Marcavage v. Rendell

• Decision Date: 20 January 2006
• Citation: 888 A.2d 940
• Parties: Michael MARCAVAGE, Mark Diener, Linda Beckman, Randall Beckman, Susan Startzell, Arlene Elshinnawy and Nancy Major, Petitioners v. Edward G. RENDELL, Governor of the Commonwealth of Pennsylvania, John M. Perzel, Speaker of the Pennsylvania House of Representatives, Robert C. Jubelirer, President Pro Tempore of the Pennsylvania Senate, Honorable Pedro A. Cortes, Secretary of the Commonwealth of Pennsylvania, All in their Official Capacities and not in Their Private Capacities, and Commonwealth of Pennsylvania, Respondents.
• Court: Pennsylvania Supreme Court

888 A.2d 940

Michael MARCAVAGE, Mark Diener, Linda Beckman, Randall Beckman, Susan Startzell, Arlene Elshinnawy and Nancy Major, Petitioners v. Edward G. RENDELL, Governor of the Commonwealth of Pennsylvania, John M. Perzel, Speaker of the Pennsylvania House of Representatives, Robert C. Jubelirer, President Pro Tempore of the Pennsylvania Senate, Honorable Pedro A. Cortes, Secretary of the Commonwealth of Pennsylvania, All in their Official Capacities and not in Their Private Capacities, and Commonwealth of Pennsylvania, Respondents.

Commonwealth Court of Pennsylvania.

Argued September 13, 2005.

Decided December 22, 2005.

Reargument En Banc Denied January 20, 2006.

Aaron D. Martin, Kennett Square, for petitioners.

Amanda L. Smith, Deputy Attorney General, for respondents, Edward G. Rendell, Hon. Pedro A. Cortes, and Pennsylvania.

Jonathan F. Bloom, Philadelphia, for respondent, John M. Perzel.

Linda J. Shorey, Harrisburg, for respondent, Robert C. Jubelirer.

BEFORE: SMITH-RIBNER, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.

OPINION BY Judge SMITH-RIBNER.

Respondents have filed preliminary objections in the nature of a demurrer to Petitioners' amended petition for review filed in the Court's original jurisdiction. Petitioners seek a declaration that the Act of December 3, 2002, P.L. 1176, No. 143 (Act 143) amending Section 2710 of the Crimes Code (ethnic intimidation), 18 Pa.C.S. § 2710, is unconstitutional as violative of the legislative process mandated by Article III, Sections 1, 2, 3 and 4 of the Pennsylvania Constitution (Constitution). They also seek to enjoin enforcement of Act 143.

The legislative process that preceded the enactment of Act 143 is undisputed. Following is a brief summary, however, of amendments to the Act before it was signed into law. Act 143 began as House Bill No. 1493 (HB 1493) introduced on May 2, 2001 and titled "An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, providing for the criminal offense of agricultural crop destruction." 2001 Legislative Journal-House, May 2, 2001, pp. 1015-1016. During its third consideration on June 4, 2001, the full House amended the title to read: "An Act Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, FURTHER PROVIDING FOR AGRICULTURAL VANDALISM; AND providing for the criminal offense of agricultural crop OR LIVESTOCK destruction." HB 1493, Printer's No.2087. On June 4, 2001, the House passed the amended version and sent it to the Senate.

During its third consideration, the full Senate deleted language in full passed by the House, replaced it with language expanding the scope of the offense of ethnic intimidation under Section 2710 of the Crimes Code and amended the title of HB 1493 to read: "An Act Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, further providing for ETHNIC INTIMIDATION." HB 1493, Printer's No. 2382. The Senate passed the final version on June 21, 2001. The House voted to concur in the amendment on November 26, 2002. The House Speaker and the Senate President then signed HB 1493; former Governor Mark Schweiker signed the bill into law on December 3, 2002, and Secretary Pedro A. Cortes certified receipt of a true and correct copy of Act 143.¹

Petitioners argue that Act 143 is unconstitutional under Article III, Sections 1, 2, 3 and 4 of the Constitution (Counts I through IV), providing in part:

§ 1. Passage of laws

No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.

§ 2. Reference to committee; printing

No bill shall be considered unless referred to a committee, printed for the use of the members and returned therefrom.

§ 3. Form of bills

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 or compiling the law or a part thereof.

§ 4. Consideration of bills

Every bill shall be considered on three different days in each House.

Petitioners alleged that they were charged with ethnic intimidation against sexual orientation, gender or gender identity of certain individuals participating in a block party in support of gay rights and that although the charges were ultimately dismissed, they intend to engage in the same activity again. In their briefs, Petitioners have withdrawn Count V of the amended petition for review wherein they alleged that passage of Act 143 violated their right to petition government officials and their right to be free from enforcement of imprudent legislation secured by Article I, Sections 1, 20 and 26 of the Constitution. Respondents contend that Petitioners have failed to state a claim for which relief may be granted. The House Speaker and the Senate President additionally contend that Petitioners' challenge to the constitutionality of Act 143 is non-justiciable under the separation of powers doctrine, which has been implemented by the enrolled bill doctrine² and the political question doctrine, and under the Speech and Debate Clause of Article II, Section 15 of the Constitution. None of Respondents raised an objection to Petitioners' standing to file their action.

The rule is well settled that in ruling upon preliminary objections, the courts must accept as true all well-pleaded allegations of material fact as well as all of the inferences reasonably deducible from the facts pleaded. Department of General Services v. Board of Claims, 881 A.2d 14 (Pa.Cmwlth.2005). For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party. North-Central Pennsylvania Trial Lawyers Ass'n v. Weaver, 827 A.2d 550 (Pa.Cmwlth.2003).

The Court will first address the objection as to the justiciability of Petitioners' challenge. In rejecting the argument that the constitutionality of an act under Article III, Section 1 of the Constitution was not justiciable, the Supreme Court stated in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 176-178, 180, 507 A.2d 323, 332-334 (1986), the following:

To preserve the delicate balance critical to a proper functioning of a tripartite system of government, this Court has exercised restraint to avoid an intrusion upon the prerogatives of a sister branch of government. Pursuant to this principle we have rejected challenges to the procedural regularity of the passage of legislation that has been passed and approved in due form on the grounds that the matter is non-justiciable. Our abstention in this area has been articulated by employing the enrolled bill doctrine ... or a determination that a provision is directory and not mandatory....

... While it is appropriate to give deference to a co-equal branch of government as long as it is functioning within constitutional constraints, it would be a serious dereliction on our part to deliberately ignore a clear constitutional violation.

....

We agree with the Attorney General that we must not inquire into every allegation of procedural impropriety in the passage of legislation. However, where the facts are agreed upon and the question presented is whether or not a violation of a mandatory constitutional provision has occurred, it is not only appropriate to provide judicial intervention, and if warranted a judicial remedy, we are mandated to do no less. (Footnote and citations omitted; emphasis added.)

Article III, Sections 1, 2, 3 and 4 of the Constitution are mandatory directives governing the manner of passing legislation by the General Assembly and not mere general guidelines. See City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003); Pennsylvania School Boards Ass'n, Inc. v. Commonwealth Ass'n of School Administrators, 569 Pa. 436, 805 A.2d 476 (2002). Further, the underlying legislative history of Act 143 is undisputed. Under Consumer Party, therefore, the constitutionality of Act 143 under Article III, Sections 1, 2, 3 and 4 is justiciable. See also Parker v. Department of Labor and Industry, 115 Pa.Cmwlth. 93, 540 A.2d 313 (1988) (holding that enrolled bill doctrine did not preclude this Court from reviewing claim of failure to comply with Article III, Section 3); Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108 (Pa.Cmwlth.1998), aff'd, 562 Pa. 632, 757 A.2d 367 (2000) (holding that claims of failure to comply with Article III, Sections 1, 2, 3, 4 and 5 were not barred by the enrolled bill and political question doctrines and Speech and Debate Clause).

Petitioners argue that Act 143 is unconstitutional under Article III on the following grounds: the original purpose of HB 1493 was changed when the Senate deleted the language providing for the criminal offense of agricultural crop and livestock destruction and added the language expanding the scope of the criminal offense of ethnic intimidation (Section 1); the amendment to HB 1493 was not re-referred to a committee (Section 2); the title of HB 1493, "further providing for ethnic intimidation," failed to clearly express the actual content of the bill providing protection based on actual or perceived "ancestry, mental or physical disability, sexual orientation, gender or gender identity" (Section 3); and each house failed to consider the amendment to HB 1493 on three separate days (Section 4).

An act of the General Assembly carries a strong presumption of constitutionality, and it will not be declared unconstitutional unless it "clearly, palpably and plainly" violates the Constitution. League of Women Voters of Pennsylvania v. Commonwealth, 692 A.2d 263, 270 (Pa.Cmwlth.1997). All doubts must be resolved in favor of the Court's finding of constitutionality. Commonwealth v. Hendrickson, 555 Pa. 277, 724 A.2d 315 (1999).

The purpose sought to be achieved by Article III, Section 1 is "to put the...