In OTHER arguments

After hearing oral arguments last week, the state Supreme Court is poised to decide whether a lawyer has standing to file a private criminal complaint asking the Philadelphia District Attorney’s Office to file murder charges against two parole officers who shot and killed a parolee in 1997.

Philadelphia attorney Leon A. Williams filed a private criminal complaint over the death of Kenneth L. Griffin after a grand jury declined to indict state parole agents Isaac Hickson and Robert R. Martinez in October 1998.

Williams argued the case before the court. Attorney Richard A. Sprague argued on behalf of the commonwealth.

The justices engaged in a spirited debate with both attorneys. Chief Justice Stephen A. Zappala and Justice Ronald D. Castille were the most vocal in the argument. Castille, a former district attorney, said allowing standing in a case such as the one at bar would open a “Pandora’s box.”

Griffin was shot Sept. 26, 1997, during a confrontation with agents pursuing him for fleeing from a halfway house in 1995. The parole officers said they acted in self defense, firing 11 shots because Griffin shot at them first. His family said he was unarmed and naked when he was killed. No weapon was found at the scene.

Williams does not represent Griffin’s family, but he said his lawsuit was appropriate because Griffin’s killing represented a threat to all Pennsylvania residents. Williams ran against current D.A. Lynne Abraham in the last election.

Philadelphia Common Pleas Judge Theresa Sarmina ordered the D.A.’s office to file murder charges, saying the papers filed by Williams established a self-evident case of third-degree murder, manslaughter and reckless endangerment.

A divided Superior Court reversed that order, saying Williams did not have standing to file a criminal complaint, which must be filed by a representative or a relative. Allowing criminal complaints by anyone would allow suits by those seeking “revenge, financial gain, celebrity or all of the above,” and let single-issue groups systematically challenge the D.A.’s decisions, the majority said.

At oral arguments, Williams said he didn’t think standing should even be an issue because there was a wrong done to the commonwealth at large.

“It makes no sense to make me prove that I am an aggrieved party,” Williams said.

Justice Ralph J. Cappy asked Williams if he thought something more than being a citizen was needed to allow standing. Williams said there was not when a wrong against the commonwealth is at issue.

Castille pointed out that the constitution gives “total discretion” to a D.A. to administer over every criminal case in the county. Williams countered that if a D.A. disapproves of filing charges, then the court should be allowed to take over.

Castille said allowing any person to file a private criminal complaint would open a floodgate.

“Don’t you think that would cause a lot of havoc in the criminal justice system?” Castille asked.

Castille also asked if a family member would make a better affiant. Williams said no and said that a family member might be acting out of vengeance or might be seeking money in a civil judgment, and that a party separate from the family would be better suited to file the private criminal complaint.

Williams said that the common pleas court would become the gatekeeper in a case such as his and be able to evaluate the merit of a case.

Sprague said he agreed with Castille’s view that allowing Williams standing would open the door for other lawsuits.

“[Standing] is the gatekeeper to the go into the judicial system,” Sprague said.

Zappala interrupted and gave the current example of a citizen challenging the placement of a Ten Commandments plaque on a county courthouse. Zappala also said Williams’ argument was very “cogent” in that a family member might have an ulterior motive in using the criminal process.

Sprague said a grand jury that heard from 50 witnesses decided that no charges should be filed, and that decision was ultimately approved by the former Philadelphia Common Pleas President Judge Alex Bonavitacola.

But, Zappala said, a common pleas judge said there was sufficient evidence to make a prima facie case.

City Immunity Examined in Lawsuit Over Girard College Liability for Alleged Assault

The state Supreme Court last week heard arguments to consider whether the Board of Directors of City Trusts, a 133-year-old institution created to administer all estates bequeathed to the City of Philadelphia, is a state agency that enjoys sovereign immunity.

Moore v. Board of Directors of City Trusts, PICS Case No. 01-0123 (Pa. Commw. Jan. 18, 2001) Leadbetter, J. (5 pages), is on appeal from a Commonwealth Court decision that concluded that the board is immune. If the ruling is affirmed, the board would be immune from the claims of Rosalind Moore, who sued over physical and sexual assaults her son allegedly suffered from other students while he was a boarder at Girard College.

The estate of Stephen Girard, the largest ever bequeathed to the city, is managed by the Board of Directors of City Trusts.

Moore also sued Girard College and its board of managers for damages, claiming that the college and the boards breached their duty in both contract and tort to keep her son safe.

But last week’s argument contained a surprise twist. Solo practitioner Rhonda Hill Wilson, who argued on behalf of Moore, said that although she had conceded at the trial level that the Board of Directors of City Trusts was a state agency, a recent common pleas case caused her to change her position.

Wilson said her position had been that although the Board of Directors of City Trusts was a commonwealth agency, Girard College was not. But Judge Albert W. Sheppard, in a 2000 ruling, found in Caplen v. Burcik that the board is not an agency of the commonwealth and is not protected by sovereign immunity. Nor could it be considered a local agency, the judge said.

Since then, Wilson said, she has taken the position that the board is not an agency of the state.

“Your argument is that you could revisit your concession at the appellate level?” Justice Ralph J. Cappy asked.

“Yes,” Wilson said.

At the trial level, Common Pleas Court Judge Pamela Pryor Dembe sustained preliminary objections and dismissed Moore’s complaint, finding that her claim could only be filed against the board of trusts and that the board was immune.

Moore then appealed to the Commonwealth Court, where Judge Bonnie Brigance Leadbetter ruled that the board was immune from suit.

Pelino & Lentz attorney Howard A. Rosenthal argued to the justices that the Board of Directors of City Trusts continued to enjoy governmental immunity and that the Caplen decision “did not change the law” in the Sovereign Immunity Act.

“The Board of Directors of City Trusts runs coal mines and Wills Eye Hospital besides Girard College,” Justice Russell M. Nigro said. “Do you suggest that all those [institutions] would be immune?” he asked Rosenthal.

“To the extent they haven’t been waived, yes,” Rosenthal said.

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