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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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Posted by on Dec 5, 2017 in Round-ups | 0 comments

Roundup – 12/5/17

The Court is getting a lot of coverage this year, and Pennsylvania law has been back in the spotlight with more high-profile cases. To that end, a judge on the Superior Court has denied rapper Meek Mill’s Bail Request. An appeal to the Supreme Court of Pennsylvania is likely. In another important Superior Court case, a ruling issued requiring a man to turn over his computer password over his Fifth Amendment objection. His lawyer promise an appeal to SCOPA, and appears to be a case of first impression in Pennsylvania.

In an interesting tidbit, the Williamsport Sun-Gazette reports that Chief Justice Saylor is the highest-paid government official in Pennsylvania at $213,750 per year. I have not fact-checked this assertion.

And coverage of the Gerrymandering case continues. This case is almost certain to land in front of SCOPA for a second time next year unless SCOTUS resolves the matter nationally.

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Posted by on Dec 5, 2017 in Civil, Constitutional Provisions | 0 comments

Scarnati v. Wolf: Press Releases aren’t “Proclamations”

In Scarnati v. Wolf, the Supreme Court of Pennsylvania rules 6-1 that a press release does not satisfy the Pennsylvania Constitution’s requirement of veto by proclamation under Article IV, Section 15.

In 2014, two appropriations bills passed the House and Senate, and were presented to the Governor for his signature. The House adjourned upon passing the bill, and the Governor vetoed the bill, returning it to the parliamentarian of the House. Unlike under the Federal Constitution, where the President’s veto back to the House would be the end of the matter if the House had adjourned, the Pennsylvania Constitution requires the Governor to issue a “proclamation” announcing his veto. The Governor, in this case, issued a press release announcing and explaining his veto. The House and Senate challenged the veto in court as invalid.

Two issues were presented in this appeal: first, what is an “adjournment” under this clause? Since the House adjourned, and the Senate did not, was the body adjourned such that the onus lay on the Governor to issue a proclamation, or on the House to re-consider the vetoed provisions of the two bills?

Majority by Wecht: The House was Adjourned, and Notice by Proclamation Was Required

The majority, speaking by Justice Wecht, held that the General Assembly did stand adjourned when the vetoed provisions of the bills were returned to the House parliamentarian, and that the Governor’s failure to publish a proclamation of his veto was fatal to the rejection of the bill. Discussing the overlap and distinctions of the Federal Government’s constitutionally prescribed procedure, the Court discussed the underlying goals of the “filing and proclamation” provisions of Article IV, Section 15. Paramount among these is public notice of the struggle between political branches, and the current status of a proposed bill.

The Court had little trouble dispensing with the “ambiguity” about when the legislature actually adjourned. There had been some discussion that the House had impermissibly adjourned without the Senate’s approval, but given that both houses had entered their adjournments upon their journals without any note of objection, the Court concluded that the presumption was in favor of constitutionality.

Given, then, that the House prevented the return of the Governor’s veto by its adjournment, the Court noted that the
The Court acknowledged that the parliamentarian is charged with receiving vetoes from the Governor during the regular session, but went on to reject the Governor’s argument that the parliamentarian was an “agent” of the House designated to accept “service” of vetoes. “We reject the Governor’s argument that the procedure utilized for the return of a bill during a legislative session somehow dictates the procedure to be used during an adjournment of the General Assembly.” The Court goes on to note that, even if the parliamentarian could be designated an agent for the House, there is no evidence that he was ever so designated.

Thus, the Court was constrained to consider whether the Governor appropriately followed the “filing and proclamation” protocol to finalize his veto. Although the Governor appropriately filed his objections with the Secretary of State, his issuance of a press release did not satisfy the requirements of the Constitution. The Supreme Court of Pennsylvania rejected Governor Wolf’s argument that changing technology made the press release or even a tweet a sufficient form of notice to all citizens. “Formality is a critical tool in distinguishing political rhetoric and advocacy in its myriad forms from public notice of a constitutionally or legally significant declaration. Such formality cannot be abandoned.”

Historically, proclamations in Pennsylvania have followed a very precise format. While that format need not be followed precisely, at least some of the “indicia” or “hallmarks” of formality needed to be included. These included the Governor’s seal, and most importantly, the proclamation had to include explicit language demonstrating that the Governor was following the “filing and proclamation” procedure under the Constitution. Thus, his “informal communication to the public via mass media” was insufficient to sustain a veto.

Conclusion: Budget Finality…For the 2014 Budget

This case demonstrates the importance of having constitutional scholars on staff in political offices. It is fairly important that the Governor’s staff gave little or no thought to the procedure for properly vetoing a bill under the circumstances, and only after the fact did they give thought to how to spin the situation to show that they had complied with the rules. As the old saying goes, it’s best to measure twice so you have to cut only once.
The precise definition of a “proclamation” may now come under fire in future cases. The Court offers a general form that has sufficed in the past, and the Governor’s office would be wise to use that form in future cases.
It is unfortunate that a case like this takes three years to reach a final ruling at SCOPA. Meanwhile, provisions of the budget laws have been under fire and in limbo. Now, at least, there is finality on the budget from three years ago.

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Posted by on Dec 1, 2017 in Criminal, Suppression | 0 comments

Com v. Livingstone: You’re Drunk, I presume.

In Commonwealth v. Livingstone, the Supreme Court of Pennsylvania ruled that a police officer must have articulable explanation for his “community caretaking” to use it as an exception to the warrant requirement.

Late one evening, Trooper Frantz was out on I-79 (named for former Pennsylvania Governer Raymond Shafer) when he saw a car stopped on the side of the road, with no hazard lights on. Concerned that the motorist might be having trouble, he turned on his emergency lights and pulled up next to her. He rolled down his window and spoke to the driver—Ms. Livingstone—who was putting an address into her GPS. He spoke to her and she stared back, assuring him she was OK.

But our Trooper was a gentleman, and he was concerned she wasn’t really OK. He pulled in front of her car, parked, and walked to the driver’s door to continue checking on her. The Trooper began to notice that Ms. Livingstone’s behavior was strange, and so he required a breathalyzer. Before long, she was handcuffed and under arrest for a DUI.

Majority by Todd: Community Caretaking Exception Must be Narrowly Tailored to the Objective

Justice Debra Todd, writing for the fractious majority, holds that the “community caretaking exception” to the warrant requirement of the Fourth Amendment requires the officer’s actions to be supported by clear and articulable explanation of the public service he was attempting to accomplish.

Mere encounters have long been the camel’s head under the tent in Fourth Amendment law, and the Court’s majority expresses concern that the community caretaking exception not grow to the point of invalidating the need for probable cause. If an officer can claim he is just checking in on a motorist, he can almost always initiate a stop. This conclusion was bolstered in this case by the officer’s use of lights. Pointing out that it would be a crime for the motorist to pull away while the officer’s lights are on, Todd argues that it would be absurd for a motorist to believe that she was free to leave at that point.

While stopping short of requiring a “complete divorce” from the facts giving rise to the community caretaking activity the officer initially undertook and the criminal investigation that soon followed, the majority ruled that an officer “must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed” before engaging the community caretaker exception, and that “the police action must be independent from the detection, investigation, and acquisition of criminal evidence.” Finally the Court ruled that these determinations are based on the totality of the circumstances, and that the action taken by police must be tailored to rendering assistance or mitigating the peril.”

Com v. Livingstone: You’re Drunk, I presume.

In Commonwealth v. Livingstone, the Supreme Court of Pennsylvania ruled that a police officer must have articulable explanation for his “community caretaking” to use it as an exception to the warrant requirement.

Late one evening, Trooper Frantz was out on I-79 (named for former Pennsylvania Governer Raymond Shafer) when he saw a car stopped on the side of the road, with no hazard lights on. Concerned that the motorist might be having trouble, he turned on his emergency lights and pulled up next to her. He rolled down his window and spoke to the driver—Ms. Livingstone—who was putting an address into her GPS. He spoke to her and she stared back, assuring him she was OK.

But our Trooper was a gentleman, and he was concerned she wasn’t really OK. He pulled in front of her car, parked, and walked to the driver’s door to continue checking on her. The Trooper began to notice that Ms. Livingstone’s behavior was strange, and so he required a breathalyzer. Before long, she was handcuffed and under arrest for a DUI.

Majority by Todd: Community Caretaking Exception Must be Narrowly Tailored to the Objective

Justice Debra Todd, writing for the fractious majority, holds that the “community caretaking exception” to the warrant requirement of the Fourth Amendment requires the officer’s actions to be supported by clear and articulable explanation of the public service he was attempting to accomplish.

Mere encounters have long been the camel’s head under the tent in Fourth Amendment law, and the Court’s majority expresses concern that the community caretaking exception not grow to the point of invalidating the need for probable cause. If an officer can claim he is just checking in on a motorist, he can almost always initiate a stop. This conclusion was bolstered in this case by the officer’s use of lights. Pointing out that it would be a crime for the motorist to pull away while the officer’s lights are on, Todd argues that it would be absurd for a motorist to believe that she was free to leave at that point.

While stopping short of requiring a “complete divorce” from the facts giving rise to the community caretaking activity the officer initially undertook and the criminal investigation that soon followed, the majority ruled that an officer “must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed” before engaging the community caretaker exception, and that “the police action must be independent from the detection, investigation, and acquisition of criminal evidence.” Finally the Court ruled that these determinations are based on the totality of the circumstances, and that the action taken by police must be tailored to rendering assistance or mitigating the peril.”

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Posted by on Dec 1, 2017 in Civil, Justiciability | 0 comments

In re 2014 Allegheny County Grand Jury: Mootness ruling must be based on facts

In an unusually brief, unanimous opinion, Chief Justice Saylor ruled that the Superior Court erred in finding a dispute between two parties moot where the facts of record did not clearly demonstrate mootness.

WPXI, a television station, sought access to certain sealed grand jury documents about a sex scandal at a local school on the basis of Pennsylvania’s common law right of public access to judicial documents. The Commonwealth fought the disclosure of the documents based on the need for privacy in grand jury proceedings. The trial court ruled the documents could not be disclosed, and the Superior Court dismissed the matter completely on WPXI’s admission that the documents had been leaked by another juror and were available on the internet. Both parties agreed the dispute was live, but the Superior Court did not.

The Supreme Court of Pennsylvania reversed. A court should not make a mootness determination unless the facts make clear that the controversy is in fact of no effect. In this case, a news agency has a stronger interest in obtaining documents “from the source” than other litigants might, and it is not clear that its concerns are satisfied by the disclosure of the documents from a third party.

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