After four months of wrangling over how to replace former Lackawanna County Commissioner Matt McGloin, the state Supreme Court may decide the process.
A lawyer for the county and Commissioner Bill Gaughan asked the state’s highest court Wednesday to exercise its King’s Bench power and take the case away from the Commonwealth Court, the appeals court that hears government-related cases.
“A clear, final ruling from this court is necessary to ensure the integrity of the appointment process and to promote confidence in candidates selected by the courts to fill vacancies in public office,” attorney Dan Brier wrote in his “application for exercise of extraordinary jurisdiction."
Brier asked the Supreme Court to take over even though he filed one of the appeals before the Commonwealth Court.
"The Pennsylvania Supreme Court’s own rule is at the heart of this dispute," he said in an email. "We filed in the Supreme Court because we believe that it will want to be the final word."
Legal history to date
McGloin resigned Feb. 24 to take another job. Three days later, under provisions of the county home rule charter, the county Democratic Party Executive Committee recommended three potential replacements.
They are former county planning and economic development director Brenda Sacco, Olyphant Council President James Baldan and Scranton School Director Bob Casey, no relation to the former U.S. senator.
Under the charter, the county’s common pleas court judges are supposed to pick one of the three. The court scheduled interviews but cancelled them when Gaughan and the county sued to alter the process.
Citing state law and a Supreme Court administrative rule that gives county common pleas courts the power to replace commissioners, Gaughan and the county court asked the court to ignore the charter process and start over. Gaughan, who favored Dunmore Mayor Max Conway to replace McGloin, wants the common pleas court judges to seek new applications and decide from them.
Attorney Adam Bonin, the Democratic Party’s lawyer, challenged that. Bonin argued Gaughan didn’t have the right — known in legal terms as standing — to challenge the process. Bonin also argued the county shouldn’t be part of the challenge because Gaughan and Commissioner Chris Chermak never voted publicly on it.
Chermak’s solicitor, attorney Paul LaBelle, agreed the county shouldn’t be part of the challenge for the same reason.
Bonin said allowing an administrative court rule to trump the charter would mean giving the Supreme Court policymaking power the state constitution doesn’t allow.
Brier argued the constitution specifically says the Supreme Court makes all the rules that govern courts, the court created the rule and state law says common pleas courts get to replace commissioners.
A panel of three county senior common pleas judges agreed Gaughan has standing and could challenge on his own, but the county couldn’t be a part of it.
Two of the three sided with the Democratic Party on the process. They ruled the idea the judicial rule trumps the charter is “fatally flawed for numerous reasons.”
They said the state constitution allows home rule charters to claim any power the constitution or state law doesn’t forbid. The constitution also expressly says its provisions for regulating county government apply to every county but home rule charter counties, they wrote.
Brier appealed the rulings on the selection process and the county’s role to the Commonwealth Court. Bonin appealed the ruling on Gaughan’s standing.
Brier raises AI concern
Brier raised one matter in both his appeals that wasn’t part of arguments before the county common pleas judges.
Before ruling, the judges asked Gemini, Google’s artificial intelligence research engine, why home rule charters are “special and desirable.”
Gemini said charters allow “significant autonomy and flexibility” and gives local towns the power to “tailor their government structure and power to best suit their unique needs and circumstances rather than adhering to a one-size-fits-all state code.”
The response accurately reflects the well-known reasoning of home rule charter proponents.
In asking the Supreme Court to step in, Brier argued the question posed to Gemini was biased.
“This AI prompt is not neutral, balanced or aimed at fair analysis, but rather is slanted to generate only positive attributes,” Brier wrote.
He also repeated his earlier arguments for a new selection process. Bonin has not responded to the request for the Supreme Court to intervene.
Courts nationwide are debating the appropriateness of using AI for legal research.
EDITOR'S NOTE: Commissioner Bill Gaughan’s lawyer, attorney Dan Brier, is a partner of the Myers, Brier & Kelly law firm. Attorney Robert T. Kelly, Jr., also a firm partner, is a WVIA board member.
