PCNTV
Sign In Home Live Politics History 250th Sports Search Shop Donate Subscribe

ADVERTISEMENT
PA Supreme Court Session 2025-05-14

PA Supreme Court Session from Harrisburg recorded on May 14, 2025.

Caption Text Below:    

00:00 - Good morning everyone.

00:03 - This is.

00:04 - This is the biggest showing of youthful exuberance

00:08 - we have ever had in the Supreme Court of Pennsylvania.

00:11 - Welcome to our second day of our spring arguments session

00:15 - here in our magnificent Harrisburg courtroom today.

00:20 - As you may have guessed, the Administrative Office

00:24 - of Pennsylvania Courts APC is celebrating.

00:28 - Take your Child to Work day.

00:30 - Let me hear from the other children out there.

00:32 - Let me hear.

00:33 - Hey, there they are.

00:37 - I thought there were some kids out there.

00:40 - These kids are here with their parents who are employees of APC.

00:45 - Throughout the day, they will learn how the court system works

00:49 - and hopefully be encouraged to explore careers and the law to the children.

00:55 - I hope that each of you realize just how important

00:59 - your parents work is to the operation of our statewide system,

01:04 - and I hope you enjoy your activities today.

01:08 - I'm going to tell you just a little bit about the Pennsylvania Supreme Court

01:12 - and about our courtroom and then after that, I think that Mr.

01:18 - Minner is going to escort you on to your next adventure.

01:23 - The Pennsylvania Supreme Court

01:26 - is the oldest Supreme court in the United States.

01:31 - In fact, it's the oldest in all of North America.

01:36 - Our roots date back to 1684.

01:41 - We were William Penn's provincial court

01:44 - at that time, but our Supreme Court was formally established

01:49 - in 1722 pursuant

01:52 - to the Pennsylvania Judiciary Act.

01:55 - In May of, of 2022,

02:00 - we celebrated our 300th anniversary

02:04 - with a special session in Old City Hall in Philadelphia.

02:08 - Here we justices are proud of our rich history.

02:13 - We have the privilege of sitting on the bench

02:16 - in this majestic courtroom.

02:20 - This courtroom was designed in the Greco-Roman style,

02:24 - as indicated by the ionic columns and the Greek grille,

02:29 - wainscoting, all handcrafted.

02:34 - All of the wood in this room,

02:36 - including the bench where the judges sit, is made

02:40 - of mahogany imported from Belize.

02:44 - I'd also like to draw your attention to the four

02:49 - two ton bronze chandeliers.

02:53 - They're unique, and yet they're different from one another

02:58 - under the main light.

03:00 - Inside each of the chandeliers, you see the ball that is the main light,

03:05 - the white light underneath that, and inside

03:09 - the chandelier is a statue

03:13 - dedicated to four great law givers.

03:16 - To my right are the Hebrew lot of law givers.

03:21 - Closest to the bench is Moses,

03:24 - and in the back is King Solomon.

03:28 - To my left are the Greeks.

03:30 - Closest to the bench is Aristotle,

03:34 - and in the back is Solon, the father of democracy.

03:39 - The green and gold stained glass dome.

03:42 - If you look up, it's so, so pretty.

03:45 - It was designed by Alfred Godwin

03:48 - and it's one of the many domes in our state capitol.

03:51 - But this is the only stained glass dome,

03:54 - and it's only visible from inside this courtroom.

03:58 - The majesty of this courtroom

04:00 - is designed to remind all of us of the seriousness

04:05 - and importance of the work we all do here.

04:09 - Next.

04:10 - And my favorite part I draw your attention to these beautiful

04:14 - murals all around our walls.

04:19 - They were painted

04:21 - by Violet Oakley, a woman of incredible talent and vision.

04:26 - What a treasure this confluence of history

04:29 - and art provides to the people of our Commonwealth.

04:33 - The Capitol Murals project was the largest commission

04:37 - ever awarded to an American woman.

04:40 - Remarkably, Violet Oakley, a young Philadelphia artist,

04:45 - was selected for this daunting assignment at a time

04:49 - when women could neither vote nor hold elective office.

04:54 - Ultimately, she devoted 25 years of her life,

04:59 - from 1902 to 1927,

05:02 - to painting 43 murals in our Capitol.

05:06 - I trust that no one who works here takes this gift for granted.

05:11 - While there are many things that our three branches

05:14 - of government may disagree on from time to time.

05:18 - I know that our judiciary, along with our legislative and executive

05:23 - branches, all agree that we have been

05:26 - blessed with the privilege of serving the Commonwealth

05:29 - and that our lives are enriched by the beauty

05:33 - of these inspirational murals in our magnificent Capitol.

05:38 - President Roosevelt attended

05:40 - the dedication of this building in 1906, declaring this

05:46 - the handsomest state capitol I I've ever seen.

05:50 - The architect of the building envisioned this to be a palace of art,

05:55 - and in no chamber was his vision as well embodied as in this courtroom.

06:03 - On May 23rd,

06:04 - 1927, the Supreme Court of Pennsylvania convened

06:09 - to unveil the majestic Violet Oakley murals.

06:14 - Miss Oakley had been selected

06:16 - by the Capitol architect Alfred Houston in the hopes that providing

06:22 - such an opportunity might inspire

06:25 - other young women to pursue art.

06:28 - At the time, such a commission to a woman was a radical concept.

06:33 - Miss Oakley proved to be up to the task.

06:36 - Already a well-regarded artist.

06:39 - Oakley's work in this building made her world renowned.

06:44 - Oakley's vision for this room was to write

06:47 - a book on the evolution of law, and the murals in this room

06:52 - may remind you of the pages in a medieval or Renaissance manuscript.

06:59 - Senator George Horton Pepper remarked

07:01 - that Oakley's murals would remind

07:04 - the justices of their solemn duty and the advocates

07:09 - to restrain their passions and compel candor,

07:13 - and that these paintings would serve as a silent

07:17 - but convincing witness to those things

07:20 - without which we build in vain.

07:23 - The remarks from that day were published along with copies

07:27 - of this beautiful artwork in Violet Oakley's

07:30 - 1931 portfolio, Law Triumphant,

07:34 - and a copy of that book is displayed in our hallway.

07:40 - I can't tell you how happy we, as justices of the Supreme Court of Pennsylvania,

07:45 - are to welcome all of the kids here today,

07:50 - and we thank their parents for the work they do

07:53 - for our court system and for bringing the the kids to see us today.

07:57 - I hope you have a wonderful time at the Capitol.

08:00 - And, Mr. Miller, would you escort the kids?

08:03 - Thanks for coming.

08:05 - Thank you.

08:06 - Thank you. You.

08:22 - Like this.

08:24 - Great big turnout.

08:25 - Yeah.

08:31 - I think we can.

08:36 - Take an.

08:40 - That's wonderful.

08:43 - Any. Guys.

08:46 - We take. Thank you.

08:49 - Chief. Good night.

08:50 - Thank you. Thank you very much.

08:52 - Thank you for coming.

08:53 - Today I'm going to

08:56 - have fun, kiddos.

08:59 - Appreciate it.

08:59 - Great.

09:01 - Have fun.

09:07 - Thank you. Bye.

09:11 - Perfect.

09:21 - Yeah.

09:24 - Thank you.

09:30 - Well, as much as I imagined

09:32 - the kids would have love to hear a couple of Polk

09:35 - cases.

09:38 - I think they're going to have more fun.

09:40 - Moving on.

09:41 - Before our court crier calls the first case,

09:45 - I'd like to briefly remind Council of a few matters of protocol.

09:49 - Appellant's counsel, please approach the podium when your case is called.

09:53 - I will then give a short summary of the case.

09:56 - Please begin by introducing yourself and your co-counsel

10:00 - and identifying the party you represent.

10:03 - The justices are familiar with your cases, so we ask that you avoid

10:07 - any unnecessary recitation of facts or procedural history,

10:11 - and instead focus on the main issues on which we granted review.

10:16 - Counsel may rely on their briefs for particular issues.

10:21 - In cases in which there are multiple parties represented by separate counsel

10:25 - or counsel should not repeat the same argument as prior counsel.

10:30 - Please try not to interrupt the justices when we are asking you a question.

10:35 - A justice.

10:35 - This question is not meant to trip you up.

10:37 - Rather, it indicates there are particular issues we wish to explore further.

10:42 - I remind you that we do not permit rebuttal.

10:45 - Finally, while we have no set time limit for argument, I will advise counsel

10:50 - when the court is satisfied that all of its questions have been answered.

10:55 - And at that time, I will ask that you conclude your argument.

10:58 - Mr. Miller, please call the first case.

11:02 - Next up for oral

11:03 - argument is the case of Krasner v Sunday.

11:07 - This is an appeal filed by the District Attorney of Philadelphia, Larry Krasner,

11:11 - of a Commonwealth Court decision upholding the constitutionality

11:15 - of act 40 of 2023.

11:18 - Act 40 provided that the Attorney General shall appoint a special prosecutor

11:22 - to investigate and institute criminal proceedings for a violation

11:25 - of the laws of the Commonwealth occurring within Public Transportation Authority

11:29 - that serves as the primary provider of public passenger transportation

11:33 - in the county of the first class, otherwise known

11:36 - as the Southeastern Pennsylvania Transportation Authority or Septa.

11:41 - The Commonwealth Court held that act 40 did

11:43 - not violate the Pennsylvania Constitution or target a closed class,

11:47 - and did not discriminate against Philadelphia or Krasner

11:50 - or the Philadelphia District Attorney's Office.

11:52 - The Commonwealth Court also held that Krasner did not have standing

11:55 - to challenge act 40 on behalf of criminal defendants

11:58 - that may be investigated and tried by a special prosecutor.

12:02 - Krasner argues that act 40 of 2023

12:05 - unconstitutionally stripped Krasner of his power to investigate

12:08 - and prosecute crimes in the city, Philadelphia and West Power,

12:12 - and an unelected prosecutor

12:13 - to supersede in the prosecution of crimes within the jurisdiction of Septa.

12:18 - This authority granted this power solely over the District Attorney of Philadelphia

12:22 - and not over the District

12:23 - Attorney, attorneys of other counties where Septa operates.

12:26 - Krasner further argues that a district attorney's authority may be superseded

12:30 - only in an individual case upon court review.

12:34 - Krasner also claims the act impermissibly restricts

12:36 - the ability of criminal defendants from challenging the constitutionality,

12:40 - constitutionality of act 40, or

12:42 - the authority of the special prosecutor under the act.

12:46 - The Office of Attorney General makes a number of arguments in reply,

12:50 - including that Krasner is not a county officer under the Constitution,

12:53 - and thus is not conferred any special powers.

12:57 - All powers conferred are subject to legislative definition, and prior

13:00 - Supreme Court precedent confirms that the legislature may regulate

13:04 - the duties and jurisdiction of a district attorney.

13:07 - The Attorney General's Office also argued that act 40 is a general law

13:10 - not subject to the constitutional prohibition on local and special laws,

13:14 - because it applies to all cities of a particular class, the first class.

13:20 - Lastly, the office of Attorney General argued

13:22 - Krasner arguments were internally inconsistent

13:24 - and a misreading of prior precedent from the Pennsylvania Supreme Court.

13:28 - Let's watch and listen into argument in the matter of Krasner v Sunday.

13:33 - Good morning, Your Honor.

13:34 - May it please the court. My name is John Summers.

13:37 - With me are my colleagues, Andrew Nordland and Michael Massaro.

13:41 - Welcome.

13:43 - What a wonderful way to start with those children.

13:45 - I had a discussion with Mr.

13:47 - Menard, and I asked him who 30 or 40 years from now,

13:51 - in that crowd will likely be arguing, and who may be sitting on the bench.

13:58 - Good morning.

14:01 - Act 40 grants sole

14:02 - discretion to a special prosecutor to exercise preemptive prosecutorial

14:07 - jurisdiction over any criminal proceeding or action

14:13 - in which the Philadelphia D.A.

14:16 - is involved for crimes that occur within Septa.

14:23 - What I'd like to do, justice is,

14:26 - there are three baskets of arguments that we have,

14:30 - some involve, admittedly,

14:32 - issues of, first impression.

14:35 - I'd like to, move those to the second category

14:39 - and really start really with the first category of arguments,

14:43 - which are, I think, the least complicated.

14:45 - And those are that act 40 violates article three, section 32, in really two ways.

14:51 - It creates an unconstitutional special law, a closed class of one.

14:57 - And it arbitrarily singles out the Philadelphia D.A..

15:00 - Then I will move to the discussion that the acts

15:07 - putting in place a

15:09 - special prosecutor with sole discretion,

15:12 - impermissibly strips the district attorney's

15:15 - territorial jurisdiction and power to prosecute and investigate crimes

15:19 - that occur within Septa.

15:20 - And third, there are two,

15:23 - additional constitutional issues,

15:27 - those that relate to the stripping of a criminal defendant of the ability

15:32 - to raise an argument challenging the act.

15:35 - And also, the argument that drew the attention of the,

15:41 - of of of two of the Commonwealth court judges,

15:46 - namely that, this is a the act is a violation,

15:51 - of, improper delegation provision.

15:54 - Counsel, I apologize for interrupting.

15:57 - I understand the arguments, but,

15:59 - before we begin, share with me why you did not address article

16:03 - three, section 20 of our Constitution, which permits the General Assembly

16:08 - to legislature to regulate counties by population and any,

16:13 - legislation they

16:14 - deem is general legislation.

16:17 - Seem to be conspicuously absent.

16:19 - And I kind of understand that to defeat your entire argument,

16:23 - can you address that before we get into this sub issues that you've, indicated?

16:29 - Sure.

16:29 - Your Honor.

16:31 - I believe we did address article three, section 20.

16:35 - I don't have the page reference in front of me, but the

16:39 - the gist of article three section 20, is that it allows for the classification,

16:45 - based on municipalities, that is, the legislature.

16:50 - Shall have the power to classify counties, cities, boroughs and the like.

16:55 - The courts. Justice.

16:56 - Prudence is very clear, and

16:59 - I think one need only look at Justice Monday's,

17:04 - opinion.

17:05 - Just a year ago, in laying out the broad contours of the closed class,

17:11 - violations of the special laws provision.

17:15 - And article three, section 20 doesn't trump

17:19 - the closed class doctrine that has been well-recognized ensconced

17:23 - in this court's jurist jurisprudence for over 100 years.

17:27 - I apologize, are you saying our law trumps the Constitution?

17:32 - To judicially create law trumps.

17:34 - There's there's no there's no no, I misspoke if I, was thought to have said

17:39 - that article three, section 32 prohibits

17:44 - the General Assembly from enacting local and special laws.

17:48 - That prohibition.

17:50 - I got it, but article three, section 20,

17:53 - specifically says the General Assembly

17:56 - has the power to regulate counties by population and quote unquote,

17:59 - all laws passed relating to each shall be deemed general legislation

18:03 - within the meaning of this Constitution, which takes it away from a special,

18:08 - respect.

18:09 - Respectfully, Your Honor.

18:10 - No, because article three,

18:13 - section 32 prohibits, as this court has long filed,

18:18 - special laws that are closed classes of one.

18:22 - So even if nominally as act

18:27 - 40 does, uses the phrase first county, but doesn't

18:32 - specifically call out a Philadelphia, it is.

18:38 - It is without doubt a closed class of one council.

18:41 - It doesn't, aren't there?

18:45 - I can think of at least one.

18:46 - You probably can think of more,

18:49 - laws

18:50 - passed by the General Assembly that provide

18:53 - specific rights and benefits to the city of Philadelphia and the county.

18:57 - The first class that are not,

18:58 - available to other counties in the Commonwealth of Pennsylvania.

19:02 - What makes those different?

19:06 - So the answer is yes.

19:08 - There are law there.

19:10 - There are, yes, there are.

19:11 - Yes, sir.

19:12 - Self laws that Philadelphia does benefit from being a county of the first class

19:16 - with regard to laws that allow them to do things that other counties can't.

19:19 - There are laws that the General Assembly enacts that are constitutional,

19:24 - that reference counties to the first class. Yes.

19:29 - However, those are open statutes.

19:33 - That is, there could be other provisions, other constitutions, excuse me,

19:37 - other, counties that could become first county,

19:42 - first class counties in time,

19:45 - unlike differentiates from 6108 carrying a firearm,

19:50 - on a public street or property infill adelphia that a special law.

19:57 - It is a.

20:02 - It's exclusive to

20:04 - feel that everybody in this commonwealth can carry a gun on their street.

20:07 - Except our residents in Philadelphia.

20:10 - Now, if that's not a special law, then

20:13 - how is

20:15 - the act 40, the special law prohibition

20:20 - that the Constitution in article three, section

20:23 - 32, prohibits is a closed

20:28 - class that restricts and limits

20:32 - the powers of a locally elected official.

20:38 - Those the cases that you're talking about don't purport to do that.

20:42 - Here.

20:42 - We have a democratically elected district attorney,

20:48 - and we have a statute act 40,

20:52 - that preempts his jurisdiction.

20:56 - It is restrictive.

20:59 - It prohibits and it puts in place a statewide attorney

21:03 - general designee over the local elected district attorney.

21:08 - That makes that law a different kind of special law.

21:12 - Let's make sure it isn't the real distinction, not what you just said,

21:18 - because that doesn't really find purchase

21:20 - in the language of the Constitution isn't the answer to the question.

21:25 - Article nine, section 30 B,

21:30 - which, which allows

21:33 - local and special laws relating to

21:37 - Philadelphia.

21:38 - And don't you have to defeat

21:41 - that provision to prevail on this argument?

21:45 - Yes.

21:46 - And I was going to address the role of 13 B.

21:50 - Look, the the reality is that the article nine provision

21:56 - that were enacted in 1951 as part of the development of Home Rule,

22:02 - and provided that the goal was to unify the government of Philadelphia

22:06 - so that it could exercise the powers that came with Home Rule

22:10 - and that's a provision,

22:13 - as is 13 F, that's a part of it.

22:16 - And the purpose of those laws, of those rules

22:20 - was to allow for the consolidation, the creation of Philadelphia offices.

22:25 - And so there could be a special focus on Philadelphia

22:29 - to facilitate home rule.

22:32 - This law, act 40 is the opposite.

22:34 - It's anti how wrong.

22:36 - It's taking away the powers

22:39 - of a, Philadelphia officer.

22:42 - Look, in 1953, the General Assembly passed precisely

22:46 - the kind of law that is intended and permitted by justice.

22:51 - Doctor, the provision you referenced, section

22:54 - one of the City County Consolidation Act of 1953.

22:58 - It says that the purpose of the act is to carry out the intent

23:01 - and purpose of the consolidation amendment,

23:04 - i.e., section 13, by enabling

23:07 - the Council of the City of Philadelphia to act with respect to offices.

23:11 - But look at act 40. Act 40 doesn't do that.

23:14 - It didn't do it at all. Its anti home rule.

23:17 - Far from enabling Philadelphia home rule, if we can said

23:20 - it takes power from the city of Philadelphia and its voters and places

23:24 - that power in the hands, an unelected special prosecutor is allowed to do that.

23:29 - I mean that there is nothing in our Constitution, or is there

23:35 - that says the General Assembly must, in all circumstances, be pro home rule?

23:40 - In other words, there you can only be a home rule municipality.

23:45 - To the extent the General Assembly says you can be a home rule municipality,

23:49 - they can step in at any time and cut you back as well as empower you.

23:53 - Am I wrong about that? Well,

23:56 - not cut you back in a way

23:58 - that's part of a scheme that is creating a closed class.

24:02 - That's number one.

24:03 - Number two,

24:06 - the the force behind

24:08 - those home rule, provisions was to abolish

24:13 - certain county offices to allow them to be city offices.

24:18 - Well, you you've you've said that,

24:21 - and I think that's interesting

24:24 - how doesn't the language do we get that

24:27 - from the actual language, or do we have to glean some intent beyond the language?

24:32 - Because the language seems to that's what's going to guide the decision here.

24:36 - And I think the language is just as well read.

24:38 - It doesn't doesn't give those nuances that you're

24:42 - trying to to put on it.

24:45 - The, the text of the provision needs to be read with

24:50 - and in conjunction with the structure

24:54 - and what was being accomplished and sought to be done.

24:58 - I think there isn't any doubt about what the text, the ambiguous, the text,

25:06 - I think

25:06 - there's some frankly, you're on 113 B, there's some

25:10 - there is some ambiguity about what the scope is.

25:13 - It says local special laws regulating the affairs of the city of Philadelphia

25:17 - and creating office or prescribing the powers and duties

25:21 - and officers of the city of Philadelphia shall be valid,

25:23 - notwithstanding the provision of section 32 of article three of this Constitution.

25:28 - That's what the text is now.

25:31 - It is it is the heading for article nine,

25:34 - section 13 is abolition of county offices.

25:37 - Okay. So now if we ignore the heading

25:40 - that's in the Statutory Construction Act, we ignore the heading.

25:43 - Let's look at the words.

25:44 - Let's look at the words.

25:45 - What is ambiguous about the words?

25:47 - I think the

25:50 - the act act 40 is a law

25:54 - that focuses on the regulation

25:59 - of the Septa special prosecutor.

26:04 - Now, I acknowledge that

26:06 - it has an impact on the affairs of Philadelphia, obviously.

26:09 - So I don't want to I don't want to, suggest otherwise,

26:14 - but does it regulate the affairs of the city of Philadelphia?

26:18 - It's somewhat inconsistent with the other part of your argument

26:20 - that this is clearly all about stripping, Mr. Krasner.

26:23 - Well, it's clearly about stripping him of jurisdiction.

26:27 - The question is

26:28 - whether he's an officer of the city of Philadelphia or is the Commonwealth.

26:32 - And and I think I think that's fair.

26:36 - I think there's some ambiguity in the,

26:39 - in the lead up to by this court, to that issue.

26:42 - I think the fairer reading, I acknowledge is that he is probably a city officer

26:48 - rather than a county officer, given the the Home Rule staff.

26:52 - Then you lose that argument.

26:53 - I think the ambiguity is, is is a is a very modest one.

26:59 - I think the text, one of the principles and canons of construction, you know, this

27:04 - is that you can't accomplish through a textual reading,

27:09 - something that is counter to what the purpose was of the law was.

27:14 - That cannot.

27:17 - Where is that canon?

27:19 - I don't have the citation, but I'd be happy to provide it.

27:21 - Didn't you just tell it?

27:22 - You're telling us that we we just

27:25 - we disregard the language in pursuit of the Spirit Act. Of.

27:29 - Of course, it turns the canons on their head, right.

27:32 - I think I we don't disregard the language.

27:35 - We read the language in conjunction with other provisions.

27:38 - And the other provisions are the provision that prohibits special laws.

27:43 - And so the prohibition

27:46 - against special laws and the creation of a closed county.

27:49 - Just just think of the consequence of what this could go unchecked.

27:55 - The General Assembly could enact a law

27:57 - that says in Philadelphia, we're going to replace the police,

28:01 - we're going to replace all labor laws, and we're just going to do what we want.

28:07 - And only in Philadelphia, that's not what article nine, section 13 was about.

28:13 - Well, they can basically do whatever they can eliminate municipalities.

28:18 - I beg your pardon, your Honor.

28:19 - The General Assembly can eliminate municipalities.

28:22 - Can they not?

28:24 - Well, when it comes to A00 and this will take me to the,

28:29 - second argument, when it comes to a locally elected

28:33 - district attorney, respectfully, no,

28:37 - that is a quasi judicial officer.

28:39 - That's not something in the scope of what the General Assembly, can do.

28:44 - No, I'm not suggesting they can cut somebody's elected term of office short.

28:49 - We're limited to I don't know where we're getting this quasi judicial aspect.

28:52 - But the the point is,

28:55 - that, under article nine, section

28:58 - 13, they, they appear to have the constitutional power

29:03 - to monkey around with Philadelphia officers.

29:08 - I'm not sure how you can maintain otherwise.

29:12 - Your honor, in Ray Shelley, which is the second part of my argument,

29:16 - and that that line of cases is

29:19 - where I get as a judicial officer, where the Supreme Court

29:22 - has recognized that a district attorney is different from other, positions.

29:26 - It's different from, sewer commissioner or a school board

29:32 - or other entities by virtue of the powers that a district attorney has.

29:36 - We said it was a quasi judicial officer

29:39 - to say that this court said that in in racially

29:44 - showing there's some funny old cases.

29:46 - I remember when I was register Wills quoting to a court

29:50 - that an old case of this court that said the register of wills is a judge,

29:54 - and boy, did I get hell for that.

29:58 - Well justice things

30:00 - justice stern I my authority is just as stern and,

30:04 - and among the great justices on this court

30:07 - who, who, who identified the district attorney,

30:13 - a district attorney, as, being a quasi judicial officer.

30:16 - I beg your pardon?

30:18 - What year was that in racially?

30:20 - 1938.

30:22 - And so you've got a lot of history that happened since 1938,

30:25 - in the Commonwealth of Pennsylvania, with regard

30:27 - to the amendments to the Constitution, the Commonwealth Attorneys Act,

30:31 - that was a different time in Pennsylvania, constitutionally.

30:35 - And the structure of law enforcement and the powers exercised

30:39 - by the General Assembly, and I think Shelly, factually, was an effort

30:44 - to give powers of an elected official to an unelected official here.

30:49 - You can't dispute that the attorney general is elected to

30:52 - by the all the people of Pennsylvania, including the people of the county.

30:55 - The first class.

30:57 - I think the weight of the historical developments

31:00 - is favorable on this question rather than unfavorable.

31:04 - Let me turn

31:07 - if I could, to, the second set of arguments,

31:12 - which which relate to,

31:15 - that, this court in the lower courts have long held

31:19 - the DA's power may be superseded only where one the district attorney

31:25 - has a conflict of interest or is engaged in some kind of misconduct.

31:29 - And two, that the super session is reviewable by a court.

31:34 - I, I think in Ray Shelley is a foundational case in 1938.

31:40 - That case involved a situation where there was an act that granted the

31:45 - then appointed attorney general

31:47 - absolute discretion to superseded a district attorney.

31:50 - And there the attorney general attempted to supersede the Dauphin County D.A.

31:55 - who was investigating charges against the sitting governor and other officials.

32:00 - In a 6 to 1 decision, Justice Stern's opinion held that the law required

32:04 - some limiting construction on absolute discretion.

32:07 - That's what we have, an act 40.

32:09 - That was before the Commonwealth Attorneys Act and the Commonwealth Attorneys Act

32:12 - precisely sought to embody

32:16 - what was in in Ray Shelley, in subsequent cases in restricting

32:21 - the authority of the attorney general to preempt,

32:25 - and supersede a

32:26 - district attorney in the significant respects here, one

32:30 - under the attorney and the Commonwealth Attorneys Act,

32:33 - there needs to be some finding of misconduct or thought to be misconduct.

32:37 - You're missing the point, counsel, is, is in Ray Shelley

32:40 - did not stand for the proposition that the General Assembly

32:43 - can't pass a law that that that provides for sue possession.

32:48 - There was no law that provided for sue procession, as I remember it.

32:52 - And then Ray Shelley, by an elected official, by an unelected,

32:58 - unelected appointed prosecutor

33:01 - that this law is

33:03 - at least I see it is similar to the Commonwealth Attorneys Act,

33:06 - where you're vesting prosecutorial authority specifically as between the two,

33:12 - the local law enforcement body and the statewide law enforcement body,

33:16 - both elected officials investing in and one versus the other.

33:21 - Respectfully, I disagree in multiple respects.

33:24 - One, as to the details of in Ray Shelley I've learned in life,

33:28 - when we're talking about specific cases, I know when we wrote the brief,

33:33 - we were careful

33:34 - and I would defer to exactly how we characterize things in the briefs.

33:37 - But I have a very strong recollection that in Ray Shelley involved a statute.

33:43 - I agree with you. I agree with the statute.

33:44 - Otherwise I missed the statute required absolute.

33:47 - Having said that, the Attorney General

33:50 - has absolute discretion, and that was the fatal defect

33:54 - that Justice Stern identified, and that is the fatal defect in act 40.

33:57 - That's number one.

33:58 - Number two, the Commonwealth, other than act 40

34:03 - has and the General Assembly have enacted a whole set of laws

34:07 - that allow for the an attorney general and a district attorney

34:11 - to sit side by side and work cooperatively with each other.

34:16 - One of those examples, relates to a gaming act,

34:20 - the unfair trade practice laws.

34:23 - Another example, and your Honor,

34:26 - so is the Commonwealth Attorneys Act, because what that provides for

34:31 - is very limited super session, not the kind of super session

34:35 - that is in act 40, but rather

34:38 - super session by an attorney generally only

34:42 - where a there's some identification of some conflict of interest

34:47 - or some kind of, misconduct by a district attorney

34:52 - and be it is subsequently presented to a court

34:57 - for a cross-check.

34:59 - That's what that act says here.

35:02 - Act 40 bulldozes right over those limitations.

35:06 - So does that make it,

35:08 - constitutionally, facially unconstitutional?

35:13 - I mean, certainly Shelley and Schwab stand for the proposition that there is

35:17 - some proceeding that takes place when super session is asserted,

35:24 - so that the, discretion can be checked.

35:27 - I mean, and obviously in Shelley, there were no statutory standards here.

35:34 - There are I mean, the statutory standard is, in Septa.

35:39 - So, I mean,

35:41 - how does this work?

35:42 - I mean, dicey, special prosecutors

35:46 - go to a court and say we're,

35:49 - a superseding the, district attorney in this matter

35:53 - that occurred at such and such a place at such and such a time.

35:57 - No, it does not justice Donoghue.

35:58 - And that is what makes it unconstitutional.

36:01 - Well, but can we get into it without calling it facially unconstitutional?

36:06 - That's what that's what, Shadegg

36:10 - here. That's what shall we did?

36:12 - Yeah, it's facially unconstitutional because it doesn't provide

36:16 - for that kind of either a stand and he standards,

36:20 - that is act 40 doesn't and B and doesn't provide for any judicial review.

36:25 - And it's actually worse than the statute in Shelley

36:29 - because what I'll get to at the end, which is

36:33 - that criminal defendants are actually prohibited from bringing the challenge.

36:37 - Well, that's I think you go too far.

36:39 - They're they're very limited.

36:41 - They can bring a challenge to the authority.

36:44 - But I don't know that they can't bring a jurisdictional challenge

36:48 - or two different things.

36:49 - I mean, if, if, if the, AG,

36:52 - exceeds the parameters of whatever intercept the means,

36:57 - certainly a challenge can be brought to the jurisdiction.

37:01 - You know, to hear that type of to handle that type of, case,

37:08 - I think the

37:11 - authority I understood of the restriction

37:15 - and the prohibition against challenging the jurisdiction included.

37:19 - So this is challenging the authority.

37:20 - Challenging the authority. Correct?

37:22 - Included challenging the authority.

37:24 - So, so the prohibition against challenging the authority makes it worse

37:29 - than the kind of Shelley prohibition, except that I know you. You.

37:34 - That's another argument you have obviously.

37:38 - But with respect to that other argument, that would be a challenge.

37:41 - Not before us in some in some particular criminal case,

37:46 - a defendant would come before us and challenge that provision, it seems on.

37:50 - Right.

37:51 - But what can I come back to the Shelley

37:54 - argument and yes, for me,

37:57 - wouldn't it be anomalous

37:58 - that, that the constant

38:02 - on the one hand, the Constitution provides in case law validates that

38:06 - that the General Assembly is free at any time did

38:09 - to alter our jurisdiction, this court's jurisdiction.

38:12 - Right.

38:12 - So, you're standing in front of us

38:15 - and telling us that that,

38:18 - the General Assembly, with the governor's approval, cannot, cannot,

38:23 - supersede aspects of a district attorney's jurisdiction.

38:28 - How did how does that work?

38:31 - And particularly in light of the fact that Shelley and Shaw were decided

38:35 - at a time when the attorney general was not an elected official?

38:41 - Well, I, I if I understand your question

38:44 - correctly, I think it presupposes something.

38:47 - If the General Assembly said that the

38:52 - this court has no jurisdiction over cases

38:57 - arising out of Philadelphia.

39:02 - That's not constitutional.

39:04 - They can't do that.

39:07 - Likewise, if it abolished all courts of Common pleas in Philadelphia,

39:11 - I think that's also something that would be not permissible.

39:16 - And so I think that was the predicate of your question.

39:20 - And so I think it applies with respect to district

39:23 - attorney's.

39:26 - If I may just

39:29 - return to your ripeness point

39:32 - with respect to the challenge.

39:36 - There were challenges

39:37 - brought to, da Krasner standing,

39:42 - maybe also ripeness,

39:43 - but standing with respect to raising these challenges.

39:47 - And, the Commonwealth Court was persuaded that he had standing

39:50 - and things were sufficiently ripe because of the imminent possibility

39:55 - of an interference within a prosecution.

39:59 - That is, there's a crime that could occur on

40:03 - Septa within Septa, whatever that means.

40:06 - Okay.

40:07 - And then the district attorney begins

40:10 - to investigate,

40:13 - may bring charges.

40:15 - And at any time that authority

40:17 - could be taken away for any reason and unchecked.

40:21 - And that amounts to a interference ongoing.

40:26 - Now, I will allow it is true that in the that one of the things we've learned

40:31 - and it's in our papers, what's the what's

40:34 - been the history of this law?

40:37 - Well, since the law went into effect, I can point to three things.

40:42 - One, crimes plummeted, but the special prosecutor

40:46 - hasn't done anything, and serious crimes have fallen by 33%.

40:51 - That's their citations to that, to the source of that.

40:54 - But not because the special prosecutor's done anything.

40:57 - I mean, the reality is there are exogenous external things that affect affect

41:02 - what's going on, with crime, not, other things, but crime has fallen.

41:08 - Special prosecutor actually hasn't done anything.

41:11 - And as we've cited in our papers, interviews,

41:15 - either with the Septa chief of police

41:19 - or with the special prosecutor, SEPs pretty satisfied

41:23 - with what District Attorney Krasner is doing now.

41:28 - The ripeness point comes

41:30 - from the problem posed whenever there's going to be

41:35 - any interference there, the D.A.

41:40 - can raise the claim because his jurisdiction has taken.

41:43 - He's not asserting it.

41:45 - The constitutional right of a criminal defendant,

41:49 - but rather he's leaning on the fact that there are constitutes two.

41:53 - It's really two constitutional rights that we say it's the, the defendant's

41:58 - right to, state, and present arguments, as well as the separation

42:03 - of powers argument that it's not for the General Assembly

42:07 - to say that a criminal defendant can't raise a challenge to the court.

42:12 - It's up to a court to decide, what it can hear and what it can't hear.

42:17 - What can we rely on?

42:19 - Competent, zealous counsel for those future defendants

42:23 - to vindicate their claims?

42:24 - Doesn't the district attorney have enough to do representing the Commonwealth

42:29 - and not trying to project what the interests of the defendants are to.

42:33 - He's not protecting the interests.

42:35 - What he's protecting is the orderly prosecution.

42:38 - Because if we have a situation in which

42:42 - someone is charged,

42:44 - someone is convicted,

42:47 - and then it's overturned

42:49 - because of an improper

42:52 - act, 40 restriction on a right,

42:55 - there may be a double jeopardy problem.

42:58 - He may never be able to charge again.

42:59 - Counsel, that happens in every case.

43:01 - I beg your pardon?

43:02 - That happens in every case,

43:05 - not every case.

43:06 - This case is

43:07 - is totally there are not other cases that we've uncovered that have ever sought

43:11 - to strip a district attorney of these kinds of powers and interfere.

43:15 - You were told about a criminal defendant right, to file an appeal and

43:18 - and maybe face double jeopardy challenging that particular case

43:23 - that happens in every single criminal conviction.

43:26 - It's always a superior court.

43:27 - And and it can come up in front of us and out of the corner.

43:30 - That's no different than any other case, right?

43:32 - It's always the case that the rules governing double jeopardy

43:37 - would govern any appeal and prevent a

43:41 - or affect a subsequent prosecution.

43:43 - What's different here is that strike, in fact, that

43:49 - the person that is, that the entity that is creating the difficulty

43:53 - with the prosecution is the General Assembly's law,

43:56 - and it's the General Assembly's law that's creating the,

44:00 - the interference with what, with Da Krasner shop.

44:05 - And that's what makes it different.

44:09 - The the council.

44:12 - Can I just ask? Yes.

44:14 - Where am I going to find a job description for Da

44:17 - Krasner?

44:28 - Yeah.

44:28 - I kind of.

44:32 - Well.

44:34 - One partial answer, and I, I, I would need to think about it longer

44:38 - to think about what city document there may be that describes it.

44:43 - And I'm not I don't have at my fingertips what that is.

44:47 - But I think for starters, the answer is look at the wealth of the law

44:53 - that this court in the lower courts have issued on what a district attorney does.

44:58 - That is we wouldn't we?

44:59 - There is no dispute, but the district attorney

45:01 - is an extraordinary officer different from all others.

45:05 - No, no, no, dad, I'm asking but but so so you've given a couple answers.

45:10 - One, you haven't said the Constitution.

45:15 - You haven't set a statute.

45:17 - You've you've sort of referenced city documents.

45:22 - Well, but then you've said common law.

45:23 - So in your view, it's city documents in common law that are going to tell me

45:28 - what the duties of, of the district attorney of Philadelphia are.

45:31 - I think I think that,

45:34 - doesn't fully account for my answer.

45:38 - Okay.

45:39 - And, and and here's why.

45:42 - The Septa in its brief concedes the Da.

45:45 - Krasner is a constitutional officer,

45:48 - number one.

45:49 - Number two cases from this court

45:52 - repeatedly say that the district attorney is a constitutional officer

45:58 - whose duties are up.

46:01 - There are a lot of cases that describe what the duties are.

46:05 - He's the chief law enforcement officer for a jurisdiction.

46:09 - He's responsible for enforcing

46:12 - the Commonwealth's criminal laws and some civil laws.

46:16 - He has the discretion in investigation, in charging,

46:21 - and is given the heavy responsibility

46:24 - of implementing the law by holding trials.

46:28 - So those are all things.

46:30 - Is there a, HR department document that lists or some other, list?

46:36 - I'm not aware of it, no, but you can see that it's not in the Constitution.

46:41 - Well, it's not in the statute.

46:42 - Well, except for any statute like the state police that some,

46:47 - some jurors,

46:47 - the Commonwealth Attorneys Act, certainly references

46:49 - the district attorney, but there's no unlike,

46:52 - some counties of the county code

46:54 - provisions that list the duties and obligations of certain officers.

46:58 - There's nothing you can point to.

47:00 - Visa that has a has a duties responsibility section for the district attorney.

47:07 - The Constitution I acknowledge doesn't but it doesn't list the.

47:11 - I think other than the governor, I'm not sure it lists the duties of anybody.

47:15 - I'm not sure your duties are in the Constitution.

47:20 - I'd have to think about what statute might identify what your duties are,

47:24 - but that doesn't mean you don't have duties.

47:25 - And that doesn't mean our statute should identify our jurisdiction.

47:28 - I think if our statutes that identify our jurisdiction.

47:32 - Yes.

47:33 - And and, your honor

47:34 - keeps returning to the attorneys, the Commonwealth Attorneys Act, the

47:39 - Commonwealth Attorneys Act demonstrates why act 40 is unconstitutional.

47:44 - Okay.

47:45 - As we've argued in our briefs,

47:48 - the Commonwealth Attorneys Act

47:50 - embodies the long line of cases

47:53 - as to the constitutional authority and powers

47:56 - of of a district attorney.

47:59 - And that law has real restrictions on the ability

48:06 - of the attorney general to supersede if those restrictions, I submit,

48:12 - if those restrictions were enacted, 40, we might not be here.

48:18 - Doesn't this specific prevail over the general?

48:22 - So to the extent you're correct about the entire super session,

48:27 - flavor of the Commonwealth Attorneys Act,

48:30 - wouldn't that be trumped by act 40,

48:33 - which appears to manifestly legislate of

48:37 - and gubernatorial will, with respect to the set of cases?

48:43 - No, because I think

48:45 - the Commonwealth Attorneys Act reflects

48:49 - the constitutional role of a district attorney.

48:52 - We have some statutes that are

48:54 - quase unconstitutional, and they prevail over other statutes.

48:58 - We have we I, I wouldn't use the phrase

49:01 - quasi I constitute shall I

49:04 - let me try judicial de and equates I constitutional Commonwealth's Attorney.

49:08 - Well look far be it for me to argue with justice Stern okay.

49:12 - Those are his those are his words and I, I role with those at any time.

49:16 - Okay.

49:17 - As to the specific in the general.

49:22 - The Commonwealth Attorneys Act

49:26 - isn't just another statute, right?

49:29 - It's a statute that was enacted

49:32 - in the wake of these cases about the district attorney's office.

49:36 - And it is part of the constitutional shadow of the role of a district attorney

49:42 - now. And I say that not to say that,

49:45 - that the Commonwealth Attorneys Act is a concept

49:49 - is an article of the Constitution, because it's obviously not.

49:52 - But it I think the fair reading of the case law and we lay it out in detail,

49:56 - is that the constitutional excuse me, that the Commonwealth Attorneys Act embodies

50:01 - those constitutional provisions and so that I'm not pointing.

50:05 - So when I say there's a conflict between the Commonwealth Attorneys Act

50:09 - and Act 40, it's not that one

50:14 - General Assembly Act can nix another one.

50:20 - It's that the Commonwealth Attorneys Act embodies a higher and broader

50:23 - principle that act 40 plainly violates.

50:27 - I mean, there's never been a law like act 40.

50:30 - There's never been an attempt

50:32 - to go stripping, just

50:34 - a local district attorney of authority like this.

50:38 - And it's a head scratcher

50:40 - to try and think about how that is remotely possible,

50:45 - given the role of a, of of a local district attorney.

50:51 - I mean, we do have laws that strip local elected officials of

50:54 - of power.

50:57 - A district attorney,

51:00 - A is elected as the, amicus brief, I think, made very clear.

51:05 - So as a school board, we have laws that strip them of power.

51:08 - So do municipalities.

51:09 - We have laws that strip them of power.

51:12 - And in our framework,

51:16 - district attorney is on a different plane, and I'm, I'm I started by saying

51:21 - I'm leaning on in Ray Shelley and and and in those cases.

51:25 - But that's what our mayors.

51:27 - I mean, I pick a party higher than the power of elected mayors.

51:30 - I mean, there there are, there are acts

51:33 - that our General Assembly has passed with gubernatorial approval.

51:38 - Superseding and, significantly

51:41 - restricting the powers of elected mayors and city council.

51:45 - Act 47 in Pittsburgh,

51:48 - the Chester the Chester situation and on and on and on.

51:53 - I mean, the legislature gets to do, stupid things as well as wise things.

51:58 - I, I'm not sure how your repeated,

52:03 - invocation of the district attorney is some sort of, person.

52:08 - Above all, it is convincing.

52:10 - Well, I think there are two answers.

52:13 - I think the and the answers are embodied in an act 41.

52:18 - I under our under the jurisprudence.

52:22 - I'd say it's one under judges and above mayors

52:25 - and I mean, I think just putting it right out there when you look at

52:29 - what the case law and that's what is meant by quasi judicial officer,

52:34 - the legislature that that's I think that's that's number one.

52:38 - Number two.

52:39 - But singling out in a closed class, as this court has repeatedly

52:44 - said, is per se unconstitutional, I mean, per se unconstitutional.

52:49 - See, I think that's your strongest argument.

52:51 - That's, you know, you still got article nine, section 13 to deal with.

52:55 - The framers put that Philadelphia specific provision in there.

53:01 - And you did concede, I think, that

53:03 - the De is a City of Philadelphia employee.

53:06 - You didn't bite on the

53:07 - was that judge Wolff who said it's the Commonwealth or was it some.

53:11 - Yeah, yeah. I just,

53:13 - I take my

53:16 - obligations, seriously

53:18 - as to where I think the, the arguments, shake out.

53:21 - I look, I think that it would stand

53:25 - those constitutional amendments and, on their head

53:30 - to use the constitutional amendments that were designed

53:34 - to facilitate the creation of Home Rule two,

53:38 - strip the home rule, to strip Philadelphia those authority.

53:41 - That's just not what any of those laws were about.

53:45 - And I don't think there's any real actually contest about that.

53:48 - I think

53:48 - if you looked at the legislative history and the constitutional history that we

53:52 - we have cited, if you look at the subsequent laws that are that

53:56 - that have happened and you look at this extraordinarily unprecedented,

54:02 - there hasn't been another case like this.

54:04 - I mean, this is an extraordinary act, that's been done.

54:07 - And I think I, I acknowledge

54:12 - the textual point,

54:14 - but that is interpreting that text beyond the breaking point of it.

54:19 - And it's not as if there's a simple little remedy,

54:23 - you know, if if your honors are interpreting a statute

54:27 - and are just dead on

54:30 - in interpreting the text of a statute,

54:33 - literally as you as someone might think, there's somebody here,

54:37 - the General Assembly, to fix it and say, you know, you you looked at it.

54:42 - Not so with the consent of constitutional amendments.

54:45 - I mean, it's way more,

54:47 - that process is way more in amber.

54:51 - And so there's more room,

54:55 - for the court in doing its review and its textual analysis

54:59 - to recognize what this is really about

55:04 - and how, this is an anti home rule, not a pro home rule.

55:09 - And it seems like that seems I mean, I've never heard that argument before.

55:15 - That seems like a scary proposition

55:17 - that we can look at the clear and unambiguous provisions

55:21 - of a constitution, constitutional provisions.

55:25 - And we can look past that

55:29 - clear and unambiguous language and divine.

55:33 - What it was about, and then give an interpretation that is intention

55:40 - with the text,

55:41 - because it was about something else.

55:45 - Respectfully, I think the I think,

55:50 - there are many, many,

55:52 - decisions interpreting the First Amendment says Congress

55:56 - shall pass no law but everybody if restricting freedom of speech,

56:00 - every note everybody knows it also applies to the president

56:04 - and article one such as Congress.

56:06 - I mean, there are there are many, many instances

56:09 - in which there, that that courts,

56:13 - allow for a more or less tacitly

56:16 - than one might others in, in interpreting

56:19 - to, to address it.

56:24 - Let me let me go

56:26 - with, a final point, which is been,

56:31 - which was highlighted in, Judge

56:33 - Fasano Cannon's,

56:37 - dissent, that also commanded,

56:39 - judge, conjugal here, which was that act for his delegation

56:45 - to the special prosecutor of preemptive, jurisdiction over all crimes

56:49 - within Septa violates the non delegation doctrine.

56:53 - We did not burden the breaks with an extended discussion of this,

56:58 - because the discussion in the opinion was, was so clear,

57:04 - she, she,

57:06 - she found that there are two fundamental limitations on legislative power.

57:10 - They've got to take General Assembly's

57:13 - a basic policy duties, and there can't be

57:16 - and there must be with legislation, adequate standards.

57:20 - And she held that act 14 reference to crimes within Septa

57:24 - is impermissibly vague, in effect giving the special prosecutor

57:28 - unfettered discretion with no guidance from the legislature.

57:32 - And, we believe that, to be true.

57:36 - So, I will rest on the balance of the briefs.

57:40 - There are other of which I'm happy to entertain.

57:42 - Any questions?

57:43 - There are other components

57:45 - to equal protection analysis, namely that act 40 was arbitrary.

57:49 - And if I could maybe if I could just give one quick,

57:51 - focus on that.

57:54 - The special law prohibition

57:58 - has really two components to it as we, presented it.

58:01 - One is there's a per se violation where there is a, closed class of one

58:07 - that's created and, indisputably, this is a closed class of one.

58:13 - But there's a second,

58:14 - problem, which is a more traditional kind of equal protection notion.

58:19 - And that notion is that,

58:21 - there needs to be a non arbitrary reason

58:25 - for the, provision.

58:28 - I guess that is notional because the words equal protection

58:32 - and or they don't appear in our Constitution, do they

58:38 - know?

58:38 - But the whole case law from this court, Justice Stern also.

58:43 - But but is it time for this court to,

58:48 - use the language of our own constitution,

58:51 - which is much longer than the US Constitution?

58:54 - And and and

58:57 - maybe be a little more humble about just grabbing

59:00 - terms from the US Constitution that don't appear in our own.

59:05 - Why do we need the term equal protection when

59:08 - we have clear language about special laws that you've been arguing about?

59:13 - Well.

59:16 - The equal protection principle

59:20 - is different from a special law principle

59:24 - in the sense that in the in this second component,

59:28 - which is that the equal protection component is,

59:34 - is that the General Assembly has a wide range of authority

59:38 - of enacting legislation, but it can't do it in an arbitrary way.

59:43 - And that's important and that's foundational.

59:46 - And it would seem to me extraordinary for this court

59:50 - to depart from its long, long history of embracing that notion that,

59:55 - along with this case, you know, maybe I'm more amenable to departures. But,

59:59 - 133 you know, we have article one, section 26, the nondiscrimination provision.

01:00 - 08.004 So if you're arguing about discrimination,

01:00 - 10.707 why don't you just argue about discrimination?

01:00 - 14.077 And then, you know, you've got your argument about special laws.

01:00 - 18.481 Why grab out a notion of equal protection?

01:00 - 22.418 I guess the answer to that is this court has has encouraged you to do so.

01:00 - 26.322 I mean, you know, as a lawyer,

01:00 - 29.792 we we tend to take the law as it comes to us.

01:00 - 33.496 Far be it from me to be at the cutting edge of saying

01:00 - 37.934 justices to overturn a hundred years of precedent.

01:00 - 39.936 That's Well-settled council counsel.

01:00 - 42.872 We signaled it's Justice Donohue gets.

01:00 - 43.406 Thank you.

01:00 - 47.176 We we signaled an issue with, section 32

01:00 - 50.213 and Allegheny Health, network

01:00 - 54.250 signaled that we weren't going to address it

01:00 - 57.754 because of the briefing in that case, but they certainly,

01:00 - 02.225 it's construction needed attention from the court in the bar.

01:01 - 07.263 So, I mean, you know, that was a that was certainly a signal

01:01 - 10.800 that maybe somebody should rate one of the the parties in this case

01:01 - 13.536 to actually race at issue.

01:01 - 15.471 Yes.

01:01 - 17.974 That was that that was a signal,

01:01 - 20.610 I think if I were a more careful student

01:01 - 24.047 of an even more careful student of this court, I'd see that there might,

01:01 - 26.349 there might have there might be often signals

01:01 - 29.318 of a variety of kind, but that doesn't mean we take it up every time.

01:01 - 33.122 I think this is a this is a foundational notion.

01:01 - 37.560 And, Justice Wecht and Justice Donohue, whether it is addressed in the context of,

01:01 - 42.131 of special laws provision or the discrimination provision,

01:01 - 47.670 there's still a basic bedrock concept that if I could just explain and that is

01:01 - 51.307 there needs to be a justification

01:01 - 54.944 for the distinction made in the statute.

01:01 - 56.512 Right?

01:01 - 00.783 It can't be arbitrary, which I counsel, which arbitrary about it.

01:02 - 04.587 Septa is a creature of the legislature.

01:02 - 07.557 It's a, Commonwealth agency.

01:02 - 12.361 What's arbitrary about, designing a protocol that deals with,

01:02 - 16.866 either actual safety issues or the perception of safety issues?

01:02 - 20.269 Within Septa? Why?

01:02 - 21.204 Why is that arbitrary?

01:02 - 22.371 That's not the problem.

01:02 - 25.374 The problem is the distinction drawn between

01:02 - 27.443 the preemptive

01:02 - 30.646 authority with respect to a Da from

01:02 - 33.983 a first class county

01:02 - 36.552 and the other counties where scepter operates.

01:02 - 40.690 The pernicious, the problem, the pernicious effect,

01:02 - 43.693 and the problem with the statute is that distinction.

01:02 - 47.130 Now, let's hypothesize

01:02 - 51.033 let's remove the closed law situation.

01:02 - 57.406 Suppose the law were state in effect

01:02 - 01.144 and Montgomery County became a first class county.

01:03 - 05.515 So then act 40 would operate

01:03 - 08.918 to distinguish Montgomery County and Philadelphia County, in which case

01:03 - 10.386 there would be preemptive authority.

01:03 - 14.657 And the other counties were set to operate and ask the question,

01:03 - 19.629 is there any basis in the legislation for that?

01:03 - 22.899 And the answer is absolutely clearly no. Why?

01:03 - 27.537 Because in the like most favorable and I submit counterfactual,

01:03 - 31.541 the support for the law was the Da.

01:03 - 34.977 Krasner wasn't following through in prosecutions

01:03 - 38.447 that would not support does not support

01:03 - 41.584 the distinction between first class counties and not

01:03 - 44.287 so then you'd have a rational basis challenge.

01:03 - 47.256 I but you don't have that here. In other words.

01:03 - 50.226 Oh we do what hurdle well I do what hurdle. Yeah.

01:03 - 53.830 What hurdle did this let you know you disagree

01:03 - 57.767 and you think it's, pernicious in no doubt.

01:03 - 58.568 Pretextual.

01:03 - 02.572 But the the record is peppered with all kinds of statements

01:04 - 05.541 by legislators in this building about Mr.

01:04 - 06.075 Krasner.

01:04 - 10.513 So they they made up their mind about him in a way that you don't like.

01:04 - 13.149 But how does that make you irrational?

01:04 - 14.617 Because the statute.

01:04 - 18.754 Look, respectfully, I think I went either way.

01:04 - 21.958 The statute says we're not singling out.

01:04 - 23.759 So let's assume

01:04 - 26.762 that they're right that the statute doesn't single out Philadelphia.

01:04 - 29.899 Okay. It doesn't single out Philadelphia.

01:04 - 31.300 Then who gives a hoot?

01:04 - 32.768 What do you think about D.A.

01:04 - 34.937 Krasner, let alone things that we've been?

01:04 - 37.306 Just to be clear, we think are completely counterfactual,

01:04 - 41.210 that when you look at the record facts, he in fact was,

01:04 - 45.648 proceeding ab with,

01:04 - 49.452 prosecuting at the rates on Septa with prior,

01:04 - 52.722 administrations and for serious crimes

01:04 - 55.725 and with respect to similar but, but,

01:04 - 59.962 if the view is it's not about Krasner,

01:05 - 02.031 it's about first class counties.

01:05 - 05.034 Then if there's another first class county, there's no support.

01:05 - 09.538 Alternatively, if they say, well, it really is about Da Krasner, then it's a

01:05 - 14.310 slam dunk per se unconstitutional statute because it's a closed class.

01:05 - 16.946 What if it's just about facilities?

01:05 - 19.749 If it's just about what if it's just about facilities

01:05 - 21.517 and it has really nothing to do with Krasner?

01:05 - 24.520 What if the General Assembly passed a law that said,

01:05 - 28.858 all prosecution of crime occurring on state owned property

01:05 - 33.529 in Dauphin County, must be prosecuted by the attorney general,

01:05 - 38.567 thereby divesting the elected Dauphin County District Attorney of authority.

01:05 - 40.303 Would that be a

01:05 - 43.739 problem, since it's a focus on a General Assembly

01:05 - 47.009 policy judgment, that we want crime that occurs on state property

01:05 - 50.012 to be prosecuted by the statewide prosecutor?

01:05 - 57.019 If there is a distinction between

01:05 - 01.190 that preemption for Dauphin County and there is concurrent

01:06 - 05.194 jurisdiction for all other counties, that's a prohibited law.

01:06 - 11.567 If it is a, because you run afoul of the special laws

01:06 - 14.670 provision if you're just singling out Dauphin County.

01:06 - 16.505 So that's violative.

01:06 - 19.075 Look, there's another there's another.

01:06 - 21.677 And so I think that's that's really the short answer.

01:06 - 23.946 Let let's be clear. It's in our briefs.

01:06 - 27.683 And I don't want it lost that if there's going to be a special law

01:06 - 31.754 and if, if this is in fact recognized as a special law,

01:06 - 35.858 which I, which I think it is, there's a mandatory requirement on article three,

01:06 - 40.196 section seven, that there would be notice and I'm not sure you right.

01:06 - 42.598 I'm not sure you preserve that violation.

01:06 - 44.233 We did we raised it.

01:06 - 47.236 We raised it in the Commonwealth Court

01:06 - 50.606 in our briefing, not in your petition for review in the Commonwealth.

01:06 - 52.975 Didn't need to be. Yes, it did.

01:06 - 54.510 At least I view that it did.

01:06 - 57.046 It's a separate it's a separate constitutional challenge

01:06 - 59.882 to the passage of the law. It's a procedural constitutional challenge.

01:06 - 01.083 With the passage of the law,

01:07 - 05.421 we regarded it as a defense to an argument that they raised.

01:07 - 06.088 Okay.

01:07 - 08.357 That is, we didn't we just didn't.

01:07 - 09.225 It didn't.

01:07 - 11.861 You don't have to raise every constitutional defense

01:07 - 15.798 in your initial petition, after we filed a petition, we got their answer

01:07 - 19.135 and we learned what their responses are and therefore we proceed.

01:07 - 20.469 But but

01:07 - 22.738 so respectfully,

01:07 - 26.742 I don't think I mean, this is this issue has been kicking around long for argument.

01:07 - 27.843 They've had fairness.

01:07 - 30.846 They've had a fair opportunity to address it in the Commonwealth Court.

01:07 - 33.449 They knew it was there at the time.

01:07 - 35.684 They had ample opportunity to reply to it.

01:07 - 39.388 And it was here in front of this court in day one.

01:07 - 42.258 Would you wrap up mr.

01:07 - 44.527 summers? Yes.

01:07 - 50.666 Act 40 is really an historic challenge.

01:07 - 53.803 To the district attorney.

01:07 - 58.607 And to Philadelphia, broadly speaking, to the powers of the district attorney,

01:07 - 03.245 specifically with respect to, the Philadelphia district attorney.

01:08 - 08.851 It's a law targeted to him because of a difference of opinion about policies.

01:08 - 13.122 It is clearly about two fundamental sets of problems.

01:08 - 16.725 One basket of problems are that it's a special law

01:08 - 20.396 that, singles out Philadelphia,

01:08 - 24.700 that, for which there was, no notice.

01:08 - 28.537 And secondly, because it's, it's

01:08 - 31.507 a, it's stripping the authority of a district attorney.

01:08 - 33.742 It's different from other officers.

01:08 - 34.944 And that's what that second

01:08 - 38.047 that's the first set of arguments that I raise, that the super session

01:08 - 43.519 is a particularly odious and constitutionally infirmed statute.

01:08 - 45.087 Thank you very much.

01:08 - 47.590 Thank you, Mr. Summers. Let's hear from Mr. Mullen.

01:08 - 54.930 Thank you, Madam Chief Justice, may it please the court.

01:08 - 56.132 My name is Daniel Mullen.

01:08 - 58.467 I'm here on behalf of the attorney general.

01:08 - 02.538 With me here today is Matthew Haverstock, counsel for intervenor Septa.

01:09 - 05.908 We're very familiar with this court's know, piling on rule,

01:09 - 08.644 and we have divvied up the issues accordingly.

01:09 - 12.114 I'm going to address whether act 40 violates article

01:09 - 15.284 three, section 32, the local and special laws clause.

01:09 - 19.155 That includes the equal protection aspect of that challenge.

01:09 - 23.359 I'm also going to address the related issue of whether the Da

01:09 - 27.363 preserved, his notice claim under article three, section seven.

01:09 - 28.831 That leaves Mr.

01:09 - 30.199 Harris sick with everything else.

01:09 - 33.636 The, the article nine, section four claims,

01:09 - 37.840 whether the Da has standing to assert the rights of criminal defendants,

01:09 - 40.709 and whether the Da preserved his delegation claim.

01:09 - 43.846 I want to begin with justice to Socrates.

01:09 - 46.849 Question to my friend about article three, section 20.

01:09 - 50.286 And then I want to turn to article nine, section 13, and explain

01:09 - 53.389 why my friend's position on that clause is frankly, untenable.

01:09 - 57.393 Beginning with your question about article three, section 20,

01:09 - 01.397 as you note, it provides that all laws relating to each class

01:10 - 04.867 shall be deemed general legislation under the Constitution.

01:10 - 09.738 And on pages 39 and 40 of our brief, we cite a series of cases

01:10 - 13.642 that that support our reading of that provision.

01:10 - 16.979 And I want to quickly discuss the one that I think is the most important.

01:10 - 18.581 It's Haverford Township.

01:10 - 23.085 It's a 1942 case, this court upheld a statute requiring

01:10 - 27.389 the appointment of a police civil service commission for first class townships.

01:10 - 28.757 Only.

01:10 - 31.727 And this court said that the plain language of section 20

01:10 - 34.730 makes it clear that the legislature can classify municipalities

01:10 - 38.867 and that laws for for classes so provided shall be deemed general

01:10 - 40.236 for all purposes

01:10 - 43.539 in this court went on, that the purpose and effect of this amendment

01:10 - 48.877 was not to contract, but to broaden the latitude allowed for the legislature,

01:10 - 52.848 and to eliminate any controversy about the creation of classes

01:10 - 54.650 containing only one member.

01:10 - 58.120 So section 20 recognizes that we can have a class of one member,

01:10 - 02.658 and the General Assembly can legislate for that class as it sees fit.

01:11 - 06.061 And my my friend, frankly, does not respond

01:11 - 09.064 to any of those cases in his reply brief.

01:11 - 14.236 Turning to to article nine, section 13,

01:11 - 18.007 my friend's position is untenable for two reasons one justice provisions.

01:11 - 21.410 As I think you noted, there's nothing in the text that supports it,

01:11 - 22.711 and that should be enough.

01:11 - 26.048 But I'll also highlight that in 1968,

01:11 - 30.352 it was put to the people of Pennsylvania whether to keep that provision or not.

01:11 - 32.588 It was initially adopted in 1950.

01:11 - 36.358 By 1968, the consolidation had been complete.

01:11 - 39.862 Charter for the first class city had had been in place,

01:11 - 43.365 and the people of Pennsylvania decided to keep it verbatim.

01:11 - 46.735 And so if they felt it had outlived its usefulness, and it was just

01:11 - 50.339 this one time thing, and it's over once the once

01:11 - 53.742 the consolidation happens, why is it still there?

01:11 - 56.845 And so the reason is

01:11 - 00.816 the people of Pennsylvania recognized that it was giving,

01:12 - 04.620 Philadelphia a structure that no other municipality

01:12 - 07.623 in the Commonwealth was getting this consolidated

01:12 - 10.626 of city and county authority into one entity,

01:12 - 13.762 and it wanted to make sure that it could be kept in check.

01:12 - 17.766 And so it it carved out two exceptions to the local and special law provision,

01:12 - 21.236 those that regulate the affairs of Philadelphia,

01:12 - 24.840 and those that prescribed the powers and duties of Philadelphia officers.

01:12 - 28.177 And so we think that this case can be resolved,

01:12 - 31.714 on the plain text of those two provisions of the Constitution,

01:12 - 35.184 I welcome the court's questions.

01:12 - 38.253 Are you going to talk about the notice provision?

01:12 - 40.089 Yes, yes, I'm happy to address that.

01:12 - 42.524 And,

01:12 - 45.594 I think it's important to quickly go over the

01:12 - 48.964 the timeline of events in the Commonwealth Court.

01:12 - 53.702 So, so the Da files his petition does not raise the issue.

01:12 - 57.506 We have a status conference with the Commonwealth Court,

01:12 - 01.310 and it's conceded that there are no fact issues involved in the case.

01:13 - 04.279 And we can just decided on legal argument on the briefs.

01:13 - 07.049 Then he files his application for summary relief

01:13 - 10.018 again does not raise the notice issue.

01:13 - 11.720 Then he puts it in his brief

01:13 - 15.524 and our position is it's waived and it turns on fact issues.

01:13 - 18.560 So we were not actually given the opportunity to

01:13 - 21.964 to build a record about whether notice was provided.

01:13 - 24.967 And there's a presumption

01:13 - 28.637 under this court's decision in Perkins that notice was complied with

01:13 - 33.008 when a statute, is passed by both houses of the General Assembly

01:13 - 35.344 and signed by the governor. And so

01:13 - 38.480 because he didn't raise in his petition,

01:13 - 41.283 there was never an evidentiary record developed

01:13 - 44.286 on that point.

01:13 - 46.822 Any other questions?

01:13 - 49.491 Any other questions from the justices?

01:13 - 51.460 Well, you're getting off easy.

01:13 - 52.928 I'll take it.

01:13 - 53.929 Thank you, Chief Justice.

01:13 - 56.932 And let's hear from Mr. Haverstock.

01:13 - 59.067 How many times have you argued before us?

01:13 - 00.068 Mr..

01:14 - 03.806 Your honor, I think it's around 15 or 16.

01:14 - 05.707 Yeah, we see all the time.

01:14 - 06.275 Yeah. Okay.

01:14 - 09.278 I hope that, signals,

01:14 - 12.915 madam Chief Justice, your honor, may it please the court?

01:14 - 16.652 My name is Matt Haver stick, and I represent Septa.

01:14 - 20.556 And your Honor, in a lot of those arguments.

01:14 - 24.293 The the alpha and the omega, the argument is this that,

01:14 - 28.030 you know, this green book, the Constitution and

01:14 - 32.768 I can say in the continuum of those cases, this one becomes relatively easy

01:14 - 37.105 because there is zero text in the Constitution

01:14 - 40.576 that somehow elevates the district attorney

01:14 - 44.213 to a super constitutional or ultra constitutional officer.

01:14 - 49.384 The duties of the district attorney are not prescribed in the Constitution.

01:14 - 52.421 They are purely statutory,

01:14 - 55.157 as are the powers of the Attorney General.

01:14 - 00.696 I dare say if either of those officers has a role defined in the Constitution,

01:15 - 04.800 it's probably the attorney General, but it's certainly not the district attorney.

01:15 - 05.868 What does that mean?

01:15 - 07.503 Like sort of obvious, right?

01:15 - 10.806 I mean, the General Assembly decides what the duties

01:15 - 13.809 and jurisdiction of a district attorney are.

01:15 - 15.878 That's exactly what's happened here.

01:15 - 18.447 This is not novel. This is not unique.

01:15 - 21.517 OAG has exclusive jurisdiction

01:15 - 25.220 over some crimes, for instance, violations of the Lobby Act.

01:15 - 28.423 That's entirely OAG.

01:15 - 31.226 I think you can argue credibly that

01:15 - 35.063 in environmental cases, because they're referrals from DEP, that's

01:15 - 38.600 almost always exclusive jurisdiction inside OAG.

01:15 - 41.403 Again, this is not special.

01:15 - 42.704 It's not unique.

01:15 - 45.941 There's nothing I think here that is of a constitutional dimension.

01:15 - 49.044 Well, it is it is it is special in the regard

01:15 - 53.248 that the law, if it was just a law that preempted

01:15 - 57.786 or, preempted is probably the wrong word, super,

01:15 - 01.356 super session or whatever the proper terminology is.

01:16 - 05.060 All crimes that occur on all set,

01:16 - 08.063 the properties are vested in the attorney general.

01:16 - 12.234 That would be one thing, but this law does differentiate

01:16 - 12.968 between crimes

01:16 - 16.939 that occur on Septa properties in the city of Philadelphia versus crimes

01:16 - 19.841 that occur on separate properties outside of the city of Philadelphia.

01:16 - 22.844 Well, only only for the only for the super session.

01:16 - 24.279 That's what I'm saying for this.

01:16 - 25.647 And that's that's really

01:16 - 28.984 if there was an argument that piqued my interest in this case,

01:16 - 31.987 that would be the one I would really focus on, because there

01:16 - 35.023 you have to concede that there is a disparate treatment

01:16 - 37.926 between the elected prosecutor in Philadelphia

01:16 - 39.828 and the elected prosecutors in the other counties.

01:16 - 42.864 Well, and I think that's allowed by the Constitution,

01:16 - 46.168 I think as as articulated during the argument,

01:16 - 49.905 the Constitution deliberately treats Philadelphia

01:16 - 53.208 different than every other municipality in the Commonwealth.

01:16 - 56.678 We can all wonder why that is and maybe will change someday.

01:16 - 58.146 But the words are what they are.

01:16 - 02.517 I mean, it says in the hypothesis, could could the lawmakers have,

01:17 - 06.054 instead of superseding on Septa,

01:17 - 11.293 could they have said, we're taking away all your felony prosecutions, you know,

01:17 - 15.130 for all your misdemeanors or all your death penalty cases or,

01:17 - 16.798 you know, can they do that?

01:17 - 18.367 Is there any limit?

01:17 - 25.507 There's some outer limit where you've taken away so much of the authority of

01:17 - 29.244 a county prosecutor that

01:17 - 33.582 I think you've effectively removed him in a way that is not prescribed

01:17 - 37.119 by the Constitution, that is, by Senate address or by impeachment.

01:17 - 39.788 But we're a, you know, we're a long way off from that.

01:17 - 43.925 And we have we have case of fighting those battles because we've had statutes

01:17 - 47.562 that have withstand constitutional battle on basically eliminating

01:17 - 51.333 all duties of elected school boards, all duties of elected.

01:17 - 54.403 I mean, there's some they still get to do some things.

01:17 - 56.371 And I think that's what saved them.

01:17 - 59.708 But but but the complete omission of the office

01:18 - 03.879 other than that, other than to cap of pay and sit at the desk, that might be

01:18 - 07.449 I look that I think I'm on solid ground

01:18 - 11.586 saying if, if, if the statute eliminated every single duty

01:18 - 15.023 of an elected district, that's too easy a you're right.

01:18 - 18.960 That's why I like I'm asking you a harder I think it's a harder question.

01:18 - 21.263 You are if if you're right,

01:18 - 23.098 if you're

01:18 - 26.168 right that the the General Assembly could do this,

01:18 - 30.739 what's the principled reason that they couldn't just cleave out all the felonies

01:18 - 34.476 or all the misdemeanors or, you know, all the armed robberies or whatever?

01:18 - 36.378 What's the principle difference?

01:18 - 40.682 Well, look, the the principal the answer is, I think there is a lot of latitude

01:18 - 44.386 for the General Assembly to take away jurisdiction from

01:18 - 47.856 one prosecutor and give it to the chief law

01:18 - 51.126 officer of the Commonwealth, and that's the attorney general now.

01:18 - 54.730 But look, I mean that that's not this statute, right?

01:18 - 58.400 This statute doesn't take away jurisdiction

01:18 - 02.104 from the district attorney of Philadelphia.

01:19 - 05.173 It it grants jurisdiction

01:19 - 09.945 to a designee of the attorney general who shares concurrent jurisdiction

01:19 - 13.949 with the district attorney, and only in those cases, which may never happen

01:19 - 18.420 where there's an effort to supersede in Philadelphia.

01:19 - 23.291 Could could you argue that the the the district attorney has lost something,

01:19 - 27.262 but up until then, they both have jurisdiction over crimes on Septa.

01:19 - 33.668 But suppose suppose it was a situation where the General Assembly,

01:19 - 38.039 cleaved out

01:19 - 42.577 all prosecutions for the superseded the Da,

01:19 - 47.115 gave it to the attorney general for certain neighborhoods of Philadelphia.

01:19 - 49.618 I mean, you know,

01:19 - 52.988 and and you you'd come in front of us that and say, well, article nine,

01:19 - 57.592 section 32 is the exception to the special law provisions.

01:19 - 00.428 I mean, but I make no stopping point there.

01:20 - 02.664 But I might not, because I'm not sure that I'm not sure

01:20 - 05.200 that you can stretch the language in article nine that far,

01:20 - 07.369 because it says Philadelphia doesn't say wards,

01:20 - 09.304 Philadelphia doesn't say neighborhoods of Philadelphia.

01:20 - 11.940 Does it say zip codes? In Philadelphia, it says Philadelphia.

01:20 - 15.443 And I think the principal drew argument that one can make

01:20 - 18.480 is, yes, we can treat Philadelphia differently.

01:20 - 20.015 Beyond that, I don't

01:20 - 23.985 you ask a very fair question, but I think the answer

01:20 - 26.988 is, Your Honor, you probably couldn't treat

01:20 - 30.325 different neighborhoods in Philadelphia

01:20 - 34.296 differently under at least under that under that section of the Constitution.

01:20 - 35.397 There might be another argument.

01:20 - 37.265 Mr. haversack, let me follow up on that.

01:20 - 39.467 What's within septum?

01:20 - 41.736 Say again, what's within Septa mean?

01:20 - 45.106 Well, I live in East Hartsdale, right near target L train station,

01:20 - 46.541 within a couple hundred feet.

01:20 - 49.311 If somebody breaks into my house, who's got jurisdiction on.

01:20 - 50.779 So you're.

01:20 - 54.816 And I think I don't want to give a glib answer, but I think within is a pretty

01:20 - 58.186 universally understood term.

01:20 - 00.488 But but but tell me what it means.

01:21 - 04.392 Well, I will if you go to the definition section in

01:21 - 08.830 in chapter 17 where it's talking about, metropolitan transportation authorities,

01:21 - 13.935 I, I think there's a definition for transportation systems,

01:21 - 17.505 and it lays out what that is like, all of the places

01:21 - 21.443 that are within a metropolitan transportation authority.

01:21 - 25.614 And I think that's the answer, because if you look at it, it talks about

01:21 - 29.618 on the cars, on the trolleys, on the busses,

01:21 - 33.855 at the stations, in the right of ways, in the powerhouses, I mean, I

01:21 - 36.157 so I think that's what it means. So basically, Mr.

01:21 - 39.261 Krasner would have no jurisdiction say

01:21 - 42.264 for anything happen anywhere in Suburban Station, for example.

01:21 - 46.101 Well, he certainly wouldn't. Oh.

01:21 - 49.104 Suburban station, I was thinking, and I'm thinking something else.

01:21 - 50.972 I was thinking of the one on market.

01:21 - 56.378 No, he has jurisdiction there because it's concurrent jurisdiction.

01:21 - 00.215 He has and shares jurisdiction with the special prosecutor.

01:22 - 04.819 The only time that we got it superseded at will by the special prosecutor.

01:22 - 08.290 Well, let's talk about that for a minute, because I think,

01:22 - 14.296 I think the super session discussion and his talismanic effort to elevate,

01:22 - 17.599 you know, a two cases that were before the Commonwealth Attorneys

01:22 - 21.436 Act and two cases that were before we we we constitutionally,

01:22 - 24.973 as the office of attorney general, bear pretty close scrutiny.

01:22 - 29.377 And what those cases Shahab and Shelly did not say is

01:22 - 33.214 that there is a constitutional dimension to super session.

01:22 - 37.218 They were talking specifically about two statutes and how you read those,

01:22 - 43.825 read those statutes, and how you balance the authority of the elected D.A.

01:22 - 46.628 with the unelected, at the time, attorney general.

01:22 - 50.765 But in neither of those cases was super session disallowed.

01:22 - 53.802 And in neither of those cases, did anybody say, oh, yeah,

01:22 - 57.939 the Da can't be superseded because the Constitution says he can.

01:22 - 02.610 All of these powers and duties that we're talking about are statutory.

01:23 - 06.915 And this is another statutory expression of when

01:23 - 09.951 super session can happen.

01:23 - 12.787 Does that mean it's unchallengeable.

01:23 - 17.258 No, I mean, I suppose if there was super session and somebody

01:23 - 21.296 like the district attorney thought that it was an abuse of discretion,

01:23 - 24.299 he could come back to this court and say, I think this is an abuse of discretion.

01:23 - 25.867 How would that happen?

01:23 - 31.072 And let's say either the district attorney or a defendant wants to challenge,

01:23 - 35.377 a determination, to prosecute

01:23 - 39.180 because, the activity was quote unquote, within scepter.

01:23 - 40.915 The defendant disagrees.

01:23 - 42.517 This is not within Septa.

01:23 - 45.720 Where would that challenge be or where would the district attorney

01:23 - 48.723 bring that challenge, with that percolate?

01:23 - 51.826 Well, look, I guess I think about the

01:23 - 56.498 I think you'd have to fight if it was the district attorney.

01:23 - 00.502 I think the district attorney would have to file a for

01:24 - 01.603 in Commonwealth court

01:24 - 05.340 because it's it's it's it's a designee of the attorney general.

01:24 - 09.444 So I don't think it would properly lie in Philly common pleas.

01:24 - 11.713 Let's let's go back a step.

01:24 - 16.985 I mean, if you're, if the, within Septa is outside of Philadelphia,

01:24 - 20.021 there's a process that takes place right in writing.

01:24 - 23.091 The super section is in writing.

01:24 - 26.461 And then the, agreement is also in writing.

01:24 - 28.596 How does it happen in Philadelphia?

01:24 - 32.801 The statute,

01:24 - 37.605 prescribes that the special prosecutor notifies

01:24 - 42.110 the district attorney's office that the special prosecutor

01:24 - 45.513 is going to take over the case, and that's supposed to trigger,

01:24 - 48.550 mechanically, the transmission of files and papers

01:24 - 49.984 and all the other stuff that happens.

01:24 - 52.487 And I guess if there's a grand jury, they figure that out

01:24 - 56.257 and there is no court involvement of any type.

01:24 - 01.496 No, not written into the statute, but if the if,

01:25 - 04.866 if Schwab and Shelly are helpful to Mr.

01:25 - 08.937 Krasner in any way, it's it's describing what I don't think

01:25 - 12.107 is a remarkable innovation in the law

01:25 - 15.110 and that is that

01:25 - 18.746 authorities have to exercise discretion when they're using their power.

01:25 - 22.450 And just like in those cases where, you know, in the first it was

01:25 - 26.087 it was the AG, on behalf of the governor going to court.

01:25 - 32.093 And then I think in, in Shab, I forget the procedure, I forget the procedure.

01:25 - 33.495 Procedure. But somebody went to court.

01:25 - 36.664 Somebody went to court and challenged the exercise of discretion.

01:25 - 37.866 And there's nothing in the statute.

01:25 - 42.203 But your point was Commonwealth Court has jurisdiction if they want to, if the D.A.

01:25 - 46.207 wants to sue the special prosecutor or the attorney general,

01:25 - 50.478 for exercising discretion, seek file a declaratory injunction

01:25 - 53.047 and seek a preliminary declaratory judgment to seek a preliminary injunction.

01:25 - 55.683 I mean, isn't that exactly what happened in the opioid case?

01:25 - 57.085 I mean, in the opioid case?

01:25 - 00.188 Didn't didn't, didn't, the DA's of Allegheny

01:26 - 03.691 in Philadelphia sued the office attorney general and claim,

01:26 - 07.729 oh, you've you know, you've superseded me and you've abused their discretion.

01:26 - 09.330 So, sure, there's there's an avenue for that.

01:26 - 10.598 All right.

01:26 - 12.934 Any other questions? Counsel?

01:26 - 17.138 I've read in one of your meeting, the Commonwealth versus McHale case

01:26 - 20.175 from this court from 1881.

01:26 - 21.976 You address that? Are you familiar with that?

01:26 - 26.247 Me that I think I know which one that is it.

01:26 - 29.817 Back in the day, there was a challenge to the position

01:26 - 33.054 of the district attorney or his involvement in alleged voter fraud.

01:26 - 38.226 But this court had written and quote unquote, it is said the appointment

01:26 - 43.865 was illegal, because constitution adopted by the act of 1866 was passed

01:26 - 47.969 makes the district attorney a constitutional officer and such.

01:26 - 50.972 He cannot be stripped of his powers by the legislature.

01:26 - 53.875 There's little force in this suggestion.

01:26 - 55.176 That's the important part.

01:26 - 58.079 While the legislature may not abolish

01:26 - 01.082 the office, it can control the officer.

01:27 - 04.319 They can regulate the performance of those duties and punish him

01:27 - 07.322 for misconduct, as in the case of other officers,

01:27 - 11.426 and where he neglects or refuses to act, or where for the circumstances

01:27 - 15.230 of a given case, it's improper and indelicate for him to act.

01:27 - 18.233 It is competent for the legislator to afford to remedy.

01:27 - 24.005 My understanding is as justice.

01:27 - 26.174 I believe it was at

01:27 - 30.812 this legislation was in response to a policy decision

01:27 - 34.949 by the General Assembly, in essence, to punish our district attorney

01:27 - 40.355 because they did not believe he was adequately protecting the citizens

01:27 - 43.925 on the Philadelphia Septa transit.

01:27 - 47.996 How does that play into you or go against your argument?

01:27 - 52.767 Well, for once, I'm not up here talking on behalf of some aspect there

01:27 - 55.970 element of the General Assembly, so I can't, you know, I can't

01:27 - 59.207 speak to the intent, but but I wouldn't and shouldn't

01:27 - 03.211 because I think the statute itself lays out the, the basic public

01:28 - 07.649 policy reasons related to safety and, and security on the system

01:28 - 13.087 that underlie the statute, and why the addition of a resource

01:28 - 16.491 to the district attorney and to the people in Philadelphia,

01:28 - 20.061 in the form of a special prosecutor, was was was a good idea.

01:28 - 23.097 But but, Michael, it's I mean, it's the case I was thinking

01:28 - 27.502 in case I was thinking it was your honor is sort of seminal.

01:28 - 31.939 Whenever we get to these questions about the authority of

01:28 - 35.677 the district attorney, and it came up in in the impeachment cases, too,

01:28 - 40.148 and it really states a pretty basic and but, but important proposition.

01:28 - 40.915 And that is

01:28 - 44.819 the office may be mentioned in the Constitution,

01:28 - 45.820 and you may not be able

01:28 - 50.191 to remove the person in the office except by use of the Constitution,

01:28 - 55.596 but what the person's job responsibilities and jurisdiction is,

01:28 - 59.467 is not in the Constitution, and therefore the General Assembly

01:29 - 02.804 can largely do what it wants in terms

01:29 - 06.307 of defining the jurisdiction of the office and the officer.

01:29 - 08.042 And let's not forget,

01:29 - 11.212 the district attorney didn't start out as a constitutional officer.

01:29 - 13.548 He was a statutory creation.

01:29 - 16.551 He was created by statute in the 1850s.

01:29 - 19.587 Then he was put into the Constitution

01:29 - 23.458 to to make it so that he was an elected official, but nothing more.

01:29 - 29.330 So the the history of the district attorney in our Commonwealth

01:29 - 33.968 has always been one where the jurisdiction of that elected official

01:29 - 37.038 has been defined by the General Assembly, which is,

01:29 - 40.708 you know, again, why this act 40 is not that remarkable.

01:29 - 43.845 And thank you, Your Honor.

01:29 - 45.279 Thank you in. And Mr.

01:29 - 46.147 summers, Mr.

01:29 - 49.250 Mullin and Mr.. Have tremendous arguments.

01:29 - 51.486 Great job by all three of your clients

01:29 - 53.988 were well served today and we'll take it under advisement.

01:29 - 55.089 Thank you.

01:29 - 59.127 The next case you can hear argument in is Office of Consumer Advocate versus

01:29 - 02.363 the Pennsylvania Public Utility Commission, which involves the proposed

01:30 - 06.067 acquisition of a wastewater system by public utility Aqua.

01:30 - 07.668 Pennsylvania Wastewater, Inc.

01:30 - 09.537 is a Pennsylvania public utility

01:30 - 13.641 that holds a Certificate of Public Conveyance, or CPC, to provide

01:30 - 17.011 wastewater services to customers in various counties within Pennsylvania.

01:30 - 20.381 CPC is a grant of authority from the Pennsylvania Public Utility

01:30 - 24.318 Commission, allowing a company to provide regulated public utility services.

01:30 - 28.055 In 2021, Aqua entered into an agreement with East

01:30 - 31.092 Whitehall Township, under which Aqua agreed to acquire

01:30 - 35.296 the township's wastewater system in exchange for $54.9 million.

01:30 - 38.766 Aqua then filed an application with the Public Utility Commission

01:30 - 42.437 seeking, among other relief, approval of the agreement and a Certificate

01:30 - 45.940 of Public Conveyance to offer service to the township's customers.

01:30 - 50.278 The Penn State Office of Consumer Advocate thought a protest to that application.

01:30 - 53.247 Administrative Law Judge proceeded to hold an evidentiary

01:30 - 54.782 hearing on the application.

01:30 - 55.850 Following the hearing,

01:30 - 59.921 the law judge issued a recommended decision that the application be denied.

01:31 - 03.291 Aqua and the township both filed exceptions to the recommendation.

01:31 - 05.593 Cision with the Public Utility Commission.

01:31 - 09.797 Commission granted the exceptions approve the application, granted Aqua

01:31 - 13.401 a CPC for the township's wastewater system.

01:31 - 17.171 In doing so, the Commission determined that the benefit of office

01:31 - 21.142 ownership of the system outweighed the adverse impacts of the transaction,

01:31 - 24.412 including anticipated rate increases to township customers.

01:31 - 27.582 The Commonwealth Court reversed on appeal,

01:31 - 30.184 the Common Court explained, and other public utility code

01:31 - 34.155 a proposed transaction must firmly promote the service, accommodation,

01:31 - 37.959 convenience or safety of the public in some substantial way.

01:31 - 41.195 For a CPC to issue, the Commonwealth Court found

01:31 - 44.198 that aquas proposed transaction did not satisfy that standard.

01:31 - 47.869 The court reasoned that holding the transaction will result in substantial

01:31 - 49.737 affirmative public benefits,

01:31 - 52.807 because it will provide the same services already being provided.

01:31 - 56.978 It is not a benefit, let alone a substantial affirmative public benefit

01:31 - 00.181 one as required by the statute in case law.

01:32 - 03.951 Nor is it a benefit to provide upgrades at the township is capable of providing.

01:32 - 06.954 The Commonwealth thus held that the Commission, including

01:32 - 10.791 the Aqua, established substantial affirmative public benefits that outweigh

01:32 - 14.562 the known harms of Aqua transaction of the township's wastewater system.

01:32 - 18.566 The Public Utility Commission, Aqua, and the Township all petitioned

01:32 - 20.701 the Pennsylvania Supreme Court for further review,

01:32 - 22.904 and the court agreed to hear the appeal.

01:32 - 26.040 The Commission, Aqua and the township reached similar arguments

01:32 - 28.175 in the briefs to the Supreme Court.

01:32 - 31.612 They each argue that the Commonwealth Court improperly relayed the evidence

01:32 - 32.547 to chairman, that

01:32 - 36.083 no affirmative benefits existed to support aquas proposed transaction.

01:32 - 37.919 The Each also contend

01:32 - 40.354 that the Commonwealth failed to give deference to the Commission

01:32 - 43.591 regarding its interpretation of the provisions of the Public Utility Code

01:32 - 48.396 or its fact finding role and specialized expertise concerning CPC matters.

01:32 - 51.933 Further, they each maintained that the Commonwealth Court disregarded

01:32 - 56.504 the General Assembly's intent with regard to section 1329, the Public Utility Code,

01:32 - 59.574 which, according to them, authorized the municipality

01:32 - 03.177 to sell a wastewater system to a larger, more advanced public utility

01:33 - 07.248 without conditioning the transaction on the non viability of the system.

01:33 - 11.052 For these reasons and others, the Commission acquired the township

01:33 - 14.388 claim that the Commonwealth Court's ruling must be overturned.

01:33 - 18.059 The officer, consumer advocate and other hand, argues in its briefs

01:33 - 21.028 that the Commonwealth Court's decision is consistent with existing law

01:33 - 22.597 and should be affirmed.

01:33 - 25.066 The office contends that the Commonwealth Court properly applied

01:33 - 28.269 the longstanding substantial affirmative public benefits standard.

01:33 - 31.839 The office maintains the Commonwealth correctly held

01:33 - 35.610 that Aqua Fitness and the service that were flow there from were not

01:33 - 39.213 substantial affirmative public benefits where the township can provide

01:33 - 42.850 the same or similar safe and reliable service to consumers

01:33 - 46.587 without the rate increase that would occur as a result of the transaction.

01:33 - 51.058 According to the office section 1329, the Public utility Code

01:33 - 53.194 did not alter the statute requirements

01:33 - 56.697 for approval of an acquisition by a public utility of a municipal system.

01:33 - 59.900 Let's watch and listen to oral argument

01:33 - 03.537 in Office of Consumer Advocate versus Pennsylvania Public Utility Commission.

03:02 - 00.302 Next up to the plate for argument is a matter of bread.

03:03 - 02.705 Better be the hall.

03:03 - 05.074 This is an appeal of a Superior Court decision

03:03 - 08.844 by Nicole Brebner against Michael Hall, in which Brebner,

03:03 - 12.881 in the original decision made by the Lebanon County Court of Common

03:03 - 16.085 Pleas, set a purge amount for purpose of contempt.

03:03 - 20.055 The Superior Court vacated the trial court's order, holding

03:03 - 21.957 that the trial court did not consider the amounts

03:03 - 24.960 available to the defendant in setting the purge amount.

03:03 - 29.031 Defendant had a significant history of failure to pay child support,

03:03 - 33.769 which resulted in a fine in contempt and a bench warrant issued in December 2022.

03:03 - 37.039 Both parties agreed the controlling case law was set

03:03 - 41.143 in the matter of a 1977 Supreme Court case of Barrett v Barrett.

03:03 - 45.180 Appellant argues that defendant's argument that the burden of proof

03:03 - 47.016 regarding his ability to pay a specific purge

03:03 - 49.752 amount has not been met should not be entertained.

03:03 - 53.555 When he failed to present any substantial issue of fact that called into question

03:03 - 56.558 his ability to pay at the trial court level.

03:03 - 00.129 Defendant was directed onto the support rolls and his order to appear

03:04 - 03.732 to produce an income and expense statement, or otherwise provide

03:04 - 06.902 evidence of his financial situation, which he failed to do.

03:04 - 11.006 Appellant argues that the trial court was within its province of discretion

03:04 - 13.876 to discredit self-serving testimony by the defendant

03:04 - 16.912 and defendant, failed to produce any sort of financial documentation

03:04 - 18.747 or even third party testimony

03:04 - 21.750 the trial court could have used to attempt to assess his ability to pay,

03:04 - 25.087 even though he was directed to do so on his order to appear.

03:04 - 29.458 Appellee defendant Michael Hall argues the trial court set an unaffordable

03:04 - 31.660 and therefore illegal purge condition

03:04 - 34.663 that effectively imposed a criminal contempt sanction.

03:04 - 38.300 Appellee further argues that the court for an affirmative obligation

03:04 - 41.570 to rest their decision on evidence and setting a purge amount,

03:04 - 43.972 and on the culprits ability to pay,

03:04 - 47.242 and that without such evidence the purge amount was improper.

03:04 - 51.213 Let's watch and listen to argument in the matter of bread batter v Hall.

03:04 - 53.215 Thank you, Your Honor.

03:04 - 58.320 As he just said, I'm John Griggs, and I'm for the domestic relations office. The

03:04 - 02.057 was the case that we're.

03:05 - 04.827 I think we're we're looking at a case that came from

03:05 - 08.097 this court in 1977 called Barrett the Spirit.

03:05 - 13.035 And then there was another one issued the very same day called mask v Petoskey.

03:05 - 14.636 I'm having trouble hearing you.

03:05 - 16.371 Could you get closer okay.

03:05 - 17.773 Or pull it up? Maybe.

03:05 - 19.942 Okay, I'll try that. Is that better, Your Honor?

03:05 - 21.410 Well, pull it up a little bit.

03:05 - 22.244 All right.

03:05 - 24.313 Okay. Thank you.

03:05 - 28.016 I, I was told it was finicky, so I didn't want to be too close to it.

03:05 - 29.485 No, no. You're good. Okay.

03:05 - 30.152 All right. I'm sorry.

03:05 - 34.323 So, the case we're starting with, your Honor is from this court.

03:05 - 37.326 In 1977, it was called Barrett v Barrett.

03:05 - 42.564 And another case it was issued the very same day was called Morocco v Petoskey.

03:05 - 44.466 It don't.

03:05 - 49.371 I'm not aware of any cases involving civil contempt and parades

03:05 - 52.674 that have come down from the High Court since then.

03:05 - 55.744 There's been numerous superior court decisions.

03:05 - 02.050 So, the the problem, the gist of our complaint

03:06 - 07.089 is kind of articular it a little bit by Judge Charles in his 1925 opinion

03:06 - 12.561 and that he says the defendant has every motivation to just clam up

03:06 - 15.931 and say nothing and provide no information to the court.

03:06 - 21.203 And we don't feel that that's a good policy to allow the defendant to do that

03:06 - 25.207 and then be able to avoid any meaningful subject.

03:06 - 25.941 I'm sorry.

03:06 - 28.944 That's fine. He's subject to cross exam.

03:06 - 32.214 I mean, he doesn't have a Fifth Amendment interest here, right?

03:06 - 33.982 No, I don't believe he would.

03:06 - 36.018 So why wouldn't he?

03:06 - 41.557 Why wouldn't the cross from the, obligor

03:06 - 44.826 or the dro?

03:06 - 49.498 Elicit the relevant information?

03:06 - 54.036 I mean, we we do attempt to do that.

03:06 - 58.106 I think in this case, the defendant's testimony is just very flat.

03:06 - 01.109 I don't have a job. I don't have $2,000.

03:07 - 04.680 I mean, it's not convenient, but the the the dro,

03:07 - 07.683 the can can do some homework.

03:07 - 10.052 There's.

03:07 - 12.354 Yes, it's theoretically possible.

03:07 - 15.357 The the amicus pointed that out in their brief.

03:07 - 19.728 My response to that is that I think it requires

03:07 - 23.799 a rule change, because the rule of rule change, Your honor,

03:07 - 29.238 because the Rules Committee have in, if set forth a discovery

03:07 - 32.441 sort of standard type of discovery, is not generally available,

03:07 - 36.545 that contempt proceedings are supposed to be decided within 75 days.

03:07 - 39.948 I think neither of those could survive.

03:07 - 42.985 There is something akin to discovery, though, on the order

03:07 - 46.255 to appear that sent out saying you need to come to court for contempt.

03:07 - 50.826 It also says you are required to bring various documentations

03:07 - 54.263 your income in this metric, this rule 19 1025 B

03:07 - 58.233 so what's the issue is that particular defendant did not do that.

03:07 - 59.901 In fact, he actually had quite the history

03:07 - 02.904 of not bringing stuff to establishment hearings as well.

03:08 - 05.841 Well, why couldn't the court draw an adverse inference?

03:08 - 10.279 Could it be the evidentiary predicate in whole or in part B, laid,

03:08 - 12.948 by the,

03:08 - 16.184 the adverse inference of the obligor

03:08 - 19.321 is failure to bring what he's been commanded to bring.

03:08 - 22.958 Well, I believe in this case, the court drew the inference from the fact that Mr.

03:08 - 26.328 Hall had made multiple lump sum payments.

03:08 - 29.064 Purge contempt I it's not the same, though.

03:08 - 32.701 That's not the same, because that doesn't mean he has the present ability.

03:08 - 33.368 Right?

03:08 - 36.371 I suppose it doesn't, Your Honor.

03:08 - 41.310 The right at any rate, the that the key issue.

03:08 - 45.180 I don't know that I have a whole lot of of like, feel about this case.

03:08 - 46.682 I put it down in my brief.

03:08 - 49.685 But the questions I want the court to answer,

03:08 - 52.421 I believe that the preferable rule

03:08 - 56.591 would be that the defendant be required to bring the issue up.

03:08 - 01.563 I think there's there was some issue with the defendant possibly not being properly

03:09 - 04.199 advised.

03:09 - 04.966 Well, he

03:09 - 07.436 he was advised of his right to counsel, but for some reason

03:09 - 10.339 he had not gone to the public defender when she came in and tried to help.

03:09 - 13.342 But she did bring it up very briefly.

03:09 - 17.813 But I think it the court should clarify that the defendant needs to bring that up

03:09 - 21.049 at the contempt hearing, at which point the trial court

03:09 - 24.052 must consider itself.

03:09 - 25.287 Bring what up?

03:09 - 28.290 What do you want this defendant is alleging.

03:09 - 31.626 Well, when you the defendant is found in contempt,

03:09 - 36.898 I believe that amounts to an implication that they were able to pay the order.

03:09 - 38.333 I don't think that's true.

03:09 - 40.135 No, I think I think that means that

03:09 - 43.138 that means the person in the willfully didn't follow the order.

03:09 - 47.776 But that doesn't necessarily mean that at the time

03:09 - 51.980 you make the determination to put them in jail unless they pay money

03:09 - 54.416 that that

03:09 - 56.985 that time at that point has any reflection on

03:09 - 59.988 whether they willfully failed to pay the order previously,

03:10 - 04.025 that this is a separate, independent assessment from the contempt

03:10 - 05.527 it flows from the contempt.

03:10 - 07.262 So they so they're now I kind of know

03:10 - 10.432 contempt or whatever that word is that we're using in this case,

03:10 - 16.405 of the myriad of options that I have as a trial court judge

03:10 - 20.275 to remedy the contempt, I want to throw this person in jail,

03:10 - 22.110 but the only way I can throw them in

03:10 - 25.113 jail is if I give them something that they can remedy.

03:10 - 26.982 That's what we're dealing with.

03:10 - 29.384 Is is did the trial court make the assessment

03:10 - 33.088 that our rule requires for the trial court to make meaning?

03:10 - 37.492 Did the trial court before setting the value, make a finding

03:10 - 39.327 that the value could be satisfied?

03:10 - 42.564 Well, he sort of did, your

03:10 - 46.368 Honor, in this case, the trial court was clearly very convinced that Mr.

03:10 - 49.104 Hall would be able to pay the money.

03:10 - 53.275 The only real testimony in the matter was him saying that he could not.

03:10 - 56.611 Well, sir, if I may address that,

03:10 - 00.415 the issue for the court is whether contempt, where or finding of contempt

03:11 - 04.653 posits that he's unable to pay a purge because the contempt or waive the issue

03:11 - 08.557 if he fails to proffer affirmative proof of financial circumstances.

03:11 - 12.294 My understanding of the evidence provided in this particular case

03:11 - 15.897 was that he was unemployed because he lost his job

03:11 - 20.936 to miscommunication about job responsibilities and, that he claimed

03:11 - 24.406 he had no income or expenses as he was being supported by his brother.

03:11 - 28.510 So why does that not meet the requirement

03:11 - 32.647 of a an affirmative proof of inability?

03:11 - 34.249 What is it that you're requesting?

03:11 - 37.886 If you're saying that that information is insufficient,

03:11 - 41.590 what proffer of evidence is required?

03:11 - 46.595 I believe, Your Honor, that he should have probably brought

03:11 - 51.132 in the documentation that was demanded of him on the order to appear for him.

03:11 - 55.136 But ultimately, that's a question for the court, and it's not one

03:11 - 58.440 that I will presume to say there's a right or wrong answer for.

03:11 - 01.443 So, but that that could have been a separate contempt.

03:12 - 02.310 Right.

03:12 - 04.045 I suppose it could have. The trial court said.

03:12 - 06.281 It could have said, yes, I'm going to throw you in jail

03:12 - 09.684 until you have someone produce this documentation

03:12 - 12.854 or you make I'll give you ten days to produce the documentation.

03:12 - 14.756 And if you don't, I'm going to throw you in jail.

03:12 - 16.458 That doesn't tie it to ability to pay.

03:12 - 19.861 It ties it to the ability that would be a separate contempt, Your Honor.

03:12 - 23.064 This is

03:12 - 26.635 we we have some interest in avoiding a multiplicity

03:12 - 31.339 of layered proceedings on these things because we trying to get them in and out.

03:12 - 36.411 That's we're subject to a federal efficiency standard standards.

03:12 - 40.615 So a lot of what I'm advocating is, is just practical stuff given.

03:12 - 43.018 But again the question is for the court.

03:12 - 46.354 So any answer that your honors will give us will be helpful.

03:12 - 47.956 When you say federal implications.

03:12 - 50.959 Are you talking for D. Yes, your honor.

03:12 - 53.094 Yeah we get

03:12 - 55.063 it's definitely an inconvenient thing.

03:12 - 59.334 But you know the the old saw that he has to have

03:12 - 02.904 the keys to his jail cell in his pocket, right.

03:13 - 06.675 Yes. Your honor, and I believe I even mentioned that in my reply brief

03:13 - 09.744 that I believe that should apply to the evidentiary matters as well.

03:13 - 12.948 You know, defendants should come into court prepared

03:13 - 16.251 to explain what he can do about the contempt.

03:13 - 21.156 So what is what is that?

03:13 - 22.390 Let me ask for justice. Danny.

03:13 - 24.626 What what is it that you want us to do?

03:13 - 26.127 This is your appeal.

03:13 - 27.195 I know, Your Honor.

03:13 - 30.198 I, as I said,

03:13 - 33.068 I believe the law is somewhat

03:13 - 35.737 less than clear on this procedural issue.

03:13 - 38.373 The rules are not much help.

03:13 - 40.208 You're talking of the rule for contempt.

03:13 - 44.679 Which rule you or the procedure of the procedure of what happened.

03:13 - 48.316 Like there's this reference in older cases to a bifurcated hearing.

03:13 - 51.519 And I believe my the public defender,

03:13 - 54.589 in her brief referred to that as well.

03:13 - 59.227 I that's not something that's clearly provided for by this court rules.

03:13 - 01.196 If this court finds that that's

03:14 - 04.666 something that's required in order to form an appropriate purge,

03:14 - 09.671 then an opinion from the court saying that would be helpful in terms of our

03:14 - 13.708 getting a procedure in place to make it work.

03:14 - 16.745 So are you asking us to modify or correct?

03:14 - 20.982 10.25 the enforcement of support

03:14 - 25.587 requests from us, not make the domestic rules relations.

03:14 - 28.556 I mean, it it might be.

03:14 - 30.158 I'm trying to seize from you. What?

03:14 - 31.926 You really okay?

03:14 - 35.096 It I mean, I do believe that it would be helpful to refer

03:14 - 37.098 all of these questions to the rules committee.

03:14 - 39.300 So there would be a statewide process.

03:14 - 41.770 And what is the question you think they should be?

03:14 - 47.142 A question is, once the defendant has been found in contempt, what happens next?

03:14 - 50.378 Does the defendant still retain.

03:14 - 53.815 Does it if it said in the case of defendant's

03:14 - 56.818 failure to comply with the order, is an affirmative

03:14 - 00.155 defense, is the defendant's failure to be able to make a purge?

03:15 - 02.991 Also something the defendant has to bring up?

03:15 - 04.592 How many issues do you have?

03:15 - 05.427 1 or 2.

03:15 - 08.263 It's I believe it's just one, Your Honor.

03:15 - 11.099 But it would be. It sort of splinters.

03:15 - 12.333 It's it's sort of.

03:15 - 15.203 Would it sort of splinters. It's okay.

03:15 - 16.971 The issue that you have in your brief

03:15 - 20.141 is the

03:15 - 24.279 question involved is, as stated in the Alcott or where a condom

03:15 - 29.417 nor after a finding of contempt posits that he is unable to pay a purge,

03:15 - 34.155 does the condom nor waive the issue if he fails to proffer

03:15 - 37.625 affirmative proof of his financial circumstance?

03:15 - 40.562 Is that that's a fair statement, Your Honor.

03:15 - 43.264 I mean, that's that was what I wrote when I wrote the petition

03:15 - 44.766 to write the brief.

03:15 - 45.600 I wrote the brief.

03:15 - 47.268 I read the petition for Ali Carter.

03:15 - 52.540 I, I mean, I think it is another way of putting it is

03:15 - 56.511 I don't think there should be a presumption of inability to pay,

03:15 - 01.316 but I you're not you're not as a waiver might also be the wrong word.

03:16 - 06.421 You're simply saying you want us to say that when a,

03:16 - 10.258 a person is held in contempt for failure to pay a support order,

03:16 - 15.597 and the judge chooses as the punishment for the contempt imprisonment

03:16 - 21.269 with a purge, that there is a presumption that they can pay

03:16 - 26.007 unless the condemned nor establishes an inability to pay.

03:16 - 29.744 Yes, Your Honor, I will go with that.

03:16 - 33.648 Or I don't even necessarily would say established, but at least provides

03:16 - 38.920 some sort of which which a judge can credit, not credit with,

03:16 - 43.291 which I struggle with, because our rule actually requires the judge to make

03:16 - 48.329 a finding of ability to pay beyond does reasonable, beyond reasonable doubt.

03:16 - 54.169 And that's why if we create a presumption, it seems to be contrary to a rule.

03:16 - 56.805 So I think since this is really we're taking this

03:16 - 00.441 this case is mood, we're taking this on the principle.

03:17 - 02.510 At this point in time, we have two options.

03:17 - 06.781 We either issue an opinion that augments or adds meat to the rule.

03:17 - 09.117 On this issue of burden shifting.

03:17 - 13.188 Or we refer to our rules committee and let them sort it out for future cases.

03:17 - 15.623 Fair enough, Your Honor.

03:17 - 18.793 I mean, I know this is the specific,

03:17 - 24.098 the question I don't think is moot, but the what to do about it in

03:17 - 28.002 the future is still important enough that I would ask the court to consider

03:17 - 32.841 there's not any issue in this particular case that you're seeking redress.

03:17 - 36.277 No. Mr. Hall is out.

03:17 - 38.246 I believe his order is actually suspended right now,

03:17 - 40.381 because he finally came in with medical evidence

03:17 - 41.950 that we've been asking for for years.

03:17 - 44.953 But it's not with regard to this case.

03:17 - 48.590 It's with regard to all future cases that will involve this same fact scenario.

03:17 - 51.426 And what was the request of the doctor for the content?

03:17 - 54.929 Were you asking that you be incarcerated as a result of civil contempt?

03:17 - 59.067 I mean, criminal contempt, or considering this was a purge factor,

03:17 - 01.135 one would have to assume

03:18 - 04.038 have a contempt which would have required his present

03:18 - 07.775 ability to pay, which I think the court may have overstepped its boundary

03:18 - 10.945 by imposing a fee without a purge amount,

03:18 - 14.949 without a proper hearing, as his inability or ability to pay.

03:18 - 16.718 We were we.

03:18 - 18.987 We prefer civil contempt, Your honor.

03:18 - 21.022 The judge, Charles,

03:18 - 24.993 in I hate to wander into the realm of anecdotal

03:18 - 29.964 things that have happened after the record on this case, but Judge Charles is taken

03:18 - 33.368 to citing them for criminal contempt, which we actually don't like.

03:18 - 36.204 We want the we want them to have a monetary purge.

03:18 - 39.207 We want that purge to be in accordance with the law.

03:18 - 42.343 The biggest question is how do we get it in front of the court,

03:18 - 45.847 and is it the defendant's responsibility to bring it up in the first place?

03:18 - 49.584 So are you saying that particular judge

03:18 - 53.554 is utilizing a criminal contempt procedure

03:18 - 56.724 for what you're requesting to be a civil contempt procedure?

03:18 - 01.696 Because there's two huge difference there.

03:19 - 03.398 Appointment of counsel in the criminal.

03:19 - 05.199 Well, he does this pay.

03:19 - 06.968 And with the purge factor on the civil.

03:19 - 10.638 Yes. I'm aware of of I think that's

03:19 - 14.542 what I'm trying I'm trying to find out where you're ask what you're asking us.

03:19 - 16.878 Okay. It's

03:19 - 19.881 it's in this particular case,

03:19 - 23.418 Judge Charles believed that Mr.

03:19 - 25.153 Hall could pay $2,000.

03:19 - 28.156 And the reason was probably, as I had mentioned,

03:19 - 32.660 because of his history on the case, it was not really because of evidence

03:19 - 35.964 that was brought up at the hearing, the evidence.

03:19 - 39.133 So are you. And so that's what we have.

03:19 - 43.338 I would like the court to clarify that when the defendant says

03:19 - 46.607 the purge is unaffordable, the defendant.

03:19 - 50.345 Has to bring that up.

03:19 - 53.648 And I and to be fair, Attorney Thibeault did attempt to bring it up

03:19 - 57.819 at the very end of the hearing, but I how would he prove that he has no money

03:19 - 01.622 other than saying, I don't have any money, but I'm not sure, Your Honor.

03:20 - 04.892 And I don't know how he would prove that he does have money.

03:20 - 07.895 Well, but but I mean, that's sort of the dilemma.

03:20 - 09.797 So we keep saying, what do you want us to do?

03:20 - 11.699 I mean, if he testifies, I mean,

03:20 - 15.069 and is the justice pointed out, you can cross-examine him.

03:20 - 16.738 You know.

03:20 - 19.607 Did you have a job?

03:20 - 20.575 Can you quit your job?

03:20 - 24.645 I mean, you know, there there are things that that that could be done and

03:20 - 28.716 and why are you adverse to using, indirect career criminal contempt?

03:20 - 32.987 I mean, the rules for, let's say, choice, your Honor.

03:20 - 33.988 Pardon me.

03:20 - 36.991 That would be more of a policy choice, your honor.

03:20 - 38.960 Your power with regard to our office.

03:20 - 43.464 And there's a sort of queasy prosecutorial function

03:20 - 47.001 is that it is very much

03:20 - 50.138 my belief and that of the department director

03:20 - 53.508 with my work, that we prefer there to be civil contempt,

03:20 - 57.278 because the purpose of contempt proceedings is to collect money.

03:20 - 00.882 It is not to specifically to punish the defendant for counsel.

03:21 - 04.085 My understanding from the facts of this case

03:21 - 08.156 was that this individual had been brought forth to the court on several occasions

03:21 - 12.994 and held in contempt, and prior to the contempt finding he would pay the

03:21 - 16.397 you bring whip out some cash, the pay, the purse.

03:21 - 17.098 Is that true?

03:21 - 21.536 Yes, your honor, was that was that information brought forth by your

03:21 - 23.271 department

03:21 - 26.507 such that there be substantive evidence on that record

03:21 - 30.044 for the Judge Institute, a purge of that amount?

03:21 - 35.917 It was, Your Honor, but it was not formally shown on the transcript.

03:21 - 39.353 But we have a paper. I explain that to me.

03:21 - 44.225 That was who did your office introduce any evidence of his noncompliance,

03:21 - 49.230 except for the day of incarceration, when he would reveal his cash?

03:21 - 52.700 Yes, Your Honor, I mean that, but it shows the way that shows

03:21 - 56.671 is in the docket itself and on a document that we call a contempt court

03:21 - 00.374 case summary that is given to the judge, it's never it

03:22 - 04.145 has historically not been made an exhibit or anything like that.

03:22 - 08.149 And what it would show is that they have a copy.

03:22 - 10.017 Hang on

03:22 - 12.553 the record.

03:22 - 12.753 Yeah.

03:22 - 16.324 I mean, it's not on the record, which is why I didn't argue it in the brief. So.

03:22 - 18.860 Okay, anybody else have any questions?

03:22 - 19.494 Just one thing.

03:22 - 20.228 All right.

03:22 - 23.231 Counsel in, in, Lebanon County,

03:22 - 26.367 I assume or tell me if I'm wrong, the court

03:22 - 31.105 will presumably sometimes find the obligor in contempt

03:22 - 34.909 and, direct them to report

03:22 - 38.846 to the Dro or,

03:22 - 41.849 you know, some sort of ongoing,

03:22 - 45.520 manifestation of attempts to get work that's an available tool, isn't it?

03:22 - 48.389 Recently, yes, we've been doing that.

03:22 - 50.358 And I thank you, sir.

03:22 - 52.160 Thank you.

03:22 - 53.594 Okay,

03:22 - 56.597 let's hear from Miss Tidwell.

03:22 - 59.934 Good afternoon.

03:22 - 01.569 Your honors may please the court.

03:23 - 04.205 My name is Megan Tidwell, and I represent Mr.

03:23 - 06.207 Michael Hall.

03:23 - 08.543 A court cannot jail someone for civil contempt

03:23 - 11.546 unless it finds, based on the evidence, beyond a reasonable doubt,

03:23 - 14.248 that the person has a present ability to pay.

03:23 - 17.785 Our position is that duty belongs to the Commonwealth and the court,

03:23 - 20.788 and it cannot be waived by stipulation or assumption.

03:23 - 24.926 The Superior Court properly enforce that constitutional and statutory boundary,

03:23 - 26.527 and we ask this court to do the same.

03:23 - 30.831 Opposing counsel and I agree that the seminal case

03:23 - 34.001 instructing on this issue is Barrett v Barrett.

03:23 - 37.305 However, opposing counsel has also cited

03:23 - 42.376 ASR versus versus PW to argue that defendant

03:23 - 46.581 if defendant, fails to prove inability to pay during the contempt phase,

03:23 - 50.484 the trial court need not assess present ability to pay a purge.

03:23 - 53.054 And that's not what Barrett says.

03:23 - 55.590 And it cannot be what Barrett means.

03:23 - 57.925 Barrett holds

03:23 - 00.895 in imposing coercive imprisonment for civil contempt,

03:24 - 04.565 the court should set conditions for purging the contempt and effect

03:24 - 08.302 release from imprisonment with which it is convinced beyond a reasonable doubt,

03:24 - 10.705 the totality of the evidence before it

03:24 - 13.741 that contempt, or has the present ability to comply with the purge condition.

03:24 - 18.713 Counsel could I agree with you that that the rule

03:24 - 22.316 sort of puts the burden on the court

03:24 - 26.187 and not really on the parties in a way, the way it's worded?

03:24 - 29.991 We took this case because there's some advocacy

03:24 - 34.161 and some superior court decisions, I guess, on this burden shifting dynamic.

03:24 - 37.965 Would you have an objection to something that we issued that simply says, you know,

03:24 - 39.600 if a judge is going to do this,

03:24 - 41.769 the judge should give the parties an equal opportunity

03:24 - 45.606 to present whatever evidence they want to present on ability to pay,

03:24 - 48.276 not a burden shift or whatever, and just say,

03:24 - 50.077 you know, we're going to have a hearing.

03:24 - 52.647 I'll listen to whatever evidence you want to offer on ability to pay,

03:24 - 56.250 and then I'll set my my purge amount and just be done with it.

03:24 - 01.489 And so really keep the onus on the judge to do get to give the judge an opportunity

03:25 - 03.324 to ask the parties to submit whatever they want to submit.

03:25 - 06.193 And then the judge makes the call following this case.

03:25 - 06.594 Essentially,

03:25 - 10.498 that is what started to happen is that it would be a bifurcated process.

03:25 - 12.933 The contempt portion would go first. Are you in contempt?

03:25 - 13.734 Are you not?

03:25 - 18.873 And then later on down the road, we would have the sentencing hearing about

03:25 - 20.808 whether or not imprisonment was appropriate

03:25 - 23.244 based on whether or not he had the ability to pay

03:25 - 26.247 the way you do it in Lebanon County, they have a separate

03:25 - 29.884 a separate day that was not traditionally what had been happening.

03:25 - 33.154 It was after this case occurred that that started happening.

03:25 - 35.256 And I think we've pulled back on that since.

03:25 - 38.793 But I think we still run into the problem with people

03:25 - 41.796 arguing over whose burden it is to produce evidence.

03:25 - 44.932 And I would say we we would have that ability to pay hearing.

03:25 - 48.536 But if my client truly has nothing, I am a public defender.

03:25 - 51.806 So my clients are often people that are being brought in off the street.

03:25 - 55.276 They don't have homes, they don't have, jobs.

03:25 - 56.344 They don't have bank accounts.

03:25 - 00.715 If they truly, truly have nothing, they're going to come to court with nothing.

03:26 - 02.049 And if the truth is nothing,

03:26 - 02.750 they're not going to be able

03:26 - 04.518 to meet the burden that the domestic

03:26 - 08.522 Relations Office wants us to meet is to show some documentation of them.

03:26 - 10.224 That's why I'm saying just leave it open ended.

03:26 - 13.928 Just leave it open ended and say, because.

03:26 - 15.629 Because the contempt could be

03:26 - 17.465 contempt.

03:26 - 20.034 The contempt standard is willfulness.

03:26 - 23.738 So a person could have nothing but still be in contempt,

03:26 - 27.108 because the reason why they have nothing is they've chosen not to seek work.

03:26 - 27.575 I agree.

03:26 - 29.577 So they could be in contempt for that. Correct.

03:26 - 30.611 But when you get to ability

03:26 - 33.981 to pay, the fact that they have nothing is really when it comes into play,

03:26 - 36.884 not the reason they have nothing, not why they have nothing.

03:26 - 38.819 Because even if they're willfully unemployed,

03:26 - 41.155 they can't get employment while they're in jail to pay for it,

03:26 - 42.356 to pay for this, right?

03:26 - 43.157 I agree.

03:26 - 47.094 So what's wrong with just just us saying because I think, again, we're being asked

03:26 - 50.798 to just we took this to to sort of say what the what the standard is.

03:26 - 52.767 Why not instead of a burden shifting invitation,

03:26 - 55.770 we just say, if a judge is going to bifurcate this process,

03:26 - 58.906 the judge has a duty under the rule to make a finding, and the judge

03:26 - 03.010 should use the lawyers as the judges tool to get the information.

03:27 - 05.212 It's the judge's obligation,

03:27 - 08.916 because the judge can only make the determination based on the evidence.

03:27 - 12.753 I agree that is the judge's obligation.

03:27 - 14.955 And I'm fine with that.

03:27 - 20.694 I would point to Barrett, footnote three that still suggests

03:27 - 23.697 or instructs that the.

03:27 - 28.569 It says that since the proceeding in civil contempt remains

03:27 - 30.304 essentially civil despite quasi

03:27 - 33.107 criminal elements of the possibility of imprisonment,

03:27 - 35.142 our rules of civil discovery are applicable

03:27 - 37.812 and should be freely employed to aid the complaining party.

03:27 - 41.715 In this cases, the Domestic Relations Office should be freely employed to aid

03:27 - 44.718 the complaining party in attempting to prove the alleged contempt

03:27 - 48.322 present ability beyond reasonable doubt or past the alleged contempt.

03:27 - 51.292 But I don't disagree with you. The discovery rules aren't available.

03:27 - 53.994 Maybe the judge says I'm going to order expedited discovery.

03:27 - 57.998 You'll sit for a deposition tomorrow, bring all your documents,

03:27 - 00.234 and if you don't, I'm going to hold you in contempt again.

03:28 - 01.602 I'm not saying discovery's out there.

03:28 - 02.336 I'm just saying

03:28 - 05.539 instead of the burden shifting, why not put the burden on the judge?

03:28 - 09.310 I think there is a duty for the court.

03:28 - 13.047 But I also think there is a burden on domestic relations to prove

03:28 - 18.486 the inability to pay proves the positive that they are essentially sitting on,

03:28 - 22.556 in this case, $2,000, and they can put forth, give it over to their child

03:28 - 24.592 who needs the money and that will release them from jail.

03:28 - 26.594 You want us to say the see, that's what I'm saying.

03:28 - 27.761 You're you're advocating

03:28 - 31.599 for to put the burden on the Dro is advocating to put the burden on you.

03:28 - 34.602 And I'm suggesting there's a third option, which is the burdens on the court.

03:28 - 38.172 I think the burden must be on the domestic relations

03:28 - 41.175 office, the way that I think it's hand in hand with that.

03:28 - 44.411 Go ahead. Yeah. About, the,

03:28 - 47.781 suppose

03:28 - 51.385 the 40 attorney or the obligates attorney or both,

03:28 - 57.258 you listen to elicit evidence as I saw more than once when I was there.

03:28 - 00.828 Not as a judge,

03:29 - 03.831 not as an obligation or not,

03:29 - 06.667 that the, all blogger had very,

03:29 - 09.670 very recently, like, very recently

03:29 - 14.642 procured his inability to pay, perhaps by offloading cash

03:29 - 18.412 to a girlfriend or, buying a car

03:29 - 22.049 or parking cash elsewhere.

03:29 - 24.885 I want that to figure in the calculus.

03:29 - 27.922 Or would you maintain that,

03:29 - 32.393 that that kind of instrumental conduct has to be disregarded

03:29 - 36.597 because he literally doesn't have the cash in his pocket in the courtroom?

03:29 - 39.867 When I practice in a different county,

03:29 - 43.737 there was a case like that where he had just bought a $75,000 car,

03:29 - 47.808 but the defendant was arrogant enough to to say that in court.

03:29 - 50.844 And the judge did hold him in contempt in the purchase of $75,000.

03:29 - 52.680 I would not necessarily have an objection to that.

03:29 - 54.114 That's a liquid asset.

03:29 - 58.786 So so by hypothesis, say there was a $75,000 car purchase

03:29 - 00.654 that day or the day before.

03:30 - 03.524 Defendant is

03:30 - 09.597 is in contempt and shall purge himself of contempt by tendering $75,000

03:30 - 14.068 within 24 hours, or is is sentenced to county

03:30 - 18.272 jail, on a $75,000 purge.

03:30 - 23.177 Which which is the appropriate or acceptable it preferably

03:30 - 26.246 it would be time for him to go out and do that thing before going to jail.

03:30 - 27.414 But again, I don't

03:30 - 31.385 necessarily think that the court would be, wrong for opting for the second.

03:30 - 34.021 The second option, which is go directly to jail

03:30 - 38.325 and you have to tender $75,000, or if you want to be released, counsel

03:30 - 42.796 with regard to your concern of making the burden on the Dro.

03:30 - 45.132 The facts of this case are, as Mr.

03:30 - 50.304 Gregson indicated, the support docket sheet is part of the file,

03:30 - 54.074 I assume, which is hypothetically marked and moved into evidence.

03:30 - 57.411 Is that sufficient for their burden to prove

03:30 - 59.480 that, your

03:30 - 03.450 client has been held in contempt previously and has cash?

03:31 - 05.185 It seems to be a practice

03:31 - 08.922 that he waits until he's going to be incarcerated before he pays.

03:31 - 11.158 I wouldn't have an objection to it being made

03:31 - 15.062 part of the record as an exhibit, but I do think any history, in this case,

03:31 - 17.097 I think at the time, it was ten years of history

03:31 - 21.368 that the court had had with this, client that would go more toward phase one,

03:31 - 26.073 perhaps whether or not he is in contempt, but whether he has a history

03:31 - 28.609 of showing up to court and tendering a couple thousand dollars

03:31 - 30.978 to settle his case wouldn't have any bearing on.

03:31 - 35.282 Does he have $2,000 today to put toward a purchase, hypothetically,

03:31 - 37.851 that I see a history. I'm the sitting trial judge.

03:31 - 40.087 I see a history of him bringing out anywhere

03:31 - 43.824 from 1000 to $1500 every time I'm about to sentence him to jail.

03:31 - 47.461 Why could I not, if that's part, of the record

03:31 - 50.898 for me to say I'm holding you in contempt, I'm sensing I'm.

03:31 - 55.602 I'm sentencing you to 30 days in jail with a factor of $1,500.

03:31 - 59.239 If I get that $1,500, he doesn't go to jail.

03:31 - 00.507 But at least I've gotten it.

03:32 - 01.542 And it proves that. Pardon?

03:32 - 04.978 I'm just trying to find you the the framework

03:32 - 07.981 that you're seeking for the burden of proof.

03:32 - 12.619 I think that pattern would cut in the defendant's direction.

03:32 - 15.055 That pattern would show that

03:32 - 19.226 the course of tool does actually work when he has the funds available.

03:32 - 22.229 So ten times we said approach at $2,000.

03:32 - 24.231 You could show up to court and you pay $2,000.

03:32 - 25.466 It's because he had it.

03:32 - 28.068 He has shown that when he has that money, he will pay it.

03:32 - 33.173 And now we're at a penalty phase that the well has run dry and there's no evidence

03:32 - 37.111 that he has any money on to punish him or get money for the children.

03:32 - 42.316 Yet we need to keep civil contempt coercive if we do not have any evidence

03:32 - 45.452 that he has a certain amount of money, then it's not coercive anymore.

03:32 - 46.587 He can't pay it.

03:32 - 48.555 He's going to sit in jail and the child doesn't get money.

03:32 - 51.925 Yeah.

03:32 - 55.295 I mean, and and I tell you, your position also is that the,

03:32 - 58.599 upon a finding of contempt of court

03:32 - 01.602 has other arrows in its quiver.

03:33 - 04.738 Besides the immediate incarceration, it can suspend a sentence.

03:33 - 08.909 If, you know, if it finds evidence

03:33 - 12.045 of an imminent ability to pay, you know, like by tomorrow or the next day.

03:33 - 14.715 Suspend a sense, provide for a bench warrant.

03:33 - 17.584 Right. That rat.

03:33 - 20.921 You know, the problem in this case is the immediate incarceration.

03:33 - 25.058 Without promising in on a present ability to pay.

03:33 - 27.427 Isn't that the problem? It is.

03:33 - 29.296 Yes, sir.

03:33 - 29.630 All right.

03:33 - 32.499 Any other questions for Miss Tidwell?

03:33 - 34.535 Thank you both very much.

03:33 - 37.204 Our next case is Commonwealth versus Jenkins,

03:33 - 39.606 which concerns alleged prosecutorial misconduct.

03:33 - 41.608 During a closing argument,

03:33 - 44.144 the accused was charged with rape from conscious victim

03:33 - 48.582 and kidnaping to facilitate a felony after an instance took place in 2017,

03:33 - 52.019 a few days after night in question, law enforcement arranged

03:33 - 55.088 for a conversation between the accused and the victim's now husband,

03:33 - 59.393 can which the husband was equipped with a listening device has an accused what?

03:33 - 01.295 He would do something like this to the victim.

03:34 - 04.431 The accused denied having sex with the victim or any wrongdoing.

03:34 - 08.402 Accuser also made identical denials during subsequent telephone conversation

03:34 - 11.338 that he and his attorney how with the detective.

03:34 - 14.708 Both conversations occurred before police said changing the result of a rape

03:34 - 18.545 kit performed on the victim, revealing the presence of the accused DNA.

03:34 - 22.649 At the ensuing jury trial, the prosecution referenced the accused reliance

03:34 - 26.053 upon an attorney during Pre-arrest conversation with the detective.

03:34 - 29.356 Specifically, the prosecution said during closing arguments

03:34 - 32.359 in part, quote, what does the accused do?

03:34 - 34.761 He knows.

03:34 - 36.263 What did the accused do?

03:34 - 39.032 He knows the importance of all this. He gets a lawyer.

03:34 - 40.434 He gets an attorney.

03:34 - 42.870 This isn't some schlep who just went in and spoke to the police,

03:34 - 45.873 that the benefit of having someone there to protect your rights. No.

03:34 - 50.043 He goes in with an attorney, close quote, adding moments later, quote,

03:34 - 53.313 what does he do when he has time to come clean?

03:34 - 55.682 He lies, he lies close.

03:34 - 58.986 Quote the accused object to the statement and move for mistrial.

03:34 - 02.723 The trial court denied the motion, instead issued a curative instructions

03:35 - 05.826 to the jury materials and give it to the accused on both counts.

03:35 - 09.329 Trial court sentenced him to 10 to 20 years in prison.

03:35 - 13.300 The accused appeal the Superior Court, arguing that the prosecution statements

03:35 - 16.103 and subsequent denial of his request for mistrial

03:35 - 19.072 deprived him of his constitutional right to a fair trial.

03:35 - 21.909 Under the Sixth Amendment to United States Constitution.

03:35 - 23.477 Superior court disagreed.

03:35 - 26.947 Noting that while the trial court agreed that the prosecutor's comments, quote,

03:35 - 31.184 appeared to be improper, close quote, it ruled they were not so prejudicial

03:35 - 32.886 as to prevent a fair trial,

03:35 - 35.856 especially because they incurred instructions prior to the jury.

03:35 - 39.126 Superior court concluded that the trial court did not abuse its discretion

03:35 - 40.627 in denying the accused.

03:35 - 44.264 This trial request, the accused sought review from the Pennsylvania

03:35 - 47.401 Supreme Court, and the court accepted review on the following question.

03:35 - 48.602 Quote.

03:35 - 49.569 Whether the Superior Court

03:35 - 52.572 aired and holding that the Commonwealth's impeachment of a defendant

03:35 - 56.143 through reference to a defendant's pre-arrest retention of counsel,

03:35 - 59.513 does not deprive a defendant of a right to a fair trial

03:35 - 02.382 and is subject to harmless error analysis because, quote,

03:36 - 04.251 the accuser argues

03:36 - 08.021 in his brief that the Superior Court in affirming the trial court's denial.

03:36 - 09.723 In this trial.

03:36 - 11.825 The accused contends that while the Sixth Amendment does not

03:36 - 15.362 protect defendant's right to counsel for the initiation of proceedings,

03:36 - 19.099 the 14th Amendment to United States Constitution requires a prosecutor

03:36 - 22.536 not to weaponize the retention of counsel to imply guilt.

03:36 - 24.938 The accused maintains that the Commonwealth asserted

03:36 - 27.107 that he lied during his pre-arrest conversation

03:36 - 31.278 with the detective, bolstered by mention of counsel, according to the accused.

03:36 - 35.315 Such error was structural, not harmless, necessitating a new trial.

03:36 - 37.884 Come off the other hand, are using its brief.

03:36 - 38.418 Its fair court

03:36 - 42.522 properly held the Commonwealth's reference in closing arguments to the accused.

03:36 - 47.594 Pre-arrest retention of counsel did not deprive him of the right to a fair trial.

03:36 - 51.331 The Commonwealth, alternatively, contends that any error was harmless

03:36 - 54.434 beyond a reasonable doubt and weight of the overwhelming evidence

03:36 - 57.704 of the accused guilt and the trial court's curative instruction.

03:36 - 01.875 Let's watch and listen to the oral argument and Commonwealth versus Jenkins.

03:37 - 03.810 Thank you, Your Honor.

03:37 - 04.811 Spencer Bradley

03:37 - 08.815 for Ronald Jenkins with the Dauphin County public defender's office.

03:37 - 10.650 May it please the court?

03:37 - 13.653 Before I begin, I do wish to, give,

03:37 - 18.625 consideration to the work of the old, amicus brief in this matter.

03:37 - 21.628 Professors, Professor

03:37 - 24.865 Epstein and, Brian McNeil out of York.

03:37 - 27.868 I value their work in this.

03:37 - 32.806 In this case, prosecutor used the fact that Mr.

03:37 - 37.677 Jenkins, prior to being arrested, prior to charges being filed,

03:37 - 41.982 spoke with an attorney and brought an attorney to an interview,

03:37 - 46.853 and, crucially, used that action by him to impugn

03:37 - 50.590 something negative as consciousness of guilt.

03:37 - 54.594 We are seeking this court to hold that a prosecutor

03:37 - 58.265 cannot refer to a defendant's pretrial retention of counsel,

03:37 - 03.570 because that is a violation of the Due Process Clause, is the due process

03:38 - 06.673 at trial?

03:38 - 09.476 In candor, Your Honor, I was not the trial attorney.

03:38 - 14.881 However, the the allegation of a mistrial at its core

03:38 - 19.252 is in many ways alleging a violation of the due process Clause.

03:38 - 23.757 A mistrial is saying my right to a fair trial has been violated.

03:38 - 25.158 The whole thing needs to be scrapped.

03:38 - 30.497 And we have to start by fair recollection that the objection that was raised

03:38 - 35.602 to this testimony in the closing statement of the prosecutor, I believe,

03:38 - 39.940 was, raised as prosecutorial misconduct.

03:38 - 44.911 It was raised as essentially the Commonwealth's attorney,

03:38 - 48.448 violating his right to a fair trial is,

03:38 - 54.321 right to counsel was also thrown in there by the, trial attorney, in essence.

03:38 - 57.757 The sought relief was that this

03:38 - 01.461 and the reason I proceeded on appeal

03:39 - 05.098 as a due process theory rather than some other theory, is

03:39 - 08.168 because it fits more cleanly

03:39 - 11.671 in saying his right to a fair trial was violated.

03:39 - 12.506 Therefore,

03:39 - 16.009 the whole thing needs to be thrown out vis-a-vis a mistrial being granted.

03:39 - 19.112 So is this a 14th amendment case, or is this a Sixth Amendment

03:39 - 20.313 right to counsel case?

03:39 - 24.818 I believe I believe, consistent with the courts that have analyzed this issue.

03:39 - 29.823 Your honor, the 14th amendment makes more sense, for this type of claim.

03:39 - 33.827 And the reason behind that is the Sixth Amendment or,

03:39 - 34.961 the Pennsylvania equivalent.

03:39 - 37.831 Only attaches once charges have been filed.

03:39 - 42.736 So I'm not trying to seek an expansion of you have a right to counsel

03:39 - 48.308 at every conceivable mode moment or when the Commonwealth starts

03:39 - 51.344 looking at, you know, if you're arguing this is a due process

03:39 - 54.414 violation, which I think you are on the 14th amendment.

03:39 - 58.585 Yes. So I'm clear, and I want to frame and put your argument in proper context.

03:39 - 01.955 Are you claiming this is a trial court error subject to a harmless error

03:40 - 05.425 analysis, or is this a structural error requiring

03:40 - 08.361 a mistrial?

03:40 - 12.566 We our position would be, initially it's structural error.

03:40 - 17.337 I mean, the three portions of this argument is one, it's error to

03:40 - 23.210 we believe, both myself and Mickey believe that it is a structural error.

03:40 - 27.414 But even if it is subject to harmless error, we would win under that analysis.

03:40 - 30.984 But our first thrust of our harmless error analysis.

03:40 - 34.321 You think you would win under a harmless error analysis.

03:40 - 36.356 If it's a trial court or

03:40 - 39.292 our position would be that under harmless error

03:40 - 42.929 if we're going to talk about that is for the three sort of categories

03:40 - 46.032 of harmless error you have, whether it's a de minimis error.

03:40 - 50.937 Well if this court holds that it's a constitutional error consistent with,

03:40 - 54.507 this court's cases and Rivera,

03:40 - 57.844 a constitutional violation, we can't call that de minimis.

03:40 - 58.144 Right.

03:40 - 59.713 So throw that one out.

03:40 - 01.781 It's not cumulative in any way.

03:41 - 03.350 It's not adding to anything.

03:41 - 06.019 It's not like if it's a constitutional error

03:41 - 08.722 it's it's got to be by definition, it's got to be a structural error.

03:41 - 11.625 Well, not necessarily necessarily.

03:41 - 13.493 Yeah. Not necessarily, Your honor.

03:41 - 15.295 Other constitutional errors.

03:41 - 18.999 As much as I would love this court to expand the definitions

03:41 - 22.802 of structural error to include all violations of the Constitution.

03:41 - 25.905 Now's your opportunity.

03:41 - 27.674 Respectfully, Your Honor, I.

03:41 - 29.909 That was not the question I sought relief on.

03:41 - 31.945 I will be more than happy to add that to,

03:41 - 36.016 my list of issues to continue preserving.

03:41 - 41.888 But the current state of the law is each error is then analyzed

03:41 - 45.358 for whether it falls within the structure or harmless error analysis.

03:41 - 48.528 It is our position that this type of error,

03:41 - 54.100 while it does occur during a trial, I will concede that that's not the test.

03:41 - 57.804 Pursuant to Weaver that determines whether this is

03:41 - 01.308 or is not a structural or harmless error.

03:42 - 04.644 But while it is true,

03:42 - 08.615 most trial errors will fall within that

03:42 - 12.652 harmless error analysis because you can have a curative instruction.

03:42 - 16.523 For example, at trial there was a curative instruction grant.

03:42 - 20.527 Given, Your honor, that's also part of the reason why,

03:42 - 26.399 structural error to our position is the stronger avenue.

03:42 - 29.302 It's a pretty good curative instruction.

03:42 - 33.940 I would find some fault with, the curative for, a few reasons.

03:42 - 37.510 At first glance, I would concede that the trial court

03:42 - 41.314 attempted to salvage what had happened.

03:42 - 45.251 I put full faith behind the the court behind that.

03:42 - 48.321 The problem with this curative instruction, though, is one,

03:42 - 51.858 it talks about burdens and not to alleviate burdens, but

03:42 - 55.395 it's not a targeted curative instruction to what actually was said

03:42 - 00.834 and most importantly, or crucially, as to the defect in the curative.

03:43 - 03.503 Is it? Asked the jury.

03:43 - 06.806 We're asking you not to consider this thing.

03:43 - 10.643 I know that's somewhat semantics here,

03:43 - 13.880 but asking the the jury to do something

03:43 - 17.083 is markedly different from telling them.

03:43 - 20.320 You heard the Commonwealth make a inference

03:43 - 23.256 towards his retention of counsel.

03:43 - 25.492 Get rid of it from your mind. Don't consider it.

03:43 - 27.594 If that

03:43 - 30.764 curative instruction was given, and this court

03:43 - 33.767 were to find that this type of error is subject to harmless error,

03:43 - 37.737 I might be in a very different, situation.

03:43 - 41.775 In all candor, we have applied a harmless error analysis

03:43 - 44.911 for references of the right to remain silent.

03:43 - 48.481 If we were to follow your logic, what becomes of those cases?

03:43 - 52.485 Well, I think, candidly, going to, justice,

03:43 - 56.022 McCaffrey's point is now we would have to start, you know,

03:43 - 59.025 reconsidering under you know,

03:43 - 01.795 Chapman is the seminal case in this area, right?

03:44 - 04.764 Chapman says, you know, the starting point

03:44 - 07.801 is harmless error, but that's not the the ceiling.

03:44 - 10.703 That's the floor we would have to consider.

03:44 - 15.542 And we could consider whether these constitutional errors really are

03:44 - 20.580 based off of the effect of those violations, as,

03:44 - 23.716 you know, subject to harmless error,

03:44 - 26.886 or are they actually touching on something a little greater?

03:44 - 30.256 And as this court noted in its,

03:44 - 33.726 commentary about the exclusionary rule in Pennsylvania,

03:44 - 36.863 we don't have an exclusionary rule like the feds do

03:44 - 41.000 to just punish the government for, you know, finding something illegally.

03:44 - 44.804 That's not why we put a lot of faith behind something like the exclusionary

03:44 - 45.305 rule.

03:44 - 49.209 We do it to vindicate our citizens constitutional rights.

03:44 - 51.444 And thus, if this was presented,

03:44 - 54.781 as, you know, under,

03:44 - 57.917 Pennsylvania constitutional analysis or under Pennsylvania law,

03:44 - 02.589 those rights, while may be subject federally under a federal claims

03:45 - 05.592 analysis to harmless error in the federal jurisdictions,

03:45 - 09.095 don't follow the same path in Pennsylvania.

03:45 - 14.567 But to that point, about the considerations here, it's not just Mr.

03:45 - 18.805 Jenkins who is affected by this type of logic here.

03:45 - 19.739 Right?

03:45 - 22.976 It one of the things that makes an error structural

03:45 - 27.747 is whether it protects some other interests, some other thing

03:45 - 31.951 to protect, other than just his specific right to a fair trial.

03:45 - 36.189 And across the Commonwealth as a he points out

03:45 - 40.193 rather persuasively in their brief

03:45 - 44.397 is that from the moment someone thinks they've committed a crime,

03:45 - 47.400 not even has started being charged,

03:45 - 50.136 has been charged, has been arrested,

03:45 - 52.405 they have an interest

03:45 - 55.108 in seeking out learned criminal defense counsel.

03:45 - 59.145 I'm a public defender, so I don't get to necessarily handle those moments.

03:45 - 03.149 But what I will say as far as experience goes is the times

03:46 - 06.352 where council has the ability to work

03:46 - 11.057 with someone and either mitigate, explain,

03:46 - 14.794 provide evidence, facilitate the investigative practice.

03:46 - 19.432 Yes, those are important societal steps and society has an interest.

03:46 - 20.633 The defendant has an interest.

03:46 - 23.870 The accuser has an interest in being able to go talk to an attorney

03:46 - 27.240 and not have that kind of what the trial judge said in his curative

03:46 - 30.543 instruction that, you know, it's reasonable

03:46 - 35.248 for a person accused of a crime to consult with counsel.

03:46 - 37.116 And, you know, he's entitled to do so.

03:46 - 39.652 He has a constitutional right to do so.

03:46 - 43.189 I think the curative instruction kind of,

03:46 - 47.827 you know, lessened any impact,

03:46 - 52.732 negative impact that, the reference to the hiring an attorney had

03:46 - 57.804 respectfully, Your Honor, based off of the, distinctions

03:46 - 00.807 that I pointed out with my analysis

03:47 - 04.777 of the insufficiency, I suppose you could say of the curative instruction,

03:47 - 09.849 I would rely on essentially the proposition that the trial court,

03:47 - 13.753 perhaps assuming that this would be subject to harmless error,

03:47 - 17.590 is going that route to try and cure it is a via curative instruction.

03:47 - 21.194 It is my position as well as his position,

03:47 - 25.064 as I'm kind of stealing from them that this is subject to structural error

03:47 - 28.801 because of the interest that Judge Tolley did.

03:47 - 30.770 You know, articulate.

03:47 - 32.872 I'm not taking issue with that.

03:47 - 35.475 And I'm not necessarily even taking issue with the trial

03:47 - 38.478 court's attempts to salvage this trial.

03:47 - 41.347 But counsel, the only issue that we took

03:47 - 43.783 is whether this was structural error

03:47 - 48.454 or, trial error, subject to harmless error.

03:47 - 51.791 Yes. It's we have a binary choice here, right? Yes.

03:47 - 54.694 I guess we can say it was an error at all, but I'm not sure.

03:47 - 58.831 But we're not here to decide whether it satisfies harmless error.

03:47 - 02.268 You didn't ask us to decide whether

03:48 - 06.039 if we say it's a trial error and harmless error applies.

03:48 - 07.674 This was not a harmless error.

03:48 - 10.443 You didn't ask us to decide that question.

03:48 - 12.478 I would I would concede that, Your Honor.

03:48 - 16.382 Because if a harmless error was, you know,

03:48 - 20.920 applicable here, the analysis by the majority opinion,

03:48 - 24.924 below probably satisfies that level of analysis.

03:48 - 27.293 However,

03:48 - 30.163 I would say that

03:48 - 34.233 in determining whether it is subject to harmless error

03:48 - 39.739 or not subject to or subject to structural error, that's the.

03:48 - 42.809 That's sort of.

03:48 - 44.577 Yes, that's the question that in other words,

03:48 - 47.580 the only way you win is if you convince us that this was structural error.

03:48 - 50.616 Yes. Okay.

03:48 - 53.052 I could try to be cute and try and backdoor

03:48 - 55.254 some form of issue preservation here, but I'm not.

03:48 - 56.222 I don't be down that route.

03:48 - 59.292 It's just not a I just tell us, right.

03:48 - 03.496 Why it's structural error and and I think it, you know, goes to one

03:49 - 06.666 that first element that it's protecting some other interest.

03:49 - 11.337 I think, you know, while it's not a Sixth Amendment claim, it's sort of

03:49 - 16.075 circling the, you know, it's knocking on the door of the Sixth Amendment.

03:49 - 19.112 It's knocking on the door of the accused to be able

03:49 - 22.115 to essentially find a way to defend themselves.

03:49 - 25.885 You know, once you have a type of violation

03:49 - 30.690 where a defendant could be punished for their consultation with an attorney,

03:49 - 33.459 you know, as the Commonwealth points out in their brief,

03:49 - 37.196 he would have had a decision then he could have not talked to counsel

03:49 - 40.500 if he didn't want that to potentially be used against him.

03:49 - 42.301 That's sort of the you know,

03:49 - 45.138 externality of

03:49 - 48.141 not viewing that is an important societal interest.

03:49 - 51.878 The other two aspects of Weaver, I think, you know, weigh in favor

03:49 - 55.548 of viewing this is structural, is that whether it's too hard to measure?

03:49 - 01.154 I mean, there is a cultural phenomenon of lawyering up.

03:50 - 04.090 You know, you can't

03:50 - 07.026 prevent a jury from

03:50 - 10.463 speculating and thinking about, well, you brought a lawyer there.

03:50 - 11.998 Why would you bring a lawyer unless you're guilty?

03:50 - 13.232 There's that stigma there.

03:50 - 16.402 That and to the curative instruction point

03:50 - 20.006 is there's the within the record.

03:50 - 23.609 There's the, defense argument.

03:50 - 26.045 There's an argument, there's the Commonwealth's argument.

03:50 - 31.250 Defense counsel then objects there is approaching to discuss that issue.

03:50 - 33.052 It is denied.

03:50 - 36.656 And then the jury instructions begin generally.

03:50 - 39.659 And the curative,

03:50 - 43.296 instruction is then given kind of in the middle of it.

03:50 - 46.465 It's not necessarily as responsive to that issue.

03:50 - 50.303 And if you're arguing to us that it's a structural error, it doesn't matter.

03:50 - 54.073 It doesn't matter how effective that curative just instruction was.

03:50 - 55.508 Right. And that in. That's correct.

03:50 - 59.612 But to the point of trying to figure out the second lever

03:50 - 01.480 factor of too hard to measure.

03:51 - 04.650 That's where I'm sort of thinking or conceptualizing.

03:51 - 09.388 Like where is that inability to really qualitatively analyze?

03:51 - 11.724 How do you view that error?

03:51 - 15.695 This isn't necessarily as and to be clear

03:51 - 20.266 about what I'm asking here is the error isn't necessarily

03:51 - 23.736 the jury hearing that counsel had been retained.

03:51 - 26.572 That's not what I'm here to discuss.

03:51 - 31.210 The issue is how that's been used by the Commonwealth.

03:51 - 34.614 And that goes to the third factor of fundamental fairness.

03:51 - 38.584 There's a difference between, you know, referencing somebody, you know,

03:51 - 43.556 non, actions that have no bearing on guilt or innocence

03:51 - 47.493 and using that against them as some form of consciousness of guilt.

03:51 - 50.129 This is using,

03:51 - 53.933 you know, free association in essence, you know,

03:51 - 57.737 if you really want to keep adding on, you know, societal interests here,

03:51 - 01.807 the interest of people to be able to communicate freely,

03:52 - 04.610 participate in commerce and protect themselves

03:52 - 08.681 when they're facing down the potential life altering consequences

03:52 - 12.018 of prosecution and understanding what's going on.

03:52 - 17.924 And in this case, what's done is to say he lawyers up and then what does he do?

03:52 - 20.927 He doesn't essentially admit to anything.

03:52 - 22.094 He lies.

03:52 - 23.796 And that's the problem.

03:52 - 25.131 Well, that's what I didn't even understand.

03:52 - 28.668 I had a hard time connecting the lawyering up thing with lying.

03:52 - 33.572 I, I didn't even understand how the two were connected.

03:52 - 35.608 Is it is were they

03:52 - 39.412 suggesting to the jury that immediately when you hire a lawyer, you start lying?

03:52 - 42.281 And that's that seems to be the the issue.

03:52 - 44.383 I mean, that's our position is that's the issue.

03:52 - 45.685 There's no reason to say that

03:52 - 48.688 doesn't say a lot about our defense bar in Dauphin County.

03:52 - 53.125 You know, that that hire the lawyer will tell you to lie about,

03:52 - 56.996 you know, it's it's really it's really they were

03:52 - 00.132 they were private counsel, so I can't defend them too much.

03:53 - 00.833 Counsel.

03:53 - 05.204 You know, I, I find that probably the most egregious part of what happened here.

03:53 - 05.905 Yeah.

03:53 - 10.076 I mean, there is an implication here that this lawyer was involved

03:53 - 11.210 with a deception.

03:53 - 14.013 I mean, this goes to the heart of

03:53 - 17.016 what attorneys are about in our society.

03:53 - 21.220 Why, potential defendants hire attorneys.

03:53 - 23.189 I mean, my question is,

03:53 - 24.757 did the

03:53 - 27.827 curative instruction here take into account

03:53 - 31.897 the egregious nature of the implications that were involved here? And.

03:53 - 33.466 No, no justice done here?

03:53 - 35.067 I don't believe it did.

03:53 - 39.805 And the, you know, not to belabor it too much, but that kind of goes to

03:53 - 42.808 when I said it focuses more on the burdens

03:53 - 45.878 that are applicable in this, case.

03:53 - 47.013 Right.

03:53 - 49.849 The trial court didn't attack

03:53 - 53.519 or try and actually cure what had gone wrong here.

03:53 - 57.356 What had gone wrong here was the Commonwealth's Attorney

03:53 - 01.293 respectfully gone over her skis and made a inference

03:54 - 06.432 that this defendant lied as the the Superior Court.

03:54 - 09.468 And I think Judge Lazarus has the,

03:54 - 12.204 you know, the the jumping to the end of the story.

03:54 - 14.273 Our position is Judge Lazarus had the right of it.

03:54 - 16.442 This isn't

03:54 - 20.246 a reference to, DNA or anything like that.

03:54 - 22.314 That doesn't come up at any point.

03:54 - 26.185 So this is in closing argument, jurors instructed.

03:54 - 29.188 But what the counsel say is not evidence.

03:54 - 32.725 How do how does this become structural when you have to weigh it

03:54 - 36.529 against the overwhelming evidence of guilt against your client?

03:54 - 39.865 My understanding, he claimed he didn't meet her.

03:54 - 40.933 He wasn't with her.

03:54 - 45.137 Yet the Commonwealth indicated him carrying the unconscious woman

03:54 - 48.474 wrapped up over his shoulder into the hotel room where he raped her.

03:54 - 52.445 I'm trying to understand the structural error

03:54 - 55.448 with regard to not only the normal jury instruction.

03:54 - 59.018 What counsel says is not evidence, but the curative instruction

03:54 - 03.055 based upon a statement in closing, not evidence.

03:55 - 08.160 Well, to that point, Your Honor, I think, two things.

03:55 - 13.599 One, if we simply rely on the, you know, arguments of counsel is not,

03:55 - 17.903 you know, evidence, then that effectively would defame

03:55 - 23.075 and defame, sorry, or foreclose really any challenges to,

03:55 - 27.480 any form of prosecutorial, commentary during,

03:55 - 30.549 closing argument,

03:55 - 33.986 you know, a prosecutor just to follow it out here,

03:55 - 38.124 if the prosecutor engages in full blown misconduct,

03:55 - 42.728 makes references to, you know, he he calls the defendant an animal.

03:55 - 44.964 Yeah. It's outrageous. Got that?

03:55 - 47.032 Yeah, he's making reference.

03:55 - 50.035 Well, if the.

03:55 - 56.642 If the Commonwealth is, if their arguments are not still analyzed

03:55 - 00.646 as to whether those arguments were violative of any rights,

03:56 - 04.049 then that curative instruction that says that's not evidence,

03:56 - 10.923 don't consider it is the defense that ability to bring forth that claim.

03:56 - 13.926 I think the proper analysis is to say

03:56 - 16.829 it was misconduct

03:56 - 19.031 necessitating a mistrial.

03:56 - 22.968 And the trial court aired in denying that request

03:56 - 26.305 and after the fact

03:56 - 28.908 issued that curative instruction.

03:56 - 32.344 Wash your these facts or your argument from our decision.

03:56 - 36.215 The Supreme Court's decision in Commonwealth versus right from 2008.

03:56 - 40.819 I think

03:56 - 44.723 the fundamental issue here in focusing in on.

03:56 - 45.624 Right.

03:56 - 50.095 And that was not, key part of any briefing on my end.

03:56 - 52.464 So I will not permit me.

03:56 - 55.334 We ruled the prosecutor's error in referencing

03:56 - 58.370 Wright's failure to testify was harmless, where one

03:56 - 01.974 the evidence of Wright's guilt was overwhelming, and two,

03:57 - 05.144 the trial court specifically instructed the jury

03:57 - 09.415 not to draw any adverse inference from the prosecutor's remarks.

03:57 - 12.585 That's what this court ruled.

03:57 - 16.288 And in a tell me White's different in 2025,

03:57 - 20.793 I think the difference is one, the defendant's

03:57 - 23.796 interest in Wright

03:57 - 28.467 was his his decision to or not to testify.

03:57 - 32.204 That's a fundamental decision that only a individual had.

03:57 - 35.207 So I apologize. I just let me add to that.

03:57 - 37.743 Commonwealth versus Wright dealt with the Fifth Amendment issue

03:57 - 40.779 that was right there, the very right, right.

03:57 - 41.914 Not to speak.

03:57 - 45.017 You've already indicated to us

03:57 - 49.021 that this does not invoke his Sixth Amendment Constitution.

03:57 - 50.823 We're one analogous to our own.

03:57 - 55.027 Therefore, there's the how are you comparing this case

03:57 - 59.765 with no constitutional implications over our decision that had a constitutional

03:58 - 03.636 I, I would I would disagree respectfully that this case

03:58 - 05.504 has no constitutional implication.

03:58 - 10.709 I would think the right to a fair trial, a trial where a defendant is not,

03:58 - 13.879 for example, referred to as an animal or,

03:58 - 18.984 you know, is there guilt or innocence or, you know, guilty or not guilty

03:58 - 22.855 status is determined by the evidence and not actions by the government.

03:58 - 25.958 That goes to the heart of a 14th Amendment analysis.

03:58 - 28.961 That could be true of every rule of evidence violation.

03:58 - 32.631 If we wanted to get hyper

03:58 - 36.001 academic about it, that would be the proper precedent.

03:58 - 39.004 Has ever accused me of being hyper academic, but well,

03:58 - 41.807 if we're going to go down that road, then

03:58 - 44.343 properly,

03:58 - 48.714 what defense counsel should do in evidentiary rulings that are against them

03:58 - 51.684 is to say it not only violates the rules of evidence, but

03:58 - 54.987 it violates my client's, you know, right, to a fair trial under the 14th.

03:58 - 58.023 Oh, but I'm just saying that every if you if you say that there's

03:58 - 01.960 this sort of the overarching right to a fair trial is a play

03:59 - 06.565 is it equivalent to what Justice Daugherty was pointing out, a Fifth Amendment

03:59 - 10.069 right to remain silent, and that being used against you,

03:59 - 15.841 the right to a fair trial is not being used against your client here.

03:59 - 19.178 Well, and that's what was that's what was at issue a right.

03:59 - 23.315 The Fifth Amendment assertion of a right was being used against the individual.

03:59 - 26.051 In that case, nothing was used against you here.

03:59 - 28.721 That rose to a constitutional right.

03:59 - 31.223 You're what was used against your client was

03:59 - 34.860 and I think completely appropriate was the fact that outside

03:59 - 36.995 of the context of Seventh Amendment for protection,

03:59 - 39.898 your client consulted with a lawyer, which was brilliant.

03:59 - 44.403 Most people should do that, but it didn't rise to the right violation.

03:59 - 46.905 It wasn't being used against you.

03:59 - 50.142 I think that's just to Socrates point is in right.

03:59 - 52.544 We have allowed it.

03:59 - 58.617 Actual adverse use of a constitutional right invoked by, that criminal defendant

03:59 - 04.289 to be used against them and nonetheless have said it's not structural error here.

04:00 - 05.057 No. Right.

04:00 - 07.326 That your client used was used against your client.

04:00 - 09.261 But you're saying structural error.

04:00 - 13.198 Well, I, I respectfully disagree with the

04:00 - 17.436 with Your Honor's analysis that there isn't a constitutional right at play here.

04:00 - 21.440 A right to a fair trial is to have the state

04:00 - 25.778 act in such a way that it is dealing with the evidence.

04:00 - 29.948 Every prosecutorial misconduct claim would, in essence, be a 14th

04:00 - 31.083 Amendment violation,

04:00 - 34.052 and every violation of the rules of evidence would be a 14th Amendment.

04:00 - 37.055 Well, well, if we're going to get, again, hypothetical,

04:00 - 41.994 I think one, I think you could preserve it as a due process claim.

04:00 - 45.731 I know habeas, counsel federally,

04:00 - 48.734 that's how they get their teeth into a case.

04:00 - 53.906 But secondly, I think in so far as there's a distinguished man, evidence

04:00 - 56.975 about what comes in at trial, right?

04:00 - 01.647 This is something that has nothing to do with guilt or innocence.

04:01 - 05.818 It is simply consultant consulting with an attorney and the Commonwealth

04:01 - 09.588 going around and saying, because you consulted with an attorney

04:01 - 15.160 there is some level of lying or malfeasance that went into your conduct.

04:01 - 18.964 And that's what makes this a 14th Amendment violation of a right.

04:01 - 22.167 That's what you're drawing, that's a conclusion

04:01 - 23.669 you're drawing from the comments.

04:01 - 25.504 But that isn't what the Da said.

04:01 - 32.878 Well, I would.

04:01 - 36.882 I wouldn't say it's just a drawing that I think everyone

04:01 - 39.885 but the Commonwealth in this case is,

04:01 - 44.289 conceded, or believed that there has been some form of,

04:01 - 47.826 error or misconduct by that by the court.

04:01 - 50.963 But, I'm saying what you just quoted was not a quote.

04:01 - 52.731 It was your description.

04:01 - 53.432 Your hair.

04:01 - 56.034 Fair, fair on what the Da said. Right.

04:01 - 00.906 I think insofar as to address, justice prompts and your point

04:02 - 04.510 about whether this is has any element of constitutional analysis,

04:02 - 08.981 I would rest on the analysis, and ask this court

04:02 - 14.086 to adopt the analysis, of the courts in this is more make an angel.

04:02 - 17.523 I think those are cases that are dealing with this type

04:02 - 20.859 of issue where the Commonwealth, the state, whatever you want to call it,

04:02 - 24.963 uses in some way

04:02 - 28.433 a defendant's consultation with counsel

04:02 - 31.403 and uses that against them.

04:02 - 34.606 Those courts have found that this is violative of the 14th amendment.

04:02 - 38.143 Okay. We understand your argument.

04:02 - 41.079 Are there any questions?

04:02 - 42.014 Thank you very much.

04:02 - 45.017 Let's see here. Thank you. Commonwealth.

04:02 - 48.253 Bank.

04:02 - 49.621 Good afternoon, Your Honors.

04:02 - 52.090 May it please the court?

04:02 - 55.460 Ryan lace it on behalf of the Dauphin County District Attorney's office.

04:02 - 56.628 Race the mic, please.

04:02 - 58.363 Oh, sorry. You're very tall.

04:02 - 59.998 So here we go.

04:02 - 02.334 Or my heels to

04:03 - 02.968 thank you, Your Honor.

04:03 - 04.036 Sorry about that, Your Honor.

04:03 - 08.707 Ryan lace it here on behalf of the Dauphin County District Attorney's Office.

04:03 - 10.576 The appellate in this matter.

04:03 - 14.179 Just, piggybacking off

04:03 - 17.249 of what we were talking to at the conclusion of,

04:03 - 21.687 the appellants argument, I don't think there was any improper

04:03 - 24.823 comment here whatsoever by the prosecutor.

04:03 - 28.193 There was no Fifth Amendment right to counsel.

04:03 - 31.096 There was no custodial interrogation occurring.

04:03 - 32.464 This was over the phone.

04:03 - 35.434 He voluntarily, acquiesced in this phone call.

04:03 - 38.637 There was no Sixth Amendment right to counsel.

04:03 - 42.774 There were no formal charges against the defendant in this, matter.

04:03 - 48.180 This was actually a cumulative comment because the defendant had to say, wait,

04:03 - 49.047 I'm sorry, Your Honor.

04:03 - 52.351 Cumulative, cumulative, cumulative comment.

04:03 - 59.391 Because the defendant had also, lied to the victim's husband and the, recorded

04:03 - 04.596 phone call, going into the second prong of Pennsylvania's harmless error analysis.

04:04 - 07.466 I argued that it could also,

04:04 - 10.435 assuming there was error, which the Commonwealth does not see,

04:04 - 14.906 does not seed, that it would be de minimis under the circumstance

04:04 - 18.210 that there was no constitutional violation here.

04:04 - 19.011 I'm sorry.

04:04 - 22.280 What do you what do you contend was a cumulative, cumulative statement

04:04 - 27.152 that, sorry that the defendant, after he obtained counsel and,

04:04 - 33.258 subjected himself to a second interview, in so many words with law enforcement,

04:04 - 34.526 given that the first phone call

04:04 - 37.829 between this particular fact pattern deals with the fact that the prosecutor,

04:04 - 40.999 during his closing argument, made reference to the fact that the defendant

04:04 - 45.003 retained counsel before he gave the statement to the police. Yes.

04:04 - 48.006 And the what was the purpose of throwing in there?

04:04 - 49.508 Hey, he retained an attorney.

04:04 - 51.743 Unless

04:04 - 55.480 unless to fix in the minds of the juror some type of consciousness of guilt.

04:04 - 57.616 That's what I don't understand here. Yes, sir.

04:04 - 01.086 I thought that was a conceded point, because why else would you ever reference

04:05 - 04.890 the fact that he retained an attorney before he gave a statement to the police?

04:05 - 09.494 And I disagree with the characterization that has been, that occurred

04:05 - 12.464 in appellant's argument here, with your honors,

04:05 - 17.302 that there was an inference that because the or the soliloquy,

04:05 - 20.939 because the defendant obtained an attorney that he must be lying.

04:05 - 25.477 I did not find that, from a review of the closing argument in this matter,

04:05 - 28.914 what do you believe the prosecutor said to the jurors?

04:05 - 32.751 The defendant retained an attorney before he gave the statement.

04:05 - 34.786 Because why would you do that?

04:05 - 38.490 Because after one retains an attorney, one would presume

04:05 - 42.594 that the attorney is competent and would render competent advice.

04:05 - 45.831 And also one would assume and we're making lots of assumptions here,

04:05 - 49.935 that, the defendant would disclose to his attorney,

04:05 - 53.972 kind of what the status of the matter is up to that point.

04:05 - 56.274 Oh, I did this. I didn't do that.

04:05 - 00.946 And so the defendant, after being informed that there was a rape kit conducted

04:06 - 06.952 in this matter, which, the defendant's, DNA was found in the rape kit.

04:06 - 10.856 Therefore, unless he was going to claim that he was so blacked out

04:06 - 14.159 that he didn't know what happened, he would have been aware that he,

04:06 - 17.429 at least at some point engaged in sexual relations with this woman.

04:06 - 21.266 And his denial, when presented with these allegations,

04:06 - 23.435 is that nothing ever happened.

04:06 - 24.703 Yeah, but that still doesn't

04:06 - 28.039 that still doesn't solve the problem if it's a problem. And

04:06 - 32.844 could be that that the, assistant D.A.

04:06 - 37.215 gratuitously brought up his retaining counsel.

04:06 - 38.483 Yeah, that's where I'm lost.

04:06 - 43.321 Gratuitous, and troubling, particularly when it's juxtaposed

04:06 - 47.726 with the repeated labeling of the defendant as a lawyer.

04:06 - 51.096 Yes, Your Honor, the latter being permissible in closing.

04:06 - 55.066 But the former coupled with it being problematic, don't you think?

04:06 - 58.436 Again, there being no deprivation of a constitutional rights

04:06 - 00.205 such as under the Fifth or Sixth Amendment.

04:07 - 01.139 Vis-a-vis counsel

04:07 - 05.110 now, appellant has brought in that to freedom of association and stuff.

04:07 - 08.680 And I don't think that is as entirely implicated in a jury trial

04:07 - 11.683 as is the right to counsel.

04:07 - 13.618 Again,

04:07 - 17.189 not calling him a liar because he obtained an attorney, but

04:07 - 21.459 because when ostensibly given reasonable advice by counsel,

04:07 - 23.662 one of the circumstances, and presented with evidence

04:07 - 26.865 that a rape kit was conducted, though the results had not yet come back,

04:07 - 31.169 he continues to not heed this ostensibly reasonable advice from his.

04:07 - 33.438 That's all. Well, that's not what the prosecutor said.

04:07 - 36.575 No, I mean, that's that's not what the prosecutor said in this case.

04:07 - 40.278 And there you might be a little bit more on I mean, we're kind of

04:07 - 42.214 we're kind of like nickel

04:07 - 45.517 and diming about what the jury could infer or not infer about this.

04:07 - 49.487 I just have a general problem with I don't think I'm not sure why.

04:07 - 51.389 And if it's a common practice in your office, I'm

04:07 - 53.725 a little concerned about it, that you would have

04:07 - 58.563 no constitutional right attaching, but that you would use someone's decision

04:07 - 02.434 to consult with a lawyer when potentially faced with criminal charges

04:08 - 05.871 against them in order to get your conviction.

04:08 - 07.606 That's that's just

04:08 - 11.576 it may not be a constitutional violation, but it just doesn't sound right.

04:08 - 16.548 And and and maybe it's and maybe that's why the lawyer at trial didn't raise

04:08 - 20.785 the constitutional violation and simply said, this is prosecutorial misconduct.

04:08 - 26.424 We can't we can't allow prosecutors to use the fact that we consulted with

04:08 - 31.329 an attorney about a potential criminal charge against us, not constitutional.

04:08 - 33.198 It's just wrong. What's wrong with that?

04:08 - 36.167 Why would it be wrong if there's no constitutional violation?

04:08 - 37.435 Because. Because

04:08 - 39.304 if if I'm.

04:08 - 40.672 If I'm innocent.

04:08 - 41.940 If I'm innocent of the charges.

04:08 - 42.407 You're saying

04:08 - 44.442 an innocent person wouldn't consult with a lawyer

04:08 - 46.645 when they're under potential investigation?

04:08 - 47.445 I didn't say that.

04:08 - 49.547 It seemed to me that. I'm sorry. Go ahead.

04:08 - 53.885 Just to say, counsel, you did in your brief on page 39 of what you wrote.

04:08 - 58.256 If appellate had an issue with the fact that he, of his own volition,

04:08 - 01.559 brought an attorney to his discussion with police,

04:09 - 05.964 he could have not brought an attorney to his discussion with police.

04:09 - 08.934 Are you kidding me, people?

04:09 - 11.670 The purpose and the purpose of the conversation

04:09 - 14.773 with the police was because the police had all this information

04:09 - 17.943 and wanted to arrest him for rape. Yes.

04:09 - 20.145 And it's your position

04:09 - 23.114 as the arbiter of truth.

04:09 - 26.017 The Commonwealth believes someone who's being

04:09 - 29.020 called to have a conversation with law enforcement

04:09 - 33.959 whose intent and purpose is to incarcerate and war, seek a deprivation of liberty,

04:09 - 36.995 should not enjoy the right to have

04:09 - 40.465 someone who knows the law present with him.

04:09 - 43.635 It would certainly behoove that individual to have someone who knows the law

04:09 - 48.306 and in this particular case, since it behooves him, why was that used against him?

04:09 - 52.377 I again, I were there.

04:09 - 54.946 I've not heard any authority yet.

04:09 - 59.050 The can't be used against him if it's not a violation of the Constitution.

04:09 - 01.453 How would it affect his fair trial rights?

04:10 - 03.989 Okay, can we separate what you said in the brief,

04:10 - 06.191 which I would recommend you move to strike.

04:10 - 11.930 And, what was actually said at the trial, the Da at the trial.

04:10 - 13.431 Was this you at the trial?

04:10 - 14.799 Oh, no, I don't do trials, your honor,

04:10 - 17.802 I it's hard for me to talk in front of people. So

04:10 - 18.970 it was.

04:10 - 21.940 I'm sure we're we're definitely not people.

04:10 - 23.942 Yeah. You're doing great so far, guys.

04:10 - 26.845 Especially quite esteemed people just keep coming here.

04:10 - 33.084 The okay, in the trial, the Ada said and I'm quoting.

04:10 - 38.390 And what does appellant do because he knows the importance of all this.

04:10 - 39.691 He gets a lawyer.

04:10 - 41.059 He gets an attorney.

04:10 - 42.961 This isn't some schlep

04:10 - 46.031 who just went in and spoke with the police without the benefit

04:10 - 48.199 of having someone there to protect your rights.

04:10 - 50.769 Now he goes in with an attorney, and

04:10 - 54.906 when I read that, my impression was

04:10 - 58.309 the Ada was saying, this guy's sophisticated.

04:10 - 02.747 He knows what he's doing, not that that led to him lying.

04:11 - 05.817 I mean, that's just the way I read it, but I.

04:11 - 06.618 Oh, I'm sorry, Your Honor.

04:11 - 08.520 You should agree with me.

04:11 - 09.754 I always agree with Your Honor.

04:11 - 10.555 Why is it that.

04:11 - 14.392 Why is it that susceptible to a very different reading?

04:11 - 17.195 Why is it that a big red flag waving.

04:11 - 20.432 I mean, I guess, unlike Justice Chief Justice

04:11 - 24.369 today, if I was presiding at that trial, I might have stopped.

04:11 - 28.773 Stopped it right there and brought counsel to sidebar and then

04:11 - 32.544 and then I'm not sure what I would have done maybe declared a mistrial, but

04:11 - 38.083 that's exactly that is an outrageous and gratuitous thing for a prosecutor to say.

04:11 - 43.421 In a closing, I'm kind of shocked that you don't immediately concede that

04:11 - 46.991 and try to show us why it would be a harmless error instead of defending it.

04:11 - 52.764 Well, Your Honor, you know, I could I can accept that it would be error.

04:11 - 55.633 I just don't want to concede, gratuitously concede the issue.

04:11 - 00.972 I, you know, again, if we're not referencing

04:12 - 04.442 a Fifth Amendment or a Sixth Amendment right to counsel, I mean, what?

04:12 - 06.277 Well, the

04:12 - 10.515 impression that I was getting from the tenor of,

04:12 - 14.319 your opposing counsel's argument was that it was connected.

04:12 - 18.289 The statement of his having gotten an attorney was connected

04:12 - 22.560 to his lying that that somehow brought about his lie.

04:12 - 25.597 And I just was

04:12 - 27.699 proffering to you that I don't see

04:12 - 30.702 that in those series, that series of statements.

04:12 - 33.972 Now, that doesn't mean I don't think that was an error.

04:12 - 39.177 But I'm just saying it, it it doesn't seem to me to be what it was alleged to be.

04:12 - 42.614 And to my thought from earlier on,

04:12 - 46.518 as what I was saying is, despite the fact that he obtained this counsel

04:12 - 49.654 and presumably received reasonable counsel under the circumstances,

04:12 - 51.089 he still chose to lie.

04:12 - 53.992 It's not his attorney saying, oh, the lie is.

04:12 - 57.795 It's this defendant after having well, he wasn't a defendant at that point,

04:12 - 01.766 consulting with an attorney, ostensibly having been given reasonable advice

04:13 - 03.201 under the circumstances like, oh,

04:13 - 05.370 one would think that this

04:13 - 08.640 defendant, knowing that this was the victim, would inform his counsel.

04:13 - 11.643 Oh, we've had intimate relations in the past.

04:13 - 15.146 That would inform and maybe something would come of the,

04:13 - 17.949 Sorolla or the, DNA test that was given to him.

04:13 - 21.953 And so the defendant knows this DNA test is coming down, has consulted

04:13 - 25.123 with his attorney, has either withheld a information from his attorney,

04:13 - 28.159 or has received counsel from his attorney

04:13 - 30.895 that, oh, your DNA is going to be found there.

04:13 - 32.764 Maybe you should say we had consensual sex.

04:13 - 33.932 And he still denies it.

04:13 - 37.936 Okay, let's let's just pretend here that, Or assume

04:13 - 41.506 that we're all convinced it was an error of some sort.

04:13 - 43.641 What then happens?

04:13 - 48.646 Do you can you make a good argument to us that it's not a structural error?

04:13 - 53.785 Yes, Your Honor, because it is not one of those errors, such as the whole denial

04:13 - 57.355 of a right to counsel, other, proceeding before a biased tribunal

04:13 - 01.359 that, affects trial process from beginning to end.

04:14 - 04.696 I mean, the best argument here for them would probably be the concept

04:14 - 07.832 of primacy, that the last thing the jury hears is this comment.

04:14 - 12.036 And so maybe it could, have affected them or bit stronger

04:14 - 13.371 in their mind for that point.

04:14 - 17.375 But again, this is, a fleeting comment at the end of the trial.

04:14 - 20.945 It goes to the question of whether the error was harmless or not.

04:14 - 24.949 That's a different question than whether the error is subject

04:14 - 28.653 to a harmless error analysis or whether it's structural error.

04:14 - 32.056 Well, it can't be because it's just a prosecutorial comment,

04:14 - 34.225 which is not evidence and closing at the end of trial.

04:14 - 35.226 It can't,

04:14 - 39.530 by definition, have affected the entire framework within which the trial proceeds,

04:14 - 44.235 rather than an error in the trial process itself, which can be reviewed by taking

04:14 - 47.338 the whole record here, the evidence, the arguments, and comparing.

04:14 - 49.274 What if, if any, effect it had.

04:14 - 51.442 And so that's why I do not believe it's a structural error.

04:14 - 54.646 Plus, with the federal and this honorable court

04:14 - 57.115 or the state of Pennsylvania's, jurisprudence,

04:14 - 00.685 it would align that it is subject to harmless error analysis.

04:15 - 04.989 I don't think it could be more egregious than commenting on a defendant's

04:15 - 06.224 right to remain silent.

04:15 - 08.059 I think it should be treated akin to that.

04:15 - 09.327 If there is error discerned.

04:15 - 13.698 Any other questions for the Commonwealth?

04:15 - 15.933 All right. Thank you both very much.

04:15 - 18.936 Up next is in Ray Chester Water Authority Trust.

04:15 - 23.074 This is an appeal by the Chester Water Authority of a Commonwealth Court decision

04:15 - 25.743 that allowed the City of Chester to obtain the assets

04:15 - 29.314 of a multi-jurisdictional water authority and sell those assets.

04:15 - 32.617 The decision of the trial court denied cross motions for judgment

04:15 - 33.518 on the pleadings,

04:15 - 36.821 and interlocutory appeal was taken by permission to the Commonwealth Court.

04:15 - 41.559 According to the authority, the parties dispute began with Aquas May

04:15 - 46.164 2017 unsolicited purchase offer seeking to acquire the assets of the authority.

04:15 - 49.767 The authority's board, including the three representatives from the city,

04:15 - 52.904 considered aquas offer and rejected it unanimously.

04:15 - 56.641 The authority subsequently petitioned and transfer its assets to a trust

04:15 - 59.977 to which the City of Chester filed preliminary objections.

04:15 - 02.814 The city then subsequently filed a executory judgment action,

04:16 - 07.085 seeking a declaration that it had the unilateral power to unearth,

04:16 - 10.421 to seize, terminate, and sell the authority's assets.

04:16 - 12.156 The authority argued that.

04:16 - 16.661 Supreme Court precedent in 2012, changes to the Municipal Authorities Act or May

04:16 - 18.029 prohibited the city

04:16 - 21.032 from acquiring the authority's assets without the authority's permission.

04:16 - 24.135 The authority made the case that the General Assembly's clear

04:16 - 27.138 intent in passing the 2012 changes to the Mar

04:16 - 31.142 was that Chester County, Delaware County and the city succeed in the role

04:16 - 34.145 previously paid by the city alone with respect to the authority.

04:16 - 37.882 The authority argued that doing so would allow a minority representative

04:16 - 38.516 on the authority's

04:16 - 42.019 board, the city, to obtain a windfall without the authority's approval.

04:16 - 45.757 The County of Chester Cross appealed to the Order of Commonwealth Court.

04:16 - 47.425 In their appeal, the county argued.

04:16 - 48.059 The Commonwealth Court

04:16 - 52.964 majority committed a reversible error by misinterpreting the 2012 Ma amendments

04:16 - 56.667 and holding that the significance of those revisions is limited to providing

04:16 - 00.638 token representation to the super majority of the authority's ratepayers.

04:17 - 03.941 Rather, the Ma provided for equal representation,

04:17 - 06.944 creating a statutorily mandated joint authority.

04:17 - 11.382 The City of Chester framed the issue narrowly as to whether the 2012

04:17 - 15.820 Ma amendments abrogate, supersede, or otherwise alter and municipalities

04:17 - 19.824 long standing power under the Ma and its statutory predecessors

04:17 - 23.227 to unilaterally obtain an authority and order its assets.

04:17 - 26.764 The city argues that the appeal did not address the manner or extent

04:17 - 29.867 to which the municipality could utilize or exercise such authority.

04:17 - 34.138 The city argues the Commonwealth Court's explanation of the RMA, and particularly

04:17 - 35.239 its reenactment,

04:17 - 39.177 squarely support the city's unilateral right to repossess the authority's assets.

04:17 - 42.280 The city also argued that the authority's claim that the city

04:17 - 45.783 did not have the ability to satisfy preexisting statutory provisions

04:17 - 50.087 of the mandatory pre-conditions under the Ma, was irrelevant.

04:17 - 51.722 Let's watch and listen

04:17 - 54.725 to the arguments in the matter of Chester Water Authority Trust.

04:17 - 57.295 Thank you, Madam Chief Justice.

04:17 - 58.596 May it please the court.

04:17 - 01.098 I am Kevin Kent from Clark Hill.

04:18 - 04.502 I represent the Chester Water Authority, a multi-jurisdictional joint

04:18 - 09.907 municipal authority operated by a majority minority board that provides clean,

04:18 - 14.712 affordable drinking water to over 200,000 people and businesses.

04:18 - 17.615 Refer the court to page seven

04:18 - 21.519 of our brief, where you can see the service area for the authority.

04:18 - 24.789 As far as the the split of the arguments between,

04:18 - 28.860 myself and Chester County Council,

04:18 - 33.164 for the CWA, I plan to address the Burke precedent of this court

04:18 - 38.236 as well as, the impact of act 73 on the NEA.

04:18 - 42.206 Chester County will focus on how allowing the Commonwealth Court's

04:18 - 45.209 order to stand would lead to absurd results.

04:18 - 48.646 So the court is familiar with the background of this larger

04:18 - 52.884 dispute from its 2021 decision and Queens case against the DCD.

04:18 - 56.988 Summarizing the Queen's argument in this case,

04:18 - 01.959 the city can only succeed, and Aqua can only succeed

04:19 - 06.497 if this court concludes that at least all three of the following,

04:19 - 10.034 propositions are correct.

04:19 - 10.501 First,

04:19 - 15.373 even if section 5622 A of the Ma applies,

04:19 - 19.777 this court decides that it did not mean what it said in the Burke case.

04:19 - 23.047 Second,

04:19 - 26.784 the act 73 means nothing other than giving the counties

04:19 - 30.755 ceremonial seats on an act 73 authority's board,

04:19 - 35.159 even though acts 73 reorganized the CWA

04:19 - 38.429 by replacing the five member board

04:19 - 42.300 appointed by the city with a new nine member board

04:19 - 46.837 appointed equally by each member municipality and third,

04:19 - 51.175 that the project of any authority can be seized

04:19 - 54.912 solely by the original incorporate or end quote.

04:19 - 58.182 And that third point is primarily what Chester County will focus on.

04:19 - 02.987 Chester County Council Simply put, the city's claim of unilateral power

04:20 - 05.990 to order the Queens dissolution and seize

04:20 - 08.993 the Queens project is untenable.

04:20 - 12.563 The city uses language like repossess and take back.

04:20 - 16.367 In its arguments, the city never possessed the CWA.

04:20 - 18.502 It never contributed to it.

04:20 - 21.505 This case is not about ownership or possession,

04:20 - 24.075 which is really not addressed by the mayor.

04:20 - 27.478 It's about the division of government power by the General

04:20 - 30.481 Assembly of the Commonwealth, not ownership.

04:20 - 33.751 The only word relevant to these appeals,

04:20 - 36.754 starting with R, e is replaced.

04:20 - 38.489 And why do I say that?

04:20 - 41.926 That's because that's the language used in the statute whereby the city's

04:20 - 45.830 appointed five member board was replaced by a new nine member

04:20 - 50.668 board appointed three each by Chester County, Delaware County and the city.

04:20 - 55.139 And I just stress not a seat each given to the county's

04:20 - 59.043 equal representation on a nine member board.

04:20 - 03.481 Now up to to get into the details of my arguments, I'm going to start with Burke.

04:21 - 07.752 Now this is issue number two in the court's order taking jurisdiction.

04:21 - 11.956 And because it's it's dispositive, I'm taking it first.

04:21 - 16.293 So as you can see from from our briefs, the argument is that 5622

04:21 - 21.198 A does not apply definitionally to a multi-member municipal authority.

04:21 - 24.669 So you might say, well, why are you starting with Burke?

04:21 - 27.505 I'm starting because if you if you take the Burke holding

04:21 - 30.808 and you apply it to any situation

04:21 - 33.811 in which a municipal party is trying to,

04:21 - 37.515 take the system of a municipal authority,

04:21 - 40.818 it decides the issue, regardless of act 73.

04:21 - 44.055 So in the Burke case, this court

04:21 - 47.191 held that an authority's board must approve a transfer of projects.

04:21 - 49.093 That's an express holding.

04:21 - 50.828 It's never been overturned.

04:21 - 53.764 This court affirmed no less than three separate times,

04:21 - 56.934 that such a transfer must be accomplished

04:21 - 01.338 by an appropriate resolution and or ordinance adopted by the authority.

04:22 - 06.477 And Burke is right, and I submit this for this reason.

04:22 - 10.581 If if you look at the language of 5622 A

04:22 - 13.584 and its predecessor, section 18,

04:22 - 16.220 that language quote adopted by the proper

04:22 - 21.692 authorities, end quote in 5622 would be completely unnecessary surplus,

04:22 - 25.763 which if you read 5622 way to

04:22 - 28.566 to to apply to

04:22 - 33.704 only the municipality, passing an ordinance to transfer the system,

04:22 - 36.707 it could end with the mister creation breakdown that real quick.

04:22 - 41.178 Yes. Your position if I if I'm reading you correctly, is that proper authorities

04:22 - 45.583 in this particular context should be read to include all nine members.

04:22 - 50.955 And in the event that this court decides that the assets can be transferred

04:22 - 54.992 or sold, it would require a majority of the nine member board

04:22 - 59.396 and therefore resolutions of Delaware County and Chester County correct

04:22 - 02.967 that it would, at least under Burke, include the Kwa board

04:23 - 05.703 so that that that in other words, that's the proper authorities.

04:23 - 10.141 All nine member board plus Delaware County, the city of Chester and Chester

04:23 - 10.608 County.

04:23 - 13.277 Yes, the majority of the CWA is because I want to be clear on that.

04:23 - 14.211 Thank you. Yes.

04:23 - 15.346 At least I mean,

04:23 - 19.216 we haven't reached the issue of of whether Chester County, Delaware

04:23 - 23.821 County and, and the city of Chester would have to, to to to also agree.

04:23 - 27.591 I mean, I think that's implicit in the statute that they would have to,

04:23 - 33.063 council implicit in what I just focus on.

04:23 - 39.303 5622 a why do you have to go beyond 5622 A for your argument?

04:23 - 42.373 I mean, if it requires a resolution

04:23 - 45.509 by the authority, why, why do you need anything else?

04:23 - 49.613 I don't that's why I'm starting with Burke.

04:23 - 55.319 I mean, isn't isn't the, composition of the authority, etc.

04:23 - 58.322 irrelevant?

04:23 - 59.657 Under Burke control.

04:23 - 03.761 So this controls what you need in order to convey

04:24 - 06.764 the, asset?

04:24 - 09.200 Absolutely. Your honor, I agree completely.

04:24 - 10.734 Justice Donohue.

04:24 - 12.002 Burke controls.

04:24 - 13.971 That's actually why I started with this argument.

04:24 - 16.774 Because regardless, it's not. It's not Burke.

04:24 - 19.176 I mean, it's the language of the statute, correct?

04:24 - 21.579 I agree with you on that as well. That's what we're here for.

04:24 - 24.582 I mean, the argument been made that Burke is dicta.

04:24 - 29.820 So we would really, in the first instance, be interpreting what the statute means,

04:24 - 32.890 but assume we agree with the Burke Court's analysis.

04:24 - 36.227 That would be the beginning, and the end of the analysis would.

04:24 - 40.097 Yes, absolutely, Your Honor, and that that's our argument.

04:24 - 41.298 That's why I'm starting with Burke.

04:24 - 43.901 I think Burke is very straightforward on that.

04:24 - 45.703 I think it's a holding.

04:24 - 47.071 And I think it's correct.

04:24 - 50.074 And even if it wasn't for, for some reason,

04:24 - 54.144 as this court has stated before, changing course would demand some special

04:24 - 57.781 justification over and above the belief that the precedent was wrongly decided.

04:24 - 59.650 That's clearly not the case here.

04:25 - 02.686 Happy to take any more questions on Burke.

04:25 - 05.322 Otherwise I will move on to to some of the acts.

04:25 - 07.591 73 arguments.

04:25 - 11.228 Okay, now, even if this this court

04:25 - 14.231 for any reason decides that Burke does not control here,

04:25 - 18.602 acts 73 precludes the Commonwealth court's

04:25 - 21.605 interpretation and aquas in the city's interpretations.

04:25 - 25.276 Even the most generous reading of section 5622

04:25 - 27.611 gives the municipality a limited ability, under

04:25 - 31.048 certain conditions, to acquire a project operated by an authority

04:25 - 35.119 that the municipality created and controls through board appointments.

04:25 - 39.390 And we think, obviously subject to Burke's requirement that the authority approve

04:25 - 41.058 the transfer is not Burke's requirement,

04:25 - 43.460 and you keep saying that it's the language of the statute.

04:25 - 46.130 There's the language of the statute as interpreted by Burke.

04:25 - 49.667 Yes, Your Honor, so I'm putting Burke aside that interpretation for a moment.

04:25 - 53.671 5610 A1, which was added by acts

04:25 - 59.243 73 as well as 5610 G reorganized municipal authorities

04:25 - 03.280 providing multi-county water service where a majority of the population served

04:26 - 07.318 4/5 or greater is outside of the incorporating municipality.

04:26 - 11.021 Under act 73, the board

04:26 - 16.060 that was once appointed by the city alone is, quote, replaced by a governing body,

04:26 - 19.463 end quote, that includes Chester County, Delaware

04:26 - 22.599 County, and the city, all with equal appointment power.

04:26 - 27.338 Accordingly, the authority's board is no longer quote

04:26 - 31.241 a board appointed by a municipality, end quote under

04:26 - 34.244 section 5622 A, it's a board

04:26 - 38.515 appointed by three municipalities, and that's inherently it.

04:26 - 39.950 There's inherent logic there.

04:26 - 43.387 It makes sense for a multi jurisdictional authority operating

04:26 - 47.725 throughout many cities and counties and boroughs, as opposed to an authority

04:26 - 50.728 whose board appointments are controlled by one municipality,

04:26 - 54.198 to fall outside that that definition.

04:26 - 56.700 So there was no need.

04:26 - 57.167 You know, there's

04:26 - 02.072 there are a lot of arguments in the briefs from Ottawa and the city that somehow,

04:27 - 07.578 there was a need to change section 5622 A itself

04:27 - 11.782 for section 5610 A1 to effect it.

04:27 - 17.321 That those arguments that the General Assembly

04:27 - 21.492 should have been expected to alter section 5622 a make no sense

04:27 - 25.396 when you read section 5610 A1

04:27 - 28.732 and 5622 A together.

04:27 - 31.068 Now Aqua and the city

04:27 - 35.773 actually attempt to rewrite section 5622 A with terms that aren't there,

04:27 - 39.810 like quote, originally incorporating municipality

04:27 - 43.547 quote or incorporating municipality.

04:27 - 49.219 Now those terms come from 5610

04:27 - 53.157 that those terms are never used in section

04:27 - 56.693 5622 A they are completely absent.

04:27 - 00.397 So even by aquas and the city's only logic,

04:28 - 04.902 the use of the phrase quote project established by a board appointed

04:28 - 09.440 by a municipality, end quote in section 5622,

04:28 - 12.576 means something different,

04:28 - 14.445 incorporating the municipality.

04:28 - 17.448 End quote in section 5610 A1.

04:28 - 20.984 That's a conscious decision by the General Assembly

04:28 - 24.788 to define projects subject to section 5622,

04:28 - 30.160 with reference to the nature of the board established those projects, i.e.

04:28 - 31.795 it did not extend it.

04:28 - 35.599 5622 way to multiple member municipal authorities.

04:28 - 40.037 Now the city points to the word established being in the past

04:28 - 44.741 tense and 5622 way is having some sort of magical meaning for

04:28 - 47.945 for our purposes here, that's clearly simply

04:28 - 51.648 because a project has to be established before it can be transferred,

04:28 - 53.650 and the

04:28 - 57.688 city and Ottawa frankly ignore the present tense.

04:28 - 00.691 In the same section of section 5622

04:29 - 04.261 that uses quote is end

04:29 - 07.397 quote and has end quote in the present

04:29 - 10.400 tense in reference to the project

04:29 - 15.439 5622 in that regard says, quote, the project is of a character

04:29 - 20.010 which the municipality has power to establish, maintain or operate.

04:29 - 21.311 End quote.

04:29 - 22.579 That's clearly a reference

04:29 - 26.917 to the authorities present projects, not historical projects.

04:29 - 29.920 100 years ago, when the authority was incorporated.

04:29 - 33.190 So that's,

04:29 - 37.594 we think, the text of 5622 a clearly takes

04:29 - 41.231 even a 5622 a somehow,

04:29 - 44.368 excuse me,

04:29 - 47.037 the text of 5622 way just does not apply

04:29 - 52.476 to a multi-member municipal authority like the CWA or any other act

04:29 - 56.747 73 or other joint authority multi-member authority.

04:29 - 58.382 Now say that again.

04:29 - 00.851 You're saying it does not apply.

04:30 - 02.886 I am saying 5622.

04:30 - 08.358 A definitionally does not apply to a multi-member municipal authority.

04:30 - 11.862 So what does

04:30 - 13.697 without apply

04:30 - 16.567 is it certainly not 56 can which that is

04:30 - 19.570 says nothing about what the powers are.

04:30 - 22.039 It just says,

04:30 - 25.042 how powers shall be exercised

04:30 - 28.478 and then states the composition of the board.

04:30 - 33.050 Yes. And, and it does state the composition of, of of the board.

04:30 - 35.852 Certainly.

04:30 - 39.022 5622 a we would submit does not apply to

04:30 - 42.192 any authority that has more than one member.

04:30 - 47.364 And it's to and I'm trying not to tread on Chester County's arguments,

04:30 - 50.367 but to answer Your Honor's question, I think I have to on this point.

04:30 - 55.572 It's never been suggested and we've never been able to find a case

04:30 - 59.509 that says 5622 A applies, for example, to a joint authority.

04:31 - 03.347 So an authority with multiple members if,

04:31 - 06.850 if the Commonwealth Court's decision is allowed to stand

04:31 - 14.157 5622 A would apply to all authorities Act 73 a joint authority under section

04:31 - 18.562 5604 that have more than one member,

04:31 - 21.465 or at least certainly those who have later joining

04:31 - 24.134 members.

04:31 - 26.637 And that just that cannot be right.

04:31 - 26.970 Okay.

04:31 - 30.874 Just one more time then a 5622 A does apply.

04:31 - 31.742 What does?

04:31 - 35.479 Well, 5619 of in terms of how,

04:31 - 39.116 and when a transfer can be Effectuated

04:31 - 43.620 5619 applies and that that is purely discretionary.

04:31 - 48.091 On the from the authority perspective, if the authority decides

04:31 - 53.463 to transfer the project against the will of of a municipality,

04:31 - 57.801 and you can see that in the way that 5619 operates because it requires

04:31 - 03.307 unlike 5622, it requires a pay off of of that's

04:32 - 06.576 basically an entire wind up 5619 is called

04:32 - 09.613 termination of the authority.

04:32 - 12.316 And I want to make sure I answer

04:32 - 18.588 justice Donahue 5622 a, requires the assumption by the municipality

04:32 - 20.123 of all the obligations incurred

04:32 - 23.126 by the authorities with respect to that project, correct.

04:32 - 25.228 It is not a wind up provision

04:32 - 27.397 like 5619

04:32 - 30.467 is and, you know, 56 that's that's why, in our view,

04:32 - 34.938 why would you need a wind deprivation if they assume all the liabilities

04:32 - 37.908 and they could wind it up by transferring it or

04:32 - 41.712 whatever else they're going to do with it, that would be how the wind up took place

04:32 - 46.016 after they acquire it, based upon an assumption of,

04:32 - 49.252 all of the obligations incurred, it's theirs.

04:32 - 52.656 And then wasn't it wound up?

04:32 - 56.026 Yes. They could wind that up if if it's acquired

04:32 - 59.596 per section 5622, they could certainly wind it up later

04:33 - 04.835 after assuming debts that that I think your, Your Honor, raises

04:33 - 09.272 the question of, well, who who can exercise it a 5622 a power.

04:33 - 14.845 And in our from our standpoint, that has to be a single member

04:33 - 18.515 municipal authority where it controls the board appointments.

04:33 - 20.417 Not a

04:33 - 24.521 an act 73 authority or any other multi-member authority.

04:33 - 28.325 Where there are board seats

04:33 - 31.328 for all of the participating municipalities.

04:33 - 35.265 So contrary to what you told me in the beginning, 5622

04:33 - 39.002 eight does not control this, and Burke does not control it.

04:33 - 45.575 Burke controls only if you decide 5622 A applies to an authority

04:33 - 49.279 like the CWA or any other multi-member municipal authority.

04:33 - 50.914 But you don't think it does?

04:33 - 52.549 We don't think it does.

04:33 - 53.750 But it's so dispositive.

04:33 - 56.753 That's why we addressed it first.

04:33 - 02.526 And it's authorized.

04:34 - 05.962 So we asked.

04:34 - 07.564 The authority's board.

04:34 - 11.935 So the board in its board was certainly the authority's board.

04:34 - 13.670 And they would have to have the

04:34 - 17.140 obviously the consent of Chester County, Delaware County and the city.

04:34 - 18.241 That goes to my original point.

04:34 - 23.447 If the city of Chester and Chester County and Delaware County decide together

04:34 - 27.684 that they want to sell off the assets, Delaware County and Chester County

04:34 - 31.488 could prepare a resolution to sell off the assets in conjunction

04:34 - 33.323 or to acquire the assets

04:34 - 35.959 in conjunction with the city of Chester, and then conveyed through

04:34 - 38.228 a third party sale to acquire. Is that correct?

04:34 - 42.232 No. They would still need the CWA board's,

04:34 - 45.402 authorization under Burke.

04:34 - 48.238 I'm sorry.

04:34 - 51.241 They would still need the authorization of the board.

04:34 - 57.647 Okay.

04:34 - 02.085 So just moving on to,

04:35 - 04.488 the next point, it

04:35 - 07.491 and this is a good segue to Your Honor, because if

04:35 - 13.697 if 5622 A does apply to an act 73 authority,

04:35 - 18.235 the only logical way that it can be read

04:35 - 21.705 to apply to such an authority or,

04:35 - 27.043 or any other joint authority is that the three appointing entities

04:35 - 30.046 would have to have the the power to approve a transfer.

04:35 - 33.884 Meaning if, if, if,

04:35 - 36.887 if this court were to say,

04:35 - 39.356 doesn't matter what the board says,

04:35 - 42.158 it's only

04:35 - 43.727 either the city of Chester

04:35 - 46.730 or the three appointing entities that would have that power.

04:35 - 49.466 It's some combination of of them.

04:35 - 52.702 Then the most rational reading that could possibly

04:35 - 55.805 be the only rational reading that could possibly apply in that

04:35 - 59.776 circumstance is that it's all three of those entities.

04:35 - 00.777 That that was my point.

04:36 - 04.848 Yes, that and I apologize, but your contention is that regardless

04:36 - 08.718 of what the three entities, the appointing entities want, if the board says no,

04:36 - 11.721 that the assets cannot be sold, that's not my understanding.

04:36 - 16.927 Or reading of 5622 way in conjunction with 5610 a one under Burke.

04:36 - 19.896 Because if Burke stands for the proposition of anything, it's

04:36 - 20.530 just astounding.

04:36 - 23.900 You just mentioned 5622 way stands for the proposition.

04:36 - 29.139 Is that a single joint authority, the municipality, can acquire the assets

04:36 - 32.142 of that particular authority, regardless of what the board wants.

04:36 - 36.479 In this particular case, under act 73, it expanded the board to nine members

04:36 - 38.848 from five members of A, as you've already conceded,

04:36 - 42.285 with three from Chester County, three from Delaware County and three from Chester.

04:36 - 46.389 If I'm reading this logically and I'm thinking about it logically,

04:36 - 49.593 if that's the asset of of the participating entities

04:36 - 53.730 or that's the idea of the participating entities, Chester County, Delaware County

04:36 - 54.531 and the city of Chester

04:36 - 58.134 can get together and say, we want to sell off that particular asset,

04:36 - 02.606 and we're going to enter into a resolution to acquire the asset

04:37 - 06.309 and then sell it off to Aqua or any other third party. No.

04:37 - 11.214 But why would the why would the board or what authority do you contend

04:37 - 14.384 the board has to thwart,

04:37 - 17.988 the plans of, of the appointing authority,

04:37 - 22.258 the the under Burke.

04:37 - 25.462 And I apologize, Your Honor, if I didn't express this correctly,

04:37 - 30.066 what the Burke case says is that the authority's board has to approve.

04:37 - 34.604 Okay, so that's what the Burke case has for, for,

04:37 - 38.408 for for purposes of this portion of the argument, I'm saying ignore Burke.

04:37 - 41.411 Just forget about it.

04:37 - 44.414 If he was, if this court, for any reason says,

04:37 - 48.184 you know, the Burke case was wrong, it doesn't apply,

04:37 - 51.955 then the only rational reading of section

04:37 - 55.191 56, 22 and 5610

04:37 - 00.163 A1 is in looking at the entire context of the mayor,

04:38 - 04.668 is that the three appointing entities collectively would have to authorize

04:38 - 05.568 that transfer.

04:38 - 06.870 And I that was what I just said.

04:38 - 07.337 That's what

04:38 - 11.541 that's my reading the line of cases and reading the statutory construction.

04:38 - 15.879 It would seem to me that under 5622 way in conjunction with Burke,

04:38 - 19.549 the three appointing entities have the right to acquire the asset

04:38 - 23.887 and ultimately sell it off via resolution without the board's approval.

04:38 - 27.390 No, I, I agree with Your Honor.

04:38 - 31.227 If we put park aside, if we put Burke aside,

04:38 - 35.665 and the definitional argument I made about about 5622 way not applying.

04:38 - 39.102 But if you assume 5622 A applies, then

04:38 - 42.906 I think the only rational reading of it is the reading that Your Honor just gave.

04:38 - 46.876 And I say that in particular because of section 1938

04:38 - 51.648 of the statutory Construction Act, because what act 73 does,

04:38 - 55.618 if you look at how 5610 a one in particular operates,

04:38 - 00.924 it makes the three appointing entities

04:39 - 05.328 really Chester County, Delaware County and the city the successors

04:39 - 09.365 to the original five members, to the original five member board.

04:39 - 12.068 That is the only rational way.

04:39 - 14.104 I think you can read 5622 way

04:39 - 17.607 if this court decides it applies to an act 73 authority

04:39 - 21.878 to, to, to, to say otherwise would mean that the city of Chester

04:39 - 25.115 forever, notwithstanding that it is,

04:39 - 28.752 you know, has a a small small portion of the service area

04:39 - 32.589 and the Chester County and Delaware County have been given seats on the board,

04:39 - 37.460 and for all other purposes of governance, that they have no say whatsoever.

04:39 - 38.495 And the most important thing

04:39 - 42.532 that could happen to the authority, which is its ultimate

04:39 - 46.469 disposition, it just doesn't make any sense whatsoever.

04:39 - 50.507 At 73, it specifically recognized that it expanded the board from this,

04:39 - 52.208 disbanded the five member board,

04:39 - 55.879 created the nine member board because at that point, I think what 80% of

04:39 - 58.848 the ratepayers were from Chester and Delaware County, not part of the city.

04:39 - 59.582 Absolutely.

04:39 - 02.585 Your honor, I agree completely on that point.

04:40 - 04.487 And that is the point I think we've made.

04:40 - 05.388 Chester County has made.

04:40 - 06.756 I think Delaware County

04:40 - 09.993 agrees with that point, even though they're in an appellate here.

04:40 - 13.396 So I agree completely with with your Honor there.

04:40 - 17.267 And, you know, I should

04:40 - 20.503 probably stop there because I want to make sure I give your honor

04:40 - 23.573 some more time for questions or leave time for Chester County.

04:40 - 27.977 But that's that's exactly what we are getting at, your honor.

04:40 - 30.613 With with with our arguments we have all night. Mr..

04:40 - 33.049 Okay, good.

04:40 - 34.083 How does it work, then?

04:40 - 35.685 What happens?

04:40 - 36.553 Go through saps.

04:40 - 39.923 Who do you think has to be involved

04:40 - 42.926 with the transfer and how?

04:40 - 45.461 Okay, first,

04:40 - 49.065 we think because it's a multi-member authority,

04:40 - 52.969 it is a joint authority by any reading, joint authority is not a defined term.

04:40 - 56.806 If you look at how joint that works for a joint authority

04:40 - 59.809 in the statute, the transfer,

04:41 - 02.712 it's not expressly addressed.

04:41 - 05.715 It appears that it does not,

04:41 - 10.854 in a joint authorities project, could not be subject to 56, 22.

04:41 - 13.456 We've looked it doesn't look like it's ever been tried.

04:41 - 14.591 Well, let me ask you.

04:41 - 17.327 I don't know why. Why that is because,

04:41 - 24.367 5610 a one starts with the proposition.

04:41 - 27.770 Yes. A water or sewer authority incorporated

04:41 - 30.773 by one municipality

04:41 - 33.409 provides water or sure services

04:41 - 36.880 to residents of at least two counties, etcetera, etcetera, etcetera.

04:41 - 42.852 And then it goes on to say how that authority has to be constituted.

04:41 - 43.620 Correct?

04:41 - 44.888 Correct. Okay.

04:41 - 50.059 This and expressly anticipates the situation we're in here.

04:41 - 54.497 We had an authority that was incorporated

04:41 - 57.500 by one municipality, correct?

04:41 - 59.369 It? Yes.

04:41 - 03.706 And it grew into a situation where it was providing

04:42 - 07.944 services beyond that municipality, as is anticipated in a one.

04:42 - 12.048 I'm sorry, as is anticipated, dissipated in a one.

04:42 - 16.319 That's why the board is then constituted, as

04:42 - 19.923 is required by the remaining subsections of

04:42 - 23.359 of this of this particular statute.

04:42 - 26.329 Yes, Your Honor. Okay. So

04:42 - 27.664 why doesn't

04:42 - 33.436 5622 apply in this context?

04:42 - 39.208 Because it it talks about a project established by a municipality.

04:42 - 43.112 There's symmetry between these two sections that we're talking about.

04:42 - 48.184 I that the authority that would have to approve the sale

04:42 - 52.488 or transfer would be the Multi-county,

04:42 - 55.558 authority that was established under

04:42 - 58.561 56, 2556 ten A1.

04:42 - 01.397 I agree that it's the multi-county authority

04:43 - 05.902 that you're saying 5622 doesn't apply to multi-county authorities.

04:43 - 09.539 And that's why I'm I keep stumbling this.

04:43 - 11.107 Yes, and I apologize.

04:43 - 14.110 I'll try and be a little bit clearer on this point.

04:43 - 18.247 It doesn't apply to multiple member authorities because it's no longer

04:43 - 24.687 a project established by a municipality because of the replacement of the board,

04:43 - 28.691 but it was originally established by one municipality,

04:43 - 33.296 just as it's anticipated in 56, 1081.

04:43 - 38.167 Yes, but if you look at the rest of 56, 22, it talks about the project

04:43 - 39.736 in the present tense.

04:43 - 42.605 The current project, as a result of act 73

04:43 - 44.140 creating

04:43 - 47.143 a nine member board appointed by three municipalities,

04:43 - 50.813 the project is now one that's established by multiple municipalities.

04:43 - 56.719 And that that that note that 5622 does not use the term

04:43 - 59.956 incorporating municipality.

04:44 - 03.493 It's nowhere in section 5622.

04:44 - 06.496 Secondly, section 5622 I.

04:44 - 09.332 Had the legislature had the General

04:44 - 12.335 Assembly wanted to refer in 5622

04:44 - 16.339 to an incorporating the municipality, it could have used those terms.

04:44 - 17.673 It didn't.

04:44 - 19.575 And that's also why your honors.

04:44 - 22.578 I think it's important to note that if

04:44 - 25.548 if we were talking about a 5604

04:44 - 28.951 joint authority,

04:44 - 31.954 the the rationale that the Commonwealth Court used

04:44 - 37.160 would be equally applicable, meaning if you were to take the cities

04:44 - 40.396 and I was arguments in the Commonwealth court's rationale

04:44 - 43.800 that the phrase Your Honor just used

04:44 - 48.337 established by a municipality equates to incorporate sorry,

04:44 - 52.542 incorporating municipality that every joint authority's project

04:44 - 56.579 would be subject to being taken by only the original incorporated.

04:44 - 00.383 It doesn't matter how many joined later, whether it's 5 or 50,

04:45 - 04.520 only that 1 or 2 who actually incorporated the original articles could take it.

04:45 - 07.590 That cannot be what the General Assembly,

04:45 - 11.027 intended here, and I just can't think of any circumstance

04:45 - 15.531 under where it would be a rational reading to, to conclude that.

04:45 - 16.666 And I think if you look

04:45 - 20.903 at the Commonwealth court's opinion, the, the, the, the unfortunately

04:45 - 24.574 I think the, the, the, the kind of trapdoor that it fell through

04:45 - 29.812 is in looking at this at the may not as an a statute

04:45 - 32.915 that distributes government power among municipal

04:45 - 35.685 authorities, municipalities, different municipalities.

04:45 - 39.655 But in this term of, you know, this sort of ownership,

04:45 - 42.658 like it's a private corporation where somebody holds stock

04:45 - 46.429 that's not we submit that is not a good way to look at this.

04:45 - 47.396 I, I'm referring

04:45 - 51.167 specifically to the Commonwealth Court majority opinion in one of the footnotes.

04:45 - 54.537 I think if you look at the at the dissent in the Commonwealth Court,

04:45 - 57.707 it's dead on on a lot of the points and questions that your honors

04:45 - 00.710 have raised here today, that that's the by judge Roger.

04:46 - 01.677 That's what you're talking about.

04:46 - 03.713 Yes. Judge was ex judge world ex the Senate,

04:46 - 06.082 which I believe was joined by Judge Cone earlier.

04:46 - 08.918 That's where the that's where the idea of proper authorities came from,

04:46 - 11.621 which I was just talking about earlier, which in this particular case,

04:46 - 15.791 the proper authorities would be all three appointing municipal cities.

04:46 - 20.663 Yes, I agree with that.

04:46 - 25.001 If, if if you believe section 5622 A applies to it,

04:46 - 28.971 to A to a multi-member municipal authority, you would agree that.

04:46 - 30.072 I'm sorry.

04:46 - 33.075 Go ahead. Just you would agree that

04:46 - 37.079 this particular board, this particular entity now as expanded,

04:46 - 41.217 doesn't necessarily meet the definition of an individual authority

04:46 - 44.554 or a joint authority as they're defined under the acts.

04:46 - 47.323 But it's not an individual authority.

04:46 - 48.157 Correct?

04:46 - 52.428 I don't I don't necessarily agree with Your Honor statement on the second point.

04:46 - 54.664 A joint authority joint authority is not defined.

04:46 - 59.569 Joint authority is really used as a descriptor in 5610, not just a one,

04:46 - 05.341 but throughout 56, ten and in 56, 003, 5604 and several other places.

04:47 - 06.709 It's not a defined term.

04:47 - 10.680 If you look at the map as a whole, it really just means an authority

04:47 - 13.683 that has multiple members, multiple municipal members,

04:47 - 18.521 whether it's an act 73 authority or an authority that is created

04:47 - 22.825 with two incorporated by two municipalities, or five under 5603,

04:47 - 27.830 or a municipal authority that under 5604 joins later.

04:47 - 31.367 So yes, I generally agree

04:47 - 33.169 with the concept that Your Honor was stating,

04:47 - 35.738 but I think it's a little more nuanced because joint authority is

04:47 - 37.974 is not a defined term in the mayor.

04:47 - 38.808 Okay. Gotcha.

04:47 - 40.243 Mr. Kent, can you move on?

04:47 - 44.013 Do you have any just a few, concluding points,

04:47 - 45.781 if Your Honor won't be for a minute.

04:47 - 47.950 You know, Oklahoma City asked this court to engage

04:47 - 51.053 in essentially rewriting the statutory language based

04:47 - 54.123 on claimed equitable considerations outside of the pleadings.

04:47 - 58.327 You know, basically, if you boil it down, the city in particular in Ottawa,

04:47 - 02.598 say they want and need to get their hands on the CWA system for a lot of reasons

04:48 - 05.601 that we think are well beyond this court's consideration.

04:48 - 10.172 We don't think the short the court should countenance that.

04:48 - 11.741 If it does,

04:48 - 15.511 I would just ask the court to be cognizant of the substantial interest of the over

04:48 - 20.283 200,000 people and businesses relying on the CWA for clean, affordable water.

04:48 - 23.986 We asked the court to reverse the Commonwealth Court,

04:48 - 27.890 vacate its order, reinstate the trial court's orders,

04:48 - 31.460 denying aquas in the city's motions for judgment on the pleadings,

04:48 - 34.997 and to decide this case as expeditiously as possible

04:48 - 38.601 to give clarity to the people and businesses who rely on the CWA.

04:48 - 41.604 Thank you for your attention to this very important issue

04:48 - 43.439 for Southeastern Pennsylvania.

04:48 - 45.808 Thank you, Mr. Kent. Let's hear from Mr. Emmerich.

04:49 - 03.259 Good afternoon.

04:49 - 04.126 May please the court.

04:49 - 06.529 My name is Frank Emmerich from Eckert Siemens

04:49 - 09.498 here on behalf of the County of Chester.

04:49 - 10.466 With it.

04:49 - 13.469 So the Commonwealth's decision,

04:49 - 18.574 in the appeal, Lee's arguments rely on the premise that the municipal,

04:49 - 21.977 the municipal authorities Act creates lesser status.

04:49 - 26.215 Municipal participating municipalities in authorities

04:49 - 29.685 and therefore,

04:49 - 32.388 at the end of the day, only one authority,

04:49 - 35.391 the original authority, the one that appears.

04:49 - 36.859 Excuse me, municipal.

04:49 - 40.796 The original municipality that appears on the article of incorporation.

04:49 - 44.367 Operated party can effectuate

04:49 - 48.971 a 5622, termination or conveyance.

04:49 - 51.307 Excuse me, of a project.

04:49 - 55.878 I plan on addressing my comments and pointing to five areas

04:49 - 58.881 that I think when you look at the Commonwealth Court's decision

04:49 - 04.086 cannot be reconciled with the rest of the provisions of the Ma.

04:50 - 08.023 We have to start with some context first, which is that

04:50 - 12.261 the financial cost of infrastructure and the requirements,

04:50 - 15.264 environmental regulatory requirements

04:50 - 18.033 that go into our water and sewer treatment

04:50 - 19.602 created a

04:50 - 24.540 situation where municipalities were best served by joining together

04:50 - 28.110 their their operations, instead of trying to do it solo.

04:50 - 33.115 And that's certainly three look to address situations

04:50 - 36.118 where the authority

04:50 - 41.891 that serving multiple municipalities no longer reflects the original envisioned

04:50 - 46.796 project that's that started the the you know, the the water service.

04:50 - 51.967 So the General Assembly decided that a legislative created mandate

04:50 - 58.474 would be required when jurisdictional boundaries, of the authority have now

04:50 - 03.245 so exceed it to where it represents less than 20% of the ratepayers.

04:51 - 07.349 And all that act 73 really did was create

04:51 - 11.987 an additional process that join municipalities together.

04:51 - 16.158 5604 is nothing more than a process shall,

04:51 - 19.295 if I am the one to voluntarily join

04:51 - 23.699 an authority as a municipality, how do I go about doing?

04:51 - 26.268 And it goes through the process. 5604 does it

04:51 - 29.038 sets forth a process?

04:51 - 32.408 Act 73 just created a process that says, if this

04:51 - 35.845 if this situation definitionally is met.

04:51 - 40.549 Therefore, the board changes and the,

04:51 - 44.720 the governance of the municipality now has or.

04:51 - 47.723 Excuse me, the authority has now changed.

04:51 - 52.061 Now the city and Aqua argue that act 73 solely provides

04:51 - 58.234 Delaware and Chester counties with a lesser governance role.

04:51 - 01.003 Just a seat at the table of that.

04:52 - 05.941 And they argue that equal decision making to the city would have required,

04:52 - 11.247 if the CWA was going to be governed by anyone other than the city of Chester,

04:52 - 14.850 would be for the 36 other municipalities.

04:52 - 17.887 Of this, 37 municipality,

04:52 - 23.859 authority to have gotten together and pursued the process of 5604,

04:52 - 27.830 passing the resolutions being approved in the city of Chester,

04:52 - 31.467 approving them being brought into the the authority

04:52 - 36.672 now recognizing that there's flaws in the Commonwealth court's decision

04:52 - 42.177 is the city and Aqua will come forward and brief in front of, your honors.

04:52 - 44.647 The fact that,

04:52 - 46.582 what, in,

04:52 - 50.486 in actuality has happened is that there's a difference

04:52 - 54.290 between act 73 and, and,

04:52 - 57.993 authorities formed under 5604,

04:52 - 01.096 and they talk about a 5604

04:53 - 04.099 created in corporator like,

04:53 - 07.570 rights to the adjoining municipalities.

04:53 - 09.538 There.

04:53 - 10.940 But if you put aside,

04:53 - 16.078 even if you put aside acts 73, the Commonwealth Court's decision

04:53 - 22.284 which strip municipalities under that were formed under 5604 of any decision

04:53 - 27.022 making of whether a project of an authority is continued, expand it

04:53 - 30.426 or eventually conveyed to a municipality.

04:53 - 35.931 Because the Commonwealth Court said that it is reserved exclusively

04:53 - 40.369 essentially to the municipality, appearing on the Articles of incorporation.

04:53 - 43.372 So that is floor number

04:53 - 47.142 one of the Commonwealth Court decision in the sense of that.

04:53 - 49.144 And it was

04:53 - 54.483 talked about by, by CWA Council is that you could have outside of act 73,

04:53 - 58.954 municipalities have joined under the process of 5604

04:53 - 04.026 and have the same situation where under the Commonwealth Court's

04:54 - 08.130 decision, 5622 could be used to

04:54 - 11.467 force on behalf of only

04:54 - 15.738 the decision of the original incorporating authority municipality,

04:54 - 19.975 I apologize the regionally incorporating municipalities

04:54 - 23.278 decision to have that project conveyed.

04:54 - 24.613 So no matter what

04:54 - 28.917 percentage of the product is represented by adjoining municipality

04:54 - 32.087 under a 5604 process or an act

04:54 - 35.324 73 process, no matter what infrastructure.

04:54 - 41.830 The municipality, that's some municipal the other than the original incorporating

04:54 - 45.734 municipality has no power.

04:54 - 50.239 If you apply the Commonwealth Court's decision, the only person, the only entity

04:54 - 55.144 that has power, which would be the original incorporating authority.

04:54 - 00.616 Now, we believe that

04:55 - 04.386 when you look at act 73, the county's position on that, as

04:55 - 08.724 you can assume that the General Assembly intended for that to be

04:55 - 14.530 the impact is if they're adding act 73, dealing with representation, okay.

04:55 - 17.533 And saying when it becomes so lopsided,

04:55 - 21.704 factors in the counties of Delaware and Chester County

04:55 - 25.374 in this particular instance, have to be joined into the authority.

04:55 - 29.278 There is no way that, the Commonwealth Court's decision,

04:55 - 33.582 which would render a 5604 and act 73

04:55 - 39.188 join municipality subject to the whim of one municipality,

04:55 - 42.191 which is the original, incorporating the authority

04:55 - 45.761 now perhaps city, the city and aqua

04:55 - 49.698 brief in front of your your honors and emphasize this incorporate

04:55 - 53.168 or like aspect of it in terms

04:55 - 58.173 of a 5604 authority because, you again,

04:55 - 03.412 the object of statutory construction is can you make the sections work together?

04:56 - 10.686 So let's just go with the idea of 5622 talks about conveying of projects.

04:56 - 14.189 Now, whether this court wants to look at conveying

04:56 - 19.428 of a project as a, as a project as a is a defined project,

04:56 - 23.599 build a water tower, do this or is the authority as a whole?

04:56 - 26.068 Of it

04:56 - 29.004 is 5622

04:56 - 32.708 as the Commonwealth Court decide it could be used by the original,

04:56 - 37.045 incorporating authority to end the authority to terminate it,

04:56 - 40.282 to end its existence, conveyed away the property

04:56 - 43.418 to the municipality.

04:56 - 47.489 Well, let's look at what the Municipal Authorities Act talks about.

04:56 - 51.894 As far as the issue of when an authority has been expired,

04:56 - 56.865 when it is over, when it's done, when it ceases corporate existence.

04:56 - 00.302 What did the General Assembly say there?

04:57 - 02.771 And this is 5623.

04:57 - 05.507 So 5622 ends it.

04:57 - 10.345 If it needs to be revived, 5623 clearly says that

04:57 - 14.950 that has to be any municipality that has joined the authority,

04:57 - 18.854 not the incorporating municipality

04:57 - 22.391 is 5623 says if you want to resurrect

04:57 - 27.796 an authority that has expired, you need the consent and the approvals,

04:57 - 31.033 resolutions and and so forth of all

04:57 - 34.636 the joint municipalities in that authority

04:57 - 37.272 Council.

04:57 - 40.309 Yes, 5622 is read

04:57 - 43.879 in the manner that the Burke Court read it.

04:57 - 48.016 Wouldn't that assuage your concerns?

04:57 - 52.855 Because it would need the vote

04:57 - 56.658 of the authority constituted

04:57 - 59.928 pursuant to 5622

04:58 - 01.864 and 56?

04:58 - 06.168 Can A1 in order to approve the conveyance?

04:58 - 09.271 So there could be no conveyance

04:58 - 13.075 without the approval of the Joint Board

04:58 - 16.678 as constituted under 56 1081?

04:58 - 17.946 Correct.

04:58 - 19.648 If I understand. Okay. With that.

04:58 - 23.886 Your your your question, Your Honor, is that if Burke applied

04:58 - 28.156 and the authority itself has to approve of any.

04:58 - 28.991 Yeah.

04:58 - 32.895 Termination of a project or of its own existence is.

04:58 - 33.629 Yes. Correct.

04:58 - 38.500 Your honor, is then that's talking about the nine member board in this case,

04:58 - 41.837 three from the city, three from Chester County, three from Delaware.

04:58 - 43.972 And that takes care of your concerns.

04:58 - 45.574 Is that is that correct?

04:58 - 46.909 Well or not?

04:58 - 50.612 Because you would say then that only the,

04:58 - 55.517 municipality that originally established,

04:58 - 01.823 their project could move for the,

04:59 - 05.460 acquisition of the Water Authority.

04:59 - 10.532 I would say that's what the Commonwealth Court is saying is Chester County.

04:59 - 11.867 But they said more than that.

04:59 - 14.836 I mean, they they didn't account for Burke,

04:59 - 18.006 which goes in allow that to happen automatically.

04:59 - 21.209 I mean, Burke would see the reading of,

04:59 - 24.513 5622, which suggests that the,

04:59 - 29.718 in cooperating municipality would have to present

04:59 - 34.756 a resolution for consideration by the authority's board,

04:59 - 37.859 who would then have to approve or disapprove it.

04:59 - 40.996 I mean, that's what Burke's reading

04:59 - 43.999 a 5622 would suggest.

04:59 - 47.636 And in Your Honor's question with that, are you okay with that?

04:59 - 50.639 I agree with that. That's what Burke says.

04:59 - 53.608 But but are you all right with that resolution?

04:59 - 56.878 Yeah, in the sense of your Honor, if you're asking.

04:59 - 00.082 I mean, to me, I'm just having a very difficult time

05:00 - 05.220 reading more into 56, ten a one then what it says.

05:00 - 06.989 And it says a lot.

05:00 - 10.826 I mean, obviously it grants representational,

05:00 - 16.031 authority to the various participating municipalities.

05:00 - 18.467 It clearly does that. And that's that's a big deal.

05:00 - 24.606 But all that does is suggest how the board then has the authority to act.

05:00 - 28.443 It doesn't authorize any particular activities at all.

05:00 - 31.546 It just says, here's what you need in order to have

05:00 - 34.549 a duly constituted board in this situation.

05:00 - 38.520 Well, Chester County's position is what what that does is creates

05:00 - 42.991 a joint authority, a legislatively mandated joint authority.

05:00 - 47.529 So whatever whatever this court would find would be rights

05:00 - 53.201 to a 5604 municipality that's joined an authority through that

05:00 - 56.705 process would be the same as an act 73,

05:00 - 00.409 call it legislatively mandated,

05:01 - 03.945 joint authority and the point of Chester County.

05:01 - 08.583 I think, you know, justice, would I think you said would would

05:01 - 10.052 Chester

05:01 - 13.055 County be okay with it or something like that is.

05:01 - 13.488 Yeah.

05:01 - 16.691 The point of Chester County right here is act 73

05:01 - 19.694 clearly was intended to create representation.

05:01 - 20.896 Okay.

05:01 - 23.665 So that's what Chester County's here fighting for,

05:01 - 27.069 which is that the legislature clearly said

05:01 - 31.339 when something became so disproportionate, the authority, you know,

05:01 - 35.844 the jurisdictional reach of an authority has become so disproportionate

05:01 - 39.581 to who is on that articles of incorporation.

05:01 - 45.287 There must be a change, and we are going to mandate it through act 73.

05:01 - 47.823 The representation has to be changed.

05:01 - 49.758 Representation in control of the board

05:01 - 53.095 of of how this municipal authority would work.

05:01 - 54.529 Okay.

05:01 - 57.966 Is you're right is there's not, you know, after, you know,

05:01 - 04.272 56 ten a one, you know, defines okay, this is a situation.

05:02 - 07.008 And now we're going to create a nine member board with it.

05:02 - 10.879 But it doesn't change everything else in the MTA that would apply.

05:02 - 14.749 And that was my point on 5623 is okay.

05:02 - 20.088 If the CWA was was expired, had terminated, okay.

05:02 - 23.091 It had been conveyed, let's say, to the city,

05:02 - 25.794 okay, and and therefore expired.

05:02 - 28.396 But for whatever reason, the city needs to re,

05:02 - 31.333 reactivated or

05:02 - 36.771 whatever is that's where 5623 is saying, no, you can't read it

05:02 - 41.943 like the Commonwealth Court and limit 5622 to the incorporating authority.

05:02 - 44.112 The cooperating municipality.

05:02 - 45.413 You have to read it.

05:02 - 49.417 And now under act 73 as to an act of all three,

05:02 - 54.289 all three participating municipal entities.

05:02 - 58.326 The other thing I want to point out is it's an absurd,

05:02 - 02.931 absurd result of the Commonwealth court's decision.

05:03 - 04.032 And in the focus

05:03 - 08.303 on incorporating the emphasis on the incorporating municipality is,

05:03 - 13.975 as you would go through in and again the rest of the Ma could it, could it be

05:03 - 19.581 make, you know, apply to make sense is that of the nine board members

05:03 - 24.152 that are required under act 73 is 56,

05:03 - 27.656 ten would then require at least five of them

05:03 - 30.859 to be not only city

05:03 - 33.828 residents, but also city citizens.

05:03 - 34.429 Okay.

05:03 - 38.800 So is that what the General Legislature General Assembly was trying to accomplish

05:03 - 43.004 in representation of creating a situation where, again,

05:03 - 46.007 if the incorporating municipality

05:03 - 51.279 has some heightened meaning and a in, importance

05:03 - 54.516 within the Ma, that doesn't exist in the definitional section

05:03 - 59.754 or anywhere else is 5610 B and 5610 A1

05:04 - 03.058 do define how and what

05:04 - 06.261 the called the makeup of a member

05:04 - 09.531 for the municipal board needs to

05:04 - 12.867 to fit what criteria that needs to fit.

05:04 - 17.305 But 5610 B says that the majority of the board

05:04 - 22.677 has to be residents and citizens of the incorporating municipality.

05:04 - 26.681 So again, it's the county of Chester's contention.

05:04 - 30.485 That is, if you try to use the Commonwealth

05:04 - 34.256 Court's decision as the 5622 and apply throughout the

05:04 - 37.926 the the act, the mayor to make the other sections

05:04 - 40.562 reconcile with the

05:04 - 44.299 other the other sections is that's another area

05:04 - 49.938 where there's a problem in what the Commonwealth Court decided on.

05:04 - 53.174 There is this court would have to say that

05:04 - 57.846 the intent of the General Assembly and Act 70

05:04 - 01.182 three was to mandate that

05:05 - 04.185 the city, the the city and,

05:05 - 07.589 the nine member board with the county of Chester

05:05 - 11.626 and the county of Delaware saying outside their jurisdictional reach

05:05 - 16.498 and saying, all right, who lives and who's a citizen of the city of Chester?

05:05 - 20.235 I want them to be my representative on the board.

05:05 - 26.041 And when you look at 5610 and 5610 a one as far as the initial call,

05:05 - 30.312 a preamble as to who and what the profile of a member should be

05:05 - 33.381 is, I think you can look at it

05:05 - 36.918 and clearly get the point of what acts 73

05:05 - 40.188 and what in general, 5610

05:05 - 43.158 was trying to do is trying to accomplish that.

05:05 - 46.728 The board representative on a municipal authority

05:05 - 50.832 would match the appointing authority, would have the interest, would,

05:05 - 53.101 you know, be coming from the same background,

05:05 - 55.437 the same community, have the same interest in it?

05:05 - 02.177 And the reality on as far as

05:06 - 05.547 the makeup of the board and being a majority,

05:06 - 09.084 being residents and citizens of the city of Chester

05:06 - 12.620 is obviously throughout the history of the CWA.

05:06 - 16.224 Since act 73, the city has never required that.

05:06 - 21.996 The next point I want to raise is that act 73 was enacted

05:06 - 24.999 to provide fairness to the ratepayers,

05:06 - 31.139 and that's demonstrated how the mayor has addressed the money, the authority

05:06 - 34.609 prior to act 73, and how it strengthened those

05:06 - 38.012 those provisions in act 73.

05:06 - 42.150 So act 73 and 56, 12 a one

05:06 - 45.387 created a prohibition and in fact, create

05:06 - 48.390 a private right of action to a ratepayer

05:06 - 52.260 for that, saying that the money of an authority

05:06 - 54.062 may not be used for any purpose

05:06 - 57.499 other than directly related to the purpose and mission of the authority,

05:06 - 00.602 and I'm bringing this up because it goes again to the point

05:07 - 03.605 of trying to make the Mar a work.

05:07 - 07.008 And could it work with how the Commonwealth defined

05:07 - 11.246 a, the municipality under 5622

05:07 - 14.916 as only being the incorporating municipality,

05:07 - 16.251 and then

05:07 - 19.687 consistent with what was specifically put in place

05:07 - 23.992 as far as the money of the authority having to benefit everyone,

05:07 - 27.061 not just the incorporating municipality,

05:07 - 30.031 it has to benefit all the ratepayers.

05:07 - 33.034 Is that concept actually was already

05:07 - 36.070 in the Ma prior to act 73?

05:07 - 39.774 In 5622 D in talking about

05:07 - 43.778 reserves of the the authority again

05:07 - 47.916 saying that they should only be used for purposes of operating, maintaining,

05:07 - 51.319 repairing and improving and extending the project.

05:07 - 54.856 Again, just simply a point to illustrate

05:07 - 59.027 the fact that pre act 73 and post

05:07 - 02.030 act 73, there's an obvious conscious effort

05:08 - 07.635 by the General Assembly to create a system that is fair to all the ratepayers,

05:08 - 10.872 not just to the incorporating municipality.

05:08 - 14.275 In my final point of the problems

05:08 - 19.180 with the, Commonwealth Court's decision is it would allow

05:08 - 24.752 any original incorporating authority to circumvent

05:08 - 28.523 okay act 73.

05:08 - 33.428 So whether it be a an authority that's created under 56

05:08 - 38.700 or 4 or an authority that is soon to be created under act 73,

05:08 - 42.003 all the original municipal,

05:08 - 44.572 municipality, the original municipality

05:08 - 48.076 that incorporated the authority would need to do this.

05:08 - 52.814 Simply create a second authority, beat the statistical 80%.

05:08 - 57.919 Just take the CWA, create CWA one CWA two.

05:08 - 01.523 Boom. Still control both boards 100%.

05:09 - 05.593 The city would control both boards in that situation.

05:09 - 10.632 And you know again thought the the clear intent of act

05:09 - 14.869 73 which was intended especially when

05:09 - 17.539 the the demographics of the

05:09 - 22.577 authority had so much switched to make sure that each ratepayer

05:09 - 26.948 was appropriately represented and their interest was protected.

05:09 - 32.153 And for that reasons, we believe on behalf of the County of Chester,

05:09 - 36.891 is that the Commonwealth Court decision, should be reversed

05:09 - 39.894 and the trial court, decision

05:09 - 43.498 put back in place, with it.

05:09 - 44.632 Thank you for your time.

05:09 - 46.367 Thank you, Mr. Emmerich.

05:09 - 48.703 Let's hear from Mr. White.

05:09 - 51.339 The city of Chester.

05:09 - 52.607 Good afternoon, mate, please.

05:09 - 56.377 The court, Matthew White, representing the city of Chester.

05:09 - 58.346 I'm from Ballard Spa.

05:09 - 00.982 Co-counsel Scott Withers.

05:10 - 02.917 Mr. Withers is from land. McClean.

05:10 - 06.387 He will be representing Aqua, who we heard from earlier today.

05:10 - 10.491 I don't think he's going to go on as long because given the hour of the day,

05:10 - 11.826 we're going to try to.

05:10 - 15.430 Don't make any promises you can't keep unless there's a lot of questions.

05:10 - 20.835 And Candace Hall, from McNeese Wallace is representing Delaware County.

05:10 - 26.441 Delaware County, as the court knows, has had a different argument for a firm.

05:10 - 29.711 It's of the court below that that neither Aqua or the city made.

05:10 - 31.346 All right.

05:10 - 33.881 With that, Your Honor, I'd like to start

05:10 - 37.218 with the municipality authorities act.

05:10 - 41.055 We have act 73 has been discussed a lot,

05:10 - 45.593 as if it was some major sea change in the municipality authorities act.

05:10 - 50.598 In fact, it was a relatively minor change in a relatively.

05:10 - 53.167 It's an important part of the statute.

05:10 - 57.238 But the statute where it was changed goes to the governance of the board.

05:10 - 00.508 That's it. The municipality authorities act.

05:11 - 04.212 I dog eared my copy.

05:11 - 07.649 But but it's but it's it was started.

05:11 - 10.485 The initial version was 1935.

05:11 - 12.920 It was amended in 1945.

05:11 - 15.923 It was reenacted in 2001.

05:11 - 19.394 At all that time the so incorporate

05:11 - 22.697 or under all of those versions of the act

05:11 - 26.267 for this water authority was the city of Chester.

05:11 - 30.938 In 2012 there was an amendment not to the entire act, but just to section

05:11 - 34.075 six 5610.

05:11 - 37.645 And the provision, of course, is 5610 A1.

05:11 - 40.648 A1 creates a new board, expands from 5 to 9,

05:11 - 43.518 and gives the counties Chester and Delaware County three members.

05:11 - 44.485 Right.

05:11 - 46.654 And in fact, Your Honor, was it your position?

05:11 - 49.490 Just so I'm clear on this, as we move forward to put this in context,

05:11 - 53.327 that all that did was change the governing philosophy and didn't give the

05:11 - 55.730 Chester County or Delaware

05:11 - 59.567 County any kind of oversight, responsibilities or ownership of the.

05:11 - 02.103 Well, it doesn't give them ownership, but

05:12 - 03.037 what's your contention?

05:12 - 06.641 It just it just expands the board and gives them members and that's it.

05:12 - 11.813 Yes. And the and the reason for that is is twofold.

05:12 - 15.650 One is when you look at the language of the statute itself,

05:12 - 20.988 a 56, ten, a one after the prefatory language about which,

05:12 - 25.126 when, when there's something within an incorporating municipality

05:12 - 26.160 and now it's grown.

05:12 - 29.163 And to serve additional counties and additional people.

05:12 - 32.233 The language of the of the section says,

05:12 - 37.472 all of the following apply

05:12 - 40.775 and it goes one, two, three.

05:12 - 44.011 All of the following apply and it goes to the board makeup.

05:12 - 48.449 It doesn't say that there's any other provisions that are affected.

05:12 - 51.919 It doesn't cross-reference that we're we're planning

05:12 - 54.956 to amend all of the other sections of the statute

05:12 - 59.026 that highlight the importance of the incorporating municipality.

05:12 - 05.466 The Municipality Authorities Act in 1935 was started to provide municipalities

05:13 - 08.770 with a way to fund big public projects like water

05:13 - 11.839 systems, sewer systems, things of that nature.

05:13 - 15.209 It was it was done at a time, coming out of the depression

05:13 - 19.313 to allow, municipalities with some federal funding,

05:13 - 22.917 to do things where they didn't have to raise taxes

05:13 - 25.920 and they could fund things by ratepayers

05:13 - 29.590 that this a matter that your client had had no skin in the game

05:13 - 34.328 even back then, because it was financed by revenue bonds of the new authority.

05:13 - 37.999 I don't think that the your client was in any risk at all.

05:13 - 43.037 The city, the city of Chester, and all of the other municipalities that,

05:13 - 48.009 excuse me, the only incorporating, municipality was the city of Chester.

05:13 - 50.344 The skin in the game.

05:13 - 53.347 It doesn't have any more skin in the game, or any less skin in the game

05:13 - 56.417 than any other of the municipalities in this courtroom,

05:13 - 59.687 except that the bulk of the ratepayers are not in your client.

05:13 - 02.824 Well, Your Honor, that that's the situation now.

05:14 - 06.828 But that's not an unusual situation under the municipal Authorities Act.

05:14 - 10.932 In fact, when you look at the when you look at the the whole structure

05:14 - 15.336 of the act, 5603 is, is how you incorporate,

05:14 - 20.208 an authority, the incorporating of the incorporating municipality

05:14 - 24.946 incorporates and has to have a public hearing and has to sign on to

05:14 - 28.583 it has to follow things with the Secretary of State, 5604,

05:14 - 33.421 which my colleagues alluded to, talks about joint authorities and how,

05:14 - 36.924 other municipalities may join an authority

05:14 - 41.729 that has to be approved by the incorporating authority.

05:14 - 46.868 There's power vested in the incorporating authority throughout this statute.

05:14 - 49.036 And and that didn't happen in this case. Right.

05:14 - 52.807 It in what respect, Your honor?

05:14 - 53.941 In other words, they didn't join.

05:14 - 56.711 This was a creation of a new board member.

05:14 - 58.980 As a matter of fact, Your Honor, that's exactly right.

05:14 - 01.682 The so your position is this is not a joint authority.

05:15 - 03.484 It's it's a single, single use of force.

05:15 - 08.489 And and in fact, the, county in their brief and judge logic

05:15 - 13.060 in his dissent, went so far as to say that this was a legislative,

05:15 - 17.798 excuse me, a joint authority by legislative fiat, which just means

05:15 - 22.103 that it was it's not in the language in any part of the statute.

05:15 - 24.005 There's no part of the legislature

05:15 - 27.008 that says we're creating a new class of authority.

05:15 - 31.946 There's no part of this of 5618, which is the only change in 2012.

05:15 - 36.317 There's nothing in that statute that was passed at 73

05:15 - 39.287 that says we're creating this new, type

05:15 - 42.390 of, of, of, of authority.

05:15 - 43.958 Then why do it?

05:15 - 45.526 Excuse me? Why do it?

05:15 - 48.162 Why do what, your Honor? Why expand the board?

05:15 - 48.629 Why this?

05:15 - 50.531 For why disband the why?

05:15 - 52.366 Why did they expand the board? And why?

05:15 - 55.369 Why create a whole new board giving Chester and Delaware County

05:15 - 58.606 membership, or 3 or 6 members equal membership?

05:15 - 01.976 Well, Your Honor, and there's a lot of talk by my

05:16 - 06.514 by my colleagues, from the county, representing the county,

05:16 - 10.217 about the supposed legislative intent

05:16 - 13.220 and what must the legislature must have been thinking.

05:16 - 16.390 What we're left to do in this case is to look at the language

05:16 - 17.625 of the statute itself.

05:16 - 19.727 And that's it.

05:16 - 20.628 Look at the.

05:16 - 24.465 And the only thing that that that we could find,

05:16 - 28.869 the only thing that was referenced is actually in the, amicus brief,

05:16 - 32.440 by by the House, by the House parties,

05:16 - 36.777 was from the legislative journal of the House

05:16 - 42.717 in, June 19th of 2012.

05:16 - 47.088 And it says that

05:16 - 50.324 the purpose of this is so that the county commissioners

05:16 - 53.327 in those counties would get to appoint members to the authority board.

05:16 - 57.264 The additional members would represent authority customers

05:16 - 00.835 on rates, service problems and other issues.

05:17 - 04.939 That's it, a seat at the table, which has been sort of said

05:17 - 07.942 derisively, not this biggest issue.

05:17 - 11.512 No, your other issues don't include this biggest issue.

05:17 - 13.247 And that's and that's what was said.

05:17 - 16.250 And that's the only thing that we have from the legislative history.

05:17 - 18.119 It doesn't talk about that.

05:17 - 21.689 There's that there's some intent to to make some wholesale

05:17 - 24.825 change and, and upset the balance of power.

05:17 - 28.295 That's granted to the incorporating municipality.

05:17 - 31.098 Well, if they get a seat at the table, aren't they entitled to eat?

05:17 - 31.632 In other words,

05:17 - 33.634 if the sale of this particular property goes through,

05:17 - 36.837 don't they get a portion of the assets to the sale, or does it all go to Chester,

05:17 - 39.840 your honor, the the the

05:17 - 43.878 the incorporating municipality is not not entitled.

05:17 - 47.882 You just take the incorporating municipality under 5622

05:17 - 52.420 has to assume all the obligations that the authority has.

05:17 - 56.357 So in other so in other words, whatever debt is incurred

05:17 - 59.994 by the authority specifically under 56, 22, a,

05:18 - 04.698 that has to be netted out and that has to be taken care of.

05:18 - 08.369 So it's not as if all of the proceeds of any sale that could be done.

05:18 - 11.272 Where do that? And by the way, there's nothing in this record.

05:18 - 12.573 What is it that profits go then?

05:18 - 13.741 I, I understand what you're saying,

05:18 - 16.744 but who gets to net profits under your analysis,

05:18 - 20.081 your honor, the the first of all,

05:18 - 22.917 there's nothing in the record that says there is a sale.

05:18 - 26.220 This is all about whether, whether and the only narrow issue

05:18 - 29.223 that went up on both from the trial court.

05:18 - 30.825 That's the whole idea behind this, right?

05:18 - 34.228 They want to sell off the asset to satisfy some debts, your honor, they

05:18 - 37.565 I think specifically the state of play right now is that

05:18 - 40.568 and this is not in the record, but it's what's publicly available.

05:18 - 42.703 The state of play right now is that the receiver

05:18 - 45.706 for the city wants to monetize the issue and keep it in public.

05:18 - 48.342 And ideally keep it in public hands.

05:18 - 53.447 So Council 56 22 a is the city's position.

05:18 - 55.549 The proper authority? Is the receiver?

05:18 - 57.885 No, Your

05:18 - 00.888 Honor, the city's position is that the proper,

05:19 - 04.125 where the proper authorities under 56, 22.

05:19 - 06.560 Yeah. Let me let me let me get right to it.

05:19 - 09.563 You know, I just want to read it exactly

05:19 - 13.367 the the the introductory sentence,

05:19 - 18.439 the project established under this chapter by a board appointed by municipality.

05:19 - 22.843 The municipality is a is the is the city of Chester.

05:19 - 27.648 Then it goes the that it goes on, it says it which is.

05:19 - 33.120 The municipality may, by appropriate resolution or ordinance

05:19 - 37.091 adopted by the proper authorities, which means it's it's,

05:19 - 42.696 city council to signify its desire to, to to do so and then the authorities.

05:19 - 45.699 This means the,

05:19 - 47.568 the Water Authority shall convey

05:19 - 50.571 by appropriate instrument in the project to the municipality.

05:19 - 52.540 That's what that means.

05:19 - 58.045 And are you saying that the authority is a project for purposes of 5622? I

05:19 - 59.813 we're saying that

05:19 - 03.117 the that the project that's been established,

05:20 - 08.255 which is an entire water system, would be in a

05:20 - 11.425 I grant you, your honor, I don't think that there's any difference.

05:20 - 14.328 I think if the entire water system were taken back, I don't think

05:20 - 17.331 there'd be much left for the authority to do.

05:20 - 21.502 But it would also be taking any on the obligations that the authority had.

05:20 - 24.605 For instance, any debt that the authority had undertaken.

05:20 - 26.941 Bonds added that the debt it issued.

05:20 - 29.944 So it's not a it's not a free lunch.

05:20 - 31.178 Council.

05:20 - 34.181 Yes, I might I mean, your reading of,

05:20 - 39.954 5622 A is inconsistent with the court's

05:20 - 44.825 reading of 5622 A and it's, internally inconsistent.

05:20 - 47.628 The court

05:20 - 51.065 said that proper authorities refers

05:20 - 55.869 to as in this situation, the water authority br.

05:20 - 57.137 BR br.

05:20 - 01.242 And so and so as I read this statute

05:21 - 04.678 and I read Burke's interpretation of it, yes.

05:21 - 08.382 The city wishes to acquire that property, the,

05:21 - 12.886 the assets they have to present a resolution to the board.

05:21 - 15.489 The board of the authority

05:21 - 17.992 and the

05:21 - 21.829 board of the authority has to act on it.

05:21 - 26.166 If they approve it, then it's transferred.

05:21 - 29.803 As long as the city takes on the, indebtedness.

05:21 - 33.040 And if they don't approve it, there's no transfer,

05:21 - 36.210 Your Honor.

05:21 - 39.213 I'll I'll answer it in a couple of different ways.

05:21 - 41.815 The Burke case was thoroughly

05:21 - 44.818 analyzed by the court below.

05:21 - 46.620 It disagreed with it.

05:21 - 46.987 Okay.

05:21 - 51.792 And so, you know, they they relied one of a lot of their own jurisprudence.

05:21 - 55.729 I mean, I'm reading, 5622

05:21 - 58.932 a, on its face, I think it shows what it says.

05:21 - 02.970 If you read it in conjunction with the other provisions of the act,

05:22 - 07.941 the definition of the term authority, becomes, very clear.

05:22 - 13.080 Look at look at 5622 B and its use of the word authority.

05:22 - 16.950 I just don't,

05:22 - 19.953 Your Honor, your reading of this,

05:22 - 24.291 ignores the fact that there is some

05:22 - 29.997 passage of a resolution that has to take place

05:22 - 35.569 by a proper authority, and it's that term is used elsewhere in the statute.

05:22 - 40.607 It seems to me that it is applying Your Honor authority resolution,

05:22 - 43.777 the phrase that's used as resolution or ordinance

05:22 - 48.382 resolution or ordinance is used multiple times in the statute

05:22 - 51.919 to refer to the municipality, not to the authority.

05:22 - 58.425 So, for instance, in 5605, which talks about an amendment

05:22 - 03.364 to the articles, the, the, and again, this is something that's important

05:23 - 08.535 because while the authority has the ability to amend its articles,

05:23 - 12.706 it must be approved by resolution

05:23 - 16.377 or ordinance of the original municipality.

05:23 - 20.647 Similarly, in

05:23 - 22.916 has has there been any amendments

05:23 - 27.421 since the Joint Board was created, and if so, whose was it?

05:23 - 29.289 It was it approved by? Oh, what entity

05:23 - 33.327 have there been amendments to the that you just said

05:23 - 36.397 the authority has the ability to amend its its articles of incorporation.

05:23 - 37.297 That's right.

05:23 - 42.102 I'm not I'm not aware of anything in the record that that's that's been the case.

05:23 - 46.140 I can get back to your I but but the statute itself

05:23 - 49.410 5605 requires a resolution

05:23 - 53.046 or ordinance to approve the amend the resolution

05:23 - 57.184 or ordinance by the municipal authority to Justice Donahue's question.

05:23 - 01.388 That's why the use of the phrase ordinance another another instance

05:24 - 04.391 where ordinance or resolution is used is

05:24 - 07.394 in 5619

05:24 - 09.496 Council for the authority

05:24 - 13.367 had said that 5619 and cited to the court

05:24 - 17.137 was a termination of the authority and that it could be done unilaterally.

05:24 - 20.040 That's not that's not entirely accurate.

05:24 - 21.608 There must be a certificate.

05:24 - 25.879 That's that's,

05:24 - 28.615 by the municipality where the certificate

05:24 - 32.386 is approved by the municipality by its ordinance or resolution.

05:24 - 37.191 So again, in 5619, the word ordinance or resolution is used.

05:24 - 40.461 And 5622 uses

05:24 - 43.931 resolution or ordinance which is the same language.

05:24 - 48.869 So when you look at that phrase, it only applies to two municipalities

05:24 - 52.906 throughout the statute, not to the authority itself, because it's,

05:24 - 57.644 as I believe, as the court below, recognized ordinances or nothing.

05:24 - 01.248 There's nothing in the Municipalities Act that allows an authority

05:25 - 04.518 to establish an ordinance that that phrases it in there.

05:25 - 08.489 It's only used in conjunction with municipalities council.

05:25 - 13.360 At a moment ago you read an excerpt from 5622 a

05:25 - 17.798 referencing

05:25 - 19.600 the municipality,

05:25 - 22.402 if a project established, etc., etc.

05:25 - 25.606 it's a character which the municipality has power

05:25 - 28.909 to establish, maintain or operate.

05:25 - 33.280 So I guess we can agree that the municipality had the power to establish

05:25 - 34.948 cause it did.

05:25 - 38.185 But, maintain maintaining and operating.

05:25 - 38.919 Those are,

05:25 - 41.989 those are

05:25 - 45.259 largely outside the city of Chester at this point.

05:25 - 47.027 Right? I mean, it does.

05:25 - 49.997 Do you maintain some sort of extraterritorial,

05:25 - 51.932 in here?

05:25 - 52.699 Absolutely.

05:25 - 55.669 Are tried any municipalities authorities act itself?

05:25 - 59.606 First you start with, and when you look at the powers

05:25 - 05.379 that are granted to authorities in 56 07D section D,

05:26 - 08.882 in sections

05:26 - 12.419 18 and 19, answer this question

05:26 - 16.323 to first of all, it says to contract with any municipality corporation.

05:26 - 19.326 These are the powers granted to an authority,

05:26 - 23.030 with any municipality, corporation or public authority of this

05:26 - 27.467 or adjoining state on terms that the authority shall deem proper.

05:26 - 31.004 So this allows you to go even outside the Commonwealth

05:26 - 33.540 with whatever project you have.

05:26 - 39.079 And section 19, which is right after that, talk specifically about doing water,

05:26 - 44.718 water and other services to municipalities that are not members of the authority

05:26 - 49.022 or to and for the Commonwealth municipalities, etc.

05:26 - 54.861 so that specifically references that 56

05:26 - 58.799 15 talks

05:26 - 02.669 about the power of eminent domain, and it specifically

05:27 - 07.140 allows the municipality to exercise eminent domain outside of its boundaries.

05:27 - 11.278 So when you read those, those sections in conjunction,

05:27 - 15.115 separate and apart from any kind of having, having to create

05:27 - 18.518 any kind of joint authority, because the authorities

05:27 - 23.256 have expanded outside the range, the municipalities authorities at Pacific

05:27 - 27.628 specifically permitted any kind of authority that an originally,

05:27 - 30.797 municipality established to go outside its boundaries.

05:27 - 34.067 And it makes sense because other municipalities

05:27 - 37.037 or other people in in the outside areas

05:27 - 40.674 outside the counties may have wanted to just pay a fee to join.

05:27 - 43.477 They didn't want to have to establish their own authority.

05:27 - 46.046 There's no in no indication in the record.

05:27 - 50.617 Nobody's ever said that Chester County wanted to join this municipality

05:27 - 54.154 or that or that Delaware County wanted to join this.

05:27 - 54.688 Excuse me.

05:27 - 58.058 Join this authority, or that Chester County wanted to join this authority.

05:27 - 02.863 It by the way, if they did, it would have had to have been approved

05:28 - 07.901 under the statute by the original air and cooperating a municipality,

05:28 - 11.605 because that is how this is structured.

05:28 - 17.377 The original municipality is given, that is given the license

05:28 - 21.481 by the Commonwealth to establish authority to do big public projects.

05:28 - 26.920 And it has it has the ability to let the authority go run its business.

05:28 - 30.857 But all the key times in the life cycle of that authority,

05:28 - 34.428 when you're going to amend it, when you're going to bring in new members,

05:28 - 38.598 when you want to dissolve it, it all has to be approved

05:28 - 42.069 by the incorporating municipality, by the originator.

05:28 - 44.104 They started the authority.

05:28 - 45.739 They can initiate authority.

05:28 - 47.307 That's always been the case.

05:28 - 51.445 There's nothing new in 56, eight, 856, ten

05:28 - 55.482 a one goes solely to a governance issue.

05:28 - 56.349 That's it.

05:28 - 00.020 It didn't make any changes in any of these other parts of the statute.

05:29 - 03.490 It didn't make any changes to anything else that was going to say,

05:29 - 06.593 oh, we're going to all of a sudden say we can

05:29 - 12.199 we can have a joint authority by implication or legislative fiat.

05:29 - 14.234 That's what the dissent said.

05:29 - 15.502 It doesn't make any sense

05:29 - 18.505 if you talk about what's the rule, statutory construction,

05:29 - 22.743 they would say, well, if you can define what the legislative intended

05:29 - 27.948 by one section to mean that, that we're rewriting all of the fundamental

05:29 - 31.718 balance of the role of the incorporating a municipality,

05:29 - 33.954 then there's no guardrails to that.

05:29 - 36.857 That's not that can't be a real statutory interpretation.

05:29 - 38.759 That just means you get to make it up as you go along.

05:29 - 41.328 And this court I've sat through two days of your arguments.

05:29 - 42.896 No way does this court do that.

05:29 - 46.533 I, I will, see my time.

05:29 - 48.935 Are there any further questions?

05:29 - 50.670 All right. Thank you very much, Mr.

05:29 - 50.937 Hoyt.

05:29 - 51.838 Let's hear from Mr.

05:29 - 54.841 Withers.

05:29 - 56.610 Good afternoon, Madam Justice.

05:29 - 59.613 Madam Chief Justice Todd, honorable justice of this court.

05:29 - 00.580 May it please the court.

05:30 - 03.550 Scott Withers of Lamb McClellan, on behalf of the appellate

05:30 - 04.985 Aqua Pennsylvania, Inc..

05:30 - 08.155 I'm joined at counsel table by my law partner, John Cunningham.

05:30 - 10.757 And also on our brief is our other partner, Joel Frank.

05:30 - 14.027 I'm mindful that this court doesn't want repetitive arguments

05:30 - 15.662 from from the parties.

05:30 - 19.399 And I take this opportunity to tell the court that we absolutely agree

05:30 - 24.771 100% with the arguments that were set forth by, my able counsel colleague, Mr.

05:30 - 27.774 White, with regard to act 73 and Ma

05:30 - 31.978 arc was a brief in this court

05:30 - 34.714 fully addresses all those arguments and we would rely on that brief.

05:30 - 36.716 I will briefly just just one thing that Mr.

05:30 - 41.555 White did not the briefs filed by the appellants, Chester County

05:30 - 46.193 in the CWA, contain multiple speculative arguments, unsupported by the record,

05:30 - 50.530 regarding the effect that an affirmative by the order of the Commonwealth Court,

05:30 - 55.735 by this court would unnecessarily have on would supposedly have on CWA ratepayers

05:30 - 59.039 and CWA and the county allege

05:30 - 04.377 that there's going to be some terrible rate effect on the ratepayers

05:31 - 09.850 and the service people who have service from CWA by this decision.

05:31 - 12.219 And I just want to point out to this court

05:31 - 15.222 that rates have nothing to do with this case.

05:31 - 19.759 You heard it earlier today, a case in which I'm also co-counsel on Mr.

05:31 - 22.062 Providence with Mr. Politesse.

05:31 - 24.064 You guys have already heard about rates

05:31 - 27.234 and the importance of those in in it further proceedings in front of the PUC.

05:31 - 30.270 Rates have nothing to do with this case,

05:31 - 36.042 and are not part of any reason to reverse or affirm the Commonwealth Court.

05:31 - 40.380 We would simply request that

05:31 - 43.950 this court, for the reasons set forth in the briefs of the city

05:31 - 47.187 and Aqua, affirm

05:31 - 48.889 the order of the Commonwealth Court.

05:31 - 49.823 Thank you, Your Honor.

05:31 - 50.357 Thank you.

05:31 - 53.126 All right. Does anyone have any questions for Mr. Withers?

05:31 - 56.930 No. You win the award for the shortest argument this session.

05:31 - 58.798 Thank you,

05:31 - 01.801 Miss Hall.

05:32 - 06.139 Good afternoon.

05:32 - 07.340 May it please the court.

05:32 - 10.343 Candace Hall, on behalf of the County of Delaware,

05:32 - 14.814 the county has specifically not taken a position

05:32 - 18.752 on whether 5622 requires

05:32 - 23.890 the approval of the original municipality, the city of Chester, or all three,

05:32 - 28.428 for the return of the assets.

05:32 - 32.966 What it has argued is that the Commonwealth Court

05:32 - 37.504 should be affirmed in holding that the Burke decision,

05:32 - 40.573 did not stand for the proposition

05:32 - 43.710 that section 1556 22

05:32 - 48.181 provides the authority itself with the authority to transfer,

05:32 - 51.618 its property on its own accord.

05:32 - 55.789 And if you look back at the original pleadings

05:32 - 00.860 that started, this litigation in, you'll understand the importance of that.

05:33 - 04.264 This was started with a petition

05:33 - 10.203 by the Water Authority to place its asset into a trust,

05:33 - 15.608 and the terms of that trust would place the assets of the authority

05:33 - 19.212 outside the terms of the Ma

05:33 - 23.450 and prevent any of those municipalities from exercising their rights,

05:33 - 27.520 to the project or the property that's in, in

05:33 - 30.023 in perpetuity.

05:33 - 32.025 Correct? In perpetuity. Correct.

05:33 - 33.526 Your honor, it's tough for me.

05:33 - 36.696 The the initial three trustees were proposed to be

05:33 - 39.966 then members of the board of the authority,

05:33 - 42.969 but the proposal then allowed those trustees

05:33 - 47.741 the power to appoint new trustees, not the municipalities.

05:33 - 52.946 So those three people, then essentially usurped much of the authority,

05:33 - 56.750 of those municipalities, a no, no further

05:33 - 00.053 appointment by the municipal parties themselves was contemplated.

05:34 - 03.289 So how does Delaware County take any position whatsoever with regard

05:34 - 05.225 to whether or not they should have a say

05:34 - 07.460 in the sale of the asset, or taking back the asset?

05:34 - 09.362 In our brief,

05:34 - 12.365 we have not taken a position regarding,

05:34 - 16.503 the interpretation of 56, 22 and 5610.

05:34 - 20.807 Only that the decision cannot be made

05:34 - 24.010 by the board of the authority itself,

05:34 - 28.248 to do what it is proposing to do in the underlying action,

05:34 - 31.584 which is set up a trust, which is to set up the trust.

05:34 - 35.488 And we would argue that this is

05:34 - 39.292 an essential question that is ripe for disposition by the court.

05:34 - 43.129 Now, first, because although the lower court

05:34 - 47.400 referenced that it it needed a hearing to decide, that issue,

05:34 - 51.671 we believe that it does not because it is clear as a matter of law

05:34 - 57.043 that the authority cannot do this, and there's no facts in dispute

05:34 - 00.680 that would change that determination as to whether or not these assets can

05:35 - 02.615 can be moved to a trust.

05:35 - 07.887 And second, it's within, the Commonwealth court's interpretation of,

05:35 - 09.689 the Burke

05:35 - 13.393 decision and the specific issue that the court granted allocator on

05:35 - 18.031 to decide the meaning, and further precedential value of that case

05:35 - 21.067 regarding what an authority itself

05:35 - 24.070 can and cannot do.

05:35 - 27.173 The Powers Council,

05:35 - 30.176 who owns the assets

05:35 - 33.813 of the authority,

05:35 - 35.281 you would know that

05:35 - 39.619 because we're talking about trustees who are transferring assets.

05:35 - 42.589 We which would sort of suggest that

05:35 - 46.159 they own the assets so that they can convey them.

05:35 - 49.229 I mean, who who owns the assets of the authority?

05:35 - 54.734 I believe the authority owns the assets, but its ability

05:35 - 58.471 there is some oversight from the municipalities

05:35 - 01.374 as to what they can do with those assets.

05:36 - 04.511 It is, as was described earlier, that the mayor

05:36 - 07.680 I mean, their title

05:36 - 11.317 is their title to these the assets.

05:36 - 14.220 I mean, 1656

05:36 - 17.524 22 talks about conveying

05:36 - 21.661 by appropriate instrument

05:36 - 25.565 the project to the municipality.

05:36 - 26.933 What's the appropriate instrument?

05:36 - 31.971 Is there a title or something regarding the assets of the municipality

05:36 - 35.208 and the authority?

05:36 - 36.943 Well, there are I believe

05:36 - 39.946 some of these assets were acquired from

05:36 - 44.083 individual property owners over time, easements and acquired by that.

05:36 - 46.219 And by whom? By the authority. By the authority.

05:36 - 47.954 Okay. Yes.

05:36 - 48.955 Can I just follow up?

05:36 - 52.625 Because you just said something that I'm not sure I understand.

05:36 - 57.597 You said that the Delaware County and Chester County have some oversight.

05:36 - 02.101 Yeah, they have some oversight in terms of they

05:37 - 05.838 appoint those people to the board.

05:37 - 06.272 Correct.

05:37 - 10.176 And then they help run the the people of Delaware County or Chester

05:37 - 13.546 County with regard to the ongoing operation of the board.

05:37 - 15.081 Right? Correct.

05:37 - 17.350 So if they have oversight,

05:37 - 19.886 should in Delaware County and Chester County have some.

05:37 - 22.088 I mean, Mr. White said a seat at the table.

05:37 - 24.624 That's what the governance did. It gave them a seat at the table.

05:37 - 28.061 If they have a seat at the table and Delaware County and Chester County

05:37 - 32.799 both have oversight via their appointees, shouldn't they have a say

05:37 - 36.169 in the acquisition of the asset and ultimately the sale of the asset?

05:37 - 38.638 I think

05:37 - 41.841 that is consistent with what we are arguing,

05:37 - 45.778 and specifically our concern here is that I don't think it is.

05:37 - 47.046 I think your co-counsel, Mr.

05:37 - 50.116 White, suggests that the city of Chester should be able to just take it back

05:37 - 51.384 and do it what it wants.

05:37 - 54.087 And the hell with what Chester County and Delaware County want.

05:37 - 56.589 I believe that is Mr. White's position.

05:37 - 01.561 Our position is that specifically with regard to this transfer

05:38 - 04.697 of the assets into the trust, these appointees,

05:38 - 09.802 the the nine of them acting as the board in transferring it,

05:38 - 14.007 are removing the counties or removing

05:38 - 17.377 and the seat at the table, or removing your asset from the oversight

05:38 - 20.380 and are basically making your seat at the table meaningless.

05:38 - 23.883 But my question to you is why do you care?

05:38 - 27.287 Because if Delaware County or Chester County don't have a say in the acquisition

05:38 - 31.758 by Chester of the asset and ultimately the sale by Chester of the asset,

05:38 - 34.294 you're not going to have oversight and you're not going to have any seat

05:38 - 36.095 at the table if they do that, if they're correct.

05:38 - 41.634 We did not agree or disagree with Mr.

05:38 - 47.173 White's position or the Water Authority's position regarding which municipalities

05:38 - 51.144 have the authority to seize back the assets.

05:38 - 55.815 So we are not saying definitively it's only the city of Chester

05:38 - 59.585 that they could take Delaware County's share of this.

05:38 - 04.223 We simply did not take a position on that in the brief 5622 eight

05:39 - 05.358 or do you have one?

05:39 - 08.227 Do you have we do not have one here. Okay.

05:39 - 12.865 We were arguing specifically that the the board

05:39 - 16.202 appointed here cannot go rogue

05:39 - 19.806 beyond its powers to transfer the assets

05:39 - 23.209 outside of the oversight of any of these municipalities

05:39 - 26.779 and into a trust that essentially removes

05:39 - 29.782 public oversight of these assets.

05:39 - 33.019 And so that is the concern of the of Delaware

05:39 - 36.322 County specifically in this I didn't mean to make it adversarial to Mr.

05:39 - 39.158 White. I see you both looking at me. I just wanted to verify that.

05:39 - 39.892 That's all right.

05:39 - 41.928 And we didn't have anywhere else to put you to.

05:39 - 45.098 Said you're not really on their side, is what you're telling us.

05:39 - 48.101 We have a unique position, I believe, Your honor.

05:39 - 48.768 Switzerland.

05:39 - 51.504 Exactly.

05:39 - 54.474 Anything else is help.

05:39 - 56.476 Any other questions?

05:39 - 58.644 All right. Thank you all. Very well argued.

05:39 - 00.146 We'll take it under advisement.

05:40 - 03.149 Thank you. Juice.

05:40 - 05.718 This concludes

05:40 - 08.755 our 2025 spring argument session.

05:40 - 13.459 I would like to thank PCN for playing our session

05:40 - 16.729 as an education tool to the public.

05:40 - 18.831 We really appreciate it.

05:40 - 22.335 I'd like to thank our court crier, Brian Menor, and our person

05:40 - 26.406 Atari Caitlin Gorman, for their outstanding service to the court

05:40 - 31.077 as well as our court security looking out for us, John Evans,

05:40 - 35.715 Gary Shovlin, and Scott Town and of course, the capital Police.

05:40 - 38.985 Mr. Menor, you may adjourn the court.

05:40 - 58.504 And. Be.


Related Video
2025 PIAA Boys 2A Swimming Championships  Day 2 PCN Sports

2025 PIAA Boys 2A Swimming Championships - Day 2, PCN Sports

How Western Pennsylvania Shaped George Washingtons Career

How Western Pennsylvania Shaped George Washington's Career

The Schuylkill Navigation Canal System History  Culture

The Schuylkill Navigation Canal System, History & Culture