William Penn Sch. Dist. v. Pa. Dep't of Educ.
| Decision Date | 26 August 2020 |
| Docket Number | No. 587 M.D. 2014,587 M.D. 2014 |
| Citation | 243 A.3d 252 |
| Parties | WILLIAM PENN SCHOOL DISTRICT; Panther Valley School District; The School District of Lancaster ; Greater Johnstown School District; Wilkes-Barre Area School District; Shenandoah Valley School District; Jamella and Bryant Miller, parents of K.M., a minor; Sheila Armstrong, parent of S.A., minor; Tyesha Strickland, parent of E.T., minor; Angel Martinez, parent of A.M., minor; Barbara Nemeth, parent of C.M., minor; Tracey Hughes, parent of P.M.H., minor; Pennsylvania Association of Rural and Small Schools ; and The National Association for the Advancement of Colored People-Pennsylvania State Conference, Petitioners v. Pennsylvania DEPARTMENT OF EDUCATION; Joseph B. Scarnati III, in his official capacity as President Pro-Tempore of the Pennsylvania Senate; Bryan Cutler, in his official capacity as the Speaker of the Pennsylvania House of Representatives; Tom W. Wolf, in his official capacity as the Governor of the Commonwealth of Pennsylvania; Pennsylvania State Board of Education; and Pedro Rivera, in his official capacity as the Acting Secretary of Education, Respondents |
| Court | Pennsylvania Commonwealth Court |
243 A.3d 252
WILLIAM PENN SCHOOL DISTRICT; Panther Valley School District; The School District of Lancaster ; Greater Johnstown School District; Wilkes-Barre Area School District; Shenandoah Valley School District; Jamella and Bryant Miller, parents of K.M., a minor; Sheila Armstrong, parent of S.A., minor; Tyesha Strickland, parent of E.T., minor; Angel Martinez, parent of A.M., minor; Barbara Nemeth, parent of C.M., minor; Tracey Hughes, parent of P.M.H., minor; Pennsylvania Association of Rural and Small Schools ; and The National Association for the Advancement of Colored People-Pennsylvania State Conference, Petitioners
v.
Pennsylvania DEPARTMENT OF EDUCATION; Joseph B. Scarnati III, in his official capacity as President Pro-Tempore of the Pennsylvania Senate; Bryan Cutler, in his official capacity as the Speaker of the Pennsylvania House of Representatives; Tom W. Wolf, in his official capacity as the Governor of the Commonwealth of Pennsylvania; Pennsylvania State Board of Education; and Pedro Rivera, in his official capacity as the Acting Secretary of Education, Respondents
No. 587 M.D. 2014
Commonwealth Court of Pennsylvania.
Filed: August 26, 2020
Brad M. Elias, New York, NY, Daniel Urevick-Ackelsberg, Philadelphia, and Maura McInerney, Philadelphia, and Michael Churchill, Philadelphia, for Petitioners.
Patrick M. Northen, Philadelphia, for Respondent Speaker of the House Bryan Cutler.
Sarah A. Hyser-Staub, Harrisburg, for Chairman Stanley E. Saylor.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
OPINION BY JUDGE COHN JUBELIRER
Presently before the Court are applications for protective orders filed by Respondent Bryan Cutler, Speaker of the Pennsylvania House of Representatives, and Stanley E. Saylor, a nonparty and Chairman of the Pennsylvania House of Representatives Appropriations Committee, seeking to prevent Petitioners from taking their depositions. Upon consideration of the parties’ arguments,1 the Court grants the applications to the extent Petitioners are prohibited from deposing Speaker Cutler or Chairman Saylor at this time. However, the Court will provide Petitioners with leave of court to serve written discovery on the limited topics identified herein.
I. BACKGROUND
By way of very brief background, Petitioners initiated this action in 2014 challenging the constitutionality of funding public education within the Commonwealth. Following a remand by the Pennsylvania Supreme Court in September 2017, the Court established a case management schedule to move this matter toward
trial, which had to be extended numerous times. As fact discovery was finally winding down, although the parties had been working diligently at discovery and largely handling any disputes internally for years, given the nature of the case, not surprisingly, a few discovery issues arose that required court intervention. These discovery disputes involved whether certain high ranking government officials, most of whom are Respondents in this action, would be required to sit for a deposition.
Recently, the Court disposed of various applications involving Governor Tom W. Wolf and Secretary of Education Pedro Rivera. William Penn Sch. Dist. v. Pa. Dep't of Educ. (Pa. Cmwlth., No. 587 M.D. 2014, filed July 24, 2020). There, Speaker Cutler sought to compel the deposition of both in their official capacities, whereas Petitioners sought to compel Secretary Rivera to testify as to his time as former superintendent of The School District of Lancaster, a Petitioner in this matter. Governor Wolf and Secretary Rivera also filed applications, similar to the instant Applications, seeking to prevent, or at least limit, their respective depositions. Although some of the legal issues differed from those presented here, one issue remained common: what were the parameters of deposing a high ranking government official.
Ultimately, the Court held Governor Wolf's testimony was protected by the chief executive privilege and Speaker Cutler did not show that "this [wa]s an ‘extreme case’ and [that] there [wa]s a compelling interest or need for the testimony." Id. , slip op. at 12. Specifically, the Court explained that many of the topics of inquiry identified related to general information that was obtainable from other sources. Id. at 13. As for public statements Governor Wolf made, which Governor Wolf conceded would not be privileged, the Court held that Speaker Cutler could utilize less intrusive methods of discovery to obtain that information and thus, the Court granted Speaker Cutler leave of court to serve written discovery requests related to that topic. Id. at 13-14.
With regard to Secretary Rivera, the Court held Speaker Cutler could not depose Secretary Rivera about general information on appropriating funds and passing legislation, similar to the Court's holding involving Governor Wolf. Id. at 17. However, the Court permitted Speaker Cutler to depose Secretary Rivera about his public statements primarily because the Court was already requiring Secretary Rivera to sit for a deposition to respond to questions by Petitioners about his time as superintendent at one of the Petitioner School Districts. Id. at 18, 20-21.
With this background in mind, the Court turns to the instant Applications.
A. Speaker Cutler's Application
On July 7, 2020, Speaker Cutler filed his Application, alleging as follows. On June 22, 2020, Petitioners served a notice of deposition on Speaker Cutler, which is the same date he was substituted as a Respondent to replace former Speaker Michael C. Turzai who resigned.2 According to Speaker Cutler, Petitioners did not identify the areas about which they intended to question him, but Speaker Cutler suspects they are the same areas about which Petitioners wanted to depose former Speaker Turzai, which are as follows:
a. The role that public education plays in preparing students to gain the skills,
knowledge, and experiences needed to be college and career ready and informed citizens.
b. The cost of educating students in Pennsylvania to meet the state standards set by the Legislature and/or the State Board of Education.
c. Whether the resources provided to school districts in Pennsylvania are sufficient for students in each district to meet performance expectations and ensure that students are college and career ready.
d. Whether current levels of academic achievement for students meet the goals established by the Commonwealth.
e. Methods of funding public education in Pennsylvania, including adoption and implementation of school funding formulas and discretionary funding for individual school districts.
f. Funding disparities between high-wealth and low-wealth school districts.
g. Whether funding issues or resource deficiencies in individual school districts were caused in whole or in part by local mismanagement of funds.
h. Whether school districts have failed to make optimal use of their various taxing powers to generate funding for schools.
i. Whether the costing-out study was based on valid methodology and whether its conclusions were correct.
j. The Basic Education Funding Commission.
k. The Special Education Funding Commission.
l. Adoption and revision of Pennsylvania's academic assessments, including the Keystone Exams, the Common Core Standards, and the P[ennsylvania System of School Assessment].
m. Knowledge of the previous topics as it relates to school districts within their [legislative] districts.
n. Non-privileged statements and communications concerning the previous topics.
(Cutler Application ¶ 6.)
Speaker Cutler maintains that his testimony would be protected by legislative privilege under the Speech and Debate Clause of the Pennsylvania Constitution, Pa. Const., art. 2, § 15, as any knowledge he has would arise from his role as a legislator. He urges the Court to follow League of Women Voters v. Commonwealth , 177 A.3d 1010 (Pa. Cmwlth. 2017) ( League of Women Voters I ), and apply the legislative privilege to him. He further contends that several of the subject areas relate to topics that are geared towards educators, which he is not.
Speaker Cutler acknowledges that two House staff members, David Donley, who is executive director of the House Appropriations Committee, and Jeffrey Miller, who is a budget analyst for the House Appropriations Committee, were identified as potential fact witnesses.3 However, he asserts this does not waive his privilege. He argues that United States Supreme Court precedent requires explicit and unequivocal renunciation of the privilege,
United States v. Helstoski , 442 U.S. 477, 491, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979), which did not occur here. He further argues that Petitioners misunderstand the purpose of the staffers’ prospective testimony. Speaker Cutler states that they will not be asked about matters said or done in the General Assembly, or their opinions about the reasonableness of legislative action. Rather, according to Speaker Cutler, the "testimony will be to marshal for the Court some of the numerous legislation that has been implemented" and "publicly available data regarding state and local spending on the public school system." (Cutler Memorandum of Law at 9-10.) Moreover, Speaker Cutler notes that three legislators are listed as trial witnesses for Petitioners, and all of them have indicated during depositions that, despite their willingness to testify on Petitioners’ behalf, they are not waiving their legislative privilege.
Speaker Cutler asserts that Powell v. Ridge , 247 F.3d 520 (3d Cir. 2001), which Petitioners cite, is distinguishable, as in that case, the legislative witnesses intervened as defendants. As such, the Third Circuit Court of Appeals held they cannot assert legislative immunity as both a shield and a sword. In contrast, here, Speaker Cutler is an involuntary party, having been named by Petitioners as a respondent.
To the extent any of the subject areas may fall outside the scope of legislative immunity, Speaker Cutler argues he has no...
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