In re Bruno

• Citation: 69 A.3d 780
• Decision Date: 24 May 2013
• Docket Number: No. 3 JD 13,3 JD 13
• Parties: In re: Mark A. Bruno
• Court: Court of Judicial Discipline of Pennsylvania

69 A.3d 780

In re: Mark A. Bruno

No. 3 JD 13

Court of Judicial Discipline of Pennsylvania

May 24, 2013

BEFORE: Honorable Bernard L. McGinley, P.J., Honorable Charles A. Clement, Jr., Honorable John R. Cellucci, Honorable Timothy F. McCune, Honorable Robert J. Colville, Honorable Carmella Mullen, JJ.

OPINION BY PRESIDENT JUDGE McGINLEY

ORDER

AND NOW, this 24^th day of May, 2013, upon consideration of the Judicial Conduct Board's Petition for Suspension of Respondent Without Pay, and of Respondent's Answer thereto, and of the Amended Petition of the Judicial Conduct Board for Interim Suspension of Respondent Without Pay, and of the testimony given and arguments made on April 8, 2013, upon the authority conferred on this Court in Article V, Section 18(d)(2) of the Pennsylvania Constitution, the said Petition is denied, and it is hereby ORDERED that the Respondent is suspended with pay until further Order of this Court.

This Order is effective as of February 1, 2013 and any compensation which has been withheld from Respondent since that date shall be immediately paid to him.

I. INTRODUCTION

We have before us the Petition of the Judicial Conduct Board (“Board”) for an Interim Order Suspending Respondent, Mark A. Bruno, From His Judicial Office Without Pay, filed January 31, 2013. The Petition is based on an Indictment filed on January 29, 2013 in the United States District Court for the Eastern District of Pennsylvania, charging Respondent with felonies. The Board seeks this order under Article V, § 18(d)(2) of the Pennsylvania Constitution. That section provides:

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.¹

In addressing the question whether we should act to enter an order of interim suspension with or without pay under Section 18(d)(2) in this case we also consider the Respondent's Answer to the Board's Petition as well as the testimony and arguments of counsel offered at a hearing held on April 8, 2013, We also will consider the Amended Petition for Interim Suspension Without Pay filed by the Board during the hearing on April 8, 2013.

II. FINDINGS OF FACT

Findings of Fact are set forth in the Discussion.

III. DISCUSSION

A. ORDERS OF COURT OF JUDICIAL DISCIPLINE.

Because an Indictment has been filed against Respondent charging him with felonies, § 18(d)(2) of Article V of the Constitution authorizes this Court to enter an interim order now—prior to a hearing—suspending him with or without pay.

The constitutional amendments of 1993, establishing this Court of Judicial Discipline, invest this Court with authority to enter two different types of orders.

The first—the type we are most frequently requested to enter—is an order imposing a sanction against a judicial officer. This type of order is authorized by Article V, § 18(b)(5) of the Constitution and is to be entered in cases where the Board has filed formal charges, and only after “a hearing or hearings.” Section 18(b)(5) also specifies certain rights to which judicial officers shall be entitled in such hearings. Orders under § 18(b)(5) are final and appealable.

The second type of order which the Constitution empowers this Court to enter is authorized by Article V, § 18(d)(2). These orders are styled by the Constitution as “interim orders” and are authorized to be entered “prior to a hearing.” These ordersshall not be considered a final order from which an appeal may be taken.

As we did in In re Melvin, 57 A.3d 226, 231–39 (Pa.Ct.Jud.Disc.2012) and in In re Jaffe, 814 A.2d 308, 311–18 (Pa.Ct.Jud.Disc.2003), we hold that the rights set out in § 18(b)(5) as available to judicial officers in proceedings leading to final orders of sanctions are not available in interim proceedings under § 18(d)(2). The fundamental constitutional scheme negates any other conclusion. We also hold that that constitutional scheme in no way offends any overweening notion of due process which may be said to derive from the Constitutions of the United States or of Pennsylvania. See, also, cases cited in the Melvin and Jaffe opinions, esp. Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997).

B. INTERIM SUSPENSION WITH OR WITHOUT PAY?

Having decided that this Court is constitutionally authorized to enter an interim order without a hearing and that, in fact, the Constitution contemplates that we do so where appropriate, and that such a procedure does not withhold or offend any due process rights to which Respondent might be entitled, we must decide whether, in our discretion, an interim order suspending Respondent without pay should be entered in this case.

1. Totality of the Circumstances—Factors to Consider.

In this undertaking, we turn to the rule formulated by this Court in In re Larsen, 655 A.2d 239 (Pa.Ct.Jud.Disc.1994) where we stated:

Rather than a per se rule as proposed by the Board, we are of the opinion that a totality of the circumstances test is more appropriate, with each case being decided on its own facts. Among the factors to be considered are the nature of the crime charged, its relation, or lack thereof to the duties of the responding judicial officer, the impact or possible impact on the administration of justice in this Commonwealth, the harm or possible harm to the public confidence in the judiciary as well as any other circumstances relevant to the conduct in question.

Id. at 247. See, also,In re Smith, 712 A.2d 849, 851–52 (Pa.Ct.Jud.Disc.1998).

Consideration of the annunciated factors leads decisively to the conclusion that the totality of the circumstances in this case calls for the entry of an interim order of suspension with pay—and not for suspension without pay, as requested by the Judicial Conduct Board.

In reaching this decision—in determining the “totality of the circumstances”—we will examine:

—the nature of the crime charged and its relation, or lack thereof to Respondent's judicial duties,

—the impact or possible impact on the administration of justice,

—the harm or possible harm to the public confidence in the judiciary,

—any other circumstances relevant to the conduct in question.

It cannot be gainsaid that the crime charged does relate to the everyday duties of a judicial officer and we believe that, if Respondent were to continue to hear cases while the charges are unresolved, there could be a possible negative impact on the administration of justice and could possibly harm the public confidence in the judiciary. As a consequence, so long as the charges are pending and unresolved, interim suspension is called for.

In coming to grips with the question whether suspension with pay is appropriateand sufficient to allay the possible harm to public confidence in the judicial system and the possible negative impact on the administration of justice in the Commonwealth, in this case we look not only at the nature of the charges, but also at “any other circumstances relevant to the conduct in question.”

(a) Nature of the Charges.

We will start by looking at the nature of the charges. And we will start that exercise with reference to the original Petition for Interim Suspension Without Pay filed by the Board on January 31, 2013. In that Petition the Board made the grossly inaccurate representation that the federal Indictment (which was attached as Exhibit “A” to the Petition) charged this Respondent with one count of conspiracy, 49 counts of wire fraud and 18 counts of mail fraud—a total of 68 crimes (see para. 6 of the original Petition). The fact is that the Indictment charges this Respondent with a total of 3 counts—not 68—one count of conspiracy, one count of wire fraud and one count of mail fraud.²

i. The Conspiracy Count.

Closer review of the Indictment reveals much about the nature of the charges against Judge Bruno as well as the level of his participation in the everyday goings-on at the Philadelphia Traffic Court which the federal prosecutors and media like to call—not without some justification (at least according to the allegations)—a “culture” of corruption.

Any review of the totality of the circumstances in this case must include the realization that this Respondent was not a regular “traffic court judge”—he was not a judge of the Philadelphia Traffic Court. He was a magisterial district judge elected in Chester County. He went to Traffic Court once a year to help out when the Traffic Court judges left town for one week for their annually required continuing legal education given in Chambersburg or Harrisburg, As a matter of fact the Indictment asserts that the regular Traffic Court judges were chary of Judge Bruno and the other magisterial district judges and found it difficult, challenging, risky to get illegal things done during the week Bruno and the other magisterial district judges were in Traffic Court. See, e.g., para. 39–41 at p. 29 of the Indictment. In those paragraphs it is alleged:

39. On or about May 10, 2010 [a Monday], defendant MICHAEL J. SULLIVAN ³ continued the hearing for the two Oasis tickets.

40. On or about May 12, 2010 [a Wednesday], defendant MARK BRUNO adjudicated L.R.'s citations as not guilty.

41. On or about May 18, 2010 [Tuesday of the following week], Fortunato N. Perri, Sr.⁴ and defendant HENRY P. ALFANO discussed the continuance on the Oasis tickets. Perri explained that the district justices were sitting the previous week and all the judges were away and therefor maybe Perri “couldn't get it through, you know what I mean?” Defendant ALFANO responded “I gotcha. I got the picture.” Perri instructed ALFANO to mail Perri any notices.⁵

The obvious import of Perri's conversation with Alfano on May 18, 2010 was to explain to...