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Pennsylvania State Association of Jury v. Commonwealth of Pennsylvania and Honorable Thomas Corbett

July 26, 2012

PENNSYLVANIA STATE ASSOCIATION OF JURY COMMISSIONERS AND LARRY A. THOMSON, PRESIDENT PENNSYLVANIA STATE ASSOCIATION OF JURY COMMISSIONERS AND ELECTED JURY COMMISSIONER IN BUTLER COUNTY AND MARTHA S. SMITH, DULY ELECTED JURY COMMISSIONER OF CHESTER COUNTY AND MARY JANE DELLAFIORA, DULY ELECTED JURY COMMISSIONER FOR INDIANA COUNTY AND G. RICHARD ZIMMERMAN, DULY ELECTED JURY COMMISSIONER FOR WASHINGTON COUNTY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA AND HONORABLE THOMAS CORBETT, GOVERNOR OF PENNSYLVANIA AND HONORABLE LINDA KELLY, ATTORNEY GENERAL OF PENNSYLVANIA, RESPONDENTS



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: April 18, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON

In this original jurisdiction matter, Petitioners, Pennsylvania State Association of Jury Commissioners, its President, Larry A. Thomson, and individual jury commissioners of various Pennsylvania counties (hereafter collectively "Jury Commissioners Association") seek declaratory and injunctive

relief relating to Act 108 of 2011 (Act 108).*fn1 After the pleadings in this matter closed, the Jury Commissioners Association and Intervenor County Commissioners Association of Pennsylvania (County Commissioners)*fn2 filed motions for judgment on the pleadings, which are now before this Court.

The title of Act 108 describes it as an act that amends the County Code,*fn3 "further providing for applicability, for the abolishment of the office of jury commissioner and for sales of personal property and surplus farm products."*fn4 Thus, the title of Act 108 provides a description of the provisions of the County Code that it amended. The subsequent provisions of Act 108 then identify the amended provisions as Sections 102(a), 401, and 1805(b) of the County Code. The amendments have the effect of granting counties (through the county commissioners or other governing body) additional authority with regard to elected officers and contracts.*fn5 Specifically, Act 108 amended Section 401 of the County Code, pertaining to "Enumeration of Elected Officers," to add subsection (f), which provides county commissioners with the additional authority to abolish the office of jury commissioner in second class A counties or counties of the third through eighth class.*fn6 Subsection (f) provides:

After review of the procedures in effect within the county to ensure that lists of potential jurors are a representative cross section of the community, the governing body of a county of the second class A or third through eighth class may adopt, by a majority vote, a resolution abolishing the office of jury commissioner. Upon approval of the resolution, the office of jury commissioner shall expire at the completion of the current jury commissioners' terms of office. The resolution shall not be passed in any year in which the office of jury commissioner is on the ballot.

Act 108 also amended Section 1805(b) of the County Code, pertaining to "Sales of Personal Property and Surplus Farm Products," to provide county commissioners with additional authority to exercise their power to sell certain county property through online and electronic auctions.*fn7

The Jury Commissioners Association raises several constitutional challenges to Act 108: (1) the Act violates Article III, Section 3 of the Pennsylvania Constitution by addressing more than one subject; (2) the Act violates the separation of powers doctrine and Article V, Sections 1 and 10 of the Pennsylvania Constitution; and (3) the Act violates the due process clause of the Fourteenth Amendment of the United States Constitution on vagueness grounds.

I. ARTICLE III, SECTION 3 OF THE PENNSYLVANIA CONSTITUTION

Article III, Section 3 of the Pennsylvania Constitution provides:

No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.

As our Supreme Court has noted, the "twin requirements" of Article III, Section 3 are "that each bill have only one subject, and that the subject be clearly expressed in the title." City of Philadelphia v. Commonwealth, 575 Pa. 542, 572, 838 A.2d 566, 585 (2003). In City of Philadelphia, our Supreme Court described the reasons why Pennsylvanians incorporated Article III, Section 3 into the Pennsylvania

Constitution of 1874, including distrust of corporate influence upon the General Assembly and a resulting desire to make the deliberative process of legislative enactment more visible to our citizens. Id. at 573-74, 838 A.2d at 585-86. By adopting Article III, Section 3, Pennsylvanians sought to address a number of practices that members of the General Assembly occasionally employed to obtain passage of legislation without subjecting the legislation to an open and deliberative process.*fn8

In City of Philadelphia, our Supreme Court reviewed the analysis that our courts have applied in cases where a party challenged legislation as violating Article III, Section 3. Legislation generally satisfies this provision, the Supreme Court noted, when provisions added to a bill "assist in carrying out a bill's main objective or are otherwise 'germane' to the bill's subject as reflected in its title." Id. at 575, 838 A.2d at 587. The Supreme Court surveyed the developed law on Article III, Section 3 and observed that the courts had shifted from strictly applying the test for "germaneness" to applying a more deferential approach to legislation, whereby the courts validated laws containing more than one topic "so long as those topics can reasonably be viewed as falling under one broad subject." Id. As the Supreme Court summarized: "While this trend is consistent in principle with some early pronouncements of this Court, it has resulted in a situation where germaneness has, in effect, been diluted to the point where it has been assessed according to whether the court can fashion a single, over-arching topic to loosely relate the various subjects included in the statute under review." Id. at 576-77, 838 A.2d at 587.

After reviewing many of those decisions, our Supreme Court expressed the view that "exercising deference by hypothesizing reasonably broad topics in this manner is appropriate to some degree, because it helps ensure that Article III does not become a license for the judiciary to 'exercise a pedantic tyranny over the efforts of the Legislature.'" Id. at 578, 838 A.2d at 588 (quoting Dep't of Transp. v. Estate of Rochez, 511 Pa. 620, 626, 515 A.2d 899, 902 (1986)).

The Supreme Court noted that some limits on such hypothesizing is necessary, because, otherwise, courts could uphold legislation no matter how diverse the topics of particular legislation. Id. at 578, 838 A.2d at 588. In other words, the over-arching subject test could swallow the single-subject requirement whole, rendering Article III, Section 3 inert to address the evils for which Pennsylvanians originally adopted the measure. Id.

The Supreme Court's analysis was ultimately guided by comparing the purposes behind the single-subject requirement (and the evils sought to be avoided by application of the requirement) to the act that was the subject of the appeal:

Last-minute consideration of important measures, logrolling, mixing substantive provisions in omnibus bills, low visibility and hasty enactment of important, and sometimes corrupt, legislation, and the attachment of unrelated provisions to bills in the amendment process-- to name a few of these abuses--led to the adoption of constitutional provisions restricting the legislative process. These constitutional provisions seek generally to require a more open and deliberative state legislative process, one that addresses the merits of legislative proposals in an orderly and rational manner.

The legislation presently under review implicates many of the concerns quoted above. In its 127 pages, SB 1100 contains voluminous and varying provisions; many are substantial, most appeared at the last minute, and some are only hinted at in the title in the vaguest of terms (e.g., "making repeals"), if at all. Thus, if "the purpose of the constitutional requirements relating to the enactment of laws [is] to put the members of the

Assembly and other interested on notice, by the title of the measure submitted, so that they might vote on it with circumspection," that objective was not fulfilled here.

Id. at 578-579, 838 A.2d at 589 (emphasis added; internal citation omitted).

The Supreme Court concluded that the statute at issue in City of Philadelphia failed to satisfy Article III, Section 3, noting that the legislation at issue "implicate[d] many of the concerns" underlying the adoption of this constitutional mandate. Specifically, the Supreme Court observed the "voluminous and varying provisions" of the bill and the critical failure of the title of the legislation to provide notice to legislators of the substance of the provisions. Id. at 579, 838 A.2d at 589. The failure of the title to reflect the various substantive proposals undermined the goals noted above, potentially inhibiting legislators from voting on the measure with "circumspection." Id. (quoting Scudder v. Smith, 331 Pa. 165, 170-71, 200 A. 601, 604 (1938)).

The Supreme Court, in seeking to discern a unifying scheme for the bill, first observed that the title of the proposed legislation stated that one of the objects of the bill was to amend Title 53 of the Pennsylvania Consolidated Statutes, which pertains generally to municipalities. The Supreme Court noted that, while the body of the bill contained provisions affecting municipalities either directly or indirectly, there was "no single unifying subject to which all of the provisions of the act are germane." Id. at 579, 838 A.2d at 589. As examples of provisions of the bill, and considering whether the provisions constituted "disparate subjects" that are "parts of a unifying scheme to accomplish a single purpose," the Supreme Court contrasted a provision restricting political activities of police officers with another provision that authorized parking authorities to undertake mixed-use development projects, and observed that there did not appear to be any logical or legislative nexus between the two provisions. Id.

The Supreme Court also rejected the proffered defense that all the provisions related to the subject of "municipalities:"

[A]s virtually all of local government is a 'municipality,' we find that proposed subject too broad to qualify for single-subject status under Article III, Section 3 .

"municipalities" is the subject of an entire Title of the Pennsylvania Consolidated Statutes. By purporting to make general and diverse changes to that topic, with no other qualifications, SB 1100 is in substance an omnibus bill, whether or not it is called that in name.

Id. at 580, 838 A.2d at 589.*fn9

Our Supreme Court recently issued another significant decision involving a challenge under Article III, Section 3 dealing with a challenge to the Pennsylvania Race Horse Development and Gaming Act, 4 Pa. C.S. §§ 1101-1904 (Gaming Act). In Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth of Pennsylvania, 583 Pa. 275, 877 A.2d 383 (2005) (PAGE), the bill that eventually became the Gaming Act began as a one-page bill from the House of Representatives, relating solely to the delegation to the Pennsylvania State Police of the duty and power to perform criminal history checks and verification of fingerprints for horse industry licensure applicants. After three considerations by the House and two considerations by the Senate, the Senate amended the bill and changed the title of the bill to reflect the amendments. The amended bill grew from one page to 145 pages, including seven chapters and 86 sections. The amended bill created the Pennsylvania Gaming Control Board and provided for the creation of slot machine casinos, the issuance of gambling licenses, the distribution of revenue generated through gambling, the creation of various funds (one of the most notable of which was the Tax Relief Fund), and provisions relating to administration and enforcement and judicial review of disputes.

In PAGE, the Supreme Court observed that the "twin directives" of Article III, Section 3--clear expression of the subject of the legislation in the title of a bill and limitation in the text of a bill to a single subject--are interrelated, but they require separate analysis. PAGE, 583 Pa. at 294, 877 A.2d at 394. The Supreme Court concluded that, unlike the broad subject "municipalities," which could have encompassed a limitless number of subjects, the legislation at issue in PAGE involved "a single unifying subject--the regulation of gaming." Id. at 297, 877 A.2d at 396.

Our Supreme Court set forth the burden associated with a claim that legislation failed to satisfy the requirement that the subject of a bill be clearly expressed in the title of a bill. A party seeking to have legislation deemed invalid based upon a claim the title of a bill fails to comply with this aspect of Article III, Section 3 must demonstrate "either (1) that the legislators and the public were actually deceived as to the act's contents at the time of passage, or (2) that the title on its face is such that no reasonable person would have been on notice as to the act's contents." Id. at 313, 877 A.2d at 406 (quoting Estate of Rochez, 511 Pa. at 627, 515 A.2d at 902). In PAGE, our Supreme Court concluded that the challengers to the Gaming Act failed to demonstrate either of these criteria, because the underlying complaint did not include allegations that the title to the Gaming Act actually deceived any legislator as to the contents of the bill and the title provided reasonable persons with notice of the general subject matter of the bill. Id. at 313, 877 A.2d at 406.*fn10

In this case, the General Assembly's passage of House Bill 1644 likewise complies with these requirements for a bill's title. At the time of the passage, the title specifically referred to the two key provisions contained in the text of the legislation: "abolishment of the office of jury commissioner and sales of personal property and surplus farm products." The complaint contains no averments suggesting that the title deceived legislators or the public at the time House Bill 1644 was passed. Also, as a matter ...


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