00:00 - Good morning everyone.

00:02 - Welcome to this special session of the Supreme Court of Pennsylvania.

00:07 - We are pleased to be here in Luzerne.

00:09 - County as part of the Wilkes-Barre Law and Library.

00:14 - Association's 175th anniversary.

00:18 - The last time our court heard our arguments outside

00:23 - of Philadelphia, Harrisburg or Pittsburgh was in 1981,

00:29 - in Erie County, to resolve nomination challenges

00:33 - for a special congressional election the following month.

00:37 - I note the Chief Justice, Samuel Roberts, was a native of Erie County,

00:43 - so for us to hold a court session

00:46 - in Luzerne County is very special to us.

00:49 - Indeed, as you may know, the Pennsylvania Supreme Court

00:53 - is the oldest appellate court in North America.

00:58 - Our roots date back to William Penn's provincial court of 1684,

01:03 - and our Supreme Court was formally established pursuant

01:07 - to the Pennsylvania Judiciary Act of 1722.

01:12 - In May 2022,

01:15 - we celebrated our 300th anniversary

01:18 - with a special session in Old City Hall in Philadelphia.

01:22 - We justices are very proud of our rich history.

01:26 - Luzerne County also has a rich history.

01:30 - It was created, as I understand it, in 1786,

01:34 - from part of Northumberland County and named for the Chevalier de la Luzerne.

01:40 - French minister to the United States.

01:43 - Wilkes-Barre, your county seat was laid out in 1772

01:48 - and named for two members of the English Parliament,

01:51 - John Wilkes and Isaac Bear, both advocates of American rights.

01:56 - It was incorporated as a borough in 1806,

02:00 - and as a city in 1871.

02:04 - Several judges from Luzerne County

02:06 - have served on the Pennsylvania Supreme Court.

02:10 - These include Justice John Ross, who was admitted to the Luzerne.

02:15 - County bar in 1792

02:19 - and was appointed to our Supreme Court in 1830.

02:23 - Chief Justice George Woodward, who was admitted

02:27 - to the Luzerne County Bar in 1830.

02:30 - He was appointed and later elected to the Pennsylvania Supreme Court in 1852.

02:37 - He served as Chief Justice from September 1863

02:42 - to January 1868.

02:46 - Justice Warren J.

02:47 - Woodward studied law with his uncle, Chief Justice George Woodward,

02:53 - and was admitted to the Luzerne County bar in 1842.

02:57 - He was elected to the Supreme Court in 1874.

03:03 - Chief Justice Benjamin Jones Jr

03:06 - served as Assistant District attorney and then as president judge

03:11 - of the Luzerne County Court of Common Pleas Orphans Court.

03:16 - He was president of the Wilkes-Barre Law and Library Association

03:20 - from 1948 to 1951.

03:24 - Justice Jones was elected to the Supreme Court in 1956,

03:29 - and was Chief Justice of the Supreme Court

03:33 - from 1972 to 1977.

03:37 - He was sworn in here at the Luzerne County Courthouse.

03:41 - Last but not least, our former colleague, Justice Corry

03:45 - I F Stevens, who I believe is with us today, justice Stevens.

03:50 - Welcome.

03:52 - Justice Stevens served

03:54 - in the Pennsylvania House from 1981 to 1988.

04:00 - He was your county district attorney from 1988 to 1991,

04:05 - and then served as a Luzerne County Common Pleas judge

04:09 - from 1992 to 1998.

04:12 - He was elected judge of the Superior Court of Pennsylvania in November 1997,

04:19 - and retained in November 2007.

04:22 - He served as President Judge of the Superior Court

04:26 - from 2011 to 2013.

04:29 - Governor Tom Corbett nominated judge Stevens

04:33 - to serve an interim term as a justice

04:36 - on our Supreme Court in 2013.

04:40 - He now serves as a senior judge on the Superior Court,

04:44 - and it was my pleasure to serve alongside Justice

04:48 - Stevens on our Supreme Court.

04:51 - I would like to also point out another historical event

04:55 - is being celebrated in Luzerne County.

04:58 - The election of your first female

05:01 - president, judge of Luzerne County Court of Common Pleas.

05:05 - So congratulations to president Judge Stephanie Sullivan.

05:09 - Antis.

05:09 - She joins an ever growing list of 17

05:12 - women who now serve as president judges

05:15 - in their respective counties in Pennsylvania.

05:19 - Before the court calls our first case,

05:23 - I would like to briefly remind Council of a few matters of protocol.

05:28 - Appellant's counsel,

05:30 - please approach the podium when your case is called.

05:33 - I will then give a short summary of the case.

05:36 - Please begin by introducing yourself

05:39 - and your co-counsel and identifying the party you represent.

05:44 - The justices are familiar with your cases, so we ask that you avoid

05:48 - any unnecessary recitation of facts or procedural history,

05:53 - and instead focus on the main issues on which we granted review.

05:58 - Counsel may rely on their briefs for particular issues

06:02 - in cases where there are multiple parties represented by separate counsel.

06:07 - Council should not repeat the same arguments as prior counsel.

06:13 - Please try not to interrupt the justices when we are asking you a question.

06:18 - A justice this question is not meant to trip you up.

06:21 - Rather, it indicates there are particular issues we wish to explore further.

06:27 - I remind you that we do not permit rebuttal.

06:30 - Finally, while we have no set time limit for argument, I will advise counsel

06:36 - when the court is satisfied that all of its questions have been answered,

06:40 - and at that time I will ask that you conclude your argument.

06:45 - Greetings. I'm Joseph Cosgrove.

06:47 - I'm a retired judge of the Commonwealth Court of Pennsylvania,

06:50 - as well as the Court of Common Pleas of Luzerne County.

06:53 - I'm honored

06:54 - to provide this commentary on the cases that will be heard by the Supreme Court

06:58 - of Pennsylvania in its special session in the Luzerne County Courthouse.

07:02 - Actually, in the courtroom where I presided many years ago.

07:06 - The first case on the court's schedule is that of honey versus

07:09 - the Lycoming County Office of Voter Services.

07:12 - In this case, the court has before it several questions

07:15 - that deal with the application of two particular statutes.

07:19 - The first of these is the Pennsylvania right to Know law,

07:22 - which generally provides for the disclosure of public records.

07:26 - And the second is the election code, which provides broad parameters

07:29 - in the protection and operation of our elections, both primary and general. It's

07:34 - the intersection of these two statutes which is at issue in this case.

07:39 - This matter began when Heather honey requested copies

07:42 - of what are called cast voter records, or covers,

07:46 - which are pertain to the general election of 2020.

07:50 - She made this request under the Right to Know law,

07:54 - and Lycoming County voters received

07:56 - paper ballots, which they mark to cast their votes.

07:59 - These paper ballots are

08:00 - then placed in a scanner which records the votes on a USB drive,

08:04 - with the paper ballot themselves being dropped into a black bag,

08:08 - which is sealed and returned to the county offices.

08:11 - Along with the USB drive.

08:14 - The USB drives are then downloaded so that the specific information

08:19 - about the votes that are cast create what are called the covers.

08:24 - This information is stored in a central database,

08:26 - which also includes information from the scanned mail in ballots,

08:30 - provisional ballots, and overseas ballots that are received by the office.

08:35 - The covers are essentially a spreadsheet

08:37 - which mirrored the information contained on the paper ballot.

08:41 - When the county denied the request, Miss Honey

08:44 - then appealed to the Pennsylvania Office of Open Records.

08:48 - This office again declined to allow her to see the covers.

08:53 - She then petitioned the Court of Common Pleas of Lycoming County,

08:56 - which ruled in her favor, and directed that the material be turned over to her.

09:01 - At that point, there were several intervenors

09:03 - which were allowed to participate.

09:05 - Some of them were on Miss Honey's side, with the Secretary

09:08 - of the Commonwealth joining the same position as the county.

09:12 - When the Court of Common Pleas ruled in favor of Miss Honey,

09:15 - the Secretary then appealed to Commonwealth Court.

09:18 - That court, my former court, reversed

09:20 - the county court's decision, with two judges dissenting.

09:24 - Several of the Intervenors who had sided with Miss Honey sought review

09:28 - in the Supreme Court, which agreed to hear this case in October of 2024.

09:33 - The primary issue here is the balance

09:35 - between the Pennsylvania Right to Know law and the election code,

09:40 - similar to the right to know law.

09:41 - The election code provides broad access

09:43 - to governmental records, with some important exceptions.

09:47 - One of the provisions in the code recognizes that records

09:50 - of various county boards of election are public records,

09:53 - but further states that this does not include the contents of ballot boxes,

09:58 - voting machines, and records related to assisting voters.

10:02 - The question then is whether the covers which mirror

10:05 - the information that is on the actual paper ballots.

10:08 - Whether this constitutes quote content of ballot boxes.

10:12 - Close quote.

10:14 - The Secretary of the Commonwealth and the County Voter Services.

10:17 - Office argue that they are for their part.

10:21 - The intervenor appellants argue the opposite.

10:23 - They say this is far too broad a reading of the election code.

10:27 - Their position is that what defines the ballot box does not extend to the data

10:32 - which was recorded on the CVR, thus taking the CVR

10:35 - out of any definition or exception that the election code may provide.

10:40 - Let's listen to the argument.

10:43 - May it please the court.

10:44 - Honorable Chief Justice Todd.

10:46 - Honorable justices of the Pennsylvania Supreme Court.

10:49 - My name is Thomas Breath.

10:50 - I'm here today with my colleague, Thomas King.

10:54 - We're here today representing intervenor appellants.

10:57 - Stroman, Hamm and Peters.

11:01 - Let me start by indicating that the release of cast vote records,

11:05 - as public records, would greatly improve

11:08 - election integrity in the Commonwealth of Pennsylvania.

11:11 - It would increase the transparency, scrutiny,

11:16 - and accountability of public officials and the decisions that they make.

11:21 - This is something that was addressed to Deputy Secretary

11:26 - Jonathan Marks at the trial court level.

11:30 - Deputy Secretary Marks is the, Deputy secretary

11:33 - of Elections and Commissions of the Pennsylvania Department of State.

11:38 - When asked the question about the importance of transparency,

11:42 - Deputy Director Marks indicated,

11:45 - I believe it is extremely important.

11:47 - And again, I certainly have my own opinion

11:51 - about the cast vote record and its usefulness.

11:55 - I know I'm aware of the fact that other states

11:58 - explicitly make it a public record.

12:02 - If I could just interrupt the question here,

12:05 - as I understand it, is not whether it would be helpful

12:08 - or whether it is informative, but rather whether it's permitted.

12:13 - So could you get to that question?

12:15 - Absolutely.

12:16 - There is a, important and obvious distinction

12:20 - between physical ballots and digital copies.

12:25 - Including the cast vote, record, report or spreadsheet that is produced.

12:30 - There has been discussion throughout the briefs of the significance of,

12:35 - why would the General Assembly make the public policy decision to disclose,

12:41 - information or a reproduction

12:44 - of the information that's contained within the physical ballots?

12:48 - But not do not have the physical ballots open to public access.

12:53 - And the answer is very clear.

12:54 - And it's found in the election code and section.

12:59 - 1703 which is,

13:03 - 2520 or 3263.

13:07 - See, it makes it very clear that the actual physical ballots are

13:11 - the best evidence.

13:12 - If there is a recount, if there's an election contest,

13:16 - if there's some kind of challenge alleging fraud or error.

13:21 - The courts don't look to the cast vote records.

13:25 - They preserve throughout the election code

13:28 - the importance and integrity of those actual physical ballots

13:32 - is what's controlling that is different from cast vote records.

13:35 - If I had a digital counsel, can I interrupt?

13:38 - And I may be,

13:40 - infringing on

13:41 - the Chief justice's, suggestion

13:44 - that you move on to a different topic, but I'm sort of intrigued.

13:48 - There are recount provisions.

13:50 - There are provisions that allow, citizens,

13:54 - to challenge, based upon fraud or error.

13:59 - There are specific provisions within the code that allow for,

14:05 - you know, review under those circumstances.

14:08 - What's what's the purpose of looking at the cast vote records?

14:11 - Ask her after an election

14:14 - has been settled, which the purpose.

14:18 - There's a number of purposes. Some.

14:20 - Some as being historic.

14:22 - Taking a look.

14:22 - It can be used by a number of the parties to take a look at different changes

14:27 - in the voting patterns of the residents of the Commonwealth of Pennsylvania

14:31 - down into specific county areas and the precinct areas.

14:34 - District areas.

14:36 - So there's that historic political aspect of looking at it.

14:40 - It's also the information that's on the ballot.

14:43 - You want the information that's on the ballot.

14:46 - We want the information that's contained within a cast record,

14:49 - which is the information that's on the ballot. Correct.

14:51 - Which is which is protected under the code?

14:55 - Correct.

14:55 - I would disagree, respectfully.

14:59 - Justice Daugherty.

15:00 - I'm sorry, Donoghue I apologize.

15:02 - I've been trying to Irish his name.

15:04 - Thank you. Yes.

15:06 - So, it isn't protected.

15:09 - The the 1937 provisions of the election code that are being relied upon here.

15:14 - Talk about there's, you know, the ballot box.

15:17 - Let me deal with the ballot box first

15:20 - at the trial court level.

15:22 - Deputy Secretary Marx and I mentioned him because he is no stranger to this court.

15:27 - He's no stranger to the election process.

15:29 - And the Commonwealth of Pennsylvania, extremely knowledgeable, acknowledged

15:34 - on the stand that the only thing contained within the ballot box

15:37 - ballot boxes are cast ballots, physical cast ballots.

15:41 - The record on that is clear.

15:43 - So it's not an invasion of the ballot box

15:47 - or the contents of the ballot box to ask for cast vote records.

15:51 - So and this is where the lower court, the majority in lower

15:54 - court, relied upon the language of voting machine.

15:57 - In Pennsylvania, the election code is clear

16:01 - when a county implements electronic voting systems,

16:05 - as Luzerne County has, there's no issue of fact in dispute here.

16:10 - Luzerne County has 81 voting precincts.

16:12 - They have election electronic voting systems in each of those.

16:17 - They are given paper ballots.

16:19 - It's run through the electronic voting system,

16:21 - the automatic tab, the scanner, the automatic tabulation.

16:24 - There is a centralized collection of that.

16:26 - And it's download ballot. Yes,

16:30 - I believe.

16:31 - Oh I'm sorry.

16:32 - I may have have to listen to my mind.

16:34 - Lycoming County.

16:36 - So it goes into the Central Election Bureau's,

16:40 - election management system.

16:43 - That is not a voting machine under the election code.

16:46 - The election code expressly says when counties implement that electronic

16:53 - voting system, they are barred from using voting machines.

16:58 - Well, you've jumped from

17:00 - content of the ballot box to whether or not it's a voting machine.

17:04 - Let's stick with contents of the ballot box.

17:08 - Is the content of the ballot

17:12 - a content of the ballot box?

17:13 - No, no, I would respectfully say that's not the that's not the intent.

17:17 - It's not the information that's contained within the document.

17:21 - The content of the ballot box is the actual ballot.

17:25 - And that's why was contains the votes of individuals.

17:28 - It's not the ballot.

17:29 - It's not a piece of paper that's important.

17:32 - It's the content of the ballot.

17:34 - I would protect it.

17:36 - It's the it's the individuals cast vote that's protected.

17:40 - Both are important.

17:42 - And the reason why it's not concerned about important we're concerned about.

17:47 - Are they protected?

17:48 - Are they committed.

17:50 - And when we look at even our Constitution, article

17:54 - seven, section four protects

17:57 - the secrecy of the platform.

18:00 - So a voter knows that when he

18:03 - or she cast the ballot, their vote is super.

18:08 - And if I, if I may,

18:10 - I'm going to I'll answer the question with respect to whether the physical

18:14 - ballots, the the content of the voting

18:18 - or the ballot box is the information.

18:21 - It's it the more important than the

18:24 - in the real intent behind,

18:28 - protecting

18:29 - the content of the ballot box is the physical ballot.

18:32 - And here's why.

18:33 - That's why it's tied to recounts of things

18:36 - physical ballots versus,

18:39 - a digital image.

18:41 - If I have ballot one that physical ballots in the ballot box

18:45 - and I have a digital image, I can shred that up.

18:48 - I can crinkle it up, I can shred, I could do anything to it.

18:52 - That doesn't impact the integrity of the physical ballot.

18:57 - It may be wasting paper, but that's the intent behind saying

19:00 - you can't have access to the physical ballot

19:04 - that is contained within the integrity secrecy.

19:08 - Well, and I and I haven't forgotten, I haven't forgotten I'm trying to there's

19:12 - so that's the importance of protecting that.

19:16 - And that was the intent.

19:17 - And still today is the intent.

19:19 - And you know that when you look at the

19:23 - article not or article 11 A,

19:26 - it refers when it talks about a recount and a challenge.

19:29 - It refers you back to 1701, which is the section

19:34 - that deals with ballot boxes in paper ballots.

19:38 - So it's tied to that.

19:40 - It doesn't refer you to 1702, which deals with voting machines.

19:44 - So simply saying that when they say

19:46 - when the General Assembly said content of the ballot box, box back

19:49 - when we actually had ballot boxes or back when we actually had machines.

19:52 - The purpose of the General Assembly in saying content

19:56 - was to preserve the actual physical ballot for a future recount.

19:59 - Correct. That's that's your argument.

20:01 - Now, whether whether we agree that that's what content of the ballot box means.

20:07 - That's that's the issue. Correct.

20:08 - And when you think about it,

20:09 - the actual physical ballot tells you a lot more than a digital

20:13 - copy could ever tell you.

20:14 - But are you saying that that that.

20:17 - Are you saying that,

20:20 - counties can make

20:23 - digital copies of all the ballots and email them to the public

20:28 - as long as they're as long as they don't give the public the actual ballot?

20:32 - Well, that's

20:35 - the cast vote records.

20:36 - We have digital images of the General General Assembly

20:38 - talking about the cast vote record.

20:40 - I'm saying I'm saying let's, let's let's fast forward in technology

20:44 - in this world that we're living in right now.

20:45 - Let's say not only is the scanner that's reading

20:49 - the optical, you know, the votes.

20:52 - Not only is the scanner actually tabulating

20:55 - and sending them to the central computer or putting them on a thumb drive

20:57 - to be loaded in the central computer, but it's imaging

21:00 - every single individual ballot.

21:02 - Can I walk in to voter services and demand to see I don't want the original.

21:08 - I don't want the original.

21:09 - I just want to see the digital copies of every single ballot.

21:12 - Are you saying that because you're only asking

21:14 - for the digital copies, contents of the ballot box don't apply?

21:17 - Correct.

21:18 - So. Okay.

21:19 - And the General Assembly expressly provides for that

21:22 - when it talks about, Mail-In and absentee ballots.

21:26 - And that's the private case.

21:27 - That's that's kind of on hold in front of this court, from the Commonwealth Court.

21:31 - That was the issue there.

21:32 - And the court unanimously said and Justice.

21:37 - Judge Wolf wrote a concurring opinion

21:39 - in which he questioned honey, he didn't participate in the honey decision.

21:43 - It it expressly said the General Assembly said those are public records

21:48 - and the ballots are the digital images

21:50 - of the ballots, or is the law say digital images of the ballots are public record.

21:56 - Two sections, Your Honor.

21:57 - Let me flip the.

22:03 - It's, 25.

22:05 - 31406.9

22:09 - and 25.

22:10 - Section 3150.17.

22:13 - It's the decision on the, private

22:16 - versus Erie County Board of Elections.

22:19 - That is a unanimous decision

22:21 - post Heather honey decision.

22:25 - And is on hold.

22:27 - Was three cases that are kind of related here.

22:29 - There's this the

22:31 - the Stroman intervenor cases before the court now Jeffrey Strowman versus.

22:35 - Lycoming County Office of Voter Services, which is also on hold here.

22:39 - That deals with the in-person.

22:41 - So I just don't need to be disrespectful.

22:45 - The chief justice if I haven't forgotten you,

22:47 - and I'd like to come back to you on the issue of privacy.

22:49 - Madam speaker, just so the,

22:53 - the question regarding privacy, and it's obviously extremely important issue,

22:57 - and one that, there should be discussion on the answer to the question

23:02 - is that before a voting system, electronic voting system is approved

23:06 - in the Commonwealth of Pennsylvania,

23:08 - it must go through federal inspection as well as state inspection.

23:12 - Once again, Jonathan Marks at the trial level,

23:15 - who participated in the inspection process at the federal and state level,

23:22 - testified.

23:24 - And I apologize. I don't have the sites.

23:25 - And they weren't they weren't in the briefs, but it's in the record.

23:28 - His testimony, it's around, page 408 of 430 a, his testimony.

23:33 - So there he testified that one of the fundamental issues

23:38 - that the federal evaluation system

23:42 - checks is privacy.

23:45 - He has the full report from the Commonwealth of Pennsylvania.

23:48 - He the testimony directly addresses the issue of privacy.

23:52 - That issue was raised at the trial court.

23:55 - And actually,

23:57 - the trial court judge raised the question with respect to the randomization

24:01 - on the spreadsheet of the ballots and whether you could somehow

24:06 - if you stood outside a voting precinct and you saw everybody and put them in

24:10 - order and said, Tom came third and and here's the cast vote records that

24:15 - it cannot breach the privacy protections under the Pennsylvania Constitution.

24:20 - The vendor concerns when there are a lot of voters.

24:24 - What can I just add?

24:26 - What about in a precinct where only a dozen people voted

24:31 - in that particular election?

24:33 - Does that same argument hold true?

24:35 - Yes. It doesn't change the it doesn't change the outcome of that,

24:40 - that process, the randomization protects it as much as you can protect it.

24:44 - When there's only 12 people.

24:45 - If 12 people come in and everybody votes for one candidate.

24:50 - Is that a breach of our constitution?

24:51 - No. I was assert that it's not a breach of the.

24:55 - I'm sorry.

24:56 - Thank you.

24:58 - You said in your opening that this is about election integrity.

25:02 - The right to know is created so that official government

25:07 - actions are transparent.

25:09 - Share with me how the right to know the law or knowing the contents of a ballot

25:16 - in in any way

25:19 - points towards official governmental conduct,

25:22 - other than knowing how an individual in a particular precinct voted

25:27 - and who they voted for. Yep.

25:30 - The how I would answer that question is

25:34 - the opposite.

25:35 - If none of this information is available, because if if the decision

25:39 - is that anything goes that goes through an electronic voting system is deemed

25:43 - to have gone through a voting machine and is not open to the public.

25:47 - Not only do you lose the cast vote records,

25:50 - you lose all ballot images because they all go through scanners.

25:54 - You lose the outer envelopes with the signatures and the dates.

25:59 - You lose a significant amount of information

26:02 - that the General Assembly has expressly said should be public.

26:07 - So the official

26:09 - misconduct that you are alleging under the right to know that, to my mind,

26:13 - is that I understand you're talking about you want to know how people vote,

26:17 - but the right to know laws specifically target the governmental cargo, right?

26:21 - I here.

26:23 - I'm failing to see how your desire to know

26:27 - how someone votes in Lycoming County proves any official misconduct.

26:31 - Yeah.

26:32 - Just thought you I guess I'll.

26:34 - It's not that we want to know.

26:35 - Or the appellants want to know how people voted.

26:38 - We want to know how the elected the electronic voting system tabulated

26:44 - the ballot.

26:44 - There have been cases in the Commonwealth court system as recently as I believe

26:49 - the last two election cycles where the software has malfunctioned

26:53 - and an individual has marked Ecbs showed that them because

26:59 - you have the ballot image and they're tied together.

27:02 - So and some some CVR have both.

27:06 - But what you do is the cast vote record shows you how each ballot was tabulated.

27:11 - So and it randomizes in a randomized.

27:13 - So there's a randomized code nine 1015 digits

27:17 - that code ties back to the ballot image.

27:21 - Identical codes.

27:22 - So you can look at the, the that on your defeating your point.

27:26 - I mean you're seeing that you seem to be suggesting

27:27 - to the court that you're not interested in who voted in any particular way,

27:32 - but now you're saying it ties back to the ballot.

27:34 - So there's a way to identify whether or not this particular person justice worked,

27:38 - or one of the other justices voted for your particular candidate.

27:41 - Yeah, there's no way to when you look at the ballot image.

27:44 - But under Pennsylvania law, it's prohibited from having any manner

27:47 - of identifying the person that cast that ballot once that once

27:51 - that ballots run through the scanner, once that, privacy envelope was opened up,

27:56 - once the the, you know, absentee application comes in, it's over.

28:00 - You cannot tie it to anyone.

28:02 - The the purpose behind this is in the interest

28:05 - that we're trying to protect is it's a way of auditing the election,

28:09 - if you would a term to make sure that the electronic voting system

28:14 - is properly registering, tallying the votes

28:18 - based upon what is actually on the ballots.

28:22 - Your answer is you can't you can't file a challenge

28:24 - unless you look at the ballots to see if there's any basis to challenge.

28:29 - You have to have facts. Yeah. Yeah.

28:30 - You know, just just the challenging of the election,

28:32 - which requires

28:33 - a certain process at the handle saying that there is fraud or something

28:37 - like that, you would need to have access to what is public,

28:40 - so you can ascertain whether there is any basis to make a challenge.

28:43 - That's absolutely one of the purposes behind I can I

28:46 - but I take you back to the sections you cited to me, certainly,

28:49 - because I asked you a question about how the scanned images

28:53 - of the ballots in the ballot box are public.

28:57 - You said the General Assembly says they are.

28:59 - You say to me to 31, 46.9 and 3150.17

29:05 - vote one of those deals with absentee ballots.

29:09 - The other one deals with mail in ballots.

29:11 - I'm talk.

29:11 - I asked you about ballots in the ballot box when people

29:14 - go and vote in person and they scan their ballot into a machine.

29:18 - Those sections don't apply there.

29:21 - Correct. They don't.

29:22 - So where did the General Assembly say ballots

29:25 - in the ballot box are public?

29:28 - Just just so long as they're not the originals.

29:31 - They haven't expressly said that. Okay.

29:33 - But they ask you. I have a question.

29:37 - I ask you that question.

29:38 - And you pointed me to two sections that don't apply.

29:40 - Well, no.

29:41 - With respect to in-person ballots.

29:44 - That's why there is no express.

29:46 - We're talking about in-person ballots.

29:47 - We're not talking about absentee ballots. We're not talking about mail in ballots.

29:50 - We are talking about in-person ballots that people fill out.

29:52 - The little circles that I used to fill out when I was taking tests in high school.

29:55 - Throw them through the scanner, and they drop into a bag

29:59 - that is later locked and sent somewhere along with the thumb drives.

30:04 - That's what we're talking about. Yeah.

30:05 - The General Assembly has not expressly

30:06 - said that in-person ballot images are public documents.

30:09 - They need not

30:11 - under the Right to Know Act.

30:13 - It's not our burden to have to establish that.

30:16 - The General General Assembly expressly said that these records are public.

30:21 - I completely agree with you, but that's why we're here.

30:24 - The question is, did they say and that's the question here.

30:28 - It's not this.

30:28 - This isn't a question about why you want why you respectfully to my colleagues,

30:32 - you know the right to know.

30:33 - Law doesn't require you to prove why you want the information.

30:35 - It's either public, it or it isn't.

30:38 - The question we're here simply is when the election code says,

30:41 - except for the contents of the ballot box, does that include

30:45 - not only the actual ballots, which you concede it does?

30:49 - Does it also include digital images of those ballots,

30:54 - and also does it include the information on those ballots?

30:58 - That's the question that's in front of us.

31:00 - So it's a pure statutory construction case.

31:01 - That's correct.

31:02 - And I don't think in 1937 I'll state the obvious in 1937,

31:06 - when that was, the General Assembly passed that and they had no idea

31:10 - they had absolutely no concept of, you know, the,

31:15 - the electronic voting system and how we would maintain records.

31:18 - Their concern was and it is still the concern today is

31:22 - that is the best evidence of the intent of the elector

31:27 - is the physical ballot that is maintained in the ballot box.

31:31 - It's it's the ballot box.

31:33 - So you're asking us to pardon my interruption?

31:36 - I'm just trying to move this along. You're asking us to say

31:39 - this election code has been

31:41 - amended multiple times, most recently at 77.

31:44 - And all these other things that happened,

31:48 - we should look at, because this section that we're talking about today

31:51 - has never been amended since it was originally passed in 1939 or 1937.

31:55 - We should look to the terms that were used when the statute was created in 1937

32:01 - or 39 and say, what did the General Assembly intend when they met?

32:06 - Content out of the ballot box then, and content

32:09 - of the machine that that's what you think we should do?

32:13 - Correct.

32:13 - And we will respectfully assert that the the intent of the General Assembly

32:18 - was to protect the integrity of the ballot box, the physical ballots,

32:25 - and the physical voting machines, because at that time

32:29 - and the whole way up through, you know, let's 1980,

32:34 - when there was an election

32:35 - challenge, whether there was whether there was a recount,

32:39 - how they resolve that issue as they went and got the physical ballots,

32:43 - or they went and got the physical voting machines were impounded,

32:47 - absolutely impounded, sequestered.

32:49 - And they looked at those they examined those.

32:52 - It has nothing to do with the present day.

32:54 - The present day.

32:56 - You're going to do the same process,

32:58 - take out the election machines because they're not there.

33:00 - But the same process is in place.

33:02 - If you want to take a look at what if there is a dispute,

33:06 - whatever the dispute is, a recount or whatever.

33:08 - We had a recent recount in the Commonwealth of Pennsylvania.

33:12 - They didn't go in and go into an electronic voting system

33:17 - and pull data out of it, or the central, tabulation at the Office of Voter Records.

33:22 - They switched the electronic voting systems, so they changed. So

33:28 - the mail on an absentee go through high speed

33:31 - voting scanners, usually the precinct of the low speed.

33:35 - So when there is a recount, they switch the mail in

33:39 - and absentee or put through the precinct scanners.

33:42 - Because the the code requires that you have to do it through a different thing.

33:47 - And the in-person go through the high speed scanners.

33:50 - That's the check.

33:52 - They really don't care about the cast vote.

33:54 - Richardson will care about the digital copies.

33:56 - That's a historic protection.

33:58 - That's a failsafe in the worst case scenario, that somehow

34:02 - you've lost all of the hard copies and you're unable

34:06 - to do the process of re running them through the scanners.

34:09 - So that's really the distinction here that separates the terminology

34:15 - from 1937 voting machines isn't applicable any longer.

34:19 - In the Commonwealth of Pennsylvania, ballot boxes is even the the Commonwealth

34:24 - through Deputy Secretary Marks, acknowledges the only thing in the ballot

34:29 - boxes are hard copy cast ballots.

34:33 - Well, that's true.

34:34 - That's true for the counties that use the scanning machines.

34:36 - It's not true for the counties that use the, the touchscreens.

34:43 - There's a different there's a

34:44 - different process for the touchscreens or a ballot box for the touchscreens.

34:48 - They have to produce those touchscreens, have to produce every,

34:52 - every elector has to have a hard copy.

34:54 - So yes, the touchscreen ones are to produce a hard ballot.

34:58 - And that hard ballot is to be checked by the elect door.

35:02 - And then it goes in through.

35:04 - I'm not sure if it goes through a scanner.

35:05 - It goes into a ballot box.

35:07 - In that print out from the touch screen is the ballot that is preserved.

35:12 - That is the physical ballot.

35:13 - So it's a difference in the mechanism of marking your ballot.

35:17 - Whereas if you're provided a paper ballot

35:20 - you mark it as the elector hand market.

35:23 - Whereas if you're using a touchscreen, the printer

35:26 - from the touchscreen generates the ballot, it fills the circles.

35:31 - And for you, if you were to look at that and look at your touchscreen

35:34 - to make sure that the ballot generated

35:37 - through that touchscreen is accurate

35:40 - to what you entered into the touchscreen, and then it goes into the ballot box.

35:45 - So can I get back to a question I asked earlier?

35:47 - Because I'm I'm just started challenged by the distinction

35:51 - you're trying to make under any circumstance.

35:54 - The purpose of protecting the ballot is to protect

35:59 - the information that is entered on the ballot.

36:03 - I mean, the, the, the the focus is on preserving

36:08 - the decision of a voter that's reflected on the ballot.

36:14 - It has nothing to do with it's physical

36:19 - or nonphysical, existence.

36:22 - The the protection is for the information contained on the ballot.

36:28 - Is it not?

36:30 - It is, but the protection.

36:33 - I do answer it this way.

36:35 - The protection that is afforded those, physical cast

36:39 - ballots is not a protection from disclosure.

36:43 - That's not the danger.

36:44 - The protection is preserving the integrity of those physical ballots

36:49 - and the information that's contained on those physical ballots as the best ever.

36:53 - The evidence.

36:54 - If there is the need for a prosecution, and I'll refer the court to,

37:01 - sorry if I get my glasses back on,

37:06 - Section, 25.

37:08 - Verse 30 to 63.

37:11 - See it.

37:13 - Talk specifically about the evidence,

37:17 - that is to be preserved by the Court of Common Pleas.

37:20 - If there is a determination that there has been some kind of error

37:24 - or fraud committed, and that is to preserve

37:28 - not the digital copies, but to actually preserve the physical ballots.

37:33 - So you're right, there is great protections afforded to that.

37:37 - But it's not.

37:38 - The intent of the protection is not to protect it from disclosure.

37:43 - It's the exact opposite.

37:44 - It's it's to preserve it so that if needed, there is disclosure.

37:50 - And it's done.

37:50 - So you can evaluate a number of things which you can evaluate on like

37:55 - a digital copy.

37:56 - I can't determine the quality of the paper.

38:00 - All of these ballots are printed on specific paper.

38:03 - I can't determine whether the, the voter, whether there's a crimp in it

38:07 - because the voter pressed hard

38:08 - or whether it's outside the lines or whether it was laser place.

38:12 - But always the ultimate focus is to determine

38:15 - the information contained there on.

38:19 - Correct, correct, correct.

38:21 - So if that information is created

38:26 - instantaneously in a different format,

38:29 - why is that information not also protected?

38:34 - Because there's no harm to disclosing that information.

38:36 - The disclosure of that information,

38:38 - whether it's in the form of a cast vote record or what's in the form of digital

38:41 - copies of it, is irrelevant to the court's determination as to whether there

38:46 - whether there's a recount, who was ultimately the winner

38:49 - or whether there was error or fraud, but that that runs,

38:53 - against the protection of the Constitution

38:58 - to the secrets, the protection of the secrecy of the ballot.

39:02 - And you're saying there is no violation, there's no,

39:06 - I don't know if you're saying there's no protection

39:10 - accorded to the secrecy of the ballots, or there's no way

39:13 - that the secrecy of the ballots is violated by what you're suggesting.

39:19 - In the Commonwealth of Pennsylvania, there's

39:21 - no violations of the secrecy of the ballot in some states.

39:24 - And we've reference this in our brief.

39:27 - And I've quoted, Jonathan Marks talking about other cast vote records.

39:30 - There are states, North Carolina, I think is an example

39:34 - where they have not released, the ballot images.

39:38 - And the reason why, as in North Carolina, as I understand it, there is,

39:43 - there is a code on the ballot that ties directly back to the actual letter.

39:49 - And that's intended to be if there is an issue of fraud,

39:52 - they can pull it out of the system

39:54 - basically uncounted, if you would in Pennsylvania.

39:58 - We don't have that in Pennsylvania.

40:00 - There are no it's actually if you you have to discard it, it spoils the ballot.

40:06 - If there's any identifying marks on the ballot that would enable you

40:10 - to trace it back to an elector, it spoils that ballot. So.

40:15 - Well, that's true for mailings and and absentees.

40:18 - That's not necessarily true for scanners.

40:21 - It is the trial court as a matter of fact, make a finding in this case

40:27 - that, secrecy of the voter was not an issue. Yes.

40:33 - Yeah.

40:34 - Could you elaborate on the basis upon which he made that finding?

40:38 - Correct.

40:39 - There was there was extensive evidence placed into the trial court record.

40:44 - Namely through,

40:45 - the testimony of Jonathan Marks, but also through director, Lehman, testified.

40:50 - And his initial concern was, that the code

40:55 - that was assigned to the, CVR spreadsheet,

40:59 - somehow you could trace that back if you had additional information.

41:03 - And there was extensive discussion on the record

41:06 - and testimony, including the testimony of the vetting process

41:09 - for the Dominion system to be approved at the federal level and the state level.

41:14 - But also, there was multiple days of hearings at the trial court.

41:19 - The judge asked, with the concern of counsel, that

41:22 - the vendor asked the answer to that question.

41:26 - And they were provided an opportunity.

41:28 - The vendor came back and said, absolutely not.

41:29 - These this randomization of these codes.

41:33 - There is no way you're able to trace it back to the individual voter.

41:37 - And if you were, let's assume that that

41:39 - what about in a county where there's six voters and a precinct,

41:45 - if there's six voters

41:46 - and you have six random codes and one person doesn't

41:51 - vote like the other six, it's still not violating the privacy.

41:55 - If all six.

41:56 - But you're in that situation no matter what.

41:58 - And the same thing with the, the, the write in ballots,

42:01 - I mean, you can there was a discussion at the trial court level.

42:04 - And the judge brought this up with respect to the handwriting.

42:07 - And if I could see that, well,

42:10 - that's today that's the current system.

42:12 - You could do that.

42:13 - So I understand it's a very important issue.

42:17 - My clients take it seriously, not only from a constitutional standpoint.

42:22 - We are very, very active in election law.

42:24 - The privacy of the ballot is sacrosanct.

42:27 - But this has been I, I don't want to use the term vetted.

42:30 - This has been vetted.

42:31 - This issue has been looked at and scrutinized.

42:34 - And there's no definitive indication that anyone is capable of that.

42:41 - Looking at a cash flow record, looking at a ballot cast in Pennsylvania

42:44 - and tracing it back to the elector.

42:46 - If that were the case,

42:49 - the remedy is clear the Secretary of the Commonwealth

42:52 - would have no choice but decertify that system.

42:56 - It violates harbor.

42:58 - It violates the criteria in the Commonwealth.

43:01 - In Pennsylvania. We don't have that here.

43:03 - This case has been going on for a long time,

43:05 - and there's a number of cases that are queued up right along.

43:08 - As this court knows, the Secretary of the Commonwealth has made no such assertion

43:13 - that this system, or any system similar to this should be decertified.

43:17 - So I think that answers the question.

43:19 - If the Secretary of the Commonwealth believes that the

43:23 - these system somehow can violate the privacy provisions

43:26 - of the Pennsylvania Constitution, the Secretary of the Commonwealth

43:29 - needs to step up and say, we must be certified.

43:31 - We'll be right there.

43:33 - We'll be right there saying, absolutely, you should do that.

43:35 - But but in this particular case, the Secretary of the Commonwealth

43:38 - has taken the position that the case vote records are subject to privacy.

43:42 - Why should we provide them with deference, the same deference you're suggesting

43:46 - the Secretary would be given in any other capacity regarding voting cases?

43:50 - Well, the Secretary of the Commonwealth has taken the position that they're

43:53 - the contents of the voting machine.

43:55 - And the contents of the ballot box.

43:57 - It's been the the position of the Secretary of the Commonwealth

43:59 - has taken this kind of changed over over the course of this litigation.

44:07 - The answer to those two questions is no.

44:10 - It's not the contents of a ballot box.

44:12 - It's not the contents of the voting machine.

44:14 - It's data, it's a report.

44:16 - It's a spreadsheet that comes out of an electronic voting system.

44:20 - Ultimately, the answer with respect to privacy is likewise, no, there's

44:23 - no information that's before this court that the court can point to and say,

44:28 - here's the evidence that this somehow violates

44:31 - the constitutional provisions with respect to privacy and voting in Pennsylvania.

44:35 - It's just it's just not there.

44:37 - It's it's legitimate discussion.

44:40 - The record before your before your honor or justices is the exact opposite.

44:45 - Everybody that testified and all the testimony

44:47 - with respect to the privacy issue, the randomization

44:50 - all came to the conclusion that there is no way

44:54 - that anyone with whatever amount of information they have,

44:57 - that the resource is able to trace back the randomized.

45:03 - Why number 14 on a on a spreadsheet, back to an elector.

45:07 - And the same thing with the the battle of image or counsel.

45:11 - Again, what

45:12 - this privacy thing is is certainly, I guess, important.

45:16 - But the precedent if there was a privacy right, there was a of a concern.

45:20 - The precedent of this court in the Commonwealth Court would be

45:24 - notice, would have to be given to all of the potentially impacted voters.

45:28 - They would have to have an opportunity to come in and assert their privacy.

45:31 - Right.

45:31 - Has anybody appeared in this case to assert their privacy right.

45:34 - In these documents? No.

45:36 - No one.

45:37 - Has anybody challenge the statute that we're talking about is unconstitutional.

45:40 - Not no one. Counsel.

45:43 - The Commonwealth Court, in its sort of,

45:46 - maybe penultimate paragraph,

45:50 - made the point.

45:51 - And I think you agree with the first part of it

45:53 - that the ballots themselves are not open to public inspection.

45:57 - You would agree with that, correct?

45:59 - Okay.

46:00 - And and so then they said, but why so so if they aren't

46:04 - open to public inspection, why would the digital equivalent

46:09 - containing the same information be open to public inspection.

46:13 - Because the and they were really just looking

46:15 - at the language of the statute, and relying heavily on the fact

46:20 - that the ballots themselves are not open to public inspection.

46:24 - Correct.

46:25 - The physical ballots are not, the same way as evidence for, you know,

46:30 - a trial is, is kept from, from people tampering with it,

46:34 - the physical ballots, the reason why the public doesn't have access to them

46:38 - is because if there is an election challenge,

46:40 - if there's an allegation of fraud and someone files a petition or er

46:44 - or any kind of scrutiny by the court, they have to look at the integrity

46:48 - of the physical ballots.

46:49 - That's a completely separate issue.

46:51 - Then the digital copies of those.

46:54 - Well, I, I'm not I'm not so sure I mean that that's what their point was.

46:57 - I think it was a much more straightforward

47:01 - statutory, conclusion.

47:04 - If the ballots themselves are not open to public inspection,

47:09 - why would the digital equivalent

47:12 - of those ballots be open to public inspection?

47:16 - Because there's no harm to the function of the court,

47:20 - because the court's function relates to the actual physical ballots.

47:24 - Yeah, but you keep getting back to evidentiary points.

47:28 - It's a more straightforward issue.

47:31 - The statute says the ballots themselves are not open to public inspection.

47:35 - If you stop right there and then ask the question, forget about

47:39 - what the purpose is, what excuse or anything of that nature,

47:43 - if that statement is true, which it is,

47:45 - the ballots themselves are not open to public inspection.

47:49 - Why would the digital equivalent of those ballots be open to public inspection?

47:54 - And I just respectfully take issue with the description of what it is.

47:58 - It doesn't say that the ballots aren't open to public inspection.

48:02 - It says that the contents of the ballot box are not open to.

48:06 - And what by contents of the ballot box.

48:09 - They're not they're not they are not the cast vote record.

48:12 - The Castro record has never been within the ballot box.

48:15 - Anything that comes out of the, electronic voting system,

48:20 - through the central, Election Management system,

48:23 - has never been in the ballot box, nor is it in the ballot box.

48:26 - The only thing that's in the ballot box, the physical records.

48:29 - And the same thing with the voting machine.

48:30 - It's the contents of it's not the information in some other format.

48:36 - It's the contents of you cannot pull out

48:39 - from the ballot box the contents of the ballot box.

48:43 - That doesn't mean you can't go into the Lycoming County.

48:46 - Voter Services and say,

48:48 - print me a spreadsheet, the CVR spreadsheet, because

48:51 - I don't have to touch the ballot box.

48:53 - I don't have to go near the ballot box.

48:54 - I don't have to date what's in the ballot box.

48:56 - I just need to hit a button on it.

48:57 - Using your historical analysis.

49:01 - Certainly when the legislature was talking

49:05 - about context of the ballot boxes, when the statute was first, enacted,

49:13 - it was concerned about the

49:15 - information contained on the ballot.

49:19 - I mean, otherwise, what's the point?

49:21 - I would respect the ballot is nothing

49:23 - other than the reflection of the voters intention.

49:27 - Yeah, I would respectfully disagree with that.

49:30 - It's not that they're concerned with the information that's contained

49:34 - within the within the ballots, the information that the judiciary,

49:39 - with due respect to this is just you're not concerned about

49:42 - who voted for which candidate or which candidate prevails in the election.

49:46 - You're concerned about preserving the evidence that they voted for.

49:51 - No, no, no. Well, it is who they voted for.

49:54 - But once again, you're not concerned about who they voted for.

49:57 - You're concerned about the integrity.

49:59 - And this is why there's such an important election.

50:01 - Integrity is you're concerned about the integrity of the process

50:05 - in making sure that whomever they voted for or didn't

50:08 - vote for, that that evidence is preserved so the court can make

50:12 - an informed determination. Was there fraud?

50:15 - Was there an error?

50:17 - Do we, after doing a recount, who is the,

50:21 - appropriate winner of whatever election you're looking at?

50:24 - That's the purpose of that 1937 statute.

50:27 - It remains the purpose today.

50:29 - I mean, it's still a it's still the fundamental component

50:32 - of our election system.

50:33 - The CVR prove or show fraud.

50:38 - I don't

50:38 - know if necessarily does I mean, ultimately it's information

50:41 - that if you evaluate what you just shared, the purposes to protect against fraud.

50:46 - Well, I'm asking you, what does that document randomize?

50:50 - Ballots?

50:52 - It can show you information which may indicate that there was fraud

50:56 - based upon that information.

50:58 - Before you would be able to prove it, you would have to come back.

51:01 - Correct me.

51:02 - I understand that the spreadsheet

51:05 - is just literally a line as to

51:09 - who was selected by that particular person.

51:12 - How do you alleged fraud when you don't know who's,

51:16 - vote you're looking at?

51:18 - Well, it's

51:18 - broken down into precincts and districts and it can be a county wide statewide.

51:23 - I'm still your premises. Throw it.

51:25 - I'm trying to dissect that.

51:27 - I don't understand an anonymous spreadsheet,

51:31 - how that supports your argument that fraud has been perpetrated.

51:37 - I'm not arguing that that proves it.

51:39 - I'm arguing that it's a piece of information that should be public.

51:42 - So the public has the ability to evaluate for example.

51:45 - But what?

51:46 - Let me know. I'm going to do it. Okay.

51:49 - Now that and that's what I'm saying.

51:51 - The public can take a look at that in your honor.

51:53 - Justice Daugherty and

51:56 - if there are

51:56 - anomalies that let's say that there are,

52:00 - a high percentage of ballots that voted

52:04 - just for the, the, the top, not none of the lower election.

52:09 - So, president, vice president, Senate, things of that nature

52:12 - that could lead you to believe to say, listen, there's an anomaly here

52:16 - that is an extremely large number that didn't vote for any of the down

52:20 - ballot things

52:22 - that could be the basis to come in, file a petition with the court and say,

52:25 - listen, we'd like to physically examine

52:29 - the hard ballots, the ballots in the ballot box

52:31 - to determine was there any fraud involved in this situation.

52:35 - The election code prohibits that.

52:37 - Excuse me?

52:38 - The election code prohibits that specifically, doesn't it?

52:41 - No, I don't believe it. Does.

52:43 - Right there there are no not through a right to.

52:46 - No no no no no. Absolutely not true a right to know.

52:48 - That's the same story. They started off the right to know law.

52:51 - And I think we all understand the right to know law kind of yields

52:54 - where specific laws govern the, the agency requested documents

52:58 - that you're requesting.

52:59 - You've been arguing about the election code.

53:00 - The Justice and Justice Donohue I'm curious.

53:03 - The election code kind of prohibits somebody from getting the actual ballots

53:07 - themselves under our Constitution, doesn't it?

53:10 - No, no, it absolutely does it.

53:12 - You're saying if there's a challenge, you're you're talking about it.

53:14 - I'm talking about you're you're triggering.

53:15 - You're just like you're taking right to know information.

53:17 - You gather from, a governmental entity.

53:21 - You're evaluating that information based upon your evaluation, that information,

53:25 - it may lead you to believe that there's some malfeasance that occurred.

53:30 - It's not per se evidence of malfeasance, but it's enough for you to be able to say,

53:35 - I need more information. That's part of holding

53:37 - the elected officials of the public, officials accountable.

53:41 - It's not a tool to prove the tool, to prove, goes to the justice.

53:46 - Donohue. The physical ballots.

53:49 - That's what you would have to look at to definitively prove it.

53:52 - But the public information through the cast vote records

53:56 - is a piece of information that should be available

53:58 - that the public can look at and say, there are anomalies here,

54:02 - or there are something that might lead

54:03 - to a person to believe that there may be irregularities, that there may be.

54:08 - And some of it's not necessarily fraud in the sense of, you know, a malfeasance.

54:13 - It's a is there an anomaly in the software?

54:16 - Was there a software error that these these were tabulated incorrectly,

54:21 - which is documented in the court system of the Commonwealth of Pennsylvania?

54:24 - It happens.

54:24 - These are electronic machines that have to be programed.

54:27 - Those scanners have need those little dots are human error.

54:31 - So so for my edification,

54:35 - how does the timing

54:37 - of a request under the right to know,

54:41 - comport with the timing for filing a challenge

54:45 - to election results in most circumstances?

54:50 - The the right to know law would be, lengthier.

54:53 - So and so the entire discussion

54:56 - we're having right now about,

55:01 - a determination that there may have been an error or fraud

55:04 - based upon reliance of a right, no law request

55:07 - actually has very little impact.

55:11 - It takes too long.

55:12 - Well, if if the county Board of Elections were to respond within the initial time

55:16 - period of five days, you have five days, to file it.

55:19 - So depending upon the status of, the election

55:22 - process, that's generally not how it works.

55:25 - Well, it's not generally, but I think I think the telling note, is

55:30 - and it goes back to Justice Bronson and the comment

55:33 - with respect to the two sections that I cited.

55:35 - And arguably they do pertain to, mail in and absentee ballots.

55:40 - But both provisions and I find this somewhat

55:43 - I won't say shocking, but very surprising.

55:45 - Both of those provisions require a response

55:48 - within 48 hours by the General Assembly.

55:51 - So I know we're talking in the context of the context of the right to know law,

55:56 - which sometimes is a is a cumbersome,

55:59 - slow process, for governmental bodies.

56:02 - But the importance of having these, these documents turned over relatively quickly.

56:06 - The General Assembly is clearly made that policy determined

56:09 - not in terms of the ballots we're talking about.

56:12 - Well, we're talking about cast vote records, which is a little bit different.

56:15 - So when the cast vote record, you're getting to the ballots.

56:18 - Well, I mean, that's what I mean.

56:20 - That's your whole point. Correct?

56:22 - I mean, let's be, you know, clear about what we're talking about here.

56:25 - I mean, you know, ultimately, the utilization of the cast vote records

56:30 - in an extremely expedited fashion pursuant to a right to know law

56:35 - that I've never seen functioning within a five day period.

56:39 - But, I mean, ultimately, what you want is to look at the ballots.

56:42 - Yeah.

56:42 - With respect to the cast vote records, it's it's a matter of

56:47 - hitting and it's all electronic.

56:49 - So it's not a situation where you have to search for records.

56:53 - It's readily available.

56:55 - Why wouldn't you file?

56:56 - This is a mandamus action.

56:58 - I'm sorry. What?

56:59 - Why wouldn't you have just file it as mandamus action?

57:03 - In other words, instead of a right to know request, why would you file

57:05 - as a mandamus action asking for the the CVS CVR to be turned over?

57:08 - I mean, I think, Justice Donnelly, you hit the nail on the head

57:11 - this really is just going to be a means to an end

57:13 - because you're going to argue or somebody is going to argue

57:16 - based upon their review, that there's an anomaly

57:19 - that justifies them getting into the ballots themselves.

57:22 - Because that's what that's what we're really getting into.

57:23 - This is a means to an end.

57:25 - Well, the the assumption is that that's where that's headed.

57:28 - I mean, we're certainly not getting into the discussion of it.

57:31 - We were talking about what's the fraud that you're trying to prevent

57:34 - or how's this tied to fraud?

57:36 - That's one of the explanations. I'm not saying that that's

57:39 - certainly not appellants.

57:42 - Justice Robson's,

57:45 - recitation of the right to know law is clear.

57:47 - The the purpose of the right to know requests

57:50 - or the use of the public information is irrelevant to the discussion of

57:53 - of whether it's a public docket or not made

57:56 - with respect to the discussion we respectfully submitted.

57:59 - It's not I'm more than happy to have a discussion

58:01 - and continue the discussion with respect to potential options or reasons why

58:05 - that information may be relevant,

58:06 - but from a

58:07 - right to no request standpoint, it's irrelevant to this court's analysis.

58:10 - The analysis is is it a public record or is it not a public record?

58:14 - And if it's a public record, what anybody does with it

58:17 - within the Commonwealth, whether it's of any benefit to those individuals

58:21 - or not, is is not part of the analysis for the court.

58:25 - All right.

58:25 - Do any of the justices have further questions?

58:29 - I think we understand your position.

58:30 - Thank you very much.

58:31 - Thank you.

58:32 - Assuming that I'm not going to have an opportunity

58:33 - to address you again this afternoon or this morning.

58:37 - It's always an honor

58:38 - to to appear before this body, particularly in this historic courthouse.

58:42 - And it's been a pleasure. And I thank you for your time.

58:44 - Thank you.

58:44 - Particularly since you both drove in all the way from Butler.

58:47 - Right, to this

58:50 - last time.

58:51 - Let's hear from Mr. Joel.

58:54 - I'm sorry.

58:56 - Go ahead.

58:56 - Oh, okay. We go now.

58:58 - Button up here.

59:04 - Madam Chief Justice and honorable justices, may it please the court.

59:07 - Kenneth Joel, deputy general counsel from OGC Maine, here representing the.

59:11 - Secretary of the Commonwealth in the Department of State.

59:13 - As a police in this matter, I'm joined by Mister Austin White.

59:17 - He's representing Lycoming County.

59:20 - I would defer any county specific questions to him.

59:23 - I'm going to focus on the jurisdictional question

59:26 - and then the statutory construction argument.

59:29 - And I'd like to start with it,

59:30 - because there either way, this court can affirm the Commonwealth Court.

59:34 - And I'd like to sort of pick up where you were going.

59:36 - Justice McCaffery in your comment that everybody here

59:40 - in this room, I believe, understands it, where

59:44 - another statute governs

59:46 - records, that statute applies and not the right to know law.

59:51 - That was this court's holding quite clearly in energy transfer.

59:56 - 863 You look at the two statutes, the election code talks about these records,

01:00 - 04.467 the contents of the ballot boxes, the CVR, the images.

01:00 - 07.846 That's what it deals with the right to know law, as this court

01:00 - 11.307 found in Energy transfer talks more broadly about records.

01:00 - 12.519 They conflict.

01:00 - 15.712 They conflict not only in what is public and not public,

01:00 - 19.382 but they conflict in even as to public things,

01:00 - 22.652 who gets them can only be a qualified elector of the county.

01:00 - 26.055 That's why Miss Honey. Yes.

01:00 - 29.258 Not necessarily in either or.

01:00 - 31.670 It's not a statutory

01:00 - 34.764 displacement thing so much as it is

01:00 - 38.277 a records specific question.

01:00 - 42.314 The right to know law exception says where the record is exempt

01:00 - 46.943 from disclosure under any other federal or state law or regulations. And

01:00 - 50.913 so it's not

01:00 - 54.426 it's not whether this paradigm applies or that paradigm applies.

01:00 - 57.720 It's whether this particular record is exempted

01:00 - 00.799 by reason of some other provision of law.

01:01 - 01.635 Isn't that correct?

01:01 - 04.236 I think I think that's partly correct, because there's that provision

01:01 - 09.198 and there's also 3101.1 which says if the assessable ity

01:01 - 12.902 is governed by another statute, the right to know law shall not apply.

01:01 - 16.448 And that's where this court went in, the energy

01:01 - 19.676 transfer case, just as Rob said, it's where you went in your dissent and held.

01:01 - 20.320 Right.

01:01 - 24.147 So but but the the the issue is a little bit different.

01:01 - 28.560 The election code does not have a separate robust process

01:01 - 33.056 for filing a request for access, administrative appeal

01:01 - 36.769 exemptions, procedures for access to these documents.

01:01 - 40.706 And in the cases that you're talking about there, if I remember them correctly,

01:01 - 42.808 there was a there is there's actually procedure

01:01 - 46.736 in the other substantive statute that conflicted with the,

01:01 - 48.048 the right to know law.

01:01 - 50.616 So because there was a more specific statute

01:01 - 54.310 dealing with the procedures to get access to the document,

01:01 - 57.322 the more specific would prevail over the general.

01:01 - 00.392 Why is justice whack not correct and saying we don't have that

01:02 - 01.194 with the election code.

01:02 - 04.220 All we have is a provision that says what's what's not public.

01:02 - 07.199 And that would put you in the right to know law provision

01:02 - 11.360 that says documents are exempt, that other statutes say are not public.

01:02 - 13.963 So I think there's a couple of points on there. It it

01:02 - 16.942 unlike, in the energy

01:02 - 19.969 transfer case, there was a process before the PUC.

01:02 - 22.815 But here there can also be a process. Right.

01:02 - 24.650 You make a request at the county.

01:02 - 27.677 The county says yes or no. Where's that?

01:02 - 29.922 Where's that? They make a request. Where's the election?

01:02 - 32.949 Where's the provision, the election code that says that you're making?

01:02 - 35.994 I think you're just making a request for the documents.

01:02 - 38.297 You and I have had this argument before. Right.

01:02 - 40.632 And I have a feeling we're going to continue having it today.

01:02 - 44.737 So I know we've we've had I'm having deja vu all over again, but it's just

01:02 - 46.972 I haven't been, as am I. But that's how I've been sworn in.

01:02 - 48.676 So I can kind of do whatever I want to do.

01:02 - 52.177 The, the,

01:02 - 55.204 the idea that a government agency can come in

01:02 - 59.651 and argue this robust procedure for access to documents don't apply

01:02 - 04.156 because there's this unspoken unscripted under no regulation,

01:03 - 07.283 you can say to no procedure that you can say to

01:03 - 09.361 the administrative agency law and the general rules

01:03 - 13.398 of administrative practice and procedure and anything for this idea

01:03 - 15.601 that, well, you can always come in and ask us,

01:03 - 18.628 well then my question would be, well, how long do they have to respond?

01:03 - 21.006 Well, they'll respond quickly.

01:03 - 22.374 Well, what if they don't respond quickly?

01:03 - 24.676 Who do you appeal it to?

01:03 - 26.278 What you should feel to this guy?

01:03 - 29.672 None of this none of this process that you're talking about is written down.

01:03 - 32.842 What is written down is the right to know law.

01:03 - 35.087 That's true. The right to know law is written down. So.

01:03 - 39.949 So what I would answer is you can come in and make the request to get to justice.

01:03 - 41.527 How long we have to. How long?

01:03 - 42.094 I'm getting there.

01:03 - 42.562 I'm getting there.

01:03 - 45.121 If it's too long, you mandate too long.

01:03 - 47.767 What?

01:03 - 50.803 You're asking for these things post-election, what do you need them for?

01:03 - 51.904 Do you need them more quickly

01:03 - 54.931 than the right to know law, which they could take 35 days to give you?

01:03 - 00.403 But the problem here, counsel on this, is that the right to know law doesn't say

01:04 - 03.882 that, that everything related to the election

01:04 - 07.643 code is set apart and not covered by the right to know law.

01:04 - 12.949 That would be that would be, convincing for your point.

01:04 - 17.420 What it says is the record is exempt from disclosure under any other, etc., etc..

01:04 - 21.791 And so then we would refer to the election code or section 308 where it says

01:04 - 25.127 accept the contents of ballot boxes and voting machines

01:04 - 28.040 shall be open to public inspection.

01:04 - 31.067 So that's why we're going to be referring back to that.

01:04 - 33.879 Because if you can't prevail

01:04 - 37.149 on convincing, that's that it's ballot contents of a ballot box

01:04 - 40.252 are voting machine, then you've got a problem regardless.

01:04 - 41.221 Isn't that right?

01:04 - 44.280 I think I think that's very similar to what happened in Energy Transfer.

01:04 - 48.050 There were certain types of documents that were controlled by the act.

01:04 - 49.995 I think there was some discussion in that.

01:04 - 54.657 There was a reference in that case to another case involving a or maybe or

01:04 - 58.961 something like that, where it was a more where it was a routine right to know law.

01:04 - 00.439 Yes, there could be rights,

01:05 - 04.667 no law requests of the county for minutes for emails. Yes.

01:05 - 08.647 But this is a specific provision that says these documents are not.

01:05 - 13.109 And what's more, in 308 there's a whole list of things that are public.

01:05 - 16.913 There's then this, the carve out that says these are not public,

01:05 - 21.017 but even for the public stuff, I want to and I want to make sure I get this out.

01:05 - 24.563 Who gets it is limited.

01:05 - 25.998 Not so in the right to know law.

01:05 - 28.533 It's only a qualified elector of the county.

01:05 - 30.669 That's why Miss Honey couldn't appeal.

01:05 - 31.537 That's why Miss Honey,

01:05 - 35.131 the trial court found lack standing again looking at the election code.

01:05 - 36.909 How do they get it?

01:05 - 39.544 They can inspect and copy.

01:05 - 40.946 When can they get it?

01:05 - 43.048 Only during business hours.

01:05 - 43.917 How can they get it?

01:05 - 47.953 Moreover, only if there's an employee of the board or a board member

01:05 - 53.182 overseeing it, and the county can impose reasonable safeguards on it or not.

01:05 - 58.063 These are highly collateral issues that we're not here disputing, right?

01:05 - 59.998 I mean, we're here to hear you.

01:06 - 03.492 Aren't we here to hear your argument on how these cars

01:06 - 07.196 are contents about the ballot boxes for voting machines?

01:06 - 10.108 Yeah. I'm not here to dispute that. I'm happy to get there.

01:06 - 12.077 But I did want to press the jurisdictional point

01:06 - 13.211 because it is jurisdictional.

01:06 - 15.714 That's what this court and energy transfer concluded.

01:06 - 19.442 It removed that from the lower and put it somewhere else.

01:06 - 22.111 We think that that's what should have happened here. Oh, our

01:06 - 26.248 308 is invoked.

01:06 - 29.227 That they should say, look, we're denying it.

01:06 - 32.097 We're denying your appeal because we lack jurisdiction.

01:06 - 35.124 That's the terminology this court used in energy transfer

01:06 - 36.501 trial court sort of affirmed.

01:06 - 39.237 On that basis, Commonwealth court should have affirmed on that basis,

01:06 - 42.341 this court, we believe, can and should affirm on that alternative.

01:06 - 45.768 But let me, let me, let me just he's not sure justice work.

01:06 - 47.779 I'm not sure the jurisdictional question is in front of us,

01:06 - 50.482 but you're arguing in a right for any reason thing,

01:06 - 52.617 although jurisdiction wouldn't get you the same result.

01:06 - 54.753 But the Commonwealth Court added vacate.

01:06 - 57.780 But let's put all that stuff aside.

01:06 - 59.725 Again,

01:06 - 04.229 how would this how would this have played out in this case?

01:07 - 06.565 If you're right, what does the election code

01:07 - 09.592 provide with regard to the request that was made here?

01:07 - 11.961 And how would it, if teased out procedurally?

01:07 - 17.666 So it sounds like we're not transferring to the statutory construction argument.

01:07 - 18.744 No, no. Oh okay.

01:07 - 18.911 Okay.

01:07 - 21.937 You're saying you're saying that the right to know law doesn't apply.

01:07 - 23.648 Something else does. Yes.

01:07 - 25.017 There's something else.

01:07 - 28.253 The election, you and the election code tease out the procedure.

01:07 - 30.422 What what should what should the petitioner?

01:07 - 32.991 What should the petitioners have done here?

01:07 - 35.027 File it. You said you said make a request.

01:07 - 37.462 Make a request to the county,

01:07 - 40.232 to the county jail, to the to the county, to the county board of election.

01:07 - 41.967 Okay? Okay.

01:07 - 43.869 What does that look like? Is it a petition?

01:07 - 45.437 Is it a is it an email?

01:07 - 47.472 Is can you just walk in and ask for it?

01:07 - 50.709 I think it could be whatever the county sets forth in its policy.

01:07 - 55.504 I mean, I, I think do we have a policy I think asking for I would defer that to

01:07 - 57.416 Mr. White. Okay.

01:07 - 59.184 Well, you're making the jurisdictional. Yeah.

01:07 - 02.244 So I'm trying to understand what the alternative procedure is.

01:08 - 05.381 So I think so I think the alternate whether orally, I,

01:08 - 06.658 I don't know if that would cut it.

01:08 - 09.494 I mean, an email under the general administrative practice

01:08 - 11.730 and procedure would have to be in writing. Okay.

01:08 - 14.299 So you do that they either deny it.

01:08 - 15.534 Let's assume they deny it.

01:08 - 17.469 Let's assume they say like 308 governs.

01:08 - 19.413 We're not giving you these documents. Okay? Okay.

01:08 - 21.174 I think at

01:08 - 25.043 that point you have under the local agency

01:08 - 28.246 that's a local agency decision, local government agency decision.

01:08 - 32.551 You can appeal that up to the Common Pleas Court against adjudication.

01:08 - 35.353 So it can't be appealed to the Common Pleas Court because there was no hearing.

01:08 - 37.956 It would be an invalid adjudication. Then.

01:08 - 40.959 Then I think the county could having to see the problem we're having

01:08 - 44.196 here is it's I wouldn't call it a problem.

01:08 - 47.499 Okay, I understand, but but I understand where you're going with it.

01:08 - 51.360 But but our position is that that's the way the statute reads.

01:08 - 55.498 The statute reads that where another statute here, the election code

01:08 - 00.202 makes something public or not or limits conflicts with

01:09 - 03.472 is the language of 31.3101.1.

01:09 - 06.485 It shall not apply. That's all we're saying.

01:09 - 09.512 This was this was the wrong path to get here.

01:09 - 13.158 Now, recognizing we're here and recognizing you all want to hear

01:09 - 15.293 about contents of the ballot box.

01:09 - 19.155 So from a statutory I mean, we all know the general maxims.

01:09 - 22.134 Trying to get the intent to the legislature.

01:09 - 23.468 Let's look at the plain language.

01:09 - 25.070 Is it clear, is it ambiguous?

01:09 - 26.571 Is it unambiguous?

01:09 - 31.009 We believe, and, you know, we must give word effect to all the words.

01:09 - 31.777 No surplus.

01:09 - 34.770 It a couple of things that I think have to be layered on here.

01:09 - 38.850 The secrecy in the Constitution should be looking at this question

01:09 - 40.318 of what this means through that lens.

01:09 - 44.189 But if you look at the at the language 308 it's

01:09 - 46.124 extremely long and I'm not going to read it.

01:09 - 49.185 I'm going to pass if you'd like me to, I will, but I think, okay,

01:09 - 52.321 I didn't think so, but I figured I'd offer. But.

01:09 - 57.335 It has a whole bunch of stuff that shall be public, right?

01:09 - 01.497 That's the first part, except the contents of ballot boxes,

01:10 - 04.209 except the contents of ballot boxes and voting machines.

01:10 - 05.233 Okay.

01:10 - 08.079 How is the CVR?

01:10 - 11.106 Which is a spreadsheet could be produced by a keystroke.

01:10 - 14.519 How is that the content of a ballot box or a voting machine?

01:10 - 18.256 Because it's never in a ballot box or voting machine.

01:10 - 19.357 How is it a context?

01:10 - 25.321 So the operative terms contents of ballot box, voting machine are not defined.

01:10 - 27.966 I think we can all agree on that. They are not defined in English.

01:10 - 30.502 They're English words. Right? Right. So we looked at dictionaries.

01:10 - 32.737 We looked at common usage contents.

01:10 - 35.764 Something content okay. Ballot box.

01:10 - 36.375 It's clear.

01:10 - 39.401 And as it deals with Lycoming County, which is who we're here on

01:10 - 41.746 for the in person.

01:10 - 44.583 You know I go in, I get a piece of paper, I fill in the bubbles,

01:10 - 47.419 I put it through a scanner, it drops into a bag.

01:10 - 48.653 That's a ballot box.

01:10 - 51.656 I think there's much dispute about and and I would agree with that.

01:10 - 54.559 My friends on the other side concede and agree with that also.

01:10 - 56.361 And the CVR is not in that bag.

01:10 - 00.422 The CVR isn't, but the information on the ballot is there.

01:11 - 03.535 You can't say that the ballot is just the paper

01:11 - 06.662 sans information because the information is on there.

01:11 - 09.341 My selections are on there. Your selections are on there.

01:11 - 11.042 Who I voted for is on there.

01:11 - 13.645 That information is the contents.

01:11 - 18.540 I let the General Assembly write a statute that says information or CVR.

01:11 - 21.653 Why do you want us to write the statute for you?

01:11 - 22.954 We don't want you to read the statute.

01:11 - 26.858 We think the common understanding of the words contents of

01:11 - 29.628 I think is very important here. That's the word they chose.

01:11 - 32.821 I heard a lot of discussion about paper in the back in the box.

01:11 - 37.159 They didn't use the word end of means derived from originating from.

01:11 - 39.004 That's what of means.

01:11 - 40.238 It's a function of yours.

01:11 - 42.407 So your position is the exact opposite, right?

01:11 - 43.766 Yes. Your position is.

01:11 - 46.478 All the information that is

01:11 - 49.505 on the ballots in the ballot box cannot be made public.

01:11 - 50.882 Correct? Okay.

01:11 - 53.909 That would include precinct level voting. That

01:11 - 56.321 what do you mean by that?

01:11 - 57.189 I just want to make sure

01:11 - 59.791 whatever we're calling voting data, whatever is on the ballot,

01:11 - 02.527 whatever's on the information on the ballot, the ballots were the vote.

01:12 - 03.029 So, yes.

01:12 - 08.324 So whatever candidates were voted for that are in that ballot box in a precinct

01:12 - 12.628 can't be made public under the right to know, like yes, no, no,

01:12 - 15.774 it can't be made public under the election that under the election

01:12 - 16.509 code cannot be made.

01:12 - 19.535 How in the world then do they report precinct level data?

01:12 - 22.947 How do counties report the results of election with precinct level data?

01:12 - 23.749 If precinct level

01:12 - 26.775 data is contained to the ballot box and the ballot box is not public.

01:12 - 30.955 So the information that's there is the contents of the ballot box.

01:12 - 33.358 And I would note that my friends on the other side, in their brief,

01:12 - 36.161 make no developed argument on the ballot box issue.

01:12 - 38.730 I can get to the voting machine issue, but they don't make a developer.

01:12 - 39.764 You're not answering my question.

01:12 - 42.167 I'm going to get there. Could you do me a favor?

01:12 - 42.968 Will you please repeat?

01:12 - 44.536 Because I want to make sure I fully understand it.

01:12 - 48.306 You agreed with me that the ballot, the ballots in the ballot

01:12 - 51.543 box reflect the votes of the voters in the precinct.

01:12 - 53.978 Correct the candidates who they voted for.

01:12 - 55.613 Yes. That's what's reflected on the ballots.

01:12 - 57.515 The contents of the ballot box are is

01:12 - 59.751 is the paper that has the information filled out.

01:12 - 02.778 So, so from the precinct perspective,

01:13 - 05.557 all of that information that is in the ballot box on

01:13 - 08.650 the ballots is not public and can't be made public, correct?

01:13 - 11.996 Yes. Okay. My question to you is simple.

01:13 - 15.166 If that's true, how can counties

01:13 - 19.128 report out precinct level election returns

01:13 - 23.108 because they're reporting out returns.

01:13 - 26.945 They're not tying it back to somebody who returns or votes, returns

01:13 - 27.946 or votes for candidates.

01:13 - 31.683 If I'm in a precinct that only 125 people voted, and sadly,

01:13 - 35.110 I live in one of those precincts and the county reports out

01:13 - 39.848 how those 125 votes were allocated between different candidates.

01:13 - 42.994 They're reporting out the contents of the ballot box,

01:13 - 45.497 but they're reporting they're reporting out the results that aren't

01:13 - 49.391 reporting out the individual line by line vote of everybody.

01:13 - 51.436 Make sure now you're making a distinction.

01:13 - 54.463 So now you're saying the contents of the ballot box

01:13 - 58.066 generally the information in there is not all public,

01:13 - 01.270 it's just how it's compiled that makes it public.

01:14 - 05.016 So if it's compiled differently meaning it's just giving you a some it's not.

01:14 - 05.584 It's public.

01:14 - 08.953 But if you're saying because of the line by line separation,

01:14 - 12.457 that somehow makes the information nonpublic, what we're saying.

01:14 - 15.818 Yeah, what we're saying is that the contents, that information,

01:14 - 19.297 which then goes on this spreadsheet. Right.

01:14 - 23.134 So some contents are public, meaning how people get the overall results.

01:14 - 25.136 Sometimes the results for that.

01:14 - 29.565 Well, I mean, so what's the statutory basis for you

01:14 - 33.611 telling us this content is open to public inspection.

01:14 - 37.506 But that isn't I mean this column is public inspection.

01:14 - 40.718 This column is not where's this?

01:14 - 44.456 I understand you could try to make a policy argument for that, but where's

01:14 - 49.551 the language of the statute that supports your slicing and dicing of what?

01:14 - 53.055 On this CBR is a content of a ballot box, and what is not

01:14 - 54.500 council.

01:14 - 58.360 If I if I could add to that question, I get an answer to my first try again. I.

01:14 - 01.039 Can you repeat it one more time?

01:15 - 04.066 Yeah, I apologize, I didn't want to make a justice problem.

01:15 - 05.678 Thank you.

01:15 - 09.371 I think you offered a sort of an inch delineation or a

01:15 - 12.517 a slicing and dicing of that.

01:15 - 13.918 The contents or the.

01:15 - 16.945 What would be honest, CBR we're talking about covers here.

01:15 - 19.357 We're not talking about paper ballots.

01:15 - 24.887 So you're telling us based on that response that there are some

01:15 - 31.193 some data on these covers there in your trial records

01:15 - 35.464 that are contents of ballot boxes,

01:15 - 39.043 but some are not contents

01:15 - 42.571 of ballot boxes and can be amenable to public inspection.

01:15 - 48.110 And my question to you is, what is the statutory basis for you

01:15 - 51.256 telling us that there are some data

01:15 - 54.659 on these covers that we need to construe

01:15 - 57.729 as contents of ballot boxes, and some that are not.

01:15 - 00.656 I don't see the statutory basis. Okay. So I so I think.

01:16 - 04.136 If I understand you

01:16 - 07.205 correctly and if I get it wrong, please, please tell me.

01:16 - 11.609 But the contents of the ballot box, it's our position is the paper

01:16 - 12.877 and the information on it.

01:16 - 14.646 That's what they've asked for.

01:16 - 16.047 They have asked for that.

01:16 - 18.416 And that is and

01:16 - 22.987 and when we're talking about reporting out results, that's aggregate.

01:16 - 26.558 That's, you know, 35 votes went for this candidate, 45 votes

01:16 - 30.361 went for that candidate that isn't this voter voted for this person.

01:16 - 33.298 This voter voted for that person. That's the difference.

01:16 - 37.092 Is there, is there a, difference between

01:16 - 42.607 the contents of the ballot box versus what I think you're talking about,

01:16 - 47.002 which would be the contents of the ballot, because the statute says

01:16 - 51.039 accept the contents of ballot boxes.

01:16 - 56.054 And our position is that the ballot box contains the paper.

01:16 - 56.322 Right.

01:16 - 59.057 And we're talking about, like, combing this is filling in the bubbles.

01:16 - 01.960 And to digress for a moment,

01:17 - 04.987 it's the same with mail in and absentees in Lycoming County.

01:17 - 09.033 I get my mail in, I get my absentee, I fill in the bubbles, I, I send it back,

01:17 - 09.969 they put it through a scanner.

01:17 - 12.961 It ends up, it ends up in a different box, but it ends up in a box.

01:17 - 16.507 So I don't think you answered my question.

01:17 - 19.477 I'm sorry, I said, I don't think that was no, no, no, I don't think it did.

01:17 - 22.504 And I was getting here and I lost my train of thought.

01:17 - 23.537 So I apologize.

01:17 - 27.785 So what's in the ballot box is the ballot is the paper.

01:17 - 28.786 That's where I got off on time

01:17 - 31.813 to talk about the paper and the absentee and the mailing.

01:17 - 36.594 But you can't you can't divorce that from the information and the selections.

01:17 - 38.997 That's on it. It's

01:17 - 40.198 because content.

01:17 - 42.533 The legislature did not divorce.

01:17 - 45.503 The legislature said the contents of the ballot box.

01:17 - 49.007 If I have a bag of pure justice, McCaffrey gave me a Hershey kiss.

01:17 - 52.300 So if I have a bag of Hershey, if I have a bag,

01:17 - 55.804 if I have a bag here, it's full of these, right?

01:17 - 00.542 And I say, here's the you can't get the contents of this bag.

01:18 - 03.979 The contents of the bag is the Hershey Kisses.

01:18 - 08.259 It's not a spreadsheet that justice McCaffrey generates later that says,

01:18 - 12.421 you know, in in that sack of Hershey's kisses, were you know,

01:18 - 18.126 50% those gold Hershey Kisses and 50% the silver ones.

01:18 - 22.230 It's the actual Hershey Kisses, which are the contents and and I

01:18 - 25.634 so I again, I'm not seeing how you get to legislate.

01:18 - 31.215 It's that it's a, that it's a data analysis or a CVR of those contents.

01:18 - 32.850 The legislature didn't do that.

01:18 - 37.155 So we believe they did by using the words contents of it's broader

01:18 - 39.557 than just the paper. That's our position. It's content.

01:18 - 42.827 Except that they can report out the content in terms

01:18 - 46.321 of how many people voted for who in that precinct in an aggregate.

01:18 - 50.192 But that's just your gloss that the statute doesn't support.

01:18 - 53.671 Some, discrimination

01:18 - 56.698 between, the aggregate,

01:18 - 01.036 and the particular CVR lines.

01:19 - 03.748 That's just an invention of, of your department.

01:19 - 05.616 Well, I think that I think the election code

01:19 - 08.586 probably does have provisions in it that allow the counties to report out

01:19 - 09.488 results.

01:19 - 11.355 Mr.. Joel, does this, isn't it?

01:19 - 13.057 That's the point, isn't it?

01:19 - 16.561 The election code allows for the reporting of results

01:19 - 19.588 or what's the point?

01:19 - 21.332 Mr.. Show us.

01:19 - 21.967 Would whatever now.

01:19 - 26.061 Sorry, Chief Justice, the spreadsheet or the the CVR.

01:19 - 31.199 Can you tell from that that an individual voter

01:19 - 34.612 voted for,

01:19 - 38.974 candidate from one party for president, an individual,

01:19 - 44.589 and then voted for a candidate of a different party for US Senate

01:19 - 48.392 and then down ballot mix the votes by party.

01:19 - 50.762 Can you tell that kind of thing? Sure. Yes.

01:19 - 55.800 And that's something that you could not tell from the precinct reporting.

01:19 - 56.168 Right.

01:19 - 00.362 You can only tell that by looking at that records or the ballot

01:20 - 04.366 or the ballot, or a snapshot of the ballot or a PDF of the ballot,

01:20 - 08.804 or a digital image of the ballot, which is the Stroman case. Yes.

01:20 - 10.748 Okay. Yeah. But you don't know who that is.

01:20 - 12.083 I mean, that's the whole point of Mr.

01:20 - 15.853 Lieberman's letter that alleviates the ballots,

01:20 - 19.281 the randomization alleviates the ballot secrecy concern.

01:20 - 23.628 So obviously, the whole purpose of the CVR, right.

01:20 - 25.596 Or part of the purpose is to be able to know

01:20 - 29.157 that person X voted here, person Y voted here.

01:20 - 34.739 But you don't know who X or Y or is it not the point that Director.

01:20 - 38.576 Lieberman was making in his letter, in the record, I believe, yes.

01:20 - 39.311 And I know the letter.

01:20 - 41.078 You're referring to this case.

01:20 - 42.313 It's randomized.

01:20 - 44.248 Not every county randomizes.

01:20 - 47.618 And I think the Ameche counties put forth

01:20 - 50.588 a very good position on that and their concerns.

01:20 - 54.082 Moreover, I think to get to your question earlier, Chief Justice,

01:20 - 58.696 there could be precincts that are so small you can marry that

01:20 - 02.490 with who applied with who came in, and you can reverse engineer that.

01:21 - 05.736 That's what President Judge you found in her dissent

01:21 - 09.598 in the van Beber and Weaver case is in your precinct results.

01:21 - 11.376 I'm sorry, I

01:21 - 14.836 didn't hear you could reverse engineer precinct level election results.

01:21 - 16.981 I mean, this is not this is not novel.

01:21 - 17.916 Political.

01:21 - 21.243 Political operatives have been taking this data for years and doing this and

01:21 - 24.412 and reverse engineering districts and figuring out, okay, they have so many

01:21 - 28.593 and the data does show what, how many Republicans came and voted

01:21 - 30.161 and how many Democrats came and voted.

01:21 - 33.998 And they know they show you who what candidates were won in that district,

01:21 - 35.433 what candidates lost in that district.

01:21 - 38.526 I mean, that data is already being ripped, but it's out.

01:21 - 42.039 But the difference is, if you take the ballot,

01:21 - 45.400 if you take the picture of the ballot, if you take the scan of the ballot,

01:21 - 48.870 if you take the information on the ballot, that's on this CVR,

01:21 - 53.008 if you take that line, this is, you know, me as a voter, this is my line.

01:21 - 55.386 I voted this way, this way, this way, this way, this way.

01:21 - 57.450 I left this one blank because I did your your point.

01:21 - 00.157 This is this is your key argument.

01:22 - 01.425 Your key argument is it's

01:22 - 05.921 the individualized nature of the CVR that makes it nonpublic,

01:22 - 08.900 even though you can't track it to a particular individual,

01:22 - 12.870 even even though and I would disagree with you, you're fine with aggregate data

01:22 - 14.238 you just don't want.

01:22 - 16.974 So you could take the bottom line

01:22 - 18.976 totals and report those out.

01:22 - 21.078 Well, that's what's reported out with election results, right.

01:22 - 25.707 So you're saying as soon as you separate it by randomized number, ballot

01:22 - 29.577 that that is what makes it off limits. Yes.

01:22 - 31.822 Okay. And and

01:22 - 34.425 and I just want to push back a little bit on randomized.

01:22 - 36.861 There are counties where it may not be randomized.

01:22 - 39.096 I mean that that's what the Ehmke talks on it.

01:22 - 40.865 That's not a statutory construction question.

01:22 - 43.634 No, no, no. But that's what that gives a county should be randomizing.

01:22 - 47.672 But that well, it's not a statutory construction argument, but it is a lens

01:22 - 50.699 through which to avoid constitutional problems.

01:22 - 51.943 We can't this should be read.

01:22 - 56.714 I mean, there's there has to be a limit to this constitutional avoidance doctrine,

01:22 - 00.208 because otherwise every statutory construction case

01:23 - 03.812 will use as a makeweight this constitutional flavor

01:23 - 08.416 and say what you know, what statutory interpretation result here.

01:23 - 12.296 Is most, friendly

01:23 - 15.724 to language in our Constitution.

01:23 - 18.369 You know, either you're telling us this statute,

01:23 - 22.163 this statute is unconstitutional, which you haven't told us,

01:23 - 26.043 or that argument doesn't get you anywhere because you can't

01:23 - 29.046 just give us a flavor of the Constitution.

01:23 - 32.040 Either you're telling us the statutes unconstitutional,

01:23 - 34.852 or we're here on a matter of statutory interpretation.

01:23 - 37.755 That is one or the other. We are here in a matter of statutory.

01:23 - 41.950 So I don't think you can say the Constitution mandates secrecy.

01:23 - 46.163 So in order to ensure that under no circumstances

01:23 - 49.190 will any voters vote be revealed,

01:23 - 52.003 you're forced to construe the statute

01:23 - 56.297 in in way acts instead of way. Why?

01:23 - 00.402 Because if that's the case, then that becomes

01:24 - 04.072 the mandate in every statutory interpretation case.

01:24 - 07.151 I would just respectfully disagree.

01:24 - 10.454 I think here we are dealing with a specific constitutional provision,

01:24 - 12.990 and we're we're advocating a way to read it

01:24 - 16.151 that avoids that, that avoids notice to every voter in a county.

01:24 - 18.129 It avoids those concerns.

01:24 - 21.032 And given the choice between reading something

01:24 - 23.234 to avoid those concerns and reading something

01:24 - 27.128 that puts those concerns at play, we would suggest it should be read.

01:24 - 29.407 Isn't it better? One more thing. Sure. Sure.

01:24 - 30.008 Isn't it?

01:24 - 33.001 Isn't it better from your department's perspective?

01:24 - 35.846 Instead of telling us to construe

01:24 - 38.649 ballot box to mean a spreadsheet

01:24 - 41.676 based on technology, what, 80 years later,

01:24 - 45.580 90 or 70 years later, whatever it is,

01:24 - 48.993 to go to the General Assembly and say, hey, folks,

01:24 - 52.320 why don't you rewrite this to modernize this statute?

01:24 - 56.491 Because what what you're asking us to do is, is, I think,

01:24 - 58.070 profoundly

01:24 - 01.305 counter intuitive, which is to look at this thing and say,

01:25 - 04.799 this spreadsheet is the content of a ballot box.

01:25 - 09.447 And when it's a fiction, because nobody's maintaining

01:25 - 12.474 this thing was in the ballot box.

01:25 - 18.179 I, I'm.

01:25 - 21.158 We've set forth our position.

01:25 - 22.793 It is contents of the ballot box.

01:25 - 25.820 And that means not only the paper but the information on it

01:25 - 29.767 and whether that whether the form of that information

01:25 - 32.794 is the paper, whether it's a photograph,

01:25 - 35.506 whether it's a scanned PDF,

01:25 - 39.968 whether it's on this spreadsheet that information is the same

01:25 - 43.180 and allowing certain certain

01:25 - 46.207 formats of that to be public.

01:25 - 49.687 But other formats, as we all agree, are not public.

01:25 - 52.981 I think I think there's unanimity here that the paper is not getting out

01:25 - 56.293 to allow the information out.

01:25 - 01.156 Let's take a photo of it to allow where does it stop to allow that out?

01:26 - 04.301 But not the paper is an absurd result.

01:26 - 05.703 Council had to respond to Mr.

01:26 - 08.105 Brett's point on that because I thought, can you respond to Mr.

01:26 - 08.840 Brett's point on that?

01:26 - 12.209 Because you and I know in the, in the my colleagues probably know

01:26 - 15.336 this as well when we do petition challenges,

01:26 - 17.149 you know, the name

01:26 - 20.375 we go ad nauseum went line by line, the line by line reviews.

01:26 - 26.681 We make tons of copies of the, the petitions,

01:26 - 30.694 the digital copies, the the digital copies are scanned on photocopies.

01:26 - 32.496 We do that any number of things.

01:26 - 35.499 But when it comes to the actual courtroom proceeding,

01:26 - 39.427 we require the actual original petitions,

01:26 - 43.507 because those are the ones that we review line by line.

01:26 - 48.245 The challenge is to make sure that the signature is either upheld or it's not.

01:26 - 51.982 And the reason is because sometimes the scanned copies don't look right.

01:26 - 54.385 Sometimes this doesn't happen in the end of the day,

01:26 - 57.979 you have to evaluate the fact that the petitions on the originals.

01:26 - 02.760 Mr. Breath's argument is that when the General Assembly in 1930,

01:27 - 06.321 whatever said the ballots,

01:27 - 10.358 shall not be public or open for public inspection,

01:27 - 14.171 they were preserving that original, that ballot.

01:27 - 19.143 Because if there is a challenge that is, in fact like the petition signatures,

01:27 - 23.414 the original petitions, the best evidence, and we don't want anybody coming in

01:27 - 26.717 and manipulating them or ripping them up or throwing them away

01:27 - 30.011 or anything like that, why isn't that a fair construction of the statute?

01:27 - 33.824 Because the words

01:27 - 36.660 have broader than that contents has brought in that others

01:27 - 39.730 brought in that ballot box is broader than that voting machine is broader

01:27 - 42.890 than that, and public disclosure is broader than that. Yes.

01:27 - 45.069 Council.

01:27 - 47.638 I'm sorry, can I ask you, go ahead.

01:27 - 49.006 Just a follow up question.

01:27 - 52.567 And I asked your opposing counsel a similar question.

01:27 - 59.016 The statute prevents disclosure of the content of ballot boxes.

01:27 - 03.611 I mean, we're all in agreement on that, I think so, okay, so on.

01:28 - 09.727 Why do we have to get into questions of secrecy,

01:28 - 12.987 constitutional issues or anything of that, that nature?

01:28 - 17.725 I mean, if you look at the physical ballot in the ballot box,

01:28 - 22.130 you can't sink one of those ballots with the person who cast it.

01:28 - 23.108 Correct.

01:28 - 25.943 It just drops into the ballot box, the physical.

01:28 - 31.306 So that's why I'm I'm just a little bit confused by this discussion.

01:28 - 34.118 Well, if you can't, you can't match this without it.

01:28 - 34.419 Is it?

01:28 - 37.955 You know, therefore it's not an issue of, disclosing

01:28 - 40.982 the digital, you know, reports of what's in the ballot.

01:28 - 42.726 It doesn't matter.

01:28 - 47.855 I mean, what matters is whether or not the content of the ballot box

01:28 - 52.269 is contained on the CVR report.

01:28 - 55.530 Is it the content of the ballot box? Yes.

01:28 - 57.875 What we believe it doesn't matter if you could sync it

01:28 - 00.902 with who actually cast a vote or anything of that nature,

01:29 - 05.916 it's truly a question of whether or not what is reported out on that.

01:29 - 09.920 CVR reflects the content of the ballot boxes.

01:29 - 11.555 Yes, and I would agree with you.

01:29 - 13.357 And this is really is statutory construction.

01:29 - 16.384 I was only alluding to that if there is concern.

01:29 - 18.762 But but you're right, it is our position that it is.

01:29 - 23.925 And I would note that the trial court who made the findings of fact

01:29 - 29.630 found as a fact that the CVR is the digital equivalent of the ballot.

01:29 - 32.643 That's a finding.

01:29 - 33.744 That's a finding of fact.

01:29 - 35.646 That is, in this case,

01:29 - 39.707 if it's the digital equivalent, how do you protect one but not another?

01:29 - 41.952 All right. Mr. Joel, I think we understand.

01:29 - 43.954 Are there any other questions can I ask?

01:29 - 45.055 Sure.

01:29 - 48.025 We talked about it.

01:29 - 49.693 Is it

01:29 - 50.994 the voting machine?

01:29 - 55.556 And why is Judge Wallace not correct

01:29 - 02.029 when she looks to the panoply of, sections of the code

01:30 - 06.434 that make a distinction between the Ed's and voting machine?

01:30 - 09.246 So I think so. I think she's incorrect for a number of reasons.

01:30 - 11.749 And let me get at it this way.

01:30 - 14.151 And that's really my friend's argument.

01:30 - 16.987 They break it up into four sections, but it's really the argument.

01:30 - 20.090 Look, they're using an EVs, therefore it can't be a voting machine.

01:30 - 22.326 Therefore this provision doesn't even apply it. Really.

01:30 - 23.394 That's where they're going.

01:30 - 27.631 So I would note that voting machine is used throughout the election

01:30 - 29.266 code in a myriad of places.

01:30 - 30.601 Even in the EVs

01:30 - 34.629 article it's used, and I want to make sure I get the exact sites for you.

01:30 - 41.335 There, even in that article

01:30 - 47.418 253031.5 so this is the article dealing with EVs, right?

01:30 - 49.686 There's the article the General Assembly enacted

01:30 - 52.680 to to enable EVs in the Commonwealth.

01:30 - 57.151 30301.5 talks about having a machine inspector.

01:30 - 00.731 30301.8 the heading of it

01:31 - 03.758 is payment for the machine of the machines.

01:31 - 07.938 And then it talks about EVs, 0.12 votes cast,

01:31 - 13.334 or by depositing into the machine 0.20 again, 3031.20.

01:31 - 15.846 If something goes wrong with one of those components

01:31 - 19.140 on Election Day, you can substitute another machine.

01:31 - 22.510 I don't think anybody I don't think I don't think that's

01:31 - 27.858 the point where the machine is being used differently in different places.

01:31 - 30.885 The question is whether an optical scanner

01:31 - 33.931 is that scans

01:31 - 38.493 again, like my high school, Sam's work with the uni bus, uni LSATs and there

01:31 - 40.804 is, is a

01:31 - 44.432 voting machine or is it just a data read it.

01:31 - 47.077 We believe that concept. I would I would agree with you.

01:31 - 51.615 If it's a machine, it has a moving part in the sense the scanner sucks something.

01:31 - 53.951 And so it has some mechanical aspect to it.

01:31 - 56.320 But not all machines are voting machines.

01:31 - 58.822 All voting machines are machines, but not all machines. Voting machines.

01:31 - 00.157 Do you agree with that?

01:32 - 02.593 I would agree that all of us are voting machines.

01:32 - 04.761 There could be other voting machines that are not Eve's.

01:32 - 07.397 This is the way I would put it and where I was going.

01:32 - 10.400 If you look at point 22, the final point

01:32 - 13.670 and that one is this is an additional method of voting.

01:32 - 16.240 That's what the section says in all positions of this act

01:32 - 17.307 shall be in full force.

01:32 - 20.334 And in fact, unless inconsistent with this article.

01:32 - 21.945 And our position is look,

01:32 - 25.749 the General Assembly didn't repeal of blue pencil out voting machine

01:32 - 27.918 throughout the election code when it enacted this.

01:32 - 29.686 I mean, their position is, look, you have Eve's

01:32 - 33.657 is therefore you can't have voting machines are prohibited.

01:32 - 36.627 Now moving forward. They didn't strike all that out.

01:32 - 39.129 It's still there. It has to mean something.

01:32 - 43.600 And we believe that these machines, these are voting machines.

01:32 - 45.536 When you take it, when you scan it in,

01:32 - 49.797 it tabulates your records, it accepts it, drops it into a box.

01:32 - 52.943 We believe in our position is the word voting machine,

01:32 - 55.445 which again is not defined in the election code,

01:32 - 59.040 is certainly broad enough to encompass that piece of equipment.

01:32 - 02.019 Okay. Thank you, Mr. Joel, for one question.

01:33 - 03.053 Sure.

01:33 - 05.780 So, following up, council, the,

01:33 - 08.859 presumably, these

01:33 - 11.852 technologies would allow,

01:33 - 16.991 or could allow,

01:33 - 20.237 Any number of functions.

01:33 - 21.805 Report generation.

01:33 - 27.578 So just presumably one could take the, the contents of the ballot box

01:33 - 32.173 or the voting machine and say, I want to have a report, generated,

01:33 - 35.810 to tell me how many people voted

01:33 - 38.355 before noon or before 3 p.m.

01:33 - 41.382 or what have you, any,

01:33 - 45.953 kind of thing we would see generated by software available to us now,

01:33 - 49.866 that we're interested in learning, you would maintain necessarily.

01:33 - 54.671 I take it then that any such report generated by the software would

01:33 - 58.976 necessarily be the contents and therefore not open to public inspection.

01:33 - 59.844 Is that right? Yeah.

01:33 - 03.614 Because it would derive from derive it would be contents of.

01:34 - 07.408 So it would originate from derived from that which is in the ballot box.

01:34 - 09.821 All right.

01:34 - 12.356 Not wanting not wanting to jump the gun.

01:34 - 14.591 Are there any are there any other questions?

01:34 - 16.760 I, I stole your thunder by asking, I apologize.

01:34 - 18.895 Oh, no. No, no. You're fine.

01:34 - 20.797 Let's, let's move on then.

01:34 - 23.824 And let Mr. White, bring myself.

01:34 - 27.261 Thank you, Mr. Joe.

01:34 - 29.940 You're going to wrap this up for us, right?

01:34 - 32.109 Very quickly. No, no, there's no hurry.

01:34 - 33.543 We have all day.

01:34 - 36.546 May it please the court, chief Justice Todd,

01:34 - 38.115 honorable justice of the Supreme Court.

01:34 - 39.683 My name is Austin White.

01:34 - 43.310 I'm representing Lycoming County Office of Voter Services.

01:34 - 44.722 Really?

01:34 - 47.948 I just, wanted to touch on, one issue.

01:34 - 51.852 Very briefly that the,

01:34 - 55.632 we've had a lot of talking about information and what's information

01:34 - 58.659 and how is that, you know, as far as what's in the ballot box?

01:34 - 02.129 I, you know, being someone who practices,

01:35 - 05.599 quite a bit of right to know law as opposed to election code work.

01:35 - 09.946 We're always looking at what's a record, what's a public record.

01:35 - 12.973 And as the court has noted quite a few times today,

01:35 - 17.044 the right to know law defers to the election code or defers to other,

01:35 - 21.348 statutes or, as far as whether or not something's exempt.

01:35 - 26.353 But the right to know law, of course, does have two definitions that are pertinent

01:35 - 30.324 the definition of a record and the definition of a public record.

01:35 - 32.602 And I think that those to to myself at least,

01:35 - 34.538 you know, we're always asking as practitioners,

01:35 - 35.440 that's what we're looking at.

01:35 - 37.574 Is it a public record, is it a record.

01:35 - 43.003 And so under the right to know law, the record is defined as information,

01:35 - 46.516 regardless of physical form or characteristics, that documents

01:35 - 50.821 a transaction activity and includes information

01:35 - 54.281 stored or maintained electronically, data processed or image processed.

01:35 - 58.819 And then a public record is a record that,

01:35 - 02.933 for here is not exempt from public

01:36 - 06.393 disclosure under the right to know law or any other federal or state law.

01:36 - 10.498 So with those two definitions, I think that that's,

01:36 - 13.677 sort of an interplay between these two laws

01:36 - 17.047 and that we say, okay, well, we have information which is the content,

01:36 - 19.716 and we're talking about I'm talking about the contents of the ballot box.

01:36 - 22.743 We have the information in, which is the record.

01:36 - 26.113 We have the contents of the ballot box, which are the ballots

01:36 - 29.683 or wherever that information may be under the right to know law.

01:36 - 33.063 It's the record or the information is the record.

01:36 - 36.090 So the information may move from the ballots

01:36 - 41.705 through the scanner and be outputted through into a CVR.

01:36 - 44.074 But it's still that information under the right to know law.

01:36 - 45.308 That's the record.

01:36 - 48.669 And when we look at the, election code

01:36 - 52.115 to see whether or not it's public, the election code says

01:36 - 55.252 the contents of the ballot box is not public.

01:36 - 58.279 So of course, obviously we've been talking about interpreting that

01:36 - 59.756 and what that means.

01:36 - 02.492 But if we were to consider sort of a, I'll say,

01:37 - 06.187 a thought experiment, if the if there was a,

01:37 - 10.333 as part of the the many exemptions in the right to know

01:37 - 13.503 law, section 708, the courts are where there's many of them.

01:37 - 16.206 There's 30 or so.

01:37 - 20.377 If there was one of those exemptions, was the contents of the ballot box

01:37 - 24.538 or voting machines, you know what, what would the award do for that?

01:37 - 29.777 Well, there is actually one other exception under that, under section 708,

01:37 - 32.556 that uses the word contents.

01:37 - 35.883 It doesn't have anything to do with the election code, but it is the,

01:37 - 40.230 the contents of real estate appraisals, engineering or feasibility

01:37 - 43.357 estimates, environmental reviews, audits or evaluations.

01:37 - 45.068 So of course we do run into that

01:37 - 48.662 as practitioners on occasion, people aspects of documents.

01:37 - 53.076 But it's it's in this the the election code says content of the ballot box.

01:37 - 55.312 It doesn't say content of the ballots. Correct.

01:37 - 58.682 But as far as looking for that word, we do see that word

01:37 - 00.350 at least in one other place.

01:38 - 03.486 And we do have quite a number of other exemptions in the right

01:38 - 06.580 to know law as far as medical doc, medical records, things like that.

01:38 - 09.693 But the focus is always on what is the information and

01:38 - 13.029 where does it appear and wherever it appears, it's exempt.

01:38 - 17.458 So in at least in my opinion, I think that that's so, you know,

01:38 - 21.037 it gives a little bit of a different spin on as far as what we're looking at.

01:38 - 23.473 But I'm happy to answer any questions that the court may have

01:38 - 27.034 as far as a Lycoming County specific one about Lycoming County.

01:38 - 28.735 Do you,

01:38 - 34.275 we can we can assume that that you,

01:38 - 38.288 you you are bound by and,

01:38 - 41.315 and agree with Director Layman's,

01:38 - 44.427 letter in the record, in the reproduced record

01:38 - 47.454 that says that the randomization

01:38 - 51.067 quote alleviates the ballot secrecy concerns that I expressed

01:38 - 54.128 regarding the release of the CVR as a public record. Yes.

01:38 - 57.364 So, so your your your entire argument

01:38 - 00.968 distilled is again that this is,

01:39 - 04.271 the contents of a voting machine,

01:39 - 08.809 and, and the contents of a ballot box.

01:39 - 09.787 That's correct. Yes.

01:39 - 15.382 It's working, but just to clear that up a little bit, the, randomization issue

01:39 - 20.230 you're speaking only from the perspective of Lycoming County,

01:39 - 24.467 not as to other counties that may or may not randomize exactly just this time.

01:39 - 26.269 And let me just give a little more information

01:39 - 28.238 because I don't think it was talked about yet.

01:39 - 30.840 As far as the randomization issue came about, in this case,

01:39 - 34.477 one of the one of the primary concerns of director layman at the beginning of

01:39 - 38.281 when this request came in was that there was two pieces of information

01:39 - 39.449 and there's this is in the record

01:39 - 42.609 that can be matched up to determine how people voted.

01:39 - 45.989 I think, McHenry Township was the township.

01:39 - 48.258 That was the example that was used at the hearings.

01:39 - 52.419 And those two pieces of information are the CVR, which at the time,

01:39 - 55.632 Director Layman was under the belief that that was

01:39 - 57.968 the list that people came in and it was in order.

01:39 - 59.502 And so it had every single vote

01:39 - 01.604 that they made that appeared on every single ballot.

01:40 - 05.375 And then the other piece of information was the numbered list of voters,

01:40 - 08.178 which is in the record as well, which is a,

01:40 - 10.880 you know, where they write each person as they walk in the door,

01:40 - 14.508 they put their name down, and they know exactly the order in which people came in.

01:40 - 19.456 And the director, Lehman, believed that it was very likely that people

01:40 - 20.857 on the numbered list of voters,

01:40 - 23.860 which is a public record, which he has to make available

01:40 - 27.297 to people with that information, which anyone could get.

01:40 - 31.058 And the CVR, which if we granted this request, anyone could get,

01:40 - 34.261 you could walk down through and roughly guess

01:40 - 39.233 which one matched up, which CVR entry matched up to which person was.

01:40 - 40.244 Why is that?

01:40 - 42.979 I don't know, because if if there are,

01:40 - 46.707 let's say the first ten people that come in the door in a precinct

01:40 - 51.011 and they walk up to the person who signs them in, they write their name

01:40 - 52.422 and they sign them up.

01:40 - 54.491 That person starts as number one.

01:40 - 55.725 They put their name in the entry.

01:40 - 01.064 They walk over, assuming that the the flow of votes continues

01:41 - 04.091 as you would expect, which each person takes a rough amount of time on

01:41 - 05.835 however many seconds to fill it out.

01:41 - 07.070 And then they put it in the scanner.

01:41 - 11.465 It would then be the first person in is the first number on the CVR.

01:41 - 14.077 I thought they were random and that's it.

01:41 - 16.713 But when when? There's quite a bit of testimony for Mr.

01:41 - 18.081 Lehman on this point,

01:41 - 22.018 because at the time that he testified, he believed he did not believe

01:41 - 24.854 that they were randomized. And that's when that letter came in.

01:41 - 29.592 And and if I may, just because he is in the part right before the part

01:41 - 33.763 I quoted you, he he he says that the wrote the positions

01:41 - 36.599 and wrote numbers are created ten at a time, and the numbers are

01:41 - 40.427 randomly assigned to the next ten voters as they cast their ballots. So

01:41 - 44.174 there's always the potential as Judge Linhart, is it?

01:41 - 46.042 Linhart pointed out. Yes.

01:41 - 48.778 That if you have somebody observing closely

01:41 - 51.805 in either system right there, there could be certain,

01:41 - 56.753 extrapolations for yes, yes, justice.

01:41 - 57.388 Correct. Exactly.

01:41 - 59.756 It was that they they randomized the vendor,

01:41 - 02.058 explained to him, they randomize them in batches of ten.

01:42 - 03.827 So the first ten people gets random,

01:42 - 05.929 the next ten people, those are all mixed together.

01:42 - 07.063 And it proceeds to that.

01:42 - 09.032 But of course clear as and this is in the record

01:42 - 11.968 to clear the clear vote, clear ballot system.

01:42 - 13.536 In Lycoming County.

01:42 - 17.798 I believe at the time that the this hearing was held in 2021,

01:42 - 21.235 there were 8 or 9 of the 67 counties that use it.

01:42 - 25.439 So we could be pretty certain that those 8 or 9 counties,

01:42 - 27.016 that's what's happening there.

01:42 - 29.552 But we have no idea what's happening anywhere else.

01:42 - 30.488 All right.

01:42 - 31.688 Thank you very much.

01:42 - 33.857 Excellent arguments by all counsel.

01:42 - 34.881 We appreciate it.

01:42 - 36.527 The next

01:42 - 40.296 case before the court is in Ray upsets sale tax claim.

01:42 - 43.299 Bureau of Tioga County Martin Oster, Povich

01:42 - 46.326 versus TCB and Timothy Smith.

01:42 - 49.839 This case involves a landowner's challenge to a tax sale,

01:42 - 52.866 which resulted in the loss of his home and real property.

01:42 - 56.646 The tax claim Bureau of Tioga County held the sale in September

01:42 - 00.517 of 2021, due to the tax delinquency of the landowner, Mr.

01:43 - 04.211 Rostropovich, who is the current appellant in this case.

01:43 - 06.055 After the sale, Mr.

01:43 - 09.082 Rostropovich filed objections to the tax sale.

01:43 - 12.886 The successful bidder, Timothy Smith, filed a request to intervene,

01:43 - 16.032 which the Court of Common Pleas granted.

01:43 - 19.059 After briefing, the court sustained the tax sale.

01:43 - 21.771 Mr. Rostropovich then appealed that decision

01:43 - 24.331 to Commonwealth Court, which affirmed the trial court.

01:43 - 27.076 Mr. Astor Povich then filed a

01:43 - 30.437 petition for allowance of appeal, which the Supreme Court granted.

01:43 - 34.441 In doing so, the court framed the questions it wished to address,

01:43 - 38.178 namely whether the lower court aird in affirming the tax sale

01:43 - 42.783 where the sale was approximately 18% of the property's fair market value.

01:43 - 44.928 But the court did something further.

01:43 - 49.499 It directed the parties in their briefs to discuss one of its earlier decisions,

01:43 - 53.069 a 1974 case entitled First Federal Savings

01:43 - 56.096 and Loan of Lancaster versus Swift.

01:43 - 59.809 The importance of that earlier decision to this case is its focus

01:43 - 03.604 on a question of whether a trial court can employ equitable principles

01:44 - 06.840 in deciding whether a tax sale should be overturned.

01:44 - 10.377 The Swift case essentially held that it could not.

01:44 - 12.989 Mr. Asta Povich argues that, along

01:44 - 16.626 with the disproportion between the fair market value of his property

01:44 - 20.330 and the ultimate tax sale amount, the circumstances surrounding

01:44 - 24.091 this matter required the lower courts to apply these equitable principles.

01:44 - 26.636 Among these circumstances, Mr.

01:44 - 30.240 Oster, Povich suggests, or a lack of notice that the tax sale

01:44 - 34.043 was about to occur, along with the constitutional underpinnings

01:44 - 38.181 of one's right to own one's property, and that it cannot be taken

01:44 - 41.208 unless the government acts in a certain way.

01:44 - 43.720 With these thoughts in mind, Mr.

01:44 - 46.589 Ross, to Povich, said the court should have acted in equity.

01:44 - 49.650 In other words, determining what was the fair thing to do here.

01:44 - 53.396 One of the points he makes is that among the things

01:44 - 57.457 that a tax claim bureau must do before it holds a tax sale,

01:44 - 02.038 it must provide notice by mail, by actual personal service,

01:45 - 06.233 and even by posting on the property that a tax sale was about to occur.

01:45 - 09.903 Mr. Astor Povich said that while there was a posting,

01:45 - 14.775 it was posted on a property adjacent to his, not on his actual property.

01:45 - 17.311 That's a question that the court may take up

01:45 - 19.089 the appeals.

01:45 - 23.917 However, stress on the other side that the swift decision from 1974

01:45 - 28.622 makes it clear that when the rights of a party are clearly established by law,

01:45 - 34.194 in other words, by the statute, equity should not change those settled rights.

01:45 - 39.676 In other words, what they are saying is that as this case from 52 years ago

01:45 - 42.078 indicated, the court was correct

01:45 - 45.906 in holding that equitable principles do not apply in a situation like this,

01:45 - 50.219 but instead instead strict compliance with what the terms of the statute

01:45 - 53.613 require should govern what is right and what isn't.

01:45 - 57.293 In this case, those parties indicate that Mr.

01:45 - 00.320 Astor Povich was given all due process rights,

01:46 - 03.423 and thus he has no equitable right to claim.

01:46 - 06.226 Let's hear the arguments and the questions the court may pose.

01:46 - 09.105 May it please the court.

01:46 - 12.265 Madam Chief Justice and associate justices

01:46 - 15.278 of the Pennsylvania Supreme Court and Mr.

01:46 - 16.546 Murphy and Mr.

01:46 - 21.617 Furman, my name is Bill Higbee, and I represent the petitioner,

01:46 - 24.811 appellant in this case, Martin Povich.

01:46 - 29.483 In the, as you as the chief justice indicated,

01:46 - 33.429 in the order granting the petition for allowance or appeal,

01:46 - 37.891 we were all directed to address ourselves to the what I call the Swift case.

01:46 - 41.437 And I'll do that.

01:46 - 42.805 Just very briefly

01:46 - 46.809 about the Swift case, because there are some material facts

01:46 - 51.748 that, exist in that case that are are distinct from, from the US.

01:46 - 53.549 The Povich case.

01:46 - 56.519 In that case, a bank had a mortgage

01:46 - 59.880 on a small piece of property in Lancaster.

01:47 - 03.493 The bank was apparently dealing with the Redevelopment.

01:47 - 06.520 Authority of Lancaster to acquire the property.

01:47 - 10.700 The property became delinquent with regard to real estate taxes.

01:47 - 12.935 The appropriate notices were all given.

01:47 - 15.405 There's no question about that.

01:47 - 19.041 There's also no question about the fact that the bank indicated

01:47 - 23.212 that it received all the notices and was aware of the tax sale.

01:47 - 28.542 However, somebody from the Redevelopment Authority contacted the tax claim Bureau

01:47 - 32.422 and was directed to a list of properties to be exposed for sale,

01:47 - 34.424 and this property was not among them.

01:47 - 38.027 The bank did not appear, the the sale cleared

01:47 - 41.054 the bank's mortgage from the property.

01:47 - 44.934 And about two months later, the bank brought an action in equity

01:47 - 47.160 seeking to set aside the sale.

01:47 - 52.842 Now, the chancellor found in favor of setting the record.

01:47 - 54.177 He found in favor of the bank.

01:47 - 56.679 Supreme court reversed.

01:47 - 59.973 There is something interesting about that case. It.

01:48 - 04.845 If if that case arose today, it would be dismissed on preliminary objections.

01:48 - 08.882 There is a section of the real estate tax law.

01:48 - 12.128 607 gee,

01:48 - 15.889 that it what it says basically is

01:48 - 20.002 you have two options after the tax sale.

01:48 - 24.373 If you seek to challenge it, you can file objections or exceptions,

01:48 - 27.710 which is what was done in this case, and proceed up through the court

01:48 - 33.540 with regard to objections and exceptions, or there is the possibility

01:48 - 39.145 of an action inequity or at law challenging notice only.

01:48 - 44.393 So the what the section says is that after a sale is confirmed,

01:48 - 49.131 there shall not be any further proceeding with regard to the sale in the language.

01:48 - 53.760 You shall not thereafter be inquired into judicially,

01:48 - 57.864 judicially, in equity or by civil proceedings, except with respect

01:48 - 59.876 to the giving of notice.

01:48 - 02.378 So when the legislature says,

01:49 - 07.583 thereafter, no equity actions that suggest to me that in the context

01:49 - 12.212 of the objections and exceptions, there is equitable jurisdiction.

01:49 - 16.917 Now, I've been with this case now for four years or so.

01:49 - 22.756 No, I guess I should apologize.

01:49 - 25.034 I keep losing,

01:49 - 28.604 but in any event, there have been stacks

01:49 - 31.731 of briefs and reproduced records and research.

01:49 - 35.735 Swift is the only case

01:49 - 38.447 that suggests there is any question

01:49 - 42.208 about equitable jurisdiction in the context of a tax or sheriff's sale.

01:49 - 46.355 The only case, and it was not mentioned in this case

01:49 - 51.017 until your honorable court suggested that we are we are to talk about it.

01:49 - 56.022 So I think that's to 1 to 1 extent, you may think what's kind of a

01:49 - 00.594 an odd situation, but the decision itself is split.

01:50 - 04.798 There is an opinion authored by Justice Roberts

01:50 - 08.168 joined in only by one other justice.

01:50 - 11.504 There are two dissents, vigorous dissents.

01:50 - 16.986 There is a concurring opinion by Justice Egan which in which Justice Nixon joins.

01:50 - 21.381 So you have six justices, and you have, two

01:50 - 25.051 who has signed on to this opinion questioning equity jurisdiction.

01:50 - 28.965 The other four make it clear that there is equity

01:50 - 32.492 jurisdiction in the context of these tax appeal cases.

01:50 - 37.306 So I don't think that's necessarily of precedential value

01:50 - 41.534 in terms of the jurisdictional question concerning equitable jurisdiction.

01:50 - 44.013 I ask you a question about the yes.

01:50 - 46.716 How does how does equity,

01:50 - 49.418 how does equal equity

01:50 - 52.846 determine what's adequate and what's not?

01:50 - 56.716 Isn't that what we will we require a market to do?

01:50 - 01.564 I mean, in other words, in if I'm off point here, let me know.

01:51 - 03.432 And maybe I'm missing something.

01:51 - 06.693 Isn't the issue here or part of the issue,

01:51 - 10.697 whether there's a line that we should draw,

01:51 - 13.643 and if that's the case,

01:51 - 16.545 who are we to say what's,

01:51 - 19.572 as a matter of what, constitutionality?

01:51 - 24.444 What a court of equity must deem inadequate?

01:51 - 27.590 I'm not sure,

01:51 - 29.659 where that comes from,

01:51 - 33.053 other than some arbitrary line drawing.

01:51 - 33.730 What?

01:51 - 36.756 What can we tie that to?

01:51 - 40.202 Other than,

01:51 - 44.564 our assumption of when a market has failed as a general rule,

01:51 - 47.967 you know, there's to some extent, I think, of that,

01:51 - 50.646 old, Supreme Court, U.S.

01:51 - 53.673 Supreme Court decision where the justice says

01:51 - 56.976 I can't define pornography, but I know it when I see it.

01:51 - 00.947 In this case, I, I've read these cases,

01:52 - 04.718 you know, Commonwealth Court says, well, 10%

01:52 - 09.422 is a rule that, that we've had courts say 10%.

01:52 - 11.067 Well, to Mr.

01:52 - 15.228 Rostropovich, 10% of his $465,000

01:52 - 18.307 property would would seem wholly inadequate.

01:52 - 21.301 And I think if you ask anybody on the street that question, hey,

01:52 - 24.013 how about 10% of the fair market value of the property?

01:52 - 25.514 Is that an adequate price?

01:52 - 27.216 That person would say, absolutely not.

01:52 - 28.551 That's wholly inadequate.

01:52 - 34.347 Then I see a case that talks about, well, 40% is, sort of okay,

01:52 - 37.326 but that case did not talk about a residence

01:52 - 40.620 that talked about vacant semi commercial real estate.

01:52 - 42.799 And, and

01:52 - 46.226 the Commonwealth Court cases do say that you have to

01:52 - 50.005 you have to make that determination based upon the facts.

01:52 - 51.207 And every case.

01:52 - 56.579 So what's your position as to whether the statutory definition of upsets.

01:52 - 59.281 That was 605.

01:52 - 02.308 Just a plain brick constructed that statute.

01:53 - 05.445 Why should we even get into equitable concerns?

01:53 - 09.082 I think because of the equitable principles,

01:53 - 12.461 because the process is after the sale.

01:53 - 15.464 That sale has to be confirmed by the court.

01:53 - 19.292 So if if we say the court

01:53 - 23.296 in that legislative scheme is nothing more than a rubber stamp,

01:53 - 27.810 here's the sale, here's a petition, rubber stamp, let's all the courts

01:53 - 33.249 function is the consideration, the allegations of tardiness, diligence.

01:53 - 36.185 It's not affected by your client.

01:53 - 38.320 You know,

01:53 - 40.055 this courthouse, we wouldn't be here

01:53 - 43.082 if your client follows with the previous agreements.

01:53 - 46.061 This court has spoken to that exact issue.

01:53 - 49.088 In 1950, as follows.

01:53 - 53.426 Decision of the of this court, in 1950,

01:53 - 55.305 it stated

01:53 - 58.565 we have had occasion before to note that we hold no brief

01:53 - 03.736 with willful, persistent and long standing tax delinquents.

01:54 - 05.614 But at the same time,

01:54 - 09.418 we have also observed that the strict provisions of the real estate

01:54 - 12.445 tax law were never meant to punish

01:54 - 16.358 punish taxpayers who admitted through oversight or error

01:54 - 20.296 to pay their taxes as this that's your position.

01:54 - 23.590 Your client referred as opposed to avoid it

01:54 - 27.160 or renege or didn't show operated file an agreement.

01:54 - 29.705 He he made them equitable.

01:54 - 33.032 This we're not supposed to consider that he made a mistake.

01:54 - 34.945 He made a mistake.

01:54 - 38.447 Your own record is there of that his stolen testimony which

01:54 - 40.449 which the trial court said was not credible.

01:54 - 43.419 Well, what is undisputed

01:54 - 46.922 is that the day of the tax sale, Mr.

01:54 - 50.860 Rostropovich found out about the same sale from a telephone call

01:54 - 53.887 from a realtor friend of his who had attended the sale,

01:54 - 58.234 and the and the testimony of his coworker who was in his landscaping

01:54 - 59.468 truck with him at the time.

01:54 - 00.903 Was that Mr.

01:55 - 03.339 Sipowicz was panicked.

01:55 - 06.008 Not not that he was panicked,

01:55 - 09.712 that he immediately went to his home and acquired the funds to pay his taxes,

01:55 - 13.616 went from there to the courthouse, and was told he was two hours late.

01:55 - 14.774 But but again,

01:55 - 17.119 maybe that isn't disputed,

01:55 - 21.180 but maybe he was panicked because of the game he had been playing.

01:55 - 23.959 He failed to play it the way he'd been playing.

01:55 - 26.428 He missed something. Yeah,

01:55 - 29.455 but the something he was missed was part of the game that he was playing.

01:55 - 34.360 In terms of the word game,

01:55 - 39.742 I look at the list every year of the number

01:55 - 42.745 of properties in Tioga County that are advertised for tax.

01:55 - 46.882 So and it's in the record in this case, those are not evil people.

01:55 - 48.651 They're not negligent people.

01:55 - 52.021 They are a lot of hardworking people who have a difficult time

01:55 - 55.114 paying their taxes on saying, I'm not saying your client is evil.

01:55 - 59.118 I mean, don't don't get me wrong that your client is evil, but this.

01:55 - 02.464 But but, but the point that the trial court

01:56 - 06.626 seemed to be saying is, if you had present if you had presented to the trial court

01:56 - 10.396 evidence that the trial court found credible, that said,

01:56 - 14.343 I'm on, you know, I'm on a fixed income, I didn't have the money.

01:56 - 17.079 I couldn't pay my taxes. This is my family home.

01:56 - 19.682 This is all I have. This is I can't need it.

01:56 - 21.650 I need to be on a I need to be on a payment schedule.

01:56 - 23.676 Please don't sell my house because of X, Y and Z,

01:56 - 26.021 but that's not what was presented.

01:56 - 27.990 At least that's not what the trial court credibly said.

01:56 - 31.918 The trial court said there's a history here of there's a hit of

01:56 - 36.823 of of going to the deadline and in reaching agreements and not making it.

01:56 - 40.235 And the trial court basically said, I just don't believe that

01:56 - 43.238 your client that this is a situation where your client is incapable of playing.

01:56 - 45.541 I believe it's a situation where client's refusing to play.

01:56 - 45.742 Okay.

01:56 - 49.445 So as as this court, as this court said in 1950,

01:56 - 52.381 we're not going to hold that against a tax.

01:56 - 54.216 You're asking for equity.

01:56 - 57.276 And in this case, he requires clean hands.

01:56 - 01.223 Well, clean hands is a concept of doing something wrong.

01:57 - 03.225 A wrongful or deliberate act.

01:57 - 05.661 He deliberately didn't pay his taxes.

01:57 - 08.688 And it was kind of incredible

01:57 - 12.158 with with regard to testimony concerning notice. Yes.

01:57 - 16.362 There was no question about his testimony that this is all he had, that

01:57 - 21.801 this is his lifetime earnings and he's a 12 hour a day landscaper, 77 years of age.

01:57 - 23.779 That's unquestioned.

01:57 - 27.716 Now he the the the, the trial court did not did not do him

01:57 - 29.151 credible as far as testimony

01:57 - 32.779 concerning personal service and and some of those items.

01:57 - 38.418 But the decision of this court would in 1950, you would say

01:57 - 43.156 we're talking about a forfeiture which equity abhors a forfeiture.

01:57 - 46.735 And if this is an a fortune or I don't know what a forfeiture is, okay.

01:57 - 49.571 Could we move on to the adequacy of the sale price?

01:57 - 52.598 There's no question that the price was

01:57 - 56.235 in excess of the asset sale.

01:57 - 01.641 It was a price is total of the taxes due and the

01:58 - 06.288 the fines, penalties, claims that go along that go along with that.

01:58 - 10.225 There's no question that the sale price was in excess of that.

01:58 - 11.660 Correct.

01:58 - 16.856 It was the the tax due for 2019 was 2200 some dollars.

01:58 - 21.561 And then because of some 2020 or 2020 taxes

01:58 - 24.964 and a small lean, it was about $7,000.

01:58 - 26.608 Was the upset okay.

01:58 - 31.080 So the fact that that the the sale price was approximately

01:58 - 34.707 15% of the market value

01:58 - 39.354 is what you're alleging, but your argument is inadequate.

01:58 - 42.157 And as a matter of equity, we should look at that.

01:58 - 44.259 Could you elaborate on that?

01:58 - 48.154 Yeah, I, I don't know how to elaborate on it other than to say,

01:58 - 54.036 Any person,

01:58 - 57.063 any person, any reasonable person,

01:58 - 59.842 if asked about fair market

01:58 - 03.011 value eight afford a $65,000 property.

01:59 - 05.380 I've been offered,

01:59 - 07.082 $83,000 for it.

01:59 - 10.109 Is that adequate? Well, it's it's is it

01:59 - 15.982 isn't that up to the people who appear pursuant to notice to bid on the property?

01:59 - 21.096 I mean, that's what the value is on that day is who whatever it's bid at.

01:59 - 25.834 I mean, this could have gone auction style up to $1 million if that was the value.

01:59 - 30.172 Those people who were interested in this tax sale showed up, so to speak.

01:59 - 33.666 So again, I don't understand what rule of law

01:59 - 38.671 you could fairly ask us to generate that would that would

01:59 - 41.683 declare by fiat

01:59 - 44.911 a percentage that is adequate or inadequate.

01:59 - 47.956 I suppose you want us to maybe you want us to license

01:59 - 51.160 trial courts to just say what's inadequate.

01:59 - 55.288 So that would mean the the views of equity

01:59 - 59.892 would vary greatly among the Common Pleas judges about, about,

02:00 - 02.371 percentages of, of

02:00 - 05.398 fair market value would be fine.

02:00 - 08.601 You know, justice,

02:00 - 11.580 I've been in a lot of courts over the years that I've heard

02:00 - 14.607 a lot of arguments made to trial judges about,

02:00 - 18.544 for example, reasonableness in the context of contract cases

02:00 - 22.682 or wholly inadequate in the context of this case, or.

02:00 - 24.826 Yeah, that's what judges do.

02:00 - 27.863 What's a reasonable sentence under the circumstances?

02:00 - 29.431 That's what trial judges do.

02:00 - 31.366 But that's that's not what

02:00 - 34.927 that's not what trial courts do with commercial transactions.

02:00 - 38.497 They look at what a willing buyer

02:00 - 42.644 on the day of the sale was willing to pay for the property.

02:00 - 44.413 That was $83,000.

02:00 - 47.583 That's why there's a presumption that that price is

02:00 - 51.587 in fact, the, actual value of the property. Why?

02:00 - 52.921 Why is that incorrect?

02:00 - 55.481 I speak to that issue of presumption in my brief,

02:00 - 57.926 the presumption that

02:00 - 02.698 the price bid at the tax sale is the highest available

02:01 - 06.435 at the tax sale, having nothing to do with fair market value.

02:01 - 09.938 But once that presumption is challenged by evidence at fair market value,

02:01 - 11.240 it falls there.

02:01 - 15.134 That presumption no longer exists when the fair market value is shown,

02:01 - 18.371 and it was shown in this case by a licensed certified appraisal.

02:01 - 22.375 So I mean, the primary issue here is whether gross inadequacy

02:01 - 26.288 of the price alone is sufficient to set aside corruption.

02:01 - 30.349 Said yes since the test was created by the court,

02:01 - 33.986 what would you suggest if we were to accept your argument?

02:01 - 38.791 What standard should we, how would you define our decision

02:01 - 41.827 to make a gross inadequacy?

02:01 - 44.574 If I were a judge,

02:01 - 47.600 and thank goodness I'm not required to be a terrible one, but,

02:01 - 51.537 I just a suggestion that perhaps should be

02:01 - 56.351 a court would begin by analyzing the individual and the property.

02:01 - 58.220 What? You know, what kind of what's going on here?

02:01 - 00.188 What's the value of this property?

02:02 - 02.791 Maybe it looked at who appeared at the sale.

02:02 - 04.626 This is seller toga County.

02:02 - 05.894 2 or 3 people show up.

02:02 - 09.622 And because these newspaper ads, to these sales,

02:02 - 13.835 I represented the Tioga County clerk's came real for 25 years.

02:02 - 15.928 I know something about these tax sales.

02:02 - 20.700 But trying to get to your question,

02:02 - 25.204 given all the circumstances in this case, and based upon

02:02 - 28.407 one particular case, I read,

02:02 - 32.912 I would have to think if the bid were 50% of fair market value,

02:02 - 36.515 the court would be hard pressed to to set that aside.

02:02 - 41.087 But when you start getting down to, what, 20 to 18?

02:02 - 42.864 Boy counsel?

02:02 - 45.567 I've been at multiple upset sales.

02:02 - 47.169 At sheriff sales,

02:02 - 49.571 when you're conducting a sheriff sale or the person is conducting

02:02 - 52.341 the sheriff sale or the upside sale, you don't know the fair market value.

02:02 - 55.344 All you know is the amount that's due, either on the mortgage

02:02 - 58.371 that's foreclosed on or on the taxes that are going on.

02:02 - 01.283 If you're presiding over a tax sale or an upset sale,

02:03 - 03.018 you don't have the benefit of an appraisal.

02:03 - 04.986 You don't have somebody coming in saying,

02:03 - 08.381 we only have $10,000 in taxes, but this is $1 million property.

02:03 - 12.260 All you have are the people that are there willing to bid on the property,

02:03 - 14.029 which establishes the market value.

02:03 - 16.965 In this case, however, how would we

02:03 - 18.333 how would we direct the

02:03 - 21.069 the individuals who are purchasing or conducting the sheriff sales

02:03 - 24.430 or the upsets in order to make that determination that you're asking for?

02:03 - 27.509 For example, in this case,

02:03 - 30.636 the, Tioga County Assessment Office,

02:03 - 35.074 which is part and parcel of the Toga County Tax Claim Bureau,

02:03 - 38.553 has in its possession the assessment records with regard

02:03 - 42.448 to this property and a picture of the home, the acreage

02:03 - 46.285 and its own knowledge of the value of what's the assessed value?

02:03 - 48.231 Clean and green

02:03 - 51.266 assessed value 126 or $28,000.

02:03 - 51.667 So what?

02:03 - 54.827 It's all for $126,000 would be what we be standing here.

02:03 - 57.372 I don't know.

02:03 - 58.341 Listen, that's the problem.

02:03 - 01.076 The county, I mean, just being honest, judge.

02:04 - 03.912 I rounded up the assessed value. That's why I just said it.

02:04 - 08.340 Yeah, well, you I'm just trying to explain that they did had information

02:04 - 12.745 concerning what this property consisted of in its value prior to the sale,

02:04 - 17.783 but counsel and and what onus does that put on anyone

02:04 - 21.253 I mean, I'm sorry, what onus would that put on.

02:04 - 24.766 The auction, the conduct of the auction.

02:04 - 27.569 I mean, everything that, in the record on

02:04 - 31.072 this case suggests that proper notice was given.

02:04 - 33.408 The auction was,

02:04 - 37.470 took place in an ordinary and reasonable fashion, and there was a result.

02:04 - 42.141 I mean, there's nothing I mean, we would be really writing

02:04 - 45.644 a new what takes place in these circumstances

02:04 - 51.326 if we were to suggest that, that someone has to take a look at the assessed value

02:04 - 55.621 and get a fair market value in advance, it's just not what the statute requires.

02:04 - 59.191 But I think the safety valve is the confirmation by the court,

02:04 - 02.170 because when it reaches that point,

02:05 - 07.008 the the homeowner is must have found or exceptions.

02:05 - 08.944 So that issue has been brought

02:05 - 12.471 to the attention of the trial court before the sale is confirmed.

02:05 - 16.852 I'm not suggesting that the tax claim Bureau needs to go out and say it was fair

02:05 - 20.155 market value and deal with all that, but certainly the trial court, when it gets

02:05 - 24.192 to the point of confirming a sale and it has the information as to fair

02:05 - 27.953 market value in its possession and say, we're just not going to confirm this.

02:05 - 28.598 Oh, wait a minute.

02:05 - 31.622 Let me ask you if I can follow up. Let me just understand your position. So,

02:05 - 33.668 I certainly

02:05 - 38.831 the legislature could write a statute or amend the statute here and say,

02:05 - 42.868 such confirmation shall not occur if the, if the,

02:05 - 47.673 if the sale was made less at less than x percent of the last.

02:05 - 51.453 FMV. So, but we don't have that here.

02:05 - 54.456 So, you, you essentially

02:05 - 57.483 are arguing that I guess for the, the court

02:05 - 01.120 to declare that

02:06 - 03.698 on some equity principle,

02:06 - 06.692 the trial judges are empowered to,

02:06 - 11.664 interject their own,

02:06 - 16.244 reasonableness assessment of the market.

02:06 - 21.283 And I guess my question is, absent a demonstrated market failure.

02:06 - 25.754 So which would, I think correspond to failure to comply with the statutory

02:06 - 30.849 terms or a demonstration that somebody was not allowed into the auction or,

02:06 - 34.462 you know, some other governmental restraint or fraud

02:06 - 38.667 or whatever, absent some demonstrated market failure. Why?

02:06 - 39.691 We're not

02:06 - 41.503 mounted

02:06 - 44.906 to assess that that was what the market was going to pay that day

02:06 - 49.201 for that property, because I just don't know what our,

02:06 - 52.414 how we can draw a line anywhere else here.

02:06 - 56.084 But at that point, the trial court would have before it the exception,

02:06 - 58.653 an objections filed by the landowner.

02:06 - 59.555 So the court.

02:06 - 03.782 But if if, for example, in this case, before the sale was approved,

02:07 - 07.052 the trial court had RF sections

02:07 - 10.289 objections and exceptions with the appraisal knowing the value

02:07 - 14.093 that's the that's an adversarial process at that point.

02:07 - 18.974 The you know, factually, after the sale, the landowner

02:07 - 22.134 must be notified of the fact of the sale and the bid amount.

02:07 - 26.538 And that's what triggers then filing the exception, objections and exceptions,

02:07 - 29.618 you appear before the judge with those objections and exceptions.

02:07 - 33.579 And if the judge says, Holy cow, for 65,000, just one more thing

02:07 - 34.290 that, if I may.

02:07 - 39.785 So in that circumstance that your client or people similarly situated they that

02:07 - 42.230 they have all the notice the

02:07 - 46.191 statutes been complied with, they have the opportunity to redeem

02:07 - 51.006 and they fail to redeem that you want you want the next step.

02:07 - 55.200 You want them also to have the opportunity to make an equity plea to the judge.

02:07 - 58.771 I don't have the money, but this just isn't fair.

02:07 - 02.675 And that's, I think, your argument, if I'm if I'm right about that,

02:08 - 06.121 what's the rule that you want us to declare

02:08 - 09.148 that, that, that courts can use in this Commonwealth?

02:08 - 11.693 Maybe if you're taking

02:08 - 16.731 $2,000 of value from me, you know, that's that stuff.

02:08 - 17.999 That's life.

02:08 - 23.195 But if you're taking $400,000, the embodiment of my life work,

02:08 - 26.708 property under the fifth and 14th amendment to the United States.

02:08 - 28.610 Constitution, you're taking.

02:08 - 30.669 You're taking my property from me.

02:08 - 34.383 Then I think

02:08 - 37.419 a court has to say, wait a minute.

02:08 - 40.879 We can put everybody back to the status quo

02:08 - 44.750 by either pay the tax or

02:08 - 47.662 continue the sale to a later date.

02:08 - 50.823 Give the bidding, person back his money.

02:08 - 53.401 Everybody's kind of left for the art. The taxes get paid.

02:08 - 55.437 That's the purpose of this is to pay taxes.

02:08 - 56.738 Yeah, but counsel, that's not.

02:08 - 59.507 That's not your remedy under the statute.

02:08 - 00.809 The only thing that would happen

02:09 - 03.836 if you prevail here is that there'd be another sale.

02:09 - 06.314 The statute is clear.

02:09 - 09.818 If the objections are sustained, it sells invalidated

02:09 - 14.346 and the court orders another sale. Yes.

02:09 - 18.593 You don't get to pay the taxes and walk on and say, oh, well, that's taken care of.

02:09 - 21.854 Well, another sale that gives the person the opportunity to pay the taxes.

02:09 - 24.933 It's not a court order to pay the taxes, but but it returns

02:09 - 26.801 people to the status quo.

02:09 - 30.095 And that's what Justice Pomeroy was saying in his dissent, is,

02:09 - 33.975 you know, given give it all of the equities,

02:09 - 36.544 equitable principles at play,

02:09 - 39.571 a bull ring of forfeiture, balancing equity,

02:09 - 42.617 that your court

02:09 - 43.952 I'm I'm confusing it.

02:09 - 47.479 I'm I'm confused on the facts now in terms of what your client is, I probably am

02:09 - 49.057 your client panicked.

02:09 - 49.658 The client.

02:09 - 52.327 The client panicked, right. They heard about the sale? Yes.

02:09 - 54.395 The day of the sale, they heard about the day of the sale.

02:09 - 58.633 Your client then goes in and tries to redeem, tries to pay his taxes.

02:09 - 01.469 You went in with the money to pay. Is that a redemption?

02:10 - 03.071 No. Redemption is a term of art.

02:10 - 06.574 It used to be the case that after that, after a tax

02:10 - 09.878 sale, you had a period of time to go in and steal receipts, right?

02:10 - 13.472 But they eliminated that redemption and substituted personal service.

02:10 - 14.683 Okay.

02:10 - 16.417 So so there's no rate as you're saying.

02:10 - 19.120 Oh, there's no redemption. There's no right to it. He was told he was coming.

02:10 - 19.789 That's what I thought.

02:10 - 24.416 So, so so your client wanting to pay the taxes after the sale, it happen. Yes.

02:10 - 27.328 And and that was rejected. Correct.

02:10 - 31.023 And now if, according to Justice Donahue, let's say you win,

02:10 - 33.668 they would schedule another sale. Correct.

02:10 - 35.570 And you're saying that will

02:10 - 39.331 now give your client another opportunity presale to pay the taxes?

02:10 - 41.976 Correct. And why do you say that?

02:10 - 44.012 Because that's not what the statute says.

02:10 - 49.117 Said the court shall order another sale of the property in conformity with the act.

02:10 - 50.976 I guess your client could buy that. Well, in.

02:10 - 52.821 Well, yeah.

02:10 - 53.622 I'm sorry.

02:10 - 57.616 It says in conformity with the act which gives the person right to pay their taxes.

02:10 - 00.195 There'd be no sales. He paid his taxes.

02:11 - 05.166 Well, I think what we're what we're ignoring here is the, process

02:11 - 09.170 that was utilized and the fact that your client

02:11 - 13.165 did have notice, even though he denied it,

02:11 - 18.136 the trial court found him not to be credible on that matter.

02:11 - 21.373 And, found he did have notice.

02:11 - 25.954 So that seems to be a controlling factor

02:11 - 28.981 here.

02:11 - 32.060 Justice Pomeroy.

02:11 - 35.888 Yeah, I keep pointing to the dissent, but I told him doing,

02:11 - 39.791 Justice Pomeroy said it, in his dissent.

02:11 - 43.362 The same argument was made in the Swift case that goes back.

02:11 - 44.373 You're negligent.

02:11 - 48.033 You rely on what some third party told you about this tax sale.

02:11 - 52.547 And, actually, Justice Pomeroy was it's

02:11 - 56.341 not is to said it's a 1939 decision of this court,

02:11 - 58.987 holding that

02:11 - 02.114 the injustice and hardship which will be suffered by plaintiff

02:12 - 05.760 a for afford grounds for granting equitable relief

02:12 - 08.763 upon the fundamental principle that no one shall be allowed

02:12 - 12.391 to to enrich himself unjustly at the expense of another.

02:12 - 16.261 And that interjects this notion of unjust enrichment, which I do not.

02:12 - 17.739 I've not talked about counsel.

02:12 - 21.600 I mean, I think you pointed out a lot has happened statutorily since Swift.

02:12 - 26.047 And I actually do think banks who hold mortgages are now required

02:12 - 27.682 to get notice of tax.

02:12 - 29.851 Well, they were in swift.

02:12 - 33.554 Only the bank, just the one of the finding was the bank had notice of that sale.

02:12 - 35.657 Right. So yeah, they were there.

02:12 - 38.326 Oh yeah. So we've always had the bank would get notice.

02:12 - 39.061 Would we get a notice.

02:12 - 41.296 And probably we say I couldn't bring the Swift code.

02:12 - 43.031 We have to notify all lead holders. Right.

02:12 - 45.991 Because they can bring the claim back. Okay. So

02:12 - 50.738 in terms of,

02:12 - 53.765 notice, I'll just be brief on this because

02:12 - 58.637 one of the Commonwealth court cases says, you know, you don't get to this issue of,

02:12 - 03.976 inadequacy unless there are irregularities in the process.

02:13 - 07.846 And we have pointed out that in this particular case,

02:13 - 11.717 the law requires that there be two mailed

02:13 - 14.853 notices of the tax in

02:13 - 18.423 one by certified mail, with the return receipt requested,

02:13 - 22.804 the other actually requiring the signature of the property

02:13 - 26.798 will both cards will return unsigned in this case.

02:13 - 29.911 So the evidence for the tax claim Bureau was

02:13 - 34.773 that this Rostropovich did not receive those statutorily required

02:13 - 38.910 mailed notices, plus a notice posted on his driveway.

02:13 - 41.489 Well, that's my next question.

02:13 - 45.326 The statute says the property to be exposed for

02:13 - 48.353 sale shall be posted,

02:13 - 51.990 not the property next door, not the neighbor's property,

02:13 - 55.761 not a property down the street, but the property to be sold.

02:13 - 00.074 It is undisputed in this case, that the little poster that was

02:14 - 04.069 stuck in the ground on the metal snake in the weeds was on the neighbor's property.

02:14 - 06.247 Mr. House to prove it. So test?

02:14 - 08.249 I thought it was at the end of the driveway.

02:14 - 11.376 It was at the end of the driveway, but on the neighbor's property, it

02:14 - 15.456 it was not a driveway, but it was actually on the neighbor's property.

02:14 - 17.959 Was that in evidence? I apologize. Yeah, it's in the evidence.

02:14 - 21.095 I absolutely mistrust of what we testified to at three different times.

02:14 - 22.630 And it's not been challenged.

02:14 - 24.966 And, you know, we don't retry facts in this court.

02:14 - 30.729 I mean, the trial court, I think it would be clear that had the court found

02:14 - 34.509 that you lacked that your client lacked notice,

02:14 - 36.477 this would be entirely it wouldn't be here.

02:14 - 38.613 But but the court found notice.

02:14 - 41.582 So we're not here to argue about the fact.

02:14 - 45.077 I mean, we're here to argue about the legal standard.

02:14 - 48.547 And I guess if if your argument were to prevail,

02:14 - 52.460 then by hypothesis,

02:14 - 57.422 we would be upending the law of applies to car auctions or,

02:14 - 01.126 I mean, there'd be no principled distinction, would there?

02:15 - 06.674 If my car is repossessed and it goes to auction and I have notice, you know,

02:15 - 11.703 I have notice of auction, you know, I can go buy it out of repo, right.

02:15 - 15.450 Your client, the trial court found he had notice

02:15 - 18.477 he could have cured the deficiency and bought it at sale.

02:15 - 20.455 He didn't.

02:15 - 23.424 So I'm not sure how your argument

02:15 - 28.820 for an extra layer of protection based on some reasonable standard,

02:15 - 32.357 wouldn't apply to all kinds of market situations

02:15 - 35.136 in our in our economy.

02:15 - 38.473 Well, in the case of repossession, there are remedies available

02:15 - 42.276 even after the repossession in terms of the value received at the auction.

02:15 - 42.978 And I mean,

02:15 - 46.271 there are procedures that can be followed by both the creditor and the debtor.

02:15 - 51.176 But with regard to what's been achieved at the auction, same as sheriff sales.

02:15 - 54.789 But again,

02:15 - 57.782 with all due respect, we're not talking about cars or,

02:15 - 01.162 online sales or anything.

02:16 - 02.530 We're talking about.

02:16 - 04.465 We're talking about,

02:16 - 07.301 constitutionally protected equity in property.

02:16 - 11.439 But certainly following that theory, if what is the remedy

02:16 - 14.432 that you're requesting that we've reversed and remand,

02:16 - 17.311 that you reversed and find

02:16 - 19.981 and set the sale aside,

02:16 - 24.018 and then we would have to remand so that there would be further proceedings

02:16 - 28.956 consistent with the sale being let's hypothetically follow through in 2021

02:16 - 33.285 that same property was assessed at $103,000,

02:16 - 36.721 with, I should say, it was,

02:16 - 40.659 appraised at 103, but assessed at only 76,000,

02:16 - 45.463 which means your client on remand received more money than it's,

02:16 - 49.601 assessed value.

02:16 - 51.445 How does that advance?

02:16 - 53.548 You okay? You on remand?

02:16 - 57.242 First of all, the fair market appraisal was 465,000.

02:16 - 57.653 Right.

02:16 - 03.357 The assessor not appraisal, but the county assessment at clean

02:17 - 08.429 and green assessment, which is a fraction of a fair market value for 2021.

02:17 - 09.453 It was,

02:17 - 12.667 appraised for only 103.

02:17 - 15.303 Correct. No assessed, not appraised.

02:17 - 18.330 There's a distinct difference.

02:17 - 19.308 Right.

02:17 - 22.834 It was assessed at that for for purposes of the clean and green statute.

02:17 - 23.745 Right.

02:17 - 27.272 I thought the assessment was 76 nine.

02:17 - 33.154 The appraised was 403, a substantial decrease

02:17 - 36.181 from its original for 63.

02:17 - 40.194 That's what I gathered from my reading your record.

02:17 - 44.489 And I'm just asking you because I'm thinking it was worth more

02:17 - 46.434 in the beginning.

02:17 - 49.103 But by 2021, that property

02:17 - 53.331 was only appraised for $103,000.

02:17 - 58.703 And yet the assessed value was $76,930,

02:17 - 02.641 which was less than the price obtained at the sale.

02:18 - 05.877 Okay, so if we were to put this through remand

02:18 - 09.080 and the court has to judge gross inadequacy,

02:18 - 12.417 your client made more money,

02:18 - 15.930 then what would happen on remand?

02:18 - 17.598 Your client, but not the client.

02:18 - 21.435 The client would make more money than what the property's assessed for.

02:18 - 24.396 Not appraised. Assessment has almost nothing to do with

02:18 - 26.174 an upset.

02:18 - 31.169 Sam, I'm just trying to follow through your logic as to the remedy

02:18 - 34.639 that you could get from us is will reverse it and remand it.

02:18 - 35.183 Correct.

02:18 - 41.112 Tell me if, based upon that 2021 assessed and appraised value,

02:18 - 45.559 which is substantially less than what it was initially appraised

02:18 - 48.586 for, proves that it's not.

02:18 - 49.698 How do you argue?

02:18 - 53.167 Gross inadequacy if, on remand,

02:18 - 56.194 a judge finds that to be credible and says, hey,

02:18 - 00.031 I just,

02:19 - 03.201 I would suggest to you.

02:19 - 08.049 Being a Cuyahoga County resident and being incredibly familiar

02:19 - 11.076 with these properties and the tax claim bureau process,

02:19 - 14.579 that if this matter were remanded,

02:19 - 18.659 this property would have a value of it, far in excess of a half million.

02:19 - 21.762 Now, with all due respect, sir, I'm only going go on.

02:19 - 24.789 What I obtained from the record.

02:19 - 25.767 Okay, that's

02:19 - 28.469 what you're talking about is assessment, which again, has nothing to do.

02:19 - 30.161 Appraised and assessment.

02:19 - 33.741 I was just trying to tease it out,

02:19 - 36.835 but if we were to prove it, you prove correct.

02:19 - 38.379 You want us to reverse

02:19 - 42.707 and remand to have this a value again corrected gross inadequacy.

02:19 - 43.951 He would pay his taxes.

02:19 - 46.287 Mr. Smith would get his 83,000.

02:19 - 47.388 That's follow through.

02:19 - 50.191 We remanded in 2025.

02:19 - 52.993 Does the information however you want to define it?

02:19 - 56.321 The appraisal and the assessed value from 2021.

02:19 - 59.333 Isn't that to be considered?

02:19 - 01.936 You know, it would be then fair market value

02:20 - 06.164 if there were going to be another sale in 2025 or 2027 or whatever,

02:20 - 09.910 you would have to do another appraisal, a certified appraisal, the fair

02:20 - 11.379 market value of the property.

02:20 - 15.106 And you're saying that it okay with this rule, that question.

02:20 - 16.852 Yes. Okay.

02:20 - 19.553 I think we understand your argument. Mr..

02:20 - 20.788 Who does anyone have?

02:20 - 23.491 Oh, yes, we do have another question. Yes.

02:20 - 24.525 No worries.

02:20 - 26.660 I'm going to talk not about gross inadequacy,

02:20 - 29.563 but one of the argument you you raise an argument about.

02:20 - 32.333 Notice that piqued my interest.

02:20 - 36.094 You claim that the property posting

02:20 - 39.273 was not posted on the property, correct?

02:20 - 43.577 Okay, so I, I just pulled up the opinion of the trial court's findings of facts,

02:20 - 47.238 and the trial court only finds that the property was posted

02:20 - 50.642 and looks to joint exhibit ten,

02:20 - 53.087 which I also have up.

02:20 - 54.488 Unfortunately, I have a color copy.

02:20 - 56.524 It's not that great.

02:20 - 59.026 So I guess my question is,

02:20 - 02.053 did your client object,

02:21 - 04.265 file an objection to the sale

02:21 - 07.559 because the property was not posted? Yes.

02:21 - 09.770 Meaning the property was not posted? Yes.

02:21 - 13.731 We we filed when we followed our objections and, exceptions,

02:21 - 17.802 we filed a broad statement that the provisions

02:21 - 20.981 of the statute with regard to notice were not complied with.

02:21 - 24.809 I understand when you went to the trial court and you had the hearing. Yep.

02:21 - 30.415 Did you say, that's not my property that's posted, gets photos over and over again?

02:21 - 32.593 Okay. And you're saying, in fact, I spoke with Mr.

02:21 - 35.696 Furman about engaging a surveyor to confirm that fact.

02:21 - 40.067 And because my understanding of the law is strict

02:21 - 43.995 compliance with the notice requirements and posting is particularly, yes,

02:21 - 46.740 results in the set of a side of the sale.

02:21 - 49.804 So what happened, what the trial does the trial court doesn't didn't make it.

02:21 - 51.212 That's not a credibility issue.

02:21 - 55.440 I was asked earlier about the fact that this court is not a fact finding court,

02:21 - 59.420 especially when a fact is found, as the trial court

02:21 - 01.789 did in this case, that the property was posted.

02:22 - 05.759 Those facts are only to be affirmed if they're based upon

02:22 - 06.794 some credible evidence.

02:22 - 10.731 There is no evidence in this record that this property property was posted.

02:22 - 11.799 Thank you. None.

02:22 - 14.826 And this law is that even if you have personal service,

02:22 - 18.038 if there's invalid posting, the sales invalid.

02:22 - 21.709 Well, and the reason for that is because people who see an advertisement for a tax

02:22 - 25.470 sale are driving by the property to see which property is posted for tax, right?

02:22 - 26.981 People show up and bid

02:22 - 29.917 well, not just that, but they'll drive by the look for the sign.

02:22 - 31.819 Oh, this is the property that is listed.

02:22 - 33.888 This is the one I'm going to be bidding on. Okay.

02:22 - 35.656 Thank you so much for your attention.

02:22 - 37.258 Okay. Thank you sir. What sir?

02:22 - 39.651 Another question okay. Thank you so much.

02:22 - 44.131 Please proceed to

02:22 - 47.158 the honorable and distinguished judges, the Supreme Court of Pennsylvania.

02:22 - 50.962 I'm John Murphy, representing the

02:22 - 54.032 appellee, the buyer of the property,

02:22 - 57.502 Timothy Smith.

02:22 - 00.614 I'm going to give you a short

02:23 - 03.641 analysis of our position.

02:23 - 06.678 He got a really good deal right.

02:23 - 12.359 We've agreed with Attorney Furman to divide up the argument.

02:23 - 15.386 I'm going to be taking the part with regard to.

02:23 - 19.533 Inadequate inadequacy of consideration.

02:23 - 22.994 Attorney Chris Furman, on behalf of the Tyler County Tax Claim Bureau.

02:23 - 26.698 It's going to be taking the argument with regard to notice.

02:23 - 33.271 The tax sale took place September 24th,

02:23 - 36.517 2021.

02:23 - 38.886 The Tile County Courthouse.

02:23 - 42.146 My client, Timothy Smith, attended

02:23 - 46.660 and the sale took place in the normal course of business.

02:23 - 49.687 There was no irregularities.

02:23 - 52.600 There was a large crowd on hand.

02:23 - 54.058 There were multiple bidders.

02:23 - 59.797 The bidding started at the.

02:24 - 03.811 Upset price, which was the taxes that were due.

02:24 - 06.838 Attorney he be talked about previously.

02:24 - 09.516 It was a good crowd that day.

02:24 - 12.644 The bidding went back and forth between multiple bidders.

02:24 - 16.047 There were 40, 50, 60 different changes

02:24 - 19.217 in the bid price until

02:24 - 23.287 my client, Timothy Smith, was the successful bidder.

02:24 - 26.624 The amount of $83,000.

02:24 - 30.495 At that time and

02:24 - 33.540 under the.

02:24 - 36.276 Real estate tax sale,

02:24 - 40.981 the legal title passed to the Tyler County Tax Claim Bureau.

02:24 - 44.676 Equitable title passed to my client, Timothy H.

02:24 - 47.745 Smith and

02:24 - 50.190 the appellant

02:24 - 53.217 managed to and was left with neither

02:24 - 56.988 actual title or legal title.

02:24 - 59.034 Shortly

02:24 - 02.060 thereafter, his attorney, he explained

02:25 - 04.738 the appellant, Martin J.

02:25 - 07.765 Smith, objection to the tax sale.

02:25 - 11.736 As part of that objection, they produced a appraisal

02:25 - 15.215 for purposes of litigation,

02:25 - 19.977 not for purposes of resale solely for purposes of this litigation.

02:25 - 23.548 And the objection.

02:25 - 26.126 They were bringing to the Court of Common.

02:25 - 29.153 Pleas to set aside the tax sale.

02:25 - 40.364 We have an analysis I'd like to present to the court

02:25 - 43.401 about this tax sale.

02:25 - 48.282 The appellant argues

02:25 - 51.309 that the fair market value should be

02:25 - 55.680 taken as $465,000.

02:26 - 03.087 Ignores the fact that.

02:26 - 06.557 The price.

02:26 - 09.727 At tax sale is deemed to be,

02:26 - 12.539 fair market value

02:26 - 14.641 when the tax sale is carried out

02:26 - 17.835 in the regular course of business, and there's no irregularities.

02:26 - 21.873 And multiple bidders show up that have an interest in the property,

02:26 - 25.343 and there's no suppression of the bidding process.

02:26 - 30.848 The best proof of the fair market value

02:26 - 32.459 is the sale price.

02:26 - 33.827 At the time.

02:26 - 36.196 Place the day of the tax sale.

02:26 - 38.923 When multiple bidders decide what to

02:26 - 41.769 bid and what

02:26 - 44.762 the price of the property should be, because

02:26 - 46.874 the buyers

02:26 - 48.709 take all the risk.

02:26 - 51.011 They take the risk that

02:26 - 53.847 there are title problems.

02:26 - 56.383 They take the risk that the property does not exist.

02:26 - 00.545 The Tax Filing Bureau makes no guarantees that the existence of the property

02:27 - 03.590 or the title to the property,

02:27 - 07.218 or the condition of the property, the buyer takes all the risk,

02:27 - 09.596 counseled you.

02:27 - 12.032 Would you concede

02:27 - 15.059 that there could be.

02:27 - 20.407 I hate to use the word irregularity, but let's just use it

02:27 - 23.401 for there could be an irregularity that occurs

02:27 - 26.914 that causes the faith

02:27 - 32.877 or trust in the amount bid at the auction

02:27 - 36.514 to, become questionable.

02:27 - 39.560 For example,

02:27 - 42.620 if someone who purchases the property

02:27 - 48.335 wants to purchase the property goes around and identifies

02:27 - 53.664 people who are also interested and pays them off not to come. Or

02:27 - 55.844 apropos to the

02:27 - 58.870 last question I asked your opposing counsel,

02:27 - 03.050 the Tax Claim Bureau posts, the puts a posting on the wrong property,

02:28 - 06.119 not the property that's going to be sold, but the wrong property.

02:28 - 08.155 And people look at the wrong property and say, I'm not.

02:28 - 09.156 I'm not bidding on that.

02:28 - 11.992 They don't show up.

02:28 - 15.262 Can you can you fathom those types of irregularities

02:28 - 18.289 actually impacting the presumed,

02:28 - 22.293 market value generated at a sale?

02:28 - 26.473 At a public sale,

02:28 - 30.477 the market value is the high bid.

02:28 - 32.346 The closing bid.

02:28 - 36.173 If a person that had an interest in the real estate

02:28 - 39.543 does not show up, that doesn't affect the validity of the sale.

02:28 - 42.980 As long as it's a public sale properly advertised.

02:28 - 46.050 And I'm asking you if there was a if there's a manipulation

02:28 - 49.253 of that public sale, if there's some

02:28 - 54.268 something that happens that causes that not to be a true public

02:28 - 59.339 sale of willing, willing buyers and willing, you know, willing purchasers

02:28 - 03.610 or something like that, that that makes the sale itself suspect. Yes.

02:29 - 05.345 I understand your question.

02:29 - 08.973 If there was some irregularity or something

02:29 - 12.119 that suppressed the bidding process,

02:29 - 15.146 then your point would be well taken.

02:29 - 19.726 In this case, there's no proof that any of the bidding was suppressed

02:29 - 24.255 or there were any hearing irregularities that caused the bid price

02:29 - 28.693 to be any less than $83,000, which was the final price.

02:29 - 31.495 But what about the claim about the property not being posted

02:29 - 36.267 there? All.

02:29 - 41.806 Yes. Your honor.

02:29 - 43.451 What about it?

02:29 - 48.021 I mean, you listed the the claim is that the property that the neighboring property

02:29 - 51.749 was posted, that this posting sign did not occur here on this property.

02:29 - 55.753 Attorney Furman will handle all the questions with regard to notice.

02:29 - 58.899 Okay. You don't have a position.

02:29 - 00.701 I defer to Attorney Furman.

02:30 - 03.728 We've divvied up the argument between

02:30 - 09.233 the inadequacy of price issue that the appellant is raising

02:30 - 11.912 and the notice issue that's going to be handled by.

02:30 - 13.747 Let me ask the question of the Chris Furman.

02:30 - 15.248 Let me ask you the question in a different way.

02:30 - 19.052 Would you agree that if the actual property up for sale

02:30 - 22.613 is not posted, but a property adjacent is posted,

02:30 - 26.360 that potential buyers might be impacted by that?

02:30 - 28.195 Look at one and say, yeah, I'm not buying that.

02:30 - 29.779 So the one that's actually up for sale.

02:30 - 35.569 That's a possibility.

02:30 - 38.596 But in this case, the

02:30 - 40.640 trial court determined that

02:30 - 43.667 the property was properly posted

02:30 - 47.538 in June of 2 to 2021,

02:30 - 51.375 three months before the September tax sale.

02:30 - 57.157 So, counselor,

02:30 - 00.151 could you share with us what is it that you want us to do?

02:31 - 03.888 For I know that there be a.

02:31 - 07.091 I. Sorry, I couldn't hear that, Your honor,

02:31 - 09.536 that you share with us that.

02:31 - 11.538 But I would like you to put on the record.

02:31 - 14.565 Please tell us what you want us to do for your.

02:31 - 17.411 Do you believe it should just be a for profit

02:31 - 20.438 information that will.

02:31 - 26.620 I'm sorry I couldn't hear that question.

02:31 - 29.647 Are you asking us to just affirm the Superior Court decision?

02:31 - 32.926 Commonwealth court decision. Excuse me?

02:31 - 36.063 Is that the remedy you're asking for just across the board?

02:31 - 37.297 Affirmative.

02:31 - 40.000 Okay. Yes, attorney Furman will handle that.

02:31 - 42.059 I'm just going to talk about the price. Okay.

02:31 - 44.539 All right.

02:31 - 47.407 I think we understand,

02:31 - 49.676 are there any other questions?

02:31 - 52.379 Yeah, I do okay.

02:31 - 54.181 What is your position with regard to the price?

02:31 - 57.208 I don't believe you shared with us

02:31 - 58.819 our position with regard

02:31 - 01.846 to the price is that the

02:32 - 05.258 sale price of $83,000

02:32 - 09.787 was the fair market value of the property

02:32 - 14.267 at the time and place of the tax sale on September

02:32 - 17.394 24th, 2021.

02:32 - 20.798 Yes, it was it.

02:32 - 23.810 So at your position, the 18% is

02:32 - 27.171 the standard that is applied for upsets.

02:32 - 30.741 Our grossly inadequate anything above 18%.

02:32 - 34.388 Because

02:32 - 37.414 right now we don't have which by case basis.

02:32 - 40.760 I'm inquiring is if that's what you're requesting a continuation

02:32 - 45.022 of a case by case basis as the case or one of the other cases indicated

02:32 - 48.068 where you were asking us to establish

02:32 - 50.561 a strict construction of 605

02:32 - 53.074 yes. With regard

02:32 - 56.109 to the inadequacy of price

02:32 - 59.136 and this percentage,

02:32 - 03.583 this percentage comes from a appraisal

02:33 - 06.610 that was prepared for litigation,

02:33 - 09.956 the amount of $468,000.

02:33 - 12.392 But the trouble with that

02:33 - 14.694 is that the

02:33 - 18.122 intervenor, Timothy Smith, introduced

02:33 - 22.135 a second appraisal from the Tile.

02:33 - 25.162 County Assessment Office

02:33 - 27.407 in his petition to intervene, showing

02:33 - 32.770 that the appraised value of the property was $103,220.

02:33 - 37.184 Can you can you explain something to me?

02:33 - 39.052 52 a mr.

02:33 - 42.255 Murphy, an appraisal office or an assessment office?

02:33 - 43.823 Does assessments.

02:33 - 46.560 I'm I'm unclear as to,

02:33 - 49.629 how you got an appraisal out of an assessment office.

02:33 - 52.656 Do they do both? Do they,

02:33 - 56.260 determine assessments and appraisals?

02:33 - 59.873 The assessment there

02:33 - 02.900 of Commonwealth of Pennsylvania requires that the

02:34 - 08.205 assessment for tax purposes be at fair market value,

02:34 - 11.751 but an assessment never

02:34 - 15.746 is actually the same number as the fair market value assessed.

02:34 - 19.226 This assessment was done some

02:34 - 22.253 years prior to the tax sale

02:34 - 26.032 by the Commonwealth Department of Revenue.

02:34 - 29.059 Has a common law, a common

02:34 - 32.806 conversion ratio, to bring it up to date.

02:34 - 36.476 The conversion ratio for the year of the tax

02:34 - 40.604 sale 2021 was 1.72.

02:34 - 46.543 So to convert that appraisal from the Tail County Assessment Office

02:34 - 52.182 to fair market value for real estate tax purposes,

02:34 - 58.732 I take the appraisal of $103,220 times the common level

02:34 - 03.627 conversion ratio of 1.72, and get a.

02:35 - 07.274 Fair market value

02:35 - 12.136 of $177,538.40.

02:35 - 16.206 Does that appear as if the tax sale, excuse me,

02:35 - 21.578 does that appraisal take into consideration any

02:35 - 26.192 factors, such as Marcellus Shale

02:35 - 29.219 value of property in Tioga County,

02:35 - 32.823 whether the property had a beautiful stream running through it,

02:35 - 37.804 whether the fields were utilized to raise and produce

02:35 - 41.708 something that was sold at market, or any of those type of factors.

02:35 - 45.169 Consider it in the appraisal that you're talking about.

02:35 - 51.075 The appraisal for

02:35 - 55.479 the assessment office of town, County

02:35 - 58.649 is taken into account.

02:35 - 00.760 All the various factors,

02:36 - 04.698 all the various pluses and minuses of a property

02:36 - 08.659 when compared to comparable properties across the county.

02:36 - 12.339 The purpose of it is to equalize

02:36 - 14.841 the fair market value for tax purposes.

02:36 - 17.901 So nobody pays too much, nobody pays too little.

02:36 - 21.981 They would go out and then have a, an oil gas assessment

02:36 - 25.609 on each property before they put the appraisal value in the book.

02:36 - 28.054 Yes. County tax. Yes.

02:36 - 30.256 Yes, they do that.

02:36 - 33.751 Yes. They actually have appraisers that go out and do that.

02:36 - 38.489 And those appraisers are determined by the county commissioners.

02:36 - 42.993 Can I just follow up on that on those questions or

02:36 - 46.196 I just want to understand your position.

02:36 - 51.978 Regardless of what the

02:36 - 54.681 the county authorities projected,

02:36 - 57.975 the value is or was or would be,

02:37 - 01.188 is it your

02:37 - 04.214 position that the fair market value is whatever

02:37 - 08.419 the highest willing buyer was willing to pay on that day of the sale? Yes.

02:37 - 10.397 And and,

02:37 - 13.767 presumably the next day or the day before, a different buyer

02:37 - 15.001 might have walked in and,

02:37 - 18.037 and might have been the highest bidder at a higher or lower number.

02:37 - 19.072 Right.

02:37 - 20.073 That's that's right.

02:37 - 24.978 It's there's not a fixed percentage that, that we could declare

02:37 - 28.138 under those circumstances because the fair market value

02:37 - 30.617 was the highest bid on the day of sale.

02:37 - 31.452 Yes. Right.

02:37 - 34.478 Yes. Okay.

02:37 - 36.724 Okay.

02:37 - 39.359 All right. Thank you very much, Mr. Murphy.

02:37 - 40.327 Let's hear from Mr.

02:37 - 43.320 Furman.

02:37 - 55.508 Just checking to see if it's afternoon yet.

02:37 - 59.203 I ten chief justice and honorable justices of the court.

02:37 - 01.548 May it please the court? My name is Chris Furman.

02:38 - 04.751 I represent the Tioga County tax claim bureau, but I'd like to

02:38 - 07.987 do is address at least one of the outstanding questions

02:38 - 12.258 that was deferred to me first, which has the microphone up a little bit.

02:38 - 13.450 Oh, sure. Kind of tall.

02:38 - 15.729 Thank you.

02:38 - 18.932 Regarding the issue of the posting, and this is the only reason

02:38 - 21.959 I'm bringing this up here is to quote this part,

02:38 - 24.337 the posting on the property.

02:38 - 25.839 Well, first of all,

02:38 - 29.909 the the trial court already determined that all the posting was was proper.

02:38 - 32.412 All the notice, requirements were met.

02:38 - 37.007 It made a specific credibility determination regarding the posting.

02:38 - 41.387 No, no, not not a credibility determination regarding the posting.

02:38 - 44.915 It just made a determination that all of the notice requirements were were met

02:38 - 48.394 with was made a general.

02:38 - 51.331 You made a general, finding

02:38 - 55.359 that the property was posted and then it cited joint exhibit ten.

02:38 - 59.897 Justice Roberts the issue of whether the property itself is posted

02:39 - 02.041 is not the requirement under the law.

02:39 - 04.177 The rental says the property has to be posted with.

02:39 - 05.545 The Commonwealth Court has said that

02:39 - 08.169 the law is and this is what I brought this up for. I never listen.

02:39 - 15.788 A section 600 to.

02:39 - 19.783 E3 does not mean that the method of posting must be reasonable.

02:39 - 22.795 Oh, it means that method of posting must be reasonable and likely

02:39 - 26.490 to inform the taxpayer of an intended real property sale.

02:39 - 30.627 Not that the posting was specifically on the property subject to sell,

02:39 - 36.476 and that was in in re tax sale of 2003 upset 8682d 1184.

02:39 - 39.479 Commonwealth court 2004 that that

02:39 - 43.049 well well, I'm going to go back and look at best case guy in that case.

02:39 - 48.679 And I think what I'm going to find is that not that posting the property

02:39 - 51.491 that the property was such that by posting it,

02:39 - 54.661 it wouldn't have given the notice to the property owner.

02:39 - 57.497 So they had to post it in a way that the property owner would see it,

02:39 - 00.233 which required them to post it on somebody else's property,

02:40 - 04.227 which is actually what the circumstances in this case, which is what,

02:40 - 06.706 the poster

02:40 - 10.000 Evelyn Lockman testified to in her deposition, Mr..

02:40 - 14.271 Usta, his property, his home is not visible from the road.

02:40 - 15.815 Here's a very long driveway.

02:40 - 17.517 Driveway comes out and hits the road.

02:40 - 18.018 So, Mr.

02:40 - 21.254 Laughlin has to put pays to put this notice in into place.

02:40 - 24.424 That's going to be visible and noticeable by the public that you can see it.

02:40 - 28.061 It's supposed to be conspicuous at the end of the driveway where Mr.

02:40 - 29.095 Austin Povich

02:40 - 32.189 testified and confirmed that, yes, this is where you enter my property.

02:40 - 35.001 I turn left, I go in there, and this is how you get in.

02:40 - 37.837 There are no other houses around. There's only one driveway.

02:40 - 42.408 She put the posting on the corner of the driveway, that is, and it was conspicuous.

02:40 - 43.576 It was visible to the public.

02:40 - 46.803 Anybody driving by that property now, you're not going to.

02:40 - 49.973 It's not as if you have the posting on the wrong door.

02:40 - 51.217 I understand what you're arguing.

02:40 - 54.244 You're conceded and the record will bear it out

02:40 - 56.956 that the sign was posted on someone else's product.

02:40 - 58.458 Oh, correct. There's no question about that.

02:40 - 01.618 I don't dispute that easement driveway or something.

02:41 - 02.896 No, no.

02:41 - 04.797 The property that

02:41 - 07.824 the property line in the driveway or just right next to each other.

02:41 - 10.536 So when you turn in and you go up the driveway,

02:41 - 12.605 the neighbor's property is right next door.

02:41 - 15.575 But it's not a situation where you have the wrong house posted.

02:41 - 19.603 It's not like you have 802 posted instead of 804 next door to each other,

02:41 - 21.814 you have the driveway of the entrance to the house

02:41 - 24.283 that's being posted that is being put for sale.

02:41 - 25.284 That's what I was doing.

02:41 - 26.919 It was on somebody else's property.

02:41 - 29.322 I suppose they could have been posting that person's property.

02:41 - 32.416 Well, the thing is, if you see a posting

02:41 - 35.561 and there's no house and you want to know what property is,

02:41 - 36.996 you have to go up and look at it.

02:41 - 38.955 You can't see what it is. Vacant land

02:41 - 40.868 you can post to look at land.

02:41 - 44.270 Sure. Yeah, but but but in this case, Mr.

02:41 - 48.174 Rostropovich, his property was for sale, so you had to post it in someplace

02:41 - 49.542 that was conspicuous.

02:41 - 51.611 Conspicuous was at the end of the driveway.

02:41 - 53.046 And the Commonwealth court's already said

02:41 - 54.847 it doesn't have to be on the property itself.

02:41 - 56.749 It just has to be conspicuous.

02:41 - 58.551 I'm just I'm just trying to tease this out

02:41 - 01.578 because it was something that he said that I found very interesting.

02:42 - 05.091 And I look at the Commonwealth Court case that you said, because you agree

02:42 - 07.927 that it was your obligation to prove strict compliance posting.

02:42 - 08.529 Agreed.

02:42 - 11.464 And I did. Okay.

02:42 - 13.566 By my simple, my simple question

02:42 - 16.593 is from a sale perspective,

02:42 - 20.530 what told someone driving by that driveway

02:42 - 24.668 that what is being posted is the house up the driveway,

02:42 - 28.171 and not the actual property where the sign is posted at?

02:42 - 29.672 Well,

02:42 - 30.617 justice.

02:42 - 33.019 The there's no line.

02:42 - 34.554 There's no property line.

02:42 - 38.115 So somebody driving by that sees the posting at the end of the driveway,

02:42 - 41.194 why would you think that it wouldn't be the house

02:42 - 43.529 that's at the end of the driveway? Why would you think it would be?

02:42 - 45.164 Because it's at the end of the driveway.

02:42 - 48.067 Is there a driveway to the neighbor's house?

02:42 - 50.369 No, it's just the neighbor.

02:42 - 54.941 Get to the well, these are big pieces of land, Mr.

02:42 - 57.410 Rostropovich. His piece is 52 acres.

02:42 - 01.938 So his driveway comes down, somewhere in the middle of his of his lot.

02:43 - 04.784 It's not. These aren't houses next door to each other.

02:43 - 06.919 This isn't like I'm going to pull into the neighbor

02:43 - 09.422 the same driveway to get to their respective.

02:43 - 10.680 No, it's vacant land.

02:43 - 13.126 I don't I don't know if it's vacant land.

02:43 - 15.294 I've never seen anything. It could be vacant land.

02:43 - 17.463 I don't know if there's a house on that piece of property.

02:43 - 18.998 What's for sale? Yes.

02:43 - 21.934 So the notice identifies the property in terms of.

02:43 - 22.935 Correct. Okay.

02:43 - 24.003 So that's the best.

02:43 - 25.171 Yes. Yeah.

02:43 - 27.006 So just like I said, that's the best.

02:43 - 30.033 Just like I said, if you see the posting and there's no house,

02:43 - 31.144 you have to go up and look at it.

02:43 - 33.846 You would have to look at the posting and see okay, correct.

02:43 - 36.482 What particular tax parcel number is being sold.

02:43 - 37.583 Correct.

02:43 - 41.387 To say, well, there is a copy of it

02:43 - 44.414 in the record. Yes.

02:43 - 50.329 And there's a statutory requirement, let's see,

02:43 - 53.356 where would that be from?

02:44 - 01.007 There's an index here.

02:44 - 02.151 So I should just go to that.

02:44 - 11.417 I mean, I can't field report 64.

02:44 - 14.420 I know the photocopies are terrible.

02:44 - 17.447 Says.

02:44 - 24.387 Just as props and page 65 A

02:44 - 27.457 is a copy of what the posting is.

02:44 - 30.771 Can you read it?

02:44 - 32.038 But that's, Wait a minute.

02:44 - 33.906 We might be on the wrong side.

02:44 - 36.933 Yeah, I'm on the wrong side.

02:44 - 00.724 Well.

02:45 - 03.236 Might,

02:45 - 07.264 you know, there is a copy of the actual,

02:45 - 10.676 reproduction of what is posted in the record.

02:45 - 12.445 Six is an 87, right?

02:45 - 15.472 We should see that.

02:45 - 20.019 87 and 88.

02:45 - 21.320 Okay. Yes.

02:45 - 22.155 So there are two.

02:45 - 24.690 One is one is bright orange and one is bright green,

02:45 - 27.960 which you can't see on those terrible black and white photographs.

02:45 - 30.830 But it looks like the poster there.

02:45 - 31.798 And there are two

02:45 - 34.767 I don't have the record and I don't have the record in front of me.

02:45 - 36.669 Could you sure.

02:45 - 42.032 It looks like this just read, but it says parts that tell me what what is for sale?

02:45 - 45.735 Tioga County Tax claim Bureau and then in big bold

02:45 - 49.472 40 point letters notice of public tax sell

02:45 - 53.276 to all owners of property described in this notice and all persons having

02:45 - 57.447 tax liens and judgments where municipal claims against good properties.

02:45 - 00.426 Notice is hereby given that the Tax Claim Bureau in

02:46 - 04.764 and for the County of Tioga, under and by the authority of the provisions

02:46 - 10.670 of the act of 1947, Public Law 1368, etc., known as the Real Estate Tax.

02:46 - 14.497 So law as amended that the Bureau that the said Bureau

02:46 - 17.801 will expose that public sale in the main courtroom.

02:46 - 19.245 I don't know if you need all that.

02:46 - 19.813 You just want to know

02:46 - 23.406 that it gets to the scription and it says addressed to Martin.

02:46 - 27.787 Martin as the Povich Martin J 210 Plank road delinquent tax

02:46 - 32.658 year 2019 and prior year, which it was 2018 and 2019 I think Mr.

02:46 - 34.026 Heavey said 2020 earlier.

02:46 - 36.028 But it's 2018 and 2019.

02:46 - 41.634 Parcel number 2503.00013,

02:46 - 45.295 a small 000, and the address location.

02:46 - 48.641 That's next location 210 Plank Road

02:46 - 51.510 acres 52.77.

02:46 - 52.534 And then there's a.

02:46 - 56.649 Oh description which is,

02:46 - 00.176 drawing, detached dwelling, detached garage and outbuildings.

02:47 - 03.813 And then it has deed book volume.

02:47 - 05.992 Control number.

02:47 - 10.387 And the amount the and the upset price is listed at 74, 65,

02:47 - 13.990 which is now when we get to the really the meat of the issue here

02:47 - 17.837 is the real estate tax law says the upset sale price.

02:47 - 21.231 The upset price is what the taxes are owed plus the costs.

02:47 - 25.044 If you get that price, there's no issue of

02:47 - 29.773 what is a grossly inadequate price unless you're arguing about the notice.

02:47 - 33.652 Well, this is this goes to the notice because the only reason

02:47 - 36.922 we get to a grossly inadequate price is if there is an irregularity

02:47 - 41.017 in the process, then we do not have an irregularity in the process.

02:47 - 44.320 So as long you can see this is this is interesting.

02:47 - 45.387 You can see

02:47 - 48.200 the idea that

02:47 - 52.838 grossly inadequate price could set aside a sale if there was some irregularity

02:47 - 56.232 that impacted the integrity of the of the, of the auction.

02:47 - 58.277 Well, what what the law says,

02:47 - 02.072 if there's an irregularity in the process that affected the sale price.

02:48 - 04.884 So for example, the example that you brought up earlier,

02:48 - 07.987 if the posting was on, you know, if you do had two houses

02:48 - 10.790 and you posted the wrong one and somebody not knows what to go to,

02:48 - 12.458 the price would be definitely an irregularity.

02:48 - 14.260 You wouldn't, you wouldn't need

02:48 - 16.562 you wouldn't need grossly inadequate because of failure.

02:48 - 17.797 For you to strictly comply with the notice

02:48 - 19.331 requirements is enough to set aside this.

02:48 - 22.068 Well, any other irregularity that would affect the sales price

02:48 - 25.304 paying off potential bidders or for example, they put the wrong number

02:48 - 29.299 on the upset price or for example, again would be a defect in the notice

02:48 - 32.402 or if they well, whatever it is, whatever, I don't know.

02:48 - 35.915 We're talking hypothetically, whatever irregularity there is

02:48 - 38.017 that would affect the sales price is what Mr..

02:48 - 39.085 He has to show

02:48 - 42.712 would happen for us to get to the question of a gross, inadequate price.

02:48 - 46.025 Are you saying you you agree that should be the law?

02:48 - 47.617 Are you saying that is the law

02:48 - 49.395 okay.

02:48 - 49.663 Yeah.

02:48 - 52.722 Oh, that and that and, Justice Pomeroy, dissent.

02:48 - 57.060 This is interesting because he actually makes a mistake in his dissent.

02:48 - 01.498 The fact of the of, of the case is that the

02:49 - 05.602 employee of the Redevelopment Authority

02:49 - 08.047 went to the tax claim Bureau

02:49 - 11.174 and asked for the upcoming sales, and he got the wrong one.

02:49 - 13.719 In Justice, Palmer voiced dissent.

02:49 - 17.123 He doesn't say that it was the Redevelopment Authority employee.

02:49 - 20.917 He says the tax claim bureau gave the wrong information.

02:49 - 24.063 Now that if it were true, if it was true that the tax lien

02:49 - 27.233 bureau did give the wrong information and they did it negligently

02:49 - 31.470 or however it was, that might be a defect that would allow that would depress

02:49 - 33.339 the would be an irregularity

02:49 - 37.467 such as notice it would be some extraneous thing that happened beyond

02:49 - 40.803 strict compliance with notice requirements that affected the sale.

02:49 - 44.607 I agree, but what's interesting is the is his dissent.

02:49 - 47.720 If that if that had said correctly

02:49 - 50.723 or if it had accurately stated

02:49 - 55.327 that the Redevelopment Authority employee gave the wrong price.

02:49 - 57.530 I don't think we're even having this discussion.

02:49 - 01.791 I don't think that he had to say that in his dissent to have the dissent.

02:50 - 05.528 He had to say that to have the irregularity, to get past

02:50 - 09.308 the what the wrestle says, the pretzel says you're upset.

02:50 - 10.743 Price is your price.

02:50 - 13.937 All the 67 tax claim bureaus in this state,

02:50 - 15.381 that's what they operate on.

02:50 - 17.016 It's been going on for decades.

02:50 - 19.218 If we now suddenly say, hey guys, you know what?

02:50 - 22.779 You have to get, you have to get a certain value or these are done.

02:50 - 24.924 We're upsetting decades.

02:50 - 26.292 I don't know, I don't know how long they've been doing

02:50 - 30.095 it, at least decades of how these tax bureaus have been doing it.

02:50 - 31.031 How are they going to do it?

02:50 - 34.033 How are they going to go out and and come in?

02:50 - 36.068 You're going to come in and say, here's the upset sale price.

02:50 - 37.803 You guys need to pay us what the taxes are.

02:50 - 40.830 Oh, and by the way, if we don't get the certain magic number,

02:50 - 43.809 we're not going to sell it to, you know, the tax.

02:50 - 47.346 The tax the law says won't get paid and the taxes won't get paid,

02:50 - 48.447 which is the point tax.

02:50 - 52.242 Silva says if you don't get the upset sale price, it doesn't get sold.

02:50 - 56.246 And the next year you can petition to go to a judicial sale and sell it for you.

02:50 - 59.482 Okay, we were told you were going to argue about notice and you're

02:50 - 02.628 telling us that the notice was sufficient.

02:51 - 05.497 There were no irregularities in the posted notice.

02:51 - 06.299 Correct.

02:51 - 10.135 And regarding the mailed notices, and Mr.

02:51 - 11.737 Hibiscus, they were returned, right?

02:51 - 12.672 They returned?

02:51 - 14.440 Yes. So the

02:51 - 18.368 the ritual requires you to send certified returned receipt, requested mail.

02:51 - 20.570 The Ratzel also contemplates

02:51 - 21.780 that.

02:51 - 22.315 I say that right.

02:51 - 23.582 I feel like I misspoke,

02:51 - 27.343 but the Russell also contemplates that it's not going to be signed for in return.

02:51 - 29.121 And in that instance,

02:51 - 32.358 the statute tells us what to do and what it says is you send it

02:51 - 35.885 first class mail with a proof of mailing, which is what we did.

02:51 - 37.730 So we did step one.

02:51 - 40.232 We sent it certified mail, return receipt requested.

02:51 - 41.600 It came back unsigned.

02:51 - 46.362 We did what the statute told us to do next, which is send first class mail with,

02:51 - 48.674 proof of mail.

02:51 - 50.976 We also have to,

02:51 - 54.537 personally serve because it is an owner occupied property.

02:51 - 58.317 We had, Palmetto posting go and serve him.

02:51 - 01.287 She tried three times the testimony is in the record.

02:52 - 04.723 We deposed her for use of trial, and the court determined that that was

02:52 - 08.217 a credible, that that witness was credible and that he was served.

02:52 - 09.786 We also have,

02:52 - 12.097 the posting,

02:52 - 15.034 which, as we've discussed, those are those are the four

02:52 - 16.068 those are the four requirements

02:52 - 19.095 that we have to do under the under the rule for notice.

02:52 - 23.075 And just because it was on the other side of the property,

02:52 - 26.402 one doesn't make that a defective, notice.

02:52 - 29.648 And the testimony was that was at a location.

02:52 - 31.183 The posting was at a location

02:52 - 35.287 that was, conspicuous and obvious to the public at large.

02:52 - 36.889 And the owner,

02:52 - 39.916 if they had posted the home, no one would have seen it,

02:52 - 42.728 because correct yourself was at the end of the driveway

02:52 - 45.698 that no one would ever see if they were driving.

02:52 - 46.533 Yeah. That's correct.

02:52 - 49.601 And that is what Miss Loughlin's testimony was, why she decided

02:52 - 52.745 to put it there, because she had to put it somewhere conspicuous to the public.

02:52 - 54.140 All right.

02:52 - 55.708 Any other questions?

02:52 - 57.276 Thank you all very much.

02:52 - 00.179 We'll take it under advisement.

02:53 - 03.082 The next case is whether Holst versus McKelvie.

02:53 - 06.485 And it involves a question regarding the statute of limitations

02:53 - 09.621 and its applicability to a sexual violence protective

02:53 - 12.648 order, or SVO.

02:53 - 16.328 In 2018, the appellant, Kristen Whether Holst, filed a petition

02:53 - 19.698 in the Court of Common Pleas of Lebanon County under the Protection

02:53 - 22.725 of Victims of Sexual Violence and Intimidation, An Act.

02:53 - 26.796 Seeking a Sexual Violence Protection Order, or SVO.

02:53 - 31.777 Miss whether Hulse alleged that she suffered previous acts of sexual violence

02:53 - 35.304 or intimidation against her in 2009 or 2010,

02:53 - 38.550 committed by appellant McKelvie,

02:53 - 42.121 the court granted the petition and issued a three year SVO,

02:53 - 45.148 which expired in January 2021.

02:53 - 47.393 In August 2022, Miss.

02:53 - 50.796 Whether Hulse again sought an SVO, Mr.

02:53 - 53.956 Mcelveen counsel argued that the act provides a six year

02:53 - 56.993 statute of limitations for issuance of such orders,

02:53 - 00.272 and that the date which triggers this limitation is the date

02:54 - 03.599 of the alleged initial sexual violence or intimidation.

02:54 - 05.278 According to Mr.

02:54 - 10.482 McElwee, this was 2009 or 2010, at least a dozen years prior to Ms..

02:54 - 13.509 Whether Hull's August 2022 petition.

02:54 - 17.856 The trial court rejected this argument and granted the SVO,

02:54 - 21.017 which was docketed in January 2023,

02:54 - 26.489 Mr. McKelvie appealed to Superior Court, which reversed the Court of Common Pleas

02:54 - 29.701 and found that since the original act of sexual violence

02:54 - 33.062 or intimidation occurred in 2009 or 2010,

02:54 - 37.133 no act of additional sexual violence or intimidation, as alleged,

02:54 - 40.503 could have occurred within the six year statute of limitations.

02:54 - 42.248 This weather horse

02:54 - 45.741 filed a petition for Allowance of Appeal, which the Supreme Court granted

02:54 - 49.712 is whether Holt argues that the Superior Court aired

02:54 - 53.091 when it held that the six year statute of limitations commences

02:54 - 56.552 when the original acts of sexual violence or intimidation occur,

02:54 - 59.832 and not at a later date, when acts or circumstances

02:54 - 02.692 demonstrate a continued risk of harm to the victim.

02:55 - 07.139 She noted that the General Assembly's stated purpose in passing

02:55 - 10.943 the act was in part designed to protect victims from future

02:55 - 14.112 interactions with an offender, and that commencing the statute

02:55 - 18.307 of limitations as a Superior Court held was contrary to this intent.

02:55 - 20.686 For his part, Mr.

02:55 - 23.889 McKelvie argues that the act does not create a never ending

02:55 - 26.883 unlimited right to obtain and SVO.

02:55 - 30.796 He notes that under the act and within the statute of limitations

02:55 - 35.167 as recognized by Superior Court, a victim can receive protection

02:55 - 39.328 with a three year SVO, and that if circumstances demonstrate

02:55 - 43.599 a continued risk to the victim, the SVO can be extended.

02:55 - 47.513 He also notes that there is no limit to the number of extensions

02:55 - 52.041 which may be granted, and points out that in this case, the initial SVO

02:55 - 56.212 and the later SVO were issued well beyond the six year period

02:55 - 57.991 is. Whether holds, for

02:55 - 02.785 her part, argues that perhaps someone, a perpetrator, were jailed

02:56 - 07.232 and held a sentence of six years or more during that time.

02:56 - 09.801 There would be no need for an SVO.

02:56 - 12.337 The question then is once that person is out,

02:56 - 15.331 if there is a continued, then risk to that victim,

02:56 - 18.844 according to the Superior Court's determination of the statute

02:56 - 23.873 of limitations, that victim would be unable to obtain the SVO.

02:56 - 28.177 Let's hear the arguments from the parties and the questions the court may pose.

02:56 - 30.490 Thank you, Your Honor.

02:56 - 32.558 Good afternoon, Justice Tod.

02:56 - 36.452 Chief justices, Kelly Kramer, on behalf of the appellant,

02:56 - 41.767 what we're asking the court to do here is overturn the Superior Court's

02:56 - 46.562 ruling that the six year default statute of limitations applies to the first prong,

02:56 - 51.000 which is the date of the sexual violence or the sexual intimidation.

02:56 - 55.113 And I think what's key here to look at is the plain language

02:56 - 59.408 and the legislative intent of the general Assembly's findings here.

02:56 - 04.413 The Superior Court holding here does not follow the legislative intent,

02:57 - 08.117 because when you examine what that intent is,

02:57 - 12.898 the findings specifically declare that the intent is to protect victims

02:57 - 17.560 of sexual violence and intimidation from future interactions with their offender.

02:57 - 22.264 What would what would the limit be, then, if we if we agreed with you, if,

02:57 - 26.569 the intimidation occurred, you know, one

02:57 - 31.774 at a point in time and 20 years later, the offender,

02:57 - 34.853 somehow,

02:57 - 36.989 surfaced and,

02:57 - 38.824 the victim felt threatened.

02:57 - 40.859 Would there be any limit?

02:57 - 43.061 Well, the limit in that type of situation

02:57 - 46.798 would be six years from that act.

02:57 - 50.268 20 years later, whatever that act or event was that caused

02:57 - 53.271 the victim to fear a continued risk of harm.

02:57 - 56.532 So the victim would then have six years from that point

02:57 - 58.744 to bring an action under this act.

02:57 - 02.347 So every subset Quinn Act would be viewed

02:58 - 06.108 as a new act from which the six years would run.

02:58 - 07.452 That's correct, Your Honor.

02:58 - 11.323 And going back to I believe that's clear from the findings

02:58 - 14.350 here, when they're stating that the point of this law

02:58 - 18.688 is to protect victims from these future interactions with their offender,

02:58 - 22.434 because we have many situations, and I think they're laid out very well

02:58 - 25.237 in the amicus brief that was filed in this case,

02:58 - 30.032 real life situations where offenders, particularly when they're incarcerated,

02:58 - 32.844 they're incarcerated, they can't have contact

02:58 - 36.014 with the victim, ideally, and they get out,

02:58 - 40.686 they're released from incarceration, and they start contacting the victim,

02:58 - 44.780 or they at least have access at that point to make contact with the victim.

02:58 - 48.093 And a victim at that point would want to know that they have

02:58 - 51.096 this act there to provide them with some relief.

02:58 - 52.120 Relief from what?

02:58 - 55.867 From happenstance, contact?

02:58 - 58.861 From a risk of harm

02:58 - 02.098 based upon a happenstance contact.

02:59 - 02.809 Correct.

02:59 - 06.144 And particularly in situations where, you know,

02:59 - 09.872 in this case here, the appellants, the

02:59 - 15.444 the offender here, he has a lifetime no contact through a criminal case.

02:59 - 19.782 So all he has to do is not have contact with this one person.

02:59 - 23.295 And if you look at this case here, he's had continuous contact

02:59 - 26.422 with her for several years, for over a decade.

02:59 - 29.434 So correct me if I'm wrong.

02:59 - 32.461 At the expiration of the first three year.

02:59 - 35.765 PSA, your client did request an extension.

02:59 - 40.512 She did not request an extension at the expiration of the first one.

02:59 - 41.080 Correct.

02:59 - 45.050 And now you're requesting us to, in essence,

02:59 - 48.544 eliminate a statute of limitation for,

02:59 - 52.925 for having

02:59 - 56.852 a contact with no meaningful

02:59 - 01.290 not containing a threat, not containing the death.

03:00 - 04.894 So even even physical proximity.

03:00 - 06.239 Yeah.

03:00 - 09.799 Any action performed by this defense other than a smile and a wave.

03:00 - 11.977 So two things.

03:00 - 14.646 We're not asking you to eliminate a statute of limitations.

03:00 - 17.649 We're asking you to set that six year statute of limitations

03:00 - 19.117 at that second prong.

03:00 - 22.344 So the triggering event for the statute of limitations is the actual contact,

03:00 - 24.089 the subsequent contact. Yes.

03:00 - 25.757 And I think what's important to point out,

03:00 - 27.993 because there's been a couple of comments about,

03:00 - 30.195 you know, any sort of contact or anything like that.

03:00 - 34.099 So it would still be up to the victim to prove by a preponderance

03:00 - 37.836 of the evidence that accommodations made by the trial court correct, that that's.

03:00 - 40.396 Yeah, that's what I wanted to hone in on here.

03:00 - 42.074 Would you

03:00 - 45.977 would you maintain we're bound by the fact finding of the trial court? Yes.

03:00 - 49.214 So that even if we were to look at it and say, wow, that's not much contact,

03:00 - 52.241 the trial court found it satisfied the statute.

03:00 - 54.352 Yes, yes, that's what we're asking.

03:00 - 55.687 I mean, that's not challenged.

03:00 - 58.681 I mean, that's that's raised to the Court of Rights.

03:00 - 59.758 Yes it is.

03:00 - 02.561 Let me ask you this question.

03:01 - 04.896 In k n v

03:01 - 10.559 which you folks talk about, it

03:01 - 14.873 we didn't reach this issue, but it there it's

03:01 - 18.334 sort of interesting because there it would not have mattered

03:01 - 22.304 whether the statute was 6 or 2 years because,

03:01 - 26.218 under your,

03:01 - 29.245 the claim would have been time barred under either

03:01 - 33.382 period if we had read the second prong as triggering.

03:01 - 35.093 Am I getting that wrong?

03:01 - 36.028 No. You're correct.

03:01 - 40.699 So in can be, and I believe that's probably the reason that this issue wasn't

03:01 - 41.434 decided upon.

03:01 - 46.528 There is because no matter what conclusion was reached on this issue,

03:01 - 50.876 that victim in can be would have been within the six year statute of limitations

03:01 - 53.903 because her sexual assault had taken place, I believe,

03:01 - 56.481 two and a half years ago.

03:01 - 59.708 And she filed I mean, she filed this petition

03:02 - 03.255 and alleged the sexual assault and then provided the evidence

03:02 - 06.582 that she felt she was at a continued risk of harm at the same time.

03:02 - 10.019 So she would have been within the six years, no matter what.

03:02 - 15.624 So Clinton filed a new PFA based upon the fair event.

03:02 - 19.905 Based upon the subsequent event,

03:02 - 22.807 could she have gone to court and filed a new PFA?

03:02 - 24.509 Yes, and that's what she did.

03:02 - 26.778 I mean, that's what the victim in this case is.

03:02 - 29.247 This is when her new,

03:02 - 30.649 p SDI was filed.

03:02 - 33.952 But just just so I'm clear, this particular act doesn't necessarily

03:02 - 38.223 limited itself to the relationship between the victim and the offender.

03:02 - 39.457 Like the PFA does.

03:02 - 43.028 To obtain a PFA, you have to have some kind of relationship with that person.

03:02 - 46.455 In this particular case, there's no relation between victim and defendant

03:02 - 48.366 other than the fact that she was his victim.

03:02 - 50.168 At one point in time. Correct.

03:02 - 54.339 And that goes back to the initial argument of looking at the legislative

03:02 - 55.607 intent of this law.

03:02 - 59.068 That legislative intent is reflected in Senator Greenleaf memorandum,

03:02 - 01.680 which were actually attached to the evidence brief.

03:03 - 05.407 Yes, yes, this was created to fill that gap for future interactions.

03:03 - 06.218 Correct?

03:03 - 09.387 I don't know, Legislative intent, I think is dictated by the language.

03:03 - 11.513 But I of the statute, I,

03:03 - 15.460 I just want to make sure I this seems like an odd case

03:03 - 18.463 to even be talking about statute of limitations.

03:03 - 21.399 Because the statutory language this is a, this is sort of like a PFA.

03:03 - 23.635 It's not a PFA, but it's sort of like a PFA.

03:03 - 26.662 It's a restriction on the liberty of someone,

03:03 - 29.808 you know, after notice and due process and things like that,

03:03 - 33.168 that it's going to order them to stay away or do this or do that, whatever.

03:03 - 37.882 If they have to prove if the petitioner has to prove by a preponderance

03:03 - 41.810 of the evidence that the that the that there is a continued risk of harm,

03:03 - 46.548 isn't that going to like a PFA prompts somebody to act quickly?

03:03 - 50.953 You know, if you have a contact that affair and you wait

03:03 - 53.498 one year,

03:03 - 58.193 two years, five years, six years, what trial judge is going to give you

03:03 - 01.897 this order under this statute simply because a year ago

03:04 - 02.941 you ran into this person,

03:04 - 05.968 and now you're coming into court and say, oh, I'm at continued risk.

03:04 - 07.679 I mean, is that really I mean,

03:04 - 11.473 is this really a factual possibility if we interpret the statute that way?

03:04 - 14.543 You're saying.

03:04 - 17.422 How often are we going to run to a statute of limitations problems?

03:04 - 19.124 Trial courts should probably just deny these

03:04 - 21.326 if they're a year after the incident occurred.

03:04 - 23.728 I don't necessarily disagree with that.

03:04 - 28.366 I litigate a lot of PFA on that issue does come up in the PFA is that, you know,

03:04 - 30.902 the time between when the alleged abuse occurred

03:04 - 34.263 and when the petitioner goes to file for the PFA.

03:04 - 38.043 So I think, again, that would be a determination

03:04 - 42.080 for the trial court to make, you know, if the six years starts at the event

03:04 - 43.715 and the yes, the person, the victim

03:04 - 47.509 absolutely should probably go out as soon as possible and file this.

03:04 - 50.813 So what we're I mean, we're not saying that they

03:04 - 56.085 if they file in five years and 11 months, they're entitled to this.

03:04 - 58.320 We're just saying that that this is a.

03:04 - 01.866 I would say a pretty generous

03:05 - 06.295 runway for PFA like, and that you're probably not going to get you.

03:05 - 07.172 Wait.

03:05 - 08.107 Yes. That's correct.

03:05 - 11.142 So and what we're asking for is we're just asking

03:05 - 14.946 that they have the right to file after or

03:05 - 19.074 if something happens that causes them to fear that continued risk of harm.

03:05 - 24.046 You know, for for instance, you have, you know, an offender who say is

03:05 - 28.259 is released from incarceration and makes contact with the victim.

03:05 - 29.494 It's been years.

03:05 - 32.097 They thought that they weren't going to hear from them anymore,

03:05 - 35.166 and suddenly they're contacted by the the offender.

03:05 - 37.035 They threatened to kill them.

03:05 - 39.104 Sometimes victims may be afraid

03:05 - 40.872 that the offender is going to come after them

03:05 - 42.941 because they put them in prison for something.

03:05 - 46.268 So we're asking that they have the right to file.

03:05 - 50.548 So we don't think it would be fair to say to them in that type of situation, well,

03:05 - 52.684 your sexual assault was more than six years ago,

03:05 - 54.853 so you don't have the protections of this act anymore.

03:05 - 56.557 But isn't that what the Superior Court said

03:05 - 58.357 that I mean,

03:05 - 00.792 maybe I'm wrong, but I my understanding was the Superior.

03:06 - 03.728 Court said the triggering event was the underlying offense.

03:06 - 06.164 In other words, the underlying offense happened six years later.

03:06 - 10.101 If you don't file for protection, the statute of limitations is gone.

03:06 - 14.038 Your position was that it's not just when the criminal offense was committed.

03:06 - 17.008 It's also the time that the cause of action accrued.

03:06 - 18.209 In other words,

03:06 - 21.904 if there's a victim victimization or a conviction or criminal offense

03:06 - 25.407 ten years later when the person gets out of prison,

03:06 - 28.920 if that person intimidates somebody at a county fair

03:06 - 33.081 or otherwise, the trial judge finds that there are a continued risk of harm.

03:06 - 33.959 The trial judge

03:06 - 37.862 can then issue another protective order under this particular act. Yes.

03:06 - 38.797 And I think what's important.

03:06 - 41.299 So the the issue with the issue that we're here to decide might, might,

03:06 - 45.103 I think is when the cause of action accrues, not when the underlying offense

03:06 - 46.804 was committed. Yeah. Correct.

03:06 - 51.176 And to that point, what I would look at is and there is case law that we reference,

03:06 - 52.477 I believe it was Erie.

03:06 - 53.345 And that's the case

03:06 - 56.371 that the trial judge relied on in this case that specifically says

03:06 - 00.842 that the statute of limitations should not start until a cause of action accrues.

03:07 - 03.454 And in this case, what's important to look at

03:07 - 06.724 is that all the victim has to do here is for the first prong

03:07 - 08.793 is they have to allege they don't have to prove anything.

03:07 - 11.829 They have to allege that they were the victim of a sexual assault

03:07 - 14.856 or sexual violence or intimidation at some point in the past.

03:07 - 15.968 And the second prong

03:07 - 19.003 is where they actually have to prove by a preponderance of the evidence

03:07 - 20.805 that they're at the continued risk of harm.

03:07 - 24.842 So those two prongs, as we've seen, don't have to necessarily be at the same point

03:07 - 25.944 in time. Well, they have to.

03:07 - 31.149 So they have to prove that they feel that they are at continued risk of harm.

03:07 - 35.410 There's no mens rea a requirement as to the defendant in the case.

03:07 - 36.722 That's correct. Okay.

03:07 - 38.489 So let me ask you this question.

03:07 - 42.184 What's the purpose of a limitation of three years on a protective order?

03:07 - 45.730 This isn't a straight shot at, you know,

03:07 - 49.033 analyzing a statute of limitations, because I think you're right.

03:07 - 53.428 I mean, under a pure statute of limitations analysis, you have to look at

03:07 - 55.106 when she could come to court.

03:07 - 00.144 She can't come to court unless both of the prongs of the test are fulfilled.

03:08 - 02.347 Therefore, that's when the statute reigns.

03:08 - 05.707 But why have a three year limitation on a protective order

03:08 - 09.411 if at any point in time, 30 years later,

03:08 - 13.858 40 years later, you can come into court and say,

03:08 - 19.621 I saw him across the street from me and I was in fear.

03:08 - 21.300 I mean, what

03:08 - 25.403 why, why is there why was there any consideration of putting

03:08 - 28.864 a time limitation on a protective order that could be entered?

03:08 - 32.644 Well, I can't speak to what the intent was by the courts

03:08 - 36.738 when they set the maximum for three years, as as three years for phase

03:08 - 40.551 two. Legislature, the legislature, it's the legislature.

03:08 - 44.012 It's part of the same statute that we're trying to determine

03:08 - 46.791 what the statute of limitation is.

03:08 - 50.118 Well, I think it's important to keep in mind, just as with phase,

03:08 - 53.655 just because a petitioner would file under this act

03:08 - 58.403 and may have evidence to get a new order, that doesn't necessarily

03:08 - 59.771 mean it's going to be three years.

03:08 - 01.506 Again, that would be up to the trial court.

03:09 - 04.242 It's up to three years. They can get it up to three years.

03:09 - 06.577 So I'd like why put a limitation of three years?

03:09 - 08.212 Why not right out of the gate.

03:09 - 10.472 Say you were perplexed. Actually,

03:09 - 14.018 prohibited from coming anywhere

03:09 - 17.045 within two and a half miles of this individual period.

03:09 - 17.923 Not you.

03:09 - 20.358 She has to come into court or he has to come into court.

03:09 - 23.485 I mean, the victim could could be, could be man.

03:09 - 27.565 Why why have that three year limitation

03:09 - 31.727 on the restriction of someone else's movement?

03:09 - 35.173 And as we've interpreted the statute,

03:09 - 39.067 not based upon any intent or mens rea, a period

03:09 - 43.705 on the part of the individual whose freedom is being limited.

03:09 - 48.519 Well, again, I, I, I can't speak to what the legislature intended

03:09 - 51.680 when they entered that as three years as the maximum.

03:09 - 56.685 I'm guessing that's what they felt was an appropriate time to be the maximum.

03:09 - 01.523 Y that, and six years from the date of a

03:10 - 03.568 contract.

03:10 - 07.271 Well, the statute of limitations here has already been determined to be six years.

03:10 - 10.565 So that that's why the date of contact is what's at issue here.

03:10 - 15.113 I, I, I would guess, I mean, I don't know,

03:10 - 19.650 reading into the Superior Court's opinion that they were struggling somewhat

03:10 - 25.380 with the conglomeration of circumstances that comes into play here,

03:10 - 29.127 including our holding that there is no mens

03:10 - 32.854 rea, on the part of the person whose freedom is being restricted.

03:10 - 36.134 And so they're looking at and they're saying what's reasonable

03:10 - 37.902 under those circumstances,

03:10 - 41.263 in conjunction with the fact that if you get a protective order,

03:10 - 44.966 the maximum you could get a protective order for is three years.

03:10 - 46.178 Right?

03:10 - 47.745 I think what this comes down

03:10 - 51.006 to is every single one of these cases is going to be very unique,

03:10 - 56.011 just like each victim of sexual violence, their experience is unique

03:10 - 57.422 and individualized.

03:10 - 00.091 So I think that's where it's up to the trial court.

03:11 - 01.626 They're going to have what they have.

03:11 - 02.528 They have a six year

03:11 - 05.554 statute of limitations, wherever that is determined to start at.

03:11 - 06.465 They have a law

03:11 - 07.665 that says they can give an order

03:11 - 10.859 for up to three years, and it's their job to, you know,

03:11 - 13.871 hear the facts, hear the evidence, listen to the testimony

03:11 - 16.874 and make a decision as to what's appropriate within those constraints.

03:11 - 21.236 So we should we should take nothing from the fact that there is a three year

03:11 - 26.641 maximum on a protective order that's entered when determining this issue.

03:11 - 31.847 Well, you surely have to consider the statute as a whole, do we not? Yes.

03:11 - 36.084 There is a time limitation in the act itself,

03:11 - 40.322 which is a maximum of three years on a protective board. Yes.

03:11 - 44.159 So do we just ignore that? No.

03:11 - 48.072 But I think, again, going back to the intent here,

03:11 - 51.266 which is to protect the victims from future interactions.

03:11 - 55.604 So if they're limited to that first day, the six year date,

03:11 - 57.548 which is the date of their sexual assault,

03:11 - 01.142 and they only have up to six years from that to file under this act at all.

03:12 - 05.747 You know, you're kind of defeating the purpose of what this act was created for

03:12 - 07.258 the statute. Yeah.

03:12 - 07.893 It doesn't.

03:12 - 10.986 The statutes, deal specifically with,

03:12 - 14.699 incarcerated,

03:12 - 16.634 defendants who are then released.

03:12 - 21.062 Isn't there a special rule that applies to those types of individuals?

03:12 - 23.674 There is a section, yes.

03:12 - 27.168 It is where if if the defendant is incarcerated,

03:12 - 30.872 a victim can ask for one of these to be extended

03:12 - 34.809 without having to prove that second prong, then why would that be?

03:12 - 36.954 I mean, that's why I'm sorry of because

03:12 - 40.348 that covers the scenario that you raised, which is a good one.

03:12 - 44.529 I mean, suppose somebody is in jail for 20 years and then they're out.

03:12 - 49.658 I mean, the statute provides for that situation, which is you get something that's,

03:12 - 52.637 a preventative,

03:12 - 56.164 to take care of the, circumstance of release.

03:12 - 00.645 I mean, how does that I mean,

03:13 - 02.647 how does that fit in with this notion

03:13 - 05.674 that somebody who's not incarcerated,

03:13 - 11.546 20 years later can be faced with, this scenario?

03:13 - 14.025 Well, I think it's important to keep in mind

03:13 - 18.229 that a lot of these cases, I would say, don't actually involve

03:13 - 22.023 incarceration, may not even involve criminal charges being filed.

03:13 - 25.836 A lot of victims, you know, again, I believe that some statistics are laid

03:13 - 27.171 out in the amicus brief.

03:13 - 31.266 Majority of victims of sexual violence don't even report.

03:13 - 32.077 Right.

03:13 - 36.271 So, you know, situations where there's an incarceration involved.

03:13 - 38.883 I brought it up because you did.

03:13 - 42.344 I mean, really, you get to I sort of circled back to that, I'm sure.

03:13 - 44.722 Okay. Can I ask another question?

03:13 - 47.349 Do you do do you practice criminal? I don't,

03:13 - 48.794 having

03:13 - 52.754 been somebody who spent a significant time doing criminal prosecution,

03:13 - 57.234 defense and trial work, wouldn't this type of conduct be covered

03:13 - 00.996 under a separate victim witness intimidation charge?

03:14 - 02.140 Potentially?

03:14 - 03.941 I mean, there's no statute of limitations on that

03:14 - 05.543 is that when the cause of action accrues.

03:14 - 09.571 So if you're a victim of a crime 20 years later, you run into the offender

03:14 - 11.616 and you report it to

03:14 - 13.084 the local authorities, and they think that

03:14 - 16.811 this guy's intimidating you or I mean, maybe even subject to harassment.

03:14 - 19.457 Technically speaking, there's no prohibition

03:14 - 22.860 because the cause of action accrues 20 years later when the person intimidates

03:14 - 24.428 the victim. Right? Correct.

03:14 - 26.931 And it will be covered under a separate penal statute.

03:14 - 27.399 It would.

03:14 - 29.233 And that's what we have in this situation.

03:14 - 30.401 In this case.

03:14 - 32.503 Let me just follow up on that. And I don't know the answer.

03:14 - 34.505 Maybe justice McCaffrey could answer it for me,

03:14 - 37.599 but the statute to which he's referring you would be in places with the.

03:14 - 39.644 Yeah, absolutely. Yeah.

03:14 - 42.771 There would be a mens rea a requirement on the part of the defendant.

03:14 - 48.319 Yes. There was which which is really, really which which sets this apart.

03:14 - 51.346 What we are talking about here, which sets this apart

03:14 - 54.058 from all of those scenarios.

03:14 - 55.326 Yes it does.

03:14 - 58.095 This actually, with this law, it's

03:14 - 01.589 actually subjective, a subjective standard for the victim.

03:15 - 05.569 If they subjectively feel that there's at a continued risk of harm, they

03:15 - 06.593 will get an order

03:15 - 08.373 something.

03:15 - 10.408 Okay. Yes, but they have to prove it.

03:15 - 13.435 A trial court has to be convinced that it's not,

03:15 - 17.272 you know, maybe, maybe a trial court's like, you know,

03:15 - 19.717 I don't want to disparage victims of sexual violence,

03:15 - 22.453 but maybe a trial court says you're being a little bit too sensitive.

03:15 - 24.488 I don't know, it's possible, though, right?

03:15 - 27.649 It's possible the trial court could say, look, you know,

03:15 - 29.827 I'm not going to restrict this person's liberty.

03:15 - 33.722 I don't I understand your you feel this way, but I don't think it's

03:15 - 36.801 reasonable or rational under the circumstances

03:15 - 41.463 because you saw him driving his car in the opposite direction one night.

03:15 - 43.407 I mean, that's that's a possibility, right?

03:15 - 44.809 It's absolutely possibility.

03:15 - 48.079 It's a fact finding that this court could have made that it went the other way.

03:15 - 50.748 And we're not here to dispute that, right? Yes.

03:15 - 54.051 That actually is one of the issues that the Superior Court was to look at.

03:15 - 56.520 And they didn't get to because they concluded the.

03:15 - 59.223 So we would have patients, so we'd have to send it back

03:15 - 02.159 if we even if we agreed with you, we'd have to send it back to the superior.

03:16 - 02.894 Exactly. Yes.

03:16 - 05.963 I believe there were five other issues that they didn't get to, and that's

03:16 - 08.990 one of them that they would be looking at is whether, in this case,

03:16 - 12.961 the contact at the fair was enough to cause a continued risk of harm

03:16 - 19.100 for any other questions for this crime.

03:16 - 20.845 Thank you very much.

03:16 - 21.513 It's been an honor.

03:16 - 24.539 Thank you, thank you, thank you, Mr. Clary.

03:16 - 27.942 Thank you.

03:16 - 29.955 Mate, please.

03:16 - 31.756 The court,

03:16 - 34.783 from John Ferri, representing appellee.

03:16 - 36.127 McKelvie.

03:16 - 39.187 Our position is, I think pretty straightforward

03:16 - 42.624 is that the statute of limitations begins to run when the injury is inflicted.

03:16 - 47.529 And that's the injury is the act of, sexual violence or intimidation.

03:16 - 48.039 But how?

03:16 - 53.410 It's how can that be, given that, that there's a second prong that the the the

03:16 - 56.437 the cases that's on appeal here

03:16 - 59.474 now is not that offense from way back when.

03:16 - 01.919 It's this one.

03:17 - 04.946 And and and the.

03:17 - 08.058 You realize you have other quarrels.

03:17 - 09.894 But the fact finding which are before us.

03:17 - 14.823 But given that that's what's before us, how is it not that event

03:17 - 18.869 that marks the accrual,

03:17 - 20.738 given that the legislature chose

03:17 - 23.731 to put this in the

03:17 - 25.576 in the statute?

03:17 - 28.603 In other words, if the clerks if the clerks

03:17 - 32.383 running from the prior

03:17 - 35.410 event, the original crime here,

03:17 - 39.814 how does that not nullify

03:17 - 42.893 cases under the second prong entirely

03:17 - 45.696 beyond a certain date, beyond six years?

03:17 - 49.457 Well, I think it would actually I do think there's another statute.

03:17 - 51.569 I don't I don't think nullifies the statute.

03:17 - 54.596 I believe that there's times when,

03:17 - 01.002 You would not reach the, the, the cruel, the cause of action

03:18 - 05.473 if again, when there's that long a time period between the,

03:18 - 10.044 the criminal act and, the happenstance encounter, can I just.

03:18 - 12.656 I'm sorry, I think I was in artful in my question.

03:18 - 16.284 So, let's take the scenario here, and,

03:18 - 19.163 and, there's the

03:18 - 22.323 crime, and he does his time, whatever. And,

03:18 - 24.802 we, we go forward.

03:18 - 27.829 And now six years have passed.

03:18 - 31.366 It is your position, is it not, that that

03:18 - 36.004 this plaintiff could never,

03:18 - 40.408 could never invoke this statute

03:18 - 44.545 once six years have passed from the original crime?

03:18 - 46.458 Yes, I believe that's correct.

03:18 - 50.261 And how does that comport with the legislature's

03:18 - 53.288 passage of this law?

03:18 - 54.765 Well, I think it's a it comes

03:18 - 57.792 down in the statutory construction.

03:18 - 59.837 If the

03:18 - 02.339 if the statute is triggered, by the chance

03:19 - 05.366 encounter, that demonstrates a continued risk of harm,

03:19 - 10.171 then there's no need for this, orders to be limited to three years.

03:19 - 13.207 There's no need for the extension provision.

03:19 - 17.578 And even the, the incarceration, provision,

03:19 - 21.792 is interesting because that removes that second prong altogether.

03:19 - 24.886 And the only prong for the incarceration is,

03:19 - 28.465 whether or not there was a prior, risk.

03:19 - 31.335 So in that case, under,

03:19 - 34.362 subsection F,

03:19 - 37.832 the statute of limitations would never be triggered,

03:19 - 41.970 as long as the, defendant is incarcerated at some point.

03:19 - 45.740 So you could have someone that, committed an act or,

03:19 - 49.219 where plaintiff asserts that an act occurred

03:19 - 53.147 30, 40 years before the defendant is then incarcerated on something

03:19 - 56.184 totally unrelated.

03:19 - 59.229 Under that reading of the statute,

03:19 - 02.390 the plaintiff would still be entitled to an order at that point,

03:20 - 06.170 because the person is incarcerated and there's no requirement to show

03:20 - 09.197 that there's any, risk of harm.

03:20 - 12.042 Why would a court issue an order with that kind

03:20 - 15.069 equivalent of a protection from abuse order for somebody who's incarcerated?

03:20 - 18.983 You mean while they're incarcerated?

03:20 - 22.010 Yeah.

03:20 - 23.520 I mean, I'm just

03:20 - 27.424 if they again, I'm trying to put myself in the mind of a a trial court judge.

03:20 - 28.559 You would be confronted with these.

03:20 - 30.394 And if I was the trial court judge, I was confronted with this,

03:20 - 32.830 I would be like, you're trying to get a protection order

03:20 - 35.599 because you're worried if you're you're going to be intended

03:20 - 38.659 or harm because this person is in prison.

03:20 - 41.729 I, I would deny that probably

03:20 - 45.509 pretty quickly.

03:20 - 46.944 I can understand that.

03:20 - 49.971 My thought is that.

03:20 - 51.849 Your problem with your problem

03:20 - 54.876 with your position, the superior force positions.

03:20 - 57.888 You don't want to deal with the circumstances

03:20 - 00.915 that are likely to really bring this up, which is

03:21 - 04.628 which is that someone is a victim of sexual assault.

03:21 - 06.630 Maybe they don't even have a conviction.

03:21 - 09.657 But, but but, you know, they want to invoke this.

03:21 - 11.635 They invoke it and they get it.

03:21 - 12.836 They get the three year max.

03:21 - 16.030 The trial judge says, I think this is horrible.

03:21 - 19.810 I'm going to give you the three year max General Assembly, for some policy reason,

03:21 - 20.445 basically said,

03:21 - 23.509 we're not going to restrict people for any longer than three years at a time.

03:21 - 26.817 You can extend it, but you have to come in and you have to prove additional facts.

03:21 - 29.844 Or if the three years goes, that's just the maximum we're going to do

03:21 - 32.880 five years pass and the person's like,

03:21 - 35.759 I'm going to come back

03:21 - 38.786 and I'm going to do have this chance encounter again.

03:21 - 42.566 That's the circumstance that General Assembly

03:21 - 46.837 seems to have wanted to contemplate this idea that and maybe it

03:21 - 52.100 maybe it's a, a sword that's constantly hanging over the perpetrator

03:21 - 56.537 because there's always a possibility if they do something

03:21 - 00.875 that's subjective without mens rea, that subjectively causes

03:22 - 04.855 this person to feel this way and convince a trial juror

03:22 - 08.525 that they could always be subject to not renewed three year

03:22 - 11.886 orders, but a second three year order or a third three year order.

03:22 - 15.132 That's the that seems to be the factual circumstance

03:22 - 16.400 we have here, number one,

03:22 - 19.427 and the one that the Superior Court just didn't seem to grapple with.

03:22 - 23.107 They started talking about, well, the three year order can be extended.

03:22 - 25.909 Okay, that's true, but we're not talking about that circumstance.

03:22 - 29.046 Or there's the there's the the incarcerated person.

03:22 - 30.914 Okay. Well, we're not talking about that circumstance.

03:22 - 32.216 We're talking about something differently.

03:22 - 34.451 So can you address that circumstance?

03:22 - 37.478 You're telling me that the General Assembly did not intend

03:22 - 40.691 that if a person gets a three year order,

03:22 - 43.994 the general that the three year order thing expires and two years

03:22 - 47.288 down the road they come back and do something that this act is or

03:22 - 50.367 four years comes back and does something.

03:22 - 52.069 And the General Assembly didn't intend

03:22 - 55.263 to allow this person to go back in right then and there and get a new order.

03:22 - 58.842 Yes. The,

03:22 - 02.370 when the triggering event is something is a subjective,

03:23 - 05.382 risk of harm.

03:23 - 09.143 Why why else would you have the, the, the extension provisions?

03:23 - 13.023 Unless there was some point where that's going to run out

03:23 - 17.628 where they can no longer, pursue this type of, of, protective order.

03:23 - 20.297 It seems the quarrel then is with the statute.

03:23 - 25.526 I mean, that the legislature provided plaintiffs a very robust tool

03:23 - 28.605 and end up, I mean,

03:23 - 31.632 you may not like it, but, it

03:23 - 34.912 I mean, the the the limit.

03:23 - 38.339 The statute always begins to run when the cause of action accrues.

03:23 - 43.253 And and I guess your interpretation seems to ask us to read out of the statute

03:23 - 44.821 the second prong,

03:23 - 47.882 because proved by preponderance of the evidence that the plaintiff

03:23 - 51.495 or another individual is appropriate, is at a continued risk of harm,

03:23 - 56.867 and that continued risk of harm is not running from the original crime.

03:23 - 00.170 This guy did, it's running from this incident

03:24 - 03.598 in the flea market, which struck this judge as enough.

03:24 - 05.742 It might strike another judge is not enough.

03:24 - 08.769 But it struck this judge as enough.

03:24 - 10.271 And and so.

03:24 - 14.308 I guess my question is, how can we not

03:24 - 17.878 view that flea market thing as that,

03:24 - 22.250 that the accrual point under this prong, this second prong.

03:24 - 23.628 Yeah.

03:24 - 24.895 My my thought is it

03:24 - 28.422 goes back to the statutory construction that the other provisions become,

03:24 - 32.169 meaningless, that there's no need for these provisions

03:24 - 33.904 on limitations of three years.

03:24 - 37.007 And, again, but there is a reason, right?

03:24 - 39.977 The reason is that the General Assembly made a judgment, right,

03:24 - 44.272 that if a trial court issues an order like this, under these circumstances,

03:24 - 46.116 the most, we're going to authorize

03:24 - 49.143 a trial court judge do is issued three years at a public,

03:24 - 51.788 and then we're going to require the petitioner to come back in later

03:24 - 53.323 if they have to come back in later.

03:24 - 55.092 Why is why is that why

03:24 - 58.653 why does the construction that justice work and saying render that another.

03:25 - 01.599 Well I don't know.

03:25 - 04.625 That renders that analogy. It's.

03:25 - 08.872 I guess my thought is that

03:25 - 11.942 those limits are there for a reason that whether it's a three year

03:25 - 14.969 limit, or the limit that,

03:25 - 18.282 when someone's incarcerated, that you can't get the order

03:25 - 21.309 or you can't get an order once they're incarcerated?

03:25 - 27.291 So, Yeah.

03:25 - 31.085 I'm sorry, I don't see, I don't see that subjective.

03:25 - 34.064 Demonstration of a continued

03:25 - 37.458 risk of harm is being really the key behind the statute.

03:25 - 44.065 The key is that the, the injury is very argument that under the.

03:25 - 45.043 Okay.

03:25 - 48.936 Received a three year order. Yes.

03:25 - 52.015 And pursuant to the act, you can ask

03:25 - 55.543 for an extension provided the elements of the.

03:25 - 59.056 Yeah, the statute of limitation, in essence,

03:25 - 02.083 is confining a protection,

03:26 - 04.094 because of sexual assault.

03:26 - 05.729 So a maximum of six years

03:26 - 08.756 for the first three years, and if necessary, for inspection.

03:26 - 14.895 And should the defendant have contact with the victim within a three years,

03:26 - 19.834 subject to the expiration, they're subject to this extension.

03:26 - 23.070 Otherwise, a six year, it's over a five.

03:26 - 28.576 No, no, I believe the extensions can continue on and on and on and on.

03:26 - 35.092 The, Yeah, that's separate, I guess, from the statute.

03:26 - 37.928 Limitations continue on and on and on.

03:26 - 40.831 Then it's when the extensions would stop that.

03:26 - 43.934 That's when statute limitations, I believe, kicks in and stops

03:26 - 46.961 you from getting additional, new orders.

03:26 - 53.744 Okay.

03:26 - 56.771 For, anything else?

03:26 - 57.648 Thank you, Mr.

03:26 - 00.674 Fairy.

03:27 - 03.487 This concludes our,

03:27 - 06.656 special session here in Luzerne County.

03:27 - 09.683 I did want to say thank you to,

03:27 - 11.294 a few people here.

03:27 - 15.298 I want to thank, ACN for their coverage

03:27 - 18.468 of this, session for educational purposes.

03:27 - 21.138 We very much appreciate that.

03:27 - 23.907 And I'd like to thank our, court

03:27 - 26.934 administrator, Chris.

03:27 - 28.179 Nice.

03:27 - 32.273 And the court administrator for the,

03:27 - 35.843 county of Luzerne whose name I'm looking for here.

03:27 - 38.879 Yes, it is.

03:27 - 41.725 Paul hinder Marsh,

03:27 - 45.386 we thank him for arranging this along with Chris Nace.

03:27 - 49.866 And I'd like to thank our court crier, Brian Minner, our personal tary,

03:27 - 55.939 Caitlin Gorman, and our court security, John Evans, Gary Shovlin,

03:27 - 00.267 Scott Town, as well as the Luzerne County Sheriff's Office.

03:28 - 02.914 And of

03:28 - 05.982 course, the president, Judge Sabattus,

03:28 - 09.810 for allowing us to use this courtroom for this session.

03:28 - 12.355 Mr.. Minner, you may adjourn the court.

03:28 - 18.452 Court is adjourned. For.