Commonwealth Ex Rel. JIULIANTE v. County of Erie

PELLEGRINI, Judge,

dissenting.

I respectfully dissent. Under the present system of funding, the County of Erie is obligated to pay for legal fees incurred by the Sixth Judicial District to prevent the unconstitutional intrusion by the County in the court’s internal operation.

In 1982, the Erie County Personnel Code (Code) was amended to include an anti-nepotism policy which provided that when two County employees were from the same family, one family member could not supervise another family member. In this case, the Court of Common Pleas of Erie County (Court) appointed Thomas P. Antolik (Antolik) to the position of Chief Juvenile Probation Officer, who then had supervisory control over his younger brother, Andrew Antolik, a Juvenile Probation Officer. When the County of Erie (County) refused to reclassify Antolik on the basis that the appointment violated the nepotism policy, the Court issued an ex parte order stating that the Code was inapplicable to appointments made by the judiciary.

The County appealed the ex parte order to this court. Without consulting the County regarding the responsibility for payment of the Court’s legal fees, the Court hired the law firm of Duane, Morris & Heckscher (Firm) for representation. Subsequently, this court issued an order which held that the anti-nepotism policy was constitutionally inapplicable to court-appointed personnel because it impinged on the judiciary’s right to hire, fire and supervise its employees. See In the Matter of the Appointment of Thomas P. Antolik (Antolik I), 93 Pa.Commonwealth Ct. 258, 501 A.2d 697 (1985).

*516The Firm submitted its bill for services to the Court, which, in turn, submitted the bill to the County. The County refused to pay the bill, arguing that the Administrative Office of the Pennsylvania Courts (AOPC) was responsible for such payments. AOPC, however, refused to pay the bill as well. The Court then issued a second ex parte order directing the County to pay the bill. The County appealed that order to this court and the Court again retained the Firm for representation. We held that the ex parte order of the Court violated due process and did not constitute an adjudication of rights. See In the Matter of the Appointment of Thomas P. Antolik (Antolik II), 124 Pa.Commonwealth Ct. 5, 555 A.2d 273, petition for allowance of appeal denied, 523 Pa. 637, 565 A.2d 446 (1989).

The Court then filed a complaint in mandamus in the Court Of Common Pleas of Erie County seeking an order directing the County to pay for the legal services it incurred in implementing the County’s anti-nepotism policy. The County filed a motion for summary judgment which the trial court granted on the basis of our Supreme Court’s decision in Lavelle v. Koch, 532 Pa. 631, 617 A.2d 319 (1992). This appeal by the Court followed.

The majority resolves this dispute in favor of the County, primarily relying on Lavelle. In Lavelle, President Judge Lavelle brought a mandamus action against the county seeking to compel the county commissioners to appropriate and disburse funds for county court employee salaries and seeking legal fees associated with that action. After determining that Lavelle had failed to provide evidence that the proposed salaries were reasonably necessary to avoid a genuine threat to the administration of justice, our Supreme Court held that he was not entitled to legal fees because there was no statute or established exception authorizing such an award. Although Lavelle argued that the judiciary’s inherent powers to compel funding would be meaningless unless the legislative branch was obligated to cover the costs associated with bringing an action in mandamus, the Supreme Court responded:

*517[T]hat argument ignores the fact that any member of this Commonwealth’s judiciary can turn to the Administrative Office of Pennsylvania Courts for ‘legal services and, when appropriate, representation by legal counsel.’ Pa.R.J.A. No. 505(15). Thus, it cannot be said that our decision to deny attorney’s fees and costs deprives the judiciary of a vital ‘checking’ power over the legislative branch.

Id., 532 Pa. at 638, 617 A.2d at 323.

While I agree that Lavelle is dispositive that the shifting of counsel fees to the County is not necessary to maintain the independence of the judiciary because of the availability of counsel from AOPC, it did not address the entity that is legally obligated to pay counsel fees under the system of court funding as it exists today. Moreover, it is not a question of fee shifting, but one of who has the primary obligation to pay for legal services incurred by a judicial district in carrying out its responsibilities.1

42 Pa.C.S. § 3722 provides that the County is to provide the Courts of Common Pleas with funding necessary for operation of their common pleas, including “services.” It provides that:

Except as otherwise provided by statute, each county shall continue to furnish to the court of common pleas and community court embracing the county, to the minor judiciary established for the county and to all personnel of the system, including central staff entitled thereto, located within the county, all necessary accommodations, goods and services which by law have heretofore been furnished.

In County of Allegheny v. Commonwealth, 517 Pa. 65, 534 A.2d 760 (1987), our Supreme Court found that the system of *518county funding of the judicial system violated Article 5, Section 1 of the Pennsylvania Constitution because the requirement that there be a unified judicial system mandates that the funding for all judicial districts be uniform and not dependent on adequate appropriations for 67 different Boards of County Commissioners. However, while holding that the funding of the judicial system was a Commonwealth function, the Supreme Court held that the county funding of the judicial system would remain in effect until after the General Assembly enacted a funding system to conform with the court’s constitutional funding directives. Id., 534 A.2d at 765. That funding system has never been implemented and the counties continue to fund the operations of the judicial districts.

Because the counties are still required to fund the judicial districts, I believe that they still have a continuing legal obligation to fund all services, including legal services, necessary for the judicial districts to function. The County attempted to unconstitutionally impose a personnel system on the Sixth Judicial District. It was necessary for the Sixth Judicial District to seek legal relief from that unconstitutional exercise of power. Under the system of county funding that remains in effect, the County of Erie is obligated to pay for those legal services expended to prevent that from happening even if the County was the entity doing the interfering. Accordingly, I respectfully dissent.

COLINS, J., joins in this dissent.

. If a county controller sued the county commissioners to stop them from illegally interfering with the operation of his or her office and he or she was successful, the payment of counsel fees would not involve fee shifting. Because the county solicitor has a conflict and cannot represent both parties, the county has an obligation to provide him or her with counsel. Otherwise, a county would always be successful in these types of disputes.