Loading...
HomeMy WebLinkAbout07-011 DARLINGTONHonorable Chester F. Darlington Magisterial District Judge Magisterial District Court 15 -2 -05 1558 Paoli Pike West Chester, PA 19380 Dear Judge Darlington: 2007. I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 6/12/07 DATE MAILED: 6/13/07 07 -011 This Opinion is issued in response to your advisory request dated February 26, Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., would require an incumbent member of the judiciary who is a candidate for election to a judicial seat to file a Statement of Financial Interests and append a copy of such form to the petition to appear on the ballot for election. II. FACTUAL BASIS FOR DETERMINATION: As an incumbent Magisterial District Judge seeking re- election, you request an advisory Opinion from this Commission regarding the requirements for filing Statements of Financial Interests pursuant to Section 1104(b) of the Ethics Act. You note that you are seeking re- election to a fourth term. You have received conflicting information from attorneys and fellow judicial colleagues as to whether a sitting judicial member must file the Statement of Financial Interests form required of candidates under the Ethics Act. You state that some sources have indicated that you must file the form, while others have stated that because judges file other Financial Statement forms required of members of the judiciary by the Pennsylvania Supreme Court, you need not file the form required of candidates under the Ethics Act. You request clarification of this issue. Darlington, 07 -011 June 13, 2007 Page 2 We take administrative notice of the following additional facts. (1) The Supreme Court of Pennsylvania has exclusive power to supervise the Judicial Branch of Pennsylvania government as well as judicial officers. In re Glancey, 515 Pa. 201, 527 A.2d 997 (1987). Article V, Sections 10(a) and (c) of the Pennsylvania Constitution provide in pertinent part as follows: Judicial Administration Section 10. (a) The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace.... (c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace ... and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions. Constitution of Pennsylvania, Article V, Sections 10(a), (c). Canon 7 of the Pennsylvania Code of Judicial Conduct regulates the campaign conduct of both incumbent and non - incumbent candidates for judicial office but does not address the filing of financial interest forms by candidates. By Order of the Pennsylvania Supreme Court, all judicial officers, including but not limited to magisterial district judges, must file statements of financial interest on a form approved by the Court. Such forms are public records and are filed with the Administrative Office of Pennsylvania Courts. Pennsylvania Supreme Court Order No. 47, April 13, 1984. The financial disclosure requirements of the Ethics Act have been ruled unconstitutional as applied to judges in their capacities as judges. Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593 (1983). Woelfel, Advice of Counsel 91 -525, issued March 22, 1991, determined that an incumbent judge of a Court of Common Pleas seeking nomination for the position he already held would not be subject to the requirements of the Ethics Act for filing Statements of Financial Interests. The Advice cited Kremer as holding that the financial disclosure provisions of the Ethics Act (Act 170 of 1978) were unconstitutional infringements upon the Pennsylvania Supreme Court's inherent and exclusive power to govern the conduct of courts and judges. It was further noted that the conduct of members of the judiciary may only be regulated by the Supreme Court. (6) Based upon the Kremer case, the Statement of Financial Interests form promulgated by this Commission over the years has indicated that the filing Darlington, 07 -011 June 13, 2007 Page 3 requirement for judicial candidates applies to non - incumbents only. See also, Mansour, Opinion 97 -006 (in which this Commission determined the proper filing location for non - incumbent candidates for the office of district justice). In March 2007, in a case involving a challenge to the nomination petition of an incumbent Magisterial District Judge running for Judge of the Court of Common Pleas of Armstrong County, the Honorable Barry F. Feudale, Senior Judge of the Commonwealth Court of Pennsylvania, held that the financial statement requirements of the Ethics Act as applied equally to all candidates, including candidates for judicial office, do not infringe upon the Supreme Court's constitutional authority to regulate courts. In re: Nomination Petitions of James H. Owen, A.2d _, 2007 Pa. Commw. LEXIS 199 (Pa. Cmwlth. March 23, 2007). However, Judge Feudale's decision on the merits was made prospective, such that the Order disposing of the case denied the objections to the candidate's nomination petitions and directed that the candidate's name be included on the ballot. By letter dated May 10, 2007, you were notified of the date, time and location of the public meeting at which your request would be considered. (7) III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Section 1104(b) of the Ethics Act provides as follows: § 1104. Statement of financial interests required to be filed (b) Candidate.- - (1) Any candidate for a State -level public office shall file a statement of financial interests for the preceding calendar year with the commission on or before the last day for filing a petition to appear on the ballot for election. A copy of the statement of financial interests shall also be appended to such petition. (2) Any candidate for county -level or local office shall file a statement of financial interests for the preceding calendar year with the governing authority of the political subdivision in which he is a candidate on or before the last day for filing a petition to appear on the ballot for election. A copy of the statement of financial interests shall also be appended to such petition. No petition to appear on the ballot for election shall be accepted by the respective State or local election officials unless the petition has appended thereto a statement of financial interests as set forth in paragraphs (1) and (2). Failure to file the statement in accordance with the provisions of this chapter shall, in (3) Darlington, 07 -011 June 13, 2007 Page 4 addition to any other penalties provided, be a fatal defect to a petition to appear on the ballot. (d) Failure to file required statement. - -No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a statement of financial interests as required by this chapter. 65 Pa.C.S. § §1104(b), (d). On its face, Section 1104(b) of the Ethics Act requires all candidates for state level, county level, or local office to file a Statement of Financial Interests on or before the last day for filing a petition to appear on the ballot for election. Additionally, such candidates are required to attach a copy of the completed Statement of Financial Interests form to the petition to appear on the ballot. The Ethics Act defines the term "candidate" as follows: "Candidate." Any individual who seeks nomination or election to public office by vote of the electorate, other than a judge of elections, inspector of elections or official of a political party, whether or not such individual is nominated or elected. An individual shall be deemed to be seeking nomination or election to such office if he has: (1) received a contribution or made an expenditure or given his consent for any other person or committee to receive a contribution or make an expenditure for the purpose of influencing his nomination or election to such office, whether or not the individual has announced the specific office for which he will seek nomination or election at the time the contribution is received or the expenditure is made; or (2) taken the action necessary under the laws of this Commonwealth to qualify himself for nomination or election to such office. The term shall include individuals nominated or elected as write -in candidates unless they resign such nomination or elected office within 30 days of having been nominated or elected. 65 Pa.C.S. § 1102. The definition of the term "candidate" does not exclude judges who are running for judicial office. We note that there are legal arguments on both sides of the issue of whether judges as candidates are required to file Statement of Financial Interests pursuant to the Ethics Act. The following arguments, most of which are referenced in Judge Feudale's decision Darlington, 07 -011 June 13, 2007 Page 5 in the Owen case, would support requiring incumbent judges as candidates to file the form: (1) the Kremer case dealt with sitting jurists as opposed to candidates; (2) as a candidate, an incumbent judge is not performing judicial acts or functions and does not fall within the exclusive jurisdiction of the Supreme Court; (3) the Supreme Court does not have constitutional authority to supervise elections; (4) the requirements for filing Statements of Financial Interests as applied equally to all candidates do not infringe on the Supreme Court's constitutional authority to regulate courts; (5) affording different treatment to incumbent and non - incumbent candidates for judicial seats results in unequal protection of the laws and an unfair advantage for incumbent judges in the elections; and (6) the Ethics Act as remedial legislation is to be liberally construed to provide complete financial disclosure by those serving or seeking to serve the public in public offices or in positions of public employment. See, 65 Pa.C.S. § 1101.1; Maunus v. State Ethics Commission, 518 Pa. 592, 598, 544 A.2d 1324, 1327 (1988). The position opposing such a filing requirement for incumbent judges as candidates might be based upon the following arguments: (1) the Pennsylvania Supreme Court has exclusive authority to supervise the Judicial Branch; (2) judicial offices are within the Judicial Branch; (3) the Supreme Court has acted to require the filing of the Court's own financial interest statements by incumbent judges but not by candidates; and (4) the Court's financial interest statements are public records affording the public access to the financial information of judges as the Supreme Court deems appropriate. Regardless of which position this Commission adopts in the instant matter, the fundamental issue that you have raised will ultimately be for the Supreme Court to decide. We parenthetically note that in the Owen matter, Judge Feudale's decision was appealed to the Supreme Court. However, no precedent was established. The Supreme Court issued a per curiam Order merely affirming Judge Feudale's Order, specifically, the final disposition denying the objections to the candidate's nomination petitions and directing that the candidate's name be included on the ballot. In re Nomination Petitions of Owen, 2007 Pa. LEXIS 951 (Pa. April 30, 2007). There was no indication by the Supreme Court as to whether it agreed or disagreed with Judge Feudale's Opinion on the substantive issue. The per curiam Order of the Supreme Court affirming the non - precedential Order of Judge Feudale as a single Judge of Commonwealth Court had no precedential effect. See, Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898 (1996) (A per curiam Order of the Supreme Court that simply affirms or reverses the final order of a lower court merely signifies the Supreme Court's agreement or disagreement with the lower court's final disposition); see also, Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5 (2003); Internal Operating Procedures of the Commonwealth Court of Pennsylvania, Section 414 ( "A single -judge opinion, even if reported, shall be cited only for its persuasive value, not as a binding precedent." Id.). It is our duty as the administrative agency charged with interpreting the Ethics Act to issue an Opinion on the substantive issue, and we shall do so. Having thoughtfully considered both sides of the issue, we find the analysis of Judge Feudale to be compelling. We are persuaded that a candidate "wears a different hat" than that of a judge, and that the requirements imposed upon a judge as a candidate are not subject to the exclusive supervisory authority of the Supreme Court. Therefore, in the absence of any judicial precedent on this specific issue, we hold that members of the judiciary who are candidates are required to file Statements of Financial Interests in conformance with § 1104(b) of the Ethics Act and the Regulations of this Commission at 51 Pa. Code § 11.1 et seq., using the form promulgated by this Commission. As a candidate for the office of Magisterial District Judge, you must file the Statement of Financial Interests form with the county in which you are a candidate. Cf., Mansour, supra. Candidates for all other judicial offices must file their forms with this Commission. A candidate for any judicial office must attach a copy of the completed Darlington, 07 -011 June 13, 2007 Page 6 Statement of Financial Interests form to the petition to appear on the ballot. Like Judge Feudale, we make our ruling prospective, for reasons of fairness. (Cf., Confidential Opinion, 92 -008, in which we made prospective our ruling that constables would no longer be excluded from the requirements for filing Statements of Financial Interests based upon judicial decisions establishing that constables were not part of the Judicial Branch.) In the instant matter, we shall exercise our administrative discretion and direct that the application of the financial statement filing requirements to incumbent judges as candidates shall commence effective for forms due to be filed July 1, 2007, or thereafter. Commission staff is authorized to take any necessary and advisable steps to notify the county election boards, Pennsylvania Department of State, and the Administrative Office of Pennsylvania Courts of this decision. Woelfel, Advice of Counsel 91 -525 is overruled. A copy of this Opinion shall be provided to Judge Woelfel. The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. IV. CONCLUSION: Members of the judiciary who are candidates are required to file Statements of Financial Interests as candidates in conformance with § 1104(b) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(b), and the Regulations of the State Ethics Commission at 51 Pa. Code § 11.1 et seq., using the form promulgated by the Pennsylvania State Ethics Commission. This decision is effective prospectively, such that the application of the financial statement filing requirements to incumbent judges as candidates shall commence effective for forms due to be filed July 1, 2007, or thereafter. Woelfel, Advice of Counsel 91 -525 is overruled. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10) of the Ethics Act, the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair