Pennsylvania Constitution in the News - Current
The Pennsylvania Bar Association Constitutional Review Commission will be making recommendations to the House of Delegates on possible Constitutional Amendments. Amendments include: amending Article III, Section 14 to define the duty of the Commonwealth to provide a high quality public school education; amending Article VII, Section 13 to provide that the legislature must adequately fund the unified judicial system; amending Article VIII, Section 1 to state that real property is not a single class of property and that the legislature may establish specific classes of property for taxation purposes; and amending Article II, Section 3 to lengthen the terms of Senators and member of the House in the General Assembly, but limiting terms to three consecutive terms. Executive Summary Recomendations
Amaris Elliot-Engel of the Legal Intelligencer reported that the Commonwealth Court heard arguments on preliminary objections in another lawsuit challenging the mandatory retirement age for judges in Pennsylvania. This lawsuit is challenging the requirement on different grounds than the two suits currently before the State Supreme Court for expedited review. Here, the arguments are that the mandatory requirement curtails the right of voter to vote for their choice of judicial candidate and that the 2001 amendment that allows judges to serve until the end of the calendar year, renders the requirement irrational since some judges will serve longer than other past their 70th birthday. Mandatory Retirement Lawsuit Argued in Commonwealth Court
Bruce Ledewitz, Duquesne University School of Law, was quoted in the Philadelphia Daily News saying that he does not think the State Supreme Court took the case challenging the mandatory retirement age out of self-interest. It is more likely that the court took the case in order to dismiss it. This Case for the Ages should be dropped
Gina Passarella and Amaris Elliot-Engel of the Legal Intelligencer reported that the State Supreme Court issued a show-cause order to the only Philadelphia Traffic Court judge not indicted the ticket-fixing scandal. Traffic Court Judge Christine Solomon has been hearing cases since March of 2012. The order requires Solomon to show cause why she should not be suspended for 90-days for "refusal to cooperate with the court ordered administrative review of the Traffic Court." Solomon has said that she was not well the day that she declined the interview. Justices Take Step Toward Suspension of Traffic Court Judge
Amanda Cregan of The Intelligencer reports that there is speculation that the delay in the disposition of the challenge to Act 13, the Oil and Gas Act of 2012, is due to the existence of a 3-3 split on the Pennsylvania Supreme Court. The Justices heard the oral arguments on the case in October, 2012. Attorney's anticipated a decision on the case by January. The Justices may be waiting until they can issue a decision in the case that would have a majority opinion. Pa. judge conviction leads to delay in gas drilling ruling
Robert C. Heim, the lawyer for six of the eleven judges challenging the mandatory retirement age for judges in Pensylvania, responded in the Allentown Morning Call to the opinion piece by John Morganelli in which Morganelli stated that the State is facing a constitutional crisis. Heim writes that the "rule of necessity" is not voided in this case where a federal judge can hear the state claim because the Justices of the State Supreme Court have the final say on what the Pennsylvania Constitution means. Heim also writes that, although a constitutional amendment is an approach to changing the law that is to be supported, the judges bringing the action need not wait for that political uncertainty to take place. State court correct to hear judges' challenge to mandatory retirement
John Hays reported in the Pittsburgh Post-Gazette that the state Fish and Boat Commission is floating the idea of imposing a new fee for the "consumptive use" of water as a way to help fund the commission and the Department of Environmental Protection. Consumptive use of water is defined as taking water from the environment and not returning it. This happens when bottled water companies take water from streams and ship it out of state and when Marcellus Shale industry uses water in their operations. John Arway, the executive director of the commission, argues that the Pennsylvania Constitution mandates that the citizens own the water, so it is appropriate to charge companies whose use of water does not return it to the environment. Pa. fish and boat commission mulls charging industry for water: Senate resolution to explore imposing a fee has bipartisan support
Dean Kenneth Gormley, Duquesne University School of Law, testified at a State House of Representatives committee meeting Thursday about a bill under consideration that propose a constitutional amendment to raise the mandatory retirement age for judges to 75. Dean Gormley testified that he thinks that the age should be raised because it would allow experienced judges to serve longer, but that the retirement age should not be eliminated because it is also important to bring in fresh legal talent to the judiciary. Lawmakers Eye Bill to Raise Judges' Retirement Age to 75, The Legal Intelligencer
Zack Needles of the Legal Intelligencer reported that the State Supreme Court has issued its final report on the implementation of the recommendations of the Interbranch Commission on Juvenile Justice. The Court has adopted many of the recommendations, and it is still considering others like mandatory continuing education for juvenile court masters and hearing officers. The Court has declined to implement mandatory education for judges dealing with juvenile cases, since many judges already do this on their own. The Court also declined to create an expedited appeals system, since so few appeals are taken from juvenile Court. Other reforms not implemented require legislative action. State Supreme Court Issues Final Report on Juvenile Justice System
John M. Morganelli, Northampton County district attorney, wrote in the Allentown Morning Call that Pennsylvania is facing a State Constitutional crisis because of the process by which the State Supreme Court has taken up two of the lawsuits challenging the mandatory retirement age. Four of the justices now on the bench, including the Chief Justice Ron Castille, will be facing the mandatory retirement age in the next few years. The use of the King's Bench power to bring this issue before the high Court has fueled speculation in the legal community about whether a member of the Supreme Court might have encouraged the litigation. A federal lawsuit over the mandatory retirement age has been stayed pending a decision by the State Supreme Court on the state law issue. Morganelli takes the position that the appropriate way to address this issue is at the ballot box, not through a decision by the State Supreme Court. Will judicial self-interest trump the Pa. constitution?
Mark Nootbaar of WESA reported that State Senator Rob Teplitz has introduced legislation that would place restraints on private lottery operators similar to those placed on casino operators. Political contributions from the industry would be restricted and politicians could not hold an interest in these companies. Teplitz has introduced this bill now because he does not want to wait until any deal is approved to create a private lottery system. PA Lawmaker Wants New Controls on Lottery Operator
Bruce Ledewitz, Duquesne University School of Law, wrote an Op-Ed for the Pittsburgh Post-Gazette in which he discussed the continuing problems for the Pennsylvania Supreme Court. After reviewing a short list of the recent scandals involving the Justices, Ledewitz points out that at the root of all of these is the lack of institutional checks on the Supreme Court, such as those that exist for the other branches of government in the State. What checks and restrictions on power there are on the Court are regularly disregarded by the Court. Pennsylvania's Supreme Court, still broken
Cindy Lee Cumpston reported in the Herald-Standard that the Greene County commissioners unanimously voted to abolish the office of jury commissioner at their December 13th meeting. Now that the law allowing commissioners to do that has been overturned, the county is awaiting instruction from the state about what to do with regard to the office. After state Supreme Court overturns law county officials await verdict for jury commissioners' office
Amaris Elliott-Engel of The Legal Intelligencer reported that Pennsylvania Supreme Court Justice Jane Orie Melvin will be resigning her seat effective May 1, 2013. Her letter discussed the three decades that she has been on the bench as a trial court judge and as an appellate court judge. Orie Melvin Resigning From Supreme Court
Amaris Elliott-Engel of The Legal Intelligencer reported that the Pennsylvania Supreme Court has granted expedited review in two of three lawsuits challenging the mandatory retirement age of 70 for judges in the Pennsylvania Constitution. The judges argue that this requirement mandated by the state constitution violates another state constitutional right of "enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." Supreme Court Grants Expedited Review of Mandatory Judicial Retirement
Karen Langley of the Pittsburgh Post-Gazzette reported that Governor Tom Corbett has decided to renegotiate the lottery privatization contract with Camelot Global Services rather than appeal the rejection of the deal by Attorney General Kathleen Kane. The Corbett administration disagrees with Attorney General Kane about the legality of the deal and is seeking "to provide clarification to the attorney general" with the renegotiation of the contract. Pennsylvania lottery deal being revised to address attorney general's concerns
Zack Needles of The Legal Intelligencer reported that at the first oral arguments since Justice Joan Orie Melvin was convicted, some of Justices who are usually quieter during oral arguments were more active. At the same time, Justice Seamus McCaffery, who is usually more active, only engaged counsel once in, Commonwealth v. Gary, a case in which the prosecution was asking for the State to adopt the federal automobile exception to the warrant requirement. While some observes had wondered if there would be more sparks flying between the justices because of recent comments by Chief Justice Ronald D. Castille about the referral fees received by Justice McCaffery's wife, all of the justices maintained their normal air of decorum and civility while at oral arguments. Some Justices Became More Vocal at Recent Oral Arguments
Amaris Elliott-Engel of The Legal Intelligencer reported that at the meeting of the Philadelphia Bar Association on March 18, 2013, Justice Michael Eakin said that although he thinks the Court has the ability to appoint an interim Justice, the court is not likely to do so because it could pre-empt Governor Corbett. The Court does not want to be in the position of "ticking" him off. Justice Eakin acknowledged that there was criticism of the legality of the Court's appointing a replacement when Justice Rolf Larsen was removed, but he did not agree that there was any problem with the Court's doing so. Supreme Court Won't Fill Orie Melvin's Spot on Its Own, Eakin Tells Bar
Saranac Hale Spencer of The Legal Intelligencer reports that Chester County Magisterial District Judge Mark Bruno has sued the Pennsylvania Supreme Court and six justices individually in Federal court for violations of his 14th Amendment due process rights. Judge Bruno was suspended without pay on February 1, 2013 by the Pennsylvania Supreme court along with other current and former Philadelphia Traffic Court judges. Judge Bruno has plead not guilty to charges of wire fraud, mail fraud, conspiracy, and aiding and abetting. As a magisterial judge, Judge Bruno sat on the traffic court infrequently - usually once a year for four or five days. Traffic Court Judge Brings Federal Suit Against Pa. Supreme Court
Craig R. McCoy of The Philadelphia Inquirer reports that questions have been raised as to whether Justice MacCaffery should have disclosed income and recused himself from ten cases involving law firms from which his wife, Lise Rapaport, received referral fees. Chief Justice Ronald D. Castille has made a statement to the effect that payment of these referral fees to the wife of a judge who also works in his judicial chamber creates a conflict of interest and the appearance of impropriety. Another issues that has been raised with respect to these referral fees is whether receiving these fees constitutes the practice of law, from which Rapaport is barred while being employed by the courts. Referral fees given to wife of Pa. Supreme Court justice raises questions
Jeremy Sellew of the the Valley Independent reports that the superintendent of the Charleroi Area School District, Dr. Brad Ferko, wants to explore the possibility of random drug testing for students in extracurricular activities and for those applying for driving passes. He presented this idea at meeting of the school board on February 26, 2013. In the discussion that took place, Solicitor Mike Lucas pointed out that random drug testing implicates the privacy protections of the Fourth Amendment of the Federal Constitution and Article I, Section 8 of the Pennsylvania Constitution. Charleroi Area eyes student drug tests
Dan Pero writes in the Pittsburgh Tribune Review that the recent trial of Justice Joan Orie Melvin is being used by advocates for merit selection to push for change in the judicial selection process. Legislation has been introduced by two state senator that would change the selection of judges from election to merit selection. Pero goes on to discuss some of the issues he sees present in having a system of merit selection such as domination of the selection process by trial lawyers and the lack of accountability by judges to the electorate. Pero points out that the merit selection process in practice has been no less political than the election process in states that have merit selection. No merit in merit selection
Brad Bumsted of the Pittsburgh Tribune-Review reported that 10 Republican legislators have decided to decline to participate in the state pension system. A variety of different reasons have been cited by the different legislators, one of which is that the Pennsylvania Constitution limits compensation for lawmakers to salary and millage. It specifically states that there is "no other compensation." 10 GOP lawmakers forgo their state pension
Professor Wesley Oliver, Duquesne University School of Law, was quoted in the Pittsburgh Tribune review stating that under the Pennsylvania Constitution, Judge Nauhaus, the trial Judge, has the authority to remove state Supreme Justice Joan Orie Melvin from the Court. The Constitution provides for an automatic disqualification for conviction of a felony. State Supreme Court Justice Orie Melvin might ‘want to fight until very end'
Bruce Ledewitz, Duquesne University School of Law, was quoted in the Allentown Morning Call stating that, although Governor Corbett's pension reform plan is not the same as the retroactive change attempted by Governor Thornburgh, which was overturned by the State Supreme Court, Governor Corbett's plan to change the pension plan of vested employees is still not something that the courts have upheld. Corbett's pension reform could end up in the court: Sticking point is governor's plan to change benefits of current employees
Paula Ward of the Pittsburgh Post-Gazette writes that, Suspended Supreme Court Justice Joan Orie Melvin was convicted of all counts but one, official oppression, in her criminal trial for political corruption. Her sister Janine Orie was convicted of all of the counts filed against her. Justice Orie Melvin, sister found guilty: Jury finds that pair used state workers to run campaigns
Bruce Ledewitz, Duquesne University School of Law, was quoted in the Pittsburgh Tribune-Review stating that Governor Corbett should use the King's Bench power to appeal the decision of Attorney General Kathleen Kane rejecting the contract between the Corbett Administration and Camelot Global Services to privatize the lottery directly to the State Supreme Court. This would be a faster solution than revising the contract and sending it through the Legislature. Because Kane's decision challenges the governor's power, this would be the best way to get a quick resolution. Corbett says decision on next lottery move likely to come next week
Zack Needles of The Legal Intelligencer reviews the frequency of 3-3 splits on the Pennsylvania Supreme Court since Justice Joan Orie Melvin was suspended from the bench in May of 2012. While there have been a few 3-3 splits, those splits have not always occurred along party lines. Justice Joan Orie Melvin's absence means more 3-3 splits on Pa. Supreme Court
Mark Shade writes in the Bucks County Courier Times that a lawsuit has been filed challenging the possible agreement between the Corbett administration and Camelot Global Services to operate the state's lottery system. The lawsuit claims that the privatization through this aggreement would violate the state's lottery law as well as the Pennsylvania Constitution because it would side step legislative review. Opponent of lottery privatization ramp up with lawsuit, website Brad Bumstead reports on TribLive.com that the deal has been signed by the Corbett administration and has been sent to Attorney General Kathleen Kane for review of its form and legality. Democratic legislative leaders ask attorney general to reject lottery contract
Sandra Neuman and Joshua Geist write in in the Pittsburgh Post-Gazette concerning a pending "venue reform" bill in the General Assembly. House Bill 1976 would limit the venue for a personal injury lawsuit against corporations to the county in which the injury happened or in which the principle place of business is located. The authors claim that the proposed law would not affect all commercial claims equally and benefits large corporations over individuals. They also maintain that since the proposed law dictates venue, it is probably in violation of the separation of powers under the Pennsylvania Constitution, which vests the power to write rules governing the practice and procedure in civil court action in the Supreme Court. Venue reform bill merits outcry from residents
Professor Bruce Ledewitz, of the Duquesne University School of Law, was quoted in the Pittsburgh Tribune Review by Adam Brandolph on the question of whether or not the State Supreme Court would take up Supreme Court Justice Joan Orie Melvin's petition for King's Bench review. He predicted that they would not because her argument that she violated the code of judicial conduct and could not be criminally prosecuted was "not a strong legal claim." Attorneys for Joan Orie Melvin file motion asking Pa. Supreme Court to halt her prosecution
Three articles in the January 7, 2013 edition of the Pittsburgh Post-Gazette review the decisions made by Pennsylvania's appellate courts in 2012 and the effect of the suspension of Supreme Court Justice Joan Orie Melvin on the State Supreme Court. Cases and Issues of 2012, A-6 Michael A. Riccardi of The Legal Intelligencer discussed the rise of Supreme Court Justice Thomas G. Saylor's influence on the direction of the Supreme Court's decision making process. He has written more leading opinions in this past year than in previous years. The Supreme Court heard the appeal of the denial of an injunction by the Commonwealth Court in the voter ID case in which the Supreme Court remanded the issue for further review. One justice out; Saylor gains impact
Ben Present of The Legal Intelligencer reviewed the top cases decided by both the Commonwealth Court and the Superior Court. The Commonwealth Court heard a challenge to the state's Oil and Gas Act, and while Judge Simpson initially denied a motion for a preliminary injunction of the Voter ID Act, he granted it after he found that, in his predictive judgment, there could still be voter disenfranchisement for the 2012 general election. Voter ID, Act 13 took the spotlight
The Superior Court overturned Pennsylvania's statutory ban on "wrongful birth" lawsuits because it was passed in violation of the single-subject rule of Article II, Section 3 of the Pennsylvania Constitution. The Superior Court also heard the first appeals of juvenile sentencing for life in prison without parole in the wake of the decision in Miller v. Alabama, which held that life in prison without parole for juveniles was a violation of the Federal Constitution. Top issues revolved around constitution
Matt Hughes, of the Times Leader, writes that the district attorney of Luzerne County has decided not to pursue the ouster of Plymouth councilman Bill Dixon as ineligible to hold elected office under the infamous crimes clause. Dixon was elected to office in 2011. He has convictions for a drug charge and a burglary charge from the 1970's. Governor Tom Corbett recently pardoned Dixon for the state charges stemming from those crimes. The federal conviction for conspiracy to distribute methamphetamine remains. Dixon's lawyer is in the precess of seeking a presidential pardon for that charge. DA not pursing Dixon's removal
In an article in the Pittsburgh Post-Gazette, Torsten Ove writes that a settlement has been reached between Rabbi Daniel Wasserman and the Commonwealth of Pennsylvania. Rabbi Wasserman has agreed to drop his suit in exchange for a clarification that clergy can perform a religious burial without a funeral director being present. The suit was brought in order to get the state to clarify the terms of the law, because funeral directors had been filing reports that he was in violation of the law. Past state investigations did not lead to charges being filed. Clergy to be allowed to conduct funerals, Deal ends conflict with morticians
Robert Moran reported on Philly.com that six Pennsylvania judges have challenged the Constitutionality of Pennsylvania's mandatory retirement age of 70 for judges under both the Federal and State Constitution. The suit was filed Wednesday. Pa. judges sue over mandatory retirement
The Corbett administration has refused to hand over all documents in a federal request for documents relating to the Voter ID Law and expresses concerns that the federal government has overreached its authority, according to Karen Langley of the Pittsburgh Post-Gazette. The Justice Department is reviewing the Pennsylvania Law for compliance with the 1965 Voting Rights Act. The day after the request, Carol Aichele, Secretary of the Commonwealth, indicated that the state would comply. The subsequent letter by general counsel, James Schultz, indicates his belief that the request may be politically motivated. Pennsylvania Balks on Fed's Voter ID Bid Calls Request for Documents on Law's Requirements Politically Motivated
Dean Ken Gormley, Duquesne University School of Law, was quoted in the Lawyers Journal on the issue of whether a decision by the State Supreme Court on the State's Voter ID Law would have any bearing on whether the U.S. Department of Justice might proceed with federal lawsuit. He indicated that it was possible that such a suit could be brought under the Voting Rights Act, in which case the state does not receive the same deference as under the State Constitutional Provisions under which the suit in state court was brought. Local Legal Scholars Weigh in on Controversial PA Voter ID Law, by Tracy Carbasho
In a 5 to 1 opinion, the Court of Judicial Discipline has ruled that Supreme Court Justice Joan Orie Melvin will be suspended without pay, according to Paula Reed Ward of the Pittsburgh Post-Gazette. The Court found that Justice Melvin's conduct was "so egregious" that she should not receive pay. Orie Melvin's attorney argued that suspension of judges without pay is rare, and that the criminal charges were weak. Judge Curran disagreed and wrote that this was the only way to restore the public trust in the courts. Justice Orie Melvin should not get salary, judicial panel rules.
Dean Ken Gormley, Duquesne University School of Law, was quoted in the Pittsburgh Post-Gazette commenting on the appeal to the Pennsylvania Supreme Court of the denial of an injunction by the Commonwealth Court relating to the state voter ID law. He stated that if the court concluded that voters could be disenfranchised by the law, the State Supreme Court may postpone implementation of the law. Since the November election involves both state and federal elections, including the election of the President, the court may be more cautious. Pa. voter ID opponents appeal to high court
Dean Ken Gormley, Duquesne University School of Law, was quoted in the Pittsburgh Post-Gazette concerning the possibility of a 3-3 split on the Pennsylvania Supreme Court when the Court hears the appeal from the decision of the Commonwealth Court upholding Pennsylvania's Voter ID Law. Dean Gormley does not expect the Court to be unanimous, but he points out that the justices can surprise you with how they vote. Voter ID appeal likely to be heard quickly by state Supreme Court: High Court Could Split Appeal, 3-3
In an editorial in the Philadelphia Daily News, the expected widespread effect of Pennsylvania's voter ID law is discussed. Figures released in July reveal that over 750,000 citizens registered to vote in Pennsylvania do not have the required identification. State's voter ID law could shut out over half-million citizens In an article in the Philadelphia Inquirer, Clara Ritger discusses plans for a new voter card, which would be available for those who are unable to easily get all of the documentation required for a non-driving-ID. Voters would still need to travel to a PennDot photo and license center to obtain this ID. Pa. officials to unveil new voter-ID card Hearings on the challenge to the law have begun in the Commonwealth Court. In an article in the Pittsburgh Post-Gazette, Karen Langley quotes Judge Simpson who expects the challenge to be appealed to the State Supreme Court for a decision well in advance of the November 2012 election. Judge Simpson expects that the Commonwealth Court will be able to make a decision during the week beginning with August 13th. Commonwealth Court opens hearing on Pennsylvania's voter ID law
Democratic members of the state House and Senate, along with some Democratic country commissioners, and some private citizens have challenged the most recent legislative redistricting plan, which was approved on June 8, 2012, according to an article by Patty Yauger in the Herald-Standard. One appeal states that the new maps for senatorial districts "contain a significant amount of unnecessary county divisions," which would not be inconformity with the State Constitutional requirement of only dividing a county when absolutely necessary. Kasunic joins House Democrats in redistricting suit
According to an article by Sam Galski in the Standard-Speaker, preliminary objections have been filed to a "declaration of taking" by the city of Hazelton in June. The city plans to use the property for a parking garage, but that would only take up a third of the property under current plans. The other two-thirds would be office and retail space. Counsel for the affected owner is arguing that the taking is unconstitutional because the plan does not comply with the public use requirement of the Pennsylvania Constitution. Greco Takes Dispute to Court
At the end of June, Senior Judge R. Stanton Wettick ordered that former Supreme Court Justice Sandra Shultz Newman must sit for a deposition in July by legal counsel for the First Judicial District's legal malpractice lawsuit against Jeffery B Rotwitt, according to an article by Amaris Elliot-Engel of the Legal Intelligencer. Rotwitt is an attorney retained by the court system to search for building locations for the Philadelphia Family Court who ended up being on both sides of the transaction. In his order, Wettick cites a March 18, 2008 email from Newman to Rotwitt which says that her son should get credit for originating the project to Obermayer Rebmann Maxwell & Hippel, another defendant in the lawsuit. Wettick ruled that Newman is not entitled to a protective order from sitting for a deposition. Judge Orders Newman to Sit for Deposition in Family Court Suit According to an article by Craig R. McCoy in the Philadelphia Inquirer, Newman has decided to waive her claim of immunity, even though she still thinks she has it, and will answer questions concerning the building project. Former Justice Sandra Schultz Newman will answer questions about the Family Court building project
In an article in the Allentown Morning Call, Peter Hall describes the goal of a new law signed by Governor Tom Corbett that would allow prosecutors to use the testimony of expert witnesses to counter a defense in child sex abuse cases where defense attorneys try to create doubt about the veracity of victim testimony on the basis that the victim delayed in coming forward when the abuse first happened. Allowing expert testimony about the effect that abuse has on young children would help give voice to a victim's claims that he or she delayed in coming forward because of the fear and shame associated with the sexual abuse. The Pennsylvania Association of Criminal Defense Lawyers has argued that the law violates the separation of powers clause in the Pennsylvania Constitution, which reserves the power of making rules for the courts to the judicial branch. Law gives prosecutors tool to explain victims' delay in reporting sex crimes
In an article in the Widener Law Newsletter, Barbara R. Grimaud analyzes the likelihood of success in Robinson Township v. Commonwealth, the Constitutional challenge to Pennsylvania's Act 13, which amended Pennsylvania's Oil and Gas Act. She does not expect that the first count alleging that the General Assembly violated Article I, Section1 of the Pennsylvania Constitution will be successful given the strong presumption of the validity of legislative actions and the fact that municipalities maintain control over conditional uses. There is a possibility that the courts might find in favor of the municipalities on the second and third counts: that the General Assembly engaged in spot zoning by allowing gas drilling in any are regardless of the terrain or surrounding communities interests and that Act 13 prevents the municipalities from fulfilling their duties under the State Constitution of employing their police powers pursuant to the Municipalities Planning Code (MPC). With respect to the second count, spot zoning would result from the requirement of Chapter 33 that oil and gas activities are permitted in some districts irrespective of the use of the surrounding areas, and this would create an "island" that is "unjustifiably different from the surrounding land." With respect to the third count, Act 13 requires municipalities to authorize oil and gas operation in all zoning districts. This conflicts with the MPC, which requires the needs and citizens and the suitability and special nature of the municipality be considered in the construction of zoning ordinances. Municipalities have the constitutional authority to act for the health, safety, and welfare of the public. The result would be that municipalities would not be able to fulfill their constitutional or statutory obligations. Constitutional Challenges to Oil and Gas Law Amendment (Act 13)
On June 21, 2012, the Supreme Court of Pennsylvania issued an order adopting and amending the Pennsylvania Rules of Criminal Procedure to include indicting grand juries as an option for courts in Pennsylvania. In order to proceed with an indicting grand jury, a court of common pleas will have to obtain written permission from the Supreme Court. In an article in the Philadelphia Inquirer, Craig R. McCoy discusses the reasons behind readopting indicting grand juries. Witness intimidation has become a serious problem in some areas, in particular, Philadelphia. The indicting grand jury has the power to indict a suspect, and can be used by the court for that purpose in the place of a preliminary hearing where witnesses would have to testify publicly. Witnesses would still have to testify at trial. Concerns have been raised by defense attorneys about the nearly unlimited extent of power that this may give the government in bringing a case to trial. Pa. high court clears secret grand juries
According to an article by Zack Needles of the Legal Intelligencer, a three-judge panel of the Pennsylvania Court of Judicial Discipline met in Harrisburg on June 12, 2012 to hear testimony on whether Justice Jane Orie Melvin should continue her paid suspension, or whether she should be suspended without pay. The panel did not make a ruling on the issue and deferred that decision. Another hearing will be scheduled, possibly later this month. There was not much in the way of testimony offered on Tuesday as the Judicial Conduct Board took the position that the current order should stand and counsel for Justice Orie Melvin urged to court to defer to the parties' stipulation to that effect. The court indicated that despite of the parties' agreement, the function of the court to protect the integrity of the state's judicial system requires that it decide the issue. Orie Melvin's Pay Still Up in the Air Following Hearing
On June 5, 2012, the state House of Representative Judiciary Committee tabled HB 1815, a bill that proposed an amendment to the Pennsylvania Constitution that would have changed the method of selection of judges in the state from judicial election to merit selection. Supporters of the merit selection of judges gained some momentum for their cause after judicial scandals like "kids-for-cash" in Luzerne County, according to an article by Zack Needles of the Legal Intelligencer. The events in May surrounding Justice Joan Orie Melvin's suspension and the charges filed against her were very closely followed by the tabling of this bill. One supporter of merit selection suggested that one reason for this is that the legislators are suffering from "Orie fatigue." So even with increased awareness of judicial scandals from these recent events, putting merit selection before the voters will not be moving forward at this time. The debate over which system of selecting the judiciary is best has been ongoing, but merit selection as a possible solution to recent scandals in the judiciary branch is not likely to be raised again for a while. State House Tables "Merit Selection" Bill Despite Recent Judicial Scandals
Two recently proposed amendments to the Pennsylvania Constitution address significant issues of taxation in the Commonwealth. On May 22, 2012, Senate Bill 161 was introduced. This bill contains proposed amendment that would which give the legislature the sole power to define what is a purely public charity for the purposes of exemption from taxation under Article VIII, Section 2 of the State Constitution. This bill is a response to the recent decision in Mesivtah Eitz Chaim of Bobov, Inc., v. Pike County Board of Assessment Appeals, __A.3d__, 2012 WL 1415770 (Pa. April 26, 2012) that applied the HUP test to determine that a camp was not a purely public charity. Institutions of Purely Public Charity Qualifications On May 30, 2012, House Bill 2300 was introduced. This bill contains a proposed amendment that would allow the General Assembly to authorize local taxing authorities to exclude 100% of the assessed value of family farms from property taxes. Currently, only 50% of the home's median assessed value may be excluded. Bringing the Property Tax Issue Home, by State Reps. Ryan Aument and Bryan Cutler
On May 25, 2012, Bruce Ledewitz, wrote an op-ed for the Philadelphia Inquirer explaining why the recent suspension of Supreme Court Justice Joan Orie Melvin by the Pennsylvania Supreme Court violates the limits put on that court's power in a 1993 amendment to the Pennsylvania Constitution. The constitution prevents the Supreme Court from overseeing judicial discipline and instead provides an independent judicial disciplinary system. Rather than waiting for that disciplinary system to make the final decision about suspension, the Supreme Court once again acted in contravention of the state constitution by disciplining a Justice, as they did in 1993 when they suspended Justice Rolf Larsen. So far, they have not assigned a "senior judge" to the position as they did in 1993. That would also be a violation of the Constitution, as this is a power that only applies to the lower courts. High court's suspension of Orie Melvin is dubious
Numerous media stories appeared over the weekend concerning the grand jury presentment handed down on May 18 against Justice Joan Orie-Melvin of the Pennsylvania Supreme Court. Justice Melvin has been charged with several counts, including felonies, involving alleged political use of her office and staff. She has been suspended indefinitely by the Court.
On January 25, 2012 the Pennsylvania Supreme Court issued a 4-3 per curiam order rejecting the redistricting plan drawn by the Pennsylvania Legislative Reapportionment Commission. The order stated that the plan would be remanded to the Commission for revision in accordance with a full opinion to be later issued by the Court. On February 3, 2012, the majority opinion was issued by Chief Justice Castille. Justice Saylor issued a concurring and dissenting opinion. Justice Eakin issued a concurring and dissenting opinion. Justice Orie Melvin issued a dissenting opinion.
On Wednesday, October 26, 2011, the Pennsylvania Senate narrowly passed Senate Bill 1, the taxpayer-funded private school vouchers bill. Opponents of the bill claim that it violates at least four provisions of the Pennsylvania Constitution; for example, Article III's prohibition of the use of public funds for the support of religious schools. Senator Anthony Williams, one of the bill's co-sponsors, defended the bill on the ground that it is up to the Pennsylvania Supreme Court to determine the constitutionality of the voucher program, not the legislature.
A number of recent news stories have appeared concerning calls for the resignation of Justice Joan Orie-Melvin, including a story in the Pittsburgh Tribune Review by Bobby Kerlik and Brad Bumsted that broke the news on Tuesday, January 10, 2012, that Justice Joan Orie Melvin received a target letter and subpoena from an Allegheny County grand jury--Joan Orie Melvin a Target of Grand Jury--and a story in the Post Gazette by Paula Reed Ward on Wednesday, January 11, 2012 that included a quote from Chief Justice Castille that "a four-member majority of the court could decide to suspend any justice, even without charges being filed." Pa Justice Staying on Bench Amid Probe. Justice Joan Orie Melvin staying on state Supreme Court amid probe
On October 18, 2011, the state Court of Judicial Discipline removed Merlo, a Lehigh County magisterial district judge, from the bench after its finding in August that she violated the Pennsylvania Constitution and the standard of conduct for MDJs by telling her staff that she would not be coming to court 116 days over a two-year period and, when she did come to court, habitually arriving tardily. Removal from office, a sanction handed down to Pennsylvania district judges only five other times in the last decade, is the most severe available in the Court of Judicial Discipline. Allentown's Judge Merlo removed from bench.
On September 14, 2011, the Legislative Reapportionment Commission held a public hearing at Duquesne University School of Law, which allowed citizens to voice their opinions on the redrawing of Pennsylvania's legislative district lines.
State legislators say the redistricting process is going, but at a dismaying and troubling rate. While some believe the redistricting process is "still being perfected,” others say a preliminary plan may already be drafted and the proposed redistricted maps readily available – just beyond closed doors. “Crazy eights”, Josh Barr, Northeast Pennsylvania Business Journal, 2011 WLNR 20947793 (9/1/2011).
On August 30, 2011, William Costopoulos, the attorney for state Senator Jane Orie, stated that there is nothing new to the additional criminal charges filed against her by Allegheny County prosecutors, contending the move is a "vindictive maneuver" meant to influence the her pending Superior Court appeal aimed at preventing a retrial on public corruption charges. Bruce Ledewitz, a law professor at Duquesne University, said if the defense submitted fraudulent documents as evidence, the courts will likely allow another trial. See Appeals may delay trial in Orie Case.
On Monday, August 15, 2011, the Pennsylvania Supreme Court announced that -for the first time in history- it will allow television cameras to record oral arguments for later broadcast. Paula Reed Ward, Pittsburgh Post-Gazette, State Supreme Court coming to TV.
On July 8, 2011, Governor Tom Corbett vetoed a measure that would have imposed a temporary moratorium on court-ordered countywide reassessments in Washington County. As the bill only applied to Washington County, the Governor stated that it was unconstitutional special legislation and a violation of the Uniformity Clause of the Pennsylvania Constitution. House Bill 1696.
On June 24, 2011, Sari Heidenreich, an intern with the Pennsylvania Legislative Correspondents' Association, stated in the Pittsburgh Tribune-Review that Governor Tom Corbett wants lawmakers to approve legislation providing school vouchers by June 30, 2011. Opponents of the legislation claim that vouchers for school choice violate Article III, Section 15 of the Pennsylvania Constitution, which provides that "no money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school." It should be noted that this last-minute push failed. [According to Senate Education Chairman Jeffrey Piccola, a leading advocate for school vouchers, the issue will have to be taken up again in the fall, after the recess.]
On June 23, 2011, the Supreme Court of Pennsylvania, in a per curiam order, ruled that the Pennsylvania Superior Court should reconsider whether the double jeopardy claim made by Senator Jane Orie, whose first trial on public corruption charges ended in a mistrial, was frivolous in her attempt to avoid a second trial over her alleged work on state time. The retrial is scheduled for October.
On May 31, 2011, the trial for Allentown District Judge Maryesther Merlo commenced; in addition to allegations of frequent lateness and absenteeism, the state agency in charge of investigating complaints against judges accused Merlo of being rude to lawyers and defendants and making bizarre requirements of defendants who appeared before her. See Trial Begins for Allentown Judge Maryesther Merlo.
In light of the recent decision upholding against federal pre-emption challenges, the Legal Arizona Workers Act, which allowed the state to revoke business licenses of local companies who "intentionally and knowingly employed illegal immigrants, on June 6, 2011, the U.S. Supreme Court ordered the 3rd U.S. Circuit Court of Appeals to reconsider a decision last year that struck down a similar set of ordinances regulating immigration in Hazleton, Pennsylvania. See Review of Hazleton immigrant law ordered.
Article 1, Section 21 guarantees that the "right of the citizens to bear arms in defense of themselves and the State shall not be questioned." On March 7, 2011, House Bill 40 was passed, which expanded the "Castle Doctrine" to public places, allowing the right to use a gun or other deadly force in self-defense in situations outside a person's home or business. Gov. Tom Corbett signed the bill on Tuesday, June 28, 2011.
On March 10, 2011, Richard Komer, senior litigation attorney for the Institute for Justice wrote an op-ed piece for the Centre Daily Times discussing the constitutionality of school vouchers under the federal constitution and Article III, Section 15 of the Pennsylvania Constitution. See Vouchers Allowable under Constitution.
On January 18, 2011, Leo Strupczewski wrote a story concerning the challenge by suspended Allentown Magistrate Maryesther Merlo to the authority of the Pennsylvania Supreme Court to issue such a suspension. See High Court's Authority to Suspend Judges under Fire.
On January 7, 2011, Brad Bumstead reported in the Pittsburgh Tribune-Review that on the eve of leaving office, Governor Ed Rendell said his "one regret" is having signed the 2005 pay raise legislation. See Rendell regrets OK of '05 pay raise.