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At 2:30 p.m. on Sept. 14, the Thursday before last, journalists across Pennsylvania were plowing through the state Supreme Court’s 100-page opinion in the pay raise litigation � which had been filed just an hour earlier � when a somewhat mysterious e-mail appeared in their inboxes. Attached to the message was a statement from a group called the Pennsylvania Commission on Judicial Independence. Though formed in October 2005 by the Pennsylvania Supreme Court, according to the statement, many court-watchers had never heard of the organization until that moment. A search of the court’s Web site for the last quarter of 2005 failed to turn up an announcement or notice regarding the commission. The commission’s membership list reflected big-name judges, lawyers and academics from across the state. Its statement that Thursday, obviously prepared well in advance of that afternoon, was brief and did not address the specifics of the majority’s holding in Stilp v. Commonwealth. But it did voice support for the court � in particular, its right under the legal doctrine known as the Rule of Necessity to hear the case in the first place. Though the genesis of the group hails back to well before the summer of 2005, and though its original mandate was to help respond to attacks on the judiciary in all forms, the timing of the commission’s formation has tied it inexorably to the pay raise affair, from which nearly all the anger currently directed at the court has flowed. As the commission has in recent weeks sought to call the public’s attention to the good things the court is doing, it has apparently also become involved in the push to direct the media’s attention away from the court’s most prominent current critic, a Pittsburgh law professor who swears he has no intention of running for the high court himself. An Issue of Timing According to commission member U.S. Middle District Judge John E. Jones III, of intelligent design fame, the fact that the group’s formal creation coincided with the explosion of the pay raise affair was merely fortuitous. “And indeed, that’s why it has been operating in the fashion that it has, which is not a particularly out-front way,” Jones said. “It was never created as a specific response to the so-called pay raise controversy.” Edward Madeira Jr. of Pepper Hamilton, another commission member, acknowledged that it “looks chronologically” as if the commission was set up in the wake of “the hue and cry over the pay raise.” “There hasn’t been any real formal public announcement” concerning the group, Madeira said. “But I have heard the chief justice announce it to various groups of judges over the last year and few months.” Jones said that when he was contacted about joining the commission early in the summer of 2005, he was eager to be a part of an organization that sought to give Pennsylvania’s judiciary a public voice. That commitment only increased, Jones said, when he personally experienced significant backlash from certain quarters over his landmark decision in Kitzmiller v. Dover Area School District. Senior Judge Stephen J. McEwen Jr., who co-chairs the commission with former state Supreme Court chief John P. Flaherty, said Chief Justice Ralph J. Cappy contacted him about heading the commission in the fall of 2004. McEwen recommended several Philadelphians for membership, including Madeira, “and Ralph thought they were fine choices, so they were named.” “We’re trying to emphasize to the public that the courts are really the conscious of the constitution and that the courts really can’t seek popular approval,” McEwen said of the commission. So far, members of the group have met face-to-face three times, but have held regular conference calls every month-and-a-half, members said. At one meeting several months ago, the members said, it was decided to draft a statement supporting the court’s involvement in the pay raise litigation that could be released once the opinion was filed. “The thought was to try to anticipate, if they came to a decision that some of the pay raises were to be upheld, that there were going to be accusations of self-serving interest against the court,” Madeira said. Members of the commission stressed that they did not have any inside information about the opinion or its key holdings. “The commission certainly understood [as of this summer] that in some point in the fall, the decision was going to be rendered,” said Jones. “So a statement was prepared � you’ll notice the statement doesn’t go to the merits of the decision itself.” “We did not want to be asleep at the switch,” said Philadelphia Common Pleas Judge Renee Cardwell Hughes, another commission member. The commission’s relationship to Pennsylvania’s court system is unclear. “There’s no formal relationship” with the Administrative Office of Pennsylvania Courts, said AOPC spokesman L. Stuart Ditzen, whose name is listed as the contact at the top of the commission’s Sept. 14 statement. “We at the AOPC in the public information office were assigned to try to assist them in writing tasks, when needed.” “Are we an arm of the AOPC? I think we consider ourselves independent � I know that I do,” Madeira said. Ditzen said he and other members of the AOPC’s press office devote small amounts of time to commission-related work, while AOPC staff attorney Darren Breslin has been assigned as its liaison to the commission. Madeira said that Breslin attends commission meetings and helps facilitate communications between its members. In addition, commission members are permitted to expense travel and lodging costs to the AOPC, said Ditzen, who added that there is no set budget or separate funding stream for the group. Public Enemy No. 1 One person who doesn’t seem to have too many friends on the commission is Bruce Ledewitz of the Duquesne University School of Law. “He has shown himself to be much more of a critic with an agenda,” Ditzen said. “My only perception of his agenda is that he’s a perpetual critic of any and everything that the Supreme Court does.” “He is the darling of the media,” said Madeira. Ditzen said the commission, in conjunction with the Pennsylvania Bar Association, has been involved in an effort to try “to convince other law professors to come forward” and make themselves available for court-related comments to the media, thereby helping the press “look beyond Bruce Ledewitz.” The PBA has recently been sending to Pennsylvania media outlets a list of suggested legal academic contacts � one of them being John Burkoff of the University of Pittsburgh School of Law, who is also a member of the commission. Madeira said he was involved with the creation of the PBA’s contact list because he felt Pennsylvania media were relying too heavily on Ledewitz and not enough on other law professors who possibly weren’t always so eager to criticize the court. “Why can’t we have more quotes than from professor Ledewitz?” Madeira asked. Ditzen said the law professors on the PBA list were approached about being named in it. “We’ve been in touch with those professors and tried to let them know that Darren [Breslin] is available to provide them information and assistance if they need it. “I don’t know if many of them are getting calls [from the media], but if the professors need some perspective on what they’re being asked, we can help provide that.” At least one senior member of Pennsylvania’s judiciary has publicly suggested that Ledewitz’s criticism is being promulgated more by a desire to create a high public profile in anticipation of a run for a justice’s seat than by personal ideology. Media in the western part of the state reported several weeks ago on the circumstances surrounding the cancellation of a statewide tour of Ledewitz’s CLE-accredited program on court reform. The reports suggested that during a lunch meeting with Cappy and Superior Court President Judge Kate Ford Elliott, Dean Donald Guter of Duquesne Law was pressured to scrap the tour, which the law school was sponsoring. In response to those articles, Ford Elliott sent a letter to the Pittsburgh Post-Gazettedenying that such pressure had been exerted. “I would also hope that when Mr. Ledewitz formally begins his campaign for the state Supreme Court, which despite his fervent denials can be the only explanation for his quest for publicity at any cost, he fully appreciates that integrity and a strong sense of fairness are quintessential qualities in any judge or judicial candidate,” Ford Elliott wrote in the late-August letter. (She did not respond to a call seeking comment.) Ledewitz told The Legalin a Friday interview that he’s not surprised people think his vocal criticisms mark the prelude to a high court run. “[That] would be a very good strategy,” he said. “No wonder people think it’s so. But I’m not going to run for the court. If I ran, everything I’ve said would be looked at as self-serving.” “Bruce Ledewitz sounds like a candidate for office,” Ditzen said. As far as the commission goes, Ledewitz doesn’t seem impressed. “I don’t think the courts need �independence.’ They need criticism. � What these people mean by independence is that people shouldn’t criticize the courts. It’s what the elites always say: �Go away, we know better than you do.’”

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