Opinion
1 JD 2023
04-20-2023
IN RE: Judge Mark B. Cohen Court of Common Pleas 1st Judicial District Philadelphia County
JUDICIAL CONDUCT BOARD'S REPLY AND MEMORANDUM OF LAW TO NEW MATTER OF RESPONDENT JUDGE MARK B. COHEN
AND NOW, this 20th day of April, 2023, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board) by and through undersigned counsel, and files this Reply to Judge Cohen's New Matter and accompanying Memorandum of Law:
38. The averment restates conclusions of law for which no response is necessary. To the extent that this averment is construed to allege facts, they are denied and strict proof of same is demanded. The Board adopts its prior memorandum of law, filed March 16, 2023, in reply to Judge Cohen's Omnibus Pre-trial Motion and the attached memorandum of law below, as its response to the legal conclusions set forth in this averment. The March 16, 2023 memorandum of law is attached hereto, made a part hereof, and incorporated by reference as though set forth in full.
39. The averment restates conclusions of law for which no response is necessary. To the extent that this averment is construed to allege facts, they are denied and strict proof of same is demanded. The Board adopts its prior memorandum of law, filed March 16, 2023, in reply to Judge Cohen's Omnibus Pre-trial Motion, as its response to the legal conclusions
set forth in this averment, which is attached hereto, made a part hereof, and incorporated by reference as though set forth in full.
40. The averment restates conclusions of law for which no response is necessary. The Board adopts its prior memorandum of law, filed March 16, 2023, in reply to Judge Cohen's Omnibus Pre-trial Motion, as its response to the legal conclusions set forth in this averment, which is attached hereto, made a part hereof, and incorporated by reference as though set forth in full.
41. The averment restates conclusions of law for which no response is necessary. To the extent that this averment is construed to allege facts, they are denied and strict proof of same is demanded. In part, the Board adopts its prior memorandum of law, filed March 16, 2023, in reply to Judge Cohen's Omnibus Pre-trial Motion, as its response to the legal conclusions set forth in this averment, which is attached hereto, made a part hereof, and incorporated by reference as though set forth in full. The Board will present the remainder of its argument regarding this conclusion of law in the attached memorandum of law.
42. The averment states conclusions of law for which no response is necessary. To the extent that this averment is construed to allege facts, they are denied and strict proof of same is demanded. The Board will submit its counter argument regarding this conclusion in the attached memorandum of law.
43. The averment states conclusions of law for which no response is necessary. To the extent that this averment is construed to allege facts, they are
denied and strict proof of same is demanded. The Board will submit its counter argument regarding this conclusion in the attached memorandum of law.
44. This averment states conclusions of law for which no response is necessary. The Board adopts its prior memorandum of law, filed March 16, 2023, in reply to Judge Cohen's Omnibus Pre-trial Motion, as its response to the legal conclusions set forth in this averment, which is attached hereto, made a part hereof, and incorporated by reference as though set forth in full.
45. Denied. To the extent that this averment is construed to allege facts, they are denied and strict proof of same is demanded. The Board will submit its counter argument regarding the conclusions of law in this averment in the attached memorandum of law.
WHEREFORE, based upon the averments set forth above and the arguments in the Board's supporting Memorandum, incorporated herein by reference as though set forth in full, the Board respectfully requests that this Honorable Court DISMISS Judge Cohen's New Matter or to grant such other relief as it deems appropriate.
MELISSA L. NORTON Chief Counsel JAMES P. KLEMAN, JR. Senior Deputy Counsel Pa. Supreme Court ID No. 87637 Judicial Conduct Board Pennsylvania Judicial Center
I. ARGUMENT
a. Standard of review
Effectively, Judge Cohen's "New Matter" is merely a late-filed addendum to his previously unsuccessful omnibus motion. Therefore, it should be denied due to the fact that it was filed beyond the 30-day time constraint of Court of Judicial Discipline Rule of Procedure 411(A) and because any ground for relief raised therein but not raised previously was waived, pursuant to the operation of CJDRP 411(E).
Aside of the untimely and waived nature of the content of his New Matter, Judge Cohen asserts, for a second time, that he is entitled to the entry of summary judgment as a matter of law in his favor on all counts charged in the Board Complaint on the bases of the defenses raised therein. See, e.g., In re Stoltzfus, 29 A.3d 151, 152 (Pa.Ct.Jud.Disc. 2011) (where facts undisputed and stipulated, request to dismiss Board complaint by respondent judge treated by CJD as motion for summary judgment). Summary judgment should be entered by a court whenever, viewing the evidentiary record in a light most favorable to the non-moving party, the record establishes that there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established. Gallagher v. GEICO Indent. Co., 201 A.3d 136-137 (Pa. 2019) (citations omitted).
b. Judge Cohen's affirmative defenses:
i. The Charged Facebook Postings were protected speech under the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution:
The Board expounded on this issue throughout its prior memorandum filed March 16, 2023, in reply to Judge Cohen's Omnibus Pre-trial Motion, which is attached hereto and adopted by the Board for purposes of its response to this duplicative claim.
ii. The Charged Code Provisions Cannot Stand because "the Rules are too vague and would violate due process under the Fourteenth Amendment of the United States Constitution and related provisions of the Pennsylvania Constitution" :
By this assertion, Judge Cohen attempts to recast his bare First Amendment arguments into a due process claim. It is well settled that the Due Process Clause of the 14th Amendment to the United States Constitution is violated if a criminal statute is so vague that it fails to provide reasonable notice to a person who purportedly violates the statute in question. See Commonwealth v. Bunting, 426 A.2d 130, 135 (Pa. Super. 1981). Generally, a criminal statute is "void for vagueness" when it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute or is so indefinite that it encourages arbitrary and erratic arrests and convictions. Id., at 135. Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the void-for-vagueness doctrine demands a showing of greater specificity than in other matters. Id., at 136.
This standard is, like many other facets of the criminal law, somewhat inapt in judicial disciplinary matters. As our Supreme Court observed when speaking about former Canon 1 (now, effectively, Canon 1, Rule 1.2),
It has been urged that these provisions are hortatory in character and thus have no independent effect. Notwithstanding the aspirational quality of the canons, it should be clear that they describe the type of conduct to which a judicial officer will be required to conform and that a departure will occasion a censure. Nor should one who asserts his or her competency to hold judicial office have difficulty in understanding concepts such as "integrity", "independence" and "impartiality." An argument relying upon vagueness will not prevail. The specificity which is being urged is not only unnecessary, it is also inappropriate for a code of this nature.
It should not be necessary forthose aspiring to hold the esteemed office of judge to be given specific examples where one's impartiality may be reasonably questioned. The judgment of a judicial officer should be sensitive to such situations. If not, there could be serious question as to the competency of that individual to hold judicial office. This Court has consistently held judicial officers to the standards set forth in the Code since its adoption. These belated complaints as to its clarity and binding effect ring hollow in this setting.Matter of Cunningham, 538 A.2d 473, 482 (Pa. 1988) (footnotes omitted).
Moreover, and more importantly, by his claim that the "Code of Judicial Conduct does not address blogging or social media speech" and thus, "fail[s] to provide adequate notice of warning that his speech would be a violation," merely presents the age-old logical fallacy of "begging the question." Our Supreme Court has held that "[where] one is on fair notice that his own conduct is within that prohibited by regulation, he cannot attack the regulation simply because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit." See Office of Disciplinary Counsel v. Campbell, 345 A.2d 616, 621 (Pa. 1975), cert, denied 424 U.S. 926 (1976), cited by Cunningham, 538 A.2d at 482, n. 17. Here, Judge Cohen was certainly on notice that he could not engage in impermissible political activity (political speech being one such activity) on behalf of candidates or political organizations (Canon 4, Rule 4.1(A)(11)); he was on notice that he could not lend the prestige of his office to further his own personal interests or those of others (Canon 1, Rule 1.3); and he was on notice that he was required to adhere to all of the other Canons and Rules that he violated by his Facebook posts that resulted in the present charges. The fact that his problematic speech took place online versus in person or in print is not relevant for the application of the Code, nor does it render the present charges void for vagueness simply due to the medium of the speech. See, e.g., Cunningham, 538 A.2d at 482; Campbell, 345 A.2d at 621.
Finally, and most importantly, Judge Cohen has been serving as a judge since 2018, some four years after the present Code of Judicial Conduct took effect. In that time, up to the day Judge Cohen was charged by the Board, this Court resolved several internet or electronic-speech cases which constructively put the entirety of the Commonwealth's judges on notice that their speech in those domains could result in violations of the Code. See, e.g., In re Eakin, 150 A.3d 1042 (Pa.Ct.Jud.Disc. 2016); see, e.g., In re Shaw, 192 A.3d 350 (Pa.Ct.Jud.Disc. 2018); see, e.g., In re LeFever, __A.3d _ (Pa.Ct.Jud.Disc. 2022), 7 JD 2020 (opinion filed 2/14/2022). Therefore, Judge Cohen's claim of ignorance regarding his responsibilities to adhere to the Code and the Constitution in social media postings is pointedly without merit. See, e.g., In Re Bruno, 101 A.3d 635, 684 n. 27 (Pa. 2014) ("[We] note that not only the formal rules and the spirit in which they were drafted, but also each case of judicial wrongdoing and attendant disciplinary and supervisory actions puts judges on notice of the potential pitfalls and consequences of judicial wrongdoing.").
iii. The Complaint is barred bv the doctrine of laches:
The doctrine of laches, an equitable doctrine precluding the presentation of claims where a moving party has "slept on their rights," is a recognized defense in judicial discipline cases. See, e.g., In re Lokuta, 964 A.2d 988, 1131 (Pa.Ct.Jud.Disc. 2008), stayed by 968 A.2d 227 (Pa. 2009), remanded to 989 A.2d 942 (Pa.Ct.Jud.Disc. 2010), affirmed 11 A.3d 427 (Pa. 2011) (discussing laches in context of judicial disciplinary proceedings). The defense of laches is applicable in this context because, there is no precise limitation of time regarding the filing of a Board complaint in this Court after the conclusion of the Board's investigation. See Mino v. WCAB, 990 A.2d 832, 843 (Pa Cmwlth. 2010) (doctrine of laches is applicable in administrative proceedings where no time limitation is applicable) (citation omitted). Generally, the affirmative defense of laches requires a defendant to prove (as the moving party) that the complaining party was guilty of want of due diligence in failing to institute the action to the defendant's prejudice. Lokuta, 964 A.2d at 1131 (citations omitted). The prejudice prong is established where, for example, witnesses die or become unavailable, records are lost or destroyed, and changes in position occur due to the anticipation that a party will not pursue a particular claim. Id. (citations omitted). In other words, the application of the defense of laches requires not only an unjustified delay, but also that the defendant's position or rights be prejudiced as a result of the delay. Id. In cases where, as here, the Commonwealth is the complaining party, the party asserting laches must make a "stronger showing" that laches applies to bar the Commonwealth from prosecuting its claim. Id., at 1131, FN 59 (citations omitted).
By way of background, the Board received the initial information that spurred its investigation against Judge Cohen on November 22, 2021. Based on that information, then-Chief Counsel Richard Long opened a complaint against Judge Cohen on December 1, 2021. Thereafter, Board staff investigated the matter and, based on the fruits of this investigation, undersigned counsel requested authorization from the Board to issue a Notice of Full Investigation (NOFI) to Judge Cohen. Upon receiving authorization, undersigned counsel sent the NOFI to Judge Cohen on April 20, 2022. Undersigned counsel received Judge Cohen's NOFI response via his counsel on or about May 5, 2022. Thereafter, undersigned counsel deposed Judge Cohen at the Board's offices on July 19, 2022. Through the Board's investigator, assigned counsel learned that Judge Cohen continued to make inappropriate posts to his Facebook page, and, as a result, undersigned counsel was obliged to present the matter to the Board again to request authorization to issue a Supplemental NOFI to Judge Cohen. Undersigned counsel received this authorization from the Board and sent the Supplemental NOFI to Judge Cohen on December 6, 2022. Judge Cohen responded to the Supplemental NOFI on January 4, 2023. Thereafter, undersigned counsel sought and received authorization from the Board to file the present Board Complaint. Undersigned counsel filed the Board Complaint in this Court on February 23, 2023.
As this procedural history shows, from its inception to its conclusion by the filing of the Board Complaint, the Board's investigation of Judge Cohen lasted approximately a mere 15 months. Consequently, there was no "unjustified delay" in this case, and Judge Cohen's defense of laches cannot stand. Further, Judge Cohen can hardly demonstrate any prejudice accruing to him by the length of this investigation. Judge Cohen has admitted making the posts for which he was investigated and charged. See Judge Cohen's Answer, at ¶¶ 8,9. Further, all the persons who are potential witnesses for trial are still living and available to testify. Judge Cohen will be provided with any statements from these witnesses by the 60-day discovery deadline set forth at CJDRP 401(A). As such, Judge Cohen's ability to formulate a defense has not been prejudiced by the length of the investigation between the initial complaint to the Board and the filing of formal charges with this Court in this matter. Moreover, the claim that "nobody told [Judge Cohen] that it was wrong to continue [making political posts] or was prohibited until the current charges were made" is irrelevant. First, before making his posts now subject to formal charges, had Judge Cohen any questions regarding the law of judicial discipline regarding political speech and his use of social media, Judge Cohen could have sought guidance from the bodies authorized to give such guidance, i.e., the State Conference of Trial Judges' Ethics Committee or the newly-created Pennsylvania Judicial Ethics Advisory Board. He did not, and it is not the Board's purview to offer such guidance in contravention of the Code. Rather, the Board's purview is to investigate and resolve complaints of judicial misconduct, which it has done here by filing the present Board Complaint. Moreover, as it has often been said, and is especially the case for judges, see Cunningham, supra, "Ignorance of the law is no defense." See, e.g., Commonwealth v. Herman, 161 A.3d 194, 214, 215 (Pa. 2017) (holding that mens rea presumption requires knowledge only of the facts that make defendant's conduct illegal; knowledge of illegality is required only where statute imposes that requirement). Further, this argument, for the reasons stated above at section ii, is specious given the fact that Judge Cohen has held office since the adoption of the 2014 Code and this Court's subsequent adjudications. Accordingly, his defense of laches fails.
iv. Judge Cohen's Facebook posts were permissible under Canon 3, Rule 3.7 and Comment nine of Canon 4, Rule 4.1:
Regarding Judge Cohen's argument about Canon 3, Rule 3.7, the Board previously addressed this in its prior March 16, 2023 memorandum in reply to Judge Cohen's Omnibus pretrial Motion at pages 14-16, which is attached hereto and adopted by the Board for purposes of its response to this duplicative claim.
As to comment nine of Canon 4, Rule 4.1, the Board previously addressed this argument in its prior March 16, 2023 memorandum in reply to Judge Cohen's Omnibus Pre-trial Motion at pages 18-20, which is attached hereto and adopted by the Board for purposes of its response to this duplicative claim.
v. This complaint must be dismissed because it is the product of a selective prosecution:
In Pennsylvania, a claim of selective prosecution is a complete defense to a charge of criminal conduct, in which the accused bears the burden of pleading the existence of its elements. Commonwealth v. Kane, 188 A.3d 1217, 1230 (Pa. Super. 2018) (citation omitted). In order to establish a prima facie case of selective prosecution, the defendant must establish, first, that others similarly situated were not prosecuted for similar conduct and, second, that the Commonwealth's discriminatory prosecutorial selection was based on impermissible grounds such as race, religion, the exercise of some constitutional right, or any other such arbitrary classification. Id. (citation omitted). The burden is on the defense to establish the claim, and it is erroneous to shift the burden to the prosecution to establish or refute it. Id. (citation omitted).
Missing from the recitation of Judge Cohen's inflammatory claim is the fact that Judge Cohen, himself, wanted this prosecution to go forward in order to, in his words, "raise these issues [about Facebook posts] before the Court of Judicial Discipline so an opinion can set forth what a Judicial Officer is allowed to do in this type of posting since Judge Cohen believes his postings are consistent with the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution." See Judge Cohen's Omnibus Motion Pursuant to Rule 411 of the Rules of Procedure of the Court of Judicial Discipline Requesting Dismissal of the Case, 3/9/2023, at ¶ 6. Perhaps this is why Judge Cohen flatly rejected any private resolution of this matter via a Letter of Counsel, which assigned counsel presented to his counsel as a potential resolution of this case after deposing Judge Cohen. Instead, Judge Cohen amplified the political rhetoric of his Facebook posts, which led to the Supplemental NOFI and the filing of the Board Complaint. Normally, assigned counsel would be unable to present these facts for the Court's consideration, but, because Judge Cohen has raised the issue, the Board has a right to fair response. See, e.g., Commonwealth v. Fischere, 70 A.3d 1270, 1277-1278 (Pa. Super. 2013) (defendant may "open the door" to otherwise impermissible inquiry or evidence from the Commonwealth under "fair response" doctrine). Thus, the present charges were not filed against Judge Cohen for any impermissible purpose, as he now claims, but, instead, were filed because he persisted in his misconduct, thereby flouting the Code, as well as the Board and its authority.
c. CONCLUSION:
For the foregoing reasons, the Board respectfully requests that this Court DISMISS Judge Cohen's New Matter or to grant such other relief as it deems appropriate.
VERIFICATION
I, James P. Kiernan, Jr., Deputy Counsel to the Judicial Conduct Board, verify that the facts set forth in the foregoing Reply and attached Memorandum of Law are true and correct to the best of my knowledge, information, and belief. I understand that the statements made in the foregoing Reply and attached memorandum are subject to the penalties of 18 Pa.C.S.A. § 4904, regarding unsworn falsification to authorities.
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System that require filing confidential information and documents differently than non-confidential information and documents.
PROOF OF SERVICE
In compliance with Rule 122 of the Court of Judicial Discipline Rules of Procedure, on April 20, 2023, a copy of the Board's Reply and attached Memorandum of Law was sent by UPS Overnight mail to Judge Cohen's counsel, Samuel C. Stretton, Esquire, at the following address:
Samuel C. Stretton, Esquire 103 South High Street P.O. Box 3231 West Chester, PA 19381-3231
ATTACHMENT OMITTED