IN RE: AMENDMENT TO THE PENNSYLVANIA RACE HORSE DEVELOPMENT AND GAMING ACT PETITION OF: PENNSYLVANIA SENATE, SENATOR JOSEPH SCARNATI III, SENATOR JAKE CORMAN, AND SENATOR JAY COSTA
NOW, this 20th day of January, 2017, the Application for
Extraordinary or King's Bench Relief is GRANTED. The stay
of this Court's decision in Mount Airy #1, LLC v.
Pennsylvania Dep't of Revenue, 2016 WL 6210519 (Pa.
2016), is EXTENDED until May 26, 2017.
Justice Wecht files a dissenting statement.
Mount Airy # 1, LLC v. Pennsylvania Department of
Revenue, 2016 WL 6210519 (Pa. Sept. 28, 2016), this
Court struck down a key portion of the Pennsylvania Race
Horse Development and Gaming Act (the "Act").
Specifically, we held that the Act's "local share
assessment" (a tax imposed upon slot machine revenue)
violates the Uniformity Clause of the Pennsylvania
Constitution. Knowing that several counties and
municipalities, which ultimately receive the local share
assessment's proceeds, rely upon such revenue to fund
important public services, we took the unusual step of
staying our decision for 120 days in order to afford the
General Assembly an opportunity to enact remedial
legislation. It has failed to do so.
January 12, 2017, two weeks before the scheduled expiration
of our stay, Petitioners (collectively, "the
Senators") filed with this Court an application for
extraordinary relief, wherein they assert that our four-month
stay was insufficient. Today, the Court grants the
Senators' application, and extends our stay for an
additional 120 days. Respectfully, I must dissent from the
Court's order, which, in casting a lifeline to the
General Assembly, enmeshes this Court in the legislative
process and invites future order-bargaining.
their application for relief, the Senators set forth myriad
reasons for the General Assembly's failure to amend the
Act within the 120 days that this Court
allowed. For example, the Senators underscore that
only twelve legislative "session days" were
scheduled during the relevant 120-day period (omitting the
fact that other days could have been added at the will of the
Senate). They also note that the Senate generally
disfavors enacting legislation during the so-called
"lame duck session" (although it certainly can do
so and presumably continues to go about the people's
business). In short, the Senators paint a picture of a
legislative body that simply could not find the time to enact
a constitutional local share assessment.
fact, the General Assembly had ample opportunity to amend the
Act; it simply lacked the political will to do
Indeed, as the Senators acknowledge, the Senate swiftly
passed a temporary "fix" to the Act's tax
scheme in October 2016, only one month after our decision in
Mount Airy. That legislation would have imposed a
slot-machine tax structure different from the one that we
struck down in Mount Airy, and would have expired on
May 1, 2017, thereby allowing an interim period for crafting
of a final bill. See H.B. 1887 PN 4140 (2015-2016).
That the Senate's proposed legislation did not become law
has nothing to do with this Court, nor with the number of
scheduled session days. The reason lies elsewhere.
of passing the Senate's proposal, the House further
amended the bill to include language that, among other
things, would legalize Internet gambling, regulate fantasy
sports betting, and allow gaming in some of
Pennsylvania's airports. See H.B. 1887 PN 4145
(2015-2016). This was not the first time that the House
passed such a measure. In June 2016, approximately three
months before we issued our decision in Mount Airy,
the House passed a comprehensive bill that similarly would
have expanded legal gambling within the Commonwealth.
See H.B. 2150 PN 3607 (2015-2016) (providing for
expanded gambling in the Commonwealth, including sports
wagering, "interactive gaming, " and slot machines
in qualified airports). The Senate, which has long disfavored
a sweeping gambling expansion, never took up the bill.
House could have enacted the Senate's temporary
no-strings-attached legislation. It did not. Instead, the
House added to the proposal a set of reforms that the Senate
already had rebuffed in the past. No conference committee was
convened to attempt reconciliation of the Senate and House
measures. And the problem apparently languished. Now, with
three session days remaining until our stay in Mount
Airy expires, the Senators-having failed to convince
their colleagues in the House to keep slot-machine tax
revenue flowing to counties and municipalities until May
2017- turn to this Court with a request for still more time.
Stalled in a political traffic jam of their own making, the
legislators ask this Court to build them a detour. We should
decline to do so.
important to note that the relief the Court grants today is
anything but a routine extension of time. Although extending
our stay here is nonprecedential in theory, the message sent
to the General Assembly-that the decisions this Court issues
can be negotiated post hoc-doubtless will endure. Having
granted the Senators' application for relief, in other
words, these sorts of requests likely will become the rule
rather than the exception.
more important, staying our decision in Mount Airy
effectively allows the Commonwealth of Pennsylvania to defy
the Constitution of Pennsylvania, albeit for a limited time.
Put differently, as long as our stay continues in effect,
some entities will be required to pay a tax that this Court
has declared unconstitutional. Mount Airy, 2016 WL
6210519, at *5. That is an extraordinary imposition on
taxpayers, as well as a derogation, however temporary, of
this Court's authority "to say what the law
is." A stay that countenances continued
collection of an unconstitutional tax is a tool that the
Court should wield with extreme caution and humility. It
bears remembering that the coercive power of the state stands
behind a tax law. Where the law is unconstitutional, the
judiciary should be loath to allow the government to
perpetuate the imposition of that power on citizens.
not doubt that the legislative process imposes many difficult
and stressful challenges upon our elected lawmakers. But this
Court should not, and I daresay properly cannot, ease the
burdens of democracy by suspending the Pennsylvania