On Election Eve, Pennsylvania Courts Enjoin Victims’ Rights Amendment to Constitution Pending Further Judicial Review

In a split decision that came down after 4 p.m. on the eve of the November 5 election, the Pennsylvania Supreme Court affirmed an injunction issued last week by the Commonwealth Court in an important lawsuit regarding victims’ rights and the rights of criminal defendants.

The action concerned a proposed amendment to the Pennsylvania constitution commonly referred to as “Marsy’s Law,” which was scheduled to be on the ballot in the November 5, 2019 general election. Marsy’s Law, if enacted, would confer broad, and numerous, constitutional rights on victims of crime that would be equally weighty before the law as the constitutional rights of persons accused of crime.

Petitioners League of Women Voters of Pennsylvania and Lorraine Haw, represented by the American Civil Liberties Union (ACLU) and Dechert LLP, filed an action in the Commonwealth Court maintaining that the proposed amendment was unconstitutional in that it violated the “single subject” requirement of the Pennsylvania constitution, and that the proposed ballot question was incomplete and misleading, and therefore harmed the ability of voters to knowingly and intelligently cast a vote. Petitioners sought an injunction that would allow the proposed amendment to remain on the ballot, but would prevent the votes from being tabulated, and the results certified, until the courts could finally resolve the constitutional issues involved.

Philadelphia criminal defense attorney Ronald L. Greenblatt, represented by Steve Harvey Law LLC, sought to intervene in the action for a specific purpose—to testify as to how enactment of Marsy’s Law would cause immediate and irreparable harm by impairing the constitutional rights of criminal defendants, and would create great uncertainty and confusion in the criminal justice system. Particularly troublesome was the potential for the amendment to impair the ability of those accused of crime to engage in a complete investigation; to restrict the ability of defendants to fully and effectively cross-examine accusers; and to impair the right to a speedy trial. Mr. Greenblatt successfully intervened in the action, and provided crucial testimony at the October 23, 2019 injunction hearing before Commonwealth Court Judge Ellen Ceisler. In her opinion granting the requested injunction, Judge Ceisler extensively quoted Mr. Greenblatt’s testimony, and specifically relied on it in finding that the Petitioners and Mr. Greenblatt had established the “irreparable harm” necessary to obtain an injunction.

The day after Judge Ceisler granted the injunction, Respondent Kathy Boockvar, the Acting Secretary of the Commonwealth, appealed the decision to the Pennsylvania Supreme Court, which ordered expedited briefing, for the clear purpose of being able to decide the case prior to the election. On November 4, 2019, after 4:00 p.m. on the day before the election, the court, in a split 4-3 decision, upheld the injunction. Thus, as the Petitioners and Mr. Greenblatt requested, the proposed amendment will remain on the ballot for the voters to consider, but the results will not be tabulated, or the results certified, until the constitutional issues are finally resolved. This is an excellent result, as it will give the courts the ability to thoughtfully consider the weighty constitutional issues involved, without the immediate harm that would result if the amendment became effective before those issues are finally decided.

Federal Judge Says School District Flunks Its Obligation to Educate Students Who Don’t Speak English by Making Them Take Class Taught Only In English

A decision issued by federal Judge Edward G. Smith in Pennsylvania last Friday confirms our faith in the ability of the legal system to get it right. The issue was whether 5 students living in Lancaster County, Pennsylvania, who came from Somalia, Sudan, Democratic Republic of Congo, and Burma had a right to attend a school run by the Lancaster County School District that includes a program to teach English to non-English speakers. The School District forced the children to attend a separate, academically inferior high school run by a for-profit corporation under contract with the School District. None of the students speaks English. All instruction at the separate school is in English. Judge Smith said that “[o]n its face, this practice appears to be counterintuitive; expert testimony confirmed that the practice was unsound.”

Judge Smith held that the students had made out a strong case that the School District had violated state and federal law and issued a preliminary injunction in their favor. Speaking of the students, he said: “They all escaped violence and tumult in their home and other lands. Now in America, all earnestly seek to learn English, advance their education, and contribute to society.”

We never applaud judges for getting it right, because that’s their job, but we are grateful. We are also grateful to the Education Law Center, the ACLU of PA and the law firm of Pepper Hamilton for bringing the case on a pro bono basis. Anyone who would like to read Judge Smith’s decision can find a copy here (https://www.aclupa.org/download_file/view_inline/2806/1030/).