In Commonwealth Court Democratic Primary, choices abound

For Democratic voters going to the polls tomorrow, there is a wide array of choices in the May 16 primary election for what may be the most important job in Pennsylvania that far too few voters properly understand.

Pennsylvania is the only state in the union that deploys two kinds of mid-level appellate court. The nine-member Commonwealth Court specializes in actions involving disputes between government agencies, or between citizens and government agencies. So it functions in a world apart from ordinary criminal and civil law.

Commonwealth Court’s missions are two-headed – and even contradictory – in style.

On the one hand, it deals with controversies over major public initiatives. The constitutionality of the voter ID law wended its appellate way through this court. Philadelphia’s soda tax is currently on the same path. Duels between municipalities and the General Assembly over Marcellus Shale regulations move through this court. Gerrymandering is in its purview. These are collisions over how to judge “good government” that can affect many lives in many ways.

Thus expertise in constitutional law, both state and national, is crucial in this venue. Ideally, Commonwealth Court’s job is to do most of the Pennsylvania Supreme Court’s work for it on complex legislative and regulatory questions.

At the same time, Commonwealth Court is the first stop above a county court for routine citizens’ appeals of regulatory rulings. If you wish to contest your municipal water bill or your parking ticket or your support order or your unemployment compensation all the way, you will file there.

As a result, Commonwealth Court handles a large number of pro se actions, earning it the sobriquet, “the People’s Court.”

Politics matters in Pennsylvania judicial elections. Currently, there are six elected Republicans and one elected Democrat on this nine-member court. Gov. Tom Wolf appointed two Democrats to this body last year; one of them, Judge Joe Cosgrove of Lackawanna County, is among the six running in this month’s primary. The Dems would dearly like to lock in three seats this November. Whom they pick matters, then, for tackling the Republican slate in an off-year general election, when Republicans often see a voter turnout edge.

The forum was co-hosted by Pennsylvanians for Modern Courts (the merit-selection advocate) and the Philadelphia Bar Association. Stradley Ronon attorney Karl Myers moderated the event and posed all the questions – touching the themes that try appellate lawyers’ souls.

The five Democratic candidates who appeared at a forum in Philadelphia on May 3 are battling for one of the two seats on Commonwealth Court, and all were recommended by the Pennsylvania Bar Association. (Former Allegheny County Municipal Court Judge Irene Clark was not recommended and did not attend.)

In addition to Cosgrove, in the Democratic running are State Rep. Bryan Barbin (D-Cambria); Timothy Barry of Allegheny County, a public-sector labor lawyer; Philadelphia Common Pleas Court Judge Ellen Ceisler; and Todd Eagen, a Lackawanna County labor lawyer who is making his second run for this office.

All these candidates possess major appellate experience. They tend to agree on several policy directions as well.

They would like to see more published opinions, which offer more guidance to lawyers on future cases than does a bare-bones decision. They would like to see more venues for their sessions – currently limited to Pittsburgh, Harrisburg and Philadelphia – in other parts of the state, to make them more accessible to the public. They want more oral hearings. They would seek ways to counsel and facilitate pro se appellants. They are sympathetic to the plight of immigrants in the Trump era.

Running for judge rules out negative campaigning in advance. Any two of these candidates must be able to team up with each other should they both be elected. This results in a campaign pleasantly free of bashing rivals.

But each candidate must emphasize their particular virtues in order to make it past the primary.

Eagen is a blood candidate, with a grandfather who served on the Pennsylvania Supreme Court. “No appellate attorney bests my experience in Commonwealth Court,” he maintained, asserting more of his practice takes place in that body than in Common Pleas Courts. His union credentials are strong. And (although he did not say this) he has worked hard over the years to hook up with Southeastern Pennsylvania Democrats.
Judge Cosgrove properly boasted he was the only candidate graded “highly qualified.” This, and the fact he was nominated by a Democratic governor but was unanimously confirmed by the Republican General Assembly, bespeaks his reputation. Furthermore, he noted, “I teach constitutional and election law at Kings College.” As a sitting Commonwealth Court judge, he played a role in deciding that US Sen. Ted Cruz’s birth in a foreign nation (Canada) did not disqualify him from running for president.

Judge Ceisler noted her varied career as a CBS reporter and the head of the Philadelphia Police Department’s Integrity & Accountability Office. After being elected judge in 2007, she wound up managing Civil Motions Court, an office within the 1st Judicial District that plans cases destined for Commonwealth Court. “I have written more than 500 opinions,” she said. And she asserted that Philadelphia, with more than one-ninth of Pennsylvania’s population, deserves at least one seat on Commonwealth Court – especially when Philadelphia’s fate is being decided.

Barry also comes from a lineage: his father served on Commonwealth Court. In a sense, then, he grew up with it. He is deep in education law, a hot topic in the Keystone State these days. He touted that he had won a job-harassment case for a waitress. And he offered an emotional bona fide: Having a son with a long-term disability has taught him patience and empathy. “I have learned how to listen to people,” he said.

Barbin noted that he is the only legislator in the running. Since much of this court’s business involves interpreting legislation, he argued his voice would contribute value. For pro se appellants, he proposed, “Perhaps the state’s law schools can get law students to work with them." He also stood out as an unabashedly Christian interpreter of the law – not many attorneys cite Leviticus 15 in an argument these days – a stance that may play well in Midstate, where Trump shellacked Clinton and where Democrats must regain ground.

Eagen has received the endorsement of the Democratic Party of Pennsylvania, leaving the other five candidates in effect to curry as much favor with various county committees as they can. That would seem to work to the advantage of Ceisler and Barry, who start with the two largest bases of Democratic voters in their home counties.

It is impossible for any Democratic Commonwealth Court candidates to replicate the party’s 2015 coup in the Supreme Court, when they swept all three slots at stake to establish firm Democratic control of that body. Two Republican incumbents will come up for retention in 2019, but these races are rarely lost. A third will age out in 2022 but the rest of their bench is nowhere near 75.

So the Democrats must play a long game. If both of their candidates are elected to Commonwealth Court this year, they may move up to a 4-5 minority in a few years. That would position them to be influential in this quietly powerful body as the 2020s play out.