Italian Sons & Daughters of America v. City of Pittsburgh, decided yesterday by the Pennsylvania Commonwealth Court (Judge Patricia A. Mccullough, joined by Judges Renée Cohn Jubelirer, Christine Fizzano Cannon, Ellen Ceisler, Lori A. Dumas, and Stacy Wallace, and with Judge Michael H. Wojcik concurring in the result), reversed a trial court’s decision approving of Pittsburgh’s removal of a Columbus statue from a public park. The trial court had held that the removal didn’t violate the First Amendment, because monuments permanently erected in a park were “government speech,” but the Commonwealth Court concluded that the removal did potentially violate state law:
Here, in its First Amended Complaint, ISDA does not challenge Mayor Peduto’s or the Art Commission’s actions on First Amendment grounds; nor does ISDA contest that the placement of the Statue in Schenley Park constitutes government speech that the City otherwise may regulate, change, or remove as it sees fit. Thus, ISDA does not argue that … government speech principles … are inapplicable. Rather, ISDA argues that Mayor Peduto and the Art Commission, in taking action to remove the Statue, did not comply with applicable provisions of the Charter and Code, violated ISDA’s rights to due process, violated public trust principles, and breached a contract entered into between the City and ISDA’s putative predecessor, the Sons of Columbus.
In issuing its decision, the trial court did not make any findings of fact and did not rule on any of Appellees’ expressly pleaded preliminary objections, including the objection to ISDA’s standing. Instead, the trial court broadly concluded that, because the Statue constitutes government speech, ISDA cannot, as a matter of law, plead a viable claim because the City is free to do with the Statue as it pleases, notwithstanding any local or state-wide legislation or other restrictions to the contrary … [on the view that] “Local ordinances and state laws cannot be used to restrict future government’s speech rights.” ….
[But a]lthough a government generally may determine those views that it will espouse by way of its own speech, it nevertheless may not do so in violation of applicable “law, regulation, or practice.” … The fact that … monuments or pieces of art constitute “government speech” only protects the government from certain First Amendment challenges. It does not, as the trial court here concluded, give government “free reign” to act as it pleases in defiance of the law….
The trial court below did not make any findings or rulings regarding whether Appellees’ actions in seeking to remove the Statue from Schenley Park violated the Charter, the Code, or the Ordinance. It instead dismissed ISDA’s claims on the ground that such procedural irregularities did not matter in light of Summum. The trial court further declined to make any findings or rulings regarding whether the Art Commission’s administrative proceedings were constitutionally adequate or whether ISDA had standing to bring this lawsuit in the first place. The trial court instead cast ISDA’s claims as “procedural arguments at best” and did not analyze them. The trial court further explained that, even if ISDA is correct and Appellees violated the Charter, Code, and/or Ordinance in pursuing the Statue’s removal, the new mayor’s administration is still free to comply, if it wishes to do so. Id. In any event, according to the trial court, ISDA’s claims against Appellees are now moot, and the new mayor’s administration has effectively been granted a “do over.”
[W]e simply cannot agree with the trial court’s conclusions that (1) the Statue’s status as government speech renders Appellees’ actions per se valid, and (2) ISDA’s claims are irrelevant procedural quibbles now mooted by the new mayor’s ability to comply with the law if he so chooses…. We accordingly reverse the trial court’s order dismissing the First Amended Complaint based on the government speech doctrine and remand for further factfinding and decision, as appropriate, on Appellees’ remaining preliminary objections.
Nonetheless, the court upheld the trial judge’s decision not to recuse himself:
[In one of the hearings], and in partial reliance on James W. Loewen’s book Lies My Teacher Told Me, the trial court judge discussed at length his views on, inter alia, historiography, freedom of expression, Christopher Columbus, the post-Civil-War South, and the City’s role in leading the nation on the issue of statue removal….
{Specifically, the trial court explained:
History is often said to be written by the “winners[,”] and our understanding of it as a nation tends to evolve over time as research reveals new understandings and our cultural norms change. Undoubtedly, history as taught to most in the United States has been from a nationalistic and [E]urocentric perspective. Certainly, our national understanding of history is evolving today as evidenced by the statue removal movement occurring all over the United States with respect to Confederate and Union generals, [p]residents, explorers like Christopher Columbus, civil leaders, and here in Pittsburgh, past cultural icons like composer Stephen Foster. My father, a career high school history teacher and lifelong reader of history, taught me at an early age that the commissioning of Confederate general[ ] statues in the Jim Crow [S]outh was part of the “Lost Cause” response to Reconstruction efforts and often [was] intended as [a] symbol of white supremacy, while the federal government’s commissioning of military bases [ ] and battleships commemorating the Confederacy and the placement of Confederate figures in the halls of Congress were at least by some[ ] motivated by an intent to heal the nation. Recently, in July [ ] 2020, Congress voted to remove those same figures from the House of Representatives as our understanding of history has evolved and the statues are no longer deemed appropriate in our contemporary nation trying to heal the issue of racial divide, ultimately inflamed by the killing of George Floyd in Minneapolis.
Open[-]mindedness as a community requires that we listen to each other and weigh the concerns expressed collectively with the sincere intent of trying to understand all sides of an issue. We must also be mindful that freedom of expression can be a double-edged sword. The fate of the Christopher Columbus statue should be determined after all concerns are fully expressed and heard with an intent to reach a common ground that reflects Pittsburgh and its pride in being a diverse and welcoming community. However, this must be done while recognizing the good and bad that comes with statues depicting historical figures. While acknowledging that historical figures are people and necessarily come with heroic qualities along with character flaws, nonetheless, racism, slavery and prejudice must always be condemned and rejected by our city. Discrimination has and continues to exist. Indigenous people and the immigrants who followed have all unfortunately shared that experience, [ ] which should [not] be acceptable to a community striving for better. With this common understanding, I am asking that we strive to reach a consensus in good faith. It is my belief that through conciliation, Pittsburgh will lead the nation on this issue of statue removal vis a vis history and evolving community historical understanding.} …
There is a presumption that Commonwealth judges are “honorable, fair and competent,” and, when confronted with a recusal request, are competent to determine whether they can rule “in an impartial manner, free of personal bias or interest in the outcome.” Our Supreme Court also has recognized that,
[w]hile the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake: that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause…. If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion. This must be so for the security of the bench and the successful administration of justice. Otherwise, unfounded and ofttimes malicious charges made during the trial by bold and unscrupulous advocates might be fatal to a cause, or litigation might be unfairly and improperly held up awaiting the decision of such a question or the assignment of another judge to try the case. If lightly countenanced, such practice might be resorted to, thereby tending to discredit the judicial system. The conscience of the judge alone is brought in question; he should, as far as possible, avoid any feelings of unfairness or hostility to the litigants in a case.
Here, ISDA argues that the trial court judge should have recused himself from presiding over this case because the extensive commentary in the … Order created an appearance of impartiality, bias, and impropriety. More specifically, ISDA argues that the trial court judge’s interpretations of his father’s teaching career, the Lost Cause of the Confederacy, the Jim Crow South, ethnic discrimination, and the City’s exemplary future in leading the nation in statue removal injected extraneous and irrelevant issues into a lawsuit involving straightforward claims asserting that Appellees did not comply with the Charter, Code, and Ordinance. ISDA therefore argues that the trial court abused its discretion in denying the Recusal Motion.
We generally agree with ISDA that the personal commentary in the trial court’s October 30, 2020 Order is irrelevant and extraneous and does not inform the legal analysis of the claims asserted in the First Amended Complaint.
We nevertheless cannot conclude that the trial court’s denial of the Recusal Motion constituted a clear abuse of discretion. To the extent that ISDA claims that the personal nature and irrelevance of the commentary indicates bias, it is the very irrelevance of the bulk of the trial court’s order that requires affirmance on this issue. The issues in this case center on the legislative status of the Ordinance, the procedures in the Charter and Code, if any, that are applicable to public monument removal, and ISDA’s standing to bring this lawsuit. The trial court has yet to rule on any of those issues.
The personal opinions the trial court judge has expressed on subjects immaterial to their resolution do not themselves constitute evidence that, as to the disposition of the actual issues at hand, he will be biased, prejudiced, or unfair to a degree that raises substantial doubt as to his ability to preside impartially. Without such evidence, we must defer to the trial court judge’s own self-assessment that he can, and we trust will, preside over the resolution of this matter in an impartial and judicious manner. Accordingly, we affirm the denial of the Recusal Motion….
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