This month, the Court issued 9 opinions and 4 allocatur grants. On the opinion side, McLinko, which is the latest in legal challenges to Pennsylvania's 2020 mail-in voting legislation, has likely grabbed the most headlines. For the uninitiated, the legislation was initially the product of all-too-rare bipartisan compromise in the General Assembly between the Republican caucus, who wanted to bring an end to straight-ticket voting that it believed advantaged Democrats, and the Democratic caucus, who wanted to make the franchise more accessible for populations that are often unable, and in any event, less likely, to show up to vote on election day, a circumstance that traditionally benefitted Republicans.
After certain candidates for office in the 2020 election began raising doubts about the integrity of the process (with varying degrees of credibility), parties began challenging the law on various grounds, including on the ground that it violated a constitutional provision providing for absentee ballots. Although a textual reading of the provision suggests no conflict -- in that both mail-in and absentee ballots can coexist peacefully -- the challengers relied on (1) a Civil-War era decision finding that legislative efforts to allow Union soldiers to mail in ballots in lieu of putting down their rifles, ceding Antietam Creek, and returning home (Johnny Reb in tow) to vote for county commissioner unconstitutional; and (2) subsequent revisions to the absentee ballot provision using similar language to argue that what was applied during the Siege of Shiloh was good for the Lockdown of 2020. Although there were certainly arguments on either side as to whether and to what degree the precedent was incorporated into subsequent legislative enactments, the Court found no constitutional violation. And in this author's opinion, Justice Wecht in concurrence put the crux of the case succinctly: "The contest between a requirement that may have been sewn into the fabric of the Constitution by the function of time or consistent legislative action and the document's plain language is no contest at all."
On the allocatur side, I'm most interested in In the Interest of K.T. In that case, the Court appears poised to offer some clarification for the analysis of parent-child bond (or lack thereof) that is a prerequisite to the termination of parental rights. From county to county, and courtroom to courtroom, judges apply its two components -- the existence of a parent-child bond and the degree to which severance would cause a child harm -- with various degrees of ambiguity and weight. At one extreme, a judge may reason that the existence of a parent-child bond at all is a disqualifying factor to termination. At the opposite end, a judge may reason that no matter the degree of a bond, so long as it can be severed without eternally irreparable harm to the child, termination is warranted. Discretion is a heck of a thing, and hopefully the Court will shed some additional light.
McLinko v. Commonwealth, 14 MAP 2022 et al. (Opinion by Donohue, J.) (holding Pennsylvania's mail-in voting law does not violate constitutional provisions arguably limiting absentee voting)
- See also Concurring Opinion by Wecht, J.
- See also Dissenting Opinion by Mundy, J.
- See also Dissenting Opinion by Brobson, J.
Pennsylvania Environmental Defense Foundation v. Commonwealth, 65 MAP 2020 (Opinion by Baer, C.J.) (holding that several of the General Assembly's uses of oil-and-gas revenue do not violate constitutional provisions requiring that state resources be held in trust)
- See also Concurring Opinion by Donohue, J.
- See also Concurring Opinion by Mundy, J.
- See also Concurring and Dissenting Opinion by Dougherty, J.
- See also Concurring and Dissenting Opinion by Wecht, J.
Commonwealth v. Reid, 784 CAP (Opinion by Baer, C.J.) (remanding a capital case for further proceedings on a claim of ineffectiveness in connection with a defendant's competence to stand trial)
- See also Dissenting Opinion by Mundy, J.
O'Neill v. State Employees' Retirement System, 25 EAP 2021 (Opinion by Todd, J.) (holding that the federal offense of "false statements to a federal agent" is not substantially the same as "false reports to law enforcement authorities" and thus does not trigger pension forfeiture under the Public Employe Forfeiture Act)
Commonwealth v. Lopez, 27 EAP 2021 (Opinion by Dougherty, J.) (holding that a trial court need not consider an offender's ability to pay in imposing court costs)
- See also Dissenting Opinion by Donohue, J.
Kornfeind v. New Werner Holding Co., Inc., 30 EAP 2021 (Opinion by Mundy, J.) (holding that the Pennsylvania Uniform State of Limitations on Foreign Claims Act does not require Pennsylvania courts ato borrow foreign jurisdictions' statutes of repose)
In re: Appeal of April 24, 2018 Decision of the Charlestown Township Zoning Hearing Board, 80 MAP 2021 (Opinion by Wecht, J.) (holding that a zoning ordinance permitting billboards is not de facto exclusionary as to a use where superseding state regulation forbids that use)
Goodwin v. Goodwin, 70 MAP 2021 (Opinion by Brobson, J.) (holding that under certain circumstances life insurance proceeds and individual retirement accounts can constitute gifts not classified as marital property and not subject to equitable distribution)
Povacz v. Pennsylvania Public Utility Commission, 34-45 MAP 202 (Opinion by Donohue, J.) (holding that legislation providing for "smart" electric meters does not require they be furnished to all customers and does not permit customers to opt out of their installation)
Commonwealth v. Jackson, 58 EAL 2022 (granting review to consider suppression of the evidence on the ground of a lack of actual suspicion)
N.W.M. v. Langenbach, 67 EAL 2022 (granting review to consider quasi-judicial immunity as applied to guardians ad litem)
Fiochetta v. Fiochetta, 67 WAL 2022 (granting review to consider the legality of awarding child support for constructive childcare expenses)
In the Interest of K.T., 177-178 WAL 2022 (granting review to consider the appropriate formulation of parent-child bonding analysis)