Delaware County Jump Starts Open Records Law

Delaware County was so excited about Pennsylvania’s recently adopted Open Records Law that it decided to speed up the process.

The County Council adopted a resolution Tuesday to provide for early implementation of the law, effective immediately. The state law doesn’t go into effect until Jan. 1, 2009.

“We are adopting the state’s new policy earlier than is required at the county level to expand our current policy to allow the public to benefit now from the changes,” County Council member Christine Fizzano Cannon said in a statement. “Council is committed to providing open access to public documents, which enables residents to have a better understanding of county government transactions.”

The benefits of the new law, Fizzano said, are the presumption that a record is a public record, a shift in the burden of proving a record is public and the ability to make requests electronically.

Exemptions to the Open Records Law include autopsy reports (with the exception of the name and manner of death), 911 tapes, written records of internal deliberations, information that would jeopardize computer security and personal information such as homes addresses and social security numbers, according to the statement.

The resolution establishes County Clerk Anne Coogan as the open records officer. The new open records policy is posted on the county’s Web site and a request form is also available.

– Gina Passarella, Senior Staff Reporter

Gov. Can’t Reject the Loaf Without Taking Away the Dough

A unanimous six-member Supreme Court ruled today that Gov. Edward G. Rendell may not veto language in an appropriations bill and leave the funding untouched.

The court reversed part of a Commonwealth Court case ruling that Rendell didn’t violate Article IV, Section 16 of the Pennsylvania Constitution when he rejected language defining an appropriation but didn’t disapprove the funding associated with the language.

The appropriation bill at issue in Jubelirer v. Rendell was the General Appropriation Act of 2005, which Rendell approved with seven exceptions. Three of those exceptions were over language in certain sections of the bill and not about the amount of money appropriated. Those sections dealt with Medicaid payments for outpatient services, provisions for closing state police barracks and infrastructure maintenance. The total appropriated under those three sections was a little more than $1 billion.

The Supreme Court, in an opinion by Chief Justice Ronald D. Castille, ruled Rendell couldn’t veto language in the sections regarding Medicaid payments and police barracks but could veto language in the infrastructure section, finding that veto wasn’t solely over language.

“In summary, we hold that Article IV, Section 16 of the Pennsylvania Constitution prohibits the governor from effectively vetoing portions of the language defining an appropriation without disapproving the funds with which the language is associated,” Castille said.

He was joined by Justices Max Baer, Thomas G. Saylor, J. Michael Eakin, Debra Todd and Seamus McCaffery.

Read more about the case in Thursday’s Legal.             

~Gina Passarella, Senior Staff Reporter

Legal Services Get Modest Increase in State Budget

State funding for legal services organizations hurting from a drop in grants from interest on lawyer trust accounts increased only $526,000 in the state budget process last week, said Samuel Milkes, executive director of Pennsylvania Legal Aid Network, the statewide coordinating organization for 10 regional legal services programs and six specialized legal resource programs.

The state budget originally proposed increasing funding by $1 million.

Milkes said that because other appropriation items were slashed even more dramatically that legal services organizations were pleased that some increase was seen in the budget.

“We also realized when looking at the treatment of other lines it certainly represents support from the governor and the legislature that we very much appreciate,” Milkes said.

Total state funding, separate from a federal services block grant, is about $3.1 million.

The state funding for legal aid programs that provide direct services is distributed to PLAN, which then allocates according to the most recent census and the poverty populations in each area of the sate.

“We’re appreciative of the legislature and the governor,” Milkes said. “We also appreciate how much the Philadelphia bar and the Pennsylvania bar and lawyers around the state worked hard to see this increase.”

In interviews with The Legal, legal services organizations have said that every extra penny will help them because IOLTA grants are down 33 percent, or $7.3 million, statewide in the fiscal year that started July 1.

– Amaris Elliott-Engel, Staff Reporter

Branches of City Government Ready Mortgage Foreclosure Protection Plan

Philadelphia Mayor Michael Nutter has proposed $2 million in public funding to help Philadelphians impacted by the foreclosure crisis’ perfect storm of ballooning adjustable rate mortgages, predatory lending and slowing economy.

The City Council passed a resolution in March for a moratorium on sheriff’s sales of foreclosed homes, spurring Sheriff John Green’s delay of sheriff’s sales this spring until July.

The Common Pleas Court established a pilot program to divert properties set for sheriff’s sales into conciliation conferences to work out possible loan renegotiations.

Efforts of all three branches were packaged together during an announcement by Nutter Wednesday of a mortgage foreclosure protection program for Philadelphia.

“We are ready,” Judge Annette M. Rizzo said over and over again with President Judge C. Darnell Jones II, Councilman Curtis Jones, Administrative Judge D. Webster Keogh, Councilwoman Marian Tasco and Nutter standing beside her.

There were 6,200 foreclosure filings in Philadelphia last year, and 8,500 are expected this year.

Jones said the Resident Mortgage Foreclosure Diversion Pilot Program allows court intervention in cases of already-pending owner-occupied mortgage foreclosures lawsuits. But he thanked the executive and legislative branches for their leadership on providing resources to residents whose troubled mortgages aren’t yet subject to a court case.

The city will provide $700,000 for housing counseling, $300,000 for legal services provided by Community Legal Services and $1 million in remortgaging funding for the Pennsylvania Housing Finance Agency’s HERO program in the next fiscal year.

“We’re here to do the public good,” Jones said. “We are the public’s conscience in that regard.”

About 185 attorneys have volunteered for the court’s diversion pilot program, Rizzo said.

Training was held Tuesday for 100 pro bono attorneys helping with the conciliation conferences, 60 lawyers are signed up for a training session scheduled for July and 25 attorneys are working as Judges Pro Tem, Rizzo said.

“I’m calling on the law firms … to come forward to donate your time,” Jones said, to represent homeowners in conciliation conferences or as Judges Pro Tem managing the conciliation conferences.

Nutter said it appears that the Philadelphia bar is really getting involved in the court’s program.

The court’s program will be a legally appropriate process to either keep people in their home or help them gracefully exit, Rizzo said.

The conciliation conference process was developed by the 4-year-old Mortgage Foreclosure Steering Committee, which functions under Rizzo’s authority and represents lender, homeowner, nonprofit advocate and municipal viewpoints on foreclosures.

The first conciliation conferences are scheduled for next week. There are 667 cases that are eligible for conciliation conferences, and about 50 percent of homeowners are expected to show up, Rizzo said.

Tasco said Philadelphia efforts are a model for other cities to follow.

Jones said the court has been contacted by representatives from New York and Dallas about Philadelphia’s efforts, and that he will be speaking about the program before the July conference of the International Association of Clerks, Recorders, Election Officials and Treasurers.

All the leaders asked city residents worried about their mortgages to get free housing counseling by calling the city’s new 215-334-HOME hotline staffed with attorneys from Community Legal Services.

“If you fear you might possibly lose your most valuable asset, there is hope for you,” Nutter said. “Do not suffer in silence.”

– Amaris Elliott-Engel, staff reporter

 

Girard-diCarlo to Get Ambassador Appointment

The White House announced on its personnel page that the president intends to nominate Blank Rome Chairman David. F. Girard-diCarlo as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Austria.

Girard-diCarlo has been a major donor and fundraiser for President George W. Bush and had spent several years living in Washington, D.C.

After spending more than 20 years serving as either managing partner or chairman of Blank Rome, Girard-diCarlo said last year that he would resign as chairman effective Jan. 1, 2009.

Once his nomination is in place, it would have to go through the senate confirmation process.

The firm couldn’t offer much comment on the nomination at this point, but managing partner and Chief Executive Officer Carl M. Buchholz said in a statement “David has been an important leader for our firm, and we are thrilled that he has received this nomination from the president.”

– Gina Passarella, Staff Reporter

 

 

Change in Rules Clarifies Non-Judicial Members’ Role in Court of Judicial Discipline

A change made to the Pennsylvania Code of Judicial Conduct earlier this year clarified the clause prohibiting judicial candidates from making statements that “commit or appear to commit” candidates regarding cases. Similarly, the rule governing the political activity of non-judicial members of the Pennsylvania Court of Judicial Discipline also was changed earlier this year in order to clarify the rule.

The rule governing the political activity of non-judicial members of the Pennsylvania Court of Judicial Discipline was changed earlier this year in order to clarify and tighten the rule. According to Henry B. FitzPatrick Jr., counsel for the Court of Judicial Discipline, the language of Section C of Rule 7 of the “Rules Governing the Conduct of the Members of the Court of Judicial Discipline” was clarified in order to strengthen the rule governing against members of the court in charge of judicial discipline from aiding the election of judicial candidates.

“We want to be stronger about judicial candidates staying out of helping anybody becoming a judge,” FitzPatrick said. “Obviously this court has jurisdiction over judges … The hope is that this rule change will make it easier to understand.”

Similarly, a widely-publicized change made to the Pennsylvania Code of Judicial Conduct clarified the clause prohibiting judicial candidates from making statements that “commit or appear to commit” candidates regarding cases.

The rule originally said, “Non-judicial members of the court shall not hold office in any political party or political organization during the member’s term of service, and should refrain from political activity inappropriate to the member’s judicial office.”

The “should refrain from political activity inappropriate to the member’s judicial office” clause was removed.

The rule also originally said, “Non-judicial members should not act as leaders in any political organization or make speeches for or endorse a candidate for judicial office or judicial appointment.”

This part of the rule has been changed to read: “Non-judicial members should not act in any capacity in any political organization of a candidate for judicial office or judicial appointment.”

The rule also originally said that “non-judicial members should not publicly solicit or contribute funds for a candidate for judicial office or judicial appointment and nor serve as officers, members or volunteers in the campaign of a candidate for judicial office.

The rule has been changed to read: “Non-judicial members should not publicly endorse a candidate for judicial office or judicial appointment and should not solicit or contribute funds for a candidate for judicial office.”

The court’s eight members include two nonjudge, lawyer members and two lay people.

Just as the “commit or appear to commit” clause in the Code of Judicial Conduct was excised because of the critique of ambiguity, the prior language in the Court of Judicial Conduct rules barring court members from “inappropriate” political activity was taken out because people will have differing interpretations of what’s inappropriate, FitzPatrick said.

“I bet what you think is inappropriate is different than what I think,” FitzPatrick said.

FitzPatrick, who has been counsel to the court since 1997, said the rule was drafted shortly after the court started in 1994. The rule was changed in February, he said.

– Amaris Elliott-Engel, Staff Reporter

 

Pratt Calls for Senate Action to Fill Court Vacancies

Philadelphia Bar Association Chancellor Mike Pratt has joined Pennsylvania Supreme Court Chief Justice Ronald D. Castille’s request for the Pennsylvania Senate to act on Gov. Edward G. Rendell’s nominees to fill four appellate court vacancies.

Earlier this month, Senate President Pro Tempore Joseph B. Scarnati III and Majority Leader Dominic Pileggi rejected Rendell’s proposed interim appointees for one slot on the Supreme Court, one slot on the Commonwealth Court and two slots on the Superior Court because the candidates don’t reflect the state’s racial, geographical and gender diversity. The Republican leaders also rejected the nominees because they said Rendell did not heed their suggestions for those interim openings and the Senate’s advise and consent role in nominees.

In a letter sent Wednesday to the Republican leaders of the Senate, Pratt said: “The ability of Pennsylvania’s citizens to receive fair and effective justice in our Commonwealth, Superior and Supreme Courts is contingent upon filling these crucial posts. We ask that you end, with all expediency, this stalemate by voting to confirm the four respected jurists and attorneys who have been deemed qualified for interim court appointments by Governor Rendell.”

Pratt said in an interview that while diversity on the appellate bench is a goal of the 13,000 member bar association, that “this is a time we just need to move on and get these nominees their day in front of the judiciary committee and get a vote.”

Pratt said he has no questions about the competency or capabilities of the nominees, including former Commonwealth Court Judge and current Commonwealth Court Senior Judge James Gardner Colins for the Supreme Court opening created by former Chief Justice Ralph J. Cappy’s resignation, former interim Justice and Superior Court Senior Judge James J. Fitzgerald III and past interim Superior Court Judge Robert C. Daniels for the Superior Court and Duquesne University law professor Kenneth E. Gormley for the vacant Commonwealth Court slot.

Castille has said in recent days that seeking diversity in interim appellate appointees is not the most important issue because leaving the openings unfilled means litigants and their lawyers face delays in the administration of justice and other jurists see an increase of their workloads.

The interim nominees will automatically become instituted in early June if the Senate fails to act by then.

-– Amaris Elliott-Engel, Staff Reporter

 

Civil Gideon Movement Looks to Expand Right to Publicly Provided Legal Counsel

The Supreme Court’s 1963 decision in Gideon v. Wainwright guaranteeing low-income citizens the right to publicly funded defense lawyers in criminal cases had a momentous day in Philadelphia last week

On the same day, a group of private attorneys who take court-appointed cases representing indigent criminal defendants filed a federal lawsuit against the city of Philadelphia and its court system, claiming that the low rates of compensation for attorneys and other experts violate their clients’ constitutional rights. And the Philadelphia Bar Association’s Public Interest section and a similar group from the Pennsylvania Bar Association concluded a year’s worth of work by holding a plenary meeting about expanding the right for the indigents to have lawyers in civil cases.

The planning for the “Civil Gideon: A Right to Counsel in Civil Cases” gathering Thursday was kick-started following the American Bar Association’s passage of a resolution to expand the right for publicly-provided legal counsel in civil cases where low-income people’s basic needs would be adversely affected without having counsel.

Both the state and city bar associations passed similar resolutions to the ABA’s resolution. Karen L. Forman, pro bono counsel at Saul Ewing, and Marsha Levick, legal director at the Juvenile Law Center, have been chairing the 15-strong Philadelphia Bar Association group. Dveera Segal, an associate professor of law at Villanova Law School, chaired the 19-member Pennsylvania Bar Association task force.

“There’s a huge pro se population in our courts,” Forman said. “And it reaches epidemic proportions.”

Debra Gardner, legal director of the Public Justice Center in Baltimore and coordinator of the National Coalition for a Civil Right to Counsel, said the Civil Gideon movement started on a national level in 2003. In Maryland, the Civil Gideon movement started in 2000 with a project to seek the expansion through litigation of the indigent right to counsel on a broad basis in civil cases.

The movement is pursuing state-level efforts because of the conservative state of the U.S. Supreme Court and because of a lack of current desire to revisit a U.S. Supreme Court precedential decision with the current crop of justices, Gardner said. In the 1981 Lassiter v. Department of Social Services, the court ruled there is no 14th Amendment due process right in cases where the state seeks to terminate parental rights (the Supreme Court did hold a state court may appoint counsel), Gardner said.

“We’re urging people to think about what they can do in their states,” Gardner said. “I don’t think there’s a soul on this planet who thinks it would be wise to ask the current U.S. Supreme Court about civil rights to counsel.”

But given that the court has revisited issues about the legality of criminalizing sodomy and the execution of juveniles, Gardner thinks there will be a time to revisit Lassiter.

“We must have as the law of the land the rights to civil counsel in basic human needs cases,” Gardner said.

In the first test case of this effort in Maryland, Frase v. Barnhart, the court did not reach the issue of the right to counsel. But three judges in a concurrence said that they would recognize a constitutional right to counsel in some cases.

Gardner said her partners and she are looking for another “sympathetic contested custody case” where the court would have to address their constitutional civil Gideon arguments.

In other jurisdictions, Civil Gideon proponents will have to decide if they should start with an effort to enact legislation or if a court battle is the best tack, Gardner said.

In Maryland, the Civil Gideon’s legal arguments include:

* The Maryland Declaration of Rights is different from the federal constitution and has open courts and equal access provisions; the inability to afford counsel violates the right to access the courts.

* Under separation of powers, the judiciary is required to make sure the legal system of adversary justice works and that the indigent have access to counsel.

* That the Magna Carta and English common laws, which include the right to counsel for indigent civil plaintiffs with meritorious causes of action, apply to Marylanders because the constitutions’ framers intended that all English laws that existed on July 4, 1776, applied to Marylanders.

* The Maryland Declaration of Rights has a due process clause like the federal constitution, but that Maryland should reject the Lassiter decision.

Laura Abel, deputy director of the justice program at the New York legal think tank Brennan Center for Justice, said that an effort to expand the right to counsel in civil cases in New York started with the goal of finding “low-hanging fruit.” The goal, she said, was to find an area of law that wasn’t too controversial and in which a civil right to counsel could be established as a foundation for future efforts in other areas of law.

The New York low-hanging fruit: a bill has been introduced in the New York City Council to provide counsel for low-income, elderly New York City residents during eviction proceedings and foreclosure proceedings, Abel said.

Abel also noted that states have an uneven guarantee of counsel in civil cases, often limited to narrow situations (New York has a right to counsel in unemployment benefits case when the employer is appealing a decision in favor of the claimant.).

Pennsylvania already guarantees representation in some civil law situations, including counsel for people facing involuntary mental health commitments and counsel for children during involuntary termination proceedings of parental rights when one or both of the parents contest the proceedings.

But in housing matters and in child custody, Pennsylvania low-income citizens don’t have the right to lawyers and they can lose their rights if they are in a court case being litigated with a lawyer on the other side, Forman said.

State Rep. Kathy M. Manderino, D-Philadelphia, said that she hoped her remarks weren’t taken as a slam to the positive energy generated to the meeting. But she pointed out that any Civil Gideon effort in Pennsylvania must choose its tactics and targets carefully. A litigation approach might fail because prior court decisions ordering state funding for the court system have been ignored. “You can see where that got us,” Manderino said. “The Legislature basically ignores what the court says.”

– Amaris Elliott-Engel, Staff Reporter

Rendell Sounds Off on Merit Selection, Pa. Primary, etc.

Pennsylvania Gov. Edward G. Rendell told a sold-out crowd of young lawyers mingling in the lounge setting of G that the fresh push for the appointment of appellate judges is needed because the state’s elected system of judges is a terrible system for diversity.

“Look at Darnell Jones,” Rendell said, referring to Philadelphia Common Pleas President Judge C. Darnell Jones II’s unsuccessful shot last year at the state Supreme Court during the Philadelphia Bar Association’s Young Lawyers Division annual meeting Tuesday at the bar and mingling space below Davio’s on S. 17th Street.

An appointed system is also needed, Rendell said, because judicial candidates shouldn’t have to raise money from lawyers or potential litigants like the Chamber of Commerce or the AFL-CIO. Legislation was introduced this week in the General Assembly to abolish the election of appellate judges in favor of nominations by a citizen commission, appointments by the governor and confirmations by the Senate.

Rendell said that the merit selection proposal might not get far in Harrisburg’s political climes. But this proposal has one political survival skill: it’s key that voter enfranchisement would not being taken away regarding common pleas and other local judges because in the commonwealth’s rural counties — unlike in Philadelphia — candidates for that level of judge are well-known to voters and voters are invested in selecting judges, Rendell said.

Rendell took questions from the audience in lieu of giving a speech as the keynote speaker.

In response to one presidential race question, Rendell, an outspoken backer of U.S. Sen. Hillary Clinton in the Democratic presidential nominee race, said that Clinton would win the Pennsylvania primary, but the “only question is what the margin will be.”

He said he believes U.S.  Sen. Barack Obama, Clinton’s opponent, will be damaged if Clinton wins Pennsylvania by 14-17 points, but won’t be too damaged if Clinton only wins by 10 points or less.

He said that no matter who wins the Democratic Party nominee contest, that after three debates with Republican presidential nominee U.S. Sen. John McCain, “Senator Obama is going to be president or Senator Clinton is going to be president.”

Once Rendell leaves the governor’s mansion, he said in one answer, he would increase his teaching load, do foundation work, join a law firm as of counsel to advise clients on whom to go see in the government for their particular issues and write a book.

He said he thought he might title the book: “Life in Politics: You Can’t Make This Shit Up.”

Tuesday night’s event sold-out with 250 tickets, event organizers said.

Scott P. Sigman, an associate at Bochetto & Lentz, received the leadership gavel from outgoing chair Alan Nochumson. Sigman said his goals for the YLD this year echoes Mayor Michael Nutter’s goals of improving the city’s crime rates and public education system.

Earlier in the meeting, the YLD gave out three awards.

DaQuana L. Carter, an associate at Pepper Hamilton, received the Craig M. Perry Service Award, which is given to a young lawyer who has devoted substantial time and energy to community-oriented activities. Carter, the president-elect for the Barristers’ Association of Philadelphia and a graduate of Villanova University, mentors a Villanova minority law school student each year, serves as secretary of the Villanova Alumni Minority Society Board and is an active member of her firm’s pro bono committee.

Maria A. Feeley, a partner at Pepper Hamilton, received the F. Sean Peretta Service Award, which is given to a member of the legal community for exceptional community service. Last year, Feeley co-chaired the Women in the Profession committee of the bar association, which established a new call to action and best practices to increase the retention and promotion of women in the legal field. Feeley is a new member of the Board of Governors.

Law firm Dechert received the YLD Vision Award, which is given to an organization that has provided support to the YLD in fulfillment of its mission. Dechert sponsored the YLD holiday party in 2006 and 2007.

 – Amaris Elliott-Engel, staff reporter 

Nutter’s Plan for Prison System Overhaul Moves Forward

Philadelphia Mayor Michael Nutter today signed an executive order to develop a plan of action to tackle overcrowding in the city’s prisons that have resulted in the double bunking and triple bunking of prisoners, a number of lawsuits and a system that is 35 percent over capacity.

Nutter also appointed a permanent leader for the city’s prisons. Louis Giorla, who has been acting commissioner of the city of Philadelphia Prison System, will now be its permanent head.

The executive order Nutter signed in the mayor’s reception room during a press conference at City Hall requires Giorla and Everett A. Gillison, deputy mayor for public safety, to produce a plan within 30 days to posit both short-term and long-term reforms that can ease the strain on the city’s prisons.

“It’s no secret our prison system is bursting at the seams,” Nutter said.

In 1997, running the city’s prisons cost $117 million; the 2009 proposed prison budget calls for $230 million, Nutter said.

There were 5,700 inmates in 1998, but now there are over 9,000, the mayor said.

Possible reforms, Nutter said, include establishing an advisory board composed of representatives of all the stakeholders in the prison system, establishing a re-entry plan for each inmate from the day an inmate enters the system and increasing the job and educational training and drug and alcohol counseling available to former inmates in order to assuage recidivism.

Building a new prison is prohibitively expensive, Giorla said, but the development of short-term contract housing, the increase of day reporting programs for inmates and the development of a mental health court that would divert some inmates from the system all will help.

While Nutter’s crime-fighting plan under the purview of Police Commissioner Charles Ramsey is anticipated to increase the number of inmates in an initial swell, diverting initiatives will help the system deal with an increased population, Giorla said.

Stephen A. Madva, chairman of Montgomery McCracken Walker & Rhoads, chair of the Philadelphia Prison System’s board of trustees and a member of the prison commissioner search committee, said Giorla impressed him with his understanding that the prison system not only keeps the larger community secure from people deemed to be a public danger but also must do what it can to reduce recidivism.

Giorla also was a popular choice to lead the prisons. “He has the reputation as a straight-shooter,” Madva. “He has the clear respect of his staff.”

Giorla, a Northeast Philadelphia resident, has come up through the prison system, including leading prisons as a warden. His father also was a corrections officer.

– Amaris Elliott-Engel, Staff Reporter