In re Cohen

1

IN RE: Judge Mark B. Cohen Court of Common Pleas 1st Judicial District Philadelphia County

No. 1 JD 2023

Court of Judicial Discipline of Pennsylvania

March 16, 2023

MELISSA L. NORTON Chief Counsel

JANES P. KLEMAN, JR. Senior Deputy Counsel

JUDICIAL CONDUCT BOARD'S MEMORANDUM OF LAW IN SUPPORT OF REPLY TO OMNIBUS MOTION PURSUANT TO RULE 411 OF THE RULES OF PROCEDURE OF THE COURT OF JUDICIAL DISCIPLINE REQUESTING DISMISSAL OF THE CASE

I. ARGUMENT

a. Standard of review

Judge Cohen's omnibus motion requests to dismiss the Board Complaint, but he does not contest any of the operative facts of the Board Complaint. Indeed, Judge Cohen admits, tacitly, that he made the posts alleged in the Board Complaint and contends that he was entitled to do so on the basis of the rights guaranteed by the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. See, e.g., Judge Cohen's Omnibus Motion, at 12, H 21 ("Judge Cohen's posts are protected speech pursuant to the First Amendment [to] the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution/'). In other words, Judge Cohen asserts 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 due to the operation of the First Amendment and Article I, Section 7. 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). This matter presents a case of first impression for this Court.

When a party requests summary judgment, courts apply the following standard to adjudicate the request:

When a party seeks summary judgment, a court shall enter judgment whenever 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 by additional discovery. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt.

Gallagher v. GEICO Indem. Co., 201 A.3d 136-137 (Pa. 2019) (citations omitted).

However, to be clear, the nature of this case defies traditional summary judgment analysis in some important respects. This is because the question of whether certain speech, I.e., Judge Cohen's Facebook posts, falls within First Amendment protection or is subject to state regulation presents a mixed question of law and fact. See, e.g., 3.S. by M.S. v Manheim Township School District, 263 A.3d 295, 305, at n. 11 (Pa. 2021). Generally, a mixed question of law and fact cannot be resolved at the summary judgment stage of a civil case, because the facts are to be viewed in the light most favorable to the non-moving party, in this case the Board, and questions of fact are to be weighed by the factfinder, in this case, this Court, on the basis of a developed record. See, e.g., Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010). On the other hand, the proper analysis to be employed as to whether or not certain speech falls within First Amendment protections or is subject to state regulation presents a pure question of law, which can be considered at this stage. Manheim Township School District, 263 A.3d at 305, n. 11. (the question of the proper analysis to be used regarding the character of speech under the First Amendment is a question of pure law).

Ultimately, however, as a matter of practicality, the Board recognizes that this Court is both the arbiter of the facts and the law in all cases, unlike traditional civil matters where a trial by jury is a right retained by the parties in traditional litigation. As such, traditional notions of civil practice, while instructive, do not bind this Court in the execution of its mission, which is of far greater importance than traditional civil litigation. Further, and, more importantly, there is no question of fact presented in this case; Judge Cohen has admitted the essential facts of making the Facebook posts cited against him in the Board Complaint. Moreover, both the Board and Judge Cohen recognize that there is effectively no case precedent in the Commonwealth regarding the interplay between the First Amendment and Article I, Section 7 and the Code of Judicial Conduct. Indeed, Article I, Section 7, in some respects, offers even greater protection of expression than the First Amendment. See, e.g., S.B. v. S.S., 243 A.3d 90, 112, 113 (Pa. 2020) (Article I, Section 7 is an ancestor, not a stepchild, of the First Amendment; in certain circumstances, it offers greater protection of expression than the First Amendment). Accordingly, because there is no genuine factual dispute that Judge Cohen made the Facebook posts alleged in the Board Complaint and there is no jurisprudential underpinning to inform the Court's analysis of the issue following trial, the Board accepts that Judge Cohen's omnibus motion is ripe for decision, if for no other reason than to guide any further activity in this case (and beyond) that may follow.

b. The Code of Judicial Conduct vis-a-vis the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution;

i. The Nature of Judge Cohen's Challenge and Standard to Be Applied:

Throughout his omnibus motion, Judge Cohen asserts that his Facebook postings were permissible under the First Amendment by expounding upon what they were not, i.e., "his posts and comments do not support or recommend any political candidate. His posts do not endorse any political candidate or party. His posts do not discuss matters that would come before his Court. His posts consist of many informed and knowledgeable comments on state, national[,] and international affairs/' See Judge Cohen's omnibus motion, at 2, H 1. Therefore, by explaining what his conduct is not, Judge Cohen impliedly concedes that there are circumstances that the Code, as written, properly governs the speech and expressive conduct of the Commonwealth's judges in some factual circumstances, but, in his case, he claims the Board improperly applied the Code to charge him in this Court. Judge Cohen does not claim that the Code's prohibitions on certain types of judicial speech or expression are unconstitutional in all respects. Consequently, Judge Cohen's First Amendment/Article I, Section 7 claim is an "as applied" challenge to the Board's application of the Code in his case. See, e.g., Commonwealth v. Muhammad, 241 A.3d 1149, 1155 (Pa. Super. 2020) (discussing distinction between a "facial" constitutional challenge, which claims that a law is unconstitutional based on its text alone, unmoored from factual circumstance of a case, and an "as applied" constitutional challenge, which claims that the application of a facially-valid law to a particular person under particular circumstances deprives person of a constitutional right) (citations omitted). However, to the extent that Judge Cohen's imprecise and conclusory arguments regarding his First Amendment can be perceived as a "facial" challenge to the Code, and out of necessity to achieve some identifiable standard for these cases, the Board offers the following analysis for this matter of first impression.

This case admittedly presents a crossroads for Pennsylvania judicial discipline jurisprudence. On one hand, it is clear that a prohibition in the Code on certain types of judicial speech and expressive conduct could be considered by this Court to constitute a prohibition on the content of Judge Cohen's speech, which, as to the average citizen, would be subject to a "strict scrutiny" constitutional analysis. See James v. SEPTA, 477 A.2d 1302, 1306 (Pa. 1984). This test requires the government to establish that the challenged law or regulation addresses "a compelling state interest" and that the law is "narrowly tailored to effectuate that interest." See Hiller v. Fausey, 904 A.2d 875, 885-886 (Pa. 2006). Thus, as it has been remarked, the "strict scrutiny" test leaves few survivors in its wake. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 455 (2002); see also Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 165 (2015) ("A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of'animus towards the ideas contained' in the regulated speech.").

Importantly, no state court having direct precedential authority over the issue of a sitting judge's speech vis-a-vis the Pennsylvania Code of Judicial Conduct has addressed the issue of judicial speech or expressive conduct by applying the strict scrutiny standard, and this Court has not previously expounded its views upon the issue, though, to be sure, prior cases in this Court have touched upon a judge's non- criminal speech or expressive conduct. See, e.g., In re Eakin, 150 A.3d 1042 (Pa.Ct.Jud.Disc. 2016) (former Pennsylvania Supreme Court justice found in violation of former Canon 2(A) for emails exchanged among his associates privately using government-supplied computer equipment that raised the appearance of impropriety). In the federal courts having authority over or influence upon this Commonwealth's jurisprudence, a review of the case law demonstrates a somewhat uneven approach to the Code and the First Amendment.

The United States Supreme...