In Re: Magisterial District Judge Mark Bruno ( 2014 )

[J-59A-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: MAGISTERIAL DISTRICT JUDGE : No. 84 MM 2013
MARK A. BRUNO, MAGISTERIAL :
DISTRICT 15-1-01 Petition to Vacate the Order of the Supreme
:
Court dated February 1, 2013
:
:
:
PETITION OF: MARK A. BRUNO
: ARGUED: September 10, 2013
CONCURRING OPINION
DECIDED: August 28, 2014
MR. CHIEF JUSTICE CASTILLE OPINION FILED: October 1, 2014
The Opinion of the Court, which I authored, addresses the constitutional issues
raised, and is filed in support of the dispositive per curiam order already entered by the
Court. I write separately, unconstrained by majority authorship, to explain my own
views on additional points not resolved by the Opinion.1
The Court today holds that we have broad authority at King’s Bench to effectuate
our supervisory function over judicial personnel including, if appropriate, by suspending
without pay jurists charged with a felony for conduct on the bench. We explained that
the exercise of King’s Bench authority is discretionary; the expectation is that the Court
of Judicial Discipline (the “CJD”) will address all matters subject to that court’s Article V,
Section 18(d)(2) authority, and that this Court’s exercise of discretion will generally be
reserved for extraordinary circumstances.
1
As Mr. Justice Saylor has noted, special concurrences such as this are
“somewhat unusual but not without precedent.” Commonwealth v. King, 57 A.3d 607,
633 n.1 (Pa. 2012) (Saylor, J., specially concurring) (collecting cases).
In this case, Judge Bruno’s trial and acquittal of federal felony charges (criminal
conspiracy, mail fraud, and wire fraud) relating to service on the bench in Philadelphia
Traffic Court has diminished the necessity of addressing the propriety of the Court
entering its February 1, 2013, Order of suspension without pay in the first instance. The
Court was not necessarily of one mind on the question; the arguments of the parties
before us, as the Majority Opinion illustrates, illuminated pertinent tensions and
considerations; and the event of the acquittal counseled a more modest approach.
For my part, I believe that the Order, when entered in February 2013, was
appropriate, and indeed essential. Furthermore, in my view, the Judicial Conduct Board
(the “Board”) properly recognized that essentiality, and thus was correct to seek an
interim suspension without pay. In addition, in my respectful view, the CJD’s rationale
in restoring Judge Bruno’s salary during his suspension from the bench, a decision
which obviously (and helpfully) was also intended to open a dialogue with this Court,
was unpersuasive. Interim suspension orders issued by the CJD do not afford a direct
opportunity for this Court to provide the sort of necessary, supreme guidance that we
can in matters arising from a final decision of the CJD. See, e.g., In re Carney, 79 A.3d
490, 509-10 (Pa. 2013) (addressing whether jurist’s off-bench conduct in road rage
incident constituted “disrepute” in violation of Article V, Section 18(d)(1) of Pennsylvania
Constitution; reversing CJD). Thus, the CJD’s decision on interim suspension rejecting
the Board’s position left the Board without a direct review remedy.2
2
In light of the constitutional language prohibiting an appeal from an interim
suspension order of the CJD, limited review of a decision would be available only at
King’s Bench or via a certification procedure. See, e.g., City of Philadelphia v.
International Ass'n of Firefighters, Local 22, 999 A.2d 555, 563-64 (Pa. 2010).
[J-59 A-2013] - 2
I write separately, therefore, to embrace the opportunity to engage in the
dialogue prompted by the CJD.
I. Exercise of Discretion to Suspend, With or Without Pay, Pending
Accusations of Wrongdoing
There is no serious contest in this matter, as briefed by the parties, that the
purpose of vesting in the CJD the authority to suspend, with or without pay, a jurist
“against whom formal charges have been filed with the court by the [B]oard or against
whom has been filed an indictment or information charging a felony” is to protect the
appearance and actuality of fair tribunals in the Commonwealth. An interim suspension,
by its nature, is not punitive as a result. Compare PA. CONST. art. V, § 18(d)(1) (listing
disciplinary sanctions) with PA. CONST. art. V, § 18(d)(2) (authorizing interim
suspension; no right to appeal suspension). The concern vindicated by the CJD’s
authority relating to interim suspensions is the necessity to guard the fairness and
probity of the judicial process and the dignity, integrity, and authority of the judicial
system, all for the protection of the citizens of this Commonwealth. Accord In re
Franciscus, 369 A.2d 1190, 1194 (Pa. 1977); In re Assignment of Avellino, 690 A.2d
1138, 1143 (Pa. 1997) (“Avellino I”). Although premised upon different constitutional
authority, the responsibility is akin to that of this Court and the considerations justifying
the exercise of legal discretion by the CJD are similarly cabined by its justification. The
countervailing considerations implicate due process or fairness concerns. See City of
Philadelphia v. International Ass'n of Firefighters, Local 22, 999 A.2d 555, 563 (Pa.
2010) (“no adjudicatory body has unlimited discretion, and each and every adjudicator is
bound by the Constitution and particularly by the mandates of due process”); accord In
re Hasay, 686 A.2d 809, 815 (Pa. 1996) (disciplinary matter is civil proceeding but, in
[J-59 A-2013] - 3
light of severity of potential sanctions, recognize that jurist is “clothed with the
fundamental constitutional rights available to criminal defendants”). Evidence critical to
an interim suspension decision, and conditions of pay, is that which addresses these
concerns in the context of the two distinct questions implicated: (1) is a suspension
suitable and (2) is the withholding of pay warranted, pending resolution of, here, the
federal felony charges against Judge Bruno relating to his service on the bench.
Where, as in Judge Bruno’s case, the allegations of wrongdoing consist of felony
charges related to conduct on the bench, the justification for suspension pending
resolution of the felony charges is immediately obvious. Pending charges of any nature
can create perverse incentives for a presiding jurist to decide cases in a manner that
would curry favor with prosecuting authorities (including when the prosecuting authority
is distinct from that appearing before the jurist) or with a potential jury. See In Interest
of McFall, 617 A.2d 707, 712-14 (Pa. 1992) (Common Pleas Judge Mary Rose Fante
Cunningham, who surreptitiously conducted surveillance for FBI pursuant to agreement
that her cooperation would be made known to Philadelphia District Attorney, had “direct,
personal, substantial, and pecuniary interests” in matters before her because “she faced
potential prosecution by the same authorities that prosecuted defendants in her
courtroom every day.”). On the other hand, an accused jurist who believes the charges
are baseless could be biased against governmental authorities. A jurist acting
unconsciously or overtly upon these incentives undermines those values of justice that
all judges are sworn to uphold.3
3
These same incentives operate even where, unbeknownst to this Court or the
Board, the defendant jurist was negotiating with prosecutors before the charges, or a
plea arrangement, are announced -- as was the case with two disgraced jurists at the
center of the Luzerne County juvenile justice scandal, Michael T. Conahan and Mark A.
Ciavarella. As a result, a suspension immediately following announcement of the
charges or of a plea is not a full remedy and may justify this Court’s intervention before
(continued…)
[J-59 A-2013] - 4
The appearance of impropriety that would arise from allowing a charged but not
yet tried or convicted judge to sit in judgment of others adds a secondary indirect, but no
less momentous, burden upon the judicial system by undermining the confidence of the
bar and ultimately of the public. See McFall, 617 A.2d at 712 (“In order for the integrity
of the [J]udiciary to be compromised, we have held that a judge’s behavior is not
required to rise to a level of actual prejudice, but the appearance of impropriety is
sufficient.”). These considerations were especially poignant when this Court entered its
interim suspension order because Judge Bruno’s felony indictment related to allegations
that his objectivity as a jurist was compromised, and the allegations occurred in the
broader context of systemic judicial corruption in the Philadelphia Traffic Court, on
which he was serving by assignment of this Court. To state it bluntly, a jurist who sets
about to “fix” a case, or even to interfere ex parte in a case in a way that could influence
a decision, has no business on the bench. Improper influences are not limited to bribery
or quid pro quo exchanges of favors or consideration. And, this is not esoteric: all
judges know what is proper and what is not; and those who stray should expect and
accept severe consequences.
Withholding Judge Bruno’s judicial salary during his suspension was plainly
warranted by the circumstances. Initially, I stress that I do not advocate withholding
(…continued)
the CJD is able to act. See PA. CONST. art. V, § 18(d)(2) (CJD may suspend jurist
“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”). The object of
Rule of Judicial Administration 1921 (requiring judge to report to Chief Justice in the
event s/he is subject to any federal or state investigation or prosecution) is to ameliorate
this situation. Moreover, awareness of the prospect of immediate suspension without
pay obviously would serve as a further disincentive to those in robes who consider
criminal conduct relating to their judicial duties.
[J-59 A-2013] - 5
salary automatically whenever a judicial officer faces charges, or even felony charges.
Here, Judge Bruno was indicted on one count of mail fraud, one count of wire fraud, and
one count of conspiracy to commit wire and mail fraud. See 18 U.S.C. §§ 1341, 1343,
1349. In the abstract, these charges can derive from a variety of conduct. In Judge
Bruno’s case, however, the indictment was premised upon alleged conduct involving his
judicial duties, i.e., allegations that he “elevat[ed] his self-interest over his core judicial
obligations.” See Joseph v. Scranton Times L.P., 987 A.2d 633, 636 (Pa. 2009). By
their oaths and governing conduct rules, judges are put on notice that more is expected
of them than of other citizens. The stain of one implicates all, and all judicial officers
are, or should be, aware of that fact. When this Court acted, it did so in light of Judge
Bruno’s alleged conduct on the bench, which was irreconcilable with the judicial oath of
office.
Equally as important, the allegations against Judge Bruno could not be viewed in
isolation, but only in the context of an investigation into widespread corruption within the
Philadelphia Traffic Court, including ex parte adjusting of cases. In the aftermath of the
federal investigation, this Court appointed the Honorable Gary S. Glazer of the
Philadelphia County Court of Common Pleas to supervise the administration and reform
of the Traffic Court, with the goal of improving operations and ensuring restoration of the
integrity of adjudications of traffic offenses in Philadelphia. And, the General Assembly
has commenced the process of amending the Constitution to abolish Traffic Court. See
S.B. 333, 2013-2014 Gen. Assem., Reg. Sess. (2013).
Judge Bruno’s necessary suspension pending resolution of the federal charges
means that the citizens were not benefitting from the services of the jurist. Cf. Matter of
Cunningham, 538 A.2d 473, 478 n.8 (Pa. 1988) (loss of productivity of suspended jurist
“results in an intolerable burden placed upon the people of th[e] judicial district and
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would further strain the resources of the entire system”); id. at 478 (in disciplinary
context, “possible [sanction] should assist in ameliorating the injury caused by the
dereliction” of jurist). Of course, there is a presumption of innocence, and jurists facing
criminal charges have the same right to demand that the government prove its criminal
case. But, the practical reality is that, in the event of a conviction, restitution to the
Commonwealth of the salary paid during the suspension may be difficult or impossible.
If, as it so happened in Judge Bruno’s case, charges against the jurist are dismissed or
the jurist is acquitted, reinstatement with back pay is always available to make the jurist
whole. In my view, on balance, withholding salary in the case of felonies relating to
conduct on the bench -- and thereby allocating the risk of an erroneous decision
regarding pay to the accused jurist -- better vindicates the public interests in the integrity
and dignity of the judicial system, while sufficiently accommodating any concerns of
fairness to the jurist. Indeed, I may be “old school,” but in my view, it is disappointing
that a judge facing this sort of felony charges, for conduct occurring on the bench, would
even pursue the relief Judge Bruno pursued here. The message to Pennsylvania jurists
should be made clear, as the Board recognized in pursuing suspension without pay
before the CJD: more, much more, is required of those who would judge others.
Last, I would note that this result is consistent with the administrative approach of
the executive branch in the event an employee or official appointed by the Governor is
“formally charged with criminal conduct related to his employment with the
Commonwealth or which constitutes a felony.” By executive order, the employee or
appointed official is to be suspended without pay as soon as practicable after the
employee or official is formally charged. See 4 Pa. Code §§ 7.171-7.173, 7.178. I
suggest that, in future cases, the CJD reconsider its contrary position. In circumstances
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like these, it is beyond unseemly that the CJD would afford criminally accused members
of the Judiciary special treatment.
II. The CJD Opinion and Potential Pitfalls of CJD’s Approach
On May 24, 2013, the CJD ordered the interim suspension of Judge Bruno with
pay, pending further order of that court, and issued an opinion explaining the court’s
reasoning.4 The CJD held that the federal crimes with which Judge Bruno was charged
related to his everyday duties as a judicial officer and, as a result, his continued
presence on the bench pending resolution of the charges would have “a possible
negative impact on the administration of justice and could possibly harm the public
confidence in the [J]udiciary.” In re Bruno, 69 A.3d 780, 782 (Pa. Ct. Jud. Disc. 2013).
(That is an understatement.)
The CJD also held that suspension with pay was appropriate. In reaching this
conclusion, the CJD undertook to assess the strength of the case against Judge Bruno
and expressed its collective skepticism that the federal government would be able to
meet its burden of proving criminal conspiracy, and mail or wire fraud, premised upon
the facts averred in the federal charging document and its interpretation of federal
criminal law precedent. The CJD discounted and explained the allegations in the
complaint, without the benefit of hearing the evidence introduced at trial. Id. at 783-86,
789-90 (citing 18 U.S.C. § 1341; U.S. v. Cross, 128 F.3d 145 (3d Cir. 1997)). The CJD
4
The CJD also ordered the Administrative Office of Pennsylvania Court to provide
Judge Bruno backpay, from February 1, 2013 to May 24, 2013. The Office did not
comply and Bruno filed a Petition to Vacate the Order of the Pennsylvania Supreme
Court dated February 1, 2013. On July 11, 2013, the Court acted upon Bruno’s petition
by entertaining oral argument on the issues addressed by the Majority. The Court also
directed the AOPC to recommence paying Bruno’s salary pending final resolution of the
dispute, retroactive to February 1, 2013.
[J-59 A-2013] - 8
also opined upon the proper interpretation of federal decisional law, to conclude that the
federal government had a questionable probability of success in proving that Judge
Bruno engaged in the criminal conduct alleged. Id. at 794.
The CJD then noted with approval Judge Bruno’s election record, long tenure as
a magisterial district judge, election to leadership positions of trade associations by his
peers, and his appointment by the Court to the Minor Court Rules Committee. The CJD
also compared Judge Bruno’s case with others that had been deemed to merit
suspension, to determine whether suspension would be with or without pay.
The CJD weighed under a totality of circumstances test the nature of the
charges, its estimation of the chance of success in convicting Judge Bruno in the
federal proceedings, the time in which the case would come to trial, and the type of
suspension imposed in similar cases. The CJD determined that the appropriate action
was an interim suspension with pay. Id.
Out of deference to the concerns aired by the CJD in rejecting the position of the
Board (and of this Court, as reflected in our unanimous February 1, 2013, Order) and
concluding that a suspension with pay was the appropriate maximum response, I will
explain why I am not persuaded by its approach. In my view, the several elements
identified by the CJD as relevant to the interim suspension inquiry are incongruent with
the purposes of the Article V, Section 18(d)(2) authority of the CJD to issue interim
suspensions.
Initially, I agree that the nature of criminal charges leveled against a jurist are
relevant to an interim suspension inquiry and to pay conditions. I also agree that if,
unlike here, there was some specific reason to question the competence or the good
faith of the federal prosecutor, an assessment of the merits of the criminal charges may
be relevant. In other instances, however, I believe that a deconstruction of a criminal
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case premised upon a charging document and one-sided advocacy is a troubling
criterion which loses sight of the imperative of judicial integrity -- not only in the actuality
of integrity, but in the appearance of integrity. The fact that a jury later did not find guilt
beyond a reasonable doubt, as it so happened, and for whatever reason, does not
change the question of the appropriate response to felony charges implicating judicial
misconduct.
The CJD’s analysis seemed to suggest: one, that the federal prosecuting
authorities would be unable to prove the felonies charged as a matter of law and, two,
that the facts averred in the complaint were insufficient to prove that Judge Bruno
engaged in any criminal conduct. Starting with the second point, it is important to note
that the purpose of a charging document is to state a prima facie case. The burden on
the government to make a prima facie case is far lower than that which the government
is required for the case to proceed to a jury (or to a judicial factfinder) to determine
conviction or acquittal. As a result, the assumption that a charging document reflects
the universe of evidence available for trial is wrong. More importantly, as the
Pennsylvania Bar Association (the “PBA”) recognizes, where the CJD does not, the
deconstruction of a charging document “risks an inappropriate collateral attack on the
validity of th[e criminal] charges” and potentially embarrassing conflicts with the criminal
court adjudicating the charges. PBA Brief at 21.5 In addition, even an acquittal does
5
The PBA’s view proved to be prescient. For example, the CJD concluded that
allegations relating to the “ticket fixing” scheme failed as a matter of law to show how
any victim had been defrauded of a “property right.” According to the CJD’s definitive
assessment of federal law, the City of Philadelphia and the Commonwealth of
Pennsylvania are not legally entitled to fines and costs from alleged traffic offenders.
“[I]t isn’t until that finding is made that those citizens have a legal obligation to pay fines
and costs associated with some crime. . . . An adjudication of guilty is a prerequisite” to
a finding that the City of Philadelphia and the Commonwealth of Pennsylvania “have
been deprived of property or of a property right within the meaning of the mail and wire
(continued…)
[J-59 A-2013] - 10
(…continued)
fraud statutes. . . .” Bruno, 69 A.3d at 793. Moreover, the CJD concluded, “[t]he
Commonwealth’s interest in license suspensions and revocations is ancillary to its
power to regulate, and is not a property interest.” Id. (quoting U.S. v. Schwartz, 924
F.2d 410, 418 (2d Cir. 1991)).
The district court addressed this very point of federal law and rejected a similar
argument in disposing of the motion to dismiss of Judge Bruno’s co-defendant:
Sullivan’s argument . . . fails under the specific facts
of this case because the Indictment charges Defendants with
the object of the alleged fraud as being the prevention of
guilty adjudications; thereby, resulting in statutorily required
fees and costs not being assessed or paid to the
Commonwealth and the City. It is the fact that the specific
tickets at issue did not result in guilty adjudications with fees
and costs which is at the heart of the entire “ticket-fixing”
scheme alleged in the Indictment. The crux of the
Government's conspiracy claim is Defendants' unique ability
to prevent guilty adjudications that allows them to give
preferential treatment to certain ticketholders for those with
whom they were politically and socially connected. In this
case, Defendants are in the unique position of being Traffic
Court judges who have the power and, according to the
Indictment, used such power to not permit the adjudication of
specific traffic citations as guilty with fees and costs. Finding
in favor of Defendants' argument that the Commonwealth
and the City have not suffered economic harm because the
right to fees and costs here is only triggered by a guilty
adjudication, an assessment or deficiency being imposed, is
circular in the context of this case. To accept Defendants'
argument would permit the alleged conspirators in this case
to enter into a scheme to commit fraud and then hide behind
the argument that the success of their fraud precludes
prosecution under the “money or property interest”
requirement of the mail and wire fraud statutes.
Additionally, we point out that the Indictment alleges
that Defendants conspired and schemed to prevent the
payment of actual fines, not merely potential fines.
Defendants argue that, “[a]t most, the City and
(continued…)
[J-59 A-2013] - 11
not mean the government failed to adduce sufficient evidence to convict, and thus, the
jury’s verdict in this case does not justify an approach by which the merits of charges of
wrongdoing pending elsewhere are analyzed anticipatorily. And, finally, the question of
whether the federal government will ultimately prove violations of federal criminal law is
not coterminous with the question of whether there was misconduct on the bench. A
defense of “fixing tickets is not a federal offense, even though it may be unethical, if
money did not change hands” may prevail with jurors in an individual case; but an
allegation of ex parte interference to fix a case is most certainly a basis for a response,
(…continued)
Commonwealth have a potential entitlement to collect a fine
that might be assessed at a future point, but such a
speculative property interest by definition is not ‘property in
the [government's] hands.’ ” Regarding the Indictment before
us, Defendants' argument misses the mark because the
Indictment does not address traffic citations awaiting
adjudication, but addresses traffic citations that have been
adjudicated. Adjudicated, argues the Government, pursuant
to a conspiratorial scheme designed to prevent guilty rulings
resulting in the payment of fines.
Defendants' argument implies that the Government
has to prove that the Commonwealth and the City were
actually deprived of money or property. This is not required.
The relevant inquiry concerns what Defendants intended-not
whether the Commonwealth and the City were actually
deprived of money or property.
U.S. v. Sullivan, 2013 WL 3305217 at *7-8 (E.D. Pa. 2013) (internal citations omitted)
(citing U.S. v. Tulio, 263 F. App’x. 258, 261 (3d Cir.2008)).
The outcome of the federal trial perhaps reflected that, in this unfortunately
cynical age, jurors want more than what federal criminal law requires -- i.e., that they
want evidence of actual bribery, or money changing hands. But, that does not mean
that the government had no case, nor does it mean that the prosecution was
unwarranted.
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including an interim suspension with or without pay, by the CJD or, if necessary, by this
Court.
For better or for worse, the CJD’s opinion in Bruno now stands as precedent for a
jurist charged with corruption on the bench to seek to pre-litigate the strength of the
government’s criminal case, in order to subsidize his criminal defense. I agree with the
Board that more should be expected of Pennsylvania jurists (just as more is expected of
executive employees); and I hope that the Board continues to pursue its righteous
cause and that the CJD will one day come to embrace that view.
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