00:04 - Good morning everyone.

00:08 - Welcome to our first day of the spring

00:11 - oral argument session here in Philadelphia.

00:15 - As you may know, the Pennsylvania Supreme Court

00:17 - is the oldest appellate court in North America.

00:21 - Our roots date back to William Penn's

00:23 - Provincial Court of 1684, and our Supreme Court

00:28 - was formally established pursuant to the Pennsylvania

00:32 - Judiciary Act of 1722.

00:35 - In May of 2022,

00:38 - we celebrated our 300th anniversary

00:41 - with a special session in Old City Hall here in Philadelphia.

00:46 - We on the court are very proud of our rich history.

00:50 - In 1996,

00:54 - 274 years after the establishment

00:58 - of our Supreme Court, Madam Justice Sandra Schultz

01:02 - Newman became the first woman ever

01:05 - elected to our Supreme Court.

01:09 - On September 9th, 2025, we gathered in this courtroom

01:14 - to bestow a very special and well-deserved

01:18 - honor upon Madam Justice Newman

01:21 - by renaming this historic courtroom

01:25 - the Madam Justice Sandra Schultz Newman Supreme Court courtroom.

01:30 - Sadly, Justice Newman passed away

01:33 - last month on February 2nd at the age of 87.

01:39 - Justice Newman was an inspiration to me and to countless

01:44 - other women in the judiciary and to those in the legal profession.

01:50 - May her memory be a blessing.

01:54 - Before we hear the first

01:55 - case, I would like to remind Council of a few things.

01:58 - Appellant's counsel, please approach the podium when your case is called.

02:02 - I will then give a short summary of the case.

02:05 - Please begin by introducing yourself

02:08 - and your co-counsel and identifying the party you represent.

02:12 - The justices are familiar with your cases, so we ask that

02:17 - you avoid any unnecessary recitation of facts or procedural history,

02:22 - and instead focus on the main issues on which we granted review.

02:27 - Counsel is welcome to rely on their briefs for particular issues.

02:32 - In cases where there are multiple parties represented by separate counsel.

02:37 - Council should avoid repeating the same arguments as prior counsel.

02:42 - Please do not interrupt the justices when they are asking you a question.

02:47 - A justices question is not meant to trip you up.

02:50 - Rather, it indicates there are particular issues that we wish to explore further.

02:56 - I remind you that we do not permit rebuttal.

03:00 - Finally, while we have no set time limit for argument, I will advise counsel

03:05 - when the court is satisfied that all of its questions have been answered.

03:10 - And at that time, I will ask that you conclude your argument.

03:14 - Mr. Miller, please call the first case.

03:18 - The next case we're going to hear is Gun

03:20 - Owners of America versus the city of Philadelphia.

03:25 - This case is simply about

03:27 - whether state law bars an ordinance in Philadelphia.

03:32 - With respect to ghost, what are known as ghost guns.

03:36 - The Pennsylvania Supreme Court will be deciding whether Philadelphia

03:40 - is allowed to ban people from privately making their own firearms,

03:45 - or whether state law bars Philadelphia from doing that.

03:49 - The case originated from an ordinance that Philadelphia passed that restricted

03:53 - the private manufacturer of firearms, including ghost guns that are made

03:57 - from kits or unfinished parts that don't have serial numbers.

04:02 - Specifically, the ordinance in question prohibits

04:05 - the manufacture of firearms components and attachments.

04:09 - The 3D printing, and the use of any additive

04:12 - manufacturing process to produce a firearm, among other things.

04:17 - The gun owner sued the City of Philadelphia

04:20 - and said that the city doesn't have the right to ban

04:24 - private manufacturer of of firearms

04:27 - for personal, noncommercial use.

04:29 - They said the ban violates the statutory preemption

04:34 - under the Pennsylvania Uniform Firearms Act.

04:38 - It violates the constitutional or constitutional

04:41 - right to bear arms, and it was a violation of their due process rights.

04:45 - Because the ordinance is void for vagueness.

04:48 - They ask the trial court to grant

04:51 - relief, injunctive relief and declaratory relief,

04:54 - to declare the ordinance void and to not allow the city to enforce it.

05:01 - The city, for its

05:02 - part, argued that it is permitted to regulate use

05:06 - and transfer of certain parts and tools that are not themselves firearms,

05:11 - but may be used by laypersons to create firearms.

05:14 - The ordinance, the city says, targets a widespread practice

05:18 - that takes advantage of a loophole in federal and state firearms

05:22 - regulations to sell parts, kits and tools that individuals can use

05:27 - all without background checks and without serial numbers.

05:31 - These ghost guns, the city says,

05:33 - are associated with violent crime.

05:37 - The trial court refused to and join the city

05:40 - from enforcing its ordinance, and the Commonwealth Court,

05:44 - affirmed that decision.

05:46 - The city claims that the Commonwealth Court correctly recognized

05:49 - that the ordinance sought only to regulate parts and tools

05:53 - that did not meet the federal and state definition of firearms.

05:58 - The Supreme Court

05:59 - now has been asked on appeal, to answer whether Pennsylvania law

06:05 - allows Philadelphia to regulate the private manufacturer of firearms,

06:10 - or is that a power reserved only for the state?

06:13 - Does the Pennsylvania Uniform Firearms Act preempt, which means supersede

06:19 - the Philadelphia Ordinance, either by its text

06:23 - or by field preemption, which means that the ordinance

06:27 - I'm sorry, the legislation was meant to cover the entire field.

06:31 - And then the last is a question, a constitutional question

06:35 - that the court has been asked.

06:36 - So with that, let's turn to the courtroom and hear the arguments.

06:41 - Good morning. Good morning.

06:43 - In 2021, the city of Philadelphia passed an ordinance that was designed,

06:48 - among other goals, to ban weapons commonly known as ghost guns,

06:53 - including the use of three dimensional printers to construct such firearms.

07:00 - In this appeal, we consider whether the ordinance

07:03 - is preempted by the Pennsylvania Uniform Firearms Act under

07:08 - either express or field preemption principles.

07:12 - We also granted review to address whether waiver applies when a party

07:17 - bringing a claim pursuant to the Pennsylvania Constitution

07:21 - fails to formally brief the four prong protocol

07:25 - used in analyzing state constitutional rights

07:29 - as set forth in our seminal decision

07:32 - of Commonwealth versus Edmunds.

07:35 - Please proceed.

07:37 - Good morning, Your Honor. And may it please the court.

07:39 - My name is Gilbert Ambler.

07:40 - I'm joined today by co-counsel Oliver Crabtree,

07:43 - who's in the gallery and will not be arguing.

07:45 - And I represent Gun Owners of America Gun Owners Foundation.

07:49 - Is he.

07:51 - Oh, he should

07:51 - should come to counsel table and we can see him.

07:55 - Thank you, Chief Justice. Yes. Welcome.

07:58 - Welcome.

07:59 - And alongside gun owners of American Gun Owners Foundation,

08:03 - I represent for individuals

08:04 - who desire to lawfully build firearms within the city of Philadelphia.

08:08 - And in this case, the General Assembly has expressly

08:12 - preempted the field of firearms regulation in Pennsylvania.

08:17 - This court has indicated that the field of firearms is preempted in Pennsylvania.

08:21 - The Commonwealth Court has said that the field of firearms

08:24 - is preempted in Pennsylvania several times over.

08:28 - And to paraphrase Justice Wecht during the 2023 Crawford arguments.

08:33 - What part of no don't you understand?

08:35 - And here we believe that the Commonwealth Court got

08:38 - the correct result, reached the correct result

08:41 - when they determined that the field of firearms was preempted.

08:45 - But then proceeded with a wrongful analysis to conclude that this ordinance

08:49 - was not preempted under field preemption, nor under express preemption.

08:55 - And turning to the language of section 6120,

08:59 - the title of the statute demands uniformity.

09:02 - The language of the statute prohibiting regulation

09:06 - in any manner is an express, explicit prohibition

09:10 - on local government in any manner regulating firearms.

09:15 - The legislative history in this case is indicative of field preemption.

09:20 - Why would the Uniform Firearms Act direct how to carry in Philadelphia,

09:25 - for example, under 6108, if they did not intend

09:28 - to occupy the entire field throughout the Commonwealth?

09:33 - Alterations whenever the City of Philadelphia or other localities

09:37 - or municipalities have attempted to find a crack in preemption,

09:41 - the General Assembly has amended and altered to fill those cracks

09:45 - when they have popped up.

09:46 - To ensure that there is a clear understanding that the field is preempted.

09:51 - This comprehensive, comprehensive regulatory structure is similar

09:55 - to other places in which this court has found the field to be preempted.

10:00 - In fact, very recently in the Crawford decision, this court described

10:04 - the Uniform Firearms Act as a comprehensive regulatory structure.

10:08 - And, of course, that language is similar to things like the regulation of alcohol,

10:13 - the regulation of public utilities, and the regulation of the banking industry.

10:18 - So, if I may share with us your thought between

10:21 - 6120 and 60, 105, 6105.

10:24 - Specifically, the legislators specifically used the word manufacturer,

10:29 - yet it's not in 6120.

10:32 - What is it in 6120 that you manifest?

10:38 - You manifested the manufacturing aspect.

10:42 - Judge, I think that it's the very genesis of the item in question.

10:45 - And so the fact that 6105, in fact, considers manufacturing,

10:50 - we think, is evidence of the fact that the General Assembly very much

10:54 - intended to preempt the field, including defining who is allowed

10:57 - to manufacture a firearm, and why wouldn't they just use the same word in 60,

11:01 - 105 and 6120 if we were to follow your theory?

11:06 - Well, because when they talk about ownership, ownership

11:09 - has to naturally encompass something being made at some point.

11:12 - There's no ability to own or possess something if it never gets made

11:16 - in the first place.

11:22 - Let me ask you a question.

11:24 - That, sort of

11:27 - may seem a little bit off track, but I don't think so.

11:30 - In studying the language of subsection A of 6120,

11:35 - and you spend a lot of your time dealing

11:38 - with this statute in these types of cases,

11:41 - could you tell me what the term, when carried or transported,

11:48 - modifies in section

11:51 - 2160?

11:54 - No county, municipality

11:56 - or township may in any manner regulate the lawful

12:00 - ownership, possession, transport or transportation of firearms, ammunition

12:05 - or ammunition components when carried or transported.

12:10 - That's a good question, Your Honor.

12:12 - And I think that, what they're talking about here

12:15 - is targeted towards the, transport transfer portion of the statute.

12:21 - And so when you look through the scope of the Uniform Firearms

12:25 - Act, there's 6109, for example, 160, 108.

12:29 - There's multiple examples where they define how a firearm can be

12:32 - carried, how it can be transported, in what ways it can be moved at all.

12:37 - And I think what they're doing is they're saying

12:39 - this is what we're trying to preempt, or that's what I'm asking you.

12:42 - I mean, are they attempting to preempt regulation

12:47 - when firearms are being carried or transported?

12:51 - They are, Your honor.

12:53 - Okay.

12:53 - So, that that term modifies,

12:57 - firearms, ammunition or ammunition components.

13:00 - Correct.

13:01 - So the only thing that this is intended to do is preclude regulation

13:06 - when firearms are being carried or transported.

13:10 - I don't believe that that's consistent with this court's prior decisions.

13:13 - And or TS, for example.

13:14 - That's interesting

13:15 - because I don't think we've ever looked at the words of the statute.

13:20 - Well, in and in the Ortiz case, they considered 6120 as a whole,

13:26 - and they found that it preempted a statute that prohibited certain types of weapons

13:30 - as well as accessories of weapons.

13:31 - But we didn't actually consider, what carried or transported

13:36 - modified in the context of section 6120.

13:40 - And if, if,

13:42 - what we're talking about is correct.

13:46 - Certainly the regulation

13:48 - of manufactured manufacturing

13:52 - has nothing to do with firearms when they're being carried or transported.

13:56 - I think the zooming out and looking at the statute as a whole,

14:00 - they proceed to say in any manner, and I think what they're getting at here

14:04 - is that they're not trying to limit

14:06 - it quite as specifically as perhaps you're proposing carbon statute

14:10 - in any manner precedes the rest of the language in the statute.

14:14 - So, so it's you can't regulate in any manner

14:18 - when firearms are being carried or transported.

14:21 - And that would stand in direct conflict if you were to read it that narrowly,

14:26 - with the broader protections of section 6120, because where did the broader.

14:30 - Well, the broader protections can only flow from the language of the statute.

14:35 - Correct.

14:36 - I would agree, Your Honor, but the to target ownership and possession

14:41 - and then separate ownership and possession out and say all we're worried about here

14:45 - is the transport of firearms, but it's carried or transported.

14:49 - Carried has a very particular meaning in the context of firearms.

14:54 - And it's defined under section 61.

14:56 - Oh, no. Yes.

14:57 - I mean, what you're suggesting is when carried or transported is meaningless.

15:05 - I think that

15:07 - I see it conversely, which is that that would make it

15:09 - the ownership or possession portion of the statute meaningless

15:12 - if we said that the statute only preempts carry or transport regulations,

15:18 - we could forget about the ownership and the possession portions of it.

15:22 - If that's all they were looking at, then it would be transferred over

15:25 - our possession.

15:26 - Any crimes that arise, as a result of carrying or transporting

15:31 - that there are I mean, so

15:35 - I mean, some carried or transported has to mean something

15:38 - within the context of, subsection A 6120

15:43 - and I, I, I'm, I'm struggling

15:46 - with what it could mean otherwise that

15:49 - regulation of firearms is precluded

15:52 - when they are being carried or transported,

15:55 - and that reading of the statute would then allow

15:59 - the localities to come up with statutes that govern the ownership or possession.

16:04 - And I think clearly inside

16:05 - of the context of when they're being carried or transported.

16:09 - Yes, yes, I think that's the argument that you're sort of laying out right now.

16:13 - Is that to say, as long as they're not being moved around,

16:16 - we could regulate them inside the home, for example,

16:19 - because they're not being carried or transported.

16:21 - And I don't think

16:21 - when we look at what this court has done, what the General Assembly has done

16:25 - in response to firearms ordinances that have popped up in various locations,

16:30 - I don't think that's consistent with how either this court

16:33 - or the General Assembly has treated this.

16:35 - I understand, I understand that, but our case law

16:38 - has never really focused on this language.

16:45 - And I would like to answer your question.

16:47 - I also would like to answer whatever Justice Wecht is about this.

16:50 - I just wanted to follow up on Justice Donahue's question by asking you, Kenny.

16:54 - Because I also noted those words at the end, can a firearm

16:58 - be lawfully owned, possessed, transferred, or transported,

17:04 - in circumstances when it's not being carried or transported?

17:09 - Yes. A firearm could be owned or possessed

17:11 - in circumstances where it is not being carried or transported.

17:14 - But I think if we were to read section 6120 as applying

17:19 - only to the carry or transport of firearms,

17:21 - it would make the ownership and possession,

17:25 - start of the statute a novelty.

17:27 - What's what's the purpose of including the ownership or possession,

17:31 - if all we're really trying to protect against is restrictions on the carry

17:36 - or transport of firearms, because you also can't regulate

17:39 - the lawful transportation of a firearm or carrier transport.

17:43 - And I think that that that would be the construction would be regulate

17:46 - the lawful transportation of firearms when carried or transported.

17:50 - That seems to be redundant, isn't it?

17:52 - Well, I think it is.

17:54 - It makes it superfluous language to say that's transportation twice.

17:59 - You're regulating transport

18:00 - so you can't regulate transportation when you're transporting welcoming.

18:04 - But isn't it possible that the carried or transportation, purportedly

18:07 - which refers to ammunition components, that is an alternative possible reading.

18:12 - I'm sorry, I didn't hear that.

18:13 - What is the alternative methods

18:15 - that that ammunition components would carry or transport?

18:19 - And what will what

18:22 - how would you support that interpretation of justice protection?

18:26 - Well, I think we're getting into,

18:29 - you know, statutory construction.

18:30 - That's what this is about. That's what we're here for.

18:33 - That is true.

18:36 - It is to be used to repair, not a construction

18:39 - that anybody in this litigation has offered.

18:42 - But what we got to do, we got to consider the statute.

18:45 - Even though nobody has made this structure,

18:48 - I think the placement in the statute, it's tacked on the tail end there.

18:53 - And the most, and the question Justice Robson has posed in

18:58 - how could it relate to ammunition components shows that

19:01 - the proximity in the statute is that it is intended to modify,

19:05 - perhaps the carry of ammunition components at that point, to tell the truth,

19:10 - the ammunition component portion of the statute I find to be a strange,

19:16 - statutory construction in the first place,

19:18 - that ammunition and ammunition components were modified in that way.

19:21 - Strange construction or strange word choice?

19:25 - Well, but both justice.

19:27 - A strange word choice in a strange construction.

19:32 - I and I understand

19:34 - the questions relating to statutory construction here, but I think,

19:39 - as Justice Robson referenced, the fact that no one has argued or briefed

19:43 - that in the past, and there has been quite a bit of litigation on this statute

19:47 - and the General Assembly has decided at times to amend the statute

19:51 - in response to some of the cases that have popped up, amended it.

19:55 - But just I mean, but if you if we if we read the statute

20:01 - in the construction, Justice Robson offered there

20:06 - that would

20:08 - that would, avoid conflict

20:12 - between the carrier transported language

20:16 - and the ownership and possession language, wouldn't it?

20:21 - Because if the carrier transported were understood to refer to the ammunition

20:27 - components, then the ownership and possession language,

20:35 - could be understood to

20:36 - apply to firearms without reference to the carrier transported.

20:40 - And and to answer that question again, I think that would be

20:44 - a odd construction, although albeit a possible construction.

20:48 - And the reason that would be an odd construction

20:49 - would be to find that the statute wanted to protect the possessor

20:55 - elements of ownership and not protect the possessor elements of,

21:00 - or the transportation elements of ownership of a firearm.

21:04 - You know you're able to own a firearm, but we're not going to explicitly protect

21:07 - transporting it.

21:08 - But then when we get to ammunition,

21:10 - we're going to explicitly protect the transport of ammunition.

21:14 - If it's going to protect ownership, possession,

21:16 - transfer or transportation,

21:20 - but only when

21:22 - carrier transport.

21:25 - And that's and I think justice work to say,

21:28 - you know, if we interpret this carried or transported clause

21:32 - to only apply to ammunition components, that would make the rest of the statute

21:37 - make the rest of the provision make sense if you don't interpret it that way.

21:41 - There's an internal conflict.

21:43 - I think that's the question.

21:45 - And that I think is a sensible reading.

21:49 - At that

21:49 - point, you don't necessarily have explicit protection

21:52 - for the ownership of ammunition or ammunition components.

21:56 - That way.

21:57 - You would, if you, if you if you say

22:00 - if you say no, county musicality may in any manner regain lawful ownership

22:06 - or possession when you carry or transport.

22:09 - That would provide the protection that you're arguing.

22:13 - Correct.

22:13 - But if you if you limit when carried or transported to ammunition

22:17 - components, ownership of possession or protected.

22:20 - Yes, justice.

22:21 - And in order to do that, we would have to read some conjunction,

22:27 - in between firearms and ammunition

22:30 - or ammunition components when carried or transported

22:34 - and ammunition or ammunition components when carried or transport.

22:39 - But that's not how it's written.

22:41 - That is not how it's written.

22:43 - That's not the phrasing.

22:44 - But again, the

22:45 - the proximity and the duplicative nature of what is being protected here

22:49 - indicates that the General Assembly was up to something where they thought

22:53 - that there had to be protection for ownership of firearms.

22:57 - Thank you.

23:00 - And, you know, I think that that's important

23:02 - to turn to these other cases where we've seen this court find that

23:06 - the field is preempted,

23:08 - because when we look at that broad language

23:11 - in any manner, I think that that is similar to situations

23:15 - for example, where the alcohol and the banking industry,

23:19 - neither of which say, field preemption, by the way,

23:22 - when they talk about those industries, they're looking

23:24 - at the scope of the regulation and they're looking at,

23:28 - how comprehensive that regulation is.

23:30 - And here I think that, you know, I had the question previously

23:33 - on section 6105 and the term manufacturer from Justice Daugherty.

23:37 - I think that that is good evidence, in fact, that the field is intended

23:41 - to be preempted here because although they did not use that word

23:45 - in section 6120 and section 6120 has changed some over the years,

23:49 - I think the fact that that is something that the General Assembly

23:52 - is thinking about, and it's an area that the General Assembly is legislating

23:56 - in, shows that they intended to be the ones creating the laws in that field.

24:01 - And so they intended to come up with

24:03 - who's eligible to possess firearms, who's eligible to make firearms, etc..

24:07 - And so when you look broadly through the Uniform Firearms Act,

24:11 - there are things, relating to carrying firearms.

24:15 - There's things relating to owning firearms, for example, that they govern

24:19 - and they don't say in section 6120 that loans on firearms are preempted.

24:25 - And yet they legislated in that area in a manner that shows they intended to be

24:29 - the ones who planted the field, planted the flag in the field to say,

24:33 - we are the ones who can make law, make and legislate in this area.

24:37 - Your position

24:38 - that if every individual in this courtroom had A3D machine and we all went home

24:43 - and we printed our own firearms, not registered, not tracked,

24:49 - that's what is permissible.

24:51 - Well, I think that there is more governance than just saying

24:54 - everyone can do this, because they do set forth

24:56 - classifications of persons that would be prohibited from doing that.

24:59 - Assuming you are eligible to possess firearms, then yes, I think that

25:04 - 3D printing of firearms is something that would stop under your theory.

25:07 - What would stop a 12 year old who was operating A3D machine to make his own gun?

25:11 - He takes the school that there are.

25:14 - Well, there's a prohibition on firearms on school property, which is 18 CF section

25:20 - 912, I believe, well aware of it, but the issue is the manufacture.

25:24 - Sure.

25:24 - The 12 year olds making a gun in essence, but I'm trying to

25:28 - overcome this hurdle of yours is that it's your position

25:32 - that the government, through its police powers, doesn't have the right to regulate

25:36 - the manufacture of a firearm because of 6120.

25:41 - Yet the word manufacture is not part of that.

25:45 - You are gleaning that based upon your perception

25:50 - of manufacturing 6105 and 1961

25:53 - 20 I'm really struggling with that.

25:56 - I'm gleaning that from the term ownership and the term possession,

26:00 - because there has to be some ability to acquire a firearm

26:04 - in order to own it or possess it.

26:06 - And there have been multiple cases that stand for the proposition

26:10 - that the local government is not able

26:14 - to govern the manner of acquisition.

26:17 - And so this would be things

26:18 - like the permit to purchase laws that have been proposed

26:21 - and that have been struck down,

26:22 - that governs ownership of firearms through governing the acquisition of a firearm.

26:26 - This is simply a method of acquiring a firearm in order to make a firearm.

26:30 - And that is one way. And you know, the law.

26:33 - The Uniform Firearms Act does govern possession of firearms by minors.

26:38 - So that is something that is already unlawful.

26:41 - So when you ask.

26:41 - And so I was working backwards starting with the school property.

26:44 - But the Uniform Firearms Act

26:45 - does address that scenario that say following your theory,

26:49 - the child can still make a a 12 year old can make his own gun in the house.

26:54 - Not he ended up

26:56 - not lawfully under the Uniform Firearms Act because the Uniform

26:59 - Firearms Act already prohibits minors from possessing a firearm.

27:03 - I'm well aware of the statute, so under my theory, I'm still trying this.

27:07 - I'm concentrating on the word manufacture, not bringing in 61.

27:11 - The other,

27:13 - statutes out of 61 underage or concealed weapon in Philadelphia.

27:18 - Nonetheless, I'm asking specifically the word manufacturer

27:21 - because I still am not agreeing with your argument.

27:24 - I'm trying to perceive it.

27:26 - So it's still correct.

27:27 - Under manufacture, when they set forth classifications of persons they did not

27:31 - specifically addressed minors, although they otherwise addressed minors.

27:35 - And I understand you're saying set that aside for a minute.

27:37 - Just look at manufacturer.

27:39 - But it becomes a nullity again, to say a child can manufacture a firearm

27:44 - but not be in possession of a firearm that's already unlawful under the act.

27:47 - And so if you're saying, why wouldn't

27:50 - they have specifically said a child could not manufacture,

27:54 - as they did with other categories of prohibited persons under section 6105?

27:59 - I think the issue is because they said broadly, minors can't possess,

28:03 - and then they set forth the exemptions when they could possess,

28:06 - so it is something that the General Assembly has considered,

28:09 - you know, at what point can a minor possess a firearm?

28:11 - And this comes back to that

28:12 - circular nature that we're talking about, where in order to possess something,

28:16 - you have to be able to acquire in the first place.

28:19 - And that's something else that the Uniform Firearms Act governs

28:22 - is at what point minors can acquire firearms.

28:26 - And I think that shows that the General Assembly

28:29 - is intending to delineate

28:32 - who is eligible for this process, that they have considered this process.

28:36 - This isn't out of left field.

28:37 - This isn't the first time that the General Assembly has thought about this.

28:43 - And the

28:43 - ownership or possession for that to be meaningful in any way.

28:47 - And I want to turn back to Ortiz.

28:49 - And I understand, just before you go to Ortiz,

28:53 - focusing on the words of the statute,

28:55 - could I could I ask you,

28:58 - the 61, 20,

29:02 - references ammunition or ammunition components?

29:07 - But it only mentions firearms and not firearms components.

29:11 - Are we not to attribute significance to that distinction?

29:15 - I don't think you can, because I heard, this described

29:20 - as the belt and suspenders approach where when they said ammunition

29:24 - and then ammunition

29:25 - components, that if you're talking about regulation in any manner, it's

29:29 - going to imbibe, it's going to cover both ammunition and ammunition components.

29:33 - And likewise, the regulation of firearms in any manner would

29:37 - necessarily cover not just firearms but also firearms components.

29:40 - And I know you're trying to hold me back from getting to Ortiz,

29:44 - but this is one of the reasons that Ortiz is I'm

29:47 - not trying to hold you back from anything. I'm just.

29:49 - Before you jump to interpreting case law, I just wanted to ask you

29:52 - that statutory text question, but sorry.

29:55 - Go ahead.

29:56 - Well, and I, I

29:58 - that is a interesting distinction, but I don't think a dispositive distinction.

30:02 - And what I mean by that is for a firearm, if you were to take

30:06 - the alternative construction and say firearm components can be regulated, but

30:13 - so forget the discount the in any manner language,

30:16 - it's only completed firearms, things that meet the definition of a firearm

30:20 - that can be regulated can't be regulated rather,

30:23 - but the firearms components can still be regulated.

30:26 - We start to get to an absurd result because quickly, what you'll find is that

30:30 - there's all manner of things that would still fit the definition

30:34 - of a firearm in the uniform firearm rack, but not be usable as firearms.

30:38 - I mean, they're, you know, like ammunition components.

30:40 - I guess you could be talking like powder, right?

30:42 - I, let's just say musketry occurs, you know?

30:46 - Yeah, I agree. Okay.

30:47 - But but firearm components, the,

30:50 - the the receivers, the these,

30:54 - these unfinished, aspects, why wouldn't we.

31:00 - What why shouldn't we consider that the legislature

31:03 - had those things in mind and decided to leave them out such that

31:07 - a municipality could pick up and legislated,

31:09 - a municipality could pick up the legislative area

31:12 - because it would lead to the very harm that Ortiz was concerned about.

31:16 - And Ortiz said the regulation of firearms is constitutionally protected.

31:20 - Therefore, the appropriate place to have that debate is in the General Assembly.

31:23 - And if you were to adopt this alternative, have your constitutional challenge

31:28 - and subject to the second argument here. But,

31:33 - we do.

31:33 - But I think that that's one of the things that Ortiz is trying to avoid is trying

31:37 - to avoid a locality or a municipality saying, well, we can ban a barrel,

31:43 - we can ban your barrels because you can still have the firearm.

31:46 - It's still readily convertible.

31:47 - It still meets the definition of a firearm.

31:49 - So we're not banning the firearm.

31:51 - You're allowed to have the firearm.

31:52 - You just can't have a barrel or you can't load the firearm.

31:55 - Well, but that's so

31:58 - the definition of firearm is is a complicated one.

32:01 - Because the way the statute is written, it relies on the definition.

32:05 - Basically that the ATF assigns to whatever a firearm is.

32:10 - And when I was on the Commonwealth Court, I had

32:11 - a, I had a case dealing with the so-called ghost guns.

32:15 - And, these polymer 80 kits is 80% receivers.

32:19 - And one of the issues of that was that,

32:23 - the state police adopted a new policy to expand the definition

32:26 - of firearm to include so-called partially manufactured receivers.

32:31 - And, the court, you know, issued an injunction

32:35 - basically saying, look, you can't define what a partially manufactured receiver is.

32:39 - Therefore, people don't have notice.

32:40 - They can't they don't know what is and is not a firearm under your new definition.

32:44 - And you've traditionally followed the ATF.

32:47 - Now the feds have changed the definition of firearm.

32:50 - They've expanded the definition to include,

32:54 - certain partially what used to be called

32:57 - partially manufactured, these these 80% kits.

33:00 - And it was subject to a recent challenge in the United States Supreme Court.

33:04 - The Bondy versus, Vander Stock decision

33:09 - seemed to let that go, and they're going to let it kind of flow.

33:13 - But you would agree that under that rubric from the Supreme Court,

33:18 - at some point in time, a firearm component becomes a, quote,

33:22 - firearm, close quote, for purposes of regulation

33:25 - on the federal level and under the USA, correct?

33:29 - I would agree with that.

33:30 - And I think that this sort of a history in getting into the federal history of,

33:35 - you know, I know the federal history because it's what we follow in the state.

33:39 - So so to Justice Black's point, even though a block of wood

33:43 - could be turned into a pop into a gun, the United States

33:47 - Supreme Court would not say that a block of wood is a firearm, right?

33:52 - That that is correct. So it's some.

33:54 - So let's now take the 80% receiver kits, the polymer 80s and the like.

33:59 - I've have as I read

34:00 - body that very well may be a firearm.

34:04 - Now the such that it is subject to UEFA regulation has to be serialized.

34:09 - Is that a fair reading of body? I think that's a fair reading.

34:11 - And to this point I want to nod to the concerns.

34:14 - Justice Daugherty was,

34:16 - eliciting, which is, you know, what about 12 year

34:19 - olds getting 3D printers or everybody in this courtroom getting 3D print?

34:22 - Well, nobody's

34:23 - going to say a 3D printer is a firearm or is going to be a firearm, right?

34:26 - Nobody's going to say that.

34:28 - Well, where I wanted to go with this is the idea that when in 2021,

34:32 - when this ordinance was passed, in this litigation started,

34:35 - we were operating under a somewhat different set of rules in terms

34:38 - of the definition of what constituted a firearm at that point.

34:41 - And so to that extent, to the extent that the city was concerned

34:44 - with the polymer 80s that you're discussing and their

34:49 - widespread prevalence and the ability for people to unlawfully

34:52 - make firearms, be persons not to possess, etc., make firearms with them.

34:57 - To a large extent, that concern has already been remedied

35:00 - by the federal government.

35:01 - And so you can preserve the integrity of the Uniform Firearms

35:04 - Act here, preserve the integrity of, preemption.

35:07 - By my point for saying that is, is your point.

35:10 - The point is, depending on where the

35:13 - where a component, a block of wood

35:16 - crosses the line and the firearm would trigger the UFA, right.

35:19 - That is correct.

35:20 - So you would you would have to concede then prior to that point,

35:25 - meaning the city could regulate the block of wood.

35:29 - I, I think they cannot regulate it

35:32 - if they're doing so with the intention to regulate a firearm.

35:35 - And that's well, I was getting to the core of the art cutting.

35:37 - I'm not going to get

35:38 - I'm not going to get into their heads as to what they intended.

35:40 - They don't intend. I'm going to look at the language of the ordinance.

35:43 - But you would agree that that at least

35:46 - from a from a UFA perspective,

35:49 - the city could exercise its police powers

35:53 - to pass an ordinance that regulates something that is not a firearm.

35:57 - Absolutely. Okay. I would agree with that.

36:00 - So now we're just talking about lines.

36:03 - We're just talking about where where is the line between

36:06 - what is a firearm and what is not yet a firearm.

36:09 - And I think everyone is in agreement because the city's position on this point,

36:13 - because the city that we're talking about lines

36:15 - because the city's position is we can regulate right up to that very edge.

36:19 - And even if that edge

36:20 - shifts at some point, we can regulate to wherever it shifts to.

36:24 - And it's it's almost like the, you know, I've got a four year old at home

36:28 - and a two year old at home. It's like the little kids.

36:31 - No, no, no, I'm not touching you type argument.

36:33 - And I think that's essentially what we're seeing from the city.

36:36 - Right now is they think they can get right up to that.

36:38 - And where I, where I think this is different than an ordinance

36:43 - that just would prohibit possession of a two by four block of wood

36:48 - is this ordinance says you can't have a two

36:49 - by four block of wood if you start working on it to make a gun.

36:53 - Well, there's there's no question

36:55 - of this ordinance specifically regulates the manufacture of firearms.

36:58 - I mean, it says that, it's I'm just trying to figure out

37:02 - if for some reason, if the court would decide that, that

37:06 - that crosses the line, that you can't regulate firearms.

37:12 - You could acknowledge, though, that they could regulate

37:15 - something short of the body line, whatever that happens to be.

37:20 - Whatever how the litigation develops there.

37:23 - And I just wonder if, should we take a similar approach in this case and say,

37:27 - you know, we're not going to say we're going to

37:28 - we're going to wait to see how this is enforced and kind of to see

37:32 - whether the city does truly,

37:36 - hit what is what meets the federal definition.

37:39 - And thereby the state definition of firearms.

37:42 - I think that to respond to your question,

37:45 - this comes back to the entire field preemption debate.

37:49 - Because if the field of firearms is preempted,

37:52 - then what we're talking about is really just explicit preemption.

37:56 - You're saying whatever, whatever some legislators may have intended

38:00 - if they didn't preempt the field, if we're dealing with express preemption,

38:04 - then we really do have to drill down and parse this language, right?

38:07 - If they did not preempt the field.

38:08 - And if you were to find that the field of firearms is not preempted,

38:11 - then we have to get narrower and ask it in response to a question to express that.

38:15 - Does the protection for ownership and protection implicitly protect

38:19 - the making of firearms?

38:22 - And I think that the answer to that is yes.

38:25 - Expressly.

38:26 - You said implicitly, I'm sorry, expressly not.

38:30 - Not implicitly. You're right.

38:31 - And I apologize for my misstatement there expressly through protection

38:35 - for ownership and possession, protected the mode of acquiring firearms.

38:39 - And if the court were to go the alternative direction and say

38:43 - that the ownership and possession of firearms does not,

38:47 - in any way protect the methods of acquisition of firearms,

38:51 - then that would not only be contrary to the case law here, but

38:55 - also upend and, you know, essentially

38:59 - destroy the protections of section 6120,

39:01 - because once localities could regulate the manner of acquisition of a firearm,

39:07 - then you are going to see all those things that have been tried

39:11 - and struck down over the years, starting to come into play until you

39:14 - you indicated you'd like to address some of the other Pennsylvania cases.

39:18 - Do you have more to say on that?

39:21 - For the most part, we can stand on our papers in that respect,

39:24 - other than to say that this is a line of cases

39:27 - that has been relied on here for 30 years since Ortiz and I did

39:31 - want to point out one distinction, which I do think is relevant in Ortiz.

39:35 - And I understand that,

39:36 - as Justice Donohue pointed out, Ortiz didn't drill down the language,

39:40 - but Ortiz did declare that it was preempted

39:44 - not only to not only an ordinance impacting firearms, but an ordinance

39:49 - impacting accessories in that case as well.

39:52 - And so we feel that that goes directly towards the idea that there is field

39:56 - preemption on the subject of firearms, because Ortiz found accessories

40:00 - in that case to also be preempted by section 6120 going even further back.

40:04 - And I told you I wouldn't go deep into the case law, and I won't.

40:07 - But I do want to make the point that going even further back, when we looked

40:10 - at the Schenck case, when the Schenck case occurred, there was only protection

40:16 - in section 6120 for the ownership and possession of firearms.

40:21 - And they still found that the Schenck

40:25 - that the ordinances in the Schenck case were preempted.

40:28 - And thereafter the General Assembly actually broadened to make sure

40:32 - that they covered other modes by expanding the definition of section

40:37 - 6120, the ownership possession section as First Amendment case from 100 years ago.

40:42 - Snacks, that is correct, are missing in ammo and m am I not?

40:47 - Thank you

40:48 - for pointing that out to me, counsel, can we take a step back?

40:51 - Maybe you can educate me on a point

40:53 - that I'm kind of a little bit confused about, and follow up to what Mr.

40:56 - Justice Daugherty had asked you?

40:59 - I understand we're focused on the language of the statute, but

41:03 - we're not talking about regulating blocks of wood.

41:06 - As Justice Robinson mentioned, you're talking about an ordinance

41:09 - that, in essence, really talks

41:12 - about unfinished frames and receivers, which are component parts to a firearm.

41:16 - Right? Yes, that is correct.

41:19 - The language I'm kind of concerned about, because you keep talking about

41:22 - we can't regulate, we can't regulate.

41:23 - But firearms are regulated under the USA, are they not?

41:27 - They are in fact, every single manufacturer of weapons,

41:30 - firearms in the United States of America and importers, whether it's Colt, SIG,

41:34 - Springfield, timber, you name it, has a federal licensing requirement.

41:38 - Do they not?

41:40 - That is correct if they are engaged in the business.

41:42 - So, that that may be a distinction here that's worth calling out or pointing out,

41:47 - which is we'll get to that in a second.

41:48 - But one of the regulations which federal licensing requires is

41:52 - a stamp or a serial number on each firearm.

41:56 - If you're doing it commercially. Yes.

41:57 - Let's talk about the block of wood the justice was talking about.

42:00 - So you've got an unfinished frame and receiver that is put together.

42:03 - And the gun

42:04 - you said you represented for individuals that want to manufacture their own guns,

42:07 - are they federal licensor?

42:09 - No. So how do they get the serial numbers that can make it lawful.

42:12 - So it's lawful under the federal laws if you're doing it for personal use.

42:16 - If your your the serialization is only you can put together your own weapon

42:20 - without a serial number on it for personal use.

42:22 - You may under federal law,

42:24 - what section of the federal laws that you're, you're quoting.

42:27 - So where we're looking and I can provide you

42:30 - a letter on this, but broadly speaking, we're looking at 922 and nine 2318 U.S.C.

42:35 - 922 and 923,

42:37 - which would

42:37 - govern the manufacturing processes?

42:41 - I don't know that I'm going to be able to provide you a section

42:44 - that says you can do this because as,

42:46 - of course, you're well aware, well, largely defines what you cannot do. I'm

42:49 - worried about legitimizing or legalizing something that's otherwise unlawful.

42:52 - I think the big the big issue here, from the law enforcement perspective

42:56 - and from everybody else's perspective, is these ghost guns are being used,

42:59 - dropped at the scene of a crime. And there's no way to trace them back.

43:02 - The whole purpose of the serial number

43:04 - is to be able to trace the manufacturer to the buyer.

43:06 - We can get into the reasons for that later, but in this particular case,

43:10 - at which point they become lawful.

43:12 - And what how does the government, law enforcement, how do you enforce that?

43:16 - If it's for personal use and you have no serial number

43:18 - on these unfinished,

43:19 - stamped on an unfinished frame of receiver that identifies the manufacturer.

43:23 - So the van der stock case that we discussed briefly earlier, the 80% kit,

43:28 - the 80% case that would lay out, I believe, and I can go back.

43:32 - And as I said, I'd be happy to provide the court

43:33 - a letter on this, but it would lay out the idea that

43:37 - individuals for personal use don't have to serialize firearms

43:40 - that they make, and that remains true under federal law.

43:43 - It remains true under Pennsylvania law.

43:45 - And, you know, and we talked a little bit about this in our briefing

43:48 - that there was a proud history in Pennsylvania and in Philadelphia,

43:52 - specifically of people being able to make their own firearms.

43:56 - And the federal requirements didn't come around until 1968

44:00 - to even require manufacturers to begin serialization.

44:03 - Now, I understand all of the reasons and all of the logic on why

44:06 - serial numbers are important on commercially made firearms.

44:10 - But it remains true under Pennsylvania law and federal law

44:13 - that today, if you're manufacturing for your own use,

44:17 - for yourself as a hobbyist, there is no requirement

44:20 - under Pennsylvania or federal law to serialize a firearm.

44:24 - But Pennsylvania.

44:24 - So but Pennsylvania could have a law

44:28 - that says you have to serialize your own personally made firearm.

44:31 - I mean, you may you may try to challenge it under the Second Amendment

44:34 - or something else, but but there's nothing preventing the federal government

44:38 - or the state government from passing such a serialization statute.

44:41 - There's nothing preventing it.

44:42 - And it's been proposed in the General Assembly in several instances

44:45 - where the General Assembly has considered whether to make that a requirement.

44:49 - Can I go back just for a quick to the to the to the, 3D printer?

44:54 - And I know hypotheticals are dangerous, but I'm trying

44:57 - to understand where your lines are in this case,

45:01 - if the concern is

45:02 - 3D printing, could the city,

45:06 - County of Philadelphia pass an ordinance

45:09 - that limits the use of 3D printers

45:12 - and says specifically, you can use a 3D printer to, for your own personal

45:17 - use to do X, Y, and Z and excludes from the list creating a firearm,

45:22 - and says all other use of three for 3D printers is prohibited.

45:26 - Can I make the question easier for myself and say that if they prohibited

45:29 - 3D printers broadly, they just said you can't have a 3D printer?

45:33 - I think that would probably be permissible,

45:36 - if a 3D printer, the banning

45:38 - the use of 3D printers to, to create

45:42 - component parts that are not yet firearms.

45:46 - At that point, when I started here, I said component parts

45:49 - that are not yet firearms, and they don't cross the vendor

45:53 - or the vendor stock line, you know, wherever that line is, wherever that line

45:58 - is, I don't think that under the regulation

46:01 - of firearms and preemption for regulation in any manner, that you can regulate

46:06 - people making components prior to that,

46:09 - under that argument that you can't regulate a block of wood.

46:13 - Well, I, I agree and disagree with Your Honor,

46:16 - which is to say that you can't regulate a block of wood by itself, or you can.

46:21 - Right. I'm getting myself twisted up here.

46:22 - You can regulate a block of wood by itself.

46:24 - You can't regulate the block of wood

46:26 - for the purpose of stopping somebody from using it on a firearm.

46:29 - Well, see, that's then you're getting into purpose and you're getting into intent.

46:32 - I'm try to stay away from purpose and intent,

46:34 - and I'm trying to figure out what the ordinance,

46:36 - what an ordinance can do, can an ordinance say in the city of Philly

46:40 - or elsewhere, we're not just talking about this.

46:41 - This case is not just about the city of Philadelphia,

46:43 - but can a municipality say, you know what, we love our trees.

46:47 - We don't want trees being used to create guns.

46:49 - Any trees, harvested in, Lycoming County,

46:54 - cannot be used for purposes of manufacturing a firearm.

46:58 - And you would say. Nope.

47:00 - Because that's that's firearm.

47:02 - That's that's regulating the ownership of a firearm,

47:04 - even though the target is saving trees from firearm firearms

47:08 - to a certain extent, you're maybe a question for another day,

47:11 - but I think, you know, a broader you know, when you're

47:13 - if you want me to answer the question,

47:15 - we're looking at the purposes of the Uniform Firearms Act

47:17 - and what they intended, looking at the words of the Uniform Firearms Act.

47:20 - I'm not looking at the purpose.

47:21 - The words are the best indication of the intent.

47:23 - I'm looking at the words.

47:25 - Yeah, well,

47:26 - and this ordinance is the easiest thing to look at to answer that question.

47:30 - Because when we start to speculate this ordinance that there's

47:33 - no I don't think anybody is going

47:34 - to dispute that this ordinance is addressing the manufacture of firearms.

47:37 - I don't think that's I'm trying to figure out the reach of your argument,

47:40 - because at some point in time, your argument does get a little hard

47:43 - to swallow.

47:45 - Is particularly in light of they understand, particularly

47:48 - in light of the polymer 80 case that I have at some point in time.

47:53 - You even the

47:54 - feds believe in a component part or potential.

47:58 - Part of that could become a firearm.

48:01 - Is a firearm.

48:02 - And I agree with your Honor, that there are things that fall outside

48:05 - the definition of firearms, that you would still be regulating firearms

48:08 - if you regulated holsters, for example, clearly not a firearm.

48:13 - No one's going to mistake a firearm for a holster.

48:15 - And yet, if the city were to say, we can start banning people

48:19 - from having holsters, they would be affecting how people

48:22 - carry firearms, how they possess firearms, how they transport firearms.

48:26 - They would be affecting a whole lot of areas

48:28 - that are specifically preempted, and they're not able to legislate it.

48:31 - And so I think that the easiest question is the one before you today,

48:35 - which is to say with this ordinance, are they intruding into the realm

48:39 - that they're not allowed to legislate in?

48:41 - And I think the answer to that is, yes,

48:43 - they're preventing people from making firearms.

48:46 - And so we don't have to look and.

48:50 - When we talk about purpose,

48:52 - and I heard you say, I want to look just at the text and not at the purpose,

48:55 - but I think the purpose is important because when I look at all

48:58 - the prior decisions that look at field preemption in the field of firearms

49:02 - and express preemption, what they're trying to figure out is

49:05 - what was the legislature trying to do here?

49:07 - What was the legislature trying to preempt?

49:09 - And obviously the text is the best indication of that.

49:13 - But if if there's questions based on the text,

49:17 - then we look at the purpose of the legislature.

49:19 - You would agree that it's speaking generally, not just with reference

49:23 - to this.

49:24 - You would agree that there, there, there may be in no doubt our times

49:29 - when, say, we have to think of them as a singular, really hit the legislature,

49:35 - was trying to do

49:36 - something and just failed to do it.

49:39 - In other words, we could grant, by argument here.

49:43 - We could grant that they power it.

49:47 - Tried to preempt the field, but they didn't.

49:51 - And therefore we have to analyze express preemption or not.

49:55 - Right. So,

49:58 - they they didn't put the word manufacturer

50:00 - in, for example. So,

50:05 - by hypothesis, we have to ask the question here.

50:08 - One of the questions we have to ask is whether,

50:12 - meant manufacturer

50:14 - is subsumed within ownership and possession.

50:17 - Right.

50:18 - That that is one of the questions that has to be answered in this case.

50:21 - And as you I think, pointed out previously,

50:24 - that question becomes more important

50:25 - if you were to decide that field preemption doesn't apply.

50:27 - And in turn, then the question of whether that's defeated

50:32 - by the words carried

50:34 - or transported at the end of the subsection,

50:38 - which again follow immediately after ammunition or ammunition components.

50:42 - But you would agree that we have never actually interpreted

50:45 - the words of this statute.

50:48 - You've

50:49 - certainly never drilled it down the way you're drilling down on it today.

50:52 - What we have never interpreted the words in this statute.

50:55 - We've we've issued opinions that broadly proclaim

51:01 - what the intent of the legislature was without doing the predicate task

51:06 - that we do in determining intent, which is looking

51:09 - at the words of the statute, that that is true.

51:13 - But I also want to point out that in your other

51:15 - outside of the context of firearms in your other field preemption decisions,

51:19 - you've gone beyond the words of the statute

51:21 - and looked at the intent of the legislature.

51:23 - We weren't we weren't faced with this particular kind of a circumstance.

51:27 - You were not. Yeah.

51:28 - Okay, Mr. Ambler, you have.

51:30 - Oh, sure.

51:32 - A very interesting article or.

51:34 - Great. Thank.

51:39 - And that

51:40 - is pointed out, for instance, is that.

51:46 - Suppose.

51:51 - And so,

51:52 - to express what an example legislation that was inside

51:57 - the legislature has an impact on what now.

52:01 - Has anyone now.

52:06 - Thank you for the question.

52:07 - I've seen other instances

52:09 - where the courts ruled in a certain way, and the court discussed this.

52:12 - I think in the last argument section here in Philadelphia, where they said

52:16 - the legislature responded very quickly.

52:17 - Within 30 days, there was new legislation to address

52:21 - something that they either thought we got right or thought something of it.

52:24 - They thought we got wrong here.

52:25 - Ortiz has been the law of the land for 30 years, and we haven't.

52:30 - We've seen multiple bills proposed that purport

52:33 - to remove preemption and remove the field of firearms preemption.

52:38 - Those bills haven't passed.

52:40 - And so I think that is it's not as good as the text that's before you, but

52:44 - that is indicative that the legislature understands there to be field preemption

52:50 - counsel, which

52:52 - would you agree that

52:54 - municipalities, cities, etc.

52:57 - could legislate to enhance the,

53:03 - intent of this section?

53:07 - I think that when when there is field preemption,

53:09 - the only local legislation that would be in any way, shape or form

53:14 - allowable to to exist would be things that merely mirror

53:17 - what the state preemption, the state statutes already have.

53:21 - And if it's merely a mirror image, then, as Weber

53:24 - says, it fades into innocuous, destitute.

53:28 - Any other questions?

53:30 - All right. Thank you very much.

53:31 - How about how about his, waiver of the constitutional issue?

53:36 - I would be happy to answer any questions that you have on that.

53:39 - Other than that, I'm happy to stand on my papers for that.

53:41 - I just get a clarification if I understand,

53:44 - because there were some removal issues going on here.

53:46 - As I understand it, your client's position is simply

53:51 - you're relying

53:52 - you're you're asserting a state constitutional claim,

53:56 - but you're saying that it's that you're not asking for an expanded

53:59 - right beyond what the Second Amendment provides.

54:01 - In other words, you're

54:02 - arguing it's coterminous protections with the second Second Amendment.

54:06 - You're not arguing any.

54:07 - That's right. We're not asking for a departure.

54:09 - And under our case law, doesn't that mean that what you have is a federal claim?

54:14 - No, I think that there's case law that, and we cite this case

54:18 - law throughout our papers that says you can that's the default.

54:23 - The federal claim is essentially a four,

54:25 - but it can be supplied through the state constitution.

54:29 - You don't have a federal claim.

54:31 - You're specifically just about disavowing any, Second Amendment,

54:36 - issue. In this case.

54:38 - We did.

54:39 - So, what you're arguing is, the Pennsylvania Constitution

54:44 - and the state constitution provide the same rights, correct.

54:49 - And under our case law, doesn't that mean that

54:52 - what you are doing is asserting a federal right?

54:56 - I don't have any doubt.

54:57 - I mean, I like the idea that somebody would come to the court and say,

55:02 - I'm relying only on the Pennsylvania Constitution.

55:05 - Here are my arguments in favor of the Pennsylvania Constitution.

55:08 - It's not what you're doing.

55:09 - You're saying the Pennsylvania Constitution

55:12 - and the federal Constitution are coterminous under our case law?

55:16 - Doesn't that mean that what you have is a federal constitutional claim?

55:20 - I don't I don't think so.

55:22 - I think that when you look at the case law, what they say is

55:26 - you can use the state constitution as the vehicle and you can still address

55:31 - federal case law, but it's not a federal constitutional claim at that point

55:35 - because we can't go below the federal.

55:37 - You can't go below the federal floor.

55:39 - So so you have a you have a Second Amendment claim.

55:44 - You're just not asserting it through the correct through the vehicle.

55:47 - That is the Pennsylvania Constitution.

55:49 - And when put to our courts in that context,

55:53 - isn't it our history to say what you have is a federal claim?

55:58 - I may have to provide you're on our letter on that to

56:01 - to specifically I it's not a question I have looked

56:04 - at to answer that

56:07 - isn't that inherent in

56:09 - in all of our case law when we deal with,

56:13 - situations where somebody says,

56:17 - you know, the Second Amendment and the Pennsylvania

56:19 - Constitution, are called into question in this case.

56:23 - And then the argument is based upon federal law.

56:27 - The argument is then then our courts have said you have a federal claim.

56:33 - You have not advanced an argument,

56:36 - supporting a state constitutional claim.

56:39 - That's what I'm understanding your argument to be is you want us

56:43 - to follow federal law, including, the,

56:48 - protocol of looking at the history,

56:51 - I and, what was, in effect at the time

56:54 - and use that to interpret the Pennsylvania Constitution.

56:58 - That's not how we interpret the Pennsylvania Constitution.

57:01 - Our argument is that the Pennsylvania Constitution

57:04 - can't fall below the federal courts to give it.

57:06 - That's why I think what you have is a Second Amendment claim.

57:10 - And I maybe it's a distinction without difference, Your Honor, I,

57:14 - I think it's the second part where you're saying,

57:16 - therefore, you have a federal claim that I'm less sure of.

57:20 - Certainly your cases have analyzed

57:22 - the federal claims, but does that make it a federal claim at that point?

57:26 - And maybe, as I said, this is a distinction without difference,

57:28 - but I don't think that makes it a federal claim at that point.

57:31 - I think that the the federal case law is relevant to assessing

57:36 - what the law is, which we know would be a minimum law under Pennsylvania.

57:40 - The Pennsylvania Constitution.

57:43 - All right.

57:43 - I think you've answered all of our questions now, Mr.

57:46 - Ambler, thank you very much.

57:47 - Well done.

57:48 - Let's hear from miss McNaughton.

57:55 - Just because the appellant took an hour

57:59 - does not mean you need to take an hour.

58:03 - Of course, we'll give you all the time that you need.

58:05 - I think that's more in the court's hands on line.

58:08 - Thank you so much.

58:10 - So may it please the court?

58:12 - I'm Jennifer McNaughton, on behalf of the city of Philadelphia.

58:15 - I'd like to.

58:16 - I was planning to address why 6120 is not feel preemption

58:20 - and then to go on to discussing this particular ordinance

58:22 - which will pull the microphone closer, please.

58:25 - Is that better?

58:26 - Oh hi there. Yeah.

58:27 - Thank you. Okay.

58:30 - First I'd just like to correct or respond

58:32 - to something that council said about Ortiz.

58:34 - So Ortiz was saying that that decision implicated,

58:37 - firearm parts or accessories that's not mentioned anywhere in Ortiz.

58:42 - The Ortiz decision only pertains to these, Philadelphia

58:46 - and Pittsburgh ordinances that were banning assault weapons.

58:49 - And I even went back to the Commonwealth Court decision.

58:52 - It doesn't say anything about any other portions of that ordinance.

58:56 - So we don't have the court's final word on accessories or components yet.

59:01 - We also don't have the court's

59:02 - final word on field preemption as, as the questions reflected here.

59:06 - And we have to look at the words of the statute

59:09 - on that question and hear the field preemption.

59:12 - It's not expressed in the statute.

59:14 - It doesn't say the word field.

59:16 - Neither is it implied in the text or in the structure of the UFA.

59:20 - Now, if you're looking at the text of section 6120,

59:25 - if it were really field preemption, a lot of the language

59:27 - in that section would be superfluous.

59:30 - Now, field preemption is a broad concept.

59:32 - It's broad preemption.

59:33 - But section 6120 it lists it's specific.

59:37 - It lists specific activities that cities can't regulate.

59:40 - It was the specific items that are cover the firearms ammunition, etc..

59:45 - And it includes those two lawfulness qualifiers.

59:47 - So and maybe to clear up some hopefully clear up some confusion there.

59:52 - We can't regulate the lawful ownership of guns and we can't regulate

59:57 - 564 if the person who lawfully owns the gun say, somebody who has a license,

01:00 - 04.233 carries it

01:00 - 07.236 for an unlawful purpose, say robbing a bank,

01:00 - 09.405 we accept that.

01:00 - 12.709 But that the fact that there are specifics listed in the statute,

01:00 - 16.446 the preemption clause, indicates that that is what the General

01:00 - 18.081 Assembly intended to preempt.

01:00 - 20.617 If Council if you,

01:00 - 21.884 that's fair enough.

01:00 - 24.887 But if you,

01:00 - 28.958 manufacture or,

01:00 - 32.762 acquire,

01:00 - 37.066 one of these kits,

01:00 - 41.070 and you're, you're legislating in the area, how are you

01:00 - 45.375 not in any manner regulating the lawful ownership of possession?

01:00 - 48.444 Well, there's there's two responses to that.

01:00 - 51.247 So first of all, manufacturing is not included in the statute.

01:00 - 54.250 So if we're not in the world of field preemption, we're

01:00 - 57.587 we're legislating outside of what's preempted.

01:00 - 01.257 Secondly, we're not regulating the things that are firearms.

01:01 - 04.060 And to be clear about what this ordinance does,

01:01 - 08.498 it's it's keyed off of the UEFA's own definition of firearms,

01:01 - 10.233 and it is getting at things

01:01 - 13.503 that are not yet complete enough to meet that definition.

01:01 - 18.408 So the the if the 80% rule is, is what's adopted

01:01 - 23.913 and that's clarified through regulation, we're up to the line as council said.

01:01 - 27.917 But we explicitly said our our ordinance is not crossing that line

01:01 - 31.554 to regulate things that actually are complete enough to be firearms.

01:01 - 34.691 I just to follow up briefly, I know what you're trying,

01:01 - 36.826 what you're what your council was trying to do here.

01:01 - 40.196 I guess I think we can see that the question is whether

01:01 - 44.100 in in regulating in some manner,

01:01 - 48.604 the manufacturer of one of these ghost guns,

01:01 - 52.442 you have in any manner,

01:01 - 56.079 regulated the lawful

01:01 - 59.082 ownership or possession of a firearm.

01:01 - 02.385 So, I mean, does it in the course of this process,

01:02 - 06.222 a converting one of these kits, have you, in fact

01:02 - 09.892 come to own or possess a firearm?

01:02 - 13.696 The ordinance switches off at the point when it becomes a firearm.

01:02 - 17.233 And the ordinance also wouldn't apply to, say, a ghost gun

01:02 - 18.835 that was built outside of the city.

01:02 - 21.738 And transported in the completed product is not regulated.

01:02 - 23.773 We're hands off at that point.

01:02 - 28.044 It only regulates the processes, the tools, the kits, the parts

01:02 - 31.948 up to the point when it becomes a firearm under the UFA zone.

01:02 - 32.915 I don't know how you say

01:02 - 36.919 that your ordinance says no person unless licensed to manufacture firearms

01:02 - 40.089 under federal law, shall use a 3D printer to create any firearm,

01:02 - 44.160 and if they do it, they've created a

01:02 - 47.930 if to violating the statute they create a firearm, not create

01:02 - 52.201 a glob of plastic, not create a piece of wood.

01:02 - 55.671 This ordinance prohibits the manufacturing of firearms.

01:02 - 59.976 So for the for the 80% kits it's probably an easier question

01:02 - 04.247 because no I'm let's talk about the part that I'm just talking about 3D printing.

01:03 - 04.413 Yeah.

01:03 - 08.184 One says use you can in Philadelphia.

01:03 - 11.187 You cannot use a 3D printer to create a firearm.

01:03 - 12.822 Right.

01:03 - 15.958 That's so the process of manufacturing

01:03 - 18.961 is not covered in the ordinance in the in the UFA.

01:03 - 22.565 And then as far as manufacturing is covered in the UFA, who, who may

01:03 - 28.171 or may not manufacture, right, as far as licensed licensed manufacturers,

01:03 - 32.208 or I may be getting off track under 6160 105 okay.

01:03 - 36.479 6105 specifically talks about who may or may not manufacture a firearm.

01:03 - 40.616 And you now passed an ordinance that says no 1st May manufacture

01:03 - 43.619 a firearm with a 3D printer unless they have a federal license.

01:03 - 44.187 Right.

01:03 - 48.658 But the thing is that the we're using the definition of firearm in the UFA

01:03 - 52.728 because we don't want to impinge on that so well.

01:03 - 56.299 But you said firearm so you can't create a firearm with a 3D printer period.

01:03 - 58.801 So so I have a 3D printer.

01:03 - 04.140 I, I do whatever a 3D printer does and a lo and behold, I have a firearm.

01:04 - 07.577 I literally have a firearm now in my possession, in my ownership.

01:04 - 09.745 I have violated the ordinance.

01:04 - 13.783 That's not a that's not a part short of a firearm.

01:04 - 15.351 That's a firearm.

01:04 - 15.618 Right.

01:04 - 18.120 It's it's the process though that's regulated here.

01:04 - 21.090 No, it's the completion of it, the creation of it.

01:04 - 24.427 It's not you're not just saying you're not just regulating the process of it.

01:04 - 26.562 You're relating the the end result.

01:04 - 30.132 Just having a 3D printer isn't a violation of the ordinance.

01:04 - 34.170 Creating a firearm with a 3D printer is a violation of the ordinance.

01:04 - 36.572 So I need for you to prove a violation of ordinance.

01:04 - 39.809 You need to have a completed regulated firearm.

01:04 - 41.310 Right.

01:04 - 43.813 Well, that's the that's the purpose of the of the ordinance

01:04 - 45.748 is to prevent people from creating these things.

01:04 - 48.017 But we tried to draw the lines so that we weren't.

01:04 - 49.485 Where's the line?

01:04 - 49.752 Right.

01:04 - 52.088 The line is where the General Assembly said it.

01:04 - 55.024 And the definition of firearm, it has to be something that is can

01:04 - 58.194 can be readily converted to expel

01:04 - 01.497 a projectile in your ordinance regulates

01:05 - 04.467 a firearm,

01:05 - 07.470 the creation of it, the existence of it,

01:05 - 10.306 it doesn't I mean, that's that's what I'm trying to figure out.

01:05 - 14.310 I mean, I agree with you under Bondy and Vandergriff and the way

01:05 - 17.914 the firearm definition is changing, I could see

01:05 - 22.952 local municipalities being able to regulate up to a point.

01:05 - 26.422 Even the United States Supreme Court has said, we're not touching this right now.

01:05 - 30.159 We're going to wait to see where the regulation point is.

01:05 - 31.494 But you don't.

01:05 - 34.463 I you say you go up to the line, I'm not sure where you're going up

01:05 - 34.964 to the line.

01:05 - 38.267 Use a three dimensional preowned to create any firearm.

01:05 - 40.036 To prove a violation of that ordinance.

01:05 - 40.970 You would have to

01:05 - 45.541 you would have to prove the existence of a firearm, not some line before it.

01:05 - 47.343 Do you understand what I'm asking?

01:05 - 49.078 I do that almost sounds like an ask.

01:05 - 51.013 Apply a challenge to the ordinance

01:05 - 54.150 if we if we start enforcing it hasn't been enforced yet.

01:05 - 57.186 But but you have the word. You don't say.

01:05 - 58.387 Let me let me show you this way.

01:05 - 03.759 You if you said use a 3D printer to create something short of a firearm,

01:06 - 07.663 then then I could understand your line.

01:06 - 10.166 I could say, yeah, you're drawing the line short

01:06 - 13.235 of a firearm, but your ordinance doesn't.

01:06 - 14.937 Your ordinance goes all the way to the line.

01:06 - 16.706 It says firearm.

01:06 - 18.941 Well, that's again that's that sounds like the as applied

01:06 - 20.810 challenge, which isn't what we're dealing with here.

01:06 - 24.847 Well, what would you regulate under the what what would be

01:06 - 28.217 a violation of one A

01:06 - 31.754 that would not yield a firearm?

01:06 - 36.859 A. So again, I think this is

01:06 - 41.964 the 3D printing aspect isn't necessarily the focus of the ordinance,

01:06 - 46.235 but it's the idea is that we are trying to stop the process

01:06 - 49.238 before it starts, before a firearm comes in.

01:06 - 51.040 Well, then you would just bar 3D printers. Yeah.

01:06 - 54.977 Why wouldn't you just say, well, you're not allowed to own a three 3D

01:06 - 58.180 printer capable of making a firearm.

01:06 - 01.617 Section 6120 doesn't say we can't do that.

01:07 - 03.219 Right. But that's not what your ordinance says.

01:07 - 04.920 No, the ordinance could.

01:07 - 07.223 At the chief's point, your ordinance could say I.

01:07 - 09.158 In fact, I like that phraseology.

01:07 - 12.194 You cannot in the city of Philadelphia,

01:07 - 15.431 you cannot own a 3D printer capable

01:07 - 19.201 of creating a firearm without a license by the city of Philadelphia.

01:07 - 23.506 That that's a completely different ordinance than what you drafted.

01:07 - 24.206 It is.

01:07 - 28.177 And again, that wasn't an advisory opinion that we would approve.

01:07 - 30.813 Just so you know.

01:07 - 34.517 No, I understand I understand it's just a hypothetical question, right?

01:07 - 37.353 No. And the intent here or the attempt here

01:07 - 40.322 was to to try to stay outside of preemption.

01:07 - 43.692 And still, if you were doing that, you wouldn't have used the word firearm

01:07 - 47.563 or you would have qualified it as not yet a firearm.

01:07 - 51.901 That's, that's that's how you stay outside the line of, of of regulating a firearm

01:07 - 55.671 along those lines, if your, subsection

01:07 - 01.277 A said use a three, dimensional printer to create any piece or part

01:08 - 04.980 or attachment to a firearm,

01:08 - 08.617 doesn't that get you the same end goal?

01:08 - 13.422 Pieces or parts are not firearms under the UFA?

01:08 - 14.390 And that's what I'm saying.

01:08 - 18.427 If you didn't use the phrase create any firearm and instead said create

01:08 - 22.698 any piece or part or attachment to a firearm,

01:08 - 25.134 I think, yeah, I think that would have accomplished

01:08 - 28.971 the same purpose that that we just we want to stop the process before

01:08 - 30.606 it gets to the point where we're preempted.

01:08 - 35.978 What what significance to you attach to the inclusion of the phrase

01:08 - 40.983 when carried or transported for purposes not prohibited in the statute?

01:08 - 46.755 So my understanding of that phrase is that and these two lawfulness qualifiers,

01:08 - 50.159 by the way, are clearly indicative that this is not field preemption

01:08 - 51.427 because you don't need those.

01:08 - 54.096 If we're preempting everything, firearms.

01:08 - 58.100 But the first awfulness qualifier deals with lawful ownership possession.

01:08 - 59.902 So meaning do you have a license to carry.

01:08 - 02.004 Are you, you know, compliant. You're not a felon.

01:09 - 06.242 So when carried or transported for purposes,

01:09 - 09.778 I understand that phrase to mean you can't take your lawfully owned,

01:09 - 12.181 licensed firearm and go rob a bank with it.

01:09 - 15.484 So it's the purpose of the carrier transport

01:09 - 19.054 that is subject to that second lawfulness qualifier.

01:09 - 21.357 Say that again.

01:09 - 23.392 So we have two qualifiers here.

01:09 - 26.762 The first one says lawfully owned possessed carried.

01:09 - 29.098 That means you are licensed.

01:09 - 30.533 You are you are not a felon.

01:09 - 33.536 You under state law, you are able to carry a firearm.

01:09 - 36.005 The second one says when carried, are

01:09 - 39.542 for purposes not prohibited by the laws of the Commonwealth.

01:09 - 44.647 So if you take your legally owned licensed firearm and go rob somebody with it,

01:09 - 48.851 you are carrying that purpose that that firearm for an unlawful purpose.

01:09 - 49.151 Okay.

01:09 - 52.655 What about a firearm that's in somebody's desk drawer locked up?

01:09 - 58.227 Is that capable of being regulated by the city or put put a different way,

01:09 - 01.764 a firearm sitting in someone's home,

01:10 - 04.767 in a desk drawer that is not locked.

01:10 - 07.303 Right. Can you regulate that?

01:10 - 10.339 If we're focusing on that latter phrase, that's that's that's talking

01:10 - 11.473 about the carry and transport.

01:10 - 13.409 So it's not getting at

01:10 - 16.478 there's no lawful or unlawful purpose to having it in your desk drawer.

01:10 - 20.015 So you're, you're of the opinion that it means,

01:10 - 25.821 the regulation cannot regulate firearms when being carried or transported.

01:10 - 26.689 Right.

01:10 - 29.825 That's one of the qualifiers there that we, when carried,

01:10 - 32.828 are transported for purposes that are not unlawful.

01:10 - 34.730 But that qualifier indicates

01:10 - 36.932 an intent to

01:10 - 40.936 allow the city to legislate things that are already unlawful.

01:10 - 43.005 So consistency with states

01:10 - 46.141 that's different than to carry two transported I'm sorry.

01:10 - 49.812 That's different than the phrase when carried or transported

01:10 - 52.781 I think I think that point encompasses everything.

01:10 - 57.519 So the possession, ownership, transportation, just the fact that we can

01:10 - 02.391 there's those two qualifiers there indicate that there was an intent to allow

01:11 - 07.663 harmonious local legislation of the things that are listed in the statute.

01:11 - 11.467 That means this isn't field preemption, because what field preemption

01:11 - 15.070 is, is we can't even legislate something that is consistent.

01:11 - 17.172 We're just not allowed in the area.

01:11 - 22.845 Let me maybe you could explain to me how you think the qualifier, when carried

01:11 - 28.651 or transported, impacts the issue before us, which is the manufacture.

01:11 - 31.654 Well, it's

01:11 - 36.358 it's not directly applicable to manufacture is manufacture is not carry.

01:11 - 39.295 Let's let's that's true.

01:11 - 40.529 Okay. That's a different issue.

01:11 - 44.400 Manufacture is not mentioned in, in the series of

01:11 - 47.436 regulate the conduct.

01:11 - 50.706 But if, we read, carried

01:11 - 55.144 or transported to modify, everything that precedes act,

01:11 - 59.682 how does that impact the manufacture of the firearm?

01:12 - 03.152 I mean, the firearm is not being carried

01:12 - 06.121 or transported in the manufacturing process.

01:12 - 07.389 I don't think it does.

01:12 - 08.691 I don't think it has anything to say

01:12 - 11.694 about manufacture one way or the other, because, as Your Honor

01:12 - 15.164 said, it's a it's not a transporter carry process.

01:12 - 18.767 But let's assume for the sake of this discussion

01:12 - 23.072 that your opposing counsel is correct, that manufacture is subsumed

01:12 - 25.841 in the concept of ownership and possession.

01:12 - 28.010 Then you add the

01:12 - 31.313 qualifier when carried or transported,

01:12 - 35.050 does that preclude the application of this

01:12 - 39.388 to manufacture, since being carried or transported is not,

01:12 - 44.360 inherent in the manufacturing process?

01:12 - 49.365 I guess I'm having trouble understanding how the two would

01:12 - 52.601 interact, because, as Your Honor said, carrier transport doesn't.

01:12 - 56.071 It's not something you do while manufacturing.

01:12 - 58.107 Well, that would be the answer, wouldn't it?

01:12 - 01.210 I think says the manufacture of the firearm is not,

01:13 - 05.414 in the carrying or transport of it.

01:13 - 06.181 That's correct.

01:13 - 10.686 If I were if I were if I were using a 3D printer and I created a create,

01:13 - 13.689 assuming I could create a full firearm in a 3D printer,

01:13 - 16.692 how would I get it out of the 3D printer and put it in my gun safe

01:13 - 18.694 and put it?

01:13 - 21.096 I'm sorry, I can put it in my gun safe.

01:13 - 24.099 How would I, how would I, how would I get it from the 3D printer

01:13 - 25.701 in my basement to my gun?

01:13 - 27.469 Say it in my back in my bedroom.

01:13 - 28.504 I see what you're saying.

01:13 - 32.274 I, I think there's there's a difference between picking up and carrying

01:13 - 33.575 versus carry.

01:13 - 36.712 The term a term of art carrying a firearm, which is,

01:13 - 40.015 it's not transporting either.

01:13 - 43.018 I'm not transporting it from one part of my house to another.

01:13 - 46.688 I don't know that the that that's uncomfortable.

01:13 - 47.556 Let me ask you this.

01:13 - 49.958 Just let me ask you a different question.

01:13 - 52.327 What are the ways one a person can come

01:13 - 55.330 into possession of a firearm

01:13 - 56.732 to come into possession?

01:13 - 00.869 How do I how do how does a person come into possession or ownership of a firearm?

01:14 - 04.306 Well, clearly the General Assembly was considering

01:14 - 07.309 transfer as, as the way that that happens.

01:14 - 08.911 Yeah. That's. Yeah. Right.

01:14 - 11.480 So somebody transfers me their their their gun.

01:14 - 13.415 Yeah. Okay. What's another way.

01:14 - 16.885 Manufacturing is another way to come into possession for that.

01:14 - 19.421 So that's a manner of coming into possession of a firearm.

01:14 - 21.490 Is manufacturing right.

01:14 - 24.893 But but it's in any manner language kicks in and.

01:14 - 27.763 Right. So, so the in any manner language

01:14 - 30.399 I think that captures

01:14 - 32.901 more the fact that there's a lot of different ways

01:14 - 34.536 that municipalities can regulate.

01:14 - 37.539 Like we don't we can't we can regulate by directly

01:14 - 41.977 saying, you can't do this, but we can also regulate indirectly.

01:14 - 44.413 So by taxation is the prime example.

01:14 - 46.915 Taxation influences behavior.

01:14 - 50.853 And I think that language in section one, section 6120, it's

01:14 - 55.657 not some sort of hidden field preemption language as as Gao is arguing,

01:14 - 59.728 it's getting at the fact that these things that are listed in the statute,

01:15 - 02.498 we can't regulate them directly or indirectly.

01:15 - 06.969 Well, if I can come into possession of a firearm by manufacturing, it,

01:15 - 10.506 by accepting it as a transfer, a gift,

01:15 - 13.942 by purchasing it from a licensed dealer,

01:15 - 16.945 and let's say those are the only three ways that I can do it.

01:15 - 21.350 Would a manner of regulating possession be one that cuts one of those off?

01:15 - 24.286 Would that be a manner of regulating possession?

01:15 - 26.388 If I eliminated one way of possessing?

01:15 - 29.024 I think if there

01:15 - 32.027 were an extreme example that that say we

01:15 - 37.199 we prohibited people from buying firearms that would be affecting.

01:15 - 39.101 That's one of the three pillars, right?

01:15 - 41.203 It's affecting acquisitions. So you couldn't do that.

01:15 - 43.505 You could knock that pillar off.

01:15 - 46.508 You couldn't you couldn't pass an ordinance that bars

01:15 - 50.245 coming into possession or ownership by way of purchasing.

01:15 - 53.248 But you could knock off the one of the other pillars.

01:15 - 56.118 You can't come into possession or ownership by manufacturing.

01:15 - 59.922 That's a pillar you can knock off in the in the expressed words of the author

01:16 - 00.889 of the statute.

01:16 - 03.392 No, but that's that's just not covered.

01:16 - 06.194 What's covered is trans fracturing is not mentioned.

01:16 - 07.863 Right. Manufacturing is not mentioned.

01:16 - 10.866 But getting back to justice, pardon me for interrupting and getting back

01:16 - 14.770 to Justice Robson's question about ten minutes ago. Once

01:16 - 18.774 it's manufactured, even under the words of your ordinance, it has to exist.

01:16 - 24.379 And once you exist, once it exists, you have possession or ownership of it.

01:16 - 25.447 So doesn't that,

01:16 - 27.849 in essence render the

01:16 - 33.722 manufacturing the emission of, manufacturing unimportant?

01:16 - 36.692 Or, you know, maybe, maybe that's not dispositive,

01:16 - 41.496 because once you've manufactured a three day 3D printer, it exists.

01:16 - 42.664 Right?

01:16 - 44.032 I think that's what I was trying to get at,

01:16 - 47.703 is that once, once the gun, it exists, it is possessed.

01:16 - 51.073 That's when section 6120 kicks in.

01:16 - 53.709 But the the it's interesting.

01:16 - 57.479 The General Assembly used the word transfer because at that time

01:16 - 03.452 when section one, 61, 61, 20 was enacted, ghost guns just weren't a thing back

01:17 - 06.421 then, for 3D printers were certainly not a thing back then.

01:17 - 09.524 So the general Assembly just wasn't thinking

01:17 - 13.328 about people buying these, these kits or 3D printing something.

01:17 - 15.998 Well, of course not. I mean, that's that's the point.

01:17 - 18.000 But the question is

01:17 - 20.435 the question is not whether they were thinking about ghost guns.

01:17 - 21.637 And the question is not even whether

01:17 - 24.039 they should be doing something about ghost guns. Right.

01:17 - 27.776 There's, there's that's that that's a completely different question.

01:17 - 29.678 And certainly something we recognized in

01:17 - 33.015 Ortiz that, you know, the General Assembly could act to deal with

01:17 - 35.951 these new technologies and things like that.

01:17 - 39.021 But the question that's the question is what does the ordinance

01:17 - 43.558 we don't construe an ordinance by virtue of the current times.

01:17 - 47.262 And as much as we apply the current times to the ordinance, and in you're

01:17 - 50.465 just identifying one new mode of manufacture.

01:17 - 54.503 Now, it's a mode of manufacture that can escape a lot of safety

01:17 - 57.639 things that we would like in our society, in our community.

01:17 - 02.744 But going back to my point three ways transfer, purchase,

01:18 - 06.081 manufacturer, all three ways

01:18 - 09.418 you recognize or ways to come into ownership of possession of a firearm.

01:18 - 10.419 Correct?

01:18 - 11.253 That's correct.

01:18 - 14.256 And your your ordinance knocks out one of those ways.

01:18 - 19.261 So to clarify a couple points to clarify, the ordinance does not knock out

01:18 - 20.162 all manufacturing.

01:18 - 26.735 It's very tailored to this homemade firearms niche method of manufacturing.

01:18 - 29.271 And it exempts the federally licensed manufacturers.

01:18 - 31.740 So if like Smith and Wesson wants to open in Philadelphia,

01:18 - 33.308 the ordinance has nothing to say about that.

01:18 - 37.879 It does knock out all manufacturing because we're specifically it knocks out

01:18 - 40.949 it knocks out personal manual manufacturing of your personal weapon,

01:18 - 44.086 which you would, you understand, is permitted under federal and state law.

01:18 - 48.990 It's a it's a pretty niche method of coming into possession of a firearm okay.

01:18 - 51.159 So but it's still a way it's still a man.

01:18 - 52.127 It is a way.

01:18 - 55.997 But these plaintiffs have never alleged that their ability to possess

01:18 - 59.901 or come into possession of firearms generally has been burdened.

01:19 - 02.971 That they've only alleged that this specific niche

01:19 - 06.041 method of doing so is now unavailable as well.

01:19 - 09.077 But that's like saying you could pass an ordinance that bars a certain firearm.

01:19 - 12.347 What we haven't said you can you can't come into possession of all firearms.

01:19 - 14.316 We're just going to outlaw ten millimeter pistols.

01:19 - 18.787 So you still we're not burdening your ability to own a firearm.

01:19 - 22.090 We're just burdening your niche ability to own this particular firearm.

01:19 - 24.593 Well, that's more directly involving ownership.

01:19 - 26.762 Like the Ortiz case with a gun ban.

01:19 - 31.233 This is again, the section 6120 doesn't say acquire.

01:19 - 35.103 It says transfer transfers once you use

01:19 - 38.440 in the wording of your ordinance.

01:19 - 42.778 3D printer or any additive manufacturing process

01:19 - 46.381 or you convert an unfinished etc..

01:19 - 51.553 Is that is that firearm because you're using the word firearm.

01:19 - 55.390 Is that firearm not owned or possessed.

01:19 - 56.858 Right.

01:19 - 00.495 But it's, it's accessed in the, in state of nature.

01:20 - 02.497 It's owned or possessed isn't it.

01:20 - 02.831 Sure.

01:20 - 05.834 But the ordinance targets the process

01:20 - 10.572 of, of taking it from this uncompleted state to a completed state.

01:20 - 13.875 It doesn't purport to regulate completed ghost guns at all,

01:20 - 15.877 but how do you separate those two?

01:20 - 19.080 You. It's hard for me to understand how

01:20 - 22.250 you can prevent the creation

01:20 - 28.590 of a firearm with the 3D printer, but not affect the actual holding and,

01:20 - 32.460 ownership of it, possession of it once it's completed.

01:20 - 37.165 Because you're contemplating it will become a completed firearm.

01:20 - 38.033 Right?

01:20 - 39.334 Well, this is true.

01:20 - 43.605 But again, the ordinance doesn't try to regulate the completed gun.

01:20 - 46.007 So somebody wants to buy a ghost gun

01:20 - 49.010 at a gun show and bring it into Philadelphia.

01:20 - 51.079 The ordinance has nothing to say about that.

01:20 - 54.149 It's pulled back from that point, and it's limited

01:20 - 58.186 to the manufacturing process of something that is not yet a firearm.

01:20 - 02.357 So if they got some,

01:21 - 06.261 a piece of good purpose and you need a very,

01:21 - 11.666 this metal and they are very long,

01:21 - 17.906 Barrel.

01:21 - 20.809 That.

01:21 - 23.812 Did your sons do that?

01:21 - 27.983 I am not sure that that,

01:21 - 30.218 I would have to

01:21 - 32.687 drill down in the definition of additive manufacturing,

01:21 - 35.924 because I just don't know what the if the block of wood satisfies that.

01:21 - 38.960 But I think the intent at some point, at some point in time,

01:21 - 42.030 the unfinished block of wood would be considered an unfinished frame.

01:21 - 43.031 Right.

01:21 - 45.834 And so and that's, that's what we're, we're trying to get at

01:21 - 48.837 is that we want to stop the process before it gets to the point where

01:21 - 50.538 it becomes a firearm.

01:21 - 53.909 So do pieces come together. So.

01:21 - 59.614 After you decide

01:21 - 01.116 I think it it

01:22 - 05.720 the, the difficulty here is that this is an area of evolving regulations.

01:22 - 09.291 And so like I don't know to what extent the block of wood would be considered

01:22 - 12.928 if it's the 80% line under our shop.

01:22 - 17.399 Yeah it's, it's possible.

01:22 - 20.402 But again I don't know exactly where in that hypothetical

01:22 - 25.140 if the, that thing that you're describing is going to cross the line.

01:22 - 28.076 Well it doesn't matter. It doesn't matter.

01:22 - 29.911 It doesn't matter where it crosses the line.

01:22 - 33.181 Because you say the line is before it becomes a firearm.

01:22 - 39.254 So, so it doesn't matter at any point in time before it.

01:22 - 42.991 You can actually, at least according to your claim on the ordinance,

01:22 - 46.928 at any point in time before the gun can expel a projectile under force,

01:22 - 51.066 that would be prohibited under the ordinance

01:22 - 53.668 right before the point where it could be readily converted.

01:22 - 54.002 Right.

01:22 - 57.872 So so, so in Justice Monday's hypothetical,

01:22 - 02.744 what she is saying is it would be illegal under this ordinance potentially.

01:23 - 03.211 Right.

01:23 - 06.181 If we're if we're talking about things that are right from the block.

01:23 - 09.484 So it's broader than ghost guns, it's broader than 80% receivers.

01:23 - 13.221 It's it's impacting all all personal manufacture of firearms.

01:23 - 15.824 Wait I thought it was just 3D printers.

01:23 - 18.893 Oh no it's it's 3D printers and it's these kits.

01:23 - 22.530 But it's the it's the kits but not the ones that are passed.

01:23 - 24.599 I'm using 80% as the shorthand

01:23 - 27.602 because that's consistent with well, it's not just kits.

01:23 - 32.207 It says convert an unfinished frame or receiver into a finished firearm.

01:23 - 32.841 Right.

01:23 - 35.377 An unfinished frame or receiver could be the block of wood.

01:23 - 39.547 It could be, you know, you're you don't have like you don't say,

01:23 - 41.783 you know, 80% receivers here

01:23 - 45.220 which again is a is a term of art in the in the industry right now

01:23 - 49.824 your your ordinance bars the manufacturer of all firearms.

01:23 - 52.827 It may not bar the original carving of the wood,

01:23 - 56.197 but the minute it gets to an undefined point that you're saying

01:23 - 59.200 exists prior to becoming firearms, your ordinance kicks in.

01:23 - 02.637 Know the ordinance kicks in from the block of wood up to the 80%.

01:24 - 04.973 Okay, so what's even legal? Put a knife into a block of wood.

01:24 - 07.909 I mean, if that's the

01:24 - 10.912 I think it would be difficult for our police to enforce that.

01:24 - 13.915 Well, that's, that's that's a lot of comfort.

01:24 - 18.219 But that's again, that's section 6120 doesn't doesn't speak to manufacturing.

01:24 - 21.890 It does 6105 speaks to manufacturing specifically provides

01:24 - 25.226 who may or may not manufacture a firearm, which is indicative of the fact

01:24 - 28.663 that the General Assembly knows that manufacturing is something different

01:24 - 31.833 than ownership, possession, transfer, transportation.

01:24 - 35.170 Well, it's also it's also indicative of the fact that the General Assembly

01:24 - 37.338 is regulated in the field of firearm manufacture.

01:24 - 41.643 Already they've regulated the subject matter of firearms and firearm

01:24 - 42.277 manufacturing.

01:24 - 45.880 But to to go the extra step and to say this is field preemption,

01:24 - 49.784 that requires a lot more than what the statute is providing us.

01:24 - 52.887 Again, this course case law has said over and over again,

01:24 - 56.524 an intent to preempt the field must be crystal clear.

01:24 - 00.662 Well, if I pass if I have an ordinance that's or if I have a state law that says,

01:25 - 06.401 only people above the age of 22 years old

01:25 - 10.271 may, manufacture and sell their own,

01:25 - 14.509 Italian ice.

01:25 - 16.611 Can the Philadelphia pass an ordinance

01:25 - 19.614 that that says,

01:25 - 23.351 only people 30 and older can do it?

01:25 - 25.053 We know the state says you can do it

01:25 - 27.522 if you're younger than 30, but we're we're going to say 30.

01:25 - 30.024 And older. Would that be permissible?

01:25 - 32.961 I think that would be a conflict preemption analysis.

01:25 - 33.461 Okay.

01:25 - 37.132 So if you if you say if the federal if the statute says certain people

01:25 - 42.270 are barred from manufacturing firearms and you're

01:25 - 45.807 you pass an ordinance that bars even more, that's not conflict preemption.

01:25 - 48.276 That's not the argument that was made here.

01:25 - 51.279 And so there's been no claim of conflict preemption here.

01:25 - 53.882 I think

01:25 - 57.285 we'd have to hash that out in a case where it was actually litigated. But,

01:25 - 01.022 the the issue here is field preemption.

01:26 - 04.459 And this or the statute doesn't preempt the field.

01:26 - 06.961 The Italian ice.

01:26 - 09.931 I don't know that there's any preemption in the Italian ice realm, but,

01:26 - 13.601 that it's a separate it's a separate analysis of preemption.

01:26 - 16.304 So here we're focused on the text.

01:26 - 19.007 Here we're focused on what the General Assembly intended.

01:26 - 24.712 And the the bar for showing preemption is high generally because of home rule.

01:26 - 26.347 And this court.

01:26 - 27.949 I'm sorry. Pardon me. Counsel.

01:26 - 31.085 You concede you have a a tougher row to hoe with,

01:26 - 34.322 with express preemption than with field preemption.

01:26 - 38.726 In other words, if you clear the the field preemption hurdle,

01:26 - 43.831 you still have to confront the words of the statute and and explain

01:26 - 48.002 why you're not expressly preempted, which is the bulk of the question

01:26 - 51.573 you've been fielding here, I think I think it's the opposite.

01:26 - 54.976 I think it's an easier row to hoe if if this is not field preemption,

01:26 - 57.979 because then we can look at those express words of the of the statute

01:26 - 00.982 and say that says nothing about manufacturing.

01:27 - 04.352 So we have there's the no manufacturing preempted here.

01:27 - 07.322 And there's also the fact that we're not dealing with firearms,

01:27 - 09.490 which is the argument that won the day in Commonwealth court

01:27 - 11.993 despite them assuming it was field preemption.

01:27 - 15.964 So, no, I think that that ends the case of if we're not field

01:27 - 19.801 preempted, there's no preemption of regulation of manufacturing.

01:27 - 20.501 We're done.

01:27 - 25.006 So, so yeah, just

01:27 - 28.009 to get back to my what I was trying to emphasize is that

01:27 - 31.079 preemption generally, it's a it's a high standard

01:27 - 32.814 to show that local laws are preempted.

01:27 - 36.050 And and recently in Crawford, this court made that very clear.

01:27 - 39.120 And the types of things that we've been talking about today, this

01:27 - 42.123 this in any manner language,

01:27 - 44.993 just the fact that

01:27 - 48.396 the UFA has a lot of regulations of firearms, the structure,

01:27 - 52.100 the overall structure, those don't overcome that high hurdle.

01:27 - 56.671 And just to go back to the structure real quick,

01:27 - 01.209 this the Uniform Firearms Act is nothing like those heavily regulated industries

01:28 - 06.514 that this court felt meant the high burden of showing implied field preemption.

01:28 - 09.784 So things like banking or public utilities,

01:28 - 14.155 the those contain tomes of regulations.

01:28 - 16.491 There are technical industries.

01:28 - 21.029 There's in the case of alcohol, there's actually a state oligopoly

01:28 - 24.766 that takes up a huge portion of that market and brings it into the

01:28 - 26.234 hands of the government.

01:28 - 28.603 There's no state stores for guns.

01:28 - 31.239 Well, there's no highly technical regulations of guns.

01:28 - 34.776 There's some just like we have some regulation of elections

01:28 - 35.610 in the election code.

01:28 - 38.313 And that was found not to be field preemption.

01:28 - 41.883 So there's nothing here that indicates that clear legislative intent

01:28 - 46.321 to preempt the field, which means we are now in the realm of ordinary preemption.

01:28 - 49.891 And as we've been discussing, under the ordinary preemption analysis,

01:28 - 53.961 manufacturing is not covered in the plain language of the statute.

01:28 - 55.430 Is it possible, Council, that

01:28 - 59.300 the reason we don't see a bureaucracy

01:28 - 03.738 or a superstructure like we do with mining or the other regulated industries?

01:29 - 05.039 You've talked about that.

01:29 - 07.575 There's a constitutional right here.

01:29 - 08.910 Well, then

01:29 - 11.913 we don't see the government creating this,

01:29 - 17.118 you know, bureaucracy for mining or gaming or what have you, because there's,

01:29 - 20.955 you know, well, there's no constitutional right to mine

01:29 - 23.958 or gaming or do gaming,

01:29 - 27.995 there's a constitutional right to bear arms.

01:29 - 31.499 Well, a lot of local regulation has constitutional implications,

01:29 - 34.502 and that doesn't necessarily follow that

01:29 - 38.639 all the all local regulation is going to be field preempted.

01:29 - 41.642 And I think a prime example is the Nutter v Daugherty case.

01:29 - 45.346 So there we are dealing with a constitutional provision that said

01:29 - 48.950 we must have uniformity in election or the holding of elections.

01:29 - 52.754 And that was the argument that Representative Fattore used to say

01:29 - 55.957 this must preempt the field because or the election code

01:29 - 59.794 must preempt the field because we have a constitutional, provision at stake here.

01:30 - 03.431 Nonetheless, the court found that wasn't the case.

01:30 - 06.667 We have regulation that

01:30 - 10.304 affects things like, you know, the equal protection clauses, anti-discrimination.

01:30 - 13.374 We are allowed to have our own local fair practices ordinance

01:30 - 14.575 that gets that discrimination.

01:30 - 17.879 So the Constitution is everywhere, and state

01:30 - 20.882 and local governments need to be partners in upholding the Constitution.

01:30 - 24.051 But that doesn't mean that local governments are now,

01:30 - 26.154 kicked out of that realm entirely.

01:30 - 29.157 That's that's that's a better argument than,

01:30 - 31.826 a extensive federal

01:30 - 34.829 bureaucracy is indicative of field preemption,

01:30 - 38.633 of federal preemption, of field preemption.

01:30 - 41.302 You said you said for us to find field preemptive,

01:30 - 44.439 we need evidence that the state has an extensive bureaucracy,

01:30 - 46.441 much like the liquor control board and stuff like that.

01:30 - 49.444 What you've just articulated, I think is a more persuasive argument.

01:30 - 50.878 Okay. Well, thank you, Ron.

01:30 - 55.383 And you can stop there.

01:30 - 58.953 Don't don't push your luck.

01:31 - 02.390 All right.

01:31 - 05.393 So I think, oh,

01:31 - 08.229 I just want to emphasize one more thing.

01:31 - 11.332 You know, we talked about the bond case and the potential

01:31 - 14.101 for federal regulation in the area of ghost guns.

01:31 - 16.437 I just wanted to emphasize that what the city's trying to do

01:31 - 18.539 here is fill a regulatory gap.

01:31 - 21.843 So right now, the area is evolving, and I'm sure we're going to get more clarity

01:31 - 23.911 as it continues to evolve at the federal level

01:31 - 26.647 and potentially at the state level as well.

01:31 - 30.852 We're trying to fill the gap in things that are not yet firearms under state law.

01:31 - 33.921 And therefore are not yet regulated under state law.

01:31 - 36.724 But we can see what's going to happen is that as soon as the feds start

01:31 - 40.328 getting more aggressive about the the 80% kits that it's going to become

01:31 - 44.198 70%, 60%, there's nothing there's nothing stopping the state government

01:31 - 46.234 from getting more aggressive. About 80% kits.

01:31 - 50.505 Now with the change of the fact, changing the federal definition, we could see

01:31 - 53.407 whether it's the state police

01:31 - 57.578 or someone else start saying there's a new definition of firearm in town.

01:31 - 58.579 We're going to start

01:31 - 02.383 we're going to start citing all these 80% receiver kits at these gun shows

01:32 - 06.187 and say you're not serialized and start citing and shut them down.

01:32 - 08.055 That could happen tomorrow. Oh, absolutely.

01:32 - 11.025 And the city of Philadelphia would welcome that kind of action.

01:32 - 12.326 So I have a question.

01:32 - 13.494 I'm just trying to clarify.

01:32 - 15.796 This is your argument hypothetically?

01:32 - 16.731 Well, not hypothetically.

01:32 - 20.401 The General Assembly passed, the Uniform firearm fact,

01:32 - 25.172 specifically 6110 creates a concept of felony

01:32 - 29.010 of the second degree for a possession of a firearm

01:32 - 32.146 that has, a manufactured

01:32 - 35.149 number removed or obliterated.

01:32 - 39.453 Your ordinance is geared toward

01:32 - 44.692 making sure that manufactured firearms

01:32 - 48.629 without a serial number

01:32 - 51.666 are prohibited, at least in the city and county of Philadelphia.

01:32 - 52.633 Is that what you're saying?

01:32 - 54.468 Which state

01:32 - 58.005 you're to regulation in support of 6110,

01:32 - 01.309 as opposed to a challenge that it's a field preemption

01:33 - 04.712 that you're not permitted to enhance locally

01:33 - 08.549 what the General Assembly has permitted for the Commonwealth.

01:33 - 14.055 I think it's it is not inconsistent with 6110, certainly.

01:33 - 18.993 And so holding the same goals of 6110 is that we want firearms to be serialized.

01:33 - 22.697 I think the difference here is that because of 6120,

01:33 - 25.299 we know we're preempted once the firearm becomes a gun.

01:33 - 30.004 So if it's 3D printed, put together what have you, but doesn't have

01:33 - 34.442 a serial number, we at that point can't regulate it can or cannot can.

01:33 - 37.645 Well, if it's the lawful ownership, possession, etc.

01:33 - 39.213 the words are right there.

01:33 - 39.847 Do you agree?

01:33 - 43.718 The only people that have them serialize a gun are manufacturers of third

01:33 - 47.054 party sales under federal law, federal and state law.

01:33 - 48.356 Right? Right.

01:33 - 50.591 That sounds like that's the case now.

01:33 - 52.994 So you can't take you can't buy a firearm

01:33 - 56.130 that is serialized and obliterated under 6110.

01:33 - 57.365 That is illegal, right?

01:33 - 59.934 And the ordinance isn't trying to get at that.

01:33 - 00.768 Right.

01:34 - 04.171 What is trying to get at is this process of creating on serialized

01:34 - 05.573 firearms, which is legal,

01:34 - 08.709 which with creating them? Yes.

01:34 - 11.712 At the moment it is right.

01:34 - 14.882 But that's the that's the gap we're trying to fill.

01:34 - 17.184 All right. Any other questions?

01:34 - 19.387 Thank you very much. Miss Mike Thornton.

01:34 - 20.187 Thank you both.

01:34 - 21.956 Well argued, Mr.

01:34 - 24.959 Menor, would you call the next case?

01:34 - 32.099 The next case, Sandra Coyote versus Mary Jane home

01:34 - 36.504 Enrichment Center involves a highly technical and procedural issue

01:34 - 41.142 about the timeliness of an appeal when a party is involved in a trial.

01:34 - 44.979 In a civil lawsuit in Pennsylvania, a party has the right to appeal

01:34 - 48.215 from the trial judge's decision or, in the case of a jury trial,

01:34 - 51.719 from the jury's verdict, but to appeal a decision

01:34 - 55.690 to a higher court, the decision generally must be a final order,

01:34 - 59.226 which is an order that disposes of the entire case.

01:34 - 02.663 For instance, in a car accident case, suppose

01:35 - 05.933 that a jury awards the plaintiff $50,000 in damages.

01:35 - 09.770 The trial judge would then enter judgment against the defendant

01:35 - 12.773 and in favor of the plaintiff for $50,000.

01:35 - 16.877 That judgment is a final order that can be appealed to a higher court.

01:35 - 20.381 Importantly, that appeal must be filed within 30 days.

01:35 - 24.852 There's also a different type of order that can be appealed from the trial court

01:35 - 26.120 to a higher court.

01:35 - 29.023 Those orders are called collateral orders.

01:35 - 32.026 A collateral order involves an aspect of a case

01:35 - 34.795 that is separate from the merits of the case.

01:35 - 37.798 Involves a right that's too important not to be reviewed,

01:35 - 41.402 and would cause irreparable harm or harm

01:35 - 45.072 that cannot be repaired if the review of that order is postponed.

01:35 - 49.443 This case, Cowell versus Mary Jane Home in Richmond Center,

01:35 - 52.880 involves a collateral order, and specifically the issue

01:35 - 56.317 of whether that collateral order was appealed timely.

01:35 - 01.422 Celiac sued her landlord in a weeks dispute before the trial court.

01:36 - 03.390 She was represented by pro bono counsel,

01:36 - 06.360 which means counsel who provide free legal services.

01:36 - 09.864 After she lost her weeks dispute, she wanted to appeal,

01:36 - 12.767 but her attorneys moved to withdraw from her case

01:36 - 15.770 rather than continue to represent her on appeal.

01:36 - 19.039 Carlisle opposed their motion, and the trial court

01:36 - 22.042 granted counsel's withdrawal over her objection.

01:36 - 25.412 This decision permitting counsel's

01:36 - 28.449 withdrawal, met the three requirements for a court order.

01:36 - 31.952 Carlisle would be, without counsel, an important right

01:36 - 34.555 to decision to allow her counsel to withdraw

01:36 - 37.558 was unrelated to the merits of her dispute,

01:36 - 41.228 and Carlisle would be irreparably harmed if she were forced to raise the

01:36 - 45.332 withdrawal issue when appealing the merits of the underlying lease dispute,

01:36 - 49.403 because she effectively would have been without counsel during her appeal.

01:36 - 50.271 The lease dispute.

01:36 - 53.440 The trial court had granted

01:36 - 56.811 counsel's motion to withdraw on April 18th of 2023.

01:36 - 01.081 Importantly, Cargill did not file an appeal of the withdrawal order

01:37 - 04.752 within 30 days or by May 18th of 2023.

01:37 - 09.023 Instead, representing herself, she filed a series of other motions

01:37 - 12.326 with the trial court, including a motion for reconsideration

01:37 - 15.329 of the April 18th, 2023 withdrawal order.

01:37 - 18.933 The court denied reconsideration on June 2nd,

01:37 - 22.703 and on June 9th, Carlisle appealed both the April 18th

01:37 - 26.340 withdrawal order and the June 2nd order, denying reconsideration.

01:37 - 30.211 The trial court found that Coyle's appeal was timely

01:37 - 34.148 because she filed it within 30 days of the June 2nd

01:37 - 37.952 reconsideration order, which is the last of a series of orders

01:37 - 41.121 addressing the collateral issue of counsel's withdrawal.

01:37 - 45.092 On appeal, however, the Superior Court disagreed,

01:37 - 46.627 holding that

01:37 - 50.464 Cowell should have appealed within 30 days of the April 18th,

01:37 - 54.768 2023 withdrawal order, as that was the operative order,

01:37 - 57.938 not the June 2nd order denying reconsideration.

01:37 - 02.042 The Superior Court also noted that orders denying reconsideration

01:38 - 03.611 are not appealable.

01:38 - 05.813 Only the original order.

01:38 - 09.183 The court concluded that because Cargill's appeal was untimely,

01:38 - 12.152 it lacked jurisdiction and it quashed her appeal.

01:38 - 15.289 The Supreme Court, however, has granted Powell's

01:38 - 18.292 petition for allowance of appeal on the following issues.

01:38 - 22.830 First, whether her appeal of the last in a series of collateral orders,

01:38 - 26.233 including a reconsideration order, was timely.

01:38 - 30.638 Second, whether a collateral order must be appealed within 30 days,

01:38 - 35.209 and third, whether appeals from final orders are governed by different

01:38 - 39.713 appellate rules than collateral orders, including an appeal of an order denying

01:38 - 43.183 reconsideration of the original collateral order.

01:38 - 46.687 For purposes of her appeal to the Supreme Court,

01:38 - 50.791 Carlisle is represented by different pro bono counsel who argue in her behalf.

01:38 - 55.596 Let's watch and listen to Sandra Kaleo versus Mary Jane Home in Richmond Center.

01:38 - 00.100 Good morning.

01:39 - 00.401 Morning.

01:39 - 05.406 Your honor, in this civil litigation, we address a series of interlocutory orders

01:39 - 09.176 concerning the withdrawal of appellants pro bono counsel.

01:39 - 12.746 In April 2023, the trial court

01:39 - 16.550 granted counsel's motion to withdraw a month

01:39 - 21.021 later, appellant filed a motion for reconsideration of the order

01:39 - 24.858 granting counsel's withdrawal, which the trial court denied.

01:39 - 26.193 In early June.

01:39 - 31.265 One week later, appellant filed a notice of appeal of the June order.

01:39 - 34.668 The Superior Court quashed the appeal

01:39 - 40.307 to respond to concluding that the appeal was untimely because appellant

01:39 - 45.412 did not file her notice of appeal within 30 days of the April order,

01:39 - 50.317 and deemed the June reconsideration order to be an appealable.

01:39 - 55.823 We are asked to address whether appellant's appeal of the last

01:39 - 59.393 in a series of interlocutory collateral orders,

01:39 - 02.463 including a reconsideration order, is timely.

01:40 - 07.134 Whether a collateral order must be appealed within 30 days,

01:40 - 12.239 and whether appeals from final orders are governed by different appellate rules

01:40 - 17.144 that appeals from collateral orders, including an appeal of an order

01:40 - 20.914 denying reconsideration of the original collateral order.

01:40 - 23.851 I hope that was largely correct.

01:40 - 25.519 Please proceed.

01:40 - 29.223 Yes. That's the that's the under that's the actually the order that the,

01:40 - 32.493 issue on which the court granted our order, your honor,

01:40 - 36.330 for, Dennis Whitaker, may it please the court, my colleague,

01:40 - 39.500 Melissa Pascha is here with me today,

01:40 - 45.072 and we are representing, the appellant in this matter, Sandra Kahlil.

01:40 - 48.609 And there will not be argument from an appellate in this case.

01:40 - 52.379 Yes. The appellate actually never participated,

01:40 - 56.550 did not participate in the Superior Court, nor have they participated here.

01:40 - 59.453 Miss Carlisle

01:40 - 03.857 came to the court proceeding pro se and in form of corporis, to challenge

01:41 - 06.060 the order of the Philadelphia Court of Common Pleas,

01:41 - 09.063 which granted her pro bono counsel's motion to withdraw

01:41 - 12.366 from further representing her before that court.

01:41 - 17.137 The record indicates that the author of Pro bono counsel

01:41 - 21.475 was not mandatory or explicitly justified

01:41 - 25.279 under Rule of Professional Conduct, 1.16,

01:41 - 29.416 and further was materially adverse to Miss Carlisle's interests

01:41 - 32.786 in a specific matter in which pro bono counsel was appointed,

01:41 - 36.123 where it resulted in specific harm to her case

01:41 - 39.059 and delayed critical progress.

01:41 - 41.261 The order is not final.

01:41 - 42.896 It's separable from the merits.

01:41 - 46.633 It involves a right to import and to be denied review.

01:41 - 50.571 And if review was postponed, the right will be irreparably

01:41 - 53.707 lost as it is effectively on reviewable

01:41 - 57.845 miss, as you pointed out, or as you mentioned, Your Honor,

01:41 - 00.247 I don't know that I believe that.

01:42 - 01.882 In what order?

01:42 - 04.985 Why? It's the right price of right loss.

01:42 - 08.755 Why can't a trial pro say.

01:42 - 12.126 And if she loses, raise the appeal at the end of the trial.

01:42 - 15.829 She's already gone.

01:42 - 19.199 She's already forced to file the appeal

01:42 - 26.473 on her own after pro bono counsel withdrew.

01:42 - 30.978 And there's a lot of underlying

01:42 - 34.381 a lot of underlying issues with that which we may or may not discuss.

01:42 - 39.887 But she was she was forced to file the appeal when they withdrew.

01:42 - 45.559 The record supports that she made extensive efforts on her own

01:42 - 51.265 to find additional counsel, and the record further supports that.

01:42 - 55.202 Pro bono counsel gave no assistance in that regard whatsoever.

01:42 - 58.772 I'm not arguing with you about any of those issues.

01:42 - 03.610 My sole point is I don't believe this is a collateral order

01:43 - 08.248 because our court has said that orders disqualifying counsel

01:43 - 12.186 and civil cases are not collateral orders subject to appeal.

01:43 - 16.156 And my specific question to you was, what

01:43 - 19.393 what is the harm to Miss Carlisle

01:43 - 23.797 that she can't raise this issue if she loses on appeal?

01:43 - 25.499 Number one,

01:43 - 28.702 time has already a lot of time, has a lot of time.

01:43 - 31.838 Trying to answer your question, Your honor,

01:43 - 34.708 a lot of time has already passed.

01:43 - 39.813 Miss Carlisle will be forced to essentially litigate against the lawyer,

01:43 - 45.152 try to preserve all these issues, and then down the line,

01:43 - 51.458 notwithstanding the fact that the record already shows that previous pro

01:43 - 56.063 bono counsel violated both the Philadelphia rule

01:43 - 01.068 regarding withdraw and the rules of civil procedure

01:44 - 06.840 regarding withdraw, arguably, rule 1.16,

01:44 - 10.577 which requires that withdrawal be done

01:44 - 16.183 without materially damaging Miss Carlisle's interests.

01:44 - 19.186 The council also asked Carlisle's interests.

01:44 - 21.288 I'm sorry, Your Honor.

01:44 - 22.422 What are Miss Carlisle's interest?

01:44 - 25.692 Because in order to qualify along the lines of what Justice Mundy

01:44 - 26.927 was just asking you,

01:44 - 30.597 in order to qualify as a collateral order, it's got to implicate rights.

01:44 - 32.633 Too important to be denied. Review.

01:44 - 35.636 What rights does a pro say plaintiff have in a civil case?

01:44 - 37.638 This is not a criminal case.

01:44 - 39.273 They can proceed pro se. They don't.

01:44 - 41.642 What right do they have to force an attorney

01:44 - 44.978 to represent them in a course of action that may not exist?

01:44 - 50.384 Your honors character is no civil Gideon in Pennsylvania.

01:44 - 54.321 However, once this court,

01:44 - 57.858 the chief Justice sends out a letter every year,

01:44 - 02.763 the rule 6.1 encourages pro bono representation.

01:45 - 09.303 And rule 1.16 says when that happens, there are certain when you undertake that

01:45 - 13.006 there are certain things that you are required to do, one of which

01:45 - 18.645 is minimize materially adverse effects when you withdraw, I suggest.

01:45 - 22.282 But the rules also impose an obligation upon attorneys for candor of the court.

01:45 - 27.020 If I if I'm pro bono counsel and the chief justice sends out a letter and says,

01:45 - 30.824 we want you to represent people on a pro bono basis, and I agree to do it.

01:45 - 32.059 If I meet with you

01:45 - 35.295 and I look at your case and I said, I don't think you've got a cause of action

01:45 - 39.966 under the rules of professional conduct, I have a duty of candor to the court.

01:45 - 43.837 What right do you have as a pro se plaintiff to force me

01:45 - 47.574 to continue to represent you where you don't have a cause of action?

01:45 - 50.410 That's the right that we're talking about for collateral review.

01:45 - 51.878 The record doesn't support that.

01:45 - 53.313 There's no cause of action here.

01:45 - 54.448 Number one.

01:45 - 57.384 And number two, the issue, the way

01:45 - 00.420 the test is, the way the test is

01:46 - 05.125 stated, is that an important right

01:46 - 09.329 that goes, that has a basis, beyond,

01:46 - 14.401 John Normal and I'm saying or what we're arguing here

01:46 - 18.805 is that once the court encourages pro bono representation,

01:46 - 21.975 once counsel court encourages all kinds of things.

01:46 - 26.046 And and you seem to want to invite us to get into a line

01:46 - 29.049 drawing exercise.

01:46 - 30.417 Telling our lower courts

01:46 - 33.420 to engage in an inquiry.

01:46 - 34.554 When is this?

01:46 - 38.725 You know, when is this, particular litigant prejudiced enough

01:46 - 43.463 that we're going to bootstrap her into collateral order status?

01:46 - 46.833 Why couldn't she follow the the rule

01:46 - 50.404 that it's been in place since the 68?

01:46 - 53.707 We have a case from 1968, and in 1981.

01:46 - 56.410 You don't cite any of either of these cases.

01:46 - 00.113 In 1989, in the Sid cuff, Marcus and Green case,

01:47 - 03.250 this court made it very, very clear.

01:47 - 06.653 And I think every justice up here knows it's always been the rule.

01:47 - 09.289 You file your motion for reconsideration.

01:47 - 12.793 And at the same time, you perfect your appeal so that if you

01:47 - 17.464 if the court doesn't rule on your motion or denies it, you're protected.

01:47 - 21.968 Why is your client so special that she's not subject

01:47 - 26.072 to that rule that applies everywhere else in Pennsylvania civil litigation.

01:47 - 29.743 Miss Miss Carlisle followed the procedure

01:47 - 33.780 for appealing to Superior Court that Superior Court had laid out.

01:47 - 37.984 And in fact, the cabin case in Superior Court is on all fours.

01:47 - 39.152 With this case,

01:47 - 42.522 it was a series of collateral orders that was a discovery matter.

01:47 - 48.028 But the last order in that case was a denial of reconsideration.

01:47 - 52.165 And the court said, we do not consider a denial of reconsideration

01:47 - 55.235 to be appealing reconsideration.

01:47 - 59.406 We consider that to be the terminal order in the series,

01:47 - 02.843 and that means that you're appealing all the other collateral orders

01:48 - 05.846 and all the other interlocutory orders in the series.

01:48 - 09.049 You see, where you see where this this, Superior Court,

01:48 - 12.719 case law about a series,

01:48 - 16.256 you see the problems it's getting us into here

01:48 - 19.125 because it's monkeying with the 30 day rule,

01:48 - 22.896 and it forces courts to determine what is the series.

01:48 - 25.198 First of all, what's a collateral order?

01:48 - 26.166 Which we have to do,

01:48 - 28.768 which is another layer.

01:48 - 31.338 But once we're over that hurdle, then

01:48 - 34.341 what's a series and what's outside the series?

01:48 - 37.611 Isn't it better to have a bright line rule like our rules contemplate,

01:48 - 43.083 instead of this superior court frolic of deciding what a series is?

01:48 - 45.552 Well, the problem is there's no bright line rule.

01:48 - 48.755 The bright line rule of about regarding appealing

01:48 - 51.858 or trying to appeal denials

01:48 - 57.030 or reconsideration is tied to rule 341 final orders.

01:48 - 00.333 With regard to collateral or interlocutory orders.

01:49 - 01.201 Excuse me.

01:49 - 05.739 311 appeal as of right may be filed within 30 days.

01:49 - 11.211 312 appeal by permission may be filed within 30 days, so three three

01:49 - 15.181 interlocutory orders and collateral orders are not the same things.

01:49 - 17.984 Actually, if you have a Venn diagram,

01:49 - 21.755 all collateral orders are a smaller

01:49 - 25.692 circle inside the larger interlocutory order circle.

01:49 - 26.660 That's the whole stack.

01:49 - 28.995 All the oranges are fruit, but not all fruit. Oranges?

01:49 - 29.763 Yes. Right.

01:49 - 32.999 So like all Amish or Mennonites, but not all Mennonites are obvious.

01:49 - 34.968 I like the fruit thing better than that. Okay,

01:49 - 38.138 we'll go with, but, But I guess I guess so.

01:49 - 39.306 Look, I mean, this

01:49 - 42.542 the Superior Court in this case, because they made a determination on

01:49 - 44.177 whether it was a collateral order or not.

01:49 - 47.714 And were I, I think I think Justice White's point is,

01:49 - 51.651 is, is a good point is your client assuming your client,

01:49 - 56.189 it says that your client relied on this Superior Court decision.

01:49 - 00.360 That to me just seems like an outlier from our actual rules of procedure

01:50 - 03.363 in terms of the collateral order reconsideration distinction.

01:50 - 07.233 Let's say we say that let's say that case has to go away.

01:50 - 08.335 That opinion is is.

01:50 - 12.539 But if you if you have the right to appeal a collateral order

01:50 - 16.076 and you want to appeal it instead of waiting until the end of the case,

01:50 - 19.179 you must file your appeal within 30 days.

01:50 - 21.681 Full stop. If we say that.

01:50 - 26.920 Should we nonetheless provide your client with some relief

01:50 - 31.157 because your client relied on a Superior Court decision that we're basically saying

01:50 - 32.325 was not a good decision?

01:50 - 34.594 I don't I don't disagree with that, Your Honor.

01:50 - 38.665 I think it would be if the court somehow said, well, you can appeal.

01:50 - 42.035 You can appeal the last order in a series of what I'm saying.

01:50 - 42.702 We don't say that.

01:50 - 45.705 I'm saying we follow our rules of civil procedure.

01:50 - 49.542 We we we say as a client we know what the collateral reconsideration

01:50 - 51.411 is, not a collateral order reconsideration.

01:50 - 54.481 It is a motion off of a collateral order.

01:50 - 58.652 And we say the rules say appeal, a collateral order

01:50 - 00.887 if you want to appeal it and you don't want to wait,

01:51 - 03.023 you have to file your appeal within 30 days.

01:51 - 06.026 Full stop. Bright line rule. We're done.

01:51 - 08.361 You appeal it up in the Superior Court of the Commonwealth Court.

01:51 - 10.230 You decide whether it's a collateral order or not.

01:51 - 11.398 And that always happens.

01:51 - 14.934 But we're saying here, full stop, 30 days.

01:51 - 18.071 Your client's on appeal to the Superior Court was clearly untimely.

01:51 - 21.675 But we say in this case,

01:51 - 25.545 should we say in this case, unfortunately, there's no opposing counsel here.

01:51 - 27.147 Should we say in this case?

01:51 - 30.750 But your client reasonably relied on a Superior Court decision

01:51 - 32.052 that we're now getting rid of.

01:51 - 34.454 So we're going to send it back to the Superior Court

01:51 - 37.223 and give you a non pro tunc collateral appeal.

01:51 - 39.626 I would take that wouldn't you.

01:51 - 41.561 You would accept that wouldn't you. Yes.

01:51 - 44.998 I would know also that Judge Flemons

01:51 - 48.835 opinion from the Common Pleas Court also cited Cabot.

01:51 - 51.071 So judge, I'm not just I'm not judge.

01:51 - 53.373 Of course he did, because it exist.

01:51 - 56.142 We're talking about we're talking we didn't take this case.

01:51 - 58.878 We we we probably took this case to basically deal with the Superior

01:51 - 01.948 Court's decision that appears in conflict with our rules of civil procedure.

01:52 - 09.622 I would take we would take you take the double.

01:52 - 14.094 Yes, we would take if you suggested that if if that's what the court did,

01:52 - 19.632 that would give Miss Camille a bite at the apple that she got, that she had

01:52 - 23.970 superior court followed its own case law that she would have gotten.

01:52 - 26.973 And the appeal might not have ever come up here.

01:52 - 30.510 However, I would suggest that

01:52 - 36.082 the courts, the court I would suggest that the court's view

01:52 - 40.453 of interlocutory orders isn't necessarily consonant with a

01:52 - 43.523 what the practice is and be the language of the rules,

01:52 - 48.294 but she's got no constitutional or even rule based right to counsel.

01:52 - 54.768 Well, and sure versus Hafer, we rejected this argument in in and arguably

01:52 - 58.605 more accurately, you didn't reject actually you did not reject this argument.

01:52 - 02.776 The issue in Scherer was whether or not

01:53 - 08.414 the person could have a lawyer or other representation.

01:53 - 12.185 And in fact, when Justice Tod wrote the opinion,

01:53 - 17.490 she pointed out that this is not solely about representation

01:53 - 21.561 by counsel as we pointed out in our brief, in this case,

01:53 - 25.498 that's all that this is about, is representation by counsel. So

01:53 - 28.301 is it fair to say that the

01:53 - 32.172 propriety of the withdraw could be addressed

01:53 - 35.909 at final judgment at the end of a trial, when an appeal correct?

01:53 - 40.980 Yes, it could.

01:53 - 43.883 So if it could, it's not.

01:53 - 44.184 Yeah.

01:53 - 47.620 Irreparably or irreparably lost.

01:53 - 51.524 Therefore it doesn't meet the definition of a collateral order as per.

01:53 - 53.827 Well, I don't think that's correct, Your Honor.

01:53 - 54.194 Judge.

01:53 - 58.698 No, because including that this court decided

01:53 - 01.534 that this court decided in January.

01:54 - 02.402 It didn't.

01:54 - 07.173 The test isn't can it be addressed at the end to Ludi,

01:54 - 10.276 the quote is to satisfy the Inseparability prong,

01:54 - 15.181 the matter must be effectively un reviewable on appeal from final judgment

01:54 - 18.952 and that's citing Commonwealth v Wells and was just a piece PCR.

01:54 - 22.088 Yeah, the operative word is irreparably lost.

01:54 - 25.925 It's not how you know how would you how would your how would that violate

01:54 - 29.229 how would justice Daugherty is asking you violate that word?

01:54 - 31.030 I'm sorry I missed your question.

01:54 - 34.067 How is what Justice Daugherty is saying to you violate that wording?

01:54 - 35.602 And it's not.

01:54 - 39.472 It's not irreparably lost.

01:54 - 41.708 It's effectively lost.

01:54 - 42.375 Child.

01:54 - 43.910 How is it effectively lost?

01:54 - 47.213 It's effectively lost because the passage of time

01:54 - 50.450 Welch alluded to specifically said the passage of time doesn't matter.

01:54 - 55.054 The passage, the, the, the expense, whatever expense you have to go through

01:54 - 57.257 to go through these processes and things like that,

01:54 - 01.261 that is not a consideration for purposes of whether something is irreparably lost.

01:55 - 05.498 If Miss Cleo was not indigent,

01:55 - 09.235 I would suggest that that might be correct.

01:55 - 12.705 But the two things that are the two things that happened here,

01:55 - 16.309 she was represented by appointed pro-bono counsel.

01:55 - 20.013 The record supports the inference,

01:55 - 22.982 at least, that,

01:55 - 27.253 they essentially dropped her

01:55 - 32.158 with no effort whatsoever to assist her in getting other counsel.

01:55 - 32.892 Okay.

01:55 - 34.994 So she now she goes through the case through the

01:55 - 37.997 she goes through the civil trial, she loses.

01:55 - 41.100 She appeals to the Superior Court and says,

01:55 - 43.236 I need a new trial. I you need to

01:55 - 46.239 you need to reverse the judgment because my counsel abandoned me.

01:55 - 48.942 And the Superior Court goes, you're absolutely right.

01:55 - 49.542 New trial.

01:55 - 52.679 All these things pushed

01:55 - 55.682 all these things push it down the line.

01:55 - 00.653 She's operating without counsel, and you're essentially assuming

01:56 - 03.856 that she will be able to carry forward.

01:56 - 07.126 She got to she got to the Pennsylvania Supreme.

01:56 - 07.660 I'm sorry.

01:56 - 09.362 She got to the Pennsylvania Supreme Court.

01:56 - 10.964 Oh, yes, she did.

01:56 - 15.001 But you're also saying now she's going to now she's going to have to go back

01:56 - 17.937 and try this case by herself if she could do it.

01:56 - 20.106 Cannot conduct so unique.

01:56 - 22.308 We we've all

01:56 - 24.644 had many cases with pro se litigants.

01:56 - 29.482 I mean they're pro se litigants litigating much, much more critical things.

01:56 - 31.517 Child custody.

01:56 - 34.520 Why is your client so special

01:56 - 39.392 that her claim is irreparably lost when all these other litigants across

01:56 - 43.262 Pennsylvania who are trying cases pro se in civil courts,

01:56 - 46.899 civil context right now, right now in this city, for example,

01:56 - 49.002 that that their

01:56 - 52.872 claims are not as special as your client's claim.

01:56 - 57.510 Remember, in this case, the trial court allowed counsel to withdraw,

01:56 - 02.015 stayed the case for 120 days so your client could get counsel.

01:57 - 07.820 And you're coming here now and telling us this was irreparably lost? Yes.

01:57 - 11.224 If you look at the record here, counsel

01:57 - 14.227 withdrew in 2019.

01:57 - 16.929 Miss Carlisle, it's in the record.

01:57 - 20.566 Spent a fair bit of time and that's all on the record

01:57 - 23.569 trying to get this, trying to get new counsel.

01:57 - 26.706 It was only when she could not do so

01:57 - 31.077 that she asked the court to reinstate counsel,

01:57 - 34.981 because when they withdrew, they didn't withdraw properly.

01:57 - 36.949 The court did that.

01:57 - 38.785 Then we ended up with the hearing.

01:57 - 39.752 The issue isn't

01:57 - 44.057 whether miss the isn't the issue isn't that Miss Carlisle is special.

01:57 - 49.929 The issue is, is that once is it with pro bono representation,

01:57 - 54.400 once counsel undertakes that there's certain obligations

01:57 - 57.637 that weren't followed through with here.

01:57 - 01.174 But counsel was removed after a second time.

01:58 - 04.277 The counsel withdrew without following the procedure.

01:58 - 06.979 Therefore, the court turned around and said no, we'll vacate that.

01:58 - 09.982 Your counsel again, then that counsel withdrew

01:58 - 12.585 by the by order of the court, correct?

01:58 - 13.686 Yes, that's the order.

01:58 - 15.788 That's the order that was attempted. Right.

01:58 - 18.524 So we have that. Now, where's your issue?

01:58 - 21.194 Well, there's two things.

01:58 - 22.728 And she's appealing the order.

01:58 - 26.199 Number one, I would suggest that we're not going

01:58 - 28.468 not to get in not the into the merits here.

01:58 - 31.604 But it also it's on the merits also somewhat tie

01:58 - 34.607 in to why

01:58 - 37.677 it's important that Miss Carlisle's

01:58 - 40.680 appeal be allowed to go forward.

01:58 - 45.251 The argument here is that, well, the argument would be, is there's not

01:58 - 48.588 sufficient evidence in the record to support, but the trial court did.

01:58 - 52.358 If you read Judge Flat its opinion, she talks about how,

01:58 - 55.595 pro bono counsel testified

01:58 - 59.332 pro bono counsel didn't testify, was never sworn in.

01:58 - 04.003 You're just you're you're arguing the merits of a trial court decision.

01:59 - 05.438 Let me just let me just put.

01:59 - 08.040 And we understand your client timely

01:59 - 11.043 filed a motion for reconsideration.

01:59 - 14.280 But the fatal problem is she didn't

01:59 - 17.917 she didn't go next door that same day and filed the appeal.

01:59 - 19.752 That's all she had to do.

01:59 - 21.888 And that's why I keep coming back to this point.

01:59 - 27.193 Is your position basically is your client is so special that unlike

01:59 - 30.796 everybody else in Pennsylvania, she doesn't have to do that other thing.

01:59 - 33.933 She doesn't have to file that appeal notice

01:59 - 36.802 at when she files her motion for reconsideration.

01:59 - 39.305 She's more special than Shearer versus Hafer.

01:59 - 42.308 She's more special than the Sidcup versus green case.

01:59 - 45.144 And I just don't follow that reasoning.

01:59 - 47.613 There's there's two different there's two different things here.

01:59 - 51.584 Number one she v for it wasn't an appeal from an ordered dying

01:59 - 55.855 reconsideration as far as appealing to reconsideration order.

01:59 - 00.326 She followed binding precedent not on this court

02:00 - 02.161 but on the court in time.

02:00 - 03.196 You know I'm right.

02:00 - 04.463 We're mixing two different things.

02:00 - 08.801 So you're go this my client is so special argument is an argument

02:00 - 12.638 you're making on the merits of whether it's a collateral order,

02:00 - 15.908 which the Superior Court did not get to right now.

02:00 - 16.676 You may

02:00 - 21.314 if we enter, if we decided that which I don't think we took it for that reason.

02:00 - 24.150 But if we decide that we're essentially giving your client

02:00 - 28.554 a non protoc appeal by deciding whether it was a collateral order, but the.

02:00 - 32.058 So so you probably should you probably accept you're

02:00 - 34.894 answering the question of the justices, stay away from this argument.

02:00 - 38.197 My client is so special because that goes to the merits

02:00 - 42.401 of whether the claim is irreparably lost for purposes of a collateral order prong.

02:00 - 46.038 Justice Weston and I, to a certain extent, are focused on

02:00 - 49.408 the question that we took, which is,

02:00 - 52.245 did your client timely appeal

02:00 - 56.048 to the Superior Court from the order of denying

02:00 - 59.685 or order,

02:00 - 00.753 letting counsel go.

02:01 - 01.487 Right.

02:01 - 03.923 And justice, which point is,

02:01 - 07.560 if that was a collateral order, which your client takes the position

02:01 - 11.697 it was our rules would say you had to have us.

02:01 - 18.104 Our rules would say

02:01 - 21.107 that you had to appeal that within 30 days.

02:01 - 24.176 Your answer to that is yes,

02:01 - 28.748 but there's this Superior Court decision that says,

02:01 - 33.185 as long as I keep filing motions for reconsideration ad nauseum, I can

02:01 - 36.822 I can stage that 30 days out and create

02:01 - 39.825 this serial collateral order thing.

02:01 - 42.895 That's I just want to separate the two.

02:01 - 44.330 What one argument is.

02:01 - 46.465 My client is so special, and we should have a rule

02:01 - 51.170 for collateral orders that makes the withdrawal of counsel, irreparable.

02:01 - 53.939 One is purely did your client appeal timely?

02:01 - 56.509 I want to agree with what you're saying.

02:01 - 59.178 And I also want to make clear.

02:01 - 02.181 And maybe when I finish here, I'll just sit down and shut up.

02:02 - 06.552 But if you're if the results are going to be your remanded back to Superior Court

02:02 - 09.955 to say the appeal was timely under what the law was then

02:02 - 12.158 I doubt, I doubt we're going to do that.

02:02 - 16.562 I mean, I, I think the point is though, at least what I'm suggesting to you is

02:02 - 19.999 maybe the issue we shouldn't talk about is collateral order.

02:02 - 22.935 You can make your my client a special arguments in the Superior Court.

02:02 - 26.038 If we give you a nunc pro tunc appeal, your appeal was on time.

02:02 - 29.642 It's not that the issue isn't.

02:02 - 30.910 It is clearly.

02:02 - 37.083 Very busy.

02:02 - 37.883 You know. That's why I would.

02:02 - 40.353 If I get drowned out.

02:02 - 41.187 Go ahead.

02:02 - 42.121 The issue isn't.

02:02 - 43.756 And maybe that's what I'm having front.

02:02 - 46.125 The issue is that the,

02:02 - 48.594 the issue is that pro bono

02:02 - 52.098 representation creates certain additional

02:02 - 57.436 requirements for attorneys, which were not filed here.

02:02 - 01.207 That's why it's that's why it's different and that's

02:03 - 02.975 why it's different than Scherer.

02:03 - 06.345 And that's why it fits in counsel.

02:03 - 08.948 There's the issue.

02:03 - 10.316 What was not followed there.

02:03 - 13.919 They the lawyer withdrew inappropriately.

02:03 - 19.892 Your client filed a motion and the judge granted it and reinstated.

02:03 - 23.963 Then that lawyer withdrew through appropriate procedure

02:03 - 28.100 that that full stop as justice, perhaps, and said,

02:03 - 30.903 where's where's this issue

02:03 - 33.873 that you say you have this right

02:03 - 35.040 to continue?

02:03 - 38.344 What, filing motion to reconsider in perpetuity?

02:03 - 40.546 No, that's and that's actually the judge.

02:03 - 44.083 That's actually not what happened in any of the Superior Court cases.

02:03 - 49.221 All Cabot says is that where there's a series of interlocutory orders,

02:03 - 52.591 the it's the terminal order that does it.

02:03 - 56.095 Even if the last order as a petition for reconsideration.

02:03 - 59.899 If you look at Cabot and you look at the Cabot Jones,

02:04 - 03.903 Matt Grogan,

02:04 - 08.107 and Mike on the fourth case, if you look at those cases,

02:04 - 11.610 none of those involve serial reconsideration orders.

02:04 - 13.946 One of them involves a motion for trial.

02:04 - 16.949 Non pro tunc Cabot happens to involve

02:04 - 21.487 one petition for reconsideration, which the court denied.

02:04 - 25.825 The appeal was taken for that and consistent with all its prior

02:04 - 30.196 cases, the Superior Court said it's the terminal order.

02:04 - 31.030 That's the one.

02:04 - 34.967 That's that's that's the one that's appealable or they're all appealable.

02:04 - 40.973 But because 311, 312 and 313, all say may be appealed, not must be appealed.

02:04 - 42.408 Within 30 days.

02:04 - 44.944 You can wait to appeal the terminal order.

02:04 - 50.216 And we don't care if the terminal order is a denial of reconsideration

02:04 - 53.519 because we're not looking at reconsider it.

02:04 - 57.389 We're not considering that an appeal of denial of reconsideration.

02:04 - 01.026 We're considering it an appeal of all the predecessor orders.

02:05 - 04.730 And I would also point out that rule 51. Oh,

02:05 - 08.534 make sure I don't miss cite the rule.

02:05 - 11.537 Rule 51 05A2

02:05 - 14.507 provides an exception

02:05 - 17.610 for agency denials of reconsideration.

02:05 - 19.778 It makes those appealable as of right.

02:05 - 22.681 And now, admittedly,

02:05 - 24.250 that is that's limited

02:05 - 27.553 to the denial of reconsideration, not the merits of the order.

02:05 - 32.958 But there's an exception right there to the reconsideration.

02:05 - 34.159 Orders aren't appealable.

02:05 - 37.363 It's by statute, but it's an exception nonetheless.

02:05 - 40.599 So to say that, well,

02:05 - 44.403 the reconsideration rules ironclad, it's clearly not.

02:05 - 47.439 There's already been exceptions to it.

02:05 - 51.176 And what Superior Court has done here

02:05 - 56.382 is actually eliminate the need to appeal.

02:05 - 59.585 Belt and suspenders says that

02:05 - 02.855 every time there's an interlocutory order,

02:06 - 06.125 if you think it's an appeal as of right, maybe you'd better appeal it.

02:06 - 08.093 Maybe you better seek an appeal by.

02:06 - 10.563 Well, that's not necessarily true for collateral orders.

02:06 - 11.030 What's that?

02:06 - 13.532 That's not necessarily true for a collateral order.

02:06 - 15.734 A collateral order may be appealed immediately,

02:06 - 18.337 but it doesn't have to be appeal. Right. Exactly.

02:06 - 19.505 Exactly.

02:06 - 23.709 What I'm saying is it says it may be appealed and you don't waive it,

02:06 - 28.681 but belt and suspenders says maybe I should, maybe I should appeal this.

02:06 - 32.384 The Superior Court eliminates that completely and says,

02:06 - 33.986 oh, if your client would have appealed it,

02:06 - 36.855 if your client would have appealed it within 30 days, we wouldn't be here.

02:06 - 40.626 Council, can I ask you?

02:06 - 42.394 But it's just done here.

02:06 - 44.496 I don't know where the invoice comes from, but.

02:06 - 44.830 Yeah.

02:06 - 48.267 Let me let me ask you a question about our rules.

02:06 - 54.073 Our rules regarding,

02:06 - 59.044 what happens when a motion for reconsideration is filed?

02:06 - 04.917 That rule being, you can file it, but you still have to take your appeal

02:07 - 07.419 within the appeal period. Correct.

02:07 - 08.921 That's the 17th at 70.

02:07 - 13.192 You know, that rule does not now apply to collateral orders, correct?

02:07 - 13.892 That's correct.

02:07 - 18.330 So if we amended our rules of procedure to make clear

02:07 - 23.268 that in the context of collateral orders from which a motion

02:07 - 26.872 for consideration could be filed, I mean, discovery, motion or

02:07 - 32.611 any on privilege or things of that nature, if we make our rules clear that if,

02:07 - 35.948 you want to file a motion for reconsideration,

02:07 - 39.952 just like with every other appeal, you still have to protect your appeal.

02:07 - 40.653 We'd be okay.

02:07 - 43.022 Yes. Okay.

02:07 - 47.793 Or if if you don't file europeo, but you still file your motion

02:07 - 50.462 for reconsideration, you still have the ability

02:07 - 53.766 with the collateral order to appeal it at the end of the case.

02:07 - 57.136 Yes. Okay.

02:07 - 01.440 So I mean, really our problem here is really a failure of our rules

02:08 - 04.910 to make clear what happens,

02:08 - 07.813 with collateral orders to sync it

02:08 - 13.352 with what happens with motions of reconsideration that are filed

02:08 - 17.890 in any other context, you could file it, but you have to file your appeal. Yes.

02:08 - 21.960 I think what I think what underlies some of the confusion here is that the,

02:08 - 26.598 there's a that the thou shalt not appeal,

02:08 - 31.170 a denial of reconsideration is associated with final rules under rule 344.

02:08 - 33.205 And that's a jurisdictional issue. Yes.

02:08 - 36.842 And it's we don't have with collateral law despite in order to preclude this

02:08 - 41.647 from happening again, if we if we fixed our rules

02:08 - 45.184 and encompassed collateral orders,

02:08 - 48.887 within the rules that otherwise apply to motions

02:08 - 52.591 for reconsideration, that would take care of this problem entirely.

02:08 - 56.395 It doesn't help your client, but it would eliminate this problem going forward.

02:08 - 59.732 Yes, that would that would be that would certainly be a way to fix it.

02:09 - 01.333 What spirit.

02:09 - 03.001 What I mean, truly, why not?

02:09 - 05.637 Because you it bothers me about what you're talking about.

02:09 - 08.640 Is there a lot of considerations at play?

02:09 - 13.312 But you have to keep in mind that while someone is waiting,

02:09 - 15.881 you know, to file yet another motion

02:09 - 19.451 for reconsideration or judge, can I just raise this one more time?

02:09 - 22.020 The case is going on.

02:09 - 25.190 And so it it screws up the litigation.

02:09 - 26.892 It delays it.

02:09 - 32.731 It inserts complexities into a case where if six months later,

02:09 - 35.901 a judge says, you know, you're right, I should never have done that.

02:09 - 36.902 Okay.

02:09 - 40.072 So now you have six months of litigation that's going on.

02:09 - 42.775 So and I believe that's the reason

02:09 - 46.478 for the general rule that doesn't apply to collateral orders.

02:09 - 48.447 But otherwise applies, which is fine.

02:09 - 50.716 You can file your motion for consideration.

02:09 - 53.852 But it's not going to stop the litigation.

02:09 - 55.587 Right okay.

02:09 - 59.658 No that's that as we've said that would be that would be a way to fix it.

02:10 - 01.994 Give you an in court's imprimatur.

02:10 - 04.263 What Superior Court did is another way to fix it.

02:10 - 07.232 But how is that fix the problem that I just raised,

02:10 - 11.270 which is you have litigation going on around this time where someone's

02:10 - 13.772 contemplating whether or not just one more time,

02:10 - 16.041 they're going to ask the court to reconsider

02:10 - 18.010 something that they've already ruled on.

02:10 - 20.913 That's what the parties I was referring to,

02:10 - 26.351 the sort of the interlocutory order issue, but I think is, Your Honor, is correct

02:10 - 30.122 that that would eliminate that question across the board.

02:10 - 32.524 What you said would eliminate the question across the board.

02:10 - 33.859 Well, I mean, the

02:10 - 37.296 I mean, that kind of presupposes there's a problem.

02:10 - 40.833 I mean, isn't isn't it the case that the way things stand now

02:10 - 44.703 that the litigant has to pick a horse and ride it?

02:10 - 49.441 In other words, you know, is this is this the final order, or is this thing,

02:10 - 53.512 is this the order that is, you know, get a fit within the collateral order,

02:10 - 57.282 circumstances and take that appeal,

02:10 - 59.551 you know, or follow the, you know, follow

02:10 - 02.688 the so and I do want to say, by the way,

02:11 - 05.691 which I should have said at the beginning, is thank you for taking this point.

02:11 - 06.925 Oh, thank you very much.

02:11 - 08.727 I appreciate the opportunity.

02:11 - 11.797 It actually turned out to be a much more interesting case.

02:11 - 18.003 When I talked to David Fine about it, it was a, rule of appellate procedure issue.

02:11 - 19.905 And then when I looked more closely at it

02:11 - 22.374 and it actually, as long as you're doing that, I would like to,

02:11 - 24.576 give kudos

02:11 - 27.579 to your Eastern District Attorney's office here.

02:11 - 31.416 When I first got the case, I could not access the,

02:11 - 34.586 I could not access the record,

02:11 - 38.090 and the court and the attorneys office couldn't do it.

02:11 - 41.526 So they actually started sending me giant PDFs,

02:11 - 43.896 the record.

02:11 - 44.630 And then all of a sudden,

02:11 - 47.633 one day they called up and said, oh, we think we got it fixed.

02:11 - 49.935 And then I was able to access the record.

02:11 - 52.938 And it was once I got into the record,

02:11 - 57.476 you know, essentially it was if you looked at the last filing,

02:11 - 02.948 in the last filing and the record, it had every other filing attached to it.

02:12 - 05.984 So it was kind of a mess, which is why we ended up with a, a

02:12 - 09.121 reproduced record, simply because that actually helped me.

02:12 - 11.156 So what was going on? But,

02:12 - 14.293 I'm not sure.

02:12 - 17.296 You know, we we might have had trouble getting something filed

02:12 - 19.831 without the attorney's office helping us out.

02:12 - 21.033 So thank you very much for that.

02:12 - 24.002 I appreciate and thank you for the opportunity.

02:12 - 27.906 Just let me close by saying one thing.

02:12 - 30.075 Essentially,

02:12 - 32.377 Miss Cleo

02:12 - 34.479 followed

02:12 - 37.616 the case law out there when she did what she did

02:12 - 41.887 and had Superior Court simply done the same thing,

02:12 - 46.491 her appeal would have been timely and it would have been decided

02:12 - 49.795 and we might not have been here.

02:12 - 53.598 So she actually it was in some way

02:12 - 57.502 she's here because Superior Court failed to follow its own rules.

02:12 - 00.706 Now, whether that survives this case or not,

02:13 - 05.310 remains to be seen because, it's it's not clear to me

02:13 - 09.247 the court thinks it has jurisdiction over the appeal, to begin with.

02:13 - 11.984 So we'll see. What happens. But

02:13 - 14.152 I would just close by

02:13 - 17.923 saying we will rely on our briefs for the arguments we made.

02:13 - 20.258 I won't take up any more of the court's time.

02:13 - 23.261 I appreciate both the time and the opportunity.

02:13 - 26.898 And, unless somebody else has any further questions.

02:13 - 28.800 Oh, and just one other thing.

02:13 - 33.872 I think our disagreement was, you know, that Miss Carlisle's so special.

02:13 - 36.308 The argument isn't that she's special.

02:13 - 41.646 The argument is that once there's pro bono representation,

02:13 - 44.983 there is a higher level of.

02:13 - 48.653 Practice expected

02:13 - 53.291 from lawyers and that that is the public that is the public policy,

02:13 - 56.495 which would be a new that would be a new ruling by our club.

02:13 - 59.031 Oh yes. Absolutely, absolutely.

02:13 - 02.334 And as I said, we did in our in our briefs, we distinguished

02:14 - 06.204 we excuse me, we distinguished Boshier or we tried to at least

02:14 - 08.173 anyway, Shearer and Bicone,

02:14 - 10.709 which was

02:14 - 13.845 another case involving disqualification of counsel.

02:14 - 16.581 So we'll stick with those arguments.

02:14 - 18.884 We'll stick with those arguments that we made.

02:14 - 22.487 And we appreciate the, appreciate the court's time and attention.

02:14 - 23.989 Thank you. Thank you.

02:14 - 26.825 It was very much. Thank you.

02:14 - 31.163 We are going to take a recess for lunch until 1230

02:14 - 34.966 for the rest of the.

02:14 - 42.641 Our next case

02:14 - 45.677 is Commonwealth of Pennsylvania versus Antwan Roper.

02:14 - 49.948 And it involves a criminal defendant, sixth amendment right to a public trial.

02:14 - 54.886 Roper was arrested in September 2019 and charged with murder and related

02:14 - 58.723 firearms offenses in connection with a shooting earlier that year.

02:14 - 04.563 He was tried before a jury from March 6th, 2023 through March 10th of 2023

02:15 - 07.933 and convicted of first degree murder and a firearms offenses.

02:15 - 10.569 He was sentenced to life imprisonment.

02:15 - 14.372 The issue that's critical to this appeal occurred during jury selection.

02:15 - 17.542 When jury selection began on March 6th,

02:15 - 20.545 the trial court broadened a pool of potential jurors.

02:15 - 22.647 Because the pool was so large,

02:15 - 25.650 the trial court determined there was not enough room in the courtroom

02:15 - 29.020 for both the large jury pool and the spectators.

02:15 - 32.023 In response, the trial court ordered all spectators,

02:15 - 35.026 including Roper's family, out of the courtroom.

02:15 - 38.630 As the court explained, we have no room on the record.

02:15 - 41.633 We have no room in which to keep the individuals here.

02:15 - 43.001 We have no place to put them

02:15 - 46.538 and we have no availability in order for them to watch from afar.

02:15 - 50.075 So based on that, we're going to put the jury panel in here

02:15 - 54.045 and give them the very basic instructions and then we will select the jury.

02:15 - 55.947 After the

02:15 - 59.184 spectators left, the trial court, swore in the jury pool

02:15 - 02.821 and issued a general instruction about what takes place during trial.

02:16 - 07.626 The court questioned the pool members about anyone who had potential conflicts

02:16 - 11.296 or hardships after those potential jurors were excused,

02:16 - 14.432 thereby creating more space in the courtroom.

02:16 - 17.369 The spectators, including Roper's family,

02:16 - 20.772 were readmitted with the spectators in the courtroom.

02:16 - 22.541 The remaining pool members were questioned

02:16 - 25.544 individually, and a jury was ultimately selected.

02:16 - 30.182 Roper appealed the closure of the courtroom for this purpose, arguing

02:16 - 33.919 that it violated his constitutional right to a public trial.

02:16 - 39.324 The trial court rejected the argument, and Roper appealed to the Superior Court.

02:16 - 43.895 A three judge panel of the Superior Court also rejected this argument,

02:16 - 48.400 citing the United States Supreme Court's decision in Presley versus Georgia.

02:16 - 51.203 In Presley, the Supreme Court held

02:16 - 54.272 that a criminal defendant has the right to a public trial,

02:16 - 58.443 and the violation of that right is a structural defect in the trial.

02:16 - 01.947 However, that court also stated

02:17 - 04.616 that a trial court may close the courtroom

02:17 - 07.652 if four factors are met an overriding interest.

02:17 - 11.623 The closure is no broader than necessary to protect that interest.

02:17 - 14.526 The court has considered reasonable alternatives,

02:17 - 17.062 and the court makes findings to support the closure.

02:17 - 21.132 The Supreme Court noted that under this four part test,

02:17 - 24.669 courtrooms can be closed to keep certain evidence confidential

02:17 - 28.173 and also to allow the trial judge to maintain order and safety.

02:17 - 32.010 Applying those four factors to Roper's case,

02:17 - 36.448 the Pennsylvania Superior Court concluded that there was an overriding interest,

02:17 - 39.451 as the pool of potential jurors was so large

02:17 - 43.521 that excluding the public was necessary to seat the jury pool.

02:17 - 45.757 The Supreme Court also agreed.

02:17 - 49.628 The Superior Court also agreed that the closure was no broader

02:17 - 52.998 than necessary, as a trial court allowed Roper's family

02:17 - 56.001 to return during questioning of individual jurors

02:17 - 59.271 that the trial court's procedure was a reasonable alternative,

02:17 - 02.340 and finally, that the trial court had placed

02:18 - 05.610 sufficient findings on the record to support its decision

02:18 - 09.281 to close the courtroom for a portion of jury selection.

02:18 - 13.318 The Pennsylvania Supreme Court has granted Roper's petition

02:18 - 16.321 for allowance of appeal limited to the following question

02:18 - 20.091 did the trial court violate petitioner's Sixth Amendment right

02:18 - 24.529 to a public trial and commit a structural error when it precluded

02:18 - 27.666 petitioner's family from part of jury selection?

02:18 - 30.702 Let's listen to the arguments in Commonwealth

02:18 - 33.705 versus entertain, Roper.

02:18 - 35.740 Good afternoon.

02:18 - 37.275 Good afternoon.

02:18 - 40.712 In this case, appellant was charged with first degree murder

02:18 - 45.183 and other offenses related to a fatal shooting in Philadelphia.

02:18 - 50.221 During a portion of jury selection, the trial court excluded

02:18 - 55.327 public spectators from the courtroom, including appellant's family.

02:18 - 58.830 During this time and over appellant's objection,

02:18 - 04.836 the trial court swore in 60 prospective jurors, gave them general instructions

02:19 - 10.208 regarding the responsibilities, explained what they could expect during trial,

02:19 - 15.714 and inquired about each prospective jurors familiarity with the trial judge.

02:19 - 18.717 The parties attorneys, potential witnesses,

02:19 - 22.020 any knowledge of the facts surrounding the case.

02:19 - 26.758 Thereafter, the trial court permitted the public to return to the courtroom

02:19 - 31.296 to observe individual voir dire questioning of the prospective jurors.

02:19 - 34.699 Ultimately, the jury found

02:19 - 37.669 appellant guilty of all charges.

02:19 - 40.305 He appealed to the Superior Court,

02:19 - 43.308 arguing that he was entitled to a new trial

02:19 - 47.078 because the trial court violated his Sixth Amendment right

02:19 - 51.015 to a public trial and committed structural error

02:19 - 55.420 by closing for dear to the public after he requested

02:19 - 59.290 that his family be permitted to retain remain in the courtroom,

02:19 - 03.395 failing to consider reasonable alternatives to the closure

02:20 - 08.133 before excluding the public and his family, and failing to place

02:20 - 12.203 adequate findings on the record to justify its decision,

02:20 - 17.776 the Superior Court affirmed appellant's judgment of sentence, finding that

02:20 - 23.148 the number of prospective jurors and limited seating in the courtroom

02:20 - 27.752 created an overriding interest that justified the courtroom closure.

02:20 - 32.390 It further determined that the closure was no broader than necessary

02:20 - 37.495 to address those spacing concerns, and that the trial court

02:20 - 41.633 placed sufficient findings on the record to justify its decision.

02:20 - 45.437 We accepted for review to address the propriety

02:20 - 48.440 of the Superior Court's determinations.

02:20 - 51.376 We also directed the parties to address

02:20 - 54.379 whether the courtroom closure was de minimis,

02:20 - 59.284 and whether de minimis closures implicate the public trial right,

02:20 - 02.954 and are subject to the standards announced by the U.S.

02:21 - 07.926 Supreme Court in Waller versus Georgia and Pressly versus Georgia.

02:21 - 09.194 Please proceed.

02:21 - 10.562 Good afternoon, Your Honors.

02:21 - 13.565 John Rooney, on behalf of the appellant, Antwan Roper.

02:21 - 17.101 And in this case, the trial court did commit a structural error

02:21 - 21.973 when it engaged in a total courtroom closure in violation of the appellant's

02:21 - 25.176 Six Amendment right to a public trial.

02:21 - 28.780 Now, whether this is de minimis or not,

02:21 - 32.584 Waller and Pressly still apply,

02:21 - 35.954 and the trial court has to go through the analysis of those factors.

02:21 - 37.222 They have to find

02:21 - 40.225 that there's an overriding interest that's likely to be prejudiced,

02:21 - 43.561 that the closure is no broader than necessary to protect the interest,

02:21 - 47.065 and a trial court has to consider reasonable alternatives

02:21 - 50.068 and make adequate findings on the record.

02:21 - 52.737 Just because it's de minimis doesn't mean that Waller

02:21 - 55.673 no longer applies, or that Presley no longer applies.

02:21 - 59.310 That's the law the United States Supreme Court, and it's still good law.

02:22 - 00.879 And in this

02:22 - 04.649 case, they did not analyze those factors whatsoever.

02:22 - 08.086 What they did is they invited to venire in.

02:22 - 10.388 Here's a 60 person veneer.

02:22 - 14.192 And then they said there's no room for any spectators specifically

02:22 - 20.198 excluding the defendant's family and trial counsel petitioned the court

02:22 - 23.501 to have defendant's family present during jury selection.

02:22 - 27.639 Let me let me stop you there, because it's an issue that I kind of came up with.

02:22 - 30.208 How do you contend that occurred?

02:22 - 30.742 Excuse me.

02:22 - 31.943 How do you contend that occurred?

02:22 - 34.946 Because you said he petitioned the court to have it open

02:22 - 39.517 for my reading of the record after the court closed the courtroom,

02:22 - 42.887 the trial judge, which was judge O'Keeffe, was talking to defense

02:22 - 45.890 counsel and defense counsel said something along the lines of judge,

02:22 - 49.694 I think there was a supreme Court case that came down something along the lines

02:22 - 51.429 that that's not a good idea. Yeah.

02:22 - 53.231 And he asked to have the family in.

02:22 - 55.433 And then there was an off the record conversation,

02:22 - 56.935 which is part of the issue to you.

02:22 - 59.137 You think that's enough to preserve this particular issue for?

02:22 - 01.739 I think it is preserved by the record.

02:23 - 05.843 And it shows that he said based on that case law, they didn't even cite the case.

02:23 - 07.111 He said there was some kind of case.

02:23 - 08.246 And the judge O'Keeffe said, yeah,

02:23 - 10.515 I think I heard something about that, you know, the name of the case.

02:23 - 12.050 And he threw a joke at them.

02:23 - 14.052 He said, oh, now you're really testing me.

02:23 - 16.020 I have no idea what it's all about.

02:23 - 19.023 And he said, for the record, I just have to put my objection on the record.

02:23 - 21.359 Yeah. The objection to having the family removed.

02:23 - 22.794 You think that's enough to kind of preserve?

02:23 - 25.530 I think that is preserved. Sixth amendment public trial.

02:23 - 27.632 I think so, okay, I believe so.

02:23 - 31.202 And the Sixth Amendment right to a public trial applies to voir dire.

02:23 - 34.706 And, you know, part of the argument here on the Commonwealth's behalf

02:23 - 37.709 and what the court is questioning is, was this de minimis?

02:23 - 41.980 Well, de minimis is not a standard that has been adopted by Pennsylvania

02:23 - 43.648 state courts at this point in time.

02:23 - 46.184 There's a two part I'm sorry, I don't mean know.

02:23 - 47.652 There's a two part comment with argument.

02:23 - 48.853 The first one is that

02:23 - 51.656 this was during the general instructions, and that general instructions

02:23 - 55.426 really don't apply to voir dire, because all they did was identify

02:23 - 59.430 areas of inquiry which were actually asked about an individual voir dire.

02:23 - 02.066 When individual voir dire happened, the family was allowed back

02:24 - 03.034 into the courtroom.

02:24 - 04.369 So one of the questions I'm

02:24 - 07.538 sure you're going to get from that side of the room is where do we draw that line?

02:24 - 09.407 Well, that's the issue.

02:24 - 11.643 When you say something is de minimis, what is the metric?

02:24 - 14.379 Is it 20 minutes? Is it 40 minutes? Is it two hours?

02:24 - 17.115 Is there even a violation of the right to a public trial?

02:24 - 19.350 There is a violation because it's a structural error.

02:24 - 22.353 And only if we find that this was voir dire.

02:24 - 25.823 Every juror, every every voir, every person who gets a jury

02:24 - 29.127 notice comes to the room downstairs in the CJC, right, or in City Hall.

02:24 - 31.262 They're giving general instructions.

02:24 - 33.031 They're asked to fill out the forms.

02:24 - 34.866 Is that part of what here. What?

02:24 - 36.300 This was in the courtroom.

02:24 - 36.934 They understand that.

02:24 - 39.170 But I'm asking you, was that part of our dear?

02:24 - 40.672 No, that wouldn't be part of what they're.

02:24 - 41.539 So when they bring them up

02:24 - 44.542 to the courtroom in this case, they bring 60 people up, they're sat down.

02:24 - 46.411 The judge says there's no room in the courtroom.

02:24 - 49.080 I'm going to ask you to step out for general instructions.

02:24 - 51.516 He gives them general instructions. We all seen it.

02:24 - 53.184 Everybody's given a little number.

02:24 - 55.653 They're asked certain questions. They put the number up.

02:24 - 58.589 Then when they get to the individual voir dire,

02:24 - 00.858 you inquire about why they raise their number up.

02:25 - 03.628 So that's what I'm asking you.

02:25 - 05.463 What's voir dire and what's not voir dire?

02:25 - 06.931 Because this happened during

02:25 - 09.400 the courtroom was closed during the general instructions.

02:25 - 12.403 No different than when they appeared downstairs in the jury room.

02:25 - 15.139 And then the family was allowed back in for the individual.

02:25 - 17.542 Voir dire may well supplement that question.

02:25 - 20.545 Justice McCaffery. Is fine.

02:25 - 21.979 What's that? Yes.

02:25 - 26.551 With respect to, the individual questions, I agree

02:25 - 31.489 there were no individual questions, but there were beyond general instructions.

02:25 - 35.927 There were general questions such as, do you know the defendant?

02:25 - 37.628 Do you know his family members?

02:25 - 40.231 Do you know, counsel?

02:25 - 44.936 And those questions were asked without the defendant's family sitting there, right?

02:25 - 45.536 Correct.

02:25 - 48.639 And if there were denied, I wasn't requested to participate then

02:25 - 53.911 and then those those individual questions are used to identify follow up questions

02:25 - 57.415 for the individual voir dire right for which the family member is correct.

02:25 - 00.918 But that would be the start of what year when they were excluded?

02:26 - 03.921 Well, they weren't downstairs when the when

02:26 - 06.991 the jury when did your prospective juror showed up to answer the question.

02:26 - 09.060 Here's where they know not the questionnaires are not

02:26 - 10.528 they're not down in the main room. Now.

02:26 - 12.497 Now that counts for voir dire them.

02:26 - 14.465 But when they invite them into the courtroom

02:26 - 17.101 and begin to actually select the jury,

02:26 - 20.104 that would be one point where where does that start in your mind?

02:26 - 23.708 Just that's that's the issue with the de minimis standard.

02:26 - 25.109 That's the issue.

02:26 - 28.012 What is the metric? Well, let me ask you this question then.

02:26 - 30.681 What's the difference between what is asked in the general

02:26 - 33.217 and what's they asked in this specific voir dire.

02:26 - 36.354 And we don't know based on the record that's before the court.

02:26 - 38.823 It wasn't really graphically transcribed.

02:26 - 42.260 And there were questions asked like, who do you know?

02:26 - 43.961 Do you know anybody involved in the trial?

02:26 - 45.930 Is there any reason you can't participate?

02:26 - 48.933 And the family wasn't included in that process.

02:26 - 51.669 And as a lawyer, sometimes you might want to consult with the family.

02:26 - 56.240 I'm sorry I couldn't hear justice.

02:26 - 57.141 Why wasn't it?

02:26 - 01.345 Well, so the portion where they were excluded was transcribed.

02:27 - 03.915 And then individual voir dire when that started.

02:27 - 06.617 We don't know because that wasn't transcribed.

02:27 - 09.187 It doesn't matter under your theory though, correct?

02:27 - 09.887 Correct.

02:27 - 10.188 Okay.

02:27 - 13.191 And the jurors were sworn.

02:27 - 17.328 My point was that maybe it wasn't transcribed

02:27 - 21.833 because void year, as described by justice McCaffery, hadn't commenced.

02:27 - 25.136 That's that's my point.

02:27 - 25.503 Sorry.

02:27 - 28.773 Our position would be that voir dire had commenced, that

02:27 - 33.044 the guarantee of a public trial extends to voir dire per the case law.

02:27 - 36.480 That's relevant, and that they were excluded from the voir dire.

02:27 - 39.684 And if we start talking about de minimis no harm,

02:27 - 43.020 no foul, we're essentially getting into, is this a harmless error?

02:27 - 44.655 Is it prejudicial?

02:27 - 47.491 And this is a structural error in which you're entitled

02:27 - 51.462 to following your logic when they hold the sidebar during voir

02:27 - 54.599 dire off the record is that structural error because it's

02:27 - 58.636 not open to the public when they hold the sidebar, but the record?

02:28 - 04.208 If if they're excluded from the courtroom,

02:28 - 08.012 if it's a total courtroom closure, the concept is it's a public trial.

02:28 - 12.450 The exclusion of the excluding from the courtroom isn't the issue.

02:28 - 16.254 It's that people are not permitted to see a public trial.

02:28 - 20.091 That's the intent and the concept,

02:28 - 22.693 not we're just moving the family out.

02:28 - 25.897 It's that they're precluded from participating in a public trial.

02:28 - 30.001 The question I have for you, if that's the logic of your argument,

02:28 - 33.404 is the sidebar that they had during voir dire

02:28 - 36.507 between counsel and the judge in a public courtroom,

02:28 - 41.178 but not heard, is that violation of the concept of a free and public trial?

02:28 - 42.213 Very public trial?

02:28 - 45.182 No, not not not at the family and the public in the courtroom.

02:28 - 46.851 I would say it's not.

02:28 - 47.852 And why not?

02:28 - 50.788 They're not able to hear they have no nothing which they don't know

02:28 - 51.856 what's being said,

02:28 - 55.493 but they're present there and they can ensure the fairness and

02:28 - 57.862 part of the principles behind this right of the section

02:28 - 58.863 that they could be assured

02:28 - 01.832 when the prosecutor says, I don't like and let's convict them.

02:29 - 04.201 Well, the attorney for that, he didn't pay me.

02:29 - 06.437 And the judge says, good, I want to send them to jail.

02:29 - 07.939 So possible.

02:29 - 11.375 But so that's not that that's permitted under your argument.

02:29 - 14.612 Or the attorney for the defendant could then engage with the family

02:29 - 18.115 and talk about what happened at sidebar and get their input.

02:29 - 19.617 Is that any

02:29 - 23.654 different than the lawyer going outside speaking to the family,

02:29 - 26.724 saying, hey, they just asked if anybody knows your son,

02:29 - 30.528 but we're going to get into the details of what I'm just saying. Why?

02:29 - 33.764 Well, under that logic, we can just close the courtroom,

02:29 - 37.001 not have anybody present during voir dire, but that does

02:29 - 38.803 I don't I'm not following what you're arguing.

02:29 - 40.705 You and me either. Not consulting with the family.

02:29 - 43.074 The right is not the family. The rights, the defendant.

02:29 - 45.176 The defendant has a right to a public trial.

02:29 - 47.712 Yes, we we we we have that.

02:29 - 51.782 We give that right to the defendant to make sure that the public has a right

02:29 - 54.986 to see what's happening in the courtroom, following with Justice, Daugherty said.

02:29 - 58.789 If, as a defense counsel on the prosecutor, go to sidebar with the judge.

02:30 - 04.028 What rights being violated?

02:30 - 05.696 I didn't say that would be a violation.

02:30 - 08.699 If they're in the courtroom, in a courtroom, why not?

02:30 - 11.068 What? Well, I think the important point is.

02:30 - 13.137 Sorry, I didn't mean to cut you off there. No, I'm I'm just.

02:30 - 14.171 The important point is that

02:30 - 17.308 if you engage in a courtroom closure, which is exactly what happened

02:30 - 20.811 here, it's on the record where they say there's not enough room.

02:30 - 22.313 Families got to get out.

02:30 - 23.914 They said, don't even stand in the hallway.

02:30 - 25.116 Go get something to eat.

02:30 - 26.884 Come back in two hours.

02:30 - 28.652 That's a total courtroom closure.

02:30 - 30.821 I understand that, but it's a courtroom closure.

02:30 - 31.322 For what?

02:30 - 34.892 Say we had a courtroom closure for a motion to suppress?

02:30 - 37.895 Where you have an undercover agent, where you have a confidential informant.

02:30 - 41.932 The case law says in no circumstances you're allowed to court the public.

02:30 - 43.801 You're allowed to close the courtroom.

02:30 - 45.369 My question to you is this.

02:30 - 46.003 We've all done.

02:30 - 49.006 These 60 people come in, you're all given a number.

02:30 - 51.075 You asked General questions.

02:30 - 51.409 All right.

02:30 - 53.144 You know anybody here quick.

02:30 - 54.512 Number four, number 15.

02:30 - 56.814 Number 21 goes up. Court officers writing.

02:30 - 58.349 Not these numbers down.

02:30 - 00.251 You're not asking follow up questions, right?

02:31 - 01.886 You picked juries before in Philadelphia.

02:31 - 02.620 Correct.

02:31 - 05.189 Judges I'm going to say who do you know in front of everybody else.

02:31 - 07.825 Because obviously you don't want to prejudice anybody.

02:31 - 10.561 So all you're doing is you're identifying areas

02:31 - 13.664 of inquiry for the voir dire or the individual voir dire.

02:31 - 14.832 Right.

02:31 - 17.068 You agree with me on that. I agree with you.

02:31 - 18.836 What's the difference between that

02:31 - 21.839 and when somebody fills out their questionnaire downstairs?

02:31 - 23.574 Well, I mean fill out information

02:31 - 25.142 about where they're from, what neighborhood they're from.

02:31 - 26.577 Do you know anybody in the system?

02:31 - 28.679 They're identifying general areas

02:31 - 31.415 that you're going to get into on their individual voir dire.

02:31 - 34.452 So the courtroom is closed for general questioning.

02:31 - 37.221 And then the families let back in.

02:31 - 39.390 And all of these people who showed up with a number,

02:31 - 42.626 put their number up, are then asked about their questionnaire,

02:31 - 46.063 and then they're asked about the follow up questions on the general.

02:31 - 50.367 So my question to you is what's the violation of a right to a public trial?

02:31 - 52.937 If a family is allowed back in for the individual voir dire?

02:31 - 56.040 What Your Honor

02:31 - 59.043 is suggesting is that it was harmless error.

02:31 - 00.277 I'm not suggesting anything.

02:32 - 02.513 I'm telling you how this system works.

02:32 - 05.149 I'm asking you where the line is drawn.

02:32 - 06.484 I think that was my guess.

02:32 - 08.953 My point to for my simple question is this.

02:32 - 11.856 When does voir dire start in your mind?

02:32 - 12.556 It says it start

02:32 - 15.993 when I get the notice and have to go down and fill out the paperwork downstairs.

02:32 - 18.429 No, I wouldn't think so. About when.

02:32 - 21.465 I think when they come into the court, 60 people are called and they're led up

02:32 - 25.136 and said, you're going to judge McCarty's room in courtroom 602 for trial today.

02:32 - 25.636 Does it start

02:32 - 29.640 then when they go into the courtroom to begin the jury selection process?

02:32 - 32.910 When does that begin, though, when they go into the courtroom.

02:32 - 35.813 So there's general instructions and then there's specific instructions.

02:32 - 39.650 So what right is violated if I'm preserving my rights by

02:32 - 41.218 by allowing the family back in

02:32 - 44.388 for individual voir dire, isn't that when the selection starts.

02:32 - 47.591 Well it started before that.

02:32 - 50.594 And what they did was they totally closed the courtroom

02:32 - 53.797 when the jury was invited into the courtroom.

02:32 - 57.935 And they did the initial questioning, and there was some further questioning there,

02:32 - 01.472 and they kicked the family out and had come back in two hours.

02:33 - 04.308 That that's a total courtroom closure.

02:33 - 07.778 And the only reason that they gave is that there was no room.

02:33 - 12.349 And the case law tells us, Presley says that capacity is not a reason

02:33 - 15.452 to exclude the public from the room.

02:33 - 19.890 They could have had a smaller veneer, but it less potential.

02:33 - 22.693 Jordan, is that your argument also that,

02:33 - 27.231 there wasn't enough information put on the record to tell

02:33 - 32.903 if this was justifiable, that not every closure of a courtroom is objectionable?

02:33 - 36.607 If, you can demonstrate that,

02:33 - 40.744 there simply wasn't room, there was no way to divide up the jurors.

02:33 - 43.414 There wasn't a bigger space.

02:33 - 45.349 There wasn't an overflow space.

02:33 - 46.884 Is that part of your argument?

02:33 - 48.018 That is part of the argument?

02:33 - 50.754 And I would say that

02:33 - 54.725 capacity issues have never been deemed an overriding interest.

02:33 - 00.297 And if that was going to be the justification for an overriding interest,

02:34 - 03.567 there needs to be reasonable alternatives explored.

02:34 - 06.570 And again, my example would be instead of inviting

02:34 - 09.573 60, invite 45 it

02:34 - 13.644 because it isn't the right to a public trial and the constitutional rights

02:34 - 16.647 of the defendant more important than the convenience of the courtroom.

02:34 - 18.916 What what would have

02:34 - 23.020 going on with your 60 over 45?

02:34 - 27.324 How many seats would the court have to leave available

02:34 - 30.995 for the public to not violate the Sixth Amendment?

02:34 - 31.262 Right?

02:34 - 34.832 In your and your view, I don't know if there's a specific number.

02:34 - 36.967 And again, that's part of you just gave a specific number.

02:34 - 38.302 You want 60 to 45.

02:34 - 40.804 That was your 15. An example okay.

02:34 - 44.108 In this case there were I think four family members

02:34 - 47.478 and they kicked them all out.

02:34 - 48.846 What if it was 100?

02:34 - 51.815 What if this is a matter of great public interest,

02:34 - 55.052 a police officer shooting, something that all the public's interested

02:34 - 58.055 in, and 100 people show up and they want to sit in that courtroom.

02:34 - 01.592 How do we think a jury that could potentially be an overriding interest?

02:35 - 04.595 So you think that under that circumstance, it's

02:35 - 08.499 okay if they explore alternatives and place the reason on the record?

02:35 - 12.603 Part of the issue we have here, as Chief Justice Todd pointed out, was that

02:35 - 17.074 there was an off the record conversation and we have an absence of findings

02:35 - 22.313 or exploring any reasonable alternatives which they're required to do under Waller.

02:35 - 25.382 The remedy you're requesting is for us to send this back to the trial court

02:35 - 26.984 to give the Waller factors on the record,

02:35 - 29.653 to let

02:35 - 31.522 I think at this point,

02:35 - 34.325 we know there was a total courtroom closure.

02:35 - 38.429 It's our position that this is a structural error that requires reversal.

02:35 - 41.131 And when you get into this de minimis,

02:35 - 44.234 you're talking about harmless error, you're talking about prejudiced,

02:35 - 48.806 which is not an appropriate inquiry under the law.

02:35 - 52.976 And even if it is de minimis, you still have to go

02:35 - 54.345 through the Waller factors.

02:35 - 59.249 If the de minimis standard applies, which it doesn't exist here in Pennsylvania.

02:35 - 00.351 And that's what we're here for,

02:36 - 03.354 I guess today is to determine, is that going to exist?

02:36 - 05.689 Counsel, can I ask you a technical question?

02:36 - 07.958 Did you try the case where you here in this?

02:36 - 11.195 No, I represented I'm at the preliminary hearing and then a different attorney.

02:36 - 14.998 The one thing that confuses me is, as I'm reading the record,

02:36 - 20.671 one of the jurors, by consent of both parties, was dismissed.

02:36 - 25.609 Is that the only juror that was dismissed?

02:36 - 30.647 And I asked the question because how were family members

02:36 - 34.051 then able to fit into the courtroom that wasn't large enough

02:36 - 39.990 for the family members to participate in the entirety of the void year process?

02:36 - 43.360 That's not clear from the record that we have before us.

02:36 - 46.797 They were just told to come back in two hours,

02:36 - 49.767 but you had all but one of the veneer

02:36 - 54.104 was still present in the courtroom. Yes.

02:36 - 59.476 The these jurors were sworn

02:36 - 02.546 before the commencement of their questioning.

02:37 - 05.549 Correct? Correct.

02:37 - 09.153 Is that the beginning of the voir dire process when the jurors are sworn?

02:37 - 11.054 I would say, when they're brought into it,

02:37 - 13.557 when a veneer is brought into the courtroom and

02:37 - 16.560 but I don't know how that's any different than justice.

02:37 - 19.997 McCaffery suggestion that people are filling out forms

02:37 - 23.967 just to get basic information once it takes on the solemnity

02:37 - 28.105 of the proceeding, commencing by swearing the jurors.

02:37 - 32.309 Isn't that a critical question as to when voir dire begins?

02:37 - 36.480 And I think that's the issue I'm asking you.

02:37 - 38.916 I mean, suppose they weren't sworn.

02:37 - 43.120 Suppose it was more like, answering questions on a form,

02:37 - 45.789 but they already did that part.

02:37 - 48.225 I'm aware of that. That's why I'm asking you.

02:37 - 52.863 Does it make a difference in terms of determining the commencement of the voir

02:37 - 56.433 deer proceeding, that the jurors are sworn

02:37 - 59.436 before any of the questioning commences?

02:38 - 05.342 If there's trying to be established, mean when exactly what year begins,

02:38 - 07.444 that would be my colleague that would be asking.

02:38 - 09.179 That would be a different question.

02:38 - 13.150 But that's what that's what the purpose of the this this questioning is.

02:38 - 17.087 I mean, there's an argument here that this was merely administrative

02:38 - 20.090 and it wasn't actually voir dire.

02:38 - 22.593 And I'm assuming you're taking the position.

02:38 - 25.596 This is in fact this. Why is it for deer?

02:38 - 27.097 Yeah, I would disagree that it wasn't.

02:38 - 29.032 What er and why do you say it's for

02:38 - 30.334 on the

02:38 - 33.337 record, the judge says we're bringing in the panel.

02:38 - 35.038 We're going to give some instructions.

02:38 - 36.907 We're going to ask some general information.

02:38 - 38.475 They excluded one member.

02:38 - 40.043 That's the jury selection process.

02:38 - 42.613 It began.

02:38 - 45.582 So I guess I guess the, the, the,

02:38 - 50.587 the the the move we're trying to make, you make that you're resistant to make

02:38 - 54.091 is I don't I want you to forget about your client's case,

02:38 - 57.461 and I want you to talk more

02:38 - 00.964 abstractly about the principle of when voir dire begins.

02:39 - 04.167 Or I could just ask you whether you think it's voir dire

02:39 - 07.170 or voir dire, which would be a very interesting conversation.

02:39 - 11.708 But we're trying to get at at least the questioning is trying to get

02:39 - 14.745 at the sixth, sixth amendment

02:39 - 17.748 right attaches at voir dire,

02:39 - 21.652 which occurs when X happens not

02:39 - 23.387 x, meaning

02:39 - 26.390 this case X meaning in Pennsylvania.

02:39 - 31.428 When when does Y dear start for purposes of Sixth Amendment right attach?

02:39 - 33.564 I would say when the panel was brought into the courtroom

02:39 - 34.798 before they're sworn.

02:39 - 36.800 Yes. What if they're not brought into a courtroom

02:39 - 39.803 and they're brought into a conference room?

02:39 - 41.638 What is it

02:39 - 44.741 that the c c why we're sort of asking these questions.

02:39 - 45.208 What if they're.

02:39 - 48.345 What if the jury selection happens in an anteroom somewhere?

02:39 - 50.447 Not in not in the actual courtroom.

02:39 - 53.650 Well, if jury selection were to happen in some sort of ancillary room,

02:39 - 55.919 I would suggest that the public

02:39 - 58.922 or the family would have the right to be in that ancillary room.

02:39 - 01.191 Okay. So

02:40 - 04.494 so again, in the time frame that justice McCaffery was asking you

02:40 - 09.666 and sort of laying out practically how it happens, at what point you're.

02:40 - 13.837 So when the jury was brought into the first room and given the questionnaire,

02:40 - 15.138 not the courtroom, but the first room,

02:40 - 18.141 and given the questionnaire, you believe that's for our dear?

02:40 - 19.376 No, I would say no.

02:40 - 19.743 Okay.

02:40 - 23.313 So it's something about being born into a courtroom and being asked questions.

02:40 - 25.983 But in the courtroom where the trial is about to take place.

02:40 - 30.654 And in this and in this case, the transcript indicates that,

02:40 - 35.559 the veneer was sworn

02:40 - 40.631 prior to, judge O'Keeffe asking them to raise your hand

02:40 - 43.634 if you, know anybody or don't know anybody.

02:40 - 49.773 So, in the event that the voir dire

02:40 - 53.310 was deemed by the court to begin, when the veneer is

02:40 - 56.313 sworn,

02:40 - 59.449 it it the your concerns

02:40 - 03.720 about the inability of family members to assess

02:41 - 07.424 whether venire person is telling the truth

02:41 - 10.427 about knowing or not knowing,

02:41 - 12.696 anybody in the case,

02:41 - 16.166 could could be assessed, but that's inarticulate.

02:41 - 17.668 Let me rephrase it.

02:41 - 20.671 If if if the if the voir dire is deemed to begin

02:41 - 24.908 when the veneer is sworn, then you're concerned

02:41 - 28.145 about structural error remains, doesn't it?

02:41 - 31.214 Yes, I would agree. Okay.

02:41 - 34.317 So the swearing that you see that's a very straightforward rule.

02:41 - 36.653 That's why I ask the question.

02:41 - 39.189 A straightforward rule is and it just so happens to be helpful

02:41 - 40.691 in with you in this case. Yeah.

02:41 - 43.293 But it's a very straightforward rule that out

02:41 - 46.897 for the Sixth Amendment right attaches when the veneer is sworn in.

02:41 - 48.565 Period.

02:41 - 49.733 That's when border.

02:41 - 52.402 Okay. Yes. Absolutely. Yeah. We don't. Yes. Yes okay.

02:41 - 55.405 And at that and if I could just follow.

02:41 - 00.577 So at that point, at that point the questioning of the veneer

02:42 - 03.580 is eliciting responses

02:42 - 07.417 which you deem material to the public trial right.

02:42 - 12.322 Under the Sixth Amendment, including, for example, does any of the veneer person

02:42 - 15.859 do any of the veneer persons? No.

02:42 - 19.896 The defendant or the witnesses by show of hands, all of which occurred

02:42 - 22.532 after they were sworn in this case? Right? Correct.

02:42 - 26.470 And that that's the structural error that no wall or factors,

02:42 - 28.238 were applied.

02:42 - 31.074 So you have a wall or an Pressly structural violation.

02:42 - 33.677 Correct.

02:42 - 36.513 And even if were adopted de minimis standard,

02:42 - 39.483 you still have to abide by the wall or factors.

02:42 - 44.955 Well, and it does according to your logic here, it doesn't matter if the voir dire

02:42 - 48.658 takes place in a courtroom, a conference room, an annex.

02:42 - 50.594 It's a court proceeding.

02:42 - 53.797 It's an official proceeding that takes place once

02:42 - 57.200 the jurors are in that room, and particularly once they're sworn.

02:42 - 59.269 Doesn't matter. Yes, I would agree with that.

02:43 - 04.441 I find it kind of interesting that you're critical

02:43 - 08.445 of the trial judge for not announcing the wall or factors

02:43 - 13.583 when the objection raised on the record to this proceeding

02:43 - 18.088 doesn't cite the Sixth Amendment, doesn't cite the Waller case,

02:43 - 21.591 basically says, there's a case up there

02:43 - 24.594 that if you close the door,

02:43 - 27.497 then you're in trouble, so you shouldn't do it.

02:43 - 30.500 I think the objection was made.

02:43 - 31.735 The objection was made.

02:43 - 33.970 A petition was made to have the family remain present.

02:43 - 36.973 I think that preserves the issue of vision, like

02:43 - 40.644 by asking for the family to remain in the courtroom,

02:43 - 45.182 not actual filing a petition, but asking the court to allow them.

02:43 - 48.151 Yes, correct.

02:43 - 51.154 And this de minimis standard.

02:43 - 55.826 In, in, circuits and in the state courts that have adopted

02:43 - 58.829 this de minimis standard and tried to find an exception to Waller,

02:43 - 02.799 it's it's essentially it's trying to circumvent the Supreme Court precedent,

02:44 - 04.201 which is still good law.

02:44 - 09.439 What what, circuits or courts have not accepted the minimum standard.

02:44 - 12.375 I believe there's 13 states that have accepted it.

02:44 - 14.945 And what

02:44 - 18.682 courts or states have not accepted it.

02:44 - 21.384 I would have to get you a letter on that.

02:44 - 25.021 The Washington Supreme Court, has rejected it.

02:44 - 27.991 This is for the litigant.

02:44 - 30.994 And the litigant only.

02:44 - 34.431 And just so.

02:44 - 37.968 But that was a good objection.

02:44 - 40.670 It was from,

02:44 - 43.673 my Cousin Vinny.

02:44 - 49.913 Is up for our time or.

02:44 - 56.686 So just to make one final point,

02:44 - 01.591 even if Pennsylvania were to adopt a de minimis standard,

02:45 - 04.961 the courts around the country that have adopted that standard

02:45 - 08.632 have found that in order for it to be diminished de minimis,

02:45 - 12.102 the courtroom closure needs to be limited in scope and in duration.

02:45 - 15.572 This particular courtroom closure was not limited in scope.

02:45 - 17.040 It was a total closure.

02:45 - 17.941 The family was told

02:45 - 20.944 to get out of the courtroom, not even be in the hallway, go to lunch,

02:45 - 22.412 come back in two hours.

02:45 - 26.149 Well, that that was the judge being courteous.

02:45 - 27.150 I'm. I'm not. Go.

02:45 - 27.751 This is early.

02:45 - 30.754 All that against the judge, I get it, but,

02:45 - 33.089 it has has the Supreme Court.

02:45 - 34.891 The United States has not spoken on this de minimis

02:45 - 37.827 standard yet in terms of structural error. Correct.

02:45 - 41.765 If we were to adopt it, there's probably a fairly good shot that someone might see.

02:45 - 43.500 Scotus review on the Sixth Amendment.

02:45 - 46.503 The question I would think so.

02:45 - 51.007 Unless there's any further questions that Congress.

02:45 - 53.543 Thank you. Thank you very much.

02:45 - 56.546 Care for Miss Block?

02:46 - 03.453 Good afternoon.

02:46 - 06.756 And may it please the court, shadow blight, representing the Commonwealth

02:46 - 11.328 defendants right to a public trial was not violated here.

02:46 - 16.766 The closed portion of the proceeding in this case was administrative

02:46 - 19.903 and did not implicate the concerns that the close were.

02:46 - 23.740 Dear and Pressley implicated, but was a voir dire?

02:46 - 25.909 That's the question.

02:46 - 29.145 And so it's the Commonwealth's position that why there had not begun yet.

02:46 - 34.551 Because what year in capacities the individual examination of jurors

02:46 - 38.421 and what we know is that that did not happen here.

02:46 - 42.759 The judge could I just in sure.

02:46 - 46.463 Just from a practical standpoint, I tried a lot of cases, not

02:46 - 51.901 criminal civil cases, but a void dear to me was when it began,

02:46 - 54.938 when the general questions, the general instructions began.

02:46 - 58.208 It didn't matter if they were general or individuals.

02:46 - 00.844 The jurors were heard it in and they were sworn in.

02:47 - 02.979 And then border began.

02:47 - 05.148 How are you,

02:47 - 08.952 limiting the definition of void dear to individual void dear.

02:47 - 14.324 And if I could piggyback on that, is it the actual oath that is taken by the

02:47 - 18.461 jurors, potential jurors that initiates the concept of what they're.

02:47 - 22.432 I am actually not aware of whether or not it's

02:47 - 25.435 the oath that initiates the actual idea.

02:47 - 28.405 But what happens in this case is that the court just briefly greets

02:47 - 31.107 them, gives introductory remarks, and ask them questions

02:47 - 34.978 based on the responses that they had already privately checked off.

02:47 - 36.446 What's

02:47 - 39.883 important is that no jurors were challenged at this stage.

02:47 - 42.585 No jurors were, excluded.

02:47 - 44.687 Based on the determination of those questions.

02:47 - 46.823 The court just gave those general questions.

02:47 - 49.592 And so, in other words, what happened here?

02:47 - 53.797 The you're here covered nothing more than the administrative sorting necessary

02:47 - 57.100 to begin what year and what was so short

02:47 - 00.136 gathered gather after the issue.

02:48 - 02.405 Here is structural error.

02:48 - 06.409 What, dear equal or let's say prohibiting

02:48 - 09.512 voir dire equals structural error.

02:48 - 12.816 That's what our law says, that you can have structure error

02:48 - 16.686 if you've refused to permit family for the ideas portion.

02:48 - 20.090 The concern we now have is let's drill that down

02:48 - 23.827 and say what commences voir dire.

02:48 - 25.862 What's your position?

02:48 - 26.463 Our position

02:48 - 29.599 is that what year will commence at the individual examination of jurors.

02:48 - 31.801 So once the jurors are questioned individually

02:48 - 34.838 based on their individual responses, which is what happened here in the

02:48 - 36.339 family, let me fall short.

02:48 - 41.010 You're saying based on their responses,

02:48 - 44.280 what from a constitutional perspective,

02:48 - 49.352 if they are giving responses

02:48 - 52.322 and they're giving responses when they're sitting there,

02:48 - 55.792 in this initial period after being sworn

02:48 - 58.962 and they're being asked questions,

02:48 - 02.165 by judge O'Keefe here.

02:49 - 05.702 That are,

02:49 - 07.237 significant.

02:49 - 09.105 I mean, that that's why they're being asked

02:49 - 12.408 and being asked by show of hands and,

02:49 - 17.847 and in fact, some are going to be some are going to be excused on this basis.

02:49 - 21.451 And the, the,

02:49 - 26.422 exclusion, the closure of the courtroom

02:49 - 29.859 did not follow any,

02:49 - 33.363 any Waller factor process, any,

02:49 - 39.169 any of the things that Presley and Waller envisioned about balancing,

02:49 - 41.037 because it may well have been that

02:49 - 44.040 after such a balancing, the judge would have been,

02:49 - 47.544 well positioned to, in fact, close the courtroom.

02:49 - 49.112 But that didn't happen.

02:49 - 50.146 So what?

02:49 - 53.016 We we don't know. What we don't know. We don't know,

02:49 - 57.153 what persons on that venire,

02:49 - 02.158 might have been known to some family member

02:50 - 06.196 who could have then told defense counsel or the defendant, hey, you know

02:50 - 10.400 that person who said they didn't know or did know they they do.

02:50 - 11.501 And here's who they are.

02:50 - 16.406 I mean, just that's just one scenario that is served by a public trial, right?

02:50 - 19.742 So how would you how would you justify,

02:50 - 24.180 after Waller and Presley, the court's failure to engage

02:50 - 27.917 in any kind of balancing prior to closing the room?

02:50 - 32.422 Sure, Your Honor, so our position is that the court did not was not even required

02:50 - 34.624 at this instance to consider the while of factors

02:50 - 37.427 because the Sixth Amendment right hadn't been implicated.

02:50 - 39.562 The court must consider the Waller factors.

02:50 - 43.566 When the public trial right, the public trial guarantee attaches,

02:50 - 46.836 and our position is that it hasn't had an attached here and so the court

02:50 - 49.772 wasn't required to even consider the Waller factors.

02:50 - 53.376 And again, there are gaps in the record as to what exactly happened

02:50 - 55.411 or what types of questions the court asked the jury.

02:50 - 57.447 But this is defense counsel's claim.

02:50 - 59.682 And so it would have been his responsibility to make sure

02:50 - 02.452 we had a full and complete record, and he failed to do so.

02:51 - 05.121 Counsel, can I follow up on that?

02:51 - 09.826 Because, from the record, the judge made clear that,

02:51 - 13.429 the courtroom was being closed because there just wasn't enough room.

02:51 - 18.468 Unsurprisingly, it's the judge's obligation to consider alternatives.

02:51 - 21.771 Whether or not defense counsel suggests alternatives.

02:51 - 25.275 Isn't that implicated here?

02:51 - 28.645 Our position is that it would not be implicated because, again,

02:51 - 31.714 we believe that this was an administrative sorting proceeding that happened before

02:51 - 32.649 what year began.

02:51 - 33.883 Let me ask you this question.

02:51 - 38.421 When the individual questioning begins, are the jurors re sworn

02:51 - 43.493 or are they still bound by the oath that they took to tell the truth?

02:51 - 45.495 And whatever I'll say

02:51 - 50.233 attest to when they were sworn prior to the individual replied here.

02:51 - 52.168 Unfortunately, I'm not familiar with.

02:51 - 55.838 I don't see anything in the record that would suggest that they're sworn

02:51 - 59.042 to tell the truth to the questions

02:51 - 02.378 that they're being asked in this general process.

02:52 - 07.283 So I'm just I'm just trying to to decide

02:52 - 11.621 how the individual voir dire takes on any consequences they're being asked.

02:52 - 14.624 Follow up questions to answers

02:52 - 17.927 that they've given under oath, in secret.

02:52 - 20.596 So, I mean, it just

02:52 - 23.800 seems to me that the entire, concept

02:52 - 26.803 of the right to an open trial,

02:52 - 30.640 is immediately implicated once the oath is taken

02:52 - 33.843 and they start answering, answering questions.

02:52 - 36.412 And that's a fair point, Your Honor.

02:52 - 38.448 Again, I'm not aware of whether or not they're sworn in.

02:52 - 41.517 Again, it's not clear from this record because it wasn't transcribed.

02:52 - 44.520 But I would like to know, even if this court was to decide

02:52 - 48.691 that the Sixth Amendment right did attach at this point, the closure here

02:52 - 52.595 was too trivial and de minimis to amount to a Sixth Amendment violation.

02:52 - 55.598 I don't I don't, by the way, two things, counsel. Sure.

02:52 - 57.767 Pardon my interruption.

02:52 - 59.168 Just,

02:52 - 02.171 procedurally here I, I have the transcript.

02:53 - 04.374 So I'm not sure what you mean by gap in the record.

02:53 - 08.077 I'm looking at the, the transcript of these proceedings

02:53 - 11.347 from which family members were excluded and anybody else.

02:53 - 15.385 But, I don't,

02:53 - 18.788 I don't know, with respect to the latter point

02:53 - 22.492 you were making here, I don't know how we can,

02:53 - 27.830 cabin the defendant's

02:53 - 32.201 Sixth Amendment right by saying retrospectively that this was just

02:53 - 35.204 administrative and and unimportant,

02:53 - 38.674 because public trial means public trial.

02:53 - 42.245 It seems to me that that the that the

02:53 - 45.381 the issue is whether,

02:53 - 49.886 whether things began when the, when that veneer was sworn.

02:53 - 53.723 Because if, if it did

02:53 - 57.059 if the public trial right attaches when the veneer is sworn,

02:53 - 00.596 then I think you have a wall or press problem.

02:54 - 04.133 And, you know, there's no bad intentions here on the court's part.

02:54 - 07.069 I understand what he was doing, but I think he,

02:54 - 09.906 you know, I would I would ask you to react to this.

02:54 - 15.211 Didn't he just make a mistake by failing to undertake the balancing

02:54 - 19.382 that he apparently didn't know the Scotus precedent required him to do

02:54 - 22.819 what was in the mind of the judge at the time.

02:54 - 24.821 I'm not sure whether or not it was a mistake.

02:54 - 28.224 I think the judge had specifically said on the record

02:54 - 29.225 that we're just going to do

02:54 - 31.360 some preliminary questions, and then once we're done

02:54 - 33.396 that, we're going to let the family back in.

02:54 - 35.731 And voir dire would begin at that point.

02:54 - 38.434 Use the term jury selection would begin at that point.

02:54 - 41.437 So it's my understanding, just based on the record, that the judge

02:54 - 44.640 didn't consider the well of factors, because the judge too, didn't believe

02:54 - 47.109 that the Sixth Amendment was implicated at this point.

02:54 - 49.679 That was that was the basis of my original question,

02:54 - 50.513 which I'm sorry, I couldn't hear.

02:54 - 52.815 That was the basis for my original question about waiver.

02:54 - 55.218 Wyler wasn't brought up.

02:54 - 57.720 The Sixth Amendment wasn't brought up right to a public trial,

02:54 - 58.788 wasn't brought up.

02:54 - 02.825 This was defense counsel sitting around with the prosecutor to judge O'Keeffe.

02:55 - 06.128 And one of them happened to say before the panel we brought in the room,

02:55 - 09.532 there was some recent case out there that said, it's a bad idea

02:55 - 11.667 to close the courtroom.

02:55 - 14.003 And in response, the judge said, do you have a copy of the case?

02:55 - 15.037 And I know that.

02:55 - 16.172 I know that because I was laughing,

02:55 - 18.541 because I know the defense counsel, I know the prosecutors

02:55 - 20.910 defense counsel said, now, judge, you're really testing me.

02:55 - 21.844 He said, no, I don't.

02:55 - 24.714 But for the record, I put my objection on the record.

02:55 - 25.381 That was it.

02:55 - 26.816 There was no Sixth Amendment right.

02:55 - 28.751 My client's got a public or private right.

02:55 - 33.122 So there was did the judge make a mistake in accordance with Waller?

02:55 - 34.156 Absolutely.

02:55 - 37.760 He closed the courtroom without understanding what the violation was

02:55 - 41.998 and what the claim right was, which is why I keep asking about who's right.

02:55 - 43.299 Is it is it the defendant's right?

02:55 - 45.434 Is there a prejudice that the new from that?

02:55 - 47.904 And can it be waived if it's structural error.

02:55 - 48.237 Correct.

02:55 - 49.805 It cannot be waived if a structural

02:55 - 53.142 so therefore I just as well said you've got a wall or problem

02:55 - 57.280 because nobody had any idea that this was a wall or Sixth Amendment right.

02:55 - 59.448 The issue then becomes

02:55 - 01.651 whether or not we're going to adopt the the minimum standard or not,

02:56 - 04.620 because if we follow what the United States Supreme Court says,

02:56 - 07.356 you've got a clear violation by closing the courtroom.

02:56 - 10.593 And the judge just didn't understand that the only question is whether or not

02:56 - 15.331 the remedy is going to fit the violation under the minimus doctrine.

02:56 - 19.201 Yes, Your Honor, and it's the Commonwealth's position that it would not.

02:56 - 20.636 Pennsylvania courts

02:56 - 24.173 have never specifically addressed the issue of whether or not an improper

02:56 - 27.977 closure can be too trivial or de minimis to amount to a Sixth Amendment violation.

02:56 - 30.646 But our federal courts have and they've held that

02:56 - 34.550 not every improper partial closure implicates the Sixth Amendment as

02:56 - 39.255 let me ask you this, what

02:56 - 41.090 what is it?

02:56 - 44.860 Isn't it possible that the reason Scotus is never Scotus is

02:56 - 48.230 that has never gone down this second

02:56 - 51.233 circuit de minimis route?

02:56 - 54.470 Is that when we

02:56 - 57.540 when we try to carve out exceptions,

02:56 - 00.543 to avoid the consequences

02:57 - 04.013 of structural error, we end up eviscerating

02:57 - 08.317 important constitutional rights like the right to a public trial.

02:57 - 09.785 Why don't we just

02:57 - 11.854 why don't we just confront the reality that,

02:57 - 15.791 you know, through nobody's bad intentions, we happen to have structural error here

02:57 - 17.493 and keep the law clean.

02:57 - 19.862 That way.

02:57 - 22.698 Well, Your Honor, the right to a public trial wasn't infringe here.

02:57 - 27.536 Because if the court looks to the the the the factors that the Waller court

02:57 - 30.806 have pointed out are furthered by the public trial guarantee.

02:57 - 32.208 And that's ensuring a fair

02:57 - 37.046 trial, reminding prosecutors and judges of their responsibility to the accused,

02:57 - 40.449 encouraging witnesses to come forward and discouraging perjury

02:57 - 43.719 and the jury selection context is encouraging witnesses

02:57 - 46.722 and encouraging potential jurors to respond truthfully.

02:57 - 51.761 Those values weren't infringed upon in this particular case, right?

02:57 - 55.064 The first two are not even implicated because no witnesses testified.

02:57 - 58.901 And this occurred before the jury members were even questioned individually.

02:57 - 02.938 But they answered and they were sponsored individually.

02:58 - 03.172 Right.

02:58 - 06.175 You're asked, does anybody here know the defendant's family?

02:58 - 09.245 And, you know, they're expected to raise their hand?

02:58 - 12.748 And this is where I, where I mentioned that there's a gap in the record

02:58 - 15.184 as to what actually occurred at the jury selection process.

02:58 - 16.452 But the jurors were

02:58 - 20.356 broken up into two groups based on the questions that they gave.

02:58 - 23.359 They raised number cards, and then they're broken up into two groups.

02:58 - 26.562 The groups that answered the cards remained in the courtroom,

02:58 - 28.964 and then the second group was excused from the courtroom,

02:58 - 31.967 and then the family members were brought back in and the court,

02:58 - 33.235 it's not transcribed.

02:58 - 35.204 But then at this point, this is where the court asked them

02:58 - 37.206 individual questions based on their responses.

02:58 - 40.643 So defendant's family is present when the jury are asked

02:58 - 42.912 individual questions based on the responses

02:58 - 45.281 they gave on the questionnaire and the responses

02:58 - 46.649 they gave to the jury's question.

02:58 - 49.652 So that again, that goes to the

02:58 - 53.222 I think the attorney general's position and goes back to this debate we had over.

02:58 - 55.658 When does voir dire start?

02:58 - 59.295 And you're saying voir dire does not start when the general questions are asked,

02:58 - 02.865 but when the specific questions are asked, when the specific questions are asked

02:59 - 05.868 and you have what what can you cite to us

02:59 - 09.371 a jurisdiction that has has said that

02:59 - 13.275 that is the triggering point for when voir dire arises.

02:59 - 15.811 I cannot cite to any

02:59 - 19.048 case that says exactly what point,

02:59 - 22.384 what year actually starts.

02:59 - 26.021 It's just our position in this case is that the attorney general, I propose

02:59 - 29.492 that the de minimis standard is a little bit unappealing to me,

02:59 - 32.461 but I'm not completely ruling it out, but a little appeal to me for the reasons

02:59 - 35.431 that Justice Wecht pointed out.

02:59 - 39.935 But the attorney general's brief, I thought, was interesting

02:59 - 42.938 in the sense that,

02:59 - 44.607 that they didn't argue for de minimis.

02:59 - 45.074 By the way,

02:59 - 48.477 the OAG did not ask for a de minimis standard, but they sort of tried to create

02:59 - 52.481 the difference between substantive voir dire and sort of administered

02:59 - 53.582 straight in voir dire.

02:59 - 56.485 Is that is that what you're

02:59 - 57.753 kind of advocating for?

02:59 - 58.954 Is this idea that there's sort of

02:59 - 01.957 this administrative part that we really don't worry about, like,

03:00 - 06.061 and, but the substantive part and if that is what you're arguing,

03:00 - 08.731 how do you get past the fact that they were sworn?

03:00 - 12.868 So yes, that is

03:00 - 15.871 what I'm arguing, that this was the administrative portion of it.

03:00 - 19.675 I don't think that the fact that they were sworn,

03:00 - 24.046 changes things because, again,

03:00 - 27.116 they're not questioned individually until the family comes in.

03:00 - 31.654 And so when we when we're looking at the factors that Waller has said

03:00 - 34.690 was promoted by the Sixth

03:00 - 37.860 Amendment guarantee, none of those are implicated

03:00 - 41.564 at this point with what occurs here during the during the closure.

03:00 - 46.302 If I just might follow up on that, something significant happened

03:00 - 50.072 based upon their answers during the generalized

03:00 - 53.943 voir dire after being sworn in, they were segregated into groups

03:00 - 00.616 and depending on the answers that they gave during that session

03:01 - 04.086 to which they publicly start, invited, it had a consequence.

03:01 - 09.825 They were put into certain groups, asked different kinds of questions,

03:01 - 12.962 and the public had no way to know

03:01 - 16.398 why that particular protocol was being followed,

03:01 - 21.036 and all of which, once again, was driven by answers

03:01 - 24.039 that the veneer men gave while they were under oath.

03:01 - 27.810 And that's why I'm struggling with this notion

03:01 - 33.549 that nothing substantive happens during that general.

03:01 - 37.286 Questioning of the veneer.

03:01 - 39.688 Yes. They are segregated into separate groups, Your Honor.

03:01 - 42.491 The segregated based on their answers and is, once they're segregated,

03:01 - 45.494 that the jurors are questioned individually

03:01 - 47.329 about their responses.

03:01 - 50.799 So that's when the judge gets into whether or not they know any parties,

03:01 - 53.402 whether or not they have any ethical or religious beliefs

03:01 - 55.537 that will prevent them from presiding over the case.

03:01 - 57.473 Okay. I think we understand the case.

03:01 - 58.974 Any other questions?

03:01 - 00.075 Thank you both very much.

03:02 - 00.976 Thank you so much.

03:02 - 01.410 Thank you.

03:02 - 04.413 Counsel.

03:02 - 10.152 The argument is concluded in case you wondered when things began

03:02 - 13.155 and this they've done.

03:02 - 16.425 Pretty okay.

03:02 - 19.428 The next case we're going to hear is full moon versus City of Philadelphia.

03:02 - 23.933 And this is a case involving a Philadelphia school district teacher,

03:02 - 25.501 who was fired.

03:02 - 28.537 And the question essentially is who must be present

03:02 - 31.740 when a tenured teacher is fired?

03:02 - 36.145 The case started during the Covid 19 pandemic.

03:02 - 41.216 Neil Foreman was a tenured teacher at Constitution High School in Philadelphia.

03:02 - 44.987 During the 2021 school year, schools were closed

03:02 - 47.990 for in-person learning because of Covid 19.

03:02 - 53.462 When the district prepared to reopen, it required weekly Covid test for all staff

03:02 - 57.933 unless they had a medical exemption form and refused to take the weekly test.

03:02 - 02.671 He submitted a form asking to be exempt, but the district said he didn't qualify.

03:03 - 07.242 He was placed on unauthorized leave and eventually recommended for termination.

03:03 - 10.846 The school board scheduled a termination hearing,

03:03 - 13.782 but instead of the school board members attending,

03:03 - 16.785 they assigned a hearing officer to run it.

03:03 - 20.823 The hearing was held virtually no school board members were present.

03:03 - 23.525 Bowman objected and said the

03:03 - 27.429 school code requires that the board itself to conduct the hearing.

03:03 - 30.733 His objecting objections were passed along to the board,

03:03 - 33.736 but the board voted to fire him anyway.

03:03 - 37.172 Foreman appealed, but the Secretary of Education said

03:03 - 40.342 that the district followed the rules and it upheld the file.

03:03 - 41.977 It firing.

03:03 - 46.281 The case went to the Commonwealth Court and this is where things changed.

03:03 - 49.651 The Commonwealth Court said that the Pennsylvania School Code

03:03 - 52.654 has strict rules for firing tenured teachers.

03:03 - 55.991 Those rules say that the teacher must have a chance to be heard

03:03 - 59.128 before the board of school directors,

03:03 - 02.631 and that the board shall conduct the hearing.

03:04 - 05.601 Because not a single board member attended Pullman's hearing,

03:04 - 09.705 the court ruled the entire termination process is invalid.

03:04 - 14.076 It sent the case back to the trial court and reinstated Pullman.

03:04 - 17.279 This is an important issue

03:04 - 21.350 because for many years school districts used hearing officers to run meetings.

03:04 - 25.854 The board would later read the, transcript and vote.

03:04 - 31.193 The school district says the case is about whether school boards in Pennsylvania

03:04 - 34.997 must personally run every termination hearing for tenured teachers,

03:04 - 39.034 or whether they can continue to use hearing officers who are trained

03:04 - 42.271 professionals who can conduct the hearing and create

03:04 - 45.240 a full record for the board to review.

03:04 - 50.079 They say that the public school code was written to protect employees.

03:04 - 54.083 This is the employees argument that the school code was written

03:04 - 57.453 to protect employees by guaranteeing notice at a public

03:04 - 03.192 hearing, with sworn testimony and a final decision by the school board.

03:05 - 05.327 After reviewing the evidence.

03:05 - 08.297 But the school board says nothing in the law requires board

03:05 - 12.134 members themselves to sit through every minute of testimony,

03:05 - 16.672 and that for years school boards, especially large ones like Philadelphia,

03:05 - 21.543 have relied on hearing officers to manage these complex proceedings.

03:05 - 22.411 The school

03:05 - 27.483 district says that the legislature never intended to take that tool away.

03:05 - 31.019 The school district says that the Commonwealth Court's reading

03:05 - 34.723 would make it impossible for many districts to function.

03:05 - 39.461 School board members are unpaid volunteers, and requiring them to preside

03:05 - 43.832 over every termination hearing would overwhelm them and stall the system.

03:05 - 47.269 They say the better reading of the law, and the one that's consistent

03:05 - 50.339 with longstanding practice, is that the board may appoint

03:05 - 54.076 hearing officers as long as the board itself reviews the record,

03:05 - 58.080 and it urges the court to reverse the Commonwealth Court's

03:05 - 01.984 decision and restore what they call that lawful approach.

03:06 - 05.787 So the Supreme Court has agreed to hear the question

03:06 - 10.092 of whether the Commonwealth Court made a mistake by ruling

03:06 - 13.328 that some number of school board members

03:06 - 16.431 must attend a termination hearing.

03:06 - 18.133 Thank you.

03:06 - 18.700 Let's go

03:06 - 23.038 listen to the arguments in full moon versus School District of Philadelphia.

03:06 - 28.310 Good afternoon.

03:06 - 30.379 In this appeal by allowance,

03:06 - 33.448 we must determine whether under sections

03:06 - 38.754 1127, 1128 and 1129 of the public school code,

03:06 - 41.757 the board of directors of a school district

03:06 - 45.894 may appoint a hearing officer to preside over a termination

03:06 - 50.832 hearing for a tenured professional employee without any of the board members

03:06 - 55.137 attending the hearing, and then vote to terminate the employee

03:06 - 59.007 based upon the record made by the hearing officer.

03:06 - 02.010 Please proceed.

03:07 - 03.445 Thank you, Your Honor.

03:07 - 04.746 It may please the court.

03:07 - 05.147 Bruce.

03:07 - 09.518 Mayor Einstein, on behalf of the School District of Philadelphia, with me today

03:07 - 12.721 are my co-counsel, Sam Silver and Paul Sankey.

03:07 - 15.924 The Commonwealth Court's decision

03:07 - 19.761 is inconsistent with longstanding practice in the Commonwealth,

03:07 - 22.164 both at the local and state government level

03:07 - 24.633 and inconsistent with this court's precedents.

03:07 - 29.104 It also ignores the context in which these provisions that were that

03:07 - 30.372 the court is here to interpret

03:07 - 33.575 today are found, which is the public school code context.

03:07 - 36.578 In this the context is the public school code,

03:07 - 39.314 just justice work in the public school code.

03:07 - 41.250 That context is important in a couple of ways.

03:07 - 42.818 First, as important as the text,

03:07 - 44.853 I think it

03:07 - 48.657 is, the text has to be interpreted in that context.

03:07 - 50.592 I don't think it's more important or less important.

03:07 - 54.830 I think that's part of the textual interpretation, is looking at the context

03:07 - 55.831 rather than just is not

03:07 - 59.101 the most important thing for us to look at when we're interpreting the text.

03:07 - 03.272 The text is the most important thing, but I don't think the text can be interpreted

03:08 - 04.439 outside of its context.

03:08 - 06.241 I don't think you can just take the words

03:08 - 09.177 outside the context of the provisions in which they're found.

03:08 - 12.481 In particularly the entire public school code in which they're found.

03:08 - 15.050 And I think that this court has said as much with,

03:08 - 18.086 with regard to this very part of the public school code.

03:08 - 22.924 The part involving, hearings and terminations of professional employees.

03:08 - 25.527 This court has said we have to keep in mind

03:08 - 29.064 the overriding purpose of the public school code

03:08 - 32.467 is part of the constitutional requirement of providing a thorough

03:08 - 33.268 and efficient system.

03:08 - 35.404 I you just follow up briefly,

03:08 - 40.575 the the, text that I'm focusing on here is section 1127,

03:08 - 45.280 which says the board of directors conduct a hearing, taking out what's in between

03:08 - 47.382 the board of directors shall conduct a hearing.

03:08 - 51.553 So what part of board of directors does not mean board of directors?

03:08 - 55.457 Well, I think the real question is the conduct.

03:08 - 56.124 There's no question.

03:08 - 57.559 It's referring to the board of directors,

03:08 - 01.263 but the board of directors will conduct a hearing does not mean.

03:09 - 05.033 And and there is precedent for this, Your Honor, but does not mean

03:09 - 05.934 that the board of directors

03:09 - 10.472 shall personally preside over a hearing and attend the hearing.

03:09 - 14.242 And I think if you look at statutes after statutes in the Commonwealth,

03:09 - 15.177 there are statutes

03:09 - 18.980 that provide the state Civil Service Commission shall conduct a public hearing.

03:09 - 20.882 There are statutes that provide that.

03:09 - 23.552 The Real Estate Commission shall, quote, hold a hearing.

03:09 - 27.422 The Secretary of Labor and Industry shall conduct an investigation.

03:09 - 31.560 And on and on, in in none of those cases, none of them are.

03:09 - 34.563 The secretaries are the commissions are the boards

03:09 - 38.200 personally conducting section 1128.

03:09 - 40.769 The immediately following section

03:09 - 43.705 says that all testimony at the hearing shall be taken under oath.

03:09 - 45.807 And any member of the board,

03:09 - 50.011 any member of the Board of Directors, shall have the power to administer oath.

03:09 - 54.282 And then the next section is the General Assembly made section 1129

03:09 - 58.420 says after fully hearing the charges, the Board of School

03:09 - 02.657 directors shall by two thirds vote to be recorded by roll call.

03:10 - 05.660 So it seems like we have three sections here

03:10 - 08.997 where the General Assembly instructed the board will do this.

03:10 - 13.301 And what I don't understand is how you can invoke some context

03:10 - 17.672 to get your elected school board out of its statutory obligation

03:10 - 20.942 to do what the General Assembly said it has to do.

03:10 - 25.147 To be clear, we're not getting the school board out of the obligations.

03:10 - 27.182 It is doing what the General Assembly said.

03:10 - 30.919 And if I can take those one at a time, section 1128 says

03:10 - 35.524 it simply confers power on board members to administer oaths.

03:10 - 37.793 It does not say they must administer the oath.

03:10 - 40.262 Other individuals notary publics.

03:10 - 43.064 The court reporters are authorized to administer the oath.

03:10 - 45.934 And so section 1128 really doesn't do

03:10 - 49.171 any work here, because it's simply conferring a power on the board.

03:10 - 53.341 Section 1129 says that the board will vote after hearing the charges.

03:10 - 54.643 As Your Honor pointed out,

03:10 - 59.147 this court in Foley Brothers and has not received it from the ruling.

03:10 - 03.151 And Foley brothers specifically said that the requirement of hearing

03:11 - 06.721 the evidence does not mean, quote, physical oral reception.

03:11 - 07.456 It is said.

03:11 - 11.760 Rather, it simply means that the board must, quote, consider all of the evidence.

03:11 - 16.565 So this court has interpreted the very phrase in section 1129

03:11 - 20.202 where it says the board, after hearing the charges, after hearing

03:11 - 24.372 the evidence, must vote to mean that it must consider the evidence.

03:11 - 28.343 And so whether it's in Foley Brothers was addressing the very term

03:11 - 31.880 that's an 1129 hearing, or whether it's in all of the

03:11 - 34.583 the other statutes that use the same phrase,

03:11 - 37.552 the Commission shall conduct a hearing, the board shall conduct a hearing.

03:11 - 41.556 The Secretary of Labor and Industry, of community and Economic Development

03:11 - 42.757 of agriculture.

03:11 - 45.160 All of those statutes refer to the Secretary.

03:11 - 46.394 Well, you have to be a

03:11 - 50.098 you have to be a little bit careful about drawing too many parallels between

03:11 - 54.102 the federal between the state statutes, state agencies and local agencies

03:11 - 57.472 in the sense that there are some statutes that give powers to the secretaries,

03:11 - 00.942 the actual people, the agency heads,

03:12 - 04.379 and then where they usually do the regulations,

03:12 - 08.283 administrative agency law, general rules, administrative practice and procedure

03:12 - 11.720 expressly give that agency head delegation

03:12 - 14.723 authority to conduct a hearing,

03:12 - 19.628 you need to differentiate between statutes that give powers to agency

03:12 - 23.932 heads versus statutes that give powers to agencies.

03:12 - 25.901 And that's where I think

03:12 - 28.904 you're getting a little bit wrapped up, because

03:12 - 31.806 this statute requires

03:12 - 35.677 the board of school directors to conduct a hearing.

03:12 - 39.047 It doesn't require members of the board

03:12 - 42.050 of school directors to conduct the hearing.

03:12 - 45.420 And under local agency law, the board of school

03:12 - 49.324 directors is an entity, not a bunch of individuals.

03:12 - 51.393 Correct?

03:12 - 53.261 I guess I do respectfully disagree.

03:12 - 54.930 You might not want to.

03:12 - 55.830 He's trying to help.

03:12 - 57.566 You might want to agree with me.

03:12 - 01.603 Well, but I think I do agree, Your Honor, with your description

03:13 - 02.671 of the board of school directors.

03:13 - 07.842 But the statutes that I'm referring to similarly refer to a board,

03:13 - 11.713 a commission, some do, but some refer to agency heads to individuals.

03:13 - 14.950 Your statute here does not say

03:13 - 17.953 a hearing shall be held by members

03:13 - 21.690 of the board of school directors, meaning individuals.

03:13 - 24.859 It says a hearing shall be held by the Board of school

03:13 - 28.630 directors, which under the administrative agency law, is a body politic,

03:13 - 32.200 a political subdivision, a local agency, if you will.

03:13 - 34.069 All right.

03:13 - 35.370 I think it's some of those things.

03:13 - 38.006 I mean, I want to distinguish between the board of school directors

03:13 - 40.075 and the school district, which is a government.

03:13 - 42.210 Sure, absolutely. And you should. Correct.

03:13 - 45.880 But I, I think that that the state statutes don't

03:13 - 48.984 the statutes that involve state agencies that I'm referring to.

03:13 - 50.852 And I understand Your Honor's point in that

03:13 - 53.355 there are different ones and they may refer to individuals.

03:13 - 54.556 They may refer to boards.

03:13 - 58.293 The ones that I'm referring to are just like the public school code

03:13 - 02.063 provisions we're talking about today that says, as Justice White

03:14 - 05.533 just pointed out, that, say, the board shall conduct a hearing,

03:14 - 08.003 the board, after hearing the evidence will vote.

03:14 - 09.671 They have the same language.

03:14 - 13.908 And in those the the boards are not the ones doing it.

03:14 - 15.143 It is a hearing officer.

03:14 - 18.079 In all of those cases, they are relying on hearing on.

03:14 - 21.483 And all of those cases and all of those cases, though.

03:14 - 25.487 And again, I'm going to just I'm going to exclude the ones that vast adjudicatory

03:14 - 29.090 authority and an agency had, like the insurance department for example.

03:14 - 31.860 All of those cases where it's

03:14 - 36.665 vested in an agency, there usually is a separate express

03:14 - 40.669 statutory or administrative law or a regulatory provision

03:14 - 45.674 that all expressly or expressly authorizes the appointment of a hearing officer.

03:14 - 50.011 Your answer to that is going to be, this code has a general

03:14 - 54.115 delegation authority to hire and appoint officials.

03:14 - 55.550 That's one of my responses, Your Honor.

03:14 - 59.287 But but I want to distinguish your honor said that in in those cases, the ones

03:14 - 03.725 involving state agencies, there's either statutory or regulatory authority.

03:15 - 05.593 And I would distinguish between those two

03:15 - 08.430 because I'm leaving aside the ones that have statutory authority,

03:15 - 11.332 there are many of them that don't have statutory authority

03:15 - 13.168 for delegation to a hearing officer,

03:15 - 16.171 that they may have regulatory authority, but has the court knows

03:15 - 21.009 the regulations certainly cannot modify or cannot contradict the statute.

03:15 - 24.012 And so the point is, is that the statutes themselves,

03:15 - 27.615 in the cases that I'm talking about, which is a subset of all of the ones,

03:15 - 28.717 Your Honor, is correct.

03:15 - 31.720 In those cases, just like here with the public school code,

03:15 - 34.723 there is no statutory authority for delegation.

03:15 - 36.691 But the delegation happens every day.

03:15 - 39.427 They're delegating to hearing us because there's regulatory authority.

03:15 - 39.627 Right.

03:15 - 42.597 But their regulatory authority has to be consistent with the statute.

03:15 - 44.966 Well, there's regulatory authority here as well.

03:15 - 46.034 You're jump well okay.

03:15 - 49.904 But regulatory if there's a regulation until it's challenged it's valid.

03:15 - 50.705 You're not going to be challenged.

03:15 - 52.340 You're not here to challenge those regulations.

03:15 - 55.243 So but so as inconsistent with the statute.

03:15 - 57.579 But but the fact is there is regulations. Yeah.

03:15 - 02.050 You do you have a regulation that authorizes the board of school directors

03:16 - 05.854 to delegate the responsibility to conducting create the record

03:16 - 07.255 to a hearing officer.

03:16 - 11.092 There's there is a board resolution, which would be the equivalent

03:16 - 13.094 of a regulation that governs, obviously,

03:16 - 16.097 just the board of education of the School District of Philadelphia

03:16 - 20.068 that was enacted, that provides for procedures for these hearings,

03:16 - 23.671 and that includes hearing officers that in fairness, I,

03:16 - 28.443 I mean, I don't think anybody would would be surprised that the board

03:16 - 33.448 would pass a record in service of whatever policy it's pursuing.

03:16 - 34.315 That's that's fine.

03:16 - 37.886 But that that begs the question of whether it's violating the statute.

03:16 - 40.989 So you're invoking, as I understand it, two things,

03:16 - 45.460 the code provision that will have all, all necessary power

03:16 - 49.497 to carry out the provisions of the act, which doesn't get them very far.

03:16 - 52.500 If the provisions of the act require them to hear the case.

03:16 - 55.103 And the second one is that that you invoke

03:16 - 58.339 is that the board can appoint a solicitor or an assistant solicitors,

03:16 - 00.341 but that doesn't get you very far,

03:17 - 04.078 because it doesn't say they can appoint hearing officers to conduct the hearings.

03:17 - 06.981 That 1127 says they have to conduct.

03:17 - 09.217 Well, I don't see how you're how you're,

03:17 - 11.419 you know, getting very far with either of those.

03:17 - 14.722 Well, again, I think, I think it says more than you could appoint solicitors.

03:17 - 18.393 It says it can appoint make other such appointments as it deems fit

03:17 - 21.396 and can define the duties of those officers.

03:17 - 26.701 And so, yes, I do believe that that provides the authority to appoint to delegate,

03:17 - 28.803 the, the

03:17 - 32.073 responsibilities and duties such as conducting the hearing,

03:17 - 35.844 such as hearing the evidence that the again,

03:17 - 39.681 if you look at other provisions in the public school code,

03:17 - 42.684 they have similar language in the same code itself.

03:17 - 46.054 It requires the board of directors know, but not as delegate

03:17 - 49.057 of the board of directors to purchase all furniture,

03:17 - 52.660 to furnish, classrooms, to transport students.

03:17 - 56.965 But nobody would suggest that they have to go out and purchase by themselves,

03:17 - 00.201 go to Ikea on the weekend and buy the furniture, then themselves

03:18 - 03.204 put it in because it doesn't say they have to do that personally,

03:18 - 08.543 and they have the authority to appoint folks, ministry or staff to do that.

03:18 - 09.978 This is no different.

03:18 - 12.881 It says that they must conduct a hearing, just as all

03:18 - 15.850 the other statute does, that it says it must conduct a hearing.

03:18 - 16.384 Right.

03:18 - 19.020 But it also says it must furnish the classrooms

03:18 - 21.623 and it must transport the students. It says the same thing.

03:18 - 23.558 It doesn't say the board or its delegates.

03:18 - 24.959 It doesn't say the school district.

03:18 - 26.027 It doesn't say the administration.

03:18 - 28.129 It says the board of school directors.

03:18 - 31.132 What were the lawmakers telling us when they said

03:18 - 35.503 in 1129, after fully hearing the charges, etc., etc.,

03:18 - 41.643 the board shall by a blank light recorded by roll call, so did the.

03:18 - 45.680 Are you saying that the lawmaker, the legislature's legislators

03:18 - 49.751 were telling Pennsylvanians, the board can go out

03:18 - 54.489 and delegate of its own volition to some hearing officer to do a zoom,

03:18 - 58.059 and then this hearing officer can report the results of the zoom,

03:18 - 02.430 and then the board can at its at its meeting,

03:19 - 06.634 just have a roll call, vote to rubberstamp whatever the hearing officer tells them.

03:19 - 08.303 Is that what you're saying? The law.

03:19 - 09.237 The law provides?

03:19 - 12.941 No, because the what the law provides with this court said in Foley Brothers,

03:19 - 15.777 is that what is required when it says that they have to hear

03:19 - 18.046 the evidence is they must consider the record.

03:19 - 19.447 And that's what happens here.

03:19 - 21.349 A record is it's not as if it happened.

03:19 - 24.352 The hearing happens, and then they ignore that and then they go off and vote.

03:19 - 26.120 A transcript is created.

03:19 - 28.222 All of the exhibits are collected.

03:19 - 30.391 There's a report from the hearing officer.

03:19 - 33.361 All of that information is provided to the board in this case

03:19 - 34.796 more than two months later.

03:19 - 37.732 So there's plenty of time for the board to consider that the board

03:19 - 40.868 then considered it and voted in this court again in Foley

03:19 - 44.138 brothers said that is sufficient for hearing the evidence.

03:19 - 47.041 Does this portfolio, the General Rules of Administrative Practice and Procedure,

03:19 - 49.143 does the board follow?

03:19 - 50.912 I honestly don't know the answer to that.

03:19 - 52.914 You know, you know, crap is yes.

03:19 - 53.247 Okay.

03:19 - 56.551 But you know, if I assume they do I mean, I'm not solicitor to the board.

03:19 - 57.885 I don't I don't do so.

03:19 - 59.821 So if they follow crap.

03:19 - 02.890 Shouldn't there have been an objection period to the to the hearing officer's

03:20 - 06.294 report and recommendation so that they that the board of school directors

03:20 - 09.297 can consider the report and recommendation and the objections to it.

03:20 - 13.968 I, I think so, but I do know factually, in this case,

03:20 - 17.372 there was more than a two month period when the board board considered it.

03:20 - 19.340 There was nothing preventing it.

03:20 - 21.609 If we're object, was there a period to file objections?

03:20 - 22.176 It was a report

03:20 - 26.114 and recommendation provided to counsel for the professional employee

03:20 - 27.815 and the counsel given an opportunity

03:20 - 30.818 to file objections to a report and recommendation with the board.

03:20 - 31.919 I know the answer.

03:20 - 36.324 The first part of that is absolutely that I think it was June of 2022.

03:20 - 40.795 All of the information was provided both to the board and to the Council for Mr.

03:20 - 42.563 Foley to the report and recommendation, report

03:20 - 46.601 and recommendation, the transcript, the exhibits, the transcript was provided

03:20 - 50.705 and then two opportunities for post hearing briefing was providing provided

03:20 - 54.709 all that briefing, post hearing briefing was provided to the board.

03:20 - 57.879 So all I'm asking about post report and recommendation.

03:20 - 58.379 Right.

03:20 - 01.749 And I don't know, that information was all provided.

03:21 - 03.217 I don't know the answer to the second part,

03:21 - 05.620 whether the report and recommendation was provided.

03:21 - 09.791 The prior to the board board's consideration, before the board's

03:21 - 13.861 consideration, and an opportunity to, brief the issues.

03:21 - 15.930 And there was certainly nothing I.

03:21 - 18.833 What I can't say you're you're you're going backwards.

03:21 - 20.134 I'm trying to go forward. Right.

03:21 - 23.571 You say an opportunity to brief the issues before the report and recommendation

03:21 - 28.276 or after the report and report and after that, again, I can't answer whether or not

03:21 - 32.447 there was some formal, for example, notice of an opportunity to object.

03:21 - 34.782 There's nothing that was preventing you understand,

03:21 - 37.051 usually in the general rules of administrative practice,

03:21 - 40.321 a procedure where there is a delegation to a hearing officer, there is that

03:21 - 44.926 in the rest of the spot where the report is provided.

03:21 - 47.428 And there's an opportunity to file objections.

03:21 - 52.467 Yes, but I don't I don't believe that that formal process would be followed here.

03:21 - 53.401 I think here

03:21 - 55.803 this is because it's not going to be an adjudication

03:21 - 57.438 under the Administrative Agency Act.

03:21 - 59.474 It's covered by the different rules.

03:21 - 02.110 But I why is it not an adjudication of the administrative.

03:22 - 04.011 Well, because I think there's a different procedure.

03:22 - 08.216 So for example, it can't be appealed to the Court of Common Pleas and Appeal

03:22 - 09.484 after the board's decision

03:22 - 12.487 goes to the Secretary of Education and then to the Commonwealth Court.

03:22 - 16.858 So it's a specific it may not be a final adjudication, but it's right.

03:22 - 18.392 It's a it's a yeah.

03:22 - 20.828 It's not a final adjudication. Right counsel.

03:22 - 24.098 But I, I don't think there was anything preventing counsel.

03:22 - 26.834 Can I, can I follow up on what point. Sure.

03:22 - 29.704 When was the first time that an objection to this procedure was raised by Mr.

03:22 - 30.505 Foreman?

03:22 - 33.674 Because if I'm taking a look in this particular case, there was

03:22 - 37.478 the principal made a recommendation, the board appoints a hearing officer.

03:22 - 38.913 There was no objection made.

03:22 - 40.982 There was some back and forth on this particular issue.

03:22 - 42.617 A hearing was conducted.

03:22 - 45.486 Then everything that Justice Robson talking about occurred.

03:22 - 48.990 When I looked at the record, the first mention of an objection

03:22 - 52.126 to the to the appointment of the hearing officer was made.

03:22 - 53.861 Any appeal to the Secretary.

03:22 - 54.462 So did Mr.

03:22 - 56.564 Foreman ever object before that particular point?

03:22 - 58.065 And if not, why wasn't it waived?

03:22 - 01.102 He did not object before that point, and I would actually say

03:23 - 03.938 that the record reflects he didn't object at that point either.

03:23 - 05.173 I think the record,

03:23 - 10.278 if he was a participant in this particular hearing with the hearing officer, he did

03:23 - 14.282 he had other objections, for example, to to a zoom hearing as opposed to in person.

03:23 - 18.219 He did not make any objection to the fact that it was before a hearing officer.

03:23 - 22.590 And instead of the board, he didn't make that objection at the board level.

03:23 - 24.725 He didn't make that objection at the secretary level.

03:23 - 28.196 The citations in the Commonwealth Court's opinion where it said this was raised

03:23 - 29.530 and they did not cite

03:23 - 32.533 anything in the board level proceedings, which are all in the record.

03:23 - 35.970 They cited to three pages of the transcript of the hearing

03:23 - 39.207 before the Secretary, which, incidentally, was before a hearing officer.

03:23 - 41.375 It wasn't before the Secretary of Education.

03:23 - 43.778 But those pages say nothing about this issue.

03:23 - 45.379 You're absolutely right, Your Honor.

03:23 - 48.916 And in fact, it wasn't raised anywhere until my understanding

03:23 - 51.919 is that the oral argument in the Commonwealth Court

03:23 - 55.089 and at that point, the judges on the panel and the Commonwealth Court

03:23 - 56.657 raised this issue.

03:23 - 59.160 And then later, of course, relied on that entirely.

03:23 - 00.761 And that's the only issue they addressed.

03:24 - 02.263 But that's the first time

03:24 - 06.300 that it was raised, which is one reason why the cases that we believe control

03:24 - 10.805 the outcome here, cases like Foley Brothers and Velasco and bullying cases

03:24 - 14.775 that have said the use of hearing officers in this context, with language

03:24 - 18.813 like this is appropriate and proper and preserves the due process rights.

03:24 - 22.016 None of that was briefed in the Commonwealth Court based upon this,

03:24 - 25.119 based upon that set of facts that you just mentioned, is the general doctrine.

03:24 - 26.954 Have any application to this case?

03:24 - 30.258 Is the what I'm sorry, doctor, are you familiar with the cherry doctor?

03:24 - 32.526 I don't think so, Your Honor. I'll save it for you.

03:24 - 33.427 I look it up.

03:24 - 36.998 Okay, counsel, just just so I'm clear, you're saying that this issue

03:24 - 38.566 wasn't even briefed in the Commonwealth Court.

03:24 - 39.567 It was raised by the

03:24 - 42.770 by the Commonwealth courts who was spotted during oral argument.

03:24 - 44.739 It was in the in the court.

03:24 - 47.942 I don't recall if they invited or were asked if there could be later

03:24 - 52.480 post argument letters and, short letters were submitted by the parties.

03:24 - 57.151 And that's the extent of this issue being brief before the court

03:24 - 58.653 or petition was filed with this court.

03:24 - 01.622 So you're, you're you're basically saying we should

03:25 - 05.326 vacate the Commonwealth Court's decision because of waiver.

03:25 - 06.327 Well,

03:25 - 08.362 that's not the issue that the court granted Ali

03:25 - 11.065 Carter on, but I certainly would not be improper to do so.

03:25 - 12.400 This is the issue was not raised.

03:25 - 14.702 I mean, it wasn't raised before the board.

03:25 - 17.705 You cannot find it in the in the transcript of the board proceedings

03:25 - 20.107 and all the emails back and forth between,

03:25 - 22.677 the school board, I think the only objection

03:25 - 25.913 they raised was to where he raised was to the virtual nature of the hearing.

03:25 - 27.481 Correct. There's no question that was raised.

03:25 - 29.383 And to the extent that that's been preserved

03:25 - 31.552 through the Secretary in the Commonwealth Court, would you get

03:25 - 33.921 I assume it has been on remand.

03:25 - 35.289 That's an issue that the Commonwealth Court

03:25 - 37.258 would have to address, along with, presumably,

03:25 - 40.261 the merits of his claim regarding the termination.

03:25 - 43.297 But this issue that it was being the hearing was before

03:25 - 46.834 a hearing officer without the board present was not raised.

03:25 - 49.603 That was not raised before the court. Why didn't you raise waiver?

03:25 - 51.872 Why didn't we raise waiver?

03:25 - 54.208 It was that argued. We we do.

03:25 - 55.543 We did in our on bond visit

03:25 - 58.546 petition in the Commonwealth Court because that was the first offer.

03:25 - 01.582 How about in the petition for a balance of appeal?

03:26 - 05.920 I yeah, I didn't I candidly, I'm not sure we thought this court

03:26 - 09.990 would grant Alcott or just to address a wave of waived the waiver argument.

03:26 - 12.393 Yeah, exactly.

03:26 - 14.161 And if that's the case, we will.

03:26 - 16.597 You know, we will be fine with the court addressing the merits.

03:26 - 19.633 I mean, I'm not hiding the fact this this issue was not raised below.

03:26 - 20.501 I mean, that's not

03:26 - 21.235 we did not

03:26 - 23.170 we weren't going to take up this court's time

03:26 - 26.140 with an alligator petition just to say the Commonwealth Court

03:26 - 27.942 shouldn't have addressed this issue because it was waived.

03:26 - 31.379 Well, but but that's a perfect that's a perfect thing

03:26 - 34.382 to raise on allocator, though, because the Commonwealth Court

03:26 - 37.585 made a ruling of law that is going to apply

03:26 - 41.088 broadly across the Commonwealth of Pennsylvania on a matter that

03:26 - 42.490 at least I don't have to go back and look at it.

03:26 - 44.892 But on the issue that wasn't even before them.

03:26 - 47.661 That's the kind of Alcott or worthy thing that we would want.

03:26 - 48.295 We you know,

03:26 - 52.533 we wouldn't have taken his appeal, you know, on an issue if he waved it.

03:26 - 54.168 But you're stuck.

03:26 - 56.270 If you didn't, if you didn't do an allocator.

03:26 - 58.005 The Commonwealth court's opinion was going to stand.

03:27 - 03.010 I understand that, Your Honor, but I guess, you know,

03:27 - 06.013 you know, without getting into sort of strategic decisions that were made

03:27 - 10.718 in filing a petition for Alice Carter, I think our concern was less so with Mr.

03:27 - 14.522 Foreman's specific case and more so with the holding of the Commonwealth Court.

03:27 - 16.824 And so I think this is knowing

03:27 - 21.228 how few it not meant as criticism, how few cases this court takes.

03:27 - 22.696 Understandably, I think

03:27 - 26.867 our focus was on the merits decision and the sort of ramifications of that.

03:27 - 29.970 And frankly, as we said in our Alexander petition, we believe,

03:27 - 33.007 as I was discussing earlier, with with Justice Roberts and,

03:27 - 36.677 I think our, you know, the ramifications not just for school boards,

03:27 - 41.282 which we think is certainly significant, but for other, boards and commissions.

03:27 - 43.851 I think that there's going to be additional challenges

03:27 - 48.122 if the Commonwealth Court's decision is either affirmed or was allowed to stand.

03:27 - 51.192 And I think that's why that was our focus in the Alexander petition,

03:27 - 54.061 knowing how difficult it is to get the court grant.

03:27 - 58.365 One, I mean, this this statutory way, which seems pretty clear.

03:27 - 59.567 Instead of,

03:28 - 02.837 turning somersaults to

03:28 - 06.974 avoid having the board simply conduct these hearings,

03:28 - 10.578 of which there are extremely few, apparently from the briefing,

03:28 - 16.283 because most of them go to arbitration

03:28 - 19.353 and because we you've given us no statistics to indicate

03:28 - 24.024 some great burden on your elected school board, people who were elected to do this.

03:28 - 27.094 Why don't you simply get your legislative delegation to make

03:28 - 31.098 a small amendment to the code to get you out of this requirement?

03:28 - 35.469 Well, as difficult as it is, as I said, to get, you know, Alec Carter,

03:28 - 36.437 granted by this court,

03:28 - 39.840 I think it's almost more difficult to get the legislature to make,

03:28 - 42.843 you know, an amendment, you know, just to satisfy, you know,

03:28 - 46.981 even an important, constituent like the school district of Philadelphia.

03:28 - 49.116 And so certainly, if that's necessary, that's

03:28 - 52.553 something that the school district may put its efforts towards.

03:28 - 54.622 But I think, you know, we believe that the law

03:28 - 58.659 that the Commonwealth Court got the law wrong and that when, statutes

03:28 - 01.729 like this one and many, many, many others in the Commonwealth

03:29 - 05.032 say that a board or a commission must conduct a hearing,

03:29 - 09.303 we believe that the precedent and, and the long standing practices

03:29 - 13.007 that that can be delegated to a hearing officer as long as the board

03:29 - 16.243 or the commission here, the Board of Education, as it did,

03:29 - 17.945 is considering the evidence,

03:29 - 20.948 is considering the record that's created by the hearing officer.

03:29 - 24.552 Sometimes longstanding practice happens to be discovered

03:29 - 28.789 much later, maybe because of an idiosyncratic,

03:29 - 30.758 teacher who's all

03:29 - 33.994 wound up about Covid or whatever to bring it to our attention.

03:29 - 35.396 And the case comes up.

03:29 - 38.465 But we realize the statute has been violated a lot.

03:29 - 41.468 That doesn't make it any less of a violation, doesn't

03:29 - 43.404 it doesn't make it any less of a violation.

03:29 - 46.407 But again, I don't see how the court can interpret,

03:29 - 49.877 sections 1127 and 1129

03:29 - 52.880 to require that the board of directors to personally,

03:29 - 56.584 handle these termination hearings, to oversee them, you know, given,

03:29 - 59.987 you know, that, that all of the other responsibilities they have, I don't see

03:29 - 03.257 how it can interpret it to require that and not interpret

03:30 - 06.961 the probably dozens of other statutes with the exact same language

03:30 - 09.897 involving other boards and commissions the same way.

03:30 - 12.032 The other one point, factually, I do want to point out,

03:30 - 13.968 is that at least in the school district of Philadelphia,

03:30 - 16.837 and I think in some of the other larger districts in the Commonwealth,

03:30 - 19.974 it is absolutely not true that these hearings happen infrequently.

03:30 - 23.377 The School District of Philadelphia has thousands of professional employees.

03:30 - 27.681 You know, there the statement which is not in the record,

03:30 - 31.752 I mean, the claim in the Appellee's brief that they don't happen frequently

03:30 - 34.121 is based on looking at the number of appeals

03:30 - 36.523 to the secretary of education, which says nothing

03:30 - 38.225 about how many termination hearings there are.

03:30 - 42.062 We know you have many, many more employees that by far than any other district,

03:30 - 45.499 which makes it all the more curious that you've given us no statistics

03:30 - 48.102 to support your claim of an onerous burden.

03:30 - 50.437 But again, I'll go back to the point. This was never raised.

03:30 - 53.107 If this had been raised at some point, and certainly,

03:30 - 53.340 you know,

03:30 - 56.243 if it had been raised and preserved before the Commonwealth Court,

03:30 - 58.412 you know, we would have put that information in the record.

03:30 - 00.481 We certainly can't give that information.

03:31 - 03.417 I mean, I don't believe we do give some information.

03:31 - 07.187 Public information, from the Department of Education.

03:31 - 11.025 You know, data about how many students, how many teachers

03:31 - 12.893 there are in the school district. Philadelphia.