On Thursday, March 16, 2023, the Judicial Conduct Board of the Commonwealth of Pennsylvania requested the Commonwealth of Pennsylvania Court of Judicial Discipline to deny the omnibus motion of judge Mark B Cohen, a judge in the Court of Common Pleas of the First Judicial District of Philadelphia County.

The case is entitled  “In the Matter of  Judge 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 based on a report stating that the respondent authored and made improper posts to his personal Facebook page. In summary, 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 response to the allegations, Judge Cohen filed an omnibus motion on November 9, 2023, requesting the dismissal of the charges. According to the respondent, the allegations of posting do not constitute misconduct but are protected speech covered by the first and fourteenth amendments of the United States Constitution and Article I Section 7 of Pennsylvania.

The filing states:

“Judge Cohen’s blogs and posts do not support any particular party or political viewpoint. They discuss legislation, political and governmental leaders, both Republican and Democrat, and at times Independents.”

The filing continues:

“Further, reviewing Judge Cohen’s comments, they are not political in nature. They are issue-oriented comments on matters of national and state concern. There is nothing in his posts that are on subjects that will appear before him in Philadelphia Family Court. He has not endorsed any candidates. He has not promoted any candidates. He has not solicited contributions. There is no ethnic or racial type of comments or jokes. There is no profanity. His comments are serious discussions about state and national issues.”

On March 15, 2023, the Judicial Conduct Board filed a response to the omnibus motion filed by the respondent. The board requested the court to deny the motion. Moreover, on the following day, the board also requested the court to deny the respondent’s motion for discovery.

The filing further states:

“To any reasonable observer, Judge Cohen’s postings either directly state or strongly imply his personal views (and expressions of support or opposition to) regarding a wide range of controversial national and state policy matters, as well as directly state or strongly imply his views towards certain political figures elected through partisan elections in the executive and legislative branches of government at the national and state level. Generally speaking, Judge Cohen’s personal views on these subjects and persons align with those of the Democratic Party or the broader notion of the political “left,” and he made no attempt to obfuscate the fact that he is a judge on his Facebook page.”

The filing additionally notes:

“Without a doubt, the postings made by Judge Cohen regarding the aforementioned persons or subjects call into question both his independence and impartiality and undermine the dignity of his office. One of the most important elements of proper judicial conduct is to remain free of partisan political influence and to remain above the rough-and-tumble fray of partisan politics that are part and parcel of the legislative and executive branches of government.”

In lieu of all these arguments, the Judicial Conduct Board of the Commonwealth of Pennsylvania requested that the respondent’s omnibus motion be denied.

Judge Cohen is a judge in the Court of Common Pleas of the First Judicial District of Philadelphia County 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.