                                 [J-59A-2013]
                   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 BAER                                OPINION FILED: October 1, 2014
       I join the majority opinion in its entirety, and write separately to set forth my

concerns regarding the evolution of this case and to offer insight concerning how this

Court should exercise its discretion in future cases involving a sitting jurist accused of

misconduct.

       As noted by the majority, Judge Bruno was indicted on January 29, 2013, in the

United States District Court for the Eastern District of Pennsylvania based on alleged

impropriety in carrying out his obligations in the Philadelphia Traffic Court. He was

charged with one count of conspiracy, one count of wire fraud, and one count of mail

fraud. On January 30, 2013, the Judicial Conduct Board (“JCB”) filed with the Court of

Judicial Discipline (“CJD”) a petition seeking Judge Bruno’s interim suspension without

pay. Unaware that the CJD had been presented with the JCB’s petition the day before,

this Court entered an interim order on February 1, 2013, suspending Judge Bruno without

pay, pending further order of this Court. We acted with confidence that the federal

indictment set forth a prima facie case in accordance with its articulated facts, although,

notably, we did not afford Judge Bruno an opportunity to respond to the indictment or

otherwise present his “side of the story.”
       What complicated this matter was that after we entered the interim order

suspending Judge Bruno without pay, the CJD proceeded to adjudicate the JCB’s

previously filed petition for his interim suspension. Following an evidentiary hearing and

argument by the parties, the CJD determined that the indictment may not be as strong as

its facial appearance, and that the appropriate sanction was to enter an order of

temporary suspension, without elimination of Judge Bruno’s salary. Accordingly, the

CJD issued an order suspending Judge Bruno with pay, in direct contradiction to our

order suspending him without pay. Judge Bruno subsequently filed a petition in this

Court, requesting that we vacate our order suspending him without pay. This Court

ordered briefing and oral argument on the merits of his petition; but, by interim order dated

July 11, 2013, retroactively reinstated Judge Bruno’s pay, pending final disposition of his

petition. On July 23, 2014, Judge Bruno was acquitted of all charges. Thus, on August

28, 2014, we finally vacated our order of February 1, 2013, suspending Judge Bruno

without pay, and indicated that an opinion would follow.

        In that thorough and well-reasoned opinion, the majority holds that this Court

possesses the authority at King’s Bench to order the interim suspension without pay of

sitting jurists, such as Judge Bruno. It rejects Judge Bruno’s contention that this Court’s

supervisory authority over “the administration of all courts and supervision of all officers of

the Judicial Branch,” as granted by Article V, Section 10(c) of the Pennsylvania

Constitution, and as invoked in this case pursuant to our King’s Bench authority, was

either rescinded or diminished by the adoption of Article V, Section 18, which created the

Judicial Conduct Board (“JCB”) and the CJD, and gave those tribunals authority to

prosecute and adjudicate claims of judicial misconduct.

       The majority further acknowledges, however, that our exercise of King’s Bench

authority is discretionary and should be employed in judicial misconduct cases only in




                                      [J-59A-2013] - 2
extraordinary circumstances, with the CJD addressing routine matters within that court’s

Article V, Section 18(d)(2) authority.1 The majority declares that “[a]cting within their

respective authorities and jurisdictions, both the Supreme Court and the CJD have

authority to issue orders of interim suspension and to impose sanctions upon jurists. To

the extent that any such orders ultimately or necessarily conflict, the order of the Supreme

Court is ‘supreme’ and controlling.” Slip op at 3.

        The majority’s recognition that both this Court and the CJD possess authority to

impose an interim order suspending a jurist, while jurisprudentially sound, raises its own

complications. As the circumstances of this matter illustrate, the fact that this Court has

authority to enter an order does not necessarily mean that we should. Notably, the

proceeding before the CJD encompassed an evidentiary hearing and the presentation of

oral argument on the propriety of suspending Judge Bruno without pay, while this Court

acted without affording him an opportunity to respond to the federal indictment.2


1   Article V, Section 18(d)(2) of the Pennsylvania Constitution provides:

        Prior to a hearing, the [Court of Judicial Discipline] may issue an interim
        order directing the suspension, with or without pay, of any justice, judge or
        justice of the peace 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. An interim order under this paragraph shall
        not be considered a final order from which an appeal may be taken.

PA. CONST. art. V, § 18(d)(2).

2   In its decision, the CJD emphasized:

        [T]he abundant factual background discussed in this Court’s opinion was
        made available to this Court at the time of our evidentiary hearing, April 8,
        2013. This information was not formally of record before the Supreme
        Court at any time up to and through the time of the issuance of its February
        1, 2013 order suspending Bruno without pay.

(continued…)

                                      [J-59A-2013] - 3
       Learning from this case, I favor a deliberative approach that would afford

deference to the tribunal possessing concurrent authority, which conducted the factual

inquiry and heard argument on the appropriateness of the loss of salary, considered the

equities of the scenario, and determined that removal of Judge Bruno from the bench was

sufficient to protect the integrity of the judicial system until the federal criminal charges

were adjudicated. In all candor, had I known that the JCB had already filed in the CJD

the petition seeking the temporary suspension of Judge Bruno without pay, and that the

CJD was prepared to take imminent action thereon, I would have been content to await

the CJD’s action, rather than issue our sua sponte interim order of February 1, 2013,

suspending Judge Bruno without pay.

       That being said, I believe that unanswered questions remain regarding the

appropriate exercise of this Court’s discretion in future judicial misconduct cases. For

instance, the majority holds that the CJD should address routine matters of judicial

misconduct, with this Court acting only in extraordinary circumstances. The majority

does not, however, define what constitutes extraordinary circumstances, and leaves that

determination to develop incrementally in the law. Further, there is the question of the

appropriate timing for this Court to act. As a general matter, I believe we should allow

the CJD a fair opportunity to act before we determine whether our involvement in a judicial

misconduct case is necessary.        While I do not endeavor to define extraordinary

circumstances or pronounce precise timeframes in the paradigm of the facts presented,

or more broadly, I suggest that we coordinate the efforts of this Court and the CJD to

utilize judicial resources in the best manner and avoid issuance of conflicting orders.




(…continued)
In re Bruno, 69 A.3d 780, 798 (Pa. Ct. Jud. Disc. 2013).



                                     [J-59A-2013] - 4
      In furtherance of these goals, I propose that the JCB provide notice to this Court,

and inform the parties of such notice, when it files in the CJD a petition for interim

suspension of a jurist. Mere knowledge that the JCB is pursuing a particular judicial

misconduct matter in the CJD would allow this Court deliberately to either await action by

the CJD or decide that immediate action by this Court is, nevertheless, required. Either

way, we would proceed with open eyes, and the possibility of both tribunals employing

duplicative judicial resources and entering inconsistent directives would be reduced or

eliminated.

       This could be accomplished by amendment to the Judicial Conduct Board Rules,

which already contemplate notice to the CJD when a judicial officer is charged with a

felony, and notice to this Court when the JCB becomes aware of information warranting

the exercise of our supervisory jurisdiction over judicial officers. Specifically, Judicial

Conduct Board Rule 14 provides:

       Rule 14. Special Notice to the Supreme Court or the Court of Judicial
       Discipline.

             (A) Whenever the Board becomes aware of an indictment or
       information charging a felony against a Judicial Officer, the Board may file
       appropriate notice with the Court of Judicial Discipline.

              (B) Whenever the Board becomes aware of information related to a
       Judicial Officer which may, as provided by law, require or permit the
       exercise of the Supreme Court’s inherent power over the unified judicial
       system, the Board may file appropriate notice with the Supreme Court.


       In light of the difficulties that arose in the instant case, the JCB should consider

amending Judicial Conduct Board Rule 14 to provide for additional notice to this Court

when it has filed in the CJD a petition for interim suspension of a jurist, regardless of its




                                     [J-59A-2013] - 5
underlying justification.3 Providing such notice to this Court would enable us to be more

cognizant of potential parallel proceedings when acting to protect the integrity and dignity

of the unified judicial system and the citizens of this Commonwealth in these important

matters.4

       In this regard, I note the approach followed in child custody disputes pursuant to

the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S. §§

5401-5482, which requires communication between trial court judges in Pennsylvania

and judges from different states involved in ongoing child custody disputes. See e.g. 23

Pa.C.S. § 5447 (providing that when a proceeding to enforce a custody order is

commenced in Pennsylvania, and a proceeding to modify the same order is pending in

another state, the Pennsylvania court shall immediately communicate with the other court


3 The JCB has the constitutional authority to “establish and promulgate its own rules of
procedure.” PA. CONST. art V., § 18(a)(6). I suggest consideration of the issue only to
facilitate a more efficient exercise of concurrent authority.

4 In considering a potential rule change, strict adherence to the constitutional protections
of confidentiality, of course, is required. In that regard, Article V, Section 18(a)(8)
provides, in relevant part, as follows:

       Complaints filed with the board or initiated by the board shall not be public
       information. Statements, testimony, documents, records or other
       information or evidence acquired by the board in the conduct of an
       investigation shall not be public information. . . . All proceedings of the
       board shall be confidential except when the subject of the investigation
       waives confidentiality. . . .

PA. CONST. art. V, § 18(a)(8). While the matter will have to be examined in detail prior to
the promulgation of any new rules, the limited notice to this Court suggested herein does
not appear to violate Art. V, § 18(a)(8), as the JCB can file under seal in this Court a notice
indicating that it has sought interim suspension of a jurist in the CJD. This procedural
notice to our Court will not render public any complaint, statement, testimony, document,
record or other evidence acquired by the JCB in its investigation; nor does it appear to
violate the confidentiality afforded the actual proceedings of the Board.



                                      [J-59A-2013] - 6
to avoid duplicative litigation). Admittedly, this analogy is not directly on point because,

unlike trial courts with equivalent authority, the CJD is an inferior tribunal to this Court.

Nevertheless, similar to trial courts in different jurisdictions acting in furtherance of the

unified goal of avoiding contradictory custody rulings, this Court’s knowledge of a pending

action in the CJD would be helpful in determining the appropriate course of action and

avoiding inconsistent edicts in judicial misconduct cases.




                                     [J-59A-2013] - 7
