In re Jaffe
| Decision Date | 15 January 2003 |
| Docket Number | No. 6 JD 02,6 JD 02 |
| Parties | In re: Joseph A. Jaffe, Judge of the Court of Common Pleas; Fifth Judicial District; Allegheny County |
| Court | Pennsylvania Court of Judicial Discipline |
BEFORE:
Honorable Bonnie B. Leadbetter
Honorable Sal Cognetti, Jr.
Honorable Robert P. Horgos
Honorable Michele O'Leary
Honorable Debbie O'Dell Seneca
Honorable James E. Beasley
Honorable Joseph A. Halesey
OPINION BY JUDGE SPOSATO
Before the Court is the Petition of the Judicial Conduct Board for an Interim Order Suspending Respondent, Joseph A. Jaffe, from his judicial office without pay. 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.
Respondent is a duly-elected judge of the Court of Common Pleas of Allegheny County and has held that office since January 1, 1985.
On August 8, 2002 he was granted administrative leave with pay by order of the President Judge of Allegheny County.
On September 17, 2002, Respondent was indicted by a Grand Jury in the United States District Court for the Western District of Pennsylvania. The indictment charges that the Respondent:
1. Solicited money in the performance of his judicial duties
2. Violated the Hobbs Act by extortion (a felony), as that term is defined
in Title 18 of the United States Code, Section 1951(b)(2), in that
Respondent solicited payment of money from a partner in the Goldberg
Persky, Jennings and White, P.L. law firm with a main office at 1030
Fifth Avenue, Pittsburgh, Pennsylvania, which then had a substantial
number of cases pending before the Respondent. While committing the
violation of the Hobbs Act, the Respondent verbally described his
"thought process" to the above mentioned partner as "immoral and
illegal;" however, in spite of this personal assessment of thought, the
Respondent offered "unfettered access" to the partner for "ex parte"
contact
3. The above charge is graded as a felony punishable by a maximum of twenty
(20) years imprisonment
On October 16, 2002 a superseding indictment was issued by the Grand Jury charging that the Respondent:
1. Solicited money in the performance of his judicial duties
2. Violated the Hobbs Act by extortion (a felony) as that term is defined
in Title 18, United States Code, Section 1951(b)(2), in that, Respondent
solicited payment of money not due him or his office from Edwin
Beachler, a partner in the Caroselli, Beachler, McTiernan, and Conboy
law firm, which then had a substantial number of cases pending before
the Respondent
3. Violated the Hobbs Act by extortion (a felony) as that term is defined
in Title 18 of the United States Code, Section 1951(b)(2), in that,
Respondent attempted to obtain property in the form of payment not due
him from a law firm partner, with his consent, induced by the wrongful
use of fear, that is, Respondent did solicit payment of financial
support for his family and also employment for himself after
incarceration, from the aforementioned Edwin Beachler, a partner in the
Caroselli, et al. law firm, in exchange for the Respondent's concealment
of Beachler's role in the extortion payment to Respondent as set forth
in Count 2 of the Superseding Indictment. That charge is graded as a
felony, punishable by a maximum of twenty (20) years imprisonment.
4. The above charge is graded as a felony punishable by a maximum of twenty
(20) years imprisonment.
III. DISCUSSION
Because indictments have 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 "interim orders" and are authorized to be entered "prior to a hearing." These orders are not final and are not appealable.
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.
Section 18(b)(5) of Article V provides:
Upon the filing of formal charges with the court by the board, the court shall promptly schedule a hearing or hearings to determine whether a sanction should be imposed against a justice, judge or justice of the peace pursuant to the provisions of this section. The court shall be a court of record, with all the attendant duties and powers appropriate to its function. Formal charges filed with the court shall be a matter of public record. All hearings conducted by the court shall be public proceedings conducted pursuant to the rules adopted by the court and in accordance with the principles of due process and the law of evidence. Parties appearing before the court shall have a right to discovery pursuant to the rules adopted by the court and shall have the right to subpoena witnesses and to compel the production of documents, books, accounts and other records as relevant. The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence. All decisions of the court shall be in writing and shall contain findings of fact and conclusions of law. A decision of the court may order removal from office, suspension, censure or other discipline as authorized by this section and as warranted by the record.
It is obvious that the provisions of this section, including those specifying various rights to be afforded the subject of the charges, are intended to apply in cases where formal charges have been filed and where the Court is asked "to determine whether a sanction should be imposed." The sanctions imposed under this section are final – not interim. It is not surprising that, in such a context, the drafters of the Constitution would require that principles of due process be observed or that the respondent be presumed innocent or that the burden of proof be clear and convincing evidence.
It is also obvious that this process will take time; and, if a sanction is found to be called for, a separate hearing will be required to determine the appropriate sanction, which will take more time, and if an appeal from a final order of sanction is taken to the Supreme Court, this will take even more time.
We believe that it is obvious that it was the recognition that substantial time would necessarily pass between the time a judicial officer was charged and the time when an order of removal or suspension could be effected, that impelled the drafters to provide for the expeditious entry of "interim orders," and so they did, in §18(d)(2) of Article V. It was only by empowering this Court to suspend "prior to a hearing," i.e., without a hearing, that the integrity of the judicial system could be safeguarded during this interim period. It is noted that the drafters authorized the entry of interim orders only in cases where the Board has already filed formal charges and proceedings under §18(b)(5) are underway, and in cases where a judicial officer has been charged in "an indictment or information [with] a felony." It was in those cases where the drafters perceived the need to provide this Court with the authority for immediate or expeditious suspension in order to avert adverse public perception which may follow if a judicial officer charged with serious offenses continues on the bench or continues on the public payroll.
Courts have debated, and are divided on, the question of whether due process rights are applicable in the judicial disciplinary process. The issue is usually presented as requiring a determination of whether judges have a sufficient property or liberty interest in their offices to invoke the due process clause in disciplinary proceedings, see, e.g., In re Gillard, 271 N.W. 2d 785 (Minn. 1978); In re Nowell, 237 S.E.2d 246 (N. C. 1977); In re Hanson, 532 Pa.2d 303 (Alaska 1975); In re DelRio, 400 Mich. 665, 256 N.W.2d 727 (1977); Gruenburg v. Kavanagh, 413 F.Supp. 1132 (E.D. Mich. 1976), as well as the opinion of this Court in In re Larsen, 655 A.2d 239, 249 (Pa.Ct.Jud.Disc. 1994) where, in support of an interim order of suspension without pay, we noted that "federal courts have held that state judges do not have a federal constitutional right1 to hold...
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