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Editor’s note: This is one of several articles taking a look at how Pennsylvania firms, courts and legal institutions fared during 2005. In a year like no other, the state Supreme Court exercised power, and learned the price of power. Chief Justice Ralph J. Cappy, in an active year leading the court, introduced a measure opening up Pennsylvania’s attorney discipline process, fine-tuned the certificate of merit rule to weed out the feeblest professional negligence suits, and most famously, he agreed to act as the point person for a governmental pay raise. He acted in order to secure a much-needed pay hike for rank-and-file judges, whom he leads in the unified judicial system. But the bill included pay raises for legislators. And those raises, critics said, may have been enacted without the strictest adherence to the constitutional requirement that legislators not raise their own pay, mid-term. In any event, the raise measures would have placed Pennsylvania’s trial judges among the best paid in the nation. A reporter noted that state judges gave Cappy a standing ovation at their annual conference in Hershey in July. But voters, especially in central and western Pennsylvania, were apoplectic. They vented their spleen on talk radio. And on Nov. 8, they fixed on the nearest target. Even though Justice Russell M. Nigro had said nothing about the raise, he became the object of voter outrage. Pennsylvania voters chose not to retain him for a second 10-year term. His colleague, Justice Sandra Schultz Newman, had a close brush with defeat. Nigro was the first state Supreme Court justice not to be retained in office. The justice’s defeat, for reasons largely unrelated to his performance in office, may carry repercussions far beyond 2005. Will the high court feel constrained from taking controversial stances for fear of voter backlash? Will court leaders feel inhibited in advocating for resources from state coffers? Will they be muted in making arrangements to secure those resources? Will voters remember the chief justice’s role in fashioning the pay raise deal when his name finally appears on the ballot for retention? Will the court be a tougher watchdog over the legislative process – not letting the lawmakers enact measures without dotting all their “I’s” and crossing every “T?” Or will the justices shy away from politics altogether? Finally, what is the net effect on judicial independence in Pennsylvania? Has the court been “knocked down to size” by pitchfork-wielding voters? Or will it refuse to enter into agreements with the political branches of government, thus widening the gulf between the judiciary and the executive and legislative? The answers to those myriad questions will be ascertained beginning with the new year. The Supreme Court, however, confronted many novel issues in 2005. Increasing Public Scrutiny One of the most sweeping changes announced by the high court this year is open discipline. In October, the high court adopted a rule making attorney discipline proceedings open for public review much earlier than has been the case. According to the amended Rule of Disciplinary Enforcement 402, all proceedings are to see the light of day after the respondent files an answer. In promulgating an open discipline rule, Pennsylvania joined at least 40 U.S. jurisdictions. While Rule 402 will throw open to the public the state’s attorney discipline proceedings earlier, informal proceedings where private discipline is imposed may still take place under seal. Ironically, the court struck such a blow for public review of the attorney discipline process, thus increasing accountability for the legal profession, just two weeks before the public dealt the high court a stinging rebuke in the form of Nigro’s defeat. In another move that may increase the public’s oversight of the legal profession, the high court’s disciplinary board recommended that the Supreme Court craft a new rule requiring attorney disclosure of legal malpractice coverage if it falls below a $100,000 per occurrence floor. At this writing, the justices were still mulling the proposal, which would place Pennsylvania among a small handful of states in having a mandatory insurance disclosure rule. In another bit of rule-making, juror note-taking took another advance with a new rule of criminal procedure sanctioning the practice in cases taking more than two days. The move brings the state’s criminal jury practices in line with civil court procedures that have permitted juror note-taking since 2003. In April, Cappy declared a victory in trimming medical malpractice caseloads when the court released a study showing that the number of med mal lawsuits filed in the state was 34 percent lower in 2004, compared to the two years prior to reforms of the professional negligence system. Plaintiffs filed 1,815 lawsuits in Pennsylvania during 2004 – a 34 percent decline from the annual average number of suits filed from 2000 to the end of 2002 before court rule changes and legislative measures took effect. Plaintiffs’ lawyers said, as filings are less frequent, it is reasonable to expect that payouts for malpractice claims will be less expensive by 2007 or 2008. Just a few weeks before the end of the year, the justices tweaked the certificate of merit rule, which is intended to reduce the number of weak cases by requiring expert reports within 60 days of launching a lawsuit. The court said that the rule does not necessarily require multiple expert reports if two claims are sufficiently related. The high court also has its first chance to address the certificate of merit requirement. In December, the court heard the case of Womer v. Hilliker, where litigants are debating whether the certificate of merit rule should be subject to equitable exceptions. In Their Opinion The court also made news in issuing opinions. The high court, in Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, OK’d the passage of Act 71, holding that the General Assembly had an adequate opportunity to consider the scope and nature of the slot machine bill. However, as the court was mulling the case, school districts were largely shunning participation in Act 72, which promised tax revenue from gaming in exchange for cuts in local property taxes. Part of the hesitation expressed by school board members was the uncertainty around Act 71. Many other rulings will impact the everyday practice of lawyers in profound ways. A grant of “apparent authority” from a client is not enough for a lawyer to enter into a settlement agreement, the high court ruled in a decision that was unanimous on the result but divided on its reasoning. Nigro, writing for the majority in Reutzel v. Douglas, said that express authority is necessary before an attorney may craft a settlement that a court would find enforceable. Two justices said in a concurring opinion that they would prospectively adopt a rule recognizing apparent authority. Two other justices called Nigro’s rejection of apparent authority too far reaching and “advisory” in nature. In Phillips v. Cricket Lighters, the justices ruled that a breach of warranty claim may not proceed against the manufacturers of a butane cigarette lighter since the product has already been determined not defective for strict liability purposes. In that case, a 2-year-old was killed in a fire, with two family members, after playing with a disposable butane lighter. Because the lighter was not sold as a child’s plaything, the plaintiffs could not allege a breach of the manufacturer’s warranty of merchantability. The state’s anti-racketeering law is plain on its face and does not require statutory construction, the court ruled in Commonwealth v. Dellisanti. By a 4-3 vote, the majority said that the meaning of the term “organized crime” in the act was satisfied by a defendant’s activities as a dealer of drug paraphernalia, without connection to a larger organization. The minority insisted that the racketeering law required the criminals’ use of a legitimate business. The justices also addressed a number of cases dealing with police extraterritorial authority this year. Less than two weeks after the Commonwealth Court released an opinion revealing a rift among the judges about how extraterritorial stops should be treated, the state Supreme Court in Commonwealth v. Lehman said that the Municipal Police Jurisdiction Act does not prohibit an officer from an adjacent county from investigating a report of a motorist in distress and then detaining the drunken driver until local police could arrive at the scene. In December, the high court took up a divisive case testing whether the police jurisdiction act allows a stop when probable cause emerges only after the driver’s departure from the officer’s jurisdiction in pursuit. In Martin v. PennDOT, the high court has a chance to resolve conflicting opinions on the issue. A split Commonwealth Court panel in Martin reinstated a license suspension in a case where the police officer made the stop after following a vehicle out of his home municipality. The case also has the potential to create more public controversy over Supreme Court jurisprudence. President Judge James Gardner Colins issued a fiery dissent in the case, saying that the majority has come “perilously close to turning a blind eye to questionable conduct by . . . police officers.” Melissa Nann Burke, Hank Grezlak, Asher Hawkins and Christopher Lilienthal contributed to this report.

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