by: Jamie Inferrera, Staff Writer
In the most recent election in Pennsylvania, voter turnout was abysmal. Pennsylvania has over 8 million voters and fewer than one million votes were cast this November. While the ballots were primarily made up of local candidates, two state Supreme Court justices and two Superior Court judges also appeared on the ballot for retention voting.
“Most voters don’t pay any attention to these elections at all,” said Dr. G. Terry Madonna, a public affairs professor at Franklin & Marshall College. “Most voters know precious nothing about these candidates.”
In Pennsylvania, once a judge is elected to serve on the state bench, the judge is permitted to serve an indefinite number of terms until age 70, so long as the judge is successfully retained at the polls. For Pennsylvania’s appellate court judges and Court of Common Pleas judges, a retention vote happens once every 10 years.
The provision pertaining to the retention of judges was added as an amendment to the Pennsylvania Constitution through the 1967-68 Constitutional Convention. The delegates to the Convention overhauled the judiciary article of the state constitution, creating a unified judicial system and providing for the election and retention of judges versus a merit system of selection.
In the recent election, state Supreme Court Chief Justice Ron Castille was easily retained to the bench with 68 percent of the vote. Similarly, state Supreme Court Justice Max Baer was retained with 70 percent of the vote. At the Superior Court level, both candidates were retained, each receiving an affirming retention vote of 69 percent.
“It takes some overriding issue,” Madonna said when asked about the likelihood of a judge not being retained. Since the retention provision was added to the Pennsylvania Constitution, only one judge has been removed from the bench through the ballot box. State Supreme Court Justice Russell Nigro was ousted in 2005 after the controversial “midnight pay raise” debacle where the General Assembly voted to increase the salaries of legislators, judges, and top executive branch officials. Due to public outcry, the General Assembly repealed the legislation. However, the state Supreme Court ruled that it could keep the salary increase.
Now, nearly 45 years after the Constitutional Convention, two state House members are pushing for a change in the manner which Pennsylvania selects its judges. State Representative Bryan Cutler (R-Lancaster) and State Representative Brian Sims (D-Philadelphia) have introduced House Bill 1848, bipartisan legislation to create a “hybrid elective-appointive system” for Pennsylvania judges. This legislative change would only apply to Pennsylvania’s three statewide appellate courts: Supreme, Superior, and Commonwealth Courts.
The legislation would create a 15 person bipartisan nominating commission, with eight appointments by the General Assembly, six appointments by the Governor, and one appointment by the Attorney General. Those who would be prohibited from sitting on the bipartisan nominating commission include: registered lobbyists, elected or appointed officials, officers in any political party or organization, and staff and family members of the appointers.
Members of the commission would recommend a “short list” of candidates to the governor for nomination. The state Senate would confirm the candidates. The judges would then sit for a short term before standing for a non-partisan retention vote.
“It would change from the completely partisan election system that we currently have to this hybrid model where we would have individuals evaluate them on their merits,” said Representative Cutler in video comments posted after a press conference held earlier this month.
At the press conference, Representative Sims noted that Pennsylvania is one of only six states in the country that elects all of its judges through bipartisan elections. “We get better judiciaries, we get more diverse judiciaries, in states that have merit selection,” Representative Sims said.
House Bill 1848 is a proposed amendment to the Pennsylvania Constitution. In order for this legislation to take effect, it must be passed through the General Assembly during two consecutive legislative sessions and then placed on the ballot for voter referendum. The choice to change the way Pennsylvania selects it judges is ultimately left to the voters of the Commonwealth to decide.
Legislation to change Pennsylvania’s approach in choosing judges is not a new proposal in Harrisburg. Madonna noted that there seems to be a renewed interest in merit selection of judges, which may be attributed to recent controversies in the courts, specifically the state Supreme Court.
A press release announcing the introduction of House Bill 1848 noted that Pennsylvania’s governors from the past 18 years, including Governor Tom Corbett, support merit selection of judges.
In addition to Representative Cutler and Representative Sims, House Bill has 23 co-sponsors. Organizations supporting this constitutional change include: Pennsylvanians for Modern Courts, the League of Women Voters of Pennsylvania, and the Pennsylvania Bar Association.
A copy of House Bill 1848 is available on the Pennsylvania General Assembly’s website and can be viewed here.
