Bergdoll v. Kane

• Citation: 557 Pa. 72,731 A.2d 1261
• Parties: John G. BERGDOLL, K. Robin Davis, and Gerald C. Grimaud, Appellees, v. Honorable Yvette KANE, Secretary of the Commonwealth of Pennsylvania and the General Assembly of the Commonwealth of Pennsylvania, Intervenor, Appellants. Pennsylvania Bar Association, Intervenor.
• Decision Date: 15 June 1999
• Court: United States State Supreme Court of Pennsylvania

731 A.2d 1261

557 Pa. 72

John G. BERGDOLL, K. Robin Davis, and Gerald C. Grimaud, Appellees, v. Honorable Yvette KANE, Secretary of the Commonwealth of Pennsylvania and the General Assembly of the Commonwealth of Pennsylvania, Intervenor, Appellants.

Pennsylvania Bar Association, Intervenor.

Supreme Court of Pennsylvania.

Argued November 16, 1998.

Decided June 15, 1999.

D. Michael Fisher, Harrisburg, Calvin R. Koons, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., for Appellant, Secretary of the Com.

C. Clark Hodgson, Jr., Jonathan F. Bloom, Philadelphia, for Intervenor-General Assembly.

Leonard N. Sosnov, Associate Prof. of Law, Widener Univ., Wilmington, DE, for Bergdoll, Davis and Grimaud, John G. Bergdoll, III, Gerald C. Grimaud, K. Robin Davis, Bergdoll, Davis and Grimaud, pro se.

Clifford A. Rieders, Special Counsel, PA Bar Ass'n, Williamsport, for Intervenor-PA Bar Ass'n.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

This is a direct appeal filed on behalf of Yvette Kane, Secretary of the Commonwealth, from the order of the Commonwealth Court which granted summary judgment against her in a quo warranto action challenging the placement of a proposed constitutional amendment on the November 7, 1995 ballot. For the following reasons, we affirm.

On October 17, 1995, John G. Bergdoll, K. Robin Davis and Gerald C. Grimaud (Appellees) filed an Application for Leave to File Complaint in Quo Warranto, a Complaint in Quo Warranto, and a Motion for Temporary Restraining Order and Preliminary Injunction against Secretary Kane in this Court. Appellees sought to enjoin the inclusion of a ballot question which would amend the confrontation clause of Article I, § 9 of the Pennsylvania Constitution on the November 1995 ballot. Secretary Kane filed an answer to the application on October 30, 1995 and Appellees' reply was filed the next day. By per curiam order dated November 1, 1995, we transferred the matter to Commonwealth Court for expedited consideration.

The Commonwealth Court scheduled a hearing for November 2, 1995 on the request for a preliminary injunction to enjoin Secretary Kane from placing the proposed constitutional amendment before the electorate. At the hearing, President Judge Colins considered an application by Appellee, Pennsylvania Bar Association, to intervene as a party-plaintiff, or alternatively as amicus curiae, in the quo warranto action. The application represented that the PBA would also seek to enjoin the inclusion of the disputed ballot question on the ballot. President Judge Colins granted the application and permitted the PBA to intervene as a party-plaintiff in the action. On November 2, 1995, President Judge Colins also entered an order denying the Appellees' request for a preliminary injunction. In his memorandum opinion dated November 3, 1995, President Judge Colins stated that the request had been denied based solely upon his conclusion that Appellees had failed to show an immediate need for relief and irreparable harm, and that the denial did not preclude ultimate relief on the merits, if necessary, after the election. We affirmed the Commonwealth Court's decision on appeal by Appellees by order dated November 6, 1995.

The ballot question sought to be enjoined by Appellees proposed to amend the confrontation clause of the Pennsylvania Constitution and to amend the Pennsylvania Constitution so as to allow the General Assembly to enact laws regarding the manner by which children may testify in criminal proceedings. The proposed amendments were in response to this Court's decision in Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991).

In Ludwig, we addressed the issue of whether the use of closed circuit television to transmit the testimony of an alleged child victim violates the confrontation clauses of the United States Constitution and the Pennsylvania Constitution. We held that the confrontation clause in Article I, § 9 of the Pennsylvania Constitution does not permit such an infringement of a defendant's constitutional right to meet a witness face to face.

Article I, § 9 of the Pennsylvania Constitution provides that

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or information, a speedy public trial by an impartial jury of this vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

We stated that Article I, § 9 "clearly, emphatically and unambiguously requires a `face to face' confrontation." We drew on our observations about the nature of the confrontation clause in the case of Commonwealth v. Russo, 388 Pa. 462, 131 A.2d 83 (1957):

Many people possess the trait of being loose tongued or willing to say something behind a person's back that they dare not or cannot truthfully say to his face or under oath in a courtroom. It was probably for this reason, as well as to give the accused the right to cross-examine his accusers and thereby enable the jury to better determine the credibility of the Commonwealth's witnesses and the strength and truth of its case, that this important added protection was given to every person accused of crime. We have no right to disregard or (unintentionally) erode or distort any provision of the Constitution, especially where, as here, its plain and simple language make its meaning unmistakably clear; indeed, because of the times in which we live we have a higher duty than ever before to zealously protect and safeguard the Constitution.

388 Pa. at 470-471, 131 A.2d at 88.

The resolution of the issue under the Pennsylvania Constitution made it unnecessary to address the federal constitutional claim. We noted, however, that the confrontation clause of the Sixth Amendment of the U.S. Constitution, which provides that a defendant in a criminal case "shall enjoy the right ... to be confronted with the witnesses against him," did not require the "face to face" confrontation mandated by the state constitution. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

On April 26, 1993, the Pennsylvania Senate passed Joint Resolution No. 1 of Session 1993-94 (Senate Bill 218 of 1993) which proposed to amend Article I, § 9. The same resolution was passed by the House of Representatives on June 20, 1994. The proposed amendment was drafted so as to delete the face to face requirement of the confrontation clause of Article I, § 9, and replace the requirement with the language contained in the confrontation clause of the Sixth Amendment of the U.S. Constitution. Furthermore, the proposed amendment included an additional provision that would give the General Assembly the authority to establish by statute the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television.¹

The text of the proposed amendment set forth in Joint Resolution 1994-1 provided that Article I, § 9 be amended to read:

§ 9. Rights of accused in criminal prosecutions.

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him to [meet the witnesses face to face] be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself. Notwithstanding the provisions of this section, the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television.

The underlined language was to be added to the Pennsylvania Constitution, while the bracketed language was to be deleted. The joint resolution was subsequently published by the Secretary of the Commonwealth in newspapers throughout the Commonwealth.

On February 14,1995, the Senate passed Joint Resolution No. 1, Special Session of 1995 (Joint Resolution 1995-1), which was passed by the House of Representatives on March 13, 1995. Joint Resolution 1995-1 directed the Secretary of the Commonwealth to submit the proposed amendment to Article I, § 9 to the electorate at the November 7, 1995 election. The Secretary of the Commonwealth published notice and the text of Joint Resolution 1995-1, the ballot question for the proposed amendment, and a statement of the Attorney General in newspapers in August, September and October 1995.

The ballot question presented to the voters in November 1995 read:

Shall the Pennsylvania Constitution be amended to provide (1) that a person accused of a crime has the right to be "confronted with the witnesses against him," instead of the right to "meet the witnesses face to face," and (2) that the General Assembly may enact laws regarding the manner by which children may testify in criminal proceedings, including the use of videotaped...