This month, the Court issued 2 precedential opinions and 5 grants of allocatur.

On the opinion side, the most significant opinion is one that hasn't been written yet.  In Carter v. Chapman, 7 MM 2022,* the Court issued an order adopting a remedial Congressional redistricting plan in the wake of Pennsylvania's loss of a Congressional seat and the political branches' inability to enact a plan, indicating an opinion will follow.  The court selected a plan proposed by a citizen-group which offered a lower-case-c conservative approach of making as few changes as possible to the current plan as reasonably possible, essentially absorbing one district into its neighbors and expanding or contracting districts as population changes dictated.  Politically, the map creates 4 strong-Democratic districts, 2 weak-Democratic districts, 3 very-competitive districts, 2 weak-Republican districts, and 6 strong-Democratic districts, for an aggregate 6-3-8 map that gives Republicans a mild advantage in Congressional elections relative to their statewide voteshare.  A full analysis of the plan, and its competitors, is available at FiveThirtyEight here.

The opinion's resolution of a few issues will be of significant importance.  First, it is notable that at a special session in Carter, numerous members of the court seemed highly suspicious of proposed plans that "split" the City of Pittsburgh into two Congressional districts.  The suspicion is based on the Court's 2018 anti-gerrymandering decision, which borrowed certain traditional redistricting criteria which are constitutionally mandated in the state legislative reapportionment process, among them the avoidance of splitting political subdivisions except where "absolutely necessary to achieve population equality." This text notwithstanding, however, the Court in the state reapportionment process has retreated from an absolutist reading, recognizing that splits may serve other important goals as well, such as district compactness, or, presumably, after its 2018 decision, protecting against partisan vote dilution.  Further, it also ignores some nuance: not all splits are created equal.  The Court's adopted plan, for example, splits the borough of Swissvale, population 8,983, in Allegheny County.  Whatever strength the unified voters of Swissvale might have had in a single Congressional district, it is now diluted in each of two districts.  Contrariwise, inasmuch as Pittsburgh boasts 302,205 residents and is greater in population than any other Western-Pennsylvania municipality by multiple factors, one can readily imagine that if Pittsburgh were split in two, candidates in each district would continue to visit and seek support from Pittsburghers.  And that's putting aside that there is no obvious hierarchy regarding the kind of split.  The Court's adopted plan avoids splitting Pittsburgh, in part, by splitting Westmoreland County, which has roughly 300k residents as well.  Is a county split worse than a city split?  How about a borough or a ward? In this author's view, the analysis must be a little more refined than a race to the lowest number of splits, and predominately focused on vote dilution.  Perhaps most importantly, if the Court adopts this textual approach in the context of Congressional districts, it may have to revisit it in state legislative districts, where, because those districts are smaller, it may have far greater implications for the political fairness of the plans.

Another interesting issue will be whether and to what degree the Court addresses what some have called a "natural gerrymander" in favor of Republicans in Pennsylvania.  The theory behind this "natural gerrymander" is that Democratic voters are more clustered in urban areas, and Republican voters are less clustered in rural ones.  Respectfully, although there is certainly self-sorting among voters, the "natural gerrymander" is bunk, at least in the Congressional redistricting context.  It rests on the notion that if we are to keep districts compact and political subdivisions whole, all potential plans have a Republican bias.  Yet, the numerous plans in Carter show that plans that avoids a gerrymander can be more compact, and protect more political subdivisions than others.  In short, because Congressional districts are so large, compactness, political-subdivision integrity, and partisan fairness are not at odds.

In any event, unsatisfied, some Republicans have sued in federal court challenging the Court's authority to adopt a remedial plan at all, claiming the United States Constitution vests that authority with state legislatures, not state courts, and that absent an enacted plan, Congressional elections should proceed according to a federal statute providing for at-large elections.  

Respectfully, in this author's opinion, this claim ignores not only the fact that the U.S. Supreme Court has repeatedly recognized that the constitutional provision at issue has routinely been interpreted to vest redistricting authority in the state's lawmaking power, subject to local conditions (e.g., gubernatorial veto, initiative and referendum, or even displacement into an independent redistricting commission), but also the fact that the Court here has legislatively granted authority to take up "any matter pending before any court . . . involving an issue of immediate public importance, assume plenary jurisdiction . . . and enter a final order or otherwise cause right and justice to be done." 42 Pa.C.S. § 726.  That said, we are dealing with a different SCOTUS than before.  The court would be well advised to draft its opinion with an eye toward addressing the claim.

On the allocatur side, the case with the greatest impact is likely to be Berkshire Hills, which will consider whether two common local/school district taxing authority practices -- the selective assessment of high-value properties and new properties -- is unconstitutionally discriminatory.  In short, the claim is that appealing the tax assessments of such properties, but not others, leads to certain classes of properties being taxed more highly than others, contrary to a provision in the Pennsylvania constitution requiring that taxes be "uniform" with respect to similarly situated individuals and properties.  If the Court determines that question in the affirmative, it could lead to a vast upheaval in the administration of local real estate taxes, likely to the chagrin of those owning ordinary residential and long-held properties.

Precedential Opinions

Arlet v. Workers' Comp. Appeal Bd., 12 WAP 2021 (Opinion by Mundy, J.) (adopting a “no-coverage” exception to the rule that insurers may not seek subrogation from insureds)

Commonwealth v. Felder, 18 EAP 2018 (Opinion by Dougherty, J.) (holding that a claim that a juvenile homicide offender was improperly sentenced to a de facto life sentence without federal-constitutionally mandated findings about his rehabitability was invalid in light of a U.S. Supreme Court decision holding that the federal constitution did not mandate the findings)

• See also Concurring Opinion by Donohue, J. 
• See also Dissenting Opinion by Wecht, J.

Allocatur Grants

McLaughlin v. Nahata, 255 WAL 2021 (granting review to consider whether a defendant hospital may pursue a claim for indemnification from a third-party dialysis clinic)

Commonwealth v. Capriotti, 535 MAL 2021 (granting review to consider whether the Superior Court erred in its application of the so-called “silver-platter” exception to the exclusionary rule where a non-occupant of a home invited police inside to retrieve items he already discovered)

Commonwealth v. Rivera, 494 MAL 2021 (granting review to consider whether the improper admission of post-arrest, post-Miranda silence is presumptively prejudicial)

Brown v. City of Oil City, 292 WAL 2021 (granting review to consider the viability of a claim against a contractor for a known dangerous condition on land)

Berkshire Hills LLC v. Berks Cnty. Bd. of Assessment, 452 MAL 2021 (granting review to consider whether a school district's selective pursuit of real estate assessment appeals violates the Uniformity Clause of the Pennsylvania Constitution)

*In the interest of full disclosure, this author was among the counsel for an intervenor in Carter and a related action.

** Because Justice Donohue and Justice Todd, who joined the concurrence, provided the majority votes, Justice Donohue's concurrence, which is narrower on some points, is essentially authoritative on those points.