House Bill 38 – Judicial balance or judicial gerrymandering?

March 26, 2021
President’s Message By Elizabeth Hughes

There have been recent efforts to move House Bill 38 (HB 38) through the Pennsylvania legislature. HB 38 would change the current system in place for electing appellate judges. Pennsylvania, along with only seven other states, elects appellate judges in statewide partisan elections. HB 38 would change these elections from statewide to electing these judges from yet to be determined “judicial districts.”

These proposed districts would number approximately ten for Commonwealth Court, fifteen for Superior Court and seven for the Pennsylvania Supreme Court. This would be accomplished through a referendum on the ballot for voters to consider. The bill has currently been tabled after initial attempts to get it through the House in time to be placed on the ballot in May, after it narrowly made it out of the House Judiciary Committee by a 13-12 vote. Despite the potential constitutional ramifications of HB 38, the bill was voted out of committee and hastily pushed forward with no public hearing, no expert testimony, and no opportunity for public comment.

The Allegheny County Bar Association is on record as opposing HB 38 and we have lobbied our legislators to oppose any type of judicial redistricting legislation.

While HB 38 has been tabled for the moment, it is very possible that the supporters of this bill will revisit it again to attempt to place it on the ballot for consideration in November. While the bill has received more attention as of late, this is not new as the attempts to implement the judicial districts concept was first introduced in 2015. The bill gathered new steam after the Pennsylvania Supreme Court struck down the decades long gerrymandering system that has shaped the Commonwealth’s voting districts. Proponents of HB 38 point to a majority of appellate judges being elected from Pennsylvania’s urban centers and use this distinction to bolster their argument that there is a need for “representation” of judges from rural areas in the Commonwealth to protect the interests of those individuals living there.

However, there has been no evidence presented that any litigant has been disenfranchised attributable to from where these judges hail. State Representative Bob Merski of Erie recently wrote an opinion piece that highlighted the many concerns with this proposed legislation. “It’s a measure that would politicize our courts, give the state legislature undue influence in choosing judges, and snatch power out of the hands of Pennsylvania’s voters, where it belongs. Instead of having the power to elect 31 judges and justices, voters would be limited to just three choices – one Commonwealth Court judge, one Superior Court judge, and one Pennsylvania Supreme Court justice,” Merski wrote.

Further, there is widespread concern that this type of system could seriously undermine judicial independence and pressure jurists to answer to special interest groups from these smaller districts, as appellate judges are elected to decide statewide issues, not issues affecting a specific region. The concerns surrounding such a proposal appear to be supported by current practices across the country. According to the National Center for State Courts, only Illinois and Louisiana currently use a regional model for their state appellate courts. The system suggested by HB 38 most closely mirrors that of Illinois. Illinois has seen millions of dollars pumped into these elections, for the sole purpose of trying to influence these seats. Because of the limited regions involved in such an election, it is easier for groups with self-serving agendas to more narrowly target where to direct an influx of special interest money. This is concerning as judges should represent the rule of law, not regional interests, or the private interests of individuals.

Former Chief Justice Ronald Castille of the Supreme Court of Pennsylvania, along with Robert Heim, the current chairman of Pennsylvanians for Modern Courts also penned a recent cautionary message regarding HB 38. They pointed to the dangers of political “horse-trading” of votes that this system could engender, where deals would be made across the court to garner support for specific regional issues. Our appellate courts should not run on the premise of bartering political favors on local issues to maintain a seat. Justice Castille and Heim warn that such a system would practically assure that “the interests of the state as a whole become subordinate to regional interests.”

In addition to the ACBA and Pennsylvanians for Modern Courts, multiple non-partisan groups including the League of Women Voters, Fair Districts PA, ACLU-PA, the Pennsylvania Bar Association, the Philadelphia Bar Association, the Pennsylvania Trial Lawyers Association, and many chambers of commerce across the state have expressed opposition to HB 38. In addition to the concerns noted above, this process is likely to render the appellate courts in Pennsylvania more steeped in political ideology and more likely to undercut racial and gender diversity in a system which is already lacking in the same.

As lawyers, it is vitally important for us to understand the potential ramifications of this bill and to educate ourselves on how such legislation would surely affect the clients that we represent. It is also crucial for bar associations across the state to help educate the public on what this bill means for them and how it might appear on the ballot, in what is often confusing language. In the event that the General Assembly attempts to move HB 38 forward later this year, the ACBA will notify its members and ask that you contact your local House and Senate members to express your opposition to this legislation. Stay tuned.