WINTER 1983

THE DUQUESNE LAW SCHOOL NEWSMAGAZINE

Judicial Immunity Under Attack Editor's Note

'-., n 1£ ~-'iNt. IAWSO IOClL:0.1:..'\\">.\IAGAJ'J:\l THE JUDICIAL OBLIGATION VOL. XVIU No.2-Winter, 1983 he judicial process is the hub of the wheel of justice. In more than 5,000 T years of history, no other institution has disposed of human conflict so Editor-In-Chief thoroughly without violence. The court system has continually prevented the Gery T. Nietupski common man from becoming a victim of government. It is no wonder that the courts have the confidence of the public. Courts are deserving of their position Articles Editor in the minds of the general public because of their method in the disposition of Sharon N. Bogarad disputes. Controversies are settled through a procedure and a mental process Executive Managing Editor which is impartial as between the litigants, virtuous in its attempt to attain a just Francis A. Muracca result and objective in that it has a large, comprehensive body of rules and law Art Editor from which to make a decision. Patricia A. Brooks Brisini A decision rendered by a jurist, however, should not be based solely upon the prior decisions or thought of others. The judicial process is too intricate to lend Associate Editors itself to a simple system of controversy and predictable outcome. A judge must Cheryl A. Croyle do more than extract from a judicial precedent the underlying principle. He James E. Murray must develop a path along which the principle can logically lead to the con­ John T. Pion clusion which is, in the judge's opinion, the most desirable. Development would seem to follow the routine lines of logic and history. According to Professor Assistant Editors Patterson, "either one feels bound by the inexorable logic of an inescapable R. Kevin Brown, Jr. ratio decidendi or one is hemmed in by the pressure of legal history from cutting Michael Duffy a new path." Anne Kozera Guides, or "methods," which provide the framework for the judicial process James Orie have been formulated by Justice Cardozo. These four methods, or as he called Cover Art and Illustrations them, "directive forces, " were the methods of Philosophy, which explored the Patricia A. Brooks Brisini rule of analogy; the method of evolution, which followed the lines of historical development; the method of tradition, which was exerted through community Photography customs; and lastly, the method of sociology, which was based upon justice, R. Kevin Brown, Jr. morals, social welfare and the mores of the day. These methods were intended Faculty Advisor by Cardozo to apply to the commonplace and the unique case equally. Cardozo Patrick J. Basial also firmly believed that judges should rarely overrule precedents and venture to innovate. He believed that "law making is primarily for the legislature." I'm Senior Staff not so sure. Martin Brennan Obviously, "justice" and "social welfare" are vague terms about which all James Bruno men, including judges, will differ. Judges are often unable, due to the traditions Rose Constantino of their office, to have a choice. Cardozo was able to remain true to the desires Claudia DeArment of society and justice by premising his opinions in judicial dialectic which made Julie Wilson use of narrow factual distinctions, thereby leaving historically established doc­ Valerie Merti trines untouched. Matthew Polka The application of law is not routine in all cases. Judges are able, through the Bruce Zero judicial process, to draft opinions consistent with their particular feelings and motives, and yet remain true to the "letter of the law." Judicial innovation is an Secretary important concept. Judges cannot merely trust prior opinions. They must pay Jan Paterson Cramer attention to the law in light of the circumstances of the parties involved in the JURIS is a student publication of the litigation, and yet remain within the bounds of established doctrine. The failure Duquesne University School of Law. to innovate, when necessary, will undermine 5,000 years of public confidence in Views and opinions expressed are not judicial integrity and lead to "unjust results." necessarily those of JURIS or Duquesne Sincerely, University. All manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 900 Locust Street, T Pillsburgh, Pennsylvania 15282. ft~ G~ ::,~~hj Telephone (412) 434-6305. Editor-in-Chief Copyright © 1983 Duquesne University In this issue CAVEAT:- LET THE JUDICIAL IMMUNITY UNDER ATTACK 9 ATTORNEY BEWARE 3 21 BOOK REVIEW THE CASE FOR BANK DEREGULATION: 1 2 BLOOD TESTING GARN-ST GERMAIN DEPOSI­ ALUMNEWS 6 TORY INSTITUTIONS ACT ELECT OR APPOINT: THE 23 OF 1982 1 8 JUDGES TALK TO JURIS

2 JUDICIAL IMMUNITY UNDER ATTACK

BY CHARLES J. VOLPE, JR.

"Judicial immunity, though rich in history and tradition ... like many vestiges of its past, may someday give way to the increasing demands of plain­ tiffs and changing public policy. "

here was a time in the long history that where there is no jurisdiction girl, no guardian ad litem was ap­ T of our jurisprudence when the over the subject matter, any authority pointed to protect her interests, and concept of bringing suit against a exercised is usurped authority. If the neither the petition nor the order was judge, while acting in a judicial judge could be said to have acted in ever filed in the circuit court of the capacity, was unthinkable. However, the "clear absence of all jurisdic­ county. times have changed. Today, there is tion," he would be amenable to suit. The operation was performed with­ an alarming increase in the number of This standard, although strict, out the girl being advised of the true judges being sued, and the doctrine of shows the first crack in the founda­ consequences of the surgery. In fact, judicial immunity, once considered an tion which supports judicial immunity she was told that her appendix had insurmountable fixture in the judicial as it is only available to judges of been removed. Two years later, when process, has come under attack. superior or general jurisdiction. the girl married, she learned for the Judges on all levels of the judiciary (There was a distinction in Bradley as first time that she had been sterilized. can no longer be secure from liability to the standard applied.) While The district court granted the de­ as new decisions have emerged with judges of general jurisdiction are only fendant's motion to dismiss, holding pressing demands to indemnify ag­ amenable to suit in the "clear absence Judge Stump was "clothed with ab­ grieved plaintiffs. of jurisdiction," judges of limited solute judicial immunity" so that Historically, the concept of im­ jurisdiction are potentially liable if neither he nor any of the other de­ munity for judges can be traced to the they act in "excess of jurisdiction." fendants were liable.' administrative practices of Ham­ Thus, at the time of the Bradley de­ The Seventh Circuit Court of Ap­ murabi and the long standing applica­ cision, it could no longer be said that peals reversed, holding that Judge tion of "rex peccare non potest. " For judges were completely immune from Stump lacked both statutory and our purposes, case law which dates to liability. This led to much debate, common law authority for his action. the 19th century has defined the notwithstanding the jurisdiction stan­ This court maintained that an ex­ parameters of the concept as applied dard to be applied, as to what consti­ treme measure such as sterilization in American jurisprudence. The con­ tutes a "judicial act." was not within his jurisdiction, hence cept that judicial officers were not to With this background, a demon­ he was not protected by judicial im­ be the subject of civil liability for stration of the difficulty in the appli­ munity. With the traditional notions judicial acts done within their juris­ cation of this doctrine can be made of judicial liability shaken to their diction was recognized by our Su­ upon consideration of the case of very core, appeal was taken to the preme Court long ago, and such a rule Stump v. Sparkman. 1 This contro­ Supreme Court of the United States. remains viable as a general statement versy has most significantly fueled Justice White in his opinion for the of law.' speculation of immunity in today's court relied upon the Bradley defini­ In Bradley v. Fisher, 2 the Supreme judicial arena. tions in addressing the two principle Court stated the general principle of In this case, Judge Harold D. issues: (I) whether Judge Stump had judicial immunity with the observa­ Stump issued a court order in an ex acted in the "clear absence of all tion that a judicial officer, in exer­ parte proceeding authorizing tubal jurisdiction" in approving the sterili­ cising the authority vested in him, ligation on a fifteen year old girl. The zation petition, and (2) whether his "shall be free to act upon his own petition alleged that the girl was consideration of the petition and convictions without apprehension of "somewhat retarded," although she court order constituted a "judicial personal consequences to himself." attended public schools and had been act," so as to make immunity However, this statement does not "passed along with other children in available. provide blanket protection. There her age level." It was further alleged In reversing the Seventh Circuit, were standards and distinctions enun­ that the girl had begun dating and Justice White stated that a judge ciated in Bradley, such as the juris­ staying overnight with men and that would not be deprived of immunity dictional test and the availability of the mother could not "prevent unfor­ because the action he took was in immunity only for "judicial acts." tunate circumstances. "• No hearing error or in excess of authority; rather, Specifically, the Court pointed out was held, no notice was given to the he would be subject to liability only if

3 he had acted in the " clear absence of judge here did not perform a "judi­ court to report and investigate viola­ all jurisdiction." Judge Stump, being cial act." "In sum, what Judge tions of the Code. When one of the a judge of general jurisdiction was en­ Stump did on July 9, 1971, was in no appellees sought to prepare a legal titled to this more rigorous standard. way an act normally performed by a services directory, the attorneys who The Court found that Judge Stump judge. Indeed, there is no reason to were canvassed refused to supply the had "original exclusive jurisdiction in believe that such an act has ever been requested information for fear of vio­ all cases at law and in equity what­ performed by any other Indiana lating the Code's prohibition against soever . .. . and jurisdiction of all judge either before or since." ' The attorney advertising. Consumers other cases, matters, and proceedings dissent was establishing the future Union then brought action in United where exclusive jurisdiction is not vehicle for exceptions to the doctrine States District Court under 42 U.S.C. confirmed by law upon some other of judicial immunity. Realizing that § 1983 (1979 Supp.), against, inter court, board, or officer. " 6 Since the limitations defined in Bradley alia, the Virginia Supreme Court and there was an absence of case law or were difficult to reach, the dissenting its Chief Justice in both individual statutes allowing judges to authorize court was attempting to restrict the and official capacities. The suit sterilization, the Seventh Circuit erro­ scope of what could be classified as a sought the declaration that Virginia neously inferred that he acted in the "judicial act." By doing so, they Supreme Court had violated their absence of all jurisdiction. It could were establishing the vehicle for First and Fourteenth Amendment equally have been inferred that such bringing judges out from under the rights to gather, publish and receive absence meant Judge Stump had " clear absence of all jurisdiction" factual information concerning the jurisdiction. The fact that this was test when public policy dictated it attorneys involved. susceptible to differing interpreta­ should be done. In fact, Justice Despite the intervening United tions did not satisfy the strict juris­ Stewart posited this very test of States Supreme Court decision in diction standard for liability. "policy" as to whether an act is Bates v. State Bar Arizona," holding In consideration of the second ele­ judicial.' the enforcement of a ban on attorney ment as to whether the judge per­ Of course it can be argued that advertising would violate the First formed a " judicial act," the Court Stewart's comments are mere con­ and Fourteenth Amendment, the set forth two factors as being disposi­ jecture and there is no proof to sub­ Virginia Supreme Court declined to tive of the issue. The first factor for stantiate the reading of the case as an change its position. The District such determination is whether the attempt to limit the almost unreach­ Court enjoined the Virginia Supreme questioned action "is a function nor­ able standard of "clear absence of all Court from enforcing the Code. Con­ mally performed by a judge. The sec­ jurisdiction." However, it seems that sumers Union also moved for costs, ond consideration is whether the an integral part of the legal profes­ including an award of attorney's fees parties dealt with the judge "in his sion is involved in reacting to judicial pursuant to the Civil Rights A ttor­ judicial capacity." ' Here, since the trends. Consider that for the first ney's Fees A wards Act of 1976, 42 petition involved the affairs of a time there was a substantial minority U.S.C. § 1988 (1979 Supp.). The minor which judges normally con­ pressing for the personal liability of a defendants objected to any fee award sider, and Mrs. McFarlin submitted judge. It would have been immaterial on various grounds, including judi­ the petition to Judge Stump solely be­ whether this was accomplished cial immunity. The District Court cause he was a county circuit court through the abrogation of the strict held it was proper to award fees judge, his action was considered to be jurisdictional standard or by narrow­ against the Virginia Court in their of­ a "judicial act. " Therefore, the Su­ ing the activities which could be ficial capacities. " It would hardly be preme Court held Judge Stump im­ called "judicial acts." The point re­ unjust to order the Supreme Court of mune from suit. mains: a judge was found personally Virginia to pay plaintiff's reasonable Since the principle of judicial im­ liable by a United States Court of Ap­ attorney's fees in light of its continued munity was upheld, why should we peals, and there was no resounding failure and apparent refusal to amend then assert its foundation is no longer reversal by the Supreme Court. Fur­ the Code to conform with constitu­ secure? It should first be pointed out ther, as has already been pointed out, tional requirements.'" 2 that this decision upholding the im­ the judge here was somewhat "pena­ The Virginia Supreme Court and munity of Judge Stump was rather lized" by having to pay for his own its Chief Justice appealed to the tenuous considering the vote was defense costs. United States Supreme Court, pre­ 5-3-1. The Court was barely able to There is a more recent case in senting their judicial immunity as a muster a majority, and further, the which the Virginia Supreme Court defense to the injunction and award judge was responsible for paying for was also " penalized" by not only of attorney fees against them. In his own legal costs. This may have having to pay for their own defense Virginia Supreme Court v. Con­ been an indication of the general dis­ costs, but were also required to pay sumers Union of the United States, 11 approval o f the judge's actions, the plaintiffs attorney fees. In Con­ Justice White delivered the opinion of though a majority could not quite be sumers Union of the United States v. the court, in which the injunction was reached to find him personally liable. American Bar Association, ' 0 the upheld, but the award of attorney's The dissent, as expressed by Justice Virginia Supreme Court claimed fees was stricken and the case vacated Stewart, and joined by Justices authority to regulate and discipline its and remanded. The Court distin­ Marshall and Powell, found that attorneys. Pursuant to these powers, guished Stump v. Sparkman, supra, mothers do not "normally" seek the court promulgated the Virginia holding the judges did not perform judicial authorization for surgery, es­ Code of Professional Responsibility "judicial acts" so as to make judicial pecially one involving sterilization. and organized the Virginia State Bar immunity available, but as their acts Thus, the dissent maintained that the to act as administrative agency of the were legislative in nature, they were 4 nonetheless immune. Thus, the award Court of Virginia . .. we will order FOOTNOTES of attorney's fees was ruled im­ the Supreme Court .. . in their offi- proper. This decision further nar­ cial capacities, to pay to Consumers ' Wilkes v. Dinsman, 48 U.S. 89 rowed the bounds of what constitutes the reasonable attorney's fees for the ( 1849); Randall v. Brigham, 74 a "judicial act." u.s. 523 (1869). services of its counsel in this 2 action. " •• 80 u.s. 335, 337 (1872). ) 345 349 (1978). This time, when appeal was taken u.s. by the Virginia Court on the issue of Sparkman v. McFarlin, 552 F.2d "We conclude that no special 172 (7th Cir. 1977), Rev'd. sum circumstances have been shown attorney's fees alone, the United States Supreme Court dismissed the nom. Stump v. Sparkman, 435 that would render unjust an u.s. 349 (1978). award of f ees against the appeal for lack of appellate juris­ diction under 28 U.S.C. § 1253 5 Id. at 174. Supreme Court of Virginia. " 6 (1976). Therefore, we now have the Ind . Code § 33-4-4-3 (1975), highest court of a state not only liable quoted in Stump v. Sparkman, 435 U.S. 349, 357 (1978). for their own defense costs but liable 7 The foregoing, however, did not for the plaintiff's astronomical fees /d. at 362. end the controversy over the award of as well. 8 !d. at 357 (emphasis in original). 9 !d. at 368-69. fees against the judges. It should be In conclusion it would be unre­ 0 ' 470 F. Supp. 1055 (E. D. Va . 1979). noted that the United States Supreme alistic to assert that the doctrine of II 433 U.S. 350 (1977). Court had jurisdiction in this case be­ judicial immunity is a dead letter. 12 470 F. Supp. 105 5, 1059- 1061 cause of the issue involving Virginia's However, there appears to be a recog­ (E. D. Va. 1979). Code of Professional Responsibility; nizable trend, based on the increasing ll 446 719 (1980). thus, they also had jurisdiction to number of judges being sued and the u.s. consider the subsidiary issue of attor­ aforementioned cases, that a limiting •• 505 F. Supp. 824 (E.D. Va. 198 1) . ney's fees pursuant to 28 U.S.C. § a nd narrowing trend is developing in 1253 (1976). This is significant be­ the doctrine today. The foundation cause on remand the District Court of judicial immunity, though rich in ----.JURJS reinstated the award of attorney's hi story and tradition, shows its first fees stating " we conclude that no serious cracks and like many vestiges special circumstances have been of the past, it may someday give way shown that would render unjust an to the increasing demands of plain­ award of fees against the Supreme tiffs and changing public policy.

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5 BANK DEREGULATION: Garn-St Germain Depository Institutions Act of 1982

I. INTRODUCTION

radical change is occurring .in t~e bankin~ law of ~he A United States. ' The bankmg mdustry 1s applymg BY KIMBERLY J. GALLAGHER pressure for more and more deregulation to keep up with a rapidly changing market place. 2 Since 1978, 3 federal legis­ net worth of 3 percent of assets or less. To qualify for the lation has renected the banking industry's pressure for program, the institutions must have a net worth of I /2 per­ deregulation within the banking industry and between cent of their assets or greater after issuing the net worth banks and nonbank financial institutions. • The deregula­ certificates. 5 tion process accelerated in late 1982 when the Senate and Institutions applying for the net worth program must the House of Representatives6 passed The Conference comply with all rules and regulations established by the Report on The Garn-St Germain Depository Institutions federal insuring agency. However, the agencies are given Act of 1982 (H. R. 6267).' some discretion to take into account particular circum­ Garn-St Germain engulfs eight different titles aimed at stances and conditions of an institution. the deregulation of a variety of different activities . 1 The As long as a stock institution has net worth certificates Committee on Banking, Housing, and Urban Affairs,' outstanding, payment of dividends is prohibited. Further­ after numerous legislative hearings on conditions within more, in the event of a liquidation, the net worth certifi­ the financial system, '0 reported favorably on Senate Bill cates would receive treatment similar to preferred stock. No. 2879 (Garn-St Germain)'' and the bill was passed by the full Senate on September 30, 1982. ' 2 TITLE Ill - THRIFT INSTITUTIONS This article will examine the eight titles of Garn-St Ger­ RESTRUCTURING •• main and the effects these changes are designed to have on the banking and financial industry. Title Ill expands the investment powers for Federal Thrift institutions (i.e., savings & loans and savings banks). The increased investment powers allow these insti­ II. GARN·ST GERMAIN DEPOSITORY 13 tutions to expand on the services they provide to their INSTITUTIONS ACT OF 1982 customers. This section of Garn-St Germain is designed to bolster the thrift industry so that it may continue to be our TITLE I - DEPOSIT INSURANCE FLEXIBILITY country's primary home lender. Part A - Federal Deposit Insurance Corporation Title Il l provides for more liberal chartering provisions, 20 Amendments" grant greater flexibility to federal the authority to accept demand deposits for certain 2 22 depository institutions insurance agencies, the Federal customers, ' the ability to issue stock, enhanced real 23 Deposit Insurance Corporation (FDIC) and the Federal estate investment capability , and the authority to invest Savings & Loan Insurance Corporation (FSLIC), to aid in certain types of government securities.,. financially troubled institutions. Gam-St Germain granted nexibility by expanding the forms of financial assistance THE NEW MONEY MARKET provided by the insurance agencies and generally broaden­ DEPOSIT ACCOUNT ing the circumstances upon which financial assistance could be granted. ne of the Title Ill changes of Garn-St Germain Pa rt B - Federal Home Loan Bank Board Amend­ involves an amendment of Section 204 of the Deposi­ ments'5 and Part C- Credit Unions' 6 to Title I grant pro­ 0 tory Institutions Deregulation Act of 1980. H The amend­ cedures for acquisitions or merger of failed or failing insti­ ment requires that the Dl DC26 establish a new deposit ac­ tutions to the insurance agencies and the National Credit count "directly equivalent to and competitive with money Union Association (NCUA). Part C also broadens the market mutual funds registered with the Securities and Federal Home Loan Bank Board's authority as conserva­ Exchange Commission under the Investment Company tor with respect to certain of the insurance agencies. Act of 1940. " 2 7 The DIDC established this new account on Part D - Sunset Provisions" provide a sunset provision November 15, 1982,2' and deposit institutions began of three years for the emergency authorities of the regula­ offering the account on December 14, 1982. 29 tory agencies. The new money market account allows deposit institu­ tions total discretion over the interest rate to be paid by TITLE II- NET WORTH CERTIFICATES,. these accounts.30 These new instruments require an average This title establishes an income capital assistance pro­ monthly balance of $2,500 minimum deposit and are 3 gram for depository institutions that have suffered losses available to all types of bank customers. ' The new as a result of mortgage lending activities. The program is accounts also have restrictions on the type of monthly designed to assist the broad range of institutions having a transfers so as to exempt the accounts from Federal 6 Reserve Board ("FRB") requirements.ll Additionally, one TITLE V II - MISCELLANEOUS.. of the characteristics of this account, which differentiates This Title begins with an amendment to the Truth in it from a traditional money market mutual fund, is the fact Lending Act. The amendment exempts from the Truth in that it is insured by the proper federal insurance agency Lending Act and from state disclosure requirements any (FSLIC or FDIC).n Between December 14, 1982 and De­ loans made, issued or guaranteed under any program cember 31, 1982 these new accounts grew to 54.2 billion established by Title IV of the Higher Education Act of dollars. 14 1965. On December 6, 1982 the DIDC also created a new Title VII also permits industrial banks to qualify for NOW account which features unlimited monthly transac­ FDIC insurance and permits financial institutions to offer tions. This account, however, is available only to cus­ NOW accounts and share draft accounts to state and local tomers already eligible for NOW accounts. B These new governments. This Title also permits banks to form a bank NOW accounts are substantially similar to the money service corporation in which they can invest up to lOOJo of market instruments created by Garn-St Germain. 16 their capital. Title Ill of Garn-St Germain was enacted to increase the Additionally, Title VII authorizes FNMA to issue pre­ investment powers of Federal Thrift institutions. n The in­ ferred stock and make such stock transferable. This Title crease in investment authority is designed to improve the also directs the FDIC, the FSLIC, and the NCUA to con­ thrifts range of customer services and to improve. their duct a feasibility study of optional insurance of large ability to generate earnings for future growth capital. Jl deposits. However, it is important to note that the b~sic policy underlying Garn-Sl Germain is the revitalizauon of the TITLE VIII - ALTERNATIVE MORTGAGE housing industry by strengthening the financial stability of home mortgage institutions. 19 The creation of the new TRANSACTIONs•• money market deposit account was expressly established to This Title permits non-federally chartered housing be competitive with money market mutual funds. •o Cer­ creditors to offer alternative mortgage in conformity with tainly these funds are competitive with money market the applicable Federal regulations. funds•• and have strengthened the federal thrift institutions. •z Ill. CONCLUSIONS Title Ill also provides for a general federal preemption of state due-on sale clauses in real estate mortgages. • J Garn-St Germain is Congress' latest major piece of legislation aimed at deregulating the banking industry. TITLE IV- PROVISIONS RELATING TO Undoubtedly more deregulation for banks and nonbank NATIONAL AND MEMBER BANKS.. financial institutions will be enacted in this decade due to mounting pressure. According to Joseph Jude Norton:9 This Title increases the lending limits of a national bank the market place pressures are coming from: (I) investment to an individual borrower from 10 percent to 15 percent of banks such as Merrill Lynch, insurance companies such as the bank's capital for unsecured loans. An additional 10 Prudential, and retail creditors such as Sears & Americ~n percent is permitted if the loan is secured by marketable Express; (2) thrift institutions for increasing portfolio collateral. diversification; and (3) commercial bank reactions to inter­ Although loans to bank executive officers have been and intraindustry developments. limited in the past, Title IV eliminates these limitations in Through deregulation, the fine line between banks and regard to mortgage and educational loans. The $10,~ nonbank financial institutions is blurring. Investment "other loan" limitation will be replaced by an appropnate powers are being extended for banks and new depository limit set by the bank supervisory agencies. powers are being broadened for thrift institutions. Currently a new legal framework is being proposed TITLE V - AMENDMENTS TO THE FEDERAL through legislation entitled The Financial Institutions CREDIT UNION ACT... Deregulation Act of 1983. jo This legislation proposes even Title V provides for greater operating flexibility for further deregulation of the financial industry due to federal credit unions. Furthermore, this Title facilitates the continuing market pressures. establishment and management of federal credit unions. ------.JU IUS TITLE VI - PROPERTY 1 CASUALTY1 LIFE INSURANCE ACTIVITIES OF "Now is the time to rewrite the laws governing the BANK HOLDING COMPANIES•• financial services industry. The marketplace is mov­ ing ahead rapidly in the creation of new financial ser­ This Title prohibits bank holding companies and their vices. Unfortunately, banks are being forced to subsidiaries from providing insurance, including property design needlessly complex financial services to fit and casualty products, except for the six speciFic legal loopholes discovered by lawyers, rather than exceptions enunciated in Section 601 of Garn-St Germatn. simply responding to market dernands. Now is the This section, which amends 12 U.S.C. §1843 (c) (8) (1976), time to enact legislation that will help banks to com­ establishes that the sale of insurance does not meet the pete and their customers to benefit. " ' "closely related" test of the Bank Holding Company Act, except for the activities accounted for in the six exceptions, and therefore these activities are prohibited for bank C. T. Conover, in AMERICAN BANKER, October 14, holding companies. 1983, at 10, col. 2.

7 FOOTNOTES 23 Garn-St Germain §324. 2 4 1 Norton, "The 1982 Banking Act and the Deregulation Garn-St Germain Depository Institutions Act of 1982. Scheme, " 38 BUS. LAW. 1627 (1983). Money Market Deposit Account 2 !d. Section 327. Section 204 of the Depository Institution 3 !d. a t 1628. The Financial Institutions Regulatory and Deregulation Act of 1980 (12 U.S.C. 3503) is Interest Control Act of 1978 ("FfRA ") began the cur­ amended by adding at the end thereof the following: rent trend of Deregulation by extending investment and " (c)(l) The Committee shall issue a regulation loan powers of Federal Savings and Loan Institutions. authorizi ng a new deposit account, effective not later See Pub. L. No. 95-630,92 Stat. 3641 (1978) (codified in than 60 days after the date of enactment of this sub­ scattered secti ons of 12 U.S.C.). section. Such account shall be directly equivalent to !d. and competitive with money market mutual funds • !d. at 1627-28. The Depository Institutio ns Deregula­ registered with the Securities and Exchange Commis­ tion and Monetary Control Act of 1980 accelerated sion under the Investment Company Act of 1940. deregulation of thrift institutions and commercial "(2) No limitation on the maximum rate or rates of banks. See Pub. L. No. 96-221, 94 Stat. 132 (1980) interest payable on deposit accounts sha ll apply to the (codified in scattered secti on of 12 U.S.C.) See Weaver account authorized by this subsection. & O'Malley, "The Depository Institutions Deregulation "(3) For purposes of section 19 (b) of the Federal and Monetary Control Act of 1980: An Overview," 98 Reserve Act, accounts established pursuant to this Banking L.J. 100 (1981). subsection which are not ' transaction accounts' as !d. at 1628. See also 66 A.B.A. Journal 553 (1980), defined by the reserve requirement regulations of the See generally, Fairbanks " The Depository Institutions Board of Governors of the Federal Reserve System as Deregulation & Monetary Control Act: a broad over­ those regulations existed on August I , 1982, shall not view," 5 Mich. Fi nance & Bus. L.D. 50-58 (1981). be subject to transaction account reserves, even s The Senate passed the Conference Report on The Garn­ though no minimum maturity is required, and even St Germain Depository Institutions Act of 1982 on though up to three preauthorized or automatic trans­ September 30, 1982. fers to third parties are permitted monthly." 6 The House of Representatives passed the Conference The Depository Institutions Deregulation Act of 1980 is Report on The Garns-St Germain Depository Institu­ codified in 12 U.S.C. 3503 (1976). 25 tions Act of 1982 o n October I, 1982. DIDC is an acronym for the Depository Institutions 7 Pub. L. No. 97-320 (hereinafter Garn-St Germain) Deregulation Committee. 26 (codified in scattered section of 12 U.S.C.). Garn-St Germain, Section 327 (c) (1). 27 1 The House Bill was passed in lieu of the Senate Bill after Norton, supra note I at 1623 . See 47 Fed. Reg. 53,710 amending its language to contain much of the text of the (November 29, 1982). 21 Senate Bill (S. 2879). See Senate Conference Report No. 1983 MUTUAL FUND FACT BOOK, p. 5. 29 97-641 [to accompany H.R. 6267], September 30, 1982 !d. at 7. 30 Norton, supra note I at 1633. and Senate Report No. 97-536 [to accompany S. 2879], 31 (Banking, Housing, and Urban Affairs Committee), /d. See generally 39 Wash. Fin. Rep. No. 20 at 919 September 3, 1982. (November 22, 1982). 9 The Senate Committee on Banking, Housing, and Ur­ l2 Norton, supra note I at 1633. ban Affairs held hearings over a period of eighteen ll 1983 MUTUAL FUND FACT BOOK, p. 7. 34 months prior to enactment of Garn-St Germain. 1982 Norton, supra note I at 1634, See 47 Fed. Reg. 56,320 U.S. CODE CONG. & AD. NEWS 3055-56. (December J 6, 1982). 10 /d. at 3055. u Norton, supra note I at 1634. 36 11 /d. at 3054-55. Garn-St Germain was drafted to provide Senate Conference Report No. 97-641 , p. 87, 1982 U.S. nexibility to the Federal Deposit Insurance Corpora­ CODE CONG. & AD. NEWS. 37 tion, the Federal Savings & Loan Insurance Corpora­ Senate Conference Report No.97-641 p. 87, 1982 U.S. tion, and the Federal supervisory agencies to deal with CODE CONG. & AD. NEWS 31 financially distressed depository institutions, to enhance Senate Conference Report No. 97-641 p. 1 [To accom­ the competitiveness of depository institutions, to ex­ pany H.R. 6267] 1982 U.S. CODE CONG. & AD. pand the range of services provided by such institutions, NEWS. 39 to protect depositors and creditors of such institu­ See infra note 26 and accompanying text. The effect tions, ... these new bank money market accoun ts have had on !d. money market mutual funds will be discussed infra. 12 !d. See supra notes 5 & 6 and accompanying text. •• See inf ra notes 24-26 and accompanying text. 4 1 13 See Garn-St Germain §§ 111 -11 8. See infra notes 24-26 and accompanying text. 2 ,. See Garn-St Germain §§ 121-128. • Garn-S t Germain Part C §341. •U fd. " See Garn-St Germain §§ 131 -132. 16 See Garn-St Germain §§ 141 . .. Garn-St Germain §§401-433. 45 17 See Garn-St Germain §§202-206. Garn-St Germain §§50 1-533. 11 Garn-St Germain §§301-355. ., Garn-St Germain §601. See 4 7 19 Garn-St Germain §3 13 . Garn-St Germain §§701-7 12. 20 Garn-St Germain §3 12. •• Garn-St Germain §§80 1-807. 4 9 21 /d. See supra note I and accompanying text. 22 Garn-St Germain §322. so C. T. Conover as quoted by American Banker, October 14, 1983 , p. 10. 8 CAVEAT: LET THE ATTORNEY BEWARE

he legal malpractice action is by no means peculiar to BY T the modern age. An often cited starting point for the suit is the 1767 case of Pitt v. Yalden. ' Although the DONALD M. SAT INA relative frequency of suits against attorneys for profes­ sional negligence from the turn of the century until the 1960's was very low, the increase in litigati on since that Due to the broad nature of this topic, discussion will be time has been nothing less than staggering and Pennsyl­ restricted to the elements of a civil legal malpractice case in vania's attorneys have not escaped unscathed. For exam­ Pennsylvania and the proof problems therein, with special ple, one commentator noted that during the I 970's there attention paid to the applicable statutes of limitations. were almost as many reported legal malpractice decisions as there were reported decisions in the previous history of n acti on in legal malpractice may be brought in American jurisprudence. 2 Of course, it would be most dif­ A assumpsit based on an express contract between the fic ult to ascertain the actual number of claims brought attorney and client or on an implied contract to use reason­ since most have resulted in settlement. able care and diligence. It may be brought in trespass for One possible explanation for the increase in this litiga­ negligence. j tion is that attorneys had been very reluctant to institute Whether the action is brought in assumpsit or trespass, suit against fellow practitioners before the days o f uni­ the three (3) elements which the client must prove in a legal 6 versal malpractice insurance. With this barrier now re­ malpractice case are: moved, attorneys no longer need worry about shattering I) An attorney-client relationship creating a duty toward the career and economic security of a compatriot. 1 Other the client; factors which have been suggested as contributors to this 2) A breach of this duty through the failure of the a t­ escalation are the growing complexity of legal practices, torney to exercise ordinary skill a nd knowledge; the delegation of more and more work to younger associ­ 3) That such negligence or breach of contract was the ates and/ or legal assistants, and improved education and proximate cause of damage to the client; and the consumer movement, resulting in a more sophisticated In order for a client to recover in a legal malpractice population which is more demanding of competent legal action, it is generally essential that a n attorney-client rela­ services. Further, the a pplication by the judiciary of the tionship had existed between the parties, thus creating a discovery rule regarding statutes of limitations defenses, duty on the part of the attorney LOward his client.' This allowing more cases to reach j uries, plays an important duty is generally premised o n a contract of empl oyment of part. an atlorney. The relationship of attorney and client may be Information compiled by the National Data Center for implied from the conduct of the parties, but such conduct Lawyers Professional Liability, released by the American must evidence an offer or request by the client for legal ser­ Bar Association Standing Committee on Lawyer's Pro fes­ vices and an acceptance of the offer by the attorney as sional Liability, indicates that during the period of Pennsylvania Courts stress the consensual nature of the January I , 1981 through June 30, 1982, participating relationshi p.' Also, a duty may be based on a promise by malpractice insurers reported 7021 claims. (Vol. 131, an attorney to achieve a specific result, i.e., an express oral P.L.J. No.6, p. II ).• Although certain inherent flaws exist contract. in this data, from a statistical sense, it is very useful as an An attorney is held to a standard of care measured by indication of trends in legal malpractice cases. Traditional­ the skill and knowledge generally possessed and employed ly, as shown in the survey, real esta te has been the most af­ by practitio ners of the profession. 9 In 1905, the Pennsyl­ fected area of law, accounting for slightly over twenty-five vania Superior Court held that a n atlorney is not liable to (250Jo) percent of all claims. Suits against plainti ff's a t­ his client for a failure to succeed , resulting in loss to the torneys in personal injury actions came in second at about client, unless this failure is due to the m ismanagement of twenty-three (23%) percent. When commercial law, fa mily the business entrusted to him through bad faith, inat­ law, and estates and trusts are combined in consideration tention, or want of professional ski ll. 10 An attorney must with rea l estate a nd personal injury (plaintiff's attorney) at least, be familiar with the well-settled principles of law claims a full eighty (80%) percent of the total claims are and rules of practice which are of frequent appli cation in identified. In contrast, claims against defense a ttorneys the ordinary business of the profession; must observe the representing personal injury actions comprised less than utmost good faith toward his client; and must give such at­ three (3%) percent of the total claims. With regard to the tention to his duties, and to the interests of his client, as activities for which negligence was claimed, twenty-fi ve ordinary prudence demands, or members of the profession (25 OJo ) percent of the actions were related to commence­ usually bestow." T his standard is still applicable but has ment of the action, twenty (20%) percent to preparation been somewhat upgraded by the proposition that an at­ and transmittal of documents, ten (10 %) percent to con­ torney, like a judge, is required to be prepared to deal wi th sultation and advice, and eight (8%) percent were based on all foreseeable legal issues during a trial, not only the well ­ settlement a nd negotiation. settled principles. ' 2 H owever, the rule remains that 9 negligence of an attorney cannot be founded upon an in­ actions absent special circumstances. 11 The measure of formed judgment, even if subsequently proven to be damages in litigation related cases is generally the amount erroneous. u This last principle has been applied in cases that the client could have recovered or avoided had the where an attorney has consciously let a statute of limita­ initial action been successfuJ.ll If no damage award would tions run because he determined that the case had insu ffi­ have been forthcoming, the client was not actually harmed cient merits. •• by his attorney's shortcomings. 14 Other jurisdictions have An attorney is presumed to have discharged the duties of held that a Defendant attorney can avoid liability if he his representation until the opposite has been made to proves that the judgment which would have been recovered appear." Thus, a bad result does not create a presumption in the original action was uncollectible against the original that an attorney has been guilty of a want of care. The Defendant due to insolvency or any other reason.u Penn­ determination of legal malpractice, like the determination sylvania appellate courts have not considered this aspect of of malpractice in other professions, requires an evaluation the case.16 ~~ ~ro~t~ \mYa\ ~\\\ -and )\ll\<&m-em, 'a-s \~e\\ -a-s 'a '5tand'atd oY 1\. u ni que problem arises i n cases in which the fact finder, care which is related to common professional practice. 16 through expert testimony, ascertains that the case would Toward this end, Pennsylvania Courts have required ex­ have been settled prior to trial. At least one Pennsylvania pert testimony to establish the specific standard of care Court has awarded the settlment. value of the case rather 1 and to assist the factfinder, be it a judge or jury, in the than the expected jury verdict. ' It should be noted that the determination of the attorney's conformity to the relevant client's damage award need not be reduced by any con­ standard, unless the matter under investigation is so sim­ tingent fee a Defendant might have earned had he respon­ ple, and the lack of skill so obvious, as to be within the si bly and successfully carried out his obligations to the range of ordinary experience and comprehension of even client. 11 The Courts do not view this as a windfall to the non-professional persons.'' client since the fee saved by the client is cancelled out by Once the client has established that a duty existed and the one which he has had to pay to pursue the action was breached by his attorney, he must then show that the against the offending attorney .19 failure of his attorney to exercise ordinary skill and Although Pennsylvania Courts permit an attorney to knowledge was the proximate cause of his damages. 11 This assert the defense of the statute of limitations in legal last step is two-fold since the client must show not only malpractice actions, the correct limitations period must that the attorney's breach caused his troubles but also that first be determined. Under present Pennsylvania law, an he has suffered actual damages. individual who has an attorney-client relationship may sue Under the definition of proximate cause generally ap­ his attorney for malpractice under either a trespass or plied in Pennsylvania, a client would have to show that his assumpsit theory. Jo Trespass actions must be brought attorney's action constituted a substantial factor in failing within two (2) yearsl' while the period for assumpsit ac­ to obtain the desired result. For malpractice claims which tions is four (4) years, for oral contracts or contracts im­ allege that some act or omission of Plaintiff's former at­ plied in law12 and six (6) years for written contracts. u torney caused Plaintiff's claim to be lost, the Pennsylvania It has been argued that the two (2) year statute of limita­ Superior Court has held that the Plaintiff must first prove tions should be applicable to all legal malpractice actions that his original cause of action would have been successful since a Plaintiff should not be permitted to merely restate but for the attorney's negligence. ' 9 This aspect of the legal his cause of action and extend the limitations period. This malpractice action, which leads to a "case within a case," line of reasoning has won favor in medical malpractice has received very little appellate level attention in Penn­ cases. However, as recently as 1970, Pennsylvania Courts sylvania to date. have applied a contract statute of limitations to a legal A more refined approach has been developed in the malpractice action involving the breach of an express con­ parallel action of medical malpractice in which a practi­ tract. J• The Pennsylvania Supreme Court in an opinion tioner is liable if his actions were a substantial factor in decided in April of 1983 has further muddied the waters of bringing about the harm. This, along with the fact that this question by allowing a third party beneficiary action in some other cause concurs with the negligence of the De­ assumpsit by a named beneficiary against the attorney who fendant in producing an injury, does not relieve the De­ drafted the will. H The Court held the measure of damages fendant from liability unless he can show that such other to be the named beneficiary's expectancy, even though cause would have produced the injury independent of hi s prior legal malpractice cases, whether sounding in trespass negligence. 10 Since the Courts have traditionally borrowed or assumpsit, had applied a trespass standard of from the medical malpractice action in formulating rules damages. l6 Although the Court was silent on the limitation for legal malpractice, this definition of proximate cause period, application of the four (4) year assumpsit period will more than likely be adopted for legal malpractice. The would be the more sensible choice. In a decision filed in result would be that a Plaintiff would have to prove that May of 1983, the Superior Court recognized that a two (2), his attorney's acts or omissions were a substantial factor in four (4), or six (6) year statute of limitations could be ap­ bringing about the failure of the underlyi ng action. In plied to a legal malpractice action depending on whether or other words, the attorney's negligent acts or omissions not a contract of employment existed in some form. J7 increased the possibility of the action's failure. The Therefore, until the Supreme Court holds otherwise, a attorney would then have the burden of proving that some limitations period of up to six (6) years will continue to other concurring cause would have resulted in the failure govern. independent of his negligence. There has been a question as to whether or not Pennsyl­ Finally, whether he claims in assumpsit or trespass, the vania Courts will apply the discovery rule to legal mal­ client bears the burden of proving that he suffered actual practice actions. Traditionally, the statute of limitations 1 loss or damages related to the negligence of the attorney. ' for professional malpractice actions begins to run upon Nominal damages are not available in legal malpractice breach of the dut . H In 1959, the Penns lvania Su reme 10 Court fi rst applied the discovery rule to a medical mal­ the client's injuries and the client must prove that he most 9 practice case in Ayers v. Morgan. J This rule, which likely suffered actual loss. The statute of limitations provides that the statute runs from the time of actual defense is available to an auorney, but it is subject to the discovery of the injury or the time when discovery was discovery rule. The damages recoverable are based on the reasonably possible, rather than from the time the anticipated jury verdict, or on the settlement value where negligence occurred, was fashioned so that recovery is not expert testimony indicates that settlement would have been precluded for an injury that not even a diligent party may imminent. reasonably be expected to discover.'0 This rule has been Many authors have suggested measures aimed at avoid­ applied to legal malpractice cases as early as 1970." In ing legal malpractice. The stress is clearly placed on good 1980, the Pennsylvania Superior Court stated that the auorney-client communications, as well as good organiza­ discovery rule " is a judicially created rule generally tion and documentation on the part of the auorney. Above applicable to all statutes of limitation and to all cases all, the attorney should maintain professional liability in­ where the injury or its cause is not immediately evident. '"2 surance and report claims and all potential claims in a It is readily apparent that the use of the discovery rule in timely fashion. conjunction with longer limitation periods will result in Even though the attorney may think he has maintained a more cases being brought to bar. This must be taken as an proper standard of care with his client, the client may indication by the Court of Pennsylvania that the negligent think otherwise. Moreover, the court may agree with the attorney will be afforded no protections similarly denied to client in his suit, hence, finding the attorney liable for other negligent professionals. malpractice. In summary, liability of an attorney is premised on an The ramifications of law suits can have as much of an ef­ attorney-client relationship in which the attorney has fect upon an individual's life as can the most deadly of breached his duty by failing to exercise the skill a nd medical operations. The attorney needs to be careful to do knowledge generally possessed and employed by practi­ the best that he can in any case just as a doctor must. It is tioners of the profession, as measured by expert testimony. expected of him. If he does not live up to the given The breach of duty must have been the proximate cause of standard, let the attorney beware.

FOOTNOTES ------.lUI US 1 Pitt v. Yalden, 4 Burr. 2060, 98 Eng. Rep. 74 (K. B. 19 Duke & Co. v. Anderson, 418 A.2d at 616; See also, 1776). Williams v. Bashman, eta/., 457 F. Supp. 322 (E. D. Pa. 1 Mallen & Levit, A Manual on Legal Malpractice, 1978). Federal Publications, Inc. (1976, 1981). 20 Hamil v. Bashline, ___ Pa. Super. ___, 455 A.2d J Kind regan, Malpractice and the Lawyer, National Prac­ 1204 (1982). tice Institute, Inc. (1981). 11 Duke & Co. v. Anderson, 418 A.2d at 617; See also, • Malpractice Claims' Area Identified, 131 P .L.J. No.6, Guy v. Liederbach, 459 A.2d at 744; Schenkel v. p. II (1983). Monheit, 405 A.2d at 494. 1 1 Standard Pennsylvania Practice 2d §4.66 (1981); Duke zz Duke & Co. v. Anderson, 418 A.2d at 617. 2 & Co. v. Anderson, 275 Pa. Super. 65, 418 A.2d 613 ) Duke & Co. v. Anderson, 418 A.2d at 616; Williams v. (1980); Guy v. Liederbach, __ Pa. __, 459 Bashman, 457 F. Supp. at 326. 2 A.2d 744 (1983). ' Duke & Co. v. Anderson, 418 A.2d at 618; Schenkel v. 6 Duke & Co. v. Anderson, 418 A.2d at 616; Schenkel v. Monheit, 405 A.2d at 495. Monheit, 266 Pa. Super 396, 405 A.2d 493 (1979). zs Figg, McC ullough and Underwood, The Law of Legal ' Connelly v. Wolf, Block, Schorr and So/is-Cohen, Malpractice, 128 P.L.J. No.3 (1980). 463 F. Supp. 914 (E.D. Pa. 1978); Belden, Belden & 26 But see, Duncan v. Lord, 409 F Supp. 687 (E.D. Pa. Lappas, Professional Liability of Lawyers in Pennsyl­ 1976), where the Court indicated proof of collectability vania, 10 DUQUESNE L. REV. 317, 333-340 ( 1972). may be part of the Plaintiff's case. • Connelly, 463 F. Supp. at 919. 21 Duncan v. Lord, 409 F. Supp. at 693; See also, Williams • Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474 (3rd v. Bashman, 457 F. Supp. at 328. Cir. 1979). 21 Duncan v. Lord, 409 F. Supp. at 691; Welch v. First 10 Enterline v. Miller, 27 Pa. Super. 463, ___ A. ___ Penna. Bank, !0 D. & C. 3d 368 (1979). (1905). 29 Duncan v. Lord, 409 F. Supp. at 692. 11 Enterline, 27 Pa. Super. at 467. Jo Guy v. Liederbach, 459 A.2d at 748; I Standard Penn­ 11 Smith v. Danyo, 441 F. Supp. 171 , aff'd, 585 F.2d 83 sylvania Practice 2d §4:66 (1981 ); Duke & Co. v. Ander­ (I 977). son, 418 A.2d 616. I J Mazer v. Security Insurance Group, 368 F. Supp. 418 J I 42 p A. C.S.A. §5524 (7) ( 1982). (E.D. Pa. 1973). H 42 PA. C.S.A. §5525 (3) and (4) (1976). " McGrory v. Obermayer, Rebmann, et at., 14 D. & C 3d JJ 42 PA. C.S.A. §5527 (2). 335 ( 1978). J• Skyline Builders, Inc. v. Kellar, 50 D. & C. 2d 19 (1970). 11 Mazer, 368 F. Supp. at 422. Jl Guy v. Liederbach, _ _ Pa. __, 459 A.2d 744 16 Lentino, 611 F. 2d at 480. (1983). 6 " Lentino, 611 F. 2d at 481; Meiselman, The Expert Wit­ J Guy v. Liederbach, 459 A.2d at 752. ness: A Vital Element of Legal Malpractice Suits, ll Moore v. McComsey, _ __ Pa. Super. ___ , 459 TRIAL, August, 198 1. A.2d 841 ( 1983). 11 Duke& Co., 418 A.2d at 616; Schenkel v. Monheit, 405 A.2d at 494. (Continued on Page 21)

11 THE CASE FOR BLOOD TESTING

JOEL M. KAUFMAN* been varied, and have been inter­ they manufacture. The modifica­ posed at every level of the foundation tion by the manufacturer elimi­ necessary for its admission in an ef­ nated their susceptibility to radio ecent amendments to the Penn­ fort to prevent the factfinder from interference and only served to in­ Rsylvania Vehicle Code providing concluding that "the matter in ques­ sure the accuracy and reliability of for mandatory penalties and creating tion is what its proponent claims. " 2 the equipment. The machine is still a per se offense of "driving . . . while Admission of scientific evidence a Smith & Wesson Breathalyzer . .. the amount of alcohol by weight depends upon an underlying principle 1000 and is still an approved in the blood . . . is 0.1007o or of scientific validity. Breath testing device. Thus, it was appropriate greater" 1 have genera ted new in teres 1 presumes a constant ratio of 2100: I that the trial court dispense with in the accuracy and reliability of the blood alcohol to breath alcohol. Al­ the necessity of formal introduc­ evidentiary devices used for sam­ though the ratio is questioned as only tion of evidence on this point by pling, analyzing, and measuring an approximation, trial court chal­ taking judicial notice of the ap­ blood alcohol. If guilt is to be proved lenges going to the basis of breath proval. Moreover, judicial notice is beyond a reasonable doubt by the testing have had limited success. By not conclusive and the defendant Commonwealth on the basis of a test statute, test results are admissible was not prohibited from introduc­ result, then the testing procedures are if they are " performed on devices ing evidence to disprove the fact. the focus of challenge and scrutiny; approved by the Department of The jury was free to accept or re­ challenges raised during the last ject his argument. 1 several months suggest exploration of Thus, by statute, device reliability alternatives to breath testing to deter­ is prima facie demonstrated. mine blood alcohol concentration. The problem with breath testing Controversy has centered recently lies not in its theory nor in the devices on the use of the Smith and Wesson employing that theory. Breath testing Breathalyzer Model 1000, the pres­ accomplishes, within statistical ent breath testing device of choice in tolerance, what it purports to ac­ Western Pennsylvania. It, and all complish. The difficulty is rather in other breath testing devices, proceed the potential for perception in the on the premise that blood alcohol eyes of a factfinder of a problem in levels can be determined by sampling such testing. Test results are not con­ breath. In the alveoli of the lungs, clusive. They are evidence to be as­ where blood is oxygenated, molecules sessed, weighed, and evaluated by of alcohol diffuse and achieve equi­ juries. And, as with all evidence, test librium with air. Applying elementary credibility is for determination by the physics, a ratio between alveolar air factfinder, which is free to reject even alcohol and blood alcohol is deter­ the scientifically credible. As long as mined and a blood alcohol concentra­ the challenge exists and can rationally tion deduced. l n the challenged be presented to a jury, so too does the device, once a fixed amount of air is Health. " 1 Legislative approval of a ability of counsel to raise a reason­ captured, it is bubbled through an testing method elsewhere has been able doubt as to the results veracity. ampoule containing an alcohol sensi­ deemed sufficient to satisfy the Police officers direct traffic, patrol tive reagent. l f alcohol is present, it threshold for admissibility; Pennsyl­ communities, carry weapons, mediate reacts with and effects a color change vania precedent suggests a similar disputes, administer first aid, listen to in the reagent Gust as litmus paper deference to the legis lative complaints, make arrests, stop fights, changes color in acid). A photo elec­ judgment. • For the same reason, evi­ rescue lost children, and daily engage trical system measures color change dentiary challenges based on the ac­ in a myriad of other tasks. They also, and correlates change to alcohol con­ curacy of specific types of testing in drunk driving cases, conduct scien­ centration. Other devices, such as the devices have been avoided. Recently, tific experiments. When they do so, CMI lntoxilyzer® in use by the Penn­ tests showing that breath testing they then must come to court as ex­ sylvania State Police, use no reagent, machines can be inaccurate in the pert witnesses whose function, based but measure alveolar air alcohol by presence of electromagnetic fields on forty hours of training, is to recording absorption of infra-red generated by radio transmission have provide testimony concerning the energy passed through a sample. surfaced. With the Smith and Wesson method of breath testing they em­ There, absorption of energy by 1000, the manufacturer's response ployed, explain the procedures they alcohol molecules correlates to blood has been held sufficient to establish foll owed, and upon that training ex­ alcohol concentration. admissibility of the test results. press an opinion as to one's blood Breath testing is clearly scientific Smith & Wesson became aware of alcohol concentration. In so doing evidence. Attacks on the evidentiary the problem with radio interference they bear the burden of making their use of breath testing devices have common to the machines which test results accurate and reliable in the

12 from the role of expert witness; be performed by a clinical labora­ eyes of the factfinder. others must fill the gaps. It is here Can police officers adequately ex­ tory licensed and approved by the that confusion has existed and diffi­ Department of Health for this pur­ plain breath testing principles to a culties encountered. pose using procedures and equip­ jury? Can they be expected convinc­ Blood testing for alcohol, accord­ ment prescribed by the Department ingly to respond to complex questions ing to most clinical handbooks, re­ of Health. For purposes of blood of scientific theory and to its applica­ quires taking about 5 mi. of oxalated tion to the internal mechanism of a .. . testing, qualified person means blood. Typically, a nurse or techni­ device they use? And do Common­ an individual who is authorized to cian') will, in a procedure we all know wealth objections to cross-examina­ perform those tests under the act of and many dread, cleanse a site with a September 26, 1951 (P.L. 1539, tion on the basis that the questioning solution not containing ethyl alcohol is beyond the witness's competence No. 389), known as "The Clinical 0 (to avoid contamination of the sam­ serve to enhance his credibility in the Laboratory Act. " ' ple), •• insert a syringe into a vein, and eyes of a factfinder? Admission of results is dependent with it extract blood. The sample is If the Commonwealth is to prove upon the laboratory at which testing transferred into a vial containing an blood alcohol concentration, why not is done. Reliability of the results is anticoagulant and transported to the test blood instead of breath. Forgot­ guaranteed by routine inspection, laboratory for testing. There it may ten in the present controversy con­ quality control, and periodic assess­ be handled by several different people cerning breath testing is the availa­ ment of proficiency of the laborato­ and may be accessible to still others. bility of the alternative in determining ries performing blood alcohol testing. Venipuncture is a routine enough blood alcohol by testing blood. Analysis of blood for alcohol is con­ procedure for medical personnel; Prior to 1983, blood testing was sidered a " specialized analyticallabo- nonetheless, finding "good" veins disfavored by the General Assembly. and inserting needles into them far As a general rule, it was legislatively enough to penetrate and without authorized only if the suspect was piercing through into other tissues is "physically unable to supply enough touted as an art. And care must be ex­ 6 breath to complete a chemical test. " ercised not to break off the needle in Act289,ontheotherhand,abandons the vein thus requiring its surgical the statutory preference for breath removal. It is not a procedure for testing and places direct blood testing amateurs. It certainly is not a proce­ on an equal footing, subject to the dure for police officers. discretion of the arresting officer. Hospitals, physicians and nurses Given the increased availability of are immunized from tort liability blood testing as a procedure, its use associated with properly drawing can be expanded and the questions, blood samples and face no liability or risks, and controversy surrounding claim of breach of privilege in report­ breath testing minimized. ing results. " But hospital and other medical personnel have expressed A. PROCEDURES FOR another reservation about drawing BLOOD TESTING blood samples not addressed by stat­ I B lood testing may, as breath test- ute, namely, the expenditure of time. ing, be conducted pursuant to Needless to say, hospitals function statute. All drivers in the Common­ best with technicians and chemists in 1 wealth are "deemed to have given the hospital and not in court; person­ consent to one or more chemical tests nel in the courtroom negatively can of ... blood ... for the purpose of ratory service" requmng special impact patient care. The expressed determining the alcoholic content."' Department of Health licensure.'' Of reservation is that involvement in Consent is deemed given if and only if all the laboratories in Pennsylvania, blood sampling inextricably inter­ a police officer has "reasonable as of this writing only 127 have been twines them in a protracted evidenti­ grounds to believe" that the defen­ deemed proficient and qualified to ary chain of custody. Such simply is dant had been operating while under perform blood alcohol analyses; of not the case. the influence. • Upon a showing of those, sixteen are located in Alle­ Chain of custody of blood samples probable cause and a lawful arrest gheny County. 12 Yet to say that blood was considered by the Superior Court based on that probable cause, an of­ can be drawn and that it can be in Commonwealth v. Rick, 244 Pa. fi cer need only request that the defen­ analyzed and that perceived problems Superior Ct. 33, 366 A.2d 302 (1976). dant supply him with a sample of in breath testing are thereby avoided, There, admission of the results of blood for chemical testing and at the is to minimize the issues believed by blood testing was challenged. The same time warn him that failure to do many (as confided to the author) re­ sample, after being properly drawn, so will result in Joss of his operating stricting use of the method. Blood had been taken to the hospital labora­ privileges. 9 must be extracted by someone. It tory by an "unknown laboratory Once blood is drawn, for its analy­ must be handled by someone enroute technician" and had been placed in a sis lawfully to be admitted, it must be to the place of testing. And someone laboratory refrigerator readily ac­ tested in a properly licensed clinical must testify to the test results. Use of cessible to many hospital employees. laboratory: blood testing procedures permits Defendant raised two claims, the first based on a gap in the chain of custody Chemical tests of blood ... shall police officers to remove themselves 13 due to the " unknown" technician tubes of blood. The technician then producing witnesses whose proce­ who did not testify, and the second labeled the tubes and signed a dures are observed by one competent based on the possibility of tampering. custody form showing that the to testify about the technique fol­ In summarily rejecting the argument, tubes were given to Pierson. Pier­ lowed, we can dispense with the need the Superior Court concluded: son ... went to the police station, for producing any medical witnesses [l)t is well established that the and called [a clinical laboratory] to with direct knowledge. Or perhaps Commonwealth need not produce make arrangements to deliver the one can. every individual who came into tubes to the laboratories. When The Pennsylvania Uniform Busi­ contact with an item of evidence, told that no one was present at the ness Records as Evidence Act, 42 Pa. nor need it eliminate all possibili­ laboratories to receive the tubes, C.S. §6108, permits the "record of an ties of tampering. The Common­ Pierson went home and placed act, condition or event" when rele­ wealth need only establish a 'rea­ both tubes in his refrigerator some­ vant, to be received as " competent sonable inference that the identity time between 3:00 and 4:00 a.m. evidence" upon the showing of an and condition of the exhibits re­ On January 2, Pierson called the adequate evidentiary foundation." mained unimpaired until they were laboratories again, and was in­ The Act applies to hospital reports surrendered to the court.' Com­ formed that he could deliver the and records. Tempered by a constitu­ monwealth v. Miller, 234 Pa. tubes the next day. On J anuary 3, tional right of confrontation," a line he delivered the tubes to an em­ has been drawn between admissible ployee of [the laboratory]. To Pier­ hearsay in hospital records and inad­ son's knowledge, no one touched missible hearsay. Medical "fact" is or tampered with the tubes while admissible; medical "opinion" is not. they were in his refrigerator (indeed Although the distinction between he said his wife and children were "fact" and "opinion" is clouded, 'Courts and 'petrified' that he was keeping blood alcohol test results have been human blood in the refrigerator), held to be in the realm of "fact" and legislatures have and no power shortages occurred. hence admissible by means of the re­ now accepted the Based on this testimony, in reliance port itself. Commonwealth v. Seville, on Rick, the Superior Court con­ 266 Pa. Superior Ct. 587, 405 A.2 blood test as cluded that a foundation sufficient 1262 (1979). for admissibility had been demon­ ''undeniably strated. Although the technician who drew the blood did not testify, the accurate" ... ' court concluded that Officer Pierson could testify about her procedure and technique based on his observa­ 'Venipuncture by tions, and that her testimony was superfluous. police officers... Perhaps we appropriately can dis­ ''shocks the Super. 146, 155, 339 A.2d 573, 578 pense with the requirements of pro­ (1975). See also Commonwealth v. ducing all members in a chain of conscience'' and Jenkins, 231, Pa. Super. 266, 332 custody if one witness can observe the A.2d 490 (1974). In this case, the routine procedures followed by offends a "sense Commonwealth has met that others. But surely this would not of justice. '" burden of proof. apply to the ultimate testing. Must The Rick formulation, despite not the particular hospital chemist challenge, •• has uniformly been fol­ who tests blood testify? The answer lowed in drunk driving cases. Com­ appears to be that he does not. pare, e.g., Commonwealth v. Benson, Commonwealth v. Gilbert, 254 Pa. 280 Pa. Superior Ct. 20, 421 A.2d 383 Superior Ct. 579, 386 A.2d 101 (1980). ( 1978), presented the si tuation of one In Seville, defendant was convicted Who, then, must testify? If one chemist testifying to the procedures of driving under the influence of were to suggest that the technician of another. The test was performed in alcohol. The blood alcohol concen­ who drew the sample must, he would the witness's presence and under his tration was introduced, over be wrong. Such a contention was supervision. Testimony further was strenuous objection, via the hospital raised in Commonwealth v. A rizini, elicited showing that he checked the report. The evidence was held ad­ 277 Pa. Superior Ct. 27, 419 A.2d 643 process and his colleague's calcula­ missible. Concluding that the results (1980). There, a police officer named tions. Affirming Gilbert's conviction, of blood alcohol testing were medical Pierson, who investigated a traffic the Superior Court found these facts, the Superior Court observed: accident, testified as follows: circumstances sufficient to show Current experience teaches the At approximately 2:42 a.m. [on result reliability and concurrent practice of drawing and testing o f January I], a laboratory technician admissibility. blood for alcohol content is a mat­ washed appellant's arm with a soap But surely Gilbert is a unique case. ter particularly within the ambit of and water solution, tied a band One would nevt;r suggest that if one basic and routine hospital proce­ around the arm. and drew two can eliminate the evidentiary need of dure. The standardized precise

14 calculations used in arnvtng at a on hospital witnesses, and serves to U.S. 432, 77 S. Ct. 408 (1957). final result leave little room for make the ultimate reading accurate, But one microliter is about one and error. 405 A.2d at 1265. in that it permits a jury easily to con­ one-half drops o f blood. A technique It concluded: clude that the sample remained unim­ paired until and through the time of other than venipuncture, experi­ There is nothing in this record or in testing. mented with for blood alcohol read­ the pertinent authorities which ings but occasionally, exists for the would suggest the result of a blood B. THE FUTURE OF collection of this small quantity of blood. A finger prick for capillary alcohol test is a matter 'seriously in BLOOD TESTING issue and the subject of conflicting blood, such as used in rudimentary opinion by qualified physicians.' he fear exists that the argument blood typing, supplies the required made above may not persuade [Commonwealth v.] McCloud, T quantity. On a sliding scale o f reason­ [457 Pa. 310, 312, 322 A.2d 653, everyone. Just as concerns about ableness and invasiveness, a police 655 (1974)]. Rather, we are per­ breath testing (or rather its potential administered finger prick for capillary suaded the test is in the realm of for rejection by juries) prompts ex­ blood, based on a statutory authori­ ploration of alternatives, doubts as to medical fact. Courts and legisla­ zation and coupled with adequate full cooperation by local hospitals tures have now accepted the blood training, satisfies, at least for this (perhaps totally without foundation) test as ' undeniably accurate' and author, a test of reasonableness. triggers inquiry into the possibility of we will not burden the Common­ Venipuncture by police officers is wealth with producing witnesses to avoiding the need of relying on hospi­ conduct that " shocks the conscience" establish a fact which experience tal technicians or other local medical and offends a "sense of justice," has proven to be trustworthy. personnel to draw blood samples. Breithaupt v. Abram, 352 U.S. at 405 A.2d at 1265-64. 437, 77 S. C t. at 4 11. A controlled, safe, automated finger prick for l am not suggesting that all wit­ capillary blood, when administered nesses be excused and that blood by trained officers does not offend alcohol calculations be received as my conscience (nor those of consulted evidence without scrutiny. Indeed , I police officers). assert the contrary view. Admissi­ More than a quarter of a century bility of test results is one considera­ ago, the Supreme Court observed tion, but admissibility is but one that " [m]odern community li ving re­ aspect of the trial of a drunk driving quires modern scientific methods of case. Just as breath test readings are crime detection lest the public go un­ subject to a jury's assessment of protected." Breithaupt v. Abram, credibility, reliability, and weight, so 352 U.S. at 439, 77 S. Ct. at 412 (ap­ too are blood test fi gures. What I am proving the use of blood tests for suggesting is that a number of the alcohol detection). Can technology concerns surrounding blood testing, respond to a felt need? If technology from the point of view of potential can respond, I can envision portable, wi tnesses, may be illusory, and that disposable, and safe blood sampling means for alternative sources of kits. A suspect merely could, upon essentially corroborative or "minor" consent, insert his cleansed finger testimony accessible. into a device. With a push of a The following, based on procedures button, an officer could, without ri sk in use in Allegheny County, is sug­ When blood alcohol is measured by to the suspect, extract the miniscule gested. Police officers, on the author­ gas chromatography, as is done in amount of blood needed for gas ity o f Arizini, cited above, should Allegheny County, 19 approximately chromatography a nalysis and trans­ witness all blood sample extractions one microliter (.1 ml) of blood is con­ port the sample in a sealed unit di­ and note and record the type of solu­ sumed. I am not proposing that rectly to a central clinical labora tory, tion used to clean the sample site, police officers be authorized to draw and thereby bypass and avoid impos­ thus avoiding any claim of contami­ venous blood or attempt any form o f ing upon the good graces of local nation. Samples should be taken by free-hand venipuncture. Moreover, hospitals and medical personnel. A the arresting officer himself, without none of the police officers with whom need is there; a solution seems, at adding other people to a chain of the concept informally has been dis­ least to those who repose confidence custody, directly to the clinical labo­ cussed consider it an appropriate in technocrats, possible. ratory where testing is to be done. police procedure. Indeed, to do so Perhaps the most compelling reason And, once there, the officer should would be to " invite an unjustified ele­ for advocating development o f a test­ hand the sample directly to the toxi­ ment of personal risk of infection and ing device of this nature is evidentiary cologist who will perform the blood pain," Schmerber v. California, 384 in origin. Alcohol once consumed is alcohol analysis, a routine started by U.S. 757, 772, 86 S. Ct. 1826, 1836 absorbed over a period of time into and used with great success by the ( 1966), and as such lacks the sense of the bloodstream and then gradually is Allegheny County Department of reasonableness needed to insulate the dissipated. Over time, after consum­ Laboratories Toxicology Lab. Adher­ procedure from fourth amendment ing alcohol, blood alcohol concentra­ ence to such a protocol shortens any censure and due process condemna­ tion rises, pea ks, and then falls. 20 chain of custody, reduces demands tion. See Breithaupt v. Abram, 352 Breath samples at a police station or

15 blood at a hospital are taken not at the time of arrest - the critical statu­ tory time in terms of proof - but 2 some time thereafter. ' Pennsylvania law specifies no set period of time after arrest when sam­ pling must be conducted, 21 and ex­ perts are permitted to testify as to .. ,0 0 ' rates of absorption a nd elimination of alcohol and from that data ex­ trapolate a percentage of blood alcohol saturation at the time of driv­ ing. 23 Although admissible and probative if accepted as reliable by the factfinder, extrapolated blood alcohol readings are viewed with skepticism and regarded with cau­ tion. See Couts v. Ghion, 281 Pa. Superior Ct. 135 , 42 1 A.2d 1184 (1980) (plurality opinion); Schwarz­ bach v. Dunn, 252 Pa. Superior Ct. 454, 38 1 A.2d 1295 (1977) (plurality opinion). Portable, on-the-scene, blood sampling devices can move test results to the time of the relevant inci­ dent and eliminate not only questions relating to breath testing accuracy, but eliminate the need for evidence " relating back" a blood alcohol test to a time before it was administered.

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16 If technology can respond, effective 17 The record's foundation is com­ toxication: A Challenge to Ad­ law enforcement would doubly be pleted "if the custodian or other missibility, 66 MASS. L. REV. 23 served. qualified witness testifies to its (1981). •A.B., J.D., University of Pennsyl­ identity and the mode of its prepa­ 2 1 Indeed, to allow dissipation of vania; Assistant District Attorney, ration, a nd if it was made in the residual mouth alcohol and pre­ Allegheny County, Pennsylvania; regular course of business at or vent a false high reading, breath Adjunct Professor ofLaw, Duquesne near the time of the act, condition teating first requires at least twenty University. This commentary is based or event, and if, in the opinion of minutes of observation and wait­ on remarks prepared for the /983 an­ the tribunal, the sources of infor­ ing, 67 PA. CODE §77.5, during nual meeting of the Pennsylvania mation, method and time of prepa­ which time blood alcohol concen­ Driving Under the Influence Associa­ ration were such as to justify its tration can change. Delays en­ tion, and relates to the confer­ admission." 42 PA. C.S. §6108. countered at hospital emergency ence theme "DUI: The Forgotten 11 U.S. CONST., amend. VI; PA. rooms require no explanation. Aspects." CONST., art. I, §9. 22 See Commonwealth v. Tylwalk, 19 The Toxicology Lab currently uses 258 Pa. Superior Ct. 506, 393 A.2d FOOTNOTES a Sigma 4B gas chromatograph 473 (1978); compare Common­ equipped with name ionization wealth v. Arizini, supra. 1 Act of December 15, 1982, P.L. , detector. 23 Commonwealth v. Arizini, supra; No. 1982-289, §9, 75 PA C.S. 2° For an enlightened discussion of Commonwealth v. Reynolds, 256 §3731 (a) (4). the blood alcohol curve and the Pa. Superior Ct. 259, 389 A.2d 2 See F.R.E. 901 (a). questions involved in the timing of 1113 (1978); see United States v. 3 75 PA. C.S. §1547 (c) (1). testing, see Fitzgerald & Hume, DuBois, 645 F.2d 642 (8th Cir. • See, e.g., State v. Brockway, 2 The Single Chemical Test for In- 1981). Ohio App. 3d 227, 441 N. E.2d 602 (198 1); compare S. H. Goss, Inc. v. Department of Agriculture, 58 Pa. Commonwealth Ct. 5 16, 428 A.2d Dlorking &tubtnt JAlut.& 731 (1981). 5 Commonwealth v. McGinnis, 33 Jja.st ni~ until a mibnigltt brraru Cumberland L.J. 432, 435 (Pa. OOnrr morr ) ponbrrrb wrak anb wraru C.P . 1983). ®urr uolumrs of .somr lrgal torr. 6 Act of June 17, 1976, P. L. 162, No. 8 1, § I (repealed).

he recognition of judicial powers to choose." Perhaps the problems in­ is his experience that both the elective T is indispensable to the mainte­ herent in the current system cannot be and appointment methods have nance of our society. Judges can in­ countered by changing the method of worked well. This stands confirmed carcerate or alter one's economic judicial selection. Maybe what is by his unique path into the judges status with a bang of the gavel. Can needed is a change of rules. chambers. On whether he feels his traveling different paths to the robe The importance of the role judges role on the bench is affected by the through election or appointment af­ play in adjusting and preserving manner in which he has been put into fect a judges performance? Judge democracy and refining the law is un­ office, he states, "It shouldn't have Robert E. Dauer, Administrative questioned. The qualities a good any effect, because once you are on Judge for the Criminal Division, judge should possess are also general­ the bench, you should not be be­ Judge Henry R. Smith, Jr., and ly agreed upon. Judges Dauer, Smith holden to anybody or anybody's Judge Alan S. Penkower also of Alle­ and Penkower believe that qualities of point of view, whether it be the gover­ gheny County Criminal Division have "integrity, patience, varied experi­ nor who appoints you, or the political given their views on the merits of ences and a working knowledge of the leaders who support you, or the these processes to Juris. law," are necessary. Judge Dauer, lawyers who contribute to your cam­ By now, the current issue concern­ who has been on the bench eleven paign, or voters, be their support ing the " Merit Selection" of judges in years, feels that an attorney with ex­ ethnic, geographic, or economic. Pennsylvania has reached ears far perience advocating both sides of the However, everyone is human and the beyond the legal community. The issues (a previous magistrate for in­ subconscious influences on decision­ public is always interested in issues stance), is the epitome of one who making is something that is inborn to surrounding judicial integrity. The possesses the skills needed to begin as a certain extent. Your personality, concern most often aired in the media a good judge. But he adds, "back­ character and philosophy, those over appointments and elections is grounds are so varied that its hard to things which are a part of you, force usually predicated with the qualifier, say what makes a good judge until he you to approach issues based on who "we'll never take the politics out of is a judge." you are and how you operate." He the process anyway." It is agreed that the foundations of further notes that "one thing going Since 1681, when the Royal Charter the judiciary are seldom in dispute. through an elective process did is bestowed William Penn with the What is increasingly controversial is humble me and keep me in touch with power to appoint and establish the methods upon which candidates people.'' judges, there has been ongoing debate are installed onto the bench. Gover­ This is the core of the argument for over how judges should reach the nor Thornburgh is presently support­ keeping the elective process: that bench. The underlying argument over ing a constitutional amendment to voters get to know the persons who the appointment versus the election replace the current system of state will be judges. However, the majority process should be concentrated on which constitutes the most effective use of the system, and not on whose THE JUDGES TALK politics are more powerful. BY CHERYL R. LEE Inherently, politics will continue to TO JURIS be a part of whichever system is used. judicial procedures with a merit selec­ view, according to the Judicial Selec­ For most intents and purposes we tion committee which would select tion Governance Study prepared by have come to accept this idea. The and nominate candidates to the the Committee of Seventy in Phila­ contraction arises when we as a peo­ governor for his final decision. The delphia this past September, is to ple oppose the politics we so passion­ debate following this proposed adopt a commission to identify and ately fight for. If we accept democ­ amendment is destined to have tre­ nominate candidates. This is consis­ racy as the political system which mendous impact on how Pennsylva­ tent with the controversial constitu­ this country lives by, it should come nia judges are selected. tional amendment presently being as little surprise that politics will Judge Penkower finds himself in an considered. The study says the ap­ guide all governmental activity. Why interesting position. In May of 1983, pointee, after havi ng served a short should the appointment or election of he had won both the Democratic and probationary term of office, would judges be treated differently? Republican nominations and there­ run in an uncontested non-partisan Edward Zemprelli in an October fore ran without opposition this retention election (as judges do at the 20, 1983, Pittsburgh Post Gazette November. Presently, he is the only end of their ten year terms when seek­ Editorial said, " Anyone who thinks appointed judge in Allegheny County. ing re-election), giving voters a that the selection of judges (according He is also running for the full ten year chance to decide who should be given to a merit selection plan) will take term in the seat recently vacated by full terms on the bench. Under reten­ politics out of the process is naive. As Judge Zappala's election to the Su­ tion, judges present to the voters only long as the process is going to be preme Court. As to the advantages of their records while in office, as the political, leave it in the hands of the being put into office under one basis for evaluation. electorate and allow it the opportunity system or another, Penkower feels it Arguably, the majority view may

18 establish campaign committees for discourage problems of pressuring Lion, under retention there have been this purpose; candidates into taking sides publicly only three judges defeated through­ on controversial issues and relieve the Candidates shall not hold a posi­ out the state; none having ever been need to raise so much money usually tion of profit in the United States defeated on a retention basis in Alle­ needed to support an all out cam­ government or Commonwealth or gheny County. Even under retention paign. This economic aspect is what I any political subdivision, except in Judge Dauer is sure that if he did places candidates in compromising the armed forces; something to alienate, "the political positions that could possibly affect Candidates shall not violate any bigwigs around here, they could the ability to be impartial. Some feel canon or legal or judicial ethics campaign against me." these factors are inherent in our cur­ prescribed by the Supreme Court; Generally, these judges feel that in rent system. Candidates shall not be paid or ac­ the course of decision making, when The Code of Judicial Conduct §204 cept any fee or gratuities for any a political heavyweight is involved, Pa Code Canon I and PA Constitu­ judicial duty or service connected judges do weigh those things, but tion Article V, § 17 impose severe with his office other than salary they are ultimately led to find un­ restrictions on the judges conduct which is provided for by law. biased law. Dauer says, "In these J during the election campaign: times you must have a pretty strong "Anyone who thinks that the selec­ Judges shall not engage in the prac­ personal constitution, knowing a de­ tion ofjudges (according 10 !he meril tice of law; cision may affect eight million votes, selection plan) will take politics ou1 of and you like those eight million votes. A candidate may identify himself !he process is naive. " or herself as a member of a Whereas if you are appointed, par­ political party and; Again, all these limitations whether ticularly for life, like the federal May speak to such gatherings adhered to or not, could arguably af­ judges are, then you can disregard during the campaign, but; fect judicial functions after the elec­ any political pull." He knows, A candidate shall not act as a tion. Another real question is whether "appointment of judges will not en­ the retention arrangement truly dis­ tirely eliminate politics, because the leader or hold office in a political 'appointors' who recommend you to party or organization; courages these things. Judge Dauer says, "retention does take some of the governor for appointment will Candidates should not make the pressure off, because unless there still be involved, [as well as) those speeches for a political organiza­ is a concerted effort to get you off the who appoint the 'appointors'." This tion or publicly endorse any bench, you are probably going to be seems to be the consensus of opinion candidate for office; re-elected." Retention enables a among these three judges, as well as Candidates shall not engage in any judge, for the most part, to forego a most who are involved in this debate. activity prohibited by law; political campaign, since the candi­ Temple University President Peter Neither can a candidate solicit or date only runs on a yes/ no basis. J. Liacouras, former dean of accept financial support but must According to Judge Dauer's recollec- Temple's Law School said in another University of Santa Clara School of Law Summer Study Law Abroad - 1984 • Tokyo, Japan • Oxford, England Emphasis on U .S.-Japanese trade. Students live in 15th century Oxford Courses in Japanese Legal System, College and are taught by Oxford Japanese Business Law, Regulation professors in Oxford Tutorial of U.S.-Japanese Trade. Internships Method. Course offerings include available with Japanese law firms and APPROVED BY THE AMERICAN Jurisprudence, European Economic corporate law departments. Instruc­ BAR ASSOCIATION Community Law, Legal History, tion by U.S. and Japanese professors For further information, contact: Computers and the Law and various and practitioners. Visits to govern­ Director, Summer Overseas comparative courses. mental offices and company legal Programs departments. University of Santa Clara • Hong Kong/ Singapore • Strasboarg, France School of Law Santa Clara, CA 95053 Emphasis on Hong Kong and Geneva, Switzerland (408) 984-4162 Singapore as the commercial foci for Emphasis on international human To reserve your place, please in­ U.S. trade with China and Southeast rights and public international law. clude a $100.00 deposit. Asia. Subject areas include financing Taught by recognized experts from and taxation of international transac­ around the world. Affiliated with tions through Hong Kong, commer­ International Institute of Human cial arrangements in Southeast Asia, Rights (Strasbourg) and Henry and the emerging commercial struc­ Dunant Institute (Geneva). Courses ture of the People's Republic of on Sources of International Law, In­ China. Internships available with ternational Organizations, Human Hong Kong law firms and corporate Rights, Protection of Intellectual law departments or students may Property and Humanitarian Law. In­ elect a new academic component to ternship possibilities. be held in Singapore. 19 Post-Gazette article while testi fyi ng sion, may lessen the chance of mi­ enced as they strive to be independent before a Senate committee consider­ norities. The appointing authority thinkers and to do what the law says ing the proposed state judicial consti­ would have a greater control when must be done. Possibly appointed tuio nal amendment, "(selection pre-selecting candidates than a n elec­ judges may feel less of a connection panels) would merely replace the poli­ tive process. Using the appointment to the people" , but Judge Smith sees tics of popular election with the in­ process has been a concern of many this possibility in elective situations ternal politics of "elitist groups. " minority groups, who feel they per­ also. He says, "the retention experi­ Zemprelli 's editorial reinforces haps lose their opportunity to get out ence has been so good, judges tend Liacouras' argument by saying, " I and compete." not to be quite as concerned with expect that special interests will be Judge Penkower says that, " be­ what the political party says." Per­ making exorbitant political contribu­ cause of polit ics the election process haps this is the closest the elective ti ons to those who appoint the nomi­ may enable an "unconventional" system may come to complete ob­ nating commission." type candidate to get into office, even jectivity. Is it safer to completely Again the role of politics is deeply someone whose legal experience is remove the public policing power, by ingrained in both the election and ap­ extraordinarily limited." In his opi­ installing a direct gubernatorial ap­ pointment process. Accountability nion, "that is unlikely to happen pointment system? has to be the single most important under an a ppointment system where The answer may lie in the distinc­ factor of whatever process Pennsyl­ there are certain standards that the tion between a republic and a democ­ vanians decide upon. In the absence selecting body employs." Judge racy. In a democracy, power vests in of a better plan, is there a need to Penkower sees the attributes of both the citizens only through systems of change the present system at all ? a special merit selecti on appointment representation. The original idea of According to the Judicial Selection commission and electorate proce­ William Penn's ti me was to elect a Governance Study, retaining the elec­ dures. He says, "his experience has governor, vesting in him the powers tive system is the minority view. The been the least orthodox he has seen so to decide matters such as judicial ap­ democratic principles behind elec­ far." pointments. Perhaps our trust should tions are most likely what sustains the be further extended to the governor, elective idea. A most timely idea is enabling him to make direct guberna­ that elections refl ect society's judge­ torial appointments, without so much ments about candidates, and as long controversy. Or perhaps, as in a re­ as that remains true, the elective public, the administration of judicial forum should always be available in a affairs should be open to all Pennsyl­ democracy. va nians through the election process. If the truth about society is re­ As elusive as the judiciary may be fl ected in elections, then do uncon­ to those here and beyond the legal venti onal type or minority candidates community, its lawyers, aspmng fi nd a beller forum in either election lawyers and the judges must be re­ or appointment arrangements? Judge sponsible for the pursuit of change, Dauer feels , " party politics in an elec­ The dark horse opm10n is direct be that pursuit obvious or obtuse. tive procedure may deny a qualified gubernatorial appointments, whi ch The reality is this constitutional candidate access to the bench, eliminates the need for any selection amendment must be voted upon whereas the appointment procedure commission. Peter Liacouras sub­ democratically through our elected would not. In an appointment situa­ scribes to this opinion. He says in the senators. One good example of our tion a minority candidate would Post-Gazette article, "if Pennsyl­ faith in democracy is embodied in PA probably be appointed on the basis of vania's system of choosing judges is Constitution Art. V wh ich says, his qualifications and for the reason of to be replaced, it should be by direct " Judicial seniority is not measured his minority status." There are after guberna torial appointments." from the time judges assume office all only two women and three black Judge Penkower and Judge Dauer entirely, elected judges will have j udges on Common Pleas Court out expressed their admiration for how seniority over appointed judges." o f a total thirty-nine in Allegheny well the federal judiciary system Yet, no matter how the issue is County. "Admittedly," Judge Dauer works. Federal judges are appointed couched, forgetting all the pros and says, "there should be more black for life. Judge Dauer felt, " if you 're cons therein, one point remains per­ and women judges." going to appoint a man, appoint him fectly clear. Judges, be they elected or Judge Smith notes that, "be they a for life. " Surely there is true freedom appointed, will continue to serve the member of a racial or ethnic minori­ from public protests concerning people. As long as all facets of society ty, or someone who is just not popu­ judicial decisions. The argument for a re responsibly represented, and the lar with the political party, or some, maintaining the election process realities a re reasonably clear, the con­ who are not comfortable with going breaks down at this point. "Of course stitutional amendment debate is through the political process, at least elected judges are more conscious of wholesome and should continue as in elections [he] has a chance of public response to their decisions," long as necessary. becoming a judge. Under an appoint­ Judge Smith acknowledges. "Judges ment system, the appointing author­ have concerns for public attitude, ----JURIS ity, when it is a process of nominatio n they may actually give some credence and recommendation to the governor and consideration to wha t public feel­ by some type of Board of Commis- ings may be, but may not be influ-

20 ~------Book Review WILD JUSTICE

A treatise on revenge as an accept­ able reason for punishment must inevitably deal with capital punish­ WILD J USTICE ment and Jacoby devotes an entire By Susan Jacoby, chapter to the subject. It is here that Harper & Row, 1983. $17.95 she is least convincing. She emphatic­ ally makes her point that while revenge is an unobjectionable reason for punishment, it does not in any way follow that capital punishment is What though the field be lost? an acceptable expression of revenge. All is not lost- the unconquerable Jacoby's argument is that capital will, punishment inflicts more harm on And study of revenge, immortal hate, society than it does good as an And courage never to submit or yield: expression of outrage. But one is left And what is else not to be overcome. uncertain of the reasoning that leads John Milton, Paradise Lost to the conclusion that retribution can better be satisfied through a less drastic punishment. One expected a more compelling and persuasive argu­ ost of us regard acts motivated ment in such a thoroughly convincing Mby vengeance as immoral and book. Jacoby does expose the errone­ the desire for revenge as uncivilized. ous promises of both sides of the In Wild Justice, Susan Jacoby shows Jacoby argues that not all acts of issue. otherwise. Drawing on literature, revenge are perverse just as not all Our potential for mercy and for­ theology, psychology and sociology, eroticism is perverse. Normal desires giveness will best be realized when we she presents a fascinating study of and for revenge exist on a continuum with recognize revenge as a healthy ex­ case for revenge as a legitimate and abnormal desires. pression of a basic need. What, fundamental motivating force in the Though the impulse for revenge is Jacoby asks, can we expect of law and individuals' lives. normal, it must be restrained and victims? We are uncomfortable when Revenge has always been a central channelled appropriately. This is best victims express a desire for revenge. theme in literature and reflects our accomplished through a legal system Survivors of the Maidanek Nazi changing attitudes. For the classical which imposes punishments com­ death camp who became witnesses in Greeks vengeance was an act of mensurate with the damage done to the deportation hearings of Nermine heroism commanded by the gods. In the individual and society. Otherwise Ryan, a camp officer, were each modern literature it is the expression a victim will not accept the interposi­ asked by her attorney if they sought of someone gone mad, often because tion of the legal system between revenge. All replied that they desired the criminal justice system has set the himself and his attacker, but will seek justice. For Jacoby and her readers, object of his vengeance free. Retribu­ his personal revenge. Justice and the expression of these as exclusive tion is the abnormal desire of some­ vengeance are not opposites. A major concepts is absurd. one obsessed. element of justice is revenge. -Julia Wahl

CAVEAT: Let the Attorne y Be ware (Continued f rom Page II) "If a judge pronounce a judgment and after­ ward reverse it, he sha ll pay twelve fold the 11 Wm. B. Tenny, Etc. v. Dauphin Deposit Bank, 302 Pa. damages which were awarded, and they shall Super. 342,448 A.2d 1073 (1982). expel him from his seat of judgment, and he 19 Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). sha ll not return." 40 Anthony v. Koppers Co., Inc., 284 Pa. Super. 81, 425 THE CODE OF HAMMURABI, c. 2250 B.C. A.2d 428 (1981). 4 1 Skyline Builders, Inc. v. Kellar, 50 D. & C. 2d at 25 . 42 Anthony v. Koppers Co. , Inc., 425 A.2d at 436.

21 Wqr stubu of law qns not cqnngeb significnntlg sincr Blackstone's time. 1Euibence of tl1is plttnomenon is reprobucell below:

Jllor 1J tltink it ls paft bifpute tftat tltofe gentlemen. wfto refort to tfte inns of court witft a uirw to purfue tqe profeffion. will ftnb it expebient (wqeneuer it is practicable) to tau tlte preuiou.s founbations of Utis. as well as eueru oUter fcience. in one of our leamrb uniuerfrties. Die mau appeal to tlte experience of euery fenfible lawger. wqrtqer anu tfting can be more qa5arbou.s or bifcouraging tqan tqe ufual entrance on tlte ftubu of tqe law. A raw anb unrxprrienceb uout!t. in tqe moft bangerou.s feafon of life. is tranfpanteb on a fubben into tlte mibft of allure· menta to pleafurr. witltout anu refraint or cqeck but wqat qis own prubencr can fuggeft: witlt no public birection in wqat courfe to purfue qis enquiries: no priuate affiftance to remoue tfte biftrrffes anb bif· ficulties. wqicq will ulwaus embarufs a beginner. JJn tqis fttuation qe is expecteb to fequefter qimfdf from tqe worlb. anb bg a tebiou.s londu procefs to extract tqr tlteoru of law from a mafs of unbigeftdl learn­ ing: or elfe bg an affibuous attenbance on tqe courts to pick up tqeoru anb practice togetlter. fufficient to qualifu qim for tqe orbinaru run of buftnrfs. Jlfow little tqerefore is it to be wonbereb at. tftat we qeur of fo frequent mifcarriages: Utat fo manu gentle­ men of brigqt imaginations grow wearu of fo un­ promiftng a fearcq. anb abbict tftemfdues wqollg to amufements. or otqer lrfs innocent purfuit.s: anb tqat fo manu perfons of moberate capucitu confufe tqemfelues at ftrft fetting out. anb continue euer bark anb pu55leb buring tlte remainber of tqeir liues!

- tilnckstone. ®n tlJt &tullu of tl)e iGnw. renllln ®xforll at tl)t opening of tl)t ltlinerinn iGectures: 25 ®ct. 1758 noll founll in qis commentaries liJol. 1. p. 31 .

22 ALUM NEWS

JURIS welcomes reader suggestions and recommendations on Duquesne Law School graduates deserving recognition.

ichael J. Lydon, class of 1977, is Ma different breed of graduate from the Duquesne University School of Law. He has been a law clerk for Pennsylvania Supreme Court Justice Rolf Larsen since 1978. While he downplays his role in that capacity by characterizing himself as a "re­ searcher and writer", his concern for quality legal practice and education Michael J. Lydon, Esquire, DU Law '77 suggest a much deeper significance to his work. As a law clerk for Justice Larsen, When a pany starts fudging about such a program goes beyond provid­ Mr. Lydon has read countless briefs. what is on the record, it is kind of like ing a better legal education. As Mr. That exposure forms the basis for his a red nag. Fudging something that is Lydon explained, " such a program suggestion that effective advocacy re­ not there is damaging to your case." could provide a service to the com­ quires fighting the "urge to overkill". Mr. Lydon's observations and sug­ munity, especially now with all the He explained that, "you really do gestions are not limited to the practice cutbacks in legal aid programs. I your client a disservice by beating of law. He feels that the quality of think universities in general should be around the bush. You have to catch legal education can be improved by one of the bodies to try to fill the gap the Court's attention. To present mixing clinical programs with the that is left by the lack of funding." your case the most effectively, you do more traditional approach to legal JURIS acknowledges Michael J. have to leave out the kitchen sink education. "I think that Duquesne Lydon for his honorable career once in awhile. Be brief and be con­ could really help itself by getting choice. His practical and idealistic cise in anything that is written." more into clinical programs because it views on legal practice and education Another aspect of brief writing that is in a perfect location. Due to the speak well for the type of person he is concerns him is vagueness in reveal­ school's location and the number of and the quality of education he has ing what the record discloses. "It is alumni in the immediate area, they received. there on the record," he said. "When could really put an outstanding pro­ you go to the record, and we do, we gram together. It is a possibility that are going to see what is on the record. should be explored." The value of - JAMES J. BRUNO

"Judges ought to remember that their office is jus dicere, and no/ jus dare - to interpret law, and not to make law or give law. " FRANCIS BACON: Essays, LVI, 1625

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