Office of Disciplinary Counsel v. Jepsen

• Decision Date: 10 January 2002
• Citation: 567 Pa. 459,787 A.2d 420
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Diane R. JEPSEN, Respondent.
• Court: Pennsylvania Supreme Court

787 A.2d 420

567 Pa. 459

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Diane R. JEPSEN, Respondent.

Supreme Court of Pennsylvania.

Argued October 17, 2001.

Decided January 10, 2002.

Harold Ciampoli, Jr., Anthony T. Verwey, Blue Bell, for Office of Disciplinary Counsel, petitioner.

Gregory Doyle Anthony, Lisa Denine McClain, Vincent J. Quinn, Harrisburg, for Judicial Conduct Board, amicus curiae.

Samuel C. Stretton, West Chester, for Diane R. Jepsen, respondent.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, and SAYLOR, JJ.

OPINION

ZAPPALA, Chief Justice:

This disciplinary matter presents the issue of whether our Court has the authority to disbar a district justice for misconduct in the practice of law. We hold that we possess such authority pursuant to Article V, Section 10(c) of the Pennsylvania Constitution, which grants our Court the exclusive power to supervise the conduct of attorneys. The fact that the Court of Judicial Discipline is also authorized to discipline judicial officers pursuant to Article V, Section 18 of our Constitution in no way abrogates the constitutionally conferred powers of this Court in disciplinary cases.

Respondent Diane Jepsen is a district justice in Allentown, Pennsylvania, and also engages in the private practice of law. In March of 1999, the Office of Disciplinary Counsel (ODC) notified her that there were several complaints filed against her. The alleged misconduct involved Respondent's obligations as a practicing attorney and was unrelated to her judicial office. On one matter, the Hearing Committee recommended that she be suspended from the practice of law for 2 years. On August 17, 2000, the ODC filed a second petition for discipline, alleging that Respondent failed to appear for a scheduled informal admonition relating to misconduct in a case involving a different private client.

On October 5, 2000, Respondent filed a Verified Statement of Resignation, which complied with Pennsylvania Rule of Disciplinary Enforcement 215.¹ As disclosed in Exhibit B to Respondent's Brief, Respondent's resignation noted that she was fully aware that the resignation statement was irrevocable and that she can apply for reinstatement to the practice of law only pursuant to the provisions of Rule 218, Pa.R.D.E. On November 17, 2000, our Court accepted Respondent's resignation and entered an order disbarring her by consent. The Judicial Conduct Board subsequently filed in our Court an application to implement automatic forfeiture of Respondent's judicial office pursuant to Article V, Section 18(d)(3) of the Pennsylvania Constitution, which provides that:

a 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) (emphasis added). Our Court ultimately stayed this proceeding.

On or about January 26, 2001, Respondent, now represented by counsel, filed a Petition to Vacate Disbarment and requested oral argument. In her petition, Respondent contended that her resignation was made unknowingly due to the fact that she was suffering from severe depression and was unrepresented by counsel at the time. She further asserted that the underlying misconduct did not warrant disbarment. In a supplemental petition, Respondent contended that our Court lacked jurisdiction because the disbarment by consent was commenced by the ODC. She argued that the Court of Judicial Discipline has exclusive authority to seek disciplinary action against judicial officers for misconduct occurring during the judicial service. On March 8, 2001, we granted Respondent's request for oral argument, limited to the issue of whether this Court has jurisdiction to disbar a sitting district justice. Although phrased in terms of jurisdiction, the real issue is whether our Court had the authority to impose the sanction of disbarment under the circumstances of this case.²

Respondent's contention that our Court lacked authority to entertain her statement of resignation is based upon Article V, Section 18 of the Pennsylvania Constitution, which concerns the suspension, removal, discipline and other sanctions of members of the judiciary. This provision was amended in 1993 by the citizens of this Commonwealth. The amendment abolished the Judicial Inquiry Review Board and created the Judicial Conduct Board and the Court of Judicial Discipline. The amendment describes the Court of Judicial Discipline as an independent board within the judicial branch, which is to determine whether sanctions should be imposed upon judicial officers. Subsection (d)(1) of Section 18, upon which Respondent primarily relies, provides in relevant part as follows:

A justice, judge or justice of the peace shall be subject to disciplinary action pursuant to this section as follows:

(1) A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony; violation of section 17 of this article [relating to violations of rules or canons prescribed by the Supreme Court]; misconduct in office; neglect or failure to perform the duties of office or conduct which prejudices the proper administration of justice or brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law; or conduct in violation of a canon or rule prescribed by the Supreme Court....

Pa. Const. art. V, § 18(d)(1).

Respondent contends that because amended Section 18 refers specifically to district justices and encompasses conduct outside the judicial capacity, the Court of Judicial Discipline has exclusive authority over her misconduct. She asserts that the jurisdiction of the Court of Judicial Discipline expressly includes matters involving violations of Section 17 of Article V, relating to violations of "rules or canons prescribed by the Supreme Court." Pa. Const. art. V, § 18(d)(1). Respondent contends that such violations include infractions of the Rules of Professional Conduct, the Code of Judicial Conduct and the Rules for District Justices, under which her misconduct falls. Accordingly, she requests that we vacate the disbarment order and transfer the matter to the Judicial Conduct Board for appropriate action.

In support of her position, Respondent cites pre 1993 amendment cases, which focus on the necessity of an independent tribunal to impose sanctions upon members of the judiciary. See Office of Disciplinary Counsel v. Anonymous Attorney A, 528 Pa. 83, 595 A.2d 42 (1991)

(holding that Judicial Inquiry Review Board, as opposed to the Disciplinary Board, has jurisdiction to discipline judicial officers for misconduct); Office of Disciplinary Counsel v. Surrick, 521 Pa. 264, 555 A.2d 883 (1989) (holding that attorney serving on the Judicial Inquiry Review Board is not subject to the jurisdiction of the Disciplinary Board). Finally, Respondent relies on In re Larsen, 717 A.2d 39 (Pa.Ct. Jud.Disc.1998), where the Court of Judicial Discipline held that it has "exclusive authority to seek disciplinary action, including disbarment from the practice of law, against judicial officers for misconduct occurring during their judicial service." Id. at 46 (emphasis added).

The ODC contends that Article V, Section 18 is not implicated here because Respondent's misconduct occurred during her practice of law. It submits that our Court has exclusive authority to disbar Respondent pursuant to Article V, Section 10(c) of the Pennsylvania Constitution,³ which grants this Court sole supervisory power over the practice of law. See also Pa. R.D.E. 103 (Supreme Court has inherent and exclusive authority over the conduct of attorneys).

Contrary to the arguments in favor of exclusive authority in either the Disciplinary Board or the Court of Judicial Discipline, we hold that both entities possess constitutionally conferred authority to entertain charges filed against a judicial officer who commits misconduct during the practice of law. Each tribunal is likewise capable of determining the appropriate discipline. In either case, this Court is the final arbiter in determining a lawful sanction.⁴ Our holding is based upon the fact that the 1993 amendment to Article V, Section 18 did not divest our Court of our supervisory power over the practice of law. Regardless of the nature of misconduct involved, the determination of whether an attorney is fit to practice law falls within the realm of this Court's authority. The amendment to Section 18, however, also granted to the Court of Judicial Discipline the authority to sanction a judicial officer "whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law." Pa. Const. art. V, § 18(d)(1). It further conferred upon that court the power to order "removal from office, suspension, censure or other discipline as authorized by this section and as warranted by the record." Pa. Const. art. V, § 18(b)(5) (emphasis added).

In concluding that our authority under Article V, Section 10(c) remains inviolate, we rely on cases that have examined the effect the 1993 amendments to Section 18 have had on powers previously exercised by this Court and by the Commonwealth Court. The case of In re: Assignment of Avellino, 547 Pa. 385, 690 A.2d 1138 (1997), involved a petition filed by the president judge of the court of common pleas and the administrative judge of the trial division of that court, alleging that Judge Avellino failed to comply with a judicial assignment. Judge Avellino contended that our Court lacked jurisdiction over the matter.

We rejected this argument, finding that the amendments to Article V, Section 18 had no effect on our general supervisory and administrative authority over all the courts. We stated:

Judge Avellino argues that "The text and context of the 199

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