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After two terms as president judge, one of the Commonwealth Court’s most prolific and outspoken jurists in October announced 2007 would be his last year on the court. James Gardner Colins’ resignation comes a year after he turned over the president judge title to Bonnie Brigance Leadbetter and will follow a typically busy year for Pennsylvania’s administrative appellate court. Leadbetter and Judges Doris A. Smith-Ribner and Bernard L. McGinley were retained for new 10-year terms in the November election. The Commonwealth Court was called upon to decide disputes in two cases related to the election for the Supreme and Superior courts. Colins had harsh words for Superior Court Judge Joan Orie Melvin, who filed suit against state Treasurer Robert P. Casey Jr. in 2006 to return the salary increase she received as a result of the controversial pay-raise legislation in 2005. Orie Melvin, who was up for retention in 2007, wanted to give back her pay raise while the Administrative Office of Pennsylvania Courts and Casey said they were constitutionally bound to maintain only one tier of judicial salaries. In Melvin v. Casey, Colins said Orie Melvin ignored the ruling in Stilp v. Commonwealth, despite her oath to “support, obey and defend” the Pennsylvania Constitution. “Petitioner may proselytize ad infinitum against the level of judicial salaries during her retention campaign,” Colins said, adding later “however, as a judge she should not be filing specious complaints in judicial forums.” In the second case, Corbett v. Center for Individual Freedom, state elections officials and Attorney General Tom Corbett sued in Commonwealth Court to stop a Virginia-based group called the Center for Individual Freedom from airing television commercials that lauded Supreme Court candidate Maureen Lally-Green and asked voters to thank her for her work on the Superior Court. Northumberland County Common Pleas Judge Barry F. Feudale, sitting on the Commonwealth Court bench, declined to bar the ads because they did not violate standards for issue-based advertising. A 5-2 en banc panel of the Commonwealth Court ruled in Nutter v. Doughertythat the city’s campaign contribution limits are constitutional and not pre-empted by the state Election Code. The ruling by Smith-Ribner put back in place a city campaign finance ordinance that limits contributions to $5,000 per individual and $20,000 per business or political action committee. The state Supreme Court granted allocatur and heard arguments in the case in October. The high court’s decision in the case was expected before the end of the year. Social conservative activist Michael Marcavage won his challenge of a law under which he and six others were arrested on ethnic intimidation charges in October 2004 for “evangelizing against” gay rights proponents during “OutFest,” where they staged a demonstration against the festival. An en banc Commonwealth Court panel in its original jurisdiction found unconstitutional Section 2710 of the Crimes Code as amended by Act 143 because the act’s end result was too far from its original purpose to pass muster under the state Supreme Court’s “reasonably broad terms” test. In Marcavage v. Rendell, the court ruled that no matter how beneficial the bill’s purpose might be, it was altered to change its original purpose. “The original version and the final version of HB 1493 regulate vastly different activities, albeit under the broad heading of crime,” Colins said for the majority. “However, to conclude that the General Assembly could initiate a piece of legislation in the context of the Crimes Code and rely upon that concept as a unifying justification for amendments to bills under the Crimes Code that contain no nexus to the conduct to which the original legislation was directed would stretch the Supreme Court’s meaning of ‘reasonably broad terms.’” Leadbetter dissented without an opinion, and Judges Renee Cohn Jubelirer and Mary Hannah Leavitt did not participate in the consideration or decision of the case. County Officials County officials must indemnify a western Pennsylvania district attorney whom a federal jury found to have infringed upon a defendant’s property rights, a divided Commonwealth Court panel ruled in Pettit v. Namie. The 2-1 panel, relying on a trio of Pennsylvania appeals court rulings, held the federal jury’s finding that Washington County District Attorney John Pettit acted intentionally to deprive Fredrick Brilla of his property does not bar indemnification under Section 8550 of the Tort Claims Act. The state Supreme Court denied allocatur in the case Dec. 4. Judge Robert Simpson wrote for the majority, Smith-Ribner filed a dissenting opinion. Beer Sales Strictly construing the Pennsylvania liquor code’s provisions for takeout beer sales, an en banc panel of the Commonwealth Court ruled a convenience store cannot sell malt beverages for consumption off premises if it doesn’t allow patrons to imbibe on the premises. The court’s 4-3 decision in Malt Beverage Distributors Association v. Pennsylvania Liquor Control Boardputs on hold for now the expansion of beer and malt beverage sales in Pennsylvania, where consumers must buy beer either by the case from a beverage distributor, or at restaurant or tavern licensed for takeout sales. In August, the state Supreme Court granted the LCB’s petition for allocatur. Death Row Pennsylvania inmates whose death sentences have been vacated or overturned cannot force the state Department of Corrections to remove them from death row � solitary confinement � under the applicable statute, a split Commonwealth Court panel ruled. Saying that a writ of mandamus compelling the department to return the inmates to the general prison population would contradict the act governing criminal defendants sentenced to death, the court rejected an appeal by a group of death row inmates whose death sentences have been vacated in Clark v. Beard. The court also found that the inmates had failed to show they had a protected liberty interest in being held outside of death row because the court said it had no baseline against which to compare the conditions and determine whether they created an “atypical and significant hardship.” “[The inmates'] demand to be transferred out of the Capital Case Unit would, in fact, require the department to violate its statutory duty to hold them there,” Judge Mary Hannah Leavitt wrote for the majority. License Suspension In Giambrone v. Commonwealth of Pennsylvania Department of Transportation, the majority of an en banc Commonwealth Court panel ruled in favor of PennDOT in its attempt impose a six-year license suspension on a Reading-area woman who pleaded guilty after being charged with forging painkiller prescriptions about a dozen times over the course of 11 different dates. The majority concluded that those instances of forgery amounted to multiple criminal events, paving the way for PennDOT to issue Rebecca Giambrone a consecutive series of six-month license suspensions. But the two dissenters in the case argued that Rebecca Giambrone’s conduct should have been considered a single criminal episode. Confiscated Jewelry In Ex rel. Singleton v. Johnson,a split en banc Commonwealth Court panel ruled a convicted Philadelphia burglar who insisted that two pieces of jewelry he was wearing when arrested were acquired legally isn’t entitled to the property. John Singleton couldn’t produce receipts for the Gucci watch and gold-colored bracelet in question, and the authorities couldn’t match those two items to local burglary victims, as they were able to do with virtually every other piece of jewelry seized from his possession as a result of his arrest, according to court records. The five-judge majority concluded that forfeiture of the watch and bracelet was proper because the prosecution had established a nexus between the jewelry and Singleton’s criminal activities. “Once the nexus was established,” Judge Dan Pellegrini wrote on behalf of the majority, “the burden shifted back to Singleton to establish that the property did not have a criminal nexus. Without offering any evidence of lawful possession, besides his claim of ownership, Singleton failed to meet his burden.” Pellegrini was joined by Leadbetter, Smith-Ribner, Simpson and Leavitt. Colins joined in a dissent filed by Judge Rochelle S. Friedman. The Supreme Court on Dec. 12 granted allocatur in the case. Managed Care A unanimous en banc Commonwealth Court panel ruled in Insurance Federation of Pennsylvania v. Commonwealththat Pennsylvania’s managed health care plans can’t act as gatekeepers between rehab facilities and insureds whose physicians or psychologists have referred them for substance abuse treatment. A group of health insurance industry heavyweights had challenged a 2003 declaration from the Pennsylvania Insurance Department that essentially required managed care plans to provide coverage for substance abuse treatment once an insured receives “a certification and referral from a licensed physician or licensed psychologist.” The insurers contended that Pennsylvania’s 1998 law generally concerning managed health care allows insurers to conduct “utilization reviews” of the cases of insureds seeking treatment for drug and/or alcohol dependency. They also argued that nothing in the 1998 statute specifically mandating insurance coverage for substance abuse treatment supports the proposition that a doctor or therapist’s referral alone should “control the nature and the duration of treatment.” Writing for the panel, Smith-Ribner concluded that the insurers assumed a right “for a [managed care plan] gatekeeper to determine that the procedure is not medically necessary and to overrule the licensed physician.” “The court does not consider that to be what the Legislature intended” in enacting the 1998 law on insurance coverage for substance abuse treatment, she wrote. Smith-Ribner was joined by Friedman, Leadbetter, Colins, McGinley, Pellegrini, and Simpson. Next: Stories on the year that was in the state Supreme Court and the Eastern District of Pennsylvania. •

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