3-judge Panel Assigned for Constitutional Challenge of Divorce

By Bai Macfarlane.
A 3-judge panel has been assigned in Pennsylvania’s Superior Court to decide an appeal challenging the constitutionality of Pennsylvania’s unilateral no-fault divorce statute: Judges Mary Bowes (Republican), Jacqueline Shogan (Republican), and Gene Strassburger Judge (Democrat).

Ryan Pankoe

The appeal is by Ryan Pankoe, who was left by his wife that filed a plea for unilateral no-fault divorce. He is the chief of an ambulance company, an eagle scout, and a scout leader. Ryan and his wife have two sons and Ryan says he is defending his fundamental rights and hopes to also help others (watch video of Ryan).

When a state law impairs upon fundamental rights, and an aggrieved party makes a complaint that the statute is unconstitutional, the burden of proof is on the state to prove why the statute serves the public interest and that the law is necessary to serve that interest (i.e. the strict scrutiny standard). When a statute is unconstitutional, the court has no subject matter jurisdiction and the case must be dismissed. Marriage, children, and property are fundamental rights. In his appeal, Ryan argues in favor of three questions (July 15, 2019 appeal, page 6, see listed below):

1. Whether 23 Pa. C.S.A. § 3301 (d) is hostile toward religious views that oppose the particular state-sponsored and established ideological orthodoxy, in violation of the establishment clause. (Preferred Answer: YES)
2. Whether 23 Pa. C.S.A. § 3301 (d) eliminates the right of defense against the specified statutory cause of action for divorce, in violation of due process. (Preferred Answer: YES)
3. Whether 23 Pa. C.S.A. § 3301 (d) alters the mode of divorce proceedings from judicial proceedings to ministerial proceedings, in violation of due process. (Preferred Answer: YES)

In Ryan’s summary (pg. 11-13), he shows that the divorce statute is based on the Plaintiff’s viewpoint, and not based on the behavior of the defendant.  Furthermore, the defendant’s Christian viewpoint that his marriage is not irretrievably broken is never given preference over the plaintiff’s viewpoint.

When a judge is forced by the statue to exercise no discretion because the statute itself dictates a predetermined outcome in every case, the judge is not acting in a judicial capacity, but only in a ministerial capacity and this is a violation of separation of powers and due process. The Pennsylvania no-fault divorce statute prescribes the granting of divorce after a plaintiff has been separated from the defendant for two years if she says she feels her marriage is irretrievably broken.  In Ryan’s appeal, he explained how his wife’s lawyer argued that the divorce decree was not a ministerial act because of the statutory requirement of living separated and apart. However, Ryan asserts that the 2-year separation does not invoke judicial exercise of judgment, but is rather a clerical determination.

Ryan’s wife’s lawyer on August 6 submitted her Appellee’s Brief. Much text was spent discussing Ryan’s Christian beliefs which are irrelevant to the appeal. Ryan’s point is that the statute’s requirement for the plaintiff to assert, “Our marriage is irretrievably broken” is based on the private belief and viewpoint of the plaintiff, not the conduct of the defendant. In addition, the wife’s lawyer said that “The Supreme Court of the United States does not require the establishment of fault, or ‘legal liability’.”  In his reply brief submitted on August 20, Ryan responded “This is a patently false and misleading statement from which all other of the opposition’s false and misleading statements proceed.”

Ryan repeatedly says that there is no rightful means of invoking judicial action unless there is some duty or obligation of the defendant which the defendant is accused of neglecting to uphold. In Pennsylvania no-fault divorce, it is obviously impossible for a defendant to have the duty over the plaintiff’s free-will choice to leave their home.

Other appeals against no-fault divorce were listed in Ryan’s reply to his wife’s lawyer. Ryan commented on them to further his own arguments that there is something fundamentally unconstitutional about the statutes themselves.

When Ryan sent his reply brief to the appellate court, he also asked that any judge who was ever a divorce lawyer recuse himself/herself (see letter below).

Ryan is waiting for the 3-judge panel to issue their judgement. If they rule against him, he can appeal the Pennsylvania Supreme Court. He’d first, however, have to ask for his appeal to be heard en banc by nine judges in the Superior Court of appeals.

COURT EVENTS

Sept. 27, 2017 – Wife’s Complaint for Divorce
Nov. 27, 2018 – Hearing before “Master in Divorce”, attorney John Roberts
Jan. 18, 2019 – Ryan’s Motion for Summary Judgement
Feb. 15, 2019 – Plaintiff-wife’s Response
Feb. 22, 2019 – Ryan’s Reply
Feb. 27, 2019 – Ryan’s oral argument for Judge Varricchio
March 25, 2019 – Judge Varricciio’s Divorce Decree
March 25, 2019 – Judge Varricciio’s Memorandum Opinion deny Summary Judgment
April 2, 2019 – Ryan’s Notice of Appeal (less attachments)
April 24, 2019 – Ryan’s Concise Statement Reasons for appeal
May 2, 2019 – Notice to PA Attorney General
May 23, 2019 – Trial Court Opinion responding to concise statement
July 15, 2019 – Ryan’s Appellant Brief (65 pages with attachments)
Aug. 6, 2019 – Wife’s Appellee Brief  from wife’s lawyer
Aug. 20, 2019 – Ryan’s Appellant Reply Brief
Aug. 20, 2019 – Ryan ask no judge be allowed who ever was a divorce lawyer