Feature: Free and Equal Elections, Deferred

This June, the Court issued its decision in Working Families Party v. Commonwealth, 34 EAP 2017 (“WFP”), rejecting a claim by a Democratic and would-be-also-WFP candidate, the WFP, and several WFP-aligned voters that the “anti-fusion” provisions of Pennsylvania's Election Code, which prohibit a candidate from filing petitions to seek multiple parties' nominations for a particular office, but do not prohibit write-in campaigns for Democratic and Republican nominations for a particular office (or vice-versa), violate, inter alia, their Pennsylvania constitutional right to free and equal elections. Although the decision is, at first blush, merely an evaluation of a somewhat arcane provision of the Election Code, it functionally guarantees major-party (and major-party-machine) dominance of Pennsylvania politics in perpetuity.

In the opinion, authored by Justice Sallie Mundy and joined by Chief Justice Thomas Saylor, as well as Justices Max Baer and Kevin Dougherty, the Court essentially reasoned that the plaintiffs' claims were meritless because, so long as a candidate is permitted to seek a single party's nomination (and so long as any candidate can avail himself or herself of the write-in exception), the anti-fusion provisions do not dilute any voter's power to select the candidate of his or her choice in the general election:

[T]he overarching objective of [the Pennsylvania constitutional right to free and equal elections] is to prevent dilution of an individual's vote by mandating that power of his or her vote in the selection of representatives be equalized to the greatest degree possible with all other Pennsylvania citizens. Viewed from this perspective, Appellants have not established that their votes were diluted by the ban against cross-nomination. Here, Appellants had the opportunity to support and vote for the candidate of their choice in the 2016 general election. In no sense were their votes diluted by the fact that [the candidate] appeared on the ballot only as the candidate of the Democratic Party. Here, Appellants had the same right as every other voter, and thus the foundational principle underlying [the Pennsylvania constitutional right to free and equal elections] is not offended.

Appellants' arguments with respect to [the write-in exception do] not warrant relief. . . . [A] successful write-in candidate may be declared the winner of a primary election. . . . [T]he potential for fusion by a successful write-in campaign is not limited to major party candidates. The same may be accomplished by a political body. Even in a situation where one candidate appears on a ballot with two major party designations due to write-in votes in a primary election, . . . voting rights in the general election are not affected because a voter supporting such a candidate is not in a position superior to the voter casting his ballot for a candidate having a single political designation. In such scenario, the vote is counted once.

Majority Opinion at 19-20 (internal citations and quotations omitted).

The Court's reasoning, although certainly one way to conceive of vote dilution, ignores that the anti-fusion provisions not only make it practically more difficult for candidates to seek the combined nominations of a minor party and major party than of two major parties, but may also practically prevent third parties and third-party aligned voters from nominating their first-choice candidates, and practically force third-party voters to choose between supporting their preferred candidate (in the hope that he or she wins the election) or their party's nominee (in the hope that they might improve their ballot status). As Justice Wecht, joined by Justice Donohue, explained in some detail in his concurring and dissenting opinion:

Robert, a self-identified “centrist,” seeks the nominations of both the Democratic and Republican parties in his 2022 campaign for Governor of Pennsylvania. A lifelong Democrat by registration, he pursues that party's nomination by taking the steps necessary to secure a place on that party's primary ballot. To do so, he must collect two thousand signatures in the three-week period between the thirteenth Tuesday before the primary election and the tenth Tuesday before the primary. A longtime Democratic politician, he collects the signatures with ease. Meanwhile, Robert vigorously makes his case for a write-in vote to Republican voters. With a crowded Republican field from which no frontrunner has emerged as the primary approaches, Robert's effort gains traction.

Roberta, also a long-time registered Democrat but of a more liberal bent, also enjoys enough party support to believe that she would defeat Robert for the party's nomination in the same race were she to appear on the Democratic Party's primary ballot. However, by Roberta's calculations, a candidate who runs as a more liberally-inclined Democrat in the general election will face an uphill electoral battle against the Republican nominee, especially because a third party, True Blue, recently has emerged to advocate a more aggressive approach to certain policy positions associated generally with the Democratic [P]arty and has gathered enough support for its nominees to have acted as spoilers in recent races by siphoning off Democratic votes. Thus, Roberta also seeks the support of this upstart party, which remains a political body under state law subject to the more burdensome signature requirements that apply to such a body. A substantial majority of the True Blue rank and file, for their part, believe that Roberta best embodies the party's collective values, and embrace her desire to seek the nomination in tandem with that of the Democratic Party.

If Roberta sought only the True Blue nomination, she would have from the tenth Wednesday before the primary until the second Friday after the primary (or just shy of twelve weeks) to collect a number of signatures equal to two percent of the largest vote cast for any elected candidate in the state at the last state-wide election in order to secure ballot placement statewide on True Blue's behalf, bring all necessary papers together, and submit them to the Secretary of the Commonwealth. But because she also seeks the Democratic Party nomination by write-in vote (her only option if she wants the True Blue nomination), the time period that she has to collect signatures in furtherance of True Blue's nomination is foreshortened by eleven days, because if she is successful in her write-in campaign for the Democratic nomination on primary day, she forfeits the right to submit True Blue nomination materials thereafter. Thus, she must collect, organize, and validate her petitions in the ten weeks preceding the primary, to be held the third Tuesday in May, effectively forfeiting nearly two post-primary weeks that she otherwise would have to secure the tens of thousands of signatures in support of her True Blue nomination to ensure a place on the general ballot as that party's nominee. Moreover, at least thirty days before the primary, she must renounce her Democratic voter registration, which will do her no favors in her write-in campaign for that party's nomination, especially against a formidable candidate like Robert.

Knowing all of this in advance, Roberta faces a wrenching choice. If she pursues the True Blue nomination, not only does she risk failing to secure the Democratic nomination by write-in, where she might have prevailed had she appeared on the ballot, but she also risks failing in her effort to secure the requisite signatures in a somewhat shorter period of time than the General Assembly has seen fit to provide political-body candidates. Moreover, if she succeeds in her write-in campaign, but fails to collect sufficient signatures in advance of the primary, she simultaneously will forfeit her eligibility to secure the nomination of the True Blue party, deny the True Blue party the ability to nominate its first-choice candidate, and leave True Blue with less than two weeks to collect signatures for a second-choice nominee, very likely resulting in True Blue fielding no nominee at all. And even if True Blue somehow manages to nominate a second-choice candidate, those among its members who prefer Roberta in principle will be forced to choose between supporting their preferred candidate or their preferred party in the general election.

Although Robert and Roberta each seek to utilize the [write-in] exception, and theoretically may do so, the decisions and logistical challenges that Roberta faces manifestly are more onerous than those Robert confronts. The differences arise directly from the statutory distinctions between the nomination requirements that apply to major parties and those that apply to minor parties, which work in concert with the [write-in] exception to impose a substantial practical disadvantage upon candidates seeking minor party-major party cross-nominations.

Concurring and Dissenting Opinion of Wecht, J., at 12-15 (footnotes omitted).

Indeed, historical research reveals that, although there was robust activity by third-parties (including, at one time, each of the then-non-dominant Democratic and Republican parties) in American politics, in the late 19th- and early 20th- century, Republicans in the Midwest, and, later, major-party politicians in Pennsylvania and throughout the nation adopted the anti-fusion provisions for the very purpose of deflating those interested in third parties, to the degree that one Detroit newspaper wryly referred to then-pending anti-fusion legislation as “the law providing for the extinction and effacement of all parties but Democratic and Republican.” Peter H. Argersinger, “A Place on the Ballot”: Fusion Politics and Antifusion Laws, 85 Amer. Hist. Rev. 287, 304 (1980).

Second, although the Court's narrow view of vote dilution is not inherently incorrect, it is a contraction of its conception of the term, nary a year and a half earlier, inLeague of Women Voters v. Commonwealth, 178 A.2d 737 (Pa. 2018) (“League”). The Court in League, in an opinion authored by Justice Debra Todd, and joined by Justices Donohue, Dougherty, and Wecht, conducted a thoroughgoing review of the history of the right to free and equal elections, tracing its roots back to political struggles between geographic, religious, political, and even socioeconomic sects using various legal mechanisms to establish their political dominance, see League, 178 A.2d at 804-09, before explaining that the establishment and constitutionalization of the right to free and equal elections was meant to put an end to those sectarian power struggles:

When viewed against the backdrop of the intense and seemingly unending regional, ideological, and sectarian strife detailed above, which bitterly divided the people of various regions of our state, this provision must be understood then as a salutary effort by the learned delegates to the 1790 [constitutional] convention to end, once and for all, the primary cause of popular dissatisfaction which undermined the governance of Pennsylvania: namely, the dilution of the right of the people of this Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they lived, and the religious and political beliefs to which they adhered.

Id. at 808-09. The court went on to hold that General Assembly's 2011 Congressional Redistricting Plan, a partisan gerrymander which created Congressional districts maximizing the power of Republicans and minimizing the power of Democrats in the Congressional delegation as a whole, violated the right to free and equal elections.

In this author's view, the constructions of “vote dilution” in WFP and League are incongruous. Although the WFP majority certainly abided by League's language, its opinion sharply retreats from its substance: that a currently dominant political group may not use the law to solidify its political power. Indeed, had the WFP majority's conception of vote dilution prevailed in League, one readily imagines that the 2011 Plan would have passed constitutional muster: nothing in the 2011 Plan prevented any voter from selecting his or her candidate of choice in the general election, and, frankly, the 2011 Plan's essentially statistical methods of vote dilution would appear significantly more attenuated than those the anti-fusion provisions employ. Indeed, Justice Mundy advocated as much in her League dissent. See id. at 834 (Mundy, J., dissenting).

It will be interesting, not to mention important, to see how this line of jurisprudence develops. On the one hand, if the WFP majority's interpretation of vote dilution prevails, it will have to deal with League in the upcoming 2021-round of redistricting challenges and face (new) charges from Harrisburg Republicans that League was merely meant to help Democrats in the 2018 midterm Congressional elections. On the other hand, if League is revived, it will have to do better to apply it faithfully in what will likely be innumerable challenges to election provisions from divergent signature requirements to the major/minor-party framework itself designed to protect major parties from third-party involvement.

Neither option is likely to please Harrisburg, but the latter just might please those who drafted Pennsylvania's Constitution.

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.

August 2019 Docket Review

This month, the Court issued 7 precedential opinions (linked below) and 2 orders granting allocatur.

On the opinion side, the Court continues on its course of striking a more balanced approach to criminal procedural rights and tort liability than its earlier, more conservative iterations. An interesting feature of its movement in this regard is that it is incremental and a bit coltish: for example, although Foster and Feleccia resolve theretofore unclear questions in favor of probationers' procedural rights and negligence liability, respectively, both occasioned numerous concurring opinions that give practitioners and future Courts plenty of room to reexamine them.

One reason may be the Court's Internal Operating Procedures, which provide that the votes of 3 Justices are sufficient to grant a discretionary appeal, as compared to the 4 necessary to create a holding and dispose of the appeal. In practice, this means that 3 Justices motivated to decide a question or reconsider an earlier decision are, to some degree, able to force the issue without the support of a majority of Justices, which, in turn, sometimes motivates other Justices to author narrower responsive opinions.

Another reason may be a matter of the Justices' particular judicial philosophies. Although a court of last resort needs a majority legal holding for its decision to have meaningful effect beyond the immediate case, many of the Justices appear to favor, at least at present, expressing a vision of the law over forming consensus. It should come as no surprise that this approach is more appealing to Justices who are likely to have a longer tenure on the Court, and, thus, may see the fruits of the jurisprudential seeds they are now planting.

On the allocatur side, the Court's grant of allocatur in Woodford looks like another indicator that it is winnowing away at administrative agency deference. (For more examples of this trend and possible motivations, check out our July 2019 Docket Review.) Woodford appears to pit two longstanding canons of statutory interpretation — the rule of lenity and administrative deference — against one another, and it is difficult to see how the rule of lenity, which has its underpinning in the right to notice and due process — can be subordinated to administrative deference, which is largely a prudential doctrine. Depending on how you view it, this erosion of administrative deference either fights industry- and political- capture of administrative agencies in favor of the rule of law, or weakens democratic in favor of judicial power. (For what it's worth, I tend to favor the former view, particularly in a state where electoral demographics increasingly favor political outcomes consistent with the current Court's likely course, and where, in any event, the Justices are themselves elected.) Either way, it will be interesting to see how the Court balances its role as the arbiter of the law with its lack of expertise in, for example, environmental science. Stay tuned.

Precedential Opinions

• Commonwealth v. Foster, J-6-2019 (Majority Opinion by Donohue, J.) (holding that probationer's conduct in posting photographs suggesting he was selling drugs was insufficient to warrant probation revocation because it was neither a violation of a specific probation term nor a new offense)

  • See also Concurring Opinion by Todd, J.

  • See also Concurring Opinion by Dougherty, J.

• Commonwealth v. Thomas, J-85-2018 (Majority Opinion by Dougherty, J.) (affirming judgment of sentence in death penalty case involving issues of the defendant's competency to stand trial, the trial court's denial of a request for an eyewitness-identification expert, and the admission of evidence of his potential deportation, and the constitutionality of Pennsylvania's death penalty statute in light of recent changes in the interpretation of the right to trial by jury)

  • See also Concurring Opinion by Wecht, J.

• In re: Petition for Enforcement of Subpoenas, J-98-2018 (Majority Opinion by Wecht, J.) (holding Commonwealth Court lacked jurisdiction to entertain physician's challenge to State Board of Medicine order denying enforcement of subpoenas, reasoning it lacked appellate jurisdiction because of the interlocutory nature of the order and that it lacked original jurisdiction because the challenge was not an action against a Commonwealth agency)

  • See also Concurring Opinion by Dougherty, J.

  • See also Concurring Opinion by Mundy, J.

  • See also Dissenting Opinion by Saylor, C.J.

• Safe Auto Ins. Co. v. Oriental-Guillermo, J-104-2018 (Majority Opinion by Todd, J.) (holding that unlisted resident driver exclusions in auto insurance policies are enforceable)

  • See also Concurring Opinion by Wecht, J.

• Feleccia v. Lackawanna College, J-96-2018 (Majority Opinion by Dougherty, C.J.) (holding college assumed duty to provide treatment from certified athletic trainers during athletic practice and that an athletic waiver was unenforceable as it pertained to claims of gross negligence)

  • See also Concurring and Dissenting Opinion by Saylor, C.J.

  • See also Concurring and Dissenting Opinion by Wecht, J.

• PPL Elec. Util. Corp. v. City of Lancaster, J-8A&B-2019 (Opinion by Wecht, J.) (holding that the Public Utilities Code preempts numerous Lancaster ordinances governing and fees assessed upon state-regulated utilities using Lancaster rights-of-way)

• Commonwealth v. Maguire, 41 MAP 2018 (Lead Opinion by Baer, J.) (holding that more stringent guidelines applicable to ordinary vehicle checkpoints do not apply, and less stringent requirements do apply, to statutorily-authorized commercial truck checkpoints)

  • See also Concurring Opinion by Saylor, C.J.

  • See also Concurring and Dissenting Opinion by Wecht, J.

Allocatur Grants

• Sivick v. State Ethics Commn., 118 MAL 2019 (granting review to determine whether, under the Public Official and Employee Ethics Act, (1) the State Ethics Commission may order a public official or employee to pay restitution for an unethically obtained financial benefit to his or her immediate family members and (2) whether, under the Act, a public employee's administration of payroll records of employees including his or her family member constitutes a conflict of interest).

• Woodford v. Pa. Ins. Dept., 172 MAL 2019 (granting review to consider (1) whether the Commonwealth Court erred in applying principles of administrative-agency deference, rather than the rule of lenity, to a penal insurance statute; and (2) whether the Commonwealth Court erred in holding that the petitioners were not entitled to summary judgment where their opponents did not respond to their motion therefor)

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.

July 2019 Docket Review

This month, the Court issued 15 precedential opinions (linked below) and 6 orders granting allocatur.

On the opinion side, although, as I mentioned last month, the “new” Court has been somewhat ambivalent in its attitudes toward the judicial role, with some Justices preferring the prudence (or, depending on how you view it, trepidity) of judicial minimalism and broad deference to the legislature, lower courts, and administrative agencies, and others preferring the boldness (or, depending on how you view it, folly) of a more powerful interpretive and adjudicative role, those in the latter camp are making significant strides. This is particularly so in cases involving fairly dry subject matter.

For example, in General Motors, LLC, the Court is ostensibly discussing issues regarding auto manufacturer's reimbursements to auto dealers for warranty repairs. If my previous sentence did not put you to sleep, however, you'll be glad to know that the major feature of the opinion is its discussion of deference to agencies. Indeed, the opinion, joined by 5 other Justices, suggests several bases for abandoning deference – (1) where an agency's interpretation is not “longstanding”; (2) where an agency's interpretation does not derive from its expertise; (3) arguably, agency bias; and (4) where the deference is outweighed by the Court's own independent analysis – and Justice Mundy, in dissent, advocates a reconsideration of deference to administrative agencies writ large.

Similarly, in Pa. Restaurant and Lodging Assn., the Court's decision hinges on the not particularly riveting question of whether the two local ordinances at issue – a sick leave ordinance and a disaster preparedness ordinance – are not subject to state preemption of local regulation of businesses because they are “expressly” authorized by other state law. More (judicially) conservative Justices would likely feel compelled to find some guiding principle – such as a clear statement rule requiring that a state statute specifically indicate that localities may, notwithstanding the preemption provisions, enact measures governing a particular subject matter – and leave it to lower courts to apply it. Yet, the Court here evidences that it is comfortable exercising its judgment in matters of degree, not just in this case, but the many it has hereby invited.

Whether the complexity and relative dryness of cases in which the Court is assuming an emboldened interpretive role is a coincidence remains to be seen, but it is not difficult to imagine that the factual and legal context makes the migration to a strong judicial role less alarming.

The Court's bolder approach may derive from any number of views: skepticism as to the degree to which legislatures, lower courts, and/or administrative agencies are truly deliberative, or, worse, concern that they have been politically or industry- captured; and the (remember, elected) Court's view as to its own political mandate spring to mind. And while avoiding capture in favor of deliberation may be a laudable goal, the approach does come with its own dangers, principally that the Court may find itself not only in over its head (adjudicating, for example, complex issues of environmental policy), but also underwater in a deluge of cases its approach invites. It will be interesting to see how the Court evolves and balances these concerns (or does not) over the next several years.

On the allocatur side, the Court's order in Stahley, to consider whether its decision in Batts is retroactive, is particularly noteworthy. Years ago, Pennsylvania led the country in the number of juvenile offenders serving mandatory sentences of life imprisonment without the possibility of parole, and, after the United States Supreme Court issued its decisions in Miller v. Alabama, 567 U.S. 460 (2012) (holding that juvenile offenders are entitled to individualized sentencing determinations based on myriad factors and that the application of such mandatory sentences constituted cruel and unusual punishment), and Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718 (2016) (holding Miller applied retroactively), all of those offenders became eligible for individualized resentencing. Yet, from Montgomery to the Court's decision in Batts, dozens were resentenced to disparate terms ranging from time-served to 42.5 years to life imprisonment, without certain necessary guidance as to how those re-sentencings were to proceed. (Additionally, as a side note, many of those offenders were plagued by ineffective assistance of counsel that likely led to higher-than-otherwise-likely minimum sentences.) Batts provided that guidance, but was cold comfort for those already resentenced to lengthy prison terms. If Stahley is successful and the Court deems Batts to be retroactive, it seems likely that each of those petitioners will be entitled to a new, re-re-sentencing hearing and, potentially, significantly lower minimum sentences.

Precedential Opinions

• General Motors, LLC v. Bureau of Profl. & Occupational Affairs, J-108-2019 (Majority Opinion by Saylor, C.J.) (holding that auto manufacturers may condition their provision of more favorable reimbursements for auto-dealer-performed warranty repairs no the dealers' waiver of statutory rights to other reimbursements under the Board of Vehicles Act, and interpreting a provision of that Act as providing that auto manufacturers may not impose surcharges on dealers who have exercised their right to certain reimbursement rates for parts, or labor, but not both).

  • See also Concurring and Dissenting Opinion by Mundy, J.

• In re: Appeal of the Board of Commissioners of Cheltenham Twp., J-89-2018 (Majority Opinion by Baer, J.) (holding that a provision of the Municipalities Planning Code forbidding retroactive application of new zoning laws to then-pending land-development applications also applies to ancillary zoning applications).

  • See also Dissenting Opinion by Wecht, J.;

• S & H Transp., Inc. v. City of York, J-99-2018 (Majority Opinion by Todd, J.) (holding that a freight broker's receipts passed onto freight carriers are not subject to the City of York's Business Privilege and Mercantile Tax).

  • See also Concurring Opinion by Saylor, C.J.;

  • See also Concurring and Dissenting Opinion by Baer, J.;

  • See also Dissenting Opinion by Dougherty, J.

• Commonwealth v. Cousins, J-9-2019 (Majority Opinion by Todd, J.) (interpreting repeat-drug-offender sentencing provisions apply to virtually all drug offenses).

• Menkowitz v. Peerless Pubs., Inc., J-13-2019 (Majority Opinion by Donohue, J.) (holding the Superior Court failed to apply the appropriate standard of review and appropriate causation analysis in a defamation action).

• Commonwealth v. Bell, J-103-2018 (Majority Opinion by Dougherty, J.) (holding statute permitting the Commonwealth to introduce evidence of an alleged DUI offender's failure to submit to chemical testing for alcohol does not violate the federal or state constitutional prohibitions on unreasonable searches and seizures)

  • See also Concurring Opinion by Mundy, J.;

  • See also Dissenting Opinion by Wecht, J.

• Navarro v. Pa. State Police, J-38-2019 (Majority Opinion by Dougherty, J.) (holding that the denial of applications for return of firearms pursuant to federal statute prohibiting persons with certain convictions from possessing firearms which have moved in interstate or foreign commerce must be supported by evidence that the subject firearm moved in interstate or foreign commerce).

• In re: Petition of Adams, 9 MAP 2018 (Majority Opinion by Mundy, J.) (holding that landowners seeking to open a private road pursuant to the Private Road Act must establish necessity of opening the road under the current, rather than a future or proposed, use of the property).

  • See also Concurring Opinion by Wecht, J.

• Exeter Twp. v. Pa. Lab. Relations Bd., J-4A&B-2019 (Majority Opinion by Mundy, J.) (holding that the a zoning officer is not ipso facto a management-level employee for purposes of the Public Employee Relations Act).

• In re: Return of Seized Property of Lackawanna Cnty., 93 MM 2018 (Majority Opinion by Dougherty, J.) (holding that a supervising judge of a statewide investigating grand juries is authorized to issue related search warrants throughout the grand jury's jurisdiction and to adjudicate motions for return of property seized pursuant to such warrants).

  • See also Dissenting Opinion by Donohue, J.

• Commonwealth v. King, 13 EAP 2018 (Majority Opinion by Baer, J.) (affirming a PCRA court's order forbidding the Commonwealth from privately interviewing the petitioner's counsel, citing the court's discretion in discovery matters and certain case-specific facts and arguments).

  • See also Concurring Opinion by Donohue, J.;

  • See also Concurring Opinion by Mundy, J.,;

  • See also Dissenting Opinion by Dougherty, J.

• DeForte v. Borough of Worthington, 24 WAP 2018 (Majority Opinion by Saylor, C.J.) (answering Third Circuit's certified questions by determing that whether a police department is subject to the civil service protections of the Borough Code, applicable to departments of three or greater, or the Tenure Act, applicable to departments of two or fewer, is to be determined by the number of officers with “normal working hours”).

• Commonwealth v. Jones, 15 WAP 2018 (Majority Opinion by Saylor, C.J.) (holding that a petitioner's trial counsel's failure to seek and obtain an alibi instruction did not cause prejudice, arguably limiting earlier decisions emphasizing a near per se rule that the failure to seek and obtain a warranted alibi instruction does cause prejudice).

  • See alsoConcurring Opinion by Todd, J.

• Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educational Support Personnel Assn., J-30-2019 (Majority Opinion by Donohue, J.) (holding that a grievance arbitration award satisfied the “essence test” in that it derived from the subject collective bargaining agreement, the arbitrator's interpretation was rational, and the award did not violate a dominant public policy).

  • See also Concurring Opinion by Todd, J.

• Pa. Restaurant and Lodging Assn. v. City of Pittsburgh, J 72A-H-2018 (Majority Opinion by Wecht, J.) (holding that a Pittsburgh statute requiring employers to provide employees sick leave, which would otherwise have been preempted by a state statute forbidding localities from regulating business absent “express” authorization, was authorized by the Disease Prevention and Control Law of 1955, but that another Pittsburgh Statute, requiring building owners to, inter alia, conduct disaster preparedness education, was preempted by the state statute notwithstanding the Emergency Management Services Code).

  • See also Concurring and Dissenting Opinion by Saylor, C.J.;

  • See also Concurring and Dissenting Opinion by Baer, J.;

  • See also Concurring and Dissenting Opinion by Dougherty, J.

Allocatur Grants

• Renner v. Court of Common Pleas of Lehigh Cnty., 851 MAL 2018 (granting review to consider whether the Pennsylvania Human Relations Law applies to the Unified Judicial System and its employees, and, if so, whether such application violates the separation of powers even if the Pennsylvania Human Relations Commission does not investigate or adjudicate complaints)

• Northern Berks Regional Police Commn. v. Berks Cnty. Fraternal Order of Police, 797 MAL 2018 (granting review to consider whether the lower court improperly relied on speculation and to consider broadening the scope of review for police and firefighter collective bargaining arbitrations)

• Commonwealth v. Stahley, 39 MAL 2019 (granting review to consider whether the Court's decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), governing re-sentencing of juvenile offenders previously unconstitutionally sentenced to life imprisonment, applies retroactively)

• In re: Consolidated Appeals of Chester-Upland School District, et al., 54-56 MAL 2019 (granting review of whether a taxing authority may consider income derived from easements in favor of billboard companies in assessing a property's value despite a statutory exclusion for “signs and sign structures”)

• Pittsburgh Logistics Systems, Inc., v. Beemac Trucking, LLC, et al., 47 WAL 2019 (granting review of whether no-hire provisions between business entities are enforceable)

• Commonwealth v. Nevels, 49 WAL 2019 (granting review of whether a person may be convicted for retaliation against a “witness, victim, or a party in a civil matter,” where he retaliated against a former or future witness in a criminal matter).

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.

June 2019 Docket Review

This month, the Court issued 7 precedential opinions (linked below) and 8 orders granting allocatur.

On the opinion side, a few insights. Now two years into its current composition, the Court is somewhat ambivalent in its orientation toward precedent. A narrow, but fairly consistent majority of the Court (although sometimes a different majority, depending on the issue) appears to favor a conservative, incremental approach to glossing upon or re-evaluating the Court's prior decisions, to the dismay of at least a few Justices who would prefer the Court take a more liberal, bolder interpretive approach. The Court's decision in Working Families Party , which, in my view, actually restricts its broad construction of the Free and Equal Elections Clause of the Pennsylvania Constitution as announced in last year's redistricting case, is probably the best example of this phenomenon, and its decision in Mitchell, which declines to expand earlier doctrine preventing evidence of informed consent in personal injury actions, is another. It's a meta-principle to keep an eye on, both as newer Justices further develop their jurisprudence of precedent, and as more experienced Justices react, and, in the longer term, retire.

Second, the Court this month had some difficulty reviewing the issues it wants to review: in HIKO, the court granted review of an Excessive Fines issue only to find it waived for lack of preservation, and in Shaffer, it granted review of an abandonment-of-privacy-interest issue only to resolve the case on the basis of private-search doctrine. Although the proverbial switcheroos could be attributable to something as simple as the Court missing waiver in its initial review of the case, it could also point to difficulties in building majority expressions of law or judicial preference to provide a gloss on one doctrine over the other.

Either way, and notably, both led to derivative disputes about meta-principles of appellate law: (1) in HIKO, the majority's reliance on waiver doctrine was criticized as outside the scope of the Court's grant of allocatur; and (2) in Shaffer, the majority's reliance on the principle that a court may affirm a lower court on any basis supported by the record was criticized as unfair. These dispositions could appear somewhat contradictory from a litigant's perspective: the majority in HIKO refused to address an issue based on waiver doctrine, which is rooted in the notion that appellate courts should not review claims unanticipated and undeveloped by litigants and trial courts, whereas the majority in Shaffer took great pains to do exactly that.

On the allocatur side, the Court appears increasingly willing to review issues of fairness to civil plaintiffs and criminal defendants. Indeed, 3 of its grants of allocatur involve tort law – Bourgeois, Nicole B., and Harrison – and 4 deal with criminal justice reform: Copenhaver involves arguably overzealous use of force (in the form of arrest); Davis and Lehman involve arguably unfair imposition of costs on typically-already unable-to-pay criminal offenders; and Moore would appear to be signaling an interest in reframing or reconsidering roughly two decades of law that route virtually all post-conviction actions through the time-bar restrictions of the Post Conviction Relief Act.

Precedential Opinions:

• Working Families Party v. Commonwealth, 34 EAP 2017 (Majority Opinion by Mundy, J.) (holding that the “anti-fusion” provisions of the Election Code, which prohibit candidates who have formally sought one political party's nomination from seeking another's, but which allow them to wage write-in campaigns for major party nominations, but not third-party nominations, do not violate the Equal Protection Clause of the United States Constitution, the Free and Equal Elections Clause of the Pennsylvania Constitution, or the Free Speech and Association Clauses of the Pennsylvania Constitution principally because they apply equally to all candidates and are justified by the fact that, absent the provisions, because another provision of the Election Code requires that a single checkbox appear for each candidate on the ballot, the Commonwealth would unable to determine whether a vote for a candidate is in his or her capacity as one party's candidate or the other's, and therefore, unable to determine the parties' support and status as a major or third party in subsequent elections); see also Concurring and Dissenting Opinion by Todd, J.; Concurring and Dissenting Opinion by Wecht, J..

• HIKO Energy v. Pennsylvania Pub. Util. Commn., 39 EAP 2017 (Majority Opinion by Mundy, J.) (holding that civil penalties imposed upon an electricity supplier for intentionally overcharging consumers during the 2014 “polar vortex” were not imposed as punishment for litigating their validity; and that the penalties were supported by substantial evidence); see also Dissenting Opinion by Donohue, J.

• Commonwealth v. Shaffer, 16 WAP 2018 (Majority Opinion by Baer, J.) (holding that a computer owner who furnishes his computer to a third-party repairer, who unilaterally searches the computer and finds child pornography, the repairer's search is a “private search” that does not implicate the Fourth Amendment, and justifies police in conducting a subsequent identical search); see also Concurring and Dissenting Opinion by Wecht, J.; Dissenting Opinion by Saylor, C.J..

• Mitchell v. Shikora, 55 WAP 2017 (Majority Opinion by Todd, J.) (holding that although evidence of a patient's consent to the risks and complications of surgery is irrelevant in a medical negligence action, evidence of the risks themselves is relevant to the standard of care for a procedure and may be admitted in such actions, subject to other applicable evidentiary principles); see also Concurring Opinion by Wecht, J.; Concurring and Dissenting Opinion by Donohue, J..

• Bousamra, v. Excela Health, 5 WAP 2018 (Majority Opinion by Mundy, J.) (holding that the attorney work-product doctrine is not waived by disclosure to third parties unless the work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that it will be transmitted to an adversary); see also Concurring Opinion by Donohue, J.; Concurring Opinion by Wecht, J..

• Commonwealth v. Santiago, 1 EAP 2018 (Majority Opinion by Todd, J.) (holding that a police officer's independent observations of a defendant purged the taint of a subsequent warrantless search of his mobile phone that would otherwise have invalidated a subsequent in-court identification); see also Dissenting Opinion by Wecht, J..

• In re: Estate of Easterday, 15 MAP 2018 (Majority Opinion by Donohue, J.) (holding that the failure to comply with certain procedural rules for establishing grounds for divorce precludes the application of a provision of the Probates, Estates, and Fiduciaries Code that provides that the establishment of grounds for divorce revokes a decedent's designation of a spouse as a life insurance beneficiary; holding that ERISA does not preempt a state law breach of contract claim to recover funds that were paid pursuant to an ERISA-qualified employee benefit plan); see also Concurring and Dissenting Opinion by Wecht, J..

Allocatur Grants:

• Commonwealth v. Moore, 556 EAL 2018 (granting review of construction of petition for writ of habeas corpus as a petition for relief pursuant to the Post Conviction Relief Act)

• Commonwealth v. Weir, 14 WAL 2019 (granting review of whether a claim that the amount of restitution is speculative and unsupported is a nonwaivable challenge to the legality of sentence)

• Bourgeois v. Snow Time, Inc., 769 MAL 2018 (granting review of potential legal and evidentiary errors in a personal injury action).

• Commonwealth v. Copenhaver, 13 MAP 2019 (granting review of whether driving with an expired registration tag constitutes a “breach of the peace” and therefore permits an arrest).

• Commonwealth v. Davis, 52 MAL 2019 & Commonwealth v. Lehman, 69 MAL 2019 (granting review of whether the costs of sentencing are “costs of prosecution and trial” that may be imposed upon convicted offenders).

• Nicole B. v. School Dist. of Phila., 13 EAL 2019 (granting review of whether a statute providing that minority tolls statutes of limitations and/or a statute permitting equitable tolling of claims pursuant to the Pennsylvania Human Relations Act apply to minors' complaints to the Pennsylvania Human Relations Commission)

• Harrison v. Health Network Laboratories, 24 MAL 2019 (granting review of whether considering a whistleblower of violations of the Pennsylvania Human Relations Act must bring any ensuing claim of retaliation for whistleblowing via the Act).

• Gregg v. Ameriprise Financial, Inc., 490 WAL 2018 (granting review of whether the Superior Court too broadly interpreted the “catch-all” provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law to non-deceptive, non-fraudulent conduct).

Disclaimer: The information provided on this blog is for informational and research purposes only and should not be construed as establishing a legal representational relationship between you and its author, or Woods Law Offices PLLC, in any way. If you have a legal problem, you should contact an attorney to discuss establishing such a relationship and obtaining such advice.

Welcome to SCOPABlog

Hi, everyone! Corrie here.

Some of you know that I spent roughly six years of my career as an attorney for a Justice of the Pennsylvania Supreme Court. It was an honor, not only because I came to love the Court's history and to admire the Court at its best (during my time there, the Court issued decisions revolutionizing several areas of law, in my view, for the better), but also because I had the privilege to spend my days working on difficult, important, legal questions for judges who were dedicated to deciding them deliberately, fairly, and honestly.

That's why when I left my service with the Court to start Woods Law Offices, and consequently spent less time pondering thorny issues of constitutional jurisprudence and more time pondering billing, I couldn't help but miss the work. Also, I was shocked to see that there is, at present, no consistently updated blog covering the Court and its decisions.

That's why I'm proud to announce the launch of SCOPABlog, dedicated to covering the Court and its caseload. In addition to basic coverage of the Court's docket, I'll be sharing features authored by myself and guests on particularly interesting cases before the Court.

As we continue developing the blog, I look forward to hearing your comments and suggestions, and, hopefully, to your contributions. In the meantime, please enjoy.

Yours,

C