PRIOR PASSAGE - NONE
PRINTER'S NO. 2979
No. 2341 Session of 1992
INTRODUCED BY HAGARTY, HAYDEN, PICCOLA, HECKLER, BLAUM, PITTS,
ITKIN, HERMAN, CLARK, DEMPSEY, SAURMAN, NICKOL, LLOYD, MUNDY,
COWELL, MIHALICH, TIGUE, GLADECK, FAIRCHILD, S. H. SMITH,
JOSEPHS, CIVERA, WOGAN, NOYE, JOHNSON, VANCE, MERRY, McHALE,
SEMMEL, FLICK, FAJT, LINTON, HASAY, STETLER, GERLACH,
TANGRETTI, HANNA, HARLEY AND WILLIAMS, JANUARY 28, 1992
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 28, 1992
A JOINT RESOLUTION
1 Proposing amendments to the Constitution of the Commonwealth of
2 Pennsylvania, changing provisions relating to judicial
3 discipline.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby resolves as follows:
6 Section 1. The following amendments to the Constitution of
7 Pennsylvania are proposed in accordance with Article XI:
8 (1) That section 18 of Article V be amended to read:
9 [§ 18. Suspension, removal, discipline and compulsory
10 retirement.
11 (a) There shall be a Judicial Inquiry and Review Board
12 having nine members as follows: three judges of the courts of
13 common pleas from different judicial districts and two judges of
14 the Superior Court, all of whom shall be selected by the Supreme
15 Court; and two non-judge members of the bar of the Supreme Court
16 and two non-lawyer electors, all of whom shall be selected by
1 the Governor.]
2 § 18. Judicial Conduct Board.
3 (a) There shall be a Judicial Conduct Board within the
4 executive branch, which shall be composed of a total of 11
5 members as follows: one active judge of the court of common
6 pleas appointed by the Supreme Court, one active judge of an
7 appellate court appointed by the Supreme Court, one active
8 justice of the peace, one non-judge member of the bar of the
9 Supreme Court appointed by the Supreme Court, two non-judge
10 members of the bar of the Supreme Court appointed by the
11 Governor and five non-lawyer electors appointed by the Governor.
12 All members of the Judicial Conduct Board shall be appointed by
13 the respective appointing authority, with the advice and consent
14 of a majority of the members elected to the Senate in the manner
15 provided in section 8 of Article IV of this Constitution.
16 (b) [The] Except for the initial appointees whose terms
17 shall be provided by the schedule to this amendment, the members
18 shall serve for terms of four years, provided that a member,
19 rather than his or her successor, shall continue to participate
20 in any hearing in progress at the end of [his term.] this term.
21 All members shall be residents of this Commonwealth, and no more
22 than six of the 11 members shall be registered in the same
23 political party. Judicial Conduct Board membership by a judge
24 shall terminate if the member ceases to hold the judicial
25 position that qualified him or her for the appointment.
26 Membership shall also terminate if a member attains a position
27 that would have rendered him or her ineligible for appointment
28 at the time of the appointment. A vacancy on the board shall be
29 filled by the respective appointing authority for the balance of
30 the term. The [respective appointing authority may remove a]
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1 Governor may remove any member only for cause. No member shall
2 serve more than four consecutive years[; he] but may be
3 reappointed after a lapse of one year. [Annually] The Governor
4 shall convene the board for its first meeting, and, at that
5 meeting and annually thereafter, the members of the board shall
6 elect a chairman. The board shall act only with the concurrence
7 of a majority of its members.
8 (c) [A member shall not] No member of the Judicial Conduct
9 Board, during his or her term of service, shall hold office in a
10 political party or political organization. [Members, other than
11 judges, shall be compensated for their services as the Supreme
12 Court shall prescribe.] Except for a judicial member, no member
13 of the Judicial Conduct Board, during his or her term of
14 service, shall hold a public office or public appointment,
15 compensated or uncompensated. All members shall be reimbursed
16 for expenses necessarily incurred in the discharge of their
17 official duties.
18 [(d) Under the procedure prescribed herein, any justice or
19 judge may be suspended, removed from office or otherwise
20 disciplined for violation of section 17 of this article,
21 misconduct in office, neglect of duty, failure to perform his
22 duties, or conduct which prejudices the proper administration of
23 justice or brings the judicial office into disrepute, and may be
24 retired for disability seriously interfering with the
25 performance of his duties.
26 (e) The board shall keep informed as to matters relating to
27 grounds for suspension, removal, discipline, or compulsory
28 retirement of justices or judges. It shall receive complaints or
29 reports, formal or informal, from any source pertaining to such
30 matters, and shall make such preliminary investigations as it
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1 deems necessary.
2 (f) The board, after such investigation, may order a hearing
3 concerning the suspension, removal, discipline or compulsory
4 retirement of a justice or judge. The board's orders for
5 attendance of or testimony by witnesses or for the production of
6 documents at any hearing or investigation shall be enforceable
7 by contempt proceedings.
8 (g) If, after hearing, the board finds good cause therefor,
9 it shall recommend to the Supreme Court the suspension, removal,
10 discipline or compulsory retirement of the justice or judge.
11 (h) The Supreme Court shall review the record of the board's
12 proceedings on the law and facts and may permit the introduction
13 of additional evidence. It shall order suspension, removal,
14 discipline or compulsory retirement, or wholly reject the
15 recommendation, as it finds just and proper. Upon an order for
16 compulsory retirement, the justice or judge shall be retired
17 with the same rights and privileges were he retired under
18 section 16 of this article. Upon an order for suspension or
19 removal, the justice or judge shall be suspended or removed from
20 office, and his salary shall cease from the date of such order.
21 All papers filed with and proceedings before the board shall be
22 confidential but upon being filed by the board in the Supreme
23 Court, the record shall lose its confidential character. The
24 filing of papers with and the giving of testimony before the
25 board shall be privileged.
26 (i) No justice or judge shall participate as a member of the
27 board or of the Supreme Court in any proceeding involving his
28 suspension, removal, discipline or compulsory retirement.
29 (j) The Supreme Court shall prescribe rules of procedure
30 under this section.
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1 (k) The Supreme Court shall prescribe rules of procedure for
2 the suspension, removal, discipline and compulsory retirement of
3 justices of the peace.
4 (l) A justice, judge or justice of the peace convicted of
5 misbehavior in office by a court, disbarred as a member of the
6 bar of the Supreme Court or removed under this section 18 shall
7 forfeit automatically his judicial office and thereafter be
8 ineligible for judicial office.
9 (m) A justice or judge who shall file for nomination for or
10 election to any public office other than a judicial office shall
11 forfeit automatically his judicial office.
12 (n) This section is in addition to and not in substitution
13 for the provisions for impeachment for misbehavior in office
14 contained in Article VI. No justice, judge or justice of the
15 peace against whom impeachment proceedings are pending in the
16 Senate shall exercise any of the duties of his office until he
17 has been acquitted.]
18 (d) The Judicial Conduct Board shall receive and investigate
19 complaints regarding judicial conduct filed by individuals or
20 initiated by the Judicial Conduct Board; promulgate rules for
21 determining whether a complaint is reasonably based; issue
22 subpoenas to compel testimony under oath of witnesses, including
23 the subject of the investigation, and to compel the production
24 of documents, books, accounts and other records relevant to the
25 investigation; determine whether there is probable cause to file
26 formal charges against a justice, judge or justice of the peace
27 for conduct proscribed in sections 17 and 20(a) of this article,
28 a finding of which shall require approval by a majority vote of
29 the Judicial Conduct Board; and present the case in support of
30 the charges.
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1 (e) The Judicial Conduct Board, by a majority vote, shall
2 appoint a chief counsel and other staff, prepare and administer
3 its own budget as provided by law and establish and promulgate
4 its own rules of procedure. The budget request of the Judicial
5 Conduct Board shall be made separately to the General Assembly.
6 (f) The justice, judge or justice of the peace whose conduct
7 is the subject of an investigation by the Judicial Conduct Board
8 shall be given an opportunity to fully respond to the complaint
9 and shall be afforded full discovery.
10 (g) Until a determination of probable cause has been made
11 and formal charges have been filed, all proceedings shall be
12 confidential except when the justice, judge or justice of the
13 peace under investigation waives confidentiality or in any case
14 in which, independent of any action by the Judicial Conduct
15 Board, the fact that an investigation is in process becomes
16 public, in which case the Judicial Conduct Board may, at the
17 direction of the justice, judge or justice of the peace under
18 investigation, issue a statement to confirm the pendency of the
19 investigation, clarify the procedural aspects of the
20 proceedings, explain the right of the justice, judge or justice
21 of the peace to a fair hearing without prejudgment or state that
22 the justice, judge or justice of the peace denies the
23 allegations.
24 (h) If, on a complaint of mental or physical disability, the
25 Judicial Conduct Board finds probable cause to file formal
26 charges against a justice, judge or justice of the peace, the
27 board shall present its findings to the justice, judge or
28 justice of the peace and provide him with the opportunity to
29 resign or, when appropriate, to enter a rehabilitation program
30 before the filing of formal charges.
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1 (i) Members of the Judicial Conduct Board and its chief
2 counsel and staff shall be absolutely immune from suit for all
3 conduct in the course of their official duties. A complaint
4 submitted to the Judicial Conduct Board or testimony related to
5 the complaint shall be privileged, and no civil action or
6 disciplinary complaint predicated on the complaint or testimony
7 shall be maintained against any complainant or witness or his or
8 her counsel.
9 (2) That Article V be amended by adding sections to read:
10 § 19. Court of Judicial Discipline.
11 (a) There shall be a Court of Judicial Discipline within the
12 judicial branch, which shall be composed of a total of seven
13 members as follows: one active judge of the court of common
14 pleas appointed by the Supreme Court, one active justice of the
15 peace appointed by the Supreme Court, one active judge of an
16 appellate court, one non-judge member of the bar of the Supreme
17 Court and three non-lawyer electors appointed by the Governor.
18 All members of the Court of Judicial Discipline shall be
19 appointed by the respective appointing authority, with the
20 advice and consent of a majority of the members elected to the
21 Senate in the manner provided in section 8 of Article IV of this
22 Constitution.
23 (b) Except for the initial appointees whose terms shall be
24 provided by the schedule to this amendment, the members shall
25 serve for terms of four years, provided that a member, rather
26 than his or her successor, shall continue to participate in any
27 hearing in progress at the end of this term. All members shall
28 be residents of this Commonwealth, and no more than four of the
29 seven members shall be registered in the same political party.
30 Court of Judicial Discipline membership by a judge shall
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1 terminate if the judge ceases to hold the judicial position that
2 qualified him for Court of Judicial Discipline appointment.
3 Court of Judicial Discipline membership shall also terminate if
4 a member attains a position that would have rendered him or her
5 ineligible for appointment at the time of the appointment. A
6 vacancy on the Court of Judicial Discipline shall be filled by
7 the Governor for the balance of the term. The Governor may
8 remove any member only for cause. No member of the Court of
9 Judicial Discipline shall serve more than four consecutive years
10 but may be reappointed after a lapse of one year.
11 (c) No member of the Court of Judicial Discipline, during
12 his or her term of service, shall hold office in any political
13 party or political organization. Except for a judicial member,
14 no member of the Court of Judicial Discipline, during his or her
15 term of service, shall hold a public office or public
16 appointment, compensated or uncompensated. All members shall be
17 reimbursed for expenses necessarily incurred in the discharge of
18 their official duties.
19 (d) The Court of Judicial Discipline shall be a court of
20 record with all the attendant duties and powers appropriate to
21 its function and shall hold public proceedings, conducted
22 consistent with the principles of due process and the law of
23 evidence; enable parties appearing before it to subpoena
24 witnesses and to compel the production of documents, books,
25 accounts and other records as relevant; render its decision in
26 writing, each decision to include its finding of fact,
27 conclusions of law and discussion of reasons; have its
28 proceedings transcribed; order removal from office, suspension,
29 censure or other discipline as authorized by section 20 of this
30 article and as warranted by the record; appoint staff; and
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1 prepare and administer its own budget as provided by law. All
2 actions of the Court of Judicial Discipline, including
3 disciplinary action, shall require approval by a majority vote
4 of the Court. The budget request of the Court of Judicial
5 Discipline shall be made separately to the General Assembly, and
6 not as an item in the request by the Supreme Court on behalf of
7 the judicial system.
8 (e) Upon the filing of formal charges by the Judicial
9 Conduct Board, the Court of Judicial Discipline shall schedule a
10 prompt hearing to determine whether a sanction pursuant to the
11 provisions of section 20 of this article should be imposed. The
12 Court of Judicial Discipline shall afford the justice, judge or
13 justice of the peace full discovery and a fair opportunity to
14 prepare for the hearing. The Judicial Conduct Board shall have
15 the burden of proving the conduct complained of by clear and
16 convincing evidence.
17 (f) Members of the Court of Judicial Discipline and the
18 Court's staff shall be absolutely immune from suit from all
19 conduct in the course of their official duties, and no civil
20 action or disciplinary complaint predicated on testimony before
21 the Court of Judicial Discipline shall be maintained against any
22 witness or his or her counsel.
23 § 20. Proscribed conduct and sanctions.
24 (a) Under the procedures prescribed in this section, any
25 justice, judge or justice of the peace may be suspended, removed
26 from office or otherwise disciplined for violation of section 17
27 of this article, misconduct in office, neglect or failure to
28 perform the duties of office or conduct which prejudices the
29 proper administration of justice or brings the judicial office
30 into disrepute, whether or not such conduct occurred while
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1 acting in a judicial capacity or is prohibited by law, and for
2 conduct in violation of a canon or rule prescribed by the
3 Supreme Court.
4 (b) The Court of Judicial Discipline shall, until there is
5 an acquittal or conviction for the felony offense, order
6 suspended without pay any justice, judge or justice of the peace
7 against whom there has been filed an indictment or information
8 charging a felony. An interim order of suspension, with or
9 without pay, may be entered against a justice, judge or justice
10 of the peace against whom formal charges have been filed with
11 the Court of Judicial Discipline by the Judicial Conduct Board.
12 Such order shall not be immediately appealable.
13 (c) In the case of a mentally or physically disabled
14 justice, judge or justice of the peace, the Court of Judicial
15 Discipline may enter an order of removal from office,
16 retirement, suspension or other limitations on the activities of
17 the justice, judge or justice of the peace as warranted by the
18 record.
19 (d) The Court of Judicial Discipline may order suspended,
20 with or without pay, any justice, judge or justice of the peace
21 after a determination that the continued service of the justice,
22 judge or justice of the peace poses a substantial or imminent
23 threat to the fair and impartial administration of justice.
24 (e) Upon an order of the Court of Judicial Discipline for
25 suspension without pay or removal, the justice or judge shall be
26 suspended or removed from office, and his salary shall cease
27 from the date of such order.
28 (f) A justice, judge or justice of the peace convicted of
29 misbehavior in office by a court, disbarred as a member of the
30 bar of the Supreme Court or removed under this section shall
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1 forfeit automatically his judicial office and thereafter be
2 ineligible for judicial office.
3 (g) A justice, judge or justice of the peace who files for
4 nomination for or election to any public office other than a
5 judicial office shall forfeit automatically his judicial office.
6 (h) This section is in addition to and not in substitution
7 for the provisions for impeachment for misbehavior in office
8 contained in Article VI. No justice, judge or justice of the
9 peace against whom impeachment proceedings are pending in the
10 Senate shall exercise any of the duties of the office until he
11 has been acquitted.
12 § 21. Review of Court of Judicial Discipline.
13 (a) A justice, judge or justice of the peace, other than a
14 justice of the Supreme Court, in a manner consistent with the
15 rules of the Supreme Court, may appeal to the Supreme Court a
16 final adverse order of the Court of Judicial Discipline. The
17 Supreme Court shall not review the record de novo, but rather as
18 it would review the record in a civil action in which the moving
19 party in the lower court had the burden of proving its
20 allegations by clear and convincing evidence. The Supreme Court
21 may revise or reject the order of the Court of Judicial
22 Discipline upon a determination the order did not sustain this
23 standard of review; otherwise, the Supreme Court shall affirm
24 the order of the Court of Judicial Discipline.
25 (b) A justice of the Supreme Court, in a manner consistent
26 with the rules of the Supreme Court, may appeal a final adverse
27 order of the Court of Judicial Discipline to a special review
28 panel consisting of seven judges to be chosen by lot from the
29 judges of the Superior Court and the Commonwealth Court, other
30 than senior judges, and who do not themselves sit on the Court
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1 of Judicial Discipline. The appeal shall in all other respects
2 conform with the requirements of this section.
3 (c) On appeal, the reviewing court or special review panel
4 shall review the record of the Court of Judicial Discipline
5 proceedings as follows: as to matters of law, the scope of
6 review shall be plenary, as to matters of fact, the scope of
7 review shall be whether the findings below were clearly
8 erroneous, as to the propriety of the sanctions imposed, the
9 scope of review shall be whether the sanctions imposed were
10 lawful.
11 (d) An order of the Court of Judicial Discipline dismissing
12 a complaint against a judge or justice of the peace may be
13 appealed by the Judicial Conduct Board to the Supreme Court, but
14 the appeal shall be limited to questions of law. An order of the
15 Court of Judicial Discipline dismissing a complaint against a
16 justice of the Supreme Court may be appealed by the Judicial
17 Conduct Board to a special review panel composed of seven
18 judges, not senior judges, chosen by lot from the judges of the
19 Superior Court and Commonwealth Court, but the appeal shall be
20 limited to questions of law.
21 (e) No justice, judge or justice of the peace shall
22 participate as a member of the Judicial Conduct Board, the Court
23 of Judicial Discipline, a special review panel or the Supreme
24 Court in any proceeding involving his or her suspension,
25 removal, discipline or compulsory retirement.
26 Section 2. (a) The members of the Judicial Inquiry and
27 Review Board appointed heretofore shall vacate their office 60
28 days after the issuance of the proclamation certifying voter
29 approval of the amendments to section 18 of Article V and all
30 proceedings pending before the board and all records shall be
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1 transferred to the Judicial Conduct Board.
2 (b) Of the members initially appointed to the Judicial
3 Conduct Board, the appellate court judge and the common pleas
4 court judge shall be appointed to serve four-year terms. The
5 justice of the peace appointed shall serve a three-year term.
6 The non-judge member of the bar of the Supreme Court first
7 appointed by the Governor shall serve a three-year term and the
8 second non-judge member shall serve a two-year term. The non-
9 judge member of the bar of the Supreme Court appointed by the
10 Supreme Court shall serve a two-year term. Of the non-lawyer
11 electors appointed by the Governor, the first two appointed
12 shall serve four-year terms; the next one appointed shall serve
13 a three-year term; and the final two appointed shall serve two-
14 year terms.
15 (c) Of the members initially appointed to the Court of
16 Judicial Discipline, the common pleas court judge appointed by
17 the Supreme Court shall serve a three-year term. The justice of
18 the peace appointed by the Supreme Court shall serve a two-year
19 term. The Governor shall appoint three members for terms of four
20 years, one member for a term of three years and one member for a
21 term of two years.
22 Section 3. (a) Upon passage by the General Assembly of this
23 proposed Constitutional amendment, the Secretary of the
24 Commonwealth shall proceed immediately to comply with the
25 advertising requirements of section 1 of Article XI of the
26 Constitution of Pennsylvania and shall transmit the required
27 advertisements to two newspapers in every county in which such
28 newspapers shall be published within 60 days after passage of
29 this proposed Constitutional amendment.
30 (b) Upon the second passage of this proposed Constitutional
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1 amendment by the General Assembly, the Secretary of the
2 Commonwealth shall proceed immediately to comply with the
3 advertising requirements of section 1 of Article XI of the
4 Constitution of Pennsylvania and shall transmit the required
5 advertisements to two newspapers in every county in which such
6 newspapers shall be published within 60 days after passage of
7 this proposed Constitutional amendment. The Secretary of the
8 Commonwealth shall submit this proposed Constitutional amendment
9 to the qualified electors of this Commonwealth at the first
10 primary, general or municipal election more than 100 days after
11 the proposed Constitutional amendment is passed by the General
12 Assembly in conformance with section 1 of Article XI of the
13 Constitution of Pennsylvania.
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