Analysis

The state Supreme Court’s recent oral arguments in Philadelphia occurred during a tumultuous time for the court.

It was the first argument session since Justice Joan Orie Melvin was convicted on political corruption charges. It was also the first session since Justice J. Michael Eakin replaced Chief Justice Ronald D. Castille as liaison justice to the First Judicial District in the wake of a report alleging ticket-fixing in the Philadelphia Traffic Court — a report that also mentioned Justice Seamus P. McCaffery. McCaffery has not been accused of wrongdoing in the matter.

While it’s difficult to say precisely what, if any, effect recent events surrounding the Supreme Court have had on the bench as a whole, the recent oral arguments session did see some justices stepping into the spotlight more than they have in the past.

This was particularly true of Eakin, who during past sessions has typically interjected only sporadically.

During the arguments in Philadelphia, Eakin engaged in lengthy exchanges with counsel in all but a handful of cases.

Conversely, McCaffery was almost completely silent during the arguments.

His lone interaction with counsel came in Commonwealth v. Gary, in which the arguments centered on whether the court should adopt the federal automobile exception to the warrant requirement.

In that case, McCaffery asked Philadelphia Assistant District Attorney Grady Gervino why the court should adopt the federal exception when there appears to be no clear definition of "exigency."

Later, defense counsel Alan Tauber said doing away with the warrant requirement would make traffic stop searches easier for law enforcement.

"Is that a bad thing?" McCaffery asked.

Tauber said he didn’t feel that making it easier for law enforcement to conduct searches was worth the price of privacy.

McCaffery asked why the court should not adopt the federal standard considering how difficult it can be for police officers in rural municipalities to obtain a search warrant.

McCaffery said that while police backup can arrive at a traffic stop in a matter of minutes in Philadelphia, regardless of the time of day, more rural counties such as Jefferson, Tioga and Lycoming may only have one police cruiser on patrol in the middle of the night.

If that cruiser makes a traffic stop and the officer or officers have probable cause, it could be a "long, distended process" to call for backup and obtain a warrant, McCaffery said.

"As the chief and some of my colleagues have pointed out, why not? What’s the harm in adopting federal standards?" McCaffery asked.

Beyond that exchange, however, McCaffery remained mum, leaning back in his chair for the bulk of the arguments.

But for all the turmoil currently surrounding the court, including Castille’s recent statements to the press questioning the propriety of referral fee payments collected by McCaffery’s wife and chief judicial aide, Lise Rapaport, the interactions between all of the justices in the courtroom over two days of arguments March 5 and 6 were largely jovial.

For example, Castille began the second day of arguments by acknowledging the attendance of an Advanced Placement U.S. government and politics class from Lincoln High School in Ellwood City, Pa., where Justice Debra Todd attended high school.

"What was that? Ten years ago or 12 years or something?" Castille asked Todd.

"It was a short while ago," Todd joked, amidst laughter from those in attendance.

Later that day, during arguments in Norfolk Southern Railway v. Public Utility Commission, in which Justice Max Baer asked a number of questions in an attempt to clarify the Public Utility Commission’s position, Castille stopped Elizabeth Januzzi, counsel for the PUC, in mid-sentence.

"Could you sum up? You’ve made your point well — or Justice Baer made it pretty good," Castille joked, as Baer laughed.

But not every exchange between the justices was as pleasant.

Baer, who is typically one of the most vocal justices during oral arguments, engaged counsel multiple times in nearly every case.

On March 5, during arguments in Commonwealth v. Raban, a case that centered on whether Pennsylvania’s Dog Law, a criminal statute, creates a strict liability offense, Castille cut off Baer after Baer talked over Eakin.

"There’s a question on the floor," Castille told Baer, before giving Eakin an opportunity to finish his thought.

"Chief — er, Justice Eakin," Castille said.

The following day, during arguments in Roethlein v. Portnoff over whether state law provides a cause of action to taxpayers who sued a law firm for the administrative costs they paid the firm for collecting real estate taxes on behalf of municipalities, Baer asked Michelle Portnoff and her firm Portnoff Law Associates’ counsel a question but cut her off almost immediately.

Castille then interrupted Baer again.

"Can we hear the answer before — please, justice," Castille said to Baer.

"I thought she was asking me to clarify the question," Baer replied.

The day before, during arguments in In re Thirty-Third Statewide Investigating Grand Jury over whether the Pennsylvania Turnpike Commission is entitled to attorney-client privilege as a state agency, Castille asked James P. Barker of the Pennsylvania Office of Attorney General if he would still oppose attorney-client privilege for communications between the commission and outside legal counsel as opposed to its in-house attorneys.

Barker said there would be some instances where the OAG could nonetheless access the attorney communications, saying the "overriding interest is the public good."

"Well then, if I may, you have just emasculated all attorneys for the commonwealth," Todd responded.

Eakin then offered a hypothetical in which, under Barker’s argument, he seemed to think the OAG would be able to compel production of the communications.

"I sue the commission because my E-ZPass doesn’t work," Eakin started, thrusting his fist in the air at the mere thought of such a frustrating situation.

Todd rolled her eyes and threw her arms up in the air, saying her colleague was "drawing a connection between the civil and criminal sides" that she didn’t see a basis for drawing.

But court watchers warned against reading too much into the way the justices interacted with each other during the arguments session.

Both Lynn A. Marks of Pennsylvanians for Modern Courts and Rob Byer, head of Duane Morris’ appellate practice, said that if recent events have caused any type of shift in the high court’s dynamic, it would be more likely to manifest itself in the court’s administrative functions than in its adjudication of cases.

Byer recalled a period when there was tension between former Chief Justice Robert N.C. Nix and Justice Rolf Larsen, but said those issues were never apparent in the court’s rulings during that time.

"There were times when the court would make decisions and Larsen would join in Nix’s opinions and vice versa," Byer said.

Byer added that the event that’s more likely to have a noticeable effect on the court as a whole is the eventual replacement of Orie Melvin.

"So much depends also on who the governor appoints to fill the Orie Melvin vacancy," Byer said. "With a seven-member court, it’s a small group. It’s really like a family."

For any observers who may have hoped to see fireworks during oral arguments in Philadelphia, Castille may have summed up their feelings best with his closing line of the second day’s arguments.

"Is that it?" he asked.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI. •