There Should Be a Sense of Uniformity in the Judicial Discipline Process

Samuel C. Stretton

There should be a sense of uniformity in the discipline process.

Should there be changes in the Court of Judicial Discipline?

The Court of Judicial Discipline is constitutionally created under Article 5, Section 18 of the Pennsylvania Constitution. It replaced the old Judicial Inquiry & Review Board when the constitutional amendments were made in 1993. The judges on that court are appointed both by the governor and by the Pennsylvania Supreme Court. There are seats also for laypersons. Unfortunately, at times there are sometimes extreme delays in the appointment by either of those institutions.

The biggest problem with the Court of Judicial Discipline is the lack of continuity. The term of office for an appointee under the Pennsylvania Constitution is four years on the Court of Judicial Discipline.

No member of the court is allowed to serve more than four years. But, the person could be reappointed after one year had passed.

As a result, there is a rapid turnover of the court. Sometimes that turnover appears more pronounced because of delays in new appointments. Recently, the governor had greatly delayed a layperson and attorney appointment.

With this rapid turnover, there is not the same continuity that there are on most other courts in the commonwealth of Pennsylvania. Further, the judges serve without pay and, in addition, to their normal responsibilities as either laypersons or lawyers or judges in other courts.

As a result, particularly depending on who is the chief judge of that court, there is a wide range of results that sometimes are upsetting and confusing to those who litigate before the Court of Judicial Discipline. There is a great value to precedent because it places people on notice what to expect and lessens the chance of arbitrary or capricious decisions.

For a court, particularly a disciplinary-related court, to be effective there has to be continuity and a sense of uniformity. Without that, the court can appear to be subject to the whims of perhaps a strong president judge or public or press outcry.

Because there's such a rapid turnover and also delays in appointments, the Court of Judicial Discipline recently has lacked that sense of continuity and precedent following. The court use to have Henry Fitzpatrick, who was the lawyer for the court. Fitzpatrick was a brilliant lawyer and a very, very intelligent man. He had been the lawyer for the court since it was created in the 1990s until his untimely death several years ago in an automobile accident. Fitzpatrick, because of his longevity and his knowledge, had the ability to maintain consistency with the court and its prior rulings. With Fitzpatrick's death, there was no one with that institutional memory or institutional experience to guide the court. As a result, the year 2016 was a classic example where the court just seemed to ignore the past and do things very differently. One example is how former Justice J. Michael Eakin's case was handled. Recently, with the case of Judge Angeles Roca, the court issued an order removing her. I am very familiar with that case because I represent Roca. She had ex parte communications with former Municipal Court Judge Joseph C. Waters Jr. about getting a rule to show cause so the judgment on her son's tax case could be opened. The rule to show cause was issued and then her son handled it on his own and worked it out with the city solicitor's office. Though she should have never had those conversations, this was a judge who otherwise had a good reputation. But, the thing that was upsetting was it totally ignored years of past precedent where such conduct resulted in either reprimands or minor suspensions. In fact, the court's decision didn't even discuss those cases.

Now, perhaps I have sour grapes and, obviously, that should be considered by the reader, but the concern is the court not following past precedent and letting its own approach ignore the past. That's compounded by the fact there is such rapid turnover.

Whether, for instance, the decision of Roca was right or wrong is not the issue here. Whether the treatment of Eakin was right or wrong, again, is not the issue. There are other cases that also could be thrown in this mix. But, the issue is there cannot be disparate treatment and there has to be uniformity for an institution to fully and properly function. The institution cannot be determined by who is the president judge and the public outcry or lack of public outcry. The institution has to establish a history and pattern of the cases and stay with those unless there is some good reason to deviate. If there is a good reason, then that has to be explained.

That is not happening with the current Court of Judicial Discipline. Perhaps there is a need for a constitutional amendment to extend the time a judge is on the court or there is a need to make this a court where judges are paid salaries and allotted and required to spend substantial time fulfilling their obligations and learning the history and the law with the court.

Perhaps the answer is just as simple as an annual or semi-annual refresher course on all the law and case history of the court where the judges who are appointed are required to sit for two or three days. The seminars would be conducted both by lawyers for the Judicial Conduct Board and also by lawyers who represent judges before the board. Apparently, most judicial ethics and training is conducted by the Judicial Conduct Board lawyers. There is nothing wrong with that, but it might be a better idea to have a more diverse viewpoint. Further, the lawyers who represent judges usually have a long institutional memory. Most lawyers on the Judicial Conduct Board have only been there a few years with the exception of one lawyer who's been there now almost 15 years.

There may be no answer to the question, but there is clearly a concern when the court deviates from past practices and precedent without any real explanation. The bottom line is there has to be a sense of uniformity of discipline and the court in its decision-making can't depend on who is president judge or how loud is the public outcry. If any of that happens, due process fails and the judicial disciplinary system will be ineffective.(Click to Continue)

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There Should Be a Sense of Uniformity in the Judicial Discipline Process