Saturday, November 19, 2016

Commonwealth Court

I think I have finally decompressed. The Municipality of Mt. Lebanon v Elaine Gillen and the Pennsylvania Office of Open Records oral argument was heard in Commonwealth Court on Monday, November 14.

I had never been in Commonwealth Court before. On a side note, I had never been in Common Pleas Court either. The courtroom which was used for the argument was the Supreme Court Room. It is spectacular.

We were number six or seven on the Court Calendar to go before a panel of three Commonwealth Court judges who came from Harrisburg and Philadelphia. No judge from Mt. Lebanon this time around! Before anyone asks, I do not know who the people were from Mt. Lebanon or recognized Mt. Lebanon School District's attorney for the School District case. They were last on the schedule and I left after we were finished.

I had to chuckle when I compared how Mt. Lebanon's commissioners run citizen comments vs. how the Commonwealth Court president handled the cases. Each side was permitted eight minutes for oral argument. Appellants were heard first and had to state if they wanted to reserve two minutes of their time for a rebuttal after the appellees' eight minutes. The Commonwealth Court President had a kitchen timer and would ignore the beeper if they had asked questions and/or would permit both sides to continue their arguments if they were in a middle of a thought. It was very civilized. No interruptions like our power hungry, ego-inflated commissioners handle citizen comments, unless you are Michalina, who is allowed to continue when the clock runs out.

I wish Cori Vipperman attended the argument. She would have crawled under the chair when the one senior judge interrupted MTL's counsel and said in so many words, "Please don't tell me that you think people felt threatened by someone who is against killing deer." The solicitor said that Judge O'Brien had already thrown that out in the lower court. Cori Vipperman email

I thought I would have seen Dave Franklin there, since he was willing to reach out to the Solicitor with the case. He encouraged the commissioners to appeal the Office of Open Records' decisions. Dave Franklin email See Dave? It isn't about intimidation or cyber bullying. Judge O'Brien ruled that the commissioners who were against it, were not in any danger. Their addresses were public information. Nobody "drove by their homes ...and perhaps worse." Whatever that means.

I don't know when a decision will be made. It could take several months. The next level would be to go before the State Supreme Court, IF the State Supreme Court would hear the case. Since Mt. Lebanon has endless amounts of money, the little person doesn't stand a chance.


Anonymous said...

Did the school district attorneys cover up the picture of Moses with the Ten Commandments on the ceiling during the hearing?

Jason Margolis said...

Millage increases to fight transparency and kill deer to cause more car accidents and bloody the community. Awesome!!! Things are really looking up, Lebo!!

Anonymous said...

Is it ethical for an attorney to offer his professional opinion on his employer's network ? Mr. Franklin is not with Mr. Weis' law firm.

Anonymous said...

Mr. Franklin is affectionately known in certain circles as the sixth commissioner.

RG said...

Dateline: Harrisburg, 21 November 2016
In an ironic development at the state level Pennsylvania Governor Tom Wolf has vetoed a bill that would have barred public officials from releasing the names of police officers involved in shootings of civilians for 30 days or until an internal investigation was completed. “"..government works best when trust and openness exist between citizens and their government, and as such, I cannot sign into law a policy that will enshrine the withholding of information in the public interest.",” said Wolf. (Source: Pennsylvania Governor Vetoes Bill To Keep Names of Police Officers in Shootings Secret - from the Reason Foundation.)

Regardless of how one may feel about it, given that our Democratic Governor has come down on the side of transparency in such a volatile circumstance as police shooting civilians it makes the lack of transparency in Mt. Lebanon's local deer cull seem ridiculous.

E. T. Gillen said...

Judge Nauhaus did refer to Amy Castor's case as a "tempest in a teapot." As I said earlier, the senior Commonwealth Court judge interrupted MTL's counsel and said in so many words, "Please don't tell me that you think people felt threatened by someone who is against killing deer." The solicitor said that Judge O'Brien had already thrown that out in the lower court. Judge O'Brien noted that the opposing commissioners' addresses were public and they were not threatened or harassed. The whole thing seems ridiculous, but Mt. Lebanon has a sweet deal with Buchanan Ingersoll, so they don't care. The decision should be made just in time for DeNicola to start shooting deer. If the Court rules in my favor, the commissioners will appeal to the State Supreme Court, just to get in another season of killing.

E. T. Gillen said...

They have to protect those twelve private properties, not protect the other 11,000 or so other private properties.

E. T. Gillen said...

RG, I was reading the July 20, 2016 Deer Management Update and noticed that the Commission acknowledges that the deer feeding ban is a violation of the Fourth Amendment.

"Ban on Deer Feeding: Ordinance #3212, enacted in June of 2012, prohibits the feeding of deer. Enforcement is limited because of fourth amendment rights and principally relies on residents to notify the municipality of violations."

RG said...

For those youngsters out there who may never have been exposed to the Constitution of the United States and its subsequent Bill of Rights, either in school or at home, the Fourth Amendment to the Federal Constitution of 1787 reads as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Because of this amendment a "snitch policy" is necessary for the municipality to begin the process that would allow its agents to come onto one's property. In the case of feeding deer this is likely, in the municipality's eyes, more trouble than it's worth, and a waste of police and judicial resources - although I could be wrong.

A couple of years ago I suggested to the commissioners that it would be a good idea to review the municipality's various laws with an eye to getting rid of those that were outdated, illegal(!), or unenforceable (an unenforceable law being a mockery to the judicial process!). I also suggested that every new law passed come with an automatic "sunset" provision; if the law was working a subsequent commission could renew it; if not it could die an unceremonious death. I received one reply saying, in essence, that I had a pretty good idea. Then that commissioner went back to sleep.

Anonymous said...

"[T]he Commission acknowledges that the deer feeding ban is a violation of the Fourth Amendment."

No they don't. They say it's difficult to enforce because of the Fourth Amendment.

But lots of laws are similar. Let's say I had a collection of White Rhino horns. Or say I had a stove top still for my own consumption. Look how long it takes for police to uncover animal horders, cases which frequently lead to animal abuse charges. Police frequently rely on nosy neighbors to create probable cause.

RG said...

While we're on the subject of private property rights, there are two prevailing views concerning it:

1. "The theory of Communism may be summed up in one sentence: Abolish all private property." ...Karl Marx

2. The Pilgrims and Property Rights. Be sure to watch the video; it's both funny and educational.