Establishing a Constitutional Right to Appeal Versus Leaving it up to Congress

September 19, 2017

By: Dennis Whitaker

Pa. Constitution Article V and Article III of the U.S. Constitution

Earlier posts in this series outlined how Pennsylvania’s Supreme Court often construes the guarantees that Pennsylvania’s Constitution provides more broadly than the U.S. Supreme Court construes those that analogous provisions in the federal Constitution provide; we also showed that Pennsylvania courts apply various degrees of scrutiny depending on the interests implicated where the rights to assemble and to petition guaranteed by Art. I § 20 of the Pa. Constitution collide with the right to possess and protect real property guaranteed by Art. I § 1, while federal courts constantly apply strict scrutiny to such cases under the federal Constitution.  In this installment, we compare and contrast the appeal provisions provided in Article III of the federal Constitution and Article V in the Pennsylvania constitution.

Article III

For those who assume that the right to appeal is enshrined in the constitution, the brevity and limited specificity of Article III of the federal Constitution may be surprising. Article III consists of three sections: Section 1, which provides in pertinent part that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”; Section 2, which establishes the scope of the judicial power (subsequently limited as to suits against the states by the Eleventh Amendment), defines the original and appellate jurisdiction of the Supreme Court with the details left to Congress, and provides that trial of all crimes save impeachment shall be by jury; and, Section 3, which defines treason. Other than what may be inferred from Article III’s vesting of appellate jurisdiction in the Supreme Court, the federal Constitution contains no explicit guarantee of an appeal, the framers having left it to Congress to decide one’s right to an appeal.

The manner in which Congress has organized the federal courts and defined their jurisdiction over the past 230 years provides a window into disagreements over the reach of the federal judicial power, so a brief history of the system follows.

Congress implemented Art. III, § 1 and “ordain[ed] and establish[ed]” inferior courts through the Judiciary Act of 1789. Although there have been major changes through subsequent enactments, the 1789 Act established the outlines of the federal system we know today: a supreme court with appellate jurisdiction to be the final arbiter on constitutional issues and federal law, and lower courts covering specific geographic areas all with the same jurisdiction as their fellows. These lower courts have proven to be outside the norm of other federal systems in that they exist in addition to the courts that the states established, with the purpose of enforcing the federal law. Congress established two different trial courts, called circuit courts and district courts, with the circuit courts also having limited appellate jurisdiction. The 1789 Act also prescribed the jurisdiction of the federal courts and provided the courts with other powers such as the promulgation of procedural rules. Aside from the judiciary, the Act also provided for the appointment of clerks, marshals, U.S. attorneys, and an attorney general.

The Act established 13 district courts which had jurisdiction over forfeitures and penalties, minor federal crimes and minor cases where the U.S. was the plaintiff, and admiralty matters; and three circuit courts on which sat the two Supreme Court justices assigned to that circuit and the district judge from whatever district within the circuit the matter arose. The circuit courts heard diversity cases and major federal crimes and major U.S. plaintiff matters. There was no provision for suing the United States. Finally, the circuit courts heard appeals of some cases from the district courts. Congress also provided for 6 Supreme Court Justices including a Chief Justice, original jurisdiction per Art. III, § 2 of the Constitution and the Court’s appellate jurisdiction which, until the1890’s, did not include most criminal matters.

Although the Constitution authorized broader federal jurisdiction, Congress through the 1789 Act limited that jurisdiction to matters involving admiralty, diversity of citizenship, where the U.S. was plaintiff and to federal crimes. The limited jurisdiction reflected concessions made to those who feared a powerful federal judiciary (much as the Bill of Rights was a response to those who feared a powerful federal government). On the other hand, Congress provided the federal courts with diversity jurisdiction which was designed to establish a stable legal basis for trade and other conditions important to a flourishing federal system.

Between 1789 and 1891, Congress established additional district and circuit courts in an effort to keep pace with the national growth. The Supreme Court grew to 10 justices in 1863, fell to nine and then eight, and then in 1870 went back to the nine we have today.

With the Judiciary Act of 1875, Congress expanded the federal courts’ purview to include general federal question jurisdiction. The 1875 Civil Rights Act established federal courts as the protectors of constitutional rights through interpretation of the growing reach of federal law. However, these acts also increased the burden on the system resulting in delay and an inability to conduct effective appellate review.

Congress finally addressed these issues through the Circuit Court of Appeals Act of 1891, popularly known as the Evarts Act. In a nutshell, the Evarts Act shifted the burden of hearing appeals to newly created courts of appeals and established the district courts as the primary federal trial courts. The circuit courts first established by the 1789 Act did not disappear until they were abolished in 1911, meaning that there were two separate federal trial courts from 1891 until 1911. Since 1891, Congress has broadened the Supreme Court’s certiorari jurisdiction and eliminated most of the Court’s mandatory appellate jurisdiction. Although the system is substantially larger now than in 1891, the changes the Evarts Act established remain the basic structure of the federal judiciary. Congress on the other hand has continued to tinker with federal jurisdiction in such areas as the death penalty.

Article V

In contrast to Article III, Article V of the Pennsylvania Constitution contains a robust 18 sections. Section 1 establishes the Unified Judicial System (UJS) and sections 2 through 7 establish the Supreme Court, two intermediate appellate courts, the courts of common pleas, community courts and Philadelphia Municipal court, what now are known as magisterial district justices, and additional courts as the General Assembly may establish. Sections 10 through 18 provide what amount to administrative provisions for the system and its judges and justices. In addition, Article V contains a 25 section Schedule providing additional structure to the UJS.

The major difference between Article III of the federal Constitution and Article V of the Pennsylvania Constitution is the presence in Article V of Section 8 which provides as follows:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there also shall be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

We discussed the development of appeals from administrative agencies in a previous post.  Before 1968, general jurisdiction appeals provided for by statute went to the Superior Court and the Court of Common Pleas of Dauphin County heard appeals authorized by the AAL or other provision on the Commonwealth Docket. The 1968 Constitution guaranteed all litigants a right to appeal to a court designated by statute.

In addition to the right of appeal Art. V, § 8 guarantees, the Pennsylvania Constitution also contains an additional guarantee in Article I, the Declaration of Rights. Art. I, § 11 provides that:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

From this we can conclude that the framers of the 1968 Constitution intended that the right to appeal be universally available to those litigants aggrieved by the actions of their government or by another person or entity. Article III on the other hand, leaves it largely to Congress to establish who may appeal from what action and to what court.

We hope you’ve enjoyed this second installment in Pennsylvania Appellate Advocate’s Constitutional Week series as we continue to explore the differences between the federal and Pennsylvania Constitutions. Tomorrow, in a post by Kevin McKeon, we will focus on Pennsylvania’s special protection of the right to reputation.

For additional information, visit the National Constitution Center’s website and blog.

About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.