Possible conflict of interest clouds Supreme Court hearing on redistricting
Senator’s sister is Supreme Court justice; both are under investigation for corruption
By Eric Boehm | PA Independent
HARRISBURG — A potential conflict of interest on the state Supreme Court could throw a monkey wrench into the final step of Pennsylvania’s legislative redistricting process and leave voters without knowing their districts when the election process begins next week.
A petition, filed with the state Supreme Court by a Berks County resident, seeks to disqualify Justice Joan Orie Melvin from Monday’s hearing on the new state House and Senate district maps. The complaint alleges a conflict of interest, because Orie Melvin’s decision would determine the new legislative district for her sister, state Sen. Jane Orie, R-Allegheny.
The complaint, filed by Dennis Baylor of Hamburg, refers to the Pennsylvania Code of Judicial Conduct, which tells judges to “perform the duties of their office impartially and diligently.”
The code also requires that judges “should uphold the integrity and independence of the judiciary” and “refrain from political activity inappropriate to their judicial office.”
Wes Oliver, a law professor at Widener University School of Law in Harrisburg, said judges at all levels typically recuse themselves from cases involving family members. This principle should extend to a judge deciding a legislative district for a family member, but a formal process for determining a conflict of interest in this situation does not exist.
“These rules about recusal are as much about the perception of conflict as they are about actual conflict,” Oliver said. “If the public perceives that there would be a bias, then it would be a good idea.”
Political activists and reform groups also have called for Orie Melvin to recuse herself from the ruling, which will determine the state’s legislative districts for the next 10 years.
“It is time for Justice Joan Orie Melvin to leave the Supreme Court, either voluntarily or involuntarily,” said Tim Potts, executive director of Democracy Rising PA, a nonprofit that advocates for governmental transparency and accountability.
“If Justice Melvin does not resign, it is time for the Supreme Court to suspend her,” he said.
Calls to Orie Melvin’s office Tuesday were not returned. She has not been charged with any crime.
Jim Koval, spokesman for the Pennsylvania Unified Court System, said Chief Justice Ron Castille is offering no comment on the potential conflict of interest and would not ask Orie Melvin to recuse herself.
"That would be a decision for Justice Melvin to make," he said.
The legal complaint also points to Orie Melvin’s involvement in a political corruption case that is expected to go to trial next month in Allegheny County.
Jane Orie and her sister, Janine Orie, will be on trial for charges stemming from a grand jury report in 2010 that alleged that the sisters used public resources from the senator’s office to help Orie Melvin win a place on the state’s highest court.
An earlier trial for the two sisters in 2011 ended with a mistrial.
Last week, the Pittsburgh Post-Gazette reported that Orie Melvin also is the target of a grand jury investigation in connection to those charges and had been subpoenaed to testify to the grand jury.
The announcement has led some to call for Orie Melvin to remove herself from the court entirely, or for the court to suspend her until the investigation is completed and charges have been absolved.
“All citizens, including judges are presumed innocent until proven guilty, but judges and especially Supreme Court justices should not be permitted to judge others while under the cloud of such a serious investigation,” said Lyn Marks, executive director of Pennsylvanians for Modern Courts, a group that advocates for judicial reform.
Marks said the organization believed the Supreme Court should take steps to remove Orie Melvin all together, if she did not step down on her own.
Gene Stilp, a political activist and head of Pennsylvania Taxpayers and Ratepayers United, which protests political corruption, said Orie Melvin should step down from the court because of the charges.
“At least she should recuse herself if she does not resign before the 23rd," said Stilp, who also is running for Congress as a Democrat in the 11th District.
Stilp filed a complaint with the state Judicial Conduct Board in 2010 after the charges against the other two Orie sisters were made public. While that complaint is still active, Stilp said he believes the board is shielding Orie Melvin from discipline.
The board is prevented from confirming or denying any complaint or commenting on any action taken. Calls to the board were referred to its chief counsel Joseph Massa and were not returned.
But if Orie Melvin recuses herself for Monday’s ruling, the situation could get even more complicated.
Without Orie Melvin’s vote, the state Supreme Court could be deadlocked between the remaining three Republicans and the three Democrats on the bench.
Eleven challenges to the new state House and Senate maps have been filed with the state’s highest court.
The Supreme Court is scheduled to hear oral arguments on the challenges on Monday in the state Capitol, the day before the first step in the state’s primary election process begins with the circulation of nominating petitions.
Any delay in the approval of the new maps would force incumbents and prospective challengers to wait until they know the final district lines before ramping up their campaigns, in effect, shortening the window of time before the April 24 primary elections.
The deadline to file signatures in Pennsylvania is Feb. 15, so a delay of only a few weeks would prevent prospective candidates from being on the ballot for the primary.
But that is of a secondary concern to Stilp, who argued the legitimacy of the Pennsylvania judicial system is at stake.
"The confidence that people have in the courts of Pennsylvania, and the Supreme Court, is almost as bad as the confidence they have in the Legislature," he said.