League of Women Voters of Pennsylvania v. The Commonwealth of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
League of Women Voters of Pennsylvania, :
Carmen Febo San Miguel, James Solomon, :
John Greiner, John Capowski, Gretchen :
Brandt, Thomas Rentschler, Mary Elizabeth :
Lawn, Lisa Isaacs, Don Lancaster, Jordi :
Comas, Robert Smith, William Marx, :
Richard Mantell, Priscilla McNulty, :
Thomas Ulrich, Robert McKinstry, :
Mark Lichty, Lorraine Petrosky, :
Petitioners :
:
v. : No. 261 M.D. 2017
:
The Commonwealth of Pennsylvania; :
The Pennsylvania General Assembly; :
Thomas W. Wolf, In His Capacity :
As Governor of Pennsylvania; :
Michael J. Stack III, In His Capacity As :
Lieutenant Governor of Pennsylvania And :
President of the Pennsylvania Senate; :
Michael C. Turzai, In His Capacity As :
Speaker of the Pennsylvania House of :
Representatives; Joseph B. Scarnati III, :
In His Capacity As Pennsylvania Senate :
President Pro Tempore; Robert Torres, :
In His Capacity As Acting Secretary of :
the Commonwealth of Pennsylvania; :
Jonathan M. Marks, In His Capacity :
As Commissioner of the Bureau of :
Commissions, Elections, and Legislation :
of the Pennsylvania Department of State, :
Respondents :
ORDER
NOW, this 8th day of February, 2018, upon consideration of the
Application of Governor Thomas W. Wolf to Report Unreported Opinion and
petitioners’ answer thereto, said motion is granted. It is hereby ordered that the
Memorandum and Order filed November 30, 2017 shall be designated OPINION
rather than MEMORANDUM AND ORDER, and it shall be reported.
P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
League of Women Voters of Pennsylvania, :
Carmen Febo San Miguel, James Solomon, :
John Greiner, John Capowski, Gretchen :
Brandt, Thomas Rentschler, Mary Elizabeth :
Lawn, Lisa Isaacs, Don Lancaster, Jordi :
Comas, Robert Smith, William Marx, :
Richard Mantell, Priscilla McNulty, :
Thomas Ulrich, Robert McKinstry, :
Mark Lichty, Lorraine Petrosky, :
Petitioners :
:
v. : No. 261 M.D. 2017
:
The Commonwealth of Pennsylvania; :
The Pennsylvania General Assembly; :
Thomas W. Wolf, In His Capacity :
As Governor of Pennsylvania; :
Michael J. Stack III, In His Capacity As :
Lieutenant Governor of Pennsylvania And :
President of the Pennsylvania Senate; :
Michael C. Turzai, In His Capacity As :
Speaker of the Pennsylvania House of :
Representatives; Joseph B. Scarnati III, :
In His Capacity As Pennsylvania Senate :
President Pro Tempore; Robert Torres, :
In His Capacity As Acting Secretary of :
the Commonwealth of Pennsylvania; :
Jonathan M. Marks, In His Capacity :
As Commissioner of the Bureau of :
Commissions, Elections, and Legislation :
of the Pennsylvania Department of State, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
OPINION BY JUDGE BROBSON FILED: November 30, 2017
Presently before the Court for disposition is an application to quash
subpoena directed to the Honorable Thomas W. Corbett (Governor Corbett), along
with Governor Corbett’s memorandum of law in support thereof, Petitioners’ answer
to the application to quash, Governor Corbett’s brief in reply to the answer, and
Petitioners’ praecipe to supplement the record for the application to quash.
On November 22, 2017, Petitioners caused a subpoena to be served on
Governor Corbett, seeking to secure his appearance at a deposition scheduled for
December 1, 2017, and to compel the production of documents from Governor
Corbett described in a request for production attached to the subpoena (Requests).
(Application to Quash, Ex. “A”.) The Requests are for “[a]ll documents referring or
relating to the 2011 [Congressional Redistricting] Plan [(2011 Plan)], including, but
not limited to” the following seven (7) subcategories of documents and
communications relating to the 2011 Plan:
1. All documents referring or relating to the 2011 Plan,
including, but not limited to:
a. All proposals, analyses, memoranda, notes, and
calendar entries in whatever medium . . . they are
maintained referring or relating to the 2011 Plan.
b. All documents referring or relating to all considerations
or criteria that were used to develop the 2011 Plan, such
as compactness, contiguity, keeping political units or
communities together, equal population, race or ethnicity,
incumbent protection, a voter[’s] or area’s likelihood of
supporting Republican or Democratic candidates, and any
others.
c. All documents referring or relating to how each
consideration or criterion was measured, including the
specific data and specific formulas used in assessing
compactness and partisanship.
d. All documents referring or relating to how each
consideration or criterion affected the 2011 Plan,
2
including any rule or principle guiding the use of each
consideration or criteria in developing the 2011 Plan.
e. All communications since January 1, 2009 with any
affiliate of the Republican Party, including, but not limited
to, the Republican National Committee (RNC), the
National Republican Congressional Committee (NRCC),
the Republican State Leadership Committee (RSLC), the
REDistricting Majority Project (REDMAP), or the State
Government Leadership Foundation (SGLF) that refer or
relate to the 2011 Plan.
f. All communications with any consultants, advisors,
attorneys, or political scientists referring or relating to the
2011 Plan.
g. All communications with any committees, legislators,
or legislative staffers referring or relating to the 2011 Plan.
(Id.)
The subpoena also lists the following seven (7) “deposition topics,”
relating to the 2011 Plan:
1. Governor Corbett’s involvement in the creation,
passage, and signing into law of the 2011 Plan.
2. Communications involving Governor Corbett referring
or relating to the 2011 Plan.
3. Involvement of the REDistricting Majority Project
(REDMAP), the RNC, or any non-Pennsylvania
organizations with development of the 2011 Plan.
4. The considerations or criteria that were used to develop
the 2011 Plan, such as compactness, contiguity, keeping
political units or communities together, equal population,
race or ethnicity, incumbent protection, a voter[’s] or
area’s likelihood of supporting Republican or Democratic
candidates, and any others.
5. How each consideration or criterion was measured,
including the specific data and specific formulas used in
assessing compactness and partisanship.
6. How each consideration or criterion or [sic] affected
the 2011 Plan, including any rule or principle guiding the
3
use of each consideration or criteria in developing
the 2011 Plan.
7. The goals and expected election outcomes of
the 2011 Plan.
(Id.)
Along with the subpoena, Petitioners caused this Court’s order, dated
November 22, 2017, to be served on Governor Corbett.1
In response to the subpoena, Governor Corbett filed the subject
application to quash, averring that all of the documents and/or information sought
from Governor Corbett in the subpoena are protected from disclosure by a number
of privileges, including the executive privilege, the deliberative process privilege,
and the attorney-client privilege.
With regard to subpoenas in the context of assertions of privilege, the
Commonwealth Court has explained:
Subpoenas are one of many different discovery
tools. The essential purpose of discovery is to give each
side access to all information reasonably calculated to lead
to the discovery of relevant, non-privileged information
possessed by the other side, as well as limited access to
information held by non-parties. Information, that is not
otherwise privileged, is discoverable if it is both relevant
and reasonable. Whether information is relevant depends
upon the nature and the facts of the case, and any doubts
are to be resolved in favor of relevancy.
The objector to a discovery request must
demonstrate non-discoverability.
1
Relevant to the subpoena served on Governor Corbett, the Court, in its order dated
November 22, 2017, recognized the Court’s inability to compel production of testimony or
documents with respect to matters protected by the legislative privilege arising under the Speech
and Debate Clause of the Pennsylvania Constitution, asserted by various legislative respondents.
See Pa. Const., Art. 2, § 15.
4
Ario v. Deloitte & Touche, LLP, 934 A.2d 1290, 1292-93 (Pa. Cmwlth. 2007)
(internal citations omitted).
As discussed in this Court’s November 22, 2017 order, the General
Assembly and its staff enjoy protection from judicial interference with their
legitimate legislative activities under the Speech and Debate Clause of the
Pennsylvania Constitution. See Pa. Const., Art. 2, § 15. The Pennsylvania
Constitution, however, does not expressly provide a similar protection for the
executive branch of state government. Moreover, with the exception of requests
made pursuant to the Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6,
65 P.S. §§ 67.101-67.3104,2 the General Assembly has not codified any similar
privilege for the executive branch. Thus, any privilege available to a Governor of
Pennsylvania necessarily must derive, to some extent, from common law doctrine or
constitutional concepts.
The common law doctrine of governmental privilege for executive
branch members consists largely of the executive privilege and, in some
jurisdictions, the deliberative process privilege. Van Hine v. Dep’t of State,
856 A.2d 204, 208 (Pa. Cmwlth. 2004). To the extent that these privileges exist in
Pennsylvania,3 both state and federal courts of Pennsylvania have held that the
deliberative process privilege and the executive privilege are coterminous, as both
“protect[] documents whose disclosure would ‘seriously hamper the function of
2
See Section 708(b)(10)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A).
3
The Pennsylvania Supreme Court has expressly adopted the common law deliberative
process privilege for members of the judicial branch of government. See United Judicial Sys. v.
Vartan, 733 A.2d 1258, 1266 (Pa. 1999). In the plurality opinion in Vartan, our Supreme Court
discussed the privilege in the context of protecting judicial branch deliberations by Supreme Court
members regarding a lease for the construction of a building for the Commonwealth Court. Id.The Supreme Court, however, has not yet expressly adopted the deliberative process privilege for
the executive branch of government.
5
government.’” See id. at 208. The privileges, however, require somewhat different
analyses. See id. at 208-12.
Moreover, when it comes to use of judicial process against a Governor
of this Commonwealth, the Pennsylvania Supreme Court historically has exercised
restraint, given that the Governor is the head of a co-equal branch of government.
See Harding v. Pinchot, 159 A. 16 (Pa. 1932). In Harding, the Supreme Court
opined:
[I]t may be well to repeat that when we, in the past,
refrained from issuing judicial process against the
Governor, in deference to the fact that he represents a
co-ordinate branch of the government . . . , this court did
not divest itself of power to issue judicial process to him
in an appropriate case. The rule enunciated in [Appeal of
Hartranft, 85 Pa. 433 (1877),] was that, where it was
sought to compel the Governor by judicial process and he
made answer that the decree prayed for would interfere
with the proper performance of his executive duties, the
courts would not issue mandamus to compel him to act.
However, it should not be forgotten that the people are
sovereign and their Constitution is the fundamental law.
That Constitution provides: ‘All courts shall be open; and
every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of
law, and right and justice administered without sale, denial
or delay.’ Article 1, § 11. This court has at no time
declared that, in our bounden duty to protect the
Constitution and constitutional rights of Pennsylvania
citizens, we may not in extreme cases restrain even the
Governor. Although it is true that we will not issue
judicial process to the chief executive except in a case of
magnitude, yet where his action is in conflict with
constitutional provisions, it is still the law that we retain
the power thus to proceed should he act unconstitutionally
so as to divest private rights or dispose of public property.
‘It is idle to say the authority of each branch is defined and
limited in the constitution, if there be not an independent
power able and willing to enforce the limitations. From
6
its every position, it is apparent that the conservative
power is lodged with the judiciary.’
Id. at 18 (emphasis added) (internal citations omitted).
The Supreme Court in Harding cited its earlier decision in Hartranft as
the basis for the general proposition that only in “extreme cases” would the Supreme
Court restrain the Governor, such as in instances “where his action is in conflict with
constitutional provisions.” Id. at 18. Hartranft involved the issuance of a grand
jury attachment to the Governor and other executive branch officials for the purpose
of investigating riots in the City of Pittsburgh. The Pennsylvania Supreme Court, in
considering whether a grand jury may issue an attachment against then Governor
Hartranft and other executive branch officials, noted that the grand jury attached
Governor Hartranft and the other officials in their official capacities and not as
citizens. The Supreme Court concluded that Governor Hartranft could not be
compelled to testify under those circumstances. In so concluding, the Supreme
Court opined:
Every department of the government has its secrets
of state, or privileged communications, which it is not only
the right of the officers to refuse to disclose, but his duty
to withhold. The official transactions between the heads
of the departments of state and their subordinate officers
are in general treated as privileged communications. . . .
The president of the United States, and the governors of
the several states, are not bound to produce papers or
disclose information communicated to them when, in their
own judgment, the disclosure would, on public
considerations, be inexpedient.
....
The courts cannot compel the Governor to perform
any duties appertaining to his office; nor can they interfere
with his discharge of them, nor control him in any matter
of executive discretion.
7
Hartranft, 85 Pa. at 438-39 (citations omitted). The Supreme Court further
recognized that “[t]he Governor can be punished in but one way for an abuse or
misuse of his power, and that is by impeachment.” Id. at 439.
With regard to the inquiry into the riots, the Supreme Court stated: “[I]f
the Governor, as supreme executive, and as commander-in-chief of the army of the
Commonwealth, is charged with the duty of suppressing domestic insurrections, he
must be the judge of the necessity requiring the exercise of the powers with which
he is clothed.” Id. at 444. With regard to the duties, powers, and privileges of the
Governor, the Supreme Court observed that those duties involved the constitutional
power “to approve, or veto, bills submitted to him by the General Assembly.” Id.In Hartranft, the Supreme Court then asked: “Where does . . . any . .
. court . . . get the power to call [the Governor] before it, and compel him to answer
for the manner in which he has discharged his constitutional functions as executor
of the laws . . . ?” Answering that question, the Supreme Court wrote:
We had better at the outstart recogni[z]e the fact, that the
executive department is a co-ordinate branch of the
government, with power to judge what should or should
not be done, within its own department, and what of its
own doings and communications should or should not be
kept secret, and that with it, in the exercise of these
constitutional powers, the courts have no more right to
interfere, than has the executive, under like conditions, to
interfere with the courts. In the case of Oliver v.
Warmouth, 22 La. 1, it was held (per Taliafero, J.), that,
under the division of powers, as laid down in the federal
and state constitutions, the judiciary department has no
jurisdiction over or right to interfere with, the independent
action of the chief executive, in the functions of his office,
even though the act he is required to perform be purely
ministerial. This is putting the matter on very high
grounds, for, in such case, no other officer would be
exempt from the mandatory power of the judiciary. No
case could more forcibly exhibit the extreme reluctance of
8
courts to interfere with the functions of the supreme
executive, for the hypothesis put is the refusal of the
Governor to perform a duty, cast upon him by law, of a
character strictly ministerial. We think, however, that the
ground upon which this decision stands, is substantial; for,
as the learned justice well argues, the difficulty arises in
the attempt to establish a distinction between ministerial
and discretionary acts as applied to the Governor, and then
to conclude that the former may be enforced by judicial
decree; it is objected, however, that the doctrine is
unsound in this, that it gives to the judiciary the large
discretion of determining the character of all acts to be
performed by the chief executive; that this would infringe
his right to use his own discretion in determining the very
same question; that he must, necessarily, have the
unconditional power of deciding what acts his duties
require him to perform, otherwise, his functions are
trammelled and the executive branch of the government is
made subservient to the judiciary. The principle
enunciated, in the above stated case, applies with greater
force to that we now have under consideration; for if the
Governor’s discretion may not be interfered with, in a
matter purely ministerial, much more may that discretion
not be interfered with in a case which pertains to his office
and duties as commander-in-chief, in the discharge of
which, the constitution makes that discretion his peculiar
and absolute prerogative.
Id. at 445-46.
As to the attachment served on Governor Hartranft, were the Supreme
Court “to permit the attempt to enforce this attachment, an unseemly conflict must
result between the executive and judicial departments of the government[, and] . . .
prudence would dictate the avoidance of a catastrophe such as here indicated.” Id.
at 446. The Supreme Court opined:
The Governor cannot be examined as to his reasons for not
signing the bill, nor as to his action, in any respect,
regarding it. . . . [The Court] will make no order on him
for that purpose. Such order ought not to be made against
the executive of the state, because it might bring the
9
executive in conflict with the judiciary. If the executive
thinks he ought to testify, in compliance with the opinion
of the court, he will do so without order; if he thinks it to
be his official duty, in protecting the rights and dignity of
his office, he will not comply, even if directed by an order.
Id. at 446-47. Ultimately, the Supreme Court set aside the attachment.
Thus, the Supreme Court in Hartranft recognized a chief executive
privilege enjoyed by the Governor, which appears to be broader (and perhaps more
absolute although not entirely absolute) than the concepts of executive privilege and
deliberative process privilege addressed by Governor Corbett and Petitioners.
Whereas the chief executive privilege relates to the Governor, the executive and
deliberative process privileges potentially available to executive branch officials, in
general, are more narrow and qualified than the chief executive privilege described
by the Supreme Court in 1877.
As to the continuing validity of the privilege recognized in Hartranft,
our Supreme Court in Costello v. Rice, 153 A.2d 888 (Pa. 1959), cited Hartranft,
observing that “[i]t was held more than eighty years ago by this court, under the
present Constitution, that the Governor is exempt from the process of the courts
whenever engaging in any duty pertaining to his office and that his immunity from
judicial process extends to his subordinates and agents when acting in their official
capacity.” Costello, 153 A.2d at 892.
With regard to the executive privilege, the Commonwealth Court has
noted that executive privilege is not absolute and must be demonstrated on a
case-by-case basis. Van Hine, 856 A.2d at 208. In order to assert a claim of
executive privilege, one must establish that: (1) the head of the executive agency
claiming the privilege personally reviewed the material sought to be protected;
(2) there is a “specific designation and description of the documents claimed to be
10
privileged;” and (3) there are “precise and certain reasons for preserving” the
confidentiality of the communications. Id. Usually, claims of executive privilege
are made by affidavit. Id. Thereafter, the court must “perform a balancing function,”
weighing “the interest of the government in ensuring the secrecy of the documents
in question as opposed to the need of the private party to obtain discovery.” Id. The
relative degree of the conflicting necessities will be outcome determinative. Id. This
analysis would appear to be applicable to both subpoenas for the production of
documents and subpoenas to appear and provide testimony.
In performing this balancing function, the Commonwealth Court found
guidance from the federal courts in identifying pertinent factors, known as the
Frankenhauser factors, to consider when balancing the interests of the government
in ensuring the secrecy of documents against the need of a private party to obtain
discovery:
(1) the extent to which disclosure will thwart
governmental processes by discouraging citizens from
giving the government information;
(2) the impact upon persons who have given information
of having their identities disclosed;
(3) the degree to which governmental self-evaluation and
consequent program involvement will be chilled by
disclosure;
(4) whether the information sought is factual data or
evaluative summary;
(5) whether the party seeking the discovery is an actual
or potential defendant in any criminal proceeding either
pending or reasonably likely to follow from the incident in
question;
(6) whether the police investigation has been completed;
(7) whether any intradepartmental disciplinary
proceedings have arisen or may arise from the
investigation;
11
(8) whether the [p]etitioner’s suit is non-frivolous and
brought in good faith;
(9) whether the information sought is available through
other discovery or from other sources; and
(10) the importance of the information sought to the
[p]etitioner’s case.
Id. at 209-10 (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 (E.D. Pa. 1973)).
The deliberative process privilege permits “the government to withhold
documents containing ‘confidential deliberations of law or policymaking, reflecting
opinions, recommendations or advice.’” Vartan, 733 A.2d at 1263 (plurality
opinion) (citing Redland Soccer Club, Inc. v. Dep’t of the Army of the United States,
55 F.3d 827, 853 (3d Cir. 1995)). The purpose for this privilege is to allow the free
exchange of ideas and information within government agencies. Vartan, 733 A.2d
at 1263.
The Commonwealth Court has recognized, on at least two occasions,
the applicability of the common law deliberative process privilege for the executive
branch. See KC Equities v. Dep’t of Pub. Welfare, 95 A.3d 918 (Pa. Cmwlth. 2014);
Deloitte & Touche, 934 A.2d at 129. Most recently, in KC Equities, the
Commonwealth Court considered the appeal of a decision to revoke a certificate of
compliance to operate a day care center and noted that the Department of Public
Welfare, Bureau of Hearings and Appeals, properly denied a request for issuance of
a subpoena, where the details sought by the subpoena were “protected by the
deliberative process privilege.” KC Equities, 95 A.3d at 934. The Commonwealth
Court, in KC Equities, did not provide any further analysis regarding that issue. Prior
to that, in 2007, this Court in Deloitte & Touche, held that communications between
the Governor’s staff and the Insurance Commissioner and her staff were part of the
12
deliberative process and, therefore, protected under the deliberative process
privilege.
In determining whether the deliberative process privilege applies, the
Commonwealth Court employs a three-prong analysis. Deloitte & Touche,
934 A.2d at 1293. The court must determine whether the communications (1) were
made before the deliberative process was completed; (2) whether the
communications were deliberative in character; and (3) whether the communications
were a direct part of the deliberative process in that the communications make
recommendations or express opinions on legal or policy matters. Id. (citing Vartan,
733 A.2d at 1264). Regarding the first and second prongs, the party asserting the
privilege must show that the information is both “pre-decisional” and “deliberative.”
Id. Information is pre-decisional if it “reflects matters leading to a final decision of
an agency,” and the information is deliberative if it “reflects the process the agency
used to reach the decision.” Id. The government bears the initial burden to prove
that the deliberative process privilege is applicable. Joe v. Prison Health Services,
Inc., 782 A.2d 24, 33 (Pa. Cmwlth. 2001). To meet its burden, the government must
present more than a bare conclusion or statement that the documents sought are
privileged; otherwise, the government agency, not the court, would have the power
to determine the availability of the privilege. Id.As with the executive privilege, after the initial requirements are met,
the court must engage in a balancing of factors to determine whether the privilege
should be applied. Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1027 (Pa.
Cmwlth. 2006). In One Beacon, the Commonwealth Court again turned to
Frankenhauser for guidance, writing:
Such a privilege is not absolute; it must be demonstrated
on a case by case basis. The court is called on to perform
13
a balancing function—the interest of the government in
ensuring the secrecy of the documents in question as
opposed to the need of the private party to obtain
discovery. The relative degree of the conflicting
necessities will determine how each case is decided.
Id. (quoting Frankenhauser, 59 F.R.D. at 343 (citations omitted)). Thus, it appears
that the balancing test in Frankenhauser may also be relevant to an analysis of the
deliberate process privilege.
Importantly, the deliberative process privilege does not apply to factual
information, “so long as the factual information is severable from the advice or
underlying confidential deliberations of law or policymaking.” Deloitte & Touche,
934 A.2d at 1293. “Purely factual information, even if used by decision-makers in
their deliberations, is usually not protected” by the deliberative process privilege.
One Beacon, 911 A.2d at 1027. Moreover, courts must narrowly construe the
deliberative process privilege. Id.It is noteworthy that Governor Corbett is not a party to this action.
There are no allegations in the Petition for Review of any wrongdoing by Governor
Corbett. Indeed, as pled, Governor Corbett’s only connection to the legislation
challenged in this action is set forth in paragraph 76 of the Petition for Review:
“Pennsylvania’s Republican Governor, Tom Corbett, signed the bill into law in time
for the 2002 (sic) U.S. Congressional election.” In other words, Governor Corbett’s
only alleged connection to this lawsuit is that he exercised his express power under
Article IV, Section 15 of the Pennsylvania Constitution to approve or veto
legislation:
Every bill which shall have passed both Houses shall be
presented to the Governor; if he approves he shall sign it,
but if he shall not approve he shall return it with his
objections to the House in which it shall have originated,
14
which House shall enter the objections at large upon their
journal . . . .
At base, this action is a constitutional challenge to legislation4 enacted by the
General Assembly and signed into law by the then-sitting Governor of the
Commonwealth of Pennsylvania. Although this particular legislation is unique in
that it relates to a subject that arises once every ten years (or so), this Court routinely
hears and decides challenges to allegedly unconstitutional legislation signed by a
Governor. Moreover, in terms of the subject matter, the General Assembly is the
branch of state government constitutionally charged with power and duty to draw
the congressional districts,5 not the Governor. The Governor merely approves,
vetoes, or fails to act the legislative bill setting Congressional districts as sent to him
by the General Assembly.
Relying on the precedent set forth above, the Court concludes that with
respect to his connection to Act 131 of 2011, Governor Corbett is clothed in the chief
executive privilege set forth in Hartranft. This privilege protects a Governor
(current and former) from state court compulsion to give testimony or produce
records in legal proceedings challenging the constitutionality of legislation where
the chief executive exercised his constitutional authority to act on legislation
presented to him by the General Assembly. The chief executive privilege implicates
higher or greater separation of powers issues than those encompassed in the lesser
executive and deliberative process privileges. As the Supreme Court explained in
Harding, it “will not issue judicial process to the chief executive except in a case of
4
The Congressional Redistricting Act of 2011, Act of December 22, 2011, P.L. 599, 25
P.S. §§ 3596.101-.150 (Act 131 of 2011).
5
“The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by
Law make or alter such Regulations . . . .” U.S. Const. art. I, § 4.
15
magnitude,” such as “where his action is in conflict with constitutional provisions.”
To hold otherwise would subject a Governor to unconstitutional interference in his
exercise of his constitutional powers and duties and subject him to examination on
every piece of legislation that the General Assembly enacts, thereby creating
potential for conflict between co-equal branches of government.
Petitioners have not offered any precedent, let alone a compelling
interest or need, to convince this Court that it should compel a former Governor to
appear, produce documents, and testify in a lawsuit challenging the constitutionality
of legislation that he approved as Governor under his sole constitutional authority.
Moreover, Petitioners do not identify an action in conflict with constitutional
provisions pertaining to the executive branch in which Governor Corbett engaged,
let alone any action of such a magnitude as to warrant this Court’s interference as
required by Harding. As important as this case is, Petitioners offer nothing to the
Court that would justify such an exertion of judicial authority over the
Commonwealth’s chief executive, whether current or former. Pa. Const. art. IV, § 1
(“The supreme executive power shall be vested in the Governor . . . .”).
AND NOW, this 30th day of November, 2017, with the foregoing legal
principles in mind, the application to quash subpoena directed to the Honorable
Thomas W. Corbett is hereby GRANTED, and the subpoena is QUASHED.
P. KEVIN BROBSON, Judge
16