Yocum v. Commonwealth, Pennsylvania Gaming Control Board

[J-50-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
SUSAN A. YOCUM, : No. 74 MM 2015
:
Petitioner :
:
:
v. :
:
:
COMMONWEALTH OF PENNSYLVANIA, :
PENNSYLVANIA GAMING CONTROL :
BOARD, : ARGUED: April 5, 2016
: RESUBMITTED: April 26, 2017
Respondent :
OPINION
JUSTICE DOUGHERTY DECIDED: May 25, 2017
We consider the petition for review filed by Susan A. Yocum, Esquire, in this
Court’s original jurisdiction pursuant to the Pennsylvania Race Horse Development and
Gaming Act, 4 Pa.C.S. §§1101-1904 (the Gaming Act). Petitioner challenges as
unconstitutional certain restrictions imposed upon attorneys who are employed by the
Pennsylvania Gaming Control Board (Board), and seeks declaratory and injunctive
relief. The Board filed preliminary objections, asserting petitioner lacks standing to
pursue her claim, her claim is not yet ripe, and in any event, her claim fails on the
merits. We overrule the Board’s preliminary objections as to standing and ripeness, but
nevertheless conclude petitioner is not entitled to relief on the merits as the restrictions
included in the Gaming Act are constitutionally sound.1
Petitioner is an attorney employed by the Board. At all relevant times, the
Gaming Act has set forth various requirements and restrictions applicable to Board
members and certain other persons employed by and associated with the Board. When
petitioner was first hired in 2008, the Gaming Act prohibited Board employees from
soliciting, recommending or accepting employment with a licensed gaming facility for a
period of two years after termination of employment with the Board. 2 The Gaming Act
also restricted Board employees from accepting employment with an applicant, licensed
entity, affiliate, intermediary subsidiary or holding company of an applicant or licensed
entity for one year after termination, and appearing before the Board in any hearing or
proceeding for two years after termination.3 In 2010, the Act was amended to, inter alia,
specifically identify the executive director, bureau directors and attorneys as types of
employees prohibited from appearing before the Board for two years after termination,
and also to extend the general one-year prohibition on accepting employment with a
licensed gaming entity or an affiliate, intermediary, subsidiary or holding company of an
1
We note our review of preliminary objections in the first instance is highly unusual, and
derives from the General Assembly’s vesting of exclusive original jurisdiction in this
Court “to hear any challenge to or to render a declaratory judgment concerning the
constitutionality of” the Gaming Act. 4 Pa.C.S. §1904; see also Pennsylvanians Against
Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 392 (Pa. 2005)
(Gaming Act vested Supreme Court with original and exclusive jurisdiction to resolve
any constitutional challenges to Gaming Act).
2
4 Pa.C.S. §1201(h)(8) (amended 2006).
3
4 Pa.C.S. §1201(h)(13) (amended 2006).
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applicant or licensed entity to two years after termination. 4 Pa.C.S. §1201(h)(13) (as
amended 2010). Specifically, Section 1201(h) currently provides in pertinent part as
follows:
(h) Qualifications and restrictions.--
* * * *
(8) No member, employee or independent contractor of the board
may directly or indirectly solicit, request, suggest or recommend to any
applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding
company thereof or to any principal, employee, independent contractor or
agent thereof, the appointment or employment of any person in any
capacity by the applicant, licensed entity, or an affiliate, intermediary,
subsidiary or holding company thereof for a period of two years from
the termination of term of office, employment or contract with the
board.
* * * *
(13) The following shall apply to an employee of the board whose
duties substantially involve licensing, enforcement, development of law,
promulgation of regulations or development of policy, relating to gaming
under this part or who has other discretionary authority which may affect
or influence the outcome of an action, proceeding or decision under this
part, including the executive director, bureau directors and attorneys:
(i) The individual may not, for a period of two years following
termination of employment, accept employment with or be retained by
an applicant or a licensed entity or by an affiliate, intermediary, subsidiary
or holding company of an applicant or a licensed entity.
(ii) The individual may not, for a period of two years following
termination of employment, appear before the board in a hearing or
proceeding or participate in activity on behalf of any applicant, licensee,
permittee or licensed entity or on behalf of an affiliate, intermediary,
subsidiary or holding company of any applicant, licensee, permittee or
licensed entity.
(iii) An applicant or a licensed entity or an affiliate, intermediary,
subsidiary or holding company of an applicant or a licensed entity may
not, until the expiration of two years following termination of
employment, employ or retain the individual. Violation of this
subparagraph shall result in termination of the individual's employment
[J-50-2017] - 3
and subject the violator to section 1518(c) (relating to prohibited acts;
penalties).
(iv) A prospective employee who, upon employment, would be
subject to this paragraph must, as a condition of employment, sign an
affidavit that the prospective employee will not violate subparagraph (i) or
(ii). If the prospective employee fails to sign the affidavit, the board shall
rescind any offer of employment and shall not employ the individual.
4 Pa.C.S. §1201(h)(8) and (13) (emphases added). Petitioner — who holds the position
of Assistant Chief Counsel III — is subject to the restrictions identified in Section
1201(h)(8) and (13). See 4 Pa.C.S. §1201(h)(14.1); Petition for Review, Exhibit B.
Petitioner, who now wishes to seek and accept new employment as an attorney
representing gaming clients, filed this petition for review requesting: (1) a declaration
the restrictions of Section 1208(h) violate Article V, Section 10 of the Pennsylvania
Constitution,4 which vests in this Court the exclusive authority to govern the practice of
4
In relevant part, Article V, Section 10 provides:
(c) The Supreme Court shall have the power to prescribe general
rules governing practice, procedure and the conduct of all courts,
justices of the peace and all officers serving process or enforcing
orders, judgments or decrees of any court or justice of the peace,
including the power to provide for assignment and reassignment of
classes of actions or classes of appeals among the several courts as
the needs of justice shall require, and for admission to the bar and to
practice law, and the administration of all courts and supervision of all
officers of the Judicial Branch, if such rules are consistent with this
Constitution and neither abridge, enlarge nor modify the substantive
rights of any litigant, nor affect the right of the General Assembly to
determine the jurisdiction of any court or justice of the peace, nor
suspend nor alter any statute of limitation or repose. All laws shall be
suspended to the extent that they are inconsistent with rules
prescribed under these provisions. . . . .
(…continued)
[J-50-2017] - 4
law; and (2) a permanent injunction against the enforcement of the challenged
restrictions. Specifically, petitioner alleges that, “[a]s a current Gaming Board attorney,
[she] desires to seek and accept employment as an attorney representing gaming
clients.” Amended Petition for Review at ¶6. She states she is currently “faced with two
equally unappealing and untenable options to leave the employ of the Gaming Board.”
Id. at ¶8.
Option one is to test the Gaming Act's employment provisions by violating
them, actively seeking a legal position with a licensee, affiliate or law firm
that represents licensees or affiliates knowing that if Petitioner accepted a
position and left the Gaming Board, the licensee or affiliate could be
subject to administrative penalties, Petitioner's position, by statute, would
be terminated and Petitioner could be subject to sanction for breach of
fiduciary duty to clients for placing Petitioner's interests before her client's
interests. Thus, Petitioner would be risking harm to her reputation and her
ability to continue practicing law in the Commonwealth and the licensees
and affiliates would be risking administrative penalty.
The other option for Petitioner is to forgo the practice of law in her area of
expertise, or with any law firm that represents any licensees or their
affiliates.
Id. at ¶¶9, 12 (citations omitted).
The Board filed preliminary objections to the petition for review, pursuant to
Pa.R.C.P. 1028(a)(4), alleging insufficiency of the pleading in various respects. The
Board claims (1) petitioner lacks standing to challenge so-called “post-employment”
(continued…)
PA. CONST. art. V, §10(c) (emphasis added).
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restrictions of the Act,5 as she is still employed by the Board, and has not yet been
aggrieved by their enforcement against her; (2) petitioner’s claims are not yet ripe
because she is still an employee of the Board and enforcement of post-employment
restrictions against her is hypothetical and speculative; (3) petitioner’s request for pre-
enforcement review is premature; (4) the Rules of Professional Conduct allow
protections against conflicts of interest as provided in the Act; and (5) the Act’s post-
employment restrictions do not violate the separation of powers as circumscribed in
Article V, Section 10(c).
A preliminary objection to the legal sufficiency of a pleading (a demurrer) raises
questions of law, and a court must decide whether it is clear from the well-pleaded facts
and reasonable inferences from those facts that the claimant has not established a right
to relief. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 272 (Pa.
2005), citing Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 624, n.1 (Pa. 1999) (in
determining preliminary objections in nature of demurrer, all material facts set forth in
the pleading, and all inferences therefrom, are accepted as true). Preliminary
objections in the nature of a demurrer should be sustained only in cases that clearly and
without a doubt fail to state a claim for which relief may be granted. Id. at 274, quoting
MacElree v. Phila. Newspapers, Inc., 674 A.2d 1050, 1056 (Pa. 1996).
5
We note the Board often refers to the challenged restrictions as “post-employment”
restrictions, but as we explain further infra, the provisions apply while individuals are still
employed by the Board.
[J-50-2017] - 6
I. Standing and Ripeness
We first consider the Board’s objections based on standing and ripeness. We
note there is “considerable overlap” between the two doctrines, especially where the
objecting party’s claim that the matter is not justiciable is “focused on arguments that
the interest asserted by the petitioner is speculative, not concrete, or would require the
court to offer an advisory opinion.” Robinson Twp. v. Commonwealth, 83 A.3d 901, 917
(Pa. 2013), citing Rendell v. Pa. State Ethics Comm’n., 983 A.2d 708, 718 (Pa. 2009).
Generally, the doctrine of standing is an inquiry into whether the petitioner
filing suit has demonstrated aggrievement, by establishing “a substantial,
direct and immediate interest in the outcome of the litigation.” … In this
sense, a challenge that a petitioner's interest in the outcome of the
litigation is hypothetical may be pled either as determinative of standing or
restyled as a ripeness concern although the allegations are essentially the
same. Standing and ripeness are distinct concepts insofar as ripeness
also reflects the separate concern that relevant facts are not sufficiently
developed to permit judicial resolution of the dispute.
Id. (internal citations omitted). However, we have further observed that “pure questions
of law,” such as those presented by petitioner in this case, “do not suffer generally from
development defects and are particularly well-suited for pre-enforcement review.” Id.,
citing Rendell, 983 A.2d at 718 n.13.
Taking the Board’s objections in order, we first consider whether petitioner has
standing to bring her action challenging the restrictions of Section 1201(h), which the
Board argues are post-employment restrictions, and as petitioner is still employed by
the Board, she has not yet been aggrieved by their enforcement against her. The Board
further argues petitioner knew about the post-employment rules when she took the
position and did not challenge them until now; the Board claims this circumstance belies
petitioner’s claim her harm is “immediate.” See Brief for Respondent at 12-13.
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Petitioner, however, argues the plain language of Section 1201(h)(8) — stating no
employee of the Board “may directly or indirectly solicit, request, suggest or
recommend” to any gaming entity the employment of any person for a period of two
years from the termination of the person’s employment by the Board — binds current as
well as former employees, and thus presents a direct, immediate and substantial
impediment to her stated objective: to seek and accept employment in the private
sector, in her chosen profession, in her particular area of expertise, i.e., the gaming
industry. See Brief for Petitioner at 10-14. Petitioner claims the restriction prevents her
from looking for a job with a prospective employer, let alone accepting a position for two
years after she leaves the Board. See id. She argues the General Assembly’s
omission of the word “former” from the statute’s description of affected Board
employees means the provision applies to her right now, and she is thus presently
aggrieved, notwithstanding the Board’s reference to the statutes as “post-employment”
restrictions.
We have described the requirements for standing as follows:
In seeking judicial resolution of a controversy, a party must establish as a
threshold matter that he has standing to maintain the action. In
Pennsylvania, the requirement of standing is prudential in nature. . . .[T]he
core concept of standing is that a person who is not adversely affected in
any way by the matter he seeks to challenge is not aggrieved thereby and
has no standing to obtain a judicial resolution of his challenge.
Fumo v. City of Phila., 972 A.2d 487, 496 (Pa. 2009) (internal citations and quotation
marks omitted). “An individual can demonstrate that he has been aggrieved if he can
establish that he has a substantial, direct and immediate interest in the outcome of the
litigation.” Id., citing In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003). Moreover, one has
a substantial interest in the outcome of litigation if her interest surpasses that “of all
[J-50-2017] - 8
citizens in procuring obedience to the law.” Id., quoting Hickson, 821 A.2d at 1243.
One has a direct interest in litigation “if there is a causal connection between the
asserted violation and the harm complained of; it is immediate if that causal connection
is not remote or speculative.” Id., quoting City of Phila. v. Commonwealth, 838 A.2d
566, 577 (Pa. 2003).
As stated, petitioner is still employed by the Board as an attorney, and it is
undisputed she is included among the employees restricted by the terms of the statute.
We acknowledge the two-year period of restriction does not begin until after petitioner’s
employment with the Board is terminated, but we also note the rule’s prohibition of
petitioner’s ability to legally seek employment in the gaming field before she actually
leaves her job and becomes a former employee. Section 1201(h)(8) specifically
prohibits petitioner, as an “employee of the Board,” from soliciting, requesting,
suggesting, or recommending employment with any applicant, licensed entity or an
affiliate, intermediary, subsidiary or holding company. Petitioner alleges in her petition
her “desire to pursue employment opportunities and to render professional legal
services to clients outside the Gaming Board.” Petition for Review at ¶23. Petitioner
further avers she has been informed by persons and law firms who associate and
represent gaming entities that the employment restrictions in the Gaming Act will inhibit
her ability to seek and obtain employment with those potential employers, and the
employment restrictions have a chilling effect on potential employers’ willingness to hire
a person in petitioner’s position. Id. at ¶¶ 31-33.
Petitioner relies on Robinson, where this Court considered a physician’s
challenge to statutory restrictions (Act 13) regarding obtaining and sharing information
[J-50-2017] - 9
with other physicians about chemicals used in fracking operations. The physician
alleged the restrictions improperly impeded his ability to diagnose and treat his patients
by forcing him to choose between complying with the mandatory provisions of the
statute and adhering to his ethical and legal duties to report findings in medical records
and make those records available to patients and other medical professionals.
Robinson, 83 A.3d at 923-24. Although the Commonwealth argued he did not have
standing until he actually requested information restricted by the statute and that
information was not supplied at all, or was supplied with restrictions interfering with his
ability to provide proper medical care, or indicated the chemicals posed a public health
hazard, this Court nonetheless held the physician’s interest in the outcome of the
litigation regarding constitutionality of the provisions was “neither remote nor
speculative.” Id. The Court recognized “the untenable and objectionable position in
which Act 13” placed him:
choosing between violating a Section 3222.1(b) confidentiality agreement
and violating his legal and ethical obligations to treat a patient by accepted
standards, or not taking a case and refusing a patient medical care. …
Our existing jurisprudence permits pre-enforcement review of statutory
provisions in cases in which petitioners must choose between equally
unappealing options and where the third option, here refusing to provide
medical services to a patient, is equally undesirable.
Id. at 924. Petitioner argues she similarly “must choose between equally unappealing
options and where the third option . . . is equally undesirable.” Brief for Petitioner at 17,
citing Robinson, 83 A.3d at 924.
Petitioner also relies on Shaulis v. Pennsylvania. State Ethics Commission, 833
A.2d 123, 129 (Pa. 2003). Shaulis, an attorney with the Pennsylvania Department of
Revenue, questioned provisions of the State Ethics Act which ostensibly applied to limit
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her activities as an attorney after her public employment ended.6 The provision stated:
“No former public official or public employee shall represent a person, with promised or
actual compensation, on any matter before the governmental body with which he has
been associated for one year after he leaves that body.” 65 Pa.C.S. §1103(g). After
the State Ethics Commission confirmed Section 1103(g) applied to limit Shaulis’s ability
to practice in the relevant tribunals, this Court determined she was aggrieved because
“if she took the actions therein proscribed, she would expose herself to the exact ethical
investigation that she was attempting to forestall by seeking the advice of the
Commission in the first place.” Shaulis, 833 A.2d at 691. Petitioner claims this matter is
similar to the pre-enforcement review in Shaulis, where the Court recognized as
untenable the attorney’s choices to either “violate the law and risk an ethics
investigation or forgo practicing in Shaulis’[s] area of expertise.” Brief for Petitioner at
18, citing Shaulis, 833 A.2d 130. Petitioner claims she likewise faces objectionable
options to: (1) forego practicing law in her area of expertise; or (2) test the law by
violating it and seeking employment as an attorney directly representing gaming
entities, or with a law firm representing gaming entities as clients, with adverse
consequences to both a potential future employer and petitioner herself. See Brief for
6
Shaulis addressed both the petitioner’s standing to challenge the employment
restrictions, as well as the constitutionality of those provisions. A majority of the Court,
including Chief Justice Cappy and Justices Castille and Eakin, joined the portion of
Justice Newman’s opinion holding Shaulis had standing. Shaulis, 833 A.2d at 132. In
addition, a majority of the Court, comprised of Chief Justice Cappy and Justices Castille
and Lamb, joined the portion of Justice Newman’s opinion holding the Ethics Act
provision unconstitutional. Id.
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Petitioner at 18; see also, e.g. Petition for Review at ¶¶ 31-33 (averring chilling effect of
restrictions upon potential employers).
The Board argues petitioner is in a different position than the plaintiffs in either
Robinson or Shaulis, and that those decisions do not confer standing upon her here.
The Board avers that the choices the physician in Robinson faced are not “even closely
analogous” to the choices petitioner claims to be facing. Brief for Respondent at 16.
Considering the facts alleged by petitioner, all taken as true, we conclude she is
in the position that if she took the actions proscribed by Sections 1201(h)(8) and (13)
and tried to obtain new employment in Pennsylvania’s gaming industry, she would be in
violation of the Act, exposing herself — and her potential employer — to adverse
consequences, including damage to her reputation, and potentially instigating the loss
of her new employer’s gaming license. See 4 Pa.C.S. §1201(h)(13). Under the
circumstances, we conclude petitioner has standing to challenge the constitutionality of
the Gaming Act’s employment restrictions.
We next consider the Board’s preliminary objection alleging the matter is not yet
ripe and petitioner’s challenge is premature. The Board argues “declaratory relief is
only appropriate where there is an actual controversy” and the “hypothetical future
occurrence” of petitioner’s departure from Board employment is speculative and not yet
a proper subject for this Court’s consideration. Brief for Respondent at 13-14. The
Board asserts it is unknown how long petitioner will stay in her current job, and by the
time she leaves that job the statute might be amended, or the subsequent employment
petitioner might secure may not even be as an attorney or within the scope of the
[J-50-2017] - 12
statute; the Board claims the matter is therefore not ripe for decision. Id. at 14-15. The
Board therefore claims petitioner’s request for relief is premature.
Petitioner argues the question of the constitutionality of the Gaming Act
employment restrictions is ripe for the same reasons stated in her argument on
standing. We agree the challenge to petitioner’s claim based on ripeness is “merely a
restyling of the remoteness concern” addressed in our discussion on standing.
Robinson, 83 A.3d at 920 (municipalities challenging Act 13 had standing and matter
was ripe even before enforcement; they were aggrieved even by “threatened
fundamental changes to esthetic and environmental values”). Thus, as with our
consideration of the Board’s preliminary objections based on standing, we consider the
following allegations as true for purposes of determining the preliminary objection
challenging ripeness: (1) petitioner wishes to leave her Board position and find another
job in her specialty, although she is currently still employed by the Board; and (2) the
statutory provisions facially restrict her current ability to seek future employment
opportunities in her specialty, even though the details of her potential future departure
from Board employment are not yet known. See Bilt-Rite Contractors, 866 A.2d at 272.
(standard in determining preliminary objections is taking all petitioner’s allegations as
true).
In any event, additional factual development of petitioner’s claims that might
result from awaiting her actual application to or recruitment by a possible future gaming
industry employer “is not likely to shed more light upon the constitutional question of
law” she has presented. Robinson, 83 A.3d at 925. The substantive question regarding
constitutionality of the employment restrictions in the Gaming Act is clearly a question of
[J-50-2017] - 13
law and, as we have stated, such questions are “particularly well-suited for pre-
enforcement review.” Id. at 917. Accordingly, the question presented by petitioner is
ripe for review and the Board’s preliminary objections as to standing and ripeness are
therefore overruled.
II. Constitutionality
In its preliminary objections based on the merits of petitioner’s constitutional
challenge, the Board argues petitioner failed to state a claim on which she is legally
entitled to relief, because the employment restrictions at Sections 1201(h)(8) and (13) of
the Gaming Act are constitutionally sound. We reiterate, in ruling on preliminary
objections in the nature of a demurrer, a court’s role is to accept all well-pleaded facts
as true and determine if those facts are sufficient to permit the cause of action to
continue. See Bilt-Rite Contractors, 866 A.2d at 272. The issue of the constitutionality
of Sections 1201(h)(8) and (13) of the Gaming Act is a pure question of law, and no
material factual dispute exists. Accordingly, with objections to standing and ripeness
overruled, we proceed to determine the merits of petitioner’s claim. See Robinson, 83
A.2d at 817.
Petitioner challenges the employment restrictions set forth in Sections 1201(h)(8)
and (13) of the Gaming Act on the basis they conflict with this Court’s authority under
Article V, Section 10(c) of the Pennsylvania Constitution which states, in relevant part:
The Supreme Court shall have the power to prescribe general rules
governing practice, procedure and the conduct of all courts, justices
of the peace and all officers serving process or enforcing orders,
judgments or decrees of any court or justice of the peace, including the
power to provide for assignment and reassignment of classes of actions
or classes of appeals among the several courts as the needs of justice
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shall require, and for admission to the bar and to practice law, and the
administration of all courts and supervision of all officers of the Judicial
Branch, if such rules are consistent with this Constitution and neither
abridge, enlarge nor modify the substantive rights of any litigant, nor affect
the right of the General Assembly to determine the jurisdiction of any court
or justice of the peace, nor suspend nor alter any statute of limitation or
repose. All laws shall be suspended to the extent that they are
inconsistent with rules prescribed under these provisions. . . .
See PA. CONST. art. V, §10(c) (emphasis added). Section 10(c) specifically prohibits the
General Assembly from enacting laws that are “inconsistent with” the rules prescribed
by this Court regarding the practice of law. Pursuant to its constitutional authority, this
Court has established, inter alia, Rules of Professional Conduct, Pa.R.P.C., and Rules
of Disciplinary Enforcement, Pa.R.D.E, pertaining to the supervision of attorneys who
practice in the Commonwealth.
At the outset, we acknowledge petitioner’s burden in challenging the
constitutionality of a statute. “There is a presumption that lawfully enacted legislation is
constitutional. Should the constitutionality of legislation be challenged, the challenger
must meet the burden of rebutting the presumption of constitutionality by a clear,
palpable and plain demonstration that the statute violates a constitutional provision.”
Commonwealth v. Stern, 701 A.2d 568, 571 (Pa. 1997), quoting Commonwealth v.
Kohl, 615 A.2d 308, 315 (Pa. 1992). See also Pennsylvanians Against Gambling
Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa. 2005) (PAGE) (there is
“strong presumption in the law that legislative enactments do not violate our
Constitution”), citing Pennsylvania Sch. Bds., Ass’n. v. Commonwealth, Ass’n. of Sch.
Adm’rs., 805 A.2d 476, 479 (Pa. 2002). To be successful in her challenge, petitioner
must overcome the presumption of constitutionality with a clear, palpable, and plain
demonstration that the employment restrictions in the Gaming Act constitute an
[J-50-2017] - 15
infringement on this Court’s constitutional power to prescribe rules governing the
practice of law. See PA. CONST. art. V, §10(c). Additionally, in interpreting provisions of
the Pennsylvania Constitution, “[o]ur ultimate touchstone is the actual language of the
constitution itself.” Buckwalter v. Borough of Phoenixville, 985 A.2d 728, 730 (Pa.
2009), quoting Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008), quoting Stilp v.
Commonwealth, 905 A.2d 918, 939 (Pa. 2006). The constitutional language must be
interpreted as the average person would have understood it when it was adopted. Stilp
905 A.2d at 939. Moreover, “[a]ll doubts are to be resolved in favor of finding that the
legislative enactment passes constitutional muster.” PAGE, 877 A.2d at 393, citing
Commonwealth v. Hendrickson, 724 A.2d 315, 317 (Pa. 1999). As explained below, we
conclude petitioner has failed to overcome this presumption, and Sections 1201(h)(8)
and (13) of the Gaming Act do not improperly invade the Supreme Court’s authority set
forth in Article V, Section 10.
Petitioner argues the Gaming Act contains the following unconstitutional
restrictions: (1) regulating petitioner’s practice of law for two years as it relates to her
representation of Pennsylvania’s gaming entities and their affiliates before the Gaming
Board, as well as before any tribunal in any jurisdiction; (2) regulating petitioner’s
practice of law for two years as it relates to her ability to obtain employment with any
law firm that represents gaming entities, both inside and outside the Commonwealth;
and (3) inhibiting the ability of gaming entities to employ the legal talent of their choice.
Brief for Petitioner at 26-27. Petitioner further avers these restrictions create an
unlawful ban and regulate every aspect of her ability to practice law “as it relates to
gaming entities or law firms that represent gaming entities.” See id. at 27.
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In making this argument, petitioner relies upon Wajert v. State Ethics Comm’n,
420 A.2d 439 (Pa. 1980), and Shaulis, supra. In Wajert, in a challenge brought by a
former common pleas court judge, this Court examined a regulation in the Ethics Act, at
65 P.S. §403(e), providing “[n]o former official or public employee shall represent a
person with or without compensation, on any matter before the governmental body with
which he has been associated for one year after he leaves that body.” See Wajert, 420
A.2d at 440, quoting 65 P.S. §403(e). Wajert argued the regulation improperly limited
his ability to practice law after he left the bench. This Court held the provision applied to
judges who had retired or resigned from the bench. Id. at 442. The Wajert Court further
held the prohibition in the Ethics Act against “representing” a person in matters before
the court targeted the practice of law, and thus improperly infringed on this Court’s
constitutional authority to govern the conduct of attorneys. Id. at 441-42.
As in her argument on standing and ripeness, petitioner also relies on Shaulis for
her position on the merits that Sections 1201(h)(8) and (13) are unconstitutional. As
stated, Shaulis challenged an Ethics Act provision — nearly identical to the restriction
found to be unconstitutional twenty-three years earlier in Wajert — purporting to restrict
former government employees from “represent[ing] a person, with promised or actual
compensation, on any matter before the governmental body with which he has been
associated for one year after he leaves that body.” Shaulis, 833 A.2d at 125 n.1, 132.
In striking down the provision, the Court explained “the state legislature is not the body
vested with the power to enact such a restriction; that authority lies with this Court
through the promulgation of the Pennsylvania Rules of Professional Conduct.” Id. at
132. Petitioner argues the scope and duration of the employment restrictions in
[J-50-2017] - 17
Sections 1201(h)(8) and (13) of the Gaming Act exceed the post-employment
restrictions found to be unconstitutional in Wajert and Shaulis, and thus are also
unconstitutional.
The Board argues the Gaming Act’s employment restrictions do not infringe on
this Court’s authority because, unlike in Shaulis, the post-employment regulation here
restricts the conduct of all employees and is not specifically targeted at attorneys. The
Board relies on P.J.S. v. State Ethics Commission, 723 A.2d 174 (Pa. 1999). In P.J.S.,
this Court examined whether the State Ethics Commission was barred from
investigating alleged ethical violations of an attorney under Sections 403(a) and (f) of
the Ethics Act, pursuant to this Court’s jurisdiction to regulate the professional and
ethical conduct of attorneys. Sections 403(a) and (f) provided, in pertinent part: “No
public official or public employee shall engage in conduct that constitutes a conflict of
interest,” and “No public official or public employee . . . or any business in which the
person . . . is associated shall enter into any contract valued at $500 or more with the
governmental body with which the public official or public employee is associated . . .”
65 P.S. §403(a) and (f). In determining the challenged Ethics Act provisions were not
an unconstitutional violation of the separation of powers, the P.J.S. Court held “the
jurisdiction of this [C]ourt is not infringed when a regulation aimed at conduct is applied
to all persons, and some of those persons happen to be attorneys.” P.J.S., 723 A.2d at
178.
Our careful review of the relevant cases reveals employment restrictions do not
infringe on this Court’s authority to regulate the practice of law when they regulate the
conduct of all employees, rather than attorneys only. See Id. (employment restriction
[J-50-2017] - 18
not unconstitutional because it applies to all employees, not just attorneys); Maunus v.
Commonwealth, State Ethics Comm’n, 544 A.2d 1324, 1327 (Pa. 1988) (upholding
provision of Ethics Act requiring financial disclosures of employees as constitutional
because it applied to all employees, not only attorneys); see also Shaulis, 833 A.2d at
131 (“an employer, in this case the Commonwealth government, can proscribe conduct
of its current employees, including attorneys, provided that the proscription is not
targeted specifically at attorneys”). The employment restrictions set forth in Sections
1201(h)(8) and (13) of the Gaming Act clearly apply to all Board employees, including
but not limited to attorneys, and thus do not present the constitutional problem identified
in Shaulis and Wajert.7 Instead, our holdings in P.J.S. and Maunus apply to support our
determination that the challenged provisions do not violate Article V, Section 10.
Moreover, in arguing Sections 1201(h)(8) and (13) of the Gaming Act are
unconstitutional as an infringement on this Court’s authority to regulate the practice of
7
We recognize the opinions in Shaulis and Wajert focused in part on whether the
restrictions applied to current or former employees. See Shaulis, 833 A.2d at 131-32;
Wajert, 420 A.2d at 442. The Gaming Act’s restrictions at issue here apply to every
“member, employee or independent contractor of the board,” §1201(h)(8), and also to
“an employee of the board,” §1201(h)(13); current employees are affected, as well as
former employees who are within the two-year restriction period. However, as we
explain in further detail infra, although the distinction between current and former
employees is relevant for purposes of our discussion on standing and ripeness, it is not
critical to our determination of the merits of the constitutional question, where the
validity of the restriction depends primarily upon whether it purports to regulate the
practice of law or not. See P.J.S., supra; see also Shaulis, 833 A.2d at 136 n.2 (status
as former employee should not control determination of restriction’s validity) (Saylor, J.,
dissenting).
[J-50-2017] - 19
law, petitioner does not argue the restrictions apply exclusively to attorneys, nor does
she dispute the provisions apply to all employees equally. Instead, petitioner attempts
to analogize the employment restrictions in the Gaming Act to those held
unconstitutional in Wajert and Shaulis by arguing the Gaming Act restrictions are
unconstitutional as applied to attorneys. Petitioner essentially seeks an exemption from
restrictions designed to apply to all employees based on her status as an attorney. We
hold the argument fails. P.J.S., 723 A.2d at 178. In both Wajert and Shaulis, this Court
specifically found the prohibitions in the Ethics Act were unconstitutional because they
specifically targeted attorneys, noting the provision prevented a former government
employee from “representing” individuals before their government employer. See
Shaulis 833 A.2d at 132 (Section 1103(g) of the Ethics Act is unconstitutional because it
“targets the practice of law”) (citations omitted); see also Wajert, 420 A.2d at 441
(statute unconstitutional as it applied to restrict practice of law by former judges).
However, as stated, the employment restrictions in the Gaming Act are not directed at
attorneys exclusively, but rather all employees of the Board.8 The impact of the
8
The intended effect of these limited restrictions is obvious, and based on a sound and
salutary public policy: to prevent conflicts of interest, or appearances thereof, in a
historically controversial industry, by restricting current Board employees of all kinds
from using their special contacts and insider expertise as a springboard to other
employment opportunities in the field, at least for a closely circumscribed period of time.
See, e.g., Brief for Respondent at 18, quoting Pennsylvania Senate Journal, 2009 Reg.
Sess. No. 52 at 871 (“[T]he Gaming Industry brings unique difficulties along with its
legalization and operation in Pennsylvania, it appears to be an industry where it is not
out of bounds for the legislature to require all former government employees (attorneys
included) to have restrictions in place to ‘prevent corruption and malfeasance and to
insure public confidence.’”); see also Pennsylvania Senate Journal, 2009 Reg. Sess.
(…continued)
[J-50-2017] - 20
employment restrictions on attorneys is real, as we recognized in our discussion of
standing and ripeness, but regulation of the practice of law is not the goal of the
legislation, unlike the provisions directed at attorneys, and held unconstitutional in
Shaulis and Wajert. As such, this Court’s authority over attorneys is not infringed by the
Gaming Act’s employment restrictions applicable to all employees, only some of whom
(continued…)
No. 52 at 872 (General Assembly noted purpose of 2010 Amendments, which extended
duration of Gaming Act’s employment restrictions, was to address “revolving door”
issues created by comings and goings of Board employees). Cf. Shaulis, 833 A.2d at
136 (Saylor, J., dissenting) (employment restriction intended to “prevent pernicious
practices and the appearance of impropriety, thereby strengthening public confidence in
government by assuring its constituents of the impartiality and honesty of its public
officials”). Such restrictions are not novel and can also be found in other industries
where employees are privy to information and knowledge which could lead to an
appearance of a conflict of interest in their field post-employment. See, e.g., In re
Calder, 135 A.2d 1062, 1072-73 (Pa. Super. 2016) (denying school police officer private
detective license because use of limited police powers for private business constitutes
appearance of impropriety and conflict of interest). The restrictions are thus intended to
prevent the problematic “revolving door” of employees coming and going from the
Gaming Board and do not unconstitutionally regulate the practice of law — either by
intent or application.
In any event, petitioner herself acknowledges the limited nature of the employment
restrictions, which apply only to her ability to practice law “as it relates to gaming entities
or law firms that represent gaming entities.” Brief for Petitioner at 27. Petitioner is not
completely prohibited from practicing law by Sections 1201(h)(8) and (13). Rather, the
restrictions effectuate the legislative intent of avoiding conflicts of interest by preventing
petitioner from working for a distinct subsection of clients within this Commonwealth and
before the Gaming Board, where she has special “insider” knowledge. Although the
perceived severity of the restriction (or lack thereof) does not bear directly upon our
constitutional analysis, we simply note petitioner is not prevented from obtaining new
employment in the gaming industry in another jurisdiction, or remaining in Pennsylvania
to practice law in practice areas other than gaming for two years.
[J-50-2017] - 21
are attorneys. See P.J.S., 723 A.2d at 178 (relying on Maunus and noting this Court
has declined to find its “exclusive jurisdiction over the professional and ethical conduct
of all attorneys was infringed by the imposition of workplace regulations on persons who
also happened to be attorneys”); Maunus, 544 A.2d at 1327 (there is “no basis upon
which to conclude that . . . employees of a state agency are entitled to an exemption
from [statutory] requirements simply because they are attorneys”).
In determining whether the Board’s restrictions in this case are valid, Justice
Wecht would focus on whether the restriction applies to current or former employees,
some of whom happen to be attorneys. The dissent concludes if a restriction applies to
former attorney-employees — regardless of whether it is even aimed at the practice of
law — that restriction automatically infringes upon this Court’s constitutional authority.
The inevitable result of this interpretation is to create an attorney-only immunity from
any regulation imposed by any entity or institution other than this Court, on the basis of
our constitutional authority; attorneys thus attain a special privilege to escape otherwise
applicable laws protecting against conflicts of interest. See Concurring and Dissenting
Slip Op. at 5 (Wecht, J.) (stating any restriction upon attorneys, even if lawyers
represent a small percentage of the larger workforce that is restricted, impermissibly
infringes on this Court’s supervisory authority and is thus unconstitutional).
In finding the current/former employee distinction should be the critical inquiry in
our analysis, the dissent ignores the clear holdings of this Court’s decisions in P.J.S.
and Maunus, which specifically and intentionally declined to find regulations
unconstitutional when they were aimed at all persons, some of whom happened to be
attorneys. See P.J.S. 723 A.2d at 178 (“jurisdiction of this [C]ourt is not infringed when
[J-50-2017] - 22
a regulation aimed at conduct is applied to all persons, and some of those persons
happen to be attorneys”); Maunus, 544 A.2d at 1327-28 (finding no basis to conclude
employees of state agency are exempt from complying with Ethics Act simply because
of status as attorneys). A myopic focus on the current/former employee distinction
necessarily relies on the Shaulis Court’s inaccurate description of prior case law, and
overlooks the actual holdings in both Shaulis and Wajert that the challenged Ethics Act
restrictions were impermissible because they specifically targeted attorneys and the
practice of law. Shaulis, 833 A.2d at 131; Wajert, 420 A.2d 442. The fact the Ethics Act
restrictions applied only after the attorney left government employment was not
dispositive, but merely highlighted the restrictions’ effect of regulating the practice of law
at all times in those instances. Conversely, a careful examination of the restrictions
analyzed in P.J.S. and Maunus demonstrates they applied to all individuals subject to
the Ethics Act, and were not specifically targeted at attorneys or the practice of law; the
restrictions thus passed constitutional muster.
In P.J.S., the plaintiff-attorney challenged the jurisdiction of the Ethics
Commission to investigate an alleged conflict of interest arising out of his public
employment as the city solicitor for the City of Erie while simultaneously maintaining a
private practice and, in that private practice, being hired by the City’s insurer to defend
the City in a civil lawsuit. P.J.S., 723 A.2d at 175. In analyzing whether the provisions
of the Ethics Act which prohibited the attorney’s conduct violated Article V, Section 10(c)
of the Pennsylvania Constitution, this Court did not consider or even mention whether
the restrictions applied to him as a current or former public employee; rather, the
analysis turned on whether the regulation was targeted exclusively at attorneys and the
[J-50-2017] - 23
practice of law. This Court specifically held our jurisdiction “is not infringed when a
regulation aimed at conduct is applied to all persons, and some of those persons
happen to be attorneys.” Id. at 178. Thus, the ethics restriction withstood challenge not
because it applied only to current employees, but because it applied to all employees,
and not just lawyers. Moreover, although the restriction arguably did affect the plaintiff’s
practice of law, it was upheld because it applied equally to all public employees of the
City of Erie.
Similarly, in Maunus, the attorney-plaintiffs challenged regulations in the Ethics
Act requiring all public employees to disclose financial interests, claiming the regulations
violated Article V, Section 10(c). In finding the regulations were constitutionally sound
and applicable to the lawyer-employees, the Maunus Court did not consider their status
as current employees (although they unquestionably were), but instead focused on
whether the rule infringed on their practice of law, noting there is “no basis upon which
to conclude . . . employees of a state agency are entitled to an exemption from
[regulations] simply because they are attorneys.” Maunus, 544 A.2d at 1327.
Moreover, even in Shaulis and Wajert, which facially involved “former” public
employees, the restrictions were actually problematic because they were aimed at
individuals who might represent a person before the government body by which they
were previously employed; the restrictions were implicitly directed only at attorneys and
their practice of law. Shaulis, 833 A.2d at 124 n.1, citing 65 Pa.C.S. §1103(g); Wajert,
420 A.2d at 440, citing 65 P.S. §403(e). The distinction between current and former
[J-50-2017] - 24
employees was not, as a practical matter, dispositive in those cases, and is not
dispositive here.9
Nevertheless, the dissent views these cases as directing that only current
attorney-employees may be constitutionally restricted in their practice of law. See
Concurring and Dissenting Opinion at 5 (Wecht, J.) (“I believe the current/former
distinction is sufficient to dispose of the instant matter”). It is inexplicable that a
regulation could pass constitutional muster when applied to current attorney-employees,
yet suddenly become unconstitutional at the moment the attorney leaves that
employment and moves on to something else. Such an interpretation would signal an
abdication of our constitutional authority over “currently” employed attorneys, while
providing immunity to those same attorneys from any applicable restrictions once they
are “former employees.” The answer to the query before this Court cannot logically
depend on an individual’s status as a current or former employee, but rather on whether
9
The Shaulis Court explained its use of a current/former employee distinction as
follows: “we refused to overrule Wajert in Maunus, indicating the Maunus-P.J.S. line of
cases presumes the existence of Wajert.” Shaulis, 833 A.2d 132. It appears this
proclamation unnecessarily overstated the Maunus Court’s constitutional analysis with
respect to Wajert; although Maunus did not overrule Wajert, there was no call by the
litigants in Maunus to do so. Instead, the Maunus Court distinguished Wajert on the
facts, noting the issue in Maunus was “not within the category of cases which have
presented the factual predicate for concluding that our jurisdiction over the courts of
Pennsylvania and its officers has been unconstitutionally usurped by the legislature.”
Maunus, 544 A.2d at 1328. The inclusion of Wajert in a string-cite list of distinguishable
cases is the only citation to Wajert in Maunus; in holding the regulations at issue were
constitutional, the Maunus Court simply did not engage in any analysis regarding the
status of the attorney-plaintiffs as current or former employees. Thus, a careful reading
reveals the Shaulis Court’s description of the prior case law was simply inaccurate.
[J-50-2017] - 25
the restriction actually infringes on this Court’s power to supervise the practice of law.
To the extent language in Shaulis suggests the crux of the matter is this red herring
current/former employee distinction, we disavow it, and hold instead the decisive inquiry
is whether the restriction invades this Court’s authority by attempting to regulate the
practice of law, at any time.10
Moreover, as a practical matter, it was not the employers that sought to direct
and control the actions of the attorney-plaintiffs in P.J.S. and Maunus but an
independent agency — the Ethics Commission. See Maunus, 544 A.2d at 1324 (Ethics
Commission, not employer, Pennsylvania Liquor Control Board, enforced sections of
Ethics Act against employee attorneys); P.J.S., 723 A.2d at 175 (Ethics Commission,
not employer City of Erie, investigated and enforced sections of Ethics Act against
employee attorney). Likewise, the Gaming Board’s restrictions on both current and
former employees are meant to be executed at least in part by the Ethics Commission.
See 4 Pa.C.S. §1201(h)(14) (“The State Ethics Commission shall issue a written
determination of whether a person is subject to paragraph (13) or (13.1) upon the
written request of the person or the persons’ employer or potential employer. . .”).
Regardless of whether or not the affected attorney has left the Board’s employ, it is not
the Board which acts to guard against the attorney’s unethical or unprofessional
conduct.
10
Our holding in this regard does not undermine the validity of Wajert and Shaulis to the
extent they correctly focused on the fact the challenged regulations were specifically
targeted at attorneys only. Shaulis, 833 A.2d at 131; Wajert, 420 A.2d 442.
[J-50-2017] - 26
Further, a thorough examination of the caselaw applying Article V, Section 10(c)
of the Pennsylvania Constitution reveals that Shaulis was the first — and only — case
to articulate the current/former employee distinction relied upon by our learned
colleagues in dissent. While we recognize and acknowledge the value of Shaulis as
precedent as well as the principle of stare decisis, we also acknowledge that stare
decisis “is not an inexorable command to be followed blindly when such adherence
leads to perpetuating error.” Stilp, 905 A.2d at 967, citing Mayle v. Pennsylvania
Department of Highways, 388 A.2d 709, 720 (Pa. 1978) (“[T]he doctrine of stare decisis
is not a vehicle for perpetuating error, but rather a legal concept which responds to the
demands of justice and, thus, permits the orderly growth processes of the law to
flourish.”).
Sections 1208(h)(8) and (13) of the Gaming Act include restrictions applicable to
both current and former employees of the Gaming Board. Accordingly, the matter sub
judice presents an opportunity for this Court to more closely examine the current/former
distinction pronounced for the first time by the Shaulis Court. In effecting that
examination, we come to the unavoidable conclusion that the current/former distinction
cannot be the determinative test in deciding whether a restriction infringes on this
Court’s Constitutional authority to oversee the practice of law. Holding, as the dissent
articulates, that the employment status of an attorney is the seminal factor in deciding
whether a restriction violates Article V, Section 10(c) of our Constitution will perpetuate
the error articulated in Shaulis. It is regulation of the practice of law that Article V,
Section 10(c) expressly places into this Court’s jurisdiction, and only proscriptions which
are inconsistent with this Court’s rules violate that constitutional provision.
[J-50-2017] - 27
Accordingly, in examining Sections 1201(h)(8) and (13) of the Gaming Act, the
operative constitutional question is whether the employment restrictions infringe on the
practice of law in a manner inconsistent with this Court’s constitutional power.
Sections 1208(h)(8) and (13) of the Gaming Act provide restrictions aimed at all
employees, including but not limited to attorneys, and restrict future professional
activities and employment in the gaming industry, which includes but is not limited to the
practice of law. More specifically, Section 1201(h)(8) prohibits any “member,
employee or independent contractor of the board” from making solicitations,
requests, solicitations or recommendations to any gaming board affiliate or licensed
entity for two years after employment. 4 Pa.C.S. §1201 (h)(8) (emphasis added). In
addition, Section 1201(h)(13) expressly applies to any “employee of the board whose
duties substantially involve licensing, enforcement, development of law, promulgation of
regulations or development of policy . . . including the executive director, bureau
directors and attorneys,” and restricts such “individuals” from, inter alia, accepting
employment from various gaming entities or “appearing” before the Board. 4 Pa.C.S.
§1201(h)(13). As the restrictions expressly include attorneys, among other individuals,
and apply to all employees of the Board engaged in a wide array of activities, it is
without question that the restrictions are not “specifically targeted” at attorneys. But see
Shaulis, 833 A.2d at 131; Wajert, 420 A.2d 442. The Gaming Act restrictions therefore
do not improperly infringe on this Court’s authority to regulate the practice of law.
P.J.S., 723 A.2d at 178; Maunus, 544 A.2d at 1324.
Moreover, unlike the restrictions in Wajert and Shaulis, which were found to
improperly regulate the practice of law because they specifically prohibited a
[J-50-2017] - 28
government employee from “represent[ing]” an individual before government entities,
the Gaming Board restrictions are broader, prohibiting all former employees from, in
part, “appear[ing] before the board in a hearing or proceeding or participat[ing] in activity
on behalf of any applicant, licensee, permittee. . .” 4 Pa.C.S. §1201(h)(13)(ii). Unlike a
restriction on “representing,” a restriction on making an “appear[ance]” does not
necessarily implicate the acts of an attorney taken on behalf of a client, and therefore
does not specifically target attorneys. In fact, Sections 1201(h)(8) and (13) of the
Gaming Act broadly prohibit all individuals from several activities, which include
appearing before the Board in capacities which do not implicate or involve the practice
of law, for example, applying for licenses or permits from the Board, or appearing as a
lay witness on behalf of an applicant before the Board.
We reject the argument our Article V, Section 10(c) jurisdiction mandates that
attorneys may escape the employment restrictions of the Gaming Act — which are
applicable to all employees in an effort to avoid conflicts of interest — simply because
they are attorneys. P.J.S, 723 A.2d at 178. Cf. Villani v. Seibert, __ A.3d __, 2017 WL
1489048, at *13 (Pa. April 26, 2017) (this Court should not “per se immunize attorneys,
as attorneys” from civil liability under the Dragonetti Act on the basis of Article V,
Section 10(c)). Any other interpretation is ripe for abuse. For example, an attorney (like
petitioner), now employed by the Gaming Board, would have the luxury of circumventing
the restrictions applicable to all other employees and obtaining future employment with
a private gaming entity — whether as an attorney or in some other capacity.
In his dissent, Justice Wecht submits any conflicts of interest the General
Assembly might seek to regulate have already been addressed by this Court via the
[J-50-2017] - 29
Rules of Professional Conduct, specifically Rule 1.11, which applies to avert various
conflicts of interest that may arise out of the practice of law by former government
attorneys. See Concurring and Dissenting Opinion at 7-8 (Wecht, J.) (noting this Court
has exercised its regulatory authority via the Rules of Professional Conduct which
contain affirmative obligations to protect against conflicts of interest). However, Rule
1.11 is narrower in its application than the Gaming Act restrictions and clearly will not
apply to protect against a conflict of interest created by the former Gaming Board
attorney who goes to work in a non-attorney capacity for a gaming entity. This is
precisely the kind of situation the challenged statute captures, and which the Rules of
Professional Conduct do not.
Even if we were to assume the Disciplinary Board of the Court has the resources
to discover and redress every potential conflict of interest that may arise in this context
so as to enforce these Rules,11 the language of Rule 1.11, which describes “Special
11
The most recent annual report from The Disciplinary Board of the Supreme Court of
Pennsylvania states that, as of December 31, 2015, there were 64,509 active paid
attorneys and 10,951 inactive paid attorneys in the Commonwealth. See
http://www.padisciplinaryboard.org/about/pdfs/2015-annual-report.pdf (last visited on
Feb. 13, 2017) (providing Annual Report of Disciplinary Board). Pennsylvania Rule of
Disciplinary Enforcement 219(d)(1)(ii) requires attorneys to provide the Disciplinary
Board with a current office address, but compliance with that Rule does not provide the
Disciplinary Board with an accurate picture of attorneys changing employers in order to
effectively monitor any potential conflicts of interest; the number of attorneys changing
addresses also reflects attorneys who change physical offices yet stay with the same
employer, and attorneys who leave the practice of law altogether. See Pa.R.D.E.
219(d)(1)(ii) (requiring attorneys to pay annual fee and file a form containing “current e-
mail, residence and office addresses of the attorney”).
[J-50-2017] - 30
Conflicts of Interest for Former and Current Government Officers and Employees,”
clearly anticipates the need for and existence of statutory provisions which also apply to
and control the conflicts of interest addressed in the rule. See Pa.R.P.C. 1.11(d)
(“Except as law may otherwise expressly permit,” a lawyer currently serving as a public
officer or employee shall not engage in various activities); see also id., note 1 (lawyer
who has served or is currently serving as a public officer or employee subject to Rules
including prohibition of conflicts of interest also “may be subject to statutes and
government regulations regarding conflict of interest . . .”). And, as we have illustrated
above, the reach of Rule 1.11 is narrower than Sections 1201(h)(8) and (13) of the
Gaming Act because the Rules of Professional Conduct will not apply to prohibit an
attorney from appearing before the Board in a non-attorney capacity, e.g., as an
applicant for a license or as a lay witness, and policing of conflicts by this Court as
envisioned by the Rules is undermined if the Gaming Board attorney moves into a non-
attorney position at a gaming entity. In the absence of the challenged statutes, the one-
time lawyer/now-gaming executive may enjoy blanket protection from the consequences
of conflicts because she is no longer practicing law, and therefore beyond the reach of
the Rules.
Importantly, Article V, Section 10(c) itself does not state this Court’s authority
over the practice of law or its “power to prescribe general rules” is exclusive, but that
exclusivity is expressed in case law as well as in the Rules promulgated by this Court in
furtherance of its constitutional authority. See, e.g., Pa.R.D.E. 103 (“The Supreme
Court declares that it has inherent and exclusive power to supervise the conduct of
attorneys who are its officers (which power is reasserted in Section 10(c) of Article V of
[J-50-2017] - 31
the Constitution of Pennsylvania) . . . .”). The “exclusivity” of this Court’s jurisdiction
refers to the fact that no other entity but this Court has power over attorneys qua
attorneys, that is, because of their status as attorneys. See P.J.S., 723 A.2d at 178
(“The jurisdiction of this court is exclusive in the sense that it applies equally to all
members of the Bar of Pennsylvania. The exclusive jurisdiction of this court is infringed
when another branch of government attempts to regulate the conduct of attorneys
merely because of their status as attorneys.”).
In other words, “[w]hat is contemplated by the exclusivity provision contained in
Pa.R.D.E. 103 is that this Court is the only governmental body entitled to regulate and
discipline the professional class of attorneys. No other component of our state
government may impose duties applicable to every attorney admitted to practice in the
Commonwealth, nor may another Commonwealth entity admit to practice or discipline
an attorney. These prerogatives are within this Court’s exclusive jurisdiction.” Maunus,
544 A.2d 1326. There can be no question the authority to supervise the practice of law
in this Commonwealth lies in this Court’s constitutional province, and we affirm the
command in Article V, Section 10(c) that “all laws shall be suspended to the extent” they
are inconsistent with our Rules. But such exclusivity does not have the effect of
preventing attorneys from being subject to other kinds of liability or judicial process.
See P.J.S., 723 A.2d 178 (“Although members of the Bar of Pennsylvania are uniformly
subject to the professional and ethical standards imposed and regulated by this [C]ourt,
they are not, by virtue of that membership exempt from all other professional and ethical
regulations.”). In fact, the operative constitutional provision expressly acknowledges the
General Assembly may enact laws on the subject of attorneys as long as they are not
[J-50-2017] - 32
“inconsistent with rules prescribed” pursuant to this Court’s authority. PA. CONST. art. V,
§10(c) (“All laws shall be suspended to the extent that they are inconsistent with rules
prescribed under these provisions . . .”). Cf. Villani, supra; Maritrans GP Inc. v. Pepper
Hamilton & Scheetz, 602 A.2d 1277, 1285 (Pa. 1992) (“Attorneys have always been
held civilly liable for engaging in conduct violative of their fiduciary duties to clients,
despite the existence of professional rules under which the attorneys could also have
been disciplined.”)
We conclude there is nothing to prevent attorneys from being subject to both the
Rules of Professional Conduct promulgated by this Court under our constitutional
authority, and consistent statutory provisions, such as the Gaming Act employment
restrictions that apply to all employees of the Gaming Board. A holding that attorneys
are subject to the Rules of Professional Conduct alone, and no other statutes or legal
obligations simply by virtue of their status as attorneys, and without reference to
whether the regulated activity constitutes the practice of law, would place attorneys in a
special class immune to governance by any entity other than this Court. Taken to the
extreme, such a holding would invalidate any number of civil and criminal statutes when
they are applied to individuals who happen to be attorneys, and simply cannot be
correct.
Accordingly, although we hold petitioner had standing to bring her challenge, and
that challenge was ripe for our review, we hold on the merits that Sections 1201(h)(8)
and (13) of the Gaming Act do not improperly regulate the practice of law in violation of
Article V, Section 10 of the Pennsylvania Constitution. Therefore, the Board’s
[J-50-2017] - 33
preliminary objections are overruled in part and sustained in part, and the petition for
review is dismissed with prejudice.
Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion in which Justices Todd
and Donohue join.
[J-50-2017] - 34