THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY CUTLER, CREIGHTON, EVERETT, MARSICO, MILNE, MOUL, MULLERY, MUNDY, MURT, PAYTON, QUINN, ROSS AND SCHRODER, AUGUST 22, 2011

REFERRED TO COMMITTEE ON JUDICIARY, AUGUST 22, 2011  

A JOINT RESOLUTION

Proposing integrated amendments to the Constitution of the

Commonwealth of Pennsylvania, changing and adding provisions

relating to selection of justices and judges.

The General Assembly of the Commonwealth of Pennsylvania

hereby resolves as follows:

Section 1.  The following integrated amendments to the

Constitution of Pennsylvania are proposed in accordance with

Article XI:

(1)  That section 8(b) of Article IV be amended to read:

§ 8.  Appointing power.

* * *

(b)  [The] Except as provided in Article V, the Governor

shall fill vacancies in offices to which he appoints by

nominating to the Senate a proper person to fill the vacancy

within 90 days of the first day of the vacancy and not

thereafter. The Senate shall act on each executive nomination

within 25 legislative days of its submission. If the Senate has

not voted upon a nomination within 15 legislative days following

such submission, any five members of the Senate may, in writing,

request the presiding officer of the Senate to place the

nomination before the entire Senate body whereby the nomination

must be voted upon prior to the expiration of five legislative

days or 25 legislative days following submission by the

Governor, whichever occurs first. If the nomination is made

during a recess or after adjournment sine die, the Senate shall

act upon it within 25 legislative days after its return or

reconvening. If the Senate for any reason fails to act upon a

nomination submitted to it within the required 25 legislative

days, the nominee shall take office as if the appointment had

been consented to by the Senate. [The] Except as provided in

Article V, the Governor shall in a similar manner fill vacancies

in the offices of Auditor General, State Treasurer, [justice,

judge, justice of the peace] judge, magisterial district judge 

and in any other elective office he is authorized to fill. In

the case of a vacancy in an elective office, a person shall be

elected to the office on the next election day appropriate to

the office unless the first day of the vacancy is within two

calendar months immediately preceding the election day in which

case the election shall be held on the second succeeding

election day appropriate to the office.

* * *

(2)  That section 13 of Article V be amended to read:

§ 13.  [Election] Selection of justices, judges and [justices of

the peace] magisterial district judges; vacancies.

(a)  [Justices, judges] Judges, other than judges of the

Superior Court and the Commonwealth Court, and [justices of the

peace] magisterial district judges shall be elected at the

municipal election next preceding the commencement of their

respective terms of office by the electors of the [Commonwealth

or the] respective districts in which they are to serve.

(b)  A vacancy in the office of [justice, judge or justice of

the peace] judge, other than judge of the Superior Court and the

Commonwealth Court, or magisterial district judge shall be

filled by appointment by the Governor. The appointment shall be

with the advice and consent of two-thirds of the members elected

to the Senate, except in the case of [justices of the peace]

magisterial district judges which shall be by a majority. The

person so appointed shall serve for a term ending on the first

Monday of January following the next municipal election more

than ten months after the vacancy occurs or for the remainder of

the unexpired term whichever is less.[, except in the case of

persons selected as additional judges to the Superior Court,

where the General Assembly may stagger and fix the length of the

initial terms of such additional judges by reference to any of

the first, second and third municipal elections more than ten

months after the additional judges are selected.] The manner by

which any additional judges are selected shall be provided by

this section for the filling of vacancies in judicial offices.

(b.1)  (1)  The Governor shall appoint each justice of the

Supreme Court and judge of the Superior Court and the

Commonwealth Court to the initial term of that justice or judge.

The Governor shall nominate to the Senate individuals for

appointment exclusively from the list of individuals recommended

for appointment by the Appellate Court Nominating Commission

described under section 14(a), and the appointment shall be with

the advice and consent of a majority of the members elected to

the Senate. Within 30 days after receiving a list of

recommendations from the commission, the Governor shall nominate

to the Senate one person from the list to fill the vacancy for

which the list was submitted. The Senate shall act on each

nomination of a justice of the Supreme Court or judge of the

Superior Court and the Commonwealth Court within 15 legislative

days after receiving the nomination from the Governor and shall

notify the Governor of the action it took within 24 hours of

taking it. If the nomination is made during a recess or after

adjournment sine die, the Senate shall act upon it within 15

legislative days after its return or reconvening and notify the

Governor as provided in this subsection.

(2)  If the Senate fails to act upon a nomination submitted

to it within the required number of legislative days after

submission by the Governor, the nominee shall take office as if

the appointment had been consented to by the Senate. The

Governor shall make a substitute nomination from the

commission's list within 30 days after receiving notification

from the Senate of the rejection of a prior nominee, and the

Senate shall act upon the nomination in the manner prescribed in

this subsection. If the Senate rejects a total of three

nominations made for a specific vacancy, the commission shall

appoint any other person on the list and the appointee shall

take office upon notification of the appointment by the

commission and neither the Governor nor the Senate shall

participate further in the appointment process for that vacancy.

(b.2)  A vacancy in the office of justice of the Supreme

Court or judge of the Superior Court or the Commonwealth Court

shall be filled by the procedure provided in section 13(b.1)(1).

Additional judges to the Superior Court or the Commonwealth

Court shall be selected as provided in section 13(b.1)(1).

(c)  The provisions of section 13(b) and (b.2) shall not

apply [either] in the case of a vacancy to be filled by

retention election as provided in section 15(b)[, or]. Section

13(b) shall not apply in the case of a vacancy created by

failure of a [justice or] judge to file a declaration for

retention election as provided in section 15(b). In the case of

a vacancy occurring at the expiration of an appointive term

under section 13(b), the vacancy shall be filled by election as

provided in section 13(a).

[(d)  At the primary election in 1969, the electors of the

Commonwealth may elect to have the justices and judges of the

Supreme, Superior, Commonwealth and all other statewide courts

appointed by the Governor from a list of persons qualified for

the offices submitted to him by the Judicial Qualifications

Commission. If a majority vote of those voting on the question

is in favor of this method of appointment, then whenever any

vacancy occurs thereafter for any reason in such court, the

Governor shall fill the vacancy by appointment in the manner

prescribed in this subsection. Such appointment shall not

require the consent of the Senate.]

(e)  Each justice or judge of the Superior Court or the

Commonwealth Court appointed by the Governor under section

[13(d)] 13(b.1) or (b.2) shall hold office for an initial term

ending the first Monday of January following the next municipal

election more than [24] 48 months following the appointment.

(3)  That section 14 of Article V be amended to read:

§ 14.  [Judicial Qualifications] Appellate Court Nominating

Commission.

[(a)  Should the method of judicial selection be adopted as

provided in section 13 (d), there shall be a Judicial

Qualifications Commission, composed of four non-lawyer electors

appointed by the Governor and three non-judge members of the bar

of the Supreme Court appointed by the Supreme Court. No more

than four members shall be of the same political party. The

members of the commission shall serve for terms of seven years,

with one member being selected each year. The commission shall

consider all names submitted to it and recommend to the Governor

not fewer than ten nor more than 20 of those qualified for each

vacancy to be filled.

(b)  During his term, no member shall hold a public office or

public appointment for which he receives compensation, nor shall

he hold office in a political party or political organization.

(c)  A vacancy on the commission shall be filled by the

appointing authority for the balance of the term.]

(a)  There shall be established an independent commission

within the Executive Department known as the Appellate Court

Nominating Commission. The commission shall consist of 15

Pennsylvania residents who are 18 years of age or older. Seven

members shall be public members who shall be selected as

provided by law. Four members shall be appointed by the Governor

and four members shall be appointed by the General Assembly. The

members appointed by the General Assembly shall be appointed as

follows: one each shall be appointed by the President pro

tempore of the Senate, the Minority Leader of the Senate, the

Speaker of the House of Representatives and the Minority Leader

of the House of Representatives.

(b)  The General Assembly shall provide for the nomination of

public members by groups located in Pennsylvania, including bar

associations, civic groups, public safety groups, unions,

business organizations, deans of law schools and other

professional associations of individuals who are not lawyers,

and shall further provide for the selection of public members

from individuals nominated by those groups. No one holding

elective or appointive public office, or designees or appointees

of anyone holding elective or appointive public office, shall

participate in the nomination or appointment of public members,

except that the Secretary of the Commonwealth may be designated

to facilitate the process of nominating and appointing public

members.

(c)  (1)  Each of the members appointed by the General

Assembly shall be members of the bar of the Supreme Court who

are not justices, judges or magisterial district judges. The

members appointed under this paragraph shall be residents of at

least four different counties at the time of appointment and

during their terms. If a member becomes a resident of a county

of that of another member appointed by the General Assembly, the

member shall forfeit his or her membership and the General

Assembly shall appoint another member under this section.

(2)  The members appointed by the Governor shall not be

attorneys licensed to practice law in any state and shall not be

justices, judges or magisterial district judges. The members

appointed under this paragraph shall be residents of at least

four different counties at the time of appointment and during

their terms. If a member becomes a resident of a county of that

of another member appointed by the Governor, the member shall

forfeit his or her membership and the Governor shall appoint

another member under this section. No more than two of the

members appointed by the Governor shall be registered in the

same political party.

(d)  Each member of the commission shall have been a resident

of this Commonwealth for one year prior to that member's

appointment and shall reside in this Commonwealth during that

member's term. In making appointments to the commission, each

nominating or appointing authority shall take into consideration

that the commission should include men and women as well as

individuals who come from racially and ethnically diverse

backgrounds and who reflect the geographic diversity of this

Commonwealth.

(e)  Except for the initial members of the commission, whose

terms shall be provided by law, each member shall be appointed

for a four-year term. Each member shall serve only until the end

of that member's term. A member who has served a full term shall

not be permitted to serve on the commission until four years

have elapsed from the end of that member's term. An appointment

of two years or less, whether by initial appointment or by

appointment to fill an unexpired term, shall not be deemed a

full term. A vacancy shall be filled for the remainder of the

term to which the member was appointed in the same manner as the

vacating member was appointed, except that the General Assembly

may provide for a different manner for filling the vacancy of a

public member.

(f)  No member, during the member's term, shall hold office

in any political party or political organization or hold elected

or appointed public office, compensated or uncompensated, except

that members may serve as part-time solicitors to political

subdivisions. Neither any employee of the unified judicial

system nor any lobbyist shall be eligible for appointment to the

commission. Members shall not be compensated for their services

as members of the commission, but shall be reimbursed for

expenses necessarily incurred in the discharge of their official

duties in accordance with Commonwealth policy in effect for the

Executive Department. Members of the General Assembly shall not

be eligible for appointment to the commission for a period of

one year following their service in the General Assembly.

Members of the Judiciary shall not be eligible for appointment

to the commission for a period of one year following their

service on the Judiciary. Governors and Lieutenant Governors

shall not be eligible for appointment to the commission for a

period of one year following their service as Governor or

Lieutenant Governor.

(g)  The General Assembly may provide for additional

qualifications of members of the commission, not inconsistent

with this article, as it deems appropriate in furthering the

purposes of this article.

(h)  Whenever a vacancy occurs in the office of justice of

the Supreme Court or judge of the Superior Court or the

Commonwealth Court, the commission shall publicly announce the

vacancy and solicit applications. When it is known that a

vacancy on the Supreme Court, the Superior Court or the

Commonwealth Court will occur in the future on a date certain,

the selection process shall begin no later than 90 days prior to

that date. From the applications received, the commission shall

agree, by the affirmative votes from at least eight of the

members, on a list of five individuals most qualified to hold

the office and shall submit the list to the Governor. Only one

list may be supplied by the commission for each vacancy. In

making their selection, the members shall consider each

applicant's qualifications and each person whose name is

submitted to the Governor shall:

(i)  be a licensed member of the bar of the Supreme Court in

good standing;

(ii)  have practiced law, served as a judge of a Federal

court, served on a court or courts of record of this

Commonwealth or been engaged in a law-related occupation for an

aggregate of at least ten years prior to the date of the

nomination; and

(iii)  have demonstrated integrity, judicial temperament,

professional competence and experience and commitment to the

community.

The commission shall consider that each of the appellate courts

should include both men and women who come from racially and

ethnically diverse backgrounds and who reflect the geographic

diversity of this Commonwealth.

(i)  The General Assembly may provide for other procedural

provisions relating to the nomination of justices and judges,

not inconsistent with this article, as it may deem necessary to

carry out the purposes of this article.

(j)  The commission shall be provided with staff and its

budget administered as provided by law. The budget request for

the commission shall be made as a separate item in the

Governor's budget submitted pursuant to section 12(a) of Article

VII.

(4)  That section 15 of Article V be amended to read:

§ 15.  Tenure of justices, judges and [justices of the peace]

magisterial district judges.

(a)  [The] Except as provided in section 13(e), the regular

term of office of justices and judges shall be ten years and the

regular term of office for judges of the municipal court and

traffic court in the City of Philadelphia and of [justices of

the peace] magisterial district judges shall be six years. The

tenure of any justice or judge shall not be affected by changes

in judicial districts or by reduction in the number of judges.

(b)  A justice or judge [elected under section 13(a),] of the

Superior Court or the Commonwealth Court appointed under section

[13(d)] 13(b.1) or (b.2) or retained under this section 15(b) or

a judge elected under section 13(a) or retained under this

section 15(b) may file a declaration of candidacy for retention

election with the officer of the Commonwealth who under law

shall have supervision over elections on or before the first

Monday of January of the year preceding the year in which [his]

the term of office of the justice or judge expires. If no

declaration is filed, a vacancy shall exist upon the expiration

of the term of office of such justice or judge, to be filled by

[election under section 13(a) or by appointment under section

13(d) if applicable] appointment under section 13(b.1) or by

election under section 13(a). If a justice or judge files a

declaration, [his name] the name of the justice or judge shall

be submitted to the electors without party designation, on a

separate judicial ballot or in a separate column on voting

machines, at the municipal election immediately preceding the

expiration of the term of office of the justice or judge, to

determine only the question whether [he] the justice or judge 

shall be retained in office. If a majority is against retention,

a vacancy shall exist upon the expiration of [his] the term of

office of that justice or judge, to be filled by appointment

under section 13(b) or [under section 13(d) if applicable]

(b.2). If a majority favors retention, the justice or judge

shall serve for the regular term of office provided herein,

unless sooner removed or retired. At the expiration of each term

a justice or judge shall be eligible for retention as provided

herein, subject only to the retirement provisions of this

article.

Section 2.  (a)  Upon the first passage by the General

Assembly of these proposed constitutional amendments, the

Secretary of the Commonwealth shall proceed immediately to

comply with the advertising requirements of section 1 of Article

XI of the Constitution of Pennsylvania and shall transmit the

required advertisements to two newspapers in every county in

which such newspapers are published in sufficient time after

passage of these proposed constitutional amendments.

(b)  Upon the second passage by the General Assembly of these

proposed constitutional amendments, the Secretary of the

Commonwealth shall proceed immediately to comply with the

advertising requirements of section 1 of Article XI of the

Constitution of Pennsylvania and shall transmit the required

advertisements to two newspapers in every county in which such

newspapers are published in sufficient time after passage of

these proposed constitutional amendments. The Secretary of the

Commonwealth shall submit the proposed constitutional amendments

under section 1 to the qualified electors of this Commonwealth

as a single ballot question at the first primary, general or

municipal election which meets the requirements of and is in

conformance with section 1 of Article XI of the Constitution of

Pennsylvania and which occurs at least three months after the

proposed constitutional amendments are passed by the General

Assembly.