Structural Error; Constitutionality of Senior Judge’s Dual Appointment to Tax Board
In re Prospect Crozer LLC, 283 A.3d 428 (Pa. Cmwlth. 2022), allocatur granted May 31, 2023, appeal dockets 37 – 70 MAP 2023
Taxpayer that owned 34 separate parcels of real estate appealed the $80 million assessed value of the parcels as excessive. The county board of assessment appeals denied the appeal. Taxpayer appealed to the Court of Common Pleas of Delaware County (trial court). Senior Judge Braxton ultimately held that the total fair market value of the parcels was $74 million.
Taxpayer appealed and filed an application to vacate on the basis of structural error, arguing that Senior Judge Braxton held a position of profit with the Philadelphia Tax Board at the same time he served as a judge on the instant tax appeals, which rendered his 34 orders null and void in accordance with Article VI, Section 2 of the Pennsylvania Constitution, which provides that:
No member of Congress from this State, nor any person holding or exercising any office or appointment of trust or profit under the United States, shall at the same time hold or exercise any office in this State to which a salary, fees or perquisites shall be attached. The General Assembly may by law declare what offices are incompatible.
The School District responded that Taxpayer’s failure to seek Senior Judge Braxton’s disqualification at the earliest opportunity precludes it from raising the issue at the appellate stage of the proceeding. The School District alternatively argued that Article V, Section 17(a) applies only to commissioned judges and justices, not to senior judges: it requires judges to work “full time,” but senior judges work part-time, and magistrate judges are permitted to have a law practice and other employment. Moreover, the School District responded that Senior Judge Braxton was directed by the AOPC to complete his judicial per diem assignment notwithstanding his appointment to the Philadelphia Tax Board.
Commonwealth Court summarized the subsequent procedural history and record created before the trial court as follows:
Taxpayer’s affidavits related to how it learned of Senior Judge Braxton’s dual service. Leslie Gerstein, an attorney at the firm of Klehr, Harrison, Harvey, Branzburg, LLP, attested that she observed Senior Judge Braxton participating in hearings of the Philadelphia Tax Board in late Fall of 2019. Luke McLoughlin, an attorney at the firm Duane Morris, LLP, attested that on or about December 18, 2019, he attended a hearing at the Philadelphia Tax Board where he observed a nameplate for Senior Judge Braxton. In February 2020, McLoughlin learned from the City of Philadelphia Law Department that Senior Judge Braxton was elected to the Philadelphia Tax Board on May 16, 2019. McLoughlin then submitted a Right-to-Know Law14 request for information on the date of Senior Judge Braxton’s first paycheck for his service on the Philadelphia Tax Board; McLoughlin received that information on June 5, 2020. Alan Kessler, also an attorney with Duane Morris, LLP, attested that in January 2020, he tasked the firm’s librarian with determining when Senior Judge Braxton began serving on the Philadelphia Tax Board, but the librarian was unsuccessful. Kessler also attested that in January 2020, he learned from Gerstein that she had seen Senior Judge Braxton participating in a hearing before the Philadelphia Tax Board in the Fall of 2019.
Taxpayer also submitted a record certification from Geoff Moulton, the Court Administrator of Pennsylvania, dated March 20, 2020. That certification stated as follows:
After an examination by the Administrative Office of Pennsylvania Courts (“AOPC”) of its records pertaining to the time period from 2017 through 2020, as well as an examination of the records of the Prothonotary of the Supreme Court of Pennsylvania, I hereby certify there is no record of entry of an order, decision, or other determination of the Supreme Court of Pennsylvania, the Chief Justice, or any other justice, or AOPC approving simultaneous service, by the Honorable John L. Braxton on the Philadelphia Board of Revision of Taxes and as a senior judge within Pennsylvania’s Unified Judicial System. Any such record or entry would be in my custody as Court Administrator of Pennsylvania.
N.T., 4/20/2022, at 29, Exhibit C-7.
The School District offered the testimony of Senior Judge Braxton. He testified that in or around June 2017, he was assigned the instant tax matter and all related tax appeals. He stated that he was elected to the Philadelphia Tax Board on May 16, 2019.
On June 24, 2019, while he was presiding over another one of Taxpayer’s related tax appeals,15 Senior Judge Braxton informed the parties that he was retiring from judicial service because he “had been elected by the Board of Judges of Philadelphia County” to the Philadelphia Tax Board. N.T., 4/20/2022, at 63. Senior Judge Braxton testified that he did not know “the actual date” that he began sitting on the Philadelphia Tax Board, explaining that he had to go through orientation before hearing cases. Id. Senior Judge Braxton agreed that he received his first compensation for his position with the Philadelphia Tax Board on June 16, 2019. Acknowledging that he did not discuss his compensation with the parties on June 24, 2019, Senior Judge Braxton explained that by telling the parties of his appointment, he was telling them that he was “being paid.” Id. at 84.
Senior Judge Braxton testified that he advised Joe Mittleman, Director of Judicial District Operations for the AOPC, that he had been appointed to the Philadelphia Tax Board and talked about “whether or not [he] should finish things or just walk away.” N.T., 4/20/2022, at 65, 68. Senior Judge Braxton retired from judicial service on January 24, 2020.
On May 4, 2022, the trial court issued a report on the factual questions set forth in this Court’s March 17, 2022, order.
Regarding the date on which Senior Judge Braxton assumed his position on the Philadelphia Tax Board and began receiving compensation therefor, the trial court summarized the evidence as follows. Both the testimony of Senior Judge Braxton and the Declaration of the Director of Human Resources for the City of Philadelphia established the date of Senior Judge Braxton’s appointment to the Philadelphia Tax Board as May 19, 2019. The parties stipulated that Senior Judge Braxton received his first paycheck from the Philadelphia Tax Board on June 16, 2019. The trial court credited Senior Judge Braxton’s testimony that he began hearing cases as a member of the Philadelphia Tax Board sometime in the Fall of 2019 but did not remember the exact date because he had to undergo orientation before hearing cases.
Regarding the question of whether Senior Judge Braxton’s work on Taxpayer’s assessment appeals, while simultaneously serving on the Philadelphia Tax Board, had been approved by the Pennsylvania Supreme Court, the trial court summarized the evidence as follows. A March 2020 record certification from Geoff Moulton, the Court Administrator of Pennsylvania, stated that “there is no record or entry of an order, decision, or other determination of the Supreme Court of Pennsylvania, the Chief Justice or any other Justice, or AOPC approving simultaneous service, by [Senior Judge Braxton], on the [Philadelphia Tax Board] and as a senior judge within Pennsylvania’s Unified Judicial System.” Trial Court Op., 5/4/2022, at *4, Finding of Fact No. 7.b. Senior Judge Braxton submitted his resignation as a senior judge in late 2019 and officially ended his judicial service on January 24, 2020. The trial court credited Senior Judge Braxton’s testimony that he informed Mittleman of his election to the Philadelphia Tax Board; the complex nature of his judicial assignments; that he could finish up those cases or walk away; and that Mittleman told him to finish his judicial assignments. Senior Judge Braxton’s communications with the AOPC were oral not written.
Regarding the date that Taxpayer learned that Senior Judge Braxton adjudicated its assessment appeals after assuming his position on the Philadelphia Tax Board, the trial court summarized the evidence as follows. On June 24, 2019, Senior Judge Braxton informed counsel for the parties that he was “going to be sitting in Philadelphia as a member of the Board of Revision of Taxes[.]” Id. at 6, Finding of Fact No. 8.c. Senior Judge Braxton advised the parties that “as soon as I leave here, I’m going to do that other post. And that’s why I can’t linger here. I have to get this matter done. And the AOPC, the Supreme Court wants me to just finish this and then I will go on to my next assignment …. I’m going to be sitting in Philadelphia as a member of the Board of Revision of Taxes over there.” Id. at 6, Finding of Fact No. 8.d. The affidavits from Gerstein, McLoughlin, and Kessler, as well as the email exchange between McLoughlin and the Philadelphia City Law Department, demonstrated that Senior Judge Braxton began hearing cases for the Philadelphia Tax Board in the Fall of 2019. Id. at 6, Finding of Fact No. 8.b.
The trial court credited Senior Judge Braxton’s testimony that he timely notified representatives of the AOPC of his appointment to the Philadelphia Tax Board and received approval to complete his outstanding judicial assignments. Trial Court Op., 5/4/2022, at 7, Finding of Fact No. 10.
On or about May 4, 2022, Taxpayer submitted supplemental findings of fact to the trial court to address new evidence. Specifically, it sought to admit into evidence an email exchange with the AOPC (Exhibit C-19) and a copy of an affidavit from Mittleman (Exhibit C-20), which refuted Senior Judge Braxton’s characterization of their conversations. Taxpayer explained that neither was available at the time of the April 20, 2022, evidentiary hearing. In response, the School District moved to strike and preclude Taxpayer’s submissions.
By order dated May 4, 2022, the trial court granted the School District’s motion as to Exhibit C-19. It did so for the stated reason the record was closed at the end of the hearing on April 20, 2022, and Taxpayer had not requested to keep the record open for an affidavit from Mittleman. Trial Court Order, 5/4/2022, at 2.
On May 5, 2022, Taxpayer sought reconsideration, explaining that the Mittleman affidavit only became available on May 4, 2022. Further, the trial court’s order striking Exhibit C-19 did not refer to Exhibit C-20.
On May 18, 2022, the trial court denied reconsideration. It clarified its order of May 4, 2022, and struck both Exhibits C-19 and C-20, for the stated reason that the record closed on April 20, 2022. Accordingly, the trial court refused to supplement the record with after-discovered evidence.
Slip op at 12-17.
On appeal, Commonwealth Court granted Taxpayer’s application to vacate the trial court’s orders, concluding that:
Senior Judge Braxton forfeited his judicial office no later than June 16, 2019, when he began to receive compensation in his “position of profit” on the Philadelphia Tax Board. PA. CONST. art. V, § 17(a). The 34 orders he issued in this case are nullities because they were issued after he forfeited his judicial office.
Slip op. at 29. Commonwealth Court rejected the School District’s waiver argument reasoning that Taxpayer exercised due diligence:
[Taxpayer] learned in December of 2019 that Senior Judge Braxton may have started his position at the Philadelphia Tax Board before completing his judicial assignments on Taxpayer’s tax appeals. Taxpayer then took prompt and reasonable steps to ascertain the facts before filing an application to vacate in March of 2020. Given this history, we reject the School District’s contention that Taxpayer’s application to vacate was untimely filed. The facts had to be determined before appropriate relief could be sought.
Slip op. at 28. The court further held that Article V, Section 17(a) of the Pennsylvania Constitution applies to senior judges, reasoning that:
Article V, Section 17(a) applies to “judicial duties,” and senior judges assume judicial duties. In re Cain established that it is the work performed, not the appellation that is determinative. Following that logic, we conclude that Article V, Section 17(a) applies to senior judges. Further, had the proscription against incompatible service not applied to senior judges, that exemption would have been provided in Section 17(b), as it was for magistrate judges. Because senior judges perform “judicial duties,” they are subject to Article V, Section 17(a).
Slip op. at 24. The court rejected the argument that the verbal authorization given to Senior Judge Braxton by an AOPC employee permitted the dual appointment, concluding that:
We reject the School District’s argument for several reasons. First, the question was whether the Supreme Court, or one of its justices, had directed Senior Judge Braxton to serve as a senior judge notwithstanding the inception of his service on the Philadelphia Tax Board. Second, the School District did not establish that Mittleman, an employee of the AOPC, had authority to approve service on the Philadelphia Tax Board by a senior judge. Without that foundation, Mittleman’s so-called verbal acts are irrelevant. In any case, the AOPC cannot waive the Pennsylvania Constitution.
Slip op. at 25-26.
The Pennsylvania Supreme Court granted allocatur, limited to the following issue:
Whether the Commonwealth Court erred by finding that a judicial officer has violated Pa. Const., art. V, § 17, concluding that such violation resulted in the automatic forfeiture of judicial office, and determining that such violation constitutes a structural error which renders the trial court’s orders void ab initio?
For more information, contact Kevin McKeon or Dennis Whitaker.