PRIOR PASSAGE - 1992-1 PRINTER'S NO. 2
No. 1 Session of 1993
INTRODUCED BY DeWEESE, CALTAGIRONE, KUKOVICH, VAN HORNE, GODSHALL, ROBINSON, DERMODY, CARONE, CLARK, BUXTON, BATTISTO, FAIRCHILD, HERMAN, MELIO, MICOZZIE, MIHALICH, NICKOL, PESCI, PETRARCA, CESSAR, PITTS, RYAN, LLOYD, FREEMAN, CAPPABIANCA, McNALLY, HALUSKA, TRICH, RUDY, FLICK, D. R. WRIGHT, REBER, CORRIGAN, CURRY, STRITTMATTER, SCHULER, YEWCIC, PLATTS, GORDNER, ZUG, TRUE, ARMSTRONG, ROBERTS, FEE, GEORGE, TIGUE, JAROLIN, KASUNIC, HANNA, DURHAM, STISH, MANDERINO, BEBKO- JONES, LEDERER, COY, STEIGHNER, COLAFELLA, SURRA, DeLUCA, GIGLIOTTI, STURLA, COWELL, TANGRETTI, LAUGHLIN, COLAIZZO, STETLER, RITTER, STABACK, KIRKLAND, PETRONE, ROEBUCK, SANTONI, PISTELLA, MICHLOVIC, ROONEY, RICHARDSON, JAMES, BARLEY, BIRMELIN, GEIST, KENNEY, MARKOSEK AND BLAUM, JANUARY 25, 1993
REFERRED TO COMMITTEE ON RULES, JANUARY 25, 1993
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 sections 16 and 18 of Article V be amended to read: 9 § 16. Compensation and retirement of justices, judges and 10 justices of the peace. 11 (a) Justices, judges and justices of the peace shall be 12 compensated by the Commonwealth as provided by law. Their
1 compensation shall not be diminished during their terms of 2 office, unless by law applying generally to all salaried 3 officers of the Commonwealth. 4 (b) Justices, judges and justices of the peace shall be 5 retired upon attaining the age of 70 years. Former and retired 6 justices, judges and justices of the peace shall receive such 7 compensation as shall be provided by law. [No compensation shall 8 be paid to any justice, judge or justice of the peace who is 9 suspended or removed from office under section 18 of this 10 article or under Article VI.] Except as provided by law, no 11 salary, retirement benefit or other compensation, present or 12 deferred, shall be paid to any justice, judge or justice of the 13 peace, who under section 18 or under Article VI, is suspended, 14 removed or barred from holding judicial office for conviction of 15 a felony or misconduct in office or conduct which prejudices the 16 proper administration of justice or brings the judicial office 17 into disrepute. 18 (c) A former or retired justice or judge may, with his 19 consent, be assigned by the Supreme Court on temporary judicial 20 service as may be prescribed by rule of the Supreme Court. 21 [§ 18. Suspension, removal, discipline and compulsory 22 retirement. 23 (a) There shall be a Judicial Inquiry and Review Board 24 having nine members as follows: three judges of the courts of 25 common pleas from different judicial districts and two judges of 26 the Superior Court, all of whom shall be selected by the Supreme 27 Court; and two non-judge members of the bar of the Supreme Court 28 and two non-lawyer electors, all of whom shall be selected by 29 the Governor. 30 (b) The members shall serve for terms of four years, 19930H0001B0002 - 2 -
1 provided that a member, rather than his successor, shall 2 continue to participate in any hearing in progress at the end of 3 his term. A vacancy on the board shall be filled by the 4 respective appointing authority for the balance of the term. The 5 respective appointing authority may remove a member only for 6 cause. No member shall serve more than four consecutive years; 7 he may be reappointed after a lapse of one year. Annually the 8 members of the board shall elect a chairman. The board shall act 9 only with the concurrence of a majority of its members. 10 (c) A member shall not hold office in a political party or 11 political organization. Members, other than judges, shall be 12 compensated for their services as the Supreme Court shall 13 prescribe. All members shall be reimbursed for expenses 14 necessarily incurred in the discharge of their official duties. 15 (d) Under the procedure prescribed herein, any justice or 16 judge may be suspended, removed from office or otherwise 17 disciplined for violation of section 17 of this article, 18 misconduct in office, neglect of duty, failure to perform his 19 duties, or conduct which prejudices the proper administration of 20 justice or brings the judicial office into disrepute, and may be 21 retired for disability seriously interfering with the 22 performance of his duties. 23 (e) The board shall keep informed as to matters relating to 24 grounds for suspension, removal, discipline, or compulsory 25 retirement of justices or judges. It shall receive complaints or 26 reports, formal or informal, from any source pertaining to such 27 matters, and shall make such preliminary investigations as it 28 deems necessary. 29 (f) The board, after such investigation, may order a hearing 30 concerning the suspension, removal, discipline or compulsory 19930H0001B0002 - 3 -
1 retirement of a justice or judge. The board's orders for 2 attendance of or testimony by witnesses or for the production of 3 documents at any hearing or investigation shall be enforceable 4 by contempt proceedings. 5 (g) If, after hearing, the board finds good cause therefor, 6 it shall recommend to the Supreme Court the suspension, removal, 7 discipline or compulsory retirement of the justice or judge. 8 (h) The Supreme Court shall review the record of the board's 9 proceedings on the law and facts and may permit the introduction 10 of additional evidence. It shall order suspension, removal, 11 discipline or compulsory retirement, or wholly reject the 12 recommendation, as it finds just and proper. Upon an order for 13 compulsory retirement, the justice or judge shall be retired 14 with the same rights and privileges were he retired under 15 section 16 of this article. Upon an order for suspension or 16 removal, the justice or judge shall be suspended or removed from 17 office, and his salary shall cease from the date of such order. 18 All papers filed with and proceedings before the board shall be 19 confidential but upon being filed by the board in the Supreme 20 Court, the record shall lose its confidential character. The 21 filing of papers with and the giving of testimony before the 22 board shall be privileged. 23 (i) No justice or judge shall participate as a member of the 24 board or of the Supreme Court in any proceeding involving his 25 suspension, removal, discipline or compulsory retirement. 26 (j) The Supreme Court shall prescribe rules of procedure 27 under this section. 28 (k) The Supreme Court shall prescribe rules of procedure for 29 the suspension, removal, discipline and compulsory retirement of 30 justices of the peace. 19930H0001B0002 - 4 -
1 (l) A justice, judge or justice of the peace convicted of 2 misbehavior in office by a court, disbarred as a member of the 3 bar of the Supreme Court or removed under this section 18 shall 4 forfeit automatically his judicial office and thereafter be 5 ineligible for judicial office. 6 (m) A justice or judge who shall file for nomination for or 7 election to any public office other than a judicial office shall 8 forfeit automatically his judicial office. 9 (n) This section is in addition to and not in substitution 10 for the provisions for impeachment for misbehavior in office 11 contained in Article VI. No justice, judge or justice of the 12 peace against whom impeachment proceedings are pending in the 13 Senate shall exercise any of the duties of his office until he 14 has been acquitted.] 15 § 18. Suspension, removal, discipline and other sanctions. 16 (a) There shall be an independent board within the judicial 17 branch, known as the Judicial Conduct Board, the composition, 18 powers and duties of which shall be as follows: 19 (1) The board shall be composed of 12 members, as follows: 20 two judges, other than senior judges, one from the courts of 21 common pleas and the other from either the Superior Court or the 22 Commonwealth Court; one justice of the peace, who need not be a 23 member of the bar of the Supreme Court; three non-judge members 24 of the bar of the Supreme Court; and six non-lawyer electors. 25 (2) The judge from either the Superior Court or the 26 Commonwealth Court, the justice of the peace, one non-judge 27 member of the bar of the Supreme Court and three non-lawyer 28 electors shall be appointed to the board by the Supreme Court. 29 The judge from the courts of common pleas, two non-judge members 30 of the bar of the Supreme Court and three non-lawyer electors 19930H0001B0002 - 5 -
1 shall be appointed to the board by the Governor. 2 (3) Except for the initial appointees, whose terms shall be 3 provided by the schedule to this article, the members shall 4 serve for terms of four years. All members must be residents of 5 this Commonwealth. No more than three of the six members 6 appointed by the Supreme Court may be registered in the same 7 political party. No more than three of the six members appointed 8 by the Governor may be registered in the same political party. 9 Membership of a judge or justice of the peace shall terminate if 10 the member ceases to hold the judicial position that qualified 11 the member for the appointment. Membership shall terminate if a 12 member attains a position that would have rendered the member 13 ineligible for appointment at the time of the appointment. A 14 vacancy shall be filled by the respective appointing authority 15 for the remainder of the term to which the member was appointed. 16 No member may serve more than four consecutive years but may be 17 reappointed after a lapse of one year. The Governor shall 18 convene the board for its first meeting. At that meeting, and 19 annually thereafter, the members of the board shall elect a 20 chairperson. The board shall act only with the concurrence of a 21 majority of its members. 22 (4) No member of the board, during the member's term, may 23 hold office in a political party or political organization. 24 Except for a judicial member, no member of the board, during the 25 member's term may hold a compensated public office or public 26 appointment. All members shall be reimbursed for expenses 27 necessarily incurred in the discharge of their official duties. 28 (5) The board shall prescribe general rules governing the 29 conduct of members. A member may be removed by the board for a 30 violation of the rules governing the conduct of members. 19930H0001B0002 - 6 -
1 (6) The board shall appoint a chief counsel and other staff, 2 prepare and administer its own budget as provided by law, 3 exercise supervisory and administrative authority over all board 4 staff and board functions, establish and promulgate its own 5 rules of procedure, prepare and disseminate an annual report and 6 take other actions as are necessary to ensure its efficient 7 operation. The budget request of the board shall be made by the 8 board as a separate item in the request submitted by the Supreme 9 Court on behalf of the Judicial Branch to the General Assembly. 10 (7) The board shall receive and investigate complaints 11 regarding judicial conduct filed by individuals or initiated by 12 the board; issue subpoenas to compel testimony under oath of 13 witnesses, including the subject of the investigation, and to 14 compel the production of documents, books, accounts and other 15 records relevant to the investigation; determine whether there 16 is probable cause to file formal charges against a justice, 17 judge or justice of the peace for conduct proscribed by this 18 section; and present the case in support of the charges before 19 the Court of Judicial Discipline. 20 (8) Complaints filed with the board or initiated by the 21 board shall not be public information. Statements, testimony, 22 documents, records or other information or evidence acquired by 23 the board in the conduct of an investigation shall not be public 24 information. A justice, judge or justice of the peace who is the 25 subject of a complaint filed with the board or initiated by the 26 board, or of an investigation conducted by the board, shall be 27 apprised of the nature and content of the complaint and afforded 28 an opportunity to respond fully to the complaint prior to any 29 probable cause determination by the board. All proceedings of 30 the board shall be confidential except when the subject of the 19930H0001B0002 - 7 -
1 investigation waives confidentiality. If, independent of any 2 action by the board, the fact that an investigation by the board 3 is in progress becomes a matter of public record, the board may, 4 at the direction of the subject of the investigation, issue a 5 statement to confirm that the investigation is in progress, to 6 clarify the procedural aspects of the proceedings, to explain 7 the rights of the subject of the investigation to a fair hearing 8 without prejudgment, or to provide the response of the subject 9 of the investigation to the complaint. In acting to dismiss a 10 complaint for lack of probable cause to file formal charges, the 11 board may, at its discretion, issue a statement or report to the 12 complainant or to the subject of the complaint, which may 13 contain the identity of the complainant, the identity of the 14 subject of the complaint, the contents and nature of the 15 complaint, the actions taken in the conduct of the investigation 16 and the results and conclusions of the investigation. The board 17 may include with a report a copy of information or evidence 18 acquired in the course of the investigation. 19 (9) If the board finds probable cause to file formal charges 20 concerning mental or physical disability against a justice, 21 judge or justice of the peace, the board shall so notify the 22 subject of the charges, and provide the subject with an 23 opportunity to resign from judicial office or, when appropriate, 24 to enter a rehabilitation program prior to the filing of the 25 formal charges with the Court of Judicial Discipline. 26 (10) Members of the board and its chief counsel and staff 27 shall be absolutely immune from suit for all conduct in the 28 course of their official duties. No civil action or disciplinary 29 complaint predicated upon the filing of a complaint or other 30 documents with the board or testimony before the board may be 19930H0001B0002 - 8 -
1 maintained against any complainant, witness or counsel. 2 (b) There shall be a Court of Judicial Discipline, the 3 composition, powers and duties of which shall be as follows: 4 (1) The court shall be composed of a total of eight members 5 as follows: three judges other than senior judges from the 6 courts of common pleas, the Superior Court or the Commonwealth 7 Court; one justice of the peace; two non-judge members of the 8 bar of the Supreme Court; and two non-lawyer electors. Two 9 judges, the justice of the peace and one non-lawyer elector 10 shall be appointed to the court by the Supreme Court. One judge, 11 the two non-judge members of the bar of the Supreme Court and 12 one non-lawyer elector shall be appointed to the court by the 13 Governor. 14 (2) Except for the initial appointees, whose terms shall be 15 provided by the schedule to this article, each member shall 16 serve for a term of four years; however, the member, rather than 17 the member's successor, shall continue to participate in any 18 hearing in progress at the end of the member's term. All members 19 must be residents of this Commonwealth. No more than two of the 20 members appointed by the Supreme Court may be registered in the 21 same political party. No more than two of the members appointed 22 by the Governor may be registered in the same political party. 23 Membership of a judge or justice of the peace shall terminate if 24 the judge or justice of the peace ceases to hold the judicial 25 position that qualified the judge or justice of the peace for 26 appointment. Membership shall terminate if a member attains a 27 position that would have rendered that person ineligible for 28 appointment at the time of the appointment. A vacancy on the 29 court shall be filled by the respective appointing authority for 30 the remainder of the term to which the member was appointed in 19930H0001B0002 - 9 -
1 the same manner in which the original appointment occurred. No 2 member of the court may serve more than four consecutive years 3 but may be reappointed after a lapse of one year. 4 (3) The court shall prescribe general rules governing the 5 conduct of members. A member may be removed by the court for a 6 violation of the rules of conduct prescribed by the court. No 7 member, during the member's term of service, may hold office in 8 any political party or political organization. Except for a 9 judicial member, no member of the court, during the member's 10 term of service, may hold a compensated public office or public 11 appointment. All members of the court shall be reimbursed for 12 expenses necessarily incurred in the discharge of their official 13 duties. 14 (4) The court shall appoint staff and prepare and administer 15 its own budget as provided by law and undertake actions needed 16 to ensure its efficient operation. All actions of the court, 17 including disciplinary action, shall require approval by a 18 majority vote of the members of the court. The budget request of 19 the court shall be made as a separate item in the request by the 20 Supreme Court on behalf of the Judicial Branch to the General 21 Assembly. The court shall adopt rules to govern the conduct of 22 proceedings before the court. 23 (5) Upon the filing of formal charges with the court by the 24 board, the court shall promptly schedule a hearing or hearings 25 to determine whether a sanction should be imposed against a 26 justice, judge or justice of the peace pursuant to the 27 provisions of this section. The court shall be a court of 28 record, with all the attendant duties and powers appropriate to 29 its function. Formal charges filed with the court shall be a 30 matter of public record. All hearings conducted by the court 19930H0001B0002 - 10 -
1 shall be public proceedings, conducted pursuant to the rules 2 adopted by the court and in accordance with the principles of 3 due process and the law of evidence. Parties appearing before 4 the court shall have a right to discovery pursuant to the rules 5 adopted by the court and shall have the right to subpoena 6 witnesses and to compel the production of documents, books, 7 accounts and other records as relevant. The subject of the 8 charges shall be presumed innocent in any proceeding before the 9 court, and the board shall have the burden of proving the 10 charges by clear and convincing evidence. All decisions of the 11 court shall be in writing and shall contain findings of fact and 12 conclusions of law. A decision of the court may order removal 13 from office, suspension, censure or other discipline as 14 authorized by this section and as warranted by the record. 15 (6) Members of the court and the court's staff shall be 16 absolutely immune from suit for all conduct in the course of 17 their official duties, and no civil action or disciplinary 18 complaint predicated on testimony before the court may be 19 maintained against any witness or counsel. 20 (c) Decisions of the court shall be subject to review as 21 follows: 22 (1) A justice, judge or justice of the peace shall have the 23 right to appeal a final adverse order of discipline of the 24 court. A judge or justice of the peace shall have the right to 25 appeal to the Supreme Court in a manner consistent with rules 26 adopted by the Supreme Court; a justice shall have the right to 27 appeal to a special tribunal composed of seven judges, other 28 than senior judges, chosen by lot from the judges of the 29 Superior Court and Commonwealth Court who do not sit on the 30 Court of Judicial Discipline or the board, in a manner 19930H0001B0002 - 11 -
1 consistent with rules adopted by the Supreme Court. The special 2 tribunal shall hear and decide the appeal in the same manner in 3 which the Supreme Court would hear and decide an appeal from an 4 order of the court. 5 (2) On appeal, the Supreme Court or special tribunal shall 6 review the record of the proceedings of the court as follows: on 7 the law, the scope of review is plenary; on the facts, the scope 8 of review is clearly erroneous; and as to sanctions, the scope 9 of review is whether the sanctions imposed were lawful. The 10 Supreme Court or special tribunal may revise or reject an order 11 of the court upon a determination that the order did not sustain 12 this standard of review; otherwise, the Supreme Court or special 13 tribunal shall affirm the order of the court. 14 (3) An order of the court which dismisses a complaint 15 against a judge or justice of the peace may be appealed by the 16 board to the Supreme Court, but the appeal shall be limited to 17 questions of law. An order of the court which dismisses a 18 complaint against a justice of the Supreme Court may be appealed 19 by the board to a special tribunal in accordance with paragraph 20 (1), but the appeal shall be limited to questions of law. 21 (4) No justice, judge or justice of the peace may 22 participate as a member of the board, the court, a special 23 tribunal, or the Supreme Court in any proceeding in which the 24 justice, judge or justice of the peace is a complainant, the 25 subject of a complaint, a party or a witness. 26 (d) A justice, judge or justice of the peace shall be 27 subject to disciplinary action pursuant to this section as 28 follows: 29 (1) A justice, judge or justice of the peace may be 30 suspended, removed from office or otherwise disciplined for 19930H0001B0002 - 12 -
1 conviction of a felony; violation of section 17 of this article; 2 misconduct in office; neglect or failure to perform the duties 3 of office or conduct which prejudices the proper administration 4 of justice or brings the judicial office into disrepute, whether 5 or not the conduct occurred while acting in a judicial capacity 6 or is prohibited by law; or conduct in violation of a canon or 7 rule prescribed by the Supreme Court. In the case of a mentally 8 or physically disabled justice, judge or justice of the peace, 9 the court may enter an order of removal from office, retirement, 10 suspension or other limitations on the activities of the 11 justice, judge or justice of the peace as warranted by the 12 record. Upon a final order of the court for suspension without 13 pay or removal, prior to any appeal, the justice, judge or 14 justice of the peace shall be suspended or removed from office; 15 and the salary of the justice, judge or justice of the peace 16 shall cease from the date of the order. 17 (2) Prior to a hearing, the court may issue an interim order 18 directing the suspension, with or without pay, of any justice, 19 judge or justice of the peace against whom formal charges have 20 been filed with the court by the board or against whom has been 21 filed an indictment or information charging a felony. An interim 22 order under this paragraph shall not be considered a final order 23 from which an appeal may be taken. 24 (3) A justice, judge or justice of the peace convicted of 25 misbehavior in office by a court, disbarred as a member of the 26 bar of the Supreme Court or removed under this section shall 27 forfeit automatically his judicial office and thereafter be 28 ineligible for judicial office. 29 (4) A justice, judge or justice of the peace who files for 30 nomination for or election to any public office other than a 19930H0001B0002 - 13 -
1 judicial office shall forfeit automatically his judicial office. 2 (5) This section is in addition to and not in substitution 3 for the provisions for impeachment for misbehavior in office 4 contained in Article VI. No justice, judge or justice of the 5 peace against whom impeachment proceedings are pending in the 6 Senate shall exercise any of the duties of office until 7 acquittal. 8 (2) That section 24 of the Schedule to Article V be amended 9 to read: 10 § 24. Judicial [Inquiry and Review Board] Discipline. 11 [The selection of the first members of the Judicial Inquiry 12 and Review Board shall be made as follows: one judge of the 13 Superior Court, one non-judge member of the bar of the Supreme 14 Court, and one non-lawyer member shall be selected for two-year 15 terms; one judge of the Superior Court, one non-judge member of 16 the bar of the Supreme Court, and one non-lawyer member shall be 17 selected for four-year terms; one judge of the court of common 18 pleas shall be selected for a term of two years, one for a term 19 of three years, and one for a term of four years.] 20 (a) The members of the Judicial Inquiry and Review Board 21 shall vacate their offices 90 days after the adoption of the 22 amendment to section 18 of Article V, and all proceedings 23 pending before the Judicial Inquiry and Review Board and all 24 records shall be transferred to the Judicial Conduct Board for 25 further proceedings. 26 (b) Of the members initially appointed to the Judicial 27 Conduct Board: the judge appointed by the Supreme Court shall 28 serve a four-year term; and the judge appointed by the Governor 29 shall serve a three-year term. The justice of the peace 30 initially appointed shall serve a two-year term. Of the three 19930H0001B0002 - 14 -
1 non-judge members of the bar of the Supreme Court initially 2 appointed: the first appointed by the Governor shall serve a 3 three-year term; the next appointed by the Governor shall serve 4 a two-year term; and the non-judge member of the bar of the 5 Supreme Court appointed by the Supreme Court shall serve a one- 6 year term. Of the six non-lawyer electors initially appointed: 7 the first appointed by the Governor and the first appointed by 8 the Supreme Court shall serve a four-year term; the next 9 appointed by the Governor and the next appointed by the Supreme 10 Court shall serve a three-year term; and the next appointed by 11 the Governor and the next appointed by the Supreme Court shall 12 serve a two-year term. 13 (c) Of the three judges initially appointed to the Court of 14 Judicial Discipline: the first appointed by the Supreme Court 15 shall serve a four-year term; the next appointed by the Supreme 16 Court shall serve a three-year term; and the judge appointed by 17 the Governor shall serve a two-year term. The justice of the 18 peace initially appointed shall serve a one-year term. Of the 19 non-judge members of the bar initially appointed: the first 20 appointed shall serve a four-year term; and the next appointed 21 shall serve a three-year term. Of the two non-lawyer electors 22 initially appointed: the non-lawyer elector appointed by the 23 Governor shall serve a three-year term, and the non-lawyer 24 elector appointed by the Supreme Court shall serve a two-year 25 term. 26 Section 2. Upon passage by the General Assembly of these 27 proposed constitutional amendments, the Secretary of the 28 Commonwealth shall proceed immediately to comply with the 29 advertising requirements of section 1 of Article XI of the 30 Constitution of Pennsylvania and shall transmit the required 19930H0001B0002 - 15 -
1 advertisements to two newspapers in every county in which such 2 newspapers shall be published in sufficient time after passage 3 of these proposed constitutional amendments. Upon the second 4 passage of these proposed constitutional amendments by the 5 General Assembly, the Secretary of the Commonwealth shall 6 proceed immediately to comply with the advertising requirements 7 of section 1 of Article XI of the Constitution of Pennsylvania 8 and shall transmit the required advertisements to two newspapers 9 in every county in which such newspapers shall be published in 10 sufficient time after passage of these proposed constitutional 11 amendments. The Secretary of the Commonwealth shall submit these 12 proposed constitutional amendments to the qualified electors of 13 this Commonwealth at the first primary, general or municipal 14 election occurring at least three months after the proposed 15 constitutional amendments are passed by the General Assembly 16 which meets the requirements of and is in conformance with 17 section 1 of Article XI of the Constitution of Pennsylvania. L23L83JLW/19930H0001B0002 - 16 -