By: Whitney Snyder

On November 14, 2017, the eve of a prehearing conference before the Commonwealth Court, Senate President Pro Tempore Scarnati attempted to remove the LWV v. PA suit (which the Pennsylvania Supreme Court recently remanded to the Commonwealth Court with a fast-track schedule) to the United States District Court for the Eastern District of Pennsylvania.  Senator Scarnati’s Notice of Removal stated he had the consent required for removal of other General Assembly Defendants (including Representative Turzai), and that consent was not required from “nominal” Defendants the Commonwealth of Pennsylvania, Governor Wolf, Lieutenant Governor Stack, the Acting Secretary of the Commonwealth Torres and Commission of the Bureaus of Commission, Elections, and Legislation Marks (Executive Branch Defendants).  Senator Scarnati claimed federal question jurisdiction exists based on the March 2018 special election to fill the 18th Congressional District seat.

Plaintiffs filed an Emergency Notice for Remand, arguing (1) that all properly joined Defendants must consent to removal and have not, (2) that the 30-day deadline for removal had long expired, and (3) that even if Plaintiffs were attempting to change the districting plan for the March 2018 special election (which they are not) no federal question exists.  Plaintiffs characterized Senator Scarnati’s attempt at removal as frivolous and intended to “derail and delay” the state court proceedings.  In fact, due to the Notice of Removal filing, the Commonwealth Court cancelled the November 15, 2017 prehearing conference.

On November 16, 2017 the Executive Branch Defendants stated their non-concurrence to removal to federal court and concurrence to emergency remand.

In an embarassing turn of events, on November 16, 2017, Senator Scarnati moved to withdraw his notice of removal, stating that Defendant Representative Turzai advised on November 16, 2017 he does not consent to the Notice of Removal.  However, according to House GOP spokesman Steve Miskin, Representative Turzai denies that he had ever consented to the removal.

Judge Baylson for the Eastern District immediately granted the motion to withdraw the notice of removal.

Senator Scarnati’s removal attempt appears to have done no real harm.  The Commonwealth Court rescheduled the prehearing conference for today.  The hearing in the case will start on December 11.

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.