Center for American Progress Agrees with me on Drugs

I have previously written in this space (see below) about drug issues being a health issue and not a criminal justice issue. Here is a new column from the Center for American Progress that agrees with me: click to see column.


Protecting the First Amendment from Senator Scott Martin

On Friday, May 5th, PA State Senator Scott Martin forwarded a request for co-sponsorship for a bill he will later introduce. The stated reason for the new law is to help local and state governments collect the costs associated with "illegal or destructive behavior" that occurs during an otherwise legal protest.

One paragraph in Senator Martin's memo is extremely concerning:

In addition to remedies currently allowed by law, this legislation would allow for the recovery of costs by holding a person or persons civilly liable for response costs related to a demonstration if the person is convicted for rioting or is a public nuisance under 18 Pa.C.S. § 5501 or §6504, or if the person is involved in hosting the demonstration. (emphasis added).

This appears to say that anyone who hosts, or is part of a hosting organization, of any otherwise legal protest would be responsible for any response costs associated with the demonstration (if one reads this paragraph broadly) or if anyone who attends the protest is later convicted of rioting or "is a public nuisance" under PA law (if one reads this paragraph narrowly).

First (but less importantly), let me point out that under PA law, a person cannot be a public nuisance. The definition of "public nuisance" according to Title 53 Section 6103 of the PA Consolidated Statutes is:

"Public nuisance."  Property which, because of its physical condition or use, is regarded as a public nuisance at common law or has been declared by the appropriate official a public nuisance in accordance with a municipal code.


Secondly, but more importantly, holding a person or an organization of people who "host" an activity protected by the First Amendment of the US Constitution and Article 1 Section 20 of the PA Constitution liable for the costs related to either general "response costs" or more particularly those governmental costs related to the actions of someone at the protest clearly would have a chilling effect on the exercise of those constitutional rights.

This type of legislation would not pass the proverbial "laugh test" in court and I urge the PA Senate to carefully read the details of Senator Martin's proposal before agreeing to cosponsor or vote in favor of it.

Why Republicans, Democrats, and Independents Should Support My Campaign

Republicans (and Democrats and Independents) have many reasons to support my campaign to become an appellate court judge in Pennsylvania. Some of these include conservation, limiting government to the Constitution, and the cost of government.

As the Philadelphia Inquirer pointed out on Monday, the Republican Party has an excellent history of conservation/environmental protection starting at the beginning of the 20th Century with President Theodore Roosevelt. Closer to our time, over a 6 year period (1965-1970) in which the PA State Senate was controlled by Republicans and the PA State House was sometimes controlled by Republicans and sometimes by Democrats, our legislature took strong measures to protect the environment, measures which were signed into law by a Republican governor. In addition, two sessions of the legislature passed, and the people voted by a four to one margin, to add an Environmental Rights Amendment to the Pennsylvania Constitution.

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Is Trump's New Immigration Order Legal?

President Trump's first executive order concerning immigration was rightly condemned as discriminating based on religious grounds. Not only were the president's statements and tweets evidence, but so were the comments of Rudy Giuliani, who boasted that he helped write the executive order as a "legal" way to ban all Muslims from entering the country. Thankfully, the federal courts did not agree that this was a legal way.

Now the president has issued a subsequent order, attempting to deal with some of the legal issues. It no longer gives preference to non-Muslims, although the order only applies to six Muslim-majority countries. The courts have long held that if it is apparent the intent of a governmental action was unconstitutional, then they will look past the "four corners" of the document under question to determine if it is unconstitutional.  If this is not enough for the courts, I can suggest another alternative.

According to Article VI of the US Constitution, all treaties in which the United States is a party shall be treated as part of the "supreme law of the land."

The International Covenant on Civil and Political Rights is a treaty to which the United States is a party. The first paragraph of Article 2 of that treaty states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (emphasis added).

In addition, Article 26 of that treaty states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (emphasis added).

The new order, while not differentiating between religious beliefs on its face (the courts must determine intent), does differentiate between immigrants and visitors based on national origin in direct violation of this treaty and, therefore, must be struck down as illegal.


Drug Use as a Crime or a Public Health Issue?

Much has been written about the opioid addiction crisis in Pennsylvania and around the country. It is a serious issue and must be addressed seriously . . . through health resources. In Montgomery County, where I live, one Magisterial District Judge, Andrea Duffy, implemented an excellent idea. She put together a collection of community groups working to fight the addiction crisis in Montgomery County and formed the Drug Addiction Resource Alliance. You can read more about it by clicking here.

If elected to the PA Superior Court, I would work to create a statewide version of what Judge Duffy has created in Montgomery County. However, as a judge who would hear appeals from criminal cases, I have a simple question:

In a system of limited government that values freedom, what power does the government claim in being able to criminalize private behavior that, if harmful to anyone, is harmful to the person doing the behavior?  In other words, is it constitutional for a government to label individuals involved in behavior we term "victimless crimes" as criminals? I can tell you that as a judge I would ask that question. Ethically, I cannot tell you how I might answer it as each case must be decided on the law and the facts of that particular case.

The question I ask goes beyond addiction. The US Supreme Court has already declared it unconstitutional to convict someone for being a drug addict. The question goes to individuals who might choose to avail themselves of an occasional marijuana joint instead of the legally protected drugs of alcohol or tobacco. It also goes to the question of autonomy. It is not illegal for a competent adult to voluntarily have sexual relations with another voluntary competent adult. Why then is it illegal for one of them to pay the other for that experience? Certainly an argument could be made that illegal drugs are sometimes mixed with dangerous substances or that someone having sex for a living might be transmitting a deadly illness. There are two answers to that which must be considered. First, the person purchasing the drugs or sex is certainly aware of the dangers and is choosing to do so anyway. Second, the government has a right to regulate such exchanges for the safety of the consuming public. Just because they choose to not regulate it for safety, does that give them the power to ban it?

All of these are questions that judges need to consider in any criminal case involving a victimless crime.

PA Department of Environmental Protection Ignores PA Constitution

On Thursday, February 9th, the journal Elementa: Science of the Anthropocene published a study that demonstrated a significant rise in methane levels in the air in northeastern Pennsylvania, where the production of natural gas is high.

On Monday, February 13th, the Pennsylvania Department of Environmental Protection approved a pipeline project to carry this shale-gas 350 miles from western Pennsylvania and other states all the way to Marcus Hook on the Delaware River (eastern Pennsylvania), endangering streams and wetlands as well as the air we breathe. This project has been supported by both Republican Governor Tom Corbett and Democratic Governor Tom Wolf.

Article 1, Section 27 of the PA Constitution reads: "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

Our Courts Matter

From the Center for American Progress: Our Courts Matter for the Muslim Community

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PA Senate Again attempts to Violate the Constitution

The Pennsylvania Senate appears to have put the US Constitution through the shredder. I previously posted their clearly unconstitutional bill attempting to limit abortion at 20 weeks gestational age. They have also passed a bill to deny all state funding to any local municipality or county that they deem a "sanctuary" locale. I call those local governments "Constitutional" locales. This is why:

The US Immigration and Customs Enforcement (ICE) sometimes issues what are referred to as "detainers." Detainers are only requests, not warrants. Ever since the US Supreme Court's decision in Arizona v. United States in 2012, it has been clear that local law enforcement may not rely on an ICE detainer to hold someone. Indeed, the 3rd Circuit Court of Appeals has held that if the ICE detainer were viewed as an order to local officials, that would violate the 10th Amendment. And if localities choose to hold someone based on an ICE detainer, and the person held is legally in the United States, then the locality that made the decision to hold that person is financially responsible if sued for a violation of the person's constitutional rights. ICE is not responsible, since a detainer is a request for cooperation from local authorities and is not an arrest warrant. To get an arrest warrant, the government has to show a judge that it is more likely than not that the person has violated the law.

If the government cannot show that the person has probably violated the law there is no legal authority to hold that person in custody, or as the 4th Amendment phrases it, "seizure" of the person.

It is clearly unconstitutional for either Pennsylvania or the United States to cut off funding to communities just because they want to follow the Constitution.

PA Senate attempts to Violate the US Constitution

The Pennsylvania Senate, ignoring long-established Constitutional precedent, has passed a bill banning abortion after 20 weeks. This lawless act is best viewed in context of Constitutional history. This summary is provided by

In 1976, for example, in a case called Planned Parenthood v. Danforth, the Court said, “we recognized inRoe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility in the term.”

Three years later in Colautti v. Franklin, the Court said it again, but with a bit more specificity: “[N]either the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus.” (Emphasis added.)

In 1989, the decision in Webster v. Reproductive Health Services was even more specific than it had been in Colautti. It said, “the legislature could not give one element such as gestational age, dispositive weight.”

And in 1992, the Court in Planned Parenthood v. Casey reaffirmed the central holding of Roe v. Wade—that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”

Luckily, even if the PA House of Representatives agrees to pass it, we currently have a governor who has promised to veto it. But PA recently went Republican in the 2016 presidential election and it is possible that after the 2018 gubernatorial election we will have a governor who would sign such a bill into law. 

If that happens, any judge worthy of the title "judge" will strike down such an unconstitutional law.