# In Re Appeal of Larsen

> United States Special Tribunals of Pennsylvania · October 24, 2002 · 571 Pa. 457

URL: https://www.frixlaw.com/law-library/cases/9746203

## Case

- **Full name:** In Re Appeal of Rolf LARSEN, Appellant
- **Court:** United States Special Tribunals of Pennsylvania
- **Decided:** October 24, 2002
- **Citations:** 571 Pa. 457; 812 A.2d 640
- **Precedential status:** Published
- **Opinion:** Concurring in part by Bowes
- **Judges:** Hudock, Elliott, Friedman, Stevens, Todd, Klein, Bowes
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746203

## Opinion text

Concurring and dissenting opinion
by BOWES, J.
I join in the learned opinion of the majority with regard to the issue of the jurisdiction of the Special Tribunal. I further join in the majority decision that the sanctions of removal from office and preclusion from holding future office have been rendered moot by the prior rulings of the trial court and the Pennsylvania Senate, and that those portions of the Order of the Court of Judicial Discipline should be reversed.
I respectfully disagree with the majority view regarding the power of the Court of Judicial Discipline to impose the sanction of disbarment from the practice of law and join in the well-articulated Concurring Opinion of Judge Corréale Stevens. I believe that the case of Office of Disciplinary Counsel v. Jepsen, 567 Pa. 459 , 787 A.2d 420 (2002), makes clear that there are two parallel tracks for the imposition of discipline upon a judicial officer pertaining to the practice of law. Therein, the Supreme Court stated that “both [the Disciplinary Board and the Court of Judicial Discipline] possess constitutionally conferred authority to entertain charges filed against a judicial officer who commits misconduct during the practice of law. Each tribunal is likewise capable of determining the appropriate discipline.” Id. at 464 , 787 A.2d at 423 . Jepsen involved the issue of wrongful conduct arising from the practice of law by a district justice, and the sanction at issue therein was disbarment, albeit consensual.
In support of the finding that the Court of Judicial Discipline had authority to entertain charges and determine appropriate discipline, the only language that could provide a basis for the sanction of disbarment is the language contained in the Pennsylvania Constitution, article 5, § 18(b)(5), which states that “a decision of the [Court of Judicial Discipline] may order removal from office, suspension, censure or other discipline *487 as authorized by this section and as warranted by the record.” (Emphasis added). I believe, as apparently did the Jepsen court, that this language encompasses the discipline of disbarment.
With regard to discipline imposed on a justice, the Pennsylvania Constitution further provides that a justice shall have the right to appeal to a special tribunal as authorized by article 5, § 18(c)(1). That section states that “the special tribunal shall hear and decide the appeal [of a final adverse order of discipline] in the same manner in which the Supreme Court would hear and decide an appeal from an order of the court.” Pa. Const, art. 5, § 18(c)(1). I find support for my view that the Court of Judicial Discipline has the ability to disbar a justice based on the fact that disbarment is specifically referenced within article 5 of the Pennsylvania Constitution, which provides that, “[A] justice ... disbarred as a member of the bar of the Supreme Court or removed under this section shall forfeit automatically his judicial office and thereafter be ineligible for judicial office.” Pa. Const, art. 5, § 18(d)(3). This reference within the very article that creates the Court of Judicial Discipline and authorizes that tribunal to impose discipline upon a Supreme Court justice compels the conclusion that disbarment falls within the ambit of that court’s power.
I further believe, for the following reasons, that it is fitting and proper for sanctions, including disbarment if appropriate, to be imposed in these proceedings rather than in proceedings before the Supreme Court. A justice or, as in this case, a former justice, should not be judged by members of the court with whom he served; indeed, in my opinion this tribunal was established and endowed with the power to review sanctions imposed against a justice of the Supreme Court for this very reason. The citizens of this commonwealth, in voting to amend the Constitution and create a special tribunal, clearly sought to provide an independent and impartial venue for the review of discipline imposed upon a fallen justice. Without such a tribunal, it is easily foreseeable that the specter of recusal could result in the inability of the Supreme Court to *488 act. Although the Supreme Court has exclusive jurisdiction to regulate the practice of law pursuant to the Pennsylvania Constitution, the role of the special tribunal with regard to reviewing sanctions upon a justice is also founded upon express constitutional mandate and must be read and interpreted in a common sense fashion. To have one’s colleagues sit in judgment is exactly what the amendment sought to avoid, and the above-cited provisions of article 5 support such a conclusion.
Moreover, I find Judge Robert Byer’s comments in his concurring opinion in In re Larsen, 717 A.2d 39 (Pa.Jud.Disc. 1998), instructive on this issue. Therein, Judge Byer opined that subjecting a judicial officer to two different tribunals for sanctions arising from misconduct in office would be onerous, burdensome, and may result in harsher sanctions than having all sanctions imposed by one tribunal. He observed, “It makes better sense for judicial officers who are members of the bar and who are charged with violations of both the Code of Judicial Conduct and the Rules of Professional Conduct to face only a single proceeding before [the Court of Judicial Discipline] and to have all sanctions imposed at once, instead of proceedings both before this Court and the Disciplinary Board, with separate appellate review in the Supreme Court subject to different standards.” Id. at 51-53 (Byer, J. concurring).
Having determined that the discipline of disbarment is available to the Court of Judicial Discipline, I write separately from Judge Stevens to express my belief that former Justice Larsen did not receive a fair hearing regarding the disbarment issue, and that this matter should be remanded for an evidentiary hearing limited solely to the issue of whether disbarment is an appropriate sanction.
In the present case, the record indicates that former Justice Larsen attempted to introduce evidence in mitigation to avoid disbarment. The evidence was disallowed, and he was disbarred solely based upon his felony conviction. Our Supreme Court has indicated that disbarment does not flow automatically from conviction of a crime. Instead, evidence of mitigat *489 ing circumstances, including psychiatric disorders and the nature of the crime, are relevant in determining whether disbarment is warranted. Office of Disciplinary Counsel v. Christie, 536 Pa. 394 , 639 A.2d 782 (1994); Office of Disciplinary Counsel v. Braun, 520 Pa. 157 , 553 A.2d 894 (1989). Removal from office is a severe sanction; however, equally so is disbarment from the practice of law. Former Justice Larsen should have been permitted to present evidence demonstrating that disbarment was an unsuitable punishment, and his inability to so proceed was an error of law. I would, therefore, reverse and remand for an evidentiary hearing on sanctions.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746203. Public record. Not legal advice.