Matter of Cunningham

ZAPPALA, Justice,

concurring.

Although I concur in the result reached by the majority, *451 the extreme importance of the matter 1 as well as logic and common sense compel me to write separately. I fear that the majority’s confusion of the Constitution’s words “suspension” and “removal” has emasculated an otherwise viable means vested by the People of this Commonwealth to aid the judiciary in the appropriate disciplining of its justices, judges, and district justices. Furthermore, I am deeply concerned that the majority has centered its inquiry not on the activities of the jurist, but on those who would take advantage of him.

The Code of Judicial Conduct governs the activities of jurists. It is not a means of regulating the behavior of others by exerting control over them through our judicial officers. There will always be individuals who for their own motives will seek to manipulate and gain advantage of public officials. The public’s faith in the judiciary is not undermined by self-serving individuals attempting to challenge or weaken the integrity of the judiciary, but by jurists succumbing to that corrupt influence.

We must be cautious then not to discipline those jurists who are merely the targets of others’ contemptible conduct. The circumstances underlying the disciplinary action we have imposed on the Philadelphia judges involved in these cases do not raise this concern. These Philadelphia judges were not unwitting participants in the Roofers Union’s scheme. Nevertheless, I am troubled that the expansive language of the majority opinion has paved the way for that unfortunate result.

The majority has held that a gift to a friend who is a jurist may be legitimate, “... but only if the donee is able to establish (1) that the gift was given only in connection with that relationship and (2) that the donee is satisfied that the circumstances surrounding the acceptance of the gift would not create a reasonable basis for the donor to believe that the gift places the donor in a position to exert improper *452 influence over the donee in the discharge of his legal duties.” Slip Opinion at 30. This places the jurist in the untenable position of discerning the motives of those whose relationships would not ordinarily cause one to undertake that analysis. Even in the context of the closest social relationship, there is very little which can withstand such scrutiny without seeding doubt that another’s motives are not purely altruistic. It is common experience that the mere existence of social relationship may lead one to believe that he is in the position to exert influence on another. Yet if one of the individuals is a jurist, the other’s conduct must be probed and his motives are immediately suspect. This is unnatural and unreasonable. I would not burden a jurist with this paranoia. The proper focus is on the conduct of the judicial officer as the recipient of a gift, not upon the giver’s motives. Although evidence of the giver’s actions may be relevant to establish whether the acceptance of a gift was improper, the impropriety of the judge’s conduct does not rest upon the giver’s intent.

At the outset of its Opinion, the majority struggles to stretch the meaning of the term “suspension” to include the imposition of a forfeiture of office. I find the analysis by which it does so unnecssary, unwarranted, and unpersuasive.

The Constitution, in Article 5, Section 18, specifies three actions that may be taken regarding a judicial officer whose misconduct has been proven — suspension, removal, and discipline. (A fourth action, compulsory retirement, is specified for conduct interfering with the performance of judicial duties that is less culpable because arising out of disability.) It is readily seen, and is conceded by the majority, that these three punishments vary in degree of severity. In its ordinary and common usage, the term “suspension” connotes a temporary condition, after which the prior condition is resumed. To impose a forfeiture of office is a punishment in addition to, and not subsumed within, the punishment of “suspension” as that term is commonly understood. I find no basis in the language of the Constitution for this *453 Court to order a judicial officer to forfeit his office without ordering that he be “removed” from office. In plain terms, the only constitutionally authorized penalty whereby a judicial officer’s service is terminated is “removal”.

It happens that the Constitution imposes an additional sanction on one who has been removed from office, a perpetual bar to further judicial service. This sanction is not an essential part of the punishment imposed by this Court for misconduct, but is an additional impediment required by the Constitution where one has been removed. To suit its own purposes, however, the majority creates a penalty not found in the constitutional text that undeniably removes a judge from office while avoiding the permanent bar.

The majority attempts to justify its conclusion that the penalty of “forfeiture of office” must be within the discretion given to the Court in Section 18, by expounding on the dire administrative consequences that could flow from an order of suspension without forfeiture of office. In my view our “discretion” is limited to determining which of the prescribed penalties, if any, is appropriate, and does not extend to the formulation of new penalties.

Citing the heavy caseloads of the courts and the need for all judicial offices to be filled and operating efficiently, the majority states that it was never intended under our Constitution that “the injury caused to the system by the misconduct of the offending judge” be compounded by the use of “a punishment that would render the office inoperative.” at 477-478. “Any interpretation of the constitutional sanction of suspension which would preclude the replacement of the offending jurist would serve the interest of the offender and ignore the needs of the offended.” Id. at 478.

I am at a loss to understand how it serves the interest of the offending jurist for his office to remain unfilled during the term of a suspension without pay. 2 Moreover, I do not *454 agree that the needs of the system are ignored if the term “suspension” is interpreted according to its ordinary and common usage. This Court is granted specific authority to authorize temporary assignments of judges from other courts, Article 5, Section 10(a) and from the pool of retired judges who are willing to serve, Article 5, Section 16(c). There are innumerable circumstances in which the courts of this Commonwealth may be required to function with one or more of their offices temporarily unfilled, perhaps for an extended period of time. Temporarily barring a jurist from carrying out the functions of his office need be treated no differently. 3

The majority acknowledges that in the cases where a judge has been removed or compelled to retire, the constitutional scheme explicitly recognizes the vacancy thereby created and “the need to fill the office with one capable and competent to carry out the responsibilities demanded by the position.” at 477-478. Having recognized the need and provided for it in these two instances, logic would indicate that the failure of the Constitution to provide for it in the case of suspension demonstrates that the need is recognized to be not as great or is otherwise provided for. In the “silence” as to the consequences of a suspension, the majority sees an opportunity for the Court to conduct its own assessment of the needs of the system and fashion its own penalties. I see a purposeful restraint. In my view, by providing for the vacancy caused by removal and compulso *455 ry retirement and not making similar provision for the filling of a vacancy caused by other forfeiture of office, the Constitution recognizes that there are no other means by which the judicial office may be forfeited.

It is difficult to trace the precise origin of the penalty of “suspension” in Article V, § 18. Review of the documents circulated prior to and at the Constitutional Convention of 1967-68 reveals essentially two formulations of the proposals as to punishment for misconduct — “any justice or judge may be removed from office or otherwise disciplined for misconduct” and “any judge may also [in addition to impeachment] be removed from office, suspended without pay, or otherwise disciplined for misconduct in office.” In all preliminary drafts and proposals where suspension is referred to, it is in the form of “suspended without pay.” My reading of the documents of the Convention convinces me that the use of the term “suspension” in the final proposal submitted to and approved by the people, was not intended to allow for the expansion of the meaning of the term beyond its ordinary sense of a temporary impediment, but was no more than a stylistic revision, the penalty being set out in Section 17, and the further qualification that it be “without pay” being transferred to Section 16, which deals with compensation.

It strikes me as ironic that the majority is motivated to fashion a hybrid punishment intermediate between “suspension” and “removal” because of the heavy caseloads of the courts. Large caseloads and backlogs are not new; the floor discussions of the 1967-68 Constitutional Convention are replete with descriptions of a heavy backlog of cases, particularly in Philadelphia. The delegates had an intimate familiarity with the problem of overburdened courts. I, therefore, cannot accept the view that the scheme of punishment they crafted, allowing for replacement of the offending jurist in some instances and not in others, must be specially “interpreted” to accommodate this circumstance. Were it not for the magnitude of the corruption whereby so many of the judges of this one judicial district face simulta *456 neous punishment for misconduct, it would not even be questioned but that the system could adapt to function efficiently through a period of the temporary absence of one or more judges, by the reassignment of active judges and assignment of senior judges. (Indeed, that these absences are accompanied by cessation of salary, leaves the budgeted funds available to compensate retired judges called into service.)

Applying the above analysis to the individual cases before us would not change the result in any situation except those of Respondents Porter (No. 120) and Dempsey (No. 123). In those cases, the majority would suspend Respondents and declare their offices forfeited and therefore vacant. As noted, such a disposition creates a new and unwarranted level of discipline. The majority’s review of the record demonstrates sufficient evidence of misconduct to warrant removal of these Respondents as well. On that basis, I would order removal of each of the judges now before the bar of this Court.

. With one fell swoop of the pen, the Court today removes from office more elected officials, to the best of my knowledge, than have been removed from the other branches of government in the history of the Commonwealth.

. Indeed, it would appear that the majority’s “suspension with forfeiture of office” inures more to the benefit of the offending jurist than would suspension without pay for an extended period. A jurist under *454 suspension who remains in office would remain subject to all the constraints of the Code of Judicial Conduct and the Constitution. His activities would necessarily be greatly limited. A suspended jurist who has forfeited his office, however, would be removed from the supervisory authority of this Court and be free to engage in any legitimate undertaking available to him. Ironically, this could include immediately running for election to the same office vacated by his forfeiture.

. By way of example, it is noted that the Fifth Judicial District (Allegheny County) is presently operating with four seats vacant, with no certainty as to the time in which they will be filled. This amounts to double the loss of judicial manpower that would be suffered in Philadelphia were the two respondents the majority requires to forfeit their offices merely suspended.