League of Women Voters of Pa. v. Commonwealth

179 A.3d 1080

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, Carmen Febo San Miguel, James Solomon, John Greiner, John Capowski, Gretchen Brandt, Thomas Rentschler, Mary Elizabeth Lawn, Lisa Isaacs, Don Lancaster, Jordi Comas, Robert Smith, William Marx, Richard Mantell, Priscilla McNulty, Thomas Ulrich, Robert McKinstry, Mark Lichty, Lorraine Petrosky, Petitioners

v.The COMMONWEALTH of Pennsylvania; The Pennsylvania General Assembly; Thomas W. Wolf, in his Capacity as Governor of Pennsylvania; Michael J. Stack III, in his Capacity as Lieutenant Governor of Pennsylvania and President of the Pennsylvania Senate; Michael C. Turzai, in his Capacity as Speaker of the Pennsylvania House of Representatives; Joseph B. Scarnati III, in his Capacity as Pennsylvania Senate President Pro Tempore; Robert Torres, in his Capacity as Acting Secretary of the Commonwealth of Pennsylvania; Jonathan M. Marks, in his Capacity as Commissioner of the Bureau of Commissions, Elections, and Legislation of the Pennsylvania Department of State, Respondents

No. 159 MM 2017

Supreme Court of Pennsylvania.

February 5, 2018

Andrew David Bergman, Esq., Michael Churchill, Esq., Benjamin David Geffen, Esq., Public Interest Law Center, John Arak Freedman, Esq., David Paul Gersch, Esq., Daniel Frederick Jacobson, Esq., R. Stanton Jones, Esq., Mary M. McKenzie, Esq., John Robinson, Esq., Elisabeth S. Theodore, Esq., for Petitioners.

Mark Alan Aronchick, Esq., Claudia De Palma, Esq., Michele D. Hangley, Esq., Hangley Aronchick Segal Pudlin & Schiller, Thomas Paul Howell, Esq., Governors Office of General Counsel, Timothy Eugene Gates, Esq., Ian Blythe Everhart, Esq., Kathleen Marie Kotula, Esq., Pennsylvania Department of State Pennsylvania Office of General Counsel, for Governor Wolf, Robert Torres, Jonathan Marks, Respondents.

Clifford B. Levine, Esq., Alex Michael Lacey, Esq., Alice Birmingham Mitinger, Esq., Cohen & Grigsby, P.C., Lazar Melton Palnick, Esq., for Lt. Governor Stack, III, Respondent.

Jonathan F. Bloom, Esq., Karl Stewart Myers, Esq., Stradley, Ronon, Stevens & Young, L.L.P., for Pennsylvania General Assembly, Respondent.

Kathleen A. Gallagher, Esq., Carolyn Batz McGee, Esq., Russell David Giancola, Esq., Jason Raymond McLean, Esq., Cipriani & Werner, P.C., John E. Hall, Esq., Patrick T. Lewis, Esq., Robert J. Tucker, Esq., Effrem Mark Braden, Esq., for Speaker of the House Michael C. Turzai, Respondent.

Jason Torchinsky, Esq., Shawn Sheehy, Esq., John Patrick Wixted, Esq., Brian S. Paszamant, Esq., Jason Adam Snyderman, Esq., Blank Rome LLP, for President Pro Tempore Joseph B. Scarnati, III, Respondent.

Lawrence J. Tabas, Esq., Obermayer Rebmann Maxwell & Hippel LLP, Timothy James Ford, Esq., Rebecca Lee Warren, Esq., for Brian McCann, et al, Intervenors.

Irwin William Aronson, Esq., John R. Bielski, Esq., Lauren Miller Hoye, Esq., Amy Louise Rosenberger, Esq., Ralph J. Teti, Esq., Alaine S. Williams, Esq., Willig, Williams & Davidson, for AFSCME Council 13, et al., Amicus Curiae.

Robert A. Atkins, Esq., Andrew J. Ehrlich, Esq., Nicholas Groombridge, Esq., Michael Pernick, Esq., Pietro Signoracci, Esq., Jordan Berson Yeager, Esq., Curtin & Heefner LLP, for Political Science Professors, Amicus Curiae.

Richard L. Bazelon, Esq., Bazelon Less & Feldman, P.C., for The Brennan Center for Justice at New York University School of Law, Amicus Curiae.

Martin Jay Black, Esq., Dechert LLP, for Common Cause, Amicus Curiae.

Thomas M. Bondy, Esq., Hannah Garden–Monheit, Esq., Alison Melissa Kilmartin, Esq., E. Joshua Rosenkranz, Esq., for Grofman, Bernard, Amicus Curiae and Gaddie, Ronald Keith, Amicus Curiae.

Edward Diver, Esq., Peter E. Leckman, Esq., Langer Grogan & Diver, P.C., for Campaign Legal Center, Amicus Curiae.

James Christopher Martin, Esq., Traci Sands Rea, Esq., Colin Emmet Wrabley, Esq., Reed Smith LLP, for The Pittsburgh Foundation, Amicus Curiae.

Witold J. Walczak, Esq., American Civil Liberties Union, for American Civil Liberties Union of Pennsylvania, Amicus Curiae and American Civil Liberties Union, National, Amicus Curiae.

Brian Anthony Gordon, Esq. Gordon & Ashworth, P.C., for Concerned Citizens for Democracy, Amicus Curiae.

MEMORANDUM OPINION AND ORDER

WECHT, J.

On Friday afternoon, February 2, 2018, Legislative Respondents ("Applicants") filed an Application seeking my recusal in this matter, which Intervenor Republican voters have joined. On Monday morning, February 5, 2018, Petitioners and Executive Respondents in the instant case (collectively, "Opponents") responded to the Application via three separate answers: one submitted by Petitioners ("Petitioners' Answer"); one submitted by Governor Thomas W. Wolf, Acting Secretary of State Robert Torres, and Elections Commissioner Jonathan Marks ("Governor's Answer"); and one submitted by Lieutenant Governor Michael J. Stack, III ("Lieutenant Governor's Answer") (collectively, the "Answers").¹

A motion for disqualification is directed to and decided by the jurist whose impartiality is questioned. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 370 (1995). The applicable standard of review for a motion seeking a jurist's recusal is as follows:

In disposing of a recusal request, a jurist must first make a conscientious determination of his or her ability to assess the case before the court in an impartial manner, free of personal bias or interest in the outcome. "This is a personal and unreviewable decision that only the jurist can make." Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757, 764 (1989). Once satisfied with that self-examination, the jurist must then consider whether or not continued involvement in the case would tend to undermine public confidence in the judiciary. Id. In reviewing a denial of a disqualification motion, we "recognize that our judges are honorable, fair and competent. Once the decision is made, it is final.... Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291, 1300 (1985).

Travaglia, 661 A.2d at 370 (citations modified). Recusal is not to be granted lightly, lest a jurist abdicate his "responsibility to decide." Pa. Code of Judicial Conduct Rule 2.11(A) (hereinafter the Pa.C.J.C. or the "Code").

As Applicants note, the Code, Rule 2.11(A), provides that I must disqualify myself "in any proceeding in which [my] impartiality might reasonably be questioned." I may decide that this is the case when, while a candidate for judicial office, I "made a public statement... that commit[ted me] to reach a particular result or rule in a particular way in the proceeding or controversy." Id. 2.11(A)(5). I must not make "pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office" with respect to "cases, controversies or issues that are likely to come before the court." Id. 4.1(A)(12). Countervailing, "[u]nwarranted disqualification or recusal may bring public disfavor to the court and to the judge personally." Id. 2.7, cmt. 1 ("Responsibility to Decide)." Furthermore, the Preamble to the Code notes that it is not "intended to be the basis for litigants to seek collateral remedies against each other or to gain tactical advantages in proceedings before a court." Id. Preamble ¶ 7.

Applicants have excerpted several statements from hundreds of appearances that I made across Pennsylvania while campaigning for a seat on this Court in 2015. While a judicial candidate, I responded to many questions regarding my positions on subjects of interest to the voters of this Commonwealth, and I accordingly expressed my views on a broad range of legal issues. These issues included the lawfulness of partisan gerrymandering.

Specifically, Applicants submit that my "position regarding the 2011 Plan, and, more generally, partisan map[-]drawing were clearly defined and cemented long before this case was initiated." Application at 6. They then excerpt a handful of comments made during my campaign for this office, including that "gerrymandering is an absolute abomination," "a travesty," "insane," and "deeply wrong." Id. at 6–7. I mentioned the thirteen-to-five split in favor of Republican representatives in Pennsylvania's House delegation against the background of a Democratic advantage in voter representation. Id. at 6. I further opined that "[e]xtreme gerrymandering is ... antithetical to the concept of one person, one vote." Id. at 7. These comments expressed my thoughts on the topic, something manifestly distinct from a clear commitment to rule in a certain way if presented with a specific challenge based upon a well-developed factual record and the benefit of full and fair advocacy.

Applicants' own chosen quotations also reveal a degree of equivocation and reserve on my part that defies their strongly-worded characterization of my putative prejudice on the particular questions that this case presents, which then were neither before the Court nor, to my knowledge, publicly anticipated. For example, in one instance in which I referred to the thirteen-to-five split, I elaborated as follows:

I'm not trying to be partisan, but I have to answer your question, frankly—. We have more than a million more Democrats in Pennsylvania, we have a state senate and state house that are overwhelmingly Republican. You cannot explain this without partisan gerrymandering. So I don't have a philosophy other than fidelity to our Constitution, and fidelity to our Constitution does not include drawing lines down the middle of streets or separating neighbors from one another. It doesn't include carving up municipalities. Our Constitution and its jurisprudence say that we ... are not supposed to divide up municipalities except where absolutely necessary. We are supposed to have ... compact and contiguous districts. And I challenge anybody to look at the map of our districts and deem them to be compact and contiguous.

Id. at 7–8. On another occasion, I made clear that my thoughts on the matter were distinct from how I might rule on a hypothetical challenge:

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