Visiting Panel of Judges to Hear Suit Over Pa. Judges' Pay Raise
Shannon P. Duffy10-16-2008
Litigation over the controversial July 2005 pay raise for Pennsylvania judges and lawmakers returns to court next week as a special three-judge federal appeals panel hears oral arguments on the issue of whether the process used to pass the law violated the constitutional rights of citizens.
The case, Common Cause of Pennsylvania v. Commonwealth of Pennsylvania, has already been argued before the 3rd U.S. Circuit Court of Appeals in January. But the three-judge panel later announced that the entire 3rd Circuit was recused from hearing the case because Gov. Edward G. Rendell was named as an individual defendant and his wife, Marjorie Rendell, is a 3rd Circuit judge.
As a result, the case will be reargued Oct. 22 before three visiting judges -- Joel M. Flaum of the 7th Circuit; David M. Ebel of the 10th Circuit; and Pierre N. Leval of the 2nd Circuit.
In the suit, attorney Paul Anthony Rossi of Mountville, Pa., represents Common Cause of Pennsylvania, the League of Women Voters of Pennsylvania, state Rep. Greg Vitali, D-Del., and four individual citizens.
The suit alleges that the leadership of Pennsylvania's General Assembly, together with Gov. Rendell and the former Chief Justice of Pennsylvania, Ralph J. Cappy, conspired to violate the plaintiffs' constitutional rights by passing the pay raise legislation in a manner that foreclosed public comment, full participation of all elected representatives and honest judicial review.
At the heart of the suit is an allegation that Cappy conspired with legislative leaders to pass the pay raise in the wee hours of the morning in order to avoid public scrutiny, and that Cappy secured the cooperation of the Legislature by promising to rule in its favor in two pending appeals.
U.S. District Judge Yvette Kane of the Middle District of Pennsylvania dismissed the suit in June 2006, ruling that none of the plaintiffs had standing to bring such claims and that, even if they did, the federal courts would not entertain them.
"Federal courts will not interfere with a state's distribution of power among its various branches of government," Kane wrote.
"Tempting though it may be, the court has no authority to dictate to the Pennsylvania General Assembly how that body must conduct itself when considering and enacting future state legislation, even to enter orders that would restrain Pennsylvania's elected officials from hypothetically engaging in future conduct that might violate the United States Constitution.
" Kane found that "longstanding constitutional principles absolutely forbid this court from dictating to Pennsylvania's current and future elected officials how to distribute power and responsibility for proposing or developing legislation going forward, much less to enjoin such officials from even discussing potential legislation or other matters of political business with one another in the course of fulfilling their official responsibilities."
On appeal, Rossi argues that Kane erred by failing to recognize the unique nature of the claim -- a conspiracy among all three branches of Pennsylvania's government -- and the futility of attempting to seek redress in the Pennsylvania courts.
Rossi argues in his brief that he will be able to prove the existence of the conspiracy if he is allowed discovery.
In its most explosive allegation, the suit charges that, in secret with legislative leaders, Cappy and other unnamed justices threatened that the high court would decide two pending cases against the legislature unless a bill was passed providing long-demanded funding for the state's unified judicial system.
According to allegations in the complaint, Cappy in 2005 also entered into secret negotiations with legislative leaders at the time -- Senate President Pro Tem Robert C. Jubelirer, R-Berks; House Speaker John M. Perzel, R-Philadelphia; Senate Minority Leader Robert J. Mellow, D-Luzerne; and House Minority Leader H. William DeWeese, D-Greene -- and the Rendell administration to increase the salaries of every state judge and legislator, as well as high-ranking executive branch officials.
The suit says Cappy "advocated pegging the salaries to external metrics to secure ever-increasing salaries without the need for any future (politically risky) action by the General Assembly, despite a live legal question as to whether this is prohibited by the Pennsylvania state constitution."
To accomplish the goal of pushing the controversial bill through both houses, the suit alleges, a "Trojan horse" bill was introduced in May 2005 that proposed capping the pay of executive branch employees to no greater than the governor's pay.
But the suit says the bill was later significantly expanded from its original 24-line form to 22 pages by a conference committee that met at 2 a.m. July 7, 2005.
The amended bill "reflected the deal secretly negotiated by the leaders of the three branches of state government," the suit says, by providing substantial increases in salary to every state judge, every member of the Legislature and senior members of the executive branch, including the governor and members of his cabinet.
The original content of the bill was entirely deleted, the suit says.
Just minutes after the bill was reported out of the conference committee, the suit says, it was presented to the Senate and the House under a rule prohibiting any amendment to the bill.
Rossi argues in court papers that "presentation of the bill in this manner represented the only public consideration of, and the only opportunity for 247 of the General Assembly's 253 members to consider" the bill, without any opportunity to amend it.
As a result, Rossi argues, "the vast majority of legislators were thereby denied participation in core legislative functions integral to their constitutional role, while complete veto authority over these functions was arrogated to and by a privileged subclass of legislators."
The House passed the bill by a vote of 119-79, the suit says, and the Senate passed it by a vote of 27-23. Hours later, Rendell signed the bill into law.
"By the time there was any public notice of the pendency of a massive pay raise for state officials, it was already law," Rossi argues.
Gov. Rendell is represented in the appeal by attorneys Mark A. Aronchick and Wendy Beetlestone of Hangley Aronchick Segal & Pudlin.
Jubelirer, Perzel and former Senate Majority Leader David J. Brightbill, R-Lebanon, are represented by John P. Krill Jr., Amy L. Groff and Linda J. Shorey of K&L Gates. DeWeese, Rep. Michael R. Veon, D-Beaver; and Rep. David G. Argall, R-Schuylkill; are represented by C. Clark Hodgson Jr., Thomas W. Dymek and Jonathan F. Bloom of Stradley Ronon Stevens & Young. Mellow is represented by Patrick Heffron, Eugene F. Hickey II and James F. Tierney IV of Cipriani & Werner in Scranton, Pa. Cappy is represented by attorneys Arlin M. Adams, Bruce P. Merenstein and Paul H. Titus of Schnader Harrison Segal & Lewis.