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Raises still resonate in state high court race
Tuesday, May 08, 2007

Two years after voter rebellion over a midnight pay raise spilled over onto the ballot for Pennsylvania's high court -- resulting in the ouster of one incumbent and the narrow retention of a second -- the contests for two open seats have stayed low-key.

Yet echoes of that pay raise, and the current Supreme Court's ruling that the portion of it going to judges could not be rescinded the way the increases to legislative salaries were, remain a looming shadow. One of the two openings on the Supreme Court, after all, was created in November 2005 when voters rejected incumbent Justice Russell Nigro for retention.

Four Democrats and three Republicans are seeking two open seats on the Pennsylvania Supreme Court.

Faced with a raft of questions about law, procedure and background, the seven Supreme Court hopefuls found themselves juggling questions such as one posed by the Legal Intelligencer, Philadelphia's law newspaper, asking which side got it right: the Supreme Court majority that held the judicial raises as constitutional, or the minority who didn't.

As in years past, party endorsements and rankings by the Pennsylvania Bar Association's Judicial Evaluation Commission have played key roles in positioning candidates in contests that draw little attention and often turn on a candidate's geographical base.

On the Democratic side of the Supreme Court race, three easterners and one Western Pennsylvanian are in the running for that party's two nominations.

Debra McCloskey Todd, 49, currently a member of the state's Superior Court, is among those seeking a spot. She resides in Butler County and, prior to election to Superior Court in 1999, was in private legal practice and had served as counsel for U.S. Steel Corp.

In 1993 she was one of five attorneys short-listed for one of two vacancies on the federal bench, but the appointments went to Judges Donetta Ambrose and Gary Lancaster.

"After 25 years in the law, both as an attorney and as an appellate judge, I have learned much, and I am prepared to learn more," Judge Todd wrote in answering a questionnaire from the bar association.

Asked about the judicial pay raises by the Legal Intelligencer, Judge Todd said the majority opinion "constitutes the law of the land and expresses a sound constitutional analysis." That said, she said she disliked the way the raise was passed and said she gave hers back.

Another Democratic hopeful, Seamus Patrick McCaffery, 56, declined to answer the same questionnaire by the Legal Intelligencer, saying they would require him to express views that could compromise his impartiality on the bench.

A native of Belfast, Northern Ireland, he is a former Philadelphia police officer and currently a member of Superior Court. He gained attention in the mid-1990s when he opened a booking court inside Veterans Stadium to process people arrested for rowdy behavior during Philadelphia Eagles games.

In answering the bar association's questionnaire, he noted his endorsement by the Pennsylvania Democratic Committee and his citation by The Philadelphia Inquirer and the Daily News as a "quality of life judge" for his efforts to combat graffiti.

One of the more surprising revelations in the bar association's questionnaire answers came from Philadelphia Common Pleas Judge Willis W. Berry Jr., the third of the quartet of Democratic hopefuls for the high court.

Asked a routine question -- whether he was the subject of any ongoing federal, state or local investigation for possible violation of a criminal statute -- he indicated that he was.

"There is an ongoing investigation regarding a car I purchased on eBay a couple years ago," he said. On the preceding question, about whether he had ever been arrested, he mentioned three arrests -- two of which had no charges -- and a theft charge while attending Penn State "but it was dropped."

Answering the Legal Intelligencer's question on the pay raise, Judge Berry was equally forthcoming: "I wanted the raise and was glad to get it," although he complained the way it was passed was "slimy."

The fourth Democrat also is a Philadelphia Common Pleas Judge, C. Darnell Jones II, who has worked extensively in criminal law where he has specialized in handling capital cases. He declined to answer the pay raise question, saying he was not permitted to do so because "related issues are pending or will be pending before the Supreme Court of Pennsylvania."

One the Republican side of the ballot, one candidate alone, Michael Krancer, a former Environmental Hearing Board judge from Philadelphia, gave the pay raise question a thorough examination.

He gave the paper 11 paragraphs of constitutional analysis that, in the end, disagreed with the high court's ruling that, in essence, allowed the judicial portion of the pay raise by negating a "non-severability" clause in the law that enacted the raise. That clause would have meant that if the Legislature got no raise, neither would the judiciary. The high court ruled the non-severability portion unconstitutional -- thus allowing the judicial raises to stay. Mr. Krancer viewed that position as implausible.

Two other candidates, Superior Court Judge Maureen Lally-Green of Cranberry and Philadelphia Common Pleas Judge Paul P. Panepinto, ducked the question of the pay raise altogether.

Judge Lally-Green said the courts "are often called upon to decide cases that are difficult or unpopular" while expressing no view on the court's decision. Judge Panepinto said that as a lower court judge, it would be inappropriate for him to pass judgment on a higher court.

First published on May 7, 2007 at 11:00 pm
Dennis B. Roddy may be reached at droddy@post-gazette.com or 412-263-1965.
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