Mike Krancer

Pennsylvania Supreme Court
Mike Krancer

• Political party registration: Republican
• E-mail: Krancer@krancerforsupreme.com
• Daytime telephone: 717-234-4901

1. What in your background prepares you for service as a judge on the court for which you are running?

Education: University of Virginia, 1976 – 1980, B.A. in Economics, with distinction. Washington and Lee University School of Law, 1980 – 1983, awarded Juris Doctor Degree in 1983, summa cum laude. I graduated first in my class, was elected to the Order of the Coif and won the John W. Davis Award for achieving the highest academic average in my class. I served on Law Review as a writer in the 1981-82 academic year and as Note and Comment Editor in the 1982-83 academic year.
The citizens of Pennsylvania deserve a Justice of the Supreme Court who is of excellent academic and intellectual background. Quite frankly, the job is very demanding from an academic and intellectual standpoint. I believe that my academic background and demonstrated academic excellence puts me in an excellent position to be able to answer the call.
Experience: As described more fully in my response to Question No. 2, I was a practicing litigator for 17 years before I was appointed as a judge. My practice was diverse and complex. I have been a judge since 1999 and I have written 110 opinions on very complex matters. Our court is part trail court and part appellate court. We have five judges. We sit as individual trial judges for our cases. Our decisions are by a majority and we deliberate as a body like any other appellate court. Thus, I have the unique claim of simultaneously having trial judge and appellate judge experience.

My experience as a litigation partner in the practice of law for 17 years has allowed me to build upon my academic background. I know how litigation works and how it affects the people involved as well as the people not directly involved with the case at hand. Also, my hands on experience as a judge has been excellent preparation for the work of a Supreme Court Justice.

Beyond my education and experience, I I love the law, which I view as the foundational underpinning of Western civilization. It is our system of law which binds us all together as Americans. I have always loved studying it, practicing it, and, now functioning as a jurist, applying it. I find being a judge highly rewarding, and would like to apply my skills as a jurist and scholar on the Supreme Court of Pennsylvania which I would consider a great honor and a great responsibility. Being a Justice would allow me to bring my skills, talents, experience and commitment to public service to a broader array of subjects, which subjects would be of great importance to not only the parties before us, but also to the law and our Commonwealth.

Also, I am very active in my community. I serve on the Board of Directors of Inn Dwelling, a non-profit faith-based initiative corporation associated with St. Vincent de Paul Roman Catholic Church located in the Germantown section of Philadelphia, whose mission is capacity-building among disadvantaged families in the Germantown and Northeast sections of Philadelphia. I work with Inn Dwelling high school students as a volunteer writing skills coach. I also serve on the Boards of Albert Einstein Healthcare Network, The Brodsky Institute for Blood Diseases and Cancer, the Jewish Federation of Greater Philadelphia, the Jewish Publication Society, the Jewish Publication Group and Riverbend Environmental Education Center where I am a former Vice President.

My "real world" experience has built upon my academic, litigation and judicial experience. It is important, I think, that judges be engaged in their communities. It makes them "human" and tempers their judicial approach with a dose of real world reality.

2. Briefly describe the nature of your law practice or, if you are a lower-court judge now, your overall legal experience.

I was a litigation partner in Philadelphia with the Dilworth firm and the Blank Rome firm from 1983 until I was appointed to the Bench by Governor Ridge. My litigation practice involved complex commercial cases, mostly in federal courts. I worked on environmental, copyright, patent, construction, contract, and federal labor law cases, among others. I represented individuals and small and large corporations for the most part. In environmental cases I represented corporate entities in defense of government suits but also as plaintiffs against other corporations. In patent, trademark and intellectual property litigations I represented both corporations and individuals. In one case I represented a college professor in a dispute with his institution about copyright rights to material the professor had authored.

I was appointed as judge of the Environmental Hearing Board (EHB) by Governor Ridge in 1999 and was confirmed by the Senate the same year. The EHB is the statutorily created state-wide trial court for environmental litigation. I have written 110 opinions as a judge of the Board all of which are published.

3. Have you been rated by the bar association? If so, how were you rated? If you have not been rated, please explain why?

I have been recommended by the Pennsylvania Bar Association for the position of Justice of the Supreme Court. In so doing the PBA had this to say:
The Candidate possesses an excellent work ethic; he is scholarly, thoughtful, hard working and passionate about the law. His opinions are complete and authoritative and have been well accepted by the appellate courts. He enjoys an excellent reputation and has been actively engaged for many years in public service and community involvement.

4. How does/should an individual judge maintain his/her independence?

To me judicial independence means separation of the judiciary from interaction with parties and advocates in cases before them outside of on the record interactions. It also means separation from interaction with members of other branches of government except in a public forum under public scrutiny and on the record. Independence also means the courage to do what is right even if that course runs counter to the agenda agendas of the other branches of government. To sum up, it means making decisions based on the law and facts and record of the case before you independent of any outside influence or consideration.

Hamilton in Federalist No. 78 sets forth a very good explanation of judicial independence and the virtue thereof in Constitutional government. In a Constitutional government, he writes, the acts of the executive and/or the legislature cannot exceed the power delegated thereto by the people through the Constitution. Thus, "complete independence of the courts of justice is peculiarly essential in a limited Constitution" since a primary function of the judiciary is to be the "barrier" to the despotism of the prince and to the "encroachments and oppressions of the representative body." The courts, writes Hamilton, "are to be considered the bulwarks of a limited Constitution against the legislative encroachments". In my view Hamilton is talking about "independence" of the judiciary in the manner I described in the prior paragraph. In order that the courts are able to properly serve their critical function of being a "barrier" and a "bulwark" against Constitutional excesses by the other branches the members of the courts must not engage in interactions with the members of the other branches regarding their respective business outside of public on the record interaction for recognized appropriate purposes.

5. What are the most pressing needs of reform in our justice system.

Judicial Independence. There is a perception today of a loss of the independence of the judiciary. As a corollary, there is a perception that the Court is what some critics call "political". As outlined in my response to Question No. 4, judges and justices should act in a manner consonant with maintaining judicial independence as described in my response to that question.

Written opinions. There is a perception that important decisions of the Court are being rendered without written opinions describing the rationale for the Court’s opinion. An example often cited is the opinion of the Supreme Court allowing the President Pro Tempore of the Senate to be the Lieutenant Governor at the same time which critics say was contrary to the Disqualification To Hold Other Office provisions of Article II, Section 6 of the Pennsylvania Constitution.

I strongly believe that opinions of the Court should be published opinions which state clearly the legal and logical rationale behind the decision. Courts are public bodies administering the public’s laws and the public’s business. "Justice" done behind closed doors is not justice as I understand it as an American. The parties to the case, their advocates and the public are entitled to a public explanation of the decision and it is the responsibility of the judicial branch to so provide same. Although my view on this applies to all cases, I think it especially important for cases with any political implications. Public confidence in not only the judiciary but in our entire political system of liberty, equality and freedom is implicated in cases with political implications.

Justice Scalia has written an excellent recitation on why we ought to be publishing opinions and why it is so important to do so in our system of jurisprudence. He said this:
"The Supreme Court of the United States does not sit to announce ‘unique’ dispositions. Its principal function is to establish precedent—that is, to set forth principles of law that every American must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the ‘rational upon which the Court based the results of its earlier decisions.’…That is the principal reason we publish opinions."
United States v. Virginia, 518 U.S. 515, 596, 116 S.Ct. 2264, 2305, 135 L.Ed2d 735, 790 (1996) (Scalia, J., Dissenting). Of course Justice Scalia’s rationale is equally applicable to the Pennsylvania Supreme Court.
My court publishes all of our opinions. This practice is instinctual and normative to me.

Public rulemaking. The public perceives that the Supreme Court has lost transparency in it rulemaking process. This is often referred to as absence of "Sunshine Rulemaking" from the Court.

My court has always operated with a nine-member public rule-making body known as the Rules Committee established by 35 P.S. § 7515. Judges are ex-officio members of the Rules Committee. The Rules Committee is constituted as follows: two members appointed by the Governor and the Secretary of the Department of Environmental Protection, and one member appointed by each of the following: President Pro Tempore and Minority Leader of the Senate, the Speaker of the House and Minority Leader of the House, the Citizens’ Advisory Council. Rules Committee meetings are open to the public. All of our rules are passed in an open public process with public input pursuant to the Commonwealth Documents Law, 45 P.S. sec. 1201-1208. To me, such a process is normative.

Whether or not the Supreme Court has the authority to promulgate rules not in the open, I believe that public confidence in the Court and the court system would be enhanced if Rules were formulated in a public process. That is the process which I have been involved in with my court and I embrace it.

6. Under what circumstances should a courtroom be closed to the public or the media?

Any analysis of this question has to start with the bedrock principles of the 1st and 6th Amendments to the United States Constitutions and Article 1, Sections 7, 9 and 11 of the Pennsylvania Constitution. Of course, the 1st Amendment provides for, among othr things, freedom of the press and the the Amendment provides, among other things, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Article 1, Section 7 of the Pennsylvania Constitution is the analogue to the 1st Amendment except that it states more when it says that the press may "undertake to examine the proceedings of the Legislature or any branch of government and that no law shall ever by made to restrain the right thereof" meaning the right to examine the proceedings of the Legislature or any branch of government. Article 1, Section 9  is the analogue to the federal Constitution's 6th Amendment and it provides for, among other things, the right of the accused to a speedy public trial. Finally, Article 1, Section 11 provides, among other things, that "all courts shall be open." This provision is unique to the Pennsylvania Constitution there being no like provision in the federal Constitution.  

The analysis would then have to focus on the governing United States and Pennsylvania Supreme Court decisions on the subject. Those would be: (1) Gannet Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)(order closing suppression hearing upheld); (2) Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814; 65 L.Ed.2d 973 (1980)(order closing trial held violative of the 1st Amendment); and (3) Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (Pa. 1980)(suppression hearing allowed to be closed).

The cases cited above, of course, analyze the question from a "free press versus fair trial" perspective in light of the relevant facts and relevant Constitutional mandates. That is exactly what I would do. I would analyze the question in light of the relevant facts and the relevant Constitutional mandates.

Interestingly, the plurality opinion of the Pennsylvania Supreme Court in Hayes did not find that the "open courts" clause of Article 1, Section 11 of the Pennsylvania Constitution provides any additional requirement or mandate that courts be open to the public and the press than do the other federal Constitutional provisions mentioned earlier. However, as I noted earlier, this "open courts" provision is unique to the Pennsylvania Constitution and it has no federal analogue. Being a textualist and an originalist in my judicial philosophy I find Justice Flaherty comments in his dissent in Hayes quite meaningful to me when he said:
Quite simply, our Constitution plainly states, "All courts shall be open," thus proscribing the closing of a court proceeding. There are no exceptions and no discretion to be exercised, other than to utilize available alternatives, such as change of venue, sequestration, and the like; but, in no event is the closure of a court proceeding constitutionally permissible.
Hayes, supra, 414 A.2d at 339.

I would like to bring to the Editors’ attention my decisions in Waste Management v. DEP, 2005 EHB 71 (February 14, 2005) and 2005 EHB 123 (February 22, 2005) which involved the subject of public availability of information. In that case, I rejected a claim of "executive privilege" asserted to certain documents. I analyze the question in depth referring to cases from many jurisdictions including the important Pennsylvania cases of Tribune-Review Publishing Company v. Department of Community and Economic Development, 859 A.2d 1261 (Pa. 2004); Lavalle v. Office of General Counsel, 769 A.2d 449 (Pa. 2001) and; Tribune-Review Publishing Company v. Department of Community and Economic Development, 814 A.2d 1261 (Pa. Commw. 2003).

My Waste Management decisions are available on my court’s website at http://ehb.courtapps.com (use the "opinion search" link and one can find opinions by date to download in a pdf format).