00:01 - Good morning. We, uh.

00:05 - Welcome everyone to

00:06 - our March session.

00:15 - Hey, when we were able to

00:16 - sit in to, which we helped.

00:23 - Extra day, we will have groups

00:24 - stop by by high school students,

00:24 - college students.

00:33 - We have 1 special group that's

00:34 - been with us quite a number of

00:34 - years,

00:38 - and I would ask to mention them

00:39 - and walk them through our Thank

00:39 - you are always happy to have

00:40 - students join us

00:52 - here normally in 1 of

00:52 - our current rooms,

00:55 - but this year remotely 1

00:55 - particular group is from city.

01:03 - It's from they are from the

01:03 - Lincoln High school, which is my

01:04 - alma mater in what city and this

01:04 - group is the senior class.

01:14 - A P. U. S government and

01:15 - politics and what is interesting

01:15 - about them is their teacher Mr.

01:23 - David Davis has been taking the

01:23 - kids to 1 of our courtrooms for

01:24 - the spring session every year

01:24 - for 10 years.

01:32 - They started by going to

01:33 - Harrisburg and then they.

01:37 - Started going to Philadelphia,

01:38 - and I believe the last 8 years

01:39 - they have been in Philadelphia,

01:39 - they make a field trip out of it

01:51 - Spend today with us

01:51 - in our court room.

01:55 - And then tore some of the, the

01:55 - important stuff areas of

01:56 - Philadelphia to learn more about

01:57 - Pennsylvania and the United

02:08 - They can see us understand.

02:09 - They are gathered in the.

02:13 - High school library and, uh,

02:14 - they are all watching this

02:14 - today. I hope there are some

02:15 - future lawyers. They're in great

02:23 - The excellence of the argument

02:24 - that we here today, so welcome

02:24 - students.

02:31 - Thank you, we're walking

02:31 - you will call now 1st.

02:36 - Right.

02:42 - This is in the matter of Mormon

02:42 - representing himself is Mr

02:43 - Donald Mormon, representing the

02:43 - office of disciplinary counsel

02:52 - This case involves a, uh.

02:56 - Just visionary racing for life.

03:00 - The attorney and the.

03:05 - Mr. Moore I'm guilty of

03:05 - crimes of forgery and tapped.

03:10 - And the disciplinary or our

03:10 - Supreme Court has recommended.

03:15 - Is this environment? The court

03:15 - this morning is entertaining.

03:20 - That we're all argument

03:20 - for Mr. mormon's request.

03:24 - Mr. form and would you proceed.

03:33 - Hey, please the court and what

03:34 - we're here today to look at.

03:37 - Is in my opinion, what is

03:38 - interest me let them know.

03:42 - Which I represented, I've

03:43 - argued, and I've presented

03:43 - testimony that.

03:48 - That is what I did, I was a

03:48 - member of a, when you free

03:49 - maintenance association where I

03:49 - was charged with 2 others.

03:54 - With projects and paying bills

03:55 - we had a practice of signing

03:55 - checks in blank.

04:00 - With the fixing our signatures

04:00 - about checking filled in.

04:03 - Standard factors that we

04:03 - did use for many years.

04:06 - Every other nation large

04:06 - that I had attended.

04:10 - Many throughout the state,

04:11 - here's a similar fact however,

04:11 - in this case 1 of the other.

04:16 - Simon indicated that he did not,

04:16 - in fact, signed the check, we

04:17 - would meet at least.

04:24 - Twice a month, sometimes more

04:24 - typically, throughout the year

04:25 - in the summer months, the

04:26 - largest would be dark, which

04:31 - And we would meet at least once

04:32 - a month to sign checks to pay

04:33 - the regular and ordinary bills.

04:35 - That's what we did during the

04:36 - timeframe in question. Not bills

04:36 - were left, unpaid.

04:40 - However, during that same time

04:41 - frame, 1 of the other

04:41 - signatories was.

04:44 - An administrator of

04:45 - an estate for his.

04:49 - Unfortunately, he did not

04:49 - identify other errors.

04:55 - When that seems like dealing

04:55 - with sales before for the

04:56 - county.

05:00 - And that other secretary was

05:01 - held accountable for me

05:01 - accountable.

05:05 - And that's and forward and said

05:06 - he was not signing the checks,

05:06 - which were, you.

05:10 - I could not prove

05:10 - any difference. So.

05:13 - You're talking with the

05:13 - attorneys who I had.

05:18 - There's a district attorney as

05:18 - well it was agreed where we

05:19 - enter the best place and not

05:19 - face any potential jail time.

05:23 - That was my paramount

05:24 - concern at that.

05:29 - During the disciplinary process,

05:29 - I explained that to the

05:30 - committee to the board and

05:30 - fortunately no 1 grasp that

05:38 - It was only there was a play

05:38 - because it was entered

05:39 - something.

05:42 - Done wrong. There was no

05:43 - consideration given for your

05:43 - morning morning.

05:49 - It's just a spare I think that's

05:50 - absolutely correct. I think the

05:50 - horse has left the bar.

05:54 - You pleaded guilty you can't

05:55 - plead guilty in in America in

05:55 - the United States.

06:00 - If you don't say on the record

06:01 - that the reason you're full, you

06:01 - can give it to you did it.

06:05 - Once you get that, I don't think

06:06 - you can argue in the alternative

06:06 - and subsequent proceedings.

06:11 - And, indeed, we have a rule of

06:12 - disciplinary enforcement. I'm

06:12 - sure you're well aware of 214 8.

06:13 - it says the go to the police

06:16 - So, respectfully, I think.

06:21 - At least for me, you're wasting

06:21 - your breath, you pleaded guilty.

06:26 - For our purposes, you did it if

06:27 - you didn't do it, perhaps we

06:27 - should remain, I don't know that

06:28 - we can do this. I don't know the

06:36 - That's not where I'm from.

06:41 - Valentina which states and the

06:41 - circumstances surrounding the.

06:44 - Are important for this process

06:44 - for the disciplinary process.

06:48 - And that's what the boards fell

06:48 - to follow. The board took the

06:49 - approach and you'd get voiced.

06:54 - There was no other thing

06:54 - necessary other than your guilty

06:55 - plate. Hey, Scott specifically

06:56 - said, that's not the case. We

07:02 - That's what I'm trying anything

07:03 - else. Mr. Mormon. I have a quick

07:03 - question counsel just for the

07:04 - record. Are you admitting that

07:12 - And my best interest

07:13 - to admit, so yes.

07:16 - No, no, that's not the question

07:17 - I asked for you because

07:17 - candidly.

07:23 - I'm going to ask for 1 more

07:23 - time, otherwise it seems like

07:24 - what you're trying to do is

07:24 - share with us that you are, you

07:37 - So I'll ask you 1 more time. Did

07:38 - you steal from your Masonic

07:38 - lodge? Yes. Or no? Yes.

07:43 - And the reason why I say

07:43 - yes, sir is because.

07:48 - I did use the checks in blank.

07:53 - Which were not

07:53 - specifically authorized.

07:57 - I did that based

07:57 - upon prior practice.

08:00 - Did not have that

08:01 - is my time. Yeah.

08:03 - Do you spend it on

08:04 - your personal welfare?

08:08 - I did not sir, as I've provided

08:08 - proof to the board I had.

08:12 - Bills paid through the

08:13 - association regularly.

08:18 - Timely and with the checks, and

08:18 - sometimes with my personal

08:19 - credit cards.

08:24 - That I take texting blank, or

08:24 - when you get to Sam's club or

08:25 - some other place.

08:29 - Where the supplies we would need

08:30 - supplies and whatnot would be

08:30 - less expensive. So last question

08:31 - I'm going to ask so are you

08:42 - Did you use it for your personal

08:42 - use in any form or fashion?

08:45 - That's correct. I did not.

08:45 - I have nothing further.

08:50 - Thank you, sir. Mr Barbara. And

08:50 - you had the opportunity we ran

08:51 - it to.

08:54 - Say what you'd

08:55 - like and you, but.

08:58 - Describe the circumstances

08:59 - of your plate.

09:04 - Do you have anything else to

09:05 - offer in mitigation capture the,

09:05 - the recommendation of the board

09:06 - that.

09:14 - Department? Yes, sir. That would

09:14 - be that. I've had a 32 year

09:15 - career without any criminal.

09:22 - Nor disciplinary issues, I've

09:23 - been an active member in my

09:23 - community since this has come to

09:24 - light and I have acknowledged my

09:33 - I have many many clients

09:34 - who have asked.

09:38 - When I would be available to

09:39 - represent them again, to which

09:39 - I've had to respond I may not

09:40 - until I'm so authorized I have

09:49 - Imposed upon me, I'm no longer

09:50 - on intermediate house arrest.

09:50 - I'm simply repaying the finds at

09:51 - monthly right?

09:54 - I'm waiting for my

09:55 - life to continue it.

09:59 - Requesting that this morning,

09:59 - this body consider that.

10:04 - And that I have in fact taken

10:04 - responsibility. Where else I can

10:05 - make any other active contrition

10:06 - to make it. So, thank you. Well,

10:16 - If you didn't use it

10:17 - for your personal.

10:18 - Initially, I had money

10:19 - that you never.

10:21 - Yeah, that that's nonsense.

10:27 - Okay, at that time, sir, my, my

10:28 - attorney and I were negotiating

10:28 - with the lodges.

10:31 - To repeat everything

10:32 - they claim was gone.

10:36 - In order to have everything no

10:37 - promised and there'd be no

10:37 - criminal charges. Unfortunately,

10:38 - our district attorney didn't

10:45 - Didn't use any of this money

10:45 - lately to avoid that this

10:46 - process number 1 the criminal

10:46 - process number 2.

10:52 - Okay, thank you. Thanks sir.

10:52 - Disciplinary counsel. Mr.

11:00 - Thank you check just to say

11:00 - where honorable chief justice

11:01 - and justices of the Supreme

11:02 - Court of Pennsylvania. I am

11:13 - Uh, the question of whether

11:14 - Donna Blake Mormon should be

11:14 - disbarred.

11:18 - Uh, as recommended by

11:19 - unanimously by both the

11:19 - disciplinary board, and the

11:20 - hearing committee, which

11:26 - Is our position as it was of the

11:27 - disciplinary board, and the

11:27 - hearing committee that any

11:28 - lawyer.

11:33 - Who, over a period of 14 months

11:33 - commits 83 felonies stealing

11:34 - almost 50,000 dollars should be

11:35 - disbarred. Mr.

11:40 - Mormon has not presented

11:40 - anything, which would mitigate

11:41 - his misconduct when he stays to

11:41 - the absence of a disciplinary

11:48 - This is something which is

11:49 - simply expected of lawyers that

11:49 - might be the absence of an

11:50 - aggravating circumstance of of a

12:01 - 2nd of all Natalie.

12:06 - Yes, you have before you the

12:06 - record, you're familiar with it.

12:07 - We had the brief.

12:10 - Did you hear Mr mormon's

12:10 - presentation to the court?

12:13 - Yes, I did. Do you believe

12:14 - though it was honest and

12:14 - forthcoming.

12:18 - No Mr. Mr.

12:21 - Mormon 1st of all enters a plead

12:22 - guilty and as it's reflected in

12:23 - the transcript of this guilty

12:23 - clay, he says he's pleading

12:35 - He claimed in response to

12:36 - question by justice Dougherty,

12:36 - that he, none of this money for

12:37 - his personal benefit. Is that

12:44 - That cannot be accurate that is

12:44 - contrary to his guilty plate and

12:45 - Mr. Mormon. The only evidence of

12:46 - that was Mr mormon's own

12:58 - His the issue of whether he is

12:59 - guilty, or whether he stole

12:59 - money, whether he used his

13:00 - present purposes is.

13:05 - Overweight under the rules of

13:06 - this plan enforcement. The only

13:06 - reason we're here today is to

13:07 - determine the degree of

13:16 - That what he is trying to do by

13:17 - saying the money was not used

13:18 - for his own purposes is to

13:18 - revisit.

13:24 - The question of whether he

13:24 - committed to crimes, he just

13:25 - cannot do that under our rules

13:25 - and that.

13:31 - Valentino simply does not mean

13:32 - as Jesse said, do it any roles,

13:32 - because is Gail is a legal fact,

13:33 - it was established by police so

13:41 - Exactly, exactly. He

13:41 - has admitted stealing.

13:48 - Almost 50,000 dollars, he made

13:49 - restitution under pressure at

13:49 - the time of the criminal

13:50 - charges, which tend to be filed

13:55 - Uh, he did not make the

13:56 - restitution in some time of his

13:56 - preliminary hearing.

14:00 - Council can I could I

14:00 - follow up on the depth the.

14:06 - Does it in your view, should

14:06 - it make a difference to us?

14:11 - And, you know, please advise if

14:12 - the, if the case is tell us

14:12 - anything in this regard.

14:17 - That the convictions did not

14:17 - involve client funds. In other

14:18 - words, does that matter.

14:22 - Um, uh, here, it's the mason

14:23 - suppose it was an, for his kids,

14:23 - for example.

14:29 - I'm just wondering whether

14:29 - you see a distinction there.

14:33 - My impression from the cases is

14:33 - that most of them have involved

14:34 - client funds.

14:37 - And I suppose that's just

14:38 - because that's what goes on out

14:38 - there for the most part.

14:42 - Could you comment on that there

14:43 - have been other instances where

14:43 - lawyers have stolen from those

14:44 - who were not their clients

14:56 - Uh, the case of office at this

14:56 - fire council versus caseware,

14:57 - where Mr. funds from his sisters

14:58 - and nephews.

15:05 - How Mr Mormon, regardless of

15:05 - whether these were client funds,

15:06 - these were certainly funds

15:06 - entrusted to him.

15:13 - They were not that these

15:13 - were not his funds.

15:16 - As a lawyer, you cannot take

15:17 - your hat off as a lawyer.

15:21 - And say, I'm not a lawyer at

15:22 - this point in time therefore, my

15:22 - fest is less serious than it

15:23 - would be had I stolen client.

15:31 - Council this is just to start

15:31 - following up from justice.

15:35 - You indicated that this key

15:35 - swatter what was the ultimate

15:36 - sanction against that council?

15:40 - Todd Mr. Natalie.

15:49 - In your preparations

15:50 - for for this argument.

15:54 - Have you uncovered any cases in

15:54 - Pennsylvania any disciplinary

15:55 - cases?

16:01 - Where felony crimes were

16:01 - committed, and there was an

16:02 - indication of them finding a

16:02 - field.

16:06 - And the sanction

16:07 - issued by our court.

16:10 - Was anything less

16:11 - than department,

16:13 - I think,

16:17 - of 1 off the top of my head that

16:17 - where the sensor was in

16:18 - department I'm sure there

16:18 - probably weren't criminal cases

16:27 - I think 1 of them cited,

16:28 - I think,

16:29 - in Mr.

16:31 - mormon's brief the case of the

16:32 - Assad case. Mr. Assad was

16:33 - convicted. Not fast.

16:39 - But he was convicted,

16:39 - I believe of.

16:44 - Forgery by obtaining false

16:44 - prescription to obtain

16:44 - prescriptions for his own

16:45 - benefit. And this is a thought

16:56 - Primarily, how is that? How is

16:56 - that personal in nature Council?

17:02 - With that, because it

17:02 - misappropriated goods from

17:03 - another.

17:08 - I mean, what makes that personal

17:08 - in nature? I mean, are you

17:09 - suggesting you had mitigation

17:09 - defensive, Brian defense?

17:16 - Mr. Assad I believe he did. I

17:16 - believe Mr Assad did have such

17:17 - mitigation. He also was Mr.

17:26 - Mormon Simon his case for the

17:26 - purpose of saying that well, Mr

17:27 - Assad did not participate in the

17:28 - disciplinary proceedings. But I

17:35 - Assad, however was found by the

17:36 - disciplinary board to be

17:36 - credible in his assertion that

17:37 - because of his physical mental

17:48 - So, there was no aggravation in

17:49 - his failure to participate in 1

17:49 - followup question. The cases

17:50 - that you cite in your brief,

18:00 - Yeah, uh, what's the citation is

18:01 - the case that you are referenced

18:01 - earlier.

18:05 - Mr. cheese water yeah, it's

18:06 - office of this 100 council

18:06 - versus key sweater, but I do not

18:07 - know the exact citation for that

18:16 - That's that was my case. So I

18:17 - should be able to I think it's.

18:21 - K, I. E. S.

18:24 - E. W. E. T. T. E. R.

18:31 - Okay, thank you. You want the

18:32 - spelling B you want the spelling

18:32 - me that was right or not. I'm

18:33 - sure I'm sure that will be

18:44 - Mormon?

18:46 - Told us today that

18:47 - some of these.

18:49 - Um, missing money came from.

18:55 - Expenses, for example, he talked

18:56 - about being at San Sam's club

18:56 - and charging items for the

18:57 - Masonic lodge on is Sam's club

19:06 - With these checks, did he ever

19:06 - provide any documentation to

19:07 - support that?

19:11 - Theory, I think he provided to

19:12 - the hearing committee of certain

19:12 - bills and.

19:19 - Uh, and minutes of the meetings

19:20 - of the Mason's lodge, however.

19:26 - The only person there to

19:26 - authenticate those those.

19:32 - Exhibits was Mr. Mormon. The

19:32 - only person who testified that

19:33 - was Mr Mormon. All of this is

19:33 - contrary to his guilty play. And

19:41 - Thank you, thank you, but we

19:42 - understand the issue in that.

19:44 - I appreciate the advocacy.

19:48 - Thank you for the privilege

19:48 - of appearing. Thank you.

19:53 - Like, a fresh breathe, but

19:54 - right all the next case.

19:59 - Thank you.

20:33 - This argument is General Motors

20:33 - Corporation versus income off

20:34 - the Pennsylvania sending the

20:34 - commonwealth to Pennsylvania is

20:44 - Good morning. This is your

20:45 - corporate income tax case?

20:50 - Which concerns a deduction that

20:50 - permits corporations carry net

20:51 - losses across years.

20:57 - In that style communications

20:58 - versus commonwealth, this court

20:58 - found that a 2Million dollar cap

20:59 - and pushed by the legislature.

21:06 - A net loss carry overs, violated

21:07 - the Pennsylvania constitution's

21:07 - uniformity clause. President

21:08 - appeal, concerns further

21:22 - Thank you, sir Mr chief justice

21:22 - sent me please the court. My

21:23 - name is barked alone and I'm

21:23 - with the Pennsylvania attorney

21:29 - I'm here on behalf of the common

21:29 - law on the issue of

21:30 - productivity.

21:34 - To quote, the court directly,

21:35 - the decision of this court

21:36 - invalidating a tax statute.

21:39 - Takes it back as of the date of

21:40 - the decision and is not to be

21:41 - applied retroactively.

21:44 - As eyes gas at 205 and

21:45 - it's also the rule.

21:50 - Not the exception again, quoting

21:51 - ordinarily a rule ruling and

21:51 - validating a tax statute is not

21:52 - applied retroactive.

21:58 - Understand that works at

21:59 - 325. that is all that was.

22:03 - And that is the

22:03 - that was applied.

22:09 - Next to X, Ray, I'm sorry to

22:09 - interrupt, but I want to clarify

22:10 - this from the get go. We're not

22:10 - talking in this case about a

22:22 - I don't have that wrong.

22:24 - Yes, your honor I think we are

22:25 - talking about a taxi statutes

22:25 - because the.

22:29 - It comes out of the tax

22:29 - code and calculates.

22:34 - The adoption is part of how you

22:35 - determine what what tax is paid

22:35 - not payable. So, that is why the

22:36 - general rule of productivity.

22:44 - Is applicable here as it as in

22:45 - next hell. So, yes, this is

22:46 - attacking statute. So, even

22:46 - though the specific provision

23:00 - Deductions you're saying that

23:00 - that distinction without a

23:01 - difference or mixed health

23:01 - concerns itself with deductions,

23:12 - That's the way the productions

23:12 - work were formulated, violated

23:13 - the uniformity costs, but it's

23:14 - still the same topic.

23:19 - We're still talking about the

23:19 - net won't carry over deductions.

23:20 - We're talking about ad tech

23:21 - style.

23:22 - And we're talking

23:23 - about that here um.

23:26 - So that and, and index

23:27 - count, the tax payer.

23:34 - Retroactive applications, so he

23:34 - could get a refund and this

23:35 - court held.

23:40 - Uh, that there won't be no

23:40 - retroactivity with respect to

23:41 - refunds or assessments. Now,

23:41 - there is an exception to the

23:47 - That is retroactivity 1 of those

23:48 - exceptions has to do with

23:49 - whether or not.

23:52 - A decision and answer a

23:53 - new principle of water.

23:59 - But Nextel did it represented a

24:00 - break from what this score had

24:00 - previously? Decided? Warner

24:01 - Brothers.

24:05 - retroactivity can

24:05 - also sometimes apply.

24:09 - Where decision is not forward

24:09 - looking at next. How was forward

24:10 - looking you talked about?

24:12 - Um, the tax and not being a.

24:16 - Enforceable going forward

24:17 - violate they're going to spend.

24:25 - You started off by signing gas

24:25 - in another case, suggesting the

24:26 - tax.

24:32 - Our perspective on you then, so

24:32 - to the argument, the Chevron oil

24:33 - case.

24:40 - That has a 3 part test for

24:40 - approach or retro activity.

24:46 - Is there something special is

24:46 - that your research is revealed

24:47 - regarding tax taxes that takes

24:48 - them out of Chevron? Or is this

24:56 - Like, any other where we apply

24:56 - tests to determine productivity

24:57 - and record activity.

25:02 - I think I think the way I would

25:02 - phrase it your is the way that

25:03 - this was framed in gas at 285,

25:03 - which is to say the reason you

25:12 - Is because of the potential

25:13 - danger to the public.

25:18 - In having taxes that are

25:18 - paid budgeted and spent.

25:23 - That's why the general

25:23 - rule is productivity.

25:26 - And I think the, the

25:26 - point of the Chevron.

25:33 - Uh, factors is to determine

25:34 - whether or not cross activity

25:34 - should not apply, not whether or

25:35 - not it should apply it.

25:40 - And as we detail

25:40 - in our briefings.

25:43 - We don't think any of those

25:44 - factors are satisfied here.

25:48 - Um, I've explained why

25:49 - prospectively is the general

25:49 - rule, but.

25:52 - Just going to the

25:53 - Chevron factors.

25:56 - There was a new principle

25:57 - of law that was announced.

25:59 - In Excel and to understand that.

26:04 - You have to understand that

26:05 - we're talking about 2 different

26:05 - kinds of taxes.

26:09 - 1, I think people can easily

26:10 - understand where you have tax

26:11 - brackets and depending on how

26:11 - much your your tact is worth.

26:16 - You get a different percentage

26:17 - of taxable income so you're.

26:22 - Like, for example, coach the

26:22 - state, the threshold was 5,000

26:23 - dollars. That's a tax bracket.

26:27 - At at 5,000 dollars,

26:27 - or you pay nothing.

26:31 - And above that 5,000 dollars

26:31 - in the state tax, you paid 2%.

26:34 - That is entirely different from

26:35 - what was presented in next out.

26:39 - That where the percentage of tax

26:40 - never changed, there was no

26:41 - variations.

26:43 - It was just a question of how

26:44 - you calculated the tax base.

26:46 - And before next out, just

26:47 - like a Warner Brothers.

26:52 - The way you calculated the tax

26:52 - base, there was a dollar

26:53 - limitation.

26:55 - Whatever now there's a dollar

26:56 - invitations 2000 dollars.

26:58 - Here the dollar limitations

26:59 - 2Million dollars.

27:01 - I guess that's adjusting for

27:02 - inflation, but the point is.

27:05 - We don't have a very no

27:05 - Guardian in a percentage tax.

27:09 - You have a difference in the way

27:10 - the attack is is calculated.

27:12 - Anymore I'm brothers, 1942.

27:15 - This court was presented

27:16 - with uniformity challenge.

27:19 - So, the calculation is tax

27:20 - space, just like the next town.

27:24 - But in Warner Brothers, this

27:24 - court said that did not violate

27:25 - the uniformity costs.

27:29 - And as we pointed out in our

27:29 - briefing, that's a decision that

27:30 - the commonwealth.

27:36 - Uh, has for decades have for

27:36 - decades, I should say, relied

27:37 - upon from Nike and 42.

27:43 - To the decision Nextel in 2017,

27:43 - they relied upon it for how they

27:44 - structured the net loss, carry

27:45 - over deduction.

27:51 - And they relied upon it in how

27:51 - they structure and certain

27:52 - calculations of capital stock

27:53 - tax.

27:57 - So, there's no

27:57 - question here that.

28:01 - A new principal were always

28:02 - announced with what with Nextel,

28:03 - because this do you know what.

28:08 - We got Warner Brothers long. We

28:09 - didn't do it. We didn't do it

28:09 - correctly. And that analysis

28:10 - with respect.

28:14 - To tax bases does implicate

28:15 - uniformity and you can't can't

28:15 - do what you'd be doing for

28:16 - decades.

28:23 - Anymore that is a change in the

28:23 - law and that satisfies the the.

28:28 - 1st Chevron factor with respect

28:29 - to the 2nd 1. I frankly, I think

28:29 - that's.

28:36 - Kind of self evident you looked

28:36 - at whether or not the decision

28:37 - is forward looking.

28:41 - Any decision at this point

28:41 - 7 dollars gas at 2 and 3.

28:46 - Any decision that relates to,

28:47 - uh, just allowing taxes going

28:47 - forward is forward looking that

28:48 - easily satisfies the.

28:54 - The 2nd Chevron Council, it's

28:54 - just going to hear we decided in

28:55 - next cow.

29:03 - That it was to be applied

29:03 - prospectively only.

29:06 - What you are? That's exactly.

29:07 - So so why are we here?

29:12 - I mean, how could that case not

29:13 - apply to the parties? In that

29:14 - case? I E. Nextel.

29:21 - And yet applied to others

29:21 - from earlier years.

29:27 - I mean, why are we reconsidering

29:28 - the prospective only holding of

29:28 - next.

29:35 - We are just assigning you

29:35 - because the commonwealth courts.

29:40 - Didn't do it the way you and I

29:41 - do I understand that though. But

29:41 - isn't the answer is the court is

29:42 - ruled on that.

29:48 - I think I think you're out of

29:49 - that is very much the answer and

29:49 - he said in our briefing.

29:53 - We find it a little

29:53 - disconcerting that.

29:58 - This court has made this

29:58 - decision a number of times, and

29:59 - then in 1 of the companion cases

30:00 - to this 1.

30:04 - Send it back to the commonwealth

30:04 - court and said, please do this

30:05 - and write of the decisions we've

30:06 - already made.

30:10 - Now, in sadness, I think Judge

30:10 - prompts and below, as we pointed

30:11 - out briefing.

30:14 - Completely understood this

30:15 - Court's decision next out.

30:19 - Completely understood that what

30:20 - his colleagues we're trying to

30:21 - do was contrary, almost every

30:21 - particular to what this for his

30:29 - And I'm going through these

30:29 - various factors for the benefit

30:30 - of the court by.

30:33 - I think it'd be calculated

30:34 - it perfectly your honor and.

30:37 - I think my answer to why we are

30:38 - here is because the common law

30:38 - courts.

30:43 - With all due respect, refused to

30:44 - listen to what this court has

30:44 - already told them the next.

30:50 - Can I ask you a question? Assume

30:51 - the commonwealth court was

30:51 - correct?

30:54 - And somehow we got that wrong

30:55 - and the notion that these types

30:55 - of holdings applying to taxing

30:56 - statutes,

31:05 - apply prospectively

31:05 - the best I can tell.

31:10 - I mean, the, the argument that

31:10 - underlies all of it is what you

31:11 - mentioned earlier, there is an

31:12 - assumption or presumption that

31:22 - Money that's already spent is

31:22 - somehow not a palatable outcome.

31:29 - The commonwealth court held that

31:29 - there was no evidence that there

31:30 - was actually any.

31:35 - Harm that would result

31:36 - from repaying the captive.

31:41 - Why are they wrong? You're out

31:41 - of they're wrong because if you

31:42 - look to page 21 of the briefly

31:43 - files below.

31:46 - We told the common law.

31:51 - He was up to the general

31:52 - obligation, find disclosure once

31:52 - you will seek the amounts of

31:53 - money that are at stake.

31:58 - In these various iterations of

31:58 - allowing the next tell decisions

31:59 - to be applied.

32:04 - Retroactively we also made it

32:05 - clear to the commonwealth court.

32:11 - Update that that's the

32:11 - kind of thing that this.

32:15 - Or or that court can take

32:15 - judicial notice of. And as we

32:16 - said it in our briefing.

32:20 - Because you're absolutely right.

32:21 - That's what the court said, but,

32:21 - as we said in our briefing.

32:24 - Citing to what we presented

32:25 - to them, we found that.

32:30 - Perplexing frankly, we told them

32:30 - specifically what the damage

32:31 - was, and we told them where to

32:31 - find it. We gave them authority

32:38 - And they just acted as

32:38 - if we had not done. So.

32:41 - And I was perplexed then,

32:42 - and I'm perplexed now.

32:46 - I have just 1 other question 1

32:47 - of the, uh, made an argument

32:47 - that really sort of struck me as

32:48 - a.

32:58 - Something we should think about

32:58 - if rolling such as next Cal

32:59 - applied prospectively. Only

32:59 - aren't we giving the legislature

33:10 - At enacting

33:10 - unconstitutional statutes.

33:15 - Keeping the money that was

33:15 - unconstitutional garnered and

33:16 - then moving on because there is

33:16 - no.

33:22 - Impact as a result of by the

33:23 - announcement of an

33:23 - unconstitutional statute.

33:29 - Well, there's a couple of things

33:30 - there you're I frankly, I think

33:30 - that sounds more like a public

33:31 - policy argument.

33:35 - A legal 1, and I think this

33:35 - score has gotten the public

33:36 - policy argument that it's.

33:42 - Less comfortable to have the

33:43 - taxpayer be denied the funds

33:43 - that they paid that were

33:44 - institutional.

33:50 - As opposed to putting that

33:51 - burden on the commonwealth, it's

33:52 - pure public policy.

33:55 - Well, I guess I'd say it a

33:56 - little bit differently. You're

33:56 - keeping in mind that the whole

33:57 - point of.

33:59 - The make notes decision that we,

34:00 - as we said, the briefing was.

34:04 - The reason for productivity is

34:05 - that the decision takes effect

34:05 - when the decision is made. So.

34:11 - Whenever a taxpayer or whatever

34:11 - a Stefan, somebody might be

34:12 - entitled to.

34:16 - Again, and then from that date,

34:17 - so we don't think there's

34:17 - anything necessarily, inherently

34:18 - unfair.

34:22 - About starting and stopping from

34:23 - when the decision is made and.

34:27 - The intricacies of the equities

34:28 - that we've been talking about is

34:28 - the exact reason why that should

34:29 - be the general rule.

34:33 - I think with respect to what

34:34 - the, the speculation that Amicus

34:34 - is making is.

34:38 - I guess I would say that there's

34:39 - a strong presumption in the law

34:40 - that this court is recognized

34:40 - over and over again.

34:45 - So the general assembly

34:46 - passes is constitutional.

34:51 - I, it's obviously after this

34:51 - court, but I don't think I would

34:52 - assume that they're acting in

34:53 - bad faith.

34:58 - And I do think that the Chevron

34:58 - factors give this court enough

34:59 - leeway to look at individual

34:59 - circumstances and, and see when.

35:06 - The general rule of

35:07 - productivity should not apply.

35:10 - I obviously we don't think

35:10 - that is this instance at all.

35:16 - I just want to make 1 final

35:16 - point. I think the sort sort of

35:17 - understands where we are.

35:22 - But and I obviously, our view is

35:23 - that we should never reach

35:23 - retroactivity, but.

35:26 - Just to re, emphasize

35:27 - I think we.

35:30 - Decided he was

35:30 - talking about again.

35:34 - Judge props and completely

35:34 - understood what this forehead

35:35 - telling next town.

35:37 - And said even if.

35:42 - You get to retroactivity, which

35:43 - you should never get to.

35:45 - That this course decision in.

35:48 - Next out because of your.

35:52 - Review of the

35:52 - reservation history.

35:56 - Absolutely, for close is what

35:56 - the, what General Motors is

35:57 - seeking here.

36:00 - Which is an unlimited net loss

36:01 - is the general assembly already

36:02 - had that choice?

36:07 - And specifically said between

36:07 - that last is afternoon and no

36:08 - deduction will take no

36:08 - reduction.

36:12 - Court said that next cell grabs

36:13 - understood what this board said.

36:17 - And we think we should get to

36:18 - our activity, but if you do

36:18 - follow up, because he got.

36:25 - This decision correct

36:25 - although Mr justice again.

36:31 - Jess's Protestant

36:31 - thought we arrived in.

36:36 - Putting aside the question of

36:36 - whether next step is

36:37 - prospectively only on its face,

36:37 - which is an issue in case

36:42 - Promises thought we

36:42 - earned in Mexico.

36:47 - He thought as a matter of due

36:47 - process under the kissing case

36:48 - that the taxpayer.

36:58 - The manufacturer distinguish, or

36:58 - at least the taxpayer pays your

36:59 - tax upfront and then ask for 5

37:00 - for it. As a matter of due

37:05 - That that, that if there was a

37:05 - lack of fundamental fairness,

37:06 - when Nextel.

37:09 - Realize no benefit whatsoever

37:10 - from its litigation, even though

37:11 - other taxpayers that.

37:14 - Under the same rationale.

37:19 - Is there is a question of due

37:19 - process, federal, due process

37:20 - under this law.

37:25 - Does General Motors, because

37:26 - they bought this litigations and

37:26 - pedals or something?

37:32 - No, I think with all due respect

37:32 - as correct as judge prompts and

37:33 - was.

37:37 - On the impact of of

37:37 - this course decision.

37:41 - He was wrong about that in 1 of

37:41 - the things he, he sort of again

37:42 - with all due respect.

37:45 - Kind of missed is that.

37:50 - mckie's involved in well,

37:51 - established principle of law and

37:51 - here the law, as we discussed.

37:56 - Change with this

37:56 - court decision in.

37:59 - Nextel also, I should point out

38:00 - that in the gas and page to 81.

38:06 - Michelle, can I interrupt you

38:07 - for 3rd? Sure do me a favor.

38:10 - And, and just as a hypothetical.

38:15 - Assume for a 2nd, that

38:15 - that we interpret.

38:19 - The next case.

38:24 - Not as new law, you argue

38:24 - there's a change in.

38:30 - Old precedent, and that's a lot

38:30 - and I'm expecting that we look

38:31 - at that and we say that's a

38:31 - tried and true.

38:37 - Application to uniformity clause

38:37 - in conformity with a 100 years

38:38 - of Pennsylvania cases.

38:43 - So, a series for a 2nd, you

38:43 - don't get new law out of

38:44 - Chevron.

38:47 - Now, does McKesson and

38:47 - due process kick in.

38:50 - No, it does not kick in and

38:50 - here's the reason you are.

38:55 - Law is only 1 of the factors.

38:58 - And, uh, this court in gas.

39:02 - Talk about the occasion

39:03 - somebody somebody.

39:07 - Eyes gas point the keys now to

39:08 - the court at page 281 and said

39:09 - that precludes this as a matter

39:09 - of due process.

39:15 - And and the court,

39:16 - the court rejected.

39:21 - And so, no, I don't

39:21 - think it does. I think.

39:25 - It is, it is my, my, uh, how it

39:26 - seems to suggest that you do law

39:27 - is from the overarching.

39:32 - Factor it's not if you look at

39:33 - gas, the 3 factors in the

39:33 - Chevron test our new principle,

39:34 - but the other 2.

39:40 - And they're not, they're

39:40 - separate. It's a totality of the

39:41 - circumstances. Now.

39:46 - Let me re, emphasize that since

39:46 - we have been using Warner

39:47 - Brothers says nitrogen and 42

39:47 - through to 2017. I know that

39:59 - That your hypothetical

40:00 - sort of ignores the last.

40:04 - 60 75 years of what the power of

40:05 - Pennsylvania has been doing, but

40:06 - even if you do that.

40:11 - I think, you know, monkeys and

40:12 - does not preclude that. And

40:13 - moreover, the other thing that

40:13 - Judge brason was getting wrong

40:24 - It starts with the data, the

40:25 - decision, so there's no refunds

40:26 - no assessments when the decision

40:26 - came down in 2017.

40:33 - That's when the decision came

40:34 - down and the general assembly

40:35 - listen to this Court's change in

40:35 - the law in next out and change

40:41 - And frankly, all this discussion

40:42 - of equities, and the right is

40:42 - the exact reason.

40:46 - As a matter of public policy

40:47 - that it should be and has been,

40:47 - must continue to be prospective,

40:48 - only.

40:52 - Because if you go rippling back,

40:53 - you're going to have all these

40:54 - different complicated factors

40:54 - where I think, as you go

40:59 - Everybody has to send them to

40:59 - challenge tech statutes. They

41:00 - don't like.

41:02 - And this prospective in Nextel,

41:03 - it should be prospective here.

41:08 - And that is why we expect

41:09 - the request and to support.

41:12 - Once again, with all due

41:13 - respect, explain the courts

41:13 - error.

41:17 - And, um, uh.

41:23 - Uh, or no further

41:23 - relief for general.

41:29 - Thanks Mr. July. But your final

41:29 - point would be too and I think

41:30 - you've kind of made it

41:30 - potentially, but even if you

41:37 - Active the revenue would be to

41:38 - eliminate the net loss index for

41:38 - the.

41:44 - That's right, that is correct.

41:45 - You shared the whole net loss

41:46 - deduction, dollar cap and even

41:46 - unlimited deduction. That's the

41:57 - That's the 1 thing we know the

41:58 - general assembly would not

41:58 - choose because they had that

41:59 - choice.

42:02 - And 91 between an unlimited

42:02 - deduction and none.

42:06 - And they chose not

42:06 - thank you. I met her.

42:10 - Sounds good. Sounds like.

42:15 - Thank you to justice and

42:16 - approves the court Kyle solely

42:16 - after the taxpayer. I want to go

42:17 - justice, Donna. You to your look

42:26 - I want to make sure that we make

42:26 - a distinction between between

42:27 - remedy.

42:31 - And retro activity, because I

42:31 - think the 2 of those sort of

42:32 - blended together in, in the, in

42:33 - the discussion that court just

42:45 - Nextel had petition for refund

42:46 - and it didn't get 1, but I also

42:46 - think that there was no doubt

42:47 - that this court.

42:52 - In terms of retro activities,

42:53 - such applied the principal

42:53 - uniformity principles

42:54 - retroactively to.

42:58 - The 2007 year, and I directus

42:59 - attention to page 26,766.

43:07 - Of the next opinion,

43:07 - or he wrote this.

43:10 - By striking this provision

43:11 - that is the, the flat cap.

43:14 - All corporations for

43:14 - the 2007 tax year.

43:18 - Would be limited to taking a net

43:19 - loss, carry over deduction.

43:22 - Of 12 and a half percent other

43:22 - taxable income for that year no.

43:27 - Bit so this court did look

43:27 - retroactively and severed the

43:28 - flat cap.

43:33 - But that meant no remedy for

43:33 - Nextel because Nextel had

43:34 - already paid under the 12 and a

43:34 - half percent. So, I do think

43:43 - If which law are we going to use

43:44 - to decide the dispute and

43:44 - remedy, which is how are we

43:45 - going to fix the uniformity

43:52 - And this quarter next tell said

43:52 - we can fix the uniformity

43:53 - problem in the 2007 year.

43:57 - By striking the offending flat

43:57 - cap and if we do that, what's

43:58 - left is this percentage cap.

44:03 - There is no uniformity violation

44:04 - with a percentage cap. Therefore

44:04 - we have fixed uniformity

44:05 - problems.

44:08 - But as the Nextel,

44:08 - there's no remedy.

44:13 - So, I just want to make the

44:13 - clarification that, that, that

44:14 - we don't blend those 2 concepts

44:14 - with. And, and also so that we

44:20 - This, I think absolute rule of

44:21 - tax activity that the

44:21 - commonwealth is arguing, because

44:22 - we're blending it together with

44:34 - With that sentence and gas, and

44:35 - I'd like to thought I can I ask

44:35 - you, I don't want to interrupt

44:36 - your audio, but it records the.

44:40 - The notion that validating

44:41 - attacking statue.

44:45 - Are generally in presumptively

44:46 - perspective that.

44:51 - That's in line with the federal

44:51 - George Burns, right? U. S.

44:52 - Supreme Court they apply the

44:52 - same principle when they

45:00 - In fact, any because, you

45:00 - know, unless you can get it.

45:06 - You don't think they're all

45:06 - prospective these federal cases.

45:07 - I would direct you to the case

45:07 - of Harper.

45:12 - Harp Harper now tells us that

45:12 - all federal tax cases are

45:13 - mandatorily retroactive.

45:18 - In validating our statute

45:18 - and validating a statute.

45:21 - Is that only when there's

45:22 - no Pre deprivation remedy?

45:25 - No availability of injunctive

45:25 - relief for a position for

45:26 - reassessment.

45:30 - So we know your honor, because

45:31 - in the case, the unanimous

45:31 - Supreme Court case of right

45:32 - versus Collins.

45:38 - The U. S. Supreme Court said

45:39 - that there cannot be a

45:39 - distinction made between Pre and

45:40 - post deprivation remedies. In

45:53 - So, in the right versus Collins

45:54 - case, the U. S Supreme Court

45:55 - unanimously said, we can't

45:55 - distinguish deprivation remedies

46:02 - It's just that wouldn't be

46:03 - that was the rationale.

46:08 - Behind the due process analysis,

46:08 - and the kissing case that if

46:09 - you're going to make them.

46:14 - Pay tax payer pay in advance

46:14 - and then seek a refund.

46:19 - It offense due process to say,

46:20 - you can't get your refund.

46:25 - Because it's already

46:25 - been paid, so that.

46:29 - I think I think we we

46:29 - understand, but it seems to me

46:30 - to be a tremendous leap to say.

46:37 - That because of that scenario,

46:37 - which the U. S Supreme Court

46:38 - decided under the commerce

46:38 - clause and.

46:42 - A Pre deprivation taking

46:43 - that all tax litigation is.

46:50 - Director, and frankly, that does

46:50 - surprise me as it surprises the

46:51 - chief justice because of the

46:51 - twin pillars. In this case of.

46:59 - Protect public fist and

46:59 - encourage investment.

47:05 - So, justice bear, I wanted to

47:05 - respond to justice sailors a

47:06 - question about the test at the

47:06 - federal level and it is, it is

47:15 - All decisions are

47:15 - purely a retroactive.

47:20 - That there is, there's no

47:20 - concept of productivity anymore

47:21 - at the federal level. I believe

47:21 - that there still is at at the

47:28 - The taxpayer is not arguing for

47:28 - a blanket rule, a pure retro

47:29 - activity at the state level.

47:34 - All the taxpayer is saying is,

47:34 - let's use our traditional tool

47:35 - of the Chevron oil test.

47:40 - Which this court used in which

47:41 - the court used in gas, which the

47:42 - court used in the auto trade

47:42 - case, let's use that.

47:49 - Because there are instances this

47:49 - idea that we never go

47:50 - retroactive in a state tax case

47:50 - involving state. Uniformity is

47:57 - In fact, we always have gone

47:57 - retroactive. cope's estate was

47:58 - retroactive.

48:03 - The Bud case, which we decided

48:03 - in our briefs was 10 years

48:04 - retroactive the Columbia gas

48:04 - case was retroactive. There was

48:12 - In fact, there's never been a

48:13 - case at the state level setting

48:14 - aside next tell because I think

48:14 - we disagree with the

48:25 - Where this court found

48:25 - that a statute was.

48:29 - Non uniform at the state level

48:30 - and refused to apply that

48:30 - holding retroactively not 1

48:31 - case.

48:36 - The only cases where this court

48:36 - refused to go retroactive where

48:37 - we're at, performed a Chevron

48:37 - oil test.

48:42 - Liking or where there was

48:43 - special, procedural or revenue

48:43 - concerns involving localities,

48:44 - like, in the casino cases, or

48:55 - But when you talk about

48:55 - a state level tax.

48:59 - Involving the uniformity cause

48:59 - this court has never decided not

49:00 - to apply that retroactively. It

49:00 - has always applied that

49:09 - And obviously 1 of us will pull

49:10 - all these cases out of your

49:10 - brief and that you just said,

49:11 - and look at them. But in all of

49:16 - Was a test employ Chevron

49:17 - subsequent to his passage, or

49:17 - its, its decision.

49:22 - And before that's something, the

49:22 - equivalent, and in every 1 of

49:23 - those cases.

49:25 - Under under the test,

49:26 - we went retroactive.

49:29 - Or is there some presumption of

49:29 - retroactivity that changed with

49:30 - Chevron?

49:33 - So, the cases that were decided

49:34 - that I just mentioned after

49:34 - Chevron with the Columbia gas

49:35 - case.

49:41 - And the Gilbert associates case,

49:41 - those are decided after Chevron

49:42 - oil, and it was so clearly

49:42 - retroactive that no, 1 even

49:55 - That's what's going on at the

49:56 - federal level on the federal

49:56 - level. Everything's mandatorily

49:57 - retroactive and we're not

50:04 - Where you look to see if there

50:05 - was a change in law, and then

50:05 - you apply the other factors if

50:06 - there has been a change in law

50:12 - That was the rule that this

50:13 - court would use generally for

50:13 - other. In other instances, if

50:14 - you look at Christie versus

50:25 - Suppose we do that council and

50:26 - we go retroactive doesn't Nextel

50:27 - require us to several out the

50:27 - whole deduction? I mean, isn't

50:35 - And under that test, you've

50:36 - underpaid, so you're better off.

50:39 - Yeah, here's here's what we say

50:40 - that your honor is that this in,

50:41 - in Nextel.

50:45 - There was 2 caps there was the

50:46 - flat cap and the percentage cap

50:47 - and this court said 2 things it

50:47 - said, we're not going to sever

51:00 - So, in Nextel, the beautiful

51:01 - thing was the court could pick

51:01 - the middle ground. It was

51:02 - several, the flat cap. It could

51:13 - And to protect the steps, the

51:14 - problem with this case is we

51:15 - don't have that middle ground.

51:15 - So I would say Nextel didn't

51:25 - In the next I just a brief

51:25 - follow up count. I appreciate

51:26 - that. Just a brief follow up. We

51:26 - do know from Nextel, though,

51:36 - I mean, you can't deny that, can

51:36 - you? I can't, but this court

51:37 - also said the general assembly

51:37 - didn't want to get rid of the

51:44 - And that's and that's why that's

51:44 - why in our briefs, we make so

51:45 - much about the presumption of

51:46 - several ability.

51:49 - In other words, where you get to

51:50 - a point where you have to sort

51:51 - of irreconcilable things that

51:51 - the general assembly is looking

52:01 - Okay, and next tell the court

52:02 - could because it could

52:02 - accomplish both by the limited

52:03 - severance of the fat cat.

52:07 - But if, but if there's 2

52:08 - competing considerations, and

52:08 - this court looked at both of

52:09 - them in Nextel, how does it do

52:13 - And we say, well, the

52:13 - presumption is in favor of and

52:14 - in fact that attached act itself

52:14 - contains discoverability

52:23 - To get to a constitutional tax

52:23 - and, and that would be the flat

52:24 - cap, whether otherwise this

52:24 - court would be making the sort

52:33 - And it doesn't have, how does it

52:34 - figure out what we would have

52:34 - Todd as, as opposed to, as

52:35 - compared to index it seems to me

52:48 - Well, I guess the question to is

52:49 - is several. What right?

52:49 - September I think you can sever.

52:50 - I think you can sever the flat

53:01 - The deduction by itself, you

53:02 - looked at the statutory

53:02 - construction act attached would

53:03 - be is what remains capable of

53:15 - We all know that it's possible

53:16 - to apply the deduction without

53:16 - that. That's not what the

53:17 - general assembly.

53:22 - Well, but we don't know whether

53:23 - it's based with a choice member.

53:23 - Every state around Pennsylvania

53:24 - allows and kept in a while

53:30 - Is it true that the general

53:31 - assembly would not want

53:31 - Pennsylvania to be competitive

53:32 - because New Jersey and New York

53:43 - And I think the answer comes

53:44 - from the statutory construction

53:45 - act, which is.

53:48 - If you're faced with that

53:49 - situation where you have to sort

53:49 - of make a decision, the

53:50 - preferences in favor of if

53:58 - And we can't possibly envision a

53:59 - situation where the general

53:59 - assembly wouldn't have wanted

54:00 - that and again, because of the

54:08 - And in every surrounding states

54:08 - surrounding Pennsylvania, we

54:09 - don't think it's impossible to

54:09 - believe that the general

54:14 - And that operating loss

54:15 - deduction without a cap, I guess

54:15 - despair again, we.

54:20 - Hearing the commonwealth talent

54:20 - heard and I'm not sure we did,

54:21 - but it doesn't make any

54:21 - difference.

54:26 - And why doesn't it make

54:26 - sense? And not prejudice.

54:30 - Your client meaningfully.

54:35 - To strike the net loss, carry

54:36 - over as the remedy if you get by

54:36 - retroactivity and then, like,

54:37 - the legislature pass.

54:45 - A new net lot carry over that

54:45 - conforms with the uniformity

54:46 - clause.

54:50 - And hazard doesn't have a cap of

54:51 - 10Million or 2Million or

54:51 - 20Million. You still have your

54:52 - 202,000 of net loss, carry over,

55:04 - And therefore they're gonna

55:05 - allow net loss carrier. So you

55:05 - take it in 2023 instead of

55:06 - 22,001.

55:13 - Well,

55:14 - I would say this

55:14 - is the bankruptcy,

55:15 - a state of GM,

55:17 - so we're not taking any

55:17 - deduction in any future year on

55:18 - account of so,

55:22 - so set set that

55:22 - aside and I think,

55:23 - actually,

55:24 - so set set that

55:24 - aside and I think,

55:25 - the underlying policy question,

55:27 - all the uniform the

55:27 - retroactivity,

55:28 - the state taxes,

55:30 - real estate transfer taxes,

55:32 - taxes on 1 time gain.

55:35 - If this court has, this wouldn't

55:36 - removal of non retroactivity.

55:37 - There's never a remedy for those

55:37 - kind of tax those tax types and

55:48 - Make the auto trade case is

55:49 - interesting. Philadelphia

55:49 - imposes a mercantile license

55:50 - attacks over the years. The

55:57 - Philadelphia repeals the

55:57 - mercantile license that case the

55:58 - commonwealth court says, well,

55:58 - the cases moot, because the tax

56:10 - Philadelphia says, we just did

56:10 - self help by repealing this

56:11 - feeling. This ordinance. This

56:12 - court said that's not good

56:17 - That's not good enough. There

56:18 - was a uniformly problem. You're

56:18 - collecting taxes 4 years.

56:22 - And you, the city can't fix that

56:22 - by simply repealing the tax and

56:23 - keeping the money.

56:28 - We have to look and see, and

56:28 - they took this order a Chevron

56:29 - oil analysis to see if it was

56:29 - the uniformity was based on new

56:35 - But but this court said,

56:36 - McKesson due process requires

56:36 - that if the state collected

56:37 - attach the jurisdiction

56:48 - The, the deprivation of that

56:49 - property contrary to

56:49 - Pennsylvania law and, and all

56:50 - we're saying in this case is.

56:55 - That's the standard discourse

56:55 - should again apply Chevron oil

56:56 - to see whether there's a new

56:56 - principle of law of uniformity

57:07 - Well, then you want to revisit

57:08 - odd gas and map, which we

57:09 - reaffirmed amount area.

57:13 - I don't actually, I don't your

57:14 - honor because an odd gas this

57:14 - court did do several oil

57:15 - analysis in odd gas gas related

57:24 - From, like 1910 called

57:24 - E. H. Rockwell.

57:29 - And E, H, rockwell's said that

57:29 - the mineral interests are real

57:30 - estate for tax purposes.

57:34 - So all the taxing jurisdictions

57:35 - around the common 1 for 100

57:36 - years,

57:37 - in reliance with each Rockwell,

57:39 - we're collecting taxes

57:39 - on mental interests,

57:41 - then this court,

57:42 - in the cases,

57:45 - the independent oil and gas

57:46 - association case said,

57:47 - no,

57:48 - that's wrong.

58:02 - Middle interests are no longer

58:03 - taxable and then in gas, this

58:04 - court said, you know, because it

58:04 - reversed this test. Rockwell was

58:16 - Even in itself, the lower

58:17 - Court's had to be reversed by

58:18 - this court and, and so this

58:18 - court and ask asset applying

58:30 - Accountable for having

58:31 - collected tax under a.

58:35 - A, a tax law that was that we

58:36 - had held was was, was okay under

58:37 - this old authority. So so this

58:37 - court and gas after applying

58:48 - We're going to apply this

58:49 - decision prospectively only I

58:49 - would say, by the way Mr. alone

58:50 - when he quotes the odd gas

59:00 - The score doesn't just say a

59:00 - decision in validating a tax

59:01 - statute.

59:03 - Is applied retroactively it

59:04 - says this we reaffirm multi.

59:10 - That a decision to

59:10 - this tax court, so on.

59:13 - Explicitly involve a

59:13 - Chevron loyal analysis.

59:17 - Multi explicitly

59:17 - involved reversed.

59:22 - Um, authority make multi case.

59:22 - There was this long line of

59:23 - cases. Aero may flower that was

59:23 - reversed by the United States,

59:35 - So, in odd gas in justice, when

59:36 - this court wrote what it wrote

59:37 - in AIS gas.

59:41 - It premised it with we're

59:41 - reaffirming the, that is, we're

59:42 - reaffirming the applicability of

59:42 - the Chevron oil tasks.

59:46 - And then it applies the

59:46 - law prospectively.

59:53 - Thank you. Do you have anything

59:53 - else? You'd like to add? We're

59:54 - going to.

59:58 - Wrap this up that is all your

59:59 - 029 honor. I guess I would again

01:00 - 00.630 underscore that. The court take

01:00 - 10.873 into account the distinction

01:00 - 11.407 In Excel and retroactivity,

01:00 - 11.941 because I think if the court

01:00 - 12.542 makes that distinction about the

01:00 - 17.947 opinion in Nextel, the court

01:00 - 18.548 Nextel was retroactive and then

01:00 - 19.148 should apply the principals from

01:00 - 22.452 there. Thank you very much.

01:00 - 26.889 Thank you we'll take our usual.

01:00 - 32.362 Break and then all the 3rd case.

01:01 - 03.793 Okay call the next argument is

01:01 - 04.394 come off in Pennsylvania versus

01:01 - 12.068 Joseph. Mccabe representing Mr.

01:01 - 12.568 McCabe is Katherine Ernst

01:01 - 13.169 representing the commonwealth is

01:01 - 16.506 Mr. Stanley justice carnival.

01:01 - 24.714 Good morning talent. A veteran.

01:01 - 25.314 Was charged with test by unlock

01:01 - 25.915 we're taking after pretty under

01:01 - 26.516 the under the veterans treatment

01:01 - 31.087 court.

01:01 - 31.554 A predisposition program

01:01 - 32.021 designed to rehabilitate

01:01 - 32.588 veterans suffering from mental

01:01 - 37.527 health issues.

01:01 - 37.860 We successfully

01:01 - 42.065 completed the program.

01:01 - 42.598 And was then sentenced to 2

01:01 - 43.199 years probation in order to pay

01:01 - 47.303 34,000 dollars in restitution.

01:01 - 50.907 The 1st, day of depth review is

01:01 - 51.507 whether chapter 3, and the rules

01:01 - 56.379 of criminal procedure.

01:01 - 56.979 A chapter governing, accelerated

01:01 - 00.116 rehabilitated disposition.

01:02 - 00.450 Also governs the

01:02 - 03.686 veterans treatment.

01:02 - 04.153 2nd issue is whether the

01:02 - 08.057 United States Constitution.

01:02 - 08.558 Requires the transport to

01:02 - 12.028 dismiss criminal start.

01:02 - 12.428 Once he successfully

01:02 - 15.131 completed the veterans.

01:02 - 18.301 The breach also discussed

01:02 - 20.937 and potential application.

01:02 - 21.304 The illegal doctor

01:02 - 25.541 Mr orange miserable.

01:02 - 29.312 Please the court my name is

01:02 - 29.912 Catherine of why is it short on

01:02 - 32.615 behalf of Joseph McCain?

01:02 - 37.754 Core with this case is about,

01:02 - 38.287 is that Mr McCabe a veteran

01:02 - 38.888 disabled by a service in Vietnam

01:02 - 39.489 and an exemplary participant in

01:02 - 46.963 the veterans court program Kate

01:02 - 47.497 and come toward restitution

01:02 - 48.097 during the course of the program

01:02 - 48.664 everything possible to comply

01:02 - 53.803 with the terms of the program,

01:02 - 54.370 the question is whether he can

01:02 - 54.971 be required to do the impossible

01:02 - 55.505 and whether he cannot do the

01:02 - 58.040 impossible,

01:02 - 58.374 he should have a

01:02 - 00.076 criminal record.

01:03 - 00.443 What a man who had

01:03 - 01.444 money would not.

01:03 - 05.648 The case violated the rules of

01:03 - 06.215 criminal procedure so the 1st

01:03 - 06.749 address the rules issue, and

01:03 - 12.288 then I will address the

01:03 - 16.626 The chronic procedure,

01:03 - 17.160 regardless of which rule the

01:03 - 19.262 court into God, veterans court.

01:03 - 22.331 Restitution order was not

01:03 - 22.832 permitted by the rules of

01:03 - 23.366 procedure or pennsylvania's

01:03 - 28.204 restitution statute.

01:03 - 28.771 Either chapter 3 applies, and

01:03 - 29.372 thus veterans court should have

01:03 - 29.972 taken Mr. medicaid's ability to

01:03 - 33.342 pay into consideration when the

01:03 - 37.213 Or chapter 3 did not apply, in

01:03 - 37.680 which case there was no

01:03 - 38.281 authority for the imposition of

01:03 - 47.557 presenting restitution. At all

01:03 - 48.124 But you raised an interesting

01:03 - 48.591 issue share with us, you

01:03 - 49.158 indicated that he successfully

01:03 - 55.131 completed the program yet part

01:03 - 58.267 So, how do you, Stacey

01:03 - 58.768 successfully completed the

01:03 - 59.335 program when a central element

01:03 - 02.138 was not completed?

01:04 - 06.442 So, as a condition of he signed

01:04 - 07.043 an application, when he entered

01:04 - 07.610 the veterans port program, and

01:04 - 16.986 the application did mention that

01:04 - 20.389 And Mr. remicade wasn't fact

01:04 - 20.890 order to pay 100 dollars a

01:04 - 21.457 month, which was the, most to

01:04 - 33.436 possibly 700 dollar amounts

01:04 - 34.036 There's nothing in the veteran's

01:04 - 34.570 court manual that says that

01:04 - 35.104 there was a requirement that

01:04 - 43.212 he'd be ordered to pay an

01:04 - 45.948 Uh, to the specific amount

01:04 - 47.516 that was ultimately.

01:04 - 51.454 The council Council, the

01:04 - 52.021 allegation is that your client

01:04 - 52.588 misappropriated 34,000 dollars

01:04 - 01.597 worth of gold coins for which

01:05 - 06.135 When I, I, I'm failing to

01:05 - 06.702 understand the concept of the

01:05 - 07.270 veterans court is a conversion

01:05 - 15.411 program for that. Criminal

01:05 - 15.811 But part of that is

01:05 - 16.345 rehabilitation and restoring

01:05 - 16.946 some of the victims back to the

01:05 - 25.388 rightful property without an

01:05 - 25.888 What makes your client so

01:05 - 26.455 different that he deserves not

01:05 - 31.861 to pay the restitution.

01:05 - 32.328 For which he agreed and

01:05 - 32.895 voluntarily submitted that he

01:05 - 38.567 would on the record.

01:05 - 42.338 So, under the air.

01:05 - 42.738 The Mr. the ability

01:05 - 47.143 to execution.

01:05 - 47.743 Would have had to be taken into

01:05 - 48.277 a before the restitution was

01:05 - 48.878 ordered before the court ordered

01:05 - 55.384 34,000 dollars some more

01:05 - 55.985 That the purpose restitution is

01:05 - 56.585 to either be real rehabilitative

01:05 - 57.119 or to provide deterrence to

01:05 - 02.425 defense. It.

01:06 - 06.595 But the thing is that there's

01:06 - 07.163 allegation by the commonwealth

01:06 - 10.599 is key is that Mr repeats.

01:06 - 14.036 Needed any additional

01:06 - 14.603 rehabilitation and needed any

01:06 - 15.204 additional and indeed. Half the

01:06 - 27.183 money whether if there's a

01:06 - 27.783 So, what you're sharing with us

01:06 - 28.384 is that you want to you and your

01:06 - 28.918 client service to the United

01:06 - 31.053 States.

01:06 - 34.390 As justification for getting

01:06 - 34.890 away with stealing 34,000

01:06 - 35.424 dollars worth of gold coins.

01:06 - 43.666 That's what you're saying on

01:06 - 44.233 That is not what I believe Mr.

01:06 - 44.767 cave engaged in the veterans

01:06 - 45.301 programs. He was considered

01:06 - 48.037 exemplary by the court.

01:06 - 51.440 He acted as a role model paying

01:06 - 51.974 restitution was not the only

01:06 - 52.541 aspect of this program, but it

01:06 - 59.048 meant to excuse me it was an

01:07 - 02.385 By him at the very beginning

01:07 - 02.985 that restitution would be a part

01:07 - 03.586 of is program and, you know, the

01:07 - 15.431 veterans treatment program is a

01:07 - 16.032 And it's a volunteer program for

01:07 - 16.532 individuals, such as your

01:07 - 17.133 client, if they're accepted into

01:07 - 29.578 it to avail themselves of all of

01:07 - 30.046 Drug treatment, alcohol,

01:07 - 30.613 treatment, whatever it is they

01:07 - 31.147 need, and they're given that

01:07 - 42.291 that's why this program is so

01:07 - 42.858 D, rules that would apply to a

01:07 - 43.426 veterans court scenario, which

01:07 - 44.026 would then allow your client to

01:07 - 53.903 escape his responsibility to pay

01:07 - 55.504 And I,

01:07 - 57.339 I'm going to listen

01:07 - 00.309 to your argument,

01:08 - 00.876 but I don't see anything that

01:08 - 01.444 would lead me to believe that

01:08 - 02.011 this back court program in his

01:08 - 09.785 case was I get out of jail free

01:08 - 10.386 which entitled him to walk away

01:08 - 10.920 from an obligation of 34,000

01:08 - 12.354 dollars.

01:08 - 19.261 Probably got with that, but let

01:08 - 19.795 me add to that. You also say

01:08 - 20.396 that chapter 3 a R. D. should be

01:08 - 30.172 considered by us. That's the 1st

01:08 - 33.809 Todd, just indicated you agreed

01:08 - 34.310 your client agreed to 100

01:08 - 34.844 dollars restitution for the

01:08 - 44.587 payment of 34,000 dollars, which

01:08 - 45.121 Which exceeds the maximum 24

01:08 - 45.721 months permitted under chapter 3

01:08 - 46.288 for a date. So I'm, I find it

01:08 - 55.164 somewhat illogical to request.

01:08 - 55.698 Veterans court to apply, or

01:08 - 56.198 chapter 3 full applies to

01:08 - 56.765 veterans court when the facts,

01:08 - 06.108 the or this court blind the fact

01:09 - 06.709 Well, i1st want to address what

01:09 - 07.309 justice pod mentioned, which is

01:09 - 11.714 that.

01:09 - 12.314 Restitution is an important part

01:09 - 17.486 of the program and Mr. meditate.

01:09 - 18.020 Took that very seriously and

01:09 - 18.621 therefore he made every payment

01:09 - 19.221 that was ordered to him while he

01:09 - 23.559 was in the program and.

01:09 - 27.630 Did everything he could paid any

01:09 - 28.197 extra penny that he had toward

01:09 - 28.797 the restitution? So this is not

01:09 - 37.673 an, a thing in which Mr. vacate

01:09 - 38.207 He participated fully in the

01:09 - 38.774 program, and he would have had

01:09 - 39.375 the full amount of money to pay

01:09 - 46.315 then he could have been able he

01:09 - 48.017 Every if he had charges

01:09 - 50.586 would've been dismissed.

01:09 - 53.889 And the fact is that there is

01:09 - 54.323 another avenue for the

01:09 - 54.924 commonwealth to ensure that the

01:09 - 58.594 victim hey,

01:10 - 01.564 while you're giving someone a

01:10 - 02.097 personal record exclusively

01:10 - 03.666 because of their poverty,

01:10 - 05.834 and that comes under rule of

01:10 - 08.604 criminal procedure or 586,

01:10 - 09.138 which is Corpus missile upon

01:10 - 09.705 satisfaction or and under that

01:10 - 13.776 rule,

01:10 - 14.376 the commonwealth is permitted to

01:10 - 14.977 require as part of its basis for

01:10 - 23.152 asking for an all stop.

01:10 - 23.719 It can ask that the defendant

01:10 - 24.286 intake satisfaction, or if the

01:10 - 24.787 defendant doesn't have the

01:10 - 35.564 presence ability to my

01:10 - 36.131 That is when he has even more

01:10 - 36.699 money come his way. You would

01:10 - 37.299 pay the rest to stop paying 100

01:10 - 43.005 dollars a month.

01:10 - 45.774 Excuse me? Why did he stop

01:10 - 51.046 paying a 100 dollars a month?

01:10 - 51.547 He's under stop paying 100

01:10 - 52.147 dollars and it's been continued

01:10 - 54.316 to pay 100 dollars a month.

01:10 - 54.917 Is this about whether or not he

01:10 - 55.484 should have to pay the victim

01:10 - 00.556 for what was taken out,

01:11 - 01.023 whether he should have a

01:11 - 01.624 criminal record when someone who

01:11 - 02.157 had the money to pay at that

01:11 - 10.532 time not never argue that he

01:11 - 11.100 He absolutely can't. And will,

01:11 - 11.600 and he's been making every

01:11 - 12.167 payment that he possibly can,

01:11 - 23.912 but that's not every monthly

01:11 - 24.513 He may consistently has he made

01:11 - 25.114 0 dollars a month to this debt.

01:11 - 25.648 She still pays 100 dollars a

01:11 - 29.685 month since he left veterans.

01:11 - 35.457 Curious, I'm curious the

01:11 - 36.025 attorney aren't where you find

01:11 - 36.525 the propositions that your

01:11 - 47.336 client would have, in fact,

01:11 - 53.809 From the program.

01:11 - 54.410 My understanding is, there's no

01:11 - 54.977 promises made with people who

01:11 - 55.544 enroll in bed as to the final

01:11 - 59.148 decision or charges.

01:12 - 01.583 It is true that there is

01:12 - 04.820 no fundamental. Right.

01:12 - 05.287 Ever having your charges

01:12 - 05.888 dismissed, and the commonwealth

01:12 - 06.322 typically can use this

01:12 - 16.432 discretion and more does ask,

01:12 - 19.501 The program completion

01:12 - 20.035 successful completion of the

01:12 - 20.569 program may result in target

01:12 - 22.104 being Smith.

01:12 - 25.974 That is right and so.

01:12 - 29.111 But the commonwealth has

01:12 - 29.678 admitted in this case, that's

01:12 - 30.279 the sole reason that it did not

01:12 - 38.253 move to no charges was the fact

01:12 - 41.623 And so, the thing is, is that

01:12 - 42.124 while you may not have an

01:12 - 42.725 affirmative right in advance to

01:12 - 53.035 have your hardest Smith if the

01:12 - 56.372 And as wrongful as a condition

01:12 - 56.905 should be reversed. And that

01:12 - 57.473 goes to my 2nd argument, which

01:12 - 06.248 are just drugs in America. You I

01:13 - 08.550 And they weren't required to

01:13 - 09.151 move through veterans core where

01:13 - 10.486 they.

01:13 - 16.492 Right.

01:13 - 17.059 I'm sorry, you broke up there

01:13 - 17.659 for a moment. Can you repeat the

01:13 - 18.193 question? It was not a R. D

01:13 - 21.997 eligible, right?

01:13 - 22.564 I really don't know the answer

01:13 - 23.132 to that. To be honest. I think

01:13 - 23.732 that very well may have thought

01:13 - 30.806 better in court because he was a

01:13 - 31.340 Well, he couldn't make right

01:13 - 31.774 right he couldn't make

01:13 - 34.510 restitution at the outset.

01:13 - 34.877 If they didn't put

01:13 - 38.781 them in a R. D and.

01:13 - 39.314 They weren't required to put

01:13 - 39.848 them in veterans court where

01:13 - 43.819 they.

01:13 - 44.386 Com, so I'm sorry, just wacky

01:13 - 44.987 down. I'm good. Well, I actually

01:13 - 45.554 had the same question is just

01:13 - 56.265 this way.

01:13 - 56.799 But I want to follow that a

01:13 - 57.399 little bit. I think unlike some

01:13 - 57.966 of my colleagues from what I'm

01:13 - 01.770 hearing.

01:14 - 05.407 I may have some empathy for the.

01:14 - 05.741 Equal Protection

01:14 - 09.912 argument that the only.

01:14 - 10.446 Reason that this individual

01:14 - 10.979 doesn't get the benefits of

01:14 - 15.617 investing in support is poverty.

01:14 - 16.151 What are the same question?

01:14 - 20.956 Could the state.

01:14 - 21.423 Have look at your client

01:14 - 21.990 scenario said yes, he's a fine

01:14 - 25.360 candidate.

01:14 - 30.165 Perfect or would you be bringing

01:14 - 30.766 the same constitutional argument

01:14 - 31.366 that the only reason he's not in

01:14 - 41.477 veteran's course is poverty and

01:14 - 42.077 I'm sorry, you broke up a little

01:14 - 42.611 bit, but if I understood the

01:14 - 43.212 question you were asking, could

01:14 - 49.651 they have excluded him for

01:14 - 50.185 Without this constitutional

01:14 - 53.155 right of equal protection.

01:14 - 57.326 If the only reason that they

01:14 - 57.926 were excluding him from veteran

01:14 - 58.494 for is because he didn't have

01:14 - 09.004 the ability to pay the

01:15 - 09.538 Because he doesn't have the

01:15 - 10.072 ability to pay and that's in

01:15 - 10.606 fact what the superior court

01:15 - 16.111 found, which, of course, is not

01:15 - 16.578 But I think it's highly

01:15 - 17.179 persuasive authority and it has

01:15 - 17.746 been cited by state high state

01:15 - 23.952 courts and other jurisdictions.

01:15 - 24.553 When they've confronted similar

01:15 - 25.153 circumstances and the thing that

01:15 - 25.754 I really want to emphasize once

01:15 - 34.096 again, is that because

01:15 - 34.663 It's part of the sentence then

01:15 - 35.230 in order to order restitution,

01:15 - 35.797 he had to incentives, which is

01:15 - 45.207 not the same result, but he

01:15 - 47.009 Ask Mr McCain to make an

01:15 - 51.580 agreement or written.

01:15 - 52.180 Binding contractual agreement to

01:15 - 52.714 to make the payments to the

01:15 - 53.215 victim and then, and then

01:15 - 04.560 dismissed as hard as, as they

01:16 - 05.060 But Mr McCain would not be

01:16 - 05.627 treated differently from other

01:16 - 06.128 people that are important.

01:16 - 13.068 Because contrary to what I was

01:16 - 14.937 And your answer, I think

01:16 - 18.941 is logically consistent.

01:16 - 19.508 If there's an equal protection

01:16 - 20.008 argument, and your client

01:16 - 23.879 prevails.

01:16 - 24.479 At this juncture that that that

01:16 - 24.947 he's been deprived legal

01:16 - 25.514 protection or substantive due

01:16 - 32.988 process by, by having a criminal

01:16 - 33.589 And then you follow that, as you

01:16 - 36.592 just told me you would and said.

01:16 - 37.025 If they don't let them

01:16 - 42.164 in to veterans courts.

01:16 - 42.731 Or it could be alcohol course,

01:16 - 43.298 or any mental health court, or

01:16 - 43.832 whatever specially courts we

01:16 - 54.810 have solely, because you can't

01:16 - 55.377 We take in equal potential for

01:16 - 55.978 sort of a defensive mechanism to

01:16 - 56.578 an, in law offensive, use every

01:16 - 04.853 veteran, regardless of the

01:17 - 05.354 Oh, and and in every other

01:17 - 11.126 specially court person.

01:17 - 11.627 To force the way into the

01:17 - 12.094 program, it can thereby

01:17 - 12.661 eliminate their obligation to

01:17 - 17.399 pay restitution.

01:17 - 17.866 Under the caption clock

01:17 - 22.070 isn't that is not logical.

01:17 - 26.908 Position from where you are.

01:17 - 27.476 The commonwealth has extremely

01:17 - 28.010 broad discretion in terms of

01:17 - 30.479 deciding who to admit.

01:17 - 34.182 To these programs, and that is

01:17 - 34.683 not up for debate in this

01:17 - 35.217 matter. And nor am I arguing

01:17 - 37.586 that they should not have wide

01:17 - 39.054 However,

01:17 - 39.388 if they admit in

01:17 - 42.057 their briefings,

01:17 - 42.624 as they did hear that the sole

01:17 - 43.191 basis for the action that they

01:17 - 47.262 took was,

01:17 - 47.863 because someone doesn't have the

01:17 - 48.430 ability to pay then that then

01:17 - 49.031 that shows that their discretion

01:17 - 58.507 was being used to discriminate

01:18 - 01.243 I mean, on 1 level of

01:18 - 01.810 abstraction, I understand what

01:18 - 05.047 you're saying, but doesn't that.

01:18 - 10.519 Doesn't that ignore.

01:18 - 11.019 Is consent to the veterans

01:18 - 11.553 treatment court conditions I

01:18 - 12.120 mean, I mean, it that's not a,

01:18 - 22.664 um, a non existent or

01:18 - 23.098 Um, with the relevant

01:18 - 23.699 colloquiem, et cetera and forms

01:18 - 24.266 consented to the conditions of

01:18 - 29.705 this program, which is a matter

01:18 - 33.542 Doesn't that aggregate these,

01:18 - 34.076 um, these other issues that

01:18 - 36.078 you're now complaining of.

01:18 - 41.750 Well, as I said, when he entered

01:18 - 42.284 the program, it said that he

01:18 - 42.784 would pay that part of the

01:18 - 52.594 program would involve the pain

01:18 - 55.864 It didn't specify full

01:18 - 56.431 restitution. It didn't specify

01:18 - 57.032 if you cannot pay before the end

01:18 - 01.436 of the program, then you get a

01:19 - 04.806 And as I said, there's I see no

01:19 - 05.407 problem whatsoever in the rules,

01:19 - 06.007 or for equity is certainly that

01:19 - 11.246 Mr. indicated can be made to

01:19 - 14.516 And he has no objection to that

01:19 - 15.016 he's been making payments

01:19 - 15.484 through this, that they

01:19 - 20.922 understand we're going to

01:19 - 24.092 I may ask 1 question

01:19 - 26.661 more procedural Council.

01:19 - 30.665 Let's get back to the original

01:19 - 31.199 question, the application of

01:19 - 31.700 chapter 3 from a procedure

01:19 - 44.780 overall to a veterans court as

01:19 - 45.380 it clearly indicates that there

01:19 - 45.981 are no rules and the individual

01:19 - 46.548 traditional district may adopt

01:19 - 53.054 local rules for administrators

01:19 - 57.092 Excluded from the establishment

01:19 - 57.592 clause is any reference to

01:19 - 58.093 chapter 3 of the criminal

01:19 - 04.299 procedure rule.

01:20 - 04.866 I'm interested in finding your

01:20 - 05.400 argument is how you believe

01:20 - 06.001 chapter 3 is applicable when the

01:20 - 10.572 establishment.

01:20 - 11.039 Well, as for all problem

01:20 - 13.241 solving courts excludes it.

01:20 - 14.910 Secondarily,

01:20 - 15.143 to that,

01:20 - 18.780 your 2nd issue as to raising or

01:20 - 19.281 the ability to pay to meet

01:20 - 19.881 somewhat troublesome outside of

01:20 - 27.355 justice fair is concerned about

01:20 - 27.923 which I kind of disagree with

01:20 - 28.990 Gus fair on the concept.

01:20 - 31.326 Because this is a voluntary

01:20 - 31.927 program. The question that I had

01:20 - 33.328 is.

01:20 - 36.565 In pursuit day, or in

01:20 - 41.870 lieu of veterans court.

01:20 - 42.437 He had to enter a play a built

01:20 - 43.038 for which restitution would have

01:20 - 48.710 been entered.

01:20 - 49.311 And his ability to pay would not

01:20 - 49.845 have been at issue until the

01:20 - 50.278 commonwealth moved for

01:20 - 56.985 enforcement.

01:20 - 57.552 Or incarceration, which is the

01:20 - 58.119 triggering point for the court

01:20 - 02.958 to consider.

01:21 - 03.558 1 ability to pay as we know the

01:21 - 04.092 criminal statute written. So

01:21 - 04.593 that restitution is to be

01:21 - 11.933 applied as is a time of

01:21 - 15.470 And our enforcement that the

01:21 - 16.037 ability to pay now old judges

01:21 - 16.504 do, that will take into

01:21 - 20.976 consideration the ability to pay

01:21 - 23.979 But the question comes back to

01:21 - 24.579 fruitful share with me where the

01:21 - 28.283 establishment clause.

01:21 - 31.186 Permits the introduction, or the

01:21 - 37.459 adoption of chapter 3 and why.

01:21 - 37.993 With it being excluded, you

01:21 - 38.560 enjoyed the benefit of paying

01:21 - 43.365 the restitution yet.

01:21 - 43.932 Restitution under the current

01:21 - 44.532 status of his conviction permits

01:21 - 50.105 him to continue.

01:21 - 50.705 And that's and it just continual

01:21 - 51.273 probation and so he's able to

01:21 - 53.541 make his.

01:21 - 54.142 Payment, and or now face in the

01:21 - 57.879 ability to kind of hearing.

01:21 - 58.480 Does that make sense to you? Or

01:21 - 59.014 do you need me to everything

01:21 - 59.948 that.

01:22 - 03.385 I'll do my best, so it is true

01:22 - 03.852 that section 916 doesn't

01:22 - 04.419 explicitly reference therapy,

01:22 - 13.895 but nor does it represent the

01:22 - 14.296 And since this is a

01:22 - 14.796 predisposition supervision

01:22 - 15.397 program, and these are the only

01:22 - 24.139 rules in the rules of procedure

01:22 - 24.739 It leads 1 to believe that that

01:22 - 25.307 is the section that they were

01:22 - 29.744 referencing.

01:22 - 32.013 But if it's not the case,

01:22 - 32.580 if instead the legislature had

01:22 - 38.353 in mind was that with holidays,

01:22 - 38.954 we'll create wholly unique rules

01:22 - 39.554 then then localities would need

01:22 - 44.059 to adopt local rules,

01:22 - 44.526 pursuant to the rules of

01:22 - 45.560 judicial administration,

01:22 - 49.230 which was not done here.

01:22 - 49.831 There was nothing ever published

01:22 - 50.432 in the Pennsylvania bullets and

01:22 - 50.966 the court can certainly take

01:22 - 54.369 judicial notice of that that

01:22 - 59.240 Really important that he's role

01:22 - 59.774 carefully as the roles were

01:22 - 00.308 carefully considered by this

01:23 - 05.413 part when they were adopted

01:23 - 08.383 because it can result in

01:23 - 08.817 something such as the

01:23 - 09.351 commonwealth page is arguing

01:23 - 20.295 that the higher import manual

01:23 - 20.862 restitution to the impulse Pre

01:23 - 21.429 sentencing the veterans court

01:23 - 21.997 manual doesn't say that at all

01:23 - 30.872 it's preferences recipes and as

01:23 - 32.073 which is not until with,

01:23 - 33.575 without having that

01:23 - 36.978 clearly specify.

01:23 - 37.579 Mr. vacate new restitution. Part

01:23 - 38.113 of the program. Mr. Medicaid

01:23 - 38.680 knew he was going to happen is

01:23 - 45.653 payment, but he didn't know he

01:23 - 48.223 Bias council has gone to you

01:23 - 48.823 just for the sake of helping me

01:23 - 55.897 understand.

01:23 - 59.634 Let's take the treatment cord

01:23 - 00.135 on, let's say that you're

01:24 - 03.805 climbing judge and the guilty.

01:24 - 04.406 Okay, just plain guilty because

01:24 - 04.906 he did plead guilty gear.

01:24 - 08.943 Correct?

01:24 - 09.444 Don't be sweet. Okay so so

01:24 - 09.944 what's in guilty? Plea is

01:24 - 10.545 entered the trial. Ford is in a

01:24 - 20.855 position where it is going to

01:24 - 21.222 If it gets done a

01:24 - 25.927 thing yes. Okay.

01:24 - 26.461 Why isn't that? What happens

01:24 - 27.028 here? I mean, you were talking

01:24 - 27.595 about this as though he, that

01:24 - 34.436 your client is not getting your

01:24 - 34.836 But he is, he's not

01:24 - 39.274 facing any prison.

01:24 - 39.808 I mean, and, you know, which

01:24 - 40.408 makes total sense in conjunction

01:24 - 46.047 with his voluntary guilty play.

01:24 - 49.484 His agreement to go into the

01:24 - 50.051 treatment program, and at the

01:24 - 50.652 end of the day he agreed to pay

01:24 - 58.993 restitution. So I'm not sold on

01:24 - 59.594 And so, if I look at this purely

01:24 - 00.195 in the context of an individual

01:25 - 00.795 who voluntarily plead guilty and

01:25 - 04.232 his later sentence.

01:25 - 07.702 And it's the trial court, not

01:25 - 08.303 the district attorney who is at

01:25 - 08.903 the end of the day, deciding the

01:25 - 18.213 terms of the restitution. It's

01:25 - 18.813 Short discussion of this issue,

01:25 - 19.314 she did in fact, take into

01:25 - 19.914 account the nature of declining.

01:25 - 26.821 That was an issue here. So.

01:25 - 27.355 I mean, I'm, I'm just having

01:25 - 31.459 I'm, I'm having a hard time.

01:25 - 31.993 On a accepting a proposition

01:25 - 32.460 that the di applies and

01:25 - 40.735 secondly, if it doesn't apply.

01:25 - 41.302 Isn't this? Precisely invoice

01:25 - 41.836 should have happened in this

01:25 - 45.273 case and 11 0 6.

01:25 - 45.807 For the restitution sentence

01:25 - 49.777 would have been on.

01:25 - 50.378 Impose so every participant in a

01:25 - 50.945 veteran port program prior to

01:25 - 56.818 Mr. okayed.

01:25 - 57.418 To participate and successfully

01:25 - 57.952 completed the program, have

01:25 - 58.486 their charges dismissed. Mr.

01:25 - 06.861 McCabe when entering that

01:26 - 07.428 Had that in his contemplation

01:26 - 14.702 when the entry program and so.

01:26 - 15.303 Yes, it is a voluntary, but you

01:26 - 15.870 also have to think about what

01:26 - 16.471 the participants were expecting

01:26 - 27.048 and what the outcome would be

01:26 - 30.652 Then the question of whether he

01:26 - 31.219 would be sentenced, and it was

01:26 - 31.753 his understanding that if he

01:26 - 42.197 definitely completed the, that

01:26 - 42.764 That, I mean, when he entered

01:26 - 43.364 this program, he understood that

01:26 - 43.932 there was the possibility that

01:26 - 51.739 even applying successful

01:26 - 52.207 Do what he agreed to do,

01:26 - 54.409 which is pay repetition.

01:26 - 58.446 I'm struggling with the

01:26 - 59.047 voluntary nature of it. I mean,

01:26 - 59.581 he didn't have to do this at

01:26 - 06.888 all. I mean, he could have been

01:27 - 07.455 Likely would have been prison

01:27 - 07.989 time involved and likely 11

01:27 - 11.259 restitution.

01:27 - 11.859 So,

01:27 - 12.594 I mean,

01:27 - 13.127 it appears to me,

01:27 - 13.394 and I don't,

01:27 - 16.564 I don't see anything this record

01:27 - 17.098 to suggest otherwise that he

01:27 - 17.699 benefit might've which from the

01:27 - 23.538 veterans treatment cts program,

01:27 - 24.072 in terms of helping him get

01:27 - 24.606 through a difficult time and

01:27 - 26.507 things of that nature.

01:27 - 28.676 So.

01:27 - 29.244 I'm just and the argument and

01:27 - 29.811 everyone else got it see, it's

01:27 - 37.619 individualized.

01:27 - 38.152 I don't know what the trial

01:27 - 38.720 court considered at the end of

01:27 - 39.220 the day when he or she was

01:27 - 50.031 deciding the ultimate

01:27 - 53.201 And throughout our commonwealth,

01:27 - 53.801 the counties that offer veterans

01:27 - 54.302 treatment, court programs,

01:27 - 03.978 routinely award order

01:28 - 07.415 But it's not part of it just.

01:28 - 12.353 But you just referenced

01:28 - 12.954 everybody else who went through

01:28 - 17.125 the program.

01:28 - 17.692 The 1st, day that you're aware

01:28 - 18.293 of those cases, and any of them

01:28 - 18.826 have restitution due at the

01:28 - 22.063 conclusion of the program.

01:28 - 26.267 Not that I'm aware of, and I

01:28 - 26.834 just wanted to say to jump the

01:28 - 27.402 point that if the commonwealth

01:28 - 36.244 would have used this discretion

01:28 - 39.580 Because we believe he needs

01:28 - 40.081 additional rehabilitation.

01:28 - 40.615 Because we believe he needs

01:28 - 46.120 additional work return, or for

01:28 - 49.290 But the admitted in this case

01:28 - 49.891 that the only reason that it did

01:28 - 50.391 not Norcross Mr. mccabe's

01:28 - 59.567 charges is because of his

01:29 - 03.137 But only references his failure

01:29 - 03.604 to pay restitution when

01:29 - 04.172 justifying percentage and does

01:29 - 17.418 not in any way, say that the

01:29 - 17.885 Miss uses discretion and

01:29 - 18.453 unconstitutional manner and I

01:29 - 19.020 think that is what needs to be

01:29 - 29.897 focused on not the fact that

01:29 - 30.365 Good. Now.

01:29 - 32.900 He went through this program and

01:29 - 33.401 I'm going to why not order

01:29 - 38.039 restitution.

01:29 - 38.573 It was ultimately the trial

01:29 - 39.140 Court's decision in this case.

01:29 - 40.408 Was it not.

01:29 - 44.812 It was, and the trial court

01:29 - 45.380 cannot discriminate against me

01:29 - 45.913 from a case based on poverty

01:29 - 55.156 anymore to the commonwealth can.

01:29 - 55.723 He did not have the ability to

01:29 - 56.324 pay his charges should have been

01:29 - 58.559 dismissed.

01:29 - 58.893 Thank you, we're

01:29 - 04.966 going to come off.

01:30 - 05.533 May I please the court Joseph

01:30 - 06.067 carnival assistant district

01:30 - 06.667 attorney for my downright county

01:30 - 10.605 on behalf of the common law.

01:30 - 10.872 Severe court

01:30 - 15.143 correctly concluded.

01:30 - 15.743 Veterans courts are not governed

01:30 - 16.210 by the rules of criminal

01:30 - 16.811 procedure are originated in the

01:30 - 21.649 seventies.

01:30 - 22.216 Decades earlier than the 1st,

01:30 - 22.817 veterans court, not just in the

01:30 - 25.920 commonwealth, but the nation.

01:30 - 26.454 Is a Pre trial diversionary

01:30 - 26.954 program, whereas veterans

01:30 - 32.026 courts.

01:30 - 32.527 In Montgomery County, and

01:30 - 33.094 several other jurisdictions or

01:30 - 33.694 diversity programs that require

01:30 - 37.331 a guilty plea upfront.

01:30 - 37.865 The legislature's previously

01:30 - 38.466 required county cords to create

01:30 - 42.870 programs.

01:30 - 43.438 And specifically use the term

01:30 - 46.607 accelerated rehabilitative.

01:30 - 47.108 Disposition in the statute

01:30 - 52.079 authorizing the creation.

01:30 - 52.613 Problem solving courts, the

01:30 - 53.181 legislature omitted that label

01:30 - 53.781 which shows that not all problem

01:30 - 00.221 solving courts R. R. D programs

01:31 - 03.224 Prescribe procedures without

01:31 - 03.791 stating that they govern other

01:31 - 04.358 diversion programs or problems

01:31 - 08.162 on the courts.

01:31 - 10.398 That's for events specifically

01:31 - 14.235 he played it guilty.

01:31 - 14.669 He agreed to pay risk

01:31 - 15.136 restitution and then you

01:31 - 19.407 completed the program.

01:31 - 20.007 And he received the probationary

01:31 - 20.508 sentence there were no due

01:31 - 21.042 process or equal protection

01:31 - 24.312 violations here.

01:31 - 24.679 Of course, because

01:31 - 28.483 the carnival spare.

01:31 - 28.950 I think you just put at

01:31 - 33.087 least to me a hard to.

01:31 - 33.454 But where you see

01:31 - 37.625 equity here, this.

01:31 - 38.125 Defend it went through a 2

01:31 - 43.264 year veterans court process.

01:31 - 43.798 She got nothing whatsoever a

01:31 - 44.398 benefit out of that unless it's

01:31 - 44.999 the esoteric benefit of being a

01:31 - 50.037 better citizen.

01:31 - 50.638 You admitted him you personally,

01:31 - 51.239 Montgomery County admitted into

01:31 - 58.346 the veteran's court.

01:31 - 58.846 Put us through 2 years of

01:31 - 59.380 supervision, and then at the

01:31 - 59.847 end, gave him a criminal

01:31 - 03.918 sentence that he'll move forward

01:32 - 09.257 Equipment in.

01:32 - 09.857 You know, to collect restitution

01:32 - 10.291 the meanwhile he's got

01:32 - 10.858 probation, he's got a criminal

01:32 - 13.160 conviction.

01:32 - 13.561 What what could the

01:32 - 16.964 veterans court do him?

01:32 - 17.532 This is the pragmatic mistake

01:32 - 18.099 that you should have never let

01:32 - 19.534 them in.

01:32 - 25.239 Know your honor, because the

01:32 - 25.806 common law at the guilty plea

01:32 - 26.340 hearing advised him that the

01:32 - 37.018 standard range of the guidelines

01:32 - 38.853 So the fact that he

01:32 - 39.353 received probation at all.

01:32 - 45.226 Is a benefit, moreover, is.

01:32 - 45.760 Participation in the program

01:32 - 46.360 also, you know, in his case, if

01:32 - 46.894 you look at the guilty play

01:32 - 55.269 transcript, it noted that he

01:32 - 56.938 Enrolling in the program,

01:32 - 00.041 provide him the incentive to

01:33 - 00.641 continue with that treatment and

01:33 - 01.208 the structure to complete the

01:33 - 04.545 therapy,

01:33 - 05.146 for example and that's 1 of the

01:33 - 05.746 things that's noted in much of a

01:33 - 06.347 secondary literature sided in a

01:33 - 14.021 common brief is a veteran exist

01:33 - 14.455 or even a.

01:33 - 17.558 R. D.

01:33 - 18.125 They don't necessarily provide

01:33 - 18.659 orders with what they need.

01:33 - 19.226 They're kind of I have to just

01:33 - 26.901 chime in here to disagree with

01:33 - 27.501 Esteem, colleague, justice there

01:33 - 28.069 set forth that there may be an

01:33 - 28.636 esoteric benefit but that that

01:33 - 41.649 may be it. I mean, we're talking

01:33 - 42.216 For a reason. It's a veterans

01:33 - 42.817 treatment court. They don't sign

01:33 - 43.384 up and get accepted and then a

01:33 - 56.097 year and a half or 2 years

01:33 - 56.697 We're going to say you completed

01:33 - 57.264 the program. That's not it at

01:33 - 57.865 all. They come into court every

01:33 - 06.907 week, or every 2 weeks they are

01:34 - 09.443 They have a myriad of benefits

01:34 - 10.044 that are provided to them to get

01:34 - 14.882 them back on.

01:34 - 17.952 The the road to life to a normal

01:34 - 18.486 life and back on the road to

01:34 - 19.053 good health good mental health

01:34 - 23.324 and.

01:34 - 26.427 Employment stability, so it

01:34 - 26.994 really is much more than just

01:34 - 27.561 saying, okay, I graduated from

01:34 - 31.499 veterans court.

01:34 - 35.002 They get a mentoring aspect that

01:34 - 35.469 no other specialty court

01:34 - 36.070 provides and it truly is a gift.

01:34 - 48.349 It's by grace that they get into

01:34 - 48.916 So, I'm not sure if Montgomery

01:34 - 49.417 County offers all of those

01:34 - 50.017 things I've talked about, but I

01:34 - 59.360 know it's 1 of our model

01:34 - 59.960 I have a question Rob, almost as

01:34 - 00.428 a follow up to answer my

01:35 - 01.028 question a minute. 1st, I didn't

01:35 - 09.070 know you had a question more

01:35 - 14.675 I'm sorry your honor your.

01:35 - 15.242 Montgomery County is 1 of our

01:35 - 15.810 model veterans court treatment

01:35 - 19.013 programs.

01:35 - 23.217 I understand that it does have.

01:35 - 23.751 Many of the components I've

01:35 - 27.688 described, if not all.

01:35 - 28.289 Yes, your honor and the veterans

01:35 - 28.856 court manual actually outlines

01:35 - 29.290 the procedure here and

01:35 - 38.566 dependents attorney the top

01:35 - 42.136 So there is a consideration on a

01:35 - 42.570 case basis of what is

01:35 - 43.037 specifically ailing this

01:35 - 47.007 particular dependant and how

01:35 - 50.044 So the whole point of the

01:35 - 50.644 program is to identify what's at

01:35 - 51.245 the root, the criminal conduct,

01:35 - 54.949 an issue and tree now or

01:35 - 57.118 And then at sensing, that's

01:35 - 01.422 all taking into account.

01:36 - 01.989 Thank you so, if I may follow

01:36 - 02.590 up, I'm somewhat concerned with

01:36 - 03.057 regard to the procedural

01:36 - 09.363 framework established by

01:36 - 13.033 For example, the establishment

01:36 - 13.501 clause, 42 parties, 916

01:36 - 14.101 specifically indicates that it's

01:36 - 24.345 for the treatment. They are

01:36 - 29.350 Yet, what you currently have in

01:36 - 29.884 play is not a treatment Corp

01:36 - 30.484 program. You have the facade of

01:36 - 37.858 a problem solving court.

01:36 - 38.392 For a different adjudication

01:36 - 43.764 of a criminal conviction.

01:36 - 44.331 Once you require the defendant

01:36 - 44.865 to enter the built, it is no

01:36 - 45.366 longer a diversion. Every

01:36 - 52.006 program per se.

01:36 - 52.473 Because it's no longer a

01:36 - 52.940 treatment program. It's

01:36 - 58.112 introduction.

01:36 - 58.479 Into the criminal

01:36 - 02.349 justice system, so.

01:37 - 02.850 Council has indicated why

01:37 - 07.621 should chapter 3 not apply.

01:37 - 08.122 When you your, your, your

01:37 - 13.260 office itself circumvented.

01:37 - 13.794 The framework of the problem

01:37 - 14.395 solving treatment court and made

01:37 - 14.929 it a clear entry of a guilty

01:37 - 19.767 pleasure.

01:37 - 22.703 Well, your honor firstly.

01:37 - 27.041 Several veterans court programs

01:37 - 27.541 across the nation, require

01:37 - 28.042 guilty please upfront with

01:37 - 35.149 deferred sentencing and the

01:37 - 38.485 So this being a veterans court,

01:37 - 38.986 having the required fields

01:37 - 39.587 equipment is not uncommon by any

01:37 - 48.729 means and nowhere in the

01:37 - 52.299 Like, there's nothing

01:37 - 52.867 prohibiting that basically and

01:37 - 53.434 if you look at the R D rules,

01:37 - 00.274 those are completely distinct.

01:38 - 00.875 A Pre trial diversity program is

01:38 - 01.442 not the same as a diversionary

01:38 - 06.213 program specifically.

01:38 - 06.814 So the position is that you can

01:38 - 07.348 have these Pre trial or Pre

01:38 - 07.915 indictment diversion programs,

01:38 - 18.525 such as a R. D. but that's not

01:38 - 19.960 There's nothing

01:38 - 20.961 prohibiting this from.

01:38 - 24.131 Occurring this way, and in fact,

01:38 - 24.632 at this point, it's up to

01:38 - 25.099 there's several counties

01:38 - 30.170 discretion to decide how.

01:38 - 30.738 They best administered program

01:38 - 31.305 and what they find to be most

01:38 - 35.643 effective. So may I.

01:38 - 36.243 Just request this manual, which

01:38 - 36.777 is the only guidance should

01:38 - 37.378 define it gets her in Montgomery

01:38 - 43.684 County. I guess.

01:38 - 44.285 Has a sense upon completing the

01:38 - 44.752 program and this is the

01:38 - 45.286 expectation participants may

01:38 - 55.362 have the court consider

01:38 - 55.796 Yes wrong. So you have

01:38 - 59.800 some expectancy that.

01:38 - 00.367 If you do everything they ask

01:39 - 00.968 you to do, having been accepted

01:39 - 01.568 in the program at the end of the

01:39 - 05.039 program.

01:39 - 05.506 The court might consider

01:39 - 06.040 dismissing or reducing your

01:39 - 10.377 charge, right?

01:39 - 10.911 Yes, your honor was consider

01:39 - 14.915 what was Mr uh, charged with.

01:39 - 15.482 He was originally charged with

01:39 - 16.050 receiving stolen property by a

01:39 - 18.786 local.

01:39 - 19.219 And what did he at the

01:39 - 24.825 end? So what what would.

01:39 - 25.426 If you'd have been able to pray

01:39 - 26.026 restitution, you couldn't reduce

01:39 - 26.627 the charges could you? You could

01:39 - 31.332 dismiss them is that.

01:39 - 31.932 In other words, you can re, you

01:39 - 32.499 can reduce aggravated assault,

01:39 - 33.033 the simpler salt, but step 2

01:39 - 38.706 step 2 step.

01:39 - 39.239 So, it looks to me, like, he

01:39 - 39.673 figure, you know, I do

01:39 - 44.645 everything.

01:39 - 45.212 They taught me to do I have a

01:39 - 45.713 chance that I'll get these

01:39 - 46.280 charges to dismissed and won't

01:39 - 50.117 have a record is that correct?

01:39 - 50.684 What your honor is subjective

01:39 - 51.251 expectations about the program

01:39 - 51.819 are respectfully and material,

01:39 - 01.528 because the program specifically

01:40 - 02.062 If somebody goes into this,

01:40 - 02.663 they're saying, look, I've got a

01:40 - 03.197 shot at getting the charges

01:40 - 05.866 dismissed. If I.

01:40 - 06.367 Complete oh, good. And you

01:40 - 08.635 didn't have a shot your honor.

01:40 - 12.706 Well, let's just follow the.

01:40 - 13.173 The part of the thing is

01:40 - 16.510 going into this thing.

01:40 - 17.044 You still have 35,000, so he

01:40 - 17.644 says you got to pay restitution,

01:40 - 21.215 right?

01:40 - 21.782 Well, there's no way this may

01:40 - 22.383 have to pay 69,000. so he knows

01:40 - 22.950 that, you know, that he's back

01:40 - 29.723 for 11 on 700 dollars a month.

01:40 - 30.190 So, it seems to me that

01:40 - 34.795 it's almost looser it.

01:40 - 35.362 To accept him into the program

01:40 - 35.963 and then say, you can't get the

01:40 - 40.801 charges dismissed.

01:40 - 41.402 As you didn't pay something, you

01:40 - 42.002 never could your honor. I think

01:40 - 42.536 that we need to look to the

01:40 - 47.808 trial court stated rationale for

01:40 - 48.275 The 3 year, probationary

01:40 - 48.742 sentence and refusing to

01:40 - 49.276 business the charges. If you

01:40 - 55.649 look at the transcript of the

01:40 - 56.216 You were a model participating

01:40 - 56.784 the program you did everything

01:40 - 57.384 we asked you. This is a serious

01:40 - 02.322 crime.

01:41 - 02.923 And I find that you need 2 years

01:41 - 03.524 of probation, so, while you have

01:41 - 03.991 some discussion from the

01:41 - 17.471 commonwealth about the severity

01:41 - 18.038 That's just not what the child

01:41 - 18.605 courts gave as an explanation

01:41 - 19.106 for the sentence, or it's

01:41 - 28.515 refusal to dismiss it to you. In

01:41 - 29.049 Start with that, I got that

01:41 - 29.650 part, but I'm just trying to get

01:41 - 34.421 the concept of this program.

01:41 - 34.988 And the expectancy is somebody

01:41 - 35.556 that goes in and a couple that

01:41 - 36.156 with the fact, you know, at the

01:41 - 41.295 beginning.

01:41 - 41.862 It yesterday to 2 years, it's

01:41 - 42.362 not gonna get the charges

01:41 - 42.963 dismissed because he could never

01:41 - 47.267 pay 30.

01:41 - 47.868 Or your honor, or that he knows

01:41 - 48.368 that anybody who takes the

01:41 - 52.873 program those.

01:41 - 53.407 So, what are his shots? You

01:41 - 53.974 can't get the charges this Mr.

01:41 - 57.845 reduced under your theory.

01:41 - 58.412 Well, I think that would be a

01:41 - 58.979 case by case basis. Some take

01:41 - 04.451 that, but this says.

01:42 - 05.052 They may consider dismissing or

01:42 - 05.652 reducing their charges, but that

01:42 - 06.220 could never happen under your

01:42 - 10.057 theory.

01:42 - 10.657 I do think that the trial court

01:42 - 11.258 had a discretion here to say you

01:42 - 11.725 completed the program. I

01:42 - 18.065 understand that you were hard

01:42 - 18.599 And it's some kind of other

01:42 - 19.133 explanation and said charges

01:42 - 19.666 dismissed. I think there's a

01:42 - 25.038 chalkboard had that discretion.

01:42 - 25.506 Even notwithstanding the

01:42 - 26.039 restitution, Todd, they said

01:42 - 26.540 we're going to dismiss the

01:42 - 33.147 charging. You've been a model

01:42 - 33.680 Okay, but you got to sign an

01:42 - 34.248 agreement, you got to continue

01:42 - 34.848 paying this recipe to and that's

01:42 - 39.987 what we're going to leave you

01:42 - 40.554 You have a binding obligation

01:42 - 44.658 for whatever it's not worth.

01:42 - 45.192 To keep paying 100 dollars a

01:42 - 45.759 month, and I get the point of

01:42 - 50.631 counsel.

01:42 - 51.198 Well, you're honored that very

01:42 - 51.798 hypothetical shows that the top

01:42 - 52.399 court sentence was not about the

01:42 - 02.142 restitution if it could have you

01:43 - 05.779 Then we would know that there

01:43 - 06.380 was a link to the 2 years based

01:43 - 06.947 on the restitution, but that's

01:43 - 13.220 just not present here. Mr.

01:43 - 16.456 The trial court record that

01:43 - 16.924 would indicate to us the

01:43 - 17.424 disposition of the 35,000

01:43 - 23.630 dollars, the gold coins valued

01:43 - 28.802 As far, as far as where they

01:43 - 29.369 happens, what happened to the

01:43 - 29.903 clients or the money or your

01:43 - 39.213 honor I actually do not know.

01:43 - 39.780 And the victim never saw them

01:43 - 40.380 again and we have no idea where

01:43 - 40.948 there there's no telling where

01:43 - 49.389 the money went. Let me ask you

01:43 - 49.990 There's that pesky 11 06 and you

01:43 - 50.557 were kind enough to send in a

01:43 - 57.464 post submission communication.

01:43 - 57.965 With discourse, cocker in

01:43 - 58.532 decision, although by the way

01:43 - 59.032 you omitted to send in my

01:43 - 03.203 dissent there.

01:44 - 03.670 So, even under this, the

01:44 - 04.071 majority's creative

01:44 - 08.842 interpretation of 11, 6, there.

01:44 - 09.276 The court elasticized

01:44 - 13.981 the statute.

01:44 - 14.581 To allow 2 months hiatus, like a

01:44 - 15.182 summer break for the York county

01:44 - 18.952 office.

01:44 - 22.956 But there was just 2 months and.

01:44 - 23.523 The defendant as the majority

01:44 - 24.024 pointed out, requested the

01:44 - 27.261 delay.

01:44 - 27.861 Um, here we have 8 or 9 months,

01:44 - 32.966 right? And 8 or 9 months.

01:44 - 33.267 And there's no

01:44 - 37.404 circumstance involving.

01:44 - 37.804 The defendant asking

01:44 - 40.607 for that, uh.

01:44 - 44.845 So, I'm.

01:44 - 45.445 If, um, if Cochrane elasticized,

01:44 - 48.615 11, 06 would this case.

01:44 - 52.552 Break the rubber band, you know,

01:44 - 53.120 your honor and the reason for

01:44 - 53.587 that is in Cochrane, the

01:44 - 03.297 restitution order came after the

01:45 - 05.465 So that's an interesting point

01:45 - 07.401 of distinction. There is a.

01:45 - 10.504 Even under the superior course

01:45 - 11.071 precedent for why we want the

01:45 - 11.538 restitution to happen at

01:45 - 16.109 sentencing in this case.

01:45 - 16.610 We satisfied those policy

01:45 - 17.210 preferences certainty as far as

01:45 - 17.778 what the amount of restitution

01:45 - 23.317 was going to be a good contest

01:45 - 27.054 So, firstly, I mean, it

01:45 - 27.654 actually, arguably benefited him

01:45 - 28.255 that the restitution order came

01:45 - 37.097 earlier. It was the 1st, part of

01:45 - 40.467 The dependent consent to it. I

01:45 - 41.068 mean, and she signed a paperwork

01:45 - 41.601 there was a guilty pleasure

01:45 - 49.409 hearing. He knew there was going

01:45 - 49.876 The sentencing for this

01:45 - 50.410 opportunity to complete the

01:45 - 51.011 entire program. So it's not just

01:45 - 01.688 about the restitution order

01:46 - 02.289 Complete the requirements of the

01:46 - 02.889 program and get a super console

01:46 - 03.490 just to spare again and probably

01:46 - 07.794 beating this to death. But

01:46 - 08.228 That's this way, just

01:46 - 12.299 this time, et cetera.

01:46 - 12.833 A plea bargain is a contract

01:46 - 13.400 between the defendants and the

01:46 - 17.604 state.

01:46 - 18.205 Both obligated to fulfill their

01:46 - 18.805 obligation. They're under. We've

01:46 - 22.809 held that to prior cases.

01:46 - 27.147 So you tell me what did you get.

01:46 - 32.486 The guilty play.

01:46 - 32.986 In real terms, when in the

01:46 - 38.024 end he gets a sentence.

01:46 - 38.358 Yes, restitution

01:46 - 43.063 anyways this 2 years.

01:46 - 43.530 I understand that he got

01:46 - 44.064 remedial benefits of it, but

01:46 - 47.868 from his pragmatic viewpoint.

01:46 - 48.468 Or a typical criminal defendant

01:46 - 49.069 pragmatic viewpoint. Did you get

01:46 - 49.669 anything out of veterans quarter

01:46 - 54.541 at all?

01:46 - 55.075 So That'll be in addition to

01:46 - 55.609 ensuring if completion about

01:46 - 56.109 therapy for PTSD and other

01:46 - 06.787 mental health, he kind of gone

01:47 - 07.354 I'm not sure parents pay 3. I

01:47 - 07.921 said that isn't a good Adam on

01:47 - 08.488 the head. We took all of this

01:47 - 14.094 for.

01:47 - 14.694 It seems to me, if I'm advising

01:47 - 15.228 a client and we're going to

01:47 - 18.398 veterans support.

01:47 - 18.965 We don't know, maybe maybe, I

01:47 - 22.803 don't know, criminal law, but.

01:47 - 23.403 But I don't expect at the end of

01:47 - 23.937 it that it's it's just that

01:47 - 26.973 never existed.

01:47 - 27.541 I got a sentencing hearing, I

01:47 - 28.108 got a sentence. What did I get

01:47 - 32.846 out of veterans courts?

01:47 - 33.447 Well, you're on your appointing

01:47 - 33.914 until the guidelines we

01:47 - 34.481 submitted to the court, he was

01:47 - 37.317 facing a state sentence.

01:47 - 37.818 So, under the kick off the

01:47 - 38.251 standard range of the

01:47 - 38.852 guidelines, presumptively where

01:47 - 43.557 independence should be.

01:47 - 44.157 So, I have no reason to believe

01:47 - 44.658 that apps and some kind of

01:47 - 45.258 mitigation, like, completion of

01:47 - 54.801 the veterans quote program. For

01:47 - 55.402 So, I don't mean to be impatient

01:47 - 56.236 at all, but we're almost.

01:47 - 58.538 I'm just curious is this

01:47 - 02.809 a regular occurrence?

01:48 - 03.410 Work veterans want to enter the

01:48 - 03.910 Montgomery County veterans

01:48 - 08.815 treatment court.

01:48 - 09.382 The DA, lets them in, they go

01:48 - 09.983 through it and then they end up

01:48 - 10.584 with a state sentence. They end

01:48 - 15.956 up with a sentence at the end of

01:48 - 16.556 Your honor I can't actually give

01:48 - 19.893 you an answer that question.

01:48 - 20.393 All I can tell you is how

01:48 - 24.464 we do it by the book.

01:48 - 25.065 Which is that ultimately it's up

01:48 - 25.665 to the judge so these cases the

01:48 - 26.233 case by case basis and if you

01:48 - 30.704 look at the manual.

01:48 - 31.238 The commonwealth cannot just

01:48 - 31.805 keep somebody out of veterans

01:48 - 32.305 court, you know, there's a

01:48 - 42.182 conflict about whether someone

01:48 - 42.716 So, ultimately, that's what

01:48 - 43.316 makes the decision. So, it's not

01:48 - 43.850 like the cardinals have some

01:48 - 51.925 kind of unfettered discretion to

01:48 - 55.128 I mean, by the book, it's the

01:48 - 55.595 judgment to the decision

01:48 - 56.129 whenever there's a conflict

01:48 - 58.532 Thank you. Thank you.

01:49 - 01.201 Thanks to both castle, we're

01:49 - 01.801 going to take a 45 minute recess

01:49 - 06.039 and then we'll.

01:49 - 38.138 The next argument is come up the

01:49 - 38.705 Pennsylvania versus Jordan and

01:49 - 39.272 Donna raul's representing Mr.

01:49 - 49.316 Ross is Mr. Edward J room's

01:49 - 49.916 Good afternoon an armed robbery

01:49 - 50.517 lead to the depths 2 individuals

01:49 - 50.984 inside their waivers for

01:49 - 57.190 Pennsylvania home.

01:49 - 57.591 Afternoon an initial

01:49 - 58.058 investigation implicated

01:49 - 01.828 petitioner.

01:50 - 02.395 The support police charged him

01:50 - 02.896 with to count the criminal

01:50 - 06.666 homicide.

01:50 - 07.233 Related offenses after seeing

01:50 - 07.701 his name and photographs

01:50 - 13.540 circulated in the news.

01:50 - 14.140 Petition presented himself at a

01:50 - 14.674 police station where he was

01:50 - 15.275 placed under arresting question

01:50 - 19.813 by the police.

01:50 - 20.413 He waves is Miranda rights, and

01:50 - 21.014 then confessed participating in

01:50 - 25.118 the robbery.

01:50 - 25.719 However, the police did not tell

01:50 - 26.252 him the criminal charges had

01:50 - 30.023 already been filed against him.

01:50 - 30.557 The issue is whether before

01:50 - 31.124 asking him to wave his Miranda

01:50 - 36.830 rights.

01:50 - 37.430 The 6th amendment to the United

01:50 - 37.964 States Constitution required

01:50 - 38.565 police to the criminal charges,

01:50 - 42.435 had been filed against.

01:50 - 49.009 Uh, we hear from Mr.

01:50 - 49.509 Good afternoon. Mr. chief

01:50 - 50.076 justice. And may it please the

01:50 - 55.148 court.

01:50 - 55.615 35 years ago, this court

01:50 - 56.149 recognized in a case called

01:50 - 00.720 commonwealth versus parish.

01:51 - 01.254 That a valid Miranda waiver

01:51 - 05.959 will not necessarily.

01:51 - 06.493 Waived the right to counsel

01:51 - 07.093 under the 6th amendment. Uh, the

01:51 - 07.661 case against Jordan rolls is 1

01:51 - 16.136 of those rare cases where that

01:51 - 16.703 Because in this case, Mr rolls

01:51 - 17.270 was interrogated by the police

01:51 - 17.837 for approximately 5 and a half

01:51 - 21.141 hours.

01:51 - 21.641 After he had already been

01:51 - 25.545 formally charged the day before.

01:51 - 26.112 With 2 open counts of criminal

01:51 - 26.680 homicide police in this case,

01:51 - 27.280 not only deliberately failed to

01:51 - 32.652 tell Mr.

01:51 - 33.219 Raul that he had already been

01:51 - 33.753 formally charged by way of a

01:51 - 34.287 criminal complaint, but they

01:51 - 43.630 actively intentionally misled

01:51 - 44.130 Well, that nothing that's

01:51 - 44.698 nothing he said at that moment

01:51 - 47.267 was going to undo.

01:51 - 50.570 Uh, the criminal charges that

01:51 - 51.171 have already been filed against

01:51 - 51.771 them as a result under the facts

01:51 - 58.745 of this case, when the 6th

01:51 - 59.345 Something more than just Miranda

01:51 - 59.913 warnings are required when the

01:51 - 03.917 police.

01:52 - 04.517 Intentionally failed to disclose

01:52 - 05.018 that criminal charges have

01:52 - 09.089 already been filed.

01:52 - 09.689 And I want to be very clear what

01:52 - 10.256 what we're asking for, in this

01:52 - 14.594 case is really nothing novel.

01:52 - 15.195 The parish court recognize that

01:52 - 15.762 Miranda waivers will always be

01:52 - 20.667 enough.

01:52 - 21.167 2 years later in 1988, the

01:52 - 21.768 United States Supreme Court, in

01:52 - 22.368 a footnote address this issue in

01:52 - 28.475 Paterson versus Illinois.

01:52 - 28.875 That recognize that

01:52 - 32.846 there will be cases.

01:52 - 33.379 Where a waiver under Miranda

01:52 - 33.980 will not suffice for 6 amendment

01:52 - 37.650 purposes.

01:52 - 38.251 And certainly other courts, uh,

01:52 - 38.852 we cited in our, in our opening

01:52 - 43.323 brief.

01:52 - 43.857 Uh, other courts decided and

01:52 - 44.257 relied on their own

01:52 - 44.858 constitutions, their state court

01:52 - 51.865 constitutions to determine that

01:52 - 52.265 For post indictment

01:52 - 55.802 interrogations.

01:52 - 56.402 Also in the past, this court has

01:52 - 56.970 taken similar steps when court

01:52 - 03.443 felt there was a need.

01:53 - 03.910 For clarity in obtaining

01:53 - 09.315 a valid Miranda waiver.

01:53 - 09.816 There were 2 cases in the

01:53 - 10.383 seventies, commonwealth versus

01:53 - 10.984 Richmond and Commonwealth versus

01:53 - 17.690 Dixon where, uh, the court at

01:53 - 18.258 Valid Miranda writes a waiver,

01:53 - 18.825 whether there could be a valid

01:53 - 22.829 waiver.

01:53 - 23.396 If the suspect didn't know the

01:53 - 23.963 nature of the charges against

01:53 - 26.032 him or her.

01:53 - 29.102 And certainly nowhere in

01:53 - 29.669 Miranda, does it say that the

01:53 - 30.270 police have to advise a suspect

01:53 - 41.147 of the nature of the

01:53 - 47.320 So, again we're talking.

01:53 - 47.787 Uh, just to spare at the

01:53 - 48.388 beginning of your presentation,

01:53 - 48.955 and I didn't want to interrupt

01:53 - 56.696 you, because we try to allow you

01:53 - 57.297 You said that the police and I'm

01:53 - 57.831 paraphrasing you because my

01:53 - 02.602 memory's not what it once was.

01:54 - 03.203 But the police, we're not candid

01:54 - 03.770 or engaged in some trickery in

01:54 - 11.077 terms of their candidness.

01:54 - 11.611 To the to the defendant, and

01:54 - 12.145 when I read the facts, and I

01:54 - 17.283 appreciate.

01:54 - 17.784 That there's no right line

01:54 - 18.251 between the 5th and 6th

01:54 - 18.852 amendment and sometimes the 5th

01:54 - 23.923 amendment will suffice.

01:54 - 24.490 Miranda, and sometimes it will

01:54 - 24.991 not when you go out to the

01:54 - 28.294 police station.

01:54 - 28.795 He was interested, he was

01:54 - 29.395 putting both handcuffs and foot

01:54 - 33.700 costs.

01:54 - 34.267 And put into it interrogation

01:54 - 34.801 room so that would convey it

01:54 - 41.074 seems to me the most.

01:54 - 41.641 Actors that you're in a lot of

01:54 - 42.242 trouble that the police scrutiny

01:54 - 47.847 is focused on, you.

01:54 - 48.381 And therefore, although they

01:54 - 48.915 didn't inform him a criminal

01:54 - 49.415 proceeding that he knew it

01:54 - 54.888 should have known that there

01:54 - 55.455 Criminal proceedings on their

01:54 - 56.022 way. So what did the police do

01:54 - 01.661 in your estimation?

01:55 - 02.262 To trick him in the waving under

01:55 - 02.795 the 5th amendment, which he

01:55 - 03.363 could not have done on the 6th

01:55 - 06.766 amendment.

01:55 - 07.300 So, your honor, the, the, I

01:55 - 07.834 don't think without without

01:55 - 14.874 telling Mr rolls.

01:55 - 15.341 That he had already been

01:55 - 15.909 criminally charged by way of a

01:55 - 19.746 complaint.

01:55 - 20.280 And the process was going to

01:55 - 20.847 continue, and the charges were

01:55 - 21.347 going to continue with or

01:55 - 33.927 without his cooperation is, is

01:55 - 34.494 That the police intentionally

01:55 - 35.094 left out, simply just because he

01:55 - 41.534 was a under arrest.

01:55 - 42.068 By itself and rest Warren is

01:55 - 42.669 certainly different from from a

01:55 - 43.269 actual criminal complaint where

01:55 - 48.875 adversary proceedings have

01:55 - 49.442 But, certainly people can get

01:55 - 49.909 arrested and then later

01:55 - 53.046 released.

01:55 - 53.579 Or or charges never actually

01:55 - 54.147 even come as a result of that

01:55 - 00.219 rest.

01:56 - 00.820 And I think in terms of how they

01:56 - 01.321 misled them, they told him

01:56 - 01.921 things they, once they read and

01:56 - 09.062 Miranda warning, I think they,

01:56 - 09.529 Things like, we're only

01:56 - 10.063 investigating this case that

01:56 - 14.901 there may be some middle ground.

01:56 - 15.501 They wanted to hear his side of

01:56 - 16.102 the story and, and my particular

01:56 - 16.636 favorite, when they said, we

01:56 - 24.711 don't think you'd come bouncing

01:56 - 25.278 I mean, those were things that

01:56 - 25.845 they falsely suggested that if

01:56 - 32.285 he talks.

01:56 - 32.785 That that it would somehow

01:56 - 33.353 improve his situation. And in

01:56 - 33.953 fact, I think what they said was

01:56 - 43.162 was absolutely incompatible with

01:56 - 43.730 Incompatible with anything you

01:56 - 44.297 say, will be used against you

01:56 - 44.864 and that you have the right to

01:56 - 49.268 remain silent.

01:56 - 49.702 So, you're not arguing

01:56 - 55.675 for a bright line rule.

01:56 - 56.175 In Pennsylvania that once

01:56 - 56.776 criminal proceedings have begun

01:56 - 57.310 to use to fix the amount of

01:56 - 02.148 language.

01:57 - 02.515 Police must always

01:57 - 07.520 provide counsel.

01:57 - 08.121 Regardless of 5th amendment, et

01:57 - 08.721 cetera, you're arguing for these

01:57 - 13.626 facts and circumstances.

01:57 - 14.193 This can fall under Patterson

01:57 - 14.660 and the other cases you

01:57 - 15.795 mentioned.

01:57 - 19.732 Well, yes, but again, in

01:57 - 20.299 Patterson footnote, 9, it, it

01:57 - 20.900 talks about that. Miranda waiver

01:57 - 31.677 won't always be enough. I think,

01:57 - 32.011 rolls.

01:57 - 34.647 However, they did, it were, were

01:57 - 35.248 really 2 at 2 additional points.

01:57 - 40.486 1 was that charges.

01:57 - 41.020 Mr. rolls have already been

01:57 - 41.621 filed and initiated against you

01:57 - 42.221 and no matter what you say here

01:57 - 47.160 today the case is going to

01:57 - 47.760 Your 2nd part, but why wouldn't

01:57 - 52.331 you want a bright line rule?

01:57 - 52.932 To make the waiver in form, say,

01:57 - 56.069 look charges have already been.

01:57 - 00.640 I don't know what else to say.

01:58 - 01.240 You know, the rest of the stuff,

01:58 - 01.841 but don't you want a bright line

01:58 - 05.011 rule?

01:58 - 05.545 Well, Mr chief justice, I of

01:58 - 06.145 course, it's always a little bit

01:58 - 06.712 dangerous asking for that for

01:58 - 13.820 that bright line rule. But I,

01:58 - 14.387 That under the facts presented

01:58 - 14.954 in this case that once the 6th

01:58 - 19.092 amendment had attached.

01:58 - 19.692 That they were obligated to let

01:58 - 20.293 Mr Rawls know the situation. So

01:58 - 20.893 him to be able to appreciate the

01:58 - 26.499 magnitude.

01:58 - 28.868 Of of of the of the situation.

01:58 - 38.678 Any other questions, or any

01:58 - 39.212 other argument it's a pretty

01:58 - 43.282 straight forward argument.

01:58 - 43.783 I guess it's done here, I

01:58 - 48.654 guess 1 question, you're on.

01:58 - 49.255 Position rest on the proposition

01:58 - 49.856 that the 6th Amendment right to

01:58 - 56.129 council attaches.

01:58 - 56.496 Once the criminal

01:58 - 59.132 complaint is filed.

01:58 - 03.469 Yes, and I think the case.

01:59 - 03.936 Address that I know the

01:59 - 04.537 commonwealth took some exception

01:59 - 08.508 to that.

01:59 - 09.075 But, but certainly under even

01:59 - 09.575 under, um, United States,

01:59 - 10.143 Supreme Court precedent, Kirby

01:59 - 15.615 versus Illinois.

01:59 - 16.215 Indicates that the initiation of

01:59 - 16.782 the adversary proceedings, by

01:59 - 17.383 way of a formal charge triggers

01:59 - 22.855 the 6 Amendment rights to

01:59 - 23.222 Which can be wave,

01:59 - 26.325 which can be wave.

01:59 - 26.792 Which, which, which can

01:59 - 31.764 be, which can be ways.

01:59 - 32.365 Uh, to justice, but but again, I

01:59 - 32.965 think that there is a, there is

01:59 - 33.566 a clear distinction between the

01:59 - 40.306 5th and the 6 amendment. We.

01:59 - 40.873 Outline that in our brief that

01:59 - 41.474 they serve completely different

01:59 - 42.074 purposes, particularly when the

01:59 - 48.347 6th amendment, the 6th amendment

01:59 - 48.948 And it and it and it's designed

01:59 - 49.482 to cast a a broad net. We're

01:59 - 50.082 certainly not suggesting that it

01:59 - 54.987 deserves.

01:59 - 55.354 For reference then

01:59 - 58.758 the 5th amendment.

01:59 - 59.358 But it does attach automatically

01:59 - 59.859 and in essence, gives the

01:59 - 04.463 accused a shield.

02:00 - 04.997 Um, when they deal with with

02:00 - 09.702 post indictment adversaries.

02:00 - 10.269 Through counsel, and certainly

02:00 - 10.836 Miranda is is in my view is is

02:00 - 11.304 inadequate. It was never

02:00 - 20.846 designed to to be a substitute

02:00 - 21.380 It only applies to custodial

02:00 - 21.981 interrogations. In fact, the 5th

02:00 - 22.582 amendment doesn't even reference

02:00 - 26.786 a right to council.

02:00 - 27.320 Counsel your position, your

02:00 - 27.887 position would then be that he

02:00 - 28.487 could not possibly have wasted 6

02:00 - 33.259 amendment, right? Because he

02:00 - 38.331 Right. Okay.

02:00 - 38.831 Council I have 1 question

02:00 - 39.365 considering this is a waiver

02:00 - 39.765 issue. What level of

02:00 - 47.740 deliberation or consideration

02:00 - 52.411 I, I think your honor that, that

02:00 - 57.250 it really does the fact that.

02:00 - 57.683 The fact that Mr Raul

02:00 - 01.721 fire criminal history.

02:01 - 06.559 Made relevant, but again.

02:01 - 07.159 When when he was maybe relevant

02:01 - 12.965 to a certain grade, but but.

02:01 - 13.532 He didn't know at that point,

02:01 - 14.133 that charges were definitely, I

02:01 - 14.734 don't know the circumstances of

02:01 - 20.539 his priorities if he was well

02:01 - 21.007 Adversary process codes

02:01 - 24.343 whether or not he was.

02:01 - 24.944 Whether their statements made in

02:01 - 25.478 that case, whether there was

02:01 - 30.049 custodial interrogations.

02:01 - 30.616 So, I think the facts may be a

02:01 - 31.150 bit different. He certainly

02:01 - 31.617 wasn't a novice. I'm not

02:01 - 35.388 suggesting he was.

02:01 - 35.821 I think his only prior

02:01 - 38.991 contact at the time was a.

02:01 - 39.558 Uh, a prior robbery conviction

02:01 - 44.897 when he was around, um.

02:01 - 45.498 18 or so, um, so so again, I, I

02:01 - 45.965 don't think also you can

02:01 - 46.532 attribute the fact that he was

02:01 - 56.075 arrested in this case, people

02:01 - 56.676 Another thing that I think is is

02:01 - 57.243 a little bit distinguishing in

02:01 - 59.945 this case that can't be.

02:01 - 00.313 Over last what the

02:02 - 04.016 post told him.

02:02 - 04.517 Even though they gave them

02:02 - 06.886 these Miranda rights.

02:02 - 07.353 They then undermind them

02:02 - 10.523 by the things they said.

02:02 - 11.123 And I think that's that's very,

02:02 - 13.826 very critical. In this case.

02:02 - 14.260 And I think it's just

02:02 - 16.128 positive. Thank you.

02:02 - 20.700 Thank you. Mr. chief justice and

02:02 - 21.300 may it please the court I'll be

02:02 - 21.901 relatively brief. I just wanted

02:02 - 30.242 to start out.

02:02 - 30.843 With a hypothetical if Mr rolls

02:02 - 31.410 was arrested a block away from

02:02 - 31.977 the crime scene minutes after

02:02 - 39.819 the shooting with the 9

02:02 - 40.353 The victim's balling in his

02:02 - 40.920 pocket and the victims blow it

02:02 - 44.056 on his hands.

02:02 - 44.590 He naturally would have been

02:02 - 45.157 handcuffed arrested, taken to

02:02 - 48.461 the police station.

02:02 - 49.061 Had he been read the exact same

02:02 - 49.628 warnings in this case word for

02:02 - 50.096 word with the exact same

02:02 - 53.065 procedure?

02:02 - 53.566 And confess, we certainly

02:02 - 57.837 wouldn't be here today.

02:02 - 58.371 Even if a fellow officer was

02:02 - 58.871 just next door in the next

02:02 - 02.208 interrogation room, typing up.

02:03 - 02.742 His charges as he confessed,

02:03 - 07.046 and the warnings are.

02:03 - 07.580 That were read to Mr. walls,

02:03 - 08.013 articulate the severe

02:03 - 12.918 consequences of speaking.

02:03 - 13.419 Without counsel with equal

02:03 - 13.953 force, regardless of whether

02:03 - 14.553 they're administered Pre or post

02:03 - 18.491 indictment.

02:03 - 19.024 Accuse in both situations is

02:03 - 22.862 advised that if he speaks.

02:03 - 23.462 The end result will be the same

02:03 - 23.929 resulting in a stronger

02:03 - 28.434 prosecution.

02:03 - 28.934 A greater likelihood of a

02:03 - 29.535 conviction. Let me interrupt you

02:03 - 30.136 their account. So we sort of put

02:03 - 34.807 the money in the hat by

02:03 - 35.207 That the, you know,

02:03 - 39.278 that, that sort of.

02:03 - 39.779 Big waving right when they

02:03 - 40.346 waving red flag, there is not

02:03 - 40.946 relevant to the defendant or the

02:03 - 45.217 defendant.

02:03 - 45.785 Doesn't need to know this for

02:03 - 48.154 a, your main fact, let me.

02:03 - 48.554 Let me ask you your

02:03 - 52.892 amicus to association.

02:03 - 53.392 Tells us that the right to

02:03 - 53.959 council does not attach for 6

02:03 - 54.493 amendment purposes until the

02:03 - 00.900 defendant is brought in front of

02:04 - 01.367 Judicial officer do you

02:04 - 05.771 agree? No, I don't.

02:04 - 06.238 Okay, what's your view?

02:04 - 08.274 Then? What is your view?

02:04 - 12.111 I agree with the superior court.

02:04 - 12.611 I think they found that it

02:04 - 13.112 attached with the filing a

02:04 - 14.847 formal charges.

02:04 - 18.551 So, going back to your

02:04 - 19.151 hypothetical counselor, at what

02:04 - 19.718 point if the person was caught

02:04 - 25.791 with all the.

02:04 - 26.392 Evidence and he's brought in at

02:04 - 26.959 what point would you have said

02:04 - 27.526 we, at what point during that

02:04 - 36.435 custodial interrogation would

02:04 - 39.338 Once charges were

02:04 - 42.741 filed, I would say.

02:04 - 47.012 So, I think that a 6 amendment

02:04 - 47.613 has to be invoked, as opposed to

02:04 - 48.147 being cloak at the moment of

02:04 - 52.952 adversarial proceedings.

02:04 - 57.923 My understanding of the entire

02:04 - 58.457 defense position is that it

02:04 - 59.058 doesn't attach until the charges

02:04 - 03.329 are filed. So.

02:05 - 03.929 Right and charges were filed in

02:05 - 04.463 this particular case in this

02:05 - 08.267 case. Yes.

02:05 - 08.734 So, Miranda for the 5th

02:05 - 09.235 amendment no, we're in the

02:05 - 09.702 Constitution as counsel

02:05 - 17.309 indicates nowhere in the

02:05 - 17.910 The right to counsel via Miranda

02:05 - 20.179 is traditionally create it.

02:05 - 20.646 Create it yeah, the 6th

02:05 - 25.484 amendment clearly.

02:05 - 26.051 Gives them a right to counsel

02:05 - 26.585 and digitally create mandate

02:05 - 27.119 that it begins at at, at, at

02:05 - 34.527 some type of criminal episode.

02:05 - 34.994 So, I guess the question

02:05 - 39.031 I have is, how is it.

02:05 - 39.498 That in this particular

02:05 - 40.099 scenario, we have an individual

02:05 - 45.271 who was not aware.

02:05 - 45.871 That a criminal charge had come

02:05 - 46.472 against and such that he was no

02:05 - 47.072 longer a suspect, but he was the

02:05 - 54.346 target of the commonwealth

02:05 - 54.947 And yet he was not advised that

02:05 - 55.514 he was now a defendant and not

02:05 - 01.253 a.

02:06 - 01.820 Suspect other than that change

02:06 - 02.388 the playing field as the, his

02:06 - 07.626 constitutional protections.

02:06 - 12.898 Mandated by the 6.

02:06 - 13.365 I think is 6 amendments

02:06 - 13.933 certainly attached and that's

02:06 - 14.533 why it was incumbent upon police

02:06 - 21.507 to read the Miranda warning,

02:06 - 22.107 Wait, what possible reason would

02:06 - 22.675 be not telling him he would be

02:06 - 27.813 in charge.

02:06 - 31.817 I honestly don't know.

02:06 - 35.120 Mr. chief justice other than.

02:06 - 35.487 There was no such

02:06 - 39.291 requirement at the time.

02:06 - 39.892 It would seem to me, it would a

02:06 - 40.459 common sense. Would make it a

02:06 - 43.862 more informed waiver.

02:06 - 44.463 And you just say, look, you have

02:06 - 44.997 these rights, and by the way

02:06 - 45.598 you've been charged with a crime

02:06 - 46.298 now, you want to.

02:06 - 50.836 Certainly, if if he had been

02:06 - 51.403 told that we wouldn't be here,

02:06 - 53.939 but I think he was given.

02:06 - 58.210 A lot of other information.

02:06 - 58.777 Such as being told that he was

02:06 - 59.378 under arrest for his involvement

02:06 - 02.381 in a homicide.

02:07 - 02.848 The chains that justice

02:07 - 07.653 bear reference.

02:07 - 08.220 We know that he was aware that

02:07 - 08.787 the shooting result, and then

02:07 - 09.388 the death of 2 people before he

02:07 - 19.231 came to the police station. So I

02:07 - 19.832 Of this investigation, and that

02:07 - 20.432 he was under arrest and not free

02:07 - 21.033 to leave do specifically because

02:07 - 25.204 of his.

02:07 - 25.638 Criminal misconduct in

02:07 - 28.507 that particular incident.

02:07 - 28.874 Thank you. Okay. A

02:07 - 34.947 fairly straightforward.

02:07 - 41.520 Anything else? Mr. way.

02:07 - 44.757 Oh, I wanted to say just.

02:07 - 45.224 What I initially started

02:07 - 47.559 saying is that.

02:07 - 52.398 Um, I believe that.

02:07 - 52.898 He was fully aware of the

02:07 - 53.499 consequences of waving his right

02:07 - 54.066 to counsel just as aware as he

02:07 - 58.303 would have been.

02:07 - 58.904 Under my hypothetical situation,

02:07 - 59.505 and under my hypothetical, there

02:07 - 01.940 was.

02:08 - 02.441 Would be no constitutional

02:08 - 02.975 violation and we wouldn't be

02:08 - 04.843 here.

02:08 - 05.411 And so I think the information

02:08 - 10.149 in both instances is the same.

02:08 - 10.649 He's told that it's not a

02:08 - 11.216 possibility. It's a guarantee.

02:08 - 11.784 It will be used against you in

02:08 - 15.754 court.

02:08 - 16.355 And due to his criminal history,

02:08 - 16.855 I think he understood the

02:08 - 20.726 implications of that more.

02:08 - 21.293 Then a novice might understand

02:08 - 21.894 and and I do want to add that. I

02:08 - 26.532 think.

02:08 - 27.066 The collective weight of the

02:08 - 27.599 persuasive authority that I

02:08 - 28.067 referenced in my brief.

02:08 - 31.470 Certainly.

02:08 - 32.071 Does weigh in favor of affirming

02:08 - 36.642 sentence in this case.

02:08 - 37.142 Yeah, certainly the way to

02:08 - 37.743 federal authorities seems to be

02:08 - 42.448 in favor of your position.

02:08 - 43.048 And the state to the department,

02:08 - 43.582 I think of referenced their

02:08 - 47.086 respective constitutions, but.

02:08 - 47.686 You have not invoke Pennsylvania

02:08 - 50.389 constitution as you're.

02:08 - 54.860 Rather the has not so.

02:08 - 55.294 Thank you. Thank you.

02:08 - 57.996 Mr. chief justice.

02:08 - 58.430 Take a brief pause and

02:08 - 02.334 then we'll call the next.

02:09 - 36.368 The next argument is us venture

02:09 - 36.902 ink versus the commonwealth

02:09 - 37.436 Department of community and

02:09 - 44.643 economic development

02:09 - 45.644 J Michael Adams. Jr.

02:09 - 49.915 Good afternoon, and this appeal

02:09 - 50.516 the Department of community and

02:09 - 51.049 economic development awarded

02:09 - 56.588 grants to Ellen.

02:09 - 57.189 The system constructing natural

02:09 - 57.723 gas, fueling stations in the

02:09 - 00.692 common law.

02:10 - 01.160 But when the department

02:10 - 04.897 refused to reimburse a.

02:10 - 05.397 Were allegedly failing to

02:10 - 08.767 abide by the grant agreement.

02:10 - 09.201 Tell us out an action

02:10 - 12.538 with the board of planes.

02:10 - 13.105 Which results disputes arising

02:10 - 13.572 from contracts with the

02:10 - 18.143 commonweal.

02:10 - 18.744 However, the board may not hear

02:10 - 19.344 planes related to grants unless

02:10 - 19.945 the grass primary purpose was to

02:10 - 25.884 procure construct the grant for.

02:10 - 26.351 Construction is defined

02:10 - 30.155 by the procurement code.

02:10 - 30.622 Includes assembling any

02:10 - 34.493 public structure of billing.

02:10 - 34.927 For the controversy at

02:10 - 38.096 issue centers on weather.

02:10 - 38.630 Public means publicly owned

02:10 - 41.033 or publicly accessible.

02:10 - 45.370 The neuron, thank you. Mr. chief

02:10 - 45.971 justice members of the court. I

02:10 - 46.405 want to start with the

02:10 - 52.544 commonwealth Court's opinion on

02:10 - 56.181 the court says nonetheless, the

02:10 - 56.715 aforementioned cases support

02:10 - 57.316 petitioners contention that its

02:10 - 02.688 interpretation of statutory

02:11 - 05.958 Is plausible they cite in our

02:11 - 06.558 down case accordingly this court

02:11 - 07.159 concludes that the phrase public

02:11 - 12.764 structure or.

02:11 - 13.232 Building in section 103

02:11 - 18.437 of the procurement code.

02:11 - 19.037 Is ambiguous and neither party,

02:11 - 19.605 and the present appeal to the

02:11 - 20.138 Supreme Court has challenged

02:11 - 30.549 this holding. We believe that

02:11 - 32.818 That section 1 of the 3 of the

02:11 - 34.786 procurement code is ambiguous.

02:11 - 38.023 But why we're here what we think

02:11 - 38.457 the mistake was by the

02:11 - 38.991 commonwealth court is if you

02:11 - 48.433 read through the balance of its

02:11 - 53.071 Nowhere is there any analysis.

02:11 - 53.639 Of the statutory construction

02:11 - 02.247 act section 1928 7.

02:12 - 02.848 And or the seminal decisions of

02:12 - 03.415 handover tell well, data quest

02:12 - 12.090 and or scientific games.

02:12 - 12.624 Affirmation that Hanover, in

02:12 - 13.225 fact, is a lot of Pennsylvania,

02:12 - 13.792 and we think as a result, the

02:12 - 24.102 court came to the incorrect

02:12 - 29.174 Quickly section 19 to 28 be.

02:12 - 29.675 States all provisions of a

02:12 - 30.208 statute of the classes here

02:12 - 35.113 after enumerated.

02:12 - 35.647 And I want to emphasize this

02:12 - 41.219 shall be strictly construed.

02:12 - 41.687 Subsection 7 under B is

02:12 - 42.187 provisions decreasing the

02:12 - 42.688 jurisdiction of a court of

02:12 - 47.025 record.

02:12 - 50.629 We believe this section directly

02:12 - 51.229 governs the controversy at hand

02:12 - 51.763 meaning that unless there is

02:12 - 01.340 explicit language in the

02:13 - 03.208 saying that jurisdiction

02:13 - 05.744 does not attach.

02:13 - 09.114 Strict construction mandates

02:13 - 09.648 that this court, and, or the

02:13 - 10.215 commonwealth cord should have

02:13 - 19.157 concluded that jurisdiction

02:13 - 19.725 And based on you, I'm sorry to

02:13 - 20.325 interrupt your opening, but you

02:13 - 26.365 just.

02:13 - 26.932 Address a point that I'd like

02:13 - 27.466 you to clarify is supportive

02:13 - 31.136 claims the court of record.

02:13 - 31.636 It is your honor yes. And

02:13 - 33.839 your authority for that.

02:13 - 37.409 I don't have anything to cite to

02:13 - 37.943 you, except that I know that

02:13 - 44.449 that is I apologize.

02:13 - 45.050 I should have been prepared for

02:13 - 45.650 that question, but I do believe

02:13 - 46.218 yes, it is a court of record,

02:13 - 53.925 because the any appeal from

02:13 - 56.795 Why why is it a court? I probing

02:13 - 57.362 the issue I don't I don't know

02:13 - 01.767 the answer to it.

02:14 - 02.200 And I haven't seen any

02:14 - 02.801 discussion in either a brief of

02:14 - 03.402 that particular point. You rely

02:14 - 08.607 so heavily on that proposition.

02:14 - 09.074 I just approve it. It's

02:14 - 09.641 certainly not of course that's

02:14 - 16.548 delineated in article 5.

02:14 - 17.149 Yeah, well, I wonder yet, on the

02:14 - 17.749 other hand article 5 allows the

02:14 - 25.323 general assembly to create.

02:14 - 25.924 Newport, but my question is that

02:14 - 26.458 they were going to create a

02:14 - 27.059 court why wouldn't they call it

02:14 - 29.861 a court claims.

02:14 - 34.466 I don't know the answer to that,

02:14 - 35.067 but it's the board of claims and

02:14 - 35.667 it does everything a court does

02:14 - 44.609 it takes evidence? It makes

02:14 - 44.943 Apply before the

02:14 - 50.916 board of claims, so.

02:14 - 51.483 Um, I didn't see any challenge

02:14 - 52.050 to that from anybody along the

02:14 - 52.617 way. I firmly believe it is a

02:14 - 04.262 court of record. It's the court

02:15 - 04.830 They go up on appeal. I don't

02:15 - 05.330 know how we would call it

02:15 - 06.865 anything by court.

02:15 - 09.434 You just described counsel is

02:15 - 09.901 also true of the workers

02:15 - 15.574 compensation.

02:15 - 16.108 A PO, board, they generally

02:15 - 16.575 abide either goals so by

02:15 - 17.142 procedure they generally abide

02:15 - 23.482 by.

02:15 - 24.049 Every entry rules more or less

02:15 - 24.583 uh, there's an appeal as of

02:15 - 30.655 right from that. Try to.

02:15 - 31.256 I and get it to me, it's an open

02:15 - 31.823 question, but I'll accept your

02:15 - 40.899 proposition for the.

02:15 - 41.500 Sake of argument how how do you

02:15 - 42.000 how do you align that that

02:15 - 42.567 presumption or that maxim that

02:15 - 53.945 you'd like us to apply with the

02:15 - 54.346 sovereign immunity?

02:15 - 56.181 Uh, which in shorthand

02:15 - 01.086 requires us to.

02:16 - 01.553 Interpret in such way so

02:16 - 07.092 that the immunity applies.

02:16 - 07.592 It's been a community case

02:16 - 08.193 graph. I mean, that's really at

02:16 - 08.727 the bottom line with this is

02:16 - 13.031 about.

02:16 - 13.598 I would respectfully disagree

02:16 - 14.065 that this is a sovereign

02:16 - 14.566 immunity case, and I would

02:16 - 21.706 distinguish this case.

02:16 - 22.307 From scientific games, which was

02:16 - 22.841 a sovereign immunity case, I

02:16 - 23.408 understand. And recognize and

02:16 - 28.513 acknowledge.

02:16 - 29.080 Its sovereign immunity here is

02:16 - 29.648 commensurate with jurisdiction

02:16 - 35.654 meaning if jurisdiction exists.

02:16 - 36.154 Then there's no sovereign

02:16 - 36.655 immunity. There's been an

02:16 - 41.159 express waiver through 17 to be.

02:16 - 41.693 However, if you analytical,

02:16 - 46.765 you look at this.

02:16 - 47.232 We can never get to the

02:16 - 47.766 sovereign immunity issue. If

02:16 - 48.300 there is not subject matter

02:16 - 51.836 jurisdiction.

02:16 - 52.370 Subject matter jurisdiction

02:16 - 56.808 necessarily comes 1st.

02:16 - 57.409 If a court doesn't have subject

02:16 - 57.943 matter jurisdiction, then it

02:16 - 03.415 doesn't have the power.

02:17 - 03.915 To adjudicate anything and

02:17 - 04.516 anything that it does attempt to

02:17 - 08.220 adjudicate is void.

02:17 - 08.753 Under the precedence of this

02:17 - 09.321 court, so yes, I believe this

02:17 - 14.793 is.

02:17 - 15.327 A jurisdictional case, not a

02:17 - 15.860 sovereign immunity case. The

02:17 - 16.461 distinction being in scientific

02:17 - 21.900 games.

02:17 - 22.400 The claim is there sought

02:17 - 22.934 original jurisdiction in the

02:17 - 23.535 commonwealth court, rather than

02:17 - 29.808 the board of claims.

02:17 - 30.275 And when the, the issue

02:17 - 33.945 comes up to this court.

02:17 - 34.412 Uh, the only grounds for

02:17 - 39.718 dismissing that to.

02:17 - 40.151 Was sovereign immunity

02:17 - 42.921 and that's why.

02:17 - 43.355 It's the flip side of

02:17 - 47.259 the same point kind of.

02:17 - 47.859 So, it stops claimants, like my

02:17 - 48.360 client from falling in the

02:17 - 48.927 commonwealth court, or in some

02:17 - 56.167 other forum.

02:17 - 56.668 Uh, it the commonwealth is

02:17 - 57.202 immune in those forums, the

02:17 - 57.702 sovereign immunity, being

02:17 - 03.575 commensurate with.

02:18 - 03.975 Jurisdiction of the

02:18 - 08.413 board of claims a.

02:18 - 09.014 Funnels us all into the board of

02:18 - 09.547 times where the legislature

02:18 - 10.048 wanted these claims to be

02:18 - 19.324 adjudicated. So, that's how I

02:18 - 19.824 Acknowledge that there are

02:18 - 20.358 certain interpretation rules

02:18 - 20.925 that go when it's a sovereign

02:18 - 25.897 immunity case.

02:18 - 26.398 But I would submit to you

02:18 - 26.998 wholeheartedly here that this is

02:18 - 27.565 not a sovereign immunity case.

02:18 - 34.572 It is a jurisdictional issue.

02:18 - 38.243 And language shall be strictly.

02:18 - 38.643 Construed causes the

02:18 - 43.715 commonwealth port.

02:18 - 44.249 To have been mistaken in its

02:18 - 44.749 analysis, but I guess I'm

02:18 - 45.350 struggling with your distinction

02:18 - 50.488 because.

02:18 - 53.825 The board of claims exists.

02:18 - 54.159 To adjudicate or

02:18 - 58.930 hear cases where.

02:18 - 59.397 The general assembly has

02:18 - 01.566 way sovereign immunity.

02:19 - 08.206 Correct yes, yes. And no.

02:19 - 08.707 Um, the, the, the general

02:19 - 09.274 assembly has waived sovereign

02:19 - 09.841 immunity in 17 to be and they

02:19 - 20.251 make express reference to

02:19 - 24.756 Which is the procedural.

02:19 - 25.357 Section of the procurement code

02:19 - 25.857 for pursuing claims in the

02:19 - 30.729 before the board of claims.

02:19 - 33.865 So I believe there's been an

02:19 - 34.299 explicit waiver where

02:19 - 34.833 jurisdiction is found, but I

02:19 - 39.003 believe.

02:19 - 42.774 To be logically and analytically

02:19 - 43.308 consistent the court has to

02:19 - 43.808 address the jurisdictional

02:19 - 50.915 issue. 1st before it.

02:19 - 51.416 Would touch upon sovereign

02:19 - 52.016 immunity and in this case, once

02:19 - 52.584 you resolve the jurisdictional

02:19 - 57.756 issue.

02:19 - 58.323 Sovereign immunity essentially

02:19 - 58.857 is collateral stopper, which

02:19 - 03.428 would be work because it's.

02:20 - 03.828 Uh, if the board of

02:20 - 07.532 claims has jurisdiction.

02:20 - 08.133 Then, uh, the sovereign immunity

02:20 - 08.633 does not apply. It's been

02:20 - 12.804 expressly waved.

02:20 - 13.371 Okay, thank you. So it's just

02:20 - 17.342 a spare. Can you hear me.

02:20 - 20.445 Loud and clear. All right. Good.

02:20 - 25.717 This is about the procurement

02:20 - 26.317 code implicitly that means that

02:20 - 26.885 the commonwealth is attempting

02:20 - 31.456 to procure something.

02:20 - 31.856 No, and 1 or 2 left

02:20 - 35.994 grants don't count.

02:20 - 36.494 Unless they're to procure

02:20 - 41.299 construction in 103.

02:20 - 41.766 Are we building a public

02:20 - 42.367 structure or doing something to

02:20 - 42.934 public real property etc under

02:20 - 51.009 the faxes case? I wasn't sure

02:20 - 51.543 Respects to to your client,

02:20 - 56.748 they least private property.

02:20 - 57.348 They leased equipment that they

02:20 - 57.916 put on private property. If I

02:20 - 00.819 understand this correctly.

02:21 - 05.690 So, I don't see how they fall.

02:21 - 06.191 I'm not even sure I see an

02:21 - 06.791 ambiguity where the procurement

02:21 - 12.430 code and the board claims.

02:21 - 12.764 And the call us

02:21 - 14.499 interest in procuring.

02:21 - 17.836 Building or improvements on

02:21 - 18.436 public structures, or to public

02:21 - 22.907 real property.

02:21 - 23.475 If anything to do with a case

02:21 - 24.075 where were for whatever reason,

02:21 - 24.609 presume, hopefully they made

02:21 - 28.213 money.

02:21 - 28.780 Your client, at least private

02:21 - 29.247 property and took leased

02:21 - 29.848 equipment to put it on there to

02:21 - 31.583 run the business.

02:21 - 34.986 I believe those facts your honor

02:21 - 35.520 are at issue. I, we did not

02:21 - 36.120 concede and I believe it should

02:21 - 46.764 go back to our statement of

02:21 - 50.034 The document may have been

02:21 - 50.602 titled lease, but I believe it

02:21 - 51.169 was just a financing mechanism

02:21 - 59.043 where the equipment was owned at

02:21 - 59.644 We saw that as an issue that was

02:21 - 00.211 going to be adjudicated before

02:22 - 02.413 the board of.

02:22 - 02.947 Claims more broadly and I, I

02:22 - 03.448 think your question is, is

02:22 - 08.286 really.

02:22 - 08.887 More broadly, why are we looking

02:22 - 09.354 at this issue under the

02:22 - 09.954 procurement code? And my answer

02:22 - 16.861 to that is it is that.

02:22 - 17.462 The commonwealth was purchasing

02:22 - 17.996 clean energy infrastructure

02:22 - 18.463 through a public private

02:22 - 30.241 partnership here as a practical

02:22 - 30.742 Because until you have the

02:22 - 31.309 vehicles are on the road that

02:22 - 31.809 can use this type of clean

02:22 - 42.921 energy. It doesn't make

02:22 - 43.521 There's nobody there to buy the

02:22 - 44.088 fuel, and conversely nobody's

02:22 - 44.622 going to put vehicles on the

02:22 - 53.231 road that burn that type of fuel

02:22 - 53.798 So, it can't happen unless the

02:22 - 57.769 government gets involved.

02:22 - 02.941 And so from a public policy.

02:23 - 03.541 Basis I, at urged the court, the

02:23 - 04.108 commonwealth was making a very

02:23 - 04.642 real purchase here of clean

02:23 - 10.715 energy infrastructure.

02:23 - 13.284 I think the goal here is some at

02:23 - 13.851 some point to move completely

02:23 - 15.820 away from.

02:23 - 19.257 Uh, burning petroleum and our

02:23 - 19.791 cars and and burning cleaner

02:23 - 20.325 energy and maybe 1 day, even

02:23 - 25.530 moving from that.

02:23 - 26.130 But in the very truest sense, I

02:23 - 26.731 believe there was a procurement

02:23 - 30.368 here. Your honor.

02:23 - 30.969 Well, and that gets you back to

02:23 - 31.536 the beginning and I appreciate

02:23 - 35.840 that answer.

02:23 - 36.441 Is it your client's position and

02:23 - 37.041 isn't a contested issue in this

02:23 - 37.475 case, which I may have

02:23 - 41.512 misunderstood going through

02:23 - 41.946 That you, in fact, are

02:23 - 46.250 doing some sort of.

02:23 - 46.818 Building or improvement to the

02:23 - 47.318 state's real property, as

02:23 - 52.457 opposed to private property.

02:23 - 53.057 No, and I didn't mean to mislead

02:23 - 53.625 the court. This is all private

02:23 - 54.125 property and everything is

02:23 - 04.769 privately owned it is open to

02:24 - 05.370 Public building pop up, because

02:24 - 05.837 I'm and I know it's not

02:24 - 06.437 intentional, but I think I got 2

02:24 - 17.715 separate answers. I don't want

02:24 - 18.216 Hey, police equipment and

02:24 - 18.783 putting it on private land to

02:24 - 23.554 run your business or conversely.

02:24 - 24.122 Are you taking public land and

02:24 - 24.722 it's not it's accessible to the

02:24 - 30.328 public.

02:24 - 30.762 You know, the, the big

02:24 - 31.362 department store, or or mall is

02:24 - 31.929 accessible to the public, the

02:24 - 40.772 airports susceptible to the

02:24 - 44.075 And improving it, we are not

02:24 - 44.642 your honor, it's private land.

02:24 - 45.243 The part of your question that I

02:24 - 49.747 took issue was was a leasing

02:24 - 52.717 Um, I disagree with that, but

02:24 - 53.251 no, this is all private land

02:24 - 56.554 it's open to the public.

02:25 - 00.825 Is the equipment that you're

02:25 - 01.359 putting on this private land

02:25 - 01.926 going to eventually be titled

02:25 - 10.334 the commonwealth under your

02:25 - 13.037 Your whole case rises or falls.

02:25 - 15.840 On the theory that the public

02:25 - 16.441 can access that land, it should

02:25 - 21.946 be deemed public.

02:25 - 22.547 That's correct. I'm sorry I just

02:25 - 23.147 I assumed you were going to say

02:25 - 23.681 that's correct. Okay. Every

02:25 - 30.421 state park every state.

02:25 - 34.892 Everything's public land.

02:25 - 35.393 Yeah, there's hundreds of

02:25 - 35.927 thousands of acres of public

02:25 - 41.399 plan.

02:25 - 41.999 Your theory would be if you put

02:25 - 42.600 somebody's equipment on it, you

02:25 - 45.336 somehow fall under this.

02:25 - 48.840 Doesn't procurement mean the

02:25 - 49.440 Congress procuring something and

02:25 - 50.041 that's why I tried to answer the

02:25 - 55.747 question, because I saw where

02:25 - 59.484 They're procuring clean energy

02:25 - 00.051 infrastructure and this is the

02:26 - 00.651 only way it's ever gonna happen

02:26 - 04.355 and from a policy standpoint,

02:26 - 07.792 if they stiff people and forgive

02:26 - 08.359 my verbiage but that's the way

02:26 - 11.395 my client feels.

02:26 - 14.632 You're not going to have

02:26 - 15.199 contractors lining up to build

02:26 - 15.800 these projects. They're going to

02:26 - 22.974 go to other states and we're not

02:26 - 23.474 Clean energy available the

02:26 - 23.975 telephone. I don't want to

02:26 - 24.575 dominate this. So, let me try to

02:26 - 28.112 make this my last question.

02:26 - 28.613 Because we don't want your

02:26 - 29.147 clients if we're the Supreme

02:26 - 29.680 Court, we want to try to do

02:26 - 32.416 justice.

02:26 - 32.817 Why is this the only

02:26 - 35.820 way this can happen?

02:26 - 36.420 Private property, private lease

02:26 - 38.289 agreements to produce this.

02:26 - 42.059 Because the state doesn't want

02:26 - 42.593 to take on. I imagine if the

02:26 - 43.127 state chose, it could start

02:26 - 52.403 opening up feeling stations, but

02:26 - 55.907 They don't want to deal with all

02:26 - 56.507 the headaches that go along with

02:26 - 57.074 operating a feeling station of

02:26 - 03.414 that nature. But I think the

02:27 - 06.684 That's my answer to your

02:27 - 07.218 question and that's that's a

02:27 - 07.752 finance for. Thank you very

02:27 - 15.193 much. Well, this is what the

02:27 - 15.726 Couple of additional points

02:27 - 20.364 I wanted to make the.

02:27 - 20.965 Commonwealth court relied almost

02:27 - 21.532 exclusively on section 1921 of

02:27 - 29.273 the statutory construction act.

02:27 - 29.841 And what I wanted to point out

02:27 - 30.374 to this court is the section

02:27 - 30.975 that the commonwealth court, and

02:27 - 38.049 the commonwealth in this case

02:27 - 38.616 Uh, states, when words of the

02:27 - 39.183 statute are not explicit, the

02:27 - 39.650 intention of the general

02:27 - 50.661 assembly may be ascertained by

02:27 - 51.262 Other matters the former law, if

02:27 - 51.829 any, including other statutes

02:27 - 52.296 upon the same or similar

02:27 - 00.538 subjects. This is not mandatory.

02:28 - 00.938 Section 19 2008 says

02:28 - 07.645 shall and so I would.

02:28 - 08.212 Submit to the court that there

02:28 - 08.779 has to be some rationale under

02:28 - 09.380 19, 2008 and strict construction

02:28 - 16.354 and the case law is developed

02:28 - 16.888 That would mandate a finding

02:28 - 17.355 against me and I, I, I'm

02:28 - 22.593 struggling to see how that.

02:28 - 23.194 Could happen when we dealt down

02:28 - 23.761 even further into section 1921

02:28 - 24.328 the 1st thing they tell us to

02:28 - 31.936 look to is the former law.

02:28 - 32.536 Now, the former law here, as it

02:28 - 33.137 existed prior to the amendments

02:28 - 33.738 to the procurement code in 2002,

02:28 - 41.112 there's I don't think any

02:28 - 41.679 That the board of claims would

02:28 - 42.280 have had jurisdiction over this

02:28 - 42.780 matter, because this was a

02:28 - 50.221 contract with the commonwealth

02:28 - 55.760 And so the 2002.

02:28 - 56.327 Amendments to the procurement

02:28 - 56.761 code are reducing the

02:28 - 57.295 jurisdiction of the board of

02:28 - 04.568 claims and under 19, 2008.

02:29 - 05.169 Reduction has to be given strict

02:29 - 05.703 construction and under data

02:29 - 11.542 quest.

02:29 - 12.109 Any reduction in jurisdiction

02:29 - 12.710 like that has to be done through

02:29 - 13.277 explicit language. It can't be

02:29 - 22.420 implied or inferential. And I

02:29 - 25.957 Because of the ambiguity over.

02:29 - 26.290 Public building

02:29 - 30.394 public structure a.

02:29 - 30.895 To hold that jurisdiction

02:29 - 31.429 doesn't exist. You would be

02:29 - 35.900 doing just that inferring.

02:29 - 36.434 The next Avenue under 1921,

02:29 - 37.034 direct us to other statutes upon

02:29 - 45.209 the same or similar subjects.

02:29 - 45.710 And here, the commonwealth

02:29 - 46.243 court, this seems to be the

02:29 - 46.844 heart of their rationale and the

02:29 - 52.249 heart of the commonwealth

02:29 - 57.388 That.

02:29 - 57.922 That the case law under the

02:29 - 58.489 separation, Zac, and under the

02:29 - 02.727 general burrow code.

02:30 - 03.094 Uh, that construed

02:30 - 07.398 provisions, uh.

02:30 - 07.965 Of public building, or public

02:30 - 08.532 structure in those statutes as

02:30 - 15.306 meaning owned by the public.

02:30 - 15.906 Are owned by the government I'd

02:30 - 16.474 submit to you that those cases

02:30 - 17.008 are completely in applicable

02:30 - 26.851 here because they are not

02:30 - 27.418 They all involved bidding for

02:30 - 28.019 construction by a jobs that the

02:30 - 28.619 government was bidding out. They

02:30 - 37.795 did not involve.

02:30 - 38.362 Jurisdiction therefore they're

02:30 - 38.863 not dealing with the same

02:30 - 39.463 subject matter. Uh, and they're

02:30 - 45.202 not similar.

02:30 - 45.803 The next thing I wanted to call

02:30 - 46.404 the courts that we're not going

02:30 - 46.971 to go on forever here now. So

02:30 - 54.011 why don't you start summing up?

02:30 - 54.612 I would urge the court to review

02:30 - 55.212 1928. I would submit there's an

02:30 - 55.746 ambiguity in the statute and

02:30 - 04.622 with a strict construction

02:31 - 05.122 And for matters of public

02:31 - 09.460 policy, like, justice bear said.

02:31 - 14.565 I believe my client is entitled

02:31 - 15.132 to his day in court, and that

02:31 - 15.666 the state should be held to

02:31 - 25.076 account for its contractual

02:31 - 28.779 Thank you very much for the

02:31 - 29.380 opportunity to present this. And

02:31 - 29.947 I, I'm very appreciative that

02:31 - 31.482 you accepted this case.

02:31 - 36.887 Thank you. Mr. Mr. Adams.

02:31 - 40.891 Good afternoon. Mr. chief

02:31 - 41.492 justice it's an honor to appear

02:31 - 42.093 before this court today. My name

02:31 - 48.899 is Mike Adams. I serve as chief

02:31 - 52.269 And in that role, I also service

02:31 - 52.837 chief council to the come off

02:31 - 53.437 financing authority, which is an

02:31 - 55.873 independent.

02:31 - 58.809 Come while agency whose 7 member

02:31 - 59.276 board includes 3 cabinet

02:31 - 03.881 secretaries,

02:32 - 04.281 and for legislative

02:32 - 06.750 Congress appointees,

02:32 - 10.654 but we very much believe this is

02:32 - 11.255 a sovereign immunity case and as

02:32 - 11.789 just as fair highlighted the

02:32 - 17.528 procurement code governs it.

02:32 - 19.864 And, in fact, the procurement

02:32 - 20.364 code does not contain and

02:32 - 24.602 express.

02:32 - 25.136 Waiver of sovereign immunity

02:32 - 25.703 when you have grant funds like

02:32 - 31.242 this.

02:32 - 31.809 That are used in construction

02:32 - 37.281 of a private development.

02:32 - 37.781 Simply because the private

02:32 - 38.382 development or facilities happen

02:32 - 38.983 to be open to the public. And in

02:32 - 46.824 fact, the procurement code

02:32 - 47.258 The important doctrine

02:32 - 50.027 of sovereign immunity.

02:32 - 50.561 And also in the procurement

02:32 - 54.532 code in section 1 or 2.

02:32 - 55.032 I asked as was referenced

02:32 - 58.636 it specifically.

02:33 - 01.805 From the definition

02:33 - 05.242 of construction.

02:33 - 05.743 Which thereby removes the

02:33 - 06.277 jurisdiction of the board of

02:33 - 10.881 claims.

02:33 - 11.448 The alternative energy, clean

02:33 - 18.155 energy program under the, the.

02:33 - 18.689 Under the CFA, which is the

02:33 - 19.290 source of these funds, designate

02:33 - 23.827 these as grants.

02:33 - 27.898 Not as a procurement contract.

02:33 - 28.465 And, in fact, the alternative

02:33 - 33.637 energy investment act itself.

02:33 - 34.205 Likewise does not contain any

02:33 - 34.738 express waiver of sovereign

02:33 - 38.275 immunity.

02:33 - 44.248 Moreover, just a.

02:33 - 44.715 Yes, and I don't want to

02:33 - 45.249 interrupt your introductory

02:33 - 49.553 statements, but you're, you're.

02:33 - 49.920 Going over awfully

02:33 - 52.523 important matters.

02:33 - 52.890 How does somebody

02:33 - 56.594 who takes money.

02:33 - 57.161 Whatever it is the alternative

02:33 - 01.899 energy command program.

02:34 - 02.499 I'm sure that's not the correct

02:34 - 03.100 name. How in the event that they

02:34 - 07.605 get into a contractual dispute.

02:34 - 08.072 Where do they go to to,

02:34 - 12.309 to get it redress.

02:34 - 12.910 Well, if it's in, it depends on

02:34 - 13.477 what vehicle that is just this

02:34 - 14.078 if it's a procurement contract,

02:34 - 25.589 then they have release in the

02:34 - 26.056 It's a pure grant, which

02:34 - 30.461 is not an entitlement.

02:34 - 31.028 And they have to follow terms

02:34 - 31.562 and conditions of the grant,

02:34 - 32.096 which unfortunately, in this

02:34 - 36.100 case, the grantee did not do.

02:34 - 36.700 Then they don't qualify for the

02:34 - 37.234 grant and based on sovereign

02:34 - 42.306 immunity.

02:34 - 42.873 Uh, they don't, they don't go

02:34 - 43.440 anywhere for release to answer

02:34 - 45.976 your question.

02:34 - 46.477 Can you tell me what this

02:34 - 50.314 client team did wrong?

02:34 - 50.881 It puts them, you know, their

02:34 - 51.315 view is that they got

02:34 - 54.285 slaughtered by the commonwealth.