Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, April 09, 2007

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Justice Castille: Don't let 'em see you sweat.

By Howard J. Bashman
Monday, April 9, 2007

Given the citizenry's continued discontent over the matter, the last person whom you'd expect to be keeping the issue of state judicial pay raises in the headlines is the author of the Pennsylvania Supreme Court's September 2006 decision invalidating legislation to repeal those judicial pay raises while upholding the repeal of every other aspect of that controversial pay raise law.

One lesson that many of us learned from our parents when we were young is that reacting to the provocations of bullies tends only to encourage the people who are doing the bullying, because the reaction reveals that we care about what the bullies are doing and saying. If we ignore a bully, maybe he will go away or lose interest. But if we react to the bully, it will likely only encourage further bullying.

These thoughts came to mind recently when major newspapers across Pennsylvania reported that Justice Ronald D. Castille had declined an invitation from a professor at the Duquesne University School of Law to attend a ceremony at which U.S. Supreme Court Justice Samuel A. Alito Jr. would receive the Carol Los Mansmann award, named in honor of the late 3rd Circuit judge who died far too young due to cancer. The reason Castille declined the invitation, according to these press reports, was because one of the most persistent critics of the Pa. Supreme Court's pay raise ruling also serves as a law professor at Duquesne.

The judicial gadfly in question, with whom Castille apparently does not want to associate in any way whatsoever, is Duquesne law professor Bruce Ledewitz. According to The Philadelphia Inquirer, Ledewitz recently stated in an interview with The Beaver County Times that the Pa. Supreme Court was "more corrupt than the legislature" for having invalidated the repeal of judicial pay raises while allowing the repeal of legislative pay raises. Castille, a former Philadelphia District Attorney who lost a limb fighting for the United States in Vietnam, understandably does not take kindly to being referred to as corrupt.

Particularly surprising, however, were the contents of a letter that Castille wrote to the Duquesne law professor who had invited Castille to attend the event honoring Alito. In that letter, Castille explained that he was refusing the invitation because court critic Ledewitz also teaches at Duquesne's law school. Castille's letter, according to press reports, also stated that Ledewitz's charge that the Pa. Supreme Court was corrupt could subject Ledewitz to disciplinary charges from the Pennsylvania Bar for accusing judges of committing a crime without having any reasonable basis for doing so.

In an earlier installment of this column, I explained that, in my view, the Pa. Supreme Court reached the correct legal result in ruling that the legislature could not repeal the judicial pay raise. In my opinion, the court was guilty, at most, of only political, but not legal, ineptitude. But, although I think that Castille's majority opinion reached the right result in the pay raise case, I cannot defend the specifics of Castille's reaction to Ledewitz's statement that the Pa. Supreme Court acted corruptly in ruling as it did.

To begin with, the use of the word "corrupt" in an interview with The Beaver County Times is best understood by its colloquial meaning -- akin to a charge that someone has acted to feather his own nest -- rather than as a charge of criminal wrongdoing. It cannot be denied that the Pa. Supreme Court's pay raise ruling financially benefited the justices on that court and state court judges in general. But this sort of a conflict of interest was inherent, and inescapable, in that case, and the existence of the conflict does not, without more, mean that the justices acted unlawfully in deciding the case or that their decision was bound to be incorrect or affected by self–interest.

If the justices serving on Pennsylvania's highest court are unwilling to associate with critics of their pay raise ruling, those justices may find themselves welcome in very few places across the Commonwealth. Moreover, the idea that Duquesne should be punished because of the outspoken nature of the criticisms expressed by one of its law professors on the pay raise issue is truly absurd. Where will the punishment end? Will the Pa. Supreme Court's justices refuse to hire any law clerks from Duquesne? And will lawyers or clients associated with Duquesne regularly find themselves on the losing end of cases decided by the court based on that affiliation?

These rhetorical questions sound quite silly, but only slightly more silly than the idea that a Pa. Supreme Court justice would refuse to attend an event at Duquesne honoring a U.S. Supreme Court justice merely because a single Duquesne law professor has harshly criticized the Pa. Supreme Court's pay raise ruling. Justices serving on Pennsylvania's highest court ought to rise above the level of their critics, instead of engaging in a petty series of recriminations having no end in sight.

It may be unfair to insist that judges ought to sit back and take it when their work and sometimes even their ethics are harshly criticized in the media. But this latest series of events provides one more example of why it is typically preferable that judges adhere to the high road instead of trying to battle it out in the muck.

This article is reprinted with permission from the April 9, 2007 issue of The Legal Intelligencer © 2007 NLP IP Company.

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