With the upcoming primary election on May 18th and many individuals inquiring of who I am supporting, I am announcing my unconditional and unequivocal support of current President Judge Kevin Brobson of the Commonwealth Court.
While many of you know that I would only ever support a strict constructionist/originalist, some of you may wonder why I am supporting his campaign and the answer is simple. If you care about your constitutional and statutory rights and protections, Judge Brobson is the candidate, with a track record, of protecting them and upholding the rule of law.
I can attest to this from my own personal experience, as an attorney, who has litigated a number of cases before him, both in the Commonwealth Court’s appellate and original jurisdiction. While many of you know that the Commonwealth Court, generally, is an appellate court, which presides over certain appeals, few are aware that the Commonwealth Court also, in very limited circumstances, acts as a trial court. For example, if you were to sue a Pennsylvania administrative agency (e.g. Pennsylvania State Police), it is likely that the Commonwealth Court has original jurisdiction over the case. Although many judges on the Commonwealth Court loathe having to act as a trial court in an original jurisdiction matter, my experience has been the opposite before President Judge Brobson.
Most recently, I was before now President Judge Brobson in Landmark Firearms, LLC, et al. v. PSP Commissioner Evanchick, in a challenge to Attorney General Josh Shapiro and the PSP’s implementation and enforcement of its “policy” regarding what it referred to both as “partially-manufactured frames and receivers” and “80% receivers.” After filing the initial Petition for Review (i.e. complaint), I immediately filed for a preliminary injunction, which was assigned to Judge Brobson to hear. The Attorney General’s Office brought every attorney they had, including the PSP’s attorneys to the hearing; the only one missing was AG Josh Shapiro, himself. Judge Brobson presided over the hearing, and although it seemed as though he was far tougher on me than he was the Commonwealth’s attorneys, I knew that I had the burden and he expected more from me than he did the Commonwealth’s attorneys. Throughout the hearing, he was fair, impartial, and cordial. He took copious notes, was engaged the entire time, and seemed intrigued by some of the tactical decisions I made during the the hearing. During my questioning of a Lt. Col. of the PSP, who was a witness for the Commonwealth, I believe he realized why I had made the tactical decisions I had. Picking up on the testimony I solicited from the PSP Lt. Col., during oral argument, the following question and response occurred between Judge Brobson and the one attorney from the Attorney General’s Office:
Shortly after the hearing, in a 17 page decision, Judge Brobson granted our motion for a preliminary hearing, finding:
The term frame or receiver is not defined in the UFA, PSP has not promulgated any regulations to define what constitutes a frame or receiver, and PSP is no longer following the ATF’s lead regarding what constitutes the frame or receiver of a weapon. Rather than clarify, the new PSP policy adds confusion by introducing a new term” partially manufactured receiver”-and a new form-Form SP 4-121-into the mix of gun regulations without an explanatory bridge tying them back to the UFA.
Guidance to the firearms industry and the public on this change in policy is critical. The only document that currently sets forth PSP’s change in interpretation is the PSP Letter. That letter merely sets forth the blanket statement that partially manufactured receivers are considered firearms with respect to certain sections of the UFA, without providing a definition of the term partially manufactured receiver; a description or examples of the products that PSP believes, under its new interpretation, fall within the sweep of the statutory definition of firearm; or any guidance as to how this new term will be interpreted and applied by PSP going forward. The mere mention of the AG Opinion is not enough to provide fair notice or warning to the public as to how sellers or purchasers of this undefined class of unfinished receivers may comply with the UFA and avoid criminal prosecution. Due process demands more.
All of this-(1) PSP’s failure to explain how its new policy on partially manufactured frames or receivers differs from its prior policy and that of the ATF, such that those subject to the UFA have fair notice of PSP’s change in policy; (2) PSP’s failure to tether its new policy to the text of the UFA, particularly the term “frame or receiver” in the relevant definition of firearm; (3) the introduction of a new term, partially manufactured receiver, as opposed to simply defining what a “frame or receiver” is under the UFA as including what PSP now seeks to capture; and ( 4) the deployment of a new form to be used with respect only to sales/transfers of a subclass of firearms, which lacks any level of specificity, where PSP regulations provide for a specific form to be used in all firearms transactions under the UFA sows confusion within the industry and the public.
But, this is only one example of his ardent strict constructionist/originalist philosophy, which is aligned with the late Justice Antonin Scalia. In an appellate jurisdiction case involving Pennsylvania’s firearm and ammunition preemption – Firearm Owners Against Crime, et al. v. City of Harrisburg, et al. – he issued a monumental decision on behalf of the entire Commonwealth Court, reversing a prior incorrectly decided case – NRA v. City of Pittsburgh, 999 A.2d 1256 (Pa. Cmwlth. 2010). Specifically, the decision held that it was “untenable” to require a plaintiff to declare in a complaint that he/she has violated or been prosecuted for an enacted ordinance and that the prior NRA decision, holding that an individual must, to establish standing, either state that he/she is violating the ordinance or is being prosecuted in relation to a violation of an ordinance, “must be overruled.”
As President Judge Brobson is an ardent defender of our constitutional and statutory rights and whom has consistently demonstrated an aptitude for resolving the most difficult and complex cases, there is no question that we need to elect him as our next Pennsylvania Supreme Court Justice. And in that vein, I ask you to vote Kevin Brobson for PA Supreme Court Justice on May 18th.
If you wish to learn more about President Judge Brobson, come out to the Berks County Patriot’s meeting tonight for the candidate forum, and check out his website and his facebook page – Kevin Brobson for PA.
Perhaps most importantly, beyond voting for him in May, if you’re in a position to contribute to his campaign, I am sure he would greatly appreciate your support! Unfortunately we’re at a time in our republic where money controls the outcome of most elections and without your support of President Judge Brobson, we won’t be able to ensure that our rights are here for our grandchildren.