In 1994, I wrote a law review article that asked, "What is Wrong with the Pennsylvania Supreme Court?" I was writing about a court that was mired in scandal and institutionally out of control. Unfortunately, 20 years later the Pennsylvania Supreme Court is still mired in scandal and out of control.
Some of the scandals on the court are well-known. Justice Joan Orie Melvin submitted a letter of resignation last week in light of her criminal convictions for theft and abuse of office. Justice Orie Melvin's situation is particularly poignant since she was elected to the court as a reformer in light of public outrage over the justices' role in a dead-of-night pay raise for themselves and legislators as well as the failure of the court's oversight in the juvenile court scandal in Luzerne County. That scandal, you may recall, involved two judges getting kickbacks for sending juveniles to for-profit detention facilities.
Over the past couple of months there also have been newspaper reports that the wife of Justice Seamus McCaffery received large referral fees from Philadelphia law firms with cases before him, including one fee for more than $800,000, at a time when she was serving as a judicial aide in his office and was barred by court personnel rules from the practice of law. These actions could result in both bar and judicial discipline and cast a further cloud over the court.
But much of the public is probably unaware that the allegations against Justice McCaffery emerged from a reported feud between Justice McCaffery and Chief Justice Ronald Castille. Chief Justice Castille recently commissioned and made public an investigative report into wrongdoing on Philadelphia's Traffic Court that included an allegation that Justice McCaffery had attempted to fix a traffic ticket for his wife.
Chief Justice Castille has also been the subject of criticism. In 2008, he hired an attorney to represent the courts in the building of the Philadelphia Family Court Center. That attorney then became a partner in the project with the developer. The family courthouse project has since been canceled and reports say the FBI has opened an investigation.
At the root of all of these scandals is a court without institutional checks. Because the court claims to be entirely independent, it has become a law unto itself. Both Justices Orie Melvin and McCaffery engaged in gross nepotism in staffing their offices. Justice Orie Melvin hired her sister and Justice McCaffery hired his wife. This was possible because the court refuses to be bound by personnel regulations and ethics legislation that apply elsewhere in Pennsylvania state government.
Similarly, Chief Justice Castille could hire any lawyer he wanted, for any purposes he chose and could pay him with public money without oversight.
Even a direct attempt by the voters to rein in the court has been ignored by the justices. In 1993, spurred by an earlier round of judicial scandals, the voters adopted a constitutional amendment creating a Court of Judicial Discipline that would be, at least in part, independent of the Pennsylvania Supreme Court. The voters gave this court discretion to decide whether a judge charged with a crime should be temporarily suspended. Yet, when criminal charges were brought against Justice Orie Melvin, the justices acted on their own to suspend her (with pay) as they had 20 years before to suspend Justice Rolf Larsen when he faced criminal charges.
There is not a shred of support in the text of the state constitution to support such actions. Clearly, when the people have given the suspension power to a body intentionally made independent of the justices, that power cannot be shared. Fortunately, the Court of Judicial Discipline ultimately also suspended Justice Orie Melvin, without pay. It is to be hoped that its decision will preclude any future suspensions by the court itself.
The most bizarre assertion of power by the justices has been the repeated claim that the court has authority to appoint an interim justice. The justices did exactly that in 1994, "assigning" senior judge Frank Montemuro to the Pennsylvania Supreme Court to replace suspended Justice Larsen. In assuming the power to appoint its own membership, the court misused a housekeeping provision in the constitution that allows the court to assign senior judges to temporary judicial service. Applying this power where it was never intended, the justices ignored the obvious due process violation created by giving a majority of the justices the power to remove an assigned justice whenever his vote displeased them.
At least the selection of Judge Montemuro was not arbitrary. He had been serving on the court for two years by formal gubernatorial appointment upon the death of Justice James McDermott. In contrast, when Chief Justice Castille publicly insisted on the day that Justice Orie Melvin filed her letter of resignation that the court did not need to wait for the governor to replace her, he was asserting the power simply to ignore the constitutional process of interim appointment.
Given the continuing scandals and arrogance of the Pennsylvania Supreme Court, it is not surprising that four former governors have called for a merit-selection process and the appointment, rather than the election, of Pennsylvania's appellate judges. I don't know if that change would cure what's wrong with the Pennsylvania Supreme Court. But recent events certainly have reinforced the fact that change is needed.
Bruce Ledewitz is professor of law and co-director of the Pennsylvania Constitution website at the Duquesne University School of Law.