HARRISBURG - Lawyers and Pennsylvania court experts are raising ethical questions about the appearance of a state appellate judge at a Capitol news conference yesterday on illegal immigration.
Superior Court Justice Correale F. Stevens stood on the Rotunda steps with State Rep. Daryl D. Metcalfe (R., Butler) Hazleton Mayor Lou Barletta and others as they called for the passage of state laws to halt the "alien invasion."
Attorneys say it is very unusual for an appellate judge to show up and speak at a Capitol news conference on a political issue, especially when the topic is one so highly charged as immigration.
"He definitely crossed the line," said Robert Nix, a Philadelphia lawyer who is chairman of the statewide Hispanic Republican Coalition. "Just by being present on those steps with Barletta and Metcalfe, the leading people on the issue, sends a message that he is implicitly saying what they're saying."
Nix said he was so angered by what he saw yesterday that he intends to file a complaint with the state Judicial Conduct Board.
But Stevens, a Hazleton native and a former Luzerne County district attorney, said he was not representing the court yesterday, nor was he endorsing any specific legislative proposals.
"This was me [speaking] as an elected official," said Stevens, who is on the ballot for a second 10-year term in November. "I have the right to speak on administration-of-justice issues."
But just how far a justice may go in expressing opinions remains a matter of debate and a subject of lawsuits.
Under the Pennsylvania Code of Judicial Conduct, judges may speak and participate in various activities, including public hearings, on matters concerning the law and the administration of justice.
But it prohibits judicial candidates from making statements that "commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."
A federal-court ruling in Pennsylvania this year, in a case brought by a government-watchdog group, held that the code was unenforceable, freeing judges to talk about issues.
"The caveat is that they can't promise to decide cases in a certain way," said Tim Potts, founder of the group Democracy Rising, which filed the suit in an effort to enable judicial candidates to respond to questions from voters' groups.
Stevens said his concern about the immigration issue dates to the early 1980s when he was a House lawmaker and introduced a resolution to prohibit illegal immigrants from receiving state benefits.
He said that, before agreeing to appear in the Capitol yesterday, he checked with West Chester defense attorney Sam Stretton, who has represented many judges and lawyers in ethics cases.
Reached by phone after the news conference, Stretton said he was under the impression Stevens was testifying at a hearing, not speaking at a news conference.
"He should have the chance to express himself and enlighten people on the issues," said Stretton. "It sounds like Metcalfe was operating on sensationalism. If that is the case and [Stevens] is endorsing inflammatory comments, that's wrong."
Government-watchdog groups were unaware of what punishment, if any, had been meted out by the Pennsylvania Judicial Conduct Board in any speech-related cases. Lynn Marks, executive director of Pennsylvanians for Modern Courts, which supports merit selection of judges, said judges in general should not make statements on "contentious" public issues.
"Their official position makes their pronouncements overly weighted," she said.
Marks said such outspokenness raises bias issues in the courtroom, despite Stevens' argument that he would recuse himself should such issues present themselves in his courtroom.
"By saying he could recuse himself, he has put himself on the sidelines should any issue related to immigration come before his court," she said. "The scope of his recusal might be broader than just immigration cases. For example, if an illegal immigrant is a defendant in a criminal case, that defendant is certainly not going to perceive that she or he will get a fair shake before an impartial judge."
Metcalfe and eight other lawmakers held the news conference to release their "Invasion PA Report," which details 120 criminal incidents involving 3,100 illegal immigrants in the last four years. They said the statistics, compiled from newspaper reports and testimony, are indication that federal policy has failed and that the legislature should enact its own laws to address illegal immigration.
The ACLU of Pennsylvania called those crime statistics misleading, saying that most studies show immigrants are less likely to commit crimes than those born in the United States.
The Hazleton ordinance, believed to be the first of its kind in the country, targeted illegal immigrants by penalizing anyone who housed them or employed them. It was struck down by a federal court in July. Last week the town of Riverside, N.J., rescinded a similar ordinance that was never enforced.