Pennsylvania Supreme Court sees first 3-3 split since Melvin's suspension

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The state Supreme Court has split evenly for the first time since Justice Joan Orie Melvin was suspended in the wake of criminal charges.

The high court issued its 3-3 order without comment earlier this month in the case of Hetherington v. Rogers, a dispute out of Schuylkill County over the removal of eight members of a local school board, stemming from the way the board handled the appointment of a new district superintendent.

The justices' split order lets stand a split decision of the Commonwealth Court, whose 15-page majority opinion penned by Senior Judge Rochelle S. Friedman came over an equally long dissenting opinion from Judge Mary Hannah Leavitt in September 2010.

The Commonwealth Court, in turn, had affirmed the decision of Schuylkill County Common Pleas Judge Michael D. Stine.

Judge Stine had removed the board members from the North Schuylkill School District in 2009 after a group of citizens filed a petition taking issue with the board's choice for acting superintendent -- its own solicitor, Mark Semanchik -- the year before.

The state Department of Education rejected three mandate-waiver applications that the board filed on Mr. Semanchik's behalf in order for him to eschew eligibility requirements that he was missing, according to court records.

The board approached Mr. Semanchik about the job, according to court documents, rather than the other way around. But the Commonwealth Court, in affirming the trial court, ultimately decided there was a conflict of interest because Mr. Semanchik's role as solicitor meant he advised the board on major decisions -- such as the very superintendent job for which he was being considered.

As the trial court put it: "Attorney Semanchik has placed himself in a position where he is giving himself and voting members of the school board advice in a matter involving his own personal interests."

An attorney for several of the former board members said there was nothing in the record to show that Mr. Semanchik was doing "anything but a good job," adding that the petitioners were motivated by the board's decision to close an area elementary school.

According to Victor P. Stabile of Dilworth Paxson, several of the petitioners were affected by the board's prior decision to close Ringtown Elementary School. He said the case now means that someone "can be removed from a school board and barred from public office for five years because some people don't like your decisions."

Counsel for the petitioners, Ashland, Pa., attorney Lloyd R. Hampton of Hampton & Hampton, was not available for comment.

Mr. Stabile said the Commonwealth Court's decision, now left to stand, allows citizens to take up disputes with their school boards in state courtrooms.

"This decision opens the door to make these kinds of challenges," he said. "What they can't get at the ballot box, they will now try and get through the courts."

Mr. Stabile said it wouldn't take more than a "quick canvassing" of state school districts to show the amount of discord Pennsylvania residents have with their respective districts.

Calling the July 12 split "disheartening," he added: "I can't even explain to my clients what happened or who did what."

As for Justice Melvin, Mr. Stabile said the justice asked a number of questions at oral argument. But the attorney would not go as far as to say which way the court would have gone with her vote.

"There would have been a decision one way or the other," Mr. Stabile said, had Justice Melvin remained on the bench to participate in the decision of the case. "I would not be so presumptuous as to guess which way she would have gone."

Michael D. Kristofco of Blue Bell, Pa., firm Wisler Pearlstine, who also represented a board member, said the deadlock left school boards without a "clear pronouncement" from the high court as to the standard to which they would be held accountable.

Stuart Knade, chief counsel of the Pennsylvania School Boards Association, filed an amicus brief for the PSBA on behalf of the ex-board members.

Mr. Knade said the PSBA argued there essentially ought to have been "an abandonment of office" in order for the court to order removal of board members.

"Our main problem was the suggestion in the Commonwealth Court decision that the school district has to hire the first certified person in arm's reach," Mr. Knade said.

He agreed the petitioners were litigating the superintendent appointment because of the board's closing of the Ringtown Elementary School. "I think of it as a school-closing case," Mr. Knade said.

So how did the issue of who may be appointed for acting superintendent get before the intermediate appellate court?

"When people are looking to beat you up, they will club you with whatever sticks you leave laying around," Mr. Knade said, noting the superintendent issue was, on its own, being followed. It is not common practice for a school board to go to its solicitor for such a role.

Howard J. Bashman, who writes a law column for the Intelligencer, said the case highlights the problem with having an even-justice court.

That said, the court is handling its deadlocks correctly. An evenly divided court letting stand the intermediate court's decision, he said, is more proper than stranding the case in a holding pattern.

legalnews

Ben Present: bpresent@alm.com or 215-557-2315.


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