Amicus Curiae Brief — Michael C. Turzai, Speaker of the Pennsylvania House of Representatives, et al., Applicants v. League of Women Voters of Pennsylvania, et al.
Supreme Court briefMar 5, 2018
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No. 17A909
In the Supreme Court of the United States
___________________________________________
MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF
REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS
PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,
Applicants,
v.
LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,
Respondents.
___________________________________________
On Application for a Stay of the Judgment of
the Supreme Court of Pennsylvania
___________________________________________
To the Honorable Samuel A. Alito, Jr.,
Associate Justice of the United States and
Circuit Justice for the Third Circuit
___________________________________________
MOTION FOR LEAVE TO FILE AMICUS BRIEF, MOTION FOR
LEAVE TO FILE BRIEF ON 8 1/2 BY 11 INCH PAPER, AMICUS
CURIAE BRIEF OF EAGLE FORUM EDUCATION & LEGAL
DEFENSE FUND IN SUPPORT OF APPLICANTS
___________________________________________
LAWRENCE J. JOSEPH
1250 Connecticut Ave. NW, Suite 200
Washington, DC 20036
(202) 355-9452
lj@larryjoseph.com
Counsel for Movant and Amicus Curiae
TABLE OF CONTENTS
Table of Contents ............................................................................................................ i
Table of Authorities ....................................................................................................... ii
Motion for Leave to File Amicus Brief .......................................................................... 1
Identity and Interests of Movant .................................................................................. 2
Reasons to Grant Leave to File ..................................................................................... 2
Motion for Leave to File on 8 1/2 by 11 Inch Format ................................................... 4
Amicus Curiae Brief in Support of Applicants ............................................................. 6
Introduction ................................................................................................................... 7
Standard of Review ...................................................................................................... 10
Summary of Argument ................................................................................................ 11
Argument ..................................................................................................................... 12
I.
The grant of a writ of certiorari is likely. ......................................................... 12
II.
The Legislators are likely to prevail. ............................................................... 12
A.
Both this Court and the Circuit Justice have the
jurisdiction to act, notwithstanding the Pennsylvania
Supreme Court’s effort to mask this as a purely state-law
question................................................................................................... 13
1.
The Elections Clause is implicated. ............................................ 13
2.
The Due Process Clause is implicated. ....................................... 14
3.
The All Writs Act gives this Court jurisdiction now
to preserve its future jurisdiction over the
Legislators’ petition for a writ of certiorari. ............................... 14
4.
28 U.S.C. §2106 gives this Court further authority
to remedy the situation that the Pennsylvania
Supreme Court has created. ........................................................ 17
B.
The Legislators are likely to prevail on the merits. .............................. 18
1.
The Pennsylvania Supreme Court violated the
Elections Clause. ......................................................................... 18
2.
The Pennsylvania Supreme Court violated the Due
Process Clause. ............................................................................ 19
III.
The other stay criteria tip in the legislators’ favor. ......................................... 22
A.
The Legislators’ harm is irreparable. .................................................... 22
B.
The equities balance in favor of the Legislators. .................................. 23
C.
The public interest favors a stay. .......................................................... 24
Conclusion .................................................................................................................... 24
i
TABLE OF AUTHORITIES
CASES
Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33 (1980) .......................................................................................... 16, 24
Arizona State Leg. v. Ariz. Indep. Redistricting Comm’n,
135 S.Ct. 2652 (2015) ........................................................................................... 12
Bell v. Hood,
327 U.S. 678 (1946) ......................................................................................... 13-14
Burford v. Sun Oil Co.,
319 U.S. 315 (1943) .............................................................................................. 24
Cheney v. United States Dist. Court,
542 U.S. 367 (2004) .............................................................................................. 16
City of Boerne v. Flores,
521 U.S. 507 (1997) .............................................................................................. 21
Commonwealth v. Gilmour Mfg. Co.,
573 Pa. 143, 822 A.2d 676 (Pa. 2003) .................................................................... 8
Corley v. U.S.,
556 U.S. 303 (2009) .............................................................................................. 20
Diamond v. Charles,
476 U.S. 54 (1986) ................................................................................................ 23
Dreyer v. People of State of Illinois,
187 U.S. 71 (1902) ................................................................................................ 14
Edwards v. Hope Med. Group for Women,
512 U.S. 1301 (1994) ............................................................................................ 10
Erfer v. Commonwealth,
568 Pa. 128, 794 A.2d 325 (Pa. 2002) .................................................................... 7
Frank v. Walker,
135 S.Ct. 7 (2014) ................................................................................................... 9
FTC v. Dean Foods Co.,
384 U.S. 597 (1966) ........................................................................................ 15, 17
Gill v. Whitford,
No. 16-1161 (U.S.) ........................................................................................... 11-12
Graddick v. Newman,
453 U.S. 928 (1981) .............................................................................................. 22
Hollingsworth v. Perry,
558 U.S. 183 (2010) ........................................................................................ 10, 18
ii
Holt v. 2011 Legislative Reapportionment Comm’n,
620 Pa. 373, 67 A.3d 1211 (Pa. 2013) .................................................................... 7
Husted v. Ohio State Conf. of the NAACP,
135 S.Ct. 42 (2014) ................................................................................................. 9
Karcher v. May,
484 U.S. 72 (1987) ................................................................................................ 23
Kimble v. Swackhamer,
439 U.S. 1385 (1978) ............................................................................................ 10
Knowlton v. Moore,
178 U.S. 41 (1900) ................................................................................................ 19
La Buy v. Howes Leather Co.,
352 U.S. 249 (1957) .............................................................................................. 16
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .............................................................................................. 20
Mathews v. Eldridge,
424 U.S. 319 (1976) ........................................................................................ 14, 20
Mathews v. Weber,
423 U.S. 261 (1976) .............................................................................................. 16
Mistretta v. U.S.,
488 U.S. 361 (1989) .............................................................................................. 20
Nelson v. Adams USA, Inc.,
529 U.S. 460 (2000) ......................................................................................... 20-21
Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826 (1989) .............................................................................................. 17
North Carolina v. League of Women Voters,
135 S.Ct. 6 (2014) ................................................................................................... 9
Pa. Prison Soc’y v. Commonwealth,
727 A.2d 632 (Pa. Commw. Ct. 1999) .................................................................. 21
Pac. States Tel. & Tel. Co. v. Oregon,
223 U.S. 118 (1912) .............................................................................................. 22
Purcell v. Gonzalez,
549 U.S. 1 (2006) .................................................................................................... 9
Rendell v. Pa. State Ethics Comm’n,
603 Pa. 292, 983 A.2d 708 (Pa. 2009) .................................................................... 7
Sampson v. Murray,
415 U.S. 61 (1974) ........................................................................................... 15-16
iii
Schlesinger v. Councilman,
420 U.S. 738 (1975) .............................................................................................. 17
Securities Industry Ass’n v. Bd. of Governors of Fed’l Reserve Sys.,
468 U.S. 137 (1984) .............................................................................................. 19
Sochor v. Florida,
504 U.S. 527 (1992) .............................................................................................. 17
Steel Co. v. Citizens for a Better Env’t.,
523 U.S. 83 (1998) ................................................................................................ 13
U.S. v. Munoz-Flores,
495 U.S. 385 (1990) .............................................................................................. 20
U.S. v. Williams,
504 U.S. 36 (1992) ................................................................................................ 13
Ullmann v. U.S.,
350 U.S. 422 (1956) .............................................................................................. 21
Washington v. Glucksberg,
521 U.S. 702 (1997) .............................................................................................. 22
Whalen v. U.S.,
445 U.S. 684 (1980) .............................................................................................. 14
Will v. U.S.,
389 U.S. 90 (1967) ................................................................................................ 16
STATUTES
U.S. CONST. art. I, §4, cl. 1............................................................ 9, 11-14, 18-20, 22-24
U.S. CONST. art. IV, §4, cl. 1 .................................................................................. 19, 22
U.S. CONST. art. V ........................................................................................................ 21
U.S. CONST. amend. XIV, §1, cl. 3 ........................................................ 11, 14, 18-19, 22
All Writs Act,
28 U.S.C. §1651(a)............................................................................. 10-11, 14-17
28 U.S.C. §1653 ............................................................................................................ 17
28 U.S.C. §2106 ................................................................................................. 11, 17-18
PA. CONST. art. I, §5, cl. 1 .............................................................................................. 7
PA. CONST. art. III, §4 .............................................................................................. 9, 20
PA. CONST. art. VII, §9 ................................................................................................... 7
PA. CONST. art. XI, §1 .................................................................................................. 21
iv
OTHER AUTHORITIES
Terence Ball, “A Republic - If You Can Keep It”, in CONCEPTUAL CHANGE
AND THE CONSTITUTION 35, 137 (Terence Ball & J.G.A. Pocock eds.,
1988) .................................................................................................................. 19
Sandra Day O’Connor, Symposium: The 2009 Earl F. Nelson Lecture:
The Essentials and Expendables of the Missouri Plan, 74 MO. L.
REV. 479 (2009) .............................................................................................. 9-10
11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,
FED. PRAC. & PROC. Civ.2d §2948.4 (2d ed. 1995 & Supp.) ............................. 24
v
No. 17A909
In the Supreme Court of the United States
___________________________________________
MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF
REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS
PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,
Applicants,
v.
LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,
Respondents.
___________________________________________
On Application for a Stay of the Judgment of
the Supreme Court of Pennsylvania
___________________________________________
MOTION FOR LEAVE TO FILE AMICUS BRIEF
Movant Eagle Forum Education & Legal Defense Fund respectfully requests
leave to file the accompanying brief as amicus curiae in support of the application to
stay the decision and remedy of the Pennsylvania Supreme Court in the abovecaptioned matter.* Of the various parties involved, the applicants consented to the
filing of the brief, and the defendants, the original petitioners – i.e., the League of
Women Voters of Pennsylvania and the allied 18 voters – and the state intervenors
Brian McCann et al. do not oppose the filing of the brief.
*
By analogy to FED. R. APP. P. 29(c)(5) and this Court’s Rule 37.6, counsel for
movant and amicus curiae authored these motions and brief in whole, and no counsel
for a party authored the motions and brief in whole or in part, nor did any person or
entity, other than the movant/amicus and its counsel make a monetary contribution
to preparation or submission of the motions and brief.
1
IDENTITY AND INTERESTS OF MOVANT
Eagle Forum Education & Legal Defense Fund (“EFELDF”) is a nonprofit
corporation founded in 1981 and headquartered in Saint Louis, Missouri. For more
than thirty-five years, EFELDF has consistently defended the Constitution’s
federalist structure and the separation of powers. In the context of the integrity of
the elections on which the Nation has based its political community, EFELDF has
supported efforts both to ensure equality of voters consistent with the written
Constitution and validly enacted laws. For the foregoing reasons, movant EFELDF
has direct and vital interests in the issues before this Court and respectfully requests
leave to file the accompanying amicus brief in support of the stay applicants.
REASONS TO GRANT LEAVE TO FILE
By analogy to Rule 37.2(b) of the Rules of the Supreme Court, movant
respectfully seeks leave to file the accompanying amici curiae brief in support of the
stay applicants. By filing this motion contemporaneously with the respondents’
deadline to file an opposition, this filing should not disturb the accelerated briefing
schedule ordered in this matter.
Movant EFELDF respectfully submits that the proffered amicus brief will
bring two categories of relevant matters to the Court’s attention:
First, the EFELDF brief discusses the All Writs Act, 28 U.S.C. §1651(a), as
well as 28 U.S.C. §2106, which aid this Court’s jurisdiction to apply a stay and
remedial power not only to issue a stay but also to remedy the eventual merits.
See EFELDF Br. at 11, 14-18.
2
Second, the EFELDF brief addresses the Due Process Clause as a federal basis
for this Court to hear the merits of this action, in addition to the federal issues
presented by the Elections Clause. See EFELDF Br. at 14, 19-22.
These issues are all relevant to deciding the stay application, and movant EFELDF
respectfully submits that filing the brief will aid the Court.
Dated: March 5, 2018
Respectfully submitted,
/s/ Lawrence J. Joseph
_____________________________________
Lawrence J. Joseph
1250 Connecticut Av NW Suite 200
Washington, DC 20036
Telephone: (202) 355-9452
Facsimile: (202) 318-2254
lj@larryjoseph.com
Counsel for Movant Eagle Forum
Education & Legal Defense Fund
3
No. 17A909
In the Supreme Court of the United States
___________________________________________
MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF
REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS
PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,
Applicants,
v.
LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,
Respondents.
___________________________________________
On Application for a Stay of the Judgment of
the Supreme Court of Pennsylvania
___________________________________________
MOTION FOR LEAVE TO FILE ON 8 1/2 BY 11 INCH FORMAT
Eagle Forum Education & Legal Defense Fund (“EFELDF”) respectfully
submits that the Court’s rules require those moving or applying to a single Justice to
file in 8½-by 11-inch format pursuant to Rule 22.2, as EFELDF has done here. If Rule
21.2(b)’s requirements for motions to the Court for leave to file an amicus brief
applied here, however, EFELDF would need to file 40 copies in booklet format, even
though the Circuit Justice may not refer this matter to the full Court. Due to the
expedited briefing schedule, the expense and especially the delay of booklet-format
printing, and the rules’ ambiguity on the appropriate procedure, EFELDF has elected
to file pursuant to Rule 22.2. To address the possibility that the Circuit Justice may
refer this matter to the full Court, however, movant files an original plus ten copies,
rather than Rule 22.2’s required original plus two copies.
Should the Clerk’s Office, the Circuit Justice, or the Court so require, EFELDF
4
commits to re-filing expeditiously in booklet format. See S.Ct. Rule 21.2(c) (Court may
direct the re-filing of documents in booklet-format). Movant EFELDF respectfully
requests leave to file the accompanying brief as amicus curiae to the Pennsylvania
legislative leaders’ stay application – at least initially – in 8½-by 11-inch format
pursuant to Rules 22 and 33.2, rather than booklet format pursuant to Rule 21.2(b)
and 33.1.
For the foregoing reasons, the motion for leave to file in 8½-by 11-inch format
should be granted.
Dated: March 5, 2018
Respectfully submitted,
/s/ Lawrence J. Joseph
_____________________________________
Lawrence J. Joseph
1250 Connecticut Av NW Suite 200
Washington, DC 20036
Telephone: (202) 355-9452
Facsimile: (202) 318-2254
lj@larryjoseph.com
Counsel for Movant Eagle Forum
Education & Legal Defense Fund
5
No. 17A909
In the Supreme Court of the United States
___________________________________________
MICHAEL C. TURZAI, IN HIS CAPACITY AS SPEAKER OF THE PENNSYLVANIA HOUSE OF
REPRESENTATIVES, AND JOSEPH B. SCARNATI, III, IN HIS CAPACITY AS
PENNSYLVANIA SENATE PRESIDENT PRO TEMPORE,
Applicants,
v.
LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, ET AL.,
Respondents.
___________________________________________
On Application for a Stay of the Judgment of
the Supreme Court of Pennsylvania
___________________________________________
AMICUS CURIAE BRIEF IN SUPPORT OF APPLICANTS
Amicus Curiae Eagle Forum Education & Legal Defense Fund (“EFELDF”)
respectfully submits that the Circuit Justice (or the full Court if referred to the full
Court) should stay the decision and remedial orders of the Pennsylvania Supreme
Court in this action until the applicants here – the leaders of Pennsylvania’s House
of Representative and its Senate (collectively, hereinafter the “Legislators”) – timely
file and this Court duly resolves a petition for a writ of certiorari. Amicus EFELDF’s
interests are set out in the accompanying motion for leave to file.
6
INTRODUCTION
Although this litigation began as a traditional case or controversy,1 it became
a legislative vehicle for a partisan majority of the Pennsylvania Supreme Court to
enact a new law out of generally worded language – “Elections shall be free and
equal,” PA. CONST. art. I, §5, cl. 1 – in the Pennsylvania Constitution. The new law is
that “congressional districts composed of compact and contiguous territory; as nearly
equal in population as practicable; and which do not divide any county, city,
incorporated town, borough, township, or ward, except where necessary to ensure
equality of population.” Order, at 3 (Jan. 22, 2018) (App. A., at 3). Significantly, the
constitutional basis for the new law – PA. CONST. art. I, §5, cl. 1 – is not new, and that
same language was in the same constitution when that same court repeatedly held
that it does not mean what – hey, presto! – it now means. See, e.g., Erfer v.
Commonwealth, 568 Pa. 128, 142 n.4, 794 A.2d 325, 334 n.4 (Pa. 2002); Holt v. 2011
Legislative Reapportionment Comm’n, 620 Pa. 373, 412, 67 A.3d 1211, 1235 (Pa.
2013). But it gets worse.
Investing the new criteria into the free-and-equal clause renders another
provision of the same constitution mere surplusage, see PA. CONST. art. VII, §9
(expressly setting same criteria for state legislative districts), which normally would
suggest that the new interpretation is wrong: “[A] bedrock principle of statutory
1
Pennsylvania has its own state-law equivalent of the federal Article III caseor-controversy requirement. See Rendell v. Pa. State Ethics Comm’n, 603 Pa. 292,
307-08, 983 A.2d 708, 717-18 (Pa. 2009).
7
construction requires that a statute be construed, if possible, to give effect to all its
provisions, so that no provision is mere surplusage.” Commonwealth v. Gilmour Mfg.
Co., 573 Pa. 143, 149, 822 A.2d 676, 679 (Pa. 2003) (interior quotations omitted,
emphasis added). But it get worse.
Although the order dated January 22, 2018, announced some new standards
for congressional maps and “as a matter of law that the Congressional Redistricting
Act of 2011 clearly, plainly and palpably violates the Constitution of the
Commonwealth of Pennsylvania,” Order, at 2 (Jan. 22, 2018) (App. A., at 2), the order
did not identify the basis for its conclusions: “Opinion to follow.” Id. at 3 (App. A., at
3). Although the U.S. Constitution assigns map-drawing to state legislatures, U.S.
CONST. art. I, §4, the order was at best indifferent as to whether Pennsylvania’s
legislature cured the ill-described constitutional failing(s): “should the Pennsylvania
General Assembly choose to submit a congressional districting plan that satisfies the
requirements of the Pennsylvania Constitution, it shall submit such plan for
consideration by the Governor on or before February 9, 2018.” Order, at 2 (Jan. 22,
2018) (App. A., at 2) (emphasis in original). In other words, the state-court majority
gave Pennsylvania’s legislature just 18 days to complete a significant legislative task
that normally takes months of analysis and negotiation. But it get worse.
On February 7, 2018 – just two days before its already tight deadline – the
court issued an extensive opinion adding new criteria (e.g., efficiency gaps,
proportional representation) and finally identifying the mystery source of the
“palpable violations.” Under Pennsylvania’s constitution, “[e]very bill shall be
8
considered on three different days in each House,” PA. CONST. art. III, §4 (emphasis
added), which means that six days is the barest minimum number of days needed to
pass a bill, assuming improbably that the originating house could write and publish
a bill on the first day. In sum, the state-court majority made it literally impossible for
Pennsylvania’s legislature to meet its obligation under the Elections Clause of the
U.S. Constitution.
The solution here is easy: stay the Pennsylvania Supreme Court’s decision and
orders, pending the Legislators’ timely petition for a writ of certiorari and this Court’s
resolution of that appeal. When such late-breaking election-law rulings surface near
an election – Pennsylvania’s congressional primaries are in May – this Court has not
hesitated to issue stays,2 presumably to avoid electoral chaos and voter confusion.
Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (“Court orders affecting elections … can
result in voter confusion and consequent incentive to remain away from the polls”).
Amicus EFELDF respectfully submits that the Court must again do so here.
The stakes could not be higher for our system of government: If the electorate
believes that “judges are just politicians in robes – then there is no reason to prefer
their interpretation of the law or Constitution over the opinions of the real politicians
representing the electorate.” Sandra Day O’Connor, Symposium: The 2009 Earl F.
Nelson Lecture: The Essentials and Expendables of the Missouri Plan, 74 MO. L. REV.
2
See, e.g., Frank v. Walker, 135 S.Ct. 7 (2014); Husted v. Ohio State Conf. of the
NAACP, 135 S.Ct. 42 (2014); North Carolina v. League of Women Voters, 135 S.Ct. 6
(2014).
9
479, 489 (2009). If it does not plug this Pennsylvania leak immediately, this Court
will face a deluge of similar actions from all points of the geographic and political
compass, coupled with a massive wave of public cynicism toward government.
STANDARD OF REVIEW
A stay pending the timely filing and ultimate resolution of a petition for a writ
of certiorari is appropriate when there is a “(1) a reasonable probability that four
Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair
prospect that a majority of the Court will vote to reverse the judgment below; and (3)
a likelihood that irreparable harm will result from the denial of a stay.”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). For “close cases,” the Court “will
balance the equities and weigh the relative harms to the applicant and to the
respondent.” Id.
Where the All Writs Act, 28 U.S.C. §1651(a) is implicated, the Court also
considers the necessity or appropriateness of interim relief now to aid the Court’s
future jurisdiction. See Edwards v. Hope Med. Group for Women, 512 U.S. 1301 (1994)
(requiring “reasonable probability that certiorari will be granted,” a “significant
possibility” of reversal, and a “likelihood of irreparable harm”) (Scalia, J., in
chambers). Although “a single Circuit Justice has no authority to summarily reverse
a judgment of the highest court of a State,” he or she can “grant interim relief in order
to preserve the jurisdiction of the full Court to consider an applicant’s claim on the
merits.” Kimble v. Swackhamer, 439 U.S. 1385 (1978) (Rehnquist, J., in chambers)
(interior quotations omitted).
10
SUMMARY OF ARGUMENT
With respect to the likelihood of this Court’s granting a writ of certiorari, the
Court’s resolution of the partisan-gerrymandering issue in Gill v. Whitford, No. 161161, may require it; in any event, this Court has often reviewed Elections Clause
cases that go to which state actors have authority to act as the legislature (Section I).
Notwithstanding the Pennsylvania Supreme Court’s purportedly ruling on a statelaw ground, this Court has jurisdiction because both the procedure and the substance
of the state court’s ruling violate not only the Elections Clause (Section II.A.1) but
also the Due Process Clause (Section II.A.2), which of course fall within this Court’s
jurisdiction. Moreover, the All Writs Act, 28 U.S.C. §1651(a) provides a supplemental
basis for jurisdiction and relief (Section II.A.3), as does 28 U.S.C. §2106 (Section
II.A.4).
As to the merits, the Legislators are likely to prevail because the Pennsylvania
Supreme Court usurped the legislature’s authority under the Elections Clause
(Section II.B.1) and violated procedural and substantive due process in doing so
(Section II.B.2). The other stay factors also favor the Legislators because the
irreparable harm – namely, chaos and voter confusion in the 2018 elections and the
resulting changes in congressional offices and staff – will not be fixable if the elections
proceed under the state court’s map and this Court later reverses (Section III.A. The
other stay factors merge with the merits, which – as indicated – tip to the Legislators
(Sections III.B-III.C).
11
ARGUMENT
I.
THE GRANT OF A WRIT OF CERTIORARI IS LIKELY.
There is a reasonable possibility that this Court will grant the Legislators’
forthcoming petition for a writ of certiorari. Perhaps most obviously, depending on
how the Court resolves the issue of partisan gerrymandering in Gill v. Whitford, No.
16-1161 – which seemed a “toss-up” at oral argument – it is easy to envision a grant,
if only to be followed by an immediate vacatur and remand for further consideration
in light of Gill. But even if partisan gerrymanders remain non-justiciable, this Court
is likely to grant the writ to consider the issue of whether the Pennsylvania Supreme
Court’s actions here run afoul of the Elections Clause’s delegation to the “Legislature”
of a state, U.S. CONST. art. I, §4, as this Court recently did with respect to independent
commissions. Arizona State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S.Ct. 2652
(2015). Accordingly, the Legislators meet the first criterion for a stay.
II.
THE LEGISLATORS ARE LIKELY TO PREVAIL.
This section demonstrates that the Legislators are likely to prevail on the
merits. To make that showing, amicus EFELDF first shows that the Legislators’
petition will present a federal question, notwithstanding the state-court majority’s
transparent effort to insulate their ruling from review by claiming to have relied on
the “sole basis” of the Pennsylvania Constitution. Order, at 2 (Jan. 22, 2018) (App.
A., at 2). After establishing this Court’s jurisdiction to act, amicus EFELDF then
shows why the Legislators are likely to prevail on the federal merits presented here.
12
A.
Both this Court and the Circuit Justice have the jurisdiction to
act, notwithstanding the Pennsylvania Supreme Court’s effort
to mask this as a purely state-law question.
Before reaching the question of the Legislators’ likelihood of prevailing on the
merits, this Court – or the Circuit Justice – first must establish federal jurisdiction.
Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 95 (1998). But this Court considers
issues either pressed or passed upon in the lower court, U.S. v. Williams, 504 U.S.
36, 41 (1992), and a state-court majority cannot avoid a federal question by ignoring
it. While it is true that this Court would lack authority to review issues solely based
on state-law issues, that does not prevent review when those state-law issues or the
processes through which they were reached violate federal law.
1.
The Elections Clause is implicated.
The Legislators’ application and the Thornburg-McCollum amicus brief make
clear that this case presents an issue under the Elections Clause, even though the
state-court majority attempts to evade that issue by ignoring it and offering a purely
state-law basis for its holding. At a minimum, the issue was pressed below, and that
is all that this Court requires. Williams, 504 U.S. at 41. Although amicus EFELDF
will argue that the Legislators are likely to prevail, see Section II.B, infra, parties do
not need winning hands for the Court to have jurisdiction. Instead, jurisdiction exists
when “the right of the petitioners to recover under their complaint will be sustained
if the Constitution and laws of the United States are given one construction,” even if
the right “will be defeated if they are given another.” Bell v. Hood, 327 U.S. 678, 685
(1946). At least as to jurisdiction, the Legislators need only survive the low threshold
“where the alleged claim under the Constitution or federal statutes clearly appears
13
to be immaterial and made solely for the purpose of obtaining jurisdiction or where
such a claim is wholly insubstantial and frivolous.” Id. at 682. The Legislators
plausibly allege that the Pennsylvania Supreme Court violated the Elections Clause,
which is enough for jurisdictional purposes.
2.
The Due Process Clause is implicated.
In addition to the Elections Clause, amicus EFELDF respectfully submits that
the Due Process Clause also provides a federal basis for this Court’s reviewing the
state-court decision, notwithstanding the state-law basis for the ultimate holding.
The Due Process Clause prohibits inter alia the denial of liberty without due process
of law. While the “doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States,” Whalen v. U.S., 445 U.S. 684, 689 (1980);
accord Dreyer v. People of State of Illinois, 187 U.S. 71, 84 (1902), the states still must
run their judicial proceedings in compliance with the Due Process Clause: “nor shall
any state deprive any person of life, liberty, or property, without due process of law.”
U.S. CONST. amend. XIV, §1, cl. 3. “The fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful manner,”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976), and that was sorely lacking here.
3.
The All Writs Act gives this Court jurisdiction now to
preserve its future jurisdiction over the Legislators’
petition for a writ of certiorari.
The All Writs Act provides an alternate, supplemental form of jurisdiction to
stay the Pennsylvania Supreme Court’s action here, if only to preserve the full range
of the controversy now for this Court’s consideration upon the Legislators’ future
appeal to this Court:
14
The All Writs Act empowers the federal courts to issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law. The exercise of this power is in the nature of appellate
jurisdiction where directed to an inferior court, and extends
to the potential jurisdiction of the appellate court where an
appeal is not then pending but may be later perfected.
FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (interior quotations and citations
omitted, emphasis added) (citing Ex parte Crane, 5 Pet. 190, 193 (1832) (Marshall,
C.J.); Ex parte Bradstreet, 7 Pet. 634 (1833) (Marshall, C.J.)). Although this Court’s
jurisdiction to provide interim relief does not require resort to the All Writs Act, that
Act nonetheless ensures the Court’s jurisdiction here. The All Writs Act provides “a
limited judicial power to preserve the court’s jurisdiction or maintain the status quo
by injunction pending review of an agency’s action through the prescribed statutory
channels,” and that “power has been deemed merely incidental to the courts’
jurisdiction to review” the ultimate merits of the future appeal. Id. at 604 (alterations
omitted). As explained in this section, that power is appropriate in this case.
Without a stay, the congressional offices that exist under the bipartisan 2011
map will certainly be dispersed and perhaps lost outright if the Pennsylvania
Supreme Court succeeds in pushing through its rival map for the May 2018
primaries. That is the type of harm that justifies action under the All Writs Act. For
example, in Sampson v. Murray, 415 U.S. 61, 76-77 (1974), the Court was concerned
“that refusal to grant the injunction would result in the practical disappearance of
one of the entities whose merger the [applicant] sought to challenge” and that “[t]he
disappearance, in turn, would mean that the [applicant] and the court entrusted …
to review the … decision, would be incapable of … fashioning effective relief.” Under
15
the circumstances, “invocation of the All Writs Act, as a preservative of jurisdiction,
was considered appropriate,” id., which applies equally here as in Sampson.
In another instance where the Court’s invoking the All Writs Act shares
themes at issue here, La Buy v. Howes Leather Co., 352 U.S. 249, 259 (1957), refused
to permit reference of antitrust cases to a master. “In La Buy, the District Judge on
his own motion referred to a special master two complex, protracted antitrust cases
on the eve of trial. … The master, a member of the bar, was to hear and decide the
entire case, subject to review by the District Judge under the ‘clearly erroneous’ test.”
Mathews v. Weber, 423 U.S. 261, 274 (1976). Assuming arguendo that the state court’s
expert here was not – in fact – doing the court majority’s political bidding – this would
case would repeat aspects of La Buy that justified resort to the All Writs Act.
Although resort to the All Writs Act is an extraordinary remedy – as indeed is
any stay – the writ “has traditionally been used in the federal courts only to confine
an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so.” Will v. U.S., 389 U.S. 90, 95 (1967)
(interior quotations omitted). While “only exceptional circumstances … will justify
the invocation of this extraordinary remedy,” those circumstances certainly include a
“judicial usurpation of power” as happened here. Id. (interior quotations omitted);
accord Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); Cheney v. United
States Dist. Court, 542 U.S. 367, 380 (2004). For partisan ends, a partisan majority
of elected judges on a state supreme court have attempted to seize the Legislature’s
constitutional power, which easily meets the “judicial usurpation of power” test that
16
this Court has repeatedly set.
While the All Writs Act perhaps may seem too obvious to mention, amicus
EFELDF respectfully submits that it bears explicit emphasis3 because it can provide
the difference in a close case: “where a case is within the appellate jurisdiction of the
higher court a writ may issue in aid of the appellate jurisdiction which might
otherwise be defeated.” Dean Foods, 384 U.S. at 604. Accordingly, amicus EFELDF
respectfully submits that the Circuit Justice or the full Court should consider the
appropriateness of relief to preserve the full controversy for review.
4.
28 U.S.C. §2106 gives this Court further authority to
remedy the situation that the Pennsylvania Supreme
Court has created.
In addition to the All Writs Act, this Court also can rely on §2106 for additional
authority to resolve this matter:
The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or reverse
any judgment, decree, or order of a court lawfully brought
before it for review, and may remand the cause and direct
the entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just
under the circumstances.
3
It is irrelevant that the Legislators did not cite the All Writs Act in their stay
application. First, if “jurisdiction … actually exists,” plaintiffs – or, here, applicants –
can cite that jurisdiction for the first time on appeal. Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 831 (1989); 28 U.S.C. §1653. Second, subject-matter
jurisdiction does not require specific citations where the “facts alleged and the claim
asserted … were sufficient to demonstrate [jurisdiction’s] existence.” Schlesinger v.
Councilman, 420 U.S. 738, 745 (1975). Third, failure to raise jurisdictional arguments
does not waive those arguments. Sochor v. Florida, 504 U.S. 527, 534 n.* (1992) (“this
defense goes to our jurisdiction and therefore cannot be waived”). Certainly, they can
cite the All Writs Act in their reply.
17
28 U.S.C. §2106. As §2106 makes clear, this Court can not only alter the judgment
from the lower court but also require further proceedings. Indeed, given the questions
about the partisanship of the Pennsylvania Supreme Court majority and their expert,
this Court could even assign a special master to work with the General Assembly to
resolve any state-law issues, assuming that any state-law issues remained after this
Court’s review of the federal issues.
B. The Legislators are likely to prevail on the merits.
In order to warrant a stay, there must be a “fair prospect” of the Legislators’
prevailing. Hollingsworth, 558 U.S. at 190. As explained in the next two sections, the
Legislators likely will prevail under both the Elections Clause and the Due Process
Clause.
1.
The Pennsylvania Supreme Court violated the Elections
Clause.
Even accepting that the Pennsylvania Supreme Court correctly interpreted
that state’s constitution, the remedy that the state court imposed usurped the power
that the Elections Clause gives to the General Assembly. See Appl. 14-22; ThornburgMcCollum Amicus Br. at 8-10. On the subject of a court’s needing to usurp legislative
power to remedy a case or controversy properly before the court, this Court has taken
a jaundiced, wait-and-see view:
The grave consequences which it is asserted must arise in
the future if the right to levy a progressive tax be
recognized involves in its ultimate aspect the mere
assertion that free and representative government is a
failure, and that the grossest abuses of power are
foreshadowed unless the courts usurp a purely legislative
function. If a case should ever arise, where an arbitrary
and confiscatory exaction is imposed bearing the guise of a
18
progressive or any other form of tax, it will be time enough
to consider whether the judicial power can afford a remedy
by applying inherent and fundamental principles for the
protection of the individual, even though there be no
express authority in the Constitution to do so. That the law
which we have construed affords no ground for the
contention that the tax imposed is arbitrary and
confiscatory, is obvious.
Knowlton v. Moore, 178 U.S. 41, 109-10 (1900). As with the tax in Knowlton, the
congressional map here is not so egregiously out of the norm to justify a judicial
remedy egregiously out of the norm.
With statutes, this Court has readily recognized the judiciary’s role as arbiter,
not author, of our laws: “it is not this Court’s function to sit as a super-legislature and
create statutory distinctions where none were intended.” Securities Industry Ass’n v.
Bd. of Governors of Fed’l Reserve Sys., 468 U.S. 137, 153 (1984) (interior quotations
omitted). The same is true in Pennsylvania, as it would have to be true under our
Constitution. U.S. CONST. art. IV, §4, cl. 1. When asked what form of government the
Framers had given us, Benjamin Franklin reportedly replied “A republic … if you can
keep it.” Terence Ball, “A Republic - If You Can Keep It”, in CONCEPTUAL CHANGE AND
THE CONSTITUTION 35, 137 (Terence Ball & J.G.A. Pocock eds., 1988). It now – once
again – falls to the Circuit Justice or the full Court to endeavor to keep the republic.
Amicus EFELDF respectfully submits that these considerations weigh in favor
of this Court’s rejecting the state court’s usurpation of the state legislature’s power
under the Elections Clause.
2.
The Pennsylvania Supreme Court violated the Due
Process Clause.
The Due Process Clause has not only procedural aspects, but also substantive
19
aspects. The Pennsylvania Supreme Court’s decision fell afoul of both aspects.
Procedurally, the Pennsylvania Supreme Court announced its full verdict on
February 7, 2018, just two days before its deadline to cure the purported defects of
the 2011 map, when it was literally impossible for the General Assembly to respond.
PA. CONST. art. III, §4 (requiring consideration of bills for three days in each house).
On the other hand, if the Pennsylvania Supreme Court wanted to claim that the court
had met its full obligations in its order dated January 22, 2018, that order was
insufficient to alert the General Assembly of the legislature’s purported obligations
under the state court’s brand new interpretation – then without citation, even – of
the Pennsylvania Constitution. Both alternatives fail due process by denying the
General Assembly an “opportunity to be heard at a meaningful time and in a
meaningful manner,” Mathews, 424 U.S. at 333, on an issue – namely, creating a new,
compliant map – that is the exclusive purview of the legislature under the Elections
Clause.
Significantly, our constitutional structure and heritage of divided power and
dual federal-state sovereignty protects liberty. Mistretta v. U.S., 488 U.S. 361, 380
(1989); U.S. v. Munoz-Flores, 495 U.S. 385, 394-96 (1990). Indeed, the “history of
liberty has largely been the history of observance of procedural safeguards” Corley v.
U.S., 556 U.S. 303, 321 (2009) (interior quotations omitted), and thus “‘procedural
rights’ are special.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992) (interior quotations omitted). As this Court has explained, “Procedure of this style has been
questioned even in systems, real and imaginary, less concerned than ours with the
20
right to due process,” Nelson v. Adams USA, Inc., 529 U.S. 460, 468 (2000):
“‘Herald, read the accusation!’ said the King.
On this the White Rabbit blew three blasts on the trumpet,
and then unrolled the parchment scroll, and read as
follows:
‘The Queen of Hearts, she made some tarts, All on a summer
day: The Knave of Hearts, he stole those tarts,
And took them quite away!’
‘Consider your verdict,’ the King said to the jury.
‘Not yet, not yet!’ the Rabbit interrupted. ‘There’s a great
deal to come before that!’”
Id. n.2 (quoting LEWIS CARROLL, ALICE IN WONDERLAND AND THROUGH THE LOOKING
GLASS 108 (Messner, 1982) (emphasis in THROUGH THE LOOKING GLASS). Amicus
EFELDF submits that, here too, the process requires a great deal more.
The Pennsylvania Supreme Court does not fare better under substantive due
process. While the “power to interpret the Constitution … remains in the Judiciary,”
City of Boerne v. Flores, 521 U.S. 507, 524 (1997), the power to amend the
Constitution remains with the states. U.S. CONST. art. V; PA. CONST. art. XI, §1.
“Nothing new can be put into the Constitution except through the amendatory
process. Nothing old can be taken out without the same process.” Ullmann v. U.S.,
350 U.S. 422, 428 (1956), which is a principle that applies equally in Pennsylvania.
Pa. Prison Soc’y v. Commonwealth, 727 A.2d 632, 635 (Pa. Commw. Ct. 1999)
(invalidating a constitutional amendment because the process of its adoption violated
another provision of the Pennsylvania Constitution). The federal and state
constitutions are not blank checks with which judges can remake this Nation or a
21
state, wholly apart from the states’ and the People’s intent in ratifying a constitution’s
generally worded provisions. Accordingly, this Court already has recognized the
limits posed on using the generally worded Due Process Clause to legislate beyond
“fundamental rights and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition.” Washington v. Glucksberg, 521 U.S. 702, 720-21
(1997). Amicus EFELDF respectfully submits that this Court should adopt a statelaw version of Glucksberg to pare judicial activism. Although enforcing a republican
form of government under U.S. CONST. art. IV, §4, cl. 1 for all state-court usurpations
may be non-justiciable under Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118
(1912), enforcing the Elections Clause is entirely justiciable.
III.
THE OTHER STAY CRITERIA TIP IN THE LEGISLATORS’ FAVOR.
Although the likelihood of this Court’s granting a writ of certiorari and ruling
for the Legislators on the merits would alone justify granting a stay, amici EFELDF
addresses the three other potential stay factors. All of these factors weigh in favor of
staying the Pennsylvania Supreme Court’s actions until the conclusion of any timely
filed petition for a writ of certiorari.
A.
The Legislators’ harm is irreparable.
For stays, the question of irreparable injury requires a two-part “showing of a
threat of irreparable injury to interests that [the applicant] properly represents.”
Graddick v. Newman, 453 U.S. 928, 933 (1981) (Powell, J., for the Court4). “The first,
4
Although Graddick began as an application to a circuit justice, the Chief
Justice referred the application to the full Court. Graddick, 453 U.S. at 929.
22
embraced by the concept of ‘standing,’ looks to the status of the party to redress the
injury of which he complains.” Id. “The second aspect of the inquiry involves the
nature and severity of the actual or threatened harm alleged by the applicant.” Id.
The Legislators meet both tests.
As to standing, the Legislators have standing not only to defend state law in
the form of the 2011 map, Diamond v. Charles, 476 U.S. 54, 62-63 (1986), but also to
defend the legislative prerogatives under the Elections Clause from encroachment by
the partisan state-court majority. Karcher v. May, 484 U.S. 72, 82 (1987). Moreover,
because they have independent constitutional standing and a close relationship with
the federal legislators that serve Pennsylvania and the Pennsylvania electorate, the
Legislators also can press the harms that will afflict Pennsylvania and its delegations
to Congress.
As to irreparable harm, amicus EFELDF agrees with amici Thornburg and
McCollum that it would be essentially impossible to restore the status quo ante if this
Court allows the state-court map to govern the 2018 primaries and mid-term election
and later reverses the state court. See Thornburg-McCollum Amicus Br. at 13.
Candidates will win or lose, offices will be disbanded and staff will move on. Moreover,
the electoral confusion will be complete with the election, and the stain of illegitimacy
will hang over the election results.
B.
The equities balance in favor of the Legislators.
The third stay criterion is the balance of equities, which tips in the Legislators’
favor because the merits tip in their favor.
23
C.
The public interest favors a stay.
The last stay criterion is the public interest. While the Pennsylvania Supreme
Court majority has injected itself into this litigation as a judicial challenger to state
law, the case began as – and, for stay purposes, remains – litigation by voters against
the state’s electoral map. Where the parties dispute the lawfulness of government
programs, this last criterion collapses into the merits. 11A CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. Civ.2d §2948.4. If the
Court sides with the Legislators on the merits, the public interest will tilt decidedly
toward the Legislators: “It is in the public interest that federal courts of equity should
exercise their discretionary power with proper regard for the rightful independence
of state governments in carrying out their domestic policy.” Burford v. Sun Oil Co.,
319 U.S. 315, 318 (1943). As between the Legislators and the original petitioners, the
public-interest factor favors the Legislators.
Using a writ of mandamus can “ha[ve] the unfortunate consequence of making
a district court judge a litigant,” Daiflon, Inc., 449 U.S. at 35, but here it would not
be this Court’s or the Legislators doing: the Pennsylvania Supreme Court majority
made themselves a virtual litigant here all by themselves. As to the judicial attempt
to usurp the General Assembly’s obligations under the Elections Clause, the publicinterest criterion heavily favors the Legislators.
CONCLUSION
This Court should stay the actions of the Pennsylvania Supreme Court in this
litigation, pending the timely filing and resolution of a petition for a writ of certiorari.
24
Dated: March 5, 2018
Respectfully submitted,
/s/ Lawrence J. Joseph
_____________________________________
Lawrence J. Joseph
1250 Connecticut Av NW Suite 200
Washington, DC 20036
Telephone: (202) 355-9452
Facsimile: (202) 318-2254
lj@larryjoseph.com
Counsel for Amicus Curiae Eagle Forum
Education & Legal Defense Fund
25
CERTIFICATE AS TO FORM
Pursuant to Sup. Ct. Rules 22 and 33, I certify that the foregoing motion for
leave to file, motion for leave to file in 8.5-by-11-inch format, and the accompanying
amicus brief are proportionately spaced, have a typeface of Century Schoolbook, 12
points, and contain 3, 2, and 19 pages (and 470, 251, and 5,092 words) respectively,
excluding this Certificate as to Form, the Table of Authorities, the Table of Contents,
and the Certificate of Service.
Dated: March 5, 2018
Respectfully submitted,
/s/ Lawrence J. Joseph
Lawrence J. Joseph, DC Bar #464777
1250 Connecticut Av NW Suite 200
Washington, DC 20036
Telephone: (202) 355-9452
Facsimile: (202) 318-2254
lj@larryjoseph.com
Counsel for Movant and Amicus Curiae
CERTIFICATE OF SERVICE
The undersigned certifies that, on this 5th day of March, 2018, in addition to
filing the foregoing document via the Court’s electronic filing system, one true and correct
copy of the foregoing document was served by U.S. Mail, postage pre-paid, with a PDF
copy was served via electronic mail on the following counsel:
Alex Michael Lacey
Cohen & Grigsby, P.C.
625 Liberty Avenue
Pittsburgh, PA 15222
alacey@cohenlaw.com
Clifford B. Levine
Cohen & Grigsby, P.C.
625 Liberty Avenue
Pittsburgh, PA 15222-3152
clevine@cohenlaw.com
Benjamin David Geffen
1709 Benjamin Franklin Parkway,
2nd Floor
Philadelphia, PA 19103
bgeffen@pilcop.org
Alice Birmingham Mitinger
Cohen & Grigsby, P.C.
625 Liberty Avenue
Pittsburgh, PA 15236
amitinger@cohenlaw.com
Carolyn Batz McGee
650 Washington Road, Suite 700
Pittsburgh, PA 15228
Phone: 412-563-2500
cmcgee@c-wlaw.com
Karl Stewart Myers
Stradley Ronon Stevens & Young, LLP
2005 Market Street, Suite 2600
Philadelphia, PA 19103
kmyers@stradley.com
Claudia De Palma
One Logan Square, 27th Floor
Philadelphia, PA 19103
Phone: 215-568-6200
cdp@hangley.com
Kathleen Marie Kotula
Room 306 North Office Building
401 North Street
Harrisburg, PA 17120-0500
kkotula@pa.gov
Jason Raymond McLean
650 Washington Rd. #700
Pittsburgh, PA 15228
jrmclean@c-wlaw.com
Ian Blythe Everhart
306 North Office Building
Harrisburg, PA 17120
ieverhart@pa.gov
Mark Alan Aronchick
One Logan Square, 27th Floor
Philadelphia, PA 19103
maronchick@hangley.com
Kathleen A. Gallagher
650 Washington Road, Suite 700
Pittsburgh, PA 15219
kgallagher@c-wlaw.com
David P. Gersch
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Ave, NW
Washington, DC 20001
david.gersch@apks.com
Russell David Giancola
Cipriani & Werner, PC
650 Washington Road, Suite 700
Pittsburgh, PA 15228
rgiancola@c-wlaw.com
Michael Churchill
1709 Ben Franklin Pkwy. 2fl
Philadelphia, PA 19103
mchurchill@pilcop.org
Mary M. McKenzie
1709 Benjamin Franklin Parkway
Philadelphia, PA 19103
mmckenzie@pubintlaw.org
Lawrence J. Tabas
Centre Square West, 34th Floor
1500 Market Street
Philadelphia, PA 19102
lawrence.tabas@obermayer.com
Rebecca Lee Warren
Centre Square West, 34th Floor
1500 Market Street
Philadelphia, PA 19102
rebecca.warren@obermayer.com
Michele D. Hangley
Hangley Aronchick at al.
One Logan Square, 27th Floor
Philadelphia, PA 19103
mhangley@hangley.com
Thomas Paul Howell
333 Market Street, 17th Floor
Harrisburg, PA 17101
Phone: 717-772-4252
thowell@pa.gov
Timothy Eugene Gates
Dep’t of State, Office of Chief Counsel
306 North Office Building
Harrisburg, PA 17120
tgates@pa.gov
Jason Torchinsky
45 North Hill Dr. Suite 100
Warrenton, VA 20186
jtorchinsky@hvjt.law
The undersigned further certifies that, on this 5th day of March, 2018, an
original and ten true and correct copies of the foregoing document were served on the
Court by hand delivery.
Executed March 5, 2018, at Washington, DC,
/s/ Lawrence J. Joseph
__________________________
Lawrence J. Joseph
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.