Commw Court Affirms Judge Dally in P3 Bridge Case

Judge Renée Cohn Jubelirer 

A disappointed bidder challenging Northampton County's innovative bridge bundling project was rejected last October by Judge Craig Dally. He ruled Clearwater Construction and Northampton County Bridge Partners, LLC, who failed to win the bid, lacked standing. Yesterday, a three-panel agreed with Judge Dally. This is the first case to construe standing under the Public Private Transportation Partnership Act, known as the P3 Act.

What's involved here is Northampton County's use of a P3 contract to repair or replace 33 structurally deficient bridges, all in one shot. The bridges were conveyed to the county's General Purpose Authority, which then sought bids from one set of experts for the entire $40 million project. This is expected to both save money and create efficiencies.

The contract had been awarded to Kriger Construction, but disappointed bidders Clearwater and NorCo Bridge Partners sued. They contended that Kriger failed to satisfy the prerequisite requirements for a responsible bidder, lacked bridge experience. and used undue influence.

Under Pennsylvania law, a disappointed bidder generally has no standing to sue. This is because he holds no property interest in a lost contract. Judge Dally was asked to interpret the P3 Act to conclude that Clearwater and NorCo Bridge Partners do have standing as a "development entity." But in what seems like a Catch-22, the P3 Act defines a development entity as a party to a P3 contract. I doubt that Kriger would have sued itself, saying it should never have been awarded the bid.

Writing for the Court, Judge Renée Cohn Jubelirer noted that, in early drafts of the P3 Act, bidders (called "prospective offerors") could sue. But that language was eliminated. She declined to extend the definition of "development agency" to include disappointed bidders because "we would be essentially rewriting the statutory provision and reinstating the exact language that the General Assembly specifically removed before enactment. This is beyond our authority to do."

Court Strikes Blow For Right to Know

Last week, a sharply divided Commonwealth Court ruled, 4-3, that a Governor has no obligation to produce his daily schedule, at least to the extent that doing so would reveal "predecisional deliberations." Now, in yet another close one, this appellate court has struck a blow in favor of the public's right to know.

In an Opinion on behalf of a 4-judge Majority, Judge Leadbetter rules that a state agency cannot ignore a request for records simply because it fails to refer specifically to the Right-to-Know Law or comply with all the niceties. Written requests for records are Right-to-Know requests so long as they "identify the requested record and include the requester’s name and address." If there is some technical deficiency, "the open-records officer in the agency must so notify the requester of this fact so that the requester can resubmit the request."

In a strongly worded dissent, President Judge Pellegrini scoffs at Leadbetter's ruling. "Because the majority’s holding would make an unaddressed request written on the back of a brown paper bag and given to a PennDot plow driver by the side of the road on a snowy winter night a valid right-to-know law request, I respectfully dissent."

Judges Bernard McGinley and the Lehigh Valley's Renee Cohn Jubelirer join Pellegrini.

Court Rules Governor's Schedule Safe From Prying Eyes

A sharply divided Commonwealth Court has ruled that the Governor has no obligation to produce his daily schedule, at least to the extent that doing so would reveal "predecisional deliberations." This 4-3 decision comes in response to an open records request made by Associated Press reporter Mark Scolforo. Previously, the state Office of Open Records had ruled in favor of disclosure.

Interestingly, both the Majority and Minority Opinions are written by judges from the Lehigh Valley. Renée Cohn Jubelirer, who wrote on behalf of four judges, is a former South Whitehall Township Commissioner who served as an attorney for Lehigh County. Writing for the Minority, Robert "Robin" Simpson is a former Northampton County judge.

While acknowledging that the Right-to-Know is designed to prohibit secrets, scrutinize the actions of public officials, and make them more accountable, Judge Jubelirer reasons that compelling disclosure in this case would "eviscerate" the "predecisional deliberation" exemption. In this case, the matter was remanded to the state Open Records Office for an in camera determination whether the records excluded really would reveal inside baseball.

But Judge Simpson, noting that the Governor's Office had already submitted an Affidavit, concludes that Jubelirer's decision creates a "new, time-consuming process" that "rewards vagueness and burdens requesters."

I suspect this case is headed to the Court of Final Error.

Should We Just Say No to All Judges Seeking Retention?

PACleanSweep: "PACleanSweep is urging every Pennsylvanian to go to the polls on November 6 and cast a resounding 'NO' vote on every one of these judges who accepted the pay raise."

Bill White: "Our appellate judges have made it clear that when the interests of the legislative bosses or the judges' own wallets are involved, the Pennsylvania Constitution comes in a poor second. That -- and the general level of mediocrity in our state courts -- is why I intend to vote 'no' in any retention election for a state judge. If you know enough about one of these individuals to separate the wheat from the chaff, fine, but when in doubt, kick 'em out."

Morning Call: "Our view is that while a protest against the Supreme Court, which has not been an effective check on the abuses of the General Assembly is understandable, a top-to-bottom 'no' vote is irresponsible. Displeasure with the Supreme Court shouldn't indiscriminately be translated into displeasure with the other appellate courts. Voters have a duty, hard as it is, to evaluate whether the other jurists should continue serving. Most do. Some don't."

I agree with voting "no" as a general default position. Our judges, on all levels, have forgotten that their right to sit in judgment of others comes from the people. It's not some sort of divine right bestowed upon them as superior people. But here's my problem. I've news-googled every appellate judge up for retention, and have yet to see a single article from the mainstream media that profiles any of them. Without any help, how can anyone "know enough about one of these individuals to separate the wheat from the chaff?" Instead of just telling us to vote against everyone, wouldn't it make more sense to actually inform the reader?

When the MSM refuses to supply us with the information on which we can make a meaningful decision, it's telling us to vote NO. That just opens the door for Governor Rendell to appoint another judge for every one we reject.

On the left sidebar, I have links to blogs about appellate judges up for retention. I tried to research as much as I could about each, spoke to lawyers who appear in front of them, and read ten opinions by each jurist. Yet, proud as I am of this work, these judicial summaries lack the objectivity, credibility or reach you'd find in a news account.

Justice Thomas Saylor - No!: Although Saylor strikes me as a decent man, I believe we can do better on the state's highest court. From his disingenuous dissent in the judicial payraise to his Big Brother view of government, we will suffer the loss of more individual liberties if he remains on the bench. His long residence in Harrisburg, coupled with his willing participation in judicial excesses, reveal him as an insider. Final confirmation of his allegiance to special interests comes from his campaign treasury. I'm voting NO.

Judge Joan Orie Melin - No!: Melvin might be a gifted politician, but she's not a gifted judge. Her attempt at legal intimidation could be expected from a major corporation, but a slapsuit from a sitting judge is bizarre. And her second suit over the payraise is pure grandstanding. Her money gathering, especially from lawyers, is obscene. And her contrarian opinions reveal an utter lack of compassion.

Judge John Musmanno - Yes!: Musmanno is a judge. He served a full term as a trial judge before even thinking about an appellate court. When he did seek a seat on the superior court, he attended to his judicial duties first, unlike some of his colleagues. He has consistently tackled the Superior Court's more thorny legal questions, but his opinions demonstrate that he still understands what life without a black robe is like. I will vote to retain Musmanno.

Judge Correale Stevens - Yes!: While Judge Musmanno may be the superior court's long ball hitter, Stevens is their utility player. Day in and day out, he has been a workhorse. Not the usual judicial elitist, he is responsive to the people, has conducted town halls, speaks out on issues and even answers email. His decisions are conservative, but well-reasoned. I will vote to retain Stevens.

Judge Bonnie Leadbetter - Yes!: On her web site, Leadbetter makes one request. She asks voters to judge her "on what I have done and not on what others may have done." I'll be voting to retain her.

Judge Bernard McGinley - Yes!: So long as you keep Judge McGinley away from anything to do with sports, he's a very clear and fair-minded judge. Lawyers who practice before him seem to like him. The Pa. bar makes this observation, "He treats lawyers fairly and courteously and is held in the highest regard for his legal knowledge and analytical abilities." I'll be voting to retain him, but I don't think he can count on too many votes in Eldred Borough.

Judge Doris Smith-Ribner - Yes!: Despite her individual desire for privacy, Smith-Ribner has been a judicial voice for state reform. She promotes open records, detests de facto racial segregation, refuses to go along with municipalities that abuse condemnation powers, upholds campaign finance limits and believes you have a right to know that your vote counts. It's ironic that those who promote much-needed state government reform, would advocate her ouster.

Commonwealth Court Judge Doris Smith-Ribner: Most Appealing of the Appellates

I've saved the best for last. Of the seven appellate jurists seeking retention, Commonwealth Court Judge Doris A. Smith-Ribner, is the most appealing. I'll vote to retain her November 6.

Who is Doris A. Smith-Ribner?

A Democrat from Pittsburgh, Smith-Ribner was first appointed to the bench, as an Allegheny County judge, in 1984. Three years later, she was elected to the Commonwealth Court. If her retention bid succeeds, she'll have to step down in 2015 when she reaches mandatory retirement age.

In contrast to an accessible judge like Cory Stevens, Smith-Ribner likes her privacy. In fact, she actually refused to answer portions of a PBA-designed questionnaire asking her about her marriage. Beyond admitting her nuptials, "any other personal information is not relevant to my qualifications and service."

Perhaps she has good reason. Smith-Ribner's husband, Paul Ribner, is the former Philly judge who handled the controversial pretrial proceedings against Mumia Abu-Jamal. He also represented Judge Doris in a whiplash claim, where a jury awarded her just $10,000 after she spurned a $35,000 defense offer. Maybe she should sue him for malpractice.

Of course, the PBA endorses her, as they do with every retention candidate.

A Judicial Voice for Reform

More than any other judge, Smith-Ribner is a voice for reform. She is precisely the kind of judge we need on an appellate court.

Government accountability. - When the PHEEA withheld information on its spending for retreats, Smith-Ribner ordered them to disclose their spending. "The Right-to-Know Law favors public access regarding any expenditure of public funds." The ripples from that important decision, which demanded government accountability, are still being felt.

Racial equality. In an extensive review of Philadelphia's troubled public schools, Smith-Ribner found 134 segregated schools, with 90 percent or more African American or Latino students, serving the majority of Philadelphia's students. She demanded improvements in the substandard quality of education at what she labeled "racially isolated minority schools."

Campaign finance limits. Smith-Ribner Court is also the judge who upheld Philly's campaign-finance limits. In her opinion, she applauds this local law as an attempt "to change the political culture."

Condemns Abuse of Eminent Domain. Many municipalities, with a little help from the U.S. Supreme Court, have participated in "revitalization" and other goofy projects that actually end up condemning private property for private use. I can imagine someone insensitively justifying the damage inflicted as a "growing pain." In fact, Pennsylvania only gets a B- from Castle Coalition for its track record. Not Judge Smith-Ribner. In one of her opinions, she rejects such a public taking. "In short, nothing in the Constitution authorizes a taking of private property for a private use."

Supports Voting Rights Activists. Judge Smith-Ribner is the jurist who penned the opinion allowing voter rights activists, including our very own Dr. Alan Brau, to challenge the use of electronic vote-counting machines that leave no paper trail. Her opinion means voters have a state constitutional right to reliable and secure voting systems, and can challenge the use of electronic voting machines “that provide no way for Electors to know whether their votes will be recognized.” You have a right to know your vote counts.

Conclusion

Despite her individual desire for privacy, Smith-Ribner has been a judicial voice for state reform. She promotes open records, detests de facto racial segregation, refuses to go along with municipalities that abuse condemnation powers, upholds campaign finance limits and believes you have a right to know that your vote counts. It's ironic that those who promote much-needed state government reform, would advocate her ouster.

Joe Paterno May Not Vote to Retain Judge Bernard McGinley, But I Will

I don't think PSU's Joe Paterno is too crazy about Bernard McGinley as a Commonwealth Court judge. Baseball fans might not like him much, either. But I'll be voting to retain this Democrat on election day.

Who is Barney McGinley?

The League of Women Voters gives us some biographical information. A Pittsburgh native, Judge McGinley got a law degree from the University of Pittsburgh in 1970. After that, he served in the reserves and was an assistant DA for four years. He also spent six years as a judge before being elected to the Commonwealth Court in 1988. He has been married to the same woman since 1973, and has never personally been involved in litigation. If retained, he will reach mandatory retirement age in 2016.

McGinley appears to be part of the Pittsburgh aristocracy. He is related to the Pittsburgh Steelers owners. He and his family even participate in debutante balls.

McGinley's Anti-Sports Rulings

Despite his strong ties to the Pittsburgh Steelers, McGinley has ruled against Pennsylvania's most revered sports hero - Coach Joe Paterno. McGinley is the jurist who ordered Penn State officials to disclose Papa Joe's salary. “Access to this information allows the public to meaningfully evaluate the wisdom and appropriateness of these state appropriations.” That decision has been appealed to the state high court.

Actually, McGinley's Penn State decision is designed to make state funded organizations more open and accountable to the public. It's the right call.

But he has another ruling that's just bizarre. It's a decision against baseball, and that's a little harder to forgive. Get a load of the facts of this case.

First, a family buys a house no more than twenty feet from the first base line of a baseball diamond. Then they decide to cut down trees along their property line, which acted as a natural barrier to keep baseballs in the park and out of their yard. Stunned by baseballs landing in their yard, this family sues to stop people from playing ball in the park.

Amazingly, they win. And when Eldred Borough appeals the decision, Judge McGinley rules against them! I believe this ruling is an unreasonable interpretation of a nuisance, and gives far too much deference to a family that should have foreseen that living in a home only twenty feet from a baseball diamond is going to present problems. I don't think Judge McGinley will get too many votes in Eldred, where people were quite irritated by a ruling that hurt baseball players of all ages.

That was just a bad call.

McGinley's Other Opinions are More Reasonable

Once you get McGinley away from the baseball diamond, his 210 reported online rulings are quite sound. In a well-reasoned decision, he struck down a "zero tolerance policy" that would have resulted in the expulsion of a straight "A" student caught with a small pen knife. He sustained an attorney's fee award against high power legal eagle John Karoly , in a dispute John had with South Whitehall Township. He wisely dissented from a ruling awarding $20,000 to a police officer who found that money in a bag during a routine traffic stop. I can't help feeling that a dirty cop will have all kinds of excuses to "find" money. McGinley also supported a strict reading of zoning law for residents who objected to a cell tower.

Conclusion

So long as you keep Judge McGinley away from anything to do with sports, he's a very clear and fair-minded judge. Lawyers who practice before him seem to like him. The Pa. bar makes this observation, "He treats lawyers fairly and courteously and is held in the highest regard for his legal knowledge and analytical abilities." I'll be voting to retain him, but I don't think he can count on too many votes in Eldred Borough.

Why I'll Vote to Retain Bonnie Leadbetter on the Commonwealth Court

In November, voters will decide whether to retain three of the Commonwealth Court's judges - Bonnie B. Leadbetter, Bernard L. McGinley and Doris A Smith-Ribner. Not surprisingly, the rubber stamps at the Pennsylvania Bar has recommended all three for retention. Today's post focuses on President Judge Bonnie Leadbetter, who is probably the Commonwealth Court's most brilliant member.

What is the Commonwealth Court?

The Commonwealth Court, created in 1970, is one of Pennsylvania's two appellate level courts. It was designed to take some of the workload from the state superior court. It includes nine judges, paid $165,342 annually. President Judge Bonnie Leadbetter, elected to a five-year term in December, is paid $170,442. She and her fellow jurists hear appeals from the final orders of state agencies and even serve as a trial court for suits against state officials. This is the court that decides Sunshine Act and open records appeals, and that reviews driver suspensions and zoning matters.

Who is Bonnie Leadbetter?

When she attended law school at the University of Pittsburgh, she was the law review's managing editor. She has been married to Gary Leadbetter, a Montgomery County attorney, for thirty-six years. They have two daughters and three grandchildren.

Fresh out of law school, she worked for five years in the demanding trial world of a Philly prosecutor. From there, she spent another five years in the even more exacting federal arena as an Assistant US Attorney. After that, she gained experience in private practice as a civil litigator. She was appointed to the Commonwealth Court in 1996, and elected the following year.
Technically a Republican, it's really hard to read a political philosophy from her opinions. I personally dealt with Judge Leadbetter during some pro se litigation against the county. She treated me with the same respect and courtesy she showed to county lawyers. Moreover, she was obviously very familiar with the pleadings and positions on both sides. But I could never read her. As she explains, "A judge should evaluate each case solely on the facts and law applicable to that case, without regard to partisan politics, personal or professional friendships or whether a decision will be popular or unpopular."

Leadbetter can't be pegged

Leadbetter has published 336 written opinions online, which easily sets her apart as a judge who works.

She is the judge who, in a minority opinion, concluded that Easton should be able to fire an water treatment plan worker who was billing both Easton and another employer for work performed at the same time and on the same day. "Averring entitlement to two salaries for working in two places at the same time is dishonesty directed to both employers , and I believe either or both can fire him for willful misconduct."

From the Easton decision, you might get the impression that she's tough on public employees. But she ruled in favor of a Bethlehem police officer who claimed a disability pension as a result of mental stress suffered on the job. She even ruled in favor of a Lehigh County corrections officer accused of having a sexual tryst with a prison inmate.

The reason for these different rulings is because she really does "evaluate each case solely on the facts and law applicable to that case."

Leadbetter's most controversial decision is her judicial abolishment of "common law marriage" in Pennsylvania. Insurance companies and pension fund administrators were having a difficult time deciding who was and wasn't a common law spouse. But Leadbetter's ruling is actually based in this common law principle, first stated by Oliver Wendell Holmes, Jr. - "The life of the law has not been logic: it has been experience." The reasons for common law marriage -- potential unavailability of a preacher and female dependence on men -- simply no longer exist.

Conclusion

On her web site, Leadbetter makes one request. She asks voters to judge her "on what I have done and not on what others may have done." I'll be voting to retain her.