Jeremy E. Abay, Simon Says Protect My Reputation: Understanding Pennsylvania’s Constitutional Right to Reputation, 94 Pa. Bar Ass’n. Q. 68 (April, 2023), Jeremy Abay discusses the history of the right to reputation afforded by Article I, Section 1 of the Pennsylvania Constitution, including Simon v. Commonwealth, in which the Commonwealth Court held that due process requires that persons whose reputations are threatened by a state-sanctioned report be provided advanced notice and an opportunity to respond. Abay outlines multiple cases in which Pennsylvania courts have found adequate and inadequate due process and emphasizes the importance of Pennsylvania attorneys understanding when to invoke their clients’ rights to reputation.
Alden A. Fletcher, Strict Subordination: The Origins of Civil Control of Private Military Power in State Constitutions, 14 Harv. Nat’l Sec. J. 254 (2023), Alden Fletcher discusses the prevalence of strict subordination clauses in state constitutions, which state that the military shall be governed by civilian powers, and the legal history of private militias under such clauses. Fletcher specifically discusses the precedent set in Pennsylvania by Benjamin Franklin to allow for private militias when he wrote the Form of Association in 1747. The structure Franklin outlined in the Form of Association was later used as a basis for the Militia Act of 1755, which made it lawful for the citizens of Pennsylvania to form a militia outside of governmental power until it was repealed by Great Britain. Fletcher argues that such legal history suggests that the subordination clause contained in Article XIII of the Pennsylvania Constitution allows the creation of private militias.
Maria K. Mondell, Unconstitutional Licensing Requirements Restricting Livelihoods: An Analysis of Haveman v. Bureau of Professional and Occupational Affairs, 31 Widener Commonwealth L. Rev. 441 (2022), Maria Mondell discusses the constitutionality of The Beauty Culture Law under Article I, Section 1 and Article I, Section 26 of the Pennsylvania Constitution, otherwise known as the Due Process Clause and the Equal Protection Clause, respectively. She agrees with the Commonwealth Court’s decision in Haveman v. Bureau of Pro. and Occupational Affairs that the Beauty Culture Law violated the Equal Protection Clause as its requirement of “good moral character” was not included in the similar Barber License Law and thus did not treat similarly situated persons alike. However, Mondell argues that because the “good moral character” requirement was overly broad and lacked a rational relationship to the state’s objective of protecting salon patrons, the court was incorrect when it held that the law did not violate the Due Process Clause.
David N. Wecht & Brett Graham, Incumbent Protection in Legislative Redistricting: First Principles and the Constitution, 32 Widener Commonwealth L. Rev. 1 (2023), Pennsylvania Supreme Court Justice David Wecht and Brett Graham write that the United States Supreme Court’s failure to decide on the constitutionality of the policy of incumbent protection in creating voting districts has left the decision to state and federal district courts. They discuss the argument that incumbent protection conflicts with the ideals of the framers of the Constitution. They then discuss the counterargument that incumbent protection does not violate any provisions in the Constitution. They further outline Pennsylvania court decisions that may be important in determining whether the practice is in violation of the Pennsylvania Constitution.
Gladys Balcarcel, Pennsylvania’s Abortion Control Act: A Survey of Allegheny Reroductive Health Center v. Pennsylvania Department of Human Services, 32 Widener Commonwealth L. Rev. 335 (2023), Gladys Balcarcel writes about the Commonwealth Court’s decision in Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services that physicians who perform abortions on women enrolled in Medicaid do not have standing to assert state constitutional claims on behalf of their patients. In Reproductive Health Center, the Court found that the physicians’ interest was not protected by the Pennsylvania Constitution’s Equal Protection Clause. Balcarcel argues that the Court’s decision is inconsistent with the Pennsylvania Supreme Court’s previous holding that third parties have standing to assert constitutional rights. Balcarcel writes that the Pennsylvania Supreme Court should construe the legal precedent more broadly if it decides to hear the case on appeal.
Josephine L. Mlakar, Running a Red Light: How Pennsylvania Rushed to Its Destination and Failed to Define “Exigent Circumstances” in Commonwealth v. Alexander, 61 Duq. L. Rev. 308 (Summer, 2023), Josephine Mlakar discusses the expansion the Pennsylvania Supreme Court made to the automobile exception to Article I, Section 8 of the state Constitution, which provides analogous search and seizure protections under the Fourth Amendment of the federal Constitution. However, Article I, Section 8 has historically been interpreted to provide broader rights than its federal counterpart. While the Fourth Amendment’s automobile exception states that the police can search a vehicle without a warrant when probable cause exists, Pennsylvania’s exception states that police need probable cause and exigent circumstances in order to search an automobile without a warrant. However, Mlakar argues that the Court’s failure to define exigent circumstances and create a bright-line rule will increase public skepticism of police officer’s decision making and cause inconsistencies in trial courts’ rulings.
John Landzert, Green New Appeal?: The Due Process Clause as a Defense Against State Preemption of Municipal Environmental Laws, 64 B.C. L. Rev. 1243 (May 2023), John Landzert discusses Justice Baer’s concurrence in Robinson Township, in which the Pennsylvania Supreme Court ruled that a law preempting municipalities from regulating gas and oil operations or creating zoning ordinances affecting fracking operations different from the state plan violated Article I, Section 27 of the state Constitution. Justice Baer stated that the Constitution protects a substantive due process right to quiet enjoyment of real property and that municipalities are best equipped to protect that right. Landzert argues that the Supreme Court of the United States should also take this position as it will allow municipalities to effectively respond to health and environmental challenges.
Kelly Hanna, The Intersection of Reason and Risk: How Article I. Section 27 of the Pennsylvania Constitution Can Protect Environmental Justice Communities From State-Sanctioned Pollution and Cumulative Impacts, 15 Drexel L. Rev. 621 (2023), Kelly Hanna discusses how Article I, Section 27 of the state Constitution can be used to protect minority low-income communities from disproportionate environmental harm. Article I, Section 27 guarantees the individual right to clean air, pure water, and the preservation of environmental values and the Pennsylvania Supreme Court has ruled that this creates a duty for the state to avoid unreasonably impairing this right. Hanna argues that the standard for what constitutes unreasonable impairment should be evaluated according to existing tort law doctrine and that any additional pollution to low-income, minority communities is unreasonable as it increases the risk to communities that are already subjected to compounding adverse environmental stressors.
Madison Morton, Someone in Their Corner: Protecting Pennsylvania’s Domestic Violence Victims With a Civil Right to Counsel in Family Court Proceedings, 15 Drexel L. Rev. 709 (2023), Madison Morton discusses the necessity of a statutory civil right to counsel for domestic violence victims who are seeking divorce from their abusive partners. Although the Pennsylvania Constitution does not guarantee a right to counsel in civil actions, various statutes provide a civil right to counsel under certain circumstances, such as to children in contested parental rights termination proceedings. Morton argues that Pennsylvania legislators should enact a statute modeled after the New York Family Court Act to guarantee a civil right to counsel for indigent parties in child custody cases, civil protection cases, and for indigent domestic violence victims seeking divorce.
Ben Horton, An Issue of First Impression? State Constitutional Law and Judging the Qualifications of Candidates for the House and Senate, 102 Neb. L. Rev. 93 (2023), Ben Horton writes that Pennsylvania is a Sequential Jurisdiction State because it allows for the adjudication of legislative candidates’ qualifications prior to an election, but does not allow for such adjudication after an election. Horton points to a case in which the Commonwealth Court interpreted that Article IV, Section 6 of the state constitution only to apply to “offices,” which did not include a Senator, and therefore the Senator could hold the office of Lieutenant Governor. Horton argues that in doing so, the Court violated the general principle that it could not issue post-election non-advisory opinions.
Tyler Melton, Gerrymandering, Supreme Court Inaction, and Legislative Failures: Why Legislative Action on Political Gerrymandering Will Never be Adequate, 21 Appalachian J.L. 1 (2023), Tyler Melton writes that Article II, Section 17 of the Pennsylvania Constitution explicitly establishes how the legislature is to proceed when redistricting. Melton argues that although the redistricting commission is required to include the majority and minority leaders of the Senate and the House of Representatives, the process remains “clouded” by leadership of the same party. Melton writes that the Pennsylvania Supreme Court’s holdings indicate that even if a redistricting plan appears to be neutral, the total majority by one political party will result in partisan gerrymandering.
Kimberly Tague, Who is Exempt from Real Estate Taxes? Now That is the Question, 25 No. 20 Laws. J. 14 (Oct. 6, 2023), Kimberly Tague writes that the Pennsylvania Constitution exempts five categories of properties from taxation, one being a “purely public charity.” Although the constitution does not define what qualifies as a “purely public charity,” the Supreme Court created a five-prong test in 1989 and the legislature passed the Institutions of Purely Public Charity Act in 1997 to provide further guidance.
Krista Kochosky, Regulatory Conundrums in the Era of Short-Term Rentals: Lessons from Ladd v. Real Estate Commission and Beyond, 25 No. 20 Laws. J. 9 (Oct. 6, 2023), Krista Kochosky writes that the Pennsylvania Supreme Court held that the Real Estate Licensing and Regulation Act (RELRA) was unconstitutional as applied to short-term rental properties because it limited the right to manage third party property only to licensed real estate brokers. Kochosky writes that although the Court’s decision allows for non-real estate brokers to manage short-term rentals, managers of such properties must know the applicable laws and regulations.
Richard Briffault, States of Emergency: COVID-19 and Separation of Powers in the States, 2023 Wis. L. Rev. 1633 (2023), Richard Briffault discusses the case of Wolf v. Scarnati, in which the Pennsylvania Supreme Court held that the legislature violated the presentment requirement of the state constitution when it attempted to terminate the governor’s declaration of a state of emergency. The Court found that the constitution’s requirement that the governor be presented with every resolution applied to the emergency-termination resolution, which ultimately resulted in the governor vetoing the resolution and the legislature failing to overturn the veto by two-thirds vote. Following the Court’s decision, the legislature passed two proposed amendments to the constitution. One eliminated the presentment requirement for emergency-termination resolutions and the other eliminated the governor’s power to renew emergency declarations without a limit. Briffault writes that the two amendments had broader effects on COVID-19 litigation and the Court’s decision in Corman v. Acting Secretary of the Pennsylvania Dept. of Health. In Corman, the Court invalidated an acting health secretary’s order mandating that individuals wear face coverings while in Pennsylvania schools because the order had not gone through rulemaking.