Joseph B. Scarnati, Senator and President pro tempore of the Senate of PA v. Tom Wolf, Governor of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph B. Scarnati, Senator and :
President pro tempore of the Senate of :
Pennsylvania; Jake Corman, Senator :
and Majority Leader of the Senate of :
Pennsylvania; Jay Costa, Senator and :
Minority Leader of the Senate of :
Pennsylvania, :
Petitioners :
:
v. : No. 579 M.D. 2014
: Argued: June 17, 2015
Tom Wolf, Governor of :
Pennsylvania; Randy Albright, :
Secretary of the Budget; Christopher :
Craig, Acting State Treasurer of :
Pennsylvania; Dennis M. Davin, :
Acting Secretary of Community and :
Economic Development; Cindy :
Adams Dunn, Acting Secretary of :
Conservation and Natural Resources; :
John Quigley, Acting Secretary of :
Environmental Protection; Curtis M. :
Topper, Acting Secretary of General :
Services; Kathy Manderino, Acting :
Secretary of Labor & Industry; :
James R. Joseph, Acting Adjutant :
General of Pennsylvania; Josh :
Shapiro, Chairman of the :
Pennsylvania Commission on Crime :
and Delinquency, :
Respondents :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY
JUDGE LEADBETTER FILED: December 30, 2015
In the underlying petition for review (PFR) seeking declaratory and
injunctive relief, the Senator Petitioners (Senators) challenge as unconstitutional
former Governor Thomas Corbett’s partial disapproval of the General
Appropriations Act of 2014 (GAA) and 2014 Fiscal Code Amendments (FCA).1
Presently before the court are Respondents’ preliminary objections seeking
dismissal of the PFR for lack of standing, and Senators’ application for partial
summary relief seeking judgment in their favor regarding Counts I and II of their
PFR (asserting that the line-item vetoes of both bills were unconstitutional). After
review, we deny these requests for relief.
The dispositive facts are largely undisputed.2 Both the GAA (also
referred to as HB 2328) and FCA (also referred to as HB 278) originated in the
1
Because this action was commenced before the November 2014 election, the petitioners
originally included Senators Joseph B. Scarnati, President pro tempore of the Pennsylvania
Senate, Dominic F. Pileggi, Majority Leader of the Pennsylvania Senate, and Jay Costa, Minority
Leader of the Pennsylvania Senate. Original Respondents included former Governor Corbett,
Charles Zogby, Secretary of the Budget, Robert M. McCord, State Treasurer, and the Secretaries
of various state agencies. See PFR, filed November 4, 2014. The representative parties have
been changed where appropriate to reflect the new 2015 administration and Senate leadership.
See Pa. R.A.P. 502(c); see also Rendell v. Pa. State Ethics Comm’n, 983 A.2d 708, 710 n.2 (Pa.
2009).
The GAA that Governor Corbett signed is Act No. 2014-1A [House Bill (HB) 2328,
Printer’s Number (PN) 3895]; the FCA that the Governor signed is Act No. 2014-126 (HB 278,
PN 3930). The Governor’s action in disapproving certain provisions in each Bill is otherwise
known as a “line-item veto.”
2
We preliminarily note that while the majority of the facts recited are taken from the
averments set forth in the PFR, others reflect factual assertions set forth by the parties in the
various papers filed in connection with the matters before the court. Typically, in deciding
preliminary objections, we are limited to considering only the facts set forth in the PFR as well
as all inferences reasonably deducible therefrom. See generally Corman v. Nat’l Collegiate
(Footnote continued on next page…)
Pennsylvania House of Representatives (House). On July 1, 2014, HB 2328 was
presented to the Governor for his consideration. Similarly, on July 9, 2014, HB
278 was presented to the Governor for his consideration. On that same date, the
House adjourned.3
On July 10, the Governor approved in part and disapproved in part
HB 2328 and HB 278.4 Notably, regarding HB 2328, the Governor’s disapprovals
reduced the amount appropriated to the Senate for various expenses, such as:
salaries, wages and other personnel expenses of Senate employees and expenses of
the office of the President pro tempore, which were to be disbursed at the direction
of the President pro tempore; the amount allocated to each Senate member for
actual expenses incurred for lodging, meals and other incidentals while away from
home on official business, legislative purchasing of such items as furniture,
_____________________________
(continued…)
Athletic Ass’n, 74 A.3d 1149, 1156 (Pa. Cmwlth. 2013), reargument denied, 93 A.3d 1 (Pa.
Cmwlth. 2014). In resolving an application for summary relief, we are limited to considering the
undisputed facts, which may be drawn from, inter alia, pleadings, depositions, answers to
interrogatories and admissions. See generally The Summit Sch., Inc. v. Comm., Dep’t of Educ.,
108 A.3d 192, 195-96 (Pa. Cmwlth. 2015). Because the facts relied upon in resolving the issues
before the Court are seemingly undisputed, including those asserted only in the context of a brief
(and in many instances may be confirmed with the exercise of judicial notice), in the interest of
judicial economy, we will proceed to resolve the legal issues presented without requiring the
parties to amend the PFR or engage in further needless procedural filings.
3
According to the Legislative Journal for the House on that date, the Speaker adjourned the
House until Monday, August 4, 2014, unless recalled sooner. Pa. Legislative Journal – House
(July 9, 2014) at 1234. The House’s Journal further reflects that the House reconvened on July
29, 2014. Id. (July 29, 2014) at 1235. The Senate’s Journal indicates that it recessed on July 8,
2014, until September 14, unless recalled sooner. Pa. Legislative Journal – Senate (July 8, 2014)
at 2124. The Senate apparently reconvened on September 15 as originally planned. Id.(September 15, 2014) at 2125.
4
With respect to HB 2328, the Governor disapproved of one appropriated item in its entirety
and reduced the amount of the appropriation for numerous other appropriated items. See PFR,
Appendix Tab A. The Governor completely disapproved of a number of provisions in HB 278.
Id., Appendix Tab B.
2
technology improvements, security enhancements and equipment; and the amount
available for the Caucus operations account. With respect to HB 278, the
Governor completely disapproved the following item:
Section 1724-J. Department of General Services.
From funds appropriated for rental, relocation and
municipal charges, $2,500,000 shall be transferred to the
Senate for distribution upon approval of the President pro
tempore of the Senate and Majority Leader of the Senate
and $2,500,000 shall be transferred to the House of
Representatives for distribution upon approval of the
Speaker of the House of Representatives and the
Majority Leader of the House of Representatives.
PFR, Appendix Tab B at 90-91(Section 1724-J). In two separate written messages
to the House, the Governor detailed his specific disapprovals/objections to each
bill. See PFR, Appendix Tabs C and D. The bills and objections were returned to
the House Parliamentarian.5 In addition, as Senators aver, by letters dated July 10
to the Secretary of the Commonwealth (Secretary), the Governor
delivered the signed originals of HB [278 and HB 2328],
together with copies of them, to the Secretary. He asked
the Secretary to assign act numbers to the bills, retain the
copies, and return the original bills, through the Office of
General Counsel, to the House, the body in which the
bills originated. He asked that the Secretary request the
Senate and House to return the originals of the bills to the
5
See Affidavit of Nicole Bordonaro, Executive Deputy General Counsel for Legislation in
the Office of General Counsel, attached to Respondents’ Brief in Opposition to Application for
Partial Summary Relief. According to Ms. Bordonaro: “The delivery to the House
Parliamentarian on July 10, 2014, of HB 278 and HB 2328, along with the veto messages from
the Governor, is consistent with the established procedure for the return to the House by the
Governor of bills that he has vetoed [pursuant to state constitutional authority].” Affidavit at ¶
10, Exhibit 1 to Respondents’ Brief.
3
Department of State for filing and permanent retention,
“upon the completion of the General Assembly’s
reconsideration of the line item appropriations that I have
disapproved.”
Id., ¶ 27. See also PFR, Appendix Tabs E and F. In addition, on that same day,
July 10, the Governor’s Office of the Budget issued a press release, which
announced that the Governor had signed the GAA and FCA; the press release also
generally detailed the various line item vetoes in each bill, noting the agency,
provision or program and the amount involved.6 See Exhibit 2 to Respondents’
Brief in Opposition to Application for Partial Summary Relief. The Governor’s
press release was not published in the Pennsylvania Bulletin (Bulletin). Finally,
the House did not engage in further consideration of the disapproved items as is
constitutionally permitted (see discussion below) and the General Assembly
adjourned sine die on November 12, 2014.7
Senators filed this action on November 4, 2014, challenging the
propriety and effectiveness of the line-item vetoes. Specifically, in Count I, they
contend that because the adjournment of the House prevented the Governor’s
return of the disapproved bills to the House, the Governor was constitutionally
required to give notice of his actions by public proclamation, which he failed to do,
thereby rendering his specific vetoes invalid. In Count II, Senators contend that
inasmuch as HB 278, the FCA, does not constitute a general appropriation bill, the
Governor was not constitutionally permitted to disapprove only select provisions
of that legislation. According to Senators, pursuant to constitutional restriction, the
6
Respondents note in their Brief in Opposition to Application for Partial Summary Relief
that the “press release was made publically available on the Commonwealth’s website.” Brief at
23.
7
An adjournment sine die “end[s] a deliberative assembly’s or court’s session without
setting a time to reconvene.” Black’s Law Dictionary 44 (8th ed. 2004).
4
Governor was limited to either approving or disapproving the FCA in its entirety,
thereby rendering his select vetoes invalid.8
As noted above, Respondents have challenged Senators’ standing to
bring this action, and Senators, contending that the vetoes failed to comply with
constitutional requirements, maintain that they are entitled to judgment as a matter
of law. In addition to the issue of legislative standing, we are called upon to
examine the constitutional requirements for the veto-return process when the
General Assembly has adjourned, including the manner in which the Governor
may satisfy the requirement for notice by “public proclamation,” and whether the
Governor’s authority to partially disapprove of (i.e., line-item veto) a general
appropriation bill extends to the subsequent, closely-related and dependent,
comprehensive legislation generally known as the Fiscal Code Amendments, here,
Act No. 2014-126 (HB 278).
Prior to addressing the parties’ separate requests for relief, it is helpful
to set forth the primary state constitutional provisions at the center of this dispute.
To begin, a general appropriation bill is one of the few exceptions to the oft-
discussed single-subject rule. Article III, Section 3 of the Pennsylvania
Constitution states: “No bill shall be passed containing more than one subject,
which shall be clearly expressed in its title, except a general appropriation bill or a
bill codifying the law or a part thereof.” PA. CONST. art. III, § 3. Because of the
legislative mischief that could result if this exception for a general appropriation
8
While not challenged in the application for partial summary relief, we note that in Count
III of the PFR, Senators contend that the Governor’s unconstitutional actions have resulted in an
unauthorized budgetary reserve. Accordingly, Senators request, inter alia, that Respondents be
enjoined “from complying with the Governor’s disapprovals of provisions in the General
Appropriation Act of 2014 and Fiscal Code Amendments and from complying with the
‘budgetary reserve.’” PFR at 20 [“WHEREFORE” clause, subparagraph (d)].
5
bill were not limited, the Constitution restricts the scope of a general appropriation
bill as follows: “The general appropriation bill shall embrace nothing but
appropriations for the executive, legislative and judicial departments of the
Commonwealth, for the public debt and for public schools. All other
appropriations shall be made by separate bills, each embracing but one subject.”
PA. CONST. art. III, § 11.
While the legislative power is vested in our General Assembly, see
Article II, Section 1 of our Constitution, it is well established that the Governor’s
veto power is a form of limited legislative authority. Jubelirer v. Rendell, 953
A.2d 515, 529 (Pa. 2008) (stating: “The Governor’s exercise of his veto power is
unique in that it is essentially a limited legislative power, particularly in the
appropriations context.”). The Governor’s veto power is set forth in Article IV,
Sections 15 and 16 of the Pennsylvania Constitution. Article IV, Section 15
provides:
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 reconsideration, two-thirds of all the 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 the members elected to that House it
shall be a law; but in such cases the votes of both Houses
shall be determined by yeas and nays, and the names of
the members voting for and against the bill shall be
entered on the journals of each House, respectively. 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
6
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. Section 16 provides in turn:
The Governor shall have power to disapprove of
any item or items of any bill, making appropriations of
money, embracing 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. Finally, Article III, Section 24 provides that:
No money shall be paid out of the treasury, except
on appropriations made by law and on warrant issued by
the proper officers; but cash refunds of taxes, licenses,
fees and other charges paid or collected, but not legally
due, may be paid, as provided by law, without
appropriation from the fund into which they were paid on
warrant of the proper officer.
PA. CONST. art. III, § 24.
Turning to the issue of Senators’ standing to bring this action,
Respondents first contend in their preliminary objections that Senators have failed
to aver sufficient harm to their interests as legislators to confer legislative standing
in this matter. In Pennsylvania, standing is “prudential in nature,” and as a
preliminary threshold, a party must first establish his or her right to maintain the
action. Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009). If a party is
not sufficiently aggrieved by the challenged action, he or she lacks standing to seek
a judicial resolution of the challenge. Id.7
An individual can demonstrate that he has been
aggrieved if he can establish that he has a substantial,
direct and immediate interest in the outcome of the
litigation. A party has a substantial interest in the
outcome of litigation if his interest surpasses that of all
citizens in procuring obedience to the law. The interest is
direct if there is a causal connection between the asserted
violation and the harm complained of; it is immediate if
that causal connection is not remote or speculative.
Id. (citations and quotations omitted).
In their PFR, Senators note that their interest in this action stems from,
inter alia: (1) Senator Pileggi’s (now Senator Corman’s) responsibility as Majority
leader “for ensuring that the Senate’s consideration of legislation is carried out in
accordance with the Constitution and that, likewise, the enactment of legislation –
insofar as it relates to the Senate and its powers, duties, and responsibilities – is
carried out in accordance with the Constitution.” PFR, ¶ 51; and (2) their interest
in the Senate’s final vote for adoption of the GAA and FCA bills at issue.9 In
addition, while not asserted in the PFR, Senators also point out in their brief in
response to the preliminary objections that the Governor’s vetoes reduced and
eliminated funding for leadership accounts that they exclusively control, thereby
directly impacting a matter of responsibility and concern uniquely personal to them
as parties. They further contend in their responsive brief that an unconstitutional
veto serves to essentially nullify otherwise valid legislative votes.
9
While not sufficient to establish legislative standing, Senators also allege the following
interests: (1) their individual oaths of office to “support, obey and defend . . . the Constitution of
this Commonwealth” PFR, ¶ 49 (quoting P A. CONST. art. VI, § 3); (2) Senator Scarnati’s
responsibility, as President pro tempore, for presiding over the Senate and, in the absence of the
President of the Senate, signing all bills passed by the General Assembly; (3) the present
uncertainty regarding whether the Governor’s disapprovals of provisions in the GAA and FCA
are effective and whether the budgetary reserve is effective despite enacted appropriations; and
(4) their interest in having money paid out of the State Treasury in accordance with the law.
8
Both this court and our Supreme Court have undertaken a thorough
examination of legislative standing on several occasions; these discussions provide
helpful guidance here. In the first case, Wilt v. Beal, 363 A.2d 876 (Pa. Cmwlth.
1976), often described as the seminal case on legislative standing, William Wilt, a
former member of our state House of Representatives, sought to enjoin the
Commonwealth’s Secretary of Public Welfare and Treasurer from moving forward
with administrative plans to use and operate a completed facility as a mental health
care facility. Wilt apparently averred in his petition that the purpose of the bill for
which he had voted was frustrated by these plans, thereby depriving him of the
effectiveness of his vote. This court examined state and federal cases addressing
the nature of both taxpayer and legislative standing and summarized its
conclusions as follows:
What emerges from this review . . . is the principle
that legislators, as legislators, are granted standing to
challenge executive actions when specific powers unique
to their functions under the Constitution are diminished
or interfered with. Once, however, votes which they are
entitled to make have been cast and duly counted, their
interest as legislators ceases. Some other nexus must
then be found to challenge the allegedly unlawful action.
We find this distinction to be sound for it is clear that
certain additional duties are placed upon members of the
legislative branch which find no counterpart in the duties
placed upon the citizens the legislators represent. These
duties have their origin in the Constitution and in that
sense create constitutional powers to enforce those
duties. Such powers are in addition to what we normally
speak of as the constitutional rights enjoyed by all
citizens. To give but one familiar example, under the
Pennsylvania Constitution, members of the Senate have
the duty to approve or disapprove certain appointments
made by the Governor. Interference with the
performance of this duty would be an injury to members
of the Senate sufficient to give each senator standing to
9
protect the injury to his or her ‘constitutional right’ to
vote for or against confirmation of an executive
appointee.
Id. at 881 (footnotes omitted). Based upon these principles, this court concluded
that Wilt lacked standing as a legislator to pursue his action, stating:
[O]nce Wilt’s vote had been duly counted and the bill
signed into law, his connection with the transaction as a
legislator was at an end. Therefore, he retains no
personal stake, as required by William Penn [Parking
Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa.
1975)] in the outcome of his vote which is different from
the stake each citizen has in seeing the law observed.
Id. (emphasis omitted).
Years later, in Fumo, 972 A.2d 487, our Supreme Court considered
legislative standing and the nature of the interest required for capacity to sue.
There, various members of both houses of our General Assembly sought review of
a local agency decision [City of Philadelphia Department of Commerce
(Department)] authorizing the issuance of a license to construct a casino upon
submerged lands in the Delaware River. The petitioners contended on appeal that
the General Assembly had the sole authority to convey or license the use of the
submerged lands at the location at issue. In support of their standing to sue, the
petitioners alleged, inter alia, that they were aggrieved by the Department’s action
because it “substantially conflict[ed] with their exclusive authority to prescribe the
terms and conditions by which submerged lands abutting their legislative districts
should be conveyed for private development.” Id. at 496. The Court summarized
the principles pertaining to legislative standing as follows:
Legislators and council members have been permitted to
bring actions based upon their special status where there
10
was a discernible and palpable infringement on their
authority as legislators. The standing of a legislator [ ] to
bring a legal challenge has been recognized in limited
instances in order to permit the legislator to seek redress
for any injury the legislator [ ] claims to have suffered in
his official capacity . . . . Legislative standing has been
recognized in the context of actions brought to protect a
legislator’s right to vote on legislation or a
councilmember’s viable authority to approve municipal
action. Legislative standing also has been recognized in
actions alleging a diminution or deprivation of the
legislator’s or council member’s power or authority. At
the same time, however, legislative standing has not been
recognized in actions seeking redress for a general
grievance about the correctness of governmental conduct.
Id. at 501. The Court concluded that the petitioners’ allegations of an alleged
usurpation of their authority as members of the General Assembly and denial of
their ability to vote and otherwise consider the licensing at issue set forth claims
that the legislators had standing to pursue. Id. at 502. On the other hand,
regarding the petitioners’ claim that the Department abused its discretion in
granting the license, the Court found a lack of standing, noting that a legislator has
no legal interest in “seeking redress for a general grievance about the correctness
of governmental conduct,” and that their claim did not demonstrate any
interference with or diminution in their authority as legislators. Id. at 501-02. See
also Corman v. National Collegiate Athletic Ass’n, 74 A.3d 1149 (Pa. Cmwlth.
2013), reargument denied, 93 A.3d 1 (Pa. Cmwlth. 2014).
Finally, in Zemprelli v. Daniels, 436 A.2d 1165 (Pa. 1981), five state
senators who voted against the confirmation of a nominee to the State Tax
Equalization Board filed a petition for review in the nature of quo warranto
seeking to remove the confirmed nominee. In their petition, the senators
challenged the determination that the nomination had been confirmed by majority
11
vote of the senate, contending that the Senate President had improperly computed
the vote based on the number of senators currently in office (48), rather than
elected to office (50), thereby diluting their votes and their effectiveness as
legislators. Assuming that this logic could be correct, we agreed that it posed a
possible cognizable injury to the senators in their legislative capacity. In doing so,
we rejected the argument that once the senators had the opportunity to vote on the
nomination, their special interest in the matter ceased, noting that such argument
might be appropriate were the voting process itself not at issue. Id. at 1167.
Here, we conclude that Senators have alleged a sufficient legislative
interest to demonstrate their standing to pursue this action. Unlike in Wilt, and
even Fumo to a limited extent, Senators are not challenging whether subsequent
governmental action conformed to established law, but whether the Governor, in
carrying out his corresponding duties in the joint legislative process, satisfied
constitutional requirements. To the extent the Governor’s actions are not
constitutionally compliant, the proper legislative process as a whole, and the
General Assembly’s role in that process, might have been thwarted, resulting in an
improper nullification of their votes for the bills at issue and a diminution of their
role in the enactment process. As in Zemprelli, a process involving the legislature
is directly at issue.
Moreover, there can be no dispute that an unconstitutional veto of
appropriated sums under Senators’ control, which impacts the manner in which
their official business is conducted, provides an interest that surpasses that of the
general public in requiring that “the Government be administered according to the
law.” Fumo, 972 A.2d at 500 [discussing and quoting Common Cause of Pa. v.
Commonwealth, 558 F.3d 249, 259 (3d Cir. 2009) (internal quotation omitted)].
12
Rather, such action directly interferes with their legislative authority, duties and
interests. With respect to the latter conclusion, we reject Respondents’ contention
that, “the appropriations at issue are made to the Senate, not to individual Senators;
and so any right of action belongs to the Senate as a body, not to the Senators.”
Respondents’ Reply Brief in Support of Preliminary Objections at 2. Respondents
have not cited to any authority to support this proposition and our own research has
not produced supportive authority. Indeed, the cases discussed above support a
contrary conclusion; individual legislators have standing to pursue matters that
affect their interests as members of the General Assembly. Accordingly, the
Respondents’ preliminary objections are denied.10
Turning to the application for partial summary relief,11 Senators,
focusing on the procedure for a veto-return under Article IV, Section 15, first
contend that because the House had adjourned on July 9, 2014, the Governor was
prevented from returning the bills to the House, where they had originated, and
was instead required to file his objections with the Secretary of the Commonwealth
and give notice thereof by public proclamation within thirty days of the House’s
adjournment.12 Senators maintain that a temporary adjournment precludes the
10
Because we conclude that legislative standing has been established, it is not necessary to
consider whether Senators can bring this action in some other capacity.
11
Pursuant to Rule of Appellate Procedure 1532(b): “At any time after the filing of a
petition for review in an appellate or original jurisdiction matter the court may on application
enter judgment if the right of the applicant thereto is clear.” Pa. R.A.P. 1532(b). Summary relief
is appropriate where no material issues of fact are in dispute and the moving party’s right to
judgment is clear. Jubelirer v. Rendell, 953 A.2d 515, 521 (Pa. 2008).
12
Article IV, Section 15 provides in this regard:
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
(Footnote continued on next page…)
13
effective return of the bill with objections; they support their position with
decisional authority from other jurisdictions considering the meaning of the term
“adjournment” as it appears in different constitutional provisions providing for an
executive’s return of a bill with objections.13 These cases not only examine the
type of adjournment which prevents the return of a bill (e.g., temporary vs. final or
sine die) but also consider when service of the return on a clerk or other legislative
officer is acceptable to effectuate a veto-return. See, e.g., Okanogan Indian Tribe
v. United States, 279 U.S. 655 (1929). According to Senators, because the
Governor failed to give notice of his return by public proclamation, each bill in its
entirety became law. Specifically, Senators note that the Governor failed to give
notice of his actions in the Bulletin as is required by Sections 724 and 725 of Title
45 of the Consolidated Statutes, 45 Pa. C.S. §§ 724, 725 (requiring all
proclamations and executive orders of the Governor to be published in the
Bulletin).14
Respondents contend on the other hand, that the House’s temporary
adjournment during its session did not prevent the Governor from returning the
vetoed bills. They note that Article II, Section 4 of our Constitution states: “The
_____________________________
(continued…)
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.
[Emphasis added].
13
The provisions included in the survey varied in language.
14
Section 19.363 of Title 101 of the Pennsylvania Code, 101 Pa. Code § 19.363 (titled
“Proclamation of vetoes subsequent to adjournment”), applicable to the Legislative Reference
Bureau and part of the Legislative Drafting Manual, sets forth a form or format for a
proclamation announcing a gubernatorial veto of a bill. The form sets forth a document titled,
“PROCLAMATION,” and as written, indicates that it is authored “under the [Governor’s] hand
and ‘Great Seal . . . .’” Id.14
General Assembly shall be a continuing body during the term for which its
Representatives are elected.” PA. CONST. art. II, § 4. In support of their position
that a temporary adjournment by the House does not prevent the return of a bill
with objections, Respondents also undertake an analysis of judicial opinions from
various jurisdictions considering the meaning of the term “adjournment” in a
similar constitutional context. According to Respondents, the majority of
jurisdictions considering the issue have concluded that a temporary adjournment of
short duration does not preclude an executive from returning a bill to the
originating body with notice of his or her veto. Respondents also maintain that this
court’s en banc decision in Jubelirer v. Pennsylvania Department of State, 859
A.2d 874 (Pa. Cmwlth. 2004), aff’d, 871 A.2d 789 (Pa. 2005), supports this view.
Respondents also posit that the Governor’s return of the subject bills
was consistent with accepted past practice: “In Pennsylvania, the long-standing
practice of the Governor has been to return bills through an agent and to return
them not to the House or Senate in open session, but to the Parliamentarian or
Clerk of the house in which the bill had originated. (Bordonaro Aff. ¶ 10).”
Respondents’ Brief in Opposition to Application for Partial Summary Relief at
20.15 According to Respondents, a representative of the Governor delivered the
15
Respondents maintain that, to the extent that Senators dispute that this is the accepted
practice by both houses, a material issue of fact exists, precluding summary relief.
Regarding the House parliamentarian, Section 1 of the Act of May 28, 1931, P.L. 200,
provides:
The Speaker of the House of Representatives shall, at the
commencement of each Session of the General Assembly, appoint
a parliamentarian to advise the Speaker on parliamentary questions
and legislative procedure, and to perform such other duties in
connection with the house desk and house transcribing room as the
Speaker and Chief Clerk of the house shall direct. . . . Between
legislative sessions, the parliamentarian shall perform such duties
(Footnote continued on next page…)
15
two bills, together with the Governor’s objections, to the House Parliamentarian;
the “Parliamentarian’s office was open for business during the intra-session
adjournment of the House that had begun one day earlier and that would conclude
19 days later; the House’s temporary, three-week adjournment did not prevent the
Governor’s agent from returning the bills to the Parliamentarian as agent for the
House.” Id. at 20-21.
Finally, notwithstanding the above arguments, Respondents contend
that if public notice was required, the Governor’s press release and the subsequent
notice of his veto in the Bulletin satisfied the requirements of Article IV, Section
15.16 Respondents maintain that other than mandating notice by public
proclamation, the Constitution does not specify the form or substance of the notice.
Noting the accepted legal definition of “proclamation,” “a formal public
announcement that is made by the government or a government official,” id. at 23
(citation omitted) and, that, the purpose of the proclamation is to provide the public
with knowledge regarding the status of pending legislation, Respondents argue that
the press release satisfied the constitutional requirement for public notice – it was a
_____________________________
(continued…)
for the Speaker, any committee of the house, or any legislative
commission, as the Speaker of the house shall prescribe.
46 P.S. § 36.
16
In addition to the press release, Respondents have attached to their brief as Exhibit 3
photocopies of the Bulletin from Saturday, August 2, 2014, 44 Pa. B. 5176 (titled, “THE
GENERAL ASSEMBLY [-] Recent Actions during the 2014 Regular Session of the General
Assembly”). This publication contains a list noting recent legislative action by the General
Assembly. The list is in column format and details, inter alia, the date of action, bill number,
effective date and subject matter, including the following items: (1) “Jul 10 10 HB0278 . . .
Immediately [with exceptions] Fiscal Code—omnibus amendments-line item veto;” and (2) “Jul
10 HB2328 . . . Immediately General Appropriation Act of 2014—enactment—line item veto.”
Id.
16
formal public announcement that detailed the Governor’s actions regarding the two
bills at issue.
The various decisions cited by the parties demonstrate that there is
clearly a split of authority among the different jurisdictions regarding whether a
temporary adjournment by both houses of the legislature prevents the return of a
vetoed bill to the house where the bill originated. While our decision in Jubelirer
would appear to settle the legal issue of the nature of adjournment, unresolved
issues of fact preclude the Court from determining whether a Constitutionally-
required adjournment occurred so as to prevent the Governor from returning his
objections to the House.
As we noted in Jubelirer, “the fundamental rule of construction which
guides us [in interpreting our Constitution is that the language] controls and must
be interpreted in its popular sense, as understood by the people when they voted on
its adoption.” 859 A.2d at 876 (quotations and citation omitted). Moreover, the
general rules of statutory construction aid our interpretation of constitutional
provisions. Id. It is important to note that the Article IV, Section 15 adjournment,
which will preclude the return of a bill with objections, is the adjournment of the
General Assembly, not the adjournment of the house where the bill originated. See
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.”) (Emphasis added). The precise use of the term “General
Assembly” in Article IV, Section 15 cannot be ignored and must be given effect
when construing the provision. See Section 1921(a) of the Statutory Construction
Act of 1972, 1 Pa. C.S. § 1921(a) (stating rule of statutory construction that every
statute “shall be construed, if possible, to give effect to all its provisions”), and (b)
17
(stating rule of statutory construction that, “[w]hen the words of the statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.”). See also Wright v. United States, 302 U.S. 583,
587-88 (1938) (discussing federal constitutional provision providing for
presidential return of bill with objections and noting that the word “Congress” is
not used to describe a single House). If the adjournment of only the house where
the bill originated was sufficient to prevent the Governor from effectuating a return
of the bill, there would have been no need to use the term “General Assembly” in
setting forth the procedure to effectuate a valid return; to construe the provision
differently renders the reference to the General Assembly completely
meaningless.17
As noted, the General Assembly is a continuing body during the term
for which its representatives are elected. The term begins on “December 1 of each
even-numbered year and ends at the expiration of November 30 of the next even-
numbered year.” 101 Pa. Code § 7.21(a). Pursuant to Article II, Section 14:
“Neither House shall, without the consent of the other, adjourn for more than three
days, nor to any other place than that in which the two Houses shall be sitting.” P A.
CONST. art. II, § 14. An adjournment for more than three days “is accomplished by
the adoption of a concurrent resolution.[18] Where the time for reconvening is
17
This point bears noting because both parties focus on the import of the temporary
adjournment of the House, not the General Assembly.
18
While the legislative journal for each chamber reflects that both houses were adjourned
for a period of time exceeding three days, it is not clear whether such was consensual and by
concurrent resolution. See PA. CONST. art. II, § 14; 101 Pa. Code § 7.24(a). As our Supreme
Court noted in Frame v. Sutherland, 327 A.2d 623, 626 (Pa. 1974), the constitutional scheme is
“predicated on the assumption that adjournment may not be a unilateral act on the part of one of
the houses of the General Assembly.” The exception to the consent requirement for
adjournments lasting less than four days provides flexibility in the legislative calendar and
(Footnote continued on next page…)
18
subsequent to the beginning of the following week, the adjournment is generally
referred to as a recess and sometimes made subject to reconvening at an earlier
date at the call of the presiding officer of each house.” 101 Pa. Code § 7.24(a)
(footnote added).19 “When the General Assembly finally adjourns any regular or
special session, such adjournment is referred to as an adjournment [sine die] and is
accomplished by a concurrent resolution.” Id., § 7.24(b). All matters which are
pending before the General Assembly upon its adjournment sine die or on
expiration of its first regular session maintain their status and are pending before
the General Assembly in its second regular session. Id., § 7.21(b).
In Jubelirer, 859 A.2d 874, this court addressed whether the
Governor properly vetoed a bill following the General Assembly’s adjournment
over the Christmas and New Year holidays. There, our recitation of the facts
indicated that the House Bill was presented to the Governor on December 22 and
that the General Assembly adjourned on December 23, intending to reconvene on
January 6 of the following year. On December 31, the Governor attempted to
return the bill with his objections to the House but its offices were closed. The
Governor then filed the bill and his objections with the Secretary and notice of his
veto was published in the Pennsylvania Bulletin. We summarized the veto-return
procedure as follows:
_____________________________
(continued…)
“reflects the perception that adjournments of less than four days present a minimal threat to each
house’s interest in the consideration by the other of its bills.” Id. at 627.
19
In general, the Senate convenes its weekly sessions on Monday; if a motion to adjourn
does not contain a reconvening time, the Senate reconvenes the next day at 10:00 a.m. 101 Pa.
Code § 7.23(a). “The House convenes on the first legislative day of the week at 1 p.m. and on
other days at the discretion of the House, and adjourns not latter [sic] than 11 p.m., unless
otherwise ordered by a majority of members elected to the House.” Id., § 7.23(b).
19
Construing the language of Article IV, Section 15
in its popular sense, we find the language to be clear and
unambiguous. If the Governor disapproves a bill passed
by the General Assembly, the Governor has ten days to
return the bill to the originating chamber with his
objections. However, if the General Assembly has
adjourned and the adjournment prevents the Governor
from returning the bill within ten days, then the Governor
may effectuate a veto by filing the bill and objections
with the office of the Secretary of the Commonwealth
and by giving public notice within thirty days of the
adjournment.
859 A.2d at 876 (emphasis added). We then concluded that the Governor’s veto of
the bill at issue was effective, rejecting the argument that only a final adjournment
would preclude the Governor’s return of a bill with objections. We stated:
We reject the argument that the word “adjourn” in Article
IV, Section 15 is ambiguous and susceptible of more than
one reasonable meaning. . . . [Senators] argue that the
word “adjourn” in Article IV, Section 15 could
reasonably refer only to an adjournment sine die, which
is final adjournment by both chambers of the General
Assembly without stating a date of return. However, we
cannot conclude that the popular sense of the unmodified
word “adjourn” in Article IV, Section 15 is a special type
of adjournment known by the Latin designation sine die.
Indeed, the framers knew the distinction between an
ordinary adjournment and an adjournment sine die and
used the Latin designation when they meant a final
adjournment. See Pa. Constit. art. IV, § 8(b) (relating to
nominations for vacancies made by Governor after an
adjournment sine die).
859 A.2d at 877 n.2.
Thus, while Jubelirer commands the conclusion that a temporary,
mid-session adjournment of the General Assembly can prevent the return of a bill
with objections to the house where the bill originated, whether the General
20
Assembly had adjourned when former Governor Corbett returned his objections
cannot be determined on this record. 20 As noted above, while both houses had
adjourned for more than three days, the Legislative Journals fail to reflect whether
such was done with the consent of the other house or by joint resolution.
Accordingly, at this stage of the proceedings, we cannot hold as a matter of law
that an adjournment by the General Assembly required the Governor to give notice
of his actions by public proclamation.21
Assuming arguendo that notice by public proclamation was required,
we turn to the issue of whether the Governor’s press release was sufficient to
satisfy the constitutional requirement. In resolving the question, we are guided by
two basic principles. First, when called upon to judge the constitutionality of
executive acts, we apply the same judicial restraint and presumptions that are
employed when facing a constitutional challenge to legislative acts: the acts of the
Governor, in whom the supreme executive power is vested, see Article IV, Section
1 of the Pennsylvania Constitution, are presumed to be constitutional unless they
are clearly shown to be otherwise. Stroup v. Kapleau, 313 A.2d 237, 240 (Pa.
1973). Second, it is the role of the judiciary to interpret the Constitution and we
are not bound “to the legislative judgment concerning the proper interpretation of
constitutional terms.” Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Bd. of
20
Senators maintain that Jubelirer did not decide the issue here, that is, “can a bill be
returned to an adjourned house at all?” Senators’ Reply Brief at 3. The issue of whether the
alleged long standing practice of returning bills to the Parliamentarian suggests that adjournment
precludes return of the vetoed bill only when the office of the Parliamentarian is closed
implicates facts averred but not of record and so we will not address it. We note that the issue
does not appear to have been raised in Jubelirer.
21
Indeed, where the General Assembly has not adjourned but the house where a bill
originated has adjourned for three days or less, we discern no constitutional bar to returning the
bill to an agent of the chambers during the temporary, unilateral adjournment.
21
Assessment Appeals, 44 A.3d 3, 7 (Pa. 2012) (internal quotation and citation
omitted). The General Assembly cannot alter the Constitution by “ʻpurporting to
define its terms in a manner inconsistent with judicial construction; interpretation
of the Constitution is the province of the courts.’” Id. [quoting Pottstown Sch. Dist.
v. Hill Sch., 786 A.2d 312, 319 (Pa. Cmwlth. 2001 (en banc)].
The requirement for notice by public proclamation first appeared in
the Constitution of 1874. The parties have not provided any history regarding this
addition to the Constitution (nor has our own research been fruitful),22 but, the
requirement as originally adopted remains the same today. As noted by
Respondents, other than mandating notice by public proclamation, the Constitution
does not specify the form or substance of the notice.23 To define the requirement,
we must construe the term as it was commonly understood when adopted.24
Jubelirer, 859 A.2d at 876. In common parlance, a “proclamation” is “an official
formal public announcement,”25 or “a public or official announcement dealing with
22
Prior thereto, the Constitution of 1838, provided in pertinent part: “If any bill shall not be
returned by the Governor within ten days (Sundays excepted), after it shall have been presented
to him, it 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 sent back within three
days after their next meeting.” PA. CONST. (1838), art. I, § XXIII.
23
See also In re City of Pittsburgh, 66 A. 348 (Pa. 1907) (noting that Article III, Section 25
of our Constitution is silent regarding the manner in which the Governor, by proclamation,
convenes a special session of the General Assembly and concluding that these are details for the
Governor alone).
24
While we are required to construe the language of the constitution “in its popular sense, as
understood by the people when they voted on its adoption,” Jubelirer, 859 A.2d at 876, we
cannot ignore the customs and norms of present society, including the advancements in
communication methods.
25
http://www.merriam-webster.com/dictionary/proclamation.
22
a matter of great importance.”26 Thus, as commonly understood, a proclamation
serves to give the public notice of governmental matters of import. See also
Lapeyre v. United States, 84 U.S. 191, 201 (1872) (Justice Hunt dissenting) (noting
that an essential element of the character of a proclamation is that “it should be
openly and publicly made known.”).
In Dickinson, Auditor v. Page, Commissioner, 179 S.W. 1004 (Ark.
1915), the Supreme Court of Arkansas examined various methods of proclaiming a
matter of legal import, noting such has been accomplished by publication in
newspapers (Presidential proclamation), oral announcement (election results) and
posting a notice on the door of council chambers (mayor convening special
session). After noting the various means of public announcement, the court stated:
No particular form of proclamation is prescribed or
indicated by the Constitution [of Arkansas], but only that
“notice thereof be given by public proclamation,” and
from the authorities it appears that a proclamation is
public when made and sufficient if it has such publicity,
or accomplishes the end to be attained.
Id. at 1006-07.27 See also Lapeyre, 84 U.S. at 198-99 (discussing publication and
effective date of Presidential proclamation, noting: “[T]he established usage is to
publish proclamations with the laws and resolutions of Congress currently in the
newspapers, and in the same volume with those laws and resolutions at the end of
26
http://www.oxforddictionaries.com/definition/english/proclamation. See also Dickinson,
Auditor v. Page, Commissioner, 179 S.W. 1004 (Ark. 1915) [providing similar definition
sourced from the New Standard Dictionary (Funk & Wagnalls)].
27
In Dickinson, the Court was considering a constitutional provision for the return of a
vetoed bill similar to the one at issue here. While the Court’s discussion of general principles
pertaining to public proclamation are helpful, we disagree with the Court’s ultimate conclusion
that the Governor’s action in writing “vetoed and disapproved” across the bill and filing it in the
office of the Secretary satisfied the requirement for notice by public proclamation.
23
the session. . . . [But] [a]s no mode of publication is prescribed . . . we do not see
why applying the seal and depositing the instrument in the office of the Secretary .
. . may not be held to have the same effect.” In such case, “[i]t is there amidst the
archives of the nation. . . . All persons desiring it can have access, and procure
authenticated copies of both.”).28
While there is little judicial authority in Pennsylvania discussing the
constitutional requirement for public proclamation, we note that in 1915, the
Attorney General rendered an opinion to the Governor regarding whether he could
recall the disapproval of a bill that had been filed with the Secretary. In discussing
the requirement of Article IV, Section 15, including notice of disapproval by
public proclamation, the Attorney General opined:
[The constitutional requirement for public
proclamation] has been consistently followed since the
adoption of the Constitution, and it has been the universal
custom for the Governor to make public proclamation of
all bills vetoed after the legislature has adjourned by
reading, either in person or by a properly accredited
representative, on the thirtieth day after the adjournment,
in the rotunda of the Capitol, a proclamation substantially
in the following form, which appears in all the Pamphlet
Laws:
28
In Lapeyre, the United States Supreme Court also looked at the historical English law
regarding proclamations, observing that although there was a lack of express authority, “it should
seem that if the proclamation be under the great seal it need not be made by any particular class
of individuals or in any particular manner or place, and that it would suffice if it were made by
anyone under the King’s authority in the market-place or public street of each large town. It
always appears in the gazette.” Id. at 195-96. Speaking in 1872, the Court in Lapeyre observed
that publishing via out-cry in the streets or market was no longer in use in England and had not
been adopted in the United States. Id. at 198.
24
A Proclamation
“I (name of Governor), Governor of the
Commonwealth of Pennsylvania, have caused this
proclamation to issue, and in compliance with the
provision of Article IV, Section 15, of the
Constitution, do hereby give notice that I have filed
in the office of the Secretary of the Commonwealth,
with my objections thereto, the following bills
passed by both Houses of the General Assembly,
viz., Senate Bill No. --, etc., etc.”
Op. of Attorney General of Pa.: Recall of Bills Disapproved by Governor, 24 Pa.
D. 544 (1915). Casual commentary in our case law also indicates that executive
proclamations appeared in the Pamphlet Laws. See generally Commonwealth ex.
rel. Schnader v. Liveright, 161 A. 697, 702 (Pa. 1932) (providing citation to
Governor’s proclamation in Pamphlet Laws29).
Presumably, by mandating that all proclamations and executive orders
of the Governor (with exceptions not relevant here) “shall be published in the
[Bulletin],” see 45 Pa. C.S. § 725(a), our General Assembly has defined a standard
for public proclamation.30 Indeed, there does not appear to be any dispute that
executive proclamations are routinely published in the Bulletin, following a format
similar to that provided in 101 Pa. Code § 101.363. However, the Bulletin did not
29
The official law of the Commonwealth is contained in the Laws of Pennsylvania,
commonly referred to as the “pamphlet laws,” which in bound form are known as the “Pamphlet
Laws.” 101 Pa. Code § 11.5. The Laws of Pennsylvania, or Pamphlet Laws, contain, inter alia,
laws, appropriation acts, joint resolutions, vetoes, proclamations and other documents required
by law. Id.30
All documents required to be published in the Pennsylvania Code in addition to those
documents specifically required to be published in the Bulletin, such as gubernatorial
proclamations, first appear in the Bulletin, designated by statute as an “official gazette.” 45 Pa.
C.S. §§ 724, 725. The Bulletin is published “at least once each week and shall contain all
previously unpublished documents duly filed prior to the closing date and hour of the issue . . . .”
45 Pa. C.S. § 724(b).
25
exist in 1874,31 and public proclamation via publication in the Bulletin cannot
legislatively be grafted onto the constitutional provision, thereby limiting the
means of satisfying the requirement. Limiting or defining the drafters’ intent is not
the General Assembly’s prerogative.
Considering that the purpose of a public proclamation is to provide an
official announcement to the public of matters of governmental import and that the
method used should be sufficient to achieve broad publicity, we conclude that a
public press release issued by the Office of the Budget, an administrative agency
within the Governor’s office,32 and available on the Commonwealth’s website,
satisfies the Constitutional requirement for notice by public proclamation. Indeed,
the timely-issued press release generated by the Governor’s offices provides more
information than that which would be included in the generic form available in the
Pennsylvania Code, and was certainly designed to reach more citizens than an
announcement in the Capitol rotunda. More formality and a document under seal,
as advocated by Senators, are not constitutionally required. By failing to provide
for a form and manner of notice, the drafters left it to the discretion of the
Governor to decide on the form of public proclamation best suited to the moment.33
Moreover, it bears noting that while the meaning of “public proclamation” has not
changed with the passage of time, the means of reaching the citizenry has, and we
31
See “About the Pennsylvania Code” (providing history and general information about the
Pennsylvania Code and Bulletin) at http://www.pacode.com/about/preface.
32
See Section 609 of The Administrative Code, Act of April 9, 1929, P.L. 177, added by the
Act of September 27, 1978, P.L. 775, 71 P.S. § 229.
33
Compare Article XI, Section 1 of our Constitution (providing that proposed Constitutional
amendments, after the requisite agreement by each House, “shall be published three months
before the next general election, in at least two newspapers in every county in which such
newspapers shall be published . . . .”).
26
cannot ignore that it is common practice for today’s citizens to seek their news
online. Accordingly, we conclude that the Governor provided the constitutionally-
required notice of his objections.34
Finally, we turn to whether the FCA constitutes a “bill, making
appropriations of money” for purposes of Article IV, Section 16. As noted, unlike
bills providing for general legislation, which the Governor must approve or reject
in toto, Section 16 permits the Governor to reject or veto individual items of
appropriation, thereby only disapproving a bill in part. Senators maintain that the
veto power provided by Section 16 is limited to bills authorizing the release of
money from the treasury. For support, they cite Article III, Section 24 (providing
that no “money shall be paid out of the treasury except on appropriations made by
law”), Washington v. Department of Public Welfare, 71 A.3d 1070, 1085 (Pa.
Cmwlth.), aff’d, 76 A.3d 536 (Pa. 2013) (noting that Article III, Section 24 gives
the legislature “the exclusive power to authorize the release of money from the
state treasury”), and Common Cause of Pa. v. Commonwealth, 668 A.2d 190, 205
(Pa. Cmwlth. 1995), aff’d, 677 A.2d 1206 (Pa. 1996) (defining an “appropriation
bill” as a “measure before a legislative body authorizing the expenditure of public
moneys and stipulating the amount, manner, and purpose of the various items of
expenditure. . . .”). According to Senators, the FCA does not authorize the release
of money from the public treasury. Rather, “it directs the conduct of agencies in
using money that has already been appropriated by other enactments, such as the
[GAA] of 2014.” Petitioners’ Brief in Support of Application for Partial Summary
34
We note as an interesting aside, pursuant to 45 Pa. C.S. § 728, “no press release, speech,
or other unofficial comments or news material shall be published in the code, the permanent
supplements thereto, or in the bulletin.”
27
Relief at 34 (emphasis omitted). Specifically, they note that each provision in the
FCA that the Governor disapproved directed an agency in how funds that were
already allocated were to be used. For example:
Section 1716-J. Treasury Department.
From funds appropriated for intergovernmental
organizations, $45,000 shall be allocated for payment of
dues for fiscal years 2013-2014 and 2014-2015 to a
commission of the Atlantic coastal states that coordinates
the conservation and management of near-shore fish
species.
I [the Governor] withhold my approval from this entire
item.
Id. at 34-35 (emphasis in original). Senators maintain that the emphasized
language clearly demonstrates that the FCA is addressing moneys that have already
been appropriated; the FCA serves as an “ʻinstruction manual’ for the use of public
funds that have been authorized for release by other legislation, [and therefore it
does not constitute a bill ‘making appropriations of money.]’” Id. at 37.
Senators find further support for the distinction between a bill
appropriating money and one which subsequently directs the use of such funds in
our decision in Common Cause, where this court stated, “the legislature is free to
appropriate, subject of course to the constitutional procedures and prohibitions,
and is also free to legislatively determine, through substantive legislation, the
purposes to which appropriated funds are to be devoted . . . .” 668 A.2d at 206(emphasis in original). Therefore, Senators contend, because the FCA does not
appropriate money, the Governor lacked the constitutional authority to line item
veto portions of the bill.
28
Relying on Jubelirer v. Rendell, 953 A.2d 515, 521 (Pa. 2008),
Respondents define an “appropriation bill” as any bill making appropriations of
money, and an “appropriation,” as a provision directing that a specific sum of
money be spent for a particular purpose. Respondents note that the GAA itself
contains items of appropriation that allocate one large sum among multiple
individual uses, similar to the allocations found in the FCA. According to
Respondents, “there is nothing about the appropriations in the Fiscal Code
Amendments that [differ], in a constitutionally significant way, from those in the
General Appropriation Act. Because both sets of appropriations “direct that a
specific sum of money be spent for a particular purpose, both are equally subject to
the Governor’s application of his Section 16 line item veto authority.”
Respondents’ Brief in Opposition to Application for Partial Summary Relief at 28
(internal quotations omitted). Respondents further maintain that there is no
distinction between the decision to appropriate funds and the determination of the
purposes to which the appropriated funds are to be devoted. They contend, “it
would make no sense to argue that the Governor could reduce the overall
appropriation but not the individual allocations that, summed together, direct how
that money is to be spent.” Id. at 28 n.20. To allow the Governor to veto the
former, but not the latter, would result in a budget that would be impossible to
implement; departments would be directed to spend money in excess of that
appropriated in the GAA.
Resolution of whether the Governor has constitutional authority to
line-item veto separate provisions in the FCA, which direct a particular use of
budgetary funds, requires not only construction of the term “appropriation,” but
consideration of the constitutional scheme, its history and purpose, and the
29
relationship between our general appropriations act and fiscal code amendments.
After consideration of these factors, we agree with Respondents’ contentions.
Pursuant to Article VIII, Section 12(a) of our Constitution, the
Governor submits to the General Assembly 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.”35 The General Assembly adopts the budget, however, and determines
operating budget appropriations. PA. CONST. art. VIII, § 13. As our Supreme
Court observed in Jubelirer v. Rendell:
Although the Constitution directs the Governor each year
to “submit” a budget to the General Assembly,
appropriations are to be “made by the General
Assembly,” and “no money shall be paid out of the
treasury, except on appropriations made by law.” So
long as the General Assembly keeps the budget
submitted by the Governor balanced, the Constitution
allows the General Assembly to deviate as much as it
wishes from the Governor’s proposals. [As the Court
35
Prior thereto, and in aid of the Governor formulating the proposed budget, the Secretary of
the Budget prepares and distributes budget request forms to the various departments,
commissions, institutions, and bodies seeking State appropriations in order to procure
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 also requiring the person returning the completed
forms to provide] a statement in writing, giving the purpose of
each program to be funded, the expected levels of activity of the
programs, the expected levels of accomplishments and the
measures to be used to determine to what extent the programs have
achieved the stated purposes.
Section 610(a) of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, added by the
Act of September 27, 1978, P.L. 775, 71 P.S. § 230(a). The Governor may approve, disapprove
or alter the budget requests. Section 610(b), 71 P.S. § 230(b).
30
stated in Shapp v. Sloan, 391 A.2d 595, 604 (Pa. 1978)
(plurality op.):] “[T]he General Assembly enacts the
legislation establishing those programs which the state
provides for its citizens and appropriates the funds
necessary for the operation[ ] [while] [t]he executive
implements the legislation by administering the
programs.” . . .
953 A.2d at 529 (citations omitted).
As noted, Article III, Sections 3 and 11 define the General
Assembly’s appropriation powers by exempting a general appropriation bill from
the single subject limitation applicable to general legislation, and restricting the
scope and subject matter of a general appropriation bill to specific areas of
funding. In Hospital & Health System Association of Pennsylvania v. Department
of Public Welfare, 888 A.2d 601 (Pa. 2005), our Supreme Court revisited the
historical interplay and purposes of Sections 3 and 11. The Court noted that prior
to the adoption of the single-subject rule, omnibus bills had become a “crying
evil,” preventing a focused, thoughtful legislative process. Unrestricted omnibus
bills allowed incongruous subjects to be jumbled together, leading to “confusion
and distraction of the legislative mind . . . and affording [ ] corrupt combinations of
minorities with different interests to force the passage of bills with provisions
which could never succeed if they stood on their separate merits [historically
known as ‘logrolling’].” Id. at 608 [quoting Commonwealth v. Barnett, 48 A. 976,
977 (Pa. 1901)]. The practice of adding “riders,” new, unrelated provisions, on
appropriation bills also developed, forcing the executive to approve “obnoxious
legislation, or bring the wheels of the government to a stop for want of funds.” Id.
at 608 (internal quotation omitted). These practices were eliminated with the
adoption of Sections 3 and 11.
31
If strictly interpreted, Article III, Section 11 would allow nothing
more than “a schedule of amounts appropriated and the objects of the expenditure.”
Id. at 609. However, Article III, Section 11 has not been applied so literally;
language that is germane to the appropriation, not inconsistent with existing
legislation (i.e., it does not seek to change substantive law through an
appropriations act rather than through the normal legislative course), and limited to
the life of the appropriation bill, is permitted and will withstand constitutional
challenge. Id. at 610 [discussing Commonwealth ex. rel. Greene v. Gregg, 29 A.
297 (Pa. 1894)36 and Biles v. Dep’t of Pub. Welfare, 403 A.2d 1341 (Pa. Cmwlth.
1979)].
Regarding the Governor’s veto power, our Supreme Court noted in
Jubelirer that, “[s]tanding in stark contrast to his role of administrator of state
programs that have already been funded is the Governor’s power to disapprove of
legislation before it is enacted.” 953 A.2d at 530. The Governor was not given the
power to line-item veto legislation until the Constitution of 1873. Id. The
Governor’s general veto power to approve or disapprove an entire bill was
intended to counterbalance the legislature’s full control over every subject and
provision in a bill, “at least a negative to the same extent.” Barnett, 48 A. at 977.
Article IV, Section 16 was intended to expand the executive’s veto power; “it is a
clear expression of intent to give the governor, to the extent of refusing approval,
the same control over the particulars of a general appropriation bill that each house
of the legislature had.” Id. The Supreme Court of Connecticut, discussing its
36
There, the Court upheld a provision in a general appropriations act authorizing
employment of a clerk in the office of the Supreme Court prothonotary, noting that it was
incidental to the main purpose of the appropriation, which is “to secure the performance of the
regular and ordinary work of the office.” 888 A.2d at 609 (quoting Gregg, 29 A. at 298).
32
Governor’s item veto power under a constitutional provision similar to Section 16,
observed as follows:
[T]he obvious evil to which [the provision providing the
executive with the power to disapprove any item or items
of any bill making appropriations of money embracing
distinct items] was directed was that of forcing the
governor to accept items of appropriation, which from
the standpoint of good government he felt should not be
made, in order to preserve the bulk of an appropriations
bill which he might feel largely consisted of proper items
of appropriation without which the government could not
operate. . . .
[T]he fundamental reason why a partial disapproval or
veto is not generally authorized, at least in the case of
general legislation, is because of the separation of powers
among the executive, legislative and judicial branches of
the government. All affirmative legislative powers are
given exclusively to the General Assembly. If the
governor were allowed to disapprove or veto parts of a
bill involving general legislation, he could, in the case of
many if not most such bills, by the exercise of that
power, eliminate selected portions of a bill in such a
manner as to change its meaning and thereby, in effect,
enact an entirely different bill. This would usurp the
legislative function, which is committed to the General
Assembly alone. But such legislative action through the
use of the veto power would be impossible if the veto
power were restricted to distinct items of appropriation in
a bill, whether that bill did, or did not, include other
items of general legislation.
Jubelirer, 953 A.2d at 531-32 [quoting Patterson v. Dempsey, 207 A.2d 739, 745-
47 (Conn. 1965)]. It has also been suggested that Section 16 provides the
Governor with the ability to reduce amounts appropriated in order to insure that a
balanced budget is passed. Id. at 525 (noting party’s citation to constitutional
debates). In Jubelirer, the issue before the Court was whether the Governor had
33
the authority under Section 16 to disapprove of language only in an appropriation
bill without disapproving the funds with which the language was associated.37 The
Court ultimately concluded that Section 16 does not permit the Governor, when
passing upon an appropriations bill, to disapprove of only the language and not the
relevant amounts appropriated. According to the Court, Section 16 authorizes only
the disapproval of items of appropriation, which it defined in turn as “a sum of
money directed by the General Assembly to be spent for a particular purpose.” Id.
at 534.38 Although there was no question in Jubelirer that the bill at issue was a
general appropriations act, the Court opined that the phase “[i]tems of any bill
making appropriations of money,” in Section 16 distinguished its application from
that of Section 15, that is, Section 16 was intended to apply to appropriation bills
and Section 15 to general legislation. Id. at 532.
The Fiscal Code defines the powers and duties of, inter alia, the
Department of Revenue and the Treasury Department regarding the collection of
all monies due the Commonwealth and the “disbursement or other disposition of
funds” belonging to the Commonwealth or in its possession. Section 2 of The
Fiscal Code, Act of April 9, 1929, P.L. 343, 72 P.S. § 2 (emphasis added). Our
Supreme Court most recently observed that, in conjunction with the annual
appropriations process, “the General Assembly has employed omnibus
37
For instance, from a provision appropriating $137,393,000 to the State Police for general
operations, the Governor disapproved of a provision that stated: “No Pennsylvania Police State
barracks shall be closed until such time as the Pennsylvania State Police conduct a public hearing
and provide 30 days’ notice which shall be published in the Pennsylvania Bulletin and in at least
two local newspapers.” 953 A.2d at 519 n.4.
38
In construing an item of appropriation, the Court noted the legal definition of
“appropriation,” that is, “a sum of money that a legislative body sets aside for a public purpose.”
Id. at 532 [citing Black’s Law Dictionary 110 (8th ed. 2004)].
34
amendments to the Fiscal Code, for many years, as the enabling mechanism for
financing state government operations and various programs.” Sears v. Wolf, 118
A.3d 1091, 1094 (Pa. 2015). The process of adopting a capital budget “entails a
myriad of difficult policy decisions, among competing interests, in determining
fiscal priorities and attendant allocations. Adoption of a budget would be a hollow
act in the absence of an implementing mechanism, here, the Fiscal Code.” Id. at
1103.39 Indeed, as in this case and historically, the Governor acts upon the two
related pieces of legislation simultaneously. The interdependent relationship
between the two acts is demonstrated by the preliminary findings set forth in the
FCA:
The General Assembly finds and declares as follows:
(1) The intent of this act is to provide for the
implementation of the 2014-2015 Commonwealth
budget.
39
It bears noting that in Sears, the 2010-2011 fiscal code amendments, specifically the Act
of July 6, 2010, P.L. 279 (entitled, “Fiscal Code – Omnibus Amendments,” and providing for,
inter alia, implementation of the Commonwealth’s operating budget for fiscal year 2010-2011)
were challenged on constitutional grounds, including that the legislation violated the single-
subject requirement of Article III, Section 3. Although the Court acknowledged the concerns
were it to hold that the omnibus approach to implementing the budget was unconstitutional, it
declined to resolve the issue, observing generally:
Given the impact on many and varied interests . . . the
omnibus approach facially appears to test the limits of the practical
germaneness litmus which this Court conventionally applies to
assess single-subject challenges. Moreover, without any
limitations whatsoever, the practice would seem to be susceptible
to the “logrolling” concern underlying Article III, Section 3’s
single-subject requirement. Accordingly, in an appropriate case,
we may be required to determine whether judicial intervention is
possible and/or appropriate and, if so, what may be the appropriate
standards.
118 A.3d at 1103.
35
....
4) Pursuant to section 13 of Article VIII . . . the
General Assembly is explicitly required to adopt a
balanced Commonwealth budget. Given the
unpredictability and potential insufficiency of revenue
collections, various changes in State law relating to
sources of revenue, the collection of revenue and the
implementation of statutes which impact revenue may be
required to discharge this constitutional obligation.
(5) Section 11 of Article III . . . requires the
adoption of a general appropriation bill that embraces
"nothing but appropriations." While actual appropriations
can be contained in a General Appropriations Act, the
achievement and implementation of a comprehensive
budget involves more than appropriations. Ultimately,
the budget has to be balanced under section 13 of Article
VIII of the Constitution of Pennsylvania. This may
necessitate changes to sources of funding and enactment
of statutes to achieve full compliance with these
constitutional provisions.
(6) For the reasons set forth in paragraphs (1), (2),
(3), (4) and (5), it is the intent of the General Assembly
through this act to provide for the implementation of the
2014-2015 Commonwealth budget.
(7) Every provision of this act relates to the
implementation of the operating budget of the
Commonwealth for this fiscal year, addressing in various
ways the fiscal operations, revenues and potential
liabilities of the Commonwealth. To that end, this act
places conditions on appropriations, provides for
accountability for spending and makes any necessary
transfers or other changes necessary to impact the
availability of revenue or the fiscal conditions of the
Commonwealth, in order to meet the requirements of
section 13 of Article VIII . . . and to implement the act
of , 2014 (P.L. , No. A), known as the General
Appropriation Act of 2014.
36
Id., Appendix Tab B at 2-3.40
Here, the Governor’s disapprovals in the GAA and FCA correlate. For
instance, in Section 210(7) of the GAA, pertaining to the Department of
Conservation and Natural Resources, the Governor reduced the appropriation for
“Heritage and Other Parks,” from $2,750,000 to $2,250,000. PFR, Appendix Tab
A at 247. In conjunction with this action, the Governor completely disapproved of
Section 1720-J of the FCA (providing that the following shall apply to
appropriations from the Department of Conservation and Natural Resources in the
GAA), subsection (1), which stated: “From funds appropriated for Heritage and
other parks, $500,000 shall be used for the operation and maintenance of the
Washington Crossing Historical Park.” Id., Appendix Tab B at 72. Similarly, in
Section 206 of the GAA, pertaining to appropriations for the operation of the
Treasury Department, the Governor reduced the appropriation for “The Payment of
the Commonwealth’s Portion of the Expenses of Various Councils, Commissions,
Conferences, Boards, Associations, Coalitions and Institutes which are Multistate
Organizations of which the Commonwealth Has Been a Member for at Least One
Year and which Membership Enables the Commonwealth Government to
Represent the Citizens of [PA,] Such Organizations Being Designed to Promote or
Protect the Member States’ Interests, or which Promote Governmental Financial
Excellence or Accountability,” from $1,081,000 to $1,036,000. In connection
therewith, the Governor disapproved of Section 1716-J of the FCA, which stated:
40
The complexity of achieving a comprehensive balanced distribution of funds to operate
the Commonwealth’s government and programs via the coordination of provisions between the
general appropriations bill and fiscal code amendments is also demonstrated by our decision in
Pennsylvania Environmental Defense Foundation v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth.
2015), reargument denied (February 3, 2015).
37
“From funds appropriated [to the Treasury Department] for intergovernmental
organizations, $45,000 shall be allocated for payment of dues for fiscal years 2013-
2014 and 2014-2015 to a commission for the Atlantic coastal states that
coordinates the conservation and management of near-shore fish species.” Id.,Appendix Tab B at 70. The result of such coordinated, symmetrical actions
clearly serves to keep an agency’s or department’s operations, as ultimately funded
in the GAA, within the confines of its appropriation.
Considering the above constitutional framework, the process
established for the adoption of a budget and the Governor’s role therein, including
his unique power of disapproval in the appropriations context, we conclude that the
FCA constitutes a “bill making appropriations of money, embracing distinct
items,” for purposes of Article IV, Section 16. In reaching this conclusion, we
define an “appropriation” as a sum of money that the legislature designates for a
particular public purpose. This definition (stemming from Black’s Law Dictionary)
mirrors the Supreme Court’s construction of the term in Jubelirer v. Rendell, 953
A.2d at 532 (quoting Black’s; see footnote 39 above), and our construction of the
term in Common Cause, 668 A.2d at 205 (quoting Black’s; citation omitted), and
County of Mercer v. Amundsen, 879 A.2d 366, 369-70 (Pa. Cmwlth. 2005) (citing
Common Cause). The fact that the FCA serves to further define the legislature’s
prior allocation of funds does not preclude the allocation from constituting an
“appropriation,” or the FCA from constituting a “bill making appropriations of
money.”41 As to the latter observation, following Common Cause, we also adopt
41
The fact that the FCA contains more than appropriations does not change our conclusion
either. Article IV, Section 16 applies to any bill that makes appropriations of money. Whether
the FCA comports with applicable constitutional requirements is not before us. See Jubelirer,
953 A.2d at 536 (noting that it was not the Court’s task to determine whether the failure to strike
(Footnote continued on next page…)
38
Black’s legal definition for an “appropriation bill:” “A measure before a legislative
body authorizing the expenditure of public moneys and stipulating the amount
manner, and purpose of the various items of expenditure . . . .” 668 A.2d at 205(quoting Black’s). There is simply no reason to deviate from our sound precedent.
Our construction today is also consistent with the manner in which the
term “appropriation” is used in other constitutional provisions, to wit: Article III,
Section 29 (providing: “No appropriation shall be made for charitable, educational
or benevolent purposes to any person or community nor to any denominational and
sectarian institution . . . . Provided, That appropriations may be made for pensions
or gratuities for military service and to blind persons . . . .”); Article III, Section 30
(providing: “No appropriation shall be made to any charitable or educational
institution not under the absolute control of the Commonwealth . . .”). The term
“appropriation” in these provisions means the legislature’s designation or
allocation of funds to a particular purpose; the limitation on purpose or use applies
to both the initial appropriation to an agency or department in a general
appropriation act and to subsequent legislation directing funds to a particular
purpose. We agree there is no substantive distinction between the two; both
involve an act of legislature authorizing a use of public funds for a particular
purpose. This comports with Article III, Section 24 (“[n]o money shall be paid out
of the treasury, except on appropriations made by law and on warrant issued by the
proper officers . . . .”) as well. Specifically designating funds for a particular
_____________________________
(continued…)
particular language from a bill would leave it susceptible to a challenge under other provisions of
the Constitution.).
39
purpose in the FCA is clearly an “appropriation made by law;” it authorizes the
executive branch to use the funds for the means directed.
Finally, deeming the FCA as a “bill making appropriations of money,”
serves the purposes of the constitutional scheme outlined for our tripartite
government. While the Governor is not empowered to interfere with the legislative
power to craft the purpose and scope of general legislation via a partial veto, he has
been empowered with the ability to disapprove of specific items of appropriation in
a bill making appropriations of money – that is, he can disapprove of any provision
in a bill directing funds to be spent for a particular purpose, thereby exerting a
greater influence and measure of control (i.e., his limited legislative authority in
the appropriations context) in achieving a budget acceptable to all sides. Such
limited legislative power would be essentially meaningless if it could be exercised
in the context of the GAA, but not with regard to related or coordinated provisions
in the FCA. Such a conclusion would leave the Governor with only the option of
disapproving the entire FCA, effectively derailing many of the general
appropriations approved, a result inconsistent with the language of Article IV,
Sections 15 and 16, and the intended purposes thereof. Accordingly, we conclude
that the Governor had the authority under Article IV, Section 16 to disapprove of
items of appropriation in the FCA. Summary relief is therefore denied.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
Judges Leavitt and Brobson did not participate in the decision in this case.
40
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph B. Scarnati, Senator and :
President pro tempore of the Senate of :
Pennsylvania; Jake Corman, Senator :
and Majority Leader of the Senate of :
Pennsylvania; Jay Costa, Senator and :
Minority Leader of the Senate of :
Pennsylvania, :
Petitioners :
:
v. : No. 579 M.D. 2014
:
Tom Wolf, Governor of :
Pennsylvania; Randy Albright, :
Secretary of the Budget; Christopher :
Craig, Acting State Treasurer of :
Pennsylvania; Dennis M. Davin, :
Acting Secretary of Community and :
Economic Development; Cindy :
Adams Dunn, Acting Secretary of :
Conservation and Natural Resources; :
John Quigley, Acting Secretary of :
Environmental Protection; Curtis M. :
Topper, Acting Secretary of General :
Services; Kathy Manderino, Acting :
Secretary of Labor & Industry; :
James R. Joseph, Acting Adjutant :
General of Pennsylvania; Josh :
Shapiro, Chairman of the :
Pennsylvania Commission on Crime :
and Delinquency, :
Respondents :
ORDER
AND NOW, this 30th day of December, 2015, Respondents’
preliminary objections are hereby OVERRULED. Further, Petitioners’ application
for summary relief is also DENIED. An answer is due in thirty days.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge