[J-49A-2017] [MO:Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN RE: ANGELES ROCA FIRST : No. 42 EAP 2016
JUDICIAL DISTRICT PHILADELPHIA :
COUNTY : Appeal from the Order dated December
: 16, 2016 of the Court of Judicial
: Discipline at No. 14 JD 2015
APPEAL OF: ANGELES ROCA :
: ARGUED: May 9, 2017
CONCURRING AND DISSENTING OPINION
JUSTICE TODD DECIDED: November 22, 2017
I join the majority with the exception of its determination regarding our Court’s
power to review a Court of Judicial Discipline (“CJD”) order on the basis of whether the
sanction is “warranted by the record” pursuant to Art V, § 18(b)(5). Majority Opinion at
21. Initially, I do not believe this issue was properly preserved and argued. Rather than
addressing this issue, I would await targeted advocacy before deciding this significant
question of the breadth of our Court’s power of review. Moreover, and related thereto, I
have serious concerns regarding the wisdom of our Court’s review under such a
warranted-by-the-record standard, given the language of the Constitution regarding our
review, the history of that provision, and the resultant sweeping expansion of this
Court’s involvement in CJD’s sanctions.
First, I do not believe this issue is properly before us. Appellant Angeles Roca
does not raise Art V, § 18(b)(5) as a basis for our review in her questions presented,
does not suggest such review in her statement of the scope and standard of review, and
does not develop in any way the idea that our “lawfulness” review includes
consideration of whether the sanction is supported by the record. At best, and as noted
by the majority, Appellant contends her sanction is “unwarranted under the facts of this
case, is extremely harsh and excessive and absolutely contrary to existing case law.”
Appellant’s Brief at 49. In making these bald assertions, however, she makes no legal
argument grounded on the constitutional provision on which the majority relies, but,
rather, does so only in support of her contention that our Court enjoys de novo review.
Appellant’s Brief at 58. Indeed, Appellant’s two-pronged argument focuses solely on (1)
whether our Court’s decision in In re Bruno, 101 A.3d 635 (Pa. 2014), provides for de
novo review, and (2) her claim that the CJD erroneously failed to discuss or distinguish
prior case law. It is only in the context of these issues that Appellant generically
contrasts the facts in this matter with the sanction. See, e.g., Appellant’s Brief at 52, 58-
80. In my view, she does not preserve the question of whether we, as part of our
review, consider whether the sanction is “warranted by the record” pursuant to Art V, §
18(b)(5), and the majority, in an apparent effort to reach the issue, takes the above-
quoted language from page 49 of Appellant’s brief out of context. An issue of such
constitutional magnitude should be determined only after the issue is specifically and
unambiguously raised, and after pointed advocacy by the parties.
Second, I have serious concerns about divining our Constitution to provide such
broad warranted-by-the-record review. First, the constitutional language regarding our
Court’s review of a jurist’s ultimate sanction is clear and limited: we review CJD
decisions for “whether the sanctions imposed were lawful.” Art V, § 18(c)(2). The
majority, citing our consistent prior precedent, comes to the reasonable conclusion that
“lawful” is the equivalent of “available.” See, e.g., In re Merlo, 58 A.3d 1 (Pa. 2012); In
re Lokuta, 11 A.3d 427 (Pa. 2011); In re Berkhimer, 930 A.2d 1255 (Pa. 2007).
However, the majority does not stop there, but cross-references the mandate in Section
18(b)(5), which is directed at the CJD, and concludes that this Court must also review
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for whether the sanction is “warranted by the record” as an “unavoidable corollary” to
the CJD’s constitutional command. Majority Opinion at 21. The existence of distinct
constitutional language ― directed at the CJD in Section 18(b), and directed at this
Court in Section 18(c) ― raises significant questions about whether such review is, or
should be, part of our lawfulness review.
Further, the 1993 amendments brought to Pennsylvania a significant overhaul of
the process for disciplining jurists, created the independent CJD, and circumscribed this
Court’s review of the discipline of judges; indeed, the amendments stripped our review
authority entirely where a Justice is the subject of the discipline. See Pa. Const. art. V,
§ 18(c)(1). These amendments to our Constitution thus suggest the framers envisioned
a more cabined review by our Court, rather than the more expansive one conceived by
the majority.
Moreover, the ramifications of our Court reviewing for whether a sanction is
“warranted by the record” gives me pause. Such review gives our Court significant
power over CJD’s decisions, and could lead to our Court routinely weighing in on the
appropriateness of the sanction imposed by the CJD and substituting its judgment for
that of the CJD under the guise of appellate review ― as if the CJD were merely an
advisory board. This could severely erode the independence of the CJD. Indeed, the
majority’s interpretation of a warranted-by-the-record review seemingly results in a
standard of review more akin to that of abuse of discretion or even de novo ―
standards which would appear to be in conflict with the express constitutional language
seemingly limiting our review.
Finally, the majority’s tack to reach the warranted-by-the-record issue by
deeming it a jurisdictional matter merits comment. Majority Opinion at 26. First, the
majority’s discussion regarding the “scope of appellate jurisdiction” and its claim that we
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can thus reach the warranted-by-the-record issue sua sponte, constitutes obiter dicta if,
indeed, as asserted by the majority, the issue was properly preserved. See id.; see
generally In re Estate of Cassell, 6 A.2d 60, 61 (Pa. 1939) (finding comments not
necessary to decision of case are dicta). Indeed, the majority elevates a simple
question of issue preservation to one of constitutional jurisdictional proportions, a
course we properly strive to avoid. See, e.g., In re B., 394 A.2d 419, 421-22 (Pa. 1978)
(“Ordinarily, when faced with an issue raising both constitutional and non-constitutional
questions, we will make a determination on non-constitutional grounds, and avoid the
constitutional question if possible.”).
Furthermore, the majority’s assertion that we may raise this issue sua sponte, is
misplaced, as it conflates concepts of a court’s appellate jurisdiction with the scope and
standard of its review. Specifically, “[j]urisdiction over the subject matter is conferred
solely by the Constitution and laws of the Commonwealth. The test for whether a court
has subject matter jurisdiction inquires into the competency of the court to determine
controversies of the general class to which the case presented for consideration
belongs.” In re Administrative Order No. 1-MD-2003, Appeal of Troutman, 936 A.2d 1,
5 (Pa. 2007) (citations omitted). It is foundational that jurisdictional questions may be
raised sua sponte. However, the jurisdiction of our Court ― the competency of our
Court to review CJD decisions involving a judge or magisterial district judge ― is plainly
answered in Article V, § 18(c)(1) (“A judge or justice of the peace shall have the right to
appeal to the Supreme Court in a manner consistent with rules adopted by the Supreme
Court;”).
As is evident from the above, the issue raised by the majority does not go to
subject matter jurisdiction. Rather, it implicates the “manner of our appellate review” of
CJD sanctions, i.e., our standard of review ― be it de novo (as asserted by Appellant),
[J-49A-2017] [MO: Saylor, C.J.] - 4
limited to whether the sanction is available, or something in between as now suggested
by the majority. See Majority Opinion at 11. Contrary to the majority’s claims, this is not
a jurisdictional question because, regardless of what we determine our proper standard
of review to be ― narrow or broad ― and, more specifically, regardless of whether we
adopt the majority’s warranted-by-the-record review, our Court retains jurisdiction to
conduct its review of the CJD’s decisions. Stated another way, regardless of the
answer to the majority’s “jurisdictional” query, we will not dismiss the appeal for wont of
jurisdiction. Indeed, this fact is what makes the cases cited by the majority clearly
distinguishable from this matter: in those cases, the answer to the jurisdictional
question led to either further review by the court, or dismissal. Majority Opinion at 26-27
(citing, e.g., Commonwealth v. Sanders, 394 A.2d 522, 524 n.2, 525 (Pa. 1978)
(determining question of final order implicates jurisdiction, and finding no final order
warranted quashal of appeal); Commonwealth v. Beasley, 741 A.2d 1258, 1261-62 (Pa.
1999) (addressing timeliness of PCRA petition sua sponte, and, as no claims satisfied
exceptions to the jurisdictional time bar, affirmed denial of petition); Reading Anthracite
Co. v. Rich, 577 A.2d 881, 886 (Pa. 1990) (two-Justice Court) (finding appeal period
goes to “jurisdiction to hear and decide a controversy”)).
Moreover, the majority’s citation to cases in the unique area of bifurcated
sentencing jurisdiction provides no further support, reaffirms a categorical approach to
jurisdiction, and actually supports the principle that questions regarding the proper
standard of review are not jurisdictional. Certain of the cases cited by the majority stand
for the unremarkable principle that jurisdictional issues are categorical ― specifically,
claims that implicate the discretionary aspects of sentencing are beyond the jurisdiction
of our Court, while we have jurisdiction over issues which go to the legality of sentence.
See Majority Opinion at 27 n.18 (citing Commonwealth v. Shiffler, 879 A.2d 185, 188-89
[J-49A-2017] [MO: Saylor, C.J.] - 5
(Pa. 2005); Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003)). However,
other decisions cited by the majority actually support my view that questions regarding
the proper standard of review are not jurisdictional in nature. Specifically, in
Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996), our Court first determined that,
because the question before it implicated the legality of sentence, we had jurisdiction.
Id. Only then did we continue to consider the non-jurisdictional question of the proper
standard of review, determining that 42 Pa.C.S. § 9781 provided that an appellate court
shall vacate a sentence and remand to the sentencing court if “the sentencing court
sentenced outside the sentencing guidelines and the sentence is unreasonable.” Smith,
673 A.2d at 895. Indeed, the non-jurisdictional “unreasonableness” review in Smith is
analogous to the question sub judice of whether our “lawfulness” review includes
consideration of whether the sanction is “warranted by the record.” Art. V, § 18(c)(2).
See also Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007).
In short, contrary to the majority’s novel jurisdictional “scope” construct, which the
majority asserts may be raised sua sponte, questions regarding our Court’s proper
standard of review of CJD-imposed sanctions are non-jurisdictional and must be
adequately preserved and argued by the parties before we may address them. Here,
Appellant’s unadorned, single-sentence argument, which cites to none of the
constitutional provisions the majority interprets, fails to preserve an issue of such
constitutional import.
Accordingly, while I join the majority in large measure, I do not believe that the
question of whether our Court has the authority to determine that a sanction is
“warranted by the record” is before us. I would withhold any such a determination until
we are presented with a case raising this issue, with focused advocacy.
[J-49A-2017] [MO: Saylor, C.J.] - 6