Larsen, In re
| Decision Date | 03 June 1994 |
| Citation | 655 A.2d 239 |
| Parties | In re Justice Rolf LARSEN. |
| Court | Pennsylvania Court of Judicial Discipline |
Before McCLOSKEY, President Judge, and BURNS, MUTH, DePAUL, McGINLEY, DONOHUE and JOHNSON, JJ.
Before the Court is the Application for an Interim Order filed by the Judicial Conduct Board (Board). The Application requests the suspension without pay of Justice Rolf Larsen, a justice of the Supreme Court of Pennsylvania, pursuant to Article V, § 18(d)(2) of the Pennsylvania Constitution, which authorizes this Court to suspend, with or without pay, any justice, judge or justice of the peace against whom has been filed an indictment or information charging a felony.
On January 7, 1994, the Attorney General of Pennsylvania filed a criminal information in the Court of Common Pleas for the Fifth Judicial District (Allegheny County). The information, docketed at No. 93-13844 Criminal, charged Justice Larsen with 27 felony counts. Prior to trial, 11 counts were dismissed.
On March 10, 1994, the Board filed an Application with this Court requesting that Justice Larsen be suspended with pay based on the filing of the information, (the prior proceeding). 1 This matter was filed at Docket Number 3 JD 94, which is also the docket number of the Application presently before the Court. A hearing was held on March 24, 1994, at which time the Board requested that the court enter an interim order of suspension with pay, which would be converted to an interim order of suspension without pay upon a finding of guilt. By Order of Court dated March 25, 1994, the Board's request was denied without opinion. The criminal case was tried before a jury in the Court of Common Pleas of the Fifth Judicial District. On April 9, 1994, the jury acquitted Justice Larsen of 12 felony counts under Section 13 of the Controlled Substance, Drug, Device and Cosmetic Act (the Controlled Substance Act) 2 and entered guilty verdicts on Counts I and II of the information, Criminal Conspiracy, 18 Pa.C.S. § 903. 3 The Board filed the present Application on April 18, 1994, requesting suspension without pay based on the information and jury verdict.
Justice Larsen filed an Answer and New Matter to the Application on May 5, 1994 and the Board filed a Response to New Matter on May 16, 1994. By order of May 2, 1994, a hearing on the matter was set for May 25, 1994. At the hearing, exhibits showing the criminal information and jury verdicts as well as the pleadings and Court order of the prior proceeding were admitted into evidence. Counsel for Justice Larsen moved that the hearing be bifurcated so as to allow the introduction of testimony at a later date. The Court denied the motion, concluding that only certain narrow issues were properly before the Court. Respondent Justice Larsen requested an opportunity to address the Court as co-counsel in his case. This request was denied by the Court from the bench. It should be noted, however, that Justice Larsen was offered an opportunity to take the stand as a witness on his own behalf, subject to cross-examination by the Board, which he declined to do.
An amendment to Article V of the Pennsylvania Constitution was adopted by the electorate on May 18, 1993 changing the judicial discipline system in Pennsylvania (the 1993 Amendment). 4 Under the prior constitutional provision, a Judicial Inquiry and Review Board (JIRB) investigated complaints of judicial misconduct. 5 If JIRB found "good cause" to believe that misconduct had occurred, it filed a formal recommendation for disciplinary action with the Supreme Court of Pennsylvania. The Supreme Court, in its discretion, could adopt, reject or modify JIRB's recommendation. There was no appeal from an order of the Supreme Court.
The 1993 Amendment abolished JIRB and established a new two-tiered system of judicial discipline. Under the new system, the Board investigates allegations of misconduct and may file formal complaints with this Court. The Court then decides the merits of the case and, in appropriate cases, enters an order of discipline. Appeals from decisions of the Court are to the Supreme Court, unless the respondent judicial officer is a Supreme Court justice, in which case a Special Tribunal of seven judges of the Superior and Commonwealth Courts, who are not members of the Board or of this Court, hear the appeal. The present matter does not involve such a formal complaint. Rather, the Board's Application has been filed under the authority of Art. V, § 18(d)(2), which provides as follows:
Prior to a hearing, the court may issue an interim order directing the suspension, with or without pay, of any justice, judge or justice of the peace against whom formal charges have been filed with the court by the board or against whom has been filed an indictment or information charging a felony. An interim order under this paragraph shall not be considered a final order from which an appeal may be taken.
Prior to the 1993 amendment, the Constitution contained no provision relating to an interim order of suspension.
In this case of first impression under the 1993 Amendment, Justice Larsen, in his Answer and at oral argument, has raised and argued a number of issues relating to jurisdiction of this Court. These issues, which shall be discussed in succession, are as follows:
a. The 1993 Amendment is not self-executing, but rather requires the promulgation of Rules of Procedure by the Board and the Court which have yet to be promulgated for a case of this type.
b. The denial of the Board's initial application and the lack of new grounds for the filing of an application operate to bar this Court from acting on the present Application.
c. The jury verdicts of guilt do not constitute felonies, thus depriving the Application of its constitutional basis.
Justice Larsen first argues that the 1993 Amendment is not self-executing, but rather requires the adoption of Rules of Procedure by both the Board and the Court prior to any action by these constitutionally-created bodies. The argument is apparently based on the constitutional language in § 18(a)(6) 6 and § 18(b)(4) of Article V. 7 Both the Board and the Court have adopted Interim Rules of Procedure. Neither set of Interim Rules has any provisions specifically governing the present proceeding.
We believe that the Constitutional Amendment is self-executing, despite the mandatory language requiring the Board and the Court to establish Rules. The noted commentator Robert E. Woodside states:
Most provisions of a constitution are meant to be self-executing; but some require legislation to make them operative. A provision in the Constitution is self-executing when it can be given effect without the aid of legislation and when the language does not indicate an intent to require legislation.
R. Woodside, Pennsylvania Constitutional Law (1985) at 71.
Constitutional provisions creating a court are usually self-executing. 16 C.J.S. Constitutional Law Section 49 (1984) and cases cited therein. A constitutional provision fixing the jurisdiction of a court, which is explicit in meaning, mandatory in character, and complete in itself is usually self executing and operative without legislative action. Id. Therefore, we conclude that the failure to promulgate rules cannot operate to deprive either the Board or the Court of their constitutionally-granted jurisdiction. Rather, the remedy, if any, would be an action in mandamus to compel the adoption of rules.
proceeding operate to bar this Court from acting
on the present Application?
Justice Larsen next argues that, even assuming the 1993 Amendment to be self-executing, the denial of the Board's Application in the prior proceeding operates to bar action by this Court on the present Application. As earlier noted, the basis for the Application filed in the prior proceeding was the existence of a pending information charging a felony. Because neither formal charges nor any new criminal indictment or information charging a felony have been filed, Justice Larsen contends that no new independent basis to act exists. We disagree.
The authority as to whether or not to grant an interim suspension with or without pay is constitutionally vested in this Court's discretion, the sole condition precedent being the filing of formal charges before the court or the filing of an indictment or information charging a felony. The latter occurred on January 7, 1994. We believe it would be entirely proper, within the discretion vested in this court, to deny an initial request but to grant a subsequent motion based on changed circumstances. Similarly, any interim order entered by this court is subject to a request by the respondent judicial officer for modification or vacation of the order, again based on changed circumstances. This is the very nature of an interim order.
In the present case, however, Justice Larsen's argument must fail for another reason. The Board's initial request was for suspension with pay, with a further request that such suspension be automatically converted to suspension without pay upon a finding of guilt. The present Board application requests suspension without pay, which is before the Court for the first time.
Section 18(d)(2) clearly allows this Court to enter an interim order based on an indictment or information only when such indictment or information charges a felony. As noted, the information in the present matter contained 27 Counts, all of which are defined by statute as felonies. 8 We will, however, limit our discussion and analysis to the two conspiracy counts on which guilty verdicts were rendered.
Justice Larsen's argument here is two-fold. First, he maintains that the jury's acquittals...
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