Stilp v. Com., General Assembly
| Citation | 940 A.2d 1227 |
| Decision Date | 27 December 2007 |
| Docket Number | No. 80 MAP 2006.,No. 76 MAP 2006.,76 MAP 2006.,80 MAP 2006. |
| Parties | Gene STILP, Appellant v. COMMONWEALTH of Pennsylvania, GENERAL ASSEMBLY, Jack Wagner, Auditor General of the Commonwealth of Pennsylvania, Department of Auditor General, Robert C. Jubelirer, David Brightbill, Robert Mellow, John. M. Perzel, Sam Smith, H.W. Deweese, Leadership of the General Assembly, Noah Wenger, Legislative Audit Advisory Commission, and Robert P. Casey, Jr., Treasurer of the Commonwealth of Pennsylvania, Appellees. Gene Stilp v. Commonwealth of Pennsylvania, General Assembly, Jack Wagner, Auditor General of the Commonwealth of Pennsylvania, Department of Auditor General, Robert C. Jubelirer, David Brightbill, Robert Mellow, John M. Perzel, Sam Smith, H.W. Deweese, Leadership of the General Assembly, Noah Wenger, Legislative Audit Advisory Commission, and Robert P. Casey, Jr., Treasurer of the Commonwealth of Pennsylvania. Appeal of: Senators Jubelirer, Brightbill, and Wenger. |
| Court | United States State Supreme Court of Pennsylvania |
Linda J. Shorey, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, George A. Bibikos, Harrisburg, for Senators Jubelirer, Brightbill and Wenger.
Gene Stilp, pro se.
Sally Ann Ulrich, PA Treasury Dept., for Robert P. Casey, Jr.
Thomas Walter Dymek, Philadelphia, PA, for General Assembly, et al.
Robert Forman Teplitz, Harrisburg, for Dept. of Auditor General and Jack Wagner.
OPINION
The two issues presented in these cross-appeals are: (1) whether a taxpayer, Gene Stilp, has standing to seek, inter alia, a declaratory judgment that the Commonwealth's Auditor General has the authority and duty to audit the financial accounts of the General Assembly (the legislators' appeal); and (2) if the taxpayer does have standing to seek such relief, whether the Auditor General has the authority to audit the General Assembly's financial accounts (Stilp's appeal). The Commonwealth Court, sitting en banc, determined that Stilp had taxpayer standing to bring this action, but ultimately concluded that no constitutional or statutory authority existed to support a declaration that the Auditor General possesses the authority to audit the financial accounts of the General Assembly. For the following reasons, we find that the Commonwealth Court erred regarding the question of standing. This finding, in turn, makes it unnecessary to pass upon Stilp's merits claim. Accordingly, we affirm the order below, but on standing grounds.
On October 11, 2005, Stilp, acting pro se, filed a petition for review in the Commonwealth Court seeking a declaratory judgment that the Auditor General has the authority to audit the General Assembly, and that the Legislative Audit Advisory Commission ("Commission")1 was unconstitutionally created. Moreover, Stilp requested that the Court: (1) compel the Auditor General to audit the General Assembly; (2) compel the General Assembly's leadership and members of the Commission to cooperate with such an audit; (3) award him the costs of the lawsuit; and (4) grant him further equitable or declaratory relief as deemed necessary by the Court. Following the filing of preliminary objections by the governmental parties,2 Stilp filed an amended petition for review on November 29, 2005.3 The governmental parties responded by filing amended preliminary objections arguing, inter alia, that: Stilp lacks standing to bring this action; an attempt by the Auditor General to audit the General Assembly would violate the doctrine of separation of powers; and the yearly audit conducted by the auditing firm retained by the Commission satisfies the constitutional auditing requirement set forth in Article VIII, Section 10 of the Pennsylvania Constitution.4 The case was then submitted on the briefs without oral argument to the Commonwealth Court.
On April 24, 2006, the Commonwealth Court issued an en banc published opinion and order sustaining the collective preliminary objections and dismissing Stilp's petition. Stilp v. Commonwealth, 898 A.2d 36 (Pa.Cmwlth.2006). The Commonwealth Court initially determined that Stilp possessed the requirements for taxpayer standing to bring this action, citing Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). The court ultimately concluded, however, that Stilp failed to provide either constitutional or statutory authority supporting the position that the Auditor General can, and must, audit the General Assembly. In addition, the court concluded that the separation of governmental powers doctrine prohibits such an audit.
In support of these conclusions, the Commonwealth Court relied heavily on an official opinion issued in 1966 by Edward Friedman, the Acting Attorney General of Pennsylvania at that time. Specifically, the opinion addressed a question posed to the Attorney General by the Auditor General at that time: whether the Department of the Auditor General had the authority to audit the appropriations for employees of all legislative departments. The Attorney General's opinion concluded that the Auditor General did not have that authority because there was no constitutional or statutory provision permitting such an audit. The opinion further concluded that such action by the Auditor General would violate the separation of powers doctrine:
A unilateral action such as an audit of any expenses of the offices of the General Assembly by the Auditor General would most certainly be an intrusion upon the prerogative of a coordinate branch of the State Government and the violation of that fundamental doctrine inherent in our form of government.
Official Opinion No. 270, Opinions of the Attorney General, at 47 (July 15, 1966).
The Commonwealth Court correctly acknowledged that this opinion was forty years old and, more importantly, that it was issued before Article VIII, Section 10 of the Pennsylvania Constitution was adopted. The court noted, however, that the reasoning supporting the Attorney General's opinion is not contravened by Article VIII, Section 10 because the constitutional provision does not specify who is to conduct the audits of the financial affairs of the Commonwealth's departments and, notably, "does not give any inherent power to the Auditor General to audit the General Assembly." Stilp, 898 A.2d at 41. Relying on the legislative history of Article VIII, Section 10, the Commonwealth Court determined that the delegates of the Constitutional Convention consciously decided to leave open the details of what party could audit the financial accounts of the General Assembly. Therefore, according to the court, the General Assembly properly filled that void by enacting 71 P.S. §§ 1189.1-1189.2.
Section 1189.1, entitled "Audits of affairs of the General Assembly, legislative agencies," explicitly states that the Commission is entrusted with the sole authority over the process of auditing the General Assembly's finances. Specifically, the statutory provision reads as follows:
The financial affairs of the General Assembly and its legislative service agencies shall be audited by a certified public accountant to be retained by the Legislative Audit Advisory Commission. At least one such audit shall be made each year; however, special audits may be made when they appear necessary in the judgment of the Legislative Audit Advisory Commission.
71 P.S. § 1189.1. Section 1189.2, entitled "Legislative Audit Advisory Commission," establishes the Commission, how its members are chosen, and its duties. The provision provides in full:
(a) There shall be an independent advisory commission, to be known as the Legislative Audit Advisory Commission, which shall consist of eight members, a majority and a minority member of the House of Representatives and two public members appointed by the Speaker of the House of Representatives, and a majority and a minority member of the Senate and two public members appointed by the President Pro Tempore of the Senate. The commission shall organize annually by electing from among themselves a chairman and a secretary.
(b) Except for the public members of the commission who shall receive a compensation of $100 for each day the commission shall meet, no other member of the commission shall receive any compensation but all members shall receive traveling and actual expenses incurred as members of the commission.
(c) The powers and duties of the commission shall be to:
(1) Examine the standards of audits performed under the provisions of section 10 of Article VIII, of the Constitution of Pennsylvania, and recommend measures for the improvement of pre-auditing and post-auditing of the financial affairs of the Commonwealth.
(2) Report annually recommendations and suggested legislation, if any, for the improvement of auditing in the Commonwealth, and particularly as it pertains to the Legislature.
71 P.S. § 1189.2.
Moreover, the Commonwealth Court acknowledged that Section 402 of the Fiscal Code charges the Auditor General with the responsibility of auditing the financial affairs of Commonwealth departments, with the exception of the Department of the Auditor General.5 The court, however again relied on the Attorney General's official opinion of 1966, which concluded that Section 402 of the Fiscal Code did not empower the Auditor General to audit the accounts of the General Assembly, and thus dismissed the, notion that Section 402 was controlling. The Commonwealth Court also emphasized that 71 P.S. §§ 1189.1-1189.2 grants sole authority over auditing the General Assembly to the Commission, in essence concluding that those statutory provisions trump the Fiscal Code.6
Judge Robert E. Simpson, Jr., authored a concurring and dissenting opinion. Judge Simpson agreed with the majority's conclusion that Stilp failed to set forth any legal basis for, his position that the Auditor General can audit the General Assembly. The...
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