Gentile, In re
| Decision Date | 23 November 1994 |
| Docket Number | No. 5,5 |
| Citation | 654 A.2d 676 |
| Parties | In re District Justice Raymond L. GENTILE, Jr. JD 94. |
| Court | Pennsylvania Court of Judicial Discipline |
Before McCLOSKEY, President Judge, and BURNS, DePAUL, McGINLEY, DONOHUE, CASSEBAUM, JOHNSON and MAGARO, JJ.
The Court has been unable to garner a majority vote required by Article V, Section 18(b)(4) of the Constitution of Pennsylvania, in order to take action on the Petition to Implement Automatic Forfeiture of Judicial Office filed July 11, 1994, by the Judicial Conduct Board. Accordingly, the Petition is hereby DISMISSED, without prejudice to the right of the Judicial Conduct Board to file formal charges, pursuant to Article V, Section 18 of the Constitution, against the respondent herein, Raymond L. Gentile, Jr., subject to the procedural rules of this Court and the Constitutional safeguards provided by Article V, Section 18(a) and (b).
Respondent's request for a stay of this matter, contained in Respondent's Answer to Petition filed July 26, 1994, is hereby DISMISSED AS MOOT.
OPINION IN SUPPORT OF REMOVAL FROM OFFICE BY JOHNSON, Judge.
The Judicial Conduct Board (the Board) has filed a Petition to Implement Automatic Forfeiture of Judicial Office. The Board requests this Court to declare that District Justice Raymond L. Gentile, Jr. (Gentile) has forfeited his judicial office as of February 19, 1993, and is thereafter ineligible for judicial office. Based upon the facts averred in the Petition and its Exhibits, and following careful review of the Petition, Respondent's Answer, and the briefs of the parties, along with consideration of the oral argument, I conclude that the provisions of the Pennsylvania Constitution relating to automatic forfeiture of judicial office have been met. Accordingly, I would grant the prayer for forfeiture of judicial office.
Gentile was elected to the office of district justice for magisterial district No. 15-3-07 in Chester County on November 18, 1989. He assumed office for a six-year term, on January 1, 1990. On August 28, 1990, a speeding citation was issued to Andrew Kramer. Gentile subsequently approached the Chief of Police of Parkesburg Borough to inquire about the possibility of "doing something" about the citation. Gentile was charged with multiple counts of official oppression and obstructing the administration of law or other governmental functions. On November 27, 1991, a jury convicted Gentile of one count of obstructing the administration of law, 18 Pa.C.S. § 5101. On February 19, 1993, the Honorable Robert J. Shenkin sentenced Gentile to serve eighteen months' probation, imposed a $5,000.00 fine, and ordered Gentile to pay the costs of prosecution. Gentile pursued a timely appeal in the Superior Court of Pennsylvania.
On May 6, 1993, while that appeal was pending, the Judicial Inquiry and Review Board (J.I.R.B.) filed a Petition to Implement Automatic Forfeiture of Judicial Office in the Supreme Court of Pennsylvania, pursuant to Article V, Section 18(l ) of the Pennsylvania Constitution. This was in accord with the practice that had been developed by J.I.R.B. On December 15, 1993, the Supreme Court entered a Rule to Show Cause why J.I.R.B.'s petition should not be granted.
The Superior Court affirmed Gentile's conviction on March 31, 1994, and denied reargument on May 26, 1994. Commonwealth v. Gentile, 433 Pa.Super. 381, 640 A.2d 1309 (1994). On May 6, 1994, subsequent to the approval of certain constitutional amendments relating to judicial discipline on May 18, 1993, by the Pennsylvania electorate, the Supreme Court entered an order discharging its Rule to Show Cause "without prejudice to the Judicial Conduct Board to proceed pursuant to Section 18 of Article V of [the] Pennsylvania Constitution." The Supreme Court's order referenced § 24(a) of the Schedule to Pennsylvania Constitution's Article V, which contains provisions relating to the termination of J.I.R.B. and the transfer of pending proceedings to the Board. The present petition filed by the Board followed
Preliminarily, we must consider issues framed in the Petition and Answer relating to this Court's jurisdiction to entertain the Petition. Gentile argues that the 1993 amendments to Article V of the Pennsylvania Constitution were not intended to operate retroactively. He further argues that the statutory jurisdiction of this Court "was not intended retroactively to apply to pending petitions for immediate forfeiture." Finally, he argues that the retroactive exercise of jurisdiction to adjudicate the pending request for forfeiture would violate constitutional proscriptions against the enactment of ex post facto laws. After considering the arguments advanced by Gentile, I would reject these contentions.
The automatic forfeiture provision in effect at the time Gentile committed the acts for which he was convicted provided:
(1) A justice, judge or justice of the peace convicted of misbehavior in office by a court, disbarred as a member of the bar of the Supreme Court or removed under this section eighteen shall forfeit automatically his judicial office and thereafter be ineligible for judicial office.
Pa. Const. art. V, § 18(l ) (repealed).
The provision contained in the Amendment of 1993, which we are asked to apply in this case, sets forth:
§ 18. Suspension, removal, discipline and other sanctions
(d) A justice, judge or justice of the peace shall be subject to disciplinary action pursuant to this section as follows:
....
(3) A justice, judge or justice of the peace convicted of misbehavior in office by a court, disbarred as a member of the bar of the Supreme Court or removed under this section shall forfeit automatically his judicial office and thereafter be ineligible for judicial office.
Pa. Const. art. V, § 18(d)(3).
The two provisions are virtually identical. The only difference in the content of subsection (d)(3) under the 1993 amendment is the elimination of the word "eighteen" following the word "section". The deletion of this one word does not affect the substance of the provision in the slightest. At the time Gentile committed these acts and was subsequently convicted, he was subject to automatic forfeiture of office if "convicted of misbehavior in office by a court." Id., § 18(l ) (repealed). When the Rule to Show Cause was discharged by the Supreme Court and the Board thereafter filed its Petition before this Court, Gentile was subject to automatic forfeiture of office if "convicted of misbehavior in office by a court." Id., § 18(d)(3).
The application of art. V, § 18(d)(3) to Gentile does not implicate issues of retroactivity. While there is a presumption against the retroactive application of statutes affecting substantive rights, a law is only retroactive in its application when it relates back and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired. 1 Pa.C.S. § 1926 (Purdon Supp.1994); McMahon v. McMahon, 417 Pa.Super. 592, 600-01, 612 A.2d 1360, 1364 (1992); R & P Services, Inc. v. Commonwealth Department of Revenue, 116 Pa.Cmwlth. 230, 235, 541 A.2d 432, 434 (1988). Substantive rights are those affected when the application of the statute imposes new legal burdens on past transactions or occurrences. McMahon, supra, 417 Pa.Super. at 601, 612 A.2d at 1364; Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corp., 54 Pa.Cmwlth. 376, 380, 421 A.2d 521, 523 (1980).
When applied to a condition existing on its effective date, even though the condition results from events which occurred prior to that date, a statute is not retroactively construed where, as here, no vested right or contractual obligation is involved. R & P Services, supra, 116 Pa.Cmwlth. at 235, 541 A.2d at 434; and McMahon, supra, 417 Pa.Super. at 601, 612 A.2d at 1364, both citing Creighan v. City of Pittsburgh, 389 Pa. 569, 575, 132 A.2d 867, 871 (1957). Section 18(d)(3), in replacing the former § 18(l ), neither adds to nor subtracts from any substantive rights of Gentile or any other judicial officer subject to its provisions. Therefore, the section may properly be applied in response to petitions filed by the Board seeking a declaration of automatic forfeiture of judicial office. McMahon, supra. While § 18(d)(3) was enacted in 1993, it was virtually a verbatim restatement of the existing constitutional provision formerly set forth in § 18(l ). Thus, by consideration and application of § 18(d)(3) to the petition now before us, I arrive at the same result as if I were to apply the identical language found in former § 18(1). Compare In re Dandridge, 462 Pa. 67, 337 A.2d 885 (1975) (). I conclude that this portion of Gentile's argument on retroactivity is without merit.
For all of the reasons set forth above, Gentile's second contention relating to an alleged lack of legislative intent to permit "retroactive exercise of this Court's jurisdiction" must also be rejected.
Gentile finally contends that the exercise of jurisdiction by this Court on this petition would violate the prohibition against ex post facto laws found in both the federal and state constitutions. He argues, in his brief
that the restrictions on respondent's right to review of his conduct by an elected judicial body, and by a tribunal empowered concurrently to review the merits of his conviction, the gravity of his offense and the appropriate judicial discipline, is a sufficiently substantial change in respondent's substantive protections and rights to review as to constitute a violation of the ex post facto clauses.
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Gentile, In re
...673 A.2d 339 543 Pa. 734 In re District Justice Raymond L. Gentile, Jr. * NO. 125 M.D. (1994) Supreme Court of Pennsylvania Aug 24, 1995 654 A.2d 676 Appeal from the Commonwealth Disposition: Quashed. * See No. 127 Judicial Administration Docket No. 1. ...