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H. CRAIG LEWIS v. GOVERNOR RICHARD THORNBURGH AND JAY WALDMAN (06/24/83)

decided: June 24, 1983.

H. CRAIG LEWIS, STATE SENATOR, PETITIONER
v.
GOVERNOR RICHARD THORNBURGH AND JAY WALDMAN, RESPONDENTS



Original jurisdiction in the case of H. Craig Lewis, State Senator v. Governor Richard Thornburgh and Jay Waldman.

COUNSEL

Richard J. Welsh, Legal Counsel, Minority Appropriations Committee, for petitioner.

John P. Krill, Deputy General Counsel, for respondents.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Craig. Concurring Opinion by Judge MacPhail.

Author: Craig

[ 75 Pa. Commw. Page 208]

This case, in the nature of an equity proceeding addressed to our original jurisdiction, involves the efforts of petitioner Senator Lewis, Minority Chairman of the Appropriations Committee of the Senate of Pennsylvania, to obtain from the Governor of the Commonwealth certain personnel and fiscal information about all the lawyers on the public payroll or hired by the Executive Branch on public contract.

In Lewis v. Thornburgh, 68 Pa. Commonwealth Ct. 157, 448 A.2d 680 (1982) our court en banc ruled upon the respondents' preliminary objections. We sustained a preliminary objection based upon the absence of original jurisdiction in this court under the Right-To-Know Law, Act of June 21, 1957, P.L. 390, §§ 2, 4, as amended, 65 P.S. §§ 66.2, 66.4, but we overruled the preliminary objection demurring to the petitioner's reliance, in a second count, upon section 620 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 240(a), which requires the Governor, on a monthly basis, to make expenditure data available to the Majority and Minority Chairmen of the Appropriations Committees of the Senate and the House of Representatives. The Governor must provide

[ 75 Pa. Commw. Page 209]

    data relating to personnel positions and expenditures, in the aggregate and by category, "either in finished reports or on computer tapes," as those chairmen shall request. Subsection (a) concludes with the provision most directly involved here:

In addition to the above specified budgetary data, the Governor shall make available any other budgetary data as may be requested from time to time by the Majority and Minority Chairmen of the Appropriations Committees of the Senate and House of Representatives.

We also considered the Governor's contention that the issue under the Administrative Code provision presented a non-judicial political controversy. For reasons discussed below in connection with respondents' exceptions to conclusions of law, we rejected that contention, with Judge MacPhail of our court dissenting on that point alone and concurring otherwise.

After considering the preliminary objections, this court responded to the Senator's subsequent motion for summary judgment by proceeding under Pa. R.C.P. 1035(c) to make an order specifying the facts that appeared without substantial controversy and then, following pre-trial procedure, to hold a hearing which completed the record.

The facts, as ably presented by counsel for both sides -- by stipulations and exhibits and through the testimony of skilled state recordkeeping personnel -- were clear and not substantially controverted on the record.

The chancellor made findings of fact and conclusions of law, discussed in connection with the exceptions below, and issued a decree nisi requiring that the requested information be provided in accordance with the Administrative Code.

[ 75 Pa. Commw. Page 210]

The respondents' exceptions, thereafter filed, have been briefed and argued to the court en banc. Our disposition of them follows.

Exceptions to Findings of Fact

Initially, no exceptions are taken to findings 1 and 2 as follows:

1. The petitioner is Senator H. Craig Lewis, Minority Chairman of the Appropriations Committee of the Senate of Pennsylvania, and the respondents are the Governor of the Commonwealth, Dick Thornburgh, and his General Counsel Jay Waldman.

2. By letter of August 14, 1981, the Senator requested from all cabinet secretaries of the Commonwealth, as to persons employed as legal counsel, the eight items of information first listed above, which listing is incorporated into this finding by reference.

Finding No. 3 is:

3. By letter of August 19, 1981, the Senator asked all executive agencies, authorities and boards for information concerning employed legal counsel and bond or outside counsel retained upon contract, respectively seeking as to legal counsel the five items of information noted secondly above and, as to bond or outside counsel, the four items of information listed above at the same point, both of which listings are incorporated into this finding by reference.

Respondents' exceptions 1 and 5 object only to the use of the word "all" in referring to the number of agencies to which the Senator directed information requests. We sustain this exception to the extent of deleting the word "all" and substituting "fifteen major" so that the reference is to "fifteen major" executive agencies, authorities and boards.

[ 75 Pa. Commw. Page 211]

The fourth finding reads as follows:

4. As contained in exhibits authenticated by mutual stipulation and received in evidence, the chronology of the correspondence thereafter is as follows:

August 21, 1981 The Executive Deputy General Counsel requested of cabinet members and executive agency heads "that no information be released to Senator Lewis until the General Counsel has returned and has had an opportunity to review the request."

August 26, 1981 The Senator submitted the request to the Governor, protesting the memorandum of the Executive Deputy General Counsel.

September 3, 1981 The Senator wrote again to cabinet members and executive agency heads, renewing the request notwithstanding the memorandum from the Executive Deputy General Counsel.

September 10, 1981 The Governor did not reply to the Senator's August 26th letter to him, but the Executive Deputy General Counsel wrote to the Senator that the "raw data" is available in the State Library, for "research" by the Senator's own staff.

September 16, 1981 The Senator's Executive Assistant responded to the Executive Deputy General Counsel, stating that the Senator's staff had attempted to obtain the information at the State Library and had been unable to obtain information which was complete and current.

January 8, 1982 The Senator wrote to the Governor, renewing the requests for information.

January 20, 1982 The Governor did not reply, but his General Counsel replied that the information had not been refused, but that it would

[ 75 Pa. Commw. Page 212]

    take time. The General Counsel offered to provide only information concerning attorneys in the Office of General Counsel, referring the Senator to the inspection of records in the Office of Budget and Administration as to attorneys in the executive agencies.

January 26, 1982 The Senator replied to the General Counsel, stating that the request also involved the executive departments and outside counsel and thus was beyond the information offered.

January 21, 1982 The General Counsel replied to the Senator that "for legal and policy reasons," the transmission of certain data may not be appropriate, but suggesting discussion and delay of the proceedings in this court.

August 9, 1982 The Senator wrote to the General Counsel, following this court's decision on preliminary objections, renewing the request.

August 17, 1982 The Senator wrote to the Governor renewing the request.

August 25, 1982 The Governor did not reply, but the General Counsel replied, stating that data could be inspected and that granting the request would moot the case in this court.

October 4, 1982 Senator Edward P. Zemprelli of the Senate of Pennsylvania wrote to State Treasurer R. Budd Dwyer requesting information on current contracts with private law firms or private lawyers.

October 19, 1982 The State Treasurer submitted information on lawyers or law firms hired, the agency, the nature of the work, and the total value and period of the contract, from the information files of the Treasury Department.

[ 75 Pa. Commw. Page 213]

October 25, 1982 Senator Eugene F. Scanlon wrote to the State Treasurer, noting that the listing furnished October 19 did not contain a certain contract of June 29, 1982 between the Department of General Services and Bruce W. Kauffman, Esquire.

October 29, 1982 The State Treasurer replied to Senator Scanlon stating that the Treasurer's contract information bureau had not received the contract in question, but that it had been received by the Bureau of Audits and Administration on October 26, 1982

Although no exception is taken to the item dated August 21, 1981 as stated above, respondents' exception No. 2 contends that the chancellor, in discussion, should not have characterized the memorandum of the General Counsel's office as "directing" cabinet members and executive agency heads not to supply the information. Although the letter from the Executive Deputy General Counsel did state, as found in Finding No. 4, "I am requesting that no information be released. . . .", it is wholly unrealistic to contend that such a request from the office of the Governor's General Counsel does not have the effect of a ...


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