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Pennsylvania Constitution: Commentary and Comments* 2007-2009


Jefferson County Court Appointed Employees Assoc. v. Pa. Labor Relations Board might turn out to be an extremely important case.  Despite its labor relations context, Justice Baer's opinion seems to suggest that the local Courts of Common Pleas must be given overall budget figures that the judiciary then decides how to allocate, in addition to the mandamus action acknowledged by all of the Justices if appropriation levels impair the administration of justice.  Observers of the Pennsylvania Supreme Court are currently wondering what implication, if any, the Jefferson County case holds for the Court's reconsideration of the Allegheny County statewide funding precedent.


The holding by the Pennsylvania Supreme Court in Building Owners and Managers Ass'n of Pittsburgh v. City of  Pittsburgh, --- A.2d ----, 2009 WL 5066916 (Pa. December 28, 2009) that a Pittsburgh ordinance requiring employers with new service contracts to keep the employees of the prior contractor for at least 180 days exceeded the City’s power and violated both the City’s Home Rule Charter and Optional Plans Law, 53 Pa.C.S. § 2962(f), was not, strictly speaking, a State constitutional decision. However, the opinion by Justice Greenspan for a 6-1 Court suggested a willingness by the Justices to imply broad restrictions on municipal authority based on general statutory language despite the tone of Article IX, section 2.  In this case, the Court found that home rule municipalities are prohibited “from regulating businesses”, which will certainly lead to future challenges to the powers of local government by business.  Justice Todd dissented.


Recent calls for a Pennsylvania constitutional convention (see news) have betrayed great frustration with what is usually called the political "culture" in the legislature.  But other than reducing the actual number of legislators, currently 253, the largest legislature in the nation, there is absolutely no agreement about what such a convention should do.  Constitutional conventions can bring surprising results.  For example, the 1968 Pennsylvania constitutional convention, among its other actions, constitutionalized the office of County Public Defender and increased the powers of the State Supreme Court, thus insulating lawyers in Pennsylvania from legislative control.  These were not results foreseen or even understood at the time of the convention.  In addition, the precedents are mixed as to whether such a convention can be limited in the areas it addresses.  So, a convention might end up taking up the issue of gay marriage or other hot button issues.  Undoubtedly, people on the right want term limits and people on the left want merit selection of judges, but what would actually come out of a convention is anyone's guess.  One thing is sure.  You don't hold a constitutional convention to "shake things up".


The statement opposing Pittsburgh Mayor Luke Ravensthl’s proposed “student privilege” tax, which was issued by Dr. Mary Hines, President of Carlow University, on behalf of the Pitttsburgh Council of Higher Education[1] on Tuesday, November 10, contained the following language: “the Mayor’s proposal is contrary to well established law in Pennsylvania… .”  Although Dr. Hines did not specify what caselaw she was referring to, it is probable that she meant the line of cases culminating in City of Washington v. Board of Assessment (Pa. 1997), which held that colleges and universities in Pennsylvania are entitled to tax exempt status under Art. VIII, section 2(a)(v) of the Pennsylvania Constitution (“institutions of purely public charity”).  The question of the tax exempt status of colleges and universities had been the subject of litigation for years before the Court upheld the tax-exempt status of Washington & Jefferson College.  That decision seems to have concluded the matter.  There are, however, two additional questions concerning the Mayor’s proposal.  First, since all of the above caselaw decided only that most institutions of higher learning cannot be taxed directly, will the courts hold that an indirect tax on students amounts to the same thing as a direct tax?  Second, in the background of all of this discussion is the State statutory tax context within which all Pennsylvania municipalities must operate.  Is the student tax permissible under existing statutory law?  If so, the State legislature could remove the power to impose such a tax.  It would not be surprising if, behind the scenes, colleges and universities across Pennsylvania are already meeting with state legislators to draft such a ban.

[1] Duquesne University is also a member of the Council.


The story in the Pittsburgh Post-Gazette by Tracie Mauriello on October 25 (“Zappalas hold posts at casino association”) has generated a great deal of comment and concern all over the State, including in the State legislature.  Obviously the story performed a public service in raising a matter that needed to be looked at.  Most of the concerns about the roles of former Justice Stephen Zappala and his daughter in the Pennsylvania Casino Association­the allegations in the article of undue influence and other issues­are beyond the scope of this website, which concerns Pennsylvania Constitutional Law.  One point in the story, however, does involve constitutional law and the Pennsylvania Supreme Court.  The article states that during  the involvement of former-Justice Zappala in the Association, the “state Supreme Court ruled unconstitutional a ban on campaign contributions from casino operators, heard appeals from losing applicants for casino licenses and ruled in favor of SugarHouse in a dispute over whether developers had a right to build along the Delaware River.”  This suggests that perhaps there was influence peddling going on among the Justices.  As regards the ban on campaign contributions, DePaul v. Commonwealth (Pa. 2009), no such dark explanation is likely or needed.  The opinion finding the contribution ban unconstitutional under Art. I, Section 7, was written by Chief Justice Castille for a 5-1 court.  Castille has been a champion of a strong and independent free speech protection under the Pennsylvania Constitution since the Pap’s A.M. case in 2002 disagreed with the United States Supreme Court and found a ban on nude dancing in Erie unconstitutional.  DePaul is not a great opinion, but nothing about it suggests any undue influence.


A Saturday story by Brad Bumsted in the Tribune Review highlighted the fundamental relationship between federal and state law.  The story, U.S. Department of Labor Probes Pa. Pay, concerned the options open to Governor Ed Rendell given federal law apparently requiring that State employees be paid and a Commonwealth Court opinion, Council 13 v. Commonwealth, 954 A.2d 706 (Pa. Cmwlth. 2008) that held that Art. III, Section 24 requires under all circumstances that money not be paid without a legislative appropriation.  In the story, the Governor's spokesperson, Barry Ciccocioppo, described the Commonwealth Court opinion as holding that the Pennsylvania Constitution is "preeminent" even vis-a-vis federal law.  Of course, this was not Judge Mary Hannah Leavitt's view, nor could it have been given the Supremacy Clause.  Rather, Commonwealth Court did not see a direct conflict between federal and state law.  State law does not require that workers work without pay.  Neither the Pennsylvania Constitution nor federal labor law would be violated if Governor Rendell shut down all state government functions.  That solution may be horrendous public policy, indeed it is, and it may not be a good reading of the State Constitution, but it is not a conflict between state and federal law. (posted 8/5/2009)

In Commonwealth v. Snyder, 963 A.2d 396 (Pa. 2009), the court held that federal due process suppression requires that the defendant show bad faith where merely potentially useful evidence is destroyed before the defense has an opportunity to examine it, no matter whether the evidence is introduced at trial and no matter how useful the evidence is to the prosecution. This holding applies Illinois v. Fisher, 540 U.S. 544 (2004) instead of Commonwealth v. Deans, 610 A.2d 32 (Pa. 1992). Justice Baer concurred, stating that the result was proper in the context of a purely federal due process challenge, but that he would consider returning to Deans' centrality of the evidence standard in a case raising a parallel Pennsylvania constitutional due process challenge. (Once again, note to unaware counsel--always raise the Pennsylvania Constitution).

Two important recent decisions by the Pennsylvania Supreme Court were perfect illustrations of the jurisprudential approach currently called minimalism.  Under this approach, as Chief Justice John Roberts said in a commencement address at Georgetown Law School in 2006, “if it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”  (Quoted by Ronald Dworkin in The New York Review of Books, 4/30/2009).

The two cases, however, illustrate the defects of minimalism.  In one, Clifton v. Allegheny County, Chief Justice Ronald Castille’s majority opinion found the current base year assessment system in Allegheny County unconstitutional as a violation of the tax uniformity clause­see Recent Caselaw­but did not set forth any general explanation of when base years could or could not be used; nor did the opinion delineate the power the General Assembly might have to reform the system.  As a result, the legislature is now considering what to do about the assessment system without any clear guidance.

In the other case, DePaul v. Gaming Control Board, Chief Justice Castille’s majority opinion struck down the current ban on political contributions by gaming industry participants, but did so based on the Preamble of the gaming statute­see Recent Caselaw.  The opinion did not conclude whether a future ban might be constitutional were the statute to be rewritten or whether a cap on contributions might be constitutional.  Again, the legislature is consideration its response without knowing what it can do.

The problem with minimalism is that other political actors must decide what to do after a court issues an opinion.  Assuming good faith, a Supreme Court should be giving guidance for the future.  That requires more than just deciding a case.  It requires an explanation of the decision in general terms that may be relied on in the future.


Despite the claims of some public officials, Chief Justice Castille's majority opinion in Clifton v. Allegheny County, the case involving the Allegheny property tax assessment system (see caselaw) clearly does require a more or less immediate reassessment: "We agree that reassessment is required." The Court only conditioned the reassessment as needing a "realistic timeframe." What the opinion fails to do is resolve the issue of the status of property tax base years in any other county, or even in Allegheny County in the future. This omission was the basis of the disagreement between Justice Baer concurrence and the majority.


In Kerr v. Pennsylvania State Board of Dentistry, 960 A.2d 427 (Pa. 2008), the Court, per Justice McCaffery, holds that the federal exclusionary rule does not apply in the civil disciplinary proceeding; of interest to students of Pennsylvania Constitutional law, Chief Justice Castille and Justice Baer engage in dueling concurrences on the question of whether a different result might obtain under the Pennsylvania Constitution; Chief Justice Castille's view is that there is as yet no exclusionary rule under the Pennsylvania Constitution.


The Pennsylvania Supreme Court restated in Commonwealth v. McMullen (see caselaw) that any procedural statute passed by the General Assembly is unconstitutional, not just one that is inconsistent with a rule promulgated by the court.  This position ignores the actual language of Art. V, section 10(c) of the Constitution, which provides that "All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions."  Not only does that language suggest that laws not inconsistent with rules are not suspended, it literally states that statutes governing procedure are suspended only "to the extent" that they are inconsistent with the rules.  Thus, consistent portions of procedural statutes are not suspended.  To agree with the Court, one would have to hold that there are two kinds of procedural statutes: those that are consistent with the rules, which are merely unconstitutional, and those that are inconsistent with the rules, which are both unconstitutional and suspended.  Of course, there is no textual support for such a position.  The rulemaking power was given to the court not exclusively, but as a shared power.  Since procedural statutes are generally within legislative competency, there was no need for the Constitution to expressly state that the General Assembly also has a procedural lawmaking power.


Some members of the Pittsburgh City Council have a strange view of their oaths of office, which presumably include a pledge to defend the Constitutions of the United States and Pennsylvania.  Council passed a gun regulation on November 24 requiring that gun owners report a lost or stolen firearm within 24 hours or potentially face a $500 fine.  The measure is almost certainly unconstitutional as a conflict with a State statute that prohibits local governments from "in any manner" regulating lawful ownership of firearms.  This is the statute that was held to preempt the Philadelphia and Pittsburgh bans on assault weapons in Ortiz v. Commonwealth (Pa. 1996).  Rich Lord of the Post-Gazette quoted Councilwoman Tonya Payne as saying, "Who really cares about it being unconstitutional?"  Well, she should, for one.


Bus riders and citizens may perhaps be excused from wondering why the transit strike in Allegheny County has not happened yet.  Undoubtedly the reasons are many.  But one question that the media has not asked is, what could the union possibly gain from a strike?  This question arises when the lesson of the last transit strike is considered.  That strike ended in an injunction without binding arbitration when the Pennsylvania Supreme Court ruled that a statutory restriction that limited lawsuits to PAT to end a strike, violated Art. I, section 11 of the Pennsylvania Constitution. Masloff v. Port Auth. of Allegheny Cty. (Pa. 1992).  Unless the statutory framework has since been changed,  and I don't remember hearing that it has been, any transit strike will be met rather quickly by a lawsuit by either the City or the County alleging a clear and present danger to the health, safety and welfare of the citizens.  If such a suit is filed, one would expect a judge eventually to make this finding.  At that point, the strike will be enjoined and ended without any gain by the union.  PAT need only sit tight.  At least, that is what happened in 1992.  Why would it not happen again?  So, how can the union win by striking?


Justice Baer's opinion in Konidaris...(see Caselaw, Article I, section 11) relies heavily on Donald Marritz' chapter in Gormley, et al, The Pennsylvania Constitution (2004).


In rejecting an argument that local government in Pennsylvania has constitutional status independent of the General Assembly, Commonwealth Court Judge Leavitt, for a unanimous panel, cited Ken Gormley, et al, The Pennsylvania Constitution. Com., Office of Atty.
Gen. ex rel. Corbett v. East Brunswick Township (September 23, 2008).


Jubelirer v. Rendell, __ A.2d __ (Pa. 8/19/2008), per Castille, C.J., seems to confirm that the Edmunds four-factor analysis will only be used in State constitutional analysis of provisions parallel to those found in the United States Constitution.  On the merits of the case the Court held that Art. IV, section 16 does not permit the Governor to veto language defining a specific appropriation unless the Governor vetoes the funding itself.  [Thanks to Donald Marritz for the heads up.]  Some of the language concerning Edmunds follows:

"[W]e have been precise in ex plaining that it is when a matter calls for this kind of comparative constitutional analysis that  we turn to the four Edmunds factors for guidance.....In contrast, this Court is sometimes presented with cases requiring us to interpret a provision of the Pennsylvania Constitution that lacks a counterpart in the U.S. Constitution. In such cases, because there is no federal constitutional text or federal caselaw to consider, we have not engaged in the four-factor analysis set forth in Edmunds."


The 6/23/2008 press release by The Administrative Office of Pennsylvania Courts announcing a State Supreme Court order revising procedures for requesting and accessing State courts financial records tried to avoid the issue of separation of power to regulate in this field.  The press release called the changes "consistent" with recent changes in the State Right to Know Law, but also maintained that the changes were consistent with the "supervisory and administrative authority of the Supreme Court."  Thus the press release avoids the State constitutional question of legislative authority to regulate the State courts.


Recent Pennsylvania caselaw shows a narrowing and weakening of the analytical framework for interpretation of the Pennsylvania Constitution articulated in Commonwealth v. Edmunds, (Pa. 1991) and more or less followed since then in Pennsylvania Supreme Court opinions.  For one thing, the Court itself recently limited the scope of one of the four factors, the policy prong, to uniquely Pennsylvania considerations, which had not been the focus in Edmunds itself.  See discussion in Commentary, infra, of Commonwealth v. Russo.  Now, a Superior Court panel has resurrected the methodology of Commonwealth v. Gray (Pa. 1985), which required a "compelling reason" to expand a federal right under the Pennsylvania Constitution.  See Commonwealth v. Grahame (Pa.Super 2008) in rejecting a claim of right under Art. I, section 8.  While the Pennsylvania Supreme Court has not followed this methodology of compelling reasons since Edmunds was decided, the Court has never expressly stated that Gray's method is no longer the controlling precedent.  In fact, Edmunds cited Gray without mentioning its obvious tension with it.  Even though the Supreme Court is limiting Edmunds, it has shown no signs of returning to Gray and the Court should take a look at Superior Court's apparent error in this regard.


In a little noted order, on March 17, 2008, the Pennsylvania Supreme Court amended the Canon 7 of the Code of Judicial Conduct to remove language prohibiting judicial candidates from "appear[ing] to commit" themselves on issues and cases likely to come before the court they are trying to be elected to.  Undoubtedly this change was induced by a federal court decision on October 16, 2007 that interpreted the Canon narrowly to avoid first amendment issues.  See Pennsylvania Family Institute, Inc. v. Celluci [Caselaw: Art. V, section 18].

The amendment of the Canon is worrisome, however, because it was done without prior distribution and without public comment.  It seems to have been done without any input outside the court at all.  These Canons have the force and effect of law.  Law should not be made in secret in a democracy.  This is especially galling because there is obviously no need to rush to amend a provision that usually applies only during election campaigns.  Someone should remind the Justices that they are not monarchs.


The statement attributed to Chief Justice Ronald Castille on 4/19/2008 (see News) that if the Pennsylvania Senate confirms Robert Daniels for Superior Court, the Supreme Court could waive the mandatory retirement rule for him when he turns 70 in the middle of the proposed appointive term, demonstrates the oddity of the Court's understanding that it can appoint senior judges to courts with set numbers of judges that decide cases en banc, such as Commonwealth, Superior and indeed the Supreme Court itself.  The Supreme Court asserted this power with regard its "senior appointment" to the Pennsylvania Supreme Court of Frank Montemuro.  See Commonwealth v. Wetton, 648 A.2d 524 (Pa. 1994).  This asserted power nullifies the Senate's two-third's confirmation vote prerogative in Art. V, section 13(b).  In principle, if the Senate refuses to confirm Daniels, the Court can put him on Superior Court by its action as soon as he turns 70.  Surely, that cannot be right.


The Mississippi Law Journal has just published a symposium entitled "Independent State Grounds: Should State Courts Depart from the Fourth Amendment in Construing Their Own Constitutions, and if so, on What Basis Beyond Simple Disagreement with the United States Supreme Court's Result?"  (77 Miss. L. J. 1 (2007))  This question echoes the effort by Pennsylvania Chief Justice Ronald Castille and Justice Thomas Saylor to place Pennsylvania constitutional jurisprudence on a more secure state-oriented basis.  In his majority opinion in Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), Chief Justice Castille, citing a law review article by Justice Saylor, stated that Pennsylvania should not depart from federal interpretations of parallel constitutional provisions unless there are specific reasons in Pennsylvania history and experience that would justify a different conclusion from that of the United States Supreme Court.

Two issues arise out of this effort.  One is whether the question should be thought as "departing" from federal interpretation or simply, as one of the Symposium authors put it, of interpreting a State's own constitution?  If two courts interpreting similar language differ in their outcomes, who is to say which court "departed" from which?

But the deeper issue is this notion of "simple disagreement".  When the United States Supreme Court decided, in United States v. Miller (1976), that depositors lack a reasonable expectation of privacy in their bank records, the decision, though controversial, was understandable.  Many persons in the bank have access to these financial records.  Nevertheless, many observers disagreed with the decision on the ground that we ought to be able to keep such intimate financial matters away from government eyes unless there is probable cause and perhaps a warrant.  The Pennsylvania Supreme Court so held in Commonwealth v. DeJohn (1979) and it was not the only State Supreme Court to so conclude.

This example shows that reasonable people can disagree with a judgment such as the one about bank records.  It is, in the words of the Symposium, a simple disagreement. This instance shows why such a disagreement must be considered a legitimate ground for State judicial decision.  After all, the task of State judges is to protect legitimate privacy.  If State judges conclude that the United Supreme Court has failed in that task, how can they faithfully do anything other than to "depart" from what is, in their best judgment, an error?  No special State history or experience should be necessary to justify that action.


Justice Baer's discussion of Pennsylvania preemption law in Nutter v. Dougherty brought welcome clarity to this field, despite disagreement on the Court concerning the application of these principles to the case at hand.  But the decision to uphold Philadelphia campaign contribution limits did not address the first amendment issues involved.  Recent decisions by the United States Supreme Court suggest that it is difficult to write constitutional contribution and spending limits of the Philadelphia type.  In other words, the victory won by campaign finance reformers in Philadelphia may prove fleeting.


Justice Castille's majority opinion in Commonwealth v. Russo (see caselaw), which followed the federal open fields doctrine in Art. I, Section 8 analysis, may have changed the way state constitutional "Edmunds" analysis is done, thus changing the way the Pennsylvania Constitution is interpreted in the future.  The Edmunds four factor analysis--text, history, other states and policy--replaced a tendency in such cases as Commonwealth v. Gray (1985), to follow federal constitutional rulings in the absence of some Pennsylvania-specific reason to the contrary.

Commonwealth v. Edmunds (1991) did not apply any such presumption that Pennsylvania would follow federal law. One could say that under Edmunds, the state courts would simply adopt the most persuasive constitutional rule, given text history other states' treatment of the issue.

In Russo, Justice Castille, citing a law review article by Justice Saylor, stated that the policy prong of the Edmunds analysis does not allow a court to reevaluate a federal rule ab initio--because that would allow subjective value judgments by judges--but asks instead whether there is evidence of unique Pennsylvania treatment of the issue at hand.  Justice Castille's approach reintroduces, in effect, the federal presumption that Justices Hutchinson and McDermott had favored years ago.

In addition to that overall change in emphasis, Justice Castille's opinion also narrowed the search for Pennsylvania historical distinctiveness in search cases by pointing out that Pennsylvania did not have an exclusionary rule until forced to do so by Mapp v. Ohio.  Thus, protection of privacy in Pennsylvania prior to Mapp is irrelevant to constitutional analysis since privacy was never protected by exclusion of evidence in a criminal case.

Based on the majority approach in Russo, Pennsylvania search and seizure law is unlikely to break any new ground in the near future.  Russo may also mean that for Pennsylvania constitutional law generally.


On August 17, 2007, the Pennsylvania Supreme Court issued a Per Curiam order suspending Superior Court Judge Michael Joyce with pay "until further order of this Court" in light of an indictment against him in federal court.  The order is reminiscent of the order suspending Supreme Court Justice Rolf Larsen in 1993 upon a presentment against him by a State Grand Jury.  The order raises two questions.  First, since Judge Joyce is running for retention, does the suspension technically remove him from the ballot?  The answer appears to be no.  Nothing in the order refers to the retention election and such a serious result could not be implied.  [Since this entry was written, Judge Joyce has announced that he is withdrawing his name from the retention election and will retire at the end of his current term.]

The second question is why the State Supreme Court thinks it still has this suspension power.  By constitutional amendment in 1993, the people of Pennsylvania created a new judicial discipline system.  Part of that system is a quasi-independent Court of Judicial Discipline, which was given the authority to issue an interim order suspending a judge "against whom has been filed an indictment."  Art. V, section 18(d)(2).  Clearly, the Court of Judicial Discipline could have done what the Supreme Court did with regard to Judge Joyce.  But the power to suspend must also include the power not to suspend.  The language in the Constitution is that "the court may issue an interim order... ."  It is not mandatory.  There is no reason to think the people of Pennsylvania meant this new power to be shared, especially since the 1993 amendment was widely regarded as an attempt to lessen the power of the Pennsylvania Supreme Court over judicial discipline.

In the Joyce order, the Supreme Court referred to recent cases that cited its King's Bench Power prior to 1968 and its judicial supervisory authority under Art. V, section 10(a).  Whatever the merits of such claims of authority before 1993, there is no justification for assuming such authority once the people of Pennsylvania acted.  The grant of constitutional authority to the Court of Judicial Discipline should be regarded as exclusive.



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