Lead Opinion
This is an appeal from an order of the Court of Judicial Discipline (the “CJD”) removing Appellant from office. One issue we' are asked to address is whether that tribunal must apply the doctrine of stare decisis when sanctioning a jurist.
I. Background
The underlying facts were developed at trial before the CJD and via stipulation.
In September 2011, Appellant called Waters regarding Judge Adam Beloff.
In June 2012, Appellant asked Waters for advice on how her son, Ian Rexach, should proceed relative to a tax judgment. By way of background, Rexach owned a barbershop in Philadelphia. The city filed a code enforcement complaint against him for failure to pay the city’s business privilege tax. When he did not appear for the hearing, a $5,000 default judgment was entered against him. He filed a pro se petition to open the judgment, which was denied due to the lack of a meritorious defense. Thereafter, a phone conversation occurred between Appellant and Waters, which included the following excerpt:
Appellant: I have a question ... Can you file a motion for reconsideration with [Segal]?
Waters: Yeah. You file a Motion for Reconsideration with her and I’ll talk to her.
Appellant: Huh?
Waters: I said file a Motion for Reconsideration with her and I’ll talk to her.
Appellant: Okay.
Waters: Why didn’t you call me first?
Appellant: Because I didn’t know it was late, so I just sent him over and I said, “Just go open it.” I didn’t know it was beyond the 30 day period. Otherwise, I would have called.
Waters: Yeah.
Appellant: It was on May 15th and he wrote in the petition, “I apologize I got this mixed up with another court date in Municipal Court,” and then he wrote, “I wish to reopen my case so that I can resolve this matter and make payments.” The bitch denied it. That’s a pretty good ... [laughs] ... I mean it’s not a legal defense, but give me a break.
Stipulation ¶ 19. From the above, Appellant understood that Waters would talk to Segal about the petition in her son’s case. Appellant did not attempt to dissuade him from doing so. See id. ¶ 20.
Appellant learned that Segal would not be presiding over these types of petitions after June 29, 2012. Seeking to ensure that Segal presided over her son’s petition, on June 29, 2012, Appellant called Waters to encourage him to intervene, as follows:
Appellant: Do you have [Segal’s] number?
Waters: Who?
Appellant: Dawn Segal.
Waters: Uh.
Appellant: He [Rexach] just filed for reconsideration. They said she [Ségal] does 'em right today. So we need to call her today.
Waters: Oh. Okay. I’ll call Dawn right now. All right.
Appellant: It’s Ian Rexach. She said call Monday and by Monday she [Segal] would have already decided the decision [sic].
Waters: All right. What’s his name?
Appellant: It’s Ian Rexach....
Waters: ... I’ll call her right now. Appellant: And it was a Motion for Reconsideration. All right?
Waters: All right. Bye-bye.
Appellant: Thank you ....
Id. II27. From this conversation, Appellant understood that Waters would call Segal on behalf of Appellant’s son in regard to the petition for reconsideration. See id. ¶ 28.
That day, Segal reviewed the petition for reconsideration and issued a rule to show cause why the relief requested should not be granted. Although Segal did not preside over Rexach’s case thereafter, on July 1, 2012, she called Waters to advise him that she “took care of it” and to “tell her it’s done.” Waters then called
In 2013, FBI agents interviewed Appellant in the presence of her attorney. During the interview, Appellant denied that judges call each other asking for favors. She stated, “We don’t do that here at all.” Stipulation ¶ 41. She added that she would never call another judge to request a favor for a family member. See id. ¶¶ 42-43. Further, when asked in the interview what she would do if a family member was in trouble, Appellant stated that “they would be on them own.” N.T., Sept. 8, 2016, at 187.
In March and May of 2015, the Judicial Conduct Board sent Appellant informal letters of inquiry concerning her contacts with other judges. At the time, Appellant was unaware that her conversations with Waters had been recorded. In her written responses, Appellant made several representations which were inconsistent with the content of the recorded phone conversations. For example, she indicated that: she only had one conversation with Waters, limited to procedural advice about a petition for reconsideration in the City of Philadelphia v. Rexach matter; after advising her son to file a motion for reconsideration, she had no further contemporaneous knowledge about the case; she never requested preferential treatment in the Rexach case and, to her knowledge, none was given; Waters never offered to request special - consideration from Segal; Appellant was not aware of whether Waters actually had contacted Segal, and if Waters did contact Segal, it was without Appellant’s knowledge. See id. ¶¶ 44-55.
After Appellant met with a federal prosecutor and heard the recordings of the intercepted conversations, she supplemented her written responses to the Board, admitting that Waters offered to speak to Segal on her behalf, and that she did not discourage him from taking such action. Appellant also conceded that she had placed a second call to Waters asking him to request that Segal consider the Rexach matter promptly, and that Waters eventually told Appellant it was “taken care of.” Appellant added, “I should have stayed out of the matter completely.” Id. ¶¶ 56-61.
Finally, despite her knowledge that Waters engaged in ex parte communication with Segal, Appellant did not report his misconduct to the Board. Id. ¶ 62.
In June 2016, the Board filed an amended complaint with the CJD alleging that Appellant had violated Article V, Sections 17(b) and 18(d)(1) of the Pennsylvania Constitution, as well as several provisions of Pennsylvania’s former Code of Judicial Conduct (the “Code”), mentioned below.
The Code provisions at issue were Canons 2A, 2B, and 3A(4), which state:
Canon 2. Judges should avoid impropriety and the appearance of impropriety in all their activities,
A. Judges-should \conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. Judges should not allow their-family, social, or other relationships to influence their judicial conduct or judgment. They should not lend the prestige of their office, to advance the .private interests of.others; nor should.they convey, ,or knowingly permit. others to convey the impression that they are in a, special position to influence the judge.
Canon 3,...
A. Adjudicative responsibilities....
(4) Judges .,. except as authorized by law, must not consider ex parte communications concerning a pending proceeding.
Code of Judicial Conduct, (1974), Canons 2A,-2B,3A(4).
Appellant filed- an omnibus pre-trial motion, which was denied. She elected not to file a responsive pleading^ however, at which point the complaint’s factual allegations were deemed denied. See C.J.D.R.P. No. 413.
The case proceeded to trial at which the CJD heard the evidence summarized above. In regards to the 2011 call, Appellant testified that' she never followed through and contacted Beloff because she “knew it was not the right thing to do.” N.T., Sept, 8, 2016, at 218; see also id at 170-71, 192. When asked about her statements, during the FBI interview, that judges do not call one another and that a family member in trouble.would be “on their own,” Appellant confirmed she gave those answers, but indicated she thought the questions pertained only to Family Court and that the term “trouble” was limited to criminal charges. See N.T., Sept. 8, 2016, at 185-87. As for the Boarcfe letters of inquiry, Appellant admitted that her responses were incorrect, but she attributed that to a lapse of memory inasmuch as the letters were sent almost three years after the events in question. See id. at 188-90, 210. During her testimony, Appellant acknowledged on several occasions that her conduct was wrong and emphasized that her ethical, failing was based solely on a desire to help her son and would never happen again. See, e.g., id. at 192-95.
By opinion and order dated October 20, 2016, the CJD found Appellant in violation of Canons 2A and 2B and, by extension, Article V, Section 17(b) of the Constitution. The court also ruled that Appellant had transgressed Article V, Section 18(d)(1) of the Constitution by engaging in conduct which brought the judicial office into disrepute and prejudiced the proper administration of justice.
In reaching its holdings, the court took note of the Board’s position that “the provision of ‘favoritism’ upon ex parte requests, for the benefit of those who are politically connected or are family members or friends of judges or other court employees, has for too long haunted our state judiciary.” In re Roca, No. 14 JD 2015, slip op. at 22 (Pa. Ct. Jud. Disc. Oct. 20, 2016) (quoting N.T., Sept. 18, 2016, at 23). In terms of whether Appellant’s conduct brought the judicial office into disrepute, the court observed that the standard for such inquiry is based on the reasonable expectations of the public, which include a belief that judicial officers will , not make
The CJD made similar underlying findings to support its conclusion that Appellant had prejudiced the proper administration of justice and violated Canons -2A and 2B. See id. at 24-26. However, the court found it unnecessary to reach the question of whether Appellant violated Canon 3A(4), as it viewed the asserted conduct underlying that charge as having been addressed in ruling on the other counts of the complaint. See id. at 26. In this regard, the court explained that, unlike in criminal matters, the full range’ of sanctions is available based on a single violation, and its discretion in imposing discipline is not grounded on the number of ways the same conduct offended the Constitution or the Code, but on the nature of the conduct together with any mitigating or aggravating circumstances. See id. at 26 (quoting In re Eagen,
After Appellant waived objections and exceptions to the CJD’s ruling, a sanctions hearing was held at which several character witnesses appeared on Appellant’s behalf. .Appellant also testified, stating that she accepted full responsibility for her actions and apologizing for her misconduct.
The GJD imposed the sanction of removing Appellant from the bench and barring her from holding judicial office in the future. See In re Roca,
The court observed, however, that “good character evidence does not undo” unethical behavior, and that the focus of a sanctions decision goes beyond the individual jurist, to the “message sent to the public and the effect on the expectation of .standards of behavior.” Id. (quoting In re Berkhimer,
It cannot be reasonably disputed that Judge Roca, at first, only requested advice from former Judge Waters, but then the conversation clearly fell into an agreement to obtain ex parte contacts with the judge handling her son’s case.However, rather than refuse to participate in this scheme, she fully complied and willfully participated in the scheme. As we have said in more detail in prior decisions, when it comes to corrupt acts and the derogation of a fair and just judicial process, a judge must have the willingness to stand up for what [is] right and buck a corrupt tide.
Id. (internal quotation marks omitted).
On appeal, Appellant alleges that the CJD’s removal-and-bar sanction is unduly harsh under the circumstances. She requests relief in the form of a lesser penalty such as a six-month or one-year suspension. In this respect, Appellant maintains, first, that this Court is not bound by the state constitutional provision, discussed below, which limits our review of the sanction imposed by the CJD to whether it was lawful. In the alternative, Appellant proffers that the punishment was not lawful because it was inconsistent with that court’s prior decisions in cases where the misconduct was not extreme.
II. Analysis
The mechanism for disciplining jurists, as reflected in the 1968 state charter, involved this Court acting in the first instance on the recommendations of an investigative body called the Judicial Inquiry and Review Board (the “JIRB”). See, e.g., In re Larsen,
A. Standard of review
Per the 1993 amendments, the Constitution is fairly explicit in prescribing the manner of our appellate review:
On appeal, the Supreme Court ... shall review the record of the proceedings of the [CJD] as follows: on the law, the scope of review is plenary; on the facts, the scope of review is clearly erroneous; and, as to sanctions, the scope of review is whether the sanctions imposed were lawful. The Supreme Court ... may revise or reject an order of the [CJD] upon a determination that the order did not sustain this standard of review; otherwise, the Supreme Court ... shall affirm the order of the [CJD].
Pa. Const, art. V, § 18(e)(2).
Pursuant to the above, and in terms of our consideration of the sanction
Appellant contends in her first issue that, after Bruno, we. are not constrained by this constitutional text. She reasons that, in Bruno, this Court “amended and limited the powers set forth in Article V, Section 18,” insofar as it “found that [its] King’s Bench authority transcended the other powers enumerated in the Constitution and the Judicial Code.” Brief for Appellant at 54. She therefore asserts that we now have “parallel jurisdiction with full rights to intervene” in a matter involving judicial discipline and, in doing so, to exercise de novo review. Id. at 55.
This is a difficult argument to maintain. It is established that “[t]he Constitution is the fundamental law of our [C]ommonwealth, and in matters relating to alterations or changes in its provisions, the courts must exercise the most rigid care to preserve to the people the right assured to them by that instrument.” Commonwealth ex rel. Schnader v. Beamish,
Additionally, Appellant misinterprets Bruno. That case related'to the interplay between this Court’s supervisory powers over the Unified Judicial System (including its employees) and thé .CJD’s constitutionally-based authority — in relation to a judicial officer charged with a felony — to issue a non-appealable order suspending the jurist on an interim basis. See Pa. Const, art. V, § 18(d)(2). The particular dispute arose when the CJD suspended Judge Bruno with pay after this Court had suspended him without pay. The conflict between the two suspension orders, in turn, raised the issue of whether, in light of the CJD’s interim-suspension authority, this Court’s supervisory powers still included the ability to suspend a jurist charged with a felony- •
The Bruno Court ultimately held that, pursuant to this Court’s King’s Bench authority, our power of interim suspension subsists alongside that of the CJD, but it should be reserved for “extraordinary circumstances.” Bruno,
Appellant reads Bruno as implying that, where the integrity of the judicial system demands it, this Court can assert its supervisory power so as to disregard the standard of review set forth in Article V, Section 18(c)(2). Such a precept cannot reasonably be derived from Bruno. Nothing in Bruno suggests that this Court’s supervisory responsibilities can justify acting contrary to, overriding, or essentially re-writing the text of the Constitution. Rather, Bruno explained that the CJD’s suspension powers,-as set forth in the Constitution, are not made to be exclusive. By contrast, the- Court éxplained, where the Constitution gives explicit “directionfs] as to how a thing is to be done,” those directions must be followed to the exclusion of all other means that may be deemed “better or more convenient.” Bruno,
Even more to the point, in issuing its interim suspension order this' Court emphasized it was not punishing the jurist or imposing disciplinary sanctions, and that the constitutionally assigned standard for this Court’s review of the CJD’s final order of discipline remained unaffected. See id. at 591,
B. Lawfulness and consistency with prior disciplinary decisions
The Constitution sets forth the sanctions which the CJD may impose upon a judicial officer subject to disciplinary action:
A justice, judge or justice of the peace may be suspended, removed fr.om office or otherwise disciplined for conviction of a felony; violation of section. 17 of this article; misconduct in office; neglect or failure to perform the duties of office or conduct which prejudices the proper-administration of justice or brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity or 'is prohibited by law; or conduct in violation of a canon or rule prescribed by the Supreme Court.
Pa. Const, art. V, § 18(d)(1); see also id. § 18(b)(5) (“A decision of the [CJD] may order removal from office, suspension, censure or other discipline as authorized by this section and as warranted by the record.”). .
There is no dispute that this authorizes the CJD to remove a judge from office upon a finding that he or she committed misconduct, either by violating a canon or rule prescribed by this Court, or by conduct which, inter alia, brings the judicial office into disrepute or prejudices the proper administration of justice. Nor is there any challenge to the conclusion that Appellant did, in fact, violate rules of conduct, bring the judicial office into disrepute, and prejudice the proper administration of justice: as noted, Appellant waived
Nevertheless, Appellant posits that the sanction of removal was not lawful in light of precedent and the facts of this case. She relies on CJD decisions in which a lesser sanction was imposed for misconduct which she views as equivalent to (or worse than) her own. Her argument rests on the premise that the CJD acts unlawfully when it sets a penalty which is out of proportion to those imposed in previous, similar cases. This reasoning implicates the issue we framed, in terms of stare decisis, for oral argument. See supra note 6. We will address the question on such terms, and — for completeness — oh the terms framed by Appellant with regard to proportionality and the record.
1. Stare decisis
“The doctrine of stare decisis maintains that for purposes of certainty and stability in the law, ‘a conclusion reached in one case should be applied to those which follow, .if the facts are substantially the same, even though the parties may be different.’” Stilp v. Commonwealth,
By contrast, the above-quoted provisions of the Pennsylvania Constitution do not reflect an' intent that the'discipline imposed in one case should become precedent for later cases. Instead, they give wide latitude to the CJD in arriving at the appropriate discipline upon a predicate finding that a jurist violated a canon or rule, or Section 17 or 18(d)(1) of Article V. Furthermore, while legal rules have developed to guide a sentencer’s discretion .when imposing a penalty in the distinct, albeit somewhat analogous, arena of criminal sentencing,, see generally Graham v. Collins,
2. Proportionality in light of prior cases
The concept that the penalty decided upon by the CJD should be subject to a proportionality requirement is not without some appeal. In some jurisdictions where, as with the pre-1993 JIRB-based framework, the commission makes a recommendation to be acted on de novo by the state supreme court, that court expressly takes precedent into account. See, e.g., Comm’n on Judicial Performance v. Boone,
The difficulty for Appellant is that no such mandate is contained, or even suggested, in Article V, Sections 18(c)(2) and 18(d)(1). For us to forge a path along the lines suggested by Appellant, we would have to overlay upon those provisions a comparative-sanctions regime that cannot fairly be gleaned from their text.
In light of this constricted review and the lack of constitutional language tending to limit or guide the CJD in arriving at the appropriate discipline, the CJD has wide discretion to fashion the appropriate penalty once it finds a predicate violation. See, e.g., Merlo,
Past judicial misconduct cases ... are of limited usefulness in setting the sanction appropriate for this case, which involves unique circumstances. We have not established, nor will we here, a “bright line” standard when, for example, reprimand or censure is. warranted as opposed to suspension. Each case is different, and is considered on the basis of its own facts.
In re Crawford,
It follows from the discretionary nature of the CJD’s discipline determination that some degree of variance is inevitable. The C JD will always be guided by its institutional obligation to protect citizens from improper judicial behavior, deter future judicial misconduct, protect the integrity of the Commonwealth’s judicial system, and re-establish the probity of, and public trust in, the court affected by the misconduct in question. This Court has repeatedly stated that imposition of discipline “not only punishes the wrongdoer, but also repairs the damaged public .trust and provides - guidance to other members of the judiciary regarding their conduct.” Berkhimer,
As well, a judge who commits misconduct after other judges have been sanctioned for similar misconduct has the benefit of the CJD’s earlier decisions. As a result, “it is not unreasonable for the second, third, or fourth judge who.commits a particular type of misconduct to receive a more severe sanction than the first judge who did so.” Gray,. A Study of State Judicial Discipline Sanctions 66; see also id. at 66-67 (documenting a trend by the Mississippi Supreme Court of increasingly severe discipline for ticket fixing, culminating in the removal of a jurist after the court’s “prior attempts to send a strong message to judges concerning ticket-fixing had ‘fallen on deaf ears’ ” (quoting Comm’n on Judicial Performance v. Chinn,
Thus, while the C'JD is certainly capable of consulting prior decisions -as a guide to the proper discipline for a given, jurist, neither the Pennsylvania Constitution nor any other legal authority which has been brought to our attention requires it to impose sanctions which are proportional to the punishment meted out in-earlier cases involving similar misconduct.
C. Lawfulness in light of the record
Appellant also argues that removal is “extremely harsh” and “unwarranted under the facts of this case.”,Brief for Appellant at 50, 58. Although she does not reference Article V, Section 18(b)(5) as such, her contention implicates ’that paragraph’s indication that the CJD may “order removal from office, suspension, censure, ’or other discipline as authorized by this section and as warranted by the record.” Pa. Const, art. V, § 18(b)(5) (emphasis added). Because' the CJD may lawfully impose discipline 'warranted by the record, the unavoidable Corollary is that a sanction which is not warranted by the record is not lawful and, as such, may' be disapproved by this Court;
, We view this as a limitation on the concept that we must so limit our review that the - only question we address, in terms of the sanction, is whether it falls into a category which is theoretically “available”-to the CJD, See, e.g., Berkhimer,
- With the above principles in rriind — and regardless of whether we would have removed Appellant from, office if we were deciding on the appropriate sanction in the first instance — we ultimately reject Appellant’s contention that her removal from office was unwarranted by the record in this ‘ case! As the CJD pointed out, although Appellant at first only sought procedural advice from Waters, via ex parte communications she eventually solicited arid accepted the assistance of both Waters and Segal to obtain special consideration for her son’s court casé — consideration which other litigants would not have had available. In the context of this controversy it is uncontested that Appellant’s actions’ prejudiced the proper administration of justice and brought the judicial office into disrepute. Against such backdrop it was not unreasonable for the CJD to conclude that Appellant’s removal from the bench was an appropriate sanction in -light of all of the facts of the case,
D. The dissent’s common law argument
Notwithstanding the abóye, Justice Do-nohue, in dissent, would read into the constitutional text a requirement of proportionality as between sanctions 'imposed in distinct, unrelated cases. To bring such requirement within" our standard of review, the dissent suggests discipline imposed by the CJD that is not proportional to that imposed in other, similar cases is unlawful.
We respectfully differ with the dissent’s premise. To provide context, we consider how the law has developed within the context of one of the most prominent punitive regimes: criminal sentencing. In that arena, a distinction has been drawn between comparative. proportionality review and inherent proportionality review. See, e.g., Commonwealth v. Gribble,
Inherent proportionality review, by contrast, asks whether the punishment is grossly disproportionate to the. crime and, as such, violates the Eighth Amendment’s prohibition of cruel and unusual punishment. See Pulley,
As a comparative-review regime is not imposed by constitutional or statutory law, the question is whether it is required by common law, as the dissent posits. The dissent articulates that Pennsylvania has a “common law tradition,” and that the CJD has a “place within our common law system.” Dissenting Opinion, at 1204. The dissent concludes from these two predicates that “the CJD must follow its own precedent in fashioning and imposing sanctions, and we must review the sanctions it imposes in the same light.” Id. It is notable, though, that the dissent does not reference
In light of the above, we disagree with the dissent’s effort to transform the doctrine of stare decisis into a requirement of comparative-proportionality review in regard to judicial discipline. We recognize that inherent proportionality review is appropriate to allow for the disapproval of a sanction grossly disproportionate to the underlying conduct. However, as in criminal sentencing — where liberty is at stake — there is nothing in our decisional law suggesting courts must undertake an analysis of distinct cases with inevitably different underlying facts to impose a vague “stare decisis” overlay onto the CJD’s discretionary decisions. As we have explained, the framework for limited and deferential appellate review of the CJD’s discretionary decisions is set forth in the state charter and embedded in this Court’s precedent. That framework does not require comparative proportionality on the CJD’s part, or review for the same by this Court.
E. The concurrence’s objections
In her Concurring and Dissenting Opinion, Justice Todd criticizes us for allowing for such final-check review under the lawfulness inquiry, labeling it as “expansive” and expressing that it could lead to this Court “routinely weighing in on the appropriateness of the sanction imposed by the CJD and substituting its judgment for that of the CJD[.]” Concurring and Dissenting Opinion at 1196. Thus, we repeat what we have already emphasized: (a) this Court does not substitute its concept of the appropriate penalty for that chosen by the CJD; and (b) an unwarranted-by-the-record penalty is limited to one which is completely out of proportion to the underlying misconduct.
To the extent the concurrence indicates that the warranted-by-the-record mandate is solely directed at the CJD and does not pertain to the proper scope of this Court’s review, see id. at 1195-96, we note that any discipline imposed by the CJD which fails to comport with its own constitutional limitations is necessarily unlawful.
Separately, the concurrence asserts that it is inappropriate for us to assess the meaning of the constitutional phrase, “warranted by the record,” absent the issue having been expressly raised and discussed by the parties. See id. at 1195-96. As Justice Todd acknowledges, however, Appellant states in her proportionality argument that her discipline is overly harsh and unwarranted by the underlying facts (i.e., the record). This subsumes a claim of “inherent disproportionality,” as discussed above. As Appellant has raised the issue, we cannot avoid determining whether she is presently entitled to appellate relief on that basis. To reach such a determination,
Notably, we are an appellate court and, as such, the scope of our appellate jurisdiction is cabined by the constitutional text. See generally Pa. Const, art V, § 2(c) (stating that this Court has such jurisdiction as is “provided by law”). Ascertaining boundaries on appellate jurisdiction is a task which appellate' courts routinely undertake sua sponte. See Commonwealth v. Saunders,
By way of rejoinder, the concurrence draws a distinction between jurisdiction and authority and asserts that this case concerns only the latter. See Concurring and Dissenting Opinion, at 1197-98. We respectfully disagree for the reasons mentioned above, most notably, that we are concerned with whether the merits of any inherent-disproportionality argument are cognizable within our appellate function in judicial discipline matters — a jurisdictional question.
III. Conclusion
For the reasons given, the penalty imposed by the CJD was lawful. That being the case, we lack authority to overturn it.
Accordingly, the order of the Court of Judicial Discipline is- affirmed.
Justices Baer, Wecht and'Mundy join' the opinion.
Justice Baer files a concurring opinion.
Justice Todd files a concurring and dissenting .opinion,
• ■ Justice Donohue files a dissenting opinion.
Justice Dougherty did not participate in the consideration or decision of this case.
Notes
.See Judicial Conduct Board Second Amended Pre-Trial Memorandum at 5-15 (setting forth the Board’s proposed stipulation); N.T., Sept. 8, 2016, at 14 (reflecting Appellant’s concurrence with the stipulation and the CJD’s acceptance of it into the record).
. Former Judge Waters later resigned from office and pled guilty to federal corruption charges. Separately, &e CJD removed former Judge Segal from office. For brevity they will be referred to simply as Waters and Segal.
, Beloff, a Philadelphia common pleas judge in the criminal division, died in 2012.
. The former code took effect in 1974 and was amended periodically. It was replaced entirely on July 1, 2014. Because the alleged misconduct occurred before that date, the former code presently applies. Accordingly, in this opinion we will refer to the Code of Judicial Conduct and its canons as reflected in the former code.
, The factors are: (1) whether the conduct is an isolated event or part of a pattern of conduct; (2) the nature, extent, and frequency of the acts of misconduct; (3) whether the conduct occurred in or out of the courtroom; (4) whether the conduct occurred in the judge’s official capacity or in her private life; (5) whether the judge has acknowledged or recognized that the acts occurred; (6) whether the judge has evidenced an effprt to change or modify her conduct; (7) the judge's length of service on the bench; (8) whether there have been prior complaints about the judge; (9) the conduct’s effect on the integrity of, and respect for, the judiciary; and (10) the extent to which the judge exploited her position to satisfy her personal desires. See id. at 742-43.
.This Court permitted limited oral presentations on this latter issue, which we framed for argument as follows:
When imposing sanctions, is the Court of Judicial Discipline bound to follow the doctrine of stare decisis and thus required to follow its prior decisions when sanctioning a jurist?
In re Angeles Roca First Judicial Dist. Phila. Cnty., No. 42 EAP 2016, Order (Pa. Mar. 31, 2017).
. An entity called a “special tribunal” performs appellate review in cases where a justice of this Court is subject to discipline. See Pa. Const, art. V, § 18(c)(1).
. The drafters used the terms scope of review and standard of review synonymously, as the phrase, "this standard of review,” clearly refers back to the three prescribed scopes of review. Although this Court- has, in some contexts, stated that scope and standard refer to different aspects of appellate review, see, e.g., In re L.J.,
. For example, a judge charged with a felony in relation to his actions as a jurist might continue to preside over criminal cases. See, e.g., In re Franciscus,
. See also Beaulieu v. Beaulieu,
. Appellant’s brief does not include a claim that the application of this aspect of our state charter is limited by any provision of the United States Constitution. For its part, the dissent suggests that our explanation of the appropriate standard of appellate review "is patently violative of the United States Constitution.” Dissenting Opinion, at 1210. However, to be lawful, the sanction issued by the CJD clearly must comport with the federal Constitution. As noted, there simply are no such issues raised in this appeal.
. Under Section 18(b)(5), the sanction must be "warranted by the record.” Pa. Const, art. V, § 18(b)(5). Notably, that provision focuses on the record of the case at hand, and not the discipline meted out in earlier cases involving different judges. The interplay between Sec-tiori 18(b)(5) and our review for lawfulness is addressed below.
. Such comparative proportionality review that does exist in other jurisdictions is largely limited to the capital sentencing context and is often (though not always) imposed by statute. See State v. Cobb,
, While the Eighth Amendment is the federal constitutional basis for inherent proportionality review, in relation to judicial discipline in Pennsylvania, such, review is mandated by in the warranted-by-the-record prerequisite, as developed above.
. Although comparative proportionality review is not constitutionally required, nothing in this opinion should be construed as prohibiting the CJD from undertaking such review if, in its discretion, it chooses to do so when imposing discipline.
. The concurrence suggests our discussion of the scope of appellate jurisdiction is dicta if Appellant has, in fact, raised an inherent-disproportionality claim. See id. at 1196-97. In this respect, the concurrence conflates the distinct questions of whether a substantive claim has been raised, and whether this Court ■ can reach its merits.
. We observe, as well, that jurisdictional questions may involve issues that go beyond whether the controversy at hand falls into a general category. Beasley, for example, pertained to a series of post-conviction claims. See Beasley,
The concurrence dismisses the import of these cases and implies that application of jurisdictional limitations leads to either "further review by the court, or dismissal” of the appeal. Concurring and Dissenting Opinion, at Ü97. Such a clean dichotomy does not always obtain, however. For instance, we are precluded by statute from reviewing discretionary aspects of a criminal sentence, see 4 Pa.C.S. § 9781(f) — a limitation this Court has recognized ás jurisdictional. See, e.g., Commonwealth v. Shiffler,
Concurrence Opinion
CONCURRING OPINION
■ I join the majority opinion in full. I agree with the majority that Article V, Section 18(c)(2) of the Pennsylvania Constitution directs this Court to review a judicial sanction imposed by. the Court of Judicial Discipline (“CJD”) to determine whether the sanction is “lawful.” Pa, Const. art. V., § 18(c)(2).
I write separately to comment upon the majority’s observation that the imposition
. Article V, Section 18(c)(2) provides that, on the law, this Court’s review is plenary; on the facts, our review is clearly erroneous; and as to sanctions, our review is whether the sanction imposed was lawful. PA. CONST, art. V, § 18(c)(2).
. This is evident in the CJD's consideration of the following nonexclusive factors the CJD adopted in In re Toczydlowski,
Concurrence Opinion
CONCURRING AND DISSENTING OPINION
I join the majority with the exception of its determination regarding our Court’s power to review a Court of Judicial Discipline (“CJD”) order on the basis of whether the sanction is “warranted by the record” pursuant to Art V, § 18(b)(6). Majority Opinion at 1190-91. Initially, I do not believe this issue was properly preserved and argued. Rather than addressing this issue, I would await targeted advocacy before deciding this significant .question of the breadth of our Court’s power of review. Moreover, and related thereto, I have serious concerns regarding the wisdom of our Court’s review under such a warranted-by-the-record standard, given- the language of the Constitution regarding our review, the history of that provision, and the resultant sweeping expansion cjf this Court’s involvement in CJD’s sanctions.
First, I do not believe this issue" is properly before us. Appellant Angeles Roca does not raise Art V, § 18(b)(5) as a basis for our review in her questions presented, does not suggest such review in her statement of the scope and standard of review, and does n’ot develop in any way the idea that our “lawfulness” review includés consideration of whether the sanction is. supported by the record. At best, and as noted by the majority, Appellant contends her sanction is ‘‘unwarranted under the facts of this case, is extremely harsh and excessive and absolutely contrary to existing case law.” Appellant’s Brief at 49. In making these bald assertions, however, she makes no legal argument grounded on the constitutional provision on .which the majority
Second, I have serious concerns about divining our Constitution to provide such broad warranted-by-the-record review. First, the constitutional language regarding our Court’s review of a jurist’s ultimate sanction is clear and limited: we review CJD decisions for “whether the sanctions imposed were lawful.” Art V, § 18(c)(2). The majority, citing our consistent prior precedent, comes to the reasonable conclusion that “lawful” is the equivalent of “available.” See, e.g., In re Merlo,
Further, the 1993 amendments brought to Pennsylvania a significant overhaul of the process for disciplining jurists, created the independent CJD, and circumscribed this Court’s review of the discipline of judges; indeed, the amendments stripped our review authority entirely where a Justice is the subject of the discipline. See Pa. Const, art. V, § 18(c)(1). These amendments to our Constitution thus suggest the framers envisioned a more cabined review by our Court, rather than the more expansive one conceived by the majority.
Moreover, the ramifications of our Court reviewing for whether a sanction is “warranted by the record” gives me pause. Such review gives our Court significant power over CJD’s decisions, and could lead to our Court routinely weighing in on the appropriateness of the sanction imposed by the CJD and substituting its judgment for that of the CJD under the guise of appellate review — as if the CJD were merely an advisory board. This could severely erode the independence of the CJD. Indeed, the majority’s interpretation of a warranted-by-the-record review seemingly results in a standard of review more akin to that of abuse of discretion or even de novo — standards which would appear to be in conflict with the express constitutional language seemingly limiting, our review.
Finally, the majority’s tack to reach the warranted-by-the-record issue by deeming it a jurisdictional matter merits comment. Majority Opinion at 1193-94. First, the majority’s discussion regarding the “scope of appellate jurisdiction” and its claim that we can thus reach the warranted-by-the-record issue sua sponte, constitutes obiter dicta if, indeed, as asserted by the majority,
Furthermore, the majority’s assertion that we may raise this issue sua sponte, is misplaced, as it conflates .concepts of a court’s • appellate, jurisdiction with the scope and standard of its review. Specifically, “^jurisdiction over the subject matter is conferred solely by the Constitution and laws of the Commonwealth. The test for whether a court has subject matter jurisdiction inquires into the competency of the court to determine controversies of the general class to which the case presented for consideration belongs.” In re Administrative Order No. 1-MD-2003, Appeal of Troutman,
As is evident from the above, the issue raised by the majority does not go to subject matter jurisdiction. Rather, it implicates the “manner of our appellate review” of CJD sanctions, i.e., our standard of review — be it de novo (as asserted by Appellant), limited to whether the sanction is available, or something in between as now suggested by the majority: See Majority Opinion at 1184-85. Contrary to the majority’s claims, this is not a jurisdictional question because, regardless of what we' determine our proper standard of review to be — narrow or broad — and, more specifically, regardless of whether we adopt the majority’s warranted-by-the-record review, our Court retains jurisdiction to conduct its review of the CJD’s decisions. Stated another way, regardless of the answer to the majority’s “jurisdictional” query, we will not dismiss the appeal for wont of jurisdiction. Indeed, this fact is what makes the cases' cited by the majority clearly distinguishable from this matter: in those cases, the answer to the jurisdictional question led to either further review by the court, or dismissal. Majority Opinion at 1193-94 (citing, e.g., Commonwealth v. Saunders,
Moreover, the majority’s citation to cases in the unique area of bifurcated sentencing jurisdiction provides no further support, reaffirms a categorical approach to jurisdiction, and actually supports the principle that questions regarding the proper standard of review are not jurisdictional. Certain of the cases cited by the majority stand for the unremarkable principle that jurisdictional issues are categorical — specifically, claims that implicate the discretionary aspects of sentencing are beyond
' In short, contrary to the majority’s novel jurisdictional' “scope” construct, which the majority asserts may be raised sua sponte, questions regarding our Court’s proper standard of review of CJD-imposed sanctions are non-jurisdictional and must be • adequately preserved and argued by the parties before we may address them. Here, Appellant’s unadorned, single-sen-, tence argument, which cites to none of the constitutional provisions the majority interprets, fails to preserve an issue of such constitutional import.
Accordingly, while I join the majority in large measure, I do not believe that the question of whether our Court has the authority to determine that a sanction is “warranted by-the record” is before us. I would withhold any such a determination until we are presented with a case -raising this issue, with focused advocacy. -
Dissenting Opinion
DISSENTING, OPINION
In this appeal as of right, Philadelphia County Court of Common Pleas Judge An-geles Roca (“Roca”) challenges the December 16, 2016 Order and Opinion of the Court of Judicial Discipline (the “CJD”) permanently removing her from judicial office.
This Court’s standard of review
On appeal, the Supreme Court ... shall review the record of the proceedings of the [CJD] as follows: on the law, the scope of review is plenary; on the facts, the scope of review is clearly erroneous; and as to sanctions, the scope of review is whether the sanctions imposed were lawful. The Supreme Court ... may revise or reject an order of the [CJD] upon a determination that the order did not sustain this standard of review; otherwise, the Supreme Court ... shall affirm the order of the [CJD],
Pa. Const, art. V, § 18(c)(2). The Majority holds that we are bound only to determine whether a sanction is “lawful” and thát our standard of review in this regard is perfunctory, as it only allows this Court to confirm that the sanction imposed by the CJD was “available.” See Majority Op. at 188-89, 1190-91. In reaching this conclusion, the Majority indicates that “available” sanctions are those sanctions that the CJD may impose or, to be more specific, those sanctions listed in Article, V, Section. 18-namely, “removal from office, suspension, censure or other discipline •....” Pa. Const, art. V, § 18(b)(5). That sanctions must also be “warranted by the record” is, according to the Majority, the only limitation on the concept that a “lawful” sanction must merely fall “into a category which is’ theoretically ‘available’ to the CJD.” Majority Op. at 1190. I challenge the Majority’s interpretation of our standard of review on several ‘grounds.
First, contrary to the Majority, I believe we must engage in meaningful constitutional interpretation regarding our intended standard of review. In interpreting constitutional language, “the fundamental rule of construction which guides [this Court] is
Although this Court has previously equated “lawful” with “available,” we have never explained our rationale for excluding any other basis for finding a sanction unlawful. See, e.g., In re Merlo,
Moreover, according to the Majority’s interpretation, our standard of review amounts to nothing more than a cross-reference to confirm that the sanction imposed is one mentioned in Article V, Section 18(b)(5). Therefore, it follows that if the CJD imposes a sanction of “removal from office, suspension, [or] censure,”
It is clear that the primary reason for the amendment, especially in the eyes of the voters, was to separate the investigatory and adjudicatory functions within the disciplinary system, not to insulate this Court entirely from the process of judicial discipline. In fact, the plain language text of the proposed amendment provided to the voters in May 1993 included nothing about this Court’s standard of review of sanctions and nothing to suggest that this Court should be shielded from intervention in the judicial disciplinary system generally. See Pittsburgh Post-Gazette, Ballot Questions, 1993 WLNR 2119966 (May 16, 1993).
What is also clear is that Article V, Section 18 grew out of the work and recommendations of the Governor’s Judicial Reform Commission, commonly known as the Beck Commission after its chairperson, the Honorable Phyllis Beck. See Pennsylvania Court of Judicial Discipline, A Brief History of the Formation of the Court of Judicial Discipline 1993-1994-, at 2.
We granted oral argument to consider the CJD’s obligation to adhere to the doctrine of stare decisis in imposing a sanction in order for the sanction to be “lawful.” In light of the Majority’s disposition of this case — which, in my view, bestows upon the CJD powers that the people of this Commonwealth never intended for it to have— I begin my discussion by anchoring the doctrine of stare decisis within the broader framework of our legal system. Most no-mocratic nations, i.e., nations that adhere to the rule of law, follow one of two major legal traditions that act to cabin the discretion of judges: the civil law system or the
■The courts of Pennsylvania, however, like courts in forty-nine
Adherence to stare decisis is a hallmark of our common law system. Estate of Grossman,
Stare decisis, however, is not “an iron mold into which every utterance by a Court, regardless of circumstances, parties, economic barometer and sociological climate, must be poured, and, where, like wet concrete, it. must acquire an unyielding rigidity which nothing later can change.” Ayala v. Philadelphia Bd. of Pub. Ed.,
. While the CJD was established to play a unique role within our common law judicial system, it is indisputably situated within that system. It was created within Article V, The Judiciary, of the Pennsylvania Constitution. Pursuant to Article V, jurists (other than Supreme Court justices) are guaranteed, an appeal to this Court, the highest court in the judicial branch of government. See Majority Op. at 1184-85 (citing Pa. Const, art. V,, § 18(c)(1)). If, as the Majority suggests, the citizens of Pennsylvania had intended to create a court whose decisions need not defer .to precedent — a court unlike any other in our Unified Judicial System
The Majority attempts to diminish the importance of stare decisis in the CJD sanctioning context by reference to our criminal sentencing regime where, the Majority suggests, judges have broad discretion to impose individualized punishment. See Majority Op. at 1191-92 (suggesting that the Eighth Amendment to the United States Constitution is the only limitation on such broad discretion). The Majority’s line of reasoning obfuscates an important distinction between criminal sentencing and CJD sanctioning. In the context of criminal sentencing, a sentencing judge’s discretion is significantly constrained in a variety of ways, and the Eighth Amendment is by no means the only safeguard against judges handing down capricious punishments. Notably, the sentence a judge may impose in a criminal case is expressly circumscribed by' statute. For each class of crime, the Sentencing Code sets forth a maximum term of imprisonment or, in the case of financial penalties, the maximum dollar amount a defendant may be fined. The court is not permitted to impose a sentence or fine that exceeds this statutory maximum under any circumstances. See, e.g., Commonwealth v. Bradley,
Moreover, pursuant to the Sentencing Code, a judge must consider the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing. In Commonwealth v. Walls,
None of the foregoing statutory limitations exist with respect to CJD sanctions. In my view, this fact renders adherence to stare decisis by the CJD imperative because, as demonstrated by the instant matter, no other mechanism exists to curb that court’s discretion in sanctioning in any way. Stare decisis alone stands between the CJD’s intended status as a fair and rationale Article V court of record, on the one hand, and a tribunal in the ilk of a discredited star chamber, on the other. See supra, n.7.
Contrary to the Majority’s implication, Roca is not asking this Court to adopt a strict requirement, of, proportionality in sanctioning. See Majority. Op. at 1187-88. Instead, her complaint is that the CJD’s published opinion is largely devoid of any analysis of prior cases in which sanctions were imposed and makes no effort to explain its deviation from prior case law or otherwise support the sanction imposed.
Roca directs this Court’s attention to numerous prior CJD cases imposing sanctions less severe than permanent removal from the bench, while credibly characterizing the misconduct in those cases as either more extreme or analogous to the circumstances in this case. See id. at 63-79.
Given the similarities to the case at bar, the CJD, in keeping with the discretion-limiting doctrine of stare decisis, should be expected, at the very least, to consider its decisions in these three cases when rendering its sanction decision as to Roca. The facial similarities in the facts of these cases suggest that. outcomes should be similar. Since they are not, the sanctioned jurists, the rest of the judiciary and the public should know why. Such required analytical reporting by the CJD is the only restraint on its discretion. Otherwise, if it so chooses, the CJD can punish foes and reward friends with impunity. .
The Majority expresses a degree of sympathy for Roca’s position, but posits that “it is difficult to draw equivalence among distinct cases of judicial misconduct, as the factors involved in each instance will naturally vary.” Majority Op. at 1189. This statement is true, but entirely irrelevant to the question of the application of stare decisis. It is axiomatic that no two cases are perfectly identical, but the other courts of this Commonwealth, including this Court, do not as a result abandon all efforts to follow stare decisis. That it may be challenging for the CJD to' analyze, analogize or distinguish one case by reference to prior cases'does not relieve that court from its inherent obligation to do SO.
It cannot be reasonably disputed that Judge Roca, at first, only requested advice from former Judge Waters, but then the conversation clearly fell into an agreement to obtain ■ ex parte contacts with the judge handling her son’s case. However, rather than refuse to participate in this scheme, she fully complied and willfully participated in the scheme. ■
In re Roca,
The record in this case makes clear that Roca did not “fix” or control the outcome of any case, and that her misconduct was limited to assisting her son in his efforts to open a default judgment to obtain a hearing on his tax case (in which she had no other involvement). Id. at 62. The city’s case against him was not dismissed; in fact, he paid a negotiated tax settlement of $477.00. Majority Op. at 1180-81 (citing Stipulation, ¶¶ 30-39). Moreover, Roca expressed á deéply felt remorse regarding her involvement in the process.'As Roca urges, numerous individuals testified as to her excellent character, her “workhorse” ethic, her- respect for everyone in ■ the courtroom, and her lack of any prior allegations or incidents of misconduct. Roca’s Brief at 63-64.
Nonetheless, the Majority concludes, “it was not unreasonable for the CJD to conclude that Appellant’s removal from the bench was an appropriate sanction in light of all of the facts of the case.” Majority Op. at 1190. Here, three jurists connected by circmpstance — a convicted felon, a repeat
In connection with its “warranted by the record” analysis, the Majority posits that the United States Constitution requires only “inherent-proportionality” review in noncapital criminal sentencing decisions, pursuant to the Eighth Amendment’s prohibition on cruel and unusual punishment, but does not, absent “gross disproportion-ality,” require comparison to other sentences. Id. at 1191 (citing federal cases and one Ohio state court case). Arguing for a similarly limited standard of review as to CJD sanctions, the Majority characterizes the CJD’s “warranted by the record” requirement as that tribunal’s equivalent to an Eighth Amendment “inherent proportionality” requirement, concluding that we may review for gross disproportionality between the judicial misconduct and the sanction imposed, but need not grapple with precedent in doing so. Id. at 1191-92 n.15; see also id. at 1188-89 n.13.
The previously discussed distinctions between our statutorily prescribed criminal sentencing regime and the judicial sanctioning regime set forth in Article V, Section 18 render the Majority’s Eighth Amendment analogy entirely inapposite. As an initial matter, when evaluating proportionality challenges to noncapital sentences pursuant to the Eighth Amendment, we employ the three-factor test set forth in Solem v. Helm,
As the Third Circuit has aptly observed, the “narrow proportionality” test set forth in Solem is premised upon a principle of substantial deference “to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.” United States v. Rosenberg,
In matters of judicial discipline, however, the CJD is not constrained by any principle of deference to the legislature because, as discussed supra, no statutes exist to regulate judicial sanctions. Accordingly, the premise underlying narrow proportionality review in the Eighth Amendment context is inapplicable as to our review of CJD sanctions. Stare decisis necessarily fills the gap as a curb to limit unbounded discretion in imposing sanctions.
Our treatment of attorney misconduct cases reflects a similar principle. In the absence of statutory limitations with regard to sanctioning attorneys, this Court employs stare decisis in every attorney discipline case to determine appropriate
In Cappuccio, for example, we grappled with whether to impose a sanction of disbarment (which is “properly reserved for the most egregious matters”) as opposed to “the next most serious sanction, a. five-year suspension.” Id. at 1239. Noting the significance of attorney Cappuccio’s position as a public official at the time he committed the misconduct in, question, we conducted a lengthy analysis of his case by reference to our disciplinary decisions in more than five prior cases, comparing and contrasting the nature of the respondent’s misconduct to the misconduct in those past matters. See id. at 1239-41. Ultimately, we honed in on our decision in Office of Disciplinary Counsel v. Christie,
[Attorney Cappuccio] is similarly situated to attorney Christie in terms of the nature of his misconduct, his lack of disciplinary history and prior criminal record, his cooperation, character testimony, expressions of remorse, and efforts at rehabilitation. However, there are two critical distinctions supporting disbarment. First, [Cappuccio] did not present expert testimony meeting the Braun standard, and therefore, is not entitled to the type of consideration that was given to attorney Christie; given that Christie received the most severe sanction short of disbarment, the distinction is significant. Second, as discussed, [Cappuccio]’s position as a Chief Deputy District Attorney aggravates the misconduct, particularly in light of the facts here. At the time [Cappuccio] was engaging in his ongoing criminal conduct by endangering' the welfare of minors and corrupting the morals, his public persona was that of a law enforcement figure in the county, prosecuting members of the public for similar crimes. In our view, any sanction short of disbarment in these circumstances threatens the integrity of the legal system, undermines our very serious duty to protect the public, and fails to give appropriate weight to [Cappuccio]’s status as a public official.. Accordingly, given these two distinctions, which indicate that a more severe, sanction than that imposed in Christie is warranted in this case, we conclude that disbarment is the appropriate sanction.
Id. at 1240-41.
The foregoing is an example of the sort of loyalty to stare decisis I would require the CJD to demonstrate when determining how to sanction jurists. There is no constitutional basis for a discrepancy and it makes no sense that attorneys in this Commonwealth are entitled to the degree of fairness and predictability that flows from adherence to precedent,' while our elected judges are, as the Majority holds, stripped entirely of that right.
Again, what is “lawful” is that which is allowed by the law and there are myriad sources of the law. As one example, the Majority’s breathtakingly narrow definition of our standard of review is patently violative of the United States Constitution. For example, if an available sanction were challenged as violative of th’e Equal Protection clause of the United States Constitution, see U.S. Const, amend. XIV, § 1, or on due process grounds, see id., we would
The Majority’s reliance on the absence of an express constitutional mandate to follow stare decisis in Article V, Section 18, see id. at 1188-89, is meaningless. As noted, the CJD’s obligation to adhere to stare decisis is inherent in its designation as an Article V court of record in Pennsylvania, where all courts of record, including this one, apply stare decisis as a matter of course. No special language is necessary to understand that the CJD must follow its own precedent. Notably, there is no express constitutional mandate for this Court or any other in the unified judicial system to follow stare decisis, but we do so regularly and without exception. Article -V, Section 18 also does not mandate that the CJD follow the United States Constitution, but the Majority agrees that it .must. See Majority Op. at 1188-89 n.ll. Nor does Article V, Section 18 mandate that the CJD is limited by other provisions of the Pennsylvania Constitution, but we know that it is. See supra n.4 (discussing In re Melograne,
While purporting to uphold “our judicial system ... as the symbol of fairness and justice, and of equal protection dispensed to every citizen,” In re Roca,
, Roca does not dispute that she violated provisions of the Code of Judicial Conduct, engaged in conduct that prejudiced the proper administration of justice and brought her judicial office into disrepute.
. The Majority accepts as appropriate, without analysis, the use of the term "scope of review” as a proxy for "standard of review” in Article V, Section 18(c)(2), despite this ■ Court’s express distinction between scope and standard of review:
"Scope of review” refers to the confines within which an appellate court must conduct its examination. In other words, it refers to the matters (or "what”) the appellate court is permitted to examine. In contrast, "standard of review” refers to the manner in which (or “how”) that examination is conducted.
Morrison v. Com., Dep’t of Pub. Welfare, Office of Mental Health (Woodville State Hosp.),
As to sanctions, it is- clear that "scope of review,” as that phrase is used in Article V, Section 18(c)(2), cannot be assigned its peculiar and appropriate meaning,. It must have been intended to mean "standard of review,” since the constitutional provision is concerned with the question of "how’’ this Court’s review is conducted. Although this Court has recognized that "scope of review” and "standard of review” were "often — albeit erroneously — used interchangeably,” we have also made it clear.that any confusion regarding the terms was unfounded because, plainly, "the two terms carry distinct meanings and should not be substituted for one another.” Morrison,
. Ironically, while disavowing the importance of precedent as to the CJD's decision-making process, the Majority follows the precedent of this Court to conclude that "lawful” does not encompass stare decisis, a most basic precept of the common law.
. As stated, Article V, Section 18 also permits the CJD to impose "other discipline as authorized by this section Pa. Const, art. V., § 18(b)(5), a phrase not directly implicated here since Roca was removed from office. However, in In re Melograne,
. The referendum question on judicial discipline read as follows:
Shall Article V of the Pennsylvania Constitution be amended to establish a Judicial Conduct Board to investigate complaints of judicial misconduct, to establish a Court of Judicial Discipline to adjudicate charges of judicial misconduct, to abolish the Judicial Inquiry and Review Board, and, except as provided by law, to bar payment of corn-pensation, including retirement benefits, to justices, judges, and justices of the peace suspended, removed, or barred from judicial office for serious misconduct?
Pittsburgh Post-Gazette, Ballot Questions, 1993 WLNR 2119966 (May 16, 1993).
. This publication is available upon request from the Court of Judicial Discipline.
.A failed alternative, the Court of Star Chamber — a supplement to the common law courts in England during medieval times — was born of the king's sovereign power and privileges, was not bound by the-, common law and lacked the safeguards that common law procedures typically provided'. As a result, it be- ' came infamous for its "bizarre and excessive sentences” and was ultimately abolished by an act of Parliament in 1641. Edward P. Cheyney, The Court of Star Chamber, 18 Am. Hist. Rev., 729, 742-44 (1913). In the Star Chamber, "every conviction ... involved imprisonment for a longer or shorter period according to the will of the court or the pleasure of the sovereign.” Id. at 743. When fines were: imposed ’as punishment, "the amount of money ... was graduated rather according to the need of impressing the community than in proportion either to the immediate offense or to the ability of the culprit to pay it.” Id. at 744.
. Within the United States, only Louisiana maintains a hybrid legal system with elements of both civil and common law traditions. See, generally, Mary Garvey Algero, The Sources of .Law and the Value of Precedent: A Comparative and Empirical Study of A Civil Law State in A Common Law Nation, 65 La. L, Rev. 775, 792 (2005); see also In re Orso,
. Of course, judges in a common law system are often constrained in their decision-making by statutes as well. In many areas of law, the General Assembly’s enactments -provide an •. - additional discretion-limiting layer. As discussed infra, the criminal sentencing context is one such area.
. A judge may intentionally object to established case law in an effort to engage in a reevaluation of precedent, perhaps because the precedent has become irrelevant or antiquated in the contemporary climate. According to the Majority, however, the CJD is apparently empowered to reject established case law in every matter it decides, and the CJD need not even explain how the circumstances have changed from one time period to another. The CJD has now existed for twenty-four years — a little more than two decades — not centuries. To the extent the CJD may legitimately rely on a‘ changing contemporary climate, it should bis capable of explaining the change without much difficulty. "
. There is no question that the CJD’s placement in Article V of our Constitution indicates its establishment as a court like all others “within the Unified Judicial System over which this Court presides.” See In re Bruno,
. The CJD apparently believes it is bound to follow some of its precedent since it considered the ten factors for the imposition of sanctions it announced in In re Toczydlowski,
. See, e.g., In re Singletary,
. Notably, the Majority cites to cases from our sister state court? for the proposition that "past judicial misconduct cases ... are of limited usefulness,” In re Crawford,
Moreover, in In re Crawford, the Wisconsin Supreme Court noted that while “each case is different, and is considered on the basis of its own factsf,] [t]his individualized approach to ‘discipline -... is guided by some general principles." In re Crawford,
. It would appear that Roca's removal sanction resulted, in large part, from guilt by association with former Philadelphia Municipal Court Judge Joseph C. Waters ("Waters”) and former Municipal Court Judge Dawn Se-gal ("Segal”), who themselves were involved in a far broader range of judicial misconduct. As noted by the Majority, Waters resigned from office and pled guilty to federal corruption charges as a result of an FBI investigation into his misconduct. Separately, the CJD removed Segal from office. Majority Op. at 1179-80 n.2. In contrast to Roca’s isolated ex parte communication with Waters regarding her son’s tax case, Segal was found to have "engaged in repeated ex parte communications with Waters about three cases, Houdini v. Donegal, City of Philadelphia v. Rexach, and Commonwealth v. Khoury. With regard to the Khoury case, the record demonstrates that [Segal] made repeated improper ex parte contacts, and later gave assurances to Waters that she would do his bidding, i.e., that these communications were used by the Respondent in her deliberations about these cases.” In re Segal,
. Roca has not raised an Eighth Amendment challenge and the Majority, although adopting the rubric of such a challenge, does not embrace following the three-part test for gross disproportionality. If it had done so, pursuant to Solem, and absent the ability to compare legislative determinations as to the gravity of distinct forms of misconduct, proportionality review of CJD sanctions under the Eighth Amendment would necessarily require comparison to CJD precedent.
The Majority’s commentary regarding comparative proportionality review for Eighth Amendment purposes in the context of death penalty cases further highlights that discretion must be cabined. While Eighth Amendment comparative proportionality review is not constitutionally required, many states introduced it by statute "in an effort to limit jury discretion and avoid arbitrary and inconsistent results” following the United States Supreme Court’s decision in Furman v. Georgia,