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Pennsylvania Constitution: Commentary and Comments - 2006


The decision of the Federal District Court in Small v. City of  Philadelphia (see caselaw) to dismiss a cause of action for damages for violations of the Pennsylvania Constitution demonstrates that the Pennsylvania Supreme Court must clarify the remedial issues surrounding alleged constitutional violations.  The Federal Court dismissed on the authority of Jones v. Commonwealth, 890 A.2d 1188 (Pa.Commw.Ct. 2006).  It is not appropriate for such an issue to be resolved by an intermediate court.  This is especially so now that it appears the federal courts may treat the Jones case as definitive.  The Pennsylvania Supreme Court should have accepted review in Jones rather than denying the petition for allowance of appeal, without opinion.  See Jones v. City of Philadelphia, 909 A.2d 1291 (Pa. 2006) (TABLE, NO. 95 EAL 2006).


In Downingtown Area School District v. Chister County Board of Assessment Appeals (see caselaw, Art. VIII, Section 1), the majority attempted to clarify the relationship between tax uniformity under the State Constitution and federal equal protection under the Fourteenth Amendment.  Unfortunately, the Court is still misinterpreting equal protection as far more restrictive of State discretion than in fact it is.  The majority did acknowledge in footnote 9 that, despite language in prior State opinions that uniformity and equal protection are coterminous, the United States Constitution does not require the level of equalization that uniformity does.  Nevertheless, the majority mistakenly described Allegheny Pittsburgh Coal Co. v. County Com'n (1989) as proscribing systematic discrimination in taxation.  In fact, the Allegheny case simply held that if a State has a uniformity provision and makes no effort to equalize tax burdens, such a failure violates equal protection.  Three years later, in Nordingler v Hahn (1992), the United States Supreme Court upheld under equal protection a California tax system that assessed some properties at their sale price, which yielded "dramatic disparities in taxation of properties of comparable value" because there was a "plausible policy reason for the classification".  The Court in Nordingler even called the Allegheny case a "rare case".  It is fair to say the federal equal protection has nothing whatever to do with uniformity analysis and that every option proposed in the Downingtown case would have satisfied the federal standard.


The composition of the 4-2 decision in In the Matter of Condemnation by Urban Redevelopment Authority of Pittsburgh, 2006 WL 3800448, __ A.2d __ (Pa. 12/27/2006), see Caselaw, Art. I, Section 7, is significant because Justice Saylor joined in dissent with Justice Castille in seeking to apply a very stringent level of protection of expression under the Pennsylvania Constitution.  Since the 2007 election cycle will add two new Justices to the Court, the votes of those two Justices will probably determine the future level of protection of expression under Article I, Section 7.


There has been a great deal of attention to the "signing statements" issued by President Bush indicating disapproval of aspects of federal statutes that he nevertheless is signing.  Pennsylvania does not have an established practice of such signing statements, but Governor Rendell issued the following signing message on November 22, 2006, in reference to his approval of SB 1166, which provided for the capital budget for fiscal year 2006-2007:

TO THE HONORABLE, THE SENATE OF PENNSYLVANIA I have this day approved and signed Senate Bill 1166. However, the Bill as sent to me includes a number of substantive items containing language which I believe conflicts with provisions of the Pennsylvania Constitution and Pennsylvania law and places undue and unlawful restrictions upon the authority of the Governor. I believe that this language is thus null and void without further action. Section 13 is an example of one of these provisions. Although some of the suggestions offered in the Bill may be acceptable as a matter of policy and may, in fact, be implemented, their inclusion in the Bill has no legal effect. I do not intend, however, to implement the provisions of Section 13.


It is amazing that in 2006, the Pennsylvania Supreme Court has still not resolved, or even really addressed, the issue of the availability of monetary damages for violations of the Pennsylvania Constitution.  Chief District Judge Kane of the Middle District of Pennsylvania accepted supplemental jurisdiction of such a claim in MFS, Inc. v. Township of South Annville (see caselaw) on November 9, 2006, but noted that the matter still remains unresolved and, perhaps pointedly, noted in a footnote that the State Supreme Court, without opinion, had recently  denied a petition for allowance of appeal in Jones v. Philadelphia, in which the lower court and the Commonwealth Court had considered the damage issue extensively.  Of course, the damage issue is not simple, since it requires considerations of state action, immunity, substantive constitutional theory and matters of policy.  Nevertheless, the damage issue is central to the rule of law, however the issue is ultimately resolved.  The unwillingness to address this issue underlines the fundamental failure of Pennsylvania constitutional jurisprudence to achieve a coherent body of law, a fault that lies particularly at the doorstep of the Pennsylvania Supreme Court.


The refusal of the Pennsylvania Supreme Court on November 8, 2006 to grant reargument in the pay raise case, Stilp v. Commonwealth (see News) means the end of that case.  What was left uncertain is the effect of the repeal of the pay raise statute on future judicial salary increases in Pennsylvania.  Reported statements by Justice Castille suggest that he believes the opinion reinstates all pay raise provisions for judges, including the tie between Pennsylvania judicial salaries and federal judicial salaries for future increases in salary.  This issue was raised again this week when it was reported that Pennsylvania judges would receive a State cost-of-living adjustment in January, 2007.  There was no mention in the reports as to the effect of the pay raise statute on State, as opposed to federal, cost-of-living changes.


According to one media question directed to this website, the Adminstrative Office of Pennsylvania Courts is relying on a pair of 1989 cases in refusing to authorize a lower salary payment to Judge Orie Melvin reflecting her request to refuse the judicial pay raise upheld in Stilp v. Commonwealth.  See News.  This reasoning does not seem to have yet been reported as the AOPC's rationale.  The cases, Goodheart v. Casey, 555 A.2d 1210 (1989) and Klein v. Commonwealth, 555 A.2d 1216 (1989) struck down the effort by the legislature in 1974 and 1983 to reduce benefits and increase contributions to judicial pensions for judges entering office after 1974, thus creating a two-tier judicial compensation system for the foreseeable future.  Neither case produced a majority opinion, being decided by a three-Justice plurality with 3 Justices concurring in the result.  Justice McDermott dissented in each case.  Reargument was granted in each case based on the conflict of interest of certain Justices and the cases were reaffirmed in Goodheart v. Casey, 565 A.2d 757 (1989).  Presumably, the AOPC regards the cases as establishing that two tier compensation structures for judges on the same court are unconstitutional.  The importance of the cases lies not so much in the effect on Judge Orie Melvin, for even if the legislature could not do this an individual judge might arguably be able to waive this right, but in their potential effect on any legislative effort to role back the judicial pay raise by resetting judicial salaries when terms of office end.  See e.g., Bruce Ledewitz, Judicial Salary Ruling Creates More Confusion The Patriot-News, October 1, 2006.  Such an effort would also create two-tiered judicial compensation for a time and the Court might strike down such a legislative initiative.  It is important to note that these cases would not, by any interpretation, prevent the legislature from repealing the formula linking Pennsylvania judicial salaries to future federal judicial pay raises.


As the fallout from the pay raise case--Stilp v. Commonwealth--continues to settle, the effect of the decision on future judicial pay raises has come into question.  As reported on the website (see News), the media reported that the decision reinstated both immediate judicial salaries and the method by which the pay raise statute computed judicial salaries, tying them to federal judicial salaries.  If so, this would mean that any future federal judicial salary increase would automatically raise Pennsylvania judicial salaries as well.  But Justice Castille's  opinion actually left that question open.  The problem is that the repeal of the pay raise for judges was unconstitutional because of the operation of Art. V, section 16(a), which prohibits "diminish[ing]" judicial "compensation".  Once the pay raise passed, the effect of the new formula was an immediate increase in judicial salaries, which could not then be reduced.  But a formula is not "compensation" but only a way to compute compensation.  Therefore, as long as the effect of any change in the formula is not to immediately reduce judicial salaries, the legislature would arguably be free to change the formula at any time.  The repeal bill did exactly that when it repealed the entire pay raise.  Therefore, the tie between Pennsylvania judicial salaries and federal judicial salaries may already have been repealed and yesterday's decision does not necessarily reinstate it for the future.


What is disappointing about the pay raise decision (Stip v. Commonwealth, see News) is not any particular portion of the decision, nor its reasoning per se, but the refusal of the Justices to understand the need to reassure the public that judges do not decide cases out of their own self-interest.  If the Justices had struck down the entire pay raise on the ground that the statute's nonseverability clause compelled that result, the people of Pennsylvania, seeing public officials acting against their own financial interests, would have said, "at least we can trust the courts."  Now with a decision that upholds the pay raise for judges only, the cynicism of the public toward their government is greatly deepened.  That cynicism is corrosive of democracy.  Since Justice Castillo admitted in the opinion that there was "no controlling authority" on the nonseverability issue, someone should have reminded him of the appearance of impropriety that comes from breaking new ground when the Court's own financial interests are at stake.


The potential results of the pay raise cases argued in the Pennsylvania Supreme Court on 4/4/2006 can be divided into three basic possibilities: the original pay raise was unconstitutional; the pay raise was constitutional and the repeal was constitutional; the pay raise was constitutional and the repeal was unconstitutional.  In the first outcome, it is as if no pay raise ever happened.  Judges receive no pay raise and legislators do not receive an impact on their pensions from the short existence of the legislative pay raise.  In the second outcome, the repeal effectively ends the pay raise for all officials, including judges but limited effects, like pension increases and the legality of receiving the pay raise for a short time remain.  In the third outcome, judges would retain their pay raise into the future and would receive retroactively the additional salary they have lost since the repeal.  In this third possibility, if the repeal is found unconstitutional as to judges, the Justices could find the repeal non-severable, and reinstate the pay raise for all officials.  That seems unlikely to happen.  Even if the original pay raise is found unconstitutional, it is unlikely that legislators can be forced to repay any money received because of legislative immunity.


It has been widely reported in the media that the Alliance Defense Fund, an Arizona based Christian advocacy group, has filed suit in federal district court in Pittsburgh on behalf of protestors challenging the City's abortion clinic protest statute.  According to a spokesperson at Alliance Defense Fund, the suit raises not only first amendment issues, but also free speech under the Pennsylvania Constitution, Article I, section 7.  The State constitutional claim is significant because the statute was clearly tailored to survive a first amendment challenge, but there is no corresponding precedent in this field under Article I, section 7.  Of course, for just that reason a federal judge may decide not to hear the State constitutional issue pursuant to discretionary supplemental jurisdiction.


At the Judiciary Committee hearings that ultimately led to the confirmation of Judge Cynthia Baldwin to the Pennsylvania Supreme Court, State Senator Jeffrey Piccola raised an issue concerning Judge Baldwin's role as Chair of the Penn State Board of Trustees.  Piccola argued that this role, and the role of Chief Justice Ralph Cappy as Chair of the University of Pittburgh Board of Trustees, raise issues under Cannon 5 of the Code of Judicial Conduct.  Cannon 5B generally permits a Judge to serve as trustee of an educational organization, with the limitation that "Judges should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before them or will be regularly engaged in adversary proceedings in any court."   Because of the hierarchical nature of the Pennsylvania Judicial system, any case filed anywhere in that system is potentially before the State Supreme Court.  Therefore, the question for evaluating the compliance of Justice Baldwin and Chief Justice Cappy with Cannon 5 is whether litigation involving Penn State and the University of Pittsburgh "would regularly" be filed in the State courts.  This is not very different from the other portion of the standard, prohibiting trusteeship in an institution that regularly engages in lawsuits in any court.  Both these universities are extremely large institutions and no doubt are involved in lawsuits from time to time.  Is that sufficient to support Senator Piccola's objection?  Canon  5 contains a note that sheds light on this question.  The note requires judges to reexamine their relationships to organizations in light of changing circumstances and then illustrates the point: "For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past."  This example is significant because no charitable hospital in the United States is likely to be in court as often as either Penn State or the University of Pittsburgh, both of which have hospital components as well as other operational aspects that could generate litigation.  All of this suggests that Senator Piccola's objection was not frivolous and may come back to embarrass the court at some time in the future.


In several recent cases in the Eastern District of Pennsylvania, some of which are noted in the methodology section of caselaw herein, claims for damages for State constitutional violations have been dismissed in opinions noting that the Pennsylvania Supreme Court has not yet definitively determined the proper scope of such claims, if any, and their relation to governmental immunity at the State and local levels.  The trend now seems clear that the federal courts will not recognize such claims unless the Pennsylvania Supreme Court so states.  It is surprising that this issue has not been decided before now, but the Supreme Court seems obligated now to address it.  The court could begin with review in a case like Stackhouse v. Commonwealth, __ A.2d __, 2005 WL 3740572 (Pa. Cmwlth. 2/8/2006), in which the panel, per Judge Leadbetter, distinguished between claims for damages and for affirmative injunctive relief, which were held barred by sovereign immunity, 1 Pa.C.S. (§)2310, and claims seeking to restrain state officials from affirmative acts, which were not.  The court did not appear to distinguish actions to enforce State constitutional rights from any other kind of claim.


The public is largely unacquainted with the circumstances that led to the dismissal by Judge James R. Kelley of the Commonwealth Court of a lawsuit challenging the legislative pay raise and the possible connection of that dismissal to a pension increase granted to Judge Kelley by a strangely constituted en banc panel headed by President Judge James Gardner Colins, the same Judge Colins who appointed Judge Kelley to decide the pay raise case. Although the pay raise challenge has been, in effect, reinstated by the State Supreme Court, these disturbing circumstances bear noting.

On August 1, 2005, Gene Stilp filed a lawsuit in Commonwealth Court challenging the constitutionality of the pay raise statute that the legislature had passed on July 7, 2005. On October 7, 2005, President Judge Colins assigned the case to Senior Judge Kelley. Preliminary objections to the complaint were filed by the Commonwealth defendants, but before briefs were filed, the legislature, under public pressure, repealed the pay raise.

At the time of the repeal, there were numerous reports in the media that some number of judges intended to file lawsuits challenging the repeal as to judicial salaries on the ground that any reduction of a judicial salary violates Article V, section 16(a) of the Pennsylvania Constitution. That section provides in part that judicial "compensation shall not be diminished… ."

The repeal of the pay raise was signed by Governor Rendell on November 16, 2005. The next day, November 17, Judge Kelley, sua sponte, entered an order to the parties to brief the issue of the potential mootness of the case in light of the repeal. The order gave the parties 10 days-until November 28-to file briefs on the mootness issue. On November 30, 2005, in an unpublished opinion, Judge Kelley dismissed the lawsuit as moot. A little over a week later, on December 5 and 6, lawsuits were filed by judges challenging the repeal of the judicial pay raise as unconstitutional.

The significance of the timing of the judicial lawsuits lies in the validity or invalidity of the original pay raise. If the original pay raise statute was constitutional, the repeal was probably unconstitutional as to judges. But if the original pay raise was unconstitutional, as Stilp's lawsuit argued, then the repeal was irrelevant. In that case, the judges never received a valid salary increase and, so, withdrawing that increase is not unconstitutional. In other words, without the Stilp lawsuit, the judges might very well win their challenge and get their pay raise.

Because of the likelihood of the judicial challenge to the repeal, Stilp's case was not moot, at least not once judges actually filed suit. Judge Kelley had to have known that these judicial lawsuits were imminent. For him to pursue mootness so vigorously, therefore, looks like an effort to clear the way for an unimpeded judicial challenge to the repeal. This impression was strongly reinforced when judges quickly filed suit once the Stilp case was out of the way.

In the end, the State Supreme Court revived the Stilp lawsuit by granting special jurisdiction to hear it, along with one judicial challenge to the repeal. Those cases are still pending. Of course, Judge Kelley did not know when he dismissed the Stilp case that the State Supreme Court would take the case. (The State Supreme Court has reserved the issue of mootness.).

The focus now shifts to a petition for review filed by Judge Kelley in Commonwealth Court during the Spring of 2005. Judge Kelley argued in this lawsuit that a state statute limiting his, and other judges', pension benefits violated equal protection under both the federal and state constitutions. On January 24, 2006, the Commonwealth Court ruled in his favor, 3-2, in an opinion authored by Judge Friedman and joined by Judge McGinley and President Judge Colins, over the dissents of Judges Pellegrini and Leadbetter.

The decision for Judge Kelley was surprising both substantively and procedurally. Substantively, the majority held that the statutory limit on judicial pensions violated the "rational basis test", which is the lowest form of equal protection review. Under rational basis, the United States Supreme Court has allowed more or less arbitrary line drawing of pension benefits in a situation in which not everyone could receive higher benefits-see, for example, United State R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980). As Judge Pellegrini's dissent states, it is rational to exclude judges from increased pension benefits because they already receive benefits at a higher rate than the average state worker. (Legislators were also excluded from the higher pension benefits).

Procedurally, the closely divided court in the Kelley case was comprised of only five judges. The internal operating procedures of Commonwealth Court require either a panel of three or an en banc court of seven. The opinion includes a notation that "Judges Smith-Ribner, Simpson and Leavitt did not participate in the decision in the case" but does not say that they were part of the en banc court, which they could not have been, since that would have been eight judges. The internal rules also provide that "[t]he president judge shall structure the judicial membership of en banc courts…" so Judge Colins may have had discretion to seat judges in this case. On the other hand, panels of five judges in Commonwealth Court are sometimes used despite the rule when full panels are difficult or impossible to obtain. That may have been the case here. It may have been felt that no Senior Judge could decide a case about judicial pensions and several of the remaining judges may have been too personally close to Judge Kelley to participate. But, no explanation for the strange number of judges was given.

The outcome in the Kelley case is unfortunate in its potential effects on Pennsylvania pension benefits. The decision is also poorly reasoned. Certainly the decision should be appealed by the Retirement Board. Do the circumstances of the case, however, suggest anything beyond a singular, bad decision?

At the least, the dismissal of the pay raise challenge and its timing, together with the highly questionable grant of increased pension benefits to Judge Kelley, and the close involvement of President Judge Colins in each instance, creates a powerful appearance of impropriety. It is impossible to say, without outside investigation, whether the matter is even more serious than that.


The decision by the Judicial Conduct Board to dismiss the judicial conduct complaint against Chief Justice Ralph Cappy was not explained by the Board.  Presumably the Board felt that private meetings between Chief Justice Cappy and members of the Legislative and Executive Branches concerning pay raises for all three branches of government did not violate Canon 4B of the Code of Judicial Conduct.  The Code provision reads as follows:

He [a Judge] may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice.

Since the meetings in question were not "public", the first part of the provision does not apply.  The second part--"consult"--plainly permits private meetings, but "only on matters concerning the administration of justice".  Pay raises for judges probably fits that category--indeed may be precisely the subject the drafters wanted to allow private discussion about.  However, the link of a judicial pay increase to pay raises for the other two branches of government does not necessarily fit the category of "administration of justice."   That link is particularly problematic because legislative pay increases have in the past raised legal challenges and the Chief Justice's involvement might suggest judicial support for the bill that emerged.  It was that very problem that led Chief Justice Cappy to recuse himself from sitting in the pending case challenging the pay raise bill.


The December 22, 2005 order by the Pennsylvania Supreme Court granting extraordinary review in the case challenging the pay raise and combining the case with one of the judicial challenges to the repeal of the pay raise seems at first glance to decide only that the case will be heard. But the decision of the court may have already decided three important issues in the pay raise and repeal litigation. This is tea leaf reading to be sure, but the implications of these orders go beyond their facial meaning.

First, the AP reported that the pay raise challenge--Stilp v. Commonwealth of Pennsylvania--had been dismissed as moot by Commonwealth Court in view of the repeal of the pay raise statute. By granting review at all, the justices suggest that they have already decided that Stilp is not moot and that the constitutionality of the original pay raise will be reviewed on the merits despite the repeal. Second, the best argument for judges challenging the repeal had always been that the repeal should be considered independently of the original pay raise. In other words, that the Commonwealth should not be able to defend the repeal on the ground that the judges never had a valid pay raise in the first place. By this order, the justices suggest that the strategy of de-coupling the repeal from the pay raise will not work. In order to succeed in showing that the repeal was unconstitutional, the judges will have to convince the court that the original pay raise was constitutional. Third, by linking the Stilp case to the Herron case, and not to any other judicial challenge to the repeal, the justices may be suggesting that they have already decided that the repeal could be unconstitutional as to judges, but still valid as to the Executive and Legislative branches of government. One judicial lawsuit had argued that the repeal was unconstitutional as to everyone, and the justices have not taken steps to review that argument. So, it now appears that even if the judges win, the legislators will not have their pay raise restored.

Now, a final leap of speculation. No one can be sure how the justices will actually rule or when. [No one knows whether Judge Baldwin will get a crack at these cases, for example, or whether they will be decided before she joins the court in a mere 5 Justice decision]. Nevertheless, the December 22 order specifically includes the question whether the Consumer Party case of 1986, which is the case that first approved unvouchered expense accounts and secretive legislative maneuvers, should be overruled. Given that the court recently criticized the Consumer Party opinion in another case, and given the catastrophic consequences of the reliance of the legislature on the Consumer Party case in the pay raise statute, and given the weak legal reasoning of Consumer Party in the first place, it is inconceivable to me that the court will affirm Consumer Party. Therefore, it appears to me that the justices will find the original pay raise unconstitutional and then dismiss as moot any challenge to the repeal. The result would be no raises for anyone.


The Pittsburgh Post-Gazette reported on December 16, 2005 that Philadelphia State Senator Vincent Fumo is proposing several amendments to the Pennsylvania Constitution in order to prevent what he called "stealth" legislation--last minute changes in bills that pass without normal hearings, explanations and public consideration. These stealth tactics were utilized most recently to pass the legislative pay raise that was later repealed in an action currently under legal challenge by state judges. The irony of these Senator Fumo's proposals is that the legislative provisions now in the State Constitution, many of which were added in the 1874 revision in order to prevent just such secretive practices, would bar all such legislation now, if the Pennsylvania Supreme Court would only enforce them. No new amendment is needed. All that is necessary is for the court to overturn the 1986 Consumer Party case in which underhanded legislative practices were first permitted. And a good time to start would be an opinion finding the July pay raise bill unconstitutional and the resulting repeal therefore either unnecessary or justified. In either event, the judges' challenges to the repeal would be dismissed.



*Unless otherwise noted, all interpretations are written by Bruce Ledewitz, Professor of Law at Duquesne University School of Law and reflect his views.