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Juanita Kidd Stout
Juanita Kidd Stout
Justice of the Supreme Court of Pennsylvania
	In office; 1988–1989

Commonwealth of Pennsylvania
Use	Civil and state flag
Proportion	2:3
Adopted	1907; 117 years ago
Design	Coat of Arms of Pennsylvania on a blue field
Standard of the Governor of Pennsylvania
Design	Coat of Arms of Pennsylvania on a white field, with two banners above and below

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#REDIRECT Judicial Elections in Pennsylvania

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Pennsylvania is one of just seven states to hold partisan elections. This has not always been the case in the Commonwealth, and certain advantages and disadvantages are emerging due to its evolution on the issue. The state’s judicial system is one that has both unique features, and those which closely resemble the federal judiciary. The idea and process of judicial election is relatively new within the United States, and continues to be a hotly-contested issue across the political spectrum.

History

The first state constitution was created in 1776, shortly after the country declared its independence from Great Britain. After heated debate over the issue, it was decided that the Pennsylvania governor will appoint state judges and justices. They would serve seven years, and could be replaced at any time for “misbehavior” or “maladministration.” After the seven years, they could be positioned at the same previously-held post, or replaced, depending on the wishes of the governor. In the age of President Andrew Jackson (1829-1837), there was a movement within the state, and country, that all government positions should be held accountable to the will of the people, i.e. the voters. During a Pennsylvania Constitutional Convention, there were more talks about going to an elected judiciary [1]. However, it did not have enough votes to make any substantial change; the tenure for Supreme Court Justices was reduced, though, from life to fifteen years. This would mark the first step in creating concrete judicial change within the Commonwealth. In the year of 1850, the members of the General Assembly put forth legislation to go to an elected judiciary. The “election versus appointment” battle raged on within the state. It would not pass for another twenty years. At the 1872 Constitutional Convention, there was considerable pushback from the advocates of the appointment system, and so no legislation passed which revoked the governor’s ability to fill vacancies on any bench. Instead, a compromise was reached – the term for Supreme Court Justices was increased from fifteen years to twenty-one years, but it was made illegal to serve more than one term. Therefore, every justice appointed would be in for two decades, then replaced. Almost a century later, at the Constitutional Convention of 1967, the issue erupted again. This time, however, the advocates of judicial elections were far more abundant. The result was to insert in the 1968 primary election a new judicial article which retained partisan election of judges [2]. The article passed, with the winning side claiming victory, and the losing side claiming that the language of the article confused voters, so they did not know what they were voting for. Because of this, there was another state-wide vote that spring, in which the results were much closer, but still held that people wanted to elect their judges rather than having the governor appoint them. Pennsylvania has held this change through present times, being one of only seven states to have partisan elections. These elections apply to every level of the state judiciary. In some states, only the low offices are elected and the high offices are still appointed. Pennsylvanians in 1968 believed that they wanted complete control of the entire judiciary, and therefore elect every level.

Pennsylvania Judicial System

The judiciary of Pennsylvania can be found in Article V of the State Constitution [3]. It established a pyramid-like structure for courts – closely resembling the federal court system laid out in the U.S. Constitution: three main levels, called the Supreme Court, Superior Court, and Commonwealth Court. It states that all courts are to be “united” for the common good. Although different levels may disagree, they respect each other’s jurisdiction, and different judges and justices respect each other’s authority and honor. The highest level is the Supreme Court. This court consists of seven justices, with the Chief Justice presiding over the chamber. All justices are held accountable to the Chief Justice, but they are free to disagree with him/her at any time. The middle level of the system is the Superior Court. This court is superior to the Commonwealth Court, but subservient to the Supreme Court. Superior Courts are statewide, and the number of courts and judges are established by law originating from the General Assembly in Harrisburg; however, there is a minimum of seven judges required at each superior court. The head, or leader, of each Superior Court is the President Judge – the others are simply referred to as judges. Like the Supreme Court level, the President Judge resides over the court, and seated at the center, but has no special powers over the others. The lower level is the Commonwealth Court. This court is also statewide, and follows similar procedures as the Superior Court. At each Commonwealth Court, there is a President Judge, following the precedents of its higher level. This court is subservient to both the Supreme Court and Superior Court. Before entering the main court system, usually people have to pass through the Court of Common Pleas, a smaller-scale Commonwealth court. One of these exist for every judicial district. They have the same rules as their superiors regarding the number of courts and judges, but are granted the privilege of “original jurisdiction” in all cases. There are a series of smaller courts, such as community courts, municipal courts, and traffic courts. These exist because the government wants only serious matters within the main court system. If every defendant went to the Commonwealth court for a speeding ticket, the judicial system would become overcrowded and the system would be rendered stagnant. Individuals in Pennsylvania are given the right of appeal. Therefore, if a case is decided in the Commonwealth Court, but not liked by the defendant, he has the right to appeal it to the Superior Court, who will either agree to hear it, or deny appeal. The same process can be used to appeal to the Supreme Court. Once a decision is made at the Supreme Court, it is final, and can only be overridden by the United States Supreme Court.

Judicial Elections

The process behind how judges are elected can be a strenuous and intricate one. Before judges and Justices can be elected, they must meet certain basic requirements, such as residency and citizenship [4]. Firstly, all judges (excluding magisterial district judges) have to be a member of the Pennsylvania Bar Association. Elections occur in odd numbered years, the most recent being in 2017. Every judge can run for reelection until they reach the mandatory retirement age of 75. If there is a vacancy, due to death or retirement, it is filled by gubernatorial appointment until there is another election. For the Supreme Court, Superior Court, Commonwealth Court, and Court of Common Pleas, there is 10-year term. For Magisterial District courts and Municipal courts, judges serve a 6-year term. Each aspiring judge runs with their political party listed on the ballot, but after victory the party affiliation is erased from his/her name to prevent against political pressures [5]. The longest-serving judge/justice in the main three judicial levels is usually Chief Justice or President Judge.

Advantages/Disadvantages to Electing Judges

There are a few main benefits to electing judges, which is why the majority of the populous in 1968 voted for it. Firstly, the country was founded on the principle of equality between the classes – even the rich must adhere to law. The backbone of this principle is that all government officials must be held accountable to the people. With the election of judges, the people are in more control of their government. If the governor is corrupted, for example, the people can bypass him and elect their own law interpreters. Another benefit is the equality of the sexes, and ability for women to hold judicial seats. Due to Pennsylvania having an overwhelming number of male governors, there were little to no women in the court system. With the change in 1968, however, more women became involved in the judiciary by way of election [6]. The people of Pennsylvania are far more likely to elect women to serve as judges and justices than male governors were to appoint them. By the numbers, conservative governors never chose women to be judges, and more liberal ones appointed women about 30% of the time. In recent times, however, more than 28% of judicial seats in the Commonwealth are held by women [7]. It is clear that electing judges, at least in Pennsylvania, as the trend illustrates, is allowing more women to become involved in the judicial process. The people of Pennsylvania have more say in their judicial process, which exists solely to represent equal justice under the law, and women have greater opportunity to serve in their government, as a result of judicial elections. Although there is criticism from the other side, there has been considerable benefits to this election process.

The two main disadvantages often argued to counter the affirmative viewpoint is the palpable corruption within the Pennsylvania judicial system, and the problems which arise from integrating politics and law, which the State Founders warned against [8]. Firstly, the corruption has been abundant and clearly visible within the state. Three separate judges, all having been elected to the Court of Common Pleas, have been involved in scandals while in office, and that is just in the past ten years alone (one term) [9]. All have been prosecuted in federal court, with charges ranging from bribery to the artifice to defraud [10]. Since 1968, there have been more than forty cases of this same behavior and activity from judges all across the state. There were minimal corruption cases while the governor still held the power to appoint. This growing rate of corruption is alarming to many, especially legislators in Harrisburg.

Another problem is the mixing of politics and law. Massive amounts of money are being spent on these races, which reinforces the notion that these positions are actually political and not so much purely legal[11]. During the 2015 Supreme Court elections, more than $15 million was raised and spent trying to advertise the candidates to the population, despite the low voting rate for judicial elections in the state [12]. Because these candidates run as either Republican or Democrat, they also get help from PACs; in 2008-2009, about $2.9 million was spent by PACs on Supreme Court elections[13]. The reason this is seen to be troubling is as follows: the majority of the civil cases heard by the PA Supreme Court, 49 of 82, involved at least one person who had contributed money to help an active Justice get elected. In most of these cases, there has been recorded bias against certain justices. Therefore, there is realistic fear that judges within the state will be giving “breaks” and “political favors” to plaintiffs or defendants who gave them financial help when they were running for election.

Possible Future Revisions

There have been many factions in Pennsylvania that continue to push for reverting back to an appointment system for judges. The increasing political emphasis on these elections, as well as the cases of corruption, are beginning to sway the population that the old system was both better for the state and more efficient. There are also talks of subsequently increasing term lengths, reducing judge salary, requiring more formal education, and abolishing the retirement requirement for age 75 [14]. Currently, members of the General Assembly have written House Bill 111, an amendment to the state constitution which would institute the original system of appointing judges, as defined in the 1780’s State Constitution. This bill has yet to be passed by the House, and has not been introduced at all in the Senate. Congressional leaders are claiming that Harrisburg is where “ideas go to die,” and that the only way to break ground on this issue would be to call another state constitutional convention, which is unlikely to happen. The percentage of the population wanting judicial change is on the rise, however, and a change could be eminent.

References