Saturday, September 09, 2006

Judicial help is on the way.. or is it?

The mayor made a statement yesterday saying that he has directed the city's law department to get a judge to rule on when there will be a mayoral election. The problem is.. can the city get a judge to make that type of decision without a complaint being filed or a cause of action pending in court? Does there not need to be a case for a judge to make a decision or can the city just go petition the court for some such ruling. Judges typically do not go spouting off on their own. There needs to be a plaintiff of some sort doesn't there? It seems to me that the Mayor has basically told the City Law Department to sue itself in opposition to its own legal opinion. Not quite sure how that would work. I have to admit that I am a little curious that the media has not asked a few basic questions. If you just read, heard or watched the news coverage on this, you must now believe that this is all a done deal that a judge is going to resolve the issue. I wonder.

here are some basic questions someone ought to ask: Which judge? for that matter which court? Common pleas? Commonwealth? Who will pose the question for this judge to address? Who will make arguments for or against any particular date? when will these proceedings take place?

5 Comments:

Anonymous Anonymous said...

So it sounds like what you're saying is that some entity has to set a date for the election before some other entity can lodge a challenge in court. What led to the court challenge in the Cali v. Philly case? Can you post an actual link to that case?

Monday, September 11, 2006 10:26:00 AM  
Blogger C. Briem said...

again, I am not a lawyer, but I have to believe there has to be some election set that someone opposes... or I think someone could sue to force there to be an election if one is not scheduled. It's a lot like reassessments. At several points the county wanted Judge Wettick to go and make some decisions on how the mass reassessment should proceed and he pretty much refused. Judges typically don't like, and are generally proscribed from making specific decisions that belong to other branches of government. Otherwise they would then have to administer that decision as well. Consent decrees with Judicial involvement happen (Judge Papadakos and assessments in the 80's for example) but that is the exception that proves the rule.

no link for the case. I have toyed with the idea of asking NEXIS for permission to post that case summary somewhere. but it seems that an actual special election was set and an individual taxpayer sued with a claim that as a taxpayer no money should be spent on an election that they felt was not legal. I am not sure what claim someone would have if they wanted to force an election vice trying to stop one. I am sure a good lawyer could figure that out.

Monday, September 11, 2006 10:47:00 AM  
Blogger Mark Rauterkus said...

My hunch. You'd go to Grant Street and visit the Pothonatary's desk, pay $60 or so... and enter the paperwork. I think you'd make a charge against the Election Department and perhaps the County Board of Elections (3 persons: Dan O, D and R on council).

They'd put you on the docket.

Then you'd need to give service to the Election Dept and Board of Elections.

This is the same process just as an election challenge unfolds.

Furthermore, I be that the City's Law Department, Michael Lamb, and a dozen others on the bar, or even a clerk or two, would be glad to proof read your papers for you before they go over the counter.

Frankly, if I was Luke, I'd want to push for a Nov 7, 2006 special election. That would get shot down, I expect, as some might come to the court or file a friend of the court brief saying that the city's charter INTENDED to have a FULL ELECTION with PRIMARY and GENERAL election -- not a 'special election.'

But getting a decision on this is a pressing matter in terms of budgets for the next few years. I'd rather have a mayor working on budgets and not engaged in election activities. To delay the election until 2007 -- puts us behind even more.

Thursday, September 14, 2006 7:14:00 PM  
Blogger C. Briem said...

probably the only things that is pretty certain at this point is that an actual special election, as in without a primary, is not allowed under Pennsylvania law.. and one in an even year is doubly disallowed. The state election code has provisions for special elections for a myriad of offices down to municipal legislators but seems to just omits addressing how to deal with mayors. There is some clear case precedent in PA that says a judge does not even have the power to order a special election without there being some enabling (read explicit) legislation.

there is some reporting that will be coming out of some state legal publications soon on the legal morass the city is straying into.. like all such problems, it is mostly of its own making. Somebody wrote the code.

Thursday, September 14, 2006 7:41:00 PM  
Blogger Mark Rauterkus said...

There are times to fix the problem and not the blame. But then there are other times when we should fix the blame, too.

Who is the somebody that wrote the code?

That group and chair should be on the hook for an end product that is junk and does NOT stand up to common-sense understanding. Right?

People who re-write codes should put their names to it -- and lend more accountability.

Friday, September 15, 2006 9:13:00 AM  

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