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decided: October 18, 1976.


Original jurisdiction in the Commonwealth Court of Pennsylvania, in case of Milton J. Shapp, Governor, et al., Petitioners v. Grace M. Sloan, Respondent, and The General Assembly of the Commonwealth of Pennsylvania, Intervening Respondent.


Melvin R. Shuster, Deputy Attorney General, with him J. Justin Blewitt, Jr., Deputy Attorney General, Vincent X. Yakowicz, Solicitor General, and Robert P. Kane, Attorney General, for petitioners.

James M. Marsh, Chief Counsel, for respondent.

Roland Morris, with him Henry T. Reath, and Duane, Morris & Heckscher, for intervening respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by President Judge Bowman.

Author: Bowman

[ 26 Pa. Commw. Page 590]

On July 7, 1976, petitioners*fn1 instituted this action challenging the constitutional validity of two recent Acts of the General Assembly regarding the control and appropriation of Federal augmentation funds.*fn2 The State Treasurer was named as the sole respondent. On July 9, 1976, the law firm of Duane, Morris & Heckscher, purporting to represent the General Assembly, filed an application to allow that body to intervene as a party respondent. Petitioners then filed an answer in opposition to this application. By Order of this Court dated July 13, 1976, intervention was provisionally granted to allow the General Assembly*fn* to participate in a hearing regarding petitioners'

[ 26 Pa. Commw. Page 591]

    motion for temporary relief heretofore acted upon by this Court.*fn3 The General Assembly's application to intervene is now before us on the merits.

When the petitioners initially challenged the intervention of the General Assembly and its representation by Duane, Morris & Heckscher, the latter sought and obtained specific written authorization to represent the General Assembly in these proceedings. Such authorization was signed by the President of the Senate, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, and the Majority Leader of the House of Representatives.

While petitioners do not dispute the standing or the right of the General Assembly to participate in this litigation, they do question the manner in which such participation is sought in this case as well as the retention of private counsel. Specifically, petitioners urge that the General Assembly can exercise its right to intervene only by statute or joint resolution expressing its collective will and not by authority of its majority leadership alone. Further, petitioners argue that there is no statutory provision for the retention of outside counsel by the legislature and that such retention without said statutory provision violates Article III, Section 17, of the Constitution of Pennsylvania.*fn4

The issues raised by petitioners necessarily involve the internal affairs and functioning of the General Assembly, which is, of course, a coequal branch

[ 26 Pa. Commw. Page 592]

    of government under our system of separation of powers. See Stander v. Kelley, 433 Pa. 406, 421, 250 A.2d 474, 482 (1969), and Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949). Profound respect for that system and a recognition of the proper limits of our authority under it dictate the exercise of judicial restraint in this area of inquiry. While mindful of our duty to protect against violations of the Constitution and statutes of this Commonwealth, we will not involve ourselves unnecessarily in the internal affairs of a coequal branch of government.*fn5 With that caveat, we now turn to the substantive issues raised by petitioners.

With regard to the retention of outside counsel, we can find no violation of the Constitution or of statutory law. Assuming arguendo, that outside counsel are "employees" of the General Assembly within the meaning of Article III, Section 17, of the Constitution,*fn6 authority for their retention and payment is provided in the appropriation of contingent funds to the legislative leadership.*fn7 We note that the General Assembly Accounting and Operations Manual, which serves as a guideline for the documentation of expenditures from legislative funds, specifically provides for the use of contingent funds for "professional services." Again, we emphasize that it is not

[ 26 Pa. Commw. Page 593]

    our role to scrutinize how the leadership of a coequal branch of government chooses to spend contingent funds lawfully appropriated for its use.

With respect to the manner in which the General Assembly is attempting to intervene in this case, as distinguished from its right to so intervene, we simply abstain from consideration of this issue for the reasons discussed above. Certainly the letters sent to Duane, Morris & Heckscher by the majority leadership are prima facie authority to represent the General Assembly and to intervene on its behalf. And we see no reason to interfere or question the authority of that leadership to act on behalf of the General Assembly as a whole. Of course, if the members of the General Assembly are of the opinion that the leadership has exceeded its authority or has acted in a manner contrary to the collective will, they are free to take whatever action they deem appropriate.

The application to intervene is granted, and the authority of Duane, Morris & Heckscher to represent the General Assembly is confirmed.


Petition to intervene granted. Authority of counsel confirmed.

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