The Pennsylvania Supreme Court wasted no time in ruling on a suspended colleague’s bid to have the court throw out criminal charges against her.
On the same day the Allegheny County District Attorney’s Office filed a motion opposing suspended Supreme Court Justice Joan Orie Melvin’s petition to get the political corruption charges against her dismissed, the Supreme Court denied Orie Melvin’s request.
In a one-paragraph order issued Thursday afternoon, the high court simply denied Orie Melvin’s King’s Bench petition, which argued the charges against her for using her staff and that of her sister’s former state Senate office to help with Orie Melvin’s 2003 and 2009 Supreme Court election bids were unconstitutional.
Justice Max Baer did not participate in the decision. Though the order did not say why, his law clerk, Lisa Sasinoski, used to clerk for Orie Melvin and has testified against her in preliminary hearings in the case.
Allegheny County District Attorney Stephen A. Zappala Jr. told the state Supreme Court in a filing Thursday that Orie Melvin essentially told her Superior Court judicial staff she didn’t want to spend money on a campaign staff so they would have to perform campaign work for her on the state’s dime.
Orie Melvin has argued the charges against her are constitutionally invalid because they attempt to criminalize conduct that is governed by the judiciary under its sole authority to police members’ political activity.
In his response, Zappala said he is not prosecuting Orie Melvin for pure political activity or for violation of the court’s order prohibiting certain political activity.
"The commonwealth is not prosecuting [Orie Melvin] because merely, contrary to this court’s order, she allegedly turned her judicial staff into a campaign staff," the District Attorney’s Office said in its response. "Had those judicial employees been acting on their own time, sitting at home (on weeknights or weekend days when not being paid to be working for the commonwealth) making phone calls, soliciting contributions or distributing yard signs … the problem would belong to this court."
Rather, Zappala said, he has presented a prima facie case to establish the alleged activity, which just so happened to be against the court’s order on political activity, was being performed while the employees were being paid to do the state’s business and was being carried out with state equipment and supplies given to Orie Melvin for her duties as a judge.
"[Orie Melvin] did not render unto Caesar what was Caesar’s, rather she took from Caesar and made it her own," Zappala said.
In her argument to Allegheny trial Judge Lester G. Nauhaus, which ultimately was denied, Orie Melvin’s lawyer, Donna Walsh, argued that if there is a rule established by the court regarding certain conduct by an attorney, that behavior is insulated from criminal prosecution and can only be disciplined by the court, Zappala said.
"The ramifications of [Orie Melvin's] argument are frightening to a free society: Supreme Court justices and judges of inferior courts are given a get-out-of-jail-free card in a situation where the average citizen would face criminal charges," Zappala said.
Under Orie Melvin’s theory, Zappala said, a judge who sexually assaulted a court employee could not be prosecuted because the behavior was covered by the court’s rule on sexual harassment. Zappala said that is a "warped view" of justice that does not warrant King’s Bench relief.
Zappala took his analogy a step further and asked whether Orie Melvin would be protected from criminal prosecution if she had her staff telephone her election opponent, Superior Court Judge Jack A. Panella, at all hours of the night "and threaten to kill him" if he didn’t withdraw from the race. Zappala said Orie Melvin would argue that behavior was political activity governed by the court’s internal rules.
"No judge should be permitted to misappropriate commonwealth resources to further her political career and then shelter herself from criminal prosecution by saying that the theft is insulated because of the context in which it occurred," Zappala said.
While Orie Melvin has argued it is the Court of Judicial Discipline that could charge her with any alleged violations of the court’s policies, Zappala said even the CJD has recognized activity could be both a violation of the Rules of Professional Conduct as well as a criminal violation.
Allegheny County Deputy District Attorney Michael W. Streily signed onto the response along with Zappala.
Daniel Brier, one of Orie Melvin’s attorneys at Myers, Brier & Kelly in Scranton, did not respond to a request for comment.
Orie Melvin’s criminal trial is slated to begin January 23. The seven charges Orie Melvin faces deal with theft of services, conspiracy to commit theft of services, misapplication of entrusted property and official oppression and conspiracy to tamper with evidence.