Commonwealth v. Vartan

KELLEY, Judge,

dissenting.

I respectfully dissent. Contrary to the majority’s holding, I believe that, based on the unique factual circumstances of this case, this court should transfer this matter to our Supreme Court for disposition.

Underlying the issue of whether this court should sustain or dismiss Vartan’s preliminary objections to the AOPC’s amended petition for review is the validity of a subpoena issued to the Chief Justice of the Supreme Court of the Commonwealth of Pennsylvania. This subpoena was issued by the board, as authorized by section 7 of the Act of May 20, 1937, P.L. 728, as amended, 72 P.S. § 4651-7.1

I believe that the language of our constitution grants the Supreme Court unquestioned overseeing power as the governing body of the judiciary. As the governing body, the Supreme Court operates through the AOPC. Accordingly, it is the AOPC that is now before this court seeking to prohibit the subpoena issued to the Chief Justice.

Article V, Section 10 of the Pennsylvania Constitution governing judicial administration provides that the Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace. Pa. Const, art. V, § 10(a). Further, Article V, Section 10 provides that “[t]he Supreme Court shall have the power to prescribe general rules governing practice, *1164procedure and conduct of all courts ... and the administration of all courts and supervision of all officers of the judicial branch... Pa. Const, art. V, § 10(e).

Based on Article V, section 10 of our constitution, I believe the Supreme Court has inherent original jurisdiction under its authoritative power to adjudicate the question of the application of a subpoena issued to a member of the Supreme Court. Article V, section 2 of our constitution states that the Supreme Court “shall be the highest court of this Commonwealth and in this court shall be reposed the supreme judicial power of the Commonwealth.” Pa. Const, art. Y, § 2. Moreover, section 502 of the Judicial Code provides that “the Supreme Court shall have and exercise the powers vested in it by the Constitution of Pennsylvania, including the power generally to minister justice to all persons and to exercise the power of the court, as fully and amply, to all intents and purposes, as the justices of the court of King’s Bench....” 42 Pa.C.S. § 502.

I, therefore, assert that a literal reading of the constitutional language sets forth that persons of the unified judicial system are also subject to the Supreme Court’s jurisdiction not just the so-called courts of the unified judicial system. Since the Chief Justice is the recipient of the subpoena, the determination of the subpoena’s validity should only be exercised by the Supreme Court.

I believe that the Supreme Court’s reasoning in Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985) supports my position. Reilly involved the recusal of a judge and our Supreme Court stated therein that it had the exclusive right to supervise the conduct of all courts and officers of the judicial branch of government pursuant to Article V, Section 10(c) of our constitution. Reilly, 507 Pa. at 218, 489 A.2d at 1298. Based on this exclusive right, the Supreme Court in Reilly rejected the Superior Court’s attempts to create new standards of review on, inter alia, recusal motions “as unwarranted intrusions upon this Court’s exclusive right to supervise the conduct of all courts and officers of the judicial branch.” Id. at 219, 489 A.2d at 1298.

Further, I believe that the majority’s reliance on Municipal Publications v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985) is greatly misplaced. The distinguishing factor herein is that the subpoena in question has been issued to the Chief Justice in order to ascertain his personal participation and knowledge with respect to the underlying dispute. As a result, he is considered a crucial witness.

The Supreme Court in Municipal Publications noted most significantly that the powers of the Supreme Court, as set forth in statute, are that the inferior courts have not been vested by legislation with King’s Bench powers. Rather, the Supreme Court pointed out, the onus of general superintendence over the courts of this Commonwealth has been allocated to the Supreme Court. 507 Pa. at 199, 489 A.2d at 1286. This statement is imperatively important since the majority herein relies exclusively on the Supreme Court’s power as enunciated in Municipal Publications in determining that this Court has jurisdiction in this matter.

While I agree that a governmental administrative body, such as the board herein, is not part of the “unified judicial system” as that term is defined in section 301 of the Judicial Code, 42 Pa.C.S. § 301, I disagree, based on the chain of command set forth in Article V, section 10 of our constitution that this Court, and not the Supreme Court, has jurisdiction herein. Although this Court has its own areas of jurisdiction as conferred by statute, this Court is still subject to the supervisory powers of the Supreme Court. In light of this exclusive right possessed by the Supreme Court, I fail to see how the Supreme Court could possibly be without jurisdiction when the Commonwealth Court is cloaked with jurisdiction over the same matter. To deny the Supreme Court that same power of authority that is statutorily bestowed upon this court is beyond my comprehension and logic.

Accordingly, given the unique factual circumstances found herein, specifically the fact that the subpoena in question has been issued to the Chief Justice of our Supreme Court, I would sustain Vartan’s first prelimi*1165nary objection and transfer this matter to the Supreme Court for disposition.

. Section 7 of this act empowers the board to issue subpoenas and to require the attendance of witnesses and the production of books, documents, and papers pertinent to any cause before the board. 72 P.S. § 4651-7. Section 7 provides further that any person who refuses to obey such subpoena may be punished for contempt of court. Id.