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Posted by on Nov 23, 2017 in Civil, Right to Know | 0 comments

Miller v. County of Centre: District Attorneys are not “Judicial Agencies” exempt from Right to Know disclosure requirements

Right to Know (RTK) requests by several defense attorneys in Centre County (home of Mount Nittany) revealed communications between DA Stacy Parks Miller and judges on CCP and MDC, which the defense attorneys used to demonstrate ex parte communications in various cases. The County handed over all documents requested without consulting with Parks Miller or the judicial staffs. Parks Miller sued for an injunction prohibiting future disclosures on the basis that she is not subject to the general disclosure requirements of the Right to Know Law (RTKL) because she is part of a “judicial agency” as defined in the statute.

The Supreme Court of Pennsylvania ruled in Miller v. County of Centre that DAs are not “judicial agencies” for purposes of the RTKL, and are subject to the general disclosure of requested documents unless they can show another valid privilege or exemption.

Majority by Wecht: Plain text of RTKL includes DAs in disclosure requirements

Justice Wecht, writing for the 5 members of the unanimous Court, says that an “examination of the RTKL, the definitional section of the Judicial Code, 42 Pa.C.S. § 102, and the definitions provided in our Rules of Judicial Administration, demonstrate that a district attorney’s office is not a ‘judicial agency’ for purposes of the RTKL,” and thus, is subject to the general disclosure rules of the statute.

Determining how the DAs of Pennsylvania are classified is a crucial step in the fight over disclosure of their records. This is because there is a presumption that “All records in the possession of Commonwealth and local agencies are presumed to be public records subject to disclosure” unless a specific exemption, privilege or statute can be shown to exempt them. The common law right to access public documents that precedes Pennsylvania’s first RTK statute. The public policy of Pennsylvania strongly supports disclosure of government documents upon request of private parties.

However, this broad duty to disclose does not apply to “judicial agencies” under the RTKL. The DA’s argument “relies entirely upon the facially curious inclusion of district attorneys within the definition of ‘system and related personnel’ set forth in the Judicial Code and the Rules of Judicial Administration.” But a quick review of the Judicial Code and the RTKL reveals that DAs are defined as “related staff,” and not “personnel of the system.” Thus, they are not shielded as “judicial agencies” under the RTKL.

This reading is consistent with the objective of the RTKL, which “‘is to empower citizens by affording them access to information concerning the activities of their government,’ to promote openness to official government information in order to prohibit secrets, scrutinize the actions of public officials, and to make public officials accountable for their actions.” The RTKL and its predecessor, RTKA were designed to increase accountability for unelected agencies, and to ensure the public’s right to access information remains unfettered by red tape.

Concurrence by Donohue: We’re borrowing definitions from other statutes

Justice Donohue, joined by Justice Dougherty, concurs in the result that DAs are not judicial agencies, but chides the majority for borrowing too liberally from the judicial code in making its determination in the present case. The definitions of the respective statutes “are intended to apply only to the defined terms contained in those statutes and rules.”

Conclusion: So…about those ex parte communications…

Perhaps I’m just amped up from reading about judges being dismissed over ex parte communications, but I’m extremely curious to know more about the underlying facts in this case. The Court makes no comment on the scandalous allegations—and perhaps because they’re either pending as formal charges, or because the charges went nowhere already—but I can’t contain my own curiosity as to the nature of these communications and the results of them.

Our Supreme Court continues to chart a bold and broad reading of the RTK’s disclosure requirements—consistent, I believe, with the text and purpose of the RTKL. In PSP v. Grove, decided earlier this year, the Court did not shy away from making the State Police offer up their motor vehicle recordings in a broad ruling; now the Court makes clear that DAs are required to give up information upon request, as well.

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Posted by on Nov 23, 2017 in Civil, Insurance, Statutes of Limitations | 0 comments

Erie Ins. Exchange v. Bristol: SOL on UM claims begins to run at refusal to arbitrate

On July 22, 2005, Mr. Bristol was injured when he was struck in a hit and run accident within the scope of his employment in Upper Dublin Township (childhood home of Josh Singer, an Emmy-nominee and Oscar winner). Two years later, Bristol’s attorney put Erie on notice of the uninsured motorist (UM) claim, and Erie responded with a “reservation of rights” letter. Both parties agreed to several of the arbitrators and engaged in negotiation. Bristol had to put the matter on hold for a few years when he was incarcerated on unrelated matters. But negotiations stalled, and in May 2013, Erie filed a declaratory judgment action seeking a ruling that Bristol’s 4-year breach of contract statute of limitations (SOL) had run pursuant to 42 Pa.C.S. § 5525.

This is an issue of first impression for SCOPA, although the Superior Court has a long line of precedents on the matter.

Majority by Mundy: Clock starts ticking on breach

Justice Mundy, speaking for the 6-1 majority, rules that a UM claim’s SOL begins to run at the date of the insurer’s breach, which could be at the date of the denial of coverage to the insured, or the date of some other breach of a contractual obligation, such as the date that the insurer refused to arbitrate. This ruling is based on the principle that it is “the accrual of the right of action that starts a limitations period to run.” This accords with the majority of jurisdictions.

There are essentially three ways to determine when the SOL for a UM claim begins to run: at the denial of coverage, as argued by Bristol, at the time the injured party knows the tortfeasor was uninsured (or underinsured), which is what Erie urged, or in a more absolute sense, at the date of the accident. The Court denies Erie’s argument that insurance contracts are different from other contracts subject to the general four-year SOL, and finds that Bristol had no need to file in court to preserve his claim until his contractual rights were denied—in this case, when Erie refused to move forward with arbitration on the basis that the SOL had run.

The majority attempts to quell the concerns of the insurance industry that there will now be no clear cut-off for UM claims by suggesting that cases of extraordinary delay may be solved by “equitable principles.” Usually, claimants will gain nothing by delay, and if they do stall unreasonably, the courts can bar their claims on other grounds.

Dissent: I’m fine with the ruling, but this argument was forfeited below

Justice Wecht may be the only dissenter, but he writes with enough fury for the whole Court. A little background: back in May, after oral argument, the Court re-phrased the grant of allocator, with the practical effect of expanding the issue it had originally granted for briefing and argument. It did so over Wecht’s vehement dissent (the Chief Justice’s explanation is here). Justice Wecht argued the matter had been forfeited by Bristol at both the trial court and the Superior Court, where Bristol’s only arguments were that he notified Erie of his intent to pursue a UM claim within the applicable four year time period, and in the alternative, that the four-year SOL was tolled by the filing for arbitration. In other words, he never suggested that the time period had not even begun to run, which was his argument before the Supreme Court.

“I refuse to endorse Bristol’s choose-your-own-adventure litigation strategy,” Wecht explains, arguing it is time “either by rule or by decision—to commit to clear standards for determining whether a particular case warrants departure from our ordinary issue preservation doctrines. Absent such standards, the unpreserved issues that the Court regularly declines to consider will continue to be indistinguishable from those that we idiosyncratically agree to resolve. In my view, such arbitrary and selective enforcement of our Rules of Appellate Procedure is ill-advised.”

Conclusion: Perhaps there’s a corresponding duty of good faith on the part of the insured

The Court’s opinion appears to be correct on the substance, as even the vehement dissent points out. Your SOL begins to run on a breach of contract when the contract has been breached. But unlike most contractual situations, the insured has no real obligations to the insurer after the date of the accident. His obligations are done. He paid his premiums, and the contract was valid on that date.

So how can an insurance company know that the insured is abandoning his UM claim, or is simply sitting on it? Can the insurance company force his hand in any way? Perhaps there is a corresponding duty of good faith and fair dealing owed by the insured to his insurance company that forces him to communicate if asked what he intends to do. Realistically, this opinion leaves the ball in the insured’s court to wait to file or move forward on a claim until he’s ready.

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Posted by on Nov 23, 2017 in Attorney Discipline, Civil, Constitutional Provisions | 0 comments

In re Roca, In re Segal: No, we can’t just ignore the Constitution

The Supreme Court of Pennsylvania is, perhaps, the most powerful state Supreme Court within its own jurisdiction. Given comprehensive power over all attorney discipline matters by the state Constitution, our Supreme Court has struck down validly-passed statutes that transgress this judicial power. Pennsylvania’s Supreme Court also maintains “King’s Bench” authority to step into any case at any time and render a decision on any matter, great or small, within a case. Other jurisdictions limit their high courts by practice or rule.

These cases call on the Pennsylvania Supreme Court to determine whether the Commonwealth’s Constitution limits SCOPA’s power to re-consider the punishments handed down by the Court of Judicial Discipline (CJD), and whether its common law King’s Bench power gives the Court power to intervene where the Constitution says it cannot.

Three judges were caught up in various schemes involving phone calls to one another and receiving phone calls from government officials asking for special favors in various cases, including entering continuances, re-opening cases closed by default, and granting or denying motions. The calls were recorded by the FBI pursuant to criminal investigations and then turned over to the CJD.

One judge resigned amidst the scandal; the remaining judges were removed from the bench and barred from holding future judicial office. Judge Segal’s offenses seem to be much more serious, involving an ongoing and persistent pattern of ex parte phone calls, favors and other judicial misconduct. Judge Roca’s conduct was limited to one instance in which she requested a favor from another judge for a family member. Roca argued that her conduct did not warrant the harsh penalties imposed on her, and that the Court should moderate her punishment in consideration of the punishment imposed for past crimes.

These cases were argued together, but ruled on separately. I will focus on In re Roca because its legal argument is much more interesting, and because the ruling in In re Segal follows a fortiore.

Majority by CJ Saylor: King’s Bench power does not override the Constitution

Pennsylvania’s Chief Justice, speaking for the 4-3 majority, makes the final ruling on this judicial misconduct. The Chief Justice rejects the notion that the Court’s common law King’s Bench power allows it to step into a proceeding for which the Commonwealth’s Constitution strictly limits review. The Court is limited to reviewing the record to ensure the facts found were not erroneous and that the punishment inflicted is not unlawful. It is not the place of the Court to trample the prerogative of the people or override the Constitution.

Relying on the plain language of Article V, § 18(c)(2), the Court declares that its standard of review is limited to overturning a judgment which is clearly contrary to law. The Court may not second-guess the punishment prescribed by the CJD, nor may it replace CJD’s judgment with its own. The Court may not ignore the Constitution in favor of its common law King’s Bench power.

In response to the claim that the CJD exceeded its authority in removing the Judge, the Supreme Court rules, “The CJD has wide discretion to fashion the appropriate penalty once it finds a predicate violation.” The Court opens the door to the idea that a punishment could be so beyond the pale of appropriateness, but does not make clear what that punishment would be.

Finally, the Court rejects Roca’s claim that she should not face such a severe punishment because it is unfair to her. The primary purpose of Judicial Discipline is to maintain the public’s confidence in the judiciary and to repair the public’s perceptions where misbehavior has brought the courts into disrepute. Thus, Roca’s claims of a personal right to more merciful consideration fall against the public concern.

Segal’s situation is far more serious, and Segal’s arguments are not as well developed. The Court’s majority affirmed the convictions of both judges.

Dissent by Donohue

Justice Donohue dissents, appalled at the “breathtakingly narrow definition of our standard of review,” which is “patently violative of the United States Constitution,” argues that the Court should engage a much broader inquiry into the conviction, and consider these appeals like any other. She urges that the Court should ensure the equal administration of justice for every citizen—including disgraced former judges.

Conclusion

The Pennsylvania Constitution made the CJD an independent body capable of exercising its discretion in determining what to do with judges who had violated the public trust. SCOPA’s power to review these decisions is accordingly limited. This is one of the few places where our Supreme Court’s power is limited.

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Posted by on Nov 16, 2017 in Criminal, Expert Testimony, Pennsylvania Rules of Evidence | 0 comments

Com v. Maconeghy, Jr.: Medical testimony based on nothing but another witness’s testimony is not all right, all right, all right

In a criminal prosecution about sexual assault of a child, a medical doctor opined, “The history [the child] provided to me pretty clearly indicated that she was sexually abused.” The doctor concluded with this classic statement of scientific certainty: “I really believe strongly that was my medical conclusion that this child was victimized.” Can a doctor testify to a medical opinion based entirely on the “history” provided by the alleged victim?

Our Supreme Court rules that the doctor cannot offer such testimony because such testimony invades the province of the jury.

Majority by CJ Saylor: Testimony of a sexual assault victim cannot be cloaked in medical authority by an expert witness

Chief Justice Saylor writes for the majority, explaining that a medical expert may base his conclusion on the testimony of the sexual assault victim, and may even relay that testimony to the jury, but only if the medical expert’s testimony is based on something, well, medical. To hold otherwise would put “a certificate of veracity on the child’s testimony” and offer the jury “a much sought-after hook on which to hang its hat.”

The central focus of the Court’s inquiry is to the “province of the jury” analysis. The Court is concerned that the jury’s role as trier of the credibility of the witnesses is not usurped by a confident, educated witness willing to assure the jury that he has already weighed the victim’s statement in his well-trained mind and come to a conclusion.

The Court notes that this holding is the majority of jurisdictions: most states and federal courts will not allow a medical expert to testify solely on what he was told by the victim. SCOPA, having taken one of the more restrictive approaches in restricting an expert’s testimony as to general characteristics of sexual assault victims, can’t “now forge a minority pathway on the opposite side of the spectrum by sanctioning the admission of evidence having a more direct bolstering effect specific to the complainant.”

“Upon our review, we hold that an expert witness may not express an opinion that a particular complainant was a victim of sexual assault based upon witness accounts couched as a history, at least in the absence of physical evidence of abuse.”

Dissent by Todd: There’s a difference between expert testimony on the subject of witness credibility and expert testimony on subjects which are merely founded on assessments of witness credibility

Justice Todd argues that the Court is actually departing from its prior caselaw, including several cases where she believes the matter had already been decided adversely, albeit in dicta. Quoting extensively from the trial transcript, Todd argues that the medical expert’s testimony was not, “The victim’s testimony is credible,” but rather, something more along the lines of “I’ve considered several things, one of which is the victim’s testimony, and come to a conclusion.”     

Dissent by Mundy: The objection was forfeited, and was invited error

There are a number of odd things about the objections in this case at the trial court. Justice Mundy takes on the elephant in the room: by the majority’s description of the case, it sounds as though trial counsel forfeited his objection by failing to raise it for almost a day at trial. Indeed, the trial court transcript reveals that the judge was not sure of the exact wording of the witness in order to rule on defense counsel’s objection.

In addition, some of the testimony was actually invited by defense counsel on cross-examination. Mundy points out that the expert testimony had to be disclosed in discovery, and that defense counsel could not claim to have been caught by surprise in the case. He was aware of the coming testimony, but failed to be prepared to timely object. Mundy sums up her frustration: “Despite defense counsel’s failure to timely object during his own questioning of the witness, Appellee is now rewarded with a new trial.”

Conclusion: No one likes child molesters, but this seems like the right decision

No one likes defendants like this, so it’s easy to look the other way when an apparent abuse of procedure helps put the guy away. But the majority appears to be right: we don’t need an expert medical witness to declare another witness credible. Doctors can testify to medical matters, but what business do they have basing their “expert medical opinion” gained by their years of experience in medicine to tell a jury that the kid seems credible?

The highest role a court can play is in creating a fair trial for an evil man. In this respect, this type of opinion represents the best of American law. Even the wicked deserve a fair hearing, and if the victim is credible, the jury will be able to tell.

But Justice Mundy’s dissent points up a problem in this case. The objections just don’t seem to have been timely. The Superior Court found they were, and the majority doesn’t even discuss this point. Perhaps there was a reason the Court was satisfied about timeliness, but it is not apparent to the reader of the case.

Regardless, this opinion is important. It will be dispositive in the sexual assault context, will have an impact on expert witnesses well outside the criminal context, and will be cited in briefs on expert witness testimony for years to come.

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Posted by on Oct 19, 2017 in Criminal | 0 comments

Com. v. Spotz: This is getting old

The Post-Conviction Relief Act (“PCRA”) allows a criminal defendant to file a petition within one year of final judgment seeking review of his conviction. This protection ensures that every criminal defendant will have at least two chances to prove that a mistake sent them to prison—or worse, to death row.

The Supreme Court of Pennsylania maintains mandatory and exclusive jurisdiction of all death penalty appeals, whether on direct or collateral action. This includes PCRA appeals—even where the PCRA board found that the petition was totally without merit.

These two statutes conjoin to present a vexing problem for the Supreme Court, wherein it is bound to consider appeals repeatedly from death row inmates willing to file absurd and meritless petitions, and force the Highest Court of the Commonwealth to reconsider the claims involved.

Spotz has been here before

The Supreme Court typically does a good job of demonstrating that its commitment to reviewing death penalty cases is serious, even when the issues have been exhaustively and accurately adjudicated. But one can easily sense the Court’s impatience in this brief opinion in everything from the recitation of the facts to the summary dismissal of all claims. Indeed, this case actually represents two of Spotz’s appeals rolled into one—making ten total times that Spotz has come up to the Supreme Court for a consideration of his claims. Indeed, in a footnote, the Court lists the eight previous opinions issued regarding Mr. Spotz, and in addition, one blistering special concurrence by former Chief Justice Castille, excoriating Mr. Spotz’s lawyer for various ethical violations.

But the Court is required to consider Spotz’s appeal, since he sits on death row. Accordingly, the Court proceeds to consider his claims.

Wecht for the Majority: Spotz can’t use a ruling about a federal statute to save himself from a different statute

Justice Wecht summarizes as follows: “In 1995, Spotz embarked upon a three-day homicide spree through York, Schuylkill, Cumberland, and Clearfield Counties. Spotz killed four people, one of whom was his own brother. In 1996, Spotz was convicted of first-degree murder and sentenced to death. He has brought many collateral appeals since then.”

Spotz argued that two recent SCOTUS cases apply to him: Johnson v. U.S. and Welch v. U.S, both decided in the last three years. In these cases, the Supreme Court of the United States ruled that a federal statute was void for vagueness, and that this finding should retroactively apply to those whose convictions have already been made final. Spotz pointed out that there are similarities between the federal criminal statute in question and a death penalty aggravating sentencing factor used by the jury to sentence Spotz to death.

PCRA Exception for Newly-Recognized Constitutional Right Clearly Does not Apply to Spotz

Rejecting Spotz’s claim, the Court points out, “It is axiomatic, and self-evident, that the asserted newly-created right actually must enure to the benefit of the petitioner.” In other words, Johnson isn’t talking about you, Mr. Spotz, and you knew that. Pointing to similarities in a statute that’s been stricken on constitutional ground isn’t the same as pointing to a constitutional right that has enured to your benefit. For Spotz to prevail, he needs the Pennsylvania statute to be stricken down, and for that striking down to be retroactively applied. He cannot use the mechanisms of PCRA to litigate an argument he didn’t think to present in his initial trial.

Conclusion: Time for PCRA and Death Penalty Reform

Underlying the Court’s ruling is the well-known interest of finality of judgment, particularly when it comes to death penalty cases. A brutal murder occurred, and when a jury has found a murderer guilty beyond a reasonable doubt, he should not be permitted to game the system to reconsider his conviction repeatedly.

Frustratingly, the Court is bound by statutory duty to reconsider this murder—and his victims’ families to relive it—every time Mr. Spotz decides to file a new petition. The time has come for the General Assembly to put new and reasonable limits on reviews of death penalty cases. While we certainly want the Supreme Court of Pennsylvania to have exclusive jurisdiction of death penalty appeals, surely we don’t need them to review denials of every unhinged petition attempted by an understandably but annoyingly desperate petitioner.

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