Slots parlors and pay raises: Cappy's legacy on high court

When Pennsylvania Supreme Court Chief Justice Ralph J. Cappy steps down at the end of the year, he will leave a court known mostly for upholding slot-machine gambling in Pennsylvania, clearing the way for slots parlors in Philadelphia, and affirming pay raises for judges but not legislators.

While Cappy did not take part in the controversial decision to uphold the judicial pay hikes, his successor to the top seat on the court - Justice Ronald D. Castille - wrote the opinion upholding the raises.

Cappy's departure will also mean another new face on the seven-member bench, which already is facing significant change. Voters in November will elect two new justices to fill earlier vacancies, and will decide whether Justice Thomas G. Saylor should get another 10-year term.

Gov. Rendell lauded Cappy for his "unwavering dedication to the rule of law" but in his statement gave no indication of when he would nominate someone to serve until voters elect a successor in 2009, or who it might be. An interim justice would have to be confirmed by the state Senate.

Immediate speculation focused on Philadelphia Common Pleas Court President Judge C. Darnell Jones II, a Democrat who was strongly supported by Rendell in an unsuccessful primary run for the court in May.

"It just seems like it's a no-brainer for the governor, who has already been so outspoken about the ability and accomplishments of Darnell Jones," said Lynn Marks, executive director of Pennsylvanians for Modern Courts, a group that advocates for an appointed judiciary. "I would be surprised if he didn't nominate him."

Jones said last night that he hadn't gotten any indication that he was under consideration.

"This is the governor's call, and it's early in this process," said Jones. He noted Rendell's other options included asking Justice Cynthia Baldwin, an interim appointee slated to serve until the end of this year, to extend her time on the court.

Cappy, 64, a Democrat from Pittsburgh who has been chief justice since 2003 and a justice since 1990, said he was leaving for "personal reasons."

In a statement, Cappy said he had time to think about the future while recovering from hip-replacement surgery in July. "I am 64 years old. My health is still good. But I want to spend more time with my family and to pursue personal interests," Cappy said.

The high court - the oldest appellate court in the nation - has a major impact on the day-to-day lives of Pennsylvania residents.

"It's the court of last resort for Pennsylvanians or anybody involved in litigation in Pennsylvania for a vast array of issues," said Carl Tobias, a law professor at the University of Richmond. The court has the final say in the vast majority of criminal cases, family-law matters such as divorce and child custody, and property-rights disputes.

But nationally, it is not known for the kind of cutting-edge legal rulings and analysis that lawyers have come to expect from the high courts in New Jersey, New York and California.

And, at least in part because judges and justices are elected in Pennsylvania, the high court has long had a reputation for getting too caught up in politics.

The decision last year to uphold pay raises for judges - while killing raises for legislators - only fueled that image.

Cappy did not take part in that ruling but had come under fire when he earlier lobbied the state legislature to approve judicial raises.

Legislators approved the pay raise for themselves and the judiciary, which sparked a firestorm of protest by grassroots activists that led to the ouster of Justice Russell M. Nigro in his 2005 reelection bid.

Then the high court ruled that judges could get the raises, but that the legislature had violated the state constitution by allowing lawmakers to take the raises at mid-term. Castille wrote the opinion in that case.

In his statement, Cappy said the flap about the pay raise had nothing to do with his decision to leave the court. And he reaffirmed his view that judicial salaries must be high enough to attract and keep quality judges.

After slots were legalized by the state legislature in 2004, the court in August reaffirmed a decision not to let Philadelphia voters decide in a referendum whether to exclude casinos from residential areas, and ruled that city officials may not use zoning to block the slots parlors.

Cappy weathered other difficult times at the court.

In 1992, he and another justice, Stephen A. Zappala, voted to publicly reprimand fellow Justice Rolf Larsen for improperly speaking to a Pittsburgh trial judge about an estate case pending before that judge.

Larsen, in turn, filed court documents accusing Zappala and Cappy of improper conduct. That triggered a grand jury investigation that exonerated the justices - but assailed Larsen as unfit for the court. He was ultimately removed.

Cappy succeeded Zappala as chief in 2003. During his years on the court, Cappy wrote a much-cited opinion in a search-and-seizure case that clarified how the Pennsylvania Constitution could provide greater protections than the U.S. Constitution.

He also wrote opinions that established liability barriers in class-action suits, and set parameters of First Amendment protections when profane comments about teachers were posted by students on a Web site.

Just last month, the court ordered the suspension of state Superior Court Judge Michael T. Joyce, two days after he was indicted by a federal grand jury in an alleged insurance scam. The court said there was a "compelling and immediate need to protect and preserve the integrity" of the court system.

"[The] right to refuse medical treatment has deep roots in our common law. . . . In removing life-sustaining measures, the natural death process is allowed to continue; death would not have been the result of a self-inflicted injury, as is the case with suicide."

A 1996 court ruling that a close relative can remove life support to a patient in a persistent coma.

"I can envision a scenario whereby the prospective bride and her family have expended thousands of dollars in preparation for the culminating event of matrimony and she is, through no fault of her own, left standing at the altar holding the caterer's bill. . . . To add insult to injury, the majority would also strip her of her engagement ring."

A 1999 dissent from a court ruling that declared a jilted bride-to-be had to return a $17,000 engagement ring.

"It's a great deal of money and I understand how the average person thinks of $14 million, but it isn't a significant amount of money to try to ensure the quality of the judiciary."

Defending judicial pay raises before the Greater Philadelphia Chamber of Commerce in 2006.

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