WINTER 1983

THE DUQUESNE LAW SCHOOL NEWSMAGAZINE

Judicial Immunity Under Attack

Editor's Note

2

THE JUDICIAL OBLIGATION

T he judicial process is the hub of the wheel of justice. In more than 5,000 years of history, no other institution has disposed of human conflict so

thoroughly without violence. The court system has continually prevented the 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 in the minds of the general public because of their method in the disposition of disputes. Controversies are settled through a procedure and a mental process which is impartial as between the litigants, virtuous in its attempt to attain a just result and objective in that it has a large, comprehensive body of rules and law from which to make a decision.

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 itself to a simple system of controversy and predictable outcome. A judge must do more than extract from a judicial precedent the underlying principle. He must develop a path along which the principle can logically lead to the con­clusion 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 Patterson, "either one feels bound by the inexorable logic of an inescapable ratio decidendi or one is hemmed in by the pressure of legal history from cutting a new path."

Guides, or "methods," which provide the framework for the judicial process have been formulated by Justice Cardozo. These four methods, or as he called them, "directive forces, " were the methods of Philosophy, which explored the rule of analogy; the method of evolution, which followed the lines of historical development; the method of tradition, which was exerted through community customs; and lastly, the method of sociology, which was based upon justice, morals, social welfare and the mores of the day. These methods were intended by Cardozo to apply to the commonplace and the unique case equally. Cardozo 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 not so sure.

Obviously, "justice" and "social welfare" are vague terms about which all men, including judges, will differ. Judges are often unable, due to the traditions of their office, to have a choice. Cardozo was able to remain true to the desires of society and justice by premising his opinions in judicial dialectic which made use of narrow factual distinctions, thereby leaving historically established doc­trines untouched.

The application of law is not routine in all cases. Judges are able, through the 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 important concept. Judges cannot merely trust prior opinions. They must pay attention to the law in light of the circumstances of the parties involved in the litigation, and yet remain within the bounds of established doctrine. The failure to innovate, when necessary, will undermine 5,000 years of public confidence in judicial integrity and lead to "unjust results."

Sincerely,

ft~ G~ T ::,~~hj In this issue

3 JUDICIAL IMMUNITY UNDER ATTACK

BANK DEREGULATION :

Editor-in-Chief

9 CAVEAT:- LET THE ATTORNEY BEWARE

1 2 THE CASE FOR BLOOD TESTING

'-., n 1£ ~-'iNt.IAWSO IOClL:0.1:..'\\">.\IAGAJ'J:\l

VOL. XVIU No.2- Winter, 1983

Editor-In-Chief Gery T. Nietupski

Articles Editor Sharon N. Bogarad

Executive Managing Editor Francis A. Muracca

Art Editor Patricia A. Brooks Brisini

Associate Editors Cheryl A. Croyle James E. Murray

John T . Pion

Assistant Editors R. Kevin Brown, Jr.

Michael Duffy Anne Kozera James Orie

Cover Art and Illustrations Patricia A. Brooks Brisini

Photography R. Kevin Brown, Jr.

Faculty Advisor Patrick J. Basial

Senior Staff Martin Brennan

James Bruno Rose Consta ntino

Claudia DeArment Julie Wilson Valerie Merti

Matthew Polka Bruce Zero Secretary

Jan Paterson Cramer

JURIS is a student publication of the Duquesne University School of Law. Views and opinions expressed are not

necessarily those of JURIS or Duquesne University. All manuscripts and

comments may be addressed to JURIS, Duquesne University School of Law,

900 Locust Street, Pillsburgh, Pennsylvania 15282.

Telephone (412) 434-6305.

Copyright © 1983 Duquesne University

21 BOOK REVIEW

6 GARN-ST GERMAIN DEPOSI­TORY INSTITUTIONS ACT OF 1982 1 8 ELECT OR APPOINT: THE

JUDGES TALK TO JURIS

23 ALUMNEWS

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 plain­tiffs and changing public policy. "

There was a time in the long history of our jurisprudence when the

concept of bringing suit against a judge, whi le acting in a judicial capacity, was unthinkable. However, times have changed. Today, there is an alarming increase in the number of judges being sued, and the doctrine of judicial immunity, once considered an insurmountable fixture in the judicial process, has come under attack. Judges on all levels of the judiciary can no longer be secure from liability as new decisions have emerged with pressing demands to indemnify ag­grieved plaintiffs.

Historically, the concept of im­munity for judges can be traced to the administrative practices of Ham­murabi and the long standing applica­tion of "rex peccare non potest. " For our purposes, case law which dates to the 19th century has defined the parameters of the concept as applied in American jurisprudence. The con­cept that judicial officers were not to be the subject of civil liability for judicial acts done within their juris­diction was recognized by our Su­preme Court long ago, and such a rule remains viable as a general statement of law.'

In Bradley v. Fisher, 2 the Supreme Court stated the general principle of judicial immunity with the observa­tion that a judicial officer, in exer­cising the authority vested in him, "shall be free to act upon his own convictions without apprehension of personal consequences to himself."

However, this statement does not provide blanket protection. There were standards and distinctions enun­ciated in Bradley, such as the juris­dictional test and the availability of immunity only for "judicial acts." Specifically, the Court pointed out

that where there is no jurisdiction over the subject matter, any authority exercised is usurped authority. If the judge could be said to have acted in the "clear absence of all jurisdic­tion," he would be amenable to suit.

This standard, although strict, shows the first crack in the founda­tion which supports judicial immunity as it is only available to judges of superior or general jurisdiction. (There was a distinction in Bradley as to the standard applied.) While judges of general jurisdiction are only amenable to suit in the "clear absence of jurisdiction," judges of limited jurisdiction are potentially liable if they act in "excess of jurisdiction." Thus, at the time of the Bradley de­cision, it could no longer be said that judges were completely immune from liability. This led to much debate, notwithstanding the jurisdiction stan­dard to be applied, as to what consti­tutes a "judicial act."

With this background , a demon­stration of the difficulty in the appli­cation of this doctrine can be made upon consideration of the case of Stump v. Sparkman. 1 This contro­versy has most significantly fueled speculation of immunity in today's judicial arena.

In this case, Judge Harold D. Stump issued a court order in an ex parte proceeding authorizing tubal ligation on a fifteen year o ld g irl. The petition alleged that the girl was "somewhat retarded," although she attended public schools and had been "passed along with other children in her age level." It was further alleged that the girl had begun dating and staying overnight with men and that the mother could not "prevent unfor­tunate circumstances. "• No hearing was held, no notice was given to the

girl, no guardian ad litem was ap­pointed to protect her interests, and neither the petition nor the order was ever filed in the circuit court of the county.

The operation was performed with­out the girl being advised of the true consequences of the surgery . In fact, she was told that her appendix had been removed. Two years later, when the girl married, she learned for the first time that she had been sterilized.

The district court granted the de­fendant's motion to dismiss, holding Judge Stump was "clothed with ab­solute judicial immunity" so that neither he nor any of the other de­fendants were liable. '

The Seventh Circuit Court of Ap­peals reversed, holding that Judge Stump lacked both statutory and common law authority for his action. This court maintained that an ex­treme measure such as sterilization was not within his jurisdiction, hence he was not protected by judicial im­munity. With the traditional notions of judicial liability shaken to their very core, appeal was taken to the Supreme Court of the United States.

Justice White in his opinion for the court relied upon the Bradley defini­tions in addressing the two principle issues: (I) whether Judge Stump had acted in the "clear absence of all jurisdiction" in approving the sterili­zation petition, and (2) whether his consideration of the petition and court order constituted a "judicial act," so as to make immunity available.

In reversing the Seventh Circuit, Justice White stated that a judge would not be deprived of immunity because the action he took was in error or in excess of authority; rather, he would be subject to liability on ly if

3

4

he had acted in the " clear absence of all jurisdiction." Judge Stump, being a judge of general jurisdiction was en­titled to this more rigorous standard. The Court found that Judge Stump had "original exclusive jurisdiction in all cases at law and in equity what­soever . .. . and jurisdiction of all other cases, matters, and proceedings where exclusive jurisdiction is not confirmed by law upon some other court, board, or officer. " 6 Since there was an absence of case law or statutes allowing judges to authorize sterilization, the Seventh Circuit erro­neously inferred that he acted in the absence of all jurisdiction. It could equally have been inferred that such absence meant Judge Stump had jurisdiction. The fact that this was susceptible to differing interpreta­tions did not satis fy the strict juris­diction standard for liability.

In consideration of the second ele­ment as to whether the judge per­formed a " judicial act ," the Court set forth two factors as being disposi­tive of the issue. The first factor for such determination is whether the questioned action "is a function nor­mally performed by a judge. The sec­ond consideration is whether the parties dealt with the judge "in his judicial capacity. " ' Here, since the petition involved the affairs of a minor which judges normally con­sider, and Mrs. McFarlin submitted the petition to Judge Stump solely be­cause he was a county circuit court judge, his action was considered to be a "judicial act. " Therefore, the Su­preme Court held Judge Stump im­mune from suit.

Since the principle of judicial im­munity was upheld, why should we then assert its foundation is no longer secure? It should first be pointed out that this decision upholding the im­munity of Judge Stump was rather tenuous considering the vote was 5-3-1. The Court was barely able to muster a majority, and further, the judge was responsible for paying for his own legal costs. This may have been an indication of the general dis­approval o f the judge's actions, though a majority could not quite be reached to find him personally liable.

The dissent, as expressed by Justice Stewart, and joined by Justices Marshall and Powell, found that mothers do not "normally" seek judicial authorization for surgery, es­pecially one involving sterilization. Thus, the dissent maintained that the

judge here did not perform a "judi­cial act." "In sum, what Judge Stump did on July 9, 1971, was in no way an act normally performed by a judge. Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge either before or since. " ' The dissent was establishing the future vehicle for exceptions to the doctrine of judicial immunity . Realizing that the limitations defined in Bradley were difficult to reach, the dissenting court was attempting to restrict the scope of what could be classified as a "judicial act." By doing so, they were establishing the vehicle for bringing judges out from under the " clear absence of all jurisdiction" test when public policy dictated it should be done. In fact, Justice Stewart posited this very test of "policy" as to whether an act is judicial. '

Of course it can be argued that Stewart's comments are mere con­jecture and there is no proof to sub­stantiate the reading of the case as an attempt to limit the almost unreach­able standard of "clear absence of all jurisdiction. " However, it seems that an integral part of the legal profes­sion is involved in reacting to judicial trends. Consider that for the first time there was a substantial minority pressing for the personal liability of a judge. It would have been immaterial whether this was accomplished through the abrogation of the strict jurisdictional standard or by narrow­ing the activities which could be called "judicial acts." The point re­mains: a judge was found personally liable by a United States Court of Ap­peals, and there was no resounding reversal by the Supreme Court. Fur­ther, as has already been pointed out, the judge here was somewhat "pena­lized" by having to pay for his own defense costs.

There is a more recent case in which the Virginia Supreme Court was also " penalized" by not only having to pay for their own defense costs, but were also required to pay the plaintiffs attorney fees. In Con­sumers Union of the United States v. American Bar Association, ' 0 the Virginia Supreme Court claimed authority to regulate and discipline its attorneys. Pursuant to these powers, the court promulgated the Virginia Code of Professional Responsibility and organized the Virginia State Bar to act as administrative agency of the

court to report and investigate viola­tions of the Code. When one of the appellees sought to prepare a legal services directory, the attorneys who were canvassed refused to supply the requested information for fear of vio­lating the Code's prohibition against attorney advertising . Consumers Union then brought action in United States District Court under 42 U.S.C. § 1983 (1979 Supp.), against, inter alia, the Virginia Supreme Court and its Chief Justice in both individual and official capacities. The suit sought the declaration that Virginia Supreme Court had violated their First and Fourteenth Amendment rights to gather, publish and receive factual information concerning the attorneys involved.

Despite the intervening United States Supreme Court decision in Bates v. State Bar Arizona," holding the enforcement of a ban on attorney advertising would violate the First and Fourteenth Amendment, the Virginia Supreme Court declined to change its position . The District Court enjoined the Virginia Supreme Court from enforcing the Code. Con­sumers Union also moved for costs, including an award of attorney's fees pursuant to the Civil Rights A ttor­ney's Fees A wards Act of 1976, 42 U.S.C. § 1988 (1979 Supp.). The defendants objected to any fee award on various grounds, including judi­cial immunity. The District Court held it was proper to award fees against the Virginia Court in their of­ficial capacities. " It would hardly be unjust to order the Supreme Court of Virginia to pay plaintiff's reasonable attorney's fees in light of its continued failure and apparent refusal to amend the Code to conform with constitu­tional requirements.'" 2

The Virginia Supreme Court and its Chief Justice appealed to the United States Supreme Court, pre­senting their judicial immunity as a defense to the injunction and award of attorney fees against them. In Virginia Supreme Court v. Con­sumers Union of the United States, 11

Justice White delivered the opinion of the court, in which the injunction was upheld , but the award of attorney's fees was stricken and the case vacated and remanded. The Court distin­guished Stump v. Sparkman, supra, holding the judges did not perform "judicial acts" so as to make judicial immunity available, but as their acts were legislative in nature, they were

nonetheless immune. Thus, the award of attorney's fees was ruled im­proper. This decision further nar­rowed the bounds of what constitutes a "judicial act."

"We conclude that no special circumstances have been shown that would render unjust an award of f ees against the Supreme Court of Virginia. "

The foregoing, however, did not end the controversy over the award of fees against the judges. It should be noted that the United States Supreme Court had jurisdiction in this case be­cause of the issue involving Virginia 's Code of Professional Responsibili ty; thus, they also had jurisdiction to consider the subsidiary issue of attor­ney's fees pursuant to 28 U .S.C . § 1253 (1976). This is significant be­cause on remand the District Court reinstated the award of attorney's fees stating " we conclude that no special circumstances have been shown that would render unjust an award of fees against the Supreme

Court of Virginia . .. we will order the Supreme Court .. . in their offi-cial capacities, to pay to Consumers the reasonable attorney's fees for the services of its counsel in this action. " ••

This time, when appeal was taken by the Virginia Court on the issue of attorney's fees alone, the United States Supreme Court dismissed the appeal for lack of appellate juris­diction under 28 U.S.C. § 1253 (1976). Therefore, we now have the highest court of a state not only liable for their own defense costs but liable for the plainti ff' s astronomical fees as well.

In conclusion it would be unre­alistic to assert that the doctrine of judicial immunity is a dead letter. However, there appears to be a recog­nizable trend, based on the increasing number of judges being sued and the aforementioned cases, that a limiting a nd narrowing trend is developing in the doctrine today. The foundation of judicial immunity, though rich in history and tradition, shows its first serious cracks and like many vestiges of the past, it may someday give way to the increasing demands of plain­tiffs and changing public policy.

FOOTNOTES

' Wilkes v. Dinsman, 48 U.S . 89 ( 1849); Randall v. Brigham, 74 u.s. 523 (1869).

2 80 u.s. 335, 337 (1872). ) 345 u.s. 349 (1978).

Sparkman v. McFarlin, 552 F .2d 172 (7th Cir. 1977), Rev'd. sum nom. Stump v. Sparkman, 435 u.s. 349 (1978).

5 Id. at 174. 6 Ind . Code § 33-4-4-3 (1975),

quoted in Stump v. Sparkman, 435 U.S. 349, 357 (1978).

7 /d. at 362. 8 !d. at 357 (emphasis in original). 9 !d. at 368-69.

'0 470 F. Supp. 1055 (E . D. Va . 1979).

II 433 U.S . 350 (1977) . 12 470 F. Supp. 1055, 1059- 1061

(E. D. Va. 1979). ll 446 u.s. 719 (1980) . •• 505 F . Supp. 824 (E .D. Va. 198 1).

----.JURJS

AURORA SALES ASSOCIATES Sales and Marketing Consultants

413 PENN AVENUE TURTLE CREEK, PA. 15145

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5

6

BANK DEREGULATION: Garn-St Germain Depository

Institutions Act of 1982

I. INTRODUCTION

A radical change is occurring .in t~e bankin~ law of ~he United States. ' The bankmg mdustry 1s applymg

pressure for more and more deregulation to keep up with a rapidly changing market place. 2 Since 1978, 3 federal legis­lation has renected the banking industry 's pressure for deregulation within the banking industry and between banks and nonbank financial institutions . • The deregula­tion process accelerated in late 1982 when the Senate5 and the House of Representatives6 passed The Conference Report on The Garn-St Germain Depository Institutions Act of 1982 (H. R . 6267).'

Garn-St Germain engulfs eight different titles aimed at the deregulation of a variety of different activities . 1 The Committee on Banking, Housing, and Urban Affairs,' after numerous legislative hearings on conditions within the financial system, '0 reported favorably on Senate Bill No. 2879 (Garn-St Germain) '' and the bill was passed by the full Senate on September 30, 1982. ' 2

This article will examine the eight titles of Garn-St Ger­main and the effects these changes are designed to have on the banking and financial industry.

II. GARN·ST GERMAIN DEPOSITORY INSTITUTIONS ACT OF 198213

TITLE I - DEPOSIT INSURANCE FLEXIBILITY

Part A - Federal Deposit Insurance Corporation Amendments" grant greater flexibility to federal depository institutions insurance agencies, the Federal Deposit Insurance Corporation (FDIC) and the Federal Savings & Loan Insurance Corporation (FSLIC), to aid financially troubled institutions. Gam-St Germain granted nexibility by expanding the forms of financial assistance provided by the insurance agencies and generally broaden­ing the circumstances upon which financial assistance could be granted.

Pa rt B - Federal Home Loan Bank Board Amend­ments ' 5 and Part C- Credit Unions' 6 to Title I grant pro­cedures for acquisitions or merger of failed or failing insti­tutions to the insurance agencies and the National Credit Union Association (NCUA). Part C also broadens the Federal Home Loan Bank Board's authority as conserva­tor with respect to certain of the insurance agencies.

Part D - Sunset Provisions " provide a sunset provision of three years for the emergency authorities of the regula­tory agencies.

TITLE II- NET WORTH CERTIFICATES,.

This title establishes an income capital assistance pro­gram for depository institutions that have suffered losses as a result of mortgage lending activities. The program is designed to assist the broad range of institutions having a

BY KIMBERLY J. GALLAGHER

net worth of 3 percent of assets or less . To qualify for the program, the institutions must have a net worth of I /2 per­cent of their assets or greater after issuing the net worth certificates.

Institutions applying for the net worth program must comply with all ru les and regulations established by the federal insuring agency. However, the agencies are given some discretion to take into account particular circum­stances and conditions of an institution .

As long as a stock institution has net worth certificates outstanding, payment of dividends is prohibited . Further­more, in the event of a liquidation , the net worth certifi­cates would receive treatment similar to preferred stock .

TITLE Ill - THRIFT INSTITUTIONS RESTRUCTURING ••

Title Ill expands the investment powers for Federal Thrift institutions (i.e. , savings & loans and savings banks). The increased investment powers allow these insti­tutions to expand on the services they provide to their customers. This section of Garn-St Germain is designed to bolster the thrift industry so that it may continue to be our country's primary home lender.

Title Il l provides for more liberal chartering provisions, 20

the authority to accept demand deposits for certain customers, 2 ' the ability to issue stock, 22 enhanced real estate investment capability23

, and the authority to invest in certain types of government securities.,.

THE NEW MONEY MARKET DEPOSIT ACCOUNT

0 ne of the Title Ill changes of Garn-St Germain involves an amendment of Section 204 of the Deposi­

tory Institutions Deregulation Act of 1980. H The amend­ment requires that the Dl DC26 establish a new deposit ac­count "directly equivalent to and competitive with money market mutual funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940. " 2 7 The DIDC established this new account on November 15, 1982,2' and deposit institutions began offering the account on December 14, 1982. 29

The new money market account allows deposit institu­tions total discretion over the interest rate to be paid by these accounts.30 These new instruments require an average monthly balance of $2,500 minimum deposit and are available to all types of bank customers. 3 ' The new accounts also have restrictions on the type of monthly transfers so as to exempt the accounts from Federal

Reserve Board ("FRB") requirements. ll Additionally, one of the characteristics of this account, which differentiates it from a traditional money market mutual fund, is the fact that it is insured by the proper federal insurance agency (FSLIC or FDIC). n Between December 14, 1982 and De­cember 31, 1982 these new accounts grew to 54.2 billion dollars . 14

On December 6, 1982 the DIDC also created a new NOW account which features unlimited monthly transac­tions. This account, however, is available only to cus­tomers already eligible for NOW accounts. B These new NOW accounts are substantially similar to the money market instruments created by Garn-St Germain. 16

Title Ill of Garn-St Germain was enacted to increase the investment powers of Federal Thrift institutions. n The in­crease in investment authority is designed to improve the thrifts range of customer services and to improve. their ability to generate earnings for future growth capital. Jl

However, it is important to note that the b~sic policy underlying Garn-Sl Germain is the revitalizauon of the housing industry by strengthening the financial stability of home mortgage institutions. 19 The creation of the new money market deposit account was expressly established to be competitive with money market mutual funds. •o Cer­tainly these funds are competitive with money market funds•• and have strengthened the federal thrift institutions. •z

Title Ill also provides for a general federal preemption of state due-on sale clauses in real estate mortgages. • J

TITLE IV- PROVISIONS RELATING TO NATIONAL AND MEMBER BANKS ..

This Title increases the lending limits of a national bank to an individual borrower from 10 percent to 15 percent of the bank's capital for unsecured loans. An additional 10 percent is permitted if the loan is secured by marketable collateral.

Although loans to bank executive officers have been limited in the past, Title IV eliminates these limitations in regard to mortgage and educational loans. The $10,~ "other loan" limitation will be replaced by an appropnate limit set by the bank supervisory agencies.

TITLE V - AMENDMENTS TO THE FEDERAL CREDIT UNION ACT ...

Title V provides for greater operating flexibility for federal credit unions. Furthermore, this Title facilitates the establishment and management of federal credit unions.

TITLE VI - PROPERTY 1 CASUALTY 1 LIFE INSURANCE ACTIVITIES OF

BANK HOLDING COMPANIES••

This Title prohibits bank holding companies and their subsidiaries from providing insurance, including property and casualty products, except for the six speciFic exceptions enunciated in Section 601 of Garn-St Germatn. This section, which amends 12 U.S.C. §1843 (c) (8) (1976), establishes that the sale of insurance does not meet the "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 holding companies.

TITLE V II - MISCELLANEOUS ..

This Title begins with an amendment to the Truth in Lending Act. The amendment exempts from the Truth in Lending Act and from state disclosure requirements any loans made, issued or guaranteed under any program established by Title IV of the Higher Education Act of 1965.

Title VII also permits industrial banks to qualify for FDIC insurance and permits financial institutions to offer NOW accounts and share draft accounts to state and local governments. This Title also permits banks to form a bank service corporation in which they can invest up to lOOJo of their capital.

Additionally, Title VII authorizes FNMA to issue pre­ferred s tock and make such stock transferable. This Title also directs the FDIC, the FSLIC, and the NCUA to con­duct a feasibility study of optional insurance of large deposits.

TITLE VIII - ALTERNATIVE MORTGAGE TRANSACTIONs••

This Title permits non-federally chartered housing creditors to offer alternative mortgage in conformity with the applicable Federal regulations.

Ill. CONCLUSIONS

Garn-St Germain is Congress ' latest major piece of legislation aimed at deregulating the banking industry. Undoubtedly more deregulation for banks and nonbank financial institutions will be enacted in this decade due to mounting pressure. According to Joseph Jude Norton:9

the market place pressures are coming from: (I) investment banks such as Merrill Lynch, insurance companies such as Prudential, and retail creditors such as Sears & Americ~n Express; (2) thrift institutions for increasing portfolio diversification; and (3) commercial bank reactions to inter­and intraindustry developments .

Through deregulation, the fine line between banks and nonbank financial institutions is blurring. Investment powers are being extended for banks and new depository powers are being broadened for thrift institutions.

Currently a new legal framework is being proposed through legislation entitled The Financial Institutions Deregulation Act of 1983. jo This legislation proposes even further deregulation of the financial industry due to continuing market pressures.

-----------.JUIUS

"Now is the time to rewrite the laws governing the financial services industry. The marketplace is mov­ing ahead rapidly in the creation of new financial ser­vices. Unfortunately, banks are being forced to design needlessly complex financial services to fit legal loopholes discovered by lawyers, rather than simply responding to market dernands. Now is the time to enact legislation that will help banks to com­pete and their customers to benefit. " '

C. T. Conover, in AMERICAN BANKER, October 14, 1983, at 10, col. 2.

7

8

FOOTNOTES 1 Norton, "The 1982 Banking Act and the Deregulation

Scheme, " 38 BUS. LAW. 1627 (1983). 2 !d. 3 !d. a t 1628. The Financial Insti tutions Regulatory and

Interest Con trol Act of 1978 ("FfRA ") began the cur­rent trend of Deregulation by extending investment and loan powers of Federal Savings and Loan Institutions. See Pub. L. No. 95-630,92 Stat. 3641 (1978) (codified in scattered sections of 12 U.S.C.).

!d. • !d. a t 1627-28. The Depository Institutio ns Deregula­

tion and Monetary Control Act of 1980 accelerated deregulation of thrift institutions and commercial banks. See Pub. L. No. 96-221, 94 Stat. 132 (1980) (codified in scattered section of 12 U.S.C.) See Weaver & O'Malley, "The Depository Institutions Deregulation and Monetary Control Act of 1980: An Overview," 98 Banking L.J. 100 (1981).

!d. at 1628. See also 66 A.B.A. Journal 553 (1980), See generally, Fairbanks " The Depository Institutions Deregulation & Monetary Control Act: a broad over­view," 5 Mich. Finance & Bus. L.D. 50-58 (1981).

s The Senate passed the Conference Report on The Garn­St Germain Depository Institutions Act of 1982 on September 30, 1982.

6 The House of Representatives passed the Conference Report on The Garns-St Germain Depository Inst itu­tions Act of 1982 o n October I, 1982.

7 Pub. L. No. 97-320 (hereinafter Garn-St Germain) (codified in scattered section of 12 U.S.C.).

1 The House Bill was passed in lieu of the Senate Bill after amending its language to contain much of the text of the Senate Bill (S. 2879) . See Senate Conference Report No. 97-641 [to accompany H.R. 6267], September 30, 1982 and Senate Report No. 97-536 [to accompany S. 2879], (Banking, Housing, and Urban Affairs Committee), September 3, 1982.

9 The Senate Committee on Banking, Housing, and Ur­ban Affairs held hearings over a period of eighteen months prior to enactment of Garn-St Germain. 1982 U.S. CODE CONG. & AD. NEWS 3055-56.

10 /d. at 3055. 11 /d. at 3054-55. Garn-St Germain was drafted to provide

nexibility to the Federal Deposit Insurance Corpora­tion, the Federal Savings & Loan Insurance Corpora­tion, and the Federal supervisory agencies to deal with financially distressed depository institutions, to enhance the competitiveness of depository institutions, to ex­pand the range of services provided by such institutions, to protect depositors and creditors of such institu­tions, ...

!d. 12 !d. See supra notes 5 & 6 and accompanying text. 13 See Garn-St Germain §§ 111-11 8. ,. See Garn-St Germain §§ 121-128. " See Garn-St Germain §§ 131-132. 16 See Garn-St Germain §§ 141 . 17 See Garn-St Germain §§202-206. 11 See Garn-St Germain §§301-355. 19 Garn-St Germain §3 13 . 20 Garn-St Germain §3 12. 21 /d. 22 Garn-St Germai n §322.

23 Garn-St Germain §324. 2 4 Garn-St Germain Depository Institutions Act of 1982.

Money Market Deposit Account Section 327. Section 204 of the Depository Institution Deregulation Act of 1980 (12 U.S.C. 3503) is amended by adding at the end thereof the following:

" (c)(l) The Committee shall issue a regulation authorizi ng a new deposit account, effective not later than 60 days after the date of enactment of this sub­section. Such account shall be directly equivalent to and competitive with money market mutual funds registered with the Securities and Exchange Com mis­sion under the Investment Company Act of 1940.

"(2) No limitation on the maximum rate or rates of interest payable on deposit accounts sha ll apply to the account authorized by this subsection.

"(3) For purposes of section 19 (b) of the Federal Reserve Act, accounts established pursuant to this subsection which are not ' transaction accounts' as defined by the reserve requirement regulations of the Board of Governors of the Federa l Reserve System as those regulations existed on August I , 1982, shall not be subject to transaction account reserves, even though no minimum maturity is required , and even though up to three preauthorized or automatic trans­fers to third parties are permitted monthly."

The Depository Institutions Deregulation Act of 1980 is codified in 12 U.S.C. 3503 (1976).

25 DIDC is an acronym for the Depository Institutions Deregulation Committee.

26 Garn-St Germain, Section 327 (c) (1). 27 Norton, supra note I at 1623 . See 47 Fed . Reg. 53,710

(November 29, 1982). 21 1983 MUTUAL FUND FACT BOOK, p. 5. 29 !d. at 7. 30 Norton, supra note I at 1633. 31 /d. See generally 39 Wash. Fin. Rep. No. 20 at 919

(November 22, 1982). l2 Norton, supra note I at 1633. ll 1983 MUTUAL FUND FACT BOOK, p. 7. 34 Norton, supra note I at 1634, See 47 Fed. Reg. 56,320

(December J 6, 1982). u Norton, supra note I at 1634. 36 Senate Conference Report No. 97-641 , p. 87, 1982 U.S.

CODE CONG. & AD. NEWS. 37 Senate Conference Report No.97-641 p. 87, 1982 U.S.

CODE CONG. & AD. NEWS 31 Senate Conference Report No . 97-641 p. 1 [To accom­

pany H.R. 6267] 1982 U.S. CODE CONG. & AD. NEWS.

39 See infra note 26 and accompanying text. The effect these new bank money market accoun ts have had on money market mutua l funds will be discussed infra.

•• See inf ra notes 24-26 and accompanying text. 4 1 See infra notes 24-26 and accompanying text. •

2 Garn-St Germain Part C §341. •U fd. .. Garn-St Germain §§401-433. 45 Garn-St Germain §§50 1-533. ., Garn-St Germai n §601. 4 7 Garn-St Germain §§70 1-7 12. •• Garn-St Germain §§80 1-807. 4 9 See supra note I and accompanying text. so C. T. Conover as quoted by American Banker, October

14, 1983 , p. 10.

CAVEAT: LET THE ATTORNEY BEWARE

The legal malpractice action is by no means peculiar to the modern age. An often cited starting point for the

suit is the 1767 case of Pitt v. Yalden. ' Although the relative frequency of suits against atto rneys for profes­sional negligence from the turn of the century until the 1960's was very low, the increase in litigation since that time has been nothing less than staggering and P ennsyl­vania's attorneys have not escaped unscathed. For exam­ple, one commentator noted that during the I 970's there were almost as many reported legal malpractice decisions as there were reported decisions in the previous history of American jurisprudence. 2 Of course, it would be most dif­ficult to ascertain the actual number of claims brought since most have resulted in settlement.

One possible explanation for the increase in this litiga­tion is that attorneys had been very reluctant to institute suit against fellow practitioners before the days o f uni­versal malpractice insurance. With this barrier now re­moved, attorneys no longer need worry about shattering the career and economic security of a compatriot. 1 Other factors which have been suggested as contributors to this escalation are the growing complexity of legal practices, the delegation of more and more work to younger associ­ates and/ or legal assistants, and improved education and the consumer movement, resulting in a more sophisticated population which is more demanding of competent legal services. Further, the a pplication by the judiciary of the discovery rule regarding statutes of limitations defenses, allowing more cases to reach j u ries, plays an important part.

Information compiled by the National Data Center for Lawyers Professional Liability, released by the American Bar Association Standing Committee on Lawyer's Pro fes­sional Liability, indicates that during the period of January I , 1981 through June 30, 1982, participating malpractice insurers reported 7021 claims. (Vol. 13 1, P.L.J. No.6, p. II ).• Although certain inherent flaws exist in this data, from a statistical sense, it is very useful as an indication of trends in legal malpractice cases. Traditional­ly, as shown in the survey, real esta te has been the most af­fected area of law, accounting for slightly over twenty-five (250Jo) percent o f all claims. Suits against plain ti ff's a t­torneys in personal injury actions came in second at about twenty-three (23%) percent. When commercial law, fa mily law, and estates and trusts are combined in consideration with rea l estate a nd personal injury (plaintiff's attorney) claims a full eighty (80%) percent of the total claims are identified. In cont rast, claims against defense a ttorneys representing personal injury actions comprised less than three (3%) percent of the total claims. With regard to the activities fo r which negligence was claimed, twenty-fi ve (25 OJo) percent of the actions were related to commence­ment of the action, twenty (20%) percent to preparation and transmittal of documents, ten (10 %) percent to con­sultation and advice, and eight (8%) percent were based on sett lement a nd negotiati on.

BY

DONALD M. SATINA

Due to the broad nature of this topic, discussion will be restricted to the elements of a civil legal malpractice case in P ennsylvania and the proof problems therein, with special attention paid to the applicable statutes of limitations.

A n action in legal malpractice may be brought in assumpsit based on an express contract between the

attorney and client o r on an implied contract to use reason­able care and diligence. It may be brought in trespass for negligence. j

Whether the action is brought in assumpsit or trespass, the three (3) elements which the client must prove in a legal malpractice case are: 6

I) An attorney-client relationship creating a duty toward the client;

2) A breach of this duty through the failure of the a t­torney to exercise o rdinary skill a nd knowledge;

3) That such negligence or breach of contract was the proximate cause of damage to the client; and

In order for a client to recover in a legal malpractice action, it is generally essential that a n attorney-client rela­tionship had existed between the parties, thus creating a duty on the part of the attorney LOward his client. ' This duty is generally premised o n a contract of employment of an atlorney. The relationship of attorney and client may be implied from the conduct of the parties, but such conduct must evidence an offer or request by the client for legal ser­vices and an acceptance of the offer by the attorney as Pennsylvania Courts stress the consensual nature of the relationship. ' Also, a duty may be based on a promise by an attorney to achieve a specific resul t, i.e., an express oral contract.

An attorney is held to a standard of care measured by the skill and know ledge generally possessed and employed by practitio ners of the profession. 9 In 1905, the Pennsyl­vania Superior Court held that a n atlorney is not liable to his client for a failure to succeed , resulting in loss to the client, unless this failure is due to the m ismanagement of the business entrusted to him through bad faith, inat­tention, o r want of professional ski ll. 10 An attorney must at least, be familiar with the well-sett led principles of law and rules of practice which are of frequent application in the ordinary business of the profession; must observe the utmost good faith toward his client; and must give such at­tention to his duties, and to the interests of his client, as ordinary prudence demands, or members of the profession usually bestow." T his standard is still applicable but has been somewhat upgraded by the proposition that an at­torney, like a judge, is required to be prepared to deal wi th all foreseeable legal issues during a tria l, not only the well­settled principles. ' 2 H owever, the rule remains that

9

negligence of an attorney cannot be founded upon an in­formed judgment, even if subsequently proven to be erroneous. u This last principle has been applied in cases where an attorney has consciously let a statute of limita­tions run because he determined that the case had insu ffi­cient merits. ••

An attorney is presumed to have discharged the duties of his representation until the opposite has been made to appear. " Thus, a bad result does not create a presumption that an attorney has been guilty of a want of care. The determination of legal malpractice, like the determination of malpractice in other professions, requires an evaluation ~~ ~ro~t~ \mYa\ ~\\\ -and )\ll\<&m-em, 'a-s \~e\\ -a-s 'a '5tand'atd oY care which is related to common professional practice. 16

Toward this end, Pennsylvania Courts have required ex­pert testimony to establish the specific standard of care and to assist the factfinder, be it a judge or jury, in the determination of the attorney's conformity to the relevant standard, unless the matter under investigation is so sim­ple, and the lack of skill so obvious, as to be within the range of ordinary experience and comprehension of even non-professional persons.' '

Once the client has established that a duty existed and was breached by his attorney, he must then show that the failure of his attorney to exercise ordinary skill and knowledge was the proximate cause of his damages. 11 This last step is two-fold since the client must show not only that the attorney's breach caused his troubles but also that he has suffered actual damages.

Under the definition of proximate cause generally ap­plied in Pennsylvania, a client would have to show that his attorney's action constituted a substantial factor in failing to obtain the desired result. For malpractice claims which allege that some act or omission of Plaintiff's former at­torney caused Plaintiff's claim to be lost, the Pennsylvania Superior Court has held that the Plaintiff must first prove that his original cause of action would have been successful but for the attorney's negligence. ' 9 This aspect of the legal malpractice action, which leads to a "case within a case," has received very little appellate level attention in Penn­sylvania to date.

A more refined approach has been developed in the parallel action of medical malpractice in which a practi­tioner is liable if his actions were a substantial factor in bringing about the harm. This, along with the fact that some other cause concurs with the negligence of the De­fendant in producing an injury, does not relieve the De­fendant from liability unless he can show that such other cause would have produced the injury independent of his negligence. 10 Since the Courts have traditionally borrowed from the medical malpractice action in formulating rules for legal malpractice, this definition of proximate cause will more than likely be adopted for legal malpractice. The result would be that a Plaintiff would have to prove that his attorney's acts or omissions were a substantial factor in bringing about the failure of the underlying action. In other words, the attorney's negligent acts or omissions increased the possibility of the action's failure. The attorney would then have the burden of proving that some other concurring cause would have resulted in the failure independent of his negligence.

Finally, whether he claims in assumpsit or trespass, the client bears the burden of proving that he suffered actual loss or damages related to the negligence of the attorney. 1

'

Nominal damages are not available in legal malpractice

10

actions absent special circumstances. 11 The measure of damages in litigation related cases is generally the amount that the client could have recovered or avoided had the initial action been successfuJ.ll If no damage award would have been forthcoming, the client was not actually harmed by his attorney's shortcomings. 14 Other jurisdictions have held that a Defendant attorney can avoid liability if he proves that the judgment which would have been recovered in the original action was uncollectible against the original Defendant due to insolvency or any other reason.u Penn­sylvania appellate courts have not considered this aspect of the case.16

1\. u ni que problem arises i n cases in which the fact finder, through expert testimony, ascertains that the case would have been settled prior to trial. At least one Pennsylvania Court has awarded the settlment. value of the case rather than the expected jury verdict. 1

' It should be noted that the client's damage award need not be reduced by any con­tingent fee a Defendant might have earned had he respon­sibly and successfully carried out his obligations to the client. 11 The Courts do not view this as a windfall to the client since the fee saved by the client is cancelled out by the one which he has had to pay to pursue the action against the offending attorney .19

Although Pennsylvania Courts permit an attorney to assert the defense of the statute of limitations in legal malpractice actions, the correct limitations period must first be determined. Under present Pennsylvania law, an individual who has an attorney-client relationship may sue his attorney for malpractice under either a trespass or assumpsit theory. Jo Trespass actions must be brought within two (2) yearsl' while the period for assumpsit ac­tions is four (4) years, for oral contracts or contracts im­plied in law12 and six (6) years for written contracts. u

It has been argued that the two (2) year statute of limita­tions should be applicable to all legal malpractice actions since a Plaintiff should not be permitted to merely restate his cause of action and extend the limitations period. This line of reasoning has won favor in medical malpractice cases. However, as recently as 1970, Pennsylvania Courts have applied a contract statute of limitations to a legal malpractice action involving the breach of an express con­tract. J• The Pennsylvania Supreme Court in an opinion decided in April of 1983 has further muddied the waters of this question by allowing a third party beneficiary action in assumpsit by a named beneficiary against the attorney who drafted the will. H The Court held the measure of damages to be the named beneficiary's expectancy, even though prior legal malpractice cases, whether sounding in trespass or assumpsit, had applied a trespass standard of damages. l6 Although the Court was silent on the limitation period, application of the four (4) year assumpsit period would be the more sensible choice. In a decision filed in May of 1983, the Superior Court recognized that a two (2), four (4), or six (6) year statute of limitations could be ap­plied to a legal malpractice action depending on whether or not a contract of employment existed in some form. J7

Therefore, until the Supreme Court holds otherwise, a limitations period of up to six (6) years will continue to govern.

There has been a question as to whether or not Pennsyl­vania Courts will apply the discovery rule to legal mal­practice actions. Traditionally, the statute of limitations for professional malpractice actions begins to run upon breach of the dut . H In 1959, the Penns lvania Su reme

Court fi rst applied the discovery rule to a medical mal­practice case in Ayers v. Morgan. J

9 This rule, which provides that the statute runs from the time of actual discovery of the injury or the time when discovery was reasonably possible, rather than from the time the negligence occurred, was fashioned so that recovery is not precluded for an injury that not even a diligent party may reasonably be expected to discover.'0 This rule has been applied to legal malpractice cases as early as 1970." In 1980, the Pennsylvania Superior Court stated that the discovery rule " is a judicially created rule generally applicable to all statutes of limitation and to all cases where the injury or its cause is not immediately evident. '"2

It is readily apparent that the use of the discovery rule in conjunction with longer limitation periods will result in more cases being brought to bar. This must be taken as an indication by the Court of Pennsylvania that the negligent attorney will be afforded no protections simi larly denied to other negligent professionals.

In summary, liability of an attorney is premised on an attorney-client relationship in which the attorney has breached his duty by failing to exercise the skill a nd knowledge generally possessed and employed by practi­tioners of the profession, as measured by expert testimony. The breach of duty must have been the proximate cause of

FOOTNOTES 1 Pitt v. Yalden, 4 Burr. 2060, 98 Eng. Rep. 74 (K. B.

1776). 1 Mallen & Levit, A Manual on Legal Malpractice,

Federal Publications, Inc. (1976, 1981). J Kind regan, Malpractice and the Lawyer, National Prac­

tice Institute, Inc. (1981). • Malpractice Claims' Area Identified, 131 P .L.J. No.6,

p. II (1983). 1 1 Standard Pennsylvania Practice 2d §4.66 (1981); Duke

& Co. v. Anderson, 275 Pa. Super. 65, 418 A.2d 613 (1980); Guy v. Liederbach, __ Pa. __ , 459 A.2d 744 (1983).

6 Duke & Co. v. Anderson, 418 A.2d at 616; Schenkel v. Monheit, 266 Pa. Super 396, 405 A.2d 493 (1979) .

' Connelly v. Wolf, Block, Schorr and So/is-Cohen, 463 F. Supp. 914 (E.D. Pa. 1978); Belden, Belden & Lappas, Professional Liability of Lawyers in Pennsyl­vania, 10 DUQUESNE L. REV . 317, 333-340 ( 1972).

• Connelly, 463 F. Supp. at 919. • Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474 (3rd

Cir. 1979). 10 Enterline v. Miller, 27 Pa. Super. 463, ___ A. __ _

(1905). 11 Enterline, 27 Pa. Super. at 467. 11 Smith v. Danyo, 441 F. Supp. 171 , aff'd, 585 F.2d 83

(I 977). I J Mazer v. Security Insurance Group, 368 F. Supp. 418

(E.D. Pa. 1973). " McGrory v. Obermayer, Rebmann, et at., 14 D. & C 3d

335 ( 1978). 11 Mazer, 368 F. Supp. at 422. 16 Lentino, 611 F. 2d at 480. " Lentino, 611 F. 2d at 481; Meiselman, The Expert Wit­

ness: A Vital Element of Legal Malpractice Suits, TRIAL, August, 198 1.

11 Duke& Co., 418 A.2d at 616; Schenkel v. Monheit, 405 A.2d at 494.

the client's injuries and the client must prove that he most likely suffered actual loss. The statute of limitations defense is available to an auorney, but it is subject to the discovery rule. The damages recoverable are based on the anticipated jury verdict, or on the settlement value where expert testimony indicates that settlement would have been imminent.

Many authors have suggested measures aimed at avoid­ing legal malpractice. The stress is clearly placed on good auorney-client communications, as well as good organiza­tion and documentation on the part of the auorney. Above all, the attorney should maintain professional liability in­surance and report claims and all potential claims in a timely fashion.

Even though the attorney may think he has maintained a proper standard of care with his client, the client may think otherwise. Moreover, the court may agree with the client in his suit, hence, finding the attorney liable for malpractice.

The ramifications of law suits can have as much of an ef­fect upon an individual's life as can the most deadly of medical operations. The attorney needs to be careful to do the best that he can in any case just as a doctor must. It is expected of him. If he does not live up to the given standard, let the attorney beware.

-----------.lUI US 19 Duke & Co. v. Anderson, 418 A.2d at 616; See also,

Williams v. Bashman, eta/., 457 F. Supp. 322 (E. D. Pa. 1978).

20 Hamil v. Bashline, ___ Pa. Super. ___ , 455 A.2d 1204 (1982).

11 Duke & Co. v. Anderson, 418 A.2d at 617; See also, Guy v. Liederbach, 459 A.2d at 744; Schenkel v. Monheit, 405 A.2d at 494.

zz Duke & Co. v. Anderson, 418 A.2d at 617. 2

) Duke & Co. v. Anderson, 418 A.2d at 616; Williams v. Bashman, 457 F. Supp. at 326.

2' Duke & Co. v. Anderson, 418 A.2d at 618; Schenkel v.

Monheit, 405 A.2d at 495. zs Figg, McC ullough and Underwood, The Law of Legal

Malpractice, 128 P.L.J. No.3 (1980). 26 But see, Duncan v. Lord, 409 F Supp. 687 (E.D. Pa.

1976), where the Court indicated proof of collectability may be part of the Plaintiff's case.

21 Duncan v. Lord, 409 F. Supp. at 693; See also, Williams v. Bashman, 457 F. Supp. at 328.

21 Duncan v. Lord, 409 F. Supp. at 691; Welch v. First Penna. Bank, !0 D. & C. 3d 368 (1979).

29 Duncan v. Lord, 409 F. Supp. at 692. Jo Guy v. Liederbach, 459 A.2d at 748; I Standard Penn­

sylvania Practice 2d §4:66 (1981 ); Duke & Co. v. Ander­son, 418 A.2d 616.

J I 42 p A. C.S.A. §5524 (7) ( 1982). H 42 PA. C.S.A. §5525 (3) and (4) (1976). JJ 42 PA. C.S .A. §5527 (2). J• Skyline Builders, Inc. v. Kellar, 50 D. & C. 2d 19 (1970). Jl Guy v. Liederbach, _ _ Pa. __ , 459 A.2d 744

(1983). J

6 Guy v. Liederbach, 459 A.2d at 752. ll Moore v. McComsey, _ __ Pa. Super. ___ , 459

A.2d 841 ( 1983).

(Continued on Page 21)

11

THE CASE FOR BLOOD TESTING JOEL M. KAUFMAN*

Recent amendments to the Penn­sylvania Vehicle Code providing

for mandatory penalties and creating a per se offense of "driving . . . while . .. the amount of alcohol by weight in the blood . . . is 0.1007o or greater" 1 have genera ted new in teres 1 in the accuracy and reliability of the evidentiary devices used for sam­pling, analyzing, and measuring blood alcohol. If guilt is to be proved beyond a reasonable doubt by the Commonwealth on the basis of a test result, then the testing procedures are the focus of challenge and scrutiny; challenges raised during the last several months suggest exploration of alternatives to breath testing to deter­mine blood alcohol concentration .

Controversy has centered recently on the use of the Smith and Wesson Breathalyzer Model 1000, the pres­ent breath testing device of choice in Western Pennsylvania. It, and all other breath testing devices, proceed on the premise that blood alcohol levels can be determined by sampling breath . In the alveoli of the lungs, where blood is oxygenated, molecules of alcohol diffuse and achieve equi­librium with air . Applying elementary physics, a ratio between alveolar air alcohol and blood alcohol is deter­mined and a blood alcohol concentra­tion deduced. l n the challenged device, once a fixed amount of air is captured, it is bubbled through an ampoule containing an alcohol sensi­tive reagent. l f alcohol is present, it reacts with and effects a color change in the reagent Gust as litmus paper changes color in acid). A photo elec­trical system measures color change and correlates change to alcohol con­centration. Other devices, such as the CMI lntoxilyzer® in use by the Penn­sylvania State Police, use no reagent, but measure alveolar air alcohol by recording absorption of infra-red energy passed through a sample. There, absorption of energy by alcohol molecules correlates to blood alcohol concentration .

Breath testing is clearly scientific evidence. Attacks on the evidentiary use of breath testing devices have

12

been varied, and have been inter­posed at every level of the foundation necessary for its admission in an ef­fort to prevent the factfinder from concluding that "the matter in ques­tion is what its proponent claims . " 2

Admission of scientific evidence depends upon an underlying principle of scientific validity. Breath testing presumes a constant ratio of 2100: I blood alcohol to breath alcohol. Al­though the ratio is questioned as only an approximation, trial court chal­lenges going to the basis of breath testing have had limited success. By statute, test results are admissible if they are " performed on devices approved by the Department of

Health . " 1 Legislative approval of a testing method elsewhere has been deemed sufficient to satisfy the threshold for admissibility; Pennsyl­vania precedent suggests a similar deference to the legi s lative judgment. • For the same reason, evi­dentiary challenges based on the ac­curacy of specific types of testing devices have been avoided. Recently, tests showing that breath testing machines can be inaccurate in the presence of electromagnetic fields generated by radio transmission have surfaced. With the Smith and Wesson 1000, the manufacturer's response has been held sufficient to establish admissibility of the test results.

Smith & Wesson became aware of the problem with radio interference common to the machines which

they manufacture. The modifica­tion by the manufacturer elimi­nated their susceptibility to radio interference and only served to in­sure the accuracy and reliability of the equipment. The machine is still a Smith & Wesson Breathalyzer 1000 and is still an approved device. Thus, it was appropriate that the trial court dispense with the necessity of formal introduc­tion of evidence on this point by taking judicial notice of the ap­proval. Moreover, judicial notice is not conclusive and the defendant was not prohibited from introduc­ing evidence to disprove the fact. The jury was free to accept or re­ject his argument. 1

Thus, by statute, device reliability is prima facie demonstrated .

The problem with breath testing lies not in its theory nor in the devices employing that theory. Breath testing accomplishes, within statistical tolerance, what it purports to ac­complish . The difficulty is rather in the potential for perception in the eyes of a factfinder of a problem in such testing. Test results are not con­clusive. They are evidence to be as­sessed, weighed, and evaluated by juries. And, as with all evidence, test credibility is for determination by the factfinder, which is free to reject even the scientifically credible. As long as the challenge exists and can rationally be presented to a jury, so too does the ability of counsel to raise a reason­able doubt as to the results veracity.

Police officers direct traffic, patrol communities, carry weapons, mediate disputes, administer first aid, listen to complaints, make arrests, stop fights, rescue lost children , and daily engage in a myriad of other tasks. They also, in drunk driving cases, conduct scien­tific experiments. When they do so, they then must come to court as ex­pert witnesses whose function, based on forty hours of training, is to provide testimony concerning the method of breath testing they em­ployed, explain the procedures they followed, and upon that training ex­press an opinion as to one's blood alcohol concentration. In so doing they bear the burden of making their test results accurate and reliable in the

eyes of the factfinder. Can police officers adequately ex­

plain breath testing principles to a jury? Can they be expected convinc­ingly to respond to complex questions of scientific theory and to its applica­tion to the internal mechanism of a device they use? And do Common­wealth objections to cross-examina­tion on the basis that the questioning is beyond the witness 's competence serve to enhance his credibility in the eyes of a factfinder?

If the Commonwealth is to prove blood alcohol concentration, why not test blood instead of breath. Forgot­ten in the present controversy con­cerning breath testing is the availa­bility of the alternative in determining blood alcohol by testing blood.

Prior to 1983, blood testing was disfavored by the General Assembly. As a general rule, it was legislatively authorized only if the suspect was "physically unable to supply enough breath to complete a chemical test. " 6

Act289,ontheotherhand,abandons the statutory preference for breath testing and places direct blood testing on an equal footing, subject to the discretion of the arresting officer. Given the increased availability of blood testing as a procedure, its use can be expanded and the questions, risks, and controversy surrounding breath testing minimized.

A. PROCEDURES FOR BLOOD TESTING

I B lood testing may, as breath test-

1

ing, be conducted pursuant to statute. All drivers in the Common­wealth are "deemed to have given consent to one or more chemical tests of ... blood ... for the purpose of determining the alcoholic content."' Consent is deemed given if and only if a police officer has "reasonable grounds to believe" that the defen­dant had been operating while under the influence. • Upon a showing of probable cause and a lawful arrest based on that probable cause, an of­ficer need only request that the defen­dant supply him with a sample of blood for chemical testing and at the same time warn him that failure to do so will result in Joss of his operating privileges. 9

Once blood is drawn, for its analy­sis lawfully to be admitted, it must be tested in a properly licensed clinical laboratory:

Chemical tests of blood ... shall

be performed by a clinical labora­tory licensed and approved by the Department of Health for this pur­pose using procedures and equip­ment prescribed by the Department of Health. For purposes of blood .. . testing, qualified person means an individual who is authorized to perform those tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as "The Clinical Laboratory Act. " ' 0

Admission of results is dependent upon the laboratory at which testing is done. Reliability of the results is guaranteed by routine inspection, quality control, and periodic assess­ment of proficiency of the laborato­ries performing blood alcohol testing. Analysis of blood for alcohol is con­sidered a " specialized analyticallabo-

ratory service" requmng special Department of Health licensure.'' Of all the laboratories in Pennsylvania, as of this writing only 127 have been deemed proficient and qualified to perform blood alcohol analyses; of those, sixteen are located in Alle­gheny County. 12 Yet to say that blood can be drawn and that it can be analyzed and that perceived problems in breath testing are thereby avoided, is to minimize the issues believed by many (as confided to the author) re­stricting use of the method. Blood must be extracted by someone. It must be handled by someone enroute to the place of testing. And someone must testify to the test results. Use of blood testing procedures permits police officers to remove themselves

from the role of expert witness; others must fill the gaps. It is here that confusion has existed and diffi­culties encountered.

Blood testing for alcohol, accord­ing to most clinical handbooks, re­quires taking about 5 mi. of oxalated blood. Typically, a nurse or techni­cian ') will, in a procedure we all know and many dread, cleanse a site with a solution not containing ethyl alcohol (to avoid contamination of the sam­ple), •• insert a syringe into a vein, and with it extract blood. The sample is transferred into a vial containing an anticoagulant and transported to the laboratory for testing. There it may be handled by several different people and may be accessible to still others.

Venipuncture is a routine enough procedure for medical personnel; nonetheless, finding "good" veins and inserting needles into them far enough to penetrate and without piercing through into other tissues is touted as an art. And care must be ex­ercised not to break off the needle in the vein thus requiring its surgical removal. It is not a procedure for amateurs. It certainly is not a proce­dure for police officers.

Hospitals, physicians and nurses are immunized from tort liability associated with properly drawing blood samples and face no liability or claim of breach of privilege in report­ing results. " But hospital and other medical personnel have expressed another reservation about drawing blood samples not addressed by stat­ute, namely, the expenditure of time. Needless to say, hospitals function best with technicians and chemists in the hospital and not in court; person­nel in the courtroom negatively can impact patient care. The expressed reservation is that involvement in blood sampling inextricably inter­twines them in a protracted evidenti­ary chain of custody. Such simply is not the case.

Chain of custody of blood samples was considered by the Superior Court in Commonwealth v. Rick, 244 Pa. Superior Ct. 33, 366 A.2d 302 (1976) . There, admission of the results of blood testing was challenged. The sample, after being properly drawn, had been taken to the hospital labora­tory by an "unknown laboratory technician" and had been placed in a laboratory refrigerator readily ac­cessible to many hospital employees. Defendant raised two claims, the first based on a gap in the chain of custody

13

due to the " unknown " technician who did not testify, and the second based on the possibility of tampering. In summarily rejecting the argument, the Superior Court concluded:

[l)t is well established that the Commonwealth need not produce every individual who came into contact with an item of evidence, nor need it eliminate all possibili­ties of tampering. The Common­wealth need only establish a 'rea­sonable inference that the identity and condition of the exhibits re­mained unimpaired until they were surrendered to the court.' Com­monwealth v. Miller, 234 Pa.

'Courts and legislatures have now accepted the blood test as ''undeniably accurate" ... '

Super. 146, 155, 339 A.2d 573, 578 (1975). See also Commonwealth v. Jenkins, 231, Pa. Super. 266, 332 A.2d 490 (1974). In this case, the Commonwealth has met that burden of proof. The Rick formulation, despite

challenge, •• has uniformly been fol­lowed in drunk driving cases. Com­pare, e.g., Commonwealth v. Benson, 280 Pa. Superior Ct. 20, 421 A .2d 383 (1980).

Who, then, must testify? If one were to suggest that the technician who drew the sample must, he would be wrong. Such a contention was raised in Commonwealth v. A rizini, 277 Pa. Superior Ct. 27, 419 A .2d 643 (1980). There, a police officer named Pierson, who investigated a traffic accident, testified as follows:

14

At approximately 2:42 a.m. [on January I], a laboratory technician washed appellant's arm with a soap and water solution , tied a band around the arm. and drew two

tubes of blood. The technician then labeled the tubes and signed a custody form showing that the tubes were given to Pierson. Pier­son ... went to the police station, and called [a clinical laboratory] to make arrangements to deliver the tubes to the laboratories . When told that no one was present at the laboratories to receive the tubes, Pierson went home and placed both tubes in his refrigerator some­time between 3:00 a nd 4:00 a.m. On January 2, Pierson called the laboratories again, and was in­formed that he could deliver the tubes the next day . On J anuary 3, he delivered the tubes to an em­ployee of [the laboratory]. To Pier­son's knowledge, no one touched or tam pered with the tubes while they were in his refrigerator (indeed he said his wife and children were 'petrified' that he was keeping human blood in the refrigerator), and no power shortages occurred.

Based on this test imony, in reliance on Rick, the Superior Court con­cluded that a foundation sufficient for admissibility had been demon­strated . Although the technician who drew the blood did not testify, the court concluded that Officer Pierson could testify about her procedure and technique based on his observa­tions, and that her testimony was superfluous.

Perhaps we appropriately can dis­pense with the requirements of pro­ducing all members in a chain of custody if one witness can observe the routine procedures followed by others. But surely this would not apply to the ultimate testing. Must not the particular hospital chemist who tests blood testify? The answer appears to be that he does not. Commonwealth v. Gilbert, 254 Pa. Superior Ct. 579, 386 A.2d 101 ( 1978), presented the si tuation of one chemist testifying to the procedures of another. The test was performed in the witness's presence and under his supervision. Testimony further was elicited showing that he checked the process and his colleague's calcula­tions. Affirming Gilbert's conviction, the Superior Court found these circumstances sufficient to show result reliability a nd concurrent admissibility.

But surely Gilbert is a unique case. One would nevt;r suggest that if one can eliminate the evidentiary need of

producing witnesses whose proce­dures are observed by one competent to testify about the technique fol­lowed, we can dispense with the need for producing any medical witnesses with direct knowledge. Or perhaps one can.

The Pennsylvania Uniform Busi­ness Records as Evidence Act, 42 Pa. C.S. §6108, permits the "record of an act, condition or event" when rele­vant, to be received as " competent evidence" upon the showing of an adequate evidentiary foundation." The Act applies to hospital reports and records. Tempered by a constitu­tional right of confrontation, " a line has been drawn between admissible hearsay in hospital records and inad­missible hearsay. Medical "fact" is admissible; medical "opinion " is not. Although the distinction between "fact" and "opinion" is clouded, blood alcohol test results have been held to be in the realm of "fact" and hence admissible by means of the re­port itself. Commonwealth v. Seville, 266 Pa . Superior Ct. 587, 405 A .2 1262 (1979).

'Venipuncture by police officers ... ''shocks the conscience'' and offends a "sense of justice. '"

In Seville, defendant was convicted of driving under the influence of alcohol. The blood alcohol concen­tration was introduced, over strenuous objection, via the hospital report. The evidence was held ad­missible. Concluding that the results of blood alcohol testing were medical facts, the Superior Court observed:

Current experience teaches the practice of drawing and testing o f blood for alcohol content is a mat­ter particularly within the ambit of basic and routine hospital proce­dure. The standardized precise

calculations used in arnvtng at a final result leave little room for error. 405 A.2d at 1265.

It concluded:

There is nothing in this record or in the pertinent authorities which would suggest the result of a blood alcohol test is a matter 'seriously in issue and the subject of conflicting opinion by qualified physicians.' [Commonwealth v.] McCloud, [457 Pa. 310, 312, 322 A.2d 653, 655 (1974)]. Rather, we are per­suaded the test is in the realm of medical fact. Courts and legisla­tures have now accepted the blood test as ' undeniably accurate' and we will not burden the Common­wealth with producing witnesses to establish a fact which experience has proven to be trustworthy. 405 A.2d at 1265-64.

l am not suggesting that all wit­nesses be excused and that blood alcohol calculations be received as evidence without scrutiny. Indeed , I assert the contrary view. Admissi­bility of test results is one considera­tion, but admissibility is but one aspect of the trial of a drunk driving case. Just as breath test readings are subject to a jury's assessment of credibility, reliability, and weight, so too are blood test figures. What I am suggesting is that a number of the concerns surrounding blood testing, from the point of view of potential wi tnesses, may be illusory, and that means for alternative sources of essentially corroborative or "minor" testimony accessible.

The following, based on procedures in use in Allegheny County , is sug­gested. Police officers, on the author­ity o f Arizini, cited above, should witness all blood sample extractions and note and record the type of solu­tion used to clean the sample site, thus avoiding any cla im of contami­nation. Samples should be taken by the arresting officer himself, without adding other people to a chain of custody, directly to the clinical labo­ra tory where testing is to be done. And, once there, the officer should hand the sample directly to the toxi­cologist who will perform the blood alcohol analysis, a routine started by and used with great success by the Allegheny County Department of Laboratories Toxicology Lab. Adher­ence to such a protocol shortens any chain of custody, reduces demands

on hospital witnesses, and serves to make the ultimate reading accurate, in that it permits a jury easily to con­clude that the sample remained unim­paired until and through the time of testing.

B. THE FUTURE OF BLOOD TESTING

T he fear exists that the argument made above may not persuade

everyone. Just as concerns about breath testing (or rather its potential for rejection by juries) prompts ex­ploration of alternatives, doubts as to full cooperation by local hospitals (perhaps totally without foundation) triggers inquiry into the possibility of avoiding the need of relying on hospi­tal technicians or other local medical personnel to draw blood samples.

When blood alcohol is measured by gas chromatography, as is done in Allegheny County, 19 approximately one microliter (.1 ml) of blood is con­sumed . I am not proposing that police officers be authorized to draw venous blood or attempt any form o f free-hand venipuncture. Moreover, none of the police officers with whom the concept informally has been dis­cussed consider it an appropriate police procedure. Indeed, to do so would be to " invite an unjustified ele­ment of personal risk of infection and pain," Schmerber v. California, 384 U.S. 757, 772, 86 S. Ct. 1826, 1836 ( 1966), and as such lacks the sense of reasonableness needed to insulate the procedure from fourth amendment censure and due process condemna­tion . See Breithaupt v. Abram, 352

U.S. 432, 77 S. Ct. 408 (1957).

But one microliter is about one and one-half drops o f blood. A technique o ther than venipuncture, experi ­mented with for blood alcohol read­ings but occasionally, exists for the collection of this small quantity of blood. A finger prick for capillary blood, such as used in rudimentary blood typing, supplies the required quantity. On a sliding scale o f reason­ableness and invasiveness, a police administered finger prick for capillary blood, based on a statutory authori­zation and coupled with adequate training, satisfies, at least for this author, a test of reasonableness. Venipuncture by police officers is conduct that " shocks the conscience" and offends a "sense of justice," Breithaupt v. Abram, 352 U.S. at 437, 77 S. C t. at 4 11. A controlled, safe, automated finger prick for capillary blood, when administered by trained officers does not offend my conscience (nor those of consulted police officers).

More than a quarter of a century ago, the Supreme Court observed that " [m]odern community living re­quires modern scientific methods of crime detection lest the public go un­protected." Breithaupt v. Abram, 352 U.S. at 439, 77 S. Ct. at 412 (ap­proving the use of blood tests for alcohol detection). Can technology respond to a felt need? If technology can respond, I can envision portable, disposable, and safe blood sampling kits. A suspect merely could, upon consent, insert his cleansed finger into a device. With a push of a button , an officer could, without risk to the suspect, extract the miniscule amount of blood needed for gas chromatography a nalysis and trans­port the sample in a sealed unit di­rectly to a central clinical labora tory, and thereby bypass and avoid impos­ing upon the good graces of local hospitals and medical personnel. A need is there; a solution seems, at least to those who repose confidence in technocrats, possible.

Perhaps the most compelling reason for advocating development o f a test­ing device of this nature is evidentiary in origin. Alcohol once consumed is absorbed over a period of time into the bloodstream and then gradually is dissipated. Over time, after consum­ing alcohol, blood alcohol concentra­tion rises, pea ks, and then falls. 20

Breath samples at a police station o r

15

blood at a hospital are taken not at the time of arrest - the critical statu­tory time in terms of proof - but some time thereafter. 2 '

Pennsylvania law specifies no set period of time after arrest when sam­pling must be conducted, 21 and ex­perts are permitted to testify as to rates of absorption a nd elimination of alcohol and from that data ex­trapolate a percentage of blood alcohol saturation at the time of driv­ing. 23 Although admi ssible and probative if accepted as reliable by the factfinder, extrapolated blood alcohol readings are viewed with skepticism and regarded with cau­tion. See Couts v. Ghion, 281 Pa. Superior Ct. 135, 42 1 A.2d 1184 (1980) (plurality opinion); Schwarz­bach 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 inci­dent 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.

.. ,0 0 '

The 00;_[/f)n DIFFERENCE

16

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If technology can respond, effective law enforcement would doubly be served.

•A.B., J.D., University of Pennsyl­vania; Assistant District Attorney, Allegheny County, Pennsylvania; Adjunct Professor of Law, Duquesne University. This commentary is based on remarks prepared for the /983 an­nual meeting of the Pennsylvania Driving Under the Influence Associa­tion, and relates to the confer­ence theme "DUI: The Forgotten Aspects."

FOOTNOTES 1 Act of December 15, 1982, P.L. ,

No. 1982-289, §9, 75 PA C.S. §3731 (a) (4).

2 See F.R.E. 901 (a). 3 75 PA. C.S. §1547 (c) (1). • See, e.g., State v. Brockway, 2

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 73 1 (1981).

5 Commonwealth v. McGinnis, 33 Cumberland L.J. 432, 435 (Pa. C.P . 1983).

6 Act of June 17, 1976, P . L. 162, No. 8 1, § I (repealed).

' 75 PA. C.S. § 1547 (a). • ld . 9 ld. §1547 (b) (2).

10 ld. § 1,547 (c) (2). For the history of clinical laboratories in Pennsylva­nia, see Mas/and v. Bachman, 473 Pa. 280, 374 A.2d 5 17 (1977).

I I 28 PA. CODE §§5.50, 5 .103. 12 See 13 Pa. Bulletin 8 12 (February

19, 1983). 11 Prior law mandated tha t blood be

extracted only by a physician, nurse, or technician, acting under a physician 's direction. Act of June 17, 1976, P.L. 162, No. 8 1, §I (repealed). Although the pres­ent statute does not specifically address the subject, by implica­tion (see 75 PA. C.S. § 1547U)) the former requi rement retains validity.

" Contamination of samples is dis­cussed in Winek, Blood A lcohol Levels: Factors Affecting Predic­tions, 1983 T RIAL 39,41 (January 1983).

IS 75 PA. c.s. § 1547 U). 16 For a contemporary a nalysis of

chain of custody in criminal cases, See Gianelli, Chain of Custody and the Handling of Real Evidence, 20 AM. CRI M . L. REV. 527 (1983).

17 The record's foundation is com­pleted "if the custodian or o ther qualified witness testifies to its identity and the mode of its prepa­ration, a nd if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of infor­mation, method and time of prepa­ration were such as to justify its admission." 42 PA. C.S. §6108.

11 U.S. CONST., amend. VI; PA. CONST., art. I, §9.

19 The Toxicology Lab currently uses a Sigma 4B gas chromatograph equipped with name ionization detector.

2° For an enlightened discussion of the blood alcohol curve and the questions involved in the timing of testing, see Fitzgera ld & Hume, The Single Chemical Test for In-

toxication: A Challenge to Ad­missibility, 66 MASS. L. REV. 23 (1981).

2 1 Indeed, to allow dissipation of residual mouth alcohol and pre­vent a false high reading, breath teating first requires at least twenty minutes of observation and wait­ing, 67 PA. CODE §77.5, during which time blood alcohol concen­tration can change. Delays en­countered at hospital emergency rooms require no explanation.

22 See Commonwealth v. Tylwalk, 258 Pa. Superior Ct. 506, 393 A.2d 473 (1978); compare Common­wealth v. Arizini, supra.

23 Commonwealth v. Arizini, supra; Commonwealth v. Reynolds, 256 Pa. Superior Ct. 259, 389 A.2d 1113 (1978); see United States v. DuBois, 645 F.2d 642 (8th Cir. 1981).

Dlorking &tubtnt JAlut.&

Jja.st ni~ until a mibnigltt brraru OOnrr morr ) ponbrrrb wrak anb wraru ®urr uolumrs of .somr lrgal torr.

<namr ~r morning blrak anb bawning .Jrom mu r~air 1 ro.sr a uawning Anb grabbrb mu books from off ~r floor.

Ul~rouglt ~r bag ~r bo.s.s wa.s bitr~ing About mu latrnr.s.s . t~at J'm .slipping OOib frirnb.s .sau ) 'ur brromr a borr.

<namr t~r rnb . ~r winb was blowing OOut.sibr ~r wra~rr wrt anb .snowing Ul~r )Jarkwau .slick. ~i.s mur~ is .surr.

Ulo .sr~ool 1 ramt. now firrrrlu .stunning liJarking barrrb. polirrman warning: iianqurt gurst.s anb noonr morr.

ltp~ill ) trubgrb. wrt. rolb. complaining UJ~r rr.stroom! ) 'U wa.s~ . grt towrl.s .sustaining tiut rmptu rolls anb no~ing morr.

Ulo da.s.s ) bripprb. still krrn for lrarning m~r .snifflrs now. a frurr burning Ul~r urnt.s blrw colb. mu ~roat wa.s sorr.

Bl~at now uou a.sk. a .stubrnt crying? &tar~ littlr ~ing.s . uou'b ~ink ~r'.s bging! Jt' .s just ~r burs anb no~ing morr.

Slir~arl Ul. Sirgrrt

17

ELECT OR APPOINT: T he recognition of judicial powers

is indispensable to the mainte­nance of our society. Judges can in­carcerate or alter one's economic status with a bang of the gavel. Can traveling different paths to the robe through election or appointment af­fect a judges performance? Judge Robert E. Dauer, Administrative Judge for the Criminal Division, Judge Henry R. Smith, Jr., and Judge Alan S. Penkower also of Alle­gheny County Criminal Division have given their views on the merits of these processes to Juris.

By now, the current issue concern­ing the " Merit Selection" of judges in Pennsylvania has reached ears far beyond the legal community. The public is always interested in issues surrounding judicial integrity. The concern most often aired in the media over appointments and elections is usually predicated with the qualifier, "we'll never take the politics out of the process anyway."

Since 1681, when the Royal Charter bestowed William Penn with the power to appoint and establish judges, there has been ongoing debate over how judges should reach the bench. The underlying argument over the appointment versus the election process should be concentrated on which constitutes the most effective use of the system, and not on whose politics are more powerful.

Inherently, politics will continue to be a part of whichever system is used. For most intents and purposes we have come to accept this idea. The contraction arises when we as a peo­ple oppose the politics we so passion­ately fight for. If we accept democ­racy as the political system which this country lives by, it should come as little surprise that politics will guide all governmental activity. Why should the appointment or election of judges be treated differently?

Edward Zemprelli in an October 20, 1983, Pittsburgh Post Gazette Editorial said, " Anyone who thinks that the selection of judges (according to a merit selection plan) will take politics out of the process is naive. As long as the process is going to be political , leave it in the hands of the electorate and allow it the opportunity

18

to choose." Perhaps the problems in­herent in the current system cannot be countered by changing the method of judicial selection. Maybe what is needed is a change of rules.

The importance of the role judges play in adjusting and preserving democracy and refining the law is un­questioned. The qualities a good judge should possess are a lso general­ly agreed upon. Judges Dauer, Smith and Penkower believe that qualities of "integrity, patience, varied experi­ences and a working knowledge of the law, " are necessary. Judge Dauer, who has been on the bench eleven years, feels that an attorney with ex­perience advocating both sides of the issues (a previous magistrate for in­stance), is the epitome of one who possesses the skills needed to begin as a good judge. But he adds, "back­grounds are so varied that its hard to say what makes a good judge until he is a judge."

It is agreed that the foundations of the judiciary are seldom in dispute. What is increasingly controversial is the methods upon which candidates are installed onto the bench . Gover­nor Thornburgh is presently support­ing a constitutional amendment to replace the current system of state

is his experience that both the elective and appointment methods have worked well. This stands confirmed by his unique path into the judges chambers. On whether he feels his role on the bench is affected by the manner in which he has been put into office, he states, "It shouldn't have any effect, because once you are on the bench, you should not be be­holden to anybody or anybody's point of view, whether it be the gover­nor who appoints you, or the political leaders who support you, or the lawyers who contribute to your cam­paign, or voters, be their support ethnic, geographic, or economic. However, everyone is human and the subconscious influences on decision­making is something that is inborn to a certain extent. Your personality, character and philosophy, those things which are a part of you, force you to approach issues based on who you are and how you operate." He further notes that "one thing going through an elective process did is humble me and keep me in touch with people.' '

This is the core of the argument for keeping the elective process: that voters get to know the persons who will be judges. However, the majority

THE JUDGES TALK TO JURIS BY CHERYL R. LEE

judicial procedures with a merit selec­tion committee which would select and nominate candidates to the governor for his final decision . The debate following thi s proposed amendment is desti ned to have tre­mendous impact on how Pennsylva­nia judges are selected.

Judge Penkower finds himself in an interesting position. In May of 1983, he had won both the Democratic and Republican nominations and there­fore ran without opposition this November. Presently, he is the only appointed judge in Allegheny County. He is a lso running for the full ten year term in the seat recently vacated by Judge Zappala's election to the Su­preme Court. As to the advantages of being put into office under one system or another, Penkower feels it

view, according to the Judicial Selec­tion Governance Study prepared by the Committee of Seventy in Phila­delphia this past September, is to adopt a commission to identify and nominate candidates. This is consis­tent with the controversial constitu­tional amendment presently being considered . The study says the ap­pointee, after havi ng served a short probationary term of office, would run in an uncontested non-partisan retention election (as judges do at the end of their ten year terms when seek­ing re-election), giving voters a chance to decide who should be given full terms on the bench. Under reten­tion, judges present to the voters only their records while in office, as the basis for evaluation.

Arguably, the majority view may

discourage problems of pressuring candidates into taking sides publicly on controversial issues and relieve the need to raise so much money usually

I needed to support an all out cam­paign. This economic aspect is what places candidates in compromising positions that could possibly affect the ability to be impartial. Some feel these factors are inherent in our cur­rent system.

The Code of Judicial Conduct §204 Pa Code Canon I and PA Constitu­tion Article V, § 17 impose severe restrictions on the judges conduct

J during the election campaign:

Judges shall not engage in the prac­tice of law; A candidate may identify himself or herself as a member of a political party and; May speak to such gatherings during the campaign, but;

A candidate shall not act as a leader or hold office in a political party or organization; Candidates should not make speeches for a political organiza­tion or publicly endorse any candidate for office; Candidates shall not engage in any activity prohibited by law; Neither can a candidate solicit or accept financial support but must

establish campaign committees for this purpose; Candidates shall not hold a posi­tion of profit in the United States government or Commonwealth or any political subdivision, except in the armed forces; Candidates shall not violate any canon or legal or judicial ethics prescribed by the Supreme Court; Candidates shall not be paid or ac­cept any fee or gratuities for any judicial duty or service connected with his office other than salary which is provided for by law.

"Anyone who thinks that the selec­tion of judges (according 10 !he meril selection plan) will take politics ou1 of !he process is naive. "

Again, all these limitations whether adhered to or not, could arguably af­fect judicial functions after the elec­tion. Another real question is whether the retention arrangement truly dis­courages these things. Judge Dauer says, "retention does take some of the pressure off, because unless there is a concerted effort to get you off the bench, you are probably going to be re-elected." Retention enables a judge, for the most part, to forego a political campaign, since the candi­date only runs on a yes/ no basis. According to Judge Dauer's recollec-

Lion, under retention there have been only three judges defeated through­out the state; none having ever been defeated on a retention basis in Alle­gheny County. Even under retention Judge Dauer is sure that if he did something to alienate, "the political bigwigs around here, they could campaign against me."

Generally, these judges feel that in the course of decision making, when a political heavyweight is involved, judges do weigh those things, but they are ultimately led to find un­biased law. Dauer says, "In these times you mu st have a pretty strong personal constitution, knowing a de­cision may affect eight million votes, and you like those eight million votes. Whereas if you are appointed, par­ticularly for life, like the federal judges are, then you can disregard any political pull." He knows, "appointment of judges will not en­tirely eliminate politics, because the 'appointors' who recommend you to the governor for appointment will sti ll be involved, [as well as) those who appoint the 'appointors'." This seems to be the consensus of opinion among these three judges, as well as most who are involved in this debate.

Temple University President Peter J. Liacouras, former dean of Temple's Law School said in another

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19

Post-Gazette article while testi fyi ng before a Senate committee consider­ing the proposed state judicial consti­tuio nal amendment, "(selectio n panels) would merely replace the poli­tics of popular election with the in­ternal politics of "elitist groups. " Ze mpre lli 's ed i torial reinforces Liacouras' argument by saying, " I expect that special interests will be making exorbitan t political contribu­tions to those who appoint the nomi­nating commission."

Again the role of politics is deeply ingrained in both the election and ap­pointment process. Accountability has to be the single most important factor of whatever process Pennsyl­vanians decide upon. In the absence of a better plan, is there a need to change the present system at all ?

According to the Judicial Selection Governance Study, retaining the elec­tive system is the minority view. The democratic principles behind elec­tions are most likely what sustains the elective idea. A most timely idea is that elections reflect society's judge­ments about candidates, and as long as that remains true, the elective forum should always be available in a democracy.

If the truth about society is re­flected in elections, then do uncon­ventiona l type or minority candidates fi nd a beller forum in either election o r appointment arrangements? Judge Dauer feels , " party politics in an elec­tive procedure may deny a qualified ca ndidate access to the bench, whereas the appointment procedure would not. In an appointment situa­tion a minority candidate would probably be appointed on the basis of his qualifications and for the reason of his minori ty status." There are after all only two women and three black j udges on Common Pleas Court out o f a total thirty-nine in Allegheny County. "Admittedly," Judge Dauer says, "there should be more black and women judges."

Judge Smith notes that, "be they a member of a racial or ethnic minori­ty, or someone who is just not popu­lar with the political party, or some, who are not comfortable with going through the political process, at least in elections [he] has a chance of becoming a judge. Under an appoint­ment system, the appointing author­ity, when it is a process of nominatio n and recommendation to the governor by some type of Board of Commis-

20

sion, may lessen the chance of mi­norities. The appointing authority would have a greater control when pre-selecting candidates than a n elec­tive process. Using the appointment process has been a concern of many minority groups, who feel they per­haps lose their opportunity to get out and compete."

Judge Penkower says that, " be­cause of polit ics the election process may enable an "unconventional" type candidate to get into office, even someone whose legal experience is extraordinarily limited." In his opi­nion, "that is unlikely to happen under an a ppointment system where there are certain standards that the selecting body employs." Judge Penkower sees the attributes of both a special merit selection appointment commission and electorate proce­dures. He says, "his experience has been the least orthodox he has seen so far."

The dark horse opm10n is direct gubernatorial appointments, which eliminates the need for any selection commission. Peter Liacouras sub­scribes to this opi nion . He says in the Post-Gazette article, "if Pennsyl­vania's system of choosing judges is to be replaced, it should be by direct guberna torial appointments."

Judge Penkower and Judge Dauer expressed their admiration for how well the federal judiciary system works. Federal judges are appointed for life. Judge Dauer felt , " if you 're going to appoint a man, appoint him for life. " Surely there is true freedom from public protests concerning judicial decisions. The argument for maintaining the election process breaks down at this point. "Of course elected judges are more conscious of public response to their decisions," Judge Smith acknowledges. "Judges have concerns for public attitude, they may actually give some credence and consideration to wha t public feel­ings may be, but may not be influ-

enced as they strive to be independent thinkers and to do what the law says must be done. Possibly appointed judges may feel less of a connection to the people" , but Judge Smith sees this possibility in elective situations also. He says, "the retention experi­ence has been so good, judges tend not to be quite as concerned with what the political party says." Per­haps this is the closest the elective system may come to complete ob­jectivity. Is it safer to completely remove the public policing power, by installing a direct gubernatorial ap­pointment system?

The answer may lie in the distinc­tion between a republic and a democ­racy. In a democracy, power vests in the citizens only through systems of representation. The original idea of William Penn's time was to elect a governor, vesting in him the powers to decide matters such as judicial ap­pointments. Perhaps our trust should be further extended to the governor, enabling him to make direct guberna­torial appointments, without so much controversy. Or perhaps, as in a re­public, the administration of judicial affairs should be open to all Pennsyl­va nians through the election process.

As elusive as the judiciary may be to those here and beyond the legal community, its lawyers, aspmng lawyers and the judges must be re­sponsible for the pursuit of change, be that pursuit obvious or obtuse. The reality is this constitutional amendment must be voted upon democratically through our elected senators. One good example of our faith in democracy is embodied in PA Constitution Art. V wh ich says, " Judicial seniority is not measured from the time judges assume office entirely, elected judges will have sen iority over appointed judges."

Yet, no matter how the issue is couched, forgetting all the pros and cons therein, one point remains per­fectly clear. Judges, be they elected or appointed, will continue to serve the people. As long as all facets of society a re responsi bly represented, and the realities a re reasonably clear, the con­stitutional amendment debate is wholesome and should continue as long as necessary.

----JURIS

~----------Book Review

WILD J USTICE By Susan Jacoby, Harper & Row, 1983. $17.95

What though the field be lost? All is not lost- the unconquerable

will, And study of revenge, immortal hate, And courage never to submit or yield: And what is else not to be overcome.

John Milton, Paradise Lost

Most of us regard acts motivated by vengeance as immoral and

the desire for revenge as uncivilized. In Wild Justice, Susan Jacoby shows otherwise. Drawing on literature, theology, psychology and sociology, she presents a fascinating study of and case for revenge as a legitimate and fundamental motivating force in the law and individuals' lives.

Revenge has always been a central theme in literature and reflects our changing attitudes. For the classical Greeks vengeance was an act of heroism commanded by the gods. In modern literature it is the expression of someone gone mad, often because the criminal justice system has set the object of his vengeance free . Retribu­tion is the abnormal desire of some­one obsessed.

CAVEAT:

WILD JUSTICE

Jacoby argues that not all acts of revenge are perverse just as not all eroticism is perverse. Normal desires for revenge exist on a continuum with abnormal desires.

Though the impulse for revenge is normal, it must be restrained and channelled appropriately. This is best accomplished through a legal system which imposes punishments com­mensurate with the damage done to the individual and society. Otherwise a victim will not accept the interposi­tion of the legal system between himself and his attacker, but will seek his personal revenge. Justice and vengeance are not opposites . A major element of justice is revenge.

Let the Attorne y Beware

A treatise on revenge as an accept­able reason for punishment must inevitably deal with capital punish­ment and Jacoby devotes an entire chapter to the subject. It is here that she is least convincing. She emphatic­ally makes her point that while revenge is an unobjectionable reason for punishment, it does not in any way follow that capital punishment is an acceptable expression of revenge. Jacoby' s argument is that capital punishment inflicts more harm on society than it does good as an expression of outrage. But one is left uncertain of the reasoning that leads to the conclusion that retribution can better be satisfied through a less drastic punishment. One expected a more compelling and persuasive argu­ment in such a thoroughly convincing book. Jacoby does expose the errone­ous promises of both sides of the issue.

Our potential for mercy and for­giveness will best be realized when we recognize revenge as a healthy ex­pression of a bas ic need. What, Jacoby asks, can we expect of victims? We are uncomfortable when victims express a desire for revenge. Survivors of the Maidanek Nazi death camp who became witnesses in the deportation hearings of Nermine Ryan, a camp officer, were each asked by her attorney if they sought revenge. All replied that they desired justice. For Jacoby and her readers , the expression of these as exclusive concepts is absurd.

-Julia Wahl

(Continued f rom Page II)

11 Wm. B. Tenny, Etc. v. Dauphin Deposit Bank, 302 Pa. Super. 342,448 A.2d 1073 (1982) .

19 Ayers v. Morgan, 397 Pa. 282, 154 A .2d 788 (1959).

"If a judge pronounce a judgment and after­ward reverse it , he sha ll pay twelvefold the da mages which were awarded, a nd they shall expel him from his seat of judgment, and he sha ll not return."

40 Anthony v. Koppers Co., Inc., 284 Pa. Super. 81, 425 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.

THE CODE OF HAMMURABI, c. 2250 B.C.

21

22

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 learn­ing: 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 gentle­men of brigqt imaginations grow wearu of fo un­promiftng 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 .

ALUM NEWS

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

Michael J. Lydon, class of 1977, is a 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 "re­searcher and writer", his concern for quality legal practice and education suggest a much deeper significance to his work.

As a law clerk for Justice Larsen, Mr. Lydon has read countless briefs. That exposure form s the basis for his suggestion that effective advocacy re­quires fighting the "urge to overkill" . He explained that, "you really do your client a disservice by beating around the bush. You have to catch the Court 's attention. To present your case the most effectively, you do have to leave out the kitchen sink once in awhile. Be brief and be con­cise in anything that is written."

Another aspect of brief writing that concerns him is vagueness in reveal­ing what the record discloses. "It is there on the record," he said. "When you go to the record, and we do, we are going to see what is on the record.

Michael J. Lydon, Esquire, DU Law '77

When a pany starts fudging about what is on the record, it is kind of like a red nag. Fudging something that is not there is damaging to your case. "

Mr. Lydon's observations and sug­gestions are not limited to the practice of law. He feels that the quality of legal education can be improved by mixing clinical programs with the more traditional approach to legal education. "I think that Duquesne could really help itself by getting more into clinical programs because it is in a perfect location. Due to the school's location and the number of alumni in the immediate area, they could really put an outstanding pro­gram together. It is a possibility that should be explored. " The value of

such a program goes beyond provid­ing a better legal education . As Mr. Lydon explained, " such a program could provide a service to the com­munity, especially now with all the cutbacks in legal aid programs. I think universities in general should be one of the bodies to try to fill the gap that is left by the lack of funding."

JURIS acknowledges Michael J. Lydon for his honorable career choice. His practical and idealistic views on legal practice and education speak well for the type of person he is and the quality of education he has received.

- 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

23

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