M.J. Brouillette v. T. Wolf, Governor

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew J. Brouillette and Rep. :
James Christiana and Benjamin :
Lewis, :
:
Petitioners :
:
v. : No. 410 M.D. 2017
: Argued: September 13, 2018
Thomas Wolf, Governor and Joseph :
Torsella, Treasurer and Eugene :
DePasquale, Auditor General and :
The Commonwealth of Pennsylvania :
and Michael Turzai, Speaker of the :
House of Representatives and Dave :
Reed, House Majority Leader and :
Joseph B. Scarnati, III, President Pro :
Tempore of the Senate and Jake :
Corman, Senate Majority Leader and :
The Pennsylvania General Assembly, :
:
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY JUDGE WOJCIK FILED: July 2, 2019
Before the Court are the various preliminary objections (POs) filed by
Respondents1 to the amended petition for review (Amended Petition) filed by
1
Four sets of POs were filed by the following Respondents: (1) Thomas Wolf, Governor
of Pennsylvania (Governor), and the Commonwealth of Pennsylvania (Commonwealth)
(Footnote continued on next page…)
Matthew J. Brouillette, Representative James Christiana, and Benjamin Lewis
(collectively, Petitioners) challenging the constitutionality of some of the actions
taken by Respondents with regard to the state budget for fiscal years (FY) 2016-17
and FY2017-18.2 Senate Respondents have also filed an Application to Dismiss
for Mootness (Application). We overrule the POs in part, sustain the POs in part,
grant the Application, and dismiss the Amended Petition.
Petitioners filed the three-count Amended Petition alleging that
Respondents have violated various constitutional provisions by establishing
unbalanced budgets and authorizing loans to cover deficits that extended beyond
the relevant fiscal years. With regard to FY2016-17, Petitioners allege that the
General Operating Fund Budget closed with a $1.55 billion deficit in violation of
Article 8, Section 12(a)3 and Section 13(a) of the Pennsylvania Constitution4 and
(continued…)
(collectively, Commonwealth Respondents); (2) Joseph Torsella, Treasurer (Treasurer); (3) Jake
Corman, Senate Majority Leader, and Joseph B. Scarnati, III, President Pro Tempore of the
Senate (Senate Respondents); and (4) Michael Turzai, Speaker of the House of Representatives,
and Dave Reed, House Majority Leader (House Respondents). To a large extent, the POs
overlap. Respondent Eugene DePasquale, Auditor General (Auditor General), did not object, but
instead filed an answer to the Amended Petition and a notice of non-participation in these
proceedings.
2
See Section 617(a) of the Administrative Code of 1929 (Administrative Code), Act of
April 9, 1929, P.L. 177, as amended, added by the Act of September 27, 1978, P.L. 775, 71 P.S.
§237(a) (“The fiscal year shall be the period beginning on July 1 of each calendar year and
ending on June 30 of the calendar year next succeeding.”).
3
Article 8, Section 12(a) provides:
Annually, at the times set by law, the Governor shall submit to
the General Assembly:
(Footnote continued on next page…)
2
(continued…)
(a) A balanced operating budget for the ensuing fiscal year setting
forth in detail (i) proposed expenditures classified by department
or agency and by program and (ii) estimated revenues from all
sources. If estimated revenues and available surplus are less than
proposed expenditures, the Governor shall recommend specific
additional sources of revenue sufficient to pay the deficiency and
the estimated revenue to be derived from each source[.]
Pa. Const. art. VIII, §12(a).
Likewise, Section 613(1) of the Administrative Code states, in pertinent part:
As soon as possible after the organization of the General
Assembly, but not later than the first full week in February of each
year, . . . the Governor shall submit to the General Assembly
copies of original agency budget requests and all subsequent
revised agency budget requests and a State budget and program
and financial plan embracing:
(1) A balanced operating budget for the ensuing fiscal year setting
forth in detail:
(i) The amounts recommended by him to be appropriated to the
General Assembly, the Judicial Department, the Governor, and the
several administrative departments, boards, and commissions of
the State Government, and to institutions within the State, and for
all public purposes, classified by department or agency and by
program.
(ii) The estimated revenues or receipts from any and all sources,
and an estimated amount to be raised by taxation or otherwise,
including proposals for new revenues and receipts.
71 P.S. §233(a)(1). See also Section 701(g) of the Administrative Code, 71 P.S. §241(g) (“The
Governor shall have the power and it shall be his duty . . . [t]o submit to the General Assembly a
State budget[.]”).
3
Section 618(a) of the Administrative Code.5 To fulfill the Commonwealth’s debt
obligations, Petitioners claim that the Governor, Treasurer, and Auditor General
approved a $750 million line of credit in August 2017, which was used, in part, to
address the $1.55 billion deficit from the prior fiscal year. Because of this
borrowing, Petitioners contend that Respondents violated Article 8, Section
7(a)(2)(ii) of the Pennsylvania Constitution.6 In addition, Petitioners claim that as
revenues failed to materialize, the General Assembly and the Governor had a duty
to cut spending to ensure a fully funded budget. This resulted in a deficit, which
Petitioners refer to as an “unfunded loan” that “illegally followed the
Commonwealth” into the current fiscal year. Amended Petition ¶51.
(continued…)
4
Article 8, Section 13(a) provides, “Operating budget appropriations made by the
General Assembly shall not exceed the actual and estimated revenues and surplus available in the
same fiscal year.” Pa. Const. art. VIII, §13(a).
5
71 P.S. §238(a). Section 618(a) states, in pertinent part:
(a) The Department of Revenue in conjunction with the Secretary
of the Budget shall make revenue estimates for the use of the
Governor in preparing the budget with periodic revisions until the
final estimate is signed by the Governor not later than the time he
signs the general appropriations bill. The revenue estimates used
to sign any appropriation bill shall show separately State revenues,
Federal funds, and, if specifically appropriated, funds from other
sources. The Governor shall item veto any part of any
appropriation bill that causes total appropriations to exceed the
official estimate plus any unappropriated surplus.
6
Article 8, Section 7(a)(2)(ii) states, “The Governor, State Treasurer and Auditor
General, acting jointly, may . . . incur debt for the purpose of refunding other debt, if such
refunding debt matures within the term of the original debt.” Pa. Const. art. VIII, §7(a)(2)(ii).
4
Additionally, Petitioners assert that this deficit was then compounded
by the enactment of the budget for the FY2017-18 when the General Assembly
passed a $31.38 billion General Appropriations Bill, which became law when the
Governor failed to act on it. At the time of its passage, there was no revenue
package in place to fund it. Petitioners maintain that the expenditures exceeded
actual and estimated revenues in violation of the Constitution. Finally, Petitioners
argue that the Governor had the authority and the duty under Article 4, Sections
157 and 16 of the Pennsylvania Constitution8 to veto the budget, in whole or in part,
but failed to do either.
7
Article 4, Section 15 provides, in relevant part:
Every bill which shall have passed both Houses shall be presented
to the Governor; if he approves he shall sign it, but if he shall not
approve he shall return it with his objections to the House in which
it shall have originated, which House shall enter the objections at
large upon their journal, and proceed to re-consider it. If after such
re-consideration, two-thirds of all members elected to that House
shall agree to pass the bill, it shall be sent with the objections to the
other House by which likewise it shall be re-considered, and if
approved by two-thirds of all members elected to that House it
shall be a law . . . . If any bill shall not be returned by the Governor
within ten days after it shall have been presented to him, the same
shall be a law in like manner as if he had signed it, unless the
General Assembly, by their adjournment, prevent its return, in
which case it shall be a law, unless he shall file the same, with his
objections, in the office of the Secretary of the Commonwealth,
and give notice thereof by public proclamation within thirty days
after such adjournment.
Pa. Const. art. IV, §15.
8
Article 4, Section 16 states:
The Governor shall have power to disapprove of any item or
items of any bill, making appropriations of money, embracing
(Footnote continued on next page…)
5
In Count I, Petitioners seek declaratory judgment against the
Governor on the grounds that he violated Article 4, Sections 15 and 16 of the
Pennsylvania Constitution, and Section 618 of the Administrative Code, by not
vetoing all or part of the $31.38 billion General Appropriations Bill for FY2017-18
that exceeded estimated revenue thereby “authorizing the Commonwealth to
appropriate and spend funds that exceeded actual and estimated revenues.”
Amended Petition at 27.
In Count II, Petitioners seek declaratory judgment against the
Governor, Senate Respondents, House Respondents, and the Commonwealth
generally on the grounds that they violated Article 8, Section 13 of the
Pennsylvania Constitution because “the Commonwealth ended [FY2016-17] with a
$1.55 billion deficit,” and “the General Appropriations Bill for [FY2017-18]
violates [Article 8, Section 13] because, at the time of enactment, appropriations
contained therein ‘exceed[ed] the actual and estimated revenues and surplus
available in the same fiscal year[]’ by $600 million.” Amended Petition at 29.
Finally, in Count III, Petitioners seek declaratory relief against the
Governor, the Treasurer, the Auditor General, and the Commonwealth generally
for violating Article 8, Sections 7 and 12 of the Pennsylvania Constitution “by
authorizing lines of credit to fund a $1.55 billion deficit accrued in [FY2016-17]
(continued…)
distinct items, and the part or parts of the bill approved shall be the
law, and the item or items of appropriation disapproved shall be
void, unless re-passed according to the rules and limitations
prescribed for the passage of other bills over the Executive veto.
Pa. Const. art. IV, §16. See also Section 618(a) of the Administrative Code, 71 P.S. §238(a),
supra.
6
. . . that spanned across multiple fiscal years,” and “[t]hat the General
Appropriations Bill for [FY2016-17] violated the Pennsylvania Constitution by
appropriating funds in excess of anticipated revenues, thereby saddling the
Commonwealth with a debt of $1.55 billion without the explicit approval of the
General Assembly.” Amended Petition at 36.
Respondents filed a joint motion to dismiss for mootness alleging that
the subsequent passage of legislation eliminating any deficit from the past and
current fiscal years’ budget and appropriations bills rendered Petitioners’ claims
moot. This Court denied the joint motion on the basis that there are factual matters
in dispute, such as whether the General Operating Fund Budget is currently
balanced, and because Respondents did not explain how the subsequent legislation
mooted the claim that they engaged in long-term borrowing in violation of Article
8, Section 7 of the Pennsylvania Constitution. Brouillette v. Wolf (Pa. Cmwlth.,
No. 410 M.D. 2017, filed December 28, 2017), slip op. at 10.
Respondents also filed four sets of POs.9 Respondents variously
object on the following bases: (1) Petitioners lack capacity to sue (standing); (2)
the Amended Petition is insufficiently specific; and (3) the Amended Petition fails
to conform to the law or rule of court. In addition, Respondents demur on the
following grounds: that the Amended Petition (1) presents a non-justiciable
9
“In ruling on preliminary objections, the courts must accept as true all well-pled facts
that are material and all inferences reasonably deducible from the facts.” Pennsylvania
Independent Oil & Gas Association v. Department of Environmental Protection, 135 A.3d 1118,
1123 (Pa. Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017) (quoting Guarrasi v. Scott, 25 A.3d
394, 400 n.5 (Pa. Cmwlth. 2011)). “However, we ‘are not required to accept as true any
unwarranted factual inferences, conclusions of law or expressions of opinion.’” Id. (quoting
Guarrasi, 25 A.3d at 400 n.5). “To sustain preliminary objections, ‘it must appear with certainty
that the law will permit no recovery’ and ‘[a]ny doubt must be resolved in favor of the non-
moving party.’” Id. (quoting Guarrasi, 25 A.3d at 400 n.5).
7
political question; (2) fails to meet the standard for declaratory judgment; (3) fails
to state a claim against the Commonwealth or the Treasurer; (4) is moot; and (5) is
barred by the doctrine of laches. Respondents also assert that the Senate and
House Respondents are protected by legislative immunity and/or sovereign
immunity. Subsequently, on September 6, 2018, the Senate Respondents filed the
instant Application to dismiss Count II of the Amended Petition for mootness
because no practical relief may be granted for the legal claim presented therein
based on a change in circumstance and the requested relief is not precluded by our
prior opinion.10
I.
A.
As a preliminary matter, Respondents first claim that Petitioners
Brouillette and Lewis do not possess standing to prosecute the instant matter. In
general, the question of standing relates to whether a party is entitled to have the
court decide the merits of a dispute or of particular issues. Warth v. Seldin, 422
U.S. 490, 498 (1975). As the United States Supreme Court has stated:
A federal court cannot “pronounce any statute,
either of a State or of the United States, void, because
irreconcilable with the Constitution, except as it is called
upon to adjudge the legal rights of litigants in actual
controversies.” Have the appellants alleged such a
10
Pa. R.A.P. 1972(a)(4) provides that “any party may move . . . [t]o dismiss for
mootness.” “The mootness doctrine requires that an actual case or controversy must be extant at
all stages of review, not merely at the time the complaint is filed.” Pap’s A.M. v. City of Erie,
812 A.2d 591, 600 (Pa. 2002). “Pa. R.A.P. 1972[(a)](4) permits a party to move for dismissal
for mootness during litigation.” Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009),
aff’d, 992 A.2d 121 (Pa. 2010).
8
personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions? This is the gist of the question of standing[.]
Baker v. Carr, 369 U.S. 186, 204 (1962) (citation omitted).
Thus, “in order to have standing, a party must have an interest in the
controversy that is distinguishable from the interest shared by other citizens.
William Penn Parking Garage, Inc. v. City of Pittsburgh, [346 A.2d 269 (Pa.
1975)].” Sprague v. Casey, 550 A.2d 184, 187 (Pa. 1988). To surpass the
common interest shared by other citizens, the interest of a party must be
“substantial, direct and immediate.” Id.
In this case, with respect to all three counts in the Amended Petition,
Petitioners Brouillette and Lewis allege that they have standing in this matter based
on their status as taxpayers in this Commonwealth. See Amended Petition ¶¶8-10,
85-88. Regarding taxpayer standing, this Court has noted:
[T]he parameters of taxpayer standing in this
Commonwealth have been defined by our Supreme Court
in the case of Application of Biester v. Thornburgh, [409
A.2d 848 (Pa. 1979)]. In that case, our Supreme Court
stated that the “purpose of the requirement of standing is
to protect against improper plaintiffs.” Id. [at 851]. In
order to meet this requirement, a plaintiff must allege and
prove an interest in the outcome of the suit, which
surpasses “the common interest of all citizens in
procuring obedience to the law.” Id. [(citation omitted)].
To surpass the common interest of all citizens, the
interest must be substantial, direct, and immediate. Id.
Nevertheless, the Supreme Court recognized that
certain cases exist in which the facts warrant the granting
of standing to taxpayers where their interests arguably
are not substantial, direct and immediate. Biester, [409
A.2d at 852]; Consumer Party of Pennsylvania v.
9
Commonwealth, [507 A.2d 323, 328 (Pa. 1986)]. The
relaxing of those interest requirements in certain cases
where there is little causal connection between the action
complained of and the alleged injury is best explained by
the basic policy considerations underlying taxpayer
standing. Consumer Party, [507 A.2d at 328]. Our
Supreme Court articulated these policy considerations in
Biester as follows:
“The ultimate basis for granting standing to
taxpayers must … be sought outside the normal
language of the courts. Taxpayers’ litigation
seems designed to enable a large body of the
citizenry to challenge governmental action, which
would otherwise go unchallenged in the courts
because of the standing requirement. Such
litigation allows the courts, within the framework
of traditional notions of ‘standing,’ to add to the
controls over public officials inherent in the
elective process the judicial scrutiny of the
statutory and constitutional validity of their acts.”
Biester, [409 A.2d at 851 n.5 (citation omitted)].
In Consumer Party, the Supreme Court held that a
taxpayer seeking standing to sue must allege a
substantial, direct and immediate interest in the outcome
of the suit unless the taxpayer can show:
1. the governmental action would otherwise go
unchallenged;
2. those directly and immediately affected by the
complained of expenditures are beneficially
affected and not inclined to challenge the action;
3. judicial relief is appropriate;
4. redress through other channels is unavailable;
and
5. no other persons are better situated to assert the
claim.
10
Consumer Party, [507 A.2d at 329].
Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115-16 (Pa.
Cmwlth. 1998), aff’d, 757 A.2d 367 (Pa. 2000) (emphasis in original). See also
Fumo v. City of Philadelphia, 972 A.2d 487, 504 (Pa. 2009) (listing the five factors
to be considered in conferring taxpayer standing); Stilp v. Commonwealth, 940
A.2d 1227, 1233 (Pa. 2007) (same).
In Consumer Party, an organization and several citizen-taxpayers
commenced an action in this Court seeking a declaration that the Public Official
Compensation Law11, an act providing for increased compensation to public
officials, was unconstitutionally enacted and unconstitutional in its substantive
provisions. Id. at 326-27. In considering whether the organization and the
taxpayers possessed standing to present these claims, the Pennsylvania Supreme
Court observed:
We believe the circumstances of the instant case
establish the above five factors and therefore warrant the
grant of standing to appellants under the narrow
exception outlined in Biester. This case presents a prime
example of governmental action, which would otherwise
go unchallenged because the very individuals who
enacted the legislation are directly and beneficially
affected and are thus not inclined to challenge the
constitutionality of the legislation. Furthermore, judicial
relief is appropriate since the determination of the
constitutionality of an act is a function ultimately left to
the courts. Moreover, here redress through other
channels is unavailable. There is no administrative
agency which can provide relief and the legislators
themselves are unlikely to provide a meaningful
mechanism for redress. Lastly, there are not other
persons better situated to assert the claim because all
those who are directly and immediately affected by the
11
Act of September 30, 1983, P.L. 160, as amended, 65 P.S. §§366.1 – 366.5b.
11
[Public Official] Compensation Law are beneficially
affected and have not brought, and will not bring a cause
of action. Thus, there are no possible plaintiffs who can
assert a substantial, direct and immediate interest.
Id. at 329 (citations omitted).
Additionally, in Common Cause/Pennsylvania, a number of
organizations commenced an action in this Court seeking a declaration that an act
substantially amending the Public Transportation Law12 and the Vehicle Code13
was unconstitutionally enacted. Id. at 111. In considering whether the
organizations possessed standing to challenge the enactment, we noted:
Based upon the above five factors, we conclude
that the circumstances of the present case warrant the
granting of standing to petitioners. We believe that the
actions taken by the General Assembly in passing HB 67
would likely go unchallenged but for the present
proceeding, because the very individuals who enacted
such legislation are not going to be inclined to challenge
the constitutionality of the process by which [the statute]
was enacted. We further believe that judicial relief may
be appropriate since the ultimate function of the judiciary
is to determine the constitutionality of an act. Moreover,
redress through other channels is unavailable as there is
no administrative agency which can provide relief and
the members of the General Assembly, themselves, are
unlikely to provide a meaningful mechanism for redress.
Finally, we believe that there are no other persons better
situated to assert the constitutional claims which have
been raised in the present case than petitioners.
Id. at 116 (citations omitted).
Similarly, in Seeton v. Pennsylvania Game Commission, 937 A.2d
1028 (Pa. 2007), a taxpayer initiated a mandamus action against the State Game
12
74 Pa. C.S. §§1101-1520.
13
75 Pa. C.S. §§101-9805.
12
Commission (Commission) seeking to compel the Commission to enforce the
Pennsylvania Game and Wildlife Code14 and its regulations to prevent a hunting
preserve’s “canned hunts” in which customers pay a fee to shoot and kill animals
in an enclosed area. The taxpayer filed suit after the Commission determined that
it lacked jurisdiction over the preserve’s canned hunts. Both this Court and the
Supreme Court rejected the Commission’s preliminary objection that the taxpayer
lacked standing to prosecute the matter. As the Supreme Court explained:
In re Biester spoke principally to the importance of
assuring that a government agency’s actions not evade
review for want of an aggrieved party under the limited
terms of traditional standing. As noted, standing under In
re Biester aims to “ensure . . . judicial review which
would otherwise not occur,” when “those directly and
immediately affected by the complained of expenditures
are beneficially affected as opposed to adversely
affected.” 409 A.2d at 852. There appears to be no one
better situated than [the taxpayer] to challenge the non-
enforcement asserted here. Moreover, we perceive no
alternative means to invoke judicial review of the
important question before us. Thus, we find no error in
the Commonwealth Court’s determination that [the
taxpayer] had standing to bring the instant claim.
Seeton, 937 A.2d at 1033.
Thus, in Consumer Party, Common Cause/Pennsylvania, and Seeton,
standing was granted to taxpayers to assert the claims raised therein because
governmental action would likely evade review for want of an aggrieved party.
Likewise, in the instant matter, the Amended Petition alleges that all of the named
Respondents were involved in the budgetary process and its oversight and
implementation underlying the constitutional and statutory claims raised by
14
34 Pa. C.S. §§101-2965.
13
Petitioners Brouillette and Lewis therein. As a result, none of the Respondents are
inclined to challenge their own actions or inactions in this regard. Additionally,
their actions or inactions would otherwise go unchallenged; redress through any
other channels is unavailable; and no other persons are better situated to assert the
claim than Petitioners Brouillette and Lewis as taxpayers.15 Moreover, as outlined
infra, judicial review of the state budgetary process for FY2016-17 and FY2017-18
15
See also Lawless v. Jubelirer, 789 A.2d 820, 826-27 (Pa. Cmwlth.), aff’d, 811 A.2d
974 (Pa. 2002), wherein this Court observed:
There is, however, a narrow exception to the general
requirements of standing where a citizen may challenge an action
that would otherwise go unchallenged in the courts. This legal
precept is often applied where persons also assert standing on the
basis that they are taxpayers and, thus, have an interest in the
public fisc. . . .
Examining the five-part test enunciated in Consumer Party,
we conclude that petitioners do have standing. First, we believe
that there is a real possibility that the issue called into question
might otherwise go unchallenged. Respondent’s colleagues in the
Senate may not wish to raise the issue since those of his own party
may benefit from his increased responsibilities and those of the
other major party will have need to work with him in [] his
capacities [as Lieutenant Governor, President pro tempore of the
Senate, and Senator]. For similar reasons, those legislators directly
and immediately affected by his concurrent occupation of the three
positions may benefit more, both personally and politically, by not
challenging his authority.
Next, we believe that judicial relief is appropriate to
challenge the constitutionality of this issue of first impression,
challenging an individual’s right to occupy the positions of
Lieutenant Governor, President pro tempore of the Senate, and
Senator simultaneously, and, if warranted, declare that a need for a
special election is present. Additionally, redress is not available
elsewhere, and no persons who are better situated to commence
this lawsuit have even been suggested.
14
is eminently appropriate. Accordingly, we overrule Respondents’ POs with
respect to Petitioners Brouillette’s and Lewis’s standing to prosecute the instant
Amended Petition. Seeton; Consumer Party; In re Biester; Lawless.
B.
In contrast, Petitioner Christiana is a representative in the
Pennsylvania General Assembly, representing Beaver and Washington Counties.
Amended Petition ¶11. Petitioner Christiana only joins in Count III of the
Amended Petition alleging that the Governor, the Treasurer, the Auditor General,
and the Commonwealth generally violated Article 8, Section 7 of the Pennsylvania
Constitution, based on the purportedly illegal long-term borrowing, and Article 8,
Section 12(a), based on the Governor’s purported submission of an unbalanced
operating budget to the General Assembly, with the assistance of the Treasurer and
the Auditor General. Amended Petition ¶¶110-138. Petitioner Christiana asserts
that he did not vote to authorize the assumption of such debt; the budget deficit
purportedly usurps his authority to vote on whether such debt should be assumed;
and he did not vote to use short-term borrowing to finance continued deficit
spending. Amended Petition ¶¶131, 132, 135.
As the Supreme Court has explained:
[L]egislative standing is appropriate only in limited
circumstances. Standing exists only when a legislator’s
direct and substantial interest in his or her ability to
participate in the voting process is negatively impacted,
see Wilt [v. Beal, 363 A.2d 876 (Pa. Cmwlth. 1976)], or
when he or she has suffered a concrete impairment or
deprivation of an official power or authority to act as a
legislator, see Fumo (finding standing due to alleged
usurpation of legislators’ authority to vote on licensing).
These are injuries personal to the legislator, as a
15
legislator. By contrast, a legislator lacks standing where
he or she has an indirect and less substantial interest in
conduct outside the legislative forum which is unrelated
to the voting or approval process, and akin to a general
grievance about the correctness of governmental conduct,
resulting in the standing requirement being unsatisfied.
Id. (rejecting standing where legislators’ interest was
merely disagreement with way administrator interpreted
or executed her duties, and did not interfere with
legislators’ authority as members of the General
Assembly).
Markham v. Wolf, 136 A.3d 134, 145 (Pa. 2016).
Based on the foregoing, and the allegations raised in the Amended
Petition, we hold that Petitioner Christiana has failed to demonstrate the requisite
legislative standing to assert Count III of the Amended Petition. The crux of
Petitioner Christiana’s claims in Count III relate to the purported invalidity of the
actions of the Governor, the Treasurer, the Auditor General, and the
Commonwealth generally, and do not assert an injury that is personal to him while
he was acting in his representative capacity as a legislator. As noted by the
Supreme Court:
[T]hese claims of injury reflect no impact on [the Senate]
Appellants’ right to act as legislators, and are more, in
our view, in the nature of a generalized grievance about
the correctness of governmental conduct. Simply stated,
the assertion that another branch of government—here,
the executive branch through the Governor’s Executive
Order—is diluting the substance of a previously enacted
statutory provision is not an injury which legislators, as
legislators, have standing to pursue.
Markham, 136 A.3d at 145.
Moreover, as outlined above, Petitioners Brouillette and Lewis
possess taxpayer standing to vindicate the purported harms alleged in Count III of
the Amended Petition. See Markham, 136 A.3d at 146 (“[C]hallengers exist who
16
are, from a standing perspective, sufficiently impacted by the Governor’s issuance
of Executive Order 2015-05, as aptly demonstrated by the parties in this
matter . . . .”). Accordingly, we sustain Respondents’ POs with respect to
Petitioner Christiana’s standing, and dismiss him as a party to Count III of the
Amended Petition. Id.
II.
Additionally, as a preliminary matter, the Commonwealth has filed a
PO that it was improperly joined as a party in this case. On review, it is clear that
Petitioners Brouillette and Lewis have erroneously raised claims against the
Commonwealth generally as a party in Counts II and III of the Amended Petition.
As the Pennsylvania Supreme Court has explained:
The Constitution of Pennsylvania provides that the
commonwealth and its agents may only be sued in the
manner, in the courts, and in cases specified by the
General Assembly. Pa. Const. art. 1[,] §11. The General
Assembly has specified that the Commonwealth and its
agents remain immune from suit except when immunity
is specifically waived. 42 Pa. C.S. §8522. “When the
General Assembly specifically waives sovereign
immunity, a claim against the Commonwealth and its
officials . . . shall be brought only [as provided by] Title
42 . . . unless otherwise specifically authorized by
statute.” 1 Pa. C.S. §2310. The General Assembly has
waived sovereign immunity for Commonwealth parties
in limited cases. 42 Pa. C.S. §8522. The General
Assembly has defined a Commonwealth party as a
“Commonwealth agency and any employee thereof, but
only with respect to an act within the scope of his office
or employment.” 42 Pa. C.S. §8501.
This Court has further determined that sovereign
immunity does not apply to “governmental entities other
than the commonwealth itself,” and that government
17
entities may not avoid suit simply due to their
governmental nature. Specter v. Commonwealth, [341
A.2d 481, 482 (Pa. 1975)]. Implicit in this premise is the
distinction between the Commonwealth and its numerous
subdivisions. Appellees in this case have named the
Commonwealth, to which the legislature has not waived
sovereign immunity, and have failed to name an
appropriate Commonwealth party as to which immunity
has been waived. Amending their complaint to substitute
a Commonwealth party for the Commonwealth amounts
to the addition of a new party and not merely the
correction of a captioned party name.
Tork-Hiis v. Commonwealth, 735 A.2d 1256, 1258 (Pa. 1999).
To this end, Pa. R.C.P. No. 2102(a)(2) provides that, while “[a]n
action by the Commonwealth” may be brought in the name of “the Commonwealth
of Pennsylvania,” an action against a “Commonwealth agency or party” generally
may not. Citing Article 1, Section 11 of the Pennsylvania Constitution and 1
Pa. C.S. §2310, the Official Note to Pa. R.C.P. No. 2102 recognizes that there is
“only” one exception: Where there is a cause of action against the Commonwealth
generally and an express “right of action [against the Commonwealth generally]
has been authorized by statute.” See also Finn v. Rendell, 990 A.2d 100, 105 (Pa.
Cmwlth. 2010) (“The Court also notes that the Commonwealth government and its
various agencies and officers are separate entities and that ‘the Commonwealth of
Pennsylvania, itself, which is clearly not a Commonwealth agency, still enjoys
absolute immunity pursuant to 1 Pa. C.S. §2310.’”) (citation omitted and emphasis
in original).
As a result, Petitioners Brouillette and Lewis improperly joined the
Commonwealth generally as a respondent in the instant matter.16 Accordingly, we
16
Petitioners’ reliance on League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.
2018), Pennsylvania State Association of County Commissioners v. Commonwealth, 52 A.3d
(Footnote continued on next page…)
18
sustain Respondents’ POs with respect to the improper joinder of the
Commonwealth generally, and dismiss it as a party to Counts II and III of the
Amended Petition.
(continued…)
1213 (Pa. 2012), and Stilp v. Commonwealth, 974 A.2d 491 (Pa. 2009), to support the
Commonwealth’s status as a party herein is misplaced. None of these cases involved the
consideration or disposition of a preliminary objection alleging the misjoinder of the
Commonwealth generally as a party, its absolute immunity, or the application of Article 1,
Section 11 of the Pennsylvania Constitution, 1 Pa. C.S. §2310, or Pa. R.C.P. No. 2102.
Additionally, in Finn, cited above, the petitioners sought relief in the form of a writ of
mandamus to compel reimbursement for the salary paid to its full-time district attorney during a
two-year period, and did not assert a claim for monetary damages. See id. at 102. As this Court
explained:
Even assuming, arguendo, that in theory sovereign immunity
would not bar mandamus, the nature of the Commonwealth as an
entity separate from its agencies and officers makes any such
action a practical impossibility. The Commonwealth comprises
three branches of government, each divided into many independent
subparts. . . . A request that the Commonwealth be ordered to do
something begs the question which of the many actors comprising
state government is to be held accountable. Since merely naming
the Commonwealth is insufficient to state a claim against a
Commonwealth party, Tork–Hiis, it would seem self-evident that if
a specific state party can be identified as having a mandatory or
ministerial duty, that party must be the named defendant, both in
order to make out a cause of action in mandamus and to effectuate
enforcement of any ensuing order.
Id. at 105-06. Likewise, in the instant matter, any meaningful declaratory relief that this Court
could provide must be directed to the actions of some identifiable Commonwealth party that
violated some identifiable constitutional or statutory provision rather than to the Commonwealth
generally.
19
III.
With respect to the purported violations of Article 8, Section 12(a) of
the Pennsylvania Constitution and Sections 613(1) and 701(g) of the
Administrative Code as asserted in Counts I, II, and III of the Amended Petition,
the Governor and the Treasurer demur,17 in relevant part, on the basis that
Petitioners Brouillette and Lewis fail to state a valid claim for declaratory relief.
We agree.
Petitions for declaratory judgments are governed by the provisions of
the Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541. Ronald H. Clark, Inc. v.
Township of Hamilton, 562 A.2d 965, 967 (Pa. Cmwlth. 1989). Although the
Declaratory Judgments Act 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. Ruszin v. Department of Labor and Industry, 675 A.2d 366, 371 (Pa.
Cmwlth. 1996). Thus, the Declaratory Judgments Act requires a petition praying
for declaratory relief to state an actual controversy between the petitioner and the
named respondent. Pennsylvania State Lodge v. Department of Labor and
Industry, 692 A.2d 609, 613 (Pa. Cmwlth. 1997), aff’d, 707 A.2d 1129 (Pa. 1998).
Declaratory judgments are not obtainable as a matter of right. Ronald
H. Clark, Inc., 562 A.2d at 968-69. Rather, whether a court should exercise
jurisdiction over a declaratory judgment proceeding is a matter of sound judicial
discretion. Id. Thus, the granting of a petition for a declaratory judgment is a
matter lying within the sound discretion of a court of original jurisdiction. Gulnac
17
As noted above, the Auditor General did not preliminarily object, but instead filed an
answer to the Amended Petition and a notice of non-participation in these proceedings.
20
v. South Butler School District, 587 A.2d 699, 701 (Pa. 1991). As the
Pennsylvania Supreme Court has stated:
The presence of antagonistic claims indicating imminent
and inevitable litigation coupled with a 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.
Id. at 701 (citations omitted)
The Amended Petition summarizes the relevant stages of the budget
process as follows. Preparation for the annual budget “begins in approximately
August of the prior fiscal year for which the [b]udget will be adopted,” and the
Office of the Budget (Budget Office) issues Budget Instructions to “administrative
agencies, which are instructions that provide the agencies with detailed guidance in
constructing their budget requests.” Amended Petition ¶¶23, 24. 18 The Governor
18
Section 609(a) of the Administrative Code provides, in pertinent part:
(a) The [Budget Office] is hereby established as an administrative
agency within the Governor’s Office[, which] shall continue to
exercise the powers and perform the duties vested in and imposed
upon the Secretary of the Budget [(Secretary)] and shall be
centrally concerned with the development of the budget request of
the Governor and with the decisions necessary to allocate revenues
among the various Commonwealth programs.
71 P.S. §229(a).
(Footnote continued on next page…)
21
(continued…)
In turn, Section 610, states, in relevant part:
(a) The [Secretary] shall, in each year obtain and prepare
financial and program information necessary for the preparation of
a State budget for the budget year beginning July 1 and for the
preparation for financial and program projections for the budget
year and for four succeeding years. He shall, not later than August
15 of such year distribute to the Governor, to the Lieutenant
Governor, to the Auditor General, to the State Treasurer, to the
Attorney General, to each administrative department, to each
independent administrative board and commission, to the Chief
Clerk of the Senate, to the Chief Clerk of the House of
Representatives, to the State court administrator, and to all
institutions or other agencies which desire State appropriations to
be made to them, the proper instructions and blanks necessary to
the preparation of the budget requests with a notice that such
blanks shall be returned with the information desired, not later than
November 1 of the same year. Such blanks shall be in such form
as shall be prescribed by the [S]ecretary, to procure any or all
information pertaining to the purposes of all programs to be funded
in the budget, the revenues, expenditures, program activities and
accomplishments for the preceding fiscal year, for the current
fiscal year, and for the budget year and for four succeeding years,
the appropriations made for the preceding fiscal year, the
expenditures therefrom, encumbrances thereon, the amount
unencumbered and unexpended, an itemized estimate of the
revenues and expenditures of the current fiscal year, for the budget
year and succeeding years, and an estimate of the revenue amounts
needed and program activity and accomplishment levels for the
respective departments, boards, commissions, for expenses of the
General Assembly, for the Judicial Department, and for any and all
institutions, or other agencies to which appropriations are likely to
be made by the General Assembly for the budget year and ensuing
years. . . . It shall be the duty of each administrative department,
and each independent administrative board and commission to
comply, not later than November 1, with any and all requests made
by the [Secretary] in connection with the budget.
(Footnote continued on next page…)
22
also issues Program Policy Guidelines to administrative agencies to aid in
formulating the proposed budget. Id. ¶25. From October to January, the Budget
Office reviews the agencies’ budget requests to see if they comply with the
Program Policy Guidelines and, following review, the Budget Office makes
recommendations to the Secretary and the Governor. Id. ¶¶27-29, 33. “[B]y
statute and in accordance with the . . . Constitution’s balanced budget requirement,
the combined total of all agency requests must balance with the estimated total
revenues from existing sources; otherwise, new revenue sources must be
recommended.” Id. ¶30 (emphasis in original). Based on the recommendations
and his independent review, the Governor formulates the Executive Budget in
January and submits the proposed budget to a joint session of the General
Assembly in a budget address in February. Id. ¶¶34-35. Article 8, Section 12(a)
and Sections 613 and 701(g) require the Governor to submit a balanced budget that
sets forth in detail proposed expenditures by department, agency, or program, and
(continued…)
(b) The [Secretary] may, under the direction of the Governor,
make further inquiries and investigations as to the financial needs,
expenditures, estimates of levels of program activities and
accomplishments, or revenues, of any department, board,
commission, authority, political subdivision, institution or other
agency receiving money from the State Treasury. The Governor
may, after giving to each department, board or commission an
opportunity to be heard, approve, disapprove or alter the budget
requests. The [Secretary] shall, on or before January 1 next
succeeding, submit to the Governor, in writing, the above
information, and any additional requested by the Governor, as the
basis for the Governor’s requests for appropriations for the next
succeeding year.
71 P.S. §230.
23
estimated revenues from all sources, and require the Governor to recommend
additional sources of revenue if estimated revenue and available surplus are less
than the proposed expenditures. Id. ¶31-32.
Once submitted by the Governor, “the appropriations committees in
both the Pennsylvania House and the Pennsylvania Senate conduct hearings to
assess all funding requests made by administrative agencies.” Amended Petition
¶36. The General Assembly must then draft and enact a General Appropriations
Bill, “which contains appropriations for the executive, legislative, and judicial
departments; for public schools; and for public debt.” Id. ¶38. Article 8, Section
13 requires the General Assembly to adopt such a budget, and appropriations for
the operating budget “shall not exceed the actual and estimated revenues and
surplus available in the same fiscal year,” unless revenue measures are enacted if
necessary to balance the budget. Id. ¶¶37, 42, 43.
In attempting to invoke actionable violations of Article 8, Section
12(a) of the Pennsylvania Constitution19 and Sections 613(1) and 701(g) of the
19
Petitioners Brouillette and Lewis implicate the Treasurer and the Auditor General in
the purported constitutional violation, in relevant part, as follows:
[Article 8, Section 12(a)] clearly and unequivocally places
the onus to present a balanced budget on the Governor. The
Governor, however, does not control the public moneys that make
up the treasury. The Treasurer and the Treasury Department are
entrusted with responsibility for the Commonwealth’s funds. See
[Sections 301 through 303 of the Fiscal Code, Act of April 29,
1929, P.L. 343, as amended,] 72 P.S. §§301-03. Without the
assistance of the Treasurer, the Governor is incapable of managing
the treasury to meet his constitutional mandate. Conversely,
absent the Treasurer’s complicity, the Governor would be unable
to borrow the funds that permitted Pennsylvania’s budget to be
unbalanced for two consecutive fiscal years as Article [8], Section
12 only allows the Governor, Auditor General and Treasurer,
(Footnote continued on next page…)
24
Administrative Code, Petitioners Brouillette and Lewis fail to allege or
demonstrate the necessary connection between the Governor’s proposed Executive
Budget that was submitted to the General Assembly pursuant to the foregoing
provisions, and the ultimate General Appropriations Bills that were enacted by that
body for FY2016-17 and FY2017-18 or any purported debt incurred thereunder.
To this end, Petitioners Brouillette and Lewis assert that “[t]he
General Appropriations Bill reflects the priorities mutually established by the
Governor and the General Assembly through the budgeting process.” Amended
Petition ¶39. Petitioners further contend that the Governor “violated Article [8],
Section 12 . . . by allowing a $31.38 billion General Appropriations Bill to become
law without sufficient revenue sources to fund each appropriation included in the
Bill.” Id. ¶95. However, these are incorrect legal conclusions that may not be
drawn from the budget process as outlined in the Amended Petition.
Indeed, as the Pennsylvania Supreme Court has explained:
Under Article II, Section 1 of our Constitution, the
legislative power of the Commonwealth is vested in the
General Assembly. PA. CONST. art. II, §1. The
legislative power is the power “to make, alter and repeal
laws.” Blackwell v. State Ethics Comm’n, [567 A.2d
630, 636 (Pa. 1989)] (quoting Mount Lebanon v. County
Bd. of Elections, [368 A.2d 648 (Pa. 1977)]; In re
Marshall, [69 A.2d 619, 626 (Pa. 1949)]). Article IV,
(continued…)
acting jointly, to incur debt. Accordingly, the violation of Article
[8], Section 12 that gives rise to this action could not have
occurred without the active participation of the Treasurer.
Petitioners’ Omnibus Brief in Opposition to the Preliminary Objections at 47-48 (emphasis in
original).
25
Section 2 vests “[t]he supreme executive power” in the
Governor, who “shall take care that the laws be faithfully
executed.” PA. CONST. art. IV, §2. The Governor’s
powers include his power to veto legislation to the extent
that this power is vested in him by Sections 15 and 16 of
Article IV. The Governor’s exercise of his veto power is
unique in that it is essentially a limited legislative power,
particularly in the appropriations context. Roddey v.
County Council of County of Allegheny, 841 A.2d 1087,
1091 (Pa. Cmwlth. 2004) (en banc). Although the
Constitution directs the Governor each year to “submit” a
budget to the General Assembly, PA. CONST. art. VIII,
§12, appropriations are to be “made by the General
Assembly,” PA. CONST. art. VIII, §13, and “[n]o money
shall be paid out of the treasury, except on appropriations
made by law,” PA. CONST. art. III, §24. So long as the
General Assembly keeps the budget submitted by the
Governor balanced, see PA. CONST. art. VIII, §13(a), the
Constitution allows the General Assembly to deviate as
much as it wishes from the Governor’s proposals.
“[T]he General Assembly enacts the legislation
establishing those programs which the state provides for
its citizens and appropriates the funds necessary for their
operation[] [while] [t]he executive branch implements
the legislation by administering the programs.” Shapp v.
Sloan, [391 A.2d 595, 604 (Pa. 1978)] (plurality
opinion). This process is “fundamental within
Pennsylvania’s tripartite system.” Id.
In administering the programs funded by the
General Assembly, the executive branch must abide by
all requirements and restrictions of the relevant
legislation and may not spend more than the amount
appropriated by the General Assembly. Id. Moreover,
“[t]he executive branch may not of its own initiative use
funds appropriated for one program in carrying out
another and may not spend on a program more than its
designated amount. It is in this way that the doctrine of
separation of powers functions.” Id.
Jubelirer v. Rendell, 953 A.2d 514, 529-30 (Pa. 2008) (emphasis added).
26
The disconnect between the Governor’s exercise of his authority
under Article 8, Section 12(a) of the Pennsylvania Constitution and Sections
613(1) and 701(g) of the Administrative Code, and the General Assembly’s
enactment of General Appropriations Bills for FY2016-17 and FY2017-18, is
evidenced by the declaratory relief sought by Petitioners Brouillette and Lewis in
the Amended Petition. As indicated above, in Count I, these Petitioners seek a
declaration that the Governor violated Article 4, Sections 15 and 16 of the
Pennsylvania Constitution and Section 618 of the Administrative Code “by
authorizing the Commonwealth to appropriate and spend funds that exceeded
actual and estimated revenues.” Amended Petition at 27.
Additionally, in Count II, they seek a declaration that the Governor,
Senate Respondents, House Respondents, and the Commonwealth generally
violated Article 8, Section 13 of the Pennsylvania Constitution because “the
Commonwealth ended [FY2016-17] with a $1.55 billion deficit,” and “the General
Appropriations Bill for [FY2017-18] violates [Article 8, Section 13] because, at the
time of enactment, appropriations contained therein ‘exceed[ed] the actual and
estimated revenues and surplus available in the same fiscal year[]’ by $600
million.” Amended Petition at 29.
Finally, in Count III, they seek a declaration that the Governor, the
Treasurer, the Auditor General, and the Commonwealth generally violated Article
8, Sections 7 and 12 of the Pennsylvania Constitution “by authorizing lines of
credit to fund a $1.55 billion deficit accrued in [FY2016-17] . . . that spanned
across multiple fiscal years,” and “[t]hat the General Appropriations Bill for
[FY2016-17] violated the Pennsylvania Constitution by appropriating funds in
27
excess of anticipated revenues, thereby saddling the Commonwealth with a debt of
$1.55 billion without the explicit approval of the General Assembly.” Id. at 36.
As outlined above, Petitioners Brouillette and Lewis have failed to
allege an actionable claim regarding the Governor’s purported violations of Article
8, Section 12(a) of the Pennsylvania Constitution and Sections 613(1) and 701(g)
of the Administrative Code, as asserted in Counts I, II, and III of the Amended
Petition, or actionable claims against the Treasurer and Auditor General as well,
and have failed to request any declaratory relief based on these purported
violations. The Amended Petition simply fails to allege or demonstrate that the
Governor’s proposed Executive Budget that was submitted to the General
Assembly pursuant to the foregoing provisions for FY2016-17 and FY2017-18 was
the same as the purportedly unbalanced General Appropriations Bills that were
enacted by the General Assembly for those fiscal years, or that the Treasurer or
Auditor General played any role in the actions enumerated in these provisions.
Moreover, these Petitioners do not ask for any relief with respect to
the Governor’s, the Treasurer’s, or the Auditor General’s purported violation of
these provisions. Thus, any order issued by this Court granting declaratory relief
based on the purported violation of Article 8, Section 12(a) of the Pennsylvania
Constitution and Sections 613(1) and 701(g) of the Administrative Code would be
merely advisory. Accordingly, the POs in the nature of a demurrer with respect to
these claims in Counts I, II, and III of the Amended Petition are sustained, and
these claims are dismissed.
28
IV.
With respect to the Governor’s purported violation of Article 4,
Sections 15 and 16 of the Pennsylvania Constitution and Section 618(a) of the
Administrative Code, as alleged in Counts I and II, the Governor demurs, in
relevant part, on the basis that Petitioners Brouillette and Lewis fail to state a valid
claim for declaratory relief. Again, we agree.
The Pennsylvania Supreme Court has summarized the Governor’s
general veto power under Article 4, Section 15, as follows:
By conferring upon the Governor the authority to
nullify legislation that has passed both legislative houses,
Section 15 entrusts him with the obligation both to
examine the provisions of the legislation within the ten
days allotted by Section 15 and to either approve it or
return it, disapproved, for legislative reconsideration.
Disapproval requires the Governor to furnish the
legislature with his specific objections in order to enable
the legislature to fulfill its reciprocal obligations to
record the Governor’s objections upon the legislative
journal and reconsider the bill. This procedure is
enshrined in our organic charter, and ensures that the
legislature and the public receive notice of the
Governor’s veto and the resulting status of the
legislation. The Governor is thereby an “integral part of
the lawmaking power of the state.” No bill may become
law without first being submitted to the Governor for
approval or disapproval. Although legislative power is
vested in the General Assembly pursuant to Article II of
the Constitution, we have described the Governor’s
authority to veto a bill as a form of “limited legislative
power.”
The Pennsylvania colony inherited the Governor’s
veto power from the King of England. Notably, the
monarch’s frequent use of this lawmaking authority,
which was vested in him as a “constituent if not a
controlling third body of the parliament, in which he
29
might and not infrequently did sit in person,” was set
forth as first among the grievances of the colonies in the
Declaration of Independence. From the colonies, the
veto power passed into nearly all of the American
constitutions, state and federal. However, “[u]nlike the
royal prerogative,” the executive veto is “exercised by a
democratically elected leader pursuant to a clearly
defined constitutional procedure.” Moreover, in
Pennsylvania, the Governor’s veto power is more
constrained than that enjoyed by a number of his peers
or by the President of the United States, in that the
Governor does not have the luxury of inaction. That is,
if Pennsylvania's Governor fails to act upon a bill that
has been passed in both houses, the bill becomes law
without his signature. The “pocket veto” enshrined in
some state constitutions and in the United States
Constitution prevents a bill from becoming law if the
legislature “stands adjourned when the President’s
consideration period comes to a close.[20]
20
The process by which a federal bill is enacted into law has been outlined as follows:
The [United States] Constitution contemplates that every
bill shall receive the consideration of three deliberative parties
before it becomes law. After each House of Congress approves a
bill, it must be presented to the President. If the President signs the
bill, it is law. A bill may become law without the President’s
approval, but only under two circumstances. If the President
vetoes the bill, two-thirds of each house may override his objection
and make the bill law. Alternatively, if the President simply does
not act on the measure within ten days after presentment,
excluding Sundays, and Congress does not adjourn before the ten-
day period ends, the bill becomes law without the President’s
approval. [See Clause 2 of Article 1, Section 7 of the United States
Constitution, U.S. Const. art. I, §7, cl. 2 (“If any Bill shall not be
returned by the President within ten Days (Sundays excepted) after
it shall have been presented to him, the Same shall be a Law, in
like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a
Law.”).]
(Footnote continued on next page…)
30
Scarnati v. Wolf, 173 A.3d 1110, 1120-21 (Pa. 2017) (citations and footnote
omitted and emphasis added). See also Commonwealth ex rel. Attorney General v.
Barnett, 48 A. 976 (Pa. 1901), in which the Supreme Court stated:
“The power to veto legislation which is conferred upon
the president makes him in effect a third branch of the
legislature. The power is legislative, executive and the
questions presented to his mind are precisely the same as
those the two houses of congress must determine in
passing a bill. Whether the proposed law is necessary or
expedient, whether it is constitutional, whether it is so
framed as to accomplish its intent, and so on, are
questions transferred from the two houses to the
president with the bill itself.”
Id. (citation omitted).
Whether the Governor’s veto power is considered to be the exercise of
either a legislative21 or executive power,22 in the instant matter we are confronted
(continued…)
If Congress stands adjourned when the President’s
consideration period comes to a close, the bill “shall not be a
Law.” [See id.] This passive nullification of a legislative act is
called a pocket veto. Unlike its counterpart the return veto, the
pocket veto does not impose a duty on the President to return the
bill to Congress with his objections. Moreover, Congress does not
reconsider a pocket vetoed bill in the same manner as it would a
return vetoed bill. A bill that is pocket vetoed may be reintroduced
and passed by a simple majority, in contrast to the two-thirds
requirement that applies when a return veto is subject to
reconsideration.
John Houston Pope, The Pocket Veto Reconsidered, 72 Iowa L. Rev. 163-64 (1986) (footnotes
omitted).
21
See Article 2, Section 1 of the Pennsylvania Constitution, Pa. Const. art. II, §1 (“The
legislative power of this Commonwealth shall be vested in a General Assembly, which shall
consist of a Senate and a House of Representatives.”).
31
with the situation in which the General Appropriations Bill for the FY2017-18
budget became law pursuant to Article 4, Section 15 of our Constitution based
upon his failure to exercise either power with respect to its enactment. Indeed, as
outlined above, Article 4, Section 15 provides, in relevant part, “If any bill shall
not be returned by the Governor within ten days after it shall have been presented
to him, the same shall be a law in like manner as if he had signed it[.]” Pa. Const.
art. IV, §15.
As a result, we are unable to grant the requested declaratory relief
because the Governor in no way “violated the Pennsylvania Constitution . . . by
authorizing the Commonwealth to appropriate and spend funds that exceeded
actual and estimated revenues.” Amended Petition at 27.23 To the contrary, the
(continued…)
22
See Article 4, Section 2 of the Pennsylvania Constitution, Pa. Const. art. IV, §2 (“The
supreme executive power shall be vested in the Governor, who shall take care that the laws be
faithfully executed[.]”).
23
See Amended Petition ¶76 (“Governor Wolf had the authority and the obligation to
take corrective action before he allowed the $32 billion appropriations package to become law.”)
(emphasis in original); id. ¶77 (“When the $31.38 billion General Appropriations Bill was
presented to him, Governor Wolf had both the authority and the duty to (i) veto the Bill entirely
or (ii) use the item veto to reduce appropriations to a level commensurate with actual and
estimated revenues.”); id. ¶95 (“Specifically, Governor Wolf violated . . . Article IV, Section 16,
by allowing a $31.38 billion General Appropriations Bill to become law without sufficient
revenue sources to fund each appropriation included in the Bill.”); id. ¶98 (“Governor Wolf
allowed the $31.38 billion General Appropriations Bill to become law without adequate revenues
to fund it.”); Petitioners’ Omnibus Brief in Opposition to the Preliminary Objections at 52
(“Despite Governor Wolf’s argument, Petitioners’ claims do not challenge the Governor’s
discretionary authority to use his veto power. The relief sought does not seek to compel
Governor Wolf to take any action. Rather, it merely asks this Court to determine whether the
Governor’s competing constitutional obligations require him to employ his veto power to prevent
the enactment of an unconstitutional balanced budget.”); id. at 53-54 (“The Amended Petition []
does not ask this Court to compel the Governor to take any specific actions, which is a
(Footnote continued on next page…)
32
Governor “authorized” nothing with respect to the General Appropriations Bill for
the FY2017-18 budget; the bill became law by operation of law pursuant to Article
4, Section 15 of the Pennsylvania Constitution based on the Governor’s inaction
within the enumerated period of time. There is no language within this
constitutional provision that requires the Governor to exercise this power in any
particular manner24 including a duty to determine the constitutionality of a bill with
which he is presented that has been duly enacted by the General Assembly or
compelling him to exercise his veto authority due to the purported
unconstitutionality of that bill. This Court has explained:
As the Governor notes, [the petitioner] has pleaded only
that [he] is the Governor and in that capacity he signed
Senate Bill 850 into law without first inquiring whether
the Complex was protected by a public trust or seeking
an opinion of the Attorney General regarding the
constitutionality of Senate Bill 850. These factual
averments are simply insufficient to establish any
liability on the part of the Governor, and [the petitioner]
has cited to no legal authority for the proposition that a
governor has a duty to make such inquiries before
signing legislation.
Pilchesky v. Rendell, 932 A.2d 287, 289 (Pa. Cmwlth. 2007). Thus, the only
limitation within this constitutional provision is the time period within which the
(continued…)
prerequisite for mandamus relief. . . . Petitioners only request this Court to define and interpret
the Governor’s constitutional and statutory obligations in light of the balanced budget mandate.”)
(emphasis in original).
24
See, e.g., Stilp, 974 A.2d at 495 (“[A] constitutional provision is to be interpreted
insofar as possible in terms of its spirit and intention. Furthermore, such a provision is to be
interpreted in its popular sense as understood by the people who adopted it. The ‘ultimate
touchstone, nevertheless, must remain the language of the Constitution itself.’”) (citations
omitted).
33
Governor may exercise the power conferred thereby. Moreover, the same rationale
holds true for Petitioners’ claims with respect to the Governor’s failure to exercise
his item veto power under Article 4, Section 16. See Jubelirer, 953 A.2d at 528
(“[W]here two provisions of our Constitution relate to the same subject matter,
they are to be read in pari materia.”) (citations omitted).
Finally, regarding the purported violation of Section 618(a) of the
Administrative Code, as stated above, that provision states, in relevant part:
(a) The Department of Revenue in conjunction with the
Secretary of the Budget shall make revenue estimates for
the use of the Governor in preparing the budget with
periodic revisions until the final estimate is signed by
the Governor not later than the time he signs the
general appropriations bill. . . . The Governor shall item
veto any part of any appropriation bill that causes total
appropriations to exceed the official estimate plus any
unappropriated surplus.
71 P.S. §238(a) (emphasis added).
However, the Amended Petition fails to allege that the Governor
signed either the final estimate provided by the Department of Revenue and the
Secretary for the FY2017-18 budget, or that he signed the General Appropriations
Bill for that fiscal year. As a result, contrary to Petitioners’ assertion, the express
provisions of Section 618(a) are not implicated in this case and Petitioners’ claim
to the contrary is likewise without merit. Accordingly, the POs in the nature of a
demurrer with respect to the claims in Counts I and II that the Governor violated
Article 4, Sections 15 and 16 of the Pennsylvania Constitution and Section 618(a)
of the Administrative Code are sustained, and these claims are dismissed.
34
V.
With respect to the General Assembly’s and the House and Senate
Respondents’ purported violation of Article 8, Section 13 of the Pennsylvania
Constitution, the Amended Petition alleges, in relevant part, that spending in the
General Appropriations Bill for FY2016-17 enacted by the General Assembly, and
approved by the Governor, exceeded actual revenues resulting in a deficit of $1.55
billion. Amended Petition ¶¶50, 51. During FY2016-17, the Commonwealth
borrowed $2.5 billion on a line of credit from the Treasury, using $400 million in
August of 2016 and $1.2 billion in September of 2016. Id. ¶52. On June 30, 2017,
the General Assembly enacted a $31.38 billion General Appropriations Bill for
FY2017-18. Id. ¶57. Because expenditures exceeded actual and estimated
revenues, subsequent legislation was enacted that purportedly supplied additional
revenue sources to balance the FY2017-18 budget, such as the Act of October 30,
2017, P.L. 419 (Act 42 of 2017); the Act of October 30, 2017, P.L. 672 (Act 43 of
2017); and the Act of October 30, 2017, P.L. 725 (Act 44 of 2017). Id. ¶58. See
also Act of October 30, 2017, P.L. 379 (Act 40 of 2017).25 As a result, for the
period of four months between the enactment of the General Appropriations Bill
for FY2017-18 and the enactment of the subsequent legislation in October of 2017,
expenditures exceeded actual and estimated revenues rendering the
Commonwealth’s budget out of balance in violation of, inter alia, Article 8,
Section 13 of the Pennsylvania Constitution. Id. ¶¶59, 61.
However, as indicated above, Senate Respondents have filed another
Application to Dismiss for Mootness, limiting the relief sought to dismissal of
25
It is well settled that this Court will take judicial notice of public statutes. In re Annual
Controller’s Reports for Years 1932, 1933, 1934, 1935 and 1936, 5 A.2d 201, 204 (Pa. 1939).
35
Count II of the Amended Petition rather than outright dismissal of the entire
Amended Petition as in the earlier joint motion to dismiss. Senate Respondents
note that “the relief Petitioners seek in Count II – as framed in their own Amended
PFR – is directed exclusively at the 2016 Budget and the 2017 Budget, both of
which are now legally and practically inoperative,” so that “‘there is nothing for
the Court to remedy’ and no meaningful relief is possible as to Count II[.]”
Application ¶¶20, 21.
Moreover, Senate Respondents contend, our December 2017
Memorandum Opinion denying the prior joint motion to dismiss is not controlling
because our holding therein “is necessarily limited to Count III of the Amended
[Petition],” and that “Count II and Count III cannot be analyzed coextensively, as
the two claims are substantively distinct.” Application ¶¶28, 29. 26 With respect to
any factual disputes27 as to whether or not the then effective General Operating
26
In our prior Memorandum Opinion, we explained:
[A]lthough Respondents argue the Amended Petition for Review in
its entirety is moot based upon the passage of subsequent
legislation that purports to balance the budget, they do not explain
how this legislation renders moot the claim that they allegedly
have engaged in long-term borrowing in violation of Article [8],
Section 7. While Respondents do argue that any borrowing that
has occurred does not violate the Constitution, and dispute
Petitioners’ interpretation of the constitutional provisions, such is
not a basis for concluding this claim is moot.
Brouillette, slip op. at 10. Moreover, the substantive claims raised in Count III of the Amended
Petition regarding the purported violation of Article 8, Section 7 of the Pennsylvania
Constitution are addressed on the merits infra.
27
See Brouillette, slip op. at 10 (“[T]here are factual matters in dispute, including
whether or not the General Fund Balance is currently balanced. . . . This Court realizes that
(Footnote continued on next page…)
36
Fund Budget was, in fact, balanced, Senate Respondents claim that “since the 2017
Budget no longer has any legal or practical effect, whatever factual dispute may
have arguably existed with regard to it is now of no moment,” and, “[a]ccordingly,
the December [2017] Memorandum [Opinion] does not affect the present
analysis.” Id. ¶¶34, 35. We agree.
As this Court has stated:
Under the mootness doctrine, “an actual case or
controversy must be extant at all stages of review, not
merely at the time the complaint is filed.” The existence
of a case or controversy requires “a real and not a
hypothetical legal controversy and one that affects
another in a concrete manner so as to provide a factual
predicate for reasoned adjudication. . . .” As the
Pennsylvania Supreme Court explained:
The cases presenting mootness problems involve
litigants who clearly had standing to sue at the
outset of the litigation. The problems arise from
events occurring after the lawsuit has gotten under
way—changes in the facts or in the law—which
allegedly deprive the litigant of the necessary stake
in the outcome.
Pa. R.A.P. 1972[(a)](4) permits a party to move for
dismissal for mootness during litigation. It is well settled
that the courts “do not render decisions in the abstract or
offer purely advisory opinions.” Judicial intervention “is
appropriate only where the underlying controversy is real
and concrete, rather than abstract.”
Finally, it must be noted that “[c]onstitutional
questions are not to be dealt with abstractly.” Therefore,
(continued…)
Respondents dispute facts alleged by Petitioners, but those disputes are not properly before this
Court now, and do not provide a basis for concluding that the claims are moot.”).
37
the court should be even more reluctant to decide moot
questions which raise constitutional issues. The court
“prefer[s] to apply the well-settled principles that [it]
should not decide a constitutional question unless
absolutely required to do so.”
Harris, 982 A.2d a 1035 (citations omitted). See also Mistich v. Pennsylvania
Board of Probation and Parole, 863 A.2d 116, 121 (Pa. Cmwlth. 2004)
(“‘[M]ootness, however it may have come about simply deprives us of our power
to act; there is nothing for us to remedy, even if we were disposed to do so. We are
not in the business of pronouncing that past actions which have no demonstrable
continuing effect were right or wrong.’”) (citation omitted).
The Amended Petition in the case sub judice asks this Court to enter
declaratory judgment “That the General Appropriations Bill for FY2016-[17]
violated the requirements set forth in Article [8], Section 13 . . . as the
Commonwealth ended FY2016-[17] with a $1.55 billion deficit,” and “That the
General Appropriations Bill for FY2017-[18] violates the requirements set forth in
Article [8], Section 13 . . . because, at the time of enactment, appropriations
contained therein ‘exceed[ed] the actual and estimated revenues and surplus
available in the same fiscal year[]’ by $600 million.” Amended Petition at 29.
Because the foregoing requested relief would be of no demonstrable
or appreciable effect due to the expiration of the relevant fiscal years; the
subsequent enactment of remedial legislation; the subsequent enactment of a
General Appropriations Bill for FY2018-19; the introduction of General
Appropriation Bills relating to FY2019-20; and the absence of any allegations that
the present or future General Appropriations Bills are affected in any manner by
those at issue or suffer the same purported constitutional infirmities; we conclude
38
that the constitutional claims raised in Count II of the Amended Petition should be
dismissed as moot as an appropriate exercise of judicial restraint.
Indeed, as the Pennsylvania Supreme Court has explained:
[A] legal question can become moot on appeal as a result
of an intervening change in the facts of the case. For
example in Meyer v. Strouse, [221 A.2d 191 (Pa. 1966)]
involving an action in quo warranto, the appellant
appealed from the lower court’s judgment which ordered
his ouster from the office of tax collector. Then the
appeal reached this Court, the appellant’s term of office
had already expired, and this Court held that the
intervening expiration of the appellant’s term of office
rendered the appeal moot. Id. . . .
Similarly, an issue can become moot due to an
intervening change in the applicable law. In Conti v. Pa.
Dep’t. of Labor & Industry, [175 A.2d 56 (Pa. 1961)],
this Court held an appeal to be moot where the question
involved the validity of a minimum wage order executed
by the Secretary of Labor and Industry based upon the
then existing statutory authority and thereafter, during the
pendency of the action, the General Assembly enacted
the Minimum Wage Act of 1961, P.L. 1313. . . .
See [also] Salisbury Twp. v. Sun Oil Co., [179 A.2d 195
(Pa. 1962)] (challenge to ordinance held moot on appeal
due to expiration of ordinance); N. Pa. Pwr. Co. v. Pa.
P.U.C., [5 A.2d 133 (Pa. 1939), overruled on other
grounds, York v. Pa. P.U.C., 295 A.2d 825 (Pa. 1972)]
(constitutional challenge to statute held moot on appeal
due to intervening amendment enacted by legislature)[.]
This Court is even more reluctant to decide moot
questions which raise constitutional issues. Wortex Mills
v. Textile Workers, [85 A.2d 851 (Pa. 1952)]. In Wortex
Mills this Court was asked to decide, as a constitutional
matter, whether peaceful, organizational labor union
picketing was legal; in Wortex Mills the strike which
caused the picketing had ended by the time the appeal
39
reached this Court. In declining to reach the
constitutional question, this Court observed:
“‘Constitutional questions are not to be dealt with
abstractly.’”
Id. at [857], quoting, Bandini Petroleum Co. v. Superior
Ct., 284 U.S. 8, 22 [(1931)]. The United States Supreme
Court has described such judicial reluctance as “the
exercise of judicial restraint from unnecessary decision of
constitutional issues.” Kremens v. Bartley, 431 U.S. 119,
136 [(1977)], quoting, Regional Rail Reorganization Act
Cases, 419 U.S. 102, 138 [(1974)].
The instant appeal presents a situation involving an
intervening change in the factual posture of the case as
well as an intervening change in the applicable law.
In re Gross, 382 A.2d 116, 119-20 (Pa. 1978). See also Mistich, 863 A.2d at 121
(“‘We are not in the business of pronouncing that past actions which have no
demonstrable continuing effect were right or wrong.’”) (citation omitted).
Nevertheless, Petitioners Brouillette and Lewis contend that the
instant matter should not be dismissed because the foregoing claims fall within an
exception to the mootness doctrine, i.e., that the constitutional violations are
capable of repetition, but will likely evade judicial review. See Petitioners’
Memorandum in Opposition to Application to Dismiss for Mootness at 9-18.
However, “[i]t is only in very rare cases where exceptional circumstances exist or
where matters or questions of great public importance are involved, that this court
ever decides moot questions or erects guideposts for future conduct or actions.”
Wortex Mills, 85 A.2d at 857. Moreover, in order for their constitutional claims to
fall within the foregoing exception to the mootness doctrine, Petitioners Brouillette
and Lewis must demonstrate that: “(1) the challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a
40
reasonable expectation that the same complaining party w[ill] be subjected to the
same action again.” Mistich, 863 A.2d at 121 n.6 (citing Sosna v. Iowa, 419 U.S.
393 (1975).
In light of the foregoing requirements, it must be noted that Petitioners
filed their initial petition for review in this Court over a year after the General
Assembly’s enactment of the General Appropriations Bill for FY2016-17 and two
and one-half months after the enactment of the General Appropriations Bill for
FY2017-18. Petitioners did not file the instant Amended Petition until nearly two
months later, requested and obtained an extension of time to respond to
Respondents’ preliminary objections to the Amended Petition, ultimately filing
answers more than three months hence. After we scheduled oral argument on
Respondents’ POs for this Court sitting en banc in May of 2018, Petitioners
requested and obtained a continuance of the oral argument to September of 2018.
Petitioners have never sought to expedite the consideration or
disposition of this matter throughout its pendency,28 in fact delaying its
consideration and disposition, while the intervening passage of time and enactment
of legislation rendered moot the foregoing constitutional claims. Like the Superior
Court,
We conclude, therefore, that appellants’ failure to
ask the trial court to stay the proceedings before the order
sought to be reviewed ceased to have any practical effect
rendered any subsequent challenge to the order moot. A
method to seek review of the instant claim before it
became academic existed, and appellants did not avail
See, e.g., Pa. R.A.P. 105(a) (“In the interest of expediting decision, or for other good
28
cause shown, an appellate court may . . . disregard the requirements or provisions of any of these
rules in a particular case on application of a party or on its own motion and may order
proceedings in accordance with its direction.”).
41
themselves of it. Under these circumstances, we find the
instant appeal to be moot and decline to address the
issues belatedly raised herein.
Commonwealth v. Dorler, 588 A.2d 525, 528 (Pa. Super. 1991) (citations omitted).
Further, Petitioners fail to allege or demonstrate that the stated constitutional
infirmity has otherwise occurred in the past, is apparent in the General
Appropriations Bill enacted for FY2018-19 or in the General Appropriation Bills
relating to FY2019-20, or that there is any likelihood of such a constitutional
violation occurring in the future. Under these circumstances, we are not inclined to
apply this rarely invoked exception to the mootness doctrine. Accordingly, the
Application is granted and Count II of the Amended Petition is dismissed as moot.
VI.
Finally, with respect to the Governor’s, Treasurer’s, and Auditor
General’s purported violation of Article 8, Section 7 of the Pennsylvania
Constitution as alleged in Count III, the Governor and the Treasurer demur,29 in
relevant part, on the basis that Petitioners Brouillette and Lewis fail to state a valid
claim for declaratory relief. Again, we agree.
As outlined above, Article 8, Section 7(a)(2)(ii) of the Pennsylvania
Constitution states, “The Governor, State Treasurer and Auditor General, acting
jointly, may . . . incur debt for the purpose of refunding other debt, if such
refunding debt matures within the term of the original debt.” Pa. Const. art. VIII,
§7(a)(2)(ii). In turn, Article 8, Section 7(c) provides, in pertinent part, that “[a]s
used in this section, debt shall mean the issued and outstanding obligations of the
29
Again, the Auditor General did not preliminarily object, but instead filed an answer to
the Amended Petition and a notice of non-participation in these proceedings.
42
Commonwealth and shall include obligations of its agencies or authorities to the
extent they are to be repaid from lease rentals or other charges payable directly
from revenues of the Commonwealth.” Pa. Const. art. VIII, §7(c).
The Amended Petition alleges, in relevant part: (1) “In FY2016-17,
“[the Treasurer, Governor, and Auditor General] authorized the Commonwealth to
borrow $2.5 billion on a line of credit from the State Treasury”; (2) “[the
Treasurer, Governor, and Auditor General] used these funds to address the revenue
shortfall in the Budget for FY2016-17”; (3) “For FY2016-17, because Respondents
authorized the spending set forth in [the] General Appropriations Bill, which
exceed actual and estimated revenues, the Commonwealth ended the fiscal year
with a $1.55 billion deficit”; (4) “[the Treasurer, Governor, and Auditor General]
approved a $750 million line of credit in August 2017, in part to fulfill the
obligations of the prior fiscal year”; (5) “because the $1.55 billion deficit remained
unfunded, [the Treasurer, Governor, and Auditor General] authorized ostensibly
intra-year lines of credit to illegally enable the Commonwealth to spend money
across fiscal years and impermissibly fund spending in FY2016-[17] that exceeded
actual and estimated FY016-[17] revenues”; and (6) “[the Treasurer, Governor,
and Auditor General], therefore, impermissibly authorized the Commonwealth to
incur long-term debt in violation of Article [8], Section 7 of the Pennsylvania
Constitution[.]” Id. ¶¶111-115, 118.
Petitioners argue “that [the Treasurer] has authorized the accrual of
debt that was not repaid during the fiscal year in which the debt was incurred in
direct contravention of Article [8], Section 7(a)(2)(ii),” and that “[t]hese
allegations, in conjunction with the other allegations in the [Amended Petition],
accepted as true, are sufficient to establish a violation of Article [8], Section
43
7(a)(2)(ii).” Petitioners’ Omnibus Brief in Opposition to the Preliminary
Objections at 46-47.
In Johnson v. Pennsylvania Housing Finance Agency, 309 A.2d 528
(Pa. 1973), a taxpayer filed an equity action challenging the constitutionality of the
Housing Finance Agency Law (HFAL).30 The HFAL was enacted to address a
housing shortage with respect to low and moderate income and elderly individuals
and families. To this end, the HFAL created the Housing Finance Agency
(Agency) to administer programs involving housing purchases and rentals under
which the Agency was empowered to lend funds to a mortgagor to construct or
rehabilitate housing units for sale to qualifying individuals or families. After the
unit was sold, the original mortgagor’s obligation to the Agency was released, and
the purchaser assumed the mortgage obligation to the Agency. Accordingly, the
HFAL authorized the Agency to issue loans directly to qualifying individuals.
Additionally, under the rental program, the HFAL authorized the Agency to
provide mortgages for projects supplying housing units to qualifying individuals,
which subject the mortgagors to regulation and limitation in the rents charged and
the permissible profits earned.
To finance the foregoing programs, the HFAL empowered the Agency
to issue bonds and notes to be payable out of the Agency’s revenue, including the
proceeds of the mortgages. However, the HFAL specifically provided the
Agency’s notes and bonds did not constitute a debt of the Commonwealth or any
political subdivision and that it was not a pledge of its credit or taxing power.
Moreover, the Agency was required to establish a fund equal to all the principal
30
Act of December 3, 1959, P.L. 1688, as amended, added by the Act of December 5,
1972, P.L. 1259, 35 P.S. §§1680.101-1680.603a.
44
and interest due on its outstanding bonds and notes from the succeeding calendar
year. In the event of a deficiency in the fund, or a default in the payment of
principal or interest, the Agency was required to submit a request to the Governor
who was then required to request the General Assembly for funds in the executive
budget to cover the shortfall; however, the General Assembly was not required to
approve such an appropriation. The HFAL also provided that the Commonwealth
would not impair the rights and remedies of the holders of Agency obligations.
The taxpayer alleged, inter alia, that the HFAL was “unconstitutional
in that it authorizes a debt to be incurred by or on behalf of the Commonwealth in
violation of Article [8], Section 7 of the Pennsylvania Constitution, and permits an
improper loan or pledge of the Commonwealth’s credit in contravention of Article
[8], Section 8.[31]” Johnson, 309 A.2d at 535. Specifically, the taxpayer claimed
“because the H.F.A.L. provides that the Legislature is ‘enabled to provide
appropriations sufficient to make up any . . . deficiency [in the Agency’s Capital
Reserve Fund] or otherwise to avoid any default,’ the credit of the Commonwealth
is being unconstitutionally ‘pledged or loaned.’” Id. at 536. The Supreme Court
held, “[t]hat argument is flawed in two crucial respects.” Id.
The Supreme Court explained:
Firstly, even if this be viewed as a pledge of the
Commonwealth’s credit, the pledge extends only to the
[Agency], and not to ‘any individual, company,
corporation or association . . . .’ P[a.] Const. [art.] VIII,
[§]8. This activity is not constitutionally proscribed.
This Court [has] made clear . . . that ‘(i)f credit is being
31
Pa. Const. art. VIII, §8. Article 8, Section 8 states, in relevant part, “The credit of the
Commonwealth shall not be pledged or loaned to any individual, company, corporation or
association . . . .”
45
lent to anyone, it is being lent to the (Agency).’ We have
already noted that the [Agency] is not an ‘individual,
company, corporation or association’ within the meaning
of Article [8], Sections 7 or 8.[32]
Moreover, as the permissive language of the
H.F.A.L. indicates, no mandatory obligation is imposed
upon the Legislature to appropriate any funds whatsoever
to cover an Agency default or Capital Reserve Fund
deficiency. The ‘moral makeup’ clause of the H.F.A.L.
merely ‘constitutes . . . an expression of a future intention
or expectation which has no legally binding effect.’
In view of our determination that the
Commonwealth is not a guarantor of the Agency’s
obligations, no purchaser or holder of [Agency] bonds or
notes has any basis ‘for relying to any extent on any
appropriation . . . by the present or any subsequent
Legislature, despite the amorphous legislative declaration
of intention . . .’ that appropriations may be made.
Id. (emphasis added and citations omitted).
Likewise, in the case sub judice, Petitioners’ constitutional claim is
equally flawed. The “debt” referred to in Article 8, Section 7(a)(2)(ii) is defined in
Section 7(c) as “mean[ing] the issued and outstanding obligations of the
Commonwealth . . . .” As explained supra, this “constitutional provision is to be
interpreted insofar as possible in terms of its spirit and intention,” and it “is to be
interpreted in its popular sense as understood by the people who adopted it.” Stilp,
974 A.2d at 495 (citations omitted). This is particularly true with respect to the use
of the term “debt” in Article 8, Section 7(a)(2)(ii) because, as the Supreme Court
explained long ago, “The words ‘debt’ and ‘indebtedness’ [as used in the
Constitution] * * * are not used in any technical way, but in their broad, general
32
As noted supra, “where two provisions of our Constitution relate to the same subject
matter, they are to be read in pari materia.” Jubelirer, 953 A.2d at 528 (citations omitted).
46
meaning, of all contractual obligations to pay in the future for considerations
received in the present.’” Kelley v. Earle, 190 A.140, 146 (Pa. 1937) (citation
omitted). See Black’s Law Dictionary 488 (10th ed. 2014) (defining “debt,” in
relevant part, as “[l]iability on a claim; a specific sum of money due by agreement
or otherwise,” and “[t]he aggregate of all existing claims against a person, entity,
or state[.]”).
There are absolutely no allegations in the Amended Petition that the
“lines of credit” utilizing revenue in the Commonwealth Treasury to fund the
purported budget deficiencies involve the acquisition of any “debt” in the
constitutional sense with a party outside of the Commonwealth government. As a
result, the actions of the Governor, the Treasurer, and the Auditor General with
respect to the use of the lines of credit cannot be deemed to constitute an
unconstitutional “debt” that was an “issued and outstanding obligation[] of the
Commonwealth.”33
33
See also In re Bond Issuance of Greater Enatchee Regional Events Center Public
Facilities District, 287 P.3d 567, 579-80 (Wash. 2012), wherein the Washington Supreme Court,
interpreting similar provisions in the Washington Constitution, stated the following:
Under article VIII, section 1 (state debt), “debt” is
“construed to mean borrowed money represented by bonds, notes,
or other evidences of indebtedness that are secured by the full faith
and credit of the state or are required to be repaid, directly or
indirectly, from general state revenues.” WASH. CONST. art. VIII,
§1(d) (emphasis added). Section 6 (municipal indebtedness)
contains no definition of the term “indebted.” But the definition of
“debt” contained in section 1 should be equally applied to the term
“indebtedness” as used in section 6.
The history of article VIII reveals that “debt” and
“indebtedness” were intended to mean the same thing. See
Theodore L. Stiles, The Constitution of the State and Its Effects
(Footnote continued on next page…)
47
(continued…)
Upon Public Interests, 4 WASH. HIST. Q. 281, 284 (1913) (by
adopting article VIII, the framers were concerned about the misuse
of “borrowed money” by state and local governments). Indeed, the
title of article VIII—“State, County, and Municipal
Indebtedness”—reveals that the drafters used debt and
indebtedness interchangeably. As does the section 6 definition
itself. Wash. Const. art. VIII, §1(d) (debt requires “evidences of
indebtedness”). The terms are also used interchangeably in article
VIII, section 3, which permits the state to incur “[s]pecial
indebtedness” in certain circumstances, notwithstanding the
limitation on “debt” set forth in article VIII, section 1. (Emphasis
added.) Black’s Law Dictionary likewise defines “indebtedness”
as a synonym for debt: “indebtedness” means “[s]omething owed;
a debt.” BLACK’S LAW DICTIONARY 836 (9th ed. 2009) (emphasis
added). We have accordingly concluded that “when the men who
drafted the constitution used the word ‘debt,’ they were thinking
solely in terms of borrowed money.” State ex rel. Troy v. Yelle, 36
Wash.2d 192, 197, 217 P.2d 337 (1950) (emphasis added).
This analysis is confirmed by State ex rel. Wittler v. Yelle,
65 Wash.2d 660, 668–69, 399 P.2d 319 (1965), where we
explained, “This court has many times said what Article 8 means
by the word ‘debt.’ We think that it means borrowed money; it
denotes an obligation created by the loan of money, usually
evidenced by bonds but possibly created by the issuance of paper
bearing a different label.” State debt was at issue in that case, but
our analysis was founded on a “panoramic view of our cases
affecting constitutional debt limitation.” Id. at 669, 399 P.2d 319.
In reaching the conclusion that debt means “borrowed money,
debts created by the issuance of bonds,” we relied in part on two
cases: Winston v. City of Spokane, 12 Wash. 524, 41 P. 888 (1895)
and Comfort v. City of Tacoma, 142 Wash. 249, 252 P. 929 (1927).
The Winston and Comfort cases each interpreted municipal
indebtedness squarely within the context of article VIII, section 6.
In other words, our jurisprudence defining “debt” as borrowed
money encompasses both municipal and state debt. See ROBERT F.
UTTER & HUGH D. SPITZER, THE WASHINGTON STATE
CONSTITUTION: A REFERENCE GUIDE 145 (2002) (“As with state
(Footnote continued on next page…)
48
In the absence of any allegation in this regard, this Court cannot
declare that the Governor, the Treasurer, or the Auditor General unconstitutionally
incurred debt by authorizing the transfer of Commonwealth revenue between
Commonwealth entities within the relevant fiscal years to facilitate the operation of
the Commonwealth government for those fiscal years.34 Accordingly, the POs in
(continued…)
obligations, debt [under article VIII, section 6] is defined as
borrowed money payable from taxes.”).
34
It is in this respect that Petitioners’ reliance on Commonwealth ex rel. Schnader v.
Liveright, 161 A. 697 (Pa. 1932) is misplaced. In that case, the Supreme Court interpreted the
former constitutional provision, Article 9, §4, which provided:
‘No debt shall be created by or on behalf of the State, except to
supply casual deficiencies of revenue, repel invasion, suppress
insurrection, defend the State in war, or to pay existing debt; and
the debt created to supply deficiencies in revenue shall never
exceed in the aggregate, at any one time, one million dollars[.]’
Id. at 706. At issue therein was the enactment by the General Assembly at a Special Session of
an appropriations bill, the “Talbot bill,” totaling $10,000,000.00 for relief to the poor and
unemployed during the Great Depression. The Supreme Court held, in pertinent part:,
Under the Constitution, neither the Legislature, the officers or
agents of the state, nor all combined, can create a debt or incur an
obligation for or on behalf of the state, except to the amount and in
the manner provided for in the fundamental law. This section was
intended to restrict legislative acts which incurred obligations or
permitted engagements on the credit of the state beyond revenue in
hand or anticipated through a biennium, and establishes the
principle that we must keep within current revenue and
$1,000,000.
Id. at 706 (emphasis added). See also Montgomery v. Martin, 143 A. 505, 506-07 (Pa. 1928)
(citations omitted), wherein the Supreme Court explained:
(Footnote continued on next page…)
49
the nature of a demurrer with respect to the claim in Count III that the Governor,
the Treasurer, and the Auditor General violated Article 8, Section 7(a)(ii) of the
Pennsylvania Constitution are sustained, and this claim is dismissed.35
VII.
Accordingly, based on the foregoing, the POs challenging the
standing of Petitioners Brouillette and Lewis as to Counts I, II, and III of the
Amended Petition are overruled; the POs challenging the standing of Petitioner
Christiana are sustained and he is dismissed as a party as to Count III of the
Amended Petition; the PO challenging the joinder of the Commonwealth generally
as a party is sustained and it is dismissed as a party as to Counts II and III of the
Amended Petition; the POs in the nature of a demurrer as to Counts I and III of the
(continued…)
In this country the Legislature of a state represents the sovereign
will of a sovereign people, and, in the absence of constitutional
restrictions, can authorize the state to borrow any amount of
money for any purpose it sees fit; therefore [the former] section 4
of article 9 of our Constitution must be viewed as a restrictive
measure, and the proviso with which we are particularly dealing
must be treated as part of the general provision to which it is
attached. In other words, the main purpose of the section in
question is to limit the inherent right of the state to borrow money,
and the proviso, by qualifying this restriction, becomes part of it.
35
Because Petitioners Brouillette and Lewis limit this claim to Article 8, Section 7(a)(ii),
we need not examine the mechanics of the extension of the lines of credit through the actions of
the Governor, Treasurer or Auditor General, or the Treasurer’s authority to extend them or to
maintain the revenue from which they are derived under the relevant statutory provisions.
50
Amended Petition are sustained; the Application to dismiss Count II is granted;
and the Amended Petition is dismissed.36
MICHAEL H. WOJCIK, Judge
President Judge Leavitt and Judge McCullough concur in the result only.
Judge Covey and Judge Fizzano Cannon did not participate in the decision of this
case.
36
Based on our disposition of the foregoing POs and Application, all of the remaining
POs are overruled as moot.
51
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew J. Brouillette and Rep. :
James Christiana and Benjamin :
Lewis, :
:
Petitioners :
:
v. : No. 410 M.D. 2017
:
Thomas Wolf, Governor and Joseph :
Torsella, Treasurer and Eugene :
DePasquale, Auditor General and :
The Commonwealth of Pennsylvania :
and Michael Turzai, Speaker of the :
House of Representatives and Dave :
Reed, House Majority Leader and :
Joseph B. Scarnati, III, President Pro :
Tempore of the Senate and Jake :
Corman, Senate Majority Leader and :
The Pennsylvania General Assembly, :
:
Respondents :
ORDER
AND NOW, this 2nd day of July, 2019, the preliminary objections of
the above-named Respondents challenging the standing of Petitioners Brouillette
and Lewis as to Counts I, II, and III of the Amended Petition for Review
(Amended Petition) are OVERRULED. Respondents’ preliminary objections
challenging the standing of Petitioner Christiana are SUSTAINED, and he is
DISMISSED as a party to Count III of the Amended Petition. Respondents’
preliminary objection challenging the Commonwealth of Pennsylvania generally as
a party is SUSTAINED, and it is DISMISSED as a party to Counts II and III of the
Amended Petition. The Respondents’ preliminary objections in the nature of a
demurrer as to Counts I and III of the Amended Petition are SUSTAINED; the
Respondents’ Application to Dismiss Count II based on mootness is GRANTED;
and the Amended Petition is DISMISSED.
MICHAEL H. WOJCIK, Judge