Justice Michael A. Musmanno and constitutional dissents, 1967-68.

• Author: Fishman, Joel
• Position: Perspectives: Notable Dissents in State Constitutional Cases

The practice of dissenting opinions in both federal and state courts has long been a part of the adjudication process of courts. Commentary in the secondary literature of periodicals has been ongoing for over a century. One can review early articles by Hampton Carson, (1) and Justice Alexander Simpson, Jr., of the Pennsylvania Supreme Curt, (2) or later writers like Justice Michael A. Musmanno of the Pennsylvania Supreme Court, (3) and more recently, Justice William J. Brennan, Jr. (4) of the United States Supreme Court. In Pennsylvania, court reporting of state cases began with Alexander James Dallas' Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania, Before and Since the Revolution in 1790. (5) The early reports were commercial ventures by a series of reporters totaling some sixty-four volumes before 1845. (6) In 1845, the General Assembly passed an act instituting an official court reporter (7) and for a new title to the now-official court reports, the Pennsylvania State Reports. (8) Section 2 provided for the justices to write their opinions and to submit them to the reporter, but a proviso added "no minority opinions of the said court shall be published by the said reporter." (9) Later acts in the century modified the 1845 act; (10) as late as 1943, statutory law declared: "The decisions of the Supreme Court of Pennsylvania and of the Superior Court shall be published under the supervision of the State Reporter," (11) which included minority opinions. (12)

Michael A. Musmanno, Associate Justice of the Pennsylvania Supreme Court, issued more than 500 dissents during his sixteen years on the bench. Justice Musmanno was already famous when he succeeded to the bench in January 1952, having been involved as a critic of the Sacco-Vanzetti trial in 1927, a judge of the Allegheny County courts from 1932 to 1951, a judge at the Nuremberg Trials after World War II, and the author of several books and articles. (13)

Justice Musmanno was no stranger to dissenting opinions. Upon ascending to the supreme court, he quickly began to publish dissenting opinions. (14) The case of In re Tribune Review Publishing Co. (15) in 1954 led to the only reported case in which a supreme court justice sued the official court reporter over the failure of the reporter to publish his dissenting opinion and which had to be determined by his colleagues sitting on the court against him. (16) He also wrote an article on the value of dissenting opinions in the Dickinson Law Review. (17) Soon after, in 1956, Justice Musmanno published his own book of supreme court dissents after serving on the court for only four years. (18) In the book, he is featured with Dean Roscoe Pound of Harvard Law School who wrote an introduction to the work. (19) From 1956 to 1968, Justice Musmanno wrote more than 500 opinions and 275 dissents.

Justice Musmanno is famous for his writing of court opinions. His legal craftsmanship, use of literary expression, and strong arguments make his opinions extremely interesting to read. (20) For purposes of this article, I have only concentrated on four opinions written at the end of his long career. One case, containing a concurring opinion, coincides with Arlen Specter's mayoralty race in Philadelphia in 1967, but it primarily deals with a district attorney's power to subpoena individuals. (21) Two cases--one containing a separate opinion and the other having a strong dissent by Justice Musmanno--deal directly with Arlen Specter's mayoralty race. (22) The last case, Stander v. Kelly, involves an attempt to stop the primary election of 1968 dealing with the passage of a new judiciary article proposed by the Constitutional Convention of 1967-68. (23) The case of Stander v. Kelley was, unfortunately, Justice Musmanno's last published decision with his death occurring on October 12, 1968, the day after the decision. This decision was a preliminary decision before a full opinion was delivered after Justice Musmanno's death in March 1969 upholding the constitutionality of both the constitutional convention and article V of the Constitution of 1968. (24)

In March 1967, the Pennsylvania Supreme Court heard the case of Commonwealth ex. rel. Specter v. Freed in which Freed appealed from the Court of Common Pleas a subpoena issued by Specter as district attorney who was investigating whether some Philadelphia magistrates were violating state laws concerning the failure to make docket entries into their official records. (25) Justice Roberts issued an opinion against Specter holding that Specter as a city official under the Philadelphia Home Rule Charter did not have the right to issue subpoenas. (26) Article XIV, section 1 under the Constitution of 1874 designated district attorneys along with other officials as "county officers." (27) Later sections 17 (28) and 11 (29) of the First Class Home Rule Charter Act of 1949 provided for local government, but made no mention of the county officers. The constitutional amendment of November 6, 1951, added section 8 to article XIV in which the consolidation of the city and county of Philadelphia made all county officers city officers, (30) but there was nothing in the language that referred to the district attorney and his powers. Lennox v. Clark (31) provided that the prothonotary as a judicial officer and the register of wills as a quasi-judicial officer under article V did not fall under the county-city designation. (32) The Freed majority opinion thus concluded that the office of the district attorney was a state office; however, the district attorney did not have the authority to issue subpoenas. (33)

Justice Musmanno issued a concurring opinion in this case. (34) He opened his opinion with a clear statement that this case had nothing to do with Specter's run for the mayoralty office. (35)

Justice Musmanno agreed that the district attorney had investigatory power, but not subpoena power. (36) Subpoena power, according to Justice Musmanno, "would arm the District Attorney with a weapon of harassment and oppression." (37) He further complained that it would let the district attorney "take mothers away form their small children, invalids out of hospitals, and aged persons out of institutions." (38) The subpoena power would make the district attorney a "one-man grand jury," (39) a threat to anyone who could be "hauled before a non-judicial official, for inquisition on any subject, at the District Attorney's pleasure ... [and] compelled to hire lawyers, although innocent of wrongdoing, in order to prevent an even greater deprivation of their rights." (40)

Specter contended that he had subpoena powers as a city official under the Philadelphia Home Rule Charter, and amicus briefs supported his claim. (41) Justice Musmanno commented that in oral argument he asked the attorneys for the appellee whether the district attorney could go into a neighborhood and call into his office every person to ask about their drinking and other personal habits. (42) The attorneys said it was permissible. (43) "[A]ppalled" at that answer, Justice Musmanno cried out against

this frightening claim of dictatorship power, that a district attorney would not abuse his authority. But we know only too well that power feeds upon power. This is a government of laws not of men, and the way to prevent abuse of power is not to hand out the key to the Tower of London. (44) He further criticized the District Attorney for ordering a subpoena upon a district magistrate who is part of the judicial system. (45) The magistrate's records are open to the public, (46) and at the initial hearing, Specter even agreed that Freed had done nothing wrong. (47) Justice Musmanno argued that if a district attorney could subpoena a magistrate, then he could subpoena a judge of the Court of Common Pleas and possibly a justice of the supreme court, "to stand before his high-backed chair of assumed procurator sovereignty," (48) or "destroy the courtrooms and the entire machinery of justice more effectually than an enemy could do so by dropping a bomb on William Penn's hat." (49)

Finally, he disagreed with the "syllogistic non sequitur" of the hearing judge:

1. He (the District Attorney) may investigate the conduct of magistrates. 2. He may investigate to obtain evidence in any criminal case. After laying down these categorical premises, the Hearing Judge sweeps into his syllogistic conclusion with the statement: 'It follows then that the District Attorney has the statutory power of subpoena.' (50)

   Justice Musmanno criticized the judge for not pointing to a specific statute that gave the district attorney that right. (51) Using medical nomenclature, (52) he stated:

1. A doctor may investigate the conduct of his patient in order to determine symptoms. 2. He may investigate to obtain evidence to determine the cause of the disease from which his patient suffers. Therefore, it follows that the doctor has the statutory power to operate on any part of the patient's body, including amputation, without liability in the event the wrong part of the body is cut, or the wrong limb is detached.

   Granting the District Attorney the powers he seeks in this case would be to give to a District Attorney, any District Attorney, a scalpel and saw with which he could sever away the most fundamental right of American citizenship, the right to be let alone to pursue one's way in accordance with law and justice. This Court could not possibly grant the District Attorney this startling demand. (53)

   Musmanno concluded that the district attorney was a city officer under the Philadelphia Charter, and as a city officer, had no subpoena power. (54)

   In the second case, Commonwealth ex. rel. Specter v. Martin, the issue was whether Specter (as district attorney) had to resign upon running for Mayor of Philadelphia under article X, section 10-107(5) of the Philadelphia Home Rule Charter. (55) An equally divided court (3-3) determined that the district attorney...