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Pennsylvania

Ethical issues against Pennsylvania justices unlikely to derail gerrymandering case, experts say

| Monday, Feb. 5, 2018, 5:15 p.m.

Ethics questions involving two Pennsylvania Supreme Court justices involved in the congressional district redrawing case are unlikely to change its outcome, legal experts said.

At issue is a state Supreme Court decision last month that ruled the current map of 18 districts unconstitutionally favors Republicans. The court ordered the General Assembly to come up with a new map by Feb. 15 or the court will draw its own.

House Speaker Mike Turzai and Senate President Joseph Scarnati, both Republicans, filed a motion arguing that Justice David Wecht should have removed himself from hearing the case because of statements he made in 2015 while campaigning for office.

They also filed an emergency motion with the U.S. Supreme Court to stay the state high court's order, but Justice Samuel Alito denied that motion Monday.

In a separate development first reported by Mother Jones, state Justice Sallie Mundy failed to disclose at the start of the case that her campaign received $25,000 from Scarnati's political action committee. After the lawsuit was filed, two Republican congressmen donated $1,000 each to her campaign.

Mundy filed an amended disclosure notice Monday with lawyers on both sides.

“I apologize in my delay and oversight in disclosing this contribution,” Mundy wrote. “I assure you that I can impartially and objectively participate in the consideration and decision of this case.”

“If I had to bet money, I would bet that neither one would result in disqualification,” said Charles Geyh, an Indiana University law professor who studies judicial conduct and ethics.

Judicial candidates have a First Amendment right to take a position on issues that could come before them but can't say how they would vote in a particular case, he said.

Wecht's comments, as reported in the Republican leaders' motion, are a close call, he said.

“He really does seem to be straddling that line,” Geyh said.

Persuading a court that a judge is biased is an uphill climb, and waiting until after the ruling to raise the issue doesn't help, he said.

“There is a default in favor of judges being impartial,” Geyh said.

Failing to disclose campaign contributions from participants in a lawsuit also is a concern, but the case law in that area suggests that the amounts need to be at least in the hundreds of thousands of dollars before they raise that concern, he said.

“Judge Mundy has done nothing wrong, period,” said Bruce Ledewitz, a Duquesne University law professor who studies constitutional law.

The campaign donations are an example of the conflict that occurs between the rules of judicial ethics and the fundraising that candidates have to do to get elected, he said.

“A judge running on the Republican ticket is going to get support from the Republican Party. A judge running on the Democratic ticket is going to get support from the Democratic Party,” he said.

The timing of the motion involving Wecht's comments also makes it unlikely that he'll be removed, Ledewitz said.

“You're supposed to file these things before the case starts,” he said.

The Supreme Court made the right decision about the constitutionality of the districts but erred in trying to rush through a fix, he added.

After making a “good government” decision, the justices have “made it look partisan by their haste. That's unfortunate,” Ledewitz said.

Brian Bowling is a Tribune-Review staff writer. Reach him at 724-850-1218, bbowling@tribweb.com or via Twitter @TribBrian.

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