Lawyers argued over how to fill a Lackawanna County commissioner vacancy Tuesday, but a three-judge panel didn’t immediately rule or say when they would.
Common Pleas Court Senior Judges Carmen D. Minora, Vito P. Geroulo and Robert A. Mazzoni will review written and verbal arguments before answering two questions that will lead to filling the vacancy created when Democratic Commissioner Matt McGloin resigned Feb. 24.
First, they must decide if the county and Democratic Commissioner Bill Gaughan have the right to challenge the process the county Democratic Party used to recommend three potential replacements.
The party says they don’t.
Second, the judges must decide if the Democratic Party process is the right one.
Meeting behind closed doors, the party voted 26-3 with two abstentions on Feb. 27 to recommend former county planning and economic development director Brenda Sacco; Olyphant Council President James Baldan; and Scranton School Director Bob Casey.
Under this process, which is outlined in the county Home Rule Charter, the full-time judges must pick one of the three.
The county and Gaughan contend that’s the wrong process.
The judges had the lawyers tackle the county and Gaughan’s right to challenge first.
Attorneys Paul J. LaBelle and Howard Rothenberg, representing Republican Commissioner Chris Chermak, argued against it.
Rothenberg said Gaughan could challenge the process as a taxpayer or as a Democrat without using county tax revenues.
“That’s fair, but not as a commissioner,” he said. “He never got the authorization to do what he did.”
He contended Chermak and Gaughan should have officially voted at a public meeting to challenge the process and didn’t. Chermak has said he would have voted no because replacing McGloin is strictly a political process that shouldn’t cost taxpayers.
“Lackawanna County clearly has nothing to do with this,” Rothenberg said.
Attorney Adam Bonin, the party’s lawyer, agreed. He disputed county legal arguments that Gaughan and the county could challenge because the county faced an “injury.” He pointed out the county continues to function.
“It’s questionable what kind of injury the county has received here,” Bonin said. “There’s no constitutional right at stake here ... How he’s been injured by this is not something I can easily discern.”
Attorney Daniel Brier, representing Gaughan and the county, said Gaughan has an “immediate, substantial and direct” interest in who the new commissioner is and a duty to act because he swore an oath to protect the state constitution, Brier said.
“If not Commissioner Gaughan, then who?” Brier asked the judges. “Who has more interest than Bill Gaughan in seeing county duties carried out by a properly appointed Board of Commissioners? ... Are we really fighting about this?”
Brier also argued the state code governing counties explicitly gives county solicitors the duty to start legal actions on matters that affect county interests. That doesn’t require the commissioners to vote, he said. He cited a previous court case from another county that allowed a solicitor to act, despite opposition from commissioners.
“He (county solicitor Don Frederickson) didn’t need and doesn’t need the permission of the commissioners to bring a claim,” Brier said.
They were just the arguments about whether the court case should exist.
Then the lawyers turned to the larger issue: whether the full-time judges should start over, interview new candidates and pick one or just pick from the Democratic Party list.
Brier thinks they should start over. The state law governing counties says the county’s judges get to fill county commissioner vacancies. The county Home Rule Charter says that, too. The county Democratic Party went by the charter.
Brier argued that was wrong. The right process, he said, starts with the state constitution, which says the state Supreme Court sets the rules for the way the court system operates.
Brier said that includes setting rules for the way judges fill vacancies in elected offices. In 2019, the Supreme Court established administrative Rule 1908, that outlines the way to fill vacancies.
Rule 1908 requires common pleas judges to seek applications, interview candidates and pick the replacement. That’s the right process, not the one in the charter, he said.
He argues the state constitution says any laws that conflict with the Supreme Court’s rules “shall be suspended,” and the Home Rule Charter conflicts with Rule 1908.
“We don’t have to guess because the Pennsylvania constitution answers the question for us,” Brier told the judges. “If we didn’t have 1908, I wouldn’t be here.”
Considering that, Geroulo asked, why doesn’t Rule 1908 defer to the Home Rule Charter, which allows judges to fill vacancies but lets the party play a role.
That’s because of a 2000 Lackawanna County case that said state law trumps the charter when they conflict, Brier said.
Back then, the county judges appointed Republican Andy Jarbola to fill a district attorney vacancy until the previous district attorney’s term expired on Dec. 31, 2001.
Citing a Home Rule Charter provision that required a special election to fill the seat, the county disagreed and set a special election for April 2000 to fill the rest of the term. The county Republican Party sued.
The state Commonwealth Court blocked the special election. The appeals court said state law trumps charters when they conflict, and state law requires people appointed to vacancies to serve until a term expires.
“Your colleagues on the appellate court said that is settled,” Brier told Geroulo.
Bonin disagreed.
Allowing Rule 1908 to control the process means violating a separation of powers between legislators and courts, he said.
Basically, replacing a commissioner amounts to a “legislative power,” he said. Rules for establishing home rule charters are set by the state General Assembly. Lackawanna County voters authorized the local charter in 1977.
“What it is not is a judicial power,” he said. “This is an inherently legislative power ... The citizens of Lackawanna County gave power to the county Court of Common Pleas to pick from the party” list, Bonin said.
