The Honorable Milton J. Shapp
The Honorable Ernest P. Kline
The Honorable K. Leroy Irvis
Speaker of the House of Representatives
We respectfully submit this direct letter of address as a means of making our views known to you, the representatives of our two coordinate branches of government.*fn1 We do so in order to convey to you as quickly and as precisely as possible our reasons for not complying with the provisions of the Public Agency Open Meeting Law (P.L. 486, No. 175) in our promulgation on November 14, 1978, of Amendments to Rules of Civil Procedure 51, 52 and 76. See our order of that date, No. 53, Civil Procedural Rules Docket No. 5, copy attached. The submission of this direct letter of address in no way suggests any departure from firm precedent against rendering of advisory opinions. Neither does this letter signal any weakening in our commitment that the judiciary not unnecessarily intrude in legislative matters. Rather, in
this special situation in which we, as an institution, are constrained not to follow an expressed mandate of the General Assembly, we feel it incumbent on ourselves as a matter of deepest respect to our coordinate branches to explain that position as promptly as possible. The alternative course would be to await an adversary challenge to our failure to follow the Open Meeting Law. This approach would risk creating and prolonging unnecessary tension between our branches of government. Accordingly, we have chosen this letter of address by which to articulate our decision.
In 1978 the General Assembly explicitly brought the rule-making functions of the Pennsylvania judicial branch within the scope of the Public Agency Open Meeting Law (P.L. 486, No. 175); the General Assembly provided in a statute now codified at 42 Pa.C.S. § 1703, that "[t]he Supreme Court and all other agencies and units of the unified judicial system when exercising the powers to recommend or adopt general rules or other orders in the nature of regulations shall be an agency within the meaning of . . . the Public Agency Open Meeting Law."*fn2 As a consequence of being a "covered agency" under the Open Meeting Law, the Supreme Court, when exercising its rule-making functions, is mandated by the terms of that law to give public notice of its meetings. 65 P.S. § 265, and to keep "open to the public at all times" all of its "meetings or hearings . . . at which formal action is scheduled or taken." 65 P.S. § 262. As a means of enforcing the public meetings requirement, the Open Meeting Law also provides -- in language again made applicable to the judiciary under 42 Pa.C.S. § 1703 -- that "[n]o formal action shall be valid unless such formal action is taken during a public meeting," 65 P.S. § 262, and declares that "[a]ny member of any agency who participates in a meeting or hearing knowing that it is being held or conducted in such a way to intentionally prevent an interested
party from attending or with the intent and purpose of violating this act is guilty of a summary offense and upon conviction thereof shall be sentenced to pay a fine not exceeding $100 plus costs of prosecution." 65 P.S. § 268.
After careful study, it is our conclusion that 42 Pa.C.S. § 1703 is inconsistent with the Pennsylvania Constitution's grant of power to the Supreme Court "to prescribe general rules governing practice, procedure and the conduct of all courts . . . ." Pa.Const., art. V, § 10(c).*fn3 In making the Open Meeting Law applicable to the judiciary when performing its rule-making tasks, the General Assembly has attempted to exert control over one of the relatively few functions that the Pennsylvania Constitution explicitly assigns to the judicial branch of government. While the General Assembly was unquestionably well intentioned in enacting Section 1703, we are unanimously of the view that the provision represents an intrusion by the legislature into the essential functioning of a coordinate branch of government, a violation of the separation of powers doctrine on which responsible and responsive government is so critically dependent.
Prior to 1968, the Pennsylvania Constitution contained no explicit grant of rule-making authority to the Supreme
Court. While judicial rule-making power may well have been inherent in the constitutional scheme,*fn4 the explicit grant of rule-making authority to the judiciary came from the General Assembly. See 17 P.S. § 61.*fn5 Under this statutory grant the rule-making power of the Supreme Court within covered areas was absolute. As distinguished from the situation in other jurisdictions in which statutory provisions articulated schemes explicitly envisioning joint legislative and judicial activity in rule promulgation, see, e. g., 28 U.S.C. § 2072, the Pennsylvania provision delegated the entire procedural rule-making authority with respect to civil actions to the Supreme Court.*fn6 The breadth of this delegation is suggested by the closing paragraph of the statute, providing that "[f]rom and after the effective date of any rule promulgated under this Section . . . the operation of any act of Assembly relating to practice or procedure . . . and inconsistent with such rule, shall be suspended insofar as such act may be inconsistent with such rule." 17 P.S. § 61. Thus, under the statutory provision, procedural rules promulgated by the Supreme Court, without the participation of the legislature, had the full force of law. See Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238, 241 (1968).
Given the scope of the statutory grant, the issue as to whether the Supreme Court's rule-making authority was inherent or whether it stemmed solely from 17 P.S. § 61 was
never put to a conclusive test; as long as the power was there, its source was not of great importance. And in 1968 this already somewhat dormant issue became moot. It was in that year that the Judiciary Article of the Pennsylvania Constitution was altered to grant the Supreme Court in Article V, § 10(c) "the power to prescribe general rules governing practice, procedure and the conduct of all courts." See note 3, supra. Section 10(c) further provides, very much like 17 P.S. § 61, that "[a]ll laws shall be suspended to the extent that they are inconsistent with rules prescribed under [this] provision." While the new Judiciary Article, given the breadth of the grant in 17 P.S. § 61, may have had only a limited impact on the extent of the Supreme Court's rule-making authority, it established the source of that authority -- that source, after 1968, is unquestionably the Constitution.
Even in the pre-1968 era, an argument could have been made that a statute like 42 Pa. C.S. § 1703 applying the Open Meeting Law to the judiciary would have been unconstitutional. In the post-1968 era, that argument becomes compelling. For once it becomes clear -- as it surely is now -- that the rule-making power is vested by the Constitution in the judiciary, any legislative intrusion into that power must be viewed with the greatest of skepticism. And an intrusion which threatens members of the Supreme Court with summary offense sanctions simply for conducting their rule-making deliberations in the ways that they have for years in the past conducted them, is serious enough to constitute a violation of the separation of powers doctrine.
Notwithstanding the explicit language of Article V, § 10(c), four central arguments might be offered in support of Section 1703's constitutionality. An analysis of such positions exposes their respective weaknesses and demonstrates the ...