December 2021
Justin Strawser, DA Challenges Leschinskie’s Ability to Serve as Shamokin Councilman, The Daily Item (Dec. 30, 2021), Justin Strawser writes about a court hearing that will be held hours before Joseph Leschinskie Jr. is sworn into city council. Northumberland District Attorney, Tony Matulewicz, contends that Article II, Section 7 of the Pennsylvania Constitution prevents Leschinskie from holding elected office because of his past felony conviction. Matulewicz is asking the court to disqualify Leschinskie and declare the seat vacant.
Anthony Salamone, Elected Constable Position in Doubt as Judge Puts on the Brakes, Allentown Winner Says He has No Plans to be Sworn in ELECTION 2021, The Tribune Publishing (Dec. 29, 2021), Anthony Salamone discusses Nicolas Douglas’ constable election victory. Allentown District Attorney Steven Luska has petitioned the court to bar Douglas from taking office, arguing that Article II, Section 7 of the Pennsylvania Constitution bars him from holding office because of his past criminal convictions.
Paula Reed Ward, Pa. Court Rules Against Former Pittsburgh Councilwoman Darlene Harris in Campaign Finance Case, Tribune-Review (Dec. 28, 2021), Paula Reed Ward discusses the Commonwealth Court’s ruling, which held that a $4,150 fine levied against former Pittsburgh City Councilwoman Darlene Harris was valid under the City’s Home Rule Charter. Harris’ attorney plans to appeal the decision, arguing that the City’s rule is preempted and that the facts of the case warrant “serious review” under Article VII, Section 6 of the Pennsylvania Constitution.
Institute for Justice, Pennsylvania Hunting Clubs Challenge Warrantless Searches of Private Land, State News Service (Dec. 16, 2021), the Institute for Justice released a statement regarding its challenge to the Pennsylvania Supreme Court’s 2007 ruling in Russo that held warrantless searches of private “open fields” are constitutional. Punxsutawney and Pitch Pine hunting club are suing under Article I, Section 8 of the Pennsylvania Constitution, arguing that individuals have a reasonable expectation of privacy and private land and the statutes authorizing warrantless searches of their land are unconstitutional.
State House Republicans, Pa. House Republicans: Bill to Impose Term Limits on Judges, Justices Passes Committee, Targeted News Service (Dec. 14, 2021), State House Republicans issued a statement regarding House Bill 1880, a proposed constitutional amendment that would place term limits on judges and justices serving on state appellate courts. The proposed amendment would limit justices of the Pennsylvania Supreme Court, Commonwealth Court, and Superior Court to two terms or a total of 20 years on the bench. The bill was amended in committee to limit judges to two terms or 20 years on each court on which they serve. The bill also stipulates that any justices currently serving who has exceeded the new limit would be permitted to complete their term.
Zack Hoopes, Conduct Board Suggests Barring Placey from Future Judicial Service, The Sentinel (Dec. 10, 2021), Zack Hopes writes that the former Cumberland County Court of Common Pleas Judge Thomas Placey may be barred from judicial service as a result of his constitutional ethics violations. Placey stepped down from the court on June 1, 2021, as part of an agreement to withdraw the counts against him that invoked the judicial disrepute clause of the Pennsylvania Constitution. The Pennsylvania Court of Judicial Discipline will now deliberate on what action to take against Placey.
Max Marin and Julia Terruso, How the Mississippi Supreme Court Case Could Impact Abortion Access in Pa. and N.J., (Dec. 1, 2021), Max Marin and Julia Terruso discuss the implications if the Supreme Court upholds Mississippi’s 15-week abortion ban. Currently, Pennsylvania law bans abortions around 24 weeks. In the case of a Roe reversal, the legislature could pass a law restricting abortion much earlier in pregnancy. Further, Republican lawmakers in both the Senate and House are seeking support for constitutional amendments that would clarify there is “no right to an abortion or abortion funding within Pennsylvania’s constitution.”
November 2021
State House Democrats, Solomon Introduces Legislation Calling for Lawmakers to Resign Upon Conviction, State News Service (Nov. 22, 2021), State House Democrats released information regarding a proposed amendment to the Pennsylvania Constitution which would require lawmakers to step down upon being convicted of a crime. The proposed amendment comes on the heels of the conviction of Councilmember Bobby Hennon and labor leader John Doughtery on federal corruption charges.
State Senate Republicans, Pennsylvania State Senate Langerholc Legislation Defending Second Amendment Passes Senate, Targeted News Service (Nov. 10, 2021), State Senate Republicans released a statement announcing that Senate Bill 448 has been approved by the chamber. The legislation would allow for individuals or organizations to sue a county or municipality that implements a local firearm ordinance in violation of state law, allowing for adversely affected individuals to seek relief and damages. Lastly, the legislation places the burden on the municipality to defend its actions instead of placing the burden on the individual.
Joshua Byers, Spotlight on School Funding: Greater Johnstown’s Arcurio set to Testify at State Trial, The Tribune-Democrat (Nov. 10, 2021), Joshua Byer writes about a state trial focusing on whether the state’s funding system violated the Pennsylvania Constitution, which says the general assembly “shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.” The suit claims that state officials have known for a decade that Pennsylvania’s schools are “badly underfunded.”
State House Republicans, People Have Right to Restore Balance in Constitution, Speaker Says, State News Service (Nov. 9, 2021), House Republicans released information regarding proposed amendments to the Pennsylvania Constitution. The first proposal would amend Article IV to limit any executive order or proclamation issued by the governor, to 21 days unless extended by concurrent resolution of the General Assembly. The second proposal would Amend Article III, Section 9, to exempt the disapproval of a regulation by the General Assembly from the presentment requirement for the governor’s approval or disapproval. The constitutional amendment process requires passage in both chambers in consecutive legislative sessions, followed by a ballot referendum.
Staff Writer, Fostering Fairness in Pa.’s Election Operations, Standard-Speaker (Nov. 6, 2021), a Staff Writer reports on a hearing held by the Senate Special Committee on Election Integrity bringing to light that, in addition to using taxpayer dollars, Philadelphia County received a private grant of funds for the election. The article goes on to claim that Article I, Section 5 of the Pennsylvania Constitution prohibits the use of private funding to carry out elections because the government is entirely tasked with the process of carrying out an election.
October 2021
The American Civil Liberties Union of Pennsylvania, ACLU Files Lawsuit Challenging Pa. County’s Abusive Probation and Parole Detention System, Targeted News Service (Oct. 27, 2021), The Pennsylvania ACLU filed a class-action lawsuit challenging the unconstitutional incarceration of people facing probation and parole revocation proceedings in Montgomery County. The lawsuit alleges that the county violates the Pennsylvania Constitution by incarcerating nearly every person accused of violating the conditions of their supervision for months until their revocation hearing. The ACLU claims this incarceration deprives these individuals of basic due process by regularly failing to assess whether detention prior to the revocation hearing is necessary in the first place, then denying them “prompt” revocation hearings, as required by the Pennsylvania Constitution.
The Center for Constitutional Rights, Center for Constitutional Rights: Pennsylvania Supreme Court to Weigh in on Death-By-Incarceration Lawsuit, Targeted News Service (Oct. 26, 2021), The Center for Constitutional Rights issued a news release pertaining to a lawsuit brought by six people serving mandatory sentences of life without parole. The lawsuit is challenging the automatic sentence of life without parole for those found guilty of felony murder. In Pennsylvania, any participant in a felony that leads to death, regardless of involvement or intent, may be found guilty of felony murder. Scott v. PA Board of Probation and Parole, filed in July 2020, is the first case of its kind in the country. It argues that mandatory life sentences without the possibility of parole for those who did not kill or intend to kill do not serve any legitimate governmental interest and are illegally cruel under the Pennsylvania constitution.
Nicholas Malfitano, Commonwealth Court Gives Go-Ahead to Petition Seeking to Prohibit Use of ExpressVote XL Electronic Voting Machines, Pennsylvania Record (Oct. 26, 2021), Nicholas Malfitano discusses current legal action to prohibit electronic voting machines from being used in Northampton County and other Pennsylvania counties. Non-profit groups National Election Defense Coalition and Citizens for Better Elections, non-partisan organizations pursuing greater election security, and a dozen Pennsylvania voters filed a petition challenging the 2018 decision to allow the ExpressVote XL to be used for electronic voting statewide in Pennsylvania. The petition argued that the state should prohibit use of the ExpressVote XL machine, on the grounds that it is insecure, unreliable, inaccessible to users with disabilities, and not remotely compliant with state ballot requirements, in violation of multiple provisions of the Pennsylvania Election Code and of voters’ rights under the Pennsylvania Constitution.
State Senate Republicans, Stefano Introduces Bill to Expand Castle Doctrine, States News Service (Oct. 21, 2021), Senate Republican Pat Stefano introduced legislation that would extend the self-defense protections of the castle doctrine beyond an individual’s dwelling and up to her property line.
Planned Parenthood Federation of America, Litigation Challenging Pennsylvania’s Medicaid Ban on Abortion Coverage Heads to State Supreme Court, States News Service (Oct. 13, 2021), Planned Parenthood has filed a lawsuit to urge the Pennsylvania Supreme Court to join 17 other states and allow abortion coverage under Medicaid. Planned Parenthood’s central claim is that the state’s Medicaid abortion coverage ban violates the Equal Rights Amendment and equal protection provisions of the Pennsylvania Constitution.
Ron Southwick, Citing Voter Privacy, Civil Rights Groups Aim to Block Pa. Lawmakers’ Election Subpoena, Patriot-News (Oct. 5, 2021), Ron Southwick writes that multiple civil rights groups have joined Attorney General Josh Shapiro’s lawsuit to block Senate Republicans Subpoena of voter records from the 2020 elections. This latest action argues that failure to protect citizens’ private information violates their constitutional rights to privacy and right to vote under both the Pennsylvania and Federal Constitutions.
September 2021
Sarah A. Hughes, To Avoid Wolf’s Veto, Pa. GOP Proposes Giving Voters Final Say on Stricter ID Rules, Other Election Changes, News-Item (Sep. 28, 2021), Sarah Hughes discusses proposed constitutional amendments to Pennsylvania’s election process. The proposals would require valid identification for in-person and mail-voting and would also require watermarked paper ballots. These paper ballots would have to be open to the public for inspection for at least two years. Additionally, the proposed amendment would transfer the power to pick Pennsylvania’s top election official from the governor to the voters. State House Republicans, State Government Committee Approves Covid-19 and Election Related Bills, Grove Says, State News Service (Sep. 28, 2021), House Republicans released additional information regarding the proposed constitutional amendment to update sections of Article VII that are in conflict with federal constitutional provisions.
The American Civil Liberties Union of Pennsylvania, ACLU Pa.: Good Government Advocates Tell State Supreme Court That Marsy’s Law Ballot Question Disenfranchised Voters, Targeted News Service (Sep. 22, 2021), The Pennsylvania ACLU issued a news release pertaining to their lawsuit arguing that the Pennsylvania Constitution prohibits the vast number of changes in a single amendment that were contained in the Marsy’s Law question. In January, the Commonwealth Court ruled in favor of the ACLU finding no other amendment to a section of the Constitution that was as sweeping in scope as the Proposed Amendment. The ACLU is advocating for the opportunity for voters to vote for the parts they support and against the parts they oppose.
State Senator David G. Argall, Bipartisan Election Reform Bills Passed by Senate State Government Committee, State News Service (Sep. 21, 2021), State Senator David G. Argall released information about Bills that were passed through the Senate State Government Committee, including Senate Bill 551 which would amend the Pennsylvania Constitution to remove the requirement for a separate ballot for judicial elections.
Jonathan Lai, Pa. Senate Democrats Sue Republicans to Block Election Review Subpoena, Philadelphia Inquirer, (Sep. 18, 2021), Jonathan Lai reports on a lawsuit filed by Pennsylvania Senate Democrats aimed at blocking their Republican colleague’s subpoena of voter records from the 2020 election. The lawsuit alleges that Republican efforts are unconstitutional and violate the separation of powers because it is the role of the court to investigate and rule on election disputes, and it is the role of the executive branch to audit how elections are run.
August 2021
Matt Hicks, Commissioner Files Suit to Get ‘no excuse’ Mail-in Voting Declared Unconstitutional, Daily Review (Aug. 6, 2021), reports that Bradford County Commissioner Doug McLinko has filed suit in Commonwealth Court challenging the constitutionality of Act 77, which created no-excuse mail-in voting. McLinko argues that Pennsylvania’s Constitution requires in-person voting and lays out specific requirements for absentee voting. McLinko asserts that any allowances beyond those set forth in the constitution would require a constitutional amendment.
State House Democrats, Legislature Must Extend Opioid Disaster Declaration by Aug. 26, State News Service (Aug. 3, 2021), House Democrats released information that members of their caucus are urging Republican leaders to end the summer recess in time for lawmakers to vote to extend Governor Wolf’s 2018 disaster emergency order pertaining to the opioid epidemic. Governor Wolf has since renewed the order, but due to recent changes to the Pennsylvania Constitution, the order will expire in 30 days unless the General Assembly votes to extend it.
July 2021
Nicholas Malfitano, Philadelphia Says Claims in Gun Rights Group’s Lawsuit Over 3D-Printed Firearms Lack Standing, Pennsylvania Record (July 26, 2021), Nicholas Malfitano writes about the lawsuit brought by gun rights activists in response to the City of Philadelphia’s new ordinance prohibiting unlicensed persons from using 3-D printers to create firearms, or any piece or part thereof. The case is currently in federal court and the city has filed a motion to dismiss. Plaintiffs are trying to remand the matter to state court. Plaintiffs are seeking preliminary and permanent injunctions enjoining the defendants and their agents from enforcing this ordinance. Plaintiffs argue that the ordinance violates Article 1, Section 21 of the Pennsylvania Constitution.
Nicholas Malfitano, Philly Corrections Officer Claims He was Retaliated Against for Facebook Post, Pennsylvania Record (July 20, 2021), Nicholas Malfitano reports that a corrections officer, who did not receive proper payment due to failures of the OnePhilly payroll system, has filed suit after he was disciplined for posting about the issues online. The officer alleges he was not paid for overtime hours worked. The officer is a union member and started a thread to promote a rally of other corrections officers. Subsequently, other union members suggested a strike, which is not legal for prison employees. A disciplinary hearing was held and plaintiff was suspended for 30 days. Plaintiff contends he never suggested a strike and is seeking damages for retaliation under the First Amendment of the U.S. Constitution and the Pennsylvania Constitution.
Nicholas Malfitano, Athletes ‘Jock Tax’ Lawsuit Against Pittsburgh Back On, After Over a Year of Inactivity, Pennsylvania Record (July 7, 2021), Nicholas Malfitano writes about Judge Ward’s ruling reviving the case between the City of Pittsburgh and professional sports unions. In 2005, the City of Pittsburgh created a three percent income tax on visiting professional athletes and those who live outside of Pittsburgh as a “non-resident facility usage fee.” The City reasoned that the stadiums were funded with taxpayer dollars and they should be able to recover. The unions argue that the tax violates Pennsylvania’s Constitutional provision that all taxes be “uniform” and the City cannot levy different taxes on residents and non-residence. Judge Ward ordered the parties to collaborate on stipulations of fact and to engage in settlement discussions prior to preparation of cross-motions later this year. If the parties fail to reach an agreement on joint stipulations of fact, the court may allow limited discovery, followed by either a dispositive motion or a hearing on the merits.
June 2021
Marie Abliges, Pennsylvania Governor Vetoes GOP-led Election Overhaul Citing Voter ID Restrictions, Tribune-Review (June 30, 2021), Marie Abliges writes that although Governor Wolf vetoed Republicans’ new voter ID bill, the bill may still become law through an amendment to the Pennsylvania Constitution. The constitutional amendment process bypasses the executive branch. The proposed amendment would require a valid ID each time Pennsylvanians vote at a polling place. The amendment would also require proof of ID for mail-in ballots. In Senate Passes Plan for Voter Verification Constitutional Amendment, State News Service (June 24, 2021), State Senator Gene Yaw supported a Republican-led voter verification bill that also proposed lowering the voting age in the Pennsylvania Constitution from 21 to 18, making it consistent with the U.S. Constitution.
State House Republicans, White Bill to Reintroduce Constitutional Amendment to Allow Voter Recalls Passes Committee, State News Service (Jun. 16, 2021), House Republicans released information regarding Legislation sponsored by Rep. Martina White to amend the Constitution to allow for the recall of elected officials who oversee state executive branch agencies or departments and elected executives of first-class cities have passed the House State Government Committee. The bill was amended in committee to apply only to Philadelphia mayors and district attorneys.
State Senate Republicans, Senator Judy Ward: Voter Verification Constitutional Amendment Passes PA Senate Committee, State News Service (Jun. 15, 2021), State Senate Republicans approved in committee a plan that would allow voters to decide whether the Constitution should be amended to require identification each time a voter casts a ballot. Currently, voters are required to provide identification the first time they vote at a polling place.
Nicholas Malfitano, Federal Judge Throws Out School Committee’s Suit, which Claimed Board Closed and Merged Schools Without Public Input, Pa. Record (Jun. 10, 2021), Nicholas Malfitano writes that a school committee’s lawsuit to prevent the town’s school from being merged with a neighboring high school has been dismissed. The defense argued that the Pennsylvania Constitution “does not establish a right for students to receive an education at the school of their choice.” The court found that there was no evidence students would be treated differently and that students having a longer commute to and from school does not equal a constitutional violation. The Pennsylvania Constitution claims were dismissed without prejudice.
State Senate Republicans, Senate Veterans Affairs and Emergency Preparedness Committee Advances Measures, State News Service (Jun. 9, 2021), The Senate Veterans Affairs and Emergency Preparedness Committee advanced three measures, including legislation to amend the Constitution by expanding the Disabled Veterans Property Tax Exemption program. The bill would expand property tax exemption to spouses of soldiers killed in action. The bill would eliminate the requirement that a soldiers’ disability come during a period of war. The bill would also exclude disability income from being included in the calculation of taxable income.
Zack Hoopes, Cumberland County Judge Thomas Placey Steps Down from Bench as Part of Disciplinary Case, The Sentinel (Jun. 2, 2021), Zack Hoopes writes that the Pennsylvania Judicial Conduct Board dropped several of the counts against former Judge Placey, who resigned as a result of pending litigation. The counts dropped were those which charged that Placey’s behavior had brought the judicial office into disrepute, in violation of the Pennsylvania Constitution.
Nicholas Malfitano, Inspector General Report Says ‘No Executive Oversight’ Led to Failure of Proposed Amendment for Sex Abuse Victims, Pa. Record (Jun. 1, 2021), Nicholas Malfitano discusses the Department of State’s lack of oversight in failing to advertise House Bill 14 as required by the state constitution.
May 2021
Charles Thompson, Pa. House Proposes Change in Constitutional Amendment Process After Mistake on Child Sex Abuse Reforms, Patriot-News (May 24, 2021), Charles Thompson discusses the state House of Representatives proposed changes dealing with how future constitutional amendments are presented to the public. This proposed change would move the responsibility for drafting and advertising proposed amendments to the constitution from the Department of State and executive branch, to the Legislative Reference Bureau.
Ron Southwick, Pa. Gov. Tom Wolf extends disaster declaration due to COVID-19 pandemic, days after votes to curb his powers, Patriot-News (May 20, 2021), Ron Southwick reports on Governor Wolf’s extension of the COVID-19 disaster declaration after 54% of voters supported amendments to the state constitution limiting the governor’s power. The first amendment shortens the duration of the governor’s emergency declaration from 90 days (which can be renewed indefinitely) to 21 days and gives the General Assembly the right to extend the order. The second amendment provides the General Assembly the sole right to extend or end disaster declarations by a simple majority vote and without the governor’s signature.
Nicholas Malfitano, Owner of Old City Beer Garden sues Philly Health Department, over alleged improper closure of the business, Pa. Record (May 19, 2021), Nicholas Malfitano writes that the City of Philadelphia’s Department of Public Office of Food Preparation is being sued by a bar owner for improperly closing his business without proper justification and in violation of due process. The city removed the case to federal court, but the district judge remanded the case citing the plaintiff’s reliance on the Pennsylvania Constitution’s broader protection of due process.
Jeffrey Barg, In Pa. Ballot Questions, a Grammatical Crisis Could Lead to a Public Policy Crisis, The Philadelphia Inquirer (May 12, 2021), Jeffrey Barg writes about the Wolf Administration’s efforts to add “clarifying” language to the constitutional amendments on the ballot. The administration added language in an effort to persuade voters to vote no, however the added level of confusion makes the amendments more likely to pass.
State Senate Republicans, Dush Introduces Legislation to Protect the Right to Keep and Bear Arms, State News Service (May 10, 2021), State Senate Republicans released information regarding Senate Bill 624 which Senator Dush introduced. This bill would prohibit state and local government officials from enforcing any gun restriction laws or regulations that are in conflict with the Second Amendment of the United States Constitution. The bill also provides civil penalties for officials who cooperate with the federal government in enforcing gun restriction laws.
Matt Fair, Pa. Health Dept. Sued Over Contact Tracing Database Breach, Law360 (May 6, 2021), Matt Fair writes that the Commonwealth of Pennsylvania and Insight Global Inc., a government contractor, have been met with a proposed class-action suit only a week after confirming that personal information of thousands of residents may have been exposed as part of a breach of the state’s COVID-19 contact tracing database. The suit claims that the Pennsylvania Department of Health, along with Insight Global Inc., failed to incorporate adequate data protection measures into its database to prevent the personal information of Pennsylvania residents from being accessed by hackers.
Celeste Bott, Coronavirus Litigation: The Week in Review, Law360 (May 6, 2021), Celeste Bott writes that a lawsuit has been filed in the U.S. Court of Federal Claims by more than 200 correctional officers at the Pennsylvania Federal Correctional Institution in McKean County. The officers are claiming they are owed hazard pay for working in close proximity to prisoners, colleagues, and facilities infected with COVID-19. The officers are seeking back pay at a higher rate in addition to interest and the recalculation of any overtime to account for the increased pay under the Fair Labor Standards Act.
Maria Albiges, Pa. Supreme Court Picks Former Pitt Chancellor to Chair Redistricting Commission, Bucks County Courier Times (May 5, 2021), Marie Albiges writes that the Pennsylvania Supreme Court has appointed the former dean of the University of Pittsburgh School of Law to be the chair and tie-breaking vote on the Legislative Reapportionment Commission. The five-person Legislative Reapportionment Commission will redraw State House and Senate districts. The Republican-controlled General Assembly is responsible for redrawing congressional districts for the next ten years, but they must get approval from Democratic Governor Tom Wolf. If they fail to reach an agreement, the Pennsylvania Supreme Court may be asked to step in as they did in 2011 when they rejected the commission’s first maps for splitting too many municipalities in violation of the Pennsylvania Constitution.
Matt Fair, REIT Sues Insurers in Pa. Over Virus-Related Hotel Losses, Law360 (May 4, 2021), Matt Fair writes that Pebblebrook Hotel Trust has filed suit in Pennsylvania state court against a group of more than two dozen insurers. Pebblebrook is alleging it was wrongly denied coverage for financial losses it sustained at its properties due to the COVID-19 pandemic. The company is arguing that because the pandemic created direct physical loss of or damage to its properties, it was limited in its ability to operate safely. This case is one of several from businesses attempting to recoup lost income and other financial losses suffered after being forced to close their doors at the start of the pandemic.
April 2021
Marcus Schneck, New Book by Former Pa. State Senator Calls for Environmental Rights Amendment to the Constitution, Patriot-News (Apr. 29, 2021), Marcus Schneck writes about a new book written by former Pennsylvania State Senator Franklin Kury who championed the Environmental Rights Amendment to the Pennsylvania Constitution in the 1960s, which was ultimately ratified in 1970. The book calls on the federal government to amend the U.S. Constitution with a similar amendment to protect the people’s right to a clean environment.
Torsten Ove, Federal Judge Tosses COVID-Related Tuition Reimbursement Suit Against Pitt, Pittsburgh Post-Gazette (Apr. 29, 2021), Torsten Ove writes that U.S. District Judge William Stickman IV dismissed a breach-of-contract suit against the University of Pittsburgh by students seeking refunded tuition because of COVID-19. The federal judge ruled that the students had not pled plausible claims for breach of contract by the university because it was following state lockdown guidelines.
Paul Schemel, From the Capitol- Pennsylvania House of Representatives, The Record-Herald (Apr. 28, 2021), Pennsylvania Representative Paul Schemel discusses an amendment to the Pennsylvania Constitution that will be voted on in the May 18th primary. The amendment would allow the General Assembly to unilaterally terminate or extend the Governor’s disaster emergency declaration. The amendment is in response to Governor Wolf’s veto of H.R. 863 of 2020 which would have put an end to the COVID-19 disaster declaration and the governor’s unilateral ability to handle such declarations.
Angela Couloumbis, Relief for Child Sex Abuse Survivors Revived in Pa. Senate After Wolf Administration Error, Tribune-Review (PA) (Apr. 25, 2021), Angela Couloumbis writes that a key senate committee approved legislation by an 11 to 3 vote to temporarily allow survivors of decades-old child sexual abuse to sue the perpetrators. In order to amend the state constitution, the amendment must pass in two consecutive sessions. Although the 2019-2020 legislature passed the amendment, the Department of State failed to advertise the amendment, disqualifying it from appearing on the ballot for voters to decide on. The legislature is now contemplating using an emergency constitutional amendment, which only requires passage in one session, to get the measure back on track and on the ballot this spring.
Matt Fair, Pa. Lawmakers OK Bill to Open Window for Old Abuse Claims, Law360 (Apr. 21, 2021), Matt Fair writes that a Pennsylvania Senate committee gave its blessing to a bill that would open a two-year window for victims of sexual abuse to bring lawsuits that would otherwise be barred under the statute of limitations. The measure was approved 11-to-3 by the Senate Judiciary Committee after efforts to create a window by constitutional amendment were hampered earlier this year by the state’s failure to properly advertise the referendum to voters.
News Service (Apr. 15, 2021), Targeted News Service Article: On March 3rd, 2021, four municipalities filed a petition for review in the Commonwealth Court asking the court to declare that the General Assembly violated the Pennsylvania Constitution by preempting municipalities from enacting or enforcing anti-plastic legislation. The municipalities claim that the General Assembly violated at least three sections of Pennsylvania’s constitution including the Environmental Rights Amendment (Article 1, Section 27), the “Single Subject” provision (Article 3, Section 3), and “altering a bill to change its original purpose” provision (Article 3, Section 1).
Sam Dunklau, Some Elected Officials Are Still Mad That PA’s Supreme Court Ruled On Election Law. Here’s Why It Matters Now, 90.5 WESA (Apr. 15, 2021), Sam Dunklau writes that some state and federal lawmakers believe that the Pennsylvania Supreme Court improperly interfered in the 2020 presidential election, despite Governor Wolf’s actions and the Court’s decisions being upheld in a number of court appeals. House and Senate lawmakers are conducting hearings on election processes to clarify the election law so that procedures are clear to voters in advance of the next election.
Stacey Witalec, Justice Max Baer Becomes New PA. Supreme Court Chief Justice, Lawyers Journal (Apr. 9, 2021), Stacey Witalec writes that on April 1, 2021, Chief Justice Saylor transferred the position of Chief Justice to Justice Max Baer. Justice Baer assumed his role as a member of the Supreme Court in 2003 and was retained in 2013.
Matthew Santoni, Pa. High Court Deadlocks on K&L Gates Appeal, Law360 (Apr. 8, 2021), Matthew Santoni writes that the Pennsylvania Supreme Court deadlocked over whether there should be a “fiduciary exception” to attorney-client privilege in Pennsylvania regarding an appeal brought by a trustee in an estate dispute. The exception would apply to trust beneficiaries like the trust attorney’s clients and would allow the attorney to share otherwise privileged information with them. Justices Wecht, Todd, and Dougherty sided in favor of the privilege; Justices Saylor, Donahue, and Mundy sided against; and Chief Justice Max Baer abstained from the case.
March 2021
Pa. Bar Leaders Aren’t Giving Up On Drafting Anti-Bias Rule, Law360 (Mar. 18, 2021), Law360 writes that although the Pennsylvania Supreme Court has thwarted an attempt to overturn a decision enjoining an anti-bias ethics rule for lawyers, legal leaders say they remain hopeful that a new version of the rule will survive First Amendment scrutiny. Supporters of Rule 8.4(g), which allows attorneys to face ethics charges for expressions of bias or prejudice, suggest narrowing the scope of the rule to avoid legal challenges.
Nicholas Malfitano, Landlord Rights Group Says Pittsburgh has Violated City and State Laws Through Eviction Regulation Ordinance, The Pennsylvania Record (Mar. 15, 2021), Nicholas Malfitano writes that a landlord advocacy group has brought suit against the City of Pittsburgh and Pittsburgh City Council for allegedly violating its Home Rule Charter and the state constitution through its implementation of a temporary eviction measure during the COVID-19 pandemic. The group claims that the city is imposing regulations that exceed the Center for Disease Controls regulations by forcing landlords to renew leases, preventing the termination of leases, and prohibiting the filing of actions for evictions.
Jeff Werner, Senate Democrats Fire Back Against Republican Lawsuit Seeking to Overturn Delaware River Basin Fracking Ban, The Daily American (Mar. 13, 2021), Jeff Werner writes that State Senator Steve Santarsiero and the Senate Democratic Caucus “fired back” against a federal lawsuit filed by their Republican counterparts seeking to overturn a fracking ban imposed by the Delaware River Basin Committee (DRBC). The suit challenges the DRBC’s authority to regulate fracking in the basin and contends that the DRBC is usurping lawmakers’ ability to govern.
Jason Grant, In First-Impression Ruling, Appeals Court Says City Doesn’t Have to Indemnify Off-Duty Officer for $236k Judgment in Assault Case, Legal Intelligencer (Mar. 12, 2021). Jason Grant writes that the Commonwealth Court of Pennsylvania held that a man who was beaten by an off-duty police officer cannot recover against the officer from the City of Pittsburgh under the Political Subdivision Tort Claims Act, a statutory indemnification provision, because the officer was not acting under the color of state law within the scope of his employment duties at the time of the beating. The Act states that a local agency must indemnify an employee for personal or property injury judgments tied to the employee’s actions within the scope of their employment duties.
Sean P. Ray, Area Man Attempts to Remove AG’s Office from Defending Wolf in Case, The Meadville Tribune (Mar. 11, 2021). Sean P. Ray writes that Luigi DeFrancesco, a Guys Mill resident, who filed a petition against Governor Tom Wolf claiming that he violated the Pennsylvania Constitution by proclaiming a disaster emergency during the COVID-19 pandemic, is attempting to prevent the Pennsylvania Office of the Attorney General from defending the governor in the legal proceedings. DeFrancesco argues that by defending Governor Wolf, the Attorney General would be unable to be impartial in any theoretical investigations of the executive branch for violating the law during the COVID-19 pandemic.
Suzette Parmley, Marijuana Smell Alone Not Enough to Search Convicted Man’s Vehicle, Panel Rules, Legal Intelligencer (Mar. 4, 2021). Suzette Parmley writes that the Pennsylvania Superior Court ruled that the odor of marijuana alone does not establish probable cause for police to search a defendant’s parked motor vehicle. According to Parmley, this reexamination of the plain smell doctrine is likely a preview of what’s to come in other states that had moved to legalize medical and recreational marijuana.
Pennsylvania Hauled to Court Over Blocking Plastic Bag Bans, Associated Press (Mar. 3, 2021). The Associated Press states that Philadelphia and three other municipalities sued Pennsylvania after the state blocked local bans and taxes on the use of plastic bags. The lawsuit claims that the state’s actions violated the Pennsylvania Constitution because of the health, environmental, aesthetic, and financial implications of plastic bags.
Matthew Santoni, Pittsburgh Judge Sued For Lack Of Virtual Court Access, Law360 (Mar. 2, 2021). Matthew Santoni writes that The Abolitionist Law Center, a nonprofit civil rights law firm, sued Allegheny Court of Common Pleas Judge Anthony Mariani for a constitutional violation after the judge repeatedly denied the Center’s requests to remotely observe proceedings in his courtroom. Judge Mariani has allowed attorneys and witnesses to participate virtually.
Matthew Santoni, Top Pa. Justice Announces Succession Plan, Law360 (Mar. 1, 2021). Matthew Santoni writes that Pennsylvania Chief Justice Thomas G. Saylor will retire at the end of this calendar year after he reached the mandatory retirement age pursuant to state law. Justice Max Baer will succeed Chief Justice Saylor in April as part of an early transitioning process.
February 2021
Matthew Mangino, The Time is Right to Fix Punishment for Felony Murder, The Ellwood City Ledger (Feb. 24, 2021) Matthew Mangino writes that, although Pennsylvania is not carrying out executions, there are thousands of de facto death sentences. Under Pennsylvania’s sentencing procedures, a life sentence has no minimum term and no opportunity for parole. Mangino writes that in Pennsylvania, more than 20% of inmates with life sentences did not kill anyone; rather, they were convicted of second-degree murder, also known as felony murder. Recently a lawsuit has been filed on behalf of six individuals convicted of felony murder in their late teens who argue that prohibiting parole considerations for felony murder is cruel punishment and unconstitutional under the Pennsylvania Constitution.
Dan McLaughlin, Clarence Thomas Blasts the Supreme Court for Ducking the PA. Election Challenge, Pittsburgh Post-Gazette (Feb. 24, 2021), Dan McLaughlin writes that the U.S. Supreme Court turned away the remaining challenges to the 2020 election in Pennsylvania. In his dissent, joined by Justices Samuel Alito and Neil Gorsuch, Justice Clarence Thomas “blasted” the Court for repeatedly ducking the main issue: whether state courts or state executive officials can use the general, open-ended terms of state constitutional provisions to invalidate specific rules passed by state legislatures governing federal elections. Justice Thomas noted that, while there was no evidence in the record that the Pennsylvania voting deadline extension changed the result of any federal election, that may not be the case in the future.
Metcalfe Brings House Bill 357 to National Nullification Fight, State News Service (Feb. 16, 2021) The State News Service Article: Republican Representative Daryl Metcalfe has once again introduced his Right to Bear Arms Protection Act, House Bill 357, that seeks to make any additional federal gun control laws unenforceable within the Commonwealth. The Right to Bear Arms Protection Act would: (1) prohibit enforcement of any new federal registration, restriction or prohibition requirement for privately owned firearms, magazines and ammunition; and (2) require the Commonwealth of Pennsylvania, including the Office of Attorney General, to intercede on behalf of Commonwealth citizens against any federal attempt to register, restrict or ban the purchase or ownership of firearms and firearms accessories which are currently legal products. According to the article, “final enactment of the Bill would mean anyone, including federal agents, who attempted to enforce any type of new gun control restriction within state borders would face arrest and be charged with a felony offense.”
Caroline Dickey, Christina M. Janice, and Mark Wallin, Governor’s COVID-19 Orders Are Not Public Policy, Pennsylvania Federal Court Says, National Law Review (Feb. 11, 2021), The authors write that a federal judge found that Governor Wolf’s COVID-19 related executive orders do not constitute public policy and terminating an employee after reporting violations of those orders is not wrongful. In Warner v. United Natural Foods, Inc., the plaintiff brought suit for wrongful termination in violation of public policy, alleging that his employment was terminated after he reported his employer to the Department of Health for the company’s failure to adequately adhere to COVID-19 orders issued by Governor Wolf. The court reasoned that public policy in Pennsylvania is determined by reference to judicial decisions by the Pennsylvania courts, the Pennsylvania Constitution, and statutes enacted by the Pennsylvania legislature. The court found that the Governor’s COVID-19 orders did not fall within these categories and did not undergo the same rigorous enactment process as a statute or administrative regulation. The court stated that “public policy of the Commonwealth of Pennsylvania cannot be based on the whims of an individual judge or the allegations of an aggrieved employee.”
Angela Couloumbis, Wolf Administration Refuses to Release Details After Failure Derails Pa. Clergy Sex Abuse Relief, The Daily Item (Feb. 10, 2021), Angela Couloumbis writes that the Department of State, which oversees elections, disclosed that it had failed to advertise the proposal of a constitutional amendment as required by law. The amendment would have allowed survivors of decades-old sexual abuse survivors to bring their claims despite the fact the statute of limitations had run. The admission led to the swift resignation of the agency’s top official, Kathy Boockvar. In the days following, the Wolf administration declined to provide additional details of what exactly occurred, how it happened, who was responsible for the error, and whether any disciplinary action or terminations occurred as a result.
Nicholas Malfitano, Schools Defend Not Hiring Man as Sub Because of 1965 Arrest, The Pennsylvania Record (Feb. 10, 2021), Nicholas Malfitano writes that two Pennsylvania school districts argue they were following state law when they denied a work opportunity to Anthony Gaglierd, a substitute teacher who had been arrested on one occasion 55 years ago. Gaglierd filed suits in the Allegheny County Court of Common Pleas alleging that the districts violated the Criminal history Record Information Act through denying his application because his prior arrest did not relate to his job duties as a teacher. Lower Pennsylvania courts considering the issue suggested that there is no action for monetary damages under the Pennsylvania Constitution; however, the Supreme Court of Pennsylvania has yet to rule on the issue.
Mark Scolforo, Wolf Takes State Out Of Appeal Over Victim Rights Amendment, Associated Press (Feb. 9, 2021). Mark Scolforo writes that Governor Wolf opted not to participate in the appeal of a Commonwealth Court decision striking down a victims’ rights amendment known as Marsy’s Law. Though Marsy’s Law received Pennsylvania voter support, the League of Women Voters successfully blocked the voting results when it argued that the amendment disenfranchised voters by presenting too many constitutional changes in one ballot referendum.
Nicholas Malfitano, Judge Rules Against Business Owner Who Mailed Governor Wolf a Bill for COVID Losses, The Pennsylvania Record (Feb. 2, 2021), Nicholas Malfitano writes that a Philadelphia sports medicine business owner who attempted to bill Governor Tom Wolf more than $137,000 for losses he incurred during adherence to the Governor’s COVID-19 orders has lost the first attempt at his case. Wilson filed a pro se complaint against the Governor seeking damages for violations of his First and Fourteenth Amendment rights. Judge Joshua D. Wolson dismissed the complaint but provided leave to file an amended iteration consistent with his ruling.
January 2021
George Dylan Apessos and Tyler Siminski, Nationwide Reforms Pave the Way for Legal Innovation in PA., Lawyers Journal (Jan. 29, 2021), The authors write that Article V, section 10 of the Pennsylvania Constitution provides the State Supreme Court with exclusive power to regulate the practice of law in Pennsylvania. Currently, the Pennsylvania Rules of Professional Conduct prohibit lawyers from granting non-lawyers an ownership or controlling interest in a law firm, from practicing in a firm if a non-lawyer is a corporate director or an officer, or if non-lawyers have the right to direct or control the professional judgment of lawyers. However, in 2015, the Philadelphia Bar Association analyzed these issues and concluded that: (1) Pennsylvania firms may use titles for non-lawyer employees that include the word “Officer” or “Director” in the job title, as long as they “do not control the lawyers’ professional activities and do not own any portion of the firm;” and (2) these individuals may not serve on the governing bodies of the firms, unless their voting matters pertain solely to administrative matters. The authors admit that, while no changes have been made, it is pragmatic to hypothesize how these reforms could impact commercial practice in Pennsylvania.
Committee Passes Argall Bill to Amend Lieutenant Governor Selection, Republic Herald (Jan. 27, 2021), The Republican Herald Article: By a 10-1 vote, the Senate State Government Committee passed legislation to amend the Pennsylvania Constitution to change how the lieutenant governor is selected. The amendment will permit candidates for governor to choose their lieutenant governor candidate after the primary election. In Pennsylvania, constitutional amendments must be approved during two consecutive sessions of the General Assembly before they are put on the ballot. If the full Senate and House of Representative approve this amendment, it could go before voters in the May 18 primary.
David Wenger, Misguided Constitutional Amendment is Bad for Our Democracy, Pittsburgh Post-Gazette (Jan. 26, 2021), David Wenger writes that the Republican party in the Pennsylvania General Assembly is attacking democracy in the Commonwealth. Wenger writes that, House Bill 38, a joint resolution to amend the Pennsylvania Constitution to create regional judicial districts, will enshrine judicial gerrymandering as the “Pennsylvania way.” Wenger writes that, under the guise of bringing greater accountability to the courts, the proposed House Bill 38 is more accurately described as an attempt to hobble the independence of our judicial system in order to benefit the Republican Party by concentrating its power over the judiciary.
Russ Diamond, Bringing Equity and Fairness to PA Appellate Courts, Erie Times-News (Jan. 26, 2021), Russ Diamond, a Pennsylvania State Representative of the Republican Party, writes that opponents of House Bill 38, a proposed constitutional amendment to change Pennsylvania’s appellate court elections from statewide to regional affairs, have incorrectly labeled it as “gerrymandering” to support their objections to the bill. The proposed bill will prevent overrepresentation of certain counties and provide every region of Pennsylvania an equal voice. Opponents fail to recognize that their preferred approach to reforming our appellate courts is a “merit selection” plan which would literally disenfranchise every single voter in Pennsylvania. Establishing regional appellate court district is not a new idea; rather, it is an effort to address longstanding inequities with a solution and restore faith in governance.
Ed Palattella, Supreme Court Set to Decide in Feb. Whether to Hear Rep. Mike Kelly’s Election Case, Pittsburgh Post-Gazette (Jan. 25, 2021). Ed Palattella writes that the United States Supreme Court will soon decide whether it will hear U.S. Representative Mike Kelly’s case challenging the results of the presidential race, in which he claimed that Pennsylvania’s mail-in voting process was unconstitutional. The Court previously rejected Mr. Kelly’s request for an emergency injunction during Pennsylvania’s vote counting procedures.
Coronavirus Death Counts Exceed One Per Day in Pa. Prisons. Gov. Wolf Needs to Use All the Tools He Has, The Philadelphia Inquirer (Jan. 22, 2021), The Philadelphia Inquirer Article: Reprieve is an imperfect tool to respond to coronavirus in prisons, but it’s all Pennsylvania has right now: In order to decrease the number of COVID-19 deaths in Pennsylvania state prisons, Governor Wolf can unilaterally use the power of reprieve. Reprieve is a pause in a prison sentence after which the individual returns to prison; the time spent outside of prison does not count toward the sentence. In the past, Governor Wolf has used reprieve to impose a moratorium on execution.
Max Mitchell, License to Carry Dispute Highlights ‘Significant Gaps’ in the Law, Pa. Judge Says, Legal Intelligencer (Jan. 21, 2021). Max Mitchell writes that Judge Jeffrey Saltz of the Montgomery County Court of Common Pleas stated that Section 6109 of the Pennsylvania Uniform Firearms Act of 1995 has “significant gaps.” The court was determining whether a Montgomery County sheriff properly considered a man’s application for a license to carry firearms after his license was revoked. The court indicated that the law was silent as to the consequences if the sheriff did not review the license application within 45 days. The law was also silent on what effect a firearms license revocation would have on an individual’s ability to reapply for a new license. The court denied the man’s request for a license but held that the sheriff must review his new license application on the merits.
Mick Stinelli, Court Rules in Favor of City in Harris Campaign Finance Suit, Pittsburgh Post-Gazette (Jan. 20, 2021), Mick Stinelli writes that an Allegheny County Common Pleas judge ruled against former city Councilwoman Darlene Harris in her attempt to throw out a fine for breaking Pittsburgh’s campaign finance rules. The suit, brought by Ms. Harris, alleged the city’s rules violated the Pennsylvania Constitution after she was fined $4,150 by the city’s Ethics Hearing Board for refusing to file campaign documents during her re-election campaign for City Council in 2019. The judge ruled that Pittsburgh’s rules are not pre-empted by the Pennsylvania Constitution.
Marie Albiges, Redistricting Will Be the Definitive Political Fight of 2021 in Pennsylvania. Here’s How It’ll Work, Pittsburgh Post-Gazette (Jan. 18, 2021). Marie Albiges writes that Pennsylvania is approaching a period of statewide redistricting where voting districts are redrawn to account for population shifts. State lawmakers determine where these lines are drawn and can use partisan gerrymandering to draw lines guaranteeing legislative majorities. However, redistricting reformers hope that lawmakers will hold themselves accountable by including criteria and transparency in the redistricting process.
Josh Hawley, Here’s Why I Objected to the Electoral Vote, Springfield News (Jan 15, 2021), Josh Hawley writes that, during a Joint Session count of electoral votes on January 6, he objected in order to have a debate on the issue of election integrity. Hawley specifically objected with regard to Pennsylvania because he believes “the state failed to follow its own constitution.” He argued that, for more than a century, the Pennsylvania constitution has been interpreted as prohibiting mail-in voting, except in clearly stated circumstances. Despite this, Pennsylvania politicians adopted universal mail-in voting procedures, and the Pennsylvania Supreme Court changed the rules for when mail-in ballots can be returned. Hawley further maintained that when Pennsylvania citizens attempted to go to court to object to the mail-in voting, the Pennsylvania Supreme Court threw out the cases on procedural grounds, in violation of its own precedent.
John Finnerty, Controversial Proposed Changes to PA Constitution Moving at Capitol, The Meadville Tribune (Jan. 14, 2021), John Finnerty writes that a House panel moved two proposals that would ask voters to amend the Pennsylvania Constitution. One would allow adult survivors of child sex abuse to sue even if the statute of limitations had expired and the second would provide that appellate court judges are elected by region rather than statewide. Both proposals passed through chambers of the General Assembly, and if they continue to pass unchanged in the weeks ahead, voters may see them on the ballot in May.
House State Government Committee Approves Slate of Bills to Improve How State Government Operates, State News Service (Jan. 13, 2021), The State News Article: The House State Government Committee approved a series of bills during its first meeting of the 2021-2022 session. Three bills to amend the Pennsylvania Constitution were approved by the committee: (1) House Bill 51 proposes an amendment related to taxation and finance, providing restrictions on budgetary surpluses; (2) House Bill 55 proposes amendments relating to emergency declarations, nondiscrimination protections and presentment to the governor; and (3) House Bill 71 proposes an amendment to establish limitations on the spending of Commonwealth funds.