IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

FRANK SCHALLER, AS PLENARY GUARDIAN OF THE ESTATE AND PERSON OF MARY GABLE A/K/A MARIE GABLE, AN INCAPACITATED PERSON,

Petitioner

v.

NEW FLYER OF AMERICA INC., AND SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Respondents :
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: No. 69 EM 2018

MEMORANDUM OPINION AND ORDER

WECHT, J. FILED: August 14, 2018
By letter dated July 6, 2018, I disclosed to the above

- captioned parties that, during
my 2015 campaign for a seat on this Court, I expressed some criticism of this Court’s

decision in Zauflik v. Pennsbury School District , 104 A.3d 1096 (Pa. 2014), a case t hat
plays prominently in this Court’s consideration of the Applications for Extraordinary Relief

at issue in these matters. I expressed my sincere belief that I could and would participate

in adjudicating the instant matter without actual or apparent bias , but indicated that I would
consider with an open mind any recusal motion that any party might file.

Respondent Southeastern Pennsylvania Transportation Authority ( “SEPTA ”) ha s
taken me up on that invitation , filing an application requesting my recusal. Somewhat

embellishing my disclosure, SEPTA assert s that I “publicly announced that [I] would have[ 69 EM 2018 ]

- 2 decided Zauflik otherwise.” SEPTA’s Application for Recusal (69 EM 2018) at 5. In fact,

my disclosure said only that, “on at least one occasion, [I] expressed some criticism of

this Court’s decision” in Zauflik , which accurately describes my full recollection, then and

now.

SEPTA rel ies upon Pennsylvania Code of Judicial Cond uct Rule 2.11(A)(5), which

provides that a judge should disqualify himself in any case in which his “impartiality might

reasonably be questioned,” including when the judge, “while a

. . . judicial candidate, has

made a public statement

. . . that commits t he judge to reach a particular result or rule in

a particular way in the proceeding or controversy.” Id. “Recusal is not to be granted

lightly, lest a jurist abdicate his ‘responsibility to decide.’” League of Women Voters v.
Commonwealth of Pennsylvani a , 179 A.3d 1080, 1083 (Pa. 2018) (Wecht, J., single

Justice order) (quoting Pa.C.J.C. 2.7).

As I discussed at length in League of Women Voters , and as the United States

Supreme Court expounded in Republican Party of Minnesota v. White , 536 U.S. 765

(200 2), where judges are elected, the importance of ensuring trust in the judiciary’s

impartiality coexists uneasily with the candidate’s constitutional right, and democratic
obligation, to speak freely to voters on subjects relevant to the office. See League of

Women Voters , 179 A.3d at 1088

- 91; Republican Party of Minnesota , 536 U.S. at 787

(“There is an obvious tension between the article of Minnesota’s popularly approved
Constitution which provides that judges shall be elected, and the Minnesota Supreme

Co urt’s announce clause which places most subjects of interest to the voters off limits.”).

Moreover, criticizing a prior decision is a far cry from committing to its reversal.

Discussing and debating the law is what jurists do. Any scrupulous judge must[ 69 EM 2018 ]

- 3 counterbalance his own inclination on a given legal question with the paramount

obligation to honor prior precedent. Stare decisis , and the stability in the law that it

promotes, is a pillar of our common

- law system. That an honorable jurist speaks critically

of prior precedent should not by itself prompt anyone to assume that he will disdain it.

D evelopment and presentation of cogent arguments advocating adherence to, or
divergence from, precedent lie at the core of the skill set for which people pay lawyers

. With the benefit of this advocacy, judges read, listen, think, and decide. No jur ist’s mind

is a tabula rasa; one should never mistake an open mind for an empty one. 1

I have carefully and deliberately reviewed SEPTA’s thoughtful arguments, as well

as Petitioners’ thoughtful arguments in opposition. I am unpersuaded that my prior

criti cism of Zauflik requires my disqualification here.

AND NOW , this 14 th day of August, 2018
, SEPTA’s Application for Recusal is

hereby denied.

1 “[E]ven if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. ‘Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.’” Republican Party of Minnesota , 536 U.S. at 778 (quoting Laird v. Tatum , 409 U.S. 824, 835 (1972)).