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decided: February 28, 1977.



H. David Rothman, Harold Gondelman, Pittsburgh, for petitioner.

John J. Kennedy, Jr., Asst. Atty. Gen., Richard E. McDevitt, Executive Director, JIRB, Philadelphia, for respondent.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case.

Author: Jones

[ 471 Pa. Page 55]


This matter is before this Court on application by petitioner, Charles J. Franciscus, Justice of the Peace for Magisterial District 05-2-44, Allegheny County, to vacate an order of this Court entered on July 28, 1976, suspending him from his office and prohibiting him from exercising any and all judicial functions or duties until further order of this Court. Additionally, the order, which petitioner seeks to vacate, referred petitioner's case to the Judicial Inquiry and Review Board.*fn1 The order of suspension followed petitioner's indictment in the United States District Court for the Western District of Pennsylvania, relating to his official duties as a justice of the peace.

The question raised by the immediate application is whether this Court possessed the authority to issue the order prior to receiving a recommendation for suspension by the Judicial Inquiry and Review Board, pursuant to Article 5, Section 18 of the Pennsylvania Constitution. This is a case of first impression in this Commonwealth.

Petitioner contends that by issuing the suspension order prior to receiving a recommendation by the Judicial Inquiry and Review Board, this Court has deprived him of his office without due process of law. Consistent with this position, petitioner argues that this Court may only suspend a judge or other member of the minor judiciary pursuant to the provisions of Article 5, Section 18 of the Pennsylvania Constitution. We cannot agree.

It is true that Article 5, Section 18 establishes the procedure by which members of the judiciary may be

[ 471 Pa. Page 56]

    removed or subjected to disciplinary proceedings. However, Article 5, Section 18 in no way attempts to revoke or diminish the inherent authority of this Court to exercise its superintendency powers over the lower judiciary. The Court's supervisory powers in no uncertain terms are preserved by the Pennsylvania Constitution. Article 5, Section 1 of the Pennsylvania Constitution provides:

"The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system."

In order to insure a uniform judiciary and to preserve the integrity of its members, the people reserved the power of superintendency over inferior tribunals in the Supreme Court through Article 5, Section 10 of the Pennsylvania Constitution:

"(a) The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace, including authority to temporarily assign judges and justices of the peace from one court or district to another as it deems appropriate."

See Commonwealth ex rel. Specter v. Dennis, 10 Pa. Commw. 439, 442, 308 A.2d 915, 917 (1973).

The Supreme Court's inherent power over the inferior courts and judicial officers can be traced historically.*fn2 In Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 99-100, 61 A.2d 426, 428-29 (1948), the Court sketched the history of this Court's superintendency powers:

"It is suggested by the Turnpike Commission that although this Court has assumed the power to issue

[ 471 Pa. Page 57]

    writs of prohibition the question as to its constitutional right so to do has not heretofore been challenged or discussed. Be that as it may, the justification for the Court's exercise of such power is to be found in the Act of May 22, 1722, 1 Sm.L. 131, 140, section XIII, which vested in the Supreme Court all the jurisdictions and powers of the three superior courts at Westminster, namely, the King's Bench, the Common Pleas and the Exchequer. 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. Blackstone says, Book III, 42: 'The jurisdiction of this court [of King's Bench] is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below.' By the Act of 1722 the Supreme Court of Pennsylvania was placed in the same relation to all inferior jurisdictions that the King's Bench in England occupied, and thus the power of superintendency over inferior tribunals became vested in this Court from the time of its creation: Commonwealth v. Ickhoff, 33 Pa. 80, 81; Chase v. Miller, 41 Pa. 403, 411. In the exercise of its supervisory powers over subordinate tribunals the Court of King's Bench employed the writ of prohibition and such right and practice accordingly passed to the Supreme Court; First Congressional District Election, 295 Pa. 1, 13, 144 A. 735, 739; McNair's Petition, 324 Pa. 48, 64, 187 A. 498, 505. The provision of the Constitution limiting the original jurisdiction of the Court did not affect the existence of this right; the Constitution did not remove from the Court its supervisory functions over lower courts . . . . The power of controlling the action of inferior courts is so general and comprehensive that it has never been limited by

[ 471 Pa. Page 58]

    prescribed forms of procedure or by the particular nature of the writs employed for its exercise."

Petition of Squires and Constables Association of Pennsylvania, Inc., Allegheny County Chapter, 442 Pa. 502, 275 A.2d 657; see also Smith v. Gallagher, 408 Pa. 551, 573, 185 A.2d 135, 145 (1962); Commonwealth ex rel. Specter v. Dennis, 10 Pa. Commw. 439, 308 A.2d 915 (1973).*fn3

The inherent power of the State Supreme Court to supervise the conduct of officers of its judicial system has been recognized in other jurisdictions.*fn4 The Massachusetts Supreme Judicial Court in the case of In the Matter of DeSaulnier, 274 N.E.2d 454, 456 (1971), found that it

[ 471 Pa. Page 59]

    had the authority to consider disciplinary action against superior court associate justices:

"We now rule that this court has jurisdiction to impose appropriate discipline upon a member of the bar, who is also a judge, for misconduct or acts of impropriety, whether such acts involve his judicial conduct or other conduct. This we hold, even though, because he is a judge, he is not permitted to engage in the practice of law."

This conclusion was premised on the Court's prior determination that,

"[t]he power, authority, and jurisdiction of this court to make the inquiry and to hold hearings rest on at least the following grounds, among others: (a) the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice ; (b) the supervisory powers confirmed to this court by G.L. c. 211, ยง 3, as amended; (c) the power of this court to maintain and impose discipline with respect to the conduct of all members of the bar, either as lawyers engaged in practice or as judicial officers; and (d) the power of this court to establish and enforce rules of court for the orderly conduct (1) of officers and judges of the courts and (2) of judicial business and administration." (Emphasis added). Id. at 456.

The establishment by this Court*fn5 of rules of procedure to govern the Judicial Inquiry and Review Board and to protect the procedural rights of the members

[ 471 Pa. Page 60]

    of the judiciary cannot provide a basis for defeating this Court's authority to take the action necessary to properly supervise the lower judiciary. Cf. In re Disbarrment Proceedings, 321 Pa. 81, 101, 184 A.2d 59, 68 (1936). The rules in question were promulgated to provide an efficient and fair procedure to govern the operation of the Judicial Inquiry and Review Board. That procedure has not been abrogated here. Rather, we have merely exercised our supervisory authority to protect and promote the public confidence in our judicial system, pending resolution of the proceedings before the Judicial Inquiry and Review Board. As the highest court of this Commonwealth, we would be remiss in our duty if we neglected to exercise our inherent supervisory power on the theory that another means to resolve the problem may be available, when the alternative solution would not adequately meet the exigencies of the circumstances presented. Here, the petitioner's rights have been fully protected by the immediate referral of the matter of the Judicial Inquiry and Review Board. The suspension in the instant case cannot be considered a final determination as to the right of petitioner to hold his office since the suspension remains effective only until a disposition is made by the Board.*fn6 Thus, petitioner will be granted a hearing, a full opportunity to present evidence in his behalf

[ 471 Pa. Page 61]

    and to cross-examine witnesses against him.*fn7 The order of suspension in the instant case will in no way jeopardize petitioner's case. The sole purpose of such an order is to maintain the probity and judicial appearance of our justices of the peace for the protection of the people of this Commonwealth. If the judicial system of this Commonwealth fails to maintain a high standard of professional ethics and propriety, then we can expect little faith and confidence to be placed in our proceedings by the members of the practicing bar or the public.

It is true that one who is a member of the judiciary does not forfeit the rights he had as a citizen. It is not the personal habits of the individual with which we are concerned, but the acts done as a member of the judiciary which causes our attention to focus on such a member. See, e. g., Mahoning County Bar Association v. Franko, 168 Ohio St. 17, 151 N.E.2d 17 (1958). The Supreme Court of Massachusetts succinctly explained the ambit of judicial behavior with which this Court must be concerned:

"Unquestionably a judge is entitled to lead his own private life free from unwarranted intrusion. But even there, subjected as he is to constant public scrutiny in his community and beyond, he must adhere to

[ 471 Pa. Page 62]

    standards of probity and propriety higher than those deemed acceptable for others. More is expected of him and, since he is a judge, rightfully so. A judge should weigh this before he accepts his office." In re Troy, 364 Mass. 15, 306 N.E.2d 203, 235 (1973).

The order which this petitioner seeks to vacate was not meted out as a form of punishment.*fn8 Rather, 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. . . ." In re Samuel Davies, 93 Pa. 116, 121 (1880). A judge or justice of the peace in fulfilling his judicial function must not only strive to insure fair treatment toward every individual who appears before him, but he must also present the appearance of fairness and probity in his behavior as a judicial officer. If that appearance falters, the confidence of the public will naturally wane.*fn9 We have been entrusted by the people of this Commonwealth with the obligation to prevent such an occurrence. The petition to

[ 471 Pa. Page 63]

    vacate the order of suspension is, therefore, denied, and the order of this Court suspending petitioner from office until final order of this Court is affirmed.

"That some judges -- however few in number is beside the point, for even one rotten judicial apple can go far toward spoiling the entire judicial barrel -- fall short of the requisite standards of integrity and propriety (nebulous and ill defined though they may be) creates a large part of the problem of public confidence."

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