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Colleagues and critics alike say Chief Justice Ralph J. Cappy will leave the state Supreme Court and unified judicial system in better shape than he found them, but some said Cappy’s legacy of reform may be partially obscured by the controversy and changes in judicial politics that stemmed from his effort to protect the court’s independence.

Cappy, 64, announced Sept. 11 that he would step down Dec. 31 to pursue other opportunities after 17 years on the Supreme Court, including four as its chief.

“I think his legacy is one of continuing the modernization of court systems that began under his two predecessors,” said Robert L. Byer, chairman of the appellate practice group at Duane Morris in Pittsburgh and a former Commonwealth Court judge.

In addition, the court enjoys a level of collegiality that did not exist before Cappy became chief justice, Byer said.

While Justice Ronald D. Castille will ascend to the chief justice’s seat, Cappy’s departure will cause the court’s third vacancy in as many years. With elections this year to fill two seats, court watchers are speculating about whom Gov. Edward G. Rendell will nominate to serve until the next judicial election in 2009.

“Everyone has been telling me that Justice [Cynthia A.] Baldwin will be taking that seat,” said former justice Sandra Schultz Newman. “It makes sense. It supposedly takes a million dollars to get a justice up and running. It just seems that it would be absurd to go looking for someone else.”

Baldwin was appointed in early 2006 to take former Justice Russell M. Nigro’s seat after he lost his retention election in the wake of the 2005 pay raise affair.

Baldwin, a former Allegheny County Common Pleas Court judge, said she would not speculate about receiving the nod from Rendell. She said she hasn’t had any contact from Rendell’s office.

Asked whether she would consider serving another interim term, she said, “I can’t answer that because I haven’t thought about it.”

Out of Turmoil

Cappy joined the court as it entered a period of turmoil in the early 1990s with former justice Rolf Larsen’s indictment. Justice Stephen A. Zappala, a court veteran, tapped Cappy to lead a fundamental reform.

“In many ways the court is more open and transparent,” said Duquesne University Law professor Bruce Ledewitz, a vocal critic of the court.

“Before, you could cherry pick a particular justice – you could go to your friend – to get a stay on a lower court ruling under King’s Bench power. All of that was abolished,” he said.

“Clearly one of his legacies is going to be as a chief justice who really did bring the court to a new level,” said Allegheny County Bar Association President Kenneth E. Gormley, also a Duquesne University law professor.

A scholar of Pennsylvania constitutional law since the early 1980s, Gormley said the state Supreme Court of years past was not an impressive thing.

“There were justices talking out loud, drinking Cokes and walking around,” Gormley said. “Chief Justice Cappy was very successful in turning this court into a very solemn body.”

“Chief Justice Cappy was instrumental in assisting the Supreme Court to come out of the dark ages,” Zappala said in a statement.

Zappala noted Cappy’s tenure coincided with the implementation of a nationally recognized court automation system. Cappy also established the Interbranch Commission for Gender, Ethnic and Racial Fairness and worked to further develop the Judicial Council.

“More importantly, Chief Justice Cappy maintained the separation of powers among the branches of government in a cordial manner, at the same time promoting the autonomy and independence of the judiciary,” Zappala said.

The Pay Raise

Cappy’s work included an unpopular effort in the Legislature that landed in his own court to establish a system to provide regular compensation increases for the judiciary bundled with a mid-term pay hike for legislators in the form of unvouchered expense allowances.

“Ralph was a great supporter of issues, problems that the common pleas judges in Pennsylvania experienced. He stood up for them and they appreciated that,” said former justice William H. Lamb, now of Lamb McErlane in West Chester.

“He stood up for them on the pay raise and got really criticized for that,” Lamb said.

Ledewitz said it’s unfortunate the pay raise will be what many people remember about Cappy’s tenure.

“Cappy’s legacy will not be what he deserves. He was in many ways a fine chief justice,” Ledewitz said. “It is in some ways ironic that he will be associated with the court’s excesses regarding the pay raise.”

The pay raise, passed by the General Assembly, literally in the middle of the night, at the end of its session in July 2005 is widely regarded as the reason for Nigro’s ouster in his retention race that year.

Since the outcry, the pay raise legislation has been dismantled in the Legislature and the Supreme Court.

Later in 2005, the Legislature passed a law repealing the pay raise for both legislators and judges. The Supreme Court issued an opinion last September without Cappy’s participation, striking down the portion of the law pertaining to judge’s salaries as unconstitutional.

Finally, last July, Rendell signed a bill that erased the final vestige of the pay raise law – a provision that linked Pennsylvania judges’ salaries to those of the federal judiciary as a way to depoliticize judicial compensation.

“Unfortunately his primary legacy of maintaining the independence of the judiciary has also been controversial,” Zappala said. “If the citizens of the commonwealth were aware of what was required of judicial officers in the past, when they had to go hat in hand to seek increases in judicial compensation, they would know that the process was demeaning and degrading.”

In a statement released the day he announced his resignation, Cappy said the pay raise controversy played no role in his decision. Cappy, who had a hip replaced in July, said he spent time reflecting on his career during his convalescence and decided it was time to “pass the torch.” He also cited a desire to spend more time with family and pursue personal interests.

Future Plans

While no one interviewed for this article could say specifically what Cappy’s plans include, most agree he would have little trouble landing a position in the private sector.

“He’s in his early 60s; he’s in good health. Wherever he winds up going, he will be able to attract a very handsome compensation package and it’s something that he sure deserves,” Lamb said.

Cappy graduated from the University of Pittsburgh School of Law in 1968 and was among the first assistant public defenders in Allegheny County after the Public Defender Act was passed. Cappy later ran the Public Defender’s Office.

Robert J. Cindrich, chief counsel of the University of Pittsburgh Medical Center, where Cappy is first vice chairman of the board of trustees, graduated from Pitt with Cappy and worked in the Public Defender’s Office at his side.

Later, Cindrich and Cappy shared a law office with attorney Sam Goldman.

“I think he’ll want to do something in the law,” Cindrich said. “One thing for former judges, we’re often called upon as mediators.”

Cappy, as a common pleas judge, had a reputation as an excellent mediator, Cindrich said.

Gormley agreed that Cappy’s talent as a lawyer and reputation as a mediator would make him a “major catch” for any legal employer.

“He had a reputation for settling massive complex common pleas cases that gave everyone else headaches,” Gormley said. “He has experience that would make him a dream for anyone hiring appellate counsel.”

University of Pittsburgh Law School Chancellor Mark A. Nordenberg said he expects Cappy to carry on his work with the university where he is currently chairman of the board of trustees.

“I do think he has a great love of the university,” Nordenberg said.

New Chief

Sitting at Cappy’s right elbow on the Supreme Court dais, Castille provides contrast to Cappy’s outgoing and personable demeanor as slightly gruff but more likely to make a joke during oral arguments.

A former Philadelphia district attorney, Castille came to the court three years after Cappy.

Lamb said Castille’s experience running the District Attorney’s Office gives him credibility as an administrator.

“There are lots of problems the chief justice has, that are unique to the chief justice,” Lamb said. “There’s not a doubt in my mind that Ron Castille will measure up to that task.”

As a jurist, Castille has demonstrated a strong independent streak, dissenting strongly in gambling cases and setting aside a U.S. Supreme Court opinion in one of the state’s biggest First Amendment cases.

Ledewitz pointed toward Castille’s opinion in Pap’s A. M. v. City of Erie, 812 A.2d 591 (Pa. 2002) ( Pap’s II), ruling that because the crime prevention goal of a city ordinance banning nude dancing was inextricably bound to the dancing itself strict constitutional scrutiny must be applied. The U.S. Supreme Court, in a plurality, found the law did not violate the First Amendment.

“Castille led the court to go further than the U.S. Supreme Court,” Ledewitz said. “They in effect reversed the U.S. Supreme Court.”

“Justice Castille is certainly someone with a great reservoir of experience,” said Gormley. “His opinions reflect a great practical understanding of the ramifications of legal decisions.”

Gormley said Castille expected to follow in Cappy’s footsteps. Like Cappy, he has shown a commitment to the court’s efficiency and collegiality.

“I’ve had the pleasure of dealing with many appellate jurists and Chief Justice Cappy has been among the finest,” Gormley said. “My thought is that Justice Castille is of the same mold.”

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