Dec 18, 2012 3 min read

PITTSBURGH – A prosecutor wants a judge to reject arguments by state Supreme Court Justice Joan Orie Melvin that her prosecution on campaign corruption charges is an unconstitutional violation of the separation of powers.

Melvin is scheduled for trial next month on charges she illegally used her former Superior Court law clerks and other staff members to help her campaign for a Supreme Court seat in 2003 and again in 2009, when she finally was elected to the state’s highest court. Melvin will be tried along with her sister Janine Orie, who ran Melvin’s Superior Court staff and is accused of conspiring to use the state-paid staff of a third sister, former state Sen. Jane Orie, to campaign for Melvin.

Jane Orie fought charges she misused her Senate staff to work on her own political campaigns and fundraising but was convicted this year. She was acquitted of charges she directed her staff to campaign for Melvin on state time. The 51-year-old is serving 2 1/2 to 10 years in prison.

Melvin’s attorneys are seeking to dismiss the case against her. Earlier this month, they argued that the prosecution is “unprecedented and constitutionally flawed” because the state judiciary has rules regulating the political activity of its employees and only the judiciary can decide whether those rules have been broken.

“These flawed charges, if allowed to proceed, expose the Pennsylvania judiciary to the arbitrary police power of every prosecutor,” the Pittsburgh-area jurist’s attorneys wrote. “The independence of the judiciary will erode and yield to the executive’s self-declared authority to police and prosecute the manner and means by which judges direct their staff and exercise their judicial authority.”

But the response filed by Allegheny County Deputy District Attorney Lawrence Claus said Melvin’s argument is “built upon a faulty premise.”

“The Commonwealth is not prosecuting the defendant for pure political activity, nor is it attempting to define the parameter of political activity in which a jurist is allowed to participate,” Claus wrote.

Melvin “is being prosecuted for using state resources to promote her own political campaigns, a difference the defendant ignores,” Claus wrote.

Common Pleas Judge Lester Nauhaus has yet to rule or schedule a hearing on the issue, or several others raised by Melvin’s attorneys, which Claus addressed in his response filed Friday.

Melvin’s attorney Patrick Casey declined to comment when contacted Tuesday about Claus’ response.

Melvin’s attorneys also contend there wasn’t probable cause to hold the seven counts, including three felony counts of diversion of services, against her for trial.

They also are challenging a search warrant used to seize some records and the admissibility of some evidence and question whether the charges pertaining to the 2003 campaign, which Melvin lost, were beyond the statute of limitations. Claus argues that’s not the case because state law “provides an extension of time for any offense committed by a public officer while in office.”

Melvin remains suspended without her $195,000 annual salary while the charges are pending.

A defense attorney for Janine Orie has said he’s confident she’ll be found “not guilty of everything.”