Thursday, November 15, 2007

dependency - counsel for child - access to child

In the Interest of A.S. - Superior Court - November 15, 2007

http://www.aopc.org/OpPosting/Superior/out/a24014_07.pdf

Trial court improperly dismissed child welfare agency's dependency petition due to the agency's failure to have the child in court to testify. The appellate court held that the dismissel was error where the child's court-appointed counsel never had a chance to meet with the child because of the mother's refusal to give counsel access to the child, despite an order directing the mother to do so.

The trial court did not receive evidence from both sides. The mother violated the child's rights by denying access by counsel and preventing the child "from being heard in any fashion at a hearing regarding her own welfare."

statutes - enactment - legislative procedure - Pa. Constitution

Marcavage v. Rendell - Commonwealth Court - November 15, 2007

http://www.aopc.org/OpPosting/CWealth/out/195MD05_11-15-07.pdf

Article III, sec. 1, of the state constitution provides that “[n]o law shall be passed except by bill, and no bill shall be altered or amended, on its passage through either House, as to change its original purpose.”

This provision is violated by the passage of a bill which began as one criminalizing crop destruction but was amended during the legislative process to become one which punished ethic intimidation.

The relevant test is set out in Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth (PAGE), 877 A.2d 383 (Pa. 2005). This case established a "new two-prong test for determining whether legislation violates Article III, Section 1....First, the Court must consider the legislation's original purpose and compare it to the final purpose to determine whether there has been an alteration or amendment that changed the original purpose....Second, the Court must consider whether the title and contents of the legislation are deceptive in their final form....The challenged legislation must survive both inquiries to pass constitutional muster.

A court must consider a bill's purpose "in reasonably broad terms, so as to provide the General Assembly with full opportunity to amend and even expand a bill, and not run afoul of the constitutional prohibition on an alteration or amendment that changes its original purpose.....[T]he reviewing court should 'hypothesize, based on the text of the statute, as to a reasonably broad original purpose.'”

The court held here that there was no "single unifying purpose" between the original and amended bills, even though both concerned criminal conduct. The bills did "not regulate the same discrete activity" but rather "vastly different activities, albeit under the broad heading of crime." Even looking at the language in "reasonably broad terms," there was a change of purpose from the original to the amended bill, given that the latter had "no nexus to the conduct to which the original legislation was directed...."

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