October 26, 2017

By: Whitney Snyder

The Stay

In a surprising turn of events, on October 16, 2017, Judge Pellegrini partially stayed LWV v. PA, until the Supreme Court issues its decision in Gill v. Whitford.   Claims of legislative privilege regarding requested depositions will proceed.  Judge Pellegrini did not discuss his reasoning.

Having been previously advised of Judge Pellegrini’s pending decision, Petitioners via an Application for Extraordinary Relief sought the Supreme Court’s King’s Bench Jurisdiction on October 11, 2017.  On October 20, the General Assembly answered and requested oral argument.

What is King’s Bench Jurisdiction?

42 Pa. C.S. § 726 grants the Pennsylvania Supreme Court the power to assume full jurisdiction over any matter involving an issue of immediate public importance that is currently pending before any Pennsylvania court.  Once the Court assumes jurisdiction, it can enter a final order or “otherwise cause right and justice to be done.”  The Court can assume jurisdiction on its own or based on application of a party.

Pa. Rule of Appellate Procedure 3309 governs these applications, and provides that answers may be filed within 14 days.  After answers are received, the Court may grant or deny the application, or schedule it for oral argument.

While extraordinary jurisdiction is primarily appellate, the Court can assume jurisdiction at any time, and if it does so before fact-finding in the lower court, it can appoint a master or transfer the case to another court for disposition.  See G. Ronald Darlington, Kevin J. McKeon, Daniel R. Schuckers & Kristen W. Brown, Pennsylvania Appellate Practice  (2016-2017 Ed.) § 3309:1.

If the Court grants the application, it has the same effect as taking an appeal as of right from the lower court – the lower court may no longer act except pursuant to Pa. R.C.P. Ch. 17, which allows the lower court to take limited actions, such as authorizing the taking of depositions.  Id. at § 3309:10.

Notably, Erfer v. Com., 794 A.2d 325 (Pa. 2002), another Pennsylvania Supreme Court redistricting case, proceeded under King’s Bench jurisdiction.  There, the Court exercised its extraordinary jurisdiction because the Commonwealth Court scheduled the case for hearing one day after the closing date for circulation and filing of nomination petitions for the next upcoming election.  The Court appointed Judge Pellegrini as the master to resolve the Erfer case, who held hearings and issued recommended findings of fact and conclusions of law within 14 days of the Court’s remand.  The Court decided the case three days after the closing date for circulation and filing of nomination petitions.  Under this procedure, the Court’s review of Judge Pellegrini’s findings and conclusions was de novo.

LWV’s Application for Extraordinary Relief

In the application, Petitioners reiterate their assertions of extreme gerrymandering present in Pennsylvania’s current districting and the importance of deciding the case prior to the 2018 primaries.  They also describe the delay of the Commonwealth Court proceedings despite their request for expedited treatment.

Relying on the Erfer decision as precedent for the Court to assume jurisdiction, Petitioners note that there is more time to resolve this case than there was in Erfer. And, as Judge Pellegrini noted at oral argument,  if the Court assumes jurisdiction the case could proceed more expeditiously than under the Commonwealth Court’s original jurisdiction.

To bolster the importance of proceeding now and expeditiously, Petitioners referenced the pending October 2, 2017 complaint in federal court, which also challenges Pennsylvania’s districting.  Agre v. Wolf, No. 2:17-cv-04392-MMB (E.D. Pa.).  In contrast to Judge Pellegrini’s decision to stay the LWV proceeding, Judge Baylson of the U.S. District Court for the Eastern District of Pennsylvania found a stay of Agre would be inappropriate and issued a scheduling order with hearing commencing on December 5, 2017.  However, unlike the legal basis of claims in LWV involving equal protection and freedom of speech under the Pennsylvania Constitution and in Gill v. Whitford involving equal protection and freedom of speech under the U.S. Constitution, the Plaintiffs in Agre challenge Pennsylvania’s districting as a violation of their civil rights under 42 U.S.C. § 1983 and the Elections Clause of the U.S. Constitution.  The General Assembly argues the claims in Agre are indistinguishable from the claims LWV and in Gill v. Whitford and has requested reconsideration of Judge Baylson’s scheduling order.

Petitioners also take issue with Judge Pellegrini’s decision to stay the proceeding pending the outcome of Gill v. Whitford, predicting that the General Assembly will, as it did before the Commonwealth Court, argue that Gill could render this proceeding moot.  Petitioners’ highlighted that Judge Pellegrini at oral argument recognized if the U.S. Supreme Court decides federal partisan gerrymandering claims are non-justiciable, it would not moot Petitioner’s claims here because the Pennsylvania Supreme Court has squarely held partisan gerrymandering claims are justiciable under the Pennsylvania Constitution in Erfer and In re 1991 Legis. Reapportionment Comm’n, 609 A.2d 132 (Pa. 1992).

What’s Next?

Given the importance of the issue and the need for a speedy decision it is reasonable to expect the Court will either grant the application or at least order oral argument on the application, and do so expeditiously.

About the Author:  

Whitney Snyder, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in wide-ranging appellate matters in state and federal court.  Her practice focuses primarily on administrative agency appeals and litigation.  Prior to joining the firm Whitney interned at the Pennsylvania Supreme Court and Pennsylvania Public Utility Commission.