Regular Session 2015-2016 Senate Bill 1083 P.N. 1478

PRIOR PASSAGE - NONE

PRINTER'S NO. 1478

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1083

Session of

2015

INTRODUCED BY SCHWANK, WILLIAMS, YUDICHAK, BLAKE, TARTAGLIONE,

FONTANA, AUMENT, BAKER, HAYWOOD, FARNESE, BOSCOLA, WILEY AND

TEPLITZ, DECEMBER 17, 2015

REFERRED TO JUDICIARY, DECEMBER 17, 2015

A JOINT RESOLUTION

Proposing an amendment to the Constitution of the Commonwealth

of Pennsylvania, in Judiciary, further providing for

suspension, removal, discipline and other sanctions.

The General Assembly of the Commonwealth of Pennsylvania

hereby resolves as follows:

Section 1. The following amendment to the Constitution of

Pennsylvania is proposed in accordance with Article XI:

(1) That section 18 of Article V be amended to read:

§ 18. Suspension, removal, discipline and other sanctions.

(a) There shall be an independent board within the Judicial

Branch, known as the Judicial Conduct Board, the composition,

powers and duties of which shall be as follows:

(1) The board shall be composed of 12 members, as follows:

two judges, other than senior judges, one from the courts of

common pleas and the other from either the Superior Court or the

Commonwealth Court[, one justice of the peace who need not be a

member of the bar of the Supreme Court, three non-judge members

of the bar of the Supreme Court and six non-lawyer electors.]

two non-judge members of the bar of the Supreme Court, one non-

judge member of the bar of the Supreme Court who is a legal

ethics expert serving as faculty at an accredited law school

located in this Commonwealth, and seven non-lawyer members of

the public.

(2) The judge from [either the Superior Court or the

Commonwealth Court, the justice of the peace, one non-judge

member of the bar of the Supreme Court and three non-lawyer

electors shall be appointed to the board by the Supreme Court.

The judge from] the courts of common pleas, the judge from

either the Superior Court or the Commonwealth Court, two non-

judge members of the bar of the Supreme Court, one non-judge

member of the bar of the Supreme Court who is a legal ethics

expert serving as faculty at an accredited law school located in

this Commonwealth and three non-lawyer [electors] members of the

public shall be appointed to the board by the Governor. Four

non-lawyer members of the public shall be appointed to the board

by the General Assembly as follows: one each shall be appointed

by the President pro tempore of the Senate, the Minority Leader

of the Senate, the Speaker of the House of Representatives and

the Minority Leader of the House of Representatives. In making

appointments to the board, each appointing authority shall take

into consideration that the board should include both men and

women who come from racially and ethnically diverse backgrounds

and reflect the geographic diversity of this Commonwealth.

(3) Except for the initial appointees whose terms shall be

provided by the schedule to this article, the members shall

serve for terms of four years. All members must be residents of

this Commonwealth. No more than [three] two of the [six] four

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members appointed by the [Supreme Court] General Assembly may be

registered in the same political party. No more than [three]

four of the [six] eight members appointed by the Governor may be

registered in the same political party. Membership of a judge

[or justice of the peace] shall terminate if the member ceases

to hold the judicial position that qualified the member for the

appointment. Membership shall terminate if a member attains a

position that would have rendered the member ineligible for

appointment at the time of the appointment. A vacancy shall be

filled by the respective appointing authority for the remainder

of the term to which the member was appointed. No member may

serve more than four consecutive years but may be reappointed

after a lapse of one year. The Governor shall convene the board

for its first meeting. At that meeting and annually thereafter,

the members of the board shall elect a chairperson. The board

shall act only with the concurrence of a majority of its

members.

(4) No member of the board, during the member's term, may

hold office in a political party or political organization.

Except for a judicial member, no member of the board, during the

member's term, may hold a compensated public office or public

appointment. All members shall be reimbursed for expenses

necessarily incurred in the discharge of their official duties.

(5) The board shall prescribe general rules governing the

conduct of members. A member may be removed by the board for a

violation of the rules governing the conduct of members.

(6) The board shall appoint a chief counsel and other staff,

prepare and administer its own budget as provided by law,

exercise supervisory and administrative authority over all board

staff and board functions, establish and promulgate its own

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rules of procedure, prepare and disseminate an annual report and

take other actions as are necessary to ensure its efficient

operation. [The budget request of the board shall be made by the

board as a separate item in the request submitted by the Supreme

Court on behalf of the Judicial Branch to the General Assembly.]

The budget request of the board shall be made by the board as a

separate request to the General Assembly from that of the

Supreme Court on behalf of the Judicial Branch. A chief counsel

appointed by the board shall, for an aggregate of at least 10

years preceding the person's appointment as the board's chief

counsel, be a member of the bar of the Supreme Court in good

standing, have not been employed by the Administrative Office of

Pennsylvania Courts, the office of Attorney General or offices

of county district attorneys and have not served as a justice,

judge or justice of the peace of a court or courts of record in

this Commonwealth.

(7) The board shall receive and investigate complaints

regarding judicial conduct filed by individuals or initiated by

the board; issue subpoenas to compel testimony under oath of

witnesses, including the subject of the investigation, and to

compel the production of documents, books, accounts and other

records relevant to the investigation; determine whether there

is probable cause to file formal charges against a justice,

judge or justice of the peace for conduct proscribed by this

section; and present the case in support of the charges before

the Court of Judicial Discipline.

(8) Complaints filed with the board or initiated by the

board shall not be public information. Statements, testimony,

documents, records or other information or evidence acquired by

the board in the conduct of an investigation shall not be public

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information. A justice, judge or justice of the peace who is the

subject of a complaint filed with the board or initiated by the

board or of an investigation conducted by the board shall be

apprised of the nature and content of the complaint and afforded

an opportunity to respond fully to the complaint prior to any

probable cause determination by the board. All proceedings of

the board shall be confidential except when the subject of the

investigation waives confidentiality. If, independent of any

action by the board, the fact that an investigation by the board

is in progress becomes a matter of public record, the board may,

at the direction of the subject of the investigation, issue a

statement to confirm that the investigation is in progress, to

clarify the procedural aspects of the proceedings, to explain

the rights of the subject of the investigation to a fair hearing

without prejudgment or to provide the response of the subject of

the investigation to the complaint. In acting to dismiss a

complaint for lack of probable cause to file formal charges, the

board may, at its discretion, issue a statement or report to the

complainant or to the subject of the complaint, which may

contain the identity of the complainant, the identity of the

subject of the complaint, the contents and nature of the

complaint, the actions taken in the conduct of the investigation

and the results and conclusions of the investigation. The board

may include with a report a copy of information or evidence

acquired in the course of the investigation.

(9) If the board finds probable cause to file formal charges

concerning mental or physical disability against a justice,

judge or justice of the peace, the board shall so notify the

subject of the charges and provide the subject with an

opportunity to resign from judicial office or, when appropriate,

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to enter a rehabilitation program prior to the filing of the

formal charges with the Court of Judicial Discipline.

(10) Members of the board and its chief counsel and staff

shall be absolutely immune from suit for all conduct in the

course of their official duties. No civil action or disciplinary

complaint predicated upon the filing of a complaint or other

documents with the board or testimony before the board may be

maintained against any complainant, witness or counsel.

(b) There shall be a Court of Judicial Discipline, the

composition, powers and duties of which shall be as follows:

(1) The court shall be composed of a total of eight members

as follows: [three] two judges other than senior judges, one

from the courts of common pleas[,] and the other from either the

Superior Court or the Commonwealth Court, [one justice of the

peace,] two non-judge members of the bar of the Supreme Court

and [two] four non-lawyer [electors] members of the public. [Two

judges, the justice of the peace and one non-lawyer elector

shall be appointed to the court by the Supreme Court. One

judge,] The judge from the courts of common pleas, the judge

from either the Superior Court or the Commonwealth Court, and

the two non-judge members of the bar of the Supreme Court [and

one non-lawyer elector] shall be appointed to the court by the

Governor. Four non-lawyer members of the public shall be

appointed to the board by the General Assembly as follows: one

each shall be appointed by the President pro tempore of the

Senate, the Minority Leader of the Senate, the Speaker of the

House of Representatives and the Minority Leader of the House of

Representatives. In making appointments to the board, each

appointing authority shall take into consideration that the

board should include both men and women who come from racially

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and ethnically diverse backgrounds and reflect the geographic

diversity of this Commonwealth.

(2) Except for the initial appointees whose terms shall be

provided by the schedule to this article, each member shall

serve for a term of four years; however, the member, rather than

the member's successor, shall continue to participate in any

hearing in progress at the end of the member's term. All members

must be residents of this Commonwealth. No more than two of the

members appointed by the [Supreme Court] General Assembly may be

registered in the same political party. No more than two of the

members appointed by the Governor may be registered in the same

political party. Membership of a judge [or justice of the peace]

shall terminate if the judge [or justice of the peace] ceases to

hold the judicial position that qualified the judge or justice

of the peace for appointment. Membership shall terminate if a

member attains a position that would have rendered that person

ineligible for appointment at the time of the appointment. A

vacancy on the court shall be filled by the respective

appointing authority for the remainder of the term to which the

member was appointed in the same manner in which the original

appointment occurred. No member of the court may serve more than

four consecutive years but may be reappointed after a lapse of

one year.

(3) The court shall prescribe general rules governing the

conduct of members. A member may be removed by the court for a

violation of the rules of conduct prescribed by the court. No

member, during the member's term of service, may hold office in

any political party or political organization. Except for a

judicial member, no member of the court, during the member's

term of service, may hold a compensated public office or public

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appointment. All members of the court shall be reimbursed for

expenses necessarily incurred in the discharge of their official

duties.

(4) The court shall appoint staff and prepare and administer

its own budget as provided by law and undertake actions needed

to ensure its efficient operation. All actions of the court,

including disciplinary action, shall require approval by a

majority vote of the members of the court. [The budget request

of the court shall be made as a separate item in the request by

the Supreme Court on behalf of the Judicial Branch to the

General Assembly.] The budget request of the court shall be made

by the court as a separate request to the General Assembly from

that of the Supreme Court on behalf of the Judicial Branch. The

court shall adopt rules to govern the conduct of proceedings

before the court.

(4.1) Upon the filing of formal charges with the court by

the board, the court shall issue an interim order directing the

immediate suspension, with pay, of any justice, judge or justice

of the peace against whom formal charges have been filed with

the court by the board. The court shall issue an interim order

directing the immediate suspension, with or without pay, of any

justice, judge or justice of the peace 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.

(5) 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

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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.

(6) Members of the court and the court's staff shall be

absolutely immune from suit for all conduct in the course of

their official duties, and no civil action or disciplinary

complaint predicated on testimony before the court may be

maintained against any witness or counsel.

follows:

(1) A justice, judge or justice of the peace shall have the

right to appeal a final adverse order of discipline of the

court. A judge or justice of the peace shall have the right to

appeal to the Supreme Court in a manner consistent with rules

adopted by the Supreme Court; a justice shall have the right to

appeal to a special tribunal composed of seven judges, other

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than senior judges, chosen by lot from the judges of the

Superior Court and Commonwealth Court who do not sit on the

Court of Judicial Discipline or the board, in a manner

consistent with rules adopted by the Supreme Court. The special

tribunal shall hear and decide the appeal in the same manner in

which the Supreme Court would hear and decide an appeal from an

order of the court.

(2) On appeal, the Supreme Court or special tribunal shall

review the record of the proceedings of the court 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 or special tribunal may revise or reject an order

of the court upon a determination that the order did not sustain

this standard of review; otherwise, the Supreme Court or special

tribunal shall affirm the order of the court.

(3) An order of the court which dismisses a complaint

against a judge or justice of the peace may be appealed by the

board to the Supreme Court, but the appeal shall be limited to

questions of law. An order of the court which dismisses a

complaint against a justice of the Supreme Court may be appealed

by the board to a special tribunal in accordance with paragraph

(1), but the appeal shall be limited to questions of law.

(4) No justice, judge or justice of the peace may

participate as a member of the board, the court, a special

tribunal or the Supreme Court in any proceeding in which the

justice, judge or justice of the peace is a complainant, the

subject of a complaint, a party or a witness.

(d) A justice, judge or justice of the peace shall be

subject to disciplinary action pursuant to this section as

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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;

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. In the case of a mentally

or physically disabled justice, judge or justice of the peace,

the court may enter an order of removal from office, retirement,

suspension or other limitations on the activities of the

justice, judge or justice of the peace as warranted by the

record. Upon a final order of the court for suspension without

pay or removal, prior to any appeal, the justice, judge or

justice of the peace shall be suspended or removed from office;

and the salary of the justice, judge or justice of the peace

shall cease from the date of the order.

[(2) 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.]

(3) A justice, judge or 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

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ineligible for judicial office.

(4) A justice, judge or justice of the peace who files for

nomination for or election to any public office other than a

judicial office shall forfeit automatically his judicial office.

(5) This section is in addition to and not in substitution

for the provisions for impeachment for misbehavior in office

contained in Article VI. No justice, judge or justice of the

peace against whom impeachment proceedings are pending in the

Senate shall exercise any of the duties of office until

acquittal.

(e) Notwithstanding any provision in this article, the

Supreme Court shall be prohibited from exercising its authority

at King's Bench or its power of extraordinary jurisdiction to

initiate or assume jurisdiction of a disciplinary proceeding

against a justice, judge or justice of the peace.

Section 2. (a) Upon the first passage by the General

Assembly of this proposed constitutional amendment, the

Secretary of the Commonwealth shall proceed immediately to

comply with the advertising requirements of section 1 of Article

XI of the Constitution of Pennsylvania and shall transmit the

required advertisements to two newspapers in every county in

which such newspapers are published in sufficient time after

passage of this proposed constitutional amendment.

(b) Upon the second passage by the General Assembly of this

proposed constitutional amendment, the Secretary of the

Commonwealth shall proceed immediately to comply with the

advertising requirements of section 1 of Article XI of the

Constitution of Pennsylvania and shall transmit the required

advertisements to two newspapers in every county in which such

newspapers are published in sufficient time after passage of

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this proposed constitutional amendment. The Secretary of the

Commonwealth shall submit this proposed constitutional amendment

to the qualified electors of this Commonwealth at the first

primary, general or municipal election which meets the

requirements of and is in conformance with section 1 of Article

XI of the Constitution of Pennsylvania and which occurs at least

three months after the proposed constitutional amendment is

passed by the General Assembly.

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