24 April 2013

Pennsylvania Supreme Court Should Wait for New Justice

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.