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Nazareth, Pa., United States

Monday, September 17, 2007

Why Justice Saylor Should Not be Retained on Pa.'s Supreme Court

PACleanSweep, a reform movement that rose from the ashes of a midnight legislative and judicial payraise, is already urging "every Pennsylvanian to go to the polls on November 6 and cast a resounding NO vote in every one of these retention races." Although this is a knee jerk reaction, a judgeship has all too often been regarded as some form of divine right. Our judges are akin to the priesthood of the middle ages, a class apart, isolated and arrogant.

Don't take my word for it. Northampton County District Attorney John Morganelli says much the same thing. "If anyone tries to tell you that judges are apolitical, tell them to call me. In my 26 years as a practicing lawyer, I have learned that judges are probably the most political animals in the political and legal jungle. Not all of them, of course. But many come to their positions with the same prejudices and bias that we all have from our life experience. The donning of the black robe allows them to hide behind the law while forming their own ideas of how things should be."

On November 6, we will decide whether to retain Republican Tom Saylor on Pennsylvania's Supreme Court for another ten years. He's already in trouble. According to a Daily News poll, only 18% of the voters have decided to support him. Many voters, disenchanted by our state officials, remain undecided. The purpose of this post is to provide you with facts upon which you can decide whether Saylor deserves your vote. I can't give him mine.

What is the Pennsylvania Supreme Court?

Pennsylvania's Supreme Court is our state court of "last resort," consisting of seven justices who are initially elected to ten-year terms. Their annual salary is $175,236. The justice with the most seniority is chief justice, who's paid $180,336. Justices also have an unlimited expense account for judicial bottles of beaujolais. After their initial ten year term expires, judges are retained by a simple "yes" or "no" statewide vote. And so it goes until mandatory retirement at age 70. So far, only one justice has ever lost a retention election.

Voters historically pay little attention to appellate court judges, but the supreme court ultimately decides the most important questions, from how we're taxed to school funding to who dies in the death chamber. Death penalty appeals are mandatory. In most other cases, the state's high court can simply refuse to consider a case. And most appeals are rejected.

In 2006, the state's high court handed down only 258 opinions, or 43 per justice. That's under one opinion every week! And these guys have law clerks who do most of the writing.

Administratively, the supreme court is responsible for maintaining a single, integrated judicial system. It has supervisory authority over all other state courts. It currently is computerizing court records throughout the state.

Who is Tom Saylor?

Saylor, born in 1946, is a native of Somerset County. That's the rural western Pennsylvania county where hijacked United Airlines Flight 93 crashed on 9/11. No aristocrat, the young Saylor bagged groceries at the local A&P. His dad was a bookkeeper and his mom a school board secretary. After graduating from law school, Saylor worked in the DA's office and private practice until 1982.

Since 1982, Saylor has been entrenched in Harrisburg, the land of midnight payraises. He worked for the state attorney general, and then left for private practice at a capitol law firm. In 1993, he was elected to the state superior court. Just four years later, he became a supreme. At the time of his initial election, he was "not recommended" by the Pennsylvania Bar Association evaluation committee. This time around, the high priests at the PBA give him their blessing, for whatever it's worth.

Saylor has been married to the same woman for 36 years. He has two adult children, a Baltimore school teacher and an air force pilot. His financial disclosure reports reveal his only sources of income are his salary as a supreme court justice and his Fidelity investment. Like most of us, he has a mortgage.

Saylor's Mini-Scandals

Although Saylor's roots are rural, he has been a resident and "worker" bee in the land of midnight payraises since 1982. His years in Harrisburg appear to have infected him. Some of his extrajudicial antics might make you think he's actually a state rep.

Evidence of this first surfaced back in 2005, when it was revealed that Saylor was one of six justices who spent $164,000 in taxpayer money for expenses that extended from $1,766 to frame a picture to $85 for a bottle of wine. Over a six month period, Saylor billed taxpayers for 34 carwashes for his publicly supplied car. Legal Intelligencer columnist Howard Bashman never bought Cappy's feeble "high society" justification. He felt this propensity to run up the public tab, by itself, was a good reason to vote NO.

Saylor let voters down a second time in 2005, during a bizarre incident at Harrisburg International Airport. When initially searched, he was told he couldn't carry a small, Swiss-army style, knife onto the plane, but could store it with checked luggage. So what did he do? He hid the knife inside a shoe. For that little trick, he was ultimately fined $750 and named by TalkLeft as "Stupid Criminal of the Week."

Saylor's Payraise Dissent

Saylor's supporters are quick to note he is the sole justice who dissented from the judicial and legislative payraise that the boys in Harrisburg awarded to themselves. But he is the only justice facing retention this year. His vote is no surprise. During oral arguments on the case, he kept his mouth shut. His dissent is political expedience.

In five short pages, Saylor pretty much agrees completely with the 100-page Castille majority. He only dissents because, in his view, judges' pay hikes could not legally be severed from the raises lawmakers awarded to themselves.

Dave Ralis, at the time, made this comment: "[F]or that false show of dissent, Saylor's head deserves to be the first to fall from the chopping block. He was simply trying to make himself look a little better than the rest. But when you read what Saylor actually said, he managed to make himself look worse."

Saylor's Opinions Limit Privacy and Expression Rights, and Expand State Police Power

In a review of 174 opinions published online, I see no Great Dissenter, standing up against a reckless state legislature. What I see instead is a judge who has shown a tendency to limit individual rights, while expanding the state's police power. Duquesne Law Review, referred to in Saylor's own campaign site, shares this view.

Saylor penned the majority opinion that gives a constitutional kiss to the Big Brother practice of stopping motorists at highway checkpoints. In doing so, he ignored the "cold hard facts" showing these roadblocks are a colossal waste of time. In his dissent, then Justice Nigro noted "the substantial intrusion that those checkpoints impose on the lives of law-abiding motorists, who must often wait in the backlog of traffic caused by the checkpoints even before enduring the actual stop by police once they reach the checkpoint."

Saylor has accelerated Pennsylvania's slow slide into a police state, with a concurring opinion in another case involving the warrantless recording of telephone conversations. A druggie had allowed police to tape his conversations with his supplier, and the court ruled this supplier had no reasonable expectation of privacy. To three members of the court, this was a bad call. "Today the majority holds that the Pennsylvania Constitution affords no protection against the government listening to, recording and reporting the details of our private telephone conversations. By holding that we have no expectation of privacy in the confidential messages and conversations transmitted from our telephones, it has placed the freedom of every citizen into the hands of the law enforcement authorities. . . . Following the majority's analysis to its logical conclusion, there is no constitutional precept preventing the government from tapping any individuals phone line for any reason."

A final illustration of Saylor's "Big Brother Knows Best" attitude, is demonstrated by his restrictive attitude towards our most fundamental right - free speech. In Pennsylvania, more than other states, free speech has long had a special meaning. Founder William Penn had been prosecuted in England for the "crime" of preaching to an unlawful assembly. Pennsylvania courts have broadly interpreted free expression, even when it involves nude dancing. Saylor, standing alone, would give legislative bodies more latitude in regulating speech.

Saylor Has a Mixed Record on Pennsylvanians' Right to Know

On his campaign site, Saylor claims that, time and again, he has favored the right of the public and the free press to access government documents and records. In truth, he has a mixed record. He proudly points to a decision in which he ordered the public disclosure of an audiotape made played at a preliminary hearing. But he fails to tell you he refused to sanction disclosure of a telephone call made to a 911 center, reporting a local shooting. He also denied a request from two state legislators to examine an accounting report that formed the basis of a $145 million settlement in litigation against the state.

Saylor and Citizen Access

I am astonished that Saylor actually takes credit for his logically tortured dissents in Nader and Romanelli, Green party candidates who were removed from the ballot in 2006. Nader was so clear that the majority found no need for an opinion. The Commonwealth Court had already ruled that "the signature gathering process was the most deceitful and fraudulent exercise ever perpetrated upon this Court."

Saylor's dissent was clearly a jab at the Commonwealth Court. Was Saylor really motivated by an altruistic desire to enhance third party ballot access? Or was he trying to help fellow Republican Rick Santorum, who was twenty points behind Bob Casey in the polls?

On other matters, Saylor has been downright draconian about citizen access to the courts. When a group of citizens took Delaware County to court, forcing it to adopt is first ever storm water management plan, he penned the opinion reversing a court order authorizing attorney fees. In an eminent domain case, he argued unsuccessfully against paying off a landowner's mortgage interest in condemned property.

Saylor and Medical Malpractice

Saylor proudly announces the endorsement of the Pennsylvania Orthopaedic Society, who loves his stance on medical liability "reform," i. e., making it more difficult for someone to recover damages against a negligent physician. I thought it was up to the legislature to make decisions like that. Silly me.

Following the Money

As of mid June, Saylor's warchest was standing tall at $65,099.83. It will get a lot bigger as the election approaches. Most of his money comes from lawyers who practice before the court, doctors who want to put a stop to medical malpractice and the pro-growth Pa Future Fund. It's a cornucopia of special interests.


Although Saylor strikes me as a decent man, I believe we can do better on the state's highest court. From his disingenuous dissent in the judicial payraise to his Big Brother view of government, we will suffer the loss of more individual liberties if he remains on the bench. His long residence in Harrisburg, coupled with his willing participation in judicial excesses, reveal him as an insider. Final confirmation of his allegiance to special interests comes from his campaign treasury. I'm voting NO.


Julian Stolz said...

So Long Saylor!!

Anonymous said...

None should be Retained period.

Doesn't matter if they were good
or not!

Anonymous said...

Good research job, BO.

Anonymous said...

I believe these comments are nothing but partisan politics

Bernie O'Hare said...

Anon 5:30,

Actually, this post is the result of a lot of work. Too often, we vote in retention races without knowing the parties involved. I'm trying to get a better picture of each candidate.

With respect to Saylor, my bias is that of a liberal who believes in individual rights and is fearful that our courts are stripping them away. I'll give you that.

Early today, I wrote to Saylor's campaign camp, enclosed a link to my blog, and offered them the opportunity to submit an essay explaining exactly why Justice Saylor should be retained.

If his camp takes me up on that offer, I'll post it in its entirety, and as a separate blog.

Julian Stolz said...

Anon 5:30

Bernie is a liberal
I'm a conservative

It doesn't get less partisan than that.

Blue Coyote said...

My personal stance is that each branch of government should be treated equally. If the Legislative and Executive branchs of government must run in contested partisan elections, than why not Judges?

The rules of conduct for judicial candidates prohibit candidates from making "campaign promises" on particular issues or cases. Rarely do mudslinging and negative tactics common to other political campaigns come to the surface during contested judicial races.

All Pennsylvania Judges should run for six year terms, not unlike Magisterial District Judges, Philadelphia Municipal and Traffic Courts Judges. Treat all Judges equally.

If I happen to like a Judge, why couldn't I vote for him again.
And if I didn't, I'll vote for someone else. After the payraise debacle, it's time for another state constitutional convention. But that's only my humble opinion.

Bernie O'Hare said...

Blue Coyote,

I tend to agree. The retention method of selecting judges is broken.

Here's what PACleanSweeo tells us about the history of rentention and how it has worked out. "Pennsylvania's hybrid retention system was proposed by the constitutional convention of 1967-68 and was ratified by the voters at the primary election held on April 23, 1968. The judicial section of the state's Constitution was arguably the most hotly contested issue debated by the convention. . . .

Although many arguments were made in favor of a PBA plan to empower the Governor to initially appoint judges, the convention ultimately proposed to leave it in the hands of voters via competitive partisan elections. The PBA also suggested the retention election method of renewing judicial terms, which was adopted by the convention and ratified by the people. . . .

After nearly four decades, the retention system now has a history which the citizens of Pennsylvania can examine. In practice, the very nature of retention elections has tipped the scales heavily in favor of retaining members of the judiciary year after year."

Anonymous said...

Nice work, Bernie. A thoughtful and convincing deconstruction, but you had me at "Why".

Anonymous said...

BO you are tough! The guy reminds me of Marcus Welby MD. He could be anybody's grandfather. Your a hard man Bernie O!

Anonymous said...

Bernie says "Commenting is a privilege, not a right. I will delete anonymous personal attacks." Bernie makes at least one a day :):)

Bernie O'Hare said...

River, as I told you, you are not welcome here. If you have something to say, take it back channel.