Original Jurisdiction in the case of John Kennedy, citizen, and Bertram W. Olley and Daniel L. Schubert v. Commonwealth of Pennsylvania et al.
John Kennedy, with him, Bertram W. Olley and Daniel L. Schubert, for petitioners.
Gregory R. Neuhauser, Senior Deputy Attorney General, with him, John G. Knorr, III, Chief Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent, Commonwealth of Pennsylvania, and The State Treasurer.
C. Clark Hodgson, Jr., with him, Ursula B. Bartels, Stradley, Ronon, Stevens & Young, for respondents, The Senate and The House of Representatives of the Commonwealth of Pennsylvania, Robert C. Jubelirer, K. Leroy Irvis, James J. Manderino, Max Pievsky, Matthew J. Ryan, Richard A. Tilghman, F. Joseph Loeper and J. William Lincoln.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and McGinley. Opinion by Judge Doyle. Dissenting and Concurring Opinion by Judge Craig. Judge MacPhail joins this dissent.
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Before us for disposition are preliminary objections in the nature of demurrers filed by the House of Representatives and the Senate of Pennsylvania and certain officers thereof (collectively the Legislature) and by the Commonwealth and the State Treasurer (collectively the Commonwealth) to a complaint addressed to our original jurisdiction. That complaint was filed by Representative John Kennedy, Bertram Olley and Daniel L. Schubert (collectively Petitioners) who brought suit as citizens and taxpayers of the Commonwealth. In their complaint they seek to challenge, on various grounds, the constitutionality of House Bill No. 1288 which later became Act 28 of 1987 (Act). More precisely, they challenge
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an amendment to that bill which, inter alia, increased the salaries of the judiciary, certain Commonwealth officials and members of the Legislature and certain officers thereof. The bill did not provide an increase in salary for those individuals currently serving in the Legislature; it did, however, provide for such an increase effective after the next election which necessarily included some of the members of the Legislature who voted upon the legislation. With respect to those members who were serving a current term, the bill provided for unvouchered expense increases of $1,000 per month for the period from July 1, 1987 through November 30, 1988. This $1,000 per month unvouchered expense increase is the identical amount of the salary increase which was to become effective after the election. The bill also contained other unvouchered expense allowances for certain officers of the Legislature. Finally, the bill contained a severability provision declaring that if any portion of the Act were held invalid, the entire Act would be void. As noted above, this bill was enacted into law.
Petitioners challenge this piece of legislation on various grounds, viz., that the unvouchered expenses actually constitute a salary and that raising the salary of legislators while they are in office is forbidden by the Pennsylvania Constitution; that the members who voted on the bill did not first disclose their pecuniary interests in the matter and that they voted on the legislation where they had such an interest in violation of the Pennsylvania Constitution; and that the nonseverability clause is violative of the Pennsylvania Constitution in that (a) it effectively denies those seeking to challenge it legal representation, (b) it exerts political pressure upon the judiciary, and (c) it is, in any event, void as against public policy. Petitioners seek as relief (1) a declaration that the pay raises and unvouchered expense allowances
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to the Legislature are unconstitutional, (2) an order directing repayment to the Commonwealth Treasury of any payments made to members under the Act, (3) an order granting interest on the money and costs for the lawsuit, (4) an order restraining the Treasurer of the Commonwealth from making any more payments to the Legislature from the Commonwealth Treasury, and (5) an order directing the members of the Legislature to reimburse the Commonwealth immediately for all payments received pursuant to the Act.
Separate preliminary objections in the nature of demurrers were filed, one by the Legislature and one by the Commonwealth. The Legislature maintains that as to it the instant suit is barred by the Speech or Debate Clause of our State Constitution. The Commonwealth contends that Petitioners' complaint fails to state a cause of action and that the Commonwealth defendants are "immune by virtue of sovereign and official immunity from an order directing repayment with interest." We shall address each of the demurrers separately keeping in mind that when ruling upon preliminary objections in the nature of a demurrer we must accept as true all material and relevant facts that are well pled in Petitioners' complaint and all inferences reasonably deducible therefrom, but not conclusions of law. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977).
The Legislature's Preliminary Objections
The Legislature asserts that with respect to it the instant suit is barred by the Speech or Debate Clause of Article II, Section 15 of the Pennsylvania Constitution. That provision pertinently provides:
The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the
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peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.
In Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986), certain taxpayers challenged on constitutional grounds an act establishing the salaries and compensation of, inter alia, the Legislature. As here, the taxpayers there sought to have the act declared unconstitutional and requested both recoupment by the Commonwealth of monies paid and an injunction enjoining further payment. And, as here, the Legislature maintained that the Speech or Debate Clause barred the suit. In addressing this issue, Chief Justice Nix wrote:
In Consumer Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977), we determined that the Pennsylvania Speech and Debate Clause, like its federal counterpart, should be broadly interpreted to protect legislators from judicial interference with their legitimate legislative activities, and that even where the activity questioned is not literally speech or debate, a court must determine whether it falls within the 'legitimate legislative sphere.' . . . We further reasoned . . . that although we are not bound by the cases interpreting the federal speech and debate clause, those cases provide guidance in formulating the policy considerations underlying the Pennsylvania Speech and Debate Clause. . . . We set forth those federal policy considerations we deemed relevant to an analysis under the Pennsylvania Speech and Debate Clause:
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. . . The Supreme Court has stated that the Clause is designed to protect 'the independence and integrity of the legislature.' . . . The legislative immunity created by the Clause 'insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation.'
We believe that nothing is more basic to the independence and integrity of the legislature than its ability to pass legislation. Should we hold today that legislators can be held personally liable for disbursements under a duly enacted bill subsequently challenged as unconstitutional, it would indeed impede the ability of the legislators to represent the interests of their constituents because of the fear that they will be later called to task in the courts for that representation. . . . As noted by the Commonwealth ...