00:00 - Everyone.

00:01 - This is the first day of our spring

00:04 - oral argument session here in Philadelphia.

00:07 - Let me begin by welcoming our newest

00:10 - justice, Dan McCaffrey, from Philadelphia.

00:13 - We're very happy to have you do our best effort

00:18 - and now have seven set of justices.

00:22 - One of them is not on this case, but

00:25 - some to complement once again.

00:28 - Thankful for that.

00:30 - As you may know, the Pennsylvania Supreme Court

00:33 - is the oldest appellate court in North America.

00:36 - Our roots date back to provincial court

00:39 - in 1684, and our Supreme Court was formally established

00:44 - pursuant to the Pennsylvania Judiciary Act of 1722.

00:49 - In 2022, we celebrated the court's store

00:53 - 300th anniversary right here in Philadelphia.

00:57 - I think it's interesting to note, in its

00:59 - earliest years in Philadelphia, our court actually convened

01:04 - at private residences and the lower courts that houses the court

01:12 - centers that of the city of Philadelphia, and constructed

01:15 - the townhouse of two story house and market

01:19 - that functioned as the early part of the court.

01:23 - Our courts conducted the townhouse

01:27 - 1743 when it moved to its own courtroom

01:30 - and the state house now Independence Hall

01:34 - beginning construction in 1871.

01:36 - It took 30 years to construct this city hall.

01:40 - It was designed in the French Second Empire style

01:45 - by John Pastore to follow suit, stickball

01:49 - sitting atop the building that you know, is the bronze statue

01:53 - or to standing 37 feet tall and weighs 27 tons.

01:59 - Mr. Penn's statue faces north east and points to the spot

02:03 - where he signed a treaty of friendship with the local Native

02:07 - Americans in 16 two.

02:10 - After the official opening in 1877,

02:15 - the first test in this building and

02:20 - reporters do this to

02:21 - be the most handsome courtroom in the country

02:25 - and concluded that some of the more fastidious lawyers will hereafter take

02:29 - only Supreme Court cases in order that they may practice in this court.

02:35 - So I hope you have a pleasant experience in this beautiful, beautiful courtroom.

02:40 - Before we hear the first case, I would like to remind counsel of a few things.

02:45 - Tell us, counsel, please approach the podium once you've completed

02:48 - your cases, call I visit and give a short summary of the case.

02:53 - You may begin by stating that the parties you represent

02:57 - introducing your co-counsel to the Court.

03:00 - The justices are familiar with all your cases, so I ask that

03:04 - you avoid any unnecessary recitation of the facts or procedural history

03:10 - and instead focus on your main issues on which to review.

03:14 - Counsel is always welcome to rely on the phrase for particular issues.

03:20 - Please also remember that we do not allow rebuttal

03:24 - in cases in which we have

03:26 - multiple parties represented by separate counsel.

03:30 - Counsel should avoid repeating the same arguments as private counsel.

03:34 - Please try not to interrupt the justices when they are asking you a question.

03:40 - A justice's question is not intended to trip you up.

03:44 - It's just indicates that there are particular issues

03:47 - we want to explore further.

03:49 - While there is no set time limit for argument, I would advise counsel

03:54 - when the court is satisfied that all the questions have been answered.

03:58 - And at that time I ask that you conclude your argument.

04:03 - Welcome to the March 2024

04:05 - arguments session of the Pennsylvania Supreme Court.

04:08 - My name is Matthew Vered. Zach.

04:10 - I'm an attorney with Falla, Hertzel,

04:13 - McNulty and Spalding, and I'm joined today by my colleague,

04:16 - Elena Eisenstein, who is the chair of US litigation for DLA Piper.

04:22 - Our first cases

04:23 - this morning are for consolidated appeals

04:27 - that raise a question under the Federal Natural Gas Act.

04:31 - A company named Adelphia Gateway plans to change an interstate

04:36 - oil pipeline to transmit natural natural gas.

04:40 - As part of that process,

04:41 - it applied to the Pennsylvania Department of Environmental Protection

04:45 - to construct a compressor station in West Rock Hill

04:49 - Township, Pennsylvania.

04:52 - The Department of Environmental Protection approved the permit, and citizens

04:56 - and the township challenged the permitting approval before the Pennsylvania

05:01 - Environmental Hearing Board, which is an administrative agency

05:05 - which reviews certain permitting decisions under law.

05:10 - The Environmental Hearing Board, however, dismissed the citizens petitions

05:14 - for lack of jurisdiction, ruling that the challenges needed to be brought

05:18 - under the Natural Gas Act in the United States Court of Appeals

05:22 - for the Third Circuit, a federal Court of Appeals.

05:26 - The Citizens Petitions for Review of the Environmental Hearing

05:30 - Board's decision in the Pennsylvania Commonwealth Court, which reversed.

05:35 - Meanwhile, Adelphia attempted to challenge the ruling in federal court,

05:40 - but that action was dismissed by a federal district court

05:43 - in Harrisburg.

05:46 - The Department of Environmental Protection and Adelphia argue

05:50 - that the federal Natural Gas Act requires

05:53 - the citizens to bring their challenge to the DEP permit in the Third Circuit

05:59 - and not to the Environmental Hearing Board.

06:03 - Then the Adelphia argues that bringing dual challenges in state

06:08 - and federal courts frustrates the purpose of the act

06:11 - because it frustrates its ability to obtain permits

06:15 - so it can complete its natural gas

06:17 - pipeline to Saudi Arabia.

06:21 - The the appellees, who are the citizens challenging the permit, argue

06:26 - that the review of the permit falls within a carve out

06:30 - for petitions under the Clean

06:32 - Air Act and that the Natural Gas Act's requirement

06:36 - that challenges be brought exclusively in federal courts of appeals

06:40 - does not apply

06:41 - to administrative proceedings like the one before the Environmental Hearing Board.

06:46 - In addition to the briefs by the parties,

06:48 - several amicus curiae or friends of the court

06:52 - have submitted briefs in support of the the various arguments.

06:57 - Transcontinental Gas Pipelines Company

07:00 - and Columbia Gas Transmission Company argue consistent

07:05 - with Adelphia that the Third Circuit has exclusive jurisdiction

07:10 - supporting the citizens.

07:12 - The Delaware River Keepers Network and other groups argue

07:16 - that the Environmental Hearing Board has a role in to review

07:19 - permitting decisions under the Federal Natural Gas Act.

07:23 - Thank you, Your Honor.

07:24 - My name may please the Court.

07:27 - May please the Court.

07:28 - My name is Douglas Whyte.

07:29 - I have the honor of representing

07:31 - the Commonwealth of Pennsylvania Department of Environmental Protection

07:34 - with me as co-counsel.

07:35 - Andy Bacchus represents Adelphia Gateway.

07:38 - Well, I think we all recognize the issues in this case

07:41 - have a lot of overlapping concerns and interconnected closely.

07:44 - I'll be focusing primarily

07:46 - on the roles of Department Environmental Protection and Environmental Hearing Board

07:49 - and why and how the Environmental Hearing Board

07:51 - is preempted from acting in these cases.

07:55 - We're asking this court to reverse the Commonwealth's court

07:58 - decision below for many reasons, but one of the main reasons

08:01 - is the Environmental Hearing Board

08:02 - is preempted by the Natural Gas Act from getting involved in this process

08:06 - because it fails to meet any of the very prescriptive requirements

08:10 - listed by Congress in section 717 of the Natural Gas Act.

08:14 - The Bible. A hearing board does not review

08:18 - applications.

08:18 - It does not issue federal authorizations.

08:21 - It is not cooperative.

08:22 - The Federal Energy Regulatory Commission commonly known as FERC,

08:26 - it does not create the record required by this statute.

08:29 - Therefore, it is preempted from being involved in the permitting

08:32 - process of interstate natural gas pipelines and is not involved.

08:36 - The statute clearly dictates one and only one path

08:41 - for challenges to the EPA permits, and that is to the applicable circuit court.

08:45 - And that's the only way it can be done.

08:47 - So if anyone is attempting to bring the Environmental

08:50 - Hearing Board into this particular type of permit process

08:53 - is violating the natural Gas Act as they are fully preempted

08:57 - to clean out the Clean Air Act through the Air Pollution Control Act

09:00 - authorizes

09:01 - Department of Environmental Protection to review applications and issue permits.

09:05 - That is what we do. We've done it consistently.

09:07 - Yes, the Environmental Hearing Board

09:09 - is involved in reviewing some of the permits that we issue.

09:12 - But when Congress specifically preempted the H.B.

09:15 - from being involved in this particular type of natural gas pipeline permit,

09:19 - it was quite clear that the circuit court and only the circuit court

09:24 - or the jurisdiction for which to file challenges.

09:27 - For example, if you look at 717 in, it requires any state

09:32 - agency involved in natural gas pipeline permitting to cooperate with with FERC,

09:37 - which is listed as the lead commission, the lead agency

09:40 - for this type of permitting, it indeed has to issue the certificate

09:44 - of public convenience a necessity before the process even starts.

09:48 - Once that process, once they have done that, the statute allows limited

09:52 - and narrow action by state agencies to be involved to do that count.

09:56 - So if I could just follow up on

10:00 - your argument.

10:02 - You agree that the Environmental Hearing Board

10:05 - is part of the regulatory

10:08 - process in the Commonwealth?

10:10 - I do not, Your Honor.

10:12 - You do not. I do not. Not the regulatory process.

10:14 - They are not involved in

10:15 - drafting regulations, issuing regulations, enforcing regulations, cept

10:20 - except the process in Pennsylvania has multiple steps in it.

10:24 - And the Environmental Hearing Board is one such step.

10:28 - If you're just discussing the regulatory process,

10:31 - I would respectfully disagree with you that they are not involved

10:34 - in promulgating the regulations or issuing the permits underneath.

10:38 - They are separate, completely independent, separate state agency

10:42 - that reviews permits once the EPA has finally issued them.

10:45 - Except the regulation doesn't become final until after 30 days,

10:50 - which is the period of time in which someone has the right to seek review.

10:54 - Before at the Environmental Hearing Board.

10:57 - The Environmental Hearing Board statute does have a provision that permits

11:00 - do not become final.

11:01 - Yes, but this federal courts have been quite clear

11:04 - that pencil, for purposes of federal jurisdiction, states are not free

11:08 - to decide when they think their permits are final or enough for jurisdiction.

11:12 - It's very clear that the EPA's actions are final.

11:15 - They're applicable to the permettere, the permit two years required

11:19 - to comply with them from day one

11:21 - and federal courts would have jurisdiction over those permits.

11:24 - In this situation, how do you how do you reconcile

11:28 - that view with

11:31 - what the third Circuit itself

11:34 - stressed in Bordentown?

11:37 - It seemed to me that the Bordentown panel was

11:42 - was at pains to to emphasize

11:46 - that the air was not meant to displace

11:50 - whatever administrator of process the state set up.

11:54 - And I'm not sure how your argument doesn't contravene that.

11:58 - Or are you just asking us to disregard Bordentown

12:02 - We're not asking you to disregard Bordentown at all, Your Honor,

12:06 - but we are asking to pay attention to at time of Bordentown was issued

12:10 - September 2018, the Third Circuit issued three cases within 60 days of each other.

12:15 - All addressing this issue dealt what was referred to as Riverkeeper three

12:19 - border towns.

12:20 - Next day Riverkeeper for a Riverkeeper three and four.

12:23 - The court

12:24 - specifically mentioned the Berkshire environmental case for Massachusetts.

12:29 - Massachusetts has the same setup as New Jersey,

12:31 - as does New York and Maryland, for that matter.

12:34 - An internal eight group within that environmental state agency,

12:38 - which reviews permits before they're issued and final.

12:41 - And the Third Circuit

12:42 - specifically said you cannot use cases like Berkshire Environmental

12:46 - from Massachusetts to apply Pennsylvania because the Pennsylvania law is different.

12:50 - The view is completely separate.

12:52 - Independent agency.

12:53 - Massachusetts law is just like New Jersey law.

12:56 - So the court was also saying you can't apply cases like Bordentown

12:59 - in Pennsylvania because the is completely separate independent agency.

13:04 - It is not, as in New Jersey,

13:06 - within the Office of Legal Affairs under their Jersey DEP in issuing

13:10 - recommendations to the commissioner who then issues a final permit in New Jersey.

13:14 - Once that final permit is issued, it goes directly to the third Circuit.

13:18 - There is no fee in New Jersey, otherwise it go to the appellate

13:21 - division of Superior Court, which is like we all agree, preempted that.

13:24 - So because New Jersey has a different process,

13:29 - I mean, our environmental hearing board happens to be independent of the DEP.

13:34 - But I would just ask you the obvious question.

13:37 - So what I mean, the the Environmental

13:41 - Hearing Board is not involved in

13:45 - deciding or hearing a civil action

13:49 - and that is, to me, the essence of this entire

13:55 - appeal.

13:56 - It's the Commonwealth Court.

13:58 - So Christine and Judge Klein are focused on,

14:02 - you know, in his decision in the middle district.

14:04 - So it doesn't make a difference that what we're talking about here.

14:08 - But for the H.B.

14:10 - is not a civil action.

14:12 - You are absolutely correct.

14:13 - The Commonwealth Court focus on those two words out of the entire statute.

14:18 - I would suggest to this court that it does not matter

14:21 - what label we ascribe to proceedings from the Environmental Hearing Board.

14:25 - How could that be?

14:26 - The the statute itself talks about civil actions.

14:31 - I mean, how how could we not be focused

14:33 - on what the statute tells us to focus on?

14:36 - Because the statute prescribes the one and only way to a challenged DEP permits,

14:42 - and that is through a civil action in front of the third Circuit.

14:46 - The civil action definition doesn't back up.

14:49 - Sorry, the proceeding for the Bible hearing board, no matter what

14:52 - you call it, the Environmental Hearing Board is already preempted.

14:56 - If you look at 717 in and of prescriptions for what

14:59 - it takes to be involved in the natural gas pipeline permitting,

15:03 - the HB is preempted so matter what you might call they proceed in front of SB

15:08 - It doesn't matter because they're not involved.

15:11 - If you choose to really focus on that, I would I would direct you

15:15 - to the cases cited in Trans Go's amicus brief, particularly the U.S.

15:19 - Supreme Court decisions

15:20 - and Sullivan and Delaware Valley, where the US Supreme Court refused to hold

15:24 - that civil action did not include administrative court hearings.

15:28 - It said interpret civil action according to the intentions

15:33 - of the statute that was designed to effectuate with this statute.

15:37 - How does this statute express an intention that proceedings

15:41 - before an ALJ or an ALJ like person or civil actions?

15:47 - This statute in 717 already

15:49 - one prescribes one and only way to challenge permits

15:52 - at the applicable Circuit Court vs Civil action, which makes sense

15:56 - because for every all agreed proceedings for the Circuit Court is a civil action.

16:00 - Also, if you look back to 717 in D

16:03 - where requires the agency acting with the permits

16:07 - coordinate with the commission to create a consolidated record,

16:10 - and that record shall be used for judicial review.

16:15 - That's the clear language of the statute directs that that makes perfect

16:18 - sense with the third Circuit that does a record review.

16:21 - It makes no sense to drag Environmental Hearing Board in

16:25 - because you don't think a civil action was what happens reliable hearing board

16:29 - because in front of the Environmental Hearing Board

16:31 - it's a completely new record.

16:32 - They do a de novo review.

16:34 - They allow evidence and documents

16:36 - that even didn't exist at the time BP issued the permit.

16:40 - So the record from the HB is completely it's substantially different

16:44 - from the record.

16:45 - The statute dictates shall be used for judicial review.

16:49 - So there's no way to harmonize the view that the H.B.

16:52 - has jurisdiction with requirements 717 and two, that the record

16:56 - shall be used for judicial review because that's not what they use.

17:00 - It does make perfect sense

17:01 - to harmonize it with Third Circuit, which is exactly what Congress said.

17:05 - The applicable circuit court do.

17:07 - A civil action uses a record that FERC and the state created,

17:11 - and it goes up to them for review.

17:15 - Any other questions?

17:17 - Thank you.

17:19 - You obviously, then I disagree with Judge Connor

17:24 - in his decision Insurance Continental Gas pipeline.

17:27 - Yes, we do, Your Honor.

17:28 - We think the judge, he agreed with the Commonwealth Court.

17:31 - He did.

17:32 - We would say he made some of the

17:34 - public view some of the same mistakes the Commonwealth Court made.

17:38 - In fact, if you look at his references, the Bordentown case in New Jersey,

17:41 - he said once the jersey is finished, there's administrative review.

17:44 - Well, Mr.

17:45 - Review doesn't exist in New Jersey after his sentence.

17:47 - He clearly didn't fully understand the distinction

17:49 - between New Jersey law and Pennsylvania law.

17:51 - So, yes, we disagree with that opinion.

17:53 - Also.

17:54 - All right.

17:54 - Thank you, sir.

18:07 - Good morning, Your Honor.

18:09 - May to please the court.

18:09 - My name is Andy Baucus, counsel for appellant, Adelphia Gateway.

18:13 - It's my pleasure to be joined this morning with my colleague on the briefs,

18:16 - Pat Nugent.

18:19 - Congress

18:19 - amended the Natural Gas Act in 2005 to bolster its role

18:23 - in establishing a comprehensive national energy policy.

18:28 - Motivated by concerns over energy security and the threat posed by foreign regimes

18:33 - propped up by energy exports, Congress aimed

18:36 - to reduce reliance on foreign sources of energy.

18:40 - The Natural Gas Act establishes uniform rules for natural

18:43 - gas infrastructure to avoid the vagaries of 50 different states

18:47 - and 50 different procedures.

18:49 - The ACT subjects final permit decisions under the Clean Air Act

18:53 - to expedited Federal Court review to prevent what would otherwise be

18:57 - a series of sequential administrative and court appeals

19:00 - that could kill a project with a death by a thousand cuts.

19:04 - The Commonwealth Court's decision disrupts that uniform framework.

19:08 - The core issue here is whether the natural gas Act gives the Environmental

19:13 - Hearing Board jurisdiction equivalent to that of the Third Circuit.

19:17 - It does not.

19:18 - Given the pressing national need that Congress sought to address,

19:22 - we asked the court to overturn the Commonwealth Court's ruling and affirm

19:25 - that the Lacks jurisdiction over final DEP decisions

19:30 - for interstate natural gas pipelines governed by the Natural Gas Act.

19:34 - But the DEP decision is only final

19:38 - if no appeal is taken to the CHP within 30 days under state law.

19:43 - But that's not the test under federal law.

19:45 - Under federal law,

19:46 - interpreting the federal statute as we see from the US Supreme Court.

19:50 - The context of the federal law matters.

19:53 - And here the context is under federal law.

19:56 - The EPA's decision is final.

19:58 - There's nothing left for DEP to do once it renders a final decision.

20:02 - Do you disagree with what the Third Circuit wrote

20:06 - in Bordentown to the effect that the the game?

20:10 - No. It's even conceding everything you said about Congress's

20:14 - intent generally, that another intention

20:21 - was to let the state administrative process,

20:24 - whatever that process might be, play out,

20:27 - that it wasn't meant to displace that or disagree with that interpretive action.

20:31 - I disagree because once you have a federally final decision,

20:36 - that is your ticket to get into federal court,

20:39 - I think the challenge here or the issue here

20:43 - and we see this in the decision below is that the Commonwealth Court below

20:47 - looked at the definition of civil action as interpreted under Pennsylvania law.

20:52 - That's not the question.

20:53 - The question here is what does civil action mean under the Natural Gas Act?

20:58 - That's the question.

21:00 - Are you maintaining in that regard that there of that whole

21:03 - enormous universe or set of universes or

21:08 - that that has been set up in the

21:12 - in the not in the national federal system

21:16 - of of Algiers,

21:19 - that those are all civil actions all in

21:21 - somebody is litigating something

21:25 - in front of some ALJ and some federal agency somewhere.

21:28 - Those are all civil actions and and if you maintain that

21:32 - how is that an action law or equity?

21:36 - That is not what we're saying.

21:37 - What we're saying here is that we need to look at the definition

21:40 - of civil action in the context of the Natural Gas Act,

21:43 - not the Social Security Act, not any of the other federal legislation.

21:47 - And this is what the U.S.

21:48 - Supreme Court says With respect to interpreting federal statutes,

21:51 - you have to look at what that statute we interpret statutes, not provisions.

21:56 - And here Congress had to envision 50 different states

21:59 - doing 50 different things.

22:01 - We need to look at the term civil action, expansively

22:04 - not limiting to the provision here.

22:07 - And I think this ties back in

22:09 - with some of the questions that Justice Donohue was raising earlier.

22:13 - What DEP did here was issue a plan approval.

22:16 - This is under the federal Clean Air Act, and that comes from there's a provision

22:20 - in the Clean Air Act that defines the states permitting authority.

22:25 - This is in our brief, but it's a 42 U.S.C.

22:28 - 7661, Subdivision four.

22:31 - And the Clean Air Act defines permitting authority to mean the air

22:36 - pollution Control Agency authorized by EPA

22:40 - to carry out a permitting program that is DEP.

22:44 - That is not the only hearing board.

22:47 - In fact, EPA does the unusual thing of codifying

22:51 - the EPA's regulations under a federal law,

22:54 - 40 CFR section 52 Act 2020, where DEP regulations are set

22:59 - forth under federal law, not the FBI's decisions.

23:04 - And let's

23:05 - also keep in mind that this is a rather unusual case.

23:08 - You have the state arguing preemption, but it's not just DEP.

23:13 - You also have the only hearing board below

23:16 - agreed with DEP that they were preempted.

23:19 - And on top of that, we have the Federal Energy Regulatory

23:22 - Commission, which, as we see under the Natural Gas Act, is the lead agency.

23:27 - All roads lead to FERC

23:29 - and what we see here in the federal authority,

23:31 - and this is in our reproduced record.

23:34 - Page 364, A FERC

23:36 - identified the DEP plan approval

23:39 - as the necessary federal authorization, not any H.B.

23:44 - order, but DEP,

23:48 - my friend for the coals, would argue that what the CHP really does

23:51 - is it's the functional equivalent of issuing a permit.

23:55 - But we have to be honest here.

23:56 - If we're going to be talking about functional equivalence of issuing permits,

24:00 - then we need to say that the key is also the functional equivalent

24:02 - of a civil action.

24:04 - But as my friend from DEP pointed out, you don't need to get there

24:07 - because this issue can be decided on preemption alone,

24:10 - which is that under the the Natural Gas Act,

24:14 - the only authority that states has

24:17 - is authority under the Clean Air Act.

24:19 - And here that authority is is given exclusively

24:22 - to DEP, not to the Environmental Hearing Board.

24:26 - And I also want to address

24:30 - a thought about due process here, because this is important.

24:34 - Federal law establishes

24:37 - a direct right of appeal to the Third Circuit.

24:41 - Not only that, on an expedited basis and federal law provides

24:45 - and this is under section 717rd3 that if federal law,

24:50 - if the court finds that DEP decision is inconsistent with federal law,

24:56 - there is an obligation for the court to remand the case back to DEP

25:00 - with a deadline for DTP to decide.

25:03 - This is important

25:05 - because there was a clear avenue for the calls

25:08 - to appeal directly to Federal court and on top of that

25:11 - the EPA's own regulations and again this is in our briefs

25:14 - provide that there is an opportunity for protesters if they are upset with

25:19 - where he might go to file a protest

25:22 - with DEP before he makes a decision.

25:26 - Counsel

25:28 - The problem I have with

25:30 - your argument is that it forces us to really

25:36 - either ignore or squint

25:39 - when we're reading the language

25:44 - in Section 717 ar.d one,

25:48 - because what it says is

25:51 - that the circuit shall have original and exclusive jurisdiction

25:55 - over any civil action for the review of an order.

26:00 - Okay.

26:01 - You're asking us to read

26:04 - that as if it is the only way

26:08 - that a review can take place is by way of a civil action.

26:13 - And that's just not what it says.

26:15 - I mean, there is a way to bring this civil action, as you just said.

26:19 - I mean, bring a single civil action by filing a petition

26:23 - or something of that nature.

26:27 - But this says nothing

26:29 - about what happens when

26:33 - under the state system there is another way to conduct

26:38 - a review of

26:40 - the decision of here, the DEP, which is the CHP,

26:45 - which is not in any way, shape or form a civil action

26:49 - under either Pennsylvania law or, generally speaking, federal law.

26:54 - Let me respond with two things.

26:55 - First of all, we have to read the full sentence in context.

26:59 - It's not just a civil action, but it's a civil action to review

27:03 - an order of an agency to issue

27:05 - a condition or deny a permit.

27:09 - The CHP does not issue condition or deny permits.

27:13 - They don't.

27:14 - And so we can't get there from that from that way.

27:17 - But to your point in terms of is this the only way to read this?

27:20 - The answer is yes, because Congress established a uniform system understanding

27:25 - that there are 50 states in our country with 50 different ways of doing things.

27:30 - Another way to look at this, and this is not inconsistent with Schneider

27:33 - when the US Supreme Court case, it's like a restaurant that has a fixed menu.

27:38 - You get what's on the menu and that's all you have

27:41 - because we have an interlocking scheme in the way it's supposed to work.

27:45 - And let me t set out a bit

27:47 - because I think folks need to think about how this works in practice.

27:50 - Let's imagine a scenario in which

27:53 - the CHP process moves forward

27:56 - and the CHP issues an order that says, for example, DEP, you goofed,

28:00 - you need to rewrite your permit that says this condition.

28:05 - And DEP might think that's going to impact thousands of other permits.

28:09 - How does DEP appeal that

28:12 - under the Cole's theory?

28:13 - Presumably DEP has to take that order, then

28:17 - issue a permit and then appeal its own permit to the Third Circuit.

28:20 - There's a standing issue there.

28:23 - Another way to do it

28:24 - is maybe they say, Well, that's where you go to Commonwealth Court.

28:27 - Well, that's what happened in this case here

28:30 - with Adelphia, where Adelphia went to federal court

28:33 - and they said full faith and credit, you have to file the Commonwealth Court.

28:37 - So the natural Gas Act establishes a well articulated

28:40 - and by that I mean an interlocking system of procedures.

28:45 - And that's that's the only procedure that that can be followed here,

28:48 - except the Commonwealth Court here didn't affirm what the H.B. did.

28:53 - The Commonwealth Court here said it was all right to go to the week period and now

29:01 - the the

29:03 - the challengers could go to the Third Circuit.

29:06 - And what is your concern with this, the amount of time it takes?

29:10 - Yes, the amount of time.

29:12 - It's a different record.

29:14 - We already have Third Circuit clear case law that points out the DEP

29:19 - decisions can be challenged there.

29:21 - And so this is a classic case of conflict preemption.

29:24 - You cannot have the same federally final decision

29:29 - subject to appeal in two different spots.

29:32 - That is conflict preemption.

29:33 - We saw this in the this own courts wise decision in 2003

29:39 - in which this court found that

29:42 - the state administrative agency law

29:45 - two X was in fact preempted because it was inconsistent

29:49 - with federal due process requirements, where federal law

29:53 - did not require a hearing, but state law did.

29:56 - And this court found that under supremacy clause, you have to follow federal law.

30:01 - And this

30:02 - is an important point because the decision below

30:05 - casts the B as some sort of scheme in terms of Pennsylvania scheme.

30:11 - But the reality is that the act does one thing.

30:14 - It determines whether under state law a Pennsylvania decision is final.

30:19 - That's all it does.

30:21 - And we already know from the US Supreme Court that it is

30:24 - not a states law definition of finality that controls

30:28 - it is federal laws, definition of finality that controls.

30:32 - And the reality is that once the EPA makes a final decision,

30:37 - that decision is subject to to final

30:41 - appeal before the Third Circuit.

30:44 - And if I may wrap up.

30:47 - So Congress amended the Natural Gas Act in 2005 to bolster

30:51 - its role in establishing a comprehensive national energy policy.

30:56 - And the Clean Air

30:58 - Act establishes that DEP as the permitting authority

31:02 - is the only permitting authority in the US Supreme Court's decision.

31:05 - And Martin versus

31:06 - Occupational Health and Safety Review Commission and the Commonwealth Court's

31:10 - North American refractory case demonstrate that DEP

31:14 - not thp has sole responsibility to interpret

31:17 - and enforce its regulations.

31:20 - That is the opposite

31:21 - or what the courts are arguing is the opposite of Congress's intent

31:25 - to streamline the permitting and review necessary for natural gas infrastructure.

31:28 - And let me close on this.

31:30 - This Court's holding can be limited

31:33 - when it comes to DEP exercising its federally delegated role

31:37 - in connection with interstate natural gas pipeline projects.

31:40 - The EPA's permit decisions are subject to review exclusively before the

31:44 - Third Circuit or not at all.

31:47 - Thank you, counsel.

31:48 - Let's hear from appellant.

32:17 - Good morning.

32:18 - Chief Justice. Justices of the Court.

32:20 - May it please The Court My name is Michael de Shaw, Encino.

32:23 - I represent the individual Appellees in this matter Coal West

32:28 - and Wire box in the Shelly's

32:33 - Your Honor.

32:35 - Despite the arguments presented by the appellants,

32:37 - the case today is relatively straightforward,

32:41 - and each appeal is available from the Air Quality Plan approval here,

32:46 - because Pennsylvania has rights under the Clean Air Act to implement that act

32:51 - or carved out from the general preemption worked by the Natural Gas Act.

32:56 - NCA and those rights include the role of the environmental

33:00 - Hearing Board in Pennsylvania's own state

33:04 - administrative process and scheme.

33:07 - The appeal is not a civil action,

33:10 - and thus the exclusive jurisdiction clause of 717.

33:14 - Already one that counsel has mentioned is not even invoked.

33:19 - This is consistent.

33:20 - I'm sorry, counsel, but what

33:24 - opposing counsel's

33:27 - argument that SCOTUS has spoken

33:29 - otherwise to that proposition,

33:33 - What's the definition of a civil action when justice go?

33:36 - You and I were asking him about yes

33:38 - civil action and whether it encompassed ALJ proceedings or not law or equity. So.

33:43 - Correct, Your Honor, I think there's a long tradition

33:46 - and this court has ruled

33:49 - that a civil action intends

33:52 - to refer to court actions in courts of record

33:56 - common law damages, equitable powers.

34:01 - The Environmental Hearing Board is not a court of law that set forth

34:04 - in their in their founding document, the Environmental Hearing Board Act.

34:08 - And I think that the term civil action has been

34:13 - not only defined by this court, but also in federal courts

34:18 - to specify that we're talking about a court of law or equity.

34:21 - And as I indicated in my briefs,

34:24 - you can find some indications of the meaning of civil action,

34:27 - even in the context

34:28 - of of the Clean Air Act, which is the very act that's being implemented

34:32 - under this plan approval, where they act to that act certainly asking

34:35 - should we take into account

34:39 - considerations of comity at all when we

34:44 - consider whether

34:47 - allowing the prospect of simultaneous

34:51 - appeals before the B

34:53 - and in the Third Circuit

34:56 - as being an intention is not open conflict

35:00 - with the preemptive intentions of the MGA?

35:05 - Well, Your Honor, I think that the fact that

35:09 - that there's any potential for conflict does not rise to the level of conflict

35:13 - preemption, to get to preemption, we have to set aside

35:16 - the plain language of the statute, which this court has ruled.

35:21 - And in fact, the Third Circuit has also ruled,

35:26 - has to be only set aside in a situation where

35:32 - what you what you see is essentially an absurd result.

35:37 - You have to have an either an impossibility that's created

35:41 - by the plain language of the statute or an actual clear absurdity.

35:46 - And our position is that it's not at all absurd to allow

35:51 - the state administrative process to run its course.

35:54 - That's what the board in down court, the Third Circuit

35:57 - itself, which would receive jurisdiction over this cases

36:00 - if the court followed the desires of the DP and Adelphia.

36:05 - But the Third Circuit itself has ruled in Bordentown

36:08 - that state administrative, the internal administrative process of a state

36:12 - is not preempted by the Natural Gas Act,

36:16 - and therefore it is sensible

36:19 - that the Commonwealth Court here adopted that reasoning

36:23 - and independently took a look at the plain language and

36:26 - what's required and found that that that test was not met.

36:31 - It's not at all absurd and therefore you don't

36:34 - have to set aside the plain language and the civil action.

36:37 - The Environmental Hearing Board appeal here is just not a civil action.

36:41 - Therefore you don't apply.

36:43 - 7171 What you use is 717b

36:48 - and that portion of the statute is the alongside.

36:52 - RG one was part of the natural gas amendments of 2005

36:58 - and counsel was talking about the fact that

37:02 - there had been

37:02 - concerns that things were taking too long to get interstate

37:06 - pipelines through the system and fully approved.

37:10 - And that's why Congress took up amendments

37:14 - they cited as death by a thousand cuts notion and so forth.

37:17 - And there's testimony in the briefs that are offer and even quoted

37:21 - in one of the early cases of the First Circuit about

37:25 - the concern about sequential appeals, administrative appeals,

37:29 - state court appeals, in federal court appeals, we can't get anything done.

37:33 - That was a FERC staffer.

37:34 - And so what Congress do, they they passed the amendments.

37:38 - But what we don't

37:39 - what we don't have from the legislative history is any draft language

37:42 - or discussion between members of Congress of forming this language of civil action.

37:48 - What we can deduce is that they tried to offer some relief to the industry

37:53 - because they they eliminated

37:56 - a significant part of that chain of sequential appeals.

37:59 - They eliminated the federal court

38:01 - appeals at the lower courts, and they eliminated state court appeals.

38:05 - And so they put the language in at 717.

38:08 - Do you want us saying civil actions,

38:11 - knowing based on a

38:12 - plain understanding and a plain language understanding what civil action is?

38:15 - It's a court action that they would still be preserving

38:19 - the administrative appeals that can happen at the state level in which do happen.

38:24 - So 717b is the is the carve out

38:29 - that Congress installed to say that states rights

38:33 - under

38:36 - the implementation of the Clean Air Act

38:39 - would not be affected by anything in the chapter in the Natural Gas Act.

38:44 - And that's a broad carve out.

38:47 - Counsel would like the Court to believe that it's a very narrow

38:50 - carve out that it only applies to permitting.

38:55 - But in fact, the state of Pennsylvania has broad rights

38:58 - under the Clean Air Act to do what they need to do to implement it

39:04 - despite the Natural Gas Act.

39:06 - So the preemption that they seek

39:09 - is not there under express preemption because the language says civil action, it

39:14 - and that leaves each of the appeals on the table.

39:17 - It's not there under field preemption because there's an explicit provision

39:22 - in the Natural Gas Act seven 170, which has the carve out

39:26 - for state involvement, which we believe is quite broad.

39:30 - And I think you can take into account that the states

39:33 - involved in anywhere from imposing regulations,

39:38 - setting up

39:40 - systems for making sure

39:43 - that that the not national name and air quality standards

39:47 - are being met throughout the state.

39:50 - They're called set of plans that have to be developed by the state.

39:53 - They have separate regulations, have to come on line at the state level

39:57 - to make sure. Yes, sir. Can I ask you to

40:02 - address an

40:02 - argument that your opposing counsel made, which that which is that the review

40:07 - that takes place in the circuit court

40:10 - has to be a review of the record

40:14 - made before the regulatory agency here at the DEP,

40:19 - and somehow that record becomes trends morphed

40:24 - or otherwise is different

40:28 - after an environmental hearing board review.

40:32 - Is that correct?

40:33 - It is different.

40:34 - That's correct.

40:35 - And and when when that occurs and the record is not

40:40 - what what it weighs before the DEP, does that create a problem?

40:46 - When reading this act in context,

40:50 - we we don't believe that it does, Your Honor.

40:52 - And that is because

40:56 - the 717 and that was being referred to

40:59 - is a coordination of essentially it's a process coordination

41:05 - provision of the act.

41:07 - And when we're talking about an expanded record,

41:12 - that is something that oftentimes the circuit court would would seek

41:16 - the administrative record as it stands

41:19 - without any appeal, is very thin.

41:22 - And in fact,

41:24 - as recent as

41:25 - 2013, DEP was arguing in a case, I believe this Tennessee gas pipeline case

41:31 - in favor, they had the opposite position at that point.

41:34 - They were stating in their presentation to the court that the record

41:40 - is not expansive enough without an Environmental Hearing Board Act

41:44 - because the regulations have put a good bit of the duty of developing

41:49 - that record into the Environmental Hearing Board's hands.

41:53 - So from a state perspective, that's helpful.

41:55 - From the Federal Court's perspective, it's helpful in making their final decision

41:59 - to have a full record.

42:01 - But what is the act required?

42:03 - Does the ACT require a record

42:07 - from any particular entity within the state?

42:13 - I mean, that you're

42:14 - opposing counsel's argument appears to be

42:17 - that what it means is that it has to be the record

42:21 - before the DEP, not the record before the Environmental Hearing Board.

42:26 - We are.

42:26 - I think the way it would work in practical terms is that

42:31 - if an

42:31 - environmental hearing board process goes forward

42:35 - and a record is developed there, ultimately the decision is made.

42:38 - The Environmental Hearing Board is going to

42:41 - provide direction to the DEP to take an action

42:45 - that may be a modification of of the the plan approval.

42:50 - DEP will then carry out that modification.

42:53 - They will have to take into account the record, the direction from the HBI

42:56 - and they will issue the new permit, that new permit.

43:00 - So there is a new DEP record at that point in time, correct?

43:04 - It is.

43:04 - It is an expanded record that includes everything that happened

43:07 - in front of the Environmental Hearing Board.

43:09 - And that and that new record would be what would be sent if,

43:12 - in fact there were still parties who were who are dissatisfied

43:16 - and wish to take that action to the civil sorry, to the Third Circuit.

43:21 - They would have that full record from from the from the get on that

43:25 - from that remand in that modified permit.

43:28 - Okay. Do we have any other questions from the court?

43:30 - I just have one under your scenario, would a

43:35 - party be able to take their

43:37 - appeal from DP directly to the Third Circuit

43:41 - as well as having the option of taking their P appeal

43:45 - to the Environmental Hearing Board

43:49 - if they did it in a timely in a timely manner?

43:51 - Yes, that the HB allows for 30 days.

43:55 - And my understanding, based on the

43:58 - the case of Riverkeeper to the court, indicated that they believe

44:02 - that the federal timeline could

44:05 - either be four years or the doctrine of latches.

44:08 - So therefore you could actually you could actually have

44:11 - a full appeal process carried out,

44:15 - potentially get to the end of that and still have the ability,

44:19 - if dissatisfied with the decision to appeal to the Third Circuit,

44:23 - even if no action was required by the DEP and you're

44:27 - out of that scenario would be, let's say my clients wanted to appeal.

44:30 - We got through the H.B. and said,

44:34 - Well, we're going to deny this.

44:36 - We're going to allow the permit to stand as is.

44:38 - So now DP doesn't have to take an action.

44:41 - But we would argue that at that point

44:44 - the availability of appeal to the Third Circuit still exists.

44:47 - What I'm concerned about is the potential for a dual track appeal

44:52 - where some litigants may choose to go from DEP directly to Third Circuit,

44:58 - and other litigants may choose that they'd rather go through the fee

45:03 - and then to the Third Circuit, assuming that timeliness isn't an issue.

45:07 - And doesn't that create a an issue

45:10 - within this arena of litigation where you have a number of

45:16 - decisions and precedents being created by one track

45:21 - and then another bowl of cherries being created by another track,

45:26 - isn't that really one of the reasons

45:28 - why the federal preemption was set down

45:33 - for this area of concern?

45:36 - Thank you, Your Honor, for that question.

45:39 - And indeed, when you're talking about matters such as concurrent jurisdiction

45:44 - and preemption, you have to look carefully at what

45:48 - preemption requires terms of the standard

45:52 - and what it what it says essentially is that the federal law

45:56 - and if we look at the conflict preemption

45:59 - prong of that, for example, if you look at the federal law

46:01 - and it states that you must find that there is either

46:05 - an impossibility of carrying out the federal law or

46:10 - that I mean, that that is the primary prong of that.

46:15 - And so what you say is, well, it's not impossible.

46:17 - Our position would be it's not impossible for potentially

46:20 - in a small number of scenarios, for two things to go forward at the same time.

46:25 - But the courts are well

46:26 - equipped to deal with scenarios where there are more than one matter going on.

46:31 - There is

46:33 - there are preclusion doctrines,

46:35 - there are procedural steps that can be taken,

46:39 - collateral estoppel, for example, but it might not be quite

46:43 - as tidy as as necessary as as the industry would like.

46:47 - But the fact of the matter is that this is what the Congress has given.

46:51 - They have left open the door to administrative review.

46:54 - And if if that is not tidy enough,

46:58 - parties are interested, are always free to lobby Congress for change in the law.

47:02 - But I think we have the law that we have.

47:04 - Well, I think I have one more question to follow on that

47:07 - and kind of what ties into my concern about this dual track process

47:12 - is that particular in this area, we're dealing with environmental issues

47:16 - where we have obviously competing interests with people

47:20 - who want to maybe propagate energy in one way

47:23 - and people who have other environmental concerns.

47:26 - And so

47:30 - doesn't it

47:30 - just make it easier for these cases to go from

47:33 - DEP directly to the Third Circuit so we can get an answer?

47:37 - Either these companies can move on or people will get an answer

47:42 - much more quickly about the status of their environmental concerns. Or.

47:47 - Thank you for that question.

47:48 - I appreciate being able to address sort of the nub of

47:52 - why my clients are here.

47:55 - We believe that the Environmental

47:56 - Hearing Board provides a much greater level of due process.

48:00 - In fact, it's the process that the Pennsylvania General Assembly

48:04 - sought to give the citizens of Pennsylvania when they're dealing with

48:08 - environmental impacts, maybe very serious changes in their quality of life

48:13 - based on, you know, a new development that's going to involve pollution.

48:17 - And so they have these rights at the Environmental Hearing Board

48:20 - to develop a record to challenge the assumptions that have been made.

48:26 - And we see we've seen in case law

48:29 - and in briefs, the fact that in Pennsylvania,

48:33 - the DEP is often challenged to do more than simply taking the information

48:38 - that's provided by the applicant,

48:39 - do an analysis of it, but they can't do anything independent.

48:43 - Typically they don't have the bandwidth for it.

48:45 - And so often the data that's put forward about the environmental impact

48:49 - put forward by the applicant is all that is in the record.

48:53 - And so it's very difficult for people concerned about the environment,

48:57 - maybe something that's going to affect them very directly to have a chance

49:01 - of prevailing at the Third Circuit on the thin record that they get,

49:05 - unless they have their state administrative rights in full counsel,

49:10 - why couldn't the record be developed in the third Circuit?

49:15 - Let's say the challenge

49:16 - to the DEP regulated by directly in the Third Circuit, it's a civil action.

49:21 - It is sitting in law or equity, it's an evidentiary proceeding.

49:25 - Why couldn't the record be further developed in the Third Circuit?

49:31 - Well, Your Honor, my understanding is certainly that when the Third Circuit

49:35 - takes up these cases, there are essentially record review cases.

49:40 - I mean, there could be some instances where the Third Circuit

49:43 - as an appellate court

49:45 - might say, we can't work with this.

49:47 - We're going to remand it back down to the state to develop the record

49:53 - and then doing so, that sort of takes away the whole rationale

49:56 - that we're trying to speed things up, going back down to the state anyway.

49:59 - But what you're describing what occurs in the third Circuit is

50:03 - an appellate function.

50:06 - That's not what it is.

50:07 - It's a civil action.

50:09 - It's a court sitting in law or equity.

50:12 - So I don't know, maybe maybe

50:14 - I don't quite understand what this process in the Third Circuit would look like.

50:18 - But certainly if the Third Circuit was uncomfortable with the record

50:22 - that has before, what would preclude remanding

50:28 - for for the development of the record,

50:31 - which I can only go based on,

50:33 - on the precedent that I've seen or the cases that have come

50:37 - before the circuit courts under the 717 R&D one.

50:42 - There's several in here in the third Circuit,

50:45 - couple in the second and the first.

50:47 - And I didn't see in any of those cases where the court said

50:52 - that we're going to now to develop a develop a record

50:55 - that's involving evidentiary proceedings and it's sort of adversarial,

50:59 - developing a record in that manner.

51:01 - I haven't seen that.

51:02 - So what's the standard review in the third Circuit?

51:05 - Is it what what how did they review what the DEP did?

51:11 - I mean, because what you're

51:13 - talking about now doesn't sound like a civil action at all.

51:16 - It sounds like an appeal to the Third Circuit.

51:20 - I agree.

51:22 - Well, but

51:23 - but that's not a civil action.

51:25 - That's an appeal. Correct.

51:28 - That is the language that Congress chose.

51:30 - And I think they chose that language not necessarily to direct

51:34 - the circuit courts

51:36 - to hold a particular kind of proceeding that would be different than any other.

51:40 - The appeal that would come to them.

51:42 - But I think they did so so that so that there would be

51:46 - an understanding that administrative appeals are not

51:52 - guided

51:52 - or governed by that clause 717 already.

51:55 - One if I might just add

51:58 - one thing, I would note that with reference

52:02 - to the other third Circuit cases, the Riverkeeper three and Riverkeeper

52:07 - four, Riverkeeper three comes on on September 4th or fifth,

52:12 - fourth and Bordentown, which is the case

52:15 - that the Commonwealth Court here has relied upon, came the following day.

52:19 - And that's the one that says

52:20 - we're not going to mess with the internal administrative process of the states.

52:24 - And then Riverkeeper four comes a couple of weeks later.

52:26 - As counsel pointed out, however, that case is noted

52:30 - at the top that it isn't a non plus essential decision,

52:34 - so it should not be given really any weight by this court.

52:37 - I think the final word on the presidential word on the matter in the third Circuit

52:42 - would be Bordentown, but for the fact that as count

52:46 - as Your Honor mentioned, the transcontinental case,

52:49 - which is a very similar scenario to this,

52:53 - an invocation of 717

52:55 - already one to kick a case out, an appeal out of the Environmental Hearing Board

53:00 - middle

53:00 - district of Pennsylvania said, no, we're going to follow Bordentown

53:03 - or we're going to follow for the Commonwealth Court in coal.

53:07 - And we are finding that there is no reasonable likelihood

53:09 - of success on the merits.

53:11 - And therefore we deny the petition.

53:13 - The motion for preliminary injunction, the Third Circuit Court,

53:17 - in fairly short order and several months,

53:21 - they they took a look at that and they issued a judgment

53:25 - affirming the middle district court,

53:28 - middle district court said no reasonable likelihood of success, that

53:31 - you're going to stop this environmental hearing board case from going forward.

53:35 - And we are still waiting for the opinion of of the Third Circuit.

53:39 - But I think we're I think this court would be in good company to find that

53:43 - the Environmental Hearing Board appeals would be should go forward in this case,

53:48 - It doesn't doesn't the Third Circuit send us mixed signals

53:55 - in that

53:56 - in that corner, in that compressed timeframe that it was doing Bordentown

54:00 - and it was doing the Riverkeeper and and why should we

54:05 - why should we

54:07 - consider

54:09 - this on the basis of which one of their decisions

54:13 - was published or not published or precedents or non presidential,

54:18 - given that it's all just for persuasive value

54:21 - for us anyway, since we're not bound by any of it.

54:24 - That's true.

54:25 - You're not bound by it, but it does offer

54:29 - guidance on an issue of federal law

54:32 - for the court. I agree.

54:33 - I think of their decisions offer us important rights.

54:36 - My question was,

54:39 - I think a moment ago you were

54:42 - saying we should stand on Bordentown and not on

54:47 - Riverkeeper three and four, presumably five,

54:51 - because

54:54 - the four and five at least were unpublished and

54:59 - and so those are lesser value.

55:01 - Would why should that seems like a thin reed to stand on, isn't it?

55:05 - I mean, if they're persuasive, they're persuasive if they're they're not.

55:11 - Well, I think, Your Honor, thank you for the question.

55:13 - I think it gives us an indication, it gives the court an indication of

55:16 - of where the third Circuit sits,

55:20 - if there are going to be the court to take up

55:23 - these appeals to decide whether or not

55:27 - they should be heard, What they've done in the Riverkeeper

55:29 - case is essentially say, well, you brought a petition to us,

55:34 - so we have jurisdiction under this clause 717 already.

55:38 - One, we'll take the case.

55:40 - But but even in Riverkeeper three, they weren't saying that

55:43 - any appeal would have been denied.

55:47 - And likewise I think was four and five.

55:49 - This they're addressing finality

55:52 - it Was there a final action of the DEP?

55:55 - If it's a final action, the DEP, then the court ostensibly

55:59 - has jurisdiction to hear a final action here, an appeal from a final action,

56:02 - particularly when you have the language of 717 already one.

56:06 - So I think that's what the Riverkeeper case is go to primarily.

56:09 - But Bordentown goes to preemption because they analyze the civil action term

56:14 - very carefully and find that it does not include an appeal,

56:18 - allows them to go forward.

56:19 - And also, in answer to your question, you're right.

56:21 - Well, I think, you know, the Commonwealth Court

56:24 - sort of dabbled around the edges this also, but, you know, use that.

56:29 - You use the term a final decision or a final order.

56:34 - Well, I mean, if you're looking at Pennsylvania,

56:37 - if you're looking at our law, it's now final until the 30 days is passed

56:42 - and no appeal has been taken to the ETP.

56:45 - So, you know, it's it's

56:49 - in some of these

56:51 - circuit cases actually deal with cases that are appealed

56:55 - within that intervening period, that 30 days

57:01 - that.

57:02 - I do believe that is true, Your Honor.

57:03 - But in fact, one of those cases specifically said

57:07 - you're past the 30 days from from the EPA issuing the permit.

57:11 - In the 30 days you get under the under the state law to bring it to be.

57:15 - So it's too late for you to go there anyway.

57:18 - We're happy to keep it here as a third Circuit, because then it is

57:21 - a final by by the decision of the party who did not appeal it.

57:25 - You have a final order of the DEP at that juncture, correct?

57:30 - Okay.

57:31 - All right. Any other questions?

57:34 - I think you wrapped up a number of times.

57:36 - I think in response to the questions.

57:38 - I think we've got it.

57:39 - I thank you. Thank you very much, Mr. Free.

57:43 - Try to now.

57:43 - Did you introduce I'm sorry. Sorry.

57:45 - Sitting with me is Casey Manahan.

57:48 - She is with the Delaware River Keeper Networks,

57:51 - one of the environmental Amichai Riverkeeper.

57:54 - Riverkeeper.

57:55 - All right. Thank you. Thank you. Thank you. All.

57:59 - The next case that the court

58:01 - will hear is Commonwealth versus Saunders.

58:05 - This is one of two cases that are being argued today

58:08 - involving the standard for police searches of vehicles and the facts of this case.

58:13 - The police pulled over Mr.

58:15 - Saunders after a traffic violation.

58:18 - The traffic stop occurred on a Philadelphia block

58:21 - that had been experiencing a high rate of shooting and illegal firearms seizures.

58:25 - Police approached and asked for an ID and registration, and while Mr.

58:30 - Saunders was retrieving his paperwork with his right hand,

58:33 - they reported that there was something

58:36 - that dropped from his left hand and that they saw it was a gun.

58:40 - The police took Mr.

58:41 - Saunders out of the car, retrieved the gun through the open driver's

58:45 - side door from the floorboard of the car.

58:48 - It was loaded.

58:50 - Mr. Saunders was charged and convicted of illegally possessing the gun,

58:55 - including because of his prior felony and because he lacked a permit.

58:59 - He challenged the seizure of the gun from his car, claiming

59:02 - it was an illegal search.

59:03 - But after a hearing, the trial court rejected that claim and found that

59:08 - the police were permitted to seize the gun because it was in plain view

59:12 - and also because there were safety risks in getting a warrant.

59:17 - Now, the legal doctrine that this case presents

59:20 - relates to the Pennsylvania protection for the privacy of vehicles,

59:24 - which is under Article one, Section eight of the Pennsylvania Constitution.

59:29 - This is Pennsylvania's equivalent to the Fourth Amendment of the US

59:33 - Constitution, and that guards against unreasonable searches and seizures

59:37 - and imposes a warrant requirement unless certain exceptions apply.

59:42 - There have been a number of Pennsylvania Supreme Court cases

59:45 - interpreting when and under what circumstances

59:48 - police may search a car and seize items from that car without a warrant.

59:54 - Under Article one, Section eight, the Pennsylvania Supreme Court

59:58 - 203 has not always followed the US federal rules under the Fourth Amendment.

01:00 - 04.704 Instead, the Pennsylvania

01:00 - 08.475 Supreme Court has previously found that the state protections

01:00 - 13.246 against vehicle searches are stricter than the US Constitution,

01:00 - 16.549 and in particular the Pennsylvania Supreme Court

01:00 - 21.821 has rejected the federal automobile exception to the warrant requirement.

01:00 - 24.391 This was addressed in a 2020 case

01:00 - 29.429 called Commonwealth versus Alexander well, the court held that entry into a car

01:00 - 34.801 by police requires a search warrant unless there are exigent circumstances.

01:00 - 39.773 The question and Saunders is whether Alexander that case prohibits the seizure

01:00 - 45.779 of a gun in plain view, particularly where there are exigent circumstances.

01:00 - 50.183 This implicates a few other situations where police don't need to get a warrant.

01:00 - 53.019 The exigency doctrine that I just mentioned

01:00 - 54.788 means where there's an immediate risk

01:00 - 58.758 of dangerous safety, flight risk or the destruction of evidence.

01:00 - 01.961 Another well-recognised exception to the warrant requirement

01:01 - 05.832 is the plain view doctrine, where police can seize evidence

01:01 - 09.402 or contraband where they're standing, and a lawful vantage point

01:01 - 12.872 where they can tell that the evidence is incriminating right away

01:01 - 17.243 and where they can lawfully access the place, where they take the evidence.

01:01 - 20.680 You'll hear about a case called Commonwealth versus McCree that explains

01:01 - 22.649 the plain view doctrine.

01:01 - 25.585 And Saunders The Commonwealth argues that the plain view doctrine

01:01 - 30.256 includes the protective seizure of weapons in plain view in an automobile.

01:01 - 33.560 Mr. Saunders, however, has argued that none of these rules

01:01 - 37.530 can be applied categorically and instead that the court should have made

01:01 - 41.568 a fact specific determination whether there was enough of a danger

01:01 - 46.106 to seize the weapon immediately rather than waiting to get a warrant.

01:01 - 47.907 Good morning, Your Honor.

01:01 - 48.208 May have.

01:01 - 48.775 Please the court.

01:01 - 50.643 My name is Catherine Monge with the Defenders

01:01 - 53.646 Association representing on my Saunders,

01:01 - 56.516 and I just wanted to remind all of you again before I start.

01:01 - 59.586 If I rely on lip reading, I'm using the hearing assist device.

01:01 - 01.588 So if you could speak into your microphones

01:02 - 04.557 and not cover your mouths when you're speaking, I appreciate

01:02 - 08.495 and I know last time I was a little quiet because I'm coming through really loud.

01:02 - 13.400 Am I loud enough for you to sound perfect? Great.

01:02 - 16.469 This case is about whether probable cause alone

01:02 - 20.607 allows a police officer to enter a car

01:02 - 21.574 in Alexander.

01:02 - 26.346 This court forcefully and clearly stated that the answer to that question is no.

01:02 - 30.183 Obtaining a warrant is the default rule.

01:02 - 32.485 Police need exigent circumstances,

01:02 - 37.357 otherwise the mobility of a car or even the fact that the police officer

01:02 - 42.562 saw the thing that gave rise to probable cause is not an exigent circumstances.

01:02 - 47.434 And this is what Alexander ruled, that these must be treated individually.

01:02 - 50.003 The Commonwealth's position would undermine that ruling,

01:02 - 53.340 and this court should not adopt it.

01:02 - 55.709 The plain view doctrine

01:02 - 00.113 it is often referred to as an exception to the warrant requirement.

01:03 - 06.820 But really the plain view doctrine is a set of facts that must exist in order

01:03 - 11.858 for a police officer to pick up an item when he's already inside of a space.

01:03 - 13.093 So the first requirement is

01:03 - 16.830 that they are in a position where they can legally observe an item that is.

01:03 - 21.868 And then the second item, the second prong is that it be obviously contraband.

01:03 - 26.439 And the third thing is that they also have a lawful right of access to the space,

01:03 - 29.275 and that is because it was envisioned to allow police officers

01:03 - 31.745 to pick up something that was obviously contraband

01:03 - 34.047 when they were already inside of the space.

01:03 - 37.150 Well, he was looking the police officer was looking

01:03 - 40.153 inside, presumably through an open window.

01:03 - 43.690 And he saw the edge of the gun.

01:03 - 47.027 Why isn't that a plain view observation?

01:03 - 53.900 Well, we agree that he was in a legal vantage point when he observed the firearm,

01:03 - 56.102 because in actually in this case,

01:03 - 57.771 what you see is as he looks through

01:03 - 59.706 the front of the window, I mean, it's all on video.

01:03 - 03.610 So you can see how it looks through the front window.

01:04 - 06.179 And what he says is he sees Mr.

01:04 - 10.150 Saunders actually in the act of secreting it out of view

01:04 - 13.019 so he can see it as he's pushing it under the seat. Right.

01:04 - 15.188 So I didn't think he was trying to pull it out.

01:04 - 18.091 I just thought he was pushing it under the seat.

01:04 - 22.028 But so he is the first prong has been that we haven't argued that.

01:04 - 25.265 But basically what has happened

01:04 - 29.469 is the way that plain view has been treated for car

01:04 - 33.973 stops has essentially more or less read a third prong out of it.

01:04 - 40.146 And so we protect privacy in Pennsylvania by protecting spaces.

01:04 - 44.084 And so while he was in a lawful vantage point, when he observed Mr.

01:04 - 47.087 Saunders pushing a gun underneath the seat,

01:04 - 52.292 he then entered the car without any exigent circumstances,

01:04 - 55.495 therefore invading the protected Space Council.

01:04 - 56.529 Is that your position

01:04 - 01.401 now that Alexander has eradicated any exception to the warrant requirement

01:05 - 06.639 that every case now requires probable cause plus exigency

01:05 - 09.809 if the police are doing a search of a car

01:05 - 14.047 entering this space, they must have exigent circumstances.

01:05 - 17.317 Is an unsecured gun in an unsecured vehicle and exigent

01:05 - 20.887 circumstance of public safety for the police officer to act.

01:05 - 23.056 Under some circumstances, it would be.

01:05 - 25.892 In this case, I would argue that it's not. And why not?

01:05 - 31.364 Okay, because my client was under arrest and placed in handcuffs in a police car.

01:05 - 32.499 That's the short answer.

01:05 - 35.502 So what is the ultimate to

01:05 - 36.603 leave the car alone?

01:05 - 38.938 Impound the car.

01:05 - 42.242 Well, it would I would say depend on the circumstances of the case,

01:05 - 46.346 you know, the police, we don't necessarily know how long they were out there.

01:05 - 49.015 We don't know how long it would have taken them to get a warrant.

01:05 - 54.120 Part of the problem is that by reading mobility,

01:05 - 59.259 by tweeting traffic stops as though the police can never get a warrant,

01:05 - 02.696 we're not actually requiring them to establish

01:06 - 04.264 that they couldn't have gotten a warrant.

01:06 - 08.168 Senator, let me take your argument to the logical extreme.

01:06 - 11.104 But you're now saying I, I

01:06 - 12.038 perceiving you

01:06 - 15.241 saying that without the warrant

01:06 - 20.447 and without saying the gun in and of itself is an exigent circumstance,

01:06 - 24.718 that the police officers now can put you in a cop car

01:06 - 27.787 and just automatically impound every car

01:06 - 31.658 of every traffic stop arguing.

01:06 - 34.094 Since they didn't have exigency, they have the right

01:06 - 37.097 to now take the car and impound it for an inventory search.

01:06 - 39.999 Aren't we creating a secondary problem

01:06 - 43.002 as a result of your trying to alleviate this problem?

01:06 - 47.474 Well, in a circumstance where there would be a long period of time to wait

01:06 - 52.178 or I believe you will shortly be addressing the inventory search issue.

01:06 - 56.549 So I know that's that's a slightly different issue

01:06 - 59.686 in the circumstance in which there is a choice

01:06 - 03.556 between waiting a very long time or having all of these other

01:07 - 05.759 possibly bad outcomes.

01:07 - 07.260 One of the options is certainly

01:07 - 11.131 to ask the individual for consent to search the car.

01:07 - 15.268 It doesn't mean that any time a probable cause arises,

01:07 - 20.173 they impound the car, it means the warrant is the preferred exception.

01:07 - 21.841 Now, there might be circumstances

01:07 - 24.944 in which impounding the car is the only possibility.

01:07 - 28.548 There might be circumstances in which they can make a quick phone call

01:07 - 32.852 because they are allowed to get warrants that way and they can obtain the warrant.

01:07 - 34.788 They could wait with the car, they can secure the car.

01:07 - 36.856 There are certainly a lot of possibilities.

01:07 - 38.458 Counsel Okay, clarity on that.

01:07 - 40.493 I mean, it's

01:07 - 42.996 I'm not sure that I think I'm a little nervous

01:07 - 44.998 about going down this test of possibilities.

01:07 - 50.804 Could the is a search unreasonable because the police could have done X, Y and Z?

01:07 - 53.373 I don't think is really

01:07 - 55.642 that I don't think that's the constitutional test.

01:07 - 57.777 We don't sit here and decide

01:07 - 00.447 after the fact all of the things that the police officers

01:08 - 03.316 in the middle of the moment could have done.

01:08 - 06.586 I mean, you could always get a warrant, you could always stop something

01:08 - 09.923 and secure a facility and get a warrant.

01:08 - 13.626 This is I'm struggling with the search aspect of this.

01:08 - 18.164 You know, and Alexander Alexander was a true search circumstance.

01:08 - 23.203 Police officer didn't see contraband in plain view, you know, or smelled

01:08 - 29.209 marijuana, did a four vehicle search looking for contraband.

01:08 - 30.610 These facts are different.

01:08 - 35.715 The police officer, the door was open to the vehicle after the arrest.

01:08 - 39.185 The the gun was identified in plain view.

01:08 - 41.988 It's still in plain view with the door open.

01:08 - 47.794 The the suspect admitted that the gun was illegally possessed

01:08 - 50.864 and the police officer under those circumstances

01:08 - 55.668 reached in to the vehicle and retrieved the gun.

01:08 - 00.974 Did not do a search for marijuana or other contraband or searched

01:09 - 04.978 the vehicle for other guns or anything like that was a limited intrusion.

01:09 - 06.446 That's space to recover.

01:09 - 10.116 A piece of contraband in plain view.

01:09 - 12.719 Are you telling me that under those circumstances

01:09 - 17.223 your client had a reasonable expectation of privacy, that society deems

01:09 - 21.795 to be objectively reasonable and protected under the Constitution

01:09 - 24.531 in a car, individuals

01:09 - 28.034 have a reasonable expectation of privacy under the Pennsylvania Constitution.

01:09 - 32.072 I'm generally speaking, I'm asking you under these circumstances,

01:09 - 36.443 these particular circumstances, did your client have reasonable

01:09 - 41.014 expectation of privacy that society deems is reasonable, i.e.

01:09 - 44.351 it was unreasonable for the police officer simply to reach

01:09 - 48.455 in an open car door and take the gun? Yes.

01:09 - 51.958 And the reason for that is because, again, it goes back to the idea

01:09 - 55.562 of spaces and the threshold where that is where we draw the line.

01:09 - 02.235 If you were talking about a house, for example, you could have

01:10 - 02.869 a bag

01:10 - 05.872 of dogs sitting next to a gun in a windowsill.

01:10 - 08.108 The big sign that says for sale.

01:10 - 11.578 And that would not that would be the smallest amount of probable cause

01:10 - 16.282 that we could have, but it would not justify entering the space.

01:10 - 17.817 And so

01:10 - 22.589 in cars, it is a little we treat we interact with cars differently.

01:10 - 28.361 And so the way that you tell me, tell me how tell me, tell me how.

01:10 - 30.463 You have to change your facts a little bit. Right?

01:10 - 33.933 I'd have to be walking down a public sidewalk

01:10 - 37.537 and there's no property owned between the window

01:10 - 41.107 and the public right away where the police officer could stand.

01:10 - 44.210 And there is a bazooka,

01:10 - 48.748 an operation or bazooka in the window that I can just go up and grab.

01:10 - 51.284 So I am standing in on public space.

01:10 - 53.920 I'm not invading your curtilage or curtilage at all.

01:10 - 58.058 And your in your hypothetical, I'm standing where I'm allowed to stand.

01:10 - 02.028 There is a dangerous weapon in a window.

01:11 - 05.098 And you're saying, hold the phone.

01:11 - 10.470 Society deems it as a reasonable for me, as a police officer, protect the public

01:11 - 15.208 to to seize that unreasonable weapon.

01:11 - 16.743 I need to get a warrant.

01:11 - 20.480 You're saying that that is an unreasonable seizure,

01:11 - 24.217 that society would protect

01:11 - 26.086 if. Well,

01:11 - 29.956 one of the difference is you're adding in a few facts

01:11 - 34.928 which start to lead to the development of exigencies and so

01:11 - 38.531 I'm not saying in that situation that exigent circumstances would exist,

01:11 - 42.369 but if you had a circumstance in which there was an imminent danger

01:11 - 47.107 that was established by the facts that would justify entering the space,

01:11 - 51.244 our argument is that they must be required to develop

01:11 - 55.715 the explanation of what those exigencies are before they enter the space.

01:11 - 58.618 Did this police officer crawl around in the vehicle?

01:11 - 59.853 No, he did.

01:11 - 02.922 As he reached into the vehicle, he was so where the football officer was

01:12 - 04.557 standing was hot.

01:12 - 09.996 Your your client didn't have an expectation of privacy in the in the concrete,

01:12 - 11.131 on the sidewalk,

01:12 - 13.800 wherever the officer was standing, when he when he reached out,

01:12 - 14.768 got where he was standing.

01:12 - 18.271 So he was lawfully standing next to the car.

01:12 - 18.772 That's right.

01:12 - 21.875 We haven't challenged the fact that he was in a lawful place when he initially.

01:12 - 27.147 So the unlawful pace was the hand reach and to retrieve purely the gun.

01:12 - 29.816 You know, the commonwealth was really focused a lot

01:12 - 33.219 on the minimal ness of the minimal minimal

01:12 - 36.089 the minimal intrusion in this case.

01:12 - 39.726 But the fact of the matter is the Plain Dealer doctrine doesn't only address

01:12 - 42.562 this sort of minimal intrusion.

01:12 - 44.731 The plain view doctrine addresses

01:12 - 49.035 the officers access to the protected space period.

01:12 - 50.670 You know, there are lots of circumstances

01:12 - 54.607 we could imagine where something is, is seen by a police officer,

01:12 - 58.778 and then he has to reach his entire body into the car in order to retrieve it.

01:12 - 01.915 And upon doing that, use all sorts of things

01:13 - 05.685 that either invade the privacy or discover

01:13 - 08.688 additional contraband that would then be in plain view.

01:13 - 14.828 And I think in fact, in McCree, for example this court,

01:13 - 15.562 I'm sorry, the

01:13 - 19.232 officer went to arrest someone

01:13 - 23.670 and as he is doing that, he sees him put a pill underneath a seat,

01:13 - 27.841 no longer in plain view inside the car, but because it was observed in plain view,

01:13 - 30.877 in that case it was still treated as being in plain view,

01:13 - 34.180 even though this was a circumstance in which the individual

01:13 - 37.317 was actually putting something out of plain view.

01:13 - 42.022 And in this case, also, you know, the area underneath states

01:13 - 45.091 generally, something out of the public view

01:13 - 47.460 is this is a situation which Mr.

01:13 - 49.963 Saunders was by the police officer's description,

01:13 - 52.499 actually pushing it out of the plane.

01:13 - 57.103 And so what it does is it allows intrusion, period, and we draw the line

01:13 - 03.076 at thresholds because drawing the line at the number of inches the intruded on

01:14 - 06.179 just how far in they went is a

01:14 - 09.849 I have a hard time seeing how that rule would even work.

01:14 - 14.254 But drawing the line at, the threshold is drawing the line at a protected space.

01:14 - 19.526 And when you enter the protected space, it becomes an invasion of privacy.

01:14 - 22.062 And maybe there were other things under that.

01:14 - 22.529 See this?

01:14 - 24.664 The fact that it was his hand and not his head

01:14 - 28.768 doesn't mean that he couldn't have encountered all sorts of things that Mr.

01:14 - 33.340 Saunders were legitimately protected as private.

01:14 - 34.941 I believe

01:14 - 40.947 that under the seat excuse me,

01:14 - 41.781 the area under

01:14 - 47.253 the seat is actually one of the private out of public view areas

01:14 - 51.624 that is listed in Justice Todd's dissenting jury,

01:14 - 55.695 including the far right under the seat in the in the trunk,

01:14 - 00.400 in the different closed compartments and right now we have well,

01:15 - 03.937 it's the area that is in plain view is really close to the door.

01:15 - 05.205 Do we have a different rule?

01:15 - 08.708 And that's why I'm drawing the line at the threshold.

01:15 - 11.144 Is in our argument the right way to go rather

01:15 - 14.180 than trying to figure out how far into the car the police can go.

01:15 - 18.118 Yeah, Counsel, I get a little bit uncomfortable

01:15 - 22.088 when we start to try to pigeonhole this

01:15 - 25.859 because it's a plain view case.

01:15 - 27.160 The object in

01:15 - 30.830 plain view gives you probable cause.

01:15 - 33.400 Period. Period.

01:15 - 36.736 The fourth factor requires

01:15 - 41.408 the establishment of the lawful right of access,

01:15 - 46.846 and the lawful right of access requires

01:15 - 50.684 to comport with the limited automobile

01:15 - 54.587 exception in this Commonwealth, whatever that may be.

01:15 - 57.924 The this issue of trying

01:15 - 00.994 to dissect this because it's a plain view case,

01:16 - 05.365 I think loses sight of the fact that all we're really focused on here

01:16 - 07.367 because of your concession on the plain view,

01:16 - 11.137 which I don't understand at all, but that just a different issue.

01:16 - 13.073 We have probable cause.

01:16 - 16.042 What we're focused on is the fourth prong

01:16 - 18.978 loss of right of access.

01:16 - 24.084 What do you need to search an automobile in the Commonwealth of Pennsylvania?

01:16 - 29.456 Your argument is you need you have the probable cause, you need an exigency.

01:16 - 32.559 Am I correct? That's absolutely it.

01:16 - 35.995 And the necessary the

01:16 - 40.800 requirement for fact specific exigent circumstances has been essentially read

01:16 - 44.771 out of the rule by the superior Court in the way that they treat traffic stops.

01:16 - 50.443 And it's the only sort of and you're right plain view really just describes

01:16 - 54.547 that probable cause developed because the officer saw it

01:16 - 58.018 if if when he was questioning my client Mr.

01:16 - 01.654 Saunders had said there's a gun in the seat, I don't have a permit,

01:17 - 03.757 we wouldn't be talking about plane do you at all.

01:17 - 05.692 you have furtive movement, same thing.

01:17 - 10.497 I mean there are other that probable cause can developed in a plain view case.

01:17 - 12.599 It's because it's in plain view.

01:17 - 16.236 Because because probable cause arose based on what he saw

01:17 - 20.674 rather than something he heard or was told or a whole other host of factors.

01:17 - 24.411 And so our argument is the fact that probable cause developed

01:17 - 28.915 based on the officer viewing item doesn't change

01:17 - 33.019 the larger requirement for entering the protected space of an automobile.

01:17 - 36.623 How about that protected space of a home?

01:17 - 39.059 Let's say that

01:17 - 41.428 a firearm

01:17 - 44.931 is viewed through an open window in a house

01:17 - 49.803 and the firearm is, you know, just beyond the window.

01:17 - 53.807 So nobody in the neighborhood take out take out exigencies

01:17 - 56.810 of, you know, kids could grab it all those kinds of things.

01:17 - 01.581 I say it's an abandoned house, but we know who owns it.

01:18 - 04.617 Can they can they can to please just reach

01:18 - 07.587 in the window in that house and grab the gun?

01:18 - 10.623 Now, why is it any different for a car?

01:18 - 13.860 Well, I would argue that it is not

01:18 - 17.731 the way that exigent the only real difference between cars

01:18 - 21.401 and homes under the requirement for probable cause

01:18 - 24.838 and exigent circumstances is the ways in which exigencies arise.

01:18 - 27.874 So let me follow up just to start to use concern.

01:18 - 30.877 The question is outside the house with this vehicle.

01:18 - 34.647 The question before this court is, does this court holding an Alexander

01:18 - 38.585 require, quote unquote, a fact specific assessment to determine

01:18 - 43.890 whether exigency exists to provide the officer with access to the interior?

01:18 - 47.227 The court Legal access under the plain view doctrine,

01:18 - 50.397 it's easy to distinguish someone's home with a locked door,

01:18 - 53.933 maybe an open window, as opposed to the facts of this case.

01:18 - 59.439 A being on a public street unattended with a visible firearm present.

01:18 - 03.476 The question I have is, if we grant this question.

01:19 - 05.679 Yes are we not?

01:19 - 08.982 If we say yes, there has there is a requirement of fact

01:19 - 13.386 specific requirement to determine exigency,

01:19 - 18.291 can review the facts to say an undetermined car

01:19 - 21.928 on a public street in is this North Philadelphia

01:19 - 25.598 I believe which populous area was that the next case?

01:19 - 27.867 I don't remember that may either.

01:19 - 31.071 But either way, Philadelphia is a populated city

01:19 - 33.506 with a visible firearm

01:19 - 37.577 because that fact specifically create an exigent circumstance.

01:19 - 40.647 We're no longer talking about the right of privacy.

01:19 - 44.718 We're talking about the question that's limited to this court.

01:19 - 46.619 In this particular case,

01:19 - 51.458 I would argue that the Commonwealth would need to do more to develop exigency

01:19 - 55.228 because, you know, exigency is

01:19 - 59.132 compelling need for official action and no time to secure a warrant.

01:19 - 02.769 And the fact of the matter is, there's just no reason to believe

01:20 - 05.638 the officers couldn't have gotten a warrant.

01:20 - 06.406 But that's

01:20 - 09.909 but again, I'm not sure that they always can get a warrant.

01:20 - 13.480 That's that's they can always get it with their probable cause.

01:20 - 14.647 They can always get a warrant.

01:20 - 20.020 That doesn't the test of exigency is not is it impossible to get a warrant.

01:20 - 21.554 So it's always possible to get a warrant.

01:20 - 25.992 The test of exigency has to be something other than they can get a warrant.

01:20 - 30.463 So let's say in a so the kinds of exigencies

01:20 - 35.735 that arise might be there's a person who's getting back into the car, right?

01:20 - 40.006 So that would mean that person would then have access to the firearm or say

01:20 - 43.743 the police are called away and cannot stay with the car.

01:20 - 45.178 That might be an exigency.

01:20 - 52.552 But the fact of the matter is we have a warrant requirement so that the

01:20 - 53.353 police officers

01:20 - 58.658 who are part of the executive branch don't just if probable cause was always,

01:20 - 58.992 you know, the

01:20 - 02.829 officer's judgment was always good enough, we wouldn't have a warrant requirement,

01:21 - 04.330 but we do.

01:21 - 07.200 And the warrant requirement

01:21 - 08.902 states that unless

01:21 - 11.905 there's some reason why the police officer can't do it

01:21 - 15.508 can't stay with the car, can't for whatever reason,

01:21 - 17.644 there is an actual danger that they've established

01:21 - 22.582 on the record in that situation and they need to act soon.

01:21 - 26.319 Then they need to go get a warrant and have it reviewed by the judicial branch.

01:21 - 29.122 And so we're just saying

01:21 - 32.892 we can we can always game it out after the fact when he did find something.

01:21 - 33.426 Right.

01:21 - 35.895 And so all of the cases that come to this court are cases

01:21 - 38.898 where they do find something and we say, well, the police were right.

01:21 - 41.267 But you think about all the cases.

01:21 - 45.705 In fact, I think I stated in my reply brief,

01:21 - 46.706 the state police in

01:21 - 51.077 2022 had a 53.6% hit rate searching cars.

01:21 - 55.048 You know, So I think it's a it's a good idea and they're getting warrants,

01:21 - 58.618 what, some 70 something percent of the time in at least that year.

01:21 - 02.889 You don't see a distinction me getting to this case.

01:22 - 07.927 You don't see that the plain view doctrine is a doctrine

01:22 - 13.099 that allows seizure of something, not not just a search.

01:22 - 18.838 You don't differentiate between a search of an automobile

01:22 - 23.109 without plain view you.

01:22 - 26.413 In other words, you think this is just the same thing as Alexander

01:22 - 29.916 and Alexander, though they didn't see any contraband.

01:22 - 34.020 And then Alexander says, you in the absence of something else

01:22 - 37.290 and just smelling marijuana, you cannot search an entire vehicle

01:22 - 38.458 looking for contraband.

01:22 - 42.195 You think that of a four vehicle search,

01:22 - 45.298 No plain view is applicable

01:22 - 50.103 to an absolute a plain view of what is identified

01:22 - 54.174 and confirmed by the person as contraband

01:22 - 57.077 and going in and getting that contraband.

01:22 - 00.847 You think that's the equivalent of Alexander

01:23 - 01.715 the Plain Dealer

01:23 - 05.518 doctrine presumes the police are already inside the protected space.

01:23 - 10.056 And and there are a whole host of different types of searches

01:23 - 12.892 that are more or less invasive.

01:23 - 15.829 You know, we're not drawing the line based on whether the police are slashing

01:23 - 17.597 the seats and cutting up.

01:23 - 18.264 You know what I mean?

01:23 - 21.468 Like There are all sorts of just because they go into the trunk,

01:23 - 22.535 that's out of bounds.

01:23 - 25.138 All of the different spaces within the car, out of bounds.

01:23 - 26.039 We draw the line

01:23 - 29.876 at the threshold for a reason because it's the space that is protected.

01:23 - 32.879 And so the reason that the plain view doctrine is generally

01:23 - 36.549 treated as addressing possession or interest in that privacy

01:23 - 39.552 interest is because it presumes they're already inside.

01:23 - 43.623 And so when you take that out of it, it does implicate privacy interest

01:23 - 46.926 because it allows the police to enter the protected space.

01:23 - 48.928 And I think that's what the real difference is.

01:23 - 52.399 It is no longer just addressing possession or interest, but it addresses

01:23 - 55.568 privacy interest because the police are going into the protected space.

01:23 - 57.670 And you believe that just that.

01:23 - 01.608 And you believe that an open car, a car

01:24 - 06.379 that you have your doors open, windows down on the street

01:24 - 08.882 and you have contraband

01:24 - 14.154 in plain view as a police officers walking by is still a threshold area

01:24 - 19.592 that objective Pennsylvanians would should be protected.

01:24 - 21.394 Well,

01:24 - 24.397 part of the problem is this car is open on the side of the street,

01:24 - 27.267 you know, because the police car to change the situation.

01:24 - 27.701 So, Mr.

01:24 - 31.738 Saunders, driving down the street while I'm talking to my hypothetical first.

01:24 - 32.672 I'm sorry. I'm sorry.

01:24 - 35.008 I thought you were talking about this case with the doors open.

01:24 - 37.077 No, I'm sorry. Well, I'm. I'm moving there.

01:24 - 38.845 I'm just trying to understand what your limits are.

01:24 - 39.512 If I. If I.

01:24 - 44.951 If I only if I park my car on Broad Street and I open up all the doors

01:24 - 47.987 and I walk away, and on

01:24 - 51.658 one on the seat is a gun.

01:24 - 54.961 Do the police need a warrant

01:24 - 57.197 to seize that gun

01:24 - 01.568 because they're crossing the threshold into the vehicle?

01:25 - 03.837 I mean, if we're talking about I can think of

01:25 - 07.674 some exigencies in that scenario, but is that I'm not going to exigency.

01:25 - 09.676 I'm going to a basic Fourth Amendment privacy.

01:25 - 12.879 Well, I'm getting really down low on privacy.

01:25 - 15.482 Is that have I exhibit

01:25 - 19.519 a subjective expectation of privacy that society is willing to protect?

01:25 - 20.487 Is reasonable?

01:25 - 23.823 Not under the Fourth Amendment and under Article one in section eight

01:25 - 26.493 with because it is a car.

01:25 - 29.562 But I mean, somebody who leaves all of the doors and windows

01:25 - 32.632 open and away, leaving an unattended car is certainly treating

01:25 - 35.602 their car differently than someone in a traffic stop.

01:25 - 38.438 And so I think that's

01:25 - 40.740 I think that's sort of part of the difference.

01:25 - 42.509 And the other thing is

01:25 - 46.212 it is the development of exigencies that give the officers the right to go in.

01:25 - 47.047 And so,

01:25 - 50.483 as you know, the Commonwealth raises a whole parade of horribles and situations

01:25 - 55.021 where the police cannot get warrants or wouldn't be allowed to go into a car.

01:25 - 57.257 But a lot of the stuff is exigency.

01:25 - 00.694 So you leave something dangerous in a wide open car that is out

01:26 - 04.531 in the street, you know, in children running by loaded gun.

01:26 - 07.701 Then you start to see it starts to look more like exigent circumstances.

01:26 - 11.304 And I think what we're saying is, rather than presuming

01:26 - 14.908 that exigency exists simply because the car is mobile

01:26 - 18.078 and we need to look at the actual facts of each case and determine

01:26 - 19.479 whether there are exigencies.

01:26 - 22.582 And so when it starts to become what about these facts?

01:26 - 23.550 What about these facts?

01:26 - 26.886 But this is clearly exigency and this is like this.

01:26 - 28.421 It really is individual.

01:26 - 31.424 And I think that's part of what Alexander stands for, which is

01:26 - 35.128 we can't give one definition of exigency, but for car stops

01:26 - 41.000 only for situations where probable cause develops of the officer viewing something.

01:26 - 44.571 Suddenly the superior Court has read in this motion that

01:26 - 47.841 because it arose suddenly and because the car is mobile,

01:26 - 51.478 that is a person exigency, when that's just not always the case.

01:26 - 55.148 So I think we get it as much as any other questions.

01:26 - 58.418 Let's hear from the happily.

01:26 - 00.387 Very well, Aki.

01:27 - 10.397 Thank you.

01:27 - 11.731 May it please the court.

01:27 - 16.903 Mike Erlich for the Commonwealth in Commonwealth versus Alexander,

01:27 - 21.041 this Court overruled Gary and rejected

01:27 - 24.744 the very broad all purpose federal exception

01:27 - 28.515 to the warrant requirement, according to which as long as the police

01:27 - 30.016 probable cause,

01:27 - 32.819 even if they could have gotten a warrant long in advance,

01:27 - 34.020 even as they were searching

01:27 - 38.124 the trunk of a car or a glove box or private luggage, what's on the car?

01:27 - 39.492 Everything was okay.

01:27 - 40.894 Probable cause was the ends up

01:27 - 44.964 in court of the inquiry for all searches of all kinds of vehicles.

01:27 - 48.702 In Alexander. The court simply had no

01:27 - 51.604 to address the particular issue we have here,

01:27 - 55.075 which is a situation where during a lawful traffic stop,

01:27 - 59.879 an officer observes contraband in the vehicle in plain view,

01:27 - 05.418 my learned colleague asked this court to expand Alexander to establish a rule

01:28 - 08.922 that evidence must be suppressed in these circumstances

01:28 - 12.659 unless the prosecution proves at the suppression hearing

01:28 - 16.463 that obtaining a warrant would not have been possible.

01:28 - 20.967 I'd like to highlight four reasons why I think that would be a mistake.

01:28 - 24.270 The first is I think that that is contrary to key

01:28 - 27.273 aspects of the reasoning about Alexander itself,

01:28 - 32.312 which incorporated the dissenting opinion in Commonwealth versus Gary.

01:28 - 35.582 And that opinion emphasize the distinction

01:28 - 39.786 between necessary, arguably reasonable expectation of privacy

01:28 - 44.124 in all areas of the automobile shielded from public view.

01:28 - 48.595 And what they referred to was items left to uncover on the dashboard

01:28 - 51.598 or seats that are no longer private in the same way.

01:28 - 54.234 And I think this is an absolutely key distinction.

01:28 - 56.369 And we're talking where we talk about

01:28 - 00.106 what is required for a lawful right of access.

01:29 - 03.209 It is important to view that not simply in the abstract,

01:29 - 06.179 but with reference to what the police are doing

01:29 - 10.116 and what areas of a car are being invaded.

01:29 - 11.251 And my second point,

01:29 - 15.622 which is related to that, is that if we look at other jurisdictions

01:29 - 20.860 that like Pennsylvania, say our citizens have greater

01:29 - 26.332 rights under their own state charters, we will not accept the federal all purpose

01:29 - 30.236 automobile exception over and over again the way the authority is.

01:29 - 34.607 They say these cases are different in these cases where the police see

01:29 - 39.179 contraband in plain view in the car and they reach in and take it, that's fine.

01:29 - 42.182 That is not a violation of our state constitution,

01:29 - 46.986 even though the federal automobile exception goes way too far.

01:29 - 49.422 Another that I think is important is

01:29 - 52.926 if you look at Alexander, what Alexander did

01:29 - 57.430 was return the law of Pennsylvania to what was prior to Gary.

01:29 - 01.000 And if we look at that, the leading authority is.

01:30 - 02.669 It's a plurality opinion.

01:30 - 06.606 But as both of us agree, you have to look at the facts

01:30 - 09.609 accepted by majority of the court and they are binding.

01:30 - 14.014 And then McCrae, the court said that if you have plain view,

01:30 - 17.484 you can go and access it and reach him and that is not

01:30 - 20.553 not a violation of Article one, Section eight.

01:30 - 22.455 So I apologize. Come on.

01:30 - 28.395 Surely Plainville in itself is per say, exigent circumstance?

01:30 - 29.996 No, we're not saying that.

01:30 - 32.032 The position that we've taken

01:30 - 36.369 is that and I think the court could take a narrower position of position west

01:30 - 39.873 or position is it's a rule of thumb that first the Commonwealth from

01:30 - 44.277 all these cases has to establish that this was suddenly arising probable cause.

01:30 - 46.646 The police did not know in advance.

01:30 - 49.449 And of course, they have to show that the police saw the contraband

01:30 - 52.786 from a lawful vantage point and that was contraband.

01:30 - 56.723 And that situation, we think generally if the police go

01:30 - 01.127 and readily access it, it normally does not require and the warrant.

01:31 - 02.962 But there are some exceptions.

01:31 - 04.230 If you have a situation,

01:31 - 08.101 as I've said in my briefs, that involves police smashing the car,

01:31 - 12.539 damaging the car, breaking the windshield, get then that gives us pause.

01:31 - 17.844 That's the situation for for that kind of additional violation of possess rewrites.

01:31 - 20.146 A warrant perhaps should be required

01:31 - 23.249 if you have a situation also where it's a mobile home

01:31 - 28.388 or it's a car that is parked in, the curtilage of a private residence,

01:31 - 31.758 that's another situation where even if there's a plain view,

01:31 - 35.729 we may this court may well wish to and that may well be a good idea.

01:31 - 37.197 Require a warrant.

01:31 - 41.234 Our position is, as a rule of thumb, however, under the circumstances

01:31 - 44.437 I've outlined, a warrant should not be required.

01:31 - 45.338 Follow up on that.

01:31 - 48.508 Surely response to Justice Daugherty, Counsel,

01:31 - 49.275 Because I think your

01:31 - 52.278 response is clear and consistent with your brief.

01:31 - 56.149 It seems to get close to the Attorney General's

01:31 - 59.219 proposal of a per se exigency

01:31 - 04.724 insofar as 98 or 99% of

01:32 - 06.926 these

01:32 - 11.464 are going to are going to essentially defeat Alexander.

01:32 - 14.667 Right, because the overwhelming majority

01:32 - 18.872 of these circumstances are going to be like this.

01:32 - 23.777 Saunders Stop and not like the mobile harm mobile home parked in the long

01:32 - 27.547 term parking at the airport or, you know, your curtilage case.

01:32 - 32.152 So essentially if we go down on the avenue

01:32 - 34.888 that you're proposing,

01:32 - 39.592 wouldn't wouldn't it essentially swallow

01:32 - 42.762 the rule that we articulated in Alexander

01:32 - 45.765 because essentially

01:32 - 48.868 it would be a per se exigency.

01:32 - 51.838 And the companion question is

01:32 - 55.308 why isn't the better differentiation,

01:32 - 00.213 the differentiation between what we had here

01:33 - 03.850 and the ticking time bomb scenario,

01:33 - 06.186 which is a per se exigency?

01:33 - 09.889 Well, if you have the ticking time bomb scenario, that's going to be point

01:33 - 12.625 1% of cases that's never comes up.

01:33 - 15.729 And in terms of swallowing the rule of Alexander,

01:33 - 19.532 in the vast majority of car stops, you're having said, you know,

01:33 - 23.470 prior to Alexander, you had situations that were not plain view.

01:33 - 27.807 There's nothing that we are proposing that would allow the police ever, based

01:33 - 31.745 on probable cause, to go into a trunk, to go into a glove box,

01:33 - 36.449 to open a suitcase, do all those things which are particularly troubling.

01:33 - 42.022 And so I think that, yes, in most of these cases, our position is the plain view

01:33 - 45.525 really should provide a right of access.

01:33 - 49.863 But if there's ever a case, then where it should that's narrower.

01:33 - 53.633 It's this one where you have a car and the area known

01:33 - 56.836 for shootings, the door is open through no fault of the police.

01:33 - 58.104 It's through the form of Mr.

01:33 - 00.440 Saunders, who attempted to hide this gun.

01:34 - 03.843 You have, you know, his living around the corner.

01:34 - 05.645 We don't know when they'll be coming up.

01:34 - 07.347 We have a situation where it's

01:34 - 11.084 simply reaching through the open door interest seconds.

01:34 - 15.321 I think you would be hard pressed to find any police officer

01:34 - 19.292 confronted with that situation who's going in the field to be conducting

01:34 - 23.463 some sort of nuanced analysis of I how many other police officers

01:34 - 25.565 are available on call right now? Well, wait a minute.

01:34 - 27.701 You magistrates follow up.

01:34 - 31.171 Now, you've varied the facts because I've watched this video,

01:34 - 36.309 I've watched the in body cam and the Washington body cam a couple of times.

01:34 - 37.977 Saunders is removed

01:34 - 41.715 from the car, he's handcuffed, he's put in the squad car.

01:34 - 42.949 Washington's in the car.

01:34 - 44.951 Ibbotson is at the car.

01:34 - 46.052 So what?

01:34 - 49.055 I mean, gun's not going to shoot itself.

01:34 - 52.258 And so what

01:34 - 56.196 what is the relationship between what happened in this case

01:34 - 00.333 and the scenario you're talking about, where there's some I guess some

01:35 - 04.738 crowd grabbing of the gun or I'm not sure what exigency you're trying to pick.

01:35 - 08.575 I'm what I'm trying to describe is this case itself.

01:35 - 10.410 I don't think in this case

01:35 - 14.347 any well-trained police officer really is going to be conducting some sort

01:35 - 18.518 of sophisticated, nuanced analysis where they're trying to weigh

01:35 - 22.355 how long would it take to get a warrant, how other police officers

01:35 - 25.692 or other calls, how many magistrates are available tonight?

01:35 - 27.327 That's true in every stop.

01:35 - 30.997 I mean, you're retreading ground

01:35 - 34.501 that we spent a lot of time in Alexander going over.

01:35 - 37.137 I mean, that's that's the argument in every case.

01:35 - 39.773 You know, things should be easier for law enforcement

01:35 - 41.708 because they shouldn't have to think about this.

01:35 - 43.877 So that's not what Article one, Section eight, does.

01:35 - 47.747 But here's my I'm going to reiterate my concern

01:35 - 52.018 that I discussed with your opposing counsel

01:35 - 56.489 what you are suggesting has never been the law in Pennsylvania,

01:35 - 01.995 that somehow there is a different

01:36 - 03.930 mode or test

01:36 - 07.801 in a plain view case for

01:36 - 12.205 what is otherwise allowed in an automobile search.

01:36 - 18.878 The fourth prong of the claim view test

01:36 - 23.049 has us to look to a lawful right of access

01:36 - 27.821 that equates with what is necessary

01:36 - 31.791 for an automobile search in Pennsylvania,

01:36 - 35.695 which asker Alexander is probable cause

01:36 - 38.698 which you otherwise have and an exigency.

01:36 - 42.469 So this notion that we should develop

01:36 - 49.976 some different level of analysis for a

01:36 - 54.614 an object scene in plain view in an automobile

01:36 - 58.451 other than what we have in usual automobile searches.

01:36 - 01.388 That's just never been with the life span in Pennsylvania.

01:37 - 04.791 I think that's exactly the question before this court.

01:37 - 07.894 Maybe it is, but I'm just saying you're arguing is

01:37 - 10.663 this is this is what the law has always been.

01:37 - 13.867 That is just not true in McCree.

01:37 - 20.407 McCree is interesting because it was a plurality decision.

01:37 - 21.341 They never

01:37 - 24.210 I mean, they they sort of dispensed with the fact

01:37 - 27.814 that the object in the vehicle was in plain view or not.

01:37 - 33.319 I mean, that case focused on what a quote unquote limited

01:37 - 39.225 automobile exception was in Pennsylvania for purposes of fulfilling the fourth.

01:37 - 42.095 I mean, it was long after the fact.

01:37 - 45.098 And I wrote the decision in Brown

01:37 - 47.967 where in order to look for

01:37 - 53.139 some potential majority holding in that case,

01:37 - 57.977 we needed to focus on the narrowest thing that could be said.

01:37 - 00.880 And it was in that case, in a plain view case.

01:38 - 04.684 This is what the whole holding whites I mean McCree

01:38 - 08.288 essentially decided McCree

01:38 - 11.558 the analysis in that in that case had nothing to do

01:38 - 14.561 with developing some new fangled

01:38 - 17.630 view of the plain view exception.

01:38 - 19.265 Pennsylvania.

01:38 - 21.801 Well, I guess there's two ways of a spout response.

01:38 - 24.804 Specifically, I respectfully disagree,

01:38 - 29.676 and I think that your own driver's own holding and Brown really construed

01:38 - 33.680 McCrae as a specific ruling that had to do with plain view.

01:38 - 37.784 Now, that was the only that was the only point

01:38 - 39.452 that could be drawn out of that case.

01:38 - 44.891 We specifically said in Brown, it is clear that the court could not agree

01:38 - 49.262 on the parameters of the limited automobile exception

01:38 - 52.665 in Pennsylvania, which is what they were trying to do

01:38 - 55.769 in order to determine what the lawful right of access

01:38 - 59.506 was, whether or that's the only point that could be drawn out of McCree.

01:38 - 02.809 The fact remains that that was the holding of McCree

01:39 - 06.446 as construed by Your Honor and the Superior Court ever since.

01:39 - 09.149 I think, however, that there is a broader point here,

01:39 - 13.186 and that is that if you look at what my learned, this colleague is suggesting

01:39 - 18.058 that there are some sort of per se rule that you need proof that the suppression

01:39 - 21.027 hearing that the police could not possibly have got the warrant.

01:39 - 26.166 Well, that was rejected not only McCree, but in a whole series of cases

01:39 - 30.403 construing the Pennsylvania Constitution by this court in cases like law,

01:39 - 34.107 in cases like Baker and Rodrigues, that was never the law of Pennsylvania.

01:39 - 37.477 The other point that like to make is something what was what was never

01:39 - 41.114 the law of Pennsylvania, that the only way that you can establish

01:39 - 45.785 a proper warrantless search is if you prove that the police could

01:39 - 49.723 possibly have gotten the warrant had they guard that the car and go on

01:39 - 51.624 through some sort of a process

01:39 - 54.928 to go and get the warrant while somebody is watching over the car.

01:39 - 57.397 Are you saying that that after that,

01:39 - 00.266 even after we decided, Alexander,

01:40 - 04.537 that we are supposed to presume in a case like this

01:40 - 08.041 where the guy is out of the car, handcuffed and in the back of the police

01:40 - 11.811 vehicle, the fact that his car remains mobile

01:40 - 14.881 and that we don't have time to get a warrant for that car,

01:40 - 18.051 is that the proposition even after Alexander or not?

01:40 - 18.585 That's not so.

01:40 - 19.786 The court remains mobile.

01:40 - 21.654 But actually, in this case,

01:40 - 25.658 there was an actual finding of exigent circumstances by the trial court

01:40 - 29.996 in which he said he reasonable believe that the officer's safety was some danger

01:40 - 32.766 and there was a compelling need to recover the firearm

01:40 - 36.136 while witness significant time could have taken together a warrant.

01:40 - 38.371 So there actually was a finding here.

01:40 - 43.009 And then terms generally of this analysis of what needs to be presented

01:40 - 46.513 at the suppression hearing, I think we have to have a realistic view

01:40 - 50.450 of what getting a warrant under these circumstances really involves.

01:40 - 53.119 It's a three part process.

01:40 - 56.156 First, you have to go and have somebody in addition

01:40 - 59.459 to keeping an eye on the weapon, somebody keeping an eye on defendant,

01:40 - 04.597 you have to have somebody drafting the warrant affidavit and that's something

01:41 - 08.201 that most police officers on the street aren't an expert on.

01:41 - 11.538 They often need to go and track down into a commonwealth.

01:41 - 14.374 Like the way I see this is

01:41 - 18.478 Alexander put an end to Gary, kind of resurrect it.

01:41 - 24.584 McRae Before us today is an expansion or the creation of,

01:41 - 27.620 a new requirement, and that would be

01:41 - 32.659 if we're arguing in a plain view since Alexander,

01:41 - 37.297 if it's a plain view exception, we need probable cause and exigency.

01:41 - 40.266 We're now conceding or both of you

01:41 - 43.436 appear to concede that that's facts specific assessed.

01:41 - 48.008 It has to be determined whether exigency exists.

01:41 - 50.577 The question I have is, in this particular case,

01:41 - 54.481 the officer indicated that he had fear it was north.

01:41 - 57.784 The way I looked at the 2400 block of North Indiana Street,

01:41 - 01.421 which is a very populated little street.

01:42 - 04.457 If this fact scenario indicated

01:42 - 10.530 that it was, say, maybe a joint or a Nickelback,

01:42 - 11.998 is it your position

01:42 - 15.635 that that would create a fact specific assessment

01:42 - 19.806 elevated to the level of exigency, unlike a firearm?

01:42 - 23.143 Yes. Now, I understand that the court may not agree

01:42 - 25.345 there, but our position is and that's

01:42 - 25.745 this has been

01:42 - 29.149 the position also with other states construe their counsel, their own court

01:42 - 32.652 state constitutions that reject the federal automobile exceptions.

01:42 - 34.954 Some of those cases are firearms cases.

01:42 - 36.923 Some of those cases are drug cases.

01:42 - 39.292 But they you are asking for a per se,

01:42 - 42.929 our per se signing that plain view equals exigency.

01:42 - 46.533 See, I can easily distinguish a firearm

01:42 - 50.503 on the 2400 block of North Indiana scares with

01:42 - 52.505 a nickel bag or a joint.

01:42 - 54.040 Can't kill anybody.

01:42 - 56.876 Not such a big thing for exigency.

01:42 - 01.247 But you're telling me or telling us that it is

01:43 - 05.618 which to me what you're saying is we want to play per say rule.

01:43 - 09.656 That plain view equals exigency, and we're not going to do that.

01:43 - 11.291 Okay.

01:43 - 13.993 As I've indicated in my brief, our position is not per

01:43 - 17.097 se rule our position that it has to be suddenly arising

01:43 - 21.000 after a traffic stop and that there are other special circumstances

01:43 - 24.871 that would elevate the privacy interest involved, such of the warrant.

01:43 - 29.709 What would be the circumstance between a joint, a loaded firearm?

01:43 - 34.781 In either event, the police have no event, have no advance warning,

01:43 - 37.517 and there's a question of what is practically required

01:43 - 41.755 before the police simply reach through a window and take a nickel bag

01:43 - 44.991 rather than going and go through the process of having

01:43 - 49.295 of guarding the car, having somebody go and draft a search warrant,

01:43 - 51.364 then having the DA's office review it,

01:43 - 53.333 which has to be done so that that's under way.

01:43 - 55.201 That's the first question.

01:43 - 57.037 Every magistrate is a male.

01:43 - 58.104 We're talking playing.

01:43 - 01.708 You leave out this concept of warrant.

01:44 - 03.610 To me it's like a red herring.

01:44 - 06.479 We're talking an exception to the warrant requirement.

01:44 - 09.816 We're looking at view to get lawful access.

01:44 - 13.920 We have to have a fact specific assessment for exigency.

01:44 - 17.557 That's what Alexander has created for Pennsylvania.

01:44 - 22.629 The question I have is what I'm hearing from you is plain view in and of itself.

01:44 - 26.299 No matter what this contraband is, is sufficient

01:44 - 29.436 to meet that fact assessment for the creation

01:44 - 33.039 of exigency to substantiate the fourth prong of plain view.

01:44 - 34.741 Does that make sense to you?

01:44 - 35.608 That's what I hear you.

01:44 - 37.110 That's our position that.

01:44 - 39.279 Yes, it ordinarily would.

01:44 - 41.648 But I understand the court might not go that far.

01:44 - 45.652 And I would also refer, Your Honor, to what former Chief Justice

01:44 - 51.624 Saylor said in this concurring opinion then Perry And that's that exigency isn't

01:44 - 56.229 susceptible to a simple definition because in in viewing

01:44 - 00.367 what kind of exigency is necessary, we have to look at the degree

01:45 - 03.370 of the privacy interests of the space and say that

01:45 - 07.307 that's a very high in the trunk and the glove box of many in the car.

01:45 - 08.708 We're dealing with something else.

01:45 - 11.978 We are just reaching through the open car door that's not keeping the seat.

01:45 - 15.281 That doesn't seem to me, counsel, to

01:45 - 17.817 so fully respect the court's decision.

01:45 - 21.388 And Alexander, I mean it we adopted

01:45 - 26.026 the Gary dissent and and and

01:45 - 27.060 and you seem

01:45 - 31.865 to be arguing from from a place that is essentially pre.

01:45 - 32.766 Alexander.

01:45 - 34.634 I don't understand

01:45 - 39.839 why after Alexander of cars or any different than than houses

01:45 - 44.144 I mean there's a protected privacy interest in a person's vehicle

01:45 - 49.816 after Alex's fender and so you mean then again I returned to the hypothetical

01:45 - 54.954 that was posed by posed earlier about somebody

01:45 - 57.657 about an officer seeing a gun

01:45 - 02.128 through an open window in a house that the officer has to get a warrant.

01:46 - 05.665 And it's different than the officer seeing a bomb

01:46 - 09.536 about to go off in a house or a bomb about to go off in a vehicle.

01:46 - 13.540 I suppose your whole argument seems to rest

01:46 - 17.977 on a distinction between cars and homes that is not there anymore.

01:46 - 19.312 Would you like to respond to that?

01:46 - 21.414 Yes, I think it is there.

01:46 - 26.052 I think that what Alexander did was return the law to pre Gary.

01:46 - 27.687 Gary was an aberration.

01:46 - 32.158 And under Pennsylvania law prior to Gary, there was never any finding

01:46 - 35.495 that houses and cars are the same.

01:46 - 40.100 There is certainly an enhanced privacy interest in cars in Pennsylvania

01:46 - 44.104 beyond what the federal government will recognize what the US Supreme

01:46 - 46.039 will recognize under the Fourth Amendment.

01:46 - 47.240 We agree with that.

01:46 - 51.244 But a car is not a home, particularly these open

01:46 - 55.048 areas of the car that anybody can see walking past.

01:46 - 56.349 Well, that's what counsel.

01:46 - 00.186 That's what that's what I was trying to get to in in you.

01:47 - 03.356 Alexander was a full search of a vehicle, wasn't it?

01:47 - 06.893 It's correct it was composed compartments, coverings.

01:47 - 10.830 I mean, it was it was not a plain view search and seizure.

01:47 - 11.464 Right.

01:47 - 15.702 So so you can sort of understand why the court went the way it went.

01:47 - 20.707 And Alexander and said, you know, car there's no blanket automobile exception.

01:47 - 25.445 But to consider the reasonableness of the of a warrantless

01:47 - 29.582 search here under the plain view doctrine, don't we have to consider the fact

01:47 - 33.987 that they didn't open up compartments, they didn't pull anything off.

01:47 - 36.022 They literally didn't search for anything.

01:47 - 38.625 They retrieved

01:47 - 41.628 something in plain view that any anybody could see

01:47 - 45.298 that there was really no concealment, no to exert privacy with it.

01:47 - 48.234 I think that's exactly right.

01:47 - 49.803 If I could. Well, there was an effort.

01:47 - 54.407 In fact, that's what court officer, a failed effort was a failed failed because.

01:47 - 57.210 SAUNDERS there was a movement to push it on.

01:47 - 58.611 Yes, there was an effort.

01:47 - 03.717 Yeah, well, this is a case of poorly hidden eagles in plain view.

01:48 - 07.220 I mean, this is this is the margins

01:48 - 10.223 of a plain view, but it certainly is where the idea is.

01:48 - 14.027 And I really do have to take exception to part of what you said

01:48 - 19.766 about the expectation of privacy in automobiles in Pennsylvania.

01:48 - 24.337 Your statement really ignores the major thrust

01:48 - 29.576 because Alexander, which was dispelling the federal rationale

01:48 - 32.846 that there was a much more limited

01:48 - 36.116 expectation of privacy in motor vehicles.

01:48 - 39.586 Are they the Gary descent

01:48 - 44.524 went into great detail about excellent excellent choices

01:48 - 46.359 and the majority and

01:48 - 50.430 Gary went to great lengths to describe the difference.

01:48 - 53.833 And your Article one, Section eight, and the federal Constitution

01:48 - 58.405 and how that impacts an automobile and an automobile search.

01:48 - 03.443 So, I mean, to say that what Alexander was

01:49 - 06.880 go back to our pre

01:49 - 09.816 Gary analysis just sort of ignores

01:49 - 15.088 the thrust of the privacy interests that was recognized in Alexander.

01:49 - 20.026 Well I you you will have to decide that I would respectfully disagree

01:49 - 25.565 I think what Alexander did was go back was to get rid of Gary as an aberration.

01:49 - 29.402 The court went and agonized over doing that and considering the story

01:49 - 34.107 decisis considerations doing that and by a43 vote decided to do that.

01:49 - 37.277 We completely accept that whole thing and understand

01:49 - 38.945 it and have no problem with it.

01:49 - 42.148 I think we would be very surprised if the Court sub Cilento

01:49 - 46.353 simply wiped out an entire line of cases interpreting the Pennsylvania

01:49 - 48.121 Constitution prior to Gary.

01:49 - 51.958 Okay, Let me let me go back to your answers to Justice

01:49 - 55.562 Daugherty's question, because to the extent

01:49 - 59.699 you are going to persuade members of this court

01:49 - 03.403 that this case had exigent circumstances

01:50 - 08.842 or didn't need exigent circumstances, you were going on a track

01:50 - 11.845 involving a loaded firearm,

01:50 - 16.916 which has some appeal, whether or not we allow this under

01:50 - 20.053 our construction, under Alexander, I don't know.

01:50 - 25.325 But you were on a track that had a little bit of appeal, maybe a lot of appeal,

01:50 - 30.997 and then you answered the bag of marijuana question the same way.

01:50 - 32.832 And so

01:50 - 35.335 then you lost me because

01:50 - 40.206 I thought that your focus on plain view and exigency really depended

01:50 - 45.712 on the fact that the officer had seen and knew there was a gun in there.

01:50 - 50.116 Well, I've tried to be consistent throughout the position that we've taken

01:50 - 53.920 our brief is that our view of a plain view is not limited to firearms.

01:50 - 58.091 But if the court is unable to accept that, then I could just take about,

01:50 - 03.396 you know, ten steps back and say no to justice to this question.

01:51 - 05.465 Well, that would be inconsistent with my brief.

01:51 - 08.868 I'm going to try to be consistent, but I certainly understand that

01:51 - 13.406 if the court will not accept that and if the court wishes to view

01:51 - 18.278 everything that is not a firearm differently, I would still strongly

01:51 - 22.615 urge you to affirm the particular facts of this case.

01:51 - 27.654 If I can just very quickly respond to one or two things that have been said.

01:51 - 30.256 Counsel repeatedly states that

01:51 - 34.961 the officer in this case expressed no concern for his safety.

01:51 - 38.064 I don't ultimately it's an objective inquiry,

01:51 - 39.366 so it doesn't really matter.

01:51 - 43.403 But the officer here said I did ask him if he had a weapon on him

01:51 - 45.038 and he lied to me. He said he didn't.

01:51 - 49.442 So I notified my partner for both our safety and the trial court

01:51 - 53.213 that he had a safety concern after this was after

01:51 - 57.183 the individual was in the police car, though, wasn't it?

01:51 - 58.618 The actual removal.

01:51 - 00.987 But think as I think that there has been some position

01:52 - 03.957 by the defense that there was never any safety concerns.

01:52 - 08.862 But but that's not the let with the lens we're using here.

01:52 - 10.830 Or maybe I mean, tell me if I'm wrong

01:52 - 14.868 that we're not looking at the

01:52 - 19.839 or are we at those at that apprehension moment?

01:52 - 22.876 In other words, Saunders is removed immediately

01:52 - 28.615 upon Officer Ibbotson, seeing that gun and handcuffed and put in the squad car.

01:52 - 31.918 And then Ibbotson takes the guard and he removes the clip in the chamber

01:52 - 33.820 around it, sitting on the seat there. Yes.

01:52 - 36.756 And at that other squad car comes by and says, Hey, do you need any help?

01:52 - 38.224 And he's like, No, we're good.

01:52 - 43.963 So I'm not sure I understand this whole argument about safety and exigency.

01:52 - 48.001 Post post traffic stop.

01:52 - 51.337 I think that we made two arguments below, both at the suppression

01:52 - 52.972 hearing and in our briefs.

01:52 - 55.542 One involved a sort of Michigan versus long,

01:52 - 59.279 and we sort of acknowledged there that would be an easier case

01:52 - 02.649 if there had been a slight change and rather than 2 minutes earlier,

01:53 - 05.285 if they had simply taken off the gun before putting them in the car,

01:53 - 08.421 I think would be a straightforward case of the Michigan versus long.

01:53 - 12.692 I think that this is honestly more difficult under Michigan versus law.

01:53 - 15.095 We argued that it simply didn't

01:53 - 19.099 make an ultimate difference because defendants interest was the same.

01:53 - 22.335 Whether or not it's taken out in this very fast

01:53 - 25.438 developing situation immediately before or immediately after.

01:53 - 29.943 You see, that's I think that's I think a prob from my perspective at this point,

01:53 - 33.546 I think that's a problem for you because that when you talk about

01:53 - 37.317 Michigan versus law, it sounds like you want to try to make this a Terry case.

01:53 - 40.020 But you would agree it's not a Terry case, right.

01:53 - 43.289 We made an alternative argument, one that it was permissible

01:53 - 44.424 under Michigan versus long.

01:53 - 49.229 But the argument that we focused upon was really the plain view argument.

01:53 - 52.966 And that's what I want to make to the Matrix thrust.

01:53 - 54.100 The other point I just

01:53 - 58.405 wanted to respond to is there's repeated discussion here about

01:53 - 03.743 how the police are going about conducting lots of unjustified searches of cars.

01:54 - 08.815 And there's a reference to a study of the Pennsylvania State Police of a survey

01:54 - 12.018 saying that only 73% of cases of car

01:54 - 15.021 searches did actually recover contraband.

01:54 - 18.324 If you look at that study, you'll find that overwhelmingly over

01:54 - 22.762 70% of the cases they're talking about are consent searches.

01:54 - 27.567 And once you take out the consent searches, then it goes up to 74%.

01:54 - 29.903 It probably goes up to close to 100%.

01:54 - 32.939 If you talk about a case like this of actually observing contraband.

01:54 - 36.776 So I don't think the study indicates some sort of terrible

01:54 - 39.779 broad problem of police impermissibly searching cars.

01:54 - 43.149 And to the extent that there is a problem, it seems to be a problem

01:54 - 46.152 with consent searches and who they ask to consent

01:54 - 49.022 and perhaps of frustration over

01:54 - 51.691 feeling that they it's impractical to get a warrant

01:54 - 55.862 may be really sort of asking for consent more than they should during a wrap up.

01:54 - 57.030 Or have you? I have.

01:54 - 00.367 All right. Thank you. Thank you, sir.

01:55 - 00.867 The next

01:55 - 04.137 case is Commonwealth versus Thompson.

01:55 - 07.674 This is another matter involving the ability of police

01:55 - 11.411 to search a vehicle following an arrest.

01:55 - 15.081 In this case, it involves what's called an inventory search.

01:55 - 18.418 That's where police conduct a search of seized property

01:55 - 23.189 to catalog the property wallets and police possession to protect police

01:55 - 27.627 from claims of theft and also to prevent potential danger.

01:55 - 29.929 Here are the facts of this case.

01:55 - 32.365 An inventory search comes up frequently.

01:55 - 34.501 If someone's arrested out of a car.

01:55 - 37.170 But here the police were called after a report

01:55 - 40.940 of an unconscious person outside of the car.

01:55 - 45.045 And the car was parked outside an auto repair shop in Delaware County.

01:55 - 47.681 The person who was unconscious was the defendant, Mr.

01:55 - 48.882 Thompson.

01:55 - 50.817 When police arrived, they found Mr.

01:55 - 54.721 Thompson had a suspended license and a warrant for his arrest.

01:55 - 59.659 The car was towed by a private company since it was blocking the driveway

01:55 - 02.962 before the tow officers did an inventory

01:56 - 05.965 search of the car and found a gun.

01:56 - 08.968 Mr. Thompson claim this was an illegal search,

01:56 - 11.938 but the trial court denied that claim.

01:56 - 16.109 Mr. Thompson was convicted illegally possessing a firearm in the car,

01:56 - 17.777 and the Pennsylvania Superior Court

01:56 - 21.448 affirmed the conviction and the propriety of the search.

01:56 - 26.152 The legal question in the Thompson case is whether the Pennsylvania Constitution,

01:56 - 29.222 Article one, Section eight, which is Pennsylvania's

01:56 - 32.692 equivalent to the Fourth Amendment of the US Constitution,

01:56 - 35.328 whether that applies to prevent

01:56 - 39.933 an inventory search or to have allowed the inventory search.

01:56 - 42.235 Mr. Thompson argues the inventory search

01:56 - 46.473 violated the Pennsylvania Constitution because police didn't have a warrant.

01:56 - 49.009 And he says that the Alexander decision

01:56 - 52.912 that was a previous 2020 decision of the Pennsylvania Supreme Court

01:56 - 56.216 said warrant is required for automobile searches.

01:56 - 00.754 He also points out it was a private tow company, not the police, who took the car.

01:57 - 04.524 So the inventory search exception wouldn't apply.

01:57 - 08.361 The parties cite a number of cases and making the arguments.

01:57 - 12.632 The crux of it is whether Pennsylvania Supreme Court will follow federal law,

01:57 - 18.438 which usually inventory searches or Pennsylvania's Alexander case law,

01:57 - 21.274 or find that Alexander requires

01:57 - 24.277 police to get a warrant before conducting that type of search.

01:57 - 26.279 If they needed a warrant and didn't get one.

01:57 - 30.050 They can't use the evidence they found in the warrantless search against Mr.

01:57 - 34.187 Thompson, and it may mean that his conviction could be thrown out.

01:57 - 35.088 May please the court.

01:57 - 36.089 My name is Michael Malloy.

01:57 - 39.325 I represent Mr. Thompson in this appeal.

01:57 - 42.395 If I may, I think

01:57 - 44.564 in my reading of Thompson

01:57 - 47.434 and reading of the Commonwealth's

01:57 - 51.337 opinion or assuming brief and Speer quotes opinion.

01:57 - 56.409 The debate seems to be about not the word search, but the predicate word inventory.

01:57 - 59.946 First, could you bring your microphone up here a little bit taller there.

01:57 - 02.115 There we go. Thanks.

01:58 - 04.718 The issue seems to be keeping up with the word search,

01:58 - 07.721 but the predicate word of inventory or investigative,

01:58 - 11.157 the position of the commonwealth seems to be that

01:58 - 15.362 and of the attorney general in their amicus brief that all Alexander

01:58 - 19.132 was saying is we're talking only about investigatory searches.

01:58 - 20.767 That's not what I read, Alexander.

01:58 - 23.703 Alexander says we're talking about searches

01:58 - 27.474 and the predicate word of inventory

01:58 - 28.541 or investigative.

01:58 - 30.710 Quite frankly, I don't think it applies.

01:58 - 34.314 I think the real critical word should be whether it's invasive or not.

01:58 - 38.885 I think that's really what Alexander was saying, that that as the court

01:58 - 41.921 has already said in the last argument, there's no distinction.

01:58 - 48.194 Now, I don't believe after Alexander between home and car

01:58 - 50.864 the the constitutional rights

01:58 - 53.600 that were given to the homeowner

01:58 - 55.335 now give it to the vehicle owner

01:58 - 59.572 or the vehicle operator under Alexander the act

01:58 - 05.045 and in this particular case, this was a vehicle that was blocking

01:59 - 09.783 some some parking spaces in a commercial lot that could have been Mr.

01:59 - 10.950 Thompson obviously

01:59 - 13.853 seemed to be under the influence of something said to be incoherent.

01:59 - 17.257 Ambulances were first called, but there's no difference whether or not

01:59 - 21.561 he was in that position or he had maybe had a fender bender or blocked

01:59 - 27.100 parking spaces or blocked the entrance to the to the commercial entity.

01:59 - 30.070 And police responded to that particular call

01:59 - 32.238 and they decided that if the decided, well,

01:59 - 34.941 there are two cars are blocking, I'm going to call a tow,

01:59 - 37.310 would they have the right at that point in time, if it's my car

01:59 - 42.148 or someone else's car that collided in that parking lot to go in the search,

01:59 - 44.818 because there's no distinction between that

01:59 - 47.354 set of facts and Mr. Thompson's.

01:59 - 51.124 And when I say the key word is evasive, the Commonwealth cites

01:59 - 54.327 the case of Commonwealth versus NACE, and they see a case

01:59 - 58.431 decided with this court in 1991 which upheld

01:59 - 03.269 it pre Alexander the search of the vehicle and in that particular case

02:00 - 07.040 the when the officer did the inventory search,

02:00 - 09.676 he went through and found things belonging to the individual.

02:00 - 12.212 He found a wallet in the wallet.

02:00 - 15.015 He opened it up and went through the contents of the wallet.

02:00 - 18.018 In the while, he found an address book.

02:00 - 20.487 He then went through the address book

02:00 - 23.857 and found the victim's name.

02:00 - 26.493 This court upheld that as part of the inventory

02:00 - 30.263 search for visibility, because basically you could search anything.

02:00 - 32.399 That's how evasive it could be.

02:00 - 34.567 We're not looking for a firearm.

02:00 - 36.669 We're just looking

02:00 - 38.638 and we go into trunks and we go.

02:00 - 44.044 And if you follow the logic behind this, I think the 1991 case,

02:00 - 48.815 which you have in this day event, logically to say good law,

02:00 - 52.252 if an officer today goes and finds a cell phone, well,

02:00 - 55.588 they says he could go through the address book, I could go through their contact,

02:00 - 56.589 their contacts.

02:00 - 01.661 I can go through CVM, make contact with other witnesses.

02:01 - 04.064 You're kind of going down that path of

02:01 - 08.034 when when does at what point in time should we add some case?

02:01 - 09.269 I'm not sure this is the case.

02:01 - 13.173 Draw line on what is or is not a permissible inventory search.

02:01 - 17.010 When does an inventory search cross the line into an investigative search?

02:01 - 19.279 But I don't think that's not what we have here.

02:01 - 23.616 We don't have any of these searches within a search fact pattern.

02:01 - 27.087 This was a straight up inventory search

02:01 - 30.757 where contraband was immediately identifiable.

02:01 - 32.459 I agree with that.

02:01 - 34.394 So so so gets the question.

02:01 - 38.198 The real question in this case is at least I think it is

02:01 - 40.834 what would a warrant have looked like?

02:01 - 43.503 Well, quite frankly, I don't know if they could have gotten a warrant.

02:01 - 45.905 And going back to Alexander, the Alexander says

02:01 - 48.675 the first default decision should be could go to a magistrate,

02:01 - 51.678 determine if there was probable cause for a search warrant.

02:01 - 54.414 And if you're doing an inventory search, you don't have probable cause,

02:01 - 55.482 you're just doing an inventory search.

02:01 - 59.953 So so so if you win, unless

02:02 - 03.356 unless the owner of the vehicle who has been arrested

02:02 - 08.028 or is not maybe not even present, can sense

02:02 - 11.531 that there can never be inventory searches in Pennsylvania.

02:02 - 13.199 Well, there may be multiple factors.

02:02 - 14.968 If somebody may say

02:02 - 17.537 you may have a witness at the scene who says, I saw him get out of the car,

02:02 - 20.306 looked like he had a gun or something, had to get out, can't do certain acts

02:02 - 25.979 that may lead to a magistrate to determine those particular set of facts may

02:02 - 27.347 justify a warrant.

02:02 - 28.248 But we don't have that.

02:02 - 31.885 We don't have that where I'm trying to figure out what the what

02:02 - 34.621 the natural implication of your argument is in this case.

02:02 - 37.624 And I think what you're what it is, is

02:02 - 42.295 inventory searches are not permitted in Pennsylvania.

02:02 - 43.363 Absent consent

02:02 - 45.965 has nothing to do with the Fourth Amendment, because where

02:02 - 47.067 the Pennsylvania Constitution,

02:02 - 49.836 because you could never get a warrant on an inventory search,

02:02 - 54.341 you don't have probable cause to believe that that the car has contraband in it.

02:02 - 56.309 You're doing the search for a completely different purpose

02:02 - 58.812 to make sure that you itemize the contents.

02:02 - 03.249 So later on, when the vehicle is returned, you're not sued.

02:03 - 05.018 The first part of the question. I agree.

02:03 - 08.021 I agree that they

02:03 - 09.856 that there is no distinction.

02:03 - 11.458 That's why I'm saying at the beginning, there's no distinction

02:03 - 13.293 between an investigative or an inventory search.

02:03 - 14.561 There's no distinction.

02:03 - 18.465 You need you need a search warrant to go in, period.

02:03 - 20.066 Well, there is a distinction in the sense

02:03 - 23.737 that an investigatory search you're searching for criminal conduct

02:03 - 26.406 and arguably

02:03 - 29.242 you could get probable cause to search for that.

02:03 - 31.978 You can't get probable cause for an inventory search.

02:03 - 33.747 You cannot get a warrant.

02:03 - 35.615 Well, I mean, it would

02:03 - 38.952 if you're correct, if it's inevitable, if you have a search warrant

02:03 - 43.289 and you do an investigatory search or a non search warrant investigator.

02:03 - 47.227 Not a search warrant, investigatory search is inventory search.

02:03 - 48.428 That's what I would argue.

02:03 - 51.331 I see your point there that. So I'm

02:03 - 53.666 following up on Justice Roberts question.

02:03 - 56.603 I took something you said a moment ago

02:03 - 59.606 to suggest a scenario in which

02:03 - 02.142 Thompson's arrested have an outstanding warrant.

02:04 - 04.811 It turns out they bring him in,

02:04 - 05.979 the car is towed.

02:04 - 07.614 It's got to be towed.

02:04 - 10.583 But then in the course of working on Thompson,

02:04 - 13.887 they develop probable cause to get a warrant to search that car.

02:04 - 15.822 Then they get then they get in the car.

02:04 - 17.757 What you're saying is, after Alexander,

02:04 - 22.028 they don't just get to search the car on some inventory theory, is that correct?

02:04 - 23.063 That's correct.

02:04 - 25.799 I mean, if they found they may have found drugs on him,

02:04 - 28.768 they might have had something on when they patted them down.

02:04 - 30.837 And then that would have led to holding

02:04 - 33.807 the vehicle and going and going to get a search warrant.

02:04 - 39.746 And and and that's what I would do under that scenario.

02:04 - 41.514 Police have no reason to believe

02:04 - 45.285 that there's contraband in the car at all.

02:04 - 49.122 But they don't want to be they don't want to take the vehicle

02:04 - 51.391 and then give the vehicle back.

02:04 - 55.195 And the owners say, you, you know, hey,

02:04 - 59.399 I had a you know, a wad of bills under the console here.

02:04 - 04.504 I had a really expensive Dyson in the back seat.

02:05 - 06.573 They're all gone now.

02:05 - 08.975 You guys owe me and they file a suit.

02:05 - 10.844 You're saying in light of Alexander.

02:05 - 12.612 Sorry. Inventory searches are out.

02:05 - 16.016 Out of out of out of are not allowed.

02:05 - 17.951 You can't protect yourself at all.

02:05 - 20.787 And we're just going to have to deal with those suits as they come.

02:05 - 24.290 Yes, I would respond in light of the argument of protecting of police officers

02:05 - 27.961 from allegations of missing items is, quite frankly, a red herring.

02:05 - 31.865 It's a red herring because the fact is there's no need to inventory.

02:05 - 34.434 When the tow truck company comes.

02:05 - 36.236 They don't inventory.

02:05 - 37.404 They rebuild their lives.

02:05 - 38.738 They're taking that vehicle.

02:05 - 39.806 They never open it.

02:05 - 43.309 They lock it, they take it locked so that when the owner of the vehicle

02:05 - 46.680 shows that they towing a pound

02:05 - 51.418 and they say, well, I had an iPhone in here, we never touch that car.

02:05 - 52.719 We never went in the car.

02:05 - 56.890 The reality is by going in the car, you're exposing yourself to liability

02:05 - 59.192 because there's no reason to go in there.

02:05 - 02.162 Counsel, I'm going to just ask you to stop the sirens.

02:06 - 05.432 Go back.

02:06 - 09.402 They're on their way to an inventory, so

02:06 - 12.205 it sounds like sometimes for my clients that way.

02:06 - 15.208 But but

02:06 - 22.982 how did your stupid

02:06 - 24.317 I think that's the end of them.

02:06 - 25.552 Okay.

02:06 - 28.288 And that is the reality by entering that vehicle, isn't it?

02:06 - 30.523 What's the need for going into their vehicle?

02:06 - 34.394 I know they say it's so that we don't get blamed for it as vision,

02:06 - 37.030 but if you knock it, you can't get blamed.

02:06 - 41.167 And if you take the scenario where they went into the vehicle, for example,

02:06 - 44.838 and you're missing the iPhone, you're missing a diamond ring you bought that day

02:06 - 47.240 and you're going to go pick it up, you say to the tow company,

02:06 - 50.443 I had a diamond ring here, I had a tow, I had an iPhone in here.

02:06 - 52.746 They said, we never want it,

02:06 - 55.815 but I'm going to sue the tow company because they had the vehicle

02:06 - 57.550 and they've got a first person to go bring in.

02:06 - 00.887 It's a police officer because they went in.

02:07 - 04.491 All the police officers are really doing is exposing themselves to liability

02:07 - 07.560 because the point is, why are they going in?

02:07 - 09.162 Why are they going in?

02:07 - 10.397 What is the purpose of going it?

02:07 - 13.700 If they lock it, they're 100% protected.

02:07 - 18.338 Because even if you had the best inventory search ever, you still may miss items

02:07 - 22.042 and and and therefore you're going to be blamed for it.

02:07 - 24.077 No, the top cop is going to be paying for it.

02:07 - 28.314 And the reality is that there's no need to go in for that vehicle.

02:07 - 33.553 Counsel, share with us how Alexander is applicable to your case.

02:07 - 38.858 When Alexander did not involve an inventory search, what

02:07 - 41.394 position is it about searches?

02:07 - 44.364 It involves the expansion or the

02:07 - 46.199 expansion for the application of Article one,

02:07 - 49.202 Section eight, that it didn't make a distinction.

02:07 - 51.838 You're correct. It did not make a distinction.

02:07 - 54.074 It made a distinction, however, of a search.

02:07 - 56.876 I know it's easy to make the comparison to a home,

02:07 - 59.512 but the point is to make a search.

02:07 - 03.283 What Alexander did was took away the protection

02:08 - 06.152 of the automobile exception as far as getting into a vehicle.

02:08 - 10.423 And this court in a prior argument made that repeat that again,

02:08 - 14.194 it took away the automobile exception.

02:08 - 14.728 That was it.

02:08 - 18.598 The federal Alexander the federal federal I probably say or did was create

02:08 - 22.535 a new requirement of a fact specific assessment of the accident.

02:08 - 26.473 Correct it I apologize The federal automobile exception

02:08 - 29.676 if you know and the prior

02:08 - 32.679 argument from this court today was

02:08 - 35.715 what is the distinction between a house and a vehicle

02:08 - 37.851 and the question is, like I said at the beginning,

02:08 - 40.353 it's not where there's an inventory or investigatory.

02:08 - 44.190 It's whether it's evasive, whether it's it's violating

02:08 - 48.928 that right against an unlawful entry and search to the home or the vehicle.

02:08 - 52.132 I think the court in Alexander didn't feel the need

02:08 - 55.101 to itemize a home.

02:08 - 58.104 Alexander trailer park, whatever it may be.

02:08 - 00.206 Counsel, can I just follow up on that?

02:09 - 04.444 Because there are circumstances under which

02:09 - 05.945 police officer can

02:09 - 08.882 a house without a search warrant

02:09 - 12.419 and it falls within this same context of administrative

02:09 - 16.256 searches or community caretaking.

02:09 - 19.125 And so that's the difference

02:09 - 22.495 between Alexander in this case.

02:09 - 26.299 I mean, this case involves an administrative of or community

02:09 - 29.302 caretaking function versus investigation.

02:09 - 32.672 And that distinction exists in homes also.

02:09 - 34.374 I mean, I get it.

02:09 - 35.642 You're a little bit skeptical

02:09 - 39.913 about the inventory search in general and the exception for it.

02:09 - 43.383 But that doesn't mean that Alexander

02:09 - 46.386 encompassed that entire field

02:09 - 47.153 of respect.

02:09 - 49.389 I don't I don't believe that if police officers

02:09 - 52.392 go into a home and begin to inventory a home,

02:09 - 56.996 no officers can enter into the home without a search warrant

02:09 - 01.334 under certain circumstances for community caretaking purposes.

02:10 - 03.503 And if they have to

02:10 - 08.441 in the context entering to save life for

02:10 - 12.045 the search for a bomb or something of that nature, you know,

02:10 - 17.217 they they have to go through people's belongings and things like that.

02:10 - 18.084 I mean, it happens.

02:10 - 23.289 I mean, the gas leak cases where, you know, government

02:10 - 27.327 allows entrance into homes to determine on a regular basis

02:10 - 30.296 whether or not the gas lines are working, etc., etc..

02:10 - 35.168 I mean, there's a whole area of of law

02:10 - 38.738 that encompasses these administrative type searches.

02:10 - 44.344 And that's how we have always looked at inventory searches as opposed

02:10 - 49.382 to an investigative search, which is what we had at issue in Alexander.

02:10 - 51.618 That is how we always looked at it.

02:10 - 54.721 But in all the facts and areas, respectfully that you gave,

02:10 - 58.658 they would be exigent circumstances that would also apply to a vehicle.

02:10 - 01.428 In other words, if it's a gas leak

02:11 - 02.195 or something

02:11 - 05.198 to that effect that needs, whether it's the

02:11 - 09.602 inspection people to come in with somebody else to come in to secure

02:11 - 14.307 whatever is going on in the house, smoke fire department would have to come in.

02:11 - 16.943 The police would probably say, yes, that's it, that's it.

02:11 - 17.844 Exigent circumstances.

02:11 - 21.748 They're in there doing an administrative procedure,

02:11 - 25.151 not a police procedure, and they observe things.

02:11 - 27.354 And if we're going to get to a plain view argument we just had.

02:11 - 29.389 But but that's different.

02:11 - 30.256 They're not coming in.

02:11 - 35.128 They're simply not coming in because because the people left the house

02:11 - 39.232 and and and and somehow another police vehicle, you know,

02:11 - 40.600 we were told to hold it here.

02:11 - 42.001 Maybe we were told to hold it here

02:11 - 43.970 while we go see if we can get a warrant for the house.

02:11 - 46.906 So we say outside, we hold the house,

02:11 - 49.509 but instead we go in the house just to make sure

02:11 - 53.079 in case when somebody comes, we're not accused of taking something,

02:11 - 56.416 they are administrative procedures, whether it's the gas line, the water line,

02:11 - 03.123 the fire department, they are not law enforcement in going into the house

02:12 - 06.659 for searching and going through individual items in the house.

02:12 - 10.830 If that's how offensively personal the search can be,

02:12 - 12.866 it's going to go through my briefcase.

02:12 - 15.268 It's going to go through my computer. It needs to.

02:12 - 17.437 For what purpose?

02:12 - 19.606 The purpose would be if you're if you're going in for the gas line

02:12 - 22.008 for what purpose, are you going through that times?

02:12 - 24.110 You should be checking the gas line

02:12 - 26.846 if we check whatever else brought it to the house.

02:12 - 29.182 Missing person,

02:12 - 30.550 absolute

02:12 - 33.219 But what are you going through my personal belongings for?

02:12 - 35.722 And that's what that's that

02:12 - 39.459 You cannot have that situation in a

02:12 - 41.327 in house and on the house.

02:12 - 44.230 And you cannot have that in a car or a vehicle, I should say.

02:12 - 47.233 We always talk about court, but obviously we know there's more than infrastructure,

02:12 - 51.771 all vehicles, those two items are equal

02:12 - 54.474 and they're equal as far as exigent circumstances.

02:12 - 56.476 They may be created.

02:12 - 59.479 You may see a bomb in a car, you may see something of a leaking gas

02:12 - 02.082 that may justify the existing circumstance.

02:13 - 05.452 Circumstances go in, but you simply just can't go in

02:13 - 07.887 because you're going to tow the car

02:13 - 10.857 and in the car and in the case of the house,

02:13 - 12.359 you know, you're not going to be responsible

02:13 - 15.562 other than what you did administratively in the house.

02:13 - 18.598 You know, if you if you kind of screwed up relining the gas line.

02:13 - 19.599 Yeah. Going to be liable.

02:13 - 20.734 But other than that,

02:13 - 24.637 nobody is going to say they went into my jewelry box and took stuff out.

02:13 - 27.574 Some of my personal belongings are, but because they didn't

02:13 - 30.877 do a full inventory.

02:13 - 31.344 All right.

02:13 - 32.612 Anything else?

02:13 - 36.416 Looks like you.

02:13 - 42.322 Thank you.

02:13 - 46.826 Good.

02:13 - 47.660 Good morning, Your Honor.

02:13 - 48.828 Is May please the court.

02:13 - 51.097 Kelly, we're representing the Commonwealth.

02:13 - 54.834 This case, before you really presents a very narrow issue.

02:13 - 56.770 The question here is only

02:13 - 00.940 whether Alexander abolished the inventory search exception.

02:14 - 03.810 It's not whether the inventory search

02:14 - 07.313 exception could or should be limited in some way.

02:14 - 09.549 And this here, what's the difference?

02:14 - 12.552 I mean,

02:14 - 13.687 what's the difference between them?

02:14 - 18.825 Doesn't Alexander burst the bubble of the inventory search in Pennsylvania?

02:14 - 22.529 I don't think it does, because Alexander, just like

02:14 - 27.133 dairy was before, it talked exclusively about probable cause searches.

02:14 - 31.371 So whether or not it used the word investigatory, Alexander and Gary,

02:14 - 35.108 both assuming the presence of probable cause, it's

02:14 - 37.043 right there in the very first sentence of Gary.

02:14 - 40.780 It specifically says in that first sentence that they're only talking

02:14 - 45.485 about warrantless searches that are, quote, supported by probable cause.

02:14 - 49.923 So then when this court picks up Alexander six years later, again, right in that

02:14 - 54.394 first sentence, they make it clear that they're addressing a very narrow issue.

02:14 - 58.631 This court said it's just deciding whether to overrule or limit Gary.

02:14 - 01.901 So it's confining itself to that same universe that Gary,

02:15 - 04.771 that universe of a probable cause search.

02:15 - 07.707 And at its essence, an inventory search

02:15 - 12.245 is just so diametrically different from an investigatory search.

02:15 - 14.014 It's a caretaking search.

02:15 - 18.184 It's it's right there in the test or an inventory search.

02:15 - 19.319 So let me ask you a question.

02:15 - 22.489 What if the individual whose car seized doesn't want an inventory

02:15 - 24.791 search doesn't care about the caretaking function?

02:15 - 26.893 Did they have a right to opt out?

02:15 - 27.861 We've already established

02:15 - 31.498 that once based upon probable cause to search Alexander, correct?

02:15 - 32.499 Yes. The other one's not.

02:15 - 36.036 The other one's an inventory search for a community caretaking function.

02:15 - 39.839 There's a little bit of a tension there with Article one, Section eight, Right.

02:15 - 44.177 I think certainly if that would be a limit that the court can consider

02:15 - 47.480 in the future, whether individuals can opt out of inventory searches.

02:15 - 51.384 I would also point out, though, that that protecting the owner's

02:15 - 55.288 belongings for his benefit is just one of the interests

02:15 - 58.324 that the inventory search exception was created for.

02:15 - 01.661 It's also obviously to protect the police from false claims of loss.

02:16 - 03.897 What if we create an exception to the inventory search

02:16 - 04.798 where the owner drops out

02:16 - 08.068 and signs a waiver to that sort of place if anything's missing?

02:16 - 12.305 I think in a future case, that brief said issue that presents that situation,

02:16 - 13.673 that could be something to consider.

02:16 - 15.842 That's obviously not what we have before us today.

02:16 - 16.943 He didn't opt out.

02:16 - 20.246 Well, it's much more common in Philadelphia

02:16 - 23.516 for cars to be towed by tow truck operators.

02:16 - 25.318 Do they inventory?

02:16 - 26.586 Did they do an inventory?

02:16 - 28.688 I don't think they did. Or do they Miocic.

02:16 - 32.625 And so is there a state of lawsuits against all these

02:16 - 34.127 towing companies in Pennsylvania?

02:16 - 38.164 Do we see a spate of lawsuits against them for stolen property?

02:16 - 42.202 I couldn't speak to the frequency of the lawsuits,

02:16 - 44.704 but I can see that the tow company has

02:16 - 48.708 a much more limited interest in

02:16 - 51.778 in when they're towing the car than the police do.

02:16 - 54.047 It's not investigatory in either case.

02:16 - 55.515 Then how is it different?

02:16 - 57.717 I think, number one, the police are interested

02:16 - 00.787 in protecting against false suits just like a tow company would.

02:17 - 03.957 But they're not just interested in that for their own purposes.

02:17 - 06.693 Society has an interest in the police

02:17 - 10.864 not spending their resources defending against these false lawsuits.

02:17 - 13.066 That's what Justice Powell said in Opperman.

02:17 - 15.835 But there's other concerns also at play for the police.

02:17 - 19.339 They're also concerned with as caretakers,

02:17 - 22.409 for, you know, for society in protecting the owners belongings.

02:17 - 26.613 They're also concerned with avoiding danger that may occur.

02:17 - 30.050 You know, that's a function that the police is supposed to carry out.

02:17 - 32.819 It's not a function that we expect from our take up.

02:17 - 37.157 The danger is addressed by the the exigency doctrine.

02:17 - 41.394 If there's a bomb in the car, you know, or smell of chemicals

02:17 - 44.698 about to go up or something like that, that's all taken care of.

02:17 - 47.667 I mean, that's that's not in contest here.

02:17 - 51.471 It's this it's this

02:17 - 54.040 apparently mythical Offerman construct,

02:17 - 58.478 which is in deep, deep tension with our decision.

02:17 - 00.480 And Alexander and I.

02:18 - 03.817 So I guess I'd ask you why

02:18 - 07.654 we should respect Opperman post

02:18 - 13.126 Alexander on this this theory that that officers have to do this

02:18 - 18.431 inventory with a car that they don't do when they search a home.

02:18 - 20.667 For example,

02:18 - 22.435 I I'll make a couple of points.

02:18 - 24.437 Let's get off track.

02:18 - 28.608 So first as to the exigency, I don't think that that is covered

02:18 - 32.779 inherently by, you know, when the police officers are seeing a car,

02:18 - 36.416 for instance, if a bomb is in the trunk, they're not going to know that it's there.

02:18 - 38.518 So they may be sending that off with a tow company

02:18 - 41.254 with something inside the car that's dangerous.

02:18 - 45.392 You know, there's also the element that something that's innocuous

02:18 - 50.030 could become hazardous to someone taking the car that's not aware of it.

02:18 - 54.100 You know, I think that was one of the concerns that justice indicated.

02:18 - 58.738 These hazards are rare, but the consequences of them can be great

02:18 - 59.572 when they're there.

02:18 - 02.642 And it's not always immediately apparent just by looking at a car

02:19 - 05.679 whether this one's a hazard or this one's a house, there's no problem.

02:19 - 07.280 We agree there's no probable cause.

02:19 - 08.515 You're right. Yes.

02:19 - 11.117 So suppose I said to you.

02:19 - 14.120 Would you like me to go through your things

02:19 - 17.891 to make sure I don't steal anything or to make sure there's nothing in there

02:19 - 19.392 that's going to blow up on me?

02:19 - 20.960 Would You mind if

02:19 - 25.331 I think if you were somehow taking custody of me in that scenario and,

02:19 - 28.368 I don't know, moving me, like in the context of a booking search?

02:19 - 30.170 Yes. I think you should.

02:19 - 32.505 And I think that right there is the difference here

02:19 - 34.407 between a home and a car.

02:19 - 37.944 You know, if you use the example that the defense offered in their brief, he said

02:19 - 41.648 if you arrest somebody in their home, you're not going to inventory the home.

02:19 - 44.284 Of course not. You're not moving the home anywhere.

02:19 - 46.052 You're not taking responsibility for it.

02:19 - 49.522 You're going to leave that home right where it is completely intact.

02:19 - 51.558 But you are moving the person.

02:19 - 55.228 You're taking responsibility for that person and taking them into custody.

02:19 - 57.330 Well, couldn't the homeowner later say

02:19 - 00.967 those police officers stole all kinds of stuff from my home?

02:20 - 04.137 In fact, there's all kinds of little knickknacks they might be able to.

02:20 - 05.105 I'm not saying they do.

02:20 - 08.475 I'm saying under your construct. Right. That

02:20 - 09.509 what's the difference?

02:20 - 14.114 Couldn't they couldn't the defendant there later say,

02:20 - 16.783 hey, they they stole all kinds of stuff from my house.

02:20 - 18.118 It wasn't inventory

02:20 - 21.554 or how did the police know there's not something

02:20 - 25.325 in that home that isn't going to be combustible and blow up.

02:20 - 28.328 I just don't see the difference with a car.

02:20 - 32.032 I think the difference is that when you're affirmatively moving

02:20 - 35.769 something, you're affirmatively essentially taking into your possession

02:20 - 38.905 or you're responsible for it in a different location,

02:20 - 43.076 you're ensuring in a way that it's going to be safe,

02:20 - 45.779 that it's not going to pose a danger to the public.

02:20 - 49.315 I don't think that a House is posing any added danger

02:20 - 52.652 to the public because the police walked in the door.

02:20 - 57.090 If it was danger before they walked in, sure, it's going to be a danger after,

02:20 - 00.360 but it's not going to be a danger because the police had it towed.

02:21 - 02.228 And that is a scenario that,

02:21 - 06.132 although unlikely, is possible in the context of an inventory search of a car.

02:21 - 08.468 Well, I guess just one last thing on that.

02:21 - 11.104 I mean, I think it ought to alarm residents

02:21 - 15.942 of this great city to think that anytime they park a car here,

02:21 - 17.577 if it's towed.

02:21 - 18.945 That car is fair game.

02:21 - 21.948 Everything in that car could be inventoried.

02:21 - 25.418 Is not is not the logical extension of your point?

02:21 - 29.756 I think that if the police are towing the car because it poses

02:21 - 32.759 some kind of public safety risk

02:21 - 35.228 or some kind of huge traffic obstruction,

02:21 - 39.599 I don't think every time a car is towed, would you conduct an inventory search?

02:21 - 43.603 I think the point of it and this case is a great example, it's

02:21 - 46.206 not just that this car wasn't where it was supposed to be.

02:21 - 48.708 It's that it was posing an obstruction.

02:21 - 50.343 It had to be towed for that reason.

02:21 - 53.546 So, yes, under that circumstances were the police are the ones doing it?

02:21 - 55.682 The police are the ones moving it.

02:21 - 57.150 I think you are entitled to conduct

02:21 - 59.786 an inventory search under those circumstances.

02:21 - 00.153 Right.

02:22 - 04.557 What do those circumstances add to the notion that there's something

02:22 - 08.995 potentially dangerous in that vehicle versus a car just parked on the street?

02:22 - 11.731 I think it adds the involvement of the police versus

02:22 - 15.468 if it's just a private tow company that's that's conducting the search,

02:22 - 19.005 because it's not just a danger element, it's the interest of the police.

02:22 - 22.676 It's the interests of protecting the owner's belongings.

02:22 - 24.644 What is he insisted the police.

02:22 - 27.113 I'm really confused about that.

02:22 - 30.183 I think the interests of the police are most specifically

02:22 - 33.787 about protecting themselves from false claims of loss.

02:22 - 36.690 But there's no there's there's no it is there.

02:22 - 37.924 How to put it aside?

02:22 - 40.927 What evidence is there of some raft of claims

02:22 - 44.664 against the police for for stolen property?

02:22 - 46.366 I mean, there's not even a

02:22 - 50.403 there's not even a scintilla of evidence of that against these private operators.

02:22 - 54.574 So, so much the more would we doubt that there's some looming

02:22 - 59.412 threat of a mountain of claims against the police for such.

02:22 - 59.946 Well, I would

02:22 - 03.883 say I mean, first, I don't know if tow companies regularly

02:23 - 08.788 face lawsuits, it's entirely possible that they may limit their liability.

02:23 - 11.124 Yes, they're probably Bayley's.

02:23 - 14.527 And I don't know how the police or any different in that circumstance

02:23 - 17.530 I mean this rash of lawsuits.

02:23 - 18.898 I that's what I said.

02:23 - 22.769 I just don't I don't understand where that notion comes from.

02:23 - 27.474 Know I think it's important to remember that that really these concerns about

02:23 - 31.277 should there be an inventory search or at the end of the day or and

02:23 - 35.448 different questions from a public policy perspective wouldn't be better off

02:23 - 38.184 having the police have no involvement with telling the car.

02:23 - 40.453 In other words, if there's a car parked illegally,

02:23 - 43.456 call a private tow company and have them tell it and take responsibility for it.

02:23 - 46.259 This way the police don't have to conduct an inventory search.

02:23 - 49.029 You don't have to worry about illegal search and seizure.

02:23 - 52.365 You have basically a private company basically doing the job

02:23 - 55.802 that you're insisting that the police officers should do.

02:23 - 59.239 And in order to insulate themselves from liability

02:23 - 01.608 to conduct an inventory search, what may be better off

02:24 - 04.077 is having a private company do it as opposed to the police?

02:24 - 06.012 Well, I mean, I'll say more narrowly.

02:24 - 08.114 I don't think I'm saying inventory searches

02:24 - 11.851 should exist forever more in exactly the state that they are.

02:24 - 15.488 What I'm saying is Alexander, abolish them.

02:24 - 19.426 And what I'm also saying is that at the end of the day,

02:24 - 22.595 an inventory search is very harmonious

02:24 - 25.832 with many of these ideas about privacy,

02:24 - 29.803 about protecting those interests that Alexander was talking about.

02:24 - 33.506 It's baked right into the standard that these searches have to be reasonable.

02:24 - 35.208 Well, it's tremendously convenient.

02:24 - 36.343 I don't dispute that.

02:24 - 39.612 It's tremendously convenient for law enforcement

02:24 - 42.782 to have the benefit of inventory searches.

02:24 - 47.354 But I'm still not hearing from you any basis for suspecting that post.

02:24 - 51.758 Alexander They should be deemed constitutional in this Commonwealth.

02:24 - 54.661 I think they should be deemed because Alexander

02:24 - 57.697 had nothing to do with caretaking the searches.

02:24 - 01.301 I mean, when you look even just at the reasoning of Alexander,

02:25 - 05.739 you know, a lot of Alexander and of the chief justice's dissent in Gary,

02:25 - 09.642 a lot of those opinions talks about the ease today

02:25 - 12.045 of getting search warrants that it's so much easier today

02:25 - 13.980 for the police to just out and get a warrant.

02:25 - 17.250 We should encourage that whenever it's possible to do that.

02:25 - 19.919 Well, yes, in the context of an investigatory search, that's

02:25 - 21.254 obviously relevant.

02:25 - 26.026 But you can never get a search warrant to conduct an inventory search.

02:25 - 29.129 So if we're going to apply Alexander to inventory searches, well,

02:25 - 32.499 that's the first chunk of the opinion that you essentially have to carve out.

02:25 - 35.335 And it's not the only part of the opinion, unfortunately.

02:25 - 38.038 This is just a way of of defeating Alexander.

02:25 - 39.305 I mean,

02:25 - 41.307 in reality,

02:25 - 46.746 it seems divorced from reality to suggest that there's no investigatory motive

02:25 - 50.550 in these inventory searches just to claim that these are to protect

02:25 - 54.554 officers from allegations of

02:25 - 56.056 how can that

02:25 - 59.626 how can that claim be made with a straight face

02:25 - 02.162 posed? Alexander

02:26 - 05.632 I think that if it were to acquire a search,

02:26 - 10.737 have no possible, even conceivable, slim chance of an investigatory motive.

02:26 - 14.040 We're essentially asking police officers to turn off their brains

02:26 - 17.944 I mean, any time they go into a car, a house, any situation,

02:26 - 21.614 there's a possibility that they might find some evidence of crime.

02:26 - 27.587 And I think this court has recognized that caretaking searches are important.

02:26 - 31.191 They caretaking searches are reasonable, but

02:26 - 33.626 they have a different value.

02:26 - 35.729 I, I don't want to get to

02:26 - 38.998 I'm not going to get too far down the idea of motive versus non motive.

02:26 - 43.002 You know, I think, you know, police officers who do inventory searches

02:26 - 46.039 probably have very good motives and maybe there are some that don't.

02:26 - 48.942 But I'm not going to assume all intent.

02:26 - 49.876 I agree

02:26 - 53.546 with you that Alexander is is is somewhat different

02:26 - 58.818 in a limited application because Alexander really was like, you get a warrant.

02:26 - 00.954 So really all this comes down to

02:27 - 04.557 is under Pennsylvania's constitution and I guess under the under

02:27 - 07.360 you know, the federal Constitution

02:27 - 11.197 is is an inventory search

02:27 - 16.903 reasonable is in and is is an inventory period

02:27 - 18.772 because you would not get a warrant to do

02:27 - 22.509 an inventory search Is an inventory search in and of itself

02:27 - 25.445 an unreasonable search and seizure

02:27 - 29.382 is is the is the car here?

02:27 - 31.251 Obviously, the car has

02:27 - 34.587 some privacy interest that is protected under Pennsylvania times.

02:27 - 38.625 As I misstated, the person has a privacy interest

02:27 - 42.495 in their vehicle because it protects the person, not the property,

02:27 - 45.298 that that is deserving of some constitutional protection.

02:27 - 49.202 So doesn't it just come down to the question of the reasonableness

02:27 - 53.073 of conducting an inventory search under these circumstances? Yes.

02:27 - 55.475 And I think an inventory search is entirely reasonable.

02:27 - 57.377 It's it's a caretaking search.

02:27 - 00.380 And frankly, reasonableness is in the standard.

02:28 - 02.349 So Commonwealth,

02:28 - 03.416 the question

02:28 - 06.619 this court is whether the trial court and Superior court

02:28 - 10.290 erred in determining the inventory search of an automobile

02:28 - 14.527 as it accepts in the Pennsylvania Supreme Court decision in Alexander

02:28 - 18.498 requiring a search warrant before conducting a search of a persons vehicle

02:28 - 22.736 or requiring the production and proof of exigent circumstances

02:28 - 24.537 for warrantless searches.

02:28 - 27.340 So the way I view this issue

02:28 - 30.577 is post Alexander

02:28 - 33.146 and any types of searches, a.k.a.

02:28 - 35.982 this case, an inventory search,

02:28 - 39.352 does that remain an exception to the warrant requirement,

02:28 - 44.057 as is under the caretaking exception or post?

02:28 - 49.496 ALEXANDER Do we now, when we're looking at warrantless exceptions, have to have

02:28 - 53.433 a fact specific basis for exigency

02:28 - 58.471 to justify the inventory of the car.

02:28 - 59.639 What is your position?

02:28 - 02.609 That's how I that's how the question is framed in my mind.

02:29 - 05.645 And I haven't gotten a real answer.

02:29 - 10.350 I think post Alexander we're in the exact same position that we were before.

02:29 - 14.788 Gary that an inventory is an exception to the warrant requirement,

02:29 - 19.292 that it doesn't require that kind of fact intensive analysis.

02:29 - 22.062 And you're based off that I'm sorry, you're basing that on the fact

02:29 - 26.166 that Alexander involved a warrant like a probable cause

02:29 - 29.669 and not an inventory search. Yes.

02:29 - 33.173 And you and and you're maintaining counsel to follow up on that question

02:29 - 36.476 that the officer takes off his investigatory hat

02:29 - 40.246 and he puts on his his or her community caretaker hat.

02:29 - 43.683 So in the in the caretaker space,

02:29 - 48.321 if there's a baby, you know, crying in the back seat or a person

02:29 - 52.325 falling out in the back seat, there's your caretaker situation.

02:29 - 56.496 But here you're talking about calling in the car to be removed.

02:29 - 00.433 And then under the premise of that removal, rooting through it

02:30 - 05.538 and looking for what's in the car, aren't those different kinds of scenarios?

02:30 - 08.375 And why not just get a warrant for that car?

02:30 - 11.511 And if you don't have probable cause, then try to develop it,

02:30 - 14.681 interrogation of the defendant or some other investigation.

02:30 - 17.417 Why is that so difficult?

02:30 - 20.887 Because you could never get a search warrant to conduct an inventory search.

02:30 - 22.622 It's right in the standard

02:30 - 26.793 that it can't be for the sole purpose of of investigation.

02:30 - 30.196 So if you go to get a search warrant, you have to show there's a fair

02:30 - 33.199 probability evidence a crime is going to be found in this car.

02:30 - 37.103 Well, if that's why you're going into this car, you're not conducting an inventory

02:30 - 38.204 search anymore.

02:30 - 39.272 Right. That's circular.

02:30 - 40.974 So it's circular, right? Because.

02:30 - 44.277 Because we all know that a hunch is not enough.

02:30 - 46.913 So if I just have a hunch,

02:30 - 47.247 but I

02:30 - 51.084 think if I can tow the car and an inventory search

02:30 - 53.920 will, by my hunch, turn something up,

02:30 - 57.290 I can get around the problem. Why?

02:30 - 59.759 Why should we allow that?

02:30 - 02.762 What's the caretaking function there?

02:31 - 05.131 I think it's important to remember that

02:31 - 08.702 inventory searches are are standardized.

02:31 - 12.138 There's not a huge amount of discretion

02:31 - 15.508 for officers to say in these situations,

02:31 - 18.712 well, maybe I have probable cause, maybe it's just a hunch.

02:31 - 20.447 I'll just do an inventory.

02:31 - 24.918 They have to be following a standard police procedure before they can do this.

02:31 - 27.287 The police procedure has to be reasonable

02:31 - 30.290 and they have to have the lawful authority to tow the car.

02:31 - 34.861 And so I think that's part of why we don't have a search warrant equivalent

02:31 - 37.564 for inventory searches, because right there

02:31 - 41.301 in the test is that standardization.

02:31 - 44.571 You don't need a neutral magistrate to go in in each and every case

02:31 - 47.207 and see is the officers hunch enough?

02:31 - 49.476 They're not also offering on a hunch.

02:31 - 51.478 They're just following a standard procedure

02:31 - 53.546 and essentially checking the boxes as they go.

02:31 - 57.684 Now, if the policy's too broad, if the policy is invading too much

02:31 - 00.687 into an individual's privacy rights, which you know, could

02:32 - 04.958 certainly happen in cases, then there's an easy means to challenge that.

02:32 - 09.429 The standard says right there, the police procedure has to be reasonable.

02:32 - 10.597 So somebody can go to court

02:32 - 14.067 and say this policy the police have adopted is not reasonable.

02:32 - 20.006 Say, for instance, the police department says, well, you grab somebody's phone

02:32 - 23.743 and then you turn it on and you inventory every single little detail

02:32 - 24.778 that's in the phone.

02:32 - 28.314 I think that would very clearly be an unreasonable inventory search.

02:32 - 32.385 You don't need to do that that, doesn't serve any of the interests

02:32 - 35.188 that are articulated in these inventory search cases.

02:32 - 37.090 But to actually just seize the phone

02:32 - 39.959 and protect it until the defendant's able to claim it,

02:32 - 45.131 I think that is reasonable under the circumstances.

02:32 - 47.133 Any other questions?

02:32 - 48.935 Do you want to wrap up now?

02:32 - 51.604 We just ask that this court affirm the superior court.

02:32 - 54.307 All right. Thank you, counsel. Thank you.

02:32 - 58.411 The fourth case to be argued on Tuesday as entitled in Ray

02:32 - 02.349 Appeal of Prospect Crosier LLC.

02:33 - 05.418 This case is before Pennsylvania Supreme Court

02:33 - 10.323 on a petition for allowance of appeal to the Pennsylvania Commonwealth Court.

02:33 - 14.828 And the issue concerns the ability of a judge

02:33 - 18.098 to hear cases when he has assumed a position

02:33 - 22.535 that is an incompatible office.

02:33 - 24.104 The facts of the case

02:33 - 27.741 that a part time senior judge adjudicated.

02:33 - 32.812 Tax Assessment Appeals filed by Prospect Crosier, LLC

02:33 - 33.413 While

02:33 - 36.416 he was adjudicating this case, he accepted

02:33 - 40.387 the position on the Philadelphia Board of Revision of Taxes,

02:33 - 43.990 which is a taxing authority in Philadelphia.

02:33 - 47.060 Under Article five, Section 17

02:33 - 50.530 of the Pennsylvania Constitution, judges

02:33 - 54.501 are generally prohibited from holding in compatible offices,

02:33 - 59.272 and they are not to hold other municipal offices

02:33 - 03.677 in the Commonwealth or other federal offices.

02:34 - 04.878 Prospect Crosier

02:34 - 08.048 appealed the judge's decision to the Commonwealth Court,

02:34 - 11.518 which held that once the trial judge accepted his position

02:34 - 16.389 on the board of revision of taxes, he forfeited his office and that therefore

02:34 - 20.794 all of the decisions he issued after that date were without legal effect

02:34 - 24.464 or void.

02:34 - 26.433 The appellant, Chester Upland School

02:34 - 30.303 District successfully appealed to the Pennsylvania Supreme Court,

02:34 - 32.872 and it argues that the Commonwealth court

02:34 - 36.443 lacks ability under the Pennsylvania Constitution to determine

02:34 - 40.447 whether a judge may or may not hold an office.

02:34 - 44.217 The Chester Upland School District argues that the Constitution

02:34 - 47.487 reserves this power to the Pennsylvania Supreme Court,

02:34 - 53.693 acting through its Judicial Conduct Board and the court of judicial discipline.

02:34 - 56.896 The appellant further argues that the decisions of the judge

02:34 - 00.767 are not void and that the challenger Prospect Crosier

02:35 - 04.537 waited too long to object

02:35 - 06.973 that the camp or the appellant

02:35 - 10.477 excuse me rather also suggests in a reply brief

02:35 - 16.082 that the office of a part time senior judge is not an incompatible office

02:35 - 19.319 under the Constitution, with the position on the Board

02:35 - 22.322 of Revision of taxes,

02:35 - 24.257 the appellate prospect.

02:35 - 30.397 Crosier argues that the Commonwealth Court's decision should be affirmed.

02:35 - 32.198 It argues that the Office

02:35 - 35.735 of Judge even part time senior judge like this one

02:35 - 38.938 and being a member of the Board of revision of taxes

02:35 - 42.342 are incompatible offices and that when the trial judge

02:35 - 46.813 accepted his position with the Board of Revision of taxes,

02:35 - 52.018 he automatically forfeited his judicial office.

02:35 - 55.588 The appellee also argues that the Commonwealth Court's decision

02:35 - 57.223 in ordering that all of the judge's

02:35 - 01.361 decisions were void or without legal effect was correct.

02:36 - 04.130 And alternatively, Prospect

02:36 - 08.034 Crosier argues that the court should dismiss the appeal

02:36 - 10.937 because there are alternative reasons

02:36 - 15.308 Why the decisions of the Commonwealth Court was correct.

02:36 - 17.744 Chief Justice Todd Members

02:36 - 22.148 of the Supreme Court of Pennsylvania, Attorney Buyer

02:36 - 24.384 My name is Pamela Van Blunk, and I represent

02:36 - 27.387 Chester Upland School District.

02:36 - 31.758 The Commonwealth Court misconstrued the Pennsylvania Constitution

02:36 - 36.563 when it created a bright line rule that a judge automatically forfeits

02:36 - 42.969 his judicial office upon a finding that he violated Article five, Section 17.

02:36 - 46.172 The Commonwealth Court's interpretation of our Constitution

02:36 - 50.076 has great, great implication in three ways.

02:36 - 53.813 It it exposes litigants to uncertain

02:36 - 56.449 to the uncertainty of final orders.

02:36 - 59.619 It created a new remedy for disappointed litigants.

02:36 - 04.691 And finally, it usurps this Court's and the court of judicial discipline's

02:37 - 08.528 exclusive authority to determine when a judicial officer

02:37 - 11.731 is longer vested with judicial authority.

02:37 - 16.236 But this this really isn't a disciplinary matter, is it?

02:37 - 18.805 It involves judicial misconduct.

02:37 - 22.709 Just to Chief Justice Todd, and I will

02:37 - 26.913 surmise and get into that

02:37 - 27.747 Article five,

02:37 - 31.551 Section 70 is prohibited activities

02:37 - 35.288 Section 18 of Article five delineates

02:37 - 40.293 how this Court and the Court of judicial discipline in the

02:37 - 44.698 Judicial Board reviews or reprimands or sanctions.

02:37 - 50.136 A judge Is there any other circumstance where

02:37 - 52.739 lower courts are disempowered

02:37 - 56.743 from adjudicating constitutional claims?

02:37 - 58.812 I'm not sure if I understand it.

02:37 - 59.112 All right.

02:37 - 03.717 Well, suppose this wasn't suppose this wasn't Article five, Section 17,

02:38 - 07.120 but was instead Article one, Section eight, which we heard

02:38 - 10.123 a lot of arguments about this morning.

02:38 - 13.660 Any reason why the Commonwealth Court couldn't

02:38 - 17.030 adjudicate a claim under Article one, Section eight?

02:38 - 20.533 I think the Commonwealth can always adjudicate

02:38 - 24.804 whether or not there's partiality, whether or not there's bias.

02:38 - 31.644 But this art, if could step back just a moment, Your Honor,

02:38 - 33.713 the Constitution does

02:38 - 38.818 specifically delineate which offices are incompatible offices.

02:38 - 41.421 That's a separate section. Section 70.

02:38 - 45.291 That's Article six, Section two, Article five set.

02:38 - 48.895 And that specifically says incompatible offices.

02:38 - 52.332 What that set out, what that provision states

02:38 - 56.069 is that a federal office and a state office are incompatible offices.

02:38 - 01.007 That section of our Constitution also empowers the General Assembly

02:39 - 03.610 to by statute,

02:39 - 06.680 declare other offices, such as state offices

02:39 - 12.185 and municipal offices, which is what we have here under these

02:39 - 14.354 as incompatible offices.

02:39 - 16.256 I'm sorry, interrupt, but that's not my point.

02:39 - 21.528 My point is that it seems like the result of your argument would be that

02:39 - 26.933 while even a magisterial district judge somewhere in Pennsylvania

02:39 - 30.303 has the authority and indeed must resolve

02:39 - 36.209 a constitutional claim when it's made at his or her level,

02:39 - 37.177 you're saying for

02:39 - 40.880 this for this particular section

02:39 - 46.152 that nobody could adjudicate except the Supreme Court and the CJD?

02:39 - 50.190 And is there any other provision of our Constitution or is this the only one?

02:39 - 53.126 So what I'm saying, Your Honor, is that

02:39 - 57.330 the Commonwealth Court is not empowered to say that in a judicial officer

02:39 - 01.701 no longer how it is vested judicial, his judicial office.

02:40 - 04.204 There are two scenarios.

02:40 - 07.941 Section 18 specifically says when a judicial officer

02:40 - 13.813 automatically forfeits his office, those two scenarios are

02:40 - 16.516 upon conviction of misbehavior in office

02:40 - 20.353 by court, disbarment or removal Section 18.

02:40 - 23.757 The other scenario that a judge automatically forfeits

02:40 - 27.160 his judicial office is the filing of paperwork

02:40 - 31.297 to be on a ballot for public office other than a judicial office.

02:40 - 35.969 Those are the only two scenarios that our Constitution expressly states.

02:40 - 39.239 When a judicial officer automatic only forfeits

02:40 - 42.375 his or her judicial office.

02:40 - 47.347 What I'm saying is that this the allegations

02:40 - 50.083 of a constitutional violation

02:40 - 53.453 by Judge Braxton

02:40 - 58.058 does not amount to biased partiality or ill will by Judge fraction.

02:40 - 03.296 Instead, Prospect is asserting that there's a structural error in order.

02:41 - 07.434 To get to that structural error, you have to remove Judge Braxton

02:41 - 13.206 from his office of his judicial authority to enter into final orders.

02:41 - 16.876 How the Commonwealth Court got there was by saying

02:41 - 20.246 that these two offices are incompatible offices

02:41 - 24.651 now, and I will take Justice West's example a little bit further.

02:41 - 28.855 Question if I can.

02:41 - 32.158 Section 17 are several prohibited activities, right?

02:41 - 35.428 There are also judges can't take bribes, for example.

02:41 - 39.866 Judges cannot sexually or racially discriminate litigants

02:41 - 42.235 and they can't get a second job.

02:41 - 46.072 Those are all prohibited activities under Section 17.

02:41 - 56.850 Does it make any difference that Judge Braxton was that Braxton was a senior judge?

02:41 - 58.518 In my mind, it does.

02:41 - 01.521 And here's why.

02:42 - 03.690 He was a conflict judge.

02:42 - 08.561 The facts show that he was wrapping up his cases.

02:42 - 11.865 The facts demonstrate that he was also

02:42 - 14.968 assigned to judicial cases in Bucks County,

02:42 - 19.305 and he was also assigned to conflict cases in Carbon County.

02:42 - 23.443 I believe it was here when he was appointed.

02:42 - 25.812 And there is

02:42 - 29.549 no facts showing exactly when he actually started serving.

02:42 - 31.651 So that's another whole ball of wax.

02:42 - 35.155 What is the term service mean?

02:42 - 37.824 But I'm going off on a tangent here.

02:42 - 40.527 I apologize.

02:42 - 43.797 He believed that he was authorized

02:42 - 47.133 to complete his conflict cases.

02:42 - 50.170 All the trials he disclosed right.

02:42 - 52.172 That he had this other position.

02:42 - 53.039 If you ask Chester

02:42 - 57.644 Upland School District, he disclosed if he disclosed that he was appointed.

02:42 - 58.278 Well, wait a minute.

02:42 - 01.548 He did not disclose that he was receiving payment.

02:43 - 05.485 Wait, can we can we stop there for a moment after

02:43 - 07.220 he disclosed

02:43 - 10.423 one might one might as apparently lower court

02:43 - 13.727 did take a different view of this disclosure

02:43 - 17.063 because on June 24,

02:43 - 18.965 the judge said

02:43 - 22.869 as soon as I leave here, I'm going to do that other post

02:43 - 26.840 and that's why I can't linger here, I'm going, etc., etc..

02:43 - 28.541 I'm going to be sitting in Philadelphia.

02:43 - 32.178 So that's that's talking about the future,

02:43 - 35.882 the clear implication being that I'm here now.

02:43 - 41.321 So actually, wouldn't you agree that the actually cuts in the other direction

02:43 - 45.925 so as to throw prospect off the trail

02:43 - 50.096 to believe that he was

02:43 - 54.267 still with the courts, so to speak, rather than sworn in and getting paid

02:43 - 58.271 by the board of whatever form of taxes or whatever it's called in Philadelphia.

02:43 - 58.838 Sure.

02:43 - 00.006 Your Honor, I believe that

02:44 - 03.243 that brings up a very good point with this whole procedural process,

02:44 - 07.947 is that I don't presume that a judge is not being dishonest.

02:44 - 11.017 I presume that the judge

02:44 - 14.688 should be afforded a presumption that his actions

02:44 - 17.757 and his will, if you will, are

02:44 - 20.026 to the good of the people or to the good of the bench.

02:44 - 23.029 Right. For the security of the bench.

02:44 - 27.434 There are no facts where he in other words, he did testify.

02:44 - 28.868 The remand hearing.

02:44 - 32.739 There are no facts, evidence that he had any ill will whatsoever.

02:44 - 36.042 Prospect does not allege that there was

02:44 - 40.146 what he did say was that, yes, he was going to serve.

02:44 - 43.350 What did not come out until the remand hearing

02:44 - 47.153 was that he had already been paid when.

02:44 - 49.189 He actually began serving.

02:44 - 51.057 We don't have a concrete date.

02:44 - 54.361 So it goes back to that sunny word, if you will.

02:44 - 56.863 You know, what's the definition of service?

02:44 - 01.868 But that just goes to the point of the problem with this.

02:45 - 06.573 The the way this procedure occurred.

02:45 - 10.210 I guess I guess it's

02:45 - 11.311 I think there's a difference

02:45 - 14.814 between deciding assuming the court has the jury.

02:45 - 16.082 I think the Commonwealth Court

02:45 - 20.053 could have the jurisdiction to decide whether there was a Section 17 violation.

02:45 - 22.155 And I

02:45 - 24.858 the question is, if they do decide that there's a Section

02:45 - 29.462 1717 violation, can they do can the court do what it did

02:45 - 33.099 here is say he forfeited his office

02:45 - 37.037 when and that's what I'm that's what I think is really the nub of this

02:45 - 40.040 is is there is there anything

02:45 - 43.443 our constitution in article five

02:45 - 48.548 that provides for the forfeiture of office for 17 a violation

02:45 - 53.353 other than section 18 and going through the due process

02:45 - 56.489 that a judge is entitled to have through the judicial conduct

02:45 - 59.859 by the court of judicial discipline appealed to this court.

02:45 - 01.061 I agree with Your Honor.

02:46 - 04.931 That was a question That wasn't the question is this okay, I'm going to

02:46 - 08.334 I know it was a long one, but still it was a question.

02:46 - 11.104 I agree with your first part, that that is the nub.

02:46 - 13.973 In other words, it's the remedy for 17.

02:46 - 19.446 So is there is there another process other than section 18

02:46 - 23.883 for another process that ensures the judges due process

02:46 - 28.321 for the removal of a jurist, for a violation of Section 17,

02:46 - 31.791 even assuming the Commonwealth Court could say he violated Section 73?

02:46 - 33.927 Of course I understand, Your Honor.

02:46 - 35.662 No, there isn't.

02:46 - 39.232 There's So actually, let me step back just a little bit.

02:46 - 45.271 There is when bias, partiality or ill will are demonstrated,

02:46 - 49.309 Commonwealth Court can always void orders under that's scenario.

02:46 - 53.713 But but that's not forfeiting judicial office that's that's conflict

02:46 - 58.418 that's recusal that's code of judicial conduct type of stuff in.

02:46 - 02.022 The terms of in the terms of disqualification on

02:47 - 05.358 the incompatibility that he had, he had some partial bias or ill will.

02:47 - 07.394 There's nothing like that here.

02:47 - 10.730 This is at least that's not what's being alleged has been alleged at all.

02:47 - 14.734 This is purely he violated Section 17 A

02:47 - 19.039 the Commonwealth Court says we agree with you, He violated Section.

02:47 - 20.140 The question we

02:47 - 24.277 that I feel is before us is, okay, then what

02:47 - 27.747 could the Commonwealth Court do What it did,

02:47 - 31.084 which said he automatically forfeited his office

02:47 - 35.555 when under Article 15, Section eight, Article five, section 18.

02:47 - 39.092 That only can happen or least it says it happens there

02:47 - 42.295 after a court of judicial discipline proceeding.

02:47 - 43.496 You're correct, Your Honor.

02:47 - 46.866 There is no other mechanism for forfeiture,

02:47 - 51.137 especially automatic four for 17, a violation Judicial Office

02:47 - 54.607 Section 17 only lists prohibited activities.

02:47 - 57.711 And if I will submit

02:47 - 00.580 under the Commonwealth Court's decision, Judge

02:48 - 04.484 Braxton forfeited his office on June 16th, 2019.

02:48 - 06.519 What about his other orders?

02:48 - 09.222 What happens to the order in Carbon County?

02:48 - 12.158 The Commonwealth Court's decision and procedure

02:48 - 15.528 and bright line rule does not account for that.

02:48 - 19.799 Is It is the voiding of orders only rewarded

02:48 - 25.505 to sophisticated litigants who knew to plead that for counsel.

02:48 - 28.241 They were the only litigants who appealed.

02:48 - 32.278 I mean, I think you have a problem maybe with the language

02:48 - 37.717 that the Commonwealth Court used here, but I just don't

02:48 - 38.618 how well,

02:48 - 42.288 who else would decide this issue on appeal?

02:48 - 45.291 These are the this particular case, the

02:48 - 51.398 The unhappy litigants went to the Commonwealth Court and said

02:48 - 54.000 this this judge violated

02:48 - 58.138 the Pennsylvania Constitution and we want relief.

02:48 - 02.509 I mean, didn't this judge didn't lose his pension, did he?

02:49 - 05.612 I mean, who Well, that of where

02:49 - 09.849 where are his due process rights implicated at all?

02:49 - 12.919 The entire purpose of this appeal was to give relief

02:49 - 15.922 to the people who appealed the decision.

02:49 - 16.856 Yeah, they weren't.

02:49 - 22.729 They weren't he wasn't forfeiting his judicial office as a whole.

02:49 - 26.666 The orders were void correct, Your Honor.

02:49 - 27.500 In this case.

02:49 - 30.103 In this case, you're correct. Yes.

02:49 - 34.240 And so if they would have said for purposes of this appeal,

02:49 - 37.344 this jurist

02:49 - 38.978 couldn't decide the case

02:49 - 41.848 because he'd taken another job

02:49 - 45.018 before his order is void, didn't use the word forfeiture.

02:49 - 50.290 He didn't do anything just purely and simply this appeal would still be here.

02:49 - 51.224 I would, Your Honor.

02:49 - 52.192 And why?

02:49 - 57.497 Because the Commonwealth Court Well, it depends on what the reasoning is for void,

02:49 - 00.500 because he because he took a job

02:50 - 04.337 that was incompatible with hearing that case.

02:50 - 08.007 And I'm going to go back to Incompatible then, based upon what you just said.

02:50 - 13.680 Justice Donohue So nowhere in this to our Constitution does it say

02:50 - 16.683 it's constitutionally incompatible

02:50 - 19.185 for these two offices.

02:50 - 22.222 It does say that they are prohibited activities.

02:50 - 26.026 And I would go back to another example, the bribery example

02:50 - 30.497 or sexually or excuse me, racial discrimination.

02:50 - 34.000 A judge violates Section 17,

02:50 - 38.204 violates our Pennsylvania Constitution, Section 17.

02:50 - 41.474 If they take a bribe, suppose they take suppose I'm

02:50 - 42.842 just being devil's advocate here.

02:50 - 44.511 Suppose the judge, trial judge

02:50 - 49.382 takes a bribe in a divorce case, an equitable distribution case.

02:50 - 53.319 The facts don't come to light until five years later.

02:50 - 55.422 Under the Commonwealth Court's ruling

02:50 - 00.260 that Judge his or her office at the time the bribe was taken.

02:51 - 03.263 Does that mean all of the judge's orders

02:51 - 06.766 for five years in criminal case there was timely appeal.

02:51 - 07.567 There was, yeah.

02:51 - 09.936 These people made a timely appeal.

02:51 - 13.907 But if new facts come to light, can't you always bring that up?

02:51 - 18.511 If there was bias for a judge I mean, but that's not the case we have here.

02:51 - 22.582 Again, are you saying that there can be no remedy

02:51 - 26.853 on an appeal from an individual case based upon

02:51 - 31.224 violation of Article one section, whatever they said? 17.

02:51 - 33.193 No, you're on Article 517.

02:51 - 34.928 No, Your Honor, that's not what I'm saying.

02:51 - 39.165 We're going is that that the losing litigant

02:51 - 44.604 has to show partiality or ill will or bias on the part of the judge.

02:51 - 50.443 Totally different, a totally different species of claim.

02:51 - 53.279 And so it's not this case.

02:51 - 56.850 The question I take it is how

02:51 - 01.187 how do you square your position with the fact that we have a remedies clause?

02:52 - 06.159 I mean, there's a if there's a violation here, presumably there must be a remedy.

02:52 - 10.597 And to simply say complain to the JCB

02:52 - 13.299 is not a remedy for this litigant.

02:52 - 17.670 So I don't see what your how your position squares with the the remedies.

02:52 - 23.009 There's a presumption because just because there was a violation of Section 17

02:52 - 28.014 does not mean that it affected this case, other than that the litigant lost.

02:52 - 31.584 Just because there's a violation of section 17

02:52 - 34.421 does not mean that it affects this case.

02:52 - 38.191 That's why I keep going back to the partiality, the bias.

02:52 - 40.593 In other words, that always comes to play.

02:52 - 44.364 You're saying section 17 eight does not create a right of any individual litigant.

02:52 - 50.236 It's a restriction on a judge, and a litigant does not have a right to.

02:52 - 52.372 You're basically raising a standing argument.

02:52 - 55.308 A litigant does not have a right

02:52 - 57.677 unless the judge has been removed.

02:52 - 58.712 Then, of course, the litigant

02:52 - 03.049 can't have a case in front of a judge that's been that's forfeited office.

02:53 - 06.119 I think I think a litigant always has a right to appeal.

02:53 - 08.988 It's what's the remedy? Right. So I think there is none.

02:53 - 10.690 You're saying there's no remedy?

02:53 - 13.259 I'm saying that it doesn't affect the case.

02:53 - 15.161 Then you no harm remedy.

02:53 - 17.731 What I'm saying is that there's no

02:53 - 21.234 because the Commonwealth Court found structural error.

02:53 - 25.171 But before they get to structural error, they have to take away Judge Braxton's

02:53 - 28.241 judicial authority in order to get to structural error,

02:53 - 30.977 which means there's no harmless error analysis.

02:53 - 32.879 I'm saying there is a remedy,

02:53 - 36.449 but we have to go through that harmless, harmless error analysis.

02:53 - 38.118 But are you saying there's a right?

02:53 - 41.287 I guess that's my question is what is the right

02:53 - 43.523 you're we're talking about remedy.

02:53 - 45.458 They have a remedy.

02:53 - 51.097 Are you conceding that section 17 A

02:53 - 54.768 which is a prohibited activities of judge is not incompatible office

02:53 - 59.739 prohibited activities creates a right for litigants

02:53 - 02.175 such that if there is a violation is 17

02:54 - 06.279 a litigant is entitled to a remedy.

02:54 - 07.213 I haven't seen one.

02:54 - 10.216 Or is it a general right of the public

02:54 - 12.652 that 1780 creates?

02:54 - 17.057 I think it's more of a general right of the public

02:54 - 20.060 in that this court on the court of judicial

02:54 - 23.663 discipline,

02:54 - 25.498 the whole interest as a whole.

02:54 - 30.036 And this is when our Constitution was changed and section 18 was added

02:54 - 34.040 was obviously to protect integrity of the courts

02:54 - 35.775 in the eyes of the public. Right.

02:54 - 39.913 So, I mean, we all know why these rules are prohibited activities.

02:54 - 43.983 So there's appearance of bias. And so

02:54 - 44.617 we suppose

02:54 - 48.154 you owned a piece of land and you sued somebody

02:54 - 51.024 for damaging your land

02:54 - 54.894 and you your case went forward in front of a judge.

02:54 - 00.200 And the judge says during the the

02:55 - 03.269 charge conference or earlier motion limiting conference,

02:55 - 06.539 by the way, I'm going to be taking a job with a law firm.

02:55 - 09.776 So I've got to get this done because I'm going to be going to Philadelphia

02:55 - 11.378 and taking the job of the law firm.

02:55 - 14.814 And then you find out actually, he had already been

02:55 - 18.985 drawing salary from this law firm and practicing law

02:55 - 21.788 would not have a right to appeal that

02:55 - 24.791 judge's decision in your case.

02:55 - 26.559 I think the litigant would.

02:55 - 29.329 But I still go back to harm.

02:55 - 31.631 And in other words, where's the bias?

02:55 - 32.899 Where's the partiality?

02:55 - 36.970 I, I, I'm not saying that the facts are on my side.

02:55 - 39.039 They're obviously not

02:55 - 39.806 the facts.

02:55 - 42.776 It doesn't sound good. It doesn't feel good.

02:55 - 46.079 But what I'm saying is that there are

02:55 - 49.149 and the only thing I can do is equate it to bribery

02:55 - 50.750 because that's a horrible thing. Right.

02:55 - 52.552 That's even worse.

02:55 - 55.655 You know, I don't think Judge Braxton meant to do anything horrible here.

02:55 - 57.123 I truly believe that he

02:55 - 00.393 we don't need to talk about it, whether He's evil or great, right?

02:56 - 02.429 Wonderful. It nothing to do with that.

02:56 - 04.364 It's not a conduct proceeding.

02:56 - 06.900 I guess you're saying that that

02:56 - 10.403 that to show bias or partiality

02:56 - 13.940 is somehow worse than a situation

02:56 - 17.110 where the judge had no entitlement to be

02:56 - 20.113 the judge to begin? Yes.

02:56 - 23.883 And he did have in other words, the Commonwealth Court actually took away

02:56 - 25.251 his judicial authority.

02:56 - 26.820 That's what the Commonwealth Court did.

02:56 - 28.288 That's what they said.

02:56 - 33.026 Judge Braxton, you did not have a authority, judicial authority,

02:56 - 36.363 to enter into these orders when you sign them.

02:56 - 40.767 Counsel, why would you not thinks Section 17 is self-executing?

02:56 - 43.002 Because no, it doesn't expressly say that.

02:56 - 50.076 Why would Section 18 provide for automatic forfeiture if everything on 17

02:56 - 51.244 excuse me,

02:56 - 54.447 if every violation of every prohibited activity

02:56 - 58.451 under section 17 equates to an forfeiture.

02:56 - 01.755 And that goes back to my, you know, bribery

02:57 - 04.057 example, if you will,

02:57 - 08.128 Section 18 expressly provides for when

02:57 - 12.399 a judicial officer automatically forfeits his or her judicial office.

02:57 - 14.134 So could you go back to a question

02:57 - 17.137 I asked a little while ago that I don't believe you

02:57 - 19.572 in your preparation of this case,

02:57 - 22.809 did you conclude

02:57 - 26.479 that his senior judge status

02:57 - 30.316 was no different than full time judge status

02:57 - 33.386 or that it was irrelevant?

02:57 - 35.188 I don't think it's irrelevant.

02:57 - 40.026 It's certainly what what we argued before the Commonwealth Court.

02:57 - 42.729 I've done a little more research since then.

02:57 - 47.500 I do think it's different and there's two reasons why.

02:57 - 48.868 I don't know if it makes a difference.

02:57 - 50.704 Your Honor will tell me if it makes a difference.

02:57 - 54.708 But the first is the constitutional

02:57 - 55.408 apologies.

02:57 - 58.144 I don't it in front of me. I don't want to flip papers.

02:57 - 01.247 The Constitution says judges shall devote

02:58 - 05.752 their full efforts full time or full efforts.

02:58 - 09.289 And I can understand that from, you know, judicial perspective.

02:58 - 10.557 And a judicial management

02:58 - 14.594 perspective sounds a lot like a commission judge, not a senior judge.

02:58 - 16.062 It does, Your Honor.

02:58 - 20.934 And again, Judge, cracks in this case was literally wrapping up his cases.

02:58 - 24.938 We had gone through 28 days of trial excuse me, 24 days of

02:58 - 30.777 there are four days of trial that occurred after Judge Braxton alleged

02:58 - 35.015 or purportedly under the Commonwealth court's decision, forfeited his office.

02:58 - 35.849 What happens?

02:58 - 39.152 There's four days of testimony and evidence taken.

02:58 - 41.755 That's just one practical aspect of it.

02:58 - 43.857 But, well, I'm I'm asking

02:58 - 47.427 not so much about the practical aspect, but about the application.

02:58 - 49.929 Is this the correct application?

02:58 - 53.767 Did the Commonwealth take the correct remedial action

02:58 - 56.803 given that he was not a full time judge?

02:58 - 02.942 I believe the Commonwealth Court understood and held that

02:59 - 03.276 that it

02:59 - 06.312 didn't it didn't matter that he was part time or full time.

02:59 - 09.182 Correct. I'm asking you, I think it matters.

02:59 - 12.819 I think he you know, and the rules have changed

02:59 - 16.222 in the few years when Judge Braxton was working.

02:59 - 18.191 He only got paid for those days.

02:59 - 19.159 And I don't know if it matters,

02:59 - 22.162 but he only got paid for those days where he was on the bench on the record.

02:59 - 24.664 He didn't get paid for reviewing our volume.

02:59 - 29.602 Very voluminous findings of fact, proposed findings of fact, conclusions of law.

02:59 - 31.671 And he didn't get paid for making a decision.

02:59 - 34.441 He only got paid again, I don't know if it matters,

02:59 - 38.745 but when you look at the time that we finished the trials in this matter

02:59 - 44.551 to the and then we submitted our briefs, we took a few months.

02:59 - 47.620 I believe he worked six days until his date of retirement.

02:59 - 50.390 Well, you're tired, it seems your.

02:59 - 51.424 Pardon me? I'm sorry.

02:59 - 55.862 It seems like you're arguing here a matter of degree. And.

02:59 - 00.667 And the Constitution Section 17 speaks to an office, quote,

03:00 - 02.969 Hold an office or position of profit

03:00 - 06.639 in the government of the United States, the Commonwealth or any, etc..

03:00 - 10.610 And I think it's it's been well settled.

03:00 - 14.080 Debt includes drawing pay from the commonwealth.

03:00 - 18.118 So you have this statement by the judge

03:00 - 21.921 in June of 2019

03:00 - 23.623 making

03:00 - 26.026 making it plain to people that

03:00 - 28.094 that he's going to be doing this

03:00 - 31.931 and that then all the way until March of 2020.

03:00 - 36.036 As I understand it, there's no disclosure

03:00 - 39.806 that in fact he's been taking pay nothing illegal.

03:00 - 44.210 I'm not suggesting that I'm. But

03:00 - 47.280 to suggest that that

03:00 - 51.584 there's a degree issue here because you're senior, you're not active

03:00 - 55.855 or because you're only being paid for X number of days versus Y number of days,

03:00 - 59.359 why is that a difference of constitutional consequence?

03:00 - 03.329 And before you answer, could I just add on to that question,

03:01 - 07.167 if you would focus on that Section 17, a language

03:01 - 11.905 that says judges shall devote their full time to their judicial duties,

03:01 - 15.041 I mean, maybe maybe that means if you're handling a case,

03:01 - 18.278 you devote your full time to that case, but maybe it doesn't.

03:01 - 22.349 Maybe it means something else that would disqualify a senior judge

03:01 - 23.917 from the application of that provision.

03:01 - 26.853 Well, but I added to the chief's prior question

03:01 - 29.689 the language or holding office or position of profit.

03:01 - 37.330 So I'm not only focused on the truth, it's on

03:01 - 39.599 there's a loaded question questions.

03:01 - 43.903 I think I understand what your honors are both saying.

03:01 - 47.273 Well, we might be saying the same thing

03:01 - 51.745 that's going to be added on to this question exactly.

03:01 - 55.749 It's an I originally did argue, but there is a comma in there.

03:01 - 57.017 There is a comma.

03:01 - 01.821 Justices and judges shall devote full time to their judicial duties, comma

03:02 - 05.759 and shall not engage in the practice of law, hold office in a political party

03:02 - 08.728 or political organizations, or hold office,

03:02 - 12.999 hold an office of position, of profit, of the government of the United States,

03:02 - 14.367 in this case, municipal.

03:02 - 17.504 I don't need to read all of this is it's a state office

03:02 - 21.241 in a municipal office,

03:02 - 22.542 it starts out that

03:02 - 25.545 judges shall devote full time to their judicial duties.

03:02 - 28.481 This particular judge was was working part time.

03:02 - 31.751 He's a part time per diem judge, not saying it's okay

03:02 - 34.754 for him to have an outside job.

03:02 - 39.759 But what it is, is he was literally just finishing up these cases.

03:02 - 42.095 The Parties asked him.

03:02 - 45.598 He advised us that we had to finish the case.

03:02 - 51.938 And July we asked we asked him to elongate the deadlines.

03:02 - 55.041 He told us that he asked the Supreme Court

03:02 - 58.545 APC if he could finish up these conflict cases,

03:02 - 04.050 and he believed that he was authorized to finish these conflict cases.

03:03 - 07.253 This was based on a purported discussion with Joe

03:03 - 11.124 Middleman at ABC, and I, the woman's name.

03:03 - 12.325 There was two.

03:03 - 17.430 He discussed both of them, but he discussed it with both of them.

03:03 - 18.565 But all I'm here is

03:03 - 22.268 to argue what he understood to be

03:03 - 24.871 not what was or was not said.

03:03 - 25.672 We did not.

03:03 - 29.876 Chester Urban School District did not have an opportunity to discuss with Mr.

03:03 - 33.480 Middleman. We were never given

03:03 - 36.916 an opportunity to probe his statements.

03:03 - 39.686 So but I digress.

03:03 - 42.856 I think that it does make a difference that he was a part time

03:03 - 45.892 per diem judge wrapping up his cases.

03:03 - 48.228 The trials were complete and.

03:03 - 53.566 We were just he was just making his final decision based upon our submissions.

03:03 - 56.469 So you're saying there is no constitutional violation?

03:03 - 59.339 That's not what I'm saying, Your Honor, at all What I'm saying is,

03:03 - 03.276 does it make what difference do any of those qualifiers make?

03:04 - 07.747 I'm sort of lost because we don't know if it was a violation.

03:04 - 10.016 Doesn't violate Commonwealth Court intent.

03:04 - 11.117 I don't know.

03:04 - 15.088 I don't I'm I don't practice in the area of judicial discipline.

03:04 - 16.222 That's the Commonwealth.

03:04 - 19.059 That's not this case in the Commonwealth interpreted

03:04 - 22.896 the Constitution and found that there was a violation here.

03:04 - 25.799 I don't know why they can't make that finding.

03:04 - 28.768 There's a violation of the Constitution here.

03:04 - 30.270 I think they can make the finding.

03:04 - 31.538 I don't think that they can.

03:04 - 35.175 They can strip judge fraction of his authority, judicial authority.

03:04 - 36.676 That's the difference here.

03:04 - 40.013 I think they can make that finding and then they can decide

03:04 - 43.717 whether or not it impacted the litigants in this case.

03:04 - 46.019 How is that different?

03:04 - 46.786 How is that

03:04 - 50.156 different from an adjudication by a court

03:04 - 53.626 that there was an ultra vires act

03:04 - 56.696 by any person, a court, a court,

03:04 - 59.299 this this determination was that

03:04 - 02.068 there was a violation of the Constitution.

03:05 - 05.438 So I suppose you would maintain that

03:05 - 07.907 while the Court presumably is

03:05 - 12.212 is empowered to make a constitutional adjudication,

03:05 - 15.648 it is divested entirely of any power

03:05 - 22.589 to direct a remedy for that violation, which is striking, number one.

03:05 - 27.127 And number two, I would suggest that a court that finds an ultra virus

03:05 - 32.866 acting in any number of circumstances would be powerless to order a remedy.

03:05 - 36.536 All these qualifiers about, well, he was part time or well,

03:05 - 41.007 he made this semi disclosure or he didn't mean anything wrong by it.

03:05 - 42.275 We can grant you all that.

03:05 - 46.079 But those seem to be arguments that would be made to the Jacob.

03:05 - 49.449 Why not to prosecute, which is not what we're here about.

03:05 - 51.751 You want to respond to that? Yes, Your Honor.

03:05 - 56.289 So I agree with you that the Commonwealth Court and even a trial court

03:05 - 01.661 make a determination whether or not judicial officer violated Section 17

03:06 - 07.267 when I'm saying they cannot do is is create a bright line rule

03:06 - 09.035 that says that he automatically

03:06 - 13.173 forfeited his judicial office and he no longer has judicial authority

03:06 - 16.843 to enter into final orders or actually retroactively.

03:06 - 17.677 You're actually saying

03:06 - 21.881 that you're actually saying that the court can't retroactively invalidate

03:06 - 23.383 an otherwise fair

03:06 - 26.586 and impartial decision made by a judge because of a simple violation.

03:06 - 29.155 But let me give you an analysis that may help you out.

03:06 - 32.459 Every judge up here and every judge in the Commonwealth of Pennsylvania

03:06 - 35.395 is required to take C.J. Credits.

03:06 - 38.865 If a judge is non-compliant with his credit makes a decision.

03:06 - 42.369 Would you contend that that decision should be invalidated now?

03:06 - 43.470 I would not contend that.

03:06 - 45.739 And is that not the essence of argument,

03:06 - 49.175 that there was no harm, no foul in this case?

03:06 - 51.044 I'm sorry. Maybe I misunderstood you.

03:06 - 53.813 You thought you were just didn't understood them.

03:06 - 55.115 Okay. Right.

03:06 - 58.418 If you did not take if you did not take your required CGT,

03:06 - 00.453 then you automatically forfeit your office.

03:07 - 02.355 Is that what you're saying? Correct.

03:07 - 04.157 I would say that that's not the case.

03:07 - 06.693 And then you also agree with me that any decision made by

03:07 - 09.796 a judge was non-compliant wouldn't necessarily be subject

03:07 - 12.799 to a collateral attack because of the fact that it was simply non-compliant.

03:07 - 14.667 I would agree with that. Your Honor.

03:07 - 18.238 But because it's a concept, an alleged constitutional violation,

03:07 - 20.206 this was different. Is that correct?

03:07 - 21.474 That is not correct, Your Honor.

03:07 - 26.579 It is a constitutional let's submit that he did violate the Constitution.

03:07 - 28.314 So he violated the Constitution.

03:07 - 29.749 There's nothing in the Constitution

03:07 - 33.486 that gives a disappointed litigant the right to a re complete retrial

03:07 - 38.425 in the code of Judicial conduct is a constitutional code.

03:07 - 42.429 Article five empowers this court to create the code of judicial conduct.

03:07 - 46.499 So arguably, violation of the code rises at the violation of the Constitution.

03:07 - 48.301 It does, Your Honor. As a matter of fact, that's right.

03:07 - 54.007 In section 17, that is 17 B counsel Yes.

03:07 - 56.242 Okay. Sorry.

03:07 - 57.343 I have to share with you.

03:07 - 58.745 Your answers are confusing me.

03:07 - 01.047 What is your ask?

03:08 - 02.782 You're saying there's a violation?

03:08 - 05.652 Is are you saying yes is a constitutional violation?

03:08 - 07.487 But the order should stand, that is.

03:08 - 10.490 And let's forget about Commonwealth Court's

03:08 - 12.959 decision.

03:08 - 16.329 I am asking that the Commonwealth Court's ruling

03:08 - 20.100 that it's bright line rule that a judicial officer automatically forfeits

03:08 - 24.437 his judicial office upon a finding of of a Section

03:08 - 28.842 17 violation cannot stand that must be overturned

03:08 - 33.546 because that usurps this court and the court of judicial

03:08 - 39.052 disciplines exclusive authority to determine when a judicial officer

03:08 - 43.356 is no longer vested with judicial authority.

03:08 - 44.624 I hope that was clear.

03:08 - 45.558 All right.

03:08 - 47.727 Does anybody have any other questions?

03:08 - 48.194 Okay.

03:08 - 04.077 Let's hear from Mr..

03:09 - 06.112 Thank you, Madam Chief Justice, please.

03:09 - 10.850 The Court I am Robert Buyer and I represent the APPELLEE

03:09 - 16.990 Prospect Cruiser along with my co-counsel, Ryan Monahan.

03:09 - 19.259 The importance of

03:09 - 22.495 Article five, Section 17, a

03:09 - 27.100 as a constitutional value in Pennsylvania becomes manifest

03:09 - 32.539 when one realizes that this provision was not something that was added.

03:09 - 36.576 The 1968 constitution for the first time,

03:09 - 39.612 not even the 1874 constitution.

03:09 - 44.084 This provision has been in every pensilva in your Constitution

03:09 - 48.855 since the Constitution of 1776.

03:09 - 54.227 Now, with respect to the

03:09 - 56.763 the vintage of this provision,

03:09 - 59.199 it coexisted with a common law

03:09 - 02.268 doctrine that was recognized in cases.

03:10 - 02.702 And I think.

03:10 - 06.005 Justice Daugherty, you were alluding to this in referring

03:10 - 09.008 to the section is self-executing.

03:10 - 12.812 The case law had developed that when it comes down

03:10 - 17.150 to holding constitutionally

03:10 - 20.220 impermissible positions of this nature,

03:10 - 24.824 that taking the second position automatically forfeits

03:10 - 30.930 the first in Pennsylvania, the deter case from this court

03:10 - 32.665 in the late

03:10 - 36.536 1800s, it was in 1889 case so held,

03:10 - 42.242 and that was followed by Commonwealth X Real Pro versus Smith from 1940.

03:10 - 44.577 Fortunately, we don't have too many decisions

03:10 - 49.282 in this area because these problems do not arise all that frequently.

03:10 - 54.387 But these provisions are self-executing shooting and it means that taking in

03:10 - 59.259 in an incompatible position vacates the position that the person already had.

03:10 - 02.762 And in the words of the court in De Turk,

03:11 - 07.567 it's it's an implied resignation of the first position.

03:11 - 10.437 Mr. Buyer, though, did those those cases predated

03:11 - 13.707 the amendment to the Constitution in section 18?

03:11 - 18.378 Well, those cases predated Section 18, and this is what significant Section

03:11 - 23.983 18 was not added until the 1968 Constitution.

03:11 - 28.955 These provisions dealing with forfeiture for misconduct

03:11 - 34.728 or for filing nominating papers in Section 18

03:11 - 39.165 did not come into being until the 1968 Constitution.

03:11 - 46.573 So we had Section 17 existing in a common law background that it did not displace

03:11 - 49.843 at the same time as

03:11 - 50.910 these common law cases.

03:11 - 55.815 And then Section 18 comes along with the latest amendment in 1968,

03:11 - 00.020 it was revised again in 1993,

03:12 - 04.491 but it doesn't displace the common law doctrine,

03:12 - 09.796 doesn't displace the interpretation of incompatible positions

03:12 - 15.168 law under the Constitution, including Article six.

03:12 - 17.670 Mr. Beyer, back to Article 17.

03:12 - 20.073 A, could you?

03:12 - 22.242 Why? It does not matter

03:12 - 27.547 if the judge, devoting full time

03:12 - 31.017 to their devoting their full time to their judicial duties.

03:12 - 34.054 Does it matter if it's a senior judge or a commission judge?

03:12 - 38.091 Well, in terms of the first clause, I think it has be read in context

03:12 - 43.463 with the constitutional authorization of senior judges to take special assignments,

03:12 - 46.866 but it doesn't eliminate that senior judges

03:12 - 50.136 duty to comply with the rest of Section 17.

03:12 - 54.374 Otherwise, I mean, the logical consequence of that would be

03:12 - 58.211 that a senior judge could be serving as mayor or head of a political party.

03:12 - 02.549 That would be an untenable situation and something that clearly violates

03:13 - 05.719 the purpose of Article five, Section 17.

03:13 - 06.953 So It matters not.

03:13 - 09.556 It matters not that this is a senior judge and Mr.

03:13 - 16.329 Baker, opposing counsel maintain that, if I understood correctly, that

03:13 - 19.132 even even in the event of a violation,

03:13 - 23.870 the court is without authority to essentially do anything about it.

03:13 - 25.505 How do you react to that?

03:13 - 29.109 I think that the court has to have the power to hold

03:13 - 32.912 that will forget about the use of the term forfeiture.

03:13 - 37.717 I think Justice Donahue, you were right on on the mark

03:13 - 40.954 and justice work in talking about the consequence

03:13 - 44.924 of a violation of article section, Article five, section 17 A

03:13 - 50.196 is render void a judicial decision that's made by somebody

03:13 - 55.702 who is in violation of that provision of the Constitution because that person

03:13 - 00.040 simply that's an order that is not supposed to be entered by such a person.

03:14 - 03.376 But the forfeiture is for that case.

03:14 - 04.911 Or is it broad?

03:14 - 08.348 I think that it could only speak to that case

03:14 - 11.651 because that's all this go to the broad forfeiture.

03:14 - 15.555 Then you have to go over to the judicial conduct side, Correct.

03:14 - 17.891 That there's no way for the Judicial Conduct Board

03:14 - 22.328 or the court of judicial discipline to review an appeal?

03:14 - 23.530 No, there are two different things.

03:14 - 24.731 Exactly. Well, but Mr.

03:14 - 25.365 Barreto, I mean, I'm

03:14 - 30.236 going to I'm going to push back with you a little bit on this, because think

03:14 - 31.438 it seems

03:14 - 34.407 to me that what what the opposing counsel is arguing

03:14 - 39.946 is not that, you know, you can't raise this.

03:14 - 40.347 Okay.

03:14 - 45.885 So you're raising I appeal why he violated Section 17 of the Constitution.

03:14 - 46.386 Okay?

03:14 - 48.822 He violated Section 17 of the Constitution.

03:14 - 51.825 The Question then is how did that impact you?

03:14 - 57.330 What right did you have to a judge that was not violating section

03:14 - 01.368 17 A let some other provision of the code of judicial conduct?

03:15 - 05.238 Justice McCaffery said A judge who is compliant with CJT, he's

03:15 - 08.241 a judge, is filed a statement of financial interest,

03:15 - 13.046 a judge who didn't attend a political event the week of your trial.

03:15 - 17.217 Let's say a judge attended a Democratic Party event, the week of your trial

03:15 - 20.186 during, you know, not during a retention election.

03:15 - 23.556 Do you get to raise all those just blanket without showing a harm

03:15 - 25.225 and somehow get relief?

03:15 - 29.129 Well, I think that Judge Leavitt's opinion in the Commonwealth Court summed it up

03:15 - 34.000 well when the court said that a litigant has the right

03:15 - 40.540 to have an adjudication by a qualified, that somebody has to be qualified

03:15 - 46.046 and able to exercise judicial power in order to render a valid adjudication.

03:15 - 51.818 That seems to be a very basic due process, right, that any litigant has.

03:15 - 54.354 And by violating Article

03:15 - 00.393 five, section 17, A in light of the common law, that that involves a

03:16 - 05.432 an implied resignation of the judicial position.

03:16 - 07.901 And this is this is this is where the rubber the road.

03:16 - 08.568 Right. Yes.

03:16 - 11.971 Because that's when you get to 18

03:16 - 17.343 which even applying 18, even if you assume a 17 a violation

03:16 - 21.181 and under section 18, the jurist does not forfeit

03:16 - 25.518 judicial office for a violation of 1717

03:16 - 28.922 until they've been charged

03:16 - 33.360 and convicted, for lack of a better word, by the court of judicial discipline.

03:16 - 37.897 Well, that's dealing with the charge, with a charge against an individual jurist.

03:16 - 40.867 It doesn't go to the question of the validity of the order

03:16 - 42.769 entered by that jurist. I agree with you.

03:16 - 45.939 But your point is your your answer to the question was, Judge

03:16 - 50.009 Leavitt says you're entitled A you're entitled to have a decision by a jurist

03:16 - 53.613 that had judicial authority, did not forfeit, did not forfeit

03:16 - 56.649 the off and was validly exercising that authority at the time.

03:16 - 57.717 Correct.

03:16 - 02.856 Even even under Section seven, under Section 18,

03:17 - 07.660 everything a jurist could be violating Section 17, a

03:17 - 10.730 and go through the court, a judicial discipline process.

03:17 - 14.334 And the court judicial discipline says, yes, you're violating Section 17,

03:17 - 15.869 you forfeit your office.

03:17 - 21.041 It doesn't that's the data forfeit of office under under 18.

03:17 - 25.378 So Judge Leavitt basically added in order in order for you to win,

03:17 - 28.381 I think you have to say that the common law

03:17 - 33.086 survived the amendment of section 18 to the Constitution.

03:17 - 34.087 That's correct, Your Honor.

03:17 - 36.890 The common law does survive, and that is position.

03:17 - 38.925 Is it another way of looking at it, Mr. Buyer?

03:17 - 43.930 That that we're we're dealing here in two distinct paradigms

03:17 - 47.534 within the same article so that just like if,

03:17 - 52.238 if somebody hits me over the head with a club, I can sue them civilly

03:17 - 59.779 for assault and the Commonwealth can bring a court case against them for assault.

03:17 - 00.847 And these are

03:18 - 03.850 vindicating different interests.

03:18 - 08.254 So the interest of, the JCP in vindicating the public

03:18 - 12.525 with respect to the code of judicial conduct is one thing.

03:18 - 16.329 And the Article 17 issue

03:18 - 20.166 that's present in this case is an entirely different paradigm.

03:18 - 24.371 It's the civil justice paradigm in which you and your opponent

03:18 - 28.074 were engaged in litigating here,

03:18 - 30.076 that the hang up maybe in this case,

03:18 - 33.046 is this use of the term forfeiture or removal?

03:18 - 35.148 Well, that's my point. That's the beginning.

03:18 - 40.987 And the issue is, it seems to me, is rather was by virtue of section 70,

03:18 - 43.156 was this judge disempowered

03:18 - 47.494 or this or judicially this a constitutionally disabled

03:18 - 51.364 from exercising the judicial power is not the way to look at it

03:18 - 55.535 enshrines the order simply a void of an issue because of his stuff.

03:18 - 56.736 The order is void. Yes.

03:18 - 01.174 And this and this is I just like clarify one other thing here.

03:19 - 05.612 And in getting back to the message, ACB credits

03:19 - 08.214 head up of Political party.

03:19 - 12.452 There's no common law to analyze that situation.

03:19 - 15.655 And that's what really distinguishes what happened here.

03:19 - 20.727 There is a fulsome body of common law that establishes

03:19 - 25.965 if you take a job that's incompatible, you're resigning the first job.

03:19 - 29.569 So if the Commonwealth Court had used the term

03:19 - 30.303 this, the

03:19 - 34.340 senior jurist resigned from his senior jurist position

03:19 - 40.013 and therefore the orders that he entered after that resignation are void.

03:19 - 44.517 That's we wouldn't be talking about forfeiture in any way, shape or form.

03:19 - 48.121 This would be an application of the common law

03:19 - 52.325 to a situation that's come up for centuries in this Commonwealth.

03:19 - 54.527 That is precisely right, Your Honor.

03:19 - 57.764 It's The term forfeiture that I would not get hung up on that.

03:19 - 03.803 It's the consequence of what the violation of Section 17 was in this case.

03:20 - 06.573 Well, I mean, that's that's that's a way to get around it.

03:20 - 07.707 Big, I guess.

03:20 - 11.211 I mean, because, again, the problem is if you stick with the forfeiture

03:20 - 14.280 paradigm, then then it diverts

03:20 - 18.651 a finding by the Commonwealth Court that he forfeited office,

03:20 - 21.388 preempts the court of judicial discipline.

03:20 - 24.391 The so-called criminal process was quasi criminal prosecution.

03:20 - 29.696 The judge has already been found guilty of violating Section 17

03:20 - 32.732 without the process that he was entitled to under the Constitution.

03:20 - 37.704 I think the term forfeiture was as used in Judge Leavitt's opinion,

03:20 - 41.007 is a shorthand way of saying that

03:20 - 44.077 he did not have the right to exercise judicial authority

03:20 - 47.480 because his violation of Article five, Section 17,

03:20 - 51.117 because he resigned that position when he took the job with the Philadelphia

03:20 - 51.718 Tax board.

03:20 - 55.088 As a matter of law, he is held to have resigned his position.

03:20 - 58.692 He because he could not wear both hats at the same time.

03:20 - 02.729 And it's having taken that second job.

03:21 - 04.731 The first one is going.

03:21 - 06.599 And so I agree with that.

03:21 - 11.705 And and the consequence of invalidation of an order under those circumstances

03:21 - 15.875 is similar to a number of other cases

03:21 - 19.779 in the Wen case, for example, in the United States Supreme Court,

03:21 - 23.183 where you had a judge serving without commission

03:21 - 26.186 as of a three judge panel in the ninth Circuit

03:21 - 28.788 and the US Supreme Court said that's a structural error.

03:21 - 31.591 The decisions cannot stand from that panel.

03:21 - 35.295 Counsel Do I understand your response to Justice Donoghue

03:21 - 40.734 being that Judge Braxton de facto resigned his judicial position

03:21 - 44.237 by accepting the board of revision into AX If you call it, you can call it

03:21 - 48.375 de facto resigned or in the case law, it's an implicit resignation.

03:21 - 53.279 But by accepting the second position with the board of revision of taxes

03:21 - 59.019 that he resigns his commission as a judge similar to what this court held

03:21 - 03.990 in Simmons versus Tucker in 1971, where the court indicated that

03:22 - 08.161 if Judge McCune in that case had taken his oath,

03:22 - 10.964 he would have resigned as a

03:22 - 15.535 as a judge of the of Common Pleas

03:22 - 16.102 at a date

03:22 - 20.173 prior to the date that the state had determined

03:22 - 23.043 that there he had not taken his oath here, Judge

03:22 - 27.714 Braxton had to have taken an oath because he was getting his paycheck.

03:22 - 30.116 So, Counsel,

03:22 - 34.754 is that your recommendation or request remain this back?

03:22 - 38.892 Our request is that the Commonwealth Court decision be affirmed

03:22 - 43.496 and then the Commonwealth Court, as of that, the Commonwealth Court

03:22 - 47.967 has remanded for further consideration in the trial court.

03:22 - 51.304 And this this decision doesn't affect

03:22 - 55.175 any other case that senior chides

03:22 - 58.745 the senior judge in this case adjudicated

03:22 - 00.447 not involving other parties.

03:23 - 05.652 No, there there there are three, but I meant that really as a matter of law,

03:23 - 09.422 unless somebody appealed on this issue, those cases are done in fairness.

03:23 - 10.590 That's correct, Your Honor.

03:23 - 12.592 Which is interesting because I was thinking

03:23 - 16.629 about the structural error issue here, which we didn't really talk about.

03:23 - 21.067 You know, in the Luzerne County juvenile Justice scandal

03:23 - 23.403 that opened all, you know, all the cases.

03:23 - 26.206 So this is not that.

03:23 - 27.374 I guess you're saying

03:23 - 32.912 it would not be that it's structural, it would not open it necessarily.

03:23 - 35.882 But I think you'd have to see what the allegations are.

03:23 - 40.720 And that was a Jacob's CJD determination that ended up opening up

03:23 - 46.359 all the cases, not case brought by a party and a separate Supreme Court order.

03:23 - 49.763 And we were dealing with criminal cases involving juveniles there.

03:23 - 52.632 And I only sort of the chief is right.

03:23 - 53.767 I just sort of

03:23 - 55.468 was spinning through that a little in my mind

03:23 - 58.438 because of the structural error issue in this case.

03:23 - 01.174 Do we have to call it a structural error?

03:24 - 01.841 Don't We can't.

03:24 - 03.743 We just say,

03:24 - 06.479 assuming, you know, we agree ultimately with

03:24 - 11.251 what happened here, can't we just say, given the resignation and the position

03:24 - 12.419 as judge,

03:24 - 15.422 he was out authority to enter the order period?

03:24 - 20.694 You could mean does it really fit into this structural error paradigm?

03:24 - 23.797 Is generally use that I think it does.

03:24 - 28.068 I can't think of a more fundamental structural error than having somebody

03:24 - 30.937 sitting as a judge who is implicitly resigned.

03:24 - 33.773 The position counsel, if we call it a structural

03:24 - 37.644 or how can we not invalidate every order he issued since he accepted the position

03:24 - 39.512 with the BRT? That's the point.

03:24 - 41.514 If it's a structural error,

03:24 - 45.185 you're basically saying that every single order that Judge Braxton

03:24 - 50.123 executed after the point he took the BRT appointment needs to be invalidated.

03:24 - 53.026 Well, it would be a we can we can debate the siege

03:24 - 54.894 and we can debate the court or judicial discipline.

03:24 - 56.763 But where the Supreme Court of Pennsylvania,

03:24 - 01.000 if we're declaring this to be a structural error, then we have to, by law,

03:25 - 03.002 every decision and every order he executes,

03:25 - 07.440 I think it litigant has to have filed a timely appeal to take advantage of that

03:25 - 09.943 unless it comes through the ICJ.

03:25 - 10.243 Right.

03:25 - 14.147 Because CJD can do that or the Supreme Court could do that.

03:25 - 17.550 But we will do it as a result of

03:25 - 21.087 disciplinary proceedings below, not in a particular.

03:25 - 23.323 There weren't a lot the Judge Braxton was finishing up.

03:25 - 25.025 There weren't a lot of orders.

03:25 - 29.329 This was this the only case he had left at the time he took the job?

03:25 - 31.798 I think these were only cases in Delaware County.

03:25 - 33.733 I think there was a case in Carbon County

03:25 - 37.237 that somebody has referred to in the record.

03:25 - 39.773 Those are the only two that I'm aware of.

03:25 - 42.242 So we're not talking about a situation

03:25 - 46.012 even anywhere akin to what happened in Luzerne County.

03:25 - 47.113 Do you want to wrap up, Mr.

03:25 - 48.615 Barr, or perhaps you already have?

03:25 - 50.116 I think I, Your Honor.

03:25 - 52.619 So we request that the judgment be affirmed.

03:25 - 57.524 Thank you. Thank you both. Well argued.

03:25 - 58.124 The fifth

03:25 - 02.262 case to be argued today is entitled Circle of Seasons

03:26 - 06.132 Charter School against Northwestern Lehigh School District,

03:26 - 10.403 and it involves tax assessment appeal.

03:26 - 13.473 The case is before the Pennsylvania Supreme Court

03:26 - 18.078 on allowance of appeal to the Pennsylvania court

03:26 - 20.547 in 27 and 2018,

03:26 - 24.351 Lehigh County charged property taxes to a charter school

03:26 - 27.887 which the charter school paid in 2019.

03:26 - 31.391 However, the charter school received a tax exemption

03:26 - 34.627 for the property subject to taxation.

03:26 - 38.932 The charter school then filed a lawsuit against the school district

03:26 - 43.336 in the Court of Common Pleas, the trial court seeking reimbursement

03:26 - 47.874 for the 2017 and 20 taxes that it paid.

03:26 - 51.144 The trial court dismissed the charter schools lawsuit

03:26 - 54.581 holding that it should have challenged the tax before the County Board

03:26 - 01.087 of Assessment Appeals and not by filing an action in the Court of Common Pleas.

03:27 - 04.524 The charter school appealed to the Pennsylvania Commonwealth Court,

03:27 - 08.161 which held that the trial court was largely correct,

03:27 - 11.831 but it remanded or sent the case back to the trial court

03:27 - 16.569 for it to transfer the charter schools Tax Assessment challenge

03:27 - 20.440 to the County Board of Assessment Appeals.

03:27 - 23.143 The school district then successfully sought

03:27 - 26.146 allowance of appeal in the Supreme Court.

03:27 - 31.017 On appeal, the school district argues that the charter school had notice

03:27 - 34.020 of the tax levy and its right to appeal

03:27 - 37.357 and that it failed to timely do so.

03:27 - 40.894 The school district argues that the charter school could have sought

03:27 - 45.198 a tax exempt determination from the Board of Appeals,

03:27 - 48.968 and it could not avoid its obligation to do so

03:27 - 54.441 by filing a lawsuit that was untimely in the trial court.

03:27 - 54.941 The school

03:27 - 58.778 district also argues that the charter school cannot obtain

03:27 - 04.250 what is called the Nunc pro tunc relief, which sometimes excuses untimely filings

03:28 - 08.988 because the charter school actually paid the taxes, did not seek a refund,

03:28 - 12.125 did not challenge the taxing designation

03:28 - 16.930 and did not raise this issue in the trial court

03:28 - 18.431 before the Supreme Court,

03:28 - 21.701 the charter school asks for the Commonwealth Court's decision

03:28 - 26.039 to be affirmed regarding its payment of the taxes

03:28 - 29.943 and failure to file an appeal with the Board of Assessment Appeals.

03:28 - 33.213 The charter school argues that the notices of taxation

03:28 - 38.485 that it received in 2017 and 2018 were defective because they did not

03:28 - 44.858 contain the mailing date of the notices, which affects its ability to appeal

03:28 - 46.926 the charter school points out

03:28 - 52.732 that before 2017, the property on which it operated was tax exempt

03:28 - 56.836 and its re designation as a taxable property by the county taxing

03:28 - 58.438 authority was void

03:28 - 02.008 and that the Supreme Court could affirm the Commonwealth Court's decision on

03:29 - 04.611 this basis.

03:29 - 05.245 Chief Justice.

03:29 - 06.379 Thank you, Justices.

03:29 - 06.646 Thank you.

03:29 - 07.914 May it please the court.

03:29 - 11.217 Jonathan Werth On behalf of the Northwestern Lehigh School District.

03:29 - 11.951 This case

03:29 - 15.488 is a case involving a charter school that just wants the rules not to apply.

03:29 - 19.426 They've ignored a change in assessment, tax bills, reminder notices

03:29 - 23.997 and blue by statutory deadlines and are now coming back to the school

03:29 - 27.467 district to ask for the school district which this court has ruled.

03:29 - 28.802 School districts are

03:29 - 32.105 under funded by the state to come up with a quarter of $1,000,000

03:29 - 34.507 to refund them for taxes that they paid

03:29 - 38.812 the court correctly ruled that the failure to exhaust its administrative remedies

03:29 - 41.247 by filing an appeal before the Board of Assessment

03:29 - 43.717 thereby waived subject matter jurisdiction.

03:29 - 47.887 The Commonwealth court aired by going a different way.

03:29 - 52.359 What the Commonwealth Court did correctly, though, is that they ruled they

03:29 - 53.493 in line with the case law.

03:29 - 55.395 They ruled that it's clear that the statutory remedy

03:29 - 59.032 to appeal to the Board of Assessment is the mandatory and exclusive remedy.

03:29 - 02.102 Commonwealth Court agreed with that and so they dismissed

03:30 - 06.706 so-called season's tax refund law claims that should have ended the question right.

03:30 - 10.276 This court has already ruled in Lincoln, which has also been followed

03:30 - 12.512 by the Commonwealth Court and Locus and Lutes

03:30 - 16.016 that counsel Can I just you down for a little bit?

03:30 - 18.051 Okay.

03:30 - 20.820 This is a case that started this case we're talking about.

03:30 - 24.357 This one right here started when the charter school filed

03:30 - 29.229 a refund action under the refund law in the court of Common Pleas.

03:30 - 30.597 Correct this year.

03:30 - 33.500 And the issue was the refund

03:30 - 36.736 law requires powers, allows you to seek a refund

03:30 - 39.739 for a tax that has been unlawfully corrected or attacked.

03:30 - 40.006 It's good.

03:30 - 42.809 The language is a tax to which the municipality is not entitled to.

03:30 - 45.078 Correct? Correct. Right.

03:30 - 48.281 The problem here, at least as you raised with the Common Pleas court in the Common

03:30 - 53.086 Pleas, court accepted, is for the years that they were seeking

03:30 - 56.956 the assessment which the tax was based,

03:30 - 00.627 was not challenged, was not changed, correct?

03:31 - 01.294 Yes, sir.

03:31 - 06.633 And you said we haven't been adjudicated not to have properly collected the tax.

03:31 - 09.169 Therefore, you're not entitled to a refund.

03:31 - 13.273 The charter school tries to say, but the assessment is wrong.

03:31 - 16.443 Trial says, No, no, no, no, no.

03:31 - 18.511 Your refund claim is gone.

03:31 - 21.548 If you want to challenge the assessment and then get a refund,

03:31 - 24.851 go through the county Board of Assessment and we're right so far this year.

03:31 - 27.721 Okay, you go. They go to Commonwealth Court.

03:31 - 32.459 Commonwealth Court says trial court got it completely right, 100% right.

03:31 - 37.097 But the Commonwealth court then nonetheless affirmed but reaffirmed

03:31 - 41.601 the dismissal but remanded with direction that they transfer the refund.

03:31 - 45.438 That claim to the Board of Assessment Appeals.

03:31 - 46.706 Am I still there?

03:31 - 48.108 That's not how I read it, Your Honor.

03:31 - 53.146 I read that they they dismiss the tax refund law claims, and instead use

03:31 - 54.381 the doctrine of Nunc pro

03:31 - 58.184 tunc to essentially argue that there was a breakdown in the administrative process

03:31 - 01.688 at the Board of Assessment because of an alleged fake

03:32 - 03.857 facial defect on the notices

03:32 - 07.460 and because of that, that that under the statutory general concept

03:32 - 10.463 that both the general assessment law and the consolidated accounting assessment

03:32 - 13.933 law that reopened the window because believe it's 8845.

03:32 - 17.570 But the way they effected that was a transfer directive, correct?

03:32 - 21.441 Transfer as if it had been filed, as if the refund action had been filed

03:32 - 23.877 in the wrong tribunal. That's correct, Your Honor. Right.

03:32 - 26.212 That's mechanically how it happened, sir.

03:32 - 28.114 That's the part I wanted to focus on.

03:32 - 32.986 Real quickly, how can you transfer an act under the refund act?

03:32 - 36.423 How is that how is that filed in the wrong tribunal?

03:32 - 37.857 I don't think you can.

03:32 - 42.095 And I think the Commonwealth Court, what they did was transfer

03:32 - 46.366 I think they re characterized the claim as not a tax refund act,

03:32 - 49.035 but a challenge of an assessment challenge and assessment appeal.

03:32 - 51.838 And they then transferred an assessment appeal

03:32 - 55.175 that Circle seasons never filed back to the board of assessment.

03:32 - 57.877 I don't I agree. I do not think you can transfer

03:32 - 00.714 a tax refund law matter to the Board of assessment.

03:33 - 05.218 Frankly, the very language in the tax refund law states that it won the case.

03:33 - 09.122 Law says it can't be used collaterally to tax assessments and to

03:33 - 12.559 the statute provides that

03:33 - 13.426 where there is an

03:33 - 16.429 alternative remedy under the law,

03:33 - 19.199 which in this case would be the assessment law, it cannot be used.

03:33 - 22.802 So I do not believe tribunal, the Board of Assessment

03:33 - 27.140 is the proper tribunal for a tax refund law claim.

03:33 - 29.909 So the Commonwealth Court,

03:33 - 32.379 that should have in the end of the question, I believe the

03:33 - 36.750 the Supreme Court has ruled that the failure to file an assessment appeal

03:33 - 38.518 strips the jurisdiction from both the trial

03:33 - 41.821 and the appellate courts as a subject matter jurisdiction issue.

03:33 - 45.358 What the circuit, what opposing counsel on Circle seasons will try to do

03:33 - 48.328 is revive their tax refund law

03:33 - 51.498 claim by saying that they are immune.

03:33 - 54.701 They were an immune entity or a presumption of exemption.

03:33 - 56.569 They kind of go back and forth

03:33 - 01.641 and for a number of reasons, I don't think that a charter school would provide

03:34 - 03.176 would be provided immunity

03:34 - 06.713 under the Friends of Pay Leadership case, which this court ruled

03:34 - 10.850 that the portion of the charter school law that provides

03:34 - 13.920 charter schools exemption and had a retroactive component,

03:34 - 18.124 that the retroactive component in violation of the Separations doctrine,

03:34 - 20.827 Chief Justice Todd joined a concurrence.

03:34 - 24.798 And there are two concurrences, both both agreeing with the decision.

03:34 - 26.032 But Chief Justice Tara

03:34 - 29.035 joined a concurrence that rely more on the uniformity argument

03:34 - 33.239 that to allow this to allow retroactivity would treat charter schools differently.

03:34 - 35.742 Which charter schools that had filed an appeal.

03:34 - 39.112 That statute was in place differently than charter schools that follow

03:34 - 41.514 that did not file an appeal before that such was in place.

03:34 - 45.318 So I think friends of peer leadership can be used to to establish

03:34 - 46.986 that charter schools were not immune.

03:34 - 49.589 If they were immune, you never would have needed the exemption language.

03:34 - 52.125 You never would have needed that challenge.

03:34 - 56.262 The Bucks County Community College case is also instructive.

03:34 - 00.367 It's a Commonwealth Court case, and the Commonwealth Court reviewed

03:35 - 03.103 the community colleges and said that they are not.

03:35 - 04.337 They are local agencies,

03:35 - 06.172 not instrumentality these of the Commonwealth

03:35 - 08.942 and therefore they're not entitled to sovereign immunity.

03:35 - 13.847 The argument they reviewed these creating statutes for the community colleges.

03:35 - 16.049 They also reviewed

03:35 - 18.685 at the end of the day who who's who's their creator.

03:35 - 22.989 And so similar to a community college, a charter school gets their funding

03:35 - 24.324 through the local school district.

03:35 - 27.327 They are created the local school district.

03:35 - 29.996 The Creating Statute of Charter Schools

03:35 - 33.566 specifically provides that while they are public schools,

03:35 - 37.337 which by the way, community College Act also provides that they're public

03:35 - 42.075 colleges, it provides that they are subject to be sued

03:35 - 44.544 in the same manner as local agencies.

03:35 - 47.747 The language local agency is specifically in the charter school law.

03:35 - 50.250 It also indicates a debt incurred

03:35 - 53.620 by a charter school cannot impose liability on the Commonwealth.

03:35 - 56.489 I believe those factors within the charter school law make it clear

03:35 - 58.692 that they are not an instrumentality of the Commonwealth.

03:35 - 00.593 They're not entitled to immunity,

03:36 - 02.962 nor are they entitled to a presumption of exemption.

03:36 - 07.434 The charter school law in exemption statute very clearly says that once

03:36 - 12.939 a charter school has has demonstrated that it is using the property for

03:36 - 15.408 purposes consistent with the charter school law.

03:36 - 19.412 So in that they've already placed an initial burden on the charter school

03:36 - 22.315 to prove that they are using the property in a particular manner.

03:36 - 26.252 So I believe it's not purchased a property under their name,

03:36 - 28.288 circled seasons charter school.

03:36 - 30.657 They did your a fair was that not sufficient proof

03:36 - 32.058 that they're a charter school?

03:36 - 34.494 I don't believe it is, Your Honor. And here's why.

03:36 - 36.996 Charter schools have to go through the obviously obtain

03:36 - 39.766 a charter from the local district in the first instance. Part of that

03:36 - 42.769 review of a charter is understanding where they're going to be housed.

03:36 - 44.804 So it's very easy to understand,

03:36 - 47.374 to think that a charter school could purchase a property

03:36 - 50.577 before it has its charter in place because they're purchasing the property

03:36 - 54.547 so that they can begin charter school activities there.

03:36 - 55.849 So a charter school

03:36 - 58.852 just by the purchasing of the property may not have its charter in place yet.

03:36 - 02.789 I think the next step is to prove that not only do they the charter in place,

03:37 - 05.892 but that they are actually, you know, educating students.

03:37 - 11.431 Additionally, I think that robs a due process component from taxing authorities

03:37 - 14.467 because let's consider a church that everybody knows.

03:37 - 17.737 It's a church that's in that's regularly

03:37 - 19.572 in the process of worship.

03:37 - 21.241 That in and of itself you can't.

03:37 - 23.343 I liken it to judicial notice.

03:37 - 25.512 I don't think a board of assessment can take judicial notice

03:37 - 27.881 that everybody knows that church is operating in a church there.

03:37 - 31.918 I think there still needs to be the action of filing for exemption and proving

03:37 - 34.587 that the worship is taking place or that the charter is in place,

03:37 - 38.258 or that they are educating students in accordance with the charter school law.

03:37 - 40.226 Well, you knew it was a charter school.

03:37 - 45.699 You remember a charter you made in 2018,

03:37 - 50.870 and then in 2016 you renewed the charter of for five years.

03:37 - 51.671 So there wasn't

03:37 - 56.643 any question in your client's mind that this was a charter school, was there?

03:37 - 57.210 That's correct.

03:37 - 59.112 Justice Murray And thank you for that question.

03:37 - 01.414 I think that's still gets back.

03:38 - 04.117 You know, the rule in Dylan's case, the rule of

03:38 - 07.487 frankly, they brought up opposing counsel, they brought up the issue of an ultra

03:38 - 08.488 vires act.

03:38 - 11.891 I would submit that school district

03:38 - 15.028 summarily because of their knowledge, ruling that a charter school

03:38 - 17.797 is entitled to exemption despite its existence on the assessment

03:38 - 21.234 rolls would be an ultra vires act that not within our purview.

03:38 - 22.802 That is not what we are tasked to do.

03:38 - 27.207 We are not empowered to make decisions as to whether a property is exempt

03:38 - 28.041 or not exempt.

03:38 - 34.314 We have to take the assessment rules as we them from the Board of Assessment.

03:38 - 36.116 Any other questions?

03:38 - 38.618 Okay. Thank you. So it goes up.

03:38 - 42.255 do you do want to just very briefly, if I may

03:38 - 43.923 look forward, I think there's a lot of case law

03:38 - 47.627 that establishes that the pro tunc relief would not be afforded.

03:38 - 49.162 They they did not act diligently.

03:38 - 52.632 They waited over a year to finally file for appeal.

03:38 - 55.268 They pay the taxes, which I think there's case law that establishes

03:38 - 58.538 that the payment of taxes waives any notice defects

03:38 - 01.508 and in its simplest, most logical terms are on a

03:39 - 03.777 of the parties that involved the school district, the taxpayer,

03:39 - 04.611 and the Board of assessment.

03:39 - 07.347 The school district was in the lowest position.

03:39 - 11.017 They're the least culpable in this scenario and they're in the lowest position

03:39 - 12.152 to have made a change

03:39 - 16.623 because they cleared up, deemed it anything other than than than taxable.

03:39 - 21.461 And you'll hear a comment that the district is receiving a windfall.

03:39 - 23.196 I think nothing could be further from the truth.

03:39 - 26.066 If anything, we were trying to protect our taxpayers base.

03:39 - 27.067 Thank you, Mr. Way.

03:39 - 28.702 To Thank you, Mr.

03:39 - 38.178 Bradsher.

03:39 - 40.013 Good afternoon,

03:39 - 41.247 Madam Chief Justice.

03:39 - 42.749 Members of the Court.

03:39 - 44.484 My name is Mark Bradshaw.

03:39 - 49.689 I'm with Stephens, and Lee and I represent Circle of citizens.

03:39 - 51.624 Just this

03:39 - 55.061 Monday you put your finger on this very clearly,

03:39 - 00.667 and that is that there is no doubt that the sponsoring school district,

03:40 - 06.606 if you will, knew that circle of citizens was, in fact a charter school.

03:40 - 10.343 And so we with all regard to Mr.

03:40 - 11.878 Herter,

03:40 - 15.582 it is not the case that we are suggesting

03:40 - 19.252 that the school district should second guess the assessment.

03:40 - 22.722 What we are suggesting is that when the school district

03:40 - 26.960 becomes aware that taxes have been collected from an exempt entity,

03:40 - 31.598 that it itself granted a charter to and a lawsuit is filed.

03:40 - 35.502 In fact, even before the lawsuit is filed, a demand was made upon

03:40 - 38.505 the school district that this was a mistake,

03:40 - 42.208 an error was made and we are asking for a refund.

03:40 - 44.277 Did you ever apply for exemption?

03:40 - 46.713 Sorry? You ever apply for exemption?

03:40 - 49.182 Well That that is a

03:40 - 52.419 isn't the burden on the on the actual entity itself to seek

03:40 - 56.022 a tax exemption from the school board as opposed to the other way around?

03:40 - 57.957 I mean, you're saying school board should have known

03:40 - 00.326 we're tax exempt and never really send us a bill.

03:41 - 03.329 But doesn't the law said that you have to apply for a tax exemption?

03:41 - 06.266 No, the law actually is not that clear on this point.

03:41 - 10.003 And are a number of decisions that I'd like to focus the court's attention on