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

Monday, May 22, 2006
Posted 9:39 PM by

Pa. pay raise suit a 'slam dunk,' Common Cause official says

Barry Kauffmann, executive director of Common Cause, predicted at least a partial victory Monday in his group's federal lawsuit against the state's top officials over last year's legislative pay raise.While one of the plaintiffs in a federal lawsuit against Pennsylvania's top leaders expressed doubt of its success last week, the head of a good government group predicted at least a partial victory Monday.

"If the case is decided strictly on the facts, it's a slam dunk for us," Barry Kauffman, executive director of Common Cause of Pennsylvania, said Monday. "This case cuts right to the heart of the power structure of Pennsylvania."

At 2 a.m. on July 7, the Legislature adopted a pay raise without public notice or debate for its members, all judges in the state and members of the executive branch. A day later, Gov. Ed Rendell signed it into law and praised the help of chief state Supreme Court justice Ralph Cappy in drafting the measure.

In October, Common Cause, the League of Women Voters of Pennsylvania, Tim Potts of Democracy Rising PA, and state Rep. Greg Vitali sued the Commonwealth, Rendell, Cappy and the state's top legislative leaders, alleging the Legislature violated both the state and federal constitutions by bypassing proper procedure to pass the pay hike.

After public outrage over the raises mounted, the Legislature repealed the pay hikes on Nov. 16. Some lawmakers took their raises early, though, through "unvouchered expenses" and were not required to pay them back, and the salary increases still counted for calculating the legislators' pensions.

But Common Cause isn't suing over the money so much as the method the lawmakers used to ignore the Constitutionally-mandated three day public airing of a bill before it gets brought to the floor for a vote, as well as collusion between the state Supreme Court and the Legislature.

If you haven't read the federal lawsuit, it's a sarcastically-worded hoot. At one point, it compares the effect state Constitutonal requirements have on legislative leaders to "light on a gaggle of vampires at dawns break."

According to the suit, Cappy allegedly forced a Senate-House conference committee to agree to the pay raise, in part because several lawsuits were pending before the state Supreme Court questioning the Constitutionality of previously passed laws.

In short, the Legislature has created its own Catch-22. By passing laws unconstitutionally, the lawmakers risk having them overturned by the state Supreme Court and must do whatever the justices wanted.

To get the pay hike passed, a 24-line bill, H.B. 1521, which was supposed to prohibit any member of the executive branch or any board from receiving compensation greater than that paid to the governor, was gutted and replaced with 22-pages detailing the pay hike after the original bill was voted upon once and passed by both the House and the Senate.

The amended bill was then brought to the floor of the House and Senate for a second vote, this time under a provision that barred all but six lawmakers involved in the joint conference from further amending it.

The pay raise "became law literally in the dead of night, with no public warning and practically no public discussion, certainly not the public and legislative debate mandated by the Pennsylvania Constitution," the lawsuit says.

This isn't the first time legislative leaders used such a ploy to pass a potentially politically unpalatable law. In 2004, a two-paragraph bill requiring background checks for harness racing track employees was similarly gutted and replaced with a 146-page law that legalized slot machines in Pennsylvania.

"I think they're terrified of us getting discovery and swearing people in under oath."

- Barry Kauffman
Executive Director
Common Cause of Pa.

Common Cause's suit alleges the Legislature has taken similar tacts with budgets over the years. It also claims Supreme Court justices have been "blackmailing" the Legislature since 1998 with a court order requiring the state to pay all judiciary expenses.

As proof, the lawsuit includes affidavits from former state Rep. Edward Krebs and two other legislators who refused to be named unless called to testify.

"I think they're terrified of us getting discovery and swearing people in under oath," Kauffman said today.

That's why at a hearing Friday attended only by lawyers, some of the officials involved and reporters for both the Associated Press reporter and the Capitolwire private news service, the defendants claimed Common Cause and the League of Women Voters are "shadowy organizations."

Just for the record, Common Cause is nonpartisan group advocating good government. It has more than 10,000 members statewide, including myself. The League of Women Voters is a non-partisan, non-profit group with 40 chapters throughout the state that encourage citizen participation in government.

"They tried to make the case that we don't have standing," Kauffman said.

U.S. District Judge Yvette Kane said she would decide on multiple motions to dismiss the case with prejudice within three weeks.

"We're pretty confident," Kauffman said. "By and large, this case is going to go forward. Almost everything we have contended is in the public record. There are clear violations of the state constituton and a clear connection to violations of the federal constitution."

"Based on these sworn affidavits, plaintiffs believe discovery will establish a decade-long struggle by the Pennsylvania Supreme Court to coerce state funding whereby one or more justices of the Pennsylvania Supreme Court and leaders of the General Assembly negotiated legislation desired by the Court in exchange for rulings favorable to the legislative leadership on cases then pending before the Court challenging the constitutionality of the process by which important legislation was consistently enacted in secret...."

- Federal lawsuit
His comments were in contrast to Tim Potts, co-founder of the anti-pay raise group Democracy Rising PA, who said Saturday, "The case was always a long shot."

Not in Kauffman's eyes. He's been working on it since 1998 and said he had to get the approval of his group's state chapter and national officials before filing it.

"The information we're using is right from Justice Cappy's own mouth," Kauffman said. "We're saying this is a violation of federal rights. You can't have the person who is supposed to rule on a piece of legislation be involved in the drafting and passing the legislation."

He also said no matter what Kane decides, "Whatever side loses will appeal."

One final note, the pay raise may have been in the work since the falll of 2004 before it was finally forced to the floor early on July 7, the Philadelphia Inquirer reported Monday.

On Nov. 20, 2004, Republicans complained the governor had reneged on a promise to sign off on the pay raise - a fight that degenerated into an ugly confrontation in Rendell's office, during which Senate President Pro Tempore Jubelirer angrily shoved his finger at the governor and cursed at him, accusing him of being a liar.

Both Jubelirer and Senate Majority David Brightbill lost their seats in last Tuesday's primary primarily because of the pay raise issue.

Both were named in Common Cause's lawsuit as defendants because they were on the Senate-House conference committee that forced the pay raise issue to a vote.

Kauffman said he saw no reason to drop either legislator from the suit simply because they will be leaving office. "They were still the people involved in the situation."
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