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Pennsylvania Constitution: Commentary and Comments* 1987-2002

The decision of an equally divided Pennsylvania Supreme Court, in effect upholding the decision of the Commonwealth Court striking down the Lobbying Disclosure Act as an interference with the Supreme Court's authority to regulate the practice of law, Gmerek v. State Ethics Commission, 807 A.2d 812, (Pa. 2002), again raises the issue of Article V, section 10, and the issue of generally applicable laws that also bind attorneys. The Justices could have saved the statute by adopting the statute's prescriptions as the ethics rules for lawyer/lobbyists in certain circumstances, but did not do so.

In a civil rights case by adoptive parents against Cumberland County Children and Youth Services, Robbins ex rel. Ribbons v. Cumberland County Children and Youth Services, ___ A.2d ___, 2002 WL 1584897 (Pa. Cmwlth., July 18, 2002) (No. 405 C.D. 1999), Commonwealth Court stated that the availability of a direct cause of action for damages under the State Constitution has never been decided and that constitutional causes of action might in any event be barred by statutory governmental immunity. The case points up the failure of the Pennsylvania courts to address justiciability issues under the Pennsylvania Constitution in any sort of consistent manner.

In Bold Corporation v. County of Lancaster, 801 A.2d 507 (Pa. 2002), the Pennsylvania Supreme Court reversed Commonwealth Court and held that the imposition of a hotel room rental tax to build a convention center in Lancaster County is constitutional. Despite the unanimous reversal, cases of this kind are likely to continue to be filed until the Court overrules Allegheny County v. Monzo, 500 A.2d 1096 (Pa. 1985). Monzo, which disallowed the application of a similar tax for a convention center to a Monroeville hotel, seemed to establish a constitutional test that a tax is unconstitutional if its burdens are palpably disproportionate to its benefits. This approach to taxation places the Pennsylvania courts in the position of second-guessing the wisdom of taxes. It is unlikely the Pennsylvania Supreme Court will ever again overturn a tax based on the authority of Monzo, which more and more looks like a lark. The Court would be well advised to overrule it.

The recent Pennsylvania Supreme Court decision reported in the media as permitting same-sex couple adoption, In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195, (Pa. 2002), did not reach the State and federal equal protection issues that would arise were such adoptions barred. Instead, in a close reading of the Pennsylvania adoption statute, Justice Zappala's opinion for the Court concluded that nothing in the statute precluded adoption of a child by the same-sex partner of the natural parent. The only statutory bar to such an adoption would be the requirement in all non-spouse adoptions that the natural parent relinquish all parental rights. But, just as that relinquishment of parental rights is subject to a "for cause shown" exception in the case of a non-spouse, heterosexual partner, it is subject to the same cause exception in the case of a non-spouse, same-sex partner. Justice Zappala's opinion did seem sympathetic to the suggestion by counsel that retention of an unmarried, but intact family unit might constitute such "cause", but technically the case was remanded to the trial court for a showing of cause for why the natural parent should not be forced to relinquish parental rights. As a practical matter, the language in the opinion that the adoption statute "does not expressly preclude same-sex partners from adopting" will probably lead trial judges in Pennsylvania to permit adoption when a same-sex partner seeks to adopt the child of the natural parent.

The case of Commonwealth v. Perry, 798 A.2d 697 (Pa. 2002) shows division on the court over the reach of Article I, section 8 in automobile search cases. There was no majority opinion in the case. Justice Cappy's opinion announcing the judgment of the court and Justice Nigro's dissent, joined by Justice Zappala, argue that Pennsylvania law is settled that a warrantless vehicle search requires both probable cause and exigent circumstances. Such an approach would differ from federal law, which requires only probable cause. Justice Castille's concurring opinion, joined by Justice Newman, argues that the issue has not yet been decided and remains open. Justice Saylor's concurring opinion suggests that Pennsylvania law has required exigent circumstances, though the matter is not as settled as some of the opinions state. Justice Flaherty did not participate in the decision in the case.

The May 21, 2002, primary victory by Jake Wheatley for a House district seat from Pittsburgh raises the issue of the interpretation of Article II, section 7, which bars anyone convicted of an "infamous crime" from holding office in Pennsylvania. Wheatley's 11 year old conviction for assault and larceny represented a felony in Michigan, but might not be so considered under Pennsylvania law. The other issue in Wheatley's situation is whether any theft offense, even a misdemeanor, is considered an infamous crime because it involves an element of dishonesty. It is not altogether clear that the matter will even reach the courts. The Attorney General has raised such issues in the past, but in light of his running for Governor, he may prefer not to raise the issue. The House might refuse to seat Wheatley, but the district involved is heavily Democratic and so barring him would not gain any long-term partisan advantage for the Republican majority. Bolus v. Fisher, 785 A.2d 174 (Pa. Cmwlth. 2001), establishes that the case is ripe for review even prior to the November election, so the Attorney General may be forced to address the issue on the campaign trail.

The methodology of State constitutional interpretation utilized in In Interests of R.H., 791 A.2d 331 (Pa. 2002), conflicts with earlier caselaw. In R.H., Justice Nigro's plurality opinion finds a federal constitutional violation and then finds "no need" to reach the same issue under the Pennsylvania Constitution, citing Gondelman v. Commonwealth, 554 A.2d 896, 898 (Pa. 1989). But in other cases, for example, Commonwealth v. Franciscus, 710 A.2d 1112 (Pa. 1998), the court has decided a federal constitutional issue and then has gone on to determine the corresponding State constitutional issue.

In Lawless v. Jubelirer, 2001 WL 1658112 (Pa. Cmwlth., January 4, 2002), the Commonwealth Court of Pennsylvania sustained a demurrer to request for declaratory judgment, essentially holding that Robert Jubelirer may serve simultaneously as Lieutenant Governor and State Senator/President pro tempore of the Pennsylvania Senate. Presumably the Pennsylvania Supreme Court will accept the case for review and resolve the issue.

Aside from ignoring precedent on incompatible offices, see O'Pake below, the strangest thing about the Commonwealth Court opinion in Jubelirer is the failure of the court to treat the prohibition in Article II, section 6 of anyone holding an "office" from being a member of either House. The opinion distinguishes Article IV, section 6, which provides that no one holding any office may serve as, inter alia, Lieutenant Governor, on the ground that State Senator is not an "office". The court also distinguishes the first part of Article II, section 6, which says that State Senators and Representatives may not be "appointed" to any office. Jubelirer was not appointed Lieutenant Governor. But the second sentence of section 6 is broader. No one holding any office "shall be a member of either House... ." Jubelirer now holds an office--Lieutenant Governor--and is also a member of one House. Nor does the court explain how, if Jubelirer is not barred from serving in two offices at the same time, anyone else would be barred. Under the court's reasoning, anyone could run for Governor while a State Senator and then occupy both posts.

[The following commentary was written before the Commonwealth Court decided the Jubelirer case.] The developing issue involving whether Senator Robert Jubelirer's office becomes vacant when he becomes Lieutenant Governor is not easily resolved. Jubelirer assumes the office of Lieutenant Governor under Article IV, section 14, which provides that the President pro tempore of the Senate becomes Lieutenant Governor when that officer becomes Governor, as Mark Schweiker did when Tom Ridge resigned as Pennsylvania Governor. There is no question that, as a general matter, the Office of Senator and the Office of Lieutenant Governor are incompatible offices under both Article IV, section 6 and Article II, section 6. Indeed, the Commonwealth Court specifically held in In re O'Pake, 422 A.2d 209 (Pa. Cmwlth. 1980), that the offices of Attorney General and State Senator are incompatible--that is, an individual could not hold both offices at the same time. The problem arises with Jubelirer because Article IV, section 14, provides expressly that the Senate seat of the President pro tempore of the Senate "shall become vacant" when the President becomes Governor, but does not so provide when the President becomes Lieutenant Governor.

There are several possible answers to this question. It may be that the Constitution means for an individual to hold both posts and to exercise the powers of both offices. This seem unlikely, since the President pro tempore is to serve as Lieutenant Governor "for the remainder of the term [of the Lieutenant Governor]", which would allow Jubelirer to occupy both posts for an extended time. In all other such cases, the Constitution provides for special elections. There also would be insurmountable issues concerning the role of the Lieutenant Governor as "President of the Senate" pursuant to Article IV, section 4.

Another possible interpretation is that Article IV, section 14, is simply badly drafted or was based solely upon inapplicable language from the Constitution of 1874. In that case, a court could simply declare Jubelirer's seat vacant, despite the ambiguity in the constitutional language.

A third alternative would be to distinguish between holding two incompatible offices, which is prohibited, and declaring Jubelirer's Senate seat "vacant", which only happens if the President pro tempore becomes Governor. Under this interpretation, Jubelirer's seat is not vacant while he serves as Lieutenant Governor, but he may not serve as President pro tempore nor, for that matter, as a Senator. The State Senate seat in effect remains open and a new President pro tempore of the Senate must be selected. If the State Senate term ends while Jubelirer is still serving as Lieutenant Governor, the election for the State Senate seat would be conducted in the normal fashion. (To get somewhat ahead, under the O'Pake case, Jubelirer, still sitting as Lieutenant Governor, could run for that seat, but could not occupy it without resigning as Lieutenant Governor).

Commonwealth v. Crawford, decided December 27, 2001, by Superior Court, shows how the media must go about contesting a gag order. The order in that case, one in which the prosecution was seeking the death penalty for a juvenile, barred the attorneys from certain extra-judicial statements. The media sought to intervene, which was denied, and then challenged the gag order. Superior Court held that the media lacked standing directly to challenge the order, which did not bind the media in any way. The denial of intervention could not be challenged because the failure to appeal waived that issue. Obviously, in the future, the media must vigorously press intervention in such cases and appeal denials.

In deciding that under Article I, section 8, there is no expectation of privacy in telephone conversations with informants, the court in Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001), followed in a general way the dictates of federal constitutional law. The decision did not utilize the format of Commonwealth v. Edmunds to frame the State constitutional issue. Nevertheless, Rekasie probably does not portend a change in the court's approach to Article I, section 8. The decision was written as essentially a common law question of whether Commonwealth v. Brion would be extended to the context of telephone conversations from one's home. Rekasie might suggest, however, that the formality of the Edmunds four factor test is not felt to be necessary by the Justices when there is already Pennsylvania case law in an area. That is the position Justice Larsen took years ago in Blum v. Merrell Dow Pharmaceuticals, 626 A.2d 537, 549 (Pa. 1993) (Larsen, J., concurring).

Pennsylvania Prison Society v. Commonwealth, 2001 WL 835891 (Pa. 2001) in upholding the amendment to the composition and procedure of the Board of Pardons, the court was so divided that there was no majority opinion. The division in the case between Justice Zappala's plurality opinion and Justice Saylor's concurrence--joined by Justices Castille and Newman--was apparently over Justice Zappala's rejection of a "single subject" test for deciding whether separate votes are needed for proposed changes in the Constitution. As it was, a majority of the Justices must have applied a less restrictive test for defining separate changes than did Commonwealth Court, although no "test" was actually set forth. Commonwealth Court found five separate changes, while a majority of the Justices found no more than two. This may make it easier to amend the Pennsylvania Constitution in the future. (Justice Zappala upheld the amendment despite two subjects because one subject effected no change in the legal authority already present in the State Senate.)

Commonwealth v. Means, 2001 Wl 708446 (Pa. 2001) upheld the constitutionality of using victim impact statements in capital cases with suitable limiting instruction. The plurality opinion by Justice Cappy performed a full Edmunds analysis in interpreting Article I, section 13.

Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001) illustrates a recent trend in State Supreme Court decisions to ignore interpretive method, for example, the factors outlined in Edmunds, and simply decide constitutional issues directly under the State Constitution. For another example, see Commonwealth v. Yastrop, 769 A.2d 318 (Pa. 2001); cf., Blum v. Merrell Dow, 626 A.2d 537, 549 (Pa. 1993) (Larsen, J., concurring): Edmunds methodology inapplicable to interpretation of plain meaning of Pennsylvania Constitution.)

Commonwealth v. Yastrop, 769 A.2d 318 (Pa. 2001) does not entirely reflect a majority sentiment upholding DUI roadblocks, even with objective standards. Justices Cappy and Saylor, and perhaps Castille, evidence unhappiness with the outcome and Chief Justice Flaherty, and Justices Zappala and Nigro dissent.

If no argument for broader interpretation of the Pennsylvania Constitution is made, footnote 8 of Commonwealth v. McCafferty, 758 A.2d 1155, 1159 (Pa. 2000), suggests that the parallel federal law will be applied.

The Pennsylvania Supreme Court continues to refer to different provisions of the Pennsylvania Constitution as equivalent to federal equal protection--Article I, section 26, in Commonwealth v. Albert, 758 A.2d 1149 (Pa. 2000)--and continues to state that State analysis uses the same standards as federal equal protection law, although the latter claim does not appear to be accurate.

The discussion by the Pennsylvania Supreme Court of special legislation prohibited by Article III, section 32, in Harrisburg School District v. Hickok, 762 A.2d 398 (Pa.Cmwlth. 2000), is a good summary and starting point, particularly on the difference between classes of one and rational relationship analysis. Commonwealth Court seemed to hold that separate legislation within a class of municipalities will always be unconstitutional as not general legislation in Wings Field Preservation Associates v. Pennsylvania Department of Transportation. The expansive quality of this holding is reminiscent of Hoffman v. Township of Whitehall (Pa. 1996), which struck down a statutory preference for veterans in public employment promotion as a special law violative of Article III, section 32. The Pennsylvania courts seem unaware that these holdings apply section 32 well beyond any analogous application of federal equal protection. In Wings Field, Judge Kelley also held that the special authorization for Montgomery County also violates federal and State equal protection under the rational basis test. This holding is certainly questionable since Montgomery County is larger than the other two second class counties, which presumably would satisfy rationality in distinguishing its powers. The court may have been influenced by a concern for federal supremacy and preemption, though there was no holding on that point.

A question of procedure arose in Commonwealth v. Polo, 759 A.2d 372 (Pa. 2000), in which the majority held that the stop of a bus constituted an unconstitutional investigative stop. The defendant in Superior Court raised both State and federal constitutional arguments. The Superior Court suppressed the evidence based on the fourth amendment and did not reach the State Constitutional issue. The Commonwealth sought review in the Pennsylvania Supreme Court. The court affirmed based on the State Constitution, but Justice Newman felt that the defendant had waived the State Constitutional issue both by not setting forth the issue in a cross appeal or counter statement of the case and by not setting forth an Edmunds-type argument in either court.

In Hessley v. Campbell, 751 A.2d 1211 (Pa. Cmwlth. 2000), the en banc Commonwealth Court stated that "in these days, when we can save our forests by creating electronic rather than paper lists, there is a duty to do so..."-citing Article I, section 27. The statement was in support of the court's holding that the County was required to distribute a street list to a political entity on a computer diskette at no charge. It is not clear whether Judge Friedman was truly serious in the use of this language, but this certainly is an expansive interpretation and use of section 27



The Pennsylvania Supreme Court is closely divided over the proper treatment of anonymous tips in investigatory stop cases. In two cases, Commonwealth v. Goodwin, 750 A.2d 807 (Pa. 2000) and Commonwealth v. Wimbush, 750 A.2d 795 (Pa. 2000) decided April 17, 2000, the court suppressed evidence, but did not clearly indicate whether the decisions were predicated on state constitutional standards or federal constitutional analysis. In Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000) and Commonwealth v. Goodwin, (Pa. 2000), the court wrestled with the federal and State constitutional standards for investigatory stops based on uncorroborated anonymous tips. In both cases, the majority held that the stops were not justified, but there was disagreement over the ground of the decision. In Wimbush, in footnote 2, Justice Nigro stated that Pennsylvania law follows "Fourth Amendment jurisprudence in stop and frisk cases." The opinion then distinguished the case from that of Alabama v. White, 496 US 325 (1990). Justice Flaherty, however, who joined the majority as the necessary fourth vote, seemed to apply Pennsylvania law only, implying a stricter test for stops based on anonymous tips under Article I., section 8. In dissent, Justice Zappala stated expressly that the federal and state standards differ and that the search in this case was valid only under the Fourth Amendment. In a separate dissent, Justices Castille and Newman agreed with the majority opinion that the federal and state standards were the same, but would have held the search to be valid under the federal standards.

In Goodwin, the same doctrinal split was evident. The plurality of Justices Nigro and Cappy wrote that Pennsylvania followed the federal standard in stop and frisk cases and that the search was invalid under the Fourth Amendment standard. In concurrence, Justice Zappala, joined by Justice Flaherty, concluded that the anonymous tip in Goodwin justified the stop pursuant to Alabama v. White, supra, but that Pennsylvania follows a stricter standard than does the Fourth Amendment. In dissent, Justice Castille, joined by Justice Newman, would have held that Alabama v. White controls the case and would have upheld the search.

Thus, although a majority of the court was of the view that federal law controlled the case and a different majority was of the view that the federal standard was satisfied, the search in Goodwin was reversed.

Although at the moment, only Chief Justice Flaherty and Justice Zappala are prepared to hold that Pennsylvania rejects the federal standard in anonymous tip stop cases, counsel would be prudent to argue in the alternative in such cases. Justices Nigro, Cappy and Saylor do not seem willing to follow the United States Supreme Court very far in permitting anonymous tips to justify searches. Thus, they may yet hold that there is a separate state standard in such cases.

In Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999) (Upholding registration requirements of Pennsylvania's Megan's Law), the court, per Justice Zappala, contributed to the continuing confusion concerning when the Pennsylvania Constitution will be held to provide greater protections for individual rights than does the federal constitution. The court cited approvingly the Superior Court's reference to both Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) and Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985) as the proper standard to employ in making that decision. But these two cases provide vastly different standards for analysis. Specifically, Gray requires a "compelling reason" for providing greater rights, whereas, Edmunds does not grant federal standards any such presumption. Nor is the court's application of Edmunds free from ambiguity--in Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999), Justice Cappy seemed to require "policy issues unique to Pennsylvania" id., at 438, before that prong of Edmunds analysis could count toward an outcome different from that under federal constitutional analysis.

In Commonwealth v. Ortiz, 738 A.2d 403 (Pa. 1999), the Pennsylvania Supreme Court unanimously reinstated the charge of carrying an unlicensed firearm against a defendant who had carried a firearm in the backyard of an apartment rowhouse he shared with residents of the other two apartments. The issue in the appeal had been whether such a common space qualifies under the "place of abode" exception under section 6106(a) to the requirement of a license. What is noteworthy about the case is the continuing tendency of the Justices to refrain from seeing constitutional dimensions to gun control cases, despite the breadth of Article I, sections 1 and 21. In this regard, Commonwealth Court allowed revocation of a gun permit under the police power standard in Tsokas v. Board of Lic. And Inspect. Rev., (Pa. Cmwlth. 2001), which is a very low standard for regulation of a constitutional right.

By expressly reserving the question whether Article I section 9 might expand procedural due process, at least in criminal cases, beyond "certain 'minimum' [federal] standards", Commonwealth v. Williams, 733 A.2d 593, 608 n. 17 (Pa. 1999), the Pennsylvania Supreme Court may be signaling a readiness to hold that it does. Such an expansion of due process under the State Constitution would mark a change in current interpretation. For a recent restatement of one general rule that Article I, section 9 does not provide greater protection than does federal due process, see Commonwealth v. Scher, 732 A.2d 1278, 1280, n. 1 (Pa. Super. 1999).

The Pennsylvania courts are currently linking tax uniformity principles under Article VIII to the standards of federal equal protection. See e.g., Conley Motor Inns, Inc. v. Township of Penn, 728 A.2d 1012, 1014 (Pa. Cmwlth. 1999) (applying the "rational basis standard" for reviewing constitutionality of tax exemptions) and Parsowith v. Commonwealth, 723 A.2d 659, 663 (Pa. 1999) (same). (Although this tendency is not new, it is in tension with an older approach of not applying federal standards to State uniformity issues. See Amidon v. Kane, 279 A.2d 53 (1971) (Pennsylvania income tax unconstitutional in part because of borrowing federal tax exemptions and deductions).

The decision by the State Supreme Court in Denbow v. Borough of Leetsdale, 729 A.2d 1113 (Pa. 1999), that Article III, section 26's "principles" "apply with equal force" to a municipality may mean that other prohibitions and prescriptions of Article III bind local government as well. That would certainly be a new application of Article III.

Commonwealth Court's decision in Shaulis v. Pennsylvania State Ethics Commission, 739 A.2d 1091 (Pa. Cmwlth. 1999), limiting the authority of the Commission to regulate former government employees, takes a narrow view of the reach of P.J.S. v. Pennsylvania State Ethics Commission, 723 A.2d 174 (Pa. 1999). In P.J.S., the court suggested that, as regards regulation of attorneys, conduct that would be prohibited if performed by anyone can be regulated by agencies of government other than the State Supreme Court. In Shaulis, Commonwealth Court held that the direct practice of law cannot be regulated even if the regulation also limits the activities of non-attorneys.

In Shaw v. Pennsylvania Board of Probation and Parole, ___ A.2d ___ (Pa. Cmwlth. 1999), a panel of Commonwealth Court confronted the problem of a lower court trying to follow the lead of a State Supreme Court on an issue of state constitutional law. The Pennsylvania Supreme Court had held in Scott v. Board of Probation and Parole, 698 A.2d 32 (Pa. 1997) that a warrantless search of a parolee's residence without probable cause is a violation of the fourth amendment. But that holding had been reversed by the United States Supreme Court, 524 US 357 (1998). Although the panel in Shaw accepted the argument by the Petitioner that the court in Scott would also have held that such a search violates Article I, section 8 of the Pennsylvania Constitution, the court refused to apply that result. The reason for not reimposing the rule of Scott was that the Pennsylvania Supreme Court has also held that Article I, section 8 does not generally afford greater rights to parolees than they enjoy under the fourth amendment. Therefore, once the result in Scott was reversed by the United States Supreme Court, that reversal constituted a reversal of state constitutional law as well.

The decision by the State Superior Court in Commonwealth v. Kilgore, 719 A.2d 754 (Pa. Super. 1998)--a P.C.R.A. case--that counsel had been ineffective for failing to raise a search issue under the State Constitution may signal a new era in Pennsylvania constitutional jurisprudence. Although technically limited to a particular search issue, the court's reasoning suggests that failure to raise a potentially determinative issue under the State Constitution, when counsel did raise the same or similar issue under the federal constitution, may constitute per se ineffective assistance of counsel.

The decision by the Pennsylvania Supreme Court to dismiss challenges to the Pennsylvania system of public education funding on the ground that such challenges represent nonjusticiable political questions, draws attention to the court funding case, Allegheny County v. Commonwealth, 534 A.2d 760 (Pa. 1987) as the lone exception in which the Court has been willing to consider the constitutionality of a legislative determination of a large scale funding issue. The outcome in the funding case, Marrero v. Commonwealth, __ A.2d __ (Pa., October 1, 1999) may render the legislature even less disposed to comply with the Court's order in regard to court funding.


*Unless otherwise noted, all interpretations are written by Bruce Ledewitz, Professor of Law at Duquesne University School of Law and reflect his views.