DV Journal

A Commonwealth Court judge declared the state’s system of school funding unconstitutional on Tuesday. Surprisingly, voices on both the right and left are declaring it a victory.

The education clause in the state constitution mandates “every student receive a meaningful opportunity to succeed academically, socially and civically,” Judge Renee Cohn Jubelirer wrote. “That requires that all students have access to a comprehensive, effective, and contemporary system of public education…Students who reside in school districts with low property values and incomes are deprived of the same opportunities and resources as students who reside in districts with high property values and incomes…students in low wealth districts are being deprived of equal protection of law.

“All witnesses agree that every child can learn. It is now the obligation of the legislature, executive branch, and educators, to make the constitutional promise a reality in this Commonwealth,” Jubelirer wrote in her 786-page opinion.

The case was brought in 2014 by school districts with the William Penn School District as the lead plaintiff along with parents and public interest groups. At the crux was the claim students in poorer districts were not receiving the education guaranteed them under the state constitution. Pennsylvania school districts are funded primarily through property taxes with additional funding from the state and federal governments.

“In a historic victory for students, a judge has declared Pennsylvania’s school funding system unconstitutional,” The Public Interest Law Center in Philadelphia, which represented the plaintiffs, said in a statement. “We proved that the students who need the most have the least because the state shortchanges low-wealth communities. It’s time to change that.”

Democrats in the Pennsylvania House praised the decision.

“Today, we celebrate a historic decision that paves the way to honor Pennsylvania’s commitment to our children, our communities, and the future of our commonwealth,” said Nicole Reigelman, spokesperson for the House Democratic Caucus. “For too long, schools in our most underserved communities were shortchanged, and we failed to meet our moral and constitutional obligation to our students, communities, and our shared future. We can’t undo the years of insufficient funding, but as a result of this historic decision, the future is brighter for our students and our communities.”

As Attorney General, Josh Shapiro filed an amicus brief on behalf of the lawsuit challenging the state’s education funding system. As governor, however, he offered a more measured response than some of his fellow Democrats, saying his administration will have to review the ruling.

But he echoed his previous statements. “I believe every child in Pennsylvania should have access to a high-quality education and safe learning environment, regardless of their Zip code.”

Pennsylvania ranks in the top 10 for per-pupil spending on public schools, averaging $17,142 per student. That is significantly higher than the national average of $13,494. Conservatives use that figure to argue the problem isn’t funding, but how and where the tax dollars are spent. Judge Jubelirer specifically ruled that the solution doesn’t have to be more spending overall, just that the school system meet the state’s constitutional mandate of the opportunity to succeed.

Which is why some on the right are declaring the ruling a victory for school choice.

“Commonwealth Court Judge just ruled we need more school choice in the Commonwealth of Pennsylvania to ensure every child has the same opportunities no matter their ZIP code! Huge school choice victory!” tweeted Rep. Seth Grove (R-York).

“The court is right to affirm that the current system of education funding is flawed—but thankfully stopped short of mandating more money to a broken system, and left it to the legislature and executive branches to find a solution,” added Nathan Benefield, senior vice president of the Commonwealth Foundation, a free market think tank. “The only way to ensure that ‘every student receives a meaningful opportunity’ is for education funding to follow the child. Students that are trapped in their ZIP-code assigned school—especially in low-income and minority communities—often have no alternatives when their academic or social needs are unmet.”

Senate Majority Leader Joe Pittman (R- Armstrong/Indiana/Jefferson/Westmoreland) said his caucus “is committed to prioritizing education empowerment and access for students across Pennsylvania, as is evidenced by a historic level of investment in public education included in the current 2022-23 and prior state budgets. Our system has always sought to support state and local taxpayers, whom we will continue to respect moving forward as we address all needs of the commonwealth.”

Guy Ciarrocchi, former president of the Chester County Chamber and a Republican who ran for Congress said, “Whenever we talk about students, our focus should be whether they are succeeding—learning the information and skills to succeed. All too often, the politicians fight about money and power. Why don’t they ever talk about whether the schools are working? Let the money follow the students. Then parents will make sure money gets to schools that work.”

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Impeached Philadelphia District Attorney Larry Krasner is not out of the woods yet.

On Thursday impeachment managers state Reps. Craig Williams (R-Delaware/Chester) and Tim Bonner (R-Mercer/Butler) said they are filing an appeal to the Pennsylvania Supreme Court from the Commonwealth Court’s Dec. 30 decision.

Krasner appealed his impeachment to Commonwealth Court, raising three objections.

The Commonwealth Court rejected two of three objections but upheld a third, finding that the state Senate was not the venue to try Krasner because the allegations did not meet the standard of “misbehavior in office.” But the court did not hear the evidence against Krasner presented during his impeachment.

“The Commonwealth Court never discussed the facts laid out in the articles of impeachment,” said Bonner. Instead, the Commonwealth Court said, any action “must come through the Pennsylvania Disciplinary Board, mischaracterizing the true purpose of an impeachment proceeding.”

However,  both the Senate and the Disciplinary Board could take action, he said.

Williams, a former federal and military prosecutor, explained that Krasner’s acts meet the definition of misbehavior in office.

“There was no analysis whatsoever (by the court),” said Williams. He then discussed Krasner’s handling of a 2017 police shooting case, saying it was a prime example of Krasner’s misbehavior in office. In that case, Krasner used a grand jury to bring charges against Officer Ryan Pownall, although an internal investigation found Pownall acted properly to defend his own life and that of others under state law.

Krasner withheld exculpatory evidence during the litigation, Williams said. When the state Supreme Court eventually reviewed the case, Justice Kevin Dougherty writing separately, excoriated the egregious misconduct by Krasner’s unlawful prosecution of Pownall. The trial court later confirmed this misconduct after hearings and a confrontation with the DA’s office. The case was eventually dismissed.

“In all my time as a prosecutor, I have never seen such deplorable conduct by someone charged with representing the safety and interests of the public,” Williams said. “Misleading the grand jury about the law; hiding that fact from the supervising judge; circumventing due process rights to a preliminary hearing to further hide misleading the grand jury; seeking impermissible appeal to the Supreme Court to retroactively make unlawful what was lawful when it was done; and concealing exculpatory evidence.  All of these actions separately constitute misbehavior in office.  Together, they are evidence of improper or corrupt motive in depriving Officer Pownall of his constitutional rights to liberty.”

During the impeachment process, the House heard from many crime victims who complained about their treatment by Krasner’s office. Krasner, a former defense lawyer, was twice elected as a progressive prosecutor, promising to bring social justice principles for defendants.

Krasner did not respond to a request for comment Thursday.

The Senate had set Jan. 18 as the date for the Krasner impeachment trial. However, faced with the Commonwealth Court ruling it put the trial on hold. Asked if the Senate still plans to try the Krasner impeachment case, a spokeswoman said it has a constitutional duty to do so.

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America’s Founding Fathers wisely embedded checks and balances into our constitutional republic’s governing structure. They encouraged the courts, for example, to check the abuses and overreach of the legislative and executive branches.

During the COVID-19 pandemic, we witnessed government and teachers union overreach normalized, particularly in education – with the over-sexualization of curriculum, placement of pornographic books in middle school libraries, drag shows at elementary schools, mask mandates, free water ice and cash payments for vaccination, puberty blockers, boys competing in women’s sports, and DEI/CRT. The importance of checks and balances by the legal system and by parents has become acutely clear.

Parents instinctively know the importance of addressing discipline issues with their children, even after the fact, and even when the person who raised the issue may only be indirectly involved. Why? Because it does not matter who raised the issue, wrong is wrong. Nor does it matter if the wrongdoing is no longer occurring, wrong is wrong. Addressing the bad behavior is not moot, and if not dealt with it will occur again. Ignorance is implicit enablement.

Given this backdrop, it is particularly frustrating that the Pennsylvania Commonwealth Court has, for the second time this year, dismissed complaints brought by parents, failing to rule on the substance of each lawsuit.

Will this failure have an impact on children? Parents and educators have spent the last three years predicting the harmful effects of the delusional fear mongering that caused useless masking, school closures, and the particularly destructive “virtual learning.” Validation of those predictions has come in the form of decreasing academic achievement scores.

“This is the fifth consecutive year of declines in average scores, a worrisome trend that began long before the disruption of the COVID-19 pandemic, and has persisted,” said Janet Godwin, the CEO of the ACT.

Earlier this year, the court dismissed a case brought by parents demanding compliance with Pennsylvania’s requirement for 180 days of in-school instructional learning. At the time, school districts knew using virtual learning was illegal, but they did it anyway.

How do we know it was illegal? Mark Hoffman, executive director of Bucks County’s Intermediate Unit stated in a July 6 email to all 13 Bucks County superintendents, “No authority yet granted to PDE [PA Dept of Edu] to issue waiver for 180 day school year,” and “Hybrid options and staggered schedule options are NOT legal as of today,” and “Research provided by PDE that offers suggestions for hybrid options are NOT currently legal options as school code currently stands.”

The court did not rule on the substance of the complaint, but rather tossed it – twice – ruling that parents do not have standing to bring such a complaint. Perhaps they overlooked that parents, via school real estate taxes, fund nearly 100 percent of the costs that provide those 180 days of education.

Then on December 1, the Commonwealth Court tossed another parent-led lawsuit which asked the court to declare Pennsylvania’s secretary of education was wrong to advise school districts that they had the authority to mandate masks. Yes, you read that correctly, the secretary of EDUCATION, not the Secretary of HEALTH. Oddly enough, this time last year, the same Commonwealth Court declared then-Sec. of Health Alison Beam’s statewide masking order void ab initio (void from the beginning). Beam was fired after the ruling and – shocker – was hired by UPMC as a government liaison.

The court held the “guidance” issued to school superintendents by the secretary of education “was not an order, directive requirement, or mandate requiring” Pennsylvania school districts “to implement masking mandates within their schools.” Accordingly, the court found that any order it would issue would amount to an “advisory opinion.” Oddly enough, that advisory opinion is exactly what the Complaint demanded, and is exactly the job of the court – to interpret the law.

The court also ruled the complaint was moot because the school districts had already made masks optional. The court ignored the argument that districts’ Health and Safety Plans continue to this day to have language enabling mask mandates to be reinstated at any time in the future.

The complaint cited the expressio unius est exclusio alterius doctrine – a Latin phrase meaning the inclusion of specific powers to one government agency implies the exclusion of such powers to other agencies. Because the legislature delegated disease control to the Department of Health, the Department of Education has no power to govern disease control.

Abdicating its responsibility to determine constitutionality, the court did not rule on the substantive issues brought by the parents in either complaint. That is literally their job. Parents and students deserve better.

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It’s still in the box, hidden from the triggered gaze. The only ones who would know what lies inside the wooden slabs painted in the colors of the Italian flag are indigenous to Philadelphia, pun intended. It is the statue of an Italian icon, Christopher Columbus, a piece of public art that sat undisturbed for over 40 years in its current location at the southern end of Broad Street on Marconi Plaza.

But a couple of years ago and in the wake of the George Floyd riots, a group of progressive activists in the city decided to wage war against the statue and its significance, arguing that Columbus was a genocidal colonizer and should not be given a place of honor in a newly “woke” metropolis such as Philadelphia.

And so, the city tried to pull down the statue, with the charge led by the current mayor and South Philly native, Jim Kenney. He said, “The Christopher Columbus statue has been a source of controversy.” He immediately jumped to accusing the Italian explorer of being a sadistic maniac, alleging that, “Columbus enslaved indigenous people and punished those who failed to meet his expected service by severing limbs, or in some cases, murder.”

There is very little evidence of this homicidal intent on the part of the sailor from Genoa. In fact, there is a larger body of scholarship that establishes exactly the opposite. My friend and fellow attorney noted Columbus scholar Robert Petrone, has recorded an entire series of lectures regarding the history of Columbus entitled “Christopher Columbus University” which can be accessed here:

But truth has never been a priority for the Kenney administration, which has taken its cue from the most radical and partisan advocates for all sorts of social justice initiatives like open borders, the elimination of cash bail, a criminal justice overhaul that would empty the jails, and attempts to hijack the fair and balanced teaching of history in public schools. To appease this diverse group of malcontents, Kenney ordered the removal of the statue which had been gifted to the people of Philadelphia in the mid-1800s.

Unfortunately for the mayor, he had no idea of the passion and the resolve of those like attorney George Bochetto, who agreed to oppose the statue’s removal in court. Bochetto, who I supported in his recent run for Senate, conducted most of his work pro bono because as he told me when I interviewed him on the Chris Stigall radio show last year, “Anybody that knows the history of Columbus Day knows that its origination was with the New Orleans lynching of nine Italian American immigrants in a savage, savage lynching…and it divided the country so deeply that Congress insisted on enacting Columbus Day in honor of Italian Americans, and Christopher Columbus, and the achievements that Italian Americans have brought to the community.” You can access that interview here:

From the beginning, the supporters of Columbus, among which I count myself, made it clear that we were not attached to a simple statue because it was a piece of significant public art. The meaning of the monument transcends the stone and the carving. It represents the struggle and the glory of a heritage that has contributed so much to this nation. The attacks on the statue and the figure of Columbus are justifiably seen as a direct attack on Italian Americans.

For that reason, and that reason alone, Bochetto and his legal team, supported by a large group of sympathizers in a galvanized Italian American community, fought against Mayor Kenney and his administration’s attempt to erase that history and replace it with something designed to please our critics. Columbus Day was removed from the city calendar and rebaptized as “Indigenous Person’s Day.” When a lower court held that it was improper for Kenney to try and remove the statue, his administration appealed the decision to the Commonwealth Court.

On Friday, that court ruled against the city and ordered it to remove the wooden box that had been spitefully erected two years ago to hide Columbus from public view. As of this writing, the box is still there. But barring any appeals to the state Supreme Court, which are possible given the predisposition of this mayor and his administration to fight tooth and nail against the Italians of this city, the statue of a man who played a key role in opening the door to the west, and to our destiny, will finally see the light of day.

It is shameful that it took this long for justice to be served, but the length of the journey only enhances the sweet taste of victory.

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Opponents of Pennsylvania’s entry into the Regional Greenhouse Gas Initiative (RGGI) are celebrating after the Commonwealth Court granted an injunction Friday suspending the state’s implementation.

“This delay is an important, much-needed step for Pennsylvania residents and businesses,” says Pennsylvania Chamber of Business and Industry President and CEO Luke Bernstein. “We appreciate the court pressing pause on this policy, which threatens to significantly increase energy prices at a time of high inflation, while also pushing more economic activity to states on our grid who are not in RGGI.”

Bernstein says businesses and families are already facing high energy prices due to a lack of supply and infrastructure.

“This is an opportunity for policymakers to embrace abundant domestic energy production, facilitate building new infrastructure, support competitive markets, and set long-term policies that encourage innovation.”

The National Federation of Independent Business (NFIB) is also concerned that Pennsylvania’s participation in RGGI, not to mention the Wolf administration’s unilateral and unconstitutional push to put the state in RGGI without going through the legislature.

“NFIB is thrilled the Commonwealth Court of Pennsylvania has granted a preliminary injunction to Gov. Wolf’s unconstitutional energy tax,” said Greg Moreland, NFIB Pennsylvania’s state director. “For years, our members have complained about rising energy costs, and with inflation at 8.6 percent, RGGI may have been the nail in the coffin for energy-intensive small businesses.

Like the state Chamber, NFIB Pennsylvania hopes the governor will come to the table and negotiate with the legislature.

“We all want a clean environment,” says Moreland. “We just have different beliefs on how to achieve that goal.”

Gordon Tomb, Senior Advisor for the CO2 Coalition, says schemes such as RGGI do little more than transfer wealth from taxpayers and consumers to the special interests of wind and solar.

“Technologies that are expensive and unreliable,” adds Tomb.

Pointing to a recent Caesar Rodney Institute analysis, Tomb says billions of dollars have been poured into these so-called green energy sources with the only reduction in CO2 emissions coming from the expanded use of natural gas.

“As providers of energy and as stewards of the environment, RGGI’s favored technologies are abject failures.”

RGGI bills itself as a cooperative, market-based effort among northeast and mid-Atlantic states to cap and reduce CO₂ emissions from the power sector.

“It represents the first cap-and-invest regional initiative implemented in the United States,” RGGI boasts on its website.

Wolf has wanted Pennsylvania in RGGI for years. As of 5 p.m. Friday, Wolf had not issued a press release or tweet about the Commonwealth Court injunction. However, he has stated on several occasions that state participation in RGGI is needed to help combat man-made climate change.

“Climate change is the most critical environmental threat confronting the world, and power generation is one of the biggest contributors to greenhouse gas emissions,” Wolf said in 2019 after an executive order instructing the Pennsylvania Department of Environmental Protection (DEP) to join RGGI. “Given the urgency of the climate crisis facing Pennsylvania and the entire planet, the commonwealth must continue to take concrete, economically sound, and immediate steps to reduce emissions, (so), joining RGGI will give us that opportunity to better protect the health and safety of our citizens.”

Pennsylvania Manufacturers’ Association (PMA) filed a friend of the court brief in Commonwealth Court saying Governor Wolf’s carbon tax on Pennsylvania energy generation will “irreparably damage” the state’s manufacturing, industrial, and commercial base.

“The new tax, pursued over the objections of the General Assembly, will also result in sharp increases in energy rates for consumers,” the groups noted.

Even unions have expressed concerns about RGGI.

“Thousands of blue-collar, union workers who build, operate, and maintain those plants will be lost,” says the Power PA Jobs Alliance, a coalition of labor, management, and consumer stakeholders that oppose state proposals that impose carbon dioxide emissions taxes. “Nearly 100 percent of CO2 reductions from Pennsylvania power plant closures will be offset by increased CO2 emissions in non-RGGI states, like Ohio and West Virginia, which will absorb Pennsylvania generation, emissions, and jobs into those states whose plants are not subject to the tax.”

As for Wolf’s argument that RGGI is necessary to combat climate change, Tomb disagrees.

“There is no climate emergency, and the theory that we are somehow threatened by carbon dioxide emissions is absurd on its face,” said Tomb. “Carbon dioxide is a harmless gas that each of us exhales on a daily basis, about two pounds of it on a daily basis, so it is ridiculous.”

The CO2 Coalition examined the governor’s proposal for RGGI and found that there was no scientific basis for it.

“Number one, there is no threat from carbon dioxide or whatever to the climate,” Tomb said. “Secondly, even if there were, the governor’s proposal RGGI would have virtually zero effect on the weather.”

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The citizen-drawn congressional redistricting map received a resounding endorsement when Commonwealth Court Judge Patricia McCullough recommended to the Pennsylvania Supreme Court that it be used in the upcoming election.

We couldn’t agree more with Judge McCullough’s decision on the map, introduced as House Bill 2146, and strongly urge the state’s highest court to follow her recommendation.

In her 228-page report, which critiqued all map submissions, McCullough wrote that the citizens’ map “meets all of the traditional criteria of the Free and Equal Elections Clause, and does so in respects even noted by the governor’s expert, as well as the other considerations noted by the courts, it compares favorably to all of the other maps submitted herein, including the 2018 redistricting map, it was drawn by a non-partisan good government citizen, subjected to the scrutiny of the people and duly amended, it creates a Democratic leaning map which underscores its partisan fairness and, otherwise, is a reflection of the ‘policies and preferences of the state, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature.’”

The submissions included maps from the governor and House Democrats, neither of whom attempted to move their maps through the proper channels of the legislative process.

The history of the citizen-drawn map goes back to July 2021 when the House State Government Committee kicked off the most transparent, citizen-driven congressional redistricting process in the history of our Commonwealth with the first in a long series of hearings. Over the next few months, the committee went to the people all over the state to receive their input on congressional districts. It also opened the actual map-making to citizens and, in the end, selected a map drawn by Lehigh Valley resident Amanda Holt.

Unfortunately, Gov. Tom Wolf swiftly vetoed the map, even though he declined to take part in the Legislative-led redistricting process, after it was passed through the General Assembly.

We weren’t the only people to be left scratching our heads on why the governor vetoed the map. McCullough was also apparently puzzled, writing in her report “although Gov. Wolf vetoed House Bill 2146 and that bill never obtained the official status of a duly enacted statute, neither Wolf nor any other party herein has advanced any cognizable legal objection to the constitutionality of the congressional districts contained therein.”

The State Supreme Court has an opportunity to right the governor’s wrong and we truly hope the justices seize the opportunity.

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The Commonwealth Court Friday ruled that Pennsylvania’s no-excuse mail-in voting law, Act 77, is unconstitutional.

In addition to striking down the law, the court ordered the acting secretary of state not to enforce Act 77.

The 3-2 ruling found the law, which permitted no-excuse absentee voting, while ending straight-ticket voting, violated the constitutional requirement of “the physical presence of the elector.” The judges found the legislature could not make changes to voting laws without amending the state Constitution.

Attorney General Josh Shapiro, a Democratic candidate for governor, said he will appeal the decision.

Pennsylvania Attorney General Josh Shapiro

“This opinion is based on twisted logic and faulty reasoning, and is wrong on the law,” said Shapiro, who is also the presumed Democratic candidate for governor. It will be immediately appealed and therefore won’t have any immediate impact on Pennsylvania’s upcoming elections. The issue will now go before the Pennsylvania Supreme Court, and we are confident in the constitutionality of Act 77.”

Gov. Tom Wolf agreed, saying, “The administration will immediately appeal this decision to the state Supreme Court and today’s lower court ruling will have no immediate effect on mail-in voting pending a final decision on the appeal.

An appeal has already been filed, triggering an automatic stay that keeps the law in place during the appeal process.

“The Republican-controlled legislature passed Act 77 with strong bipartisan support in 2019 to make voting more safe, secure, and accessible and millions of Pennsylvanians have embraced it,” Wolf said.

He accused Republicans who opposed Act 77 of “trying to silence the people.”

Sen. Jake Corman

Pennsylvania Republicans, however, were thrilled. And they used the ruling to criticize the Wolf administration’s execution of the law.

“There have been numerous concerns raised about the way Act 77 was implemented by the Department of State, especially the double standard created by the removal of key mail-in ballot security measures in lead-up to the 2020 election,” said Senate President Pro Tempore Jake Corman (R-Bellefonte). After what occurred in the 2020 and 2021 elections, I have no confidence in the no-excuse mail in ballot provisions. There is no doubt that we need a stronger election law than the one we have in place today.

“Today’s ruling should serve as a call to action to open up a serious conversation about the reforms necessary to make voting both accessible and secure for all Pennsylvanians. Gov. Wolf has ignored this debate for over a year, but hopefully this ruling will help bring him to the table so we can address concerns about our election system once and for all.”

Corman plans to introduce a bill with voter ID, eliminating straight-party voting and ending drop-boxes, as well as banning outside money to fund elections, which was done by Mark Zuckerberg in key areas of Pennsylvania in 2020.

Bill McSwain

Republican Bill McSwain, the former U.S. Attorney for eastern Pennsylvania running for governor castigated those who supported Act 77, including his Republican primary opponents.

“Act 77 has wreaked havoc across our state and robbed voters of confidence in their elections. Any politician who supported this unconstitutional bill on either side of the aisle is unqualified to be governor,” said McSwain. “As U.S. Attorney and as a candidate for governor, I have consistently called Act 77 unconstitutional, and applaud the Commonwealth Court for recognizing it as such.”

Lou Barletta

Former Congressman Lou Barletta, another gubernatorial candidate, promised to repeal Act 77 if it remains on the books after appeals are exhausted.

“Now we know that not only was Act 77 a terrible law, it was also unconstitutional and shouldn’t have been passed in the first place,” said Barletta. “Most states that go to widespread mail-in voting take years to implement the process, but in Pennsylvania, we went from under 300,000 people voting by mail in 2016 to over 2.6 million in 2020. Local elections officers weren’t trained, equipped, or staffed to handle the flood of ballots and the result was the chaos that we all saw.”

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