Statements made during the campaign trail about a similar, but unrelated case do not warrant recusal, a Pennsylvania Supreme Court justice said in declining to step away from a pair of cases pending before the high court that challenge the statutory damages cap for state agencies.

Justice David N. Wecht on Aug. 14 issued an opinion and order refusing to recuse from the cases Freilich v. Southeastern Pennsylvania Transportation Agency and Schaller v. New Flyer of America after the transportation agency argued that Wecht's 2015 comments about a similar case merited his recusal. The opinion marked the second time this year Wecht has denied a recusal request based on comments he made during his 2015 campaign.

In the cases currently pending before the court, the Southeastern Pennsylvania Transportation Agency argued that Wecht's criticism of the Supreme Court's 2014 decision in Zauflik v. Pennsbury School District means he should step away from Freilich and Schaller as the court considers whether to take up the appeals.

The plaintiff in Zauflik had sought to overturn the statutory damages cap against municipalities and schools under the governmental immunity statute, while Freilich and Schaller are challenging similar damages caps outlined under sovereign immunity, which deals with state agencies. The court in Zauflik ultimately denied the challenge, and said that only the legislature could overturn the statutory damages cap.

In his three-page opinion rejecting the recusal request, Wecht said SEPTA mischaracterized his comments as indicating that he would have ruled differently in Zauflik, and further said his comments did not indicate that he had already made up his mind about the pending appeals.

“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 counterbalance his own inclination on a given legal question with the paramount obligation to honor prior precedent,” Wecht said. “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.”

The words echoed similar statements Wecht made in February in the closely watched dispute over whether Pennsylvania's congressional map was unconstitutionally gerrymandered. In that case, League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, Wecht rejected a similar call for disqualification from Republican legislative leaders, who had also cited statements Wecht made while campaigning. In declining that request, Wecht also said the recusal request mischaracterized his statements, and nothing he said indicated how he might rule.

“These comments expressed my thoughts on the topic, something manifestly distinct from a clear commitment to rule in a certain way if presented with a specific challenge based upon a well-developed factual record and the benefit of full and fair advocacy,” Wecht said in a 20-page opinion issued Feb. 5.

Duquesne University School of Law professor Bruce Ledewitz said the comments seemed to be fair under the U.S. Supreme Court's 2002 ruling in Republican Party of Minnesota v. White, which Wecht also cited in his opinions. That ruling struck down a law that forbade judicial candidates from outlining their views about disputed issues.

Ledewitz said it likely would be problematic for a candidate to say that a specific party would lose their case if that candidate was elected, but he noted that courts have not yet explicitly decided where the line is in terms of what a judicial candidate can and cannot say.

“It will have to go directly to the party, not the issue,” he said, predicting where he thinks the line may eventually be drawn.

Ledewitz also said Pennsylvanians are likely to see more of these recusal motions because of the attention that was given to the 2015 judicial campaign.

That judicial race was historic for several reasons. Not only did the candidates raise a record amount of money, but the court was also operating under a severe ethical cloud. The high court was reeling from a scandal at the time that eventually led to the ouster of two justices for sending lewd and pornographic emails. A few years before that, another justice was convicted of political corruption.

The candidates, Ledewitz said, faced tough questions and more scrutiny than what candidates typically faced in prior elections.

“I think that campaign in 2015 was a good one,” Ledewitz said. “All of the candidates were talking about problems and the facts that needed to be addressed, and the voters got a very good understanding of the judges. But if, fundamentally, that's an issue, then you shouldn't elect judges.”

Maida Milone, executive director of the judicial reform group Pennsylvanians for Modern Courts, which advocates for merit selection of judges, said she doubts the courts will likely see more recusal motions, and said the requests Wecht has received may lead other candidates to be more cautious.

Milone noted that one of the canons regarding judicial conduct bars judges from making statements that would “reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”

“It's a tightrope they have to walk. From a PMC perspective, I would rather they be in the position that they not have to walk that tightrope,” Milone said. “If they have merit selection, we won't be worried about the campaign trail.”

Kline & Specter attorney Thomas R. Kline, who is representing the plaintiffs in Freilich and Schaller, and who represented the plaintiff in Zauflik, said in an emailed statement he is glad Wecht will consider the appeals.

“We are pleased to see that Justice Wecht will participate in consideration of the petition and hopeful that the court will take up this issue of paramount importance again,” Kline said. “We are strongly convinced that the overwhelming considerations and equities, despite prior rulings, are on the side of two terribly injured victims in two separate separate accidents whose claims are eviscerated if the draconian cap which is unjust and unconstitutional is allowed to stand.”

Mark Gottlieb of Offit Kurman, who is representing SEPTA, did not return a call seeking comment.