the Judicial Board, and the overall conduct of proceedings by the full Judicial Board did not run afoul of the ancient maxim that "no man shall be judge in his own cause." (8 Co 114a, 118a (1610), translated from Latin, Davis, Administrative Law, § 13:01, p. 172). The determination made by the Board was not a final adjudication, but a recommendation which may be approved or disapproved by the Supreme Court of Pennsylvania. The final responsibility for evaluating the recommendation of the Judicial Board and determining the fitness of a judge to hold office rests exclusively with the Supreme Court of Pennsylvania. With this clear separation of preliminary investigative and final adjudicatory functions, plaintiff's claim of denial of due process is plainly insubstantial.
The plaintiff has claimed that his Sixth Amendment right to confront the witness against him was denied when the transcript of prior testimony of a witness, Ralph DiPiero, who did not testify at his hearing, but who was "not legally unavailable" for the hearing was admitted in evidence against him. As noted above, I have found that the proceedings before the Board were not essentially criminal in nature, and therefore no Sixth Amendment right of confrontation is involved. Apart from the specific confrontation guarantee of the Sixth Amendment, the plaintiff may be understood to contend that the introduction of the statement in question at the hearing before the Judicial Board, without an opportunity to cross-examine the witness at that time, was fundamentally unfair and constituted a denial of due process under the Fourteenth Amendment. This claim is also without merit.
At the hearing in regard to the complaint against E. David Keiser held in Philadelphia, Pa. on June 2, 1970, one Ralph DiPiero was called to testify, and was asked by an attorney for the Commonwealth to relate his knowledge of any alleged payments of money to Magistrate Keiser for his attempts to influence the disposition of matters then pending in the state courts. Mr. DiPiero, on the advice of counsel, consistently asserted that his answers to such questions might incriminate him and therefore consistently claimed the protection of the Fifth Amendment. (Notes of Testimony, June 2, 1970, pp. 67-94) Although Judge Montgomery refused to accept DiPiero's claim of Fifth Amendment privilege and directed him to answer the questions posed by the attorney for the Commonwealth, DiPiero still refused to answer on grounds of possible self-incrimination. (Notes of Testimony, June 2, 1970, p. 69-70)
After Mr. DiPiero consistently refused to answer the direct questions of the Commonwealth, he was asked if he had testified on July 12, 1966 at a proceeding before the Honorable Joseph Sloan in the matter of Commonwealth v. E. David Keiser -- the preliminary hearing which led to Magistrate Keiser's subsequent indictments; in regard to any questions concerning his previous testimony on July 12, 1966, DiPiero again claimed the protection of the Fifth Amendment. Judge Montgomery again refused to accept this claim of privilege but the witness still persisted in his refusal to answer any questions concerning his previous testimony. In face of this continued refusal to respond, the Commonwealth, over objection of counsel for Judge Keiser, offered in evidence the transcript of the sworn testimony of Ralph DiPiero taken before Judge Joseph Sloan, on July 12, 1966. The testimony so admitted set forth in detail DiPiero's personal knowledge of two transactions through which Judge Keiser allegedly received $5,600.00 for his efforts to attempt to influence the outcome of two cases pending in Pennsylvania state courts. At the time of this testimony in 1966, Mr. DiPiero was duly sworn and was subjected to vigorous cross-examination by one, the plaintiffs present counsel, Morton Witkin.
Under these circumstances I find that the admission of the transcript of DiPiero's 1966 testimony to be fully consistent with procedural due process. In California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) the Supreme Court approved the admission as substantive evidence in a criminal trial of a statement given at a preliminary hearing.
The Court stated that the witness' "preliminary hearing testimony was admissible as far as the Constitution is concerned wholly apart from the question of whether [the defendant] had an effective opportunity for confrontation at the subsequent trial." 90 S. Ct. at 1938. The Court noted that the testimony of one Porter at the preliminary hearing "had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel -- the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Under these circumstances, Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable despite good-faith efforts of the State to produce him." 90 S. Ct. at 1938-1939. The Supreme Court specifically noted that "unavailability" included the claim of Fifth Amendment privilege. 90 S. Ct. at 1940.
California v. Green upheld the substantive admission of prior statements at a criminal trial when the reliability of the testimony had been previously tested by the requirement of an oath and cross-examination by counsel. Since the admission of such testimony for substantive purposes was found to be consistent the confrontation guarantee of the Sixth Amendment, then a fortiori the admission of such reliably tested evidence under the circumstances of the present case is consistent with the fundamental concepts of due process.
V. EX POST FACTO LAW
The plaintiff claims that his removal from judicial office, pursuant to Article 5, Section 18 of the Pennsylvania Constitution was in violation of the constitutional prohibition against ex post facto laws. An evaluation of this contention requires a careful comparison of the procedures for the removal of state judges provided by the present Article 5, Section 18 and by Article 6 of the 1874 Pennsylvania Constitution, in light of the purpose and scope of the constitutional prohibition against ex post facto laws.
A. ARTICLE 5, SECTION 18 AND PRIOR CONSTITUTIONAL PROVISIONS REGARDING JUDICIAL DISCIPLINE.
At the time of the misconduct with which the plaintiff was charged as a basis for his removal from judicial office, the only provisions for removal of a judge from office were found in Article 6 of the Constitution of 1874. According to Article 6, a judge could be removed from office only through (1) impeachment, (2) conviction of misbehavior in office or of any infamous crime; or (3) determination by the Governor of reasonable cause for removal, after due notice and full hearing on the address of two-thirds of the Senate.
On April 23, 1968, the procedure for removal of a judge from office was revised, with the enactment of the present Article 5, Section 18, of the Pennsylvania Constitution, effective January 1, 1969. Rules implementing this newly enacted constitutional provision were subsequently promulgated by the Pennsylvania Supreme Court, No. 512, Miscellaneous Docket No. 16. Article 5, Section 18 provides for a Judicial Inquiry and Review Board of nine members who are to investigate, hear complaints and make recommendations to the Supreme Court on matters of suspension, removal, discipline or compulsory retirement. The Supreme Court of Pennsylvania has the final responsibility for the disposition of recommendations by the Judicial Inquiry and Review Board. According to the Attorney General for the Commonwealth of Pennsylvania, the purpose of the Amendment (and the rules promulgated thereunder by the Pennsylvania Supreme Court) was "to 'update' the procedures for removal of a justice or judge * * * Article 5, Section 18 is merely part of a comprehensive revamping of the Pennsylvania judiciary [sic] which resulted from the 1967-68 Pennsylvania Constitutional Convention." (Defendants' Brief to Dismiss, p. 25.)
The conditions governing removal of a state judge prior to the enactment of Article 5, Section 18, and the reasons for its enactment are discussed in a contemporaneous study of the proposals presented to the 1967-68 Constitutional Convention:
"Judges could be impeached for misbehavior in office, under the constitutional provisions covering impeachment of all civil officers. Also, the judges of all courts of record, except Supreme Court justices (were) subject to removal 'for any reasonable cause' by the Governor, but only at the initiation of two-thirds of each house of the General Assembly. Minor judiciary (were) removable by the Governor at the initiation of two-thirds of the Senate and after notice and hearing. The Constitutional provisions for removal of judicial officers (were) numerous, ambiguous and conflicting. Instances of removal by use of these procedures (were) extremely rare. Pennsylvania Economy League, Inc. -- State Bulletin, Con-Con Edition Number 5, February, 1968, p. 3. The Constitution of 1874 of Article 5, Section 15, as amended.
B. PURPOSE AND SCOPE OF THE PROHIBITION OF EX POST FACTO LAWS.
Against this legislative background, the validity of the application of Article 5, Section 18 to plaintiff can be considered in light of the scope and purpose of the Constitutional prohibition against ex post facto laws.
In Calder v. Bull, 3 U.S. (3 Dallas) 386, 1 L. Ed. 648 (1798), Justice Chase defined four categories of ex post facto laws:
(1) Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action.
(2) Every law that aggravates a crime, or makes it greater than it was, when committed.
(3) Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
(4) Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. (3 U.S. at 390.)
In Calder, the Supreme Court held that a Connecticut statute setting aside a decree of a state probate court, and granting a new hearing on the matter in controversy, was not invalid as an ex post facto law.
C. REMOVAL FROM JUDICIAL OFFICE AS PUNISHMENT.
An important clarification of the form of legislative action to which the ex post facto prohibition applies was provided by Ex Parte Garland, 71 U.S. 333, 18 L. Ed. 366 (1866) and Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356 (1866) decided by the United States Supreme Court shortly after the termination of the Civil War. In ex parte Garland, an attorney who had served as a legislative representative in the government of the confederacy had been excluded from practice before all Federal Courts because of his failure to subscribe to a loyalty oath required by Congress. In 1865, Congress had enacted a statute providing that no attorney could practice before any Federal Court without taking an oath affirming, inter alia, that he had "never sought, accepted or attempted to exercise the functions of any office whatsoever, under any authority or pretended authority in hostility to the United States." 71 U.S. at 369. Although the petitioner had been admitted to practice before the United States Supreme Court in 1860 under the rules then in force, his inability to take the oath required by Congress (by reason of his holding office under the Confederacy) made him ineligible to practice in any Federal Court.
In finding this legislative prohibition of petitioner's practice of law in Federal Courts invalid as an ex post facto law, the Court declared that "* * * exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct." 71 U.S. at 370. (Emphasis added.) In the companion case to Garland -- Cummings v. Missouri -- the Supreme Court condemned as an ex post facto law and bill of attainder a Missouri statute requiring that a minister, in order to be licensed to follow his calling, subscribe to an oath affirming that he had never "by act or word" manifested loyalty to the Confederacy. 71 U.S. at 316. Finding that the oath requirement was intended to deprive certain persons "of the right to hold certain offices and trusts and to pursue their ordinary and regular avocation" the Supreme Court squarely held that "[this] deprivation is punishment. * * * It is a misapplication of terms to call it anything else." 71 U.S. at 327.
For the purpose of testing the applicability of the ex post facto prohibition to the circumstances of the present case, it would be a "misapplication of terms" to consider the plaintiff's removal from office as anything but punishment.
Under Garland and Cummings, therefore, plaintiff's removal from judicial office must be considered punishment. The decisive question before me, therefore, is whether this form of punishment was imposed under circumstances violative of the prohibition against ex post facto laws.
D. CHANGES IN SUBSTANTIVE PROCEDURAL PROTECTION.
In Calder v. Bull, supra, Justice Chase listed as one form of ex post facto law "[every] law that alters the legal rules of evidence, and receives less, or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." 3 U.S. at 390. Decisions of the Supreme Court applying this definition of an ex post facto law have evolved a distinction between mere changes in "the modes of procedure" governing the determination of guilt and punishment and changes which materially alter or diminish the procedural protections afforded to the accused at the time of the commission of the offense. Only retroactive changes which substantially diminish procedural protections of an accused have been found to conflict with the ban against ex post facto laws.
At the outset, it should be clear that acceptance of any payment under the circumstances alleged in the complaint against Judge Keiser was prohibited conduct and a clear basis for removal from office at the time of the alleged receipt of payments by Judge Keiser.
Decisions of the Supreme Court have upheld the validity of retroactive procedural changes against challenge as invalid ex post facto laws. The underlying rationale of these decisions in that the changes in question did not substantially diminish the procedural protections afforded to the accused at the time of the commission of the offense.
In Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884) it was unanimously held that a law which made it competent for witnesses to testify to the commission of a crime who were incompetent to testify at the time the crime was committed was not an ex post facto law.
In Mallett v. North Carolina, 181 U.S. 589, 597, 21 S. Ct. 730, 733, 45 L. Ed. 1015 (1901) the Supreme Court upheld against challenge as an ex post facto law a statute authorizing an appeal from the grant of a new trial in a criminal case, as applied to cases where the trial had been held, though the new trial had not been granted, before the statute was passed. The Court in Mallett concluded that the challenged statute "* * * did not deprive the accused of any substantial right or immunity possessed by then [sic] at the time of the commission of the offense charged."
In Thompson v. Missouri, 171 U.S. 380, 18 S. Ct. 922, 43 L. Ed. 204 (1898) it was held that a Missouri statute, providing that comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writing and the evidence of witnesses respecting the writing may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute, was not ex post facto when applied to prosecution for crimes committed prior to its passage. In Thompson, the Court quoted with approval the following observation on ex post facto laws from Cooley's Treatise on Constitutional Limitations:
"Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime." ( Ch. 9, p. 272, 5th Ed., 171 U.S. at 386, 18 S. Ct. at 924).
Does plaintiff really suggest that there should be a different and less stringent ex post facto standard for judges than there existed for criminal defendants in Mallett and Hopt, supra. In Hopt, the defendant had been convicted of murder in the first degree and sentenced to death. To accept plaintiff's argument would be to vindicate Edmund Burke's conclusion that the "law sharpens the mind by narrowing it."
Bacon, in his extraordinary essay Of Judicature said:
"The place of justice is a hallowed place and therefore not only the Bench, but the foot pace and precincts and purpose thereof ought to be preserved without scandal and corruption." (See Works of Lord Bacon, 59 (M. Murphy Ed. 1876.)
Chief Justice Marshall said, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, it is "'emphatically the province' of the judiciary to say what the law is. But if that be so * * * then the ancient question, Quis Custodiet Ipsos Custodes?,
immediately arises. Who, indeed, should put the judiciary's house in order?" (See 35 Law and Contemporary Problems, p. 92). The Pennsylvania Constitution, through its 1968 Amendment, gives an opportunity to deal with these occasional and sporadic abuses in order to put the judiciary's house in order. Plaintiff has no constitutional right to be tried or disciplined by the exact procedures which were in effect at the time of his alleged misconduct.
I find that the procedures of the Judicial Board are fully fair and in no way result in the denial of any substantial procedural protection which was afforded to plaintiff at the time of his alleged misconduct. I therefore find plaintiff's ex post facto claim to be without merit.