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Late last month, Gov. Edward G. Rendell nominated former Pennsylvania Commonwealth Court President Judge James Gardner Colins to fill the remaining vacancy on the Pennsylvania Supreme Court until January 2010, when a duly elected justice will assume that spot on Pennsylvania’s highest court.

One of the objections to the Colins nomination that I saw reported in the popular media was that he would be required to recuse from participating in too many cases because he served on the Commonwealth Court. The Commonwealth Court, of course, is one of Pennsylvania’s two intermediate appellate courts. The vast majority of the cases that the state Supreme Court decides reach that court from either the Commonwealth Court or the Superior Court, this state’s other intermediate appellate court.

The objection that Colins might have to recuse from deciding a large number of cases if confirmed to the Supreme Court struck me as an interesting objection, given that three of the four major party candidates for the two Supreme Court vacancies that the electorate filled in November 2007 served as judges on the Superior Court. Indeed, in that election, Pennsylvania voters chose two Superior Court judges to join the Supreme Court, where those two individuals have been serving as justices since early 2008.

I do not recall having heard once during the campaigns that culminated in the November 2007 general election that the three candidates to fill those vacancies, who were then serving on the Superior Court, should be rejected because they might have to recuse from too many cases if elected to serve on Pennsylvania’s highest court.

Unfortunately, the rules and considerations governing the recusal of justices serving on Pennsylvania’s highest court are not well- known. Nevertheless, as I shall explain, I do not consider the recusal-related objection to Rendell’s appointment of Colins to be persuasive. But even if that objection were persuasive, Pennsylvania’s Legislature, working together with the Judicial Branch, has the ability to ensure that recusals by justices serving on Pennsylvania’s highest court do not diminish the number of jurists available to decide cases in which the Supreme Court has granted review.

At the outset, it is worth noting the irony surrounding the Republican legislative reaction to Rendell’s nomination of Colins to the Supreme Court. The provisions of Pennsylvania law that permit the governor to nominate and the state Senate to confirm individuals to fill vacancies on Pennsylvania’s appellate courts until the next regularly scheduled judicial election occurs represent a microcosm of the “merit selection” process that opponents of judicial elections would vastly prefer to see used to fill all judicial vacancies.

The Colins nomination illustrates nicely that the merit selection process to fill judicial vacancies can be as political, if not more political, than the current system of electing appellate judges. And at the federal system, where a similar type of merit selection process has been in place since adoption of the U.S. Constitution, there are some federal appellate courts that have a staggering number of vacancies because of the U.S. Senate’s refusal to provide up-or-down votes for President Bush’s nominees. Regardless of the flaws inherent in electing Pennsylvania’s appellate judiciary, elections are guaranteed to fill vacancies, while the merit selection nomination and confirmation process often fails to accomplish that goal.

Turning now to the issue of appellate recusal, it is well-established that a trial court judge who is promoted to an intermediate appellate court should not hear appeals from decisions that he or she issued as a trial judge. In the federal system, that basis for recusal is found in a federal statute. Similarly, if a judge who served on an intermediate appellate court is promoted to the jurisdiction’s highest court, he or she should not hear and decide appeals from decisions issued by intermediate appellate court panels on which he or she served.

Most intermediate appellate court rulings are issued by three-judge panels. Far less frequently, intermediate appellate courts hear cases en banc before a larger group of judges. My point is that if a state Supreme Court judge was on the three-judge Superior Court panel or the three-judge Commonwealth Court panel that decided a case that is now before the Supreme Court for review, he or she should recuse from hearing or deciding that case as a Supreme Court justice. And the same need to recuse would exist, in my view, if the Superior Court or the Commonwealth Court had heard and decided the case on the merits after having granted en banc review and the judge in question served on the en banc panel whose ruling is now before the Supreme Court for consideration.

Thus, in my view, if a Supreme Court justice served on a panel of the Pennsylvania intermediate appellate court that issued a reasoned decision in the case, the justice should recuse from hearing and deciding that very case if it comes before the Supreme Court for review. Beyond that narrow category of cases, however, I would not require recusal.

Consider hypothetically the situation of Justice Smith, newly elected to the Supreme Court. This hypothetical jurist, for purposes of this example, served on the Superior Court before joining Pennsylvania’s highest court. Let’s assume that the Superior Court decides a case by means of a three-judge panel on which Judge Smith did not serve. The losing party then files an application for re-argument, which is denied in a manner that does not reveal any judge’s vote on the re-argument request. Judge Smith was among the Superior Court judges entitled to consider and vote on the question of re-argument, but her vote on that re-argument request was not made public by that court. Under these circumstances, I would not conclude that Judge Smith would need to recuse from hearing and deciding this very case if Supreme Court review were sought.

Next, consider the hypothetical case of Judge Jones, who has been nominated to the state Supreme Court after having recently retired from the Commonwealth Court. The Commonwealth Court, it is well-known, has a policy of internally circulating all proposed precedential rulings of three-judge panels to all other commissioned judges for review and comment before the rulings are formally issued. That pre-issuance review allows judges who are not on the panel to request changes to any opinions that may conflict with existing Commonwealth Court law, and it also gives the judges an opportunity to vote in favor of re-argument en banc before the three-judge panel’s opinion becomes available to the public. If a majority of the judges vote for re-argument en banc at that juncture, the case will be re-argued en banc even though the original three-judge panel’s opinion had never been issued to the parties or the public.

Although this form of pre-issuance review of three-judge Commonwealth Court rulings allows a nonpanel judge to become quite intimately involved in the outcome of a case, that involvement is completely shielded from the public’s view. Moreover, in actuality, that level of detailed involvement arises quite rarely, if ever, and can only influence the outcome of a case if at least a majority of the three judges who are on the panel are willing to yield to the suggestions of the nonpanel judge.

Simply because the Commonwealth Court has the practice of internally circulating all precedential rulings to all commissioned judges before they are publicly issued would not, in my view, require Judge Jones in our hypothetical case to recuse from hearing cases on the Supreme Court that had been decided by Commonwealth Court panels on which he was not sitting.

Last but not least, this entire recusal issue would greatly diminish in importance if Pennsylvania adopted the remedy that many of the surrounding states use when a judge serving on the state’s highest court is forced to recuse. What those other states do in that circumstance is select a replacement judge from an intermediate appellate court to fill in on a case-specific basis when a judge on the state’s highest court must recuse. This ensures that the usual number of judges on the state’s highest court remains available to hear and decide a case even if one or more of the judges on the highest court cannot personally remain involved because of the need to recuse.

Rendell was on notice when he chose Colins to fill the remaining Supreme Court vacancy that a political tussle would result. But the objection that Colins should be rejected because he might need to recuse from deciding too many cases strikes me as unpersuasive. Moreover, Pennsylvania could eliminate that concern once and for all by adopting a system that many other states use whereby recused judges on the state’s highest court can be replaced by nonrecused judges from one of the state’s intermediate appellate courts.

HOWARD J. BASHMAN operates an appellate litigation boutique in WillowGrove, Pa., and can be reached by telephone at215-830-1458 and via email at [email protected]. You can access his appellate Web log athttp://howappealing.law.com.

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