Justice Joan Orie Melvin's absence means more 3-3 splits on Pa. Supreme Court

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When Justice Joan Orie Melvin was suspended from the bench in the wake of criminal charges in last May, several attorneys and court watchers expressed concern that her absence would result in more 3-3 splits and possibly a less productive state Supreme Court.

Eight months later, as Justice Orie Melvin fights for her professional life in an Allegheny County trial court, an examination of the high court's output during her suspension shows that while the justices' productivity has not significantly decreased, a lack of participation by Justice Orie Melvin has indeed led to a number of 3-3 stalemates.

However, despite the fact that Justice Orie Melvin's absence leaves the bench with three Republicans and three Democrats, the 3-3 splits over the past few months have not always occurred along party lines.

A search of cases on the Administrative Office for Pennsylvania Courts' website shows that the Supreme Court issued full opinions in 59 cases during the eight-month period between May 21, 2012 -- the first business day following Justice Orie Melvin's suspension -- and Jan. 21.

During the same eight-month period between May 21, 2011, and Jan. 21, 2012, the court issued full opinions in 67 cases. Justice Orie Melvin led the majority in 10 of those cases.

According to statistics provided by the AOPC, the Supreme Court issued full opinions in 129 cases in 2011 and 117 in 2012.

However, the fear many had regarding a higher rate of 3-3 deadlocks -- which translate into affirmances of lower court rulings -- has proven warranted, at least to a minor extent.

As of Jan. 21, the court had deadlocked in three cases -- 5 percent of its total adjudications -- since Justice Orie Melvin's suspension.

That said, political ideology does not appear to have dictated those splits.

The first post-suspension deadlock came in July, when the court issued a 3-3 order without comment 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 next deadlock occurred less than a month later.

In Allstate Life Insurance v. Commonwealth, the justices were split down the middle on the issue of whether Pennsylvania insurance companies may recoup tax credits against fixed-premium annuity assessments they've paid to the Pennsylvania Life and Health Insurance Guaranty Association.

The per curiam order let stand a Commonwealth Court ruling in the insurers' favor.

The three justices in support of affirming the Commonwealth Court, in a 10-page opinion penned by Justice J. Michael Eakin, said a statutory construction analysis of the act reveals "a disparity between what the statute says is its desired result and a flaw in the methodology that would prevent accomplishment of that result."

Chief Justice Ronald D. Castille and Justice Seamus P. McCaffery joined Justice Eakin.

It wasn't only civil matters the justices were unable to agree on.

In September, the court reached another 3-3 impasse in Commonwealth v. Gehris, letting stand a Superior Court ruling requiring lifetime sex-offender registration under Megan's Law in cases in which two or more of the "minor" offenses, which individually carry a 10-year registration requirement, are committed during a single nonviolent act of criminal conduct.

The justices in favor of affirming the lower court -- Justices Todd, Eakin and McCaffery -- argued that while public policy considerations might suggest otherwise, the clear and unambiguous language of the statute required such a finding.

The justices in favor of reversing the lower court -- Justuces Castille, Saylor and Baer -- argued that the defendant should be subject to only the 10-year registration requirement.

Mr. Hare said the perception in the legal community at the start of Justice Orie Melvin's suspension was that these 3-3 splits would be even more common and more clearly defined by political ideology than they have been thus far.

"They have seemed to, when possible, render majority decisions that don't break along party lines," he said.

Justice Orie Melvin was a "swing vote," even before her suspension from the bench.

A look back at all of the cases that have come before the Supreme Court since Justice Orie Melvin joined the bench in 2010 shows that the justices reached 3-3 splits in three other cases prior to her suspension.

In each, Justice Orie Melvin would have been the tiebreaker, but was forced to recuse because she had sat on the lower court panel that had previously ruled on the case.

Perhaps the most high-profile of those cases was Toney v. Chester County Hospital, in which the lead justices said a mother may have a cause of action for negligent infliction of emotional distress after a doctor interpreted her ultrasound during pregnancy as normal and her child was subsequently born with birth defects.

It remains to be seen how the court will handle the several high-profile cases currently on its docket involving such politically charged topics as fracking and legislative redistricting, but Mr. Hare said he appreciates the effort the justices have made thus far to avoid locking political horns.

"It looks bad for courts to split along party lines," he said. "It makes the court look more political than it is."


Zack Needles: zneedles@alm.com or 215-557-2493. To read more articles like this, visit www.thelegalintelligencer.com.


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