00:00 - The next case is the matter of in the interest of TCU, b, a minor.

00:04 - This case regards

00:05 - a section of Pennsylvania's criminal code that applies to juveniles.

00:09 - Specifically, the question is whether the Superior Court correctly determined

00:13 - that the definition of, quote, nudity was met under the statute.

00:18 - The case arose from a 2021 delinquency complaint filed against TCU B, alleging

00:23 - the transmission of sexually explicit images by a minor and cyber harassment.

00:29 - According to T Cubs brief in 2020, the minor victim's

00:33 - mother contacted police regarding an inappropriate video

00:37 - of her daughter on Instagram, which exposed the bottom of her breast.

00:41 - Following a hearing, the Dauphin County Court found that TCU

00:44 - B had committed the offenses and adjudicated her delinquent.

00:48 - The ruling was appealed to the Superior Court and a panel affirmed

00:51 - the trial court's decision.

00:53 - The application for the argument was also denied by the Superior Court.

00:58 - The Pennsylvania

00:58 - Supreme Court has granted TCU B allowance of appeal

01:02 - to resolve the remaining time to resolve the meaning of nudity under the statute

01:07 - and whether it requires the showing of the minors nipple to constitute nudity.

01:12 - Appellant T Cub has argued in her brief that the Superior Court improperly

01:16 - expanded the scope of the statute and the potential for criminal liability.

01:21 - TCV She also argues that the statute is ambiguous

01:25 - since it is subject to at least two very different interpretations

01:29 - and therefore must be construed in her favor.

01:32 - She argues that if the legislature intended to criminalize the breast

01:36 - in such an expansive manner, it could have done so.

01:39 - Finally, she argues that the Superior Court's decision

01:42 - creates an illogical split between the definitions of nudity

01:45 - found in other Pennsylvania statutes.

01:49 - Apparently, the Commonwealth of Pennsylvania has argued in its brief

01:53 - that the Superior Court's decision was correct

01:55 - and that the plain language of the statute encompasses the bottom of the breast.

02:00 - It argues that this particular statute is unique

02:03 - since it applies to minors electronically targeting other minors, and therefore,

02:07 - any other definitions of a nude of nudity found in other statutes are irrelevant.

02:13 - The Commonwealth also argues that the that the language of the statute

02:16 - is not ambiguous and that the interpretation urged by

02:20 - Kuby would reinforce the harm that the statute seeks to prevent.

02:25 - The Pennsylvania District Attorneys Association has filed an amicus brief

02:29 - in support of the Commonwealth in which it makes similar arguments.

02:33 - Let's watch and listen to the argument before the Pennsylvania Supreme Court

02:36 - in this case.

02:38 - In this case, appellant, a juvenile, was adjudicated delinquent

02:43 - of the crime of transmission of a sexually explicit image by a minor.

02:49 - After appellant posted on her Instagram account a video of the victim,

02:55 - an intellectually disabled juvenile, lifting her shirt

03:00 - to reveal her stomach bra and a portion of the bottom of her breasts.

03:05 - We granted review to consider whether these images

03:10 - constituted nudity as defined in the relevant statute.

03:15 - Good morning.

03:16 - Good morning, Madam Chief Justice.

03:19 - Members of the court, attorney Ryan Weiss.

03:22 - My name is Spencer Brownlee and I represent Te Cuba

03:25 - on behalf of the Dauphin County Public Defenders Office.

03:28 - The trial court and the Superior Court erred by construing and misinterpreting

03:34 - Section 6321 G by reading

03:37 - the definition of nudity purely anatomically.

03:40 - The court below ignored the statutes latent ambiguity within its application

03:45 - and in doing so, expanded the definition of nudity beyond

03:49 - both the angle of the statute and the Legislature's intent.

03:54 - It is in this applying the standard, as

03:58 - announced by the Superior Court, that we see the ambiguity of it

04:04 - brought to bear.

04:06 - This interpretation of the statute has massive implications

04:10 - for not only this particular statute and its different subsections, which include

04:17 - these sections that are not necessarily relevant

04:19 - to TCU BS adjudication, but as well as the understanding

04:23 - of nudity as defined in other sections of the crimes code.

04:28 - This Court should

04:31 - reverse the Superior Court and vacate

04:33 - this particular charge of Jacobs adjudication.

04:36 - I welcome the court's questions.

04:38 - Counsel, let me ask you,

04:40 - why would we have any interest

04:43 - in looking at other statutes when in this case

04:48 - the legislature did actually give a clear and unambiguous definition?

04:53 - They said nudity is any portion thereof below the top of the nipple.

04:59 - How can we possibly construe that as ambiguous?

05:04 - Well, thank you, Justice.

05:06 - The ambiguity found within the statute,

05:08 - as I said, is within the lane and is a lead in ambiguity.

05:12 - But it's in the application and breaking down each particular

05:18 - word throughout the statute as we go through it.

05:21 - So the showing of the female breast, not ambiguous, not a problem,

05:25 - not a question with a less than fully opaque covering.

05:28 - Got that.

05:30 - Any portion there of

05:32 - is where the ambiguity starts.

05:35 - There of

05:36 - below the top of the nipple could refer to the top of the nipple.

05:40 - So referring to that is being shown and anything below that with it being shown.

05:45 - Or as the Superior Court read it

05:49 - solely any form of anatomical relation ship

05:52 - related to the nipple.

05:55 - I would submit, Your Honor, that that constitutes

05:58 - an ambiguous interpretation that requires the rules of statutory construction,

06:03 - which can allow for the consideration

06:07 - of other states and their definitions.

06:10 - But it is not necessarily a requirement

06:15 - to, you know, interpret the state.

06:17 - It is used more within the context of showing

06:21 - how states Pennsylvania being one of them choose to criminalize

06:25 - this particular area is more you don't get to choose.

06:29 - If the legislature tells us any portion

06:32 - of the breast below the top of the nipple.

06:35 - I we don't get to choose

06:39 - whether to apply that language or not.

06:41 - That's what we're told.

06:42 - The statute means that you're just to make sure you're telling this court

06:47 - that you don't know what that means.

06:49 - Is that what you're telling this court?

06:51 - I am saying that that language can be reasonably construed

06:55 - to two separate meanings, which would constitute an ambiguity,

06:59 - which would require utilizing the tools of statutory construction.

07:10 - And to follow up on that point,

07:13 - it's ambiguous in the applicable nation.

07:16 - In this particular case, as recited,

07:18 - we're dealing with purely the under breast of a juvenile.

07:22 - There's no nipple being shown.

07:24 - It is purely the lower exposed breast, often

07:29 - that is viewed as the underboob and it's more towards the arm.

07:33 - This area of the body.

07:34 - However, taking with it the Superior Court's

07:39 - interpretation of any area below the portion, that also cuts both ways.

07:44 - It cuts towards the median, which in an instance where, for example,

07:49 - we're dealing with something like a low cut prom dress or something like that

07:52 - that now constitutes nudity under the statute, which, if applied

07:57 - consistently, not only would

07:59 - subsection C, which we're at issue with today,

08:04 - it would also apply to A and B, which states sexually explicit images.

08:09 - But within the definition of sexually explicit

08:12 - also brings the definition of nudity.

08:15 - The statute is ambiguous in its application

08:18 - for particularity, and it's understood phrasing.

08:21 - And part of this is to avoid a constitutional problem

08:24 - within the statute if it is construed as banning all forms of nudity, period.

08:31 - This Court is well aware that nudity per say is not prohibited, even

08:37 - within the context of what would

08:41 - plainly be criminalized as child pornography.

08:43 - Simple nude images of a minor is the case,

08:47 - and Davidson pointed out,

08:50 - does not necessarily rise to the level of prescribed nudity.

08:54 - Can I ask you a follow up question?

08:56 - You've said now a couple of times ambiguous in its application,

09:00 - which seems to be a curious phrasing.

09:03 - I wonder if by that

09:07 - you're referring to

09:09 - the inevitability that DA's are going to use

09:12 - their prosecutorial discretion in circumstances like this?

09:16 - And to the extent that's the case, what's problematic about that? DA's

09:21 - exercised prosecutorial discretion all the time.

09:24 - And presumably the D.A.

09:27 - looked at these circumstances and felt

09:30 - this merited a delinquency petition, whereas

09:34 - in many of the nudity circumstances you recite

09:39 - here and in your brief, no such exercise of discretion is used.

09:43 - What's what's wrong with that?

09:47 - So if I understand your question correctly, justice.

09:50 - Well,

09:52 - it is asking

09:53 - whenever I speak about ambiguities, how

09:57 - that would impact the exercise of prosecutorial discretion.

10:00 - Or am I miss understanding your question, Your Honor?

10:05 - Well, let me break it down.

10:08 - What do you mean when you say to us

10:12 - we are?

10:12 - I think we understand what it means to say a statute is ambiguous.

10:16 - And that was the purpose of my first question,

10:18 - because I don't see any ambiguity in what they said here.

10:21 - Then you've been saying this.

10:22 - You've been reciting this term, this phrasing, ambiguous in its application

10:29 - and searching my mind.

10:30 - All I can think of is that you're you're talking about prosecutorial discretion,

10:34 - which is which is a, you know, accepted

10:38 - and necessary device in our justice system.

10:41 - So what is it you mean by ambiguous in its application?

10:46 - Thank you, Your Honor.

10:47 - That clarifies things whenever I say ambiguous in its application

10:51 - or a latent ambiguity, I'm using those synonymously.

10:55 - And by that I mean whenever we're applying the statute

10:59 - to a female body, what would then constitute

11:04 - any area below the portion of the nipple

11:08 - when it's prescribed as underboob?

11:11 - That is what I mean by that.

11:12 - I am.

11:14 - Our contention is the statutes

11:17 - language of any portion thereof below the bottom of the nipple.

11:20 - That phrasing, that clause is ambiguous in the sense

11:25 - that it can either give full effect to the nipple

11:30 - or it is using and requires

11:32 - the nipple to constitute nudity, or it does not.

11:36 - And it's purely an anatomical definition depending on how that is read.

11:42 - There's either criminal conduct

11:43 - that's prescribed along with it or there's not.

11:47 - So while

11:50 - I would submit that we're dealing with a

11:54 - we're trying to define a state of being

11:57 - and what that state of being is in terms of nudity.

12:03 - So I'm I just don't see the ambiguity.

12:07 - I mean, the way you're reading this,

12:09 - we would have to exclude the words.

12:13 - We would have to say

12:16 - the showing of the female breast

12:18 - with less than a fully opaque covering

12:23 - of the nipple.

12:25 - I mean, we would have to read out the entire middle

12:29 - phrase in the statutory language.

12:33 - I mean, I can't disagree with you.

12:35 - I mean, if what you're arguing is this is an odd definition of nudity,

12:39 - but it is what it is.

12:43 - I would submit, just as Donohue, that we wouldn't be reading out the

12:48 - any portion language

12:51 - as the hypothetical you provided

12:56 - provides for in that below the top of the nipple.

12:59 - Any portion once there's the exposure of the top

13:04 - of the nipple downward, that would constitute nudity.

13:07 - That would be the all encompassing act

13:09 - it's dealing with the nipple as a predicate towards nudity,

13:13 - not necessarily the defining point of conduct.

13:18 - And I would analogize that to this court's decision in McCoy,

13:22 - where we're dealing with the definition of firing into a building.

13:28 - Well, if we're firing a firearm into a building,

13:32 - even if we're inside of the building,

13:34 - that language at its first blush is unambiguous.

13:38 - But in its sort of going to the application of it,

13:42 - whenever it's actually being exercised,

13:45 - the definition shows a difficulty

13:50 - in what is actually being

13:54 - prescribed, what the prohibited conduct is,

13:57 - what is not allowed to be transmitted by, in this case, minors,

14:03 - with the

14:04 - definition that seems to be adopted by the Superior Court.

14:08 - If the text is unambiguous, anything from extremely low

14:11 - cleavage to the under breast is now

14:15 - prescribed and fair game for,

14:17 - you know, criminalization.

14:23 - And I think part of this boils down your honors to

14:28 - the language of thereof and what thereof would actually be referring to whether

14:33 - we're dealing with it, referring back towards the female breast or

14:39 - whenever one does consult the dictionary definition

14:42 - of thereof of it is an alternative definition.

14:46 - The of it in this case we would maintain would be below the top of the nipple.

14:51 - The that I don't understand that

14:55 - I'm looking at the statute

14:58 - and the word thereof

15:00 - appears before any mention of nipple.

15:03 - So the only thing that thereof could be modifying would be the female breasts.

15:08 - Is there some other thing you could be modifying in that sentence?

15:19 - I would generally concede that it is referring back to the female breast.

15:25 - However, I don't think there is any contradiction between the

15:31 - requirement that any portion

15:33 - below the top of the nipple is it?

15:38 - Perhaps I misspoke earlier, but the the struggling or the ambiguity

15:42 - that I'm seeing here is what does the phrase

15:45 - the top of the nipple mean whenever we're attempting to affix a definition

15:49 - of nudity off the top of the nipple is simply

15:54 - point to it at the body, wherever it is.

15:57 - Anything below that, if it's exposed, is nudity.

16:02 - That's you know, it doesn't necessarily require

16:04 - the showing of that nipple because it's a portion of the body below.

16:08 - Or is it the top of the nipple and anything down with it

16:13 - that is prescribed that I would submit is

16:17 - whenever I'm talking about whether there's an ambiguity within the statute,

16:21 - that's the ambiguity.

16:23 - That's where it triggers the requirements of using the canons

16:26 - of statutory construction.

16:29 - Right.

16:30 - Are there any other

16:32 - questions for Mr. Bradley?

16:34 - Thank you, sir.

16:35 - We'll hear from your opposing counsel, Mr.

16:37 - Lysaght, apologize

16:41 - again, your honors, about the whole

16:44 - sickness situation.

16:45 - We understand completely. Stand back.

16:47 - May it please the court, your Honor,

16:49 - and please raise the mic because you're pretty tall.

16:53 - I know they don't touch on this a lot.

16:56 - I know you do have an opaque,

16:58 - fully opaque covering.

17:02 - I'm glad my shirt is opaque undershirts that.

17:06 - May I please the court?

17:07 - Your Honor, as Ryan likes it here on behalf of the Commonwealth

17:11 - of Pennsylvania appellate in this matter,

17:15 - I just would

17:16 - substantially rest on the briefs of advocacy as well as mine.

17:20 - And as much as I agree with Your Honor's that we don't see

17:25 - the ambiguity just in where the words come within the sentence.

17:30 - The word nipple has not been introduced into the definition.

17:34 - And so several words after any portion thereof, which

17:39 - I would think

17:39 - would relate back to female breast, not nipple.

17:43 - And I'm not trying to be Pope Pius the ninth here and say

17:48 - what are our societal mores of decency and stuff?

17:52 - Just definitionally, I think it's pretty clear here

17:56 - and it is a little more I know my camera sensational.

18:01 - I would say the underboob or the side boob than cleavage.

18:04 - I mean, cleavage is fairly seen in this day and age.

18:08 - And when we do see the underboob displayed, it's

18:12 - a fashion statement or to get the attention of something I would submit.

18:16 - And so the fact that the

18:19 - incompetent juvenile in this case had to be goaded into it,

18:23 - I don't know what other intent the juvenile questioner

18:27 - would have in goading this individual to lift her shirt up.

18:31 - So why does any of that matter?

18:34 - I mean, this statute is all we're we're not dealing

18:37 - with some mens rea a question here or constitutionality.

18:40 - That's the statute.

18:43 - Doesn't the statute just in the case?

18:45 - My argument is that it does, Your Honor, but I think that that is supported

18:50 - by the intentions that the drafters had and the way

18:53 - we read statutes protecting juveniles.

18:57 - That's the goal at the end of the day here is

18:59 - so we have to read them a little differently than other statutes

19:02 - and have that consideration at the end of the day,

19:04 - instead of the rule of law of the

19:07 - to protect the minor to the fullest extent that we can.

19:10 - And the fact that this went viral as well, it was post, it was streamed live

19:14 - and then it remained up so that other were able to much like I am viral today,

19:20 - it just goes to the sensational nature of that area.

19:23 - And so I think that is clear.

19:25 - Go to why it was prosecuted, but it has nothing to do

19:29 - with whether or not this statute is clear and unambiguous.

19:33 - Okay.

19:34 - I understand Your Honor's. Yeah.

19:36 - In other words, it sounds like this latter part of your

19:39 - argument seems to be doing is re arguing

19:43 - a debate your office might have had with defense counsel at the charging point.

19:47 - Well, we're past all that. Okay, I apologize.

19:50 - Your honors. I'm very sorry.

19:52 - And that would conclude, I

19:53 - guess, all the salient points that I have a strategy questions.

19:58 - All right. Thank you both.

19:59 - Thank you. Your honors.

20:02 - The next case is Commonwealth of Pennsylvania versus two subway.

20:06 - This case explores portions of Pennsylvania's motor vehicle code,

20:09 - which require drivers to present their licenses and registration

20:12 - cards to police officers upon demand.

20:15 - Specifically, it is the quote upon demand language that is at issue here.

20:21 - In its opinion, the Superior Court noted that there is not

20:23 - a appellate case law examining this specific language.

20:27 - This case arises from a 2021 motor vehicle stop.

20:31 - The appellant Daniel Chase subway was pulled over for speeding.

20:36 - According to the Superior Court's opinion, the officer asked him to provide

20:39 - his license, registration

20:41 - and proof of automobile insurance, and he initially refused to do so.

20:46 - He asked about his legal rights and requested a lawyer.

20:49 - The officer explained that he was not under arrest

20:51 - and was required to identify himself and provide the requested documentation.

20:56 - Approximately 25 minutes into the stop, additional officers arrived at the scene

21:01 - and approached the vehicle to to remove him from the vehicle.

21:05 - It was at that point that Mr.

21:07 - Subway produced his driver's license, registration

21:10 - and an expired insurance card.

21:13 - He was charged and later convicted of speeding,

21:16 - failing to have insurance, failing to exhibit his insurance registration

21:20 - I'm sorry, failing to exhibit his registration card on demand

21:23 - and failing to exhibit his license on demand.

21:26 - He appealed to the Superior Court and the superior court affirmed

21:30 - the Supreme Court has granted allowance of appeal

21:33 - to consider whether the evidence is sufficient to support convictions

21:37 - for failing to exhibit the license and registration on demand.

21:41 - Based on Mr. Subway's initial refusal,

21:45 - Mr. Subway has argued in his brief

21:48 - that he did eventually produce the documents and that both sections

21:51 - of the motor vehicle code give drivers additional time to produce the documents

21:56 - at the police station to avoid prosecution.

22:00 - The section regarding licenses gives individuals

22:02 - an additional 55 days after the request,

22:05 - and the section regarding registration cards

22:08 - gives them an additional five days.

22:11 - He argues that he clearly met those deadlines

22:13 - and therefore his convictions should be overturned

22:17 - to the extent the Superior Court described his behavior

22:19 - as, quote, belligerent and combative in its opinion,

22:23 - he argues the finding is not supported by the testimony.

22:27 - Appellee The Commonwealth has argued in its brief

22:30 - that while the vehicle code does not define the phrase upon demand,

22:34 - it is commonly understood to mean immediately when the request is made.

22:39 - To the extent the vehicle code provides drivers with additional time

22:42 - to present the documents at police headquarters,

22:45 - the Commonwealth argues that the language does not apply here, since Mr.

22:49 - Subway did not present

22:50 - the documents at headquarters, he eventually provided them at the scene.

22:55 - According to the Commonwealth.

22:56 - The additional time granted by the vehicle code is for drivers

23:00 - who have a valid driver's license, registration and insurance

23:04 - but forgot to carry them with them on that particular day.

23:08 - Finally, the

23:09 - Commonwealth argues that unnecessarily prolonging

23:12 - safety hazards along the roadway is against public policy

23:16 - and further supports affirming the Superior Court's decision.

23:20 - Let's watch and listen to the argument before the Pennsylvania Supreme Court

23:24 - in this case, under sections

23:28 - 1311 and 1511 of Pennsylvania's

23:31 - vehicle code, a motorist must produce his or her registration

23:36 - card and driver's license upon demand by a police officer.

23:41 - Statutory exceptions to each of these requirements exist

23:45 - in circumstance ences where the motorist produces the required documents

23:49 - at the police station within five or 15 days.

23:54 - In this case, we must determine whether the evidence was sufficient

23:57 - to convict a motorist who was stopped for a traffic infraction

24:02 - for violating Sections 13, 11 and 1511,

24:06 - where the motorist initially refused to produce that

24:10 - his driver's license and registration card, but ultimately

24:14 - produced the documents 25 minutes later, after the police

24:18 - threatened to remove him from his vehicle and take him to the police station.

24:23 - Good morning.

24:24 - Good morning, madam Chief Justice Justice's Attorney Fegley, please.

24:29 - The Court My name is Brian Ulmer.

24:31 - I represent Daniel Boyd,

24:34 - the Chief Justice, obviously accurately stated the circumstances.

24:37 - But the real points of concern here should be this.

24:42 - Number one, the Superior Court

24:44 - has acknowledged in its decision that it essentially carved out

24:50 - its own exception and has, for all intents and purposes, legislate from the bench.

24:56 - In addition, unfortunately, the factual underpinnings for that decision

25:01 - are flawed.

25:03 - The Superior Court noted

25:05 - that it was precluding Mr.

25:08 - Subway from being credited for the fact

25:12 - that he did produce his registration and his license at the scene

25:16 - because they deemed his behavior as

25:19 - belligerent and combative.

25:22 - The summary trial reflects no such thing

25:27 - as the court knows very candidly, my client made a request.

25:31 - It was improper. He wanted to be Mirandized.

25:33 - He wanted to speak to a lawyer.

25:36 - He does not have those rights.

25:38 - He understands that now.

25:40 - There's nothing in the record that reflects that, that

25:43 - he was verbally abusive to a trooper Arbogast that he cursed.

25:47 - He swore that he raised his voice.

25:50 - He may have been stubborn, he may have been obstinate,

25:53 - but there's a huge gap between

25:57 - combative and belligerent

25:58 - and and having to be convinced of something.

26:01 - Is the statute say anything about combat of a religion belligerent?

26:05 - It's that it does not from what I've seen.

26:07 - So I suppose.

26:09 - Suppose

26:11 - you take

26:13 - a check that's payable on demand to a teller

26:17 - and you present the check and demand

26:20 - payment on this demand note.

26:23 - And the teller says, I don't know.

26:25 - I don't think so.

26:26 - I'm going to talk to my lawyer. I don't know.

26:29 - Argues with you for 20 or 25 minutes, very politely.

26:32 - No combativeness, no belligerence.

26:35 - Maybe you have to go get the issuer to come in.

26:38 - Maybe you have to go get a lawyer to come in

26:42 - like there are four or five troopers involved here.

26:45 - And then 20 or 25 minutes later,

26:49 - the teller finally pays you on the check where you were.

26:52 - You paid on demand, repaid upon demand?

26:55 - I would say yes.

26:57 - And I would say it may not have been on the initial demand, but

26:59 - ultimately it was on demand.

27:02 - And particularly in this case, the fact of the matter is,

27:06 - and the Commonwealth addresses this in its brief

27:10 - and the reason is very comprehensive and very interesting

27:14 - in noting that what the defense, what the appellant has relied upon

27:19 - is the the delay, the fact that you can go in later and you can produce this.

27:25 - And the argument is, well, that was not done in this case,

27:29 - but we're we're dancing around the legal fiction.

27:32 - My client did ultimately produce the license in the registration at the scene.

27:37 - There would have been no reason for him to exercise those options.

27:42 - Well, the reason is that this again, we just had an argument

27:45 - on statutory language.

27:47 - So you can't argue that those exceptions

27:50 - apply here. Your Honor,

27:55 - that's that's a fair point.

27:57 - But they wouldn't need to apply.

27:58 - Well, okay.

27:59 - So so we don't you agree that the exceptions don't argue

28:02 - and all we're really focusing on is whether your client produced on demand?

28:06 - Well, that's part of it.

28:07 - But the concern is this if we accept the superior court's language

28:12 - as it stands, and I believe we pointed out

28:15 - this in the brief, it can lead to some absurd results.

28:19 - Which language? The belligerent thing.

28:21 - Yeah, well, I'm I'm past the belligerent thing.

28:23 - I'm I'm I'm I'm just trying to figure out how many state troopers

28:28 - have to be diverted to respond to get someone to produce

28:33 - a license and registration on demand before we consider it a refusal.

28:38 - That's a fair question. And it actually

28:42 - I wouldn't have required that much

28:45 - from what the defense understands of the law.

28:48 - Trooper Arbogast would have been within his rights

28:51 - to say at the time, okay, well, I've demanded it.

28:54 - You're not producing it now.

28:56 - We're taking it to the next step.

28:59 - He did not do that.

29:00 - He doesn't need to explain that.

29:01 - I mean, ignorance of the law is no excuse.

29:05 - Now, if if this is not demand,

29:08 - then what is demand?

29:11 - Well, in this instance,

29:14 - when it was ultimately produced, was after a demand.

29:17 - And yes, there were many demands.

29:19 - And the appellant will concede and what's interesting but

29:23 - the candor candor is due to the tribunal.

29:26 - We sort of latched on to the notion that my client was asked

29:29 - 20 times because that was testified to

29:32 - there is a reference and it could have been closer to 30. But

29:37 - the request is, sir, produce

29:39 - please produce your license, your proof of insurance and your registration.

29:43 - It's a 5/2 request.

29:44 - If it was asked 30 times, it's 150 seconds.

29:48 - We're talking about a matter of a few minutes.

29:50 - So I'm not sure.

29:51 - I mean, I'm not sure I get your your argument.

29:53 - And, you know, we have a body of law.

29:56 - It's sort of a separate law about the submitting to chemical testing,

29:59 - the implied consent, the law, maybe you're familiar with it.

30:02 - Anything less than an unequivocal

30:05 - acceptance or agreement to

30:09 - to the request for chemical testing is considered as a matter of law refusal.

30:14 - Why why shouldn't we basically

30:17 - bring that principle forward and say once a police officer demands that you produce

30:23 - anything less than an unequivocal production

30:26 - of the materials requested by the police officer is a refusal.

30:30 - I think the legislature needs to tell us that.

30:32 - I think they absolutely can, but they did not in this case.

30:36 - And it was what more could they say than upon demand?

30:40 - Frankly, they could set a specific time limit

30:42 - and more to the point, they could define what is combative or belligerent.

30:46 - To say that you've disqualified again,

30:49 - you keep going back to the combative or belligerent saying, I think I think

30:52 - your argument is good on that, but it doesn't necessarily mean you win.

30:56 - So that's why I'm kind of moving you toward the point,

30:59 - looking purely at the language of the statute.

31:02 - How can you argue when and maybe, maybe you do have to incorporate

31:06 - the exceptions now that you've said that the statute

31:08 - that General Assembly could have said something

31:11 - the General Assembly did in the sense that your client,

31:14 - they did give your client an out, notwithstanding his belligerent ness,

31:18 - notwithstanding the 30 some requests, notwithstanding any of that,

31:22 - the General Assembly gave your client the out, which is

31:26 - he could have gone to the police officer headquarters

31:28 - and submitted it the next day or going to the issuing authority.

31:32 - He had that out.

31:33 - What I see you trying to do is to create a third out, which is basically

31:37 - if after upon demand, there is a refusal so long as the police officers

31:42 - continue to make a request, and so long as he is still on the site and hasn't

31:45 - been brought in yet and hasn't been cited, he can he can change course,

31:50 - but the General Assembly didn't provide that as an exception.

31:54 - That's true.

31:55 - And one of the difficulties here

31:57 - is frankly determining when there is a true refusal.

32:01 - If you are like some of us and I say us for a reason

32:04 - and you keep less than a tidy car, he has these documents

32:07 - certainly should be on your person or in your glove compartment.

32:10 - But if you're scrambling around looking,

32:13 - you know, by what we've read here, at a certain point,

32:16 - an officer or a trooper or a deputy could say, no, you're done.

32:19 - You change that.

32:20 - You're changing the facts.

32:21 - Counsel, there's no there's no evidence in the record that he couldn't

32:25 - find the insurance card or he couldn't find his license and registration.

32:28 - He was having difficulty.

32:30 - I mean, if that was the case, I doubt they would have called for police backup.

32:34 - So I'm

32:35 - not sure why the let's focus on the facts in this case and figure out

32:39 - from a statutory construction perspective whether your client produced on demand.

32:44 - And I'm not trying to change the facts of the case.

32:46 - My intention was to to draw that as a point of comparison

32:50 - in this instance, I mean, candidly, because it doesn't say

32:55 - how many times that can be demanded, it was produced on scene.

32:59 - And I do see the difficulty in the facts.

33:03 - And obviously when you hear multiple police

33:07 - were called in, when you hear that this was a 25 minutes

33:11 - stop, I can understand why that's disarming.

33:15 - But the fact of the matter is,

33:16 - is that ultimately my client did produce them at the scene.

33:20 - It may have required a number of demands, but he did produce them upon demand.

33:26 - And frankly, it's something that is a little vague in the statute.

33:30 - I doesn't say first demand counsel of

33:36 - it seems to me that

33:37 - your client did refuse to produce

33:42 - his license.

33:44 - He said, I want a lawyer.

33:47 - I want bear with me at that.

33:51 - I mean, at that juncture,

33:54 - what's supposed to happen?

33:57 - Well, at that juncture and unfortunately, you know, it is regrettable,

34:00 - but he refused.

34:03 - What I would offer is that, in fact, he did not refuse.

34:06 - He did not say, I'm not going to turn this over.

34:09 - He said, I want to talk with somebody else.

34:11 - You're better off if you refused.

34:13 - Because if I read as I read the statute, if he

34:16 - if he refuses, it doesn't say he can't find it.

34:19 - I don't have it with me. It may be somewhere else.

34:21 - This statute doesn't call for any excuses for why you aren't producing on demand.

34:28 - As I read it, you could just refuse.

34:31 - And then you have 15 days to come up

34:34 - with the license and information at the police station

34:39 - or the other designated location.

34:44 - Or am I wrong?

34:45 - Well, where I respectfully disagree is the fact

34:49 - that essentially he had to be convinced that you had to produce it.

34:53 - The scene wasn't initially or feasible, so I fall back on what I recall.

34:59 - The record was not I won't give this to you,

35:01 - but I want to talk to somebody first.

35:03 - He was wrong in doing that.

35:04 - So I don't think it's completely fair

35:07 - to to call it a refusal because he's not saying, I'm not doing this, frankly.

35:11 - I think if he if the plea if the police officer at the scene

35:16 - would have said he's refusing to produce, cite them

35:20 - and then

35:21 - within 15 days, if he shows up at the police station

35:25 - or the other authorized location, the exception in place is is it

35:29 - isn't that with the CAC says that's what the statute says.

35:34 - But as indicated, because this is such an unusual situation,

35:38 - we have a production at the scene

35:40 - because the troopers wouldn't take no for an answer.

35:44 - And that's okay.

35:45 - I mean, I'm not suggesting that they had to take

35:47 - no for an answer, but they wouldn't take no for an answer.

35:51 - He said, I, I wouldn't.

35:53 - I want my Miranda rights.

35:54 - I want a lawyer.

35:55 - I mean, that's a refusal

35:59 - instead of citing them,

36:02 - which they could have

36:04 - at the roadside, that the troopers to the scene over the course of 20 minutes.

36:09 - I beg your pardon. Sorry for interrupting.

36:11 - I understand

36:13 - the interpretation, but without the appellant saying,

36:17 - no, I won't do this, I would respectfully disagree

36:21 - that it wasn't a straight refusal.

36:23 - Okay. Okay, I think we. Can I ask why? Sure.

36:26 - I can understand your argument, counsel.

36:29 - If you prevailed here, would the precedent

36:35 - establish that

36:39 - law enforcement officers would have to explain

36:42 - the crimes code provisions as they interpret them

36:45 - of when an arrest or a detainee inquires

36:50 - or questions whether the enforcement actions are appropriate?

36:56 - I don't believe it does that.

36:57 - Therefore, Your Honor, I think if the assembly prevails here,

37:02 - what happens is that, number one,

37:07 - perhaps the legislature will be persuaded to draft

37:11 - a modification to the statutes that

37:16 - preclude folks that they deem

37:17 - is belligerent or combative.

37:21 - I think it's likely that that future troopers feature officers

37:26 - simply say, I'm going to designate this as a refusal.

37:30 - If you don't produce, it's a matter of a few seconds of dialog.

37:33 - You know that that's interesting.

37:36 - As Justice Donahue asked you this, you know,

37:39 - police officers nowadays are criticized

37:43 - constantly for being quick to cite, quick to do this, quick to do that.

37:47 - And here you had a police officer that had a refusal

37:51 - and tried to convince

37:54 - the guy to comply with the request,

37:57 - gave him numerous opportunities to comply with the request.

38:00 - And you want us to do a construction that basically says

38:04 - as long as the police officer is continuing to be courteous,

38:08 - the the

38:10 - driver can continue to refuse the request and only upon penalty

38:15 - of being removed and taken for identification to a police department

38:20 - then produces everything's fine.

38:24 - I don't think we should be penalizing our police officers for trying to

38:30 - convince someone to be compliant.

38:34 - Your Honor, let me say this, and I hope that this is reflected

38:37 - in my discussion, both in the brief and in person.

38:41 - It is not my purpose to bury the police here today.

38:44 - I know Tyler Arbogast.

38:46 - He's a fine young man. He's a fine trooper.

38:48 - I disagree with how this case came out.

38:53 - We're not asking for the trooper for police to be banned in this.

38:59 - And, you know, one of the points that counsel made in his brief

39:05 - was that perhaps the side of the road was not the place to debate the finer

39:09 - points of the Bill of Rights.

39:10 - Well,

39:11 - I think it's always a good time to debate the finer points of the Bill of Rights.

39:14 - I understand that that location may not have been the best.

39:18 - I think what happens ultimately is it will be a case by case situation.

39:22 - So many of these are one of the issues that arose with safety, and certainly

39:26 - that should be a paramount concern

39:28 - because there are times in places

39:29 - where you can be off the side of the road, there's barely any.

39:33 - Anybody around there can be places where it's fairly heavily traffic.

39:36 - I think it'll be situational.

39:38 - I think it will have to determine, you know, as this goes

39:42 - on, how much time can we spend on it?

39:44 - How much time should we spend on it?

39:46 - But if the Superior Court's decision is left to stand,

39:51 - I frankly, I think we put them in a bad spot as well,

39:54 - because it turns into individual

39:57 - officers having to justify what they deem

40:01 - is intelligent design ahead.

40:04 - You remind me what happened to convince your client

40:08 - to eventually produce the information

40:11 - they were coming in the car after

40:14 - tax to make

40:16 - that would be persuasive.

40:20 - Any other questions?

40:21 - Thank you. Mr.

40:21 - O'Mara will hear from your opposing counsel.

40:24 - Mr. Fegley.

40:30 - Morning, Madam Chief. Justice. Justice

40:33 - John Fegley in behalf of the Commonwealth, evidence

40:36 - here to be insufficient to support the convictions of 1511 and 1311,

40:41 - you would have to read a driver must produce their license and registration

40:44 - at any time within 15 or five days after the request of the officer.

40:48 - That's just not what it reads.

40:49 - It reads upon demand.

40:51 - And if you fail to produce upon demand, you come to the station

40:55 - or you come to the magistrate's office to reduce it within a time period to avoid

41:01 - it does not allow

41:03 - for a driver to stand on the roadside, argue,

41:06 - haggle, needlessly prolong a stop

41:09 - that puts the trooper in himself and passing motorists in danger.

41:14 - Police officers get struck by passing cars, issuing tickets.

41:17 - It's sad. It's unfortunate.

41:18 - There are accidents caused.

41:20 - Too often when you're pulled over,

41:21 - there's not a good place to fully vacate the road blocks, traffic.

41:25 - These are not interactions that the legislature intends to extend,

41:29 - and that's why they chose the term on demand or upon demand

41:34 - justice worked.

41:34 - Already took one of my

41:37 - highlights of uses of on demand.

41:40 - So I'll move on to my second one is if I use Netflix or Hulu, my on demand

41:44 - streaming service and I log in to play a video and it makes me

41:47 - bring over three additional friends and wait 25 minutes for the video to play.

41:50 - I'm probably not going to continue paying for that service

41:53 - that's not what we understand on demand.

41:55 - To me,

41:56 - it means at the time of the request, it doesn't

41:59 - mean 20 minutes later when there's three officers

42:02 - and the supervising corporal comes with weapons drawn.

42:05 - It's been admitted. It's persuasive.

42:07 - I would say it's even precedential authority at that point.

42:09 - I would produce my documents once all those officers are on scene,

42:13 - the counsel at some point, if

42:18 - the police officer asks for

42:19 - the information and it's not produced, isn't that a refusal?

42:23 - Yes, they have refused.

42:25 - So there was never a refusal here.

42:27 - I believe the testimony bore out that originally

42:29 - he asked to speak with an attorney or call friends,

42:31 - and then there was ultimate testimony with the trooper,

42:33 - said, I asked you at least 20 times and you said no.

42:37 - So there was also a flat refusal.

42:38 - Yeah, but I mean, if someone demands the information and it's not produced,

42:42 - isn't that a refusal? Yes.

42:44 - Well, period. I mean, forget about what was said.

42:46 - I mean, I'm just I'm just trying to grapple with

42:53 - the extent to which this situation blew up.

42:58 - So I believe in this situation.

43:02 - If the officer is able to effectively identify who the driver is

43:07 - so they can issue the citation and know where to send it

43:09 - and have the court paperwork go,

43:11 - they would have the option to issue the citation and end the stop

43:14 - and then charge them with the extra charges.

43:17 - If they can't identify the individual

43:19 - to say who's who's getting the citation where the paperwork's going,

43:22 - they're stuck under the vehicle code to arrest them

43:25 - and take them to identify them, unfortunately.

43:27 - So in this situation,

43:28 - they couldn't otherwise identify them to just issue a citation.

43:32 - I don't believe the record is clear on whether that was capable of not,

43:35 - in the absence of facts, to say otherwise

43:36 - that I would have to assume that's why they had to continue it

43:39 - and that's why they chose ultimately to arrest him before his

43:41 - he succumbed to providing the documents.

43:44 - But do you have further argument, sir?

43:48 - I have no further argument.

43:49 - If you have any further questions on their team, I do have a question.

43:53 - Can you be arrested for not producing the documents? Yes.

43:56 - Under 6304 of the vehicle code of the Pennsylvania State

44:01 - Police are authorized to make arrests for any violation of Title 75.

44:06 - And then the exception kicks in if you go to the station

44:10 - in five days, well, it would kick in for section 15, 11 and 1311.

44:15 - It would kick in for the other citations

44:16 - or other potential crimes and the crimes could be charged with.

44:20 - And what were they in this case?

44:22 - It was that he was charged with here.

44:25 - He was charged with speeding

44:26 - and also failure to have financial responsibilities.

44:30 - Okay. So he was arrested for that? Yes.

44:32 - Not for not producing the information he was ultimately cited for all of them.

44:38 - The 15, 11 and 1311 are the only questions this court granted, sir,

44:43 - but he was arrested for failure to produce this information.

44:46 - He was arrested because of the predicate.

44:49 - Yes. Stop.

44:50 - Yes. Okay.

44:53 - Thank you.

44:54 - Any other questions for Mr. Fegley?

44:57 - All right.

44:57 - Thank you both.

45:00 - And next case you're going to hear

45:01 - argument in is Pennsylvania Professional Liability Joint Underwriting Association

45:06 - versus governor of the Commonwealth of Pennsylvania,

45:08 - which concerns a certified question from the U.S.

45:10 - Court of Appeals for the Third Circuit.

45:12 - In the Pennsylvania Professional Liability Joint

45:15 - Underwriting Association is a nonprofit association.

45:18 - The General Assembly conceived the association in 1975

45:22 - in response to declining availability of medical malpractise insurance

45:26 - in Pennsylvania

45:27 - through the CARE Act, the General Assembly tasked the association

45:30 - to offer medical professional liability insurance to health care providers.

45:34 - And these

45:35 - they cannot conveniently obtain it through ordinary methods at ordinary

45:39 - market rates.

45:40 - Consistent with that legislative mandate, the association writes insurance

45:44 - policies directly to its insureds who pay the premiums directly to the association.

45:50 - The association is funded exclusively by policyholder premiums

45:53 - and investment income, which it holds in private accounts in its own name.

45:57 - Over the last several years, the general Assembly has attempted

46:00 - to access the Association's assets, namely its

46:03 - sizable surplus account, through a series of legislative enactments.

46:07 - Act 44 of 2017 cleared the Association to instrumentality of the Commonwealth

46:12 - and ordered the Association, under the threat of abolishment,

46:16 - to pay a $200 million, to pay $200 million

46:19 - to State Treasurer for deposit into the state's general fund.

46:23 - Next came Act 41 of 2018, which attempted to fold

46:27 - the association into the Pennsylvania Insurance Department,

46:31 - shift control of the association to a board of political appointees,

46:34 - oust the Association President and mandate the transfer of all the Association

46:39 - assets to the insurance department within 30 days.

46:42 - Act 15 of 2019, enacted the following year, purports

46:46 - to fund the association's operating budget with State Appropriations

46:50 - and resource IT with state attorneys and office space.

46:53 - In exchange for the Association's compliance with the various

46:56 - Oversight and Accountability Statutes, the Association responded

47:00 - to each enactment with a lawsuit raising constitutional challenges.

47:04 - And the Honorable Christopher

47:05 - C Connor, the US District Court for the Middle District, Pennsylvania,

47:09 - enjoined each enactment, at least in part in three separate decisions.

47:13 - In his first decision, Judge Connor issued a permanent

47:16 - injunction prohibiting the enforcement of Act 44,

47:19 - finding that the association is a private entity,

47:22 - its funds are private property,

47:23 - and the takings clause of the Fifth Amendment to the US Constitution prohibits

47:27 - at 44th attempt to take those funds without just compensation.

47:31 - Judge Connor enjoined Act 41, his second decision

47:34 - concluding that the legislation was attempt to do indirectly what

47:38 - the Journal said he could not do directly take the association's funds.

47:43 - And his third decision, Judge Connor personally enjoined Act 15 insofar

47:47 - as it attempted to force the association to operate using Commonwealth

47:51 - funding and to litigate using Commonwealth lawyers.

47:54 - However, Judge Connor did not enjoin provisions.

47:57 - Act 15 that in his view,

47:59 - constituted an appropriate exercise of state authority over a private entity

48:03 - charged with carrying out a critical public health mission.

48:06 - The Third Circuit consolidated the appeals of all three decisions

48:10 - and then petitioned the PENNSBURY Supreme Court for certification.

48:13 - The following question of state law quote

48:16 - Under Pennsylvania law is the Commonwealth's Joint

48:20 - Underwriting Association a public or private entity?

48:23 - Close quote.

48:24 - The Pennsbury Supreme Court

48:25 - granted the petition, accepted the certified question for review.

48:29 - The association argues in its briefs that it is a private entity produces

48:33 - because it is not controlled by the government, is not subject to transparent

48:38 - and other statutory obligations imposed on governmental entities,

48:42 - lacks government like powers such as taxation or eminent domain.

48:46 - It has never received government funding.

48:48 - The governor of Pennsylvania and the General Assembly take the opposite position.

48:53 - The governor

48:53 - contends that the association is a public enemy

48:56 - because it was created by statute in support of a larger public regulatory

49:00 - regime, performs public duties under the authority of and strictly

49:04 - according to that statute and exists only by the grace of that statute.

49:09 - The General Assembly raises similar arguments in its brief.

49:12 - Let's watch and listen to the oral argument in Pennsylvania.

49:15 - Professional liability Joint Underwriting Association

49:18 - versus the Governor of the Commonwealth of Pennsylvania.

49:21 - In 1975, the General Assembly established

49:25 - the Pennsylvania liability Joint Underwriting Association, the J.

49:30 - A, which offers medical professional liability insurance

49:34 - to health care providers and other entities which cannot obtain

49:39 - such insurance through ordinary methods at non excessive rates.

49:43 - Pursuant to a petition for certification filed

49:46 - by the United States Court of Appeals for the Third Circuit,

49:51 - we are asked to determine whether the j

49:54 - u a is a public or private entity.

49:58 - Good morning.

49:59 - Good morning. And thank you, Chief Justice Todd.

50:02 - My name is Kevin McEwen.

50:03 - I represent the JUA

50:07 - and the context of the Third

50:10 - Circuit's question to this court

50:13 - is this state's attempts to take aways surplus stock

50:17 - based on the claim that way as an arm of the state, and therefore

50:20 - the surplus, as Jay is, is the state's money.

50:24 - The answer to the question hinges on whether the court applies

50:28 - the multifactor test that the court has used in similar situations.

50:34 - Under that multi-factor test, our position is

50:37 - the jury is clearly a private entity.

50:41 - The governor and the General Assembly on the other hand, argue

50:44 - that there should be a simplistic test used

50:47 - and that that test should be simply whether the General Assembly created

50:51 - jury by statute, and if it did, they argue

50:55 - Jay was a state creature and

50:58 - thus public, and so that the state can take aways funds.

51:02 - Now, Mr.

51:03 - King, can I just jump in here because I think you can help me on this.

51:07 - I know we took this question from the Third Circuit.

51:11 - I get it.

51:11 - I don't think we had to. We did.

51:14 - I'm having a problem with the question,

51:18 - which is seems very generic.

51:21 - Is the jury public and private or private?

51:23 - Under Pennsylvania law?

51:27 - I'm not sure we have any

51:32 - that we distinguish between

51:33 - public and private entities under Pennsylvania law.

51:36 - And it's curious to me that the issue in front of the Third Circuit,

51:39 - in front of the district courts

51:40 - are all about the federal constitutional and the takings aspects

51:44 - and whether the jury has some private constitutional rights

51:48 - that are that there are to non-governmental entities.

51:52 - Isn't that a federal question

51:54 - as to whether an entity like

51:57 - the jury has federal constitutional rights?

52:01 - And if so, why should we be answering this question?

52:05 - Your Honor, I agree with you that the question is phrased

52:09 - in a generic fashion.

52:11 - I think the reason, although this is just speculation,

52:14 - is that the question that the main question

52:18 - before the Third Circuit is for takings purposes,

52:21 - whether juries, private property has been taken.

52:24 - And I surmise that the Third Circuit has asked

52:29 - this court the question is January private or public in order

52:33 - to facilitate its resolution of the issue of whether jury has private property.

52:38 - But beyond that, because I can tell, I can sort of opine on whether

52:44 - it's a Commonwealth agency, I can opine on whether it's an arm of the Commonwealth.

52:49 - I can opine on whether it's a statutory facility.

52:52 - I can opine on whether it's an insurance risk pool.

52:54 - I can opine on a lot of things, but whether it's public or private

52:58 - doesn't really tell me anything about the country.

53:00 - The law, does it? Well, it may, Your Honor.

53:02 - I mean, we cite the Greenfield case in our in our reply brief.

53:06 - It's the case in which Judge Rogers,

53:09 - for the On Bog Commonwealth Court in the seventies decided that Paga

53:14 - was not subject to the Commonwealth Court's

53:16 - original jurisdiction because it wasn't a Commonwealth agency doing that.

53:20 - Let's see. No, I understand. I understand.

53:22 - I can tell you whether it's Commonwealth agents and in our briefing

53:25 - we've we've laid out the various contexts in which this issue has come up.

53:31 - They're ones that you're all familiar with immunity, taxation.

53:35 - But in other words, there's the phraseology public versus private.

53:39 - Well well, Judge Rogers in that case did use the phrase private.

53:43 - Yes. That's all the factors that we say

53:46 - are the factors in the test that should be used here.

53:50 - And he concluded that

53:53 - figure was private,

53:55 - or did they conclude that Pruitt-Igoe was not a commonwealth?

53:58 - Well, he the holding of the case is that figure is not a commonwealth agency

54:02 - and therefore the Commonwealth Court doesn't have the original jurisdiction.

54:05 - But so is that how we should look at it then?

54:07 - Is that the question then?

54:08 - Is the jury a Commonwealth agency?

54:11 - And if we say Third Circuit, it's not a Commonwealth agency,

54:15 - that would be enough.

54:16 - Or do we actually have to use do we have to use a binary choice, public, private?

54:22 - Well, I think, Your Honor, that

54:27 - you will answer the Third

54:29 - Circuit's question in the way that this court deems appropriate.

54:32 - But I would suggest that if the third, third Circuit

54:36 - phrased this question in this manner, it had some reason for doing so.

54:40 - And we as a court will either answer it or we will respond

54:44 - that we cannot answer it.

54:45 - As phrased, but it simply wants to know

54:49 - it's not going into the nuances of

54:52 - public agency and all of the other nuances

54:55 - that our courts, our court has gone into over the years.

54:58 - It's asking a simple question.

55:01 - And so we can either answer it or we cannot.

55:04 - But in answering the question, I think we have to go into some of the

55:10 - some of the inquiries that that you've addressed and that you will address.

55:13 - And not one is is the jury a creature of our state statutes?

55:21 - Yes, absolutely.

55:23 - Okay. Yeah.

55:24 - And given that, I would disagree only on this point, Your Honor.

55:28 - That is,

55:30 - my colleagues

55:32 - from the state are arguing this.

55:36 - I'll call it in, quote, state, creature theory.

55:39 - And so the creature theory, briefly,

55:42 - is that the Commonwealth or the legislature

55:46 - creates all kinds of creatures.

55:49 - Then they give you citations.

55:50 - Every one of those citations is one that you would recognize

55:54 - as a standard political subdivision or a Commonwealth agency.

55:58 - They never get into

56:02 - the kind of situation that we have here with you way, I understand.

56:06 - And if we get out of the creature language, we can just simply agree.

56:11 - The jury was created by a statute jury action of our commonwealth.

56:16 - Exactly.

56:17 - And then we could further.

56:18 - Excuse me,

56:19 - we could further agree, couldn't we, that as such it could be repealed.

56:23 - Yeah.

56:23 - Took my question by the long law. Yes.

56:27 - We don't disagree that

56:30 - the General Assembly could repeal

56:34 - the statute that in which jury

56:36 - has been entrusted with this gone.

56:40 - Well, I don't know about that.

56:41 - I would say that when the statute is repealed, you at least have the question,

56:46 - does there need to be dissolution of the association that was created?

56:50 - And then I would further add that just

56:54 - dissolving the association doesn't

56:57 - mean that the Commonwealth gets the money, which is ultimately the question.

57:01 - We're not reaching that question right now.

57:03 - I was just trying to explore whether this helps us answer.

57:07 - The third Circuit's question is it a private or public entity?

57:11 - But counsel, certainly

57:13 - your opposing counsel is arguing

57:17 - that it is defining

57:19 - if this is indeed a governmental agency of sorts

57:23 - or it is a statutory creature, then the moneys that it holds

57:29 - are the property of the Commonwealth of Pennsylvania.

57:33 - I mean, that's ultimately why they're pursuing this, is it not?

57:40 - Yes, it is, Your Honor.

57:41 - That I mean.

57:42 - That's correct.

57:43 - Because, I mean, in follow up to just

57:47 - justice, broad sense question,

57:50 - can you have a statutory entity

57:54 - that holds private funds?

57:57 - Well, in the case of Georgia, it absolutely is true.

58:02 - I mean, as a matter of fact, they've they've held private funds

58:06 - in their account, separate and apart from the state

58:10 - with no state supervision other than what the insurance commissioner supervises.

58:15 - All insurance companies for 40 plus years.

58:19 - And we could answer the question as posed to us

58:23 - without offering any help at all to the Third Circuit.

58:27 - In answering the ultimate question in this case,

58:31 - it might be the shortest opinion we've ever given.

58:35 - Yes, it is.

58:36 - No, it's not.

58:39 - Go ahead.

58:40 - Just following the the questioning of the chief justice,

58:44 - the jury is established by what, sections?

58:46 - 731 of care.

58:48 - Yes. Since it was established, what would preclude

58:52 - the General Assembly from amending that statute

58:57 - requiring all its surplus to be paid to the General Fund?

59:01 - Your Honor, I would say that

59:05 - the major roadblock to that action is that

59:10 - in this context, you

59:11 - have to accept the state of play.

59:15 - As of the time the conflict arose.

59:17 - And what we have here is Janeway,

59:21 - existing for 40 plus years.

59:25 - Everybody who dealt with Georgia, including the insurance department

59:28 - and in its actions, treated it as a private entity.

59:33 - The legislature decided in 2016

59:37 - the jury had a very attractive surplus that it wanted to take.

59:41 - And so it passed the statute saying, guess what, Janeway is a Commonwealth

59:46 - instrumentality and it's the state so we can take its money.

59:51 - But that kind of,

59:54 - I'll call it subsequent legislative interpretation of prior

59:59 - 233 legislative actions is something that this court has called

01:00 - 08.972 oxymoronic, you know, picking up on a Justice Scalia opinion.

01:00 - 13.109 And it it's not the way

01:00 - 16.446 that you use subsequent statutes.

01:00 - 18.781 Well, Counselor, let me follow up with this.

01:00 - 22.619 The board is the governor.

01:00 - 23.786 I mean, Spire apologized.

01:00 - 27.156 The commissioner of insurance has the ability to appoint

01:00 - 29.292 four members to the board, correct?

01:00 - 31.327 No longer, Your Honor.

01:00 - 36.332 And as originally formed, I mean, your your close is as originally formulated.

01:00 - 39.335 There were 12 members on Janeway's board.

01:00 - 45.808 This was pursuant to a plan the jury proposed to the commissioner

01:00 - 48.211 in the six weeks after

01:00 - 51.481 the original cap fund statute was enacted,

01:00 - 55.151 and it proposed nine insurance

01:00 - 58.688 company members and three public members.

01:00 - 02.325 The three public members would be appointed by the insurance

01:01 - 06.062 commissioner, but the board has always been dominated

01:01 - 09.832 by the private

01:01 - 12.035 insurance company members of Janeway.

01:01 - 17.573 So, you know, for example, this court's decision in the Penn State

01:01 - 21.711 versus Derry Township case says, well, that answers the question

01:01 - 24.514 who in fact, it's the

01:01 - 27.984 first of the five factors we want this court to be looking at.

01:01 - 31.854 The question is, who appoints the board? Who?

01:01 - 33.589 Who controls this entity?

01:01 - 37.760 And in this situation, there is no doubt

01:01 - 42.765 that Janeway's board controls Janeway, subject

01:01 - 45.368 to the supervision of the insurance

01:01 - 48.905 that the Insurance Commissioner provides.

01:01 - 53.309 Every single insurance company in the state or it's funded

01:01 - 57.246 by entirely private premiums, right?

01:01 - 59.582 Yes, Your Honor, which is the fourth factor

01:01 - 03.553 we want the court to look at to explain to me the relevance of that factor.

01:02 - 06.456 Well, in every case in which,

01:02 - 10.226 you know, sort of a reflexive reaction, I think when you

01:02 - 15.264 when you go to take somebody's money, you find out first where that money from

01:02 - 19.102 and did the person who wants to take it put it there in the first place or in

01:02 - 22.038 some way fund it. And so in

01:02 - 25.541 and I'll just

01:02 - 28.911 in in

01:02 - 33.049 the cases we cite in our Sphere, Drake, that this involved the

01:02 - 37.053 Philadelphia Facilities Management Corporation,

01:02 - 39.422 which was the alter ego of the Philadelphia gasworks.

01:02 - 41.691 And the corporation set up

01:02 - 45.461 this court said, where all you know, that found very important

01:02 - 49.198 factor to be of the funds were derived from the city of Philadelphia.

01:02 - 53.402 And so that was one of the things the court considered

01:02 - 57.440 when it when it came to deciding that it was entitled to immunity

01:02 - 00.710 in the Sneed case, which is the SPCA case.

01:03 - 04.180 The court said, well, you know, they get some funds

01:03 - 07.183 from this from the state, but it's mostly funded from other sources.

01:03 - 09.252 So we're going to consider that.

01:03 - 11.888 We're going to put that on the private side of the ledger.

01:03 - 15.858 And the court ultimately concluded here, there's never been a penny

01:03 - 18.895 not a penny from the public fisc.

01:03 - 22.198 J Does it make a difference

01:03 - 27.637 that the clients that came upon which you've made your money were clients

01:03 - 31.941 that were sent to you under the legislative statute?

01:03 - 35.111 Well, Your Honor, I don't think that it does.

01:03 - 40.683 The state uses coercion in many, many, many instances

01:03 - 45.721 to coerce private actors to do things that help the government.

01:03 - 47.590 That wasn't really the point of my question.

01:03 - 49.425 I thought and maybe I'm wrong.

01:03 - 52.895 I thought that the under the statute that you were created

01:03 - 58.034 so that medical malpractise providers in the state who couldn't get insurance

01:03 - 03.739 coverage from other private entities could go to the jury.

01:04 - 07.810 And you, by statute was required to provide them with malpractise

01:04 - 11.447 insurance to continue their business within the Commonwealth.

01:04 - 13.282 That is true, Your Honor.

01:04 - 16.485 Yeah, and that's what I when I was saying,

01:04 - 19.622 basically your client base

01:04 - 24.060 came through the government statute.

01:04 - 30.733 Well that statute that is the catch on statute required all physicians

01:04 - 34.470 to have medical malpractise insurance for the first time in Pennsylvania.

01:04 - 37.940 That statute also created the CAP Fund,

01:04 - 41.811 which was an executive agency in the Commonwealth.

01:04 - 44.113 And that statute also created or

01:04 - 48.251 created the possibility of an association

01:04 - 52.255 with the statute actually says that that I'm referring

01:04 - 53.522 now to the catch fund statute.

01:04 - 57.193 What it says is the insurance commissioner shall.

01:04 - 59.762 Let me just get the exact words.

01:04 - 02.431 Well, and I'm glad you bring that, because that was one of my questions.

01:05 - 06.035 I think in response to justice, Daugherty's question about whether the

01:05 - 09.272 whether the job was created by statute, you said, yes,

01:05 - 13.109 the reality of it is what you're to is the CAP Fund Act

01:05 - 18.247 authorized the insurance commissioner to approve a joint

01:05 - 23.386 underwriting association in lieu of creating an actual state run

01:05 - 26.756 sort of insurer of last resort.

01:05 - 27.790 That's exactly right.

01:05 - 28.024 Yeah.

01:05 - 32.295 So so there's no statute that the genesis of The Jay Way

01:05 - 34.897 was not from the legislature other than saying

01:05 - 39.735 the insurance commissioner could approve a joint underwriting association.

01:05 - 40.336 That's right.

01:05 - 44.040 And and so what what exactly what the statute says is

01:05 - 47.310 the commissioner shall establish and implement,

01:05 - 51.514 which to your point, this is insurance commissioner taking it all in house.

01:05 - 52.114 Mm hmm.

01:05 - 54.884 Okay. Like Kathleen. Right, exactly.

01:05 - 56.252 Like the cat fund.

01:05 - 58.154 Or approve and supervise.

01:05 - 00.523 And so a plan.

01:06 - 03.359 So the statutes, key word is a plan.

01:06 - 07.663 The plan can be either administered by the insurance department

01:06 - 13.436 or it can be given to a joint underwriting association.

01:06 - 17.940 And what happened here was the statute was passed in the end of October, 1975,

01:06 - 21.844 six weeks later, an ad hoc group of insurers

01:06 - 25.915 came to the insurance commissioner with a plan, saying, we'll be the Joint

01:06 - 29.552 Underwriting Association and we'll here's our plan.

01:06 - 34.090 The statute says we're supposed to agree how to come up with a plan

01:06 - 36.792 and we've come up with one. Here it is. Here's our board.

01:06 - 38.527 Here's everything we want to do.

01:06 - 40.629 And the insurance commissioner two weeks later approved it.

01:06 - 42.164 And you didn't have to do that?

01:06 - 44.333 No, no. That was totally voluntary.

01:06 - 47.003 We also filed a5a1c6 application

01:06 - 50.506 with very soon as soon as the insurance commissioner approved

01:06 - 54.710 that set up.

01:06 - 59.281 And, you know, Fred Anton, who was the first chair of

01:07 - 06.088 J Ways Board, signed off on that 501c6 application.

01:07 - 10.359 And what he said there was that the reason the insurers wanted to do

01:07 - 13.462 this was to protect the reputation of the insurance industry,

01:07 - 16.098 and I'll refer you in the reproduced record.

01:07 - 20.936 I won't read the whole thing, but at 769 to 770 of the reproduced record,

01:07 - 25.841 you will see Fred Anton's description of why the insurance

01:07 - 30.212 industry wanted to set up this plan.

01:07 - 35.251 He he starts out by the insurance industry has been criticized recently

01:07 - 37.053 by the public because certain companies

01:07 - 40.389 have been canceling or refusing to rewrite medical malpractise insurance.

01:07 - 44.427 The association's activities writing such insurance will promote

01:07 - 46.529 the common business interests of its members

01:07 - 49.231 by providing malpractise insurance to health care providers

01:07 - 51.901 who would normally be unable to obtain such insurance.

01:07 - 54.804 Thereby minimizing public criticism of the industry.

01:07 - 58.107 So, you know, we've heard

01:07 - 01.911 from the General Assembly and

01:08 - 04.980 the governor that there's no purpose

01:08 - 08.017 to jury other than what the state has mandated.

01:08 - 09.852 Well, you know, that's not true.

01:08 - 14.290 That's not true from the genesis.

01:08 - 16.792 Back on the.

01:08 - 17.293 Yeah.

01:08 - 21.030 I'm not sure that I finished answering your question, Your Honor.

01:08 - 26.335 Is there another set of malpractise insurance

01:08 - 31.006 or medical malpractise carriers that come to your organization

01:08 - 34.877 to buy insurance other than those that can't get it?

01:08 - 39.048 I mean, do you have a group of people that just say, we want genuine insurance

01:08 - 41.617 even though we can get it for my I don't even know if this

01:08 - 43.719 was actual policy.

01:08 - 45.888 I didn't mean to interrupt you.

01:08 - 47.056 You finish your question.

01:08 - 47.690 Yeah. Okay.

01:08 - 50.593 So Jay's actual policy is to take all comers.

01:08 - 54.263 They don't require somebody to say they can't get it elsewhere.

01:08 - 57.032 We got denied by this company or denied by that company.

01:08 - 58.334 The whole purpose of

01:08 - 01.770 Jay's mission to provide insurance

01:09 - 04.540 to those who can't conveniently get it, that's what the statute says.

01:09 - 06.442 And so that's what they do.

01:09 - 11.180 What would be your percentage of business that comes from people

01:09 - 14.116 who can get it from another provider but chooses to you?

01:09 - 15.784 I don't think

01:09 - 18.287 Jay even knows that, Your Honor,

01:09 - 21.290 because they don't ask, as I understand it.

01:09 - 24.593 I mean, they they if somebody comes to Jay Way and wants to be written,

01:09 - 31.200 they they get a quote and they compare the quote to other potential carriers.

01:09 - 33.002 And it's Jay way.

01:09 - 34.403 Jay Way might be a better price.

01:09 - 36.739 It might be a worse price.

01:09 - 39.408 And there may be other factors involved in why they would take

01:09 - 42.144 JAY away or not.

01:09 - 44.146 So I think I've covered

01:09 - 45.948 a couple of the

01:09 - 48.250 factors, but let me just quickly real off

01:09 - 52.688 and this won't be any surprise to you that.

01:09 - 57.126 The test that we would like the court to use is, you know, five questions.

01:09 - 59.128 Does the government control the entity?

01:09 - 01.530 We say no.

01:10 - 03.966 Does the statute say the entity is part of the government?

01:10 - 05.167 Clearly not.

01:10 - 07.269 It doesn't. It's just silent on the issue.

01:10 - 10.239 Does the entity have governmental powers

01:10 - 13.542 and for or as part of the government?

01:10 - 14.610 Oh yeah, it has.

01:10 - 16.312 It actually has no governmental powers.

01:10 - 18.180 If you consider what governmental powers do.

01:10 - 22.051 These things like taxation and eminent domain and has none of that.

01:10 - 27.223 In fact, it doesn't even have coercive powers its members have to join.

01:10 - 30.693 But Jason Jay, who is not the one who enforces that.

01:10 - 31.560 It couldn't

01:10 - 34.763 it doesn't have really doesn't have any power at all other than the power

01:10 - 38.400 of every other insurance company in the state, whatever that is.

01:10 - 41.570 You know, these these companies operate they're heavily regulated.

01:10 - 44.740 They have to comply with various insurance department statutes,

01:10 - 47.142 and Georgia has to comply with all of those things.

01:10 - 51.146 But but other than that, it

01:10 - 55.651 the insurance department's regulation is almost nil.

01:10 - 57.786 Does the entity get its funds from the government?

01:10 - 59.188 We've already talked about that.

01:10 - 00.155 Absolutely not.

01:11 - 02.391 Never, never. A cent, not a penny.

01:11 - 05.761 You know, this this original Jay way it got set up outside of

01:11 - 07.896 Fred Anton's office

01:11 - 11.233 at the Pennsylvania Manufacturers Association Insurance Company.

01:11 - 15.437 And they used a secretary and they used, you know, a desk outside there.

01:11 - 18.574 And they got a phone and they eventually got up.

01:11 - 21.710 And when they started to get some premiums in from policies

01:11 - 25.914 they sold, they got their own office space and they leased it in their own name.

01:11 - 28.751 Of course, that, you know, they weren't the government.

01:11 - 30.185 They just did all this privately.

01:11 - 32.821 And then finally,

01:11 - 36.425 there's the government entity that do the assets.

01:11 - 38.460 Where do they go on dissolution?

01:11 - 42.398 And my colleagues are going to tell you here that

01:11 - 45.467 where they go on dissolution

01:11 - 49.171 has to be the state, because the state, they all agreed to the state.

01:11 - 51.540 But that's not the way this works.

01:11 - 54.810 In fact, anyways, plan says dissolution.

01:11 - 58.247 On dissolution the board will decide

01:11 - 01.617 where the assets go subject to the insurance commissioners approval.

01:12 - 03.385 That seems inconsistent to.

01:12 - 06.922 Me though with the concept that this

01:12 - 11.193 the General Assembly can repeal the enabling statute.

01:12 - 14.330 And Jay could cease to exist.

01:12 - 18.033 And I know there's implementation of dissolution that would follow,

01:12 - 22.504 but that just seems inconsistent to me that it's up to

01:12 - 26.508 Jay, you're not up to the legislature in that situation.

01:12 - 30.212 Well, the the the original Cat Fund statute

01:12 - 31.847 gave the

01:12 - 36.285 insurance commissioner the choice to use a jury.

01:12 - 39.021 Used the jury as a vehicle to go accomplish

01:12 - 43.625 what the legislature wanted.

01:12 - 45.661 The insurance commissioner made that choice.

01:12 - 48.230 He took their plan and approved it.

01:12 - 50.699 The plan says and always has said

01:12 - 54.069 that the assets are sent

01:12 - 58.440 the way the board wants them to go subject to the insurance commissioners approval.

01:12 - 02.611 Now, the General Assembly says, well, what that means then is that the is that the

01:13 - 06.048 the money's going to go to the state.

01:13 - 08.851 And I'm not sure how that what I see

01:13 - 12.454 happening as a consequence of the board's

01:13 - 15.858 own plan and bylaws

01:13 - 18.660 is that there might be a stalemate.

01:13 - 21.797 The board will propose here's how we want to distribute the assets.

01:13 - 24.466 And the insurance commissioner says, well, I'm not going to approve that.

01:13 - 26.101 So now we have a stalemate.

01:13 - 29.438 I think what happens at that point is we end up in front of a court and probably

01:13 - 33.208 ultimately this court as to where the money goes

01:13 - 35.310 and whether the insurance commissioners refusal

01:13 - 38.781 to approve the plan of distribution was was had any basis.

01:13 - 41.817 But but we're not there. And So

01:13 - 43.385 I guess

01:13 - 47.356 the other thing that I'll say is that

01:13 - 49.124 the assets

01:13 - 51.693 also would follow

01:13 - 56.665 the path of of distribution under the dissolution provisions

01:13 - 01.069 of the unincorporated nonprofit association law.

01:14 - 05.874 And that is a sort of a decision tree of, you know, where the money goes.

01:14 - 09.344 Basically, anybody has an outstanding obligation, gets paid, as you would think,

01:14 - 11.313 like in a bankruptcy or whatever.

01:14 - 13.115 And then

01:14 - 16.819 the next rung down is goes according to the plans

01:14 - 19.288 governing principles, which would be the board's

01:14 - 25.594 plan of operations, which would be j ways, nonprofit purpose,

01:14 - 29.131 which would be to support physicians

01:14 - 31.767 and other health care providers who are covered by Georgia,

01:14 - 36.271 should be able to access insurance at a reasonable cost

01:14 - 38.640 council.

01:14 - 41.343 Let's assume for the sake of discussion that

01:14 - 44.646 the Legislature decides to

01:14 - 48.183 enact some type of legislation

01:14 - 53.388 that would pull the plug on the jury as it currently exists.

01:14 - 56.525 And I don't know how they do that, but let's assume that that happens.

01:14 - 59.895 What would preclude the industry

01:15 - 04.299 from creating a vehicle like this?

01:15 - 07.169 I mean, obviously, ultimately there would have to be

01:15 - 09.805 insurance department

01:15 - 11.940 approval of it.

01:15 - 16.678 But is there some reason why the private sector,

01:15 - 19.915 without the initiation by the government,

01:15 - 22.618 could not have approached

01:15 - 25.854 this problem on their own?

01:15 - 27.256 No, your Honor.

01:15 - 31.293 The that and and if under your hypothetical,

01:15 - 36.832 the legislature decided pull the plug on Jay Wise, that's not needed any more.

01:15 - 39.768 The insurance industry thought that it was they could form their own

01:15 - 43.972 reform, their own association, or continue the one that already exists.

01:15 - 47.342 And as you say, they would have to apply to the insurance commissioner

01:15 - 50.245 to get whatever authority they needed because the statute gives them

01:15 - 54.149 the authority without ever having had to go through that application process.

01:15 - 55.350 I guess you could think of it that way.

01:15 - 57.252 That Section 732 of the statute,

01:15 - 59.688 you know, when it

01:15 - 03.759 the current M care statute, when it continued during existence, it

01:16 - 08.430 theoretically the insurance commission would not need

01:16 - 14.403 the approval of the legislature to approve a newly formulated ID

01:16 - 18.607 you way or, you know, some entity like it.

01:16 - 19.174 Right.

01:16 - 23.078 And I suppose if the legislature only if the legislature

01:16 - 26.982 for some reason didn't want this to happen,

01:16 - 30.218 I suppose they could legislate to say the insurance commissioner can't do that.

01:16 - 32.087 But other than that,

01:16 - 34.289 and I it's hard

01:16 - 36.391 to imagine why the legislature would do that,

01:16 - 41.597 but it is possible for this entity to come into being

01:16 - 45.267 without any legislative intervention.

01:16 - 49.605 Yes. And in fact, as with the discussion

01:16 - 52.708 that I had with Justice Robson, that's that's how it started.

01:16 - 55.677 Well, that's that's yeah, that

01:16 - 59.214 the reason why the jury

01:16 - 02.517 came into existence, much like assigned risk pools come into existence,

01:17 - 06.355 is because there's because the commercial market doesn't

01:17 - 09.224 want to write the insurance, the rates that the people can pay for them.

01:17 - 12.961 So the Jay Way, the insurance commissioners and Mr.

01:17 - 14.863 Ante or the insurance companies and Mr.

01:17 - 17.065 Anton came forward because the General Assembly said

01:17 - 18.266 the cap fund that

01:17 - 20.002 there's a need for coverage for doctors

01:17 - 22.638 that are high risk and can't get it in the ordinary market.

01:17 - 26.375 I'm not sure that the industry's intentions were completely

01:17 - 28.010 Elmore's ordinary, I think.

01:17 - 30.379 I think the idea was

01:17 - 34.016 we're going to be we're either going to be forced to deal with a state run fund

01:17 - 38.186 or that we're going to have to fund that we're going to have no control over.

01:17 - 42.090 Or we can create this association, come to the insurance department

01:17 - 44.292 and say, you don't have to create a state run fund.

01:17 - 46.061 We'll take care of this. We'll do it.

01:17 - 48.363 And you have done so very well for decades.

01:17 - 50.732 And the fact that you generated a huge amount of surplus

01:17 - 54.369 that is very attractive to the general fund budget, but

01:17 - 59.975 I'm not sure I think Justice Donahue is is correct in the sense that, sure,

01:18 - 03.845 if the jury was taken away statutorily, that the insurance

01:18 - 07.616 companies that write this in Pennsylvania come together voluntarily

01:18 - 12.387 and form their own little high risk pool of medical malpractise insurance.

01:18 - 14.923 I'm not sure there's much of a motivation to do that.

01:18 - 19.961 Well, except it's been it's been relatively successful,

01:18 - 24.199 and it's certainly a viable concept given their performance.

01:18 - 25.701 Oh, no question, Your Honor.

01:18 - 27.269 It's it's I mean,

01:18 - 30.706 in theoretical terms,

01:18 - 34.276 the conversation that you and I had, it's absolutely true that

01:18 - 39.014 that that that the insurers could do this on their own.

01:18 - 41.650 It's also probably true.

01:18 - 45.821 And the reason why we have other assigned risk pools, etc., that,

01:18 - 48.824 you know, they're not

01:18 - 51.093 limousine or organizations.

01:18 - 55.530 And so most private insurance companies and so it may not happen

01:18 - 58.633 that way for various practical reasons, but it certainly could.

01:19 - 01.937 Would you like to wrap up, counsel?

01:19 - 04.172 I would like to address yes, I would, Your Honor.

01:19 - 06.641 I have not addressed

01:19 - 08.610 what I think is an important point,

01:19 - 11.413 and that is the

01:19 - 15.717 the governors issue, which is

01:19 - 19.621 the jury

01:19 - 21.456 has to be the government,

01:19 - 26.094 because in 1975,

01:19 - 30.932 there was no such legal entity as a nonprofit association,

01:19 - 36.404 nonprofit associations existed, but they only could

01:19 - 38.306 live life

01:19 - 41.209 under the guise of their individual members.

01:19 - 45.013 And so they couldn't acquire property they couldn't sign a deed.

01:19 - 49.084 They couldn't do any of those things that legal entities do.

01:19 - 55.090 And my response to that is, and we said this in our brief only,

01:19 - 58.527 we brief the issue because we figured that they would raise it in response,

01:19 - 03.064 as they did in the federal courts, although very belatedly, since they

01:20 - 05.700 didn't raise it until it got to the Third Circuit

01:20 - 09.070 after three separate lawsuits in the federal district court,

01:20 - 12.007 we heard it for the first time in the Third Circuit on appeal.

01:20 - 14.543 This issue. But the issue is that

01:20 - 19.114 and another reason why they would say that the jury has to be

01:20 - 22.450 the government is because

01:20 - 23.952 the only way it could be a legal

01:20 - 27.189 entity would be if it were a government entity.

01:20 - 31.159 And my response to that is the combined case, you know, sets out the principle

01:20 - 34.529 that, you know, that is true and common law.

01:20 - 38.233 You, an unincorporated association, didn't have those rights

01:20 - 43.038 unless and the major exception is it was conferred by statute.

01:20 - 47.642 And we would say that in the catch fund statute, the legislature gave

01:20 - 51.213 the insurance commissioner this choice essentially gave the industry this choice.

01:20 - 53.014 The industry came back with a plan.

01:20 - 55.851 The plan said on almost its first line

01:20 - 01.790 jury is a separate legal entity, separate and apart from its members.

01:21 - 03.959 Insurance commissioner approved that plan

01:21 - 08.330 and then in the 2000 to catch funds STAT or MK Statute,

01:21 - 12.667 you know Georgia was established as a nonprofit corporation.

01:21 - 17.305 That's another, I would call it a legal imprimatur on its legal existence.

01:21 - 20.375 And so when you have statutes that expressly do

01:21 - 23.645 this, you get past that common law problem.

01:21 - 27.515 So all of the argument and related argument

01:21 - 31.152 concerning this issue we think is, well, a nonstarter.

01:21 - 34.756 And and finally,

01:21 - 35.957 I would just

01:21 - 43.665 I would just say that

01:21 - 47.035 you're going to hear from the state

01:21 - 51.640 parties that you should accept this creature theory

01:21 - 54.242 and that the creature theory.

01:21 - 57.746 I will just suggest that the creature theory is

01:21 - 02.417 too broad to

01:22 - 04.519 be a useful construct.

01:22 - 06.621 And what you need to use

01:22 - 10.525 is the kind of tests that you've developed in similar situations

01:22 - 13.862 and those similar situations hit the five factors

01:22 - 17.499 that we've discussed and and make a determination.

01:22 - 20.368 And I think when you look at those five factors

01:22 - 24.773 through the lens of juror's experience,

01:22 - 28.877 you will have to conclude if you are going to answer the question

01:22 - 33.281 as asked, you will have to conclude the jury is private, not public.

01:22 - 35.417 Thank you, Mr. McCann.

01:22 - 45.126 Mr. Myers, you want to go next?

01:22 - 48.363 Good morning, Chief Justice Todd.

01:22 - 49.631 And may it please the court.

01:22 - 51.633 My name is Carl Myers from Stevenson Lee.

01:22 - 55.070 I'm here today representing the legislative branch

01:22 - 57.305 of the Commonwealth Government, the General Assembly,

01:22 - 58.106 the Speaker

01:22 - 01.242 of the House of Representatives, the President pro tempore of the Senate

01:23 - 03.445 and the minority leaders of the House and Senate.

01:23 - 06.414 I'm here as my Paige Hogan.

01:23 - 09.050 And just before I begin, I wanted to lay out

01:23 - 11.553 that we're going to attempt, even though there's a single issue

01:23 - 14.589 that's been presented for this court's review, we're going to attempt

01:23 - 18.360 to divide the issues as best as we can to avoid duplication and argument.

01:23 - 20.161 I know the Court always appreciates that.

01:23 - 23.264 I'm going to focus my argument on the constitutional question.

01:23 - 27.302 So the relationship between the jury and the Commonwealth, Mr.

01:23 - 30.839 Kirkpatrick, is going to address the question of the nonprofit

01:23 - 35.510 unincorporated association law and other questions about entity status.

01:23 - 36.511 But of course,

01:23 - 40.048 we're both of, of course, happy to answer questions about our respective briefs.

01:23 - 42.117 The question presented to

01:23 - 47.555 this court is under our Constitution, the Pennsylvania Constitution

01:23 - 51.526 is an entity that is created by the Commonwealth

01:23 - 56.631 to solve a public policy problem fundamentally public or private.

01:23 - 59.868 It's interesting you phrased it with the Pennsylvania Constitution,

01:24 - 03.571 because that's not exactly what the wording was from from

01:24 - 06.841 the Pennsylvania law can encompass the Constitution.

01:24 - 10.678 But I think it's interesting that that you've chosen to focus on that.

01:24 - 13.648 Well, Justice Roberts and I actually wanted to get my opening

01:24 - 15.517 spiel out before I started to address your question.

01:24 - 19.521 But actually, it actually my opening spiel actually directly addresses

01:24 - 21.923 the very first question you asked Mr. McEwen, which is,

01:24 - 25.660 you know, the third asked this court a very open ended question.

01:24 - 26.661 And I think it is

01:24 - 30.131 fair to say that speculation to guess as to why it was phrased as it was,

01:24 - 32.801 I like to think it's because the Third Circuit

01:24 - 35.904 to give this court some leeway about how to answer the question.

01:24 - 40.442 Because, Your Honor, Justice Breyer isn't you're correct that this court doesn't

01:24 - 44.579 typically and Pennsylvania law typically doesn't tackle this kind of question

01:24 - 47.749 by simply saying public, private, end of discussion.

01:24 - 51.553 Rather, our courts and under precedent set

01:24 - 54.856 by this court, it's an issue by issue analysis.

01:24 - 58.960 And that's why the jury is inviting this court to look at cases

01:24 - 02.797 like sovereign immunity and tax exemption and other cases of those those types.

01:25 - 06.835 But the question here is, has nothing to do with tax exemption

01:25 - 08.803 or any of those kinds of other issues.

01:25 - 12.440 The question here is a constitutional question,

01:25 - 17.545 and it's the jury's claim that it has the constitutional right

01:25 - 21.249 to assert a takings claim that the Commonwealth

01:25 - 25.153 has taken its private property without just compensation.

01:25 - 27.722 So the question for this court is,

01:25 - 32.060 does an entity like the jury have constitutional

01:25 - 36.030 it can assert against the Commonwealth that created it.

01:25 - 39.434 The answer to that question is emphatically no.

01:25 - 41.402 It does not have those rights.

01:25 - 43.538 Tellingly, and we called this out in our brief,

01:25 - 47.675 the jury cites no case in Pennsylvania history

01:25 - 50.778 where this court or any other court or frankly, any other court

01:25 - 54.816 across the nation has said that an entity created by a state

01:25 - 59.521 to address a public policy problem has constitutional rights.

01:25 - 02.690 It can then turn around and assert against its very creator.

01:26 - 04.826 And there's good reason for that.

01:26 - 08.129 And that's because there's legions of cases that say the exact

01:26 - 11.566 opposite of that proposition. Mr.

01:26 - 16.004 McEwan has said that we have this theory about the creature of the state,

01:26 - 17.172 that it's a theory.

01:26 - 18.740 And the suggestion is that

01:26 - 21.242 we've invented this, that this is some kind of concoction

01:26 - 23.845 that we've we've generated for the purpose of this case.

01:26 - 29.017 No, that concept is embedded in ancient constitutional principles.

01:26 - 32.220 It's in trustees of Dartmouth, it's in city of Trenton,

01:26 - 33.421 and then it's been carried.

01:26 - 36.090 And those are US Supreme Court cases,

01:26 - 38.760 and that's been carried forward in this court's precedents.

01:26 - 42.497 So it's in the Fox case, it's in the Chester Institutional District case.

01:26 - 47.902 And what those cases say is that the states

01:26 - 51.139 create entities to carry out governmental functions.

01:26 - 55.143 These are essentially in the Fox courts terms.

01:26 - 00.682 They're revocable agencies that carry out the essential operations government.

01:27 - 03.685 Now, we can we can put labels on them like agency,

01:27 - 07.622 commission, board, the label instrumentality.

01:27 - 09.257 The label does not matter.

01:27 - 14.195 The simple is that these are legislative legislatively created bodies,

01:27 - 19.434 putting, of course, aside those entities that are set up by constitution.

01:27 - 23.671 So for example, Article five gives this court the domain over the judiciary.

01:27 - 27.342 Other provisions give the governor exclusive powers.

01:27 - 28.843 But outside of those

01:27 - 32.981 constitutionally committed powers, the General Assembly has a free hand

01:27 - 36.784 to organize and reorganize the internal affairs of the Commonwealth.

01:27 - 40.855 And you did say essential of government.

01:27 - 41.222 Yeah.

01:27 - 44.826 How is providing medical malpractise insurance

01:27 - 46.928 in the central operation of our Commonwealth government.

01:27 - 50.031 Well it's, it's within the police powers of the general.

01:27 - 52.367 Maybe I misspoke or maybe I spoke too narrowly.

01:27 - 55.036 It's not essential, though. I didn't say it was limited to that.

01:27 - 56.304 I didn't just say essential.

01:27 - 58.773 You said essential, essential operations of government.

01:27 - 00.942 That's what you said. Yes. Yes.

01:28 - 05.146 That is the providing of of of medical malpractise

01:28 - 07.915 insurance, an essential operation of government,

01:28 - 10.985 unlike saying providing a public education.

01:28 - 14.522 It is actually and it's and I don't want to get too wrapped up

01:28 - 15.957 in this essential non-essential.

01:28 - 16.591 But it's important.

01:28 - 19.694 Right, because it is it is important

01:28 - 24.666 because there are a lot of entities that are statutorily created

01:28 - 27.769 that no one would

01:28 - 31.172 argue is part of the Commonwealth.

01:28 - 34.475 The Blues plans, for example, would not exist in Pennsylvania

01:28 - 39.781 under the Professional Health Malpractise Professional Health Law in Pennsylvania.

01:28 - 43.951 If if they weren't statutorily created, they were authorized and created

01:28 - 44.952 by statute.

01:28 - 48.423 Any corporation in the Commonwealth of Pennsylvania exists

01:28 - 53.027 only because General Assembly enacted a statute that authorizes the creation

01:28 - 57.332 of corporations and applications and approval from the Department of State.

01:28 - 00.401 You're not suggesting that there public?

01:29 - 01.803 No, I am not.

01:29 - 04.238 I'm not that the distinction to be drawn in the

01:29 - 07.241 the question of the creation of a corporation is

01:29 - 10.244 it comes back to the fundamental what we call the Dartmouth question.

01:29 - 13.081 It's we've been litigating this for six years, so now we're using shorthand.

01:29 - 14.582 But the Dartmouth question,

01:29 - 17.552 it's the US Supreme Court decision from 1819 that basically says that

01:29 - 21.789 when you're looking at fictitious entities like corporations or other

01:29 - 25.626 or other business entities or business like entities,

01:29 - 29.530 the question you have to ask for purposes of the question presented here,

01:29 - 32.700 which is does this thing have constitutional rights?

01:29 - 36.738 It can assert is who created it and why was there

01:29 - 38.206 a private interest behind it?

01:29 - 40.141 Sorry to interrupt, but this goes back to my problem

01:29 - 43.411 is you're almost asking me to resolve the Third Circuit issue.

01:29 - 48.082 The question of whether whether the jury has constitutional rights.

01:29 - 52.420 That's not the question that that that we have in front of us.

01:29 - 53.721 We simply have in front of us.

01:29 - 56.124 The question is, is the judge public or private?

01:29 - 00.828 But I think, again, this court's analysis is an issue by issue

01:30 - 04.298 analysis, and the court doesn't need to resolve the federal constitutional.

01:30 - 05.199 QUESTION.

01:30 - 08.703 The third circuits question, I think, can appropriately be

01:30 - 11.305 characterized as a question of asking

01:30 - 14.642 does the is there a state property interest?

01:30 - 17.745 Because property interests are typically determined by state law.

01:30 - 20.915 Does the job have a state property interest?

01:30 - 24.685 It can assert that's the easier or narrow way that it can be phrased.

01:30 - 27.789 That is consistent with the issue by issue analysis.

01:30 - 30.658 And so I really wish they would have asked us that question.

01:30 - 34.295 Yeah, well, if but if, if carrying that through line

01:30 - 38.299 and I think the court can write an opinion that doesn't necessarily

01:30 - 42.437 make a broad declaration that the job is public or private, because I will

01:30 - 46.040 readily can see that in another context, under another set of facts,

01:30 - 48.242 it may be appropriate to find that

01:30 - 51.946 the jury is not public for all purposes at all times.

01:30 - 55.249 So, for example, if a policy claim was made by somebody

01:30 - 58.653 under the policy, then it might be deemed private for those purposes.

01:30 - 01.756 And so I think when the court authors its opinion here,

01:31 - 04.125 I don't think it necessarily needs to stick its neck out

01:31 - 07.328 and say the job is public for all purposes.

01:31 - 08.863 It just needs to say for this case.

01:31 - 10.331 Let's explore that then for a second.

01:31 - 13.801 If the when someone when

01:31 - 18.973 a medical professional presents a claim to the jury under a policy

01:31 - 21.909 and the jury does not pay,

01:31 - 25.213 do they sue in the board of claims?

01:31 - 26.581 I don't think the answer is no.

01:31 - 28.983 I know we actually developed discovery in this case.

01:31 - 32.119 I don't think there actually has been a situation where that has arisen.

01:31 - 33.354 I don't think it will go.

01:31 - 35.723 But if it was a Commonwealth government agency,

01:31 - 38.259 that would be where you're that would be a breach of contract action.

01:31 - 40.862 You'd have to go to the Board of claims

01:31 - 42.563 if it was a Commonwealth agency. Right.

01:31 - 44.532 And that that comes back as if it was the public.

01:31 - 46.567 You would also sue in Commonwealth Court.

01:31 - 48.669 I'm sorry, I didn't hear this.

01:31 - 49.570 If it was a comma,

01:31 - 51.939 if it was a Commonwealth agency would also arguably have an A

01:31 - 54.742 and you'd have to choose between Board of Claims and Commonwealth Court, right.

01:31 - 56.911 If it were, if it were a Commonwealth.

01:31 - 00.081 But again I, I want to emphasize what I said earlier.

01:32 - 01.983 It's an issue by issue analysis.

01:32 - 03.651 So we're not suggesting

01:32 - 06.654 that that necessarily Justice Brown's and needs to be the end result,

01:32 - 09.590 that everything about this needs to be deemed public.

01:32 - 11.592 It just on the facts presented

01:32 - 14.862 the relationship between the jury and the commonwealth that created it.

01:32 - 18.299 Is that a public or is that a private relationship?

01:32 - 22.970 The Joey's other relationships, whether it be with a policyholder or not,

01:32 - 26.908 that might be deemed in another context, a private relationship.

01:32 - 28.976 But here the question is

01:32 - 32.046 what's the nature of the relationship between the jury and the Commonwealth

01:32 - 35.550 that created it to solve a public policy problem and that fundamentally

01:32 - 40.788 a public relationship?

01:32 - 44.792 I wanted to address some of the questions that have been asked of

01:32 - 48.262 Mr. McCune.

01:32 - 50.831 Justice Chief Justice Todd and Justice Daugherty,

01:32 - 53.701 you asked the question about the repealing of the statute.

01:32 - 55.303 You know, could couldn't they just repeal the statute?

01:32 - 57.605 Well, in point of fact, the General Assembly has

01:32 - 00.775 repealed or amended the statutes that affect the jury.

01:33 - 04.345 And that's part of why we're here, because

01:33 - 07.415 while the duty was created by statute in 1975

01:33 - 12.987 and actually I need drop a footnote and clarify some things about this notion

01:33 - 17.191 that this was a voluntary decision by the insurance industry that said,

01:33 - 21.362 oh, and Justice Roberts, unfortunately, you saw some of my thunder on this.

01:33 - 22.363 You know, that

01:33 - 24.665 this was the insurance industry coming to the Commonwealth saying,

01:33 - 26.867 oh, we want to help you fix this public policy problem.

01:33 - 29.937 No, not by any stretch of the imagination.

01:33 - 35.443 This this happened the way exists because the commonwealth made it happen,

01:33 - 38.846 not because the insurance industry did this on its own.

01:33 - 43.250 Section 801 of the 1975 statute, says the commissioner.

01:33 - 45.386 The Insurance Commissioner shall.

01:33 - 48.689 That's a legislative command directing the insurance commissioner

01:33 - 52.460 to do something about this and create this public option.

01:33 - 53.828 It said to do something.

01:33 - 55.563 It didn't say to do this.

01:33 - 56.464 It did, actually.

01:33 - 00.101 It's and this was a legislative policy choice.

01:34 - 05.473 The legislature said, okay, we will let the commissioner again, a

01:34 - 11.045 commonwealth actor, not private industry, the commissioner make a decision.

01:34 - 15.616 You can either commissioner have this as something within the insurance department.

01:34 - 17.251 All the care fund,

01:34 - 19.887 or you can

01:34 - 23.524 you can basically tell the industry you're going to do this.

01:34 - 29.964 You're as a mimic, you're causing fraud, and trying to roll over in as well.

01:34 - 33.567 But I mean, there's been much made about about this happening at Fred

01:34 - 37.171 on Anton's desk and using Fred Anton's phone.

01:34 - 40.941 And I when I hear that and I hear all these other ancillary

01:34 - 45.146 things that that describe the jury and then they sound like they're private.

01:34 - 48.549 I shrug my shoulders because I say, So what?

01:34 - 51.218 None of this would have happened this way.

01:34 - 54.121 But for the General Assembly, opening the door for it

01:34 - 57.191 to happen and and for directing the Commission make that choice.

01:34 - 00.194 We did that by giving the commissioner that choice, though.

01:35 - 03.631 Doesn't that choice that she makes matter

01:35 - 10.204 in terms of whether it's government or whether it's government regulated

01:35 - 12.206 because

01:35 - 15.276 insurance departments or government regulated or insurance companies,

01:35 - 15.943 there's a lot

01:35 - 19.046 government regulated entities out there that nobody would say to the government.

01:35 - 21.782 So when the General Assembly gave the commissioner, this choice

01:35 - 25.086 wasn't a choice between government and government regulated,

01:35 - 28.189 and she chose government regulated that that's also a fallacy.

01:35 - 33.694 Just as props and throughout the Joey's brief, it constantly says that the comment

01:35 - 36.030 the commissioner had a choice between a government option

01:35 - 39.400 or a non-government option and constantly, like a drumbeat,

01:35 - 42.737 refers to this plan option as a non-governmental option.

01:35 - 47.308 The problem is the statute says nothing about being a non governmental.

01:35 - 50.478 I know I get to hear about that, but I understand that

01:35 - 51.846 it doesn't say that expressly.

01:35 - 52.780 I mean that.

01:35 - 55.483 But but it is there were two choices.

01:35 - 57.151 You're saying both choices were government.

01:35 - 00.721 They are both government options because the so the insurance

01:36 - 03.891 commissioner said the statute says commissioner

01:36 - 07.394 you have you we're commanding you, we're the legislature, we're making the decision

01:36 - 11.298 here, but we're fundamentally making the choice to provide two options.

01:36 - 13.534 One is you put it within the insurance department.

01:36 - 15.703 The other is you approve and supervise.

01:36 - 19.507 That doesn't change the fact that it's still a governmental program

01:36 - 21.842 and a government run, a government supervised program.

01:36 - 24.678 All that the this approve it.

01:36 - 29.850 Why why is that not exactly what happens with every insurance carrier?

01:36 - 32.787 They're regulated by the insurance department.

01:36 - 36.090 They're supervised by the insurance department.

01:36 - 38.159 But their interest.

01:36 - 39.593 I'm sorry, justice done here. We finished.

01:36 - 44.298 Oh, so the difference is, is that for a private insurance company,

01:36 - 47.635 the interests that underlie the private insurance company and the source

01:36 - 52.139 of the private insurance companies interests are inherently private.

01:36 - 53.741 The the

01:36 - 56.377 who created and why are inherently private?

01:36 - 00.815 The difference here is the who created and why are governmental

01:37 - 04.685 and it says anything about the blues plans.

01:37 - 07.988 Well, the blues plans, I believe they were authorized

01:37 - 09.190 and they may have been chartered

01:37 - 13.861 by Commonwealth law, but those were set up as corporations.

01:37 - 15.896 And there are other stakeholders

01:37 - 18.632 that actually have an interest in the operation of blues plans.

01:37 - 20.634 And I, I can only do not

01:37 - 24.305 I do not admit to still being an expert on the blues plans, but

01:37 - 28.042 I think there is material distinction there, material distinctions

01:37 - 31.679 between the blues plans as nonprofit corporations

01:37 - 35.783 and this entity, which isn't a corporation of any kind with any

01:37 - 38.752 stakeholders doesn't have stockholders it doesn't have well, corporate

01:37 - 41.121 the blues plans don't have stock shareholders either.

01:37 - 45.259 They're member nonprofits and so but but there to

01:37 - 53.234 your point are under the statute their purpose is purely charitable.

01:37 - 54.535 That is correct to the public

01:37 - 57.838 to insure the people of last resort in the Commonwealth of Pennsylvania.

01:37 - 01.242 That's their charter.

01:38 - 03.143 I don't know that I would necessarily characterize it.

01:38 - 06.280 Justice Brown's in as charitable because it's

01:38 - 09.316 meeting a public policy and a public health need.

01:38 - 14.121 The whole idea here and in the 1975 and the 2002 acts,

01:38 - 16.924 they both state that the purpose of these acts

01:38 - 20.828 and the purpose of the jury are to protect public.

01:38 - 23.397 I mean, first and foremost, it's the main purpose is

01:38 - 26.734 let's make sure that people that are injured by doctors malpractise

01:38 - 30.337 can make a claim and be compensated for their injuries.

01:38 - 33.741 Number two, let's make sure that there's available health insurance

01:38 - 36.310 so that doctors can practice medicine.

01:38 - 39.079 And three, let's make sure that there is that insurance

01:38 - 40.581 so that there's access to health care

01:38 - 44.585 for all that we have enough doctors that we can provide for people.

01:38 - 47.621 So I'm not sure that I would characterize it as charitable so much as

01:38 - 51.358 it's intended to address a public policy problem.

01:38 - 53.193 I don't know if that answers your question.

01:38 - 53.661 It doesn't.

01:38 - 59.433 I'm just I'm keying off of your idea that the jury doesn't have a private motive.

01:38 - 02.903 It's because it was because it was authorized by statute.

01:39 - 07.308 And that somehow the fact that it doesn't have a private motive differentiates it

01:39 - 11.045 from a regulated entity, a governmental entity.

01:39 - 15.816 And my only point is the blues plans are in that exact same situation.

01:39 - 17.251 So is pleasure.

01:39 - 21.188 So so are all the governing of the life insurance, health guaranty associations.

01:39 - 26.193 I mean, I could go down a list of entities that are statutorily authorized

01:39 - 29.763 that every argument you are raising would them

01:39 - 31.899 public.

01:39 - 32.232 Well, and

01:39 - 34.601 that's and that's actually why I was trying to draw a distinction

01:39 - 39.974 between a charitable organization or one that is intended to help those less

01:39 - 42.176 fortunate like the blues plans, or at least ostensibly

01:39 - 46.547 that's part of its mission versus the jury and the guaranty associations

01:39 - 50.651 and all those similar entities which those are all statutory creations

01:39 - 54.388 by legislatures that are meant to address public policy problems.

01:39 - 57.591 So you in the GOP, you would agree with the guaranty associations

01:39 - 00.494 are government, are are public and not private.

01:40 - 04.131 As to their relationship to the Commonwealth of Pennsylvania,

01:40 - 06.066 they are public because the General

01:40 - 09.870 Assembly created those bodies to again address a public policy problem,

01:40 - 12.806 and that's that situation for the guaranty funds.

01:40 - 16.810 It's the risk when a for profit or insurance company

01:40 - 19.413 or another insurance or insurance company goes belly up.

01:40 - 22.349 Who pays those policies don't have to be for profit insurance.

01:40 - 22.883 Well, okay.

01:40 - 26.620 The the insurance carriers that what happens if they go belly up?

01:40 - 29.223 Who is there to make sure that claims are paid?

01:40 - 31.925 And so that's why there's a legislative mandate

01:40 - 35.329 to set up those guaranty funds to ensure that the policyholders

01:40 - 38.432 are protected when a claim is made, if their carrier goes belly up.

01:40 - 42.836 So the gas and the JUA I'm sorry I'm lapsing into industry

01:40 - 47.574 speak that guarantee associations and the way those vis a vis

01:40 - 50.978 their relationships to the commonwealth they serve a public function

01:40 - 53.781 their function their nature fundamentally is public

01:40 - 55.282 counsel.

01:40 - 57.985 Let me let me just sure if I'm that

01:40 - 01.355 if for some reason the jury had insufficient

01:41 - 03.791 funds to carry your claim, the government wouldn't cover it.

01:41 - 06.593 It's their liability.

01:41 - 10.664 Well, so they have private borrowing authority.

01:41 - 13.667 They don't go to the government to cover a claim

01:41 - 17.604 hypothetically that they couldn't cover, and they're expressly non-recourse

01:41 - 21.775 the Commonwealth and and I would add those, everything

01:41 - 25.813 that Your Honor just described, those were legislative policy choices.

01:41 - 29.283 The Legislature made the decision and originally

01:41 - 34.822 it set up the way that it would get excess coverage or gap

01:41 - 38.892 coverage for unpaid claims or deficiencies from the CAT Fund.

01:41 - 42.896 So a governmental fund would cover its deficiencies.

01:41 - 46.567 And then the statute was changed in oh two and said, Now, Joe,

01:41 - 48.135 you have to go out and get a loan.

01:41 - 51.538 You would think that that means if the Jay was private, it would have sued

01:41 - 54.174 and said, you can't make us go get loans because we're part of the government.

01:41 - 55.742 But that lawsuit never happened

01:41 - 57.111 because.

01:41 - 58.512 They don't think they're part of the government.

01:41 - 00.981 I mean I mean, what you just described

01:42 - 04.751 is an express disassociation by the Commonwealth from that.

01:42 - 08.956 JAY Well, what would look to us if there is a problem?

01:42 - 12.826 Well, so this actually gets to the fundamental question here

01:42 - 17.231 and the General Assembly view, which is this is a case about legislative power.

01:42 - 23.337 Legislative power is not conditioned on how close the General Assembly

01:42 - 27.341 or the Commonwealth keeps an entity to it or how closely it supervises.

01:42 - 33.180 Every day work is going on in townships and counties and school districts

01:42 - 34.715 across the Commonwealth

01:42 - 36.850 and the General Assembly is not micromanaging

01:42 - 39.753 what goes on in those entities, but those entities.

01:42 - 44.525 Entities are inarguably creatures of the state, subject to the plenary power

01:42 - 48.562 of the General Assembly to create change, modify or destroy them.

01:42 - 51.765 So simply because the General Assembly

01:42 - 55.002 has elected as a legislative policy choice

01:42 - 58.505 to give the jury a degree of freedom

01:42 - 01.575 in its administration of a public function

01:43 - 05.913 pursuant to a statutory mandate that doesn't represent

01:43 - 11.185 giving up legislative power or creating a private entity

01:43 - 16.890 that actually is good government, that that's a legislative policy success story.

01:43 - 20.894 And so so if the Jay's made all this money and now is a 300

01:43 - 23.030 plus million dollars surplus,

01:43 - 26.500 I frankly think that we should be congratulating the legislature for saying

01:43 - 30.404 we're going to choose to mimic for our public option

01:43 - 33.540 the things that work from private industry.

01:43 - 35.042 And it worked.

01:43 - 39.179 But that's not the of free will or private choice.

01:43 - 42.583 That's a product of public policy choices

01:43 - 50.557 by the General Assembly.

01:43 - 54.928 I think unless the Court I have much more I could say, but I think I've occupied

01:43 - 56.463 I've taken a lot of air out of the room.

01:43 - 00.367 Unless the court has further questions, you can you can rely on your brief

01:44 - 02.703 for any of your other arguments, if you'd like.

01:44 - 07.407 Of course, we would just simply ask in summary for the this Court to declare

01:44 - 11.912 the j public as to its relationship to its Commonwealth creator.

01:44 - 12.980 That's what we're asking for.

01:44 - 14.815 Thank you. I'll pass it to Mr. Kirkpatrick.

01:44 - 15.716 Let's hear from Mr.

01:44 - 21.121 Kirkpatrick.

01:44 - 23.290 Madam Chief Justice Justices may please.

01:44 - 26.760 The Court My name is Sean Kirkpatrick with Pennsylvania Office of Attorney General

01:44 - 29.896 here on behalf of the governor and the insurance Commissioner.

01:44 - 35.702 And to get to I think the seminal question in this case,

01:44 - 40.907 which is, is Jay a public or private that is not as just as props

01:44 - 46.513 and recognizes a question of is jury a arm of the commonwealth?

01:44 - 48.282 Is it an agency of the Commonwealth?

01:44 - 49.583 Is it a local agency?

01:44 - 52.653 Is it however you want to describe it for purposes of the right

01:44 - 55.322 to know law or for real estate taxes?

01:44 - 57.991 Is it public or private?

01:44 - 03.063 And what if I can just step away from the money for a second

01:45 - 07.000 and focus on other aspects

01:45 - 10.570 of Act 41, Act 44 and Act 15,

01:45 - 13.874 which was the General Assembly's desire

01:45 - 18.812 to change what it created.

01:45 - 22.883 And in fact, in Act

01:45 - 28.722 44, there was actually a sunset clause that got enjoined.

01:45 - 31.725 And then when the General Assembly attempted to modify

01:45 - 34.928 the jury, that got enjoined.

01:45 - 40.500 So when this comes back, it's it's again, not focused solely upon

01:45 - 43.503 whether Janeway, for example,

01:45 - 49.009 might wear the Commonwealth Court has original jurisdiction necessarily.

01:45 - 52.145 It's a much more fundamental question, basic question,

01:45 - 56.483 which maybe is why it's it seems so illusory.

01:45 - 01.154 Is it public or is it private such that the General

01:46 - 04.591 Assembly cannot make any alterations to what it created?

01:46 - 07.294 And if I can go to again, Mr.

01:46 - 11.264 Kirkpatrick, that's not first of all, I'm not sure the General Assembly created it.

01:46 - 14.735 The General Assembly authorized its creation, but there's no

01:46 - 19.072 in the original Katherine Law, there was no provision that said or that said.

01:46 - 19.973 There is.

01:46 - 22.743 It hereby created a joint underwriting association

01:46 - 25.645 that shall be administered by the insurance department that that sort

01:46 - 28.815 consist of a board of directors, the blind people that shall have this

01:46 - 32.586 charge that you have, that you have this that's not in the original statute.

01:46 - 34.788 You agree?

01:46 - 36.823 I Agree, Your Honor.

01:46 - 40.093 How however, that statute was then repealed, I understand.

01:46 - 43.563 But this this has been a continuous entity from its beginning.

01:46 - 48.468 So so the idea that General Assembly created it is not accurate.

01:46 - 51.605 They authorized its creation much like they authorized

01:46 - 55.942 the creation of corporations.

01:46 - 58.879 Here is the fundamental difference between that, Your Honor.

01:47 - 03.483 With a corporation, you have individuals coming together.

01:47 - 09.723 They use the statutory structure in order to decide to incorporate an entity.

01:47 - 11.658 J was not incorporated.

01:47 - 13.927 It was an unincorporated association.

01:47 - 16.897 And yes, if we

01:47 - 20.100 accept the

01:47 - 24.871 origin stories about sitting in in desks

01:47 - 29.676 outside of offices, here is what the CAP

01:47 - 34.414 Fund legislation allowed the commissioner to do with this entity.

01:47 - 38.318 And this is Section 808 of Malpractise Act.

01:47 - 43.056 If, if the private insurance market and the legislation

01:47 - 44.591 or the General Assembly is saying,

01:47 - 47.494 okay, well, this plan isn't part of the private insurance market.

01:47 - 48.829 If the private insurance

01:47 - 52.866 market unfairly discriminates against higher risk physicians by denying

01:47 - 56.803 professional liability insurance coverage under certain conditions,

01:47 - 00.740 the commissioner after notice in public hearing may declare the plan.

01:48 - 02.242 In this case, J.

01:48 - 06.680 Way, established under this article, shall be the sole and exclusive source

01:48 - 08.782 of professional liability insurance

01:48 - 10.951 for health care providers within this Commonwealth.

01:48 - 14.988 The commissioner may dissolve the plan if he determines it's not needed,

01:48 - 20.760 may reestablish it if he if he decides that it is needed, if he finds, quote,

01:48 - 25.432 that the private industry has failed to provide an adequate market.

01:48 - 29.302 So this your way was a cudgel to be wielded by the commission

01:48 - 30.871 if it was a private entity,

01:48 - 34.741 I think we get into sort of monopoly and Sherman act problems.

01:48 - 38.311 If the commissioner can say well this this entity that I've allowed

01:48 - 41.615 this private entity that I've allowed to be created guess what?

01:48 - 47.053 All the other private companies no longer can be in this marketplace.

01:48 - 52.292 This whole thing, this private company, private entity is the sole source

01:48 - 56.196 of insurance, medical malpractise insurance in Commonwealth.

01:48 - 57.797 That was never the intent.

01:48 - 02.502 The intent was always and this ties into to our argument about

01:49 - 06.239 why it's important that the uniform M

01:49 - 09.209 unincorporated Nonprofit Associations

01:49 - 13.413 Act was opposed states the creation of J by 30 years.

01:49 - 16.883 The intent was always the j way act

01:49 - 21.655 as an essential part of this regulatory regime.

01:49 - 25.525 And it was first with the Cat Fund and then the General Assembly did

01:49 - 29.095 what the General Assembly is allowed to do, completely repealed that

01:49 - 33.400 and says now we have the M care fund and we are establishing the

01:49 - 37.537 jury as a unincorporated association

01:49 - 41.575 and it can in the future

01:49 - 45.345 decide to completely repeal the M Care Act and do something else.

01:49 - 49.849 And that's what it is attempted to do through Act 41 and Act 44

01:49 - 52.185 and Act 15 is, say,

01:49 - 56.289 Kiawah, we're now going to say we before

01:49 - 59.960 we didn't say what you how your board had to be comprised.

01:50 - 05.131 We are now Kiawah you didn't have to be in a public building.

01:50 - 06.566 Now you do

01:50 - 08.802 you have to be under the right to know law.

01:50 - 11.571 You are under.

01:50 - 14.007 You're worried that

01:50 - 18.211 there's a deficit well, congratulations you now have access to public funds.

01:50 - 22.082 And so whether it is a

01:50 - 25.352 Commonwealth agency

01:50 - 29.589 for purposes of a statute, this is why we don't think the multifactor test

01:50 - 31.257 proffered by

01:50 - 34.628 my friend is very useful because the real question is,

01:50 - 38.298 is it public such that the General Assembly can change it

01:50 - 41.334 or is it private, which means it inherently

01:50 - 44.738 has its own status and rights?

01:50 - 49.075 Under those kinds, the General Assembly can change anything.

01:50 - 53.413 The General Assembly could enact changes to the nonprofit corporation

01:50 - 56.149 law tomorrow that impact nonprofit corporations.

01:50 - 59.419 That that that it's it's sort of a it's

01:50 - 02.989 a simplistic analysis because the answer to it is obviously yes.

01:51 - 04.624 Obviously yes.

01:51 - 08.662 The Commonwealth could pass legislation to affect any number of entities

01:51 - 09.963 operating in the Commonwealth.

01:51 - 13.933 A municipality could pass zoning law that affects that affects municipalities.

01:51 - 17.937 They can enact a tax statute that taxed an industry that wasn't taxed before.

01:51 - 18.805 They can do it.

01:51 - 21.908 I mean, that's just a it's incredibly simplistic question.

01:51 - 24.244 And I'm not sure we can answer this

01:51 - 28.214 public versus private by simply saying, can the General Assembly

01:51 - 32.852 regulate, legislate or change something in existence?

01:51 - 34.454 Well, yes, they do it all the time.

01:51 - 38.725 No, and that's exactly right, Your Honor.

01:51 - 41.061 They they can

01:51 - 43.329 repeal the Business

01:51 - 46.566 Corporation Act and suddenly there's no corporations left.

01:51 - 51.371 But in those cases, because it was incorporated under

01:51 - 55.075 as a separate entity

01:51 - 57.911 and because there are private parties who have interests

01:51 - 00.914 in the money

01:52 - 04.050 and the assets of the corporation,

01:52 - 08.955 that has certain ramifications for purposes of the federal constitution.

01:52 - 14.627 Here, it's we have an entity that was created by statute.

01:52 - 19.265 The General Assembly has attempted to not amend

01:52 - 22.635 a statutory framework that covers

01:52 - 25.972 a wide variety of different

01:52 - 27.841 corporate structures or corporate entities,

01:52 - 31.711 but rather laser focus in on the thing

01:52 - 35.548 that it's established in m care and say, okay,

01:52 - 37.383 now you're different

01:52 - 41.521 that we have a district court

01:52 - 44.858 that says because that entity is private,

01:52 - 47.694 you can't do that.

01:52 - 50.430 And what we're saying is we have to be able to do it

01:52 - 53.099 because that's what we that's what the General Assembly does.

01:52 - 56.469 It amends its laws in what it created.

01:52 - 02.175 It can it can therefore amend or it can repeal, as it has done with Georgia

01:53 - 05.311 back in 2002 and has it as it has done

01:53 - 08.915 with a variety of other insurance pools

01:53 - 12.886 on the

01:53 - 18.825 issue of

01:53 - 23.496 the M Care Act, I will also point out that

01:53 - 26.599 the statute again contemplates chair

01:53 - 29.702 ways, not just being another private insurance company.

01:53 - 31.171 It says that J.B.

01:53 - 35.141 is required to provide reasonable means for the health care providers

01:53 - 38.411 it ensures to transfer to the ordinary insurance market.

01:53 - 41.581 The idea being that

01:53 - 43.750 Georgia, you don't

01:53 - 47.720 we're going to tell you, you have to cover certain individuals

01:53 - 52.258 that originally we thought was going to be well, frankly,

01:53 - 55.128 back in the 1970s that the private market didn't want to touch.

01:53 - 58.665 And because that was affecting the number of

01:53 - 00.900 doctors in Pennsylvania,

01:54 - 04.470 we're going to establish a entity

01:54 - 10.610 or establish a plan that provides for the establishment of an entity

01:54 - 14.747 that ensures that we're going to repeal that in my care

01:54 - 18.551 and we're going to reestablish it.

01:54 - 22.655 There's been some discussion about this allusion.

01:54 - 25.725 Originally under the CAP Fund legislation, the commissioner

01:54 - 28.461 had that authority stroke of his or her pen.

01:54 - 29.462 It's gone.

01:54 - 34.200 It's re it's come back, reestablish the General Assembly in

01:54 - 36.903 my care said no, no, that's our call.

01:54 - 40.206 The law says you are established.

01:54 - 44.444 You don't to decide if you want to dissolve or not.

01:54 - 48.882 So so the plan and this I think this will be other litigation, right?

01:54 - 52.051 Because the original plan that was approved by the commissioner

01:54 - 57.457 establishing the way there was no separate new jury created, it was a continuation.

01:54 - 01.861 So the legislature essentially

01:55 - 05.398 nullified

01:55 - 08.101 the provision of the original Georgia plan

01:55 - 11.070 that talked about dissolution,

01:55 - 13.940 the original plan and is also

01:55 - 17.310 the current plan, talks about

01:55 - 19.178 and I'm

01:55 - 22.782 blanking on the exact term, but essentially

01:55 - 26.052 as the law provides under under the law.

01:55 - 28.254 Well you know if dissolution

01:55 - 30.890 doesn't refer to the board of directors of the jury with insurance

01:55 - 33.326 department approval. Yeah, it does.

01:55 - 34.260 It absolutely does.

01:55 - 36.562 But that's the original plan that was approved by the commissioner.

01:55 - 39.565 Under the law, the prevailed at the time? Yes.

01:55 - 40.166 The end.

01:55 - 44.938 You're saying that the General Assembly can later pass by legislation

01:55 - 47.941 something that nullifies the content,

01:55 - 53.446 that plan, that amends that.

01:55 - 55.615 Yes, amends the jury. Absolutely.

01:55 - 56.983 That's not what I said.

01:55 - 58.952 But but that nullifies the plan.

01:55 - 00.653 Originally approved by the commissioner.

01:56 - 03.856 I don't like the word nullified.

01:56 - 04.624 I know.

01:56 - 08.928 Well the the plan of operations

01:56 - 13.266 then was changed in response to the M Care Act being passed.

01:56 - 16.736 Georgia changed its plan of operations to acknowledge

01:56 - 19.939 m care to acknowledge that it is under a new statute.

01:56 - 22.909 So it didn't sue and say, you can't do that.

01:56 - 24.877 We're a private organization.

01:56 - 27.547 It said, yes, sir.

01:56 - 30.116 The Oh, come on, Mr. KIRKPATRICK.

01:56 - 31.451 It shows it's battle.

01:56 - 35.021 It didn't mean I mean, really, they made it they made a decision.

01:56 - 38.291 I mean, to say to say they were somehow

01:56 - 42.362 that that decision, an acknowledgment that they are subject

01:56 - 46.399 to the will of the General Assembly for all purposes isn't a stretch, isn't it?

01:56 - 49.535 Maybe it was just.

01:56 - 51.637 We're going to work with the General Assembly here.

01:56 - 54.307 Well, I wouldn't want to stretch, so I won't

01:56 - 56.909 have been involved in the

01:56 - 01.247 development of the new protocol in terms of lobbying and otherwise.

01:57 - 04.617 I mean, that's likely because, again,

01:57 - 07.620 they they are not just another insurance company.

01:57 - 10.256 They're an essential part of a regulatory regime

01:57 - 13.926 that exists to ensure

01:57 - 17.030 that the private market can't

01:57 - 20.700 exclude medical providers.

01:57 - 22.235 So again,

01:57 - 24.737 we sort of come back to

01:57 - 29.342 to this idea that is it public or private one?

01:57 - 32.645 And we would say that is a broader concept than just simply

01:57 - 36.349 are you a

01:57 - 39.752 agency of the Commonwealth for purposes of tax policy

01:57 - 43.289 on the uniform, unincorporated

01:57 - 46.259 nonprofit association laws and why this is important?

01:57 - 51.064 We want to make this clear and then we say this on page 46 of our brief.

01:57 - 54.400 We are not saying that the the G way

01:57 - 57.570 when it was created in 1975

01:57 - 00.573 couldn't act or sign contracts under its own name.

01:58 - 02.608 We're not saying that at all.

01:58 - 05.611 We recognize that the caps on legislation

01:58 - 08.815 provided the legal status it needed

01:58 - 12.351 because obviously at the time there was no

01:58 - 15.555 law that generally

01:58 - 19.292 allowed unincorporated associations to act under its own name.

01:58 - 21.928 I will note that in

01:58 - 25.565 with the passage of the Uniform Unincorporated Nonprofit Association's law

01:58 - 32.538 in September 2013, Section 9126, a one of that law says a person may not be

01:58 - 36.476 admitted as a member of an association without the person's consent.

01:58 - 39.712 And I want to focus on.

01:58 - 41.447 My friends

01:58 - 45.218 suggest in their brief that

01:58 - 48.988 joining Georgia is in fact voluntary because you can

01:58 - 52.959 just not do business in Pennsylvania if you don't want to do it otherwise.

01:58 - 56.095 We respectfully suggest that's sort of

01:58 - 59.198 the mentality perhaps

01:58 - 01.734 the Mafia has when they come into a store and say,

01:59 - 05.538 very nice business you have here, would be ashamed if something happened to it.

01:59 - 07.707 It's compulsory

01:59 - 08.474 there.

01:59 - 10.743 The person's consent.

01:59 - 14.213 There is no illusion of voluntary choice.

01:59 - 16.482 It's essentially jury duty.

01:59 - 21.921 If you want to sell this type of business, you must join the jury.

01:59 - 26.659 That is a power, I think, unique to Georgia.

01:59 - 30.363 Well, if you if you transact the business of insurance

01:59 - 34.300 in Pennsylvania, you have to pay premium tax. Yes.

01:59 - 38.671 But they don't say you have to pay premium tax to a specific entity.

01:59 - 40.173 You know, I'm just saying that

01:59 - 42.542 whether it's compulsory or not, I'm not sure it matters.

01:59 - 46.145 If you if you choose to engage in the insurance business in Pennsylvania

01:59 - 50.416 in the J you way pays premium tax by the way which you know

01:59 - 55.154 is interesting that they're public but they pay taxes to the public.

01:59 - 55.388 That's

01:59 - 58.024 their choice.

01:59 - 59.158 There's this.

01:59 - 00.660 Well, that's right. Exactly.

02:00 - 03.062 So so whether it's compulsory or not, I don't think it's

02:00 - 06.666 a differentiating factor of whether they're public or private.

02:00 - 10.236 Here's why I think it's important, Your Honor, because

02:00 - 13.739 if it wants to be decoupled

02:00 - 17.376 from the Commonwealth, it needs to have statutory

02:00 - 19.879 authorization.

02:00 - 23.916 It needs to say, okay, under uniform,

02:00 - 27.153 unincorporated nonprofit association law or under some other

02:00 - 32.792 understanding of what an association is.

02:00 - 36.529 The General Assembly was allowing the Commissioner to authorize

02:00 - 40.666 creation of a private entity and incorporated

02:00 - 46.806 or unincorporated entities separate from the regulatory regime.

02:00 - 50.743 An association has always been under common law and now under the

02:00 - 55.881 the nonprofit associations law always been understood as a voluntary

02:00 - 59.485 joining together by private parties for a common good.

02:00 - 02.288 This is compulsory.

02:01 - 06.592 This is not just a regular type of association is,

02:01 - 10.696 like I said, equivalent to jury duty in which the

02:01 - 14.166 Commonwealth says

02:01 - 17.403 if you want to play in Pennsylvania,

02:01 - 20.206 you have to join this and you have to participate.

02:01 - 24.677 And so the idea that this was just spun off

02:01 - 30.416 and lived separate from the regulatory regime

02:01 - 33.352 since its inception, I think is a historical

02:01 - 37.556 and any other questions

02:01 - 39.592 would you like to wrap up or was that it

02:01 - 42.828 sounded like a wrap up to me.

02:01 - 44.630 I think that was a pretty good wrap up, Your Honor.

02:01 - 46.599 Thank very much.

02:01 - 49.101 I want to thank you all, Mr.

02:01 - 49.902 McKeon, Mr.

02:01 - 51.470 Myers, Mr.

02:01 - 52.672 Kirkpatrick and Ms..

02:01 - 55.141 Hogan, those were excellent presentation.

02:01 - 57.510 And today I'll take it under advisement.

02:01 - 01.681 Up next to the argument in Bold versus Commonwealth,

02:02 - 04.750 the Pennsylvania Department of Transportation Bureau

02:02 - 09.021 of driving licensing statutory interpretation case involving Section

02:02 - 12.758 1547 of the vehicle code, commonly referred to

02:02 - 17.596 as the implied consent law section 1574 permits chemical testing of motorists.

02:02 - 21.901 If a police officer has reasonable grounds to believe the person had been driving,

02:02 - 25.671 operating or an actual physical control of the movement

02:02 - 28.741 of a vehicle while intoxicated, this appeal focused

02:02 - 32.044 on the phrase actual physical control of the movement of a vehicle.

02:02 - 35.781 Police officer found a motorist passed out of the driver's seat

02:02 - 39.118 as per car outside a restaurant in a mall parking lot

02:02 - 42.121 slumped over the wheel with the engine running and headlights on.

02:02 - 45.758 The officer had to open the driver's door, shut off the engine,

02:02 - 48.027 then wake the motorist.

02:02 - 49.562 Once the motorist awoke,

02:02 - 52.932 the officer immediately smelled alcohol in the motor, Suppress observed.

02:02 - 56.635 He appeared, quote, obviously intoxicated, close quote.

02:02 - 01.440 The motorist had difficulty producing driver driver's license, registration

02:03 - 05.010 and proof of insurance could follow instructions with regard

02:03 - 08.013 to field sobriety testing and refused chemical testing.

02:03 - 11.550 The apartment suddenly notified the motorist that it was suspending

02:03 - 15.388 his operating privileges as a result, his failure to submit to chemical testing

02:03 - 18.190 and motorist appealed his suspension to the trial court.

02:03 - 21.494 The court found the officer did not have reasonable grounds

02:03 - 24.063 to believe that the motorist was controlled and movement of the vehicle

02:03 - 27.633 at the time of his arrest for DUI and sustain the appeal

02:03 - 31.837 on review, the Commonwealth Court reversed the comment.

02:03 - 34.073 Court observed that the test a police officer

02:03 - 38.010 had reasonable grounds to believe that a motorist was an actual physical control.

02:03 - 41.747 The movement of a vehicle was intoxicated is not very demanding.

02:03 - 43.716 A court must consider the

02:03 - 46.719 totality of the circumstances,

02:03 - 51.257 including the location of the vehicle, whether it was running plying that test.

02:03 - 55.027 The Commonwealth Court held the court erred as a matter of law in determining

02:03 - 57.229 that the officer lacked reasonable grounds to believe

02:03 - 59.532 that the motorist was in actual physical control.

02:03 - 02.701 The movement as a vehicle while intoxicated.

02:04 - 05.971 Reaching this conclusion, the Commonwealth Court noted in its prior

02:04 - 09.008 case law has often inflated the terms operates

02:04 - 12.211 and the freeze is an actual physical control.

02:04 - 16.782 The movement of a vehicle as those terms are used in section 1547,

02:04 - 19.051 according to the Court,

02:04 - 22.188 this is in gender confusion in cases concerning whether police officer

02:04 - 24.523 has reasonable grounds to believe that a motorist

02:04 - 27.159 was an actual person control of the movement of a vehicle.

02:04 - 30.596 When the officers testifies and the facts indicate

02:04 - 33.165 that the had not been driving the vehicle,

02:04 - 37.503 the motorist appealed to the Supreme Court and the Supreme Court except to review.

02:04 - 40.840 The motorist argues in his briefs that the Commonwealth Court departed

02:04 - 43.008 from a long line of control decisions

02:04 - 46.312 that required evidence showing that the motorists had actually driven the vehicle

02:04 - 48.314 to establish actual physical control.

02:04 - 52.117 The movement of the vehicle for purposes of Section 47

02:04 - 56.088 partment disagrees, contending that the court properly held

02:04 - 00.793 that the terms driving, operating and in actual fact controlled

02:05 - 04.763 the movement of a vehicle in section 1547 must have different meanings

02:05 - 08.133 and cannot be conflated in determining whether a police officer

02:05 - 11.470 had reasonable grounds to believe that a person committed DUI.

02:05 - 15.774 Let's watch and listen to the oral argument in Bold versus Commonwealth.

02:05 - 19.411 Pennsylvania Department of Transportation Bureau of Driving

02:05 - 22.648 Licensing.

02:05 - 25.317 Our next case would you call it a misdemeanor

02:05 - 27.486 civil junior

02:05 - 30.623 versus PennDOT presenting this proposal, Mr.

02:05 - 34.360 Edwards junior representing

02:05 - 36.896 in this discretionary appeal.

02:05 - 40.733 A police officer found appellant passed out

02:05 - 44.336 while sitting in the driver's seat of his vehicle, which was legally

02:05 - 47.640 parked with its engine running and headlights on.

02:05 - 51.710 The officer suspected appellant was intoxicated,

02:05 - 56.382 but appellant refused to allow a blood draw to test his alcohol content,

02:05 - 00.719 ultimately resulting in the suspension of his driver's license.

02:06 - 06.258 We accepted review to address whether under these circumstances

02:06 - 11.797 appellant was driving, operating or in actual physical control

02:06 - 15.601 of the movement of vehicle for purposes of license

02:06 - 19.572 suspension provisions of the implied consent law.

02:06 - 21.373 Thank you.

02:06 - 23.876 Good afternoon, Madam Chief Justice. Justices.

02:06 - 24.777 Mr. Edwards.

02:06 - 28.013 My name is Attorney Ed Spray on behalf of Thomas Bald, the appellant.

02:06 - 29.515 In this case, Mr.

02:06 - 32.418 Bold position is that the Commonwealth Court aired

02:06 - 36.889 when ruled that the Commonwealth was able to establish

02:06 - 40.125 that they had reasonable grounds to suggest that he was in operation

02:06 - 43.329 of a motor vehicle while under the influence of alcohol,

02:06 - 45.230 and that this was in direct

02:06 - 48.000 contravention to

02:06 - 51.036 existing case law of this court in that area.

02:06 - 54.907 That requires a showing that the operator, the vehicle actually drove

02:06 - 58.544 the vehicle prior to coming into contact with law enforcement.

02:06 - 02.615 It was an uncontested fact in this case that the officer,

02:07 - 05.618 when he arrived at the scene, found him in his car parking lot

02:07 - 11.056 and that he, the officer, credibly testified that he had no question that Mr.

02:07 - 15.060 Bode actually exited the bar, got into the vehicle, started the vehicle

02:07 - 18.330 where he was found without ever having driving, had driven that vehicle.

02:07 - 22.101 And the case is that this court has decided

02:07 - 25.738 started with Commonwealth De Beers, which is a Superior Court case

02:07 - 29.541 where the Superior Court found that there must be a showing

02:07 - 31.410 for actual physical control,

02:07 - 34.980 that an individual drove the vehicle prior to having contact with the police.

02:07 - 39.685 The bias case was adopted by this court in a criminal context

02:07 - 41.920 and Commonwealth will then,

02:07 - 46.625 and it was also adopted in a license suspension appeal in Banner V,

02:07 - 49.561 the Department of Transportation Bureau of Drivers Licensing,

02:07 - 53.132 where this court specifically found that actual physical control

02:07 - 57.269 requires a showing that the driver, the motor drove

02:07 - 01.640 the vehicle prior to coming into contact with the police.

02:08 - 03.776 In the banner case, the court found that

02:08 - 07.513 the line must be drawn to distinguish circumstances

02:08 - 10.382 where a person drove while under the influence

02:08 - 14.520 which the statute was intended to prevent, as opposed to circumstances

02:08 - 17.523 where the defendant is physically in a vehicle

02:08 - 20.225 after becoming intoxicated, which is what we had.

02:08 - 20.893 And this case

02:08 - 22.961 needs

02:08 - 26.799 to be sustained because that is the car

02:08 - 32.004 that athletes

02:08 - 35.908 are staying on.

02:08 - 37.142 Because how

02:08 - 41.013 it differs in the fact

02:08 - 44.583 as to whether the yes, in that case, he was sleeping along the roadway.

02:08 - 45.651 The engine was off.

02:08 - 46.518 The lights were off.

02:08 - 49.054 Where in this case, he was sleeping in a vehicle with it running.

02:08 - 53.225 But as the court defined actual physical control shows and showing

02:08 - 55.294 that the person drove, there should be a finding that

02:08 - 57.296 the person drove the vehicle prior that.

02:08 - 00.799 So I think the argument that can be made would

02:09 - 04.503 and to be looked at depends on the facts of the circumstances.

02:09 - 08.373 Whether a vehicle is on or a vehicle is off may not necessarily

02:09 - 11.610 whether the person was not claiming the wheel

02:09 - 15.380 or body, the other persons in the passenger seat.

02:09 - 17.116 That is not.

02:09 - 20.586 And I think in those circumstances it still hinges on whether or not

02:09 - 26.258 the Commonwealth can establish the person drove the vehicle prior to police contact

02:09 - 29.461 opposed to the location of where they are in the vehicle.

02:09 - 35.768 The fact that I sit behind the driver's seat of the vehicle in terms of the

02:09 - 38.270 start and calm

02:09 - 42.808 operation. So

02:09 - 49.081 it shows that you have an aspect of control.

02:09 - 53.952 However, the existing case law that deals with these situations all lay out

02:09 - 58.190 that you need more than just that aspect to get for it

02:09 - 02.761 to get a conviction for driving under the influence of alcohol, which is required

02:10 - 05.164 under 5047.

02:10 - 08.734 He might have just wanted to have the heater on the heater on the air

02:10 - 14.773 conditioning on the analogy I made with the Commonwealth Court was Saturday

02:10 - 18.510 afternoons up in State College where all the individuals have RVs.

02:10 - 22.648 It's not uncommon for the individual to consume alcohol

02:10 - 23.782 at the tailgates to start up.

02:10 - 25.651 There are these after the game

02:10 - 28.453 to stay in an RV, to sleep it off or to run a generator,

02:10 - 32.024 whatever the case may be, where that's situation that the vehicle's

02:10 - 34.793 being turned on with no intention to ever drive that vehicle.

02:10 - 38.130 What did the what did the General

02:10 - 43.302 Assembly mean, in your judgment, when it used the terms

02:10 - 48.207 actual physical control of the movement of a vehicle?

02:10 - 52.644 Well, with the Byers case is that in 1992,

02:10 - 55.380 that's when that amendment was added by the General Assembly.

02:10 - 59.151 Prior to 1992, the language actual physical control

02:10 - 03.188 was not part of the statute that was added in 1990, 1982, rather.

02:11 - 06.258 And what the Byers Court, the Superior Court found in

02:11 - 10.395 that was that it was added to cover circumstances where.

02:11 - 14.800 People drove a vehicle prior to coming into police contact

02:11 - 17.870 where the for instance, if someone's found on the side of the road

02:11 - 22.574 miles from a bar engine running, no inclination that they parked

02:11 - 25.677 the vehicle there and walked miles back and forth to the bar.

02:11 - 29.548 But when the police come across a vehicle, it's on the side of the road.

02:11 - 34.052 And all indications the person drove there that the buyer's court

02:11 - 38.190 indicates that that's why actual physical control was added in 1982

02:11 - 42.060 to account for those circumstances where the person drove before

02:11 - 43.495 the police got there.

02:11 - 46.064 However, the police did not see them actually moving the vehicle.

02:11 - 49.902 So it's a reasonable inference test.

02:11 - 54.072 It was a reasonable inference test as to whether there had been movement recently.

02:11 - 55.774 Prior? Yes.

02:11 - 57.576 While the person was intoxicated. Yes.

02:11 - 00.746 And I believe that's the way the court at that and has looked at these cases

02:12 - 03.649 and both sides through the Superior Court.

02:12 - 07.185 There's numerous cases and and there are Commonwealth Court cases

02:12 - 11.156 that also deal as well as Supreme court cases in situations where people

02:12 - 15.227 were not found actually moving the vehicle with the vehicle in motion.

02:12 - 18.931 So then it was Judge Levitt's view on in dissent that the commonwealth.

02:12 - 21.900 And yes, Judge Levin's view was that the

02:12 - 25.537 the court, the Commonwealth Court, the majority erred in

02:12 - 28.407 following the finance case when it should have found

02:12 - 32.444 follow the banner case, as well as the Commonwealth Court's

02:12 - 36.081 own decision in Solomon V Bureau of Driver's

02:12 - 39.418 Licensing.

02:12 - 45.991 The problem is, I mean, there's these three statutory things of circumstances

02:12 - 50.929 that we have to give meaning somehow, someway to all three of them. And

02:12 - 55.000 I'm trying to figure out whether yours is a statutory

02:12 - 58.270 construction case or you're simply saying the predicate facts

02:12 - 01.640 known to the police officer at the time were not there such

02:13 - 05.377 that he should have even been asking for the invocation

02:13 - 08.680 of implied consent, the predicate facts that seem to be undisputed

02:13 - 12.284 here is the guy came out of the bar he was never in.

02:13 - 13.785 He never drove the vehicle

02:13 - 16.955 and therefore never could have been accused of drunk driving

02:13 - 19.992 and that could end the case

02:13 - 23.628 without us even examining the statutory construction.

02:13 - 26.331 In some ways, I.

02:13 - 27.566 Mr. Bode would argue that, yes.

02:13 - 28.633 So that would be the case

02:13 - 30.502 that we never got to that level

02:13 - 34.673 because 1547 of the vehicle code requires that there be a showing

02:13 - 40.312 that an officer had reasonable belief that the motorist, 32 of the vehicle code

02:13 - 43.682 and the reasonable belief is one of those three circumstances

02:13 - 47.652 that the fact that the driver was either driving or operating

02:13 - 51.390 or in control of the movement, actual physical control.

02:13 - 56.461 And so driving, I think we all know what that is or actual physical control.

02:13 - 58.930 You mean past tense

02:14 - 00.665 meaning

02:14 - 03.735 at some point in time had actual physical control over the movement?

02:14 - 06.872 That's the way that the buyer's court seems to

02:14 - 09.474 define that, yes.

02:14 - 12.210 Then how would you define operating?

02:14 - 14.913 I think an operate would be more than just

02:14 - 18.450 because operating vehicle could be

02:14 - 20.719 putting the windows down, turning on a radio.

02:14 - 24.990 It has to be more than just having some sort of

02:14 - 30.529 control of the physical, more than just putting a windows down,

02:14 - 36.601 opening the door, pushing a key fob that would start the engine remotely.

02:14 - 38.170 Why does it have to be more than that?

02:14 - 42.007 I mean, what what about the statutory language

02:14 - 45.210 are you relying on that

02:14 - 48.547 requires us to interpret the word operating so narrowly?

02:14 - 51.650 And I think would be a combination of

02:14 - 56.788 the the combination of all the factors.

02:14 - 58.690 And I'm not sure

02:14 - 03.361 I'm trying to think the best way to answer that question. It.

02:15 - 07.365 But when I view the existing case law that deals with operate,

02:15 - 10.502 operate has always been found and I can't come

02:15 - 14.072 I don't have the case off the top of my head but operate has always required

02:15 - 17.576 more than just sitting behind the wheel of a vehicle.

02:15 - 19.277 I think we're here because the case law

02:15 - 23.548 is not very clear on on on what operate means.

02:15 - 25.684 Again, I think I think it's

02:15 - 27.886 I think it's very clear on what drive means.

02:15 - 32.424 I think it's somewhat clear on the movement question.

02:15 - 36.061 I think, though, the operating is really where

02:15 - 40.832 it can't be drive, right?

02:15 - 43.902 Because it can't be it can't be something that is,

02:15 - 47.739 you know, the General Assembly doesn't mean to say the same thing twice.

02:15 - 49.141 It can't be what you said.

02:15 - 52.377 Meaning at some point in time, having had control

02:15 - 56.014 over the movement, it has to be something else.

02:15 - 59.985 So without telling me whether it was driving

02:15 - 03.755 or had mood control or what, what would we what facts were,

02:16 - 07.192 we have to have to prove operating something more

02:16 - 10.262 than being behind the wheel of a vehicle while it started something

02:16 - 14.132 with an individual trying to take steps to move the vehicle.

02:16 - 18.603 For instance, I believe by that time he's drunk.

02:16 - 22.107 Well, there's a situation, I think, that comes to mind that there's

02:16 - 26.411 the James case that the Commonwealth cites in its brief,

02:16 - 31.049 where a vehicle, a car was in the process of being towed.

02:16 - 33.185 If I recall the facts specifically in the person

02:16 - 36.388 saw that the car was being towed and got into the car

02:16 - 40.192 to get away from the tow truck, but was not able

02:16 - 43.261 to based on the fact that he the vehicle was hooked up to the tow truck.

02:16 - 44.763 That wouldn't be driving, I would think.

02:16 - 46.064 Well, in that situation,

02:16 - 49.201 it could be argued that the vehicle never actually moved on the road.

02:16 - 50.835 It was attempted to move.

02:16 - 51.970 So in that

02:16 - 55.907 that could be where the operation comes into play, that he started up a vehicle

02:16 - 58.810 attached to a tow truck, if again, if I'm remembering the facts correctly

02:17 - 02.581 and then attempted to pull it off

02:17 - 07.018 the tow truck, but was unsuccessful because it was attached to that object.

02:17 - 09.821 So in that situation, they were operating as attempted driving.

02:17 - 12.857 I in some circumstances, I think it could be.

02:17 - 19.998 Could you give us any other examples of where is not driving?

02:17 - 22.801 I'd have to rack my brain to come up with something. So off the top of my head. No.

02:17 - 24.903 And if I. I don't want to belabor that.

02:17 - 27.272 Why I try to brainstorm an idea.

02:17 - 29.007 Well there's Valentine.

02:17 - 30.675 Did you read The Valentine to Valentine?

02:17 - 34.112 Valentine was the civil tort case that the Commonwealth relied on where

02:17 - 36.548 a vehicle was parked on the side of the road.

02:17 - 41.419 And I know the Commonwealth declined to extend it

02:17 - 45.223 to the depth of the tour definition of

02:17 - 48.660 outlined in Valentine, where the vehicle was parked on the side of the road.

02:17 - 51.863 And I think the Commonwealth Court in a footnote mentioned,

02:17 - 54.399 I think that's where the operating

02:17 - 57.235 the windows up and down came into play if I recall correctly.

02:17 - 01.172 Yeah, I, I want to come back to Justice Robson's

02:18 - 03.508 line of questioning because

02:18 - 06.611 putting aside

02:18 - 10.515 Commonwealth Court and Superior Court decisions of the past for a moment

02:18 - 13.351 and focusing on the word operate

02:18 - 16.721 and taking into account our opinion

02:18 - 22.093 in Valentine,

02:18 - 26.464 can you tell us why we should not construe operating

02:18 - 30.268 under this operates under statute

02:18 - 34.639 to include circumstances where somebody turns the ignition

02:18 - 38.410 on whether with a key or a button, it turns the heat on

02:18 - 41.313 because

02:18 - 44.582 which side of the line should we fall on and why?

02:18 - 48.820 I would suggest that you would fall on on the side of the person.

02:18 - 51.022 That situation is attempting to sleep it off.

02:18 - 55.527 And there are cases where the court has talked about that, including buyers.

02:18 - 57.495 And that's

02:18 - 00.165 something that the banner that this court addressed in Banner

02:19 - 04.235 when it said that is important to have a line drawn

02:19 - 07.472 to distinguish circumstances where a person drove under the influence

02:19 - 11.910 which the statute was intended to prevent, as opposed to someone who physically

02:19 - 15.680 entered a vehicle while they were intoxicated and while they were impaired.

02:19 - 18.650 And Officer Gilmer testified here that he

02:19 - 25.590 his deduction was what his deduction was, that

02:19 - 28.827 the individual left, the establishment entered his car

02:19 - 33.331 and turned on the start of the vehicle just to sleep it off

02:19 - 37.435 because it was a cold night, turned on the heat.

02:19 - 40.305 And that was a fact that was essentially admitted to the officer.

02:19 - 41.473 And you said, yeah, that's

02:19 - 43.742 I don't doubt in my mind that that's what this person was doing.

02:19 - 47.512 And so so you're propos again, your proposed definition would operating

02:19 - 51.716 means anyone that starts a car with a specific intent of driving it

02:19 - 54.519 or something more than

02:19 - 58.356 than just what turning on the heat or the air conditioner or putting down

02:19 - 02.260 the windows are turning on the driving intent is what you want us to focus on.

02:20 - 04.629 There has to be an intent

02:20 - 08.133 of some sort to operate the vehicle for purposes of driving it,

02:20 - 12.404 not for some other purpose, which makes it a truly factual inquiry.

02:20 - 16.708 If there ever if it comes and most of these cases are very facts

02:20 - 20.111 specific based on location of the vehicle engine running,

02:20 - 23.214 whether a person slumped over the wheel or slumped over the passenger seat

02:20 - 27.485 or received being reclined as opposed to sitting up in a in an address.

02:20 - 30.588 Your facts are different a little bit because of the situation with the officer

02:20 - 33.091 basically saying, yeah, I believe he slept it off in the car.

02:20 - 37.295 The other cases that we see a lot or we saw saw a lot of the Commonwealth Court

02:20 - 39.931 are the cases where the car is on the side of the road, the engine's running

02:20 - 41.933 and the person is slumped over the wheel or,

02:20 - 44.402 or even of an antique case, which is what the Commonwealth Court

02:20 - 47.672 relied on, where the person found outside a drinking establishment.

02:20 - 50.708 But the Commonwealth Court in that decision found

02:20 - 54.512 that a reasonable inference could be that the Nancy drove to that location

02:20 - 57.515 but was too impaired, exit his vehicle and enter the establishment.

02:20 - 59.918 Whereas here Officer Gillnet

02:21 - 03.621 testified that

02:21 - 08.426 that he concluded or believed that the guy had come out of command, his turn

02:21 - 12.030 the heat on and was trying to sleep it off as that had no intent to draw.

02:21 - 12.964 Exactly.

02:21 - 18.603 That was let me let me ask you this, if I may.

02:21 - 22.440 Should we attribute significance to the fact

02:21 - 24.576 that the statute uses the words

02:21 - 32.083 in actual physical control of the movement of a vehicle,

02:21 - 37.188 as opposed to in actual physical control of the vehicle in other words,

02:21 - 39.991 there could be no dispute that, I guess,

02:21 - 43.828 unless he was totally unconscious, that

02:21 - 47.565 that he was in actual physical control of the vehicle.

02:21 - 50.001 Right. I mean, he was sitting in the driver's seat.

02:21 - 52.470 Would you maintain that he did not have physical control

02:21 - 55.173 of the movement of a vehicle or may off on a wrong tangent?

02:21 - 57.842 And he wasn't right.

02:21 - 59.511 He was sleeping it off when the officer arrived.

02:21 - 00.512 Yeah, that was.

02:22 - 03.348 And that's

02:22 - 06.618 where I rely on you because actual physical

02:22 - 10.622 seems to be a rather broad concept when you think about the

02:22 - 14.325 different concepts which with operate in actual physical control.

02:22 - 18.730 And that's what I rely on the Byers case, where define actual physical control

02:22 - 22.500 to deal with specific circumstances where the person drove before

02:22 - 26.404 and that there's a requirement to show that the person drove and specifically.

02:22 - 30.074 1547 It's important to note that

02:22 - 35.747 prior to 1990 or prior to 2003, the language

02:22 - 36.948 was that a person,

02:22 - 40.418 an officer had reasonable grounds to believe that the person drove, operated

02:22 - 43.588 or was in actual physical control while under the influence of alcohol.

02:22 - 46.891 That change in 2003 where the language now

02:22 - 50.628 well in violation of 3802

02:22 - 51.763 and that seems

02:22 - 53.298 that it's a different standard

02:22 - 55.533 at least we would argue that that's a different standard.

02:22 - 58.670 Well, the language that still is used by the courts, including

02:22 - 01.039 I use it in my brief the Commonwealth Court used

02:23 - 03.708 it was the language about while under the influence.

02:23 - 05.810 But I think we need to take it a step further.

02:23 - 09.948 Say while in violation of 32 two DUI, which requires

02:23 - 13.818 of showing the person who was with violated

02:23 - 17.322 the 32 section driving under the influence alcohol

02:23 - 21.125 in the order into the violate 32 two you actually act to drive the vehicle

02:23 - 28.466 as required by Wolin and Byers, except

02:23 - 31.202 that the implied consent law serves a different purpose.

02:23 - 35.873 What I believe that's addressed by by banner.

02:23 - 38.910 Well we're banner this court in a license suspension

02:23 - 41.813 implied consent case indicated that there must be a line drawn

02:23 - 44.582 to distinguish between the two circumstances.

02:23 - 52.624 Any other questions?

02:23 - 54.959 Thank you. Thank you.

02:23 - 55.593 Hear from Mr.

02:23 - 57.729 Edwards.

02:24 - 04.502 Good afternoon, Chief Justice

02:24 - 08.373 Todd and justices of the Supreme Court of Pennsylvania.

02:24 - 09.307 May it please the court.

02:24 - 12.877 I am Terrance M Edwards Governor's Office of General Counsel

02:24 - 15.146 representing the Commonwealth of Pennsylvania

02:24 - 18.216 Department of Transportation Bureau of Driver Licensing.

02:24 - 19.117 Thanks.

02:24 - 21.719 The court has hit the nail on the head with its questions.

02:24 - 24.422 This is a statutory construction case,

02:24 - 28.326 so there's two sections of

02:24 - 31.629 from the rules of statutory construction I cite to the court.

02:24 - 36.234 First is one section 1920 1c5

02:24 - 39.404 that says When the words of a statute are not explicit,

02:24 - 42.707 the intention of the General Assembly may be ascertained

02:24 - 46.411 by considering, among other matters, the former law,

02:24 - 49.947 any including other statutes, upon the same or similar subjects.

02:24 - 52.116 The other is one

02:24 - 57.055 Section 1922 two, which provides ascertaining

02:24 - 01.092 the intention of the General Assembly and the ACT enactment of a statute.

02:25 - 05.596 The following presumptions, among others, may be used that the General

02:25 - 08.833 Assembly to tie entire statute to be certain

02:25 - 11.803 in the 1959 vehicle code,

02:25 - 18.109 and this was former 75 Section six, 24.1,

02:25 - 21.479 which was the implied consent in the 59 vehicle code.

02:25 - 26.250 It spoke of a person shall not

02:25 - 30.354 our person who operates a motor vehicle and a police officer

02:25 - 33.424 having reasonable grounds to believe the person to have been driving while

02:25 - 37.628 under the influence of intoxicating liquor violates the implied consent law.

02:25 - 39.030 If he or she refuses

02:25 - 43.234 the act of June 17th, 1976,

02:25 - 47.739 which enacted the current vehicle effective in 1977,

02:25 - 51.843 and it provided that

02:25 - 56.380 the any person who operates a motor vehicle

02:25 - 59.984 in this Commonwealth shall have, and they also have reasonable grounds

02:25 - 01.419 to believe the person

02:26 - 04.622 to have been driving a motor vehicle while under the influence of alcohol.

02:26 - 07.892 The language was the same for both.

02:26 - 10.328 However, there was one big change

02:26 - 16.200 with the 76 version in the 59 vehicle code.

02:26 - 20.338 A person was not allowed to operate a vehicle while under the influence.

02:26 - 23.341 The 1976 version

02:26 - 26.077 provided that you a person not drive.

02:26 - 29.881 As the Commonwealth Court indicated in the final decision,

02:26 - 32.750 which is cited in our brief.

02:26 - 35.620 There apparently was a problem with that, primarily

02:26 - 38.823 because the criminal courts were construing the word drive

02:26 - 42.360 much more strictly than the word operate.

02:26 - 46.030 And consequently, in 1982, as Mr.

02:26 - 53.304 three alluded to, the act of December 15th, 1982, changed

02:26 - 56.440 both the law and the implied consent

02:26 - 00.378 law to provide that any person who drives, operates

02:27 - 03.181 or has an actual physical control of a motor vehicle

02:27 - 07.919 shall agree to or shall be deemed to have given consent.

02:27 - 11.422 If a police officer has reasonable grounds to believe the person

02:27 - 16.661 drove, operated or was in actual physical control of the motor

02:27 - 20.731 vehicle while in violation of the DUI law, could I interject there?

02:27 - 21.599 Certainly.

02:27 - 24.969 It still takes us back to the nub of this

02:27 - 28.840 case.

02:27 - 33.144 I mean, in other words, a little bit question begging, because it still circles

02:27 - 38.015 back to the question of of how we apply

02:27 - 42.086 the legislature's words to these facts.

02:27 - 45.423 So the facts as we have them and correct me if I'm wrong,

02:27 - 50.061 is that the the officer testified that

02:27 - 53.898 that consistent with

02:27 - 55.967 bolds testimony,

02:27 - 58.803 he got drunk, went up to the car,

02:27 - 02.940 turned it on to sleep, it off with the heat on.

02:28 - 06.677 Do we if to the extent we're trying to channel

02:28 - 11.249 the General Assembly's intent, do we do we want to think that they wanted

02:28 - 15.620 to encourage people to sleep it off and not drive?

02:28 - 19.657 I'm just trying to imagine what a reasonable legislator

02:28 - 21.759 would have intended here.

02:28 - 24.962 Your Honor, our position is that

02:28 - 27.131 there are three terms

02:28 - 29.400 and justice problems alluded to this

02:28 - 33.804 drive operate actual physical control of movement of a vehicle

02:28 - 36.908 in accordance with the rules of statutory construction.

02:28 - 39.410 They can't all mean the same thing.

02:28 - 42.313 Each one of them has to have a separate meaning and. I

02:28 - 46.784 well, I went work for PennDOT in 2000.

02:28 - 50.588 I research and write briefs primarily

02:28 - 53.557 for Commonwealth Court, occasionally for this esteemed court as well.

02:28 - 56.694 I read at least 20 chemical

02:28 - 59.897 test refusal rates a year over 23 years.

02:28 - 01.532 That's over 400 of them.

02:29 - 04.602 This is the first time I have ever seen a police

02:29 - 07.638 officer credibly, candidly testify.

02:29 - 12.610 I did not believe the person was drunk and drove the vehicle after getting drunk.

02:29 - 15.279 And I give Officer Jelinek credit for that.

02:29 - 19.116 But he also testified that the reason he arrested Mr.

02:29 - 24.255 Ball for DUI was because he believed was in actual physical control of the movement

02:29 - 29.527 of the vehicle because he was drunk, apparently passed out in the driver's seat

02:29 - 32.730 with the engine running and with the lights on himself.

02:29 - 34.899 There's some danger to just staff.

02:29 - 36.867 But we can say, well,

02:29 - 40.071 you want to sleep it off, you sit in the car and put the heater on.

02:29 - 43.107 You're not really operating the control car.

02:29 - 45.443 You're not really in control of what happens.

02:29 - 49.747 But if the car is on, you could in your drunkenness,

02:29 - 55.019 I guess you could bump the gearshift, you could hit the gas pedal,

02:29 - 58.189 you could do a lot of things that could put someone in danger.

02:29 - 59.724 Absolutely, your honor.

02:29 - 02.326 That's there's no question about it in this case.

02:30 - 04.228 And again, if you're a sound sleeper,

02:30 - 08.499 I've been there myself, but that's another story.

02:30 - 09.867 Counsel Yes, Your Honor.

02:30 - 14.138 The question I have is, we seem to be forgetting

02:30 - 18.409 that the word movement is within the statute.

02:30 - 23.180 I read your brief and I didn't find anywhere where

02:30 - 29.220 there was some evidence of the actual movement of the car.

02:30 - 33.524 Can you share with me where I must have missed that part in your brief?

02:30 - 37.695 Well, Your Honor, if you share with me, other than the credible officer's

02:30 - 42.433 testimony, was that he was drunk and sleeping, sleeping it off.

02:30 - 46.237 You have it appears that you have,

02:30 - 50.508 you know, removed the word movement and just said he was

02:30 - 54.678 actual physical control of the car, but that's not the statute.

02:30 - 58.616 So share with us where this movement occurred. It

02:31 - 02.119 does not have to does not.

02:31 - 06.290 There is no requirement for movement in actual physical control of the movement.

02:31 - 09.994 It's the control is is the operative word, not movement.

02:31 - 14.365 And I, I knew the court was going to ask, but tell me where where

02:31 - 15.499 where do you get that?

02:31 - 17.835 It does not say

02:31 - 19.737 we decide what.

02:31 - 20.638 Yes, you do.

02:31 - 24.041 So I'm asking you share with us why this court

02:31 - 26.677 should not follow the strict construction of the statute

02:31 - 31.348 and have some evidence proffered that that car was moved.

02:31 - 36.087 Again, Your Honor, that statute does not require movement.

02:31 - 37.621 It doesn't say that.

02:31 - 40.825 It says physical control

02:31 - 43.794 of the movement, of

02:31 - 46.664 actual physical control of a vehicle,

02:31 - 48.966 the movement, the actual

02:31 - 51.769 transportation.

02:31 - 55.139 Our position and

02:31 - 58.609 the term actual physical control of the movement of the vehicle

02:31 - 02.379 has not been clearly defined by any of the appellate court.

02:32 - 06.417 And I go through different cases in one court.

02:32 - 10.121 Actual physical controls, same as operating.

02:32 - 13.324 In other cases, it's the same as driving.

02:32 - 16.260 I would submit the department would submit that

02:32 - 19.830 actual physical control of the movement of a vehicle means

02:32 - 24.702 a person who is under the influence of alcohol or controlled substance

02:32 - 30.774 and starts the engine of a vehicle while in position, be able to cross the to move.

02:32 - 32.877 That's where the movement part would come in

02:32 - 36.113 is in actual physical control of the movement of the vehicle

02:32 - 39.884 and therefore is in violation of section eight or two of the vehicle.

02:32 - 43.654 Mr. Edwards Is it a completely different case?

02:32 - 48.125 If the guy comes out of the bar, he's drunk, he's called

02:32 - 49.827 he wants to sleep it off.

02:32 - 53.731 He goes into his car and turns it on, turns the engine on,

02:32 - 56.967 but then sleeps in the passenger seat.

02:32 - 59.170 Is it a completely different case?

02:32 - 00.571 That's a tougher question.

02:33 - 04.408 I would if I thought Your Honor was going to say, crawls into the back seat

02:33 - 08.746 and falls asleep in that case, again under the definition

02:33 - 11.882 we propose that the court should adopt.

02:33 - 15.152 In that case, no, there wouldn't be actual physical control,

02:33 - 18.422 not because of the lack of movement, but because he's

02:33 - 22.259 not in a position to start the car going anywhere.

02:33 - 23.160 But he was.

02:33 - 28.899 My my hypo is he started to warm it up and then reclined in the passage.

02:33 - 29.333 Yeah.

02:33 - 32.636 That would be different than banter because again in banter

02:33 - 35.539 the keys in the ignition, the engine wasn't on.

02:33 - 37.441 And he Mr.

02:33 - 39.643 was in the passenger seat.

02:33 - 42.513 It might have this court might have come up with a different

02:33 - 46.917 analysis in banter if in that situation. Mr.

02:33 - 49.086 Banner was in the passenger seat.

02:33 - 52.623 But he's like passed out engines running.

02:33 - 55.359 My concern and I think our

02:33 - 58.762 concern would be someone in that condition

02:33 - 02.866 can very easily move a car by mistake,

02:34 - 05.703 not intending to

02:34 - 10.140 police officer comes, knocks on the window, tries to wake him up.

02:34 - 12.643 He's startled. He wakes up.

02:34 - 15.679 He said, Well, I need to go somewhere.

02:34 - 16.380 I've got to.

02:34 - 17.448 That's right.

02:34 - 20.884 It's well, he has to put it in gear again so that it doesn't

02:34 - 23.954 that defy the fact that the car's an actual movement.

02:34 - 26.790 So you want to criminalize

02:34 - 28.959 someone with this potential

02:34 - 32.096 of actual movement based upon a hypothetical?

02:34 - 33.831 No, Your Honor.

02:34 - 36.500 The statute says it's a movement you're saying.

02:34 - 40.804 Well, we have to suppose that possibly that he could,

02:34 - 44.475 in a knee jerk reaction, touch the gas

02:34 - 49.713 and move the vehicle, which in effect would trigger the statute.

02:34 - 54.084 But the individual who got outside Fremont went to sleep in the car,

02:34 - 56.620 whether it was the front, the passenger or the back,

02:34 - 59.890 just fell asleep and there's no movement.

02:35 - 02.393 See, it's different, don't you think?

02:35 - 03.694 Share with me.

02:35 - 06.630 Is there a difference between turning the ignition on

02:35 - 10.634 and defining the turning of the ignition on as operating a vehicle?

02:35 - 15.039 Well, in that event, Your Honor, Ballantine,

02:35 - 17.641 we are also asking you on this particular fact. Yes.

02:35 - 22.746 Because you said you said you believe that if an individual turned the car on and

02:35 - 26.950 fell asleep in backseat, that may not be in actual physical control.

02:35 - 30.187 I'm asking you, but would that be an upper operation?

02:35 - 32.256 Under Ballantine?

02:35 - 34.892 It might be, Your Honor, if We respectfully submit

02:35 - 38.262 each of these cases are very fact specific.

02:35 - 41.732 Which which which one are you relying on?

02:35 - 44.368 Are you. Are you. You're not saying he drove?

02:35 - 46.303 No. Where he did not drive.

02:35 - 48.505 Are you in?

02:35 - 51.709 You can't rely on both because they supposed to mean three different things.

02:35 - 52.009 Right.

02:35 - 54.778 So our is your theory that he was operating

02:35 - 56.613 the vehicle or is your theory that he was

02:35 - 58.582 in the actual physical control of the movement of vehicle?

02:35 - 02.619 And and I think you have a plausible argument because even though

02:36 - 03.887 I am not moving this lamp,

02:36 - 07.825 no one would say I'm not in actual physical control,

02:36 - 08.892 the movement of the lamp.

02:36 - 15.065 I can make it move or not, in Your Honor, but you have to choose which he was doing

02:36 - 17.935 because the proof points have to necessarily be different.

02:36 - 21.038 Was he operating or was he in actual physical control,

02:36 - 22.973 the movement of the vehicle, they have to be different things,

02:36 - 24.908 actual physical control of the movement

02:36 - 27.378 or so we shouldn't even talk about operating.

02:36 - 30.280 Well, Your Honor, we didn't include Ballantine as an alternative

02:36 - 33.717 for the court to consider, but what was your theory on the theory

02:36 - 37.121 that this is actual physical control of the movement of a vehicle?

02:36 - 37.388 Okay.

02:36 - 40.691 So we could end this case by simply saying, no, it's not and not talk about

02:36 - 43.794 what all the other things are potentially yes or on.

02:36 - 49.533 Or alternatively, we could also say he operated by turning on the ignition

02:36 - 54.571 and turning the heat on and and not do the physical the actual physical.

02:36 - 56.407 We could do either or both.

02:36 - 00.110 Our argument is either our principal argument, again, is that

02:37 - 04.081 this is we a very smart police officer and Officer Gelman,

02:37 - 09.186 because he knew at that point as far as he was concerned, Mr.

02:37 - 13.323 Borg was not driving the vehicle, wasn't moving, he wasn't operating the vehicle.

02:37 - 15.159 He specifically said,

02:37 - 17.528 I thought he was in actual control of the vehicle

02:37 - 20.230 because he was he had it on and he was behind the wheel. Exactly.

02:37 - 22.699 What about what about the storage? I well, when I'll stop.

02:37 - 25.502 What about the Penn State example that Mr.

02:37 - 29.373 Spring mentioned about the RV's?

02:37 - 32.776 I need to say pick on Penn State, but ain't about the RV's.

02:37 - 37.414 And, you know, the revelry that happens and the fact that the RVs are oftentimes

02:37 - 42.152 just running during it and, you know, the owner

02:37 - 46.023 has it running but has no intention of going anywhere,

02:37 - 50.260 then there's no actual physical control, as we would define it,

02:37 - 52.563 because there's nobody in a position

02:37 - 56.133 to do anything at the point where the engine's running to move it.

02:37 - 58.402 It's when that person gets in.

02:37 - 58.802 And that's why

02:37 - 01.972 I had a hard time with the question about being in the passenger's seat

02:38 - 05.075 when the vehicle's already running.

02:38 - 09.546 A person who's in the driver's seat obviously has the ability to move it,

02:38 - 12.549 whether intentionally or not, when you're drunk.

02:38 - 15.886 And I will just say when you're drunk, you do things

02:38 - 19.656 sometimes you don't even know you're doing a person in the passenger's

02:38 - 23.293 seat has the potential to to move it as well.

02:38 - 27.030 Again, probably by accident, because you're not sitting in the driver's seat.

02:38 - 28.832 You don't really want it to go anywhere.

02:38 - 30.834 But you can you can move it.

02:38 - 34.571 Then you have actual physical control of the movement, because you,

02:38 - 40.110 as Your Honor, pointed out with the lamp, we have the ability to move it.

02:38 - 45.182 It's when someone and our chief counsel, former chief counsel,

02:38 - 49.520 he asked me a question, like I said, what about these cars that?

02:38 - 52.322 You have the ability to be inside your living room

02:38 - 54.057 and you turn it

02:38 - 56.793 on and it's running and there's somebody in the car.

02:38 - 59.930 And I thought about that and I said, Yeah, that makes sense.

02:38 - 03.433 That wouldn't be actual physical control because there's nobody there

02:39 - 07.871 who's going to be able to move it until somebody actually gets in the car.

02:39 - 12.709 When Someone is in a position again, as as we would define it,

02:39 - 17.681 to be able to affect or cause the movement of the vehicle

02:39 - 20.751 while intoxicate that's actual physical control

02:39 - 24.421 of the movement of the vehicle and the key word, gun control, not movement.

02:39 - 27.224 So let me ask you

02:39 - 30.327 your opinion on banner on

02:39 - 34.064 you and the police officer obviously

02:39 - 41.371 did not believe that banners are holding, that there has to be a showing

02:39 - 45.108 that at some point in time, prior to the arrival of the police

02:39 - 48.111 officer, the vehicle had been driven.

02:39 - 49.246 Mm. Yeah.

02:39 - 51.915 So what are you asking us to overrule Banner or.

02:39 - 55.385 No, what is Banner mean. And it's

02:39 - 59.456 one of the cases that the court cited was Foreigner,

02:39 - 03.794 which is cited in our brief in which Commonwealth Court, I think correctly

02:40 - 06.964 there's no requirement for movement.

02:40 - 09.499 So while the

02:40 - 11.535 opinion of the Court

02:40 - 14.805 addressed that set of facts, Mr.

02:40 - 16.840 Banner didn't start the engine.

02:40 - 18.408 He wasn't in the driver's seat.

02:40 - 20.510 It wasn't going anywhere.

02:40 - 23.380 He although he left the keys in the ignition, he didn't start it.

02:40 - 24.881 Never started the car.

02:40 - 28.352 In that case, Foreigner, which the court did favorably cite,

02:40 - 32.789 would hold that there's no actual physical control there.

02:40 - 35.993 Obviously is no driving, there's no operation of the vehicle.

02:40 - 38.762 So Banner would not have to be overruled.

02:40 - 41.465 Probably distinguished language and banner mean.

02:40 - 46.169 Then at the very least, and whether there was other evidence

02:40 - 47.104 that the motorist

02:40 - 51.241 had driven the vehicle at some point prior to the arrival of the officer.

02:40 - 54.611 And that's what this court held in that case in Banner.

02:40 - 57.280 Yes, Your Honor. So that's no longer good law.

02:40 - 59.916 But the facts didn't don't support the court told it

02:41 - 03.687 and the court rejected the argument.

02:41 - 04.388 The whole thing is.

02:41 - 06.423 Banner I'm sorry, Your Honor, that's not the whole.

02:41 - 10.861 Well, the Court They said you looked at the court, rejected the argument

02:41 - 16.767 that PennDOT made, which is the vehicle, must have been driven because it was found

02:41 - 18.769 on the side of the road by the by the trooper.

02:41 - 22.773 In this case, we're not making that argument.

02:41 - 28.045 We're focusing on the fact that we have someone with the engine running the lights

02:41 - 32.883 on in the driver's seat, passed out drunk, who's in a position to move it

02:41 - 37.154 at any moment and potentially put it in drive.

02:41 - 39.890 He was in a parking space in a busy parking lot

02:41 - 42.459 not far from from.

02:41 - 44.761 And even if you've prevented brothers, you know, there's

02:41 - 48.331 going to be a lot of a lot a lot of people there on a Saturday night.

02:41 - 50.000 It's circumstantial.

02:41 - 53.370 What's your advice to somebody who's had too much to drink in a bar.

02:41 - 56.440 Don't go near your car so you don't open the door.

02:41 - 59.076 Certainly don't turn it on. Sleep in the driver's seat.

02:41 - 02.012 Yeah, no, we're not in the backseat.

02:42 - 03.947 Everyone has a cell phone.

02:42 - 05.782 I even have. So I'm a troglodyte.

02:42 - 06.650 Get in your cars.

02:42 - 11.955 Well, I'm saying initially if you're that drunk, you know, as Mr.

02:42 - 13.724 Bould did, I should not be driving.

02:42 - 16.426 But I'm going to try to sleep it off.

02:42 - 17.160 I'm not going to drive.

02:42 - 20.897 Well, I know I'm incapable of doing so.

02:42 - 24.034 You can call your spouse, call a friend,

02:42 - 27.537 call a cab, call an Uber, call a Lyft.

02:42 - 31.108 Do something other than put yourself in a position

02:42 - 34.511 where you have started that car you pass out.

02:42 - 37.314 There's no telling what's going to happen while you're passed out,

02:42 - 40.050 and it could lead to the elderly

02:42 - 44.755 who lives by himself on a welfare check, doesn't have the ability

02:42 - 50.761 to have a friend, the phone or the access money to buy a an Uber.

02:42 - 53.530 Your position is that that person,

02:42 - 59.603 I guess, should just walk it off, sit and freeze to death.

02:42 - 00.537 Really?

02:43 - 02.372 Well, that's what you just said.

02:43 - 03.273 So share with me.

02:43 - 06.376 Well, I like to think that those who are not capable

02:43 - 08.845 or privileged to have family, friends and

02:43 - 10.947 if you're going to go

02:43 - 13.683 out drinking to excess on a cold night,

02:43 - 17.120 my recommendation would be put a couple of blankets in the trunk.

02:43 - 19.422 I have a blanket in my trunk.

02:43 - 21.992 I don't go out drinking and get drunk. But

02:43 - 26.163 if you are concerned enough about it, you do something

02:43 - 29.633 so that you don't have to turn that car on, especially for those

02:43 - 32.602 who are mentally unstable or

02:43 - 36.640 insufficient, medically, medically treated,

02:43 - 42.312 who find alcohol as an alternative source they may not have the foresight.

02:43 - 45.749 Is the law created to protect a certain class

02:43 - 48.418 or is it to protect every pencil that you are?

02:43 - 52.322 Because right now you just discriminated against the poor,

02:43 - 57.060 the intellectually disabled, and those who may not had that access

02:43 - 00.463 that you've described what you're saying, that the General Assembly

02:44 - 03.733 created a statute that said drink

02:44 - 06.570 and get near a car,

02:44 - 11.174 we're going to convict of driving when the underlying principle

02:44 - 15.779 is the ability to drive safely in, capable of safe driving.

02:44 - 19.983 So somewhat confused as to your logic or your argument.

02:44 - 23.553 Well, Your Honor, the question is, what else can you do

02:44 - 28.291 besides getting in the driver's seat drunk, passed out, turning the engine on?

02:44 - 30.026 Who knows what's going to happen after that?

02:44 - 33.964 One thing is you can make a call to somebody who can come and pick you up.

02:44 - 38.835 Typically, what I see in these cases is the gets arrested for DUI.

02:44 - 41.938 We get involved because there's a chemical test refusal.

02:44 - 44.241 What always happens is they go to the station,

02:44 - 47.811 the DUI center, wherever, and they refuse.

02:44 - 50.447 And then the police call somebody, comes in, picked them up.

02:44 - 52.682 With all due respect, counsel, your argument is once again

02:44 - 56.286 premised upon the privilege of having the necessary funding.

02:44 - 57.454 Have a phone to call friend.

02:44 - 59.022 What if

02:44 - 01.591 this person let's let's follow your game?

02:45 - 06.930 The person you're discussing is able to own a phone, but she forgot it.

02:45 - 10.367 Now she's out there all alone with her

02:45 - 13.403 car and it's snowing out and she knows that.

02:45 - 18.174 She feels that she may not be drunk, but she wants to protect herself

02:45 - 21.912 because she's a conscientious individual who said,

02:45 - 24.214 Damn, I shouldn't have had that third glass of wine.

02:45 - 27.651 Let me just it off.

02:45 - 31.721 Your position is she should be arrested

02:45 - 34.958 and charged with a DUI offense for

02:45 - 40.363 for being a good citizen, worried about not only herself, others on the road.

02:45 - 41.731 Is that what you're sharing with us?

02:45 - 43.366 That's the government's position.

02:45 - 49.439 You know, Your Honor, we want to protect everyone from someone who could

02:45 - 54.077 unintentionally drive while under the influence.

02:45 - 58.515 If that same person gets in the rear seat

02:45 - 02.619 and leans over to the top of the bench

02:46 - 05.388 and turns on the engine, if the car is

02:46 - 10.260 parked properly and she falls asleep in the back

02:46 - 13.063 seat, we're saying we don't have a problem with that.

02:46 - 16.599 She's not in a position to control the movement of the vehicle

02:46 - 18.034 because she's in the back seat.

02:46 - 22.405 So in this current state of carjacking, I happen to come from Philadelphia.

02:46 - 25.208 We have people dying all the time.

02:46 - 27.911 So now you're saying the government advocates

02:46 - 31.881 not getting arrested for DUI, but being a victim, a carjacking?

02:46 - 33.583 No. Know, Your Honor.

02:46 - 36.920 Well, that's the practical reality of the Commonwealth arguments

02:46 - 40.757 when we have to determine the statutory definitions.

02:46 - 45.061 COUNSEL Do you see your argument as being a sea change the law?

02:46 - 46.196 Yes, Your Honor.

02:46 - 47.430 Okay, that's what I thought.

02:46 - 49.299 Yes, that's what you're arguing.

02:46 - 51.868 I think that your argument would be a sea change.

02:46 - 52.836 Yes, it would, Your Honor.

02:46 - 56.673 I As I said, I've probably written 400 briefs.

02:46 - 59.776 This is the first time I've ever had an officer.

02:46 - 04.781 Candidly admit I arrested this person for DUI because I thought he was

02:47 - 10.787 intoxicated and in a position to control the vehicle and move into.

02:47 - 11.955 Thankfully, his candor

02:47 - 15.425 allows us to have an opportunity interpret this challenging statute.

02:47 - 18.128 Can I just ask this?

02:47 - 21.631 Do you do you draw the line for purposes

02:47 - 24.601 of today's inquiry

02:47 - 27.103 between the

02:47 - 30.173 backseat and both front seats, or do you drive

02:47 - 35.412 between the driver's seat and and all other seats in the car?

02:47 - 38.214 Do you follow what I'm asking? Yes, Your Honor.

02:47 - 43.253 The possibility of moving the vehicle while intoxicated

02:47 - 46.456 is there when the person sitting in the driver's seat

02:47 - 50.360 and also is sitting in the passenger seat with the engine running or turns it on

02:47 - 55.365 in other parts of the vehicle, let's say it's got nine seats.

02:47 - 58.334 You've got if you turn it on and you're in the back,

02:47 - 01.571 you're not going to it's not going to move.

02:48 - 05.308 If it's going to move be because of a vehicle defect, not because

02:48 - 09.913 of anything that you as a drunken person caused the vehicle to do.

02:48 - 12.549 You're going down an incredible factual

02:48 - 15.919 rabbit hole because I can tell you

02:48 - 20.190 that you cannot easily operate my truck from the passenger seat.

02:48 - 20.590 Okay.

02:48 - 22.759 Well, it's not an easy thing do

02:48 - 26.062 and I'm not sure a drunk person could do it,

02:48 - 31.434 but you could bump a steering wheel or a gearshift, possibly not on my car.

02:48 - 33.503 You throw it in to drive out of my car.

02:48 - 36.339 We'll have a demonstration. Okay.

02:48 - 37.941 Are you finished? Yes, I am, Your Honor.

02:48 - 38.408 Thank you.

02:48 - 40.276 Well-argued and interesting case.

02:48 - 41.945 Thank you both.

02:48 - 45.448 The next case is the city of Lancaster, Borough of Carlisle

02:48 - 48.718 and Borough of Columbia versus the Pennsylvania Public Utility

02:48 - 51.855 Commission, which I'll refer to as the PUC.

02:48 - 58.361 This case regards a 2014 amendment to section 59.18 of the PUC SE regulations

02:48 - 01.397 and whether that amendment is enforceable

02:49 - 03.867 the amendment resulted from an investigation conducted

02:49 - 07.971 by the PUC'S Bureau of Transportation into gas meter placement

02:49 - 12.509 and service disputes between natural gas distribution companies and their customers

02:49 - 16.279 prior to the amendment meters could be placed inside buildings,

02:49 - 20.817 preferably in a dry well-ventilated place, not subject excessive heat

02:49 - 24.420 near the point of entrance of the pipe supplying service to the building.

02:49 - 27.490 The 2014 Amendment provides that unless

02:49 - 33.296 otherwise allowed or required by section 59.18 meters and regulators

02:49 - 38.101 must be must be located outside and above ground, with certain exceptions,

02:49 - 42.372 including specifically exceptions applicable to historic districts.

02:49 - 46.142 The question is whether the amendment improperly gives natural

02:49 - 49.579 gas distribution companies absolute discretion with

02:49 - 53.049 to the location of gas meters in historic districts.

02:49 - 56.920 The municipalities commenced the lawsuit against the PUC

02:49 - 01.024 by filing a petition for review with the Commonwealth Court in 2019.

02:50 - 04.994 The Commonwealth Court found in favor of the municipalities

02:50 - 09.232 holding that the amended regulation is an unconstitutional delegation

02:50 - 13.203 of legislative authority to natural gas distribution companies

02:50 - 16.206 and is therefore unenforceable.

02:50 - 17.440 Two judges dissented.

02:50 - 19.075 The appellant

02:50 - 22.312 PUC has appealed the Commonwealth Court's order.

02:50 - 26.983 The Supreme Court will review that order granting summary relief

02:50 - 30.286 using the same standards that are applicable to summary judgment.

02:50 - 34.390 The PUC has argued in its brief that the Commonwealth Court

02:50 - 37.393 did not recognize its statutory procedure to review

02:50 - 40.930 the placement of utility facilities in the public utility code.

02:50 - 44.100 It also argues that the Court should not have accepted

02:50 - 47.070 the municipality's contention that the amended regulation

02:50 - 50.373 will cause damage to historic facades, historic districts

02:50 - 55.211 without also analyzing the safety issues associated with meter placement.

02:50 - 58.948 Finally, it argues that the municipalities failed to show

02:50 - 01.718 that there was an actual controversy between the parties.

02:51 - 04.821 Since there's a question of whether the regulation

02:51 - 07.523 actually harms properties in historic districts

02:51 - 12.262 in that regard, the PUC argues in the alternative that the case should be

02:51 - 15.465 remanded to the Commonwealth Court to determine whether whether

02:51 - 19.502 the municipalities have actually suffered harm from the amended regulation.

02:51 - 23.139 The appellate municipalities argue in their brief

02:51 - 26.709 that the Commonwealth Court correctly granted summary summary relief.

02:51 - 29.812 They argue that the public utility code and other

02:51 - 35.251 pieces, rules and regulations do not include standards limiting the unfettered

02:51 - 39.355 discretion given to natural gas distribution companies by the amendment.

02:51 - 43.459 In other words, there are no standards to measure the distribution companies

02:51 - 48.331 conduct to determine whether that conduct is arbitrary or not.

02:51 - 52.035 They also argue that the court conducted an appropriate delegation analysis

02:51 - 54.470 and considered all relevant factors.

02:51 - 57.707 Finally, they argue that the Commonwealth Court correctly

02:51 - 00.410 that no material facts remain in dispute,

02:52 - 05.481 since this case involves a legal question and the interpretation of statutes, rules

02:52 - 09.552 and regulations, and therefore the case was ready for summary relief.

02:52 - 13.489 Let's watch and listen to the argument before the Pennsylvania Supreme Court,

02:52 - 14.257 in this case,

02:52 - 15.892 the city of

02:52 - 18.728 Lancaster, along with boroughs of Carlisle,

02:52 - 23.099 filed a petition for review in the Commonwealth Court

02:52 - 27.570 challenging the validity of a public utility commission regulation

02:52 - 31.741 which addressed whether a natural gas distribution company

02:52 - 35.445 should install natural gas meters inside

02:52 - 39.282 or outside of properties located in a historic district.

02:52 - 43.252 The municipalities contended that the regulation was

02:52 - 47.357 an unconstitutional delegation of legislative power

02:52 - 53.162 in violation of Article two, Section one of the Pennsylvania Constitution.

02:52 - 56.499 The Commonwealth Court granted relief and declared

02:52 - 00.603 the challenged PUC regulation unconstitutional,

02:53 - 05.441 finding that the regulation failed to provide adequate standards

02:53 - 09.445 to govern the gas companies meter placement decision

02:53 - 13.750 and did not set forth a formal adjudication of process

02:53 - 19.522 allowing a property owner to appeal the company's decision to the PUC.

02:53 - 23.760 In this appeal, we examine the propriety of that ruling.

02:53 - 24.927 Good afternoon.

02:53 - 29.332 Good afternoon, Chief Justice of the Supreme Court may please the court.

02:53 - 30.533 My name is Joe Cornell

02:53 - 33.536 and I represent the Pennsylvania Public Utility Commission in this matter.

02:53 - 35.705 The commission's principal

02:53 - 39.208 brief reply brief set forth the commission's entire argument.

02:53 - 43.746 But there are three points that I would like to discuss with the court here today.

02:53 - 48.418 My first point will focus on the purpose of Section 59.18.

02:53 - 51.587 My second point will focus on the municipality

02:53 - 54.257 sub delegation argument and the flaws therein.

02:53 - 58.528 And finally, my third point will focus on the effects of the Commonwealth Court's

02:53 - 02.732 decision with regard to the area of field preemption in the utility space.

02:54 - 08.337 So to my first point, the amendment to section 59.18

02:54 - 11.140 was promulgated after the Commission

02:54 - 16.379 went through the rulemaking process and determined that inside gas meters

02:54 - 18.815 contributed to gas meter leaks

02:54 - 21.751 that ultimately could lead to catastrophic explosions.

02:54 - 25.855 As such, the amendment in 2014

02:54 - 30.426 to Section 59.18 made outside gas meters.

02:54 - 35.364 The rule, with limited exceptions for interior placement of gas meters,

02:54 - 38.334 in this case, historic district buildings.

02:54 - 44.273 Section 59.18 was promulgated primarily with safety in mind.

02:54 - 48.211 But also took into account historic esthetic.

02:54 - 53.516 As I will discuss, Section 59.18 Directs and Guides

02:54 - 57.520 CS to maintaining indoor gas meter placement

02:54 - 02.658 if a request for it is made, and when the conditions in subsections d

02:55 - 06.329 two through four of, Section 59.18

02:55 - 09.065 dictate that it can happen safely.

02:55 - 13.336 Safety and historic esthetic are competing interests,

02:55 - 18.341 and the Commission is tasked with ensuring that end gdax provide adequate,

02:55 - 22.278 efficient, safe and reasonable service and facilities.

02:55 - 25.348 As such, the Commission is in the position

02:55 - 28.985 to balance these competing interests when disputes arise.

02:55 - 31.888 To my second point,

02:55 - 35.224 there has been no delegation of the Commission's authority in this case.

02:55 - 37.326 The ultimate

02:55 - 40.630 review process still rests with the Commission.

02:55 - 43.833 As discussed in our brief in detail.

02:55 - 47.403 The decision for me replacement is a managerial decision

02:55 - 50.473 that is ultimately reviewable by the Commission.

02:55 - 55.111 However, the municipalities are trying to shoehorn Commission's

02:55 - 00.316 regulation of 59.18 into a sub delegation argument

02:56 - 04.453 by emphasizing the initial duty that the Gdax

02:56 - 08.491 have with regard to meter placement.

02:56 - 11.827 Section 59.18 set forth a thorough

02:56 - 14.196 standard for making this meter placement

02:56 - 17.233 that governs this initial decision

02:56 - 20.436 with regard to inside meter placement.

02:56 - 24.640 Subsections D two through four set out all the requirements

02:56 - 28.978 that must be met in order to safely maintain an indoor gas meter

02:56 - 32.014 and sections A one through 12,

02:56 - 34.884 B, one through two, and C one through four.

02:56 - 40.323 Set out the parameters for consideration of exterior placement.

02:56 - 43.459 The Commonwealth clearly aired

02:56 - 46.095 in that section 59.18.

02:56 - 49.932 Granted, and GDS sees unfettered discretion.

02:56 - 50.833 Well,

02:56 - 54.437 isn't the opposite true in

02:56 - 58.608 absence of 5918, they had unfettered discretion.

02:56 - 00.509 That's true. There was.

02:57 - 05.681 There is no statute enacted by the General

02:57 - 09.185 Assembly that directed the PUC

02:57 - 13.389 to specifically regulate on its own

02:57 - 16.425 meter locations.

02:57 - 17.960 Correct, Your Honor.

02:57 - 21.597 Before the 2014 Amendment was enacted,

02:57 - 24.900 we had a simple regulation in place

02:57 - 28.671 that simply left it to the GDC discretion.

02:57 - 29.572 You didn't?

02:57 - 32.141 All you did was confirm it was left to their discretion.

02:57 - 32.908 It was.

02:57 - 33.476 It was.

02:57 - 36.545 In the absence of a statute that grants, puts it somewhere else

02:57 - 41.751 that says the PUC must observe the energy, decays, determine meter location

02:57 - 45.254 in the absence of statute, telling them they can't.

02:57 - 50.259 The General Assembly hasn't prohibited them from making that decision.

02:57 - 51.293 That's correct.

02:57 - 55.498 What you have done is you have passed a regulation that limits

02:57 - 59.068 their inherent ability to decide

02:57 - 01.737 where they can place meters.

02:58 - 03.606 That's your honor.

02:58 - 06.142 So where is the legislative authority

02:58 - 09.945 that was purportedly delegated improperly to the and GDC?

02:58 - 12.682 And that's that's what we're

02:58 - 15.685 arguing, Your Honor, that there hasn't been a delegation of authority.

02:58 - 18.587 What's amazing to me is if you read the Commonwealth Court opinion

02:58 - 23.292 and you're even your briefs here, nobody really makes that point.

02:58 - 28.431 Nobody really starts from the premise of process in City of Williamsport.

02:58 - 31.867 In the end, the other cases with a General Assembly

02:58 - 37.339 where they've constitutionally exercised their prerogative to create a rule

02:58 - 40.643 and see where they in that statute

02:58 - 43.646 delegated something without guidance.

02:58 - 46.916 Nobody started there.

02:58 - 48.918 Well, you're wrong. You didn't even start there.

02:58 - 53.222 No. We with section 1501, the public utility code.

02:58 - 57.026 That is where the authority comes to regulate.

02:58 - 00.429 Utility facilities facility is a gas meter

02:59 - 04.700 that constitutes a gas meter, but it doesn't say regulate location.

02:59 - 06.368 That's like the statutes in Pennsylvania

02:59 - 08.671 that say the insurance department shall regulate insurance,

02:59 - 11.207 but it's all under the roof of

02:59 - 14.510 reasonable, adequate efficiency with service.

02:59 - 16.011 Yeah, but differently.

02:59 - 19.782 If I could follow up just as Bob's question,

02:59 - 24.253 because I agree that this was obscured even in your brief, is that that

02:59 - 28.691 that was not a delegation by the General Assembly of any legislative authority.

02:59 - 32.161 The PUC, as I understand it, there was a rulemaking

02:59 - 34.997 there was an administrative delegation. Yes.

02:59 - 40.302 I mean, you're not conceding or are you that you're that your has been

02:59 - 45.541 yet has been delegated anywhere, any legislative authority, are you.

02:59 - 46.742 No, Your Honor.

02:59 - 51.480 No, this is a we cited in our brief that this is a managerial decision.

02:59 - 56.952 The commission cannot regulate every aspect of utilities,

02:59 - 00.322 and there has to be some leeway there for them

03:00 - 03.559 to carry out their daily day to day operations.

03:00 - 08.798 And since and Gdax are in the position to assess each

03:00 - 10.800 property on a

03:00 - 13.536 case by case basis, they're in the position to determine

03:00 - 17.039 what is safe and reasonable initially.

03:00 - 21.310 Now, if there's any dispute there, there is always that complaint process

03:00 - 25.781 before the commission under Section seven and one of the public utility code

03:00 - 31.020 and whatever that and gdax meter placement decision is, it has to be reasonable

03:00 - 36.392 pursuant to Section 1501 and 2205 of the public utility code.

03:00 - 40.930 And also taking into consideration or especially taking into consideration

03:00 - 45.534 those enumerated parameters set forth in Section 59.18.

03:00 - 47.002 Can I just. Yes.

03:00 - 50.139 So is is your point that the

03:00 - 53.509 that this review mechanism satisfies

03:00 - 57.213 the intelligible principle test or rather, that that

03:00 - 01.350 no intelligible principle is even required

03:01 - 05.454 because there's not been a delegation of discretion in the first place?

03:01 - 06.856 The latter, Your Honor.

03:01 - 09.992 There hasn't been a delegation in the first place because

03:01 - 13.963 and if you look at what the regulation was before,

03:01 - 19.535 this hasn't been amended since 1971, there were only two options.

03:01 - 25.708 Either the NCDC puts the meter inside and it has to be away from

03:01 - 29.311 it has to be in a ventilated area or it goes outside.

03:01 - 30.379 And there we had

03:01 - 32.581 in the judgment of

03:01 - 35.851 the utility where where the the meter goes.

03:01 - 40.489 And in that case, when that was the regulation,

03:01 - 44.627 the Commission's formal complaint process always stood ready

03:01 - 49.498 to review that Nzc decision, and there was never any delegation

03:01 - 54.336 of the Commission's authority over the NCDC in that matter.

03:01 - 58.407 And with respect to the cases that the Commonwealth Court

03:01 - 02.578 relied upon pirates, Pennsylvanians against gambling, Williamsport

03:02 - 07.249 and 425 Properties Association, all of those cases

03:02 - 12.621 outside authority making a determination with no established standard.

03:02 - 15.357 And that's that's where your argument lost me

03:02 - 18.661 on this issue that justice Wecht and I have been asking you about.

03:02 - 21.630 You only go down that road if you started from a principle

03:02 - 24.466 of delegation, of legislative authority and process.

03:02 - 26.869 It was a legislative enactment that said

03:02 - 31.507 amid guidelines from the third party entity control there.

03:02 - 36.211 And that took the basic policy decision away from the General Assembly

03:02 - 39.982 to tell the General Assembly delegated it improperly to an outside party.

03:02 - 43.519 Standards that can change over time, sight unseen by the General Assembly

03:02 - 45.921 said of Williamsport was the same thing.

03:02 - 49.692 Yeah, the city of Williamsport was a statute that authorized

03:02 - 51.427 local

03:02 - 53.762 municipalities to pass a construction code,

03:02 - 58.734 and they're in language toward the end, not the root route.

03:02 - 02.738 Ruling in the case was if if if we would allow a municipality to

03:03 - 06.675 to delegate that delegation from the General Assembly to a third.

03:03 - 09.211 It's essentially the same thing snowballing.

03:03 - 12.915 Start with me from this principle where the Legislative Assembly,

03:03 - 16.618 you don't have to go down this road that you're going down

03:03 - 21.357 unless they prove there was a legislative delegation,

03:03 - 24.026 something where the General Assembly said,

03:03 - 27.329 we delegate

03:03 - 29.298 the PUC, for example,

03:03 - 32.868 the exclusive power to designate where

03:03 - 36.538 meters go, and they must set the standard odds.

03:03 - 38.874 And you're on nothing like that.

03:03 - 42.478 And Your Honor, the municipalities and the Commonwealth Courts

03:03 - 46.915 majority decision kind of shoehorned this into a sub delegation argument

03:03 - 50.486 that we have been pushing back against since.

03:03 - 51.653 That's kind of the

03:03 - 56.658 framework that this has been pushed into.

03:03 - 58.060 And I agree with you,

03:03 - 01.130 the commission's position is there hasn't been any delegation here.

03:04 - 02.831 This is a regulatory event.

03:04 - 07.202 This is you regulating an industry, putting restrictions

03:04 - 10.239 on how the industry can operate, not telling the industry.

03:04 - 12.541 And the General Assembly told us to do this,

03:04 - 15.811 but we're going to delegate to you to do whatever you want to do.

03:04 - 16.678 That's true.

03:04 - 18.814 That's exactly what our position is.

03:04 - 22.951 But in response to the municipalities sub delegation argument,

03:04 - 26.422 that's why we go down that that road of why

03:04 - 30.359 this can't even be sub delegation if you're going to look at it that way

03:04 - 32.761 because there's no delegation to begin with.

03:04 - 35.697 That's exactly right, Your Honor.

03:04 - 40.903 And with regard to the review process before the commission,

03:04 - 45.607 as we noted in our brief throughout case law, the reasonableness

03:04 - 50.646 standard is recognized throughout case law as a defined standard of review,

03:04 - 52.147 which is what any

03:04 - 55.684 dispute against meter placement

03:04 - 01.023 would have to stand muster before the Commission.

03:05 - 04.293 And further, as we noted in our brief ad hoc decision

03:05 - 07.129 making by the GDC is not possible here

03:05 - 10.866 because the Commission is capable of developing

03:05 - 14.369 a body of case law, establishing what constitutes reasonable

03:05 - 17.473 placement of gas meters in historic districts.

03:05 - 20.476 And finally, to my third and final point,

03:05 - 25.514 the has recognized field preemption in utilities space will be ignored

03:05 - 29.618 if the Commonwealth Court's majority opinion is left in place.

03:05 - 33.789 As I noted earlier, if this Court upholds the Commonwealth

03:05 - 38.193 Court's majority decision, we revert to the 1971 version

03:05 - 41.230 of section 59.18,

03:05 - 45.767 which simply gave Nzc the option to position gas meters indoors

03:05 - 50.105 or outdoors with few enumerated parameters for consideration.

03:05 - 55.677 However, there was no enumerated exception for indoor meter placement

03:05 - 59.248 for historic district buildings in the prior version.

03:05 - 02.384 So we're almost going backwards here

03:06 - 05.420 if it's left invalidated

03:06 - 11.760 the Commonwealth Court

03:06 - 16.198 or excuse me, when the knee replacement was subject to the DC

03:06 - 19.535 and DC's respective tariffs prior

03:06 - 24.573 to the 2014 Amendment to Section 59.18,

03:06 - 27.643 you had a patchwork

03:06 - 31.146 of varying tariffs of where these meters would go.

03:06 - 35.417 So yogis territory, they would have their own set of requirements

03:06 - 38.187 that would have to be approved by the commission where the meters go.

03:06 - 43.325 The other gas companies, they would have tariffs in place.

03:06 - 45.427 That would be totally different.

03:06 - 48.931 What the commission with section 59.18 is make this

03:06 - 52.768 a uniform application across the Commonwealth so that we didn't

03:06 - 56.872 have this patchwork of varying tariffs on where go.

03:06 - 59.942 And if the court recognizes

03:06 - 05.013 Section 59.18 as improper sub delegation, it will throw into question

03:07 - 09.117 the Commission's of preemption that this Court has consistently recognized.

03:07 - 13.322 While the Commonwealth Court dismissed the Municipalities Article

03:07 - 17.426 one, Section 27 argument on the historic esthetic damage,

03:07 - 21.530 the status of the affected buildings and the local ordinances

03:07 - 23.565 are still very much at the heart of this case.

03:07 - 27.569 This court's majority opinion

03:07 - 31.406 or opinion in people versus City of Lancaster from 2019 held

03:07 - 35.711 that local municipal ordinances cannot stand in the way

03:07 - 39.514 of the Commission's regulations, since the General Assembly

03:07 - 42.651 directed the Commission to be in charge of regulating utilities.

03:07 - 48.624 So, Your Honor, if if the 2014 Amendment to Section

03:07 - 50.959 59.18 is left invalidated,

03:07 - 55.097 this the utility space and the field preemption, that hat

03:07 - 58.867 that the PUC has recognized as having will be put in jeopardy.

03:07 - 02.671 And with that, if if your owners have any further questions,

03:08 - 04.973 I'd be happy to answer them. Any other questions.

03:08 - 08.877 Mr. Cardinal, may I ask, is this your first time arguing before or.

03:08 - 11.346 This is the second time, yes.

03:08 - 12.481 First time for the PUC.

03:08 - 15.951 I was a district attorney and I argued in 2016.

03:08 - 17.052 All right.

03:08 - 18.553 Very nice job. Thank you.

03:08 - 23.258 Thank you.

03:08 - 26.028 And I'll ask you the same question. It is my first one. Yes.

03:08 - 26.528 Welcome.

03:08 - 30.632 And thank you very much, Chief Justice Justice's counsel.

03:08 - 31.733 My name is Mike Peters.

03:08 - 34.202 I'm an attorney with East Burning Gray out of Doylestown.

03:08 - 36.605 And you started with someone who's sick.

03:08 - 38.106 You're ending with someone who's sick.

03:08 - 40.208 But I've been sick for like a month and a half, so don't worry

03:08 - 41.543 you're not going to get anything from me.

03:08 - 43.078 We're still going to fumigated.

03:08 - 44.880 That's. That's fine.

03:08 - 48.450 That's a first response to the justices questions regarding delegation

03:08 - 52.187 Section five or one of the public utility code, indisputably

03:08 - 55.223 delegates to the Public Utility Commission.

03:08 - 59.227 The ability to regulate public utilities in all things public utilities,

03:08 - 01.296 of course, does so. So to argue that.

03:09 - 02.898 Sorry, sorry. Go ahead.

03:09 - 05.100 Just you said indisputably

03:09 - 07.269 I don't know whether

03:09 - 11.273 whether you're saying indisputably that is a legislative delegation.

03:09 - 14.242 In other words, they have delegated administrative authority.

03:09 - 17.946 You're not here to tell us that that our General Assembly

03:09 - 22.317 has delegated to the commission legislative authority, are you?

03:09 - 24.886 Because that would be unconstitutional, wouldn't it?

03:09 - 25.687 No, no, I'm not.

03:09 - 27.422 I'm its regulatory authority, of course.

03:09 - 30.992 Well, then, if that's the case, where did they get

03:09 - 35.030 the legislative authority you claim that they delegated here?

03:09 - 37.332 I'm not.

03:09 - 39.401 I'm not. I'm not quite sure I'm following.

03:09 - 42.904 So so it's a sub delegation, legislative recall.

03:09 - 44.339 It's absurd and call it whatever.

03:09 - 46.375 But but that's how the case is treated though.

03:09 - 48.543 Well that's how the Commonwealth treated it.

03:09 - 50.679 We're here to talk about that.

03:09 - 52.948 If if you agree with me

03:09 - 55.450 that the

03:09 - 58.153 General Assembly could not have delegated legislate

03:09 - 00.689 the authority to this administrative agency,

03:10 - 06.661 then where did the administrative agency get this legislative authority

03:10 - 09.865 that you're complaining of here that they allegedly delegated?

03:10 - 12.634 You're referring to legislative authority.

03:10 - 16.805 But but I think what has happened here is they've given authority

03:10 - 20.942 to the PUC to regulate there's no doubt that comes from from them.

03:10 - 24.880 As the legislature down, the legislature could have created its own regulations.

03:10 - 28.683 It chose not to it chose to give that power to the public utility commission.

03:10 - 31.787 Our position is in exercising that authority,

03:10 - 35.390 that power delegated from the General Assembly.

03:10 - 39.227 They need to do so in a manner that's that's we just try one more time.

03:10 - 40.495 Let me just try one more time. Okay.

03:10 - 44.499 So we've we've established we've established

03:10 - 48.703 that the General Assembly could not delegate

03:10 - 52.674 legislative authority

03:10 - 53.809 to the PUC.

03:10 - 56.611 It's pretty basic that's consistent with process, right?

03:10 - 59.247 They can't do that. It's unconstitutional, correct?

03:10 - 00.982 I understood, sir.

03:11 - 03.919 And yet your argument,

03:11 - 07.355 I think, is that notwithstanding

03:11 - 10.625 that, the PUC then turned around

03:11 - 15.397 and delegated its legislative authority to these gas companies.

03:11 - 16.832 And what I'm asking you is,

03:11 - 17.466 where would it have

03:11 - 20.702 gotten such a legislature because they delegated their regulatory

03:11 - 22.537 authority, that's supposed to be the right way.

03:11 - 26.007 And that's where that's where that's where you have a problem, because

03:11 - 30.579 that the court, the doctrine of non delegation of legislative authority

03:11 - 34.182 is constitutional based on Article three of the Pennsylvania Constitution.

03:11 - 35.250 You're absolutely right.

03:11 - 38.820 So you have to start as justice swept as prodding you

03:11 - 43.391 with an unconstitutional delegation of legislative authority mean

03:11 - 48.930 the legislature has a non delegate duty to establish the public policy.

03:11 - 53.835 For example, if the Legislature passed a PUC code that says

03:11 - 58.306 we are establishing the public utility commission to regulate

03:11 - 02.611 all public utilities in Pennsylvania, but we're not going to define it.

03:12 - 06.781 We're going to let the we're going to let you, by

03:12 - 10.252 this private entity, define what our public utility is.

03:12 - 12.521 And and that's it.

03:12 - 16.291 And they said that would arguably an unconstitutional delegation

03:12 - 17.292 of legislative authority,

03:12 - 20.929 because the basic policy decision of what entities are to be regulated by

03:12 - 23.265 this entity has to be made by the General Assembly.

03:12 - 29.371 You lose traction when you argue about regulatory authority

03:12 - 34.142 because there is no constitutional non delegation of regulator of authority.

03:12 - 37.412 You'd have to cite to me a constitutional provision

03:12 - 40.448 that prohibits an agency from

03:12 - 45.554 from rather than choosing to set standards specifically about individual things

03:12 - 49.925 sets, guidelines to allow the regulated entities to make those choices.

03:12 - 51.092 You understand the difference?

03:12 - 54.029 Oh, certainly, sir, I do, yes.

03:12 - 57.198 And I'm not telling you that I a case that that says that

03:12 - 00.602 because I don't I don't

03:13 - 04.873 the arguments we weight we made to the Commonwealth Court again

03:13 - 08.043 based on the delegation from the PUC down.

03:13 - 11.880 So if this court determines that as a matter of law

03:13 - 15.283 that is not sub delegation, then my is cut.

03:13 - 15.650 Right.

03:13 - 20.322 But I guess I guess the problem is is where you maintain that proof

03:13 - 24.125 the pre amendment to fit pre amended version of 5918 under.

03:13 - 27.662 Your theory was an unconstitutional delegation of administrative authority.

03:13 - 30.298 No, no, we haven't taken that position.

03:13 - 33.802 Even though the and the GCS had even more

03:13 - 36.304 under the prior version than they have under the.

03:13 - 40.141 Well, you say that, but you have to recognize that

03:13 - 44.379 it went from being they could be inside to now in gdax.

03:13 - 45.914 You must move them outside.

03:13 - 50.385 That's what the new regulation says, unless you fit these exceptions. So.

03:13 - 51.753 Right. But they but

03:13 - 53.855 you're skipping

03:13 - 57.726 premise the pre amended version granted the end gdax

03:13 - 01.830 more discretion than the then this one is.

03:14 - 04.699 Theoretically. I think that is correct.

03:14 - 08.637 Now in terms if I I'm sorry if I could just make my point and then

03:14 - 14.009 but I'm not I'm not disagreeing with you.

03:14 - 18.613 The PUC decided to create an exemption for historic structures.

03:14 - 20.482 Historic properties, right.

03:14 - 23.218 That didn't occur under the prior regulation.

03:14 - 26.955 Having made the decision to do that, which under

03:14 - 32.027 the delegation doctrine, whether you determine it can be applied.

03:14 - 34.029 They made that policy decision.

03:14 - 36.197 They then have to set adequate standards.

03:14 - 39.467 I'm not saying your regulation was better when Commonwealth Court asked me if

03:14 - 42.837 if I wanted it to be stricken, I said

03:14 - 45.874 I said no honestly, because in many ways

03:14 - 49.110 from a safety standpoint, it's better than the old version was.

03:14 - 52.847 The issue is that the delegation theory,

03:14 - 55.083 if they decided to treat

03:14 - 59.120 historic properties differently, they have to impose adequate standards.

03:14 - 01.890 And it's our position that that's where you

03:15 - 04.492 you lose me.

03:15 - 05.994 I mean, here they did a

03:15 - 10.131 they had an administrative delegation from the General Assembly

03:15 - 14.703 and to that rulemaking, they did a notice and comment procedure.

03:15 - 18.006 And so there's that silo.

03:15 - 21.142 And so there's been no delegation

03:15 - 24.245 of legislative authority, and therefore

03:15 - 27.849 there can be no sub delegation because there's been no delegation.

03:15 - 28.850 What am I missing?

03:15 - 32.220 Well, the issue would be in that circumstance that I regulate,

03:15 - 37.292 a state regulatory agency could pass on its regulatory power to a private entity,

03:15 - 42.330 which which I don't think is I don't think is correct.

03:15 - 45.633 You can can test those regulations

03:15 - 49.070 under the regulatory paradigm.

03:15 - 53.508 But how are you getting that under a non delegation.

03:15 - 57.312 Well, take a look at to that point, take a look at the case.

03:15 - 01.316 There is a case the center park case where they tried to

03:16 - 03.952 to apply Section 5918.

03:16 - 06.921 And by they I mean the Public Utility Commission

03:16 - 08.857 was the Public Utility Commission case.

03:16 - 12.627 It goes on for 80 pages and they're not able to establish

03:16 - 16.998 a standard because frankly, there is no standard in Section 5918.

03:16 - 22.137 The only standard those 80 pages is the standard that Yogi itself created.

03:16 - 26.341 So so what's going to happen if Section 59 remains, as is

03:16 - 29.778 gas utilities are simply going to relocate all meters

03:16 - 32.914 to the outside or they're going to create their own

03:16 - 36.317 historic review procedure

03:16 - 39.721 that doesn't end up being subject to any substantive review.

03:16 - 42.857 The operative word is, quote unquote, consider.

03:16 - 45.093 That's that's what it says in section 5918.

03:16 - 47.729 Suppose the regulations simply said

03:16 - 52.867 MGD is shall locate

03:16 - 56.905 the meters in a safe way period

03:16 - 00.708 and and it didn't address the historic aspect

03:17 - 05.547 that under under my under my theory I'd have to say that that's not an issue

03:17 - 08.850 because the policy decision I'm latching on to is a historic decision.

03:17 - 09.818 But there's I know.

03:17 - 11.853 But that's but I'm so the problem is

03:17 - 15.824 you perceive this as the fact

03:17 - 18.793 that they have imposed that they have

03:17 - 22.430 am having a hard time articulating it

03:17 - 24.933 that it need to so

03:17 - 30.872 that somehow they have delegated to the NCDC

03:17 - 35.143 the ability to choose how to locate these meters

03:17 - 37.512 in in the

03:17 - 40.315 context of historic properties, in the context of historic property.

03:17 - 44.052 That's but in the absence of this regulation,

03:17 - 46.821 it was always up to the NCDC director to locate.

03:17 - 51.326 But that wasn't some unconstitutional because

03:17 - 56.698 because the PUC had made a policy decision to treat historic properties.

03:17 - 02.670 So your that's your concern is that the regulation is ambiguous?

03:18 - 04.072 Well, it is ambiguous, yes.

03:18 - 06.841 Yes, sir, absolutely. It is. So.

03:18 - 09.644 But that's that's a different form of challenge.

03:18 - 10.011 Right.

03:18 - 13.514 That question raised here and we agree with that and and

03:18 - 16.885 I'll just be frank,

03:18 - 19.320 you know, maybe that's a challenge we would have eventually got to.

03:18 - 24.826 But we were lucky enough to get lucky or not to get some relief on this theory.

03:18 - 27.795 Did you raise that on the Commonwealth Court? Did you did you raise a tire jockey

03:18 - 29.330 claim?

03:18 - 32.133 No, no, not not not not in this challenge.

03:18 - 33.301 No, we did not.

03:18 - 36.170 And you didn't participate in the rulemaking process?

03:18 - 38.473 This city

03:18 - 41.476 this city in these two boroughs did not justice

03:18 - 45.079 your correct.

03:18 - 45.513 All right.

03:18 - 48.283 Are there any other questions

03:18 - 49.784 you want to wrap up?

03:18 - 52.353 Sure. Otherwise, we'd rest on our briefs.

03:18 - 55.023 And I thank you very much for the opportunity to be here today. Thank you.

03:18 - 55.590 Thank you.

03:18 - 57.692 You both did an excellent job. Thank you.

03:18 - 58.860 Mr. Brenner,

03:18 - 31.326 this is your.