Although it sounds like the PA Supreme Court is the court that makes the final “call” on appeals in PA (and that is technically true), but its duties extend far beyond supervision of the outcomes of appeals decided by PA appellate courts.  The PA Supreme court is one of the oldest courts in the nation, having been established in 1722, when PA was a colony of Great Britain.  The “modern” PA Supreme court was established in 1864. There are 7 judges (called “justices”) on the Court, all elected in partisan elections for 10-year terms, and thereafter are subject to non-partisan “retention” (yes-no) elections by the voter every 10 years.  The current make-up of the court is 5 Democrats and 2 Republicans, three of the Democrats having been elected in 2015.  One seat is up for election this year due to the resignation of Justice Michael Eakin. Currently, interim Justice Sallie Mundy, a justice appointed by the governor and confirmed by the PA legislature after Eakin’s resignation, is serving until the election this November. The salary for 2017 (adjusted annually for the cost of living) for Justices of the PA Supreme Court is $206,054, and they are eligible to participate in PA’s generous defined benefit pension plan.

Although the PA Supreme Court can rule on appeals from the Superior and Commonwealth Courts, their acceptance of appeals is strictly discretionary (except for appeals of death sentences). Statistics published by the Supreme Court indicate that for the years 2008 – 2014, an average of 2,000 requests for appeals were filed each year. The highest number of appeals which the Supreme Court accepted for consideration averaged less than 125, and the number of appeals granted (reversing the ruling of a trial or appellate court) in any year during this period was 52 in 2012.

A substantial portion of the work of PA Supreme Court justices is administrative. Through the AOPC (Administrative Office of Pennsylvania Courts), they oversee the work of every court in PA, including the district judges throughout the state, Common Pleas and Appellate Courts, and traffic court.  They write and enforce the rules relating to judges’ conduct through the Judicial Conduct Board, and they admit, regulate, and discipline lawyers who practice in PA.  The Disciplinary Board of the Supreme Court of PA enforces the Rules of Professional Conduct which all PA lawyers must follow, and they administer penalties, including suspension, disbarment, and fines.  If the Disciplinary Board recommends a punishment for a lawyer, the PA Supreme Court handles all appeals and makes the final decision on these punishments – sometimes they even increase the severity of the recommended punishment!  An annual fee paid by lawyers each year is put into a fund to cover client funds mishandled or stolen by lawyers, which is also administered by the Supreme Court.

A little-known fact about the administrative duties of the PA Supreme Court justices is that they write the PA Rules of Civil (and Criminal) Procedure, which provide the framework within which the laws passed by the PA Legislature are enforced, and to make sure that the procedure afforded litigants and defendants by the courts is constitutional.  In a case where there is a conflict between the court rules and the law, the PA Supreme Court has ruled that court rules override the law.  There is a statewide computerized case tracking system for both civil and criminal cases, although for now individual courts of common pleas determine how and whether the court filings in their courts is available to view online.

One of the additional roles of the PA Supreme Court relates to election districts for PA state senate and legislative districts.  PA law does require that they be fairly compact and contiguous, but crafty politicians still manage to gerrymander election districts to favor one party over another.  In PA, not only does the PA Supreme Court determine whether the redrawn election districts comply with the law, they have the power to appoint the chairman of the redistricting commission, which is otherwise divided evenly between the two parties. (This commission does not draw PA Congressional Districts, which are among the most gerrymandered in the nation.)

Dwayne Woodruff, a former Pittsburgh Steelers player and a judge of the court of Common Pleas in Allegheny County for a number of years, is the only Democrat seeking the nomination for Supreme Court Justice in 2017.  He is a person of color and has a history of strong advocacy for juvenile justice; if elected, he would only be the second minority judge elected to any appellate court in PA. Sallie Mundy, the interim justice currently serving, is running as the only Republican candidate for the office.  It seems likely that a substantial amount of money will be spent for the general election this November, since there is no limit on expenditures for judicial races.

Rocked by scandal and the resignation of two justices over the sharing of pornographic emails and videos in recent years, as well as the resignation of one justice after her conviction for public corruption, the PA Supreme Court would surely benefit from a merit-based system of judicial selection (which would require an amendment of the PA
Constitution), but as of now, there appears to be no move in that direction.  Until then, the voting public must rely on the ratings of the state and local bar associations to properly “vet” their choices.  For 2017, Judge Woodruff has been rated as “recommended” by the PA Bar Assn, and Justice Mundy has been rated as “highly recommended.”

“I’m going to appeal…” How often do we hear this declaration when a litigant is disappointed in the decision by a civil court or jury, or when a defendant is convicted in a criminal case in Common Pleas Court?   The good news is that there is a court which will automatically grant the disappointed litigant or defendant the right to appeal the decision they are complaining about.  The bad news is that the chances of being successful on appeal are slim.

The court with the widest jurisdiction for appeals is the PA Superior Court, which was created by the PA Constitution in 1895.  It is the general appeals court from almost all civil and criminal cases tried by Common Pleas courts in PA, including the Orphans Court (wills, estates, guardianships, adoptions, mental health commitments, trusts, and probate issues); criminal courts (cases brought by the district attorney against individuals who are accused of breaking one or more PA laws); and Civil cases (for money damages relating to contract disputes, auto or other accidents, landlord-tenant disputes, employer-employee disputes (except for unemployment compensation cases), and most other types of disputes between individuals or corporations who reside or do business in PA.  In addition, the civil docket includes divorce, support, custody, property division and alimony, and juvenile court cases.

Anyone who is unhappy with a final verdict or judgment in Common Pleas court has the automatic right to appeal to the Superior Court; all that is necessary is to file a “Notice of Appeal” with a copy of the docket (court listing showing the outcome for that case) and pay the required fee (usually less than $300) at the Prothonotary or court clerk office for that county in which the decision was made.  There will be additional paperwork to fill out to proceed with the appeal, and once the trial court has explained the reason for its judgment or verdict, the appellant will have to file a brief (legal argument giving the reason why the trial court’s decision was not in accordance with PA law or procedure.) Then argument will be scheduled before a panel of 3 Superior Court judges (there are 18 judges in all).  Superior Court sessions are usually held in Pittsburgh, Harrisburg, and Philadelphia, but occasionally they are held in other parts of the state.

At the argument, a formal appearance before the 3-judge panel by the litigant, defendant, or his lawyer, and the opposing side (a District Attorney in criminal cases), the parties can argue ONLY matters of record, that is, testimony, evidence, and rulings made by the court on or before trial in the Common Pleas court.  This is often a surprise to the party taking the appeal – they want to put in testimony and evidence not contained in the original trial record.  Even the issue of credibility of witnesses cannot be argued, except in a few extreme cases, as the court rules specify that the trial court’s decision on credibility of witnesses cannot be disturbed on appeal.

What, then can be appealed?  Procedure, rulings on evidence or testimony, claims that the judgment or verdict was not proper under existing PA law.  Since our law consists both of what is written in our statutes AND on court rulings on these issues in prior cases on the same or similar issues, often the law is not as clear cut as it may seem.  And, unfortunately, this is an area where non-attorney litigants who try to represent themselves rarely succeed.  The legal standard for most appeals to Superior Court is “abuse of discretion,” that is, from reading the trial record and hearing the argument, the 3-judge panel finds that the trial court’s judgment or verdict is “manifestly unreasonable.”

It does happen now and again that there is a “rogue judgment” from a Common Pleas Court judge which needs to be corrected, or that a good judge has made a mistake of law. Not all appeals are rejected; however, the rate of success on appeal is poor.  In 2014, published statistics by the Superior Court indicate that 79% of the trial court decisions were affirmed, and only 13% totally reversed, with the balance some other type of disposition, such as being dismissed or partially granted.

Superior Court judges, like Common Pleas Court judges, are elected in political contests when there is a vacancy.  This year in PA, there are 4 vacancies among the 18 Superior Court positions.  Judges are elected in these partisan elections for a 10-year term, and at the end of their term face a non-partisan “yes or no” retention election to keep their seats on the bench.  Most of the candidates are unknown to the voters, who must depend on word of mouth, political party affiliation, or judicial rankings by a newspaper or local or state bar association.

Commonwealth Court, a very unique court in the U.S. state judicial system created in 1965,  is similar in almost every way to the Superior Court, except that they hear appeals from Common Pleas court cases in which the Commonwealth of PA or any of its political subdivisions, including cities, counties, townships, water districts, etc., are  litigants (other than criminal appeals); in addition they hear appeals from administrative courts such as workers compensation  and unemployment compensation decisions.  In some cases where the Commonwealth of PA itself is a litigant, Commonwealth acts as a trial level court. There are 15 Commonwealth Court judges; there are two vacancies which will be filled by voters this year.

Although it is technically possible to appeal Superior and Commonwealth Court decisions to the PA Supreme Court, the PA Supreme Court takes very few appeals, and even those almost always relate to public policy questions, rather than the facts and rulings in a specific case. This means that the “buck” literally stops with these appellate court judges. Their salaries for the year 2017 are $194,422, (most for administrative judges of these courts), along with health insurance and a defined benefit pension plan similar to that of Common Pleas Court judges, except that since their pension benefit is based partially on their final salaries, they will normally get a much larger pension than Common Pleas Court judges when they retire.

Although there have been some attempts over the years by groups trying to institute a merit selection system for appellate judges, so far, these efforts have failed to gain traction.  However, in a recent interview, one sitting PA appellate court judge indicated that with the U.S. Supreme Court “Citizens United” decision which allows huge amounts of money to pour into PA judicial races, the possibility of “stacking” our courts with judges who have strong connections to interest groups means that it is time to give merit selection greater consideration.

Magisterial District Judges are usually the first and often the only representative of the judicial system that most of the citizens of their district have contact with.  There are 517 Magisterial District Judges in PA, in districts determined by the Supreme Court of PA.  They were formerly called District Justices, Magistrates, Magistrate District Justices, and Justices of the Peace, a historic term.   Their pay for 2017 is $89,438 per year, in addition to health insurance benefits and membership in the PA Employees Retirement System.

What is interesting about this judicial office, called a “Minor Judicial Office” by the PA court system, is that Magisterial District Judges don’t have to be lawyers.  Candidates for the minor judiciary need only be 21 years of age, have lived in that Magisterial district for 1 year, and to have successfully completed a 4-week course of study given by the Minor Judiciary Education Board, if they are not licensed lawyers.  When you consider what Magisterial District Judges do, it seems surprising.

The kinds of cases that comes before the minor judiciary vary greatly.  Civil cases up to $12,000, which include a majority of landlord-tenant disputes, are within their jurisdiction.  On the criminal side, MDJ’s handle arraignments and hearings, the first court appearance for people charged with serious criminal offenses. Minor criminal offenses, such as traffic citations and non-traffic citations for violations of ordinances.  These kinds of violations include issues such as municipal weed control, grass-cutting, snow shoveling, and building code violations.

Most MDJ’s also perform marriage ceremonies.  In Pittsburgh District 35 (5-2-35, covering Pittsburgh Wards 7 and 14), one of the issues in the upcoming May 16 primary is that the sitting MDJ, Daniel Butler, does not perform marriage ceremonies.

MDJ’s handle emergency protection from abuse petitions filed by persons who believe they are in immediate danger from a spouse, partner, or relative; these expire in 24 hours or at the end of the next Common Pleas (county) court day.

In an article in the Pittsburgh Post-Gazette several years ago, a retiring MDJ commented that the kinds of cases he heard ran the gamut, from household repairs gone bad, car repairs gone bad, people not paying a dentist’s bill, drunk driving cases, and even truancy cases, kids who have missed too much school.

According to lawyers who regularly appear before MDJ’s, judicial temperament is a crucial issue, as well as their knowledge of the law and their ability to calm the tempers of frazzled litigants.  Although non-lawyer candidates for MDJ must pass a four-week course of training established by the PA Supreme Court, the difference between this and the 3-year full-time study in an accredited law school and passing the state bar exam required of PA licensed lawyers is stark.  Even the 32-hour annual continuing education required of non-lawyer MDJ’s is hardly the equivalent.

The elective term of MDJ’s is 6 years.  Candidates for the office of MDJ may cross-file, that is, file for nomination as both Republican and Democrat; 100 signatures of voters from that magisterial district and registered as members of the party whose petition they are signing are required on nominating petitions.  If MDJ candidates do cross-file and win the primary lotto and are nominated on both ballots, they generally have a smooth ride through the general election in November.

So before you skip your chance to vote at the primaries on May 16, think about the person(s) running for magistrate in your district.  There is a good chance you or your friends and family may find yourself in front of him or her one day.  Is this a person you want making decisions on your speeding ticket, or your loved one’s emergency PFA petition?  If the wrong person gets the job, you will have 6 years to regret it.

The odd-year elections in PA, such as this year, 2017, are held to fill many local elective offices, such as school board and municipal officials, but they also include the filling of vacancies in all judicial offices throughout the Commonwealth.  These judicial elections are the most problematical for most PA voters, as most voters have no idea what the various judges do, what kinds of cases they handle, why it matters who fills the position, and, most of all, who are all of these people running?  What makes them qualified or unqualified, or more qualified than the others?  How can I decide who to vote for?  Needless to say, voter turnout is usually quite low for these elections.

However, this voter confusion (or apathy) related to judicial elections could (and has) brought about the election of judges who lack judicial temperament, lack skills and knowledge, and who are beholden to the big money interests who donate to their campaigns.  Unlike Federal Government judges, which are nominated by the President of the US and confirmed by the Senate after hearings to determine their qualifications and ability, our judges in PA are politicians who run as Democrats or Republicans and are nominated by political party voters in the primary elections held in May, and then run as the nominee of their party for the general election in November.  Non-party-affiliated voters cannot vote in the primaries, so they have no voice in the selection of candidates for the general elections.

There are 7 justices of the PA Supreme Court, 15 Judges of the PA Superior Court, 9 judges of the Commonwealth Court, 451 judges of the Courts of Common Pleas (county-level judges), and 517 Magisterial District Judges in PA.

Although Federal judges have a lifetime appointment (unless they are impeached and removed from office for some bad behavior), PA judges other than the Magistrate District Judges and judges of the Philadelphia Traffic Court (called the “minor judiciary” in the PA unified court system) are elected to a 10-year term.   Minor judiciary judges are elected to 6-year terms. At the end of their 10-year terms, Common Pleas judges and those of the higher courts do not have to run again in the primary or the general election.  The PA Constitution, in a provision added in 1969, permits the voters to simply vote to “retain” or “not retain” that judge in office. Thus if a judge gets a 50% “yes” vote, he or she is retained for another 10 years.  This has resulted, according to a study conducted by Professor Larry Aspin of Bradley University in 2009, in a judicial retention percentage of 99.2%

All candidates running for judicial office in PA (other than the minor judiciary), must be lawyers living in PA and licensed in PA, and in good standing with the PA Disciplinary Board of the Supreme Court.  Candidates for the minor judiciary need only be 21 years of age, have lived in that Magisterial district for 1 year, and to have successfully completed a 4-week course of study given by the Minor Judiciary Education Board, if they are not licensed lawyers.  Until PA voters passed a confusingly-worded amendment to the PA Constitution last year, the retirement age for PA judges was 70; the constitutional amendment raised it to 75. After retirement, judges may serve as Senior Judges when appointed by the PA Supreme Court.

Judicial salaries in PA, in addition to paid health insurance, paid staff, and offices paid for by the Commonwealth, are:  PA Supreme Court:  $206,054 per year, Superior and Commonwealth Court Judges:  $194,422, Courts of Common Pleas Judges: $178,868, and Magistrate District Judges $89,438. The administrative judges for each court receive a slightly higher salary.  All judicial salaries are adjusted for the cost of living each year.

Judges also are eligible for a special defined benefit pension (DBP) at age 60 with 3 years of service or at any age with 35 years of service:  100% of their final salary, plus paid health benefits, and 50% survivorship benefits for their spouses.  Although the PA Legislature attempted to convert this amazing pension benefit into a Defined Contribution plan (DCP) (like an IRA, as it has done with other new employees in the commonwealth’s employee retirement system), the PA Supreme Court ruled (yes, ruling on its own pension) that the legislature could not convert the PA Judges’ DBP to a DCP.

In my first article on gerrymandering in Pennsylvania, introducing and explaining the concept, I focused on the issue of the rampant gerrymandering of Congressional districts in PA, and how using the tactics of “packing” and “cracking,” PA voters now have 5 Democratic and 13 Republican Congressmembers, despite the fact that even in the 2016 election, when President Trump carried PA with 48.6% of the popular vote, and Republican congressional candidates received 52.5% of the popular vote, Republicans won 13 (more than 72%) of all PA congressional seats.  In fact, these statistics are somewhat misleading, because 2 Republican and 1 Democratic congressional candidate ran unopposed, so no opposition party votes were recorded in those districts (PA 3, 13 & 18).  Those districts certainly must be considered “safe” districts” for the incumbents. Generally, a “safe district” is one in which the winner receives 67% or more of the votes cast for that office.   Surveying the rest of the PA Congressional districts during the last three Congressional elections where the district lines have not been changed during this period, (2012, 2014, and 2016), the results are not really surprising.  Nationwide, during the 2012 election, 90% of the incumbents running for office were re-elected, and in 2014, 95% of Congressional incumbents were re-elected (despite the 11% rating that Congress received in the polls), In 2016, when the White House changed hands, 97% of all Congressional incumbents were reelected.

In PA, for election year 2012, the last year there were contests for all 18 Congressional seats, the Republican candidates for Congress in PA won 49% of the total vote for Congressional Candidates, but they received more than 72% of the Congressional seats, 13 out of 18.  How did this happen?  In Districts 1, 2, 13,14, and 17, the winning Democrats received between 60.5% and 89% of the total votes cast in those districts, while the winning Republicans in the rest of the districts between 51.8% and 65.9% of the total votes cast in those districts.

In 2014, two of the districts had no general election contests, that is, there was no opponent on the ballot, District 14 (no Republican) and District 18 (No Democrat).  Obviously, that resulted in at least some under-votes, that is, persons not voting for any Congressional candidate in that district, preferring to leave a blank on the ballot rather than vote for the unopposed candidate of the other party.   It is troubling to think that more than 11% of the seats for Pennsylvania Congressional delegation were uncontested that year. In 2016, there were 3 unopposed candidates, 1 Democrat (District 13), and 2 Republicans, Districts 3 and 18, leaving more than 16% of PA Congressional district elections without a contest.  Assuming this state of affairs resulted in more under-votes for the Democrats, they still collected 46% of the total vote for Congress, while securing less than 28% of the Congressional seats.

  However, despite what appears to be an obvious advantage to the Republicans, why might they be willing to end the practice of gerrymandering in PA?  The answer is:  if you have a relatively “safe seat,” that is, one which the opposing party is unlikely to win in the next election, your party leaders have the whip hand over you.  Assuming that most candidates run for office to do good for their constituents, even the ones who didn’t vote for them, if they refuse to toe the party leadership’s political line, that is, if they try to be independent and vote their consciences, they are likely to be “primaried,”  that is, their own party recruiting and supporting a candidate who will do their bidding, and having them run against the incumbent in the next primary election.  So, what happens is that local issues and concerns get ignored, and every election is more and more about national issues. The parties get more and more polarized as the Congressional representatives strictly follow their party leadership, and gridlock occurs in Washington.

How this situation came to be and what can or should be done about it is the subject of my next article.