Sen. J. Costa v. Sen. K. Ward & Sen. J. Coleman

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Senator : CASES CONSOLIDATED
Anthony H. Williams, Senator :
Vincent J. Hughes, Senator Steven J. :
Santarsiero and Senate Democratic :
Caucus, :
Petitioners :
:
v. : No. 310 M.D. 2021
: Argued: September 12, 2022
Senator Kim Ward and Senator :
Jarrett Coleman, :
Respondents :
Commonwealth of Pennsylvania, :
Pennsylvania Department of State, :
and Leigh M. Chapman, Acting :
Secretary of the Commonwealth :
of Pennsylvania, :
Petitioners :
:
v. : No. 322 M.D. 2021
:
Senator Jarrett Coleman, Senator :
Kim Ward and The Pennsylvania :
State Senate Intergovernmental :
Operations Committee, :
Respondents :
Arthur Haywood :
Julie Haywood, :
Petitioners :
:
v. : No. 323 M.D. 2021
:
Leigh M. Chapman :
Acting Secretary of State :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: February 9, 2023
Before the Court are the consolidated petitions for review filed by the
Commonwealth of Pennsylvania, Department of State, and the Acting Secretary of
the Commonwealth, Leigh M. Chapman1 (collectively, Acting Secretary); Senators
Jay Costa, Anthony H. Williams, Vincent J. Hughes, and Steven J. Santarsiero, and
the Senate Democratic Caucus (collectively, Democratic Senators); and Arthur
Haywood and Julie Haywood (collectively, the Haywoods) (collectively,
Petitioners).2 Intervention was granted to the League of Women Voters of
Pennsylvania, Common Cause Pennsylvania, Make the Road Pennsylvania, and
eight registered voters (collectively, Voter Intervenors). Petitioners and Voter
Intervenors challenge a subpoena duces tecum issued on September 15, 2021, by the
Pennsylvania State Senate Intergovernmental Operations Committee (Senate
Committee or Committee) to the Acting Secretary of the Commonwealth, to produce
copies of certain election-related documents and deliver them to the General Counsel
of the Senate Republican Caucus.3 Petitioners and Voter Intervenors seek to enjoin
the subpoena. For the reasons that follow, we dismiss the petitions for review.
1
At the time this matter was initiated, the Acting Secretary was Veronica Degraffenreid, and she
was followed by Acting Secretary Leigh M. Chapman.
2
The Haywoods filed their petition for review against the Acting Secretary. However, they
essentially seek to restrain enforcement of the legislative subpoena.
3
After the 2023-2024 legislative session was convened, a praecipe to substitute certain senator
parties was filed. No party has requested dismissal of the consolidated petitions for review on
grounds of mootness.
2
Background
The Senate Committee’s subpoena duces tecum seeks the production of
17 categories of election-related documents filed with and maintained by the
Department of State. Included therein is a request for a list of all electors who voted
in the November 2020 general election, by county, and the manner of their vote
whether in person, by mail-in ballot, by absentee ballot, or by provisional ballot.
The subpoena requests the same list, in the same format, for the May 2021 primary
election. This requested information is contained in the Statewide Uniform Registry
of Electors (SURE) system, 25 Pa. C.S. §12224 (as identified in what is known as
the Pennsylvania Voter Registration Act, 25 Pa. C.S. §§701-3302). The subpoena
requests a list of voter registration changes made in the SURE system between May
31, 2020, and May 31, 2021, and copies of the Department of State’s audits of the
SURE system between 2018 and 2021. Finally, the subpoena requests a copy of the
certified results for the two elections.
Petitioners and Voter Intervenors seek to enjoin the subpoena because
they believe it does not have a valid legislative purpose. They assert that the Senate
Committee’s true purpose is to challenge the outcome of the 2020 presidential
election, which is a matter conferred exclusively upon the judiciary and governed by
4
The SURE system is a single, uniform, integrated computer system that includes a database of
all registered electors in the Commonwealth. To ensure the integrity and accuracy of all voter
registration records, the SURE system assigns a unique registration number to each individual
registered to vote in the Commonwealth; provides for the electronic transfer of completed voter
registration applications and changes of address; permits the auditing of each registered elector’s
registration record; identifies the election district to which a qualified elector or registered elector
should be assigned; produces reports as required; identifies duplicate voter registrations on a
countywide and statewide basis; identifies registered electors who have been issued absentee
ballots under the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as
amended, 25 P.S. §§2600-3591; and identifies registered electors who vote in an election and the
method by which their ballots were cast. See 25 Pa. C.S. §1222(c).
3
the Election Code.5 Further, because the requested database includes voters’ names,
addresses, dates of birth, driver’s license numbers, and the last four digits of their
social security numbers, compliance with the subpoena may compromise the
informational privacy rights of registered voters that are protected by the
Pennsylvania Constitution.6
More specifically, the Acting Secretary’s injunction petition asserts that
the subpoena duces tecum is invalid and unenforceable because it:
i. Was not issued for a legitimate legislative purpose;
ii. Concerns matters outside the Committee’s subject matter
area;
iii. Was issued without probable cause to seek information in
which Pennsylvanians have a reasonable expectation of
privacy;
iv. Demands information protected by the deliberative
process privilege; and
v. Is overbroad.
Acting Secretary’s Petition for Review, Prayer for Relief at 74. The Democratic
Senators’ injunction petition also asserts that the Senate Committee issued the
subpoena to contest the 2020 general election or to do an election audit, either of
which violates the separation of powers doctrine.7 Further, the requested voter
5
Section 1758 of the Election Code, 25 P.S. §3458, provides that an election outcome can be
contested by filing a petition with the court having jurisdiction over the matter.
6
Article I, section 1 of the Pennsylvania Constitution states that “[a]ll men are born equally free
and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” PA. CONST. art. I, §1. This provision creates a
right to informational privacy.
7
In regard to the concept of separation of powers, our Supreme Court recently stated:
In our Commonwealth, the roots of the separation of powers doctrine run deep. The
delineation of the three branches of government, each with distinct and independent
powers, has been inherent in the structure of Pennsylvania’s government since its
genesis - the constitutional convention of 1776. Indeed for most of our
4
information is protected from public disclosure by the voter’s constitutional right of
informational privacy. Also asserting a right to informational privacy, the
Haywoods seek to enjoin the Acting Secretary from disclosing their voter
registration information contained in the SURE system. Voter Intervenors support
the above-listed injunction petitions on the theory that the subpoena request is
overbroad, is not for a valid legislative purpose, and implicates the informational
privacy rights of the individual Voter Intervenors and the members of the association
intervenors.
Petitioners and Voter Intervenors filed applications for summary relief
requesting an immediate and permanent injunction.8 The Senate Committee
responded with its own application for summary relief, asserting that the
Pennsylvania Constitution permits the legislature to conduct an investigation that
may aid legislators in determining whether, or in what manner, they should consider
amendments to the Election Code. The Senate Committee asserted that the
informational privacy rights of registered voters are not implicated when information
in the possession of the executive branch is shared with another branch of the
Commonwealth government, whether legislative or judicial.
In a memorandum opinion and order filed on January 10, 2022, this
Court denied all the applications for summary relief because the parties did not
Commonwealth’s history, our Court has vigorously maintained separation of the
powers of the branches[.]
Renner v. Court of Common Pleas of Lehigh County, 234 A.3d 411, 420 (Pa. 2020) (internal
citations omitted).
8
Democratic Senators also filed a request for a preliminary injunction. However, that request was
stayed by an agreement of the Senate Committee not to enforce the subpoena while the Court
considered the injunction petitions and the applications for summary relief.
5
establish a clear right to the relief they sought.9 Costa v. Corman (Pa. Cmwlth., No.
310 M.D. 2021, filed January 10, 2022); Pennsylvania Department of State v. Dush
(Pa. Cmwlth., No. 322 M.D. 2021, filed January 10, 2022); Haywood v. Chapman
(Pa. Cmwlth., No. 323 M.D. 2021, filed January 10, 2022) (cases consolidated).
Subsequent to the denial of summary relief, the Court directed the
parties to address three questions: (1) whether the petitions for review were ripe for
review; (2) whether the availability of an adequate remedy at law precludes the
Court’s exercise of equity jurisdiction over a challenge to a legislative subpoena;
and (3) whether the General Assembly’s constitutional enforcement power or the
criminal contempt statute precludes the Court’s exercise of equity jurisdiction.
Court Order, 1/25/2022. Briefs were filed by all parties.
In her brief, the Acting Secretary argues that the matter is ripe for
review because an actual controversy was created by the mere issuance of the
subpoena duces tecum. The General Assembly’s enforcement power exposes the
Acting Secretary to arrest, detention, and criminal sanctions should this Court not
exercise its equity jurisdiction. Democratic Senators, the Haywoods, and Voter
Intervenors echo these arguments. Applying principles developed under the Right-
to-Know Law,10 they argue that the Acting Secretary cannot disclose the voters’
driver license numbers and last four digits of their social security numbers to a third
party without balancing the private informational interest against the public interest
in disclosure. See Pennsylvania State Education Association v. Commonwealth
Department of Community and Economic Development, 148 A.3d 142, 158 (Pa.
9
However, the Court granted the cross-application for summary relief filed by the Senate
Secretary-Parliamentarian Megan Martin. The Court agreed that the Democratic Senators did not
state a claim against her, and, thus, she was dismissed as a named respondent.
10
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
6
2016) (PSEA) (holding that “[t]he right to informational privacy is guaranteed by
[a]rticle I, [s]ection 1 of the Pennsylvania Constitution, and may not be violated
unless outweighed by a public interest favoring disclosure”). Until the Senate
Committee explains how the voter database information relates to potential
legislation, the Acting Secretary cannot do this balancing of public and private
interests, as she must before disclosing this information to a third party, i.e., the
Senate Committee. Democratic Senators, the Haywoods, and Voter Intervenors
observe that the Senate Committee’s enforcement of the subpoena may provide the
Acting Secretary a proceeding in which to raise her constitutional objections to the
subpoena; however, because they have not been issued a subpoena, they are not
guaranteed the opportunity to challenge the subpoena.
The Senate Committee responds that the legislature is not a third party,
as suggested by the Acting Secretary. The General Assembly is the Commonwealth
of Pennsylvania, as is the Secretary of the Commonwealth.11 The subpoena duces
11
As we have explained, the “Commonwealth is a single entity that has organized itself into
agencies and instrumentalities to perform specific functions.” Gillen v. Workers’ Compensation
Appeal Board (Pennsylvania Turnpike Commission), 253 A.3d 362, 370 (Pa. Cmwlth. 2021). In
Lyness v. State Board of Medicine, 605 A.2d 1204, 1209 (Pa. 1992), the Supreme Court noted that
“each administrative board and judge is ultimately a subdivision of a single entity, the
Commonwealth of Pennsylvania.” The Acting Secretary offers no authority for her position that
the Department of State cannot share records it is required by statute to maintain with the
legislative branch of a single entity, the Commonwealth of Pennsylvania, or that this sharing
constitutes “public” disclosure or implicates informational privacy. See also J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 406 (1928) (noting that “our Federal Constitution and state
Constitutions of this country divide the governmental power into three branches . . . [which are]
coordinate parts of one government . . . .”).
Voter Intervenors observe that in Chester Housing Authority v. Polaha, 173 A.3d 1240 (Pa.
Cmwlth. 2017), informational privacy was implicated where a township requested a list of voucher
recipients from the housing authority. This case is inapposite because it does not address two
branches of one government. Rather, a housing authority and a township are separate entities,
each created by the legislature in a separate enactment.
7
tecum was issued under the express authority of the Pennsylvania Constitution and,
as such, bears no relation to a citizen request for information presented to the
Department of State under authority of a statute, i.e., the Right-to-Know Law. The
Senate Committee also questions the sincerity of the informational privacy claim,
noting that one of the Voter Intervenors, the League of Women Voters, subpoenaed
this very same voter registration information in its challenge to the voter
identification law on grounds that the statute would suppress the exercise of the
franchise. See Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012). In that
litigation, this Court directed the Department of State to provide this voter
information in discovery so that the League of Women Voters’ consultant could
prepare an expert report for use in the litigation. Applewhite v. Commonwealth (Pa.
Cmwlth., No. 330 M.D. 2012, filed April 29, 2013) (Simpson, J., single-judge order)
(directing the Department of State to disclose the names, addresses, partial Social
Security numbers, and driver’s license and non-driver’s identification numbers, of
all voters in the SURE system, along with information from the Pennsylvania
Department of Transportation’s database that included date of birth, current address,
county code, sex, and prior name and address).
Nevertheless, the Senate Committee asserts that this Court need not
address the merits of the constitutional arguments raised by Petitioners and Voter
Intervenors at this juncture. There has been no “confrontation,” which is required
in order to have an actual controversy ripe for judicial review. When, and if, the
Senate Committee takes action to enforce its subpoena in accordance with its
constitutional enforcement power, the Acting Secretary then may raise any and all
of her legal and constitutional claims. The civil and criminal contempt statutes also
provide legal remedies that preclude this Court from exercising equity jurisdiction.
8
On September 12, 2022, Petitioners, Voter Intervenors, and the Senate
Committee presented oral argument on the questions raised by this Court’s January
25, 2022, order. Oral argument was heard seriately with Pennsylvania Senate
Intergovernmental Operations Committee v. Pennsylvania Department of State, __
A.3d __ (Pa. Cmwlth., No. 95 M.D. 2022, filed February 9, 2023).
Legislative Subpoena Power
We begin with a review of the principles that govern a legislative
subpoena. This includes a review of the circumstances where the judiciary has
become involved in the enforcement of a legislative subpoena.
“The legislative power of this Commonwealth shall be vested in a
General Assembly, which shall consist of a Senate and a House of Representatives.”
PA. CONST. art. II, §1. “Each House shall have power to determine the rules of its
proceedings and . . . to enforce obedience to its process . . . and shall have all other
powers necessary for the Legislature of a free State.” Id. §11.12
Among the powers “necessary for the Legislature” is the power to
conduct investigations. PA. CONST. art. II, §11. Our Supreme Court has explained
that the legislature’s “power to investigate is an essential corollary of the power to
legislate” and that “[t]he scope of this power of inquiry extends to every proper
12
It reads, in its entirety:
Each House shall have power to determine the rules of its proceedings and punish
its members or other persons for contempt or disorderly behavior in its presence, to
enforce obedience to its process, to protect its members against violence or offers
of bribes or private solicitation, and, with the concurrence of two-thirds, to expel a
member, but not a second time for the same cause, and shall have all other powers
necessary for the Legislature of a free State. A member expelled for corruption
shall not thereafter be eligible to either House, and punishment for contempt or
disorderly behavior shall not bar an indictment for the same offense.
PA. CONST. art. II, §11.
9
subject of legislative action.” Commonwealth ex rel. Carcaci v. Brandamore, 327
A.2d 1, 3 (Pa. 1974) (Brandamore). “It is well established that a function of
legislative committees is to find facts and to make recommendations to the
legislature for remedial legislation and other appropriate action.” Lunderstadt v.
Pennsylvania House of Representatives Select Committee, 519 A.2d 408, 410 (Pa.
1986) (plurality opinion). As our Supreme Court has explained:
The right to investigate in order to acquire factual knowledge
concerning particular subjects which will, or may, aid the
legislators in their efforts to determine if, or in what manner, they
should exercise their powers, is an inherent right of a legislative
body, ancillary to, but distinct from, such powers.
McGinley v. Scott, 164 A.2d 424, 429 (Pa. 1960). Nevertheless, there are limits to
the legislature’s investigations, lest the legislature impermissibly encroach upon a
citizen’s individual freedoms.
In Brandamore, 327 A.2d 1, our Supreme Court considered the appeal
of Angelo J. Carcaci, a lieutenant in the Pennsylvania State Police who refused to
answer questions put to him by a special committee of the House of Representatives
investigating law enforcement agencies in the Commonwealth. The Supreme Court
upheld Carcaci’s conviction for contempt and his commitment until expiration of
the legislative session unless “he should sooner purge himself by testifying before
the committee.” Id. at 2. Accordingly, it affirmed the dismissal of Carcaci’s petition
for a writ of habeas corpus. Finally, the Court rejected Carcaci’s claim that the
subpoena lacked a legislative purpose. After examining the House resolution
authorizing the investigation, the Supreme Court concluded that “[l]aw enforcement
and the administration of justice are public functions” and “proper subjects for
legislative action.” Id. at 4. It also rejected Carcaci’s challenge to his conviction for
10
contempt of the House of Representatives, concluding that it fully comported with
due process.
In obiter dictum, the Supreme Court acknowledged that the
legislature’s broad investigatory powers are subject to “limitations placed by the
Constitution on governmental encroachments on individual freedom and privacy.”
Brandamore, 327 A.2d at 4. With regard to that limitation, the Supreme Court
explained that there must be a “balance between the protection of the rights of the
individual and the avoiding of unnecessary restraint upon the State in the
performance of its legitimate governmental purposes.” Id. (quoting In re
Pennsylvania Crime Commission, 309 A.2d 401, 407 (Pa. 1973)).
For this balancing test, our Supreme Court drew upon the United States
Supreme Court’s holding in Barenblatt v. United States, 360 U.S. 109 (1959), which
reviewed Barenblatt’s contempt conviction for refusing to answer questions about
his participation in Communist Party activities. The United States Supreme Court
acknowledged that where “First Amendment rights are asserted to bar governmental
interrogation, resolution of the issue always involves a balancing by the courts of the
competing private and public interests at stake in the particular circumstances
shown.” Id. at 126. The United States Supreme Court concluded that because the
investigation related to a valid legislative purpose, the witness could be required to
disclose his political and private relationships. It rejected Barenblatt’s contention
that “the true objective of the [c]ommittee” was “exposure,” not legislation,
explaining that “the [j]udiciary lacks authority to intervene on the basis of the
motives which spurred the exercise of the power.” Id. at 132.13 The remedy for “a
13
See also Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“In
determining the legitimacy of congressional [subpoena], we do not look to the motives alleged to
have prompted it.”); Committee on Ways and Means, United States House of Representatives v.
11
wrong motive or purpose” lies “not in the abuse by the judicial authority of its
functions, but in the people[.]” Id. at 132-33. The United States Supreme Court
upheld Barenblatt’s conviction for contempt of Congress.
To be sure, a subpoena can be restrained where it seeks to “investigate
the personal affairs” of the subpoena’s recipient without advancing a legislative
purpose. Annenberg v. Roberts, 2 A.2d 612, 617 (Pa. 1938). In Annenberg, the
subpoena in question was found to effect a warrantless search and seizure in
violation of the Fourth Amendment.14 As such, the commission had unlawfully set
itself up “as a court or grand jury.” Id.The controversy had its origins in the governor’s convening of a special
session of the General Assembly to consider “[m]aking illegal the use of devices or
methods of transmission of information or advices in furtherance of gambling.” Id.
at 614. The special session enacted the Act of October 11, 1938, P.L. 77, No. 27
(Act 27), which set up a six-person commission to investigate and make
recommendations for improvements in the criminal gambling laws. The statute gave
the commission the power to issue subpoenas and provided for penalties as
“provided by the laws of this Commonwealth in such cases,” without specifying
those laws. Annenberg, 2 A.2d at 615.
United States Department of Treasury, 45 F.4th 324, 333 (D.C. 2022) (Committee on Ways and
Means) (“The mere fact that individual members of Congress may have political motivations as
well as legislative ones is of no moment.”)
14
The Fourth Amendment to the United States Constitution provides that
the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV.
12
The plaintiff, John Annenberg, filed a bill of equity in the Court of
Common Pleas of Dauphin County to challenge the constitutionality of Act 27 and
to restrain the subpoena directing him to produce
“all records, including contracts, stock certificates, agreements
of trust, agreements of partnership, ledgers, journals, check-
books, cancelled checks, bank deposit books, pass books,
accounts, evidence of ownership, and memoranda, including
letters, telegrams, messages and memoranda received from, and
copies of letters, telegrams, messages and memoranda sent to”
thirty-eight named individuals, “showing [his] connection with
or interest in, either directly or indirectly, any or all companies,
holding companies, corporations, partnerships or associations,
directly or indirectly, engaged in or having to do with the
dissemination of sporting news in all forms and by any means,
including horse racing results distributed in the State of
Pennsylvania or elsewhere in the United States [or] Canada,
newspapers, racing sheets, dope sheets, form sheets, racing
records and statistics, and particularly with respect to the
following corporations or companies,” naming fifty-two
corporations.
Annenberg, 2 A.2d at 617 (quoting subpoena) (emphasis added). Annenberg argued
that the commission’s investigation into his personal financial affairs could be done
only pursuant to a court-approved search warrant, after a showing of probable cause,
or by a grand jury. Our Supreme Court agreed:
It would seem scarcely necessary to marshal authorities to
establish, as a proposition of constitutional law, that a witness
cannot be compelled, under the guise of a legislative study of
conditions bearing upon proposed legislation, to reveal his
private and personal affairs, except to the extent to which such
disclosure is reasonably required for the general purpose of the
inquiry. To compel an individual to produce evidence, under
penalties if he refuses, is in effect a search and seizure, and,
unless confined to proper limits, violates his constitutional right
to immunity in that regard.
13
Id. (emphasis added).
The Supreme Court rejected Annenberg’s various challenges to the
constitutionality of Act 27. However, it held that the subpoena’s demands for
production of documents violated Annenberg’s rights under the United States and
Pennsylvania Constitutions. Annenberg, 2 A.2d at 619. Citing precedent from other
state appellate courts and the United States Supreme Court, our Supreme Court
explained that individuals are entitled to protection “in the enjoyment of life, liberty
and property and from inquisitions into private affairs.” Id. at 618 (quoting Attorney
General v. Brissenden, 171 N.E. 82, 86 (Mass. 1930)) (emphasis added). The
information requested of Annenberg was found irrelevant to the “matters properly
being inquired into by the commission.” Annenberg, 2 A.2d at 618. Instead, the
court found that “[t]he subpoenas show on their face that they contemplate an
unreasonable search and seizure.” Id. (emphasis added).15 Because the subpoena
duces tecum sought to do the work of a grand jury, it lacked a valid legislative
purpose. Id.
Annenberg concerned a subpoena authorized by statute. However, in
Lunderstadt, 519 A.2d at 413, our Supreme Court applied the Annenberg principles
to a legislative subpoena issued under authority of the Pennsylvania Constitution
because of the importance of “an individual’s interest in maintaining privacy, under
15
In Commonwealth v. Costello, 21 Pa. D. 232 (1912), the Court of Quarter Sessions of the Peace
of Pennsylvania in Philadelphia County dismissed the criminal indictment against an individual
who refused to testify before a Senate committee. “Although the action of the Senate must be
presumed to have had a legitimate object, if it is capable of being so construed, and the court has
no right to assume that the contrary was intended, . . . its resolution, in our opinion, bears on its
face plain indications that when it was adopted the Senate had no proper legislative purpose in
view.” Id. at 234-35 (citation omitted). The court concluded that the Senate had established itself
as an extraordinary tribunal to exercise a judicial function. Further, the committee could not act
after the legislature had adjourned sine die. Id. at 237.
14
the Fourth Amendment and under article I, section 8 of the Pennsylvania
Constitution[.]”16 The Supreme Court warned:
[T]hat legislative investigations may, through inquisitions into
private affairs, assume a character that is of questionable
relevance to legitimate legislative purposes . . . . Indeed, in their
proper realm, legislative committees are not to set themselves up
as courts or as grand juries rather than as entities intended to
investigate and report on conditions for the information of
members of the legislature.
Lunderstadt, 519 A.2d at 413 (emphasis added). Where the legislature intrudes on
“one’s private affairs,” a subpoena cannot issue “except upon a showing of probable
cause that the particular records sought contain evidence of civil or criminal
wrongdoing.” Id. at 414-15. The Supreme Court reversed this Court’s refusal to
quash the subpoena to Carl Lunderstadt, a consultant for the Capitol addition project,
to produce five years of his checking account and personal financial records and
those of his family members. The concurring opinion of Justice Hutchinson would
have quashed the subpoena on another ground:
This resolution does not contain even a hint that the investigation
seeks to determine whether and what new law is needed to
correct abuses in state construction contracts. The function of
this investigating committee is limited to checking compliance
with existing law. That function is reserved to prosecutors,
police and grand juries.
Id. at 416 (Hutchinson, J., concurring) (emphasis added).
16
Article I, section 8 of the Pennsylvania Constitution provides that “the people shall be secure in
their persons, houses, papers and possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall issue without describing them as
nearly as may be, not, without probable cause, supported by oath or affirmation subscribed to by
the affiant.” PA. CONST. art. I, §8.
15
In sum, neither a legislative committee nor a commission established
by statute may set itself up as a grand jury or assume the function of a prosecutor.
Annenberg, 2 A.2d at 617. Any “inquisition” into private affairs will be presumed
to have a “questionable” legislative purpose. Lunderstadt, 519 A.2d at 413.
With these principles in mind, we turn to the question of whether the
Court should exercise its equity jurisdiction to intervene in the Senate Committee’s
subpoena for documents held by the Department of State at this juncture.
Analysis
I.
The first question raised by this Court’s order of January 25, 2022, was
whether the legislative subpoena is ripe for this Court’s review.
“Ripeness has been defined as the presence of an actual controversy; it
requires a court to evaluate the fitness of the issues for judicial determination, as
well as the hardship to the parties of withholding court consideration.” Borough of
Centralia v. Commonwealth, 658 A.2d 840, 842 (Pa. Cmwlth. 1995). “Court rulings
applying the ripeness doctrine are premised on policies of sound jurisprudence;
courts should not give answers to academic questions, render advisory opinions, or
make decisions based on assertions of hypothetical events that might occur in the
future.” Philips Brothers Electrical Contractors, Inc. v. Pennsylvania Turnpike
Commission, 960 A.2d 941, 945 (Pa. Cmwlth. 2008).17 To determine whether a
matter is ripe, the Supreme Court has instructed as follows:
17
In Philips Brothers, a prospective bidder petitioned for this Court’s review of the Turnpike
Commission’s dismissal of its bid protest, which was filed one year prior to the Commission’s
solicitation of bids on a proposed turnpike facility. This Court affirmed the Turnpike Commission.
We held that the prospective bidder could pursue a bid protest in accordance with the timetable set
forth in the Commonwealth Procurement Code, 62 Pa. C.S. §§101-2311, when and if it chooses to
do so. Philips Brothers, 960 A.2d at 946.
16
The factors we consider under our “adequately developed”
inquiry include: whether the claim involves uncertain and
contingent events that may not occur as anticipated or at all; the
amount of fact finding required to resolve the issue; and whether
the parties to the action are sufficiently adverse.
Township of Derry v. Pennsylvania Department of Labor and Industry, 932 A.2d 56,
58 (Pa. 2007) (internal quotation omitted) (emphasis added).
In Department of Environmental Resources v. Marra, 594 A.2d 646(Pa. 1991), a landowner sought to restrain enforcement of this Court’s injunction
that required him to disclose the location of certain paint solvents and waste removed
from his property, on grounds that the order violated his Fifth Amendment right
against self-incrimination.18 The Supreme Court held that the matter was not ripe
for review, explaining as follows:
In the present case, the Commonwealth has not sought to enforce
its injunction, the lower court has not yet had an opportunity to
hear appellant’s Fifth Amendment claim, and appellant herein
does not risk the imposition of greater sanctions by awaiting the
enforcement proceeding. It is possible that such proceedings will
never be initiated.
Id. at 648 (emphasis added).
In Camiel v. Select Committee on State Contract Practices of House of
Representatives, 324 A.2d 862 (Pa. Cmwlth. 1974), this Court was presented with a
request to quash a legislative subpoena on constitutional grounds. In an en banc
decision, we held that the mere issuance of a legislative subpoena does not create a
controversy that was ripe for review.
18
The Fifth Amendment to the United States Constitution provides, in part, that “[n]o person . . .
shall be compelled in any criminal case to be a witness against himself[.]” U.S. CONST. amend.
V.
17
In Camiel, the Pennsylvania House of Representatives, by resolution,
formed a select committee to
examine, investigate and make a complete study for the purpose
of informing the House of Representatives in the discharge of its
constitutional legislative functions and duties of any and all
matters pertaining to: (1) the administration, activities, methods
of operations, use of appropriations, use of funds and
expenditures thereof, policies, accomplishments and results,
deficiencies or failures, eff(i)ciency and effectiveness of State
agencies responsible for the purchasing, leasing, contracting, and
disposal of Commonwealth supplies, properties and services;
and (2) individuals, corporations, consultants, advisors,
authorities and entities within or outside the Commonwealth,
related to, involved in, or affecting the purchasing, leasing,
construction and disposal of Commonwealth property, supplies
and services[.]
Id. at 864. The select committee issued a subpoena duces tecum to the custodians of
records for the Republican and Democratic county committees of 12 counties in the
Commonwealth. The subpoena issued to Peter J. Camiel, the Chairman of the
Democratic County Executive Committee of Philadelphia County, sought
books, documents, accounts, records, indices, tapes, logs,
ledgers, and any and all other data pertaining to: (a) all
contributions received on or after January 1, 1966 through May
13, 1974, including but not limited to, any monies, goods,
services, or any other thing or things of value by the Democratic
County Executive Committee of Phila[delphia] County or any
other committee, group, or person operating under the authority
of the aforementioned committee; [and] (b) the name and address
of each of said contributors. The date, amount, and method of
payment (cash, check, money order, etc.)[.]
Id. at 864-65 (emphasis added). Camiel filed a petition for review to restrain the
subpoena.
18
Camiel’s petition asserted that the request was so broad and indefinite
that it violated his constitutional rights. Quoting Barenblatt, 360 U.S. at 111-12, we
acknowledged that “[b]road as it is, the power (to investigate) is not, however,
without limitations . . . more particularly [] the relevant limitations in the Bill of
Rights.” Camiel, 324 A.2d at 868. We further acknowledged that “Camiel has
raised real issues which may some day have to be decided by the courts[;]” however,
we concluded “that this case does not yet present a justiciable issue and therefore is
not ripe for a decision on the merits.” Id. at 865. Accordingly, we dismissed the
petition for review.
In so holding, we began with separation of powers, explaining as
follows:
We view this point to be of a very serious nature. If there is any
one principle of constitutional law which supports and protects
our form of government, including all of our constitutional
rights, it is the separation of powers among the three branches of
government. Every crack in this foundation weakens the entire
structure.
Camiel, 324 A.2d at 866. We distinguished a legislative subpoena from a subpoena
issued by a “commission, i.e., a separate entity,” which acts “under specific statutory
authority.” Id. By contrast, in Camiel:
We are asked here to interfere with the legislative process, and
we believe we must question whether we have the jurisdiction
and the power to interfere at this point in the proceedings.
Id. (emphasis added). The “point in the proceedings” considered in Camiel was the
service of the legislative subpoena. However, notwithstanding the service of a
“subpoena duces tecum upon Camiel, [] there has been no confrontation.” Id.
(emphasis added).
19
We reasoned that a citizen must be able to raise constitutional defenses
at the “point in the proceedings when his or her constitutional rights are affected[.]”
Id. at 870. However, “[c]ourts should not decide a citizen’s constitutional rights in
a vacuum.” Id. This is because
we do not know whether the Select Committee will force an issue,
for that is certainly within its discretion. Absent a confrontation
and a record made showing the factual posture of the matter, it is
our position that it is improper for this Court to dispose of all the
potential constitutional issues which might be raised[.]
Id. at 866 (emphasis added). In short, this Court will not decide issues raised by a
legislative subpoena that are capable of being resolved by negotiation and
compromise or change of heart.
In Trump v. Mazars USA, LLP, __ U.S. __, __, 140 S. Ct. 2019, 2030
(2020), the United States Supreme Court observed that historically “congressional
demands for the President’s information have been resolved by the political branches
without involving this Court.” These disputes are “hashed out in the ‘hurly-burly,
the give-and-take of the political process between the legislative and the executive.’”
Id. at __, 140 S. Ct. at 2029. (citation omitted). For example, when a House
subcommittee of the Congress subpoenaed documents from the Department of the
Interior, President Ronald Reagan directed these documents to be withheld because
they involved confidential presidential communications with subordinates. After the
subcommittee voted to hold the Secretary of the Interior in contempt, “an innovative
compromise soon followed.” Id. at __, 140 S. Ct. at 2030. It is this “tradition of
negotiation and compromise without the involvement of [the] court,” id., that largely
informed our Court’s decision in Camiel, 324 A.2d at 866.
In dismissing Camiel’s petition, our Court acknowledged the holding
in Annenberg, 2 A.2d at 618, noting that “a court sitting in equity may restrain public
20
officers to protect a citizen’s constitutional rights after service of a subpoena and
before a confrontation[.]” Camiel, 324 A.2d at 866 (emphasis added). However,
we found Annenberg distinguishable. First, Annenberg involved a subpoena issued
by a “commission, i.e., a separate entity,” not by the legislature. Camiel, 324 A.2d
at 866. Second, Annenberg raised a search and seizure of a citizen’s private financial
records, which was not raised in Camiel.
Federal case law also favors judicial restraint when faced with a
challenge to a Congressional subpoena before confrontation. In In re Motions to
Quash Subpoenas and Vacate Service, 146 F. Supp. 792 (W.D. Pa. 1956), a
subpoena duces tecum was issued to Bessie Steinberg and Allan McNeil to testify
about their activities to end sedition laws. They filed a motion to quash the
subpoenas, and the District Court denied relief, despite the contention that the
subpoenas violated their right of free speech and association.19 In denying the
requested relief, the District Court stated:
We would be naive indeed if we did not recognize the difference
of opinion regarding the subversive investigations of the last few
years. That Congress has the duty to consider remedial
legislation in order to best effectuate our defenses against
subversion is only to state the obvious. That Congress and the
courts should be ever vigilant to protect our individual rights is
no less clear.
***
Here the petitioners are asking for protection against some
danger as yet unknown. They claim a constitutional impairment
not now clear. They presume a limitation of their constitutional
privileges not yet threatened. For us to presume that the House
19
U.S. CONST. amend. I. It states that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the Government for a redress
of grievances.” Id.21
of Representatives, the body most susceptible to the will of the
people, will be less sensitive to the constitutional rights of the
citizen than will be this Court would authorize a presumption I
am not prepared to accept. This would not be exercising a
judicial prerogative or a judicial restraint, but would in truth be
judicial arrogance[.]
Id. at 795 (emphasis added). The District Court concluded that this request for relief
was premature.
We conclude that, as in Camiel, this matter is not ripe for this Court’s
review because there has been no confrontation. Likewise, the Annenberg
circumstances do not pertain because that case concerned a subpoena issued under
authority of statute and, thus, did not implicate “interference” with “legislative
process.” Camiel, 324 A.2d at 866.20 The Senate Committee has not taken any steps
to enforce its subpoena duces tecum under article II, section 11 of the Pennsylvania
Constitution or to hold the Acting Secretary in contempt. See Marra, 594 A.2d at
648. As the United States District Court aptly observed in In re Motions to Quash
Subpoenas and Vacate Service, 146 F. Supp. at 795, “the petitioners are asking for
protection against some danger as yet unknown.”
II.
Relying principally on Annenberg, 2 A.2d 612, the Acting Secretary
asserts that this Court should exercise its jurisdiction in equity to restrain the Senate
Committee’s subpoena duces tecum. Democratic Senators, the Haywoods, and
Voter Intervenors agree, noting also that they have no other vehicle for advancing
their informational privacy claims. The Senate Committee rejoins that the existence
20
The Annenberg subpoena was issued under authority of a statute by an entity created by statute,
and the Annenberg subpoena effected an “inquisition” into “the private affairs” of the subpoena’s
recipient. By contrast, the Senate Committee’s subpoena has nothing to do with the Acting
Secretary’s private affairs, and it was issued under authority of the Pennsylvania Constitution.
22
of a remedy at law precludes equity jurisdiction. Further, the “manner in which a
legislative body exercises its inherent power to vindicate its authority and processes
must satisfy the requirements of procedural due process.” Brandamore, 327 A.2d at
5. In short, the existence of a legislative process for the enforcement of the Senate
Committee’s enforcement of its subpoena precludes this Court’s exercise of equity
jurisdiction.21
There is a difference between subject matter jurisdiction and equity
jurisdiction, as this Court has explained:
Jurisdiction is the power of a court to enter into an inquiry on a
certain matter . . . . A careful distinction must be made between
subject matter jurisdiction, which we have just defined, and
equity jurisdiction, which describes the remedies available in
equity . . . .
Hence, if there is an adequate non-statutory remedy at
law, equity may withhold its remedies and the matter will be
transferred to the law side[.]
Lashe v. Northern York County School District, 417 A.2d 260, 262 (Pa. Cmwlth.
1980) (citations omitted) (emphasis added). Equity is discretionary with the court
and should be exercised only “where the facts clearly establish the plaintiff’s right
thereto; where no adequate remedy at law exists; and where the chancellor believes
that justice requires it.” Payne v. Clark, 187 A.2d 769, 771 (Pa. 1963) (emphasis
added). “In other words, such a decree is of grace and not of right.” Id. (emphasis
added).
21
On March 11, 2022, the Senate Committee filed a petition for review in the nature of a complaint
in mandamus, which, alternatively, sought this Court’s enforcement of the Senate Committee’s
subpoena. That petition was argued before us, seriately with the present matter, on September 12,
2022, and is addressed in a separate opinion and order at Pennsylvania Senate Intergovernmental
Operations Committee, __ A.3d at __, slip op. at 1-20.
23
In Brown v. Brancato, 184 A. 89, 91 (Pa. 1936), our Supreme Court
held that there was “no doubt of the jurisdiction in equity to entertain the bill”
brought by the directors of charitable trusts in the City of Philadelphia to challenge
a proposed investigation by a committee of the House of Representatives. The Court
explained that
plaintiffs aver that defendants propose, by subpoena duces tecum
to require production of the records, books, accounts, and other
documents of plaintiff directors, to the general disorganization
of their trust administration. Various prayers for restraint were
made. The order dismissing the bill, made by the learned court
below, cannot be sustained.
Id. (emphasis added). There were two reasons for the Supreme Court’s decision to
grant relief in equity to the directors of the Philadelphia charitable trusts.
First, the subject of the bill in equity was charitable trusts. The Supreme
Court explained that “[f]rom the earliest days chancery has exercised jurisdiction
over charitable trusts . . . . Chancery powers over trusts were exercised in this
[C]ommonwealth ‘as part of our own common law’ prior to the [Act of June 16,
1836,] P.L. 784[, repealed by the Act of April 28, 1978, P.L. 202].” Brown, 184 A.
at 91 (citations omitted). The directors of the Philadelphia charitable trusts had the
fiduciary responsibility to preserve trust property with a value of $93 million. The
records and accounts sought to be delivered to the House Committee would create
“general disorganization of their trust administration.” Id. The Supreme Court held
that the directors were “not to be molested” in the exercise of their fiduciary
responsibilities. Id. at 92.
Second, the House Committee’s power to act ended when the
legislature adjourned sine die on June 21, 1935. The legislative action that triggered
the bill in equity occurred after that date. The Supreme Court observed that it was
24
doubtful that the House Committee could act under a resolution that was never
submitted to the Senate. But even if it could, “after the adjournment, the power of
the House complained of in this suit was done once and for all.” Brown, 184 A. at
93. For that reason, the Supreme Court held that the House Committee was “without
lawful authority in the premises.” Id. at 92. The Supreme Court remitted the matter
to the trial court with instructions to issue the injunction.
The Acting Secretary argues that because the Senate Committee has
“the power to issue a warrant for the [Acting] Secretary’s arrest and detention in
Dauphin County prison,” this Court must exercise equity jurisdiction. Acting
Secretary Brief at 15-16. She argues that “a party need not wait to be subject to
contempt proceedings before seeking judicial review.” Id. at 15, 17. Further, the
Senate Committee has refused to narrow or withdraw its subpoena but, rather, has
noted its authority to enforce a subpoena “without recourse to the judiciary.” Id. at
12. Stated otherwise, the Acting Secretary believes that the Committee’s possible
enforcement of the subpoena warrants judicial intervention in equity and in advance
of confrontation. We are not persuaded.
The Pennsylvania Constitution vests the legislature with the power to
enforce its subpoenas. PA. CONST. art. II, §11. The mere existence of this
constitutional enforcement power does not warrant judicial intervention. Rather,
separation of powers requires that the “legislative process” be respected by the
judiciary. Camiel, 324 A.2d at 865.
Further, due process does not require that a “finding of contempt must
be made in a judicial forum.” Brandamore, 327 A.2d at 4. To the contrary,
[t]he power of the Houses of the General Assembly to vindicate
their authority and processes by punishing acts of contempt
committed in their presence is inherent in the legislative function.
25
Id. (emphasis added). In Brandamore, our Supreme Court concluded that the House
of Representatives had properly followed the procedures in Section 1 of the Act of
June 13, 1842, P.L. 491, 46 P.S. §61, in holding Carcaci in contempt. To be sure,
“the manner in which a legislative body exercises its inherent power to vindicate its
authority and processes must satisfy the requirements of procedural due process.”
Brandamore, 327 A.2d at 5. The Supreme Court concluded Carcaci received the
process he was due from the House of Representatives.
In short, in the event the Acting Secretary chooses not to produce the
voter registration information and in the event the Senate Committee chooses to
exercise its constitutional enforcement powers, the Acting Secretary will be able to
raise constitutional arguments in a proceeding that must provide due process.
Brandamore, 327 A.2d at 5. That proceeding could be brought under the
legislature’s constitutional enforcement powers, in accordance with the contempt
statutes. See 46 P.S. §61; 18 Pa. C.S. §5110.22
The dissent argues that there is an “interbranch conflict” presented in
this case that supports judicial intervention before confrontation. It believes that any
legislative subpoena issued to an executive branch agency should be reviewed by
the judiciary, using the principles announced in Mazars, __ U.S. __, 140 S. Ct. 2019.
Mazars involved four House subpoenas seeking personal financial
information from President Donald J. Trump and his children and affiliated
businesses, including his accounting firm, Mazars USA, LLP. The United States
Supreme Court concluded that this intrusion into the “personal affairs” of a sitting
22
“A person is guilty of a misdemeanor of the third degree if he is disorderly or contemptuous in
the presence of either branch of the General Assembly, or if he neglects or refuses to appear in the
presence of either of such branches after having been duly served with a subpoena to so appear.”
18 Pa. C.S. §5110.
26
President required limits. Cf. Annenberg, 2 A.2d 612; Lunderstadt, 519 A.2d 408.
Under these limits, courts must do a careful assessment of (1) whether the
subpoena’s “legislative purpose warrants the significant step of involving the
President and his papers;” (2) whether the subpoena is “no broader than necessary
to support Congress’ legislative objective;” (3) whether the subpoena for the
President’s information clearly “advances a valid legislative purpose;” and (4) the
extent of “the burdens imposed on the President by a subpoena.” Mazars, __ U.S.
at __, 140 S. Ct. at 2035-36. Mazars is inapposite.
First, “the Mazars test was created with a sitting President in mind.”
Committee on Ways and Means, 45 F.4th at 335 (applying Mazars test to a request
of committee chairman for tax returns of President Donald J. Trump submitted under
authority of a Federal statute and authorizing the release of the tax returns to
Congress). Mazars addressed the potential for an “unnecessary intrusion into the
operation of the Office of the President,” Mazars, __ U.S. at __, 140 S. Ct. at 2036,
caused by subpoenas seeking over a decade of personal financial information from
a period of time that predated his presidency. It was the burden of production that
created the “interbranch conflict,” which was particular to the President, who “is the
only person who alone composes a branch of government.” Id. at __, 140 S. Ct. at
2034 (emphasis added).
Second, Mazars acknowledged, throughout, that the courts “have a duty
of care that we not needlessly disturb the compromises and working arrangements”
of the two political branches. Id. at __, 140 S. Ct. at 2031. The principle of
separation of powers requires the courts to show the “respect due the coordinate
branches of government.” Baker v. Carr, 369 U.S. 186, 217 (1962). It was this
27
same concern that led our Court in Camiel to conclude that it should not become
involved prematurely in the enforcement of a legislative subpoena.
Third, Mazars’ four-part test does not fit the Senate Committee’s
subpoena. This subpoena does not seek personal financial information from the
President (or even the Governor), let alone present a request so broad in scope that
mere compliance interferes with “the operation of the Office of the President.”
Mazars, __ U.S. at __, 140 S. Ct. at 2036.23 Only where such considerations pertain
does Mazars require Congress to explain “why the President’s information will
advance its consideration of possible legislation.” Id.Here, unlike Mazars, we address a legislative subpoena issued to a state
agency for government records, not a request of Pennsylvania’s chief executive for
his personal papers. Rather than apply Mazars’ holding to the particular
circumstance for which it was devised, the dissent would require judicial review and
approval of every legislative subpoena issued to a state agency before the legislature
can expect compliance with its subpoena. This turns separation of powers on its
head by making the legislative process subordinate to the judiciary. This is contrary
to “the respect due a coordinate branch of government.” Baker, 369 U.S. at 217.
23
Ironically, Annenberg, 2 A.2d 612, and Lunderstadt, 519 A.2d 408, are more protective of
personal financial information than is Mazars, and they protect any citizen, not just the President
or Governor. The dissent in Mazars would limit Congressional subpoenas for personal financial
information to its impeachment powers and not allow such inquiries for the purpose of preparing
and proposing legislation. “I would hold that Congress has no power to issue a legislative
subpoena for private, nonofficial documents – whether they belong to the President or not.”
Mazars, __ U.S. at __, 140 S. Ct. at 2047 (Thomas, J., dissenting).
28
Each branch, including the judiciary, must take care not “to exceed the outer limits
of its power.” I.N.S. v. Chudha, 462 U.S. 919, 951 (1983).24
In Pennsylvania jurisprudence, the circumstances that have authorized
judicial intervention in a legislative subpoena have been exceptional and rare. It
must be apparent from the face of the subpoena, or the authorizing legislative
resolution, that there is not “even a hint that the investigation” has a legislative
purpose. Lunderstadt, 519 A.2d at 416 (Hutchinson, J., concurring). Judicial
intervention may be appropriate where the legislative committee lacks any power to
act because the legislature had adjourned before the committee acted. Brown, 184
A. at 92. Equity can be invoked to restrain legislative subpoenas that show “on their
24
The dissent cites the Montana Supreme Court’s decision in McLaughlin v. Montana State
Legislature, 493 P.3d 980 (Mont. 2021), for its summation of federal law on the role of the
judiciary and interpretation of Mazars. Out-of-state decisions may be cited, at most, for their
persuasive authority. Shedden v. Anadarko E&P Company, L.P., 88 A.3d 228, 233 n.3 (Pa. Super.
2014). However, McLaughlin is inapposite.
In McLaughlin, the Montana Supreme Court quashed legislative subpoenas demanding
four months of all emails between the Court Administrator for the Montana Judicial Branch and
state judges and justices, as well as the production of state-owned computers and telephones used
to communicate with justices on legislation or other matters that could come before Montana
courts for a decision. The Montana Supreme Court held that an in camera review was needed to
“balance competing privacy and security interests” in advance of production. McLaughlin, 493
P.3d at 983. The concurring opinion observed that “separation of powers does not tolerate the
control, interference or intimidation of one branch of government by another.” Id. at 997
(McKinnon, J., concurring). The concurrence argued that the subpoena was issued to investigate
“purported judicial misconduct” and “expose violation by judges, if not the entire judicial branch
of ethical codes, state law and state policy . . . .” Id. at 1002. As such, the legislature’s investigation
was “incongruous to Montana’s Constitution and the constitutionally created method for
addressing the discipline and removal of judges for misconduct.” Id.
By contrast, here, no party asserts that an inference of intimidation can be drawn from the
Senate Committee’s subpoena. Further, to make Pennsylvania’s legislative process subordinate to
the judiciary is incongruous with separation of powers under our Constitution, as construed by our
Supreme Court in Brandamore, 327 A.2d 1. See also Camiel, 324 A.2d at 866.
29
face that they contemplate an unreasonable search and seizure” in violation of the
Fourth Amendment. Annenberg, 2 A.2d at 618. Unlike informational privacy,
which can be waived by the government where that privacy interest is outweighed
by the public interest in disclosure, PSEA, 148 A.3d at 158, the government can
never waive a citizen’s immunity against an unlawful search and seizure. Only the
citizen has that power. This is not a Fourth Amendment case, and neither Petitioners
nor Voter Intervenors so claim.
This Court cannot assume that the Senate Committee will not be
mindful of the informational privacy interests of registered voters:
For us to presume that the House of Representatives, the body
most susceptible to the will of the people, will be less sensitive to
the constitutional rights of the citizen than will be this Court
would authorize a presumption I am not prepared to accept. This
would not be exercising a judicial prerogative or a judicial
restraint, but would in truth be judicial arrogance[.]
In re Motions to Quash Subpoenas and Vacate Service, 146 F. Supp. at 795(emphasis added). The same may be said here.25 To assume that the Pennsylvania
Senate, a body more susceptible to the will of the people than our appellate courts,
will have less sensitivity to the informational privacy interests of registered voters
“would in truth be judicial arrogance.” Id.The subpoena issued by the Senate Committee does not inquire into the
Acting Secretary’s private and personal affairs or in any way compromise her Fourth
Amendment right. The subpoena does not interfere with the Acting Secretary’s
duties, as agency head, with respect to the Department’s administration of the SURE
system because the Senate Committee seeks copies, not original documents. In
25
Notably, the Senate Committee’s subpoena directed delivery of the documents to counsel, not
to the entire Committee. This measure demonstrates “sensitivity” to the information privacy rights
of voter information in the SURE system.
30
Brown, 184 A. at 91, by contrast, the House Committee sought the original
accounting ledgers and records from the directors of the charitable trusts thereby
creating “general disorganization of their trust administration.” Finally, the Acting
Secretary does not contend that the Senate Committee issued its subpoena after the
legislature had adjourned sine die, i.e., that it lacked “lawful authority in the
premises.” Id. at 92.
Democratic Senators, the Haywoods, and Voter Intervenors assert that
they lack a remedy to challenge the legislative subpoena.26 However, the private
parties may request intervention in whatever enforcement proceeding is undertaken
by the Senate Committee, should the matter not be “hashed out in the hurly-burly,
the give-and-take of the political process between the legislative and the executive.”
Mazars, __ U.S. at __, 140 S.Ct. at 2029. Democratic Senators will participate in
that “hurly-burly” process and in the enforcement proceeding should one ever take
place.
More to the point, it is the SURE system that has created the risk of
exposure of the voter registration information that they seek to protect. 25 Pa. C.S.
§1222(c)(5) (permitting “each commission and the department to have instant access
to a commission’s registration records maintained in the system”). Further,
“[r]ecords of a registration commission” may “be inspected during ordinary business
hours[.]” 25 Pa. C.S. §1207(a)(1)-(b). Likewise, county election commissions shall
prepare street lists for “all registered electors” in each election district for both
26
The dissent cites Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143 (Pa. 2017), in
support of its opinion. Reese is inapposite. Reese involved a private party’s record request under
authority of statute, i.e., the Right-to-Know Law. This matter concerns the legislature’s request
for records under authority of our Constitution. Notably, public disclosure of records that
implicate informational privacy will be allowed “where the public interest favor[s] disclosure.”
PSEA, 148 A.3d at 158.
31
political bodies and candidates. 25 Pa. C.S. §1403(a)-(c). It is the SURE system
that exposes Democratic Senators, the Haywoods, and Voter Intervenors to
disclosure of their voter registration information.27 The SURE system can be
accessed by any number of county and state employees, as well as the third-party
private consultants engaged by the Department of State and by county commissions
that from time to time use that database of voter information.28 Equity is the vehicle
for challenging the constitutionality of a statute that does not sufficiently protect
informational privacy. See, e.g., Lynch v. Owen J. Roberts School District, 244 A.2d
1, 3 (Pa. 1968); Annenberg, 2 A.2d 617 (challenging constitutionality of Act 27 that
created the commission to study gambling). However, Democratic Senators, the
Haywoods, and Voter Intervenors do not challenge the constitutionality of any
disclosure provision in the Election Code.
The Acting Secretary has been served in her official capacity as
custodian of government records within the Department of State, which is a creature
of the legislature. See Section 801 of The Administrative Code of 1929, Act of April
9, 1929, P.L. 177, as amended, 71 P.S. § 271. The Department has been established
to serve as a repository of documents, from corporate charters to professional
licenses as well as election-related materials, which are the subject of the subpoena.
See also Section 802 of The Administrative Code of 1929, 71 P.S. §272 (establishing
duty in Department of State to furnish records that a legislative committee may
27
Both Democratic Senators and Voter Intervenors had the very same opportunity to make these
arguments and participated in argument before the Court in the Committee’s enforcement attempt,
as addressed in Pennsylvania Senate Intergovernmental Operations Committee, __ A.3d at __, slip
op. at 5.
28
Likewise, the Pennsylvania Department of Transportation, the Social Security Administration,
and the Internal Revenue Service hold this personal information of registered voters, which is
accessed by employees and agents of those government agencies.
32
request from time to time).29 A legislative subpoena for government records is not
measured by Annenberg or Lunderstadt, which address requests for private financial
documents.
The Senate Committee cannot set up itself as a court of law to set aside
certified election results.30 Commonwealth v. Costello, 21 Pa. D. 232, 237 (1912).
Nor can the Senate Committee set up itself as a grand jury or prosecutor. Annenberg,
2 A.2d at 617. However, it cannot be inferred from the face of the Committee’s
subpoena for election-related records that its investigation lacks even a “hint” of a
legislative purpose but only a law enforcement purpose. Lunderstadt, 519 A.2d at
416 (Hutchinson, J., concurring). Indeed, the Committee’s subpoena “must be
presumed to have had a legitimate object, if it is capable of being so construed, and
the court has no right to assume that the contrary was intended[.]” Costello, 21 Pa.
D. at 234-35. Finally, the Senate Committee did not issue the subpoena after the
29
Section 802 of The Administrative Code of 1929 provides, in pertinent part, as follows:
The Department of State shall have the power and its duty shall be:
(a) To permit any committee of either branch of the General Assembly to inspect
and examine the books, papers, records, and accounts, filed in the department, and
to furnish such copies or abstracts therefrom, as may from time to time be required;
(b) To furnish to any person, upon request and the payment of such charges as may
be required and fixed by law, certificates of matters of public record in the
department, or certified copies of public papers or documents on file therein.
71 P.S. §272 (emphasis added).
30
Relying on statements of individual Senators, Petitioners and Voter Intervenors assert that the
true motive of the Senate Committee is a “concerted effort to cast doubt on the results of the 2020
presidential election[.]” Acting Secretary’s Petition for Review, ¶140. However, “the Judiciary
lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
Barenblatt, 360 U.S. at 132 (cited with approval in Brandamore, 327 A.2d at 4). See also United
States v. O’Brien, 391 U.S. 367, 383 (1968) (inquiries into legislative motives “are a hazardous
matter”).
33
legislature’s adjournment, at a time when it was “without lawful authority in the
premises.” Brown, 184 A. at 92.
The exceptional circumstances that warrant the exercise of equity
jurisdiction to restrain a legislative subpoena before confrontation are not present in
this case. When, and if, the Senate Committee chooses to enforce the subpoena
duces tecum, the Acting Secretary can be heard and her concerns addressed in a
proceeding that must conform to due process. Brandamore, 327 A.2d at 5. If the
Senate Committee’s enforcement proceeding does not provide the Acting Secretary
due process, that is the “point in the proceeding” at which to involve the judiciary.
Camiel, 324 A.2d at 866.
Conclusion
We are asked to interfere with legislative process. As this Court has
explained,
[i]f there is any one principle of constitutional law which
supports and protects our form of government, including all of
our constitutional rights, it is separation of powers among the
three branches of government. Every crack in this foundation
weakens the entire structure.
34
Camiel, 324 A.2d at 866. When it comes to the legislature’s enforcement of its
process, our Supreme Court has directed that “[a] proper respect for the limits of the
judicial function and the doctrine of separation of powers dictates that we leave
matters to the legislature.” Brandamore, 327 A.2d at 4. Consistent with Camiel and
in respect of the separation of powers, we decline to exercise this Court’s equity
jurisdiction to restrain enforcement of the Senate Committee’s subpoena in advance
of confrontation. Judicial intervention at this juncture may only “needlessly disturb
the compromises and working arrangements” of the political branches. Mazars, __
U.S. at __, 140 S.Ct. at 2031. Accordingly, the consolidated petitions for review
challenging the subpoena duces tecum issued by the Senate Committee, and seeking
declaratory and injunctive relief, are dismissed.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge McCullough, Judge Covey, Judge Fizzano Cannon and Judge Wallace did not
participate in the decision in this case.
35
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Senator : CASES CONSOLIDATED
Anthony H. Williams, Senator :
Vincent J. Hughes, Senator Steven J. :
Santarsiero and Senate Democratic :
Caucus, :
Petitioners :
:
v. : No. 310 M.D. 2021
:
Senator Kim Ward and Senator :
Jarrett Coleman, :
Respondents :
Commonwealth of Pennsylvania, :
Pennsylvania Department of State, :
and Leigh M. Chapman, Acting :
Secretary of the Commonwealth :
of Pennsylvania, :
Petitioners :
:
v. : No. 322 M.D. 2021
:
Senator Jarrett Coleman, Senator :
Kim Ward and The Pennsylvania :
State Senate Intergovernmental :
Operations Committee, :
Respondents :
Arthur Haywood :
Julie Haywood, :
Petitioners :
:
v. : No. 323 M.D. 2021
:
Leigh M. Chapman :
Acting Secretary of State :
Commonwealth of Pennsylvania, :
Respondent :
ORDER
AND NOW, this 9th day of February, 2023, the petitions for review
filed in the above-captioned consolidated matters are DISMISSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Senator :
Anthony H. Williams, Senator :
Vincent J. Hughes, Senator :
Steven J. Santarsiero and Senate :
Democratic Caucus, :
Petitioners :
:
v. : No. 310 M.D. 2021
:
Senator Kim Ward and Senator :
Jarrett Coleman, :
Respondents :
Commonwealth of Pennsylvania, :
Pennsylvania Department of State, :
and Leigh M. Chapman, Acting :
Secretary of the Commonwealth :
of Pennsylvania, :
Petitioners :
:
v. : No. 322 M.D. 2021
:
Senator Jarrett Coleman, Senator Kim :
Ward and The Pennsylvania State :
Senate Intergovernmental Operations :
Committee, :
Respondents :
Arthur Haywood :
Julie Haywood, :
Petitioners :
:
v. : No. 323 M.D. 2021
: Argued: September 12, 2022
Leigh M. Chapman :
Acting Secretary of State :
Commonwealth of Pennsylvania, :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
DISSENTING OPINION
BY JUDGE WOJCIK FILED: February 9, 2023
I dissent.
As noted by the Majority, subsequent to our denial of the parties’
applications for summary relief in the above-captioned cases, we directed them to
address three questions for disposition herein: (1) whether the petitions for review
(PFRs) are ripe for review; (2) whether the availability of an adequate remedy at law
precludes this Court’s exercise of equity jurisdiction1 over a challenge to the
1
In the PFRs filed in these matters, the parties invoke our authority under the Declaratory
Judgments Act (DJA), 42 Pa. C.S. §§7531-7541. As this Court has explained:
Petitions for declaratory judgments are governed by the
provisions of the [DJA]. Although the [DJA] is to be liberally
construed, one limitation on a court’s ability to issue a declaratory
judgment is that the issues involved must be ripe for judicial
determination, meaning that there must be the presence of an actual
case or controversy. Thus, the [DJA] requires a petition praying for
declaratory relief to state an actual controversy between the
petitioner and the named respondent.
Declaratory judgments are not obtainable as a matter of
right. Rather, whether a court should exercise jurisdiction over a
declaratory judgment proceeding is a matter of sound judicial
discretion. Thus, the granting of a petition for a declaratory
judgment is a matter lying within the sound discretion of a court of
original jurisdiction. As the Pennsylvania Supreme Court has
stated:
The presence of antagonistic claims indicating
imminent and inevitable litigation coupled with a
(Footnote continued on next page…)
MHW-2
legislative subpoena; and (3) whether the General Assembly’s enforcement power
or the criminal contempt statute preclude this Court’s exercise of equity jurisdiction.
See Court Order, 1/25/2022. I firmly believe that the Majority has incorrectly
answered each of the foregoing questions, and the Majority’s attempt to distinguish
precedent establishing a contrary conclusion is unavailing.
clear manifestation that the declaration sought will
be of practical help in ending the controversy are
essential to the granting of relief by way of
declaratory judgment. . . .
Only where there is a real controversy may a
party obtain a declaratory judgment.
A declaratory judgment must not be
employed to determine rights in anticipation of
events which may never occur or for consideration of
moot cases or as a medium for the rendition of an
advisory opinion which may prove to be purely
academic.
Brouillette v. Wolf, 213 A.3d 341, 357-58 (Pa. Cmwlth. 2019) (citations omitted). In addition, “an
action seeking declaratory judgment is not an optional substitute for established or available
remedies and should not be granted where a more appropriate remedy is available.” Pittsburgh
Palisades Park, LLC v. Pennsylvania State Horse Racing Commission, 844 A.2d 62, 67 (Pa.
Cmwlth. 2004) (citation omitted). Nevertheless, as outlined below, this Court’s consideration of
the merits of the instant PFRs in our original jurisdiction is the most appropriate remedy for
consideration of the claims raised herein. See, e.g., Commonwealth ex rel. Carcaci v. Brandamore,
327 A.2d 1, 5 n.4 (Pa. 1974) (“Had [the state trooper] wished to challenge the constitutionality of
the committee’s investigation without risking a contempt citation before the bar of the House,
judicial recourse would have been available to him. Injunctive relief from the activities of the
committee could have been sought in a court of equity. See McGinley v. Scott, [164 A.2d 424 (Pa.
1960)]; Annenberg v. Roberts, [2 A.2d 612 (Pa. 1938)].”); see also Camiel v. Select Committee on
State Contract Practices of House of Representatives, 324 A.2d 862, 866 (Pa. Cmwlth. 1974) (“As
was held in [Annenberg], a court sitting in equity may restrain public officers to protect a citizen’s
constitutional rights after service of a subpoena and before a confrontation; but the action before
us is not in equity.”).
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Although not cited by the Majority, the United States Supreme Court
has squarely addressed the role of the judiciary where, as here, there is a challenge
to an interbranch legislative subpoena that is directed to another separate and coequal
branch of government. In McLaughlin v. Montana State Legislature, 493 P.3d 980,
985-86 (Mont. 2021), the Montana Supreme Court2 recently summarized the
relevant United States Supreme Court precedent as follows:
The legislative branch is not a law enforcement
agency; its inquiry “must be related to, and in furtherance
of, a legitimate task of the [Legislature].” Watkins [v.
United States, 354 U.S. 178, 187 (1957)]. To serve a
“valid legislative purpose,” the subpoena “must ‘concern[]
a subject on which legislation “could be had.”’ [Trump v.]
Mazars [USA, LLP, 140 S. Ct. 2019, 2031 (2020)]
(quoting Eastland v. [United States] Servicemen’s Fund,
421 U.S. 491, 506 [(1975)]). “The investigatory power of
a legislative body is limited to obtaining information on
matters that fall within its proper field of legislative
action.” [P. Mason, Manual of Legislative Procedure],
§797.7 at 567 [(2020)]. “Investigations conducted solely
for the personal aggrandizement of the investigators or to
‘punish’ those investigated are indefensible.” Watkins,
2
In McLaughlin, the Court Administrator for the Montana Judicial Branch initiated an
original proceeding in the Montana Supreme Court seeking to quash and permanently enjoin a
series of interbranch legislative subpoenas issued by the Montana Legislature to obtain a number
of items including the Court Administrator’s and another judicial branch employee’s emails, and
a poll of the members of a judicial organization that the Court Administrator had facilitated relating
to a bill that was then pending before the Legislature. See McLaughlin, 493 P.3d at 983-84.
Relevant to our discussion herein is the court’s summary of United States Supreme Court
precedent controlling a court’s consideration in an original action seeking to quash an interbranch
legislative subpoena, as outlined above. See, e.g., Commonwealth v. Stilp, 905 A.2d 918, 940-44
(Pa. 2006) (citing relevant United States Supreme Court and Illinois Supreme Court precedent
while considering the separation of powers doctrine with respect to the constitutional protection
against diminishing judicial compensation); see also Delaware Valley Landscape Stone, Inc. v.
RRQ, LLC, 284 A.3d 459, 463 n.5 (Pa. Super. 2022) (“This Court may rely on the decisions of
other states for persuasive authority. See Hill v. Slippery Rock Univ[ersity], 138 A.3d 673, 679
n.3 (Pa. Super. 2016) (noting that ‘the decisions of other states are not binding authority for this
Court, although they may be persuasive’ (citation omitted))”).
MHW-4
354 U.S. at 178[.] And “‘there is no congressional power
to expose for the sake of exposure.’” Mazars, 140 S. Ct.
at 2032 (quoting Watkins, 354 U.S. at 200[]).
In Mazars, the Court examined Congressional
subpoenas seeking the President’s information under the
lens of separation of powers, announcing a non-exhaustive
series of safeguards—in contrast to the generally
applicable presumption stated in McGrain [v. Daugherty,
273 U.S. 135 (1927)]—when the legislative subpoena
authority is directed at another branch of government.
“First, courts should carefully assess whether the asserted
legislative purpose warrants the significant step” of
issuing the subpoena, because “occasion[s] for
constitutional confrontation between the two branches
should be avoided whenever possible.” Mazars, 140 S. Ct.
at 2035 (citation, internal quotations omitted). In this
regard, the legislative body may not compel information
from a coequal branch of government “if other sources
could reasonably provide” the information necessary for
“its particular legislative objective.” Mazars, 140 S. Ct. at
2035-36.
Second, “to narrow the scope of possible conflict
between the branches,” the subpoena must be “no broader
than reasonably necessary to support [the] legislative
objective.” Mazars, 140 S. Ct. at 2036.
Third, courts must examine the asserted legislative
purpose and the “nature of the evidence offered by
Congress to establish that a subpoena advances a valid
legislative purpose.” Mazars, 140 S. Ct. at 2036. The
legislative body must “adequately identif[y] its aims and
explai[n] why the [requested] information will advance its
consideration of the possible legislation.” Mazars, 140
S. Ct. at 2036. “[D]etailed and substantial . . . evidence of
. . . legislative purpose” is “particularly” important when
the legislative body “contemplates legislation that raises
sensitive constitutional issues, such as legislation
concerning the Presidency” or—in this case—the
Judiciary. Mazars, 140 S. Ct. at 2036.
MHW-5
Finally, in the context of considering the burden an
interbranch subpoena imposes, courts must “carefully
scrutinize[]” such subpoenas, “for they stem from a rival
political branch” with “incentives to use subpoenas for
institutional advantage.” Mazars, 140 S. Ct. at 2036.[3]
The Majority’s attempt to limit the application of a Mazars analysis to
a legislative subpoena directed to obtain the personal papers of an executive branch
official is simply incorrect. As indicated, in McLaughlin, the legislative subpoena
was directed to judicial branch officials to obtain records maintained by that separate
and coequal branch in the furtherance of its governmental function. Likewise, the
records sought herein relate to the private information of the more than 9,000,000
registered electors of this Commonwealth that are maintained by the Acting
Secretary of State as part of her governmental function.
The Majority’s reliance on Camiel v. Select Committee on State
Contract Practices of House of Representatives, 324 A.2d 862 (Pa. Cmwlth. 1974),
is simply misplaced because that case did not involve an interbranch legislative
3
In McLaughlin, after conducting the foregoing analysis, the court ultimately held:
Acknowledging the Legislature’s authority to obtain
information in the exercise of its legislative functions under the
Montana Constitution, we conclude that the subpoenas in question
are impermissibly overbroad and exceed the scope of legislative
authority because they seek information not related to a valid
legislative purpose, information that is confidential by law, and
information in which third parties have a constitutionally protected
individual privacy interest. We hold further that, if the Legislature
subpoenas records from a state officer like the Court Administrator
auxiliary to its legislative function, whether those records be in
electronic or other form, a Montana court—not the Legislature—
must conduct any needed in camera review and balance competing
privacy and security interests to determine whether records should
be redacted prior to disclosure.
McLaughlin, 493 P.3d at 983.
MHW-6
subpoena such as the one at issue in the above-captioned matters.4 Moreover,
Camiel does not support judicial abdication as the Majority suggests because, unlike
this case, Camiel was not an action seeking equitable relief. See Camiel, 324 A.2d
at 866 (“As was held in Annenberg v. Roberts, [2 A.2d 612 (Pa. 1938)], a court
sitting in equity may restrain public officers to protect a citizen’s constitutional rights
after service of a subpoena and before a confrontation; but the action before us is not
in equity.”). Thus, regardless of the standard to be applied herein, i.e., either a
Mazars analysis or the “materiality” analysis set forth in Lunderstadt v.
Pennsylvania House of Representatives Select Committee, 519 A.2d 408 (Pa. 1986),5
judicial intervention is appropriate at this point and we need not wait until a further
“confrontation” occurs.
Furthermore, where, as here, an interbranch legislative subpoena seeks
the Acting Secretary of State’s records containing constitutionally protected private
and confidential information, the legislative necessity for the records’ release must
be weighed against the constitutional right to informational privacy. Indeed, as the
Pennsylvania Supreme Court has observed:
4
Equally troubling is the Majority’s citation to the single-judge order in Applewhite v.
Commonwealth (Pa. Cmwlth., No. 330 M.D. 2012, order filed April 29, 2013), to support the
disclosure of this constitutionally protected private and confidential information that predates the
Pennsylvania Supreme Court’s opinion in Pennsylvania State Education Association v.
Department of Community and Economic Development, 148 A.3d 142 (Pa. 2016).
5
See Lunderstadt, 519 A.2d at 414 (“[W]e believe that the views of Mr. Justice Holmes
[in Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 305-07 (1924),] are
persuasive insofar as they reflect a need to protect individuals from ‘fishing expeditions,’ and,
likewise, to the extent that a requirement as to the ‘materiality’ of subpoenaed records should be
imposed. Such protections for privacy interests can, however, be afforded under the Pennsylvania
Constitution.”); see also Annenberg, 2 A.2d at 617-18 (“[I]t is uniformly held that a legislative
body is not invested with any general power to inquire into private affairs and to compel
disclosures but only with such limited right of inquiry as is pertinent to the obtaining of information
upon which proposed legislation is to be based.”).
MHW-7
In [Pennsylvania State Education Association v.
Department of Community and Economic Development,
148 A.3d 142 (Pa. 2016) (PSEA)], this Court examined
Pennsylvania’s constitutional protections for
informational privacy and the scope of the “personal
security” exception in [S]ection [] 708 of the [Right-to-
Know Law (RTKL).6] Reviewing numerous prior
decisions of both this Court and our intermediate appellate
courts, we reaffirmed that the citizens of this
Commonwealth, pursuant to [a]rticle I, [s]ection 1 of the
Pennsylvania Constitution,[7] have a right to informational
privacy, namely the right of an individual to control access
to, and dissemination of, personal information about
himself or herself. PSEA, 148 A.3d at 150. Accordingly,
we ruled that before the government may release
personal information, it must first conduct a balancing
test to determine whether the right of informational
privacy outweighs the public’s interest in dissemination.
Id. at 144. In so ruling, we were clear that while this
balancing test has typically been located in the “personal
security” exemption of the [predecessor to the RTKL, (and
later in the RTKL)], it is not a statutory, but rather a
constitutional requirement, and it is required even in the
absence of any statutory requirement. Id. at 156. As
such, the PSEA balancing test is applicable to all
government disclosures of personal information,
including those not mandated by the RTKL or another
statute.
Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017)
(emphasis added). Thus, any purported statutory requirement that the Acting
6
Act of February 14, 2008, P.L. 6, 65 P.S. §67.708.
7
Pa. Const. art. I, §1. Article I, section 1 states:
All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing and
protecting property and reputation, and of pursuing their own
happiness.
MHW-8
Secretary must release all of the requested records pursuant to Section 1 of the Act
of March 12, 1791,8 or Section 802(a) of The Administrative Code of 19299 must be
balanced against the constitutional privacy rights that the over 9,000,000 electors
have in their personal information contained in the Acting Secretary’s records. Id.10
In light of the foregoing, and contrary to the Majority’s conclusions, I
am convinced that (1) the PFRs are ripe for review because the interbranch conflict
between the executive and legislative branches of our Commonwealth government
precipitated by the Senate Committee’s subpoena remains extant; (2) the availability
of an adequate remedy at law via participation or intervention in an enforcement
proceeding does not preclude this Court’s exercise of equity jurisdiction over a
challenge to the legislative subpoena; and (3) the General Assembly’s enforcement
8
Act of March 12, 1791, 3 Sm.L. 8, 71 P.S. §801. Section 1 states, in relevant part, that
“[t]he books, papers and accounts of the [S]ecretary [of the Commonwealth] shall be open to the
inspection and examination of committees of each branch of the legislature, and [the S]ecretary
shall furnish such copies, or abstracts, therefrom, as may from time to time be required.”
9
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §272(a). Section 802(a) states, in
pertinent part, that “[t]he Department of State shall . . . permit any committee of either branch of
the General Assembly to inspect and examine the books, papers, records, and accounts, filed in
the [Department of State], and to furnish such copies or abstracts therefrom, as may from time to
time be required[.]”
10
Both the Pennsylvania Supreme Court and the Pennsylvania General Assembly have
recognized that some of the information requested by the interbranch legislative subpoena
constitutes the protected, private, personal information of the Commonwealth’s registered electors.
See, e.g., Pa. R.J.A. 509(b)(2) (“All financial records are accessible to the public except . . . any
part of a record setting forth a person’s social security number, home address, home telephone
number, date of birth, operator’s license number, e-mail address, or other personal
information[.]”); Section 708(b)(6)(i)(A) of the RTKL, 65 P.S. §67.708(b)(6)(i)(A) (“Except as
provided in subsections (c) and (d), the following are exempt from access by a requester under this
act: . . . The following personal identification information: . . . A record containing all or part of a
person’s Social Security number, driver’s license number, personal financial information, home,
cellular or personal telephone numbers, personal e-mail addresses, employee number or other
confidential personal identification number.”).
MHW-9
power or the criminal contempt statute does not preclude this Court’s exercise of
equity jurisdiction. In sum, contrary to the Majority, I would not abdicate this
Court’s constitutional and statutory responsibility11 to review the merits of the
constitutional and statutory claims raised in the instant PFRs as a separate
independent and coequal branch of this Commonwealth’s government.
Finally, and quite importantly, I firmly believe that the instant matter
should be considered, and disposed of, by an en banc panel of the commissioned
judges of this Court. As it has been explained:
11
Indeed, as the McLaughlin Court explained:
The Supreme Court’s decisions on Congressional subpoenas make
clear that the courts have a role regardless of the office or the
government stature of the subject to whom the subpoena pertains.
[See, e.]g., Mazars, 140 S. Ct. at 2035 (“[S]eparation of powers
concerns are no less palpable here simply because the subpoenas
were issued to third parties. Congressional demands for the
President’s information present an interbranch conflict no matter
where the information is held.”). The Mazars Court harkened the
two-century tradition of the political branches “resolv[ing]
information disputes using the wide variety of means that the
Constitution puts at their disposal.” Mazars, 140 S. Ct. at 2035. But
it did so in preface to its prescription of the “balanced approach” the
courts must take when the branches reach impasse, accounting for
“both the significant legislative interests of Congress and the
‘unique position’ of [in that case] the President.” Mazars, 140 S. Ct.
at 2035. The “practice of the government” to avoid such
interbranch confrontation informs the courts’ consideration of the
controversy but does not abrogate their obligation to decide it.
Although the Mazars Court examined Congressional subpoenas to
the Executive, its articulated “balanced approach” extends logically
to subpoenas to the judicial branch, which raise similar “interbranch
confrontation” concerns.
McLaughlin, 493 P.3d at 987-88 (emphasis added).
MHW-10
Cases assigned to an en banc court for argument and
decision will generally involve:
1. Substantial questions of federal or state
constitutional law;
2. Substantial questions of state-wide importance;
3. Substantial questions of first impression involving
statutory or regulatory interpretation; and
4. The possibility of overruling Commonwealth Court
precedent.
G. Darlington, K. McKeon, D. Schuckers, K. Brown, & P. Cawley, Pennsylvania
Appellate Practice §3103:6 (West 2022-2023 ed.) (footnotes omitted); see also
Pa. R.A.P. 2543 (“Reargument before an appellate court is not a matter of right, but
of sound judicial discretion, and reargument will be allowed only when there are
compelling reasons therefor.”); Gajkowski v. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, 548 A.2d 533, 535
(Pa. 1988) (“In Dozer Agency, Inc. v. Rosenberg, [246 A.2d 330, 331 (Pa. 1968)],
the Court filed an opinion on March 22, 1966, and remanded for a re-evaluation of
damages. A petition for reargument was timely filed and denied. ‘Sometime
thereafter, this Court, sua sponte determined that reargument should be held limited
to the question of the adequacy of the damages awarded by the court below and such
reargument was held.’”); Charles v. Giant Eagle Markets, 510 A.2d 350 (Pa. 1986)
(“[T]he Court, sua sponte, orders that the above matter be reargued during the
September 1986 Session in Pittsburgh.”); Farnell v. Winterloch Corporation, 527
A.2d 204, 205 (Pa. Cmwlth. 1987) (“Argument on this case was held before a panel
. . . in December of 1985. We sua sponte ordered reargument before the court en
banc which was held in December of 1986. The matter is now ready for our
disposition.”); Alliston v. City of Allentown, 455 A.2d 239, 240 n.2 (Pa. Cmwlth.
MHW-11
1983) (“This case was originally argued before a panel but was set down for
reargument before the court en banc in September 1982 because of the important
issue presented in this appeal.”); Bern Township Authority v. Hartman, 451 A.2d
567, 568 (Pa. Cmwlth. 1982) (“This case has been reargued before the court en banc
because it poses these two important questions . . . .”). Because the disposition of
these cases involves substantial fundamental constitutional and statutory questions,
they should be resolved by an en banc panel of the commissioned judges of this
Court.
Accordingly, as outlined above, the above-captioned matters should be
reargued before, and disposed of by, an en banc panel of the commissioned judges
of this Court. In the alternative, on the merits, unlike the Majority, I would not deny
and dismiss the PFRs filed in these cases.
MICHAEL H. WOJCIK, Judge
MHW-12