Pennsylvania Constitution in the News - 2005
King's Bench Declaration Stirs Controversy, December 31, 2005, Brad Bumstead and Debra Erdley of the Pittsburgh Tribune-Review wrote a story giving some of the background of the King's Bench power the Pennsylvania Supreme Court invoked to hear the legislative pay raise challenge filed by Gene Stilp and earlier dismissed as moot by Commonwealth Court.
Governor Ed. Rendell announced on Saturday, December 17, 2005, that he intends to appoint Allegheny County Common Pleas Judge--and Duquesne University School of Law graduate--Cynthia A. Baldwin to the Supreme Court of Pennsylvania to fill the vacancy created by Justice Russell Nigro's defeat in the November 2005 retention election. It was also reported that no significant opposition to her appointment was expected in the State Senate, which must consent to the appointment by a 2/3 vote. Bill Schackner reported in the Pittsburgh Post-Gazette that the "vote will likely take place next spring." No explanation was given for the delay in consenting to the appointment. If the appointment is consented to, Judge Baldwin will serve until January 2008, when the permanent replacement for Justice Nigro's seat will begin a ten-year term. The election of a permanent replacement will be held in November 2007. Judge Baldwin announced that she would not be a candidate for that permanent seat.
7 More Judges Sue to Reinstate Their Pay Raises, Christine Schiavo of the Philadelphia Inquirer reports on December 15, 2005 that 7 more judges have sued to overturn the repeal of the pay raise. The article explains that despite the obvious conflict of interest the case presents for any Pennsylvania judge, there is no alternate forum to hear the case.
Jury Convicts Shaler Legislator Habay of Conflict of Interest, Paula Reed Ward of the Pittsburgh Post-Gazette reports on December 13, 2005 that Jeff Habay was convicted of a conflict of interest charge and that the jury failed to convict him of theft of services.
The two challenges to the repeal of the pay-raise sparked recent commentary in the media. In the Pittsburgh Post-Gazette, Allegheny County Common Pleas Judge Jeffrey A. Manning praised the linkage in the original pay raise of Pennsylvania judicial salaries to federal judicial salaries, including Common Pleas to Federal Magistrates. Such a linkage would prevent judges from compromising judicial independence, or appearing to do so, by going to the legislature for pay raises in the future. Lost in the Pay-Raise Revolt--Parity for Judges, December 11, 2005. In The Morning Call, Northampton County District Attorney John Morganelli criticized efforts by Pennsylvanians for Modern Courts to push for merit selection of judges as a way of restoring public confidence in the courts. The problem is not elections, but "judicial arrogance". 'Merit Selection' Won't Cure State Courts' Illness, December 12, 2005. In the Philadelphia Inquirer, columnist John Grogan criticizes the judicial challenges to the repeal and criticizes Chief Justice Cappy for involvement in the pay raise. A victory in the judges' lawsuit would allow a pay raise for everyone while allowing the legislators to hide behind the court. Judging Judges by their Actions, December 12, 2005. An editorial in the Patriot News on Sunday argues that the Pennsylvania Supreme Court needs to void the original pay-raise in any proceedings concerning the repeal: "The court needs to declare the original pay increase bill unconstitutional, thereby voiding, rather than repealing, pay increases for jurists." Only in this way will the legislative practices that led to the pay-raise be ended. 12/11/05.
Second Judge in Two Days Challenges Pay-Raise Repeal, Marc Levy of the Associated Press reports on December 9, 2005 that a second challenge to the pay-raise repeal was filed by Judge John W. Herron of the Court of Common Pleas of Philadelphia County. Judge Herron's lawsuit challenges the repeal only insofar as it affects the judicial part of the pay raise. Judge Herron issued a joint statement with Judge Albert Sheppard, the plaintiff in the first lawsuit, justifying the suits as in the public interest not only to restore the pay raise for judges but to eliminate dependence on the legislature for judicial pay increases in the future.
Republican Legislative Leaders Sue Democratic Governor over Line-Item Veto, Sean Connolly reports in the Pennsylvania Law Weekly that Republican legislators sued Governor Edward Rendell for allegedly abusing his line item veto power by removing only selected language in an appropriation, as opposed to striking down one entire appropriation. Governor Rendell retained the Medicaid appropriation while removing language restricting use of the money for abortions or abortion counseling. 28 PLW 1184.
Christine Schiavo of the Philadelphia Inquirer reported on Thursday, December 8, 2005, that Chief Justice Cappy has recused himself from hearing cases involving the judicial pay raise and its repeal.
In a story by Amy Worden, the Philadelphia Inquirer reported on Tuesday, December 6, that Philadelphia Common Pleas Court Judge Albert W. Sheppard has filed suit challenging the pay raise repeal, apparently to strike down the entire repeal. A second suit will reportedly be filed on Wednesday challenging only the repeal of the salary increase for judges.
Mark Scolforo of Associated Press reported on Tuesday, November 29, 2005, that plaintiff Gene Stilp's response to motions to dismiss filed by the defendants in the pay raise lawsuit contained a request that the Pennsylvania Supreme Court take the case at this pre-trial stage. This presumably represents an attempt by the plaintiff to invoke the court's King's Bench power, which authorizes the supreme court to intervene at any stage in any case pending in the Pennsylvania court system. This request may have the effect of substantially increasing the public impact of the pay raise litigation, which until now has remained in the background of pay raise issues.
Access to Court Records at Stake, Robert C. Clothier criticizes the practice of the Administrative Office of the Pennsylvania Courts in not allowing the same access to records online that is allowed in a request for a hard copy at a courthouse. The writer believes this violates the Article I, section 11 open courts provision. 2005 WLNR 16441924.
On October 30, 2005, the Pittsburgh Post-Gazette printed dueling editorials concerning the upcoming judicial retention election that would ultimately remove Justice Russell Nigro from, and return Justice Sandra Schultz Newman to, the Pennsylvania Supreme Court. Arguing in favor of retention was Duquesne Law Professor Ken Gormley, 2005 WLNR 17584163, and against, Timothy Potts, co-founder of Democracy Rising Pennsylvania, 2005 WLNR 17584105.
Judge Griffin to Fight Attempted Outer from Bench, Asher Hawkins reports that Philadelphia Municipal Court Judge Deborah Shelton will oppose the attempt by the Judicial Conduct Board to remove her from the bench pursuant to the Article II, section 7 infamous crime provision on the basis of a 1984 guilty plea using false social security numbers to obtain credit cards. The Board filed a quo warranto action before the Pennsylvania Supreme Court, the first time the Board has attempted such an action.
Tuesday, 11/8/05--Various news stories are reporting that the House and Senate cannot agree on language to repeal the pay raise. The disagreement appears to stem from a desire by some lawmakers to be sure that the pay raise for judges is repealed as well--a desire that perhaps cannot constitutionally be accomplished. See Commentary.
It was widely reported in the media that late on Wednesday, November 2, the Senate and House repealed the pay raise enacted for a number of state officials last Spring. See e.g., Tom Barnes, Legislators Repeal Pay Raise, Pittsburgh Post-Gazette, A-1, 11/3/2005.
In furor over pay raise, sights are set on judges, Tom Barnes for the Post-Gazette, 10/10/2005, reports on efforts by opponents of the legislative pay raise to defeat Justices Russell Nigro and Sandra Schultz Newman in their 10-year retention elections on November 8. 2005 WLNR 16407457 (posted 10/11/05)
The following stories about the legislative pay raise appeared in the latter part of August. Since then, the pace of such stories has slackened considerably.
Russ Diamond, creator of www.pacleansweep.com , says that "you cannot unviolate the constitution of Pennsylvania," in response to legislators who accepted the early pay raise, then changed their minds.
"Pay-raise challenges have history of defeat" 2005 WLNR 13224027 Philadelphia Inquirer 8/23/05 Various commentators weigh in on the chances of a successful court battle against the pay raise. Bruce Ledewitz of the Duquesne University Law School calls the unvouchered expenses a "blatant violation of the constitution" but notes that the case "won't have a chance until it reaches the Supreme Court."
"Change of Heart" 2005 WLNR 13319606 Bucks County Courier Times 8/21/05 (reprinted from Intelligencer 8/19/05)Editorial the author points out what should be obvious to everyone: the legislators who have had a change of heart and have returned the increased pay have done so for political reasons, not as a result of "soul searching."
"The legal battled against swag grab may not prevail" 2005 WLNR 13177231 Allentown Morning Call 8/21/05 This piece is about activist Gene Stilp, (plaintiff in lawsuit filed challenging the pay raise) yet the author admires his fervent opposition to the pay raise, while at the same time noting, "Anyone who reads the Pennsylvania Constitution can see it explicitly bans such salary increases, but the state Supreme Court, under Cappy's guidance, has been known to wink at such technicalities."
"Direct Democracy: Pennsylvanians Need the Power of Referendums to Check a Legislature Gone Astray, Says Mark Desantis 2005 WLNR 13158380 Pittsburgh Post-Gazette 8/21/05
The author of this editorial advocates a change to the state constitution in order to allow a referendum in instances such as the current pay raise fiasco.
"Should we oust all incumbents, or just the bums?" 2005 WLNR 13144917 Allentown Morning Call 8/20/05 In order for a legislator to deserve to keep his office, it might not be enough that he or she voted against the pay raise; they should be advocating fundamental changes in state government.
"2 more legislators turn down raises" 2005 WLNR 13374717 Intelligencer 8/18/05
An ever-evolving tally of who voted for the pay raise, who voted no, who accepted, who declined, who changed his or her mind, etc.
"Home Front" 2005 WLNR 12975994 Myrtle Beach Sun News 8/18/05
South Carolina's update on who is turning down early pay raises.
"Issues, but no replies" 2005 WLNR 12912527 Centre Daily Times 8/17/05
Governor Rendell has not answered many of the burning questions of his constituents, such as whether there should be an independent panel for the legislature's pay.
"Ignore party labels in next state election" 2005 WLNR 13032339 Allentown Morning Call 8/17/05 To the author of this editorial, the most important issue in the next election is how to oust incumbents, regardless of party affiliation.
"Gabig votes no on pay raise, but accepts it anyway" 2005 WLNR 13250334 Public Opinion 8/3/05 He voted against it, accepted it, and now wants to sponsor legislation to prohibit legislators from taking the pay raise.
"Don't accept lawmakers' salary grab" 2005 WLNR 12946737 Public Opinion 8/2/05
Public Opinion is taking a survey on how people would like to deal with the unconstitutional pay raise.
"State legislators must remember their mission" 2005 WLNR 14196909 Philadelphia Inquirer 9/9/05 also found at: 2005 WLNR 14188657 Citizens and members of the judiciary must be legislative watchdogs, because the pay raise fiasco is just one example of the larger problem of the General Assemble passing controversial legislation in the middle of the night.
"Do something about lawmakers' greed; don't just gripe 2005 WLNR 13952501
Wilkes-Barre Times Leader 9/5/05 Whether or not the legislators deserved a raise, they all need to be ousted for not faithfully following constitutionally mandated procedures
"Legislative Pay Raise: It's a Gas, Gas, Gas" 2005 WLNR 14012153 Pittsburgh Post-Gazette 9/4/05 The only way the state and its municipalities can maintain a reasonable budget is if the oversized legislature is downsized to stop hogging Pennsylvania's funds.
"Early raise to benefit select few the most: Six to collect extra $100,000 from 'unvouchered expenses'" 2005 WLNR 13523566 Centre Daily Times 8/28/05 Some senators stand to collect significant amounts in unvouchered expenses because they have more time left in their terms than others.
"Your Letters: Reject pay-raise ploy" 2005 WLNR 13524050 Centre Daily Times 8/28/05
Disdain for a legislator who voted against the raise but took it early nonetheless.
"More bucks, fewer seats?" 2005 WLNR 13542844 Pittsburgh Tribune Review 8/28/05
Several commentators, including Duquesne Law Professor Joseph Mistick, express their opinions on the possibilities of shrinking the legislature.
"Time to take action" 2005 WLNR 13502251 Connellsville Daily Courier 8/27/05
There should be provisions in Pennsylvania for initiatives and referendums. (posted 9/26/05)
Discovering gold on Rockview lands--Centre Daily Times, 8/20/05, criticizes Governor Ed Rendell's decision to give State-owned open space land to Penn State. Part of the criticism is that the grant violates Article I, section 27 of the Pennsylvania Constitution, which protects the public right to "public natural resources" and charges the State with their conservation. 2005 WLNR 13103736 (posted 9/26/05)
The media continued to give extensive coverage to the legislative pay raise and associated issues during the month of August. See, e.g., 2005 WLNR 12519964 (Valley Independent); 2005 WLNR 12427614 (Tribune-Review); 2005 WLNR 12427663 (Tribune-Review);2005 WLNR 12110014 (Centre Daily Times); 2005 WLNR 12121202 (Myrtle Beach Sun News); 2005 WLNR 12144720 (Tribune-Review); 2005 WLNR 12144841 (Valley Independent); 2005 WLNR 12082117 (Tribune-Review). On 8/27/2005, the Tribune Review published a Q&A on the pay raise between Bill Steigerwald and Duquesne Law School Professor Bruce Ledewitz. (posted 9/12/05)
It Takes an Education – Pittsburgh Post-Gazette ( 7/31/2005 ) - Vanessa Browne-Barbour and Ken Gormley, both Duquesne Law School faculty members, wrote this critique of Sen. Rick Santorum's (R-PA) assertion in his new book that there is no right public education in the United States. Browne-Barbour and Gormley note that Pennsylvania, along with many other states, have provided for public education in their constitutions, and our Founding Fathers considered formal education to be essential to our society, even though it was not specifically addressed in the United States Constitution. 2005 WLNR 12037331
There have been numerous news stories in various media about different aspects of the legislative pay raise. See below. For an example of some of the strong criticism of both the legislature and the courts, see Bill White of the Morning Call, 2005 WLNR 11574254. Some of the best reporting of the issue has been by Mark Scolforo of the Associated Press. See e.g., 2005 WLNR 11383470. It was Scolforo whose interview of Chief Justice Cappy, see Commentary section, may result in the recusal of the Chief Justice should a case concerning the pay raise reach the Pennsylvania Supreme Court. (posted 8/9/05)
Legislators defend quick pay raise--A.P., 7/15/2005, discusses the recently enacted pay raise in the Pennsylvania legislature, which takes effect prior to a new legislative term in apparent violation of Article II, section 8. The increase in salary takes the form of a temporary unvouchered expense account that becomes a salary increase once new legislative terms begin. Legislators defended the action on the basis of Consumer Party v. Commonwealth, 507 A2d 323 (Pa. 1986), which upheld similar expense accounts for half of the members of the State Senate in 1986. 2005 WLNR 11093232. Numerous other news stories dealt with aspects of the pay raise. See e.g., 2005 WLNR 11093539, 2005 WLNR 11003623.
Lawsuit against hate-crimes law dismissed--Mark Scolforo for the Bucks County Courier Times, 7/10/2005, reports on the unpublished decision by Commonwealth Court to dismiss a legislative process challenge to recent hate crimes legislation. The dismissal was based on a lack of standing. 2005 WLNR 10968639.
Fumo, Williams, Make Merit Selection Proposal--Asher Hawkins for the Legal Intelligencer, 6/27/2005, reports on a merit selection constitutional amendment proposal for Philadelphia Court of Common Pleas and Municipal Court judges to be introduced in the legislature. 6/27/2005 TLI 1.
Lawmakers Introduce 11 Bills, Including Damage Cap--John L. Kennedy for the Pennsylvania Law Weekly, 6/20/2005, reports on a proposed constitutional amendment to allow the legislature to pass a limit on non-economic damages. 28 PLW 613.
The Charitable Real Estate Tax Exemption 20 Years After HUP--Joseph T. Kelley III and Michael A. Riccio for the Legal Intelligencer, 6/20/2005, discusses the constitutional tax exemption for institutions of purely public charity in Article VIII, section 2(a)(v). The authors criticize the statement by the court in Community Options, Inc. v. Board of Property Assessment , 813 A.2d 680 (Pa. 2002) to the effect that the legislature lacks authority to clarify the constitutional standards for a charitable institution by legislation. 6/20/2005 TLI S4.
County moves to block city project--P.J. Reilly for the Intelligencer Journal (Lancaster, Pa.), 5/20/05, reports on a complaint filed by Lancaster County before the state Department of Community and Economic Development to block a development project by the City of Lancaster. The County claims that city guarantees of city loans amount to a loan of municipal credit to a private developer, in violation of Article IX, section 9 of the Pennsylvania Constitution. 2005 WLNR 8152701
PBA opposes bills allowing non-lawyer advocates in UC proceedings--Christopher Lilienthal for the Pennsylvania Law Weekly, 5/16/2005, reports that the Pennsylvania Bar Association's House of Delegates has voted to oppose legislation that would allow non-lawyers to represent parties in unemployment compensation hearings. William Carlucci, PBA President, says that the legislation raises constitutional questions relative to the power of the Pennsylvania Supreme Court to regulate the practice of law. 28 PLW 459. Carlucci's position was in turn criticized in the Allentown Morning Call on June 5, 2005: Anything to pare lawyers' profits is "unconstitutional", Paul Carpenter, 2005 WLNR 8975268.
Digests of Recent Opinions--Pennsylvania Law Weekly, 6/13/2005, reports on a ruling in Castellani v. Scranton Times, (C.P. Lackawanna June 3, 2005) in which a motion to compel discovery of an unnamed source was granted in a defamation action arising out of stories about a grand jury investigation. Judge Robert A. Mazzoni held that, "[b]ecause of the secrecy accorded grand jury proceedings, neither the Pennsylvania Shield Law nor the qualified reporter's privilege under the First Amendment protected the media defendant from divulging the identity of the confidential source of alleged defamatory information obtained from a grand jury investigation." The court relied in part, in its balancing of interests, on the right to reputation guaranteed in Article I, section 1 of the Pennsylvania Constitution. 28 PLW 580.
Another Lobbying Disclosure Law?--Sean Connolly, Pennsylvania Law Weekly, 6/13/2005, reports on legislative efforts to write and pass a new lobbying disclosure law after the 1998 law's invalidation by an equally divided Pennsylvania Supreme Court in Gmerek v. State Ethics Commission, 807 A.2d 812 (Pa. 2002). 28 PLW 572
Bail granted, then revoked for rapper--Theresa Conroy, Philadelphia Daily News, 6/23/2005: bail for murder defendant Cassidy, a rap artist, was granted but then later revoked on authority of Article I, section 14 of the Pennsylvania Constitution. 2005 WLNR 9902294
Criminal Practice Defenders Decry Child Video Testimony, Christopher Lilienthal, Pennsylvania Law Weekly, 5/30/2005, reports that, despite a constitutional amendment allowing prosecutors to use closed circuit television in certain child sex abuse cases, and despite the May 16, 2005 order of the Pennsylvania Supreme Court affirming the decision of the Commonwealth Court upholding the validity of the amendment, prosecutors have been reluctant to actually use the new procedure. 28 PLW 513.
Mayor Hopeful Committed Felony; Wrightsville Candidate Stephen D. Rambler Pleaded Guilty to An Extortion Charge in 1996, York Daily Record, May 12, 2005, YRKDR1 2005 WLNR 7535496, Caryl Clarke: The story raises the issue of whether a Republican candidate for Mayor of Wrightsville, Pennsylvania can run or serve under Article II, section 9 of the Pennsylvania Constitution. The candidate had been convicted of extortion in 1996.
Judge Kills Assessment Cap -- Wettick Says 4% Limit On Increases Would 'Exacerbate' Inaccuracies, Pittsburgh Post-Gazette, May 13, 2005, 2005 WLNR 7564023, Jerome L. Sherman: the Pittsburgh Post-Gazette, as well as other local media, reported the May 12, 2005 decision by Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas striking down the County property assessment cap as a violation of Article VIII, Section 1 of the Pennsylvania Constitution, which requires that all taxes be uniform.
County Sued Over Capped Assessment Increases, Pittsburgh Post-Gazette, April 19, 2005, 2005 WLNR 6080877, Jerome L. Sherman: story reports tax uniformity challenge filed by the Sto-Rox School District and an individual against Allegheny County's planned 4% property assessment increase cap.
State Shirks Duty to Fund Court System, Pittsburgh Post-Gazette, April 10, 2005, Joe Smydo: article describes the failure of the State Legislature to comply with a 1987 Pennsylvania Supreme Court decision requiring the State to assume all of the costs of local courts, which are currently funded in part by county governments.
Judge Gives Cianci's Argument 6 Months: The Councilman says Officials Should Have Known of his Record Before He Ran, Philadelphia Inquirer, April 7, 2005, Jeff Shields and Keith Herbert: article concerns action by District Attorney to remove Conshohocken Borough Councilman Peter Cianci under Article II, section 7 of the Pennsylvania Constitution. Judge Thomas Branca of Montgomery County Common Pleas Court ruled that any felony conviction is an "infamous crime" but gave the Councilman time to argue laches.
Public Ill Served by Pennsylvania Court Ruling on Media, Lancaster New Era, March 30, 2005, 2005 WLNR 5117820: article criticizes failure of Pennsylvania Supreme Court to recognize a neutral reporting privilege.
Candidates Face Legal Challenges, Pittsburgh Tribune Review, March 22, 2005, David M. Brown: Story reports on challenges to candidacy for re-election of Pittsburgh City Councilman Sala Udin, including a potential challenge under Article II, section 7, of the Pennsylvania Constitution.
Digests of Recent Opinions: Courts of Common Pleas, 3/14/2005 28 PLW 272: in action by legislator against media defendant, court could not compel discovery of House Minority Caucus Special Leadership Account because of Pennsylvania Constitution's Speech and Debate Clause. Court could dismiss any count in complaint defendant could not defend without such discovery. Court held, however, that there were no such counts.
Group Assails Late-Night Maneuvers That Yielded Gambling Law, 3/14/2005 28 PLW 262: Christopher Lilienthal: account of oral argument before Pennsylvania Supreme Court in case challenging the Pennsylvania gambling law.
Slots Lawsuit a Losing Hand?, Allentown Morning Call, A1, February 21, 2005: This article is an overview of the arguments that will go before the court challenging the new gambling statute.
Slot Machines and the Pennsylvania Constitution; State Supreme Court Must Decide: Did Legislature Bungle New Gaming Law?, Allentown Morning Call, A6, February 15, 2005: This is an op-ed piece in which the author expresses disdain for the legislature's behavior in passing the gaming law.
Known Felony Record May Lead to Politician's Ouster, All Things Considered, February 11, 2005, 2005 WL 62527160: reports on attempt by Montgomery County District Attorney Bruce Caster under Article II, section 7 to remove two-term borough councilman Pete Cianci because of an 11-year old drug conviction on his record. Story quotes Bruce Ledewitz, constitutional law expert at Duquesne University Law School. Article may be listened to in its entirety on NPR. You can try to access directly at http://www.npr.org/templates/story/story.php?storyID=4495823.
New Legislation Limits Rights to Zoning Appeals, The Legal Intelligencer, A6, February 7, 2005: This is a critique of recent legislation, passed by the legislature with some sleight-of-hand, and signed quickly by Governor Rendell. The legislation limits standing for zoning appeals, and will have an especially noticeable effect in Philadelphia, where civic groups have routinely had standing to appeal zoning decisions. At least one civic group, SCRUB, is considering a constitutional challenge to the bill.
Castor Targets Officials with Criminal Records, The Philadelphia Inquirer, January 27, 2005, 2005 WL 56975710: District Attorney Castor describes ongoing enforcement program by Montgomery County to enforce Article II, Section 7 of the Pennsylvania Constitution by removing local public officials who have criminal records.