"What's black and white and read all over?"

Saturday, May 20, 2006
Posted 7:18 PM by

Federal judge may toss Pa. pay raise lawsuit

But should the federal judge, a former Pennsylvania official and prosecutor, even be hearing the unprecedented case? And will the state attorney general or the Supreme Court pursue its allegations further?

A federal judge and former Pennsylvania cabinet official may toss Common Cause's lawsuit alleging collusion between the state Supreme Court and the Legislature.A federal case pitting Common Cause against the leaders of the Commonwealth, alleging collusion between the state Supreme Court and key lawmakers, may be headed to a calamitous conclusion.

That's because a federal judge may soon chuck the good government group's novel lawsuit out of court.

After a two hour hearing Friday, U.S. District Judge Yvette Kane said she would decide in about three weeks whether to dismiss the suit attacking how last year's legislative pay raise law was passed, according to the Associated Press.

Her announcement came three days after the court of public opinion rendered its own verdict on two of the lawsuit's defendents - state Senate President Pro Tempore Robert Jubelirer and Senate Major Leader David Brightbill - by voting them out of office in Tuesday's primary.

Kane also dismissed state Treasurer Bob Casey and the Commonwealth itself as defendants in the federal case Friday.

Phone messages I left this morning for Common Cause, of which I'm a member, and its attorney, P. Anthony Rossi, have yet to be returned.

"The case was always a long shot," a fellow plaintiff, Tim Potts, co-founder of Democracy Rising Pa., told me this afternoon. "There really isn't a precedent for the federal government to do what we're asking. The only thing that comes close is civil rights stuff."

The lawsuit Common Cause, the League of Women Voters of Pennsylvania, Potts and others filed in October alleges federal constitutional rights were violated when the pay raise law was pushed through at 2 a.m. on July 7 without public notice or debate.

"The case was always a long shot."

- Tim Potts
Democracy Rising Pa.
and federal lawsuit plaintiff

Legislative leaders used a similar method to legalize slot machine gambling in Pennsylvania in 2004 and the state Supreme Court later upheld it.

Although the state Constitution forbids lawmakers from giving themselves a pay raise during their two-year session, legislative leaders let their members take the raises early through "unvouchered expenses."

The raise also increased the salaries of judges throughout the state and high ranking members of Gov. Ed Rendell's administration, including state Attorney General Tom Corbett who has been asked to probe Common Cause's allegations.

The pay raise sparked a public outcry and the Legislature repealed it on Nov. 16. But some lawmakers didn't pay their unvouchered expenses back and the raise still counted toward their pensions even though it's no longer on the books.

The pay raise issue has been cited by many officials as the reason why 15 incumbent legislators, and possibly as many as 20, lost their seats in the primary election. The results were unprecedented in Pennsylvania political history.

The lawsuit also cites affidavits its claims proves justices on the state Supreme Court and Jubelirer, Brightbill, House Speaker John Perzel and other top legislators have been secretly working in collusion since 1999, exchanging favorable rulings on important legislation in exchange for higher judicial salaries.

Common Cause is seeking repayment of all unvouchered expenses, a judgment prohibiting lawmakers from enacting laws in an unconstitutional manner and a prohibition on "state justices and judges from engaging in discussions with members of the legislative or executive branches on legislation, since they may have to rule on such legislation at future times."

The group is also seeking an injunction barring the state Supreme Court from ruling on three other cases related to the pay raise law. Two are from judges seeking to have their pay hikes restored.

The third is from Gene Stilp, a taxpayer advocate and failed lieutenant governor candidate, who sued seeking to overturn the raise.

Pennsylvania Supreme Court Chief Justice Ralph Cappy has been cleared of wrongdoing in the pay raise by the Judicial Conduct board, but has been named as a defendant in Common Cause's federal lawsuit and in another one before the state Supreme Court brought by taxpayer advocate Gene Stilp.Supreme Court Chief Justice Ralph Cappy recused himself before the justices heard oral arguments on those cases last month. Stilp also filed a complaint against Cappy for his role in the pay raise with the state Judicial Conduct Board, but it too was denied.

Despite the magnitude of the federal case - and the fact that Gov. Ed Rendell, Supreme Court Chief Justice Ralph Cappy and the state's top legislators are all still listed as defendants - the Associated Press did a horrible job covering the hearing and no other newspapers were there.

An AP article that ran in newspapers throughout Pennsylvania this morning, and which was widely reported on TV and radio, fails to detail what the lawyers were arguing about, why Casey and the Commonwealth were excused from the lawsuit, or on what basis Kane could dismiss the case.

Potts said most of the hearing was spent on lawyers arguing defense motions on why the case should be dismissed.

"The process that was employed was utterly unconstitutinal and we need to have a remedy somewhere," Potts said. "What I found interesting is that the defendants almost universally said that the remedy is to throw them out of office."

But Potts said Rossi argued "that's only a partial remedy. The same rules in place could let this happen again. We need a court to say the citizens of Pennsylvania have the right to participate in their own government other than at the ballot box."

After reviewing some of the court paperwork at my own expense, it's possible Kane could agree with motions to dismiss filed by multiple defendants.

"... A desire to get to the bottom of allegations in anonymous affidavits and unauthenticated e-mails does not substitute for a valid basis for federal court jurisdiction."

- Arlin M. Adams
attorney for Pa. Chief Justice Ralph Cappy

The one filed on behalf of the chief justice says, "Plaintiffs attempt to avoid dismissal of their claims against defendant Ralph J. Cappy by substituting rhetoric for analysis. In addition, plaintiffs seek to transform their complaints about state legislative procedures and allegations of state constitutional violations into due process and First Amendment violations, despite the lack of a single citation to relevant precedent supporting such an extraordinary result. The Court should reject these efforts and dismiss plaintiffs' complaint with prejudice because (1) the Court lacks jurisdiction over plaintiffs' claims, (2) plaintiffs are without standing to assert those claims in federal court, and (3) plaintiffs have failed to state a claim against defendant Cappy."

It later argues, "Plaintiffs' novel theory would make a federal case of every alleged violation of the state constitution. ... In addition to making the unsupported claim that alleged violations of the state constitution can transform into federal claims, plaintiffs appear to suggest that if they make scurrilous allegations (e.g., of "unsavory" conduct), they can avoid the jurisdictional defects in their complaint and obtain discovery. But a desire to get to the bottom of allegations in anonymous affidavits and unauthenticated e-mails does not substitute for a valid basis for federal court jurisdiction."

"It all depends how scared they are."

- Tim Potts
on the chances
Pa. Supreme Court justices
will reverse themselves
The Associated Press article also fails to mention that Judge Kane is a former secretary of Pennsylvania's Department of State (1995-1998) and an ex-state deputy attorney general (1986-1991).

Considering two deputies from Attorney General Tom Corbett's office - Daniel J. Doyle and Amanda L. Smith - defended the state in the lawsuit, Kane could have a conflict of interest and perhaps should have recused herself instead of hearing the case.

But Potts said, "I don't know if that would disqualify her. If anything that would make her understand it. I certainly didn't see her saying anything prejudicial."

Will Pennsylvania Attorney General Tom Corbett probe the allegations raised by Common Causes' federal lawsuit?Potts also said the Commonwealth's dismissal as a defendant from the federal lawsuit now frees Corbett up to investigate the suit's collusion allegations - a request he made to the state's top prosecutor in February.

"He could hire other people to look into it, or have an independent cousel," Potts said. "The question is whether he will do it."

If Corbett won't, Potts said he still holds out hope that the state Supreme Court justices might find "that their decision in the past (upholding the method by which the pay raise passed) was inappropriate."

Democracy Rising PA co-founder Tim Potts said Pennsylvania residents should have more say in how their government is run than merely voting.Asked how likely that is - even with Cappy out of the room while they deliberate - Potts said, "It all depends how scared they are.

"They saw one justice (Russell Nigro) lose his seat and another judge (Sandra Schultz Newman) almost. They could easily create a climate where no judge in the state is safe on a retention vote."


If you want to see the court papers state leaders filed in response to the lawsuit filed by Common Cause of Pennsylvania, it will cost you. To read why, click here.
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