00:00 - Well good morning everybody.

00:03 - Welcome to Commonwealth Court

00:07 - an unboxing session of

00:09 - of our court here in beautiful Philadelphia.

00:13 - There are three ways to see our arguments.

00:17 - The first one is in person.

00:19 - And we welcome all of you who are here.

00:22 - The second is a live stream on our YouTube channel.

00:27 - The links can be found at the court website.

00:32 - PA courts.us.

00:34 - The link only works during the argument session.

00:40 - Live stream.

00:41 - That's what that means.

00:43 - In addition, the Pennsylvania Cable Network

00:46 - records and will televise the arguments.

00:50 - And if you watch those, you will have the benefit

00:53 - of hearing summaries before each argument.

00:57 - That will be by attorneys from our Office of Chief Legal Counsel.

01:02 - I wish to thank Sam Ickes, Colby Miller,

01:05 - Madison Poetica, and Danielle Boyle,

01:09 - who are introducing today's cases.

01:12 - I also want to thank PCN for their efforts over many, many years.

01:18 - We appreciate it

01:21 - today on bank arguments.

01:23 - Have 30 minutes per case, 15 minutes per side.

01:29 - If there are multiple attorneys,

01:31 - please figure out how you wish to share time

01:34 - and advise us before you begin.

01:38 - In addition, the petitioner or appellant

01:41 - can ask for rebuttal time and where we have cross appeals as well.

01:47 - We have a couple of those today.

01:49 - We will hear the first four argued cases this morning

01:54 - and the remainder this afternoon, beginning at 1 p.m..

01:59 - We've read your materials, we've read the record.

02:02 - We've read the briefs.

02:04 - We're ready.

02:04 - We understand that even 15 minutes, which is twice as long as our normal time,

02:10 - isn't enough to be able to fully explain

02:14 - everything you know about your case.

02:18 - But we are prepared.

02:20 - Please jump right in.

02:21 - Don't spend a lot of time on the preliminary matters.

02:26 - Hello and

02:26 - welcome to the Commonwealth Court of Pennsylvania's March on Long Session.

02:31 - My name is Colby Miller, and I'm joined by Madison Metzger and Danielle.

02:34 - Neither Buell Ponte, as we are

02:37 - staff attorneys in the Commonwealth Courts Office of Chief Legal Counsel.

02:41 - The term on bonk is French for on the bench,

02:44 - and refers to a special procedure where a panel of seven Commonwealth court

02:48 - judges hears argument on cases that the court believes

02:51 - implicate complex or important legal issues.

02:55 - Today, the court will hear six on bond cases.

02:58 - Madison, Danielle and I will present a brief summary of each one case

03:03 - file, followed by the broadcast of the or oral argument thereon.

03:08 - With that, let's jump into the first introduction.

03:12 - The first case before this court sitting on bonk

03:16 - is a review of a trial court order sustaining the City of Philadelphia.

03:20 - Preliminary objections concerning the Fraternal Order of Police as complaint

03:26 - for declaratory judgments concerning the legality of an ordinance,

03:31 - and for a permanent injunction of an executive order issued

03:34 - by the Mayor of Philadelphia that the FOP alleges.

03:38 - Implemented the City Council's ordinance.

03:41 - The ordinance and executive order in question

03:43 - limits the ability of city police officers to conduct

03:47 - traffic stops for certain violations of the Vehicle Code,

03:50 - which the ordinance classifies as secondary offenses.

03:55 - In its complaint before the trial court,

03:58 - FOP asserted that the ordinance is preempted by the Vehicle Code

04:01 - and the first class City Home Rule Charter.

04:04 - Because the ordinance created a new class of offenses,

04:08 - that law enforcement officers are prohibited from enforcing.

04:12 - As to the executive order.

04:14 - FOP complaint asserts that the order is contrary to the Vehicle Code

04:19 - because it prohibits police officers from taking actions to enforce a Vehicle Code,

04:24 - which is a statute of general applicability throughout the Commonwealth.

04:29 - Upon review, the court sustained the preliminary objections,

04:32 - finding that a declaratory judgment was unavailable as a matter of law

04:37 - because, based on the facts alleged in FOBs complaint,

04:41 - the ordinance was not being enforced

04:45 - even if had not granted the preliminary objections

04:47 - related to the ordinance because it was not being enforced.

04:51 - The trial court declared that it would still have sustained

04:53 - the preliminary objections, because how and when city police officers may conduct

04:58 - traffic stops for secondary offenses is a matter of purely local concern

05:03 - affecting the personnel and administration of local government.

05:07 - That does not affect the general welfare of inhabitants of the Commonwealth.

05:11 - Outside the city.

05:13 - As to the

05:14 - complaint for a permanent injunction against the executive order,

05:18 - the trial court sustained the city's preliminary objection

05:21 - because the executive order, like the ordinance, is a matter of purely

05:26 - local concern related to the mayor's supervision of the police department

05:30 - and the mayor's law enforcement discretion concerning how

05:34 - and when the city police officers can conduct traffic stops.

05:38 - The trial court noted that the executive order does not limit the police.

05:42 - City police officers from citing motorists for violation of secondary offenses,

05:47 - nor does it nullify or attempt to amend any provision of the Vehicle Code.

05:53 - In the arguments you're about to hear.

05:55 - The parties address whether the ordinance and the executive order improperly

06:00 - eliminates the lawful discretion of individual police officers

06:03 - to conduct traffic stops for secondary offenses,

06:07 - and whether the mayor's executive order is a proper discretionary act

06:11 - to supervise the city police departments law enforcement activities

06:16 - by creating a policy concerning how and when traffic stops may be conducted.

06:20 - With that, let's listen to the argument.

06:23 - Good morning, Your Honor.

06:24 - May it please the court?

06:26 - My name is John R Belsky.

06:28 - I represent the FOP Lodge five and the five.

06:32 - Guardian ad litem in this matter.

06:35 - Do you wish any rebuttal?

06:36 - Oh, thank you, Your Honor. Yes.

06:38 - I would like to reserve two minutes of rebuttal.

06:41 - You've got it. Thank you.

06:43 - Ultimately, this case is about

06:46 - governmental authority and the limits of governmental authority.

06:51 - As you all well know, the city of Philadelphia

06:54 - is, is governed ultimately by a Home Rule Act

06:59 - that provides a broad, level of,

07:03 - governmental powers to both run the city

07:07 - and pass legislation and regulations as it sees fit.

07:11 - That was a grant given by, obviously, the General Assembly.

07:15 - The grant is not limitless.

07:17 - There are restrictions to that, to that grant,

07:21 - including the fact that, that the

07:25 - that in section 53.

07:28 - I'm sorry, 53, section 13133

07:32 - that no city shall exercise powers contrary to

07:36 - or in limitation of powers granted by acts of the General Assembly,

07:40 - which are applicable in every part of the Commonwealth.

07:45 - In this case, the General Assembly,

07:52 - enacted a vehicle Code.

07:55 - In doing so, the whole purpose of the code was to keep uniform

08:00 - the traffic laws,

08:02 - in the state and the Commonwealth of Pennsylvania

08:05 - regarding the maintenance, operation, ownership of vehicles.

08:10 - The statute is clear that in one in section 103

08:15 - that it shall be so interpreted and construed

08:18 - as to effectuate its general purpose,

08:22 - to make uniform the law throughout the Commonwealth

08:25 - and all political subdivisions, and then later in section 6101,

08:31 - it states that the provisions of this title

08:34 - shall be applicable and uniform throughout this Commonwealth

08:38 - and in all political subdivisions of this Commonwealth,

08:41 - and no local authority shall enact

08:45 - or enforce any ordinance on any matter covered by the provisions of this title,

08:51 - unless expressly authorized

08:55 - in this case.

08:56 - The city in fact violated both the Home Rule Charter

09:01 - as well as the Vehicle Code when it enacted an ordinance

09:06 - in which it decided that there would be primary violations for certain traffic.

09:11 - Stop vehicle.

09:12 - Vehicle traffic stops, and then secondary traffic stops.

09:17 - And then that you that the,

09:20 - the officers in the city of Philadelphia could not stop someone

09:25 - and on just a secondary violation as enumerated in the ordinance.

09:30 - Let me ask you, under the Home Rule Charter,

09:33 - doesn't that doesn't the right exist that you can direct

09:37 - personnel on how you want administer the local government?

09:40 - And so therefore, there's a determination made

09:43 - about how to use the police force.

09:46 - We would I would agree that the

09:49 - the mayor and the police commissioner have the authority to direct the police.

09:54 - The police force.

09:55 - However, they don't have the authority to pass an ordinance

09:59 - which says you can or cannot do certain things.

10:03 - And then what also happened here was, enact and

10:07 - and an executive order that effectively enforces that ordinance.

10:12 - I mean, it'd be one thing if the mayor

10:16 - or the public safety director

10:19 - or the police commissioner or directed its officers,

10:23 - like for whatever reason today or this week, we're not going to like,

10:27 - you know, stop people for these kinds of things.

10:29 - We're not saying that that's that they don't have the authority.

10:32 - What they can't do is what they did here.

10:34 - They can't pass it by an ordinance which clearly is clearly violates

10:40 - a vehicular code and clearly violates the Home Rule charter.

10:44 - How does it violate the Home Rule rule charter if they have the ability

10:48 - to direct the personnel because they can't they can't enact an ordinance.

10:54 - That is not that.

10:55 - And when there is a statewide, legislation

10:58 - that is applicable and supposed to be uniform across the Commonwealth,

11:02 - where, I'm sorry, where in the vehicle code specifically does it says that

11:07 - this type of ordinance is prohibited in allowing

11:11 - or directing how to man

11:15 - the, you know, the traffic code and how they're going to enforce

11:17 - their personnel, use their personnel.

11:19 - I mean, I would rely on what I, cited before that no local authority shall enact

11:24 - or enforce any ordinance on a matter covered by the provisions of this title,

11:28 - title being, the vehicular Code, unless expressly authorized.

11:32 - So you're citing 6101, correct, Your Honor.

11:35 - Can you talk about how the executive order,

11:39 - the interplay of that with the, ordinance?

11:44 - Well, it

11:46 - it's a broad question.

11:47 - And I'll answer, but, well, the the order, the executive order.

11:52 - What happens here is, I assume you all know that after they pass

11:55 - the ordinance, shortly thereafter, the mayor, then mayor

12:00 - Kenny, passed his the executive order,

12:03 - he, promulgated the executive order, which has exactly the same language

12:07 - with respect to primary and secondary violations, as does the ordinance.

12:12 - In doing so is one of our arguments.

12:15 - Is that one,

12:19 - result that

12:21 - effectively enforces the ordinance?

12:24 - Because in this case, the there is at least an adjournment in our complaint,

12:29 - our amended complaint that the then police commissioner, Commissioner Outlaw,

12:33 - stated in the hearing that the that the ordinance was not being enforced.

12:39 - Isn't that the way around the city is trying to get around the prohibition?

12:43 - Yes. Exactly right.

12:45 - I mean, and and and just, you know, just think about this

12:48 - like the city passes an ordinance, right?

12:51 - And is it a it violates, a particular statute

12:57 - from the General Assembly with general applicability.

13:00 - But then the next day or a week later

13:03 - or two weeks later, they say, oh, we're not going to enforce that statute.

13:06 - It still is via it still violates

13:10 - the statute in the general, the statewide statute in question.

13:14 - You don't get around it by simply saying, well, we're not going to enforce that.

13:19 - It's the the ordinance here is still on the books.

13:23 - It is still the law is binding on the current mayor

13:27 - and the city and, and, the police officers in, in the, city

13:33 - and it's also affecting drivers

13:36 - who come into the city who aren't residents of the city.

13:41 - Well, you know, and and to get around it,

13:43 - as you say, Your Honor, they pass,

13:47 - you know, they passed the, the promulgate this executive order

13:51 - that effectively does what, what the ordinance itself does.

13:56 - How is that any different from,

13:59 - crimes that are listed in the criminal code that are no longer

14:02 - prosecuted by a matter of district attorney discretion, or by a

14:06 - matter of the fact that the terms of them have become archaic in our society.

14:10 - I, I agree that the, with respect to the District attorney, I agree

14:14 - that the District attorney has its clear and the law has the authority,

14:19 - to not prosecute, certain crimes.

14:23 - In fact, that is why is going on in the city of Philadelphia

14:27 - with our district attorney.

14:28 - But if the city of Philadelphia passed an ordinance that said, for instance,

14:33 - you can no longer,

14:38 - try or press charges against someone,

14:42 - if we're for retail theft, less than $500,

14:47 - that would violate, I mean, I that would violate

14:50 - his authority under the Constitution and under the statute.

14:54 - It sounds like you're saying that the discretion exists.

14:56 - You just can't codify it in an ordinance.

14:59 - You have a policy, but not an ordinance. Exactly.

15:02 - I mean, if they want if they want to pass such a statute, such an ordinance,

15:07 - right, that, you know, drive up to Harrisburg,

15:10 - talk to the legislators and give you the authority

15:13 - because the authority does not exist in the vehicle code.

15:17 - I mean, I understand the city's position is that this is, you know,

15:21 - a discretionary act, at least with respect to the executive order of the mayor.

15:24 - But you know that that is not the method

15:29 - by which you get to enact such an ordinance.

15:33 - And it's also not and you can't also then enforce it

15:37 - by having an executive order that effectively says,

15:40 - we're going to still enforce this, ordinance,

15:44 - even though we say it's not it's not we're not enforcing the ordinance itself.

15:49 - I mean, it's excuse me, isn't the mayor the chief executive officer?

15:53 - So the mayor has the obligation

15:56 - to determine how to administer the policies of the city.

16:00 - So wouldn't it be undermining the mayor's authority?

16:03 - I don't think so.

16:04 - Your honor, as I just said, the mayor has the authority to.

16:09 - You know, he wants to call up the police commissioner and say, you know,

16:13 - for whatever reason, I think that you shouldn't, enforce

16:17 - these particular, statutes, whether they're in the Vehicle Code

16:20 - or the Criminal Code.

16:21 - He can do that. We're not saying you can't.

16:23 - He can't, like, write a executive or executive order has

16:27 - some legal, is is is still somewhat binding law.

16:32 - He can't all of a sudden write that when it's in derogation

16:35 - of an existing statewide, statute on on

16:40 - how we maintain, operate and own vehicles in the Commonwealth of Pennsylvania.

16:45 - The city saying that he could do a behind closed doors,

16:49 - but as soon as he came out publicly and did it via executive order, then.

16:54 - No, he can't do that.

16:55 - I do believe that there's a difference between him,

16:58 - between between

17:01 - promulgating an executive order and signing it

17:05 - and doing that and just discussing the matter

17:09 - with the police commissioner and for whatever reason, for whatever,

17:14 - you know, period of time, presumably the executive order still effective.

17:18 - The city says this is not right for review because it hasn't been enforced.

17:23 - Does that matter if there's a violation

17:26 - of another life that's preempting, like a preemption issue?

17:29 - Is it just visible anyway, or does it matter that it hasn't been enforced yet?

17:35 - Well, first

17:36 - off, no, that I don't even know if you know that yet,

17:39 - because that's right in our mind that a lot of haze was made

17:43 - by the trial court and the city in their brief about the fact

17:46 - that we're saying that the ordinance is not being enforced.

17:50 - It's not what we say in our complaint.

17:52 - What we say in our complaint is that the then police commissioner

17:56 - stated in a hearing that it's not being enforced.

17:59 - We don't know.

18:00 - I mean, we don't know. I mean, like and how would you know?

18:02 - I was going to ask you how would you enforce this anyway?

18:06 - Because the secondary violations are,

18:11 - how would you know if someone's registered before you stop them?

18:15 - You're not allowed to stop them, right?

18:17 - If they're not registered within the last six months,

18:21 - how would you know that without stopping them first?

18:24 - I, I I can't speak to that.

18:26 - I mean, I'm just ask them how they were

18:29 - certainly under the, under the ordinance and then the executive order.

18:34 - You're not

18:35 - going to get citation for, secondary violation

18:39 - unless you have primary you have a primary violation.

18:43 - This isn't the city of Philadelphia claiming.

18:45 - I mean, let's keep it real, right?

18:48 - Isn't the city of Philadelphia claiming that this ordinance is working?

18:54 - I believe so, yes.

18:57 - So how can they say that it's not being enforced

19:00 - if they're claiming it's working?

19:03 - I'm not exactly sure.

19:04 - I mean, what the city's position is, are they actually saying that

19:08 - it's not being enforced if they're relying on our amended complaint?

19:12 - The amended complaint does not say it's not being enforced.

19:15 - What it says is that the police commissioner said it's not being enforced.

19:19 - We're supposed to ignore the ordinance and deal with the executive order, right?

19:23 - I mean, I mean, I mean, I actually mean.

19:27 - I think that's what the city we as part of our argument,

19:30 - I mean, we're saying that the ordinance should be declared invalid,

19:35 - because it whether it's being enforced or not

19:38 - being enforced is a violation of, it's preempted.

19:42 - I mean, it's just and and it should not be valid.

19:46 - Mister Bill's here.

19:47 - I'm gonna violate the president judge's request of us and ask a question

19:50 - after the light turned red, I apologize.

19:52 - That's right, that's right. Simple question.

19:56 - If the ordinance weren't in place, if the executive order were in place

20:01 - and it was just a statement of policy

20:04 - from the police commissioner to the force, that this is how I want you

20:10 - to enforce secondary stops and conduct secondary stops,

20:14 - and that's everything that's in both the ordinance and the executive order.

20:18 - Would you be here today complaining about that?

20:21 - I don't believe so, Your Honor.

20:22 - Okay.

20:22 - I mean, I mean, that's we have to recognize that there's

20:26 - some of you have to have some ability to be able to manage the police force.

20:31 - We're not denying that.

20:32 - We're just saying that you can't do it the way they did it,

20:34 - which is an ordinance, and then backing it up with an an executive.

20:38 - So and so many things that we see in this court.

20:41 - It's form over substance.

20:46 - You don't disagree that that

20:48 - the city has some way to get

20:51 - reach this managerial goal, right?

20:54 - You just quibble with the way they enacted it.

20:56 - I would I would take, umbrage at, you know, like to work.

21:00 - Quibble. Okay.

21:01 - I withdraw that because I think that I think that you're not supposed

21:05 - to pass an ordinance that is in derogation of a statewide statute.

21:10 - I mean, and it's clear in this case that,

21:13 - vehicle code absolutely prohibits it.

21:15 - So, I mean, I don't think that this is a minor.

21:18 - I realize that the secondary violations seem minor.

21:23 - Right. And

21:25 - but the the real issue here is

21:27 - they don't have the authority to do what they did.

21:31 - They didn't have the authority to pass.

21:32 - No, they don't have the authority to do it the way they did.

21:35 - Right.

21:36 - With an ordinance and then and then backing it up with an executive order.

21:40 - Thank you. Thank you very much.

21:49 - Good morning, Your Honor.

21:50 - I'm reading Jennifer McNaughton and speaking to the mic.

21:54 - Oh, is that better? Thank you.

21:57 - Can I ask you, how are the traffic laws now?

21:59 - Uniform throughout the Commonwealth, which is required under the Motor Vehicle Act.

22:04 - Well, so the executive order, which is the operative policy here

22:08 - that is being enforced, it and as well as the ordinance

22:13 - does not change substantive law in the city of Philadelphia,

22:17 - well under the motor vehicle Code, as a law enforcement officer,

22:21 - have the right to stop a car.

22:22 - Currently, right now, a vehicle, if a brake light is out of a front,

22:26 - light it out.

22:26 - If they don't

22:27 - have a license plate in the right place so they don't have an inspection sticker,

22:31 - they can stop a car.

22:32 - They have the discretion to stop a car, and that's important.

22:36 - Well, you're taking that discretion away.

22:37 - Isn't that changing the law?

22:39 - So it's now no longer uniform.

22:41 - The so the mayor as the chief executive who is in charge of law enforcement,

22:45 - has limited, not taken away, but limited the discretion

22:49 - of law enforcement officers under her supervision

22:52 - to under circumstances under which these violations will be enforced.

22:56 - So these are still violations of the law.

22:59 - If, say, somebody runs a red light and the officer finds, oh,

23:02 - that person also has an expired registration expired emission sticker,

23:05 - they can still issue the ticket for that violation.

23:08 - That's not an issue in this case.

23:10 - Now, if there's a, if there's a brake light out

23:14 - and the officer has a reasonable suspicion

23:17 - of a violation of the vehicle Code,

23:20 - they're prohibited from pulling that vehicle over

23:23 - and conducting a investigation for just that secondary violation.

23:29 - If that's the only violation that's been observed, that is that is correct.

23:31 - And so to follow up on judge McCullough's point,

23:35 - among the 67 counties of the Commonwealth

23:39 - that only exists in Philadelphia County, well, that we know of,

23:43 - that is a policy for our law enforcement officers in the city of.

23:47 - So it's not uniform throughout the Commonwealth.

23:49 - It is it is uniform in the sense that in the the Motor.

23:53 - Vehicle Code expressly gives to individual officers

23:56 - the discretion of whether or not to pull someone over for these violations.

24:00 - That is the same throughout the Commonwealth.

24:02 - It takes away their discretion in Philadelphia, does well in other counties.

24:07 - In other cities, it would be

24:09 - assuming there's no similar policy, or assuming there no police directive,

24:12 - that would be up to the discretion of the individual officer here.

24:16 - The mayor has said, I,

24:18 - as the official in charge of the executive branch in charge of the police,

24:22 - I am setting a policy that guides your discretion.

24:25 - So, and it's important to recognize that the code gives that discretion to law.

24:30 - You keep talking about discretion, but it's so clear in the Motor.

24:33 - Vehicle Act, it's intended to protect safety

24:37 - and your carving out an exception for a front light

24:41 - being out or in a car driving at night, a front light is out.

24:45 - Is that not a safety issue?

24:47 - We have a lot of pedestrians in Philadelphia always crossing the streets.

24:52 - Now you have a front light that's out.

24:54 - You have a rear brake light that's out.

24:56 - I mean, to me, clearly those are safety issues

24:59 - that are now not allowed to be enforced.

25:03 - A car is allowed to be driving on the road in contravention of the Motor.

25:06 - Vehicle Act, without proper lighting or brake lights.

25:10 - So the safety issues

25:11 - at issue here are are quite minor in comparison to other safety issues.

25:15 - I don't think it's minor

25:16 - that a pedestrian is not seen on a road because a brake light

25:20 - is out at night, but it's the same amount of discretion that an officer.

25:23 - The code does not require or compel an officer

25:26 - to pull someone over every single time they observe a broken brake light.

25:30 - So this is the same authority that's given under the motor

25:33 - vehicle code to the officers.

25:35 - It's just in this circumstance, we now have the chief policy maker

25:38 - for the police department who is saying,

25:40 - and this is expressed in the in the executive order,

25:42 - it says we want to focus our law enforcement efforts on on issues

25:46 - that are more serious.

25:47 - That's not why the the basis for this legislation,

25:52 - an executive order, correct me if I'm wrong, was equity.

25:56 - Yes. That's the that's the primary basis.

25:58 - But the executive order also includes a statement of policy that mentions.

26:01 - So racial disparities in policing is an important issue.

26:05 - But that was the number one. It's called that.

26:08 - I mean it's so the trade off essentially correct me if I'm wrong, is we're going

26:13 - to let these eight things slide because we want to address equity.

26:17 - And we believe that this is a way to do it.

26:20 - And isn't the city claiming that it's worked?

26:24 - Yes, it is, because we're not.

26:26 - We are trying to work on the issue of racial disparities in policing.

26:31 - Yes, that's true, but we're doing it within the realm of the discretion

26:35 - that is granted by the motor vehicle code, unless it's preempted.

26:39 - Well, and that's why it's not preempted, because the motor

26:42 - vehicle code expressly uses the term may in.

26:46 - And that's why I'm just to go back just to clarify, when you say it

26:51 - includes the word may, when you take that, it's giving the discretion.

26:55 - When you take that discretion away

26:59 - from the officer on the street to do that,

27:03 - you have you not changed the motor vehicle code?

27:07 - The an officer in, say, Bucks.

27:09 - County could see a broken taillight and decide not to pull that person over.

27:13 - It's the same result as a person, an office.

27:15 - They don't they don't have the discretion here.

27:19 - The they don't have the discretion because their boss,

27:21 - the mayor, has told them this is not what we're doing.

27:24 - How did their boss tell them? No.

27:27 - So through the executive order.

27:29 - And that's the operative policy here.

27:31 - I know we have both an executive order and an ordinance, and the plaintiff's

27:34 - own complaint admits that the the chief law enforcement officer

27:38 - or the police commissioner, who's a policymaker

27:39 - for the police department has gone on record as saying the

27:43 - the ordinance has never been enforced and will not be enforced.

27:46 - It is just the executive order that is the live issue here.

27:50 - So so why don't you get city council to,

27:54 - revoke the ordinance?

27:58 - It's I don't think that's a stupid question.

28:01 - Well, no, it's no, of course not, Your Honor.

28:04 - It's

28:07 - it's not necessary.

28:09 - The mayor had full authority under the charter as the head

28:12 - of the executive branch to issue this directive to, her subordinates.

28:17 - Mayor, mayor Parker now.

28:18 - But, no, the ordinance isn't doing the work right now.

28:21 - Right now, it is the executive order that's doing the work.

28:24 - What is your response specifically to opposing counsel statement

28:27 - that this executive order ordinance violates the Vehicle Code

28:32 - and that you have no ability, the mayor has no ability to enforce this?

28:37 - Again, my response is that this is a an exercise

28:41 - of the discretion that is expressly granted by the Vehicle Code.

28:44 - And I think, you know, I believe it was Judge.

28:46 - Rodrigue asked some questions that really get to the heart of that.

28:49 - This is the same as if, say, a police captain said

28:53 - within their district, we're not doing these secondary violations anymore.

28:57 - We're only going to focus on on primary violations.

29:00 - It's the same effect.

29:01 - It's the same message down the chain of command.

29:03 - The only difference here is that the mayor has decided to go on record

29:07 - and do it publicly,

29:08 - in the form of an executive order, and it's well known that executive orders

29:12 - can act as an instruction to subordinates that he's implementing the the

29:16 - the car stop ordinance through his executive order.

29:19 - He keep saying executive order.

29:21 - The ordinance is on the books.

29:22 - The executive order implements the car stop ordinance.

29:26 - I'm so confused by your argument that way.

29:28 - Respectfully, Your honor, the executive order does not implement the ordinance.

29:32 - It says implementing the car stop ordinance.

29:34 - It says it says implementing the the driving equality policy.

29:39 - Neither of those the executive order does not reference to the ordinance.

29:43 - And the mayor didn't need

29:45 - authorization from city council, but it happened at the same time.

29:48 - I mean, we can't look at this in a vacuum.

29:51 - It was clearly coordinated, right?

29:53 - I think this was an issue that was high priority

29:55 - for both city council and the mayor at the time.

29:58 - Recall this was during the George Floyd protests.

30:00 - This was during a time when there was just

30:02 - a lot of a lot of concern over racial equity in policing.

30:06 - And so this was a top priority for for both the executive and for city council,

30:10 - and that they both acted on it in the same manner.

30:13 - It does not necessarily mean that the ordinance was

30:16 - was the some sort of the groundwork for the executive order.

30:20 - In fact,

30:20 - if the ordinance never happened, the mayor would have full discretion

30:23 - to issue the executive order.

30:25 - Let me ask you, Chris, your lights still green.

30:27 - So, okay, the the executive order says she'll not initiate motor vehicle stops

30:33 - based on violations that do not create a significant risk of immediate danger.

30:37 - So if a police officer determines that,

30:40 - a front light missing at night,

30:44 - driving through the city creates a significant risk of imminent danger.

30:48 - Are you saying here today that he can stop because that's now a secondary primary,

30:52 - a secondary violation that would be not consistent with the ordinance?

30:57 - What you're saying is really not what the mayor's is, implementing.

31:00 - So can you tell me, would the officer still be allowed to stop the car?

31:05 - My understanding is that the ordinance says

31:07 - that these secondary violations alone are not sufficient grounds for a stop.

31:10 - Yeah, but the mayor executive order says significant risk of immediate danger.

31:15 - Right. A front headlights missing at night.

31:18 - I think someone could argue that's a significant risk

31:21 - of immediate danger with pedestrians all over the place.

31:25 - Can police officers

31:27 - stop the car based on the executive order? No.

31:30 - That interpretation.

31:31 - So again, I think I don't know that this is actually come up.

31:35 - It doesn't have to come up.

31:36 - I'm asking you be out for significant it.

31:39 - Well, I guess I'm not sure how the interplay between that that that

31:43 - extra out for the significant danger would apply or not.

31:46 - Remember, we are talking about just one headlight.

31:48 - So this is like a bolt headlights situation.

31:50 - Oh I bit, but the police officer has to make that call.

31:53 - They're they've got the boots on the ground.

31:55 - They have to make the call.

31:56 - Are they going to be justified that that's a significant

31:59 - risk of immediate danger at night driving under those circumstance?

32:03 - Since the are you saying because you're trying to say

32:06 - that the executive order is in it is it is in play.

32:09 - But if you look at that language, you're now you're going back

32:12 - to the ordinance and saying, oh, it says you can't stop.

32:16 - So that the executive order also, I believe, includes some qualifier

32:20 - for significant danger.

32:21 - But I think the more important thing is that in any time that we have an officer

32:26 - under those circumstances, there's so many decisions

32:28 - that officers have to make on the fly.

32:30 - And I think that might be one of those

32:32 - those decisions that is just going to be it's going to be the calculus on the fly.

32:35 - And in any circumstance that officers face anywhere, their commanders give them

32:42 - guidelines, policies, instructions, their commanders who are police officers

32:47 - who know what it's like to walk a B, drive a, B,

32:52 - as opposed to a mayor.

32:55 - Well, these

32:56 - policies were actually developed in cooperation with the police department.

32:59 - Unfortunately, that's that's not put in the complaint.

33:01 - It's not really part of the record, but it's it's the background for how these

33:06 - particular violations were arrived at that it was something that police could

33:11 - police could deal with that would be shocked

33:13 - if the chief was involved in politics.

33:17 - These we, the branches of government have to work together.

33:20 - And of course, this is the mayor,

33:21 - issuing instructions to people that are under the supervision of the mayor.

33:25 - So the manager should take account of,

33:28 - of what the, their subordinates, feedback is so misbegotten

33:32 - that might just distract you or guide you to a different area here.

33:38 - I'm struggling with this, and I don't necessarily remember if I senior briefs.

33:43 - I was trying to look for it, looking for it here in the eye on my iPad.

33:46 - But this

33:48 - this seems to

33:49 - boil down as to who has the discretion

33:53 - to make the decisions.

33:56 - Like he's saying,

33:57 - it's clearly the cop on the street.

34:00 - You're saying it's the city as embodied by either

34:04 - the mayor or the mayor and the police commissioner.

34:08 - Is there any law that tells us who that May is directed to, or is this a case?

34:14 - The first impression on this issue?

34:18 - I have to admit,

34:19 - Your Honor, I did not research that specific,

34:22 - word in the statute.

34:23 - I think I was going with the plain language.

34:26 - The fact that these violations do not have to be in force

34:29 - every single time they occur, which would be impossible.

34:33 - I guess the practical matter to stop every, every,

34:36 - you know, person who has something hanging from their rearview mirror, I think the.

34:41 - I think it's an interplay between that, that

34:43 - plain language, the word may the officer may stop a vehicle

34:47 - and the authority that is given over those officers by the city charter

34:52 - from the mayor, who has the authority to set policy of how the authors

34:57 - or the officers exercised that discretion so that.

35:01 - I think that's it.

35:02 - It's just that the code gives the discretion to law enforcement

35:07 - and the head of law enforcement in the city,

35:10 - the mayor has said this is how we're going to exercise that.

35:14 - What it was the mayor in conjunction with the commissioner, correct?

35:18 - Yes. Okay. Yes. Your own.

35:20 - And of course, the commissioner is in charge of

35:24 - operationalizing that policy and issuing the guidelines

35:26 - that and trainings and things that will affect

35:30 - carry it over to the individual officers

35:32 - side of the argument is that about of the officers,

35:35 - there's a group of them that goes, hey, you know what?

35:38 - We have limited time and limited resources ourselves on a daily basis.

35:41 - We're just not going to choose to stop anybody when there's a second violation.

35:46 - So when something happened to them,

35:49 - I don't think there's anything there to impose.

35:51 - Unless of course, the chief executive officer has said, hey,

35:54 - if you don't enforce that, then there'll be disciplinary measures.

35:57 - But I don't think that exists here. Exactly.

35:59 - Your honor, the again, that's the language of the code

36:02 - doesn't require officers to stop vehicles for these violations.

36:06 - It's a matter of police discipline.

36:08 - It's a matter of police policy. So.

36:14 - I think my time is running out

36:16 - and mean.

36:17 - We had a couple of other issues that I.

36:20 - Well,

36:20 - I was hoping to get into the standing issue

36:22 - because of course, that's a threshold issue here.

36:24 - And the plaintiffs here have only limited their argument to taxpayer standing.

36:29 - And of course, this is covered extensively in the briefs.

36:31 - But, first of all, there's

36:33 - there's no plausible impact on their their role as taxpayers.

36:37 - Their argument depends on this highly unrealistic scenario that,

36:41 - first of all, there would be a court order telling the city, no, you can't do this.

36:45 - Second of all, the city would thumb its nose at a court order.

36:48 - We're not in the habit of doing that.

36:49 - And then there would be these sanctions applied under the motor vehicle code.

36:54 - That is just that there's there's that risk of harm

36:57 - is so remote and it's so detached from their interest as taxpayers here.

37:02 - There's taxpayer standing is not shown.

37:04 - So even if the court doesn't

37:05 - want to reach these, these weighty and interesting issues,

37:08 - would the individual or the individual police officers who are not allowed to

37:14 - enforce the secondary provisions, would they individually have had standing?

37:18 - I don't think there's a right on behalf of individual officers

37:22 - to to perform their job in the way that they see fit.

37:25 - They are ultimately under the supervision of their their command staff

37:29 - and ultimately the mayor.

37:30 - So, that's not the argument that was made here,

37:33 - but I, I think that would be the end result of that argument if it were made.

37:39 - All right.

37:40 - Thank you.

37:40 - And thank you very much.

37:44 - I didn't have any questions.

37:46 - Counsel, question.

37:47 - What is your request?

37:50 - What is the purpose of the unions?

37:53 - Challenging this because it's actually seeking

37:56 - to put more work on the police officers that are already heavily burdened.

38:02 - Because they my clients

38:05 - believe that it wasn't,

38:09 - in privately enacted ordinance,

38:11 - and it's an in violation of the vehicle code.

38:14 - I mean, they, you know, nobody else came forward and questioned

38:20 - the method by which this ordinance was passed

38:23 - and then enforced through the executive code.

38:25 - Well, look at the flip side of it.

38:26 - Would you be binding the police officer?

38:28 - Is it a possible disciplinary measures if they did not enforce it

38:32 - and they saw a car go by with only one life?

38:35 - I don't think so.

38:36 - I mean, I've already we've already and I've already acknowledge,

38:39 - Your Honor, that there that there is discretion here.

38:42 - Okay.

38:42 - It's just the manner in which they came about

38:46 - dividing up these types of violation from primary violation.

38:50 - Second to violation and not and through an ordinance

38:53 - and then through an executive order, if they had never passed the ordinance

38:57 - and had only issued an executive order, would you be here?

39:01 - Maybe because it still violates the,

39:05 - well, the, vehicle code says ordinance.

39:09 - It doesn't say executive order.

39:10 - Right.

39:10 - And 6101 a I'm sorry I missed that.

39:14 - The vehicle code in 6101A,

39:18 - says that there can be no ordinance.

39:22 - It doesn't say executive order, does it?

39:25 - It says no local authority shall enact or enforce any ordinance.

39:31 - It the language is as you as you read it.

39:33 - Okay.

39:34 - But the executive order incorporates the ordinance by

39:38 - that was that was one of my.

39:39 - I appreciate, Your honor.

39:40 - Well, then I already said it.

39:42 - I don't have to say it. You're just saying agree.

39:44 - But I just want to be clear that if you turn to, the reproduce reported 40

39:49 - a, there are two places where it mentions this ordinance.

39:52 - The idea that it doesn't mention it at all is just incorporated by specific right.

39:56 - It lays out the primary and secondary and the language.

40:00 - And so I did have another question quickly if if we find

40:04 - they're standing in it's right.

40:05 - Do we have to remand for further development of the record

40:08 - on the preemption issue, or is it enough that the trial court

40:11 - gave us its thoughts on that, even though in dicta,

40:16 - I would think that would have to be remanded if,

40:19 - you agree with us that, you know, it's preempted,

40:23 - or if you agree that it's not moot, which is our other argument.

40:26 - It's not moved because the executive order effectively,

40:30 - you know, keeps the ordinance alive and

40:33 - and enforces the ordinance.

40:36 - Quick question.

40:36 - I know I'm in the red that.

40:39 - Oh, well,

40:42 - so based upon

40:45 - what you told President Judge Conjugal there that

40:48 - the motor vehicle code just talks about ordinances.

40:52 - If we were to agree with you

40:53 - that this is an overreach per the ordinance, and we say, yes,

40:57 - we strike the ordinance, but leave the executive order in place

41:02 - because the statute doesn't deal with executive orders.

41:07 - Are we on good ground?

41:12 - You or I'm.

41:14 - I would say that because it references the ordinance, it's problematic.

41:18 - Okay, so

41:18 - we strike all reference to the ordinance and just say it stands on its own policy.

41:22 - There's no such thing as the ordinance anymore.

41:24 - And we get out a little red pen that we're allowed to do and strike that out.

41:29 - So the ordinance no longer exists.

41:31 - It's just the executive order by judicial fiat, by opinion, by order,

41:36 - which we are privileged and required to do.

41:40 - Are we still here?

41:41 - But I think you might you still might be here because the the executive order

41:46 - is infringing in an area that is of a statute

41:50 - passed by the General Assembly, a statewide concern.

41:55 - But I mean,

41:55 - but I, I understand where you're what you're saying.

41:59 - I mean, I think it's, as I said before, a more problematic situation at that point.

42:04 - Okay.

42:05 - I mean, if I could I know,

42:06 - you know, I do want to point out that we did not challenge,

42:10 - taxpayer standing, which is the one place where we agreed with the court.

42:15 - We agree with the court's, ruling on it that, you know,

42:19 - found that we meet the five, bistro test.

42:23 - And therefore, I think that, you know, that part, you know,

42:26 - that should be affirmed.

42:28 - Just so, I put that out there,

42:31 - and, and it and quite frankly,

42:34 - one of the things that council said in her brief was that,

42:38 - that somehow the, the attorney general

42:41 - should be the one that, you know, would be a better party to,

42:45 - bring this forward and therefore, taxpayer standing doesn't hold.

42:49 - The attorney general isn't going to get involved in a case like this.

42:52 - Okay?

42:52 - I think everybody knows that.

42:54 - But my client, quite frankly, did.

42:56 - And the judge below at the trial court

42:59 - found that we were the best party to bring this, claim.

43:03 - So. Okay.

43:04 - Thank you very much. You've done well over your time.

43:07 - And thank you.

43:08 - Both very well argued and presented.

43:11 - In the next case, the court hears arguments concerning the mayor

43:15 - of the City of Philadelphia's issuance of an executive order

43:18 - renaming the holiday of Columbus Day to Indigenous Peoples Day appellants.

43:24 - The Conference of Presidents of Major Italian-American organizations,

43:28 - incorporated and associated individuals and organizations.

43:32 - Appeal a trial court's order sustaining the preliminaries.

43:36 - City's preliminary objections,

43:38 - because its claims are precluded under the doctrine of race due to Carta.

43:44 - And its order.

43:45 - The trial court held that appellants state claims were essentially the same

43:50 - and sought the same relief ever as were raised in a prior action in federal court.

43:56 - There, the Federal Court dismissed appellants claims

43:59 - under the Equal Protection Clause of the United States Constitution

44:03 - because appellants lacked standing, do the absence of a particularized injury

44:08 - because the government speech doctrine protected the mayor's action,

44:12 - and because appellants failed to allege that the remaining

44:15 - the renaming of the city holiday caused any discriminatory treatment,

44:20 - or was modified by discrimination motivated by discriminatory intent.

44:24 - When dismissing appellants federal claims, however, the Federal Court

44:28 - stated that litigation of the appellants state law claims

44:31 - would be more appropriate in state court.

44:35 - In addition to dismissing several appellants claims

44:37 - due to race due to court.

44:38 - The state court

44:40 - also held that appellants failed to sufficiently plead claims that the

44:44 - mayor and the personnel director violated the Home Rule Charter by preparing

44:50 - and submitting a civil service regulation, renaming the Columbus Day Holiday.

44:55 - The trial court rejected appellant's contention

44:57 - that the action was legislative in nature.

45:01 - Finally, the trial court rejected appellants contention

45:04 - that two General Assembly acts of statewide applicability

45:07 - preempted the mayor and the city's authority to rename the city holiday.

45:13 - One act of the General Assembly directs the governor to issue

45:17 - an annual proclamation designating October 12th as Columbus Day,

45:22 - and the other requires banking institutions

45:24 - to designate Columbus Day, among other days, as a public holiday.

45:29 - On appeal, appellants

45:30 - argue that the city and the mayor violated the city's Home Rule charter

45:34 - because the executive order infringed on the City.

45:37 - Council's legislative authority over Columbus Day and Columbus Day

45:42 - festivities, festivities which the City Council exercises yearly.

45:47 - When it names the week encompassing Columbus Day as Italian-American Heritage.

45:52 - Week, appellants contend that the mayor does not have

45:55 - the unilateral executive power to bypass the city council's authority

46:00 - to annually recognize Columbus Day as a city holiday and support.

46:06 - Appellants cite the portion of the charter that reserves to the City Council

46:11 - all powers of a municipal city that have not been

46:14 - specifically granted to the mayor.

46:18 - Appellants also argue that its discrimination claims

46:21 - are not precluded by race adjudicator, because a recent amendment

46:25 - to Pennsylvania's Equal Protection Clause explicitly provides

46:29 - greater protections in the Federal Clause

46:31 - when it comes to discrimination based on race and ethnicity,

46:35 - and elevating one ethnicity indigenous peoples over another.

46:39 - Italians.

46:40 - When issuing the executive order, appellants assert

46:44 - that the mayor violates Pennsylvania's Equal Protection Clause.

46:48 - Whether the Equal Protection Clause in the Pennsylvania Constitution

46:51 - provides greater protection than its federal counterpart is a question

46:55 - of first impression.

46:57 - In response, the

46:58 - mayor and the city contend that there is no legislative history conclude

47:02 - that the goal of the amendment to Pennsylvania's Equal Protection Clause

47:05 - was to make a purely systematic injury related to

47:10 - ceremonial actions of the government into civil rights violations

47:15 - as to any violation of the Home Rule Charter.

47:18 - The city argues that nothing in the charter defines

47:21 - which branch of city government gets to establish a city holiday.

47:25 - In addition, it contends that no state or federal law mandates

47:29 - that the city recognize Columbus Day, which is a political question.

47:34 - The city asserts that appellant's action is improper

47:36 - because it is an effort to force the city to speak in a manner consistent

47:41 - with their preferences, which they have no right to do.

47:45 - Now let's listen to the argument.

47:48 - Good morning,

47:49 - members of the unbound Commonwealth Court.

47:52 - My name is George McKerrow and I represent the petitioners here.

47:56 - And the appellants.

47:58 - The appellants, by the way, as the president judge just mentioned,

48:02 - not only includes the Conference of Presidents of Major

48:06 - Italian-American organizations throughout the United States,

48:10 - but also includes Councilman Mark squealer.

48:14 - The 1492 society, as well as Jody.

48:18 - Della Barba and the Grand Lodge of Pennsylvania.

48:23 - So, excuse me, counsel, I don't mean to interrupt, but

48:25 - did you wish to reserve any rebuttal time?

48:28 - Thank you so much.

48:29 - Okay, great.

48:30 - Thank you.

48:31 - Sure. You got.

48:32 - So here's the case.

48:34 - Can the mayor unilaterally, the mayor of Philadelphia, unilaterally

48:39 - replace the Columbus Day holiday

48:42 - with Indigenous Peoples Day holiday?

48:47 - This case is not about whether the city can

48:52 - enact or

48:53 - recognize an indigenous peoples holiday.

48:57 - Have at it. No problem.

48:59 - At least as far as Italians are concerned.

49:03 - What we take umbrage to and what we believe

49:05 - is illegal, and what the mayor did is he

49:09 - he, the mayor, purported to replace

49:12 - Columbus Day with Indigenous Peoples Day, which until it's face,

49:18 - is an ethnic act of government.

49:21 - Why do I say that?

49:23 - The complaint in this matter

49:26 - has basically three sections to it.

49:29 - Counts one through 15

49:32 - relate to the violation of the Pennsylvania Constitution's.

49:37 - Equal Protection Act, which is broader

49:40 - than the federal Equal Protection Act.

49:43 - What is Christopher Columbus known for?

49:45 - Being Italian, or is he known for his acts of discovering America?

49:51 - And what are we really?

49:52 - What is the state or the country really celebrating?

49:56 - I mean, does it go because he's Italian

50:00 - or because of his accomplishments or both?

50:03 - His accomplishments certainly are celebrated.

50:06 - But the history of the Columbus Day holiday,

50:09 - both at the federal level and the state level,

50:13 - follow the New Orleans lynching of 11 innocent Italians

50:19 - in mob fashion and in a totally discriminatory fashion.

50:23 - And the president of the United States was so outraged

50:27 - at the actions of New Orleans that in order

50:30 - to reinforce and redeem

50:34 - the significance of the Italian American presence in this country,

50:39 - declared that Columbus Day, the 12th day of October,

50:44 - will henceforth be a national holiday known as Columbus Day.

50:49 - The Commonwealth

50:50 - of Pennsylvania similarly legislated.

50:54 - There's two different statutes that recognize Italian heritage

51:00 - as well as the discovery of America.

51:04 - So, you know, I think that that's a question

51:09 - that, is very insightful because I'm not sure that

51:14 - a lot of people really take the time to distinguish the two.

51:18 - But there are issues.

51:19 - Italian Christopher Columbus Day.

51:23 - Well, you know, the state statute

51:26 - speaks in terms of Italian American Heritage Week.

51:31 - And the governor is to grant a proclamation for Italian American.

51:35 - Heritage Week, as well as Columbus Day.

51:39 - And I think Columbus,

51:43 - just by way of, context, I think if people hear Columbus,

51:48 - they think discover America, the voyage, the some people think other things.

51:54 - I'm sorry to interrupt you, but you were getting to the argument that

51:59 - you said that the Pennsylvania equal protection

52:03 - is broader than the federal, which goes to the of to court.

52:06 - And I'd like you to play that out.

52:09 - How? It's broader. How is it broader?

52:11 - It's it's broader in a very significant way.

52:13 - Your Honor, and thank you for asking that.

52:16 - If, you take a look at the language

52:20 - of the federal Equal Protection Clause,

52:23 - it essentially says that the Congress

52:26 - shall not deny any person the equal protection of the law,

52:31 - any person the equal protection of the law.

52:35 - Following a series of cases

52:39 - coming up to 2015,

52:41 - which indicated that the Pennsylvania Constitution essentially mirrors

52:47 - the federal constitution,

52:50 - the Pennsylvania Constitution in 2021 was amended,

52:54 - and article 29

52:57 - they added the language because of race

53:01 - or ethnicity of the individual.

53:04 - That's not in the federal.

53:06 - You're saying that that broadened the, amendment, broadened the equal protection,

53:10 - and it's a recent there may not be a case on point

53:14 - that says what you want it to say, and maybe this is the case for you.

53:19 - That exactly correct, judge.

53:21 - And that's why in our briefs we do take pains to point out

53:25 - the legislative history of the amendment of the Pennsylvania Constitution.

53:29 - What were the legislatures legislators thinking?

53:33 - What was their purpose in amending the Pennsylvania Constitution?

53:36 - And I think if you take a look at that history, you'll see that very clearly.

53:41 - They wanted to extend they wanted

53:44 - to broaden the protections of the federal standard.

53:48 - Your argument is that the trial court committed an error of law by saying that

53:51 - the Commonwealth's equal protection clause is the same

53:55 - as the federal, and that's something we can review de novo.

53:58 - Absolutely.

53:59 - And if, if, if your honors read the trial court opinion here.

54:05 - Most of it is devoted to race due to Carta.

54:09 - And the court's

54:10 - language, unfortunately glosses over this

54:14 - very significant amendment to the Pennsylvania Constitution at all.

54:18 - It really doesn't deal with it at all.

54:20 - And it and what he says, Judge Wolf, is that is the trial court.

54:24 - Oh, this is essentially the same claim as was presented

54:28 - in the federal analysis, essentially is not the standard.

54:33 - I should be the same. I agree with that.

54:35 - And but I do want you to jump on to another issue about standing. Yes.

54:39 - And the Federal Court found that the appellants had no standing.

54:45 - That's a that's a great question, judge.

54:48 - Here's the problem with this trial court.

54:51 - He never ruled on standing.

54:53 - He didn't analyze standing.

54:54 - If you look at his trial court opinion, the only thing he did is he noted

54:59 - he mentioned that the federal court found

55:01 - no standing, but he himself did not rule on standing.

55:05 - He did no standing. Analysis.

55:07 - That's number one.

55:08 - So that issue is is not

55:12 - a basis

55:13 - upon which this trial court granted preliminary objections.

55:16 - So moreover, excuse me, judge, if I may just have to follow up on that.

55:20 - Moreover, even if this trial judge did address standing,

55:25 - there's no question but that state court

55:28 - standing is broader than article three.

55:31 - Federal standing.

55:33 - The federal court standing was based on

55:36 - article three of the United States Constitution.

55:39 - The standing that we assert in this case is based upon Pennsylvania constitutional

55:44 - standing and Pennsylvania common law, and particularly this Commonwealth court

55:50 - rulings in other Columbus cases

55:54 - look towards federal law and determining standing.

55:57 - I mean, this view relies on it quite frequently.

55:59 - You do, but you're not you're not constrained by federal law.

56:04 - You can't go one step further.

56:06 - And in Pennsylvania, judge Jack, I'm sorry, I'm just trying to address this.

56:10 - I'm waiting to jump in when you. I know you've got in.

56:13 - In a standing analysis in Pennsylvania,

56:16 - we have an agreement standard

56:19 - which is a little bit broader than article three standing.

56:22 - So yes, most cases do kind of mirror

56:26 - the federal standing analysis, but this is not one of them.

56:30 - This is an agreement case.

56:33 - And we in the Commonwealth of Pennsylvania

56:35 - give standing for agreement.

56:38 - I would also say judge.

56:39 - Well, Jack, just one last point on Judge Covey's question.

56:42 - I would also say

56:44 - we have taxpayer standing as well.

56:47 - And the Federal Court never addressed that.

56:49 - And we meet the five elements of taxpayer standing under the current law

56:53 - in the Commonwealth of Pennsylvania.

56:54 - Judge Jack, I am so sorry to have.

56:56 - I appreciate that, and I appreciate that argument.

56:58 - I was very enthralled by it, shall we say.

57:01 - But this goes directly to what you were discussing with, Judge Covina.

57:05 - And in answering her questions based upon everything you said.

57:08 - And I've looked at the trial court opinion, and.

57:12 - I think I agree with where you're going.

57:15 - I don't know that I'm there yet, but I see the light.

57:19 - My question.

57:20 - Do we need to send this back for further analysis on standing

57:25 - at a minimum?

57:26 - Yes, but I think the record is was there enough in the room

57:31 - fulsome enough so that you could you can rule particularly based

57:35 - on this unbound court's opinion recently

57:39 - in the Marconi Plaza decision,

57:42 - where standing was directly put at issue

57:45 - that we have standing and and one of the parties, two of the parties

57:50 - here are the exact same parties that were in the Columbus statue case

57:54 - and Councilman Scala.

57:56 - I'm. I'm sorry.

57:57 - Councilman Scala is, not just a taxpayer, but also in this case,

58:01 - in its official capacity. Is that right? Yes, he is.

58:03 - And that's because and I haven't addressed it yet, and I hope I've answered.

58:08 - Judge, will I have another question? Finish with.

58:10 - But to to, deal with Councilman Scala.

58:13 - Councilman school as a plaintiff here because he is an Italian-American city

58:18 - councilman who year after year exercises

58:22 - legislative authority to proclaim

58:26 - Columbus Day, October 12th, as Columbus Day holiday

58:29 - in the city of Philadelphia and to authorize the parade.

58:34 - The mayor's

58:35 - executive order infringes upon his ability,

58:39 - which he has exercised for many, many years, repeatedly

58:44 - to make those resolutions on behalf of City Council.

58:48 - And of course, that's a violation of the city charter,

58:51 - because the city charter limits

58:55 - the mayor and constrains the mayor

58:57 - not to infringe upon the legislative power of city council.

59:02 - That's one of two violations of the city charter.

59:05 - Still have the parade and do everything like he's not prohibited from that.

59:09 - Well, the here's the problem.

59:11 - As a practical matter, it's very, very difficult.

59:13 - First of all, when they take away the Columbus Day parade,

59:16 - they take away the permit.

59:17 - We couldn't get a Columbus Day parade permit from the city of Philadelphia.

59:21 - They take away the police protection.

59:23 - How do you know that? They take away the permit. Have you tried?

59:25 - We tried at that very year, 2021.

59:28 - We had to apply for the parade under a different name.

59:31 - What was the name?

59:32 - Italian American heritage parade.

59:34 - We couldn't say Columbus Day parade.

59:37 - So I'm getting this.

59:38 - I just want some confirmation.

59:40 - Your issue is with the executive order

59:43 - that took Columbus Day and struck that from the records, correct.

59:46 - And and replaced it with Indigenous Peoples Day.

59:50 - So, as we know, we have 365 days, some years, 366 days.

59:55 - But there's many more causes and issues.

59:59 - 107 Would you be satisfied is if I said

01:00 - 05.501 in the last case, we took our pen out and struck something out?

01:00 - 07.247 Could we

01:00 - 10.673 reinstate Columbus Day as well here by order of this court?

01:00 - 14.277 More more to the point,

01:00 - 17.880 if if the mayor

01:00 - 22.251 or the city just had a joint day, Columbus Day

01:00 - 25.989 and and Indigenous Peoples Day, that's what you're looking for.

01:00 - 28.167 Well, I guess they could probably do that.

01:00 - 34.373 But in all due respect, wouldn't the better way to be have a Columbus Day

01:00 - 39.044 on October 12th and pick some other day of the 366?

01:00 - 41.046 So you'd say, here's Indigenous Peoples Day.

01:00 - 45.651 Do you take issue that with the 12th no longer being Columbus Day,

01:00 - 49.746 and also with it now being indigenous people, they can't coexist in York?

01:00 - 53.258 I don't think so because of the state statutes that exist here,

01:00 - 57.887 which make it crystal clear and occupy the field from a preemption point of view.

01:00 - 00.899 That October 12th is Columbus Day.

01:01 - 04.060 The governor must proclaim it to be Columbus Day.

01:01 - 08.907 The governor must also advise all the banks and schools.

01:01 - 09.876 But arguably Mr.

01:01 - 14.337 Practical, let me let me give you this this, hypothetical.

01:01 - 17.316 If October 12th happened to be Jason Kelsey's day,

01:01 - 20.910 are you saying that we can't declare that to be Jason Kelsey day two.

01:01 - 23.613 Because Columbus owns October 12th?

01:01 - 25.659 That's a

01:01 - 30.019 really tough I know, I know, put it on the spot.

01:01 - 31.964 It was hard for him to properly.

01:01 - 35.868 The issue here, especially with Jason Kelsey, the issue here

01:01 - 39.805 is the taking away of something that the governor has mandated. Yes.

01:01 - 44.243 So could you address their argument that City council has the exclusive power

01:01 - 48.213 to declare official city holidays, which is one of their arguments

01:01 - 51.240 that they can declare as an official city holiday.

01:01 - 55.311 They have to do it through a procedure which they didn't follow here.

01:01 - 58.257 And that's the other home rule charter violation.

01:01 - 02.485 The Home Charter says if you want to declare or cancel a holiday,

01:02 - 06.389 you first have to go to the personnel director of the city of Philadelphia.

01:02 - 10.359 Then it's got to go to the Administrative board and the Civil Service Commission.

01:02 - 12.271 Guess what, folks?

01:02 - 14.506 They never did that here.

01:02 - 18.668 This executive order was inaugurated,

01:02 - 22.338 promulgated in January of 2021.

01:02 - 26.685 They never went to the personnel director of the Civil.

01:02 - 30.379 Service Commission until December of 2021.

01:02 - 35.060 We had already filed suit in April of 2021, and we had already been

01:02 - 38.654 denied our Columbus Day permit in October of 2021.

01:02 - 40.499 Of course, you're saying the personnel director

01:02 - 43.760 can't exercise the legislative act under the Home Charter?

01:02 - 47.830 No, I'm saying even if the mayor wanted to say he had

01:02 - 51.343 this is purely an executive function,

01:02 - 53.812 and it doesn't infringe on the legislature, which it does.

01:02 - 56.839 But let's say the mayor wants to argue it doesn't.

01:02 - 58.151 I don't need it.

01:02 - 00.586 I've got the pure executive authority.

01:03 - 05.047 He still didn't follow the executive procedures that he's bound by

01:03 - 09.595 in this home rule charter, which says, before you can do this, Mr.

01:03 - 11.730 Mayor, you got to go to the personnel director,

01:03 - 13.999 you got to get the civil service commissioner, you got to get this.

01:03 - 16.902 You got to get that. And the public ought to get some notice.

01:03 - 19.929 Mayor Kenney dispensed with all that and said, it's done.

01:03 - 22.365 Thank you. Thank you. Thank you. Thanks.

01:03 - 26.545 And we will see you back again.

01:03 - 29.572 Yes. Yes, sir.

01:03 - 35.487 Morning again.

01:03 - 36.688 Welcome back. Welcome back.

01:03 - 40.216 I, I think I'm

01:03 - 43.249 this is going to be a little scatter shot because I got a lot to respond to.

01:03 - 45.164 I think I'm going to jump right in with this discussion

01:03 - 47.833 about what the charter says about the personnel director.

01:03 - 53.071 That is the regarding the, city holidays for for civil service,

01:03 - 56.098 for employees, folks, what it's called when people get the day off

01:03 - 59.444 that claim was withdrawn here because the mayor did go

01:03 - 02.214 through the personnel director and that was that procedure was followed.

01:04 - 04.416 So that is not a live claim before this court.

01:04 - 07.543 All we're dealing with here really is, is the equal protection claim.

01:04 - 10.956 And these additional state law claims that try to claim that

01:04 - 14.383 there's some sort of national or statewide preemption regarding Columbus Day,

01:04 - 17.587 which on their face they don't say that. And

01:04 - 20.933 so I'm, I think I'm going to start with the equal protection,

01:04 - 23.869 because I think that's where this is an interesting novel issue.

01:04 - 28.064 And of course, we also have the standing issue, but on equal protection,

01:04 - 31.643 I think what's missing from the discussion so far is the fact that

01:04 - 35.538 there was no equal treatment, concrete, unequal treatment of anyone here.

01:04 - 40.652 And if this court were to recognize a claim under the State Equal Protection

01:04 - 44.890 clause based on mere disagreement with government messaging,

01:04 - 47.893 it would be the first court in the nation to do so.

01:04 - 51.697 And that includes the federal courts and the one state case I was able to find.

01:04 - 53.198 The Albemarle case in Virginia

01:04 - 57.393 also rejected this kind of claim for for mere systematic injury,

01:04 - 01.139 disparate treatment has always been

01:05 - 04.934 a requirement of the Pennsylvania Equal Protection Clauses that existed.

01:05 - 07.646 Section 29 did not change that.

01:05 - 10.806 There's nothing in the language of section 29 that says,

01:05 - 13.609 we are recognizing a claim for being offended.

01:05 - 15.588 There's nothing in the

01:05 - 19.358 history of section 29 that says we will now recognize a claim

01:05 - 22.385 for being offended on the basis of your race or ethnicity.

01:05 - 27.023 So we don't think there's so much saying offended as we're Italian-Americans,

01:05 - 32.061 and he's the one that came forward in, you know, finding America.

01:05 - 35.941 And because of what happened in the history, it's

01:05 - 38.310 been recognized throughout time.

01:05 - 41.246 And so it's based more on

01:05 - 44.273 the heritage of Italians than anything.

01:05 - 48.954 Well, but the claim here is, is is based on disagreement with the city's

01:05 - 53.416 messaging on that, on what Christopher Columbus stands for.

01:05 - 57.853 So it's not a matter of essentially whatever

01:05 - 01.324 people may disagree about what Columbus means to them.

01:06 - 03.702 The city has taken a side here.

01:06 - 05.637 I don't think they're saying that the just the city.

01:06 - 08.664 I think they're saying that the United States of America recognized it

01:06 - 13.235 long ago, and that the Commonwealth has recognized that as such.

01:06 - 15.304 And now the city has come around

01:06 - 17.216 from the far

01:06 - 20.509 side and saying, hey, we look at this differently,

01:06 - 23.655 and they're saying, no, that that's too far

01:06 - 27.559 and that there's no authority when it's been recognized by the U.S.

01:06 - 29.394 and the state government.

01:06 - 33.422 So the state government and the US government don't don't tell the city

01:06 - 37.669 what holidays it can ceremony until we recognize,

01:06 - 40.539 the statute that was cited regarding the the,

01:06 - 42.307 you know, state laws regarding Columbus Day.

01:06 - 45.334 I mean, the one of them tells the mayor to issue or I'm sorry, the governor

01:06 - 46.645 to issue a proclamation.

01:06 - 48.213 It doesn't say City of Philadelphia.

01:06 - 49.915 You must have a Columbus Day

01:06 - 51.984 holiday on the books and give your employees the day off.

01:06 - 53.885 And you must call it Columbus Day.

01:06 - 56.455 But ultimately, there's a great debate

01:06 - 00.359 going on in America and looking at history and looking at where

01:07 - 04.553 the historical Columbus and his acts and what he,

01:07 - 09.167 the essentially human rights violations that he committed, in the New World.

01:07 - 12.371 And on the other hand, we've got the the older view, the I guess

01:07 - 15.398 the view we all grew up with was Columbus discovering America.

01:07 - 17.776 And these are political questions.

01:07 - 22.547 Well, that that the I'm really getting confused by how you just go walking down

01:07 - 26.218 this avenue when you skirt by the state

01:07 - 29.221 statute that says it, it's a state statue.

01:07 - 34.092 But the governor shall issue annually the proclamation designating

01:07 - 35.627 and setting apart the day

01:07 - 39.097 calling upon the people of the Commonwealth, which includes Philadelphia.

01:07 - 40.665 The last time I checked,

01:07 - 44.302 and the public schools, other educational institutions and historic

01:07 - 49.174 organizations to observe the discovery of the new world with appropriate exercise

01:07 - 53.302 to the end, that the discovery of America shall be commemorated each year.

01:07 - 56.815 So what's your I think what you're asking us to do

01:07 - 01.010 is ignore that language and we don't have the choice

01:08 - 06.024 to ignore state statute, which already says it is tied in to.

01:08 - 07.325 So, you know, the celebrating

01:08 - 09.928 the historical organizations discovery America.

01:08 - 13.565 It's up to the General Assembly, not us, to take that law

01:08 - 16.601 off the books, if that's if you don't like it.

01:08 - 22.131 But if there's a preemption issue here, you're you're trying to the city is.

01:08 - 25.977 In its position is I understand

01:08 - 30.339 it wants to take away what the governor has enacted.

01:08 - 33.542 But I believe that's the argument in here.

01:08 - 36.955 And and you're trying to say you can do that

01:08 - 41.450 because you don't agree with the statute, but then go talk to the General Assembly.

01:08 - 44.096 I don't think there's a matter of agreeing or disagreeing with the statute,

01:08 - 47.123 because the statute doesn't tell the city what to do.

01:08 - 48.800 It tells the governor what to do.

01:08 - 51.670 And quite honestly, I'm not even sure the governor still does this.

01:08 - 53.605 I searched in vain for any evidence.

01:08 - 57.266 Well, why can't they get a parade permit

01:08 - 00.378 to celebrate Columbus Day,

01:09 - 03.405 which is a an official Commonwealth holiday?

01:09 - 06.709 Why can't they get a parade permit on that day?

01:09 - 10.489 For the for the city that they've admitted in court.

01:09 - 11.857 They've gotten the parade permit.

01:09 - 14.226 There was no denial of a permit here.

01:09 - 16.795 And this, he said, are not for Columbus Day.

01:09 - 19.998 It had to be called and Italian Heritage Day, which is

01:09 - 23.259 might be a big tie in, but it's two different titles.

01:09 - 26.471 So I know this is preliminary objections and we have to take

01:09 - 29.532 that allegation at face value.

01:09 - 32.911 I would suggest if that if that actually occurred

01:09 - 35.938 and the city was forcing them to change the name of their holiday, they

01:09 - 38.383 they ought to be filing a First Amendment claim.

01:09 - 40.485 But here they have filed an equal protection claim.

01:09 - 43.221 They have filed these these claims based on alleged preemption

01:09 - 45.824 by these state laws that have nothing to do with city

01:09 - 49.618 holidays, equal protection based on ethnicity, right? Yes.

01:09 - 52.655 And that's in the Commonwealth constitution.

01:09 - 54.099 It is, it is.

01:09 - 57.035 But and it's all we did the trial judge deal with that?

01:09 - 58.537 No, the trial judge should not deal with that.

01:09 - 00.772 So it's it's before this court.

01:10 - 03.799 But isn't that problematic for the city of Philadelphia

01:10 - 08.513 because the trial judge did not deal with the differentiation, the amendment

01:10 - 12.808 in 2021 of the equal protection clause of the Commonwealth constitution.

01:10 - 16.254 Well, I think Judge Abel, if you had asked the question earlier,

01:10 - 20.992 how does section 29 change equal protection law?

01:10 - 23.962 And I think the you didn't get an answer.

01:10 - 25.697 The answer is it doesn't,

01:10 - 27.866 because there's nothing in the text of section 29

01:10 - 30.859 that says we're we're doing away with the unequal treatment

01:10 - 33.872 requirement under existing equal protection law.

01:10 - 37.099 And we're now letting people come to court simply because they don't like

01:10 - 40.636 the messaging that's coming from why I support

01:10 - 44.707 is, is, there's just like very narrow question.

01:10 - 46.085 Counsel

01:10 - 50.479 said that the Pennsylvania Constitution is broader, under equal protection.

01:10 - 53.882 Is it not in this way, it's co-equal.

01:10 - 57.086 It's co-equal, identical to federal law where

01:10 - 00.289 unequal treatment, not mere personal disagreement

01:11 - 04.126 with what the government says it has to be concrete, unequal treatment.

01:11 - 06.605 It has always been the law in Pennsylvania.

01:11 - 10.141 Nothing in section 29 changes that the mere cementing the words

01:11 - 13.302 race and ethnicity and the legislative history goes in detail about this.

01:11 - 17.749 It was to protect against retrenchment, but the intent of that was not to grant a

01:11 - 22.821 right against somebody's, a right to sue where somebody is again suffering

01:11 - 27.792 a stigma injury with with no concrete unequal treatment by the government.

01:11 - 33.856 Given given the historical context that a plaintiff's counsel explained to us

01:11 - 39.261 why Indigenous People Day may be a wonderful idea,

01:11 - 44.109 why does it have to be substituted for Columbus Day,

01:11 - 47.736 which has historical roots in the Italian American,

01:11 - 52.074 ethnicity, which is how I understand their position.

01:11 - 55.411 Why do you have to substitute one for the other?

01:11 - 58.223 That's a political decision that's left to the mayor.

01:11 - 02.627 But but in so doing, do you agree you've you've taken one ethnicity

01:12 - 05.730 and moved it aside for another one.

01:12 - 08.991 It based on the historical context,

01:12 - 12.137 you know, I'm not talking about the other.

01:12 - 16.398 Well, I mean, I think the Third Circuit opinion put this quite eloquently.

01:12 - 20.645 If it's an equal protection violation to give a holiday to one ethnicity

01:12 - 21.746 and not another,

01:12 - 24.973 then Columbus Day itself would have been an equal protection violation.

01:12 - 27.819 And the decision of what to call the holiday

01:12 - 30.846 and whether to move it, change it, what have you.

01:12 - 35.260 That's a political choice that that belongs to the government.

01:12 - 36.895 That's government speech

01:12 - 40.456 that the government has to choose among different messages that it wants to give.

01:12 - 43.635 And this is the message to that that former mayor Kennedy decided to give

01:12 - 46.171 that that's a longer recognizing Columbus Day.

01:12 - 48.073 It is Indigenous Peoples Day.

01:12 - 49.941 Are you through, judge? Yes.

01:12 - 50.376 Thank you.

01:12 - 53.945 So you're talking about the authority of the mayor to do this,

01:12 - 57.415 and there was discussion about whether or not this is, state legislative

01:12 - 00.642 decision, but, isn't it really

01:13 - 04.589 even if not a state legislative decision, a local legislative decision?

01:13 - 09.351 And where are you getting the authority for the mayor to make this, decision?

01:13 - 12.664 So interestingly, the charter is silent as to who gets

01:13 - 15.691 to declare a public holiday for ceremonial purposes.

01:13 - 19.337 So which means that there's no this issue that that it was

01:13 - 23.274 an exclusive province of the legislature that appears nowhere in the city charter.

01:13 - 26.301 In fact, tomorrow city council could get together,

01:13 - 28.913 pass another resolution or council member school.

01:13 - 30.448 It could pass another,

01:13 - 34.042 a declaration about about Columbus Day, about whatever holiday they want.

01:13 - 36.688 That's the charter doesn't say.

01:13 - 39.991 And so the mayor simply chose to exercise his authority

01:13 - 41.659 to issue these executive orders.

01:13 - 42.994 Ceremonial purposes.

01:13 - 45.463 That is an under abstract fine.

01:13 - 49.091 Under what section is the mayor exercising that authority?

01:13 - 52.245 I don't think there's a specific section that deals with this sort of

01:13 - 54.939 ceremonial function.

01:13 - 58.100 I mean, just generally mayors issue executive orders,

01:13 - 01.646 city council issues, ceremonial proclamations all the time.

01:14 - 03.882 Maybe recognizing a prominent Philadelphian

01:14 - 06.909 or a holiday or an event such as the Super Bowl.

01:14 - 11.723 The charter doesn't limit or constrain or assign that authority to anybody.

01:14 - 14.492 It's open to to both.

01:14 - 18.263 What doesn't the charter, enlarge or restrict

01:14 - 21.290 the powers of the executive branch?

01:14 - 22.767 Enlarge them?

01:14 - 26.404 Doesn't doesn't the City Council act to enlarge

01:14 - 29.631 the powers of the executive branch of the city government?

01:14 - 35.404 So if they were to pass a law limiting the or ordering the executive authority,

01:14 - 35.948 I mean, well,

01:14 - 37.615 you're saying that there's nothing in the Home Rule

01:14 - 41.443 charter that authorizes the mayor to act in this way, that it's political,

01:14 - 43.421 it doesn't not authorize the mayor.

01:14 - 45.223 I think that's that's the more important question here.

01:14 - 49.218 The argument is that the mayor is entrenching on legislative prerogative

01:14 - 50.662 and that's not the case.

01:14 - 53.989 There's nothing in the charter that says only the legislature can say

01:14 - 57.259 what a public holiday is for, for ceremonial purposes.

01:14 - 59.070 Now, there's of course, this provision

01:14 - 02.073 about the personnel director, but that's fallen by the wayside.

01:15 - 04.676 That claim has been withdrawn. We followed that procedure.

01:15 - 08.136 So again, this is just it's a matter of competing messaging

01:15 - 10.348 and that's what we get down to.

01:15 - 14.586 And the equal protection claim is that this is really only about messaging.

01:15 - 18.356 It's about folks who disagree with the government wanting to to file a lawsuit

01:15 - 21.383 to get them to change what they say is to match their own worldview.

01:15 - 23.761 And if the internet has taught us anything,

01:15 - 26.722 it's that folks will get offended about over just about anything.

01:15 - 31.002 So the idea that somebody has a cause of action

01:15 - 34.572 under the equal protection clauses to come into this court

01:15 - 37.675 and demand that that the government speak in a way that they want them

01:15 - 40.669 to speak in a way that's that's comforting and familiar to them.

01:15 - 43.114 It there's no place for that in Pennsylvania.

01:15 - 45.416 Equal protection law. There's no precedent for it.

01:15 - 46.684 And I think but

01:15 - 49.878 if you think about what you're saying, I mean, the flip side of all that is that

01:15 - 54.349 a mayor can just come in and willy nilly do what he or she desires,

01:15 - 57.896 because you're saying that they have the power by the executive order,

01:15 - 02.457 I mean that that's just that's actually worse than than the flip side.

01:16 - 05.637 Well, to do whatever they want in terms of issuing ceremonial

01:16 - 09.040 declarations, well, let's take away things.

01:16 - 13.335 I mean, do they have the authority to take away other holidays as well?

01:16 - 17.215 Again, if it's if it's something for ceremonial purposes?

01:16 - 19.484 There's nothing that stops.

01:16 - 24.289 Most holidays are for ceremonial purposes if we're talking about.

01:16 - 26.224 And then maybe you could even dispute, like you said,

01:16 - 28.293 they want to dispute anything on the internet.

01:16 - 31.362 Maybe they want to dispute religious holidays and somebody

01:16 - 34.389 who's an atheist and go, well, that violates what I believe.

01:16 - 37.602 Well, and what I think Your Honor is getting at is that, of course,

01:16 - 40.796 somebody is going to come forward and disagree with how things are violating

01:16 - 44.433 their beliefs, their their preferences.

01:16 - 48.012 I'm just saying I'm following through the logic of your argument.

01:16 - 51.740 It appears that you're saying that the the mayor has the ability to come in

01:16 - 55.310 and do absolutely anything and everything.

01:16 - 00.282 If you follow that argument to the logical end, I think.

01:17 - 02.660 So, of course, this is a hypothetical.

01:17 - 05.887 I don't know that if we're talking about if there are other breaks,

01:17 - 09.524 such as state law, saying that this must be something, must be a holiday,

01:17 - 12.570 that's one that's one circumstance.

01:17 - 14.472 If we're just talking about ceremonial speech,

01:17 - 17.976 I think the the federal government speech doctrines really explain nicely

01:17 - 21.746 that it's inevitable that government has to choose sides.

01:17 - 25.650 Sometimes they have to pick and choose, and you're choosing to define that.

01:17 - 28.586 It's just, a political expression.

01:17 - 29.754 It is a political expression.

01:17 - 31.389 It's it's government speech.

01:17 - 36.084 It's a you could say every day is every holiday is a political expression.

01:17 - 38.129 It could be. Yeah.

01:17 - 41.256 And that's that's just the nature of of government speech.

01:17 - 42.490 Every

01:17 - 43.936 looking at other

01:17 - 46.962 government speech cases, like deciding what monuments go in a park,

01:17 - 49.807 there has to be some picking and choosing to decide

01:17 - 52.410 which ones the government will accept and which ones they won't.

01:17 - 55.346 We don't have room for everyone to have a holiday.

01:17 - 59.441 Well, someone has to make those decisions and if the General Assembly makes them.

01:17 - 02.978 So my question is, if we find that there is preemption here,

01:18 - 06.415 do we even need to address the equal protection claims?

01:18 - 12.621 I, I don't know, I,

01:18 - 15.700 I think that that might be a question more for the plaintiffs

01:18 - 17.368 because they're the ones pursuing those claims.

01:18 - 22.840 But, again, I'm just asking if you would agree that would dispose of the case.

01:18 - 24.409 I think it would dispose of the case.

01:18 - 27.879 But again, just on the plain text of these state enactments,

01:18 - 29.947 they don't say anything about city holidays.

01:18 - 33.709 They don't muzzle the mayor and his ability or her ability

01:18 - 36.054 to assign names to holidays.

01:18 - 38.456 All they do is there's one about the governor

01:18 - 41.459 and there's one about bank holidays and the executive order.

01:18 - 42.361 I think you're right.

01:18 - 44.462 If you're if we. I'm sorry.

01:18 - 45.130 I think you're right.

01:18 - 47.598 If we were just talking about naming another holiday.

01:18 - 49.467 But here, that's not what's happening.

01:18 - 52.837 They're actually revoking, eradicating eviscerating

01:18 - 55.864 of state statute that made a holiday.

01:18 - 58.309 And that's the difference. But I know your time is up.

01:18 - 59.877 Yeah, I would just briefly respond.

01:18 - 05.049 Columbus Day remains a state holiday as long as the state wants to remain

01:19 - 06.684 a state holiday, it remains a federal holiday

01:19 - 08.986 as long as the federal government wants it to.

01:19 - 11.489 We're talking about a city holiday, which is its own

01:19 - 14.992 little form of political speech within the city of Philadelphia.

01:19 - 17.628 And these state statutes just don't don't talk to that.

01:19 - 18.097 They don't.

01:19 - 19.130 I tend to agree

01:19 - 22.557 with what you're saying regarding it remains a state and federal holiday.

01:19 - 26.003 So my inquiry is whether

01:19 - 29.107 or not renaming this for the city's

01:19 - 32.134 purposes, what they want to call it, might not have a practical effect.

01:19 - 35.413 And while I tend to hear and agree with most of what you're saying,

01:19 - 38.673 what I'm unsure about is that the preliminary objection phase,

01:19 - 42.053 whether we know whether there's a practical impact or not.

01:19 - 45.747 For instance, both of you said different things about the parade today.

01:19 - 49.861 So is this your last question going to standing

01:19 - 53.221 or to the unequal whether we would have to,

01:19 - 56.534 reverse the trial court for,

01:19 - 59.561 sustaining the preliminary objections?

01:19 - 02.597 See, I think ultimately this this

01:20 - 05.777 the issue that that is at the base of

01:20 - 08.846 the claims here is the executive order renaming the holiday.

01:20 - 12.850 That executive order on his face doesn't treat anyone differently.

01:20 - 14.719 It doesn't ban Columbus Day parades.

01:20 - 17.746 Again, that's a First Amendment problem.

01:20 - 20.358 It only says this is what the city is recognizing.

01:20 - 23.494 So nothing about that order treats any individual within the city

01:20 - 25.129 of Philadelphia differently.

01:20 - 30.334 It's for ceremonial purposes, but it can't rename the state and federal holiday.

01:20 - 33.471 I guess it could call it a actually noticed in the reproduced record

01:20 - 38.576 that, the local regulations use a slash

01:20 - 42.446 and it says Columbus Day slash Indigenous People Day.

01:20 - 46.150 And I thought perhaps that was because the city recognized

01:20 - 49.711 it doesn't have the power to, name a state and federal holiday.

01:20 - 52.557 I don't I don't know that that's the case.

01:20 - 53.425 I don't believe it is.

01:20 - 56.160 I think that was just the way that the personnel director did it.

01:20 - 57.728 I don't have an insight into that.

01:20 - 02.424 Okay, but no, there's no there's no state or federal law that mandates

01:21 - 05.837 that the city of Philadelphia must recognize Columbus Day.

01:21 - 08.864 There just isn't so

01:21 - 12.968 there's nothing to worry about us, but it but it can't rename is my point.

01:21 - 15.146 It can't rename the state and federal holiday.

01:21 - 17.615 I'm sorry, I'm getting,

01:21 - 20.251 our PJ's a wonderful person, but I'm feeling the eyeballs,

01:21 - 23.278 so I'm going to stop.

01:21 - 24.655 All right. Thank you very much.

01:21 - 27.024 Thank you.

01:21 - 29.460 Well, I wish I had a reserved

01:21 - 32.487 more than two minutes.

01:21 - 36.358 Judge cannon, your question was right on.

01:21 - 39.604 The mayor doesn't have that authority.

01:21 - 40.662 And in fact,

01:21 - 42.807 counsel,

01:21 - 45.834 esteemed counsel for the city, made the comment.

01:21 - 49.871 Well, there's nothing in the charter that says he doesn't have the power.

01:21 - 51.682 Oh, yes. There is.

01:21 - 54.552 Section one, dash 101 of the city

01:21 - 57.579 charter says all the power

01:21 - 02.584 of this municipality is exclusively reserved for city council,

01:22 - 06.254 unless specifically authorized to the mayor.

01:22 - 10.158 If you take that on its face

01:22 - 14.505 and you take council's representation, that there's nothing that addresses

01:22 - 18.776 the issue, that means it's been reserved exclusively for city council.

01:22 - 20.111 That's number one.

01:22 - 24.072 Number two, this whole idea about government speech,

01:22 - 28.310 this court recently unbound

01:22 - 34.258 in the Schenley Park Columbus statue matter, specifically recognized

01:22 - 37.585 that government free speech, particularly municipal

01:22 - 41.198 free speech.

01:22 - 45.193 Must not contravene a legislative act.

01:22 - 48.472 Government free

01:22 - 51.499 speech by the mayor is not unlimited.

01:22 - 56.504 If the legislature has exercised its speech, it's messaging.

01:22 - 58.983 We are going to celebrate Columbus Day.

01:22 - 00.976 We are going to do it statewide.

01:23 - 04.155 This mayor does not, as a

01:23 - 07.849 matter of constitutional law and preemption law,

01:23 - 11.119 does not have the right to say, oh, yes, it does.

01:23 - 15.323 The simplest analogy I might give you is,

01:23 - 19.094 we all have the right of free speech,

01:23 - 24.775 but let's say we work in an organization, and the president of the organization

01:23 - 28.813 says this organization will recognize

01:23 - 31.840 this particular holiday,

01:23 - 34.943 and all of our employees are going to get the day off.

01:23 - 39.914 And some divisional chairman in Buffalo, New York says,

01:23 - 44.252 oh, no, no, no, no, not for my employees that work in Buffalo.

01:23 - 46.397 He doesn't have that free speech, right?

01:23 - 48.265 He works for an organization.

01:23 - 53.337 He's part of the organization's speech and the superior speech

01:23 - 57.732 in that organization has spoken just like it has in this case.

01:23 - 03.071 And I urge you to not be misled

01:24 - 06.617 by the so-called Pooh poohing

01:24 - 11.179 of the significance of this issue, which is, oh, it's just ceremonial.

01:24 - 13.491 It is not ceremonial.

01:24 - 16.427 This is what our country is founded on.

01:24 - 19.721 What do you do if every county decides to take action?

01:24 - 25.102 And all 67 counties say we're not recognizing Columbus Day,

01:24 - 29.397 we're renaming it not as nonexistence, but we have the states that do that

01:24 - 31.409 that says we recognize this.

01:24 - 33.477 Yeah, yeah, you're absolutely right.

01:24 - 35.312 Judge cannot do that.

01:24 - 38.339 This is a unified commonwealth

01:24 - 42.110 that the municipalities and the Home Rule Act

01:24 - 47.582 only give authority to municipalities to do such things

01:24 - 52.396 that are not inconsistent with what the General Assembly would do.

01:24 - 57.134 They in Philadelphia have Indigenous Persons Week in Philadelphia.

01:24 - 01.105 That happens to be the exact same week that Columbus Day falls

01:25 - 02.773 where we have the state.

01:25 - 04.875 Then it's not renaming a day.

01:25 - 06.177 It's not renaming a day.

01:25 - 11.139 That was, you know, by the by using the phrase rename.

01:25 - 15.052 When the city says rename, it's trying to unnamed something that the state

01:25 - 16.887 and the federal government named.

01:25 - 19.623 But what about if it was an indigenous person's Week

01:25 - 22.650 and it was that the week of October 12th?

01:25 - 24.862 I think they probably could do that.

01:25 - 28.299 And that that just one final point that I made, that kind of leads

01:25 - 34.839 to the Third Circuit's a little gem that if naming a holiday is a equal protection

01:25 - 38.533 violation, then Columbus Day is an equal protection violation.

01:25 - 40.111 No, that's not true.

01:25 - 43.114 Equal protection talks about government acts

01:25 - 45.749 not where the government doesn't act.

01:25 - 48.776 The fact that the government has not yet

01:25 - 52.656 recognized, I think the point of

01:25 - 56.393 that was that the government and named Columbus Day in the first instance.

01:25 - 57.895 So there was a government action.

01:25 - 02.199 But then but then we would be evaluating the intent and naming Columbus Day.

01:26 - 04.435 And that goes back to sailing the ocean blue.

01:26 - 07.104 So I think that's a conversation for another day. Okay.

01:26 - 08.930 Very well. Thank you. Thank you very much.

01:26 - 11.376 I'm not a sympathy.

01:26 - 13.744 Go fix this next case.

01:26 - 18.682 Be in December of 2022, when a police Thornbury Township

01:26 - 20.251 in Middletown Township

01:26 - 23.311 filed a complaint in the Court of Common Pleas of Delaware County

01:26 - 25.422 seeking a declaration

01:26 - 28.449 that they are permitted to continue to administer their health codes

01:26 - 32.854 until such time as they choose to join the Delaware County Health Department.

01:26 - 35.966 In January of 2023.

01:26 - 39.770 Appellants, which are the County of Delaware and Delaware County Health.

01:26 - 45.209 Department, at a separate docket number filed a request for preliminary injunction

01:26 - 49.079 with the trial court seeking to enjoin certain appellees

01:26 - 52.507 from interfering with the duties of the Delaware County Health Department.

01:26 - 56.287 As a separate docket number.

01:26 - 00.157 The Delaware County Health Department also sought a permanent injunction

01:27 - 04.252 against certain appellees in February of 2023.

01:27 - 09.333 At a fourth docket, number appellees Clifton Heights Borough and Eddystone.

01:27 - 10.868 Borough filed a complaint

01:27 - 16.040 requesting a declaratory judgment and permanent injunction seeking to enjoin

01:27 - 19.234 appellants from conducting food and beverage inspections.

01:27 - 22.746 In January of 2024,

01:27 - 25.773 the trial court consolidated these four matters for decision.

01:27 - 29.853 Appellants now seek appellate review of a February

01:27 - 33.114 28th, 2024 order of the trial court

01:27 - 37.852 which enjoined them from conducting any health inspections for food,

01:27 - 41.723 beverage and retail establishments located in the palace.

01:27 - 44.468 Municipalities.

01:27 - 48.096 Appellant state that this matter involves a question of exemption

01:27 - 52.634 from the Local Health Administration Act, known as act 315,

01:27 - 55.779 and that sections one, two, 013

01:27 - 00.985 and 12014 of act 315 contain identical language

01:28 - 04.112 regarding the exemption at issue, specifically

01:28 - 07.915 that all municipalities or parts of municipalities

01:28 - 11.552 in which the local administration of health laws at the time

01:28 - 15.657 the establishment of the County Department of Health is being performed

01:28 - 18.926 by the state Department of Health for any reason whatsoever,

01:28 - 22.630 are not exempt from the jurisdiction of a county health department.

01:28 - 25.342 Appellants argue

01:28 - 28.636 that the rules of statutory construction are applicable in this matter,

01:28 - 31.939 particularly as this is an issue of first impression.

01:28 - 36.244 Appellants maintain that the trial court disregarded evidence

01:28 - 38.322 demonstrating that a police were not performing

01:28 - 41.349 the local administration of health laws in all regards,

01:28 - 45.586 and rely instead upon the state Department of Health for these services.

01:28 - 49.867 Appellants also claim that the trial court improperly placed the burden

01:28 - 53.037 on appellants to demonstrate that a police were not exempt.

01:28 - 55.539 Municipalities.

01:28 - 58.075 Appellate Township of Lower.

01:28 - 01.102 Chichester argues that appellant's argument

01:29 - 04.214 that it was governed by the state Department of Health and therefore

01:29 - 07.975 should now be under its jurisdiction, lacks any support in the record,

01:29 - 10.554 and that the trial court properly held

01:29 - 13.357 it had established that it had an operational Board of Health

01:29 - 16.384 at the time of the establishment of the county health department,

01:29 - 19.563 and was therefore exempt from its jurisdiction,

01:29 - 22.390 a fact acknowledged by the State Secretary of Health,

01:29 - 24.436 a police.

01:29 - 27.762 Thornbury Township, Middletown Township, Ridley Park.

01:29 - 32.776 Borough, Clifton Heights Borough, and Eddy's Town borough argue

01:29 - 34.445 that the trial court properly ruled

01:29 - 37.181 they are exempt from the jurisdiction of appellants

01:29 - 41.919 because they had health departments prior to the creation of the Delaware County.

01:29 - 45.789 Health Department, and they did not rely on the state Health Department

01:29 - 48.816 of Health for the administration of their health laws.

01:29 - 51.428 Now, let's go into the arguments.

01:29 - 53.530 Good morning, honorable judges. And may it please the court.

01:29 - 54.631 My name is James Gallagher,

01:29 - 57.735 and I represent the county of Delaware and the Delaware County Health Department.

01:29 - 00.170 May I please reserve two minutes of time for rebuttal?

01:30 - 01.039 You have it.

01:30 - 02.740 Thank you, Your Honor.

01:30 - 06.401 This matter involves the jurisdiction of a county health department.

01:30 - 08.579 That is the crux of this case.

01:30 - 13.274 This is involving act 315, otherwise known as the Local Health Administration Act.

01:30 - 18.513 Under act 315, there are two specific subsections that are before you today.

01:30 - 22.750 That's subsection 12, 2013 and 2014.

01:30 - 25.562 Both of these subsections

01:30 - 28.356 almost mimic one another in their language, and they deal with

01:30 - 30.601 the jurisdiction of a

01:30 - 33.628 health department and the exemption there from.

01:30 - 37.474 There are two elements that must be provided or proven

01:30 - 39.243 in order for an exemption to apply.

01:30 - 42.112 So, first and foremost, the jurisdiction of a county health

01:30 - 45.473 department applies to the entire of that county.

01:30 - 47.751 That's all of the municipalities.

01:30 - 50.320 However, an exemption may be proven

01:30 - 53.314 first by establishment of a health department.

01:30 - 54.458 Local health department.

01:30 - 57.428 Prior to the establishment of the county health department.

01:30 - 58.896 That really isn't the issue in this case.

01:30 - 01.598 However, the focus really is on the second issue,

01:31 - 05.769 and that is to to demonstrate that the administration of all of the local health

01:31 - 09.630 ordinances are being administered by the local municipality.

01:31 - 13.534 None of them are being administered by the state Department of Health.

01:31 - 17.004 And the statute is clear it says whatsoever.

01:31 - 18.272 So that is unequivocal.

01:31 - 20.518 Your honor,

01:31 - 23.578 I submit that this is a matter of first impression for this court.

01:31 - 26.657 There are not many county health departments in the state.

01:31 - 31.185 So therefore, I would submit that there's not many challenges of this nature.

01:31 - 34.755 In fact, the last that I had noticed was in 1957

01:31 - 37.734 regarding the establishment of the Allegheny Health Department.

01:31 - 40.761 So this is so you're saying we don't need to look out

01:31 - 45.476 when the municipal health departments were organized versus

01:31 - 48.803 when the county Department of Health was established?

01:31 - 52.583 Oh, no, Your honor, I apologize if that was a misunderstanding by my part.

01:31 - 55.352 What I meant to say is that in this case, I believe it.

01:31 - 56.386 All of the approaches

01:31 - 00.157 had an established board of Health or Health department prior,

01:32 - 03.393 so that isn't really an issue for us, and I apologize.

01:32 - 05.152 Don't contest it. Okay. Yes. Thank.

01:32 - 07.931 However, I would ask

01:32 - 10.958 that this court consider other areas of the law.

01:32 - 12.603 We look at criminal justice.

01:32 - 15.239 We look at taxation, we look at the right to know all.

01:32 - 17.741 These are all items that I discussed in my brief.

01:32 - 21.178 But in the criminal aspect, a defendant is required

01:32 - 24.205 to prove their exemption

01:32 - 26.650 in taxation to taxpayers

01:32 - 30.144 required to prove their exemption in the right to know law.

01:32 - 33.724 The government is required to prove their exemption to do so.

01:32 - 38.262 Otherwise, to require the the prosecution or the government or the requester

01:32 - 41.689 to prove the nonexistence of the exemption would turn the exemption on its head.

01:32 - 46.803 I respectfully submit the lower court did just that in this case, by providing

01:32 - 51.365 or expecting the health Department to prove the lack of an exemption here.

01:32 - 53.311 Your honor, if we look

01:32 - 57.071 to section 12,002 of act 315,

01:32 - 01.776 this discusses the legislative findings and purpose of act 315.

01:33 - 06.924 The legislature determined that the promotion and protection of public

01:33 - 09.951 health is one of the highest duties of the Commonwealth.

01:33 - 14.264 I submit that that is a high duty equal to the administration of criminal justice,

01:33 - 17.992 taxation and government transparency, and therefore the government

01:33 - 21.738 or the legislature intended for the exemption to apply similarly

01:33 - 24.765 as it does in those instances, as well.

01:33 - 28.246 When interpreting this

01:33 - 31.272 statute, the Statutory Construction Act,

01:33 - 34.818 requires that first and foremost, if the language of the statute is clear

01:33 - 39.280 and unambiguous that the plain meaning of that statute then be applied,

01:33 - 43.293 and are taking into consideration the legislative findings

01:33 - 45.596 and the Statutory Construction Act.

01:33 - 47.898 The testimony demonstrated that

01:33 - 50.925 the appellees will reply apply.

01:33 - 51.536 Excuse me.

01:33 - 57.064 Rely upon the state for certain, health provisions, including,

01:33 - 02.346 infectious and contagious disease control, and will in fact,

01:34 - 06.774 rely upon the county for the provision of health services as well.

01:34 - 11.078 So in the testimony in the trial court, make findings of fact

01:34 - 16.384 as to when each municipality established their health department.

01:34 - 18.228 And then it's undisputed as to

01:34 - 21.288 when the county health department came into existence.

01:34 - 25.026 So like, again, like you said, I think there's no dispute there.

01:34 - 28.529 And then if you look at administering the law,

01:34 - 31.942 it's a some that the state would have to be in there

01:34 - 36.313 all the time administering the Department of Health for local municipalities.

01:34 - 39.140 But that was also concluded that it didn't exist.

01:34 - 42.986 Your honor, respectfully, as to the first element,

01:34 - 46.123 I don't dispute that the establishment of those health

01:34 - 49.292 departments was prior to the establishment of the county health department.

01:34 - 52.353 But isn't that clearly what section 13 says?

01:34 - 54.631 That's only the first element, though, Your honor.

01:34 - 55.899 Respectfully.

01:34 - 56.834 The second element.

01:34 - 00.804 And that's really the crux of this case as far as the county is concerned, is

01:35 - 06.276 whether the state Department of Health is performing any of the duties whatsoever.

01:35 - 07.878 I don't think that's the language.

01:35 - 10.047 I think it says administer.

01:35 - 12.649 Your Honor, if I may, the the language

01:35 - 15.676 specifically says,

01:35 - 17.454 the jurisdiction of an established

01:35 - 19.756 county Department of health in the county or counties

01:35 - 22.192 which have established it shall extend to all townships

01:35 - 25.595 of the second class, to all municipalities which do not have department

01:35 - 26.730 or boards of health.

01:35 - 29.366 At the time of the establishing of the county Department of Health.

01:35 - 32.235 That is the first element to all municipalities

01:35 - 35.796 or parts of municipalities in which the local administration of health laws

01:35 - 39.366 at the time of the establishment of the County Health Department of Health

01:35 - 43.404 is being performed by the state Department of Health for any reason whatsoever,

01:35 - 47.217 and to elements powers which to dissolve their departments.

01:35 - 49.119 But that is not an issue here.

01:35 - 52.246 So in this instance, I would respectfully submit that

01:35 - 55.358 if there's any reason why the State Department

01:35 - 59.754 or any other department for that matter is performing the health services

01:35 - 02.990 for the municipality, they are not, therefore exempt.

01:36 - 06.794 And that is where I am arguing that the court heard

01:36 - 10.131 that they had flipped the exemption and made it the rule.

01:36 - 17.280 That say, except that any municipality

01:36 - 20.307 in which the local administration of health laws

01:36 - 23.854 at the time of establishment of the county Department of Health

01:36 - 26.947 is being performed by Department of Health.

01:36 - 30.894 So the local administration of health laws, I don't

01:36 - 34.255 I don't think there's any evidence in the record to establish

01:36 - 38.225 that the Department of Health was administering local health laws.

01:36 - 41.838 And respectfully, Your Honor, that is one of the arguments

01:36 - 44.965 in our brief, which it concerns, the permanent injunction.

01:36 - 49.503 And the question is if there is unclean hands, does a permanent injunction apply?

01:36 - 53.107 The testimony of Sarah Nucci, who was one of the caseworkers

01:36 - 56.753 for the Department of Health, attempted to gain this information

01:36 - 01.348 from the appellees and was was not provided any information.

01:37 - 03.760 It would be

01:37 - 05.629 placing the burden upon,

01:37 - 08.331 for instance, the prosecution or the government.

01:37 - 09.533 If we were use the examples

01:37 - 13.127 that I'm using to prove that there's the nonexistence of the exemption.

01:37 - 14.671 And that's exactly what happened here.

01:37 - 18.032 The Department of Health was required to prove that an exemption did not exist,

01:37 - 22.670 but then was not provided the information to essentially present its case.

01:37 - 25.749 But in the Department of Health, I have to come in and say

01:37 - 29.319 we're doing A through X, so therefore we're there

01:37 - 32.379 on a regular basis, administering health laws.

01:37 - 35.292 Yes. And that was attempted.

01:37 - 37.494 We did attempt to establish that the

01:37 - 40.297 the lower court did not want to hear evidence on that.

01:37 - 44.325 That question more related to what wasn't being done.

01:37 - 47.938 And essentially it was not limited.

01:37 - 51.041 It was not permitted to discuss that during the lower courts, that there was

01:37 - 54.068 a finding actually to the contrary,

01:37 - 57.371 there was no evidence presented.

01:37 - 59.616 Your honor, again, respectfully, I disagree.

01:37 - 01.017 The testimony of more Sally

01:38 - 04.454 and the testimony of Mary Carbonara, all the officials

01:38 - 07.581 that testified for Department of Health testified to that fact.

01:38 - 09.893 They testified to the things they are doing,

01:38 - 12.920 that there was extensive testimony to that.

01:38 - 17.200 Contrary was, however, the testimony by the appellate was quite

01:38 - 21.137 the opposite, that there are part time or in some cases,

01:38 - 25.266 seasonal health department officers for the appellate municipalities.

01:38 - 29.412 They are providing the provision of services for 20 hours a week, in

01:38 - 32.973 one case, only during the time that restaurant inspections are necessary.

01:38 - 36.486 And that's the other issue that is a problem with this matter,

01:38 - 40.056 Your Honor, is that under the Statutory Construction Act, if you do not find that

01:38 - 42.893 the language is clear and unambiguous, the next thing would be to determine

01:38 - 46.029 whether the result of an interpretation would result

01:38 - 49.490 in something that is absurd, impossible of application on unreasonable.

01:38 - 51.302 In this

01:38 - 55.138 instance, the testimony demonstrated that we would have,

01:38 - 58.265 where as a part time workers or seasonal workers,

01:38 - 01.912 that simply can't be

01:39 - 05.906 in conjunction with the, the legislative findings of 2002,

01:39 - 11.045 the purpose and intent of act 315 to only have part time or seasonal workers

01:39 - 16.493 in the trial court say that in issuing the permanent injunction that this creates

01:39 - 21.755 mass confusion and, you know, hurts the economics of the community.

01:39 - 25.392 I mean, the result is is devastating.

01:39 - 30.173 Your honor, I respectfully in some ways, I agree with you if I understand

01:39 - 35.045 what you're saying, the question from both parties, we certainly disagree.

01:39 - 38.648 That is why we're here, but is that we are concerned about the confusion

01:39 - 42.352 this will cause, whether for the appellate is their point of view.

01:39 - 45.789 But for the appellants, our point of view is having a situation

01:39 - 50.317 where the state is administering health in certain aspects, the county and others

01:39 - 54.564 and the municipality, and again, others will then create this confusion

01:39 - 55.732 that we are trying to avoid.

01:39 - 56.500 I mean,

01:39 - 59.069 I probably and council can correct me if I'm wrong when they get up,

01:39 - 01.271 but my understanding from the record was that

01:40 - 03.907 the state only came in in a few instances, and

01:40 - 07.735 I think there were contagious disease when you actually had to notify the state.

01:40 - 09.380 But it's

01:40 - 12.649 interesting because all of these organizations were operating

01:40 - 17.478 before the county Department of Health decided to step in and seek to take over.

01:40 - 20.123 So, like, everybody was getting along excellent.

01:40 - 23.150 There was no problems until the county came in.

01:40 - 27.330 Well, Your Honor, I respectfully, with regard

01:40 - 30.424 to whether everyone was getting along, I can't answer that question.

01:40 - 33.236 However,

01:40 - 35.772 the issue about the administration of health

01:40 - 38.942 law goes to, first, the testimony that was demonstrated.

01:40 - 42.379 But really what it is that the appellate municipal

01:40 - 45.839 ities will do if they are permitted to just have carte blanche.

01:40 - 50.277 The testimony demonstrated that the intention is to

01:40 - 55.883 is to, conduct retail food establishment inspections, school inspections

01:40 - 57.927 and public swimming pool inspections.

01:40 - 02.132 That simply cannot be the breadth of health law and Commonwealth

01:41 - 02.967 of Pennsylvania.

01:41 - 07.127 It is not, in fact, although this is not part of the record.

01:41 - 11.165 In the interim of this appeal, before today's oral argument,

01:41 - 14.477 there was a status conference to discuss whether the county

01:41 - 18.305 would be providing insect control and vis-a-vis mosquitoes.

01:41 - 22.685 Because we are, by the, issuance

01:41 - 26.322 of the injunction by the lower court, prevented from having any jurisdiction.

01:41 - 29.025 We cannot exercise any function in these municipalities.

01:41 - 32.319 However, the municipalities are asking for mosquito control spray.

01:41 - 35.632 That is a function of the health department.

01:41 - 38.725 So just there, we've already begun to

01:41 - 42.096 create this confusion that I am concerned my client is concerned for.

01:41 - 44.074 Okay. But it's not part of the record.

01:41 - 46.533 So we just didn't hear what you said.

01:41 - 48.012 Very well.

01:41 - 50.046 You're on

01:41 - 50.614 and you're out.

01:41 - 51.748 My time is almost up.

01:41 - 53.917 However, I do want to address that there

01:41 - 56.486 there must be three elements established in a permanent injunction.

01:41 - 58.288 That's a clear rights relief,

01:41 - 01.391 that compensatory damages are not applicable in that case.

01:42 - 03.059 In this case, I don't think that's an issue.

01:42 - 07.221 There is no compensatory damages that could possibly not be an issue.

01:42 - 10.524 The state can always step in, though, can't it?

01:42 - 14.361 Arguable, yes, Your Honor, but though go ahead.

01:42 - 16.005 I am sorry for interrupting.

01:42 - 18.308 You know, just the state can always.

01:42 - 22.479 It has the authority to step in at any time and take over the municipality.

01:42 - 25.506 If the level of services, if they think are not adequate.

01:42 - 30.587 Yes. However, the state has already determined and authorized

01:42 - 34.114 the Delaware County Department of Health as a county health department.

01:42 - 38.118 It almost renders act 315 meaningless.

01:42 - 41.798 At that point.

01:42 - 44.501 A lot of your arguments, correct me if I'm wrong,

01:42 - 48.328 are given the evidence presented at trial, right?

01:42 - 51.274 Yes. Right. And that they're legal issues.

01:42 - 55.235 But I hear you today saying that you were present, that,

01:42 - 00.040 the county was prevented from presenting evidence,

01:43 - 05.212 which undermines that part B of that statute

01:43 - 08.749 having to do with the state being involved in regulating health.

01:43 - 13.820 That's your argument, but you're not arguing in your brief

01:43 - 17.500 evidentiary objections

01:43 - 20.527 like we weren't we weren't permitted to present this evidence

01:43 - 24.298 like an evidentiary objection is different than a legal,

01:43 - 26.943 argument.

01:43 - 28.411 Yes. And, Your Honor, I apologize.

01:43 - 30.580 In my time, I had to answer respectfully.

01:43 - 32.348 Yes, I understand your point.

01:43 - 35.418 However, I believe that the legal basis of our objections

01:43 - 37.320 and the purpose of our appeal today,

01:43 - 41.281 can still stand and are meritorious without raising the evidentiary.

01:43 - 44.384 Based on the existing record, you believe you would prevail?

01:43 - 45.529 Yes. You're right. Okay.

01:43 - 47.421 Thank you. Thank you very much.

01:43 - 56.129 Please.

01:43 - 57.041 Good morning.

01:43 - 58.308 May it please the court.

01:43 - 01.911 My name is Caitlin Searles, and I'm here on behalf of the municipalities,

01:44 - 03.947 involved in this matter.

01:44 - 05.648 Mr. John Riley is here as well,

01:44 - 08.675 so I would reserve two minutes at the end for him to follow up.

01:44 - 12.455 I believe that.

01:44 - 16.683 Judge Bradley in the lower court in Delaware County succinctly,

01:44 - 22.289 put this matter when he said that once this court determined

01:44 - 26.102 that the municipal parties had operational boards of health

01:44 - 29.463 at the time of the establishment of the Delaware County Health Department,

01:44 - 33.033 and that the state Department of Health was not administering

01:44 - 37.804 the health laws in those municipalities, that it was incumbent on the court

01:44 - 41.050 to preclude the Delaware County Health Department from conducting

01:44 - 44.778 environmental health inspections in those municipalities.

01:44 - 49.216 To break this down, we are here on the ruling.

01:44 - 53.086 Well, on a declaratory declaratory judgment

01:44 - 57.124 and as well as the, permanent injunction.

01:44 - 00.427 However, I submit to the court that the county

01:45 - 04.197 did not appeal the ruling for the declaratory judgment.

01:45 - 09.002 But the declaratory judgment ruling forms the basis of the injunction

01:45 - 11.805 that the county is here arguing against.

01:45 - 13.284 Judge.

01:45 - 16.310 Bradley's order, which was not appealed to this court.

01:45 - 19.289 Very clearly stated that.

01:45 - 20.490 And the Commonwealth.

01:45 - 23.583 I'm sorry, the county does not even argue that these municipalities

01:45 - 25.261 did not have operational health

01:45 - 28.525 departments at the time of the formation of the Delaware County Health Department.

01:45 - 31.534 The county argues

01:45 - 35.028 that the state was administering their health laws,

01:45 - 39.700 and therefore these municipalities do not qualify for the exemption.

01:45 - 43.103 That's carved out in subsection 12013.

01:45 - 47.183 And I believe the questions were raised, by Your Honor.

01:45 - 50.210 Cove about

01:45 - 53.122 what the administration of health also looks like.

01:45 - 58.118 And I would submit to the court that reporting your cases of tuberculosis

01:45 - 01.931 or to bring it into real life, measles, to report that to

01:46 - 05.959 the state, is not the state now administering your health loss?

01:46 - 07.937 Your Board of Health is doing that.

01:46 - 10.206 We want to encourage that information.

01:46 - 14.701 That's how information is collected for the state level and for the federal level.

01:46 - 19.506 So the fact that these municipalities report cases of communicable diseases

01:46 - 23.243 and I believe the record also supports that they sought guidance during,

01:46 - 25.288 instances like Covid.

01:46 - 28.315 That does not mean the state is administering their health loss.

01:46 - 32.018 In fact, administration of health falls has a definition.

01:46 - 35.231 It can't be just what we decide it is

01:46 - 38.225 or argue that it is, under 71.

01:46 - 42.496 Pennsylvania statute 532

01:46 - 47.601 and I, I believe it is it defines

01:46 - 50.613 when a state Department of Health

01:46 - 54.674 can step in if there is an or if there is no health department

01:46 - 59.479 or must step in if a municipal health department is not running efficiently,

01:46 - 02.692 and there's no evidence in the record to support that,

01:47 - 05.886 that is what the Pennsylvania State Department of Health

01:47 - 09.866 was doing at any time for these municipalities council.

01:47 - 11.158 Are there service gaps?

01:47 - 14.170 I don't believe so, Your Honor.

01:47 - 17.664 These, as it was, brought out a moment ago.

01:47 - 22.378 These municipalities have had operational health departments for years.

01:47 - 25.405 I mean, one Ridley Park dating back to 1908.

01:47 - 30.153 And there is no evidence that at least in the record, that there are things

01:47 - 33.713 that are not being handled or things that are not being handled efficiently.

01:47 - 39.028 The township supervisors, as well as health code officers, testified

01:47 - 43.232 and provided statements at the lower court of the programs that they offer

01:47 - 46.326 and how they are, administering their health laws.

01:47 - 48.771 And the record does not support that. There would be a gap.

01:47 - 51.407 And and funding comes from where for the

01:47 - 55.135 for the municipalities health, the health services.

01:47 - 58.481 I would believe the funding would probably come from the state.

01:47 - 59.715 Okay.

01:47 - 02.452 And we would not dispute that.

01:48 - 04.620 But also

01:48 - 07.256 and I, I'm not suggesting there is a gap because the evidence,

01:48 - 09.592 the record does not support that, but there is no reason

01:48 - 11.494 that the health departments cannot work together.

01:48 - 15.589 And I think that specifically noted in acting Secretary Kline Painter's

01:48 - 19.368 letter to Lower Chichester, in this matter

01:48 - 23.763 that is, part of the record when lower, try to ask or sought guidance

01:48 - 26.776 from the secretary of the health Department.

01:48 - 31.647 That said, and I'm, summarizing, we have our own health department.

01:48 - 33.583 The county started theirs.

01:48 - 35.918 We don't want to give up our health department.

01:48 - 39.222 And so our guidance on what to do and the letter back

01:48 - 43.083 and the instruction back was both serve very important purposes.

01:48 - 46.286 And our hope is that you can find a way to work together.

01:48 - 47.930 And we agree with that.

01:48 - 51.734 And the municipalities would like to do that if there was a gap

01:48 - 55.262 and if the municipalities weren't performing certain services

01:48 - 59.499 as required by law, with the county, be able to step in and fill

01:49 - 02.812 that void, I don't see why not.

01:49 - 03.580 I don't see why not.

01:49 - 05.915 I don't see why they couldn't, work together.

01:49 - 10.353 The idea that it's impossible or would be I forget what the language from Mr.

01:49 - 13.380 Gallagher was, but that it would not be practical.

01:49 - 15.925 I don't think anything supports that. They.

01:49 - 18.928 Before the establishment of the Della County Health Department.

01:49 - 22.756 There's two witnesses on behalf of the municipalities

01:49 - 27.303 who testified that they would go to, meetings

01:49 - 29.639 several times a year with the county and with the state,

01:49 - 32.666 and they would talk about Delaware County health related issues.

01:49 - 35.211 And, they would work together before.

01:49 - 37.395 So there's no reason that they can't work together now.

01:49 - 41.408 Do you know how many hospitals there are in Delaware County?

01:49 - 43.019 I don't I'm sorry.

01:49 - 45.955 Unfortunately, they seem to be closing a lot,

01:49 - 48.357 but I'm not sure the exact number.

01:49 - 52.953 Did you hear counsel's argument about, section 12013

01:49 - 57.724 and the second part having to do with the state regulating.

01:49 - 01.461 And he said that they tried to get evidence in about that.

01:50 - 03.873 Do you recall that argument that he made?

01:50 - 04.974 I recall that argument.

01:50 - 06.576 And would you care to respond to that?

01:50 - 10.212 Sure. I believe that I don't recall,

01:50 - 13.740 the county not being able to get any evidence in.

01:50 - 15.651 I know that the record support,

01:50 - 19.212 I think the argument was this kind of burden shifting, argument.

01:50 - 23.225 I believe that Judge Bradley's order is clear

01:50 - 24.393 that he made his decision

01:50 - 27.420 based upon the evidence presented by the municipalities,

01:50 - 32.225 that they had these active boards of health or, health offices,

01:50 - 35.571 and that they were administering their own health laws.

01:50 - 39.165 He made that determination and then later, in his opinion,

01:50 - 43.970 discussed what was presented by the county because he said

01:50 - 48.884 the county made this declaration that it was not proven.

01:50 - 53.990 However, the evidence is I'm support that because they did put on two witnesses

01:50 - 58.461 that the director of the Delaware County Health Department, as well as the director

01:50 - 01.521 of the Environmental Health Section, which is what we're dealing with here.

01:51 - 05.067 And when asked, do you know any services or do you know

01:51 - 08.371 of the state administering the health laws in any of these municipalities?

01:51 - 09.739 And the answer is no, we don't.

01:51 - 12.799 And there's no evidential objection before us on this appeal.

01:51 - 13.832 Correct. Okay.

01:51 - 20.083 So I guess,

01:51 - 23.243 again, I just would like to, reiterate that,

01:51 - 27.147 Judge Bradley's finding on the declaration

01:51 - 30.626 on a declaratory judgment action, which only part of

01:51 - 34.430 it was even argued today, which would be the administration of the health laws.

01:51 - 38.324 The first part about having health departments was not objected to

01:51 - 44.698 was not we submit to the court that that is not even properly on appeal

01:51 - 49.211 because the appeal was taken under rule 311 for interlocutory

01:51 - 53.849 appeals of injunctions and in order to have appealed

01:51 - 55.317 the declaratory judgment action,

01:51 - 58.988 the county would have had to file post-trial motions and had a final order,

01:51 - 02.015 and then filed the appeal on the declaratory judgment.

01:52 - 05.552 Well, did not court already issue an order with regard to that?

01:52 - 06.962 Well, yes.

01:52 - 11.391 We, on behalf of the municipalities, we filed a application to quash,

01:52 - 14.437 saying that the county had to abide

01:52 - 17.497 by, had to file post-trial motions and did not.

01:52 - 20.676 And the county's response was nowhere appealing under

01:52 - 23.512 rule 311, interlocutory.

01:52 - 26.849 Preliminary doctrines as of.

01:52 - 27.718 Right.

01:52 - 31.420 But the argument in the brief and before the court also included

01:52 - 37.526 the declaratory judgment, order, which is more than just appealing.

01:52 - 41.488 The injunction is the only issue before us is the permanent injunction.

01:52 - 46.035 That's what we okay before an agreement that yes.

01:52 - 49.705 Then and even more so because appellants recognize

01:52 - 53.666 that and the court issued an order accordingly based on your motion to quash.

01:52 - 55.746 Correct.

01:52 - 00.015 But I'm also pointing out that the ruling for the declaratory judgment

01:53 - 05.311 that was never appealed is what form the basis of the permanent injunction.

01:53 - 08.924 And so that was never challenged, you know, by the lower court

01:53 - 11.951 or challenge before this court here,

01:53 - 14.230 what's the date of the preliminary,

01:53 - 17.223 the permanent injunction order?

01:53 - 18.502 Okay.

01:53 - 21.528 Give me one moment.

01:53 - 26.966 The the final order was February 28th of 24.

01:53 - 31.437 Following the trial on February 1st.

01:53 - 33.183 Okay.

01:53 - 35.484 I have a note that I wrote.

01:53 - 37.987 The order was entered after the hearing on February 1st,

01:53 - 41.757 but before entry of a final order, which in this context

01:53 - 43.726 is entry of the judgment,

01:53 - 46.753 which would be after disposition of post-trial motions

01:53 - 49.331 because post-trial motions were never filed.

01:53 - 50.300 Right? Right.

01:53 - 54.036 So that this appeal is of the, permanent injunction

01:53 - 58.140 as of right, with rule 311, but no post-trial

01:53 - 01.877 motion was filed regarding that a declaratory judgment.

01:54 - 03.612 That's correct. Right. That's correct.

01:54 - 08.541 And therefore, because they weren't they had no ability to appeal.

01:54 - 11.253 Correct.

01:54 - 14.280 That's correct.

01:54 - 33.342 If I could also note, because we did establish that we're here

01:54 - 37.146 on the permanent injunction that the record, fully

01:54 - 41.474 supports, the lower court's order in finding the permanent injunction.

01:54 - 45.788 There were three elements that the party requesting.

01:54 - 49.782 The injunction establishes that the right to right to relief is clear.

01:54 - 53.929 And, the record adequately supports the lower court's finding that

01:54 - 58.925 the municipalities established they had operational health, departments,

01:54 - 03.363 which is not even in dispute here, and that their laws were being administered

01:55 - 06.633 by their health department and not by the state health department,

01:55 - 08.011 that the injunction

01:55 - 11.704 was necessary to avoid an injury that cannot be compensated by damages.

01:55 - 16.476 This was agreed to by the county in their brief on page 29,

01:55 - 17.687 and that greater injury

01:55 - 20.713 would result from refusing rather than granting the injunction.

01:55 - 24.560 And here, as I pointed out in my brief, the law is clear

01:55 - 30.123 that if the activity, the activity that you are trying to enjoin

01:55 - 35.237 violates a statute which here it would violate, section one two.

01:55 - 39.065 Oh, one three, then you have made your case

01:55 - 44.037 for the greater injury, portion of that, test.

01:55 - 47.250 So Riley would

01:55 - 50.252 like, unless there's any other questions,

01:55 - 51.787 he he may proceed then.

01:55 - 52.821 Thank you very much.

01:55 - 55.848 And thank you for your time.

01:55 - 00.262 Good morning, members of the court.

01:56 - 00.797 John Riley.

01:56 - 03.823 I'm here on behalf of Lower Chichester Township.

01:56 - 08.027 I don't have anything to add to this, Cheryl's presentation.

01:56 - 11.240 She gave a thorough presentation that also represents

01:56 - 14.410 the position of Lower Chichester Township.

01:56 - 17.570 I'm happy to answer any questions, that you have.

01:56 - 22.751 We peppered her with the questions.

01:56 - 25.321 That was good strategy, counselor.

01:56 - 27.456 She did do a thorough job. Thank you.

01:56 - 29.425 Just one other point that I would like to make.

01:56 - 32.552 With regard to cooperation between,

01:56 - 35.798 the municipalities and the county,

01:56 - 42.104 the municipalities are willing to, cooperate with the county in areas

01:56 - 46.875 where we can do so, so long as, the municipalities

01:56 - 51.838 retain their jurisdiction over their local, Department of Health.

01:56 - 54.550 We're, encouraged to do so.

01:56 - 58.878 Encouraged to cooperate, between governments, by statute,

01:56 - 04.126 and the record demonstrates that, lower Chichester effort, to do so.

01:57 - 06.962 So, we are willing to do so going forward as well.

01:57 - 08.364 I do have one question.

01:57 - 10.232 How do you accomplish uniformity?

01:57 - 13.259 In procedure, in

01:57 - 16.138 licensing requirements and things of that nature?

01:57 - 19.441 The lack of uniformity is the statutory design.

01:57 - 22.602 Your honor, it seems that the General Assembly weighed

01:57 - 26.048 uniformity and determined that

01:57 - 29.242 local control of existing

01:57 - 35.891 departments of health and health officers was, was valuable

01:57 - 39.728 to the local communities, more valuable than uniformity.

01:57 - 43.689 As a practical matter, I would say that the inter-governmental cooperation

01:57 - 47.860 would, would supplement,

01:57 - 51.497 any lack of uniformity that's,

01:57 - 55.344 that's caused, by the design of the statute.

01:57 - 58.480 But it really is the, the will of the General Assembly

01:57 - 02.317 that understand, I just asked you, how do you accomplish that, though?

01:58 - 03.519 So basically you just said

01:58 - 07.556 there is a lack of uniformity in is this kind of dealt with as it.

01:58 - 07.757 Yeah.

01:58 - 11.093 One one's one, one borough is going to do

01:58 - 14.196 things somewhat differently than another township.

01:58 - 18.467 That's part of the statutory design and part of local control.

01:58 - 22.595 But all of the municipalities and the county can,

01:58 - 26.208 cooperate to, to assist each other.

01:58 - 29.469 That, too, is part of the design by the General Assembly.

01:58 - 32.981 Didn't the county Department of Health come into existence

01:58 - 35.984 because a lot of municipalities had no Department of Health, and

01:58 - 39.321 it was too much for the state to be doing on a regular basis?

01:58 - 43.125 And part of the lawsuit originated here because the county came in

01:58 - 44.293 and started sending letters

01:58 - 48.630 to the residents and started taking over, and things were in a mess.

01:58 - 51.767 Because of the confusion, I couldn't speak to the county's reasons

01:58 - 55.537 for its determination to establish the Department of Health.

01:58 - 01.443 But the record demonstrates here what you described, Your Honor, that the,

01:59 - 06.715 the the county, although knowing that that these municipalities had existing boards

01:59 - 09.976 of health and health officers, the county came in and,

01:59 - 13.989 supplanted their authority.

01:59 - 18.050 And that's, that's where this litigation, came from.

01:59 - 21.454 And, of course, that's inconsistent with the statutory design.

01:59 - 23.935 Thank you very much. Thank you, Your Honor.

01:59 - 33.375 I have a quick question.

01:59 - 38.847 Who gets to make the call administratively as to whether county exempt from DCH, D

01:59 - 43.819 or D dictates jurisdiction in this is Department of Health, your honor.

01:59 - 44.621 Respectfully,

01:59 - 47.680 I had thought about that before this, because there is no mechanism.

01:59 - 50.025 But wouldn't it be the Department of Health?

01:59 - 51.760 I would think it would be the state Department of Health.

01:59 - 53.929 So are they.

01:59 - 56.956 Do they need to be here or are they an indispensable party?

01:59 - 00.135 I don't know that they would be an indispensable party.

02:00 - 01.470 However, I would suggest

02:00 - 05.364 that there is a missing mechanism for an exemption to be determined.

02:00 - 08.677 Perhaps that would be through the Bureau of Hearings and Appeals.

02:00 - 11.938 But, Your Honor, you've pointed on something that I had thought about,

02:00 - 15.741 but there is no answer statutorily as to who would determine the exemption.

02:00 - 17.910 Admittedly, that is missing.

02:00 - 21.857 Your Honor, I just wanted to touch upon some of the items

02:00 - 25.084 that were discussed, particularly whether cooperation would be possible.

02:00 - 26.562 In this instance.

02:00 - 30.132 We must be very mindful that this matter became an issue

02:00 - 33.726 because of the inspection of local, food establishments.

02:00 - 36.905 That was the main issue that started all of this problem.

02:00 - 40.066 The confusion, the dispute between either party.

02:00 - 44.146 But it cannot be that only certain avenues or aspects of health

02:00 - 47.950 are administered by one and not the other, and the application

02:00 - 51.978 will become readily apparent when there is something like a foodborne illness.

02:00 - 55.514 If someone were to, to develop something like hepatitis C,

02:00 - 58.894 and then the the local municipality decides

02:00 - 02.288 to inspect that restaurant and say that there was a problem with the restaurant,

02:01 - 06.134 now that the county health department needs to administer contact tracing

02:01 - 07.669 and make sure that there's not a widespread

02:01 - 11.430 hep C now, when do they stop administering the health law?

02:01 - 12.841 Because they are going to

02:01 - 15.844 now need to come back in and say that this restaurant is now clean and safe

02:01 - 19.114 and there's no longer hep C, you only have 16 seconds.

02:01 - 24.786 And I feel as far as for me, your biggest hurdle is going to be

02:01 - 28.714 that you do not file post-trial motions as a declaratory judgment.

02:01 - 32.218 And the reason that that's a huge hurdle is the permanent injunction

02:01 - 35.288 depends on the conclusion that the municipalities are exempt,

02:01 - 39.468 and you're going to appeal the declaratory judgment.

02:01 - 43.062 Respectfully, this was already quashed by this court.

02:01 - 46.766 So this was an issue that was already determined to be quashed.

02:01 - 48.877 So the motion was already presented.

02:01 - 51.904 This was already argued when when you say it was quashed,

02:01 - 55.917 are you saying that the court is allowing the appeal of both

02:01 - 58.353 the declaratory judgment and the injunction?

02:01 - 01.547 That was my understanding of the order that was issued.

02:02 - 03.225 Okay.

02:02 - 07.953 So I guess that the question is to what the effect of our order was.

02:02 - 11.667 Well, even though even the not the necessity

02:02 - 14.694 to file the post-trial motions still would have predated

02:02 - 19.107 any order that we had when you needed to file post-trial motion.

02:02 - 20.742 And that would have been with the trial court.

02:02 - 23.111 But we can talk about that amongst ourselves.

02:02 - 26.138 But that's a concern for me on your behalf.

02:02 - 28.517 I understand, Your Honor, and I see that my time is up.

02:02 - 33.322 If, in fact, I guess to follow up on that, if the court would determine

02:02 - 37.950 that our order that had been issued only went to the injunction

02:02 - 43.031 and not to the declaratory judgment, do you have a response

02:02 - 48.494 as to how you would be able to prevail before us on on the injunction?

02:02 - 52.141 Yes, Your Honor,

02:02 - 55.167 I believe that if there is,

02:02 - 58.246 if we are only limited to whether there's an injunction,

02:02 - 01.273 there still is the question of whether there's a clear right to relief

02:03 - 04.343 and whether the harm would outweigh the benefit.

02:03 - 08.214 The the clear right to relief is whether the exemption applies.

02:03 - 10.926 And I would argue that it does not in this case.

02:03 - 15.097 But then the benefit is clearly in favor of promoting the health

02:03 - 18.124 and welfare of the entirety of the state and the county individually.

02:03 - 19.001 That is clear.

02:03 - 23.195 In the in 2002, the legislative findings of act 315.

02:03 - 27.633 I just want to follow up, make sure that we're clear, because my understanding,

02:03 - 31.337 when the appellate filed the motion to quash

02:03 - 36.818 that, the appellant recognized appellants, recognized

02:03 - 40.212 that they had no right to appeal because there was no final order

02:03 - 43.916 from the declaratory judgment, because there were no post-trial motions

02:03 - 47.920 and therefore, appellants admitted to this court

02:03 - 51.032 that because it was interlocutory, they couldn't appeal.

02:03 - 53.735 But you didn't want the whole appeal quashed.

02:03 - 56.762 Therefore, you said that you were only appealing

02:03 - 02.668 from the permanent injunction from which you could file an appeal

02:04 - 06.314 under rule 311.

02:04 - 09.785 If I understand, Your Honor, I would respectfully submit

02:04 - 12.354 that there was not a final order at issue.

02:04 - 14.289 There was only the the injunction

02:04 - 17.850 and that would that perhaps make sense as to the reason for the quash?

02:04 - 20.228 Okay. That's what makes you on the same page. Okay.

02:04 - 22.030 Thank you. Thank you.

02:04 - 25.024 So. I'm Daniel, Pontus.

02:04 - 27.769 This case involves an issue of first impression

02:04 - 30.863 regarding the use of administrative warrants to inspect homes,

02:04 - 34.876 and whether such use violates article one, section eight of the Pennsylvania.

02:04 - 38.537 Constitution, titled security from Searches and Seizures

02:04 - 42.417 before this court are the cross appeals of the Borough of Potsdam

02:04 - 46.488 and its Director of Licensing and Inspections, and several tenants

02:04 - 49.624 along with their landlords from the January 24th,

02:04 - 53.385 2024 order of the Court of Common Pleas of Montgomery County.

02:04 - 55.564 Previously, this

02:04 - 59.434 court vacated a May 10th, 2019 order of the trial court

02:04 - 02.461 granting judgment on the pleadings in favor of the borough,

02:05 - 06.174 as well as three separate discovery orders, and remanded

02:05 - 09.368 the matter the matter to the trial court for further proceedings.

02:05 - 12.447 On remand, the parties completed discovery

02:05 - 15.474 and then filed competing motions for summary judgment.

02:05 - 19.321 The trial court ordered that, as a subject of this current appeal,

02:05 - 22.357 denied the borough's motion for summary judgment tonight.

02:05 - 25.985 Tenant's motion for the summary judgment, to the extent that it saw a declaration

02:05 - 30.289 that the borough's inspection ordinances were facially unconstitutional

02:05 - 34.302 because warrants were issued based upon less than individualized

02:05 - 37.329 probable cause of code violations.

02:05 - 41.233 Granted tenant's request that the borough's application of its ordinances

02:05 - 44.646 be enjoined as unconstitutional under article one, section

02:05 - 48.450 eight of the Pennsylvania Constitution, and joined the borough from conducting

02:05 - 53.312 non consensual suspicion searches to inspect for housing code violations

02:05 - 57.316 unless and until the borough enacts amendments to its ordinances

02:05 - 00.128 to provide for a written notice of seven days

02:06 - 02.721 in advance of any administrative search warrant.

02:06 - 04.734 On appeal,

02:06 - 05.834 the tenants argued that

02:06 - 09.871 the trial court aired as a matter of law in ruling that the individualized

02:06 - 14.700 probable cause is not needed for search warrants under article one, section eight.

02:06 - 17.812 The borough argues that the administrative warrants

02:06 - 21.983 to conduct rental home inspections have been acknowledged in Pennsylvania,

02:06 - 26.721 and do not require individualized probable cause as such.

02:06 - 28.189 It is the borough's position

02:06 - 31.984 that the protections of article one, section eight, do not apply.

02:06 - 36.589 Further, the borough maintains that any expectation of privacy

02:06 - 39.825 is balanced by its rental inspection ordinances

02:06 - 43.062 and the health, welfare and safety of its residents.

02:06 - 45.774 Let's go to that argument now.

02:06 - 47.275 Can't please the court.

02:06 - 50.779 Rob Pakula and my co-counsel, Jeffrey Redfern,

02:06 - 54.573 on behalf of the appellants, who are also here today in court.

02:06 - 59.154 When this court remanded this case four years ago,

02:06 - 03.515 it asked for a factual record so that it could review how Pottstown

02:07 - 06.518 operates rental inspections in the real world.

02:07 - 09.831 That record now shows that these inspections

02:07 - 13.058 are the most intrusive government searches imaginable.

02:07 - 16.237 Inspectors view tenants medical equipment,

02:07 - 19.565 searched children's rooms without the consent of their parents.

02:07 - 22.644 They view nude photos of tenants

02:07 - 26.438 and learn about their sexual practices and gender expression.

02:07 - 30.976 Each one is an objective violation of personal privacy.

02:07 - 34.856 This court also wanted to know whether this program

02:07 - 38.751 created a constitutional gap that law enforcement failed.

02:07 - 40.228 It did.

02:07 - 43.489 Police have full access to the inspection database

02:07 - 47.660 and instruct inspectors to call police on their cell phones

02:07 - 51.730 if they see what they subjectively think is criminal behavior.

02:07 - 54.809 Abolishing administrative search warrants

02:07 - 58.771 for home searches does not mean abolishing housing codes,

02:07 - 03.175 tenant complaints systems, or even periodic rental inspections.

02:08 - 07.813 It simply means that when a tenant says no to a home inspection,

02:08 - 11.526 the government has to come back with a search warrant

02:08 - 14.920 supported by individualized probable cause.

02:08 - 18.066 The Edmunds factors

02:08 - 22.504 require that this court take an independent look at article one,

02:08 - 26.441 section eight, and why the outcome here should be different

02:08 - 31.270 than the outcome in the United States Supreme Court case of Kamara.

02:08 - 34.015 We start with the text.

02:08 - 36.451 When the text was changed

02:08 - 40.579 at the 1790 revision from 1776.

02:08 - 43.792 The warrant requirement became stronger.

02:08 - 47.152 The word art was replaced with the word shell.

02:08 - 52.300 And just in 2020, the Pennsylvania Supreme Court

02:08 - 56.805 in the Alexander case took a close reading of the textual difference

02:08 - 59.798 between article one, section eight, and the Fourth Amendment.

02:09 - 04.012 The key difference that Judge Todd Scholarship addressed

02:09 - 09.308 was the word possessions, which replaces the word effects in the Fourth Amendment.

02:09 - 12.778 That is outcome determinative in this case,

02:09 - 17.516 because effects means intimate things about one's person.

02:09 - 22.764 That is precisely what inspectors view when they conduct non consensual searches.

02:09 - 23.765 Here.

02:09 - 28.694 In addition to that textual difference, we know that the historical record

02:09 - 32.540 and case laws interpreting that historical record show

02:09 - 36.344 that there is a much greater concern for home privacy

02:09 - 39.371 in Pennsylvania stemming from the founding forward.

02:09 - 44.243 Critically, for this case that included civil matters from day one,

02:09 - 46.154 the kind of general warrants

02:09 - 49.924 and writs of assistance that led to article one, section

02:09 - 54.787 eight were for civil matters collecting excise taxes on imports,

02:09 - 00.259 searching wall to wall for, essentially what was tax collection.

02:10 - 04.205 That civil context was important for understanding this,

02:10 - 08.000 which is a case of first impression about civil searches

02:10 - 11.770 and whether a true probable cause standard is required.

02:10 - 13.314 This is and as applied

02:10 - 17.385 challenge, it's both a facial and as applied challenge, Your Honor.

02:10 - 21.046 And that's what the West Plains appealed before this court address,

02:10 - 23.124 which was on its face.

02:10 - 26.027 This ordinance allows,

02:10 - 29.030 search warrants without probable cause.

02:10 - 32.257 There any facts that need to be found or are there

02:10 - 36.929 any issues of material fact with regard to the intrusiveness or.

02:10 - 39.508 No. Your honor,

02:10 - 44.312 judge has found that these searches are incredibly invasive, and the record

02:10 - 48.941 speaks with one voice about that, that it spans everything from,

02:10 - 54.889 religious material, political material, the most deeply personal things.

02:10 - 57.826 The invasiveness was not disputed.

02:10 - 00.461 The, the finding on

02:11 - 04.389 the government side that the, search warrants could

02:11 - 08.469 or could be justified without probable cause, as a health

02:11 - 12.030 and safety measure was completely refuted by the record.

02:11 - 16.144 Thousands of inspections never led to a home being condemned,

02:11 - 19.171 never led to tenants having to lead their home,

02:11 - 24.209 and in most cases, an expedited repair was never even required,

02:11 - 27.188 and indeed, the chief inspector testified

02:11 - 31.292 that the criteria that inspectors use wouldn't even,

02:11 - 35.320 determine an uninhabitable structure with their own system.

02:11 - 40.268 So the factual record here really speaks with one voice in terms of the article

02:11 - 45.173 one, section eight, balancing the government's interest is very low

02:11 - 49.568 and indeed can be addressed in most cases through consensual searches

02:11 - 55.207 or for a search warrant that has probable cause of exterior violations.

02:11 - 56.986 But on the other

02:11 - 00.788 hand, I would turn to the language from the Pennsylvania Supreme.

02:12 - 05.517 Court's decision in Bryan in 1994, which discussed home privacy.

02:12 - 08.763 And I quote, upon closing the door of one's home

02:12 - 12.758 to the outside world, a person may legitimately expect

02:12 - 16.628 the highest degree of privacy known to our society.

02:12 - 18.640 That is a very difficult

02:12 - 22.467 standard for the government to overcome when they enter someone's home.

02:12 - 26.138 And I think the critical difference here is that this involves renters.

02:12 - 29.984 A system like this of warrants without probable cause to search

02:12 - 33.879 wall to wall would never be enacted against homeowners.

02:12 - 38.526 In effect, treating the property rights of renters as a diminished

02:12 - 42.220 or second class category of property rights, which they are not.

02:12 - 45.657 People living and raising their families in a rental home

02:12 - 49.227 have every right to close that door that a homeowner does.

02:12 - 53.408 And yet, with these manufactured administrative warrants

02:12 - 56.535 stemming from camera, that's exactly what happens.

02:12 - 00.706 And the case law goes to this as well.

02:13 - 03.942 Commonwealth versus white in 95.

02:13 - 08.180 So the under Pennsylvania balance, an individual's privacy interests

02:13 - 12.284 are given greater deference than under federal law.

02:13 - 15.430 So this case is dealing with a weighted scale.

02:13 - 20.568 The privacy has already been, interpreted to be the most important factor

02:13 - 24.505 when analyzing the search warrants and the inevitable

02:13 - 27.532 outcome of taking away probable cause.

02:13 - 31.570 When you take away probable cause from the premise of a search.

02:13 - 36.308 Law enforcement can and does as we know here, come in.

02:13 - 40.345 Police have a policy of being essentially

02:13 - 46.294 a shadow police force accompanying the inspectors with both access

02:13 - 50.789 to the results of the inspection and direct dial to the inspectors.

02:13 - 51.499 It's a trial court.

02:13 - 52.401 Have the authority

02:13 - 56.361 to require that there be an amendment to the inspection ordinance.

02:13 - 58.840 It did, it did, Your Honor.

02:13 - 03.878 Because every time there is a constitutional violation,

02:14 - 06.247 the court has some injunctive role.

02:14 - 09.741 And addressing it so that it doesn't happen going forward.

02:14 - 16.557 Now, the contours of that order this court can amend, could throw out

02:14 - 20.995 and start from scratch that this court has carte blanche to address that.

02:14 - 26.434 But this court, too, has wide discretion, as it did in William Penn School.

02:14 - 30.929 District, for example, having a ruling where the constitutional issue

02:14 - 35.467 was the predicate for changes that had to be made statewide.

02:14 - 40.014 So I think that both the judge has had the ability to craft an injunction

02:14 - 43.175 that address the constitutional issue, as does this court.

02:14 - 45.053 But his decision is a little confusing.

02:14 - 50.158 I can't tell whether at one point he said it was as applied, unconstitutional.

02:14 - 54.595 And another point, he's saying it's, facially unconstitutional.

02:14 - 57.231 And then you know, facial unconstitutional.

02:14 - 00.358 You don't look at the facts, but everything was based on the facts.

02:15 - 05.430 Well, Your Honor, in the first, opinion in this case,

02:15 - 10.268 which was on page 90 of the record, it's a

02:15 - 13.981 we agree with tenets that the trial court should have a full record

02:15 - 19.244 on which to rule regarding both the facial and as applied challenges.

02:15 - 23.257 And that was part of the briefing the last go around where cases

02:15 - 27.385 like Los Angeles versus Patel, which was a facial challenge,

02:15 - 32.033 articulated the test, in the search warrant context as

02:15 - 36.828 what are the harms that can flow from the the search warrant at issue?

02:15 - 38.773 But I agree.

02:15 - 42.643 And that was with your,

02:15 - 46.414 confusion about the facial as applied distinction in the order.

02:15 - 48.349 It wasn't entirely clear.

02:15 - 52.520 And indeed, in our concise statement, we pointed out that,

02:15 - 56.381 it was incorrect to have, a ruling

02:15 - 01.720 combining the facial and as applied relief the way the judge did.

02:16 - 04.499 This court can fix that now

02:16 - 08.126 with the very simple ruling, as I mentioned in the introduction.

02:16 - 10.605 This is a very narrow challenge.

02:16 - 15.042 This only goes to one subsection of the code, which is on page

02:16 - 20.505 242 of the record that addresses administrative warrants may be issued.

02:16 - 27.212 That is the only substantive challenge the tenants here are making to the code.

02:16 - 32.050 So this is a narrow challenge and requiring probable cause

02:16 - 36.931 from the outset, I think will go much further in addressing

02:16 - 41.560 the kind of procedural relief that judge has put in that order.

02:16 - 46.865 You told me before that you were challenging both as applied and facially.

02:16 - 48.442 Yes, Your Honor.

02:16 - 50.611 What is it you want this court to do?

02:16 - 54.615 I mean, would we remain and direct a trial court to take some action?

02:16 - 57.642 You want us to rule? In what manner?

02:16 - 01.122 I rule in the plenary

02:17 - 05.383 capacity of on this same record, a declaration

02:17 - 09.197 that that provision is unconstitutional

02:17 - 13.358 because it does not provide for individualized probable cause.

02:17 - 16.304 That is what the records supported below.

02:17 - 18.806 And that's what the record supports here.

02:17 - 21.967 And that is what is required to make this,

02:17 - 25.370 departure from, Camara.

02:17 - 31.843 At the time Camara was decided in 1967, there was no evidence in the record

02:17 - 36.848 about how tenant privacy was or could be violated.

02:17 - 40.561 This is the record, and this is the first court in the country

02:17 - 44.623 to examine a record that addresses that tenant privacy,

02:17 - 48.936 and shows the cameras taking away of probable cause

02:17 - 52.697 from the equation has incredibly harmful results.

02:17 - 56.043 As a consequence for personal privacy.

02:17 - 01.716 Edmonds looks at the public policy of why a change is needed, and that is precisely

02:18 - 06.745 why a change is needed here, because we see the consequences that flow.

02:18 - 08.656 And it's not just law enforcement.

02:18 - 14.295 Things like debt collection get added on where, a landlord can't get their license

02:18 - 18.089 because, of, of back taxes that they owe.

02:18 - 22.803 When you take out probable cause, it becomes a catch all for government

02:18 - 26.941 intervention in inappropriate ways that both violate

02:18 - 32.013 the personal privacy of the tenants and also make them less secure.

02:18 - 35.240 In their homes, take away their agency.

02:18 - 39.353 It creates psychological damage when somebody has control over

02:18 - 43.615 the threshold of the door to their own home is taken away by the government.

02:18 - 47.962 And that's what this record, both historically and in terms

02:18 - 51.790 of how these warrants operate in the real world, works.

02:18 - 57.862 So the tenants respectfully request that this court enter a declaration,

02:18 - 02.200 rejecting camera and the administrative search warrant provision here.

02:19 - 04.746 Thank you.

02:19 - 07.281 See? My time is up. Yes, you.

02:19 - 10.308 You nailed that pretty well.

02:19 - 15.289 And now you are across appellant as well.

02:19 - 17.591 So would you like to reserve rebuttal time?

02:19 - 18.460 Two minutes, Your Honor.

02:19 - 21.486 Two minutes. Okay.

02:19 - 23.264 So good morning. So yes.

02:19 - 25.700 Good morning. Members of the esteemed bond panel.

02:19 - 30.271 My name is Cheryl Brown, and I represent both Pottstown and the inspector

02:19 - 33.765 Keith Place, who's also been named as, defendant in this matter.

02:19 - 35.876 You know,

02:19 - 40.705 upon reading the designated appellant's brief and listening to what he just said,

02:19 - 45.343 you may come away with the determination that these rental inspection programs

02:19 - 46.321 are for the purpose

02:19 - 50.348 of determining that homes are inhabitable and people shouldn't live there.

02:19 - 53.060 That is so far from the truth.

02:19 - 57.255 What is happening all across the state with rental inspection programs

02:19 - 00.759 is that it's for the health, welfare and safety

02:20 - 04.229 of the individuals who are tenants in these

02:20 - 08.566 properties, not owned by them, not controlled by them,

02:20 - 13.605 but who deserve to make sure they are in safe and safe habitable.

02:20 - 17.118 Not inhabitable, environments.

02:20 - 20.521 So pretty broad statement to give the government the right to walk

02:20 - 23.548 into your eventual unit, especially if you haven't complained,

02:20 - 26.527 if you have a complaint. Yes.

02:20 - 30.789 And in fact, the rental inspection program provides for complaints to be made.

02:20 - 34.402 And I think the judge said, if you do not have a complaint, if you do not.

02:20 - 36.737 Okay, I apologize for that.

02:20 - 38.839 But with that said, the record also contains

02:20 - 42.076 various complaints made by tenants to ensure that these aren't.

02:20 - 44.245 There are other legal remedies without the need

02:20 - 47.515 of these special enforcement officers that would allow tenants

02:20 - 53.111 to have grievances with landlords when there was issues with their property.

02:20 - 57.248 Well, you know, historically, this particular Commonwealth Court

02:20 - 02.053 has determined that properties that are owned by,

02:21 - 05.890 or properties that have tenants by non-owner,

02:21 - 11.229 and non owned units have a greater potential for,

02:21 - 15.867 problems with the units themselves, such as if there's electric problems, etc..

02:21 - 16.411 Right.

02:21 - 20.605 And my question is, aren't there already legal remedies that will allow like if

02:21 - 23.951 if a landlord is shutting off the electric, isn't there already

02:21 - 25.953 something a tenant can do in that regard?

02:21 - 29.957 Well, they can come if there's a program, they can come to the municipality,

02:21 - 33.561 such as in Pottstown, and they can complain and the license

02:21 - 36.588 and inspections can go to that property to inspect that.

02:21 - 41.469 But why are we waiting until there's an electrical problem?

02:21 - 42.903 There's no lights on in the unit.

02:21 - 44.472 There is no hot water in the unit.

02:21 - 46.240 There's no fire detectors in the unit.

02:21 - 47.775 There's no smoke detectors.

02:21 - 50.044 There's no batteries in the smoke detectors.

02:21 - 54.515 These are all issues that are addressed with the rental inspection program.

02:21 - 56.851 They're done on a bi annual basis.

02:21 - 00.445 So every other year it's not as if they're going in their monthly.

02:22 - 02.923 How do you know the electric is going to be turned off

02:22 - 07.085 if it's a bi annual I mean typically it's just going to happen overnight.

02:22 - 10.064 And I thought all these units had to be inspected

02:22 - 12.566 and you had to get a certification even before a tenant

02:22 - 15.269 went in there to make sure there's smoke detectors as well.

02:22 - 15.604 Yeah.

02:22 - 19.473 If there's a vacancy, then the unit has to be inspected

02:22 - 22.567 before a new tenant is permitted to move in.

02:22 - 28.182 But if a tenant is residing there, these are then on a bi annual basis.

02:22 - 32.577 So it's it's either or if if the tenant leaves

02:22 - 36.347 then it has to be re inspected before a new tenant comes in.

02:22 - 39.918 I mean, we've seen unfortunately too many times, and it just happened

02:22 - 43.764 a week or so ago of a 78 year old woman in South Philadelphia

02:22 - 46.791 who died in a row home fire because there were no smoke detectors.

02:22 - 49.827 So why is it that you just can't

02:22 - 52.540 attach these,

02:22 - 57.845 inspections with the ability for a landlord to either

02:22 - 02.373 renew a lease or to renew his or her licensing?

02:23 - 07.679 I mean, there's a way to do it without it seeming so random.

02:23 - 11.058 It's not random, but to the tenants it is.

02:23 - 15.186 Well, it but but the tenant and pursuant to town's ordinances,

02:23 - 20.467 first of all, the owner is required to provide the addendum

02:23 - 23.737 and a summary of the Pottstown rental inspection ordinances to the tenant.

02:23 - 25.039 So they are aware of this,

02:23 - 28.066 and we can't lose sight of the fact that while the ordinance

02:23 - 30.844 is an effort to ensure that the owner

02:23 - 34.005 maintains safe and habitable properties for these tenants,

02:23 - 37.484 it's also so the tenants aren't in fear

02:23 - 40.454 of coming forward and saying, hey Mr.

02:23 - 44.058 Landlord or miss landlord, my water heater is not working.

02:23 - 46.694 And then, in fear of getting evicted, they want to make sure

02:23 - 49.787 that these properties are habitable for these individuals.

02:23 - 53.558 So the program itself provides for that.

02:23 - 56.894 And when we talk about the randomness

02:23 - 59.807 again, this court historically

02:23 - 02.834 on a number of occasions, and I,

02:24 - 05.746 I know I've stated in my briefing

02:24 - 08.740 that this is not necessarily a novel issue.

02:24 - 12.043 Maybe upon the facts of this case, it's a novel issue,

02:24 - 15.546 but the Commonwealth Court, on a number of occasions,

02:24 - 18.826 has already looked at this issue of whether individualized

02:24 - 22.086 probable cause is necessary for these administrative warrants.

02:24 - 26.090 So, for example, in Commonwealth versus Tobin, 2003,

02:24 - 30.762 they were looking at whether or not

02:24 - 34.298 probable cause to issue an administrative warrant exists,

02:24 - 38.870 if reasonable legislative or administrative standards for conducting

02:24 - 43.083 an area inspection are satisfied with respect to a particular dwelling.

02:24 - 44.718 I'm sorry, is this case in your brief?

02:24 - 45.453 It is.

02:24 - 48.088 We're familiar with the case in your brief.

02:24 - 51.659 My question is, why does the element of surprise

02:24 - 53.794 have to be built into this ordinance?

02:24 - 55.262 It is not an element.

02:24 - 57.998 According to the finding of the judge below,

02:24 - 02.636 the ordinances do not contain a notice requirement for the owner or occupant

02:25 - 07.207 of a residence to be apprized of the date or time the affiant would appear.

02:25 - 11.245 Similarly, does not require that the owner occupant of a residence

02:25 - 14.314 be notified of the date and time of the execution of the warrant.

02:25 - 16.817 That's that's a surprise inspection.

02:25 - 17.786 It is not.

02:25 - 21.588 And the reason being, Your Honor, with all due respect, first of all,

02:25 - 23.590 with all due respect to the trial court judge,

02:25 - 26.851 I don't think he looked at the entirety of the record.

02:25 - 30.521 This notice issue, first of all, was not an issue

02:25 - 32.399 that was set forth in the complaint.

02:25 - 36.103 It was not an issue that was briefed in either of the summary judgment motions.

02:25 - 39.797 It's a and tenants are told when the inspection is going to take place.

02:25 - 44.469 That's what this as applied and what the record shows as applied

02:25 - 48.973 is that the owner of the property contacts

02:25 - 52.410 the tenant, and if the tenant does not agree to consent,

02:25 - 55.756 then they would request an administrative warrant.

02:25 - 57.448 And I believe in the record at.

02:25 - 00.861 I don't know the exact numbers.

02:26 - 05.265 There are evidences of tenants

02:26 - 10.504 who sent emails to the borough saying I would like an administrative warrant.

02:26 - 11.306 I'm sorry.

02:26 - 13.173 Could you answer my question?

02:26 - 15.042 I don't mean to be rude. That's okay.

02:26 - 16.610 Are they told.

02:26 - 19.680 Are they given notice of when the inspections will take place?

02:26 - 22.707 The tenant and the landlord, the.

02:26 - 25.652 The ordinance does not state that.

02:26 - 28.155 We must give the tenant notice.

02:26 - 31.725 The ordinance provides that the inspections will take place

02:26 - 33.327 within ten days after.

02:26 - 36.354 So they're given a time frame, not a time.

02:26 - 37.265 I'm sorry.

02:26 - 39.099 So you're saying they're given a time frame?

02:26 - 41.535 Not a time. Correct. Okay. Thank you. Correct.

02:26 - 46.073 And then in fact, what has happened as applied and what the record has showed,

02:26 - 49.333 what the warrants that have been attached and the emails of the tenants,

02:26 - 53.347 they would come forward and say we would prefer to administrative warrant.

02:26 - 55.149 We don't want you coming in.

02:26 - 56.407 We don't consent.

02:26 - 00.444 Then what happens is the,

02:27 - 04.482 inspector goes to the magistrate judge

02:27 - 09.429 applies for the administrative warrant, and that is provided.

02:27 - 11.965 Now, I know the trial court, again, was concerned

02:27 - 15.059 that this administrative warrant was simply just a rubber stamping.

02:27 - 18.830 But again, I'm not going to the cases that are cited,

02:27 - 24.101 but one of the things is whether there is reasonable administrative standards.

02:27 - 28.105 And I know a concern of this court previously is what is the criteria

02:27 - 30.951 for these administrative warrants?

02:27 - 34.454 Well, what this Commonwealth Court has previously held

02:27 - 39.083 is as long as there are administrative standards, the criteria is met,

02:27 - 42.253 not just any administrative standards reasonable.

02:27 - 44.698 The touchstone is reasonableness, right?

02:27 - 45.732 Yes. Right.

02:27 - 48.468 And here what the record reflects

02:27 - 52.029 is that not only do we have the ordinance, not only is it a requirement

02:27 - 55.967 that the landlord provide a summary of that ordinance to the tenant,

02:27 - 59.947 but we also know that there is a standard

02:27 - 02.974 operating procedure from the license inspections.

02:28 - 07.078 There is a rental inspection checklist from license inspections.

02:28 - 12.159 There is a, residential

02:28 - 16.187 transfer and an inspection check, notification as well.

02:28 - 18.699 The police have to be notified as well.

02:28 - 19.167 I'm sorry.

02:28 - 20.901 And the police have to be notified as well.

02:28 - 23.604 No, I don't know where this whole policing comes from. Okay.

02:28 - 25.005 That's an interesting.

02:28 - 26.673 No, no, but that's an interesting point,

02:28 - 30.944 because this was supposed to be at the summary judgment phase.

02:28 - 34.047 The trial court opinion didn't apply a summary judgment standard.

02:28 - 37.208 I don't think the words summary judgment were even in the trial court opinion.

02:28 - 41.312 And the briefs are giving us two different set of facts.

02:28 - 44.124 So what are your thoughts about that?

02:28 - 47.351 Well, what I will say is and this is where, you know,

02:28 - 50.855 if it's very difficult sometimes to hear some of these things

02:28 - 55.793 as set forth in the brief where I know the appellant claimed at one point

02:28 - 59.230 that the police were, quote, regularly involved in these inspect.

02:28 - 01.308 But I'm not asking you to dispute the facts.

02:29 - 02.309 I'm asking you to like,

02:29 - 06.904 respond to me on the notion that we're at the summary judgment phase of

02:29 - 09.716 an appeal right from the trial court.

02:29 - 12.552 Was considering a summary judgment requests.

02:29 - 14.054 Yeah,

02:29 - 17.181 I think Judge Coffey previously noted there's a little,

02:29 - 21.395 kind of contradictions within that opinion,

02:29 - 25.465 like the as applied in to the application and the face another one.

02:29 - 26.000 Right.

02:29 - 29.694 Because in essence, what he did was, in his order

02:29 - 33.807 said that the facial challenge of, of

02:29 - 37.802 is denied, that the Pottstown summary judgment motion is denied.

02:29 - 43.383 He denied the as applied action but then granted declaratory relief.

02:29 - 47.712 But when you read his actual opinion, he makes a determination that

02:29 - 50.991 the ordinance is facially valid,

02:29 - 53.627 which then begs the question, if it's facially valid,

02:29 - 57.164 then why is it that you're saying that we have to amend our ordinance?

02:29 - 58.498 It's just it's contradict.

02:29 - 01.702 Wasn't he saying, though, that it's facially valid, but there's no

02:30 - 06.430 procedural steps necessary, procedural steps in place to preserve privacy?

02:30 - 08.408 Wasn't that where he was going?

02:30 - 11.902 Well, I think what he when he talked about the facial valid,

02:30 - 14.047 he he simply made a

02:30 - 18.809 determination really more upon the probable cause, aspect of the

02:30 - 22.680 that council's claiming we require individualized probable cause.

02:30 - 27.885 It again, I will submit I think it was very confusing.

02:30 - 31.689 The way it was kind of twist and turned a little bit

02:30 - 36.027 when he talked about the facial and then the applied.

02:30 - 39.463 And when we talk about,

02:30 - 43.276 the fact that he did and Judge.

02:30 - 47.805 Coffey had commented that he requested amendments, to the ordinance.

02:30 - 51.442 One of the things that Pottstown asserts as well is that

02:30 - 55.389 certainly a trial court can look at something and say, hey,

02:30 - 56.690 does this violate,

02:30 - 59.717 in this case, the Pennsylvania Constitution, article one, section eight.

02:31 - 04.364 But what it can't do is go beyond that to create proactive actions

02:31 - 09.569 on behalf of the Mississippi city and say unless and until you add

02:31 - 13.330 this into your ordinance, which I've deemed to be facially valid,

02:31 - 17.444 then you can no longer do any of these inspections

02:31 - 22.440 or administrative warrants because that is that is legislating from the bench.

02:31 - 26.310 It is taking away the the powers of the Mississippi County to do that.

02:31 - 29.523 And in this particular case, you know,

02:31 - 32.550 he's requiring these notice provisions,

02:31 - 37.164 one of which says you have to give them notice seven days before you execute

02:31 - 40.367 on the warrant, the administrative warrants in Pennsylvania.

02:31 - 41.601 And I'll grant you,

02:31 - 46.339 it's based upon a criminal form that the magistrate judges use.

02:31 - 47.175 Okay.

02:31 - 50.334 It requires that those have to be served within 48 hours.

02:31 - 53.346 So how is it that the judge can

02:31 - 56.373 legislate as to what should be in an ordinance,

02:31 - 59.553 which should be on behalf of the municipality?

02:31 - 02.980 And in fact, in this particular case is legislating something

02:32 - 06.550 that the rules don't permit before your time runs out.

02:32 - 08.462 What would you like us to do in?

02:32 - 10.754 Do you believe that a remand is appropriate?

02:32 - 14.501 You know, it's an interesting question, Your Honor.

02:32 - 20.331 I've been I've been toying with this because in one sense, with the issue of

02:32 - 23.868 notice, I again and I asserted

02:32 - 27.214 it has not been it was not briefed.

02:32 - 31.151 And I do believe the record is replete with actually areas

02:32 - 34.512 where notice as applied was provided.

02:32 - 39.416 So in that regard, should there be a remand to further address that issue?

02:32 - 40.861 Possibly.

02:32 - 44.164 But I do believe that there's sufficient evidence of the record

02:32 - 45.665 to show that there was.

02:32 - 50.270 If you're going to look at judge, has his opinion and say, okay,

02:32 - 51.505 we do need notice,

02:32 - 54.574 I think there's sufficient on the record that you can look at that.

02:32 - 57.601 I mean, even Mister Canberra, I'm one of the landlords,

02:32 - 01.214 testified, one questioned, you know,

02:33 - 04.317 what do you do when you get these requests for inspections?

02:33 - 08.179 I contact the tenant, and then I either call them or go see them.

02:33 - 11.091 And then I explain to them their rights.

02:33 - 14.761 And at that point, if they want to do an administrative search,

02:33 - 19.089 I have a form that I provide to them, and they provide that to them as a penalty.

02:33 - 20.801 There's your

02:33 - 24.161 evidence of your notice as applied is happening.

02:33 - 28.608 And in fact, as I noted, while the ordinance speaks to the owner,

02:33 - 32.145 because we're trying to ensure the owners keep these premises

02:33 - 35.582 habitable, certainly there's a privacy interest.

02:33 - 39.043 We certainly understand that, and that has to be undertaken.

02:33 - 42.713 But as applied,

02:33 - 45.859 what's happening is the tenants are getting notice.

02:33 - 47.527 The tenants are not only getting notice,

02:33 - 50.921 but they're writing to the borough saying, we want an administrative warrant,

02:33 - 54.000 and we're getting in that administrative warrant.

02:33 - 54.969 In fact, I think Mr.

02:33 - 58.104 Cameron, the landlord even said, yeah, well,

02:33 - 00.774 I've discussed dates with them, and if that date didn't work,

02:34 - 03.910 they were amenable to providing a different date that the record

02:34 - 07.104 is there, to to show that these things

02:34 - 11.575 have taken place, again, on an as applied challenge.

02:34 - 15.212 I know that you're way over your time, but I just have one question for you.

02:34 - 18.325 So what happens if, after the inspection,

02:34 - 23.196 or after an inspection, the, location is deemed inhabitable?

02:34 - 25.498 What happens to the tenants at that point?

02:34 - 28.435 I will tell you, your honor, I don't think there's been a situation

02:34 - 29.536 where that's occurred.

02:34 - 32.172 Not during the course of this rental inspection program.

02:34 - 34.874 What? What happened? What what's next?

02:34 - 40.547 Well, I was zoom as in, what happens generally is that if there's areas

02:34 - 44.050 of the inspection that fail, that they are provided a sufficient,

02:34 - 49.022 I think, 30 days in order to correct those provisions deemed inhabitable.

02:34 - 51.891 So they can't stay because the violations are so egregious.

02:34 - 54.995 What happens, your honor, I unfortunately can't respond

02:34 - 58.265 because it has not happened because this program is working. It's

02:34 - 02.035 keeping these these, apartments,

02:35 - 05.872 units, homes safe and sound for the tenants.

02:35 - 07.841 And the purpose is not to condemn.

02:35 - 09.576 We don't want to kick people out.

02:35 - 11.144 We want to make sure they're safe.

02:35 - 13.280 We want to make sure they have a home.

02:35 - 16.307 And the other thing I want to mention is,

02:35 - 19.019 do you do that, please, in your rebuttal?

02:35 - 19.819 Yes. I'm sorry.

02:35 - 20.721 Could you do that, please?

02:35 - 23.323 In your rebuttal, you're over your time. Sure.

02:35 - 25.358 I'm sorry. I was looking here and I see three minutes.

02:35 - 30.130 So three minutes over, three minutes over I apologize, that's okay.

02:35 - 31.154 Thank you.

02:35 - 36.837 At first,

02:35 - 40.798 I'd like to address the issue, tenant fear,

02:35 - 46.270 that there would somehow be, an intimidation factor.

02:35 - 50.550 We are standing here today in Philadelphia, which has adopted

02:35 - 54.678 in its municipal ordinance, an anti retaliation provision

02:35 - 57.657 to address the precisely the kind of situation

02:35 - 01.151 where a tenant might not feel comfortable recording something.

02:36 - 04.264 Interestingly, Pottstown has not adopted

02:36 - 07.324 a similar anti retaliation provision.

02:36 - 10.937 That is the most obvious thing in a local government

02:36 - 14.798 toolkit to address that kind of landlord tenant relationship.

02:36 - 17.310 And Pottstown has not done that.

02:36 - 21.772 Instead, doing wall to wall forced non consensual inspections.

02:36 - 25.209 It's also odd to me that don't tenants have to give

02:36 - 27.921 a certain amount of time

02:36 - 31.682 to tenant landlords have to give certain amount of time to tenants, even to go in

02:36 - 38.264 and like give a tour of the home or anything else that, that needs to be done.

02:36 - 40.066 But here it seems like with the warrant

02:36 - 43.994 and the tenant didn't do anything wrong there, none of that is provided.

02:36 - 47.765 Well, that's true, Your Honor, and I think it goes to the different

02:36 - 48.975 in relationship.

02:36 - 54.180 As we see in this record, a responsible landlord is making arrangements

02:36 - 56.983 with tenants to have a leaky faucet fix

02:36 - 00.411 to check on something that they have mutually agreed to.

02:37 - 05.082 That is a far cry from a wall to wall suspicion less inspection.

02:37 - 09.195 And I think that when the borough throughout the record likened

02:37 - 13.690 the landlord's entry to the government's entry, they're just completely different.

02:37 - 18.104 And the biggest difference, of course, is that it takes tenants out of the driver's

02:37 - 21.131 seat with their autonomy of who they want in their home.

02:37 - 22.543 And in

02:37 - 25.678 terms of law enforcement, this case was never arguing

02:37 - 28.772 that this was a surreptitious law enforcement program.

02:37 - 32.009 This case said that you don't have probable cause.

02:37 - 36.022 And when you take probable cause away, law enforcement can.

02:37 - 39.793 And as we see in the record, will come in with that,

02:37 - 43.787 entry way to do surreptitious law enforcement.

02:37 - 48.992 So that is a consequence of the invasiveness, not a pretext for it.

02:37 - 50.170 I would inject that.

02:37 - 54.674 I think maybe the standard is the same reasonableness, the period

02:37 - 59.903 for a landlord to come into a unit has to be reasonable, like 24 hours.

02:38 - 04.951 But the government coming in, it's a whole different measure of reasonableness.

02:38 - 06.686 Would you agree with that?

02:38 - 07.787 I would, your honor.

02:38 - 11.191 Private versus government entry is a different standard. Yes.

02:38 - 16.696 And I think that that would go to the warrant hearing, too.

02:38 - 19.866 I mean, that the, the magistrate actually

02:38 - 22.993 issuing the search warrant would take that into account.

02:38 - 27.040 And I think that ultimately, that is what judge has was thinking with

02:38 - 31.911 this was that it would be an opportunity for the tenant to have more of a say,

02:38 - 35.472 more of an understanding and more control over that entry.

02:38 - 39.486 I'm sorry, do you think that,

02:38 - 44.081 the judge was able to sue, respond to create those procedures?

02:38 - 46.126 I do,

02:38 - 50.220 Your Honor, because if we look at a case like League of Women Voters,

02:38 - 53.333 just because a constitutional remedy,

02:38 - 58.071 didn't exist at a prior time or wasn't specifically

02:38 - 01.674 what the parties had carved out, it is within the injunctive

02:39 - 05.202 power of the court to create a constitution or remedy.

02:39 - 10.340 That said, I do think that if this court makes a much simpler declaration

02:39 - 14.354 rejecting camera and saying that individualized probable

02:39 - 19.125 cause is necessary, that it would greatly simplify

02:39 - 24.121 the kind of more robust injunction that we saw below the camera.

02:39 - 24.732 Sorry.

02:39 - 25.733 Oh, I'm sorry. Cameras.

02:39 - 28.759 The United States Supreme Court opinion.

02:39 - 29.937 Yes. Your honor.

02:39 - 33.172 And under Edmonds, this is the opportunity

02:39 - 37.710 now with the record that this court requested, to reject that case

02:39 - 41.972 because of the consequences to personal privacy, which Pennsylvania holds.

02:39 - 46.119 So we would be saying that, it violates our Pennsylvania Constitution,

02:39 - 49.355 even though it may not have violated the federal constitution.

02:39 - 50.390 That's right, Your Honor.

02:39 - 52.292 And that's why there was no independent.

02:39 - 55.319 Fourth Amendment claim here, solely article one, section eight.

02:39 - 59.189 If you had a choice between throwing out the ordinance,

02:39 - 02.726 having it declared invalid, or rewriting it,

02:40 - 05.572 what's your choice?

02:40 - 09.099 The choice here would be to simply add

02:40 - 14.605 three words by individualized probable cause next to the warrant,

02:40 - 18.609 the whole rest of the administrative search

02:40 - 22.689 provisions would remain untouched.

02:40 - 28.628 This is for a subset within a subset of renters who do not voluntarily agree to.

02:40 - 29.829 And inspection.

02:40 - 34.658 And what level of probable cause is needed to overcome it when they shut that door?

02:40 - 36.336 I'm sorry. You go ahead.

02:40 - 40.330 Granting individualized probable cause of what?

02:40 - 44.134 A crime being committed or a code violation.

02:40 - 46.846 Or something else.

02:40 - 50.383 It would be a code violation going to health and safety,

02:40 - 54.111 which is the pretext for this ordinance to begin with.

02:40 - 57.624 And we do see examples in the case law of what

02:40 - 00.927 that probable cause on a warrant application would look like.

02:41 - 06.165 We cited Qom versus Toluca, for example, where you had garbage piled up outside.

02:41 - 10.961 There was a window visible from the street where you saw graffiti inside.

02:41 - 14.407 Probable causes, not unaccomplished, searchable.

02:41 - 16.943 And this administrative context.

02:41 - 20.647 And for true problem properties, there would be probable cause to go

02:41 - 21.738 get that search warrant.

02:41 - 23.484 And I was just

02:41 - 28.354 I was just going to note that the statute actually says that, if there is refuse,

02:41 - 33.226 I suppose that they may apply for an administrative warrant.

02:41 - 34.293 So what?

02:41 - 35.428 The level that's required

02:41 - 38.588 for the administrative warrant is not the level that you're seeking.

02:41 - 39.133 That's right.

02:41 - 41.868 So you would be seeking a search warrant.

02:41 - 43.269 That's right.

02:41 - 46.296 And as opposing counsel pointed out,

02:41 - 49.833 these warrants are already functioning under the criminal rubric,

02:41 - 53.813 with within the criminal rules, the criminal structure,

02:41 - 56.082 and indeed criminal consequences.

02:41 - 59.710 At the very least, they should be given the same protections.

02:42 - 03.580 You know, the social cost for getting a search warrant as,

02:42 - 08.785 the Supreme Court just articulated and WBE was a child being abused.

02:42 - 13.490 The Supreme Court said the social cost and Edmonds was criminals going free.

02:42 - 17.461 Surely the social cost of a code violation,

02:42 - 22.575 is not such that it should deprive the individuals

02:42 - 26.303 of that very precious home privacy that they cherish.

02:42 - 30.941 Are you going to know if there's probable cause, if there is no fire

02:42 - 36.522 system, fire, smoke detector or anything along those lines?

02:42 - 38.991 I don't think you can tell that from the outside.

02:42 - 40.126 That's true, Your Honor.

02:42 - 43.153 And that is a big issue.

02:42 - 46.666 Well, Your Honor, I think that there are other things

02:42 - 50.002 in the government's toolkit that can deal with fire safety.

02:42 - 53.206 I'm aware of communities where the fire department goes house

02:42 - 56.233 to house and hands out batteries and smoke detectors,

02:42 - 59.469 and it could even be done without an interior home inspection.

02:42 - 01.848 These inspectors all have iPads.

02:43 - 06.309 They could ask for a photo of just the smoke detector, if that was really

02:43 - 10.046 the precise safety and health issue that they were going for,

02:43 - 13.483 it wouldn't be a wall to wall search of every single room.

02:43 - 19.689 It's it is not a sufficient reason to overcome probable cause,

02:43 - 22.468 which is a very high threshold for the government

02:43 - 25.128 to meet in Pennsylvania, and it has not met it here.

02:43 - 27.074 Thank you.

02:43 - 30.100 Thank you.

02:43 - 40.787 As I was saying previously, and again, it's briefed.

02:43 - 43.823 I'm not going to go into it, but this court has time and time again

02:43 - 46.850 determined that these administrative warrants

02:43 - 51.221 are permissible without the need for individualized probable cause.

02:43 - 54.491 And if that's not sufficient, in 2021,

02:43 - 59.062 the Pennsylvania Supreme Court in re rib while

02:43 - 03.676 let's say it's dicta, went through a whole analysis of the difference

02:44 - 07.304 of administrative warrants, which it deemed as dragnet searches

02:44 - 10.774 because it's a routine and regular inspection

02:44 - 15.288 as opposed to a criminal warrant where you need probable cause

02:44 - 18.315 because you believe somebody committed some crime.

02:44 - 22.919 And that is a road map for this court here today

02:44 - 29.059 that, in fact, also in dicta, indicated that there is a reduced,

02:44 - 32.805 or it's a lesser standard of article one, section eight

02:44 - 37.067 for administrative searches, again, what it deemed as dragnet searches.

02:44 - 39.745 So this issue has been decided.

02:44 - 42.849 The requirement of individualized probable cause has already been

02:44 - 45.876 rejected for these type of administrative searches.

02:44 - 49.246 The other thing I wanted to mention, sorry to say in, is the practical

02:44 - 52.315 effect of raising the level of probable cause

02:44 - 55.819 such that any objection to an inspection

02:44 - 59.055 or most will lead to no inspection.

02:45 - 02.369 That's correct.

02:45 - 05.504 I mean, and I think, as somebody previously

02:45 - 08.498 asked, you know, how do you see things that are inside?

02:45 - 13.670 You don't know if there's an issue until you get to do an inspection in there.

02:45 - 19.619 And I know judge has indicated that, the inspections are excessive.

02:45 - 22.646 130 areas. Okay.

02:45 - 24.090 That's a misnomer.

02:45 - 26.325 If you look at the inspection report.

02:45 - 29.853 Yes. If you read each and every box, I think there's 130.

02:45 - 31.831 That's because it was placed in a tablet.

02:45 - 34.367 So the inspectors go in and push those boxes.

02:45 - 36.035 It's also by room.

02:45 - 40.172 So instead of just saying all outlets, you would go into the front room

02:45 - 43.109 and you would look at outlets, electrical, etc..

02:45 - 45.311 Okay. That's why there's all these boxes.

02:45 - 50.273 It is not excessively intrusive because there's quote 130 areas.

02:45 - 53.586 It is simply the requirements per

02:45 - 56.947 the International Property Maintenance Code of what needs to be saved.

02:45 - 58.691 Safe.

02:45 - 01.952 Well, this is another example of disputed facts so that,

02:46 - 05.865 you know, I keep having to remind myself my brain is like slipping into.

02:46 - 09.225 When you said that the trial court found that there were these excessive,

02:46 - 12.772 violations as violation.

02:46 - 14.073 The right word.

02:46 - 14.408 What? Yet?

02:46 - 16.676 Whatever. You just said, it was excessive.

02:46 - 19.703 But here there's disputed facts about this.

02:46 - 24.050 So sometimes I felt like the trial court opinion

02:46 - 28.645 was sounding as if, we were at a later stage in the proceeding.

02:46 - 32.158 Yes. And I have to wonder

02:46 - 37.063 sometimes if the trial court, took facts and made a judicial determination

02:46 - 41.891 in order to render a decision, you know, but and again, the trial court,

02:46 - 46.105 I because my point is as if opposing counsel was standing

02:46 - 48.874 next to you right now, he would probably dispute

02:46 - 50.910 what you're saying about checking the boxes.

02:46 - 55.271 And I trust this panel's review of the entirety of this record.

02:46 - 57.483 To look at that.

02:46 - 00.219 Not necessarily,

02:47 - 03.255 you know, argument of the facts per se, in the briefs.

02:47 - 05.691 But look at the actual record.

02:47 - 11.464 What is there the the ordinance is there, the SOP is there, the warrants are there.

02:47 - 14.524 What the emails, the the inspection reports are there.

02:47 - 17.169 The inspection reports are there, of examples

02:47 - 20.196 where people failed inspections of different areas.

02:47 - 21.141 They're all there.

02:47 - 24.076 It's a systemic routine and regular inspection

02:47 - 27.103 to ensure the health, welfare and safety of these tenants.

02:47 - 28.614 Thank you.

02:47 - 30.549 Thank you very, very much.

02:47 - 35.021 Next we will hear the Consolidated Cross appeals related to a request filed

02:47 - 39.382 by Daniel Auerbach under the City of Philadelphia's Home Rule Charter.

02:47 - 44.363 As a bit of background, in March of 2022, Mr.

02:47 - 48.434 Auerbach filed an open records request under the Right to No Law, seeking

02:47 - 52.295 copies of all emails from the City of Philadelphia's Health commissioner

02:47 - 55.307 related to Covid 19 from January 1st,

02:47 - 58.334 2022 to the date of the request.

02:47 - 02.048 These records were produced by the City of Philadelphia, but were subject

02:48 - 05.241 to redaction for applicable exemptions under the right to no law.

02:48 - 06.920 The request

02:48 - 10.447 currently before the court, was then filed in July of 2022,

02:48 - 14.226 and saw unredacted versions of several of the email chains

02:48 - 17.196 that were provided related to the March request.

02:48 - 18.464 Specifically, Mr.

02:48 - 22.625 Artbox requests relied on charter Section 5-1104,

02:48 - 26.772 which generally provides that all city records should be open

02:48 - 30.109 to public inspection, subject to reasonable regulations

02:48 - 34.413 related to time, place and manner, unless disclosure of such records

02:48 - 37.974 would invade a person's right to privacy, hinder law enforcement

02:48 - 42.779 and endanger the public safety, or breach a legally recognized duty of confidence,

02:48 - 46.282 or where the nondisclosure of the records is legally privileged.

02:48 - 50.353 The city denied the request in an August 2022 letter,

02:48 - 54.224 stating that the redacted portions were covered by charter sections.

02:48 - 55.868 Mr. Auerbach

02:48 - 59.262 appealed that denial to the Court of Common Pleas of Philadelphia County,

02:48 - 03.275 and that appeal, the City of Philadelphia challenged the Court of Common Pleas

02:49 - 07.413 jurisdiction over the matter, arguing that the letter was not an appeal able

02:49 - 11.650 adjudication under local agency law because it did not impact Mr.

02:49 - 13.776 Auerbach's personal or property rights.

02:49 - 18.624 Alternatively, the city argued that even if the letter was appeal able,

02:49 - 22.628 it properly denied the request because the redacted material was exempt

02:49 - 26.189 from disclosure under one or more of the exemptions noted in the charter.

02:49 - 30.360 The Court of Common Pleas rejected the city's jurisdictional argument

02:49 - 33.630 and held an in-camera review of the emails.

02:49 - 37.534 Ultimately, Common Pleas agreed with most of the city's redactions,

02:49 - 40.479 but rejected some of the privilege determinations

02:49 - 43.616 and ordered the city to produce the relevant emails.

02:49 - 45.985 With those redactions removed.

02:49 - 50.022 Mr. Auerbach then appealed to this court, challenging whether the statutory

02:49 - 53.816 exemption and the right to know law, and the deliberative process of privilege

02:49 - 57.062 applied to the Charter's right to an inspection.

02:49 - 59.532 The city then filed a cross appeal, contending that

02:49 - 02.968 the trial court had aired and finding that the city's letter denying Mr.

02:50 - 06.663 Auerbach's request to inspect was an appeal able adjudication.

02:50 - 08.765 Let's listen to their arguments now.

02:50 - 12.545 May it please the court?

02:50 - 13.979 My name is Kelly Defintely.

02:50 - 16.815 I'm here on behalf of this new speaker.

02:50 - 17.117 Today.

02:50 - 19.685 I'm here on behalf of the City of Philadelphia,

02:50 - 22.555 who is the designated appellant in this case.

02:50 - 26.091 And with the court's permission, I'm going to divide my time

02:50 - 30.687 to seven minutes and reserve eight minutes to respond to the, cross appeal.

02:50 - 31.865 You've got it.

02:50 - 35.825 I'll talk about jurisdiction first and then talk about, the delivery

02:50 - 37.970 privilege process. Second.

02:50 - 43.866 So your honors are well aware that not every decision or action

02:50 - 48.504 of a government agency or person, is appeal able to this court.

02:50 - 52.909 Only adjudications, which is a defined term under the local agency law.

02:50 - 56.488 And your honors frequently hear cases involving

02:50 - 59.782 whether a particular decision, is an adjudication.

02:51 - 01.717 In this case,

02:51 - 04.597 the city's position

02:51 - 10.569 is that, the public inspection provision, a denial of a request

02:51 - 13.796 under the public inspection provision is not an appeal able adjudication.

02:51 - 18.635 The rights conferred by that charter provision are public rights.

02:51 - 23.382 The charter provision does not confer an individualized right to individual

02:51 - 28.678 people to request records, akin to the way that the right to no law does.

02:51 - 33.316 Instead, it was a essentially a policy declaration on behalf of the drafters,

02:51 - 37.630 to recognize that, of course, the people who are being governed

02:51 - 41.691 have a right to look at, request and see documents.

02:51 - 46.038 But it was not a decision to create an administrative scheme

02:51 - 50.109 kind of similar to the right to know law, where individual people,

02:51 - 53.736 would, be able to appeal to the courts to appeal further.

02:51 - 58.350 So how does how does an individual citizen vindicate that?

02:51 - 59.019 Right?

02:51 - 01.253 You're saying there's no rubric like the.

02:52 - 04.247 Oh, how does a Philadelphian

02:52 - 06.592 get those documents?

02:52 - 06.993 Sure.

02:52 - 10.019 I mean, I think that, you know, I want to make clear that obviously

02:52 - 11.430 there is a right here. Right.

02:52 - 13.098 I maintain it's a public right.

02:52 - 16.035 So that means that that person's can ask for documents.

02:52 - 18.437 And in many cases, the city is going to be perfectly willing

02:52 - 19.406 to get those documents,

02:52 - 23.499 because we already have a system fully in place to respond to right to no law.

02:52 - 25.010 Requests.

02:52 - 28.104 But the city can deny that is what you're saying.

02:52 - 30.916 They can. So it's a right without a remedy.

02:52 - 31.518 You know it.

02:52 - 33.252 It is a it is a public right.

02:52 - 37.380 And so just like any other public right, if you don't agree with it,

02:52 - 40.859 you have the political process, for example, to vindicate that right.

02:52 - 42.294 You can go to your council person.

02:52 - 46.732 You can, you know, speak to people within, or alternatively,

02:52 - 51.027 can you avail yourself of the parallel procedures of the right to know?

02:52 - 53.238 Yes. That was going to be my second response.

02:52 - 53.840 Of course,

02:52 - 57.567 you have the right to know law, which is a statewide, procedure already in place.

02:52 - 03.039 You know, that's set up perfectly to address precisely this situation.

02:53 - 06.609 And I thought a couple examples might be helpful for the court.

02:53 - 09.188 I was looking at other charter provisions.

02:53 - 11.857 So, for example, the water Department has a responsibility

02:53 - 15.151 to deliver clean water to its to the citizens.

02:53 - 20.099 Now, if I ever sit as a citizen, believe that my water is is not clean

02:53 - 24.303 with fluoride in it, you know, maybe I would ask the water department.

02:53 - 26.038 Well, you know, please take the floor.

02:53 - 28.440 Adam. Fluoride out of my water.

02:53 - 31.910 The right the duty

02:53 - 34.937 that's imposed upon the water department is a public duty. So.

02:53 - 38.408 So my asking to remove fluoride is not the kind of decision that I can

02:53 - 41.411 then appeal as an adjudication up through the courts.

02:53 - 45.224 Another example, the streets department,

02:53 - 47.893 we all interact if we live in Philadelphia

02:53 - 50.829 with the streets department has to clean up garbage.

02:53 - 55.134 It has to handle roughly, it has to, de-ice and plow snow.

02:53 - 59.505 And we all hear complaints about whether our trash is picked up frequently enough,

02:53 - 02.532 or whether it's on the day or as frequently as we want.

02:54 - 07.570 Or if the plows come down the street, my street, which might be a small street,

02:54 - 10.048 and might not get the kind of attention I need.

02:54 - 12.751 Again, that is a public duty owed to the public.

02:54 - 15.778 So that means individual citizens don't have the right to just

02:54 - 19.882 approach the court and and say or appeal to the court and say, you know, I want,

02:54 - 22.061 my street plowed

02:54 - 25.121 first or I want you to come on this day to pick up my trash.

02:54 - 29.435 I think this concept, is well recognized

02:54 - 32.462 in the case law, and I and I point the court to two cases.

02:54 - 35.507 The male for in case and the butcher case.

02:54 - 39.101 And in both those cases, a, right to public inspection,

02:54 - 43.105 with language almost identical, I believe actually is identical.

02:54 - 46.752 So our, our charter says that city records

02:54 - 48.787 shall be open for public inspection.

02:54 - 51.156 The provision and male horn said,

02:54 - 54.059 it shall be available for public inspection.

02:54 - 57.029 And I believe butcher has to be open for public inspection.

02:54 - 00.957 So we're talking about provisions that have language that's virtually identical

02:55 - 02.435 in the male horn case.

02:55 - 04.937 Of course, that was actually a specific jurisdictional question

02:55 - 09.107 under the local agency law, just like where I was the administrative agency law.

02:55 - 12.602 But it's the corollary, which is the exact question before this court.

02:55 - 15.972 And that person asked to review

02:55 - 19.375 records under an election code provision providing for a public inspection.

02:55 - 22.421 They got documents, they were unsatisfied with what they got.

02:55 - 26.516 And they they tried to appeal to this court under its appellate jurisdiction.

02:55 - 28.760 They also brought an original jurisdiction action.

02:55 - 32.755 But in the analysis of the appellate jurisdiction question,

02:55 - 35.267 the court looked at exactly,

02:55 - 38.895 the question that is before this court and the argument that I am making.

02:55 - 41.931 And it said it said that any right to public,

02:55 - 44.810 any public inspection right

02:55 - 47.837 under the provision is held by, quote, the public in general.

02:55 - 52.308 And for that reason, no right, privilege or immunity of a person,

02:55 - 56.288 is in jeopardy when that right is denied.

02:55 - 58.891 To kind of get to, to your honor question.

02:55 - 00.392 Judge, judge reject.

02:56 - 03.419 And so it's not an adjudication

02:56 - 06.489 now butcher much older not this court.

02:56 - 10.593 It was the Superior Court, but I, you know, I think it stands for the,

02:56 - 14.573 you know, very similar concept, which is, that person was wanted

02:56 - 17.376 a copy of a civil service exam, and there was a civil service provision

02:56 - 20.779 in the charter that said you can get, records of the Civil Service Commission.

02:56 - 22.381 He wanted an exam ahead.

02:56 - 26.242 You wanted an old exam ahead of taking the new exam so he could see what it said.

02:56 - 29.221 And the Civil Service Commission didn't want to bring it.

02:56 - 31.490 And that was a mandamus action.

02:56 - 32.958 But I think the important part

02:56 - 36.652 of that decision is that it characterized it as a public duty.

02:56 - 39.898 And because the mandamus, statute at that

02:56 - 45.003 time did not allow individuals, did not allow individuals

02:56 - 49.799 to vindicate public rights, and that's how it characterized it as a public right.

02:56 - 54.212 That he could not bring a mandamus action, he would have had to do it

02:56 - 57.916 through the attorney general involving a relator.

02:56 - 01.486 So so if we did it, I agree with him, though,

02:57 - 04.790 if we disagreed that it was a public right and thought that there was some sort

02:57 - 09.819 of individual right, because there's no other procedure in the,

02:57 - 14.633 charter, would it be mandamus then that he would have

02:57 - 18.027 he would have to file in order to be able to.

02:57 - 22.574 I mean, I think that a category agree that it is.

02:57 - 27.012 And if he did think right, on an visualized person.

02:57 - 30.539 No, I think I think that this procedure is the correct procedure, which is,

02:57 - 35.587 you know, the local agency law does say if you have a, a right that's vested in

02:57 - 39.515 an individual that is infringed upon, then you can appeal it to the court.

02:57 - 41.961 Oh, I see, so is

02:57 - 45.855 the only reason it's not an adjudication in your right in your mind

02:57 - 50.869 that it, is not a individual.

02:57 - 51.204 Right?

02:57 - 55.340 There's otherwise no other requirements

02:57 - 59.769 that are not met in the determination.

02:58 - 03.915 Yes, Your Honor, I mean, know, the definition of adjudication,

02:58 - 07.543 you know, certainly recognizes that statutes confer rights.

02:58 - 12.081 So then the question becomes, well, is this a is this a right and adjudication.

02:58 - 16.995 I can bring up the language is is a it has to be a right of one of the parties

02:58 - 19.097 to the proceeding, so that obviously it has to be

02:58 - 22.124 a right of an individual as opposed to the public.

02:58 - 26.896 So you know that that that is the narrow, precise question before this court.

02:58 - 28.397 And,

02:58 - 32.678 judge, the judge below obviously disagreed with us and,

02:58 - 36.939 and moved on to the whether the exceptions are apply.

02:58 - 37.850 I'm going

02:58 - 41.444 to let my opposing counsel speak to that and then I will respond afterward.

02:58 - 43.221 Okay. Thank you.

02:58 - 46.248 Thank you.

02:58 - 51.830 Good afternoon, Your Honor.

02:58 - 52.732 May please court.

02:58 - 54.833 I'd like to reserve five minutes for rebuttal.

02:58 - 56.735 Okay. You got it.

02:58 - 59.671 Just briefly going into the merits of the city's appeal.

02:58 - 02.274 Essentially, the city statement to this court is a right for all.

02:59 - 03.542 Is a right for none.

02:59 - 05.177 That doesn't make any sense.

02:59 - 07.579 And it's not supported by their case law.

02:59 - 08.947 I want to first address butcher,

02:59 - 12.417 because not only is that an extremely old case,

02:59 - 16.345 but it's under the old mandamus standard where a person had to establish, the,

02:59 - 19.699 the relator test, they had to prove that they could step in for the government.

02:59 - 23.862 But more importantly, I think to our point, the butcher case

02:59 - 28.166 actually said that the right to inspection was a statutory right to inspection.

02:59 - 30.435 So, notwithstanding. What's he saying?

02:59 - 33.271 They may have found that a public duty which needed to be enforced

02:59 - 36.298 under the relator test, but it was still a right.

02:59 - 40.035 And local agency law was created to vindicate rights without remedies.

02:59 - 43.906 In this case, the city has created a public right to inspection.

02:59 - 47.452 We sought the records through the city's process.

02:59 - 49.454 We made the process such it is, as we understand it

02:59 - 51.289 from a previous case was we'll email the city.

02:59 - 54.259 They deny that we appealed under local agency law.

02:59 - 56.261 The city said, no, you may not have the records.

02:59 - 58.296 There was a variety of reasons why they gave the records,

02:59 - 00.999 but we we filed our appeal to Common Pleas.

03:00 - 05.161 And our argument and argument for there is that it is an adjudication.

03:00 - 06.739 It is well-settled

03:00 - 10.742 that the right to know law establishes that transparency requests are privileges

03:00 - 14.079 and an adjudication and a very expansive, definition

03:00 - 16.681 given by General Assembly includes the word privileges.

03:00 - 19.745 I don't really think there's any question here that this was an adjudication.

03:00 - 23.755 So I'm just going to move into, the deliberative process privilege,

03:00 - 25.899 which I think might be more interesting to this court.

03:00 - 29.494 It is our position just to open that

03:00 - 32.264 this case is not really the correct vehicle

03:00 - 35.167 for this court to reexamine the deliberative process privilege.

03:00 - 37.803 It is creates serious constitutional questions

03:00 - 39.371 which we believe should be avoided.

03:00 - 41.239 This is a statutory right place.

03:00 - 42.674 This is not a litigation case

03:00 - 45.701 where we're talking about discovery or evidentiary questions.

03:00 - 48.880 This is strictly, strictly limited to the city's charter.

03:00 - 52.551 And it is our position that if you construe the charter literally

03:00 - 55.687 as is legally privileged at the time of its passage, we can avoid

03:00 - 00.158 constitutional questions of who can create privileges in Pennsylvania and who can

03:01 - 03.519 how and did the city properly deli so once.

03:01 - 07.732 I mean, it stays like that.

03:01 - 10.960 And even though, you know, times have changed

03:01 - 13.972 and so and times will continue to change

03:01 - 19.635 and different types of documents or mediums

03:01 - 22.547 may become available and with different information,

03:01 - 28.253 some of which may be private, personal, there may be other good business reasons

03:01 - 32.715 why information would need to be redacted from being shared.

03:01 - 35.918 You're saying that unless there is

03:01 - 38.621 an ongoing legislative

03:01 - 41.900 amendment to this particular

03:01 - 45.494 provision, it stays the way it is and whatever.

03:01 - 48.707 Whenever people do business with the city, they have to know

03:01 - 51.967 that somebody else can come in and get all their personal information.

03:01 - 57.916 So to answer your question directly,

03:01 - 01.052 the city has the power to amend its own charter.

03:02 - 02.954 So I think that's what you were asking

03:02 - 04.756 was, does the city need to change its charter?

03:02 - 06.224 And in position is yes.

03:02 - 10.052 The city changes its charter nearly every and every every election.

03:02 - 13.398 So it is not that difficult for them to put forward and change the charter.

03:02 - 16.201 If they'd like to update it in some way, they can choose to do so.

03:02 - 17.602 But they've never done so.

03:02 - 21.030 I do understand your concern about evolving conditions, but

03:02 - 24.109 that's sort of a problem with statutes that exist already.

03:02 - 25.777 It's one of the reasons why the Right to Know Act

03:02 - 27.746 was repealed, and the Right to Know law was imposed

03:02 - 29.781 because it didn't meet the needs of the citizens.

03:02 - 31.449 And if this doesn't meet the needs of the citizens,

03:02 - 34.513 or it doesn't meet the needs of the city, then the city is free to change it.

03:02 - 37.355 But instead the city's here and asking the courts to change it for it.

03:02 - 40.716 It's asking it to create a new privilege, which didn't exist in 1956,

03:02 - 43.695 where there's no well, there were no emails in 1956 either.

03:02 - 45.664 Well, Your Honor, I don't I don't believe the city's contesting

03:02 - 47.632 the fact that it's emails they're contesting that.

03:02 - 49.668 No, but what I'm saying is you want us.

03:02 - 53.095 On the one hand, you want us to read the statute to include

03:02 - 56.308 access to information that didn't exist at the time.

03:02 - 59.568 But then you want us to also interpret the act to limit

03:02 - 04.649 whatever defenses there are or exemptions to what did exist at the time.

03:03 - 08.787 And I'm asking if you're as you know, it's if that's really the right way

03:03 - 10.655 to be interpreting a statute,

03:03 - 14.984 you interpret it to your benefit when you want and not to your benefit.

03:03 - 17.595 I believe that's the constitutional way to interpret a statute.

03:03 - 22.133 But to answer your question directly, the city records is defined in the charter

03:03 - 25.270 as shall include all books, papers, maps, photographs,

03:03 - 28.297 reproductions and other documentary materials.

03:03 - 29.975 An email is a documentary material.

03:03 - 30.876 And that's how Judge Roberts

03:03 - 33.902 originally came to his conclusion that said emails are included.

03:03 - 35.313 Memos.

03:03 - 37.649 These type of interoffice things were always conducted.

03:03 - 39.718 An email is just a modern means of doing that.

03:03 - 42.520 And I think if you look at other transparency laws, they have evolved.

03:03 - 46.057 And they do recognize that email is just a different medium for communication.

03:03 - 49.284 It is not actually different than what they were and what they're exposing.

03:03 - 52.554 I mean, the volume to your to your answer might be one of the things that

03:03 - 55.791 and that is what caused the problems in our first charter request.

03:03 - 57.969 But I don't believe that we

03:03 - 01.797 are interpreting it one way in our favor and in our and differently in another.

03:04 - 05.377 To briefly go into

03:04 - 09.047 the delegation problem, that I think that the city is asking

03:04 - 13.142 this court to create, in order for delegation to to exist,

03:04 - 16.812 there must first off, you cannot presume delegation,

03:04 - 21.459 and any delegation must be that the legislature

03:04 - 25.354 in their charter or statute must make basic policy choices,

03:04 - 28.500 and they must provide adequate standards to guide

03:04 - 31.369 and restrain the delegated body.

03:04 - 37.175 So I raise questions if it is even improper for a legislator to delegate.

03:04 - 41.036 It's it's it's regulatory or statutory choices to the judiciary.

03:04 - 43.615 But skipping beyond that, even if it is allowed to do that,

03:04 - 45.550 it is not providing any standards.

03:04 - 47.986 And so uses the word is legally privileged.

03:04 - 50.989 And the city wants us to interpret is legally privileged to mean

03:04 - 54.259 it was current, was legally privileged at the time of the passage of charter,

03:04 - 58.387 and any legal privilege that any court subsequently adopts in Pennsylvania,

03:04 - 00.065 and that would be non delegation.

03:05 - 02.967 I think if you look at phantom fireworks, which we've my preferential case

03:05 - 04.035 look at in this case,

03:05 - 07.062 the National Fire Protection Association knows a lot about fire codes.

03:05 - 10.008 They are the ultimate body that is going to know if you know,

03:05 - 13.035 you can make a fire, a fireworks sales building safe.

03:05 - 17.139 And their subsequent additions to the NFPA are going to make that building safe.

03:05 - 20.718 And the Supreme Court said, no, you cannot delegate it to the NFPA

03:05 - 23.979 to make future fire code choices, even if that may make sense,

03:05 - 25.924 because I think part of it is the certainty

03:05 - 28.393 you need to know certainty at the time the statute is passed.

03:05 - 30.161 What is what is this protecting?

03:05 - 31.996 If the charter wants to change the.

03:05 - 32.264 Excuse me?

03:05 - 34.666 If the city wants to change the charter, they can do so.

03:05 - 37.268 And they can adapt it to modern circumstances.

03:05 - 39.704 They can incorporate whatever privileges they want through the through

03:05 - 43.432 the proper legislative process, and that will create statutory privileges.

03:05 - 46.578 But they're asking this court to create a litigation privilege

03:05 - 49.738 or to adopt a litigation privilege into a statutory right.

03:05 - 53.284 And it is our position that, that is inappropriate

03:05 - 56.411 because discovery and evidentiary before a court in a proceeding

03:05 - 58.923 is completely different than the statutory exemption.

03:05 - 00.525 I think we should point to the right to know law.

03:06 - 04.062 It's a great example of of this problem or not this problem, but illustrates

03:06 - 08.824 my point, which is the right to know law provides for legal privileges, are exempt

03:06 - 12.637 as public records, but it also provides a specifically enumerated list of some

03:06 - 16.698 that is 28 enumerated things, one of which is pre decisional deliberations.

03:06 - 19.377 So you slow down just a little bit. I'm trying.

03:06 - 21.012 You really know your stuff.

03:06 - 22.380 I panic under time pressure.

03:06 - 23.315 That's okay.

03:06 - 26.284 But you convey more and less time. Yes sir.

03:06 - 29.420 So under the art rights no law they created

03:06 - 32.548 a statutory exemption for pre decisional deliberations.

03:06 - 36.694 And that statutory exemption shows what the right process

03:06 - 38.263 is to create an exemption.

03:06 - 42.591 It doesn't exist in common law when you're creating a transparency law.

03:06 - 47.071 In this case, as the city said this is a political process to address it.

03:06 - 48.007 But it's not.

03:06 - 52.301 The transparency of the government informs the political process.

03:06 - 55.437 If we don't know what's going on in our government,

03:06 - 57.515 how do we know what to complain about?

03:06 - 00.351 How do we know what to vote for?

03:07 - 03.879 And every other example, just to go back to the to our first point,

03:07 - 06.257 every example, she said. It isn't a chartered duty.

03:07 - 06.992 We don't have that.

03:07 - 09.160 The charter doesn't say that the streets department

03:07 - 12.130 will come through and pick up our trash every Monday and Friday.

03:07 - 14.299 It's it's not a charter, right?

03:07 - 15.767 The framers of the charter,

03:07 - 18.311 founders of the charter, I'm not sure which way to go with that.

03:07 - 19.605 Create an a

03:07 - 22.640 public right to inspection because they wanted the governed

03:07 - 26.401 to know how they were being governed, to know what their government was doing.

03:07 - 29.705 And to that point,

03:07 - 33.075 if they would like to change the knowledge that, that, that,

03:07 - 36.221 that the governed to the knowledge that Mr.

03:07 - 40.449 Auerbach is entitled to get, they can do so we filed a charter request,

03:07 - 42.260 about two years before this.

03:07 - 44.929 If they didn't like it and they they should have been aware of the problem

03:07 - 46.864 and made the changes, they could have made the changes before

03:07 - 48.933 we made our renewed charter request, but didn't.

03:07 - 52.160 So obviously they weren't as concerned about it as they seem to claim here.

03:07 - 56.241 And I would just ask that this court bypass deliver a process privilege,

03:07 - 00.002 find that it doesn't exist for the constitutional problems that it creates,

03:08 - 03.982 and just find that the legal privileges which must be applied to

03:08 - 05.283 the charter were the ones that exist.

03:08 - 07.785 And why is there a constitutional problem with it?

03:08 - 11.089 Just the first thing is the the delivery process.

03:08 - 14.792 Privilege for executive branch is not a privilege that exists in Pennsylvania.

03:08 - 16.361 I realize this court has adopted it,

03:08 - 20.188 but at every opportunity that the Supreme Court of Pennsylvania has faced it,

03:08 - 23.959 they have declined to adopt it, except with respect to judiciary.

03:08 - 26.995 The two times that there's been any necessarily positive

03:08 - 30.108 feedback from Supreme Court or with a chief justice situation

03:08 - 31.442 and the cash for kids situation.

03:08 - 34.469 But we've recognized it like in Van Hine.

03:08 - 35.780 It's there.

03:08 - 38.449 So we'd have to overrule ourselves.

03:08 - 40.218 Your Honor, I don't I believe the Supreme Court

03:08 - 43.721 has already overruled this court subsequent toe in McAleer,

03:08 - 48.884 where it clearly said the procedural rules must be adopted by the Supreme Court.

03:08 - 50.862 You think Van Haynes been overruled?

03:08 - 55.157 I believe, and honestly, Westlaw may disagree with you.

03:08 - 56.290 Okay, but,

03:08 - 01.105 But I believe McAleer does make the Pennsylvania Supreme Court's

03:09 - 05.410 position on privileges and who can create privileges under our Constitution.

03:09 - 07.445 Clearly, I see, and that's okay.

03:09 - 10.472 Thank you very much.

03:09 - 13.952 Excuse me.

03:09 - 17.789 I'm gonna make a couple quick points on the applicability issue before I move on

03:09 - 21.183 to, in response, before I move on to the deliver process privilege.

03:09 - 24.553 He said that butcher says that it's a statutory right to inspection.

03:09 - 28.123 I don't disagree, it is obviously a statutory right to inspection.

03:09 - 31.202 The question is, since local agency law requires

03:09 - 34.629 that it has to be a statutory right of the party to the proceeding,

03:09 - 37.766 whether it is an individual right or a public right.

03:09 - 39.544 And is there a proceeding here?

03:09 - 41.479 That was part of my question.

03:09 - 45.707 Was there a proceeding here or.

03:09 - 47.452 I guess I'm not understanding, your Honor.

03:09 - 50.979 You said it had to be an individual right of someone to the proceeding.

03:09 - 52.424 Right.

03:09 - 54.058 I think it means like of the appellant

03:09 - 56.361 to the proceeding minutes, like of the appellant. So.

03:09 - 56.662 Okay.

03:09 - 59.797 You know, sometimes there's administrative decisions

03:09 - 02.824 below, and maybe that's what they meant by proceeding,

03:10 - 07.739 in terms of my references to to water and trash, I didn't write the charter

03:10 - 11.242 provisions down, but those are rights that are conferred in the charter.

03:10 - 15.980 So it's the same, the right, the duty to pick up trash and to provide water.

03:10 - 19.117 Our charter provisions,

03:10 - 22.411 moving on to the deliberative process privilege.

03:10 - 26.415 Just a couple real quick points before I get into the meat.

03:10 - 28.493 He references a litigation privilege.

03:10 - 29.827 I'm not really sure what that is.

03:10 - 33.455 A privilege is a privilege and obviously the right to know law,

03:10 - 39.270 reflects that privileges that exist elsewhere in the law, which are then

03:10 - 43.031 codified into the right to know law, you know, can apply to record requests.

03:10 - 48.737 And in fact, there are myriad decisions which, which state

03:10 - 52.150 that the internal pre decisional provision

03:10 - 55.853 of the right to know law codifies the deliberative process privilege.

03:10 - 56.988 If it doesn't exist.

03:10 - 59.891 That sort of begs the question what it is codifying.

03:10 - 03.828 But getting to kind of the meat of the of the issue.

03:11 - 07.131 Obviously the charter allows, for exclusion

03:11 - 10.292 of anything that is subject to a legal privilege.

03:11 - 12.438 The non

03:11 - 15.440 delegation doctrine that he is really hanging is hat on here.

03:11 - 17.241 It just has no application.

03:11 - 20.569 First of all, non delegation is a constitutional

03:11 - 23.848 is a constitutional privilege principle.

03:11 - 29.177 And it is based on the idea that we don't want to have legislative functions,

03:11 - 32.414 handled by other branches of government,

03:11 - 35.951 obviously in terms of,

03:11 - 40.631 analyzing and recognizing the common law, that is the job of the judiciary.

03:11 - 45.393 It's not like you are taking on the job of, of the legislature.

03:11 - 49.664 So it just simply has no application at all.

03:11 - 54.312 I have not found a single case that applies this doctrine to,

03:11 - 57.706 a decision that is supposedly conferred to the judiciary.

03:11 - 00.751 Maybe one is out there, but I didn't find it.

03:12 - 03.855 And I would point out that there are myriad

03:12 - 06.882 statutes and rules that reference privileged materials.

03:12 - 12.287 Just as an example, the civil rules permit discovery in any matter,

03:12 - 16.157 any matter not privileged, which is relevant to the matter.

03:12 - 21.539 So by his analysis, that rule is unconstitutional

03:12 - 25.534 because by saying any privilege, right, that leaves open the idea that a

03:12 - 30.605 another privilege could arise, either statutorily or by common law.

03:12 - 34.986 I think the reality is the construction

03:12 - 39.190 of the provision by the drafters just reflected reflects that.

03:12 - 41.125 They understood that they couldn't

03:12 - 44.786 anticipate every privilege that would exist in the future.

03:12 - 49.500 And that's consistent with the Statutory Construction Act, which of course states

03:12 - 55.497 that, something stated in the present tense includes a includes future tenses.

03:12 - 58.967 So, I mean, that's embodied right in our statutory construction act.

03:12 - 02.880 The cases that he cites, phantom fireworks and props

03:13 - 05.016 are just completely just distinguishable.

03:13 - 09.754 They involve situations where, essentially the, the,

03:13 - 13.958 the right at issue was being, delegated to a private,

03:13 - 15.593 an outside private organization

03:13 - 18.820 where there are all sorts of issues that those courts talked about.

03:13 - 23.191 You know, that that those organizations are subject to outside influences.

03:13 - 24.169 They're essentially,

03:13 - 29.030 not subject to any kind of oversight, either by the public, by a hearings

03:13 - 32.801 or as those courts both pointed out, to judicial review.

03:13 - 36.738 So they really have no application here whatsoever.

03:13 - 41.052 And then in just in terms of whether,

03:13 - 44.922 the Supreme Court is the only entity that can recognize a privilege,

03:13 - 49.818 I think that's just completely belied by our entire judicial system.

03:13 - 51.829 It is very clear.

03:13 - 53.164 And I think my opposing counsel

03:13 - 57.292 even recognized that this court has, has squarely and repeatedly,

03:13 - 00.996 acknowledged the existence of a deliberative process privilege.

03:14 - 04.842 And I don't think there's any doubt that the Supreme Court, when it is presented

03:14 - 07.869 with the proper case, is going to adopt it as well.

03:14 - 11.449 All of the cases that are plurality cases or where

03:14 - 15.152 they have not formally adopted it, is because those cases

03:14 - 18.179 did not present a factual pattern where it was necessary.

03:14 - 22.584 They were faced with situations where another privilege applied,

03:14 - 25.529 or there were other reasons where they did not

03:14 - 28.556 they were not squarely presented with the need to adopt it.

03:14 - 34.295 But they pretty much uniformly cite to Vartan and, and the concept,

03:14 - 38.533 stating that they agree with it, that the policies animating the privilege

03:14 - 42.113 make total sense, which your honors are probably familiar with.

03:14 - 42.347 Right.

03:14 - 43.881 The whole idea is, first of all, it's not a

03:14 - 46.751 it's not a privilege for the individual to protect themselves.

03:14 - 50.078 It's a privilege for the public because we want our government officials

03:14 - 53.157 to to not feel like they use the word, you know, in a fishbowl,

03:14 - 56.184 right, that that you want to be able to have candid conversations,

03:14 - 00.055 about certain matters before they are final,

03:15 - 04.626 that are not going to be, seen or delved into by the public.

03:15 - 08.530 There are really solid public policy reasons, supporting it.

03:15 - 11.576 My opposing

03:15 - 14.602 counsel mentioned the Michael McAleer case.

03:15 - 18.406 I'm really vexed by his,

03:15 - 22.577 discussion of what that court, that case says.

03:15 - 26.057 I read it, it says nothing

03:15 - 29.084 even close to what he says it does.

03:15 - 32.196 The only reference in that case

03:15 - 35.323 to, to to rules is that that court.

03:15 - 39.670 So essentially that court was considering, the attorney client privilege

03:15 - 44.065 and it was asking whether or not there would be a fiduciary exception

03:15 - 49.513 for cases where, a trustee of a trust, got legal advice

03:15 - 52.516 and whether the beneficiaries could get access to it.

03:15 - 56.444 The court, before it does its fulsome analysis basically just says

03:15 - 00.582 it points to the constitutional provision that says the Supreme Court

03:16 - 03.761 oversees rules statewide.

03:16 - 07.322 In no way did it announce a rule that it in no way did it

03:16 - 11.259 announce a holding, suggesting that it could only adopt things by rule,

03:16 - 15.530 or that it was overruling or abrogating every prior decision on the common law.

03:16 - 18.409 I just think that he just vastly overstates it.

03:16 - 22.303 And I encourage your honors just to yourselves, read that decision.

03:16 - 31.522 I want to see if there's anything else

03:16 - 34.549 I have not covered that I wanted to,

03:16 - 41.433 That's it.

03:16 - 44.459 If you're honest, do not have any further questions.

03:16 - 46.704 Thank you so much.

03:16 - 47.506 Okay. Thank you.

03:16 - 53.368 And you urged the court to reverse the trial court as to the adjudication issue.

03:16 - 56.413 But if you uphold that to, rule,

03:16 - 59.774 affirm on the deliberative process privilege.

03:17 - 02.253 Okay. Thank you.

03:17 - 04.021 And that took you right to the end.

03:17 - 07.048 So perfect. So.

03:17 - 13.564 I'd like to begin with a quote from Michaelia.

03:17 - 17.134 The actual quote is the authority to determine the scope of a common law

03:17 - 17.602 privilege.

03:17 - 20.871 Appropriately, it rests with this court, meaning the Supreme Court under

03:17 - 23.865 article five, section ten of the Pennsylvania Constitution.

03:17 - 27.645 It then quotes article five Tennessee, which says Supreme Court

03:17 - 29.470 must promulgate rules.

03:17 - 32.716 That belies her

03:17 - 35.719 argument that any court can create a privilege.

03:17 - 37.655 Again, I don't believe this is the right vehicle.

03:17 - 40.682 I do acknowledge that this court has previously said it exists.

03:17 - 42.560 We are, bank at this point.

03:17 - 44.395 So, you know, if the court does feel

03:17 - 46.397 that that wasn't overruled, it should overrule it.

03:17 - 50.658 In this case, there is maybe creating a privilege or would we be interpreting

03:17 - 54.963 the home rule, home rule charter

03:17 - 59.767 with its reference to existing legal privileges arising,

03:17 - 02.804 including the deliberative process privilege?

03:18 - 04.915 In other words, we're not creating it.

03:18 - 11.079 We're if we said it's privileged, we're interpreting that provision.

03:18 - 12.157 Right.

03:18 - 15.759 So to answer your question directly, I think that could be a way

03:18 - 19.153 that may that the city would urge you to, to resolve this.

03:18 - 23.133 I the non delegation issue here and the reason the city can't find any,

03:18 - 26.637 any case law that allows to legislative to delegate its duties to the Jewish areas

03:18 - 29.106 because of separation of powers that is prohibited.

03:18 - 31.041 That's why I don't believe it's constitutional.

03:18 - 35.336 The court can create common law privileges and I this isn't the vehicle for it.

03:18 - 36.680 So I don't know.

03:18 - 38.682 I don't have necessarily the right way to do that.

03:18 - 41.051 And I wouldn't want to tell the court how it wants to do that,

03:18 - 43.454 but it has to resolve the Supreme Court is my opinion, right?

03:18 - 46.457 It's against your interest to suggest that we could do that.

03:18 - 47.192 Oh, sure. Yeah.

03:18 - 49.360 But I mean, I also believe that's the constitutional privilege,

03:18 - 50.961 and I believe that's what Michaelia says.

03:18 - 52.830 And frankly, it has to come.

03:18 - 55.099 And the Supreme Court has to codify it as a rule.

03:18 - 58.636 The Supreme Court is not glowing about the delivery of process

03:18 - 59.780 privilege for the executive.

03:19 - 02.840 The the pluralities are horrible.

03:19 - 06.467 The Vartan decision was two out of four judges with job.

03:19 - 10.305 Well, with three of the justice justices recusing, the

03:19 - 12.917 inter branch commission.

03:19 - 14.285 Case.

03:19 - 17.855 Only three judges joined the joined three of the seven judges

03:19 - 22.259 would join the portion of the opinion that spoke positively about the executive.

03:19 - 24.328 The executive deliver process privilege.

03:19 - 26.330 The Supreme Court does not believe.

03:19 - 27.698 In my opinion, this exists.

03:19 - 31.835 And if this court were to create it, I think this or two would create it

03:19 - 33.470 a Daubert whatever the city wants us to do.

03:19 - 36.340 I do question if the Supreme Court would affirm that decision,

03:19 - 40.535 even if it's one Supreme Court justice, we're bound by,

03:19 - 44.848 we have to follow the Supreme Court, regardless of the number in the majority.

03:19 - 45.283 Right.

03:19 - 50.378 Again, the only case that, as is the only case that is affirmatively said,

03:19 - 54.858 a deliberative process just for the judiciary, for chief justice.

03:19 - 57.561 Next was Vartan. That was a plurality decision.

03:19 - 00.431 And it should be allowed to limit only the judiciary because that's the

03:20 - 02.366 that's the principle that makes sense.

03:20 - 04.268 The quality, the judicial and quasi judicial.

03:20 - 05.302 We shouldn't be putting judges

03:20 - 09.173 on the bench and and interrogating them about why they made a decision.

03:20 - 11.875 That's in Saint Paul. That's that's not right.

03:20 - 17.071 But when you have a transparency law that doesn't exempt certain materials, it

03:20 - 19.516 it does make sense for me as a voter in Philadelphia

03:20 - 21.618 to be able to inquire about my trash collection,

03:20 - 22.686 if that's something I care about.

03:20 - 25.356 And if they have a they deliberated something about it.

03:20 - 28.649 I should be allowed to find out information about why they chose not to do

03:20 - 30.694 my neighborhood or something along those lines.

03:20 - 33.397 That's my right, so that I can exercise the political process.

03:20 - 34.232 And here Mr..

03:20 - 39.203 Mr. Auerbach simply wants to inquire about what happened during Covid and the time.

03:20 - 42.573 The facts here aren't very important, but the time was very, there was

03:20 - 46.443 where we reinstituted the the mask ban when everywhere else in the city wasn't.

03:20 - 47.945 So we're just trying to find out what happened

03:20 - 49.729 to what was going on in the background there.

03:20 - 53.317 So to that point, and the

03:20 - 56.344 last thing that I just want to address, I may have touched on it,

03:20 - 00.057 I don't have any problem with the courts creating common law privilege.

03:21 - 02.426 That would be a stupid principle for me to argue.

03:21 - 06.521 I have a problem with adopting privileges that didn't exist at the time.

03:21 - 11.635 If the charter wanted to re adopt the privileges and say, hey,

03:21 - 14.805 all legal privileges would exist, now, that would be a different conversation.

03:21 - 18.166 But they've never updated the charter in the 70 successive years.

03:21 - 21.945 So when they points to the right to know law, the right to know

03:21 - 23.480 law is much more recent lol.

03:21 - 25.015 So when it incorporates legal privileges,

03:21 - 28.276 we knew what the legal privileges existed and how they acted at that time.

03:21 - 31.879 This one, the legal privileges meant something completely different.

03:21 - 35.246 The delivery process privilege wasn't even an inkling in the Pennsylvania courts.

03:21 - 38.619 It the the provision at issue in the home room charter

03:21 - 43.467 home rule charter says goes on.

03:21 - 46.336 And then at the end and it's in the trial court opinion.

03:21 - 50.998 It says legally recognized duties of confidence, comma.

03:21 - 53.911 Legally recognized privileges.

03:21 - 56.780 He missed. He he is is he misquoting?

03:21 - 00.184 He is misquoting that the the actual phrase is is legally privileged.

03:22 - 03.020 We quoted it numerous because that's where we hang our hat.

03:22 - 07.091 If you if you if you construe that literally to mean is legally privileged

03:22 - 10.284 at the time, we avoid constitutional questions of who can create privileges

03:22 - 14.031 or who can adopt, who can who can adopt privileges, statutory

03:22 - 17.391 privileges into a transparency law using the accurate quote

03:22 - 21.195 to what privileges is that referring to?

03:22 - 27.644 I believe at that point I actually I haven't thought about this.

03:22 - 30.671 It would be something about attorney client privilege.

03:22 - 34.585 I mean, I think that would probably be be the extent

03:22 - 38.446 I believe that was one of their not not, deliberative process privilege.

03:22 - 41.558 No, that the,

03:22 - 45.853 notwithstanding the historical work that the city has done in their brief,

03:22 - 49.099 the deliberative process privilege is a new privilege.

03:22 - 50.767 They've we've thrown they threw it around.

03:22 - 52.202 They talked about various things

03:22 - 56.063 and federal courts trying to to shield administrative actions.

03:22 - 00.601 But it was never something that was I mean, Vartan was controversial,

03:23 - 03.680 adopting it for the judiciary in 99.

03:23 - 08.218 It was not contemplated in the 40 years and debate that there was any deliberative

03:23 - 09.242 process, privilege.

03:23 - 14.182 Thank you very much, Your Honor, to the.

03:23 - 17.861 Thank you very, very much.

03:23 - 20.888 Very interesting and well argued.

03:23 - 24.034 Our final on bank matter is a pivotal case

03:23 - 27.728 in the realm of criminal justice under Pennsylvania's Sentencing Code.

03:23 - 31.441 Certain court costs, like contributing to Pennsylvania's crime,

03:23 - 34.602 victim compensation and substance abuse education,

03:23 - 38.206 may be imposed on criminal defendants upon sentencing.

03:23 - 42.719 Across Pennsylvania's 60 judicial districts, which are the basis

03:23 - 45.913 for Pennsylvania's trial courts called Courts of Common Pleas.

03:23 - 50.918 A judge's sentencing order typically imposes costs on criminal defendants,

03:23 - 54.255 which are then assessed by the court clerk.

03:23 - 57.301 This case begins in 2021,

03:23 - 01.329 when petitioners filed a class action in this court's original jurisdiction,

03:24 - 04.732 meaning the Commonwealth Court is the first court to hear the matter

03:24 - 08.302 against two categories of Montgomery County respondents.

03:24 - 10.948 First, the Montgomery County Court of Common.

03:24 - 13.975 Pleas the president, judge, and court administrator,

03:24 - 17.020 which you may hear referred to as respondent judicial district

03:24 - 18.255 and its officers

03:24 - 21.725 and second against respondent Clerk of Courts of Montgomery.

03:24 - 23.017 County Court of Common Pleas.

03:24 - 28.398 Petitioners are a class of criminal defendants

03:24 - 33.036 who alleged that the court class assessment policy of Pennsylvania's 38th.

03:24 - 37.365 Judicial District, which is Montgomery County, is invalid on two alleged bases.

03:24 - 43.380 First, it is ultra vires or goes beyond respondent's authority by assessing costs

03:24 - 48.809 per charge as opposed to costs per case, which duplicates certain costs.

03:24 - 52.489 Second, it fails to provide adequate notice

03:24 - 55.425 in violation of constitutional due process.

03:24 - 59.420 Critical to note here, as you're listening to argument, petitioners acknowledge

03:24 - 02.599 the Common Pleas courts are statutorily authorized

03:25 - 06.527 to impose costs upon convicted individuals in criminal matters.

03:25 - 10.140 However, petitioners challenge the methodology

03:25 - 13.134 in which Montgomery County employs that authority.

03:25 - 17.447 In their petition, petitioners asked this court to declare the policy

03:25 - 20.941 illegal and enjoin respondents from implementing the policy

03:25 - 23.920 and order respondents take affirmative action

03:25 - 26.947 of creating a new program and contacting creditors.

03:25 - 30.985 Respondents filed preliminary objections, an attempt to stop the matter

03:25 - 32.085 from reaching the merits.

03:25 - 36.190 This court overruled all but one preliminary objection,

03:25 - 40.304 which it sustained, in part finding that sovereign immunity protected

03:25 - 43.531 respondents from taking such affirmative action on state law grounds.

03:25 - 48.145 All of their claims could proceed to the merits after this court's

03:25 - 52.273 certification, that this matter could proceed as a class action in 2023.

03:25 - 55.652 The parties now appear before the en banc panel,

03:25 - 58.846 each having filed separate requests for summary relief

03:25 - 02.983 in the form of declaratory judgment, arguing their rates relief is so clear

03:26 - 06.220 the court did not fully adjudicate the merits.

03:26 - 08.332 Petitioners argue

03:26 - 11.201 that respondent's policy contravened statute, common law,

03:26 - 16.831 and constitutional rights by duplicate, by duplicating costs ultra vires,

03:26 - 20.234 and by failing to provide adequate notice.

03:26 - 24.448 Respondent Judicial District and its officers argue

03:26 - 28.385 the cost duplication claims are unfounded and maintain

03:26 - 32.947 that to the extent a policy exist, it does not violate statute or common law.

03:26 - 35.492 Respondent Clerk of Courts

03:26 - 38.428 contends that her role is purely ministerial,

03:26 - 41.956 and that she has no discretion to modify the judge's sentencing order

03:26 - 45.126 or to independently review statutes.

03:26 - 48.505 Both respondents argue that similarly situated

03:26 - 52.633 criminal defendants are not treated differently in any application or practice

03:26 - 56.780 of cost assessments in Montgomery County, and both argue

03:26 - 59.974 that adequate legislative notice is provided to petitioners.

03:27 - 03.253 Now, let's hear the final argument.

03:27 - 05.055 Yes. May it please the court?

03:27 - 05.623 Thank you.

03:27 - 08.625 Mary Catherine Roper, on behalf of petitioners, and

03:27 - 11.919 I would like to reserve three minutes of my time for rebuttal.

03:27 - 15.256 You've got it. Thank you, Your Honor.

03:27 - 19.794 This case challenges to harmful and illegal practices of the respondents.

03:27 - 23.764 The first practice is the illegal and unconstitutional

03:27 - 27.735 duplication of costs that are set by statute in criminal cases.

03:27 - 31.882 The second practice is the unconstitutional failure to provide

03:27 - 35.709 notice and an opportunity to contest the costs that are imposed.

03:27 - 38.688 Both of these practices have caused

03:27 - 42.416 and continue to cause thousands of Pennsylvanians great harm.

03:27 - 46.420 First of all, it's important to note that they're still imposing

03:27 - 48.899 these costs, these duplicative costs.

03:27 - 51.301 The class representatives have each

03:27 - 54.328 been, assessed

03:27 - 59.166 in excess of $200 over the legally assessed costs in their cases.

03:27 - 02.345 Some class members have been assessed far more

03:28 - 05.372 in, our opening brief, we talk about Mr.

03:28 - 09.610 Wettlaufer, who who was assessed 16 sets of costs,

03:28 - 14.281 amounting to over $1,400 in overcharges.

03:28 - 17.828 Some class members have paid these illegal costs.

03:28 - 23.467 Others, carry them as a balance, and are thereby prohibited

03:28 - 27.962 from seeking pardons or getting the protection of clean slate ceiling.

03:28 - 31.274 You start with the process of how this all commences.

03:28 - 34.268 Because isn't it the sense sentencing judge

03:28 - 39.816 that impose the costs originally on isn't the individual

03:28 - 45.145 then given a list of those costs and also, orally stated what the cost are?

03:28 - 49.159 No, Your Honor, what is stipulated in, in this case

03:28 - 54.488 and in fact, I think found in the class certification opinion by this court,

03:28 - 57.758 is that you at the sentencing hearing,

03:28 - 01.028 a judge will often say costs.

03:29 - 04.598 And we'll say costs on count one, costs on count three.

03:29 - 07.835 That is recorded on a sentencing sheet.

03:29 - 10.147 The judge does

03:29 - 14.084 not distinguish which cost, doesn't say the judicial computer

03:29 - 17.320 project costs on this counter, this or anything like that.

03:29 - 20.948 The judge has nothing to do with sort of which costs get imposed.

03:29 - 25.519 The only notation on the sentencing sheet is costs on two counts.

03:29 - 29.866 When that sentencing sheet comes to the clerk of Court's office,

03:29 - 34.762 it is interpreted as requiring a full set of costs on the lead count,

03:29 - 38.341 and the additional assessment of the same costs

03:29 - 42.369 for reassessment of the same costs on any additional count.

03:29 - 44.514 Mentioned by the judge

03:29 - 48.876 that as a result of a direction given by the judicial administration,

03:29 - 53.180 it is not something set forth on the, sentencing order itself.

03:29 - 58.862 There is a perfectly legal alternative way to interpret

03:29 - 02.323 a judge's order that costs be imposed on more than one count.

03:30 - 06.703 That is to impose all the applicable costs on the lead count.

03:30 - 08.438 And then you turn to the next count

03:30 - 11.841 and make sure that you impose any unique costs to that count,

03:30 - 15.836 because different offenses trigger different costs under the statute.

03:30 - 19.916 There was a ministerial when the clerk of court receives

03:30 - 23.811 the documentation and levies, the cost to,

03:30 - 28.558 Your Honor, the clerk has a ministerial duty to impose costs.

03:30 - 31.819 The clerk does not have a ministerial duty to impose

03:30 - 36.357 illegal costs, that is, costs that are not, authorized by statute.

03:30 - 40.394 In addition, the record in this case is that the clerk of court

03:30 - 44.474 makes its own determination, duplicating some costs

03:30 - 48.211 and not other costs based on the clerk of Court's own determination

03:30 - 51.672 about what costs can be imposed more than once in a case.

03:30 - 57.177 So we do have the clerk following, and administrative direction from,

03:30 - 01.558 the, the, judicial administration, but the clerk also

03:31 - 05.962 is making some of its own decisions about which costs should appear once,

03:31 - 08.989 which costs should appear twice, and so on.

03:31 - 12.826 Would it be within the discretion of the sentencing judge to

03:31 - 15.905 articulate which costs should

03:31 - 20.467 be applied, or is that, not?

03:31 - 23.937 In fact, Your Honor, the as our statutory,

03:31 - 26.974 analysis demonstrates, not.

03:31 - 28.119 First of all, the

03:31 - 32.212 the foundational principle here is that costs are creatures of statute.

03:31 - 35.883 They can only be imposed as the statute directs.

03:31 - 40.096 Who interprets how the statute directs that will in the first instance.

03:31 - 46.460 Generally, it is the clerk of courts, with the aid of the the pkms program,

03:31 - 51.207 that determines which costs ought to go on a particular case.

03:31 - 55.245 I'm not saying, a judge certainly could say

03:31 - 59.106 impose the judicial computer program cost twice

03:32 - 02.118 that would be contrary to statute.

03:32 - 06.246 And presumably that would then be an error that would be reversed on appeal.

03:32 - 09.859 But that's not what's happening.

03:32 - 13.229 What is happening is that between the judicial administration

03:32 - 16.256 and the clerk of court, they have come up with a system,

03:32 - 19.960 is duplicating this, a system that, I mean,

03:32 - 24.431 presumably every county in the Commonwealth has costs.

03:32 - 28.268 And, presumably most counties use.

03:32 - 31.514 CMS as part of the process.

03:32 - 34.541 Is this the way it's done in other counties, or,

03:32 - 40.290 Your honor, in our petition for review, we actually included a table that showed

03:32 - 43.893 how often costs were duplicated in other counties, among other things,

03:32 - 46.620 to demonstrate that Montgomery County is a bit of an outlier.

03:32 - 51.759 Very few counties duplicate costs

03:32 - 55.805 in any sort of volume.

03:32 - 58.708 And, there's no other county.

03:32 - 01.644 Now, again, we have not had litigation with other counties.

03:33 - 05.148 There's no other county in which we are aware that it is a policy

03:33 - 08.709 of the judicial district to duplicate costs.

03:33 - 13.189 And that really is it's I think why we're here today,

03:33 - 14.324 because we've got the

03:33 - 18.361 the joint action of the judicial district that the clerk of courts doing something

03:33 - 18.729 that's very

03:33 - 22.856 clearly in contravention of statute, but isn't that an appeal able issue?

03:33 - 23.900 I'm sorry. No, no. Okay.

03:33 - 28.295 Isn't that an appeal able issue of the sentence to the Superior Court?

03:33 - 32.599 Well, costs are while they're not part of the sentence, Your honor,

03:33 - 37.113 that actually is going to have me talking about our second claim,

03:33 - 40.974 which is that there's no notice, that this is happening.

03:33 - 42.986 You're not getting a sentencing sheet.

03:33 - 45.622 A sentencing sheet only says costs.

03:33 - 48.424 There is no listing of the cost.

03:33 - 50.360 The clerk of court says in its reply

03:33 - 52.595 that has started sending out a listing of costs.

03:33 - 54.464 But that's something that happened during the briefing.

03:33 - 58.992 In this, we have thousands of class members who have never received

03:33 - 04.231 from the judiciary or the clerk of courts a list of the costs assessing their case,

03:34 - 07.844 which makes it rather difficult then to appeal them to counsel.

03:34 - 11.948 So are is the issue that if a judge is fine,

03:34 - 16.343 is making a finding of guilt on two separate counts, that the

03:34 - 21.124 that the that there are fees being and costs being assessed on both counts.

03:34 - 24.685 Or is it how those costs

03:34 - 26.030 that are

03:34 - 29.823 assessed are being attributed to certain things.

03:34 - 34.637 It is that the, the clerk that the actual assessment of cost,

03:34 - 40.310 the McCann of this is that a disposition clerk in the clerk of courts office opens

03:34 - 44.714 up CPCs, opens up the case, calls up the,

03:34 - 48.651 the charges that are listed in the case,

03:34 - 53.213 and chooses on which of those charges to add costs.

03:34 - 57.084 But she can only or he can only add costs

03:34 - 01.755 or attribute costs to counts where the person has been found guilty.

03:35 - 04.267 That is the current practice, Your Honor.

03:35 - 08.262 Before 2018, in fact, costs were also assessed

03:35 - 12.332 on all costs, on all counts, when there had been a plea.

03:35 - 15.445 Regardless,

03:35 - 17.780 none of these are allowed by statute.

03:35 - 23.076 When you have a statute that says impose this cost in every case,

03:35 - 27.547 or impose this cost for the initiation of a case,

03:35 - 32.619 or impose this costs on a person who is found guilty,

03:35 - 37.333 there's there's no way to read those statutes

03:35 - 41.337 to, say, impose this cost for each of the counts in the case.

03:35 - 44.364 But but counts indicate separate

03:35 - 46.577 impact.

03:35 - 50.470 So if two counts could impact and indicate two victims.

03:35 - 51.882 Right.

03:35 - 52.916 They could, Your Honor.

03:35 - 57.520 And they and they could therefore have separate,

03:35 - 01.715 for instance, restitution requirements for, for the different counts.

03:36 - 05.728 The costs are not about reimbursing victims.

03:36 - 07.363 That money doesn't go to victims.

03:36 - 08.731 No, I understand that, but I'm just

03:36 - 11.758 I was just illustrating of why there may be two counts.

03:36 - 14.103 Oh, there could be two counts for many.

03:36 - 16.472 Many, I understand. Okay. Yeah.

03:36 - 18.341 I mean, in one case,

03:36 - 22.211 not only that, could there be two counts because there are two different

03:36 - 23.446 kinds of drugs involved.

03:36 - 27.483 Because there was also resistance during the arrest.

03:36 - 28.507 Because

03:36 - 29.753 related.

03:36 - 31.454 But you're talking two separate.

03:36 - 34.457 No, you're talking two separate crimes.

03:36 - 36.559 Two counts in my mind means

03:36 - 39.586 two counts of one particular crime.

03:36 - 42.856 So, Your Honor, the way that the cases are charged

03:36 - 47.227 is in enumerated counts.

03:36 - 51.507 And those counts may reiterate the same crime.

03:36 - 55.268 So you could have two counts that had to do with the distribution of of drugs.

03:36 - 58.848 Or you could have three counts that have to do with the district judge.

03:36 - 01.451 Or you could have one count that has to do with the distribution of drugs,

03:37 - 03.820 and another count that has to do with resisting arrest.

03:37 - 05.755 There isn't actually a breakdown.

03:37 - 09.459 I think that there there's really a misunderstanding in the language

03:37 - 10.660 when you're using the word count.

03:37 - 13.787 But okay, then I, I'm not sure what else to say.

03:37 - 14.631 That's fine.

03:37 - 15.765 It's fine. Yes.

03:37 - 18.759 And don't the sentencing judges often times

03:37 - 23.463 enter their decision and just say and cost.

03:37 - 26.743 And there's not a whole lot of explanation.

03:37 - 31.147 And in fact, yes, that is what most judges, I think in most places

03:37 - 32.949 say and costs.

03:37 - 36.543 And it falls to the clerk to then calculate those costs.

03:37 - 43.150 In fact, there are statutes that say even if the judge doesn't say and costs,

03:37 - 48.064 costs are to be imposed in the case, that is the ministerial obligation

03:37 - 53.169 of the clerk to impose costs as provided by statute, whether or not

03:37 - 56.196 the judge says that unless the judge

03:37 - 59.199 waives some costs, modifies it.

03:37 - 02.235 Have you ever sat down with,

03:38 - 05.815 the opposing parties and seek to go through each one?

03:38 - 09.919 Because I don't think anybody is looking to impose cost

03:38 - 13.780 on intentionally and try to take away property.

03:38 - 15.816 Well, Your Honor, I I'll say,

03:38 - 17.561 certainly

03:38 - 21.230 there have been many, many discussions since, the ACLU first brought this

03:38 - 24.524 to the attention of the respondents in 2018.

03:38 - 28.395 And yet this duplication of costs

03:38 - 31.998 continues, and I will say continues despite the fact that,

03:38 - 36.779 there is no response to the majority of our,

03:38 - 40.207 our statutory, interpretation argument.

03:38 - 44.111 They simply concede that most of these costs are not permitted.

03:38 - 47.623 I just want to turn for one moment before I'm done

03:38 - 50.684 to our, due process argument.

03:38 - 51.995 There it is

03:38 - 56.923 quite clear that the assessment of costs is a, deprivation of property.

03:38 - 02.472 It is quite clear under our Supreme Court's jurisprudence that pre deprivation

03:39 - 06.533 notice and an opportunity to be heard is absolutely mandatory.

03:39 - 09.612 But for a desperate a deprivation of, of,

03:39 - 13.373 property, there has been no notice

03:39 - 17.854 and it is the government's burden to provide that notice.

03:39 - 21.257 I see I'm just about out here and

03:39 - 26.462 and the idea that the, defendant can go hunting for information

03:39 - 30.733 about what costs been imposed is really not fulfillment

03:39 - 33.736 of the government's obligation to provide notice and an opportunity

03:39 - 37.173 to be heard in a meaningful time in a meaningful manner.

03:39 - 39.699 And I see that, my time is up.

03:39 - 41.744 Thank you.

03:39 - 44.738 Okay.

03:39 - 56.026 Good afternoon.

03:39 - 57.393 And may it please the court.

03:39 - 01.087 My name is Nicole Feigenbaum, and I represent the judicial respondent

03:40 - 02.032 in this case,

03:40 - 06.669 which include the 30th judicial District president, judge and court administrator.

03:40 - 10.540 There is, counsel for clerk of courts as well.

03:40 - 13.342 And we would like to split the time evenly.

03:40 - 16.712 We would ask for six minutes each with a combined

03:40 - 20.550 three minutes for rebuttal because these are of appeals.

03:40 - 22.785 Yes, yes, you have it.

03:40 - 25.354 Thank you, Your Honor.

03:40 - 27.323 Because these are at their core,

03:40 - 30.817 applications for summary relief, for summary judgment.

03:40 - 33.796 I do just sort of want to start there.

03:40 - 37.691 The facts here support summary judgment for my clients.

03:40 - 41.704 The facts demonstrate that respondent's procedures comport

03:40 - 45.441 with minimum requirements of due process, and speculation

03:40 - 47.510 about what they could do differently.

03:40 - 49.278 Does not change that.

03:40 - 52.515 The facts, when applied to very clear case law, also demonstrate

03:40 - 56.452 there's no equal protection claim here, which we've also asked for