Gmerek v. State Ethics Com'n

• Decision Date: 18 May 2000
• Citation: 751 A.2d 1241
• Parties: Richard J. GMEREK and Charles I. Artz, Petitioners, v. STATE ETHICS COMMISSION and Honorable Mike Fisher, Attorney General, Respondents.
• Court: Pennsylvania Commonwealth Court

751 A.2d 1241

Richard J. GMEREK and Charles I. Artz, Petitioners, v. STATE ETHICS COMMISSION and Honorable Mike Fisher, Attorney General, Respondents.

Commonwealth Court of Pennsylvania.

Argued October 6, 1999.

Decided May 18, 2000.

John H. Estey, Philadelphia, for petitioners.

Robin M. Hittie, Harrisburg, for respondent, State Ethics Com'n.

John P. Krill, Jr., Harrisburg, for intervenor, Mark R. Corrigan.

Before DOYLE, President Judge, and COLINS, J., McGINLEY, J., SMITH, J., KELLEY, J., FLAHERTY, J. and LEADBETTER, J.

KELLEY, Judge.

Presently before this Court for disposition are the cross-motions for summary judgment filed by Richard J. Gmerek and Charles I. Artz (Petitioners), the State Ethics Commission (Respondent Commission), and the Honorable Mike Fisher, Attorney General (Respondent Attorney General), and the petition for judgment on the pleadings filed by Mark R. Corrigan, Secretary of the Pennsylvania Senate (Intervenor) to the petition for review in the nature of a complaint for declaratory judgment filed in our original jurisdiction by Petitioners.¹

On October 15, 1998, Governor Ridge signed the Lobbying Disclosure Act, 65 Pa.C.S. §§ 1303-1311 (Act), into law. The Act was to take effect on August 1, 1999 and its relevant provisions may be summarized as follows. Section 1302 of the Act² sets forth the intent of the General Assembly in its enactment, and the jurisdiction of the General Assembly and the Executive Department of the Commonwealth to regulate persons engaged in lobbying activities as defined in the Act. Section 1303 of the Act³ sets forth definitions of the persons and activities governed by its provisions. Section 1304 of the Act⁴ requires the registration of both lobbyists and principals. Section 1305 of the Act⁵ sets forth reporting requirements for lobbyists. Section 1307 of the Act⁶ outlines certain prohibitions relating to those engaged in lobbying. Section 1308 of the Act⁷ vests the administration and enforcement of the Act in Respondent Commission and Respondent Attorney General. Section 1309 of the Act⁸ sets forth both civil and criminal penalties that may be imposed for noncompliance with its provisions. Section 1310 of the Act⁹ requires the payment of a biennial fee of $100.00 to Respondent Commission by those compelled to register as lobbyists or principals under its provisions. Finally, Section 1311 of the Act¹⁰ contains a unique severability clause which states that if a provision of the Act is held invalid as an improper regulation of the "practice of law", the remaining provisions of the Act are void.

On May 26, 1999, Petitioners filed the instant petition for review seeking declaratory relief. In the petition, Petitioners allege that they are members of the Pennsylvania bar who on behalf of their clients engage in "lobbying", as that term is defined in the Act. Petitioners also allege that because the Act purports to regulate the "practice of law" with respect to these activities, it violates Article 5, Section 10 of the Pennsylvania Constitution¹¹ which vests all authority over the regulation of the "practice of law" with the Pennsylvania Supreme Court. In particular, Petitioners allege that the Act impermissibly regulates the "practice of law" in the following respects:

(1) the reporting requirements of Section 1305(c) of the Act, relating to the retention and disclosure of records, could require Petitioners to disclose their clients' proprietary and confidential information in violation of Rule 1.6 of the Rules of Professional Conduct¹² and the statutory attorney-client privilege contained in Section 5928 of the Judicial Code, 42 Pa.C.S. § 5928;¹³

(2) the prohibition of contingent compensation in Section 1307(a) of the Act directly contravenes Rule 1.5(c) of the Rules of Professional Conduct;¹⁴

(3) the provisions of Section 1309 of the Act granting Respondent Commission and Respondent Attorney General the authority to impose sanctions for noncompliance conflicts with the Pennsylvania Supreme Court's authority to discipline attorneys;

(4) the payment of a biennial fee as required by Section 1310 of the Act could bar Petitioners from practicing law as a lobbyist and thereby conflict with the Pennsylvania Supreme Court's authority to regulate the practice of law; and

(5) the provision of Section 1307(b) prohibiting lobbyists from serving as officers in a political candidate's committee or political action committee is a restriction beyond those imposed on attorneys by the Pennsylvania Supreme Court.

Based on the foregoing, Petitioners ask this Court to declare that the Act improperly regulates the "practice of law", declare the Act void pursuant to the provisions of Section 1311(b) of the Act, and grant such further relief as may be just under the circumstances.¹⁵

On June 25, 1999, Respondent Commission and Respondent Attorney General each filed an answer and new matter to the petition for review in which they allege, inter alia, that: the provisions of the Act do not impermissibly regulate the practice of law; the Act does not infringe upon the Supreme Court's authority to prescribe general rules for admission to the bar and to practice law under Article 5, Section 10 of the Pennsylvania Constitution; and Petitioners have failed to state a cause of action upon which relief may be granted.¹⁶ On July 8, 1999, Petitioners filed an answer to the new matter raised by Respondents.

On July 26, 1999, Respondent Commission filed a motion for summary judgment in which it alleges, inter alia, that: there are no material issues of fact; the Act regulates lobbying which is not the "practice of law"; and it is entitled to judgment in its favor as a matter of law.

On August 2, 1999, Petitioners filed a motion for summary judgment in which they allege that the provisions of the Act impermissibly intrude upon the Pennsylvania Supreme Court's authority to regulate the "practice of law" pursuant to Article 5, Section 10 of the Pennsylvania Constitution in that: Section 1302(b) of the Act specifically provides that the Act's regulation of lobbying activities, as defined in the Act, "shall prevail over any regulation of professional activity when that activity constitutes lobbying"; the prohibition against contingent compensation contained in Section 1307(a) of the Act directly contravenes Rule 1.5(c) of the Rules of Professional Conduct; the required retention and disclosure of records contained in Section 1305(c) of the Act could require the disclosure of confidential information in violation of Rule 1.6 of the Rules of Professional Conduct; and the provisions of Section 1309 of the Act which authorizes the imposition of sanctions directly conflicts with the Supreme Court's exclusive authority to discipline attorneys and regulate the practice of law. Based on the provisions of Section 1311(b) of the Act, Petitioners alleged that the Act must be declared void.

On August 11, 1999, Respondent Attorney General filed a motion for summary judgment in which he alleges, inter alia, that: there is no genuine issue of material fact; the Act does not impermissibly regulate the practice of law nor does it infringe upon the Supreme Court's exclusive authority to prescribe rules governing the practice of law; and he is entitled to judgment as a matter of law.

On August 18, 1999, Intervenor filed a motion for judgment on the pleadings in which he alleges, inter alia, that: there are no issues of material fact; and the Act does not impermissibly regulate the "practice of law" as it regulates the activities of lobbyists and not lawyers. In sum, in the instant action Petitioners ask this Court to declare the provisions of the Act void because these provisions violate Article 5, Section 10 of the Pennsylvania Constitution by impermissibly infringing upon the Pennsylvania Supreme Court's exclusive authority to regulate the "practice of law" in this Commonwealth. As the parties agree that there are no material facts in dispute, this is the sole legal issue to be determined in disposing of the cross-motions for summary judgment filed by Petitioners, Respondent Commission and Respondent Attorney General, and the petition for judgment on the pleadings filed by Intervenor.¹⁷

We initially note that the provisions of the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, govern petitions for declaratory judgments. Ronald H. Clark, Inc. v. Township of Hamilton, 128 Pa.Cmwlth. 31, 562 A.2d 965 (1989). Declaratory judgments are not obtainable as a matter of right. Id. Rather, whether a court should exercise jurisdiction over a declaratory judgment proceeding is a matter of sound judicial discretion. Id. Thus, the granting of a petition for a declaratory judgment is a matter lying within the sound discretion of a court of original jurisdiction. Gulnac v. South Butler County School District, 526 Pa. 483, 587 A.2d 699 (1991); Ruszin v. Department of Labor and Industry, 675 A.2d 366 (Pa.Cmwlth. 1996).

Section 7533 of the Declaratory Judgments Act provides, in pertinent part, that "[a]ny person ... whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder." 42 Pa.C.S. § 7533. Under Section 7533, constitutional challenges to a statute's validity, such as that raised in the instant matter, may be decided by declaratory judgment. Parker v. Department of Labor and Industry, 115 Pa.Cmwlth. 93, 540 A.2d 313 (1988), aff'd, 521 Pa. 531, 557 A.2d 1061 (1989).

In addition, as the Pennsylvania Supreme Court has noted:

["]There is a presumption that lawfully enacted legislation is constitutional. Should the constitutionality of legislation be challenged, the challenger must meet the burden of rebutting the presumption of constitutionality by a clear, palpable and plain demonstration that the statute violates a

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