Ladd, Aplts. v. Real Estate Commission ( 2020 )

[J-71-2019] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SARA LADD, SAMANTHA HARRIS, AND : No. 33 MAP 2018
POCONO MOUNTAIN VACATION :
PROPERTIES, LLC, : Appeal from the Order of the
: Commonwealth Court at No. 321
Appellants : MD 2017 dated June 4, 2018
: sustaining in part and overruling in
: part the preliminary objections and
v. : dismissing with prejudice the
: Petition for Review.
:
REAL ESTATE COMMISSION OF THE : ARGUED: September 11, 2019
COMMONWEALTH OF PENNSYLVANIA :
AND DEPARTMENT OF STATE (BUREAU :
OF PROFESSIONAL AND :
OCCUPATIONAL AFFAIRS) OF THE :
COMMONWEALTH OF PENNSYLVANIA, :
:
Appellees :
DISSENTING OPINION
JUSTICE WECHT DECIDED: May 19, 2020
The General Assembly did not violate Article I, Section 1 of the Pennsylvania
Constitution1 when it classified short-term vacation-property managers like Appellant
Ladd as real estate brokers for purposes of the Real Estate Licensing and Registration
Act. In concluding otherwise, the learned Majority further entrenches the deeply flawed
“heightened rational basis” test that this Court manufactured in Gambone v.
Commonwealth, 101 A.2d 634, 637 (Pa. 1954). Because I cannot endorse a
1 PA. CONST. art. I, § 1 (“All men are born equally free and independent, and have
certain inherent and indefeasible rights, among which are those of enjoying and defending
life and liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.”).
constitutional standard that encourages courts—under the facade of substantive due
process—to second-guess the wisdom, need, or appropriateness of otherwise valid
legislation, I respectfully dissent.
As I have explained in the past, this Court’s substantive due process jurisprudence
is an historical relic of an era when the United States Supreme Court insisted that the
Constitution forbids lawmakers from interfering with “economic liberty” and the “freedom
of contract.” See Shoul v. Pa. Dep’t of Transp., Bureau of Driver Licensing, 173 A.3d
669, 689 (Pa. 2017) (Wecht, J., concurring) (explaining that early twentieth century due
process decisions arose “in an era during which the Supreme Court of the United States,
under the guise of protecting economic rights, actively struck down state laws because it
disagreed with the economic theory or opinion of the legislatures that passed those
statutes”). To understand Gambone’s shortcomings, one first must understand the United
States Supreme Court’s now-infamous decision in Lochner v. New York, 198 U.S. 45
(1905), where the Court struck down a New York law prohibiting bakery employees from
working more than ten hours per day or sixty hours per week. Those restrictions, the
Court held, violated the Fourteenth Amendment’s2 due process clause because they were
an “unreasonable, unnecessary and arbitrary interference with the right of the individual”
to contract freely. Id. at 56.
Lochner jumpstarted an era of judicial overreach. For many years, and under the
pretext of protecting “economic liberty” and “freedom of contract,” the Supreme Court
routinely struck down laws that a majority of the Court deemed unwise or improvident.
See, e.g., Adkins v. Children’s Hosp., 261 U.S. 525 (1923) (striking down minimum wage
2 See U.S. CONST. amend. XIV (“No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”).
[J-71-2019] [MO: Dougherty, J.] - 2
legislation) (overruled by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)); Coppage
v. Kansas, 241, 236 U.S. 1 (1915) (striking down a law that prohibited “yellow dog”
contracts, in which employees agreed not to join a labor union) (overruled by Phelps
Dodge Corp. v. N.L.R.B., 313 U.S. 177 (1941)). Most now recognize that those decisions
had nothing to do with the text or history of the Constitution; they were based upon nothing
more than the policy preferences of the justices who signed on to them. See Sorrell v.
IMS Health Inc., 564 U.S. 552, 591-92 (2011) (Breyer, J., dissenting) (“[In the Lochner]
era . . . judges scrutinized legislation for its interference with economic liberty. History
shows that the power was much abused and resulted in the constitutionalization of
economic theories preferred by individual jurists.”); accord Confirmation Hearing on the
Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, U.S.
GOVERNMENT PRINTING OFFICE, at 162, available at https://www.govinfo.gov/content/pkg/
gpo-chrg-roberts/pdf/gpo-chrg-roberts.pdf (“You go to a case like the Lochner case. You
can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re
making the law. . . . You can look at that and see that they are substituting their judgment
on a policy matter for what the legislature had said.”).
Even in the moment, many strongly objected to the Supreme Court’s judicial
intrusion into the realm of legislative value judgments. Within the Court, Justices Holmes
and Brandeis were the most vocal critics of this judicial policymaking. In Adkins, for
example, Justice Holmes emphasized that “[t]he criterion of constitutionality is not
whether we believe the law to be for the public good.” Adkins, 261 U.S. at 570 (Holmes,
J., dissenting). And when the Court struck down a New York law limiting the markup that
theater-ticket resellers could charge, Justice Holmes stated:
I think the proper course is to recognize that a state Legislature can do
whatever it sees fit to do unless it is restrained by some express prohibition
in the Constitution of the United States or of the State, and that Courts
should be careful not to extend such prohibitions beyond their obvious
[J-71-2019] [MO: Dougherty, J.] - 3
meaning by reading into them conceptions of public policy that the particular
Court may happen to entertain.
Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 446 (1927) (Holmes,
J., dissenting).
Eventually, Justice Holmes’ view prevailed. Although the decision in West Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937), where the Supreme Court upheld a state
minimum wage law, is commonly cited as the end of the so-called Lochner era, it was not
until 1955—the year after Gambone was decided—that the Supreme Court announced
the death of Lochner. In Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 (1955),
the High Court explained that “[t]he day is gone when this Court uses the Due Process
Clause of the Fourteenth Amendment to strike down state laws, regulatory of business
and industrial conditions, because they may be unwise, improvident, or out of harmony
with a particular school of thought.” Id. at 488. The Court went on to clarify that “[a] law
need not be in every respect logically consistent with its aims to be constitutional. It is
enough that there is an evil at hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct it.” Id. at 487-88.
In Pennsylvania, however, our own Lochner era was just beginning, even as the
federal courts moved toward a more deferential “rational relationship” standard.3 Our
decision in Gambone, for example, considered the constitutionality of a 1951 law that
prohibited the display of gasoline price signs larger than twelve square inches. Gambone,
3 Surprisingly, this Court was not alone in its failure to accept that the Lochner era
had ended. Though most state courts (unlike this Court) eventually stopped subscribing
to Lochner’s economic liberty rationale, many continued to do so “even after the Supreme
Court made it crystal clear that this would constitute an incorrect application of the Due
Process Clause of the Fourteenth Amendment.” Anthony B. Sanders, The “New Judicial
Federalism” Before Its Time: A Comprehensive Review of Economic Substantive Due
Process Under State Constitutional Law Since 1940 and the Reasons for Its Recent
Decline, 55 AM. U. L. REV. 457, 475 (2005); see id. at 478 (explaining that “in the 1940s,
1950s, and 1960s the highest courts of appeal in almost every state struck down state
statutes and local ordinances on economic substantive due process grounds”).
[J-71-2019] [MO: Dougherty, J.] - 4
101 A.2d at 636. Citing a litany of now-overruled Supreme Court decisions, this Court
asserted that:
a law which purports to be an exercise of the police power must not be
unreasonable, unduly oppressive or patently beyond the necessities of the
case, and the means which it employs must have a real and substantial
relation to the objects sought to be attained. Under the guise of protecting
the public interests the legislature may not arbitrarily interfere with private
business or impose unusual and unnecessary restrictions upon lawful
occupations. The question whether any particular statutory provision is so
related to the public good and so reasonable in the means it prescribes as
to justify the exercise of the police power, is one for the judgment, in the first
instance, of the law-making branch of the government, but its final
determination is for the courts.
Id. at 637 (footnote omitted).
Applying this test, the Court flatly declared that prohibiting gasoline dealers from
posting “price signs in excess of a certain prescribed size is wholly unreasonable and
arbitrary and bears no rational relation to public health, safety, morals, or welfare.” Id.
Yet there can be no serious doubt that the Gambone Court was mistaken about the proper
due process inquiry. Indeed, the Court concluded—after announcing that “unreasonable”
and “unduly oppressive” laws are unconstitutional—that the statute in question violated
both Article I of the Pennsylvania Constitution and the Fourteenth Amendment to the
United States Constitution.4 In other words, the Court in Gambone failed to recognize
that federal due process jurisprudence was undergoing a dramatic transformation. It
believed, incorrectly, that cases decided during the peak of the Lochner era remained
good law. See Gambone, 101 A.2d at 637 n.1 (citing the now-overruled decisions in
4 Gambone, 101 A.2d at 638 (“We hold that the provision of the statute forbidding
price signs in excess of the size therein prescribed violates Article I, sections 1 and 9 of
the Constitution of Pennsylvania, [] and also the 14th Amendment to the Constitution of
the United States, and is therefore null and void.”).
[J-71-2019] [MO: Dougherty, J.] - 5
Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928), Weaver v. Palmer Bros. Co., 270
U.S. 402 (1926), and Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924)).
Despite its numerous failings, Gambone quickly embedded itself into our due
process jurisprudence.5 Post-Gambone, this Court—much like the Supreme Court of the
Lochner era—enthusiastically invoked its newfound power to shape public policy
whenever the opportunity arose. To name just a few examples, we struck down a law
prohibiting the sale of carbonated beverages made with a carcinogenic sweetener, Cott
Beverage Corp. v. Horst, 110 A.2d 405 (Pa. 1955), a law banning the sale of low butterfat
milkshakes, Com. ex rel. Woodside v. Sun Ray Drug Co., 116 A.2d 833 (Pa. 1955), a
local ordinance prohibiting the dumping of garbage collected from outside of the township,
Lutz v. Armour, 151 A.2d 108 (Pa. 1959), and a law that prohibited pharmacists from
advertising the prices of dangerous narcotic drugs, Pa. State Bd. of Pharmacy v. Pastor,
272 A.2d 487 (Pa. 1971). See also Simco Sales Serv. of Pa., Inc. v. Lower Merion Twp.
Bd. of Comm’rs, 394 A.2d 642 (Pa. Cmwlth. 1978) (striking down an ordinance banning
ice cream trucks); Fantastic Plastic, Inc. v. City of Pittsburgh, 377 A.2d 1051 (Pa. Cmwlth.
1977) (striking down a city ordinance prohibiting the operation of “bottle clubs” where
patrons could bring their own alcohol to consume while on the premises).
Those decisions, each of which relied upon Gambone, purported to apply the
ordinary rational basis test. Yet the plain language of Gambone departs significantly from
the teachings of modern due process cases. See Washington v. Glucksberg, 521 U.S.
702, 728 (1997) (explaining that a law comports with substantive due process if it is
“rationally related to legitimate government interests”). We finally confronted this
discrepancy in Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003), where we insisted that,
5 Given the opinion’s glaring legal errors and overall lack of depth (the decision
spans only three pages in the official reporter), it is truly remarkable that Gambone went
on to become what is now considered to be a foundational due process decision.
[J-71-2019] [MO: Dougherty, J.] - 6
“[a]lthough the due process guarantees provided by the Pennsylvania Constitution are
substantially coextensive with those provided by the Fourteenth Amendment, a more
restrictive rational basis test is applied under [the Pennsylvania] Constitution.” Id.
But why? There is absolutely nothing in the text or history of our Constitution that
sanctions this judicial second-guessing of legislation.6 Say what you will about the
Lochner decision, but the Supreme Court at least claimed that it was protecting a
constitutional right: an ill-defined “freedom of contract.” Lochner, 198 U.S. at 60.
Gambone and its progeny shed even that dubious pretense. Under our precedent,
Pennsylvania courts are free to question the necessity and reasonableness of all laws—
or any “exercise of the police power,” as the Gambone Court put it—under the guise of
substantive due process. Gambone, 101 A.2d at 636.
Worse still, the Gambone standard—rooted in conceptions of reasonableness and
necessity—is so nebulous that it cannot possibly be applied consistently throughout
different cases and among different courts. See Adkins, 261 U.S. at 568 (Holmes, J.,
dissenting) (noting the “vague contours” of Lochner era due process). To state the
6 The closest that this Court has come to offering a justification for the heightened
rational basis standard was in Pennsylvania State Board of Pharmacy, where—borrowing
from a law review article—we stated that:
Th[e] difference between federal and state constitutional law represents a
sound development, one which takes into account the fact that “state courts
may be in a better position to review local economic legislation than the
Supreme Court. State courts, since their precedents are not of national
authority, may better adapt their decisions to local economic conditions and
needs. . . . And where an industry is of basic importance to the economy of
a state or territory, extraordinary regulations may be necessary and proper.”
Pa. State Bd. of Pharmacy, 272 A.2d at 490 (quoting John A.C. Hetherington, State
Economic Regulation & Substantive Due Process of Law, 53 NW . U. L. REV. 226, 250
(1958-1959)). It is true enough, I suppose, that state courts are in a better position than
the United States Supreme Court to weigh in on issues of local concern. But that alone
does not explain why ordinary conceptions of due process empower any courts, state or
federal, to enjoin laws that they deem “unreasonable.”
[J-71-2019] [MO: Dougherty, J.] - 7
obvious, reasonableness is very much in the eye of the beholder. Thus, as I have
explained in the past, the Gambone standard:
validates and encourages judicial overstepping, allowing courts to usurp the
legislative role and to strike down laws merely because they are imperfect,
unwise, or under-inclusive. Surely, some very large proportion of legislative
work could fall within one or more of these categories. But republican
democracy is a messy business. It is time to cease adherence to the
outdated and overbroad language of Gambone in applying the rational basis
test in Pennsylvania.
Shoul, 173 A.3d at 692-93 (Wecht, J., concurring)7; see Ferguson v. Skrupa, 372 U.S.
726, 730 (1963) (“The doctrine that prevailed in Lochner [era] cases—that due process
authorizes courts to hold laws unconstitutional when they believe the legislature has acted
unwisely—has long since been discarded. We have returned to the original constitutional
proposition that courts do not substitute their social and economic beliefs for the judgment
of legislative bodies, who are elected to pass laws.”).
There is simply no conceivable justification for Gambone’s “heightened rational
basis” standard. In the due process arena, a law that does not infringe upon fundamental
rights withstands constitutional scrutiny so long as it is rationally related to some
legitimate government interest. Commonwealth v. Burnsworth, 669 A.2d 883, 889 (Pa.
1995) (“To [perform the rational basis analysis], we have set forth a two[-]step approach.
First, we must determine whether the challenged statute is designed to further a legitimate
state interest or public value. If it is, we must then determine whether the statute is
reasonably related to accomplishing the articulated state interest.” (citations omitted)).
7 See also Jennifer Senior, In Conversation: Antonin Scalia, NEW YORK MAGAZINE
(Oct. 4, 2013), http://nymag.com/news/features/antonin-scalia-2013-10 (“A lot of stuff
that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out
to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID
BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL!
Whack! STUPID BUT CONSTITUTIONAL. [Laughs.] And then somebody sent me one.”).
[J-71-2019] [MO: Dougherty, J.] - 8
That brings us to this appeal. The Appellant here, Sara Ladd, is a New Jersey
resident who owns two vacation properties on Arrowhead Lake in the Pocono Mountains.
Since 2009, Ladd has used home sharing services like Airbnb to market her vacation
properties to prospective renters. Ladd’s friends and neighbors noticed that she was
generating rental income using these services and they asked her to help them do the
same. Ladd, who had been laid off from her job right around this time, agreed. She
formed Pocono Mountain Vacation Properties, LLC to provide property management
services to her friends and neighbors on a part time basis.8
Ladd eventually learned that she was violating Pennsylvania law when, in 2017,
an investigator from the Department of State’s Bureau of Professional and Occupational
Affairs (the “Bureau”) informed her that that she was being investigated for practicing real
estate without a license in violation of the Real Estate Licensing and Registration Act
(“RELRA”).9 See 63 P.S. §§ 455.101, et seq. If she wanted to continue operating her
property management business, Ladd would need to become a licensed real estate
broker, meaning that she would have to complete hundreds of hours of coursework, pass
an exam, work as a real estate salesperson, and maintain a brick-and-mortar office within
the Commonwealth. See Majority Opinion at 3-4 (detailing the RELRA’s extensive broker
licensing conditions). Unwilling to meet those requirements, Ladd shut down her
business and filed a declaratory judgment action in Commonwealth Court against the
8 Ladd structured her business such that she would first sign an agreement with the
property owners for her services as a vacation property manager. After determining the
property owners’ intended rental calendar, Ladd would then list the properties on the
internet and handle all inquiries from prospective renters. To make a reservation, renters
signed a rental agreement directly with the property owner. At the end of the process,
Ladd handled all billing (including returning security deposits and remitting rents to her
clients) and ensured that the property was cleaned between renters.
9 At issue here is the Act’s definition of a “broker,” which includes “[a]ny person who,
for another and for a fee, commission or other valuable consideration . . . undertakes to
promote the sale, exchange, purchase or rental of real estate.” 63 P.S. § 455.201(5).
[J-71-2019] [MO: Dougherty, J.] - 9
Bureau and the Pennsylvania Real Estate Commission seeking a declaration that the
RELRA’s broker licensing requirements, as applied to short-term vacation property
managers, violate Article I, Section 1 of the Pennsylvania Constitution.
In a unanimous decision, the Commonwealth Court dismissed Ladd’s petition for
review with prejudice, finding that she failed to present a claim upon which relief could be
granted. Ladd v. Real Estate Comm’n of Pa., 187 A.3d 1070, 1078 (Pa. Cmwlth. 2018).
Specifically, the Commonwealth Court emphasized that the primary purpose of the
RELRA is “to protect buyers and sellers of real estate . . . from abuse by persons engaged
in the business,” which is especially important given that real estate is often “the most
expensive item many persons ever buy or sell.” Id. at 1077 (internal citations omitted).
The court recognized that many professions require licenses “to ensure competence of
professionals in given fields,” and noted that Ladd’s proposed Constitutional interpretation
“would effectively upend the legitimacy of” occupational licensing requirements and
expose the public to the risk of hiring unqualified professionals. Id. at 1078.
The Commonwealth Court acknowledged that the RELRA’s licensing
requirements appeared onerous as applied to Ladd given the small volume of her
practice. Nevertheless, the court observed that no Pennsylvania court has found
professional license requirements to be unconstitutional simply because some individuals
would prefer to practice the profession in a more limited fashion. In this regard, the court
explained that Article I, Section 1 “does not require the General Assembly to establish a
tiered system for every profession that it regulates in order to account for different
volumes of work performed.” Id. at 1078. Thus, the court concluded that the RELRA
“merely establishes the prerequisites to engaging in the practice of real estate” and
therefore does not violate due process. Id. at 1079.
[J-71-2019] [MO: Dougherty, J.] - 10
In my view, the Commonwealth Court correctly rejected Ladd’s claim that the
Constitution—somewhere within its secret repository of unenumerated rights—
guarantees her the freedom to operate as an unlicensed real estate broker. As explained
above, the only constitutionally relevant question is whether the RELRA’s broker licensing
requirements are rationally related to a legitimate government interest. I have little doubt
that they are. As the Commonwealth Court noted, the RELRA’s licensing scheme was
designed to protect buyers, sellers, and renters of real estate from unqualified or unethical
businesspeople. Ladd, 187 A.3d at 1077-78 (quoting Kalins v. State Real Estate
Comm’n, 500 A.2d 200, 203 (Pa. Cmwlth. 1985)). One rational (i.e., logical) way to
protect the public is to ensure that all aspiring brokers complete specific courses, pass
exams, and work under the tutelage of an experienced broker. Whether that is the best
way to ensure competency in the real estate profession, or whether a less burdensome
scheme would have sufficed, is not a question for this or any other court. See Am. Fed’n
of Labor v. Am. Sash & Door Co., 335 U.S. 538, 542 (1949) (“[T]he existence of evils
against which the law should afford protection and the relative need of different groups
for that protection ‘is a matter for the legislative judgment.’” (quoting W. Coast Hotel Co.,
300 U.S. at 400)).
This case really is that simple. Nonetheless, I feel compelled to point out the flaws
in the Majority’s heightened-rational-basis analysis, even though that standard should not
apply. First, the Majority suggests that the RELRA’s educational requirements are
oppressive given that, under Ladd’s “unique business model,” much of the coursework
that she would need to complete to obtain a broker’s license is unrelated to the services
that she seeks to provide her clients. Majority Opinion at 28. So what? That is like saying
licensing requirements for dentists are unconstitutional as applied to practitioners who
only intend to extract teeth. Or that this Court’s rules governing admission to the legal
[J-71-2019] [MO: Dougherty, J.] - 11
profession are unconstitutional as applied to those who seek to represent clients only in
traffic court. The fact that Ladd does not intend to provide all, or even most, of the services
that real estate brokers typically offer has nothing to do with the RELRA’s licensing
regime; it is the result of her own choice. Despite the Majority’s suggestion to the contrary,
no one has a constitutional right to a custom-made licensing statute that perfectly aligns
with their own individual career ambitions.10
Second, the Majority finds it significant that Ladd’s “business model” would not be
sustainable if she were forced to comply with the RELRA’s licensing regime, since the
costs of complying with the law would increase the prices that she charges her clients.
Majority Opinion at 30. That fact is not significant at all. The mistaken belief underlying
the Majority’s argument is that there must be a financially viable path for semi-retired
individuals to enter the real estate profession part-time while providing only limited
services. Maybe there isn’t. It is entirely possible—likely, even—that the side business
Ladd envisions would not be economically practicable given Pennsylvania’s broker
licensing requirements, just as it likely would not be profitable for a sixty-five-year-old to
attend law school and pass the bar exam in order to draft wills for friends and neighbors
on a part-time basis. See Nebbia v. People of New York, 291 U.S. 502, 527-28 (1934)
(“The Constitution does not guarantee the unrestricted privilege to engage in a business
or to conduct it as one pleases. Certain kinds of business may be prohibited; and the
right to conduct a business, or to pursue a calling, may be conditioned.”).
10 To the extent that there is value, from a policy perspective, in allowing property
managers like Ladd to act outside of the RELRA’s traditional broker-salesperson
framework, it is for the General Assembly, not this Court, to effectuate that change. It
should come as no surprise to anyone that social and economic changes brought about
by new technology, like home sharing, ride sharing, and telemedicine applications, often
necessitate amendment of existing statutory and regulatory schemes.
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Finally, the Majority contends that there is a less restrictive alternative to regulating
vacation-property managers under the RELRA, since Pennsylvania’s Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”) would still prevent those workers
from engaging in “unfair methods of competition” and “unfair or deceptive acts or
practices.” Majority Opinion at 31; see 73 P.S. § 201-2(4) (prohibiting certain kinds of
fraudulent and deceptive conduct that creates a likelihood of consumer confusion or of
misunderstanding). There are three main problems with this reasoning. First, the same
argument could be made for any professional licensing statute, since the UTPCPL is not
limited in its application to any one field. Id. § 201-2(4). Second, the General Assembly
(even under the misguided “heightened rational basis” test) need not select the least
restrictive alternative to accomplish its legislative goals.11 Finally, it would be perfectly
sensible for the legislature to favor licensing requirements that could prevent consumers
from being ripped off by unsavory real-estate practitioners in the first place, rather than
simply giving them a private right of action (against potentially judgment proof defendants)
after some harm arises.
Put simply, the Majority opinion resembles a public policy whitepaper more than a
judicial decision; it weighs the pros and cons of regulating vacation-property managers in
the same manner as real estate brokers, see Majority Opinion at 29-32, and balances the
need to protect the public with a desire to limit “oppressive” barriers to entering the
profession, id. at 32. In other words, the Majority is legislating.
11 See Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936, 947 (Pa. 2004)
(“Whether a statute is wise or whether it is the best means to achieve the desired result
are matters left to the legislature, and not the courts. Moreover, the General Assembly is
presumed to have investigated the question and ascertained what is best for the good of
the profession and the good of the people.”); accord Ullom v. Boehm, 142 A.2d 19, 21
(Pa. 1958) (upholding a law prohibiting opticians from advertising the prices of their
products).
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Though nothing in the Constitution envisions a system of government by judges,
that is exactly what this Court’s due process jurisprudence gives us. Gambone empowers
jurists to sit as junior-varsity legislators, questioning the wisdom of laws regulating
everything from ice-cream trucks to vacation rentals to gas-pump signage. The longer
we wait to overrule Gambone, the more we deprive the citizens of this Commonwealth of
the right to govern themselves. Because I cannot, in good conscience, join a decision
applying Gambone’s “heightened rational basis” test, I must respectfully dissent.
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