Opinion
No. 239 M.D. 2014
12-11-2014
James D. Schneller, Petitioner v. Judicial Conduct Board of The Commonwealth of Pennsylvania, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
James Schneller petitions this Court, pro se, for a writ of mandamus to compel the Judicial Conduct Board to investigate and prosecute two judges of the Court of Common Pleas of Chester County, Orphans Court Division, for alleged misconduct. The Board has filed preliminary objections on several grounds. Because Schneller is not entitled to mandamus relief, we sustain the Board's objections and dismiss the complaint.
The common law writ of mandamus has been replaced with the generic petition for review. PA. R.A.P. 1502. Where, as here, an action seeking to invoke this Court's original jurisdiction to review a governmental determination is initiated by a complaint in mandamus, the complaint will be treated as a petition for review. Commonwealth Acting Through Unified Judicial System v. Vartan, 674 A.2d 1156, 1160 n.6 (Pa. Cmwlth. 1996), rev'd on other grounds, 733 A.2d 1258 (Pa. 1999).
In his petition, Schneller avers that he filed two confidential requests with the Board on October 7, 2012, and December 7, 2012, to investigate two judges of the Orphans Court Division of the Chester County Court of Common Pleas. The Board's General Counsel notified Schneller by letter on October 10, 2013, that the Board was dismissing Schneller's complaints. The Board's letter explained that "after necessary inquiry and careful consideration the Board has determined there was insufficient indication of judicial misconduct to justify further inquiry." Complaint in Mandamus at 3, ¶6.
Before this Court, Schneller argues that the Board failed to discharge its duty under Article V, Section 18(a)(7) of the Pennsylvania Constitution by not initiating formal charges against the two judges, both of whom Schneller contends violated the Code of Judicial Conduct. Schneller requests this Court to compel the Board to initiate a full investigation of his claims, find that there is probable cause to file formal charges against the judges, issue reports to the judges, and initiate disciplinary actions against the judges in the Court of Judicial Discipline.
Section 18(a)(7) provides as follows:
There shall be an independent board within the Judicial Branch, known as the Judicial Conduct Board, the composition, powers and duties of which shall be as follows. . .[t]he board shall receive and investigate complaints regarding judicial conduct filed by individuals or initiated by the board; issue subpoenas to compel testimony under oath of witnesses, including the subject of the investigation, and to compel the production of documents, books, accounts and other records relevant to the investigation; determine whether there is probable cause to file formal charges against a justice, judge or justice of the peace for conduct proscribed by this section; and present the case in support of the charges before the Court of Judicial Discipline.PA. CONST. art. V, §18(a)(7).
The Board has filed preliminary objections on several grounds. The Board first asserts that this Court lacks original jurisdiction over a petition for review in the nature of mandamus where the relief sought is not ancillary to a matter within this Court's appellate jurisdiction. The Board also demurs to Schneller's petition, arguing that the Board is immune and that Schneller has not established a clear legal right or corresponding duty of the Board.
We begin with a review of the principles of mandamus. A writ of mandamus is available only to compel the performance of a ministerial act or mandatory duty where there exists no other adequate and appropriate remedy. Jackson v. Vaughn, 777 A.2d 436, 438 (Pa. 2001). Mandamus lies where there is a clear legal right in the plaintiff and a corresponding duty in the defendant. Porter v. Bloomsburg State College, 301 A.2d 621, 622 (Pa. 1973). The purpose of mandamus is not to establish legal rights, but to enforce those rights which are already established. Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007).
An action in mandamus cannot compel a revision or modification of the decision resulting from the exercise of such discretion even though the decision may have been wrong. Pennsylvania Dental Association v. Commonwealth Insurance Department, 516 A.2d 647, 652 (Pa. 1986). Mandamus is available to compel a tribunal or administrative agency to act only when that tribunal or agency has been "sitting on its hands." Id. In an action for mandamus involving an agency's exercise of discretion, courts may direct the agency to perform the discretionary act; however, courts may not direct the agency to exercise discretion a certain way or direct the retraction or reversal of action already taken. Barge v. Pennsylvania Board of Probation and Parole, 39 A.3d 530, 543 (Pa. Cmwlth. 2012).
We consider, first, the Board's objection that this Court lacks original jurisdiction over Schneller's petition for writ of mandamus because it is not ancillary to a matter in this Court's appellate jurisdiction. We disagree.
This Court considered an argument similar to the Board's in Commonwealth Acting Through Unified Judicial System v. Vartan, 674 A.2d 1156 (Pa. Cmwlth. 1996), rev'd on other grounds, 733 A.2d 1258 (Pa. 1999). In that case, the Administrative Office of Pennsylvania Courts (AOPC) was involved in a contractual dispute with a real estate developer before the Board of Claims. The AOPC petitioned this Court in its original jurisdiction for a writ of mandamus compelling the Board of Claims to quash a subpoena filed by the developer. The developer objected, arguing that this Court lacked authority to issue a writ of mandamus because there was no related appeal pending.
In overruling the objection, we considered the jurisdiction of Pennsylvania's appellate courts over petitions for mandamus relief. We first noted that the Supreme Court lacked jurisdiction over the AOPC's petition because, under Section 721 of the Judicial Code, the Supreme Court has original jurisdiction to issue writs of mandamus only to "courts of inferior jurisdiction." 42 Pa. C.S. §721 (emphasis added). Because the Board of Claims is a quasi-judicial tribunal outside the unified judicial system, we held it was not a "court of inferior jurisdiction" subject to the Supreme Court's original jurisdiction.
The Vartan court then acknowledged a prior decision of the Supreme Court holding that the Superior Court could not assume original jurisdiction over a petition for review in the nature of a former common law writ when no appeal was pending in the court and there was an alternative forum. See Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia County, 489 A.2d 1286 (Pa. 1985). We distinguished that case, however, and held that this Court could exercise original jurisdiction over the AOPC's petition because there was no alternative forum; the Supreme Court's original jurisdiction extends only to "courts of inferior jurisdiction," whereas this Court's original jurisdiction extends both to "courts of inferior jurisdiction and other government units." 42 Pa. C.S. §761(c) (emphasis added). Stated another way, where this Court is the court of last resort as a matter of right, it "may assume original jurisdiction over a petition for review in the nature of a former common law writ, despite the fact that there is no appeal pending in this court." Vartan, 674 A.2d at 1160 (original emphasis omitted).
Section 761(c) of the Judicial Code, which delineates the scope of this Court's jurisdiction over petitions for mandamus, states:
(c) Ancillary matters.--The Commonwealth Court shall have original jurisdiction in cases of mandamus and prohibition to courts of inferior jurisdiction and other government units where such relief is ancillary to matters within its appellate jurisdiction, and it, or any judge thereof, shall have full power and authority when and as often as there may be occasion, to issue writs of habeas corpus under like conditions returnable to the said court. To the extent prescribed by general rule the Commonwealth Court shall have ancillary jurisdiction over any claim or other matter which is related to a claim or other matter otherwise within its exclusive original jurisdiction.42 Pa. C.S. §761(c).
In the case at bar, the Board is not a "court of inferior jurisdiction" to the Supreme Court; therefore, the Supreme Court lacks original jurisdiction over Schneller's petition. This Court, on the other hand, exercises "original jurisdiction of all civil actions or proceedings ... [a]gainst the Commonwealth government[.]" 42 Pa. C.S. §761(a)(1) (emphasis added). Additionally, as noted in Vartan, this Court has original jurisdiction "in cases of mandamus ... to courts of inferior jurisdiction and other government units where such relief is ancillary to matters within its appellate jurisdiction[.]" 42 Pa. C.S. §761(c) (emphasis added). The "Commonwealth government" and "government unit" both include agencies of the unified judicial system. See 42 Pa. C.S. §102.
Section 102 of the Judicial Code contains the following definitions:
"Commonwealth government." The government of the Commonwealth, including the courts and other officers or agencies of the unified judicial system, the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, authorities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or local authority.
* * *
"Government unit." The General Assembly and its officers and agencies, any government agency or any court or other officer or agency of the unified judicial system.
The Board describes itself as "an agency of the judicial system." The citizens of the Commonwealth of Pennsylvania authorized the creation of the Board by constitutional amendment in 1993. The implementing legislation provides as follows:
The constitutional amendment replaced the former Judicial Inquiry and Review Board with a two-tiered disciplinary authority consisting of the Judicial Conduct Board and the Court of Judicial Discipline. "These new bodies, unlike the [Judicial Inquiry and Review Board], are intended to be independent and not under the direct supervision of the Supreme Court." The Honorable Ronald D. Castille, Foreword: A Period of Restoration and Reform, 67 TEMP. L. REV. 509, 510 (1994).
In accordance with section 18 of Article V of the Constitution of Pennsylvania, the Judicial Conduct Board shall be an independent board within the Judicial Branch and shall consist of 12 persons selected as provided in this subchapter.42 Pa. C.S. §2101(a). The Board's authority is clearly delineated and limited to the discipline, removal and retirement of judicial officers. 42 Pa. C.S. §2105. Its membership is prescribed by statute and it is self-governing. See 42 Pa. C.S. §§2102, 2103, 2104. Funding for the Board is secured as part of the annual budget request by the Supreme Court on behalf of the Judicial Branch to the General Assembly. 42 Pa. C.S. §2104. In light of the foregoing provisions, we conclude that the Board is part of the "Commonwealth government" and a "government unit" for purposes of 42 Pa. C.S. §761(a)(1) and (c). Accordingly, we hold that this Court has original jurisdiction over Schneller's petition for mandamus relief and overrule the Board's preliminary objection to this Court's jurisdiction.
Notably, "[m]embers of the Judicial Conduct Board and its chief counsel and staff shall be absolutely immune from suit for all conduct in the course of their official duties." 42 Pa. C.S. §2106.
In its second preliminary objection in the nature of a demurrer, the Board argues that Schneller's action is barred by sovereign immunity because he seeks to compel the Board to perform a discretionary act, not a ministerial or mandatory duty.
The doctrine of sovereign immunity generally bars an action seeking to compel a state party to act. Finn v. Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010). See also 42 Pa. C.S. §2106 (granting absolute immunity to members of the Board and its chief counsel for all conduct in the course of their official duties). However, sovereign immunity will not bar an action in mandamus to compel an agency or officer to perform a ministerial or mandatory statutory duty. Stackhouse v. Pennsylvania State Police, 892 A.2d 54, 59-60 n.6 (Pa. Cmwlth. 2006). Thus, in this case, whether the Board enjoys immunity depends upon whether its duty to investigate the Orphans' Court judges was discretionary, or ministerial or mandatory. An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. Battiste v. Borough of East McKeesport, 94 A.3d 418, 422 (Pa. Cmwlth. 2014).
Article V, Section 18(a)(7) of the Pennsylvania Constitution vests the Board with authority to "investigate complaints regarding judicial conduct filed by individuals [and]...determine whether there is probable cause to file formal charges...." PA. CONST. art. V, §18(a)(7). Article V, Section 18(a)(7) grants broad discretion to the Board. Its authority is analogous to that of a District Attorney, who has prosecutorial discretion to determine whether charges should be brought in a criminal case. In this case, the Board exercised its prosecutorial discretion by considering Schneller's private complaints and concluding there were insufficient grounds for further inquiry against either judge. As this Court noted in Seeton v. Adams, 50 A.3d 268, 273 (Pa. Cmwlth. 2012), although mandamus may lie to compel a public official's performance of a ministerial act or a mandatory duty, "[i]t is not available to revise a public official's decision that results from the exercise of discretion." Because the Board's decision to investigate either of the Orphans' Court judges was discretionary, Schneller's petition is barred by sovereign immunity.
For all of the foregoing reasons, we overrule the Board's preliminary objection to this Court's jurisdiction and sustain its preliminary objection in the nature of a demurrer. Schneller's petition for writ of mandamus is dismissed.
Schneller's "Praecipe for Trial and Jury Trial," which we treat as an application for oral argument, is dismissed as moot. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 11th day of December, 2014, the Judicial Conduct Board's preliminary objections are SUSTAINED in part and OVERRULED in part in accordance with the attached opinion. James D. Schneller's Complaint in Mandamus is DISMISSED. Mr. Schneller's "Praecipe for Trial and Jury Trial" is DISMISSED as moot.
/s/_________
MARY HANNAH LEAVITT, Judge
42 Pa. C.S. §102 (emphasis added).