Capital Watch April 2013

CA P I TA LWAT C H PA . c o m

CAPITALWATCH VOL. 6 NO. 4

INSIDE DEP Secretary Krancer resigns PAGE 4 Rep. Grove introduces bill to immunize kids at drug stores PAGE 8 Charges filed against eight in ‘pay to play’ scheme PAGE 9

APRIL 2013

House approves

liquor privatization bill in historic vote

State Board of Education finalizes tougher academic standard and high school graduation requirements PAGE 10 Chief Justice Castille wants speedy replacement for Melvin PAGE 11 EDITORIAL Will this be our very last gasoline tax increase?

PAGE 12 May and Gerow: Should state judges be elected or appointed?

PAGE 14

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After more than two years of work from House Majority Leader Mike Turzai and Gov. Tom Corbett, the Republicancontrolled House advanced to the Senate for the first time a proposal aimed at ending a Depression-era state system that controls wine and hard liquor sales.

After debating through a Thursday afternoon into the evening, House Bill 790 was approved on March 21 on a 10590 vote, and now heads to the Senate, setting off what is expected to be a long legislative journey as both chambers continue to vet the proposal.

Despite pushes by Govs.

Milton Shapp, Dick Thornburgh and Tom Ridge during their administrations, the House’s vote is the first time a liquor privatization proposal passed a legislative chamber since the system was

instituted days prior to the repeal of Prohibition in 1933.

“Under Gov. Corbett’s leadership, we are moving the sale of wine and spirits to a place that is more convenient for the citizens of Pennsylvania while maintaining responsibility throughout the state,” Turzai said.

“The unemployment rate is at 8.2 percent. What’s it going to be when these [state store employees] are thrown out of work?” said House Democratic Leader Frank Dermody, D-Allegheny.

“Today the House of Representatives clearly made history. Never before has a liquor privatization bill passed either chamber of the Legislature,” Corbett said after the vote. “…We are actually doing away with the last vestiges of the failed experience of Prohibition.”

The bill as it stands is different

from Corbett’s original proposal.

Grocery stores, big-box retailers, convenience stores, and pharmacies would not be able to obtain beer licenses unless they first acquire a restaurant license, a change from Corbett’s proposal that would have allowed them

the more than 600 state-controlled wine and spirit retail outlets by allowing private entities to purchase 1,200 new wine and spirit licenses one year after the law’s enactment, while another 600 could be made available. During the first year, beer distributors would have first right of refusal of a wine and spirit license. An installment plan would also allow beer distributors to pay off the cost of a wine or spirit license over four years if they pay an additional 5 percent.

Wine and spirit retail licenses would be allocated by county based on the number of beer distributors in the county. When the number of privately owned and operated wine and spirits licenses, plus the grocery store licenses, equals the number of state liquor stores, the Liquor Control Board could approve the closure of those state stores. The state currently operates over 600 retail outlets, but if they were phased out to less than 100, the remaining stores would shutter.

Phasing out the 600-plus state stores would mean over 3,000 liquor store union workers would

“Today the House of Representatives clearly made history. Never before has a liquor privatization bill passed either chamber of the Legislature,” Corbett said after the vote. to sell beer without requiring a restaurant license. Some big-box retailers, already have restaurant licenses.

Grocery stores could sell wine if they purchase a separate license.

The proposal aims to phase-out

be put out of work. Their union, the United Food and Commercial Workers, was working the halls and offices of legislators furiously the past few weeks. continued on page 3

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NEWS 3

APRIL 2013 CAPITAL WATCH

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House approves liquor privatization bill in historic vote continued from page 1

The liquor privatization proposal creates unusual alliances among special interests, with labor unions, beer distributors and social conservatives forming a coalition in an attempt to derail the bill.

“If this bill gets signed into law, they will lose their jobs,” said House Human Services Committee chairman Gene DiGirolamo, R-Bucks. “Forty-five hundred Pennsylvanians eventually will lose their jobs, a slow painful journey to the unemployment line.”

House Democrats and a few Republicans pointed to potential social problems associated with increased access to alcohol.

“Alcohol is not an ordinary, everyday good of life. It is a drug that needs to be regulated and controlled in an appropriate fashion to prevent it from having horrible consequences for society,” said Rep. Bob Freeman, D-Northampton, who echoed statements of a number of House Democrats during Thursday’s debate.

“The test for a good system is how to balance the access to alcohol for adults who use it responsibly, without creating an environment that will increase the problems associated with expanded alcohol availability and the health and safety risks from increased consumption and abuse,”

he said. “These problems are very real, and make no mistake about it, they will increase in number under the system envisioned in this bill.”

DiGirolamo prodded colleagues with law enforcement backgrounds for supporting the bill.

“You’ve seen firsthand the destruction, the crime, the domestic violence, that alcohol abuse creates,” he said. An attempt by DiGirolamo to refer the bill to his committee failed to gain support.

Earlier in the debate, House Appropriations Committee chairman Bill Adolph, R-Delaware, noted that the Liquor Control Board puts $2 million a year aside for alcohol education and treatment, which would increase in the out years.

“We take it very seriously,” Adolph said.

“This Legislature, this General Assembly, created a new department for drug and alcohol, so we take this very seriously.”

Rep. Bryan Cutler, R-Lancaster, noted that the House Democrats supported an amendment that would have kept stores open longer and allowed for direct wine shipment, essentially increasing alcohol consumption.

“Why is increased consumption via state stores OK, but increased consumption

through private vendors somehow more evil?” said Cutler, who spoke in support of the bill.

Rep. Gordon Denlinger, R-Lancaster, who said he first approached the privatization concept negatively over fears of control, said he believes the private sector would do a better job.

“Those private citizens who step forward and purchase these licenses…they have something huge to lose – their license, their livelihood,” he said.

“We should not be making this decision on the fly,” said Rep. Steve Santarsiero, D-Bucks. “Not one speaker has been able to explain why this massive bill as amended yesterday cannot be brought up for public hearing?”

House budget analysts from both parties disagreed on how much one-time revenue would be generated from the sale of wine and spirit licenses.

House Republican analysts estimated $1.1 billion in one-time revenue would be generated, including $404 million from retail wine and spirit licenses and $573 million from wholesale wine and spirit licenses. The remainder would be $137 million from 827 grocery store wine licenses, and $9 million from upgraded retail dispenser licenses. Democratic analysts said the one-time revenue could range from $425 million to $800 million.

Looking ahead, the liquor privatization proposal would likely change depending on what it would take to get a majority of the Senate to support a measure, Senate Majority Leader Dominic Pileggi, R-Delaware, said.

“I’m not as caught up on the ideological part of the legislative effort,” Pileggi said.

He noted his focus is not on the ideological debate or “the desire for a lump sum from selling an income producing asset.”

Liquor privatization, Pileggi said, “is not something that has been an item of active interest and discussion in the Senate.”

“I will say that I think that at some point in this process, through debate today, through debate in the Senate, we will agree on a product. We will agree on a product that could get 203 votes and that’s the goal, but we’re just kicking this off today,” said House Liquor Control Committee chairman John Taylor, R-Philadelphia, whose staff worked on a major amendment adopted to the proposal.

“I know the Senate will probably change this bill and have their own ideas and we will take those ideas and study them when they send them back as well,” he added.

The House’s bill would be vetted first by the Law and Justice Committee, chaired by Sen. Chuck McIlhinney, R-Bucks, who has strong opinions on the issue and proposed a “modernization” bill this session.

Also, the committee’s ranking Democrat, Sen. Jim Ferlo, is touting a co-sponsorship memo for a modernization proposal that boasts all 23 Senate Democrats and three Senate Republicans. CW

4

NEWS

APRIL 2013 CAPITAL WATCH

DEP Secretary Krancer resigns

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Department of Environmental Protection Secretary Mike Krancer is stepping down April 15 to return home to Montgomery County to practice law, rejoining his former law firm, Blank Rome LLP, an international law firm based in Philadelphia.

“His impressive efforts at DEP have taken the agency back to basics, protecting the environment and making the permitting process more efficient,” Gov. Tom Corbett said.

Appointed in January 2011, Krancer oversaw the reorganization of the agency, which created an Oil and Gas deputate and resulted in consistent enforcement of the industry’s regulations across the state. He also oversaw the permit decision guarantee.

During his tenure the agency has grappled with the Marcellus Shale issues and fish deformities in the Susquehanna River.

He was instrumental in efforts to save three refineries in southeastern Pennsylvania, according to Corbett.

E. Christopher Abruzzo, the governor’s deputy chief of staff, will serve as acting secretary in addition to his current duties until Corbett names Krancer’s successor.

In a press release posted on his “John Hanger for Governor” website, Hanger, a former DEP secretary under the Rendell administration, stated, “The resignation of Department of Environmental Protection’s Secretary Krancer reveals a crucial state agency in crisis. His interim replacement, Chris Abruzzo, has absolutely no environmental background and is completely unqualified for the position. He is currently a deputy chief of staff in the governor’s office and before that he served in the Attorney General’s office supervising the Drug Strike Force section.

“It is telling that there is no one at DEP

Secretary Mike Krancer

to take over the agency. Morale at DEP is at devastatingly low levels. Corbett’s DEP has failed to adequately regulate gas drilling and taken combative stances when citizens present the agency with legitimate concerns and problems. The agency has been hostile to renewable energy and has failed to take action to clean up pollution in the Susquehanna River.”

“Serving Governor Corbett and DEP has been the greatest honor of my career,” Krancer said in a news release.

“Pennsylvania is well on its way to becoming the focal point of an American energy revolution, and I am grateful to the governor for giving me this role in assuring that natural gas and energy development happen in an environmentally sound and responsible manner.

“I owe a tremendous amount of thanks and appreciation to all of the talented, dedicated, hard-working professionals at DEP with whom I have been privileged to work as their Secretary,” he said. CW

APRIL 2013 CAPITAL WATCH

5

New Rand study demonstrates Medicaid expansion’s benefits to state’s economy Expanding Medicaid coverage in Pennsylvania will boost economic activity by at least $3.2 billion annually and support 35,000–39,000 jobs in the state over the next seven years, according to a new report released today by The Hospital & Healthsystem Association of Pennsylvania (HAP). The report, The Economic Impact of Medicaid Expansion on Pennsylvania, was commissioned by HAP and conducted by RAND Health, a research unit of the RAND Corporation.

The report forecasts several positive effects of Medicaid expansion on Pennsylvania’s economy and citizens: • New personal income and gross receipts tax revenue produced by Medicaid expansion will exceed the state’s expansion costs.

• At least $3.2 billion in annual economic growth ($23 billion through 2020).

• 35,000–39,000 family-sustaining jobs supported.

Up to 350,000 additional low-income, non-elderly Pennsylvanians will become insured, dropping the state’s uninsured rate from 12.7 percent now, to 8.1 percent under the Affordable Care Act, to 4.8 percent under the Affordable Care Act with Medicaid expansion in 2016 (the first year of full penalties for non-compliance with the ACA insurance mandate).

“This new report from RAND shows the return on investment that Medicaid expansion produces for Pennsylvania’s citizens, government, and health care providers,” said HAP President and CEO Andy Carter. “This manifests itself in higher rates of insurance coverage, lower rates of hospital bills going unpaid, greater economic growth, increased employment, and—most importantly—timelier health care for up to 350,000 low-income Pennsylvanians who would otherwise have no health insurance coverage.”

Carter noted that even with Medicaid expansion, hospitals will continue to be

reimbursed by Medicaid at less than the cost of care.

The RAND report also highlighted a late-2012 study of three states that already have undertaken Medicaid expansion; the study estimated that expansion in Arizona, Maine, and New York produced a decrease in mortality of 568 per 100,000 of those newly eligible for coverage.

“This report reinforces what we have been saying all along—that insured individuals are more likely to receive needed care at the right time in the right setting, and to have preventive screenings, all of

which lower future medical costs,” Carter said. “Insured individuals with complex and chronic illnesses are more likely to manage their care, avoiding an escalation of health problems. Healthy adults are more employable and productive.”

“Medicaid expansion would provide substantial benefit to the physical and fiscal health of Pennsylvanians, the Commonwealth, and its hospitals,” Carter said. “We look forward to working with the Governor and lawmakers to provide health insurance coverage to more of Pennsylvania’s most vulnerable citizens.”

HAP is a statewide membership services organization that advocates for nearly 240 Pennsylvania acute and specialty care, primary care, subacute care, longterm care, home health, and hospice providers, as well as the patients and communities they serve. Additional information about HAP is available online at www. haponline.org. CW

Corbett administration plans to revise the Lottery contract

BY KEVIN ZWICK, CAPITOLWIRE

The Corbett administration plans to revise and resubmit the contract to outsource management of the Pennsylvania Lottery in order to satisfy the legality questions raised

by Attorney General Kathleen Kane.

Sources said the goal of the contract revisions is to narrow the areas under dispute to just one – whether the Revenue Secretary and the administration have the power to add new lottery games or whether they require legislative approval.

The Corbett administration believes they do not require legislative approval to expand gaming.

Revenue Department spokeswoman Elizabeth Brassell says the administration plans to use existing case law, regulations and other state contracts to give clarity on the proposed contract.

The Revenue Department is expected to submit the revised contract to the attorney general sometime in the next few months, the governor’s office. Camelot’s bid to generate $34 billion over 20 years also has been extended until June 30.

The deal with Camelot has seen its fair share of ups and downs since the Corbett administration announced in November its intention to sign the deal with the British firm. Camelot’s bid was extended numerous times so far, amid a challenge from the AFSCME union, which represents over half the current Lottery workforce.

The Corbett administration’s deal to outsource the Lottery’s management to Camelot hit a snag last month with Kane’s rejection of the contract.

The attorney general’s rejection sent the administration’s plan for privatized management into limbo, forcing the administration to re-examine how it would proceed.

Among the options not chosen by the administration was appealing Kane’s decision in court.

In the days following Kane’s rejection, the Corbett administration returned Camelot’s $50 million bid security, part of

which was to be used to pay consultants who worked on the procurement.

The new June 30 bid deadline, which

is also the last day of the current fiscal year, ties the Camelot deal into the budget process. CW

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8 NEWS

APRIL 2013 CAPITAL WATCH

Rep. Grove introduces bill to immunize kids at drug stores

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In an effort to increase immunization rates among school aged children, state Rep. Seth Grove, R-York, has introduced legislation (HB 776) to allow pharmacists to administer injectable vaccines to individuals 7 years of age and older – with parental permission.

The bill is based on similar legislation (HB 817) introduced during the last General Assembly session. While it earned strong support at a public hearing last year from pharmacists and other health care advocates, it was opposed by the Pennsylvania Medical Association because it would also have allowed pharmacists to inoculate newborn infants.

In a statement issued upon HB 776’s introduction, Grove said, “Very simply, this legislation would give Pennsylvania’s parents the option of having their children immunized at a pharmacy.” He noted that pharmacists were already providing similar services to children 7 and older in 24 other states.

“With more than 6,600 active certified pharmacist immunizers in the Commonwealth, pharmacy is ready and willing to do more to improve accessibility and raise immunization rates,” Grove said.

He noted that the federal Centers for Disease Control (CDC) has called immunization rates nationally “unacceptably low.”

He cited a June 2012 letter from the CDC endorsing the concept of pharmacist vaccinators. “Their extensive reach into diverse communities allows greater access to vaccines for those who may not have a medical home, and who traditionally have had lower rates of vaccine use,” the letter stated.

Grove also cited the success of earlier legislation passed ten years ago to allow pharmacists and pharmacy interns to administer vaccines to adults. “PA pharmacists have been successful in improving immunization rates for adults,” Grove said. “Nationally, it is estimated that during the 2011-12 flu season, 20 percent of adults received the flu vaccination in a pharmacy.”

The need to expand access to immunizations is growing, the York County legislator said. “Last spring the Department of Health made certain additional vaccinations, including pertussis, mandatory for school entry. The deadline had to be moved several times because of the difficulty families found in meeting it. I believe if this bill had passed last year and parents had the additional option of taking their school-aged children to a pharmacy in the evening or on weekends, we may have potentially been able to avoid that problem.” CW

NEWS 9

APRIL 2013 CAPITAL WATCH

Charges filed against eight in ‘pay to play’ scheme Pennsylvania Attorney General Kathleen G. Kane has announced that criminal charges have been filed against a former State Senator, five former Pennsylvania Turnpike Commission officials and employees, and two Turnpike businessmen who had multimillion dollar contracts with the Turnpike.

The former state officials are accused of using “pay to play” schemes for financial and political gain. Their criminal acts resulted in the misdirection, misuse, and theft of millions of dollars of public money, according to Kane.

Charges have been filed against former State Senator Robert Mellow, former Turnpike Commissioner Mitchell Rubin, former Turnpike Chief Executive Officer Joseph Brimmeier, former Turnpike Chief Operating Officer George Hatalowich, and former Turnpike employees Melvin Shelton and Raymond Zajicek. In addition, charges have been filed against Turnpike vendors Dennis Miller and Jeffrey Suzenski. They are charged with a variety of offenses, including conspiracy, commercial bribery, bid-rigging, theft, conflict of interest and corrupt organization violations.

“The grand jury found that these men were using the Turnpike to line their pockets and to influence elections,” said Kane.

“That is stealing from the public, pure and simple.”

After a lengthy investigation, the 33rd Statewide Investigating Grand Jury found evidence that the Turnpike Commission has been corrupted by some of its very own officials and by some of the individuals who do business with it.

The grand jury heard evidence of secret gifts of cash, travel, and entertainment, and the payment of substantial political contributions to public officials and political organizations, by private Turnpike vendors and their consultants.

The charges show those who ‘pay to play’ have sought and been rewarded with multi-million dollar Turnpike contracts. As a result, the public has lost millions of dollars, according to Kane.

“The findings of the grand jury are very troubling to me,” said Kane. “These were blatant actions. It was almost as though they had no fear of being caught. That kind of behavior has to stop.”

“These presentments open the window to the operation of the Pennsylvania Turnpike Commission and many of their associates in the private sector,” said State Police Commissioner Frank Noonan. “It shows a culture of greed, corruption and political influence that is beyond imagination. The people of Pennsylvania deserve better.”

In particular, the grand jury found substantial evidence that former State Senator Mellow, during his tenure as Democratic Floor Leader, directed that his Chief of

Staff secure Turnpike contracts for key contributors and supporters. Mellow also told his Chief of Staff to order individuals at the Turnpike to provide political support and raise campaign funds on his behalf, according to the grand jury.

Kane thanked the Pennsylvania State Police for their assistance with the investigation.

The case will be prosecuted in Dauphin County by Senior Deputy Attorney General Laurel Brandstetter of the Attorney General’s Criminal Prosecution Section.

Below is a complete list of the defendants and the charges against them.

- Robert Mellow—charged with two counts corrupt organizations, two counts of restricted activities, one count of commercial bribery, one count of unlawful bidrigging, one count of restricted activities, one count of criminal conspiracy, and one count of failure to file expense account.

- Mitchell Rubin—charged with three counts of unlawful bid rigging, two counts corrupt organizations, two counts of restricted activities, one count commercial bribery, and one count of criminal conspiracy.

- Joseph Brimmeier—charged with two counts corrupt organizations, two counts of unlawful bid-rigging, two counts of restricted activities, one count of commercial bribery, one count of criminal attempt, and one count of criminal conspiracy - George Hatalowich—charged with seven counts of restricted activities, three counts of unlawful bid-rigging, two counts of corrupt organizations, one count of commercial bribery, one count of criminal attempt, and one count of criminal conspiracy.

- Dennis Miller—charged with one count of unlawful bid-rigging, one count of theft by unlawful taking, one count of theft by deception, one count of restricted activities, and one count of criminal conspiracy.

- Jeffrey Suzenski—charged with one count of restricted activities.

- Melvin Shelton—charged with two counts of theft by unlawful taking, two counts of theft by deception, two counts of misapplication of entrusted property and

Attorney General Kathleen Kane says her office has filed charges against a former state Senate leader and seven others in what’s being called a “pay to play” case involving the Pennsylvania Turnpike Commission.

property of government or financial institutions, one count of unauthorized use of automobiles and other vehicles, one count of perjury, one count of false swearing, - Raymond Zajicek—charged with two counts theft by unlawful taking, two counts theft by deception, two counts of misapplication of entrusted property and property of government or financial institutions, one count of unauthorized use of automobiles and other vehicles, and one count of simple assault. CW

10 NEWS

APRIL 2013 CAPITAL WATCH

State Board of Education finalizes tougher academic standards and high school graduation requirements

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Thanks to action by the state Board of Education, Pennsylvania students and parents will be adding some new vocabulary words to learn – Common Core State Standards and Keystone Exams.

At its last meeting, the state board approved final language to state regulations to toughen state academic standards and align them with standards adopted or in the process of upgrading in 45 other states.

They also gave final sanction to new, end of course tests called Keystone Exams which students will have to pass to qualify for high school graduation.

Specifically, requires students to demonstrate proficiency on a Keystone Exam, validated local assessment or a comparable Advanced Placement/International Baccalaureate exam.

“Governor Corbett believes these changes will ensure that Pennsylvania’s students are prepared to succeed in higher education as well as the increasing rigorous requirements of our workforce,” State Education Secretary Ron Tomalis said. “Parents and students can be assured that with these changes in place, those graduating from Pennsylvania public schools will have the skills and knowledge that are needed to be successful.’’

“Chapter 4 contains the nuts and bolts of our education system,” said State Board of Education Chairman Larry Wittig.

“The action taken by the State Board has strengthened the process by which school districts provide that education.

Pennsylvania students, parents, employers and taxpayers should be pleased to finally have consistent predictable graduation requirements for all school districts.”

As required by the new regulations, the Pennsylvania Common Core Standards in English language arts and mathematics must be implemented in all public schools across the state by July 1, 2013.

Tomalis noted that the standards will be a guide to teachers, students and parents on what students should be taught and master based on their grade level.

Beginning with the class of 2017 – this year’s 8th-grade class – students will be required to pass three Keystone Exams – algebra I, biology and literature – or a comparable assessment to obtain a high school diploma.

The class of 2019 – this year’s 6thgrade class – will be required to pass four Keystone Exams – algebra I, biology, literature and composition.

The class of 2020 – this year’s 5th-grade class – and beyond will be required to pass five Keystone Exams – algebra I, biology, literature, composition, and civics and government.

The composition and civics and government exams are subject to available state

funding for development and implementation of each assessment.

Additionally, subject to available funding, five additional Keystone Exams would be made available to school districts for voluntary use based on the following schedule: geometry in 2016-17, U.S. history in 2017-18, algebra II in 2018-19, chemistry in 2019-20 and world history in 2020-21.

The board also voted to repeal the required culminating graduation project, and the Keystone Exams, from counting as one-third of a student’s course grade.

“The Keystone Exams will ensure that students are graduating high school with the necessary skills and academic credentials that are needed to be successful in college and the workforce,” Tomalis said.

“Our students deserve to know that they are being provided with a high-quality education that will make them globally competitive.”

Tomalis also put the public on notice that the new, higher standards might have a temporary, negative impact on student test scores. “It’s also important for everyone to recognize that the Keystone Exams are aligned to the more rigorous Pennsylvania Common Core Standards and as such, a dip in student test scores is anticipated during this transition. Any decline in scores will improve as students and schools become accustomed to the new academic standards.”

The new academic standards and the Keystone Exams are supported across the state by the business community, higher education leaders and early education organizations. Among the strongest advocates for more rigorous standards are the Pennsylvania Business Council Education Foundation, Pennsylvania Partnerships for Children and Team Pennsylvania Foundation. Most educators have welcomed the Keystone Exams over the long-standard Pennsylvania System of School Assessment (PSSA) tests because the Keystones, when fully implemented, will be administered to students immediately upon completion of the relevant course. In the PSSA process, students might experience a long lag between coursework and testing and, in any instance, would not be required to receive remedial coursework – something the Keystone Exams will require.

The Pennsylvania System of School Assessment (PSSA) will no longer be required for 11th-grade students but will continue to be taken by students in grades 3 through 8. Additionally, the PSSA will be aligned to the Pennsylvania Common Core State Academic Standards in the 2014-15 school year.

Now that the board has taken final action to amend the regulations, they will now go to the House and Senate. CW

NEWS 11

APRIL 2013 CAPITAL WATCH

Chief Justice Castille wants speedy replacement for Melvin State Supreme Court Chief Justice Ron Castille said disgraced former Justice Joan Orie Melvin’s intention to resign in May should provoke action on her replacement.

But it’s unclear how the temporary appointment will be made. Castille said the six justices on the court could appoint a senior justice, or Gov. Tom Corbett could appoint an individual, who would then have to be confirmed by two-thirds of the state Senate.

“This is the cutoff now, we will look to act upon what has happened today for the future of the court,” Castille told reporters after speaking at the Pennsylvania Press Club luncheon in Harrisburg.

In a letter sent to the governor, Orie Melvin says she plans to resign effective May 1, as she awaits sentencing after being found guilty of using state employees for political campaign work.

Castille, saying her announcement marked “a sad day for the Supreme Court,” plans to seek a speedy replacement so the court can return to its normal functions.

“The sooner the better,” he said. “[The governor’s appointment] has to go through the Senate for confirmation … who knows how long that will take? It has to be a candidate that’s acceptable. The Democrats

may want something for their support, you know, typical politics.”

The next election to fill the Supreme Court vacancy would be the 2015 election cycle, too long for the state’s high court to operate as a six-member body, Castille said.

“I don’t believe we could function as a six-justice court until January of 2016,” he said. “So, we have had 3-3’s – they’re bad for us, they’re bad for everybody, so we will be looking to see what happens after today with the resignation.”

“We’re constantly writing these opinions and circulating them back and forth to the other justices for their opportunity to write a dissent or a concurrence,” he said later, referring to pending decisions on the legislative reapportionment maps and the zoning provisions of Act 13.

“So we’re not holding anything at present. We could do that, we could hold a case until the seventh justice or somebody changes their legal opinion,” he added.

Castille, in his remarks both during and after the luncheon, stressed how the six-member court – currently three Republicans and three Democrats – disrupts the function of the high court.

Said Castille: “It’s difficult to function with just six justices. A 3-3 decision is

kinda meaningless. It tells you what the three people think on one side and what three people think on the other side. It doesn’t set any precedent. It doesn’t give any guidance to the lawyers, it doesn’t give any guidance to individuals who wanna come before us.”

Lynn Marks, executive director of Pennsylvanians for Modern Courts, which advocates for merit selection of judges, welcomed Orie Melvin’s announcement.

“This could only have happened in a system where all judges are elected in expensive, partisan elections,” said Marks via email. “Judges should not be forced to be in the fundraising and campaigning business in order to win a seat on the bench.

“This debacle should spur legislators to move forward on merit selection and give Pennsylvanians the opportunity to vote on whether to change the way we select our judges.”

Castille, a Republican who faces voters in a November retention vote, said his experience would be an asset to a court in flux.

“This is a tough time for a court with a missing justice,” he said. “It’s hard to bring in somebody and say you’re justice for two years - the learning curve for this job is

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steep and it’s long.

“This is a crucial time and I think I could add more to it, bringing in my experience.”

He also panned the influence of money in judicial elections, saying he ran his first retention election with $200, and noted polling shows people believe money relates to favorable opinions for contributors in judicial decisions.

“That skews the system. It causes citizens to lose confidence that justice can happen in the court system,” he said.

The Castille court has heard politically charged cases recently, and ruled to the dismay of some Republicans in cases regarding state reapportionment and Voter ID. Castille sided with the court’s three Democrats to throw out maps from the Republican-controlled Legislative Reapportionment Commission, upsetting some in the GOP establishment.

The Commonwealth Court is set to hear constitutional arguments on the Voter ID law this July and the case will likely end up in the Supreme Court.

The politically-charged zoning issue regarding Act 13 - the state’s Marcellus Shale law - is also pending in the Supreme Court. CW

12 OPINION

APRIL 2013 CAPITAL WATCH

Editorial

Will this be our very last gasoline tax increase?

The General Assembly appears to be poised to increase transportation funding – mainly by lifting the ceiling on the price of wholesale fuel that may be taxed – sometime in the next few weeks. If the legislature also agrees to apply an inflation adjusted price to drivers’ licenses and vehicle tags and tweak other aspects of the recommendations of the 2011 Transportation Funding Advisory Committee, the funding package could raise as much as $3 billion and change. And, with the fluctuating prices of crude oil by the barrel on the world market, it’s possible that people won’t even be able to notice much of a change in the price of gasoline at the pump.

What they should be able to notice over the next five years, though, is better, safer roads and bridges.

And, because the wholesale gasoline tax

will float with the price of fuel, it should continue to deliver increasing revenues – until alternate fuels like compressed natural gas and electricity make a real dent in demand for gasoline and diesel.

But as those new energy sources come on line as fuel for highway travel, the pressure will be great to enhance their appeal to motorists by keeping a wide gap between their costs and those of gasoline and diesel.

For early adopters of alternate fuel vehicles, the initial vehicle acquisition costs will be so great that people will demand incentives in the form of lower fuel costs.

Meanwhile, government mandated increases in average miles per gallon will continue to place a dampening hand on tax yields from any kind of fuel tax. At some point, if we truly believe in “pay-asyou-go” taxation, we will move inexorably

closer to some sort of per mile fee system to finance highway travel.

We already have that system, of course, on toll roads. Technologically, we could create a relatively foolproof system tomorrow to capture vehicle miles traveled by each car and truck using GPS tracking – a kind of EZ-Pass on steroids.

What should be clear, though, to most motorists is that the car of today is as doomed as the Bell Pennsylvania Princess Phone was in 1990. Today is the age of the smart phone. We should not be surprised if the 2020s bring the age of the “smart car.” No, make that the “smart truck.” Innovation is likely to come first to trucking because the logistics industry is already committed to computers, GPS and cost containment. Right now, logistics is driving huge investments in intermodal

transportation – cargo containers starting a journey behind a diesel tractor, being offloaded to a trailer-train for the long haul and then finishing the trip again behind a tractor.

Somewhere today a logistics engineer sits trying to figure out the next generation of trucking: will it be more intermodal?

Or will it be “triple-bottom” trailer rigs being hauled on dedicated and separate lanes alongside interstates like I-81, maybe powered by compressed natural gas or even electric tractors getting their motive power from induction coils buried in the concrete of the highway.

As the Keystone State, we might find ourselves on the cutting edge of new technology – and new methods of raising revenue. CW

Take our bread and give us booze?

BY REP STEPHEN KINSEY

Gov. Tom Corbett and the Republican-run General Assembly seem to be hell-bent on making things tougher in Pennsylvania.

First, he slashes services that bear food

benefits, mental health care and education, and then, he proposes to gives us “convenient” alcohol.

Should the most vulnerable citizens have

social lifelines taken away and given unfettered booze on shelves near our churches, highways and homes? And as we contemplate that question, let me remind you that

Rep. Stephen Kinsey our current liquor stores bring in $200 million a year – conservatively – to help fund the very programs he’s cut.

The new liquor stores will not share profits with the public. They will, however, contribute to drunken driving, violence and crime.

Has Gov. Corbett not walked the streets of his state? Does he not see the marks of his tenure in anything other than a line item?

Has not the price of fiscal conservatism been waged on the backs of the needy, again?

I don’t believe Gov. Corbett made it where he is today without being a smart man, but maybe he should explain to us why he either doesn’t see or chooses to ignore the fact that his budgets continually come at the cost of people who are trying to pick themselves up from a down economy, tough circumstances, or both.

Forgive me my melancholy delivery, but I can’t ignore such a bleak record when Pennsylvania’s unemployment rate sits at 8.1 percent and my district’s is double that.

And perhaps I’m being too harsh.

At least the unemployed and underserved won’t have far to drive for a drink. CW State Rep. Stephen Kinsey represents the 201st Legislative District which includes parts of Philadelphia.

OPINION 13

APRIL 2013 CAPITAL WATCH

House Republicans wanted to make history.

And they did.

BY PETER L. DECOURSEY

When you run on the platform of changing Harrisburg culture and reforming it, a great symbol of what voters don’t like about Harrisburg beckons: the state store system and Liquor Control Board.

Like the Pennsylvania Turnpike Commission, the LCB system is the Philadelphia Traffic Court of state government: institutions perceived as being run by and for insiders, which get ensnarled in major scandals every five or ten years for as long as anyone can remember.

The Liquor Control Board’s mission to control and closely monitor the sale of liquor to make it mildly difficult to get, and to deny Pennsylvanians the kinds of choices other states offer - is increasingly out of step with the times, even social conservatives argue.

And for an ever-growing group of conservatives, taking the government out of a big private business is a no-brainer, and much more attractive than having the state run the liquor business badly so people drink less.

Plus, social conservatives argue, it is wrong to have the state do the business well, because then more people drink more.

These are relatively recent changes in the views of social conservatives, and probably would not have gotten discovered unless House Majority Leader Mike Turzai, R-Allegheny, took that office in 2011, vowing to make historic change in state government.

And the fact is a reduced budget can be restored and then some, as Gov. Ed Rendell showed. A business tax cut can be undone. But if you get rid of the state store system, it will be gone forever.

No one is proposing the state government take over the wholesale distribution of pharmaceuticals or some other commodity.

So when Turzai took office, he made this historic change his goal. Back in early 2011, there were about 40 enthusiastic House Republicans wanting to do the same. Many of the rest of the House GOP had varying degrees of support and enthusiasm for it.

By June 2012, those numbers had grown to 60 zealots and 95 to 98 votes for it, depending on the proposal and the time of day.

And they probably were stuck there until the 2012 elections took place. Not only did voters give the House GOP – and only the House GOP, the Senate lost three seats and the GOP lost all three row offices – their endorsement, they kept them at their same number going into the elections, 111.

Now the idea of a historic opportunity for conservative change, and liquor being the change to push for, met. Frankly, there were other contestants in the minds of many House GOPers, prevailing wage being just one of them.

But the fact is that Turzai, by then, had

spent three years preparing the ground and winning adherents to his proposal, and thought about this issue longer – about a decade ago, he introduced a bill to create grocery licenses to sell wine.

That idea, nurtured by Marcia Lampman of the House Liquor Control Committee, transformed into using restaurant licenses as the pathway for selling wine and beer in grocery stores.

The other big payoff from the rising tide of “we can make history” House GOPers, is that Gov. Tom Corbett, who began liking this issue, began to see it as a historic antigovernment stance he could take.

And his enthusiasm was needed because after last June’s Bucks County House GOP delegation failure, House Liquor Committee Chairman John Taylor, R-Philadelphia, had tried every permutation of this legislation. But every one that pleased Peter, drove Paul up the wall.

So where the governor, after being persuaded that his booze licenses for convenience stores and pharmacies went a little too far, helped was in getting Pat Deon, a major southeastern GOP beer distributor and SEPTA chairman and party power, to sit tight, for now. Speaker Sam Smith,

R-Punxsutawney, also played a role in reassuring a small number of nervous members on this big vote.

Deon and the Bucks House GOP delegation were already feeling exposed for being rightly held up as why the bill didn’t pass last year. And Taylor pushed hard to make beer distributors the only 1-stop location for beer, wine and spirits.

Taylor is close to Deon and kept him out of this transaction - no promises when it gets to the Senate was understood by all sides - until the recent Turnpike charges started to make some folks rumor things about Deon, a former Turnpike commissioner. But Taylor re-engaged, and got Lt. Gov. Jim Cawley and the governor to talk to Deon and work the delegation. That didn’t end the issue, but it took the ardor out of their opposition.

And while Turzai would have accepted whatever Taylor produced, the 80 or so by now House Republicans excited about this created a mood where selling the wholesale businesses was a foregone conclusion.

Turzai helped to create that mood, members say, but so did Corbett. His desire to get upfront money for education ensured selling the wholesale operation occurred

because that’s where the money is.

And while Turzai said he hopes the Senate passes the bill, Taylor told the House, correctly, that this is just the first step. What Taylor didn’t say is that Deon’s influence will resurface in the Senate, as will that of others.

But Turzai and Corbett and Taylor and the House GOP took a historic step towards getting government out of the liquor business. It faces tricky terrain in the Senate, but for years, they have been saying: “pass a bill, then we will consider it.”

Now the House did their part and the Senate will have to go before their constituents and explain what they are doing.

PoliticsPA.com reports that Bucks County GOP activist Rob Ciervo announced he will primary Sen. Chuck McIlhinney, R-Bucks, if McIlhinney doesn’t guide the House bill to Senate passage. And he is the chairman of the relevant committee.

In Pennsylvania you always have to assume stasis wins. But after one vote Thursday night, the Senate may have found itself on the wrong side of history. CW Peter DeCoursey is Capitolwire Bureau Chief.

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14 OPINION

APRIL 2013 CAPITAL WATCH

Should state judges be elected or appointed?

ELECTED

APPOINTED

Article II, Section 2, Constitution of the United States: He [the President]… shall nominate, and by and with the advice and consent of the Senate, shall appoint…

Judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for … but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone in the courts of law or in the heads of departments.

“Merit selection” of judges sounds like a great idea.

After all, who isn’t for meritorious judges.

Longtime TV partners, Tony May and Charlie Gerow provide commentary and analysis on political matters every Sunday on WHPTV-CBS 21’s program, “Face the State,” in addition to being regularly featured on the Pennsylvania Cable Network (PCN). In their other lives, May is a partner at Triad Strategies, and Gerow is CEO of Quantum Communications.

The real question is: who does the selecting?

BY TONY MAY

BY CHARLIE GEROW

The Constitution of the United States makes it clear that judges – members of that all-important and independent third and co-equal branch of government – should be appointed by the Chief Executive of the land and not elected by popular ballot. The President’s power to appoint is tempered and limited only by the need for the advice and consent of the Senate.

Senate confirmation is required for Supreme Court nominees specifically under Article II, Section 2 of the Constitution. Congress has the power to vest sole appointive power in the President without confirmation for lower court seats – but they have never granted the chief executive that power.

By contrast, 39 of the 50 states allow for direct election of judges both at the statewide and local level.

For some 225 years, this system has served citizens of the individual states fairly well, or at least until recent years when special interest groups began to sink real money into judicial campaigns – enough money to attract professional campaign consultants in droves. Now, judicial elections have become an “off year” cottage industry for campaign image makers and judicial candidates, who once were constrained to avoid hot button political issues on the campaign trail are now by a new breed of campaign handlers and message police.

This is not to suggest for a minute that Senate hearings at the federal level are free of wedge issues and partisan politics. No one who is old enough to remember the Robert Bork or Clarence Thomas hearings could suggest that with a straight face. Nor have all members of the federal appellate judiciary been above reproach.

The real problem is that the very nature of being a judge is anathema to the nature of being a candidate. In fact, you could make the case that the Pennsylvania Code of Judicial Conduct already mandates that judicial candidates avoid most candidate-like behavior. Under Canon 7, judicial candidates may not “make pledges or promises of conduct in office other that faithful and impartial performance” or “make statements that commit them with respect to cases or controversies likely to come before them” or “personally solicit or accept campaign funds or solicit publicly stated support.”

What’s left for a judicial candidate to do? Walk around and smile and shake hands?

How is a voter supposed to make a judgment? On the firmness of the handshake? The candidate’s hair or teeth?

In other words, we are faced with a choice between (a) a candidate who looks and walks like a good judge and (b) a candidate who is unfit to be a judge because he or she violates the judicial canons before he or she has entered office.

Better we should follow the pathway of the federal government or of the dozen or so states that have a merit selection system where candidates are recommended by a bipartisan screening committee, nominated by the Governor and confirmed by the state Senate.

Some very well intended and respected Pennsylvanians have, for years, been lobbying for the selection of judges to be made by appointment, much like the federal system.

There are various schemes that have been discussed but they boil down to appointment by the Governor. And that is where the discussion gets interesting.

If you call this “political appointment” of judges, which is what “merit selection” really is, there’s not much popular support.

The big stumbling block to political appointment of judges is a pretty large constituency--the voters of Pennsylvania. Under our current Constitution, put in place just a few decades ago, voters elect the states judges from Magisterial District judges to the Justices of the Supreme Court of Pennsylvania. To alter that system requires an amendment to the state’s constitution, a long and arduous process culminating in a referendum. That would be decided by people being asked to give up their right to vote in favor of some panel of “experts” who would pick and choose those deemed meritorious of appointment.

Advocates of political appointment of judges point to recent problems in Pennsylvania’s judiciary as a compelling argument to eliminate the right of voters to choose their judges. That overlooks two important facts: 1) Pennsylvania has an exemplary judicial system with highly qualified and respected jurists all of whom came to the bench by election of those whom they judge. This is especially true of the state’s appellate courts who have been the largest target of pleas for changing the way we select judges. 2) Those states that do not allow voters to select their judges have as many, if not more, ethical and other problems.

The federal system is distinguishable for several reasons including lifetime appointment of its judges.

I won’t question the motives of those who want to change the way Pennsylvania judges are chosen. Nor will I argue, as many have, that it is an “elitist” mindset that leads some to believe that judges are better chosen by a few rather by many. But I will maintain that suggesting a small group of insiders determining who gets appointed to judicial office will free the system from undue influence or questionable picks has a naive ring to it.

The quality of “Merit selection” will always depend on who does the selecting.

Under political appointment it would inevitably be controlled by a small group of political and legal insiders. Their opinions are already infused into the election process by bar association “recommendations.” Voters have their views to take into account as they cast their ballots.

If we trust the people we won’t ask them to give up a fundamental and vital right.

Rather we will acknowledge that We the People should rightly chose who will be their judges, a core element of three co-equal branches of government.

As infamous political boss once observed, “I don’t care who does the electing, so long as I get to do the nominating.” It’s a word to the wise.

OPINION 15

APRIL 2013 CAPITAL WATCH

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