In Re: Angeles Roca, Judge ( 2017 )

[J-49A-2017] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN RE: ANGELES ROCA FIRST : No. 42 EAP 2016
JUDICIAL DISTRICT PHILADELPHIA :
COUNTY : Appeal from the Order dated December
: 16, 2016 of the Court of Judicial
: Discipline at No. 14 JD 2015
APPEAL OF: ANGELES ROCA :
: ARGUED: May 9, 2017
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: November 22, 2017
In this appeal as of right, Philadelphia County Court of Common Pleas Judge
Angeles Roca (“Roca”) challenges the December 16, 2016 Order and Opinion of the
Court of Judicial Discipline (the “CJD”) permanently removing her from judicial office.1
This Court must determine whether the CJD’s removal sanction is “lawful” pursuant to
our constitutionally prescribed standard of review regarding sanctions imposed by the
CJD. See Pa. Const. art. V, § 18(c)(2). Specifically, we must determine whether the
CJD is required to follow the discretion-limiting doctrine of stare decisis when imposing
sanctions. I am of the view that the CJD is bound to do so. In holding to the contrary,
the Majority, without explanation, abrogates a foundational precept of our common law
system of jurisprudence and, in my view, interprets Article V, Section 18 in a way that
the citizens of this Commonwealth never intended. The result is that a court of
1
Roca does not dispute that she violated provisions of the Code of Judicial Conduct,
engaged in conduct that prejudiced the proper administration of justice and brought her
judicial office into disrepute.
appointed judges may, with unbridled discretion, remove an elected jurist from office.
For the reasons that follow, I dissent.
This Court’s standard of review2 regarding sanctions imposed by the CJD is set
forth in Article V, Section 18 of the Pennsylvania Constitution:
2
The Majority accepts as appropriate, without analysis, the use of the term “scope of
review” as a proxy for “standard of review” in Article V, Section 18(c)(2), despite this
Court’s express distinction between scope and standard of review:
“Scope of review” refers to the confines within which an
appellate court must conduct its examination. In other
words, it refers to the matters (or “what”) the appellate court
is permitted to examine. In contrast, “standard of review”
refers to the manner in which (or “how”) that examination is
conducted.
Morrison v. Com., Dep't of Pub. Welfare, Office of Mental Health (Woodville State
Hosp.), 646 A.2d 565, 570 (Pa. 1994) (first and last emphasis added) (internal citations
omitted). At the very least it must be acknowledged that Article V, Section 18(c)(2) was
poorly drafted. It is our goal to discern the intent of the adopters of the Constitutional
amendment and our rules of constitutional interpretation require us to give words their
ordinary meaning and to give effect to all constitutional provisions. See Jubelirer v.
Rendell, 953 A.2d 514, 528 (Pa. 2008). A technical legal term in the Constitution,
however, must be given the meaning understood by those sophisticated in the law at
the time of enactment. See Robinson Twp., Washington Cty. v. Com., 83 A.3d 901, 956
(Pa. 2013); cf. 1 Pa.C.S. § 1903(a) (technical words that have acquired a peculiar and
appropriate meaning must be interpreted according to that meaning).
As to sanctions, it is clear that “scope of review,” as that phrase is used in Article V,
Section 18(c)(2), cannot be assigned its peculiar and appropriate meaning. It must
have been intended to mean “standard of review,” since the constitutional provision is
concerned with the question of “how” this Court’s review is conducted. Although this
Court has recognized that “scope of review” and “standard of review” were “often –
albeit erroneously – used interchangeably,” we have also made it clear that any
confusion regarding the terms was unfounded because, plainly, “the two terms carry
distinct meanings and should not be substituted for one another.” Morrison, 646 A.2d at
570. Accordingly, throughout this opinion, when discussing the manner in which this
Court reviews sanctions, I use the term “standard of review.” Regarding our scope of
review as to sanctions, I agree with the Majority that Article V, Section 18(b)(5) requires
us to review the entire record. See Majority Op. at 21.
[J-49A-2017] [MO: Saylor, C.J.] - 2
On appeal, the Supreme Court … shall review the record of
the proceedings of the [CJD] as follows: on the law, the
scope of review is plenary; on the facts, the scope of review
is clearly erroneous; and as to sanctions, the scope of
review is whether the sanctions imposed were lawful. The
Supreme Court … may revise or reject an order of the [CJD]
upon a determination that the order did not sustain this
standard of review; otherwise, the Supreme Court … shall
affirm the order of the [CJD].
Pa. Const. art. V, § 18(c)(2). The Majority holds that we are bound only to determine
whether a sanction is “lawful” and that our standard of review in this regard is
perfunctory, as it only allows this Court to confirm that the sanction imposed by the CJD
was “available.” See Majority Op. at 17, 21. In reaching this conclusion, the Majority
indicates that “available” sanctions are those sanctions that the CJD may impose or, to
be more specific, those sanctions listed in Article V, Section 18 – namely, “removal from
office, suspension, censure or other discipline … .” Pa. Const. art. V, § 18(b)(5). That
sanctions must also be “warranted by the record” is, according to the Majority, the only
limitation on the concept that a “lawful” sanction must merely fall “into a category which
is theoretically ‘available’ to the CJD.” Majority Op. at 21. I challenge the Majority’s
interpretation of our standard of review on several grounds.
First, contrary to the Majority, I believe we must engage in meaningful
constitutional interpretation regarding our intended standard of review. In interpreting
constitutional language, “the fundamental rule of construction which guides [this Court]
is that the Constitution's language controls and must be interpreted in its popular sense,
as understood by the people when they voted on its adoption.” Ieropoli v. AC & S
Corp., 842 A.2d 919, 925 (Pa. 2004). Nothing in the text of Article V, Section 18
requires us to interpret the word “lawful” as synonymous with “available.” To the
[J-49A-2017] [MO: Saylor, C.J.] - 3
contrary, defining “lawful” to mean “available” strips the term of its plain and ordinary
meaning. Indeed, this Court creates the definition out of whole cloth. If the adopters
intended the Majority’s outcome, Article V, Section 18(c)(2) would have used the term
“available” and not “lawful.” In my view, what is “lawful” is, plainly, that which is allowed
by the law. In this regard, our Constitution designates the CJD as an Article V “court of
record, with all the attendant duties and powers appropriate to its function.” Pa. Const.
art. V, § 18(b)(5). As developed later in this Dissenting Opinion, in a common law legal
system such as ours, absent other discretion-limiting mechanisms, a court of record is
bound by stare decisis. Decisions not tethered to that principle are ipso facto not lawful.
Although this Court has previously equated “lawful” with “available,” we have
never explained our rationale for excluding any other basis for finding a sanction
unlawful. See, e.g., In re Merlo, 58 A.3d 1, 15 (Pa. 2012) (observing that Article V,
Section 18 “sets forth removal as an available sanction for bringing disrepute upon the
judicial office”); In re Berkhimer, 930 A.2d 1255, 1260 (Pa. 2007) (indicating that
removal was a lawful sanction because the Constitution “sets forth removal as an
available sanction for bringing disrepute upon the judicial office”). The Majority offers no
further insight into the basis for this constitutional interpretation. As a result, this Court’s
“interpretation” of our standard of review of sanctions imposed by the CJD is
unsupported by important language in the provisions of our Constitution and reasoned
analysis.3
3
Ironically, while disavowing the importance of precedent as to the CJD’s decision-
making process, the Majority follows the precedent of this Court to conclude that “lawful”
does not encompass stare decisis, a most basic precept of the common law.
[J-49A-2017] [MO: Saylor, C.J.] - 4
Moreover, according to the Majority’s interpretation, our standard of review
amounts to nothing more than a cross-reference to confirm that the sanction imposed is
one mentioned in Article V, Section 18(b)(5). Therefore, it follows that if the CJD
imposes a sanction of “removal from office, suspension, [or] censure,”4 jurists in this
Commonwealth effectively have no right of judicial appeal, even though our Constitution
guarantees them this right. See Pa. Const. art. V, § 18(c)(1) (providing that “a justice,
judge or justice of the peace shall have the right to appeal a final adverse order of
discipline of the [CJD]”); see also id., § 9 (setting forth “a right of appeal from a court of
record … to a court of record or to an appellate court”). Remarkably, the Majority
eviscerates, without an analytical or textual basis, the vertical nature of judicial review,
since under the Majority’s construct, this Court, the highest court in Pennsylvania, has
no ability to meaningfully review a decision of an inferior tribunal, the CJD, despite a
constitutional grant of appeal thereto. All of this is accomplished by the Majority without
any attempt to discern the intent of the voters who adopted the constitutional
amendment being interpreted.
It is clear that the primary reason for the amendment, especially in the eyes of
the voters, was to separate the investigatory and adjudicatory functions within the
4
As stated, Article V, Section 18 also permits the CJD to impose “other discipline as
authorized by this section … .,” Pa. Const. art. V., § 18(b)(5), a phrase not directly
implicated here since Roca was removed from office. However, in In re Melograne, 812
A.2d 1164 (Pa. 2002), a jurist challenged, inter alia, the CJD’s authority to disbar him
from the practice of law. Without specific reference to our standard of review of
sanctions, we determined that the CJD did not have such authority, because Article V,
Section 10(c) of the Pennsylvania Constitution confers exclusive authority upon this
Court to discipline attorneys. Id. at 1169. Accordingly, Melograne makes clear that the
CJD’s authority is inherently constrained by jurisprudential considerations beyond the
confines of Article V, Section 18.
[J-49A-2017] [MO: Saylor, C.J.] - 5
disciplinary system, not to insulate this Court entirely from the process of judicial
discipline. In fact, the plain language text of the proposed amendment provided to the
voters in May 1993 included nothing about this Court’s standard of review of sanctions
and nothing to suggest that this Court should be shielded from intervention in the
judicial disciplinary system generally. See Pittsburgh Post-Gazette, Ballot Questions,
1993 WLNR 2119966 (May 16, 1993).5
What is also clear is that Article V, Section 18 grew out of the work and
recommendations of the Governor’s Judicial Reform Commission, commonly known as
the Beck Commission after its chairperson, the Honorable Phyllis Beck. See
Pennsylvania Court of Judicial Discipline, A Brief History of the Formation of the Court
of Judicial Discipline 1993-1994, at 2.6 Governor Robert Casey established the twenty-
three member Beck Commission by executive order on July 16, 1987, calling for an
extensive re-examination of the judicial system. Id. The resulting “Beck Report” made
recommendations regarding judicial reform in Pennsylvania. See id. (explaining that the
Beck Commission recommended that the functions of the judicial inquiry and review
5
The referendum question on judicial discipline read as follows:
Shall Article V of the Pennsylvania Constitution be amended
to establish a Judicial Conduct Board to investigate
complaints of judicial misconduct, to establish a Court of
Judicial Discipline to adjudicate charges of judicial
misconduct, to abolish the Judicial Inquiry and Review
Board, and, except as provided by law, to bar payment of
compensation, including retirement benefits, to justices,
judges, and justices of the peace suspended, removed, or
barred from judicial office for serious misconduct?
Pittsburgh Post-Gazette, Ballot Questions, 1993 WLNR 2119966 (May 16, 1993).
6
This publication is available upon request from the Court of Judicial Discipline.
[J-49A-2017] [MO: Saylor, C.J.] - 6
board be divided between two autonomous bodies); see also Report of the Governor’s
Judicial Reform Commission (January 1988) (recommending the bifurcation of
investigatory and adjudicatory processes in judicial discipline, recommending that
judges and district justices have a right to appeal a decision of the adjudicatory tribunal
to the Supreme Court and indicating that justices of the Supreme Court should not be
permitted to judge other justices of the Supreme Court). While it would be fair to assert
that the Beck Report, and the constitutional amendment that ultimately evolved
therefrom, indicate a desire to insulate Supreme Court justices from discipline by the
Supreme Court, nothing can be gleaned from this to support either the Majority’s or
Justice Todd’s definition of “lawful.”
We granted oral argument to consider the CJD’s obligation to adhere to the
doctrine of stare decisis in imposing a sanction in order for the sanction to be “lawful.”
In light of the Majority’s disposition of this case – which, in my view, bestows upon the
CJD powers that the people of this Commonwealth never intended for it to have – I
begin my discussion by anchoring the doctrine of stare decisis within the broader
framework of our legal system. Most nomocratic nations, i.e., nations that adhere to the
rule of law, follow one of two major legal traditions that act to cabin the discretion of
judges: the civil law system or the common law system.7 In a civil law system, which
7
A failed alternative, the Court of Star Chamber – a supplement to the common law
courts in England during medieval times – was born of the king’s sovereign power and
privileges, was not bound by the common law and lacked the safeguards that common
law procedures typically provided. As a result, it became infamous for its “bizarre and
excessive sentences” and was ultimately abolished by an act of Parliament in 1641.
Edward P. Cheyney, The Court of Star Chamber, 18 Am. Hist. Rev., 729, 742-44
(1913). In the Star Chamber, “every conviction … involved imprisonment for a longer or
shorter period according to the will of the court or the pleasure of the sovereign.” Id. at
(…continued)
[J-49A-2017] [MO: Saylor, C.J.] - 7
predominates throughout Western Europe, South America, Asia and Africa, judges are
expected to refer to large bodies of codified rules when making decisions on a case.
Civil law judges do not create law and their judicial decisions are not considered a
source of law for future cases. Prior decisions made by one civil law court are not
binding on a subsequent court. Instead, judicial discretion is narrowly circumscribed by
statute. See Sabrina DeFabritiis, Lost in Translation: Oral Advocacy in a Land Without
Binding Precedent, 35 Suffolk Transnat'l L. Rev. 301, 312 (2012).
The courts of Pennsylvania, however, like courts in forty-nine8 of the United
States (and elsewhere, including Great Britain, Australia and Canada), are progeny of a
common law legal tradition, born in England in the eleventh century. The common law
system is characterized by adherence by judges to a body of law established through
precedent. Precedent, generally speaking, refers to a prior decision or a consistent
group of prior decisions that represents a model to be followed in subsequent decisions.
See id. at 304, 328 (explaining that the “fundamental preference” of the common law
(continued…)
743. When fines were imposed as punishment, “the amount of money … was
graduated rather according to the need of impressing the community than in proportion
either to the immediate offense or to the ability of the culprit to pay it.” Id. at 744.
8
Within the United States, only Louisiana maintains a hybrid legal system with
elements of both civil and common law traditions. See, generally, Mary Garvey Algero,
The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of
A Civil Law State in A Common Law Nation, 65 La. L. Rev. 775, 792 (2005); see also In
re Orso, 283 F.3d 686, 695 (5th Cir. 2002) (recognizing that Louisiana stands alone
among the fifty states in treating court decisions as secondary sources of law without
stare decisis precedential effect).
[J-49A-2017] [MO: Saylor, C.J.] - 8
involves judges applying “the decisions of their predecessors, adapting these to novel
cases through reasoning by analogy”).9
Adherence to stare decisis is a hallmark of our common law system. Estate of
Grossman, 406 A.2d 726, 731 (Pa. 1979) (discussing stare decisis as “the essence of
common law courts today as in earlier times”). The doctrine “declares that, for the sake
of certainty a conclusion reached in one case should be applied to those which follow, if
the facts are substantially the same.” Commonwealth v. Mitchell, 902 A.2d 430, 473
(Pa. 2006) (citing Burtt's Estate, 44 A.2d 670, 677 (Pa. 1945)); see also Buckwalter v.
Borough of Phoenixville, 985 A.2d 728, 730 (Pa. 2009) (stating that “Pennsylvania
follows the doctrine of stare decisis, which promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process”) (internal
quotations omitted).
Pursuant to the doctrine, precedential decisions of this Court are binding
throughout the Commonwealth, “and the precedential decisions of the lower courts bind
those courts as well.” Ario v. Reliance Ins. Co., 980 A.2d 588, 599 (2009) (Castille, J.,
concurring); see also Yudacufski v. Com., Dep't of Transp., 454 A.2d 923, 926–27 (Pa.
1982) (holding that the trial court abused its discretion in failing to follow the established
precedent set forth in another court of common pleas decision, since “[i]t is well-settled
that, absent the most compelling circumstances, a judge should follow the decision of a
9
Of course, judges in a common law system are often constrained in their decision-
making by statutes as well. In many areas of law, the General Assembly’s enactments
provide an additional discretion-limiting layer. As discussed infra, the criminal
sentencing context is one such area.
[J-49A-2017] [MO: Saylor, C.J.] - 9
colleague on the same court when based on the same set of facts”); Commonwealth v.
Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (acknowledging that a three-judge panel of
the Superior Court “is not empowered to overrule another panel of the Superior Court”
where the facts of the two cases are indistinguishable); State Farm Mutual Automobile
Insurance Company v. Department of Insurance, 720 A.2d 1071, 1073 (Pa. Commw.
1998) (recognizing that stare decisis binds the Commonwealth Court to follow its own
decisions “until they are either overruled or compelling reasons persuade us
otherwise”), aff'd, 747 A.2d 355 (Pa. 2000).
Stare decisis, however, is not “an iron mold into which every utterance by a
Court, regardless of circumstances, parties, economic barometer and sociological
climate, must be poured, and, where, like wet concrete, it must acquire an unyielding
rigidity which nothing later can change.” Ayala v. Philadelphia Bd. of Pub. Ed., 305 A.2d
877, 887–88 (Pa. 1973), superseded by statute on other grounds, Tort Claims Act, 42
Pa.C.S. §§ 8541-8542. Rather, the doctrine demands “thorough examination and deep
thought” with respect to prior judicial decisions. Id. (quoting former Chief Justice Von
Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L. Rev. 409, 414 (1924)).
Thus, a court bound by stare decisis may determine that prior decisions should not be
followed as controlling precedent, but it may not do so without first paying proper
deference to those decisions. Id. If a court decides to depart from its precedent, it
should provide its reasons for doing so.10 Id.10
A judge may intentionally object to established case law in an effort to engage in a
re-evaluation of precedent, perhaps because the precedent has become irrelevant or
antiquated in the contemporary climate. According to the Majority, however, the CJD is
apparently empowered to reject established case law in every matter it decides, and the
(…continued)
[J-49A-2017] [MO: Saylor, C.J.] - 10
While the CJD was established to play a unique role within our common law
judicial system, it is indisputably situated within that system. It was created within
Article V, The Judiciary, of the Pennsylvania Constitution. Pursuant to Article V, jurists
(other than Supreme Court justices) are guaranteed an appeal to this Court, the highest
court in the judicial branch of government. See Majority Op. at 11 (citing Pa. Const. art.
V, § 18(c)(1)). If, as the Majority suggests, the citizens of Pennsylvania had intended to
create a court whose decisions need not defer to precedent – a court unlike any other in
our Unified Judicial System11 and shunning centuries of our common law tradition – they
would have had to expressly indicate their desire to do so. Yet nothing in Article V,
Section 18, expressly or otherwise, remotely suggests that the people of this
Commonwealth sought to create a court of unelected judges unconstrained by any
check on its discretion to remove elected judges from office. Given its place within our
common law system, the CJD is inherently bound to consider stare decisis to at least
the same degree as is every other Article V court. Accordingly, the CJD must follow its
(continued…)
CJD need not even explain how the circumstances have changed from one time period
to another. The CJD has now existed for twenty-four years -- a little more than two
decades -- not centuries. To the extent the CJD may legitimately rely on a changing
contemporary climate, it should be capable of explaining the change without much
difficulty.
11
There is no question that the CJD’s placement in Article V of our Constitution
indicates its establishment as a court like all others “within the Unified Judicial System
over which this Court presides.” See In re Bruno, 101 A.3d at 696 (Saylor, C.J.,
concurring). Our Constitution could have been amended in a different fashion to
establish the CJD. Judges on the CJD are appointed in equal number by the Supreme
Court and the Governor. See Pa. Const. art. V, § 18(b)(1). Had the CJD been
envisioned as separate and apart from our judicial system and its common law tradition,
unconstrained by the inherent discretion-limiting doctrine of stare decisis, Article IV of
our Constitution, which pertains to the Executive branch, could have been amended to
accommodate this new body.
[J-49A-2017] [MO: Saylor, C.J.] - 11
own precedent in fashioning and imposing sanctions, and we must review the sanctions
it imposes in the same light. In my view, this Court’s proper, constitutional standard of
review empowers us to vacate a CJD sanction as not “lawful” if, in imposing it, the CJD
failed to adhere to stare decisis. In short, lawfulness requires the CJD to engage in a
thorough examination of its prior cases. See Pa. Const. art. V, § 18(c)(2). Stare decisis
does not require rigid application of prior cases and outcomes, but it does require the
announcement of the rationale for diverging from them.
The Majority attempts to diminish the importance of stare decisis in the CJD
sanctioning context by reference to our criminal sentencing regime where, the Majority
suggests, judges have broad discretion to impose individualized punishment. See
Majority Op. at 23-24 (suggesting that the Eighth Amendment to the United States
Constitution is the only limitation on such broad discretion). The Majority’s line of
reasoning obfuscates an important distinction between criminal sentencing and CJD
sanctioning. In the context of criminal sentencing, a sentencing judge’s discretion is
significantly constrained in a variety of ways, and the Eighth Amendment is by no
means the only safeguard against judges handing down capricious punishments.
Notably, the sentence a judge may impose in a criminal case is expressly circumscribed
by statute. For each class of crime, the Sentencing Code sets forth a maximum term of
imprisonment or, in the case of financial penalties, the maximum dollar amount a
defendant may be fined. The court is not permitted to impose a sentence or fine that
exceeds this statutory maximum under any circumstances. See, e.g., Commonwealth
v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003) (explaining that sentences exceeding
statutory maximum are illegal). In addition to the statutory maximums, judges imposing
[J-49A-2017] [MO: Saylor, C.J.] - 12
criminal sentences must also consider the general standards set forth in the Sentencing
Code. See 42 Pa.C.S. § 9721(b). Specifically, the sentencing court is required to
fashion a sentence that is “consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” Id.
Moreover, pursuant to the Sentencing Code, a judge must consider the
sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing. In
Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), we explained that “consultation of
the guidelines will assist in avoiding excessive sentences and further the goal of the
guidelines, viz, increased uniformity, certainty, and fairness in sentencing.” Id. at 964.
The guidelines “bring greater rationality and consistency to sentences,” “eliminate
unwarranted disparity in sentencing," and “serve the laudatory role of aiding and
enhancing the judicial exercise of judgment regarding case-specific sentencing.” Id. at
962, 964. Thus, while the sentencing guidelines are advisory in nature, they “must be
respected and considered.” Id. at 965. When a sentencing court imposes a sentence
outside of the recommended guidelines range, it must set forth its reasons for the
deviation in a written statement. Id. at 962-63. A sentencing court’s failure to justify its
departure from the guidelines is grounds for resentencing. Id.
None of the foregoing statutory limitations exist with respect to CJD sanctions. In
my view, this fact renders adherence to stare decisis by the CJD imperative because,
as demonstrated by the instant matter, no other mechanism exists to curb that court’s
discretion in sanctioning in any way. Stare decisis alone stands between the CJD’s
[J-49A-2017] [MO: Saylor, C.J.] - 13
intended status as a fair and rationale Article V court of record, on the one hand, and a
tribunal in the ilk of a discredited star chamber, on the other. See supra, n.7.
Contrary to the Majority’s implication, Roca is not asking this Court to adopt a
strict requirement of proportionality in sanctioning. See Majority. Op. at 16-17. Instead,
her complaint is that the CJD’s published opinion is largely devoid of any analysis of
prior cases in which sanctions were imposed and makes no effort to explain its
deviation from prior case law or otherwise support the sanction imposed. 12 Specifically,
as observed at oral argument, the CJD ordered Roca’s permanent removal from the
bench without a studied review of twenty-three years’ worth of CJD decisions. Roca
argues that “there is a need for uniformity in judicial discipline,” and that the discipline
imposed cannot depend merely on “who is now serving the four year term on the CJD.”
Roca’s Brief at 59, 79. According to Roca, the fact that the term for a judge on the CJD
is four years and a judge cannot be reappointed for at least another year heightens the
“importance of prior precedent,” as “there cannot be a radical change in discipline”
every time there is a new court. Id. at 60. To prevent this result, precedent must be
reviewed and, when appropriate, followed.
12
The CJD apparently believes it is bound to follow some of its precedent since it
considered the ten factors for the imposition of sanctions it announced in In re
Toczydlowski, 853 A.2d 24 (Pa. Ct. Jud. Disc. 2004). See In re Roca, 151 A.3d 739,
741-43 (Pa. Ct. Jud. Disc. 2016). In the instant matter, however, it gave no apparent
weight to the factors that weighed in Roca’s favor. Moreover, the non-exclusive factors
set forth in Toczydlowski are derived from a Washington Supreme Court case, In re
Deming, 736 P.2d 639 (Wash. 1987), wherein that court makes clear that it has de novo
review over sanctions recommended by the judicial qualifications commission. De novo
review by the Washington Supreme Court entails a hearing after which the highest
appellate court of the state makes its own determination of the law and facts. Id. at 642.
[J-49A-2017] [MO: Saylor, C.J.] - 14
Roca directs this Court’s attention to numerous prior CJD cases imposing
sanctions less severe than permanent removal from the bench, while credibly
characterizing the misconduct in those cases as either more extreme or analogous to
the circumstances in this case. See id. at 63-79.13 Roca contends that her conduct is
no more culpable, and in some respects less culpable, than that of the judges in these
cases, and that, conversely, her sanction of permanent removal from office is far more
severe than the sanctions imposed in any of these cases. Id. To the extent Roca’s
comparisons may be viewed as overly broad, it bears noting that at least three of the
cases Roca cites involve a jurist who improperly rendered assistance (to himself, herself
or another) in a judicial matter. See, e.g., In re Dwight Shaner, 142 A.3d 1051 (Pa. Ct.
Jud. Disc. 2016) (senior magisterial district judge’s dismissal of a complaint against a
nephew of a former assistant district attorney resulted in sanction of reprimand and
13
See, e.g., In re Singletary, 967 A.2d 1094 (Pa. Ct. Jud. Disc. 2009) (magisterial
district court judge’s statement that motorcycle gang contributors would benefit if he was
judge resulted in private reprimand); In re Willis Berry, 979 A.2d 991 (Pa. Ct. Jud. Disc.
2009) (common pleas court judge’s use of his judicial office and secretary to run his
private real estate business resulted in four month suspension); In re Hamilton, 932
A.2d 1030 (Pa. Ct. Jud. Disc. 2007) (drunken magisterial district court judge who
physically assaulted the police chief at a public golf outing suspended for nine months
with one year of probation); In re Wade Brown, 907 A.2d 684 (Pa. Ct. Jud. Disc. 2006)
(private reprimand for magisterial district court judge who made improper sexual
comments to his staff and litigants over lengthy time period); In re McCarthy, 828 A.2d
25 (Pa. Ct. Jud. Disc. 2003) (magisterial district judge’s consumption of alcohol when he
was supposed to be performing his judicial duties resulted in six-month suspension); In
re DeLeon, 967 A.2d 460 (Pa. Ct. Jud. Disc. 2009) (municipal court judge’s use of his
office to benefit a friend resulted in three-month suspension); In re Smith, 687 A.2d
1229 (Pa. Ct. Jud. Disc. 1996) (private reprimand for common pleas court judge who
neglected to decide sixty-one cases over a three year period); In re Daghir, 657 A.3d
1032 (Pa. Ct. Jud. Disc. 1995) (common pleas court judge’s acceptance of football
tickets from a litigant in divorce matter resulted in seven-day suspension); see also In re
Larsen, 616 A.2d 529 (Pa. 1992) (ex parte communication with common pleas court
judge resulted in private reprimand).
[J-49A-2017] [MO: Saylor, C.J.] - 15
censure, and an order that he henceforth shall not be eligible to accept any
assignments as a senior magisterial district judge); In re Kelly Ballentine, 86 A.3d 958(Pa. Ct. Jud. Disc. 2013) (magisterial district court judge’s dismissal of three of her own
traffic court citations resulted in fifteen month suspension without pay, nineteen months
of probation and a $18,296 fine); In re Arnold, 51 A.3d 931 (Pa. Ct. Jud. Disc. 2012)
(magisterial district judge’s withholding of her son’s citation and failure to be forthright
prejudiced administration of justice and resulted in one month suspension without pay).
Given the similarities to the case at bar, the CJD, in keeping with the discretion-
limiting doctrine of stare decisis, should be expected, at the very least, to consider its
decisions in these three cases when rendering its sanction decision as to Roca. The
facial similarities in the facts of these cases suggest that outcomes should be similar.
Since they are not, the sanctioned jurists, the rest of the judiciary and the public should
know why. Such required analytical reporting by the CJD is the only restraint on its
discretion. Otherwise, if it so chooses, the CJD can punish foes and reward friends with
impunity.
The Majority expresses a degree of sympathy for Roca’s position, but posits that
“it is difficult to draw equivalence among distinct cases of judicial misconduct, as the
factors involved in each instance will naturally vary.” Majority Op. at 18. This statement
is true, but entirely irrelevant to the question of the application of stare decisis. It is
axiomatic that no two cases are perfectly identical, but the other courts of this
Commonwealth, including this Court, do not as a result abandon all efforts to follow
stare decisis. That it may be challenging for the CJD to analyze, analogize or
[J-49A-2017] [MO: Saylor, C.J.] - 16
distinguish one case by reference to prior cases does not relieve that court from its
inherent obligation to do so.14
Having exempted the CJD from the doctrine of stare decisis, the Majority
nevertheless posits that the “warranted-by-the-record prerequisite” of Article V, Section
18(b)(5) provides a safeguard against “an unreasonably harsh penalty completely out of
proportion to the misconduct involved.” Majority Op. at 21. In addition to the patent
inconsistency with the Majority’s holding that sanctions need not be proportional, in my
14
Notably, the Majority cites to cases from our sister state courts for the proposition
that “past judicial misconduct cases … are of limited usefulness,” In re Crawford, 629
N.W.2d 1, 11 (Wis. 2001), and “proportionality review based on discipline imposed in
other cases … is neither required nor determinative,” Broadman v. Comm’n on Judicial
Performance, 959 P.2d 715, 734 (Cal. 1998). See Majority Op. at 19. The cases relied
on by the Majority are inapposite because the systems for judicial discipline in these
states differ in important respects. In Wisconsin, the state Supreme Court imposes
discipline upon judges on a de novo basis, although the recommendation of that state’s
judicial commission panel is entitled to deference. In re Crawford, 629 N.W.2d at 10.
Similarly, the California Supreme Court has the power to increase or decrease a
sanction after independently reviewing a disciplinary matter. The highest court makes
its own findings of fact and decides as a question of law whether a sanction is
warranted. Broadman, 959 P.2d at 734-35 (affirming a sanction of public censure after
explaining that “a level of discipline may be warranted either by the existence of a
pattern of misconduct or by the seriousness of a single incident”).
Moreover, in In re Crawford, the Wisconsin Supreme Court noted that while “each case
is different, and is considered on the basis of its own facts[,] [t]his individualized
approach to discipline … is guided by some general principles.” In re Crawford, 629
N.W.2d at 10. Citing precedent, that Court characterized suspension and removal from
office as “drastic measures, generally reserved for very serious or repeated violations of
the Code. Factors considered in establishing the length of a suspension, either in
aggravation or in mitigation, have included a history of prior judicial misconduct, and the
presence of a remorseful and cooperative attitude.” Id. In significant contrast, the CJD
has not developed any cogent standard against which the misconduct of Pennsylvania
jurists may be evaluated and judged, or any set of authoritative factors on which the
public and Pennsylvania jurists could know and understand that appropriate sanctions
will be imposed.
[J-49A-2017] [MO: Saylor, C.J.] - 17
view, and as evidenced by the instant matter, this is no safeguard at all. Here, the CJD
noted,
It cannot be reasonably disputed that Judge Roca, at first,
only requested advice from former Judge Waters, but then
the conversation clearly fell into an agreement to obtain ex
parte contacts with the judge handling her son’s case.
However, rather than refuse to participate in this scheme,
she fully complied and willfully participated in the scheme.
In re Roca, 151 A.3d 739, 743 (Pa. Ct. Jud. Disc. 2016). Concluding that Roca,
therefore, had acted “in derogation of the judicial canons” and had engaged in “willful
misconduct” – findings that are common in almost every disciplinary case at the
sanctions stage – the CJD ordered Roca’s permanent removal from office.
The record in this case makes clear that Roca did not “fix” or control the outcome
of any case, and that her misconduct was limited to assisting her son in his efforts to
open a default judgment to obtain a hearing on his tax case (in which she had no other
involvement). Id. at 62. The city’s case against him was not dismissed; in fact, he paid
a negotiated tax settlement of $477.00. Majority Op. at 4 (citing Stipulation, ¶¶ 30-39).
Moreover, Roca expressed a deeply felt remorse regarding her involvement in the
process. As Roca urges, numerous individuals testified as to her excellent character,
her “workhorse” ethic, her respect for everyone in the courtroom, and her lack of any
prior allegations or incidents of misconduct. Roca’s Brief at 63-64.
Nonetheless, the Majority concludes, “it was not unreasonable for the CJD to
conclude that Appellant’s removal from the bench was an appropriate sanction in light of
all of the facts of the case.” Majority Op. at 22. Here, three jurists connected by
circumstance – a convicted felon, a repeat case fixer and a one-time violator for the
[J-49A-2017] [MO: Saylor, C.J.] - 18
benefit of her son – were all removed from office.15 I am unable to discern how the
“warranted by the record” prerequisite safeguards against “an unreasonably harsh
penalty completely out of proportion to the misconduct involved.” See id. at 21. As
discussed supra, absent any of the constraints on discretion imposed by stare decisis,
and as evidenced by the circumstances of this case, the CJD is free to determine that
any set of facts that amounts to sanctionable misconduct warrants the most extreme
disciplinary consequence: removal from office of an elected official.
In connection with its “warranted by the record” analysis, the Majority posits that
the United States Constitution requires only “inherent-proportionality” review in
noncapital criminal sentencing decisions, pursuant to the Eighth Amendment’s
prohibition on cruel and unusual punishment, but does not, absent “gross
disproportionality,” require comparison to other sentences. Id. at 23 (citing federal
15
It would appear that Roca’s removal sanction resulted, in large part, from guilt by
association with former Philadelphia Municipal Court Judge Joseph C. Waters
(“Waters”) and former Municipal Court Judge Dawn Segal (“Segal”), who themselves
were involved in a far broader range of judicial misconduct. As noted by the Majority,
Waters resigned from office and pled guilty to federal corruption charges as a result of
an FBI investigation into his misconduct. Separately, the CJD removed Segal from
office. Majority Op. at 1 n.2. In contrast to Roca’s isolated ex parte communication with
Waters regarding her son’s tax case, Segal was found to have “engaged in repeated ex
parte communications with Waters about three cases, Houdini v. Donegal, City of
Philadelphia v. Rexach, and Commonwealth v. Khoury. With regard to the Khoury
case, the record demonstrates that [Segal] made repeated improper ex parte contacts,
and later gave assurances to Waters that she would do his bidding, i.e., that these
communications were used by the Respondent in her deliberations about these cases.”
In re Segal, 151 A.3d 734, 735 (Pa. Ct. Jud. Disc. 2016). Yet, when setting forth Roca’s
sanction, the CJD failed entirely to acknowledge that her misconduct, while culpable,
was different in degree and kind than Segal’s. Instead, the CJD employed identical
language in drawing its disciplinary conclusions regarding both Roca and Segal: “As we
have said in more detail in prior decisions, when it comes to corrupt acts and the
derogation of a fair and just judicial process, a judge must have ‘the willingness to stand
up for what [is] right and buck a corrupt tide.’” See id. at 739; see also In re Roca, 151
A.3d at 743.
[J-49A-2017] [MO: Saylor, C.J.] - 19
cases and one Ohio state court case). Arguing for a similarly limited standard of review
as to CJD sanctions, the Majority characterizes the CJD’s “warranted by the record”
requirement as that tribunal’s equivalent to an Eighth Amendment “inherent
proportionality” requirement, concluding that we may review for gross disproportionality
between the judicial misconduct and the sanction imposed, but need not grapple with
precedent in doing so. Id. at 23 n.15; see also id. at 18 n.13.
The previously discussed distinctions between our statutorily prescribed criminal
sentencing regime and the judicial sanctioning regime set forth in Article V, Section 18
render the Majority’s Eighth Amendment analogy entirely inapposite. As an initial
matter, when evaluating proportionality challenges to noncapital sentences pursuant to
the Eighth Amendment, we employ the three-factor test set forth in Solem v. Helm, 463
U.S. 277, 290-92 (1983) (providing that the court must inquire into the “the gravity of the
offense and the harshness of the penalty”; “the sentences imposed on other criminals in
the same jurisdiction”; and “the sentences imposed for commission of the same crime in
other jurisdictions”). The threshold inquiry asks whether a comparison between “the
crime committed and the sentence imposed leads to an inference of gross
disproportionality.” Ewing v California, 538 U.S. 11, 30 (2003). If no such inference
arises, it is unnecessary to conduct a comparative analysis of sentences imposed on
other criminals or in other jurisdictions. See id.; see also Commonwealth v. Baker, 78
A.3d 1044, 1053 (Pa. 2013) (determining that “we need not reach the second and third
prongs of the test for proportionality review under the Eighth Amendment” where “a
threshold comparison of the gravity of a second conviction of possessing and viewing
[J-49A-2017] [MO: Saylor, C.J.] - 20
child pornography against the imposition of a mandatory sentence of at least 25 years’
imprisonment does not lead to an inference of gross disproportionality”).
As the Third Circuit has aptly observed, the “narrow proportionality” test set forth
in Solem is premised upon a principle of substantial deference “to the broad authority
that legislatures necessarily possess in determining the types and limits of punishments
for crimes.” United States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir. 1986) (quoting
Solem, 463 U.S. at 290). It is this principle that “restrains us from an extended analysis
of proportionality save in rare cases.” Id. (citing Solem, 463 U.S. at 290 n.16); see also
Commonwealth v. Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014) (recognizing, before
conducting a Solem analysis, that “acts passed by the General Assembly are strongly
presumed to be constitutional” and “that the legislature has the exclusive power to
pronounce which acts are crimes, to define crimes, and to fix the punishment for all
crimes”) (internal citations and quotations omitted).
In matters of judicial discipline, however, the CJD is not constrained by any
principle of deference to the legislature because, as discussed supra, no statutes exist
to regulate judicial sanctions. Accordingly, the premise underlying narrow
proportionality review in the Eighth Amendment context is inapplicable as to our review
of CJD sanctions. Stare decisis necessarily fills the gap as a curb to limit unbounded
discretion in imposing sanctions.16
16
Roca has not raised an Eighth Amendment challenge and the Majority, although
adopting the rubric of such a challenge, does not embrace following the three-part test
for gross disproportionality. If it had done so, pursuant to Solem, and absent the ability
to compare legislative determinations as to the gravity of distinct forms of misconduct,
proportionality review of CJD sanctions under the Eighth Amendment would necessarily
require comparison to CJD precedent.
(…continued)
[J-49A-2017] [MO: Saylor, C.J.] - 21
Our treatment of attorney misconduct cases reflects a similar principle. In the
absence of statutory limitations with regard to sanctioning attorneys, this Court employs
stare decisis in every attorney discipline case to determine appropriate levels of
discipline. As we have explained, “[t]he final discipline imposed [on an attorney] is
determined on a case-by-case basis on the totality of facts presented. Nevertheless,
despite the fact-intensive nature of the endeavor, we strive for consistency so that
similar misconduct is not punished in radically different ways.” Office of
Disciplinary Counsel v. Cappuccio, 48 A.3d 1231, 1238 (Pa. 2012) (internal citations
and quotations omitted) (emphasis added).
In Cappuccio, for example, we grappled with whether to impose a sanction of
disbarment (which is “properly reserved for the most egregious matters”) as opposed to
“the next most serious sanction, a five-year suspension.” Id. at 1239. Noting the
significance of attorney Cappuccio’s position as a public official at the time he
committed the misconduct in question, we conducted a lengthy analysis of his case by
(continued…)
The Majority’s commentary regarding comparative proportionality review for Eighth
Amendment purposes in the context of death penalty cases further highlights that
discretion must be cabined. While Eighth Amendment comparative proportionality
review is not constitutionally required, many states introduced it by statute “in an effort
to limit jury discretion and avoid arbitrary and inconsistent results” following the United
States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972)
(determining that previous capital sentencing statutes were unconstitutional because
they vested “unguided sentencing discretion in juries and trial judges”). See Pulley v.
Harris, 465 U.S. 37, 44 (1984). In Pulley, the high Court confirmed that statutes not
requiring comparative proportionality review may nonetheless satisfy the concerns
expressed in Furman if they are “carefully drafted … [to] ensure[] that the sentencing
authority be given adequate information … and standards to guide its use of that
information.” Id. at 46 (quoting Gregg v. Georgia, 428 U.S. 153, 194 (1976)). The
bottom line for Eighth Amendment purposes is that a sentencing authority’s discretion
must be circumscribed in some meaningful way.
[J-49A-2017] [MO: Saylor, C.J.] - 22
reference to our disciplinary decisions in more than five prior cases, comparing and
contrasting the nature of the respondent’s misconduct to the misconduct in those past
matters. See id. at 1239-41. Ultimately, we honed in on our decision in Office of
Disciplinary Counsel v. Christie, 639 A.2d 782 (Pa. 2004), concluding that, despite the
similarities between Cappuccio’s misconduct and the facts in Christie, the former should
be disbarred:
[Attorney Cappuccio] is similarly situated to attorney Christie
in terms of the nature of his misconduct, his lack of
disciplinary history and prior criminal record, his cooperation,
character testimony, expressions of remorse, and efforts at
rehabilitation. However, there are two critical distinctions
supporting disbarment. First, [Cappuccio] did not present
expert testimony meeting the Braun standard, and therefore,
is not entitled to the type of consideration that was given to
attorney Christie; given that Christie received the most
severe sanction short of disbarment, the distinction is
significant. Second, as discussed, [Cappuccio]'s position as
a Chief Deputy District Attorney aggravates the misconduct,
particularly in light of the facts here. At the time [Cappuccio]
was engaging in his ongoing criminal conduct by
endangering the welfare of minors and corrupting the
morals, his public persona was that of a law enforcement
figure in the county, prosecuting members of the public for
similar crimes. In our view, any sanction short of disbarment
in these circumstances threatens the integrity of the legal
system, undermines our very serious duty to protect the
public, and fails to give appropriate weight to [Cappuccio]’s
status as a public official. Accordingly, given these two
distinctions, which indicate that a more severe sanction than
that imposed in Christie is warranted in this case, we
conclude that disbarment is the appropriate sanction.
Id. at 1240–41.
The foregoing is an example of the sort of loyalty to stare decisis I would require
the CJD to demonstrate when determining how to sanction jurists. There is no
constitutional basis for a discrepancy and it makes no sense that attorneys in this
Commonwealth are entitled to the degree of fairness and predictability that flows from
[J-49A-2017] [MO: Saylor, C.J.] - 23
adherence to precedent, while our elected judges are, as the Majority holds, stripped
entirely of that right.
Again, what is “lawful” is that which is allowed by the law and there are myriad
sources of the law. As one example, the Majority’s breathtakingly narrow definition of
our standard of review is patently violative of the United States Constitution. For
example, if an available sanction were challenged as violative of the Equal Protection
clause of the United States Constitution, see U.S. Const. amend. XIV, § 1, or on due
process grounds, see id., we would be obligated to review that challenge despite the
availability of the sanction. See Driscoll v. Corbett, 69 A.3d 197, 209 (Pa. 2013)
(explaining that state constitutions cannot eliminate rights otherwise guaranteed under
the United States Constitution). It is anathema to notions of due process and basic
fairness that this Court’s standard of review would prohibit us from examining the
constitutionality of a CJD decision merely because the sanction imposed falls into a
category listed in subsection 18(b)(5). The Majority apparently agrees with me that it is
beyond obvious that a lawful sanction requires that it comport with the United States
Constitution, see Majority Op. at 17 n.11, but it fails to recognize that the definition of
“lawful” must therefore be considerably broader than the one it embraces here, or that
its definition of “lawful” necessarily precludes the kind of review for constitutionality I
discuss herein.
The Majority’s reliance on the absence of an express constitutional mandate to
follow stare decisis in Article V, Section 18, see id. at 17, is meaningless. As noted, the
CJD’s obligation to adhere to stare decisis is inherent in its designation as an Article V
court of record in Pennsylvania, where all courts of record, including this one, apply
[J-49A-2017] [MO: Saylor, C.J.] - 24
stare decisis as a matter of course. No special language is necessary to understand
that the CJD must follow its own precedent. Notably, there is no express constitutional
mandate for this Court or any other in the unified judicial system to follow stare decisis,
but we do so regularly and without exception. Article V, Section 18 also does not
mandate that the CJD follow the United States Constitution, but the Majority agrees that
it must. See Majority Op. at 17 n.11. Nor does Article V, Section 18 mandate that the
CJD is limited by other provisions of the Pennsylvania Constitution, but we know that it
is. See supra n.4 (discussing In re Melograne, 812 A.2d 1164, 1169 (Pa. 2002)). Like
these concepts, adherence to the doctrine of stare decisis is so fundamental to our
understanding of the function of courts that inclusion is automatic in the creation of a
common law court.
While purporting to uphold “our judicial system … as the symbol of fairness and
justice, and of equal protection dispensed to every citizen,” In re Roca, 151 A.3d at 741,
the CJD’s decision to remove Roca from her elected office, without even a nod to the
substantial body of countervailing precedent, compromises these very values. The
facial lack of consistency in the imposition of sanctions demonstrated by the prior CJD
cases chronicled by Roca in her brief, see supra, pp. 15-16, does grave damage to any
notion that the CJD itself is a symbol of fairness and justice dispensed to every citizen,
as judges too are citizens of this Commonwealth. Absent fidelity to stare decisis, the
CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate
review, this Court has no ability to reverse it. At a minimum, it must be this Court’s
function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision,
the lower court has engaged in a lawful judicial process which by necessity involves the
[J-49A-2017] [MO: Saylor, C.J.] - 25
application of stare decisis. In the instant matter, the CJD removed an elected judicial
official from office. It imposed this sanction without any meaningful discussion of prior
precedent. As such, the sanction imposed in this case is ipso facto unlawful. I would
vacate the order imposing sanctions and remand for an opinion in which the CJD
thoroughly examines its precedent before imposing a sanction in this case (and would
require the same in every case it adjudicates). Accordingly, I dissent.
[J-49A-2017] [MO: Saylor, C.J.] - 26