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  

AN ACT

Amending Title 71 (State Government) of the Pennsylvania

Consolidated Statutes, establishing the Appellate Court

Nominating Commission.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 71 of the Pennsylvania Consolidated

Statutes is amended by adding a part to read:

PART III

JUDICIAL MATTERS

Chapter

21.  Appellate Court Nominating Commission

CHAPTER 21

APPELLATE COURT NOMINATING COMMISSION

Sec.

2101.  Definitions.

2102.  Establishment and purpose.

2103.  Membership, qualifications and operation.

2104.  Judicial nominee applicants.

§ 2101.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Bar association."  An organization that represents the

interests of its members who are members of the bar of the

Supreme Court and who practice in the legal profession. The term

does not include any association that does not have a majority

of members who are Commonwealth residents.

"Business organization."  An organization that represents the

interests of persons engaged in commercial, industrial or

agricultural enterprises.

"Civic group."  A Pennsylvania nonprofit corporation that is

exempt from Federal income tax under section 501(c)(3) of the

Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §

501(c)(3)). The term does not include any organization formed

for a religious purpose or any organization that does not have a

majority of members who are Commonwealth residents.

"Commission."  The Appellate Court Nominating Commission

established under section 14 of Article V of the Constitution of

Pennsylvania and under section 2102 (relating to establishment

and purpose).

"Department."  The Department of State of the Commonwealth.

"Law school."  A graduate school located in this

Commonwealth, accredited by the American Bar Association and

offering study leading to the degree of Juris Doctor.

"Law school dean" or "dean."  The administrator in charge of

a law school.

"Lobbyist."  As defined in 65 Pa.C.S. § 13A03 (relating to

definitions).

"Professional association."  An organization that represents

the interests of its members who practice a profession. The term

does not include associations that represent lawyers or any

association that does not have a majority of members who are

Commonwealth residents.

"Public members."  Members of the commission appointed under

section 2103(a)(3) (relating to membership, qualifications and

operation).

"Public safety association."  An organization that represents

the interests of its members who are engaged in an occupation

responsible for public safety, including law enforcement

agencies, victims' rights groups, fire departments or emergency

medical service providers. The term does not include

associations that represent attorneys or any association that

does not have a majority of members who are Commonwealth

residents.

"Secretary."  The Secretary of the Commonwealth.

"Union."  An organization of employees, not dominated or

controlled by any employer or any employer organization, having

among its purposes that of collective bargaining as to the terms

and conditions of employment. The term includes a federation of

such organizations. The term does not include any organization

that does not have a majority of members who are Commonwealth

residents.

§ 2102.  Establishment and purpose.

Under section 14 of Article V of the Constitution of

Pennsylvania, there is established an Appellate Court Nominating

Commission within the Executive Department. The purpose of the

commission shall be to nominate individuals for the offices of

justice of the Supreme Court and judge of the Superior Court and

Commonwealth Court.

§ 2103.  Membership, qualifications and operation.

(a)  Composition.--The commission shall be comprised of the

following:

(1)  Four legislative appointees. The following shall

apply to the members appointed under this paragraph:

(i)  Appointments are as follows:

(A)  One individual appointed by the President

pro tempore of the Senate.

(B)  One individual appointed by the Minority

Leader of the Senate.

(C)  One individual appointed by the Speaker of

the House of Representatives.

(D)  One individual appointed by the Minority

Leader of the House of Representatives.

(ii)  Each of the members appointed under

subparagraph (i) must be members of the bar of the

Supreme Court but may not be justices, judges or

magisterial district judges.

(iii)  None of the members appointed under

subparagraph (i) may be members of the General Assembly

or their staff or a relative of a member of the General

Assembly. For purposes of this subparagraph, a relative

shall include a spouse, child, mother, father, sister or

brother.

(iv)  The members 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)  Four members appointed by the Governor. The

following shall apply to members appointed under this

paragraph:

(i)  The members may not be attorneys licensed to

practice law in any state and may not be justices, judges

or magisterial district judges.

(ii)  The members 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.

(iii)  No more than two individuals shall be

registered in the same political party.

(iv)  None of the members may be an employee of the

Executive Department or a relative of an employee of the

Executive Department. For purposes of this subparagraph,

a relative shall include a spouse, child, mother, father,

sister or brother.

(3)  Seven public members. The following shall apply to

members appointed under this paragraph:

(i)  One public member shall be a dean of one of the

law schools located in this Commonwealth, who shall be

selected as follows:

(A)  Within 30 days following the effective date

of this section and at least 120 days prior to the

expiration of each term of the law school dean member

of the commission, the secretary shall notify each

law school dean that a majority of the law school

deans are to choose from among themselves a law

school dean to serve as a member of the commission.

(B)  Within 60 days following receipt of the

notification under clause (A), the deans shall choose

who among them will be a member of the commission.

(C)  As soon as practicable following their

selection, the deans shall send a letter to the

secretary, signed by a majority of the deans,

notifying the secretary of their selection.

(D)  Upon expiration of a dean's term on the

commission, the same process shall be used to fill

the vacancy, except that the successor dean shall

come from a different law school than the outgoing

dean.

(ii)  Six public members, one each selected by bar

associations, business organizations, civic

organizations, professional associations, public safety

organizations and unions. The following shall apply to

members selected under this subparagraph:

(A)  Within 30 days following the effective date

of this section and at least 120 days prior to the

expiration of each term of the public members of the

commission other than the law school dean member, the

secretary shall transmit a notice for publication to

two newspapers in every county in this Commonwealth

and to the Legislative Reference Bureau for

publication in the Pennsylvania Bulletin that will

alert the organizations described under subparagraph

(ii) that they may apply to be included in the

process of appointing members of the commission. The

notice shall describe details of the application

process and shall include a form of application to be

used. The notice and the form of application shall be

posted on the department's Internet website.

(B)  An organization described under this

subparagraph that desires to participate in the

nomination process shall submit an application to the

secretary. All applications shall be submitted by the

date occurring 30 days after the date of publication

in the Pennsylvania Bulletin of the notice described

under clause (A) and shall include all of the

following:

(I)  The name and address of the organization

and the name and telephone number of a contact

person. The organization must indicate that its

principal place of business is in this

Commonwealth.

(II)  A statement as to the specific category

for which the organization wishes to be

considered. An organization may only submit an

application for one of the categories listed

under this subparagraph.

(III)  A statement of the number of members

of the organization who are Commonwealth

residents as of the date of the application.

(IV)  Any other information required by the

department. Any person who makes a false

statement on an application submitted under this

subparagraph shall be subject to prosecution

under 18 Pa.C.S. §§ 4903 (relating to false

swearing) and 4904 (relating to unsworn

falsification to authorities).

(C)  Within 15 days following the last day for

receipt of applications under clause (B), the

secretary shall notify the five organizations in each

of the categories listed under this subparagraph with

the highest number of members who are Commonwealth

residents that they are eligible to submit the name

of a person in their organization who meets the

requirements of subsection (b) who desires to be

considered for selection as a member of the

commission. The names shall be submitted in writing

to the secretary within 15 days following receipt of

the notification required under this clause.

(D)  Within ten days following the last day for

receipt of the names of individuals permitted to be

submitted by organizations under clause (C), the

secretary shall publicly draw lots from each of the

six categories of organizations to determine who

shall serve as the public member of the commission

from each category.

(E)  Upon expiration of a public member's term on

the commission, the same selection process shall be

used to fill the vacancy, except as provided in

subsection (c)(4)(iv).

(b)  Qualifications of members.--

(1)  All members of the commission shall have been a

resident of this Commonwealth for at least one year prior to

the member's appointment.

(2)  All members of the commission must be 18 years of

age or older as of the date of their appointment.

(3)  During his or her term a member may not do any of

the following:

(i)  Hold any office in any political party or

political organization or hold any elected or appointed

public office, compensated or uncompensated, except that

members may serve as part-time solicitors to a political

subdivision.

(ii)  Be employed by the unified judicial system.

(4)  No person who is a lobbyist may be appointed to

serve on the commission.

(5)  In making appointments to the commission, each

nominating or appointing authority shall take into

consideration that the commission should include both men and

women, as well as individuals who represent racially and

ethnically diverse backgrounds and who reflect the geographic

diversity of this Commonwealth. 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.

(c)  Terms of office, removal and vacancies.--

(1)  Except as provided under paragraph (2), commission

members shall serve a term of four years.

(2)  Limitations on terms shall be as follows:

(i)  The original members of the commission shall

have the following terms:

(A)  The legislative appointees shall have the

following terms:

(I)  The appointee of the President pro

tempore of the Senate shall serve for four years.

(II)  The appointee of the Speaker of the

House of Representatives shall serve for three

years.

(III)  The appointee of the Minority Leader

of the Senate shall serve for two years.

(IV)  The appointee of the Minority Leader of

the House of Representatives shall serve for one

year.

(B)  The Governor's appointees shall have the

following terms:

(I)  One appointee shall serve for four

years.

(II)  One appointee shall serve for three

years.

(III)  One appointee shall serve for two

years.

(IV)  One appointee shall serve for one year.

(C)  The public members shall serve for four

years.

(ii)  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.

(iii)  For purposes of this paragraph, service for a

period of two years or less shall not be considered a

full term.

(3)  Except as provided in this clause, commission

members may only be removed by a majority vote of the other

members of the commission then serving for a violation of the

commission's rules governing the conduct of members. The

commission shall remove a member who, during the course of

the member's term, no longer meets the qualifications of

subsection (b)(1), (2), (3) or (4).

(4)  In the event of a vacancy on the commission, the

following shall apply:

(i)  If the vacancy occurs for a reason stated under

paragraph (3), the vacancy shall be filled for the

remainder of the term in the same manner the outgoing

member was initially appointed, except that, if the

vacancy is created because a public member selected under

subsection (a)(3)(ii) is removed from the commission, the

organization that appointed the member shall select a new

member.

(ii)  If a vacancy occurs as a result of the

expiration of the term of a legislative or gubernatorial

appointee, a new member shall be appointed in the same

manner as the member was initially appointed.

(iii)  If a vacancy occurs as a result of the

expiration of the term of a public member selected under

subsection (a)(3)(i), the vacancy shall be filled in the

same manner as the member was originally selected.

(iv)  If a vacancy occurs as a result of the

expiration of the term of a public member selected under

subsection (a)(3)(ii), the secretary shall fill the

vacancy in the same manner as the member was initially

selected, except that the organization that nominated the

commission member whose vacancy is being filled may not

be permitted to participate in the process to select the

immediately succeeding commission member.

(d)  Operation.--

(1)  From among the commission's members, the commission

shall select a chairperson, vice chairperson and other

officers as the commission shall determine.

(2)  The commission shall establish its own rules of

procedure and rules governing the conduct of its members.

(3)  Nine members shall constitute a quorum. A majority

of the members present at any meeting of the commission shall

be required for all actions of the commission.

(4)  Members shall not be compensated for their service

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 agencies under the Governor's jurisdiction.

(5)  The department shall provide administrative support

for the commission.

§ 2104.  Judicial nominee applicants.

(a)  Solicitation.--

(1)  When it is known that a vacancy will occur, the

commission shall publicly announce the vacancy no later than

90 days prior to the expected date of the vacancy.

(2)  If an unexpected vacancy occurs, the commission

shall publicly announce the vacancy within 30 days following

the vacancy.

(3)  The commission shall develop the form of application

to be submitted and shall make the form available at the time

a public announcement regarding a vacancy is made.

Applications may be submitted by individuals desiring to be

considered for nomination to fill a vacancy commencing with

the date of the public announcement and ending on the date

occurring 30 days later.

(b)  Review of applications and evaluation of applicants.--

(1)  The commission shall review and perform an initial

screening of all applications submitted to fill vacancies.

(2)  The commission shall use the initial screening

process to produce a list containing names of those

applicants who meet the requirements outlined in Article V,

section 14(h) of the Constitution of Pennsylvania, with the

goal of including at least 50% of those applicants who

submitted applications. The applicants on the list shall

undergo further evaluation and consideration by the

commission.

(3)  Names and biographical information, including

resumes, educational history, employment history and

community service pertaining to the list of applicants who

will undergo further evaluation and consideration as

discussed in paragraph (2), shall be made public. The

commission may conduct interviews of the applicants on this

list and may interview other individuals with knowledge of

the applicants on this list. These interviews shall be

conducted in executive session. The names and biographical

information of the initial applicants who will not be

considered for further evaluation shall remain confidential.

(4)  The commission may obtain any appropriate or

relevant documentation that relates to the applicant's

suitability to serve as a justice or judge, including

information submitted by the public. The commission shall

have the power to subpoena documents from the Disciplinary

Board of the Supreme Court, the Judicial Conduct Board, the

Court of Judicial Discipline, other agencies of the

legislative, executive and judicial branches and local

agencies and authorities.

(5)  Following its evaluation of the list of applicants

defined in paragraph (2), the commission shall produce a list

of at least eight applicants, provided that eight applicants

are deemed highly qualified, from which the final five

recommended candidates shall be selected. This list of at

least eight applicants shall be made public, and the

applicants on this list shall be interviewed in public

session. The commission may retire to executive session to

conduct further interviews with the applicants, as well as

interviews of others with knowledge of the applicants.

(6)  The commission shall meet in executive session to

deliberate and vote on the applicants.

(c)  Selection.--

(1)  From the applications received and reviewed under

subsection (b), the commission shall agree on five names of

the most qualified applicants whose names will be recommended

to the Governor. In order for an individual's name to appear

on the list, the individual must meet all of the following

requirements:

(i)  Notwithstanding the provisions of section

2103(d)(3), (relating to membership, qualifications and

operation), has received affirmative votes from at least

eight of the members of the commission.

(ii)  Is a licensed member in good standing of the

bar of the Supreme Court.

(iii)  Has either 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.

(iv)  Has demonstrated integrity, judicial

temperament, professional competence and experience and

commitment to the community.

(2)  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.

(d)  Presentation of applicants to the Governor.--

(1)  The list of the most qualified applicants shall be

presented to the Governor no later than 30 days prior to the

expected date of the vacancy or, with respect to an

unexpected vacancy, no later than 60 days after the vacancy

occurs.

(2)  The names of the applicants on the list shall appear

in alphabetical order. The commission shall submit

biographical information regarding each applicant along with

the list of names.

(3)  Only one list may be provided to the Governor for

each vacancy. If there is more than one vacancy on the same

court, separate lists shall be submitted to the Governor for

each vacancy, and the lists shall contain no more than two

names in common.

(4)  In the event of death or withdrawal of a person

whose name appears on the list presented to the Governor, the

commission shall submit to the Governor an addendum to the

list providing the name of a new applicant selected in the

same manner as the other individuals on the list.

(e)  Publication.--

(1)  Immediately following submission to the Governor,

the list shall be submitted to the Senate and shall be made

available to the public.

(2)  Except for the list under paragraph (1), all

information submitted to or developed by the commission

concerning applicants and all executive session proceedings,

deliberations and votes of the commission shall remain

confidential and shall not be subject to disclosure.

Section 2.  The Secretary of the Commonwealth shall transmit

notice to the Legislative Reference Bureau for publication in

the Pennsylvania Bulletin of passage of a constitutional

amendment providing for an Appellate Court Nominating

Commission.

Section 3.  This act shall take effect as follows:

(1)  Section 2 and this section shall take effect

immediately.

(2)  The remainder of this act shall take effect upon

publication of the notice under section 2.