October 25, 2017

By:  Kevin McKeon

Over the lunch hour on October 25, Widener Commonwealth Law School hosted a forum for candidates for the Supreme Court of Pennsylvania.  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 introduced the candidates and instructed that answers should be limited to one minute.  The candidates then fielded questions from a panel of reporters consisting of Mark Wereschagin of The Caucus, Linn Washington of Al Día News, and Steve Esack of the Allentown Morning Call.

Two candidates, one Democrat and one Republican, are running for the single open seat on the Supreme Court of Pennsylvania.  The seat opened when Justice Mike Eakin (R) retired in 2016.  Governor Wolf appointed Sallie Mundy (R), who at the time was a commissioned judge of the Superior Court, to serve until the next municipal election year, and Justice Mundy received the Republican party’s nomination in 2017.  Judge Dwayne Woodruff (D) of the Court of Common Pleas of Allegheny County, received the Democrat party’s nomination.  As the composition of commissioned justices on the Supreme Court currently stands at five Democrats and two Republicans, Democrats will continue to hold a majority regardless of the outcome of this election.

The first question went to Judge Woodruff from Mike Wereschagin, who asked what the judiciary’s role in the gerrymandering controversy should be.  Judge Woodruff pointed out that gerrymandering diminishes voting rights, and that “just looking at Pennsylvania’s district map” reveals that there are issues.  He noted that the Supreme Court’s only direct involvement is to appoint a fifth redistricting commission member as chair when the four legislative leaders who are automatically appointed to the commission cannot agree on a fifth member.  Justice Mundy stressed that the Supreme Court’s role in redistricting and therefore gerrymandering, is quite limited.  In addition to the possibility of appointing the redistricting commission chair, she noted that the Supreme Court reviews any constitutional challenge to the plan, but again stressed that the Supreme Court has no ability to order a particular districting plan or to draw one itself.

The second question, from Linn Washington, went to Justice Mundy, asking how can the Supreme Court increase diversity on the Court, including Supreme Court law clerks?  Justice Mundy emphasized geographical diversity, stressed that she hails from Tioga County, that there are currently four justices from Pittsburgh on the Supreme Court but there has never been one from Tioga, and that her small county perspective contributes to diversity.  She also emphasized that in appointing committees, the Supreme Court should strive for diversity by appointing lawyers from across the spectrum of the defense and plaintiff bars, and from private firms and government agencies.  Judge Woodruff, an African American, noted that any quest for diversity should “start at the top,” and that if elected he would be only the second elected Supreme Court justice of color in Pennsylvania’s long history.  He also noted that his own court staff in Allegheny County is diverse in that it includes women and people of color.  Picking up on Justice Mundy’s geographical spin, he pointed out his roots in a small “one traffic light” town.

Steve Esack then asked Judge Woodruff about the ethics of ex parte communications between judges, prosecutors and other public and private lawyers, in the wake of the recent Supreme Court email chain pornography scandal.  Judge Woodruff responded that judges need to be above reproach and avoid even the appearance of impropriety.  Justice Mundy agreed that ethics and integrity on the bench are paramount and pointed out that the Supreme Court has recently instituted a continuing education ethics credit requirement for all judges, including Supreme Court justices.  She also pointed out that having cameras in the courtroom helps to “open up the cloak of darkness” that the public sometimes perceives as enveloping the courts.

Justice Mundy then fielded a question from Mike Wereschagin: “What is the difference between a Republican and a Democrat Supreme Court justice?”  Responding that “we hope at the end of the day there is no difference” and that her goal was to “leave all politics at the door” she assured that she would look at each case on its facts.  Judge Woodruff agreed, stating that “justice for all” is what we seek.  He added that in contrast to this Supreme Court race, a court of common pleas judge is permitted to file on both party tickets, and that he did so when he was elected in 2005.  As a follow-up question, the candidates were asked whether the partisan split on the Supreme Court matters.  Justice Mundy acknowledged that the justices have different philosophies, but that whether those differences are driven by politics she could not say.  Judge Woodruff emphasized that he would “make his own decisions.”

Linn Washington then asked Judge Woodruff how he would boost public confidence in an impartial judiciary.  He responded that we need more transparency so that the public can understand what is going on in the courts.  Justice Mundy pointed out that when she was on the Superior Court, the court made an effort to hear arguments at courthouses in counties where the appellate courts typically do not sit, such as Tioga County.  She emphasized that making oral arguments accessible to the general public would “lift the veil” and help the public to understand the process.  She pointed out that PCN’s oral argument broadcasts assist in that effort.

Steve Esack pointed out to Justice Mundy that judicial financial disclosure statements are not available online like those of other government officials, but must be requested from the Administrative Office of Pennsylvania Courts, and asked whether she would advocate putting the forms online.  She responded that she has personally filed disclosure statements, is not aware of any problems with access and understands that the press and the public are able to get the financial disclosure forms when requested.  Judge Woodruff said that he would have “no problem” with changing the practice and putting judicial financial disclosure information online so that it would be more readily available.

Mike Wereschagin then asked Judge Woodruff whether judges should accept gifts or whether the Court should institute a judicial gift ban policy.  He responded that “we work for the public,” that salary is sufficient compensation, and that he is in favor of banning all gifts of any kind.  Justice Mundy noted that in her time on the bench she has never received a gift and that she believes in limitations on gift giving.  She did, however, point out that justices and judges are often invited to bar association meetings and dinners, that such exchanges greatly benefit judges and lawyers, and that she would not support a rule that prevented that sort of experience.

Justice Mundy was then asked by Linn Washington whether the Judicial Conduct Board is enforcing the rules vigilantly enough.  She responded that, in her experience, judges have been punished severely for misconduct, including the loss of pension and disbarment, but she agreed that the Court should look to see how quickly and effectively the Judicial Conduct Board is performing.  Judge Woodruff added that when he was involved on the panel that investigated the “cash for kids” judicial scandal it became apparent to him that judicial ethics were critical, and he implemented some of the lessons he learned in that investigation in his own Court of Common Pleas in Allegheny County.

Steve Esack asked Justice Mundy a question that had been posed to the Commonwealth Court candidates , whether she thought the Pennsylvania Constitution is a stagnant document.  She responded that she is “more of an originalist” than not because society needs predictability in the laws, and is fearful that “breathing in” one’s own interpretation of the Constitution would undermine predictability.  For his part, Judge Woodruff said he views the Constitution as a “living, breathing document”, and that we need to interpret it in light of what is happening in today’s society.  He gave issues surrounding the Internet as an example of matters that could never have been anticipated by the drafters.

Mike Wereschagin then asked whether private financing of judicial elections undermines public confidence in the judiciary.  Justice Mundy responded that traditionally, judicial races have gotten the least amount of statewide attention in elections, that fundraising is therefore necessary, that she is honored that other lawyers and supporters have contributed to her campaign, and that contributions received will not affect her decisions.  Judge Woodruff acknowledged concern about the process, and said it should be revamped, but pointed out that most of the contributions he has received were small in size and came from a large number of people, and that voters have a right to contribute.  He also pointed out that the concept of merit selection has seen a revival of interest, and that as a consequence this election may be the last in which a Supreme Court justice is elected.

The next question and its follow-up dealt with how judges decide whether to recuse themselves and when it is appropriate to do so.  Judge Woodruff stated that he is well known in Allegheny County, having played for the Pittsburgh Steelers for twelve years and been on the bench for twelve years, as well as from remaining active in the community while on the bench, so that he knows many people personally.  He stressed, however, that he “separates that from decision making” on the bench.  He stated that in his twelve years on the bench he has only recused himself once, and that was because of a significant personal relationship with one of the litigants.  Justice Mundy pointed out that it is the judge that gets to decide whether to recuse, and that even if a judge thinks she can be fair, recusal could be appropriate if the public might conclude that there is an appearance of impropriety.  Both candidates agreed, in answer to a follow-up question, that striking the right balance on recusal requests is typically a case-by-case decision.

Steve Esack then asked Justice Mundy for her definition of “judicial activism” and whether it is “real.”  She responded that judicial activism is real, such as when a judge injects her own philosophy into how a statute should be read, and stated “I am a strict constructionist.”  Judge Woodruff, in contrast, stated “I am on the other track” and more “in line with Thurgood Marshall” in his approach, emphasizing that he is the current chair of the Urban League in Pittsburgh and feels that it is important to speak publicly about the law and legal issues.

Next, Mike Wereschagin asked whether elections are the best to way to select Supreme Court justices.  Judge Woodruff acknowledged that candidates need to be qualified and that currently, the only qualification needed to run for the bench is being a lawyer, but at the same time expressed concern that the public needs to be involved.  He seemed to suggest that a selection system that required a higher degree of qualifications in order to seek election is the answer.  Justice Mundy took the position that the current system of electing Supreme Court justices is best, both for the voters and for achieving diversity of candidates, emphasizing that because she comes from a small county, it is unlikely she would have been appointed.

Linn Washington then asked whether courts should initiate the expungement of convictions for small amounts of marijuana.  Justice Mundy stated definitively that such a decision is a legislative decision that the judiciary should not make.  Judge Woodruff said that he “agreed as to adults,” but that for juveniles the courts should implement automatic expungement of such convictions, and that the Allegheny County Court of Common Pleas had initiated a program to do just that.

Steve Esack then enquired about the First Amendment and whether judges should be permitted to speak their minds on issues of public importance.  Judge Woodruff emphasized that judges need to refrain from speaking about issues that could come before the court or that already are before the court in pending cases.  Justice Mundy, while acknowledging that judges have First Amendment rights just like everyone else, agreed that Supreme Court justices need to be restrained in making public statements, especially on matters that come before the Court.  In response to a follow-up question, both candidates acknowledged that, in campaigning, they have felt the need to decline to answer questions concerning pending issues or cases.

Mike Wereschagin then asked about the recent constitutional amendment on judicial retirement age, querying Justice Mundy as to whether she felt that the process resulted in duping the public, who likely believed that in voting “yes” they were voting to institute a retirement age rather than raising the existing retirement age from 70 to 75.  Justice Mundy responded that the Court treated the matter as a legislative issue and decided that it would not change the legislature’s decision.  Judge Woodruff agreed that it was a legislative issue, and that nothing could be done about it now, but strongly believes that the voters had been duped, and that the process should have been more transparent.

The final question asked the candidates what they would change about the court system.  Judge Woodruff noted a significant need for legal assistance to those who cannot afford lawyers, and advocated that the Supreme Court should take steps to assure that pro bono representation by lawyers is a priority.  Justice Mundy agreed about the importance of pro bono representation and suggested that the Court revisit a previous suggestion that CLE credits be given for pro bono work.  She also, again, stressed that the public would greatly benefit if the Supreme Court would begin to hear oral arguments at least once a year in counties other than Allegheny, Dauphin or Philadelphia, because it would give the rest of the public in smaller, more remote counties an opportunity to see the Court in action.

The candidates then gave closing statements.  Judge Woodruff was asked to go first.  He emphasized that he had shown a strong desire to be both a lawyer and a judge, having attended law school at night while playing for the Pittsburgh Steelers, and his belief that the Supreme Court needs a person of color because it presently does not have one and minority issues need to have a seat at the table.  He also emphasized his significant involvement in committee work on behalf of the Supreme Court and his community involvement in the Urban League and the United Way.

Justice Mundy in her closing statement stressed that there has never been a Supreme Court justice from Tioga County, mentioned her experience as a Superior Court judge, a Supreme Court justice, and a trial lawyer that has handled both defense work and plaintiff’s work in large and small counties.  She stressed that she was rated “highly qualified” by the Pennsylvania Bar Association and has the endorsement of many groups, including labor unions, law enforcement, and teachers.

Join us again on October 31 at 12:30 as we live tweet the Superior Court candidates’ forum.  In the meantime, discover more of our Supreme Court related content.

About the Author:

Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.