Regular Session 2019-2020 House Resolution 1044 P.N. 4487

PRINTER'S NO. 4487

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE RESOLUTION

No.

1044

Session of

2020

INTRODUCED BY RYAN, DIAMOND, BOROWICZ, EVERETT, NELSON, ROWE,

GLEIM, GROVE, METCALFE, RIGBY, MACKENZIE, COOK, IRVIN,

MARSHALL, DAVANZO, KEEFER, TOPPER, JONES, SCHEMEL, CAUSER,

OWLETT, GREGORY, KNOWLES, DUSH, KINSEY, FRITZ, MILLARD,

SANKEY, WARNER, SCHMITT, STAATS, ZIMMERMAN, HEFFLEY AND MOUL,

OCTOBER 6, 2020

REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 6, 2020

A RESOLUTION

Impeaching David N. Wecht, Justice of the Pennsylvania Supreme

Court, for misbehavior in office.

BE IT RESOLVED, That David N. Wecht, a Justice of the Supreme

Court of the Commonwealth of Pennsylvania, be impeached for

misbehavior in office, and that the following Articles of

Impeachment be exhibited to the Senate:

ARTICLE I

As a candidate for Justice of the Pennsylvania Supreme Court

in 2015, Justice Wecht made multiple statements concerning the

constitutionality of Pennsylvania's existing Congressional

districting map which plainly showed his inability to sit as a

fair and impartial jurist.

Just two short years before the dispute was in front of the

Pennsylvania Supreme Court, Justice Wecht stated,

"Gerrymandering is an absolute abomination. It is a travesty. It

is deeply wrong. These [Congressional] districts have been drawn

to disenfranchise the majority of Pennsylvanians. And they have

been drawn by skilled political operatives, and it needs to

stop." Spring 2015 Judge Candidate Forum, Neighborhood Networks

and MoveOn Philly, at https://www.youtube.com/watch?

v=713tnbv55mU&feature=youtu.be.

One of the more damning statements made by Justice Wecht was

made at a candidate's forum held by the named party in League of

Women Voters of Pennsylvania v. Commonwealth, 177 A.3d 1000 (Pa.

Commonwealth 2017). At that forum, he stated, "Everybody in this

room should be angry about how gerrymandered we

are...Understand, sitting here in the city of Pittsburgh, your

vote is diluted. Your power is taken away from you." Eric

Holmberg, Forums Put Spotlight on PA Supreme Court Candidates,

PUBLICSOURCE (Oct. 22, 2015), at www.publicsource.org/forums-

put-spotlight-on-pa-supreme-court-candidates.

Despite this glaringly obvious lack of objectivity and

impartiality, Justice Wecht participated in the deliberations of

the application for the Court to exercise its extraordinary

jurisdiction filed by League of Women Voters of Pennsylvania,

which implored the Court to remove the case using its King's

Bench authority. Justice Wecht sided with the Petitioners,

ordering fact finding and conclusions of law by the Commonwealth

Court to be presented to the Pennsylvania Supreme Court on an

expedited basis. Justice Wecht participated in oral argument by

the parties before the Court. Finally, Justice Wecht

participated in the determination in granting the relief

requested by the Petitioners, manufacturing an extra-textual

series of constitutional requirements for Congressional

redistricting, and reserving for itself the drawing of

Congressional districts.

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Rule 2.11(A) of the Code of Judicial Conduct establishes a

straightforward mandate: Any judge-including a Justice of the

Supreme Court "shall disqualify himself or herself in any

proceeding in which the judge's impartiality might reasonably be

questioned." A judge's impartiality might reasonably be

questioned when "[t]he judge, while a judge or judicial

candidate, has made a public statement, other than in a court

proceeding, judicial decision, or opinion, that commits the

judge to reach a particular result or rule in a particular way

in the proceeding or controversy." Rule 2.11(A)(5). This duty to

disqualify exists "...regardless of whether a motion to

disqualify is filed." Rule 2.11, Comment (2). Justice Wecht

failed in his obligation to disqualify himself from these

proceedings and failed to disclose that he had made these

statements to allow parties to determine whether petition for

his removal from the case. The Court granted extraordinary

relief to the Petitioners by a vote of four justices to three.

Had Justice Wecht conformed his behavior to the mandates in

Canon 1 in the Code of Judicial Conduct, that judges "uphold and

promote the independence, integrity, and impartiality of the

judiciary, and shall avoid impropriety and the appearance of

impropriety," the Court would have lacked a majority vote to

override the Commonwealth Court's stay; lacked a majority to

effectively re-write the Pennsylvania Constitution to impose

additional districting standards for the Congressional

redistricting process; and, would not have facilitated a

violation of Article II, Section 1 of the United States

Constitution by usurping the legislative authority to draw

congressional districts.

Justice Wecht failed to disclose this obvious conflict

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despite having multiple opportunities to do so. When his

statements were discovered, and an application to disqualify him

from these proceedings was filed, Justice Wecht sat in judgment

of his own application for disqualification. Justice Wecht said

that the two weeks needed to fully investigate his biased

statements by a party was far too long to wait after counsel

suspected his bias. He went on to say that counsel should have

assumed that such bias existed and that they should have

conducted their research prior to the beginning of the case.

Finally, the Justice said he should not disqualify himself

because "the publicity surrounding this case and its

consequence, it is as or more likely that the reversal of such a

prominent case after a flurry of state and national media

coverage will call into question this Court's orderly

administration of justice..." League of Women Voters of

Pennsylvania v. Commonwealth, 645 Pa. 341, 361, 179 A.3d 1080,

1092 (2018).

On February 5, 2018, Justice Wecht issued an opinion and

order which effectively manufactured a standard that

impermissible bias on the part of the judiciary has a threshold

"publicity" standard and parties are obligated to engage in pre-

trial investigations of whether their judge will be impartial.

By failing to recuse himself as he should have and

manufacturing new standards for disqualification of justices to

excuse his previously expressed, partisan political interests,

Justice Wecht deprived parties before the court of their rights

to Due Process of law guaranteed under the United States

Constitution and the Constitution of Pennsylvania and engaged in

misbehavior in office.

Wherefore, Justice David N. Wecht is guilty of an impeachable

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offense warranting removal from office and disqualification to

hold any office of trust or profit under this Commonwealth.

ARTICLE II

On January 22, 2018, the Supreme Court of the Commonwealth of

Pennsylvania issued a per curiam Order ("Order") in League of

Women Voters of Pennsylvania v. Commonwealth, holding that the

Congressional Redistricting Act of 2011 ("Act") "clearly,

plainly and palpably violates the Constitution of the

Commonwealth of Pennsylvania" and, on this sole basis, struck it

down as unconstitutional. 644 Pa. 287, 289, 175 A.3d 282, 284

(2018). The Court further enjoined the future use of the Act in

elections for Pennsylvania seats in the United States House of

Representative commencing with the upcoming May 15, 2018,

primary election.

The Court in its Order mandated that if the Pennsylvania

General Assembly chose "...to submit a congressional districting

plan that satisfies the requirements of the Pennsylvania

Constitution, it shall submit such plan for consideration by the

Governor on or before February 9, 2018." Id. at 290, 284. The

Court further held that "[i]f the Governor accepts the General

Assembly's congressional districting plan, it shall be submitted

to this Court on or before February 15, 2018." Id.

This Order overrode the express legislative and executive

authority, found in Article IV, Section 15 of the Pennsylvania

Constitution, concerning the Governor's veto authority and the

General Assembly's subsequent authority to override such veto.

Article IV, Section 15 clearly lays out the path a bill must

take to become law. That process begins in the General Assembly

and once a bill has passed both Houses of the General Assembly,

Article IV, Section 15 directs that it shall then be presented

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to the Governor. If the Governor does not approve the bill, the

Constitution mandates that he shall return it with his

objections to the House in which it originated. At that point,

the originating House shall enter the objections at large upon

their journal and proceed to reconsider it. If after such

reconsideration, two-thirds of all the members elected to that

House shall agree to pass the bill, it shall be sent with the

objections to the other House for reconsideration. If the bill

is then approved by two-thirds of all the members elected to

that House it shall become a law. Article IV, Section 15 further

states:

If any bill shall not be returned by the Governor within

ten days after it shall have been presented to him, the

same shall be a law in like manner as if he had signed

it, unless the General Assembly, by their adjournment,

prevent its return, in which case it shall be a law,

unless he shall file the same, with his objections, in

the office of the Secretary of the Commonwealth, and give

notice thereof by public proclamation within 30 days

after such adjournment.

The February 9th date by which the Court mandated the General

Assembly submit a redistricting plan to the Governor and the

February 15th date by which a redistricting plan must be

approved by the Governor and sent to the Court allows the

Governor only a six-day period within which to consider the plan

and provide his approval, rather than the number of days

provided for in the Constitution of Pennsylvania. Moreover, this

six-day period did not provide any time for the General Assembly

to exercise its constitutional override authority should the

Governor veto the redistricting plan.

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This six-day period clearly, plainly and palpably violated

Article IV, Section 15 of the Constitution of Pennsylvania. By

its express terms, the Order ignored the constitutional time

frame set out for the Governor's consideration of a bill as well

as the constitutional authority of the General Assembly to

override a gubernatorial veto.

In signing this order that blatantly and clearly contradicts

the plain language of the Pennsylvania Constitution, Justice

David N. Wecht engaged in misbehavior in office.

Wherefore, Justice David N. Wecht is guilty of an impeachable

offense warranting removal from office and disqualification to

hold any office or trust or profit in this Commonwealth.

ARTICLE III

In its January 22, 2018 Order, the Pennsylvania Supreme Court

further held that should the General Assembly not submit a

congressional districting plan on or before February 9, 2018, or

should the Governor not approve the General Assembly's plan on

or before February 15, 2018, the Court shall proceed to

expeditiously adopt a plan based on the evidentiary record

developed in the Commonwealth Court. This order by the

Pennsylvania Supreme Court completely disregards the tenets of

the United States Constitution.

In a related Order of the Court dated February 7, 2018, a

fellow Justice on the Court recognized the gravity of the

Court's order in his concurring and dissenting opinion. He

stated, "the Court's remedy threatens the separation of powers

dictated by Article I, Section 4 of the United States

Constitution by failing to allow our sister branches sufficient

time to legislate a new congressional districting map,

potentially impinges upon the due process rights of the parties

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at bar..." League of Women Voters v. Commonwealth, 645 Pa. 1,

136, 178 A.3d 737, 826 (2018). Article 1, Section 4 of the

United States Constitution gives authority regarding the "Times,

Places and Manner of holding Elections for Senators and

Representatives" only to state legislatures and Congress. In

this unprecedented case, by issuing their January 22, 2018

Order, the Pennsylvania Supreme Court has, in contravention to

the express grant of authority in the United States

Constitution, arrogated unto itself this legislative authority.

On February 19, 2018, the Court issued a Per Curiam opinion

and order, with Justice Wecht and three other Justices of the

Supreme Court arrogating to themselves the task of drawing

Congressional Districts. In his dissenting opinion, the Chief

Justice noted,"... the adoption of a judicially created

redistricting plan apparently upon advice from a political

scientist who has not submitted a report as of record nor

appeared as a witness in any court proceeding in this case; and

the absence of an adversarial hearing to resolve factual

controversies arising in the present remedial phase of this

litigation." League of Women Voters of Pennsylvania v.

Commonwealth, 645 Pa. 576, 626, 181 A.3d 1083, 1121-22 (2018).

He said, "In these circumstances, the displacement to the

judiciary of the political responsibility for redistricting-

which is assigned to the General Assembly by the United States

Constitution-appears to me to be unprecedented." Id. at 1122.

In joining an Order of the Supreme Court that blatantly and

clearly contradicts the plain language of the United States

Constitution, Justice David N. Wecht engaged in misbehavior in

office.

Wherefore, Justice David N. Wecht is guilty of an impeachable

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offense warranting removal from office and disqualification to

hold any office or trust or profit under this Commonwealth.

ARTICLE IV

In July of 2019, Justice Wecht authored the opinion in

Pennsylvania Restaurant and Lodging Association v. Pittsburgh,

re-writing provisions of the Commonwealth's Home Rule Charter

and Optional Plans Law and Disease Prevention and Control Law of

1955 to manufacture authority to compel employers within the

City of Pittsburgh to provide paid sick leave to their

employees. 211 A.3d 810 (Pa. 2019). In doing so, Justice Wecht

transgressed the Separation of Powers between the legislative

and judicial branches of State government.

The law, codified as 53 Pa.C.S. § 2962, provides for

limitations on ability of a municipality which adopts a home

rule charter in the regulation of businesses and employment. The

law states, in part, that home rule municipalities "shall not

determine duties, responsibilities or requirements placed upon

businesses, occupations and employers, including the duty to

withhold, remit or report taxes or penalties levied or imposed

upon them or upon persons in their employment, except as

expressly provided by statutes which are applicable in every

part of this Commonwealth or which are applicable to all

municipalities or to a class or classes of municipalities."

Despite there being no authority "expressly provided by

statutes," Justice Wecht undertook a tortured and circuitous 46-

page analysis of existing State law and manufactured authority

from the words of the Disease Prevention and Control Law of

1955. This law imposes the responsibility for "the prevention

and control of communicable and non-communicable diseases" on

local boards of health and the Department of Health (in the

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absence of a local board). Despite the command in the law that

such authority be "expressly provided" for such ordinances to be

within the municipality's legitimate authority, Justice Wecht

found authority which was at-best implied under the Disease

Prevention and Control Law of 1955 satisfied the "express"

requirements.

The Disease Prevention and Control Law of 1955 grants local

boards of health and the Department of Health authority over

individuals who are infected with a communicable or non-

communicable disease and who have been exposed to such

individuals and, grants authority to isolate, quarantine and

surveille only these two classes of individuals. Nowhere in the

Disease Prevention and Control Law of 1955, or elsewhere in

Pennsylvania law, is there an expressed grant of authority to

municipalities to compel private businesses to provide paid sick

leave.

In re-writing the statute, by striking the word "expressly"

in the law and replacing it with "impliedly," Justice Wecht

exercised authority that is solely vested in the legislative

branch under Article II, Section 1 of the Constitution of

Pennsylvania. This transgression of the separation of powers

between co-equal branches of government evidences that Justice

David N. Wecht engaged in misbehavior in office.

Wherefore, Justice David N. Wecht is guilty of an impeachable

offense warranting removal from office and disqualification to

hold any office of trust or profit under this Commonwealth.

ARTICLE V

In July 2020, Justice Wecht authored the majority opinion

Wolf v. Scarnati, blatantly violating the separation of powers

between the legislative and judicial branches of government. 233

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A.3d 679 (Pa. 2020).

The question in Wolf v. Scarnati was whether a concurrent

resolution seeking to compel the Governor to end a state of

emergency required presentment under Article III, Section 9 of

the Constitution of Pennsylvania. The statute at issue, codified

at 35 Pa.C.S. § 7301(c), provides that "[t]he General Assembly

by concurrent resolution may terminate a state of disaster

emergency at any time. Thereupon, the Governor shall issue an

executive order or proclamation ending the state of disaster

emergency." The statute, enacted in 1978, did not provide a

mechanism for presentment to the Governor. By the plain reading

of the words of the law, presentment to the Governor was not

envisioned by the General Assembly of 1978.

In holding the statute to be unconstitutional, Justice Wecht

re-wrote the statute to add a presentment provision to the law.

As articulated by a fellow Justice of the Court, Justice Wecht

amended the law as follows:

The General Assembly by concurrent resolution may

terminate a state of disaster emergency at any time. [The

Governor may then approve or veto the resolution. If the

resolution is approved by the Governor or his veto is

overridden, t]hereupon, the Governor shall issue an

executive order or proclamation ending the state of

disaster emergency.

Wolf, 233 A.3d at 709.

The plain language of the statute stands as a clear

expression of legislative intent by the General Assembly of 1978

to avoid presentment to the Governor. According to his fellow

Justice, Wecht's effort to re-write the statute or ignore its

plain language "is merely a means to the same end - i.e.,

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permitting the constitutional requirement of presentment to be

satisfied notwithstanding the fact that the statute explicitly

aims to avoid exactly that." Id. at 712

Justice Wecht's opinion in Wolf v. Scarnati is at tension

with long-standing jurisprudence on severability of

unconstitutional laws, including an opinion authored by Justice

Wecht himself.

In Protz v. Workers' Compensation Appeal Board, Justice Wecht

gave a strict reading of the Worker's Compensation Act on the

use of impairment ratings from the American Medical Association

in making determinations of the level of disability for workers'

compensation, and struck down the law. 639 Pa. 645, 161 A.3d 827

(2017). The law provided that physicians should make these

determinations "pursuant to the most recent edition of the

American Medical Association 'Guide to the Evaluation of

Permanent Impairment.'" At the time the law was enacted, the

Fourth Edition of the AMA Guides was being used. For the sake of

"constitutional avoidance," and the appearance of impartiality

and consistency, Justice Wecht could have simply struck the

words "most recent" and added the word "Fourth." He did not.

Strikingly, Justice Wecht found it constitutionally tenable

in Wolf v. Scarnati to add 22 words that the General Assembly

did not include in the law, while finding it constitutionally

untenable in Protz to replace two words with one.

By re-writing the statute under the auspices of

"constitutional avoidance," Justice Wecht frustrated the intent

of the General Assembly of 1978 and exercised authority that is

vested in the legislative branch under Article II, Section 1 of

the Constitution of Pennsylvania. This violation of his

obligation to uphold the Constitution of Pennsylvania evidences

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that Justice David N. Wecht engaged in misbehavior in office.

Wherefore, Justice David N. Wecht is guilty of an impeachable

offense warranting removal from office and disqualification to

hold any office of trust or profit under this Commonwealth.

ARTICLE VI

The Pennsylvania Supreme Court adopted Rule 2.11(A)(4) of the

Code of Judicial Conduct, which governs recusals and provides

that when "[t]he judge knows or learns that a party, a party's

lawyers, or the law firm of a party's lawyer has made a direct

or indirect contribution to the judge's campaign in "...an

amount that would raise a reasonable concern about the fairness

or impartiality of the judge's consideration of a case involving

the party..." judges shall disqualify themselves.

In September 2020, the Supreme Court issued its opinion and

order in Pennsylvania Democratic Party v. Boockvar. No. 133 MM

2020, 2020 WL 5554644 (Pa. Sept. 17, 2020). During his 2015

campaign for election to the Pennsylvania Supreme Court, Justice

Wecht received nearly $3.1 million in campaign contributions

during the 2015 election cycle. Nearly 8%, or $224,910.24, of

his reported campaign funds were contributed by the petitioners

in Pennsylvania Democratic Party v. Boockvar.

Rule 2.11(A) of the Code of Judicial Conduct establishes

unequivocally that any judge, including a Justice of the Supreme

Court, "shall disqualify himself or herself in any proceeding in

which the judge's impartiality might reasonably be questioned."

A judge's impartiality might reasonably be questioned-and a

judge must disqualify himself or herself-when "the judge, while

a judge or judicial candidate, has made a public statement,

other than in a court proceeding, judicial decision, or opinion,

that commits the judge to reach a particular result or rule in a

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particular way in the proceeding or controversy." Rule 2.11(A)

(5).

According to the commentaries on this Rule, there is no

amount specified that would require recusal or disqualification,

but rather "the nature of the inquiry is an objective one

involving the public perception of large contributions and their

effect on the judge's ability to be impartial...A contribution

of several thousand dollars will almost always require an

analysis of whether disqualification is warranted...[T]he effect

of contributions will generally dissipate over time. The larger

the contribution, the longer it will take to dissipate."

Statement of Policy Regarding Disqualification Based on Campaign

Contributions Under Rule 2.11(A)(4) published at 46 Pa.B. 6969

(November 5, 2016).

Justice Wecht, writing for the majority in Commonwealth v.

Koehler (2020), addressed the issue of recusal. He stated that a

challenge to an appellate judge's bias may be heard under the

Post Conviction Relief Act because, "'[d]ue process demands the

absence of judicial bias.' And a litigant's due process rights

are violated if a biased appellate judge decides the fate of the

litigant's appeal." 229 A.3d 915, 931 (Pa. 2020) (citations

omitted). Donations of large sums of money to a Justice's

campaign by a party to litigation must be disclosed so that the

parties may weigh the efficacy of an application for

disqualification of that Justice.

Justice Wecht had an obligation to disclose these

contributions to the parties under the Court's Rules of Judicial

Conduct. This failure to disclose evidences that Justice David

N. Wecht engaged in misbehavior in office.

Wherefore, Justice David N. Wecht is guilty of an impeachable

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offense warranting removal from office and disqualification to

hold any office of trust or profit under this Commonwealth.

ARTICLE VII

Justice Wecht, who as a Pennsylvania Supreme Court Justice

took an oath to support, obey and defend the Constitutions of

the United States and the Commonwealth of Pennsylvania, and to

discharge the duties of his office with fidelity, and who is

bound to uphold the integrity of the judiciary, to avoid

impropriety and the appearance of impropriety, and to perform

the duties of his office impartially, did, through actions

including:

(1) failing to abide by the Pennsylvania Code of

Judicial Conduct and thereby depriving parties of their

rights to Due Process guaranteed under the United States

Constitution and the Constitution of Pennsylvania in League

of Women Voters of Pennsylvania v. Commonwealth;

(2) violating Article IV, Section 15 of the Constitution

of the Commonwealth of Pennsylvania in League of Women Voters

of Pennsylvania v. Commonwealth;

(3) violating Article I, Section 4 of the Constitution

of the United States of America in League of Women Voters of

Pennsylvania v. Commonwealth;

(4) exercising authority that is solely vested in the

legislative branch under Article II, Section 1 of the

Constitution of the Commonwealth of Pennsylvania in

Pennsylvania Restaurant and Lodging Association v.

Pittsburgh;

(5) exercising authority that is solely vested in the

legislative branch under Article II, Section 1 of the

Constitution of the Commonwealth of Pennsylvania in Wolf v.

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Scarnati;

(6) failing to abide by the Canons of Judicial Ethics

embodied in the Pennsylvania Code of Judicial Conduct to

disclose his potential bias to the parties in Pennsylvania

Democratic Party v. Boockvar;

undermine confidence in the integrity and impartiality of the

judiciary and betray the trust of the people of the Commonwealth

of Pennsylvania, thereby bringing disrepute on the courts of the

Commonwealth, and rendering Justice Wecht unfit to continue to

serve as a Justice of the Supreme Court of Pennsylvania.

Wherefore, Justice David N. Wecht is guilty of an impeachable

offense warranting removal from office and disqualification to

hold any office of trust or profit under this Commonwealth.

The House of Representatives hereby reserves to itself the

right and ability to exhibit at any time hereafter further

Articles of Impeachment against Justice David N. Wecht, to reply

to any answers which Justice Wecht may make to any Articles of

Impeachment which are exhibited and to offer proof at trial in

the Senate in support of each and every Article of Impeachment

which shall be exhibited by them.

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