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MATTER XYP (12/27/89)


decided: December 27, 1989.


Petition for Review and for Declaratory Relief.


XYP, pro. per.

Robert Keuch, Executive Director, for Judicial Inquiry and Review Bd.

Nix, C.j., and Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., did not participate in the consideration or decision of this case.

Author: Flaherty

[ 523 Pa. Page 412]


This case involves a petition for review and for declaratory relief filed by a judge of the Court of Common Pleas of Philadelphia County, seeking review of disciplinary action taken by the Judicial Inquiry and Review Board (JIRB). The judge in question, to be referred to herein as XYP for purposes of confidentiality, received a letter from the JIRB informing him that he was being admonished for a violation of Canon 3(A) of the Code of Judicial Conduct as a result of comments which he made in two opinions filed in one case.

[ 523 Pa. Page 413]

XYP was unaware that such a letter might be forthcoming, for he had not been afforded any notice by the JIRB that his opinions were under review. The letter, dated May 12, 1989, and signed by the Executive Director and General Counsel for the JIRB, stated the following:

Following a review of the opinions written by you in [case name deleted], the Board has determined that its inquiries into this matter should be closed without any formal action being taken.

However, the Board has directed me to inform you that, in their view, the license taken by you in the opinions constitutes a violation of Canon 3(a) of the Code of Judicial Conduct which require[s] that a judge must be unswayed by partisan interest, public clamor, or fear of criticism and, most importantly, requires that a judge be patient, dignified, and courteous to lawyers and others with whom he deals in his official capacity. They have, therefore, directed me to admonish you that such conduct does not meet the standards required of the members of our judiciary by the Canons. The Board did consider all of the circumstances in this matter and, while they may understand the reasons behind your reactions, the Board concluded that the judicial immunity which a judge enjoys is a solemn and sacred trust that should not be used as a license for the types of opinions issued by you in this matter.

This admonishment will remain part of the permanent confidential records of the Board and should there be similar conduct on your part in the future or any other conduct which the Board finds to be misconduct, this admonishment will be given appropriate consideration in determining the Board's response to that misconduct.

The opinions referred to in the letter were those filed by XYP in response to motions for recusal lodged by the defendants in the relevant case. The relevant case was a class action involving damage claims against manufacturers of lead-based products which purportedly caused health-related injuries to a number of individuals. XYP denied the

[ 523 Pa. Page 414]

    motions for recusal, but then recused himself sua sponte on the ground that defense counsel had engaged in what XYP perceived as vicious and obstructive conduct designed to prevent him from presiding over the case.

The opinions in question, which addressed only the motions for recusal, consisted of a sixty-two page opinion and a supplemental twelve page opinion. In these opinions XYP discussed at length the grounds asserted for recusal, and, in the course of rejecting these grounds, made numerous comments about defense counsel.*fn1 As stated in the letter

[ 523 Pa. Page 415]

    from the JIRB, supra, the JIRB regarded these comments as inappropriate and as a violation of Canon 3(A) of the Code of Judicial Conduct. Canon 3(A) provides, in pertinent part, that a judge "should be unswayed by partisan interests" and "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity . . . ."

The issue presented in this case is not, however, whether a violation of Canon 3(A) in fact occurred, but rather whether the JIRB had authority to issue a letter of admonition to XYP. Under Art. V, ยง 18(e)-(h) of the Pennsylvania Constitution, it is clear that the JIRB lacked the necessary authority. Our Constitution provides:

(e) The board [JIRB] shall keep informed as to matters relating to grounds for suspension, removal, discipline or compulsory retirement of justices or judges. It shall receive complaints or reports, formal or informal, from any source pertaining to such matters, and shall make such preliminary investigations as it deems necessary.

(f) The board, after such investigation, may order a hearing concerning the suspension, removal, discipline or compulsory retirement of the justice or judge . . . .

(g) If, after hearing, the board finds good cause therefor, it shall recommend to the Supreme Court the suspension, removal, discipline or compulsory retirement of the justice or judge.

(h) The Supreme Court shall review the record of the board's proceedings on the law and facts and may permit the introduction of additional evidence. It shall order suspension, removal, discipline or compulsory retirement,

[ 523 Pa. Page 416]

    or wholly reject the recommendation, as it finds just and proper.

(Emphasis added).

The formal powers of the JIRB, under these constitutional provisions, are plainly limited to investigating the conduct of the judiciary and making recommendations to this Court regarding disciplinary sanctions. This Court, rather than the JIRB, has the exclusive constitutional power to impose sanctions. See also Matter of Glancy, 515 Pa. 201, 217, 527 A.2d 997, 1005 (1987). By administering an admonition to XYP, thereby imposing a form of disciplinary sanction, the JIRB exceeded the scope of its authority. The admonition must, therefore, be expunged from records maintained by the JIRB.

The Rules governing the JIRB specify that the JIRB can, of its own volition, or in response to allegations by a complainant, institute an investigation of alleged judicial improprieties. See Rule 1, "Preliminary Investigation." We believe, however, that it is necessary to limit the investigatory power of the JIRB in cases such as this where the sole focus of inquiry is a judicial opinion. Otherwise, fear of investigation by the JIRB might unduly inhibit and chill judges in the performance of their duties.

There has long been recognized an absolute privilege which protects judges from liability for statements made during the performance of their judicial duties. See Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986); Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907). Judicial immunity rests upon a recognition of the necessity of preserving an independent judiciary, and reflects a belief that judges should not be hampered by fear of vexatious suits and personal liability. It also reflects a view that it would be unfair to expose judges to the dilemma of being required to render judgments while at the same time holding them accountable to the judgment of others. As stated in Stump v. Sparkman, 435 U.S. 349, 363, 98 S.Ct. 1099, 1108, 55 L.Ed.2d 331, 343 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872)), "the doctrine of judicial immunity is

[ 523 Pa. Page 417]

    thought to be in the best interests of 'the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself.'" See also Binder v. Triangle Publications, Inc., 442 Pa. 319, 323-24, 275 A.2d 53, 56 (1971) ("The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences.). Thus, the JIRB is hereby directed to refrain from initiating such investigations.

Immunity is, of course, a solemn and sacred trust that should not be abused, and it is not to be regarded as a license for the judiciary to engage in improprieties. This Court will, in cases of flagrant and egregious abuse of this trust, initiate appropriate disciplinary proceedings.

We therefore vacate the admonishment imposed upon XYP, and order that the admonishment be expunged from records maintained by the JIRB, as well as all other such admonitions that may have been privately entered in the past.

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