How Will Changes in Membership on Pa.'s Appellate Courts Affect You?

Last month, Pennsylvania voters elected two new justices to serve on the Supreme Court of Pennsylvania and three new judges to serve on the Pennsylvania Superior Court. In January 2008, those individuals will begin to serve on the courts to which they have been elected.

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Last month, Pennsylvania voters elected two new justices to serve on the Supreme Court of Pennsylvania and three new judges to serve on the Pennsylvania Superior Court. In January 2008, those individuals will begin to serve on the courts to which they have been elected.

Simultaneously, three justices on Pennsylvania’s highest court, including the chief justice, will step down from serving on that court. And six judges, including one highly productive senior judge, will step down from serving on the Superior Court.

When all is said and done, the result will be a Supreme Court with a new chief justice, two new justices and one vacancy, meaning that only six justices will be present to perform that court’s work until Gov. Edward G.

Rendell and Pennsylvania’s state Senate nominate and confirm someone to serve out the next two years in Chief Justice Ralph J.

Cappy’s term before a judicial election can occur in 2009.

Moreover, because the two new Supreme Court justices currently serve on the Superior Court, the Superior Court will start the new year with only 13 of its 15 authorized commissioned judges, in addition to losing Senior Judge Justin M. Johnson to retirement.

Because only four of the seven currently serving justices on the Supreme Court will remain on that court as of next month, we can expect to see in the short term an increased flow of opinions in argued cases as the court rushes to issue decisions in cases that have already been argued. Pennsylvania’s highest court generally follows what I consider to be the quite sensible rule of only allowing those justices who were present for oral argument to participate in deciding a case on the merits.

Argued cases for which there are now six or seven justices participating will, as of January, have only four justices participating.

A unanimous decision by a four-justice panel would at least constitute a majority of the seven-justice court, whereas a 3-1 ruling could present the prospect of reaching a result that would lack the support of the court at full strength. And that’s why I expect to see Pennsylvania’s highest court try to issue decisions in as many pending but undecided argued cases as possible before year’s end.

Another very important aspect of the Supreme Court’s work is deciding which cases to hear on the merits. In common with the U.S. Supreme Court, much of the state Supreme Court’s merits caseload consists of cases in which the court has exercised its discretion to grant review. Given the upcoming significant turnover in the court’s membership, it is possible that the Supreme Court is now deferring a decision on difficult petitions for allowance of appeal until the new year. Unfortunately, come 2008, Pennsylvania’s highest court will initially only have six justices, and it is more difficult simply as a matter of mathematics to assemble the votes needed for discretionary review from just six justices than it would be from the current crop of seven justices.

It also promises to be a very busy December for the judges serving on the Superior Court, which already qualifies based on its caseload and number of judges as one of the busiest appellate courts in the nation. In addition to Johnson’s upcoming departure, Judge Michael T. Joyce – who stopped performing judicial work earlier this year – will officially depart from the court, as will Judge Robert C. Daniels. And Judges Debra Todd and Seamus P. McCaffery will both be leaving the Superior Court to head “upstairs” to become justices on the Supreme Court. You can be sure that each of these judges, along with their colleagues who will remain on the Superior Court next year, are now working harder than ever to get as many of their unresolved cases decided before year’s end.

Regardless of the many valid criticisms that can be directed toward judicial elections, Pennsylvania’s voters made two outstanding choices in deciding to promote Todd and McCaffery to Pennsylvania’s highest court. I have been particularly impressed with the quality of the written opinions that McCaffery has issued while serving on the Superior Court. A while back, before he announced his candidacy for the high court, I visited with McCaffery in chambers, and he graciously attributed the quality of his written decisions to the highly credentialed law clerks he endeavors to hire.

I look forward to reading many more wellwritten, easy-to-understand and tightly reasoned decisions from him in the years to come.

Cappy’s surprise announcement that he is leaving the Supreme Court at the end of 2007 will unfortunately cause that court to start 2008 with only six justices. An even number of justices increases the possibility of 3-3 ties in deciding the merits of cases. In the past, the Supreme Court has nevertheless written full-blown decisions in those 3-3 tie cases. I hope, in the future, the court instead decides to save time and effort by simply issuing a one-line order stating that the result below is affirmed by an evenly divided court.

Todd and McCaffery, once they join the Supreme Court, may at the outset of their tenure on the court find many instances where they will need to recuse based on their involvement in the case while it was pending before the Superior Court. For example, if either of them served on a three-judge Superior Court panel that decided a case, and then the case came for review before the Supreme Court, they would need to recuse from participation. A more difficult question would be presented if their only involvement was as a Superior Court nonpanel member in deciding whether to grant a petition for reargument, but even then a persuasive case could be made in favor of recusing at the Supreme Court.

Of the three new judges who will be joining the Superior Court in January, two will be joining the judiciary from the private practice of law, while the third currently serves as a common pleas court judge in Pittsburgh.

Because of the Superior Court’s incredibly burdensome caseload, I’m certain that joining the Superior Court presents quite a challenge at the outset. Notwithstanding their caseload, I am always impressed with the level of understanding of the cases that Superior Court judges evidence at oral argument.

I wish these three new Superior Court judges all the best as they embark in their common endeavor to decide cases correctly, in a well-reasoned manner and also expeditiously.

I also hope that the Superior Court can quickly obtain help from two more judges as it will start the year with only 13 commissioned judges on a court authorized to have 15 commissioned judges.

A new year is always an exciting time, and 2008 certainly promises to be exciting for watchers of Pennsylvania’s appellate courts. •

HOWARD J. BASHMAN operateshis own appellate litigation boutique in Willow Grove, Pa., and can be reached bytelephone at 215-830-1458 and via e-mail [email protected] You can access his appellate Web log at http://appellateblog.com/.

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