Pennsylvania Constitution: Commentary and Comments* - 2005
If, as reported in the Pittsburgh Post-Gazette on December 18, 2005, the Senate will not vote until spring 2006 to consent to the appointment of Judge Cynthia Baldwin to the Pennsylvania Supreme Court, the court may decide the various pay raise cases now pending before Judge Baldwin joins the court. Undoubtedly there will be pressure on the court to decide the pay raise issue as soon as possible. A decision reinstating the pay raise, either for Judges or for all officials affected by the pay raise, during the 2006 primary elections would potentially harm incumbents. Therefore, the court may try to decide the cases before then. If an early decision is made, it will be by a 5-Justice court, since Justice Nigro's seat would be vacant and Chief Justice Cappy has announced that he will recuse himself from deciding the pay raise issue.
Now that State Representative Jeff Habay has been convicted of a conflict of interest charge, the question is whether he can retain his seat. There are a number of ways that an official can be forced from office. House Majority Leader Samuel Smith has been quoted to the effect that Article VI, section 7 (Removal) will now control. That is not clear. Section 7 applies generally to all civil officers, but exempts members of the General Assembly and others from the only mechanisms of removal that it contains. Article VI also provides for impeachment for "misbehavior in office" in section 6 and that would seem to apply. The parallel to removal in Article VI, section 7 might be expulsion in Article II, section 11, which includes corruption. But that category--corruption--may be limited to bribes. On the other hand, expulsion is a matter of the discretion of the House on a 2/3 vote. The automatic ineligibility provision, Article II, section 7, excludes someone from office for conviction of an infamous crime, which this may not be--theft of services would have been. So Habay may be liable to impeachment or expulsion.
An editorial in the Philadelphia Inquirer quotes Temple University law professor David Kairys suggesting that the challenges to the pay raise repeal be heard by a panel of retired judges. Certainly that would limit the problem of the obvious conflict of interest that any judge was hearing a case involving a judicial pay raise. There are two problems with this idea. First, there simply is no legal authority for such a forum. Special tribunals can be created--see the Judicial Conduct Board--but that must be done by amendment to the Constitution. Second, any such special panel might be bound by the very precedent that the legislature relied upon in passing the pay raise in the first place. It is to be hoped that the Commonwealth will ask the State Supreme Court to overrule the 1986 Consumer Party case that permitted the same legislative maneuvers that led to the July pay raise in 2005. Only the State Supreme Court can overturn that case.
City Council gave tentative approval to an abortion clinic "bubble" protest bill on December 8, 2005. The bill was reportedly patterned after the bubble approved by the United States Supreme Court in Hill v. Colorado, 530 U.S. 703 (2000) and aims to limit contact between patients and protestors at abortion clinics. While the sponsors of the bill may be able to satisfy First Amendment concerns, they have apparently ignored the possibility that Article I, section 7 of the Pennsylvania Constitution may grant greater protections to protestors than does federal law. Litigation has been threatened over any restrictions that are ultimately adopted. Justice Castille's majority opinion in the Erie nude dancing case, Pap's A.M. v. Erie, 812 A.2d 591 (Pa. 2002) established such breadth to freedom of speech and expression in Pennsylvania that plaintiff's in any such case are likely to file in State court. The legal challenge to any protest restriction may be much more serious than City Council anticipates.
According to reports in the media, the defendants in the pay raise litigation pending in Commonwealth Court-Stilp v. Commonwealth of Pennsylvania-have moved for dismissal on the grounds that the repeal of the pay raise renders the lawsuit moot. There are several perspectives from which to view the mootness issue. Pennsylvania law does recognize mootness as a proper ground of dismissal of a lawsuit. However, there is a question whether this case is moot. First, voluntary cessation of illegal conduct by a defendant does not render a case moot. Here, the repeal was entirely voluntary by the General Assembly. Because the legislature did not declare that the original pay raise was unconstitutional, the legislature is free to pass another pay raise in the same manner once the litigation is dismissed. (The fact that this would not happen as a practical matter for political reasons is irrelevant to the issue of mootness). Second, some of the requested relief is not moot, such as requested reimbursement. (The problem with that is that these remedies may not be available).
Assuming for the moment that the case is moot, there is an exception to the mootness doctrine that allows cases involving issues of public importance to go forward if the issues raised may come up again. In this case, the real issue has always been the approval by the Pennsylvania Supreme Court of unvouchered expense accounts and controversial legislation strategies such as bill substitution in Consumer Party v. Pennsylvania, 507 A.2d 323 (1986). Until that case is overturned by the court, the legislature will be tempted to return to these challenged methods of enacting a pay raise. The legislators still apparently believe their methods were appropriate. On Wednesday, November 30, 2005, for example, Kurt Bresswein of the Express Times quoted Rep. T.J. Rooney's explanation of why he would not return money he had received from his unvouchered expense account prior to the repeal: "Clearly on numerous occasions the Supreme Court has ruled and determined that the unvouchered expense is appropriate… Unless or until the Supreme Court of Pennsylvania changes its mind, I'm going to abide by the laws of Pennsylvania." The question about the applicability of this mootness exception is whether these legislative methods tend to avoid review, another requirement of the exception. If such methods are used in the future, they can always be challenged then.
The final mootness issue concerns the judicial part of the repeal. There is an obvious question whether the repeal of the judges' pay raise is constitutional under Article V, section 16(a), which prohibits diminishing judicial salaries. No plaintiff has yet filed suit challenging the repeal, but if such a lawsuit is filed, the validity of the original pay raise would be an issue in that litigation. (If the original pay raise was unconstitutional, the repeal could not violate section 16(a)). This might well render the Stilp case alive rather than moot, but no one knows when, or if, such a lawsuit will be filed.
According to news media reports, the November 16 repeal of the pay raise did not exempt judges' salaries from repeal. The application of the repeal to judges may be unconstitutional under Article V, section 16(a), which provides, with an exception, that judicial "compensation shall not be diminished… ." Is the repeal constitutional with regard to judges? (There is no question that the repeal is constitutional with regard to the legislative and the executive branches).
The repeal is immediately effective with regard to all three branches. That means that all affected salaries are cut-or do not go up-automatically. If no further action is taken, judges' salaries will go down as well.
What sort of action would be required to block the repeal of the pay raise for judges? Some have suggested that the Pennsylvania Supreme Court might issue an order declaring the repeal ineffective as regards judges. Such an order by the court is unlikely. First, the current political atmosphere just would not allow such an action. Second, suspensions by judicial order are only authorized under Article V, section 10(c), which is a rule making power. Suspension does not apply to substantive constitutional powers.
If no court order is forthcoming, only a lawsuit by a judge or by the Office of the Court Administrator can challenge the constitutionality of the repeal for judges. It is to be hoped that a lawsuit will be forthcoming, because the section 16 issue is a serious one. It is no more justified to violate the Pennsylvania Constitution for a good cause than for a bad one.
Assuming such a lawsuit is brought, does the repeal violate section 16? The argument for the validity of the repeal made by Senate Majority Leader David Brightbill, as quoted by Tom Barnes in the Pittsburgh Post-Gazette on 11/17/2005 at page A-7, is that, since the repeal applies to all three branches, it satisfies the section 16 exception for salary cuts "applying generally to all salaried officers… ." This exception has not been interpreted and the Supreme Court might accept this interpretation, especially given the grim political alternative that only judges would be granted an unpopular pay raise. Nevertheless, this interpretation of the section 16 exception is not convincing. The section 16 exception probably requires that a salary reduction be in the same amount or percentage for everyone, which the repeal is not.
Is the repeal then unconstitutional with regard to judges? No. But the reason the repeal is valid is that the original pay raise was itself unconstitutional, both because the legislative pay raise violated the Constitution-coupled with a non-severability clause-and because the procedures used in passing the original pay raise violated the Constitution. These arguments against the original pay raise, however, would require the Supreme Court to overturn the 1986 Consumer Party Case, which allowed the legislature to use unvouchered expense accounts to hide a pay raise and allowed a substitute bill for quick passage.
If there is a challenge to the repeal on behalf of judges, the voters will know there is a new day in Harrisburg if the executive and legislative branches both argue to the court that the original pay raise was unconstitutional and if the court endorses that view. Such a decision would change the law of enacting pay raises and other legislation. Only in that way, can the voters be assured that something like this pay raise debacle will never happen again.
Doubts about the constitutionality of any repeal of the controversial legislative pay raise because of the prohibition against diminishing judicial salaries have focused attention on the constitutionality of the original pay raise. If the original pay raise were held to be unconstitutional, there would be no salary increases to repeal. That would apply to judicial salaries as well as those of the legislative and executive branches. The non-severability clause in the original pay raise causes any illegality to infect the entire bill. A lawsuit has already been filed challenging the original pay raise. The question is why the Commonwealth defendants have not asked the Pennsylvania Supreme Court to exercise King's Bench jurisdiction to hear and decide the issues quickly. A decision to strike down the original pay raise, should such a decision be forthcoming, would obviously alleviate public dissatisfaction to a significant extent.
According to news reports, some members of the House are refusing to go along with a repeal of the controversial pay raise unless pay raises for judges are also repealed. The problem stems from language in Article V, section 16(a) that provides that compensation for judges "shall not be diminished". Since the judicial pay raise was effective in August, a repeal might be regarded by the courts as diminishing judicial salaries. Some legislators are arguing that the exception in section 16(a) should apply, which would allow a judicial pay cut. The exception allows a reduction if the law applies "generally to all salaried officers of the Commonwealth". One question is whether the pay raise and its repeal do apply to all salaried officers, since not all officials were included. The other question is what apply "generally" means. No one knows with certainty, but the language may mean that any judicial reduction must be across the board--the same cut in dollar amount or percentage for every salaried officer. That would not be true of the pay raise or the repeal. Thus, the judicial salary increase may be set in stone. If so, the legislature must decide whether to write a non-severable repeal, which might mean that the repeal is unconstitutional for everyone or write a severable repeal and take a chance that the courts will rule that only their pay raise remains effective. What the voters will think of all this is unknown.
The repeal of the pay raise for legislators and other state officials, which was enacted late on Wednesday, 11/2/2005, seems to raise constitutional issues of its own. The procedure to enact the repeal, ironically, may have skirted some of the same procedural requirements that opponents had claimed the original pay raise bill had flouted. In addition, insofar as the pay raises for judges had already become effective, a repeal might violate Article V, section 16 (a) of the Pennsylvania Constitution, which provides in part that "compensation [for judges] shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth." It was reported that one version of the pay raise repeal contained a non-severability clause, which would mean that if part of the repeal is unconstitutional, all of the repeal is rescinded. Finally, the effect of repeal on the two pending pay raise challenges is unclear. Recoupment of legislative pay is not permitted under the speech and debate clause. But recoupment of pay raises for other state officials might be possible. In addition, if the judges' pay raise cannot be rescinded, a challenge that would eliminate the judicial pay raise is not mooted by a repeal. The non-severability clause in the original pay raise bill means that any illegality invalidates pay raises for all beneficiaries.
In Pennsylvania State University v. State Employees' Retirement Board, 880 A.2d 757 (Pa. Commw. 8/12/2005), the Commonwealth Court, en banc, per McGinley, J., held that the salaries of certain prominent employees of PSU, including Joe Paterno, were public records under the Right to Know Act (RTKA). Furthermore, there were no exceptions that applied to prevent the information from being released to the public. The Court applied a balancing test to the employees' expectation of privacy in their salary records and the interest of the media in knowing how state employees are paid. There has been at least one editorial criticizing the decision for departing from prior caselaw. The criticism seems to center on a reduction in the right of privacy. However, such disparity in decisions is virtually inevitable when a court decides to use a balancing test. The result might offend people who blush at the idea that citizens' salaries can become known by the public, but until Pennsylvania courts adopt a more predictable method for RTKA cases, seemingly contradictory decisions will continue. (This commentary was prepared by Jeffrey Mansell).
Justice Castille's opinion for a unanimous court in In re Randy Buchanan, 2005 WL 1943557 (Pa. August 15, 2005) [see Article V, separation of powers] clarifies but does not quite resolve the statutory issue whether autopsy reports are "official records" subject to public inspection under section 1251 of the Pennsylvania Coroner's Act. Commonwealth Court and Superior Court had split on this issue, see Johnstown Tribune Publishing Co. v. Patricia Ross, 871 A.2d 324 (Pa. Cmwlth. 2005), but the Supreme Court did not refer to the dispute at all. Instead, in a rather offhand remark, Justice Castille wrote that Superior Court's interpretation of the statute--that autopsy reports are official records--"is certainly reasonable... ." Apparently the parties did not dispute that the reports are covered by the statute, which is remarkable, given Commonwealth Court's clear holding that they are not covered and therefore are not subject to public view at all. The actual issue in Buchanan was whether, given the clear statutory mandate, a court could still seal a particular autopsy report upon a showing that release of the report "would substantially hinder an ongoing criminal investigation". The court held that there is inherent judicial authority to seal the autopsy report in such an instance. This holding is surprising, for two reasons. First, autopsy reports are not in any sense judicial documents and the protection of criminal investigations is not directly a judicial function. So, what is the source or rationale of such an inherent judicial power? Second, the opinion seems to suggest that the legislature could have the final say on this matter if the Coroner's Act were amended. But, if the power at issue is truly an inherent judicial power, how could the legislature speak to the matter at all?
On Saturday, August 20, Tom Barnes wrote a story in the Post-Gazette describing a new coalition of persons and groups who are considering challenging the recent pay raise legislation in federal court. In theory, once a federal claim is identified in a case, that case can be filed in federal court and, once there, all issues in the case, including State law issues can be litigated under supplemental jurisdiction. The advantage of such a strategy for pay raise litigation is that federal judges have no connection to the pay raise, unlike State judges, whose own pay raise is tied to that of legislators. There are two potential problems with such a strategy, however. The first is to identify a federal issue in the case. The best issue in the case is a State constitutional issue--that the unvouchered expense accounts violate Article II, section 8's prohibition of salary increases during a legislative term. One potential federal issue might be a due process claim that the non-severability clause in the legislation was intended to, and does, deprive any plaintiff of an impartial decision-maker because it creates a conflict of interest for every judge in Pennsylvania. The other problem with federal court litigation is that federal courts must follow established State court precedent in deciding State law issues. A federal judge might feel bound by the Consumer Party case--see infra--and uphold the pay raise on the authority of that case. Conversely, if the case were tried in State court, a plaintiff could ask the Pennsylvania Supreme Court to overturn the Consumer Party case. Again, a plaintiff might try to litigate some issues in federal court and other issues in State court, but a plaintiff would then risk dismissal on res judicata grounds for claim-splitting.
In a case of first impression, Judge Dych of the Court of Common Pleas of Philadelphia County applied the Pennsylvania Religious Freedom Protection Act, 71 P.S. section 2402 et seq., to support a preliminary injunction prohibiting the City of Philadelphia from terminating a firefighter whose religious beliefs require him to grow a beard. Deveaux v. City of Philadelphia, 2005 WL 186966 (July 14, 2005). The plaintiff had alleged a violation by the City of both the Act and the Pennsylvania Constitution, presumably Article I, section 3. The Act has clear parallels to the federal Religious Freedom Restoration Act of 1993, which Congress passed in an attempt to overturn Employment Division v. Smith, 494 U.S. 872 (1990), in which the U.S. Supreme Court eliminated the compelling state interest test for free exercise of religion claims. The Court found the federal statute unconstitutional in Boerne v. Flores, 521 U.S. 507 (1997). The Pennsylvania Legislature did not attempt to interpret the Pennsylvania Constitution per se in the Religious Freedom Act, but provided as a rule of construction of "all laws" be construed "to avoid the imposition of substantial burdens upon the free exercise of religion without compelling justification." The defendant in Deveaux apparently did not challenge the constitutionality of the Act and, given the different theory of power of the Pennsylvania Legislature versus that of Congress, the State Act could not be challenged on the same grounds that were argued in Boerne.
The question has arisen as to the weight of Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323 (Pa. 1986) as a precedent for upholding the unvouchered expense account provision of the recent legislative pay raise. Consumer Party upheld similar unvouchered expense accounts as part of a legislative pay raise in 1986. Commonwealth Court relied on Consumer Party in upholding a legislative pay raise containing the same unvouchered expense account mechanism in Stilp v. Commonwealth, 699 A.2d 1353 (Pa. Cmwlth. 1997). It is fair to say that Consumer Party is a strong precedent with regard to the current pay raise. Because of that fact, there is little chance that Commonwealth Court, which is bound by the Consumer Party precedent, will overturn the current pay raise. (There is some chance, however, because a "reasonableness" challenge can be mounted on the facts of the size of the expense account and its relation to actual expenses). The best chance to overturn the pay raise is to move the case to the Pennsylvania Supreme Court and ask that court to overrule the expense account part of Consumer Party. For some reason, Stilp in 1997 did not reach the State Supreme Court even though the case was originally filed in Commonwealth Court and there is a right of appeal in such cases to the State Supreme Court. 42 Pa.C.S.A. section 723. It is to be expected that this time, the pay raise issue will end up before the State Supreme Court, which, as noted below, has recently been critical about other aspects of Consumer Party.
The decision of the Commonwealth Court panel in Smith v. Cortes, __ A.2d __, 2005 WL 1668262 (Pa. Cmwlth. July 19, 2005) was more significant for its alternative ground than its holding. The court held that the continuing education requirement imposed on notary publics as a condition for commission renewal was not a "taking" under either the U.S. or State Constitutions. The alternative holding was that even if the requirement were a taking, no recovery of payment from the Commonwealth would be possible because of the sovereign immunity statute, 1 Pa.C.S. section 2310, passed on the authority of Article I, section 11 of the Pennsylvania Constitution. Aside from the question whether a state protection could bar payment for a federal taking, the holding raises the question whether sovereign immunity does, or can, bar retrospective remedies--or for that matter prospective remedies--for violations of the State Constitution. The question echoes federal 11th amendment issues, but has never been considered by the State courts as a fundamental constitutional question.
Chief Justice Cappy very unwisely agreed to an interview concerning the July 7 pay increase for officials in the three branches of government. An article based on the interview appeared on July 19, 2005. See Chief justice calls pay-hike opposition knee-jerk , which can be found on the Internet at http://ap.lancasteronline.com/4/pa_pay_raise_chief_justice. The interview focused on the pay raise substantively and not on the form of the legislative pay raise-an unvouchered expense account that the IRS will no doubt treat as the salary increase it in fact is. The form of the increase, rather than the increase itself, definitely raises a serious state constitutional issue because Article II, section 8 forbids legislators from receiving a salary increase during a term. The Chief Justice therefore had no business stating " he is not anticipating a lawsuit... . " Nor, given the potential issue, should he have said, in support of the pay raise, "I wouldn't be proposing something that I innately think unconstitutional'". Of course, a legislative pay increase is not innately unconstitutional, but Chief Justice Cappy made these comments after the form of the pay raise was known. Thus, it could be said that he has opined that this bill in particular is constitutional. [Media reports state that a lawsuit challenging the constitutionality of the pay raise was filed in Commonwealth Court on Monday, August 1, 2005].
Chief Justice Cappy's unanimous opinion for the court upholding the basic provisions of the Pennsylvania gambling law, Pennsylvanians Against Gambling Expansion Fund v. Commonwealth , ___ A.2d ___, 2005 WL 1459571 (Pa. June 22, 2005) limits the holding an early legislative pay raise case, Consumer Party v. Commonwealth , 507 A.2d 323 (Pa. 1986) and reinvigorates the prohibition against changing the original purpose of a bill contained in Article III, section 1. In Consumer Party , a pay raise was inserted into a bill that was already in conference committee and that had no connection whatever to a pay raise. The opinion in Pennsylvanians Against Gambling characterized Consumer Party as limiting section 1 analysis to the point of final passage. Actually, the court in Consumer Party simply took the conference committee stage as if it had been the beginning of a new bill ("Here, there was no change in the bill's purpose after it left the Committee... ."). In any event, even though the court in Pennsylvanians Against Gambling did not mention conference committees in its analysis, it is to be presumed that the legislature will not be permitted in the future to pick a bill in conference committee and give the bill a new content.
*Unless otherwise noted, all interpretations are written by Bruce Ledewitz, Professor of Law at Duquesne University School of Law and reflect his views.