Gmerek v. State Ethics Commission

• Decision Date: 23 August 2002
• Docket Number: No. 57 Map 2000.,57 Map 2000.
• Citation: 807 A.2d 812,569 Pa. 579
• Parties: Richard J. GMEREK and Charles I. Artz, v. STATE ETHICS COMMISSION and Honorable Mike Fisher, Attorney General, and Mark R. Corrigan, Secretary of the Senate of Pennsylvania, Intervenor, Appeal of: Honorable Mike Fisher, Attorney General No. 55 Map 2000; State Ethics Commission No. 56 Map 2000; Mark R. Corrigan, Secretary of the Senate of Pennsylvania, Intervenor
• Court: Pennsylvania Supreme Court

807 A.2d 812

569 Pa. 579

Richard J. GMEREK and Charles I. Artz, v. STATE ETHICS COMMISSION and Honorable Mike Fisher, Attorney General, and Mark R. Corrigan, Secretary of the Senate of Pennsylvania, Intervenor, Appeal of: Honorable Mike Fisher, Attorney General No. ; State Ethics Commission No. ; Mark R. Corrigan, Secretary of the Senate of Pennsylvania, Intervenor

No. .

Supreme Court of Pennsylvania.

Argued April 30, 2001.

Decided August 23, 2002.

Reargument Denied October 23, 2002.

John G. Knorr, Calvin Royer Koons, Harrisburg, for Mike Fisher, Atty. Gen.

Donald Marritz, Carlisle, for Common Cause of PA.

James D. Cashel, John H. Estey, Michael D. Epstein, Philadelphia, Philadelphia, for Gmerek/Artz.

Robin M. Hittie, Vincent J. Dopko, Harisburg, for State Ethics Commission.

Stefan Presser, Phildelphia, for American Civil Liberties Union of PA.

Helene Eichenwald Loux, Linda J. Shorey, John P. Krill, Harrisburg, for Intervenor-Mark Corrigan.

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

ORDER

PER CURIAM.

AND NOW, this 23rd day of August 2002, the Court being evenly divided, the order of the Commonwealth Court is affirmed.

Former Chief Justice FLAHERTY did not participate in the decision of this matter.

Chief Justice ZAPPALA files an Opinion in Support of Affirmance in which Justice CAPPY joins.

Justice CASTILLE files an Opinion in Support of Affirmance.

Justice SAYLOR files an Opinion in Support of Reversal in which Justice Nigro and Justice Newman join.

Chief Justice ZAPPALA.

OPINION IN SUPPORT OF AFFIRMANCE

This is a direct appeal from the order of the Commonwealth Court declaring the Lobbying Disclosure Act (Act), 65 Pa.C.S. §§ 1303-1311, unconstitutional on the basis that it violates Article V, Section 10 of the Pennsylvania Constitution by infringing on this Court's exclusive authority to regulate the practice of law.¹ For the following reasons, I would affirm.

The instant action was commenced on May 26, 1999, by the filing of a Petition for Review in the nature of a complaint for declaratory judgment filed in the original jurisdiction of the Commonwealth Court.²³ The Petitioners (now Appellees), Gmerek and Artz, allege in the petition that they are members of the Pennsylvania bar who, on behalf of their clients, engage in activities which are classified as "lobbying" under the Act. They further allege that with respect to those activities, the Act unconstitutionally regulates the practice of law in violation of Article V, Section 10.⁴ Motions for summary judgment were filed by the State Ethics Commission, the Attorney General and the Appellees. A motion for judgment on the pleadings was filed by Intervenor Corrigan.

A majority of the Commonwealth Court found the critical inquiry to be whether the activities regulated by the Act constitute the "practice of law" when performed by lawyers and not whether non-lawyers could also perform such activities. The majority ultimately concluded that several of the provisions of the Act purport to regulate activities which, when performed by attorneys such as Appellees, constitute the practice of law. Accordingly, the court found that those provisions conflict with Article V, Section 10 of the Pennsylvania Constitution by infringing on this Court's exclusive authority to regulate the practice of law in this Commonwealth.⁵ However, rather than strike those specific provisions of the Act, the court declared the entire Act void pursuant to Section 1311(b) of the Act which provides:

Severability

(b) Practice of law.— If any provision of this chapter or its application to any person or circumstance is held invalid on the basis of improper regulation of the practice of law, the remaining provisions or applications of this chapter are void.

65 Pa.C.S § 1311(b). Accordingly, the court granted Appellees' motion for summary judgment and denied the remaining motions. Three members of the Commonwealth Court dissented finding that because the regulation is aimed at conduct applied to all persons who lobby, our decision in P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999), would dictate that the Act does not infringe on this Court's exclusive jurisdiction to regulate the conduct of attorneys. Respondents (now Appellants), the State Ethics Commission and the Attorney General, and Intervenor, Corrigan, then appealed that decision to this Court.⁶

The Act, which was signed into law on October 15, 1998, and made effective August 1, 1999, sets forth certain registration and reporting requirements for lobbyists and principals. In addition, the Act also prohibits certain activity by a lobbyist and provides for penalties for any violation of the Act. The stated purpose of the Act is to regulate the activities of those persons employed to influence the actions of the General Assembly and the Executive Department and purports to govern any person engaged in the practice of lobbying to the exclusion of any other regulations. 65 Pa.C.S. § 1302.⁷ The Act defines the term "lobbyist" as "[a]ny individual, firm, association, corporation, partnership, business trust or business entity that engages in lobbying on behalf of a principal for economic consideration" and further states that the "term includes an attorney who engages in lobbying." 65 Pa.C.S. § 1303. "Lobbying" is defined as "[a]n effort to influence legislative action or administrative action" including "(1) providing any gift, entertainment, meal, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal; and (2) direct or indirect communication."

Respecting the reporting requirements, the Act dictates that each lobbyist register with the Commission and provide the following information: (1) name, address, phone number and a recent picture; (2) the name, address and phone number of any principal the lobbyist represents; (3) the name, registration number and acronyms of affiliated political action committees; and (4) a biennial fee of one hundred dollars ($100.00). See 65 Pa.C.S. §§ 1304(c) and 1310(a). The Act also demands that a lobbyist file quarterly expense reports that include: (1) the names of all lobbyists by whom the lobbying is conducted and the general subject matter or issue being lobbied; (2) a single aggregate good faith estimate of the total amount spent for personnel and office expenses related to lobbying; (3) a single aggregate good faith estimate of the total amount spent for direct and indirect communication; (4) the total costs for gifts, entertainment, meals, transportation, lodging and receptions, given to or provided to State officials or employees or their immediate families; and (5) the name and position of each State official or employee who receives an item of material value and the date of each such occurrence. 65 Pa.C.S. § 1305(b). A lobbyist must also retain all documents necessary to substantiate the required reports for a period of four years and make those documents available for inspection if requested. 65 Pa.C.S. § 1305(c).⁸

The Act also prohibits certain activities by a lobbyist. First, it prohibits any compensation that is contingent on the outcome of the lobbying activities. 65 Pa.C.S. § 1307(a). It also prohibits a lobbyist from serving as an officer on a candidate's political committee and precludes a lobbyist from requesting or accepting compensation with the understanding that any part thereof will be converted into a political contribution. 65 Pa.C.S. § 1307(b) & (c). Finally, a lobbyist is precluded from knowingly communicating false information to state officials or employees. 65 Pa.C.S. § 1307(d).

The Act also provides for penalties for noncompliance with the dictates of the Act which include: (1) notices of noncompliance; (2) administrative hearings; (3) civil penalties; (4) criminal penalties; and (5) a prohibition from lobbying for up to five years. 65 Pa.C.S. § 1309. The administration and enforcement of the Act is vested in Appellant Commission and Appellant Attorney General. 65 Pa.C.S. § 1308.

Appellants argue that the Act, by its terms, regulates the practice of lobbying, not the practice of law, and under prior precedent of this Court, the Act should survive since it is not regulating lawyers because they are lawyers. In support thereof, they cite this Court's decision in P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). They also argue that the definition of "lobbying" contained in the Act does not describe the "practice of law" and, therefore, the Act does not infringe on this Court's right to regulate the conduct of attorneys. According to Appellant Corrigan, lobbying is an activity in which the fundamental element of judgment concerns the personal, political or economic interest of the party on whose behalf the lobbying is being done whereas the practice of law requires the exercise of legal judgment. He submits that while an attorney may provide legal analysis and judgment to his clients regarding a proposed piece of legislation, such activities do not constitute lobbying. Rather, he submits, it is the communication of such judgment to our legislators that comprises the act of lobbying, which, according to Appellants, is separate and distinct from the exercise of the underlying legal judgment. Appellant State Ethics Commission, similarly argues that "lobbying" does not encompass the practice of law because the activity of lobbying does not require an understanding of legal principles and/or the practiced skill of applying such principles. Appellant Fisher, adds that since a person need not be licensed to practice law to be a lobbyist, lobbying cannot therefore, be considered "the practice of law." Appellees, on the other hand, maintain that the Act does, indeed, regulate the "practice of law" insofar as the services they provide as attorneys to their clients constitute "lobbying" as defined...