Judge rejects calls to resign

Posted: May 21, 2012

HARRISBURG — The document prosecutors filed Friday is 75 pages long. But it boils down to a striking accusation:

That a sitting judge effectively stole her way onto Pennsylvania’s highest court.

So reads the presentment filed by the Allegheny County district attorney, charging state Supreme Court Justice Joan Orie Melvin with directing and condoning the use of taxpayer-funded staff to fuel her 2009 campaign for a seat on the court.

No sooner were the charges announced than the court moved to strip Melvin of her judicial duties. That means she is effectively suspended, but will still receive her $195,309 annual salary as well as benefits.

Melvin, 56, says she is innocent and won’t resign.

That raises uneasy questions for the state’s most powerful bench.

Legal experts say Melvin’s suspension could render the seven-member court deadlocked and unable to rule on critical legal questions. And that, in turn, is already fueling calls for her resignation.

After entering a not-guilty plea Friday, Melvin, a Republican, called the charges “politically motivated.” Her supporters contend Allegheny County District Attorney Stephen A. Zappala Jr. — a Democrat and son of a former state Supreme Court justice — has it in for her.

“The voters overwhelmingly sent me to the Supreme Court,” Melvin said, “and I will not resign because of these politically motivated charges.”

This much is clear: The charges have etched another deep, disturbing mark on the high court’s reputation, which has periodically been tarnished by controversy and scandal in recent decades.

The case has also renewed calls for changing how appellate judges are picked in Pennsylvania — from a system that has them campaign and raise money to one where they are recommended, based on merit, for appointment by a governor.

“Judicial elections are designed to pick the best campaigners and fund-raisers,” said Lynn A. Marks, executive director of Pennsylvanians for Modern Courts, a statewide organization. “We need a system that is designed to get the most qualified, fair, and impartial judges on the bench.”

When Melvin, then a Superior Court judge, successfully ran for the Supreme Court in 2009, she campaigned as a reformer. And the race was particularly hard-fought: The winner would tip the balance between three Democrats and three Republicans on the court.

Judicially speaking, of course, the justices aren’t supposed to let party loyalty figure in decisions. Politically speaking, Melvin’s win gave the GOP a 4-3 edge.

Her suspension not only leaves the court split evenly between Democrats and Republicans; it may lead to 3-3 votes instead of majority decisions.

The problem, said Duquesne University law professor Bruce Ledewitz, is that a 3-3 decision merely affirms a lower court’s ruling — while not allowing the justices to opine and break new ground on major legal questions.

“This is a court of last decision — it exists to decide legal issues,” Ledewitz said. “That is why it is particularly troubling that she is not resigning.”

Although the court has stripped Melvin of her duties, it cannot force her to quit, said Art Heinz, spokesman for the Administrative Office of Pennsylvania Courts.

Heinz said the court could, in the interim, bring in a senior judge — generally someone past the mandatory retirement age of 70 — to assist with the caseload.

But only if Melvin resigns would there be a formal vacancy, allowing Gov. Corbett to nominate a replacement. The state Senate would then have to confirm that choice by a two-thirds majority.

Separately late Friday, the state Judicial Conduct Board said it would file charges against Melvin. That could lead to sanctions against her, but only if she is found to have violated judicial ethics.

“She should resign,” said Eric Epstein, founder of the self-styled reform group Rock the Capital. “Judges are no longer above the law or below the radar.”

It is not as if there is much precedent in these matters.

The last time a Supreme Court justice became embroiled in legal troubles was 1993, when the state Attorney General’s Office charged then-Justice Rolf Larsen with conspiring to obtain antianxiety drugs through prescriptions written in the names of court employees.

After he was convicted, Larsen was impeached by the legislature and eventually removed from the court.

The legislature has the power, under the state constitution, to launch impeachment proceedings. But as the Larsen drama demonstrated, such proceedings are long and labored: The House must vote on whether to approve articles of impeachment. The Senate then essentially acts as a jury, voting on whether the accused should be convicted and removed from judicial office.

A Melvin impeachment would include this twist: Her sister, Jane Orie, remains a state senator, despite her March conviction on charges similar to those filed against Melvin.

Steve Miskin, spokesman for House Majority Leader Mike Turzai (R., Allegheny), said Friday that no one is talking of impeaching Melvin.

“You are innocent,” Miskin said, “until you are proven guilty without a doubt in this fair land of ours.”

Contact Angela Couloumbis at 717-787-5934 or acouloumbis@phillynews.com, or follow on Twitter @AngelasInk.

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