Reargument grant in Corbett calendars case rare, lawyers say
August 21, 2012 Right to Know Law | Commonwealth Court
By Zack Needles / The Legal Intelligencer
Appellate lawyers across the state said the Commonwealth Court's recent decision to grant reargument en banc in a case it had originally decided en banc was extremely rare.
Rob Byer, an appellate lawyer with Duane Morris in Pittsburgh and a former Commonwealth Court judge from 1990-92, said it was "almost unprecedented that they would grant reargument, period, let alone for an en banc case."
In June, a deeply divided en banc Commonwealth Court ruled in Office of the Governor v. Scolforo that an in camera review by the OOR may be necessary in situations where an agency's affidavits are insufficient to show that records are exempt under the state's Right-to-Know Law.
The court ruled 4-3 to vacate the OOR's order directing Corbett's office to disclose unredacted versions of the calendars and instead remanded the case back to the OOR so it could conduct an in camera review of the calendars.
But on July 25, the court issued a one-page order, signed by President Judge Dan Pellegrini, granting the petition for reargument filed by Corbett's office and withdrawing its June 7 opinion and order.
Byer said not a single reargument petition was granted during his time on the bench.
Michael F. Krimmel, chief clerk of the Commonwealth Court, said it is indeed a rare occurrence, noting that the court grants on average only about 3 percent of the motions for reargument it receives each year.
According to statistics provided by Krimmel, of the 1,103 petitions for reargument filed with the court between 2004 and 2011, only 34 were granted.
The fact that the reargument petition in Office of the Governor was granted after an en banc ruling is even more unusual, Byer said.
Typically, according to Byer, en banc panels in the Commonwealth Court come about in one of two ways: The court originally schedules the case to be heard en banc or, upon circulation of a three-judge panel's draft majority opinion to all nine commissioned judges, four or more judges disagree with the result and the case, following consideration at a judicial conference, is reassigned to an en banc panel.
Byer said that circulation procedure is designed in part to avoid situations in which reargument is granted following an en banc ruling.
Krimmel had a similar take, saying most Commonwealth Court decisions are so thoroughly vetted through the circulation process that reargument is rarely deemed necessary.
Under Section 252 of the Commonwealth Court's Internal Operating Procedures, the judge who pens the draft majority opinion in a case must circulate it to all of the other commissioned judges, typically within 45 days of the date the case was assigned, so they can review the briefs in the case, voice their agreement or disagreement with the opinion and make any suggestions they may wish to make.
The judges are also required under Section 252 to voice any disagreement they may have with the writer's decision regarding whether or not to report the decision.
Under Section 253, the author of any concurring or dissenting opinion must also circulate it to the rest of the judges on the court.
Under Section 256(a), if, after circulation, four or more judges on the court object to a panel's draft opinion in a case, the case is held over for consideration at the next judicial conference, of which there are nine each year.
Another vote is taken following the conference, and if a majority of judges on the court, as well as a majority of the panel, agrees with the result in the draft opinion, that opinion is officially filed along with any concurrences or dissents, according to Section 256(a).
However, under Section 256(a), if a majority of the court and panel still cannot be determined following the judicial conference, the case is then reassigned to an en banc panel of the court.
If, following the judicial conference, the previous minority viewpoint of the court becomes the majority consensus, the case is reassigned to a new judge, who then must write a majority opinion to reflect the new position of the court, according to Section 254.
Byer told the Law Weekly earlier this month that something similar would happen in a case in which a 4-3 en banc panel circulated its opinions and the two "detached" judges — judges who did not sit on the panel — agreed with the minority vote of the panel.
In that instance, Byer said, the case would be resubmitted on briefs to a new en banc panel that has been reconstituted to reflect the majority view of the court.
But all of that is designed to happen before any opinion is officially filed.
Under Section 291 of its Internal Operating Procedures, petitions for reargument are also circulated to all nine commissioned Commonwealth Court judges and, in order to be successful, require at least five judges to vote in favor of granting them.
That means that in Office of the Governor, either a judge changed his or her mind upon reflection on the original ruling or the petition for reargument brought up an issue that hadn't been previously addressed and that the court felt was necessary to decide, Byer said.
According to Byer, the former is theoretically possible but highly unlikely.
Unless a reargument petition puts forth a new issue that hasn't yet been considered by the court, it has "almost no prayer of success," he said.
Howard J. Bashman, a solo appellate lawyer in Willow Grove, Pa., noted that even if the court did grant reargument to consider a newly advanced issue, it does not necessarily signify the inevitable reversal of its original decision.
"While [a reargument grant] may not be a favorable sign for the party who won previously, it's not a decision on the merits," Bashman said, explaining that the court may simply issue a new opinion addressing the new issue without altering the original result.
Writing for the majority in June, Judge Renée Cohn Jubelirer cited the U.S. District Court for the Eastern District of Pennsylvania's 1993 ruling in Manchester v. Drug Enforcement Administration, which held that in camera review may be necessary where agency affidavits do not offer detailed enough justifications for failing to disclose records.
Jubelirer said that in cases where it is difficult for an agency to explain in an affidavit why a record is deliberative without disclosing the deliberative information, in camera review is sometimes necessary.
"We recognize that the exemptions from disclosure must be narrowly construed due to the RTKL's remedial nature, which is 'designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions,'" Jubelirer wrote, quoting the Commonwealth Court's 2010 opinion in Bowling v. Office of Open Records. Nevertheless, in order to justify the exemption, an agency cannot be required to disclose the very information it seeks to protect because that would eviscerate the exemptions provided for in the RTKL."
Jubelirer was joined by Pellegrini, as well as Judges Patricia A. McCullough and Bonnie Brigance Leadbetter.
Judge Robert Simpson penned a dissenting opinion, saying he disagreed with the majority that an in camera review by the OOR was an appropriate remedy to an insufficient affidavit and that such a ruling creates "a new, time-consuming process which rewards vagueness and burdens requesters."
"Worse, the parties here did not request in camera review, and no party complained that the current record was inadequate," Simpson said. "To the contrary, the governor's office contended that its affidavit was sufficient to carry its burden of proving the basis for its redactions."
Simpson was joined by Judges Bernard L. McGinley and Mary Hannah Leavitt.
Simpson said the majority had "ignored" the state Supreme Court's 2001 ruling in LaValle v. Office of General Counsel of the Commonwealth, in which the justices urged the Commonwealth Court to develop standards aimed at ensuring that state agencies provide sufficient detail about the contents of requested records for appellate review.
Appellate lawyers across the state said the Commonwealth Court's recent decision to grant reargument en banc in a case it had originally decided en banc was extremely rare.
Rob Byer, an appellate lawyer with Duane Morris in Pittsburgh and a former Commonwealth Court judge from 1990-92, said it was "almost unprecedented that they would grant reargument, period, let alone for an en banc case."
In June, a deeply divided en banc Commonwealth Court ruled in Office of the Governor v. Scolforo that an in camera review by the OOR may be necessary in situations where an agency's affidavits are insufficient to show that records are exempt under the state's Right-to-Know Law.
The court ruled 4-3 to vacate the OOR's order directing Corbett's office to disclose unredacted versions of the calendars and instead remanded the case back to the OOR so it could conduct an in camera review of the calendars.
But on July 25, the court issued a one-page order, signed by President Judge Dan Pellegrini, granting the petition for reargument filed by Corbett's office and withdrawing its June 7 opinion and order.
Byer said not a single reargument petition was granted during his time on the bench.
Michael F. Krimmel, chief clerk of the Commonwealth Court, said it is indeed a rare occurrence, noting that the court grants on average only about 3 percent of the motions for reargument it receives each year.
According to statistics provided by Krimmel, of the 1,103 petitions for reargument filed with the court between 2004 and 2011, only 34 were granted.
The fact that the reargument petition in Office of the Governor was granted after an en banc ruling is even more unusual, Byer said.
Typically, according to Byer, en banc panels in the Commonwealth Court come about in one of two ways: The court originally schedules the case to be heard en banc or, upon circulation of a three-judge panel's draft majority opinion to all nine commissioned judges, four or more judges disagree with the result and the case, following consideration at a judicial conference, is reassigned to an en banc panel.
Byer said that circulation procedure is designed in part to avoid situations in which reargument is granted following an en banc ruling.
Krimmel had a similar take, saying most Commonwealth Court decisions are so thoroughly vetted through the circulation process that reargument is rarely deemed necessary.
Under Section 252 of the Commonwealth Court's Internal Operating Procedures, the judge who pens the draft majority opinion in a case must circulate it to all of the other commissioned judges, typically within 45 days of the date the case was assigned, so they can review the briefs in the case, voice their agreement or disagreement with the opinion and make any suggestions they may wish to make.
The judges are also required under Section 252 to voice any disagreement they may have with the writer's decision regarding whether or not to report the decision.
Under Section 253, the author of any concurring or dissenting opinion must also circulate it to the rest of the judges on the court.
Under Section 256(a), if, after circulation, four or more judges on the court object to a panel's draft opinion in a case, the case is held over for consideration at the next judicial conference, of which there are nine each year.
Another vote is taken following the conference, and if a majority of judges on the court, as well as a majority of the panel, agrees with the result in the draft opinion, that opinion is officially filed along with any concurrences or dissents, according to Section 256(a).
However, under Section 256(a), if a majority of the court and panel still cannot be determined following the judicial conference, the case is then reassigned to an en banc panel of the court.
If, following the judicial conference, the previous minority viewpoint of the court becomes the majority consensus, the case is reassigned to a new judge, who then must write a majority opinion to reflect the new position of the court, according to Section 254.
Byer told the Law Weekly earlier this month that something similar would happen in a case in which a 4-3 en banc panel circulated its opinions and the two "detached" judges — judges who did not sit on the panel — agreed with the minority vote of the panel.
In that instance, Byer said, the case would be resubmitted on briefs to a new en banc panel that has been reconstituted to reflect the majority view of the court.
But all of that is designed to happen before any opinion is officially filed.
Under Section 291 of its Internal Operating Procedures, petitions for reargument are also circulated to all nine commissioned Commonwealth Court judges and, in order to be successful, require at least five judges to vote in favor of granting them.
That means that in Office of the Governor, either a judge changed his or her mind upon reflection on the original ruling or the petition for reargument brought up an issue that hadn't been previously addressed and that the court felt was necessary to decide, Byer said.
According to Byer, the former is theoretically possible but highly unlikely.
Unless a reargument petition puts forth a new issue that hasn't yet been considered by the court, it has "almost no prayer of success," he said.
Howard J. Bashman, a solo appellate lawyer in Willow Grove, Pa., noted that even if the court did grant reargument to consider a newly advanced issue, it does not necessarily signify the inevitable reversal of its original decision.
"While [a reargument grant] may not be a favorable sign for the party who won previously, it's not a decision on the merits," Bashman said, explaining that the court may simply issue a new opinion addressing the new issue without altering the original result.
Writing for the majority in June, Judge Renée Cohn Jubelirer cited the U.S. District Court for the Eastern District of Pennsylvania's 1993 ruling in Manchester v. Drug Enforcement Administration, which held that in camera review may be necessary where agency affidavits do not offer detailed enough justifications for failing to disclose records.
Jubelirer said that in cases where it is difficult for an agency to explain in an affidavit why a record is deliberative without disclosing the deliberative information, in camera review is sometimes necessary.
"We recognize that the exemptions from disclosure must be narrowly construed due to the RTKL's remedial nature, which is 'designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions,'" Jubelirer wrote, quoting the Commonwealth Court's 2010 opinion in Bowling v. Office of Open Records. Nevertheless, in order to justify the exemption, an agency cannot be required to disclose the very information it seeks to protect because that would eviscerate the exemptions provided for in the RTKL."
Jubelirer was joined by Pellegrini, as well as Judges Patricia A. McCullough and Bonnie Brigance Leadbetter.
Judge Robert Simpson penned a dissenting opinion, saying he disagreed with the majority that an in camera review by the OOR was an appropriate remedy to an insufficient affidavit and that such a ruling creates "a new, time-consuming process which rewards vagueness and burdens requesters."
"Worse, the parties here did not request in camera review, and no party complained that the current record was inadequate," Simpson said. "To the contrary, the governor's office contended that its affidavit was sufficient to carry its burden of proving the basis for its redactions."
Simpson was joined by Judges Bernard L. McGinley and Mary Hannah Leavitt.
Simpson said the majority had "ignored" the state Supreme Court's 2001 ruling in LaValle v. Office of General Counsel of the Commonwealth, in which the justices urged the Commonwealth Court to develop standards aimed at ensuring that state agencies provide sufficient detail about the contents of requested records for appellate review.
