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State Supreme Court Justice Ronald D. Castille’s letter warning of possible disciplinary action against a law professor who called the court’s 2006 pay-raise opinion a “judicial swindle” could prove to be as much of a problem for the court as the criticism it addresses, court watchers say. Tumult erupted late last month, when Duquesne University Law Professor Bruce Ledewitz told a state Senate committee investigating judicial compensation that Castille had threatened to bring disciplinary charges against him in a letter to Duquesne Professor Kenneth E. Gormley. ( Editor’s note: The full text of Castille’s letter to Gormley may be found here.) (To read Howard Bashman’s view on the controversy, click here here.) Castille sent the letter to decline an invitation to appear at an event honoring U.S. Supreme Court Justice Samuel A. Alito Jr. In the letter, Castille wrote it would be “inappropriate to lend the prestige of this court to this event by my attendance as long as one of your cohorts in the teaching profession at Duquesne Law School continues his unfounded, slanderous and libelous attacks on the integrity of this court.” Castille’s letter refers to Ledewitz’s remarks at an earlier hearing of the Senate State Government Committee at Duquesne University in Pittsburgh. Ledewitz was quoted Feb. 22 in the Beaver County Times calling the high court’s 2006 decision in Stilp v. Commonwealth, a “judicial swindle.” The Times also characterized the professor as calling the justices even more corrupt than the General Assembly in an interview after the hearing. Stilp, in which Castille wrote the majority opinion, restored the judiciary’s controversial July 2005 pay hike while striking down raises for lawmakers as unconstitutional. The decision was backed by a 5-1 vote of the justices. “While these statements may be the personal opinion of your colleague, they are charges that an attorney cannot make against the Supreme Court and its members without subjecting that attorney to possible sanctions by the Disciplinary Board,” Castille wrote to Gormley. “The charges appear to me to be clear violations of the Rules of Professional Conduct and therefore worthy of the board’s attention.” Castille closed the letter, “You may share these thoughts with whomever you deem appropriate.” Duquesne Law School Dean Donald Guter, said Gormley showed him the letter, and Guter, in turn, showed Ledewitz. After Ledewitz announced the letter’s existence March 28, Castille refused to release the letter to the Senate committee or media, including The Legal Intelligencer, despite multiple requests. With regard to the Senate, Castille was quoted by the news service Capitolwire.com as saying, “It’s none of their business.” Castille agreed to release the letter to The Legal Thursday morning after Senate Republicans had provided it to the media. In an e-mail denying a formal request by The Legal for the letter last Wednesday, Deputy Court Administrator Thomas Darr said, “The justice has spoken at length and on the record with reporters who have sought his comment on this, thus allowing for considerable context to be reported.” The same afternoon, Sen. Jeffrey Piccola, R-Dauphin, who is the majority leader of the Senate State Government Committee, announced his plan to issue a subpoena to obtain the letter from Gormley. Gormley has not commented on the episode and declined to provide the letter voluntarily. “I do not ordinarily circulate or disseminate private mail that has been sent to me, whether from a state Supreme Court justice or from a fellow professor or from a private citizen,” Gormley said in a letter to Piccola’s counsel. Gormley said he could not see the letter’s relevance to the committee’s hearing, but would honor a subpoena. Also last Wednesday, Steve MacNett, general counsel to the Senate Republican leadership, contacted Castille to request a copy of the letter. Castille agreed to release a copy of the letter, “as a gesture of intergovernmental cooperation,” said L. Stuart Ditzen, spokesman for the Administrative Office of the Pennsylvania Courts. MacNett, whom Ditzen described as an old friend of Castille’s, “was acting as an emissary for the Senate.” Piccola told the Philadelphia Inquirer, the release of the letter should serve as a deterrent against intimidation of witnesses. “It’s a crime to intimidate a witness who comes before the court. Shouldn’t that apply to the Legislature?” Piccola said, according to the Inquirer‘s report . Ditzen said Castille felt Piccola’s remarks were off base. “He didn’t have the foggiest idea that Ledewitz was going to testify before Piccola. He’s just offended about the things that Ledewitz has said over time and he’s extremely offended about the things that Ledewitz said to the Beaver County Times,” Ditzen said . “It had nothing to do with Piccola, the Senate or Ledewitz’s testimony.” Castille said he hasn’t decided whether he will initiate disciplinary proceedings, although he noted the board could do so on its own. Academic Freedom Guter, the Duquesne Law School dean, said he sensed an air of exasperation when Gormley came to his office and threw Castille’s letter on his desk. “If you’re in Professor Gormley’s position and you’re trying to win the hearts and minds of the justices with your programs, I’m sure its exasperating to do that knowing that they’re being attacked by another professor,” he said in an interview with The Legal. Ledewitz’s criticism of the court has been a subject of controversy at the law school, but Guter said he doesn’t believe it has caused the university any harm. “I have not seen a negative impact that you would measure,” Guter said. “Are there people who have expressed the same sentiment as Justice Castille? Yeah, the difference is what they were doing to or for Duquesne University before and after.” Guter said he has received suggestions that he pressure Ledewitz to back off or stop his criticism. “I’m not going to do that,” he said. Guter said Ledewitz’s relationship with the rest of the law school faculty is excellent, and that while some are critical of his message, “it’s not more than two or three.” Guter said Ledewitz’s activities have fallen squarely within the university’s policy on academic freedom of expression. “As long as Professor Ledewitz is out there saying these are not the views of the university . . . then he is in the realm of the First Amendment and some of these people who are out there criticizing him should take a step back and look at that,” Guter said. Castille said Ledewitz, as a lawyer as well as an academician, is held to a higher standard. “Being an academician doesn’t give you the right to charge misconduct unless you have proof. He’s a different kind of academician. He’s a lawyer and he’s bound by the rules of judicial conduct,” Castille said in an interview with The Legal. Ledewitz has been an outspoken critic of Pennsylvania’s judiciary for as long as 20 years, by some estimates. Lynn Marks, executive director of Pennsylvanians for Modern Courts, said his public profile recently increased. “He’s been writing law review articles since at least the early ’90s, but his criticism of the court escalated in the summer when he released his Platform for Reform,” Marks said. Ledewitz’s Platform for Reform is a comprehensive proposal designed to improve the transparency and accountability of the Pennsylvania judiciary. “I think many people thought that with the release of his platform, he was preparing to run for the Supreme Court, and that speculation increased when it turned out there would be two seats,” Marks said. With the endorsement of his platform by the government reform group Democracy Rising, Ledewitz’s profile grew and he attracted the attention of the state’s legal establishment. “Although he has been a lone voice, he is a very quotable voice. And his voice has been augmented by the political climate,” Marks said. “There has been more notice of his statements. He has been saying them for years, but they became more relevant or more poignant at a time following the pay raise,” Marks said. She said she believes Ledewitz and his message cause the courts to worry that public anger over the pay raise will persist. “Why are people afraid? They saw what happened after the pay raise and Justice Nigro was not retained,” Marks said. “I think people were concerned that he would hurt the independence of the judiciary.” Edward W. Madeira, of Pepper Hamilton in Philadelphia, is a member of the Supreme Court’s Commission on Judicial Independence. He said he believes the media turn to Ledewitz for commentary on the courts “because he has a spicy tongue.” Madeira said that Ledewitz’s commentary is often off the mark. “Many of the systemic problems he alludes to are things of the past rather than things of the present or future,” Madeira said. The courts have been focused for some time on modernizing its operations to meet the state’s needs, Madeira said. “I am persuaded that the court is leading the judiciary in modernizing the courts and providing for the needs of communities in Pennsylvania,” Madeira said. “To focus on some of the arcane things the professor does doesn’t provide a very good balance.” Madeira said that while he disagrees with Ledewitz’s position on the court and disapproves of the attention the Duquesne law professor receives, he said the Commission on Judicial Independence was not created to silence Ledewitz or any of the judiciary’s critics. “It was well before anyone knew about Democracy Rising,” Madeira said of the commission’s formation. “The concept of judicial independence was being talked about well before that. I don’t think we were the first to set up some organization of that type.” Ledewitz himself is eager to put to rest rumors that he has been silenced. In August, Ledewitz presented the first in a planned series of continuing legal education seminars on his platform for judicial reform. After the first presentation at Duquesne, the series was canceled. Rumors circulated in the state’s legal community that Chief Justice Ralph J. Cappy pressured Guter to cancel the series. Ledewitz and Guter both say the series was canceled after the university received criticism and Ledewitz himself suggested he disassociate his platform from the law school. “Duquesne Law School doesn’t owe me a continuous platform to present my ideas,” Ledewitz said. He has since toured the state to present the platform with the sponsorship of the League of Women Voters. Use of Power Sen. Anthony H. Williams, D-Philadelphia, the minority chairman of the Senate State Government Committee, said he is deeply troubled by Ledewitz’s revelation at the hearing last week. “I have grave concerns that a Supreme Court justice would do that and use their power in such a matter,” Williams said. Williams said he believes Castille’s reaction was overblown. “I was amongst those being called the same name,” Williams said, referring to Ledewitz’s allegations of the court’s corruption relative to that of the Legislature. “He testified before me and I didn’t take offense. It was a matter of what he called me.” Pennsylvania Bar Association President Kenneth J. Horoho Jr., of Goldberg Gruener Gentile Horoho & Avalli in Pittsburgh, said he doesn’t view the letter as threatening because it simply states that unfounded allegations against the court could result in disciplinary charges. “That’s a statement of facts more than a threat,” Horoho said. “That’s how I would view it.” Horoho allowed that the letter could be seen as threatening, but in context, he said, Castille appears to simply state his interpretation of the Rules of Professional Conduct. He added the fact that the letter was addressed to Gormley and not Ledewitz makes it more difficult to view as a threat. “It’s hard to consider that a threat, in all honesty, given the content and the intended recipient,” he said. Alan M. Feldman, of Feldman Shepherd Wohlgelernter Tanner & Weinstock, the past chancellor of the Philadelphia Bar Association, said he sees Castille’s letter as a sign of frustration at Ledewitz’s disproportionate representation in the mainstream media. “I think the Inquirer and the other mainstream media outlets need to own up to their responsibility for giving this guy a platform time after time,” he said. He added that while Ledewitz’s remarks were out of line, the reaction has been out of proportion. “I think everyone needs to cool down and let this go by,” Feldman said. Michael Pratt, chancellor-elect of the Philadelphia Bar Association, said the association is watching the situation closely. Chancellor Jane Dalton has deferred comment on the issue because she represented judges in the pay raise litigation, Pratt said. Pratt, of Pepper Hamilton in Philadelphia, said the letter should not reflect on the court as a whole. “This is one justice expressing his views or opinion and should not be used in any way against the court as an institution,” he said. Castille could face another difficult question about whether he will recuse himself if disciplinary action against Ledewitz comes before the court, Pratt said. Samuel C. Stretton, of West Chester, who writes a regular column on attorney ethics for The Legal’s sister paper Pennsylvania Law Weekly, said both Ledewitz and Castille erred, and Piccola will only magnify the damage to the court and the profession by prolonging the attention the episode receives. “The bottom line is this: Professor Ledewitz, for whom I have a high level of regard, made a major error of judgment by using such inflammatory language,” Stretton said. “Those words imply serious misconduct, if not criminal conduct.” Lawyers are free to criticize the courts, Stretton said, but it must always be done constructively. And when respected lawyers make unfounded allegations, it undermines the independence of the judiciary, he said. “The independence of the judiciary is at issue because if the public perceives the judges and the institutions aren’t working, they will potentially vote out good judges and the judges who are already on the bench won’t take strong stands on difficult issues,” Stretton said. Stretton also said Castille’s letter was “ill-thought-out.” “I think Justice Castille was so upset that he was being broad brushed as a swindler and corrupt he overreacted,” he said. Stretton said he couldn’t say whether Ledewitz will actually face disciplinary charges, but the Disciplinary Board will likely open a file. He added that he prosecuted several lawyers under similar circumstances when he was a member of the Disciplinary Board. Stretton said while Ledewitz could face sanctions that would have a major impact on his career, the court has the most to lose in the erosion of judicial independence. “In the long run, Piccola could do more damage than either of these two relatively minor events,” Stretton said. “It plays well in the middle of the state right now because everyone is outraged at the judiciary.”

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