Pennsylvania State Ass'n of Jury Commissioners v. Commonwealth

Justice TODD,

dissenting.

I respectfully dissent. While it is indisputable that the legislature may abolish government offices which it has statutorily created, the legislation accomplishing that purpose must, nevertheless, comport with *1039the Pennsylvania Constitution. In my view, Act 4 of 2013 does not do so, as I deem meritorious Appellants’ claim that it violates Article II, Section 1 of the Pennsylvania Constitution because it constitutes an impermissible delegation of legislative power to counties regarding the conduct of a vital part of the operation of our unified judicial system — the jury selection process. In my view, Act 4 is constitutionally infirm because it sub silentio permits counties,1 through the abolition of the office of jury commissioner, to effectively supersede the comprehensive provisions of the Judicial Code which currently govern the jury selection process, while providing no guiding standards to those counties on how they are to carry out the jury selection process after abolition. Further, I consider Act 4 to deleteriously effect the administration of our unified judicial system by substituting the current uniform statutory framework for selecting jurors with a vast and possibly conflicting patchwork of local, ad hoc standards, which may ultimately be as varied as the number of counties in our Commonwealth. I would, therefore, reverse the order of the Commonwealth Court denying Appellants summary relief or, alternatively, pursuant to our supervisory authority over the Pennsylvania Unified Judicial System, promulgate specific rules of procedure to ensure that jury selection procedures remain uniform throughout the Commonwealth.

As recognized by the majority, the Judicial Code specifies that the two jury commissioners for each county do not carry out their myriad duties for effectuating the jury selection process in an individual capacity, but they are authorized to do so only as members of a three-person jury selection commission on which the president judge of the judicial district covering that county is also a member. See 42 Pa.C.S.A. § 2122(a) (“[T]he jury selection commission shall consist of two jury commissioners elected as provided in this section and the president judge of the court of common pleas of the judicial district embracing the county.”); id. § 4521(a)(1) (specifying that “the jury selection commission shall prepare a master list of prospective jurors”); id. § 4521(c) (specifying that “the commission shall select at random from the master list of prospective jurors the number of names designated by the president judge pursuant to court orders [requiring jurors to appear for service]”); id. § 4521(d) & (f) (requiring “the commission” to mail juror qualification forms to prospective jurors and authorizing “the commission” to apply to the court of common pleas to order prospective jurors to fill out the qualification forms); id. § 4522 (requiring “the commission” to determine whether prospective jurors are qualified for jury service and to compile and maintain for public inspection master lists of jurors who are qualified and disqualified for jury service).

Indeed, certain relevant provisions of the Judicial Code specifying the duties of the jury selection commission, as written, cannot be reasonably construed as contemplating that those duties be performed by the president judge acting alone in the dual capacity of both the “commission” and the court of common pleas. Rather, these statutes demarcate a clear division between the commission’s duties as an independent body and the separate responsibilities of the court of common pleas. See 42 Pa.C.S.A. § 4521(f) (“On application by the commission, the court shall compel compliance with subsections (a)(2), (3) and (4) and (d).”); id. § 4524, (providing that “[u]pon receipt of a court order pursuant to section 4531 (relating to issuance of *1040court orders for jurors), the commission shall publicly select at random from the master list or jury wheel such number of names of persons as may be required to be summoned for assignment to jury arrays,” and also requiring that the array be made available at the offices of “the commission” for inspection at least 30 days prior to the first day on which jurors in the array are eligible to serve at a trial); id. § 4581 (providing that orders of the court directing the jury selection commission to select a jury array from the master list shall be issued in conformance with general rules of court); id. § 4532 (specifying that “jurors shall be summoned to serve in a manner determined by the jury selection commission with the concurrence of the president judge.”).

Critically, I note that the Judicial Code also sets a minimum quorum requirement in order for the jury selection commission to take any action — namely, “a majority of its members.” See 42 Pa.C.S.A. § 2122(e) (“Quorum. — A jury selection commission may act by a majority of its members.”). Since each jury commission is required by 42 Pa.C.S.A. § 2122(a) to have three members — a statutory provision that Act 4 did not amend — it may, therefore, act only if two of the three members of the commission authorize the action. If a county’s jury commission ceases to have the requisite three members, because the county has chosen to abolish the two jury commissioners, then, by the plain language of these statutes, the commission is no longer authorized to take any action. Consequently, when a county officially abolishes the office of jury commissioner it is also, in actual effect, eviscerating the jury selection commission as a functional body and depriving it of continuing authority to take any action, which includes performance of the aforementioned duties.

The majority correctly observes that Act 4 did not explicitly abolish the jury commission as a body; however, it also did not repeal or amend any of the aforementioned statutes setting forth the minimum required number of members, or eliminate the statutory requirement that the commission carry out its duties in the jury selection process while acting as a whole. While the majority acknowledges that Act 4 does not alter the statutory requirements setting forth the structure and operation of jury commissions in counties which abolish the office of jury commissioner, the majority nevertheless assures that, after abolishment, the president judge of the judicial district covering the county may, as the sole remaining member of the jury commission, single-handedly carry on at least some of its duties. See Majority Opinion at 1036 (“[F]or a county where the governing body elects to eliminate the elected office of jury commissioner, the president judge ... will ensure that the county continues to compile lists of potential jurors in a manner consistent with the Judicial Code.”). I have no doubt that president judges, who are all very able jurists, are capable of performing such a task, if provided with sufficient administrative and budgetary resources such an undertaking could require. Nevertheless, I respectfully submit that this consideration is irrelevant as there is simply no language in the above-referenced statutes governing the structure and operation of jury commissions which permits the president judge of the judicial district covering a county which has abolished its jury commissioners to act as “a jury commission of one.” Rather, the president judge is strictly limited by those statutes to act as a member of a three person commission.

Further, when the jury commission functions as a three member body, the president judge is not solely responsible for the selection of the members of the jury pool which will be utilized for trials *1041over which he or she may preside. Under those circumstances, the selection process is jointly conducted by all three members of the commission, which, as Appellants point out, was explicitly structured at its inception to give the public confidence that the jury selection process was not within the exclusive purview of any one governmental official. If the commission were to operate with only one member, this would defeat that laudatory purpose, and it would place the president judge in the unenviable position of being solely responsible for selecting the very jurors who will hear eases in his or her courtroom. This is not, in my view, a position he or she should be involuntarily forced to assume, since, under 42 Pa.C.S.A. § 4526, any challenge by a party to a juror array, which will now be selected at the exclusive direction of the president judge, must be heard by his or her court.

Moreover, as Appellants point out, Act 4 provides no corresponding guidance or standards regarding which person or entity will thereafter be responsible for performing the duties of the jury selection commission, or how the jury selection process is to transpire — i.e., whether a newly designated individual or entity must follow the procedures set forth in 42 Pa.C.SA. §§ 4521-4582. The sparse language of Act 4 merely requires county commissioners, prior to abolition of the office of jury commissioner, to conduct a one-time “review of the procedures in effect within the county to ensure that lists of potential jurors are a representative cross section of the community.” 16 P.S. § 401(f). Act 4 does not otherwise specify which “lists” the county commissioners are to review, does not oblige the county commissioners to further maintain those lists, nor, critically, does not contain any requirement that, after their one-time review, the county commissioners must continue to maintain the very procedures which they have concluded resulted in a representative pool of jurors. I regard such a wholesale, stan-dardless delegation of the jury selection commission’s statutory duties to county commissioners in this fashion to be a violation of Article II, Section 1 of the Pennsylvania Constitution.

As our Court reaffirmed in Pennsylvanians Against Gambling Expansion Fund, 583 Pa. 275, 877 A.2d 383 (2005) (“PAGE"), all enactments of the General Assembly must meet two fundamental requirements in order not to run afoul of Article II, Section I, namely: (1) the basic policy choices must be made by the legislature; and (2) the legislation must contain adequate standards which will guide and restrain the exercise of the delegated administrative functions. Id. at 418 (quoting Gilligan v. P.H.R.C., 492 Pa. 92, 422 A.2d 487, 489 (1980)). Here, as discussed above, the only policy choice expressed by the legislature in Act 4 regarding the jury selection process is that county commissioners, before abolishing the office of jury commissioner, must conduct a one-time review of the existing procedures to ensure that the lists of prospective jurors are, at the time of that review, a representative cross section of the community. Act 4 provides no standards for the conduct of the other functions now performed by the jury commissioners as part of the jury selection commission, including the annual preparation of updated master juror lists using methods to secure the broadest possible pool of prospective jurors from the community, maintenance of those lists, and the screening and summoning of prospective jurors. Indeed, Act 4 fails to provide any guidance for implementing an alternative method to carry on the duties of the jury selection commission after the office of jury commissioner is abolished. Act 4, therefore, meets neither of the PAGE requirements and, in my view, is violative of Article II, Section 1. See PAGE (striking provisions of the Gaming Act which per*1042mitted the Gaming Control Board to “consider” local zoning ordinances in deciding whether to issue a license since the act failed to provide adequate standards to govern how the board’s consideration process should proceed). Accordingly, I would reverse the Commonwealth Court on this basis.

Furthermore, in failing to guide counties in the conduct of the jury selection process after abolishing their jury commissioners, and, thus, hobbling their jury commissions, Act 4 has, in my view, the potential to cause disruption to our Unified Judicial System and impedes our Court’s ongoing objective to integrate and harmonize the operation of various court and court-related offices. I do not agree with Appellants’ premise that the mere inclusion within the Judicial Code of the statutory provisions governing the office and duties of jury commissioners renders the office itself judicial in nature, and, as discussed by the majority, our Court has previously characterized jury commissioners as “county staff.” See Majority Opinion at 1034-35 (citing Beckert v. Warren, 497 Pa. 137, 439 A.2d 638, 644 (1981)). Nevertheless, I concur with Appellants’ assertion that jury commissionei’s play a vital role in the juror selection process. As essential members of the jury commission, they, through the commission, bear primary responsibility for selecting the individuals who will be tasked with rendering ultimate factual determinations in all criminal and civil jury trials — a process integral to effectuating the fundamental constitutional guarantee of every individual to a fair trial by a jury of his or her peers. See generally Commonwealth v. Ellison, 588 Pa. 1, 902 A.2d 419, 423 (2006) (underscoring principle that the jury selection process is critical to preserving the right to an impartial jury). In fulfilling this responsibility, they are required to exercise judgment regarding important matters such as assessing the necessary scope and breadth of the records to be used in the jury selection process to ensure a jury pool which is a representative cross section of the community, the qualifications of prospective jurors to serve, and their ability to serve. Thus, though the jury commissioners themselves are statutorily classified as county staff, the jury commission on which they serve ensures the proper functioning of the trial processes of our statewide Unified Judicial System.

Prior to the passage of Act 4, it could not be reasonably questioned that the jury selection commissions of this Commonwealth were required by the various provisions of the Judicial Code discussed above to adhere to the same basic minimum standards in the preparation of jury lists and the selection of jurors for civil and criminal trials. See 42 Pa.C.S.A. § 2121 (referring to required composition of jury commission in “each county”); id. § 2122 (allowing separate method of selection of jury commissions in Philadelphia, home rule counties, and all other counties); id. § 2124 (“Each jury selection commission shall exercise the powers and perform the duties vested in and imposed upon such commissions by Subchapter B of Chapter 45 (relating to selection and custody of jurors) and any other powers and duties vested in and imposed upon such commissions by law.”). This statutory scheme established a reasonably standard jury selection methodology which assured that variances in jury selection procedures between counties were minimized — thereby ensuring an individual’s fundamental right to a fair trial by an impartial jury of his or her peers. Ellison, supra. These provisions of the Judicial Code also secured the individual privacy of our citizenry by requiring that personal information which potential jurors submit as part of their questionnaires be strictly limited from public disclosure during the period of their service. See 42 Pa.C.S.A. § 4526(d) (prohibiting disclosure *1043of “contents of any records or papers used by the jury commissioners or their clerks in connection with the selection process ... until ... all persons selected to serve as jurors ... have been discharged.”). As Appellants note, however, Act 4 creates the very real possibility that each Pennsylvania county will substitute a jury selection process of its own creation after eliminating the office of jury commissioner. This raises the specter of a proliferation of divergent, and possibly inadequate, jury selection methods among the counties which have abolished the office.

The impact such a balkanization of the jury selection process would have on the conduct of civil and criminal trials, and on judicial administration, should be a matter of profound concern to our Court, particularly as we seek to achieve greater synchronicity in the administration of justice through the integration into the Unified Judicial System of various court related offices currently under the control of county government, pursuant to the broad framework outlined by former Justice Montemuro in his interim report prepared for our Court as a special master. See generally Pennsylvania State Ass’n of County Comm’rs v. Commonwealth, 52 A.3d 1213, 1223-24 (Pa.2012). For this reason, and because, as explained above, I deem Act 4 to have disrupted the continued ability of jury commissions to operate, I consider the implementation of Act 4 to implicate our Court’s duty under the Pennsylvania Constitution to supervise the operation of the Unified Judicial System. See Pa. Const, art. V, § 10(a) (“The Supreme Court shall exercise general supervisory and administrative authority over all the courts”). Pursuant to our supervisory duty, in order to ensure uniformity of the jury selection procedure among all counties which abolish the office of jury commissioner, I would exercise our Court’s rulemaking authority to promulgate specific rules governing the jury selection process to be followed in judicial districts covering all counties which choose to exercise the option of abolishment. Such clear and certain guidance by our Court is, in my view, necessary on a matter of such vital importance.2

. As Act 4 specifically pertains only to second class A, and third through eighth class counties, I use the term county in reference to those counties.

. Given my disposition of Appellants’ first two issues, I need not address their third issue.