Cloonan v. Thornburgh
| Decision Date | 22 December 1986 |
| Citation | 103 Pa.Cmwlth. 1,519 A.2d 1040 |
| Parties | Edward A. CLOONAN, Petitioner, v. The Honorable Dick THORNBURGH, Governor of the Commonwealth of Pennsylvania, Respondent. PENNSYLVANIA LIQUOR CONTROL BOARD, Petitioner, v. Governor Richard THORNBURGH, Respondent. Wendell W. YOUNG, Individually, as a taxpayer et al., Petitioners, v. Governor Dick THORNBURGH, Respondent. Edward P. ZEMPRELLI et al., Petitioners, v. Dick THORNBURGH, Respondent. UNITED FOOD AND COMMERCIAL WORKERS LOCAL 1357 et al., Petitioners, v. Governor Richard THORNBURGH, Respondent. . Heard |
| Court | Pennsylvania Commonwealth Court |
John D. Killian, Robert W. Barton, Killian & Gephart, Harrisburg, for cloonan.
Henry G. Barr, Barry M. Hartman, Raymond P. Pepe, Andrew H. Cline, Harrisburg, for Thornburgh.
Katherine Speaker MacNett, Baskin, Flaherty, Eliott, Mannino & Beren, P.C., Harrisburg, for amicus curiae, Penn Berr Distributors, Inc., t/a Penn Beer Distributors W & L Sales, Inc. and Pennsylvania Beer Wholesalers Assoc.
Stuart M. Niemtzow, Mid-Atlantic Legal Foundation, Philadelphia.
Gary F. DiVito, Goldstein, Friedberg, Zaslow & DiVito, Philadelphia, for Young, et al.
Alaine S. Williams, Philadelphia, (Intervention Granted), for Council 13 AFL-CIO.
John Raup, Chief Counsel, Bureau of Labor Relations, Harrisburg.
Jerome H. Gerber, Irwin W. Aronson, Handler, Gerber, Johnston, Strokoff & Cowden, Harrisburg, Intervention Granted, for Pa. AFL-CIO.
Gary P. Hunt, Tucker, Arensberg, Very & Ferguson, P.C., Pittsburgh, for Robert C. Jubelirer and William W. Scranton.
Kenneth B. Skelly, Chief Counsel, Felix Thau, Deputy Chief Counsel, Eileen S. Maunus, Asst. Counsel, Harrisburg, for Pa. Liq. Control Bd.
Fred Speaker, Thomas B. Schmidt, III, Harrisburg, for Common Cause.
Michael T. McCarthy, Chief Counsel, Sally A. Ulrich, Harrisburg, for Zemprelli, et al.
Bernard N. Katz, Basil L. Merenda, Meranze & Katz, Philadelphia, for United Food and Commercial Workers Local 1357, et al.
Before CRUMLISH, Jr., President Judge.
On December 22, 1986, this Chancellor heard argument on seven separate applications for special and preliminary relief involving five actions brought against Dick Thornburgh, Governor of the Commonwealth of Pennsylvania, which arose from the issuance of Executive Order 1986-7 providing for the phase-out of the Pennsylvania Liquor Control Board (PLCB).
Edward A. Cloonan, a state store manager and President of the Independent State Store Union, filed a petition for review (No. 3467 C.D. 1986) in this Court's appellate jurisdiction, 42 Pa.C.S. § 763, and an application for special relief pursuant to Pa.R.A.P. 1532(a) seeking to preliminarily enjoin Executive Order 1986-7.
The PLCB filed a petition for review (No. 3481 C.D. 1986) in the nature of an action for declaratory judgment and permanent injunction in this Court's original jurisdiction, 42 Pa.C.S. § 761, and an application for summary relief 1 pursuant to Pa.R.A.P. 1532(b) requesting this Court (1) to declare Executive Order No. 1986-7 null and void, (2) to define the legal status of the PLCB after December 31, 1986, and (3) to declare the Sunset Act 2 unconstitutional.
Wendell W. Young, as taxpayer and president of the United Food and Commercial Workers Union, representing approximately 3,500 state store employees, filed a petition for review (No. 3534 C.D. 1986) in the nature of an action for declaratory judgment and permanent injunction in this Court's original and appellate jurisdiction and an application for special relief asking this Court to declare the Sunset Act unconstitutional and Executive Order 1986-7 invalid.
Seven state Senators 3 filed a petition for review (No. 3535 C.D. 1986) in our original jurisdiction and an application for preliminary injunction seeking to enjoin the implementation of Executive Order 1986-7.
Finally, the United Food and Commercial Workers Local 1357 filed a petition for review (No. 3604 C.D. 1986) in the nature of an action for declaratory judgment and permanent injunction in this Court's original jurisdiction and an application for summary relief requesting this Court to enjoin the implementation of Executive Order 1986-7, to declare the Sunset Act unconstitutional, and to define the legal status of the PLCB after December 31, 1986.
On December 19, 1986, the Pennsylvania AFL-CIO, the American Federation of State, County and Municipal Employees, Council 13, AFL-CIO, the Pennsylvanians for a Responsible End to the State Store System 4 (PRESSS) and Common Cause, a nonprofit citizen organization promoting accountability in federal, state and local governments, were granted status as intervenors. On December 23, 1986, the President and President Pro Tempore of the State Senate were granted permission to intervene as party-respondents.
Notwithstanding the number of petitions and variety of applications filed, these suits collectively present identical issues: (1) the constitutionality of the Act of December 22, 1981, commonly and hereafter referred to as the Sunset Act; (2) the validity of the sunset procedure as applied to the PLCB, and (3) the constitutionality and/or validity of Executive Order 1986-7.
The Sunset Act provides a detailed statutory mechanism for legislative review of, inter alia, the conduct, need for, and constitution of existing administrative agencies, boards and commissions in this Commonwealth. Common Cause notes in its amicus brief that thirty-four other states have enacted similar Sunset legislation. The Sunset Act provides for the following: a termination deadline; an evaluation and review process; and a reestablishment or continuance format. Because it is a novel and innovative act, it is subject to wide and varied interpretations in the public and private sectors. This Chancellor believes a step-by-step analysis of the Sunset Act's procedures through a termination of a hypothetical state agency, "XYZ Board," will be illustrative.
Section 6 of the Act mandates that the XYZ Board together with its corresponding statutory functions shall terminate all activities and shall go out of existence on December 31, 1986.
Sections 3 and 4 of the Act create a Sunset Leadership Committee 5 and authorize it to direct and coordinate the implementation of the sunset review procedure. In January of the scheduled termination year, the Committee designates an appropriate standing committee to conduct a review and evaluation of the XYZ Board.
Section 5, which prescribes evaluation and review guidelines, requires the standing committee to consider certain reports and take certain action to ensure an appropriate review; a public hearing on the sunset of the XYZ Board must be held; before March 1st of the scheduled termination year, advice from the Office of the Auditor General and Governor's Offices of Budget and Administration must be obtained; and reports from the Legislative Budget and Finance Committee and the Legislative Reference Bureau concerning performance audits and XYZ legislative authority must be reviewed. Finally, on or before the first September session day of the scheduled termination year, the standing committee makes findings and conclusions as to its evaluation and review of the XYZ Board and submits a report along with a draft of appropriate legislation to implement its recommendations to the General Assembly. Each House is then permitted to act accordingly, consistent with its rules, on the legislation.
Section 7(a) of the Act provides for a reestablishment of the XYZ Board by appropriate legislation or, pursuant to Section 7(b), a continuation of the XYZ Board by resolution, calendared for the first session day of November in the scheduled termination year, passed by a majority of the membership of each House.
If the XYZ Board is not reestablished or continued, Sections 6(f) and 9 provide for administrative termination procedures. The sunsetted XYZ Board is given six months to "wind up [its] affairs" 6 and to dispose of property, to arrange for the retention of records, and to do whatever else is necessary to finalize operations by the date certain (i.e., June 30th of the year following the sunset termination year).
During the windup, the Governor may petition the General Assembly for a review of the termination; however, the agency is terminated "unless the General Assembly passes a law to the contrary." Section 6(f). The Governor "shall not utilize a reorganization plan, executive order, rule or regulation or comparable authority to evade the provisions of this Act." Section 6(d) (emphasis added). This Chancellor finds that the Section 7 deadline for consideration and reestablishment or continuation of the existing XYZ Board is a self-imposed mechanism.
The stipulated exhibits in this proceeding and the record and holding in Zemprelli v. Jubelirer, --- Pa.Commonwealth Ct. ---, 519 A.2d 518 (1986), 7 declare that the PLCB is terminated on December 31, 1986. 8 In that case, the evaluation and review process was complied with. However, due to a variety of disagreements on proposed legislation, no consensus as to a reestablishment or reshaping of the PLCB was reached by the General Assembly as of November 1, 1986. Hence, at that time, the next step--namely, the continuation provisions of Section 7(b)--came into focus. The House of Representatives passed a resolution continuing the PLCB for a period of ten years. However, the Senate failed to consider "the question, in form of resolution, of whether the Liquor Control Board ... [shall] be continued." In Zemprelli v. Jubelirer, this Court reviewed the legislatively prescribed duty of the presiding officer of the Senate and held that, pursuant to Section 7(b), he had a mandatory duty to list for that body's consideration the PLCB sunset resolution on the Senate calendar. He failed to do so. Since the filing of our Order, the...
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