Stilp, et al. v Commonwealth of Pennsylvania – Part 2

Stilp, et al. v Commonwealth of Pennsylvania – Part 2

Continued from Part 1

SUMMARY OF ARGUMENT

The General Assembly, in its enactment of the Act of July 7, 2005, P.L., 201, No. 44 (“Act 44”), has engaged in an egregious and flagrant violation of what one legal commentator has aptly called a “due process of lawmaking.” The core of this due process is contained in Article III of the Pennsylvania Constitution. Unfortunately, this denial of due process of lawmaking has occurred repeatedly in recent years. Predictably, it has led to a critical loss of confidence by the citizenry of this state in the integrity of the legislative process and, indeed, in the integrity of the Commonwealth's governmental institutions.
The purpose of Article III, as this Court has stated numerous times, is to maintain trust and confidence in the legislative process as open and transparent. The drafting of legislation in secret, with no notice or opportunity for hearings, no review and refinement and no correction after due deliberation by members of the Legislature, is an invitation to distrust and lack of confidence. Indeed, the secret drafting of major legislation behind closed doors and the “unveiling” of such legislation at the last possible moment, prevents legislators from even reading what they are voting on, let alone deliberating in the fashion contemplated by the drafters of the Constitution. Further, such a practice deprives citizens of their inherent right of participation in the lawmaking process that affects every aspect of their lives. When the legislative and the executive branch choose to ignore the fundamental elements of the due process of lawmaking, then the courts should reestablish compliance with these constitutional requirements.

In this case, the conference committee did not, in good faith, reconcile differences in the House and Senate versions of H.B. 1521. On the contrary, in bad faith, it inserted an entirely new bill into H.B. 1521, precisely to avoid the requirements of Article III. The analysis of the Court in Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323 (Pa. 1986), which permitted such a circumvention of the plain requirements of Article III, must be reconsidered and Act 44 should be struck down in its entirety, as enacted in clear violation of Article III, sections 1-4 of the Pennsylvania Constitution. In addition, it is necessary for this Court to declare invalid the system of unvouchered expenses contained in Act 44 (and approved in Consumer Party) as a blatant and deliberate attempt to circumvent the clear words and the unmistakable purpose of Article II, section 8, of the Pennsylvania Constitution.
Finally, the Court should follow its precedents and affirm the standing of Petitioner in this matter, since he meets all of the criteria required in this Court’s previous articulation of the circumstances permitting taxpayer standing. Further, it should not and need not address any issues relating to Article V, section 16(a) of the Pennsylvania Constitution. In light of the unconstitutionality of Act 44 in its entirety, this matter, far from being moot, needs to be resolved in order to properly dispose of Herron v. Commonwealth, et al., No. 163 EM 2005.
ARGUMENT

I. PETITIONER STILP HAS STANDING TO BRING THIS ACTION CHALLENGING THE CONSTITUTIONALITY OF THE ACT OF JULY 7, 2005, P.L. 201, No. 44 (“ACT 44”) UNDER THE ESTABLISHED CRITERIA THAT HAS BEEN DEVELOPED BY THIS COURT.

This Court, in Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979), laid out criteria for permitting taxpayer standing to challenge the constitutionality of legislation, even when the taxpayer could not allege harm distinct from that of the general public. Biester, 487 Pa. at 444, 409 A.2d 852. The Court in Biester noted that such a challenge would be permitted, inter alia, where judicial review of the legislation would otherwise not occur. That possibility of the legislation escaping review is most likely “when those directly and immediately affected by the complained of expenditures are beneficially affected, as opposed to adversely affected.” The Court further stated that "[c]onsideration must be given to other factors such as, for example, the appropriateness of judicial relief, the availability of redress through other channels, or the existence of other persons better situated to assist the claim. Biester, 487 Pa. at 446, 409 A.2d at 852.
In this case, we have a situation that meets these criteria fully. Certainly, it is most unlikely that those beneficially affected by Act 44 will challenge it. Further, given the fact that Act 44 increases compensation for high public officials in all three branches of state government, it is even less likely that those directly and beneficially affected would challenge Act 44. But the constitutional issues raised by Petitioner's action are of the highest importance to our democratic institutions and to the public's confidence in them, as discussed below. Therefore, the Court should follow its established criteria and find that petitioner meets all the requirements for standing in this case:
1. The governmental action would otherwise go unchallenged;
2. Those directly and immediately affected by the complained of expenditures are beneficially affected and are not inclined to challenge the action;
3. Judicial relief is appropriate;
4. Redress through other channels is unavailable; and,
5. No other persons are better situated to assert the claim.
Consumer Party of Pennsylvania v. Commonwealth, 510, Pa. 158, 170, 507 A.2d 323, 329 (Pa.1986). See also, e.g., League of Women Voters of Pennsylvania, __Pa. Cmwlth. Ct. ___, 692 A.2d 263, 268-269, (Pa. Cmwlth. Ct. 1997); Sprague v. Casey, 520 Pa. 38, 44, 520 A.2d 184, 187.
II. THE GENERAL ASSEMBLY'S ADOPTION OF ACT 44 VIOLATED ARTICLE III, SECTIONS 1-4, OF THE PENNSYLVANIA CONSTITUTION AND CONSEQUENTLY ACT 44 MUST BE STRUCK DOWN IN ITS ENTIRETY.

A. Both the language and the purpose of Article III, sections 1-4, of the Pennsylvania Constitution are clear and free from ambiguity. They were enacted specifically to eliminate practices that have undermined the citizens' confidence in the Legislature. These provisions must be given full respect and must be scrupulously adhered to, as they are part of the basic law of this Commonwealth and reflect important policies relating to the proper deliberative process in lawmaking.

The provisions of Article III of the Pennsylvania Constitution “… were added to the Pennsylvania Constitution to stem legislative abuses and should be read together.” Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. Pitt. L. Rev. 797, 812 (1987). Together, these provisions guarantee to our citizens, what has been aptly called by Justice Hans A. Linde of Oregon a “due process of lawmaking.” Linde, Due Process of Lawmaking, 55 Neb. L. Rev.197 (1976), quoted in Williams, supra, 48 U. Pitt. L. Rev. 797, 826.
These guarantees, dating back to the 19th century, have been reenacted in our modern Pennsylvania Constitution of 1968, and, far from reflecting technical or archaic requirements, continue to be deserving of respect and compliance. See Williams, supra, 48 U. Pitt. L. Rev. 797, 800. Ironically, the wisdom and importance of these provisions is being rediscovered and reemphasized as the result of recent major scandals in our country. See, e.g., Norman Ornstein and Thomas E. Mann, If You Give a Congressman a Cookie, New York Times, January 19, 2006. (“Omnibus bills, sometimes thousands of pages long, are brought to the floor with no notice, let alone the 72 hours the rules require.”) The drafters of our Pennsylvania Constitution wisely and presciently laid out clearly and succinctly how to avoid the abuses that were common in their day, and which, unfortunately, have resurfaced in recent years as strict adherence to legislative due process has declined. It is necessary now to rediscover and reemphasize this wisdom and reestablish the central importance of the due process of lawmaking.
Article III, sections 1-4 of the Pennsylvania Constitution provide:
Section 1. No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, ask to change its original purpose.

Section 2. No bill shall be considered unless referred to a committee, printed for the use of the members and returned therefrom.

Section 3. No bill shall be passed, containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or part thereof.

Section 4. Every bill shall be considered on three different days in each House. All amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill, and before the final vote is taken, upon written request addressed to the presiding officer of either House by at least twenty-five percent of the members elected to that House, any bill shall be read at length in that House. No bill shall become a law, unless on its final passage, the vote is taken by yeas and nays, the names of the persons voting for and against it are entered on the Journal, and a majority of the members elected to each House is recorded thereon as voting in its favor.

This Court has recently exhaustively reviewed the historical development and the purpose of these provisions of Article III (and section 3, in particular) in City of Philadelphia v. Commonwealth, 575 Pa. 542, 572-3, 838 A.2d 566, 585-586 (2003). Summing up its review the Court stated:
Historically, procedural limitations such as those contained in Article III, section 3 did not appear in the first state constitutions. Instead, they were adopted throughout the 19th century in response to perceived state legislative abuses. One observer during that era noted that “[o]ne of the most marked features of all recent State constitutions is the distrust shown of the Legislature.” Last-minute consideration of important measures, log rolling, mixing substantive provisions in omnibus bills, low visibility and hasty enactment of important, and sometimes corrupt, legislation, and the attachment of unrelated provisions to bills in the amendment process – to name a few of these abuses – led to the adoption of constitutional provisions restricting the legislative process. These constitutional provisions seek generally to require a more open and deliberative state legislative process, one that addresses the merits of legislative proposals in an orderly and rational manner.

Williams, State Constitutional Limits on Legislative Procedure, at 798 (quoting Eaton, Recent State Constitutions, 6 Harv. L. Rev. 109, 109 (1892)). Consistent with this background, the Constitution plainly establishes limitations on the Legislature's discretion in this area.

575 Pa. at 578-579, 838 A.2d at 588-589.
Amici assert that this summary is applicable to Article III, sections 1-4 generally, and has been so recognized by this Court. See, e.g., Pennsylvania AFL-CIO, ex rel. George v. Commonwealth, 563 Pa. 108, 119, 757 A.2d 917, 923 (2000) quoted in City of Philadelphia v. Commonwealth, supra, 579 Pa. 542, 573, 838 A.2d 566, 585. “Article III's general purpose is ‘to place restraints on the legislative process and encourage an open, deliberative and accountable government.’” See also, Williams, State Constitutional Limits on Legislative Compliance and Judicial Enforcement, 48 U. Pitt. L. Rev. 797, 810-811:
Legislative abuses led to the specific limitations on legislative procedure inserted into the Pennsylvania Constitution in 1874. [FN. 57]. The call for a Constitutional Convention, carried by almost a five to one popular vote in 1872. R. Branning, Pennsylvania Constitutional Development 56 (1960). The Pennsylvania Constitution of 1874 ...was drafted in an atmosphere of extreme distrust of the legislative body.... It was the product of a convention, whose prevailing mood was one of reform... and, overshadowing all else, reform of legislation to illuminate the evil practices that had crept into the legislative process. Legislative reform was truly the dominant motif of the convention, and that purpose is woven into the very fabric of the Constitution. Id. at 37. See also Russ, The Origin of the Ban on Special Legislation and the Constitution of 1874, 11 Pa. Hist. 260 (1944); Dickson, supra, note 18, at 25-34. The major focus of the 1873 Constitutional Convention was on the legislative branch. R. Woodside, Pennsylvania, Constitutional Law 578 (1985).]
As Justice John Dean observed in 1893 in Perkins v. Philadelphia, "that convention, direct from the people, composed of the ablest and most experienced citizens of the Commonwealth, framed this Article 3 on legislation. Assuming, what was the settled law, that the General Assembly had all legislative power not expressly withheld from it in the organic law, they set about embodying in that law prohibitions which should in the future effectually prevent the evils the people complained of. Article 3 is almost wholly prohibitory….

Amici respectfully represent that the legislative process used in enacting Act 44 violates the express language and clear purpose of Article III, sections 1-4. In order to remedy this violation, however, Amici urge this Court to reconsider its analysis in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa. 1986). The analysis in that case has contributed to the apparent belief in the General Assembly that the provisions of Article III are mere technicalities to be circumvented, rather than core constitutional provisions guaranteeing due process of lawmaking in every instance to all the citizens of the Commonwealth. The instant case presents this Court with the opportunity to correct such misapprehensions and to simplify and clarify its future review of any challenges to legislation based on bad faith violations of Article III.

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