PITTSBURGH – Attorneys for suspended state Supreme Court Justice Joan Orie Melvin want the six remaining justices to halt her prosecution on campaign corruption charges later this month, saying it violates the constitutional separation of powers.
Their request is a direct appeal to the high court of an argument already rejected by Allegheny County Judge Lester Nauhaus, who is scheduled to begin picking a jury for Melvin’s trial starting Jan. 23.
Nauhaus last month rejected Melvin’s argument that the charges should be thrown out because the district attorney – as part of the executive branch of government – has no jurisdiction to regulate the behavior of employees in the judicial branch.
Melvin, 56, is charged with using her former state-paid Superior Court staffers to illegally campaign for a seat on the high court in 2003, an election she lost, and again in 2009, when she was elected to the state’s highest court.
The request, known as a King’s Bench memo, are rarely granted because they require the court to exercise extraordinary jurisdiction – in this case, dismissing the charges against Melvin and stopping the prosecution – in a matter of immediate public importance.
Melvin’s attorneys argue that it is warranted because the Supreme Court alone has the power to regulate the political activity of lower court employees and that criminalizing those actions through prosecution violates a power reserved to the high court.
Melvin’s attorneys point to past Supreme Court decisions, including a 1997 opinion authored by the father of Allegheny County District Attorney Stephen Zappala – former Justice Stephen Zappala Sr. – that rejected efforts by the legislature to criminalize a rule the Supreme Court enacted to ban attorneys from paying referral fees to non-lawyers.
Melvin’s lead attorney, Patrick Casey, declined to comment on the appeal, as did Deputy District Attorney Law Claus and DA Zappala’s spokesman, Mike Manko, except to say they have a Thursday deadline to file a response.
That response is expected to echo arguments Claus made when Melvin’s attorneys asked Nauhaus to dismiss the charges on the same constitutional grounds last month.
Claus wrote then that Melvin’s argument is “built upon a faulty premise.” The prosecution is not based purely on political activity, but on the use of state resources “to promote her own political campaigns, a difference the defendant ignores.”
Melvin will be tried along with her sister Janine Orie, who ran Melvin’s Superior Court staff and is accused of conspiring to use the state-paid staff of a third sister, former state Sen. Jane Orie, to campaign for Melvin.
Jane Orie fought charges she misused her Senate staff to work on her own political campaigns and fundraising but was convicted this year. However, the former senator was acquitted of charges she directed her staff to campaign for Melvin on state time. The 51-year-old is serving 2 1/2 to 10 years in prison.
Melvin remains suspended without her $195,000 annual salary while the charges are pending.
Janine Orie’s defense attorney, James DePasquale, has said he’s confident she’ll be found “not guilty of everything.”