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The clich� “don’t make a federal case about it” has long been a favorite of parents and teachers dealing with overly whiny children. And that’s effectively the tone that U.S. District Court Judge Yvette Kane of the Middle District of Pennsylvania struck yesterday in dismissing a lawsuit brought by a group of plaintiffs angered by last year’s pay raise affair. In her decision in Common Cause of Pennsylvania v. Commonwealth of Pennsylvania, Kane explained to the plaintiffs group – which includes Common Cause, the League of Women Voters of Pennsylvania, one state representative and four individual citizens – that not only is their action now moot, but that they also lack the standing to bring to federal court the types of claims they did. A key aspect of Kane’s decision – one sure to catch the attention of those who have closely followed the recent battle in Pennsylvania’s state courts over the pay raise – is that the plaintiffs’ case could have been brought in state court. “Plaintiffs cannot articulate a due process claim simply by alleging that Pennsylvania judges have a financial stake in any review” of the pay raise legislation, Kane wrote. And Kane appeared to scoff at the plaintiffs’ suggestion that she, among other actions, enjoin Pennsylvania’s Supreme Court from citing certain decisions and prohibit private conversations between state legislators and jurists on disputed legislative matters. “If [this] court accepted plaintiffs’ proposed appointment as permanent overseer of the Pennsylvania courts and Legislature, and undertook to dictate its own solutions to the great public policy debate of our time, it would surely soon confront the obvious question of by what authority an appointed official second-guesses the will of the people’s elected representatives,” Kane wrote. Paul A. Rossi of Philadelphia has served as plaintiffs’ counsel in Common Cause; he was not immediately available for comment yesterday afternoon. Barry Kauffman, Common Cause of Pennsylvania’s executive director, said the decision came as a surprise to the group’s members. “The nature of Common Cause is that we do not go forward unless we have a 99 percent chance of succeeding, so obviously we’re a bit surprised by this outcome, but not entirely unprepared,” Kauffman said. Kauffman said he believes that Kane did not understand what the plaintiffs were pleading. “She does acknowledge at several points that the federal courts can handle these types of complaints but she simply said that we don’t meet the test. We believe that we do,” he said. Kauffman said Common Cause’s Pennsylvania leadership will confer with the group’s national leadership and the other plaintiffs to decide whether to appeal. “Based on this opinion, we feel that we have pretty strong grounds for appeal,” he said. Gov. Edward G. Rendell’s spokeswoman, Kate Philips, declined to comment on the decision. Rendell has been represented in the matter by Wendy Beetlestone of Hangley Aronchick Segal & Pudlin in Philadelphia. John Krill Jr. of Kirkpatrick & Lockhart Nicholson Graham, the state Senate leadership’s attorney in the case, described the plaintiffs’ case as “a publicity stunt dressed up as a lawsuit.” “Judge Kane, in my view, gave Common Cause and the League of Women Voters a refresher course in what we call ‘civics.’ She shouldn’t have had to do that; this case should not have been brought,” he said, adding later, “It’s undemocratic and elitist to be running into federal court to ask an appointed federal judge to superintend the democratic government of a state.” Cappy has been defended in Common Cause by Paul Titus of Schnader Harrison Segal & Lewis in Pittsburgh. Titus said the plaintiffs’ request for the local federal court to assume jurisdiction over all three branches of Pennsylvania government was a threat to democracy. “I’m not sure Common Cause or the League of Women Voters really thought through what they were doing,” Titus said. The state House of Representatives’ leadership has been represented in the matter by C. Clark Hodgson Jr. and Jonathan Bloom of Stradley Ronon Stevens & Young in Philadelphia. Bloom said his clients are pleased with Kane’s decision, and declined to comment further. While Kane’s opinion dealt a blow to Common Cause in federal court, the pay raise and its aftermath still loom as issues in state court. The state Supreme Court heard arguments in April on three cases dealing with the pay raise. Stilp v. Commonwealth involves claims by a Dauphin County political activist that the passage of Act 44 violated, among other provisions, Article III, Section 1′s “original purpose” clause. The consolidated appeals in Brown v. Commonwealth and Herron v. Commonwealth stem from allegations by a number of common pleas judges that the repeal of their pay raises via Act 72 violated Article V, Section 16(a), which allows for a decrease of the salaries of the state’s jurists only if the salaries of all other “salaried officers of the commonwealth” are likewise diminished. Such was not the case with Act 72, the judges have argued. The Common Cause suit claims the defendants – Rendell, the leadership of the General Assembly’s two bodies and Supreme Court Chief Justice Ralph J. Cappy – violated the First Amendment, due process and equal protection rights of Pennsylvania citizens. Kane wrote that the Common Cause plaintiffs’ complaint amounted to “an aggressive indictment of state government in Pennsylvania, containing shocking accusations that the House and the Senate leadership, the governor and the chief justice of the Supreme Court of Pennsylvania acted in concert to pass, sign and validate ill-conceived legislation, in a manner that foreclosed public debate and independent judicial review, all in violation of plaintiffs’ rights to free speech, due process and equal protection.” Kane has granted several defense motions to dismiss. Before delving further into the plaintiffs’ arguments, Kane held that their case is moot, as Act 44 of 2005 – the actual pay raise bill – was later repealed by the Legislature following a massive backlash from the electorate. “Because Act 44 has been repealed in its entirety, plaintiffs’ claims relating to the act itself and their prayer that this court enter orders declaring Act 44 unconstitutional and of no force and effect are moot,” she wrote. “To find otherwise would require this court to enter an advisory opinion regarding constitutional issues where none is necessary.” Kane went on to argue that none of the plaintiffs enjoys the standing to bring his, her or its claims to federal court. She deemed the claims of the organizations and the individual citizens too general in nature, and also held that the legislator plaintiff – Rep. Greg S. Vitali, a Havertown Democrat – had failed to describe an individualized harm, such as having been denied the right to have his vote counted. Without opining as to the propriety of the defendants’ actions with respect to the passage of Act 44, Kane reasoned that even if plaintiffs enjoyed standing to bring their action, “they have not asserted cognizable federal claims.” She concluded that under the doctrine of necessity, Pennsylvania’s state courts could have heard the plaintiffs’ case, even if the plaintiffs themselves believe the state’s jurists are unable to fairly consider a case that affects their own pocketbooks. “In a nutshell, plaintiffs are claiming that by attaching a nonseverability clause to Act 44, defendant legislative leaders rendered Act 44 untouchable by the judiciary because by invalidating Act 44, judges would also invalidate their own salary increases,” she wrote. “Accordingly, plaintiffs contend that they have no recourse to the state courts to challenge Act 44, resulting in a violation of their due process rights. “Plaintiffs’ claim that access to the courts is denied because the state judiciary is incapable of dispassionate review finds no factual or legal support. Although plaintiffs may prefer a different forum, the doctrine of necessity, long-recognized by Pennsylvania and federal courts, permits the Pennsylvania courts to hear plaintiffs’ claims.” In analyzing the plaintiffs’ request that she prevent Pennsylvania’s justices from basing their decisions on certain precedents, Kane wrote that “it is difficult to believe plaintiffs could make such a request in good faith.” Toward the end of her opinion, however, Kane did express some sympathy for the plaintiffs’ plight. “Tempting though it may be,” she wrote, “[this] 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.” The state Supreme Court has yet to rule on the pay raise-related appeals presently before it. Robert Heim of Dechert is lead counsel for one of the groups of common pleas judges that have challenged the revocation of their pay raises. Heim said he was glad to see that Kane’s decision in Common Cause made such a prominent reference to the doctrine of necessity. “[That doctrine] doesn’t seem to be well-known or understood,” Heim said, adding later, “I think it takes courage for courts to do what they believe is right as a consequence of following and applying the law, even though they know there will be accusations that they have an interest in the outcome.” Gene Stilp, the activist who is plaintiff in the suit that challenges the propriety of Act 44′s passage, said he believes the justices will choose to reinstate the pay raise for the state’s jurists. “I think [Kane's decision] puts the focus right back on the Supreme Court of Pennsylvania,” Stilp said. “I expect that later this summer, on a very hot Friday afternoon at 5 o’clock, when everybody’s at the seashore, they’ll release their decision.” - Peter Hall contributed to this report. (Copies of the 36-page opinion in Common Cause of Pennsylvania v. Commonwealth of Pennsylvania , PICS No. 06-0808, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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