Analysis

When Justice Joan Orie Melvin was suspended from the bench in the wake of criminal charges in May of last year, several attorneys and court watchers expressed concern that her absence would result in more 3-3 splits and possibly a less productive court.

Eight months later, as Orie Melvin fights for her professional life in an Allegheny County trial court, an examination of the court’s output during her suspension shows that while the justices’ productivity has not significantly decreased, a lack of participation by Orie Melvin has indeed led to a number of 3-3 stalemates.

However, despite the fact that Orie Melvin’s absence leaves the bench with three Republicans and three Democrats, the 3-3 splits over the past few months have not always occurred along party lines.

A search of cases on the Administrative Office for Pennsylvania Courts’ website shows that the Supreme Court issued full opinions in 59 cases during the eight-month period between May 21, 2012 — the first business day following Orie Melvin’s suspension — and January 21.

During the same eight-month period between May 21, 2011, and January 21, 2012, the court issued full opinions in 67 cases. Orie Melvin led the majority in 10 of those cases.

According to statistics provided to the Law Weekly by the AOPC, the Supreme Court issued full opinions in 129 cases in 2011 and 117 in 2012.

John J. Hare, chair of the appellate advocacy and post-trial practice group at Marshall Dennehey Warner Coleman & Goggin in Philadelphia, told the Law Weekly that he’s been pleasantly surprised that the court appears to be keeping up with case rulings and allocatur decisions despite being shorthanded.

"I’ve definitely been surprised that the rate of work from the court has continued unabated," Hare said. "A lot of us were worried about that, that things were really going to slow down."

However, the fear many had regarding a higher rate of 3-3 affirmances of lower court rulings has proven warranted, at least to a certain extent.

As of January 21, the court had deadlocked in three cases — 5 percent of its total adjudications —since Orie Melvin’s suspension.

That said, political ideology does not appear to have dictated those splits.

The first post-suspension deadlock came in July, when the court issued a 3-3 order without comment in the case of Hetherington v. Rogers, a dispute out of Schuylkill County over the removal of eight members of a local school board, stemming from the way the board handled the appointment of a new district superintendent.

The justices’ per curiam order let stand a split decision of the Commonwealth Court, whose 15-page majority opinion penned by Senior Judge Rochelle S. Friedman came over an equally long dissenting opinion from Judge Mary Hannah Leavitt in September 2010. The Commonwealth Court affirmed the decision of Schuylkill County Court of Common Pleas Judge D. Michael Stine, who had ruled to remove the board members from the North Schuylkill School District in 2009 after a group of citizens filed a petition taking issue with the board’s choice for acting superintendent — its own solicitor, Mark Semanchik — the year before.

The next deadlock occurred less than a month later.

In Allstate Life Insurance v. Commonwealth, the justices were split down the middle on the issue of whether Pennsylvania insurance companies may recoup tax credits against fixed-premium annuity assessments they’ve paid to the Pennsylvania Life and Health Insurance Guaranty Association.

The per curiam order let stand a Commonwealth Court ruling in the insurers’ favor.

The three justices in support of affirming the Commonwealth Court, in a 10-page opinion penned by Justice J. Michael Eakin, said a statutory construction analysis of the act reveals "a disparity between what the statute says is its desired result and a flaw in the methodology that would prevent accomplishment of that result."

Chief Justice Ronald D. Castille and Justice Seamus P. McCaffery joined Eakin.

Led by Justice Max Baer, the three justices in support of reversal opined the language of the statute was unambiguous, not subject to an analysis of legislative intent and, above all, binding.

The justices in support of reversal — Baer and Justices Thomas G. Saylor and Debra Todd — were of the opinion that the lead justices ignored the "foundation upon which the guiding principles of statutory construction are built."

It wasn’t only civil matters the justices were unable to agree on, however.

In September, the court reached another 3-3 impasse in Commonwealth v. Gehris, letting stand a Superior Court ruling requiring lifetime sex-offender registration under Megan’s Law in cases in which two or more of the offenses listed under Section 9795.1(a), which individually carry a 10-year registration requirement, are committed during a single nonviolent act of criminal conduct.

The justices in favor of affirming the lower court — Todd, Eakin and McCaffery — argued that while public policy considerations might suggest otherwise, the clear and unambiguous language of the statute required such a finding.

The justices in favor of reversing the lower court — Castille, Saylor and Baer — argued that in cases in which it’s clear two or more Section 9795.1(a) offenses are committed during the course of the same criminal conduct, the defendant should be subject to only the 10-year registration requirement.

But Hare said he believes the perception in the legal community at the start of Orie Melvin’s suspension was that these 3-3 splits would be even more common and more clearly defined by political ideology than they have been thus far.

"They have seemed to, when possible, render majority decisions that don’t break along party lines," Hare said.

By way of example, Hare pointed to the court’s recent ruling in Seebold v. Prison Health Services, in which it voted 5-1 toreverse the Superior Court, opting not to carve out a new cause of action as to doctors’ third-party liability that would extend beyond the doctor-patient relationship.

Hare called Seebold "a pretty good test because it’s a plaintiffs personal injury case where, if you’re going to see a split, you’re most likely to see it."

Still, regardless of how one feels about the way the justices have handled the loss of Orie Melvin, it’s clear the court has historically had difficulty reaching a result without her in certain cases, even before her suspension from the bench.

A look back at all of the cases that have come before the Supreme Court since Orie Melvin joined the bench in 2010 shows that the justices reached 3-3 splits in three other cases prior to her suspension.

In each of them, Orie Melvin would have been the tiebreaker but was forced to recuse because she had sat on the lower court panel.

Perhaps the most high-profile of those cases was Toney v. Chester County Hospital, in which Orie Melvin’s vote would have been the deciding one in a case where the lead justices said a mother may have a cause of action for negligent infliction of emotional distress after a doctor interpreted her ultrasound during pregnancy as normal and her child was subsequently born with birth defects.

It remains to be seen how the court will handle the several high-profile cases currently pending on its docket involving such politically charged topics as fracking and legislative redistricting, but Hare said he appreciates the effort the justices have made thus far to avoid locking political horns.

"It looks bad for courts to split along party lines," he said. "It makes the court look more political than it is."

Castille was unavailable for comment.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.