In the Supreme Court of Pennsylvania Middle District ______Docket No
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Received 2/5/2018 9:39:17 AM Supreme Court Middle District Filed 2/5/2018 9:39:00 AM Supreme Court Middle District 159 MM 2017 IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT _________________________________________________________________ DOCKET NO. 159 MM 2017 _________________________________________________________________ LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL., Petitioners, v. THE COMMONWEALTH OF PENNSYLVANIA, ET AL., Respondents. __________________________________________________________________ ANSWER OF RESPONDENT, LT. GOVERNOR MICHAEL J. STACK, III TO APPLICATION FOR DISQUALIFICATION OF JUSTICE DAVID WECHT AND FOR FULL DISCLOSURE BY JUSTICE CHRISTINE DONOHUE __________________________________________________________________ Clifford B. Levine Pa. Id. No. 33507 Alex M. Lacey Pa. Id. No. 313538 Alice B. Mitinger Pa. Id. No. 56781 Cohen & Grigsby, P.C. 625 Liberty Avenue Pittsburgh, PA 15222-3152 (412) 297-4900 Lazar M. Palnick Pa. Id. No. 52762 1216 Heberton Street Pittsburgh, PA 15206 (412) 661-3633 On behalf of Respondent Michael J. Stack III, in his Capacity as Lieutenant Governor of Pennsylvania and President of the Pennsylvania Senate I. INTRODUCTION With its majority decision, this Court has held that the 2011 Plan “plainly, clearly and palpably” violates the Pennsylvania Constitution. All parties, including the Legislative Respondents, exhaustively briefed the issues associated with a constitutional challenge to the gerrymandered congressional map, which was created with obvious partisan intent. This Court conducted an extraordinary session for oral argument, which lasted for over three hours, and thoroughly discussed the issues involved in the challenge. Now, after the Court has rendered its decision, the Legislative Respondents seek disqualification of Justice David Wecht and “full disclosure” from Justice Christine Donohue. Their demand is untimely and should be summarily dismissed. It impugns the integrity not just of the two targeted Justices, but of this entire Court. With their less than credible claims of newly discovered information about the two Justices, the Legislative Respondents obfuscate this Court’s unique responsibility, as established in the Pennsylvania Constitution, to select the fifth member of the constitutionally-mandated Legislative Reapportionment Commission (the “Commission”). The Legislative Respondents cite incomplete quotations from Justices Wecht and Donohue, from which they have removed any contextual references to that Commission. Their apparent intent is to create a basis for challenging any Justice who has participated in public elections, as the Pennsylvania Constitution mandates for all Justices. The Application of the Legislative Respondents must be rejected. II. FACTUAL AND PROCEDURAL BACKGROUND A. Constitutional Considerations Regarding Redistricting Play A Significant Role in Pennsylvania’s Judicial Elections In 2015, the citizens of Pennsylvania elected Justices David Wecht, Christine Donohue and Kevin Dougherty to the Pennsylvania Supreme Court. The Pennsylvania Constitution provides for partisan elections of Pennsylvania Supreme Court Justices. Pa. Const. art. V, § 13. These three Justices ran against three Republican candidates and one independent candidate. Pennsylvania’s Code of Judicial Conduct permits judicial candidates to campaign and comment on issues generally. See Code of Judicial Conduct, generally; Republican Party of Minn. v. White, 536 U.S. 765 (2002). In addition to its judicial function set forth in the Pennsylvania Constitution (see art. V, generally), the Pennsylvania Supreme Court performs a unique, non- judicial role. Every ten years, it must select the fifth member of the Pennsylvania Reapportionment Commission, which is otherwise evenly divided between 2 Democratic and Republican leaders from the Pennsylvania House and Senate. Pa. Const. art. II, § 17.1 Since its creation with the Pennsylvania Constitution of 1968, the Commission has executed a fundamental and distinctive power of the Commonwealth. Every ten years it must redraw the boundaries of the legislative districts of the Pennsylvania State Senate and the Pennsylvania House of Representatives to reflect population changes. Id. In Holt v. 2011 Legislative Reapportionment Comm’n, 38 A.3d 711, 734-36 (Pa. 2011), this Court explained that the 1968 Pennsylvania Constitutional Convention chose to adopt a new method for the decennial redrawing of state legislative districts: redistricting for the General Assembly would be undertaken by the Commission, which would include a “neutral” fifth member, typically serving as the Chair. The Court characterized the Commission as a “hybrid body” and distinguished the Court’s role in selecting the “tie-breaking” member and its potential role in adjudicating any appeal from the determination of the Commission. The Court noted that the Court had a judicial role “if, and only if, a citizen or citizens file an appeal from the Final Plan.” Id. at 736, citing Pa. Const. art. II, § 17 (d)-(e). 1 The other four members of the Commission may agree on a Chair among themselves, without the Pennsylvania Supreme Court’s appointment. Pa. Const. art. II, § 17. However, since the promulgation of the 1968 Pennsylvania Constitution, this Court has selected the Chair for all reapportionments, except the 1981 reapportionment. 3 The Holt decision represented the first time since the creation of the Commission format in which this Court reversed the Final Plans that the Commission developed for both the House and Senate. This sparked additional litigation in both the federal and state courts,2 and general public awareness as to the impact the chair could have in the process and the recognition that a final plan must adhere to constitutional standards. B. Legislative Respondents And Their Counsel Are Well Versed In The Redistricting Process, Generally, And Are, Specifically, Well Aware Of The Supreme Court’s Role In That Process Respondents Turzai and Scarnati have held their senior positions in Pennsylvania government and the Pennsylvania Republican Party since before 2015 and continue in those roles today. Their counsel, Kathleen Gallagher and Brian Paszamant, represented the Republican leaders in the Holt litigation and in the associated federal cases regarding the 2011 reapportionment of Pennsylvania’s state districts.3 C. As Candidates, The Now Elected Supreme Court Justices Have Made Appropriate Comments About The Redistricting Process In the 2015 judicial elections, then-candidates Wecht and Donohue, spoke about how gerrymandering is problematic, but preventable, with the selection of an 2 See Holt v. 2011 Legislative Reapportionment Comm’n, 67 A.3d 1211 (Pa. 2013) (“Holt II”); Pileggi v. Aichele, 843 F. Supp.2d 584 (E.D. Pa. 2012). 3 Respondent Turzai served on the 2011 Commission and was a party in the ensuing litigation. 4 appropriate Chair for the Commission. Their comments were made specifically in the context of the Pennsylvania Supreme Court’s non-judicial role of appointing the Chair, and deciding vote, of the Commission. The Legislative Respondents point to several comments that Justice Wecht made during the campaign but failed to provide full quotations that demonstrate the context in which the comments were made. The Legislative Respondents obviously understand the Court’s unique function with respect to the Commission, because they consistently omitted any reference to the Commission that would provide a context for the then-candidate’s remarks, leaving misleading fragments of what the candidates actually said. Justice Wecht’s quotations, including his references to the Pennsylvania Supreme Court’s duty to appoint the fifth member of the Commission, are provided below, as highlighted to indicate the Legislative Respondents’ blatant and obviously deliberate omissions: Let me be very clear: Gerrymandering is an absolute abomination. It is a travesty. It is deeply wrong. The Supreme Court has a critical role to play. The Supreme Court appoints the fifth member and exists at the end of the process to determine the constitutionality and lawfulness of these districts. Stop this insane gerrymandering. The Supreme Court appoints the fifth member of the reapportionment commission that convenes every ten years after the decennial [census], in order to redraw the lines. And we are one of the most gerrymandered states in the nation. And people who are disenfranchised by this gerrymandering abomination eventually lose faith and grow more apathetic, why, because their voting power has been vastly diluted and they tend to figure “well, I can't make a difference, I’ll just stay home.” . 5 But I can tell you that extreme gerrymandering is an abomination, and antithetical to the concept of one person, one vote. The constitution contemplates that legislative districts are to be contiguous and compact and generally not to fracture municipalities or neighborhoods; and the deliberate disenfranchisement of people, the deliberate disenfranchisement of one party or the other for political reasons is deeply problematic. It is not the role of the court to draw legislative districts in a partisan fashion, but it is the role of the court to appoint the fifth member, the tie-breaker member, to the commission, that will be set up after the 2020 census, and it then will be the job of that 5 member commission to draw the state legislative maps. Ok, so least – in 2014, I believe, there were at least more than 200,000 votes for Democratic candidates for U.S. Congress than