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decided: March 21, 1983.


Original jurisdiction in the case of Ann Denoncourt, Donald Tinsman, Linda T. Butler and Rudolph E. Butler, Jr. v. Commonwealth of Pennsylvania, State Ethics Commission.


Michael I. Levin, Cleckner and Fearen, for petitioners.

Sandra S. Christianson, General Counsel, for respondent.

Judges Rogers, Blatt, Williams, Jr. and MacPhail. Opinion by Judge Blatt. Dissenting Opinion by Judge MacPhail.

Author: Blatt

[ 73 Pa. Commw. Page 60]

In this original jurisdiction case, the petitioners*fn1 are challenging the constitutionality of the Act of October 4, 1978 (Act), P.L. 883, 65 P.S. §§ 401-413. They argue that requiring disclosure of the financial interests of a public official's immediate family, Section 5 of the Act, 65 P.S. § 405, violates the constitutional right of privacy of the family members, and that subjecting public officials to criminal penalties if such disclosures are not made, Section 9 of the Act, 65 P.S. § 409, violates their due process rights. Before us now is the petitioners' motion for summary judgment under Pa. R.C.P. No. 1035.

Concerning privacy, it is clear that the general disclosure requirements of the Act are constitutional. Snider v. Shapp, 45 Pa. Commonwealth Ct. 337, 405 A.2d 602 (1979), modified and affirmed sub nom.,

[ 73 Pa. Commw. Page 61]

State Employee's Ass'n v. Walker, 57 Ill. 2d 512, 315 N.E. 2d 9, cert. denied sub nom., Troopers Lodge No. 41 v. Walker, 419 U.S. 1058 (1974), the Illinois Supreme Court upheld a similar act against privacy attacks, stating that the constitutional right of privacy, as discussed in Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1973), is not really involved in this situation inasmuch as those cases are limited to protecting the personal, intimate details of marriage, for example, whether or not to procreate or to rear a child. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). And to extend the rationale to the financial disclosure laws, it was said, would "debase the Griswold opinion". Walker at 524, 315 N.E. 2d at 16.*fn4 See also Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975), appeal dismissed, 424 U.S. 901 (1976) (rejecting privacy argument relying on Walker).*fn5 The Illinois Supreme Court also took notice of the obvious possibility of subverting the government employee's loyalty through gifts to a spouse, and in Walsh, the Maryland Court of Appeals stated that it is common sense and common knowledge that men have been known to conceal assets by placing title in the name of wives, sons, and brothers. While

[ 73 Pa. Commw. Page 63]

    the holdings in these cases are not controlling upon this Court, they are highly persuasive and we believe that we should concur with them.

The Act, of course, must be liberally construed in favor of disclosure. Section 1 of the Act, 65 P.S. § 401. Moreover, all statutes carry a presumption of constitutionality. Section 1922(3) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(3), and the petitioners have a heavy burden of showing unconstitutionality. McCoy v. State Board of Medical Education and Licensure, 37 Pa Commonwealth Ct. 530, 391 A.2d 723 (1978). We do not believe, therefore, that the petitioners have met their burden of showing the spousal reporting requirements of the Act to be an invasion of their privacy rights. The Act is reasonably aimed at achieving a laudable legislative purpose.

The petitioners next argue that the criminal penalties of Section 9 of the Act,*fn6 violate their due process rights inasmuch as they can be subject to fines and imprisonment

[ 73 Pa. Commw. Page 64]

    for failure to disclose information which is unavailable to them. For example, in the case of petitioner Linda T. Butler, because her spouse is unwilling to provide her with financial information relative to his affairs, she will be prosecuted for violations of the Act even though she would comply if able, and that, in essence, the Act creates a strict liability offense. However, the respondent (State Ethics Commission) argues that Section 9, as written, applies only to Sections 3 and 4 of the Act, and that the family disclosure provisions in Section 5 of the Act state clearly that the statement, when filed, shall be signed under penalty of perjury. It is clear that perjury is not a strict liability offense, but, as with most crimes, liability for perjury would include a showing of a voluntary act and a criminal intent.*fn7 In other words, all elements of the offense will need to be proven at trial beyond a reasonable doubt. All defenses to the charge, including lack of the requisite mental state, ignorance, mistake, causation, and the like,*fn8 would be available to the defendant at trial. Due process is clearly satisfied, therefore, inasmuch as the Act does not impose absolute or automatic liability. Moreover, such a construction is consistent with the view that, if the Legislature wishes to make an act a crime without proof of criminal intent, there must be specific language to that effect. Absolute liability must plainly appear in the statute.

[ 73 Pa. Commw. Page 65]

    or nominee for appointment, prior to the election or appointment. Failure to file the statement results in criminal penalties. Section 9 of the Act, 65 P.S. § 409. Contrary to the majority, I would hold the criminal sanctions to be clearly applicable to the person who fails to file a financial statement due to his inability to obtain the required information concerning members of his immediate family.

As stated so well by Justice, now Chief Justice Roberts in his opinion in support of reversal in Snider v. Thornburgh, 496 Pa. 159, 188, 436 A.2d 593, 606 (1981):

The presumption that an individual has knowledge or control of his spouse's financial interests is overbroad, and bears no reasonable, fair and substantial relation to the statute's purpose. Thus, it cannot justify mandatory disqualification from public office and criminal penalties against persons who are unable to comply with the spousal disclosure requirements. For this reason, those statutory provisions that require an individual to disclose the financial interests of his or her spouse over which he has no control must be declared unconstitutional. See 65 P.S. § 413 (severability provision).

There can be no doubt that the public has a right to expect its public officials to avoid conflicts of financial interest in the performance of their official duties. A filing of a statement of financial interest by those persons who have been judicially determined to come within the purview of the Act is a legitimate means of implementing the purpose of the Act. To hold a public employee responsible for complete knowledge and disclosure of his or her spouse's financial interests, however, is an entirely different matter. It is a fact of modern life that many spouses conduct their own financial

[ 73 Pa. Commw. Page 67]

    affairs to the total exclusion of those to whom they are married. There are some minors, undoubtedly, whose financial affairs are not entirely known to their parents. To exclude from public employment or to subject persons to criminal penalties who cannot obtain the necessary financial information from their spouses or minor children, is not only a denial of due process of law, as stated by Chief Justice Roberts, but will deny the Commonwealth the services of many qualified persons as well.

The fear expressed in the cases from other jurisdictions cited in the majority opinion that dishonest persons will conceal their financial interests by vesting them in the names of their wives or children may be realistic but under the terms of the Act, a dishonest person need only ask his or her spouse to move next door or put his or her assets in the hands of children who have reached their majority to avoid the implications of the Act. Such obvious possibilities do not promote the true intent of the Act nor do they promote harmony in the family, a historic public policy consideration in this Commonwealth.

I would hold the provisions of the Act relating to disclosure of financial interests of members of a person's immediate household to be unconstitutional and grant petitioners' motion for summary judgment.

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