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.