Last updated: February 20. 2013 1:29AM - 185 Views

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PITTSBURGH — Attorneys for suspended state Supreme Court Justice Joan Orie Melvin want the six remaining justices to halt her prosecution on campaign corruption charges later this month, saying it violates the constitutional separation of powers.

Their request is a direct appeal to the high court of an argument already rejected by Allegheny County Judge Lester Nauhaus, who is to begin picking a jury for Melvin's trial starting Jan. 23.

Nauhaus last month rejected Melvin's argument that the charges should be thrown out because the district attorney — as part of the executive branch of government —has no jurisdiction to regulate the behavior of employees in the judicial branch.

Melvin, 56, is charged with using her former state-paid Superior Court staffers to illegally campaign for a seat on the high court in 2003, an election she lost, and again in 2009, when she was elected. The request, known as a King's Bench memo, are rarely granted because they require the court to exercise extraordinary jurisdiction — in this case, dismissing the charges against Melvin and stopping the prosecution — in a matter of immediate public importance.

Melvin's attorneys argue that it is warranted because the Supreme Court alone has the power to regulate the political activity of lower court employees and that criminalizing those actions through prosecution violates a power reserved to the high court.

Melvin's attorneys point to past Supreme Court decisions, including a 1997 opinion authored by the father of Allegheny County District Attorney Stephen Zappala — former Justice Stephen Zappala Sr. — that rejected efforts by the legislature to criminalize a rule the Supreme Court enacted to ban attorneys from paying referral fees to non-lawyers.

Today is the deadline to file a response.

That response is expected to echo arguments Deputy District Attorney Law Claus made when Melvin's attorneys asked Nauhaus to dismiss the charges on the same constitutional grounds last month. Claus wrote then that Melvin's argument is built upon a faulty premise. The prosecution is not based purely on political activity, but on the use of state resources to promote her own political campaigns, a difference the defendant ignores.

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.

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