                          [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


                                DISSENTING OPINION


JUSTICE DONOHUE                                       DECIDED: November 22, 2017

      In this appeal as of right, Philadelphia County Court of Common Pleas Judge

Angeles Roca (“Roca”) challenges the December 16, 2016 Order and Opinion of the

Court of Judicial Discipline (the “CJD”) permanently removing her from judicial office.1

This Court must determine whether the CJD’s removal sanction is “lawful” pursuant to

our constitutionally prescribed standard of review regarding sanctions imposed by the

CJD. See Pa. Const. art. V, § 18(c)(2). Specifically, we must determine whether the

CJD is required to follow the discretion-limiting doctrine of stare decisis when imposing

sanctions. I am of the view that the CJD is bound to do so. In holding to the contrary,

the Majority, without explanation, abrogates a foundational precept of our common law

system of jurisprudence and, in my view, interprets Article V, Section 18 in a way that

the citizens of this Commonwealth never intended.        The result is that a court of


1
   Roca does not dispute that she violated provisions of the Code of Judicial Conduct,
engaged in conduct that prejudiced the proper administration of justice and brought her
judicial office into disrepute.
appointed judges may, with unbridled discretion, remove an elected jurist from office.

For the reasons that follow, I dissent.

       This Court’s standard of review2 regarding sanctions imposed by the CJD is set

forth in Article V, Section 18 of the Pennsylvania Constitution:




2
  The Majority accepts as appropriate, without analysis, the use of the term “scope of
review” as a proxy for “standard of review” in Article V, Section 18(c)(2), despite this
Court’s express distinction between scope and standard of review:

              “Scope of review” refers to the confines within which an
              appellate court must conduct its examination. In other
              words, it refers to the matters (or “what”) the appellate court
              is permitted to examine. In contrast, “standard of review”
              refers to the manner in which (or “how”) that examination is
              conducted.

Morrison v. Com., Dep't of Pub. Welfare, Office of Mental Health (Woodville State
Hosp.), 646 A.2d 565, 570 (Pa. 1994) (first and last emphasis added) (internal citations
omitted). At the very least it must be acknowledged that Article V, Section 18(c)(2) was
poorly drafted. It is our goal to discern the intent of the adopters of the Constitutional
amendment and our rules of constitutional interpretation require us to give words their
ordinary meaning and to give effect to all constitutional provisions. See Jubelirer v.
Rendell, 953 A.2d 514, 528 (Pa. 2008). A technical legal term in the Constitution,
however, must be given the meaning understood by those sophisticated in the law at
the time of enactment. See Robinson Twp., Washington Cty. v. Com., 83 A.3d 901, 956
(Pa. 2013); cf. 1 Pa.C.S. § 1903(a) (technical words that have acquired a peculiar and
appropriate meaning must be interpreted according to that meaning).

As to sanctions, it is clear that “scope of review,” as that phrase is used in Article V,
Section 18(c)(2), cannot be assigned its peculiar and appropriate meaning. It must
have been intended to mean “standard of review,” since the constitutional provision is
concerned with the question of “how” this Court’s review is conducted. Although this
Court has recognized that “scope of review” and “standard of review” were “often –
albeit erroneously – used interchangeably,” we have also made it clear that any
confusion regarding the terms was unfounded because, plainly, “the two terms carry
distinct meanings and should not be substituted for one another.” Morrison, 646 A.2d at
570. Accordingly, throughout this opinion, when discussing the manner in which this
Court reviews sanctions, I use the term “standard of review.” Regarding our scope of
review as to sanctions, I agree with the Majority that Article V, Section 18(b)(5) requires
us to review the entire record. See Majority Op. at 21.



                            [J-49A-2017] [MO: Saylor, C.J.] - 2
             On appeal, the Supreme Court … shall review the record of
             the proceedings of the [CJD] as follows: on the law, the
             scope of review is plenary; on the facts, the scope of review
             is clearly erroneous; and as to sanctions, the scope of
             review is whether the sanctions imposed were lawful. The
             Supreme Court … may revise or reject an order of the [CJD]
             upon a determination that the order did not sustain this
             standard of review; otherwise, the Supreme Court … shall
             affirm the order of the [CJD].

Pa. Const. art. V, § 18(c)(2). The Majority holds that we are bound only to determine

whether a sanction is “lawful” and that our standard of review in this regard is

perfunctory, as it only allows this Court to confirm that the sanction imposed by the CJD

was “available.” See Majority Op. at 17, 21. In reaching this conclusion, the Majority

indicates that “available” sanctions are those sanctions that the CJD may impose or, to

be more specific, those sanctions listed in Article V, Section 18 – namely, “removal from

office, suspension, censure or other discipline … .” Pa. Const. art. V, § 18(b)(5). That

sanctions must also be “warranted by the record” is, according to the Majority, the only

limitation on the concept that a “lawful” sanction must merely fall “into a category which

is theoretically ‘available’ to the CJD.” Majority Op. at 21. I challenge the Majority’s

interpretation of our standard of review on several grounds.

      First, contrary to the Majority, I believe we must engage in meaningful

constitutional interpretation regarding our intended standard of review. In interpreting

constitutional language, “the fundamental rule of construction which guides [this Court]

is that the Constitution's language controls and must be interpreted in its popular sense,

as understood by the people when they voted on its adoption.” Ieropoli v. AC & S

Corp., 842 A.2d 919, 925 (Pa. 2004). Nothing in the text of Article V, Section 18

requires us to interpret the word “lawful” as synonymous with “available.”        To the




                           [J-49A-2017] [MO: Saylor, C.J.] - 3
contrary, defining “lawful” to mean “available” strips the term of its plain and ordinary

meaning. Indeed, this Court creates the definition out of whole cloth. If the adopters

intended the Majority’s outcome, Article V, Section 18(c)(2) would have used the term

“available” and not “lawful.” In my view, what is “lawful” is, plainly, that which is allowed

by the law. In this regard, our Constitution designates the CJD as an Article V “court of

record, with all the attendant duties and powers appropriate to its function.” Pa. Const.

art. V, § 18(b)(5). As developed later in this Dissenting Opinion, in a common law legal

system such as ours, absent other discretion-limiting mechanisms, a court of record is

bound by stare decisis. Decisions not tethered to that principle are ipso facto not lawful.

       Although this Court has previously equated “lawful” with “available,” we have

never explained our rationale for excluding any other basis for finding a sanction

unlawful. See, e.g., In re Merlo, 58 A.3d 1, 15 (Pa. 2012) (observing that Article V,

Section 18 “sets forth removal as an available sanction for bringing disrepute upon the

judicial office”); In re Berkhimer, 930 A.2d 1255, 1260 (Pa. 2007) (indicating that

removal was a lawful sanction because the Constitution “sets forth removal as an

available sanction for bringing disrepute upon the judicial office”). The Majority offers no

further insight into the basis for this constitutional interpretation. As a result, this Court’s

“interpretation” of our standard of review of sanctions imposed by the CJD is

unsupported by important language in the provisions of our Constitution and reasoned

analysis.3




3
  Ironically, while disavowing the importance of precedent as to the CJD’s decision-
making process, the Majority follows the precedent of this Court to conclude that “lawful”
does not encompass stare decisis, a most basic precept of the common law.



                             [J-49A-2017] [MO: Saylor, C.J.] - 4
       Moreover, according to the Majority’s interpretation, our standard of review

amounts to nothing more than a cross-reference to confirm that the sanction imposed is

one mentioned in Article V, Section 18(b)(5).        Therefore, it follows that if the CJD

imposes a sanction of “removal from office, suspension, [or] censure,”4 jurists in this

Commonwealth effectively have no right of judicial appeal, even though our Constitution

guarantees them this right. See Pa. Const. art. V, § 18(c)(1) (providing that “a justice,

judge or justice of the peace shall have the right to appeal a final adverse order of

discipline of the [CJD]”); see also id., § 9 (setting forth “a right of appeal from a court of

record … to a court of record or to an appellate court”). Remarkably, the Majority

eviscerates, without an analytical or textual basis, the vertical nature of judicial review,

since under the Majority’s construct, this Court, the highest court in Pennsylvania, has

no ability to meaningfully review a decision of an inferior tribunal, the CJD, despite a

constitutional grant of appeal thereto. All of this is accomplished by the Majority without

any attempt to discern the intent of the voters who adopted the constitutional

amendment being interpreted.

       It is clear that the primary reason for the amendment, especially in the eyes of

the voters, was to separate the investigatory and adjudicatory functions within the



4
   As stated, Article V, Section 18 also permits the CJD to impose “other discipline as
authorized by this section … .,” Pa. Const. art. V., § 18(b)(5), a phrase not directly
implicated here since Roca was removed from office. However, in In re Melograne, 812
A.2d 1164 (Pa. 2002), a jurist challenged, inter alia, the CJD’s authority to disbar him
from the practice of law. Without specific reference to our standard of review of
sanctions, we determined that the CJD did not have such authority, because Article V,
Section 10(c) of the Pennsylvania Constitution confers exclusive authority upon this
Court to discipline attorneys. Id. at 1169. Accordingly, Melograne makes clear that the
CJD’s authority is inherently constrained by jurisprudential considerations beyond the
confines of Article V, Section 18.



                            [J-49A-2017] [MO: Saylor, C.J.] - 5
disciplinary system, not to insulate this Court entirely from the process of judicial

discipline. In fact, the plain language text of the proposed amendment provided to the

voters in May 1993 included nothing about this Court’s standard of review of sanctions

and nothing to suggest that this Court should be shielded from intervention in the

judicial disciplinary system generally. See Pittsburgh Post-Gazette, Ballot Questions,

1993 WLNR 2119966 (May 16, 1993).5

        What is also clear is that Article V, Section 18 grew out of the work and

recommendations of the Governor’s Judicial Reform Commission, commonly known as

the Beck Commission after its chairperson, the Honorable Phyllis Beck.                  See

Pennsylvania Court of Judicial Discipline, A Brief History of the Formation of the Court

of Judicial Discipline 1993-1994, at 2.6 Governor Robert Casey established the twenty-

three member Beck Commission by executive order on July 16, 1987, calling for an

extensive re-examination of the judicial system. Id. The resulting “Beck Report” made

recommendations regarding judicial reform in Pennsylvania. See id. (explaining that the

Beck Commission recommended that the functions of the judicial inquiry and review

5
    The referendum question on judicial discipline read as follows:

               Shall Article V of the Pennsylvania Constitution be amended
               to establish a Judicial Conduct Board to investigate
               complaints of judicial misconduct, to establish a Court of
               Judicial Discipline to adjudicate charges of judicial
               misconduct, to abolish the Judicial Inquiry and Review
               Board, and, except as provided by law, to bar payment of
               compensation, including retirement benefits, to justices,
               judges, and justices of the peace suspended, removed, or
               barred from judicial office for serious misconduct?

Pittsburgh Post-Gazette, Ballot Questions, 1993 WLNR 2119966 (May 16, 1993).
6
    This publication is available upon request from the Court of Judicial Discipline.



                             [J-49A-2017] [MO: Saylor, C.J.] - 6
board be divided between two autonomous bodies); see also Report of the Governor’s

Judicial Reform Commission (January 1988) (recommending the bifurcation of

investigatory and adjudicatory processes in judicial discipline, recommending that

judges and district justices have a right to appeal a decision of the adjudicatory tribunal

to the Supreme Court and indicating that justices of the Supreme Court should not be

permitted to judge other justices of the Supreme Court). While it would be fair to assert

that the Beck Report, and the constitutional amendment that ultimately evolved

therefrom, indicate a desire to insulate Supreme Court justices from discipline by the

Supreme Court, nothing can be gleaned from this to support either the Majority’s or

Justice Todd’s definition of “lawful.”

       We granted oral argument to consider the CJD’s obligation to adhere to the

doctrine of stare decisis in imposing a sanction in order for the sanction to be “lawful.”

In light of the Majority’s disposition of this case – which, in my view, bestows upon the

CJD powers that the people of this Commonwealth never intended for it to have – I

begin my discussion by anchoring the doctrine of stare decisis within the broader

framework of our legal system. Most nomocratic nations, i.e., nations that adhere to the

rule of law, follow one of two major legal traditions that act to cabin the discretion of

judges: the civil law system or the common law system.7 In a civil law system, which



7
   A failed alternative, the Court of Star Chamber – a supplement to the common law
courts in England during medieval times – was born of the king’s sovereign power and
privileges, was not bound by the common law and lacked the safeguards that common
law procedures typically provided. As a result, it became infamous for its “bizarre and
excessive sentences” and was ultimately abolished by an act of Parliament in 1641.
Edward P. Cheyney, The Court of Star Chamber, 18 Am. Hist. Rev., 729, 742-44
(1913). In the Star Chamber, “every conviction … involved imprisonment for a longer or
shorter period according to the will of the court or the pleasure of the sovereign.” Id. at
(…continued)


                            [J-49A-2017] [MO: Saylor, C.J.] - 7
predominates throughout Western Europe, South America, Asia and Africa, judges are

expected to refer to large bodies of codified rules when making decisions on a case.

Civil law judges do not create law and their judicial decisions are not considered a

source of law for future cases. Prior decisions made by one civil law court are not

binding on a subsequent court. Instead, judicial discretion is narrowly circumscribed by

statute. See Sabrina DeFabritiis, Lost in Translation: Oral Advocacy in a Land Without

Binding Precedent, 35 Suffolk Transnat'l L. Rev. 301, 312 (2012).

      The courts of Pennsylvania, however, like courts in forty-nine8 of the United

States (and elsewhere, including Great Britain, Australia and Canada), are progeny of a

common law legal tradition, born in England in the eleventh century. The common law

system is characterized by adherence by judges to a body of law established through

precedent. Precedent, generally speaking, refers to a prior decision or a consistent

group of prior decisions that represents a model to be followed in subsequent decisions.

See id. at 304, 328 (explaining that the “fundamental preference” of the common law




(continued…)
743. When fines were imposed as punishment, “the amount of money … was
graduated rather according to the need of impressing the community than in proportion
either to the immediate offense or to the ability of the culprit to pay it.” Id. at 744.
8
    Within the United States, only Louisiana maintains a hybrid legal system with
elements of both civil and common law traditions. See, generally, Mary Garvey Algero,
The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of
A Civil Law State in A Common Law Nation, 65 La. L. Rev. 775, 792 (2005); see also In
re Orso, 283 F.3d 686, 695 (5th Cir. 2002) (recognizing that Louisiana stands alone
among the fifty states in treating court decisions as secondary sources of law without
stare decisis precedential effect).



                          [J-49A-2017] [MO: Saylor, C.J.] - 8
involves judges applying “the decisions of their predecessors, adapting these to novel

cases through reasoning by analogy”).9

       Adherence to stare decisis is a hallmark of our common law system. Estate of

Grossman, 406 A.2d 726, 731 (Pa. 1979) (discussing stare decisis as “the essence of

common law courts today as in earlier times”). The doctrine “declares that, for the sake

of certainty a conclusion reached in one case should be applied to those which follow, if

the facts are substantially the same.” Commonwealth v. Mitchell, 902 A.2d 430, 473

(Pa. 2006) (citing Burtt's Estate, 44 A.2d 670, 677 (Pa. 1945)); see also Buckwalter v.

Borough of Phoenixville, 985 A.2d 728, 730 (Pa. 2009) (stating that “Pennsylvania

follows the doctrine of stare decisis, which promotes the evenhanded, predictable, and

consistent development of legal principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the judicial process”) (internal

quotations omitted).

       Pursuant to the doctrine, precedential decisions of this Court are binding

throughout the Commonwealth, “and the precedential decisions of the lower courts bind

those courts as well.” Ario v. Reliance Ins. Co., 980 A.2d 588, 599 (2009) (Castille, J.,

concurring); see also Yudacufski v. Com., Dep't of Transp., 454 A.2d 923, 926–27 (Pa.

1982) (holding that the trial court abused its discretion in failing to follow the established

precedent set forth in another court of common pleas decision, since “[i]t is well-settled

that, absent the most compelling circumstances, a judge should follow the decision of a



9
   Of course, judges in a common law system are often constrained in their decision-
making by statutes as well. In many areas of law, the General Assembly’s enactments
provide an additional discretion-limiting layer. As discussed infra, the criminal
sentencing context is one such area.



                            [J-49A-2017] [MO: Saylor, C.J.] - 9
colleague on the same court when based on the same set of facts”); Commonwealth v.

Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (acknowledging that a three-judge panel of

the Superior Court “is not empowered to overrule another panel of the Superior Court”

where the facts of the two cases are indistinguishable); State Farm Mutual Automobile

Insurance Company v. Department of Insurance, 720 A.2d 1071, 1073 (Pa. Commw.

1998) (recognizing that stare decisis binds the Commonwealth Court to follow its own

decisions “until they are either overruled or compelling reasons persuade us

otherwise”), aff'd, 747 A.2d 355 (Pa. 2000).

      Stare decisis, however, is not “an iron mold into which every utterance by a

Court, regardless of circumstances, parties, economic barometer and sociological

climate, must be poured, and, where, like wet concrete, it must acquire an unyielding

rigidity which nothing later can change.” Ayala v. Philadelphia Bd. of Pub. Ed., 305 A.2d

877, 887–88 (Pa. 1973), superseded by statute on other grounds, Tort Claims Act, 42

Pa.C.S. §§ 8541-8542. Rather, the doctrine demands “thorough examination and deep

thought” with respect to prior judicial decisions. Id. (quoting former Chief Justice Von

Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L. Rev. 409, 414 (1924)).

Thus, a court bound by stare decisis may determine that prior decisions should not be

followed as controlling precedent, but it may not do so without first paying proper

deference to those decisions. Id. If a court decides to depart from its precedent, it

should provide its reasons for doing so.10 Id.



10
   A judge may intentionally object to established case law in an effort to engage in a
re-evaluation of precedent, perhaps because the precedent has become irrelevant or
antiquated in the contemporary climate. According to the Majority, however, the CJD is
apparently empowered to reject established case law in every matter it decides, and the
(…continued)


                          [J-49A-2017] [MO: Saylor, C.J.] - 10
      While the CJD was established to play a unique role within our common law

judicial system, it is indisputably situated within that system.   It was created within

Article V, The Judiciary, of the Pennsylvania Constitution. Pursuant to Article V, jurists

(other than Supreme Court justices) are guaranteed an appeal to this Court, the highest

court in the judicial branch of government. See Majority Op. at 11 (citing Pa. Const. art.

V, § 18(c)(1)). If, as the Majority suggests, the citizens of Pennsylvania had intended to

create a court whose decisions need not defer to precedent – a court unlike any other in

our Unified Judicial System11 and shunning centuries of our common law tradition – they

would have had to expressly indicate their desire to do so. Yet nothing in Article V,

Section 18, expressly or otherwise, remotely suggests that the people of this

Commonwealth sought to create a court of unelected judges unconstrained by any

check on its discretion to remove elected judges from office. Given its place within our

common law system, the CJD is inherently bound to consider stare decisis to at least

the same degree as is every other Article V court. Accordingly, the CJD must follow its


(continued…)
CJD need not even explain how the circumstances have changed from one time period
to another. The CJD has now existed for twenty-four years -- a little more than two
decades -- not centuries. To the extent the CJD may legitimately rely on a changing
contemporary climate, it should be capable of explaining the change without much
difficulty.
11
    There is no question that the CJD’s placement in Article V of our Constitution
indicates its establishment as a court like all others “within the Unified Judicial System
over which this Court presides.” See In re Bruno, 101 A.3d at 696 (Saylor, C.J.,
concurring). Our Constitution could have been amended in a different fashion to
establish the CJD. Judges on the CJD are appointed in equal number by the Supreme
Court and the Governor. See Pa. Const. art. V, § 18(b)(1). Had the CJD been
envisioned as separate and apart from our judicial system and its common law tradition,
unconstrained by the inherent discretion-limiting doctrine of stare decisis, Article IV of
our Constitution, which pertains to the Executive branch, could have been amended to
accommodate this new body.



                          [J-49A-2017] [MO: Saylor, C.J.] - 11
own precedent in fashioning and imposing sanctions, and we must review the sanctions

it imposes in the same light. In my view, this Court’s proper, constitutional standard of

review empowers us to vacate a CJD sanction as not “lawful” if, in imposing it, the CJD

failed to adhere to stare decisis. In short, lawfulness requires the CJD to engage in a

thorough examination of its prior cases. See Pa. Const. art. V, § 18(c)(2). Stare decisis

does not require rigid application of prior cases and outcomes, but it does require the

announcement of the rationale for diverging from them.

      The Majority attempts to diminish the importance of stare decisis in the CJD

sanctioning context by reference to our criminal sentencing regime where, the Majority

suggests, judges have broad discretion to impose individualized punishment.          See

Majority Op. at 23-24 (suggesting that the Eighth Amendment to the United States

Constitution is the only limitation on such broad discretion).    The Majority’s line of

reasoning obfuscates an important distinction between criminal sentencing and CJD

sanctioning. In the context of criminal sentencing, a sentencing judge’s discretion is

significantly constrained in a variety of ways, and the Eighth Amendment is by no

means the only safeguard against judges handing down capricious punishments.

Notably, the sentence a judge may impose in a criminal case is expressly circumscribed

by statute. For each class of crime, the Sentencing Code sets forth a maximum term of

imprisonment or, in the case of financial penalties, the maximum dollar amount a

defendant may be fined. The court is not permitted to impose a sentence or fine that

exceeds this statutory maximum under any circumstances. See, e.g., Commonwealth

v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003) (explaining that sentences exceeding

statutory maximum are illegal). In addition to the statutory maximums, judges imposing




                          [J-49A-2017] [MO: Saylor, C.J.] - 12
criminal sentences must also consider the general standards set forth in the Sentencing

Code. See 42 Pa.C.S. § 9721(b). Specifically, the sentencing court is required to

fashion a sentence that is “consistent with the protection of the public, the gravity of the

offense as it relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” Id.

       Moreover, pursuant to the Sentencing Code, a judge must consider the

sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing. In

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), we explained that “consultation of

the guidelines will assist in avoiding excessive sentences and further the goal of the

guidelines, viz, increased uniformity, certainty, and fairness in sentencing.” Id. at 964.

The guidelines “bring greater rationality and consistency to sentences,” “eliminate

unwarranted disparity in sentencing," and “serve the laudatory role of aiding and

enhancing the judicial exercise of judgment regarding case-specific sentencing.” Id. at

962, 964. Thus, while the sentencing guidelines are advisory in nature, they “must be

respected and considered.” Id. at 965. When a sentencing court imposes a sentence

outside of the recommended guidelines range, it must set forth its reasons for the

deviation in a written statement. Id. at 962-63. A sentencing court’s failure to justify its

departure from the guidelines is grounds for resentencing. Id.

       None of the foregoing statutory limitations exist with respect to CJD sanctions. In

my view, this fact renders adherence to stare decisis by the CJD imperative because,

as demonstrated by the instant matter, no other mechanism exists to curb that court’s

discretion in sanctioning in any way. Stare decisis alone stands between the CJD’s




                           [J-49A-2017] [MO: Saylor, C.J.] - 13
intended status as a fair and rationale Article V court of record, on the one hand, and a

tribunal in the ilk of a discredited star chamber, on the other. See supra, n.7.

       Contrary to the Majority’s implication, Roca is not asking this Court to adopt a

strict requirement of proportionality in sanctioning. See Majority. Op. at 16-17. Instead,

her complaint is that the CJD’s published opinion is largely devoid of any analysis of

prior cases in which sanctions were imposed and makes no effort to explain its

deviation from prior case law or otherwise support the sanction imposed. 12 Specifically,

as observed at oral argument, the CJD ordered Roca’s permanent removal from the

bench without a studied review of twenty-three years’ worth of CJD decisions. Roca

argues that “there is a need for uniformity in judicial discipline,” and that the discipline

imposed cannot depend merely on “who is now serving the four year term on the CJD.”

Roca’s Brief at 59, 79. According to Roca, the fact that the term for a judge on the CJD

is four years and a judge cannot be reappointed for at least another year heightens the

“importance of prior precedent,” as “there cannot be a radical change in discipline”

every time there is a new court. Id. at 60. To prevent this result, precedent must be

reviewed and, when appropriate, followed.




12
    The CJD apparently believes it is bound to follow some of its precedent since it
considered the ten factors for the imposition of sanctions it announced in In re
Toczydlowski, 853 A.2d 24 (Pa. Ct. Jud. Disc. 2004). See In re Roca, 151 A.3d 739,
741-43 (Pa. Ct. Jud. Disc. 2016). In the instant matter, however, it gave no apparent
weight to the factors that weighed in Roca’s favor. Moreover, the non-exclusive factors
set forth in Toczydlowski are derived from a Washington Supreme Court case, In re
Deming, 736 P.2d 639 (Wash. 1987), wherein that court makes clear that it has de novo
review over sanctions recommended by the judicial qualifications commission. De novo
review by the Washington Supreme Court entails a hearing after which the highest
appellate court of the state makes its own determination of the law and facts. Id. at 642.



                           [J-49A-2017] [MO: Saylor, C.J.] - 14
      Roca directs this Court’s attention to numerous prior CJD cases imposing

sanctions less severe than permanent removal from the bench, while credibly

characterizing the misconduct in those cases as either more extreme or analogous to

the circumstances in this case. See id. at 63-79.13 Roca contends that her conduct is

no more culpable, and in some respects less culpable, than that of the judges in these

cases, and that, conversely, her sanction of permanent removal from office is far more

severe than the sanctions imposed in any of these cases. Id. To the extent Roca’s

comparisons may be viewed as overly broad, it bears noting that at least three of the

cases Roca cites involve a jurist who improperly rendered assistance (to himself, herself

or another) in a judicial matter. See, e.g., In re Dwight Shaner, 142 A.3d 1051 (Pa. Ct.

Jud. Disc. 2016) (senior magisterial district judge’s dismissal of a complaint against a

nephew of a former assistant district attorney resulted in sanction of reprimand and



13
    See, e.g., In re Singletary, 967 A.2d 1094 (Pa. Ct. Jud. Disc. 2009) (magisterial
district court judge’s statement that motorcycle gang contributors would benefit if he was
judge resulted in private reprimand); In re Willis Berry, 979 A.2d 991 (Pa. Ct. Jud. Disc.
2009) (common pleas court judge’s use of his judicial office and secretary to run his
private real estate business resulted in four month suspension); In re Hamilton, 932
A.2d 1030 (Pa. Ct. Jud. Disc. 2007) (drunken magisterial district court judge who
physically assaulted the police chief at a public golf outing suspended for nine months
with one year of probation); In re Wade Brown, 907 A.2d 684 (Pa. Ct. Jud. Disc. 2006)
(private reprimand for magisterial district court judge who made improper sexual
comments to his staff and litigants over lengthy time period); In re McCarthy, 828 A.2d
25 (Pa. Ct. Jud. Disc. 2003) (magisterial district judge’s consumption of alcohol when he
was supposed to be performing his judicial duties resulted in six-month suspension); In
re DeLeon, 967 A.2d 460 (Pa. Ct. Jud. Disc. 2009) (municipal court judge’s use of his
office to benefit a friend resulted in three-month suspension); In re Smith, 687 A.2d
1229 (Pa. Ct. Jud. Disc. 1996) (private reprimand for common pleas court judge who
neglected to decide sixty-one cases over a three year period); In re Daghir, 657 A.3d
1032 (Pa. Ct. Jud. Disc. 1995) (common pleas court judge’s acceptance of football
tickets from a litigant in divorce matter resulted in seven-day suspension); see also In re
Larsen, 616 A.2d 529 (Pa. 1992) (ex parte communication with common pleas court
judge resulted in private reprimand).



                          [J-49A-2017] [MO: Saylor, C.J.] - 15
censure, and an order that he henceforth shall not be eligible to accept any

assignments as a senior magisterial district judge); In re Kelly Ballentine, 86 A.3d 958

(Pa. Ct. Jud. Disc. 2013) (magisterial district court judge’s dismissal of three of her own

traffic court citations resulted in fifteen month suspension without pay, nineteen months

of probation and a $18,296 fine); In re Arnold, 51 A.3d 931 (Pa. Ct. Jud. Disc. 2012)

(magisterial district judge’s withholding of her son’s citation and failure to be forthright

prejudiced administration of justice and resulted in one month suspension without pay).

       Given the similarities to the case at bar, the CJD, in keeping with the discretion-

limiting doctrine of stare decisis, should be expected, at the very least, to consider its

decisions in these three cases when rendering its sanction decision as to Roca. The

facial similarities in the facts of these cases suggest that outcomes should be similar.

Since they are not, the sanctioned jurists, the rest of the judiciary and the public should

know why. Such required analytical reporting by the CJD is the only restraint on its

discretion. Otherwise, if it so chooses, the CJD can punish foes and reward friends with

impunity.

       The Majority expresses a degree of sympathy for Roca’s position, but posits that

“it is difficult to draw equivalence among distinct cases of judicial misconduct, as the

factors involved in each instance will naturally vary.” Majority Op. at 18. This statement

is true, but entirely irrelevant to the question of the application of stare decisis. It is

axiomatic that no two cases are perfectly identical, but the other courts of this

Commonwealth, including this Court, do not as a result abandon all efforts to follow

stare decisis.   That it may be challenging for the CJD to analyze, analogize or




                           [J-49A-2017] [MO: Saylor, C.J.] - 16
distinguish one case by reference to prior cases does not relieve that court from its

inherent obligation to do so.14

       Having exempted the CJD from the doctrine of stare decisis, the Majority

nevertheless posits that the “warranted-by-the-record prerequisite” of Article V, Section

18(b)(5) provides a safeguard against “an unreasonably harsh penalty completely out of

proportion to the misconduct involved.” Majority Op. at 21. In addition to the patent

inconsistency with the Majority’s holding that sanctions need not be proportional, in my




14
    Notably, the Majority cites to cases from our sister state courts for the proposition
that “past judicial misconduct cases … are of limited usefulness,” In re Crawford, 629
N.W.2d 1, 11 (Wis. 2001), and “proportionality review based on discipline imposed in
other cases … is neither required nor determinative,” Broadman v. Comm’n on Judicial
Performance, 959 P.2d 715, 734 (Cal. 1998). See Majority Op. at 19. The cases relied
on by the Majority are inapposite because the systems for judicial discipline in these
states differ in important respects. In Wisconsin, the state Supreme Court imposes
discipline upon judges on a de novo basis, although the recommendation of that state’s
judicial commission panel is entitled to deference. In re Crawford, 629 N.W.2d at 10.
Similarly, the California Supreme Court has the power to increase or decrease a
sanction after independently reviewing a disciplinary matter. The highest court makes
its own findings of fact and decides as a question of law whether a sanction is
warranted. Broadman, 959 P.2d at 734-35 (affirming a sanction of public censure after
explaining that “a level of discipline may be warranted either by the existence of a
pattern of misconduct or by the seriousness of a single incident”).

Moreover, in In re Crawford, the Wisconsin Supreme Court noted that while “each case
is different, and is considered on the basis of its own facts[,] [t]his individualized
approach to discipline … is guided by some general principles.” In re Crawford, 629
N.W.2d at 10. Citing precedent, that Court characterized suspension and removal from
office as “drastic measures, generally reserved for very serious or repeated violations of
the Code. Factors considered in establishing the length of a suspension, either in
aggravation or in mitigation, have included a history of prior judicial misconduct, and the
presence of a remorseful and cooperative attitude.” Id. In significant contrast, the CJD
has not developed any cogent standard against which the misconduct of Pennsylvania
jurists may be evaluated and judged, or any set of authoritative factors on which the
public and Pennsylvania jurists could know and understand that appropriate sanctions
will be imposed.



                           [J-49A-2017] [MO: Saylor, C.J.] - 17
view, and as evidenced by the instant matter, this is no safeguard at all. Here, the CJD

noted,

               It cannot be reasonably disputed that Judge Roca, at first,
               only requested advice from former Judge Waters, but then
               the conversation clearly fell into an agreement to obtain ex
               parte contacts with the judge handling her son’s case.
               However, rather than refuse to participate in this scheme,
               she fully complied and willfully participated in the scheme.

In re Roca, 151 A.3d 739, 743 (Pa. Ct. Jud. Disc. 2016). Concluding that Roca,

therefore, had acted “in derogation of the judicial canons” and had engaged in “willful

misconduct” – findings that are common in almost every disciplinary case at the

sanctions stage – the CJD ordered Roca’s permanent removal from office.

         The record in this case makes clear that Roca did not “fix” or control the outcome

of any case, and that her misconduct was limited to assisting her son in his efforts to

open a default judgment to obtain a hearing on his tax case (in which she had no other

involvement). Id. at 62. The city’s case against him was not dismissed; in fact, he paid

a negotiated tax settlement of $477.00. Majority Op. at 4 (citing Stipulation, ¶¶ 30-39).

Moreover, Roca expressed a deeply felt remorse regarding her involvement in the

process. As Roca urges, numerous individuals testified as to her excellent character,

her “workhorse” ethic, her respect for everyone in the courtroom, and her lack of any

prior allegations or incidents of misconduct. Roca’s Brief at 63-64.

         Nonetheless, the Majority concludes, “it was not unreasonable for the CJD to

conclude that Appellant’s removal from the bench was an appropriate sanction in light of

all of the facts of the case.” Majority Op. at 22. Here, three jurists connected by

circumstance – a convicted felon, a repeat case fixer and a one-time violator for the




                            [J-49A-2017] [MO: Saylor, C.J.] - 18
benefit of her son – were all removed from office.15 I am unable to discern how the

“warranted by the record” prerequisite safeguards against “an unreasonably harsh

penalty completely out of proportion to the misconduct involved.” See id. at 21. As

discussed supra, absent any of the constraints on discretion imposed by stare decisis,

and as evidenced by the circumstances of this case, the CJD is free to determine that

any set of facts that amounts to sanctionable misconduct warrants the most extreme

disciplinary consequence: removal from office of an elected official.

      In connection with its “warranted by the record” analysis, the Majority posits that

the United States Constitution requires only “inherent-proportionality” review in

noncapital criminal sentencing decisions, pursuant to the Eighth Amendment’s

prohibition on cruel and unusual punishment, but does not, absent “gross

disproportionality,” require comparison to other sentences.      Id. at 23 (citing federal

15
    It would appear that Roca’s removal sanction resulted, in large part, from guilt by
association with former Philadelphia Municipal Court Judge Joseph C. Waters
(“Waters”) and former Municipal Court Judge Dawn Segal (“Segal”), who themselves
were involved in a far broader range of judicial misconduct. As noted by the Majority,
Waters resigned from office and pled guilty to federal corruption charges as a result of
an FBI investigation into his misconduct. Separately, the CJD removed Segal from
office. Majority Op. at 1 n.2. In contrast to Roca’s isolated ex parte communication with
Waters regarding her son’s tax case, Segal was found to have “engaged in repeated ex
parte communications with Waters about three cases, Houdini v. Donegal, City of
Philadelphia v. Rexach, and Commonwealth v. Khoury. With regard to the Khoury
case, the record demonstrates that [Segal] made repeated improper ex parte contacts,
and later gave assurances to Waters that she would do his bidding, i.e., that these
communications were used by the Respondent in her deliberations about these cases.”
In re Segal, 151 A.3d 734, 735 (Pa. Ct. Jud. Disc. 2016). Yet, when setting forth Roca’s
sanction, the CJD failed entirely to acknowledge that her misconduct, while culpable,
was different in degree and kind than Segal’s. Instead, the CJD employed identical
language in drawing its disciplinary conclusions regarding both Roca and Segal: “As we
have said in more detail in prior decisions, when it comes to corrupt acts and the
derogation of a fair and just judicial process, a judge must have ‘the willingness to stand
up for what [is] right and buck a corrupt tide.’” See id. at 739; see also In re Roca, 151
A.3d at 743.



                          [J-49A-2017] [MO: Saylor, C.J.] - 19
cases and one Ohio state court case). Arguing for a similarly limited standard of review

as to CJD sanctions, the Majority characterizes the CJD’s “warranted by the record”

requirement as that tribunal’s equivalent to an Eighth Amendment “inherent

proportionality” requirement, concluding that we may review for gross disproportionality

between the judicial misconduct and the sanction imposed, but need not grapple with

precedent in doing so. Id. at 23 n.15; see also id. at 18 n.13.

       The previously discussed distinctions between our statutorily prescribed criminal

sentencing regime and the judicial sanctioning regime set forth in Article V, Section 18

render the Majority’s Eighth Amendment analogy entirely inapposite.          As an initial

matter, when evaluating proportionality challenges to noncapital sentences pursuant to

the Eighth Amendment, we employ the three-factor test set forth in Solem v. Helm, 463

U.S. 277, 290-92 (1983) (providing that the court must inquire into the “the gravity of the

offense and the harshness of the penalty”; “the sentences imposed on other criminals in

the same jurisdiction”; and “the sentences imposed for commission of the same crime in

other jurisdictions”). The threshold inquiry asks whether a comparison between “the

crime committed and the sentence imposed leads to an inference of gross

disproportionality.” Ewing v California, 538 U.S. 11, 30 (2003). If no such inference

arises, it is unnecessary to conduct a comparative analysis of sentences imposed on

other criminals or in other jurisdictions. See id.; see also Commonwealth v. Baker, 78

A.3d 1044, 1053 (Pa. 2013) (determining that “we need not reach the second and third

prongs of the test for proportionality review under the Eighth Amendment” where “a

threshold comparison of the gravity of a second conviction of possessing and viewing




                           [J-49A-2017] [MO: Saylor, C.J.] - 20
child pornography against the imposition of a mandatory sentence of at least 25 years’

imprisonment does not lead to an inference of gross disproportionality”).

       As the Third Circuit has aptly observed, the “narrow proportionality” test set forth

in Solem is premised upon a principle of substantial deference “to the broad authority

that legislatures necessarily possess in determining the types and limits of punishments

for crimes.” United States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir. 1986) (quoting

Solem, 463 U.S. at 290). It is this principle that “restrains us from an extended analysis

of proportionality save in rare cases.” Id. (citing Solem, 463 U.S. at 290 n.16); see also

Commonwealth v. Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014) (recognizing, before

conducting a Solem analysis, that “acts passed by the General Assembly are strongly

presumed to be constitutional” and “that the legislature has the exclusive power to

pronounce which acts are crimes, to define crimes, and to fix the punishment for all

crimes”) (internal citations and quotations omitted).

       In matters of judicial discipline, however, the CJD is not constrained by any

principle of deference to the legislature because, as discussed supra, no statutes exist

to regulate judicial sanctions.         Accordingly,    the premise underlying narrow

proportionality review in the Eighth Amendment context is inapplicable as to our review

of CJD sanctions. Stare decisis necessarily fills the gap as a curb to limit unbounded

discretion in imposing sanctions.16



16
    Roca has not raised an Eighth Amendment challenge and the Majority, although
adopting the rubric of such a challenge, does not embrace following the three-part test
for gross disproportionality. If it had done so, pursuant to Solem, and absent the ability
to compare legislative determinations as to the gravity of distinct forms of misconduct,
proportionality review of CJD sanctions under the Eighth Amendment would necessarily
require comparison to CJD precedent.
(…continued)


                           [J-49A-2017] [MO: Saylor, C.J.] - 21
      Our treatment of attorney misconduct cases reflects a similar principle. In the

absence of statutory limitations with regard to sanctioning attorneys, this Court employs

stare decisis in every attorney discipline case to determine appropriate levels of

discipline. As we have explained, “[t]he final discipline imposed [on an attorney] is

determined on a case-by-case basis on the totality of facts presented. Nevertheless,

despite the fact-intensive nature of the endeavor, we strive for consistency so that

similar misconduct is not punished in radically different ways.” Office of

Disciplinary Counsel v. Cappuccio, 48 A.3d 1231, 1238 (Pa. 2012) (internal citations

and quotations omitted) (emphasis added).

      In Cappuccio, for example, we grappled with whether to impose a sanction of

disbarment (which is “properly reserved for the most egregious matters”) as opposed to

“the next most serious sanction, a five-year suspension.”        Id. at 1239.   Noting the

significance of attorney Cappuccio’s position as a public official at the time he

committed the misconduct in question, we conducted a lengthy analysis of his case by


(continued…)

The Majority’s commentary regarding comparative proportionality review for Eighth
Amendment purposes in the context of death penalty cases further highlights that
discretion must be cabined. While Eighth Amendment comparative proportionality
review is not constitutionally required, many states introduced it by statute “in an effort
to limit jury discretion and avoid arbitrary and inconsistent results” following the United
States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972)
(determining that previous capital sentencing statutes were unconstitutional because
they vested “unguided sentencing discretion in juries and trial judges”). See Pulley v.
Harris, 465 U.S. 37, 44 (1984). In Pulley, the high Court confirmed that statutes not
requiring comparative proportionality review may nonetheless satisfy the concerns
expressed in Furman if they are “carefully drafted … [to] ensure[] that the sentencing
authority be given adequate information … and standards to guide its use of that
information.” Id. at 46 (quoting Gregg v. Georgia, 428 U.S. 153, 194 (1976)). The
bottom line for Eighth Amendment purposes is that a sentencing authority’s discretion
must be circumscribed in some meaningful way.



                          [J-49A-2017] [MO: Saylor, C.J.] - 22
reference to our disciplinary decisions in more than five prior cases, comparing and

contrasting the nature of the respondent’s misconduct to the misconduct in those past

matters.   See id. at 1239-41. Ultimately, we honed in on our decision in Office of

Disciplinary Counsel v. Christie, 639 A.2d 782 (Pa. 2004), concluding that, despite the

similarities between Cappuccio’s misconduct and the facts in Christie, the former should

be disbarred:

                [Attorney Cappuccio] is similarly situated to attorney Christie
                in terms of the nature of his misconduct, his lack of
                disciplinary history and prior criminal record, his cooperation,
                character testimony, expressions of remorse, and efforts at
                rehabilitation. However, there are two critical distinctions
                supporting disbarment. First, [Cappuccio] did not present
                expert testimony meeting the Braun standard, and therefore,
                is not entitled to the type of consideration that was given to
                attorney Christie; given that Christie received the most
                severe sanction short of disbarment, the distinction is
                significant. Second, as discussed, [Cappuccio]'s position as
                a Chief Deputy District Attorney aggravates the misconduct,
                particularly in light of the facts here. At the time [Cappuccio]
                was engaging in his ongoing criminal conduct by
                endangering the welfare of minors and corrupting the
                morals, his public persona was that of a law enforcement
                figure in the county, prosecuting members of the public for
                similar crimes. In our view, any sanction short of disbarment
                in these circumstances threatens the integrity of the legal
                system, undermines our very serious duty to protect the
                public, and fails to give appropriate weight to [Cappuccio]’s
                status as a public official. Accordingly, given these two
                distinctions, which indicate that a more severe sanction than
                that imposed in Christie is warranted in this case, we
                conclude that disbarment is the appropriate sanction.

Id. at 1240–41.

      The foregoing is an example of the sort of loyalty to stare decisis I would require

the CJD to demonstrate when determining how to sanction jurists. There is no

constitutional basis for a discrepancy and it makes no sense that attorneys in this

Commonwealth are entitled to the degree of fairness and predictability that flows from


                             [J-49A-2017] [MO: Saylor, C.J.] - 23
adherence to precedent, while our elected judges are, as the Majority holds, stripped

entirely of that right.

       Again, what is “lawful” is that which is allowed by the law and there are myriad

sources of the law. As one example, the Majority’s breathtakingly narrow definition of

our standard of review is patently violative of the United States Constitution.        For

example, if an available sanction were challenged as violative of the Equal Protection

clause of the United States Constitution, see U.S. Const. amend. XIV, § 1, or on due

process grounds, see id., we would be obligated to review that challenge despite the

availability of the sanction.   See Driscoll v. Corbett, 69 A.3d 197, 209 (Pa. 2013)

(explaining that state constitutions cannot eliminate rights otherwise guaranteed under

the United States Constitution). It is anathema to notions of due process and basic

fairness that this Court’s standard of review would prohibit us from examining the

constitutionality of a CJD decision merely because the sanction imposed falls into a

category listed in subsection 18(b)(5). The Majority apparently agrees with me that it is

beyond obvious that a lawful sanction requires that it comport with the United States

Constitution, see Majority Op. at 17 n.11, but it fails to recognize that the definition of

“lawful” must therefore be considerably broader than the one it embraces here, or that

its definition of “lawful” necessarily precludes the kind of review for constitutionality I

discuss herein.

       The Majority’s reliance on the absence of an express constitutional mandate to

follow stare decisis in Article V, Section 18, see id. at 17, is meaningless. As noted, the

CJD’s obligation to adhere to stare decisis is inherent in its designation as an Article V

court of record in Pennsylvania, where all courts of record, including this one, apply




                          [J-49A-2017] [MO: Saylor, C.J.] - 24
stare decisis as a matter of course. No special language is necessary to understand

that the CJD must follow its own precedent. Notably, there is no express constitutional

mandate for this Court or any other in the unified judicial system to follow stare decisis,

but we do so regularly and without exception. Article V, Section 18 also does not

mandate that the CJD follow the United States Constitution, but the Majority agrees that

it must. See Majority Op. at 17 n.11. Nor does Article V, Section 18 mandate that the

CJD is limited by other provisions of the Pennsylvania Constitution, but we know that it

is. See supra n.4 (discussing In re Melograne, 812 A.2d 1164, 1169 (Pa. 2002)). Like

these concepts, adherence to the doctrine of stare decisis is so fundamental to our

understanding of the function of courts that inclusion is automatic in the creation of a

common law court.

       While purporting to uphold “our judicial system … as the symbol of fairness and

justice, and of equal protection dispensed to every citizen,” In re Roca, 151 A.3d at 741,

the CJD’s decision to remove Roca from her elected office, without even a nod to the

substantial body of countervailing precedent, compromises these very values.           The

facial lack of consistency in the imposition of sanctions demonstrated by the prior CJD

cases chronicled by Roca in her brief, see supra, pp. 15-16, does grave damage to any

notion that the CJD itself is a symbol of fairness and justice dispensed to every citizen,

as judges too are citizens of this Commonwealth. Absent fidelity to stare decisis, the

CJD may arbitrarily sanction a jurist and, without the availability of meaningful appellate

review, this Court has no ability to reverse it. At a minimum, it must be this Court’s

function, when reviewing a CJD sanctions ruling, to confirm that in reaching its decision,

the lower court has engaged in a lawful judicial process which by necessity involves the




                          [J-49A-2017] [MO: Saylor, C.J.] - 25
application of stare decisis. In the instant matter, the CJD removed an elected judicial

official from office. It imposed this sanction without any meaningful discussion of prior

precedent. As such, the sanction imposed in this case is ipso facto unlawful. I would

vacate the order imposing sanctions and remand for an opinion in which the CJD

thoroughly examines its precedent before imposing a sanction in this case (and would

require the same in every case it adjudicates). Accordingly, I dissent.




                          [J-49A-2017] [MO: Saylor, C.J.] - 26
