finding that forgery by MDJ violated Section 18, but not Rule 2A, because pursuing disciplinary charge under Rule 2A “would be in direct conflict with Harrington.'’
How later courts described this case
- finding that forgery by MDJ violated Section 18, but not Rule 2A, because pursuing disciplinary charge under Rule 2A “would be in direct conflict with Harrington.'’
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
Judge MORRIS.
I concur in the conclusion that Respondent is subject to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution.
I also agree with the analysis concluding that Respondent’s conduct is not covered by Article V, § 17(b) — dealing with “activity prohibited by law” — since the plain wording and context indicate that the relevant portion of that Section applies to “justices and judges,” but not to justices of the peace.
However, I wish to record my continuing discomfort with the consistent overuse of that portion of § 18(d)(1) which speaks of “bring[ing] the judicial office into disrepute” — a provision which is vague in nature and which, due to the workings of § 16(b), is most severe in its ramifications. For the reasons which I expressed in my dissent in In re Berry, 979 A.2d 991 (Pa. Ct.Jud.Disc.2009), I believe that the charge of “bringing the judicial office into disrepute” should be reserved for the most extreme examples of misconduct. 1 Instead, the charge seems to be included in almost every case.
In the instant case, the task of finding a basic and more specific charge is difficult. As noted, the “activity prohibited by law” provision of § 17 is unavailable due to the wording of that section. At first blush, it would appear — as it did to me — that Rule 2A of the Rules Governing Standards of Conduct of Magisterial District Judges would apply. That Rule demands that District Judges “respect and comply with the law.” Since a criminal conviction evidences a manifest failure to comply with the law, a charge under Rule 2A would seem appropriate. However, in Harrington, 587 Pa. 407 , 899 A.2d 1120 (2006), the Supreme Court stated that Rule 2A applies only to conduct relating to “the decision-making process.” 2
*941 It might be desirable to amend the Rules in one or both of two ways. Either the elements of Article V, § 17(b) could be incorporated into the Rules applicable to Magisterial District Judges or existing Rule 2A could be clarified to include “compliance with the law” whether or not related to the actual decision-making process. Either of these changes would permit the Court to first consider clear-cut and indisputable charges before separately considering whether the misconduct arises to the extreme level required for a finding of “disrepute” which is frequently an issue as to which reasonable minds might differ.
. A charge under Rule 1 which commands that District Judges observe "high standards of conduct” might have been available since conduct resulting in a criminal conviction represents a very low standard of conduct. However, such resort to the Rules would involve substitution of one vague provision for another.