07.30.12

Nevin Mindlin Requests to be a Friend of the Court

by Tara Leo Auchey

The term amicus curiae means “friend of the court.” When such a friend volunteers an opinion on the matter before the court, then it is known as an amicus brief, and that’s what City of Harrisburg resident Nevin Mindlin did.

Filed in Commonwealth Court on Friday, July 27th, Mindlin’s amicus brief details support for Harrisburg City Council in the issue of Council’s refusal to follow Receiver William Lynch’s order to raise the Earned Income Tax (EIT) on City residents. This refusal has resulted in the Receiver filing a Writ of Mandamus petition asking the Court to force City Council to do as he’s ordered. After a postponement upon City Council’s request to find legal counsel and much to the State’s vexation, the hearing has been scheduled for Tuesday, August 14th.

Mindlin argues that City Council’s nonacceptance of the Receiver’s Recovery Plan is reasonable. He refers to the lack of specificity in the Plan in terms of how much the EIT should be raised. The revenue-generating initiative in question states: Increase the Earned Income Tax rate as required to eliminate operating deficits. Although it is mentioned that the Plan’s numbers are based on assumptions of a 1% EIT increase per year, the initiative itself does not outline exactly how much the EIT should be raised. It merely determines it should be raised to generate much needed revenue. Mindlin’s position is that per the former Receiver’s presentation, this Court-approved Receiver’s Recovery Plan is preliminary. Thus, this lack of specificity indicates a lack of a comprehensive plan as mandated by the statute, which in return means the Plan does not mean the statutory regulations and thereby cannot be enforced as is. The setup of this Recovery Plan legally requires the current Receiver to come to the Court to make specific adjustments for it to be ratified comprehensive. Basically, Mindlin claims the Receiver cannot propose modifications without the Court’s approval and certainly cannot issue orders based on disallowed modifications.

Mindlin also argues that the Receiver does not have the authority to order Harrisburg City Council as a legislative body to raise taxes. Citing, “no taxation without representation,” he declares the legislative body of the City should be granted “the right to vote free of coercion.”

Throughout his brief not only does Mindlin refer to specific parts of the amended Act 47 statute, but also to passages from the Pennsylvania Constitution. He attempts to convince the Court that the approach being imposed upon by the State will result in an overtaxed city stripped of its assets with no other choice but to file bankruptcy in the end.

It is up to the Court to permit an amicus curiae to participate in the proceedings. In response to his filing, the Judge will soon issue an Order granting or denying Nevin Mindlin’s request to be a friend of the Court.

Petition and Pleading for Amicus Curiae