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Wednesday, April 05, 2006

Courts - More on judges retention vote in Pennsylvania - pay raise question goes to Supreme Court

From the Dec. 28, 2005 ILB:

Here is the background: The Pennsylvania judicial retention vote in November turned on a "midnight pay raise" passed by the Pennsylvania legislature that included raises for the judges. The result was one Supreme Court justice being turned out of office last month via the 10-year "yes or no" retention ballot. After viewing those election results, the Pennsylvania General Assembly retreated last month and repealed the pay raise. There was speculation that a judge might sue and sure enough, * * * several judges filed suit to restore their pay hikes.
Yesterday, the case was argued before the Penn. Supreme Court. Here are quotes from a report from The Legal Intelligencer:
The wake of last year’s pay raise affair washed over Philadelphia today in the form of a two-and-half-hour oral argument session before the Pennsylvania Supreme Court involving three closely related cases.

Among the issues the justices will have to consider: whether a non-severability clause in a piece of legislation trumps a constitutional provision against diminution of judicial salaries, or vice versa; and whether a 1986 precedent allowing for unvouchered expenses by state legislators should be overruled.

All three appeals argued yesterday involve assertions that the manner in which last year’s two pay raise-related pieces of legislation were passed -- Act 44, which created the pay raise, and Act 72, which repealed it -- violated the state Constitution.

Stilp v. Commonwealth involves claims by a Dauphin County political activist that the passage of Act 44 violated, among other provisions, Article III Section 1’s “original purpose” clause.

The consolidated appeals in Brown v. Commonwealth and Herron v. Commonwealth stem from allegations by a number of common pleas judges that the repeal of their pay raises via Act 72 violated Article V Section 16(a), which allows for a decrease of the salaries of the state’s jurists only if the salaries of all other “salaried officers of the commonwealth” are likewise diminished. Such was not the case with Act 72, the judges have argued.

Chief Justice Ralph J. Cappy, who lobbied in Harrisburg for the pay raises on behalf of the state's judiciary and had vowed to recuse himself in any related actions, was not in the court’s City Hall hearing room yesterday morning.

From the Philadelphia Daily News:
t's unclear when the court will rule on the matter. A separate case challenging the pay raise is pending in federal court in Harrisburg.

Today's arguments - the first time the top court has heard legal challenges to a pay raise in two decades - come a month before the May primaries and could serve to keep the pay issue front and center until then. Voters in November knocked a sitting Supreme Court justice off the bench as a result of the populist uprising over the issue.

In July, the legislature passed a pay raise bill that raised base salaries for lawmakers by 16 percent, while also increasing pay for top administration officials and judges. After four months of intense public criticism, the legislature reversed itself and repealed the raises for everyone.

In a separate case that was also heard by the court today, a group of local judges asked justices to reinstate their raises.

They argued that a provision in the state constitution bars the salary of judges from decreasing unless all other "salaried officers" of the state receive similar cuts.

From yesterday's Morning Call, an editorial:
Today will be an interesting one for Harrisburg. The state Supreme Court will hear arguments on a series of cases stemming from the General Assembly's ill-fated pay grab last year. Meanwhile, U.S. District Court for the Middle District of Pennsylvania still has to hear arguments as to whether the state Supreme Court justices should be prevented from acting on these cases.

There's a lot at stake for average Pennsylvanians in the hearings, even though state lawmakers repealed the the pay raise affecting themselves and the state's judges in November. There are issues from both the state constitution and U.S. Constitution. There are questions regarding the integrity and fairness of the state Supreme Court. There is the question whether the public deserves to know how decisions are made regarding the spending of their tax dollars — before those tax dollars are spent.

This morning, the state Supreme Court has scheduled arguments on four cases that challenge both the constitutionality of the pay raise and its repeal. Citizen activist Gene Stilp has sued the state, Gov. Ed Rendell, state Treasurer Bob Casey Jr. and two legislative leaders, charging that they enacted the pay raise in violation of several provisions in the state constitution. This includes the fact that the action was taken at 2 a.m. July 7 without public notifice or debate. An opposing case filed by some judges who lost their pay raises maintains the repeal violated constitutional provisions protecting judicial salaries.

Meanwhile, in federal court, Common Cause of Pennsylvania has a petition asking that the Supreme Court be prevented from taking any action. Common Cause has some good arguments, not the least of which is that Supreme Court Chief Justice Ralph Cappy played a key role in the pay raise negotiations, and that the justices had a financial stake in the pay grab. The citizens' lobby argues that the justices ''actual pecuniary interest'' in deciding these cases violates Pennsylvania citizens' due process rights under the Fifth and 14th amendments to the U.S. Constitution.

Several months ago, Chief Justice Cappy recused himself from participating in any of the cases. He has admitted to being part of secret negotiations on the pay raise and called criticism of it ''knee-jerk,'' but significant political ramifications still linger from the pay-grab. The justices, who must be retained by voters every 10 years, saw one of their colleagues, Russell Nigro, kicked off the bench in November's election. The pay raise and the court's previous decisions to let lawmakers take more immediately as ''unvouchered expenses'' are issues that could haunt all of them.

Some local color from the Philadelphia Inquirer:
So unwieldy has the issue become that at one point yesterday Justice Michael Eakin described it as a "morass and quagmire."

It was standing room only at yesterday's hearing as journalists, lawyers and clerks crowded the Supreme Court courtroom in Philadelphia City Hall.

G. Terry Madonna, a political analyst at Franklin and Marshall College, said he could not remember a decision so eagerly anticipated by the public, which will have this issue on its mind when it votes for House and Senate candidates in next month's primary election.

"There is no question that the Supreme Court is under a microscope here," he said. "People are paying attention to this in a way that they don't normally for a case before the Supreme Court."

Before the court are a series of complex issues dealing with arcane constitutional provisions and the rules of lawmaking.

The court's decision could have broad ramifications in how a bill becomes a law in the future. * * *

The original bill dealt with the salary of the governor. Legislators took the measure, cut its original language, inserted the sweeping pay-raise provisions, and "slapped a new title on it," she said.

"How can we explain to a member of the public... that the legislative process is open and deliberative?"

Eakin wasn't necessarily convinced.

"Things aren't unconstitutional because people don't have confidence," he said. "They are unconstitutional because they violate the constitution."

John Krill, a lawyer representing Senate President Pro Tempore Robert Jubelirer (R., Blair) defended how the pay-raise legislation was handled.

The bill's original subject was the same in the end, Krill said, equating it to a beam of light. Sometimes, it's sharply focused; other times it's diffused. But it is still the same beam of light, he told the justices.

Whether the bill changed enough from its original purpose to render it unconstitutional "is the $64,000 question," Justice Max Baer said.

From the Patriot-News:
PHILADELPHIA - The controversial state officials' pay raise was repealed, but its legacy is still taking shape.

The issue has spawned at least five lawsuits, and the state Supreme Court heard two hours of argument in three of the cases yesterday.

Philadelphia Common Pleas Judge John W. Herron and a separate group of seven judges filed lawsuits that aim to reinstate pay raises for more than 1,000 judges, including the high-court justices.

The third lawsuit, by Harrisburg political activist Gene Stilp, challenges the constitutionality of how the law was passed and the legality of allowing lawmakers to collect the raises immediately as "unvouchered expenses" despite a constitutional ban on midterm raises. * * *

In a crowded courtroom, Stilp, joined by attorneys for state Treasurer Robert P. Casey Jr., called the since-repealed bill a "poster child" for legislative practices that violate the spirit, if not the letter, of the Pennsylvania Constitution.

"Things have gone terribly wrong with the legislative process," said Sally Ulrich, Casey's attorney. "We are re-experiencing a crisis in public confidence that we saw over 100 years ago" when current safeguards designed to block stealth legislation and encourage public input were added.

Thanks to How Appealing, based in Philadelphia, from which the ILB obtained links to all these stories, about an issue that has implications beyond Pennsylvania.

Roll Call's Louis Jacobson has a lengthy column today (subscription required) titled "Voter Anger Imperils Incumbents Up and Down the Pa. Ballot." A quote, parts of which may sound familiar to Hoosiers, other parts of which may indicate a less passive electorate in the Keystone State:

To many voters, the pay raise was a reminder of how their Legislature adheres to an old-school brand of politics in which arrogant powerbrokers feel unconstrained by public demands. Demonstrations sprang up and, bolstered by talk radio and Web logs, blossomed into a grass-roots movement.

"Once this thing started to get attention, it took off like a runaway train," said Bill Green, a Pittsburgh-based Republican consultant. Eventually, record numbers of candidates would file to run for the Legislature. In the face of mounting voter anger, more than two dozen legislators decided to retire. Some thought it would be preferable to fighting a bloody re-election campaign (and some stood to collect a generous, untaxed pension).

The column continues: "The first blood came unexpectedly: in a judicial retention election last November."

Posted by Marcia Oddi on April 5, 2006 03:30 PM
Posted to Courts in general