Court says Pa. senator won’t have to pay redistricting case fees

A federal appeals court on Wednesday reversed a judge’s decision to make a high-ranking Pennsylvania state senator personally pay $29,000 in legal bills for lawyers who successfully challenged Pennsylvania’s congressional districts as unconstitutionally gerrymandered.

The 3rd U.S. Circuit Court of Appeals said Senate President Pro Tempore Joe Scarnati had been sued in his professional capacity, so he is not liable personally.

“Because this is an ‘official capacity action,’ plaintiffs are ‘entitled to look for relief, both in the merits and for fees, to the governmental entity’ only,” wrote Circuit Judge Anthony Joseph Scirica. “Senator Scarnati in his personal capacity — a nonparty to this action — cannot be made to pay.”

The court, however, left in place the ruling that lawyers for the plaintiffs should be reimbursed, but did not specify who must pay.

Scarnati lawyer Matt Haverstick said that is a call that Scarnati will make. Haverstick said a decision has not been made about whether to ask the U.S. Supreme Court to reconsider the decision on the propriety of the $29,000 reimbursement.

Scarnati, a Republican, was hit with the personal judgment because he had moved the case from state court to federal court, although co-defendants who needed to agree did not go along with it, or were not consulted.

The case was returned to a state court and, in January 2018, Pennsylvania’s Supreme Court struck down the district boundaries. A month later, it imposed a new map of districts.

Republicans had held a 13-5 edge in the state’s congressional delegation. Under the new maps, Democrats picked up four seats. That made the split 9-9, although one seat, in a heavily Republican district, has since become vacant.

Elisabeth Theodore, a Washington, D.C.-based lawyer for the plaintiffs who argued the fee case before the 3rd Circuit in November, said she was pleased that the appeals court sided with her argument that the fees were warranted and “that his decision to try to derail our gerrymandering case was objectively unreasonable.”

She called it “sort of a trick” that Scarnati moved the case to federal court shortly before trial was scheduled because it put a hold on the state court proceedings.

“That’s the reason why federal law allows for fees for unreasonable removal,” Theodore said.

Theodore said taxpayers are likely to have to pay the $29,000 in fees and costs.

“If public officials get to force taxpayers to bear the burden of litigation misconduct, they’re more likely to engage in litigation misconduct,” Theodore said.

Scarnati moved the case to federal court, saying that Speaker Mike Turzai, a fellow Republican, had agreed and that executive branch defendants, including Democratic Gov. Tom Wolf, did not have to go along because they were “nominal” defendants.

Soon after, the plaintiffs challenged the decision, and Scarnati subsequently reversed himself, saying there had been a misunderstanding with Turzai, who had not agreed to the move.

Scarnati’s top aide Drew Crompton, a lawyer who supervises legal issues for the Senate Republican majority, said he approved of the decision.

“As I stated many months ago, the district court’s decision was way out of bounds. Now it has been corrected,” Crompton wrote on Twitter. He did not return a phone message.

Theodore said her law firm plans to donate its share of the fee award to the nonprofit Public Interest Law Center, a Philadelphia-based partner in the litigation.