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05/19/97 JOHN G. BERGDOLL v. HONORABLE YVETTE KANE

May 19, 1997

JOHN G. BERGDOLL, K. ROBIN DAVIS AND GERALD C. GRIMAUD, PETITIONERS
v.
HONORABLE YVETTE KANE, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Before: Honorable James Gardner Colins, President Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge Flaherty. Dissenting Opinion BY Judge Pellegrini. Judges Kelley and Leadbetter join in this Dissenting opinion. Dissenting Opinion BY Judge Kelley.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: May 19, 1997

ORIGINAL JURISDICTION

Before this court in our original jurisdiction are cross motions for judgment on the pleadings or summary judgment filed by John G. Bergdoll, K. Robin Davis, Gerald C. Grimaud (Petitioners), the Pennsylvania Bar Association (PBA), and the respondent, Yvette Kane, Secretary of the Commonwealth of Pennsylvania (Secretary).

This case originated on October 27, 1995, when Petitioners filed an "Application for leave to file Complaint in Quo Warranto" in the Pennsylvania Supreme Court. Petitioners sought to enjoin Secretary from placing on the November 7, 1995 ballot, a proposed amendment to Article I, Section 9 of the Pennsylvania Constitution, changing the rights of persons accused of crimes to confront witnesses against them and allowing the General Assembly to enact laws regarding the manner in which children may testify in criminal proceedings, including the use of videotaped depositions and testimony by closed-circuit television. After Secretary filed an answer and Petitioners filed a reply, the Supreme Court transferred the matter to this court, under our original jurisdiction, citing 42 Pa.C.S. § 761(a)(1).

On November 2, 1995 a hearing was conducted on the requested preliminary injunctive relief. At the hearing, this court granted the application filed by the PBA on November 1, 1995, to intervene. This court then denied the requested preliminary relief, which was affirmed by the Supreme Court on November 6, 1995. On November 7, 1995, a majority of the electorate voted affirmatively on the ballot question.

Petitioners then filed an amended complaint on November 20, 1995. Secretary filed an answer with new matter on November 21, 1995, and Petitioners filed a response thereto on December 18, 1995. Thereafter the parties filed cross motions for judgment on the pleadings or summary judgment, which are presently before us.

A motion for judgment on the pleadings in this court's original jurisdiction is in the nature of a demurrer; all of the opposing party's allegations are viewed as true and only those facts which have been specifically admitted by him may be considered against him. The court may only consider the pleadings themselves and any documents properly attached thereto. Pennsylvania Association of Life Underwriters v. Foster, 147 Pa. Commw. 591, 608 A.2d 1099, 1101 (Pa. Commw. 1992). Pursuant to Pa. R.C.P. 1035(b), a motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment is appropriate in an action for declaratory or injunctive relief. Pennsylvania Medical Providers Assoc. v. Foster, 149 Pa. Commw. 203, 613 A.2d 51, 52 (Pa. Commw. 1992).

The issues before this court are (1) whether Petitioners have standing to challenge the constitutional amendment, (2) whether the ballot question contained two amendments to the Constitution and (3) whether the amendment abrogates a natural right that may not be taken away.

Initially, Secretary maintains that neither the individual Petitioners, who are attorneys, taxpayers and electors in this Commonwealth, nor the PBA, which is a professional association of attorneys, have standing to challenge the constitutionality of the amendment to Article I, Section 9 of the Pennsylvania Constitution. "Generally, in order to have standing, a party must have an interest in the controversy that is distinguishable from the interest shared by other citizens." Sprague v. Casey, 520 Pa. 38, 43, 550 A.2d 184, 187 (1988). The interest must be substantial, direct and immediate. Id. Secretary maintains that a challenge to the constitutionality of the amendment, which modifies the rights of an accused in criminal proceedings, would have to be challenged by a criminal defendant who is affected by it. Plaintiffs can only assert the common interest of all citizens.

The individual Petitioners maintain they have standing as they were unable to vote on the ballot question as it contained two questions but permitted only one answer. In addition, they, as attorneys, along with the PBA, which is comprised of attorneys, are sworn to defend the Constitution and the ballot question, as presented, violated Article XI, Section 1, by posing two amendments in one question. We agree that the Petitioners and PBA have a substantial, direct and immediate interest in the matter, and thus have standing. In addition, we note that this case is distinguishable from Lincoln Party v. General Assembly, 682 A.2d 1326 (Pa. Commw. 1996), wherein this court held that the Lincoln Party did not have standing to challenge the amendment at issue. In that case, the Lincoln Party, an unincorporated association, failed to identify any of its members, the nature of its membership and neglected to assert any direct and immediate harm. Here, the individual Petitioners along with the PBA, an association of attorneys, are sworn to defend the Pennsylvania Constitution, and they along with their clients were and will be directly impacted by the amendment.

As we have determined that Petitioners have standing, our next inquiry is whether the ballot question contained two amendments to the Constitution contained in one question in violation of Article XI, Section 1 which provides that "when two or more amendments shall be submitted they shall be voted upon separately." The ballot question read:

Shall the Pennsylvania Constitution be amended to provide (1) that a person accused of a crime has the right to be "confronted with the witnesses against him," instead of the right to "meet the witnesses face to face," and (2) that the General Assembly may enact laws regarding the manner by which children may testify in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television?

Petitioners argue that this ballot question, and its subsequent passage, amended both Article I, Section 9, the "Confrontation Clause," and Article V, Section 10(c), which grants to the Supreme Court "the power to prescribe general rules governing practice, procedure and the conduct of all courts . . ." We agree.

Although Article V, Section 10(c) is not mentioned, the ballot question, by granting to the General Assembly the authority to enact laws regarding the manner by which children testify at criminal proceedings, has effectively amended Article V, Section 10(c), which vests exclusive authority in the Supreme Court over practice and procedure in our courts. Article V, Section 10(c) provides that "the Supreme Court shall have the power to prescribe general rules governing practice, procedure, and the conduct of all courts." Although Secretary maintains that Article V, Section 10(c) provides only a "general, residual grant of authority to the Supreme Court to exercise general supervisory and administrative authority over the unified judicial system" (Secretary's brief at 11), as enunciated by our Supreme Court, "the Pennsylvania Constitution grants the judiciary - and the judiciary alone - power over rule-making." In re 42 Pa. C.S. § 1703, 482 Pa. 522, 534, 394 A.2d 444, 451 (1978). "There is simply no substantial support for the proposition that the grant of authority in Article V, Section 10(c) is anything other than exclusive." Id. at 529, 394 A.2d at 448.

Although Article V, Section 10(c) imposes restrictions on the Supreme Court's exclusive rule-making authority by stating it may "neither abridge, enlarge nor modify the substantive rights of any litigant," we believe that the manner in which testimony is to be received in court is procedural and thus within the rule-making authority of the Supreme Court. How the testimony of witnesses is to be received in a courtroom, and the choice of the procedures to be employed, i.e., videotaped depositions, closed-circuit television, is a procedural matter which is entrusted to the judiciary under Article V, Section 10(c). "We know of no authority which would vest power in the Legislature to tell the Judiciary how to hear and dispose of a case . . . ." Appeal of Borough of Churchill, 525 Pa. 80, 88, 575 A.2d 550, 554 (1990) (emphasis added).

By asking the voters of Pennsylvania whether the Constitution should be amended to provide a person accused of a crime the right to be confronted with the witness against him, an amendment to Article I, Section 9 and whether the General Assembly should be afforded the right to enact laws concerning the manner in which children testify in criminal proceedings, a procedural function which is controlled by the Supreme Court in accordance with Article V, Section 10, the ...


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