High court’s suspension of Orie Melvin is dubious

Pennsylvania Supreme Court Justice Joan Orie Melvin leaves a hearing on the charges against her. Melvin’s suspension by her fellow justices is constitutionally questionable. KEITH SRAKOCIC / Associated Press.
Pennsylvania Supreme Court Justice Joan Orie Melvin leaves a hearing on the charges against her. Melvin’s suspension by her fellow justices is constitutionally questionable. KEITH SRAKOCIC / Associated Press.
Posted: May 25, 2012

Lost in the relief over the seeming resolution of the status of indicted state Supreme Court Justice Joan Orie Melvin is the illegality of the court’s suspension of her and its threat of further legal action. Which is the greater threat to the rule of law: a single justice who may have mixed politics with state business, or a court that ignores the constitutional structures voters put in place to rein it in?

Last week, a grand jury in Pittsburgh handed up charges that Melvin improperly used her staff for political activities on state time. There had been calls for the justice to resign from the court since her sister, State Sen. Jane Orie, was indicted on similar charges two months earlier. Chief Justice Ronald D. Castille had been quoted as saying that the court could suspend Melvin if criminal charges were brought against her or even beforehand.

After the charges were brought, Melvin announced that she was "voluntarily" recusing herself from any activity on the court. The other justices nevertheless suspended Melvin and ordered her office vacated and her files and equipment secured. In addition, a court representative said the justices could temporarily assign a senior judge to take Melvin’s place.

There is a precedent for this. In October 1993, when criminal charges were brought against Justice Rolf Larsen, the Supreme Court suspended him. That left six justices, one of whom was Frank Montemuro Jr., who had been appointed by the governor to replace the late Justice James McDermott until a special election could be held. After Castille won that election and joined the court in January 1994, the justices issued an order assigning Montemuro as a "senior justice" and the court’s seventh member.

But the court had no lawful authority either to suspend Larsen or to assign Montemuro. Several months before the court acted, the voters of Pennsylvania, tired of the spectacle of the justices overseeing their own discipline during the long Larsen episode, had passed a constitutional amendment creating a new, independent judicial disciplinary system. It included a prosecuting arm, the Judicial Conduct Board, that could bring charges against judges, and a Court of Judicial Discipline that could suspend and remove them. That court’s powers included the discretion to suspend judges "with or without pay" if they were facing felony charges.

Whatever suspension authority the justices might once have enjoyed had obviously been taken away when the new Court of Judicial Discipline was given discretion to suspend judges. If the Court of Judicial Discipline decided not to suspend a justice charged with a felony, that decision has to be final.

The high court’s assigning of a senior justice was equally flawed. The justices took a housekeeping power — the ability to assign a retired judge to temporary service — and applied it in a way never intended. The rules governing the assignment of senior judges make it clear that the power applies only to the lower courts, not the Supreme Court. One problem is that no justice so assigned could vote independently while subject to removal by four other justices at any time.

Nineteen years later, we face another instance of apparent judicial disregard for the Pennsylvania Constitution. The Supreme Court’s order on Melvin does not affect her pay and benefits; she is on a paid vacation. Only the Court of Judicial Discipline, which has belatedly scheduled a hearing on the Melvin matter, can withhold pay.

As for the continuing threat that the court could appoint its own members, maybe the justices understand the flimsiness of their earlier action. Perhaps this time, given that any senior judge would come from outside the court, the justices will hesitate.

Of course, all these problems would disappear tomorrow if Melvin would formally resign. Then she would have plenty of time to contest the charges and, if acquitted, run for justice again. This would allow the constitutional appointment process to proceed and would be best for all concerned, including the people of Pennsylvania.

Bruce Ledewitz is a professor of law at Duquesne University. He can be reached at ledewitz@duq.edu.

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