Big shale ruling tops year for top court


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For the state Supreme Court, 2013 was a year seemingly spent under a pattern of repeating storm systems.

Joan Orie Melvin became the first state Supreme Court justice since Rolf R. Larsen in 1994 to be effectively jettisoned from the high court after a criminal conviction. Unlike Justice Larsen, who was impeached, Orie Melvin resigned voluntarily May 1, in the wake of a February jury verdict in the Allegheny County Court of Common Pleas to convict her on theft of services charges.

In June, media reports said another member of the court, Justice Seamus P. McCaffery, had become the subject of a federal investigation stemming from referral fees paid to Lise Rapaport, his wife and chief legal aide.

A spokesman for Justice McCaffery has called the suggestion of a federal probe "complete nonsense."

It also became an increasingly open secret that Justice McCaffery and Chief Justice Ronald D. Castille held each other in minimal regard. The chief justice was quoted as saying Justice McCaffery should "rethink his position" on the Supreme Court in light of the "distraction" created by the media reports of an investigation.

But at the end of the year, the justices stepped up to make legal and economic history, in a landmark ruling on oil and gas extraction.

On Dec. 19 in Robinson Township v. Commonwealth, four justices voted to strike down as unconstitutional a key provision of Act 13 that prevented local governments from imposing their own land use restrictions on oil and gas companies engaging in exploration and drilling.

Justice Castille -- elected as a Republican two decades ago -- broke nominal party lines and joined with the court's three Democrats in issuing the ruling, which reverberated throughout the energy industry and among environmental advocates. The two votes to uphold Act 13 came from Justices Thomas G. Saylor and J. Michael Eakin, each elected on the GOP line when they were elevated to the court.

Keeping house

The justices focused in a number of cases on law impacting the terms of their own service and the service of their colleagues on the state's lower courts.

In one ruling -- surprising perhaps because it directly impacts the working life of the justices -- the high court rejected an effort to abolish the mandatory retirement age for Pennsylvania judicial officials. The case, Driscoll v. Corbett, was issued June 17.

A unanimous Supreme Court, led by Justice Saylor, said that the framers of the state constitution did not envision "an immutable ability to continue in public service" as a basic right, turning aside arguments that forced retirement stripped members of the judiciary of their right to serve in office.

The justices also said that the extrajudicial activities of their colleagues could result in their being disciplined, if those activities brought disrepute to the office. That decision came in In re Carney on Oct. 30. The justices reversed a decision by the Court of Judicial Discipline declining to impose punishment on an Erie County magisterial district judge over a "road rage" incident in which he allegedly brandished a gun outside the window of his speeding car.

Magisterial District Judge Thomas Carney's act, the court ruled in an opinion written by Justice Castille, was "far more extreme, for purposes of assessing 'extreme conduct' in the context of bringing the judicial office into disrepute, than the CJD appreciated."

New blood

After Orie Melvin's departure, Republican Gov. Tom Corbett appointed Superior Court President Judge Correale F. Stevens to serve until a new justice could be elected in 2015.

Justice Stevens sat for his first argument session in September, and issued his first opinion in December. In Commonwealth v. Ramos, Justice Stevens, one of three former district attorneys on the Supreme Court, upheld a five-year sentence for a man convicted on drug charges.

Justices Castille and Max Baer spent $300,000 in their successful campaigns for retention to the high court. In a climate dominated by bad news the two left nothing to chance even though no significant anti-retention efforts gained traction during the election campaign.

To be determined

By the end of the year, the state Supreme Court appeared likely to provide an answer to a question that federal courts in Pennsylvania have been pressing for quite some time: whether state law should adopt the Restatement (Third) of Torts in products liability cases. Under the Restatement (Third), the door would be opened to evidence of the plaintiff's usage of an allegedly defective product. Plaintiffs lawyers argue that the approach would abrogate the doctrine of strict liability in products cases.

In September, the state Supreme Court considered the balance of power between it and the Court of Judicial Discipline in cases of misconduct by judges. The chief counsel to the Judicial Conduct Board said that the Court of Judicial Discipline, which was set up by constitutional amendment to handle allegations of judicial misconduct, had exclusive authority to suspend judges on an interim basis. But Justice Baer said there was no specific grant of exclusive authority to the Court of Judicial Discipline, and Justice Castille stressed that the state constitution makes the Supreme Court the superintendent of all state courts in Pennsylvania.

Challenges to Pennsylvania's ban on same-sex marriage are proceeding on two tracks -- one in federal court and the other in the state courts. The state court case arose when the Corbett administration secured a writ of mandamus to stop Montgomery County Register of Wills D. Bruce Hanes from issuing marriage licenses without regard to the gender of the couples.

Mr. Hanes responded by asking the high court to restore his discretion to issue marriage licenses to same-sex couples, arguing that the Commonwealth Court order was fatally flawed in that it did not consider the constitutionality of the state's Defense of Marriage Act. How -- and whether -- the justices deal with the petition could set up a race with the federal court case, set to begin in June, on which court will speak first on the hot-button social issue.


Michael A. Riccardi can be contacted at 215-557-2319 or at mriccardi@alm.com. Follow him on Twitter @MRiccardiTLI. To read more articles like this, visit www.thelegalintelligencer.com.

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