by Zack Bombatch, Staff Writer
 |
| A view from behind the Pa. Supreme Court bench. © pacourts.us |
In
the wake of Madame Justice Joan Orie Melvin’s criminal proceedings, conviction,
and resignation that takes effect on May 1, the Pennsylvania Supreme Court is potentially
gridlocked 3-3 on a number of cases currently pending before it. This is possibly the result of the sharp
partisan divide on the Court, which is composed of three Republican Justices
and three Democratic Justices.
Two cases in
particular, Butler v. Powers and Robinson Township v. Commonwealth, have
camps from both pro-energy and anti-fracking groups restlessly tossing and
turning as they wait for the Court’s decision.
These cases are significant because they pertain to the law of real
property within Pennsylvania for the reservation of “mineral” rights and local
municipal regulation of fracking sites. Despite
the cases’ significance, there is no indication that the Court will deliver opinions
in the foreseeable future. Nothing in the Pennsylvania Constitution or internal
operating procedures (“IOP”) maintained by the Court limits the amount of time
the Court has to deliver an opinion after granting review and hearing oral
arguments.
Some
attorneys, academics and industry insiders predict an opinion delivered during
the second quarter of this year. To
deliver an opinion within this quarter would fly in the face of the Court’s internal
operating procedures and purpose of maintaining a seven Justice bench. The Court will likely wait until it has a
full complement of Justices before rendering opinions in Butler and Robinson Township.
If the
Court does not wait for a new Justice, the Court would likely deliver a plurality
opinion where exactly half or less of the Justices agree. This plurality opinion would be binding on
the parties, but the rationale and precedent over the issues in the cases would
come from the Superior Court and Commonwealth Court opinions. The Court may consider a plurality opinion
inappropriate for deciding Butler and
Robinson Township because of their potentially
significant impact on fracking operations within Pennsylvania.
 |
| Well pad installation preparation in Western Pa. © Michael Knapp/knappap.blogspot.com |
The
Governor must appoint a new Justice with the approval of the Pennsylvania State
Senate following the vacancy on the Court.
This process will further delay the delivery of the opinions because the
Governor has 90 days to submit a nominee following May 1st, and the
State Senate must act on the nominee within 25 legislative days. The newly appointed Justice will serve the
remainder of former Justice Orie Melvin’s term until 2015.
Following
the appointment of a new Justice, the parties will likely re-submit appellate
briefs and a new round of oral arguments will occur. The delivery of the Butler and Robinson Township
opinions will likely be further delayed as a seven-member Court deliberates the
cases again.
While
energy industry and anti-fracking groups are forced to wait in limbo several
months longer than initially thought, the wait will be worth it to have seven
Justices – a full complement on the Court – decide the cases.
