                           [J-49A-2017] [MO:Saylor, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


IN RE: ANGELES ROCA FIRST                    :   No. 42 EAP 2016
JUDICIAL DISTRICT PHILADELPHIA               :
COUNTY                                       :   Appeal from the Order dated December
                                             :   16, 2016 of the Court of Judicial
                                             :   Discipline at No. 14 JD 2015
APPEAL OF: ANGELES ROCA                      :
                                             :   ARGUED: May 9, 2017


                     CONCURRING AND DISSENTING OPINION


JUSTICE TODD                                          DECIDED: November 22, 2017

      I join the majority with the exception of its determination regarding our Court’s

power to review a Court of Judicial Discipline (“CJD”) order on the basis of whether the

sanction is “warranted by the record” pursuant to Art V, § 18(b)(5). Majority Opinion at

21. Initially, I do not believe this issue was properly preserved and argued. Rather than

addressing this issue, I would await targeted advocacy before deciding this significant

question of the breadth of our Court’s power of review. Moreover, and related thereto, I

have serious concerns regarding the wisdom of our Court’s review under such a

warranted-by-the-record standard, given the language of the Constitution regarding our

review, the history of that provision, and the resultant sweeping expansion of this

Court’s involvement in CJD’s sanctions.

      First, I do not believe this issue is properly before us. Appellant Angeles Roca

does not raise Art V, § 18(b)(5) as a basis for our review in her questions presented,

does not suggest such review in her statement of the scope and standard of review, and

does not develop in any way the idea that our “lawfulness” review includes

consideration of whether the sanction is supported by the record. At best, and as noted
by the majority, Appellant contends her sanction is “unwarranted under the facts of this

case, is extremely harsh and excessive and absolutely contrary to existing case law.”

Appellant’s Brief at 49. In making these bald assertions, however, she makes no legal

argument grounded on the constitutional provision on which the majority relies, but,

rather, does so only in support of her contention that our Court enjoys de novo review.

Appellant’s Brief at 58. Indeed, Appellant’s two-pronged argument focuses solely on (1)

whether our Court’s decision in In re Bruno, 101 A.3d 635 (Pa. 2014), provides for de

novo review, and (2) her claim that the CJD erroneously failed to discuss or distinguish

prior case law.    It is only in the context of these issues that Appellant generically

contrasts the facts in this matter with the sanction. See, e.g., Appellant’s Brief at 52, 58-

80. In my view, she does not preserve the question of whether we, as part of our

review, consider whether the sanction is “warranted by the record” pursuant to Art V, §

18(b)(5), and the majority, in an apparent effort to reach the issue, takes the above-

quoted language from page 49 of Appellant’s brief out of context. An issue of such

constitutional magnitude should be determined only after the issue is specifically and

unambiguously raised, and after pointed advocacy by the parties.

       Second, I have serious concerns about divining our Constitution to provide such

broad warranted-by-the-record review. First, the constitutional language regarding our

Court’s review of a jurist’s ultimate sanction is clear and limited:       we review CJD

decisions for “whether the sanctions imposed were lawful.” Art V, § 18(c)(2). The

majority, citing our consistent prior precedent, comes to the reasonable conclusion that

“lawful” is the equivalent of “available.” See, e.g., In re Merlo, 58 A.3d 1 (Pa. 2012); In

re Lokuta, 11 A.3d 427 (Pa. 2011); In re Berkhimer, 930 A.2d 1255 (Pa. 2007).

However, the majority does not stop there, but cross-references the mandate in Section

18(b)(5), which is directed at the CJD, and concludes that this Court must also review




                            [J-49A-2017] [MO: Saylor, C.J.] - 2
for whether the sanction is “warranted by the record” as an “unavoidable corollary” to

the CJD’s constitutional command. Majority Opinion at 21. The existence of distinct

constitutional language ― directed at the CJD in Section 18(b), and directed at this

Court in Section 18(c) ― raises significant questions about whether such review is, or

should be, part of our lawfulness review.

       Further, the 1993 amendments brought to Pennsylvania a significant overhaul of

the process for disciplining jurists, created the independent CJD, and circumscribed this

Court’s review of the discipline of judges; indeed, the amendments stripped our review

authority entirely where a Justice is the subject of the discipline. See Pa. Const. art. V,

§ 18(c)(1). These amendments to our Constitution thus suggest the framers envisioned

a more cabined review by our Court, rather than the more expansive one conceived by

the majority.

       Moreover, the ramifications of our Court reviewing for whether a sanction is

“warranted by the record” gives me pause. Such review gives our Court significant

power over CJD’s decisions, and could lead to our Court routinely weighing in on the

appropriateness of the sanction imposed by the CJD and substituting its judgment for

that of the CJD under the guise of appellate review ― as if the CJD were merely an

advisory board. This could severely erode the independence of the CJD. Indeed, the

majority’s interpretation of a warranted-by-the-record review seemingly results in a

standard of review more akin to that of abuse of discretion or even de novo ―

standards which would appear to be in conflict with the express constitutional language

seemingly limiting our review.

       Finally, the majority’s tack to reach the warranted-by-the-record issue by

deeming it a jurisdictional matter merits comment. Majority Opinion at 26. First, the

majority’s discussion regarding the “scope of appellate jurisdiction” and its claim that we




                           [J-49A-2017] [MO: Saylor, C.J.] - 3
can thus reach the warranted-by-the-record issue sua sponte, constitutes obiter dicta if,

indeed, as asserted by the majority, the issue was properly preserved. See id.; see

generally In re Estate of Cassell, 6 A.2d 60, 61 (Pa. 1939) (finding comments not

necessary to decision of case are dicta).        Indeed, the majority elevates a simple

question of issue preservation to one of constitutional jurisdictional proportions, a

course we properly strive to avoid. See, e.g., In re B., 394 A.2d 419, 421-22 (Pa. 1978)

(“Ordinarily, when faced with an issue raising both constitutional and non-constitutional

questions, we will make a determination on non-constitutional grounds, and avoid the

constitutional question if possible.”).

       Furthermore, the majority’s assertion that we may raise this issue sua sponte, is

misplaced, as it conflates concepts of a court’s appellate jurisdiction with the scope and

standard of its review. Specifically, “[j]urisdiction over the subject matter is conferred

solely by the Constitution and laws of the Commonwealth. The test for whether a court

has subject matter jurisdiction inquires into the competency of the court to determine

controversies of the general class to which the case presented for consideration

belongs.” In re Administrative Order No. 1-MD-2003, Appeal of Troutman, 936 A.2d 1,

5 (Pa. 2007) (citations omitted). It is foundational that jurisdictional questions may be

raised sua sponte. However, the jurisdiction of our Court ― the competency of our

Court to review CJD decisions involving a judge or magisterial district judge ― is plainly

answered in Article V, § 18(c)(1) (“A judge or justice of the peace shall have the right to

appeal to the Supreme Court in a manner consistent with rules adopted by the Supreme

Court;”).

       As is evident from the above, the issue raised by the majority does not go to

subject matter jurisdiction. Rather, it implicates the “manner of our appellate review” of

CJD sanctions, i.e., our standard of review ― be it de novo (as asserted by Appellant),




                             [J-49A-2017] [MO: Saylor, C.J.] - 4
limited to whether the sanction is available, or something in between as now suggested

by the majority. See Majority Opinion at 11. Contrary to the majority’s claims, this is not

a jurisdictional question because, regardless of what we determine our proper standard

of review to be ― narrow or broad ― and, more specifically, regardless of whether we

adopt the majority’s warranted-by-the-record review, our Court retains jurisdiction to

conduct its review of the CJD’s decisions.       Stated another way, regardless of the

answer to the majority’s “jurisdictional” query, we will not dismiss the appeal for wont of

jurisdiction. Indeed, this fact is what makes the cases cited by the majority clearly

distinguishable from this matter:     in those cases, the answer to the jurisdictional

question led to either further review by the court, or dismissal. Majority Opinion at 26-27

(citing, e.g., Commonwealth v. Sanders, 394 A.2d 522, 524 n.2, 525 (Pa. 1978)

(determining question of final order implicates jurisdiction, and finding no final order

warranted quashal of appeal); Commonwealth v. Beasley, 741 A.2d 1258, 1261-62 (Pa.

1999) (addressing timeliness of PCRA petition sua sponte, and, as no claims satisfied

exceptions to the jurisdictional time bar, affirmed denial of petition); Reading Anthracite

Co. v. Rich, 577 A.2d 881, 886 (Pa. 1990) (two-Justice Court) (finding appeal period

goes to “jurisdiction to hear and decide a controversy”)).

       Moreover, the majority’s citation to cases in the unique area of bifurcated

sentencing jurisdiction provides no further support, reaffirms a categorical approach to

jurisdiction, and actually supports the principle that questions regarding the proper

standard of review are not jurisdictional. Certain of the cases cited by the majority stand

for the unremarkable principle that jurisdictional issues are categorical ― specifically,

claims that implicate the discretionary aspects of sentencing are beyond the jurisdiction

of our Court, while we have jurisdiction over issues which go to the legality of sentence.

See Majority Opinion at 27 n.18 (citing Commonwealth v. Shiffler, 879 A.2d 185, 188-89




                           [J-49A-2017] [MO: Saylor, C.J.] - 5
(Pa. 2005); Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003)). However,

other decisions cited by the majority actually support my view that questions regarding

the proper standard of review are not jurisdictional in nature.             Specifically, in

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996), our Court first determined that,

because the question before it implicated the legality of sentence, we had jurisdiction.

Id. Only then did we continue to consider the non-jurisdictional question of the proper

standard of review, determining that 42 Pa.C.S. § 9781 provided that an appellate court

shall vacate a sentence and remand to the sentencing court if “the sentencing court

sentenced outside the sentencing guidelines and the sentence is unreasonable.” Smith,

673 A.2d at 895. Indeed, the non-jurisdictional “unreasonableness” review in Smith is

analogous to the question sub judice of whether our “lawfulness” review includes

consideration of whether the sanction is “warranted by the record.” Art. V, § 18(c)(2).

See also Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007).

       In short, contrary to the majority’s novel jurisdictional “scope” construct, which the

majority asserts may be raised sua sponte, questions regarding our Court’s proper

standard of review of CJD-imposed sanctions are non-jurisdictional and must be

adequately preserved and argued by the parties before we may address them. Here,

Appellant’s unadorned, single-sentence argument, which cites to none of the

constitutional provisions the majority interprets, fails to preserve an issue of such

constitutional import.

       Accordingly, while I join the majority in large measure, I do not believe that the

question of whether our Court has the authority to determine that a sanction is

“warranted by the record” is before us. I would withhold any such a determination until

we are presented with a case raising this issue, with focused advocacy.




                            [J-49A-2017] [MO: Saylor, C.J.] - 6
