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GOVERNOR DICK THORNBURGH AND JAY C. WALDMAN v. H. CRAIG LEWIS (12/30/83)

decided: December 30, 1983.

GOVERNOR DICK THORNBURGH AND JAY C. WALDMAN, APPELLANTS,
v.
H. CRAIG LEWIS, STATE SENATOR, APPELLEE



No. 39 M.C. Appeal Docket 1983, Appeal from the Order of the Commonwealth Court of Pennsylvania, No. 2535 C.D. 1981, dated June 24, 1983, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Zappala

[ 504 Pa. Page 209]

OPINION

The question in this appeal is whether the executive branch of our Commonwealth may, at the request of the Minority Chairman of the Senate Appropriations Committee, be required to supply certain budgetary information. We have jurisdiction of the appeal pursuant to 42 Pa.C.S. § 723(a), the matter having been brought within the Commonwealth Court's original jurisdiction. Because the facts are not in dispute, and there is no disagreement as to the choice of legal precepts, only their application, the standard of our review of the Commonwealth Court's interpretation of the applicable statutes is plenary.

On August 14, 1981, the Appellee, Senator H. Craig Lewis, acting in his capacity as Minority Chairman of the Senate Appropriations Committee, issued a request in writing to all Cabinet Secretaries of the Commonwealth of Pennsylvania for personnel information concerning individuals employed as Legal Counsel within each Department. He requested the name, city of residence, date of employment, salary range of position, current salary, salary at time of appointment, and terminations in complement since October 31, 1980. On August 18, 1981, the Appellee issued a similar request in writing to certain Directors of Executive Agencies, Authorities, and Boards, for personnel information concerning individuals or law firms retained as Legal Counsel, Bond Counsel, or Outside Counsel. Executive Deputy General Counsel to the governor, Robert S. Ross, Jr., issued a written directive to all Members of the Cabinet and Directors of Executive Agencies on August 21, 1981, requesting that no information be released in response to the aforementioned letters until the General Counsel, Jay Waldman (Appellant), had the opportunity to review the requests. On August 26, 1981, the Appellee directed a letter to Governor Richard Thornburgh (Appellant), protesting that this directive denied him budgetary information he was seeking in his capacity as Minority Chairman of the Senate Appropriations Committee. He

[ 504 Pa. Page 210]

    asked the Governor to rescind the directive in order to allow Cabinet Secretaries and Executive Agency Heads to respond to his request. Governor Thornburgh did not respond. On September 3, 1981, the Appellee renewed his request to all Cabinet Secretaries and Directors of Executive Agencies for personnel information as outlined in his original letters. On September 10, 1981, Mr. Ross wrote to the Appellee stating that his request for such information would be more appropriately addressed to the Office of General Counsel and the Office of Budget and Administration. He further informed the Appellee that these two offices were considering his request in light of other responsibilities and priorities. On September 16, 1981, Vincent P. Carocci, Executive Assistant to Senator Lewis, upon Appellee's direction issued an official request for the budgetary information to the Office of General Counsel. The Appellee renewed his request to the Governor on January 8, 1982. The Governor did not reply, but Appellant Waldman replied that the information had not been refused and offered Senator Lewis the opportunity to inspect personnel records in the Office of Budget and Administration.

The Appellee filed a Petition for Review in Commonwealth Court on October 15, 1981, requesting that the court, by way of specific relief, order the Governor and the General Counsel to provide him with the requested budgetary information. This appeal is taken from that court's Order of June 24, 1983 directing the Appellants to provide the Appellee with the requested data as specified in the Order.

Appellants first argue that the underlying question, whether the Governor is required to supply certain budgetary data on request of the Minority Chairman of the Senate Appropriations Committee, is a non-justiciable political question. The applicable legal precepts are not in dispute. In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the United States Supreme Court enunciated guidelines useful in discerning whether a case presents a "political question." This Court has made use of those guidelines

[ 504 Pa. Page 211]

    in determining whether a given claim presents issues which the Court should refrain from deciding. Zemprelli v. Davis, 496 Pa. 247, 436 A.2d 1165 (1981); Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977).

In Baker v. Carr it was said that each of the several formulations which may be used to describe a political question

     has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217, 82 S.Ct. at 710.

The Appellants argue that each of the first three of these elements is apparent in this case. The first is said to exist because under the Pennsylvania Constitution the preparation, enactment, and ongoing review of the budget is a matter for the Governor and for the General Assembly, not for the Judiciary. The Appellants cite Article III of the Constitution as demonstrating that the General Assembly must enact the budget as it does any other legislation; Article IV, Sections 15 and 16 as showing that the Governor must approve or veto a budget bill, or disapprove only specific items of the bill; and Article VIII, Section 12 as imposing on the Governor the duty to submit his budget to the General Assembly. These provisions, argue the Appellants, present a "textually demonstrable constitutional commitment to a co-ordinate political department." This argument,

[ 504 Pa. Page 212]

    however, is made in the abstract, in general terms. It says no more than that the question presented relates to budgetary matters, that the Constitution gives the Judiciary no role in the budgetary process, and that therefore the Court must refrain from deciding the question. This generality "obscure[s] the need for case-by-case inquiry," Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706, and ignores this Court's ...


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