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Pennsylvania Constitution in the News – 2012

The Corbett administration has refused to hand over all documents in a federal request for documents relating to the Voter ID Law and expresses concerns that the federal government has overreached its authority, according to Karen Langley of the Pittsburgh Post-Gazette. The Justice Department is reviewing the Pennsylvania Law for compliance with the 1965 Voting Rights Act. The day after the request, Carol Aichele, Secretary of the Commonwealth, indicated that the state would comply. The subsequent letter by general counsel, James Schultz, indicates his belief that the request may be politically motivated. Pennsylvania Balks on Fed’s Voter ID Bid Calls Request for Documents on Law’s Requirements Politically Motivated

Dean Ken Gormley, Duquesne University School of Law, was quoted in the Lawyers Journal on the issue of whether a decision by the State Supreme Court on the State’s Voter ID Law would have any bearing on whether the U.S. Department of Justice might proceed with federal lawsuit. He indicated that it was possible that such a suit could be brought under the Voting Rights Act, in which case the state does not receive the same deference as under the State Constitutional Provisions under which the suit in state court was brought. Local Legal Scholars Weigh in on Controversial PA Voter ID Law, by Tracy Carbasho
In a 5 to 1 opinion, the Court of Judicial Discipline has ruled that Supreme Court Justice Joan Orie Melvin will be suspended without pay, according to Paula Reed Ward of the Pittsburgh Post-Gazette. The Court found that Justice Melvin’s conduct was “so egregious” that she should not receive pay. Orie Melvin’s attorney argued that suspension of judges without pay is rare, and that the criminal charges were weak. Judge Curran disagreed and wrote that this was the only way to restore the public trust in the courts. Justice Orie Melvin should not get salary, judicial panel rules.

Dean Ken Gormley, Duquesne University School of Law, was quoted in the Pittsburgh Post-Gazette commenting on the appeal to the Pennsylvania Supreme Court of the denial of an injunction by the Commonwealth Court relating to the state voter ID law. He stated that if the court concluded that voters could be disenfranchised by the law, the State Supreme Court may postpone implementation of the law. Since the November election involves both state and federal elections, including the election of the President, the court may be more cautious. Pa. voter ID opponents appeal to high court

Dean Ken Gormley, Duquesne University School of Law, was quoted in the Pittsburgh Post-Gazette concerning the possibility of a 3-3 split on the Pennsylvania Supreme Court when the Court hears the appeal from the decision of the Commonwealth Court upholding Pennsylvania’s Voter ID Law. Dean Gormley does not expect the Court to be unanimous, but he points out that the justices can surprise you with how they vote. Voter ID appeal likely to be heard quickly by state Supreme Court: High Court Could Split Appeal, 3-3

In an editorial in the Philadelphia Daily News, the expected widespread effect of Pennsylvania’s voter ID law is discussed. Figures released in July reveal that over 750,000 citizens registered to vote in Pennsylvania do not have the required identification. State’s voter ID law could shut out over half-million citizens In an article in the Philadelphia Inquirer, Clara Ritger discusses plans for a new voter card, which would be available for those who are unable to easily get all of the documentation required for a non-driving-ID. Voters would still need to travel to a PennDot photo and license center to obtain this ID. Pa. officials to unveil new voter-ID card Hearings on the challenge to the law have begun in the Commonwealth Court. In an article in the Pittsburgh Post-Gazette, Karen Langley quotes Judge Simpson who expects the challenge to be appealed to the State Supreme Court for a decision well in advance of the November 2012 election. Judge Simpson expects that the Commonwealth Court will be able to make a decision during the week beginning with August 13th. Commonwealth Court opens hearing on Pennsylvania’s voter ID law

Democratic members of the state House and Senate, along with some Democratic country commissioners, and some private citizens have challenged the most recent legislative redistricting plan, which was approved on June 8, 2012, according to an article by Patty Yauger in the Herald-Standard. One appeal states that the new maps for senatorial districts “contain a significant amount of unnecessary county divisions,” which would not be inconformity with the State Constitutional requirement of only dividing a county when absolutely necessary. Kasunic joins House Democrats in redistricting suit

According to an article by Sam Galski in the Standard-Speaker, preliminary objections have been filed to a “declaration of taking” by the city of Hazelton in June. The city plans to use the property for a parking garage, but that would only take up a third of the property under current plans. The other two-thirds would be office and retail space. Counsel for the affected owner is arguing that the taking is unconstitutional because the plan does not comply with the public use requirement of the Pennsylvania Constitution. Greco Takes Dispute to Court

At the end of June, Senior Judge R. Stanton Wettick ordered that former Supreme Court Justice Sandra Shultz Newman must sit for a deposition in July by legal counsel for the First Judicial District’s legal malpractice lawsuit against Jeffery B Rotwitt, according to an article by Amaris Elliot-Engel of the Legal Intelligencer. Rotwitt is an attorney retained by the court system to search for building locations for the Philadelphia Family Court who ended up being on both sides of the transaction. In his order, Wettick cites a March 18, 2008 email from Newman to Rotwitt which says that her son should get credit for originating the project to Obermayer Rebmann Maxwell & Hippel, another defendant in the lawsuit. Wettick ruled that Newman is not entitled to a protective order from sitting for a deposition. Judge Orders Newman to Sit for Deposition in Family Court Suit According to an article by Craig R. McCoy in the Philadelphia Inquirer, Newman has decided to waive her claim of immunity, even though she still thinks she has it, and will answer questions concerning the building project. Former Justice Sandra Schultz Newman will answer questions about the Family Court building project

In an article in the Allentown Morning Call, Peter Hall describes the goal of a new law signed by Governor Tom Corbett that would allow prosecutors to use the testimony of expert witnesses to counter a defense in child sex abuse cases where defense attorneys try to create doubt about the veracity of victim testimony on the basis that the victim delayed in coming forward when the abuse first happened. Allowing expert testimony about the effect that abuse has on young children would help give voice to a victim’s claims that he or she delayed in coming forward because of the fear and shame associated with the sexual abuse. The Pennsylvania Association of Criminal Defense Lawyers has argued that the law violates the separation of powers clause in the Pennsylvania Constitution, which reserves the power of making rules for the courts to the judicial branch. Law gives prosecutors tool to explain victims’ delay in reporting sex crimes

In an article in the Widener Law Newsletter, Barbara R. Grimaud analyzes the likelihood of success in Robinson Township v. Commonwealth, the Constitutional challenge to Pennsylvania’s Act 13, which amended Pennsylvania’s Oil and Gas Act. She does not expect that the first count alleging that the General Assembly violated Article I, Section1 of the Pennsylvania Constitution will be successful given the strong presumption of the validity of legislative actions and the fact that municipalities maintain control over conditional uses. There is a possibility that the courts might find in favor of the municipalities on the second and third counts: that the General Assembly engaged in spot zoning by allowing gas drilling in any are regardless of the terrain or surrounding communities interests and that Act 13 prevents the municipalities from fulfilling their duties under the State Constitution of employing their police powers pursuant to the Municipalities Planning Code (MPC). With respect to the second count, spot zoning would result from the requirement of Chapter 33 that oil and gas activities are permitted in some districts irrespective of the use of the surrounding areas, and this would create an “island” that is “unjustifiably different from the surrounding land.” With respect to the third count, Act 13 requires municipalities to authorize oil and gas operation in all zoning districts. This conflicts with the MPC, which requires the needs and citizens and the suitability and special nature of the municipality be considered in the construction of zoning ordinances. Municipalities have the constitutional authority to act for the health, safety, and welfare of the public. The result would be that municipalities would not be able to fulfill their constitutional or statutory obligations. Constitutional Challenges to Oil and Gas Law Amendment (Act 13)

On June 21, 2012, the Supreme Court of Pennsylvania issued an order adopting and amending the Pennsylvania Rules of Criminal Procedure to include indicting grand juries as an option for courts in Pennsylvania. In order to proceed with an indicting grand jury, a court of common pleas will have to obtain written permission from the Supreme Court. In an article in the Philadelphia Inquirer, Craig R. McCoy discusses the reasons behind readopting indicting grand juries. Witness intimidation has become a serious problem in some areas, in particular, Philadelphia. The indicting grand jury has the power to indict a suspect, and can be used by the court for that purpose in the place of a preliminary hearing where witnesses would have to testify publicly. Witnesses would still have to testify at trial. Concerns have been raised by defense attorneys about the nearly unlimited extent of power that this may give the government in bringing a case to trial. Pa. high court clears secret grand juries
According to an article by Zack Needles of the Legal Intelligencer, a three-judge panel of the Pennsylvania Court of Judicial Discipline met in Harrisburg on June 12, 2012 to hear testimony on whether Justice Jane Orie Melvin should continue her paid suspension, or whether she should be suspended without pay. The panel did not make a ruling on the issue and deferred that decision. Another hearing will be scheduled, possibly later this month. There was not much in the way of testimony offered on Tuesday as the Judicial Conduct Board took the position that the current order should stand and counsel for Justice Orie Melvin urged to court to defer to the parties’ stipulation to that effect. The court indicated that despite of the parties’ agreement, the function of the court to protect the integrity of the state’s judicial system requires that it decide the issue. Orie Melvin’s Pay Still Up in the Air Following Hearing

On June 5, 2012, the state House of Representative Judiciary Committee tabled HB 1815, a bill that proposed an amendment to the Pennsylvania Constitution that would have changed the method of selection of judges in the state from judicial election to merit selection. Supporters of the merit selection of judges gained some momentum for their cause after judicial scandals like “kids-for-cash” in Luzerne County, according to an article by Zack Needles of the Legal Intelligencer. The events in May surrounding Justice Joan Orie Melvin’s suspension and the charges filed against her were very closely followed by the tabling of this bill. One supporter of merit selection suggested that one reason for this is that the legislators are suffering from “Orie fatigue.” So even with increased awareness of judicial scandals from these recent events, putting merit selection before the voters will not be moving forward at this time. The debate over which system of selecting the judiciary is best has been ongoing, but merit selection as a possible solution to recent scandals in the judiciary branch is not likely to be raised again for a while. State House Tables “Merit Selection” Bill Despite Recent Judicial Scandals
Two recently proposed amendments to the Pennsylvania Constitution address significant issues of taxation in the Commonwealth. On May 22, 2012, Senate Bill 161 was introduced. This bill contains proposed amendment that would which give the legislature the sole power to define what is a purely public charity for the purposes of exemption from taxation under Article VIII, Section 2 of the State Constitution. This bill is a response to the recent decision in Mesivtah Eitz Chaim of Bobov, Inc., v. Pike County Board of Assessment Appeals, __A.3d__, 2012 WL 1415770 (Pa. April 26, 2012) that applied the HUP test to determine that a camp was not a purely public charity. Institutions of Purely Public Charity Qualifications On May 30, 2012, House Bill 2300 was introduced. This bill contains a proposed amendment that would allow the General Assembly to authorize local taxing authorities to exclude 100% of the assessed value of family farms from property taxes. Currently, only 50% of the home’s median assessed value may be excluded. Bringing the Property Tax Issue Home, by State Reps. Ryan Aument and Bryan Cutler

On May 25, 2012, Bruce Ledewitz, wrote an op-ed for the Philadelphia Inquirer explaining why the recent suspension of Supreme Court Justice Joan Orie Melvin by the Pennsylvania Supreme Court violates the limits put on that court’s power in a 1993 amendment to the Pennsylvania Constitution. The constitution prevents the Supreme Court from overseeing judicial discipline and instead provides an independent judicial disciplinary system. Rather than waiting for that disciplinary system to make the final decision about suspension, the Supreme Court once again acted in contravention of the state constitution by disciplining a Justice, as they did in 1993 when they suspended Justice Rolf Larsen. So far, they have not assigned a “senior judge” to the position as they did in 1993. That would also be a violation of the Constitution, as this is a power that only applies to the lower courts. High court’s suspension of Orie Melvin is dubious

Numerous media stories appeared over the weekend concerning the grand jury presentment handed down on May 18 against Justice Joan Orie-Melvin of the Pennsylvania Supreme Court. Justice Melvin has been charged with several counts, including felonies, involving alleged political use of her office and staff. She has been suspended indefinitely by the Court.

On January 25, 2012 the Pennsylvania Supreme Court issued a 4-3 per curiam order rejecting the redistricting plan drawn by the Pennsylvania Legislative Reapportionment Commission. The order stated that the plan would be remanded to the Commission for revision in accordance with a full opinion to be later issued by the Court. On February 3, 2012, the majority opinion was issued by Chief Justice Castille. Justice Saylor issued a concurring and dissenting opinion. Justice Eakin issued a concurring and dissenting opinion. Justice Orie Melvin issued a dissenting opinion