author: SPOSATO, P.J.,

text:
    In re Jaffe

      Court of Judicial Discipline,
    No. 6 JD 02.
    BEFORE: SPOSATO, P.J., LEADBETTER, COGNETTI, HORGOS, O’LEARY, O’DELL SENECA, BEASLEY AND HALESEY, JJ.

      January 15, 2003
   SPOSATO, P.J.,

I. INTRODUCTORY STATEMENT

Before the court is the petition of the Judicial Conduct Board for an interim order suspending respondent, Joseph A. Jaffe, from his judicial office without pay. The board seeks this order under Article V, Section 18(d)(2) of the Pennsylvania Constitution. That section provides:

“Prior to a hearing, the court may issue an interim order directing the suspension, with or without pay, of any justice, judge or justice of the peace against whom formal charges have been filed with the court by the board or against whom has been filed an indictment or information charging a felony. An interim order under this paragraph shall not be considered a final order from which an appeal may be taken.”

II. FINDINGS OF FACT

Respondent is a duly-elected judge of the Court of Common Pleas of Allegheny County and has held that office since January 1, 1985.

On August 8,2002 he was granted administrative leave with pay by order of the President Judge of Allegheny County.

On September 17,2002, respondent was indicted by a Grand Jury in the United States District Court for the Western District of Pennsylvania. The indictment charges that the respondent:

“(1) Solicited money in the performance of his judicial duties.
“(2) Violated the Hobbs Act by extortion (a felony), as that term is defined in title 18 of the United States Code, section 1951(b)(2), in that respondent solicited payment of money from a partner in the Goldberg, Persky, Jennings and White P.L. law firm with a main office at 1030 Fifth Avenue, Pittsburgh, Pennsylvania, which then had a substantial number of cases pending before the respondent. While committing the violation of the Hobbs Act, the respondent verbally described his ‘thought process’ to the above mentioned partner as ‘immoral and illegal’ ; however, in spite of this personal assessment of thought, the respondent offered ‘unfettered access’ to the partner for ‘ex parte’ contact.
“(3) The above charge is graded as a felony punishable by a maximum of 20 years imprisonment.”

On October 16, 2002 a superseding indictment was issued by the grand jury charging that the respondent:

“(1) Solicited money in the performance of his judicial duties.
“(2) Violated the Hobbs Act by extortion (a felony) as that term is defined in title 18, United States Code, section 1951(b)(2), in that, respondent solicited payment of money not due him or his office from Edwin Beachler, a partner in the Caroselli, Beachler, McTiernan, and Conboy law firm, which then had a substantial number of cases pending before the respondent.
“(3) Violated the Hobbs Act by extortion (a felony) as that term is defined in title 18 of the United States Code, section 1951(b)(2), in that, respondent attempted to obtain property in the form of payment not due him from a law firm partner, with his consent, induced by the wrongful use of fear, that is, respondent did solicit payment of financial support for his family and also employment for himself after incarceration, from the aforementioned Edwin Beachler, a partner in the Caroselli, et al. law firm, in exchange for the respondent’s concealment of Beachler’s role in the extortion payment to respondent as set forth in Count 2 of the superseding indictment. That charge is graded as a felony, punishable by a maximum of 20 years imprisonment.
“(4) The above charge is graded as a felony punishable by a maximum of 20 years imprisonment.

III. DISCUSSION

Because indictments have been filed against respondent charging him with felonies, section 18(d)(2) of Article V of the constitution authorizes this court to enter an interim order now — prior to a hearing — suspending him with or without pay.

The constitutional amendments of 1993, establishing this Court of Judicial Discipline, invest this court with authority to enter two different types of orders.

The first — the type we are most frequently requested to enter — is an order imposing a sanction against a judicial officer. This type of order is authorized by Article V, Section 18(b)(5) of the constitution and is to be entered in cases where the board has filed formal charges, and only after “a hearing or hearings.” Section 18(b)(5) also specifies certain rights to which judicial officers shall be entitled in such hearings. Orders under Section 18(b)(5) are final and appealable.

The second type of order which the Constitution empowers this court to enter is authorized by Article V, Section 18(d)(2). These orders are styled “interim orders” and are authorized to be entered “prior to a hearing.” These orders are not final and are not appealable.

We hold that the rights set out in Section 18(b)(5) as available to judicial officers in proceedings leading to final orders of sanctions are not available in interim proceedings under Section 18(d)(2). The fundamental constitutional scheme negates any other conclusion. We also hold that that constitutional scheme in no way offends any overweening notion of due process which may be said to derive from the Constitutions of the United States or of Pennsylvania.

Section 18(b)(5) of Article V provides:

“Upon the filing of formal charges with the court by the board, the court shall promptly schedule a hearing or hearings to determine whether a sanction should be imposed against a justice, judge or justice of the peace pursuant to the provisions of this section. The court shall be a court of record, with all the attendant duties and powers appropriate to its function. Formal charges filed with the court shall be a matter of public record. All hearings conducted by the court shall, be public proceedings conducted pursuant to the rules adopted by the court and in accordance with the principles of due process and the law of evidence. Parties appearing before the court shall have a right to discovery pursuant to the rules adopted by the court and shall have the right to subpoena witnesses and to compel the production of documents, books, accounts and other records as relevant. The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence. All decisions of the court shall be in writing and shall contain findings of fact and conclusions of law. A decision of the court may order removal from office, suspension, censure or other discipline as authorized by this section and as warranted by the record.”

It is obvious that the provisions of this section, including those specifying various rights to be afforded the subject of the charges, are intended to apply in cases where formal charges have been filed and where the court is asked “to determine whether a sanction should be imposed.” The sanctions imposed under this section are final — -not interim. It is not surprising that, in such a context, the drafters of the constitution would require that principles of due process be observed or that the respondent be presumed innocent or that the burden of proof be clear and convincing evidence.

It is also obvious that this process will take time; and, if a sanction is found to be called for, a separate hearing will be required to determine the appropriate sanction, which will take more time, and if an appeal from a final order of sanction is taken to the Supreme Court, this will take even more time.

We believe that it is obvious that it was the recognition that substantial time would necessarily pass between the time a judicial officer was charged and the time when an order of removal or suspension could be effected, that impelled the drafters to provide for the expeditious entry of “interim orders,” and so they did, in Section 18(d)(2) of Article V. It was only by empowering this court to suspend “prior to a hearing,” i.e., without a hearing, that the integrity of the judicial system could be safeguarded during this interim period. It is noted that the drafters authorized the entry of interim orders only in cases where the board has already filed formal charges and proceedings under Section 18(b)(5) are underway, and in cases where a judicial officer has been charged in “an indictment or information [with] a felony.” It was in those cases where the drafters perceived the need to provide this court with the authority for immediate or expeditious suspension in order to avert adverse public perception which may follow if a judicial officer charged with serious offenses continues on the bench or continues on the public payroll.

Courts have debated, and are divided on, the question of whether due process rights are applicable in the judicial disciplinary process. The issue is usually presented as requiring a determination of whether judges have a sufficient property or liberty interest in their offices to invoke the due process clause in disciplinary proceedings, see e.g., In re Gillard, 271 N.W. 2d 785 (Minn. 1978); In re Nowell, 237 S.E.2d 246 (N.C. 1977); In re Hanson, 532 Pa.2d 303 (Alaska 1975); In re DelRio, 400 Mich. 665, 256 N.W.2d 727 (1977); Gruenburg v. Kavanagh, 413 F. Supp. 1132 (E.D. Mich. 1976), as well as the opinion of this court in In re Larsen, 655 A.2d 239, 249 (Pa. Ct. Jud. Disc. 1994) where, in support of an interim order of suspension without pay, we noted that “federal courts have held that state judges do not have a federal constitutional right to hold office,” citing Fink v. Supreme Court of Pennsylvania, 654 F. Supp. 437 (M.D. Pa. 1987), aff’d, 838 F.2d 1205 (3d Cir. 1988) and Gruenburg v. Kavanagh, supra.

Moreover, once it is decided that a due process property or liberty interest is present there is no consensus as to exactly what sort of due process is due. It has been said that due process of law is not a fixed concept but may vary from situation to situation.

We need not enter these debates in deciding this case, because, in proceedings conducted in this court “to determine whether a sanction should be imposed,” i.e., in proceedings conducted under Article V, Section 18(b)(5), there is no occasion to guess or to refer to other cases in deciding whether, and, if so, which, due process rights should be extended to judicial officers against whom formal charges have been filed, for these rights are specifically enumerated in that section. Thus, in this case, respondent’s removal cannot occur, his employment cannot be permanently affected in any way, indeed, no sanction of any kind can be imposed without a full hearing conducted under Article V, Section 18(b)(5) with all its attendant due process protections.

While identification of the principles underlying the drafters’ decision to confer these rights on judicial officers may not be important — it is enough that they did confer them — we can assume they include the recognition of a “property” interest in their employment and thus would be in consonance with the holdings of the United States Supreme Court in Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807, 138 L.Ed.2d 120 (1997); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); and Perry v. Sindermann, 408 U.S. 593, 602-603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). For example, in Gilbert the Supreme Court said:

“The protections of the due process clause apply to government deprivation of those perquisites of government employment in which the employee has a constitutionally protected ‘property’ interest.... we have previously held that public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process, . . . .” Gilbert v. Homar, supra at 928-29. (emphasis added)

In the instant case, of course, we are not asked to “fire” respondent, or to take any final or permanent action against him — an interim, temporary suspension only is sought; and we note, as did the United States Supreme Court in the Gilbert case that that court “[has] not had occasion to decide whether the protections of the due process clause extend to discipline of tenured public employees short of termination.” Id. at 929. (emphasis added) Since the point was not contested by the university in Gilbert, the Supreme Court decided not to decide it; but “like the district court assumfe] that the suspension infringed a protected property interest.” Ibid. The court then addressed the question of whether the respondent had “received all the process he was due” in the proceedings leading to his interim suspension. In addressing that precise question in this case we follow the Supreme Court’s analysis and conclusion in that case.

The Supreme Court first cited its decision in Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) where it had held that “a public employee dismissible only for cause was entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing.” Gilbert v. Homar, supra at 929. In Loudermill the court stressed that the pre-termination hearing “should be an initial check against mistaken decisions — essentially a determination of whether there are reasonable grounds to believe the charges against the employee are true and support the proposed action.” Loudermill, supra at 545-46.

In the course of its opinion in Loudermill, the Supreme Court, in assessing the importance of the governmental interest in the immediate termination of a tenured employee, had observed that “in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay.” Id. at 544-45. (emphasis in original)

The Supreme Court, in its opinion in the Gilbert case, took note that the lower court in its opinion had:

“Rel[ied] on this dictum, which it read as ‘strongly suggesting that suspension without pay must be preceded by notice and an opportunity to be heard in all instances, ’ 89 F.3d at 1015 (emphasis in original)... [and] the court of appeals adopted a categorical prohibition: ‘[A] governmental employer may not suspend an employee without pay unless that suspension is preceded by some kind of a pre-suspension hearing, providing the employee with notice and an opportunity to be heard.’ Ibid. ” Gilbert v. Homar, supra at 930.

The Supreme Court reversed the court of appeals and called its holding on the point “indefensible.” Ibid. In its opinion the Supreme Court went on to point out that:

“It is by now well established that ‘ “due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230(1961). ‘Due process is flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This court has recognized, on many occasions, that where a state must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the due process clause, [citations omitted] Indeed, in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), we specifically noted that ‘we have rejected the proposition that [due process] always requires the state to provide a hearing prior to the initial deprivation of property.’ 451 U.S. at 540. And in FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), ... we unanimously approved the Federal Deposit Insurance Corporation’s suspension, without prior hearing, of an indicted private bank employee, . . . .” Gilbert v. Homar, supra at 930.

The Supreme Court then described the method to be used “to determine what process is constitutionally due” as requiring the balancing of three distinct factors:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest. Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See also, e.g., Mallen, supra at 242; Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).” Id. at 931-32.

Referring to the first factor, the court recognized the severity of depriving someone of the means of his livelihood, but noted:

“On the other side of the balance, the state has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers. Respondent contends that this interest in maintaining public confidence could have been accommodated by suspending him with pay until he had a hearing. We think, however, that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.” Id at 932.

Proceeding with this analysis, the court went on to say:

“The last factor in the Matthews balancing, and the factor most important to resolution of this case, is the risk of erroneous deprivation and the likely value of any additional procedures .... the purpose of any pre-suspension hearing would be to assure that there are reasonable grounds to support the suspension without pay. Cf. Mallen, 486 U.S. at 240. But here that has already been assured by the arrest and the filing of charges.
“In Mallen, we concluded that an ‘ex parte finding of probable cause’ such as a grand jury indictment provides adequate assurance that the suspension is not unjustified. Id. at 240-41. The same is true when an employee is arrested, and then formally charged with a felony. First, as with an indictment, the arrest and formal charges imposed upon respondent ‘by an independent body demonstrate that the suspension is not arbitrary.’ Id. at 244. Second, like an indictment, the imposition of felony charges ‘itself is an objective fact that will in most cases raise serious public concern.’ Id. at 244-45. It is true, as respondent argues, that there is more reason to believe an employee has committed a felony when he is indicted rather than merely arrested and formally charged; but for present purposes arrest and charge give reason enough. They serve to assure that the state employer’s decision to suspend the employee is not ‘baseless or unwarranted,’ id. at 240, in that an independent third party has determined that there is probable cause to believe the employee committed a serious crime.” Id. at 933-34.

In Gilbert, the charges against respondent were dismissed shortly after he was initially suspended without pay and the Supreme Court marked the importance of that development with the observation that:

“Once the charges were dropped, the risk of erroneous deprivation increased substantially, and, . . . there was likely value in holding a prompt hearing,----” Id. at 935.

It is useful, in evaluating the factors bearing on the determination of what process is constitutionally due here, to stand the facts of the case presently before us alongside the facts of Gilbert v. Homar which were before the United States Supreme Court. In doing so, we find the circumstances of this case provide more support for the entry of an interim order of suspension without pay than do those of Gilbert v. Homar. There are several reasons for this:

(1) The state’s interest in immediately suspending, when felony charges are filed against them, “employees who occupy positions of great public trust and high public visibility” is of heightened significance, said the Supreme Court in Gilbert v. Homar, supra at 932, where the respondent was a police officer. The state’s interest here, then, is only more vital: for what employees occupy positions of greater public trust or of higher public visibility than judges?

(2) In the case before us the respondent has been indicted by a grand jury: in Gilbert v. Homar, the respondent was merely arrested and formally charged. There, the Supreme Court acknowledged that: “there is more reason to believe an employee has committed a felony when he is indicted than merely arrested and formally charged; but for present purposes arrest and charge give reason enough.” Gilbert v. Homar, supra at 934.

(3) In Gilbert v. Homar the charges were dropped— not so, in this case; the criminal prosecution of respondent goes forward.

(4) The post-suspension hearing to which this respondent is entitled under Article V, Section 18(b)(5) of our constitution before any final sanction can be imposed, will provide him with far greater due process protection than that which satisfied the Supreme Court in Gilbert v. Homar, i.e., notice of a meeting with his employer and “an opportunity to tell his side of the story.” Id. at 927.

(5) The pre-suspension procedures extended to this respondent, include service of the petition for interim order and the amended petition, filing of answers to both, representation by counsel, filing of briefs, and oral argument in this court. In Gilbert v. Homar, the respondent was suspended immediately without receiving even notice that there was an intention to do so.

It is our conclusion that the due process accorded respondent by the Pennsylvania Constitution and provided to him in this case satisfies the requirements of the due process clause of the United States Constitution as well as the constitution of this Commonwealth.

It should be noted that there has developed in our Commonwealth Court what plausibly could be called a discrete cottage industry in reviewing appeals of public employees who claim they were denied due process in the course of termination of their employment. See e.g., Olson v. Borough of Avalon (Pa. Commw. Nov. 13, 2002) (No. 1788 C.D. 1997); Bhattacharjee v. Department of State, 808 A.2d 280 (Pa. Commw. 2002); Burger v. Board of School Directors of McGuffey School District, 805 A.2d 663 (Pa. Commw. 2002); Veit v. North Wales Borough, 800 A.2d 391 (Pa. Commw. 2002); Firman v. Department of State, State Board of Medicine, 697 A.2d 291 (Pa. Commw. 1997); Turner v. Pennsylvania Public Utility Commission, 683 A.2d 942 (Pa. Commw. 1996); City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 140 Pa. Commw. 235, 592 A.2d 779 (1991); Shah v. State Board of Medicine, 139 Pa. Commw. 94, 589 A.2d 783 (1991); Adamovich v. Commonwealth Department of Public Welfare, 95 Pa. Commw. 22, 504 A.2d 952 (1986). In reviewing these cases, the Commonwealth Court’s primary inquiry is determining whether the employee received a “Loudermill hearing” — a reference to the Supreme Court’s decision in Cleveland Bd. of Ed. v. Loudermill, supra, which as earlier pointed out held that “a public employee dismissible only for cause was entitled to a very limited hearing prior to his termination.” We are unable to identify any reason why the job status of this public employee entitles him to more due process protection than police officers or school teachers or any other public employee: there is no reason.

We emphasize, moreover, that the requirements of Loudermill apply to pre-termination hearings: we are not here engaged in pre-termination proceedings — these are pre-suspension proceedings, conducted pursuant to Article V, Section 18(d)(2) “prior to a hearing.”

Before proceeding to determine whether in our discretion, considering the totality of the circumstances, we should enter the requested order, we pause to address a portion of our opinion in the case of In re Michael D. Smith, 712 A.2d 849, 852 (Pa. Ct. Jud. Disc. 1998). There we denied a petition for an interim order of suspension with pay, and, in doing so, considered the possible consequence of the language of Article V, Section 18(b)(5), regarding the presumption of innocence and the burden of proof required in hearings on formal charges, in proceedings leading to interim orders. In that opinion we said that, since Section 18(b)(5) provided that “the subject of the charges shall be presumed innocent in any proceeding before this court, and the board shall have the burden of proving the charges by clear and convincing evidence.” (emphasis in original)

“We believe that this constitutional abjuration was intended to clothe respondents in interim proceedings such as this with the presumption of innocence, and, although we do not conclude that, in these proceedings, the board’s burden should be to persuade this court by clear and convincing evidence, we do hold that it is the board’s burden to persuade the court that the totality of the circumstances requires the entry of an interim order of suspension.” Ibid.

We now affirm our holding in Smith that it is the board’s burden to establish that the “totality of the circumstances” requires suspension, but reject the notion that the presumption of innocence extends to respondents in interim proceedings. Respondent has directed our attention to this dictum in Smith and calls upon us to accord this respondent with the presumption of innocence in these interim proceedings. Reconsideration of the issue, which is central in this case, impels us to decline to do so.

Making the presumption of innocence a sine qua non in these proceedings would ipso facto require a hearing for, in such case, the board would be compelled to produce some evidence in order to overcome the presumption. This, as we have said, would contravene the fundamental plan of the constitution and nullify Section 18(d)(2) of Article V which specifically authorizes the entry of temporary, “interim” orders “prior to a hearing.”

Moreover, a “presumption of innocence,” in these interim proceedings, would be incongruous, for, in these interim proceedings we are not to engage in a determination of guilt v. innocence; we engage in a determination of whether the totality of the circumstances requires that a judicial officer charged with felonies be suspended with or without pay.

Having decided that this court is constitutionally authorized to enter an interim order without a hearing and that, in fact, the Constitution contemplates that we do so where appropriate, and that such a procedure does not withhold or offend any due process rights to which respondent might be entitled, we must decide whether, in our discretion, an interim order suspending respondent without pay should be entered in this case.

In this undertaking, we turn to the rule formulated by this court in In re Larsen, 655 A.2d 239 (Pa. Ct. Jud. Disc. 1994) where we stated:

“Rather than a per se rule as proposed by the board, we are of the opinion that a totality of the circumstances test is more appropriate, with each case being decided on its own facts. Among the factors to be considered are the nature of the crime charged, its relation, or lack thereof to the duties of the responding judicial officer, the impact or possible impact on the administration of justice in this Commonwealth, the harm or possible harm to the public confidence in the judiciary as well as any other circumstances relevant to the conduct in question.” Id. at 247. See also, In re Smith, supra at 851-52.

Consideration of the annunciated factors leads decisively to the conclusion that the totality of the circumstances in this case calls for the entry of an interim order of suspension without pay.

The charges of which respondent stands indicted tell a story of a judge who used his position of trust — concomitantly a position of power and control — to extort money from two lawyers, who at the time were representing numerous plaintiffs in cases assigned to the respondent, for the purpose of compensating him for the injustice he was prepared to do to the litigants in those cases. The indictment further charges that, after his arrest upon the report of the second lawyer-extortee, respondent reapproached the first lawyer-extortee who had allowed the extortion to take place, indeed, had been party to it, but had omitted to report it, and by threatening to expose the lawyer’s complicity in that crime extorted further promises of financial payments.

We are unable to imagine a tableau more discordant with the benignity and dignity with which we aspire to dress our judges, more damaging to the mission of judge as seeker and dispenser of justice — without which the “justice-system” becomes irrelevant, and the term an oxymoron; nor can we conceive of a course of conduct more antithetical to the raison d’etre of the judicial office itself, and more likely to destroy the confidence of the public in it, upon which our judicial system is so dependent.

In short, evaluation of all the factors designated for consideration in Larsen leads to the conclusion that the totality of the circumstances calls for entry of an interim order of suspension without pay.

IV. CONCLUSIONS OF LAW

(1) This court has jurisdiction of the subject matter of the petition for an interim order directing the suspension of a judicial officer without pay pursuant to Article V, Section 18(d)(2) of the Pennsylvania Constitution.

(2) This court has jurisdiction of the person of respondent pursuant to Article V, Section 18 of the Pennsylvania Constitution.

(3) The totality of the circumstances of this case requires that the Judicial Conduct Board’s petition be granted.

(4) An interim order will be entered suspending respondent without pay until further order of this court.

ORDER

And now, January 15,2003, upon consideration of the petition of the Judicial Conduct Board for an interim order directing the suspension of the above-named judicial officer without pay, the answer of respondent to the petition, the amended petition and respondent’s answer thereto, and upon consideration of the legal memoranda filed by the Judicial Conduct Board and the respondent as well as of the supplemental brief of respondent and the reply brief of the Judicial Conduct Board, and after oral argument, it is hereby ordered that:

(1) The petition of the Judicial Conduct Board for an interim order directing the suspension of a judicial officer without pay is hereby granted.

(2) Pursuant to the authority of Article V, Section 18(d)(2) of the Pennsylvania Constitution, Judge Joseph A. Jaffe is hereby suspended without pay from the date of this order until further order of this court.

(3) The medical benefits of the respondent shall not be suspended during the effectiveness of this interim order.

      . The due process analysis is the same under both the United States Constitution and the Pennsylvania Constitution. See Electrolux Corp. v. Commonwealth, Dep’t. of Labor & Industry, Bureau of Employer Tea Operations, 705 A.2d 1357, 1362 n.5 (Pa. Commw. 1998) citing Pennsylvania Game Commission v. Marich, 542 Pa. 226, 666 A.2d 253 (1995) (analysis of due process under Federal Constitution is applicable under Pennsylvania Constitution).

      . Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), see also, Oberholzer v. Commission on Judicial Performance, 84 Cal. Rptr. 2d 466, 479 (Cal. 1999); In re Judicial Campaign Complaint Against Carr, 667 N.E.2d 956 (Ohio 1996).

      . These rights include: the right to a prompt hearing “to determine whether a sanction should be imposed” (this obviously does not refer to interim orders because interim orders are not “sanctions”), the right to a public hearing, conducted pursuant to the rules of procedure of this court, conducted in accordance with due process and in accordance with the law of evidence, the right to discovery and to subpoena witnesses and documents, the right to the presumption of innocence, and the board has the burden to establish its case by clear and convincing evidence.

      . The employee in that case was a police officer employed by East Stroudsburg University, Pennsylvania.

      . 89 F.3d 1009 (3d Cir. 1997).

      . In addition, we note that should future developments establish the deprivation of pay to have been unjustified, this court has the authority to order the restoration of any pay withheld.

      . Respondent cites the Supreme Court of Pennsylvania’s opinion in In the Matter of Cunningham, 517 Pa. 417, 538 A.2d 473 (1988) as precedent requiring this court to deny this petition. Cunningham, however, was decided before the constitutional amendment of 1993 when the constitution contained no equivalent to present Section 18(d)(2) of Article V which contains specific provisions authorizing the entry of an interim order of suspension without pay. Indeed, the Supreme Court pointed out that the constitution as then written provided in subsection (h) of Section 18:
      “[T]hat upon a final order of suspension or removal ‘his salary shall cease from the date of such order.’ Article V Section 18(h). There is no such authorization for the stopping of the salary of a jurist in the case of an interim suspension where the matter has yet to be finally adjudicated. Moreover, an interim suspension is not expressly provided for in Article V, Section 18 as a type of discipline to be imposed as a sanction for misconduct or misbehavior in office.” Id. at 422 n.1, 538 A.2d at 475-76 n.1. (emphasis added)
      As we know, Article V, Section 18(d)(2) now contains specific authority for the entry of interim orders of suspension without pay.


source: Caselaw Access Project

author: McfNERNEY, J.,

license: Public Domain

text:
    Ginivi Inc. v. Zoning Board of Adjustment of the City of Philadelphia

      Stephen G. Pollock and Carl K. Zucker, for appellants.

      Cheryl L. Gaston, for appellees.

      William Ewing, for appellees (intervenors).
    March 18, 2002
   McfNERNEY, J.,

Appellants Ginivi Inc. and Scorpio Adult Boutique and Video appeal from this court’s order affirming the denial of a variance.

I. BACKGROUND

Scorpio Adult Boutique and Video is an adult book, video, paraphernalia, and peep show store located at 1320 Walnut Street (also known as 203 South Juniper Street) in Philadelphia. 203 South Juniper Street is a one-story building, divided into five stores. Finding of fact of the Zoning Board of Adjustment (FF) 6. The stores are numbered one through five, with store 1 being the northernmost, and the others proceeding sequentially to the south. See exhibit 12, existing floor plan of 1320 Walnut Street. Store 1 is a deli owned by an unknown person, not a party to this litigation. Stores 2, 3,4 and 5 are owned by Ginivi. Id. Stores 4 and 5 have been used as a single adult book store since before the enactment of the Philadelphia Zoning Code’s special controls on adult entertainment businesses. FF 7. The prior use included the sale and rental of adult videos, peep shows, and the sale of magazines and novelties. Id. Since the use antedated the enactment of the special controls, the nonconforming use was allowed to continue after their enactment. Id. Stores 2 and 3 were separate shops, divided from stores 4 and 5 by an internal wall with separate doors to the outside. See N.T., zoning board of adjustment, 3/22/01 at 12.

On an unknown date, the predecessor of Ginivi, John Davis, requested a variance to allow the store to expand from stores 4 and 5 into stores 2 and 3. FF 8. On July 24, 1991, the zoning board of adjustment refused the variance. FF 8.

Sometime in 1997, Ginivi breached the interior wall separating stores 4 and 5 from stores 2 and 3, and sealed the exterior doors to stores 2 and 3. Id. Ginivi then illegally expanded into stores 2 and 3. Id. On June 28,2000, the Philadelphia Department of Licenses and Inspections issued a violation notice advising Ginivi that he was in violation, and directing him to cease the expansion. FF 10. The violation notice further advised that reinspection would be made in 30 days, and failure to comply would result in the commencement of prosecution against Ginivi. Id.

On July 27,2000, Ginivi applied to L&I for a use registration permit to legalize the expansion into stores 2 and 3. FF 1. L&I determined that the expansion would not comply with the use regulations and the special regulations applicable to adult entertainment establishments, and on October 20, 2000, refused the permit. FF 2. On October 27, 2000, Ginivi appealed to the ZBA. The appeal petition asserted that the permit should have been allowed for three reasons:

“(1) L&I improperly calculated the floor area at the time the use became nonconforming, and the new use did not exceed limits on expanding nonconforming uses;
“(2) L&I misapplied Philadelphia Code section 14-1607, relating to special controls for Center City; and, alternatively,
“(3) Ginivi requested a variance for the expansion, stating the extension was a natural expansion as of right, and that failure to grant the variance would create hardship, and would not adversely affect the public health, safety, and welfare.” See petition of appeal to zoning board of adjustment, calendar number 00-1138, dated 10/ 27/00.

On March 22, 2001, the ZB A held a public hearing. At the hearing, East of Broad Improvement Association, Ruthanne Madway, and Roseanne Kozlow participated as protestants. On April 12, 2001, the ZBA denied the appeal. On May 9, 2001, Ginivi and Scorpio appealed the ZBA’s decision to this court. East of Broad Improvement Association, Ruthanne Madway, and Roseanne Kozlow intervened in the appeal. After considering the parties’ submissions, hearing oral argument, and reviewing the matter carefully, on January 24, 2002, this court denied the appeal. On February 4,2002, Ginivi and Scorpio appealed to the Commonwealth Court. In response to an order of this court, Ginivi and Scorpio filed a concise statement of matters complained of on appeal, Pa.R.A.R 1925(b), which alleges as follows, in pertinent part:

“The denial of a variance alone, without consideration of issues of nonconformance; [sic] vested property interest in the permit, and impact of the zoning code on appellants’ First Amendment rights, was legal error. The zoning board itself had allowed the record to be augmented post-hearing, but refused to conduct a hearing on these material issues. The trial court abused its discretion by acting solely on the variance issue.
“Appellants were entitled by right to conduct adult uses within the building as a natural expansion of their nonconforming business. The zoning board erred by applying a 10 percent expansion limit to the business, since the zoning code (section 14-104(7)) applies only to extensions of gross floor area of structures. This application did not involve an extension of structure. The trial court abused its discretion by applying the zoning board reasoning.
“The adult uses satisfied the legislative findings (section 14-1605) supporting the regulated use special controls. Protestants objected to the conduct of adult uses in their Center City area, but failed to establish any ‘adverse secondary impact’ as is required by decisional law to implicate First Amendment rights. The trial court abused its discretion and committed an error of law by misreliance upon such evidence to uphold the zoning board of adjustment finding of public harm.
“There was substantial evidence that the building could not be used for traditional commercial use, due to its location, limited street pattern, and discordant surrounding uses including a public garage facility and a cluttered service alley. The trial court erred by upholding the zoning board’s determination to deny the variance; and to augment the record with missing documents and memoranda, but refusing to grant a hearing to address material issues raised thereon. The zoning board had an obligation to conduct a full and complete hearing, and the trial court erred in accepting the zoning board procedure, without remand.”

These issues are meritless.

H. DISCUSSION

A. Scorpio Waived Arguments By Failing To Properly Raise and Preserve Them

Initially, we note that we do not know with certainty what Scorpio intended to say in the first paragraph quoted above from its 1925(b) statement. Considering the paragraph as a whole, the most natural reading would be that this court erred by affirming the ZBA because the ZBA failed to consider the impact of the First Amendment, the prior nonconforming use, and the doctrine of vested rights when it rendered its decision, and this court erred by not considering those arguments itself. This interpretation is supported by the statements made by appellants’ counsel at oral argument. See N.T. 10/31/01 at 5. However, the paragraph is confusing. If Scorpio reveals a different intended meaning to the Commonwealth Court, then it has waived whatever was intended. See Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001) (“[A] concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all.”); see also, Commonwealth v. Lord, 533 Pa. 415, 719 A.2d 306 (1998) (holding that failure to file a 1925(b) statement where one is required waives all issues on appeal in part because requiring the courts to guess at the issues on appeal risks appellants losing rights). Courts cannot craft and refine arguments for parties.

Even if our interpretation is the correct one, appellants failed to properly raise and preserve these issues before the ZBA. During the hearing before the ZBA, appellants informed the board that they had not been permitted to see interdepartmental memos, notes, and other matters that were in the record. N.T. 10/31/01 at 18. Appellants also apparently asked the board to hold the record open for two weeks, or until April 5,2001, to allow appellants to file a memorandum of law on constitutional and other issues. See letter from Carl Oxholm III to the Honorable Thomas J. Kelly, chairman of zoning board of adjustment, dated 4/9/01; see also, letter from Carl K. Zucker to Honorable Thomas J. Kelly, chairman of zoning board of adjustment, dated 4/30/01. On April 5, 2001, protestants filed a memorandum of law discussing constitutional issues that protestants believed appellants might raise. See id. On April 6, 2001, appellants again complained of documents missing from the record. See letter from Carl K. Zucker to Honorable Thomas J. Kelly, chairman of zoning board of adjustment, dated 4/6/01 at 1. Appellants specifically complained that the deputy commissioner of L&I had authorized the removal of letters complaining to L&I, L&I’s response to the complaints, and a legal opinion or memorandum of the city solicitor regarding issues before the ZBA. Id. On April 9,2001, protestants advised the ZBA that appellants had never filed the memorandum of law, and urged the ZBA to render a decision based on the record as it then existed. See letter from Carl Oxholm III to the Honorable Thomas J. Kelly, chairman of ZBA, dated 4/9/01. On April 12, 2001, the ZBA refused the appeal, and appellants again objected to the documents’ removal.

Appellants also asked the ZBA to rescind its decision and reopen the matter for reconsideration based on the “complete” record. See letter from Carl K. Zucker to Honorable Thomas J. Kelly, chairman of ZBA, dated 4/ 12/01. Noting that appellants had never asserted that the purportedly missing documents were relevant to a material issue, the protestants opposed appellants’ request. See letter from Carl Oxholm III to the Honorable Thomas J. Kelly, chairman of ZBA dated 4/12/01. On April 13,2001, appellants again requested rehearing or reconsideration of the appeal, citing the purportedly missing items, asserting a number of circumstances in support of the request. See letter from Carl K. Zucker to Honorable Thomas J. Kelly, chairman of ZBA dated 4/12/01. Among the circumstances was the assertion that “the concealed documents may implicate First Amendment issues, as well as jurisdictional, credibility, and standing questions.” Id. at 1. Protestants once more opposed appellants’ request. See letter from Carl Oxholm III to the Honorable Thomas J. Kelly, chairman of ZBA dated 4/17/01. On April 30, 2001, appellants asserted essentially that the ZBA had erred in denying the appeal, and renewed the demand for rehearing. Letter from Carl K. Zucker to Honorable Thomas J. Kelly, chairman of ZBA, dated 4/30/01. On May 2,2001, the ZBA denied the request for rehearing or reconsideration, but allowed the record to be supplemented with any absent documents and the appellants’ memorandum of law. See letter from Honorable Thomas J. Kelly, chairman of ZBA, to Carl K. Zucker dated 5/2/01.

We have carefully searched the record. Although we located a document labeled in the handwriting of an unknown person, “Document taken out of file by Dave Perri,” we found absolutely no memorandum of law or brief from appellants. Where the court determines that the record before the ZBA is complete, issues not raised before the ZBA are waived before the trial court. Phila. Code 14-1807(5). We cannot say that the record is incomplete. The ZBA first allowed appellants two weeks in which to file a memorandum, and when appellants did not, the ZBA allowed them to supplement the record with the memo and “missing” documents at any time. Yet the memorandum was never supplied. Thus, any issues not raised during the public hearing itself before the ZBA have been waived. The record reveals that appellants argued only two issues during the open hearing before the ZBA: (1) The City of Philadelphia could not constitutionally restrict Scorpio’s nonconforming use to a mere 10 percent expansion, see N.T. 10/31/01 at 9; and, (2) The use was nonconforming and the ZBA therefore erred in refusing the variance, see N.T. 10/31/01 at 10. Appellants are limited to these issues before the Commonwealth Court. All others have been waived. Pa.R. A.P. 302(a).

B. The ZBA Properly Applied the 10 Percent Restriction On Expansion of Nonconforming Uses

Appellants assert that the ZBA improperly applied the 10 percent limit because that restriction only applies to extensions of gross floor area of structures. As the expansion here was within a single building, the argument continues, the gross floor area of the structure was not increased, and the limit does not apply.

The Philadelphia Code limits the expansion of a prior nonconforming use:

“Extensions of structures containing nonconforming uses. No structural extensions or additions to a structure containing a nonconforming use shall be made after July 15,1957, which, when added to all structural extensions and additions made since the use first began to be nonconforming, shall cause the aggregate gross floor area of all such structural extensions and additions to exceed 10 percent of the gross floor area of the structure when the use first began to be nonconforming ...” Phila. Code §14-104(7).

Appellants’ argument is flawed by appellants’ misunderstanding of the definition of “structure.” A “structure” does not necessarily have to be a separate building, for purposes of the Philadelphia Zoning Code:

“Separate structures. Where any building is subdivided into separate units, floors or portions of floors which are not interconnected and served by a common entranceway to other units, floors or portions of floors, each subdivision of the structure shall be considered a separate building, provided, that each separate building may have additional entranceways serving the ground floor or portions thereof... .” Phila. Code §14-102(82).

Under this definition, for purposes of the zoning code, unconnected subdivisions of a structure are deemed a freestanding structure. Reading that definition into the code portion imposing the 10 percent restriction, the zoning code plainly prohibits more than a 10 percent increase in the gross floor space of a nonconforming use, even within what would ordinarily be thought of as a single building. It is undisputed that the building in question contained five separate stores with separate entrance doors and that Ginivi had to knock down existing walls to expand. See N.T., zoning board of adjustment, 3/22/01 at 12.

The purpose of the 10 percent restriction demonstrates the correctness of this result. The point of the restriction is to allow businesses to grow reasonably, without defeating the zoning limitations resulting in the use being “nonconforming” in the first place. If a business could evade the restriction simply by expanding within the same building, the restriction would lose its force. We do not believe that city council intended such a result. Appellants’ argument is meritless.

C. The ZBA Properly Disregarded Any Argument That the Property in Question Did Not Have Harmful Secondary Effects

Appellants contend that the ZBA erred because the protestants failed to establish that Scorpio Adult Boutique and Video had an adverse secondary impact. This argument was waived as not raised before the ZBA. Even if it were not waived, the argument is devoid of merit, as appellants have confused First Amendment law.

Municipalities may validly regulate the location of adult entertainment establishments through content-neutral time, place, and manner restrictions. City of Renton v. Playtime Theaters Inc., 475 U.S. 41, 47 (1986). These restrictions are content-neutral so long as they are not “enacted for the purpose of restraining speech on the basis of its content.” Renton, 475 U.S. at 46-47. As no one here has suggested that the Philadelphia Zoning Code was aimed at the content of Scorpio and Ginivi’s speech, we deem the regulation content-neutral. “Content-neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial govemmental interest and do not unreasonably limit alternative avenues of communication.” Id. at 47.

In Renton, the city examined studies conducted in Seattle showing that adult movie theaters cause adverse effects on the surrounding areas. Id. at 50. The City of Renton also relied on Seattle’s experience. Id. On those bases, Renton enacted a zoning code prohibiting any adult motion picture theater from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school. Id. at 44. The United States Supreme Court approved of the ordinance, holding it a valid content-neutral, time, place, and manner regulation. The court also held that the city could properly rely on studies and the experience of another city; the city did not have to establish the “particular problems or needs of Renton.” Id.

Appellants at bar have attempted to convert proper grounds for a facial attack on the Philadelphia Zoning Code into an “as applied” challenge. Although we found no case directly on point, the Supreme Court’s decision in Renton guides us. If Renton does not require the city to establish the particular effects of adult establishments in its own city to enact an ordinance aimed at secondary effects, we see no reason why Philadelphia (or protestants/intervenors, for that matter) should have had to prove secondary effects in order to apply validly the zoning code in a given case. The United States Supreme Court has already determined that a lesser evidentiary hurdle is sufficient. Moreover, a contrary ruling would fly in the face of the secondary effects doctrine. To require a showing of actual effects would mean that municipalities could no longer enact a zoning code, which is inherently general in application, to combat the adverse side effects of these uses. Renton stands for the opposite proposition. The protestants and city were under no requirement to show Scorpio Adult Boutique and Video’s adverse effects. See SWZ Inc. v. Board of Adjustment of City of Ft. Worth, 985 S.W.2d 268 (Tex. App. 1999) (holding that zoning ordinance aimed at secondary effects was constitutional as applied, notwithstanding alleged mitigation of secondary effects); see also, ILQ Investments Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir. 1994) (holding that Rochester need not prove that business would likely have the exact same adverse effects as adult businesses in the studies Rochester considered).

D. The ZBA Properly Denied a Variance

Appellants’ 1925(b) statement asserts that the ZBA erred by not granting them a variance because there was substantial evidence that the building could not be used for traditional commercial use, and point to evidence of the need for a variance. Appellants further argue that the ZBA erred by not permitting a full hearing. Since the ZBA granted appellants a reasonable extension to augment the record with the “missing” documents and a memorandum, but appellants failed to file within the extended time limit, we reject the latter argument out of hand. If the hearing was not as full as appellants would have liked, they have no one to blame but themselves.

The precise argument appellants now present was not raised before the ZBA, and is therefore waived. Phila. Code 14-1807(5). The argument before the ZBA was that the use was nonconforming and the ZBA therefore erred in refusing the variance. See N.T. 10/31/01 at 10.

Even if the argument had been preserved, it lacks merit. To start, appellants have incorrectly stated the standard of review of ZBA decisions. We affirm the ZBA so long as there is substantial evidence supporting its decision, it has not abused its discretion, and it has not committed an error of law. Robisco Inc. v. Z.B.A., City of Philadelphia, 35 Phila. 167 (1998). We do not reverse them simply because there is substantial evidence supporting a different decision.

The record supports the denial of the variance. To grant a variance, the ZBA must find that, due to special conditions, a literal enforcement of the Zoning Code would result in unnecessary hardship. See Phila. Code §14-1801(l)(c). The ZBA may only grant a variance where the variance will not be contrary to the public interest. Id. The Zoning Code contains a litany of factors that the ZBA must address in deciding whether a variance should be granted.

See Phila. Code § 14-1802. As the party seeking a variance, appellants bore the burden of establishing unnecessary hardship. 8131 Roosevelt Corp. v. Zoning Board of Adjustment of the City of Philadelphia, 2002 WL 257474, *5 (Pa. Commw. 2002).

Had they raised the issue, appellants failed to carry their burden. There was no evidence that requiring that the property be used in conformity with current zoning would result in unnecessary hardship. To the contrary, the evidence suggested that stores 2 and 3 had since 1972 been used for a number of purposes, including a dry cleaning establishment, a travel agency, and a barber shop, see appellants’ exhibit 5, protestants’ exhibits 6E and 6F. Accordingly, the ZBA did not err by denying the variance.

III. CONCLUSION

Appellants’ arguments lack merit, and this court’s order should be affirmed.

      . We do not know if the document is one of the “missing” documents.