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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY M. SMITH, GABIG, BRENNAN, CARROLL, MAHONEY, MARSICO, MILNE, MURT, M. O'BRIEN, ROSS, SANTARSIERO, SHAPIRO AND VITALI, JUNE 5, 2009 |
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| REFERRED TO COMMITTEE ON JUDICIARY, JUNE 5, 2009 |
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| AN ACT |
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1 | Amending Title 71 (State Government) of the Pennsylvania |
2 | Consolidated Statutes, establishing the Appellate Court |
3 | Nominating Commission. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Title 71 of the Pennsylvania Consolidated |
7 | Statutes is amended by adding a part to read: |
8 | PART III |
9 | JUDICIAL MATTERS |
10 | Chapter |
11 | 21. Appellate Court Nominating Commission |
12 | CHAPTER 21 |
13 | APPELLATE COURT NOMINATING COMMISSION |
14 | Sec. |
15 | 2101. Definitions. |
16 | 2102. Establishment and purpose. |
17 | 2103. Membership, qualifications and operation. |
18 | 2104. Judicial nominee applicants. |
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1 | § 2101. Definitions. |
2 | The following words and phrases when used in this chapter |
3 | shall have the meanings given to them in this section unless the |
4 | context clearly indicates otherwise: |
5 | "Business organization." An organization that represents the |
6 | interests of persons engaged in commercial, industrial or |
7 | agricultural enterprises. |
8 | "Civic group." A Pennsylvania nonprofit corporation that is |
9 | exempt from Federal income tax under section 501(c)(3) of the |
10 | Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § |
11 | 501(c)(3)). The term does not include any organization formed |
12 | for a religious purpose or any organization that does not have |
13 | members who are Commonwealth residents. |
14 | "Commission." The Appellate Court Nominating Commission |
15 | established under section 14 of Article V of the Constitution of |
16 | Pennsylvania and under section 2102 (relating to establishment |
17 | and purpose). |
18 | "Department." The Department of State of the Commonwealth. |
19 | "Law school." A graduate school located in this |
20 | Commonwealth, accredited by the American Bar Association and |
21 | offering study leading to the degree of Juris Doctor. |
22 | "Law school dean" or "dean." The administrator in charge of |
23 | a law school. |
24 | "Lobbyist." As defined under 65 Pa.C.S. § 13A03 (relating to |
25 | definitions). |
26 | "Professional association." An organization that represents |
27 | the interests of its members who practice a profession. The term |
28 | does not include associations that represent attorneys. |
29 | "Public members." Members of the commission appointed under |
30 | section 2103(a)(3) (relating to membership, qualifications and |
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1 | operation). |
2 | "Public safety association." An organization that represents |
3 | the interests of its members who are engaged in an occupation |
4 | responsible for public safety, including law enforcement |
5 | agencies, district attorneys' associations, victims' rights |
6 | groups, fire departments or emergency medical service providers. |
7 | "Secretary." The Secretary of State. |
8 | "Union." An organization of employees, not dominated or |
9 | controlled by any employer or any employer organization, having |
10 | among its purposes that of collective bargaining as to the terms |
11 | and conditions of employment. |
12 | § 2102. Establishment and purpose. |
13 | Pursuant to section 14 of Article V of the Constitution of |
14 | Pennsylvania, there is established an Appellate Court Nominating |
15 | Commission within the department. The purpose of the commission |
16 | shall be to nominate individuals for the offices of justice of |
17 | the Supreme Court and judge of the Superior Court and |
18 | Commonwealth Court. |
19 | § 2103. Membership, qualifications and operation. |
20 | (a) Composition.--The commission shall be comprised of the |
21 | following: |
22 | (1) Four legislative appointees. The following shall |
23 | apply: |
24 | (i) Appointments are as follows: |
25 | (A) One individual appointed by the President |
26 | pro tempore of the Senate. |
27 | (B) One individual appointed by the Minority |
28 | Leader of the Senate. |
29 | (C) One individual appointed by the Speaker of |
30 | the House of Representatives. |
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1 | (D) One individual appointed by the Minority |
2 | Leader of the House of Representatives. |
3 | (ii) Each of the members appointed under |
4 | subparagraph (i) shall be members of the bar of the |
5 | Supreme Court but may not be justices, judges or |
6 | magisterial district judges. |
7 | (iii) None of the members appointed under |
8 | subparagraph (i) may be members of the General Assembly |
9 | or their staff or a relative of a member of the General |
10 | Assembly or a relative of a General Assembly member's |
11 | staff. For purposes of this subparagraph, a relative |
12 | shall include a wife, husband, child, mother, father, |
13 | sister or brother. |
14 | (2) Four members appointed by the Governor. The |
15 | following shall apply: |
16 | (i) Two individuals shall be members of the bar of |
17 | the Supreme Court but may not be justices, judges or |
18 | magisterial district judges. |
19 | (ii) At the time of appointment, all individuals |
20 | shall be residents of different counties. |
21 | (iii) No more than two individuals shall be |
22 | registered in the same political party. |
23 | (iv) None of the members appointed by the Governor |
24 | may be a member of the Governor's staff, a relative of |
25 | the Governor or a relative of the Governor's staff. For |
26 | purposes of this subparagraph, a relative shall include a |
27 | wife, husband, child, mother, father, sister or brother. |
28 | (3) Six public members. The following shall apply: |
29 | (i) One public member shall be a dean of one of the |
30 | law schools located in this Commonwealth, who shall be |
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1 | selected as follows: |
2 | (A) Within 30 days following the effective date |
3 | of this section and at least 120 days prior to the |
4 | expiration of each term of the law school dean member |
5 | of the commission, the secretary shall notify each |
6 | law school dean that they are to choose from among |
7 | themselves a law school dean to serve as a member of |
8 | the commission. |
9 | (B) Within 60 days following receipt of the |
10 | notification under clause (A), the deans shall choose |
11 | who among them will be a member of the commission. |
12 | (C) As soon as practicable following their |
13 | selection, the deans shall send a letter to the |
14 | secretary, signed by each dean, notifying the |
15 | secretary of their selection. |
16 | (D) Upon expiration of a dean's term on the |
17 | commission, the same process shall be used to fill |
18 | the vacancy, except that the successor dean shall |
19 | come from a different law school than the outgoing |
20 | dean. |
21 | (ii) Five public members, one each selected by |
22 | business organizations, civic organizations, professional |
23 | associations, public safety organizations, unions and |
24 | federation of unions. The following shall apply: |
25 | (A) Within 30 days following the effective date |
26 | of this section and at least 120 days prior to the |
27 | expiration of each term of the public members of the |
28 | commission other than the law school dean member, the |
29 | secretary shall transmit a notice for publication to |
30 | two newspapers in every county in this Commonwealth |
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1 | and to the Legislative Reference Bureau for |
2 | publication in the Pennsylvania Bulletin that will |
3 | alert the organizations described under subparagraph |
4 | (ii) that they may apply to be included in the |
5 | process of appointing members of the commission. The |
6 | notice shall also describe details of the application |
7 | process and shall include a form of application to be |
8 | used. The notice and the form of application shall |
9 | also be posted on the department's Internet website. |
10 | (B) An organization described under subparagraph |
11 | (ii) that desires to participate in the nomination |
12 | process shall submit an application to the secretary. |
13 | All applications shall be submitted by the date |
14 | occurring 30 days after the date of publication in |
15 | the Pennsylvania Bulletin of the notice described |
16 | under clause (A) and shall include all of the |
17 | following: |
18 | (I) The name and address of the organization |
19 | and the name and telephone number of a contact |
20 | person. The organization must indicate that its |
21 | principal place of business is in this |
22 | Commonwealth. |
23 | (II) A statement as to the specific category |
24 | for which the organization wishes to be |
25 | considered. An organization may only submit an |
26 | application for one of the categories listed |
27 | under subparagraph (ii) for a given vacancy. |
28 | (III) A statement of the number of members |
29 | of the organization who are Commonwealth |
30 | residents as of the date of the application. |
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1 | (IV) Any other information required by the |
2 | department. Any person who makes a false |
3 | statement on an application submitted under this |
4 | subparagraph shall be subject to prosecution |
5 | under 18 Pa.C.S. §§ 4903 (relating to false |
6 | swearing) and 4904 (relating to unsworn |
7 | falsification to authorities). |
8 | (C) Within 15 days following the last day for |
9 | receipt of applications under clause (B), the |
10 | secretary shall notify the five organizations in each |
11 | of the categories listed under subparagraph (ii) with |
12 | the highest number of members who are Commonwealth |
13 | residents that they are eligible to submit the name |
14 | of a person in their organization who meets the |
15 | requirements of subsection (b) who desires to be |
16 | considered for selection as a member of the |
17 | commission. The names shall be submitted in writing |
18 | to the secretary within 15 days following receipt of |
19 | the notification required under this clause. |
20 | (D) Within ten days following receipt of the |
21 | names of individuals submitted by organizations under |
22 | clause (C), the secretary shall publicly draw lots |
23 | from each of the five categories of organizations to |
24 | determine who shall serve as the public member of the |
25 | commission from each category. |
26 | (E) Upon expiration of a public member's term on |
27 | the commission, the same selection process shall be |
28 | used to fill the vacancy. |
29 | (b) Qualifications of members.-- |
30 | (1) All members of the commission shall have been a |
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1 | resident of this Commonwealth for at least one year prior to |
2 | the member's appointment. |
3 | (2) All members of the commission must be 18 years of |
4 | age or older as of the date of their appointment. |
5 | (3) During his or her term, a member may not do any of |
6 | the following: |
7 | (i) Hold any office in any political party or |
8 | political organization or hold any elected or appointed |
9 | public office, compensated or uncompensated, except that |
10 | members may serve as part-time solicitors to a political |
11 | subdivision. |
12 | (ii) Be employed by the unified judicial system. |
13 | (4) No person who is a lobbyist may be appointed to |
14 | serve on the commission. |
15 | (5) In making appointments to the commission, each |
16 | nominating or appointing authority shall take into |
17 | consideration that the commission should include men and |
18 | women, as well as individuals who represent racially and |
19 | ethnically diverse backgrounds, and who reflect the |
20 | geographic diversity of this Commonwealth. |
21 | (c) Terms of office, removal and vacancies.-- |
22 | (1) Except as provided under paragraph (2), commission |
23 | members shall serve a term of four years. |
24 | (2) Limitations on terms shall be as follows: |
25 | (i) The original members of the commission shall |
26 | have the following terms: |
27 | (A) The legislative appointees shall have the |
28 | following terms: |
29 | (I) The appointee of the President pro |
30 | tempore of the Senate shall serve for four years. |
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1 | (II) The appointee of the Speaker of the |
2 | House of Representatives shall serve for three |
3 | years. |
4 | (III) The appointee of the Minority Leader |
5 | of the Senate shall serve for two years. |
6 | (IV) The appointee of the Minority Leader of |
7 | the House of Representatives shall serve for one |
8 | year. |
9 | (B) The Governor's appointees shall have the |
10 | following terms: |
11 | (I) One appointee shall serve for four |
12 | years. |
13 | (II) One appointee shall serve for three |
14 | years. |
15 | (III) One appointee shall serve for two |
16 | years. |
17 | (IV) One appointee shall serve for one year. |
18 | (C) The public members shall serve for four |
19 | years. |
20 | (ii) A member who has served a full term shall not |
21 | be permitted to serve during the next succeeding term. |
22 | (iii) For purposes of this paragraph, service for a |
23 | period of two years or less shall not be considered a |
24 | full term. |
25 | (3) Commission members may only be removed by the |
26 | commission for the following reasons: |
27 | (i) For a violation of the commission's rules |
28 | governing the conduct of members. |
29 | (ii) If the person, during the course of the |
30 | person's term, no longer meets the qualifications of |
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1 | subsection (b)(1), (2), (3) or (4). |
2 | (4) In the event of a vacancy on the commission the |
3 | following shall apply: |
4 | (i) If the vacancy occurs for a reason stated under |
5 | paragraph (3), the vacancy shall be filled for the |
6 | remainder of the term in the same manner the outgoing |
7 | member was initially appointed, except that, if the |
8 | vacancy is created because a public member selected under |
9 | subsection (a)(3)(ii) is removed from the commission, the |
10 | organization that appointed the member shall select a new |
11 | member. |
12 | (ii) If a vacancy occurs as a result of the |
13 | expiration of the term of a legislative or gubernatorial |
14 | appointee, a new member shall be appointed in the same |
15 | manner as the member was initially appointed. |
16 | (iii) If a vacancy occurs as a result of the |
17 | expiration of the term of a public member selected under |
18 | subsection (a)(3)(i), the vacancy shall be filled in the |
19 | same manner as the member was originally selected. |
20 | (iv) If a vacancy occurs as a result of the |
21 | expiration of the term of a public member selected under |
22 | subsection (a)(3)(ii), the secretary shall fill the |
23 | vacancy in the same manner as the member was initially |
24 | selected, except that the public organization that |
25 | nominated the commission member whose vacancy is being |
26 | filled shall not be permitted to participate in the |
27 | process to select the immediately succeeding commission |
28 | member. |
29 | (d) Operation.-- |
30 | (1) From among the commission's members, the commission |
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1 | shall select a chairperson, vice chairperson and other |
2 | officers as the commission shall determine. |
3 | (2) The commission shall establish its own rules of |
4 | procedure and rules governing the conduct of its members. |
5 | (3) Nine members shall constitute a quorum. A majority |
6 | of the members present at any meeting of the commission shall |
7 | be required for all actions of the commission. |
8 | (4) Members shall not be compensated for their service |
9 | as members of the commission but shall be reimbursed for |
10 | expenses necessarily incurred in the discharge of their |
11 | official duties in accordance with Commonwealth policy in |
12 | effect for community agencies under the Governor's |
13 | jurisdiction. |
14 | (5) The department shall provide administrative support |
15 | for the commission. |
16 | § 2104. Judicial nominee applicants. |
17 | (a) Solicitation.-- |
18 | (1) When it is known that a vacancy will occur, the |
19 | commission shall publicly announce the vacancy no later than |
20 | 90 days prior to the expected date of the vacancy. |
21 | (2) If an unexpected vacancy occurs, the commission |
22 | shall publicly announce the vacancy within 30 days following |
23 | the vacancy. |
24 | (3) The commission shall develop the form of application |
25 | to be submitted and shall make the form available at the time |
26 | a public announcement regarding a vacancy is made. |
27 | Applications may be submitted by individuals desiring to be |
28 | considered for nomination to fill a vacancy commencing with |
29 | the date of the public announcement and ending on the date |
30 | occurring 30 days later. |
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1 | (b) Review of applications and evaluation of applicants.-- |
2 | (1) The commission shall review and evaluate all |
3 | applications submitted to fill vacancies. |
4 | (2) The commission shall interview the applicant and may |
5 | interview individuals with knowledge of the applicant. |
6 | (3) The commission may obtain any appropriate or |
7 | relevant documentation that relates to the applicant's |
8 | suitability to serve as a justice or judge. |
9 | (c) Selection.-- |
10 | (1) From the applications received and reviewed under |
11 | subsection (b), the commission shall agree on at least two |
12 | but no more than five names of the most qualified applicants |
13 | whose names will be recommended to the Governor. In order for |
14 | an individual's name to appear on the list, the individual |
15 | must meet all of the following requirements: |
16 | (i) Notwithstanding the provisions of section |
17 | 2103(d)(3), (relating to membership, qualifications and |
18 | operation), received affirmative votes from at least |
19 | eight of the members of the commission. |
20 | (ii) Is a licensed member in good standing of the |
21 | bar of the Supreme Court. |
22 | (iii) Has either practiced law, served as a judge of |
23 | a Federal court, served on a court or courts of record of |
24 | this Commonwealth or been engaged in a law-related |
25 | occupation for an aggregate of at least ten years prior |
26 | to the date of the nomination. |
27 | (iv) Has demonstrated integrity, judicial |
28 | temperament, professional competence and experience and |
29 | commitment to the community. |
30 | (2) The commission shall consider that each of the |
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1 | appellate courts should include both men and women who come |
2 | from racially and ethnically diverse backgrounds and who |
3 | reflect the geographic diversity of this Commonwealth. |
4 | (d) Presentation of applicants to the Governor.-- |
5 | (1) The list of the most qualified applicants shall be |
6 | presented to the Governor no later than 30 days prior to the |
7 | expected date of the vacancy or, with respect to an |
8 | unexpected vacancy, no later than 60 days after the vacancy |
9 | occurs. |
10 | (2) The names of the applicants on the list shall appear |
11 | in alphabetical order. The commission shall submit |
12 | biographical information regarding each applicant along with |
13 | the list of names. |
14 | (3) Only one list may be provided to the Governor for |
15 | each vacancy. If there is more than one vacancy on the same |
16 | court, separate lists shall be submitted to the Governor for |
17 | each vacancy, and the lists shall contain no more than two |
18 | names in common. |
19 | (4) In the event of death or withdrawal of a person |
20 | whose name appears on the list presented to the Governor, the |
21 | commission shall submit to the Governor an addendum to the |
22 | list providing the name of a new applicant selected in the |
23 | same manner as the other individuals on the list. |
24 | (e) Publication.-- |
25 | (1) Immediately following submission to the Governor, |
26 | the list shall be submitted to the Senate and shall be made |
27 | available to the public. |
28 | (2) The biographical information of the applicants shall |
29 | be made available to the Senate and to the public. |
30 | (3) All other information submitted to or developed by |
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1 | the commission concerning applicants, whether or not the |
2 | applicants' names appear on the list submitted to the |
3 | Governor, and all proceedings, deliberations and votes of the |
4 | commission shall remain confidential and shall not be subject |
5 | to disclosure under the act of February 14, 2008 (P.L.6, |
6 | No.3), known as the Right-to-Know Law. |
7 | Section 2. The Secretary of State shall transmit notice to |
8 | the Legislative Reference Bureau for publication in the |
9 | Pennsylvania Bulletin of passage of a constitutional amendment |
10 | providing for an Appellate Court Nominating Commission. |
11 | Section 3. This act shall take effect upon publication in |
12 | the Pennsylvania Bulletin of the notice under section 2. |
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