What Will the Court Say About Religious Freedom?

LESLIE C. GRIFFIN

UNLV Boyd School of Law professor Leslie C. Griffin comments on the oral argument the U.S. Supreme Court heard this week in Espinoza v. Montana Department of Revenue, which presents the justices with questions about the meaning of the Free Exercise and Establishment Clauses of the First Amendment. Griffin describes the questioning by the justices and predicts that the outcome in this case will demonstrate how many justices still believe in the separation of church and state.

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In Re: Grand Jury Investigation

Docket: 18 MM 2019

Opinion Date: January 22, 2020

Judge: Max Baer

Areas of Law: Constitutional Law, Criminal Law

Petitioner petitioned the Pennsylvania Supreme Court to challenge the public release of the investigating grand jury report of Grand Jury Investigation No. 18 (“Report”). Petitioner initially claimed the supervising judge of the investigating grand jury erred by ordering the public release of the Report because the Report was not statutorily authorized by the Investigating Grand Jury Act, 42 Pa.C.S. secs. 4541-4553. In the alternative, Petitioner contended the supervising judge erred by ordering the public release of the Report because the Act was unconstitutionally applied in this case. After review, the Pennsylvania Supreme Court granted Petitioner relief based on the statutory claim and, thus, did not reach the merits of the constitutional claim. The matter was remanded with instructions to seal the Report permanently.

Pennsylvania v. Cost

Docket: 39 EAP 2018

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Constitutional Law, Criminal Law

Appellant Harold Cost was arrested for various firearms offenses and filed a motion to suppress. At an ensuing hearing, the lead investigating officer initially explained that he was patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 p.m., when his partner observed Appellant and three other individuals in an alley. The officer suspected "there might be something going on back there," and circled back around the block to stop in front of the alleyway. The officer did not activate his vehicle's sirens or lights, but did announce "police" when exiting the vehicle. The issue this case presented for the Pennsylvania Supreme Court's review centered on whether a seizure occurred during this police-citizen encounter, specifically the officer’s retention of appellant's identification card. The question reduced to whether a reasonable person would have felt free to ignore the police presence and proceed about his business while, amongst the other circumstances presented, the person was questioned by police as an officer continued to hold his identification and conduct a warrant check. The Court concluded, as did the suppression court, appellant was indeed seized.

Pennsylvania v. Cost

Docket: 39 EAP 2019

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Constitutional Law, Criminal Law

Appellant Harold Cost was arrested for various firearms offenses and filed a motion to suppress. At a hearing, the lead investigating officer initially explained that he was patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 p.m., when his partner observed Appellant and three other individuals in an alley. The officer suspected "there might be something going on," circled the block and stoped his vehicle in front of the alleyway to investigate. The officer did not activate the vehicle's emergency sirens or lights, however, he announced "police" when exiting the vehicle. The issue this case presented was whether the officer's retention of an individual's identification card was a seizure in terms of the Fourth Amendment. Specifically, the issue reduced to whether a reasonable person would feel free to ignore the police presence and proceed about his business while, amongst the other circumstances presented, the person is questioned by police as an officer continues to hold his identification and conducts a warrant check. The Pennsylvania Supreme Court concurred with the suppression court that appellant was indeed seized.

Pennsylvania v. Parrish

Docket: 733 CAP

Opinion Date: January 22, 2020

Judge: Debra McCloskey Todd

Areas of Law: Constitutional Law, Criminal Law

Appellant Michael Parrish appealed a Monroe County Court of Common Pleas order denying his petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). Appellant was sentenced to death for the 2009 double murder of his girlfriend, Victoria Adams and their 19-month-old son, Sidney Parrish. Following the Pennsylvania Supreme Court's request for supplemental briefing, and after careful review, the Supreme Court held that Appellant’s Statement of Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b) was so vague as to render all of his claims waived for purposes of this appeal. Additionally, the Court held that appellate counsel’s filing of a "woefully deficient statement, one which precludes merits review of all appellate issues," constituted ineffective assistance of counsel per se, warranting reinstatement of Appellant’s right to file a Rule 1925(b) statement nunc pro tunc. Accordingly, the Supreme Court remanded to the PCRA court for further proceedings.

Pennsylvania v. Starry

Docket: 19 WAP 2019

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Constitutional Law, Criminal Law

Appellant Michelle Starry was charged, inter alia, with a Pennsylvania Vehicle Code Section 3802(c) offense. She claimed the Commonwealth failed, prior to trial, to establish a prima facie case that her blood alcohol level was 0.16 percent or greater within two hours after driving. Appellant’s arrest occurred after she was involved in a single-car accident. The common pleas court conducted a hearing on the motion, and allowed the Commonwealth to supplement the preliminary hearing evidence. Applying Section 3802(g)(1), the court opined that the prosecution offered no good reason for failing to attempt to secure a more prompt blood test, other than stating that law enforcement policy in cases of serious accidents was to obtain a search warrant for the results of medical blood tests. "And the court suggested that there should have been some elevated concern about the two-hour window, given that the time of the accident was unknown." On the Commonwealth’s interlocutory appeal, the Superior Court reversed. The Supreme Court concurred with the Superior Court, finding the Commonwealth established probable cause that Appellant committed the Section 3802(c) offense and that a jury would be within its province to determine that her blood alcohol content was at least 0.16 percent within two hours after driving.

In the Interest of: N.B.-A.

Docket: 11 EAP 2019

Opinion Date: January 22, 2020

Judge: Debra McCloskey Todd

Areas of Law: Criminal Law, Family Law, Government & Administrative Law

At issue was whether the evidence presented against mother E.A. was sufficient to establish she was a perpetrator of child abuse under the Child Protective Services Law ("CPSL"). In 2016, Mother presented to a Philadelphia emergency room with her six year old daughter, N.B.-A. ("Child"). Mother reported that Child had been experiencing vaginal discharge for three days. In response to questions by hospital staff, Mother indicated that she had no concerns that Child may have been sexually abused. Lab testing of the vaginal swabs revealed that Child had chlamydia, a sexually-transmitted infection. Although Mother told hospital staff no males lived in the home, Child stated that she lived with Mother, Grandmother, and three adult male “uncles.” In actuality, the males were Mother’s husband and Mother’s two stepsons. The Pennsylvania Supreme Court determined that the evidence in this case was insufficient to establish Mother abused her child: "Applying the Section 6381(d) presumption to cases such as the one before us, where DHS presented no evidence that Mother was or should have been aware that Stepbrother posed a risk to Child, or that he or anyone else was abusing Child, would essentially allow a parent to be deemed a perpetrator of child abuse by omission in every case where a child is abused, placing the burden on the parent to prove that they had no reason to believe that their child was at risk."

Briggs, et al v. Southwestern Energy

Docket: 63 MAP 2018

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Energy, Oil & Gas Law, Real Estate & Property Law, Zoning, Planning & Land Use

At issue was whether the rule of capture immunized an energy developer from liability in trespass, where the developer used hydraulic fracturing on the property it owned or leased, and such activities allowed it to obtain oil or gas that migrated from beneath the surface of another person’s land. Plaintiffs’ property was adjacent to a tract of land leased by Appellant Southwestern Energy Production Company for natural gas extraction. Plaintiffs alleged that Southwestern “has and continues to extract natural gas from under the land of the Plaintiffs,” and that such extraction was “willful, unlawful, outrageous and in complete conscious disregard of the rights and title of the Plaintiffs in said land and the natural gas thereunder.” Southwestern alleged that Plaintiffs’ claims were barred by, inter alia, the rule of capture, and sought declaratory relief confirming its immunity from liability. The court of common pleas court granted Southwestern’s motion for summary judgment, denied Plaintiffs’ motion for partial summary judgment, and denied the motion to compel as moot. The court agreed with Southwestern’s position that the rule of capture applied in the circumstances and, as such, Plaintiffs could not recover under theories of trespass or conversion even if some of the gas harvested by Southwestern had drained from under Plaintiffs’ property. The Superior Court reversed, holding that hydraulic fracturing could give rise to liability in trespass, particularly if subsurface fractures ... crossed boundary lines. The Pennsylvania Supreme Court rejected the concept that the rule of capture was inapplicable to drilling and hydraulic fracturing that occurred entirely within the developer’s property solely because drainage was the direct or indirect result of hydraulic fracturing. Nevertheless, the Supreme Court found the Superior Court panel’s opinion "to suffer from multiple infirmities," reversed and remanded with directions.

Thompson v. Thompson

Docket: 36 WAP 2018

Opinion Date: January 22, 2020

Judge: Donohue

Areas of Law: Family Law

At issue before the Pennsylvania Supreme Court was whether the Superior Court erred in holding a suspended sentence imposed upon appellee Ashley Thompson for civil contempt of a child support order was illegal because suspended sentences were not authorized by the Domestic Relations Code section 4345. The Supreme Court determined a suspended sentence was not a legal sanction for contempt of a support order, thus affirming the Superior Court.

City of Pgh v. Frat. Order of Police

Docket: 2 WAP 2019

Opinion Date: January 22, 2020

Judge: Thomas G. Saylor

Areas of Law: Government & Administrative Law, Labor & Employment Law

Appellant Fraternal Order of Police ("FOP") sought the benefit of a grievance arbitration award that was overturned by an appeals court. The City of Pittsburgh hosts an annual marathon which, in 2016, was organized and administered by several large, private companies. About 100 police officers were needed to provide crowd control, road closures, and traffic management for the event. Initially, the Bureau of Police solicited volunteers from among those officers who would otherwise be off duty to work under a secondary employment arrangement. Numerous positions remained unfilled, and the Bureau asked approximately 70 officers to work on their "pass days." These officers were paid a minimum of four hours overtime at a time-and-a-half rate, plus additional overtime for any more hours worked. Pursuant to the terms of the CBA, the FOP filed a grievance asserting the City violated the bargaining agreement by “mandating officers work secondary employment when the CBA states it is strictly voluntary.” The City stressed that the CBA specifically established a rate of pay for scenarios in which officers are required to work outside of their regularly scheduled shifts, and that officers had been compensated by the City in strict conformity with this provision. An arbitrator ultimately ruled in favor of the FOP, but an appeals court reversed, finding "no authority within the four corners of the collective bargaining agreement to justify the award." Disagreeing with the Commonwealth Court's affirmance of the appeals court, the Pennsylvania Supreme Court reversed and remanded the case for reinstatement of the arbitration award.