What Good Is a Treaty That Congress Can Simply Discard? Quite a Bit, as the Creek Nation’s Victory in the Supreme Court Shows

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.

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Renner v. CCP of Lehigh Co., et al

Docket: 52 MAP 2019

Opinion Date: July 21, 2020

Judge: Debra McCloskey Todd

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Government & Administrative Law, Labor & Employment Law

In this appeal by allowance, the issue presented for the Pennsylvania Supreme Court was whether application of the Pennsylvania Human Relations Act (“PHRA”) to the judicial branch of our tripartite form of government violated separation of powers principles. On April 3, 1989, the Lehigh County Court of Common Pleas (“CCP”) Office of Adult Probation hired Appellant Michael Renner as a Parole Officer. In July 2011, Appellant informed Lehigh County Chief Probation Officer John Sikora that he had been diagnosed with a serious mental health condition and was hospitalized; he was subsequently absent from work for 4 to 6 weeks. During Appellant’s absence, Sikora telephoned him numerous times to confirm the legitimacy of Appellant’s condition. Upon his return to work, Appellant alleged Sikora and Lehigh County Benefits Manager Mark Surovy, both of whom supervised Appellant, pressured Appellant to resign or take a leave of absence. Appellant confronted Sikora about his hostilities towards him, but Sikora refused to discuss the matter. Subsequently, in March 2014, Sikora terminated Appellant for failing to administer a urine test to an offender under his supervision. Appellant claimed the test was not required and that the reason for his termination was pretextual. Appellant protested his termination to then-President Judge of the CCP Carol McGinley, but Judge McGinley refused to take any action. As a result, Appellant claimed he could not obtain other employment in any other court system, and, in 2014, he filed a charge of unlawful discrimination with the Equal Employment Opportunity Commission, which was dual-filed with the Pennsylvania Human Relations Commission (“PHRC”), against Lehigh County Adult Probation, Sikora, and Surovy. Thereafter, Appellant completed training as a municipal officer, and, subsequently, was offered a police officer position by Northampton and Fountain Hill Boroughs. Appellant alleged that the CCP and Lehigh County learned that Appellant was offered employment as a police officer, and caused an order to be issued banning Appellant from possessing a firearm or taser in the Lehigh County Courthouse, Old Courthouse, and Government Center. As a result, Northampton and Fountain Hill Boroughs rescinded their employment offers. Appellant eventually got his gun possession ban lifted, but as a condition, the CCP and Lehigh County required him to undergo a medical exam, which Appellant contended was a violation of the PHRA. The Pennsylvania Supreme Court concluded that application of the PHRA to the judiciary would violate separation of powers principles, and thus, affirmed the order of the Commonwealth Court.

Walsh v. BASF Corporation et al.

Dockets: 14 WAP 2019, 15 WAP 2019, 16 WAP 2019, 17 WAP 2019, 18 WAP 2019

Opinion Date: July 21, 2020

Judge: Donohue

Areas of Law: Civil Procedure, Personal Injury, Products Liability

Appellants, the manufacturers of various pesticides, appealed a Superior Court decision reversing the trial court’s grant of summary judgment in their favor following the trial court’s determination that the testimony of the experts proffered by Appellee, the Executor of the Estate of Thomas J. Walsh, failed to satisfy the test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). For nearly forty years, Walsh served as a groundskeeper and golf course superintendent at several Pittsburgh area golf courses. His work involved the regular application of various pesticides (primarily insecticides and fungicides) on the golf courses. Over this time, Walsh kept a detailed record of his activities regarding the pesticides he used, including a detailed log of the specific products and the dates of their applications. In 2008, Walsh was suffering from fever, chills, and a cough when he arrived at an emergency room. A bone marrow biopsy resulted in a diagnosis of Acute Myelogenous Leukemia (“AML”). Cytogenetic testing revealed significant chromosomal aberrations. On February 2, 2009, Walsh died. His treating oncologist, James Rossetti, D.O., later opined that Walsh’s extensive exposure to pesticides raised a high degree of suspicion that said exposure played a significant role in the development of his AML. After review, the Pennsylvania Supreme Court affirmed the Superior Court’s ruling, but gave instructions that on remand to the trial court, the Appellants should be given the opportunity to renew their Frye motions.

Pennsylvania v. Montgomery

Docket: 4 EAP 2019

Opinion Date: July 21, 2020

Judge: Max Baer

Areas of Law: Constitutional Law, Criminal Law

Appellant Darren Montgomery was charged with one count each of carrying a firearm on public streets in Philadelphia, and carrying a firearm without a license. The issue on appeal to the Pennsylvania Supreme Court centered on whether the superior court erred in holding that a handgun partially tucked into one’s waistband, leaving the weapon’s handle visible, was “concealed” as a matter of law for purposes of Section 6106 of the Uniform Firearm’s Act, 18 Pa.C.S. 6106, which prohibited carrying a concealed firearm without a license. The Supreme Court rejected the superior court’s holding that any level of concealment of a firearm demonstrated concealment as a matter of law, and reaffirmed the well-settled principal that whether a defendant concealed a firearm pursuant to Section 6106 was an extremely fact-intensive question for a jury to determine based upon a consideration of the totality of the circumstances. Nevertheless, the Supreme Court held that a review of the totality of the circumstances established there was sufficient evidence to demonstrate a prima facie case of concealment under Section 6106. Accordingly, the Supreme Court affirmed the superior Court’s judgment, which reversed the trial court’s order dismissing the Section 6106 charge. The matter was remanded for further proceedings.

Pennsylvania v. Witmayer

Dockets: 64 MAP 2018, 35 MAP 2018

Opinion Date: July 21, 2020

Judge: Dougherty

Areas of Law: Constitutional Law, Criminal Law

In consolidated appeals, the Commonwealth challenged orders of the Montgomery County Court of Common Pleas relieving appellees, Claude Lacombe and Michael Witmayer, of their duty to comply with Subchapter I of the Sex Offender Registration and Notification Act (SORNA), based upon the court’s finding Subchapter I, as retroactively applied to appellees, was a punitive and unconstitutional ex post facto law. After review of the trial court records, the Pennsylvania Supreme Court concluded the trial court erred, and found Subchapter I was nonpunitive and did not violate the constitutional prohibition against ex post facto laws.