Philadelphia City Hall. Photo: Shutterstock

Closely watched cases, including a challenge to Pennsylvania's death penalty and the disciplinary proceedings against Penn State's former general counsel Cynthia Baldwin, are set to kick off the state Supreme Court's fall session, which is set to begin today in Philadelphia.

The justices are scheduled to hear arguments in a total of 17 cases during its three-day oral argument session. Along with the death penalty challenge and disciplinary proceedings, the seven-member court is expected to hear argument on a range of topics, including the availability of unemployment benefits for Uber drivers and whether the rule of capture applies to fracking.

Public Censure for Baldwin?

The first argument the justices are set to hear this morning deals with the disciplinary proceedings against former Supreme Court Justice Baldwin, who also served as Penn State's general counsel during the grand jury investigations of convicted serial child molester Jerry Sandusky and three former university officials.

The disciplinary proceedings against Baldwin, which were first lodged in late 2017, allege she failed to mention a conflict of interest and attorney-client privilege. Specifically, the Pennsylvania Office of Disciplinary Counsel claims Baldwin failed to properly represent vice president Gary Schultz and athletic coach Tim Curley before the investigating grand jury and gave confidential client information during her own grand jury testimony. According to the office, Baldwin did not notify her clients of a conflict of interest with the university.

The Disciplinary Board of the Pennsylvania Supreme Court recommended in March that Baldwin be publicly censured for the conduct, adding that, since the alleged misconduct did not "reflect dishonesty in the practice of law," it did not believe Baldwin should be disbarred or have her law license suspended.

The board's recommendation was a departure from a panel's recommendation, which had suggested the claims against Baldwin be dismissed.

Death Penalty

The second day of the September session is scheduled to begin with a focus on the high-profile challenge to the state's death penalty.

The justices are set to hear argument in the consolidated appeals of Cox v. Commonwealth and Marinelli v. Commonwealth starting at 9:30 a.m. Wednesday. The case comes before the justices in an unusual posture, as the justices agreed to hear the case under their extraordinary King's Bench jurisdiction.

However, a possibly more unusual feature is the fact that the Philadelphia District Attorney's Office, which is prosecuting the case, is in agreement with the defendant that the death penalty statute is unconstitutional as applied. The prosecutor's brief, entered in July, garnered significant media attention as it marked what one court observer called an "unprecedented" move of having a prosecutor's office pushing to have a death-penalty statute struck down.

To support the argument, Philadelphia District Attorney Larry Krasner's office conducted a review of nearly all capital cases out of Philadelphia between 1978 and 2017, and found it was being applied in a "wonton and freakish, arbitrary and capricious manner," quoting language from a 1982 Pennsylvania Supreme Court decision. Specifically, the brief cited racial disparities and the high rate of sentences being overturned due to ineffective court-appointed attorneys.

"Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is significant likelihood that capital punishment has not been reserved for the 'worst of the worst,'" the brief said. "Rather, what our study shows is that, as applied, Pennsylvania's capital punishment regime may very well reserve death sentences for those who receive the 'worst' (i.e. the most poorly funded and inadequately supported) representation."

Krasner's position splits from those presented by other prosecutors, including the Pennsylvania Attorney General's Office, which said the court should defer to the General Assembly on the issue, and the Pennsylvania District Attorneys Association, which asked the court to reject the constitutional challenge.

Although Chief Justice Thomas Saylor has hinted at possible agreement with Krasner's position—even saying in 2013 in the Widener Law Journal that the "current state of Pennsylvania's capital jurisprudence is impaired"—court watchers have questioned how forcefully Saylor and the rest of the court might address an issue that could be seen as the legislature's prerogative.

Along with the prosecutor and defendants, the Pennsylvania Senate Republican Caucus is also set to present oral arguments in the case as an amicus curiae.

Uber, Fracking and Facebook Comments

The justices are also set to consider whether out-of-work Pennsylvanians who drive for a ride-hailing service in their spare time should be automatically ineligible for unemployment benefits in the case Lowman v. Unemployment Compensation Board of Review.

In January 2018, an en banc Commonwealth Court panel determined that a former behavioral health specialist should be entitled to unemployment benefits, despite earning money as an Uber driver after he lost his job. The decision reversed a holding from the Unemployment Compensation Board of Review.

The UCBR had determined that the driver, Donald Lowman, could not receive the benefits because driving for Uber constituted "self-employment." The appellate court, however, said Lowman's earnings could defray the amount of benefit received but were not a disqualifier. The ruling addressed an apparent matter of first impression and deals with one way the gig economy intersects with traditional economic benefits.

On Thursday, the justices are also set to begin the last day of arguments by considering whether the rule of capture, which precludes trespass liability for drillers where oil and gas drains from surrounding lands in the course of conventional extraction from an underground pool, applies where shale gas is extracted through hydraulic fracturing.

The case also marks an issue of an apparent case of first impression.

The Superior Court, ruling previously in Briggs v. Southwestern Energy Production, determined that the rule of capture did not preclude liability for trespass. The decision reversed a Susquehanna County trial judge's ruling granting summary judgment to defendant Southwestern Energy Production Co. on claims of trespass and conversion by a group of property owners.

The property owners alleged that Southwestern had unlawfully extracted gas from beneath their property while drilling on an adjoining property.

The last case the justices are set to consider during the session is expected to address a ruling by the Commonwealth Court that determined the Pennsylvania Department of Transportation should not have fired an employee after she complained on Facebook about school bus drivers in her area, saying she "will gladly smash into a school bus."

In the case Carr v. PennDOT, the justices are set to consider, among other things, whether the Commonwealth Court gave sufficient weight to the "public importance, or lack thereof, of Rachel Carr's Facebook comments."