Judge's 'exceptional' defiance following discipline decision is unmatched, suspension decision says
Judge Mark B. Cohen of the Philadelphia Court of Common Pleas is a former Democratic member of the Pennsylvania House of Representatives. He was in office from 1974 to 2016. (Photo from the Pennsylvania House of Representatives’ archives)
A state court judge in Philadelphia has been suspended without pay for posting political content on Facebook, even after a disciplinary decision finding that the conduct violated ethics rules.
The misbehavior by Judge Mark B. Cohen of the Philadelphia Court of Common Pleas “is exceptional,” the Pennsylvania Court of Judicial Discipline said in its Oct. 7 decision on discipline. “No other case in the history of the Court of Judicial Discipline has involved such defiance post-decision.”
Law360 and Law.com are among the publications with coverage of the suspension, which continues until Cohen’s term expires Dec. 31.
Cohen is a former Democratic member of the Pennsylvania House of Representatives. He had argued that he had a First Amendment right to post the material concerning policy issues on his public Facebook page, which identifies him as a judge in the “life events” section, according to the May 3 opinion finding misconduct. He said the posts did not concern matters that would come before him.
Cohen’s posts spoke approvingly of policy positions supported by the Democratic Party, according to the opinion of a political science professor who testified for the Judicial Conduct Board of Pennsylvania.
In one post, he stated that he was proud that he received an “F” rating by the National Rifle Association while he was a state legislator. He also opined that President Joe Biden was “an excellent president;” wrote positively about other Democratic politicians; called for more domestic spending and less military spending; wrote about “the madness of book banning;” noted that voters supported abortion rights in a Kansas ballot question; and supported a higher minimum wage, unions and student debt relief.
“Sitting judges are not allowed to broadcast their political leanings,” the judicial conduct board said in its October decision. “People appearing before judges deserve fair, unprejudiced jurists to weigh their cases. Judge Cohen’s misconduct is especially harmful because of his defiance as adduced at his sanctions hearing.”
Despite the suspension, Cohen was not barred from seeking judicial office after his term ends. But he can’t run for a judgeship because he has reached the mandatory retirement age of 75, Law.com reports. There is a possibility, however, that he could serve as a senior judge.
Samuel C. Stretton, Cohen’s lawyer, told Law360 and Law.com that his client will appeal.
“The real issue is the preclusion of judges from being able to post on the internet on issues that don’t come before them,” Stretton told Law360. “The Pennsylvania Supreme Court should make the final decision, so we’re going to give them the chance.”
The judicial conduct board ruled less than two weeks after a hearing on sanctions, Law.com reports.
“It’s notable that the court made such a rapid decision on the sanction,” Melissa Norton, the judicial conduct board’s chief counsel, told Law.com.
