00:00 - Good morning, everybody, and

00:03 - welcome to the Commonwealth Court

00:08 - on bank arguments.

00:10 - I am honored to share the bench today with judges McCullough.

00:15 - Well, Jake Dumas, Wallace and Wolfe, the bench here.

00:21 - Unfortunately, due to circumstances beyond her control,

00:25 - Judge Covey is unable to be here on the bench with us.

00:29 - But will participate by phone.

00:33 - So please speak clearly into your microphone.

00:37 - I want to thank the Pennsylvania Cable Network for televising our on bank

00:41 - arguments, which will be shown at a future date.

00:46 - We thank the following staff attorneys from our Office of Chief Legal Counsel

00:51 - who will provide introductions to the cases.

00:54 - Sam Ickes, Madison Poetica, Danielle.

00:58 - Notable Pontus and Colby Miller.

01:05 - Are on bank arguments,

01:06 - as I'm sure most of you know, our 30 minutes per case,

01:11 - which works out to 15 minutes per side.

01:15 - Petitioners or appellants can request rebuttal time.

01:21 - Dome liquor Porter Puget.

01:25 - That's Latin for while I speak.

01:29 - The time flies.

01:31 - So a little bit of a reminder

01:33 - that time flies while you're arguing.

01:36 - So please get to the heart of your argument as soon as possible.

01:42 - We are prepared.

01:43 - As you know,

01:45 - we've read your briefs.

01:47 - We've read the materials, and we're, very excited

01:52 - and looking forward to the arguments today.

01:56 - Hello, and welcome to the Commonwealth Court

01:58 - of Pennsylvania's February on Bonk session.

02:01 - My name is Samuel Echols, and with me are Colby Miller,

02:05 - Madison Pacheco, and Daniel Pontius.

02:08 - We are staff attorneys and the Commonwealth Court

02:11 - of Pennsylvania's Office of Chief Legal Counsel.

02:15 - The term on bonk is French for on the bench,

02:18 - and refers to a special procedure where a panel of seven Commonwealth court

02:21 - judges hears argument on cases that the court believes

02:25 - implicate complex or important legal issues.

02:29 - Today, the court will

02:30 - hear five such on bond cases.

02:33 - Colby, Madison, Danielle and I will present a brief summary of each on

02:38 - bond case, followed by the broadcast of the oral argument there on the that.

02:43 - Let's jump into the first introduction.

02:48 - In these

02:49 - first two consolidated cases, the City of Newcastle

02:52 - and the Police Pension Board for the City of Newcastle appeal for a decision

02:56 - of the Court of Common Pleas of Lawrence County, which reversed the pension.

03:00 - Board's decision that terminated pension payments for the ex-spouses

03:04 - of retired and deceased police officers.

03:08 - In the first case, Mrs.

03:10 - Williams was paid portions of her ex-husband's police pension

03:13 - benefits pursuant to a Qualified Domestic Relations Order, referred to as a Quadro

03:18 - until his death, were upon her application for survivor

03:22 - benefits and was denied by the Pension Board and the City Council.

03:27 - In the second case, Miss Crawford was paid

03:30 - a portion of her retired ex-husband's pension benefits pursuant to a Quadro,

03:34 - and then was inadvertently paid ex-spouse survivor benefits by the city

03:39 - for approximately 20 years until September of 2019.

03:44 - The pension board and the city's reasoning as to both the police

03:47 - was that the pension plan does not provide for survivor benefits.

03:50 - The ex spouses, up deceased police officers.

03:54 - The trial court reversed these decisions, and these appeals followed.

03:58 - The city argues that the trial court substituted its own judgment

04:01 - and legal theory for that of the pension board,

04:04 - and that is, consideration of the pension plan was based on a superficial analysis

04:08 - inconsistent with the plan's language,

04:10 - and contrary to this court's controlling precedent.

04:12 - In Maloney v Maloney and Kenney, the city of Wilkes-Barre

04:17 - police Pension Fund, which the city cites in support of its position

04:20 - that surviving ex spouses are not entitled to benefits where a pension ordinance

04:25 - does not contain a provision for ex-spouse survivor benefits.

04:29 - But the

04:29 - city argues that it was error for the court to find that, absent

04:32 - an express exclusion in the plan, an ex-spouse

04:36 - may retain the right to collect under the plan a such rights or assigned

04:39 - and alienated, but a deceased officer under a quadro.

04:44 - The appellate ex-wives,

04:45 - who are represented by the same attorney in these consolidated appeals, argued that

04:49 - the city and the pension board continually confuse the issues in these cases.

04:55 - The police explained that the substance of the city's argument

04:57 - is that the pension plan does not provide for payment of survivor benefits

05:01 - to an ex-spouse of the deceased retired police officer,

05:04 - and that the ordinance does not define ex-spouse as a surviving spouse,

05:09 - a police state that they did not seek payment of benefits

05:11 - beyond the terms of the plan, but rather payments permitted by the plan

05:15 - was implemented by the City and Pension Board,

05:18 - a police state, that the actual issue in these cases is how the term

05:21 - surviving spouses interpreted as to their claims for survivor benefits.

05:27 - The police also claim

05:28 - that the city wrongly attempts to divert focus away from this issue

05:31 - by asserting that it cannot pay benefits not permitted by the plain language.

05:35 - However, a police state that what this court must decide

05:38 - is whether the record established that the city and the pension board,

05:41 - by their acknowledgment, approval and implementation of the quadruples,

05:45 - defined the term surviving spouse as applied to a police

05:49 - to include them as ex spouses.

05:52 - Good morning. May it please the court.

05:54 - My name is Audrey Copeland, and I'm going to be appearing on behalf

05:57 - of the City of Newcastle and the Police Pension Board of the city.

06:01 - I'd like to reserve three minutes rebuttal time, please, and have it,

06:07 - as your orders.

06:07 - No, this, case involves the ex

06:10 - spouses of, deceased police officers who are seeking survivor

06:14 - benefits, surviving spouse benefits under the police pension plan.

06:19 - While the, each of the

06:21 - petitioners, the ex spouses,

06:25 - have different facts involving their underlying cases,

06:28 - the same errors really occurred by the trial court.

06:32 - This is a

06:34 - a statutory appeal with the sole issue because of the narrow standard of review,

06:39 - is the interpretation of the pension ordinance,

06:42 - which has no provision for ex,

06:46 - for ex spouses to receive surviving spouse benefits.

06:50 - Council.

06:50 - Excuse me, it does have provision for surviving spouses.

06:53 - And in this case we have Droze

06:56 - or Kudrow's or whatever we call them

06:59 - that legally recognized the ex spouses

07:03 - in those agreements as the surviving spouse.

07:07 - So they are surviving spouses for purposes of the drugs they have both been paid.

07:12 - I believe both Williams and Crawford for a number of years.

07:16 - I think it was Koff.

07:17 - Crawford was had a representation made to her that her benefits

07:21 - would continue, that, by the attorney for the city,

07:28 - or the board, not the board.

07:30 - The city and that that those payments were made for quite a number of years.

07:36 - So if you could get into the issues of justifiable reliance here,

07:42 - I think that would be really important for me to hear.

07:45 - Of course, Your Honor.

07:47 - And let me first correct

07:48 - that Crawford was indeed paid for probably approximately 20 years.

07:52 - Williams was never paid by the city.

07:55 - She was never paid a surviving spouse benefit by the city.

07:58 - But the city was given the agreement, correct.

08:01 - They both signed the deal.

08:03 - So the gyros were approved by the trial court.

08:05 - So there were dear pros in place.

08:08 - But let me counsel, just so we're clear,

08:11 - neither were paid as a surviving spouse or a surviving spouse.

08:16 - Crawford was paid under the plan as a divorce spouse

08:20 - whilst the employee, the retiree, was still living.

08:25 - Correct?

08:26 - Crawford was paid while he was still living, but also as an ex spouse.

08:32 - Also as a surviving spouse. Correct?

08:34 - It was Williams who was paid while he was living by her husband himself.

08:39 - But but who's who then after his death,

08:42 - applied for surviving spouse benefits and was turned down because.

08:46 - Because there's no provision for surviving spouse benefits.

08:49 - Is there a provision in the plan for ex spouses?

08:54 - Yeah, yeah.

08:55 - There's no provision for spouses or and no proposals are not.

08:58 - Ex-Spouses are not mentioned both as living and surviving.

09:02 - Aren't they mentioned in the provision for an alternative pay?

09:08 - Will the pros do describe

09:10 - alternative PS as the ex spouses?

09:13 - However, the zeros are not controlling the pension plan language

09:16 - controls of the Dros

09:18 - as held in for instance, in the Conway case,

09:22 - but also the d'euros contained a very, very important provision.

09:26 - I would like you to first, you didn't have a chance to address

09:28 - the Scrabble reliance.

09:30 - And I think that that actually goes into just for reliance

09:33 - because for both parties, the both parties had the Dros,

09:36 - but the Dros in both of the

09:40 - in both.

09:41 - There's a language in both of the Dros that,

09:45 - the alternative payee is not entitled

09:47 - to any benefit, not otherwise provided by the plan.

09:50 - In other words, the Dros themselves said they might

09:53 - they might have mentioned the surviving spouse benefits, but the Dero said.

09:56 - And that, I believe, goes

09:58 - so that's essentially fatal to any of their claims in euros.

10:02 - Excuse me again, if I might note, though, in the pension plan.

10:06 - 169.06 under death

10:09 - benefits, be it talks about the right of the surviving spouse,

10:12 - isn't the issue here that the city recognized the agreements calling these ex

10:18 - spouses surviving spouses, as you said, sign them?

10:22 - The pension plan doesn't make a distinction.

10:24 - Oh, if you sign the show and we signed it, that says, surviving spouse.

10:29 - That's not included with the term surviving spouse.

10:32 - So are we here to interpret whether that term surviving spouse

10:37 - includes the surviving spouse

10:39 - as recognized under court approved.

10:43 - Kudrow's. Kudrow's.

10:45 - Yes. And I think that that that again, goes back to your original question.

10:49 - So the sole issues, whether the term spouse or surviving

10:52 - spouse includes the surviving spouse, which I think I think is is

10:56 - is what you mean to say, and it does not,

11:00 - the, the language in question. No.

11:02 - I'm sorry.

11:03 - My question is if in the Q are the Droze, the spouses are recognized

11:09 - as explicitly as a surviving spouse, and in one instance this is goes to

11:15 - the justifiable reliance was paid pursuant to that and told by the attorney.

11:19 - Yes, you continue to receive those benefits.

11:24 - They already are recognized as the surviving spouse

11:27 - in the Kudrow's for purposes of the pension plan

11:32 - and the other actions, why should they not be the surviving spouse there?

11:36 - It doesn't say otherwise.

11:38 - And everything here goes to the issue.

11:41 - I think of justifiable reliance and the expressed language in the Droze,

11:45 - which were signed.

11:47 - Well, again, just like the yours did include that language

11:50 - that said, the alternative pay is not to any.

11:52 - It's not entitled to any benefit, not otherwise provided by the plan.

11:57 - Benefits for surviving expenses are not otherwise provided by the plan.

12:02 - So no matter what they put in the Droze, and even if they were, quote,

12:07 - approved or unfit for the, the duros were given to the city.

12:13 - They were

12:14 - approved by trial courts, as they ordinarily are.

12:17 - This the city is not a party to any of the divorce marital settle agreements.

12:22 - It's not a party to the duros.

12:24 - There's no process to approve the duros.

12:27 - And if somebody in the city approves

12:30 - that provision, I think it was the solicitor.

12:34 - I mean, it wasn't maybe a formal vote.

12:38 - But I thought the solicitor reviewed it

12:41 - prior to and approved it prior to their filing it for the court approval.

12:47 - The 0% unsolicited to the solicitors who,

12:52 - I suppose it could be read as saying that they approved the OS.

12:56 - However, they prove the DeRose if if indeed they approve the duros

13:00 - they also would, if approval approve that language that said,

13:04 - that no one is entitled to any benefits not provided by the plan.

13:08 - The plan does not provide those benefits.

13:10 - And again, no where.

13:11 - It just nowhere does it define spouse.

13:13 - But so in that case, she must look to the the common usage of the term spouse

13:19 - and the common usage of the term spouse is a married person.

13:24 - And both of these individuals, both of these petitioners, were not married persons.

13:29 - They were divorced persons.

13:31 - So therefore they they can't possibly qualify under the plain and unambiguous,

13:36 - language of the plan and the parents intention.

13:39 - And I'm sorry. So how was it then, that Mrs.

13:42 - Crawford received so many payments thereafter?

13:46 - That indeed it was 20 years of payments, and then there was an oversight.

13:50 - And the mistake

13:51 - was, there's nothing in Pennsylvania law that says you can't correct mistake.

13:55 - In effect, there is a law that the city does not is not on the hook

13:58 - in perpetuity for mistake and punished pension benefits

14:02 - and it clawback that money.

14:06 - I think it's a really important point.

14:07 - There's there's the the city is not seeking reimbursement.

14:10 - You have the right to claw that money back.

14:13 - That that I'm not sure, Your Honor, but I know that there's no intention

14:16 - whatsoever to seek reimbursement.

14:17 - I think it's a it's been made very, very clear.

14:20 - And it's just to stop those benefits going forward and stop, Mrs.

14:24 - Williams, who didn't receive any benefits, as in,

14:28 - a surviving ex-spouse from receiving any benefits in the future

14:32 - or retroactively to the date that her application was denied.

14:35 - So I think that's that is that's one of the key points.

14:39 - The second one, of course, being is the language of the deer itself

14:42 - and case law saying that a two year old can't provide for pensions.

14:46 - In addition to what's provided in the pension plan

14:49 - and otherwise it amend the pension plan without the proper,

14:53 - executive legislative process, which is set forth in the plan,

14:56 - which requires certain actions and approval by city council.

14:59 - And it was so your position is that any kind of, application

15:04 - of equitable estoppel, which is where the justifiable reliance would come in,

15:11 - would be, prohibited amendment of the plan.

15:15 - It would be because the city officials who gave that permission,

15:18 - did not have this or to do that.

15:20 - So they were acting against a positive rule of law,

15:23 - but also, again, back to justifiable, justifiable reliance,

15:28 - again, the language themselves of the DeRose.

15:30 - So you're not entitled to benefits,

15:31 - not the plan, but, particularly with regard to Williams.

15:35 - Williams was warned before her ex-husband died, was by letter

15:39 - by the pension board solicitor in 2007 that she was not entitled to receive,

15:45 - you know, regardless of what her dear said, she would not be held to fact,

15:48 - it isn't that a little bit late because,

15:51 - you know, this was part of their divorce settlement and,

15:56 - had they not believed

15:59 - that they were entitled to these payments,

16:02 - perhaps their divorce settlements would have looked different.

16:06 - Well, for instance, Williams, husband was still alive.

16:09 - So so she had every opportunity to take some kind of action

16:12 - in which she did not be possibly to, you know, change the word of agreement.

16:17 - But she took no action.

16:19 - And, so she knew approximately ten years before his death,

16:23 - from the, pension board solicitor, Mr.

16:25 - Rhodes, that, she would not be entitled to,

16:30 - ex-spouse survivor benefits in Pennsylvania.

16:34 - A spouse is entitled to,

16:36 - among other things, equitable distribution.

16:39 - Right,

16:41 - right, right, right.

16:43 - And and this

16:46 - represents,

16:48 - equitable distribution by assigning

16:51 - a portion of the pension to the divorcing spouse.

16:56 - Right.

16:57 - To jurisdiction for safe benefits, either.

17:02 - I think Crawford might have been paid by the city,

17:04 - I believe, for uses paid by her ex-husband, but that's essentially

17:08 - that's a division of an asset while both parties are alive.

17:11 - Let me just get to the point rather than try to, drag it out

17:16 - if it's not assignable

17:19 - to an ex spouse to a Quadro,

17:21 - then the police officer is going to have to come up

17:26 - with an equivalent value cash,

17:30 - to pay them out of pocket.

17:32 - That's the alternative.

17:34 - That's the only alternative, isn't it?

17:37 - I'm not sure they might have other alternatives,

17:39 - but at the same time, he they.

17:40 - Of course, while the other ex-husband is alive,

17:44 - they are receiving their share of those benefits.

17:49 - It's not quite

17:50 - alimony, but it's, you know, they're receiving that it's it's

17:53 - the issue really is what happens when the husband dies and become an ex spouse

17:57 - because the ex spouses are not provided for in the pension plan.

18:02 - Right.

18:02 - But so how does a,

18:06 - spouse who is divorcing a police officer

18:09 - get equitable distribution of their share of the pension?

18:13 - And that, I think, would depend on the individual circumstances?

18:16 - Well, we have two here now.

18:18 - So how should they have done it?

18:22 - I can't say I'm not an actuary, you know, I'm

18:24 - not certain what assets this individual had had, but

18:29 - back again to

18:31 - he also couldn't could not assign them

18:33 - because he didn't have the ability to do so in that plan.

18:36 - So, so surviving expenses.

18:40 - What are you saying. So he he he

18:43 - under the pension plan,

18:45 - she didn't, for example, Bonnie Williams, she didn't have the opportunity.

18:48 - She was not entitled to receive any survivor benefits.

18:51 - And he was not entitled to assign them, even though it's, signed off by the court

18:55 - as an agreement to assign a, entitlement to the pension.

18:59 - Well, with regard to domestic relation orders,

19:01 - you know, certain things are assets, marital assets,

19:04 - like a 401 K, you know, pension benefits and things like that.

19:08 - And that's the reason these orders

19:09 - re, you know, commonly entered so that there's understanding,

19:13 - as you know, during the divorce as to what assets will be assigned to what 40.

19:18 - So especially with retirement benefits.

19:20 - And thank you very much.

19:22 - You have your three minutes.

19:38 - If it may please the court.

19:40 - John D Carroll was co-counsel Deborah Shaw, on

19:43 - behalf of Bonnie Williams and Laura Crawford,

19:47 - if I may, your honors, just clarify

19:50 - some facts based on the court's questions.

19:53 - What happened in both cases, obviously, at different times

19:57 - in the course of the divorce and in negotiating that equitable distribution,

20:03 - our client sought to get a share of their husbands

20:06 - police pension, not only while

20:09 - the husband was alive after his death,

20:14 - each of their divorce attorneys

20:15 - wrote to the city to say, can we do this under the pension plan?

20:21 - Can our clients be the surviving spouses?

20:25 - And in both cases, we're told yes,

20:29 - all the city and pension plan had to do

20:32 - was say no, and we're not here today.

20:35 - But they did not do that. They said yes.

20:38 - Relying on that representation, our clients then finalized

20:42 - their divorce, equitable distribution negotiations.

20:46 - And under the divorce code, that's final.

20:49 - Even if the spouses were a lot, unless they would voluntarily

20:52 - agreed to amend it, the court has no authority to amend it.

20:55 - Our clients couldn't go to the court, so they were stuck with whatever they got.

20:59 - And obviously part of that negotiation was, hey, I'm getting a pension after.

21:03 - If I survive, my ex spouse.

21:06 - The city in the pension likes to say

21:09 - that it was never approved in the record does not support that.

21:13 - We set forth in our brief various parts of the record that shows

21:19 - that it wasn't just the city manager that approved it by the draft,

21:25 - but the pension board itself approved these kudrow's.

21:29 - The records showed that there is no formal process,

21:33 - and there was not always a written approval, and there wasn't

21:37 - always a written resolution from the pension board,

21:40 - but that the process was to send

21:43 - a Kudrow to the pension solicitor.

21:47 - He would review it and advise the pension board

21:50 - if it was acceptable, and if so, then payment would be issued.

21:55 - And again, we cite in our brief, the designees,

21:58 - when we took depositions of the city and pensions representative

22:02 - who said we agree that if your clients were paid,

22:06 - the pension board approved that Kudrow so that they city

22:10 - and pension likes to keep saying it was never approved.

22:13 - But that's not true. It was approved.

22:17 - Both of our clients were paid

22:19 - a share of the monthly pension while their spouses were alive.

22:23 - When Ernest Crawford died, Laura Crawford

22:26 - got survivor benefits for over 20 years.

22:30 - And in the course of that, 20 years after an audit by the state,

22:35 - the city and pension came back to Laura Crawford and said,

22:39 - we made a mistake and we owe you more money.

22:43 - Bonnie Williams got paid a share of Robin Williams pension,

22:46 - I believe, $900 a month while he was alive.

22:50 - And then when he died, she made claims and it was denied.

22:53 - So she never did get paid after his death.

22:56 - But we submit what the issue really is,

23:00 - is that we're not asking to be paid outside of the plan.

23:03 - We acknowledge that the case law is clear.

23:05 - You can't be paid outside of the plant.

23:07 - But what we're saying happened here is there is an undefined term

23:11 - surviving spouse.

23:13 - The question is, does it include ex spouse?

23:16 - We say that in this situations in these two situations

23:20 - where the city in the pension approves a Kudrow

23:24 - that names the ex spouse as the surviving spouse or surviving beneficiaries

23:30 - and implements those kudrow's that action in answer,

23:34 - in essence, gave definition to the undefined term,

23:38 - and they can't change their mind after the fact.

23:41 - They they defined the term.

23:43 - They had the ability

23:44 - when they wrote the pension ordinance to define what a surviving spouse meant.

23:48 - I don't think I agree with you

23:50 - that they could alter the definition and that the authority was there to do so.

23:54 - So as for me, I think your strongest argument is going to be the equitable.

23:58 - So maybe you can talk a little bit about the

24:01 - the reliance and the trial court's opinion as well.

24:05 - Sure.

24:05 - So in terms of just for reliance, the trial court found that,

24:10 - and what the trial court said in his 1925 opinion, regardless of how you handle

24:15 - the statutory interpretation, even if you accept the the appellant's

24:20 - view on that, that he applied,

24:24 - the justifiable reliance and found that the,

24:28 - the general rule that precludes estoppel being applied

24:33 - against the government didn't apply here because of that justifiable reliance.

24:38 - I think an initial question is, were the city's employees

24:43 - acting in a governmental function or a proprietary function?

24:48 - Because, as we would submit,

24:49 - as we understand the case law, that if they're acting in a proprietary function,

24:53 - that estoppel doesn't apply, in the governmental function

24:57 - would go to the general public health safety, welfare benefit.

25:01 - And that's not the case here.

25:03 - Administering a pension plan is proprietary,

25:06 - in our opinion, Your Honor, that they could outsource it.

25:09 - They could they could hire someone to be the administrator.

25:12 - So for us, it's a proprietary function and the estoppel what even apply.

25:17 - But if it does, then we get into the fact that there is the fundamental injustice,

25:22 - and the fundamental injustice is clearly and has been noted.

25:27 - Our clients can't go back and negotiate

25:30 - their divorce settlement there without funds

25:34 - that they relied upon having as part of that divorce settlement.

25:38 - It was justifiable.

25:40 - They were told multiple times that they cannot,

25:44 - that they could be the surviving spouse, and they acted in reliance on that.

25:49 - So we feel that

25:52 - there's the statutory interpretation

25:54 - would lead to affirming the trial court.

25:57 - But even if we find that we know that

26:01 - the justifiable reliance, the,

26:05 - in the harmed our clients would get us outside

26:08 - that and that the city and pension should be stopped from,

26:13 - denying the benefits.

26:18 - The underlying

26:19 - there is an issue too about the record.

26:22 - And I think that regardless if we view the record as,

26:27 - being complete before the trial court

26:29 - or we, the trial court conducted a de

26:32 - novo review, clearly there's no dispute the record was a supplement.

26:36 - It our local rules allow for, supplementation of the record

26:41 - in that section is under a subsection called evidentiary hearing.

26:47 - So, while the court

26:49 - trial court doesn't state that he conducted at the Novo review,

26:54 - I would submit that he did, because how else do you consider

26:58 - the supplemented record? But really,

27:01 - it may make no issue in terms

27:04 - of what you consider the record being complete.

27:09 - And did he conducted de novo review he the trial court or did

27:13 - he review the City Council's decision because I think we get to the same result,

27:18 - that the adjudication from city Council

27:23 - rested on the Maloney and Kenny cases, a finding that the Kudrow's

27:28 - were never approved and then reference to the financial condition of the city.

27:33 - I talked about where the record shows there's no substantial evidence

27:37 - to say the shares won't or prove they were approved.

27:41 - It's clear in the record that the financial condition of the city,

27:45 - we objected before city council in the Williams case.

27:48 - That was sustained. It's not in the record.

27:50 - It was never introduced in the Crawford case.

27:52 - It was never part of the supplemental record.

27:54 - So there's another findings.

27:56 - Conclusions 18 through 20 of the adjudication that aren't supported.

28:01 - And we submit that the trial court correctly,

28:04 - distinguished the Maloney and Kenny case.

28:06 - So regardless of whether

28:09 - you're reviewing

28:11 - the City council's adjudication or if you're reviewing the trial courts

28:15 - de novo determination, I think this court is looking at

28:19 - was there an error law in terms of distinguishing Maloney and Kenny,

28:24 - and then looking at whether there was evidence to support

28:28 - findings of no approval in a financial condition of the city?

28:32 - So I think we get to the same point in if any of those pillars upon

28:36 - which that adjudication rested collapses, then then the adjudication itself

28:41 - collapses and our clients are entitled, to money.

28:46 - And I'm sorry to go back to the equitable estoppel, discussion.

28:51 - But just to clarify, even though,

28:54 - I guess there's an argument,

28:57 - that Williams and Crawford

28:59 - are not similarly situated with regard to that

29:02 - because Williams never actually received survivor benefits. The,

29:11 - they're both of them are

29:12 - similarly situated with regard to the,

29:17 - information that they got

29:18 - from the pension solicitor.

29:22 - That and that was used to enter into their quadrants so that they would,

29:29 - for ego whatever other benefits

29:31 - they could have received in a divorce settlement.

29:34 - And that's the basis, at least in part,

29:37 - of the equitable estoppel arguments.

29:41 - Your honor, I believe,

29:43 - respectfully, that even for Miss Williams, there is the fundamental injustice

29:48 - because, again, she can't go back and renegotiate

29:52 - that divorce settlement.

29:55 - She obviously made a decision

30:00 - in taking an agreement with her ex-husband based upon.

30:03 - If I outlive him, I'm going to get certain monthly benefits that she's been denied.

30:08 - So there is this fundamental injustice.

30:11 - And, you know, I would stress that when the city implemented

30:15 - the Kudrow for Miss Williams,

30:18 - it wasn't Mr.

30:19 - Williams that paid during his life.

30:21 - Miss Williams, a share of that pension.

30:24 - He didn't pay the $900 to this.

30:26 - The pension took $900 out and paid it to her.

30:30 - And then they paid the balance to Mr. Williams.

30:32 - So let me follow up on that.

30:34 - So he has a quadro saying for both of these folks.

30:41 - Ex spouse gets the payments

30:43 - during retirement and upon death.

30:46 - What did the pension plan beneficiary designation say for each person?

30:50 - I haven't seen that in the record.

30:51 - I might have missed it, but did it provide for the spouses or spouses?

30:56 - There was no separate beneficiary designation, the Kudrow's,

31:00 - where we would submit where the beneficiary designation.

31:04 - So they called them the surviving spouse or surviving beneficiary.

31:08 - Okay.

31:08 - So what about what about prior to divorce?

31:12 - Were either of the sex spouses

31:14 - listed as pension beneficiaries during the marriage?

31:18 - Do we know that?

31:19 - I don't believe it's part of the record, Your Honor,

31:21 - but my understanding is they would have been the beneficiaries as the.

31:25 - But we don't know, current spouse.

31:26 - But it's not part of the record.

31:28 - I have a question in the quad rows.

31:31 - So the nature of Quadro, since we know a divorce is coming nonetheless,

31:35 - the Quadro refers to the soon to be ex spouses as the surviving spouses.

31:39 - And we know the plan

31:41 - doesn't

31:42 - define surviving spouses is to include ex spouses.

31:46 - Nonetheless, I understand all the agreement was what everybody thought

31:49 - so soon to be spouses were called surviving spouses in the Quadro.

31:53 - Here's my question. Change of fact pattern.

31:56 - What if before one of the police officers passed away,

32:01 - he remarried and now there really was a surviving spouse?

32:05 - What would happen?

32:07 - The our clients would still get those survivor benefits?

32:11 - Your Honor, because the participant spouse, the

32:15 - the employee spouse had already assigned those survivor

32:18 - benefits to our clients through the Kudrow, so

32:22 - he would not have any benefits to then assigned to the new spouse.

32:26 - And the plan would define the surviving spouse differently.

32:29 - So I guessing the surviving spouses position

32:32 - will be different than what you're just saying.

32:34 - Correct, I would

32:35 - I would agree that the surviving spouse would take the opposite position,

32:39 - Your Honor. So our next case in

32:42 - in just the stress for here, neither of the participant

32:46 - spouses remarried, after the divorce and prior to their death.

32:51 - So we believe that this court should affirm the trial court

32:56 - should find either as the statutory interpretation, because the actions

33:01 - of the city and pension define that term to include ex spouse,

33:05 - or regardless if you, don't find it

33:08 - that statutory interpretation to apply that the equitable staple

33:13 - and fundamental justice dictates that our clients get benefits.

33:17 - Thank you, Your Honor.

33:19 - Thank you.

33:20 - Just one council. Just.

33:22 - Yes. Yes, it's. I'm sorry. It's me.

33:24 - You said neither spouse, neither remarried.

33:27 - Are you talking about the the decedent or the surviving spouses or both?

33:32 - The decedent participating.

33:34 - Our clients are still living.

33:36 - No, no no, I no, but did they remarry our clients did not remarry, okay.

33:40 - And neither did their excitement.

33:42 - Okay. Thank you. Okay.

33:53 - Your honor,

33:54 - let me first address justifiable reliance again.

33:58 - There's a case, the Finnegan case that we cited

34:00 - extensively in our in our brief and

34:05 - that's a case that, concerns

34:07 - city officials or government officials, acting without authority,

34:11 - and that their determinations, because they're not acting

34:15 - with authority, are not binding on the city.

34:18 - And in Finnegan,

34:20 - the claimant in that case had specifically inquired

34:23 - of the particular,

34:26 - of pension service,

34:28 - her interpretation, so you could purchase extra credits.

34:31 - She, you know, she relied on it.

34:32 - She inquired, and, she was given incorrect

34:35 - information,

34:38 - and made a retirement decision based upon that.

34:42 - But again, because,

34:44 - that was against a positive rule of law.

34:49 - Finnegan is analogous here.

34:51 - And it's to say it doesn't matter that there's justifiable reliance.

34:54 - Your position is that the actions of the municipal officials are ultra

34:59 - aviaries that they're not within they're not binding on the municipality.

35:04 - Correct. They're not within their duties.

35:05 - And there is positive rule of law, which is the pension plan.

35:08 - And, you know, the fact that has to be amended by legislation.

35:11 - And so therefore they're there's no fundamental injustice.

35:15 - And that's a very, very rare concept

35:17 - that's been utilized as the Chester case, I think, was cited by both of us.

35:22 - And in that case,

35:23 - a health care provider relied to its detriment on,

35:28 - accepting and treating, many,

35:30 - many patients and,

35:33 - details of the agreement not been withheld or upheld.

35:36 - I'm sorry.

35:37 - They would have been,

35:39 - in, in debt or had, you know,

35:41 - have lost $250,000.

35:46 - In this case, we're not asking

35:47 - for any payments by Williams or and certainly

35:51 - she didn't receive anything or certainly by Crawford, who,

35:55 - I believe the record said she at least at one point she had received

35:58 - at least over $200,000, no reimbursement.

36:01 - It's just, you know, the pension plan and city have a duty to correct

36:06 - this going forward and not make payments not provided for by the plan.

36:10 - And they can't do it administratively.

36:12 - They have to do it by the process.

36:14 - There are lots of things that work. It's a bargain for

36:17 - benefit. And

36:20 - and they're under the gun for things like this.

36:23 - For instance, as a plan, sponsors are obligated

36:25 - under state and federal law to follow the plan document,

36:29 - and deviating would would have caused disqualification of the plan,

36:34 - for IRS purposes, other purposes

36:36 - and potential problems when audited by the Auditor General.

36:40 - I mean, this is not just a mere administrative,

36:43 - decision or or whim or payment or error or mistake

36:48 - that could bind the city or amend that pension plan.

36:52 - It's a it's a legal document.

36:54 - And the fiduciary duty, fiduciary duty of the city is to follow it

36:58 - and to not make pensions

37:01 - that are beyond the scope of the plan.

37:05 - And also with regard to the supplementing of the record,

37:09 - this case is consolidated with a civil case.

37:11 - The civil case, has equitable claims.

37:15 - In fact, very, very similar to the claims here

37:18 - in which there are a lot of equitable arguments. And,

37:22 - that case is currently pending.

37:24 - It's just been decided in summary judgment

37:26 - in the claimants favor, in particular favor,

37:29 - the same trial judge, based upon the trial judge's decision here.

37:34 - So there there are equitable claims out there.

37:37 - And this is a statutory appeal.

37:40 - And these claims really have no place in this appeal.

37:43 - It's very, very limited standard of review.

37:45 - And scheduled review is speaking of standard of review very quickly.

37:50 - Are we reviewing the,

37:54 - city's decision or the trial court's decision?

37:57 - Well, I guess in, in terms, you you are reviewing

38:01 - the trial court's decision, but the trial court was had to, review it.

38:05 - Was it de novo?

38:06 - Did the trial court have a review because it supplement

38:11 - because of the supplementation of the record.

38:13 - The trial court specifically said that, regardless of the fact

38:17 - the record was supplemented,

38:19 - its standard of review was the same as a statutory appeal.

38:22 - So that is not a that's to know not to know if it's constitutional error.

38:26 - It's an error in applying, I guess, the procedure in apply the plan

38:29 - or legal error.

38:30 - And if the findings are not supported by substantial evidence

38:34 - and the trial court went in, it did not look at whether the findings

38:38 - of the pension board,

38:39 - which were adopted in both cases, were supported by substantial evidence.

38:43 - The trial court substituted its own factual findings.

38:47 - Introducing and its own judgment for that of the local agencies below,

38:51 - introducing these concepts of equity that have no place in the statutory appeal

38:56 - or under the standard of review.

38:58 - Thank you very much. Thank you.

38:59 - We appreciate the arguments today,

39:01 - very well-argued, and we'll take it under advisement.

39:06 - I'm not a simpatico.

39:07 - This next matter raises profound questions about the status of abortion access

39:11 - in Pennsylvania, and rests

39:13 - against the backdrop of the similar ongoing national conversation.

39:18 - This case involves the coverage exclusion, a section of Pennsylvania's.

39:22 - Abortion Control Act that prohibits the use of public funds

39:26 - for the performance of abortions except to avert the mother's death,

39:30 - or in instances where the pregnancy was the result of rape or incest.

39:35 - The coverage exclusion, which affects persons

39:37 - enrolled in or eligible for medical assistance,

39:41 - which is Pennsylvania's state Medicaid program, differentiates

39:45 - between pregnant women who seek to carry their pregnancies to term,

39:49 - and pregnant women who seek to obtain abortions.

39:52 - The former received full coverage for the reproductive care they seek, whereas

39:56 - the latter do not receive government funding for the reproductive care.

40:01 - In 2019,

40:03 - multiple abortion providers challenged the constitutionality of the law

40:07 - by arguing the coverage exclusion violated a provision of the Equal Rights.

40:11 - Amendment to the Pennsylvania Constitution.

40:14 - This amendment provision states that the equality of rights under Pennsylvania

40:17 - law shall not be denied or abridged on the basis of an individual's sex.

40:23 - The providers sued the Department of Human Services, or DHS,

40:28 - the agency responsible for administering medical assistance,

40:31 - by filing a petition for review in this court on behalf of the providers

40:35 - themselves and on behalf of their patients

40:38 - enrolled in or eligible for medical assistance.

40:43 - DHS opposed the petition.

40:45 - Pennsylvania lawmakers sought to intervene in the lawsuit, which this court allowed

40:50 - before reaching the merits.

40:52 - This court dismissed the petition,

40:54 - deciding the providers lacked standing to challenge the coverage exclusion

40:58 - based on the constitutional rights of third party patients.

41:02 - The providers appealed this decision to our Supreme Court,

41:05 - which reversed this court's decision,

41:07 - concluding that the providers have standing to challenge the covers exclusion

41:11 - and that the lawmakers could not intervene in the case on the merits, are.

41:16 - Supreme court opined that the coverage exclusion contains a sex based distinction

41:20 - of funding reproduction, health care for men,

41:23 - but restricting the coverage of such care for women,

41:26 - and thus is presumptively unconstitutional.

41:30 - In doing so, the court overruled its prior 1985 decision in Fisher

41:35 - versus Department of Public Welfare, which previously held the coverage.

41:39 - Exclusion did not violate the Equal Rights Amendment.

41:43 - Finally, our Supreme Court remanded the matter to this court

41:46 - for further proceedings.

41:48 - Where it would be DHS is burden to rebut the presumption of unconstitutionality.

41:53 - Now the matter's returned to the court.

41:55 - On remand, the providers have moved for summary relief.

41:59 - Typically, the parties on opposing sides of the proverbial V are adversaries.

42:04 - Here, in a unique procedural posture, the parties are on the same side,

42:09 - metaphorically and literally, sitting at the same bench during oral argument.

42:14 - DHS now agrees through filed stipulation that the Pennsylvania.

42:17 - Constitution protects the fundamental right to abortion,

42:20 - that the coverage exclusion is unconstitutional,

42:23 - and further joins the providers in asking the government, this court,

42:27 - to grant the application for summary relief.

42:29 - DHS claims, however, it must still enforce

42:32 - the coverage exclusion that it believes to be unconstitutional

42:35 - unless and until the provision is struck down by a court.

42:40 - Because the parties now share a legal position,

42:42 - the court invited amicus brief filers, who were several lawmakers

42:46 - previously afforded intervenor status, to present oral argument.

42:50 - During argument, the en banc panel raises critical questions

42:53 - as to whether a case or controversy exists for the court to rule on,

42:57 - and how the matter can proceed where dispute no longer

42:59 - exists among the parties.

43:02 - You also hear discussion about the Office

43:04 - of General Counsel and the Office of Attorney General.

43:07 - Neither office is a party to this case.

43:10 - Pennsylvania's statutory law, however, requires the Attorney General

43:13 - to defend the constitutionality of statutes in the absence

43:16 - of a controlling decision by a court of competent jurisdiction,

43:21 - the Attorney General is further obligated to represent the Commonwealth

43:24 - and its agencies in legal matters.

43:26 - In this case, the Attorney General delegated its authority

43:29 - to the Office of General Counsel, which represents DHS.

43:33 - Now let's listen to the argument.

43:35 - Good morning, Your Honors.

43:37 - Susan Fritsch of the Women's Law Project

43:40 - joined with my co-counsel, David, as Cohen,

43:44 - appearing on behalf of the petitioners, Allegheny Reproductive Health Center

43:49 - and other reproductive health care providers.

43:52 - The providers would like to use nine minutes of the parties

43:57 - combined argument time

44:00 - and, opposing counsel for DHS.

44:04 - We'll use five minutes, and I would like to reserve one minute for rebuttal.

44:10 - Okay. Thank you.

44:12 - May it please the court a binding opinion

44:16 - from the Pennsylvania Supreme Court in this case

44:20 - holds that the Medicaid coverage exclusion

44:23 - is a sex based classification

44:26 - that is presumptively unconstitutional.

44:30 - Yet DHS is continuing

44:33 - to enforce this unjust law,

44:36 - which is every day inflicting

44:38 - severe harm on my clients

44:42 - and the people they serve, their health, their dignity, and their autonomy.

44:48 - No one.

44:49 - Excuse me, counsel,

44:50 - could you answer first the question of whether we have a controversy

44:53 - before us, since that's evidenced by where the parties are sitting.

44:56 - DHS and the petitioners are sitting on the same side

45:00 - because they've now taken the same position.

45:02 - No one's contesting the issue.

45:04 - Is there a case or controversy before this court?

45:07 - Oh, yes.

45:08 - Your Honor, there is true adversity here.

45:11 - Who's representing that?

45:14 - The controversy on the other side.

45:16 - So, Your Honor,

45:18 - the controversy here

45:20 - is that despite the fact that we have a law

45:24 - that has been functioning for 40 years,

45:27 - that has now been declared in a binding decision

45:31 - by the Pennsylvania Supreme Court to be presumptively unconstitutional.

45:36 - And despite the fact that US has conceded

45:40 - that it cannot rebut that presumption that law is still in effect.

45:45 - And that is true.

45:46 - Adversity is somebody disagrees with that.

45:50 - In this case, how would they appeal?

45:53 - Who has the right to appeal in this case?

45:56 - Where are the adverse parties?

45:59 - There's a stipulation right.

46:02 - In this case, there is, yes, Your Honor, and there's an agreement

46:05 - in this case that brings you before us.

46:09 - If there is a adverse ruling

46:12 - who has standing to appeal, you're both on the same side.

46:15 - There's no

46:17 - adverse party.

46:18 - You're sitting on the same side.

46:21 - Your honor, I would I would say that there is indeed

46:25 - and has been throughout the history of this litigation, true adversity.

46:29 - DHS was the only,

46:33 - party to raise a standing

46:35 - preliminary objection, and no one can accuse them

46:39 - of not having fully litigated that they won before this court.

46:44 - And it would have been fatal to our case.

46:46 - And if it had been reversed,

46:48 - sorry to cut you off when you were answering my own questions.

46:50 - I apologize, but I think, I'll speak for myself.

46:54 - I'm interested in hearing, your position on the Commonwealth Attorneys Act

47:00 - and the attorney general's role in this litigation back

47:03 - when this was before the Supreme Court,

47:06 - in their opinion, lengthy opinion, including multiple

47:10 - opinions by various justices.

47:13 - In footnote six, they talked about DHS requesting

47:16 - additional time to seek the attorney general's involvement.

47:21 - And then there was a delegation pursuant.

47:24 - As Justice Robson said in footnote six,

47:27 - there's a delegation under the Commonwealth Attorneys Act.

47:31 - So can you speak to the issues of the Commonwealth,

47:35 - Attorneys Act and the impact it has on this case?

47:38 - Your Honor, I don't purport to speak for the attorney general.

47:43 - My understanding of the delegation was that it was done

47:48 - in accordance with the provisions of the Commonwealth's Attorney.

47:52 - So sorry to cut you off again.

47:53 - I apologize for being a hot bench.

47:56 - But doesn't you say you

47:57 - don't speak for the attorney general, but didn't the attorney General assign

48:01 - the responsibility to speak for the attorney general

48:05 - to you,

48:08 - or to the DHS?

48:10 - Not at all, your honor. To the DHS.

48:12 - We did know the attorney general most definitively

48:16 - did not assign anything to, the,

48:20 - providers who are to DHS.

48:22 - DHS, who's sitting over there, your your, colleagues, your adverse parties.

48:27 - Your honor, I understand, but according to DHS, the office

48:30 - of Attorney General ultimately offered authorized

48:34 - the Office of Attorney General Counsel to defend the matter

48:37 - pursuant to section 204 C of the Commonwealth Attorneys Act.

48:41 - And I understand that you are on the other side of the V from the DHS attorneys,

48:46 - but shouldn't they?

48:49 - I mean, I would like your perspective

48:51 - on their responsibility to defend this, your honor,

48:56 - as this case has unfolded over the past

48:59 - six years, this court is now not writing on a blank slate.

49:03 - What is before this court is the mandate from the Pennsylvania Supreme Court.

49:09 - What it requires you to do is answer three questions and three questions only.

49:14 - First, what is the nature of the right

49:18 - that is at stake now, in this litigation?

49:22 - Is it a fundamental right which would you say is a fundamental right?

49:26 - Correct, yes.

49:27 - And DHS also says it's a fundamental right.

49:30 - Correct? Yes. Okay. So go on.

49:33 - I thought that the other two, if I may, just the other two questions

49:37 - that we have to ask, do we have to answer what are the other two?

49:40 - The other two are simply is there a sufficiently compelling state

49:44 - interest to support, the Medicaid coverage exclusion?

49:48 - And are there any.

49:50 - And on that one you say, no, that's right.

49:52 - And so does DHS.

49:53 - That's right. Okay.

49:54 - The third question and the third question is, are there less

49:58 - intrusive alternatives to advance any compelling state?

50:03 - And what are your competing answers?

50:05 - Our answers are the same on that. Your Honor.

50:07 - And actually, I would point out on that question, the Amica agree with us.

50:13 - The amicus brief submitted, by Mr.

50:16 - Die at pages 16 and 17,

50:20 - list numerous Commonwealth programs

50:24 - that advance the state's interests in maternal.

50:27 - I may, if I may, because your time is rapidly depleting.

50:31 - We'll set the ameche aside for a moment.

50:33 - But the three questions that we must answer,

50:36 - both of the adversaries are now saying we agree.

50:40 - But you came up and said, despite the fact that we agree,

50:44 - the DHS is still enforcing this act.

50:48 - Yes, that is correct.

50:49 - And it is only action on on the part of this court

50:53 - that can correct the ongoing injustice.

50:56 - Okay.

50:57 - So we would ask the court, so

51:00 - so what I'm failing to

51:03 - understand here

51:05 - and in his concurring opinion, Justice Work

51:09 - looks forward to vigorous advocacy on opposite sides,

51:13 - fleshing out the issues in front of us on the remand.

51:17 - We don't have that now, do we?

51:19 - We have both you and DHS saying we agree.

51:23 - So where do we go from here?

51:25 - Your Honor, the fact that.

51:29 - DHS cannot meet the standard

51:32 - is not evidence that they are rolling over and dying here.

51:36 - It's evidence that we have a strong case

51:39 - and that there is no defense that can be mounted.

51:42 - I'm sorry.

51:43 - You just said that they can't meet the standard.

51:45 - For what?

51:46 - I'm getting very confused by your position here today.

51:50 - The judge made it crystal clear.

51:53 - I'm sorry your.

51:54 - The burden is on DHS to meet the standard

51:59 - under the Equal Rights Amendment and the standard under

52:02 - the nondiscrimination clause in article one, section 26.

52:07 - They have not done it. They cannot.

52:09 - They're not trying to do it.

52:10 - Today is the whole point.

52:12 - And that's what we're questioning.

52:14 - What's there's no adversarial parties here.

52:17 - There's no controversy.

52:18 - There's no justifiable matter that that we're here deciding

52:23 - we have two people coming up

52:24 - actually asking for, I think maybe, I don't know,

52:26 - are you asking for a declaratory judgment now?

52:28 - I don't know what this is.

52:29 - Now, we are asking the court to grant our motion for summary relief,

52:34 - which we are entitled to because there are no,

52:39 - material disputes of fact.

52:42 - Even the Ameche agree with us that there are less intrusive alternatives.

52:48 - When you have no material issues of fact.

52:51 - I'm not sure that's correct.

52:52 - Because when you get into the analysis

52:55 - and by the way, I think there's only one issue before us.

52:57 - And I think Justice Mundy took great pains to make make clear in her, opinion,

53:03 - the one issue before us is, is is not whether there's a fundamental right.

53:07 - The issue before us is whether there's a right

53:10 - to receive taxpayer dollars as public funding for an elective.

53:16 - Procedure under Medicaid.

53:19 - That's that's the issue before us.

53:20 - And whether,

53:21 - by applying the strict scrutiny standards, there's a compelling state interest

53:25 - when you start getting into that whole analysis and you get to

53:29 - the issue of medical necessity, there is a question of fact.

53:32 - So that's not correct.

53:33 - To say there are no questions of fact here, but we're that's way down the road.

53:37 - I just don't know where we are here, your honor.

53:40 - Justice Mundy was in dissent.

53:43 - The majority opinion that binds this court states that,

53:48 - abortion, the abortion,

53:51 - Medicaid coverage exclusion is a sex based classification

53:56 - that is presumptively unconstitutional under the era.

54:01 - So the question excuse this is love.

54:03 - The question as as I stated, it was you look at the majority opinion

54:08 - or a dissenting opinion is whether,

54:13 - there is a right to taxpayer

54:15 - funding for an elective procedure for abortions under Medicaid.

54:20 - That's the question before us.

54:21 - And the court asks us to apply strict, strict scrutiny,

54:26 - to see and see if there's a compelling state interest.

54:28 - That's the question.

54:30 - Well, we disagree that you

54:31 - on the framing of the question, but that's a problem for you.

54:35 - I, I believe judge will have a question for you.

54:41 - Do you believe that DHS, what they're doing

54:43 - is not in accordance with, fundamental rights?

54:48 - You agree on that actually with DHS?

54:52 - And why don't you settle

54:54 - the case and withdraw it?

54:57 - They would not, Your Honor.

54:59 - The DHS would not withdraw it.

55:01 - Okay, then that's going to be a question that I have.

55:03 - And with that, I believe, you are well over your time,

55:07 - and we will let you off the hot seat for now, and we will see you back.

55:12 - And counsel for DHS.

55:26 - May it please the court.

55:27 - My name is Amy Thompson,

55:28 - and I am counsel from the Governor's Office of General Counsel,

55:31 - representing the Department of Human Services

55:34 - and the individual department and respondents,

55:36 - could you please speak louder or lean into the microphone?

55:39 - Absolutely.

55:40 - Your honor, I do.

55:41 - Excuse me, I have a question for it.

55:43 - Right out of the box.

55:44 - I understanding is that the AG's office, who is responsible to come into court

55:49 - and defend the enactment of any laws that have been enacted, assign

55:53 - that obligation, that duty that authority to to DHS.

55:57 - But how can you be doing that if you are

56:00 - now agreeing with the petitioners?

56:03 - You're not defending the law.

56:05 - You're standing back saying, I just agree with the petitioners.

56:08 - So, Your Honor,

56:09 - the Department of Human Services defended this statute before this court

56:13 - and before the Supreme Court on on arguments of standing

56:17 - and on the presidential effect of the fisher,

56:20 - which was also the basis of the Attorney General opinion

56:24 - on which the Department relied both before this court and before the Supreme Court.

56:29 - However, that Attorney General opinion noted

56:32 - that petitioners were attempting asking the court to overrule Fisher.

56:37 - That is what the Supreme Court did.

56:40 - So this the department went to the Supreme Court,

56:43 - defending the statute on precedent,

56:46 - based on Fisher's precedential effect and the department lost.

56:51 - However, the department also stated before the Supreme Court

56:54 - that it believed that the Pennsylvania Constitution

56:57 - supported a fundamental right to reproductive autonomy.

57:01 - Now, where we are is that the department is bound by the Supreme Court's decision,

57:06 - as both law of the case and law of the Commonwealth,

57:10 - applying the framework of the Equal Rights Amendment

57:14 - and the Equal Protection Clauses, as corrected by our Supreme Court,

57:18 - and consistent with the department's position about the fundamental right

57:22 - to reproductive autonomy, the Department has now concluded

57:26 - that the coverage exclusion violates the Equal Rights Amendment

57:30 - because it discriminates against the form of health care that is used.

57:34 - But I thought it was the AG's role to come in here and defend the law.

57:38 - Regardless of the fact of whether Fisher has been overruled.

57:41 - I'm not sure if that was plurality or majority, that part of the opinion. But,

57:47 - that doesn't

57:47 - change the role of the AG which was assigned to you.

57:51 - That. Yes.

57:52 - So you can see we're having trouble with with this scenario here.

57:56 - I understand, Your Honor.

57:57 - It was a majority of the court that overruled Fisher,

58:00 - and that was a key part of its of its mandate back.

58:02 - But but notwithstanding notwithstanding, it still doesn't change the role of the.

58:06 - AG in in defending the law, which for many years.

58:10 - I mean, it's the legislature that passed it.

58:13 - We had the legislature before us because we granted standing

58:16 - and then they were denied standing in the Supreme Court.

58:18 - Now, we've allowed them to argue today, but we don't have a party,

58:23 - representing the legislature.

58:25 - And should the AG then is there

58:29 - is there precedent for the AG to rescind the, delegation

58:35 - to the Office of General Counsel, or is, you know, should we,

58:42 - can we somehow

58:45 - reinstate eight intervenor status

58:48 - to the legislative

58:51 - parties here?

58:53 - Notwithstanding the Supreme Court's reversal of that order,

58:58 - or how is there a way for us to create a,

59:02 - or how should I put it that yes.

59:05 - Or is there an opportunity

59:09 - for AGC to yield back

59:14 - to the AG to defend this, the constitutional instead?

59:17 - Yeah.

59:18 - The constitutionality of the statute,

59:21 - which I think we need, we need someone on the other side

59:24 - who is a party

59:25 - advocating on behalf of the statute so we can fully form what we need to do here.

59:30 - Otherwise, you know, you can hear us.

59:32 - Yeah.

59:33 - Do you, do you agree with that or do you disagree and anyway. Yes.

59:38 - Or do you need to go back to Harrisburg and talk to your folks?

59:42 - Let me attempt to address all of your,

59:46 - first, I would note that the Commonwealth Attorneys Act,

59:50 - imposes a duty on the attorney general to defend the constitutionality

59:53 - of all statutes

59:54 - in the absence of a controlling decision by a court of competent jurisdiction.

59:59 - 175 That is what we have here, the Pennsylvania Supreme Court, as

01:00 - 07.437 law of the case and of the Commonwealth, has conclusively interpreted

01:00 - 10.616 the Equal Rights Amendment and the Equal Protection Clauses.

01:00 - 15.011 It is concluded that a statute that the Department is currently enforcing

01:00 - 17.656 is presumptively unconstitutional,

01:00 - 20.125 and it has determined that the coverage exclusion is a.

01:00 - 22.561 Thank you. I'm sorry. Excuse me. Better finish. Better.

01:00 - 23.762 Go ahead, go ahead.

01:00 - 28.834 No. It is determined that this the coverage exclusion is a classification

01:00 - 33.906 that is a non neutral classification and touches on a women's right

01:00 - 38.577 to make a woman on medical assistance, her right to make reproductive choices.

01:00 - 40.913 Okay. And now I'll say what I was going to say.

01:00 - 43.940 You said a key word presumptively unconstitutional.

01:00 - 46.418 That's that's why we're here.

01:00 - 49.154 Presumptively means there's still a question,

01:00 - 52.181 which is why you need to have the AG.

01:00 - 52.792 Okay.

01:00 - 55.818 Well, I'd like to hear the rest of your answer, please.

01:00 - 56.863 Certainly. Yes.

01:00 - 00.123 Your honor, as to the question about,

01:01 - 05.461 the department, in light of the Supreme Court's opinion,

01:01 - 11.267 concluded that the coverage exclusion was not narrowly tailored and necessary

01:01 - 15.238 to accomplish any of the stated government purposes

01:01 - 19.909 in section three, 202 of the Abortion Control Act, which is where you must look

01:01 - 24.681 to determine what, interests what to consider.

01:01 - 27.259 Under a strict scrutiny analysis.

01:01 - 27.560 Okay.

01:01 - 30.653 We understand the the legal question.

01:01 - 35.000 We may have differences of opinion, but there's a legal question.

01:01 - 37.836 Are procedural, if you will.

01:01 - 43.342 Question is, then how does the department believe

01:01 - 46.836 this can proceed forward without.

01:01 - 51.850 If it can without,

01:01 - 57.423 a someone in front of us arguing as to the

01:01 - 01.384 whether there is a compelling interest or how it should proceed.

01:02 - 05.621 I mean, this the Supreme Court sent it back to us for further proceedings.

01:02 - 08.958 And how do we engage in those further proceedings

01:02 - 12.295 if we don't have any controversy?

01:02 - 14.139 Is that our question?

01:02 - 16.742 Absolutely, Your Honor, and that was why, when the department reached

01:02 - 20.837 its conclusion, it provided a notice to this court on July 16th

01:02 - 24.316 that it did not believe that there was a compelling purpose

01:02 - 28.144 that was narrowly tailored and sufficient to justify the coverage exclusion,

01:02 - 31.323 and the Department stated that it would not oppose a Mickey

01:02 - 34.193 or any other action the court took, should it,

01:02 - 37.854 as it considered this matter, was that opinion shared over here

01:02 - 42.725 the the other man on the court, did the, did the department.

01:02 - 46.839 UGC also share that opinion with the attorney general at the time?

01:02 - 47.607 Okay. Yes.

01:02 - 50.700 The attorney general is aware of the department's opinion.

01:02 - 53.245 Okay. Our conclusion in light of what?

01:02 - 58.474 Of what they believe is the the the only room left given the the narrow,

01:02 - 02.712 decisions left to be made after the Supreme Court opinion.

01:03 - 06.492 And I guess we can assume, since we've not seen the attorney general emerge,

01:03 - 09.619 that the attorney General's office agrees with your position.

01:03 - 12.498 I cannot speak for the Attorney General's office, Your Honor.

01:03 - 15.567 However, I would note that we told them last year,

01:03 - 18.594 and again, we notified the court on July 16th

01:03 - 22.265 that this was the department's conclusion following the Supreme Court's opinion.

01:03 - 26.378 And I'll note that the court has chosen there are several options

01:03 - 30.582 the court can take in a circumstance where, at a certain stage of litigation,

01:03 - 35.845 the parties, or one party is, is not going to take a certain position.

01:03 - 40.592 I will note that the court appears to have followed the practice of the US.

01:03 - 43.653 Supreme Court of asking in a mikie

01:03 - 49.125 to step in and argue a legal position that is a routine

01:03 - 53.329 practice in the unusual circumstance where parties,

01:03 - 58.000 believe that, as here the department does,

01:03 - 02.305 that it will not oppose judgment entry entered into petitioner's favor.

01:04 - 05.684 But it's important to be clear that the department did not start

01:04 - 07.119 in this position.

01:04 - 09.188 The Department defended the statute.

01:04 - 10.756 So so let me just circle back.

01:04 - 13.292 And it's something that Mr.

01:04 - 15.427 Ritchie said. Am I getting it right? Pretty tricky.

01:04 - 16.095 Okay.

01:04 - 19.121 I'm very sensitive pronunciations of names, as you can imagine.

01:04 - 23.769 But she mentioned that while the department is now aligned

01:04 - 27.072 with petitioners that the act is unconstitutional,

01:04 - 30.099 in this instance, you're still enforcing it.

01:04 - 33.779 Yes. Your honor, we have an obligation to enforce

01:04 - 35.714 the statute because the statute is in place.

01:04 - 39.151 So right now the department is not providing medical assistance

01:04 - 42.178 coverage for abortions performed,

01:04 - 45.557 are sought by women who are on medical assistance,

01:04 - 49.018 except in the three narrow circumstances under the statute.

01:04 - 52.598 Even though you're saying it's unconstitutional, you're still enforcing

01:04 - 56.359 it. We agree, based upon the Supreme Court's decision.

01:04 - 58.037 Yes. Your honor,

01:04 - 01.564 the situation is somewhat akin to in at the federal level,

01:05 - 04.834 the Windsor versus the United States decision

01:05 - 08.881 where the government agreed, with that, the

01:05 - 13.552 that DOMA was unconstitutional, but nonetheless, had a duty.

01:05 - 14.653 I have a question.

01:05 - 17.680 Oh, yes, Your honor.

01:05 - 20.158 We have this is just goofy.

01:05 - 21.593 I have a question. It's okay.

01:05 - 25.530 Okay, I, I know there was a discussion about DHS

01:05 - 28.858 did not want to agree with petitioner's to dismiss the case.

01:05 - 32.028 What is your thought process on that?

01:05 - 33.772 Did you hear that? Yes. Yes.

01:05 - 36.799 Your honor, I the question concerned the,

01:05 - 39.945 disinclination to dismiss the case.

01:05 - 41.546 I actually can't speak to that.

01:05 - 44.573 Your honor, I wasn't aware, that that,

01:05 - 45.919 occurred.

01:05 - 49.087 I my understanding is that the department feels,

01:05 - 52.891 because it is a statute, that it has an obligation

01:05 - 57.019 to comply with the statute unless and until a court rules that unconstitutional.

01:05 - 01.366 However, the Department also believes that based on the reading

01:06 - 03.168 of the Supreme Court's opinion

01:06 - 05.804 and a consideration of the strict scrutiny standard,

01:06 - 09.131 which requires looking carefully at the circumstances

01:06 - 12.969 in which the coverage exclusion exists and the stated interests

01:06 - 14.213 that those interests are,

01:06 - 17.149 that the exclusion is not narrowly tailored and necessary,

01:06 - 21.143 and that there are many less restrictive means which we put into our brief.

01:06 - 23.221 And so my question

01:06 - 27.592 is, you had said in something you filed with the court

01:06 - 30.853 that you would oppose a solution of somebody

01:06 - 34.032 stepping in and

01:06 - 36.668 I have two possible scenarios that I want to know

01:06 - 38.570 whether you would object to them or not.

01:06 - 43.041 One is a little more sensitive because we had allowed the legislators

01:06 - 46.979 to have intervenor status, and the Supreme Court said we were wrong.

01:06 - 50.039 So then the legislators no longer have intervener status.

01:06 - 55.454 But your change of position was only after the Supreme Court's opinion.

01:06 - 00.349 So and at the same time, they want to have the discussion on both sides.

01:07 - 03.829 So there's a risk.

01:07 - 07.499 I would never want us to appear like we were disrespecting the Supreme Court

01:07 - 11.603 when they specifically already said the legislators couldn't be interveners.

01:07 - 13.238 But at the same time, there's been a change

01:07 - 16.932 in circumstances and circumstance change and circumstances change plans.

01:07 - 21.847 So would you object if we were to order them to be interveners?

01:07 - 22.914 Again?

01:07 - 26.952 I will note that the department did not object to intervention before this court.

01:07 - 30.646 The department took no position on intervention before the Supreme Court.

01:07 - 34.393 So I,

01:07 - 37.963 I think my question would, would be, I think the standard

01:07 - 41.357 the Supreme Court laid out on intervention has to do with standing

01:07 - 45.094 and the inability of the legislatures to show that they were harmed.

01:07 - 48.464 But consistent with our position,

01:07 - 53.602 I, I did that the department would likely take no position on intervention.

01:07 - 56.248 If so, the court actively objected to it.

01:07 - 59.851 You would just take no position and you wouldn't go as far as consenting.

01:07 - 02.287 Of course, I would need to consult with my client.

01:08 - 03.789 And, your Honor, how I got to put it on the spot.

01:08 - 08.126 And then the other is, the attorneys general office.

01:08 - 09.327 This is my my word.

01:08 - 11.897 But they delegated their duties.

01:08 - 15.901 And if they were to UN delegate them, would there be any objection

01:08 - 18.403 in that regard? So then the Attorney General's office

01:08 - 20.496 could be on the other, other side of the V.

01:08 - 24.009 I, your honor, I

01:08 - 27.112 don't think it's necessary, given the fulsome briefing and all of the time.

01:08 - 30.215 However, once again, I think the Department would would not

01:08 - 34.219 oppose or take no position on the attorney General's involvement.

01:08 - 37.689 And I think it is it's interesting that you don't think it's necessary,

01:08 - 41.250 because I think what our hang up and concern is, is,

01:08 - 46.031 how the case proceeds in our original jurisdiction.

01:08 - 50.392 If the burden holders, which is DHS, has no will

01:08 - 54.106 to establish the burden, who's going to present that evidence?

01:08 - 56.575 Who's going to build the factual record?

01:08 - 59.478 I think I have two answers to your to your question, Your honor.

01:08 - 02.638 First is that, the court has chosen as,

01:09 - 05.741 as happened somewhat,

01:09 - 09.211 not infrequently before the High Court to ask the A

01:09 - 14.049 to step into the role of arguing in defense of, the,

01:09 - 17.129 in the strict scrutiny analysis.

01:09 - 21.466 But I would also, state that I do not believe there are any material facts here

01:09 - 24.493 in dispute for purposes of the strict scrutiny analysis.

01:09 - 28.173 We are here on a standard of review where there must be

01:09 - 31.009 genuine disputes about material facts.

01:09 - 34.069 The question about the coverage exclusion under the Equal Rights Amendment

01:09 - 39.008 is whether it, discriminates by not providing coverage

01:09 - 43.488 for a reproductive service used exclusively by women while providing

01:09 - 46.515 coverage for reproductive services and health care used by men.

01:09 - 49.161 The department

01:09 - 53.265 that that is something that a fact that the department knows

01:09 - 57.326 because they are the entity that enforces the medical assistance program,

01:09 - 00.639 and that is the only material fact necessary.

01:10 - 04.609 Well, I think there's a question of material fact regarding medical necessity.

01:10 - 07.979 So for instance, and this doesn't need to be resolved

01:10 - 11.574 today, this could be an issue that was, fleshed in the future.

01:10 - 15.244 But let's say that elective abortions.

01:10 - 20.292 So outside of the the three exceptions in the statute, elective abortions

01:10 - 25.363 were paid for with taxpayer funds, what is medically necessary

01:10 - 29.968 and what other elective procedures then would be covered under Medicaid.

01:10 - 34.163 So I think there's a question of fact regarding medical necessity.

01:10 - 38.634 I think, respectfully, Your Honor, that I think this case is

01:10 - 40.645 I think that is not this case.

01:10 - 45.608 This case concerns the covers exclusion, which is a prohibition on the department

01:10 - 49.678 covering certain forms of health care used exclusively by women,

01:10 - 53.992 and denying women on medical assistance the full right of their fundamental

01:10 - 57.720 reproductive autonomy or denying coverage, I should say, that allows

01:10 - 00.165 women on medical assistance to exercise their full

01:11 - 01.666 right to receive reproductive economy.

01:11 - 04.693 That is the only question before this court right now.

01:11 - 05.805 And I do not.

01:11 - 08.540 So I do not believe any factual development on that question.

01:11 - 09.574 Well, it would be necessary.

01:11 - 12.434 I would just note that I as I said before, I agree with,

01:11 - 14.679 Judge Wallace

01:11 - 18.516 that it's going to require that in the analysis and analysis is

01:11 - 21.710 whether we were asked to do is apply some scrutiny.

01:11 - 24.189 Is there a compelling state interest?

01:11 - 24.590 Okay.

01:11 - 30.128 And I, I know you're way over I yes, I know I'm going judge.

01:11 - 31.796 Well, yeah.

01:11 - 32.964 Well, please.

01:11 - 35.166 And the five minutes have become 15.

01:11 - 37.269 So two things.

01:11 - 40.763 First, the attorney general hasn't revoked the DHS,

01:11 - 44.700 obligation to defend this case today.

01:11 - 49.471 As of today, you still have the, delegated obligation to defend this case.

01:11 - 51.250 Yes. Okay.

01:11 - 53.285 Number two,

01:11 - 57.188 where the Commonwealth Attorneys Act has an obligation

01:11 - 00.215 which appears to have been delegated to defend

01:12 - 03.819 the laws of the Commonwealth.

01:12 - 07.065 I'm going to pose a way through

01:12 - 09.734 what I personally can't speak for my colleagues.

01:12 - 13.796 See, is a problem with not defending a statute.

01:12 - 19.134 Is is the obligation to defend a constitutional right

01:12 - 22.747 a constitutional provision?

01:12 - 25.050 Does that trump

01:12 - 27.285 the obligation to defend a statute?

01:12 - 30.188 In other words, you're fulfilling your obligation.

01:12 - 34.450 Under the Commonwealth Attorneys Act by defending a fundamental right,

01:12 - 37.929 even if it means that a law is found

01:12 - 40.923 not to be valid or not to be enforceable.

01:12 - 42.201 I would agree with that.

01:12 - 44.469 And I believe this court's precedent supports that.

01:12 - 47.172 I would point the court to ballroom versus Commonwealth.

01:12 - 49.674 The decision of this court from 2009,

01:12 - 53.378 in which the court stated that the attorney general's duty can rise

01:12 - 57.315 no higher than his sworn obligation to uphold and defend the state

01:12 - 00.218 and federal constitutions. What's the state for that?

01:13 - 04.613 That is 984, 8582.

01:13 - 06.858 Insight. 588.

01:13 - 08.193 Thank you so much.

01:13 - 10.362 Thank you. And then one final question.

01:13 - 14.265 The easiest question I apologize in this would be the easiest question

01:13 - 15.367 asked all day.

01:13 - 17.769 I missed your name. Can you repeat your name, please?

01:13 - 20.038 Yes. Good morning, Your Honor. My name is Amy Thompson.

01:13 - 20.373 Thank you.

01:13 - 23.799 Easiest question you've got all day is this question I've ever asked?

01:13 - 25.744 I said, thank you, Your Honor.

01:13 - 26.869 Thank you very much.

01:13 - 28.347 Thank you.

01:13 - 31.373 Welcome.

01:13 - 41.893 Good morning.

01:13 - 43.228 May it please the court?

01:13 - 47.156 David, I, I am here representing the House Republican leaders.

01:13 - 50.793 Thank you very much for the invitation and the opportunity

01:13 - 53.962 to come in here and stand and defend,

01:13 - 56.341 the, Pennsylvania Abortion.

01:13 - 59.368 Control Act's funding prohibition.

01:13 - 02.447 We would ask that,

01:14 - 05.083 at the beginning, we would ask that petitioner's application

01:14 - 08.544 for summary relief be denied primarily for three reasons.

01:14 - 13.057 First, we do believe that there is a compelling interest

01:14 - 17.186 that the Commonwealth has in the, in the, in the statute.

01:14 - 22.090 Secondly, we do believe that there are numerous factual disputes

01:14 - 27.029 that have to be resolved through zealous testimony, zealous advocacy

01:14 - 31.033 and and, rigorous, defense.

01:14 - 35.037 And then, the third reason, quite honestly, is because,

01:14 - 39.107 honestly, the department just did not do its job. And,

01:14 - 43.178 if I, if I may, like to

01:14 - 46.090 begin by touching up

01:14 - 49.117 on some questions asked and answered.

01:14 - 53.388 Regarding the attorney general, I would like to point out that,

01:14 - 58.660 the attorney general who delegated responsibilities, DHS

01:14 - 02.097 and then DHS, his,

01:15 - 05.601 response and their letter on July,

01:15 - 08.780 I forget the date, but that letter on that one

01:15 - 14.185 to the former attorney general, the attorney general we currently have

01:15 - 17.646 has been in week has been in office for, I think, two weeks.

01:15 - 21.459 Maybe maybe two weeks and a day.

01:15 - 23.328 Is that attorney general, do you know,

01:15 - 26.355 aware of their position?

01:15 - 28.132 I'm sorry.

01:15 - 32.670 Do you know if the new attorney general is aware of the position of DHS in this?

01:15 - 38.133 I don't I have no idea, Your Honor, but, I do know,

01:15 - 42.471 that the attorney general,

01:15 - 47.418 can withdraw delegation

01:15 - 50.445 simply because it is.

01:15 - 55.050 The attorney general's job,

01:15 - 56.995 his statutory duty.

01:15 - 00.022 Let's assume they can't, that he can.

01:16 - 03.091 He didn't,

01:16 - 06.037 two weeks in, two weeks,

01:16 - 09.464 into his, into his his term,

01:16 - 13.435 with possibly not this case being,

01:16 - 17.739 at the forefront of of his, to do list.

01:16 - 20.652 What should we do?

01:16 - 22.287 Well,

01:16 - 24.355 I don't know, to be honest with you, I don't know

01:16 - 27.382 what powers the Commonwealth Court has in terms of.

01:16 - 31.887 And I believe I heard, one of the judges say direct the Commonwealth.

01:16 - 32.498 I'm sorry.

01:16 - 35.490 Direct the attorney general to intervene.

01:16 - 38.961 If the court has that ability,

01:16 - 42.307 then that certainly is is one option.

01:16 - 44.576 Certainly an invitation to the attorney general

01:16 - 48.446 might not be an authority to direct the, attorney general

01:16 - 52.674 who's delegated the authority to defend the statute to DHS.

01:16 - 55.553 You think we have the authority to say no?

01:16 - 58.580 You have to come in here and defend this.

01:16 - 01.092 I'm sorry. Do you have the authority to say that to the.

01:17 - 04.495 We have the authority to force the attorney general

01:17 - 08.223 who has delegated the authority to defend this statute to DHS.

01:17 - 11.994 Do we have the authority to compel the Attorney general to show up here?

01:17 - 15.573 To be honest, Your Honor, I don't know.

01:17 - 17.675 That seems like a,

01:17 - 20.078 significant separation of powers issue.

01:17 - 22.447 It would seem, he was just.

01:17 - 23.748 Counsel was just borrowing.

01:17 - 26.117 He said he thought one of us said direct.

01:17 - 28.386 So that's why he mentioned that word.

01:17 - 30.488 He wasn't his proposition.

01:17 - 31.756 But you're right. We.

01:17 - 35.117 Yes, we could at least notify him

01:17 - 38.720 of the ongoing issue or whatever.

01:17 - 45.961 If we can't direct, So,

01:17 - 50.708 so I do believe that that the attorney general,

01:17 - 53.802 has the authority to yank

01:17 - 58.416 its directive to DHS and say I am the attorney general.

01:17 - 00.418 Now, it is a new attorney general.

01:18 - 03.812 I disagree with the opinion of the former attorney general.

01:18 - 06.991 I am now going to,

01:18 - 11.286 vigorously defend the constitutionality of the statute, as is my job.

01:18 - 16.058 So I do believe that that the AG has, has the right to do that.

01:18 - 18.936 Counsel, have your clients

01:18 - 22.373 consulted with the AG on this issue to kind of give them a heads up?

01:18 - 24.642 Hey, we're going to a court in a couple weeks.

01:18 - 27.669 I welcome to the job, but I got this out there.

01:18 - 33.575 I know that there has been, a communication, to the attorney general's office.

01:18 - 38.080 Indicate to the, to the office that,

01:18 - 42.160 we are going to be, here today.

01:18 - 45.187 And, your name may very well be invoked.

01:18 - 49.467 Now, this may be hot off the presses.

01:18 - 53.095 I don't know if it's caught up with the parties yet, but last night.

01:18 - 54.472 Yes. Afternoon. Late.

01:18 - 57.933 We received a filing from your client's

01:18 - 03.247 contemporaries across the Capitol invoking the attorney

01:19 - 07.175 general, suggesting maybe this should come to pass.

01:19 - 10.455 Yes. No, I did receive that.

01:19 - 13.482 What's your reaction to that?

01:19 - 17.228 I think it was an excellent brief.

01:19 - 20.064 Very well, thought out and,

01:19 - 22.633 and and reasoned,

01:19 - 26.328 and I agree wholeheartedly that, one,

01:19 - 31.275 The attorney general can be brought

01:19 - 35.670 in, and two, I, I agree as well that,

01:19 - 41.610 with the Senate's position that right now there are no true opposing parties.

01:19 - 45.180 We are here, but unfortunately, we're not a party.

01:19 - 48.960 So at this point, as we do anything council

01:19 - 51.863 without the attorney general being present, I'm sorry.

01:19 - 55.066 Can this court make any ruling without the attorney general being present?

01:19 - 56.267 Absolutely.

01:19 - 59.394 As, as the Senate brief suggest, this court can say

01:19 - 04.108 we now have no, no true conflict of interest.

01:20 - 05.634 We have no true.

01:20 - 09.147 Diverse parties.

01:20 - 11.115 I think you misunderstood my question.

01:20 - 15.710 Can we get to the merits without the attorney general being present? No.

01:20 - 19.957 And and another reason that we can't do that is simply

01:20 - 23.218 because we don't have a true factual record.

01:20 - 26.588 And the Supreme Court did give us a mandate.

01:20 - 31.193 And actually, they didn't give it to us because they kicked us out.

01:20 - 34.996 But the Supreme Court did give two, DHS

01:20 - 39.334 a mandate to, to establish a record through,

01:20 - 44.005 zealous advocacy, I think, to be rigorously defended.

01:20 - 46.651 And we've not seen that.

01:20 - 51.513 And we need a record because there are factual issues that have to be resolved.

01:20 - 53.991 Is it really in the best interest?

01:20 - 55.626 Well, there was a stipulation.

01:20 - 01.089 So how how would you characterize the stipulation that was entered, which

01:21 - 04.435 it would serving,

01:21 - 07.805 if I may, self-serving it not a stipulation

01:21 - 11.867 that was a result of zealous advocacy by two adverse parties.

01:21 - 16.171 The case before us, dealt with quadro and and

01:21 - 20.141 having done a little bit of family law, those quad rows

01:21 - 24.222 and those divorce settlements, they are zealous of zealously advocate

01:21 - 27.249 aided by both parties, and they come to an agreement.

01:21 - 30.352 And that agreement is submitted to the court.

01:21 - 33.197 We don't have an agreement submitted to the court

01:21 - 36.133 that was a result of zealous advocacy.

01:21 - 38.736 And okay, counsel, that's an excellent segue.

01:21 - 44.008 Now. So we've been talking about procedure for what seems to be an eternity.

01:21 - 46.711 Could you get to the merits? Could you get to the compelling interest?

01:21 - 51.206 Now that requires us to say, yeah, this law is is constitutional.

01:21 - 53.942 Well, I thank you. I can and,

01:21 - 56.020 right up front, I

01:21 - 59.080 would say that the first compelling interest that the Commonwealth has

01:21 - 04.729 is right in the Constitution article one, section two, tells us that the people

01:22 - 10.458 founded this government, for the peace, safety and happiness of the people

01:22 - 14.329 putting right up front that the government has to provide safety.

01:22 - 17.842 That's interesting that you start off with there,

01:22 - 22.037 because I note in the Abortion Control Act, there's a couple of exceptions

01:22 - 25.049 rape, incest, which we

01:22 - 28.076 I think all agree on all sides

01:22 - 32.490 that those are appropriate to avert the death of the mother.

01:22 - 34.225 Again, we all agree on that.

01:22 - 37.595 But there's not permutations that go on that, say

01:22 - 40.622 in the instance of an ectopic pregnancy,

01:22 - 43.601 is there a compelling interest to prevent

01:22 - 47.462 an abortion paid for by medical assistance in that realm?

01:22 - 51.375 If I understand you correct

01:22 - 55.746 your question correctly, Your Honor, it's miners medical assistance.

01:22 - 56.715 Is medical assistance

01:22 - 00.208 appropriate to pay for an abortion, unlike an ectopic pregnancy?

01:23 - 01.353 You know what that is?

01:23 - 04.755 I believe so, because that would be a, a pregnancy

01:23 - 10.552 which begins and where the fetus develops inside the fallopian tube.

01:23 - 15.099 And and that would be a real hazard and danger to.

01:23 - 18.669 Well, they don't they don't necessarily the death of the mother.

01:23 - 22.230 But there's, there's arguments here because

01:23 - 25.967 because it is a medical judgment call.

01:23 - 29.747 I can't say,

01:23 - 33.508 that it would not be considered

01:23 - 37.688 so hazardous to, to the mother that it would not be covered.

01:23 - 39.457 What about fatal feet?

01:23 - 42.460 Fetal fetal abnormality.

01:23 - 44.762 Fatal fetal abnormality.

01:23 - 50.825 Again, the fetus has just a brain stem and will not survive outside the womb.

01:23 - 54.705 Does medical assistance cover that?

01:23 - 55.107 Again?

01:23 - 58.533 I can't answer that question because to to be honest,

01:24 - 01.746 I I'm not a physician.

01:24 - 04.773 I'm not totally

01:24 - 07.485 familiar with

01:24 - 10.287 the severity of all the medical complications

01:24 - 13.982 that can and and and do, persist.

01:24 - 16.027 However, understand, counsel, I'm.

01:24 - 18.963 I just wanted to ask you to go back to your original argument

01:24 - 21.990 then, since you're at

01:24 - 23.801 you were starting to say

01:24 - 27.195 why there is a why there is a computer, why you didn't get to finish.

01:24 - 29.106 Thank you.

01:24 - 31.909 I would point to the Abortion Control Act

01:24 - 35.837 as further, justifications for our compelling interest.

01:24 - 40.442 And these, again, would need to be fleshed out through testimony

01:24 - 41.852 to create a solid record.

01:24 - 46.414 For instance, 3202C the Abortion Control Act

01:24 - 51.553 tells us that all common and statutory law shall be construed to,

01:24 - 55.256 to extend equal protection of the laws to the unborn

01:24 - 58.426 and to encourage childbirth over abortion.

01:24 - 01.663 3202D tells us that,

01:25 - 05.767 the citizens have a right of conscience,

01:25 - 10.638 and that no person shall be compelled to subsidize elective abortions.

01:25 - 13.017 So those are two,

01:25 - 16.044 two key provisions, in my opinion,

01:25 - 19.080 that provide the Commonwealth with a,

01:25 - 22.126 a severe obligation,

01:25 - 26.521 that the the Commonwealth is obligated to protect the citizens and their,

01:25 - 29.533 rights of conscience, those rights of conscience founded

01:25 - 32.870 in the Constitution, of course, and the Commonwealth's

01:25 - 35.897 obligation to,

01:25 - 39.134 defend and extend to the unborn the equal protection of the laws.

01:25 - 42.279 So we believe that there there is

01:25 - 45.306 a true, compelling interest at stake.

01:25 - 48.886 And we need we require

01:25 - 51.913 and the Supreme Court was anticipating,

01:25 - 54.992 a solid record being established,

01:25 - 58.019 upon which to, to make its decision.

01:25 - 01.432 And if I may, the the solid record that

01:26 - 06.427 the Supreme Court, is looking for has not been examined.

01:26 - 10.174 Yes. The Supreme Court did,

01:26 - 13.935 overrule, Fisher on the era.

01:26 - 19.483 However, Fisher never looked at that at the facts of what is

01:26 - 23.478 and what is not covered by medical assistance for men and for women.

01:26 - 26.247 Fisher never looked at those at those facts.

01:26 - 28.392 And this Supreme.

01:26 - 31.953 Court has never had the opportunity to do so either. And,

01:26 - 37.701 by the department's dereliction of duty, we don't have a record

01:26 - 42.030 that you rightfully deserve to make an honest decision on.

01:26 - 47.077 So, we believe that there is a true, compelling interest.

01:26 - 47.946 Interest?

01:26 - 51.182 We believe that there is a true factual dispute,

01:26 - 54.676 not only in what medical assistance covers and what they don't cover,

01:26 - 57.879 and whether that does, equal,

01:26 - 00.724 different treatment for men and women.

01:27 - 03.985 But there's also, factual disputes about,

01:27 - 08.756 the need and necessity of abortion and the health and safety of abortion

01:27 - 12.660 and claims being made about abortion being safer than childbirth.

01:27 - 16.807 And, and there are, competing, claims

01:27 - 19.834 made by, by several of the MEP,

01:27 - 23.581 about the need, of abortion

01:27 - 27.909 and how it benefits, certain communities, particularly the black community.

01:27 - 31.679 There are, eight black women who filed an MEP,

01:27 - 34.858 a brief they have severe,

01:27 - 39.997 factual disputes with the allegations that abortion is needed

01:27 - 42.991 by the black community and benefits the black community.

01:27 - 46.837 They they strenuously object to that and want a record made of that use.

01:27 - 48.463 You think that amicus,

01:27 - 51.909 who are not intervenors,

01:27 - 54.936 can create a factual dispute?

01:27 - 57.481 Excuse me.

01:27 - 00.508 Take your time.

01:28 - 05.789 And amicus,

01:28 - 08.816 who are intervenors may not be able to,

01:28 - 13.597 stand up to the bar and, and raise questions.

01:28 - 16.834 And we're not those who are not who are not intervenors.

01:28 - 21.796 However, however, those who are, able to,

01:28 - 26.834 press through with discovery and take this to trial and,

01:28 - 32.116 and truly present an adversarial process can absolutely bring those people in and,

01:28 - 36.978 and put on that testimony as evidence which the Supreme Court needs.

01:28 - 42.293 Am I correct that amicus are supposed to confine their help to the court?

01:28 - 46.497 A friend of the court, are they our amicus supposed to confine

01:28 - 50.058 their arguments to those arguments which have been raised by the parties?

01:28 - 54.038 Yes. So isn't a lot of what

01:28 - 57.031 we're hearing outside the contention of the parties?

01:28 - 02.613 In other words, is it a little mission creep because some folks were were

01:29 - 06.307 said, were told by the Supreme Court, you can't be intervenors.

01:29 - 10.845 And now they're essentially as amicus acting as intervenors?

01:29 - 19.620 I guess that that's kind of the way it looks.

01:29 - 22.924 And but to be honest,

01:29 - 26.961 it's not our fault. And,

01:29 - 29.473 and and counsel, I'm just

01:29 - 32.500 I guess I'm not clear about that.

01:29 - 33.712 Are you finished?

01:29 - 35.245 Okay, about that question?

01:29 - 38.349 Because I'm not sure what is in the make it brief

01:29 - 41.376 so that it hasn't been raised by the process.

01:29 - 45.413 The there's a lot of focus on the serious health,

01:29 - 49.016 physical health, mental health, some of which you address. Yes.

01:29 - 52.320 Issues which need to be addressed

01:29 - 57.067 and already have been raised have been in the briefs of the party.

01:29 - 59.837 So I'm not sure where we're getting this.

01:29 - 03.207 Well, are you saying you think there's something that was raised in those?

01:30 - 06.043 No, no, I was simply,

01:30 - 09.070 responding to Judge Wolf's question about, technically,

01:30 - 13.441 are a Mickey able to raise issues not raised by the parties?

01:30 - 15.419 And technically, no.

01:30 - 17.654 And Mickey is not.

01:30 - 20.858 But we can certainly look through the briefs, and we know what issues

01:30 - 23.727 have been raised by the parties which are on that side.

01:30 - 25.829 And the Mickey. Okay.

01:30 - 30.024 Do you want to just quickly sum up, you are over your time, I apologize.

01:30 - 31.124 No, that's.

01:30 - 34.862 Yes. In summary,

01:30 - 38.399 the application for summary relief needs to be denied.

01:30 - 43.380 And this case, should be dismissed as is thoughtfully

01:30 - 46.974 and are well presented in the Senate's brief.

01:30 - 51.446 Absent that, it should absolutely be set for trial.

01:30 - 54.782 And we absolutely need to establish a robust,

01:30 - 00.855 discovery process where the issues can be,

01:31 - 05.493 vigorously defended and zealously advocate it.

01:31 - 07.438 And we don't have that.

01:31 - 09.306 This court,

01:31 - 11.341 needs to have that.

01:31 - 13.177 You deserve to have that.

01:31 - 17.138 And certainly the Supreme Court was expecting to have that.

01:31 - 18.949 Thank you for your time.

01:31 - 21.976 Thank you very much.

01:31 - 29.259 And I wish I had more than one minute.

01:31 - 32.286 I am sure there is no basis

01:31 - 37.868 for denying relief after six years on the speculative possibility

01:31 - 41.629 that perhaps somewhere, someone will come forward

01:31 - 47.435 and magically erase all of the less intrusive alternatives

01:31 - 51.506 that everybody agrees exist

01:31 - 54.852 and the existence of those less intrusive?

01:31 - 57.187 I'm going to jump in real quickly.

01:31 - 00.257 So part of my concern is, and this is tricky,

01:32 - 04.285 so maybe even the people listening at all, it'll shed some light on this for them.

01:32 - 07.588 We're spending a lot of time thinking about the Abortion Act,

01:32 - 10.124 but we haven't talked at all about,

01:32 - 12.936 the Medicaid Act.

01:32 - 14.838 And so the Supreme Court.

01:32 - 17.865 So the Pennsylvania Supreme Court has said

01:32 - 22.637 the Pennsylvania Supreme Court explained Pennsylvania's Medical Assistance.

01:32 - 26.974 Assistance Program, which is designed to provide medical

01:32 - 31.445 assistance to certain individuals who cannot afford to pay

01:32 - 36.460 for necessary medical services, was created pursuant to the public

01:32 - 40.421 welfare Code and in accordance with the Federal Medicaid Act.

01:32 - 44.902 That sentence alone, to me, indicates that there's going to be questions

01:32 - 48.129 about what are necessary medical services.

01:32 - 51.308 So medical necessity

01:32 - 54.811 is addressed within the text of the Abortion Control Act.

01:32 - 58.773 Your honor, I don't believe in section 3204.

01:33 - 03.220 This court has done everything

01:33 - 08.883 it could do to extend, to the a Mickey,

01:33 - 14.965 the functional status of intervenors and given them briefing and arguments.

01:33 - 18.859 Seven adverse briefs to the position

01:33 - 21.972 that my clients have taken have been accepted by this court.

01:33 - 24.174 And there's an eighth one in the wings.

01:33 - 28.145 Any concern about the statute not being vigorously

01:33 - 32.974 defended has been cured, by the way that this court has invited

01:33 - 36.544 and accepted those dissenting voices.

01:33 - 37.921 Question for you real quick.

01:33 - 41.282 So let's assume for argument's sake,

01:33 - 46.854 that we disagree with your application here and deny you some relief.

01:33 - 49.523 What do we do then? What's next?

01:33 - 52.803 How's the trial look?

01:33 - 55.830 Well, Your Honor,

01:33 - 59.343 at that point,

01:33 - 02.813 the factual, the very few facts

01:34 - 07.050 that matter in this case, and there are very few of them, really.

01:34 - 10.087 I think the only dispositive fact is,

01:34 - 13.581 are there any less intrusive alternatives

01:34 - 18.295 to coercing women to continue pregnancies against their will?

01:34 - 21.389 I agree completely that if that's the only fact

01:34 - 26.227 you have agreement, even from the adverse Mickey,

01:34 - 30.173 even from them, that there are plenty of programs out now,

01:34 - 33.243 we all disagree about what the best one is,

01:34 - 35.779 but you don't need to determine what the best one is.

01:34 - 38.315 I, I have a more fundamental question.

01:34 - 40.917 It goes to,

01:34 - 43.944 I guess, procedure

01:34 - 46.981 when we go in the Harrisburg

01:34 - 49.593 in one of our courtrooms in the PJC,

01:34 - 54.055 and come into court to have the trial, who's sitting where,

01:34 - 58.325 your honor, there's no basis for a trial.

01:34 - 00.370 Well, that's what we have to decide.

01:35 - 01.538 If we if we decide.

01:35 - 06.133 But but assuming we disagree with you, how does that trial work?

01:35 - 10.938 The joint stipulation of Fact is controlling and conclusive.

01:35 - 14.508 So you drop that on our desk and we have to accept it.

01:35 - 18.488 Well, we apply a lot of those facts forward association versus tax

01:35 - 21.515 review board Tyson versus Commonwealth.

01:35 - 25.195 You know, it is controlling and conclusive

01:35 - 28.923 and under, what the Supreme Court has,

01:35 - 32.102 has given this court in its mandate

01:35 - 35.830 is almost entirely a question of law.

01:35 - 39.076 And there really is

01:35 - 42.846 not a lot of factual development that needs to be done.

01:35 - 47.350 And when I hear the words, Rob, robustness discovery process,

01:35 - 51.812 I think what that tells us is that what our opponents have in mind

01:35 - 56.960 is further delay every single minute

01:35 - 01.021 that goes by opponents, not opponents, not opponents.

01:36 - 02.999 Amici. Amicus.

01:36 - 04.000 Right? Yes.

01:36 - 06.636 Although they do, they their position is.

01:36 - 08.405 And that's mission creep.

01:36 - 09.706 That's mission creep.

01:36 - 14.535 Where a amicus acts as an intervener.

01:36 - 19.740 And then we are running afoul of the Supreme Court, right?

01:36 - 24.245 Yes. And,

01:36 - 26.990 the you said it's legal mainly.

01:36 - 30.851 And I said, well, wait, the Supreme Court wanted a factual record,

01:36 - 34.054 and you accomplished that with the stipulation,

01:36 - 35.832 right? Yes.

01:36 - 41.362 So in your position, is that on remand from the Supreme Court,

01:36 - 47.377 the mandate from the Supreme Court has been fulfilled, and now the judgment

01:36 - 51.238 should be honored summarily, based on the parties submission.

01:36 - 53.416 Thank you, Your Honor. Yes, exactly.

01:36 - 57.754 And, you know, I return to the harm that the coverage exclusion is doing

01:36 - 02.283 because it hasn't, received the focus that it deserves

01:37 - 07.664 every day that coverage ban is in effect, women are being forced.

01:37 - 10.567 And so,

01:37 - 12.335 I just would appreciate

01:37 - 15.462 if you could just ask that question.

01:37 - 16.506 Answer the question.

01:37 - 18.708 What would the trial look like?

01:37 - 22.703 Because we have the issue of compelling state interest,

01:37 - 26.473 which I don't think is answered just because two

01:37 - 31.178 now two parties on the same side want to agree to that.

01:37 - 34.281 And then we have the interest of,

01:37 - 38.562 you know, playing strict scrutiny and medical necessity.

01:37 - 40.864 So I'm just there's no other side.

01:37 - 44.058 If you could just concede that that would help me, your honor.

01:37 - 49.472 The legal issues have been, in the words of, Justice Donohue.

01:37 - 52.967 Fulsomely briefed 300 pages of briefing

01:37 - 56.103 just on remand before this court.

01:37 - 59.816 The compelling state interest and less

01:37 - 02.843 intrusive alternatives have been thoroughly briefed.

01:38 - 05.021 What they argued today.

01:38 - 07.991 I believe we understand your position.

01:38 - 13.530 And, we've given a great deal of time to all the arguments here today.

01:38 - 17.057 It's a very complicated and complex sort of,

01:38 - 20.628 situation in many ways,

01:38 - 24.474 depending on how you view it and many views here.

01:38 - 28.278 So I want to thank you all very, very much for the arguments today.

01:38 - 30.447 You've been of great assistance.

01:38 - 33.974 And, we will take this under advisement.

01:38 - 36.486 Thank you very, very much.

01:38 - 39.055 Yes, very well done.

01:38 - 40.657 I'm Colby Miller.

01:38 - 43.651 The next two arguments concerning disputes related to election law.

01:38 - 48.389 The appellant in both matters is PA fair elections and associated parties.

01:38 - 51.902 In the first argument, you will hear.

01:38 - 55.605 PA fair elections, appeals and order issued by the Department

01:38 - 59.199 of State, Bureau of Commissions, elections and legislation

01:38 - 04.238 dismissing its complaint, alleging that the Department is violating provisions

01:39 - 08.008 in the federal Help America Vote Act or Hava.

01:39 - 11.288 On appeal of this decision,

01:39 - 15.215 PA Fair Elections argues that the Department has issued directives

01:39 - 19.596 related to the identification requirements for voters eligible

01:39 - 22.699 to vote under the Uniform and Oversees Citizens.

01:39 - 25.793 Absentee Voting Act or your cover

01:39 - 29.463 that do not comply with or requirements under Hava.

01:39 - 32.142 PA fair elections asserts

01:39 - 36.980 that Hava requires your cover voters to supply identification

01:39 - 41.575 information in the form of a valid photo ID, current utility bill,

01:39 - 45.145 or other qualifying documents when submitting their ballots.

01:39 - 48.658 It argues that a directive the department issued to

01:39 - 53.730 Pennsylvania counties falsely asserts that you cover voters are not required

01:39 - 57.057 to provide proof of identification prior

01:39 - 00.103 prior to their votes being counted.

01:40 - 02.739 In response, the department contends that PA

01:40 - 06.576 fair elections argument is simply a disagreement about election law.

01:40 - 11.171 Policy and the proper course of action would be through legislative action

01:40 - 12.483 and support.

01:40 - 13.850 The Department points out

01:40 - 18.245 that both Hava and Pennsylvania law specifically exempt your cover.

01:40 - 22.792 Voters from the identification requirements prior to having their votes

01:40 - 23.827 counted.

01:40 - 26.296 The department argues that while reasonable minds

01:40 - 30.467 may differ regarding the policy, the department's guidance is consistent

01:40 - 31.792 with established law.

01:40 - 35.972 In the second argument, you will hear.

01:40 - 40.243 PA fair elections appeals, a ruling from the Office of General Counsel

01:40 - 44.514 finding that voting machines used in Northampton County meet

01:40 - 48.442 the minimum requirements under Hava before the court.

01:40 - 52.679 PA Fair Elections asserts that the department in Northampton County

01:40 - 57.184 violated Hava by using and continuing to use voting machines

01:40 - 01.698 that it alleges do not produce a permanent paper record

01:41 - 05.726 with a manual audit capacity as required under the act

01:41 - 11.408 to Fair Elections bases this allegation on the fact that in 2023

01:41 - 14.435 municipal elections in Northampton County,

01:41 - 18.848 due to a programing error, some paper ballots printed in response

01:41 - 22.609 to electors elections did not match the votes cast.

01:41 - 27.047 While the votes were tabulated consistent with the voters intent.

01:41 - 32.495 PA Fair Elections argues that the paper ballots were not capable of being used

01:41 - 37.257 in a manual audit, because the ballots incorrectly reported the votes cast.

01:41 - 41.704 In response, Northampton County and the department argue

01:41 - 45.632 that the programing error, which was subsequently rectified,

01:41 - 49.636 did not cause the voting machines to be non-compliant with Harlow.

01:41 - 53.450 They explained that while the votes were printed incorrectly on the paper

01:41 - 56.910 ballots, the machine accurately tabulated the votes.

01:41 - 01.281 In addition, bar codes included on the paper ballots,

01:42 - 05.285 which are individualized to particular votes selections cast

01:42 - 09.289 and readable upon training by the human eye,

01:42 - 12.993 also accurately recorded the votes cast by the elector.

01:42 - 16.773 As such, the voting machine is compliant with the manual

01:42 - 19.776 audit requirement under Hava.

01:42 - 22.479 Let's hear the arguments.

01:42 - 23.646 May it please the court?

01:42 - 24.948 My name is Eric. Colonel.

01:42 - 29.276 I represent pa fair elections, and I'm here with co-counsel Elizabeth Nielsen.

01:42 - 31.888 And I reserve five minutes for rebuttal.

01:42 - 32.723 You have it.

01:42 - 36.750 This case is a challenge to the Department of State policy of not verifying

01:42 - 38.795 and not matching you.

01:42 - 42.823 Aqaba voters, overseas military voters, while they admit they're,

01:42 - 46.693 verifying and matching the voter information,

01:42 - 50.364 for the non-EU account voters, the rest of us,

01:42 - 53.400 the department states policy is confirmed by the administrative record.

01:42 - 56.646 The Department of State claims statutory exemptions

01:42 - 59.115 for you Aqaba voters, so they don't need to verify

01:42 - 02.142 the information like they do for non-EU voters.

01:43 - 05.212 But that's inconsistent with the statutory text.

01:43 - 06.356 And then there are three examples.

01:43 - 10.951 We found Ohio, Georgia in Washington, where they're doing it differently.

01:43 - 14.364 If the agency is correct, these dates are wrong.

01:43 - 17.791 Instead, the court should determine that your common harbor requirements,

01:43 - 22.563 require the same verification for your kind of voters as non-EU voters.

01:43 - 25.832 We seek reversal of the administrative law as a decision.

01:43 - 28.411 The standard of review is de novo.

01:43 - 31.772 Let's go into the administrative record and I'll try to be brief.

01:43 - 35.609 The point is, though, with respect to non-EU Aqaba voters,

01:43 - 39.112 it's in a state verifies the voter registration information.

01:43 - 44.785 They do that because the statute, Hava says the first thing is to check

01:43 - 47.597 that the applicant's

01:43 - 51.658 driver's license number is on the application.

01:43 - 54.704 If not to check

01:43 - 58.398 if the Social Security last four digits is on the application,

01:43 - 02.703 only the Department of State can do that because they've got access

01:44 - 06.139 to the department motor vehicles, driver's license database

01:44 - 09.443 and the Social Security Administration's Social Security number database.

01:44 - 11.688 That's very important to understand.

01:44 - 14.357 Then what happens with the non-EU account of voters?

01:44 - 16.359 That's the rest of us, right?

01:44 - 20.763 Is if we don't have a driver's license number or a Social Security number,

01:44 - 23.790 we can provide alternative information, a passport,

01:44 - 26.903 military ID, whatever you have.

01:44 - 31.365 So with the then what happens with non-EU Aqaba voters

01:44 - 35.902 if there isn't a match, it goes into a pending category.

01:44 - 39.148 Under Pennsylvania law, our county boards

01:44 - 42.175 follow up and give people plenty of opportunities

01:44 - 46.313 to provide the voter information required, and then their vote is counted.

01:44 - 52.152 But in Pennsylvania, as the administrative record shows, for you Aqaba voters,

01:44 - 56.232 there is no Department of State match.

01:44 - 59.068 And so then there's no one in that pending category.

01:44 - 01.271 And the counties don't do the follow up work.

01:45 - 04.831 So it's really important to understand that is being treated differently.

01:45 - 08.235 And this isn't the case in the other states I mentioned.

01:45 - 12.515 So what the in the administrative record shows that things are being treated

01:45 - 14.050 differently like that.

01:45 - 18.078 But first at 265 A, there's the harbor matching directive,

01:45 - 22.149 which mentions the pending category that's used for non-UK voters.

01:45 - 26.853 At 279 A, there's a voter ID information directive

01:45 - 30.557 where it's stated that it's not required

01:45 - 34.161 that the this information be submitted by,

01:45 - 37.507 the the you account of voters

01:45 - 39.742 deputy Secretary mark's

01:45 - 42.812 testimony at 311 a indicates

01:45 - 47.274 that there is no systematic verification of you Aqaba voters.

01:45 - 51.211 And at 330 and then there's Heather honey's testimony

01:45 - 53.556 that the counties aren't doing the follow up work.

01:45 - 55.849 And at 332 Lycoming County

01:45 - 00.063 responded to a right to know request, saying,

01:46 - 03.790 we don't have any emails following up with you Aqaba voters.

01:46 - 06.960 I apologize for interrupting you.

01:46 - 09.038 And we do know the record.

01:46 - 11.107 We have the record.

01:46 - 13.943 What I'd like to talk about is the law a little bit.

01:46 - 17.237 And I'm going to assume, correct me if I'm wrong, that you disagree

01:46 - 20.717 with the judge's reasoning in Washington.

01:46 - 23.744 Association of Churches versus Reed.

01:46 - 27.981 Do you disagree with the judge's thought process in that?

01:46 - 31.160 No. Your honor, as we pointed out in our briefs,

01:46 - 34.788 the first instance that was a challenge to Washington statute

01:46 - 38.759 that said, if you didn't provide the correct driver's license number

01:46 - 43.864 or, Social Security last four digits, then you wouldn't be registered.

01:46 - 47.643 And so the final order in that case indicated

01:46 - 52.372 that the, the, the Hava requirements that we mentioned would be followed

01:46 - 54.884 for you, a couple of voters.

01:46 - 58.955 In fact, the voter registration information

01:46 - 02.582 verification would have to be completed before the vote was counted.

01:47 - 06.529 So do you agree with the judge's reasoning in that case?

01:47 - 07.663 The final order, right.

01:47 - 10.690 The fact you agree with the judge's final order in that case?

01:47 - 11.769 That's right.

01:47 - 14.795 Because we're not disagreeing with that decision.

01:47 - 17.964 We're saying at some point before the votes counted, before,

01:47 - 20.843 you know, the final canvasing,

01:47 - 24.104 if a person doesn't provide the driver's license, their driver's license number,

01:47 - 27.841 their last for the Social Security number or some alternative information

01:47 - 31.387 to the government, then their vote won't be counted.

01:47 - 32.488 Okay. Thank you. Yeah.

01:47 - 35.882 And that's really important to understand that everyone gets all these chances.

01:47 - 40.229 And so the rest of us who aren't overseas military voters, we get lots of chances.

01:47 - 43.099 If we don't put that information in.

01:47 - 47.303 But here, because the Department of State is treating the U.

01:47 - 49.629 Akiva voters differently,

01:47 - 52.542 they there's no

01:47 - 56.102 match, there's no pending category, and there's no county follow up.

01:47 - 58.981 So why do I spend so much time on the ministry of record?

01:47 - 00.583 Because if you look at the Department of State

01:48 - 03.844 brief, it's saying, well, the county can still do the work.

01:48 - 07.824 Well, if I'm a county board and the driver's license

01:48 - 09.926 check and a Social Security check hasn't been done,

01:48 - 12.762 all I get out of these names, these you Aqaba voters,

01:48 - 15.598 and I don't know who's that fallen short

01:48 - 18.925 of providing their driver's license number, their social security number?

01:48 - 21.337 That's the last four digits.

01:48 - 22.939 So so that's really where it's at.

01:48 - 26.433 And one of the things I, I'm kind of sensitive to this, but

01:48 - 30.112 with respect to,

01:48 - 33.716 the record in the case and then after the record,

01:48 - 38.812 there is 20, 24 pre-election public information presented.

01:48 - 44.284 So I'm off the record here and off the record, the it indicates

01:48 - 45.496 that there's no U.

01:48 - 48.522 A common voters in the pending category to the counties.

01:48 - 50.399 Okay. So I mean I'm off the record.

01:48 - 53.894 But this is like when a government produces public information

01:48 - 56.739 and it's and this is what's happening.

01:48 - 59.208 That's like taking judicial notice of er

01:48 - 04.981 we basically we have the document where as Deputy Secretary Mark says,

01:49 - 08.642 we don't do a systematic verification of you Aqaba voters,

01:49 - 12.121 then we're saying, well, they're not doing the matching,

01:49 - 13.923 they're not doing the county follow up work.

01:49 - 16.792 And subsequently the agency puts out public information.

01:49 - 18.427 Yeah, there's no one in this pending category

01:49 - 19.263 there are thousands

01:49 - 22.822 and thousands of non-EU account voters in that pending category.

01:49 - 25.034 And the county does the follow up work.

01:49 - 26.159 So the Department of State,

01:49 - 30.473 interpretation of its own policies can't contradict

01:49 - 33.600 the public information that the department is putting out currently.

01:49 - 34.978 Excuse me.

01:49 - 40.907 Can I just ask you what what remedy is it that you want this court to fashion?

01:49 - 44.253 Well, under the the federal, Harbor Act?

01:49 - 46.022 There's this,

01:49 - 49.783 post election administrative review process that's required in the states.

01:49 - 54.297 And it's really important to understand that the great thing about Postelection

01:49 - 57.991 administrative review, it's it's disconnected from politics.

01:49 - 01.537 It's it's a when you get these post election contests,

01:50 - 04.707 all the candidates show up, all the political parties.

01:50 - 05.942 It's all riled up.

01:50 - 08.844 And so here it's Postelection administrative review.

01:50 - 11.013 And we're pointing out in these previous elections,

01:50 - 14.040 the Department of State as they committed legal error.

01:50 - 17.611 And so we'd like a declaration from the court

01:50 - 22.325 that under the statutes, your common harbor is required,

01:50 - 26.553 that the same, verification that's done for non-EU account

01:50 - 31.291 voters is done for your voters before their votes are counted.

01:50 - 33.560 Why isn't there an express exemption?

01:50 - 37.140 No, that's

01:50 - 40.266 those are the statutory arguments, and I can touch on those.

01:50 - 43.770 One of the arguments that the department state raises is the special rule.

01:50 - 45.848 But when you read the special rule,

01:50 - 48.451 it only applies to people who don't have a driver's license

01:50 - 51.454 or Social Security number with respect to the exception argument.

01:50 - 55.248 And or B, it only applies to registration by mail and first time voters.

01:50 - 58.861 When we look at,

01:50 - 01.697 section 2108 three A5,

01:51 - 04.758 A3, where they say the state has some discretion,

01:51 - 08.128 it still states that they have to meet the federal requirements.

01:51 - 11.131 Further, 2108 four has a preemption provision

01:51 - 14.934 setting the minimal standards for basic election integrity.

01:51 - 18.672 And then in 25 Pennsylvania state

01:51 - 22.108 section 31, 468,

01:51 - 26.646 and I should read that because the Pennsylvania state law

01:51 - 29.525 would be applicable here

01:51 - 32.552 that states, notwithstanding provisions of this section,

01:51 - 33.764 a qualified absentee

01:51 - 36.790 elector shall not be required to provide proof of identification

01:51 - 41.461 if the elector is entitled to vote by absentee ballot under the cover.

01:51 - 43.239 So even in the state law,

01:51 - 46.533 they incorporate the federal law and the federal minimum requirements.

01:51 - 48.568 So the Department of State has a

01:51 - 52.505 interesting statutory argument,

01:51 - 55.608 but it doesn't add up when you look at the text of the statutes.

01:51 - 59.612 But it also doesn't make your contesting the registration

01:52 - 02.958 of these individuals correct?

01:52 - 07.596 No. What we're contesting is that the verification of the voter

01:52 - 11.024 information has to be completed before the vote is counted,

01:52 - 14.203 which is parallel to the final order in the wash to be read.

01:52 - 15.871 Case. Okay.

01:52 - 19.733 So you're not contesting the registration, but

01:52 - 22.078 the counting.

01:52 - 26.106 But at the time that the vote voter is,

01:52 - 30.786 is that the votes are being counted.

01:52 - 31.254 Right.

01:52 - 34.690 So so there are lots of opportunities right up to the time of voting.

01:52 - 36.792 For example, if there is a provisional ballot,

01:52 - 39.128 you try, you try, you try, you try.

01:52 - 42.192 And, if the person can't get driver's license number, Social security number,

01:52 - 45.391 some sort of ID, then their vote wouldn't be counted.

01:52 - 48.728 Before you sit down, Council, could you just explain to me

01:52 - 52.208 how your clients have standing?

01:52 - 54.143 Well, well, we have a private

01:52 - 57.604 cause of action under the, And under harbor.

01:52 - 00.774 How that creates private cause of action to challenge,

01:53 - 04.010 election officials are violating these provisions of harbor.

01:53 - 07.356 And now the administrative law judge is misinterpreted federal law.

01:53 - 09.258 Does it create a cause of action?

01:53 - 12.128 Does it create a cause of action or does it mandate

01:53 - 15.121 states have an administrative process

01:53 - 18.558 to make available to somebody complaining?

01:53 - 23.105 Yeah, but our view is it creates a a private cause of action in the injury in

01:53 - 27.209 this case is the administrative law judge denied us the remedy guaranteed us

01:53 - 30.012 by the federal statute. Okay.

01:53 - 30.947 Thank you.

01:53 - 33.973 Thank you.

01:53 - 40.657 Good morning, Your honors.

01:53 - 41.891 And may it please the court.

01:53 - 44.393 Michael Fisher here for the Department of State.

01:53 - 47.420 And I'm joined at counsel table by Ian Everhart.

01:53 - 50.699 I want to start by making one thing crystal clear,

01:53 - 53.793 which is that at the voter registration stage,

01:53 - 57.931 you look how the voters are treated, no differently from any other voters.

01:53 - 01.477 So the claim that the department tells counties

01:54 - 04.470 not to check the information

01:54 - 08.041 for your voters, but not for others, is simply false.

01:54 - 11.921 You just need to look at the Hava directive, which I think is

01:54 - 15.615 the document being challenged here, although it's not entirely clear to me,

01:54 - 19.953 but that says that's a 265 A of the record

01:54 - 23.623 and that says if you look at the document, the middle, it says, what section?

01:54 - 26.769 Sorry. 265 A that's in the record.

01:54 - 28.737 What section of half are you. Okay.

01:54 - 32.675 This is the document that the department put out there that they are challenging.

01:54 - 33.943 So this is the directive.

01:54 - 37.437 Two counties is called directive concerning have a matching.

01:54 - 41.317 And it says all applications for new voter registrations

01:54 - 44.878 must include a current and valid driver's license number.

01:54 - 48.081 The last four digits of the applicant's social security number

01:54 - 51.184 or statement indicating that the applicant has neither

01:54 - 54.687 a valid and current driver's license or Social Security number.

01:54 - 58.691 And then it says the second point is the voter registration Commission

01:54 - 02.562 or the county agencies that actually process registrations

01:55 - 05.141 must compare

01:55 - 08.167 that information with what's in the federal databases.

01:55 - 13.682 What the directive also says is that the simple fact that a county gets

01:55 - 18.811 a mismatch by itself is not a basis for rejecting an application,

01:55 - 22.725 and that's in there to protect voters because there are mistakes

01:55 - 24.426 in these databases.

01:55 - 27.396 People sometimes get their numbers wrong, and we don't want

01:55 - 30.399 voters losing the right to vote simply because of an error.

01:55 - 32.902 So. So, Mr. Fisher, what does that mean then?

01:55 - 35.929 If they see the mismatch at the county level,

01:55 - 39.008 are they permitted to explore further?

01:55 - 41.443 Absolutely. And to do so and they do that.

01:55 - 42.412 And if they find, oh,

01:55 - 47.140 this is an improper vote or an improper registration, it goes out. Yes.

01:55 - 50.886 But they it seems like you're saying

01:55 - 54.447 if they see the mismatch, they can't just say we're done.

01:55 - 56.258 Right. They can't just say we're done.

01:55 - 57.993 Because is that the six day period

01:55 - 59.728 as you explain that, if you could just tell me,

01:55 - 02.631 is that the six day period we're at, they're given a right to vote.

01:56 - 08.170 They vote is the ballot the vote set aside until they verify.

01:56 - 09.571 And that's six day period.

01:56 - 13.833 So no, that that involves a separate matter, which is the

01:56 - 17.704 the second subsection of what we're talking about under Harbor.

01:56 - 21.617 So what I've just talked through is the registration phase when a voter

01:56 - 25.611 register to vote, no difference between York Harbor voters and other voters.

01:56 - 29.315 Then there's what happens when you actually try to vote.

01:56 - 30.260 And here's where.

01:56 - 31.860 And Judge Dumas alluded this earlier.

01:56 - 34.887 Here's where there is an exception for harbor voters.

01:56 - 39.859 So under Hava, a voter who registered by mail

01:56 - 44.106 has to show voter ID before they vote, whether they vote in person

01:56 - 48.234 or whether they vote by mail, and that ID has to be checked.

01:56 - 51.280 Pennsylvania actually goes even further.

01:56 - 55.084 And we require that for voters who vote by mail any time,

01:56 - 58.578 not just simply the first time they vote, however,

01:56 - 02.949 you will have voters are excluded from that requirement.

01:57 - 07.262 That's the exemption that I think Mr.

01:57 - 09.932 Carter acknowledged is in both state and federal law.

01:57 - 12.001 And that's really not in dispute.

01:57 - 18.841 So the issue here, as I understand their case, is about registration.

01:57 - 21.276 When there is no carve out for you a couple of others,

01:57 - 23.178 it's only once you get to voting.

01:57 - 26.205 And the six day period concerns whether,

01:57 - 29.442 a voter who does not

01:57 - 31.186 provide proper identification.

01:57 - 35.281 So we're talking about non-euro cover voters who are covered by this,

01:57 - 40.219 doesn't provide proper documentation, has six days after Election Day.

01:57 - 43.923 Could you walk us through then what precautions are taken

01:57 - 47.393 with you to cover voters after they vote?

01:57 - 51.440 There's registration and then precautions after they vote.

01:57 - 53.242 Are there any

01:57 - 57.613 the while the legislature has chosen the legislature and Congress have chosen

01:57 - 01.607 to exempt those voters from this voter identification requirement.

01:58 - 07.089 And that's a decision that they both bodies made.

01:58 - 07.590 Okay.

01:58 - 10.592 So you're a you give you a call for a voter,

01:58 - 15.588 you ask for registration and you don't have to give any ID.

01:58 - 17.200 Is that correct?

01:58 - 21.060 You when you register you're required to provide if you have it

01:58 - 23.338 driver's license number or.

01:58 - 25.374 But if you don't have it Social Security number.

01:58 - 28.243 If you don't have it, then you're required to attest to that effect.

01:58 - 29.012 And that's all.

01:58 - 32.472 And, the the department assigns you at a unique identification number.

01:58 - 33.816 And then what happens?

01:58 - 36.843 They just vote. Well, the commission.

01:58 - 40.746 So the county oversees that information, processes the registration.

01:58 - 43.525 They can ask us, as Judge Wojcik alluded to,

01:58 - 45.461 they can ask follow up questions if they need to.

01:58 - 47.029 They can, but they don't have to.

01:58 - 51.200 Well, it's up to each individual county how to interpret its mandate.

01:58 - 55.137 The election code and the Registration Act give the counties

01:58 - 58.164 responsibility for processing voter applications.

01:58 - 01.200 And what specific provision of Hava.

01:59 - 04.012 You said this is a federal law as well.

01:59 - 09.242 What specific provision of Hava permits that or describes that

01:59 - 14.313 type of registration and voting exemption.

01:59 - 16.925 Is it northern half.

01:59 - 21.821 So there is no exception under the harbor for registration.

01:59 - 24.933 Again the the the the exception is under

01:59 - 27.960 the voting provisions of harbor.

01:59 - 30.639 So what Hava says what Hava requires.

01:59 - 34.276 And this is what's in the department's directive, is that all registration

01:59 - 39.739 applications require a driver's license number or Social Security number

01:59 - 43.142 or statement, and the voter does not have either of those.

01:59 - 46.221 And the voting provisions that say

01:59 - 49.057 you don't have to have anything

01:59 - 51.927 for you, you'll cover with what section is that?

01:59 - 55.888 So that is with respect to federal law.

01:59 - 03.229 That is 21083B3C.

02:00 - 06.608 And that says that the provision

02:00 - 10.512 does not apply to a voter who is entitled to vote by absentee

02:00 - 14.407 ballot under the Uniform and Overseas citizens absentee Voting Act,

02:00 - 18.153 and the state statutory

02:00 - 22.357 citation is 2503

02:00 - 25.851 146.8 coming in here today,

02:00 - 30.590 did you understand that the original agency complaint

02:00 - 35.437 and the petition for review were aimed at criticizing

02:00 - 38.664 the directive in terms of the requirement for

02:00 - 42.902 photo ID for registration?

02:00 - 46.405 But they wanted that to happen?

02:00 - 50.752 I think, candidly,

02:00 - 53.889 I wasn't totally sure what the complaint was about coming in here.

02:00 - 55.390 Do you gather what I gather?

02:00 - 57.759 I think I think that is part of it.

02:00 - 01.821 I think I think the petitioners would like to see

02:01 - 05.591 a requirement for you, Ocala voters, to require

02:01 - 09.895 you have voters be required to submit some form of identification

02:01 - 12.774 when they actually vote or when they were, you know,

02:01 - 15.644 and that's a perfectly reasonable two different things.

02:01 - 18.614 There's registration and voting.

02:01 - 21.641 But their petition,

02:01 - 25.845 which I guess refined their original agency complaint,

02:01 - 31.183 they say that their release is they want you,

02:01 - 37.633 to instruct the 6 or 7 counties for verification of identity

02:01 - 42.528 and eligibility for all applicants requesting your cover voting privileges.

02:01 - 45.231 That, to me, sounds like registration.

02:01 - 49.278 Do you agree with that?

02:01 - 52.814 Potentially, yes, although I think you could read that either way.

02:01 - 57.686 But regardless, I mean, what we instruct the counties is set out

02:01 - 00.713 in the Harbor directive and some of our other documents and,

02:02 - 04.559 we do encourage counties

02:02 - 07.596 where they have questions or where, you know, where there is a mismatch,

02:02 - 08.864 for instance, between the driver's

02:02 - 12.058 license number that submitted and what shows up in the federal database.

02:02 - 15.795 We do encourage them to follow up and ask questions and make sure

02:02 - 19.165 that the person applying is a registered voter.

02:02 - 23.612 What we can't do is say that you, Ocala voters,

02:02 - 26.906 have to submit identification when they actually vote,

02:02 - 30.409 because the legislature has chosen to exempt those voters.

02:02 - 34.156 It's perfectly reasonable to say we don't think that exemption should

02:02 - 36.058 exist, but that argument needs to be directed

02:02 - 39.185 to the legislature, not to this court, not to the Department of State.

02:02 - 40.696 So I'm following up on that. Mr.

02:02 - 43.923 Fisher, is it the department's position

02:02 - 45.968 that what

02:02 - 50.772 petitioners are requesting essentially is for us to rewrite the statute

02:02 - 55.067 to include a requirement that is kind of accept it out?

02:02 - 56.545 Think that's fair? Yes. Okay.

02:02 - 00.806 I think they're requesting that the exception in subsection be

02:03 - 04.886 of the relevant provision and your cover be written out of the statute

02:03 - 09.558 as well as the one in state law, B and C, and so B3C.

02:03 - 11.493 Yes, exactly.

02:03 - 14.096 And because with respect to registration, as I said,

02:03 - 17.123 there's no difference in the way that,

02:03 - 19.534 the counties handle this and there's nothing in, you know,

02:03 - 22.738 that this is reference to Deputy Secretary Mark's testimony.

02:03 - 26.999 Well, I think in context, Deputy Secretary Marx was addressing

02:03 - 32.047 the voting exception for your card voters, not the registration exemption.

02:03 - 35.384 And regardless, you know, testimony at a hearing

02:03 - 38.677 is not what what the counties look to when they decide their policies.

02:03 - 40.155 There's a reason we issue

02:03 - 44.192 directives like this so that the counties have clear instructions

02:03 - 47.386 about what it is that they need to do when they process applications.

02:03 - 54.136 And finally, I do think I'll just add that the read case came up earlier.

02:03 - 59.799 I think that case really does walk through the requirements of a very well.

02:04 - 01.476 Now that is not a U.

02:04 - 05.838 A Carver case, but it explains exactly what's required.

02:04 - 09.809 And what's required is the submission of either of these two identifiers

02:04 - 12.254 or statements. The voter doesn't have it.

02:04 - 15.891 The state then, or in Pennsylvania, the county has to compare

02:04 - 17.726 that to the databases.

02:04 - 21.696 But what the what the court there said is but the state cannot go further

02:04 - 26.401 and require a match as a prerequisite to voting in all cases.

02:04 - 27.836 So I think when Mr.

02:04 - 31.263 Carlisle said, well, we think the order is consistent with their opinion,

02:04 - 35.067 what he's talking about is where they say that

02:04 - 37.212 a voter who doesn't have

02:04 - 41.283 identification when they vote can have their ballot essentially

02:04 - 44.319 put on hold until they produce identification.

02:04 - 45.487 That's what the statute

02:04 - 49.415 allows for non-EU voters who aren't covered by that provision.

02:04 - 51.626 You agree with the logic of Reed?

02:04 - 54.396 Yes, absolutely. I asked that question.

02:04 - 58.757 Council, and he says he agrees with the order as I understood his answer.

02:04 - 02.103 Maybe I can get corrected in my understanding.

02:05 - 03.972 But you agree with the, logic.

02:05 - 04.607 I agree with the logic.

02:05 - 08.376 And I also think Reed, does a does a nice job of sort of walking

02:05 - 11.847 through a complicated statute at a fairly concise and clear way.

02:05 - 14.874 And that's why you all cited it in the directive. Yes.

02:05 - 18.210 Before you jump away, could you just explain

02:05 - 22.991 if the a voter seeking to register doesn't have Social Security number,

02:05 - 27.586 doesn't have driver's ed driver's license, and the state assigns a number,

02:05 - 30.398 is there any other follow up,

02:05 - 34.527 any other verification procedure, or are you saying that person can just vote?

02:05 - 38.840 And as long as they vote with that matching number, there's no question

02:05 - 40.108 to that.

02:05 - 43.879 It's up to the county to decide whether that is a valid application.

02:05 - 48.541 But there is nothing in the law that says a county can reject it based on that.

02:05 - 50.886 Well, have I just says you can't

02:05 - 53.913 stop them from registering because they don't have,

02:05 - 57.692 because say they're getting a matching them a number

02:05 - 00.929 from the state that you can't just say you can't be registered.

02:06 - 02.697 But certainly there's some kind of follow up.

02:06 - 04.833 Are you saying the state has no follow up?

02:06 - 07.836 Well, the state the relevant state law, like I said,

02:06 - 10.863 exempts you account voters from the ID requirement.

02:06 - 13.675 We can debate whether that was a good decision or just help me here.

02:06 - 15.277 Which law are you talking about?

02:06 - 20.815 This is the, the one I cited earlier, the 253146.

02:06 - 21.017 Okay.

02:06 - 26.579 But that's the that's I think that's the problem that I think they're raising,

02:06 - 30.091 however, doesn't excuse

02:06 - 32.894 our Commonwealth from verifying a voter.

02:06 - 35.921 It just can't deny them registration under harvest

02:06 - 39.925 by not giving them a number if they don't already have one.

02:06 - 43.171 But I'm trying to understand is there any other verification

02:06 - 46.841 or are you saying Pennsylvania law says, well, songs, we give you a number.

02:06 - 49.868 You don't have to be verified in any way.

02:06 - 52.747 This is someone who has no documentation.

02:06 - 56.718 What I'm saying is that Pennsylvania law, like federal law, exempts

02:06 - 00.446 you account voters from the identification requirement when they show up to vote.

02:07 - 04.650 We can have a robust debate about whether that makes sense or not.

02:07 - 07.987 Well, you're talking in the legislature made okay, you acoba

02:07 - 11.223 you're citing 2108 three again, yes.

02:07 - 12.734 Which I'm sorry.

02:07 - 15.003 Tell me again which section I pay.

02:07 - 16.304 I want to make sure I get it right.

02:07 - 20.399 I believe it's the B3C yes.

02:07 - 22.344 Can you just pause and make sure.

02:07 - 23.445 Because that is what you said.

02:07 - 26.081 But when I looked I didn't see it okay.

02:07 - 27.282 So there's

02:07 - 31.577 you know it starts with the lowercase a and then goes to the lowercase b.

02:07 - 34.756 So yeah b lower. So lowercase b.

02:07 - 38.017 The first b is requirements for voters who register by mail.

02:07 - 41.654 Yeah. And then three is in applicability

02:07 - 43.366 where it says

02:07 - 46.392 paragraph one shall not apply in the case of a person.

02:07 - 51.339 And then capital C is who is entitled to vote by absentee

02:07 - 55.334 ballot under the Uniformed and Overseas Citizens Absentee Voting Act.

02:07 - 56.278 Thank you.

02:07 - 59.304 And then I mentioned also the analogous state law provision.

02:07 - 02.484 Okay. Thank you very much, your Honors.

02:08 - 05.511 Thank you very much.

02:08 - 08.657 You judge you,

02:08 - 12.327 your honor, I rep I listened very carefully to the department

02:08 - 16.155 state's arguments, the my friends arguments, but they never,

02:08 - 20.559 gave any legal justification for not doing the match.

02:08 - 25.531 So the Department of State has the the driver's license number is the database.

02:08 - 28.643 It has the Social Security Administration,

02:08 - 32.104 Social Security number database, and they don't do the match.

02:08 - 33.248 I'm sorry.

02:08 - 35.583 The Department of State does not do the match.

02:08 - 38.811 So yeah, you're saying across the state you're not trying the count.

02:08 - 40.089 That's correct.

02:08 - 42.290 Because they have the databases.

02:08 - 44.726 And so the presentation by my friend, Representative

02:08 - 47.753 Palmer State is that counties can still follow up.

02:08 - 50.799 But if they don't do the match

02:08 - 54.469 then how would the counties know runs elections

02:08 - 57.696 in Pennsylvania, the Department of State according to Harbor.

02:08 - 59.932 So the Help America Vote Act says

02:09 - 04.703 the state shall not accept.

02:09 - 09.241 Slots accept or process an application and

02:09 - 12.554 in case it includes the

02:09 - 15.581 the applicant's driver's license number

02:09 - 19.351 or the applicant's social security number, the last four digits,

02:09 - 22.521 if they don't have those alternative information can be provided,

02:09 - 26.358 and the verification of the voter information has to be done

02:09 - 28.236 before the vote is counted.

02:09 - 32.674 And this exception that we're talking about applies to registration by mail.

02:09 - 33.609 First time voters.

02:09 - 37.102 It has nothing to do with eviscerating.

02:09 - 41.449 Our only only federal requirement for voter

02:09 - 45.677 registration information, however, puts this obligation on the state

02:09 - 48.723 generally all 50 states.

02:09 - 50.925 And assuming,

02:09 - 52.794 District of Columbia.

02:09 - 57.365 So it doesn't say Pennsylvania, that's the Department of State.

02:09 - 58.533 They leave it to our General.

02:09 - 02.361 Assembly to determine how those elections are administered.

02:10 - 05.631 That's the state for purposes of Hava.

02:10 - 08.901 And then the department, the General Assembly has seen fit

02:10 - 12.805 to delegate that to the Department of State through the counties.

02:10 - 14.449 Is that correct?

02:10 - 18.653 No. Your Honor, this is a critical point because the Hava requires the Department

02:10 - 22.981 of State, the state to acquire the access, says the Department of State,

02:10 - 26.885 the access to the the Joint Resources database and to the,

02:10 - 29.297 access to the

02:10 - 31.933 social Security Administration Social Security number database.

02:10 - 34.369 So it's the Department of State has access to the databases.

02:10 - 37.272 It's the only one that can do that. Check.

02:10 - 39.374 And it does it for non-EU account voters.

02:10 - 44.512 So when when it mentioned this off the record information that the Department

02:10 - 48.140 of State makes publicly available, and I wrote this letter to,

02:10 - 51.252 the Honorable Judge

02:10 - 54.580 Kevin O'Connor on October 14th, 2024,

02:10 - 58.593 case number 24 cv 1671.

02:10 - 59.894 Docket 31.

02:10 - 03.731 And they would have received a copy that that publicly available information

02:11 - 08.160 shows thousands in the pending category for non-EU account voters.

02:11 - 13.065 But for you a couple of voters zero zero they're not doing the match.

02:11 - 16.044 And this is in here is the requirement

02:11 - 19.471 that they do the match for those individuals.

02:11 - 23.542 Did you look at the provision of ha

02:11 - 28.647 of Hava that's says that it doesn't apply

02:11 - 34.295 paragraph one doesn't apply to in the case of a person who is entitled to vote

02:11 - 37.298 by absentee ballot under the Uniformed

02:11 - 42.227 and Overseas Citizens Absentee Voting Act, that goes back to the requirement

02:11 - 47.709 for first time, voters who are registering by mail, or they're voting

02:11 - 51.236 for the first time out of a jurisdiction that's not Hava compliant.

02:11 - 52.747 It's it's limited.

02:11 - 55.774 And it relates to the information that's provided.

02:11 - 00.712 It doesn't, obviate the need to do the, voter,

02:12 - 03.758 information verification.

02:12 - 05.693 It doesn't have anything to do with that.

02:12 - 07.061 It comes later in the process.

02:12 - 11.356 The voter information verification is necessary

02:12 - 14.502 so that people don't use other people's credit.

02:12 - 15.894 That provision is that.

02:12 - 18.173 Okay.

02:12 - 21.199 2108385

02:12 - 23.945 A1 I'll read the last part.

02:12 - 28.040 An application for voter registration for an election for federal office

02:12 - 29.317 may not be accepted.

02:12 - 32.611 A process by a state, unless the application includes,

02:12 - 36.281 that goes on to the applicant's driver's license number

02:12 - 38.593 or the applicant's social security number.

02:12 - 41.396 Then there's a special rule for people who don't have either

02:12 - 43.898 that they can provide alternative information.

02:12 - 46.534 So with respect to the no annual cover voter

02:12 - 49.137 we have that they do the match.

02:12 - 51.973 Then the county follows up to see if the alternative information

02:12 - 54.242 is available for those people who don't match.

02:12 - 58.403 And they're saying that there's a statutory exemption for non you confirm

02:12 - 01.540 for the for your coverage overseas voters, 70% of them

02:13 - 05.544 are non military that we don't have to do that minimum match.

02:13 - 09.481 That's contradicts the preemption provision of 28 four.

02:13 - 13.618 It contradicts the statute 25 Pennsylvania statute.

02:13 - 18.690 Section 3146.8 which incorporates the federal law.

02:13 - 20.792 And the Department of State

02:13 - 24.730 documents claim.

02:13 - 28.409 And it's a, mark's testimony to that.

02:13 - 31.503 You carve voters in Pennsylvania.

02:13 - 35.007 There's no systematic verification requirement.

02:13 - 37.919 So, Council, let me just be clear on this.

02:13 - 41.155 You're not suggesting that any of these statutes, either

02:13 - 45.626 at the federal level or the state level that apply in this instance are ambiguous.

02:13 - 48.563 It's just we read the statute and we can apply that.

02:13 - 50.164 We can interpret it. Yes.

02:13 - 52.567 And I'm afraid that's the case, Your Honor.

02:13 - 55.560 Because, if you just read it literally,

02:13 - 59.407 you would say you're a cover and now you have a voters are subject

02:13 - 03.468 to the same voter information verification requirements

02:14 - 08.840 and that this policy, came up and there isn't really a statutory basis.

02:14 - 11.819 And then the funny thing, I want to finish this.

02:14 - 15.414 The funny thing about this is the this off the record stuff

02:14 - 18.092 that this information is publicly available,

02:14 - 20.995 that there's no one in the pending category for you, a cover.

02:14 - 23.931 And the state knows that because I wrote that letter, Judge Connor,

02:14 - 27.159 and they have a copy of it and they still continue to argue in this court.

02:14 - 29.137 Well, the counties can do the job.

02:14 - 31.539 The counties don't have access to the database.

02:14 - 33.441 They can't do the matching.

02:14 - 36.010 So county I mean, county officials aren't doing it.

02:14 - 39.538 And we have the Lycoming County, right to no response.

02:14 - 42.550 And we asked them, okay, show us the follow up on the you

02:14 - 46.378 a common voters for the 2020 election, but we don't have any follow up.

02:14 - 48.013 Thank you very much.

02:14 - 50.392 Thank you.

02:14 - 54.128 And then, I believe you are going

02:14 - 57.122 to be arguing number 65 as well.

02:14 - 00.392 This is another,

02:15 - 03.662 examination of Hava,

02:15 - 07.365 different section.

02:15 - 08.944 Okay.

02:15 - 11.012 We're going to have a change of counsel.

02:15 - 14.039 This is Pennsylvania fair elections.

02:15 - 20.045 And all petitioners and the Pennsylvania Department of State,

02:15 - 23.257 as well as, Northampton County Election.

02:15 - 26.284 Commission board at all.

02:15 - 34.602 Please begin.

02:15 - 35.903 Thank you, Your Honor.

02:15 - 38.539 Council, your honors may please the court.

02:15 - 41.609 My name is Elizabeth Nielsen, and I represent petitioners.

02:15 - 43.945 PA fair elections and Stacey Redfield.

02:15 - 46.972 I would like to reserve three minutes for rebuttal.

02:15 - 48.149 Okay.

02:15 - 50.518 The OGC below aired in its

02:15 - 54.613 interpretation of the federal law hava the Help America Vote Act

02:15 - 59.751 when dismissing petitioners complaint that the EV xl component

02:16 - 03.121 of the Northampton County Electronic Voting System,

02:16 - 08.836 which is demonstrably unreliable to produce the Hava, required

02:16 - 14.032 permanent paper record with manual audit capacity, demonstrate it.

02:16 - 17.044 When the EV xls paper records

02:16 - 20.071 printed contrary to vote selections.

02:16 - 24.418 We ask this court reverse Yogi decision and enable

02:16 - 29.581 a remedial plan to prevent Hava violations from occurring in federal elections.

02:16 - 31.225 Now, so are you.

02:16 - 35.787 Is is your position that the floor itself is the violation of Hava

02:16 - 39.891 the capability of the machine to produce a printed paper record

02:16 - 43.237 that is different from the electronically stored version?

02:16 - 44.139 Yes. Okay.

02:16 - 47.708 So this happened in the 2023 municipal election.

02:16 - 48.610 Correct? Correct.

02:16 - 51.045 That is when the flaw was discovered.

02:16 - 56.141 Did it occur on the 2024 federal primary election?

02:16 - 57.585 Not that I am aware, no.

02:16 - 00.087 What about in the 2024 general election?

02:17 - 01.822 Not that I'm aware there.

02:17 - 06.218 As far as I'm aware, it was only in the 2023 municipal election

02:17 - 10.765 that it was uncovered that this machine is capable of producing a mismatch

02:17 - 13.825 between the electronically stored version and the printed paper version.

02:17 - 14.303 What?

02:17 - 18.406 It isn't the fact that the error was caught actually

02:17 - 22.801 proof of the existence that the system works.

02:17 - 27.648 No, Your honor, petitioner's position

02:17 - 32.877 is that there are alternate electronic voting machine system components

02:17 - 35.923 that could replace the Excel that do not have

02:17 - 38.950 the capability of even,

02:17 - 43.922 printing out a result that is different from the actual vote selections

02:17 - 46.968 and that the have a requirement

02:17 - 50.471 for a manually audible, audit able paper

02:17 - 55.009 record requires that a machine not have that that capacity.

02:17 - 58.403 They must be able to print an actual copy of the vote.

02:17 - 02.250 So the risk, the relief you're requesting is that Northampton swap out

02:18 - 06.077 these machines for machines that meet the standards as you believe them to be.

02:18 - 08.689 That could be the remedial relief.

02:18 - 11.359 Well, what else could it be?

02:18 - 14.095 I mean, I think that probably is the most straightforward

02:18 - 17.822 version of remedial relief that would satisfy pay for elections.

02:18 - 22.060 And again, the EV XL is merely a single component

02:18 - 25.072 of the electronic voting system used in Northampton County.

02:18 - 29.134 It's also used and, I believe Philadelphia County and Cumberland County,

02:18 - 31.046 most other

02:18 - 34.239 jurisdictions do not use that particular.

02:18 - 37.418 So just to be clear, this error occurred

02:18 - 40.445 because of a human programing error.

02:18 - 43.057 As to the ballots.

02:18 - 46.551 The votes were properly recorded, correct?

02:18 - 48.462 Purportedly so.

02:18 - 50.631 And in the okay.

02:18 - 55.126 But I thought you agreed they were and in the process of voting,

02:18 - 59.731 the voter gets one printed receipt which shows their vote.

02:19 - 04.102 If it's not correct, they can do something

02:19 - 07.114 to vote again to correct that.

02:19 - 08.916 Is that is that not right?

02:19 - 12.520 So, Your Honor, and the reason why I say purportedly is because

02:19 - 16.114 when Stacey Redfield, who was an election judge in Northampton County that day,

02:19 - 21.152 was hearing from voters and as she testified at the administrative proceeding

02:19 - 26.224 for some voters, what happened in this judicial retention election,

02:19 - 30.362 which ultimately was revealed to be due to a programing error,

02:19 - 35.266 if someone selected yes or no,

02:19 - 39.804 in these two different elections, the names would be flipped.

02:19 - 43.174 So it appeared that they had voted the alternate way.

02:19 - 47.011 So some voters actually, when they they had the printout

02:19 - 50.358 card, were receipt, which is behind

02:19 - 53.561 a glass window after they have confirmed

02:19 - 56.697 their electronic selections, it was printed wrong.

02:19 - 02.160 So some voters reportedly, went back, they voided their printed ballot.

02:20 - 05.897 Which also has the bar code that stores

02:20 - 08.609 supposedly what their genuine vote is,

02:20 - 10.378 but they weren't able to make the correction

02:20 - 12.813 because the print out what happened wrong every time.

02:20 - 14.115 So some voters

02:20 - 18.443 then voted the opposite of their intent so that the text that was readable

02:20 - 22.223 would turn out the way that they actually wanted to vote.

02:20 - 25.417 So that that's why I make that caveat on what you would like is,

02:20 - 28.596 voting machine.

02:20 - 30.731 They can still be programed.

02:20 - 33.000 You have to put the ballots in. Right.

02:20 - 36.070 So somebody, a human would still have to put the ballots

02:20 - 39.731 and enter that into the system, as you're saying, there's some.

02:20 - 41.675 Yeah, that could be a component.

02:20 - 44.702 That could be a switch out replacement for the vehicle.

02:20 - 48.015 But you're saying the vehicle

02:20 - 51.576 so it's the index of that it that it

02:20 - 56.757 these elections proved that it is capable of printing a mismatch

02:20 - 00.285 between the actual vote selections and the printed paper copy,

02:21 - 04.589 which is the one you're suggesting or don't you have a particular suggestion?

02:21 - 07.992 I don't have a particular suggestion.

02:21 - 11.029 You just want the court to say, get that out.

02:21 - 13.774 Yes. Your honor, the interesting thing is

02:21 - 17.535 that if the machine didn't malfunction at the the human did.

02:21 - 20.247 And so

02:21 - 23.751 having the machine removed doesn't really remedy the issue.

02:21 - 26.778 And, and human error occurred,

02:21 - 29.848 and the machine was set up in such a way

02:21 - 34.085 that it contemporaneously notified the voter that there was an error.

02:21 - 37.531 Your honor, there are some machines

02:21 - 41.593 that would not allow that kind of programing error to occur.

02:21 - 44.438 And that's your preference?

02:21 - 46.440 That, I believe, is what Hub of requires.

02:21 - 48.275 Which brings us to the statutory issue.

02:21 - 51.111 That's a good point. Let's talk about that.

02:21 - 54.048 So however, administrative complaints contemplate violations

02:21 - 57.509 that have occurred, are occurring or will occur in the future.

02:21 - 03.047 That's why even though this was election and there are reasons to think that the,

02:22 - 06.317 the administrative law judge could have considered,

02:22 - 09.830 that there are still harbor

02:22 - 13.424 obligations, even in municipal elections as covered in the briefs.

02:22 - 15.158 So I'll go on,

02:22 - 18.339 elections that will occur.

02:22 - 21.366 We could prevent future harbor violations.

02:22 - 25.613 We've discussed the factual background,

02:22 - 30.284 but the key part of the statute that petitioners say

02:22 - 35.256 is violated by the every cell component is in 52 U.S.C.

02:22 - 38.283 section two, 1081A,

02:22 - 42.787 particularly A to B, one

02:22 - 47.334 says the voting system shall produce a permanent paper

02:22 - 51.229 record with a manual audit capacity for such system.

02:22 - 53.607 I think that gets kind of at the heart of it.

02:22 - 56.901 Now, the word manual is not defined in harbor,

02:22 - 02.373 so we have to go with the generally understood terminology.

02:23 - 06.787 I provided in the briefs a few different definitions,

02:23 - 10.958 but manual related to human hands relating to are done

02:23 - 14.619 with hands, worked by hands or worked or done by hand and not machine.

02:23 - 17.898 So the crux, the argument is this

02:23 - 23.161 if an electronic machine is required to read a paper record of an actual vote,

02:23 - 28.576 and that record is not readable by human hands and eyes, that paper record falls

02:23 - 34.105 short of being a Hava compliant, manually audit capable permanent paper record.

02:23 - 36.107 And this is not to say

02:23 - 39.553 that Hava forbids

02:23 - 42.680 electronic storage of votes or reading of votes,

02:23 - 47.318 because it actually does permit that Pennsylvania law permits that,

02:23 - 51.990 and it's not petitioner's position that you cannot use electronic voting systems.

02:23 - 55.360 So, Miss Nielsen, let me just jump in and

02:23 - 58.038 clarify something myself here.

02:23 - 01.065 Reading through the briefs, I understood that that

02:24 - 04.745 paper that that caused all this problem, that demonstrated

02:24 - 09.173 the flipping of the votes was behind glass. Yes.

02:24 - 15.213 So if everything works out properly, the voter likes that vote.

02:24 - 16.357 They said, this is my vote.

02:24 - 16.992 This is true.

02:24 - 19.927 I like what it says and I push the button.

02:24 - 21.829 Where does that paper go?

02:24 - 25.356 My understanding of it is it goes into some sort of holding chamber

02:24 - 28.035 and then those are retained. So other portions.

02:24 - 31.372 So there's no way for any human hands to touch that.

02:24 - 35.133 They the voter just sees that and says that's cool.

02:24 - 36.844 Or hey, I got a problem.

02:24 - 38.579 As far as I understand

02:24 - 42.674 how it works, I have not physically myself inspected one of these machines.

02:24 - 47.011 However, that's manual audit capacity.

02:24 - 47.856 Okay.

02:24 - 51.315 So the idea would be and and, you know,

02:24 - 54.561 another section, I think section three

02:24 - 57.588 in that same statute.

02:24 - 00.134 So I, I read section one,

02:25 - 03.161 but the paper record that is produced,

02:25 - 06.607 shall be available as an official record for any recount

02:25 - 10.034 conducted with respect to any election in which the system is used.

02:25 - 15.306 So the idea is you could use it for a manual audit down the road.

02:25 - 16.817 So now now we're going forward.

02:25 - 19.086 Now they recognize the problem that

02:25 - 23.023 and it was every single time there was an inconsistent vote.

02:25 - 25.059 You vote yes for one candidate.

02:25 - 26.493 You vote no for the other.

02:25 - 28.328 It was flipping them. The yes became a no.

02:25 - 29.797 The no became the yes. Right.

02:25 - 31.465 That's my understanding. Okay.

02:25 - 34.268 So we know that everyone accepts that they actually went to

02:25 - 37.295 the Common Pleas Court and there were orders that are entered

02:25 - 41.332 saying that and recognizing that and putting out,

02:25 - 43.844 to the population.

02:25 - 47.538 When this happens, it's reversed on that on the vote.

02:25 - 50.851 So isn't it cured?

02:25 - 54.912 The record is established and we know what happened.

02:25 - 00.184 So don't we have a true understanding that we can audit because we know

02:26 - 03.597 in this instances we interpret it opposite

02:26 - 06.624 because that's a programing error.

02:26 - 07.702 Right?

02:26 - 10.728 Well, Your Honor, I think that the issue there is

02:26 - 13.207 going back to my caveat

02:26 - 16.300 that I made earlier is that voters were not able

02:26 - 20.347 day of as it was going on, especially early on in the day.

02:26 - 21.749 They were not able to know

02:26 - 24.776 what their vote actually was and how it was being counted,

02:26 - 26.954 because some of them were flipping their votes

02:26 - 30.848 so that the paper record reflected their intent rather than their electronic

02:26 - 34.085 stored votes selected on the on the screen.

02:26 - 38.055 Well, the paper record reflected their intent.

02:26 - 41.159 It was just translated differently. I

02:26 - 44.972 didn't not necessarily a programing error.

02:26 - 47.999 Well, not necessarily, especially for those,

02:26 - 51.602 those voters who then flipped their electronic vote,

02:26 - 55.516 as opposed to their true intent.

02:26 - 59.210 But, but then the machine would have reflected something different

02:26 - 02.322 than their true intent. Correct.

02:27 - 06.093 So their actual vote that would have been counted

02:27 - 10.164 electronically by the machine would have been not the voters intent,

02:27 - 12.733 even though the paper record was their intent. Right.

02:27 - 17.971 So they really didn't do something that helped them when they thought correct.

02:27 - 20.998 For some voters, the ones that that did that,

02:27 - 25.303 unfortunately, that was the outcome.

02:27 - 29.316 Just to be clear, and it it's an interesting issue.

02:27 - 33.077 You're saying that the court you're asking the court to declare that

02:27 - 36.314 the machine be used

02:27 - 40.561 that is not capable of a programing error and that those are out there,

02:27 - 44.655 or just declare that this one had a programing capability to be,

02:27 - 49.193 corrupted by human error and cannot be used.

02:27 - 51.829 Number one. And number two, you want a paper receipt?

02:27 - 56.076 Well, the paper receipt is required by Java

02:27 - 59.303 or some sort of paper record that would be manually audit able.

02:28 - 03.016 Petitioners suggested

02:28 - 05.986 a number of different areas of relief.

02:28 - 09.756 Their initial complaint, that would have satisfied them

02:28 - 13.060 as far as like that would have brought these machines

02:28 - 16.087 or this component into compliance with other,

02:28 - 19.266 and switching out the Excel component to one

02:28 - 23.403 that is not capable of printing a mismatch between the electronically

02:28 - 27.574 stored version and the paper version would be also satisfactory.

02:28 - 30.601 Thank you very much.

02:28 - 36.783 Good morning.

02:28 - 41.212 May I please the court, Michael Vargo, on behalf of the County of Northampton,

02:28 - 44.958 the Northampton County Election Commission, with Hampton County Executive.

02:28 - 49.020 Lamont the Claw and look, Hampton County Registrar Christopher Kameny.

02:28 - 53.157 I'm joined by attorney Gregory Da from the Department of State.

02:28 - 56.870 I would ask for nine minutes and reserve six minutes for Attorney dart

02:28 - 58.229 from the Department of State.

02:29 - 02.876 No one is can is.

02:29 - 03.877 Everyone agrees.

02:29 - 07.104 What happened is that a human made a mistake

02:29 - 10.517 as a result of the human error.

02:29 - 13.577 The label for certain votes

02:29 - 17.148 in the 2023 municipal election,

02:29 - 19.626 the votes were mislabeled.

02:29 - 20.361 And that's important.

02:29 - 23.387 The votes were correct.

02:29 - 27.134 The voting, the votes were properly recorded.

02:29 - 29.736 The label for those votes.

02:29 - 35.399 That's easier for the person for human to read was was in the wrong place.

02:29 - 39.446 But doesn't that create a lot of unnecessary confusion?

02:29 - 41.615 And isn't there an easy fix this time?

02:29 - 44.251 It was this human error. It could be a different here.

02:29 - 45.819 Human error next time.

02:29 - 48.722 This was a retention vote. Yay! Nay.

02:29 - 51.625 In the future it could be how many votes go to one person

02:29 - 54.828 or another, which might be a lot harder to iron out.

02:29 - 56.954 Why isn't this just an easy fix?

02:29 - 59.466 It's been fixed.

02:29 - 02.369 You've taken the DTV, XL.

02:30 - 05.505 We've altered the testing procedures to ensure that this mistake

02:30 - 08.508 would be caught and rectified prior to the use of the machines.

02:30 - 13.237 This particular mistake, the testing is far more

02:30 - 16.273 is has been the robustness of the testing is increased.

02:30 - 21.712 In order to avoid this error, you cannot eliminate all human error.

02:30 - 24.691 Anyone who remembers

02:30 - 28.452 video from Florida from the 2000 election, anyone who remember

02:30 - 32.699 who's ever participated in a manual recount or observed

02:30 - 37.595 a canvass of hand printed votes or computer votes knows that that's true.

02:30 - 40.664 We know there's human error in programing, but I thought

02:30 - 44.301 the petitioner said there are,

02:30 - 46.713 voting machines that can

02:30 - 49.740 that wouldn't allow that kind of error.

02:30 - 51.518 Do you disagree with that?

02:30 - 55.079 There is no system of voting

02:30 - 58.549 that can possibly eliminate human error.

02:30 - 01.728 Human error is it always happens.

02:31 - 06.924 Just think of the litigation that has gone on for years in this court,

02:31 - 08.703 in the federal courts,

02:31 - 12.029 and up and down over something as simple as writing a date on an envelope.

02:31 - 16.167 If humans can't consistently manage to write a date or an envelope or two.

02:31 - 18.412 But we're talking about something else.

02:31 - 18.980 Excuse me?

02:31 - 22.006 We're talking about corrupting, programing,

02:31 - 24.751 in a voting machine that's different.

02:31 - 28.555 I mean, the the human error was what was entered into the machine.

02:31 - 29.323 So it's corrupt.

02:31 - 32.349 It's possible to corrupt the machine.

02:31 - 35.328 That's what I, I understand their claim to be.

02:31 - 38.355 They don't want a machine that can be corrupted by human error.

02:31 - 41.959 And if removing the vehicle component

02:31 - 45.963 would accomplish that, there is no machine.

02:31 - 48.208 Any machine that is programed.

02:31 - 50.444 All machines must be programed.

02:31 - 54.381 Any machine that is programed, someone can make a mistake.

02:31 - 58.442 It is impossible to design a system in which there could not possibly be

02:31 - 02.980 because, election voting machines of some kind are required

02:32 - 08.528 because we need to have accessible options and there are people who cannot.

02:32 - 12.189 There are voters who cannot fill out a hand paper ballot.

02:32 - 15.202 So once we concede

02:32 - 18.229 that there must be machines,

02:32 - 22.766 machines have to be used machines, if there used have to be program.

02:32 - 26.446 Any program can cause an error.

02:32 - 30.141 There can always be an error somewhere in the process.

02:32 - 32.819 And so you,

02:32 - 34.321 and taking that at,

02:32 - 37.348 you know, understanding that then,

02:32 - 41.661 what happened here was that the error was made evident

02:32 - 44.688 because the voter saw

02:32 - 49.627 that there was an issue and so could mention it. And

02:32 - 52.372 you've now figured out how

02:32 - 55.900 to remedy that with more robust testing.

02:32 - 56.844 Correct.

02:32 - 59.746 The county's position is that, however,

02:32 - 03.250 there was no however, there is no harbor violation in 2023

02:33 - 07.044 because there couldn't be because that's not a federal election in 12.

02:33 - 08.588 That's okay.

02:33 - 11.615 But in, even if there was an error

02:33 - 16.930 and even if that error was there have a violation.

02:33 - 21.025 So even if have applies and even if there was a harbor violation,

02:33 - 24.361 the appropriate remedy has already been implemented.

02:33 - 27.798 And the appropriate remedy is not the extreme remedy

02:33 - 29.676 of requiring one of the

02:33 - 32.846 not just Northampton County, but also one of the largest counties

02:33 - 36.407 in Pennsylvania, Philadelphia County, to get rid of all their voting machines,

02:33 - 40.620 the appropriate remedy is to alter the testing to ensure that this error

02:33 - 43.647 that the error can't happen and that's already been done.

02:33 - 47.985 So the relief, the most appropriate relief has already been granted.

02:33 - 52.489 So you're saying that it's not if have applies in your belief.

02:33 - 57.804 If, however, applies that the fact that the error occurred

02:33 - 02.633 is not a have a violation because it was easily corrected?

02:34 - 05.946 Well, it's not it's not a violation for two reasons.

02:34 - 08.973 The the error that actually happened did not have

02:34 - 10.784 the votes were still properly recorded.

02:34 - 12.042 The votes were still counted.

02:34 - 18.625 The remedy if there is if the county is wrong

02:34 - 21.885 and there was a high of a violation in this, this reversed labeling.

02:34 - 26.056 And that's important because in any other election

02:34 - 30.961 the name would be where the was would, would have been correct.

02:34 - 35.041 The only reason the name is because the names were in the label section,

02:34 - 37.644 not not the vote section, because in this case

02:34 - 40.671 the vote is not someone's name, the vote is a yes or no,

02:34 - 44.375 and it can only occur in a situation the.

02:34 - 47.578 This actual violation can only occur in municipal election.

02:34 - 50.557 This this actual issue cannot happen

02:34 - 53.617 in a federal election because we don't have federal retention.

02:34 - 56.529 So it can't actually occur there.

02:34 - 59.690 But even if it did, the appropriate remedy has already been implemented.

02:35 - 05.296 The remedy requested is extreme form and may not even be possible.

02:35 - 08.399 Northampton County is both constrained

02:35 - 14.014 and empowered by the way the voting system works.

02:35 - 17.951 We are constrained to select a voting system certified

02:35 - 20.320 by the Department of State, but we also are empowered to select

02:35 - 23.123 any machine we want that's been certified by the Department of State.

02:35 - 26.026 In this case, this is a machine certified by the Department of State.

02:35 - 29.996 From Northampton County's perspective, once we choose a machine

02:35 - 33.590 certified by the Department of State, we've satisfied our our obligations.

02:35 - 36.736 The Department of State, similarly,

02:35 - 39.763 is constrained and empowered

02:35 - 44.044 because they are required to choose a machine, to only authorize

02:35 - 46.446 machines, to only certify machines that have been certified

02:35 - 49.473 by the Federal Election Assistance Commission.

02:35 - 52.810 Council either solicitor back in 2023 when this happened,

02:35 - 54.387 I was not the solicitor.

02:35 - 57.090 In 2023, I worked, I was an assistant.

02:35 - 58.858 I was the backup on on elections.

02:35 - 59.694 So I was present.

02:35 - 02.095 But so you have firsthand knowledge of all.

02:36 - 03.119 Yes. Okay.

02:36 - 08.025 When this error first manifested,

02:36 - 15.342 do we know how many votes were entered up until that point?

02:36 - 17.043 When when errors were. Okay?

02:36 - 20.070 We don't have an exact number because it's it was no way to tell.

02:36 - 24.317 But as soon as it came in and of course, it wasn't every vote

02:36 - 28.521 because presumably some folks voted yes for both retention.

02:36 - 31.291 Some folks voted no and they wouldn't be implicated here.

02:36 - 33.126 It was only where it was a yes no where a no.

02:36 - 34.527 Yes. Right.

02:36 - 36.229 So do we have an order of magnitude?

02:36 - 38.298 How many votes there were?

02:36 - 41.859 Voters were impacted who split their votes, so to speak.

02:36 - 44.204 I honestly don't I do know that.

02:36 - 48.932 And in retention elections it's typically 70% or higher for retention.

02:36 - 51.911 So now I'm I'm just trying to get it.

02:36 - 52.546 It would have been vote.

02:36 - 55.706 We're talking about 100 people who voted split

02:36 - 58.952 a thousand, 5010.

02:36 - 01.054 Do we have any understanding of that?

02:37 - 04.081 Is it a is it a significant or is it de minimis number.

02:37 - 08.328 Because the if, you know, because the issue was detected

02:37 - 11.331 so early, my assumption is that it is de minimis error.

02:37 - 15.702 And that would be my the other reason

02:37 - 18.729 I would believe that is no candidate,

02:37 - 22.442 no voter, no party challenged the results of this election.

02:37 - 24.778 There was a window certification.

02:37 - 25.945 There's a five day window

02:37 - 28.948 that anyone who thought there was an issue that actually affected

02:37 - 32.376 the election could have was free to file their challenge to this election.

02:37 - 34.888 The results of this election were not challenged.

02:37 - 36.122 No one has disputed that.

02:37 - 40.460 This election, which just quickly just I'm so when one more question,

02:37 - 43.487 if the voter hadn't recognized the error

02:37 - 46.890 with the county, have recognized the error independently,

02:37 - 51.037 if assuming no voter had recognized an error

02:37 - 54.698 at the by the end of election day, it never would have been known

02:37 - 58.745 because the votes would have been the voting,

02:37 - 02.306 the votes would have been counted, and the the votes would have been okay.

02:38 - 07.711 So, so but the purpose of that paper is for a recount, right? Correct.

02:38 - 12.015 So then had there been a recount, then it would have emerged.

02:38 - 13.893 No, because the recount.

02:38 - 19.556 So what happens is and this gets a little I'll just be a little over my time. So

02:38 - 23.470 on an Excel machine, you touch a button

02:38 - 26.897 on the screen that tells the machine what to put on the paper.

02:38 - 29.242 You then have to approve the paper.

02:38 - 33.437 The papers then tabulated by a separate but not connected

02:38 - 37.808 by a separate device and then securely stored.

02:38 - 42.789 The paper is tabulated, or that what is done on the machine is tabulated.

02:38 - 44.123 Paper. What did they said?

02:38 - 45.859 What is written on the paper is tabulated.

02:38 - 48.862 There is no direct connection between touching the screen and

02:38 - 49.797 what gets tabulated.

02:38 - 52.265 The tabulation is based on the paper.

02:38 - 54.434 Then what has to happen for a recount is

02:38 - 57.861 those paper must be counted on a different machine.

02:38 - 01.207 There's a different machine that can tabulate those papers.

02:39 - 03.209 They are run on,

02:39 - 06.379 one of the, the high speed sorters that are used for the mail in ballots,

02:39 - 09.749 because the mail in big paper ballots are actually counted on the same machine.

02:39 - 13.386 But if the voter hadn't seen it, it would come up as wrong votes.

02:39 - 16.413 No would have come as correct votes because the votes were right.

02:39 - 18.791 The label was wrong. The votes were right.

02:39 - 19.926 So that's the important.

02:39 - 22.929 The yes was in the right place. The paper.

02:39 - 25.598 On the paper, the yes was actually in the right place

02:39 - 28.301 where it was supposed to be for the proper judge. So.

02:39 - 29.536 But what what were the.

02:39 - 33.806 I'm not so what happens is you have let me just ask my question.

02:39 - 34.830 So you

02:39 - 36.076 when when the

02:39 - 39.546 voter looked and saw oh my gosh, it flipped my votes.

02:39 - 40.747 What were they looking at?

02:39 - 42.615 What they were looking at is the paper.

02:39 - 44.717 And what would be listed on the paper were the

02:39 - 48.345 the names of the judges running for retention and then yes or no.

02:39 - 49.689 Okay.

02:39 - 52.525 So what happens is, is that the vote

02:39 - 55.028 the that is that used for tabulation.

02:39 - 56.362 No. Okay.

02:39 - 58.765 What's used for tabulation is the bar code okay.

02:39 - 01.267 So what what is the purpose of that paper then.

02:40 - 03.770 Is that for a hand recount.

02:40 - 06.172 The paper makes it easier

02:40 - 09.008 for the voter to it's an interpretation of the bar code.

02:40 - 10.910 But the bar code is what's used for the recount.

02:40 - 13.937 Is that the paper for the manual audit?

02:40 - 15.214 Yes. Under the statute.

02:40 - 17.617 So it was a manual on it. Yes. It.

02:40 - 20.644 So naturally you are aware of this problem.

02:40 - 22.388 Yeah. But it flipped the votes.

02:40 - 27.484 And if you did the manual audit you would make note if it's a yes no

02:40 - 31.221 we reverse them and that can be double checked

02:40 - 34.367 because contrary to an assertion,

02:40 - 34.668 there's

02:40 - 39.463 there's a fact asserted by the appellants that's not adduced anywhere in evidence

02:40 - 42.799 that the bar code can't be read by a person, and that's just false.

02:40 - 44.711 So the bar code can be double checked.

02:40 - 47.647 The bar code is just a pattern of of thin and thick lines,

02:40 - 49.515 the same way a person can read.

02:40 - 50.617 How do I read the bar code?

02:40 - 54.087 Then you would you would have to be taught just like you had to be taught

02:40 - 56.556 at some point how to read letters and how to read numbers.

02:40 - 58.524 You'd have to be taught what symbol meant. Yes.

02:40 - 59.559 And what symbol meant no.

02:40 - 01.761 And then you could read the bar code because this is the bar code for.

02:41 - 03.363 Yes, this is the bar code for no.

02:41 - 05.798 They look different. They are unique.

02:41 - 10.737 The patterns are unique on for each vote but identical on every ballot.

02:41 - 11.971 So every ballot that voted

02:41 - 14.998 yes would have an identical bar code in an identical spot.

02:41 - 15.376 Thank you.

02:41 - 18.502 So that I thank you very much.

02:41 - 26.453 Good afternoon, Your Honors.

02:41 - 31.748 I just I just want to make a few points and maybe help clarify, the situation.

02:41 - 35.819 So with respect to these machines, there's really three components to the vote.

02:41 - 39.699 There's the the label of the race, there's the actual vote,

02:41 - 41.834 which in this case were the yeses and no's.

02:41 - 43.269 And then there's the bar code.

02:41 - 47.531 The situation here is the label of the race was was transposed

02:41 - 49.976 on the ballot card.

02:41 - 54.447 Now normally the label of the race doesn't have the name of a judge or a candidate.

02:41 - 57.116 It just has the label of the race, i.e.

02:41 - 59.819 president of the United States or something like that.

02:41 - 03.480 But but in the case of a retention election, because it's more of a question,

02:42 - 05.248 that's why it's in the label.

02:42 - 08.761 The yes or no

02:42 - 10.897 for the retention elections is a vote.

02:42 - 11.865 That was correct.

02:42 - 14.891 It matched what the voter selected on the screens.

02:42 - 17.170 And in fact, there's a screen on the voting system

02:42 - 19.539 where they can review that would have matched those. Yes.

02:42 - 22.532 And those would have matched what's on the ballot card.

02:42 - 25.411 But in a, in a non retention election, of course,

02:42 - 28.805 you, you'll be able to see the name of the candidate that you voted for.

02:42 - 31.350 Whereas here it's a little, it's a little more difficult.

02:42 - 34.420 I grant, because of the unique nature of retention elections.

02:42 - 36.189 And it's a yes or no selection.

02:42 - 39.216 But but in a normal election which again.

02:42 - 40.626 Well, I'm trying to understand

02:42 - 44.621 how it would be the the correct vote if things were transposed.

02:42 - 50.093 So candidate A is first candidate B.

02:42 - 52.573 And if I

02:42 - 56.600 vote yes for candidate A and no for candidate B

02:42 - 01.514 on the paper, it would say candidate A, yes,

02:43 - 05.208 candidate B no, or would it be reversed?

02:43 - 09.479 It would be reverse only in the sense that the label is reversed.

02:43 - 11.557 So if I looked at it, it would look like

02:43 - 15.485 it was not capturing my vote, even though it was capturing my.

02:43 - 17.163 That's correct.

02:43 - 20.190 And so if people change their vote

02:43 - 24.528 in order to try to make it match, that's when it would have been incorrect.

02:43 - 27.974 Correct? Okay.

02:43 - 31.802 Since this was human error and we're kind of focused on

02:43 - 37.741 just this instance, but can't human error produce any kind of malfunction

02:43 - 40.877 in the voting machine if it's susceptible to that?

02:43 - 45.982 So why is there not a concern with the department about that?

02:43 - 49.162 And if there is no machines,

02:43 - 53.032 if there are no machines, that can prevent human error.

02:43 - 56.059 I guess that's, kind of a disputed fact here,

02:43 - 00.907 then has the department considered now increasing the issuing

02:44 - 04.243 a directive, increasing the testing requirements for all the counties

02:44 - 07.446 that have those machines so that this

02:44 - 10.473 or any other human error can be avoided?

02:44 - 11.884 We actually did that, Your Honor.

02:44 - 14.153 We revised our directive to to account

02:44 - 17.890 for this unique situation and to ensure that counties would,

02:44 - 21.685 in the way that they test during lodging, accurate testing would find this error.

02:44 - 24.764 So and that would prevent any human error.

02:44 - 26.165 Is that what you're saying?

02:44 - 28.935 It would prevent any human error insofar as this

02:44 - 31.470 this issue was just this issue with the labels.

02:44 - 35.398 Yeah, I'm concerned because voters don't always read the what they've written

02:44 - 36.310 and their votes.

02:44 - 39.145 They might not go, I think they voted and see another paper.

02:44 - 41.280 They don't read it, they think they're done.

02:44 - 44.717 And then you have a lot of wrong votes or I understand that the honor.

02:44 - 46.943 But to to echo what my colleagues said,

02:44 - 49.188 there's no system that I'm

02:44 - 54.026 aware of that doesn't require humans programing the ballot,

02:44 - 57.621 the labels of the race, the candidates and all that.

02:44 - 59.799 Those things that go into the.

02:44 - 01.200 You've done studies on that.

02:45 - 04.227 You've done research.

02:45 - 05.505 You've the

02:45 - 10.166 the department has verified this by researching those.

02:45 - 13.980 This isn't just

02:45 - 15.314 what you think.

02:45 - 16.883 And how do you let me put it this way?

02:45 - 19.910 I don't think they've presented anything in the record.

02:45 - 23.322 From their perspective, that would show that

02:45 - 26.349 that's not the case.

02:45 - 29.495 They essentially want a system to be decertified.

02:45 - 29.930 But again,

02:45 - 33.766 the system was certified by the EEOC that it complies with the two requirements

02:45 - 36.836 that they're discussing, that it has a capability

02:45 - 39.863 of being manually audited, which it does.

02:45 - 43.776 There's no evidence that they don't have

02:45 - 46.579 they haven't produced any evidence that disputes that.

02:45 - 48.814 And it can be audit.

02:45 - 51.341 It can be verified because

02:45 - 53.552 the voter can look at the yes.

02:45 - 56.589 And it knows or in the case of an honor retention election, they can look

02:45 - 00.183 at the name of the candidate and confirm that that's what they voted for.

02:46 - 05.922 So I think in conclusion, Your Honor,

02:46 - 10.202 the court should affirm the order below because it correctly interpreted, however,

02:46 - 13.229 because its decision is supported by substantial evidence

02:46 - 16.366 and because the remedy which petitioner seek is not appropriate

02:46 - 19.803 to address any possible violation which may or may have occurred.

02:46 - 23.673 Thank you very much.

02:46 - 28.821 And, you have three minutes.

02:46 - 31.848 Thank you, Your Honor.

02:46 - 34.126 A couple quick points

02:46 - 37.654 there regarding bar codes being readable.

02:46 - 42.092 That is not something that was an allegation or,

02:46 - 46.038 the state nor the county presented no evidence that would allege

02:46 - 47.964 that a human person can read a bar code.

02:46 - 52.578 Certainly a voter there in the booth looking at their paper,

02:46 - 56.673 it has a bar code on it, and it has the readable text.

02:46 - 01.111 That person, is not trained to read a bar code.

02:47 - 04.123 That seems to be something that requires special training.

02:47 - 07.150 Something extraordinary.

02:47 - 10.954 And then as far as a manual audit,

02:47 - 14.100 the assertion that

02:47 - 17.336 a manual audit could only occur by throwing the ballot back

02:47 - 20.463 into the machine for reading by a bar code, a separate machine. Yes.

02:47 - 26.045 Another form of a manual audit, again, one that actually uses human hands and eyes

02:47 - 32.018 and uses the definition of manual, related to or worked or done by machines.

02:47 - 35.011 Something that's not worked or done by machines,

02:47 - 38.114 would have to rely only on the text.

02:47 - 41.627 Regarding logic and accuracy testing,

02:47 - 45.188 it is excellent that more rigorous standards are being,

02:47 - 48.100 applied and they should

02:47 - 51.628 every permutation possible on a ballot should be tested.

02:47 - 56.675 That is part of what is suggested as a requirement 52 U.S.C.

02:47 - 01.004 section 21081, which also refers

02:48 - 05.885 that error rates, should be done according to the standards

02:48 - 08.912 established by the Federal Election Commission.

02:48 - 12.715 In other administrative agency guidelines

02:48 - 16.019 issued in, I believe, October of 2002,

02:48 - 19.765 however, increased logic and accuracy

02:48 - 22.792 testing still does not completely resolve

02:48 - 26.138 fair elections and petitioner Stacey Redfield

02:48 - 30.166 complaint again that these machines are capable of printing a mismatch.

02:48 - 32.745 Surely,

02:48 - 36.272 we all acknowledge human error is possible in various different ways.

02:48 - 41.311 People do have to work with machines and people themselves can make mistakes.

02:48 - 45.458 However, this particular issue, the printing of a mismatch

02:48 - 49.085 between the text and the voters intended vote

02:48 - 51.497 is the issue.

02:48 - 53.666 And other machines do not do that.

02:48 - 57.369 This, as far as this being an extraordinary remedy

02:48 - 00.396 or an extraordinary remedial plan,

02:49 - 03.375 all three counties in Pennsylvania,

02:49 - 07.537 that use the Eve Excel are still required to comply with Hava.

02:49 - 11.574 Even though this machine has been certified,

02:49 - 14.286 if it does not comply with Hava.

02:49 - 17.790 Regarding the reliable manual

02:49 - 20.817 audit requirement with a permanent paper record,

02:49 - 23.920 then it should never have been certified in the first place.

02:49 - 28.525 We ask this court to enable confidence in our elections,

02:49 - 31.537 acknowledgment that there would have been a harbor violation of this

02:49 - 35.098 occurred in a federal election and enable a remedial plan.

02:49 - 37.443 Thank you. Thank you very.

02:49 - 40.904 Can you give me the the other two, counties that you say use?

02:49 - 44.316 I believe it's Cumberland County and Philadelphia County.

02:49 - 47.243 Okay. Thank you, thank you, thank you very, very much.

02:49 - 51.757 The final matter we will hear today stems from an incident that occurred

02:49 - 55.285 during an after school program in the Leechburg Area School District.

02:49 - 58.597 When we see a minor who was sexually assaulted

02:49 - 01.791 by another student, also a minor, in a boy's bathroom,

02:50 - 06.038 as his mother filed a complaint against the school district asserting

02:50 - 09.532 claims of negligence and negligent infliction of emotional distress.

02:50 - 14.413 The school district filed preliminary objections, arguing that the complaint and

02:50 - 18.541 failed to plead facts sufficient to show that the school district was negligent,

02:50 - 21.187 that the school district had a special relationship

02:50 - 24.323 with either student, or that the school district had a duty

02:50 - 28.484 to protect EC from unanticipated harm caused by another student.

02:50 - 32.965 After a hearing, the Court of Common Pleas of Armstrong County sustain

02:50 - 36.001 the preliminary objections as to negligent infliction

02:50 - 39.329 of emotional distress, but were overruled as to negligence.

02:50 - 40.640 In its

02:50 - 43.776 brief, the school district argues that this case presents a matter

02:50 - 48.647 of first impression, requiring analysis of the recently enacted sexual abuse

02:50 - 51.975 exception to the Political Subdivision Tort Claims Act.

02:50 - 55.487 This exception provides that a political subdivision

02:50 - 58.757 can be held liable for sexual offenses or injuries

02:50 - 02.619 suffered, whereas the result of actions or omissions of the local agency,

02:51 - 06.256 in this case the school district, which constitute negligence.

02:51 - 11.394 The school district argues that the sexual abuse exception does not apply here,

02:51 - 16.442 where, as the school district state, two students willingly entered

02:51 - 20.103 a boy's bathroom together after the school had been dismissed for the day,

02:51 - 24.207 and there was no showing in the case that any sexual assault was foreseeable,

02:51 - 28.578 or that there was any special relationship between the school district and EC,

02:51 - 31.981 such that the school district had a legal duty to protect her.

02:51 - 33.927 In response,

02:51 - 35.194 Izzy's mother argues

02:51 - 39.289 that the allegations at issue here fall within the sexual abuse exception,

02:51 - 42.392 and that the school district owed a duty to easy

02:51 - 45.428 and that it was on notice of the risk in support.

02:51 - 49.465 Izzy's mother cited to three incidents reported by the media

02:51 - 50.876 related to violent

02:51 - 54.337 or sexually inappropriate behavior occurring within the school district,

02:51 - 58.217 including an incident that occurred in the same bathroom as the assault.

02:51 - 59.618 At issue here.

02:51 - 02.645 Let's go to that argument now.

02:52 - 04.023 May it please the court.

02:52 - 04.991 My name is Amy Schram.

02:52 - 07.059 I'm here on behalf of the Leechburg Area School District.

02:52 - 10.229 Today, I would respectfully request two minutes of rebuttal time.

02:52 - 13.065 Two minutes. You have it. Thank you.

02:52 - 16.092 We are here this morning on the district's appeal of the lower court's,

02:52 - 18.971 decision to overrule preliminary objections.

02:52 - 22.074 The material facts as pled in this case are relatively simple.

02:52 - 24.510 And for today's purposes, not in dispute.

02:52 - 28.147 A minor girl and a minor boy went into a boys restroom in the Leechburg.

02:52 - 30.015 Area School District two school

02:52 - 33.042 immediately prior to the dismissal of the high school at 230.

02:52 - 34.753 Prior to the dismissal of the elementary

02:52 - 37.780 at 3 p.m., the two students and exited the restroom.

02:52 - 39.525 The minor girl has alleged that

02:52 - 42.552 in that time period, the boy raped her in the bathroom.

02:52 - 44.797 The incident was reported to the district,

02:52 - 47.566 and the district immediately turned the matter over to the police.

02:52 - 50.169 Plaintiff, on behalf of her minor daughter, has filed a complaint

02:52 - 54.006 sounding solely in negligence under Pennsylvania state law, the plaintiff

02:52 - 59.602 asserts that the district breached duties based on the school's custodial control,

02:52 - 03.806 which created a heightened duty of care and created a special relationship.

02:53 - 07.710 The district filed these preliminary objections on the basis of a demurrer.

02:53 - 09.188 Under the facts is pled.

02:53 - 12.991 No recovery is possible as a matter of law because the district does not have any

02:53 - 15.027 such duty, nor is one implied

02:53 - 19.021 by the district's custodial responsibility of its students under and local parents.

02:53 - 23.135 The lower court denied the district's preliminary objections,

02:53 - 26.138 finding that the district has a duty to take reasonable steps

02:53 - 28.574 to protect its students from sexual assault

02:53 - 32.368 based on a finding that 1317 of the Pennsylvania School Code

02:53 - 36.048 creates a particular relationship with students and creates

02:53 - 40.009 an absolute obligation to ensure the safety and welfare of students.

02:53 - 43.479 Due to the district's standing in loco parent is,

02:53 - 47.150 the lower court must be reversed because it aired as a matter of law

02:53 - 50.262 and under the facts, as alleged in the amended complaint,

02:53 - 53.799 no recovery is possible because school districts have no duty

02:53 - 57.927 to protect students from the unanticipated and violent acts of another student

02:53 - 01.264 when it does not stand in a special relationship to either.

02:54 - 05.077 Plaintiff's complaint sounds solely in negligence.

02:54 - 07.880 Obviously, the district is a local agency is entitled to

02:54 - 10.907 immunity under the Political Subdivisions Tort Claims Act.

02:54 - 14.520 To recover, first, the plaintiff must show a common law

02:54 - 16.622 cause of action against the agency

02:54 - 20.325 and then the applicability of an exception under this to the state.

02:54 - 25.531 Claims Act before examining are exceptions to governmental immunity.

02:54 - 30.126 However, as a threshold matter, plaintiff must establish the district's negligence.

02:54 - 32.795 Plaintiff cannot do so for multiple reasons.

02:54 - 34.507 She does not

02:54 - 37.509 allege any state created danger theory of liability,

02:54 - 40.536 and is only proceeding on general common law negligence.

02:54 - 44.640 Plaintiff cannot show a duty under the circumstances as planned,

02:54 - 48.578 because a school district has no general duty imposed under the law

02:54 - 52.491 to impress to protect its students from unanticipated harm of third parties.

02:54 - 54.726 Well, excuse me,

02:54 - 59.722 for PIOs, don't we take the affirmative fact in the yes as pled?

02:55 - 03.335 And they pled that the school district had knowledge of prior

02:55 - 05.737 complaint of pier on Pierce sexual assault.

02:55 - 08.674 I do I do address that a little bit further here.

02:55 - 10.442 Could you do it now? Certainly.

02:55 - 15.471 There attempts there are to use three newspaper articles from 2016

02:55 - 21.944 and claim that that knowledge of three unsubstantial ated media reports,

02:55 - 25.715 one of a hazing incident with with bass basketball players, but

02:55 - 29.761 that those three allegations that didn't deal with student on student

02:55 - 32.965 sexual assault in a restroom gave the district

02:55 - 36.201 some sort of knowledge that this particular

02:55 - 39.395 sexual assault between students would occur in their restroom.

02:55 - 40.540 More than five years.

02:55 - 44.376 Well, if we assume that fact to be true, if we, as I mean,

02:55 - 47.670 as we do under the preliminary objection standard,

02:55 - 52.208 would you agree that that would help

02:55 - 54.319 their case?

02:55 - 55.754 I don't think you can assume

02:55 - 58.781 that there's any knowledge to be imputed from a newspaper article.

02:55 - 03.152 They they're imputing that pure knowledge based upon these media reports,

02:56 - 06.999 not based on any intentional knowledge that they would have gleaned from anything

02:56 - 08.800 other than a media report.

02:56 - 12.804 And our position, the district's position, is any of those media reports,

02:56 - 16.499 even if true, I mean, well, if the media reports were true,

02:56 - 18.810 we wouldn't know that the media reports were true.

02:56 - 21.580 Even if they were true, they do not establish knowledge of

02:56 - 24.607 of any kind of foreseeable for this sort of section out.

02:56 - 27.085 That opens a whole nother can of worms.

02:56 - 31.623 If you were aware of media reports and didn't look into it at that time.

02:56 - 32.925 So I but go ahead.

02:56 - 34.717 I know you had other and just

02:56 - 36.596 your honor,

02:56 - 40.356 in response to that the district certainly if these

02:56 - 43.526 if these media reports were true, the district did investigate them.

02:56 - 46.838 However, the existence of such

02:56 - 50.075 even those those allegations as taken is true.

02:56 - 51.877 So there was a hazing incident.

02:56 - 55.747 We will assume there was a gun waved in a bathroom, and we will assume

02:56 - 00.309 that there was a substitute teacher who acted inappropriately with students.

02:57 - 02.387 Even those actions

02:57 - 06.582 don't put the district on notice that there was some sort of force,

02:57 - 10.620 the ability that there would be a student on student rape in its bathrooms.

02:57 - 12.497 Well, in.

02:57 - 13.132 Sorry.

02:57 - 16.292 You you referred to section 1317,

02:57 - 21.540 which, provides that basically every teacher

02:57 - 24.567 vice principal and principal in the public schools,

02:57 - 29.472 has the right this is sort of standing in loco parent is,

02:57 - 33.943 during the time they're there,

02:57 - 38.290 they have the same exercise, the same authority as to conduct

02:57 - 39.992 and behavior over the pupils

02:57 - 43.519 as the parents, guardians or persons in parental relation.

02:57 - 47.123 So why doesn't that,

02:57 - 51.903 impose, upon the district a duty to supervise students

02:57 - 54.906 while the students are under their authority?

02:57 - 58.501 Well, Your Honor, case law has established that there's no duty to do so.

02:57 - 00.846 And I would say,

02:58 - 04.149 close before his, which was a situation where there was

02:58 - 07.953 lack of supervision, where a child stabbed another student to death. So.

02:58 - 09.254 And there was no there was no.

02:58 - 10.389 Was there an environment,

02:58 - 13.291 though, that there was a letter or some sort of indication?

02:58 - 14.693 So while there,

02:58 - 18.888 we would have started with no obligation by the school district to supervise.

02:58 - 22.634 Isn't there an environment that the school district

02:58 - 25.961 voluntarily said it would supervise, like classic Good Samaritan?

02:58 - 28.507 I don't recall an

02:58 - 31.176 environment of that nature.

02:58 - 34.012 If there was what that change it if the school district

02:58 - 37.039 voluntarily undertook the duty,

02:58 - 41.553 I don't know of where a district would take undertake such a duty, except

02:58 - 45.147 where there is a special relationship, which would be perhaps on a field trip

02:58 - 47.526 or something of that nature, where there is a

02:58 - 50.953 different sort of relationship between the district and a student.

02:58 - 53.999 Doesn't the amended complaint allege that the district

02:58 - 57.026 represented to the parents and guardians,

02:58 - 02.331 that this district would supervise the students during the after school program?

02:59 - 05.377 I the amended complaint may say that,

02:59 - 09.171 but there is no there is no supervision requirement

02:59 - 13.385 where that would allege that there would be supervision. Yes.

02:59 - 17.556 But this doesn't mean to protect from unanticipated assaults.

02:59 - 20.125 It would be the same. That would happen in a regular school day.

02:59 - 21.993 So so this was like woods hop.

02:59 - 24.196 Is it your contention, the supervision is there,

02:59 - 27.223 making sure that the students use the equipment properly?

02:59 - 29.343 Correct. Not that they're going to run out.

02:59 - 34.239 Behind the bleachers and engage in gambling.

02:59 - 35.208 Correct? Correct.

02:59 - 36.842 Your honor,

02:59 - 39.111 that you cited to the Doe case.

02:59 - 40.846 So when you supervise.

02:59 - 43.873 Okay, wouldn't you anticipate that be

02:59 - 47.510 some faculty member or some administrator in the hallway?

02:59 - 51.647 I mean, there is nobody apparently walking in the hallway,

02:59 - 55.751 nobody going in and out of the bathroom

02:59 - 57.996 and that, you know, the school did represent that.

02:59 - 01.023 It was a sanctioned activity of the school.

03:00 - 03.602 This is this is all true, Your Honor.

03:00 - 07.539 However, the nature of students in is to evade

03:00 - 11.500 liability or to evade supervision and evade detection.

03:00 - 14.946 And then in their amended complaint, they do acknowledge

03:00 - 17.940 that the students went into the restroom together

03:00 - 22.687 well, with the intention of evading supervision, because we have a girl

03:00 - 26.849 walking into a men's restroom where she shouldn't have been herself.

03:00 - 32.188 So to a certain extent, there is an element of evading of supervision.

03:00 - 36.625 Well, I think the the allegations are that the male student

03:00 - 38.570 lord, the female

03:00 - 41.606 student into the restroom and, and they were in there,

03:00 - 45.401 the security footage showed that they were in there for 17 minutes.

03:00 - 46.145 That is correct.

03:00 - 48.013 That's

03:00 - 50.749 should not I mean, how how long was a school period?

03:00 - 53.552 I remember there were 40 minutes, 45 minutes.

03:00 - 55.687 That's almost half of a school period.

03:00 - 00.492 Granted, it's an after school program, but that's a long time for these kids

03:01 - 04.663 to be out of their the direct line of sight of whoever

03:01 - 08.257 was supervising them in the woods hop, you know, that she was screaming, no,

03:01 - 11.703 actually they never she did not make any comments at all.

03:01 - 12.405 Okay.

03:01 - 16.198 Would you respond, though, your honor, it was a voluntary after school

03:01 - 17.776 participation event.

03:01 - 21.337 Nonetheless, don't you have a teacher there supervising or someone from staff?

03:01 - 25.241 Were these students permitted to run roughshod

03:01 - 28.444 alone in the woods hop?

03:01 - 30.188 They actually were not in the woods hop.

03:01 - 32.390 They it was at dismissal time.

03:01 - 36.628 So students had the choice to either get on their bus and go home, or report

03:01 - 37.963 to one of the wood shops

03:01 - 39.464 or one of the rooms

03:01 - 42.491 where they were doing their projects, or they needed extra work.

03:01 - 45.637 Now, of course, those facts aren't alleged because that's just what the seven hour

03:01 - 46.872 time is of the district.

03:01 - 50.342 So you you cited to the Doe case, and I'd like you to address it

03:01 - 53.945 because in that case, the court declined to dismiss a claim for negligence

03:01 - 58.007 against the district based on the district's alleged failure to protect

03:01 - 02.721 Doe from the known risk of sexual abuse by another minor child.

03:02 - 03.745 Minor child.

03:02 - 07.525 So Doe was out of Harrisburg, Your Honor.

03:02 - 12.731 And, Doe was the case where the the district had knowledge

03:02 - 18.027 that there was sexual, abuse or harassment between the boy and the girl.

03:02 - 21.706 The girl asked for a hall pass in her class.

03:02 - 23.608 She took her hall pass and she left.

03:02 - 26.969 And immediately following, the teacher gave the boy a hall pass

03:02 - 29.714 and he followed her, and he dragged her into the bathroom

03:02 - 31.182 so that in that case, the district

03:02 - 35.344 had a special relationship to the victim because they already knew.

03:02 - 37.355 But we're here on Potts again. Correct.

03:02 - 40.025 But they haven't alleged any special relationship.

03:02 - 44.186 They allege their special relationship stems outlets aren't 1817 of the school.

03:02 - 46.598 I'm sorry they're alleging notice.

03:02 - 49.567 They're alleging notice and special relationship.

03:02 - 53.905 So just to do out of curiosity, do not have anyone going up

03:02 - 56.207 and down the halls during the school day or is there.

03:02 - 00.712 No, I mean, most schools now, it seems like they have a security guard on staff

03:03 - 04.907 or they're janitors coming in right at the end of the day, no one's there.

03:03 - 07.419 Now again, Your Honor, this is on post to this factual record.

03:03 - 08.687 Hasn't been determined,

03:03 - 12.857 but in at Leechburg Area School District there were there were security guards.

03:03 - 14.993 This was after dismissal period.

03:03 - 18.330 And again these students were intending to evade supervision,

03:03 - 19.965 which was the intention of the children.

03:03 - 22.233 Did you say at the beginning, prior to dismissal,

03:03 - 26.128 it was right at the very end of the day, still part of the dismissal.

03:03 - 30.399 Okay.

03:03 - 34.379 And would you like any more information on the Doe case?

03:03 - 35.947 I know that's where we left off.

03:03 - 39.908 Okay, so basically, the district's position is

03:03 - 44.613 the plaintiff has not pled any sort of notice.

03:03 - 46.958 The notice is insufficient with what they plead.

03:03 - 48.660 All facts taken is true.

03:03 - 49.128 Therefore,

03:03 - 53.255 without any general for C ability, we have to default a special relationship.

03:03 - 56.401 And there there creation of special relationship

03:03 - 00.396 is based upon the custodial control of its students under 1317.

03:04 - 03.842 That alone does not create a special relationship.

03:04 - 06.144 All of the other cases that have survived

03:04 - 09.571 the pleading stage in Pennsylvania under the sexual abuse exception

03:04 - 12.975 all have some sort of notice or some sort of knowledge.

03:04 - 16.145 But let me throw in a hypothetical here.

03:04 - 19.581 Instead of this happening at the end of the day at or around dismissal.

03:04 - 23.385 And it happened right before lunch, would your position be different?

03:04 - 24.996 Same facts pled?

03:04 - 25.664 No, Your Honor,

03:04 - 29.124 my position wouldn't be different because school districts in general.

03:04 - 32.494 And I would just out of fact, let's say the kids cut class,

03:04 - 33.905 which would probably happen.

03:04 - 37.475 We don't go searching for a child who cuts cat class.

03:04 - 39.677 They get a disciplinary slip at the end of the day,

03:04 - 42.971 that's that's how discipline works across the board in our school districts.

03:04 - 45.183 We don't.

03:04 - 46.484 We give them freedom.

03:04 - 48.620 Children aren't aren't really prisoners.

03:04 - 51.322 They get to wander around, they get to make choices.

03:04 - 54.192 Sometimes they make bad choices and cut class.

03:04 - 57.186 But we don't go find them when they go missing.

03:04 - 58.898 Thank you.

03:04 - 01.890 Thank you.

03:05 - 11.276 Good afternoon.

03:05 - 15.270 My name is Amy Matthew, and I'm here on behalf of the plaintiffs in the case.

03:05 - 19.007 Lori Bogdan and Minor Eck.

03:05 - 23.312 You guys covered a lot of what I was going to say, so I'll jump right in.

03:05 - 27.192 I first want to go through, address an argument that was in the schools

03:05 - 30.495 reply brief since I haven't had a chance to to talk about that.

03:05 - 32.397 Yeah. And that's the merit decision.

03:05 - 34.399 And whether it applies today.

03:05 - 37.402 This case was decided decades before the sexual abuse

03:05 - 40.429 exception to immunity was added to the Claims Act.

03:05 - 44.700 Therefore, the court was only deciding whether the real property exception

03:05 - 48.871 applied to a case where a young girl was sexually assaulted in the school hallway.

03:05 - 52.508 The court's analysis started and ended there.

03:05 - 55.553 The only mention of foreseeable

03:05 - 00.024 was whether the sexual assault was a foreseeable use of the school's hallway.

03:06 - 03.428 It was not about whether a sexual assault on campus

03:06 - 06.831 was foreseeable, and whether they needed had a duty to protect against it.

03:06 - 09.858 So we never got that analysis, analysis in the merit case,

03:06 - 12.961 because that exception did not exist when it was decided.

03:06 - 15.006 Was it foreseeable here?

03:06 - 15.341 Yeah.

03:06 - 18.309 So and we've pled notice in three different instances.

03:06 - 21.336 And I know that, the school district has tried to,

03:06 - 25.517 separate themselves from those, but one was a student on student

03:06 - 29.521 sexual assault that occurred in a bathroom in a locker room on campus repeatedly

03:06 - 33.458 over a year, which we have to take is true at this stage.

03:06 - 36.895 So how would the district's inadequate

03:06 - 40.222 supervision have increased the risk of harm to her?

03:06 - 42.667 Yeah, well, we haven't had discovery. Right.

03:06 - 45.737 And okay, so but that's the allegation we accept as.

03:06 - 47.172 Yes. Yes, exactly.

03:06 - 51.843 I think, we don't know in those five years if they change their policies

03:06 - 53.678 to make it safer for children,

03:06 - 57.248 if they change their policies to make it less likely that sexual abuse

03:06 - 59.717 would happen on campus and in their hallways

03:06 - 02.420 and in their bathrooms, because we haven't gotten there yet,

03:07 - 05.581 because we're at such an early stage of the litigation right now.

03:07 - 08.984 So we have pled what we can from the public record

03:07 - 13.198 as to notice into prior incidents at the school, and we can't get

03:07 - 17.459 any information as to the individual perp either, because he's a minor.

03:07 - 19.604 So we that's not a public record.

03:07 - 24.242 I can't see if he has a prior history of, of, harassment or sexual abuse

03:07 - 27.636 at the school because we can only get that through a subpoena and,

03:07 - 30.272 discovery in this case for,

03:07 - 32.885 for C ability.

03:07 - 35.911 You say the prior sexual assault.

03:07 - 38.957 That was correct.

03:07 - 40.024 Don't correct me if I'm wrong.

03:07 - 41.125 Tell me what it was.

03:07 - 44.329 In general terms, it was a hazing incident.

03:07 - 45.496 Male on male.

03:07 - 48.032 Yeah. Hazing puts it pretty lightly.

03:07 - 51.369 The boys basketball team was alleged to have taken something

03:07 - 54.973 they made from woods hop class, hold each other down in the locker room

03:07 - 56.774 and anally penetrate one another.

03:07 - 00.078 And so the allegation in the current complaint

03:08 - 03.105 is that the school district,

03:08 - 06.708 should have it would be foreseeable

03:08 - 10.746 that a male and female 13 year olds would

03:08 - 14.616 voluntarily walk, which is the allegation, walk into a bathroom,

03:08 - 17.795 and that a sexual assault would occur there.

03:08 - 19.931 I would answer that in a few different parts.

03:08 - 24.469 I think, generally speaking, sexual assault in a school is foreseeable,

03:08 - 28.573 especially in the state of Pennsylvania, where we've had Sandusky and allegations

03:08 - 29.841 against Penn State

03:08 - 33.602 and thousands of Catholic Church cases with the involved schools.

03:08 - 35.347 But I

03:08 - 39.751 believe that those instances, the three taken together, also put them on

03:08 - 42.911 notice that this was a particular problem at their school.

03:08 - 48.493 This was a sexual assault, was a particular problem

03:08 - 52.297 at that school as a result of the sexual abuse

03:08 - 55.600 that occurred in the, boys locker rooms. Yes.

03:08 - 58.836 And the negligent supervision that led to those, those accounts, I would

03:08 - 02.206 add that the the other allegations, one was the waving of

03:09 - 05.476 the gun was in the exact same bathroom where this sexual assault occurred.

03:09 - 11.683 So they knew that kids were going into that particular restroom to to be unseen.

03:09 - 14.710 And it remained that way for the next five years, as it turns out.

03:09 - 17.789 And the other one was a teacher.

03:09 - 22.050 A substitute teacher had 15 complaints against him from different students.

03:09 - 25.396 And then it's alleged in the newspaper article and from reports

03:09 - 29.167 that they covered it up for six months before they did anything about it.

03:09 - 32.737 So while the school is asking us to have more notice evidence

03:09 - 35.764 and more arguments as to the force, the ability of this claim,

03:09 - 39.301 they're actively covering up the cases that have existed in the past.

03:09 - 41.002 Allegedly, yes,

03:09 - 43.881 which have to be taken as true at this stage

03:09 - 46.908 because we have had no discovery on the issue.

03:09 - 50.254 So I do think this comes down

03:09 - 53.281 to force the ability in this case. And,

03:09 - 57.953 we have we have argued in our brief, correctly, under Pennsylvania law,

03:09 - 00.698 that is an issue of fact for a jury to determine.

03:10 - 04.092 We have pled we've met the pleading standard or force the ability,

03:10 - 07.729 and now it's up to a fact finder after discovery to determine

03:10 - 11.266 if that that creates negligence on the part of the school.

03:10 - 12.344 It's not appropriate

03:10 - 17.372 to decide at the preliminary objections phase, when we have pled prior incidents

03:10 - 20.976 and a general knowledge of of sexual assault on campus

03:10 - 24.322 is, your does

03:10 - 27.349 your argument require us to expand

03:10 - 31.620 the districts in loco parent is authority

03:10 - 36.691 under section 1317 to supervise students with reasonable care?

03:10 - 39.570 Well, I'd say two things I would say.

03:10 - 42.206 I believe you brought this up earlier, that,

03:10 - 46.010 they took on an affirmative duty when they when they had an after school program

03:10 - 47.311 that was sanctioned.

03:10 - 51.440 So this is more this is sort of plus loco parent is plus.

03:10 - 55.486 Well, at teen 17 plus an affirmative representation

03:10 - 58.689 to the parents that if you leave your children

03:10 - 02.784 after school, will can, will supervise them.

03:11 - 07.122 Is that greater supervision than they had during the preceding

03:11 - 11.035 school day or the same?

03:11 - 12.904 I think it's the same as during the school day.

03:11 - 17.809 And actually the the code that was referenced earlier does say that

03:11 - 21.879 it applies to when they are in attendance and going in to and from their homes,

03:11 - 22.848 and that would include then

03:11 - 25.683 if they expand that school day by half an hour,

03:11 - 29.020 and then they get on a bus to go home, that would expand, I believe, to that

03:11 - 29.555 time.

03:11 - 32.590 So even without the representation, 1317

03:11 - 35.827 would cover, yes, I, I believe so.

03:11 - 40.031 I think the representation and the affirmative duty of providing

03:11 - 44.493 a service that includes having the care, custody and control of minors,

03:11 - 48.206 then you have to do that in a reasonable manner,

03:11 - 51.209 and it's up to a jury to determine if they have done so here.

03:11 - 55.480 It's not up to you all due respect, this court had a preliminary objection.

03:11 - 56.504 Stays.

03:11 - 02.720 So as I said in my brief, I don't think we need to

03:12 - 06.581 to get to the special relationship because I think we have adequately pled

03:12 - 09.126 that it was generally foreseeable.

03:12 - 13.088 I, I think if we have to if we take the school district's

03:12 - 17.435 view of walk ability, the only way that they would be liable

03:12 - 20.905 under this exception, and the only way that we could adequately plead

03:12 - 25.710 for suitability, is if student A has alleged this particular harm

03:12 - 29.304 in the past against student B, and now it's happening again,

03:12 - 32.807 or student B has

03:12 - 34.719 been in trouble.

03:12 - 37.421 Juvenile proceedings

03:12 - 40.949 or is alleged to have harassed other students just period.

03:12 - 44.061 That would create or c ability

03:12 - 47.088 that they should keep an eye on him.

03:12 - 48.733 Yeah, I agree with that.

03:12 - 52.494 But again, we don't have the the benefit of discovery at this point.

03:12 - 56.040 And to have those allegations, I, I can't think of a way

03:12 - 59.067 that we could get that discovery at this stage of the litigation.

03:12 - 01.636 You don't know whether he's been accused of,

03:13 - 03.981 harassing other students.

03:13 - 04.683 That's correct.

03:13 - 06.217 And I, in my experience,

03:13 - 10.011 representing hundreds of survivors of sexual abuse, especially children

03:13 - 16.327 the first time is usually not this violence, and, this intrusive.

03:13 - 19.230 So I would be surprised if you didn't have past incidents.

03:13 - 22.500 But again, I don't know because I haven't had the chance

03:13 - 25.527 to take that discovery.

03:13 - 36.948 In my view of the argument the school district is,

03:13 - 41.919 is trying to manipulate the duty and the force, the ability to say that

03:13 - 45.981 we're asking for strict liability here, and that's simply not the case.

03:13 - 49.627 There has we do still have to prove negligence,

03:13 - 52.063 and we have pled every element of negligence.

03:13 - 54.699 And then some in our complaint.

03:13 - 57.702 I think it is ultimately a jury's decision

03:13 - 01.296 whether they're they have reached a reasonable standard of care.

03:14 - 05.443 And if they have deviated from that standard of care and it led to the assault

03:14 - 10.147 of of the minor, victim in this case, we have pled those facts.

03:14 - 12.049 They must be taken as true.

03:14 - 15.710 And by alleging that the school sanctioned and after school program for middle

03:14 - 19.490 middle school students then failed to take any attendance

03:14 - 23.861 records, failed to have any form of accounting of which students were even

03:14 - 28.199 present in the program and attending it, and then providing negligence.

03:14 - 32.737 But, supervision and monitoring, if any, during that program is the basis

03:14 - 36.031 of our negligence claim, all of which has been thoroughly pled in our complaint.

03:14 - 38.809 We also

03:14 - 41.812 made the argument in our brief that foreseeable is an issue

03:14 - 45.040 for the jury, for the fact finder, and not an issue of law.

03:14 - 48.810 In response, the only case that was cited to to

03:14 - 51.922 to argue against that point was,

03:14 - 55.817 was the merit case, which again, was not a true issue for the ability.

03:14 - 58.829 It was about whether the real property exception applied

03:14 - 03.458 to a sexual assault case, which the court rightfully decided that it didn't.

03:15 - 04.069 Right.

03:15 - 07.295 That is not a deviation from, a

03:15 - 10.541 physical property

03:15 - 13.601 on the building of the of the school.

03:15 - 15.846 That is not the case here.

03:15 - 18.816 We now have an exception for this exact type of harm,

03:15 - 21.519 and we have that exception because it is reasonably foreseeable

03:15 - 23.411 that these happened in public schools.

03:15 - 25.724 The school

03:15 - 29.860 has erroneously argued that this isn't enough, though, that we have to either

03:15 - 33.621 prove that negligence per se, in which the school has,

03:15 - 35.466 deviated from some other

03:15 - 39.370 or violated some other statute, which is not required by the exception,

03:15 - 42.697 not required by the Tort Claims Act and not required by common law

03:15 - 47.378 or that, again, they had to have prior knowledge of our exact student

03:15 - 50.839 making complaints about that exact student in order to make it foreseeable.

03:15 - 54.618 This is reading it far too narrowly, which is exactly what the trial court

03:15 - 57.812 ordered, that the their version of foreseeable

03:15 - 01.358 was too narrow compared to common law and what the statute requires.

03:16 - 02.860 In Pennsylvania,

03:16 - 06.888 we are at the preliminary objections here, not summary judgment and not trial.

03:16 - 10.801 We have fulfilled our legal obligations of pleading the elements of negligence

03:16 - 14.462 and notice through three different, instances,

03:16 - 17.575 we have to be able to conduct discovery on this matter,

03:16 - 21.378 and we have to be able to let a jury ultimately determine

03:16 - 23.647 whether the school was negligent in their supervision

03:16 - 26.274 and whether that negligence led to the sexual assault.

03:16 - 28.186 If you have no

03:16 - 31.212 other questions, I will yield the rest of my time.

03:16 - 35.016 Thank you very much.

03:16 - 39.097 Briefly in

03:16 - 42.399 rebuttal, plaintiff's theory of liability.

03:16 - 44.468 And you heard her say it here today.

03:16 - 47.872 Sexual student sexual assault is generally foreseeable.

03:16 - 51.599 That would mean every single district across the state of Pennsylvania,

03:16 - 55.670 any time a sex abuse sexual abuse happened between two students,

03:16 - 59.107 just as judge pointed out, they snuck behind the bleachers,

03:16 - 01.085 the district would be liable.

03:17 - 03.721 That that is a complete, absurd result.

03:17 - 06.824 The theory of recovery here is attempting to create a private

03:17 - 09.951 cause of action based on an exception to the Torture Claim Act.

03:17 - 14.823 That that exception was added in 2019 as a direct response to that.

03:17 - 18.126 The Penn State Jerry Sandusky scandal.

03:17 - 21.338 The General Assembly, in creating that exception, made it

03:17 - 24.708 very, very clear that its intent was to waive immunity

03:17 - 28.770 for public entities guilty of covering up childhood sex assaults.

03:17 - 32.040 It is not to create a duty to protect

03:17 - 35.476 for child on child assaults at this point.

03:17 - 37.922 Oh, this is impervious to sorcery.

03:17 - 41.783 He also pointed out that there's been a history at the particular school.

03:17 - 47.689 So the district's response to that is, again,

03:17 - 51.559 they allege even if those things were taken as true,

03:17 - 54.839 there is no history of sex on student

03:17 - 57.866 sex, on sex assault in the restroom.

03:17 - 59.276 In this particular case,

03:17 - 03.037 there was a hazing incident that she references in the media reports

03:18 - 06.474 that was the only student on student sexual assault.

03:18 - 09.587 That is alleged and it was alleged from 2016.

03:18 - 13.724 So you're saying it has to be specifically set?

03:18 - 18.028 I mean, facts specific in order for a notice to be appropriate

03:18 - 22.166 or to to for a notice to be accepted, I think you have to take

03:18 - 24.268 into consideration two things.

03:18 - 27.295 One is that children tend to behave badly.

03:18 - 30.975 And number two, you need more than one

03:18 - 34.712 one single incest children tend to behave badly.

03:18 - 36.247 That's that's your position.

03:18 - 39.683 I'm saying that one incident cannot alone

03:18 - 42.710 establish notice because things children do.

03:18 - 45.980 Well, it doesn't seem like there's one incident here.

03:18 - 51.795 Granted they're not they're not all of sexual nature, but they're pretty serious.

03:18 - 54.822 I mean, waving a gun in the same restroom,

03:18 - 57.968 the what you phrase is hazing,

03:18 - 02.597 which seems to be a little bit or maybe a lot more than hazing.

03:19 - 08.045 This certainly looks like a case that needs

03:19 - 11.072 a little bit more discovery here before we're ready to knock this out.

03:19 - 16.010 I mean, it seems to me like you're trying to minimize these instances.

03:19 - 19.657 And I understand your argument with regard to the statute.

03:19 - 24.128 It's not a cover up, but, you know, we got to, interpret

03:19 - 28.132 the statute on the book, not what the legislative intent was.

03:19 - 29.466 We got to read the word.

03:19 - 35.339 So I think you have a difficult issue here, counsel, to overcome that.

03:19 - 39.367 And you're not doing yourself favors by trying to minimize those things.

03:19 - 42.246 And I know, Your Honor, we're not trying to minimize them.

03:19 - 43.847 We understand that they happened,

03:19 - 46.874 and the district took appropriate action in all those cases.

03:19 - 51.512 However, they're just not sufficient to provide notice of foreseeable

03:19 - 56.150 that sexual assaults happen generally on school campuses.

03:19 - 58.162 And that's the district's position.

03:19 - 00.531 We aren't trying to minimize any of the harm at him.

03:20 - 01.635 So let me let me throw out.

03:20 - 03.301 Would you

03:20 - 07.237 concede, though, then, that the next one, the next sexual assault

03:20 - 10.231 that happens on your campus, you'd have notice of?

03:20 - 12.643 I think the district would have notice if they knew

03:20 - 16.447 that there was a specific area in a, in the district

03:20 - 21.509 that is tends to be unsecure and kids tend to go there to, to do things.

03:20 - 24.512 I thought they said that there was an issue about that bathroom.

03:20 - 29.117 There's an allegation that there was a gun waved in the bathroom.

03:20 - 31.328 I don't know how that is.

03:20 - 34.465 Decisions that lead down the road.

03:20 - 36.133 You don't want us to go.

03:20 - 37.668 I and I understand that, Your Honor.

03:20 - 41.105 I it's just I don't think that that shows force, the ability that there is

03:20 - 44.132 there's sexual behavior happening in that bathroom,

03:20 - 46.643 either consensual or non consensual.

03:20 - 49.513 I think that would lead to a finding for the district.

03:20 - 52.940 I think an allegation that the students had a history

03:20 - 56.210 would lead to enforce the ability on behalf of the district.

03:20 - 59.423 This is this is a really, really tough case.

03:20 - 01.258 So, so thanks.

03:21 - 03.494 And thank you very, very much for lunch.

03:21 - 04.628 Coffee was on the phone.

03:21 - 07.264 Oh judge coffee. Do you want to say anything.

03:21 - 09.600 Do you have another question before we.

03:21 - 11.468 No, I'm good. Thank you. Okay.

03:21 - 14.495 Well thank you very much. And thank you.

03:21 - 15.695 Thank you all.