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PA Supreme Court Signals Support for Abortion Rights, But Sends Case to Lower Court

In a 3-2 decision Monday, the state Supreme Court sent a case regarding whether Medicaid should pay for abortions back to a lower court.

In a 219-page opinion, Justice Christine Donohue ordered that the Commonwealth Court, which previously dismissed it, should hear the case, Allegheny County Reproductive Health Center v. PA Department of Human Services, brought by abortion providers. The case challenges a law that prevents Pennsylvania’s Medicaid program from paying for abortions.  However, Medicaid does pay for full-term pregnancy care.

Donohue and Justice David Wecht held that the state’s Equal Rights Amendment protects the right to an abortion. Justice Kevin Dougherty agreed. Justices Kevin Brobson and Daniel McCaffery were not involved in the case.

However, two justices dissented, Justice Sallie Updyke Mundy and Chief Justice Debra Todd.

House Speaker Joanna McClinton (D-Philadelphia/Delaware) said, “Today’s Supreme Court ruling is an important step in reaffirming Pennsylvania’s commitment to personal freedom, including reproductive freedom. With other states chipping away at women’s rights, this is a good decision for all Pennsylvanians, but especially for women, who should have the right to make decisions about their own body, including reproductive decisions.”

However, House Republican Leader Bryan Cutler (R-Lancaster) said the Supreme Court had overstepped its authority.

“Pennsylvania law already allows public funds to be used to pay for abortions in case of incest, rape or to protect the life of the mother. This decision, supported by only part of the seven-member court, eviscerates the past, well-established precedent of the Pennsylvania Supreme Court and opens the door for tax dollars to pay for all elective abortions,” said Cutler.

“Pennsylvania’s Abortion Control Act is the gold standard for a middle ground and compromise over reproductive rights law,” Cutler said. “It was passed with bipartisan support and signed by a Democratic governor. The court opening this law does nothing but further the divide over such a sensitive topic and will only lead to more mischief and bad faith where lawmakers and other elected officials should be leading with respect and understanding.”

Jeremy Samek, senior counsel for the Pennsylvania Family Institute, which filed a friend of the court brief in the case, said, “The good news is that the abortion industry failed to receive a majority of the court ruling to invent a right to an abortion in our state’s Constitution. “The bad news is three justices overruled the longstanding state law – upheld by seven members of the Pennsylvania Supreme Court nearly 40 years ago – that prevents taxpayer funding of elective abortions.”

Michael Geer, president of the Pennsylvania Family Institute, added, “Two of the justices – Christine Donahue and David Wecht – agreed with the abortion industry’s request to declare a ‘fundamental right to reproductive autonomy,’ something not found in the Pennsylvania Constitution. Creating such a sweeping right would have severe implications, including allowing unfettered abortion until birth. Thankfully, this did not gain support from other members of the court.”

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PA House Impeachment Managers Appeal Court Decision in DA Krasner Case

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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Montgomery County Judge Carluccio Launches Bid for PA Supreme Court

It’s not every day that a Montgomery County judge decides to run for the state’s top court.

President Judge Carolyn Tornetta Carluccio announced her candidacy for Pennsylvania Supreme Court this week.

Carluccio, who was elected to the Montgomery County Common Pleas Court in 2009, has served on the family, criminal, and civil court benches. Last year she was unanimously chosen by her peers to serve as the Court’s first female President Judge in county history. She served as president of the 2000-member Montgomery Bar Association in her second year on the bench.

An opening on the court occurred due to the September death of Justice Max Baer.

“Pennsylvanians want their judges to read and apply the law,” said Carluccio, Republican candidate for Supreme Court, “They also want jurists who will bring experience, temperament, and impartiality to our Commonwealth’s highest court.”

“For over a decade, I have had the privilege of presiding over criminal, family, civil and juvenile cases. This diverse court experience can be an asset to Pennsylvanians seeking experienced judges for our highest court,” she said.

Carluccio began her legal career as an Assistant United States Attorney prosecuting large-scale drug dealers, bank robbers, and money launderers. Her work earned her recognition from the United States Secret Service, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, and Firearms.

“Drug dealers are lawbreakers: plain and simple,” continued Judge Carluccio, “I have experience putting dangerous criminals behind bars.  I know what prosecutors need from judges to keep our streets safe.”

Carluccio served as the first-ever female chief public defender for Montgomery County, where she managed a team of 35 staff and attorneys. She was also the chief deputy solicitor for the county and served as the acting director of human resources.

“I was proud to be the first-ever female Chief Public Defender in my county’s history. The position also instilled in me a passion for ensuring those with a diminished voice in our criminal justice system are heard,” she said.

Liz Preate Havey, chair of the Montgomery County Republican Committee, said, “Judge Carluccio is an outstanding and highly regarded judge with well-rounded legal experience and the appropriate temperament to sit on the Supreme Court. Her election as the first female President Judge in Montgomery County and as the next President of the PA Trial Judges Association is a testament to her character and how respected she is by her peers.  I am thrilled she has decided to run for Supreme Court after much encouragement from many attorneys and friends, including me.”

Carluccio earned her B.A. from Dickinson College and her J.D. degree from Delaware Law School. Carluccio’s court admissions include Pennsylvania, Delaware, Eastern District of Pennsylvania, District of Delaware, Third Circuit Court of Appeals, and the United States Supreme Court.

Throughout her career, Carluccio has received many professional awards and commendations for her work, including honors from the Montgomery Bar Association, the Department of the Treasury, the Secret Service, and the DEA.

A life-long resident of Montgomery County, Carluccio is married to lawyer Tom Carluccio.  The couple has three adult children: Andrew, Charlie, and Joseph.

So far, Superior Court Judges Deborah Kunselman of Beaver County and Daniel McCaffery of Philadelphia, both Democrats, have also announced that they are running for the seat.


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PA GOP Wins Case Over Flawed Mail-In Ballots, Handing Chapman a Loss

With the election less than a week away, Pennsylvania’s Supreme Court ruled Tuesday in favor of a Republican bid to keep improperly cast ballots from being counted.

The Republican National Committee (RNC), the state Republican Party and the National Republican Congressional Committee filed a lawsuit last month asking the high court to require ballots without the correct date and any date not be counted. The move was in response to acting Secretary of State Leigh Chapman’s guidance to county election departments to count those flawed ballots, despite an order from the U.S. Supreme Court prohibiting it.

Chapman sent a directive to county election officials saying the high court’s order was “not based on the merits of the issue.”

“It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes,” Chapman wrote in that directive.

“This ruling is a massive victory for Pennsylvania voters and the rule of law,” said Ronna McDaniel, RNC chairwoman. “Following an RNC, NRCC, and PAGOP lawsuit, Pennsylvania’s Supreme Court has made clear that incorrectly dated and undated mail ballots cannot be counted. Republicans went to court, and now Democrats and all counties have to follow the law: this is a milestone in Republicans’ ongoing efforts to make it easier to vote and harder to cheat in Pennsylvania and nationwide.”

According to state law, voters who use mail-in ballots are required to follow rules that say those ballots must be signed and dated on the envelopes. However, the court’s brief ruling said it was divided on the question of whether throwing out the ballots violates federal law. The court ordered Pennsylvania county boards of elections to “segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.”

Speaker of the House Bryan Cutler (R-Lancaster) and House Majority Leader Kerry Benninghoff (R-Centre/Mifflin) issued a joint statement:

“Dates matter, and the dating of important documents has been a critical tool in officiating the legality of documents for centuries. We thank the Pennsylvania Supreme Court for re-confirming what we have said all along: Pennsylvania’s election law is undeniably clear that mail-in ballots and absentee ballots must be correctly dated to be valid.

“We are also glad to see the Pennsylvania Supreme Court order that incorrectly dated or undated mail-in ballots and absentee ballots should be segregated, something we requested the Pennsylvania Department of State advise counties to do weeks ago.

“Today’s decision is not only a win for the plain language of Pennsylvania law, but also for upholding the security and integrity of our elections,” Cutler and Benninghoff said.

Pennsylvania is one of the most-watched states, with the hotly contested race U.S. Senate race between Republican Dr. Mehmet Oz and Lt. Gov John Fetterman, a Democrat. It could determine control of the Senate. While Fetterman had been leading for several months, a Muhlenberg College/Morning Call poll released Tuesday showed the race is now tied.

The RNC is involved in 75 cases of election integrity litigation in 20 states this cycle. This latest victory follows other recent legal wins, including winning a lawsuit against Michigan’s Secretary of State Jocelyn Benson for restricting the rights of poll challengers.

And winning a lawsuit against the North Carolina State Board of Elections’ attempt to restrict the rights of poll watchers.

Chapman did not immediately respond to a request for comment.

However, she did publish an op-ed warning the results of the 2022 midterms might not be known for a few days after the election.

“While we would all like to go to bed on Election Night knowing who won in every race, it will likely take a few days for complete unofficial results,” Chapman wrote.

“An accurate count is paramount and cannot be rushed. County election workers must be given a reasonable amount of time to do their jobs and follow the law. That short interval of time will not be because anything nefarious is occurring; rather, it simply means that the careful, deliberative process and timeline prescribed by Pennsylvania’s Election Code is at work to achieve a thorough count of every eligible vote.

“It takes time to count more than 1.3 million mail ballots. And current election law does not permit counties to begin pre-canvassing these ballots until 7 a.m. Election Day,” Chapman said.

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Bucks County Republican Club Fights for Election Integrity

The Pennridge Area Republican Club takes election integrity seriously.

It has been asking politicians to sign a pledge that includes support for requiring voters’ photo identification, proof of citizenship, proof of residency, and ending no-excuse mail-in ballots, with only absentee ballots as provided in the law before Act 77. It also wants voters to use paper ballots.

At least five state senators, including Republican gubernatorial candidate Doug Mastriano, have signed so far according to Pennridge member Stephen Sinclair. Another 16 state representatives, along with county commissioners and sheriffs, have signed the declaration as well. And a growing number of candidates running for the State House are on board, too.

“One of our local state representatives, Craig Staats, who serves the 145th District (the north and northeast region of Bucks County) has committed to this effort,” Sinclair said.

Club president Kim Bedillion said, “Millions of Americans have lost confidence in the election process. State laws were amended without consent, outside money was used to boost vote counts in certain areas, poll watchers were not permitted access to watch the process, drop boxes went unmonitored, and the list goes on. It is important to our Republic that voters remain engaged in the election process. To that end, we must restore confidence in our elections.”

“Our club members are committed to restoring election integrity to Pennsylvania. Our election integrity committee is meeting with local election officials and law enforcement, petitioning legislators, and recruiting poll watchers. That is part of the DNA of our club. We don’t just complain about a problem. We roll up our sleeves and get to work on the solution,” she said.

Since Pennsylvania adopted Act 77, which permitted mail-in ballots and the state Supreme Court added drop boxes, residents have complained about an opaque process that might be a venue for voter fraud.

At a rally in Wilkes-Barre Saturday night, former President Donald Trump mentioned Act 77 and called on the state legislature to repeal it. He also urged voters to go out in person on Election Day, rather than mailing in their ballots or using drop boxes. Trump rallied in support of Mastriano and Dr. Mehmet Oz, the Republican running for the U.S. Senate.

Although a Commonwealth Court judge ruled Act 77 unconstitutional, the state Supreme Court, which has a 5-2 Democrat majority, overturned that decision.

The Pennridge Republican Club meets the second Wednesday of every month at 7 p.m. at Keelersville Club, 2522 Ridge Road in Perkasie.

On Sept. 14, Diane Haring will discuss how to submit Right-to-Know requests to school districts. Megan Brock, a mother who is fighting Bucks County for documents related to the county’s COVID policy and a possible cover-up, is also expected to talk to the group.

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PA Supreme Court Upholds No-Excuse Mail-In Ballots

The Pennsylvania Supreme Court Tuesday upheld the no-excuse mail-in ballot law, overturning a previous decision by the Commonwealth Court ruling Act 77 was unconstitutional.

In a 7-2 decision, the high court held the state legislature had the power to write election law, which changed a longtime process in Pennsylvania that had required voters to give a valid reason when they wanted to vote by absentee ballots. It also led to ballot drop boxes, which critics have complained brought ballot-harvesting, where people illegally turned in numerous ballots.

Attorney General Josh Shapiro, who is the Democratic candidate for governor, welcomed the decision.

“With this ruling, the court has provided certainty to voters — certainty that however people cast their vote, in person or by mail, it will be counted. After two years of consistent attacks on our election system and our voters, the Pennsylvania Supreme Court stated loud and clear that Act 77, which modernized our election code, is constitutional,” said Shapiro. “We must continue to stand up to attacks by those who want to pick and choose the laws to follow and the votes to count.”

State Sen. Doug Mastriano, the Republican running for governor, could not immediately be reached for comment.

Wally Zimolong, a lawyer involved in the case said, “We are disappointed by today’s ruling. It is an outcome-based opinion used to justify overturning 160 years of judicial precedent and redefining the phrase ‘offer to vote.’ We believe that we made a clear, concise, and constitutional argument that permitting mail-in ballots required a constitutional amendment. The Commonwealth Court of Pennsylvania agreed with our position and, unfortunately, the Supreme Court did not. This is also a reminder that elections matter and changes to Act 77 must be made at the ballot box.”

During a recent DVJournal podcast, longtime GOP political operative Michael Caputo also made the case that the state Supreme Court is playing politics and ignoring the clear language of the law. “We’re going to go through the midterms, I think, with no-excuse mail-in ballots because it took so long for any effective legislative fix. Act 77 needs to be repealed entirely,” Caputo said.

Linda Kerns, a Philadelphia attorney who handles election law cases, said, “Justice (Kevin) Brobson’s dissenting opinion boiled it down to, ‘The majority overruled 160 years of this Court’s precedent to save a law that is not yet three years old.’ I found it peculiar, as did Justice (Sallie) Mundy in her dissent, that the majority spent so much time discussing the so-called popularity of the law and who voted for it or signed it. None of that has anything to do with whether it should survive a challenge under the Pennsylvania Constitution.

“Until now, our Supreme Court has consistently placed a check on the legislature when they tried in the past to expand voting by means other than in person,” Kerns said. “Based on its other election-related decisions, I am not surprised by this ruling but I believe that the Court failed Pennsylvanians in what appears to be a zeal to protect no excuse mail balloting, whatever the cost,” Kerns said.


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GIORDANO: Forget Harrisburg; Hold Krasner Impeachment Hearings in Philly!

My sources in Harrisburg tell me the Select Committee charged with investigating the possible impeachment of Philadelphia District Attorney Larry Krasner is ling up its agenda in an unbiased and precise manner.

And I’ve learned that the very pronounced manner in which the Pennsylvania Supreme Court rebuked Krasner on his vision of the legal use of lethal force by officers in his prosecution of Philadelphia Police Officer Ryan Pownall amplified the charge that Krasner is biased against cops.

Supreme Court Justice Kevin Dougherty, who has deep Philadelphia roots, wrote a special concurrence to the majority opinion and noted that “a special concurrence is unusual. But so is the Philadelphia District Attorney’s office’s prosecution in this case.”  The justice attacked Krasner’s tactics with specific details and concluded Krasner’s work was intended to deprive Pownall of a fair trial.

Even though Krasner doesn’t seem to value impartiality when it comes to the police, I have a plea to make to the Select Committee to ensure transparency and fairness for Krasner’s preliminary impeachment investigation. Hold the impeachment hearings in Philadelphia!

First, Philadelphia is the scene of the carnage that is making national news, and the two Democratic representatives on the committee, Amen Brown of West Philadelphia, and Daniel Burgos of Kensington represent areas particularly hard hit by violence and general lawlessness.

Second, holding hearings in Philadelphia will curtail the Inquirer from making the tired point that these hearings are just political attacks from people with no stake in Philadelphia.

Third, hearings in Philadelphia will allow more witnesses to come forward to talk about the suffering they have experienced due to Krasner perverting the criminal justice system and his oath of office. It would also make it more convenient for Krasner supporters to chronicle their views of his unusual tactics.

Fourth, Philadelphia is the media capital of the state. Hearings here would force them to provide detailed coverage. In other words, Krasner’s media allies due to competition would have to cover it and maybe even show some of the moving testimony of the survivors of crime victims.

Fifth, there is a possibility that Philadelphia hearings might draw protesters that support Krasner and security might be a concern. So, what? Get enough security and support the free expression of Philadelphians.

Sixth, I think the scenario that I’ve set up, would make it much more likely for Krasner to testify. With tremendous media attention and his world-class smugness, Krasner might jump at the chance to tell us exactly what he is doing. If the rest of the state hears some of the highlights of his vision of his oath of office, there might be more understanding of what he has done to Philadelphia and the need for state action to remove him.

Seventh, if the hearings are held here, it raises the issue of public safety and will result in politicians like Philadelphia City Councilpersons Cherelle Parker, Allan Domb, and Helen Gym and supermarket magnate Jeff Brown to state their positions on Krasner and crime as they gear up campaigns for mayoral runs.

Finally, holding the hearings in Philadelphia would put them on the national map as we head to the midterm elections. Inflation and gas prices are the major concerns of most Americans but the issue of their own and their family’s safety is a top-tier concern. Krasner and the other district attorneys supported by George Soros and other progressives are symbolically on the ballot. Based on the recall of the San Francisco district attorney and probable recall of the Los Angeles district attorney, I think people have had enough.

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PA Supreme Court Justice Excoriates Krasner, Alleges Abuse of Grand Jury Process

A justice on the Pennsylvania Supreme Court published a “special concurrence” Wednesday morning excoriating Philadelphia District Attorney Larry Krasner and the conduct of his office regarding the case of a Philadelphia officer who shot and killed a man who fled from a traffic stop.

The nineteen-page filing by Justice Kevin M. Dougherty is a stunning rebuke of Krasner and his methods and comes just as an impeachment effort against the progressive prosecutor has found its footing in Harrisburg.

A request for comment to Krasner’s office from Broad + Liberty was not returned. DAO spokeswoman Jane Roh told the Inquirer that the office would not be commenting on the findings.

Justice Dougherty alleges Krasner lacked candor through many portions of the proceedings, and that he manipulated the grand jury process in unethical ways.

Former PPD officer Ryan Pownall fatally shot David Jones in 2017, when Pownall confronted the man for riding a dirt bike on a city street.

Krasner has since used the case in an attempt to completely overhaul the long-used understanding of Pennsylvania law as to what constitutes the legal use of deadly force by officers.

Judge Dougherty had previously expressed some skepticism about the case, but fully unburdened himself with the Wednesday filing. His writing focused less on the deadly use-of-force issue at play in the actual incident involving Pownall, and focused more about the tactics employed by Krasner and his fellow prosecutors.

“A special concurrence is unusual. But so is the Philadelphia District Attorney’s Office’s (‘DAO’) prosecution in this case. That is why I feel compelled to write separately, unconstrained by majority authorship, to pull back the curtain on some of the concerning irregularities that lurk just beneath the surface of this appeal,” Dougherty wrote.

Justice Dougherty, who has roots in Philadelphia, began by noting that officer-involved shootings erode the trust of the judicial system in the community, but also noted that prosecutors must treat all actors in the court equally and fairly.

“Yet, here, I cannot say the DAO has treated Pownall fairly and equally,” Dougherty said.

“At least three aspects of the DAO’s prosecution give me serious pause: (1) its failure to provide the investigating grand jury with all relevant legal definitions; (2) its successful attempt to deny Pownall a preliminary hearing; and (3) its relentless but unsuccessful attempt to change the peace officer justification law prior to Pownall’s trial.”

The first problem, Dougherty wrote, “implicates a potential abuse of the grand jury process.” According to Pownall’s attorneys, Kranser’s office “intentionally failed to notify the grand jury of the peace officer justification defense,” a part of Pennsylvania law that allows law enforcement officers to use deadly force in certain situations. Krasner believes that law is contradicted by federal law, but that has not yet been held to be the case in Pennsylvania.

A further abuse, Dougherty says, is that having presented the grand jury with only a partial picture of the law they are meant to enforce, Krasner secured an indictment and then unsealed it and released it to the media. “Not surprisingly, multiple news sources reported on the presentment’s one-sided account, with some even making the full document available online for anyone and everyone to read.”

That offense was compounded, Dougherty wrote, with Krasner’s office’s next misstep in denying Pownall a preliminary hearing. “Theoretically, that error could have been remedied by adherence to one of the statutory safeguards embedded in the process: the requirement that ‘the defendant shall be entitled to a preliminary hearing.’ What is troubling is the DAO’s effort to ensure that would not occur.”

Dougherty wrote that the record in the case suggests that this was no mere mistake: “Remarkably,” he wrote, “the DAO appears to have known all this at the time it filed its motion.”

For the third and final issue described by Dougherty, he faults Krasner for “The DAO’s lack of candor with respect to its underlying constitutional claim; and (2) the questionable timing of the motion’s filing and subsequent appeal.”

Dougherty noted that the DAO’s motion in limine — which essentially means a motion outside of the jury’s presence and is often used as a method to exclude evidence that can be presented to a jury — presented “only half the relevant picture.”

“This type of advocacy would be worrisome coming from any litigant…That it was the prosecution’s doing is even more concerning, particularly in light of the motion’s timing[.]”

Dougherty concluded that, “[w]hen combined with the other tactics highlighted throughout this concurrence, a compelling argument may be made that the DAO’s decision to delay Pownall’s trial further by taking an unauthorized interlocutory appeal was intended to deprive him of a fair and speedy trial.”

The sheer scope of the rebuke, combined with the fact it comes from a Democratic Justice on the state’s highest court will no doubt be noticed by Harrisburg Republicans who are campaigning to impeach Krasner for dereliction of duty.

Dougherty, the brother of former IBEW boss Johnny Dougherty, was first elected to the court in 2015.

This is a developing story, and Broad + Liberty expects to add updates later in the day.

Kyle Sammin contributed to this report.

This article first appeared in Broad + Liberty

POINT: What Would Founders Think of Dobbs Decision? James Madison Would Love It

For another point of view see “Counterpoint: What Would Founders Think of Dobbs Decision? Not Much”


When the U.S. Constitution was ratified June 21, 1788, the two men most responsible for its success were Alexander Hamilton and James Madison, who, along with John Jay, wrote “The Federalist Papers.”

Four years later, they had markedly different approaches to interpreting the document they helped create.

Hamilton, perhaps because he wanted a national bank that wasn’t mentioned in the Constitution along with an active central government, came to interpret the Constitution as being open-ended: if something isn’t prohibited by the document, it is allowed — or as he and his Federalist friends might have put it, implied.

By contrast, the Father of the Constitution, James Madison, along with friends like Thomas Jefferson, viewed the Constitution as a limiting document: if something is not expressly stated in the Constitution, it is prohibited.

More than two centuries later, the debate between Hamilton and Madison continues to define the two opposing schools of constitutional interpretation. As of June 24, 2022, when the Dobbs v. Jackson Women’s Health Organization decision was published and Roe v. Wade was overturned, it’s clear Madison won.

One of those schools, and the one that prevailed in the Dobbs decision, is referred to as textualism or, as it is sometimes called, originalism. Madison would have argued for textualism/originalism by describing what we usually do when we look at words and try to figure out their meaning. The textualist/originalist approach first asks judges to apply the text — do what the words say. But it recognizes words can be unclear when applied to varying circumstances. In that event, the originalism part of the approach says to look beyond the words but only to ask what was intended by those who chose — and those who ratified — those words. They can tell you what they meant.

The second school of constitutional interpretation, the Hamilton method, goes beyond limiting rights to what was said and what was intended. This approach, which could be called the Humpty Dumpty school of constitutional interpretation, was best expressed by Humpty himself. You will recall Alice asked him in “Alice in Wonderland” “whether you can make words mean so many different things.” Humpty’s response was that words were not his master. Instead, he said that when he uses a word “it means just what I choose it to mean — neither more nor less.”

Now it was conceded by Justice Harry Blackmun in his majority opinion in Roe v. Wade that there were no constitutional words expressly conveying a right to abortion or even any suggestion of an original intent to convey such a right. But, the words were not going to be his master. Instead, he agreed with Humpty Dumpty that it was permissible to shift meanings and invent a constitutional right to an abortion. The lack of an expressed instructional prohibition on abortions was claimed in Roe to permit the finding of a constitutional right to abortion.

It was the Humpty Dumpty logic of Roe v. Wade that led the majority in Dobbs to decide that the question of abortion in our country had a great fall and could not be put together again. Instead, the Dobbs court, recognizing the lack of a constitutional basis for the Roe decision, returned the issue of abortion to the state for legislative resolution.

The Dobbs majority said legislators have to put this together.  James Madison would have approved.


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PA Supreme Court Declines to Hear Ballot Case, Miller Sworn-in For DASB Seat

Margie Miller, a Republican, was elected to a seat on the Downingtown Area School Board in November. She was finally sworn in at a meeting on Wednesday, March 2.

The delay was caused by a court challenge by her Democratic opponent, Rebecca Britton, over six ballots.  Last week, the state Supreme Court refused to hear that case. That opened the way for Miller to take her seat on the board.

“The Pennsylvania Supreme Court ruling certified my election, and solidified the fact that the people of Region 4 have spoken,” said Miller. “I am very excited to begin working with the other eight directors on the DASD School Board.

“The trajectory of this election and the fact that I am being seated four months after Election Day underscores the necessity of an audit,” Miller said. “Mail-in ballots serve a legitimate need. Their validity is obviously still very much in question.

“My personal hope is that the chain of events following this past election in the school director race may serve to assist a future election decision. I am honored and humbled to have been elected to serve the people of Region 4 in the Downingtown Area School District.”

Michael Taylor, the solicitor for the Chester County Republicans, said the court’s refusal to take up Britton’s appeal meant Miller was certified as the winner.

Taylor previously said a Commonwealth Court panel of judges had correctly “affirmed the decision of the Chester County Board of Elections to disqualify the six ballots.”

While a recent ruling had three different opinions, a majority of the judges ruled the ballots should be thrown out, he said.

Britton said, “The Supreme Court ruling is disappointing. There are 67 counties in Pennsylvania.  If each county can draw arbitrary conclusions regarding which votes can be counted then our democracy is unprotected and fragile. In this case, we will never know who the six votes were cast for and the courts missed an opportunity to create clarity where the law was open to interpretation. This is not a partisan issue; this is an ‘every voter’ issue.”

She added, “I wish Mrs. Miller well during her tenure representing Region 4.”


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