Judges: Colins, Doyle, Friedman, Kelley, Newman, Pellegrini, Smith
Filed Date: 12/15/1994
Status: Precedential
Modified Date: 10/26/2024
dissenting.
I respectfully dissent. I agree that Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), does not apply here, but not for the reasons stated by the Majority. I believe that Lyness does not apply here because Lyness is an impermissible commingling of functions case.
*688 In the instant case, the procedures followed by the Board ... clearly created an unconstitutional intermingling of the prosecutorial and adjudicatory functions in a single entity. Lyness, 529 at 547, 605 A.2d at 1210.
While it is true that a commingling of functions creates an appearance of bias, there may be other circumstances that also create an appearance of bias. “Every procedure which would offer a possible temptation to the average [person] as a judge ... not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.” In Re Schlesinger, 404 Pa. 584, 598, 172 A.2d 835, 841 (1961) (emphasis added); see also Lyness. The possibility of temptation to favor the prosecutor, either consciously or unconsciously, is sufficient to create an appearance of bias. Schlesinger.
In this case, the School Board might be tempted to favor the position advocated by the prosecutor, either consciously or unconsciously, because the prosecutor was also the Solicitor. In the role of Solicitor, the prosecutor advised the School Board on legal matters; thus, the prosecutor, who has gained the confidence and trust of the School Board with respect to legal matters, enjoys an advantage over Harmon by virtue of his enhanced credibility in the eyes of the School Board. It is precisely this advantage that creates an aura of impropriety and taints the proceeding.
Accordingly, I would affirm the decision of the trial court.
. Applying the principles elucidated in Lyness to the facts of that case, our Supreme Court stated:
. Indeed, the Solicitor never performed the role of adjudicator. The Solicitor was present when the School Board decided to terminate Harmon,
. To demonstrate the appearance of impropriety, the trial court relied upon the Rules of Professional Conduct (Rules) and section 2502 of the Judicial Code, 42 Pa.C.S. § 2502. (Appellant’s Brief at 35-36.) See Rule 1.12 and 3.5 of the Rules. The trial court then stated: "this situation certainly gives the appearance of impropriety.” (Appellant’s Brief at 36.)
. Here, the trial court relied upon Lyness and Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). The trial court stated: “Such a procedure [where the Board initiated proceedings and then adjudicated their propriety] would appear, under the holdings of Lyness and Dussia, to be violative of Mr. ‘Harmon’s due process rights.” (Appellant's Brief at 37.)
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