Now Appearing at Mellow Theater - The Superior Court!

P.J. Cory Stevens

Pennsylvania's busy Superior Court will hold a community session of regular argument court at the Mellow Theater, 501 Vine Street, Scranton on Tuesday, March 13th at 9:30 and Wednesday, March 14th at 10 am.

The Superior Court is a 15-judge appellate court which hears all criminal and most civil case appeals from the trial courts in each of Pennsylvania’s 67 counties.

“While our regular courtrooms are in Philadelphia, Harrisburg and Pittsburgh, our judges are committed to taking court sessions into various counties, law schools and have even held session in a high school setting,” according to President Judge Correale Stevens. “All our court sessions are open to the public, and the Mellow Theater is a beautiful facility. We will remain available after the cases are heard for a question and answer period about the court and its decision-making, especially if there are students who attend, “ Stevens added.

Hon. Jack Panella

The Superior Court hears about 8,000 appeals a year and decides cases in panels of three judges, assigned randomly by the Court Prothonotary. Each judge must hand down two opinions per day, just to keep up. Most cases are decided on the legal briefs and transcripts, but oral argument is scheduled at various times throughout the year, during which attorneys are peoppered with questions. In addition to hearing appeals, Superior Court judges have other responsibilities, too. They include making certain law enforcement have probable cause before granting permission to wiretap suspected criminals, volunteering to give legal education seminars to lawyers’ groups and speaking to civic organizations as well as various administrative duties.

The three-judge panel hearing cases on Tuesday include President Judge Cory Stevens (our friend in nearby Hazleton), our very own Jack Panella and Tioga County's Sallie Updyke Mundy.

President Judge Stevens is a former member of the Pa House, Luzerne County District Attorney and Luzerne County Court of Common Pleas trial judge. He was chosen by his colleagues to be resident Judge in November, 2010 and regularly volunteers for legal seminars and the Pa Bar Mock Trial program.

Judge Jack Panella is a former Northampton County Court of Common Pleas trial judge who is treated like a long lost son whenever he drops by the courthouse. He's also former President Judge of the Court of Judicial Discipline. He has authored several bench books to aid the judiciary during trials. In 2002 he was selected to visit American troops stationed in Bosnia. He's also a damn good runner.

He's the only judge to ever find me a credible witness. I carry that finding in my wallet, just in case.

Hon Sallie Updyke Mundy

Judge Sallie Updyke Mundy has extensive experience in both civil and criminal law as a former trial attorney and public defender. She volunteers for legal seminars to update lawyers on appellate practice and serves on the Court Technology and Legislation Committees.

On Tuesday, the Court will hear cases involving a termination of parental rights, a third degree murder conviction, landlord-tenant issues, the legality of a police search and a juvenile delinquency case. Case summaries will be provided to all attending so they can follow along with the legal arguments.

Pennsylvania appellate court judges are chosen by the people, and we do our best to decide all cases in a fair, impartial and timely manner,” Stevens concluded.

Superior Court Judge Jack Panella - An Appealing Appellate Jurist

I had a rare opportunity to interview Superior Court Judge Jack Panella on Friday. He was at the courthouse to deliver copies of his Sexual Violence Benchbook, and we sat down for lunch in the cafeteria.

Panella is like a rock star at the Northampton County courthouse. People warm up when they see him, and he responds in kind. "I miss everyone here so much," he told me and everyone else.

That's one little way in which Judge Panella and I are different. When people ask him how he's doing, he answers "I'm the happiest person in the world." When they ask me, I respond "None of your frickin' business."

Although I never noticed it at the time, there was definitely something wrong with my law school graduating class. We were a motley crew. One of my classmates just gave up his license one day and started searching titles in Lehigh County. And he had nothing to worry about because he worked for the Disciplinary Board. But his fellow grads did, and were reeled in, one by one. At least ten of us, including me, have been disbarred or suspended over alcohol and drug abuse.

The most nefarious of us all was then state senator Budd Dwyer. When this state legislator attended law school, he never looked down his nose at us. He was a little older and always dressed in suit and tie, but I remember him as a kind and slightly quiet guy. He helped a lot of us land part time jobs in the land of midnight payraises. I worked for the state PUC and AG, and had absolutely no idea what I was doing at either place, but the money was good. After we had all graduated and were off committing felonies, misdemeanors and malpractice, Dwyer became state treasurer. But he was as crazy as bed bugs, just like the rest of us. He's the dude who blew his brains out before five television cameras one day instead of pleading guilty to one count of bribery.

He went out with a bang - literally.

Needless to say, my former law school does not solicit my class for contributions.

Just as my group was a collection of misfits, there's an occasional crop of lawyers who represent the very best in that profession. After graduating, they teamed up and drove to Philly daily one summer in the same shitty car to study for the bar, scarfing hot dogs for lunch if they had money. This distinguished cadre of young men included John Morganelli (Northampton County DA), Jay Leeson (Bethlehem City Council), Phil Hof and Jack Panella (Superior Court Judge). They were all admitted to Northampton County's Bar together.

In this elite group of barristers, Panella excelled. He served as an assistant county solicitor, and was soon named County Solicitor, back when Gene Hartzell ran a very tight and happy ship in Northampton County. Panella was the youngest person ever named as the county's top legal eagle. He then became the second youngest person to serve as a Northampton County judge, being appointed to the bench in 1991.

During his days as a common pleas judge, Panella fell in love with running. "It saved my life," he tells me. If you run 5 ks anywhere in this state, you might be running with him. I remember driving with him and a collection of other lawyers like Mike Vedomsky, Danny Cohen and Phil Hof to run a ten mile race in Brooklyn one Sunday. Panella may have been a judge, but that day he was a runner.

Although he could stay on the bench forever in Northampton County, Panella is a scholar. So he decided to buck the odds and run for Superior Court. Amazingly, he won, and in 2004, he became an appellate judge.

Of fifteen superior court jurists, only Judges Jack Panella (Lehigh Valley) and Corry Stevens (coal regions) are from the eastern part of the state. "We need more balance," laments Supreme Court Justice Seamus McCaffery.

Being a superior court judge is a great honor, but it's also a lot of work. The judges literally ride the circuit. They spend one week each month in Pittsburgh, Harrisburg or Philly, sitting in three-judge panels to listen as lawyers argue that some lower court committed a legal error.

That's why the superior court is often called the court of second guess. It's where most appeals from a trial court are heard. The vast majority of the 8,201 appeals filed last year, were from criminal convictions. Because the supremes are so reluctant to hear appeals, the superior court is usually the last bastion of hope for those seeking justice.

Panella told me he must write at least one opinion every day just to keep up with the workload. To give you an idea of what's involved, you must first sit down and read transcripts, a lower court opinion and the briefs filed by all sides to a dispute. Then you have to research the law yourself. It's almost as hard as blogging!

Panella has one piece of advice for lawyers arguing in the superior court - don't try to predict the outcome. "I'm almost always wrong when I try to guess how judges are going to decide something."

Over the past three years, Panella has been writing a book for judges and lawyers - a benchbook - at the request of the Pennsylvania Coalition Against Rape. As he explained things to me, a similar benchbook has been used by Michigan judges, and they reported it is very helpful. So Panella undertook the daunting task of assembling caselaw and statutes concerning the panoply of sexual offenses and their consequences. Each judge will be provided with both a CD and a three ring binder benchbook that can be easily updated as the law evolves. This enables a judge to make a quick ruling from the bench when a legal issue arises. Because cases involving sexual offenses are sensitive, a handy reference like this is long overdue.

During the course of writing this tome, Judge Panella said his biggest surprise was how quickly Pennsylvania legislators react when someone points out a problem. "Nobody ever says anything nice about them. Regarding this area of the law, the legislature is very responsive."

Now that Panella has completed his three-year project, I hope this Lehigh Valley judicial scholar gives some thought to running for the state supreme court, which would benefit from his combination of intellectual acumen and ready accessibility.

People said he was too young to be county solicitor. He wasn't. They said he was too young to be a judge. He was one of the best. They claimed no Lehigh Valley resident could get elected to a state appellate court. He proved them wrong.

I hope Judge Panella considers the state supreme court, not for his sake, but for ours.

Should We Just Say No to All Judges Seeking Retention?

PACleanSweep: "PACleanSweep is urging every Pennsylvanian to go to the polls on November 6 and cast a resounding 'NO' vote on every one of these judges who accepted the pay raise."

Bill White: "Our appellate judges have made it clear that when the interests of the legislative bosses or the judges' own wallets are involved, the Pennsylvania Constitution comes in a poor second. That -- and the general level of mediocrity in our state courts -- is why I intend to vote 'no' in any retention election for a state judge. If you know enough about one of these individuals to separate the wheat from the chaff, fine, but when in doubt, kick 'em out."

Morning Call: "Our view is that while a protest against the Supreme Court, which has not been an effective check on the abuses of the General Assembly is understandable, a top-to-bottom 'no' vote is irresponsible. Displeasure with the Supreme Court shouldn't indiscriminately be translated into displeasure with the other appellate courts. Voters have a duty, hard as it is, to evaluate whether the other jurists should continue serving. Most do. Some don't."

I agree with voting "no" as a general default position. Our judges, on all levels, have forgotten that their right to sit in judgment of others comes from the people. It's not some sort of divine right bestowed upon them as superior people. But here's my problem. I've news-googled every appellate judge up for retention, and have yet to see a single article from the mainstream media that profiles any of them. Without any help, how can anyone "know enough about one of these individuals to separate the wheat from the chaff?" Instead of just telling us to vote against everyone, wouldn't it make more sense to actually inform the reader?

When the MSM refuses to supply us with the information on which we can make a meaningful decision, it's telling us to vote NO. That just opens the door for Governor Rendell to appoint another judge for every one we reject.

On the left sidebar, I have links to blogs about appellate judges up for retention. I tried to research as much as I could about each, spoke to lawyers who appear in front of them, and read ten opinions by each jurist. Yet, proud as I am of this work, these judicial summaries lack the objectivity, credibility or reach you'd find in a news account.

Justice Thomas Saylor - No!: 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.

Judge Joan Orie Melin - No!: Melvin might be a gifted politician, but she's not a gifted judge. Her attempt at legal intimidation could be expected from a major corporation, but a slapsuit from a sitting judge is bizarre. And her second suit over the payraise is pure grandstanding. Her money gathering, especially from lawyers, is obscene. And her contrarian opinions reveal an utter lack of compassion.

Judge John Musmanno - Yes!: 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.

Judge Correale Stevens - Yes!: While Judge Musmanno may be the superior court's long ball hitter, Stevens is their utility player. Day in and day out, he has been a workhorse. Not the usual judicial elitist, he is responsive to the people, has conducted town halls, speaks out on issues and even answers email. His decisions are conservative, but well-reasoned. I will vote to retain Stevens.

Judge Bonnie Leadbetter - Yes!: On her web site, Leadbetter makes one request. She asks voters to judge her "on what I have done and not on what others may have done." I'll be voting to retain her.

Judge Bernard McGinley - Yes!: So long as you keep Judge McGinley away from anything to do with sports, he's a very clear and fair-minded judge. Lawyers who practice before him seem to like him. The Pa. bar makes this observation, "He treats lawyers fairly and courteously and is held in the highest regard for his legal knowledge and analytical abilities." I'll be voting to retain him, but I don't think he can count on too many votes in Eldred Borough.

Judge Doris Smith-Ribner - Yes!: Despite her individual desire for privacy, Smith-Ribner has been a judicial voice for state reform. She promotes open records, detests de facto racial segregation, refuses to go along with municipalities that abuse condemnation powers, upholds campaign finance limits and believes you have a right to know that your vote counts. It's ironic that those who promote much-needed state government reform, would advocate her ouster.

Did Superior Court Judge Stevens Cross the Line?

When I told you about Superior Court Judge Corry Stevens on Monday, I mentioned that he is unafraid to voice opinions, even on hot-button, political issues. That certainly makes him different from most judges. He does have one powerful ally, Supreme Court Justice Max Baer. "I think you have a right to know what I feel, what I believe in, who I am."

Yesterday, Stevens joined forced with other foes of illegal immigration, including our very own John Morganelli. They want new state laws or something. Needless to say, lots of folks are outraged that a judge would dare state his views.

Capitol Ideas' John Micek tells us Stevens may have gone too far. "Once legal ethicists and others picked their jaws up off the floor, they said Stevens, 60, probably went sailing over the line with his public comments."

But did he?

In 2002, the U.S. Supreme Court ruled that a judicial candidate has a first amendment right to speak out on issues that might come before the court. Pennsylvania thereafter relaxed judicial canons, allowing candidates to “announce” views on disputed legal or political issues. It still prohibits statements that “commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

Even in this watered down version, this canon has been enjoined by a federal district court. It is unenforceable.

That's why Stevens can speak, and we are the beneficiaries. Tim Potts at Democracy Rising has stated this injunction "means [judges] will be able to respond to a lot more issues than in the past. As long as we're going to have elections, they ought to be meaningful. Public confidence in the courts is [already] abysmally low."

Philadelphia lawyer Robert Nix, who just happens to chair the state Republican Hispanic Coalition, is among those outraged, and he intends to file a complaint with the Judicial Conduct Board.

Good luck with that one, Bob.

Now don't get me wrong, I get queasy when I hear undocumented workers scapegoated as the cause of all our problems. I disagree completely with both Stevens and Morganelli. But I think it's important that voters know who they're voting for, and I give Stevens credit for opening up.

Update: Stevens Defends Capitol Appearance. - In today's Hazelton Standard Speaker, Judge Stevens defends his appearance at a capitol press conference on Monday. Here's his explanation.

Kindly note I would like to clarify my visit to the Capitol on Monday, which was the result of an invitation to a press conference concerning the release to the public of a report on crimes committed and allegedly committed by people in the country illegally.

My comments were confined to a federal constitutional issue: federalism. In response to citizen complaints about the federal policy of non-enforcement of immigration laws, I suggested a possible solution would be to amend the federal immigration law to allow local governments to enforce the law.

Specifically, I spoke about providing due process rights in that county courts would be empowered, but not required, to hold deportation hearings. Thus, local communities which have serious problems with illegal immigration would have the tools to enforce laws that are already on the books.

Some present have chosen to characterize the event as some type of “rally” and have criticized me for being there.

Under current law, judges are permitted write, lecture, speak, even attend legislative hearings on just about any subject. I explained the rules and my reason for being present, and confined my remarks to the issue of sharing enforcement powers. As a former legislator, district attorney and trial judge, I was careful not to discuss anything involving the Pennsylvania legislature or executive branch.

Interestingly, even if the event were a “rally”, I would still have been able to attend and speak.

For example, all judges running for the open seats and the retention seats have appeared at “partisan” functions, namely the Democrat and Republican State Committee meetings.

And at those meetings speakers occasionally criticize the other political party, that’s part of our governmental process. By the judges being present, or even sharing the dais with those speakers, it doesn’t mean the judges are supporting or endorsing what is said. There are no prohibitions from those judges being present at the political party gatherings or even from speaking at those gatherings, in a year when those judges are up for election.

I can certainly understand that there is room for disagreement on the merits of what I said, the issue of federalism and allowing local governments more enforcement powers.

What concerns me is that there is the appearance now, from the news reports, that I had no right to discuss a federal constitutional issue not in any way before my court. I have always been sensitive to the need for judges to be fair and impartial in fact and in perception and will remain so.

Thank you,

Correale Stevens
Judge, Superior Court of PA

Retain the Superior Court's Correale Stevens, an Accessible Workhorse

Correale F. Stevens is the last of three judges seeking retention on the state superior court. I'll be supporting his bid. Most judges, once they don those black robes, tend to become aloof. But Stevens, in vast contrast to the norm, has made an effort to remain accessible to those he serves. His opinions are slightly right of center, but they also support individual liberties and an independent press.

Who is Corry Stevens?

Most appellate judges come from Philly or the Pittsburgh area, and simply lack the perspective that can be provided by someone outside their big city arenas. But Judge Stevens is a product of the coal regions, a "cracker." He lives in nearby Luzerne County.

Judge Stevens is a graduate of Dickinson School of Law, where he was a member of law review. After that, he served four terms as a state representative. That might explain his responsiveness. I sent him an email with a question about his teaching experience, and he replied the very next day with a very nice letter. That's very unusual from a sitting appellate judge. You usually have to jump through all kinds of hoops just to get an audience with a county judge's butler, but this superior court judge was both responsive and friendly.

After his stint as a Republican state rep, Stevens was elected Luzerne County DA in 1987. When his term was complete, he was elected county judge, and won his seat on the superior court in 1997.

What's highly unusually about Stevens is his attempt at outreach. In addition to teaching one evening every week at Penn State's Hazelton campus, he volunteers to speak at elementary and high schools about the judicial system. He has even held a town meeting in a local auditorium to hear questions and concerns about the courts in general. And his name is all over google as a judge in the statewide mock trial program, and that's strictly as a volunteer.

In his email, Stevens explains his efforts at bringing the courts closer to the people. "It is good for elected officials to be active in the community to listen to concerns of people, and to share thoughts on the workings of our government and to encourage students to learn about their government."

A Judge Unafraid to Speak Out

Let's be honest. Most judges duck issues, hiding behind their black robes. But Stevens is unafraid to address the most controversial of political issues, including our undocumented workforce. Although I disagree completely with his position, I am impressed that he thinks enough of the voters to be honest with them. As Max Baer said when he ran for the state's high court, "I think you have a right to know what I feel, what I believe in, who I am."

Stevens a Superior Court Workhorse

Judge Stevens has 354 published online opinions, and that's 50% more than the combined total of the two other superior court judges seeking retention - Orie Melvin and Musmanno. Only 39 of these are concurring or dissenting opinions, evidence that Stevens is a consensus builder.

His opinions reflect a judge who is prosecution-oriented, but who respects important constitutional rights.

He has been consistently tough on sex offenders. This includes a decision upholding a conviction for possession of child pornography. Although a defendant had merely viewed this type of porn on his computer, that was sufficient to uphold a criminal conviction for possession. "[Defendant's] actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography."

He has also ruled that a fourteen year old child who shot at someone near innocent bystanders, can be tried as an adult. And when Pier 34 collapsed in Philly, causing three deaths and injuring forty-three people, Stevens dissented from a ruling that disallowed a felony prosecution. The supreme court eventually agreed with him.

Although tough on crime, Stevens has supported individual liberties.

In a defamation case by a police officer against a Lancaster newspaper that had published a letter to the editor, Stevens ruled that actual malice had to be established. His ruling was recently reversed, which is bound to have a chilling impact on free and open discussion.

Although he ruled against a gay couple's right to adopt, he made clear his decision is demanded by the letter of the law, not the sexual orientation of the couples seeking adoption rights. He just feels that it is up to the legislature, not the judiciary, to expand existing law.

Conclusion

While Judge Musmanno may be the superior court's long ball hitter, Stevens is their utility player. Day in and day out, he has been a workhorse. Not the usual judicial elitist, he is responsive to the people, has conducted town halls, speaks out on issues and even answers email. His decisions are conservative, but well-reasoned. I will vote to retain Stevens.

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.

Conclusion

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.

Why Judge Joan Orie Melvin Should Not Be Retained on Pa.'s Superior Court

Yesterday, I told you about Pennsylvania Supreme Court Justice Thomas Saylor, and why I'm voting against his retention. Six appellate jurists besides Saylor will be on the ballot on November 6. These are judges of the Superior and Commonwealth Court. Today's post focuses on one of these judges, Joan Orie Melvin. I'll be voting against her retention, too. The purpose of this post is to provide you with facts from which you can conclude, on your own, whether we can afford to keep a judge like her.

What is the Superior Court?

Often called the court of second guess, the superior court is where most appeals from a trial court are heard. They also approve wiretap requests. The vast majority of the 8,201 appeals filed last year, were from criminal convictions. Although there are fifteen jurists, they usually sit in three-judge panels. Because the supremes are so reluctant to hear appeals, the superior court is usually the last bastion of hope for those seeking justice.

The fifteen superior court judges, whose annual salary is $165,342, are initially elected for a ten year term. After that, judges are retained by a simple "yes" or "no" statewide vote. Mandatory retirement occurs at age 70. The president judge, whose yearly take is $170,442, is elected by fellow judges once every five years.

Joan Orie Melvin is a Politically Ambitious Woman

A Pittsburgh native, Melvin first managed to get herself appointed as a judge in 1990, filling a vacancy. At that time, she had only been practicing law nine years. The following year, as an incumbent, she was elected to a full term as a common pleas judge. But she never served that term. A mere seven years later, she was on the campaign warpath again, this time winning her current seat on the superior court.

During the time she spent traipsing across the state, picking up votes, she pretty much ignored her responsibilities as a common pleas judge. An investigative report by a team of eleven reporters at the Post-Gazette, cast a very public spotlight on a very unresponsive Melvin, a person who obviously considers her personal ambition more important than her work as a judge.

Melvin thumbed her nose at a six-week trial term because a pesky little jury trial might interfere with her quest to become an appellate judge. Her courtroom was "virtually shut down . . . for several weeks" while she "spent numerous weekdays out of town campaigning."

After stewing for a few years on this intermediate court, she decided to take a stab for a seat with the supremes in 2003. She and Democrat Max Baer engaged in a money war, spending an obscene $3.34 million over one seat on the state high court. This exceeds the total amount spent in all judicial races during the previous two years. Forty-three per cent of this money came from lawyers, a drastic increase from the ten percent total in the 2001 race.

Although the Code of Judicial Conduct clearly permits judicial candidates to speak out on issues, Melvin still refused to do so. Max Baer, who eventually beat her, said this during a televised debate. "I think you have a right to know what I feel, what I believe in, who I am." And he chastised Melvin for hiding her personal views during a televised debate with him, but expressing her views on tort reform and abortion in comments to Melvin-friendly audiences.

As you've probably guessed, Melvin is politically connected. Her sister, Jane Orie, just happens to be a state senator. Incidentally, she's a member of the judiciary committee, too. According to The Insider, these two sisters have a "well-known long-standing political feud" with fellow Republican Melissa Hart. "If Hart came out for light, the Ories would back dark."

Judges like Melvin prove Norco DA John Morganelli's point - "judges are probably the most political animals in the political and legal jungle." But the Pennsylvania Bar Association still recommends her retention. That's no shocker, considering that these sycophants recommended the retention of insurance fraud Defendant Michael (call me Judge) Joyce, too.

Thin-Skinned Melvin Tries Some Legal Intimidation Against Cyber-Critics



In addition to being a political animal, Melvin is also a thin-skinned bully. She proved that through five years of quixotic litigation in two separate states over anonymous comments posted on a Pittsburgh-based political gossip site. A group of John Does had criticized her "misconduct" in asking Governor Ridge to appoint someone she knew to a judgeship. I'm not sure how that even constitutes defamation, but I guess it must be per se defamation to criticize a superior court judge.

First, she sued in Virginia, trying to learn the identity of the anonymous cretins who had sullied her sparkling reputation. She got nowhere.

She had a little more success on her home field when she filed a second lawsuit in Allegheny County. But America Online branded Melvin's attempt at intimidation "an illegitimate use of the courts to silence and retaliate against speakers." And Witold Walczak, Executive Director of the Pittsburgh ACLU, noted the important role of anonymous speech in a democracy. "Not only did The Federalist Papers and Thomas Paine's Common Sense, both printed pseudonymously, change the course of American history, but evidence today suggests that anonymous Internet speech played a role in the collapse of the Soviet Union."

The state supreme court eventually agreed, and ruled Melvin had to prove financial loss before demanding the identity of her critics. "[G]enerally, the constitutional right to anonymous free speech is deeply rooted in public policy that goes beyond this particular litigation, and ... it falls within the class of rights that are too important to be denied review."

Thankfully, Melvin abandoned her legal bullying. Never admitting she had been wrong, her attorney claimed it would have taken too many years.

Melvin Sues Again, Over That Payraise

Now with her defamation suit out of the way, Melvin took politics by litigation to a new level by suing to demand that the state pay her less money. She lost that suit, too. Here's what one of those dastardly anonymous cyber-critics said. "[F]or a sitting judge to seek a court order barring the payment to her of a pay raise--a raise the Pennsylvania Supreme Court had already ruled could not constitutionally be repealed--is an abuse of the very judicial system she purportedly represents. I will certainly vote 'no' on her retention."

Gee, I wonder if she's going to sue him.

Her Mean-Spirited Record From the Bench

Melvin has 139 written opinions online, and 31 of these are concurring or dissenting opinions. These opinions, quite frankly, reveal a mean-spirited person who should not be sitting in judgement of anyone. In her little world, juvenile adjudications would count as criminal convictions under the "three strikes" act. The fourth amendment protection against unreasonable search and seizure would be meaningless. An insurance company contractually required to pay for a building in disrepair would not be required to do so unless that building collapsed. A father who disciplines his daughter would be subjected to a PFA order. On appeal, she would make her own credibility determinations on witnesses she never saw or heard, forbidden territory for an appellate judge.

Conclusion

Melvin might be a gifted politician, but she's not a gifted judge. Her attempt at legal intimidation could be expected from a major corporation, but a slapsuit from a sitting judge is bizarre. And her second suit over the payraise is pure grandstanding. Her money gathering, especially from lawyers, is obscene. And her contrarian opinions reveal an utter lack of compassion.Update: John Micek, with just a tad of sarcasm, tells us that PACleanSweep founder Russ Diamond may remove Melvin from his judicial hit list, directed at every judge up for retention. "If Judge Orie Melvin has paid back the net amount of everything she's received since the pay raise began, we'll definitely take her off our list of 'No' judges." Based on her entire record and history, I could never vote to retain her.