By Peter Hall | Pennsylvania Capital-Star
Between the intense campaigns of the midterm and presidential elections, statewide races for Pennsylvania’s appeals courts tend to take a back seat to mayoral and other local elections.
In the wake of sweeping decisions on abortion and affirmative action from the U.S. Supreme Court, the power of the judiciary to alter the daily reality of people’s lives may never have been so clear.
And while state appeals courts have a similar power to decide the law of the land for Pennsylvania, the judges and justices who preside over them are often chosen in elections where only about 20% of voters cast ballots.
In November Pennsylvania voters will choose a new state Supreme Court justice, two Superior Court judges and one Commonwealth Court judge.
Judge Daniel McCaffery, who sits on the Superior Court, is the Democratic nominee for Supreme Court. Montgomery County Judge Carolyn Carluccio is the Republican nominee.
Attorney Jill Beck and Philadelphia Common Pleas Court Judge Timika Lane are the Democratic nominees for Superior Court. Attorney Maria C. Battista and Westmoreland County Common Pleas Court Judge Harry F. Smail are the Republican nominees.
Philadelphia Municipal Court Judge Matthew Wolf is the Democratic nominee for Commonwealth Court; and attorney Megan Martin is the Republican nominee.
Deborah Gross, president of Pennsylvanians for Modern Courts, which promotes judicial reform, said that while the state Supreme Court is Pennsylvania’s highest court, the two intermediate appeals courts often have the last word in cases of statewide importance.
Like its federal counterpart, the state Supreme Court takes only a fraction of the cases it is asked to consider.
“It’s completely discretionary, They decide what they want to take,” Gross said.
The Supreme Court chooses cases to hear based on whether there are new questions of law and whether the circumstances are likely to be encountered again in the future. It hears cases ranging from challenges to the constitutionality of new laws and election challenges to business disputes, family court issues and criminal appeals.
While litigants can ask the Supreme Court to use its special authority, known as king’s bench power, to bypass other courts and hear a case directly, such instances are rare. The only cases where consideration by the Supreme Court is guaranteed are death penalty convictions.
In cases where the Supreme Court declines an appeal, the decisions of the Superior Court or Commonwealth Court stand and may be used to decide the outcome of future cases.
One recent example of a lower court’s decision having a final and transformative effect on Pennsylvania and its residents is the school funding case decided in February.
After years of litigation and a monthslong trial, Commonwealth Court Judge Renee Cohn Jubelirer ruled in favor of parents and school districts who sued the General Assembly to change the way Pennsylvania funds public schools.
Jubelirer found that the state’s reliance on property taxes puts students in impoverished communities at a disadvantage compared to more affluent areas. Republican lawmakers, who had defended the funding scheme, allowed the deadline to appeal to pass without asking the Supreme Court to review the decision.
As a result, Gov. Josh Shapiro and lawmakers in the General Assembly must comply with Jubelirer’s order to develop a new funding system.
In many cases, however, consequential questions go all the way to the Supreme Court to be answered.
The Supreme Court is routinely called upon to decide electoral issues, such as the maps that delineate congressional and state House and Senate districts and whether they are gerrymandered to benefit one party or the other.
The Pennsylvania Supreme Court was also charged with making pivotal decisions in the 2020 presidential election regarding Secretary of State Kathy Boockvar’s decision to extend the deadline for mail-in ballots and whether mail ballots received without dates should be counted.
Duquesne University law professor Bruce Ledewicz noted the U.S. Supreme Court recently reaffirmed the role of state supreme courts in federal election matters, rejecting a legal theory that the U.S. Constitution gives state legislatures the authority to independently run state elections.
Pennsylvania is one of only seven states where Supreme Court justices are elected in partisan contests.
Ledewicz said this year’s election won’t reverse the partisan balance of the court. Since Chief Justice Max Baer’s death last year, the court has had two Republicans and four Democrats.
While the partisan balance hasn’t always mattered in the past, Ledewicz added, with issues on the horizon like reproductive rights and major environmental cases, the partisan make up of the court could be a major factor in the near future.
November’s state Supreme Court race already has at least one ad campaign zeroing in on a candidate’s record. Planned Parenthood’s political arm launched a series of ads accusing Carluccio of “erasing her anti-abortion views from her resume.”
Gross said judges generally don’t like to be labeled as partisan and many claim to be fiercely protective of their judicial independence and fealty to the law rather than political party.
And unlike some states where judges are elected, Pennsylvania judicial candidates are barred under the state’s Code of Judicial Conduct from speaking about how they would rule on a given issue.
That means voters have to more actively seek out information about candidates in order to make informed decisions.
“The information is limited so that voters need to make a decision based on how they have ruled in cases before them,” Gross said.
The Pennsylvania Bar Association and many local bar associations have judicial evaluation commissions that provide assessments of candidates, rating them from highly recommended to not recommended.
Those assessments are based on interviews with the candidates and others who have had professional and personal dealings with them, responses to questionnaires and reviews of their legal writing and other materials. The commission takes into account the depth and breadth of their experience and standing in the community to reach a consensus on their qualifications.
“The candidate is an entire package,” Gross said.
