Proceeding before the Court of Common Pleas of Philadelphia v. Johnson

McKEE, Chief Judge,

concurring.

I agree with the Majority’s conclusions that this action was properly removed under the federal officer removal statute, 28 U.S.C. §§ 1442(a)(1), (d)(1) (2012), and that any state law cause of action is preempted. I therefore join the Majority Opinion in its entirety. .Nevertheless, I feel compelled to write separately to amplify the context of this dispute and to stress that the Commonwealth is not actually proceeding on a state law theory at all, despite its claims to the contrary.

I. Context

Although it does not alter our legal analysis of the issues before us, it is difficult not to wonder why the Commonwealth is attempting to bar concededly qualified defense attorneys from representing condemned indigent petitioners in state court. A victory by the Commonwealth in this suit would not resolve the legal claims of these capital habeas petitioners. Rather, it would merely mean that various cash-strapped communities would have to shoulder the cost • of paying private defense counsel to represent these same petitioners, or that local pro bono attorneys would have to take on an additional burden. And it would surely further delay the ultimate resolution of the petitioners’ underlying claims.

Pennsylvania law instructs that, after the conclusion of a death-sentenced prisoner’s direct appeal, “the trial judge shall appoint new counsel for the purpose of post-conviction collateral review, unless ... [among other things] the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.” Pa. R.Crim. P. 904(H)(1)(c). Death-sentenced petitioners are thus entitled to counsel during PCRA proceedings, and they may be represented by their counsel of choice. Id. In the cases consolidated for this appeal, the Federal Community Defender asserts that its attorneys, members of the Pennsylvania bar, are functioning in that capacity — counsel of choice for their condemned clients. The Commonwealth does not challenge that representation.

As my colleagues in the Majority note, the genesis of these disqualification motions was a concurring opinion by then-Chief Justice Castille in Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244 (2011) (Cas-tille, C.J., concurring).1 Maj. Op. 462-63. The opinion severely criticized the tactics, motives, integrity, and even the veracity of Federal Community Defender attorneys who had intervened in state court PCRA proceedings on behalf of a condemned prisoner. It is rife with harsh critiques of the Federal Community Defender. See Spotz, 610 Pa. 17, 18 A.3d at 334 (Castille, C.J., concurring) (“There is no legitimate, ethical, good faith basis for [their] obstreperous briefing.”).2 Chief Justice Castille *479lamented in his concurring opinion in Spotz that the Federal Community Defender’s ■ “commitment of ... manpower” in the PCRA proceedings was “something one would expect in major litigation involving large law firms.” Spotz, 610 Pa. 17, 18 A.3d at 332 (Castille, C.J., concurring). However, I am not quite sure why the same kind of meticulous devotion of resources should not be available to someone who has been cpndemned to die by the state and who seeks to challenge the legality of that punishment. State post-conviction proceedings are a critical stage of litigation for those challenging their capital murder convictions or death sentences. Surely, these cases are not less important than the “high dollar” litigation to which large law firms so often devote substantial resources.3

The ultimate fate of a habeas petitioner in federal court depends to a very large extent on the performance of counsel in state post-conviction proceedings. Indeed, as appreciated by my colleagues, “state proceedings are the central process, not just a preliminary step for a later federal habeas proceeding.” Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). The state post-conviction stage is often a habeas petitioner’s first opportunity to raise claims that certain constitutional rights have been violated, and many such claims require significant investigation. See Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 1317, 182 L.Ed.2d 272 (2012) (noting that, in that case, “the initial-review collateral proeeed-ing [was] the first designated proceeding for a prisoner to raise a [Sixth Amendment] claim of ineffective assistance at trial”); Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 735 (2002) (noting that the practice of most state and federal courts is to “only review those claims on direct appeal that can be adequately reviewed on the existing record[,]” and deciding that ineffective assistance of counsel claims are properly presented in state collateral proceedings). With very limited exceptions, a petitioner must raise all claims during state post-conviction proceedings or forfeit review of those claims in federal court. 28 U.S.C. § 2254(b)(1) (2012); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). Any federal review is almost always limited to the results of the investigations that occurred during state post-conviction proceedings.

Moreover, as any experienced practitioner appreciates, it is exceedingly difficult to introduce additional evidence in support of these claims in federal court. 28 U.S.C. § 2254(e)(2). Thus, after a state court has ruled on the merits of a condemned petitioner’s post-conviction claim, “the die is cast” — as that ruling will only be disturbed during federal habeas corpus review if the state court’s judgment “was contrary to, or involved an unreasonable application of, clearly established Federal law.” Id. § 2254(d)(1). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Thus, *480even if a federal court has a firm belief that the state court’s ruling on a petitioner’s federal claim was incorrect, the federal court usually must defer to the state ruling. See Harrington, 562 U.S. at 101, 131 S.Ct. 770 (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” (citation omitted)). It is readily apparent to the lawyers who litigate and the judges who decide these cases that procedural and substantive mistakes of state post-conviction counsel can destroy the chances of vindicating even meritorious constitutional claims in federal court.

Conversely, a thoroughly investigated and well-presented petition for post-conviction relief in state PCRA proceedings can ensure that petitioners’ claims are fully heard and appropriately decided on the merits, rather than going unresolved in federal court because of earlier procedural defects. In addition , to the important investigative and substantive legal work that an attorney must undertake during post-conviction proceedings in state court, attorneys must fastidiously comply with state procedural rules and the one-year statute of limitations contained in the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) — which can be notoriously difficult to calculate — or risk being barred in federal court on procedural grounds. See 28 U.S.C. § 2244(d); Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“The [independent and adequate state ground] doctrine applies to bar federal ha-beas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.”); see also Pace v. DiGuglielmo, 544 U.S. 408, 416 n. 6, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (discussing different means of calculating AEDPA’s one-year limitations period).4

The labyrinthine complexity of federal habeas review has caused one noted jurist to conclude that AEDPA’s “thicket of procedural brambles” is one of the most difficult legal schemes for an attorney to navigate. In re Davis, 565 F.3d 810, 827 (11th Cir.2009) (Barkett, J., dissenting). Indeed, AEDPA’s procedural obstacle course compares to the notoriously vexing Rule Against Perpetuities insofar as both enmesh the unwary (or unseasoned) lawyer in a procedural minefield that can put him or her out of court.5 Even if a petitioner’s claims are eventually heard in federal court, initial missteps can increase the expense and time of the litigation there. See, e.g., Maples, 132 S.Ct. at 916-17 (not*481ing that the issue of-whether a petitioner could excuse his procedural default, caused by negligent attorneys’ missing a state court filing deadline, had been litigated extensively below). Deciding issues of life and death on such procedural intricacies threatens to undermine trust and confidence in the accuracy of the criminal justice system. See Brendan Lowe, Will Georgia Kill an Innocent Man?, Time, July 13, 2007, http://content.time.com/time/ nation/article/0,8599,1643384,OO.html (explaining that the requirements of AEDPA made it difficult for petitioner Troy Davis to litigate his claim of actual innocence).

Systematic attempts to disqualify competent Federal Community Defender attorneys from representing clients in state post-conviction proceedings are all the more perplexing and regrettable when one considers the plethora of literature discussing how inadequate representation at the state post-conviction stage increases the cost of the criminal justice system and creates a very real risk of miscarriages of justice. See Ken Armstrong, Lethal Mix: Lawyers’ Mistakes, Unforgiving Law, Wash. Post, Nov. 16, 2014, at Al. For example, many petitioners have been barred from federal court because their lawyer missed a deadline. See id. There are numerous reasons why this should concern prosecutors as much as defense counsel — not the least of which is that some actually innocent petitioners only gain relief at the federal habeas corpus stage of their post-conviction appeals process. See id. (noting, by way of example, that “of the 12 condemned prisoners who have left death row in Texas after being exonerated since 1987, five of them were spared in federal habeas corpus proceedings”).6 There were at least 125 exonerations in 2014 — the highest in recorded history. See Nat’l RegistRY of ExoneRations, Exon-erations in 2014 at 1 (2015), available at https://www.law.umich.edu/special/ exoneration/Documents/Exonerations_in_ 2014_report.pdf. Access to the Great Writ can be particularly critical to death-sentenced petitioners, some of whom may have meritorious claims of actual innocence.7

Against this backdrop, the Federal Community Defender has apparently concluded that representing these petitioners at an earlier stage of their post-conviction appeals process is consistent with its purpose, and the Administrative Office of the United States Courts has neither voiced an objection, nor chosen to interfere with this representation. Rather, the Commonwealth (i.e., opposing counsel) is attempting to disqualify highly qualified defense counsel from representing these death-sentenced petitioners in state court. The Commonwealth is obviously not objecting because the Federal Community Defender is providing inadequate representation and thereby denying the petitioners the constitutional rights that all parties seek to respect. Rather, the objection seems to be *482that the Federal ’Community Defender is providing too much defense to the accused. To again quote the criticism from the Spotz concurrence, they are approaching the litigation the same way a large law firm might approach representation of a client in “major litigation” concerning large sums of money. See Spotz, 610 Pa. 17, 18 A.3d at 332 (Castille, C.J., concurring).

II. The Authority for the Disqualification Motions

The Majority Opinion notes that it is “unclear” whether the Orders in this case were actually issued pursuant to the “named source of state authority,” Article V, § 10(c) of the Pennsylvania Constitution. Maj. Op. 475. It is not only unclear, it is quite dubious. I separately address this issue to highlight the absence of authority to support the Commonwealth’s argument and to emphasize the extent to which the legal underpinnings of the Commonwealth’s argument have shifted during this litigation. The Commonwealth’s current theory appears to be that state law authorizes promulgation of new disqualification rules targeted at specific Pennsylvania attorneys in specific cases. Although both the weakness of that position as well as the extent to which the Commonwealth has previously relied on a different theory are worth emphasizing, I nevertheless agree with the Majority’s conclusion that the Commonwealth’s claims are preempted, even if they were properly based in state law.

A. The Commonwealth’s legal rationales

The Commonwealth did not initially rely on the Pennsylvania Constitution in seeking disqualification of the Federal Community Defender attorneys. Rather, the Commonwealth claimed it was [redacted] seeking to disqualify the Federal Community Defender from appearing in state court because of an alleged misuse of federal funds. The district court in Mitchell, one of the cases that was consolidated for this appeal, accurately described the Commonwealth’s litigation theory as follows:

The Commonwealth’s seven-page motion devoted almost two pages of citations to its allegation that the presence of federally-funded [Federal Community Defender] lawyers in Mitchell’s state case was unlawful under federal law. Mot. for Removal ¶ 6. It asserted no corollary state law cause of action, and it made no reference to an attorney disqualification proceeding or to any violation of the rules of professional conduct. The motion offered a single state law citation: it pled jurisdictional authority to pursue the matter under Section 10(c) of the state Constitution, the general provision endowing the Pennsylvania Supreme Court with the right to govern its courts. Id. ¶ 7. Even this citation, however, was secondary to its assertion, earlier in the paragraph, that it had concurrent jurisdiction to enforce federal law. Id.

In re Pennsylvania, No. 13-1871, 2013 WL 4193960, at *15 (E.D.Pa. Aug. 15, 2013) (footnote omitted) [hereinafter Mitchell ]. As the Mitchell court noted, § 10 of the Pennsylvania Constitution was only used to justify opposition to the Federal Community Defender’s representation of capital defendants after the Federal Community Defender removed this action to federal court. However, even then, § 10 was more of a passing reference than the foundation of the Commonwealth’s arguments in the district courts.

Article V, § 10(c) of the Pennsylvania Constitution allows the Pennsylvania Supreme Court to make “general rules” to govern the state court system. Pa. CONST., art. V § 10(c). However, § 10(c) is not cited at all in the Commonwealth’s briefs to this Court. Instead, the Common*483wealth stated generally that the disqualification motions were rooted in the “sovereign authority of Pennsylvania, including its power to supervise the practice of law under Article V, § 10 of the State constitution.” Com. First Step Br. 38. It later cited to Article V, § 10(a) of the Pennsylvania Constitution as the basis for the state’s sovereign power to “regulatef ] the practice of law in Pennsylvania State courts.” Com. Third Step Br. 37; see also id. at 34.

By contrast, the basis for the Commonwealth’s challenge to the Federal Community Defender at the beginning of this litigation was federal law. The rules articulated by the state Supreme Court in these consolidated cases differed slightly in their wording, but the main thrust of each was as follows:

If federal funds were used to litigate the PCRA [proceeding] ... the participation of the [Federal Community Defender] in the case may well be unauthorized by federal court order or federal law. Accordingly, on remand, the PCRA court is directed to determine whether to formally appoint appropriate post-conviction counsel and to consider whether the [Federal Community Defender] may or should lawfully represent appellant in this state capital PCRA proceeding.

Maj. Op. 465 (quoting Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1151 (2012)). Not only was federal law the initial basis for these Orders, it was the only justification given in state court for disqualifying the Federal Community Defender. Thus, far from proceeding on a state law theory, the Commonwealth originally claimed that its opposition to the Federal Community Defender’s representation was based on the Commonwealth’s desire to enforce federal law.

The Commonwealth concedes that it lacks a right of action under the Criminal Justice Act, 18 U.S.C. § 3006A el seq., and I agree with the Majority’s conclusion that the Commonwealth may therefore not “claim a direct violation of federal law.” Maj. Op. 475. Because the Commonwealth has no right of action to enforce federal law directly, it also does not have the authority to enforce compliance with federal law indirectly through a new state rule targeted at specific attorneys. See Astra USA, Inc. v. Santa Clara Cnty., Cal., 563 U.S. 110, 131 S.Ct. 1342, 1345, 179 L.Ed.2d 457 (2011) (noting that direct and indirect legal challenges are “one and the same” and must be treated as such, “[n]o matter the clothing in which [litigants] dress their claims”) (quoting Tenet v. Doe, 544 U.S. 1, 8, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (internal quotation marks omitted)). The post hoc nature of the Commonwealth’s assertion that the rules aimed at the Federal Community Defender were actually made pursuant to § 10(c), and the absence of supporting authority for this theory, seriously undermine the credibility of that assertion.

B. State law cause of action

As my colleagues appreciate, and as I explained at the outset, the impetus for this litigation, and ultimately this new “rule,” was the concurring opinion in Spotz that accused the Federal Community Defender in the PCRA litigation of being “abusive,” “obstructionist,” and “contemptuous.” 610 Pa. 17, 18 A.3d at 330-33 (Castille, C.J:, concurring). It also referred to the alleged use of federal funds for that purpose as “perverse.” Id. at 331.8 The Pennsylvania Supreme Court then promulgated what amounts to a new *484“rule” in eases where the Federal Community Defender was representing a PCRA petitioner: that -the lower courts should consider disqualifying counsel if they conclude that the Federal Community Defender is misusing federal funds. See, e.g., Sepulveda, 618 Pa. 262, 56 A.3d at 1151. However, because this rule bears no resemblance to the procedural rules that the state Supreme Court has historically promulgated or enforced pursuant to § 10(c), the proposition that § 10(c) actually provides authority for the disqualification rule is tenuous at best.

The Pennsylvania Constitution states, in relevant part, that “[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant....” Pa. Const., art. V § 10(c). Though § 10 gives the state Supreme Court authority to “exercise general supervisory ... authority” over the courts and to prescribe “general rules” regulating the courts, nothing about the rules announced in these cases is the least bit “general.” Pa. Const., art. V § 10(a), (e). Instead, as my colleagues note; the Pennsylvania Supreme Court decreed that “if the Federal Community Defender fails to show that its actions representing its clients are entirely ‘privately financed’ with non-federal funds, the state PCRA court is to disqualify the Federal Community Defender as counsel.” Maj. Óp. 475. Rather than being a general rule, the Order that energizes this dispute is aimed squarely and solely at the Federal Community Defender.

The Pennsylvania Supreme Court has exercised its § 10 power in a number of different ways, but it has not previously promulgated a targeted rule like the one that is purportedly present here. Moreover, its previous exercises of § 10 authority are so dissimilar from this case that they provide little support for the Commonwealth’s current theory. For example, the Court has promulgated and enforced general rules of civil and appellate procedure.9 It has exercised its § 10(c) power to regulate judges, attorneys, and the practice of law by creating and enforcing the Code of Judicial Conduct, which regu*485lates the activity of judges,10 and by defining and regulating the practice of law in Pennsylvania.11 It has also maintained its exclusive authority over the regulation of attorneys in the state by invalidating legislation that attempted to regulate this area.12 In a more unique use of this power, the state court established procedures to implement a new constitutional rule announced by the United States Supreme Court.13 Taken together, these cases stand for the proposition that the state court, ethics board, or other appropriate entity can make and enforce clearly-established, generally applicable rules of conduct to govern the conduct of judges and lawyers in state courts.

In re Merlo, the main case cited by the Commonwealth in support of its actions here, is an illustrative example of the Pennsylvania Supreme Court’s § 10 power. 17 A.3d 869 (2011). Though the Commonwealth asserts that Merlo supports its claim, the run-of-the-mill attorney discipline case is so dissimilar from the instant case that it actually undercuts the Commonwealth’s position. In Merlo, a local judge who had been suspended for absenteeism and for being abusive towards parties petitioned to set aside her suspension on the ground that the Supreme Court did not have the power to suspend her. Id. at 871. The state Supreme Court had suspended the judge after concluding that the Judicial Conduct Board had probable cause to file a formal charge against her. That charge asserted various violations of the Rules Governing Standards of Conduct of Magisterial District Judges. In its decision, Pennsylvania Supreme Court explained that an earlier amendment to the state constitution had not stripped it of its general and broad power to supervise attorneys and enforce the state ethics rules. Id.

Merlo thus demonstrates how the Pennsylvania Supreme Court regulates attorney discipline: by applying general rules of conduct equally to all lawyers. The additional cases cited by the' Commonwealth also generally support the position that the Pennsylvania Supreme Court has retained the power to regulate the conduct of lawyers through enforcement of the state’s ethical and conduct rules. See Office of Disciplinary Counsel v. Jepsen, 567 Pa. 459, 787 A.2d 420, 424-25 (2002) (holding that the Court of Judicial Discipline does not have exclusive authority over regulating lawyers’ conduct).14 It is clear that *486Pennsylvania courts and the state disciplinary board have the authority to discipline any attorney whose conduct so transcends the bounds of propriety as to be sanctionable. However, none of the generally applicable rules that regulate the conduct of Pennsylvania lawyers were even cited in the disqualification orders before us.15 To the extent that the Federal Community Defender’s zealousness violates generally-applicable codes of conduct, the appropriate remedy would appear to be enforcing those codes of conduct in specific instances against specific attorneys rather than systematically depriving condemned prisoners of their counsel of choice as a matter of policy.

The issue here is not whether the Pennsylvania Supreme Court can enforce Pennsylvania’s ethical rules; it surely can, but the Disqualification Orders in these cases were not issued pursuant to a charge that the Federal Community Defender violated a specific rule of conduct. Rather, the question here is what rule or law is actually being enforced. The Federal Community Defender argues that the Commonwealth is impermissibly trying to enforce federal law. The Commonwealth now relies upon a state law cause of action. However, the Commonwealth has not directed us to a previous instance where § 10 has been used to support what it attempts in this case: enforcement of a specific rule that is aimed directly at a single legal office or attorney based on conduct which has not been found to violate any of Pennsylvania’s general rules governing the conduct of lawyers. The absence of any such citation is understandable, as I have not been able to find any such case. Therefore, even if it were not preempted, the purported disqualification rule here would not be authorized under state law.16

III. Conclusion

Though this dispute has been cloaked in claims of state authority and appeals to principles of federalism, I am unfortunately forced to conclude that this suit actually arises out of simple animosity or a difference in opinion regarding how capital cases should be litigated. Given the costs of capital litigation and the very real *487stakes for the petitioners in these cases, it is extremely regrettable that this debate has now played out in our judicial forum.

. Then-Chief Justice Castille was joined by then-Justice McCaffery and joined in part by then-Justice Melvin. Although each of these jurists has since left the Pennsylvania Supreme Court, I refer to them as “Chief Justice” or "Justice” for the sake of simplicity.

. The opinion further described the representation as abusive and inappropriate. See Spotz, 18 A.3d at 330 (Castille, C.J., concurring) ("[I]it is time to take more seriously requests by the Commonwealth to order removal of the Defender in cases where, as is becoming distressingly frequent, their lawyers act inappropriately.”); id. ("[I]t is not clear that the courts of this Commonwealth are obliged to suffer continued abuses by federal 'volunteer’ counsel paid by the federal *479courts.”); id. at 333 ("The Defender’s briefing in this Court is similarly abusive.”); id. at 335 (noting that, although the presence of the Federal Community Defender "spares Pennsylvania taxpayers the direct expense of state-appointed counsel])] ... that veneer ignores the reality of the time lost and the expenses generated in the face of the resources and litigation agenda of the Defender”); id. at 336 (referring to "the morass that is the Defender's brief”).

. In making this point, I do not mean to minimize the heinous nature of the crimes which many of the Defender’s clients were convicted of. However, that is simply not the point, nor can it be relevant to the clients’ entitlement to counsel under our system of justice.

. "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. A procedural default caused by state post-conviction counsel’s mistake may also be excused if agency relationship between the lawyer and client had been severed, see Maples v. Thomas, - U.S. -, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), or (in more limited circumstances) if the state post-conviction counsel was unconstitutionally inadequate, see Martinez v. Ryan, - U.S. -, 132 S.Ct. 1309, 1317, 182 L.Ed.2d 272 (2012). However, relief on the basis of inadequate sfate post-conviction counsel remains difficult to obtain. See Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ("Surmounting Strickland's high bar is never an easy task.”).

. See W. Barton Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv. L.Rev. 1318, 1322 (1960) ("[T]he esoteric learning of the Rule Against Perpetuities is, apart from dim memories from student days, a monopoly of lawyers who deal in trusts and estates.”).

. See also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) ("[W]hile [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”).

. This is not to suggest that state courts are less capable of ruling on constitutional claims, or that lawyers other than the Federal Community Defender are less capable of litigating them. However, it would be naive to think that the investigation, presentation, and preservation of these claims is a simple task, or that the skill with which the claims are presented to state and federal courts has no effect on how the courts resolve those claims. The petitioners in these cases understand the stakes of this litigation, and they have chosen the Defender as their counsel of choice. Given that context and the lack of sanctionable misbehavior by the Federal Community Defender, I merely urge that we respect that decision.

. The Commonwealth cites to the Spotz line of reasoning in its brief to this Court, arguing that the Federal Community Defender has "pursued a strategy to overwhelm the state courts with volumes of claims and pleadings, many simply frivolous, a strategy *484which burdens prosecutors and can shut down a trial court for weeks.” Com. First Step Br. 48 (internal quotation marks omitted). The criticism leveled at the Federal Community Defender in Spotz, and repeated by the Commonwealth in its briefing, goes beyond accusations of zealousness or merely over-trying a case. The Chief Justice and the concurring Justices accuse the Federal Community Defender of engaging in tactics that are intended to obstruct the state’s judicial process and thereby halt the state's attempt to enforce the death penalty. See Spotz, 610 Pa. 17, 18 A.3d at 331 (Castille, C.J., concurring). Later, in response to a motion asking him to withdraw that concurring opinion, Chief Justice Castille issued a Single Justice Opinion on Post-Decisional Motions, which reaffirmed the importance of "principled representation of indigent capital defendants” as being "lawyering in the best tradition of the bar.” Commonwealth v. Spotz, 99 A.3d 866, 867 (2014) (Castille, C.J.). However, the opinion again described representation of the Federal Community Defender as advancing "an agenda beyond mere zealous representation, one which routinely pushes, and in frequent instances, as here, far exceeds ethical boundaries” in pursuit of its "global agenda.” Id. at 867. The opinion then sets forth examples to support its accusation that the Federal Community Defenders "are at bottom gaming a system and erecting roadblocks in aid of a singular goal — keeping [their client] from being put to death.” Id. at 868 (emphasis in original).

. See Commonwealth v. Rose, 623 Pa. 241, 82 A.3d 426 (2013); Laudenberger v. Port Auth. of Allegheny Cnty., 496 Pa. 52, 436 A.2d 147, 155 (1981) (referring to the state Supreme Court's "constitutional rule-making authority”)-

. See Commonwealth v. Melvin, 103 A.3d 1, 14 (Pa.Super.Ct.2014).

. See Lenau v. Co-eXprise, Inc., 102 A.3d 423, 432-33 (Pa.Super.Ct.2014).

. See Wajert v. State Ethics Comm'n, 491 Pa. 255, 420 A.2d 439, 442 (1980).

. See Commonwealth v. Hackett, 99 A.3d 11, 26 (Pa.2014) (interpreting Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that intellectually disabled people could not be executed, but which initially gave states the ability to establish procedures to assess whether capital defendants were intellectual disabled).

. The cases relied on by the Commonwealth also explain that courts themselves, not merely the state disciplinary board, have the power to enforce the state ethical rules against lawyers who appear before them. Slater v. Rimar, Inc., 462 Pa. 138, 338 A.2d 584, 587 (1975) (explaining that a judge may disqualify an attorney appearing before him who is conflicted out of representing his client); Am. Dredging Co. v. City of Phila., 480 Pa. 177, 389 A.2d 568, 571-72 (1978) (noting that a trial court has the power and duty to ensure that lawyers appearing before it comply with the Code of Professional Responsibility, and considering the merits of whether an attorney betrayed the confidence of a client). Finally, the authority cited by the Commonwealth makes clear that a state's ability to regulate lawyers is undoubtedly one of its important roles — though that power is not without limits. See, e.g., Leis v. Flynt, 439 U.S. 438, 442-43, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979) (holding that out-of-state attorneys did not have a *486federal constitutional right to appear pro hac vice in Ohio court); Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691, 2694, 53 L.Ed.2d 810 (1977) (holding that a state rule barring lawyers from advertising their services was not challengeable under the Sherman Act but also that the state rule, as applied, violated the attorneys' First Amendment free speech rights). The Commonwealth also referred to Hoover v. Ronwin, 466 U.S. 558, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984), and Goldfarb v. Va. State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), which involved challenges under the Sherman Act to the grading of the Arizona bar exam and a fee schedule published by a Virginia county bar, respectively. Neither supports the Commonwealth's argument that its state constitution is a proper basis of authority for the disqualification motions in to this case.

. The Commonwealth argued at a hearing in the district court in the Mitchell litigation that Pennsylvania Rule of Professional Conduct 8.3(a) was the true basis of the disqualification motion. That rule "instructs attorneys to inform ‘the appropriate professional authority’ if he or she 'knows that another lawyer has committed a- violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer.’ " Mitchell, 2013 WL 4193960, at *14 (citing 204 Pa.Code § 8.3(a)). This is the only mention of an existing Rule of Professional Conduct of which I am aware. The Commonwealth appears to have abandoned this argument on appeal.

. Like my colleagues, I recognize that the Pennsylvania Supreme Court is the ultimate arbiter of the meaning of the state constitution. However, neither the Majority Opinion nor this opinion relies on an interpretation of state law. Moreover, as explained, federal law preempts any state law cause of action.