On Wednesday, April 20, 2023, the Judicial Conduct Board filed its reply and memorandum of law before the Commonwealth of Pennsylvania Court of Judicial Discipline in regard to the new matter raised by the Court of Common Pleas First Judicial District Philadelphia County Judge Mark B. Cohen.

The case is entitled “In the Matter of Mark B. Cohen,” with case no. 1 JD 2023.

The charges cited Canon 1, Rule 1.1, 1.2, 1.3, Canon 3, Rule 3.1, 3.7(a), Canon 4, and Rule 4.1(A)(3), 4.1(A)(11) of the Code of Judicial Conduct and Article V, 17(b) of the Constitution of the Commonwealth of Pennsylvania which state:

A judge shall comply with the law, including the Code of Judicial Conduct.

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

A judge shall not abuse the prestige of the judicial office to advance the personal or economic interests of the judge or others or allow others to do so.

Judges shall regulate their extrajudicial activities to minimize the risk of conflict with their judicial duties and to comply with all provisions of this Canon. However, a judge shall not..(C) participate in activities that would reasonably appear to undermine the judge’s independence, integrity, or impartiality.

Avocational activities. Judges may write, lecture, teach, and speak on non-legal subjects and engage in the arts, sports, and other social and recreational activities if such avocational activities do not detract from the dignity of their office or interfere with the performance of their judicial duties.

Except as permitted by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not publicly endorse or publicly oppose a candidate for any public office.

Except as permitted by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not engage in any political activity on behalf of a political organization or candidate for public office except on behalf of measures to improve the law, the legal the system, or the administration of justice.

Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court.

On February 23, 2023, the respondent was charged before the Commonwealth of Pennsylvania Court of Judicial Discipline for the improper posts he made to his personal Facebook page. Specifically, Judge Cohen’s Facebook posting consisted of the following: (1) his sympathetic, supportive, or positive views of political figures, living and dead, of the Democratic Party and, generally, of the political “left”; (2) his support for legislation instituted and embraced by the Democratic Party and, generally, the political “left”; (3) his support for policy initiatives or issues embraced by the Democratic Party and, generally, the political “left”; (4) his criticism of political figures of the Republican Party and the political “right”; and (5) his criticism of policy initiatives and legislation instituted and embraced by the Republican Party or the political “right”.

In his response, the respondent denied that there were improper postings. He argued that all the posts he made were within the First Amendment of the U.S. Constitution.

The Answer states:

“All postings were within the First Amendment of the United States Constitution and Article I, Section of the Pennsylvania Constitution, and are acceptable speech. All were accepted speech consistent with comment nine of Code of Judicial Conduct Rule 4 . 1. None of these postings involved any case pending before Judge Cohen. His posts involve serious discussions of international, national, and state issues.

Moreover, the respondent argued that no one told him that it was prohibited to make such postings.

The Answer continues:

“Judge Cohen raises the defense of laches, in that he has been posting since 2007 and no one initially told him it was wrong to continue or was prohibited until the current charges were made. Not one single litigant or attorney objected to a single post. He contends that this prosecution be dismissed on laches since it was untimely and brought years after he has already been posting and blogging without criticism or notice.”

In response, the Judicial Conduct Board of the Commonwealth of Pennsylvania filed a reply and memorandum of law to the new matter of the respondent requesting the court to dismiss the same.

The Memorandum of Law states:

“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 men’s rea presumption requires knowledge only of the facts that make the defendant’s conduct illegal; knowledge Of illegality is required only where a statute imposes that requirement). Further, this argument, for the reasons stated above in 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.”

The Memorandum of Law continues:

“Moreover, and more importantly, his claim that the “Code of Judicial Conduct does not address blogging or social media speech” and thus, “fails 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 a similar fair warning with respect to other conduct which might be within its broad and literal ambit.”

Taking into account the aforementioned justifications, the Judicial Conduct Board has formally requested the court to dismiss the new matter concerning the respondent. The board has presented compelling reasons and arguments to support their stance that the case against Judge Cohen lacks merit or should not proceed for various grounds. By making this request, the board seeks to prevent the case from advancing further and advocates for the rejection of the respondent’s new matter of any relief that the same may request.

The request states:

“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.”

Judge Cohen’s courtroom is located at 400 John F Kennedy Blvd, Philadelphia, PA 19107, and can be reached at +1 215-686-7000. His info can be found on ballotpedia.org.

A copy of the original filing can be found here.