The Commonwealth, Governor and Secretary of Revenue have responded to a Township legal challenge to the constitutionality of a law enabling Allentown to use township EIT to fund a hockey arena and other improvements. Instead of an Answer on the merits, the state and its officers have filed Preliminary Objections, asking that the Complaint be dismissed.
Reason? According to the Commonwealth, it is immune from lawsuits. You cannot sue the King! In addition, the Commonwealth and other state officials argue that the Township's beef is with Allentown Neighborhood Improvement Zone Development Authority (ANIZDA), not them.
Similar objections have been filed To developer Abe Atiyeh's parallel challenge.
Township Challenge:
You can read their objections below.
Atiyeh Challenge:
Today's one-liner: "The shortest way to the distinguishing excellence of any writer is through his hostile critics." Richard LeGallienne
Local Government TV
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Tuesday, May 29, 2012
56 comments:
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Touche.
ReplyDeletethey did not touch on the merits because they know the law is unconstitutional. They said so themselves in a phone call to the filing attorney's.
ReplyDeleteLooks like the Gov is in Reilly's pocket. You never know the NIZ might happen after all....
ReplyDeleteWhy doesn't Gov Tom Corbet just put the LLC at the end of his name. This would be like all the other fakes in Allentown.
DeleteGoverner Tom Corbet LLC
Pensyilvania Capitol LLC
Wow. The state effectively said that the law suit has to be tossed b/c the suit doesn't even target the right parties. In other words, the lawyers, being paid $28,000 to date, can't even sue the right people in the matter.
ReplyDeleteThat's kind of funny to read. Whether or not it is true is interesting, but it's a funny point.
This whole thing has put regionalism back 30 years. It was ok for the cities to provide all of the services and the state and federal government to provide all of the roads for their development but now the burbs don't want to recipricate. Come on guys, we are all in the same sand box, let's play nice. BTW, how much state money went to Ocean Spray? And so many more that I could list.
ReplyDeleteAh yes! The world is wrong but O'Hare, the follow the leader twp's and O'Hare are right.
ReplyDeleteYou guys really need to read the book on O'Hare or just check out his recent history in Northampton county, before hitching your wagon to his lead balloon.
Hey but look at thge bright side the lawyers are happy.
They're right, of course. Once a law is enacted, all state entities are on the same team. What anti-NIZers really needed to do was elect smarter representatives who wouldn't enact such a scheme. My rep is some lady who cleaned Craig Dally's office and answered his phone. While very nice, she likely doesn't know what day it is, let alone the implications of complicated legslation. Elections have consequences. Pat Browne hornswaggled his peers for Allentown's benefit. It was and is perfectly legal. Elections have consequencea and courts don't like to be used for do-overs.
ReplyDeletePat gave me an award for somthing his promanante white contractor did not have to do but i did.
DeleteCivil rights issue
1:35,
ReplyDeleteAllentown has provided Bangor and Wind Gap and Wilson nothing. You're right about the death of regionalism. Pat Browne and Ed P can give the eulogy. This thing wull cost far more than dollars for this area.
This is only one step in the process. The court will decide, not the pleadings. What is interesting is the Commonwealth was SILENT on the constitutionality.
ReplyDeleteIt will be years before this is resolved.
ReplyDeleteIt will be years before this is resolved.
ReplyDeleteI think it's true that the state has immunity, as does Allentown and ANIZDA.
ReplyDeleteWhat this tells me is that local and state lawmakers can pass whatever laws they'd like, regardless of constitutionality. SCARY.
Anon 325pm, excellent point.
ReplyDeleteThe law was passed by a lawfully elected legislature. You can't fight city hall (or Harrisburg) when it is filled with the people you put in it. The law enactors enjoy a great deal of voter support themselves. This fight is over.
ReplyDeleteBernie -
ReplyDeleteI'm not a lawyer but isn't this (Preliminary Objections to get a suit tossed) pretty much standard practice in any such case?
P.O.s are normal practice; sometimes they are actually useful and resolve important questions of law at an early stage. You are right that P.O.'s are often abused in the litigation process and used to kill time, but here the state players are saying they should not be parties to the suit--P.O.s are the proper vehicle for raising that issue. Its an interesting issue because if the Court determines the state guys are not proper parties, and, that the municipal players, city of Allentown, etc., have immunity, it could all be over before it starts. Also, in super-political cases like this where there is no prior precedent, appellate courts love trying to skirt the issue, so this is a smart play by the NIZ supporters.
ReplyDeleteP.S., the city of Allentown, ACIDA, and ANIZDA sought leave of court to intervene today. Not exactly sure what is going on here unless they want to files P.O.s or force a judgment on the pleadings.
ReplyDeleteLet the BONDS be written and the Construction BEGIN
ReplyDeleteIt means nothing. They'll build a costly boondoggle of an arena for a team that will be gone in six years and surrounding populations will continue to avoid Allentown like the murderous shithole it's been for thirty years. Boycotts are tricky. But people have been boycotting Allentown for generations. It's about the crime, stupid. Just ask Reading. You can put a pig in pants and it will still shit the pants. And so it is with Allentown. Nobody is going to risk being shot or stabbed to go to an event in downtown Allentown. The Iron Pigs are successful because they did not locate in downtown Allentown. They are a Bethlehem team for all intents and purposes. Easy on and off the highway; few lights; lots of parking - and NO MURDER.
ReplyDeletePublius what's the appropriate venue/parties then to bring up the issue of the law's constitutionality?
ReplyDelete@ 5:31, there may not be a proper judicial forum / parties to challenge this. That's the problem with political questions and why courts try to avoid them like the plague. I have to tell you though, I am not an expert on municipal immunity law. It seems like a lot will come down to whether Allentown has immunity here--something suggests to me that they might or they would have been sued earlier, but, its gonna be a confusing few weeks with arcane twists of esoteric civil procedure. If Bernie keeps posting the court documents I'll try to explain as best I can as they come out.
ReplyDeletei have to point something out. Whether it is a slip and fall or Obamacare, the filing of POs is pretty standard stuff. It's very clear that a township or any citizen has a right to challenge the constitutionality of a law via declaratory judgement; otherwise, no laws could e overturned. The immunity is from civil liability, not from a legal determination about the validity of a law. Also, the biz about the right parties, assuming it has merit, can be easily fixed by filing an amended complaint.
ReplyDeleteWhat is most telling here, as someone has observed, is that the Governor has not chosen to challenge the actual merits of the complaint. There is no demurrer (or legal so what?). Since all POs must be raised together, what this tells me is that the state concedes, on the merits, that this case is a loser.
Or the state parties don't think they should be in the case so they want a proper party (city of Allentown, etc.) to bring the demurrer, which is probably why the municipal parties intervened today.
ReplyDeleteThe more the merrier. It would make sense for ANIZDA, ACIDA and Allentown to be parties. This is a problem in the settlement talks.
ReplyDeleteIt's really weird to me that the municipal parties were not named from the outset. Any idea why that was?
ReplyDeleteIf I had to guess, I would think there was some hope for settlement with the state, while there was none with the city. I think there still is hope for the anti-NIZ crowd to get the legislature to end this fight by KO when the final budget and accompanying fiscal code is passed. It would take a lift due to some of the leadership players from Allentown, but it's possible.
ReplyDeleteLeaving the constitutionality issue out of the PO's is very telling. The Commonwealth's silence is deafening.
ReplyDeleteThe constitutional issue, if left to the courts, without a commonwealths defense will be found in the Township's favor.
If the law's constitutionality was not addressed, how would any municipal bond underwriter go ahead with the arena bond issue with such a significant open issue. This means that the constitutionality issue can again be challenged. You don't have to be a legal expert to see that Harrisburg rolled over on this critical issue. Still no clarity which doesn't go over well on Wall Street.
ReplyDeleteDoes this mean that the gov, the former state attorney gen has now tipped the scales to the pro niz side?
ReplyDeleteNo. I believe they are saying they are Switzerland - this is not their fight.
ReplyDeleteI would like to point out the following;
ReplyDelete1. All of the EMPLOYERS in the city of Allentown, as in other municipalities deduct the EIT from all employees and forward he monies collected to the Department of Revenue and the Department of Revenue then forwards those monies back to the municipality of origin of the employee AND THEIR SCHOOL DISTRICT; half and half. This was the law prior to the stealth legislation that was passed to divert funds collected in the NIZ back to the NIZ authority. However, the law specifically denotes the NIZ in the instant case for the Department of Revenue to return all monies collected to the “CONTRACTING AUTHORITY”, in the instant case ANIZDA.
2. The proper defendant for the Constitutional challenge is the ultimate enforcement entity, i.e., Secretary of Revenue who is responsible for collecting and disbursing all EIT funds throughout the Commonwealth.
3. Preliminary Objections are (“just in case we got the right judge who will rule based on the pleadings”) work orders for defense lawyers, as the first step in any civil litigation.
4. The City of Allentown has no standing. The city created the “Contracting Authority”, ANIZDA, and ANIZDA was certified by the Secretary of State as an Authority, and therefore it becomes a “creature of the Commonwealth and not the municipality that created it”. (Pa Supermen Court ruling) Ergo, Allentown cannot now interfere with the workings of the Authority.
5. STEALTH LEGISLATION. This bill originated in the House on June 9, 2009 as an innocuous two page bill regarding the State Worker’s Insurance Fund; passed almost unanimously in the House 192-4 and remained so until Oct. 9, 2009, when it became an 87 page behemoth that included the creation of the NIZ legislation, was passed by the House, this time with full disclosure by 14 votes, 106-92, and signed by the Governor on the same day. (Legislative journals of the House and Senate) The municipalities and their local officials were not aware of the legislation any more than the legislative representatives in the House or Senate, until the last minute; with the obvious exception of Senator Browne; who didn’t bother to tell anyone except for a select few; just like the gambling and pay raise legislation bills.
I believe there have been violations of Federal Law specifically at Title 18 §§240, 241, 666, 1341, 1343. Moreover, these are predicate acts under the RICO statutes at 18 USC §§1961, 1962, and 1964(c).
Yeah, unfortunately things are looking good for the Pro-NIZ side. Ever since that disastrous joke Hanover supervisors made about the pit, there has been a palpable shift in momentum toward the side of the urban growth regime.
ReplyDeleteI don't think so myself. A responsive pleading was due. Now we have it. Interestingly, the state s taking no position on the actual constitutionality of the statute. I don't view that as good news for Team NIZ.
ReplyDelete1:55 p.m.
ReplyDeleteThe classless comment about Representative Hahn should be removed. She was an effective legislative aide, not the cleaning lady.
Get a clue. I would prefer that she was my representative than the 20 year old who replaced Reichley or Rep. Simmons.
Representative Simmons has already informed residents that this cannot be overturned, he voted for this legislation because it was good for the entire region. He is thinking of the future when Municipalities will be merged and share services to save money.
ReplyDeleteHere's an idea, the entire Lehigh Valley merges to become THE CITY OF LEHIGH!
ReplyDeleteI think it would be an excellent idea for Lehigh County and perhaps Northampton County to consolidate together on a county-wide basis. Why not? Imagine the political power the cities would have and the huge savings that could be achieved by getting rid of duplicated municipal functions. Thanks for putting this out there for debate @ 9:00.
ReplyDeleteHe did say that, but i believe he was misinformed. One legislative body cannot bind another.
ReplyDeleteI'm letting it stand and I'll tell you why. The best people I know at the courthouse are the ones cleaning the offices. They seem to know more than the rest of us and are genuinely good people. So Marcia went up a notch in my estimation when I read that comment. Marcia is a good and decent person, and the attempt to deride her by picking out a custodial job says a lot more about the smugness of the person posting the comment than it does about Marcia. So if you don't mind, I'll let it stand.
ReplyDeleteCan we all reasonably agree, however, that the Abe suit is gonna go away based on the POs.
ReplyDeleteTrue, true: the Commonwealth's filing scrupulously avoids the constitutional challenge issue, apparently hoping the court will play no attention to that 600-pound gorilla in the room and dismiss the case on other grounds. The state would be derelict not to raise the defenses it does. In the end, though, all it may have accomplished is keep itself in the litigation while inviting the plaintiffs to name more defendants in order to avoid the possibility of pinning the problem on an unnamed and absent defendant, the so-called "empty chair" syndrome. It's a good try, but the case remains as likey to go forward as it did before the filing.
ReplyDeletePublius, No, I don't agree. I believe Abe's lawsuit has more validity now than before. The standing PO seems weak and one that he can easily refute.
ReplyDeleteThe NIZ is here to stay and O'Hare is once again a loser. Now he took many with him. Congratulations!
ReplyDeleteI will enjoy my first hockey game and point out all the Twp. officials who ask for a free ticket for the opening night.
I will be the on yelling hypocrites all!
NIZTIVUS FOR THE REST OF US!
ReplyDeleteI belive the parties have greatly underestimated the cost of the suits. I saw something that they had $28,000 in funds available. How about next weeks spending, this is a huge cost.
ReplyDeleteThey should have taken the settlement. They may not have been happy but the cost was low and the EIT issue was minimized.
Every city entity ending with "Authority" must have an LLC after it.
ReplyDeleteJust form an authority in a back room and responsibility for illegal activity ends there.
Anon 3:03 AM :
ReplyDeleteWhat?
Ironically, on the same day the executive branch told the court that the plaintiffs should be suing the City of Allentown and the NIZ Authority instead of the state, both of them filed motions to intervene in the lawsuit. Everyone's here, now the party can get started!
ReplyDeleteThis news, by the way, comes via the docket link posted by the LVR blog. Interesting that you can get more objective information about what's going on from a subjective blogger than you can from an "objective" mainstream news media organization.
6:04,
ReplyDeleteNo surprise whatsoever. The MC has been losing cred for decades. Its cred might even be in negative territory by now.
Bernie,
ReplyDeleteDid Simmons answer your NIZ questions?
The City, ACIDA and ANIZDA played right into the plaintiffs hand. If this was chess, we just had checkmate. Those are the only three beneficiaries of the unconstitutional Act. Next question, weren't there any local attorneys that could have represented the three amigos. Wait till the City gets their bill at $475 per hour. Double checkmate.
ReplyDelete"Did Simmons answer your NIZ questions?"
ReplyDeleteNo, but then again, neither did deely. te lack of leadership displayed by the state reps and the wannabes is very disappointing.
8:59, I doubt The Morning Call's Andrew McGill will file a RTK for them, but I can guarantee you that I will.
ReplyDelete8:59 $475 per hour is cheap. Try $650/hr for these clowns. The city not only hired Dilworth but also hired Buchanon Ingersoll another highly connected firm. The chairman of which was co-head of good ol corbett's transition team. This selection also helps pawlawski raise money from the big boys at Dilworth and Buchanon for his state wide campaign. But who pays for it all? the tax payer. Pawlawski doesn't give a shit about squandering tax payers money to serve his own personal interests. Just look at the 40 million dollar hole if you have any doubt.
ReplyDelete