Judicial Pay Raise Reargument Focuses on Plaintiffs' Standing

Zack Needles

The Legal Intelligencer

Plaintiffs' standing was a central issue Wednesday in the reargument in the 3rd Circuit of a suit challenging the process by which the controversial 2005 pay raise for Pennsylvania judges and lawmakers was passed.

A visiting three-judge federal appeals panel -- Joel M. Flaum of the 7th U.S. Circuit Court of Appeals; David M. Ebel of the 10th Circuit; and Pierre N. Leval of the 2nd Circuit -- prodded plaintiffs' counsel to identify the "particularized injury" sustained by his clients as a result of the passage of Act 44, which the plaintiffs allege was passed as part of secret negotiations between the Legislature and the judiciary.

Eric B. Schnurer, attorney for plaintiffs Common Cause of Pennsylvania, the League of Women Voters of Pennsylvania, state Rep. Greg Vitali, D-Delaware, and four individual citizens, said the injury arises from his clients' inability to seek redress in a corrupt state court system.

A considerable portion of the two-hour-long argument was spent debating whether Act 44 is moot since it was repealed by Act 72 in 2005.

In Common Cause of Philadelphia v. Commonwealth , the plaintiffs allege that the leadership of Pennsylvania's General Assembly, together with Gov. Edward G. 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."

Because of time constraints during Wednesday's reargument, Ebel asked Schnurer to attempt to prove standing on just one of his clients.

Schnurer elected to make his case alleging a due process violation of Common Cause, saying the corruption of state courts precluded his client from bringing a case challenging Act 44, which it likely would have otherwise.

He said there is also a possibility that some of his clients' previous litigation may have been tainted by the alleged secret negotiations between the state court and the Legislature.

But Leval said the complaint does not specifically name any of those suits.

Schnurer said the suits were pending at the time the complaint in Common Cause was filed and that the effect of the alleged corruption on the outcomes of those cases can now only be assessed through discovery.

"There is a limit to what one can discover without discovery," he said.

Ebel asked Schnurer whether it was plausible to suggest that one corrupt judge could contaminate a state's entire court system.

Schnurer said it was his clients' belief that Cappy was not the only member of the judiciary involved in secret negotiations with the Legislature, but his clients were not prepared to implicate other justices by name.

"We are hampered right now until discovery," he said.

John P. Krill Jr., attorney for former Senate President Pro Tempore Robert C. Jubelirer, R-Blair; former House Speaker John M. Perzel, R-Philadelphia; and former Senate Majority Leader David J. Brightbill, R-Lebanon, said this case did not belong in federal court and that suspicions of corruption in the judiciary or the Legislature should be dealt with by seeking recusal of judges, seeking to reopen cases, appealing decisions or leaving it up to voters to elect new officials.

Krill's comments echoed language in Kane's ruling.

"For better or worse, the matters of which plaintiffs complain belong to the political and electoral process," Kane said. "For over two hundred years, our people have trusted these processes to restrain their officials from abusing the power of office and making a mockery of our laws. It is not for this court to alter the course of history now."

But Schnurer argued Wednesday that corruption of the judiciary and Legislature ran deeper than just a few individuals.

He said it had become institutionalized, surviving four governors and several new judges and lawmakers.

But Krill said the plaintiffs have no proof that there is continuing corruption in the judiciary and Legislature.

"All the complaint says is that there 'potentially still is,'" he said. "'Potential' is not an allegation of ongoing [corruption] — anything is possible."

Also at issue Wednesday was whether Act 44 is moot.

Cappy's attorney, Arlin M. Adams, said it was because its repeal put state judges' salaries "right back where they were when this whole thing started."

But Leval said it was his understanding that although the law was repealed, the state Supreme Court ruled in Stilp v. Commonwealth in 2006 that judicial pay raises cannot be reduced and the subsequently enacted Act 30 set judges' pay at the Act 44 level plus one dollar.

If that is indeed the case, he said, Act 44 still has force and effect.

Adams was granted permission to file a letter brief detailing why Act 44 is moot.

Schnurer said Act 30 only takes effect when a judge begins a new term.

Therefore, he said, a number of judges in the state are still receiving the salary set by Act 44.

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