[ News Article ]
Payback: Pennsylvania Justices Reinstate Judicial Raises
By Asher Hawkins
September 15, 2006
The Legal Intelligencer
In a 100-page decision sure to be welcomed by the state's benches, a five-justice majority of the Pennsylvania Supreme Court has ordered the reinstatement of the judicial pay raises repealed last year when voter anger erupted over the general pay increase engineered by the legislature last summer.
However, whether the ruling will be met with approval from the general public or by a new round of electorate ire remains to be seen.
Though the majority did rule in favor of their colleagues on the judicial pay raise issue, they also concluded that Dauphin County activist Gene Stilp had proved that the legislative unvouchered expense allowance provided for in the July 2005 pay raise legislation "represented a mid-term increase in legislative salary which clearly, palpably and plainly violated the [relevant] proscription" found in Pennsylvania's Constitution.
But they did not deem unvouchered expenses unconstitutional by definition, and in fact voiced support for the 20-year-old precedent that protects the controversial practice.
The majority's opinion was authored by Justice Ronald D. Castille, who assumed leadership over this spring's oral arguments in the underlying matters after Chief Justice Ralph J. Cappy, who lobbied in Harrisburg for the pay raises on behalf of the state's judiciary, vowed to recuse himself in those cases.
Castille was joined by Justices Sandra Schultz Newman, J. Michael Eakin, Max Baer and Cynthia A. Baldwin.
Justice Thomas G. Saylor, who faces a retention election next year, filed a five-page concurring and dissenting opinion in the matters.
The opinions deal with three closely related cases stemming from last summer's pay raise legislation, officially referred to as Act 44 of 2005.
Cappy and others had supported the legislation because it would have tied the salaries of Pennsylvania's judges, legislators and key elected officials to those of their federal counterparts, thereby obviating the need for the General Assembly to be involved in the state's elected-official salary scheme.
While the raises for legislative and executive branch officials weren't scheduled to take place until well into 2006, all state judges' salaries got upped immediately after the pay raises were approved by the Legislature in July 2005.
Act 72 of 2005, which came that November following intense criticism of various aspects of the pay raise bill's passage and ramifications, repealed Act 44.
That move prompted legal challenges from common pleas judges hailing from across the state. Two were heard by the Supreme Court: Herron v. Commonwealth and Brown v. Commonwealth.
The trial judges called attention to the fact that under Pennsylvania's Constitution, the salaries of judges cannot be reduced unless the salaries of all other "salaried officers of the commonwealth" are likewise diminished.
In turn, Herron and Brown were consolidated with Stilp v. Commonwealth, which involved a variety of constitutional challenges to the passage of Act 44 itself.
In his lawsuit, Stilp had specifically requested that the justices overrule the 1986 precedent allowing for unvouchered expenses by state legislators.
Further complicating the issues facing the high court was the fact that Act 44 contained a nonseverability clause designed to render all its parts void if even a single portion of it were deemed unconstitutional.
Below is a description of the careful course Castille and the other members of the majority navigated through those obstacles via the lead opinion:
The majority declined to enforce Act 44's nonseverability clause. Castille noted that the Pennsylvania Supreme Court has never regarded non-severability clauses "controlling in all circumstances." Enforcing Act 44's nonseverability clause in the instant cases, Castille wrote, "would intrude upon the independence of the judiciary and impair the judicial function."
Having paved the way for a picking apart of Act 44's provisions, the majority agreed with Stilp's argument that the legislation's unvouchered expenses allotment amounted to a mid-term legislative pay raise in disguise. But they declined to go against the practice in general, and chose to reaffirm the key Pennsylvania Supreme Court precedent on unvouchered expenses, 1986's Consumer Party of Pennsylvania v. Commonwealth. They also rejected Stilp's constitutional challenges to the manner in which Act 44 was passed by the Legislature.
Concluding that the majority of Act 44's provisions passed constitutional muster, the majority turned to the common pleas judges' challenges as to Act 72. Castille wrote that "merely because the General Assembly salutarily claimed it did not intend to interfere with the independence of the judiciary, that does not mean that the legislation must be deemed constitutional." The majority agreed with the trial judges that their salaries were unconstitutionally reduced by Act 72 after being increased by Act 44.
At the end of his opinion, Castille ordered the state's Treasury Department to reimburse the Pennsylvania's judges "for the unconstitutional diminution in compensation affected by Act 72."
In his separate opinion, Saylor reasoned that Consumer Party should be expressly overruled. He also wrote that Act 44's non-severability clause should have been deemed valid, thereby rendering the act void ab initio once its unvouchered expenses portion was declared unconstitutional. Pennsylvania's judges' salaries should go back to their pre-Act 44 levels, he concluded.
Stilp could not immediately be reached for comment yesterday afternoon.
John Krill Jr. of Kirkpatrick & Lockhart Nicholson Graham in Harrisburg, who represented the state Senate's leadership in the cases, had argued before the justices during the April hearings in Stilp/Herron/Brown that "Act 72 didn't discriminate against the court."
"Naturally, I'm disappointed that with respect to the judicial pay raises, the court did not adopt our position," Krill told The Legal late yesterday.
C. Clark Hodgson of Stradley Ronon Stevens & Young in Philadelphia, counsel for the leadership of the state House of Representatives in the matters, declined to comment on the decision.
Attorneys for the trial judges named as plaintiffs in Herron and Brown said they were pleased with the ruling.
"I'm very pleased with, and gratified by, the decision on two counts," said John Soroko of Duane Morris in Philadelphia, who represented the plaintiffs in Brown. "First, I think the court has carefully considered the legal issues before it and reached - on the law - the right decision.
"Secondly, the decision implements a program for judicial compensation which will better distance judges in the commonwealth of Pennsylvania from political concerns, and thereby promote even greater judicial independence."
Robert Heim of Dechert in Philadelphia described Castille's opinion as "very clear, very strong, and very sensible: I believe it's a good policy opinion because it reinforces and strengthens the separation of powers."
"I think it took some courage on the part of the court to come out the way it did, because I'm sure it expects to be criticized," said Heim, who worked on Herron with Nory Miller.
Marc Sonnenfeld of Morgan Lewis & Bockius in Philadelphia filed an amicus brief in support of the trial judge-plaintiffs in the matters on behalf of the Philadelphia Bar Association.
Alan M. Feldman, the bar's current chancellor, called the decision "a victory for judicial independence."
"Regardless of how the public may react [to the court's decision] . . . the court clearly applied a sound legal reasoning to reach the result," Feldman said.
But Duquesne University Law School professor Bruce Ledewitz called the majority's decision "a transparent and cynical judicial swindle" that marks a continuation of the justices' "pattern of being constitutionally finicky when it comes to their own interests."
Saylor's separate opinion, he said, appears to be a "symbolic dissent by a guy up for retention next year."
An Administrative Office of Pennsylvania Courts-affiliated group called the "Pennsylvania Commission on Judicial Independence" issued a statement explaining that the justices had "reviewed these cases under difficult and unusual circumstances."
In the statement, the group - which was created in October 2005 and includes judges, lawyers and legal scholars from across the state - argued that with its holding in the pay raise cases, the court had met its obligation to "render just and fair decisions in every case."
Gina Passarella contributed to this report.
This article originally appeared in The Legal Intelligencer and is republished here with permission from law.com.