Has Pa. high court lost deciding vote with Justice Orie Melvin?
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A scan of state Supreme Court opinions since Justice Joan Orie Melvin joined the bench in 2010 shows a number of cases in which she was, or would have been, the deciding vote on a deeply divided bench.
The types of matters varied widely, including criminal, tax, products liability and negligent infliction of emotional distress cases, and in several of them Justice Melvin was either part of a 4-3 majority or absent from a 3-3 deadlock.
Now that Justice Melvin has been suspended from all judicial duties, the number of high court stalemates that simply affirm the lower court and have no precedential value could spike, attorneys and legal observers said.
Similarly, some also wondered whether allocatur grants -- which require at least three votes -- may become fewer and further between.
Justice Melvin was suspended by her fellow justices May 18 after being charged in Allegheny County with nine criminal counts, alleging she used legislative and judicial staff to perform campaign work.
Without Justice Melvin, a Republican, the Supreme Court is now left with a six-justice bench split evenly along party lines.
Whether the court will appoint an interim replacement for Justice Melvin and the issue of how the court will handle cases in which Justice Melvin has already heard arguments, and may have been the deciding vote, remain "unresolved and under consideration by the court," said Art Heinz, a spokesman for the Administrative Office of Pennsylvania Courts.
Alan M. Feldman, of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in Philadelphia, said 3-3 deadlocks are antithetical to the high court's purpose.
"You go to the Supreme Court to get finality, to get the last word on any given issue," he said.
The fact is that Justice Melvin's absence has resulted in such standoffs in the past.
In one of the most high-profile decisions from the court last year -- Toney v. Chester County Hospital -- Justice Melvin recused herself because she sat on the Superior Court panel when it issued its opinion in the case in 2008.
Justice Melvin's vote on the Supreme Court would have been the deciding one in a case where 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 born with birth defects.
The opinion of the trio of justices, which let stand the state Superior Court's ruling, would allow claims for NIED stemming from breaches of contract or fiduciary duty without the long-standing prerequisite of a "physical impact."
Justice Melvin had dissented from the majority when the case was before the Superior Court.
Research also shows that in a number of recent cases decided by the full bench, including Justice Melvin, the justices were sharply divided.
In a recent products liability case, Justice Melvin rounded out the majority in a deeply split Supreme Court, which ruled that a court conducting a risk-utility analysis of an allegedly defective product with more than one intended use should consider all of those uses, rather than just the one that allegedly resulted in harm.
But while Justice Melvin either was or would have been the tiebreaker in a number of close decisions, there were other sharply divided rulings in which she sided with the minority, an indication that the dissenting voice in some cases could be weakened in her absence.
For example, Justice Melvin, along with Thomas G. Saylor and Chief Justice Ronald D. Castille, dissented in a case in which the majority refused to yield to the state Legislature in defining a public charity for the purpose of real estate tax exemptions.
The case pitted the seminal 1985 decision in Hospital Utilization Project v. Commonwealth against the General Assembly's Act 55, and garnered a host of amicus activity. Justice J. Michael Eakin wrote a 4-3 majority decision that insisted its own jurisprudence governed the constitutional phrase "purely public charity."
First Published June 4, 2012 12:00 am