Appeal from the Order of the Commissioner of the Pennsylvania State Police in case of In Re: State Police Court-Martial -- Trooper Richard F. Berman.
Dennis J. Clark, with him Thomas A. Livingston, for petitioner.
Michael H. Garrety, Deputy Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Blatt. Dissenting Opinion by Judge Crumlish, Jr.
[ 37 Pa. Commw. Page 560]
Richard F. Berman appeals here from a decision of the Commissioner of the Pennsylvania State Police in which the Commissioner accepted the recommendation of a court-martial board and dismissed him from the Pennsylvania State Police. Berman argues that
[ 37 Pa. Commw. Page 561]
the State Police disciplinary procedures established by regulation are unconstitutional.
Berman maintains that the disciplinary procedures contained in the applicable State Police Field Regulations (SPFR) violate due process of law in that they create an unconstitutional commingling of judicial and prosecutorial functions in the State Police Commissioner. The identical argument led the Pennsylvania Supreme Court to invalidate as unconstitutional the regulations which were the predecessors to those challenged here in Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). In Dussia, the Court's conclusion of unconstitutionality was based on a recognition that former SPFR 3.03-E vested in the Commissioner sole discretion as to whether or not alleged misconduct on the part of a member of the State Police would be investigated and whether or not, subsequently, a court-martial proceeding would be initiated.*fn1 Combined with the Commissioner's ultimate judicial function in court-martial proceedings specified in Section 711 of The Administrative Code of 1929*fn2
[ 37 Pa. Commw. Page 562]
(Administrative Code), 71 P.S. § 251, the Court held that his authority by regulation to initiate prosecution as well, led to an impermissible commingling of judicial and prosecutorial functions. The Court stated:
The decision to institute a prosecution is such a fundamental prosecutorial function that it alone justifies concluding a dual capacity where the individual also is charged with the responsibility of making the ultimate determination of guilt or innocence. Moreover, it is a decision which requires a judgment as to the weight of the evidence against the accused, a judgment which is incompatible with the ...