In re Deleon

• Decision Date: 27 July 2006
• Docket Number: No. 1 JD 06.,1 JD 06.
• Citation: 902 A.2d 1027
• Parties: In re James M. DeLEON Supervising Judge, Philadelphia Municipal Court Philadelphia County.
• Court: Pennsylvania Court of Judicial Discipline

Page 1027

902 A.2d 1027

In re James M. DeLEON Supervising Judge, Philadelphia Municipal Court Philadelphia County.

No. 1 JD 06.

Court of Judicial Discipline of Pennsylvania.

July 27, 2006.

Before SPRAGUE, P.J., HALESEY, CAPOFERRI, O'TOOLE and MUSMANNO, JJ.

OPINION AND ORDER

OPINION BY Judge SPRAGUE.

We have before us Respondent's Motion to Dismiss based on the Judicial Conduct Board's alleged violation of its Rule 31 (J.C.B.R.P. No. 31). That rule provides:

RULE 31. DISPOSITION OF COMPLAINT.

(A) Except as provided in paragraph (C), within 180 days of the Board's receipt of the Judicial Officer's written response pursuant to Rule 30(B)(2)(c) or written response to any subsequent letter requesting information by the Board, the Board shall:

(1) dismiss the complaint upon a finding that there is no existing probable cause to file formal charges;

(2) dismiss the complaint with the issuance of a letter of counsel upon a determination that, even if the alleged conduct occurred, it was not conduct which requires that formal charges be filed, provided that the Judicial Officer:

(a) consents in writing;

(b) stipulates that the letter of counsel may be used during proceedings involving new complaints against the Judicial Officer; and

(c) agrees to and satisfies any conditions required by the Board; or

(3) authorize the filing of formal charges with the Court of Judicial Discipline.

(B) If the Board dismisses a complaint following a full investigation, Chief Counsel shall promptly notify the Judicial Officer and the complainant.

(C) Exceptions.

(1) The Board may continue a full investigation of a matter beyond the 180-day period set forth in paragraph (A) upon a good faith belief that further investigation is necessary.

(2) The Board may defer disposition of a complaint pursuant to paragraph (A) upon discovery or receipt of additional, corollary, or cognate allegations which may necessitate an investigation.

(3) The receipt of the Judicial Officer's written response to any Rule 30(B) notice or supplemental or investigatory letter is a necessary prerequisite to the tolling and calculation of the 180-day period set forth in paragraph (A). Thus, the 180-day time period is wholly inapplicable if the Judicial Officer fails to file a written response and the investigation will continue to conclusion.

The Board's rule-making power derives directly from the Constitution:

The Board shall ... establish and promulgate its own rules of procedure.

Pa. Const., Art. V, § 18(a)(6). It is pursuant to this constitutional authority that the Board established and promulgated its Rule 31.

In similar fashion this Court receives its rule-making power from the Constitution:

The court shall adopt rules to govern the conduct of proceedings before the court.

Pa. Const., Art. V, § 18(b)(4). It is pursuant to this constitutional authority that this Court adopted Rule 411(D)(3). That rule provides:

(D) The Judicial Officer may challenge the validity of the charges on any legal ground including:

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(3) that the Board violated the proceedings governing it.

C.J.D.R.P. No. 411(D)(3).

In In re Hasay, 546 Pa. 481, 686 A.2d 809 (1996), the Judicial Conduct Board took the position that this Court did not have constitutional authority or jurisdiction to review the Board's compliance with its own rules of procedure. In that case we held that this Court did have such authority. In re Hasay, No. 2 JD 95, slip op. at 5 (Pa.Ct.Jud.Disc. May 10, 1995). On appeal our Supreme Court met the issue head-on stating:

The board claims that the court does not have the constitutional authority or jurisdiction to review the board's compliance with its own rules of procedure, but may only determine whether there is clear and convincing evidence of ethical misconduct. The board's position on this issue is radical: the board's decisions concerning probable cause to file formal charges with the Court of Judicial Discipline are non-reviewable by that or any other court. The board's brief states:

To the extent that C.J.D.R.P. No. 411(D) provides that "the Judicial Officer may challenge the validity of the charges on any legal ground including ... (3) that the Board violated the procedures governing it," it is clearly unconstitutional since the Court of Judicial Discipline's rule-making authority is limited to adopting rules which govern the conduct of the hearings before it. Furthermore, there is no authority, either in the Constitution or in the Rules of Conduct for District Justices, for the proposition that a violation of the Board's Rules should constitute a defense to formal charges.

The opinion of the Court of Judicial Discipline stated: "Contrary to the Board's position that this Court's only function is to determine whether to impose a sanction, ... part of [that decision] may include, where relevant, an inquiry into the question of whether the Board has followed the rules it has adopted for its own governance." Slip op. at 5, May 10, 1995.¹

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We emphatically reject the assertion that the board's compliance with its rules of procedure is absolutely beyond judicial review. The rules exist in part to insure that due process is accorded judicial officers subject to investigation and prosecution by the board. The constitution states that all hearings before the Court of Judicial Discipline shall be "conducted pursuant to the rules adopted by the court and in accordance with due process." Pa. Const. Art. V, § 18(b)(5).

* * * *

We therefore hold that the rules of the Court of Judicial Discipline properly include reference to the board's compliance with its rules as an issue subject to the review of the court.

The discipline of a judicial officer is a process which begins the moment a complaint is received by the board. The judicial officer is entitled to due process at all stages of the proceeding before the board, the court, and on appeal. A denial of due process by the board may be remedied by the court or on appeal. Every minor or technical violation of the board's rules may not be a denial of due process, and the appropriate remedy may be a minor matter; nonetheless, the guarantee of due process requires that the board's procedures be reviewable. The court's rule of procedure 411(D)(3), allowing an accused judicial officer to challenge the board's procedural integrity, is a valid exercise of the court's rule-making authority, and is perfectly in keeping with the constitutional mandate that the court conduct its hearings "in accordance with the principles of due process."²

Hasay, supra, at 493-95, 686 A.2d at 816-17.

The matter is, thus, solidly settled, and it is upon this authority that we here examine the Board's compliance — or non-compliance — with its Rule 31.

At the outset we note that the Board, with commendable candor, has conceded that, in this case, it did not comply with the rule. (N.T. 14). Notwithstanding, given that the Board's concession is based upon, and limited to, the facts of this case — as will be our decision — it is important that those facts be here set out.

Under Rule 31 the 180 day clock begins to run when the Board receives the judicial officer's written response to the Board's Notice of Investigation. In this case that response was received on June 6, 2003.³ Based upon Stipulations of Fact agreed to by the parties and upon Respondent's exhibit R-3, items 14-72, we find that the Board's investigation proceeded as follows:

— from June 6, 2003 to August 20, 2003 no investigation was conducted;

— from August 20, 2003 to March 2004 numerous witnesses were interviewed and depositions were conducted;

— no investigation was conducted from March 2004 until June 2004 when several witnesses were interviewed;

— except for one interview in August 2004, no investigation was conducted from June 2004 until October 14, 2005 when Respondent's deposition was taken;

— thereafter, no further investigation was conducted and the Board authorized filing of a Complaint in this Court on December 5, 2005.

Since the Board's investigation was not complete at the expiration of 180 days, and since by that time the Board had not done any of the things required of it under Rule 31(A)(1), (2) or (3), i.e., dismiss the complaint, issue a letter of counsel, or authorize the filing of formal charges with this Court, on December 8, 2003, proceeding under Rule 31(C)(1), the Board authorized an extension of the investigation beyond the 180 day limit. Board counsel has filed a Certification that at that time the Board had "a good faith belief that further investigation was necessary." We do not question the factuality of that certification nor do we question the propriety of the extension authorized on December 8, 2003.

However, the Board interprets the "Exceptions" clause of Rule 31(C)(1) to require formal extensions be made every 180 days and that each extension be supported by the aforementioned "good faith belief that further investigation is necessary." Acting accordingly, the Board authorized additional extensions of 180 days on May 3, 2004, December 6, 2004 and June 13, 2005. While we may not be constrained to question the existence of "good faith belief" that on those dates "further investigation was necessary," our examination of the Board's compliance with Rule 31 does not end there.

It is a given that the intention of Rule 31 is to require that the Board conduct its investigations with some expedition, that it not dawdle along all the while leaving the judicial officer under investigation to wonder whether he will be facing formal charges or not. It follows that this requirement cannot be met, nor this goal achieved, without the concomitant requirement that the Board proceed with diligence in conducting its investigations. Our review of the Board's compliance with Rule 31 will not be complete, then, without an examination of that question.⁴

From the above timeline we note:

1. that the Board's investigation...