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Nazareth, Pa., United States

Wednesday, September 19, 2007

Retain John Musmanno, The Superior Court's Long Ball Hitter

Yesterday, I told you I'll be voting against the retention of Superior Court Judge Joan Orie Melvin. One of many reasons for this is that she ignored her responsibilities as a common pleas judge to run for a seat on the superior court. An investigative report by a team of eleven reporters at the Post-Gazette, revealed that her courtroom was "virtually shut down . . . for several weeks" while she "spent numerous weekdays out of town campaigning."

Melvin was a civil judge at that time, and the caseload was administered by then civil administrative judge John L. Musmanno. He was running for a seat on the superior court, too. But unlike Melvin, he spent little time travelling during the campaign, and attended to his judicial duties.

Who is John Musmanno?

PaProgressive tells us Musmanno "grew up in public housing in a family of modest means. His is another American success story, someone who made something of himself and now dedicates his life to serving others. He attended college because he won a caddie scholarship and worked his way through Washington and Jefferson College. He graduated Magna cum Laude and was a member of Phi Beta Kappa. He went on to the Vanderbilt University School of Law where he earned his J.D. While there he was Assistant Editor of the Vanderbilt Law Review (a high honor)."

He was first elected as an Allegheny County judge in 1981. In 1995, he sought the Democratic nomination for the supreme court, but was defeated by Russell Nigro, who ultimately went on to win a seat in the general election. Ironically, Nigro became the first sitting justice to lose his retention bid last year, a fatality of voters indignant about the legislative and judicial paygrab.

Musmanno was elected to the superior court in 1997. If retained, he will be forced to retire in 2012, when he reaches mandatory retirement age.

Unlike Melvin or even Saylor, Musmanno's exrtrajudicial activities are low key. He doesn't try to sneak pocket knives onto a plane after being told he can't do so. He does not engage in five years worth of lawsuits, in two different states, over harmless anonymous comments posted on an Internet gossip site. I have spoken to some lawyers, who use words like "even" and "consistent" to describe this Pittsburgh jurist. PaProgressive, who has met with Musmanno, says this, "It's nice to speak with a Judge who doesn't think the world revolves around him, as I sometimes see on the local level." His self-effacing personality is evident in a video posted by Pennsylvania Democrats.

After reading several of his opinions, I have my own term for Musmanno - long ball hitter. He sits quietly in the superior court dugout until something really important is pitched at the court, and then he swings away with excellent opinions.

Musmanno is the Superior Court's Long Ball Hitter

I have reviewed Musmanno's eighty-nine online opinions. Seventeen of these are concurring or dissenting opinions. He appears to be the court's designated hitter - the judge who tackles the tougher cases.

1) A Case for King Solomon. - One of the more interesting of these cases involved an alienated couple arguing over who was entitled to their dead son's ashes. A judge, who must have been familiar with only half of the King Solomon tale, ordered the ashes to be divided and placed in two separate urns. Musmanno ruled that "the trial court abused its discretion in using its equitable powers to override the desires of one of the next of kin as to the division of Son's remains."

2) A trend that favors middle class consumers against corporate giants. - Musmanno's decisions demonstrate a keen understanding and appreciation of ordinary consumers who are often victimized by increasingly big businesses.

Cable giant Comcast was a defendant in a class action suit be subscribers forced to use remotes and cable box converters that were totally unnecessary. Its lawyers pointed to one of those fine print arbitration clauses in its contract with consumers. They even persuaded a Philadelphia court to condemn cable customers to the bottomless pit of arbitration. But not Musmanno. He quickly noted that these clauses are unenforceable when they are jammed down someone's throat in an adhesion contract.

He also ruled against H & R Block. Angry customers, who learned their "rapid refunds" were actually high interest loans, sued in a class action. A Philadelphia judge had decertified the class, and Musmanno easily navigated through complicated rules of appellate and civil procedure to determine that the trial court had acted improperly.

In a products liability case, Musmanno ruled that the implied warranty of merchantability extends not just to the person who bought the product, but to members of her family as well. In the particular case involved, a two year old boy snatched a lighter from his mother's purse, and started a fire that burned down a home and killed three people.

My favorite of these consumer cases is the Godiva chocolate case. A shopper at a local department store saw an open box of Godiva chocolates, and helped herself to a sample. "Well, one won't hurt me." A few minutes later, she came back and helped herself to a second.

That second sample hurt. She was seized by a department store narc, dragged off to a "loss prevention" office, handcuffed to a table, searched, presented with an admission form, and told to confess her heinous crime. She was handcuffed for nearly an hour until admitting, in writing, that she ate two pieces of chocolate she thought were free.

Here's how Musmanno reacted. "[The department store's] continued detention of [the shopper], in handcuffs, exceeds all bounds of decency and we express our outrage at such a procedure."

3) Musmanno and the Constitution. - In addition to his consumer cases, Musmanno has weighed important principles of double jeopardy and has balanced a jury's privacy rights against the media's need to know their names and addresses.


Musmanno is a judge. He served a full term as a trial judge before even thinking about an appellate court. When he did seek a seat on the superior court, he attended to his judicial duties first, unlike some of his colleagues. He has consistently tackled the Superior Court's more thorny legal questions, but his opinions demonstrate that he still understands what life without a black robe is like. I will vote to retain Musmanno.


Anonymous said...

I'm still voting "no" because none of them should be retained until a better system is implemented.

Musmanno appears to be a good guy, but who really knows, given the stealth judicial campaigns currently dictated by state law? With due respect to your careful research, Bernie, I'd like to hear the guy's thoughts spoken by the guy.

The system is gamed against voters and must change. Until then, "no."

Bernie O'Hare said...

Anon 7:44,

I don't think retention should be taken for granted and your point about the system being gamed against voters is a good one.

Of course, the judges answer that by saying, "Appoint us." But that just removes the politics to another level.

I think that when you have 15 superior court judges, they should be elected regionally instead of statewide. In addition, lawyer contributions should be limited.

Anonymous said...

I think this "just vote no" stuff is crap! So is "vote out" any and all other incumbent nonsense, in my opinion.

I also think some people leading the charge on these issues just promoting themselves. Remember the guy who led the pay raise issue then immediately quit to run for office?

"We" are responsible to do homework on Judge retentions "and" promote change within the system if we desire it.

Homework is easier these days with Internet and easier still when someone like BO has already done some for us.

I agree some Judges are worthless hacks, but there are many good ones, exactly same as with "any" elected or appointed positions in society.

We shouldn't take the easy way and throw the baby out with the bath water, especially based on ONE issue campaigns! larry@kisslinger.com

Bernie O'Hare said...


I don't like retention elections. With the notable exception of Justice Nigro, they're shams. No effort is made to educate voters. And for the statewide offices, most voters just don't know the candidates.

I myself did not know about Melvin's ridiculous 5 yr. attempt to intimidate an Internet critic with a slapsuit, until I started masking a concerted effort to educate myself.

What's sad is that we have bad judges like her sitting on an appellate court.

That's why I think we need to reform the way we pick judges. Now I don't believe in merit selection, because that just removes the politics to a different level, where elitists at the PBA will decide what's best. On the other hand, I understand that jobs should be free to write opinions that follow the law instead of the political winds.

I think they should be elected regionally, not statewide. I think lawyer contributions should be banned. I also think they should be term-limited. Blue Coyote thinks the should stand for election once every six years. I'd agree with that, but would want them term-limited to two terms.

Thanks for your thoughtful comment.

Anonymous said...

I totally agree with all you say!

However, emphasis "should" be on making changes like the ones you suggest. Merely throwing ALL the judges out changes nothing.

Pressing appropriate elected officials with ideas to propose into law, is the better way to go, is my opinion. larry@kisslinger.com

BethlehemDem said...

My biggest problem with the retention system is the restrictions that are placed on the sitting judges with regard to campaigning. I understand the need to limit there fundraising activities, however judges should speak on the issues and tell the voters why they deserve to be retained.

At least Pa. is not like New Jersey where judges are appointed by the Governor and are usually attorneys who donated money to a campaign.

Bernie O'Hare said...

Actually, that restriction on free speech was challenged and found unconstiutional. Judicial canons have been eased so that candidates can now express their opinions on different issues. But they still can't say how they'd rule in a given case.

Superior Court Judge Correale Stevens is one of those campaigning against illegal immigration, for example.

Anonymous said...

If there was any - any - movement afoot to fix the judicial retention system, I'd defer to LK, and not advocate, "just vote no."

But there's not. Not even a little one.

"Throw The Bums Out" elections are as American as apple pie. And given re-election and retention rates in the mid- to upper- 90% range, it's refreshing to see them when they infrequently occur.

I'll acknowledge that some decent public servants lose their jobs in this sledgehammer approach, but we're talking about lawyers here. I don't expect to see any of them sleeping under bridges anytime soon. And as far as attracting candidates, I can't remember the last time nobody ran for a statewide open seat. Quality may be another issue, but if we had better quality, we'd not be having this debate.

river said...

someone said..." however judges should speak on the issues and tell the voters why they deserve to be retained". I do not feel there are issues for a judge. He must follow the law which is written in black and white and make a ruling based on that.

BethlehemDem said...

Judges, particularly appellate judges, need to interpret laws and make ruling. It is not always black and white. While a judge cannot say how he would rule on a case, he can state how he interprets certain laws and what his legal philosphy is. (ie: Strict constructionism, textualist) This could get into a huge debate debate about judicial interpretation and judicial activism, so I will stop there.

I should have been more explicit in what I meant about issues. Sorry.

river said...
This comment has been removed by the author.
river said...

I am afraid that if judges have to depate, the first questions they will be asked will be about abortion or gun control. I watch PCN a lot and they have the high court appeals on it now and then. It has quite a variety of topics and is very interesting. Also a funny story. I had to go to the federal court in Philadelphia for jury duty about 10 years ago. I know back then in NC court you had to wear a suit and tie. So I arrived at the Federal Courthouse in a suit tie and a vest. People entering in the line... a guy ahead of me had a large knife, another had a handgun that he had to check and leave at the front till he left the building. Anywas I was sitting ing the Jury room with my suit and tie next to a guy in tennis shoes and a Tee shirt with coffee dribbles all down the front. All courts are not equil! :):)

Julian Stolz said...

Sorry Bernie gotta disagree with you here.

Not because he's a good guy, but because we've got to clean the slate.

PA Judicial Cleansweep 2007!

See you tomorrow night.

Pie at the tic tock afterwords?

Glenn Eckhart will be joining us.

So will my girlfriend.

Bernie O'Hare said...


I'll definitely be looking for you. TicToc sounds great, depending on the length of the meeting. I've got to get back and write it up.

J. SPIKE ROGAN said...

the story of his rise from the housing life sounds like someone stole it from TV's Judge Mathis.

I did like the Godiva story.

Bernie O'Hare said...

That's my favorite.

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