                                   [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




                                      [J-59 A-2013] - 6
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




                                      [J-59 A-2013] - 7
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




                                    [J-59 A-2013] - 9
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.



                                    [J-59 A-2013] - 12
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.




                                     [J-59 A-2013] - 13
