PRINTER'S NO. 3664
No. 2386 Session of 2008
INTRODUCED BY STEIL, SHAPIRO, BRENNAN, GOODMAN, HENNESSEY,
JOSEPHS, ROSS, THOMAS AND VITALI, MAY 2, 2008
REFERRED TO COMMITTEE ON JUDICIARY, MAY 2, 2008
AN ACT
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.
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 June 21, 1957 (P.L.390,
6 No.212), referred to 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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