Baer: Could Pa. courts do what lawmakers won't?

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In this photo taken Monday, July 27, 2009, the new Pennsylvania Judicial Center is seen at the Capitol complex in Harrisburg, Pa. The new $117 million, granite-and-limestone structure, will be the headquarters for the Pennsylvania judicial system.

I’m wondering whether Pennsylvania’s judiciary is on the edge of a new era, one in which our state government could actually improve.

Yes, judiciary is just one branch of a troubled tree. And it hasn’t been disease-free. But consider it in the context of the operational whole.

Our Republican-run legislative branch keeps us on the road to perdition with bad budgeting and growing debt, even as it hides behind a self-made wall of incumbent protections.

Our Democratic-run executive branch is basically frozen and ineffective, unable to win macro fixes in fiscal policy or rehabilitate a state democracy hobbled by gerrymandering and outdated voting rules.

Plus, partisanship prevails.

(Don’t tell me about the recent public pension “reform” bill. It’s a prop for upcoming political ads. It does nothing to reduce a staggering $70 billion-plus pension liability that eats hundreds of millions out of each annual budget.)

So maybe salvation wears a robe. Maybe courts can gavel in good government.

A couple things come to mind.

Last week, the state Supreme Court ruled against a common legislative practice countenanced by governors:  taking money dedicated for one thing and plugging it into the state budget to avoid raising taxes or cutting spending.

In other words, to avoid governing.

The court trashed fund transfers between 2009 and 2014 (under Democratic Gov. Rendell and Republican Gov. Corbett) totaling $400 million-plus.

The money was taken from the state’s Oil and Gas Lease Fund, dedicated exclusively to protect natural resources in a state with a constitutional Environmental Rights Amendment since 1971.

The ruling is timely. It comes as the legislature is considering another switcheroo.

There are discussions about borrowing against the state’s annual share of the 1998 Tobacco Settlement Agreement, money earmarked for health-related issues.

And the legislature already siphons money from the state Motor License Fund, restricted to highway and bridge repair and maintenance.

In each case we’re talking about hundreds of millions of dollars in a state with mediocre, below-the-national-norm health rankings and horrible rankings for roads and bridges.

So the question arises: If the court doesn’t condone the practice of treating dedicated funds like political play money, could it at some point force some honesty into a system known for fake fiscal responsibility?

As you might imagine, not everyone sees a threat.

“In my reading, this [oil and gas fund] case has limited applicability,” says Drew Crompton, chief counsel to Senate Republicans, “Not sure you can duplicate that decision, or even that this court would try, as it relates to so many other state funds.”

But constitutional expert and Duquesne Law professor Bruce Ledewitz says lawmakers treated the oil and gas fund issue “as if the 1971 environmental amendment had never been passed at all.” He says “it’s certainly possible” the court could see challenges to the use of other funds in a similar light.

And while possibly making the budget process more honest, perhaps the courts could tweak the democratic process.

Commonwealth Court just got a sweeping lawsuit seeking to end the gerrymandering of state congressional districts. Pennsylvania ranks among the worst gerrymandered states. And there’s pending state legislation to change that.

But legislative action is extremely unlikely. Why would the politicians in power who draw the lines ever cede such power? Unless under court order.

Our branches of government are supposed to be equal. I’m not sure they are. Not in Pennsylvania, not now. And so much policy and governance is driven by interest-group influence rather than a reach for the common good.

A high-ranking state official said this to me last week: “The common good has been pushed up against the wall for a long time. Maybe it’s time someone with clout (the courts?) started pushing back to get things moving and do things properly.”

Maybe it is.

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