Lackawanna County Commissioner Bill Gaughan formally asked the state’s highest court on Tuesday to overturn lower court rulings that allow political parties to suggest replacements for former commissioners.
Gaughan, a Democrat himself, and the county urge the Supreme Court to require the county common pleas court to choose ex-Commissioner Matt McGloin’s replacement without having to pick from three people recommended by the county Democratic Party.
They contend a Supreme Court administrative rule leaves the process entirely in the common pleas court’s lap and excludes political parties from having a direct say.
The Supreme Court can reject the appeal without hearing further argument.
Gaughan and the county tried the same argument before a panel of three senior county common pleas court judges and lost. The judges ruled 2-1 to uphold the county home rule charter process for picking replacements.
In the home rule charter process, the party of the elected county official who leaves office recommends three potential replacements and the judges pick one.
In this case, McGloin was a Democrat when he resigned Feb. 24 to take a football-related job that he quit a day later.
Three days after McGloin resigned, the county Democratic Party recommended three potential replacements - former county planning and economic development director Brenda Sacco; Olyphant Council President James Baldan; and Scranton School Director Bob Casey.
Gaughan, who wanted Dunmore Mayor Max Conway, balked and challenged the home rule charter process in court.
After losing in county court, he appealed to the state Commonwealth Court, which last month upheld the county court ruling.
The county and Commonwealth courts unanimously ruled only Gaughan – and not the county - could challenge the process because the Board of Commissioners never authorizied a challenge. Gaughan is asking the Supreme Court to overturn these rulings, too.
Gaughan and the county argued the state Constitution gives only courts the right to replace county elected officials.
Based on that, the Supreme Court set up an administrative rule that allows county courts of common pleas to fill vacancies and that process trumps the home rule charter process that allows a political party to recommend, they contend.
“This power is exclusive (to courts),” wrote attorney Dan Brier, the lawyer for the county and Gaughan. “Any law that is inconsistent with a rule prescribed by the Supreme Court is void.”
The county Democratic Party says the charter process is the right one, and allowing a court to exclude the party would amount to judicial overreach the Supreme Court did not intend.
Because neither the county common pleas nor the Commonwealth Court published their opinions, Brier argues, the Supreme Court should step in and decide the matter once and for all.
Not publishing an opinion means the opinion may not be cited as binding law in other cases, only as “persuasive authority.”
In other words, courts are free to ignore non-published opinions.
Last week, attorney Adam Bonin, the Democratic Party’s lawyer, asked the Commonwealth Court to formally publish its opinion to make it binding.
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.
