                                 [J-59A-2013]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT


IN RE: MAGISTERIAL DISTRICT JUDGE              :   No. 84 MM 2013
MARK A. BRUNO, MAGISTERIAL                     :
DISTRICT 15-1-01                               :   Petition to Vacate the Order of the
                                               :   Supreme Court Dated 2/1/13
PETITION OF: MARK A. BRUNO                     :
                                               :   ARGUED: September 10, 2013
                                               :
                                               :




                                CONCURRING OPINION


                                                         DECIDED: August 28, 2014
MR. JUSTICE SAYLOR                                 OPINION FILED: October 1, 2014

       I agree with the majority’s holding that this Court retains jurisdiction and power at

King’s Bench to direct the interim suspension of jurists in extraordinary circumstances.

My thinking is also aligned with much of the majority’s reasoning, but I note the difficulty

inherent in attaining full assent to an opinion of such ambitious breadth as the

majority’s. Presently, I write to elaborate on some of my differences both in approach

and substance.

       Initially, I believe that Judge Bruno, the Judicial Conduct Board, and amicus, the

Special   Court   Judges     Association,   have     presented    serious,   focused,    and

comprehensive advocacy supporting the position that the constitutionally prescribed

procedures for interim suspensions and discipline should be deemed exclusive.1 While

1
  Judge Clement of the Court of Judicial Discipline also presented a well-developed line
of reasoning in his concurrence in In re Bruno, 69 A.3d 780 (Pa. Ct. Jud. Disc. 2013)
(Clement, J., concurring), albeit, as concerns the King’s Bench power, ultimately this
(continued…)
recognizing that such contention has been rejected in previous decisions, moreover, I

observe that the doctrine of stare decisis has lesser force in matters of constitutional (as

opposed to statutory) interpretation, given that, short of recourse to the cumbersome

process of amending the constitution, this Court is the only body positioned to adjust

previous constructions in light of new information or experience. Accord, e.g., Hunt v.

PSP, 603 Pa. 156, 174, 983 A.2d 627, 637-38 (2009).2

       Ultimately, in light of the placement of the Court of Judicial Discipline within the

Unified Judicial System over which this Court presides, and in the absence of any

affirmative restraint upon King’s Bench, I agree that this Court’s power of interim

suspension persists. Upon reflection, and in light of the current presentations and the

underlying circumstances as they have unfolded, however, I believe that it was error on

our part to routinize a practice of interim suspension upon the indictment of judges on

felony charges. I supported that practice, particularly in cases involving allegations of

judicial corruption, because I found it unseemly for judges under the cloud of

indictments to sit in judgment of their fellow citizens. Nevertheless, I have come to the



(…continued)
reasoning rested on advocating for restraint, as opposed to asserting a disability. See
id. at 808-09 (Clement, J., concurring).

2
  With regard to the majority’s observation that the word “exclusive” does not appear in
the text of Article V, Section 18, see Majority Opinion, slip op. at 72 n.24, I would
observe that treatment of a constitutionally-designated power as exclusive in the
absence of an express prescription for such exclusivity is not without precedent. For
example, this Court’s constitutional “power to prescribe general rules governing
practice, procedure and the conduct of all courts,” PA. CONST. art. V, §10(c), is also not
expressly made to be exclusive, and yet this Court has so interpreted it. See, e.g.,
Payne v. Dep’t of Corr., 582 Pa. 375, 385, 871 A.2d 795, 801 (2005) (rules of
procedure); In re Suspension of Capital Unitary Review Act, 554 Pa. 625, 629, 722 A.2d
676, 679 (1999) (same); Reilly by Reilly v. SEPTA, 507 Pa. 204, 219, 489 A.2d 1291,
1298 (1985) (rules for supervising the conduct of courts).


                          [J-59A-2013][M.O. – Castille, C.J.] - 2
view that, especially in the areas of interim suspension and discipline expressly directed

by the Constitution to a separate constitutional body, the Court of Judicial Discipline’s

role should be given primacy, and I find salience in the suggestion that any exercise of

King’s Bench authority on our part should occur only in “extraordinary circumstances.”

Majority Opinion, slip op. at 76.3 For example, the Court of Judicial Discipline appears

better equipped to make factual determinations in the context of judicial disciplinary

proceedings while preserving the jurist’s procedural safeguards and a restrained course

on our part would minimize the prospect for overlapping and/or inconsistent orders.

      I am aware that this process can be slower than necessary to protect the integrity

of the Unified Judicial System, as indeed a four-month delay ensued between Judge

Bruno’s indictment and his suspension by the Court of Judicial Discipline, and his

presiding over court proceedings during that interval would have raised the same

difficulties that became evident in In re Franciscus, 471 Pa. 53, 369 A.2d 1190 (1977).

See id. at 55, 369 A.2d at 1191 (reflecting that this Court had suspended Judge

Franciscus from office because he was indicted on federal charges relating to his

judicial duties, but continued to preside over court proceedings). However, as this Court

presently recognizes, we can alleviate any such concerns through our general

supervisory and administrative powers under Section 10(a) by directing that the judicial

officer in question be assigned to duties which do not entail presiding over court

proceedings.   See Majority Opinion, slip op. at 78 n.26; PA. CONST. art. V, §10(a)

(providing that this Court “shall exercise general supervisory and administrative

authority over all the courts and justices of the peace”). Although this type of action is

more limited than an interim suspension order in that it would leave the jurist’s pay


3
  I also favor making all assertions of the exceptional King’s Bench powers express, so
that any order reflecting their exercise would indicate this basis.


                         [J-59A-2013][M.O. – Castille, C.J.] - 3
unaffected – whereas an interim suspension may be without pay – to my mind such

limitation is not especially problematic when compared with the prospect of conflicting

orders issuing from this Court and the Court of Judicial Discipline, as occurred vis-à-vis

Judge Bruno. While the majority suggests that concurrent operation of the Supreme

Court and the Court of Judicial Discipline in the suspension arena can occur

“comfortably,” Majority Opinion, slip op. at 84, in my opinion the Judicial Conduct Board

rightly observes that such conflicting orders are “inexplicable to the public.” Brief for

Judicial Conduct Board at 62.

       In terms of more acute differences, I would incorporate the extraordinary-

circumstances overlay into the actual holding from the outset of the opinion and scale

back on the breadth of the statement of the holding. See Majority Opinion, slip op. at 2.

For example, the statement that this Court “has exclusive jurisdiction at King’s Bench to

resolve the instant dispute, which implicates supervisory actions of the Court relating to

personnel of the Unified Judicial System,” id., can be read as being in tension with the

core recognition of the Court of Judicial Discipline’s jurisdiction and power relative to

interim suspensions.

       The majority opinion also uses the concept of the subsistence of King’s Bench

powers as a vehicle to suggest that there are limits on the General Assembly’s ability to

remove jurisdiction by statute, notwithstanding its contemporaneous explanation that

this Court may exercise jurisdiction “until otherwise provided by law.” Majority Opinion,

slip op. at 70. While there may indeed be some limits on the legislative curtailment of

our jurisdiction, those limits are not being tested here. The majority nonetheless deems

it relevant to specify that:

               Jurisdiction granted by statute may be removed by the
               General Assembly or via constitutional amendment, either
               expressly or by necessary implication. By comparison, the

                               [J-59A-2013][M.O. – Castille, C.J.] - 4
              jurisdiction necessary to the exercise of the Court’s King’s
              Bench powers . . . may be divested only by the people,
              expressly or by necessary implication.
Id. at 66 (bolding in original, citation omitted). Far from trying to eliminate such powers,

the General Assembly has confirmed them. See 42 Pa.C.S. §502. Therefore, I do not

see any present need to make a definitive pronouncement as to what powers may or

may not be impacted by the authority relegated by the Constitution to the General

Assembly relative to this Court’s jurisdiction.

       I also question whether the Court’s supervisory authority should be seen as part

of, or interchangeable with, its King’s Bench powers. See, e.g., Majority Opinion, slip

op. at 2 (referring to the supervisory authority as an “aspect of” King’s Bench power),

71, 75 (referring to these concepts in essentially an interchangeable manner). In my

view, this Court’s supervisory powers and duties arise by specific constitutional

mandate (Article V, Section 10(a)) and are designed to handle ordinary matters

involving the supervision of Pennsylvania courts and justices of the peace, including

such things as the temporary assignment of jurists to various courts as workload

demands. Accord Stander v. Kelley, 433 Pa. 406, 428, 250 A.2d 474, 487 (1969)

(Roberts, J., concurring) (referring to Section 10(a) as addressing, inter alia, the

“transfer [of] judicial manpower in light of the overall needs of the Commonwealth”).

King’s Bench, on the other hand, should be reserved for extraordinary circumstances –

and all the more so where, as here, the type of action involved is, by constitutional

design, expressly allocated to a distinct investigative/disciplinary structure.



       Madame Justice Todd joins this concurring opinion.




                          [J-59A-2013][M.O. – Castille, C.J.] - 5
