Attorneys for Equity Forward, Real Alternatives make their arguments in court over open records

By: - March 7, 2022 5:30 pm

The warring factions in a five-year-long legal battle over Pennsylvania’s decision to award tens of millions of dollars in taxpayer money to an anti-abortion group finally had their day in court on Monday.

In oral arguments before Pennsylvania Commonwealth Court, the abortion rights group Equity Forward pressed its case that the public had a right to know how Harrisburg-based Real Alternatives, a “crisis pregnancy” organization that counsels women against abortion, was spending public money.

Real Alternatives, which received more than $30 million in public funding between 2012 and 2017, argued that an earlier finding by Pennsylvania’s Office of Open Records that some of its records are not public was the correct one, and that its contracts with service providers are not subject to public scrutiny.

Addressing the court first was Terry Lee Mutchler, legal counsel for Mary Alice Carter, senior advisor to Equity Forward.

In her opening statement, Mutchler argued that Equity Forward is seeking greater transparency from Real Alternatives, a state contractor, to better understand how Pennsylvania taxpayer dollars are being spent by the entity. 

Equity Forward is appealing an earlier decision handed down by the Pennsylvania Office of Open Records (OOR), rejecting its request for secondary agreements between Real Alternatives and its service providers. 

“We don’t know what we don’t know,” Mutchler, of Philadelphia-based Obermayer Rebmann Maxwell & Hippel LLP said, adding that it was Equity Forward’s position that those records should be accessible to the public because of Real Alternatives’ status as a contractor of the Department of Human Services. 

Counsel for Real Alternatives disagreed, arguing that OOR’s interpretation of Pennsylvania’s Right-to-Know law was correct. 

Rebuking Mutchler’s claim that the documents are commonwealth business and should therefore be subject to public scrutiny, Joshua Voss, attorney for Real Alternatives, said the open records’ office decision should stand and that what happens between Real Alternatives and its providers is private and not part of its 2012-2017 agreement with the commonwealth.

“This is not DHS’s money,” Voss, of Philadelphia-based Kleinbard LLC, told the court, noting that service providers are free to use state grant funding however they please, including by giving it back to Real Alternatives, if they choose.

Following the brief oral arguments, Equity Forward Director Molly Bangs weighed in on the case via a statement to the Capital-Star. 

“For nearly five years, Equity Forward has sought basic information on how Real Alternatives spends millions of dollars it receives from the state. Real Alternatives has fought us at every turn,” Bangs said. “Today in the Commonwealth Court of Pennsylvania, we made the same simple argument that we have made every day since we filed our Right To Know request 1,624 days ago — taxpayers have a right to know how their money is being spent.”

Bangs argued that “Real Alternatives has a history of running to court to conceal its spending,” pointing out that in 2017, it “tried to stonewall a state auditor investigation that eventually found it had misused more than $800,000 in state funds. The records we are seeking are critical to understanding if Real Alternatives is still engaging in the kickback scheme it was running then.”

Bangs said Equity Forward is “confident that the court will agree that taxpayers deserve greater transparency into how Real Alternatives operates the state-funded Alternatives to Abortion Services Program. People have a right to know if Real Alternatives continues to enrich itself at the expense of families in Pennsylvania.”

Speaking on behalf of Real Alternatives, Voss shared the following statement with the Capital-Star Monday: 

“My client, Real Alternatives, and I are extremely pleased with this morning’s oral argument. There were just two issues before the Court. One, whether private agreements among private parties for the expenditure of private money are records subject to access under the Right-to-Know Law,” Voss said. “And two, whether cost information from Real Alternatives that not even the Department of Human Services received, requested, or used at all in its management of the contract with Real Alternatives is subject to access. The answer to both is no, which we believe the Commonwealth Court understood.

“However, there was a question raised at argument about whether the money at issue with the private agreements was public or private. We wish to be clear on this point: the money is and always has been private money, and all public money received by Real Alternatives has been appropriately accounted for and documented,” Voss continued. 

“The service providers who voluntarily gave money to Real Alternatives under private agreements did so because they share Real Alternatives’ belief in the value of alternatives to abortion,” Voss concluded, arguing that ”these particular contracts have nothing whatsoever to do with the contract that Real Alternatives has with the Commonwealth of Pennsylvania. As a result, they are not public records that Equity Forward is entitled to obtain through the Right-to-Know Law.”

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Cassie Miller
Cassie Miller

A native Pennsylvanian, Cassie Miller worked for various publications across the Midstate before joining the team at the Pennsylvania Capital-Star. In her previous roles, she has covered everything from local sports to the financial services industry.