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Posted by on Jan 18, 2018 in Uncategorized | 0 comments

Gerrymandering Oral Argument Roundup 1-18-18

Our roundup is all about Gerrymandering today.

The Allentown Morning Call covers the oral argument and provides quotes from political operatives on both sides. The Philly Inquirer gives a balanced look at the lawsuits possible outcomes. Reuters tacitly predicts a win for the League of Women Voters challenging the map, and HuffPost agrees. PennLive notes that it doesn’t matter whether the onlooker likes the congressional map or not; the suit turns on whether the constitution is implicated. As far away as Bryan, Texas (home of “The Good Life, Texas Style”), The Eagle picks up an AP story on the potential impact of our State Supreme Court’s ruling on the SCOTUS case still pending.

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Posted by on Dec 21, 2017 in Round-ups | 0 comments

Pennsylvania Supreme Court Round-up – 12-21-17

Two Pennsylvania Supreme Court cases get early coverage, while the other December releases remain quiet.

The Allentown Morning Call interviews the ACLU about Com v. $34,440 and the ongoing consideration of civil forfeiture law in Pennsylvania, an issue that’s sure to come back to the Court and maybe even the legislature in the near future.

Thomson Reuters covers SCF Consulting LLC v. Barrack Rodos, discussing the briefs and the difficult public policy determinations at play in the ongoing case. The Legal Intelligencer discusses the case’s procedural history and the views expressed by the lower court judges so far. This case will be watched in wider legal circles because it touches on legal ethics.

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Posted by on Dec 21, 2017 in Civil Forfeiture, Criminal | 0 comments

Com v. $34,440: Proximity to Drugs presumption may be rebutted in forfeiture proceeding

The Supreme Court of Pennsylvania continues its consideration of the powers of civil forfeiture in a 5-2 decision that the “proximity to drugs” presumption in civil forfeiture proceedings may be rebutted by evidence that the seized property was not involved in any illegal activity.

Juan Lugo was pulled over for tailgating in a “borrowed” car with several friends in Monroe County (home of “The Tricky Triangle”). The officer who pulled Lugo over then smelled marijuana, obtained consent to search the car, and discovered ecstasy in the cigarette outlet, a small amount of marijuana by the rear passenger door, and the subject dollar amount in the “b-pillar” on the passenger side of the car.

Rafael Falette came forward claiming ownership of the vehicle, and claiming that the seized money was part of a personal injury settlement which he had withdrawn in cash and used to impress his friends. He produced settlement checks in nearly this amount, making his claim plausible, but the trial court granted the Commonowealth’s forfeiture petition because the proximity between the drugs and the money produces a statutory presumption that the money was involved in drug trafficking.

The controversy in this case was whether the effect of the statutory presumption should be irrebuttable or not. The statute provides for an “innocent owner” defense; is that the only way to rebut the presumption?

Majority by Baer: Entire Record’s Evidence Must be Considered

Justice Baer, writing for the 5-2 majority, rules that the presumption that arises from physical proximity of drugs is rebuttable regardless of whether the elements of the “innocent owner defense” are met. Thus, where evidence derived from the “entirety of the record” demonstrates that the money or other property had no actual connection to drug trafficking, the forfeiture petition should be denied.

The Court first ruled, however, that the discovery of property in close proximity shifts the burden to the defendant. Accordingly, it remains the defendant’s burden to adduce sufficient evidence to prove his innocence in regards to the property at issue. In this case, the Court vacated and remanded for further consideration, holding only that the trial court erred in refusing to consider evidence outside of the “innocent owner” defense.

Dissent by Saylor: No statutory grounds exists for this interpretation

Chief Justice Saylor dissents, arguing that no other statutory grounds exist outside of the innocent owner defense to rebut the presumption of guilt created by the statute.

Dissent by Mundy: Trial Court found Falette’s testimony incredible

Justice Mundy dissents, agreeing with the Chief Justice, and also noting that the trial court did not find Falette’s testimony about his personal injury settlement credible. Mundy would have ruled that the trial court’s assessment of the facts could not be disturbed, and that the judgment should stand on that basis.

Conclusion: Civil Forfeiture is Alive and Well

The legislature recently made modifications to and moved the civil forfeiture statute to a new section (now at 42. Pa.C.S. § 5802). The Court in this opinion was not asked to consider and does not question the constitutionality of the civil forfeiture process. This is the third case this year that the Court has taken on forfeiture, and twice it has asked serious questions about the validity of the overall scheme. In this case, the Court does not raise the same questions.

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Posted by on Dec 20, 2017 in Attorney Discipline, Civil, Contract | 0 comments

SCF Consulting, LLC v. Barrack, Rodos and Bacine: A contract action against a law firm alleging an unethical fee-sharing agreement should be allowed to proceed

A divided Supreme Court of Pennsylvania agreed that a lawsuit against a law firm based on a breach of a contract should be allowed to move forward, even though the alleged contract would have been in violation of the fee-sharing rules of professional conduct. The Court was divided on the reason, and remanded for further proceedings “without present guidance from this Court.”

SCF Consulting filed a civil complaint against Barrack, Rodos & Bacine, a law firm on Market Street in Philadelphia (where Benjamin Franklin performed many of his electricity experiments). SCF alleges that Barrack Rodos failed to make contracted for payments to a consulting firm based on a percentage contingent recovery. Barrack Rodos denied the existence of such a contract and filed preliminary objections arguing that, even if such a contract existed, it would be void under the Rules of Professional Conduct.

The trial court dismissed the complaint via preliminary objections.

Opinion by CJ Saylor: We don’t agree on this case, but it should be allowed to go forward

The Chief Justice, joined by Justice Dougherty, lays out the compelling arguments on both sides, and rules 4-3 for the whole Court that the breach of contract action must be allowed to go forward. The question presents a Scylla and Charybdis: a per se rule in favor of dismissal may put lay and legal parties on notice that fee-sharing contracts are unenforceable and thus discourage their formation, but it would also reward unscrupulous attorneys, who are already in a powerful bargaining position with non-lawyers, and result in a windfall to the unethical attorney.

The Rules of Professional Conduct purport not to affect any substantive law, but rather only govern the conduct of attorneys. Should the disciplinary board be a client’s only remedy when an attorney agrees to an illusory contract, or should the client be able to resort to the courts for a remedy?

Saylor and Dougherty “would hold only that the contract cause of action is not per se barred by the purported infraction on [the law firm’s] part and, accordingly, the county court’s bright-line approach to the unenforceability of the alleged consulting agreement should not be sustained.” However, the majority is only willing to agree “that the present contract action should not have been dismissed.” Accordingly, “the dismissal will be overturned” and remanded for further proceedings “without present guidance from this Court” as to the ultimate underlying issue.

Conclusion: A case to watch

The Court’s internal divisions on this matter give both parties a second bite at the apple, and the arguments developed before the Court of Common Pleas and in subsequent appeal will be interesting to watch. You can be almost certain that this will be back before the Court again soon.

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Posted by on Dec 7, 2017 in Round-ups | 0 comments

Round-Up 12/7/17

It’s always strange to wake up to find that TMZ is covering Pennsylania law. Coverage of Rapper Meek Mill’s curious case continues with calls for investigation into the trial judge who sentenced him. NBC News covers CCP Judge Brinkley’s ruling that Mill is a “danger to the community.” Meanwhile, several organizations are calling for investigations into Brinkley’s allegedly unethical behavior both in this case, and in Financial Interest filings. Complex and XXL Magazine discuss the organizations pursuing an investigation into Brinkley.

The Johnstown Tribune-Democrat argues that gerrymandering is an unfortunate and unavoidable part of politics, while the Huffington Post claims that Pennsylvania’s top GOP leaders are being shady in their claim of legislative privilege in League of Women Voters v. Com, currently pending before the Commonwealth Court. The case may end up being decided by SCOTUS’s decision in Gill v. Whitford, which is comprehensively covered by SCOTUSblog.

Two state legislators are calling for a “Limited Constitutional Convention.” Philly’s The Inquirer offers that many of the current proposals for constitutional change were considered and rejected at the last constitutional convention in 1967.

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