15-0 Petitioner's Reply Brief Filed
October 9th, 2020
REPLY BRIEF OF PETITIONER IN FURTHER SUPPORT OF APPLICATION FOR SUMMARY RELIEF
None of the three issues raised by the Department of Human Services (“DHS”) in opposition to the Application for Summary Relief prevents the Court from immediately granting relief; those three issues are addressed below. But at the outset, the Court should observe that, to date, DHS still has stated no position on any of the substantive issues in this request for summary relief. For instance, not only does the record not yet reflect whether Ivy Hill Congregation’s elders are “clergymen” according to DHS, but also the record does not even reflect DHS’s legal view on what “clergymen” are. One would think the Commonwealth agency charged with receiving reports from “mandatory reporters” would at least have a view on who such reporters are and when they are legally obligated to speak. Further, DHS has expressed no view on whether the clergymen’s privilege in the Judicial Code, which is inextricably linked to the statute that DHS itself administers, does or does not reflect an impermissible denominational preference. DHS has not even offered a basic statement that the statute is constitutional. Instead, it has simply begged the Court, for various procedural reasons, not to reach the merits of Count II (or Count I for that matter). All of this should be construed as an implicit admission by DHS that it has no view on any of the merits, or, that it in fact agrees with Ivy Hill Congregation’s positions. In light of this silence from DHS, a declaration from the Court is vital to allow Ivy Hill Congregation’s elders to rest assured that they are complying with the law and that the law allows them to worship according to the dictates of their faith. In short, relief is not only warranted, but it is summarily necessary.
A. No procedural impediments prevent this Court from granting summary relief. In its summary relief response brief, DHS, through its attorneys at the Office of Attorney General, argues this Court should avoid a determination on the merits because of DHS’s pending Preliminary Objections and also because of an alleged failure to give notice to the Attorney General under Pa.R.A.P. 521 and Pa.R.C.P. 235. See DHS br. at 7-9. Both of these procedural arguments fail. As to the existence of the pending Preliminary Objections, that objection can be quickly dispatched. As DHS itself admits, summary relief can be granted despite the pendency of preliminary objections. See DHS brief at 7 (“Respondent is aware that an application for summary relief may be granted prior to disposing of outstanding preliminary objections.”). Further, even were that not so, none of the Preliminary Objections has merit, as fully explained in Ivy Hill Congregation’s Brief in Opposition to Preliminary Objections. Thus, the Preliminary Objections are not a barrier to summary relief. As to the alleged notice defect under Appellate Rule 521 and Civil Rule 235, that challenge fails for procedural, factual, and equitable reasons. Procedurally, Appellate Rule 521(a) and Civil Rule 235 only require a party to give affirmative notice to the Attorney General in a constitutional challenge where the Commonwealth is not already a
party. See Pa.R.A.P. 521(a) (“It shall be the duty of a party who draws in question the constitutionality of any statute in any matter in an appellate court to which the Commonwealth or any officer thereof, acting in his official capacity, is not a party…” (emphasis added)); Pa.R.C.P. 235 (“In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be unconstitutional or a charitable bequest or trust is involved and the Commonwealth is not a party…” (emphasis added)); see also 20 West’s Pa. Prac., Appellate Practice § 521:3 (“There is no need under Rule 521(a) to give notice of the constitutional challenge to the Attorney General if the Commonwealth or any Commonwealth officer, acting in an official capacity, is a party.”).1 2 Here, the Commonwealth is a party through the Department of Human Services; indeed, the caption of the Petition for Review makes this plain: “Ivy Hill Congregation of Jehovah’s Witnesses v. Commonwealth of Pennsylvania, Department of Human Services.” See Petition for Review; see also Docket, 316 MD 2020 (Pa. Cmwlth.) (listing Respondent as “Commonwealth of Pennsylvania, Department of Human Services”). As this Court has held, when an integral Commonwealth agency, like DHS, is a party to a proceeding, no notice to the Attorney General is required. See Lee v. Com., Bureau of State Lotteries, Dep’t of Revenue, 492 A.2d 451, 452 (Pa. Cmwlth. 1985); see also 20 West’s Pa. Prac., Appellate Practice § 521:3.3 Thus, procedurally, Appellate Rule 521 and Civil Rule 235 simply do not apply.
Factually, even if Appellate Rule 521 applies, the required notice was given. Indeed, as shown by the Proof of Service generated by PACFile upon the filing of the Petition for Review by Ivy Hill Congregation, the Attorney General was immediately electronically served with the Petition on May 20, 2020. See Proof of Service (May 20, 2020) (showing service upon “Attorney General” via “eService” method on 5/20/2020) (attached as Exhibit A); see also Commonwealth Court, Notice of Filing Petition for Review or Complaint (May 21, 2020) (notice from Commonwealth Court advising of Petition for Review and showing service on Joshua D. Shapiro) (attached as Exhibit B). Hence, the notice required by Appellate Rule 521 was supplied.4
Finally, the notice challenge also fails as a matter of equity. As Appellate Rule 105 makes plain, the rules of procedure should be “liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable.” Pa.R.A.P. 105(a). This is effectively a rule of equity that elevates fairness over inflexible compliance with the rules. In the clear equitable spirit of Appellate Rule 105, no additional notice to the Attorney General is required here for at least two reasons (as noted above, notice was first given on May 20, 2020 via PACFile). One, DHS is represented by the Attorney General, so it is odd to suggest that somehow the Attorney General is not on notice of the issues when the very document in which the purported lack of notice is raised is filed under his signature. See DHS br. at 16 (first name after “Respectfully submitted” is “JOSH SHAPIRO, Attorney General”). Two, the Office of Attorney General entered its appearance on behalf of DHS on July 15, 2020, and then just a few weeks later filed Preliminary Objections (on July 31, 2020). At no point in the Preliminary Objections, or in the many weeks and months since they were filed, did the attorneys at the Office of Attorney General raise any concerns about Appellate Rule 521 or Civil Rule 235. In other words whatever alleged “notice defect” that exists in this case has existed for many months, and the Attorney General ignored it until just before the close of briefing. This is contrary to the speedy disposition ensured by Appellate Rule 105(a). Thus, even if procedurally and factually DHS’s notice argument had merit (it does not), equitably its argument is certainly unmeritorious. In sum, the Court should ignore the host of procedural challenges raised by DHS and should address the merits of the Application for Summary Relief.