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Leading law expert asks state’s highest court for reforms

By Alison Hawkes For The 6 min read

HARRISBURG – A leading law expert on the Pennsylvania constitution is asking the state’s highest court to be more transparent and adhere more closely to the letter of the constitution as a way to restore the public’s trust in the aftermath of last year’s pay raise. However, Duquesne University law professor Bruce Ledewitz says he may be bumping up against the power of the high court in the release of his “Platform for Reform of the Pennsylvania Supreme Court.”

Ledewitz is scheduled to present it for the first time at a continuing education legal course at Duquesne in Pittsburgh today, but in an unusual move said he was asked to overnight his materials to the Pennsylvania Continuing Education Legal Board, a body appointed by the Supreme Court.

He also said his fall 2006 across-the-state tour of the course was unexpectedly cancelled after the dean of the school met with Chief Justice Ralph Cappy.

Ledewitz’s criticisms of the high court come as public trust in the institution has plummeted. The Pennsylvania Supreme Court was badly tarnished after the July 2005 pay raise, when it became public that Cappy held private negotiations with lawmakers about judges’ portion of the raises and later called the public anger “knee-jerk.”

In November, that led to Pennsylvania voters for the first time history tossing out a sitting Supreme Court justice, Russell Nigro.

A case challenging the constitutionality of the pay raise is currently awaiting a ruling by the high court, although Cappy recused himself.

Ledewitz said he is releasing his list of reforms in advance of next year’s two statewide judicial elections so that the public can begin to demand change. Justice Thomas Saylor will face an up or down retention vote, and candidates will be running to fill Nigro’s seat for a 10-year term.

“This is non-partisan. I don’t care who’s elected and I expect Saylor to be retained,” Ledewitz said. “But when he’s on the court … having said we have to reform the court, he’s going to be a voice for reform.”

Deputy State Court Administrator Tom Darr was dismissive of Ledewitz’s proposals, calling him “about as critical a person I know about the Supreme Court.” As for the public’s demands for reform, Darr emphasized the court’s role of independence.

“The question you have to ask yourself is, do the citizens want their courts to bend to the winds of what popular is or not?” Darr said.

But Ledewitz said the changes he’s proposing deal with bettering the way the court does business and adhering strictly to the letter of the state constitution, not how it should rule on particular issues. Justices could make the changes internally. Most of proposals seek to shed public sunshine into the court’s “administration of justice,” or the inner workings of the justice system, so that it doesn’t operate in the same cloak of secrecy that’s legitimately afforded to lawsuits.

Among his 15 proposals are:

? Judges must consult lawmakers and governor’s administration officials only in public hearings to avoid backroom deals like the pay raise.

? The court’s rule-making procedures be debated and adopted in public.

? All administrative records be public.

? Curb the practice of issuing rulings without opinions or with unpublished opinions. The court was mute while resolving the controversial case involving Senate Pro Tempore Robert Jubelirer, who briefly served two offices at once in taking over the lieutenant governor’s when former Gov. Tom Ridge left.

? The court should interpret questions on how the Legislature passes bills in strict accordance with constitutional guidelines.

? The chief justice should appear annually before the Legislature to discuss court needs.

? An independent body, such as the Pennsylvania Bar Association, should provide a list of names for court committee appointments that justices will choose from to curb nepotism and patronage. That could avoid the situation in which the brother of Justice Sandra Newman chairs the Judicial Conduct Board, which has the power to censor judges.

“I am trying to treat the court like a branch of a democratic government,” said Ledewitz. “That’s the point. Unless they’re deciding a case, they are no different from the Legislature or the governor and everything they do should be done in the light of day as it’s done in the other branches of government.”

Darr defended the high court’s appointment of family members to ancillary boards, saying Newman’s brother, Mark Schultz, would recuse himself from a case if there was a conflict of interest.

“You’d rather have Bruce Lederwitz’s brother on it?” he asked. “There is not such thing as a fully independent anything. Everybody brings a bias or perspective.”

Darr also said the public has an opportunity to respond to court rule-making through written comments and advance review of prospective rules.

As for Ledewitz’ continuing education course, the administrator for the Supreme Court-appointed board said the request for materials was part of a periodic review process providers must go through.

“We request material from providers all the time and Duquesne is up for review now,” said administrator Dan Levering.

But Ledewitz said he feels like he’s being silenced. He said thousands of postcards had gone out announcing his fall state tour of the class before the law school yanked it. A call to the head dean of Duquesne Law School, Donald Guter, was not returned.

“I find it truly remarkable that in this day and age a government agency would so transparently attempt to suppress criticism of the state Supreme Court,” he said.

But Darr questioned whether the topic contributes to the professional competence of lawyers.

“It’s sort of ironic, I suppose, he’s going to voice (his opinions) at a continuing legal education program under the auspices of the Supreme Court of Pennsylvania,” Darr said.

Ledewitz said he does have one public presentation lined up, in Harrisburg in front of reform advocates at the end of the month.

“If I have a chance to talk about judicial reform I will go anywhere in this state where people will hear me,” he said.

Alison Hawkes can be reached at 717-705-6330 or ahawkes@calkins-media.com.

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