Michael Krancer
Questions about the role of a judge:
1. What makes a good judge?
A good judge should always remember that he or she is a public servant. A judge needs to be responsive, attentive and respectful to counsel and litigants and ensure that his or her staff are also. A judge should always remember the Judges' Code of Civility which should be a normative standard of behavior. He or she should always decide cases in an impartial manner after consideration of all the briefs and arguments. Also, a judge should have an insatiable curiosity about the case at hand which means he or she should know the case thoroughly and do the homework necessary to know the law on the subject. This would include researching the law on the subject of the case before him or her which may not be highlighted by the parties in their briefs.
2. What is the biggest trap or mistake a judge can make?
The biggest mistake a judge can make is to apply his or her personal predilections in making decisions. Judges should be directed by the text of the Constitution or statute(s) involved in the case and not his or her personal views on what ought to be the law.
3. How would you describe your judicial philosophy?
I am a textualist. I decide cases based on the text of the Constitution or statute and the reasonable meaning of that text. I believe judges should interpret the law, not make law.
4. Which opinion do you think represents your best work?
Brunner v. DEP, 2004 EHB 684, 703-11 (Krancer, J., dissenting), wherein I express my view in dissent that the courts cannot and should not be adding words to statutes which the Legislature did not put there. This dissent was embraced by the Commonwealth Court, which reversed the majority opinion. In reversing the majority opinion, the Commonwealth Court stated:
"The dissenting opinion from the EHB filed by Chief Judge Krancer makes a very good argument for why Brunner's interpretation of the language of the statute is best. Chief Judge Krancer demonstrates that the plain meaning of the words used by the legislature fit Brunner's use of foundry sand as ADC [alternative daily cover] within the exception in Section 6301(b)(1). We agree with Chief Judge Krancer's analysis on this subject."
Brunner v. DEP, 869 A.2d 1172, 1174 (Pa. Cmwlth. 2005), petition for allowance of appeal denied, No. 164 WAL 2005 (Pa. Sept. 8, 2005).
5. If you could, which opinion would you take back or revise? Why?
On retrospect and after having seen a trial on the issue, I think I was wrong to have been with the majority in Eagle Environmental v. DEP, 2002 Pa. Envirn. LEXIS 20 (2002 EHB 335).
In Eagle, our court upheld on summary judgment the legality of a regulation requiring the applicant for a landfill permit to identify the social and economic benefits created by the proposed landfill, and to demonstrate that those benefits clearly outweigh the known and potential environmental harms caused by the project. My reasons for desiring to revisit that decision are explained in my concurring opinion in County of Berks v. DEP, 2005 Pa. Envirn. LEXIS 23 (2005 EHB 233). I noted first "I write separately, however, to say that after now having seen an attempt to apply the harms/benefits analysis in practice, I am completely perplexed about how the test was applied in this case and how it is supposed to be applied in the future." I write that "even to define something as a harm or a benefit, especially social or economic harms or benefits in this context, is a hopelessly subjective task which would vary radically depending on from whose frame of reference the question is being viewed." Moreover, "¿even if the government regulators could come up with an objective standard to identify and differentiate harms and benefits, the application of the comparison by the regulators is impossible. That is because the supposed harms and benefits are not objectively quantifiable and are not comparable to each other on any equational basis. This case proves it." In the final analysis, I wrote:
"[s]o where does that leave us now after this attempted application by the government of the harms/benefits test in this case? We must really be talking about a harms/benefits analysis in which the government regulators are applying their personal subjective judgment;.. That is just another way of saying that the standard is personal opinion, personal judgment or gut sense of the government officials involved in doing the work on the ground. But we are supposed to be a government of laws, not of men and women. Clearly, the ¿harms/benefits' analysis, as we see it today and looking into the future, is antithetical to that principle."
6. What in your background has prepared you best for being a judge?
My entire experience prepares me for being a judge and Justice. I graduated first in my class from law school and wrote on our school's Law Review and was a Law Review editor. I have 17 years experience as a commercial litigator. Also, I have served as a judge on a mixed trial and appellate court for seven years. Beyond that I have the life experience, imbued by my family, of dedication to public service and serving my community.
7. How would your personal views and experiences influence you as a justice?
My personal view would not effect or influence my judging at all: that is the essence of being a textualist and originalist jurist. I am directed by the text of the Constitution and/or the statute(s) at issue in the particular case. That is not to say that my life's experience does not play a role in my decision-making. Judges are human beings with life experience and that life experience is brought to the bench and applied to the job of being a judge
8. What separates you from the other candidates and why would you be a better addition to the Supreme Court?
I am part insider and part outsider. Although I was a sitting judge, I was not part of the current judicial system which was the focus of public unhappiness with matters surrounding the current judiciary such as the pay raise controversy. I am often asked about the pay raise controversy and I tell people that I did not get the pay raise. My court was not part of that legislation or part of the suit filed afterward by the judges to keep their pay raise. Also, I consider myself and am considered by others as an academic and legal scholar. In addition, I have the practical life experience of having been a commercial litigator in the private sector.
9. If elected, what would be your biggest priority on the court?
I would like to see changes in the way the Supreme Court does business. I would advocate more transparency in the Court's rulemaking process. In addition, I would advocate for published opinions in every case, especially those with political implications.
Questions about the law and legal practice:
10. Is there any area of the law that you think needs a closer look or guidance from the Supreme Court?
I would like to hear from practitioners on whether there is any area of the law which needs a closer look or guidance from the Supreme Court. I think that the administration of justice, especially in our larger urban areas, is an area at which the Court needs to take a closer look. I attended the Philadelphia Bar Association's program, "Urban Courts Symposium: Compelling Issues Facing Urban Courts Today" in Philadelphia presented in September, 2005. There are many issues, including criminal justice, special drug courts, consumer law, language barriers and multi-cultural access to the courts, which were of concern to the presenters on the various panels. I would like to consider those questions and what the Court could do in that area.
11. When deciding a case, how do you frame the issue and conduct your analysis to reach a conclusion?
I focus on the text of the Constitution or statute(s) at issue. My analysis is text-based: i.e., what does the text say and what does it mean with respect to the question presented?
12. Do you think there is a dilemma in how Rule 1925(b) is applied? And if so, what needs to be done to fix it?
Article 5, section 9 of the Pennsylvania Constitution must be the starting point to consider Rule 1925(b) and its application. That section provides, "[t]here shall be a right of appeal in all cases to a court of record from a court not of record." Waiver is one of the most disfavored notions in the law because both lay people and legal professionals consider waiver to be just plain unfair. Rule 1925(b) must be read and applied with the backdrop of Article 5, Section 9 such that it does not subtract from it. I would be most troubled by a loss of a citizen's Article 5, section 9 rights via an act of negligence by an attorney or litigant. I actually faced this issue regularly because our court is governed by a provision which provides that an allegation not raised in the Notice of Appeal (our original filing) is waived. We are directed by higher court precedent, specifically Croner v. DER, 589 A.2d 1183 (Pa. Commw. 1991), to review Notices of Appeal broadly so as to avoid waiver. We have applied the Croner mandate on numerous occasions.
13. Is the court threatening to make the practice of law too burdensome for solo and small-firm practitioners by increasing requirements for CLE, maintaining certain types of bank accounts, moving toward effective requirements for malpractice insurance, etc.?
14. Conversely, are clients adequately protected by the aforementioned requirements?
I need to hear more on the subject of whether the court is threatening to make the practice of law too burdensome for solo and small practitioners. To many citizens, the solo practitioner or small firm is the only access they have to legal counsel. I am concerned about the trend of the concentration of law practice into larger and larger firms. I think that the entire practice has to look at this issue as we all have an interest in seeing that solo and small practice firms are not unduly burdened such that it becomes too difficult to practice law in that manner. On the other hand, we need to be sure that the clients are protected and that the public has total confidence in the Bar and lawyers generally.
15. What is the greatest threat to the practice of law or problem the profession faces?
I think the greatest threat faced by the legal profession is the poor image that we have with the public. It is popular to hold lawyers and our profession in low regard. I believe that this public image is not deserved but it is a perception and must be dealt with. We need to remind the public that lawyers are on the forefront of securing and protect many rights for many citizens every day. I always like to tell people that were it not for lawyers, Rosa Parks would still be in the back of the bus. That message needs to be reinforced. At the same time, we need to vigilantly police ourselves and make it clear that there is no place for "bad apples" in our profession.
16. How important is consensus ¿ particularly unanimous consensus ¿ in high court opinions and are there limits when a justice should only concur, or should they do it any time they feel like it?
I think consensus is important. The court on which I sat functions as part trial court, part appellate court. We have five judges and, while we sit as individual trial judges over our cases, our decisions are by a majority. Thus, our deliberations are like that of an appellate court. Alexis de Tocqueville wrote in Democracy in America that judges must "be statesmen [and stateswomen], wise to discover the signs of the times, not afraid to brave the obstacles that can be subdued, nor slow to turn away from the current when it threatens to sweep them off, and the supremacy of the Union and the obedience due to laws along with them." Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer (Doubleday & Co. 1969), 150-51. On the other hand, Alexander Hamilton biographer Richard B. Morris describes his subject as although brilliant and erudite, not a statesman. He noted that Hamilton's failures as a statesman "are attributable more to personality and tactics than to basic principles." He was an attacker. He was opinionated and lacked an understanding of the art of compromise. He was inflexible and "lacked terminal facilities." Interestingly, Morris wrote that Hamilton was "candid, but also indiscreet." Interestingly also for the purposes of this question, Morris wrote that Hamilton "wrote brilliantly, but he wrote too much and too often." For example, Hamilton's "astonishing attack on President John Adams left Hamilton a party leader without a following." His actions in that regard destroyed the Federalist Party as a meaningful force in American politics of the time. Richard B. Morris, Alexander Hamilton and the Founding of a Nation (New York; Dial Press, 1957), xii.
To me there is a lesson to be learned from all of this and I am counseled that a judge in an appellate court, especially a Supreme Court, be a consensus builder in his or her court to the extent possible. Passing on important issues, and sometimes deferring passing on important issues to allow time for the political process to pass on them, is an important responsibility of the Supreme Court. Frankly, to borrow a metaphor, one gets more done with important issues with honey than with vinegar.
With that being said, I have written approximately 110 opinions as a judge, three of which have been dissenting opinions and five of which have been concurring opinions in a handful of cases in my 7 years as a judge. In my dissents, I believed that the majority got the law wrong. Two of the cases in which I dissented were appealed and the Commonwealth Court agreed with me both times. Brunner v. DEP, 869 A.2d 1172, 1174 (Pa. Cmwlth. 2005), petition for allowance of appeal denied, No. 164 WAL 2005 (Pa. Sept. 8, 2005); North American Refractories Company v. DEP, 791 A.2d 461 (Pa. Cmwlth. 2002). I have quoted above what the Commonwealth Court said in reversing the majority opinion and uphold my dissent.
I have filed concurring opinions where I thought an important point which ought to have been made by the majority was not and in order to educate. For example, in DEP v. Leeward Construction, 2001 EHB 870, a civil penalty case, I wrote the following:
"I write separately only to comment that I think that a prominent theme of the civil penalty imposed in cases like this one, which involve such a flagrant and volitional course of chronic violative conduct, should be, at a minimum, to make sure that any and all profit that the violator may have made on the job on which it engaged in its pattern of illegal conduct is totally disgorged¿Allowing Leeward in these circumstances to have profited at all from this transaction is not only wrong, but also it puts at a competitive disadvantage companies that take the steps and incur the costs to perform their activities in a law abiding fashion. This latter situation creates a synergy of adverse effect by simultaneously promoting the degradation of the environment and undermining the competitive free market system. Thus, I would have like to have seen much more evidence elicited and presented on the economic aspects of the contract or contracts including, but not limited to, the base contract payment amount, costs to perform and profit earned. In addition, I would have also liked to have been in the position to have been able to have considered whether to add an appropriate additional amount of civil penalty, over and above the amount of the profit earned, for punishment and deterrence."
I have also written a concurring opinion to signal that I have changed my view on a legal issue. In Eagle Environmental, II, L.P. v. DEP, 2002 Pa. Envirn. LEXIS 20 (issued April 4, 2002), I had joined the majority opinion which upheld in summary judgment the so-called "harms-benefits" test for landfill permitting. Basically, the "harms-benefits" regulation requires that a party seeking a landfill permit show that the benefits of the project substantially outweigh the harms. However, in County of Berks v. DEP, 2005 Pa. Envirn. LEXIS 231 (issued March 31, 2005), I wrote a concurring opinion after a trial of a "harms-benefits" case in which I noted that "after now having seen an attempt to apply the harms/benefits analysis in practice, I am completely perplexed about how the test was applied in this case and how it is supposed to be applied in the future." I further expressed my doubt that the subjective nature of the "harms-benefits" test could conform to due process and I feared that its application would boil down to the imposition of the personal predilections of government officials. I ended with this comment:
"So where does that leave us now after this attempted application by the government of the harms/benefits test in this case? We must really be talking about a harms/benefits analysis in which the government regulators are applying their personal subjective ¿judgment;'... That is just another way of saying that the standard is personal opinion, personal judgment or gut sense of the government officials involved in doing the work on the ground. But we are supposed to be a government of laws, not of men and women. Clearly, the ¿harms/benefits' analysis, as we see it today and looking into the future, is antithetical to that principle."
17. How important is stare decisis and when should a court depart from it?
Stare decisis is an important guide and I have the utmost respect for it. However, it should not and cannot ever be a rule which is applied mechanically. To do so would be to forever sanction mistakes and injustice. Some of the darkest moments in our nation's history and for our Supreme Court have come in cases such as the Dred Scott decision of 1857 (holding an African-American to not be a citizen of the United States and property only), Korematsu v. United States of 1944 (upholding the internment of Japanese Americans in prison camps) and Cumming v. Richmond Board of Education of 1899 (upholding racial segregation in public schools). Nobody would argue that those cases should be reinforced because of stare decisis and, in fact, later Supreme Courts have not hesitated to overrule them.
What Justice Scalia had to say in United States v. Virginia, which I quoted earlier has relevance here too with respect to the important role and status of stare decisis in our system of jurisprudence. Again, he wrote,
"The Supreme Court of the United States does not sit to announce ¿unique' dispositions. Its principal function is to establish precedent¿that is, to set forth principles of law that every American must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the ¿rationale upon which the Court based the results of its earlier decisions.'¿That is the principal reason we publish opinions."
United States v. Virginia, 518 U.S. 515, 596, 116 S.Ct. 2264, 2305, 135 L.Ed2d 735, 790 (1996) (Scalia, J., dissenting). Of course Justice Scalia's rationale is equally applicable to the Pennsylvania Supreme Court.
However, as Justice Scalia has written,
"A judge looking at a constitutional decision may have compulsions to revere history and accept what was once written. But he [or she] remembers above all else that it is a Constitution which he [or she] swore to support and defend, not the gloss which his [or her] predecessors have put on it."
South Carolina v. Gathers, 490 U.S. 805, 825 (1989)(Scalia, J., dissenting).
An almost pathetic statement about slavish reliance on stare decisis was provided by Justice John Marshall Harlan, III in his opinion holding his nose and adhering to the precedent of Miranda v. Arizona despite his strong belief that Miranda was decided wrongly. He wrote in Orozco v. Texas, 394 U.S. 324 (1969), as follows:
"The passage of time has not made the Miranda case any more palatable to me than it was when the case was decided¿Yet despite my strong inclination to join in the dissent of my Brother White, I can find no acceptable avenue of escape from Miranda in judging this case¿Therefore, and purely out of respect for stare decisis, I reluctantly feel compelled to acquiesce in today's decision of the Court, at the same time observing that the constitutional condemnation of this perfectly understandable, sensible, proper, and indeed commendable piece of police work highlights the unsoundness of Miranda."
Orozco, 394 U.S. at 327-38 (Harlan, J., concurring). Here is an example of sacrificing principle at the altar of stare decisis which I do not countenance. Stare decisis, as lofty and important a tool as it is, should not require or even justify thissort of judicial abstemiousness.
My record shows that I am not slavishly or abstemiously bound by stare decisis as my concurring opinion in the Eagle case discussed above shows. In the appropriate case I will decline to apply stare decisis.
In any event, we have a delicate balance between respect for stare decisis and recognizing that prior decisions can be wrong and in need of change or even outright repudiation. Naturally, that balance would have to be struck on a case-by-case basis, which is how I would approach the work of applying or not applying stare decisis.
Openness of the courts:
18. Does the court need to improve efforts to make the courts and what they do more open and accessible to the press and public?
I think there is a public perception today that courts need to improve efforts to make the courts and what they do, i.e., how they conduct their business, more open and accessible to the press and the public. I will comment on the following areas in particular:
Judicial Independence. There is a perception today of a loss of the independence of the judiciary. To some extent this is due to reports of apparent private meetings between court judges and members of other branches of government at which government and/or court business was discussed. As a corollary, there is a perception that the Court is what some critics call "political."
As for meetings with other elected officials, my view is that such meetings, to the extent they deal in any way with court business, should take place only in public and on the record. To me, that is part and parcel of judicial independence and I will discuss that in more detail in later responses.
Written Opinions. There is a perception that important decisions of the Court are being rendered without written opinions describing the rationale for the Court's opinion. This has caused some dissatisfaction with the public and the legal community, as it should. An example often cited is the opinion of the Supreme Court allowing the President Pro Tempore of the Senate to be the Lieutenant Governor at the same time, which critics say was contrary to the Disqualification To Hold Other Office provisions of Article II, Section 6 of the Pennsylvania Constitution.
I strongly believe that opinions of the Court should be published opinions which state clearly the legal and logical rationale behind the decision. Courts are public bodies administering the public's laws and the public's business. "Justice" done behind closed doors is not justice as I understand it as an American. The parties to the case, their advocates and the public are entitled to a public explanation of the decision and it is the responsibility of the judicial branch to provide it. Although my view on this applies to all cases, I think it especially important for cases with any political implications. Public confidence in not only the judiciary but in our entire political system of liberty, equality and freedom is impacted in cases with political implications.
Justice Scalia has written an excellent recitation on why we ought to be publishing opinions and why it is so important to do so in our system of jurisprudence. He states:
"The Supreme Court of the United States does not sit to announce ¿unique' dispositions. Its principal function is to establish precedent¿that is, to set forth principles of law that every American must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the ¿rationale upon which the Court based the results of its earlier decisions.'¿That is the principal reason we publish opinions."
United States v. Virginia, 518 U.S. 515, 596, 116 S.Ct. 2264, 2305, 135 L.Ed2d 735, 790 (1996) (Scalia, J., dissenting). Justice Scalia's rationale is equally applicable to the Pennsylvania Supreme Court.
The court on which I sat publishes all of its opinions. This practice is instinctual and normative to me.
Public Rulemaking. The public perceives that the Supreme Court has lost transparency in its rulemaking process. This is often referred to as absence of "Sunshine Rulemaking" from the Court.
The court on which I sat has always operated with a nine-member public rule-making body known as the Rules Committee established by 35 P.S. § 7515. Judges are ex-officio members of the Rules Committee. The Rules Committee is constituted as follows: two members appointed by the Governor and the Secretary of the Department of Environmental Protection, and one member appointed by each of the following: President Pro Tempore and Minority Leader of the Senate, the Speaker of the House and Minority Leader of the House, and the Citizens' Advisory Council. Rules Committee meetings are open to the public. All of our rules are passed in an open public process with public input pursuant to the Commonwealth Documents Law, 45 P.S. sec. 1201-1208. To me, such a process is normative.
Whether or not the Supreme Court has the authority to promulgate rules out of public view and process, I believe that public confidence in the Court and the court system would be enhanced if Rules were formulated in a public process. That is the process which I have been involved in with my court and I embrace it.
19. Do you favor cameras in the courtroom, particularly for oral arguments before the Supreme Court?
I have an open mind about having cameras in the courtroom but I would like to hear more argument on the question before I would make up my mind as a general matter. Courtroom decorum is important and we would have to hear and see whether cameras would adversely impact courtroom decorum. Any broadcasting or recording of court proceedings would have to be done in a manner which would be tasteful and not intrusive. The public's last experience with mass media in the courtroom, the Anna Nicole Smith episode, did not prove to be a stellar moment for American judicial history or the image of the court system. Certainly, there is less risk of experiencing the negatives of cameras in the courtroom for Supreme Court oral arguments than for trial court matters.
20. Once litigants have chosen to enter the arena of the public courts, should confidential settlements be discouraged? Or should they be encouraged as a way for the system to reach swifter resolutions?
Having chosen to enter the arena of the public courts is not automatically a surrender of the right to a confidential settlement. Parties can always settle their suit, have it dismissed and still have a confidential settlement agreement between themselves which is completely outside the court process. Also, there are other mechanisms available for swifter resolution of disputes if the parties require greater alacrity than is provided by the court system. For example, there is private dispute resolution and arbitration.
The question of court imprimatur on confidential settlement agreements raises different issues, however, and caution is counseled in this regard. Article 1, Section 11 provides, among other things, that "all courts shall be open". This provision is unique to the Pennsylvania Constitution; there being no like provision in the federal Constitution. Justice Flaherty in his dissenting opinion in Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (Pa. 1980)(suppression hearing allowed to be closed), has construed this provision literally and to allow no exceptions albeit in a different context. He has written as follows:
"Quite simply, our Constitution plainly states, ¿All courts shall be open,' thus proscribing the closing of a court proceeding. There are no exceptions and no discretion to be exercised, other than to utilize available alternatives, such as change of venue, sequestration, and the like; but, in no event is the closure of a court proceeding constitutionally permissible."
Hayes, supra, 414 A.2d at 339.
Also, Article 1, Section 7 of the Pennsylvania Constitution is the analogue to the 1st Amendment except that it states more when it says that the press may "undertake to examine the proceedings of the Legislature or any branch of government and that no law shall ever be made to restrain the right thereof" meaning the right to examine the proceedings of the Legislature or any branch of government.
These provisions of the Pennsylvania Constitution provide pause when considering whether a court should provide its imprimatur on a closed settlement.
21. Under what circumstances should judges seal the records in a case? In general, should the practice of sealing records be encouraged or discouraged?
Much of what I wrote in response to question No. 20 is applicable here. While neither the Supreme Court of the United States nor that of the Commonwealth of Pennsylvania has ruled that the Constitutional provisions relating to open and public court proceedings provide an absolute or unqualified right to an open courtroom in all cases, and most of the cases relate to criminal cases, the courts have noted the substantial public interest in open courtrooms when applying a balancing test.
I would have to review the circumstances, read the briefs and hear the oral arguments on any case in which a party was requesting sealed proceedings in order to render a decision on such a request. The outcome would depend on all the factors just mentioned.
22. Should the court make more of its dealings ¿ including meetings with other elected officials and reasons for recusal ¿ open to the public?
Yes. Again, what I have written in response to the last two questions applies again here. As noted later in my responses to questions in this questionnaire, I have been asked to recuse myself twice. In one case I wrote an opinion stating the reasons I did not recuse myself and in the other I dealt with the motion in open court on the record and stated my reasons for recusing myself on the record. I respect the approach of Justice Scalia who wrote a detailed 21- page memorandum opinion outlining the reasons he declined to recuse himself in the case of Cheney v. United States, 541 U.S. 913, 124 S. Ct. 1391, 158 L. Ed. 2d 225 (2004).
As for meetings with other elected officials, my view is that such meetings, to the extent they deal in any way with court business, should take place only in public and on the record.
Politics and public perceptions:
23. What should be the nature of the relationship between the court and the members of the other branches of government and how should the justices, particularly the chief justice, interact with them?
This question, to me, involves the question of judicial independence and separation of powers. I write about that topic in my response to question No. 18 in the Openness of the Courts section of this questionnaire and No. 30 of this section of the questionnaire and much of what I say there is applicable here. Simply, put, private interactions between members of the judiciary and members of the Legislative or Executive branches is antithetical to judicial independence and the principle of the separation of powers.
24. The pay raise decision: who do you think got it right, Justice Castille or Justice Saylor? Explain your answer.
The "pay raise" decision, Stilp v. Commonwealth of Pennsylvania, 588 Pa. 539, 905 A.2d 918 (Pa. 2006), is so complex that it is impossible to say that either Justice Castille or Justice Saylor got it all right or all wrong. I should make clear at the outset that to the extent I am asked to and do comment on my view of Supreme Court decisions handed down in the past, I have not read the briefs in those cases nor heard the oral arguments rendered. I have read and studied the opinions and my comments on these judicial opinions are rendered by me in my capacity as a citizen, legal scholar and commentator. Naturally, any comments I make here on such decisions are not meant to, nor could they, bind me as to how I might rule in the event a similar case or controversy arose and was presented to the Supreme Court with me as a sitting Justice. I have the utmost respect for the legal scholarship and intellectual acumen of both Justice Castille and Justice Saylor.
I have the following comments, however, in my role as a legal scholar and legal commentator.
General Approach to Article III, Sections 1-4 Process Requirements. I think the public has the perception that the majority opinion paid short shrift to these requirements. It seems that the public has the perception that the majority opinion marginalized the requirements of Article III, Sections 1-4 by suggesting that they applied only to a time gone by, a "unique time of fear of tyrannical corporate power and legislative corruption". Stilp, supra, 588 Pa. at 594, 905 A.2d at 951-52. While I am sure that the majority did not intend to create the impression that the aforementioned Constitutional provisions are passé (indeed the majority stated that these provisions "retain their value even today") as a "textualist" and an "originalist" I am fearful that the majority opinion created that impression with the public. As my judicial philosophy is that of a "textualist" and an "originalist," I would have to have stated even more categorically that the Article III, Sections 1-4 provisions are not so limited in their reach.
Presumption of Constitutionality. The majority opinion applied the presumption of constitutionality to Act 44. In one very important area, however, no such presumption of constitutionality can or should apply and that is where the case involves a disagreement between coordinate branches of government regarding the constitutionality of an action of one of them. The reason for this is the doctrine of separation of powers. This principle was explained by Justice Scalia in his dissent in Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed. 2d 569 (1988), as follows:
"Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: ¿The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers . . . .' Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt."
Id., 487 U.S. at 704-05, 108 S.Ct. at 2626, 101 L.Ed.2d at 614 (Scalia, J., dissenting).
Justice Scalia's view on this may very well have been appropriate to apply in the "pay raise" case. While Stilp and most of the other plaintiffs challenging the constitutionality of Act 44 were private parties, State Treasurer Bob Casey, who was also challenging the constitutionality of Act 44, was doing so in his capacity as an Article IV, Section 1 Executive Branch official. Thus, we had in that case, to paraphrase Justice Scalia, an issue which pertains to separation of powers about which the political branches were in disagreement, and, thus, neither can be presumed correct. On that basis, I would not have been so fast to apply the deference standard at all in the Stilp case.
Substantive Constitutional Challenges. It seems to me that the character of the Bill did change from a Bill regarding Executive Department compensation to a law involving compensation of Executive Department and other than Executive Department officials. This would seem to be in contravention of Article III, Sections 1 (No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose) and 3 (No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof) of the Pennsylvania Constitution.
Unvouchered Expenses. It is clear to me that Justice Castille was dead on correct when he concluded that, "we hold that Stilp has carried his burden of proving that the legislative unvouchered expense provided in Act 44, § 2¿, in fact represented a mid-term increase in legislative salary which clearly, palpably, and plainly violated the proscription in Article II, Section 8 of the Pennsylvania Constitution. (The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term)."
Non-Severability Provision. I think Justice Saylor got this aspect of the case correct. Rejecting Constitutionally violative provisions of a statute only is almost as old a practice as is our Republic. It was done in Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803). It is hard for a "textualist" and an "originalist" like me to subscribe to the theory that a non-severability clause explicitly written into a statute is not an "inexorable command" but, instead, to be viewed as providing a "rule of construction" or a "presumption." Stilp, supra, 588 Pa. 539, 629, 905 A.2d at 972. That the Pennsylvania Statutory Construction Act, 1 Pa. C.S. § 1501 et seq., provides a presumption of severability suggests that the severability versus non-severability question is a Legislative choice and the Legislature may override that presumption by insertion of a non-severability clause into a statute. I see no overstepping of the Legislative prerogative in its doing so. I see the "separation of powers" point differently than does the majority. Article II, Section 1 of the Pennsylvania Constitution provides that the "Legislative power of this Commonwealth shall be vested in a General Assembly." The Legislature would seem empowered, therefore, to provide its laws with a non-severability provision if it so chooses.
Of course, I may not have even arrived at an analysis of the non-severability provision since, as noted earlier, I am of the mind to believe that Act 44 was invalid ab initio for failure to comply with Article III, Sections 1 and 3 of the Constitution.
Act 72 Analysis. As alluded to just before, I would have been of the mind to believe that Act 44 was unconstitutional ad initio. I would, therefore, have placed my analysis of Act 44 first instead of second and I would not have been required to discuss Act 72 at all.
25. Since judges are elected and you are running as a member of a political party, what does your party membership say about you and how big a role does it play in your outlook on legal matters?
I am one of the two endorsed candidates of my party. I am honored to be an endorsed candidate. The party endorsement process was a fully open and democratic process in which the candidates were vetted before the 365 delegates. While the endorsement process reaffirms my confidence in democracy, being endorsed does not play any role in my outlook on legal issues.
26. Should party membership/loyalty play any role in getting a party's nomination?
Party membership and/or loyalty should have as little as possible to do with obtaining the endorsement. I found that party membership or loyalty played little if any role in my endorsement process. My experience shows this. I am part insider, part outsider. I had never participated in any political process or candidacy before I sought my party's endorsement to run as one of its candidates for Justice of the Supreme Court. The delegates focused on the candidates' presentations and made their judgments based on their interactions with the candidates and their view of the candidates.
27. Would you recuse yourself if a campaign contributor were involved in litigation as a party or attorney before you?
I would have to consider this question in light of the facts and in light of Canon 3(C). I discuss this question in more detail in my response to question No. 28 in this section. I enjoy a broad base of support all over the Commonwealth over a broad spectrum of the population. I have and will have contributions in the single digit dollars and those in larger ranges. I would not set a black and white rule now that I would recuse myself from any case in which a person who contributed to my campaign were involved as a party or an attorney before me.
28. In general, under what circumstances would you recuse yourself from a case?
Recusal is governed by Canon 3(C) of the Code of Judicial Conduct and whether a judge ought to recuse himself or herself would depend upon the facts of each case and an application of that Canon. The Pennsylvania Supreme Court has noted that "recusal is matter of individual discretion or conscience and only the jurist being asked to recuse himself or herself may properly respond to such a request." Commonwealth v. Jones, 663 A.2d 142 (Pa. 1995). Moreover, while a judge must disqualify himself or herself under appropriate circumstances, the judge has an affirmative duty to preside in the absence of such circumstances. Welch v. Board of Directors of Wildwood Golf Club, 918 F. Supp. 134 (W.D. Pa. 1996).
That affirmative duty to preside is even greater at the Supreme Court level than at the lower court level. It is well recognized that recusal of Supreme Court Justice from a case stands on a different footing than recusal of a judge in a lower court. In a lower court, there is always a substitute judge who fill the recused judge's role. Not so on the Supreme Court where the absence of one Justice can have a dramatic impact on the Court's decision-making process. At the Supreme Court, a tie vote would render it unable to resolve important issues. Moreover, from the perspective of an appellant, who needs four votes to overturn a judgment below, a recusal is equal to a vote against the petitioner. As Justice Scalia has said in similar circumstances, "it makes no difference whether the needed [fourth] vote is missing because it has been cast for the other side, or because it has not been cast at all." Cheney v. United States, 541 U.S. 913, 915-16; 124 S. Ct. 1391, 1394; 158 L. Ed. 2d 225, 230-31 (2004).
I have been twice asked to recuse myself and I granted one request and denied the other. The first case was Ferino v. DEP, 2001 EHB 531 (issued May 23, 2001). In that case, counsel for the appellant had mentioned theamount of a settlement proposal during the course of a case management conference. The Department asked for my recusal based on Canon 3(C)(1)(a)(personal bias or knowledge of disputed evidentiary facts). I denied the request per written opinion analyzing the Canon and its application in that case. The case is reported and available on my court's website at http://ehb.courtapps.com. The other matter was Southwest Delaware County Municipal Authority v. DEP, EHB Docket No. 2002-255-L. In that matter, I had advised all parties that my immediate family was friendly with the brother, sister-in-law and school aged niece of a member of the Board of Directors of the appellant. The matter was before me in the posture of the appellant asking for an injunction and I decided to recuse myself from that matter. I said from the bench that:
"I do not want any impression by anyone, counsel, parties that [an adverse result on the injunction request] had any connection whatsoever to the fact that my daughter, first-grade daughter, plays with [the Board member's] first-grade niece. Institutionally, that would be detrimental to the Board¿no matter how inappropriate such a conclusion might be, the fact that there could be that perception out there is enough to indicate to me that the wise thing to do¿is step away and allow the case to proceed with another judge."
Upon that ruling, the attorney who filed the motion to recuse me said this on the record, "I appreciate your ruling. I want to indicate on the record that in no way am I challenging or questioning your integrity. As a matter of fact, I think what you have demonstrated reaffirms my sense of your integrity."
29. To whom or what are judges accountable?
I have always viewed that in my job as a judge I am accountable to all the citizens of Pennsylvania, whom I regard as my bosses. I have always said and I have always believed that I am a public servant who has 12.5 million bosses.
30. What does "independence of the judiciary" mean to you?
Judicial independence means separation of the judiciary from interaction with parties and advocates in cases before them outside of on-the-record interactions. It also means separation from interaction with members of other branches of government except in a public forum under public scrutiny. Independence also means the courage to do what is right even if that course runs counter to the agendas of the other branches of government. To sum up, it means making decisions based on the law and facts and record of the case before you, independent of any outside influence or consideration.
Hamilton in Federalist No. 78 sets forth a very good explanation of judicial independence and the virtue thereof in Constitutional government. In a Constitutional government, he writes, the acts of the executive and/or the legislature cannot exceed the power delegated thereto by the people through the Constitution. Thus, "complete independence of the courts of justice is peculiarly essential in a limited Constitution" since a primary function of the judiciary is to be the "barrier" to the despotism of the prince and to the "encroachments and oppressions of the representative body." The courts, writes Hamilton, "are to be considered the bulwarks of a limited Constitution against the legislative encroachments." In my view Hamilton is talking about "independence" of the judiciary in the manner I described in the prior paragraph. In order that the courts are able to properly serve their critical function of being a "barrier" and a "bulwark" against Constitutional excesses by the other branches the members of the courts must not engage in interactions with the members of the other branches regarding their respective business outside of public on the record interaction for recognized appropriate purposes.
31. How would you define a "threat to judicial independence?" And where are these threats coming from?
Threats to judicial independence are nothing new in our republic and they have come from all sources. Even before our Constitution, as I noted before, Alexander Hamilton wrote about judicial independence and the threat thereto and concomitant necessity to provide therefore in Federalist No. 78. Hamilton and the Founders perceived that the greatest threat to judicial independence and to liberty itself came from the Legislative branch which they perceived as the strongest branch and the one most susceptible to mischief. Threats have come from the Chief Executive as well. One will remember from our history books President Roosevelt's effort to "pack the Court." Today, we see that certain members of the public calling for impeachment of judges for unpopular rulings. Much more troublesome, of course, is the recent violence directed toward judges or their families as we have seen in Chicago with Judge Lefkow and in Atlanta with Judge Barnes. Threats from other branches are one thing and can be considered par for the course in our democracy but threats of that nature are certainly another.
32. What is the biggest misunderstanding between judges and the general public?
I have heard Superior Court Judge Michael Joyce say that judges are ordinary people with extraordinary jobs. I agree but I think some judges sometimes contribute to the public's perception that judges fancy themselves as not ordinary people and this fosters an attitude of alienation between the people and their judges.
Also, Hamilton noted in Federalist No. 15 that "[p]ower controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged." Judges have certain enumerated powers under our Constitution but, at the same time, that power is controlled or abridged (i.e., limited) by the Constitution. Indeed, the residual power is with the people as clearly spelled out in Article 1, Section 2 which provides that "all power is inherent in the people." Thus, we see Hamilton's injunction in Federalist No. 15 at work. There is a natural tension, or rivalry to use Hamilton's words, between the power of the judiciary which power is controlled and abridged by that of the people. This tension is exacerbated by a few unfortunate situations which have been made part of the public consciousness.
It is up to each one of us as judges to remember that "all power is inherent in the people" and that the power of the judiciary is derivative of the people and granted by them. It is also up to each one of us to remain connected and remain statesmen and stateswomen as Alexis de Tocqueville described in the passage from his Democracy in America that I referred to earlier.
