Stilp, et al. v Commonwealth of Pennsylvania – Part 3

Stilp, et al. v Commonwealth of Pennsylvania – Part 3

Continued from Part 2


B. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa. 1986) and the cases following Consumer Party failed to properly apply the provisions of Article III of the Pennsylvania Constitution to a “sham legislative process.” This error must now be rectified.

We have seen above that Article III of the Pennsylvania Constitution represents the drafters' effort to articulate a core “due process of lawmaking” to be followed by the Legislature in our state. The essence of this due process of lawmaking is essentially the same as the requirement of “due process of law” so familiar to lawyers and judges. This essence has been described in the judicial context as adequate notice and an opportunity to be heard in a matter affecting a person's life, liberty or property. See, e.g., Hilkmann v. Hilkmann, 579 Pa. 568, 583, 858 A.2d 58, 71: “...formal notice and an opportunity to be heard provide ‘the central meaning of procedural due process’ in the United States. Furntes v. Shevey, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972).” (Chief Justice Cappy concurring)
Similarly, Article III requires a formal procedure to assure openness and fairness to all concerned and to protect the citizenry from “stealth legislation” as discussed above. See, City of Philadelphia v. Commonwealth, 575 Pa. 542, 555, 838 A.2d 566, 575. Thus, the requirements in section 1 and section 3 of Article III that a formal bill be introduced on one subject with a proper title and that it not be altered or amended to “change its original purpose” essentially goes to the issue of notice. Section 2, referring to an appropriate committee, goes essentially to the issue of proper review and deliberation (similar to hearing in the judicial context) as does section 4 on proper review, consideration and deliberation by the full bodies of the General Assembly.
The critical inquiry for a court, therefore, in reviewing a complaint of violation of Article III, should be whether, in bad faith, this essence of due process of lawmaking has been disregarded by the General Assembly. Professor Bruce Ledewitz of the Duquesne University Law School has suggested such an approach, Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq. L. Rev. 409 (1994). We urge this Court to adopt this approach and overrule the faulty analysis in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa.1986). The Ledewitz approach would protect the General Assembly from undue judicial interference in the process of adoption of legislation, except when an egregious and flagrant violation of Article III, implicating the core of the due process of lawmaking, occurs, as it did in this case and in Consumer Party, supra.
Professor Ledewitz' analysis of Consumer Party, supra, and the passage of the Public Official Compensation Act of 1983, is exactly on point in our analysis of the essentially identical process used in the passage of Act 44. He concluded that the legislative process was a “sham” where, at the last possible moment, an entirely new bill (dealing with compensation) was substituted by a conference committee in “bad faith” for a bill on county vacancies. The original bill on county vacancies was introduced with an appropriate title, referred to committee, reported out and passed by both houses. Professor Ledewitz suggests that in such a situation we must look at the reality of what occurred, rather than creating a fiction, as, unfortunately, Chief Justice Nix did by treating the last-minute substitution of an entirely new bill on compensation as an “amendment” to the original bill on county vacancies. Certainly, in reality, it was no such thing.

This novel procedure of taking a county vacancy bill and transforming it into a pay raise was obviously done to avoid the normal procedures of lawmaking. Committees, readings, voting and so forth take time. For a pay raise, time – during the passage of which the talk-show hosts whip up opposition – can be fatal. Thus, the new bill was injected into the old shell.

******

Chief Justice Nix’ opinion for the Court essentially treated Senate Bill 270 as if it had been a real bill that was sent to conference committee and emerged heavily amended, rather than treating Senate Bill 270 as the new bill that it was. The Court concluded that, since conference committees are designed to hammer out differences, Article III, section 1’s prohibition of material alteration or amendment could not be applied to a bill that emerged from such a consensus building process.

This concern about the conference committees rings pretty hollow in a situation in which a totally new bill is inserted into an old Senate Bill number. In fact, application of Article III, section 1 to the entire lawmaking process, including the conference committee, need not interfere with any effort to hammer out consensus because section 1 only prohibits change in a bill’s “original purpose.” Conference committees do not make changes in the original purpose of a bill. Or, at least, the justices could interpret the phrase “original purpose” with flexibility so as not to interfere with such conferences or with the amendment process. The only context in which Article III, section 1 need block legislative action is a bad faith substitution of the very sort that occurred in Consumer Party. Ledewitz, supra, 32 Duq. L. Rev. 409, 439-441. (Emphasis added) (footnotes omitted)

Amici respectfully submit that Professor Ledewitz has captured the essence of the problem in Consumer Party, supra, which must be remedied in this case by the Court. The compensation legislation enacted as Act 44 was drafted in secret, behind closed doors and never subjected to the notice or deliberation requirements of Article III. The “real” bill, the one unveiled at the last possible moment in the middle of the night, was never subjected to rigorous review and debate in committee nor on three different days in each house. See Ledewitz, supra, 32 Duq. L. Rev. 409, 440. Furthermore, the original bill merely putting a ceiling on executive compensation was certainly “altered” so “as to change its original purpose.” Id. In reality, there were violations of all of the first four sections of Article III of the Constitution. Furthermore, the failure to follow these requirements led eventually to the unprecedented repeal of Act 44 by Act 72.
It is simply inconceivable that this debacle could have or would have occurred had the public been given adequate notice of what became Act 44 and adequate opportunity to weigh in on its merits or demerits. To say that the public was on notice that legislative leaders were considering a compensation bill is entirely beside the point. Under the Constitution, the public has a right to know the precise contents of any piece of legislation and the right to expect that the procedural requirements involving review, consideration, deliberation, revision, debate and thoughtful and considered decision-making will all be followed to honor the letter and the spirit of Article III.[1] Certainly, the temptation to circumvent Article III is always there, but the eventual harm to the integrity of our governmental institutions is substantial.
Therefore, Amici respectfully request this Court to substitute the workable “good faith” analysis suggested by Professor Ledewitz for the analysis employed in Consumer Party, supra, and the cases following Consumer Party, which has proved to be unworkable and in error. Such an analysis must lead to the declaration that Act 44 is unconstitutional in its entirety.[2]
III. THE SYSTEM OF UNVOUCHERED EXPENSES PROVIDED FOR IN ACT 44 VIOLATES THE PENNSYLVANIA CONSTITUTION. ON THIS ISSUE AS WELL, THIS COURT SHOULD RECONSIDER AND OVERRULE ITS DECISION IN CONSUMER PARTY OF PENNSYLVANIA v. COMMONWEALTH, 510 Pa. 158, 507 A.2d 323 (Pa. 1986).

Article III, Section 8 of the Pennsylvania Constitution provides:

The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, received any increase in salary or mileage, under any law passed during such term.

The Court's analysis of the issue of unvouchered expenses in Consumer Party, supra, 510 Pa. at 184-186, 507 A.2d at 336-337, is most unfortunate. The analysis is in error, and it has greatly contributed to the atmosphere of distrust and lack of confidence by the public in reaction to an abuse that flies in the face of the clear meaning and purpose of this constitutional provision.
In the analysis by Chief Justice Nix, there was again a willingness to accept a fiction – i.e., that calling a payment an “expense” allowance makes it such. But in Consumer Party, as here, it was quite clear that the members of the General Assembly are reimbursed for actual incurred expenses in the course of their official business. See R. 234a – 235a and 243a – 244a. Further, the amount of increase in the “unvouchered expenses” did not reduce or replace the amount of actual expenses reimbursed to legislators. In addition, the amount of increase is exactly equal to the amount of the salary increases scheduled to take effect upon the expiration of the terms of legislators presently serving in the General Assembly. R. 224a – 225a. As noted by Professor Ledewitz in discussing Consumer Party:

Although not related to the judicial pay raise, the Court's approval of the $10,000 increase in unvouchered expense allowances that apply to part of the State Senate was even more outlandish than upholding the bill as a whole. Legislators may not receive an increase in salary and mileage during the term in which they were elected. Pa. Const. Art. II, sec.8. Thus, State Senators elected in 1982 should simply have waited until their terms expired before obtaining the $10,000 pay increase. Because these senators were too greedy to wait for the end of their terms, the bill was written so as to give these senators a $10,000 increase in their unvouchered expense allowance until the end of their terms. After the end of the term, the expense account increase was to disappear and become a $10,000 increase in salary. Chief Justice Nix wrote, “[a]ppellants utterly failed to make any showing that the expense allowance is a sham.” Consumer Party, 507 A.2d at 338. No showing should have been necessary. Res ipsa loquitur.

Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq. L. Rev. 409, FN. 200 (1994). Cf. also 26 U.S.C. sec.274, 26 C.F.R. sec. 1.62-2 © (4).

(While Amici strongly agree with the above quoted analysis by Professor Ledewitz that the facts speak for themselves and lead to only one logical conclusion, it should be pointed out that Petitioner should be permitted to prove on the record, if deemed necessary by this Court in exercising its plenary jurisdiction, that the “unvouchered expenses” are, in fact, not paid for actual business expenses, which are fully reimbursed. They are, on the contrary, regular income or “salary,” that has simply been given another name.)
Therefore, Amici respectfully request that this Court correct its error in Consumer Party and clarify that the device of unvouchered expenses is unconstitutionally improper as an obvious circumvention of the Pennsylvania Constitution, Article II, Section 8.

IV. BECAUSE ACT 44 IS UNCONSTITUTIONAL IN ITS ENTIRETY, NO ISSUE ARISES UNDER ARTICLE V, SECTION 16(a) OF THE PENNSYLVANIA CONSTITUTION. FURTHER, THE NON-SEVERABILITY PROVISION IN THE STATUTE IS WITHIN THE LEGISLATURE’S AUTHORITY AND DISCRETION AND MAKES THE ENTIRE ACT UNCONSTITUTIONAL, IF ANY PORTION OF ACT 44 IS DEEMED UNCONSTITUTIONAL. THEREFORE, NO ISSUE ARISES UNDER ARTICLE V OF THE PENNSYLVANIA CONSTITUTION IN THAT CIRCUMSTANCE AS WELL. ONLY IF ACT 44 IS CONSTITUTIONAL IN ALL ITS PROVISIONS, DOES THE ISSUE OF ITS REPEAL AND APPLICABILITY TO THE JUDICIARY ARISE.

Amici have presented the reasons above why Act 44 must be deemed to be unconstitutional in its entirety. Respectfully, we represent that these reasons are compelling. Therefore, no issue under Article V, Section 16 (a) of the Pennsylvania Constitution relating to diminishment of judicial compensation arises, since no lawful increase in compensation was ever effected for any official of the Commonwealth.
Similarly under section 6 of Act 44 “…[i]f any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.” Thus, there simply is no issue under Article V, Section 16 (a) in the event any section of Act 44 is deemed unconstitutional for the same reason: no lawful increase was ever effected for any official of the Commonwealth. (Courts in this jurisdiction have sustained non-severability clauses as an appropriate exercise of discretion by the Legislature, since, without such a clause, the courts will normally favor severability. See Kennedy v. Commonwealth, 119 Pa. Cmwlth. Ct. 24, 546 A.2d 733 (1988). Cf. also, Brookins v. O'Bannon, 550 F. Supp. 30 (E.D. Pa. 1982); Pennsylvania Federation of Teachers v. School District of Philadelphia, 506 Pa. 1961, 484 A.2d 751 (1984). Further, the use of non-severability clauses in this jurisdiction by the Legislature is by no means unique or limited to its use in Act 44.)
Only if Act 44 is constitutional in all its provisions, does an issue under Article V, Section 16(a) arise regarding the constitutionality of its repeal, by Act 72. Such a result we believe would be in error for all the reasons stated above.
V. PETITIONER' S CHALLENGES ARE NOT MOOT.

Petitioner's challenges are not moot for several reasons:
First, this case cannot be deemed moot, since litigation, which litigation assumes the validity of Act 44, is now pending before this Court, namely, Herron v. Commonwealth of Pennsylvania,et al., No.163 EM 2005. As we have seen, only if Act 44 is constitutional in its entirety, is the Herron litigation, relating to the repeal of Act 44, facially viable. Therefore, as long as Herron is on the docket, this case is not moot. Indeed, Herron cannot properly be resolved without a resolution in the instant matter.
Secondly, “...it is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074-75. Certainly, the same principle is valid and should be applicable here.
Finally, this case “... raises an issue of important public interest, an issue which is capable of repetition yet is apt to elude review…” Fiori v. Commonwealth, 543 Pa. 592, 600, 673 A.2d 905, 909, FN. 4 (1995). While Amici do not wish to belabor the obvious, it is critically important that the constitutional issues involved in this case not be deferred. Rather, resolving and clarifying these issues are urgently required.
CONCLUSION
For all the reasons stated above, Amici respectfully request this Court to find Act 44 unconstitutional in its entirety because it is in violation of Article III, sections 1-4 of the Pennsylvania Constitution and to also find the system of unvouchered expenses contained in Act 44 in violation of Article II, section 8 of the Pennsylvania Constitution.


Respectfully submitted,



____________________________________
Mark P. Widoff, Esq.
Attorney I.D. No. 12660
Attorney for Amici Curiae
Timothy W. Potts
Russ Diamond, on Behalf of
PA Clean Sweep, Inc.
Eric Epstein, Coordinator,
on Behalf of RocktheCapital.org
1141 Country Club Rd.
Camp Hill, PA 17110
717-439-6397
717-303-2076 (fax)


Date: January 31, 2006

CERIFICATE OF SERVICE
I hereby certify that this ____ day of January, 2006, a copy of the foregoing Brief of Amici Curiae, Timothy W. Potts, Russ Diamond, on Behalf of PA Clean Sweep, Inc., Eric Epstein, Coordinator, on behalf of RocktheCapital.org was served upon the following via United Stated Mail, First Class, Postage Prepaid:

Gene Stilp
1550 Fishing Creek Valley Road
Middle Paxton Twp., PA 17112
Pro se

Amanda L. Smith, Deputy Attorney General
Susan J. Forney, Chief Deputy Attorney General
Office of Attorney General
Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Commonwealth and Governor

Jonathan F. Bloom
Clark Hodgson, Jr.
Thomas W. Dymek
Stradley, Ronan, Stevens and Young, LLP
2600 One Commerce Square
Philadelphia, PA 19103
Counsel for Speaker Perzel

Sally Ann Ulrich, Chief Counsel
Pennsylvania Treasury Department
127 Finance Building
Harrisburg, PA 17120
Counsel for Treasurer Robert P. Casey, Jr.

Amy Groff
Linda J. Shorey
Kirkpatrick Lockhart Nicholson and Graham, LLP
17 N. 2nd Street
18th Floor
Harrisburg, PA 17101-1507
Counsel for President Pro Tempore Jubelirer

Gregory E. Dunlap, Deputy General Counsel
Commonwealth of Pennsylvania
Office of General Counsel
333 Market Street, 17th Floor
Harrisburg, PA 17101
Counsel for Governor Rendell





____________________________________
Mark P. Widoff, Esq.
Attorney I.D. No. 12660
Attorney for Amici Curiae
Timothy W. Potts
Russ Diamond, on Behalf of
PA Clean Sweep, Inc.
Eric Epstein, Coordinator,
on Behalf of RocktheCapital.org
1141 Country Club Rd.
Camp Hill, PA 17110
717-439-6397
717-303-2076 (fax)



End Notes:

[1] In addition, in a participatory democracy, the people have a right to participate in the lawmaking process. See Article I, section 2, Pennsylvania Constitution.
[2] This Court has recently signaled a willingness to re-examine Consumer Party. See, Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth, 583 Pa. 275, 316-318, 877 A.2d 383, 408-409 (2005). Further, this Court has, when necessary, previously removed mistaken precedents as an obstacle to proper implementation of the Constitution. See, e.g., Sprague v. Casey, supra, 520 Pa. at 58-59, 550 A.2d at 194-195. Finally, the normal presumption of constitutionality of a statute must yield to the clear language of the Constitution, as discussed above. This is even more so when, as in Consumer Party, “...the court’s very strained interpretation serves the judiciary's immediate financial interests. That's sort of situation is precisely the sort in which the justices should be most circumspect. If a judge is going to stretch the constitutional text, let it be to strike down the judges pay raise rather than to permit it.” Ledewitz, supra, 32 Duq. L. Rev. 409, 441.

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