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Pennsylvania Supreme Court election will change course of history

| Saturday, Oct. 31, 2015, 5:47 p.m.

Pennsylvanians will change the course of state history on Tuesday when they elect three new members to the state's highest court.

Yet despite the power of that body, despite a historic high of three open seats and despite record campaign contributions, judicial elections typically produce low-information, low-profile races.

“We have possibly the most important election in the state during a year where most voters don't even bother to come out to vote, let alone pay attention,” said Jeff Brauer, political science professor at Keystone College in Lackawanna County.

In Allegheny and Westmoreland counties, elections officials anticipate turnouts of 28 percent and 32 percent, respectively. In last year's gubernatorial contest, turnout was 41 percent and 45 percent.

Although one of the openings is because Chief Justice Ronald Castille retired in December 2014, the Supreme Court race takes place against a backdrop of scandal, one that experts say overshadows the court's prominence as the nation's oldest appellate court.

One vacancy is the result of Joan Orie Melvin's resignation after a jury convicted the Marshall Republican of campaign corruption charges in 2013. Then former Justice Seamus McCaffery, a Philadelphia Democrat, retired last fall after he was embroiled in a still-unfolding scandal over judicial emails.

The court has hired a Pittsburgh law firm to conduct a second review of potentially insensitive emails linked to Justice Michael Eakin, a former Cumberland County prosecutor who remains on the court.

Jill Family, director at the Law and Government Institute at Widener University Commonwealth Law School near Harrisburg, said the Supreme Court sets the tone for the entire judiciary.

“At this point, the Pennsylvania Supreme Court is best known for scandal,” she said. “Hopefully the infusion of three new justices will put the court back on track.”

The race has drawn about $10.5 million in campaign contributions since the primary election, and more than $8.3 million spent through mid-October — record-breaking amounts, according to The Associated Press. Unions, trial lawyers and special-interest groups have given significant sums, a reality that Brauer said is the result of low voter interest.

“Since it's an odd year, it becomes dominated not by citizens but by trial lawyers and interest groups,” he said. “What's supposed to be a democratic process becomes somewhat undemocratic.”

Long-term ramifications

Tuesday's election has consequences for the next round of redistricting in 2020.

The Supreme Court in some cases chooses the fifth member of the Legislative Reapportionment Commission and approves maps for legislative and congressional districts. Partisans are keeping an eye on the election because the seven-seat court currently leans Republican.

Additionally, the next court could have the final say on issues of local control, such as gun laws or paid sick leave, said Jennifer Rafanan Kennedy, director of strategic campaigns for union-allied nonprofit advocacy group Pittsburgh United.

“People don't realize how much the decisions impact their daily lives,” she said.

Bob Burnett with Downtown law firm Houston Harbaugh is an oil and gas industry attorney who represents property owners. He said the next court might consider cases about underground trespassing related to fracking and “forced pooling” of property, issues that it has not yet considered.

“The Supreme Court, in the context of oil and gas law, can bring clarity and certainty to these areas that would impact not only landowners but industry as well,” he said. “Anytime you have uncertainty or ambiguity, that's not good for anyone.”

Other appellate races

Voters will find other judicial races on the ballot — one of 15 Superior Court seats, and one of nine seats on the Commonwealth Court. These appellate courts are responsible for thousands of decisions each year spanning the criminal justice system and civil courts.

Superior Court filed 5,257 opinions last year, according to statistics from the Administrative Office of Pennsylvania Courts, about 68 percent of which were criminal cases.

Commonwealth Court hears appeals and cases involving the state. In the past five years, the court heard 3,561 original jurisdiction cases; officials estimated about 90 percent were lawsuits against the commonwealth or one of its employees.

All appellate courts matter to the lives of small business owners, said Kevin Shivers, executive director of the Pennsylvania chapter of the National Federation for Independent Businesses. The group endorsed Republican candidates across the board after member surveys and candidate questionnaires, and it encourages get-out-the-vote efforts.

“The courts are the final arbitrator on every law that is enacted in Pennsylvania,” Shivers said. “We've recognized that a healthy judiciary is critically important in terms of good public policy.”

Melissa Daniels is a Trib Total Media staff writer. Reach her at 412-380-8511 or mdaniels@tribweb.com.

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