Gaughan, county appealing court ruling in vacancy case
Gaughan and the county, co-petitioners in litigation challenging the charter process, are also appealing the panel's ruling that the county lacks authority to proceed as a party in the legal matter.
With Senior Judges Carmen D. Minora and Vito P. Geroulo in the majority and Senior Judge Robert A. Mazzoni dissenting, the three-judge panel ruled Thursday that the charter supersedes a state rule of judicial administration that would have removed the county Democratic Committee from the replacement process. It amounted to a legal victory for the committee, which the charter tasks with playing a major role in filling vacancies when a Democratic commissioner or other elected Democratic county row officer leaves office mid-term.
Attorneys for Gaughan and the county filed a notice Friday in county court stating the parties are appealing the ruling in Commonwealth Court. The Scranton law firm Myers, Brier & Kelly filed the notice as part of its standing engagement, county spokesman Patrick McKenna said in an email, nothing there will be no further cost associated with the appeal.
The HRC specifically tasks the Democratic Committee with submitting the names of three potential candidates to fill the vacancy for consideration by the commissioned judges of the county Court of Common Pleas, and the judges with appointing McGloin's successor from that short list. That process played out controversially in late February when the committee held a closed-door vote to submit former county Economic Development Director Brenda Sacco, Olyphant Borough Council President James Baldan and Scranton School Director Robert J. Casey as potential appointees.
Gaughan and the county challenged the charter process in March, arguing it violates Pennsylvania Rule of Judicial Administration 1908. That rule, adopted by the state Supreme Court in 2019, says the county court alone, not a political party, 'shall receive applications from any interested candidates for the position' pursuant to a deadline established by the court.
Both sides made their respective cases in court filings and during oral arguments before the panel, with the committee arguing for the supremacy of the charter and Gaughan and the county for Rule 1908.
Minora and Geroulo ultimately ruled the charter process supersedes the rule of judicial administration, writing that Gaughan and the county's reading of Rule 1908 'simply defies logic and means every time the court issues a new rule, be it administrative or procedural, HRC communities better hold their breath lest their constitutionally guaranteed right to self-rule be consumed … by a pac-man like anonymous rule making committee unanswerable to any public input.'
Mazzoni, dissenting, wrote that the 'clear and unambiguous language in Rule 1908 … makes its application in this case compelling.'
'As noted in the language of Rule 1908, the application of this Rule makes the selection of a candidate more transparent and, of course, more diverse by creating a larger pool of worthy applicants,' Mazzoni wrote. 'A result which truly serves the ends of justice.'
The senior judges spoke in one voice on another element of the case, unanimously ruling that the county lacks authority to proceed as a party to the matter while rejecting the claim that county Solicitor Donald Frederickson can commence and prosecute litigation on behalf of the county without authorization from a majority of the commissioners. The county has no authority to proceed because Republican Commissioner Chris Chermak, one of two sitting commissioners, never authorized the county's participation, per the ruling.
Attorneys for Chermak — who himself objected to the use of county personnel, resources and taxpayer money to make the legal challenge — had argued in court against the county's participation for that reason.
The senior judges did, however, rule that Gaughan has standing to proceed in his official capacity as commissioner since he has a substantial, direct and immediate interest in the case.
'The employment of an appropriate selection process can have an impact on Gaughan's ability to function as a Commissioner,' they wrote.
The ruling notes that Chermak also has standing as a commissioner.
County President Judge James Gibbons has not provided specific details or a timeline on how the county judges might proceed in light of Thursday's ruling, now being appealed, which orders them to 'follow the directives of the Home Rule Charter' when filling McGloin's seat.
'We will provide information as it becomes available,' Gibbons said in an email.
Reached Friday morning, Frederickson said the appeal will stay Thursday's county court ruling pending a ruling from the appellate court.
The notice of appeal filed Friday is not the appeal itself, which will be filed at a later date.
County Democratic Chairman Chris Patrick declined to comment on the appeal beyond saying 'they have to do whatever they have to do.'
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