October 4, 2017

By: Whitney Snyder

Senior Judge Pellegrini presided over a packed court room this morning to hear oral argument on whether he should grant the General Assembly’s request to stay the proceeding pending the U.S. Supreme Court decision in Gill v. Whitford.  Mentioning that he was the master in Erfer v. Com., 794 A.2d 325 (Pa. 2002), the leading case on the justiciability of gerrymandering under the Pennsylvania Constitution, Judge Pellegrini said he views his role in this case as similar to his task in Erfer, to tee it up for an en banc panel of the Commonwealth Court to decide.

General Assembly

Counsel for the General Assembly barely finished introducing his argument before Judge Pellegrini began a line of questions that essentially cornered counsel into admitting the Supreme Court’s decision in Gill v. Whitford will not resolve or render moot this case (the standard for granting a stay).  Specifically, counsel would not concede that if the Supreme Court affirms the federal three judge panel’s holdings that gerrymandering claims are justiciable and the standards to use when determining equal protection violations of voting rights, then the General Assembly would lose before the Pennsylvania courts (even though the General Assembly’s request for stay is premised on the corollary to this proposition – that if the Supreme Court rules gerrymandering claims are not justiciable or that the standards the Petitioners in Gill v. Whitford set forth do not show a violation of equal protection or the first amendment, Petitioners case would lose before the Pennsylvania courts).  Counsel for the General Assembly argued that he could not concede the point because the various standards and types of evidence the Supreme Court may find convincing there may not show a violation of rights here.  Quoting Chief Justice Roberts at yesterday’s Gill v. Whitford argument, counsel referred to evidence such as the efficiency gap as “social science hodge podge” that would not be predictive of this case even if it were found to be the applicable standard.

Continuing with the issue of justiciable standard, Judge Pellegrini asked what would happen in LWV v. PA if the Supreme Court found one justiciable standard is that voting districts must be compact and congruent to avoid a violation of equal protection, presumably foreshadowing his thoughts on the current Pennsylvania voting district lines (which as we discuss here, are anything but compact and congruent).  Referring to this compactness and congruency as traditional districting standards, counsel said the General Assembly does not concede that the current districting plan in Pennsylvania does not meet these standards.  Counsel also distinguished how these claims arose in Gill v. Whitford – as Wisconsin constitutional standards which are not present in Pennsylvania.  Judge Pellegrini had two responses to this argument: (1) “at a certain point in time you have to look at a map” and (2) even if the Pennsylvania Supreme court has not previously adopted this as a justiciable standard, this is not predictive of the future, especially given that Court’s current jurisprudence, citing last week’s decision in William Penn (discussed here), which overturned years of justiciability precedent.


Counsel for Petitioners likewise faced an inquisition, however, at the outset, Judge Pellegrini agreed that it is not the Commonwealth Court’s job to overrule the Pennsylvania Supreme Court’s holdings in Erfer, regardless of what U.S. Supreme Court holds in Gill v. Whitford.  As we discussed in our Constitution Week Series, this is due to the bedrock constitutional law principle that the Pennsylvania Supreme Court has the last word on interpretation of the Pennsylvania Constitution, and LWV v. PA solely involves state constitutional claims, while Gill v. Whitford involves federal constitutional claims.

Judge Pellegrini next turned to the timing constraints of the case, asking why, if as Petitioners plead in opposing the stay, the proceeding must go forward now to affect the 2018 elections, the petition was not filed until 2017 and the Petitioners did not seek to proceed under the Pennsylvania Supreme Court’s King’s Bench jurisdiction.  Counsel replied that since only limited discovery will be required here, he believed that the case could proceed to final decision from the Supreme Court early enough to achieve Petitioners’ goals.  Judge Pellegrini responded that there was little chance of this case even making it through the Commonwealth Court prior to March 2018.  Counsel then referred to the fact that Erfer made it to final Pennsylvania Supreme Court decision in two months.  To which Judge Pellegrini explained that case moved quickly because it was brought under King’s Bench jurisdiction.


Picking up on the timing theme, on rebuttal counsel for the General Assembly mentioned there are serious legislative issues surrounding the discovery in this case, such as seeking to depose members of the General Assembly.  Judge Pellegrini agreed, stating he would likely refer issues of such importance for en banc decision.

Counsel concluded his argument with the proposition that the court should be interested in getting this case right, not getting it done quickly.

Lieutenant Governor

Counsel for the Lieutenant Governor next asked to be heard.  Unlike the other executive branch parties in this proceeding, the Lieutenant Governor does not want to be dismissed from the case, and instead his counsel supported the Petitioner’s arguments, stating this case should go forward now.


Based on the arguments from today, I think it is highly unlikely Judge Pellegrini will issue a stay.  He clearly foreshadowed his opinion that Erfer controls this case on the justiciability question and that it is not the Commonwealth Court’s job to change that ruling based on what the U.S. Supreme Court may do in Gill v. Whitford.

Another interesting procedural spin could occur if Petitioners take Judge Pellegrini’s obvious suggestion to file for King’s Bench jurisdiction with the Pennsylvania Supreme Court to try to hasten decision in the proceeding. However, even if Petitioners take this step, it is unlikely that the Supreme Court would be interested in holding a trial and the Court may look to Commonwealth Court to take the trial court role.

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.