Rebecca Warren Outshines Debate Opponents — We have been told that Rebecca Warren was the star of the Pennsylvania Superior Court candidate’s debate held Tuesday, May 7, at the Free Public Library in Philadelphia. Only about 50 persons were in the the audience.
Two seats are being contested for 10-year terms on the court which is the intermediate appellate court for most matters in the state. We understand it to be the busiest appellate court in the nation.
Johnny Doc, Kevin Doc And The Noble Pennsylvania Supreme Court
By Lowman S. Henry
Were you to travel from sea to shining sea you would be hard pressed to find a state appellate court whose reputation has been more besmirched than that of the Pennsylvania Supreme Court. In recent years, justices have been forced to resign for, among other things, sending sexually and racially inappropriate emails, using public office for campaign purposes, and other activities unbecoming a justice on the state’s highest court.
The resignations of Justice Michael Eakin and Seamus McCaffery in what the media dubbed the “porngate” scandal, and that of Justice Joan Orie Melvin for using her court staff to run campaigns not only left the reputation of the Pennsylvania Supreme Court in tatters, but it created an opportunity for Democrats to politicize the state judiciary at the highest level.
Multiple resignations resulted in the unusual situation of having three seats on the seven member bench up for election in 2015. State Republicans were asleep at the switch as national Democrats, seeking ways to redraw congressional district maps, and their labor union allies poured millions into the race. They won all three seats and claimed partisan control of the court.
In the process, one justice in particular, Justice David N. Wecht, openly campaigned for the overturning of Pennsylvania’s congressional district map. Candidate Wecht, violating judicial ethics by opining on a case that was likely to come before him, made it clear he felt the state’s congressional district map was unconstitutionally gerrymandered.
Once on the bench, Wecht and three of his fellow justices made judicial laughing stocks of themselves by tossing out the supposedly gerrymandered map and replacing it with an even more gerrymandered map designed to advantage Democrats – which it did.
The justices had clearly trampled on the legislature’s constitutional power to draw congressional district lines. Representative Chris Dush urged impeachment of the justices saying the ruling “blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, (they) engaged in misbehavior in office . . . each is guilty of an impeachable offense warranting removal from office.”
Dush’s plea fell on deaf ears as the legislature lacked the political will to stand up for either its own powers or for the constitution. Thus did every institution in the judicial spectrum fail the people of Penn’s Woods: the legal community did not call out Wecht for his inappropriate campaigning, the Supreme Court trampled the constitution in the gerrymandering case, and the legislature let them get away with it.
Just when you might think it couldn’t get any worse along comes Justice Kevin Dougherty. Dougherty was one of the three justices that big labor and national Democrat money put on the court in 2015. His brother is Philadelphia labor leader and political powerbroker extraordinaire John “Johnny Doc” Dougherty.
A few weeks ago Johnny Doc was indicted on a wide array of corruption and embezzlement charges. The federal action also ensnared Philadelphia City Councilman Bobby Henon and six others. According to news reports Dougherty and Henon “orchestrated a long-running scheme to steal from the union, use the money improperly, and then attempt to cover up the misspent funds by falsifying federal documents.” WHYY radio also revealed that Dougherty allegedly used union coffers as a “slush fund for thieves and fraudsters.”
The question now becomes does Justice Dougherty fall into that category? We do know millions in labor union dollars were spent on the justice’s campaign for the high court. The Pittsburgh Post-Gazette has already reported that prosecutors say Kevin Dougherty received home repairs and other benefits and allege they were paid for by his now-indicted brother. No such payments were listed by the justice on his required state financial disclosure forms.
To be clear, Justice Dougherty has not to date been accused of any crime. But, as the investigation into his brother’s tangled web of union and political finances continues, and Johnny Doc ultimately stands trial, there is no doubt a dark cloud now hovers over the justice’s head, and by extension over the entire Supreme Court.
There is, unfortunately, no electoral remedy for the court’s current situation. Both Dougherty and Wecht were elected to ten year terms meaning it will be 2025 before they stand for a retention vote. Given the legislature’s unwillingness to act by impeachment, that means the justices will continue to have a major impact on hugely important matters – both legal and political – for years to come.
And that will cast a pall on every decision they render and continue to erode public confidence in both the judicial and legislative branches of our state government.
The judicial branch of state government is no different than the legislative and executive branches. Too much power corrupts, and actions are motivated more by political interests than by the public interest.
That partisan politics pervades Pennsylvania’s statewide judiciary was laid bare by the recent re-gerrymandering of the commonwealth’s congressional districts. In what amounted to a flagrant violation of both the U.S. and Pennsylvania constitutions, a redistricting plan was forced upon voters by judicial fiat.
Under the guise of claims they were correcting an excessive gerrymander, the justices played their role in an elaborate nationwide scheme to force the redraw of district maps in key states. The collusion began at the national level, was put into place when massive labor union campaign donations financed a Democratic takeover of the high court in the 2015 elections, Left-leaning interest groups filed suit, and the justices then issued an unprecedented series of rulings culminating in the institution of a nicer looking, but more highly gerrymandered map favorable to Democrats.
Did the justices right a wrong, or did they overstep their authority? The Lincoln Institute of Public Opinion Research, Inc. conducts a semi-annual Keystone Business Climate Survey of business owners and chief executive officers. In the Spring 2018 survey conducted during the month of March a total of 61% said the court overstepped its authority, 22% think it righted a wrong.
Speaking of wrong, three seats on the state Supreme Court were open in 2015 because of mis-deeds that forced the resignation of three justices. One was convicted of using taxpayer-paid staff to campaign, one was accused of attempting to blackmail a fellow justice, and another viewed material on his office computer that was, shall we say, not suitable for work.
The judiciary’s carefully cultivated aura of superiority now lies in tatters on the courtroom floor. Using that aura, judges and justices have been given certain perks not afforded the other two branches of state government. They get ten year terms, making them unaccountable to voters. They run for retention rather than for re-election, a process that but once has resulted in jurists being retained.
Should judges and justices serve ten year terms, or should the length of those terms be reduced? Twenty-five percent of respondents to the Spring 2018 Keystone Business Climate Survey said they should continue to serve ten year terms. However, 67 percent think shorter terms are in order. Thirty-six percent supports giving judges and justices six year terms, 31 percent think they should serve four year terms.
A similar margin supports doing away with retention elections. Seventy-two percent think judges and justices should stand for re-election, 21 percent say the current retention system should itself be retained.
Pennsylvania has three appellate courts the Supreme Court, the Commonwealth Court and the Superior Court. Judges and justices on these courts are currently elected by voters statewide. These elections are low profile with voters often going into the polls having little or no knowledge of the candidates or their qualifications.
Two potential reforms have been proposed. One is a so called “merit selection” process in which voters would have no say in the selection of judges and justices who would then be picked by power brokers in the other two branches of government. The other would be to elect appellate court jurists by region or by district such as we do with members of congress and the state legislature.
Merit selection received little support from the business owners and CEOs with only 12 percent favoring such a process. Twenty-three percent said we should continue to elect judges and justices in a statewide election. A solid majority, 58 percent said they favor electing jurists by district.
The general trend of the Keystone Business Climate Survey results relative to the court was to support giving voters more say in holding appellate court judges and justices accountable. Those Supreme Court justices who staged the re-districting coup won’t stand for retention for eight years. The only accountability mechanism currently available is impeachment by a 46 percent to 32 percent margin survey respondents said the legislature should impeach the offending justices.
Although some members of the General Assembly have proposed doing just that it won’t happen. Why? Because such a move requires political courage; and political courage in Pennsylvania is about as rare as unicorns and purple squirrels.
The Pennsylvania Supreme Court released its version (see image) of the congressional districts map on Monday. As we noted previously, the Court lacks authority under the Pennsylvania Constitution to draw districts. It is likely that Republicans will file suit in federal court to stop the Court-created Congressional districts from being used in the 2018 elections. One avenue for seeking a federal injunction is summarized by Justice Max Baer, the lone Democrat to dissent from the final opinion:
“While I have expressed my misgivings with allowing an election to proceed based upon a constitutionally-flawed map, I continue to conclude that the compressed schedule failed to provide a reasonable opportunity for the General Assembly to legislate a new map in compliance with the federal Constitution’s delegation of redistricting authority to state legislatures.[US Constitution, Article 1, Section 4]
“My skepticism regarding the time allotted the Legislature has been borne out. Democracy generally, and legislation specifically, entails elaborate and time-consuming processes. Here, regardless of culpability, the Legislature has been unable to pass a remedial map to place on the Governor’s desk for signature or veto.Under these circumstances, Pennsylvania and federal law permit the use of the existing, albeit unconstitutional, map for one final election.” [Emphasis added]
A second issue is the Court’s districts do not minimize the number of splits to local governments (i.e., townships, municipalities, counties, etc.). An analysis by Amanda Holt found that the districts adopted by the Court resulted in more splits (79) than the district maps submitted by Republicans (61) and a separate plan offered by the Senate Democrats (60). You may not recognize her name, but Ms. Holt’s research in 2011 was the primary evidence used to throw out the state House and Senate districts for constitutional reasons. Her current finding is significant because the Pennsylvania Supreme Court stated in their original decision that local governments could only be split to ensure equal population. Furthermore, as she notes on her blog, the fact that the Court’s districts are drawn with more splits could demonstrate to a federal judge a lack of “good faith effort.”
The high likelihood of another lawsuit being brought by Republicans to the federal court regarding the Congressional districts means the issue is still up in the air. We will keep you posted as the story continues to develop.
On Jan. 22, the Pennsylvania Supreme Court issued an opinion striking down the Congressional districts adopted in 2011. The decision requires that new districts be adopted by the General Assembly and approved by the Governor by Feb. 15. If new Congressional districts are not adopted by that time, the Supreme Court will establish new districts. (Why the plaintiffs waited six years to bring the lawsuit is open for discussion. However, a cynic would note that it coincided nicely with Democrats obtaining a majority on the Supreme Court.)
The timeline of the case or even the timeline required for the adoption of new districts is not the biggest problem. What is most concerning is the Court’s threat to adopt districts it devises should its timeline not be met by the legislature. Nowhere in the Pennsylvania Constitution is the Judiciary delegated the responsibility of creating legislative districts. The power to create Congressional districts is reserved for the General Assembly. The Judiciary may invalidate the General Assembly’s districts and require new maps to be drawn. The Supreme Court’s threat to create and adopt its own maps represents a dangerous departure from the separation of powers.
Make no mistake, some of Pennsylvania’s Congressional districts were among the most outrageous examples of gerrymandering in the country. The Court has the ability and authority to invalidate the districts, but it does not have the authority to impose its own districts. This would represent a dangerous precedent and makes the judiciary a super-legislature. If the Supreme Court is successful in seizing the power it has just granted itself out of thin air, we have more significant problems than poorly drawn districts. From redistricting, it is only a short distance to the Courts writing and adopting a state budget if the General Assembly doesn’t get it done in time.
The General Assembly adopted awful Congressional districts six years ago. The problem should have been addressed then via the Constitutionally provided remedy. In the long term, significant redistricting reform is necessary, and that can be accomplished via legislation or changing the state constitution. The Supreme Court’s decision represents a threat to the separation of powers, and that shouldn’t be taken lightly by anyone.
Redistricting Ruling Blind Partisanship Not Blind Justice — The Democrat-controlled Pennsylvania Supreme Court two days ago (Jan. 22) ruled that Pennsylvania’s 18 congressional districts must be re-mapped by the legislature by Feb. 9 else it will do it itself.
The vote was on party lines with Democrats Todd, Donohue, Dougherty, and White concurring and Republicans Saylor and Mundy dissenting.
Democrat Max Baer concurred and dissented noting that it would be better if the order occurred without a primary being just months away, and a special election in the 18th District scheduled for March 13.
While the order specifically exempts the special election, Baer noted that voters in this district would be electing a representative in March in one district while nomination petitions would be circulating for a newly-drawn district, which may or may not include the current candidates for the special election. Again and respectfully, I find the likelihood for confusion, if not chaos, militates strongly against my colleagues’ admittedly admirable effort to correct the current map prior to the May 15, 2018 primary election.
And he is right. While we grant that there is egregious gerrymandering — and have been consistently critical as to how the 7th District was drawn — this was not the time to fix it.
What the court did was not blind justice but blind partisanship. While you can expect partisanship in a legislative body, you cannot have it in on a court.
Redistricting Ruling Blind Partisanship Not Blind Justice
The Pennsylvania Constitution mandates that judges retire at age 70. Some thought that was too early and wanted to make it age 75. The amendment process requires one of the legislative chambers — both of which have been under Republican control since 2011 — to write the amendment. It is then advertised in at least two newspapers in every county at least three months before the next general election. It then must be passed again via simple majority by both chambers in the next session. The wording is then placed on a ballot as a referendum giving the general public final say.
The chambers approved this: Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?
The Senate leadership had second thoughts, however. Cynics are saying they feared the public might vote it down which would have forced the removal of Chief Justice Thomas Saylor, a Republican, giving the Democrats control of the state Supreme Court.
So they filed a legal challenge claiming the words were too confusing. The state Supreme Court laughed and threw it out.
The legislature then passed resolutions, April 6 and April 11 invalidating the election two weeks away. They re-wrote the amendment for the Nov. 8 general election as: Shall the Pennsylvania Constitution be amended to require that justices, judges and justices of the peace be retired on the last day of the calendar year in which they attain the age of 75 years.
Democrats filed a legal challenge saying the delay was unconstitutional because the legislation was not presented to Gov. Wolf as required. Commonwealth Court rejected the argument.
They filed another challenge saying the delay illegal because it was political in nature. Commonwealth Court rejected this claim on July 6.
A challenged was filed on July 21 by former Supreme Court justices Ronald Castille and Stephen Zappala Sr, and Philadelphia attorney Richard Sprague saying the new wording was deceitful.
Supreme Court took the case and voted 3-3 which left the wording as the short version. Saylor appropriately recused himself.
Yesterday, Sept. 16, the court ruled 4-2 that the case can’t be reconsidered, hence the short version without the mention of an existing mandated retirement age is what the voters will see.
The Court got it right with the last argument. It isn’t their job to determine the wording of amendments. On the other hand, it is judiciary’s job to judge process and if constitutional amendments require legislative votes in consecutive sessions with advertising in between, then one wonders how changes in the wording can be made at the last minute.
And what’s it say about our solons if they can’t get it right in the first place?
The word changes are pointless gamesmanship and political pettiness at the highest level. This stuff always backfires especially when one learns it has wasted $1.3 million of our money.
And, for what it’s worth, the retirement age should not be increased. Vote this amendment down on Nov. 8.
Kathleen Kane And Media Failure — Kathleen Kane is an historic figure. She is the first woman and the first Democrat to be elected Pennsylvania’s attorney general. She is also the first Pennsylvania attorney general to have her law license suspended.
Truly a unique legacy.
The law license suspension came after she was charged with multiple counts of obstructing administration of law and official oppression, along with perjury and false swearing relating to leaks from the grand jury investigation the Jerry Sandusky child abuse matter. She had been implying that then Gov. Tom Corbett had handled it inappropriately, something for which Corbett has since been conclusively exonerated it should be noted.
Leaking grand jury information is a big no-no in our judicial system and rightfully so, but it’s not as though that was the only questionable thing she did in her short career as the person responsible for enforcing Pennsylvania’s laws. She refused to refused to defend Pennsylvania’s gay-marriage prohibition in court declaring it unconstitutional — a declaration that was not in her purview to make — and shut down a corruption investigation into Philadelphia politicians which was subsequently re-opened by Philadelphia District Attorney Seth Williams who managed to obtain several guilty pleas.
With all this grief falling on her head, our princess fought back. She said it was all a conspiracy by powerful men who spent their days sending pornography and racist jokes to each other via email. Quick quiz: did any of you gentle readers ever send or receive something a tad inappropriate via email? Of course not. However, it now appears that Ms. Kane certainly received them herself and her twin sister, Ellen Granahan, who heads her child predator unit, not only got them but passed them on.
So what was this woman thinking when she made her counter-charges and hurt the lives of others who were just trying to do their jobs? How can a person of such character end up with such a powerful and important job?
Well, she was sort of pretty and that’s not to be discounted, but so is Sarah Palin.
The real reason is that Ms. Kane’s claims and character were never questioned by the media gate-keepers who we trust to do such things. Maybe they were afraid of being called sexist. Maybe they actually supported her philosophy that traditions are foolish and government is the greater good. Maybe both. Regardless, they took her at her word when she said that she cared, and would look out for children and the little guy, and fight corruption.
It should be noted that the same thing dynamics were in play with Barack Obama and are in play with Hillary Clinton.