McFalls' whistleblowers staking out final claim

By Celeste Whiteford
Sunday, January 12, 2003

The lawyer for the trio suing former Allegheny County Common Pleas Judge Patrick McFalls says he has just completed the case-management conference in his remaining lawsuit against the judge on behalf of his former staff.

Sam Cordes says he is now beginning discovery and depositions to prove that McFalls violated the federal Civil Action for Deprivation of Rights Law 42 U.S. 1983.

The trouble between McFalls and former secretary Barbara Joseph, former law clerk James Joseph and former tipstaff John Jakomas began on Nov. 9, 2001.

That's when the trio complained to county Administrative Judge Joseph James that they had observed that the judge's problems with alcohol were affecting his ability to do his job.

On Nov. 13, McFalls fired all three.

He subsequently faced 39 counts of judicial misconduct before the Court of Judicial Discipline and resigned instead of facing a hearing on the charges.

The former employees' earlier efforts to sue McFalls under the state Whistleblower Law failed.

Under that law, no employer may discharge, threaten or retaliate against an employee because the employee makes a good faith report of wrongdoing or waste. 43 Pa. Const.Stat.Ann s. 1423(a)

But U.S. District Judge Maurice B. Cohill Jr. recently ruled that the Whistleblower Law does not apply to judges. The federal court decided that the decision of a state judge to discharge his employees is the sole preserve of the judge.

Cohill said the Whistleblower Law does not apply to judges because it would be unconstitutional. Under the doctrine of separation of powers, in both the state and federal constitutions, the legislative branch of government is empowered to make the laws, the executive branch is empowered to carry them out, and the judicial branch is charged with interpreting the laws and adjudicating disputes. One branch is not permitted to encroach on the powers of another branch. Thus, the state Legislature has no authority to interfere with a judge's administration of his staff.

Remedies for violations of the Whistleblower Law for the Josephs could have included reinstatement, back pay, seniority rights, court costs and attorney fees.

In the same opinion, the federal court barred claims under the 11th Amendment, which generally bars state officials from being sued by state citizens.

The remaining claims that McFalls violated the First Amendment rights of his staff may still bring them hope for remedies.

GO SOUTH TO SUE, OR NOT. If you happen to be one of the unhappy hundreds of people who fell victim to a gastrointestinal illness on the Carnival Cruise line, here's something else to bellyache about.

In order to sue Carnival, you have to go to Florida.

That's because the contract that Carnival uses for its customers includes a little section called a "forum-selection clause." This is an insertion in which parties agree that any litigation arising from the contract be litigated in Miami-Dade County, Fla., where Carnival is headquartered.

Recently, a 75-year old Pennsylvania woman who fell down a flight of stairs on a Carnival cruise ship found out what a forum selection clause is. In Ferketich v. Carnival Cruise Lines, Senior U.S. District Judge James McGirr Kelly of Philadelphia rejected the plaintiff's argument that it was unfair to enforce the clause because litigating in Miami-Dade County was so inconvenient for the woman.

DRUG FUND. If you get a DUI or a drug-related charge, there will now be an additional fine of $100 to $200, depending on your blood-alcohol level.

Act 198 of 2002 assesses new fines to be dedicated to a Substance Abuse Education and Demand Reduction Fund.

The fund will be distributed in grants to counties and organizations that are fighting drug and alcohol abuse. Funding will pay for education of young people, substance abuse prevention, intervention and treatment services.