Joan Orie Melvin's absence may hamstring Supreme Court cases
Joan Orie Melvin is the second sitting state Supreme Court justice in Pennsylvania to be criminally prosecuted, and her case has implications for the court in the coming months.
Justice Melvin is accused of using her judicial staff to campaign for the high court in both 2003 and 2009. The nine counts, filed Friday, include theft of services, official oppression, criminal conspiracy, criminal solicitation and misapplication of entrusted property.
She denies the allegations and said that the charges are politically motivated because of her family's history with that of Allegheny County District Attorney Stephen A. Zappala Jr.
The prosecutor denies any improper motive.
On Friday, as charges were filed, Justice Melvin said she was voluntarily recusing herself from the court; that was swiftly followed by notice from her fellow justices that she was suspended.
The move, which reduces the court to six jurists, changes the dynamic of the bench, which had a 4-3 Republican edge before Justice Melvin's removal.
The 3-3 split along partisan and ideological lines could cause trouble for legal practitioners in the state, said Bruce Ledewitz, a Pennsylvania Supreme Court scholar who teaches at Duquesne University School of Law.
There will be no decisions from the court of precedential value in the interim because there likely will be no majority opinions, he said.
"You cannot move the law forward 3-3," he said. "Its major job is not to decide cases, it's to decide law, and that's what it's hamstrung from doing if it's divided 3-3."
Issues of law that come before the Supreme Court from the lower courts cannot be reversed in a 3-3 decision, although those same lower court opinions can be affirmed with that split.
"We've now made it a little easier to execute people," Mr. Ledewitz said.
Although some commended Justice Melvin for choosing to step down when she was informed that a grand jury presentment had been issued, Mr. Ledewitz did not.
"It's ludicrous what she's done," he said. "It's like falling out of an airplane and saying 'I volunteer to hit the ground.'"
Instead, he continued, "her voluntarily stepping down does not allow the replacement machinery to be put into effect. Only her [resignation] would allow the court to replace her."
Art Heinz, a spokesman for the state Supreme Court, said he believes that it's possible the court could reassign a senior judge on the Superior Court to hear cases temporarily, but that no decision has yet been made.
Mr. Ledewitz said there are no written rules permitting that, although the court went through a similar situation once before.
The last sitting Supreme Court justice to be charged was Rolf Larsen, whose case was also prosecuted by then-first deputy attorney general Lawrence Claus, who is now an assistant district attorney and is trying the case against Justice Melvin.
Mr. Larsen was charged in October 1993 with 27 counts that alleged he had his staff obtain psychotropic medications for him to hide a lengthy fight against depression and anxiety.
Six months later, Mr. Larsen was convicted on two counts of conspiracy.
He was sentenced to two years probation but also removed from the high court.
Before Mr. Larsen was charged, it was expected that Frank J. Montemuro Jr., who had been appointed to the state Supreme Court in November 1992 to replace a justice who had died, would likely step down.
However, when Mr. Larsen was suspended, Justice Montemuro was appointed by the court to stay on in a senior judge status -- a role he kept until 1996.
Appointing a senior judge to the court with no mechanism in place to permit that could open the court up to possible litigation, Mr. Ledewitz said.
Moreover, he continued, in the Larsen replacement, Justice Montemuro, who died in March, had already been appointed by the governor and confirmed by the Senate to sit on the court.
"It didn't seem like a judicial overreach to keep him," Mr. Ledewitz said.
If the current court remains with six jurists, he believes the impact will likely be felt by attorneys and other judges, but not by the public.
Mr. Ledewitz, who previously called for Justice Melvin to step down in December when she was identified as a target of the grand jury, reiterated his plea, urging her to "put the interests of the people and the institution of the Pennsylvania Supreme Court before her own."
If she is acquitted at trial, he said, she could run in a special election.
"She could run again as the victim of a partisan, political vendetta," he said. "It would be a wonderful saga.
"I'm not saying she's guilty or anything, I'm saying she's having a terrible effect on the court."
For now, Mr. Ledewitz believes that any cases that have already been decided with Justice Melvin on the panel will continue through the pipeline, provided she is not the person assigned to write the opinion.
He estimates that she would currently have less than a half-dozen cases like that assigned to her.
"I'm not sure this will be that disruptive to the court for cases that have already taken place," Mr. Ledewitz said. "I think the greatest disruption will be going forward."
First Published May 20, 2012 12:00 am