In re Magisterial Dist. Judge Mark A. Bruno
| Decision Date | 01 October 2014 |
| Docket Number | No. 84 MM 2013,J-59A-2013,84 MM 2013 |
| Court | Pennsylvania Supreme Court |
| Parties | IN RE: MAGISTERIAL DISTRICT JUDGE MARK A. BRUNO, MAGISTERIAL DISTRICT 15-1-01 PETITION OF: MARK A. BRUNO |
Petition to Vacate the Order of the Supreme Court dated February 1, 2013
The Opinion of the Court, which I authored, addresses the constitutional issues raised, and is filed in support of the dispositive per curiam order already entered by the Court. I write separately, unconstrained by majority authorship, to explain my own views on additional points not resolved by the Opinion.1
The Court today holds that we have broad authority at King's Bench to effectuate our supervisory function over judicial personnel including, if appropriate, by suspending without pay jurists charged with a felony for conduct on the bench. We explained that the exercise of King's Bench authority is discretionary; the expectation is that the Court of Judicial Discipline (the "CJD") will address all matters subject to that court's Article V, Section 18(d)(2) authority, and that this Court's exercise of discretion will generally be reserved for extraordinary circumstances.
In this case, Judge Bruno's trial and acquittal of federal felony charges (criminal conspiracy, mail fraud, and wire fraud) relating to service on the bench in Philadelphia Traffic Court has diminished the necessity of addressing the propriety of the Court entering its February 1, 2013, Order of suspension without pay in the first instance. The Court was not necessarily of one mind on the question; the arguments of the parties before us, as the Majority Opinion illustrates, illuminated pertinent tensions and considerations; and the event of the acquittal counseled a more modest approach.
For my part, I believe that the Order, when entered in February 2013, was appropriate, and indeed essential. Furthermore, in my view, the Judicial Conduct Board (the "Board") properly recognized that essentiality, and thus was correct to seek an interim suspension without pay. In addition, in my respectful view, the CJD's rationale in restoring Judge Bruno's salary during his suspension from the bench, a decision which obviously (and helpfully) was also intended to open a dialogue with this Court, was unpersuasive. Interim suspension orders issued by the CJD do not afford a direct opportunity for this Court to provide the sort of necessary, supreme guidance that we can in matters arising from a final decision of the CJD. See, e.g., In re Carney, 79 A.3d 490, 509-10 (Pa. 2013) (). Thus, the CJD's decision on interim suspension rejecting the Board's position left the Board without a direct review remedy.2
I write separately, therefore, to embrace the opportunity to engage in the dialogue prompted by the CJD.
There is no serious contest in this matter, as briefed by the parties, that the purpose of vesting in the CJD the authority to suspend, with or without pay, a jurist "against whom formal charges have been filed with the court by the [B]oard or against whom has been filed an indictment or information charging a felony" is to protect the appearance and actuality of fair tribunals in the Commonwealth. An interim suspension, by its nature, is not punitive as a result. Compare PA. CONST. art. V, § 18(d)(1) (listing disciplinary sanctions) with PA. CONST. art. V, § 18(d)(2) (). The concern vindicated by the CJD's authority relating to interim suspensions is the necessity to guard the fairness and probity of the judicial process and the dignity, integrity, and authority of the judicial system, all for the protection of the citizens of this Commonwealth. Accord In re Franciscus, 369 A.2d 1190, 1194 (Pa. 1977); In re Assignment of Avellino, 690 A.2d 1138, 1143 (Pa. 1997) ("Avellino I"). Although premised upon different constitutional authority, the responsibility is akin to that of this Court and the considerations justifying the exercise of legal discretion by the CJD are similarly cabined by its justification. The countervailing considerations implicate due process or fairness concerns. See City of Philadelphia v. International Ass'n of Firefighters, Local 22, 999 A.2d 555, 563 (Pa. 2010) (); accord In re Hasay, 686 A.2d 809, 815 (Pa. 1996) (). Evidence critical to an interim suspension decision, and conditions of pay, is that which addresses these concerns in the context of the two distinct questions implicated: (1) is a suspension suitable and (2) is the withholding of pay warranted, pending resolution of, here, the federal felony charges against Judge Bruno relating to his service on the bench.
Where, as in Judge Bruno's case, the allegations of wrongdoing consist of felony charges related to conduct on the bench, the justification for suspension pending resolution of the felony charges is immediately obvious. Pending charges of any nature can create perverse incentives for a presiding jurist to decide cases in a manner that would curry favor with prosecuting authorities (including when the prosecuting authority is distinct from that appearing before the jurist) or with a potential jury. See In Interest of McFall, 617 A.2d 707, 712-14 (Pa. 1992) (). On the other hand, an accused jurist who believes the charges are baseless could be biased against governmental authorities. A jurist acting unconsciously or overtly upon these incentives undermines those values of justice that all judges are sworn to uphold.3
The appearance of impropriety that would arise from allowing a charged but not yet tried or convicted judge to sit in judgment of others adds a secondary indirect, but no less momentous, burden upon the judicial system by undermining the confidence of the bar and ultimately of the public. See McFall, 617 A.2d at 712 (). These considerations were especially poignant when this Court entered its interim suspension order because Judge Bruno's felony indictment related to allegations that his objectivity as a jurist was compromised, and the allegations occurred in the broader context of systemic judicial corruption in the Philadelphia Traffic Court, on which he was serving by assignment of this Court. To state it bluntly, a jurist who sets about to "fix" a case, or even to interfere ex parte in a case in a way that could influence a decision, has no business on the bench. Improper influences are not limited to bribery or quid pro quo exchanges of favors or consideration. And, this is not esoteric: all judges know what is proper and what is not; and those who stray should expect and accept severe consequences.
Withholding Judge Bruno's judicial salary during his suspension was plainly warranted by the circumstances. Initially, I stress that I do not advocate withholdingsalary automatically whenever a judicial officer faces charges, or even felony charges. Here, Judge Bruno was indicted on one count of mail fraud, one count of wire fraud, and one count of conspiracy to commit wire and mail fraud. See 18 U.S.C. §§ 1341, 1343, 1349. In the abstract, these charges can derive from a variety of conduct. In Judge Bruno's case, however, the indictment was premised upon alleged conduct involving his judicial duties, i.e., allegations that he "elevat[ed] his self-interest over his core judicial obligations." See Joseph v. Scranton Times L.P., 987 A.2d 633, 636 (Pa. 2009). By their oaths and governing conduct rules, judges are put on notice that more is expected of them than of other citizens. The stain of one implicates all, and all judicial officers are, or should be, aware of that fact. When this Court acted, it did so in light of Judge Bruno's alleged conduct on the bench, which was irreconcilable with the judicial oath of office.
Equally as important, the allegations against Judge Bruno could not be viewed in isolation, but only in the context of an investigation into widespread corruption within the Philadelphia Traffic Court, including ex parte adjusting of cases. In the aftermath of the federal investigation, this Court appointed the Honorable Gary S. Glazer of the Philadelphia County Court of Common Pleas to supervise the administration and reform of the Traffic Court, with the goal of improving operations and ensuring restoration of the integrity of adjudications of traffic offenses in Philadelphia. And, the General Assembly has commenced the process of amending the Constitution to abolish Traffic Court. See S.B. 333, 2013-2014 Gen. Assem., Reg. Sess. (2013).
Judge Bruno's necessary suspension pending resolution of the federal charges means that the citizens were not benefitting from the services of the jurist. Cf. Matter of Cunningham, 538...
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