00:01 - Before his work may now appear at some God save the Commonwealth.

00:04 - This week, the audible Patricia McCullough, presiding.

00:13 - Thank you.

00:13 - Good morning.

00:15 - Well, we have a full house here today.

00:17 - We welcome you all to the Commonwealth Court on block arguments

00:21 - and those who are watching, by live stream today.

00:25 - It's always a privilege for me to sit with my colleagues on the court.

00:29 - President.

00:30 - Judge cone juggler who is joining us by WebEx today.

00:34 - Beautiful screenshot there.

00:35 - Okay.

00:36 - Judges Kobe Rogic, Zeno Cannon, Dumas and Wolf.

00:41 - And our thanks to PCN for recording

00:44 - and later broadcasting these arguments.

00:47 - The attorneys from the Commonwealth Court, OCA, LCC office, Office of Chief

00:52 - Legal Counsel who will do the introductions when you watch these later

00:56 - are Sam X, Daniel, Nader, Bill, Pontus and Colby Miller.

01:01 - And we thank them unless otherwise ordered.

01:05 - Our on bank arguments or 30 minutes per case with 15 minutes for each side.

01:10 - Not per litigant.

01:12 - And if more than one attorney will be arguing, we ask you to tell us

01:15 - how you're splitting your time.

01:17 - Also, petitioners and appellants, please ask for rebuttal

01:21 - time up front and we encourage you to jump right into your arguments.

01:25 - We've spent considerable time reviewing your cases.

01:28 - And with that, we'll begin with our first case, which is number 80

01:32 - and number 81. That being heard seriously,

01:36 - George backto

01:37 - versus Commonwealth, the Pennsylvania Department of Transportation

01:40 - and Jamie Angle versus Commonwealth, the Pennsylvania Department

01:43 - of Transportation, Bureau of driver licensing counsel.

01:51 - Hello and welcome to the Commonwealth Court

01:53 - of Pennsylvania's December on Session.

01:55 - My name is Samuel Argus, and I'm joined by my colleagues in the Commonwealth

01:59 - Court's Office of Chief Legal Counsel Daniel Nir, Bill Pontus and Kobi Miller.

02:04 - The term on bonk is French for on the bench, and refers to a special procedure

02:09 - where a panel of seven Commonwealth court judges hears argument on cases

02:12 - that the court believes implicate complex or important legal issues.

02:17 - Today, the court will hear seven such unbound cases.

02:21 - Danielle Colby and I will present a brief summary of each

02:24 - case, followed by the broadcast of the oral argument thereon.

02:28 - With that, let's jump into the first introduction.

02:32 - The first

02:32 - two cases to be argued present a constitutional question

02:36 - regarding whether the state's implied consent law violates a DUI.

02:40 - Arrests, search and seizure, and due process rights.

02:43 - When the arrestee refuses a warrantless blood draw

02:46 - under the implied consent law, any person that operates a vehicle

02:50 - in the Commonwealth consents to chemical testing of their breath or blood.

02:54 - If a police officer has reasonable grounds to believe the driver is impaired.

02:59 - If a driver refuses to submit to chemical testing,

03:02 - then the Department of Transportation will suspend the individual's

03:05 - operating privilege for at least 12 months.

03:09 - The implied consent law has been repeatedly

03:11 - upheld under constitutional challenges.

03:14 - Appellants here, however, argue that recent decisions

03:17 - from the Pennsylvania Supreme Court provide a compelling basis for this court

03:21 - not to follow. Prior precedent.

03:24 - In the first case, the Pennsylvania Supreme Court noted that

03:27 - the ability to drive is an important constitutionally protected interest,

03:31 - even if labeled a privileged under the law.

03:34 - In the second case, the court held that it is fundamentally unfair

03:38 - to penalize an individual for exercising a constitutional right.

03:44 - Applied

03:44 - here, appellants argue that because there were no warrants

03:48 - for their requested blood draw, they had a constitutional right to refuse.

03:53 - Appellants reason that because they had a constitutional right

03:56 - to refuse the warrantless blood draws and their ability to drive

04:00 - is a constitutionally protected interest, they cannot be penalized

04:04 - with the license suspension for exercising this constitutional right.

04:09 - In response, the Department cites Pennsylvania Supreme Court precedent,

04:13 - holding that the penalty of license suspension upon refusal does

04:18 - not unconstitutionally coerce a driver into submitting to chemical testing.

04:23 - In cases stating that drivers have a statutory right

04:27 - to refuse chemical testing, but not a constitutional right to do so.

04:32 - The department cites precedent holding that driving is a privilege

04:35 - and not a fundamental right, and that privilege is conditioned through

04:39 - the implied consent law on a driver's admitting to chemical testing.

04:43 - When requested to do so.

04:46 - It also cites

04:47 - Supreme Court precedent stating that under the operation

04:50 - of the implied consent law, a driver does not have a constitutional

04:54 - right to refuse chemical testing, but that the law does provide the driver

04:58 - with an explicit statutory right to refuse testing.

05:02 - The department argues that the licensee's interest

05:05 - in driving is protected because upon refusal and suspension,

05:08 - while licensee can challenge the suspension through a statutory appeal

05:12 - which affords the driver with the necessary constitutional due process,

05:17 - a decision in this appeal may turn on whether a driver,

05:20 - after obtaining a driver's license from the Commonwealth,

05:23 - maintains a constitutional right to refuse chemical testing without a warrant,

05:27 - despite the driver's implied consent to submit to chemical testing.

05:31 - When there are reasonable grounds to believe that driver is impaired.

05:35 - The court may also be called upon to differentiate

05:37 - a constitutional protected interest from a fundamental right.

05:41 - Let's listen to the argument.

05:44 - It pleased the court Leonard Sazonov for Mr.

05:48 - Recto and Mr. Engle.

05:50 - It's the same issues involved in both case.

05:54 - Cases like yours are three minutes for rebuttal.

05:57 - Three minutes. You have it.

05:58 - And this case is going to be 40 minutes total with 20 minutes per side.

06:02 - So you want three minutes of the 20?

06:04 - Yes. Okay.

06:05 - Thank you.

06:07 - Section 1547 of the Vehicle code

06:12 - imposes a license suspension of at least 12 months.

06:17 - And a

06:18 - reinstatement fee of the license

06:20 - of at least $500 to get it back.

06:26 - This is a punishment

06:28 - for the exercise of a constitutional right,

06:31 - which is the refusal

06:34 - to agree when asked for a blood draw.

06:38 - When when there is no warrant, the police do not have a warrant.

06:43 - Filing isn't driving a privilege, not a right.

06:47 - The I

06:48 - think the label, doesn't further the analysis.

06:52 - It actually is a right to retain your license in the middle case, which I,

06:57 - included my brief from the Pennsylvania Supreme Court from, 2021.

07:03 - The middle case held that,

07:07 - retaining a driver's license is actually

07:10 - a protected due process interest.

07:13 - And Bell versus versus the United States Supreme Court case from 1971.

07:18 - Well, isn't the middle case different because not held on?

07:22 - Isn't the case different because there was a staleness argument

07:28 - that it had gone for so long that the individual had lost the license,

07:32 - and it was because of the government

07:34 - hanging on to the license that it became stale, and that it wasn't

07:38 - anything to do with the right or privilege to drive on the Commonwealth roads.

07:43 - But it was because of how the government

07:45 - behaved in holding on to the license and because it was so old.

07:49 - I would disagree that the word privilege does not further the,

07:53 - constitutional analysis

07:56 - and that Bell versus Burson, 1971,

07:59 - the United States

08:00 - Supreme Court said, however denominator whether it's a privilege or a right,

08:04 - there's a due process interest to retain the license in this case

08:07 - is actually stronger than McDowell as far as the substantive due

08:11 - process violation that was found there.

08:14 - And the reason it's stronger is because

08:17 - in Middletown, he had been convicted of drunk driving,

08:21 - and he, for his conviction, had to serve a license suspension.

08:26 - Isn't that the distinction?

08:27 - He was convicted.

08:29 - That's correct.

08:29 - That that supports my argument.

08:32 - This is much stronger.

08:34 - In other words, this is a civil action.

08:36 - This this is a civil action.

08:38 - That was a civil license suspension as well.

08:41 - That mid there was a civil license suspension.

08:44 - He was convicted and his license was suspended under

08:50 - bonded statutes.

08:51 - So after his license was suspended

08:55 - which is a civil penalty correct.

08:57 - After his license was suspended.

09:00 - The reason that the court found a violation of substantive due process,

09:05 - as they said, it's fundamentally unfair that it took 28 months

09:10 - for them to actually execute the license suspension.

09:14 - So do you have those facts here?

09:16 - I have better facts, and better facts are that,

09:21 - these men are presumed innocent.

09:24 - They have done nothing wrong in the eyes of the law.

09:28 - In fact, for for, a blood draw,

09:30 - a section 1547 doesn't even require probable cause.

09:34 - That requires reasonable grounds.

09:36 - Sometimes I think this court already decided that

09:40 - if you're required to take a blood draw, it's because it's a civil action.

09:44 - It's not a criminal action.

09:45 - And if it's in that Burchfield case, and we made a distinction,

09:50 - this court has decided to issue some arguing today.

09:53 - Right. This is a question of starry decisis.

09:55 - This court has decided the issues, maybe a half dozen times.

10:00 - This court and bunk, though, of course, does not have to follow

10:04 - previous, bank or panel decisions.

10:07 - And it should not, because those decisions

10:10 - now do not have the vitality they once did.

10:13 - The last time this court decided the issue went back

10:16 - was 2017.

10:18 - And as I point out in my in my briefs, there's two cases in the United States

10:23 - and the Pennsylvania Supreme Court, actually, three

10:26 - that suggests now that those cases are incorrect.

10:30 - One is middle because substantive due process

10:35 - you are punishing now people who are presumed innocent with a license

10:40 - suspension for exercising a constitutional right to refuse, a blood draw.

10:46 - And the other case,

10:49 - I would suggest by analogy, is very strong.

10:51 - And then I'll get to a case.

10:52 - It's almost exactly on point.

10:55 - So Commonwealth versus teller,

10:58 - it's actually two cases from the Pennsylvania Supreme Court

11:03 - and and Taylor, it

11:04 - was a juvenile case, not a criminal case, was a juvenile case.

11:08 - And it was a certification hearing to decide whether he was

11:13 - going to be transferred for trial as an adult.

11:16 - And he refused to testify at his hearing.

11:19 - He exercise his Fifth Amendment right to remain silent.

11:23 - The judge, in deciding to certify him for trial as an adult, considered as a factor

11:29 - the fact that he exercised his Fifth Amendment

11:31 - right at the hearing, that he didn't testify,

11:36 - and the Pennsylvania Supreme Court in two cases said this is fundamentally unfair

11:40 - to consider the exercise of this Fifth Amendment right,

11:43 - the constitutional right to not testify at his hearing,

11:47 - to consider it as a factor in deciding whether he's going to be certified,

11:53 - in this case, the penalty count.

11:55 - Council president.

12:18 - No, it's irrelevant, because, the United States

12:20 - Supreme Court has held several times, whether you call it

12:25 - further, the penalties, criminal or civil talking generally.

12:29 - Now, you cannot punish the exercise as the constitutional right.

12:34 - And terror was the exercise of the system, the right.

12:38 - And perhaps now I should talk about the fact

12:40 - that there is a constitutional right.

12:42 - It's not merely a privilege to refuse to give blood

12:47 - when the police do not have a warrant.

12:50 - And that is clear now.

12:51 - And I want to, I want to I want to get back to the basic concept.

13:03 - But the label does not change

13:05 - the fact that you can't penalize

13:08 - somebody for the exercise of a constitutional right.

13:12 - And let me explain why the implied consent statute

13:15 - cannot control in this case.

13:18 - I don't understand why you keep saying label the General Assembly.

13:22 - The ones in charge

13:24 - made a determination that it's a civil penalty.

13:28 - That is correct.

13:29 - So is that what you're referring to as a label?

13:32 - I'm referring to it that it is constitutionally irrelevant.

13:37 - You can't punish.

13:38 - You couldn't you couldn't do the exercise.

13:40 - A constitutional right take away somebody's house, take away

13:43 - somebody's car, or suspend their license for a year.

13:48 - Let me back up a little bit.

13:49 - I mean, you don't just get a license because you exist.

13:53 - You get a license because you have to study and you have to take a test,

13:57 - and then you have to respect all of the laws on the road,

14:01 - only the constitutional ones, as far as as far as 50,

14:05 - 15, 47, you do have to obey the rules of the road.

14:10 - You can't drive drunk.

14:11 - That's the basic rule. You're not allowed to drive drunk.

14:14 - These

14:15 - people who are presumed innocent have been arrested,

14:18 - and the state wants to extract blood from them,

14:22 - and they cannot do that on the theory that this privilege

14:26 - or that the legislature had a right to pass section 1547,

14:31 - if I can explain, it's a constitutional right.

14:34 - And that's why in the final analysis,

14:37 - you just can't have a substantial punishment like this.

14:41 - So let me explain, because,

14:44 - my where the opponent here says,

14:46 - referring to all the decisions of this court,

14:50 - it's there's no constitutional right to refuse a blood.

14:52 - You know, it's a gift from the legislature.

14:55 - Well, it may have been a gift from the legislature until 2013 because

15:01 - until 2013, it was generally thought in Pennsylvania

15:06 - and in many states that

15:09 - there was no right to refuse a blood draw.

15:12 - Government had the right period to get your blood.

15:15 - If you were arrested.

15:17 - And McNeely changed

15:20 - the constitutional ballgame in 2013,

15:24 - reiterated by Burke,

15:26 - Phil and Mitchell versus Wisconsin.

15:29 - The two cases that followed

15:32 - what the court held as far as blood.

15:35 - And then I'm going to contrast that with breath

15:37 - because we're in very different positions.

15:39 - There were blood and breath.

15:42 - What the court held

15:43 - was to extract blood, serious invasions.

15:46 - Some of these, personal integrity that after a person arrested a drunk

15:53 - driving suspect that you need

15:56 - a warrant, general, is you need a warrant.

15:59 - It was a brand new holding in McNeil in 2013.

16:04 - It's been reiterates since you need a warrant.

16:07 - Well, there are only two exceptions, as the court has discussed.

16:10 - You need.

16:11 - Well delineated exceptions to the warrant.

16:14 - If you want to search somebody, whatever this,

16:17 - the two exceptions are exigent circumstances.

16:21 - There's no claim in this case and consent.

16:25 - And that means actual consent.

16:27 - Voluntary consent, which means purchase right to refuse.

16:32 - If that was not true, if,

16:35 - in fact the implied consent, that means you have to give blood and every case

16:40 - it would be

16:41 - overruling McNeely because they would never.

16:45 - And the other cases you would never need a warrant in any case, to get blood.

16:51 - If implied consent is an exception

16:54 - to the constitutional requirement, it would eviscerate those decisions.

17:00 - It cannot function that way.

17:02 - There's no really way for it to function that way.

17:05 - And it's a case in a Pennsylvania Supreme Court that came down

17:09 - after we filed the briefs

17:11 - in this case earlier this year.

17:14 - Commonwealth versus hunt.

17:17 - So it gives a citation states

17:19 - you and to a 337

17:24 - at Lenox third

17:27 - for 83

17:29 - Pennsylvania Supreme Court some months ago.

17:32 - The issue in that case

17:34 - was whether the other implied consent statute was constitutional.

17:39 - That's 3755,

17:41 - which provided that to somebody was involved in an automobile accident.

17:46 - There's probably cause to believe the person was drunk at the time

17:50 - and they were taken to an emergency ward,

17:53 - section 3755 said, with probable cause, you can take the person's blood

18:00 - that required there's a warrant.

18:02 - That requirement existed in circumstances exception.

18:05 - The requirement of actual consent.

18:09 - The Pennsylvania Supreme Court held statutes unconstitutional,

18:13 - passed by the legislature, passed to deal with the problem of drunk driving.

18:18 - Pennsylvanians.

18:18 - Supreme court sets that statute blatantly unconstitutional.

18:22 - Facially unconstitutional.

18:24 - Because what I've been arguing

18:27 - today is the rationale of the opinion.

18:31 - You know, state Supreme Court says you need a warrant.

18:33 - There are only two exceptions to warrant.

18:36 - And I'll just be repeating myself

18:38 - and the Pennsylvania issue is an implied consent.

18:41 - If you're going to start, repeating, I'm going to jump in.

18:46 - In essence,

18:48 - you're saying that even in the civil context

18:54 - that in order to ask for a blood draw,

19:01 - you need the government needs a warrant.

19:05 - Well, first of all, it's in the criminal context

19:08 - because section 15 1547 applies to somebody that's been arrested.

19:13 - So it's who is under arrest.

19:15 - So the actual request for the blood is in the criminal context.

19:20 - But yes, the Fourth Amendment to this amendment,

19:24 - they apply whether it's a criminal context or a civil context,

19:27 - the rights don't vary according to the context.

19:32 - So so you have just as much

19:35 - you have just as much constitutional right in a civil case as you do

19:39 - in a criminal case, right under the Fifth Amendment, under the Fourth Amendment.

19:43 - Correct. They can't have a search without a warrant,

19:47 - for civil

19:47 - case purposes, and they can't do it in a criminal case.

19:51 - So ways a magic wand.

19:54 - How how should the Commonwealth of Pennsylvania

19:58 - regulate

20:01 - DUI and the necessity for a blood draw?

20:06 - So actually, the Commonwealth of Pennsylvania,

20:10 - the legislature already has

20:14 - right in the statute,

20:16 - the remedy for exactly your concern, which is

20:19 - I've talked about, which is that it provides you can take breath or blood

20:25 - under the statute and the penalties for breath.

20:29 - There is no constitutional right to refuse

20:32 - as the blood there is.

20:35 - And the distinction is in Burchfield.

20:38 - Burchfield, how did decide the government argued in Burchfield

20:42 - that in every case where somebody is arrested for drunk driving,

20:46 - a court should find in a section since her arrest,

20:49 - which never requires any more information, it doesn't require a warrant

20:53 - that search instance arrest it from this,

20:56 - a draw of breath and blood.

20:59 - In every case, the United States Supreme Court said no

21:03 - blood is a much more serious intrusion for breath.

21:08 - For breath, you can do a breath sample.

21:11 - You can take a breath sample in every single case.

21:15 - A person has no right to refuse.

21:18 - And because they have no right to refuse, if

21:23 - if the person did refuse to give breath,

21:28 - these civil penalties can be enforced.

21:30 - Section 1547 I'm not arguing it's totally unconstitutional.

21:34 - Would you agree with me that there's nothing wrong

21:37 - with taking away somebody's driving privileges?

21:41 - If a warrant is issued and blood is taken based on that warrant,

21:46 - which reveals an alcohol content beyond the limit prescribed by law.

21:52 - So to back up, would you would you agree with that, that it's you would agree

21:58 - the current state of the law is this for breath.

22:01 - If someone is arrested for DUI and I'm talking about section 1547 now

22:05 - and what's constitutional, what's not after

22:08 - somebody is arrested for DUI,

22:11 - the police reasonable grounds under section 1547,

22:16 - the police

22:17 - can say, we want to take a breath sample for you,

22:21 - from you to measure your blood alcohol content.

22:25 - They do not need a warrant.

22:27 - They do.

22:28 - The person cannot refuse because he has no right to refuse.

22:31 - And you can penalize it precisely because there is no right for blood.

22:40 - For blood.

22:42 - If they want blood instead of breath,

22:46 - like in this case, they prefer blood instead of breath, they can get a warrant.

22:50 - Now, your your position is not that they can get a warrant.

22:53 - Your position is that they have to get a warrant if they want blood period.

22:59 - No, I just going to pass on that with the subject.

23:01 - Go ahead.

23:02 - They have to get a warrant consent or exigent certain

23:07 - exigent circumstance or actual voluntary consent.

23:11 - And this is what this is what hunt says, by the way, the most recent case.

23:15 - But comfort counsel wasn't the, defendant in hunt unconscious.

23:20 - So don't we have a difference in the facts between hunt in this case?

23:25 - No, because the court decided to statute.

23:28 - I don't think it was unconscious.

23:30 - It has to be some bad shape, but it wasn't established

23:34 - that he couldn't give breath, for example.

23:37 - But the court held in hunt that the statute was facially unconstitutional

23:42 - because it did not require a law,

23:45 - and it did not require any exception to get the blood.

23:50 - When I say exception,

23:52 - there's only two delineated exceptions that I've been referring to.

23:56 - Implied consent is not an exception to the white requirement.

23:59 - So all the cases from before the older cases,

24:03 - they are as far as blood is concerned, there's no correct us as to brass,

24:07 - but as far as blood is concerned, they are not correct constitutionally.

24:13 - Now that the United States Supreme Court has three times said you need a warrant,

24:18 - and echoed again by Pennsylvania Supreme Court earlier

24:22 - this year and.

24:26 - It's argued against my position

24:30 - that, for policy reasons,

24:33 - for the first 8 or 9 pages of the brief for handguns,

24:38 - there's a drunk driver who's a horrible,

24:40 - serious crime that has to be dealt with.

24:44 - And, that is true.

24:47 - And in fact, that can be dealt with.

24:50 - We know, as a practical matter,

24:52 - by getting a sample, if you don't want to get a warrant, counsel,

24:55 - we are over your time now and you have three minutes rebuttal left.

24:59 - So you can address that more if you would like.

25:03 - And I would like you during rebuttal to also tell the court

25:05 - what you want us to do.

25:07 - So we'll see you on rebuttal

25:10 - yes I do yes.

25:11 - You have three minutes rebuttal and you want me to stop them? Yes.

25:15 - You have to stop now and sit down.

25:17 - And then when they finish, you'll come back up for three minutes.

25:20 - Okay. Thanks for asking.

25:22 - Thank you for asking for clarification.

25:24 - Counsel. Morning.

25:27 - May please the court.

25:29 - My name is Philip Bracknell, and I represent, PennDOT Bureau of Driver

25:32 - Licensing.

25:35 - I would ask this court

25:36 - to affirm the trial courts in these cases and,

25:40 - dismiss this appeal and allow PennDOT to reinstate the suspensions.

25:45 - What the police are asking is a major sweeping change,

25:49 - to the law that would upend, decades of case law and understanding.

25:55 - And really, this issue comes down to the consequences of refusing.

26:00 - And over the past few years,

26:01 - there have been numerous cases dealing with the consequences,

26:04 - but they really fall into three main categories.

26:07 - We have, some states, not Pennsylvania, but

26:09 - some states have come up with criminal consequences of refusing.

26:12 - They've criminalized the act of of refusal.

26:15 - Other states, almost in fact, all 50 states

26:18 - have a category of consequences involving evidentiary issues.

26:23 - The use of the fact that the person refused, and the prosecution of the DUI,

26:29 - the admission of that fact and the prosecution.

26:32 - The third category of consequences are the civil consequences,

26:35 - which are basically driver license suspensions for refusing.

26:39 - And and those three consequences really fall in the spectrum,

26:42 - of being more coercive to being less coercive.

26:45 - And the most coercive would be,

26:47 - of course, the criminal consequences, making it a crime to refuse.

26:51 - That's more coercive than allowing evidence of the refusal to be admitted.

26:56 - The criminal prosecution is the question.

26:58 - Excuse me, what is more coercive?

27:00 - Or is it whether this is, coercive and has a chilling effect

27:04 - on the Fourth Amendment constitutional right?

27:06 - Well, that's that is the question here.

27:08 - And we've had litigation.

27:10 - Burchfield was about the criminal consequences.

27:12 - We had the opinion from our Supreme Court about the evidentiary consequences.

27:17 - And what appellants have raised here is a challenge,

27:20 - a constitutional challenge to the civil consequences.

27:23 - And in in the Bell opinion, the, our Supreme Court said

27:27 - that the critical question is, is the consequence two coercive?

27:31 - Is it and therefore crosses the line and becomes unconstitutional.

27:35 - So in Burchfield, we saw the U.S.

27:37 - Supreme Court said that criminalizing refusals of blood draws was too coercive.

27:44 - But criminalizing breath samples being taken was not too coercive.

27:49 - In in the Bell case, our Supreme Court looked at the evidentiary consequences

27:53 - and said, those are not too coercive, even though they are directly involved

27:58 - in the criminal cases, they're not too coercive.

28:00 - They're constitutionally sound.

28:03 - And so what Helen's are saying, asking this court to do is to say that over here,

28:07 - where we have civil consequences, the least coercive,

28:10 - it would like this court to rule

28:12 - that those are unconstitutional as being too coercive.

28:16 - And that's I think what he's saying, too, is that they're not really civil

28:19 - consequences, that they're more criminal in nature.

28:23 - So I think that's the argument.

28:26 - I don't I don't agree with the argument, but I think that's what he's saying,

28:30 - that. That's right. Your Honor.

28:30 - I believe reviewing their briefs for both,

28:34 - appellants, there's an awful lot of,

28:39 - indistinct blur between constitutional rights

28:42 - that sound in criminal law and criminal cases and,

28:46 - and some civil, constitutional rights that are quite distinct.

28:50 - But but a very often is

28:53 - just all declared unconstitutional.

28:55 - And there's, there is definitely as, as this court and that's the questions.

28:58 - Notice

28:59 - a constitutional right to protect one's driver's license

29:02 - and to make sure the processes are followed.

29:04 - But that's very different to the constitutional protections

29:07 - in the Bill of rights under the Fourth Amendment.

29:09 - And article one, section eight of the Pennsylvania, Constitution.

29:12 - But the state.

29:13 - Oh, sorry. Go ahead.

29:15 - Is it the Dow distinguishable?

29:18 - I mean, it wasn't that one where I don't know, it kind of fell through the cracks.

29:21 - It wasn't a good situation for for Dot.

29:24 - Well, yes.

29:25 - And it's a didn't really uphold the purpose of the General Assembly's mission.

29:29 - Yeah.

29:30 - And but ours is very distinguishable because, that was one of the delay cases.

29:36 - Occasionally the convictions, for whatever reason, are reported late,

29:39 - depend on, under the statute, once it receives reported conviction,

29:43 - it has to impose the suspension regardless of how late it is.

29:46 - In Bender's case, it was, 28 months, I think.

29:49 - And and what the Supreme Court did in mid-August was they looked at the law,

29:54 - the basic rule that the suspension has to be imposed

29:58 - when the conviction is reported and said and Midler's case

30:01 - as applied to Middaugh, that violated substantive due process

30:05 - because there was that fundamental one middle was an outlier.

30:09 - Substantive due process really comes in the situation

30:12 - where law is applied in an outlier situation.

30:15 - And so he was an outlier because of this delay.

30:18 - It was fundamentally unfair.

30:20 - It was a bit, you know, sort of shocking to impose a suspension

30:24 - that long after the actual violation.

30:27 - And so then you have really the sort of the combination of it

30:31 - being an outlier and there being a fundamentally unfair aspect.

30:35 - Oh, but council didn't didn't the middle court also say that retention

30:41 - of the driver's license is a constitutionally protected interest?

30:44 - It is not the obtaining of it, but the retention of it is.

30:48 - But that but that does not make there obviously there's no, you know,

30:52 - perhaps overstatement of, of the strength of that constitutional protection.

30:55 - We don't have a right to drive a car or to have a driver's license.

30:59 - We have a right to travel, but a driver's license, the operating privilege

31:04 - is, is is just that a privilege, but that the court said

31:07 - it was a constitutionally protected interest, the retention of the life.

31:11 - That's right. And that's what's affected here.

31:14 - Well, that's right, that's right.

31:15 - But here and the distinction,

31:16 - the real distinction between middle and here is that in middle,

31:19 - the Supreme Court had to go to substantive due process to say this is an outlier.

31:24 - This is, fundamentally unfair for middle.

31:27 - And therefore we're going to say he gets to keep his license.

31:30 - He gets to he does not get the suspension.

31:33 - In this case, everything worked exactly as it should work.

31:36 - These are not outlier cases.

31:39 - They were arrested.

31:40 - They were suspected of DUI.

31:41 - They were warned that they refused.

31:44 - They that was reported.

31:46 - They got their suspension.

31:47 - This is the way the system is supposed to work.

31:49 - It is not an outlier.

31:51 - And two, there's nothing fundamentally shocking or unfair

31:54 - about what happened to them. It's right there in the statute.

31:56 - This is the statutory scheme.

31:58 - The General Assembly established. Right.

31:59 - And that's the part that's being challenged,

32:01 - that's unconstitutional, that that's in order to

32:06 - the judge contributing percentage judgments.

32:28 - So. It's.

33:09 - It's.

33:13 - That.

33:13 - That's. That's correct, Your Honor.

33:14 - And in fact, under the substantive due process analysis and even,

33:18 - section 1547 should be subject to rational basis analysis.

33:23 - There is that balancing

33:24 - of the purpose of the law versus the effect it has on people.

33:28 - The balancing in, in middle, it was determined

33:32 - that the situation was such an outlier and the delay caused, was

33:37 - was so unfair that that outweighed the concern about keeping,

33:40 - unsafe drunk drivers off the road.

33:43 - But in these cases, the General Assembly made the determination that this process

33:49 - of having these civil consequences, it is, protects

33:54 - the public's interest in having unsafe drunk drivers taken off the road.

33:59 - And in fact, the reality is for for my client, for the Bureau of Driver

34:03 - Licensing, the the DUI law, or, sorry, the implied consent law 1547

34:08 - is the best tool available to get drunk drivers off the road.

34:14 - Somebody who was

34:15 - arrested for a DUI could litigate and fight

34:18 - the criminal charges for a year or two years, even three years.

34:22 - But because of the way 1547 is set up, it is a purely civil process.

34:27 - Law enforcement completes the form, the DL 26 sense.

34:31 - It depends on it is processed and within a matter of weeks of

34:35 - of the incident, that driver license is suspended,

34:39 - in accord with what the General Assembly established

34:42 - and that driver is no longer allowed to drive.

34:45 - I have a question about hunt, but I don't know if Judge Wolf

34:47 - still has a question.

34:48 - I know, yeah, I just I just want to have a response to appellant's contention that,

34:53 - you can't punish somebody for exercising their right.

34:59 - So that's what he said on behalf of his clients, which is that

35:03 - if they exercise their right not to be, have,

35:07 - invasive, bodily blood draw,

35:11 - he, the appellants are saying you can't punish them.

35:15 - So I would like to know what your response to that is.

35:18 - Right. Well, the

35:21 - that's that's where some of

35:22 - that blurring happens because there is a right to refuse a search.

35:26 - And the Fourth Amendment

35:27 - and in our Constitution and basically both of them, to paraphrase,

35:31 - say people will be secure from unreasonable searches.

35:35 - So consent makes a search reasonable.

35:38 - So that's that's the first point.

35:39 - And under 1547 there's implicit consent when you get your driver's license.

35:43 - And then under the way the the statute requires

35:47 - at the scene of the arrest, the officer has to ask the driver

35:51 - to consent again, and they get a chance to explicitly consent

35:55 - or in this case, to refuse.

35:57 - And that's what they did.

35:58 - So there was no search in either of these cases.

36:01 - There was no unreasonable search.

36:02 - So they exercised that.

36:05 - Now the, the, the right to refuse

36:08 - the search under the Fourth Amendment and our Constitution.

36:11 - Basically the remedy for an unreasonable search is the evidence captured

36:16 - in that unreasonable search is excluded from the criminal prosecution.

36:21 - And the purpose of of those protections, those rights are to stop law enforcement

36:26 - from unjustly or unreasonably

36:28 - collecting information inappropriately for criminal prosecutions.

36:32 - The purpose of the suspension,

36:35 - the civil consequence in 1547, is to make people comply with the process

36:40 - of collecting evidence for the DUI prosecution, to make people,

36:44 - to, to get and then when they refuse,

36:46 - they thwart that system that was set up by the General Assembly.

36:50 - They are then lose their license.

36:52 - They lose their operating privilege

36:53 - for a period of time because they are not safe to be driving

36:57 - and then just a follow up, last question for me,

37:01 - in order to rule in the appellant's favor today by us, we would have to disregard

37:06 - all of the Supreme Court cases that say that,

37:10 - driving is a privilege in the Commonwealth of Pennsylvania, if you agree with that.

37:15 - Certainly. Certainly.

37:16 - That's a thrust that's coming through, is that driving is more than a privilege.

37:20 - It's some sort of right

37:21 - and protected, much more so than the previous case law has held.

37:26 - And so and this court, as I was saying at the beginning with that spectrum,

37:30 - would have to declare that something that is, is as of the three options,

37:34 - the least coercive is unconstitutional, even though our Supreme Court in the US

37:39 - Supreme Court has said more coercive consequences are constitutional.

37:44 - So can you address Commonwealth versus hunt?

37:46 - Yes.

37:47 - Actually, counsel was kind enough to give me a copy upon

37:51 - as we came into this morning.

37:52 - And I notice that even hunt distinguishes itself on page 49,

37:57 - and they basically have a very nice paragraph talking about how different

38:01 - 353 3755 is from 5040 1547.

38:08 - Unlike section

38:09 - 1547, section 3755 exclusively concerns blood

38:13 - testing rather than broader chemical testing.

38:17 - 3755 also provides no right to refuse to submit to a blood draw.

38:22 - And as I mentioned earlier, under 1547, there's an absolute right.

38:26 - People argue, you know,

38:27 - the drivers are given that opportunity, and it goes on in that, that nature.

38:31 - And I think, I think as well,

38:33 - there was the question about the driver and hunt being unconscious.

38:37 - And typically, you know, we've litigated

38:40 - and I've been in this court before, about 15, 47 cases.

38:44 - There's a very clear burden of proof that has to be met by both parties

38:48 - at the trial court level, and the department has to prove,

38:53 - at a, at a hearing about a chemical test refusal suspension,

38:57 - that the driver was arrested for DUI

39:00 - by an officer who had reasonable grounds to believe they were under the influence,

39:03 - to the point where they weren't safe to drive.

39:05 - They had to be warned of the consequences of refusing.

39:08 - They have to be asked to submit to a test and they have to refuse.

39:12 - That's happened in both of these cases, and that's in the appellant's brief.

39:17 - At that point, the department has met its burden.

39:19 - The burden shifts to the driver, and the driver can either prove

39:22 - one of two things either one, the driver did not knowingly or consciously refuse,

39:27 - or two, the driver has to show they were not physically capable

39:31 - of submitting to the test.

39:33 - And so the hunt really sounds with that first burden that

39:36 - that law enforcement can't arrest somebody who then passes out, stand over them,

39:41 - read them the warnings and say, you didn't respond, that's a refusal.

39:44 - And then report them for refusing.

39:46 - You can't you can't hold that somewhere against law enforcement,

39:50 - can't report somebody who was unconscious for refusing.

39:53 - Why doesn't the language in Burchfield that was used or otherwise

39:58 - penalized, it distinguished from just a crime.

40:03 - It just it distinguished from just a crime at Burchfield

40:06 - when it used the language or otherwise penalty finalized.

40:09 - And the third petitioner in that case,

40:11 - the you know, they said that it was, unconstitutional.

40:15 - So why doesn't that cover this situation

40:18 - when we're talking about civil penalties here?

40:21 - Well, in in Burchfield, the US Supreme Court, mentioned

40:25 - I and I believe was called out as dicta but basically acknowledged

40:29 - in their opinion that all 50 states have an implied consent law.

40:33 - All 50 states have the,

40:36 - civil consequences, they have the evidentiary consequences.

40:39 - And then some states have gone on and done the criminal consequences.

40:42 - And that's what Burchfield was addressing.

40:45 - But they said in passing that it

40:47 - the appellants and Burchfield did not challenge

40:51 - the evidentiary consequences or the civil consequences.

40:55 - And the Supreme Court said nothing they say should be seen

40:58 - to, criticize or say that those are unconstitutional.

41:02 - Well, do we have criminal and civil penalties

41:04 - and the implied consent law in Pennsylvania?

41:08 - Yes. Well, there are

41:10 - there are the penalty, the criminal penalty, the criminal consequence

41:14 - or the consequence that affects criminal proceedings,

41:18 - is the evidentiary consequence that the evidence can be

41:21 - it can be put into, the fact that the driver refuse

41:25 - can be used as evidence in the criminal prosecution.

41:30 - But again, our Supreme Court said that

41:32 - that is constitutional in the Bell opinion.

41:38 - Okay.

41:38 - If there are no further questions,

41:40 - are we gonna ask that this court, dismiss both these appeals?

41:43 - Thank you very much. Okay.

41:44 - Thank you.

41:48 - And you have three minutes, counsel.

41:51 - Thank you.

41:51 - Then I asked you to explain to the court what you want the court to do

41:56 - and anything else you want to talk about.

41:58 - But, yes, I have a few points I know.

42:01 - Go ahead. Okay. Thank

42:04 - thank you.

42:04 - So first of all, that section 3755, the other implied consent statute,

42:10 - the purposes the legislative purpose is to protect the public

42:15 - and to get blood from people

42:17 - by providing evidence.

42:19 - It helps the prosecution.

42:21 - But it was unconstitutional.

42:23 - So even though that's a legislative purpose that does not insulated

42:28 - from constitutional scrutiny, we've the same situation here.

42:32 - And the other thing about this is that to say drunk driving is a horrible crime.

42:38 - I actually had a personal experience

42:40 - losing a friend to drunk driving about 30 years ago.

42:43 - So I know about that. How bad it is.

42:46 - And, the United States

42:49 - Supreme Court, though over and over again itself,

42:52 - the Fourth Amendment applies the same to all offenses.

42:56 - Mincey versus Arizona.

42:58 - Counsel.

42:58 - Counsel, may I ask you to just pause for a moment?

43:01 - First off, I'd like you to answer judge McCullough's question.

43:05 - What do you want this court to do?

43:08 - But before you get there, your citation

43:10 - of the Fourth Amendment promise something with me.

43:13 - I saw that you cited Edmunds, but you did not go through

43:16 - any Edmunds analysis senior briefing in either case.

43:20 - Does this it might understand them that you're not looking

43:23 - at a state constitutional violation here.

43:27 - You're just relying on the US Constitution?

43:29 - No, I'm relying on the Pennsylvania Constitution as well, which grants

43:33 - more rights under the Fourth Amendment and more due process rights,

43:37 - as McDowell said.

43:38 - Do we need it? Edmunds analysis, though, to

43:41 - to to discern that.

43:42 - So I mean, the question is whether this waiver or not

43:45 - and the Pennsylvania Supreme Court has not held this waiver.

43:47 - If you don't get to a full Edmunds analysis,

43:50 - it might be helpful to the court, but it's not waiver, so it's not required.

43:53 - I've I've presented squarely the issue, before the court.

43:58 - And as far as what I want

43:59 - the relief in this case is to reverse the license suspension.

44:03 - It's an unconstitutional license suspension.

44:06 - And the Fourth Amendment, as of saying the state supreme Court

44:10 - has said it's the same for every offense

44:13 - didn't versus Arizona is a homicide case.

44:16 - So we're not going to excuse a warrant in this case

44:20 - unless we start with six digit circumstances.

44:23 - It's the same.

44:24 - And they said it could be a slippery slope for other crimes.

44:27 - They've done that in other cases.

44:29 - And the case directly on point is McNeely,

44:33 - the 2013 case,

44:36 - the majority of the court recognized

44:39 - how serious drunk driving is as a problem, it said.

44:44 - Nevertheless, we have to enforce the Fourth Amendment,

44:49 - and that's why we're holding that.

44:50 - If you want blood, you need a warrant

44:54 - or you have to show it in circumstances or actual voluntary consent.

44:59 - Again, this is not crippling the Commonwealth.

45:01 - The rest of section 1547 is still constitutional.

45:06 - As far as breath,

45:08 - I can take breath without

45:10 - asking for permission from the person and they can punish him.

45:14 - Refuses to give breath.

45:17 - Okay, counsel, now you are over your time.

45:20 - Is there anything else that you need to tell the court that you haven't already?

45:24 - I think you've covered it all.

45:26 - Nothing critical.

45:27 - Okay. Thank you very much.

45:28 - Good job. Both sides.

45:30 - And the next case is 82 and 82.

45:32 - A two court consolidated cases.

45:35 - Pennsylvania American Water versus the PUC and Borough of Brentwood

45:39 - versus the PUC.

45:44 - Next up,

45:45 - we have two consolidated appeals filed by the Borough of Brentwood

45:49 - and the Pennsylvania American Water Company, challenging

45:52 - the decision of the Pennsylvania Public Utility Commission,

45:55 - or the PUC to reject the Pennsylvania

45:58 - American's application for a Certificate of Public Convenience

46:02 - to allow it to acquire the borough's wastewater system.

46:06 - In making its decision, the PUC concluded that the benefits

46:09 - of the transaction were outweighed by the potential harm to customers.

46:14 - As background,

46:15 - the borough currently owns and operates its own sanitary sewer system.

46:20 - The system serves more than one third of the borough's 10,000 residents.

46:24 - The borough system transports the wastewater to the Allegheny County

46:28 - Sanitary Authority, or of sand, who has intervened in this matter.

46:33 - The borough sewer sewer system is aging

46:35 - and in need of major operational upgrades.

46:39 - In arguing that the PUC aired and denying the application,

46:43 - the borough argues that the PUC misapplied the Public Utility Code,

46:49 - which provides that the PUC shallow water certificate of public convenience,

46:53 - where the transaction is necessary or proper for this service, accommodates

46:59 - convenience or safety of the public.

47:02 - The borough argues that the PUC ignored the phrase or proper.

47:07 - Additionally, the borough points to section 1329 of the Public

47:11 - Utility Code, which it indicates is designed to incentivize large utilities

47:17 - to acquire small wastewater systems regardless of their viability.

47:21 - Despite an acknowledgment that such acquisitions would result in rate increases.

47:28 - Pennsylvania

47:29 - American argues that the PUC appeared in concluding that the benefits

47:32 - of the transaction did not outweigh the detriments, arguing

47:36 - that the PUC exaggerated the adverse impact

47:39 - on customers in the borough and that the transaction,

47:42 - if approved, would affirmatively promote

47:45 - the public interest in a substantial way.

47:49 - In response, the PUC argues that it properly

47:51 - evaluated the application and determined that it did not satisfy the standard,

47:57 - noting, among other things, that Pennsylvania water is the only Cape,

48:02 - is only capable of maintaining the status quo of the borough's wastewater system.

48:07 - The system is functioning and viable in Pennsylvania waters,

48:10 - and existing customers would be at risk

48:13 - of supporting the costs of acquisition in the form of rate increases.

48:17 - With that, let's hear what the parties have to say.

48:24 - Council.

48:25 - Are you sharing time or you're the going to take the 20 minutes?

48:28 - Yes, your honor, we are sharing time

48:30 - with designated petitioner, Pennsylvania American Waters Council, David Gambino.

48:34 - We've agreed to split our time evenly, so I'll be taking 7.5 minutes,

48:37 - and he will be taking the other 7.5 minutes.

48:40 - You okay?

48:42 - Okay. Do

48:44 - you have the clock set, madam President?

48:46 - Judge, may it please the court?

48:48 - My name is Melissa Blanco, and I have the honor

48:51 - and privilege of representing the borough of Brentwood.

48:52 - In this case, as I mentioned before, there are two designated petitioners

48:57 - in this case, as they are consolidated cases.

48:59 - The borough of Brentwood and Pennsylvania American Water.

49:02 - We have agreed with, Pennsylvania American Water's counsel, David Sam Vito,

49:05 - that we will be splitting our time evenly.

49:07 - So I will be taking 7.5 minutes, and he will be taking 7.5 minutes.

49:11 - And of the 7.5 minutes, I would like to reserve

49:13 - three minutes for rebuttal, which I realize is a lot of math.

49:16 - So I will my principal presentation will be 4.5 minutes,

49:20 - and unless the court has any questions, I will begin.

49:24 - Your honor, the heart of this case

49:26 - starts and ends with the plain text of the statute.

49:29 - Section 1103 says the Commission shall award

49:32 - a certificate of public convenience if the transaction is necessary or proper

49:36 - for the public service, accommodation, convenience or safety.

49:41 - The Commission in this case ignored that standard.

49:44 - It collapsed necessary or proper and to necessary only and it applied.

49:49 - And I borrowing from this court's earlier decision in Cicero,

49:53 - it used a new benefits standard that has no basis in the code.

49:58 - But when we apply the correct standard in this case, the answer is clear

50:01 - this transaction is proper.

50:03 - It modernizes and fixes a century old system that has been under

50:07 - environmental remediation orders for 16 of the last 19 years.

50:12 - It brings in industry experts who provide around the clock service.

50:17 - It allows the municipal employees to focus on municipal

50:20 - endeavors, and allows the police to return to policing.

50:23 - It delivers $19 million

50:25 - to the borough to invest in its municipal endeavors,

50:29 - and also to increase its $900,000 worth of debt.

50:33 - And if that's not all,

50:35 - the borough of Brentwood, through its elected officials, officials spoke

50:38 - very loud and very clearly when they voted to accept this transaction.

50:43 - They said modernization and fixing our failing system is worth the cost.

50:48 - Isn't this really a weighing of facts, though, to determine what is proper?

50:53 - Is it,

50:55 - if you read Cicero and of course you have, it seems to me

50:59 - that the judge continually, or in that case was saying that it

51:03 - the scale can tip one way, it can tip the other.

51:05 - And if you're weighing the evidence which is done here, wouldn't you,

51:09 - say that there's substantial evidence to support the decision?

51:14 - No, Your Honor, and I can explain why in two ways.

51:16 - The first is, in order to determine

51:18 - what proper means, there has to be a legal definition.

51:20 - That's not a definition that gets relegated to the agencies.

51:23 - That is a judicial interpretation question.

51:26 - And so step one is to decide what does proper mean.

51:29 - We know from the dictionary definition what it means.

51:30 - It means suitable for a particular purpose.

51:33 - So that's step one.

51:34 - In terms of reviewing the evidence, I would agree with, Your Honor,

51:37 - if there was actually competent evidence offered by my friends on the other side

51:40 - at the commission.

51:41 - But there wasn't.

51:42 - There was speculation and there was an improper legal opinion.

51:45 - That's the extent of their evidence on the question of affirmative public benefits,

51:49 - if the status quo is being maintained, does that push it to being proper?

51:54 - Your honor, if the status quo is being maintained,

51:56 - it is proper because in and I should push back and say,

51:59 - I don't think that's the case we have here.

52:01 - And perhaps that hypothetical might present a different answer.

52:03 - But what we have here is a situation where we're not maintaining the status quo.

52:07 - We have a century old system that needs to be repaired,

52:11 - and it needs to be repaired imminently,

52:13 - because it's been under these remediation orders.

52:15 - And a point that's important to note there is remediation orders are exactly that.

52:19 - The remediation orders, they're not saying,

52:22 - hey, your system is great, but we're going to put you under

52:24 - remediation order anyways.

52:25 - They're saying your system is bad and you need to get into compliance with it.

52:29 - The fact that the borough of Brentwood system

52:31 - has been under these remediation orders for as long as it has, speaks volumes

52:35 - about the actual status and, fitness of its current system

52:40 - and so for that reason, this transaction doesn't meet the status quo.

52:43 - But to more clearly answer your question, Your Honor, I think if a transaction

52:47 - were to meet the status quo,

52:48 - we would still have to go back to what the text of section 1103 says.

52:51 - 1103 it doesn't say if the transaction is necessary or proper,

52:55 - but also changes the status quo.

52:56 - That's adding additional words into the statute. And

53:02 - so happy going forward.

53:04 - I'm sorry, Your Honor, what will happen going forward?

53:06 - I have a concern about that.

53:08 - Do you mean in terms of, how to apply the standard moving forward?

53:12 - Well, no.

53:13 - If if you're not in compliance

53:15 - because Brentwood has had all these problems over the years,

53:18 - then what is the fix of how it's going to be in the better public interest?

53:23 - Your honor, there isn't one other than the transaction

53:26 - that's proposed in this situation, and that's exactly what the General

53:28 - Assembly made in its determination when it enacted section 1329.

53:32 - It said, hey, listen, we know Pennsylvania's

53:35 - water systems are really old. We need to do something.

53:37 - And we recognize

53:38 - we have almost virtually no incentive for these more sophisticated companies

53:42 - to come into Pennsylvania and fix the systems.

53:44 - So let's enact section 1329 and encourage it.

53:46 - And we see that in this transaction here, Pennsylvania American came in and said,

53:50 - we'll fix your water system and we'll will pay you for it.

53:52 - And Brentwood said, oh my gosh, thank you.

53:54 - We've been trying and we couldn't figure it out.

53:56 - So I agree with Your Honor that I think that if this transaction is not approved,

54:01 - then I think that we're going to be in kind of a murky territory.

54:06 - And so unless the court has any further questions, we're asking that the

54:09 - that this court reverse the commission's decision. Okay.

54:12 - Thank you.

54:12 - And you have seven minutes and a half minutes and.

54:17 - I'll ask your co-counsel.

54:19 - Your co-counsel did not ask for rebuttal time.

54:22 - Did you want to reserve something you could answer?

54:25 - Yes, Your Honor.

54:26 - How much? Two minutes, please. Two minutes.

54:28 - Come off of your seven and a half, then. Thank you.

54:31 - Thank you very much.

54:32 - Good morning.

54:33 - President Judge Cohn and other honorable

54:36 - judges of the Commonwealth Court may please this court.

54:39 - My name is David Zambello with the law firm of Kozan O'Connor.

54:42 - And I have the privilege of representing Pennsylvania American

54:45 - Water Company in this matter.

54:48 - Your honor, I'm here to argue for regulatory consistency and certainty

54:52 - in decision making by the Pennsylvania Public Utility Commission.

54:56 - I do not view this case.

54:57 - My client does not view this case about the Cicero decision

55:01 - and the standard for approval under 1329, that is currently the Commonwealth

55:05 - Court's decision is currently the law of the land on that.

55:09 - It's under appeal to the Pennsylvania Supreme Court.

55:11 - But it's the law of the land. And that's how the parties

55:13 - in the commission approached the Brentwood application.

55:17 - They applied the Cicero standard.

55:19 - So this appeal is not about Cicero.

55:21 - That's outside.

55:22 - But the PUC.

55:23 - Didn't they say that the water system

55:26 - purchase was not necessary?

55:29 - Once the PUC says it's not necessary, what is the court supposed to do with that?

55:36 - Your honor, the as counsel for Brentwood

55:40 - explained the standard and the PUC said it's not necessary.

55:44 - The appeal that we are bringing to this court is about the fundamental issue

55:48 - is whether the Public Utility Commission, its final order,

55:52 - was sufficiently detailed and consistent with prior and subsequent decisions

55:57 - to enable this honorable court on appeal

56:00 - to determine the controversy, questions.

56:04 - The decision was not this case.

56:06 - More so than being about Cicero is more in line

56:10 - with the decision that was recently issued by this court in Philadelphia

56:16 - Industrial Consumer Users Group versus a Pennsylvania Public Utility Commission.

56:20 - It was a three judge panel and judge McCullough,

56:23 - Judge Wolfe ruled that the commission did not sufficiently explain its decision.

56:28 - And there were inconsistencies in this because in the decision

56:31 - such that this court cannot make a reasonable determination

56:35 - of whether the PUC had done its job.

56:37 - That's what this case is about.

56:39 - This case involves that if you review

56:42 - the commission's order, there are internal inconsistencies.

56:46 - There are inconsistencies with prior 1329 decisions,

56:50 - and there are inconsistencies with what

56:53 - the Commission has done in 1329 decisions since this case.

56:57 - And we applied to the court, and the court allowed,

57:00 - took judicial notice of three subsequent decisions.

57:03 - I would encourage you to read those decisions and compare

57:06 - those to the decision that was made in Brentwood.

57:09 - So that's what this case is about.

57:11 - It's about consistency and certainty in regulatory decisions by the PUC.

57:17 - Our briefs detail a number of these inconsistencies

57:21 - and explain why this court should reverse and approve the acquisition.

57:26 - But one of the ones I'd really like to highlight to you is the Commission's

57:31 - reliance on a concept

57:34 - called the reasonableness review ratio.

57:37 - At the time of this decision, the Commission had a tentative

57:40 - implementation order regarding 1329, where they were looking to implement

57:44 - a reasonable US review ratio and RR, and that was intended to be a guidepost,

57:49 - sort of a proxy, where they would determine a ratio

57:54 - using ten, using proxy companies, investor owned utilities,

57:58 - where they would look at the enterprise value

58:01 - over the net property, plant and equipment of those facilities.

58:04 - And they would come up with a ratio, sort of a proxy to compare a the ratio

58:09 - that would result from the the purchase price, the fair market

58:15 - value, purchase price over the depreciated original cost of the utility company.

58:19 - And then they would compare that to the IRR.

58:21 - The tentative implementation order was pending

58:24 - at the time of the Brentwood decision.

58:26 - Yet if you read the Commission's documents in this case, it's pretty clear

58:30 - that the commission applied an RR like analysis to this case.

58:36 - And that was before

58:37 - the tentative implementation order was became final.

58:41 - And despite the fact that the final order said

58:44 - that it wouldn't be applied retroactively to applications,

58:49 - purchase agreements that were negotiated prior to the implementation of the RR.

58:55 - Now, this is significant.

58:56 - In the Brentwood case, the ratio was approximately 2.7,

59:01 - so the purchase price, which is determined by, an average of appraisals,

59:06 - two from two expert appraisers over the depreciation.

59:10 - The depreciate original cost was approximately 2.7 at the time.

59:14 - The RR would have been 1.68.

59:16 - Now, if you look at the subsequent decisions of which this court took

59:20 - judicial notice, in particular, the Beaver Falls decision,

59:23 - the the Commission approved the acquisition

59:26 - of the Beaver Falls system and the RR

59:31 - in that case was, I'm sorry, the

59:35 - the ratio of the purchase price

59:38 - over the depreciate original cost was 5.94.

59:43 - At the time, the RR was 1.63.

59:49 - In Greenville, another acquisition by Aqua,

59:53 - the RR at the time was 1.68.

59:56 - 530 Yet the ratio of the rate making rate base fair market value

01:00 - 04.367 rate, baking rate rate making rate based was over depreciate.

01:00 - 07.036 Original cost was 2.63.

01:00 - 11.007 That is very similar to the Brentwood R ratio.

01:00 - 14.944 So there are tremendous inconsistencies in what the Commission is doing.

01:00 - 18.581 I note that I'm out of time, but I'd encourage you to read our brief

01:00 - 20.116 because there are other inconsistencies,

01:00 - 23.620 namely with regard to environmental benefits.

01:00 - 25.855 If you look at the Butler acquisition

01:00 - 28.858 immediately prior to the Brentwood acquisition,

01:00 - 33.429 the commission said that we'll let you talk when you come back on rebuttal.

01:00 - 36.432 Okay. So thank you. Thank you.

01:00 - 39.736 Okay.

01:00 - 42.238 Are you sharing time?

01:00 - 42.705 I am,

01:00 - 47.977 I'm going to be sharing five minutes with, Okay.

01:00 - 50.346 Counsel.

01:00 - 52.115 So you want ten

01:00 - 55.418 you're giving I will take ten whether we need it or not.

01:00 - 57.754 Okay. I'll take it.

01:00 - 00.590 Well, okay.

01:01 - 01.591 All right. Good morning.

01:01 - 04.127 May it please the court? My name is Aaron Tate.

01:01 - 07.130 I will be representing the Public Utility Commission.

01:01 - 11.300 This case is not a case about the reasonableness review ratio.

01:01 - 13.703 It's not a case, really about 1329.

01:01 - 15.738 It is rooted in 1103.

01:01 - 16.639 And it's a case about

01:01 - 20.677 whether the benefits of this transaction will outweigh the harms.

01:01 - 22.779 Were you also found it wasn't necessary.

01:01 - 27.116 And I'm the borough been in violation of the state

01:01 - 31.087 and environmental regulations since 2005.

01:01 - 36.059 It was under an administrative consent order for 16 of the last 18 years.

01:01 - 39.729 Why hasn't it demonstrated that it's unable

01:01 - 42.732 to resolve the environmental problems? Why?

01:01 - 45.768 So how can the PUC say it's not necessary?

01:01 - 48.971 Well, the as with respect to the environmental issues,

01:01 - 52.942 this configuration of this system is unique

01:01 - 58.014 in all of the cases that the PUC has evaluated under 1329,

01:01 - 01.818 part of the part of the environmental issues stem from

01:02 - 06.889 there is inflow into the system coming from municipalities outside of Brentwood.

01:02 - 11.027 So Brentwood there has introduced no evidence

01:02 - 14.630 that they're unable to comply with these orders that they're under with

01:02 - 16.666 in the road.

01:02 - 19.902 They've demonstrated and there's limited control that they could have

01:02 - 23.139 through this inflow from the other systems.

01:02 - 26.142 So with that being said, they would Pennsylvania

01:02 - 29.979 American would be maintaining the status quo that Brentford's

01:02 - 34.584 that Brentwood is with respect to those environmental enhancements.

01:02 - 39.655 But do you see consider the benefits to the borough of this transaction.

01:02 - 42.125 Will they consider the benefits to all the parties?

01:02 - 45.128 I mean, as they're required to do so under 11 and three?

01:02 - 48.264 They consider the benefits to Brentwood.

01:02 - 53.402 They consider the benefits to current, Pennsylvania American customers

01:02 - 57.306 and also you have to consider Brentwood is not a system,

01:02 - 58.975 and you can't look at it in a vacuum.

01:02 - 02.478 It relies on other municipalities to function.

01:03 - 05.782 So you have to look at how those other municipalities

01:03 - 09.185 will be impacted as a result of this transaction.

01:03 - 11.687 So how will they be impacted? Well,

01:03 - 14.423 these municipalities are

01:03 - 17.927 part of the regional I think it's alkaline is how we pronounce it.

01:03 - 19.428 Regional system.

01:03 - 22.565 So, anything

01:03 - 25.802 below there's agreement that these municipalities have entered

01:03 - 29.238 into and those agreements I think in the

01:03 - 32.241 our briefs have discussed the agreement.

01:03 - 35.278 Those agreements will withstand this transaction

01:03 - 38.581 whether it is would it be approved or not.

01:03 - 44.987 And these agreements are necessary for these entities to function

01:03 - 47.990 as a complete system, because as it stands right now,

01:03 - 51.227 Brentwood is not a complete

01:03 - 52.261 wastewater system.

01:03 - 58.100 It merely, collects wastewater not only from its own residents,

01:03 - 01.204 but also from residents outside of Brentwood,

01:04 - 04.307 and then sends that waste on for treatment.

01:04 - 07.910 Why does the purchase, why does the purchase

01:04 - 10.479 have any negative impact on that?

01:04 - 11.080 On the.

01:04 - 14.083 Well, the Commission determined that.

01:04 - 16.686 But first of all, the Commission would have

01:04 - 21.490 no jurisdiction over the rates that would be charged by alkaline.

01:04 - 22.859 The rates are separate.

01:04 - 26.462 Brentwood only charges for its collection services.

01:04 - 30.132 I thought was a moot issue with the commission,

01:04 - 33.736 but it was still a factor considered nonetheless.

01:04 - 36.138 Yes, but also,

01:04 - 40.877 the commission has no jurisdiction over these other authorities.

01:04 - 45.348 So Pennsylvania American doesn't inherit these agreements.

01:04 - 48.551 Brentwood is still obligated under these agreements.

01:04 - 52.655 Whether Pennsylvania American purchases the system or it doesn't.

01:04 - 56.459 Is that the real issue that the PUC wants to control the rate,

01:04 - 59.462 and they won't be able to know the issue

01:04 - 03.699 is that the benefits of this transaction do not outweigh

01:05 - 07.103 it's a regionalization issue, and the Commission discussed it at length.

01:05 - 09.839 It frustrates regionalization.

01:05 - 12.108 And it also there is going to be a rate increase

01:05 - 16.545 because all 1329 transactions result in a rate increase.

01:05 - 19.448 But did you say the agreements are all going to be in place?

01:05 - 23.452 And regardless of what happens, even if they came in,

01:05 - 26.656 I thought I heard you say Pennsylvania American is not obligated.

01:05 - 30.059 Under those agreements, Brentwood would still be obligated under those agreements.

01:05 - 35.731 So what's the downside

01:05 - 38.267 if Pennsylvania American chooses not to comply

01:05 - 42.071 with those agreements, Brentwood still has to comply with them.

01:05 - 47.777 So the downside there's there's no language when American water comes in

01:05 - 50.980 that they're not going to be responsible for honoring those agreements.

01:05 - 52.782 I would think that would be part of the agreement.

01:05 - 55.785 They could enter into their own agreements, but

01:05 - 59.989 then you have, you know, you're stacking contracts on top of contracts.

01:05 - 03.059 And there's I mean, you do the commission address that as a fact?

01:06 - 06.362 Well, they adjust the configuration of the system,

01:06 - 09.765 and it was the configuration of the system and how it would frustrate

01:06 - 14.136 these neighboring municipalities and the residents of that.

01:06 - 18.240 Typically when you enter, when you make a purchase, you can declare

01:06 - 21.077 what the obligations are of all the parties, like, okay, well,

01:06 - 23.746 you're going to step into our shoes and therefore you're going to,

01:06 - 27.416 you know, be responsible for all of the liabilities that we have.

01:06 - 29.385 Right? But this is,

01:06 - 31.654 situation

01:06 - 34.690 where there was other I mean, these agreements,

01:06 - 38.928 the regionalization aspect of it, as well as the,

01:06 - 42.932 maintaining the status quo, which is what the commission determined,

01:06 - 46.102 doesn't sound like the status quo is a good thing to maintain.

01:06 - 46.702 What's that?

01:06 - 52.008 It doesn't sound like the status quo is a good status quo to maintain

01:06 - 56.178 this status quo in this city, if they if they've had a B,

01:06 - 59.148 you know, they're out of compliance for all these years.

01:06 - 00.316 You want to maintain that.

01:07 - 02.451 But there's they're addressing it.

01:07 - 06.288 The record evidence shows that Brentwood has been addressing

01:07 - 09.291 for 16 of the last 18 years.

01:07 - 12.495 They have been under an an order and have not been able

01:07 - 15.765 to fully or sufficiently address it.

01:07 - 18.501 They have been in my I mean, I'm sorry. You can continue.

01:07 - 19.769 I apologize.

01:07 - 20.536 Go ahead.

01:07 - 22.905 If you just you can answer that.

01:07 - 25.941 My my my my voice came out too early.

01:07 - 26.575 I'm sorry.

01:07 - 29.245 Well, the evidence,

01:07 - 30.579 the commission consider evidence

01:07 - 33.616 as they have been addressing these compliance issues

01:07 - 37.686 and then the limited control that they would have to address it.

01:07 - 41.724 I mean, the commission I think they stated the system assets consist of pipes.

01:07 - 47.730 So, okay, Brentwood has enough capital to replace those and the evidence doesn't

01:07 - 52.601 show the front just waving the white flag going, help, help.

01:07 - 55.337 Yeah. We could do this. Oh, sorry.

01:07 - 57.640 What you're saying is Judge Dumas had a question.

01:07 - 58.741 She didn't get in yet.

01:07 - 02.678 My question is, should we should we should we wait

01:08 - 06.248 for the decision to come down regarding Cicero?

01:08 - 11.387 As it relates to, especially the evidentiary issue, which

01:08 - 16.058 I think really is, is huge here is, is whether yours,

01:08 - 19.228 the substantial evidence,

01:08 - 22.231 is really enough or when is it enough?

01:08 - 22.731 Right.

01:08 - 25.968 I think really that's the dance that that's really trying to

01:08 - 28.370 to be figured out.

01:08 - 28.637 Right.

01:08 - 33.509 So should should we wait for Cicero or do you think we have enough here

01:08 - 36.312 to really make a decision that is up to this court.

01:08 - 39.548 But Cicero tells us what is substantial enough.

01:08 - 41.851 It tells us what is substantial enough.

01:08 - 46.021 If the Commission is obligated to apply the existing law to these transactions,

01:08 - 49.024 then it is also obligated to follow Cicero,

01:08 - 52.027 which is what the Commission tried to do here.

01:08 - 54.396 I have a question. So,

01:08 - 57.299 entity comes to the PUC and says

01:08 - 01.036 we're struggling, we're really underwater and we need help.

01:09 - 04.006 And the PUC knows that we need help

01:09 - 07.610 because you keep issuing these administrative orders against us.

01:09 - 12.348 And my understanding is that basically is what Brentwood has done here.

01:09 - 16.218 So what does the PUC want Brentwood to do?

01:09 - 19.522 Well, I can't answer for the PSC, but and following the law.

01:09 - 20.656 Oh no no no.

01:09 - 25.728 Can't you you're I mean you see like I mean the PUC has said

01:09 - 32.768 that this is not enough Brentwood and the status quo would be maintained.

01:09 - 35.971 So they're saying on these facts that have been presented, transaction

01:09 - 39.775 is not going to remedy any of the things that Brentwood couldn't remedy for itself.

01:09 - 42.611 Correct. It's they're just maintaining the status quo.

01:09 - 44.079 So they might need help.

01:09 - 46.882 This is not the transaction that's going to get them that help.

01:09 - 47.316 Right.

01:09 - 51.353 And part of that is the configuration of this system.

01:09 - 55.591 Because when these entities come before the commission under 1329,

01:09 - 59.195 we are obligated to look at them.

01:09 - 02.798 The commission is obligated to look at them on the facts specific to that case.

01:10 - 06.635 And this case was a matter of first impression for the commission.

01:10 - 10.506 We have never had a, case in the allocation system

01:10 - 13.509 before.

01:10 - 17.379 If there's no more questions, I will conclude.

01:10 - 19.448 And by saying that we ask this court

01:10 - 22.451 to affirm the Commission's order, because the commission

01:10 - 26.322 the record has substantial evidence to support the Commission's determination.

01:10 - 28.157 Thank you. Thank you.

01:10 - 31.160 Your co-counsel has five minutes.

01:10 - 46.709 May it please the court.

01:10 - 49.845 My name is Jacob Guthrie, and I represent the Office of Consumer Advocate.

01:10 - 54.316 You see, it requested this court affirm the PUC s order for three reasons.

01:10 - 57.453 First, because the PUC did not commit an error of law,

01:10 - 00.189 and it supported its findings with substantial evidence

01:11 - 04.126 when it found that the acquisition of the Brentwood system would not result

01:11 - 07.363 in affirmative public benefits because it would remove existing

01:11 - 10.366 benefits from under Bruntwood ownership, and it would create new harms.

01:11 - 13.802 Second, the PUC did not error when it assigned

01:11 - 16.805 a little weight to the claimed benefits of the acquisition.

01:11 - 20.576 And third, the PUC did not error in its statutory construction of section

01:11 - 24.079 1103 because it correctly applied the City of York Standard.

01:11 - 26.982 As to my first point, it has

01:11 - 30.753 two parts, beginning with the removal of existing benefits.

01:11 - 33.822 As we already discussed today,

01:11 - 37.326 regionalization already exists in a way.

01:11 - 41.163 The benefits Bruntwood customers, and it provides environmental

01:11 - 42.898 and economic benefits through Bretton Woods

01:11 - 45.901 participation in the and interceptor system.

01:11 - 50.105 There's environmental and economic benefits that the PUC looks for

01:11 - 52.041 in order to implement its policy

01:11 - 55.044 favoring and supporting regionalization and consolidation.

01:11 - 59.114 See, the PUC found that

01:11 - 01.650 she has competing or conflicting interests

01:12 - 06.855 with the other municipal customers of the Ackerson system, and as a result,

01:12 - 10.092 these interests threaten to undermine this existing regionalization.

01:12 - 12.728 Next,

01:12 - 16.965 the acquisition would create right harms and not just rate increases.

01:12 - 20.969 In this case, these rate increases would be rate harms because they come

01:12 - 24.773 without a commensurate improvement in quality of service or facilities

01:12 - 29.845 from when customers could see rate increases of up to 107%.

01:12 - 31.580 The acquisition were approved.

01:12 - 33.282 If that's what it takes to get,

01:12 - 37.986 let me say this.

01:12 - 42.024 Without,

01:12 - 45.027 Pennsylvania Aqua in this,

01:12 - 48.564 transaction, left alone,

01:12 - 50.933 wouldn't the utility have to raise rates to deal

01:12 - 53.936 with all the issues that they have?

01:12 - 58.273 Yes, Your Honor, so my point is that if I'm making a point,

01:12 - 01.510 my point is that you're you're saying that,

01:13 - 04.513 if the transaction went through, if we reversed,

01:13 - 07.416 then, rates would go up,

01:13 - 10.419 but they're going to have to go up anyway.

01:13 - 14.390 Yes, Your Honor, but the record doesn't show that the race would need

01:13 - 17.593 to go up nearly as much as they would under Pennsylvania American owners.

01:13 - 20.295 It's a matter of gradation.

01:13 - 21.497 It's a matter of gradation.

01:13 - 23.265 Yes. Your honor,

01:13 - 27.136 is there information in the record to say how much the rates would actually go up?

01:13 - 29.171 Because I know your co-counsel

01:13 - 31.507 also said the rates would definitely go up regardless.

01:13 - 35.778 If how much the rates would go up under broken ownership.

01:13 - 37.880 There is no evidence in the record.

01:13 - 41.683 At hearing when asked the witness for the borough

01:13 - 43.085 did not provide that information.

01:13 - 46.088 They said they hadn't crunched the numbers on it

01:13 - 49.024 because I think what my colleague is saying,

01:13 - 49.792 and that's kind

01:13 - 53.595 of what I was trying to get out before, like changes are going to have to be made.

01:13 - 56.765 So it's almost like the rates are going to go up just to maintain the status quo,

01:13 - 00.169 which is not acceptable to the PUC because of all the administrative orders.

01:14 - 02.838 So it's clear,

01:14 - 05.374 but nobody's moving anything forward.

01:14 - 08.210 And so it's where is the money best spent.

01:14 - 11.847 So I was just trying to get a better understanding of where

01:14 - 14.416 the PUC sat on that in its decision.

01:14 - 17.820 So is it really that you're going to lose control?

01:14 - 20.289 This PUC is going to lose control.

01:14 - 22.491 If American water goes in there

01:14 - 24.493 and they're going to do something different

01:14 - 27.796 and then they're not going to follow what the PUC wants as far as having

01:14 - 30.766 all these or, you know, municipalities working together.

01:14 - 34.770 But your Honor, the PUC doesn't currently regulate Brentwood.

01:14 - 39.541 And so the PUC wouldn't see a loss of control

01:14 - 42.010 over the Brentwood system if it were acquired.

01:14 - 46.915 What would happen is that the PUC would be would be required to review

01:14 - 50.118 under the public utility code, some of the unique aspects

01:14 - 53.722 of participation in the municipal system, such as the intermediate

01:14 - 57.326 trunk lines that provide free service to upstream municipalities.

01:14 - 58.193 These are.

01:14 - 03.065 It's a highly, highly complicated network of contracts.

01:15 - 07.436 As counsel for the PUC mentioned that if the PUC were to wade

01:15 - 11.974 into what, create a significant regulatory burden.

01:15 - 16.411 Thank you.

01:15 - 22.384 Yes. Your

01:15 - 26.255 Honor, there is, in fact, nothing in the record indicates not only

01:15 - 30.526 that Brentwood is not currently complying with, its environmental obligations.

01:15 - 32.194 There's nothing in the record to show

01:15 - 35.998 that Brentwood could not comply with its environmental obligations.

01:15 - 40.569 And no, not only that, it can do so at a lower cost to customers over time.

01:15 - 46.341 Next, the PUC, correctly assigned little weight to the claimed benefits

01:15 - 50.445 of the acquisition, namely the benefits of the exchange of the purchase price,

01:15 - 53.882 which the record doesn't show would translate into public benefits.

01:15 - 57.886 And next, the expansion of Pennsylvania American's low income program.

01:15 - 02.157 Well, it's certainly a benefit, to expand the low income program.

01:16 - 05.928 It would only apply to a small portion of the few customers who would be

01:16 - 06.962 able to enroll in it.

01:16 - 09.865 And the third reason that,

01:16 - 13.802 this court should affirmed the decision of the PUC is

01:16 - 17.606 because the PUC did not error in statutory construction of section 1103.

01:16 - 21.109 It correctly applied City of York, which interprets

01:16 - 24.546 1103 and defines what it means for an acquisition to be proper.

01:16 - 28.383 In order for an acquisition to be proper, it must affirmatively benefit

01:16 - 30.485 the public in some substantial way.

01:16 - 34.923 That is exactly the, the level of review provided by the PUC in this case.

01:16 - 37.292 Okay.

01:16 - 40.295 If I may have a moment to briefly conclude, go ahead.

01:16 - 43.765 For these reasons, the PUC correctly applied section 1103

01:16 - 45.400 and its implementing case law

01:16 - 47.836 and supported its conclusion with substantial evidence

01:16 - 49.538 when it found the proposed acquisition

01:16 - 52.908 would not affirmatively benefit the public in some substantial way.

01:16 - 57.245 For these reasons, the respectfully request this court affirm the PUC order.

01:16 - 59.247 Thank you very much.

01:16 - 01.450 Council, you have two minutes rebuttal,

01:17 - 04.152 your honor, I did at the beginning

01:17 - 07.189 of my argument reserve three minutes and the clock actually reflected it.

01:17 - 10.225 Okay. Thank you, Your Honor.

01:17 - 13.595 I want to start by addressing President Judge Cohn Jubilee's question

01:17 - 14.696 about whether the commission's

01:17 - 18.100 finding that Brentwood met compliance standards defeats my argument.

01:17 - 22.471 No, it actually supports my argument, your honor, occasional compliance

01:17 - 25.774 with environmental orders that are saying your system is out of compliance

01:17 - 30.779 not only shows that you are chronically in violation of environmental regulations,

01:17 - 34.049 but it further shows that the the system itself

01:17 - 38.286 isn't actually coming into compliance with federal and state standards.

01:17 - 40.989 All it says is you are doing the absolute bare minimum

01:17 - 44.326 to meet the compliance requirements we have put on you.

01:17 - 45.727 So why Brentwood?

01:17 - 49.097 Why was Brentwood the choice for the acquisition?

01:17 - 49.698 Do you know

01:17 - 51.767 out of other

01:17 - 54.603 places that could have been involved, like why?

01:17 - 55.370 Why Brentwood?

01:17 - 58.907 It doesn't serve that many, customers, right?

01:17 - 01.309 Certainly. So Brentwood wanted this.

01:18 - 04.713 Brentwood reached out and sent out RFP to numerous entities,

01:18 - 06.948 including Pennsylvania, American Water and actually,

01:18 - 08.750 Your Honor, your question actually brings up

01:18 - 10.886 the regionalization and consolidation problem

01:18 - 14.156 that was discussed, by my friends on the other side.

01:18 - 18.694 And I think Alka San received an RFP for this system.

01:18 - 20.362 And they said, we don't want anything to do with it

01:18 - 23.865 because it's going to require a lot of time and effort all over it.

01:18 - 25.500 That's their business. That's how they make money.

01:18 - 26.702 That's what they want to do.

01:18 - 27.936 So that by itself

01:18 - 31.273 shows that the regionalization and consolidation issue is actually almost

01:18 - 34.276 a little bit of a red herring, because Augustine doesn't want the system.

01:18 - 37.279 And I want to return to the question about rates.

01:18 - 38.880 Aren't rates going to go up?

01:18 - 41.216 Yes, unequivocally yes.

01:18 - 43.185 We are here because rates haven't gone up.

01:18 - 47.622 That's in the legislative, testimony that was about section 1329.

01:18 - 49.458 And, Your honor, this is not in the record, but we know

01:18 - 53.061 Brentwood has increased its rates because it has to to fix its system.

01:18 - 56.064 It doesn't have the financial wherewithal to do it.

01:18 - 58.934 And, earlier, judge McCullough, you asked

01:18 - 02.604 if the commission finds it's not necessary, then what do we do then?

01:19 - 06.108 The then will want it is necessary based on the actual evidence

01:19 - 09.911 and not the the speculation and legal opinion that was offered.

01:19 - 13.048 But in a theoretical situation where where a system is

01:19 - 16.618 the transaction is not necessary, then we have to evaluate whether it's proper

01:19 - 20.689 and whether it's proper means is it suitable for the specific purpose

01:19 - 21.957 or requirement.

01:19 - 25.460 And here we know that the purpose is to advance or to,

01:19 - 29.531 help the convenience, accommodation, safety and service of the public.

01:19 - 32.067 This transaction unequivocally does.

01:19 - 36.138 We know that Brentwood is going to get service from p

01:19 - 40.108 c that's going to be 24 hours, 365, seven days a week.

01:19 - 42.177 They can call them instead of calling the police and saying,

01:19 - 45.180 hey, can you please come check out this problem that we're having

01:19 - 48.717 and this block come in, or just just one hypothetical question.

01:19 - 52.020 If we were to affirm, what's Brentwood the next move,

01:19 - 54.089 if you

01:19 - 58.293 just yes, it is the noncompliance. Yes.

01:19 - 59.628 Continue to be a noncompliance

01:19 - 02.864 and continue to have what we saw in November of 2022, where sewage

01:20 - 06.234 backed up on the back of people's houses, and they had to live with that, not for 1

01:20 - 10.372 to 3 whole days during a holiday, because nobody could come out to fix it.

01:20 - 13.875 And you're you're most practical argument for all of this is

01:20 - 17.345 if rates are going to go up,

01:20 - 21.016 at least Brentwood gets $19 million to address

01:20 - 24.452 whatever it is that Brentwood wants to spend the money on.

01:20 - 28.757 That and the the experts coming in and fixing the systems,

01:20 - 30.559 being there for convenience.

01:20 - 32.060 There are a host of reasons.

01:20 - 35.664 The $19 million is obviously not a small one, but yes, Your Honor.

01:20 - 38.066 And with that, Your Honor,

01:20 - 40.702 we would ask that you reverse the commission's decision.

01:20 - 41.536 Thank you. Okay.

01:20 - 42.504 Thank you very much.

01:20 - 45.507 Good job. Those sides. Thank you.

01:20 - 47.442 Oh, you want your two minutes? That's right.

01:20 - 49.444 You got lost on your TV.

01:20 - 50.445 I was just wondering.

01:20 - 52.747 Well, you never said anything when I said that.

01:20 - 55.884 You didn't ask for rebuttal time, and then you directed us now, so.

01:20 - 57.319 Yeah. Go ahead. Two minutes. Good. Yeah.

01:20 - 59.120 No. He did, I know that.

01:20 - 59.754 So did she.

01:20 - 01.823 She asked for three minutes of that.

01:21 - 04.092 And now your time is up.

01:21 - 05.760 No. Go ahead.

01:21 - 08.763 I mean, just go ahead.

01:21 - 09.798 Thank you.

01:21 - 14.102 I'll be very brief in bullet point fashion with regards to environmental issues,

01:21 - 17.639 I encourage you to review the commission's decision in the Butler

01:21 - 21.476 compared to Brentwood, it was the same situation where Butler

01:21 - 25.580 was, in theory, complying with the the requirements.

01:21 - 27.315 But the commission said

01:21 - 29.551 he could do it better.

01:21 - 32.821 Brentwood, they said Brentwood complying, but we don't care.

01:21 - 35.023 So he could do better.

01:21 - 39.160 Judge Covi, with regard to your question regarding the agreements

01:21 - 42.864 with municipalities, they were absolutely in the record.

01:21 - 45.967 We had to file for approval under 507 of the public

01:21 - 49.337 utility code for those agreements, including the Z agreements.

01:21 - 54.075 And we in fact, worked out a cooperation agreement between Alcoa's and Brentwood

01:21 - 57.679 and Pennsylvania American Water to sort all that out.

01:21 - 01.516 So work going forward and serve as a model for the over 80

01:22 - 05.654 some plus municipalities that are served by Ackerson as well.

01:22 - 09.591 And as a side note, there are 80 some other municipalities

01:22 - 12.527 in the same footprint that if this doesn't work out

01:22 - 15.297 and the commission says this is too complicated,

01:22 - 19.234 those municipalities, many of whom also have troubles, are flat out of luck.

01:22 - 23.772 They will not be able to get the relief that the legislature intended for them

01:22 - 28.743 through section 1329, with regard to the interim reasonable trunk lines.

01:22 - 29.611 Yes.

01:22 - 33.515 The commission said it was a moot issue, but this is again an inconsistency

01:22 - 34.783 in the Commission's order.

01:22 - 37.752 The commission both adopted the ALJ, recommended a decision

01:22 - 40.922 which specifically addressed the to trunk address, the trunk line issue,

01:22 - 43.758 but then, in the commission's order, said it's a moot issue.

01:22 - 45.060 So that's an inconsistency.

01:22 - 48.163 And again, this case is about certainty and consistency.

01:22 - 52.500 Parties need consistency, particularly highly regulated parties.

01:22 - 58.807 The the issue about collection system only I would note

01:22 - 02.510 on that issue, the PUC made a big issue that OCA did as well.

01:23 - 06.414 This is a collection system only the PUC has approved six

01:23 - 10.418 other collection, only 1329 transactions,

01:23 - 14.923 and it works because of those agreements and cooperation agreements.

01:23 - 19.127 And I see that I'm just about out of time, your honor.

01:23 - 22.630 Again, this is about certainty and consistency

01:23 - 24.265 in this.

01:23 - 27.268 And in order to achieve the legislature's intent

01:23 - 31.306 at 1329, to award relief to these municipalities and much needed,

01:23 - 35.543 the PUC has to provide certainty and consistency.

01:23 - 36.811 It did not do it here.

01:23 - 39.047 We asked for reversal and approval.

01:23 - 43.685 And the reason for approval is you, the judges can look at

01:23 - 47.622 this compared to other cases, the facts of this case are comparable

01:23 - 49.157 to other

01:23 - 53.094 cases or the facts of other cases that the PUC approved

01:23 - 56.831 are actually less favorable than the facts we presented here in Brentwood.

01:23 - 01.336 And the courts should feel comfortable in reversing and approving the transaction.

01:24 - 03.738 Thank you very much for your time count, Council.

01:24 - 05.907 Before we sit down, one point of clarification.

01:24 - 08.910 Those six other transactions are they in the record?

01:24 - 12.614 They are in the record under the utility valuation expert's

01:24 - 15.950 evaluation, where he looked at prior 1329

01:24 - 19.020 to come up with his appraisal and he noted which were the collection only.

01:24 - 21.556 Okay. And if you would like I can read those you.

01:24 - 22.323 No, that's fine.

01:24 - 24.592 I can find it. I have it here. Okay. Thank you.

01:24 - 26.861 All right. Thank you. Now you all do a good job.

01:24 - 27.829 Thank you. Both sides.

01:24 - 30.098 And y'all got your time. Okay.

01:24 - 32.534 Number 83 is the next case.

01:24 - 35.904 Southside Area School District at all versus Pennsylvania

01:24 - 37.472 human relations Commission.

01:24 - 42.310 And 40 minutes has been allotted to this case 20 minutes side.

01:24 - 46.281 In our

01:24 - 50.585 next case, petitioners, the South Side Area School District parents, students,

01:24 - 53.988 taxpayers and school board members filed a petition for review

01:24 - 56.357 in this court's original jurisdiction

01:24 - 58.927 challenging the Pennsylvania Human Relations Commission's

01:24 - 02.764 authority to promulgate certain regulations regarding what constitutes

01:25 - 06.267 discrimination based on sex, race, and religious creed.

01:25 - 09.003 Under the Pennsylvania Human Relations Act

01:25 - 12.006 and the Pennsylvania Fair Educational Opportunities Act.

01:25 - 15.710 Both parties found cross applications for summer relief,

01:25 - 19.013 and the commission also filed preliminary objections.

01:25 - 22.150 The commission argues that petitioners lacked

01:25 - 25.653 standing to bring their claims, because they have provided no evidence

01:25 - 30.458 that the regulations have any significance or direct adverse effect on them.

01:25 - 34.496 Further, the Commission maintains that the regulations violate

01:25 - 38.933 neither the non delegation doctrine, which applies to legislative delegations

01:25 - 43.071 of authority and statute, nor the Pennsylvania Equal Rights Amendment,

01:25 - 46.808 which applies to laws that impose sex based distinctions.

01:25 - 51.146 The petitioners maintained that they have do have standing

01:25 - 55.283 and that the Commission violated the non delegation doctrine when it adopted

01:25 - 59.687 and implemented the regulations which redefined the term sex as used

01:25 - 03.391 in the Human Relations Act and the Fair Educational Opportunities Act.

01:26 - 08.096 The petitioners argue that the decision to change the definition of sex is exactly

01:26 - 12.500 the type of basic public policy choice that must be made by the legislature,

01:26 - 15.703 but that here the legislature made no such choice.

01:26 - 19.707 Instead, the significant and fundamental public policy change

01:26 - 21.709 was made by the Commission.

01:26 - 24.712 With that, let's hear what the parties have to say.

01:26 - 29.684 Good morning, Your Honor.

01:26 - 31.052 And may it please the court.

01:26 - 32.287 My name is Amy Thompson,

01:26 - 35.290 and I represent the Human Relations Commission in this matter.

01:26 - 39.227 I would like to reserve five of my 20 minutes for rebuttal.

01:26 - 40.094 You have,

01:26 - 42.297 Your Honor.

01:26 - 45.567 Petitioners have brought a facial constitutional challenge

01:26 - 48.937 to regulations promulgated by the commission

01:26 - 52.340 that give meaning to religious creed, discrimination, race

01:26 - 55.643 discrimination, and sex discrimination under the

01:26 - 58.813 and the PFOA.

01:26 - 01.816 As a result, petitioners bear the burden

01:27 - 04.886 to show that there are no circumstances

01:27 - 07.889 under which any of these regulations could be valid.

01:27 - 11.025 Petitioners have not met that burden.

01:27 - 13.761 Indeed, they have not attempted to do so.

01:27 - 17.465 For example, petitioners do not challenge the regulations, definitions

01:27 - 21.135 of religious creed, discrimination, or race discrimination,

01:27 - 25.974 nor do they challenge that the regulations define sex discrimination

01:27 - 30.778 to include pregnancy or sex assigned at birth or intersex.

01:27 - 32.780 Characteristics.

01:27 - 37.385 Nor do they challenge the regulations prohibition on sex discrimination

01:27 - 42.190 in housing or employment by, for example, prohibiting an employer

01:27 - 47.228 from firing an employee solely because she is gay or transgender.

01:27 - 51.366 For that reason alone, this petition should fail.

01:27 - 54.269 In addition,

01:27 - 58.039 petitioners bring a non delegation challenge to regulations.

01:27 - 02.710 We don't get to any of this unless they have standing right?

01:28 - 03.845 Correct, your honor.

01:28 - 09.550 Can you talk about that first because, we don't get to anything else

01:28 - 13.021 unless they have standing absolute, your honor.

01:28 - 17.158 And the Commission has disputed that any of the petitioners here have standing.

01:28 - 21.162 I'm going to start with, I think the petitioners that the court

01:28 - 24.699 look most favorably on is potentially having standing,

01:28 - 28.036 which are the two area school districts that are subject to the,

01:28 - 31.539 we don't dispute that fact.

01:28 - 34.642 The issue, however, is that in the allegations

01:28 - 39.047 and the arguments and the facts put forward in the petition for review

01:28 - 42.183 and in the application for summary relief,

01:28 - 46.354 the petitioners have not made any of the allegations

01:28 - 51.292 that are necessary to satisfy the standard of pre enforcement review.

01:28 - 55.129 Indeed, there has been no enforcement of these regulations

01:28 - 58.132 against either of these school districts.

01:28 - 00.768 For example, who would have standing

01:29 - 05.006 who would be impacted by these regulations if not the petitioners?

01:29 - 07.842 The petitioners are subject to the regulations.

01:29 - 08.710 Your Honor.

01:29 - 11.479 But under doctrine of law,

01:29 - 15.049 somebody's subject to a regulation doesn't have standing to bring a challenge

01:29 - 19.754 unless they have suffered an actual substantial and direct

01:29 - 25.593 and immediate harm or are satisfied the standard of pre enforcement review.

01:29 - 30.198 So, for example, somebody who's been accused of violating the regulations

01:29 - 34.335 they would have standing because they're being subjected to the regulations

01:29 - 38.039 and they're facing a due process in which they could raise,

01:29 - 43.044 the same kinds of complaints that,

01:29 - 46.581 the petitioners are is that sufficiently stated?

01:29 - 47.648 Sure.

01:29 - 50.852 Or even if you go back to a horizontal call,

01:29 - 54.489 if there was an ongoing uncertainty in the day to day business operations,

01:29 - 57.725 petitioners have not made those allegations.

01:29 - 01.696 For example, these regulations went into effect in August 2023.

01:30 - 04.966 There are two athletic school policies

01:30 - 07.935 that petitioners attached to their application.

01:30 - 12.673 Those were enacted in February and August 2024, respectively.

01:30 - 15.977 So there's not been there is no evidence,

01:30 - 18.980 clearly, of ongoing uncertainty in day to day operations.

01:30 - 21.149 There's also no immediate harm.

01:30 - 23.551 There's no unpalatable choice here.

01:30 - 28.022 There's no implication of an underlying constitutional or statutory right.

01:30 - 33.928 There's no mandate to engage or not engage in any specific conduct.

01:30 - 38.466 All these regulations do is clarify that discrimination

01:30 - 43.171 because of sex encompasses five categories of characteristics.

01:30 - 46.674 It does not mandate that the school district adopt

01:30 - 49.610 or not adopt any specific policy.

01:30 - 52.613 And that is because when complaints come before the commission,

01:30 - 55.049 they're adjudicated on a case by case basis.

01:30 - 57.418 The commission does not issue advisory opinions.

01:30 - 00.421 But do you deny that these regulations

01:31 - 03.424 are contrary to the public school code?

01:31 - 05.960 I, I do dispute that, Your Honor.

01:31 - 10.031 There is no conflict between the public school code and these regulations.

01:31 - 13.801 The public school, the regulations do not prohibit,

01:31 - 17.038 per se, sex segregated spaces.

01:31 - 20.975 The portions of the public school code that petitioners have cited discuss

01:31 - 21.943 the obligation

01:31 - 25.913 to provide male and female restrooms and male and female sports teams.

01:31 - 29.951 That is not in violation of the regulations at all.

01:31 - 33.521 And even if there was a conflict with the public school code,

01:31 - 37.458 that is not a cognizable argument for a non delegation

01:31 - 41.596 doctrine claim, which is where petitioners have raised that argument.

01:31 - 45.633 I don't know how it's not going to be in conflict.

01:31 - 50.071 So the it is not a violation.

01:31 - 55.042 It is not a form of sex to discrimination, to have gender bathrooms.

01:31 - 59.413 That is the that is, there's the absence of a conflict.

01:31 - 04.619 Because I read the regulations at now you're going to have to provide bathrooms

01:32 - 09.624 to everyone that's defined under sex, various different types of sex.

01:32 - 13.728 So what the regulations say with regards to sex discrimination

01:32 - 18.833 is that in and ask for public schools, which I'm assuming is what you're speaking

01:32 - 22.003 to that in providing a public accommodation.

01:32 - 26.507 The public school cannot discriminate against a student

01:32 - 29.477 based on one of these five characteristics,

01:32 - 33.080 which includes sex assigned at birth, gender, sexual orientation

01:32 - 38.085 that does not mandate that the school changed how its bathrooms are provided.

01:32 - 40.021 Because

01:32 - 43.858 this is a facial challenge, petitioners bear the burden of showing

01:32 - 47.261 that the regulations are invalid in all circumstances.

01:32 - 51.766 So even if Your Honor were to to disagree and find that there was a conflict

01:32 - 54.769 with regards to bathrooms and that the regulations did

01:32 - 58.806 in the in Supreme Court recently in Allegheny

01:32 - 01.842 Reproductive Health Services, didn't they say that,

01:33 - 05.913 Discrimination in public funding

01:33 - 09.617 is based on differences as prohibited by article one, section 28

01:33 - 13.721 of the Pennsylvania Constitution, which just says male and female.

01:33 - 16.724 So it seems here

01:33 - 20.394 that we need to see where you have where Park has the authority

01:33 - 25.066 that's been given to it to express a policy change.

01:33 - 28.703 As far as, the definitional standards go.

01:33 - 32.607 Where do we derive that authority?

01:33 - 33.541 Sure.

01:33 - 36.978 So first, addressing Your Honor's point about Allegheny reproductive.

01:33 - 40.448 The Equal Rights Amendment does not use the words male or female.

01:33 - 43.818 It prohibits the denial of rights based on sex of the individual.

01:33 - 47.021 And the holding of the Supreme Court in Allegheny

01:33 - 50.358 is that the Equal Rights Amendment extend to discrimination

01:33 - 53.995 based on a characteristic unique to a person's sex,

01:33 - 59.834 in that case, pregnancy, and in this way, the regulations are entirely in accord

01:33 - 04.939 with Allegheny, because the regulations clarify that discrimination because of sex

01:34 - 09.310 under the A and PFOA also include pregnancy.

01:34 - 11.779 Well, where did the definitions come from

01:34 - 13.547 if they don't come from the General Assembly

01:34 - 15.383 and we don't

01:34 - 18.386 have any guidance from the General Assembly.

01:34 - 19.687 Where are they?

01:34 - 20.921 Where do they come from?

01:34 - 23.924 Well, you regulation article or what?

01:34 - 26.427 The regulations were developed by the Commission

01:34 - 30.097 pursuant to their well-established legislative rulemaking authority.

01:34 - 32.900 Now, where did they get the definitions?

01:34 - 35.336 I'm just saying where did the definitions come from?

01:34 - 38.339 Because the General Assembly hasn't.

01:34 - 40.541 Their public policy

01:34 - 44.979 seem to apply to the two characteristics of sexes.

01:34 - 49.283 So we just need to find out where your definitions came from.

01:34 - 51.986 They did come from the General Assembly.

01:34 - 53.788 So where did they come from?

01:34 - 54.055 Sure.

01:34 - 57.058 I know who made them a commission, but where did they get their.

01:34 - 59.860 So I believe that this this may be conflating

01:34 - 04.298 two distinct doctrines, which is what petitioners have done as well.

01:35 - 08.169 The non delegation doctrine is a check on the legislative power.

01:35 - 10.538 It is a check on the legislatures authority

01:35 - 13.841 to delegate its legislative power to an agency.

01:35 - 17.978 And so in adjudicating a non delegation challenge, which is the claim

01:35 - 21.182 that petitioners have brought here, the court looks to determine

01:35 - 24.585 whether the legislature has made the basic policy choices

01:35 - 28.255 and imposed limitations on gender.

01:35 - 32.893 I was just going to ask you, is the decision of Justice Gorsuch

01:35 - 36.530 and Bostock dispositive of the question that's before us today?

01:35 - 40.434 It is not dispositive, but I put forward that it is persuasive.

01:35 - 45.206 Pennsylvania law is not beholden to fall in lockstep with federal law

01:35 - 48.809 by statute involved in interpretation of title seven

01:35 - 52.713 and the, prohibition on discrimination of sex in employment.

01:35 - 55.649 The Pennsylvania courts

01:35 - 59.153 often look to federal law as persuasive authority,

01:35 - 02.223 but there's no obligation to follow

01:36 - 05.159 federal law when interpreting state law.

01:36 - 09.029 But I would put forward that Justice Gorsuch analysis showing

01:36 - 14.435 that it is impossible to discriminate against a transgender or gay person,

01:36 - 18.272 based on their transgender status or sexual orientation,

01:36 - 20.407 without discriminating against that person

01:36 - 24.211 because of sex is persuasive to what the commission concluded.

01:36 - 27.314 But I mean, even without even getting into the merits,

01:36 - 30.885 I don't think Bostock dealt with whether the NRC

01:36 - 33.888 has authority to change the meaning of the term

01:36 - 37.758 used in the Constitution and by the General Assembly.

01:36 - 41.929 I'm just asking, what where is the authority for the SC

01:36 - 45.399 to change the term, to come up with a definition?

01:36 - 49.470 If a public policy statement hasn't been passed by the General Assembly.

01:36 - 51.071 So you can just address that.

01:36 - 54.742 Yes, Your Honor, so that type of analysis would be conducted under tire jockey,

01:36 - 58.879 which is not a claim that petitioners have under what, tire jockey

01:36 - 03.951 or under the tire jockey test to determine whether a regulation falls

01:37 - 08.055 within an agency's legislative or legislative rulemaking authority

01:37 - 11.859 was adopted pursuant to the proper procedure and is reasonable.

01:37 - 15.696 I will note the petitioners have not brought a tire jockey claim here.

01:37 - 18.799 Nonetheless, I'm happy to go through the factors.

01:37 - 23.938 I'm just I'm not asking to get into the your definitions.

01:37 - 26.841 I'm. I don't think we're getting into the merits that we need to.

01:37 - 29.543 I'm just trying to figure out where is your authority

01:37 - 33.280 to come up with a definition that is different from the Constitution,

01:37 - 36.550 different from the General Assembly's, legislation,

01:37 - 40.287 and without any public policy statement by the General Assembly.

01:37 - 44.158 So I would dispute, Your Honor, that this definition is different

01:37 - 46.660 than what's in in the. Okay, but where do you get the authority?

01:37 - 48.762 Can you just ask answer that question? Yes.

01:37 - 50.397 So indeed,

01:37 - 53.901 the General Assembly gave the commission a broad grant of legislative

01:37 - 58.339 rulemaking authority to adopt, promulgate, amend and rescind rules and regulations

01:37 - 02.276 to effectuate the policies and provisions of the Fra.

01:38 - 05.379 It also instructed the Commission to formulate

01:38 - 08.382 policies to effectuate the purposes of that act.

01:38 - 12.486 That broad grant of legislative rulemaking authority was upheld

01:38 - 17.258 against the Non Delegation Challenge in 1967 by our Supreme Court,

01:38 - 22.196 and has been upheld to allow the Commission to supply definition

01:38 - 27.668 to the Human Race Relations Act that the General Assembly did not itself offer.

01:38 - 33.440 I think you had cited two case Uniontown for basis of of being able to do this.

01:38 - 36.977 Yes, Your Honor, but in Uniontown, the court was looking at

01:38 - 40.948 not whether the parties changed

01:38 - 44.251 the classification itself, which was race in that case.

01:38 - 50.124 It was it was, setting parameters on how not to discriminate.

01:38 - 53.127 It did not change the classification definition.

01:38 - 55.796 It didn't even attempt to do that.

01:38 - 58.399 This is a totally different situation, is it not,

01:38 - 01.535 where you are attempting to change the definition,

01:39 - 05.873 contrary to the constitution of the General Assembly and,

01:39 - 09.710 not the parameters, but the definition

01:39 - 12.713 itself, the classification?

01:39 - 13.881 I would disagree, Your Honor.

01:39 - 16.817 I think Uniontown is actually quite instructive here.

01:39 - 21.956 That case involved, the Commission having adopted a definition of de facto

01:39 - 26.727 segregation, that several public school districts challenged on appeal,

01:39 - 31.598 the Pennsylvania Supreme Court canvased federal, state, or federal case law.

01:39 - 35.869 Case law from other states, as well as prominent authorities

01:39 - 38.839 on the matter, and concluded that the Commission's definition

01:39 - 42.643 of de facto says segregation actually had no basis

01:39 - 46.013 in any of those places, and therefore could not have been intended

01:39 - 49.249 to have been adopted by the General Assembly.

01:39 - 53.120 Yet the Supreme Court went on to uphold the definition

01:39 - 57.124 as a proper exercise of the Commission's rulemaking authority.

01:39 - 58.759 I have one other question to ask you.

01:39 - 59.626 I don't know if any was

01:39 - 02.863 this is the school district, and this goes back to one of the other issues,

01:40 - 04.698 for standing.

01:40 - 08.202 Aren't they being put in jeopardy of losing federal funding,

01:40 - 11.805 number one, and being in direct violation of the school code?

01:40 - 15.109 Number two, because they're required in sports

01:40 - 20.047 and the provisions of bathrooms to have two kinds male, female

01:40 - 21.982 that that this is

01:40 - 26.820 what I understand them to be concerned about and objecting to what position does

01:40 - 30.491 that put them in as far as their funding and compliance with the code itself?

01:40 - 33.961 So on the second question, again, there is no conflict

01:40 - 35.996 between the regulations and the school code.

01:40 - 38.999 The regulations do not prohibit sex segregated

01:40 - 42.169 bathrooms or sex segregated sports teams.

01:40 - 45.773 As to a potential lawsuit, says two it is male and female.

01:40 - 46.740 Correct.

01:40 - 49.543 Where in the code and in the federal funding race

01:40 - 52.746 and the regulations prohibit discrimination because of sex.

01:40 - 55.549 A different definition than male and female, though.

01:40 - 56.050 That's the

01:40 - 00.421 that's the without getting into the merits is we don't have to do that today.

01:41 - 03.190 The question is whether you have the authority to do that.

01:41 - 04.691 And what does it do to the court.

01:41 - 06.660 But I'll let you wrap up and then I do.

01:41 - 08.896 You do have, five minutes rebuttal.

01:41 - 12.132 So I do believe the merits are presented before this court as well.

01:41 - 13.100 Where to reach them though?

01:41 - 17.971 I agree with Judge Wolff that the court must first address the, standing issues.

01:41 - 21.708 As to the question about a potential loss of federal funding.

01:41 - 24.244 Federal law has not changed.

01:41 - 28.415 I understand and appreciate that the current federal administration

01:41 - 32.853 has taken a different view on title nine, but their policy position

01:41 - 37.124 and title nine has not changed federal anti-discrimination law.

01:41 - 40.527 And unless and until that changes, there is not a conflict.

01:41 - 44.131 And even if there is a change in federal anti-discrimination law,

01:41 - 47.267 that would not preempt our state law

01:41 - 50.370 unless there is an actual conflict under the Supremacy Clause.

01:41 - 53.774 With that, I will reserve the rest of my time for you.

01:41 - 55.976 Had you do have rebuttal. Thank you. Council.

01:42 - 05.285 Please.

01:42 - 07.955 The court.

01:42 - 08.755 Your honor.

01:42 - 11.291 I am Thomas W King, the third of the law firm.

01:42 - 14.294 Dillon, McCandless, King, Colter and Graham.

01:42 - 19.433 With me is my partner, Thomas Brett, of the same firm.

01:42 - 24.471 And, we serve as the solicitor for both of the school districts in this case.

01:42 - 29.309 And we're honored that Ross to represent the individuals, in this case as well.

01:42 - 33.080 We would request, Your Honor, if it's all right with the court,

01:42 - 36.016 to reserve three minutes of rebuttal.

01:42 - 38.652 And I would like to take five minutes and Mr.

01:42 - 40.787 Brett to take 12 minutes.

01:42 - 43.757 I'll try to address the preliminary objections first,

01:42 - 47.794 because I understood that to be the nature of the order that came out of the court.

01:42 - 52.933 And, I suspect that the preliminary objections will also roll into Mr.

01:42 - 56.703 Brett's part of this because he'll be arguing for for summary judgment

01:42 - 00.440 to sustain the position that we've taken with respect to this case.

01:43 - 02.576 I want to address first.

01:43 - 05.579 I can't think, judge. Mr. King.

01:43 - 06.747 Mr. King, over here.

01:43 - 08.782 I I'm sorry to interrupt you.

01:43 - 11.718 But when I read the brief

01:43 - 14.955 that was signed by three attorneys from your firm, I had a problem.

01:43 - 20.627 I, I read what I believe to be artificial intelligence.

01:43 - 22.095 Hallucinations.

01:43 - 24.898 Page 11 and 12.

01:43 - 28.569 The Arsenal case is quoted, with, to quote,

01:43 - 31.805 hardship of compliance and risk of enforcement.

01:43 - 35.509 And those quotes do not appear in the Arsenal case.

01:43 - 40.247 On page 12, the Pittsburgh Palisades case

01:43 - 44.384 is misquoted to say negatively effects in quotes.

01:43 - 45.686 That's not in the case.

01:43 - 49.556 It does say negatively impacted, but it gets more serious.

01:43 - 52.125 Page 22.

01:43 - 55.128 You quoted the Poppins use case,

01:43 - 58.498 to say invite prosecution in quotes.

01:43 - 02.636 And that phrase does not appear anywhere in the Papenfuse case.

01:44 - 08.675 On page 2526 of your brief, you have a quote attributed

01:44 - 14.348 to the Blackwell case, and that quote does not appear in the Blackwell case at all.

01:44 - 17.417 It does appear in a different case,

01:44 - 20.420 the Pratt's case protege.

01:44 - 22.756 Page 26.

01:44 - 26.026 You attributed another quote to the Blackwell case,

01:44 - 29.663 which does not appear in the case.

01:44 - 34.368 Again, the page 26 quote instead

01:44 - 39.439 appears in the Gilligan case, and even then it is misquoted.

01:44 - 43.143 At page 40, the Arsenal Cole case is again

01:44 - 46.213 quoted and the quoted language does not exist.

01:44 - 51.885 In that case, a variation exists, and it is most charitably a misquote.

01:44 - 56.056 At page 41, you quote the Pennsylvania Supreme Court

01:44 - 00.594 from the biotic case for a quote that does not exist.

01:45 - 02.362 In that case.

01:45 - 05.766 At page 41, you cite the Polsky case

01:45 - 09.436 for a proposition and a quote that does not exist.

01:45 - 14.341 And that case is not even on point to this case.

01:45 - 17.611 At page 42, you quote the price,

01:45 - 21.715 case with two quotes that do not exist.

01:45 - 25.686 Similar words are used, but the brief purported quote language

01:45 - 29.389 and the quoted language does not exist.

01:45 - 33.593 Further, on page 42, you quote the Germantown Cab

01:45 - 37.464 case with quotes that do not appear in the Germantown cab case.

01:45 - 41.702 On top of this, twice in your brief, you quote our court,

01:45 - 45.472 the Commonwealth Court, for propositions in cases

01:45 - 51.178 where the Pennsylvania Supreme Court subsequently ruled, to our cases.

01:45 - 52.646 That's

01:45 - 55.749 in the prophets case, in the Papenfuse case.

01:45 - 58.018 So that doesn't make any sense to me.

01:45 - 01.688 So, you know, my question is, who wrote the brief?

01:46 - 04.691 I know you signed it and your colleagues

01:46 - 07.694 signed it, but who wrote it?

01:46 - 10.397 And does it contain

01:46 - 13.600 AI, artificial intelligence, hallucinations?

01:46 - 16.403 I have to say that to answer your question.

01:46 - 18.405 First of all, I would apologize

01:46 - 22.175 for any artificial intelligence that might be contained in this brief.

01:46 - 24.311 Would never be our intention to do so.

01:46 - 25.679 And our firm takes.

01:46 - 31.351 I would like to say that we pride ourselves in being aware

01:46 - 34.888 of this issue and not including such things in our briefs.

01:46 - 40.060 And so I apologize to the court to the extent that any of that's included, Mr.

01:46 - 43.130 Breath, and I, take responsibility for this.

01:46 - 45.065 Who wrote the brief?

01:46 - 47.567 Mr. breath wrote most of this brief.

01:46 - 49.903 Okay. I wrote some of it.

01:46 - 50.470 All of it.

01:46 - 53.907 All the, all of what I spoke

01:46 - 57.644 about has to do with, standing.

01:46 - 02.916 So if if I'm correct, which I got to tell you,

01:47 - 06.787 I spent a lot of time on this, and I had a lot of people double check

01:47 - 12.025 what I thought so that I would not come in here and say things that were not true.

01:47 - 15.095 So at this point, I feel very confident

01:47 - 18.098 about what I've said, on the record.

01:47 - 22.502 So have I have a problem with standing in this case?

01:47 - 27.841 Where I think that your client's position

01:47 - 33.079 has not been asserted in a non frivolous

01:47 - 37.117 brief.

01:47 - 40.620 Well,

01:47 - 41.788 do you want me to continue

01:47 - 45.125 to address the AI issue, or shall I address standing in general?

01:47 - 47.928 I'm. I'm unhappy.

01:47 - 50.897 I feel as though,

01:47 - 55.302 you've put the court at a disadvantage, if that's all you have to say about it.

01:47 - 58.138 You know, that's up to you.

01:47 - 58.805 Well, perhaps

01:47 - 01.842 the other counsel could answer that because he said he wrote the brief

01:48 - 06.346 so you could proceed with the standing issue and address your marriage,

01:48 - 08.849 because your whole time was taken up by the reading of the question.

01:48 - 13.587 So you can that I can only tell you how sincere my apology is

01:48 - 16.790 with respect to including anything that's artificial intelligence.

01:48 - 21.261 We have to let your counsel address that since he said he wrote it.

01:48 - 24.264 And, yeah, I'm sorry, I do have.

01:48 - 27.834 May I ask for a short recess for us,

01:48 - 30.537 madam Presiding judge.

01:48 - 31.171 I'm.

01:48 - 35.509 I really am uncomfortable at this point without conferring with.

01:48 - 38.545 Yeah, okay, let's take a

01:48 - 40.213 ten minute recess.

01:48 - 42.649 The court will take a ten minute break. Thank you.

01:48 - 44.117 Okay. Now recess.

01:48 - 47.120 Thank you.

01:48 - 52.792 Will now resume.

01:48 - 55.795 Please be seated.

01:49 - 07.908 Yeah.

01:49 - 09.075 That's okay.

01:49 - 11.011 Counsel, thank you very much.

01:49 - 12.746 We're going to let Mr. King finish.

01:49 - 15.749 The court will make a short statement, then you'll be given your chance.

01:49 - 18.952 You okay?

01:49 - 22.856 So, yes, the court will take the I issue.

01:49 - 25.225 I issue under advisement.

01:49 - 29.396 So you do not have to, address it right now.

01:49 - 33.967 You may, if you so choose, but, the parties may hear from the court later,

01:49 - 38.572 so you may proceed with your argument on the merits at this time,

01:49 - 41.641 if I might just briefly address the I issue,

01:49 - 44.811 we have suggested to counsel that,

01:49 - 48.148 first of all, we have apologize to counsel for this as well.

01:49 - 53.420 But we would suggest, the ability to, to reform this brief

01:49 - 58.291 and extract those, objectionable sections and anything else that may be in there.

01:49 - 59.559 That was his counsel.

01:49 - 03.396 If you would like to file a motion after the hearing, the court,

01:50 - 05.498 you know, or an application, the court entertain it.

01:50 - 07.467 But I don't think the courts are in a position to

01:50 - 10.170 rule on that at this point.

01:50 - 11.838 Thank you, Your Honor. Okay, that'll be fun.

01:50 - 13.740 All right.

01:50 - 16.977 On onto the issue that Judge Wolff had raised, previously,

01:50 - 21.147 with respect to standing, we believe there is standing in this case.

01:50 - 24.818 And, the standing issue, of course, requires there's

01:50 - 28.755 a three part test to look at what the issues are with respect to any of the,

01:50 - 32.659 any of the petitioners in this case, especially.

01:50 - 36.429 And I think the, the, the standing issue should focus initially,

01:50 - 38.231 at least on the school districts

01:50 - 40.900 where the solicitor for both of these school districts,

01:50 - 43.803 both of these school districts have and our papers

01:50 - 47.507 include the policies that these districts have adopted.

01:50 - 50.543 Those policies, we suggest

01:50 - 54.814 are not in sync with the regulations.

01:50 - 58.785 That and the definitions that the Human Relations Commission has,

01:50 - 04.090 promulgated here and in specific, what we've what we would suggest

01:51 - 08.862 is that in those policies that these two school districts have undertaken,

01:51 - 14.834 there is a separation of male and female, both in, in the sense of bathrooms

01:51 - 19.839 and locker rooms and sports teams, which would seem to be at least

01:51 - 23.176 inconsistent with, the definitions

01:51 - 26.613 that 41.206 of sex discrimination.

01:51 - 31.818 We suggest that, standing is appropriate because the school districts are,

01:51 - 36.856 in fact affected by the, the actions that will be taken

01:51 - 41.194 and have been taken by the human, or are they adversely affected?

01:51 - 43.997 I'm sorry, are they adversely affected?

01:51 - 45.699 They are they will be adverse,

01:51 - 48.668 they are adversely affected, and they will be adversely affected

01:51 - 52.272 because the Human Relations Commission has enforcement provisions.

01:51 - 58.044 Exhibit H to our pleadings, contains a poster put out by the Human Relations

01:51 - 03.583 Commission looking for people to report school districts that are non-compliant

01:52 - 08.254 with respect to these very regulations and these school districts.

01:52 - 11.291 I suggest to you that we we we're telling you that

01:52 - 14.894 those regulations would seem to not be compliant

01:52 - 18.498 with those with these regulations, so they are adversely affected.

01:52 - 23.002 And of course, as, as, in the bill in effect,

01:52 - 27.540 because somebody may report them for not complying with the regulations.

01:52 - 28.241 Yes, sir.

01:52 - 31.478 But wouldn't the opportune time to contest,

01:52 - 34.147 the validity or

01:52 - 39.753 constitutionality of the regulations be in such a situation

01:52 - 44.691 where they are reported, where they have a due process, opportunity

01:52 - 48.928 to respond and contend that it's unconstitutional?

01:52 - 53.833 That would certainly be one way that that this issue could be addressed.

01:52 - 58.104 However, as we know, in the Pennsylvania builders case and in the other cases that

01:52 - 02.208 this court has, come down with recently, especially on the issue of standing,

01:53 - 05.645 it's not necessary to wait until someone is charged

01:53 - 10.784 with an offense or is found to be or is challenged by someone

01:53 - 15.655 like the Human Relations Commission, the pre enforcement applications

01:53 - 19.225 that this court has previously granted, I think are relevant here.

01:53 - 23.963 And so, before we're charged with something or someone files

01:53 - 27.834 a claim with respect to this, this is an appropriate means.

01:53 - 32.105 I think by filing a declaratory judgment action to address these issues,

01:53 - 37.410 specifically, and we suggest that the school districts

01:53 - 41.414 do have standing the school districts are directly affected by this.

01:53 - 44.751 And, of course, with respect to the standing of the others,

01:53 - 48.988 we have parents, we have school children, we have two state legislators.

01:53 - 52.659 But but we have contrary to the assertion of the respondent here,

01:53 - 55.762 we've not asserted, legislative immunity.

01:53 - 57.430 We it's only a state.

01:53 - 02.435 We've only identified the two of our, petitioners as members of the legislature

01:54 - 06.439 only only in passing their interests are in the in the case of Mr.

01:54 - 10.310 Bernstein, he has school aged children who attend the public schools

01:54 - 12.512 and are affected by these regulations.

01:54 - 14.547 One individual doesn't have school children.

01:54 - 15.615 Correct? Pardon?

01:54 - 17.917 One individual does not have school children.

01:54 - 20.787 Correct? Yes, ma'am. Yes. Well, how would he have standing?

01:54 - 23.623 She is, often in the public schools.

01:54 - 28.094 She is the representative who represents public school public in her district.

01:54 - 29.896 Represents schools.

01:54 - 32.832 And, and I would suggest also that

01:54 - 36.002 and respectfully so that if any of the, any,

01:54 - 40.473 any of the petitioners have standing, then the issue is that everyone has standing

01:54 - 44.010 because, we only need to get to any of these petitioners.

01:54 - 49.249 Having standing or standing arguments would be probably the least, among the,

01:54 - 52.452 bank, to be candid of the least among the petitioners.

01:54 - 55.755 But, I think it's quite clear in my mind, at least,

01:54 - 59.425 that the school districts absolutely have standing to bring this.

01:54 - 03.997 They are subject to the jurisdiction of the of the, of the Pennsylvania

01:55 - 05.765 Human Relations Commission.

01:55 - 09.502 And the case is cited by the Human Relations Commission in the

01:55 - 15.174 in their brief, both the Chester case and the Uniontown case were race cases,

01:55 - 18.978 but those cases, were brought by school districts.

01:55 - 23.283 Those cases were ultimately determined by the Pennsylvania Supreme Court,

01:55 - 26.653 and they did not change the definition of race.

01:55 - 30.290 They simply, dealt with the implementation

01:55 - 33.960 of the provisions that prevent racial discrimination.

01:55 - 40.433 In this case, as judge McCullough suggested, 41.2 of six

01:55 - 44.437 clearly, redefines sex.

01:55 - 49.309 It defines it as pregnancy, sex assigned at birth gender,

01:55 - 53.513 including gender identity, gender expression of factional sexual origin

01:55 - 56.582 or sexual orientation, heterosexual

01:55 - 02.055 homosexuality, bisexuality, asexuality, which is the lack of interest in sex,

01:56 - 05.291 differences of sex development, variations of sex

01:56 - 08.294 characteristics, or other intersex characteristics.

01:56 - 12.498 Those are not definitions that the legislature has ever approved.

01:56 - 13.800 As a matter of fact,

01:56 - 17.704 legislature in the legislature and the court can take judicial notice.

01:56 - 22.008 Numerous bills have been introduced and in various sessions

01:56 - 25.745 of the legislature, to try to define

01:56 - 29.048 this term, in that setting.

01:56 - 33.219 And no bill has ever and to my knowledge, no bill has ever left committee,

01:56 - 37.457 let alone been approved, so that the definition, the commission

01:56 - 43.229 redefining the term sex, it enforced this a certain way from 1955,

01:56 - 46.432 when the when the Pennsylvania Human Relations Commission Act was adopted

01:56 - 50.336 until 19 until 2023,

01:56 - 53.573 when when these regulations came down,

01:56 - 58.177 the definition of sex was interpreted to be male and female,

01:56 - 02.582 and all of these cases, including the U.S.

01:57 - 03.549 Supreme Court.

01:57 - 06.019 When was it defined to be male and female?

01:57 - 11.357 I in your brief, you cited the Allegheny reproductive case for that, proposition.

01:57 - 15.294 But isn't it a fact that under title

01:57 - 18.297 nine and title seven,

01:57 - 21.367 the word sex has different meanings

01:57 - 25.104 based on the context of the statutory framework?

01:57 - 27.340 Yes it can. There's nothing wrong with that.

01:57 - 28.107 It can, Your Honor.

01:57 - 31.844 But I wanted to point this out because the Human Relations Commission,

01:57 - 35.915 has, relied, a lot on this Clayton

01:57 - 38.618 County case that came out of the US Supreme Court.

01:57 - 43.489 Mr.. Justice Gorsuch had this to say at the end of the case because,

01:57 - 48.261 what he said was the employers worry that our decision will sweep beyond

01:57 - 52.832 title seven to other federal or state laws that prohibit sex discrimination.

01:57 - 57.637 And under title seven itself, they say sex segregated bathrooms,

01:57 - 02.208 locker rooms and dress codes will prove unsustainable after our decision today.

01:58 - 05.878 But none of these other laws are before us.

01:58 - 09.115 We have not had the benefit of adversarial testing

01:58 - 14.053 about the meaning of these terms, and we do not prejudge any such question

01:58 - 17.056 today under title seven, we do not purport

01:58 - 20.059 to address bathrooms, locker rooms or anything of the kind.

01:58 - 24.430 The only question before us is whether an employer who fires someone

01:58 - 29.435 simply for being homosexual or transgender has discharged or otherwise,

01:58 - 34.073 discriminated against that individual because of such individual sex.

01:58 - 38.611 And so, the, the reliance on that case is misplaced.

01:58 - 40.446 Trying to respond to your question.

01:58 - 44.183 But I think that the reliance on that case, you response mine.

01:58 - 47.487 I mean, my my basic question is that

01:58 - 52.058 depending on the statutory or constitutional,

01:58 - 55.695 because Allegheny reproductive is a constitutional.

01:58 - 59.165 Yes. Interpretation of the word sex, would you agree

01:58 - 02.168 that the word can have different meanings?

01:59 - 06.038 I having read the

01:59 - 11.177 the reproductive rights case, words, words can have different meanings.

01:59 - 16.115 But even in the, in the reproductive rights case, I believe that

01:59 - 19.452 it's quite clear that the distinctions are between male and female.

01:59 - 24.257 And so even in this circumstance where you have,

01:59 - 29.362 biological males playing on female, sports teams, for example,

01:59 - 33.799 an issue which we suggest is a safety issue, among other things.

01:59 - 39.105 And biological males in the locker rooms of, of, girls.

01:59 - 41.274 Is that in the record that that's happening

01:59 - 45.978 a has it happened in this circumstance?

01:59 - 50.149 No, but it's is it in of this case before us now?

01:59 - 53.586 Is it in the record that what you just described is happening?

01:59 - 56.889 No, I'm I'm I'm, it is not, but I'm addressing.

01:59 - 00.927 Okay, I'm addressing the possibilities of what could happen with respect to

02:00 - 04.664 these policies because our school district policies are quite clear

02:00 - 09.235 that the restrooms, the locker rooms and the sports teams are segregated

02:00 - 12.171 by boys and girls. Boys and girls are defined in the.

02:00 - 15.141 But doesn't that take the focus away from the regulatory

02:00 - 18.477 and statutory and constitutional analysis into.

02:00 - 20.313 This is my concern.

02:00 - 23.316 That is, speculation.

02:00 - 25.218 Well, I think that

02:00 - 29.222 I think that there's there's definitely a of course, a concern in that respect.

02:00 - 34.193 But, I think that the, the stat that the delegation issue

02:00 - 37.697 of whether or not the, the, the delegation issue is prime

02:00 - 41.701 and the, and the question of whether or not the legislature ever delegated

02:00 - 46.472 to the Human Relations Commission, the authority to redefine or define

02:00 - 50.343 the term sex is what's before the court and what we bring before the court.

02:00 - 53.312 That never happened. Okay. Thank you, Mr. King.

02:00 - 56.649 You have rebuttal time, and then we thank you, mister breath. No.

02:00 - 00.586 Thank you, Your Honor.

02:01 - 03.055 If, it may please the court.

02:01 - 05.358 Thomas breath. I do want to spend a moment.

02:01 - 07.226 In just a moment,

02:01 - 10.229 to address the I issue in particularly this brief.

02:01 - 12.231 This brief was Mr.

02:01 - 14.867 King is right that there's a collaborative process.

02:01 - 17.737 Traditionally, I am the one that kind of has the facts.

02:01 - 20.306 The final review and work with collaborators.

02:01 - 22.908 That was not the case in this brief.

02:01 - 25.911 I've looked at the time it was filed.

02:01 - 28.247 We have associates that work on it.

02:01 - 30.916 I work on it. Ultimately, it's our responsibility.

02:01 - 34.253 I don't want any way to try to make this seem that it isn't.

02:01 - 36.188 It's ultimately our responsibility.

02:01 - 38.424 This is incredibly embarrassing.

02:01 - 40.993 It is a very, very significant issue.

02:01 - 42.595 We take it that way.

02:01 - 47.466 We have argued non delegation in front of this court multiple, multiple times.

02:01 - 52.038 So with that I'll try to get to the issue of not.

02:01 - 54.140 And do you want rebuttal time?

02:01 - 54.707 I'm sorry. Mr.

02:01 - 57.977 King has reserved just three minutes for rebuttal time.

02:01 - 58.577 Thank you.

02:01 - 59.478 You're going to take the 12.

02:01 - 03.316 With respect, this is a challenge of, the regulations

02:02 - 06.319 that have been promulgated on and on delegation theory.

02:02 - 07.687 So there's two,

02:02 - 10.589 two theories.

02:02 - 13.659 Either the statute, the,

02:02 - 18.164 a either delegates the authority to them,

02:02 - 23.336 and it's our position, if that's the case, it's an it's a violation of the non

02:02 - 27.340 delegation Act or it doesn't delegate the authority to them.

02:02 - 30.476 Hence they don't have the authority to promulgate the regulation.

02:02 - 33.713 As, as we've talked about, it has been cited.

02:02 - 37.149 The non delegation authority is a two prong analysis.

02:02 - 40.720 One is was a basic public

02:02 - 43.723 policy determination made.

02:02 - 47.993 The PRC refers the court to.

02:02 - 49.729 And George McCall, I think you asked this question.

02:02 - 54.033 Where's the authority and the authority that they have cited is section.

02:02 - 55.935 I should put my glasses on.

02:02 - 59.438 957 d of the A

02:03 - 03.008 in section 5006

02:03 - 06.579 six of the p f e.

02:03 - 07.813 Okay.

02:03 - 13.185 In both of those sections, the language is, is almost identical.

02:03 - 17.022 And it talks about, facilitating,

02:03 - 20.526 the, the purpose of the act

02:03 - 25.164 to promulgate rules and regulations to facilitate the implementation of this.

02:03 - 29.101 So when you're looking at a non delegation analysis,

02:03 - 33.339 you have to ask the question of okay if there is a public policy,

02:03 - 37.576 basic public policy decision by the General Assembly, we would argue

02:03 - 41.380 that there isn't the in this case, the public policy determination was,

02:03 - 44.683 the issue of discrimination regarding sex.

02:03 - 48.187 And sex is defined within the Commonwealth of Pennsylvania,

02:03 - 50.489 whether it's statutory or constitutional.

02:03 - 53.793 Is there is there definition of the word sex?

02:03 - 57.630 A liberal definition, in your opinion?

02:04 - 03.269 And I don't mean I'm not sure what you mean by a liberal.

02:04 - 04.837 I mean to tell you where I'm coming from

02:04 - 06.806 so that you can maybe answer it in context.

02:04 - 07.139 Sure.

02:04 - 11.544 The, the General Assembly, instructed

02:04 - 15.247 that the, and the e

02:04 - 19.385 o a shall be quote shall be construed liberally

02:04 - 22.888 for the accomplishment of the purpose thereof.

02:04 - 28.394 And so my question is in the context of what I just quoted,

02:04 - 33.165 would you consider the the definition that's been implemented,

02:04 - 36.335 to be a liberal,

02:04 - 38.771 definition of the word sex?

02:04 - 40.139 No, I would not.

02:04 - 44.810 And the reason why is the, the construed liberally

02:04 - 48.280 language pertains to the facilitation

02:04 - 51.283 or the implementation of the statutory

02:04 - 55.988 basic policy decisions that are made, the reason why it isn't a liberal,

02:04 - 59.391 facilitation of that

02:04 - 03.362 is because it's a new public policy determination.

02:05 - 09.201 It's a redefining of the term sex, whether it's a constitutionally defined term,

02:05 - 13.873 which is the Pennsylvania Supreme Court spoke loudly and clearly last year.

02:05 - 16.942 And Allegheny reproductive Health and said,

02:05 - 20.412 under the equal protection clause of the Pennsylvania Constitution, there's

02:05 - 23.549 no more than two sexes, male and female.

02:05 - 27.186 That decision, the court reference back the

02:05 - 30.656 for a the act and said

02:05 - 35.127 the act predates the constitutional amendment

02:05 - 40.232 and the constitutional amendment is consistent with the provisions of the act

02:05 - 46.038 in which there are only males and females, that the term sex has only been

02:05 - 49.241 recognized within the Commonwealth of Pennsylvania as males and females.

02:05 - 54.079 That is a public policy decision that the General Assembly has made.

02:05 - 58.350 And quite honestly, the citizens of the Commonwealth of Pennsylvania

02:05 - 01.754 have made, in adopting the amendment to the Constitution,

02:06 - 03.856 the Equal Protection Amendment.

02:06 - 07.960 And in both settings, the definition definition is clear.

02:06 - 12.064 The term sex and the Commonwealth of Pennsylvania is males and females.

02:06 - 17.369 And you base that on Allegheny reproductive case that that

02:06 - 20.673 that supreme Court decision decided the issue

02:06 - 24.310 of a binary definition of sex.

02:06 - 25.611 No, I based it.

02:06 - 28.247 I based it not only on that, but the case law. We've,

02:06 - 33.118 the case law that's cited in the pleadings,

02:06 - 35.654 that the

02:06 - 38.023 A has consistently

02:06 - 42.361 been interpreted that the term sex as used in the IRA

02:06 - 46.832 has consistently been interpreted as male or female.

02:06 - 50.903 That is the public policy determination of the General Assembly

02:06 - 52.338 in the Commonwealth of Pennsylvania.

02:06 - 55.741 And it's been consistent up until the adoption of this regulation.

02:06 - 59.278 So that's where they they've failed

02:06 - 02.381 the two prongs on the non delegation doctrine.

02:07 - 07.820 One, they don't have the authority to make public policy determinations.

02:07 - 09.388 That's the General Assembly.

02:07 - 12.391 And two, the language that they're referenced.

02:07 - 16.428 If that gives them the authority, the facilitate language

02:07 - 19.632 that gives them the authority to redefine

02:07 - 23.869 the definition of sex, there are no safeguards on that.

02:07 - 27.773 That language would be so broad that they could define it

02:07 - 30.609 the way they've defined it, which is incredibly broad.

02:07 - 34.079 They could even go broader and there would be no check and balance on that.

02:07 - 35.414 There's no safeguards.

02:07 - 38.651 As the case law said, is the,

02:07 - 42.254 the regulations affect the federal funding

02:07 - 45.257 and your compliance with the Pennsylvania school Code?

02:07 - 47.393 And the two parts.

02:07 - 49.695 I'll start with the Pennsylvania school code.

02:07 - 53.599 And we've referenced this, there are several provisions, section

02:07 - 56.802 seven 740 or the Pennsylvania public school code

02:07 - 59.938 clearly requires school districts to segregate.

02:07 - 05.310 If it's what I anticipate, it's 1947 or 1949 language.

02:08 - 07.346 It talks about outhouses.

02:08 - 10.349 So, we're taking that as present day,

02:08 - 13.719 restroom facilities must be segregated by sex.

02:08 - 18.257 And once again, it says, both sexes in that section,

02:08 - 22.027 signifying that there are only two sexes, male and female,

02:08 - 25.097 which is consistently been the interpretation in the application

02:08 - 28.100 of that section with respect to the federal funding.

02:08 - 33.038 The both school districts, the South Side School District,

02:08 - 33.739 as well as the Knox

02:08 - 37.676 School District are recipients, direct and indirect recipients of federal funding.

02:08 - 40.879 As such, they're required to, abide by,

02:08 - 44.583 the rules and regulations of the Department of Education.

02:08 - 48.487 Executive orders of, the current president of the United States,

02:08 - 53.525 which says that, there are only two sexes, male and female.

02:08 - 57.129 So that's how we're in the regulation.

02:08 - 01.667 Does it prohibit male and female bathrooms?

02:09 - 08.540 I didn't want to.

02:09 - 10.609 No. That's okay. Just staring off into space.

02:09 - 11.777 I'm sorry I didn't.

02:09 - 15.481 So does the regulation anywhere prohibit

02:09 - 20.319 exclusively male and exclusively female bathrooms?

02:09 - 22.855 Does that exist in the regulation?

02:09 - 24.823 No, it doesn't explicitly forbid.

02:09 - 28.060 But what it does is it declares that,

02:09 - 31.630 if you restrict the,

02:09 - 33.065 restroom

02:09 - 37.069 facilities, locker room facilities, other programs to males and females only,

02:09 - 40.339 you're acting in a discriminatory manner to all of the other

02:09 - 44.076 definitions of sex that we've adopted through the regulation.

02:09 - 47.346 It and I think,

02:09 - 49.648 Judge Wolf, if I can, because just as an

02:09 - 52.651 in advance of the,

02:09 - 56.388 both the case, which I think is informative,

02:09 - 01.560 the US Supreme Court case, in, in both the US Supreme Court was dealing

02:10 - 04.630 with a situation where, an employer,

02:10 - 08.300 terminate an employee's employment,

02:10 - 13.071 based upon two scenarios, one, their transgender employee status.

02:10 - 15.707 The other was a homosexual employee.

02:10 - 18.577 And the court did an analysis, and the analysis was under title

02:10 - 20.612 seven fairly enough to acknowledge that.

02:10 - 23.382 And when they went

02:10 - 26.385 through that analysis, the allegation was that

02:10 - 30.556 as a male, homosexual employee,

02:10 - 34.359 I engage in traits or behaviors,

02:10 - 40.098 that are typical for a female employee and tolerated by the employer.

02:10 - 45.404 And, female employees at Gay engage in that conduct.

02:10 - 49.641 Or those traits, are not fire.

02:10 - 52.077 There is no adverse employment action.

02:10 - 54.780 And the court associated that with

02:10 - 57.749 that's a sex protected, scenario.

02:10 - 58.450 Okay.

02:10 - 01.687 So what they said was but for they did the buck for analysis,

02:11 - 06.391 but for the fact that they exhibited those traits, whether it be a homosexual,

02:11 - 09.895 whether it be transgender, they would not have been fired.

02:11 - 13.565 So I agree with your

02:11 - 16.869 your question with respect to well, does that equate the

02:11 - 20.772 to the same type of title nine analysis.

02:11 - 23.542 Well, the

02:11 - 26.912 HRC relied upon that

02:11 - 31.250 for the proposition that we get to, insert

02:11 - 34.253 trait evaluation into the defining of sex.

02:11 - 40.626 Under the Southside School District policy or the Knox School District

02:11 - 43.695 policy traits are not part of the equation.

02:11 - 46.298 Students are not male.

02:11 - 52.037 Students are not being denied the ability to access female designated restrooms.

02:11 - 55.874 Female designated locker rooms, or participate in female designated

02:11 - 57.876 athletic programs.

02:11 - 00.879 Because of traits,

02:12 - 03.382 they're being treated equally

02:12 - 06.385 with all other male or female students.

02:12 - 11.223 So if I'm a heterosexual student that does not demonstrate those traits

02:12 - 15.527 that the court and Bostick took into consideration

02:12 - 19.665 in reaching its conclusion, or if, a male

02:12 - 22.801 heterosexual student that does

02:12 - 25.804 engage in those traits or behaviors,

02:12 - 30.208 both are barred from entering into female designated

02:12 - 35.480 locker rooms, restrooms, or athletic programs, and vice versa

02:12 - 38.150 to do otherwise.

02:12 - 42.387 And, justice courses mentioned this because he saw the

02:12 - 46.558 the writing on the wall that this case would be looked at to say,

02:12 - 49.828 see, this stands for the proposition that,

02:12 - 52.898 you know, locker rooms, restrooms,

02:12 - 55.901 etc., etc..

02:12 - 58.537 It the case doesn't stand for that.

02:12 - 04.042 The legal analysis that the court applied, we believe is comparable

02:13 - 07.446 or is an appropriate analysis in this situation.

02:13 - 11.216 The school district's policies, contrary

02:13 - 14.219 to the requirements of the regulations,

02:13 - 19.391 treat males, whether they're demonstrating

02:13 - 23.028 heterosexual, transgender,

02:13 - 25.197 bisexual.

02:13 - 27.933 Any of the definitions,

02:13 - 29.868 they're being treated the same.

02:13 - 34.039 The regulations are saying no, no, treat them different based upon their

02:13 - 37.275 traits,

02:13 - 38.210 Fosdick says.

02:13 - 40.379 That's constitutional discrimination.

02:13 - 41.780 For example, in Bostick,

02:13 - 45.684 if the if the facts were changed and you had an employer that only hired,

02:13 - 49.621 homosexual or only hired

02:13 - 54.326 transgender employees and they found an employee to be heterosexual,

02:13 - 57.929 it would be discrimination to fire that employee

02:13 - 02.067 who is not demonstrating the traits of those two classifications.

02:14 - 05.537 The school districts don't do any of that analysis.

02:14 - 08.840 The school district say whatever traits you exhibit

02:14 - 13.645 is irrelevant to the determination of whether you have access

02:14 - 17.082 to a male restroom or a female restroom.

02:14 - 20.919 If you are a male, you can just

02:14 - 25.557 you can demonstrate and engage in whatever behavior you want, and it's irrelevant.

02:14 - 29.194 You only have access to male facilities.

02:14 - 31.430 If you are a female.

02:14 - 34.800 You can identify, you can demonstrate traits.

02:14 - 39.104 You can be whoever you want to be, but you only have access to

02:14 - 42.908 female facilities.

02:14 - 44.176 That's not discrimination.

02:14 - 47.045 Discrimination. It is under the regulations.

02:14 - 50.048 Thank you all much. Okay.

02:14 - 50.682 People who.

02:14 - 59.257 Thank you.

02:14 - 00.492 Your your honors.

02:15 - 02.794 Before I get to my rebuttal points, I just want to note

02:15 - 05.831 for the record as well, I notice many of the issues as Judge Wolfe did,

02:15 - 09.835 and most of the cases cited between pages 39 and the end of the brief,

02:15 - 12.170 which are the ones I reviewed closely, are cited for either

02:15 - 16.074 the an opposite proposition or an entirely different proposition.

02:15 - 18.176 So why didn't you bring it up then?

02:15 - 21.246 Before now, I was focusing on the merits of the case,

02:15 - 23.882 Your Honor.

02:15 - 26.384 And honestly, the fact that there could have been involved in it.

02:15 - 28.553 Okay, well, you're turning to the merits.

02:15 - 30.889 I have four points that I'd like to make here.

02:15 - 34.526 First, the language of the AA does not use the term facilitate.

02:15 - 36.661 The verb is actuate.

02:15 - 40.499 And that is because the Commission empowered the General Assembly, empowered

02:15 - 46.471 the commission to effectuate the policies and provisions of anti-discrimination

02:15 - 51.143 that the General Assembly laid out in the report, and the PFOA.

02:15 - 55.480 Second, the regulations did not redefine sex.

02:15 - 58.984 They defined in the first instance for the first time

02:15 - 02.254 what constitutes discrimination because of sex.

02:16 - 06.858 For purposes of of the IRA and PFOA, the term sex

02:16 - 10.929 is not defined in the statute, and it had not previously been defined.

02:16 - 15.000 But the General Assembly empowered the Commission

02:16 - 18.970 to provide definitions to effectuate the policies

02:16 - 23.275 and provisions of the acts pursuant to its broad grant of legislative rule.

02:16 - 25.877 Isn't it in the air?

02:16 - 29.514 Hey, HRC and the Constitution, male, female.

02:16 - 33.552 So the quote that, petitioners point to an HRC

02:16 - 37.589 is the dictionary definition of sex, which was used during step

02:16 - 41.760 one of the Edmunds analysis as part of interpreting the Equal Rights Amendment.

02:16 - 44.963 The Equal Rights Amendment does not use the term male or female.

02:16 - 49.668 Well, the reference to the HRC case referenced the the Constitution.

02:16 - 52.003 What does the Constitution say?

02:16 - 56.374 The Equal Rights Amendment, article one, section 28 of the consent states

02:16 - 59.744 that equality of rights under the law shall not be denied or abridged

02:16 - 03.615 in the Commonwealth of Pennsylvania because of the sex of the individual.

02:17 - 06.718 It does not use the term male or female, the Supreme Court,

02:17 - 09.721 as part of it, as part of its Edmonds analysis,

02:17 - 13.758 use the dictionary definition for step one of that in the analysis

02:17 - 16.795 to establish a baseline by by

02:17 - 20.031 which to then decide to ultimately overturn.

02:17 - 24.002 Fisher, which had held that the ERA did not reach discrimination

02:17 - 28.673 based on a carrying a unique characteristic, in that case pregnancy.

02:17 - 33.612 Ultimately, the the Supreme Court in Allegheny did not make any conclusive

02:17 - 37.515 determination that sex is a binary for the purposes of the era

02:17 - 40.785 or for the purposes of all of Pennsylvania law.

02:17 - 44.923 To the contrary, in the majority opinion, the Supreme Court in footnote

02:17 - 47.692 five noted that providers recognize

02:17 - 50.729 that transgender men and people whose gender identity is

02:17 - 54.633 binary may have female reproductive organs

02:17 - 57.102 and may be capable of pregnancy and childbirth.

02:17 - 00.805 So even in that opinion, the Supreme Court acknowledged the existence

02:18 - 03.675 of transgender and non-binary individuals.

02:18 - 05.610 You had you had four points.

02:18 - 06.745 I think he's now two.

02:18 - 09.614 I want to make sure you get to the other two points.

02:18 - 12.984 Yes, Your honor, so, the the General Assembly

02:18 - 18.123 empowered the commission to adopt, rules

02:18 - 21.126 and regulations that give meaning to terms that are undefined

02:18 - 24.429 in the, in PFOA.

02:18 - 26.631 Whether or not the Commission is properly done

02:18 - 29.634 so is not analyzed under the non delegation doctrine.

02:18 - 34.172 It is analyzed under tire jockey, which the the three part tire

02:18 - 38.343 jockey test, which is used to determine whether a regulation or action

02:18 - 41.913 taken by an agency is consistent with its legislative.

02:18 - 45.116 We delegated authority is adopted with the proper procedures

02:18 - 49.754 and is reasonable per green analytics, the Supreme Court decision that came out

02:18 - 53.658 after we filed our brief, the Supreme Court has made clear that step

02:18 - 59.431 one of that decision involves looking at the agency's enabling statute

02:18 - 04.269 in its statutory context, to determine whether the agency has the authority

02:19 - 09.207 to provide a definition or a standard not present in the statutory text.

02:19 - 13.845 If the court were to conduct a tire jockey analysis here again

02:19 - 17.048 that has not been raised by petitioners, but where the court to do so,

02:19 - 20.118 I think it could easily conclude between

02:19 - 24.689 the Commission's broad delegation of a broad grant of legislative

02:19 - 27.959 rulemaking authority, the many statements of

02:19 - 32.597 of public policy with regards to the dangers and harms

02:19 - 37.635 of sex discrimination, the specific delineation of forms

02:19 - 40.805 of discrimination that are prohibited, the court could conclude.

02:19 - 46.411 And building on the strength of the precedents from 1967 and 1973,

02:19 - 49.914 would conclude, the General Assembly did intend to grant

02:19 - 53.818 the Commission authority to define terms in the acts

02:19 - 56.221 that are not defined by the General Assembly.

02:19 - 59.657 Okay.

02:19 - 01.059 Council, we have to wrap up.

02:20 - 02.127 Thank you. Wrap up.

02:20 - 05.130 I would love to hear your fourth point.

02:20 - 07.799 My fourth point, Your Honor.

02:20 - 10.802 Petitioner's counsel cites to Bostock for the point,

02:20 - 14.739 that the Supreme Court in that decision was not intending

02:20 - 18.410 to reach situations like bathrooms and, sports teams.

02:20 - 19.778 However, the Supreme Court

02:20 - 23.481 in that decision did reach employment, which these regulations cover.

02:20 - 26.718 And petitioners have brought a facial constitutional challenge

02:20 - 29.754 to the regulations and therefore must show that the regulations

02:20 - 33.792 are unlawful under all circumstances, including in the employment context.

02:20 - 35.560 And petitioners concede

02:20 - 40.131 that the reasoning of Bostock justifies the regulations here without.

02:20 - 42.267 Your honor, thank you for your time.

02:20 - 45.437 We ask that the court find that the Commission's regulations are valid

02:20 - 47.705 and dismiss the petition.

02:20 - 49.607 Thank you very much for your time.

02:20 - 56.648 Thank you, Your Honor.

02:20 - 59.751 We have not conceded to the extent that there's been any implication

02:20 - 03.288 that we've conceded somehow that Bostock controls us and enables

02:21 - 06.424 the HRC to to implement these regulations.

02:21 - 09.727 Contrary to that, it doesn't

02:21 - 12.864 there's a but for standard in Bostock,

02:21 - 17.268 in determining, whether there's discrimination.

02:21 - 19.637 I agree that that's title seven, an analysis.

02:21 - 21.406 It would be a title nine analysis.

02:21 - 24.108 The analysis we would be would be the same.

02:21 - 27.045 And I would note that in Bostock, the Supreme Court

02:21 - 30.048 didn't indicate that there's more more

02:21 - 34.152 that sex is defined by more than males and females.

02:21 - 37.021 The analysis of Bostock, even the Pennsylvania or the U.S.

02:21 - 41.826 Supreme Court, left their analysis analysis to being solely males

02:21 - 43.127 and females.

02:21 - 48.566 With respect to there being no definition, since 1955,

02:21 - 52.937 the Fra has been interpreted.

02:21 - 56.207 The term sex has been interpreted as males and females.

02:21 - 59.677 The where

02:22 - 02.514 the courts have interpreted that the court has interpreted.

02:22 - 03.948 Correct, correct it.

02:22 - 07.085 And the reason I note that, Judge Wolf, is that

02:22 - 11.256 and I don't know, off the top of my head, but I would assume that the Fra

02:22 - 14.292 has been amended, since 1955.

02:22 - 16.194 I'd have to take a look at the record.

02:22 - 20.765 And I would assume that the, Fra has been amended

02:22 - 23.935 since the court's interpretation of,

02:22 - 26.638 sex being male and female.

02:22 - 29.507 So if the General Assembly,

02:22 - 32.277 disagreed with the court's

02:22 - 35.280 interpretation of the term sex,

02:22 - 40.084 in their decisions, it is upon the General Assembly obligation

02:22 - 44.155 to amend, the act to address that inconsistency.

02:22 - 50.194 I don't believe there's been any amendment to the Fra or the Pennsylvania,

02:22 - 55.500 Fair Educational Opportunities Act, which is also,

02:22 - 59.671 dealt with sex in the form of males and females only.

02:22 - 03.441 If that was inconsistent with the public policy determination

02:23 - 06.678 made by the General Assembly, the General Assembly would be

02:23 - 12.250 the one would need to address that misinterpretation by the court.

02:23 - 13.718 Would you have it that way?

02:23 - 16.387 If the court incorrectly

02:23 - 19.390 interpreted just males and females, that is not occurred.

02:23 - 23.795 So the reason that the regulations are in place is that

02:23 - 26.664 is determined.

02:23 - 31.235 We're we're not going to wait for the General Assembly to change the definition.

02:23 - 33.171 We're going to take it upon ourselves.

02:23 - 35.907 That's a violation of the non delegation doctrine.

02:23 - 40.211 It creates an equal protection issue under Pennsylvania's constitution

02:23 - 45.383 because it is treating males and females based upon characteristics,

02:23 - 50.188 as defined by the Pennsylvania Human Relations Commission.

02:23 - 51.556 Differently.

02:23 - 54.993 So with that, we would respectfully ask, that you

02:23 - 59.197 declare the, regulations void ab initio.

02:23 - 03.401 And I it's always it's an honor to, appear before this court.

02:24 - 05.737 And I, madam President. Judge, I apologize.

02:24 - 08.873 I feel like I turn my back to you, over there in the corner.

02:24 - 11.843 Well, with that, we thank you for your time.

02:24 - 12.677 Thank you very much.

02:24 - 14.912 Both sides. Thank you very much.

02:24 - 17.915 The next case is number 84,

02:24 - 21.686 Pennsylvania State System of Higher Education versus the PLB.

02:24 - 29.861 In our next case, the Association of Pennsylvania

02:24 - 33.831 State College and University Faculties, which represents professional employees

02:24 - 38.603 and Commonwealth universities, conducted a statewide strike in October of 2016.

02:24 - 42.774 Some members of the association's local chapter at the university

02:24 - 44.676 participated in the strike.

02:24 - 48.212 In December 2016, the executive Committee of the association's

02:24 - 52.083 local chapter at the university decided to post a list of members

02:24 - 55.086 who did not participate in the October 2016 strike.

02:24 - 00.658 The document included a heading and large font which stated Strike breakers 2016.

02:25 - 03.061 The infamous 43.

02:25 - 07.131 On the same date, the local association president sent an email informing members

02:25 - 09.133 that the Strike Breakers list had been posted

02:25 - 12.136 on the association's bulletin board and the local chapter's office.

02:25 - 17.041 The university told the professor to take down the list, and started

02:25 - 20.578 a disciplinary investigation of the local president for posting the list.

02:25 - 24.382 The association found a charge of unfair labor practices

02:25 - 28.019 with the Pennsylvania Labor Relations Board, alleging that the university's

02:25 - 31.022 conduct violated the Public Employee Relations Act,

02:25 - 35.526 and a final order of the board determined that its hearing examiner did not air,

02:25 - 39.931 and concluding that the university violated section 1201 A1 of the Public

02:25 - 43.868 Employee Relations Act when it ordered the association to remove the list

02:25 - 46.871 and investigated the local president for posting a list

02:25 - 49.440 and its appeal to this court.

02:25 - 51.609 The university argues that the board aired,

02:25 - 54.779 and finding that the association engaged in protected activity

02:25 - 57.782 by publishing the list in a public university hallway.

02:25 - 01.753 The university argues that this action was at best an association

02:26 - 05.857 sponsored public and explicit shaming and or humiliation, humiliation,

02:26 - 09.393 a faculty members who chose to cross the picket line

02:26 - 12.930 and at worst, an invitation by the association for retaliation

02:26 - 16.467 and or a threat to the careers of those faculty who exercise

02:26 - 19.771 their rights under section 41 of the act not to strike.

02:26 - 23.608 Therefore, the University maintains that this court should reverse

02:26 - 26.277 the board's final order and remain with the direction of the board.

02:26 - 28.679 Dismiss the charge.

02:26 - 32.049 The board argues that posting of information by a labor organization

02:26 - 36.220 is a protected activity under section 401 of the Public Employee Relations Act,

02:26 - 39.891 and that it posting only loses its protections of that act

02:26 - 43.494 if it is offensive, defamatory, appropriate or obnoxious,

02:26 - 47.765 but not if it is merely intemperate, inflammatory or insulting.

02:26 - 49.934 The associate.

02:26 - 53.004 The Association argues that there is 50 years of sound

02:26 - 56.340 legal authority that solidifies its right to use rhetorical

02:26 - 58.442 and even insulting exaggerations

02:26 - 01.612 when it believes them to be an effective means of making a point,

02:27 - 05.016 and that the publication of the names of picket line crossers

02:27 - 09.720 has been an acceptable, protected concerted activity since the 1960s.

02:27 - 13.791 Absent profane, defamatory or appropriate language,

02:27 - 17.829 the association argues that the list was factually and legally protected.

02:27 - 18.963 Activity.

02:27 - 21.232 With that, let's listen to the arguments.

02:27 - 23.334 Good afternoon.

02:27 - 25.503 What's ready? Please. The court.

02:27 - 26.737 My name is Paul Lally,

02:27 - 30.808 and I'm, representing the petitioner of the state system of Higher Education.

02:27 - 34.045 I'd like to ask, three minutes of rebuttal time.

02:27 - 37.081 Three minutes rebuttal? Yes, please.

02:27 - 40.184 So obviously, the context of this poster matters,

02:27 - 44.755 and it matters a lot into the inquiry that the board is supposed to conduct.

02:27 - 48.526 And then what would be asking this court to, conduct the context of what's

02:27 - 52.129 in the poster and what happens before this poster is put up?

02:27 - 57.435 Now, an important piece of, evidence that was introduced at the hearings.

02:27 - 58.903 And we do have to go back in time. All right.

02:27 - 00.338 Could you move up? Just.

02:28 - 02.073 I'm sorry. No. Okay. Thank you.

02:28 - 03.241 An important piece.

02:28 - 04.642 We have to turn back the clock

02:28 - 08.246 a bit here, because the events we're talking about happened in 2016.

02:28 - 12.750 But you have an important piece of evidence is the communication

02:28 - 16.821 from the local union president, an email that she sent out

02:28 - 21.525 to essentially all faculty in October 12th, 2016.

02:28 - 25.062 Now we know the strike has been threatened.

02:28 - 27.698 We're very close to when the strike actually happens.

02:28 - 28.566 And a lot of publicity

02:28 - 31.903 about the where negotiations are in the contract negotiations.

02:28 - 36.440 And you have this email from the union president that says in part, quote,

02:28 - 39.844 keep in mind that persons who voted to hire

02:28 - 43.581 you also have the power to say, we don't want you back.

02:28 - 46.083 So what's the safest place for you?

02:28 - 47.518 It's not on campus.

02:28 - 49.186 So that's in her email to.

02:28 - 51.522 And there's other parts of this email.

02:28 - 53.190 She testified about this at the hearing.

02:28 - 57.428 Part of this is to try to encourage people to stand in line with the faculty union

02:28 - 58.729 when they go on strike.

02:28 - 00.631 But this part

02:29 - 03.634 certainly has threatening implications to it.

02:29 - 08.306 And that matters because when you send that kind of email to faculty that include

02:29 - 12.143 adjunct faculty, temporary faculty, they're only on one year contracts.

02:29 - 16.714 Whether they come back from year to year depends very significantly

02:29 - 20.718 on recommendations that come from the faculty departments where they're working.

02:29 - 23.454 In fact, the process basically initiates there.

02:29 - 27.124 Now, ultimately, management, the dean and higher up decide

02:29 - 30.661 whether there's going to be temps hired, but that they have weight,

02:29 - 33.531 they have influence in how that process happens.

02:29 - 37.969 And they can have an effect on whether or not an adjunct faculty gets to come back,

02:29 - 42.006 for another year, to teach, if that's what they're interested in doing.

02:29 - 45.476 Then we have the three day strike, October 19th

02:29 - 48.479 to October 21st of 2016.

02:29 - 51.816 The first, and thankfully to this point only strike with faculty strike.

02:29 - 54.518 We've had in the state system. And the strike is settled.

02:29 - 57.755 So the strike is settled

02:29 - 00.758 and it's let's think about six weeks later

02:30 - 05.796 that you have the poster put up and it's put up in a bulletin board.

02:30 - 09.367 When you say poster, yes, it was eight and a half by 11.

02:30 - 10.568 Right.

02:30 - 12.870 I think might be roughly that size. Yeah.

02:30 - 14.672 I refer to it as a poster. It could be a posting.

02:30 - 15.906 You could call it a letter.

02:30 - 19.677 It was a it was an eight and a half by 11 sheet

02:30 - 23.948 of printer paper that was effectively on display for a few hours

02:30 - 28.786 on a Friday afternoon and mid-December, when the campus was probably dead.

02:30 - 32.623 I don't know that there's anything in the record about

02:30 - 34.658 who was on campus on December 8th.

02:30 - 38.029 I said, probably, yeah, I don't I don't know the answer to that,

02:30 - 39.830 but I can tell you one thing.

02:30 - 43.801 A person whose name is on that list, her office is directly across

02:30 - 47.038 from where that list is posted and her name is on it.

02:30 - 50.041 And she testified about at the hearing, and she's one of the people

02:30 - 53.511 who immediately complains to the university administration

02:30 - 56.747 that she felt threatened by this, that this was an invitation

02:30 - 01.852 for by the union and specifically the union president.

02:31 - 03.788 Where does the threat come from?

02:31 - 07.224 The what language in the I'll use your word poster.

02:31 - 10.394 Where does the threat come from?

02:31 - 13.431 In the in the poster itself, you will have

02:31 - 16.500 the listing of the person's status.

02:31 - 17.234 Right?

02:31 - 18.669 Whether they're adjunct or whether tenure,

02:31 - 21.138 because it's listed, their names aren't just listed as names.

02:31 - 24.141 They're under categories that say whether they're tenured tenure track

02:31 - 29.146 and whether they are, adjunct faculty.

02:31 - 33.951 And then you have them described as being infamous, the infamous 43.

02:31 - 38.823 That's it.

02:31 - 41.292 Well, that

02:31 - 45.096 but you also have to go back to you can't take that out of the context

02:31 - 46.597 of what the union president

02:31 - 49.600 had sent around in that her email to all the faculty, which is

02:31 - 52.636 would it have been threatening for you to have said

02:31 - 55.806 and I think this is what they meant, and pardon

02:31 - 58.809 the, use but scabs,

02:31 - 00.978 would that have been threatening

02:32 - 04.148 just the use of the term scabs, that of infamous the scabs?

02:32 - 05.382 I don't know that.

02:32 - 08.486 I mean, certainly the National Labor Relations Board has recognized

02:32 - 11.489 scabs as being a kind of word in and of itself.

02:32 - 14.692 So it's infamous worse or better than scab?

02:32 - 18.562 Well, I think you I think infamous is bad.

02:32 - 20.131 I don't know whether it's worse,

02:32 - 24.869 but you can't take that out of the context of what the what this is put up for,

02:32 - 26.837 why you need to

02:32 - 29.840 put the adjunct status of the people on that list.

02:32 - 32.977 No, no witness at the labor board hearing.

02:32 - 34.445 And this is absolute charge.

02:32 - 36.714 That's the burden in this case

02:32 - 38.883 could testify about why

02:32 - 43.387 that why the why the employment status of anybody on that list was included.

02:32 - 45.956 The only thing that their members were trying to find out,

02:32 - 47.758 because this is the justification, is that the

02:32 - 50.761 their members apparently wanted to know who who crossed the picket line

02:32 - 54.698 is, who crossed the picket line, but that they did a lot more than that

02:32 - 56.133 when they posted that list.

02:32 - 58.068 They're trying to shame them.

02:32 - 00.571 They were doing more than, I think, trying to shame them.

02:33 - 04.208 I mean, that certainly the first hearing and the hearing examiner in the first,

02:33 - 09.947 proposed decision, in order from 2017 called it a public shaming.

02:33 - 10.981 And I think that's accurate.

02:33 - 15.819 But it's the words infamous, mean, disgraceful,

02:33 - 21.559 notorious, evil scab doesn't mean that scab is very specific to Scott.

02:33 - 25.596 Means somebody who's going to cross the picket lines crossing a picket line.

02:33 - 27.765 Yeah, it is much broader, I think, than that.

02:33 - 31.035 And and this is really going to

02:33 - 34.638 I think there's, there's a two part analysis here, potentially.

02:33 - 38.509 First question the court has the answer is, is it even protected

02:33 - 42.012 activity by the union president to have posted,

02:33 - 45.783 protected communication to have directed the posting of this?

02:33 - 46.083 Right.

02:33 - 50.287 Because don't know, the employees that are listed aren't named on the list.

02:33 - 52.756 Also have a right

02:33 - 55.125 not to partake in certain union activities.

02:33 - 55.726 Absolutely.

02:33 - 59.663 They have the right under section 401 of Pyra to not participate

02:33 - 04.001 in union activities to not cross that, to cross the picket line, to not strike.

02:34 - 07.538 And the union in the collective bargaining agreement.

02:34 - 09.807 And, judge McCullough, you were dealing with this provision,

02:34 - 10.808 I think, in an earlier case,

02:34 - 14.378 this week, has a fair practices provision in, in article three.

02:34 - 17.815 And in that for a practices provision, the union also agrees.

02:34 - 20.918 And any individual faculty member not to describe

02:34 - 24.255 on the basis of union activity or lack thereof,

02:34 - 27.424 I think that's the language, in the contract.

02:34 - 30.694 So, you know, again, we go to the question of did

02:34 - 35.332 the union engage in, protected activity through this communication?

02:34 - 38.636 And again, I think you can't just look at the poster in isolation.

02:34 - 39.970 Yes, you also should look at it.

02:34 - 44.708 And this is where the board just left this out completely in its in its findings

02:34 - 48.646 of that pre strike communication from the union president.

02:34 - 52.883 Because that's what ties it into being potentially an invitation

02:34 - 54.818 for other faculty members

02:34 - 58.989 to retaliate against faculty members who cross the picket line.

02:34 - 02.826 Then the next test, if the court were to conclude that

02:35 - 06.897 regardless that of our our position that it's not that it is protected

02:35 - 10.934 activity, then the board certainly has a, applied balancing test,

02:35 - 14.004 and it seems to be the appropriate inquiry there as well.

02:35 - 14.305 Okay.

02:35 - 18.275 The union's engaged in, protected activity under 401, and,

02:35 - 20.144 you know, is this an interference of coercion?

02:35 - 23.147 This is a standalone A1 charge in this case.

02:35 - 27.084 Does the employer have a legitimate interest in what it did?

02:35 - 29.586 And I think the record is clear here

02:35 - 32.356 that the state system had a legitimate interest

02:35 - 36.427 in directing that this poster be taken down out of a public hallway

02:35 - 40.998 and then investigating, because it's the inception of the investigation

02:35 - 45.736 that's in response to two, at least initially, two faculty members complaints

02:35 - 51.508 that the board says, is coercive, that the BR board says violates a one,

02:35 - 56.113 and the board says the system doesn't have a legitimate reason

02:35 - 00.984 for having conducted, the investigation that it conducted, because ultimately,

02:36 - 04.088 and then again, we're going past the point where it really matters for what

02:36 - 08.025 this claim that we did wrong, the system concludes

02:36 - 11.028 that there was no retaliatory action actually taken.

02:36 - 14.531 And so they didn't move anything, do anything on the there was no discipline

02:36 - 17.868 discovery conference or some discipline to the union president.

02:36 - 21.071 If the university had allowed the poster to stay up,

02:36 - 23.107 would it have interfered with their right?

02:36 - 26.477 Under the employee rights

02:36 - 29.346 to, refrain from any or all

02:36 - 32.349 collective bargaining activities,

02:36 - 34.518 meaning the the, wouldn't the university

02:36 - 37.521 have been put in a position then, of

02:36 - 41.358 if it hadn't taken the poster down,

02:36 - 43.494 the allowed it to stay up,

02:36 - 46.497 would it be engaging in

02:36 - 51.502 prohibiting them or or furthering them from exercising their

02:36 - 55.105 right to refrain from those activities?

02:36 - 58.842 I think it's the best way I would describe it is that there was

02:36 - 02.746 there's more risk as time goes on that somebody sees that poster

02:37 - 04.815 and that they act upon it.

02:37 - 10.354 If it is in fact, and that someone takes or does something in retaliation,

02:37 - 13.357 doesn't approve somebody wasn't there already an email in the,

02:37 - 18.462 the final order that's that said that the one of the faculty,

02:37 - 22.099 the emails part of the opinion when I crossed the line

02:37 - 25.202 to meet with administration regarding students, I find myself

02:37 - 29.039 faced with cyberbullying from both current and former colleagues.

02:37 - 32.109 At the time, I was fearful when I knew that I would have to be among

02:37 - 33.477 groups of faculty.

02:37 - 37.748 I was referred to as a scab and accurately, ironically, online

02:37 - 39.249 and on campus.

02:37 - 43.287 Yes, that that description is, I believe,

02:37 - 46.356 one one of the complainants talking about things that happen after

02:37 - 49.726 she crosses the picket line for really just one meeting with the provost

02:37 - 54.798 and before, she files the complaint, which is, I believe, on the same day

02:37 - 59.470 as the poster goes up, or if not, it was it's immediately after, which is

02:37 - 03.907 December 8th, and she's describing things that were happening on campus,

02:38 - 06.410 to her

02:38 - 10.080 that went into her fear that when she found out about her

02:38 - 13.884 name being included on this poster, that there might be some other retaliatory

02:38 - 17.287 or some some retaliatory action taken against her by faculty

02:38 - 22.259 who felt, angry with her for having not, stayed on the picket line.

02:38 - 25.762 When an employer receives a complaint where an

02:38 - 29.366 employee or individual is concerned for their safety,

02:38 - 33.437 do they have an obligation, which is an investigate, to ascertain

02:38 - 36.607 whether there is a legitimate concern of safety?

02:38 - 39.610 Thank you, Judge Cody. Yes, absolutely.

02:38 - 45.282 That is, you know, even the witness who testified, I asked him he was

02:38 - 49.152 he was a, part of the, participated in the investigatory

02:38 - 52.890 interview with the union president, and I asked him

02:38 - 56.627 if the faculty members come forward and complained they're being harassed.

02:38 - 00.397 Doesn't the university administration have a duty to investigate

02:39 - 02.299 to find out the basis of this?

02:39 - 03.467 And he said, yes.

02:39 - 05.536 I mean, he supported that. And that is correct.

02:39 - 07.838 We we can't leave our faculty members

02:39 - 11.308 potentially unprotected when under these circumstances.

02:39 - 13.277 And if they don't, they're liable.

02:39 - 14.177 Well, there's

02:39 - 16.280 hopefully we never find that out, but we don't want to we

02:39 - 19.283 we don't want to be in that position of having to find that out.

02:39 - 24.121 And again, we also are left unprotected by the board.

02:39 - 27.257 You know, if there's if there's threatening conduct that interferes

02:39 - 30.460 with an individual employee's, right to refrain from picket line,

02:39 - 33.664 the board won't let an employer file a charge.

02:39 - 36.400 They won't recognize the employer as having standing to do that.

02:39 - 39.770 And that's cited in a footnote in this, in the final order.

02:39 - 42.506 And I have, I believe, breached my time limits.

02:39 - 44.908 I'll be back with my three minutes. Mr..

02:39 - 46.209 Better thank you. Thank you.

02:39 - 53.917 Good morning.

02:39 - 55.786 Your honors may please the court.

02:39 - 57.321 My name is Carolyn Sargeant.

02:39 - 00.324 I'm here on behalf of the Pennsylvania Labor Relations Board.

02:40 - 04.294 Before I start, I'd like to reserve five minutes for the intervenor,

02:40 - 07.364 so I will be arguing for ten, and they will have five.

02:40 - 13.236 I'd like to explain to the court the analysis that the board goes through

02:40 - 18.609 in cases of coercion and how we applied our analysis in this case on these facts.

02:40 - 21.945 So as, Attorney Lally pointed out,

02:40 - 25.782 the first thing we have to look at was this protected activity.

02:40 - 30.921 And so in this case, we first looked through the board case law board case law.

02:40 - 34.057 Says that posting of

02:40 - 37.027 information to their members is protected.

02:40 - 39.262 But we didn't just stop there.

02:40 - 42.332 We looked at, well, this is a strike breaker poster.

02:40 - 45.902 So we looked to the National Labor Relations Board cases.

02:40 - 50.874 We looked at other state labor board cases, specifically Ohio and Georgia.

02:40 - 55.946 And, in those instances, we found cases that said,

02:40 - 59.449 posting a strike strike breaker list is protected activity.

02:40 - 02.619 And now some of those cases also, it wasn't a list.

02:41 - 05.856 It was the cartoon of defining what a scab is.

02:41 - 08.392 And things of that nature.

02:41 - 11.395 Were most of those cases are still libel cases.

02:41 - 16.900 So when you look at the Supreme Court cases that dealt with libel,

02:41 - 21.371 but then what the national board did was they took the Supreme Court cases and

02:41 - 26.643 applied it to their case law to determine whether, saying scab was protected.

02:41 - 30.447 So, so basically a national board took the libel cases

02:41 - 34.284 and applied it to what would constitute protected activity.

02:41 - 34.584 Okay.

02:41 - 38.722 And as Judge Kozy pointed out, the word infamous has a lot more

02:41 - 42.325 so definitional meaning than the word scab.

02:41 - 45.595 And so you used the word infamous to post that.

02:41 - 50.267 Why is that not retaliation against them for exercising their right

02:41 - 55.238 to refrain from the collective bargaining, the picketing, whatever?

02:41 - 57.541 Why is that not retaliation against them?

02:41 - 00.210 They have that right explicitly.

02:42 - 05.248 So, to just I will answer why it's not retaliation, but I did

02:42 - 10.187 look up definitions of information scab on the Merriam Webster dictionary online.

02:42 - 13.857 The definition of infamous that I found is having a reputation

02:42 - 17.194 of the worst kind, notoriously evil scab.

02:42 - 20.497 Also says a contemptible person.

02:42 - 24.334 And it also does mean a union member who crosses the picket line.

02:42 - 28.238 I think you just underscored our point

02:42 - 32.375 by saying the definition of infamous the worst person possible.

02:42 - 36.046 Well, so let's look at the board's analysis

02:42 - 40.484 when we determine when something crosses the line and loses protection,

02:42 - 45.589 the analysis is it has to be offensive, defamatory, obnoxious or violent.

02:42 - 50.660 But if it's just inflammatory or insulting, it doesn't cross that line

02:42 - 53.797 and it keeps its protected activity status.

02:42 - 56.867 In this instance.

02:42 - 57.734 And so Mrs.

02:42 - 02.172 Infamous also includes one of the board's definitions that would be

02:43 - 05.575 more than inflammatory.

02:43 - 09.146 Infamous is insulting, definitely insulting.

02:43 - 10.914 It does not cross the line.

02:43 - 13.950 And I will actually point to possibly be defamatory.

02:43 - 17.821 I'm not going to make that opinion from here now, but if someone calls you

02:43 - 22.492 the worst person possible to third parties, posted it in the school

02:43 - 26.062 for everyone to see, well, you also have to look at the context.

02:43 - 31.401 This was a strike and and unfortunately, emotions run high on a strike.

02:43 - 35.906 And as as I pointed out in our brief, the board doesn't condone name calling.

02:43 - 39.810 But unfortunately, this is what happens when when strikes happen

02:43 - 44.848 and some workers go on strike and some workers cross the picket line.

02:43 - 47.517 And so yes, this was name calling.

02:43 - 50.520 Yes, it was insulting, but it didn't cross the line.

02:43 - 53.557 But even even the board itself says it.

02:43 - 55.458 They have a list.

02:43 - 58.461 If it's if it's so offensive, so defamatory,

02:43 - 03.233 uproarious or obnoxious, but infamous also means uproarious.

02:44 - 05.035 So how does the board then go?

02:44 - 08.038 Oh, well, it really didn't fit the category

02:44 - 11.708 because it goes against what the board saying itself.

02:44 - 15.745 Your honor, I respectfully, disagree.

02:44 - 18.215 That infamous crosses the line.

02:44 - 21.218 Oh, but I also looked up the definitions in Webster's, and

02:44 - 25.088 I also looked for other words that mean the same.

02:44 - 26.923 And and it all fits there.

02:44 - 30.026 So I am just confused of how the board

02:44 - 35.232 went down one path, but then decided to skip over one of their own words

02:44 - 38.902 that they said would would not constitute an unfair labor practice.

02:44 - 42.539 Well, I will say, Your Honor, I did not see that definition.

02:44 - 45.675 And, I will still say

02:44 - 49.613 I stand by the board's decision that this was just insulting.

02:44 - 51.548 It's an opinion, right?

02:44 - 54.885 I mean, if I say you're the worst person possible.

02:44 - 58.955 Well, that can't be true, right?

02:44 - 02.559 It's an opinion expressed,

02:45 - 06.830 to exhibit contempt for that person, but

02:45 - 10.333 expressions of contempt

02:45 - 13.336 such as scab is protected activity.

02:45 - 15.038 Is it not?

02:45 - 17.073 I would agree with you, Judge Wolf,

02:45 - 20.944 that in this instance, this was just their way of,

02:45 - 26.249 expressing their discontent with the employees

02:45 - 30.787 that, crossed the picket line, and it's just their opinion that they're infamous.

02:45 - 34.424 And it was it was probably meant to be an insult,

02:45 - 38.461 but that doesn't, go against the board's,

02:45 - 43.166 analysis when we decide what is protected and what is not.

02:45 - 47.270 I did want to point out two cases in instances where we did

02:45 - 51.408 find the activity was not protected, that it did cross the line.

02:45 - 55.879 One is cited in our brief, it's the Ludwig versus

02:45 - 57.681 PA Department of Corrections.

02:45 - 01.284 That's where, there were two competing unions.

02:46 - 05.188 The union official from one,

02:46 - 09.726 photocopied, very vulgar, distasteful cartoon

02:46 - 13.463 labeled the names of the union officers from the other union.

02:46 - 18.468 It was depicting the union officers, kissing up to their teacher.

02:46 - 22.072 I will say it nicer than what the actual cartoon was.

02:46 - 24.741 We found that crossed the line.

02:46 - 26.810 It was obnoxious and offensive.

02:46 - 29.679 The other case is Redding School District.

02:46 - 33.116 In that case, and we did not cite to that in our brief,

02:46 - 38.221 that case, the local union president, when she was speaking to a coworker,

02:46 - 42.125 referred to that coworker with a profanity.

02:46 - 46.429 And then later on, when she talked to a different coworker, she used profanity,

02:46 - 50.266 in disagreeing with that coworker concerning a labor issue.

02:46 - 54.537 And we also said that that was offensive and loss of protection.

02:46 - 57.440 So, I just I have a concern here.

02:46 - 59.209 If you look at the totality of the

02:46 - 03.146 circumstances that the union came in and said that, well,

02:47 - 07.050 we got a lot of inquiries about who the strikebreakers were,

02:47 - 10.053 and so they decided to post a list.

02:47 - 14.891 And then they wanted to put infamous, which is extremely bad, meeting.

02:47 - 20.497 And but then when they got complaints from the university,

02:47 - 22.932 you got some complaints from the individuals

02:47 - 26.236 that were on that list for concern and safety.

02:47 - 27.303 And then they went

02:47 - 31.107 and they investigated, which is typically what an employer must do.

02:47 - 35.678 Then they got charged with an unfair labor practice and retaliated where

02:47 - 39.015 the union itself, they didn't even have to use the word infamous.

02:47 - 40.517 They didn't have to post it.

02:47 - 43.420 They could have distributed the information in another manner,

02:47 - 46.956 not put it on public display.

02:47 - 49.959 So I'm a little concerned here about how the Labor

02:47 - 52.962 Relations Board balances against the university.

02:47 - 53.830 Yeah.

02:47 - 57.300 So, are you talking about the legitimate reason part of it?

02:47 - 58.268 Yes. Okay.

02:47 - 03.139 So when we look at legitimate reasons

02:48 - 06.242 proffered by an employer, it's not a balancing.

02:48 - 09.045 It's a totality of the circumstances test.

02:48 - 13.116 So the first up is we have to find that it was coercive.

02:48 - 14.317 We don't find its course

02:48 - 17.487 if we don't even get to whether they had a legitimate reason.

02:48 - 20.623 So in this instance, we did find it was coercive.

02:48 - 24.727 And so I will say it was broken into three different

02:48 - 26.563 that the investigation was.

02:48 - 31.501 Well, so there were actually three different issues or actions

02:48 - 32.435 of the employer.

02:48 - 35.305 It was the directive to take the poster down.

02:48 - 37.740 It was, the investigation

02:48 - 41.611 and then the solicitation of complaints against the union for posting it.

02:48 - 48.384 So I wanted to discuss them kind of separately because it's totality

02:48 - 52.689 in each instance, there's three separate unfair practices, if you will.

02:48 - 55.992 So with the directive,

02:48 - 59.929 they did not explain to the union

02:48 - 02.932 why they wanted them to take the poster down.

02:49 - 06.903 And that is part so when you have a legitimate reason,

02:49 - 11.941 what we're looking at here is did the union know of the reason?

02:49 - 16.646 You can't negate the coercive effect of their actions

02:49 - 20.216 if the employee or the union are not aware of it.

02:49 - 23.553 So it's not a balancing, it's more a totality.

02:49 - 28.224 What were the facts at the time when the action was taken?

02:49 - 31.761 And we did point that out and the hearing examiner pointed it out to

02:49 - 35.064 when they issued the directive, they didn't say,

02:49 - 37.066 I'm directing you to take it down,

02:49 - 41.137 because we had complaints from some faculty on the list

02:49 - 45.508 because they're concerned you're encouraging their fellow faculty members

02:49 - 48.878 to retaliate against you or against them.

02:49 - 53.249 And then also, they could have actually informally,

02:49 - 56.853 instead of doing a full blown investigation, they could have informally,

02:49 - 01.724 which the, provision in the CBA says gone to President Hess

02:50 - 06.396 and talked to her about this and said, we've had these complaints.

02:50 - 09.232 They're saying you're encouraging retaliation.

02:50 - 12.969 We have a duty to make sure you're not doing that, to

02:50 - 16.539 maintain the safety on the campus for these faculty members

02:50 - 21.911 and and said to them, why don't you just keep it up in your offices,

02:50 - 25.048 which they did point out. They did, however,

02:50 - 27.817 the university permitting them

02:50 - 32.822 to keep the list in their offices refutes their argument of their concern

02:50 - 36.459 that this was encouragement to retaliate against the faculty,

02:50 - 39.829 regardless of where the list was posted.

02:50 - 42.899 If the true intent was to encourage retaliation,

02:50 - 46.069 the list should have been taken down everywhere,

02:50 - 49.772 and so it refutes their argument of the concern for the safety,

02:50 - 53.676 because they allowed the union to keep the list up in their offices

02:50 - 58.381 and the list was still up six months later when we had the hearing,

02:50 - 04.220 and there was nothing in the testimony to show that anyone was retaliated against.

02:51 - 07.390 Okay, before you leave, if you have a question, go ahead.

02:51 - 09.459 You said there was three reasons.

02:51 - 13.029 Oh, so so then when you look at the investigation,

02:51 - 16.899 yes, that would have been coercive because a reasonable employee would say,

02:51 - 21.170 if I engage in protected activity, they're going to investigate me, for me,

02:51 - 24.807 for they're going to, I guess, investigate me for it.

02:51 - 26.743 And I could be disciplined.

02:51 - 29.746 And so in that instance,

02:51 - 34.050 within the totality we're looking at, this is protected activity.

02:51 - 39.055 And we found that their reasons were pretextual.

02:51 - 41.658 That's the first thing. We didn't credit it.

02:51 - 45.795 And then the hearing examiner did go on to say that he didn't find it

02:51 - 51.267 legitimate because, the section concerning investigations

02:51 - 56.572 is for the faculty member as a faculty member, their actions as a faculty member,

02:51 - 00.276 this was their action, her action as the president of the union.

02:52 - 04.580 Doctor Pagan in her in her

02:52 - 08.785 email to them, said, I have concerns with her actions

02:52 - 12.855 as the president of the union, so they can't rely on that section

02:52 - 17.660 to then, when it's supposed to be the actions as a faculty member

02:52 - 21.998 to then investigate her protected activity as a union president.

02:52 - 26.436 But I also previously said that section

02:52 - 29.739 if it were to apply, they could have done this informally.

02:52 - 32.575 They didn't have to have a full blown investigation.

02:52 - 36.879 They could have gone to the union president and discussed this and,

02:52 - 42.385 this all these issues could have been, couldn't didn't need to happen.

02:52 - 46.089 And the solicitation email,

02:52 - 49.559 soliciting complaints against the union is coercive

02:52 - 52.595 and there was no legitimate reason to do that. So.

02:52 - 56.165 So, the the case came to the board in 2016,

02:52 - 00.937 I believe the first, proposed decision in order came out in 2017.

02:53 - 06.843 In the summer of 2018, we remanded it, because the initially

02:53 - 10.213 the hearing examiner had determined that this wasn't protected activity.

02:53 - 14.317 But after review from the board, the board determined it was remanded it

02:53 - 19.088 back for for the hearing examiner to determine, whether this was coercive.

02:53 - 22.458 Unfortunately, Your Honor, it slipped through the cracks.

02:53 - 26.863 This doesn't normally happen, but in the interim,

02:53 - 30.833 our administrative assistant who deals with tracking cases

02:53 - 33.035 to make sure they don't remain dormant, had left.

02:53 - 37.240 We got a new secretary of the board who started creating new policies.

02:53 - 38.875 Covid hit.

02:53 - 43.246 And then we finally came up with a good tracking system.

02:53 - 44.580 But my my feeling,

02:53 - 48.584 that I'm just going to express is that during that period of time,

02:53 - 53.055 nobody was squawking about it unless I'm wrong.

02:53 - 55.925 You're correct. None of the parties contacted.

02:53 - 59.896 And that is why, when the board discovered this case, we did actually send a show

02:53 - 03.299 cause letter to ask whether the case needed

02:54 - 07.003 to continue to move forward or it could be closed out.

02:54 - 12.708 So my point is, if nobody cared that much about it for six years,

02:54 - 17.180 you know, how important is this?

02:54 - 19.949 Well, I won't I think that was a comment.

02:54 - 23.886 I know I was going to say I will actually allow, the attorney

02:54 - 25.388 for the it's not a comment.

02:54 - 26.022 It's a question.

02:54 - 29.158 Oh. Well, I would like to defer to okay.

02:54 - 30.026 For the union.

02:54 - 32.929 The board has a duty to process our cases.

02:54 - 34.597 You're well over your time. Yes.

02:54 - 37.600 Thank you, your honor, to to speak to.

02:54 - 45.074 Good afternoon, Your Honor.

02:54 - 47.410 To court. I am Jennifer Champion.

02:54 - 48.878 I come from the law office of stroke.

02:54 - 52.315 Often Cowden and I represent in this matter.

02:54 - 56.152 And I would say to this panel,

02:54 - 00.389 we're facing a national reckoning when it comes to appropriate

02:55 - 03.626 and constitutional reactions to protected speech.

02:55 - 04.727 When we disagree with it

02:55 - 07.463 now. And

02:55 - 11.267 to your point, Judge Wolff, I want to set the scene a little bit here.

02:55 - 14.737 The strike took place in 2016.

02:55 - 18.007 It was the first strike in a 50 year barred

02:55 - 21.043 collective bargaining agreement relationship.

02:55 - 24.146 The strike itself was infamous.

02:55 - 26.048 I will use that word.

02:55 - 27.717 It was bad for some people.

02:55 - 30.119 It was good for others.

02:55 - 34.357 The parties reached impasse on several terms and I wasn't going to back down.

02:55 - 38.361 Absence of strike was authorized by a Democratic vote

02:55 - 41.531 of all of the members across the state.

02:55 - 45.301 The strike was peaceful and it only lasted three days.

02:55 - 46.402 There was no violence.

02:55 - 49.138 There was no slashing of tires.

02:55 - 51.207 Members were still voting

02:55 - 55.711 on the successor CBA when this poster went up.

02:55 - 01.384 So contrary to what has been portrayed here, it wasn't that the dusted settle.

02:56 - 05.488 The last part of the collective bargaining process

02:56 - 08.925 is to ratify the agreement, and voting was still taking place.

02:56 - 13.229 You can see that in the in the email that was sent by the chapter president.

02:56 - 16.232 This was pre Janus.

02:56 - 19.435 No public employee had the ability to quit the union.

02:56 - 24.607 And historic election had just taken place in 2016.

02:56 - 27.476 This was pre pandemic.

02:56 - 30.179 It was pre Ukraine war.

02:56 - 32.682 It was before there were global

02:56 - 36.285 trends scrutinizing speech deemed as misinformation.

02:56 - 38.087 This was before Gaza.

02:56 - 41.324 Solidarity encampments and pro-Palestinian

02:56 - 44.760 protests appeared on college campuses.

02:56 - 49.365 This was before George Floyd, Breonna Taylor, Tyree Nichols.

02:56 - 50.733 How does that all tie in.

02:56 - 52.101 Yeah sorry.

02:56 - 55.104 How does all that tie in?

02:56 - 57.573 Because that's the context

02:56 - 00.876 in which these words, that list went up.

02:57 - 04.447 Since that time we have different

02:57 - 07.416 feelings about words.

02:57 - 10.486 I think generally as a country, we have,

02:57 - 13.489 you know, come to this place where

02:57 - 17.093 we have stigma and tension around

02:57 - 21.497 the freedom of speech and saying things that other people might not like.

02:57 - 23.733 I guess

02:57 - 26.736 the question is really, what did the word mean at the time?

02:57 - 30.106 And then the fact that there was a faculty member who was subject to

02:57 - 34.844 cyberbullying and that is your position under that the duty had it.

02:57 - 38.214 The university had a duty to investigate

02:57 - 43.419 faculty concerns, undermined by the fact that they, directed

02:57 - 46.756 the unit to remove the list before the investigation began.

02:57 - 52.361 That's that they have an entitlement to investigate, but an investigation.

02:57 - 54.196 I think we're conflating the

02:57 - 57.633 the right to investigate with the right to suppress speech.

02:57 - 00.770 So, yes, they could investigate,

02:58 - 04.740 but did they have to have the speech or the poster taken down? No.

02:58 - 08.978 They could have investigated the the elements of the complaint

02:58 - 12.014 without telling the union that they needed to take down their poster.

02:58 - 14.684 Were they supposed to wait

02:58 - 18.921 until something happened before they advised to take the poster?

02:58 - 21.257 Before they took the poster down?

02:58 - 24.760 They supposed to wait in that situation until something does happen.

02:58 - 30.366 Well, and whether this was peaceful this time to me is totally irrelevant.

02:58 - 36.539 It's a history of what has happened in the past, what can happen.

02:58 - 40.209 As I understand it, that was the basis for their actions.

02:58 - 43.212 They had no history of what could happen, your honor, in the

02:58 - 47.316 as you were earlier, alluding to things that happened in the country,

02:58 - 49.618 not just on the campus. Right.

02:58 - 53.923 But in dealing with you at the time that this happened, there weren't

02:58 - 58.761 those kinds of tensions and stigma around words that people don't like.

02:58 - 03.365 And if taking taking that a step further, Your Honor,

02:59 - 06.535 you mean defamation laws didn't exist at that time?

02:59 - 10.339 No no no no no no, I mean, like public tension about

02:59 - 13.876 saying things, having free speech rights.

02:59 - 16.178 I don't I don't think laws have changed.

02:59 - 17.646 I think attitudes have changed.

02:59 - 19.448 I thought this was a question about

02:59 - 23.285 the right to refrain from collective

02:59 - 26.288 bargaining activities and then being subject to

02:59 - 30.459 so public posting of one's name in a derogatory manner.

02:59 - 33.896 So those folks who didn't participate

02:59 - 36.899 in the strike,

02:59 - 39.969 have the right to not participate,

02:59 - 42.004 but they none of them

02:59 - 44.974 came forward with a grievance saying, I feel discrimination.

02:59 - 49.512 They came to the administration and said, this poster, I don't like this poster.

02:59 - 51.580 I don't like that the union was speaking.

02:59 - 55.084 They weren't saying my my neighbor across the hallway

02:59 - 58.320 has, threatened to kill my cat.

02:59 - 59.588 No, they don't have to.

02:59 - 03.159 I mean, like, okay, the audience doesn't determine

03:00 - 07.163 the, protected value of the speech.

03:00 - 10.766 The board looks at the conduct of the speaker

03:00 - 14.170 just to see if there's maliciousness, profanity,

03:00 - 17.306 gratuitous, opprobrium,

03:00 - 20.676 those kinds of things to determine whether or not the speech is protected.

03:00 - 24.780 They don't look at what,

03:00 - 28.117 They don't look at what could happen

03:00 - 31.086 or what might happen.

03:00 - 35.224 And the boundaries of protected

03:00 - 39.728 speech should continue to focus on the signs of malicious, violent,

03:00 - 44.767 profane, obnoxious, appropriate misconduct and not the subjective feelings

03:00 - 49.071 of intimidation or speculation of the audience.

03:00 - 52.741 So what might happen?

03:00 - 56.579 One can't suppress speech that's protected under the law

03:00 - 00.182 based on what might happen otherwise.

03:01 - 04.987 There's a you know, the audience determines what the protected.

03:01 - 06.121 The boundaries are protected.

03:01 - 08.757 So what do you want the court to do?

03:01 - 11.760 I want you to uphold the board's order, okay?

03:01 - 13.329 Because you're over your time.

03:01 - 15.631 So if there's anything else quickly.

03:01 - 17.366 All right.

03:01 - 20.369 Thank you very much.

03:01 - 27.309 I just want to address a couple of points,

03:01 - 30.679 that were raised by, counsel for the board.

03:01 - 32.548 I think it's just speculation to say.

03:01 - 34.516 Well, they should have done this, or they should have done that.

03:01 - 36.685 They should have had an informal conversation.

03:01 - 37.386 The mic, please.

03:01 - 38.354 I'm sorry that

03:01 - 42.758 that they should have had an informal conversation with the union president.

03:01 - 46.462 You know, they have the management has the right to manage

03:01 - 49.465 the administration in the university the way it sees fit.

03:01 - 52.601 And you have again,

03:01 - 56.105 very strong complaints, written complaints that are in the record

03:01 - 59.842 about that particular poster that's out in the hallway.

03:02 - 03.345 And, the, you know, the need to address that.

03:02 - 06.882 As soon as possible. Now,

03:02 - 11.053 you know, counsel said, well, if they were serious,

03:02 - 15.324 meaning the university about addressing the potential threatening nature

03:02 - 19.361 of what was on that posting, they should have told them to take

03:02 - 22.798 the posting down in the faculty office, and they didn't do that.

03:02 - 28.671 I tend to agree with that assessment, but I also think it's somewhat strange

03:02 - 34.743 that the board is saying that an argument now, it doesn't undermine or belief

03:02 - 39.014 that this was at least on its face, you know, you know, inviting

03:02 - 41.951 retaliation in the context of

03:02 - 44.853 what was happening on campus and this communication, again,

03:02 - 47.856 that came up, that was sent out by the union president.

03:02 - 51.060 It shows that they were trying to address the very specific,

03:02 - 54.897 communication that was the source of the complaint

03:02 - 57.766 that was in the hallway that was publicly exposed,

03:02 - 00.536 who left up in the faculty office or in the union?

03:03 - 01.537 In the union office?

03:03 - 03.138 I'm sorry, the union office and the APS,

03:03 - 06.108 which is right around the corner from where this poster is.

03:03 - 11.914 And again, the context of this matters in these cases that look at protected

03:03 - 15.351 speech about referring to strike breakers as scabs.

03:03 - 18.554 And I addressed this in my brief there, often in the context of a strike

03:03 - 21.890 that is occurring or in grievance activity

03:03 - 25.060 or things that the union is affirmatively doing on behalf of the membership.

03:03 - 28.530 This is six weeks after the strike is over,

03:03 - 31.767 and everybody's back to work, and then this is put out there.

03:03 - 37.006 It's I think can be looked at differently because of that context

03:03 - 41.510 as to whether or not there's legitimate, protected activity by the union

03:03 - 45.881 when all that the record in this case says is that their membership wanted to know

03:03 - 47.216 who went on strike,

03:03 - 50.652 not whether they're adjunct, certainly not whether they're infamous or not.

03:03 - 53.022 That's all I have.

03:03 - 54.256 Unless there are any questions for the court.

03:03 - 58.327 And of course, we'd ask that the, court reverse the board with the direction to

03:03 - 59.561 have the charge dismissed.

03:04 - 01.096 All right.

03:04 - 03.432 Thank you very much. Good job on both sides.

03:04 - 04.633 Thank you.

03:04 - 08.437 And our last case for today, number 85,

03:04 - 12.741 Clean Air Council, at all versus

03:04 - 16.045 come of Pennsylvania General Assembly.

03:04 - 21.417 Department of Environmental protection.

03:04 - 26.955 In our last case, petitioner of the Clean Air Council,

03:04 - 30.392 earthworks, citizens for Pennsylvania's Future Protect, PGP

03:04 - 34.329 and the Sierra Club filed a petition for review of the nature of an action

03:04 - 37.833 for declaratory relief in this court original jurisdiction,

03:04 - 43.138 which challenges the constitutionality of section two of act 96,

03:04 - 47.409 which amended the bonding requirements for conventional oil and gas wells.

03:04 - 52.581 Petitioners maintain that Pennsylvania's current bonding requirements for abandoned

03:04 - 54.983 oil and gas wells, which number in the thousands,

03:04 - 57.786 are far below the actual cost of reclamation

03:04 - 00.789 and do not provide timely remediation of such wells.

03:05 - 05.994 Petitioners assert that these requirements violate article one, section 27

03:05 - 09.832 of the Pennsylvania Constitution, known as the Environmental Rights Amendment,

03:05 - 12.000 which imposes trustee obligations

03:05 - 14.970 on the Commonwealth and creates a right to a clean environment.

03:05 - 18.507 The petitioners further allege that in 2022,

03:05 - 22.211 the Pennsylvania legislature passed House Bill 2644,

03:05 - 25.447 which in its ultimate version includes section two

03:05 - 28.484 that revokes the authority of the Environmental Quality Board

03:05 - 30.953 or the Department of Environmental Protection

03:05 - 34.423 to adjust the bond amounts for conventional wells for ten years.

03:05 - 39.328 Thereby freezing the bond amount at its current level of $2,500 per well.

03:05 - 42.297 The bill applied no such restriction

03:05 - 45.834 to unconventional wells, sometimes referred to as fracked wells.

03:05 - 50.939 Petitioners further state that prior to the passage of section two of act 96,

03:05 - 54.343 the board was authorized to adjust bond amounts for all wells,

03:05 - 55.677 including conventional wells.

03:05 - 58.313 Every two years, to reflect the projected costs

03:05 - 01.316 to the Commonwealth of plugging the wells.

03:06 - 04.920 The Commonwealth respondents argued that petitioners have not stated

03:06 - 08.991 a viable cause of action against it, and that the petitioners ultimate request

03:06 - 12.427 for relief, which was requiring the Commonwealth to allow the board

03:06 - 15.430 and DEP to adjust the bond amounts for conventional wells,

03:06 - 18.767 is one of affirmative action protected by sovereign immunity.

03:06 - 23.005 Respondents assert that although sovereign immunity does not borrow

03:06 - 24.139 a declaratory judgment,

03:06 - 27.543 action, or injunction seeking to prohibit state parties from acting,

03:06 - 32.681 the immunity does apply to an action seeking to compel state parties to act.

03:06 - 35.584 With that, let's listen to the arguments.

03:06 - 42.558 Good afternoon.

03:06 - 44.426 Your honors may please the court.

03:06 - 45.661 My name is Matthew Woolford.

03:06 - 49.264 Sorry about the raspy voice and sitting back there without water for a while.

03:06 - 53.268 My name is Matthew Wolfe and I represent what's been referred to

03:06 - 57.306 as the Association Interveners, which consists of Paga,

03:06 - 00.676 PJC and Pip.

03:07 - 03.212 I would like to reserve five minutes for rebuttal, please.

03:07 - 04.379 Five minutes.

03:07 - 07.382 You have it.

03:07 - 10.185 Okay.

03:07 - 10.919 Yes, you have it.

03:07 - 15.390 So I was asked to brief two matters, and so I'll deal with the first one.

03:07 - 18.126 And sort of a,

03:07 - 19.294 cursory way.

03:07 - 21.730 When

03:07 - 23.398 when the court,

03:07 - 26.969 allowed the petition for intervention to go forward,

03:07 - 31.707 they accepted the, association intervenors to come in to the case.

03:07 - 32.708 They didn't.

03:07 - 36.044 Also at the same time, docket the,

03:07 - 40.215 preliminary objections that I had attached to the to the application interview.

03:07 - 45.687 The petitioners viewed the order accepting

03:07 - 50.225 association intervenors into the case as the day of doctoring.

03:07 - 51.860 Which was fine.

03:07 - 55.664 The docket didn't actually say that, but, I had no problem with that.

03:07 - 01.236 What I did have a problem with was there were six pages of legal argument

03:08 - 06.108 at the front end of their peers, and I didn't really have

03:08 - 09.578 a mechanism to address that because there hadn't been a briefing order.

03:08 - 12.614 So I filed post to there

03:08 - 14.950 to their answer to strike

03:08 - 17.686 that legal argument.

03:08 - 21.490 It's been largely cured because the court order briefing.

03:08 - 23.125 And so that's fine.

03:08 - 26.895 But I because the court has asked this matter to be brief.

03:08 - 29.598 I wanted to address it.

03:08 - 32.367 I don't think the court should tolerate that sort of thing.

03:08 - 36.204 And I think maybe an admonishment and striking the six

03:08 - 40.309 pages of improper legal argument is really all we need to do at this point.

03:08 - 45.414 Okay.

03:08 - 46.081 Moving on.

03:08 - 49.918 The before I get to the first place, obviously the most important.

03:08 - 51.920 Did you want to file an application?

03:08 - 56.058 I mean, it seems like you're making an application orally to the court.

03:08 - 58.360 Did you want to file a written application?

03:08 - 59.828 For what the.

03:08 - 02.397 Have the legal argument struck going for?

03:09 - 04.199 I think that was in my P.O..

03:09 - 05.467 Okay, but it wasn't.

03:09 - 09.104 We actually in the briefs we talked about multiple different types of remedies.

03:09 - 12.107 One was strike the entire answer.

03:09 - 15.344 But the court subsequently ordered briefing.

03:09 - 17.746 So what would be the point of that?

03:09 - 20.048 So I but it shouldn't be let go.

03:09 - 23.785 We don't want to encourage people to sneak in six pages of legal argument

03:09 - 27.422 in consecutively numbered paragraphs that aren't responsive

03:09 - 29.257 to the consecutively numbered paragraph.

03:09 - 33.128 So I think maybe a footnote, it says, counselor admonished for doing,

03:09 - 35.530 you know, something like that. We don't need to.

03:09 - 37.065 I don't want to waste any more time with it.

03:09 - 39.334 I think enough time has been wasted with it already. Thank you.

03:09 - 41.636 Before I get

03:09 - 44.639 to the first Po, which I think is the most important one.

03:09 - 48.510 I just want to talk about the backdrop of this

03:09 - 51.513 because we didn't really get into what happens in cases like this.

03:09 - 54.916 We start going down these legal rabbit holes about you know,

03:09 - 58.520 is this an as applied or is this a facial and that sort of thing?

03:09 - 02.891 The backdrop of this is that Pennsylvania has a legacy, well, problem

03:10 - 05.961 with, you know, 1859 is

03:10 - 09.398 when Colonel Drake started, commercial production of oil.

03:10 - 12.868 We have something north of 200,000

03:10 - 16.104 abandoned wells out there that aren't going to get plucked.

03:10 - 19.174 And so the DEP struggles with this.

03:10 - 20.842 The General Assembly struggles with this.

03:10 - 23.845 And that is the backdrop for act 96.

03:10 - 26.648 So what act 96 was about?

03:10 - 29.651 It actually was about two different things.

03:10 - 33.155 The Infrastructure Investment and Jobs Act or Idea

03:10 - 38.293 came out, and the DEP needed a mechanism to accept those federal funds

03:10 - 42.164 in order to plug wells now in the deep place wells.

03:10 - 44.533 They estimated $68,000.

03:10 - 47.536 And all of this information, by the way, is in my application to intervene.

03:10 - 50.972 And I would encourage the court to go back and look at that to get

03:10 - 51.706 the history of this.

03:10 - 55.710 But when when the government does it, it's always more expensive.

03:10 - 58.847 And so one of the things that the General Assembly thought would be

03:10 - 02.651 helpful is to have this subchapter C program

03:11 - 06.922 where they would actually enlist the help of the conventional oil

03:11 - 10.625 and gas industry to go plug wells, because they can do it much more cheaply.

03:11 - 15.697 Section one of act 96 was about the idea, part

03:11 - 21.403 section two of act 96, which is being objected to, was about

03:11 - 26.208 trying to get the conventional oil and gas industry to go plug wells inexpensively.

03:11 - 29.444 It was a grant program.

03:11 - 32.781 So one of the things that the General Assembly was mindful

03:11 - 35.784 of was this rulemaking petition that's at issue in this case,

03:11 - 38.887 and they were also mindful of if if all

03:11 - 41.456 if all well,

03:11 - 46.094 bonds go from $2500 to $38,000 is being requested,

03:11 - 50.265 there's not going to be a conventional oil and gas industry to plug the wells

03:11 - 54.002 under the subchapter C program, because they just can't afford it.

03:11 - 57.339 So the General Assembly decided

03:11 - 01.243 that they didn't want interference from the DEP

03:12 - 04.813 or the Eqb, or a private party bringing in private rulemaking,

03:12 - 07.849 because if if the industry

03:12 - 10.852 goes out of business, they can't pursue subchapter C.

03:12 - 13.922 That was what it was about.

03:12 - 17.158 So yes, in terms of what was proceeding

03:12 - 20.161 at the time that act 96 was enacted,

03:12 - 24.099 it was a, request for rulemaking.

03:12 - 24.432 Correct.

03:12 - 28.603 Because the two year time period was in,

03:12 - 31.873 and then act 96 extended that to ten years.

03:12 - 35.610 Yes. What what was what was done is

03:12 - 38.580 not only was they addressed bonds,

03:12 - 42.250 so they said that the $2,500 stays the same for individual bonds.

03:12 - 42.984 Right.

03:12 - 45.987 However, the $25,000 blanket bond,

03:12 - 49.424 which those replenish, by the way, I don't know if people were aware of that.

03:12 - 52.827 So if you take a $25,000 bond to go plug a well,

03:12 - 56.364 you can require the owner operator to replenish it.

03:12 - 59.768 So it's like an endless supply if you handle it correctly.

03:12 - 04.105 So petition for rulemaking was pending at the time that act 96 was enacted.

03:13 - 10.045 And then thereafter, it was that that particular petition for rulemaking

03:13 - 14.182 was denied on the basis that there they no longer had the authority

03:13 - 17.852 to, do what was being requested.

03:13 - 20.922 Is that considered a final order of the tribunal

03:13 - 23.925 and is that something that needed to be appealed?

03:13 - 25.460 For what is. Yes.

03:13 - 26.928 And that is part number one.

03:13 - 28.830 So we can move on from the background.

03:13 - 30.231 Now the court understands it.

03:13 - 31.933 So it was an interesting case.

03:13 - 33.835 I mean, this ship sailed already.

03:13 - 38.773 I call it Pennsylvania Department of Aging in my brief.

03:13 - 42.577 It's, Lynn Burg, I think is how this court, deals with it.

03:13 - 48.283 I realized after I filed my opening brief that this case has come up a lot.

03:13 - 50.452 With respect to the Commonwealth Court,

03:13 - 54.289 one of the cases in particular I'll focus on, on that is the funk case.

03:13 - 57.959 There were actually two funk cases that I cited in my briefs.

03:13 - 02.797 One was from 2013, which deals with as applied versus spatial challenges.

03:14 - 04.599 Not really relevant here.

03:14 - 07.602 The other one, deals with,

03:14 - 10.372 specifically what happened here.

03:14 - 13.642 In that case, the DEP, they filed

03:14 - 17.145 PIOs on the basis that, funk

03:14 - 20.315 was precluded

03:14 - 23.318 from bringing the they wanted the case dismissed

03:14 - 27.522 because they should have gone to the Eqb and sought rulemaking,

03:14 - 29.257 but not that they

03:14 - 32.260 did, but that they should have gone.

03:14 - 36.297 In response to that, here's what this court said.

03:14 - 40.035 Whether we have jurisdiction over the instant action, therefore,

03:14 - 43.505 it turns on whether we would have appellate jurisdiction over the matter.

03:14 - 46.908 Well, we agree that we would have appellate jurisdiction

03:14 - 50.645 over a final order of eqb denying a rulemaking petition

03:14 - 54.182 pursuant to section 1928 of the Administrative Code.

03:14 - 56.851 And then and it goes on.

03:14 - 59.020 So this court's already made this decision.

03:14 - 02.290 Now, I understand that the court box not bound, but there wasn't really

03:15 - 06.895 a merits determination made on any, issue

03:15 - 12.434 that was filed as part of the rulemaking because it was authority that was lacking.

03:15 - 15.503 And so how how do we say that a constitu

03:15 - 19.340 tional issue is not able to be raised now

03:15 - 23.978 before this court, when in reality could it have even been raised on appeal?

03:15 - 25.814 Were before B QB?

03:15 - 26.047 Yeah.

03:15 - 29.250 Well, I mean, you have a problem with the Department of Aging

03:15 - 32.420 or the Lindbergh case that that case is a Supreme Court case,

03:15 - 36.357 which you're bound by, that says that once appellate jurisdiction

03:15 - 40.662 attaches, that's the exclusive means of bringing the case forward as an agency.

03:15 - 43.665 Would they've been able to rule on the constitutional question?

03:15 - 44.866 It doesn't matter.

03:15 - 46.067 How does it not matter?

03:15 - 49.938 Because as my my opposition

03:15 - 52.941 pointed out, both the DEP and the petitioners

03:15 - 57.212 that facial constitutional challenges are preserved as a matter of law

03:15 - 00.849 for the appellate court and for the original court.

03:16 - 03.384 It doesn't need to be preserved for the original jurisdiction.

03:16 - 06.054 Court is preserved for the appellate court.

03:16 - 09.724 So all they had to do was file this appeal within the 30 day time frame.

03:16 - 11.626 But they didn't.

03:16 - 14.262 But what were they appealing from

03:16 - 16.297 the denial Dana Kennedy's putting up?

03:16 - 17.932 They didn't make any determination.

03:16 - 21.269 All they did was say, we don't have authority to act now.

03:16 - 22.904 They actually denied the petition.

03:16 - 25.273 That's because they didn't have authority to act.

03:16 - 28.543 So they would have been appealing that determination.

03:16 - 31.379 They could have approached this in a number of different ways.

03:16 - 34.048 They could have stayed the action in front of the B

03:16 - 36.317 and then brought an original jurisdiction action.

03:16 - 38.686 That's what all these exhaustion cases deal with.

03:16 - 41.156 You don't have to wait until you get a decision.

03:16 - 42.824 They could have done that.

03:16 - 45.794 They could have looked at the recommendation that the DEP had

03:16 - 49.164 and said, well, we're going to appeal that to the Environmental Hearing Board.

03:16 - 51.432 They didn't do any of those things.

03:16 - 54.402 What they did is they forced the eqb through the paces.

03:16 - 58.573 They waited for a decision, which was the denial.

03:16 - 01.743 That's that's an agency action.

03:17 - 04.312 It's a final agency action.

03:17 - 08.950 And then after the 30 days, 13 more days lapsed,

03:17 - 11.986 and then they file an original jurisdiction action

03:17 - 14.989 that's contrary to what the Supreme Court says you can do

03:17 - 17.992 once appellate jurisdiction attaches.

03:17 - 20.461 That's the exclusive means.

03:17 - 23.464 And this it's a jurisdictional issue for this court.

03:17 - 25.633 You can't excuse it.

03:17 - 28.503 It's jurisdictional. All right.

03:17 - 28.903 Thank you.

03:17 - 29.204 Thank you.

03:17 - 32.207 And you do have free time.

03:17 - 35.877 Good afternoon.

03:17 - 36.778 Good afternoon.

03:17 - 38.179 My name is Emma Bass.

03:17 - 40.181 I represent the petitioners, clean air counsel,

03:17 - 41.983 earthworks, citizens for Pennsylvania's Future.

03:17 - 44.452 Protect beauty, and Sierra Club.

03:17 - 45.954 I will be taking ten minutes.

03:17 - 49.224 And attorney Holman for the Department of Environmental Protection

03:17 - 51.926 will be taking five, ten and five. Thank you.

03:17 - 56.231 May it please the court?

03:17 - 59.767 Briefly, on the first matter, we would refer the court to our brief

03:18 - 03.204 on that kind of outstanding peo.

03:18 - 08.376 And I'd like to really get into the meat of today what's before the court today?

03:18 - 11.946 And that is a straightforward question and answer.

03:18 - 15.650 Does this court have the jurisdiction to hear a case brought

03:18 - 19.420 under the Declaratory Judgment Act, where the central question is

03:18 - 22.423 a facial constitutional challenge to a statute?

03:18 - 25.526 And Pennsylvania courts have consistently found that the answer is yes.

03:18 - 31.132 The, industry intervenors or associate Intervenors

03:18 - 34.135 preliminary objections rely on circular fallacies

03:18 - 37.705 and mischaracterizations of our statutory challenge.

03:18 - 41.042 The Cartwright Judgments Act petition.

03:18 - 44.045 And a mischaracterization of the remedy.

03:18 - 48.816 Why wasn't an appeal taken of the order from the tribunal originally?

03:18 - 50.752 Well, that gets into it.

03:18 - 52.620 That's a question of litigation strategy, Your Honor.

03:18 - 55.790 But I think the more important thing here is that the Declaratory Judgments

03:18 - 00.962 Act grants this court broad, original jurisdiction to hear actions.

03:19 - 03.298 It's also very unclear.

03:19 - 06.801 I think the Eqb did not would not have the authority

03:19 - 11.472 or jurisdiction to hear a constitutional challenge to a statute.

03:19 - 14.442 The Eqb doesn't have the ability to make decisions

03:19 - 17.512 on constitutional questions or statutes.

03:19 - 22.483 This challenge is not an appeal, no matter how vigorously

03:19 - 25.687 my friends on the other side insist that it is.

03:19 - 28.222 It is a direct facial constitutional challenge,

03:19 - 32.460 and they have not really presented any evidence or support to say that it's not

03:19 - 37.465 the plain text of the Declaratory Judgments Act, which is the thing

03:19 - 42.470 the action that governs this, statutory challenge grants broad jurisdiction.

03:19 - 46.874 And while it is particularly appropriate

03:19 - 51.913 for actions like this one, it's by no means limited to that.

03:19 - 54.115 The range is broad.

03:19 - 57.218 This court has even recognized that it can be appropriate to do

03:19 - 00.221 a challenge of the Department of Environmental Protections

03:20 - 04.125 permitting process itself without a, challenge

03:20 - 07.228 to facial validity of a statute, as it found in

03:20 - 10.765 Pennsylvania Independent Oil and Gas Association versus Commonwealth.

03:20 - 12.066 In 2015.

03:20 - 14.635 The Intervenors.

03:20 - 18.306 Yes, understand the nature of the statutory challenge.

03:20 - 21.409 They wrote that as a direct result of the EPA's

03:20 - 24.712 decision, petitioners commenced this action.

03:20 - 27.015 But that's not correct.

03:20 - 30.184 This action was commenced because of an action of the General Assembly

03:20 - 31.853 and within the statute

03:20 - 35.356 that the General Assembly passed, not because of what the Eqb did.

03:20 - 39.594 I think it's helpful and illustrative to consider the statutory challenge

03:20 - 42.897 without the, underlying

03:20 - 45.900 kind of eqb rulemaking petition.

03:20 - 50.671 The rulemaking petition is background information, and many of the facts

03:20 - 54.742 that are there will be considered by the court, by this court on the merits.

03:20 - 57.178 And many of the shared facts are part of that.

03:20 - 03.284 But it's not a procedurally, not procedurally part of this case. The

03:21 - 05.953 sorry, the Declaratory

03:21 - 08.923 Judgment Act is its own action,

03:21 - 14.062 and it's key for this court to recognize that a rulemaking and a regulation are two

03:21 - 19.067 separate actions taken under different a rule making a regulation excuse me.

03:21 - 19.600 Sorry. Yes.

03:21 - 22.503 Essentially, you want us to you're challenging.

03:21 - 25.506 Section 3225 A1

03:21 - 28.409 three. Yes.

03:21 - 29.610 Okay. Well, you call the section.

03:21 - 31.712 So what's going to be the impact on this?

03:21 - 36.417 I know you're not asking for, us to direct HB to do anything,

03:21 - 39.554 but what would be the,

03:21 - 44.058 impact of declaring that unconstitutional wouldn't eqb

03:21 - 48.329 have to stop or be ordered to stop

03:21 - 49.664 at that point?

03:21 - 53.134 The ECB's authority to set well bonding amounts would be.

03:21 - 55.369 Can you speaking to the mic, please? Yes.

03:21 - 56.437 My apologies, Your Honor.

03:21 - 00.508 At that point, the ECB's authority to set while bonding amounts would be restored.

03:22 - 02.210 So the previous status quo

03:22 - 05.246 from before the General Assembly took its action would be restored.

03:22 - 09.684 And at that point, the Eqb could take up a rulemaking either

03:22 - 13.588 of their own accord on recommendation of the DP, from a petition,

03:22 - 18.893 from a private party, and take up any constitutionally appropriate action

03:22 - 24.265 from their, The existence of an alternative remedy

03:22 - 26.834 also does not foreclose the ability

03:22 - 29.804 of a party to bring a declaratory Judgment Act petition.

03:22 - 33.040 That's there in the text of the statute.

03:22 - 37.044 And it's also consistent with, Pennsylvania courts holdings,

03:22 - 40.581 as in PJ's versus Pennsylvania state ethics Commission,

03:22 - 43.651 where this court recognized that the challenges

03:22 - 49.390 that the exceptions in section 7541 CE are inapplicable were challenges,

03:22 - 52.627 particularly constitutional challenges are set

03:22 - 55.730 forth questioning the facial validity of a statute itself.

03:22 - 00.301 This court didn't record limit that holding to only

03:23 - 03.337 the exceptions is a 7540 1C2.

03:23 - 06.073 Rather,

03:23 - 09.210 as this court recognized in North Canton enterprises,

03:23 - 13.381 the exceptions in 70 5C3 are applicable

03:23 - 17.351 where ancillary proceedings involving the same parties can resolve

03:23 - 20.588 those questions that are raised in the Declaratory Judgments Act.

03:23 - 24.225 Action, as I mentioned before, to judge can

03:23 - 28.429 and the Eqb would not have been able to resolve these questions.

03:23 - 32.833 Even if they had been brought up, the Eqb would not be able to answer them,

03:23 - 35.303 and we would end up back in front of this court.

03:23 - 38.873 Either way, just with additional time and resources spent.

03:23 - 42.343 And what is the issue that, that's been raised with regard

03:23 - 45.713 to the infringement upon DPS enforcement discretion?

03:23 - 50.318 This our our amended petition only asks this court

03:23 - 54.722 to find the language of section two of act 96 unconstitutional.

03:23 - 58.292 It does not ask this court to direct the DEP

03:23 - 01.829 or Eqb to take any specific action from their.

03:24 - 05.366 So, Eqb

03:24 - 09.070 can take other action within its own discretion.

03:24 - 10.071 Finding something there.

03:24 - 13.107 I think my clients would have their opinions on what that would be.

03:24 - 16.277 Other parties might have their opinions on what that would be,

03:24 - 19.580 and that will be left to the sound discretion of the Eqb.

03:24 - 22.583 And, hopefully we'll not go further from that.

03:24 - 27.121 The I would also like to address that.

03:24 - 31.993 One of the objections about this being on appeal is that

03:24 - 35.630 and as this court wrote in Parker versus Commonwealth,

03:24 - 38.699 it is clear that the purpose I think we need to take a step back.

03:24 - 42.703 The purpose of 7541 C3 is to prevent

03:24 - 46.374 the use of a declaratory judgment action as a vehicle for collateral,

03:24 - 49.443 attacking the decision of an administrative tribunal.

03:24 - 52.013 That's not what we have here.

03:24 - 54.248 My clients are not collateral.

03:24 - 57.251 Attacking the decision of an administrative tribunal.

03:24 - 01.422 They're doing a facial constitutional challenge to a statute,

03:25 - 04.659 and they're not trying to do a runaround around

03:25 - 07.662 any kind of procedural rule that would have barred that

03:25 - 10.164 the Eqb would not have been able to make a decision on that.

03:25 - 14.135 But even if they, even if it had been addressed, that's not what

03:25 - 17.204 there's not any kind of shady business happening here.

03:25 - 18.706 And the

03:25 - 21.876 ECB's decision is also not a final order.

03:25 - 24.879 It doesn't have the hallmarks of a final order.

03:25 - 26.714 There were no adverse parties.

03:25 - 30.318 The Eqb, as this court recognized the concerned citizens

03:25 - 33.321 versus of Chestnut Hill Township, is a quasi

03:25 - 38.592 a quasi legislative policymaking body, is not an adjudicatory body,

03:25 - 41.762 but an order of that tribunal would have been appealable,

03:25 - 45.666 I think, for a question like this,

03:25 - 50.237 the tribunal would not have been able to make a decision.

03:25 - 53.207 But generally speaking,

03:25 - 55.409 I think it's a fact specific inquiry, Your Honor,

03:25 - 59.814 depending on the nature of the decision, that this court has generally held

03:25 - 03.851 that rule makings from the eqb are not appealable orders,

03:26 - 05.353 and that's was one of the holdings

03:26 - 09.223 of concerned citizens across a judicial adjudication would be

03:26 - 11.792 a quasi

03:26 - 15.563 judicial adjudication, would be, I think if the

03:26 - 19.333 if there had been the hallmarks of a quasi

03:26 - 22.169 judicial adjudication, then it might be an appealable order.

03:26 - 24.372 But that's not what we have here.

03:26 - 27.508 There were no adverse parties or any of those other kind of traditional hallmarks.

03:26 - 32.813 There a second, the second preliminary objection

03:26 - 36.450 really rests on that first argument that this is an appeal.

03:26 - 39.854 But the declaratory judgments Act as a separate procedure,

03:26 - 42.623 preservation of issues is unnecessary and waiver

03:26 - 45.626 does not apply.

03:26 - 49.797 I will, only briefly address the third preliminary objection,

03:26 - 50.798 because I know my colleagues

03:26 - 55.136 at the department have some notes, but I would ask this court to look at

03:26 - 59.607 what the petition actually says, not at what the Intervenors claim is there.

03:27 - 02.743 The document speaks for itself.

03:27 - 06.547 As I said, all we ask is that this court restore the previous status quo

03:27 - 11.452 and allow the Eqb to take constitutionally appropriate action.

03:27 - 16.357 In closing.

03:27 - 19.727 Lost my panels.

03:27 - 24.565 In closing, what is before this court today is also

03:27 - 28.536 not a question of whether the underlying statutory challenge should succeed.

03:27 - 31.305 The merits are not here today.

03:27 - 33.941 It's whether this court must hear the case.

03:27 - 35.743 And indeed it must.

03:27 - 38.946 Our Supreme Court underscored this last year when it wrote an Ivy Hill

03:27 - 41.015 congregation of Jehovah's Witnesses

03:27 - 43.250 versus Commonwealth Department of Human Services.

03:27 - 47.054 Quote, while the grant or denial of declaratory

03:27 - 50.858 relief is a discretionary matter, the exercise of jurisdiction

03:27 - 53.861 over a declaratory judgment petition is not.

03:27 - 55.663 Thank you very much.

03:27 - 57.131 Thank you very much.

03:27 - 58.032 Sorry. No further questions.

03:27 - 01.035 I'll pass. Yes.

03:28 - 18.786 Good afternoon.

03:28 - 20.354 Good afternoon. May it please the court.

03:28 - 23.924 My name is Michael Hileman from the Governor's Office of General Counsel,

03:28 - 27.828 and I'm here representing the Department of Environmental Protection, DEP,

03:28 - 31.599 the Environmental Quality Board, the Eqb and Jessica Shirley

03:28 - 35.569 in her roles as chair of the Eqb and secretary of DEP.

03:28 - 39.240 Well, now, you did not file, answers, did you?

03:28 - 41.575 And you are you filed answers, but no briefs.

03:28 - 43.911 Your honor, we filed a brief.

03:28 - 46.914 In this matter, we did not find on the pose.

03:28 - 49.416 We thought a brief in response to the post.

03:28 - 51.685 That's correct. Okay.

03:28 - 54.121 May continue. Yes. Go ahead.

03:28 - 58.459 The question these people ask is petitioners issue in the right place?

03:28 - 59.994 And the answer is yes.

03:28 - 03.697 This court has subject matter jurisdiction under the declaratory judgment Act

03:29 - 07.535 to entertain this challenge to the constitutionality of section

03:29 - 10.137 two of act 96.

03:29 - 12.439 This case, intervenors

03:29 - 16.343 incorrectly assert that the amended petition challenges the prior

03:29 - 19.346 denial of the Environmental Quality Board of the rulemaking.

03:29 - 22.283 It challenges the constitutionality of this statute.

03:29 - 26.420 Similarly, Intervenors incorrectly rely upon

03:29 - 29.690 divest this court's jurisdiction under the declaratory Judgments

03:29 - 34.862 Act, relying upon that limited exception in section 7541 C3

03:29 - 37.898 for appeals of an order of a tribunal.

03:29 - 40.734 This is a challenge to the constitutionality of the statute,

03:29 - 43.971 not to the tribunal's order, not to the Eqb.

03:29 - 48.475 They have admitted as much in paragraph 32 of the amended petition.

03:29 - 52.880 Now, it wasn't clear because, in the pose,

03:29 - 56.116 the Intervenors had said all along that this court didn't

03:29 - 58.719 have subject matter jurisdiction, but it didn't say why.

03:29 - 01.722 We didn't really say it until the reply brief.

03:30 - 04.024 And in their reply brief, they really dial down

03:30 - 07.861 on that section 7075, 41 C3,

03:30 - 11.265 which is not applicable.

03:30 - 14.268 Now, this court, this already addressed this question.

03:30 - 18.238 This court addressed this question almost 40 years ago

03:30 - 22.242 in the case of Parker versus Department of Labor and Industry.

03:30 - 25.846 540 Atlantic second

03:30 - 28.849 313 from 1988.

03:30 - 32.219 This case is not cited in our brief because again, the basis

03:30 - 37.124 wasn't, didn't was it wasn't expressed until the reply brief.

03:30 - 39.760 I do have copies of the case for the court.

03:30 - 42.763 Parker is virtually on all fours with this case.

03:30 - 45.499 I can take a few minutes and talk about that.

03:30 - 49.703 And why the result here that this court has jurisdiction to entertain

03:30 - 50.738 the territory? Judgment.

03:30 - 54.208 Relief of declaring the statute unconstitutional should continue.

03:30 - 59.146 In Parker, certain persons apply for unemployment compensation benefits.

03:30 - 03.350 They were denied those benefits by the Unemployment Compensation Board,

03:31 - 04.284 and the board

03:31 - 07.688 relied upon a particular section in the unemployment compensation law.

03:31 - 11.925 Rather than challenging the board's decision,

03:31 - 14.962 those persons and others filed a petition for review in this court.

03:31 - 18.432 That petition, under the Declaratory judgments Act,

03:31 - 21.568 the petitioners asked the court to declare that section of the Unemployment

03:31 - 24.571 compensation law unconstitutional.

03:31 - 28.142 Now the the petitioner or the respondent

03:31 - 31.812 in that case in Parker filed pulmonary objections and they said

03:31 - 35.549 this is nothing more than a collateral attack on the board's order.

03:31 - 38.052 This case should be dismissed.

03:31 - 39.853 This court said no.

03:31 - 42.189 This court looked at the claim and said what

03:31 - 45.192 the petitioners are asking for is prospective relief

03:31 - 49.697 to declare that section of the statute unconstitutional going forward,

03:31 - 55.202 affecting future claims, not prior claims, not their own claims.

03:31 - 57.604 Therefore, it's not a challenge to the claims.

03:31 - 00.240 It's not a challenge to the board's decision.

03:32 - 01.942 It's a challenge to the statute.

03:32 - 05.446 That's the same thing we have here.

03:32 - 10.217 Here, the petitioners are challenging the section to the constitutionality.

03:32 - 13.587 They seek prospective relief that would affect things in the future.

03:32 - 17.891 As I said, they admit in paragraph 32 that if they win, if this court gives them

03:32 - 21.562 the relief, they would need to go back to the cube with a new rulemaking petition.

03:32 - 24.598 They're all petition is done.

03:32 - 26.500 So they're in the same in the same posture,

03:32 - 29.503 the same case, and the same result should occur here.

03:32 - 33.006 This court has subject matter jurisdiction to entertain,

03:32 - 36.376 this petition going forward.

03:32 - 39.947 I would rest on our brief for any other points,

03:32 - 43.350 and I be happy to entertain any questions the court might have for me at this time.

03:32 - 48.522 It looks like there aren't any, so thank you very much.

03:32 - 49.757 If that's all, I'll sum up

03:32 - 54.328 and just say that this court has subject matter jurisdiction to entertain this,

03:32 - 58.465 this this petition challenging section two of act 96.

03:32 - 01.835 We ask the court to deny the preliminary objections from Intervenors.

03:33 - 04.171 Thank you, thank you, thank you.

03:33 - 08.142 You have rebuttal.

03:33 - 11.712 Thank you very much.

03:33 - 15.983 I'm going to just deal with a few of the issues that came up.

03:33 - 19.153 The first one, is the fact that was raised

03:33 - 22.389 as the DEP didn't actually file an answer,

03:33 - 26.260 to, to, the pros.

03:33 - 29.930 And so all the affirmative fact that were in those posts

03:33 - 33.267 from the DEP standpoint are admitted

03:33 - 36.303 under, 1029 B

03:33 - 39.907 that's Pennsylvania rule, civil procedure.

03:33 - 41.475 What I find interesting about

03:33 - 44.545 this entire matter, I've been practicing law for 39 years.

03:33 - 47.548 I used to be a lawyer with the Dpos Regional Council.

03:33 - 52.286 I've never seen a defendant not want to get dismissed from a case until today.

03:33 - 55.889 I'm not sure why the DEP filed a brief.

03:33 - 57.825 I'm not sure why they don't want this case to end.

03:33 - 59.159 They're a defendant.

03:33 - 01.028 But for some reason, here we are.

03:34 - 03.197 As I said

03:34 - 06.400 before, in the phone case, the DEP actually filed preliminary

03:34 - 10.404 objections because they said that the Eqb should have engaged in rulemaking.

03:34 - 13.674 And this court said, well,

03:34 - 16.577 whether or not they should have that's not what this case is about.

03:34 - 19.213 And they wouldn't let those posts go forward.

03:34 - 21.381 They overruled appeals here.

03:34 - 24.384 We actually have the case that they were arguing

03:34 - 26.887 this was in front of the Eqb.

03:34 - 29.890 There was a case and it was denied.

03:34 - 32.726 And the petitioners didn't need to allow that to happen.

03:34 - 33.660 They could have withdrawn it.

03:34 - 36.363 They could have said, hey, you know, we don't have the authority to do this.

03:34 - 36.630 Okay.

03:34 - 39.766 We agree they could have appealed that to the EAB.

03:34 - 40.801 They didn't do any of those things.

03:34 - 43.804 Instead, they put the Eqb through their paces.

03:34 - 46.139 They waited for a denial.

03:34 - 48.809 And then they were 13 days late on filing an appeal.

03:34 - 52.546 And the argument that seems to be riding through all of this is there's

03:34 - 55.549 there's a presumption that the only way

03:34 - 58.752 to do a facial challenge to a constitution

03:34 - 02.055 is to bring a matter before this court in its original jurisdiction.

03:35 - 03.824 That's just absolutely not true.

03:35 - 05.459 And in the

03:35 - 09.463 waiver cases they were citing Leaman, we can't wave

03:35 - 13.433 a facial constitutional challenge by not bringing it up in front of the eqb.

03:35 - 14.334 Okay.

03:35 - 16.370 Why can't you not waive it?

03:35 - 17.104 Well, because it's

03:35 - 20.941 preserved by an appellate rule and it's preserved under the Lehman case.

03:35 - 24.077 Well, if it's preserved, that means you must be able to do it

03:35 - 25.512 right.

03:35 - 29.783 So do you bring the facial challenge as part of an appeal,

03:35 - 33.120 or do you bring the facial challenge as part of an original jurisdiction?

03:35 - 35.322 You can do either.

03:35 - 39.126 The problem that they have is that the Supreme Court said

03:35 - 43.964 under Lindbergh, that the exclusive method

03:35 - 47.167 for bringing a case like this

03:35 - 49.002 is in the court's appellate jurisdiction,

03:35 - 50.804 and that's what you're going to have to go back and look at.

03:35 - 52.472 I cited several cases.

03:35 - 56.376 There was it was first, Lindbergh, and then that was a plurality decision.

03:35 - 59.613 Then it became the Scranton case, which made it a majority decision.

03:35 - 02.683 This court had a Cromwell case that followed,

03:36 - 05.352 but they are saying the same thing, that

03:36 - 08.655 when you have this choice, in fact, there's one case where they actually filed

03:36 - 12.559 and I cited in my brief it was Avis, Avis, Rent a Car.

03:36 - 16.663 They filed two actions because they were worried about this very issue.

03:36 - 19.533 And I think Darlington mentioned it in the treatise.

03:36 - 22.636 So if you're not sure

03:36 - 25.706 you file two actions, you bring one in the court's original jurisdiction.

03:36 - 26.506 I want to ask you a question.

03:36 - 29.977 You sure you had said that there, far

03:36 - 33.213 and far as attempting to impose mandates.

03:36 - 34.081 Correct.

03:36 - 37.784 Say that again, that they're attempting to impose mandates.

03:36 - 39.019 No, I never said mandates.

03:36 - 40.887 I said there it looks like.

03:36 - 43.156 Okay. I'm sorry. Go ahead.

03:36 - 46.159 Well, my question is, is based

03:36 - 50.263 based on it and council's presentation to us,

03:36 - 54.167 isn't it really that they're asking for a return to the law, to the status

03:36 - 57.971 quo ante, which would just authorized, not mandate,

03:36 - 01.942 changes to bond requirements upon a rulemaking petition?

03:37 - 02.876 Correct.

03:37 - 07.047 Well, what what they're asking you to do is to undo

03:37 - 11.685 what the general Assembly required as part of act 96.

03:37 - 14.955 And when I first sat here this morning, Judge Coby said,

03:37 - 19.393 isn't the General Assembly in charge who the General Assembly is in charge?

03:37 - 25.198 And they said as part of the subchapter C grant program that they want

03:37 - 29.770 they don't want interference by either the DEP or private rulemaking.

03:37 - 31.505 They want to let it play out.

03:37 - 34.508 They want a viable conventional oil and gas industry.

03:37 - 35.542 So what they're asking,

03:37 - 39.146 and this really gets to, I think, a larger issue, I'm

03:37 - 42.783 not even sure that this is an article one section 27 case anymore.

03:37 - 46.386 When when the petition for review was initially filed,

03:37 - 50.657 they wanted five different declarations that certain aspects

03:37 - 54.361 of operating oil and gas wells violate the Environmental Rights Amendment.

03:37 - 56.296 Article one, section 27.

03:37 - 58.331 They're not asking for that anymore.

03:37 - 02.335 All they're asking for is to return the authority

03:38 - 05.972 to do rulemaking back to the DEP and Eqb.

03:38 - 08.141 That's not article one, section 27.

03:38 - 12.312 Returning that authority back doesn't do anything to protect the environment.

03:38 - 14.114 Not one thing.

03:38 - 15.682 It has to have something more.

03:38 - 17.150 And that's why I raised that.

03:38 - 20.220 What they're really after is some sort of

03:38 - 23.757 effect on the discretionary function of the government.

03:38 - 26.760 What this case now has turned into

03:38 - 30.163 is an article two, section one delegation case.

03:38 - 34.634 And if we don't have the case dismissed

03:38 - 39.506 because the Eqb made a decision, it was final and it wasn't appealed.

03:38 - 41.041 It's really that simple.

03:38 - 44.878 If it doesn't get dismissed on that basis, we're probably going to be looking at

03:38 - 48.048 a motion for judgment on the pleadings.

03:38 - 50.784 On this article two, section one issue.

03:38 - 53.153 Thank you very much. Okay. Thank you very much.

03:38 - 54.454 Good job on both sides.

03:38 - 55.388 Thank you.

03:38 - 57.824 And that is our last case for the day.

03:38 - 59.726 Thank you.

03:38 - 02.729 Any members I'm sorry Council pardon

03:39 - 06.666 the question, Your Honor.

03:39 - 09.903 Often the case they get decided he has a copy for each.

03:39 - 11.805 Okay.

03:39 - 12.839 Would you like copies of that?

03:39 - 14.007 You could give it to the court crier.

03:39 - 15.909 To the court crier, please. Yes,

03:39 - 19.379 please.

03:39 - 20.514 Thank you very much.

03:39 - 21.715 Thank you. Your.