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12/23/97 JUDICIAL CONDUCT BOARD SUBPOENA NO. 96076

December 23, 1997

IN RE: JUDICIAL CONDUCT BOARD SUBPOENA NO. 96076; APPEAL OF: JUDICIAL CONDUCT BOARD


Appeal by permission from the order of the Commonwealth Court of Pennsylvania entered on November 15, 1996, and amended on December 16, 1996, which denied Judicial Conduct Board's petition to enforce subpoena no. 96076. Mr. Chief Justice Flaherty

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: DECEMBER 23, 1997

The single question in this matter is what tribunal has jurisdiction to enforce a subpoena issued by the Judicial Conduct Board during a confidential investigation prior to the filing of a complaint before the Court of Judicial Discipline. The board asserts that the Commonwealth Court of Pennsylvania is the proper tribunal, while the court held that it was without jurisdiction in any matter involving discipline of a judicial officer and that the Court of Judicial Discipline is the sole tribunal with jurisdiction in such a proceeding.

During an investigation by the board, it issued a subpoena ordering a witness, the appellee, to give evidence relevant to the investigation. The witness, through counsel, respectfully refused to comply with the subpoena, whereupon the board filed a petition in the Commonwealth Court seeking enforcement of the subpoena. The court dismissed the petition and certified that the issue involved a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal would substantially advance the ultimate termination of the matter, meeting the standard of 42 Pa.C.S. § 702(b). This court granted permission to appeal.

The reasoning of the Commonwealth Court and of the appellee was that the constitutional amendment of 1993, Article V, § 18, creating a comprehensive framework for judicial discipline, overrides any statutory provision which conflicts with the constitution. Appellant's basis for alleging jurisdiction in the Commonwealth Court, 42 Pa.C.S. § 761(a)(2), *fn1 is statutory. The court stated:

Recognizing the desired ends of the 1993 amendment, to create a plenary system of judicial discipline, this Court will not chip away at that system by granting the Board's petition to enforce subpoena. Jurisdiction to enforce a Board subpoena is with the CJD. Only the CJD has the power to sanction a Judge who does not comply with a Board subpoena. Whether a Judge complies with an order enforcing a subpoena is itself a matter of judicial discipline, over which the CJD has exclusive jurisdiction. It is an absurdity for this Court to issue an order enforcing a Board subpoena when this Court has no appropriate sanction to enforce that order.4

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4. This Court recognizes that it can hold a Judge in contempt for noncompliance with an order enforcing a subpoena, but in a matter of judicial discipline, that noncompliance is subsumed in that matter of judicial discipline. This Court has no power to remove a Judge from the bench or to otherwise discipline a Judge.

In re Judicial Conduct Board Subpoena No. 96076, 686 A.2d 46, 48 (Cmwlth.Ct. 1996).

The problem with this reasoning is that the witness in question, though he is a Judge and is the subject of an investigation, is not a respondent in a disciplinary proceeding before the Court of Judicial Discipline. The operative fact is that he is a witness under subpoena. His identity is not an issue. If the Commonwealth Court sanctions him for noncompliance with the subpoena, it is not imposing judicial discipline but contempt sanctions, as with any recalcitrant witness. We think this is clear because if the board's investigation yields no probable cause for discipline and the board declines to file formal charges against the Judge in the Court of Judicial Discipline, the question of judicial discipline never arises; the enforcement of the subpoena, however, precedes any disciplinary proceeding in the Court of Judicial Discipline, and arises without any regard to the identity of the witness.

The constitutional provision at issue states:

Upon the filing of formal charges with the court by the board, the court shall promptly schedule a hearing or hearings to determine whether a sanction should be imposed against a Justice, Judge or Justice of the peace pursuant to the provisions of this section. The court shall be a court of record, with all the attendant duties and powers appropriate to its function. Formal charges filed with the court ...


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