Pennsylvania Constitution: Commentary and Comments* - 2010-2013
November 2013: Retention Elections
Congratulations to both Chief Justice Castille and Justice Baer on their retention by the voters this past Tuesday. Now, after a campaign containing many references to past scandals on the Pennsylvania Supreme Court, they would contribute to the enhancing of that Court's reputation if they would lead an effort to amend the Code of Judicial Ethics so as to prohibit the receipt of any gift--beyond some de minimis amount ($50?)--by any judge in Pennsylvania, including Justices of the Supreme Court.
July 2013: Judicial Conduct Board Authority
The Legal Intelligencer reported on Friday, 7/12/2013, that the Pennsylvania Supreme court has granted review in two cases involving traffic court magistrates in Philadelphia. In one case, the court will entertain the issue of its authority to investigate judicial officers versus that of the Judicial Conduct Board. In the other case, the court will decide whether it has the power to issue interim suspensions of judicial officers or whether that only can be done by the Court of Judicial Discipline.
These cases will be argued and decided months from now. Nevertheless, it should be remembered that the Pennsylvania Supreme Court has never been a body to relinquish any of its presumed prerequisites. Offhand, one would expect the justices to decide that they retain the powers to investigate and to suspend.
Any such rulings, however, would be a mistake. In other realms involving the separation of powers, the Pennsylvania Supreme Court usually insists that constitutional authority cannot be shared. This is the reason, for example, that the legislature lacks all authority to regulate lawyers. The court should rule in the same way in the area of judicial discipline, that the constitutional amendment that created the Judicial Conduct Board as an investigating and prosecuting agency and created the Court of Judicial Discipline as an adjudicatory body was creating a self-contained and self-sufficient system. The powers created should be viewed as solely belonging to these bodies and not to the Supreme Court. See Article V, Section 18.
This conclusion, however, rests on more than just general reasoning. There is one clear example of an authority that cannot possibly be shared. Section 18 provides that the Court of Judicial Discipline "may" order the interim suspension of any judicial officer against whom has been filed an indictment or information charging a felony. Note carefully the word "may". The people of Pennsylvania decided that suspension should not be automatic when a felony charge is brought against a judge. I don't know what circumstances the people of Pennsylvania had in mind in which suspension would not be appropriate. Perhaps they were worried about political prosecutions of judges. But in any event, suspension is not automatic.
This means that the Court of Judicial Discipline has not only been given the power of interim suspension, a power that one can imagine sharing with the Pennsylvania Supreme Court, but has also been given the power to decide not to suspend. Now, how can the power not to suspend be shared? If the Court of Judicial Discipline decides not to suspend a particular judge, the Pennsylvania Supreme Court can either agree or not agree. If that court agrees, it must do nothing. If it disagrees, and goes ahead and suspends the judge that the Court of Judicial Discipline had seen fit to retain, it is not sharing a power it is trumping the power of the Court of Judicial Discipline that the people of Pennsylvania had granted specifically in a constitutional amendment. That would clearly be an abuse of power by the Pennsylvania Supreme Court.
Thus we see that at least in some instances the powers of discipline cannot be shared. And this should be the conclusion as well for all of the powers of judicial investigation and discipline.
July 2013: Same Sex Marriage in PA
In an article by Kate Giammarise in the Pittsburgh post-Gazette on Saturday, July 13, 2013, Attorney General Kathleen Kane responded to criticism of her decision to refer to the Office of General Counsel the defense of Pennsylvania's ban on same-sex marriage. The criticism had been that it is the Attorney General's responsibility to defend the constitutionality of Pennsylvania's statutes in court. Attorney General Kane insisted that her authority to refer litigation to the Office of General Counsel is absolute: "the Commonwealth Attorneys Act has a specific, plainly written provision that enables me to refer cases at my sole discretion."
This is a serious misstatement of what the Commonwealth Attorneys Act actually states. The act charges the Attorney General with the responsibility "to uphold and defend the constitutionality of all statutes... ." There are essentially two exceptions to this responsibility. First, contained within the grant of responsibility itself, is the exception that "a controlling decision by a court of competent jurisdiction" might already have rendered a Pennsylvania statute unenforceable. Whatever one thinks of same-sex marriage, no court of competent jurisdiction has yet held directly that Pennsylvania's ban is unconstitutional. It is Attorney General Kane's opinion that the ban is unconstitutional, but under the Commonwealth Attorneys Act her opinion is irrelevant.
The second exception, and the one that Attorney General Kane is presumably relying upon, has nothing to do particularly with constitutional challenges. In all civil litigation, the "Attorney General may, upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, authorized the General Counsel... to initiate, conduct or defend any particular litigation... ."
While the standard for such a referral is very broad, it is not absolute. It is not a matter of sole discretion, as claimed by Attorney General Kane. The standard is efficiency, which is plainly not present here, or the best interest of the Commonwealth. It is by no means obvious that handing this case off to the Governor's Office of General Counsel is in the best interest of the Commonwealth. It is true that Attorney General Kane disagrees with the ban on same-sex marriage, finds it discriminatory and unconstitutional, but all lawyers make arguments with which they personally disagree when it is in the interests of their client. Since it is by no means clear that the United States Supreme Court will find the ban on same-sex marriage unconstitutional - - betting on that matter would be about 50-50 - - there are certainly arguments to be made in support of Pennsylvania's current statutory policy. There is nothing in the Commonwealth Attorneys Act that allows Attorney General Kane simply to refrain from making arguments with which she disagrees.
June 2013: Judicial Retirement pt. 2
Those of us hoping for a clear holding by the Pennsylvania Supreme Court in the mandatory judicial retirement cases--see caselaw--that a constitutional amendment can never be held by a court to be unconstitutional as a violation of Art. I, Section 1 (Inherent Rights of Mankind) were not totally satisfied by Justice Saylor's opinion for a unanimous court dismissing the challenge to the mandatory retirement age of judges. Justice Saylor went back and forth and ultimately held that even if core constitutional commitments could render an amendment unconstitutional, the claimed right here was not such a core right. Still, by noting in a footnote that no court has ever held an amendment to its state constitution to be substantively unconstitutional and by noting that the matter is probably only theoretical because of the protections of the federal constitution, and by referring to the natural right of the people to amend their form of government, Justice Saylor probably was signalling that no such claim will ever actually succeed.
May 2013: Judicial Retirement
It now seems increasingly likely that the Pennsylvania Supreme Court has taken control of the three state-court cases challenging mandatory judicial retirement in order to dismiss them. Justice J. Michael Eakin suggested during oral argument two weeks ago on two of the cases that the High Court should take the third case and dismiss them all on the authority of Gondelman v. Commonwealth, a precedent rejecting a prior constitutional challenge to mandatory judicial retirement. Now, seemingly, the Court is following Justice Eakin's suggestion.
A simple dismissal based on precedent would avoid the deeply significant jurisprudential issue of just how one part of the Pennsylvania Constitution could possibly render another part of the same Constitution unconstitutional. This kind of question has come up before. For example, the Civil War Amendments, 13, 14 and 15, in the federal Constitution are held to modify, because later in time the State immunity prescribed in the 11th Amendment. This approach is not available in the judicial retirement cases because the provision requiring judicial retirement arose quite late as a result of the 1968 Constitutional Convention and was amended by the people even later than that, in 2001.
In the most fundamental sense, the question could be put in natural law terms. As argued by attorney Robert Heim in oral arguments before the Pennsylvania Supreme Court, there are pre-existing rights inherent in and independent of the text of the Constitution, which the Court is authorized to enforce. This natural law claim has a very well-established historical pedigree. It was the subject of a famous constitutional exchange in Calder v. Bull in 1798 between the United States Supreme Court Justices Samuel Chase and James Iredell. The same kind of argument was urged on abolitionist judges during the period before the Civil War on behalf of fugitive slaves. Nevertheless, in this more jurisprudentially positivist age, it is almost inconceivable that the Pennsylvania Supreme Court would rule that it has the authority to overturn a constitutional amendment adopted by the people on substantive state constitutional grounds (as opposed to technical violations of the amendment process). And it is especially inconceivable that the Court would do this in a case in which the self-interest of judges is at stake.
March 2013: Will Justice Orie Melvin Lose Her Pension?
**Now that Justice Orie Melvin has resigned her office, an argument can be made that she will not ever be suspended or removed from office under either Art. V or Art. VI and thus that the provisions discussed below no longer apply. Of course such an argument would presume that Justice Orie Melvin's earlier interim suspension does not count under these provisions. It should be noted, however, that even if these special judicial forfeiture provisions do not apply to Justice Orie Melvin, she is still subject, as a public employee, to the general provisions of the Public Employee Pension Forfeiture Act, which provides for forfeiture of pension benefits upon conviction of a felony theft.**
On June 13, 1994, Supreme Court Justice Rolf Larsen was sentenced on two counts of criminal conspiracy. At the same sentencing hearing, the trial judge found that the convictions constituted "infamous crime[s]" pursuant to Article II, Section 7 of the Pennsylvania Constitution and removed justice Larsen from judicial office pursuant to that constitutional provision. See In Re Appeal of Rolf Larsen (Special Tribunal 10/24/2002). While this judgment of sentence was later overturned on technical grounds of conspiracy sentencing law, the convictions were affirmed and Justice Larsen was ordered removed from office again in 1997.
Since Justice Joan Orie Melvin was convicted of three felonies constituting infamous crimes, it has been widely assumed that she would also be removed from office pursuant to Article II, Section 7. It has also been assumed that Justice Orie Melvin would forfeit her judicial pension. In fact, however, the State Employees' Retirement System ultimately determined that Justice Larsen's pension was not subject to forfeiture, see Larsen v. State Employees Retirement System, 22 A.3d 316, 321 (Pa. Cmwlth. 2011), so this assumption may not be warranted.
Pension forfeiture pursuant to removal from judicial office is provided for in the Pennsylvania Constitution and pursuant to statute. Article V, Section 16(b) of the State Constitution provides that "no salary, retirement benefit or other compensation, present or deferred, shall be paid to any justice...who under section 18 or under Article VI, is...removed...from holding judicial office for conviction of a felony... ." This provision seems to provide for pension forfeiture upon an order of removal by a sentencing judge pursuant to Article VI, Section 7, which provides for removal of civil officers, which include judges, from their office on conviction of any infamous crime. This constitutional forfeiture provision makes no reference to Article II, Section 7.
Similarly, the pension forfeiture statute, 42 Pa.C.S. Section 3352, provides that "[n]o salary, retirement benefit or other compensation shall be paid to any judge...who is suspended or removed from office under section 18 of Article V or under Article VI of the Constitution of Pennsylvania." Again no reference is made to removal under Article II, Section 7.
While it is unclear why Justice Larsen's pension was not forfeited pursuant to his criminal convictions and removal, it is possible that the particular provision under which a judge is removed from judicial office affects the availability of pension benefits. If that is so, the decision of the sentencing judge in Justice Orie Melvin's case to remove pursuant to Article II versus Article VI could determine whether Justice Orie Melvin receives her pension. Of course, whatever the decision of the sentencing judge, a later removal order by the Court of Judicial Discipline could also form the basis of pension forfeiture.
February 2013: Suspended Supreme Court Justice Joan Orie Melvin was convicted on February 21, 2013 of several counts including theft of services, conspiracy, and misapplication of government funds. Whenever a judge or a justice is convicted for theft or a felony, removal of that judge or justice from the bench is automatic by precedent. There is no requirement for her to resign, because Judge Lester G. Nauhaus can/has removed her from the bench. This also means that there will not be much more action taken by the Court of Judicial Discipline, and if there is, that action is not necessary to the disposition of her seat on the Pennsylvania Supreme Court.
November 2012: I have been talking in my Pennsylvania State Constitutional Law class about the reality of a fractured Executive Branch under the Pennsylvania Constitution. But this week I realized just how fractured the Executive Branch is. In this past election, three Democrats were elected top Executive Branch officials: Kathleen Kane as Attorney General, Eugene DePasquale as Auditor General and Robert McCord, reelected as State Treasurer. In contrast, at the federal level, these functions are performed either by persons under the direct or indirect control of the President or by legislative branch officers, if not Congress itself. We will have to see what effect such divided government is going to have on Pennsylvania political life. Can three Democrats coexist with a Republican governor?
May 2012: The 4-3 decision by the Pennsylvania Supreme Court on April 26, 2012, in Mesivtah Eitz Chaim (see Caselaw) to the effect that satisfying Act 55 does not automatically satisfy the constitutional criteria set forth in Hospital Utilization Project v Commonwealth (1985) -- the HUP test -- may have important consequences for the tax exempt status of major Pennsylvania nonprofit institutions. The statutory criteria are easily met. As was the case in Mesivtah Eitz Chaim itself, however, the constitutional criteria are a matter of judicial interpretation that may or may not be satisfied in a particular case. Many millions of dollars in potential tax revenue are now open for local government challenge and an uncertain future.
April 2012: A story by Ben Present appeared today, 4/2/2012, in the Pittsburgh Post-Gazette, reprinted from The Legal Intelligencer, describing how the conviction of Senator Jane Orie might affect a possible prosecution of Pennsylvania Supreme Court Justice Joan Orie Melvin. The story referred to the case of Commonwealth v. Antoszyk, which was decided on February 21, 2012, to illustrate the effect of Justice Orie Melvin self-imposed recusal on the Pennsylvania Supreme Court. In Antoszyk, an evenly divided court affirmed the decision of the Superior Court that, in the words of the opinion in favor of reversal by Justice Eakin, "a search warrant is invalid if the affidavit of probable cause included a confidential informant's deliberate misstatement." The three Justices who would reverse, Chief Justice Castille and Justice McCaffery joining Justice Eakin, would not allow a subsequent recantation by an informant to invalidate a warrant. Since Justices Saylor, Baer and Todd voted to affirm, the effect of the equally divided court is to affirm the result below. Whatever one thinks of the warrant rule discussed in Antoszyk, it is obvious that the Supreme Court is hamstrung by the recusals of Justice Orie Melvin in Allegheny County criminal cases. This situation of a part-time Justice should not be allowed to go on. Either Justice Orie Melvin should announce that she has done nothing wrong and will decide all cases unless she is indicted, or she should resign so that a replacement can be appointed who will allow the Court's process to go forward.
February 2012: An article by Laura Olsen in the Post-Gazette on Saturday, 2/25/2012, reported that a challenge would be heard this week to the nominating petitions of State Representative Bill DeWeese, who was convicted earlier this month on five felony counts for improper use of staff resources. At issue is whether a person is considered "convicted" of a crime at the time of the verdict or at the time of sentencing, which will not occur in this case until April 24, the primary election date. The State Constitution, Article II, Section 7, provides that "No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth." Generally it has been assumed that "convicted" is not final until sentencing. In theory, Mr. DeWeese's name could be removed from the general election ballot even if he stays on the primary ballot (he has no opposition in the primary). If that were to occur, a substitute Democratic candidate would be added to the General Election ballot. The article quoted Mr. DeWeese as hoping that his conviction could be reversed in time to take his seat in January if he were elected in November. It is difficult to see how this timing could work even if his name remains on the ballot.
January 2012: Chief Justice Ronald Castille was quoted in the Pittsburgh Post-Gazette on Wednesday, January 11, 2012, as claiming a power for a majority of the Pennsylvania Supreme Court to suspend any Justice even without the filing of criminal charges. (See News). The most recent opinion discussing a case in which the Court issued an interim suspension is In Re Merlo, 17 A.3d 869 (2011), in which the Per Curiam opinion cites the Court’s King’s Bench authority and Art. V, section 10(a)'s “general supervisory and administrative authority over all courts” as authority for its action. The problem with the Court’s position is that the Justices are claiming powers that entirely overlap those of the Court of Judicial Discipline (CJD). Merlo is a perfect example of the overlap. In that case, the Judicial Conduct Board filed charges against the Petitioner with the CJD. At that point, the Constitution gives very specific authority to the CJD to issue the same type of interim suspension that the Supreme Court issued. See Art. V, section 18(d)(2). The failure of the CJD to issue such an order, which is discretionary, can only be taken as a judgment that suspension was not warranted. The Court’s disagreement is evidence that the suspension power cannot be shared because discretion to remove must include discretion not to remove. In Justice Melvin’s situation the conflict is even plainer. Since no formal charge has been filed by the Judicial Conduct Board with the CJD, the constitutional amendment gave the CJD discretion to suspend only after a felony is charged by indictment or information. That is a carefully cabined power. Why would the voters have parceled out such limited discretion if the Supreme Court retained power to remove any Judge a majority sees fit to suspend? Aside from that, there is no guarantee of due process in the Chief Justice’s comment. By his reasoning, a four-Justice majority would have authority to suspend the other three Justices for an intemperate dissent. Such unlimited power cannot have been the intention of the people of Pennsylvania.
In Commonwealth v. Brown, __ A.3d __, 2011 WL 839412 (Pa.Super 3/11/2011), a panel of the Superior Court, per Allen, J., with Colville, J., dissenting, held that a trial judge violated the fifth amendment right of a juvenile against self-incrimination in a decertification hearing by finding that the juvenile had to admit guilt or accept responsibility for his actions in order to prove he was amenable to treatment in the juvenile system. Although the court noted that Art. I, section 9 of the Pennsylvania Constitution provides a similar protection against self-incrimination and although the appeal expressly raised this State constitutional issue, the court failed to decide the Section 9 issue.
This exclusive reliance on federal constitutional law needlessly exposes the Pennsylvania judicial system to appellate review by the United States Supreme Court of a decision that presented potentially adequate and independent State grounds for decision.
Although this is always the case, I would like to emphasize that the following commentary represents the view of Bruce Ledewitz and in no way represents the views of Duquesne University or the Duquesne University School of Law.
Given the events that have led to a mistrial in the political corruption cases against state Senator Jane Orie and her sister Janine Orie, the time has come for Pennsylvania Supreme Court Justice Joan Orie Melvin to resign from the Pennsylvania Supreme Court. There had already been a cloud over Justice Orie Melvin because much of the political work that formed the basis of the prosecution’s case against the defendants consisted of campaign activity on behalf of Justice Orie Melvin’s Supreme Court election campaign. Up until now, however, the presumption of innocence might have justified waiting to see whether either defendant were convicted before calling for Justice Orie Melvin’s resignation. But now that the first trial has ended in a mistrial because of a finding by the trial judge that defense documents submitted in evidence were forged, the appearance of impropriety is overwhelming and at this point taints the Pennsylvania Supreme Court itself. From the beginning, Justice Orie Melvin ran for the Court on a platform of curbing abuses of power by the judiciary. When she took the oath of office on January 8, 2010, Justice Orie Melvin proclaimed in the presence of the rest of the Justices that the time had come to end “backroom deals, pay raises, public corruption and scandals in the judiciary.” It is now time for Justice Orie Melvin to heed her own words and resign from the Pennsylvania Supreme Court.
Ever since the suspension of Justice Rolf Larsen by the Pennsylvania Supreme Court in October 1993, a few months after the adoption of the judicial discipline amendment to Art. V, section 18, an argument has raged over the authority of the Court to issue such suspensions. This issue has recently resurfaced [see News, 1/18]. Since the Court of Judicial Discipline has the authority to issue just such suspensions ("Prior to a hearing, the court may issue an interim order directing the suspension, with or without pay, of any Justice, Judge or Justice of the peace against whom formal charges have been filed with the court by the [Judicial Conduct Board] or against whom has been filed an indictment or information charging a felony."), the argument has been made that this authority is exclusive. On the other hand, defenders of the Supreme Court's suspension power have argued that the discipline amendment did not remove the Court's "general supervisory and administrative authority over all the courts" in Art. V, section 10(a).
The question is whether the power to suspend clearly held by the Court of Judicial Discipline includes the authority to decide that a suspension is not warranted; if so, the power cannot be shared.
In the O'Reilly takings case, see caselaw at Art. I, section 10, the Pennsylvania Supreme Court did not distinguish between the public purpose requirement of takings under the federal fifth amendment and Art. I, section 10. Nevertheless, by adverting to the controversy over Kelo v. New London, Conn. (US 2005) and reaffirming that "This Court" has required that the public must be the primary and paramount beneficiary of the taking, the Court seems at least open to the possibility that the public use requirement is more strictly applied in Pennsylvania than federally.
West Mifflin Area School District v. Zahorchak (Pa. 9/29/2010), see caselaw at Art. III section 32, like Pa. Tpk. Comm'n v. Commonwealth (Pa.2006) before it, applies a per se rule of unconstitutionality for any legislation that creates a class of one that is closed or substantially closed to future membership. This approach creates a kind of straightjacket for the legislature as was clear in the West Mifflin case.
There the Supreme Court admitted that the legislature had legislated with regard to particular issues that arose in the Duquesne City School District and nowhere else. Thus, there was nothing illegitimate about narrow legislation. Nevertheless, the Court was unanimous in West Mifflin so for the moment there is no other interpretation of the prohibition on special legislation other than the Court's formal one.
The extraordinary report by the Statewide Investigating Grand Jury that was released on Monday, May 24, will obviously have significant repercussions, not least of which in the 2010 race for Pennsylvania Governor. Although the Grand Jury's call for a limited constitutional convention will undoubtedly add support and momentum to those already attempting to call such a convention, the changes actually proposed by the Grand Jury, such as the elimination of the taxpayer-funded political caucuses, do not require changes in the Constitution. They could be implemented tomorrow. The call for a convention was a recognition that this is unlikely to happen. But, perhaps the legislature will act.
Bill Toland of the Post-Gazette reported on 2/2/2010 ("Disorder in the court: chief justice slams Justice Orie Melvin") concerning the unusually pointed challenge by Chief Justice Ronald Castille in the majority opinion to the concurring and dissenting opinion by Justice Joan Orie Melvin in In Re Interbranch Commision on Juvenile Justice, __ A.2d __, 2010 WL 324773 (Pa. 1/29/2010). See caselaw. The story only hinted at the likely impetus for such a personal attack. In a case touching on the judicial scandal in Luzerne County, Justice Orie Melvin claimed that keeping information under seal, which the Supreme Court ultimately decided was required by Art. V, Section 18 of the Pennsylvania Constitution "risks the appearance of an attempt to shield members of the judiciary, and those charged with judicial oversight, from public scrutiny." This allegation obviously stung Chief Justice Castille, who not only quoted Orie Melvin's language in the majority opinion, but stated that the result reached by the Court "involves no 'cover-up'". The dispute in the opinions echoes the blunt challenge issued by Justice Orie Melvin in remarks at her swearing in ceremony, which could have been read as a criticism of Chief Justice Castille's oversight as Chief Justice. (See Brad Bumsted, "Melvin lets loose with call for judicial reform", Tribune-Review, 1/9/2010).
*Unless otherwise noted, all interpretations are written by Bruce Ledewitz, Professor of Law at Duquesne University School of Law and reflect his views.