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Saturday, November 19, 2005

Law - Another fascinating episode in Pennsylvania court's failed retention vote

The ILB has had several entries, including this one from 10/9/05 and this one from 10/5/05) on the failure of Pennsylvania's voters to retain one of two Supreme Court justices who was up for 10-retention via a "yes/no" vote. Voters were angry, according to reports, because the legislature had voted a middle-of-the-night pay raise for themselves and other officials, including the judges, and because they felt that the Supreme Court had pretty much over the years adopted a "hands off" attitude to the actions of the legislature.

Well, apparently seeing the writing on the wall, the Pennsylvania legislature has now repealed the pay raise. But that has only led to more controversy.

Indiana has a constitutional provision (Art. 7, sec. 19) that reads:

Pay. The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office. [my emphasis]
Pretty straight-forward. Pennsylvania has a similar, but slightly more complex, provision, at Art. 5, sec. 16(a):
(a) Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth. [my emphasis]
All this was prelude to this story Friday from the Pittsburgh Tribune-Review. Some quotes:
Law offices and judicial chambers across Pennsylvania are buzzing with strategy sessions about a legal challenge to restore the judicial pay raise that lawmakers repealed this week along with their own controversial salary hike.
Court officials predict a challenge will be filed either by a senior judge -- a retired jurist who still presides on an at-need basis and won't stand for a retention vote -- or by one or more judges from Philadelphia, where the cost of living made the pay raise a nonissue for many voters.

Duquesne University constitutional law professor Bruce Ledewitz, an early critic who questioned the constitutionality of the pay raise, said any challenge to the repeal likely would focus on a provision in the state Constitution that stipulates salaries for judges cannot be reduced without rolling back every salaried state officer's pay.

Lawmakers, hoping to put the unpopular issue to rest, structured the repeal bill to specify that the rollback generally applied to all salaried officers of the Commonwealth. But Ledewitz said that provision could be subject to the state Supreme Court's interpretation. * * *

Political activist Tim Potts, who launched the "vote no" campaign as part of a broader reform agenda, said a lawsuit to restore the judges' pay raise would be disappointing, but not shocking.

"It could work to our advantage. It's just something that will keep the issue alive longer and longer," Potts said. "What I can't imagine is that a group of judges would think they deserve a pay raise that was passed in an unconstitutional manner."

Duquesne's Ledewitz said there should be a lawsuit, because he believes the repeal violates Section 16 of the state Constitution -- the provision dealing with judicial compensation reductions.

"Violating the Constitution for a good cause is no better than violating it for a bad cause," he said.

Like Gene Stilp, the Harrisburg area activist who filed suit against the pay raise in Commonwealth Court, Ledewitz contends the only way to ensure that the Legislature refrains from using devices such as unvouchered expenses and conference committee bill swaps to advance controversial legislation without public comment is to have a court declare the July 7 bill unconstitutional.

"The great thing about finding the pay raise unconstitutional is that, if the pay raise was unconstitutional, the repeal bill is unnecessary," Ledewitz said.

Posted by Marcia Oddi on November 19, 2005 10:46 AM
Posted to General Law Related | Indiana Courts