In the wake of suspended state Supreme Court Justice Joan Orie Melvin’s conviction Thursday of six of seven criminal charges, the fate of her seat on the high court remains up in the air.
Orie Melvin was charged with using public resources for the purposes of judicial campaigning, including directing her law clerks and staff to perform campaign work rather than court business.
Robert Graci, chief counsel for the Judicial Conduct Board, the prosecutorial entity in judicial misconduct cases, said that Orie Melvin’s suspension both by her fellow justices and by the Court of Judicial Discipline would remain in place. But Orie Melvin’s conviction does not automatically lead to her removal as a justice, Graci said, and there are three ways that she could be removed.
The state constitution does not allow public officials to hold office if they have been convicted of an "infamous crime," Graci said.
The trial judge in Orie Melvin’s case could find that her crime was one of infamy and enter an order that she be removed from office, Graci said, but Orie Melvin would have the right to appeal any such order.
The House of Representatives also could file articles of impeachment against Orie Melvin, and then the Senate could try Orie Melvin on whether to remove her from office, Graci said.
Orie Melvin has 30 days from the date of the jury verdict to file a response in the case pending in the Court of Judicial Discipline, Graci said. A finding by clear and convincing evidence that Orie Melvin committed judicial misconduct also could result in her removal, Graci said.
The case in the Court of Judicial Discipline would vindicate the interest that jurists not bring the justice system into disrepute, Graci said.
Orie Melvin faced seven counts, including three counts of felony theft of services, one felony count of conspiracy to commit theft of services, and one count each of misdemeanor misapplication of government property, official oppression and conspiracy to tamper with evidence.
The jury hung on one count of official oppression against Orie Melvin.
Orie Melvin’s sister, Janine Orie, who worked for her in the court, also was found guilty on all but one count.
One of Orie Melvin’s attorneys did not respond to requests for comment.
Philadelphia Bar Association Chancellor Kathleen D. Wilkinson called on Orie Melvin to resign so that her position on the court could be filled by an interim justice.
If Orie Melvin does not resign, then "there must be a way that seat becomes open again so someone can be appointed," Wilkinson said in an interview.
But the association will "look to the Supreme Court for guidance in that regard," Wilkinson said.
Wilkinson said it was important that Orie Melvin’s position be filled as soon as possible. Many lower court appellate decisions remain "intact" in the event of ties between the evenly-populated Supreme Court, she said. Further, having a full complement of justices would restore the public’s confidence that the court is ready and prepared to address their cases, Wilkinson said.
The Legal reported last month that between May 21, 2012 — the first business day following Orie Melvin’s suspension — and January 21, that three of 59 cases resulted in the justices being deadlocked.
Other interim justices have been appointed in the wake of deaths, retirements or resignations, Wilkinson said, pointing out that one former interim justice, Judge James J. Fitzgerald III, is still sitting as a senior judge with the Superior Court.
Mark Vuono, president of the Allegheny County Bar Association and of Vuono & Gray in Pittsburgh, said the association has not taken a position about having Orie Melvin removed from the court, but he said it is disappointing to lawyers who want guidance when the justices vote 3-3 on disputes. He pointed out that one important decision pending with the court is the redistricting of legislative districts.
"It would be great if we could move onto a full court in the future," Vuono said. "We don’t know what Justice Melvin may do voluntarily. We don’t know what the Court of Judicial Discipline or what the Supreme Court might do in terms of her status, whether they’ll take any action before the appeals. We’re in a wait-and-see mode on that."
"It’s a healthier court when it’s a fully manned court," said Phyllis Beck, a retired state Superior Court judge and a member of the board of Pennsylvanians for Modern Courts.
Some bar associations and legal groups took the position that Orie Melvin’s conviction shows the downsides to the election of judges.
Wilkinson said that, if there was an appointed process to select judges based upon merit instead of judicial elections, "you don’t have to campaign. You’re not involved in trying to raise campaign money, trying to find the time to raise that money, trying to find that time to present speeches and go on the trail."
Beck said that she has been fighting for merit selection ever since she was appointed to chair former Governor Robert P. Casey’s judicial reform commission, and that the Orie Melvin case is just the latest instance of why that would be a better system.
Elected judges "have to be super careful not to use government resources for election purposes," Beck said. "Judges, once they are on the bench, are not political, should not be political and should not be using government resources for their own benefit in seeking higher office."
The Pennsylvania Bar Association also made a renewed call in favor of merit selection.
"For more than 65 years, the PBA has been on record in favor of an appointive system for state appellate court judges," PBA President Thomas G. Wilkinson said in a statement. "The selection and appointment of judges should be based on experience and performance and not on ballot position, political party or effectiveness in campaign fundraising. A merit-based, appointive system of selecting appellate judges would help to get judicial candidates out of the business of campaign fundraising and politicking."
In the weeks before trial, Orie Melvin’s attorneys and the prosecution went back and forth on what evidence could be admitted at trial.
Orie Melvin first attempted to get Allegheny County Court of Common Pleas Judge Lester Nauhaus to throw out the charges against her, arguing they were a violation of the judiciary’s constitutionally mandated powers to self-regulate its members.
Orie Melvin argued the conduct she was charged with was related to internal court procedures banning certain political activity and therefore should be disciplined, if at all, through the court’s disciplinary mechanism. The judge disagreed and Orie Melvin’s fellow justices denied an emergency King’s Bench petition she filed seeking their approval of her motion to dismiss the charges.
In subsequent evidentiary motions, the prosecution successfully sought to block any attempts by Orie Melvin to paint this prosecution as one being brought for improper motives. There has been public tension between the Orie family and the Zappala family over the years and Allegheny County District Attorney Stephen A. Zappala Jr.’s office led the criminal prosecution against Orie Melvin and her sisters, Janine and Jane Orie.
Former state Senator Jane Orie was convicted in 2012 on 14 of the 24 corruption charges she faced related to using public resources for political campaigns. Orie was acquitted of the charges related to campaign work for Orie Melvin’s judicial races, but that was barred from evidence in Orie Melvin’s trial.
Vuono said it was important to remember that there is not a final judgment in place regarding Orie Melvin’s convictions.
"As a profession we are not happy to see one of our members, one of our members of our highest court, have these charges filed against her and have a jury find that she did violate the law," Vuono said. "It doesn’t reflect well on the judiciary; in particular, the numerous judges out there who do such a great job for us and have great integrity and take pride in the system and the way it works."
Senior staff writer Gina Passarella contributed reporting to this story.