A pair of senior Lackawanna County judges were persuaded by artificial intelligence generated in response to a flawed and leading prompt about home rule charters when they ruled in May that the county’s charter controls the process of replacing former Commissioner Matt McGloin, attorneys for Commissioner Bill Gaughan and the county allege in court documents.
With Senior Judges Carmen D. Minora and Vito P. Geroulo in the majority and Senior Judge Robert A. Mazzoni dissenting, the judicial panel ruled May 22 that the county’s Home Rule Charter supersedes a state rule of judicial administration that would have removed the Lackawanna County Democratic Committee from the process of replacing McGloin, a Democrat who left office in late February. Gaughan and the county, co-petitioners to litigation challenging the charter process, are appealing that and other elements of the ruling.
While far from the only thing they considered — Minora and Geroulo’s majority opinion is rife with legal analysis and references to statutes and caselaw — the senior judges made no secret of the fact that they used artificial intelligence in enumerating the merits of home rule charter government. The AI-references are included in a section of the broader majority ruling.
“This court considered the new technologies when formulating this opinion and consulted with AI research, to determine ‘What makes a home rule charter government … so special and desirable,’” they wrote, noting the search was conducted May 9 using Google’s Gemini generative AI chatbot.
The AI identified local control and flexibility as advantages of home rule charter government, noting at one point that “home rule in Pennsylvania empowers local communities to shape their own governance, leading to a system which is potentially more efficient, responsive, and tailored to the needs of its residents.”
The ruling includes examples that weren’t generated by AI of cases demonstrating the flexibility and enhanced local control provided by home rule charters.
“While this court understands that new technologies are fast approaching in the legal field, it is still of the utmost importance to consider the law surrounding home rule charters with actual Pennsylvania (statutes), constitutional implications and case law authorities,” the judges wrote.
But attorneys for Gaughan and the county recently raised the AI issue in a brief filed in state Commonwealth Court, where their appeal is pending, and in an application asking the state Supreme Court to invoke its King’s Bench power and bypass the lower appellate courts to hear the appeal. They maintain the judicial panel’s majority erred in ruling for the supremacy of the charter, reiterating arguments in recent filings that the charter process violates Pennsylvania Rule of Judicial Administration 1908.
That rule, adopted by the state Supreme Court in 2019, says the county court alone “shall receive applications from any interested candidates for the position.” It’s application would effectively remove the county Democratic Committee from the replacement process.
“Indeed, the panel majority’s reliance on artificial intelligence as a justification for departing from the Pennsylvania Constitution’s express requirements and the Supreme Court Rule of Judicial Administration alone warrants reversal,” Gaughan and the county’s Commonwealth Court-filed brief notes.
Their attorneys contend in that filing and the King’s Bench application to the state Supreme Court that the prompt used to generate the AI answer was “deeply flawed,” seeking only the positive attributes of home rule government. It was not “neutral, balanced or intended to generate an AI analysis of the primacy of a home rule provision that conflicts with a uniform rule of judicial administration adopted by a Supreme Court pursuant to its Constitutional authority,” a footnote in the brief reads.
They also claim the judges’ use of AI runs counter to a disclaimer published by Google that users shouldn’t rely on the Gemini chatbot’s services for legal or other professional advice.
“Contrary to the panel majority’s reasoning, home rule and the response to a deeply flawed and leading prompt fed to an artificial intelligence platform do not excuse compliance with the Constitution or state law,” Gaughan and the county’s attorneys contend in the filing.
Reached this week, Gaughan declined to comment on the AI issue beyond the objections raised in the court documents. The county court also declined to comment.
“Please be advised that the Court will not comment on a case that is pending or impending in any Court,” county Court Administrator Frank Castellano said in an email.
Assuming it isn’t overturned on appeal, Minora and Geroulo’s majority ruling orders the commissioned county court judges to “follow the directives of the Home Rule Charter” when ultimately voting to fill McGloin’s vacant seat. The charter tasks the county Democratic Committee with submitting the names of three potential appointees for consideration by the county court judges.
That process played out controversially in late February, when the committee held a closed-door vote to submit former county Economic Development Director Brenda Sacco, Olyphant Borough Council President James Baldan and Scranton School Director Robert J. Casey as potential appointees.
Gaughan has repeatedly objected to how the committee went about advancing those three potential appointees, calling the process opaque and politically tainted.
In his dissent to the judicial panel’s majority decision, Senior Judge Mazzoni disagreed with his colleagues that the charter controls the replacement process, noting the “clear and unambiguous language in Rule 1908 … makes its application in this case compelling.”
“As noted in the language of Rule 1908, the application of this Rule makes the selection of a candidate more transparent and, of course, more diverse by creating a larger pool of worthy applicants,” Mazzoni wrote. “A result which truly serves the ends of justice.”
But Minora and Geroulo noted that the logic behind home rule charters is to provide municipalities that adopt them “the power at the local level to govern at the local level.”
They held that Gaughan and the county’s reading of Rule 1908 “simply defies logic and means every time the court issues a new rule, be it administrative or procedural, HRC communities better hold their breath lest their constitutionally guaranteed right to self-rule be consumed … by a pac-man like anonymous rule making committee unanswerable to any public input.”
The state Supreme Court has yet to indicate whether it will invoke its King’s Bench power to hear Gaughan and the county’s appeal. If it doesn’t, the appeal will continue in Commonwealth Court.