By: Dennis Whitaker

Yesterday evening, Widener Commonwealth Law School hosted a forum for the candidates for Commonwealth Court. The Forum was sponsored by the League of Women Voters of Pennsylvania, Pennsylvanians for Modern Courts, and the Pennsylvania Women’s Forum. Moderator Corinna Vescey Wilson kept the proceedings moving over the one-hour length, and the candidates fielded questions from a panel consisting of Steve Esack, Harrisburg correspondent for The Morning Call, John Baer, columnist for the Philadelphia Daily News, and Paula Knudsen, reporter for The Caucus.

By way of background, there are four candidates, two Democrats and two Republicans, running for two open seats on Commonwealth Court. The seats opened when Judge Dan Pellegrini (D) and Judge Bonnie Brigance Leadbetter (R) took senior judge status at the end of 2016. Governor Wolf appointed Joseph Cosgrove (D) and Julia Hearthway (R) to fill the vacancies. Judge Cosgrove unsuccessfully sought his party’s nomination for a full term in the May primary elections, and Judge Hearthway elected not to run for a full term.

The candidates at the forum were: Christine Fizzano Cannon (R), currently a judge on the Delaware County Court of Common Pleas; Ellen Ceisler (D), currently a judge on the Philadelphia Court of Common Pleas; Irene Clark (D), a former Pittsburgh Municipal Court Judge who most recently concentrated on blight revitalization; and, Paul Lally (R), an attorney in private practice who focuses on labor and employment issues for municipalities and public school clients. The composition of commissioned judges on Commonwealth Court currently stands at six Republicans and one Democrat, with the two vacant seats to be filled on November 7. The Republicans still will hold a majority of the commissioned judgeships regardless of the outcome of the election, with the final composition being 6-3, 7-2 or 8-1 Republicans to Democrats depending on the results.

Turning to the Forum, the first question from Steve Esack cited the exchange of porn emails by judges with lawyers and other instances of ex parte communications, asking the candidates to address the ethics of judges’ relationships with attorneys outside of court.  All of the candidates pledged that they would have no ex parte contacts, and stressed their commitment to fairness and impartiality. Paul Lally noted that instances such as those referenced in the question undermine public confidence in the courts. Judge Ceisler observed that judges must accept that a distance must be kept between themselves and attorneys and litigants. Irene Clark agreed that judges must hold themselves apart. Judge Cannon stressed not just impartiality in fact, but the necessity of the appearance of impartiality.

The second question from John Baer touched on constitutional oversight of the legislature by the courts and the reliance by the courts on the legislature for operating funds and salaries. The candidates pledged to enforce the constitution and the judges and former judge Clark stated that the funding issue did not impact them on the bench. Paul Lally stressed the importance of an independent judiciary.

The third question from Paula Knudson raised the issue of judges accepting gifts from lawyers, and her follow up expanded that to gifts from bar associations and the like. All candidates pledged to accept no gifts and the sitting judges stressed that they had never done so. As to gifts from associations, the candidates all expressed discomfort with the practice.

Steve Esack presented the fourth question regarding the candidates’ view of constitutional interpretation. Judge Cannon advised that she was an originalist such that the view of the framers should inform constitutional interpretation, as did Paul Lally. However, Lally noted that Pennsylvania is not under its original constitution (to learn more about the Pennsylvania Constitution, check out our Constitution Week series). Judge Ceisler stated that she believes the constitution is a living, breathing document and that there are rights such as same sex marriage and reproductive choices that are not specifically enumerated. She further stated that establishment of any new rights must occur only under strict scrutiny. Irene Clark observed that judges should be informed by early ideas but also that she believes that the constitution is a living, breathing document.

John Baer next asked about the recent call by members of the General Assembly for a constitutional convention and whether it would be an opportunity for improvements to the judiciary. As to a constitutional convention, the candidates stated that they would leave that to the judgment of the legislature and the voters. Judges Ceisler and Cannon noted that there are ways the judiciary can be improved without a convention, with Judge Cannon specifically referencing judicial discipline and confidentiality issues.

Paula Knudson went on to ask the candidates about their experiences with the Right to Know Law (RTKL) given Commonwealth Court’s large body of RTKL caselaw (for example, see our analysis on recent RTKL decisions from Commonwealth Court). All of the candidates noted the importance of governmental transparency. Judge Ceisler and Judge Cannon discussed their handling of RTKL matters on the bench and in other capacities. Judge Cannon noted the need to balance transparency and privacy. Paul Lally noted that he advised his government clients on RTKL issues and has litigated them on their behalf, and that he has been a presenter on those issues before various groups.

Steve Esack next asked the candidates if judicial activism was real and to define it. Irene Clark stated that judicial activism was judges going beyond the role of the judiciary to create authority where there is none. She felt that the term was used loosely and that sometimes new circumstances called for new rules. Judge Cannon said that judicial activism is real, based on personal policy preferences. She stated that legislating should be left to the legislature and not to the courts. Paul Lally defined it as a conscious decision by a judge to go outside or beyond precedent based on their personal views. He noted the importance of the political question doctrine. Judge Ceisler stated that she applies the law whether or not she agrees with it, noting that she is not an activist judge.

The next question from John Baer asked the candidates to identify the extent their party affiliation reflects their views, and if non-partisan elections would be better. Judge Cannon stated that she leaves her personal preferences at the door and relies upon the law. She can see both sides of the election versus merit appointment debate. Paul Lally noted that cross-filing as allowed for common pleas judges takes the partisan aspect out but that it’s not an option for appellate judges. Judge Ceisler stated that her party affiliation doesn’t impact her decisions but that she would prefer not to have to run with a specific affiliation. Irene Clark noted that she always cross-filed when she ran for Pittsburgh Municipal Court and was surprised to find that she could not do so here.

Paula Knudsen moved the discussion to restoring public confidence in the judiciary after incidents such as kids for cash. Paul Lally stated that judges should follow the rules and be open—they should not be casual about what the rules of conduct require. Judge Ceisler noted that every profession, not just the judiciary, have members that “go off the rails.” She stated that she treats everyone fairly and is very conscious of the necessity for doing so. Irene Clark stated judges must consistently hold themselves to a higher standard. Judge Cannon stated that judges should treat everyone fairly.

Scott Esack asked the candidates if they were wall flowers, bulls in a china shop, or in between as far as working with the Commonwealth Court panel. Judge Ceisler described herself, not as a wallflower, but   as someone who does what she thinks is right. Irene Clark and Judge Cannon stated that they look forward to working with other judges.  Paul Lally noted the collaborative process on the Commonwealth Court.

John Baer moved the discussion to diversity on the appellate courts. Irene Clark stated that she was concerned by diversity issues and noted the work of the Interbranch Commission for Gender, Racial and Ethnic Fairness. She stated that she was proud to be on a diverse Democratic slate. Judge Cannon stated that she promotes women’s issues and would continue to do so. Paul Lally noted that lack of diversity was an issue and that the parties must promote diversity. Judge Ceisler stated that the judiciary should reflect the community and that the system hinders that result. She stated further that it is difficult to run statewide and that a solution could be merit selection.

The candidates then offered closing statements. Judge Cannon touted her experience, ability and integrity. She has been a judge for 6 years and is head of the civil division on the Delaware County Court of Common Pleas. She has relevant experience with Commonwealth Court issues both from the bench and from private practice. She noted that the is the only candidate who is highly recommended by PBA.

Irene Clark noted that she served 10 years on the Pittsburgh Municipal Court, that she was known as a fair judge and that she was appointed the Housing Court Judge. She has had actions as a judge affirmed by Commonwealth Court. After her service she developed solutions to blight and noted the many land banks now in existence. She stressed her commitment to justice and strong work ethic.

Judge Ceisler stated that she was qualified for Commonwealth Court. She has written hundreds of opinions and presided over thousands of trials. After noting that she grew up in poverty, she stated that she has been an attorney for 30 years and a judge for ten. She would like to improve citizens’ quality of life and noted that Commonwealth Court handles issues that touch people’s lives. She said she had a strong interest in government and is unbiased and compassionate.

Paul Lally stated that he is qualified for the court and noted that he has spent most of his career representing government entities and that their issues are decided by Commonwealth Court. He is recommended by the bar and is enthusiastic about serving on the court.

With that, the Forum concluded. You can watch the Forum tonight on PCN at 9:00 p.m.

Join us on October 25 at 12:30 as we live tweet the Supreme Court candidates’ forum, and again on October 31 at 12:30 as we live tweet the Superior Court candidates’ forum.

In the meantime, don’t miss our Commonwealth Court related content.

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.