2012 Pennsylvania Supreme Court: One justice out; Saylor gains impact
Justices of the the Pennsylvania Supreme Court in 2011, top from left: Seamus P. McCaffery, Max Baer, Debra McCloskey Todd, Joan Orie Melvin and bottom, from left: Thomas G. Saylor, Chief Justice Ronald D. Castille, and J. Michael Eakin.
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While the most crippling blow to the Pennsylvania Supreme Court may have been the indictment of Justice Joan Orie Melvin on political corruption charges -- leaving the court at less than full strength and exposing it to the potential for even divisions -- the most far-reaching event of 2012 was much more incremental.
That event was the emergence of Justice Thomas G. Saylor, currently the senior associate justice, as an intellectual leader of the Supreme Court.
Previously thought of as "the loneliest justice" for his penchant for issuing solo concurrences or dissents, Justice Saylor saw himself writing more lead opinions for the court than ever. As of Dec. 28, he had written the lead opinion in 18 cases -- more than he wrote in 2011, when he wrote 14; in 2010, when he wrote 16; and in 2009, when he wrote 11.
The numerical increase doesn't tell the full story, though, as many of Justice Saylor's opinions set the tone for the court on some of the thorniest issues it encountered.
Part of that may be a function of experience, as the senior justice in the majority has first dibs on authoring the opinion for a majority he or she is part of. Whenever the chief justice is not part of the majority, in other words, Justice Saylor may choose to write the opinion himself.
But it may also be a sign that the one-time iconoclast has moved toward the center of the high court, not a bad place to be if he steps up, as he presumably will upon the retirement of Chief Justice Ronald D. Castille.
Justice Castille's main challenge in 2012, which will carry into 2013 and the foreseeable future, was to pilot a six-justice court that may be less able than usual to settle questions of law.
The most closely watched of those legal questions is whether the doctrine of strict liability in products cases will be significantly altered by adopting the Restatement (Third) of Torts, which would allow defendants to point to misuse of products by people who claim they've been injured by the products.
It's an issue on which the state Supreme Court has been like the Delphic oracle, offering little concrete guidance while its true leanings have often been speculated upon.
Since 2009, the 3rd U.S. Court of Appeals has predicted more often than not that Pennsylvania would move from the Restatement (Second) view of strict products liability to the modified view contained in the Restatement (Third), which includes a prominent opportunity for the consideration of the plaintiff's use of the allegedly defective product.
In the minority was U.S. District Judge John E. Jones of the Middle District of Pennsylvania, who ruled in July that the old Restatement (Second) would likely remain the law of the state. But his decision in Sikkelee v. Precision Airmotive was reversed by a 3rd Circuit panel just three months later.
As of now, though, the state Supreme Court does not seem to be pursuing with any haste an opportunity to decide the issue once and for all.
From seven to six
In May, Justice Orie Melvin was charged with using her Superior Court staff to perform political duties as she sought election to the state Supreme Court. She has denied the charges and promised a vigorous defense.
While Justice Orie Melvin was quickly suspended from the bench pending the outcome of the case against her, she continued to receive her salary.
For the public, the main implication of Justice Orie Melvin's suspension is the reduction of the Supreme Court from seven to six members.
The danger presented by the court's reduction in size is the possibility that a court may split 3-3, allowing a lower court opinion to stand but leaving the justices incapable of announcing a rule of law.
Justice Saylor's journey from the edge of the court's dialogue to the center is comparable in some ways to that of Justice John Paul Stevens on the U.S. Supreme Court, whose nickname was the "lone ranger" for his frequent forays into theories not embraced by his colleagues. In his last 15 years on the U.S. Supreme Court, Justice Stevens became one of the most influential justices.
In January 2012, Justice Saylor decided that even though the Philadelphia Parking Authority is a state agency, it did not have to promulgate rules governing taxi service in the city of Philadelphia with the assistance of the state Legislative Research Service under the Commonwealth Documents Law. In Germantown Cab v. Philadelphia Parking Authority, the justice reasoned that the PPA's "unique local focus" meant it did not have to go through the same procedures as other regulatory agencies.
In one of the most important decisions of the court's year, he discussed asbestos liability and the qualification for an expert opinion.
In May's Betz v. Pneumo Abex opinion, Justice Saylor wrote for the court to reject a plaintiff's theory that "each and every breath" taken of asbestos fiber contributes substantially to asbestos-related diseases such as mesothelioma. In so holding, he said an expert opinion stating just that would not withstand analysis under the Frye standard and could not be presented to a jury.
He said it would not be viable for the court to "indulge in a fiction" that any exposure, no matter how minimal, could be a substantial factor in causing an asbestos-related disease.
Justice Saylor's September opinion in Basile v. H&R Block brought to a close a long-running class action by ruling that a proposed class of hundreds of thousands of tax filers serviced by H&R Block could not use a class action to press claims that they were misled by the tax preparer's "Rapid Refund" program, which in reality was a short-term loan that had to be repaid upon the filer's receipt of a federal tax refund.
Justice Saylor reasoned that plaintiff counsel's assertion that H&R Block customers were "overmastered" in their acceptance of the terms of the program could not be litigated in the class action because the customers were so different in their level of education, business sophistication, rural or urban residence and other factors.
Two of the most intensely political issues a court can face -- voting rights and redistricting -- were the subject of legal battles before the Supreme Court in 2012, and promise to return in the new year.
The eyes of the nation converged on the state Supreme Court when, in September, it reversed a decision by Commonwealth Court Judge Robert Simpson and remanded the controversial voter ID law to him, expressing concern that the state would not be able to administrate the new requirement in a way that would not be suppressive of the vote in the state.
While refusing to strike down the measure, the justices' decision made it all but impossible for the law's central provision to be enforced at the Nov. 6 general election.
A four-justice majority in a per curiam opinion called on Judge Simpson to examine more closely whether the state had taken adequate steps -- for example, providing no-cost alternatives to common forms of ID such as drivers' licenses -- to make sure the ID law wouldn't have the effect of disenfranchising lawful voters. And it gave him two weeks to do it.
On remand, Judge Simpson said there was not enough time to properly implement the law's central requirement, delaying its impact until a future election. But this is an issue the justices are almost certain to see again, as the Commonwealth Court has scheduled hearings on enforcement of the requirement this summer.
The high court also made the unprecedented move of rejecting maps drawn by the state Legislative Reapportionment Commission, forcing the 2012 election to be conducted along lines drawn by a previous commission more than a decade ago.
In a 4-3 decision, it was Justice Castille who wrote for the majority, saying the petitioners seeking to throw out the maps had made a "concrete showing" that the commission's plan ran contrary to law, demonstrating the commission split counties, municipalities and wards when it was not "absolutely necessary."
Per the court's mandate, the commission submitted a new set of maps, but not without similar challenges being made to the justices, who have yet to decide upon the second round of appeals.
First Published January 7, 2013 12:00 am