                           [J-59A-2013] [MO: Castille, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT



IN RE: MAGISTERIAL DISTRICT      :             No. 84 MM 2013
JUDGE 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. JUSTICE McCAFFERY                             OPINION FILED: October 1, 2014


       I concur in the result reached by the majority that both this Court and the Court of

Judicial Discipline (“CJD”) have constitutional authority to order sanction of a jurist,

although this Court should reserve the exercise of that authority for truly extraordinary

circumstances. I further agree that, in the event that incompatible orders are filed by this

Court and the CJD, the order of this Court takes precedence. In my view, this result

follows directly from the plain text of the relevant constitutional provisions regarding this

Court, the Judicial Conduct Board (“Board”) and the CJD, as well as the well-established

understanding of the broad scope of this Court’s King’s Bench authority, as set forth in

this Court’s precedential decisions.

       As an initial matter, I note that members of the judiciary are vulnerable to

accusations of wrongdoing by disaffected litigants that are grounded in nothing more than

dissatisfaction with the resolution of a case. In particular, those judges who serve on the

front-line trial courts are open to false accusations by vindictive litigants, given the large

number of cases adjudicated in this Commonwealth and the ease with which a complaint

may be lodged with various investigative authorities. With this vulnerability in mind, I
would urge extreme caution in the imposition of the sanction of suspension without pay

for an accused jurist.    Such a sanction carries the potential for severe, irreparable

economic harm to the jurist, even if he or she is subsequently vindicated by the

investigatory authority or in a criminal proceeding. For this reason, I favor as the norm

the process set forth in the Pennsylvania Constitution by which a full investigation of any

alleged judicial misconduct takes place.        The Judicial Conduct Board is the body

invested by the Pennsylvania Constitution with the specific authority to appoint a staff and


              receive and investigate complaints regarding judicial conduct
              filed by individuals or initiated by the board; issue subpoenas
              to compel testimony under oath of witnesses, including the
              subject of the investigation, and to compel the production of
              documents, books, accounts and other records relevant to the
              investigation; determine whether there is probable cause to
              file formal charges against a justice, judge or justice of the
              peace for conduct proscribed by this section; and present the
              case in support of the charges before the Court of Judicial
              Discipline.


Pa.Con., Art. V, § 18(a)(7).

       Therefore, while I agree that this Court and the CJD each has the authority to order

sanction of a jurist, I also fully support the conclusion that it is only in truly extraordinary

circumstances that this Court should exercise its authority.            I believe that these

conclusions do not constitute a departure from this Court’s jurisprudence, but rather are

firmly supported by the historical context and precedential decisions discussed in the

majority opinion, and more succinctly below.

       In this Court is “reposed the supreme judicial power of the Commonwealth,” and as

part of the supreme judicial power, this Court is required to “exercise general supervisory

and administrative authority over all the courts” in the Commonwealth. Pa. Con., Art. V,

§§ 2 and 10(a), respectively. As we have explained, authority over the lower courts was


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vested in this Court from its very creation, as a part of the conferral of King’s Bench

powers to this Court under the Act of May 22, 1722, 1 Sm.L. 131, Section XIII. See In re

Franciscus, 369 A.2d 1190, 1192 (Pa. 1977); Commonwealth v. Onda, 103 A.2d 90, 91

(Pa. 1954). The King’s Bench power to supervise lower courts is not only longstanding,

but also broad and extensive: “Inherent in the Court of King’s Bench was the power of

general superintendency over inferior tribunals, a power which was of ancient inception

and recognized by the common law from its very beginnings. … The power of controlling

the action of inferior courts is so general and comprehensive that it has never been limited

by prescribed forms of procedure… .”            Franciscus, supra at 1192-93 (quoting

Carpentertown Coal & Coke Co. v. Laird, 61 A.2d 426, 428-29 (Pa. 1948)). The 1968

amendments to the Pennsylvania Constitution included a reiteration of the authority of

this Court to exercise King’s Bench and other powers. See Pa. Const. Sched. Art.V, § 1

(“The Supreme Court shall exercise all the powers … now vested in the present Supreme

Court… .”); see also In re Avellino, 690 A.2d 1138, 1140 (Pa. 1997); 42 Pa.C.S. § 502.

       In Franciscus, supra at 1191, this Court relied on its constitutionally derived

supervisory authority to suspend a justice of the peace from his office following his federal

indictment related to his official duties. Contending that this Court had overstepped its

authority, the jurist argued that he could only be suspended pursuant to a

recommendation by the then-extant Judicial Inquiry and Review Board, which, pursuant

to the 1968 version of Art. V, § 18 of the Pennsylvania Constitution, was granted the

power to investigate possible judicial impropriety. This Court rejected the jurist’s view.

We recognized that the 1968 version of Art. V, § 18 established a procedure by which

jurists may be removed or subjected to disciplinary proceedings, but we concluded that

the establishment of that procedure did not in any sense “revoke or diminish the inherent




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authority of this Court to exercise its superintendency powers over the lower judiciary.”

Franciscus, supra at 1191-92 (citing Pa. Con. Art. V, §§ 1 and 10(a))

       Thus, Franciscus stands for the proposition that, as part of its supervisory power

over the lower judiciary, this Court has the authority to suspend a jurist indicted for

criminal activity. We explained that the Court’s suspension of the jurist was not meted

out as a form of punishment, but rather was necessary to ensure not just the fact, but also

the appearance of fairness and probity in the judiciary.

              We are constrained to exercise our powers of supervision
              under the circumstances present here in order to guard and
              protect the just rights and independence of the bar, the dignity
              and authority of the court, and the safety and protection of the
              public.

Id. at 1195 (internal quotation marks and citation omitted).
       In 1993, Art. V, § 18 of the Pennsylvania Constitution was extensively amended to

create a Judicial Conduct Board to “receive and investigate complaints regarding judicial

conduct filed by individuals or initiated by the board,” and a Court of Judicial Discipline

which, upon the filing of formal charges by the Board, was to “promptly schedule a

hearing or hearings to determine whether a sanction should be imposed” against a jurist.

Pa. Con., Art. V, § 18(a)(7) and (b)(5).

       Four years later, in In re Avellino, 690 A.2d 1138 (Pa. 1997) (“Avellino I”), this

Court considered the effect of the 1993 amendments to Art. V, § 18 on our supervisory

authority over all courts, as set forth in Art. V, § 10(a). Avellino, then a judge in the court

of common pleas, had refused to comply with his assignment to preside over certain

criminal trials. We directed him to show cause why he should not comply with the

assignment and ordered him to comply. Avellino I, supra at 1139. Avellino argued that

we had no jurisdiction in the dispute because the 1993 amendments to Art. V, § 18

“manifest an intent to limit [this Court’s] authority to impose discipline de novo.” Avellino


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I, supra at 1143. We rejected this argument, citing our holding in Franciscus, and

explaining as follows:


              The 1993 amendments [ ] altered the mechanism for
              investigating and adjudicating charges of judicial misconduct
              by abolishing the Judicial Inquiry and Review Board and
              creating the Judicial Conduct Board and the Court of Judicial
              Discipline. Given our clear holding sixteen years earlier in
              Franciscus that our supervisory power was neither revoked
              nor diminished by Section 18, had the people intended to
              revoke or diminish that power in amending Section 18[,] the
              amendment would have explicitly so provided. Nowhere in
              the amended Section is such an intention expressed or even
              implied.


Avellino I, supra at 1143 (footnote omitted).

       Furthermore, we made expressly clear that if this Court’s supervisory authority is to

be effective, then, under circumstances such as those presented in Avellino I, it is

necessary for the Court to be able to consider the imposition of sanctions. Id. at 1144.

We expanded on this concept in In re Avellino, 690 A.2d 1144 (Pa. 1997) (“Avellino II”),

wherein Avellino argued that, while this Court’s power to supervise the lower courts

permitted the imposition of remedial measures, it did not permit the imposition of punitive

measures, as the latter were exclusively within the authority of the CJD. We rejected this

argument, concluding that Avellino’s actions “unquestionably undermined the public

perception of the judiciary … [and his] refusal to comply with an assignment of an

administrative judge, [and] to obey an order of this Court, is in complete derogation of

respect for the law and the integrity of the judiciary.”      Avellino II, supra at 1145.




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Accordingly, we ordered the suspension of Avellino for a period of three months without

pay. Id. at 1146.1

       Here, Petitioners make essentially the same arguments that we rejected in

Avellino I, Avellino II, and Franciscus. I believe those precedents were correctly decided

and form a solid grounding for our decision here. Specifically, under the holdings of

Avellino I, Avellino II, and Franciscus, there is no merit to Petitioners’ assertion that this

Court’s historic and constitutionally derived supervisory and administrative authority over

the lower courts was curtailed by the 1993 amendments to Art. V, § 18 in such manner as

to eliminate any disciplinary authority.2

       Looking to the specifics of Judge Bruno’s case and mindful of the need of this

Court to exercise extreme caution in ordering a jurist’s suspension from service without

pay, I believe that this Court acted properly in its July 11, 2013 order directing the

recommencement of payment of Judge Bruno’s salary pending final disposition of the

matter. Our order entered August 28, 2014, vacating the February 1, 2013 order, after


1 A factual situation similar to Avellino was presented to this Court in In re: McFalls, 795
A.2d 367 (Pa. 2002). McFalls, also a judge in the court of common pleas, failed to
comply with his judicial assignments, resulting in this Court’s order directing him to show
cause for his failure to comply and as to why he should not be subject to interim
suspension. While McFalls did not dispute the authority of this Court to take such action,
he did argue that it would be preferable for this Court to decline to act and defer to the
Judicial Conduct Board.         We rejected McFalls’s position, imposed a thirty-day
suspension without pay as a “proper response” to his defiance, and referred the matter to
the Judicial Conduct Board.

2 Petitioners attempt to distinguish the facts of the instant cases from our precedents,
arguing that Franciscus and Avellino I and Avellino II were supervisory or administrative
matters and the instant case is a disciplinary matter.            These arguments are
unconvincing, and would lead to endless haggling in future cases as to whether the issue
presented was supervisory/administrative or disciplinary. Furthermore, Petitioners
seem to ignore the fact that this Court imposed suspensions on both jurists in Franciscus
and Avellino II.



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Judge Bruno’s outright acquittal of all federal charges, clears the way for Judge Bruno to

resume his place on the bench of Chester County.

         Finally, I observe that our retention of King’s Bench jurisdiction over the

supervision of jurists does not guarantee that this Court will always recognize when there

are truly extraordinary circumstances that present the need for immediate action to

ensure the administration of justice. Specifically, my appraisal of this Court’s response

time to the Luzerne County crisis and our reaction to the conduct of then-Judges

Ciavarella and Conahan differs from that of the majority.

         An application for the exercise of King’s Bench power was filed on April 29, 2008,

by the Juvenile Law Center on behalf of Luzerne County juveniles involved in delinquency

proceedings who were unrepresented by counsel. In re J.V.R., No. 81 MM 2008. The

application alleged that these juveniles had been improperly denied their right to counsel

and, as a consequence, had been unjustly sent to out-of-home placements. It is this

application that first “called into question the legitimacy of adjudications of delinquency

and other dispositions,” not the subsequent criminal indictments. See Majority Opinion

at 56.     Within two weeks of the April 2008 application, briefs were filed by the

Pennsylvania Department of Public Welfare and the Office of the Attorney General in

support of the application for the exercise of King’s Bench jurisdiction.3

         The Department of Public Welfare described the disparity between the rate at

which juveniles were unrepresented by counsel in Luzerne County and that of other

counties in Pennsylvania as “so dramatic as to require an inference of a systematic

deprivation of the constitutional rights of accused juveniles by the Luzerne County Court

of Common Pleas.” Brief of Department of Public Welfare at 3, In re J.V.R., No. 81 MM


3 By the end of May 2008, Luzerne County and Judge Ciavarella had filed briefs in
opposition to the application.



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2008, filed May 12, 2008.     The Attorney General urged this Court to consider the

allegations because they raised “serious questions about the fairness and integrity of

juvenile proceedings in Luzerne County.” Brief of Office of the Attorney General at 3, In

re J.V.R., No. 81 MM 2008, filed May 15, 2008. Thus, “we could have perceived” from

these pleadings “the criminal conduct in Luzerne County,” which potential criminal

misconduct was not “only made apparent by the filing of federal charges.” See Majority

Opinion at 59 n.21 (emphases supplied).

      Despite the gravity of the allegations and the support of the Commonwealth’s chief

legal and law enforcement officer, this Court took no action until January 8, 2009, when it

entered an order denying the application for the exercise of King’s Bench power. On

January 30, 2009, the Juvenile Law Center filed a motion for reconsideration based upon

the federal indictments of Judges Ciavarella and Conahan on January 26, 2009. On

February 2nd, this Court vacated its January 8th order, pursuant to its constitutional

authority under Article V § 10 (general supervisory and administrative authority) and

statutory authority under 42 Pa.C.S. § 502 (King’s Bench). Finally, on February 11,

2009, some nine months after the first application for the exercise of King’s Bench power

had been filed, this Court exercised plenary jurisdiction over the matter “in light of the

recent revelation of federal criminal charges and pending guilty plea agreements” of

Judges Ciavarella and Conahan, and appointed a special master. In re J.V.R., No. 81

MM 2008, Order dated 2/11/09. That is, only upon the issuance of federal indictments

was this Court moved to exercise its “flexible and transcendent” authority. Majority

Opinion at 56, 61. This chronology causes me to conclude that this Court did not

“innovate a swift process” addressing the allegations of denial of the right to counsel and

the improper imposition of out-of-home placements. Majority Opinion at 59, 56, 61.

Notwithstanding our slow response to the crisis in Luzerne County, ultimately this Court




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properly exercised its King’s Bench power in response to the presentation of truly

extraordinary circumstances, addressed the need to restore propriety to the

administration of juvenile justice in Luzerne County, and effected a wide range of

remedies to do so.




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