Suspended Pennsylvania Supreme Court Justice Joan Orie Melvin’s argument that political corruption charges against her, which implicate her management of judicial staff, violate the separation of powers doctrine should be taken seriously but is unlikely to sway the court, some legal observers have said.

Orie Melvin was charged with using her judicial staff and the legislative staff of her sister to work on Orie Melvin’s bids for the state Supreme Court in 2003 and 2009. She argued in an omnibus pretrial motion last week that charging her criminally for alleged violations of internal court procedures infringes on the judicial branch’s sole authority to supervise the courts.

The Pennsylvania Supreme Court established a Code of Judicial Conduct that governs political activity by judges. The court has also ruled in at least three other cases cited by Orie Melvin’s attorneys in the brief that certain legislative initiatives, such as the application of ethics laws, infringed on the court’s ability to police itself.

"A judge is, of course, obligated to comply with general criminal laws unrelated to judicial conduct," Yale Law School professor Akhil Reed Amar said in an affidavit in support of the justice’s motion.

Amar noted laws prohibiting murder or arson would apply equally to judges as they do any other state citizen. But he said the charges against Orie Melvin were "manifestly different."

"The executive branch is seeking in this case to criminalize conduct that is already the subject of regulation by the Supreme Court through the Code of Judicial Conduct and the Supreme Court order dated November 24, 1998, prohibiting court employees from engaging in political activity," Amar said. "In other words, the [Allegheny County] district attorney is seeking to prosecute the conduct of judges qua judges. This is plainly unconstitutional in that it infringes upon the power of the Supreme Court to regulate and supervise the courts."

Amar further noted the Pennsylvania Constitution provided for the creation of the Judicial Conduct Board to regulate judicial conduct. The board has initiated proceedings against Orie Melvin. Amar said the criminal charges based on the same conduct at issue in the JCB review infringes on the Supreme Court’s authority over the courts.

While Orie Melvin cited cases that have limited the executive branch’s interference with the judicial branch’s ability to supervise the courts, including an opinion from Allegheny County District Attorney Stephen Zappala Jr.’s father when he was a Supreme Court justice, court observers don’t see her argument as a slam dunk.

"It’s not a crazy argument," said University of Pittsburgh School of Law professor John M. Burkoff. "There certainly are powers that the judicial branch has to regulate on its own. And so it’s an argument that has to be taken seriously. On the other hand, it’s not likely to be a winning argument, in my view, and the reason is it still is within the legislative power to define crimes and criminal actions and the fact that someone is a judge doesn’t mean that he or she has immunity from criminal acts."

The main question for the court in this case, Burkoff said, is to what extent the legislature attempted to criminalize "core" judicial conduct.

Orie Melvin was charged with three counts of theft of services, conspiracy to commit theft of services, misapplication of entrusted property, two counts of official oppression and criminal solicitation of and conspiracy to commit the crime of tampering with evidence.

While the Pennsylvania General Assembly also has its own ethics policies, prosecutors brought criminal charges against legislators for conduct similar to that raised in Orie Melvin’s case, Burkoff said. One of those legislators was Orie Melvin’s sister, former state Senator Jane Orie.

"There are some core judicial functions that really have to be left to the judicial branch to police, but, on the other hand, the fact that someone is a judge doesn’t mean that he or she is immune from the application of all criminal statutes," Burkoff said.

Burkoff noted the legislature wouldn’t be able to say it is a crime for a judge to rule one way or another. Whether the conduct alleged in this case falls under the header of judicial functions is the big issue to be addressed by the trial court in this case, he said.

He said the prosecution in Orie Melvin’s case will most likely respond that the charges against the justice do not have to do with what employees were doing in a judicial capacity, but that they were working in a nonjudicial capacity on state time.

Burkoff said that counterargument is "likely successful."

Lynn Marks, executive director of Pennsylvanians for Modern Courts, said the fact that someone is a judge does not mean he or she is not also a citizen who must obey the same laws that apply to everyone else. While Marks said PMC is not saying at this point that Orie Melvin violated any laws, she shouldn’t be excused from having to follow them.

"So, we believe that the district attorney was entitled by prosecutorial discretion to bring charges against her," Marks said. "Separately, the constitution allows the Judicial Conduct Board to bring ethical charges against justices and judges for allegedly violating the judicial code of conduct."

A former federal judge in Pennsylvania who did not want to be named for this article said that while the judge is a strong advocate for judicial independence, "I don’t think that because you have a Judicial Conduct Board or Court of Judicial [Discipline] that would in any way immunize a judge if a judge has committed a crime."

The fact that the court has a disciplinary body has nothing to do with criminal law, the judge said.

The judge said Orie Melvin’s argument could perhaps be a defense, in that her actions were not crimes but rather asking her staff to do something that was part of judicial work. The argument shouldn’t be that she can’t be charged, the judge said, but that the charges are meritless.

The judge said prosecution of judges for this type of behavior cannot be limited any more than it was for the legislators caught up in the Bonusgate scandal for using state staffers to work on campaign work at the office.

"I haven’t heard anyone argue there is no right of a prosecutor to charge a legislator with committing acts done in the confines of performing legislative duties," the judge said.

Daniel T. Brier of Myers, Brier & Kelly in Scranton, Pa., is representing Orie Melvin in her case. For him, the issue is distinguishable from those involved in the Bonusgate cases.

"At its core, this case involves the attempted and unprecedented criminalization of the internal court rule," Brier said. "And for those reasons we believe it violates the separation of powers and due process [doctrines]."

Allegheny County Court of Common Pleas Judge Lester G. Nauhaus is presiding over the case and has ordered a status conference for today.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.