Wolf v. Scarnati, 070120 PASC, 104 MM 2020

Docket Nº:104 MM 2020
Opinion Judge:WECHT JUSTICE
Party Name:THE HONORABLE TOM WOLF, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, Petitioner v. SENATOR JOSEPH B. SCARNATI, III, SENATOR JAKE CORMAN, AND SENATE REPUBLICAN CAUCUS, Respondents
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. DOUGHERTY JUSTICE Justices Baer, Todd and Donohue join the opinion. SAYLOR CHIEF JUSTICE Justice Mundy joins this dissenting opinion.
Case Date:July 01, 2020
Court:Supreme Court of Pennsylvania

THE HONORABLE TOM WOLF, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, Petitioner

v.

SENATOR JOSEPH B. SCARNATI, III, SENATOR JAKE CORMAN, AND SENATE REPUBLICAN CAUCUS, Respondents

No. 104 MM 2020

Supreme Court of Pennsylvania

July 1, 2020

SUBMITTED: July 1, 2020

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

WECHT JUSTICE

Our government's response to the challenges presented by the COVID-19 pandemic has engendered passionate arguments that span the political spectrum. Pennsylvanians have watched with great interest as the political branches of our Commonwealth's government, represented by the Governor and the General Assembly, have debated how best to respond to this novel coronavirus. In light of the intense public interest in this issue, and because "[s]unlight is said to be the best of disinfectants, "1 we find it necessary to make clear what this Court is, and is not, deciding in this case. We express no opinion as to whether the Governor's response to the COVID-19 pandemic constitutes wise or sound policy. Similarly, we do not opine as to whether the General Assembly, in seeking to limit or terminate the Governor's exercise of emergency authority, presents a superior approach for advancing the welfare of our Commonwealth's residents. Instead, we decide here only a narrow legal question: whether the Pennsylvania Constitution and the Emergency Services Management Code permit the General Assembly to terminate the Governor's Proclamation of Disaster Emergency by passing a concurrent resolution, without presenting that resolution to the Governor for his approval or veto.

I. The Governor's Proclamation of Disaster Emergency

On March 6, 2020, in response to the COVID-19 pandemic, Governor Tom Wolf issued a Proclamation of Disaster Emergency ("Proclamation")2 pursuant to 35 Pa.C.S. § 7301(c), a provision of the Emergency Management Services Code, id. §§ 7101, et seq.3 Section 7301(c) states, in full:

(c) Declaration of disaster emergency.--A disaster emergency shall be declared by executive order or proclamation of the Governor upon finding that a disaster has occurred or that the occurrence or the threat of a disaster is imminent. The state of disaster emergency shall continue until the Governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist and terminates the state of disaster emergency by executive order or proclamation, but no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency. All executive orders or proclamations issued under this subsection shall indicate the nature of the disaster, the area or areas threatened and the conditions which have brought the disaster about or which make possible termination of the state of disaster emergency. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and, unless the circumstances attendant upon the disaster prevent or impede, shall be promptly filed with the Pennsylvania Emergency Management Agency and the Legislative Reference Bureau for publication under Part II of Title 45 (relating to publication and effectiveness of Commonwealth documents).

35 Pa.C.S. § 7301(c) (emphasis added). The Governor's Proclamation activated many emergency resources. To give just a few examples, it: transferred funds to the Pennsylvania Emergency Management Agency; suspended provisions of regulatory statutes relating to the operation of businesses, health, education, and transportation; and mobilized the Pennsylvania National Guard.

On March 19, 2020, consistent with his earlier declaration of a disaster emergency, the Governor issued an order closing businesses that were not considered life-sustaining.4 Four Pennsylvania businesses and one individual challenged the Governor's Order, alleging that it violated the Emergency Management Services Code and various constitutional provisions. On April 13, 2020, in an exercise of our King's Bench jurisdiction, see 42 Pa.C.S. § 502, we ruled that the Governor's order complied with both the statute and our Constitutions. Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020).

On June 3, 2020, the Governor renewed the Disaster Emergency Proclamation for an additional ninety days.[5] On June 9, 2020, the Pennsylvania Senate and the Pennsylvania House of Representatives adopted a concurrent resolution ordering the Governor to terminate the disaster emergency. The resolution provides, in relevant part: Whereas, pursuant to Section 12 of Article I of the Constitution of Pennsylvania, the power to suspend laws belongs to the legislature; and

Whereas, 35 Pa.C.S. § 7301(c) authorizes the General Assembly by concurrent resolution to terminate a state of disaster emergency at any time; and

Whereas, 35 Pa.C.S. § 7301(c) provides that upon the termination of the declaration by concurrent resolution of the General Assembly, "the Governor shall issue an executive order or proclamation ending the state of disaster emergency";

Therefore be it

Resolved (the Senate concurring) that the General Assembly, in accordance with 35 Pa.C.S. § 7301(c) and its Article I, Section 12 power to suspend laws, hereby terminate[s] the disaster emergency declared on March 6, 2020, as amended and renewed, in response to COVID-19; and be it further

Resolved, that upon adoption of this concurrent resolution by both chambers of the General Assembly, the Secretary of the Senate shall notify the Governor of the General Assembly's action with the directive that the Governor issue an executive order or proclamation ending the state of disaster emergency in accordance with this resolution and 35 Pa.C.S. § 7301(c)[.]

H.R. Con. Res. 836, 2020 Gen. Assemb., Reg. Sess. 2019-20 (Pa. 2020) (capitalization modified).6 On June 10, 2020, the Secretary of the Senate informed the Governor of the concurrent resolution, writing: "I am notifying you of the General Assembly's action and the directive that you issue an executive order o[r] proclamation ending the state of disaster emergency in accordance with this resolution and 35 Pa.C.S. § 7301(c)."7

On June 11, 2020, Senate President Pro Tempore Joseph B. Scarnati, III, Senate Majority Leader Jake Corman, and the Senate Republican Caucus (collectively, the "Senators") filed a Petition for Review in the Nature of a Complaint in Mandamus in the Commonwealth Court, seeking to enforce H.R. 836. See Scarnati v. Wolf, 344 MD 2020. One day later, the Governor filed in this Court an Application for the Court to Exercise Jurisdiction Pursuant to Its King's Bench Powers and/or Powers to Grant Extraordinary Relief. On June 17, 2020, we granted King's Bench jurisdiction and stayed the Commonwealth Court proceedings. Order, 104 MM 2020, 6/17/2020.

In his Application, the Governor argues that this Court should declare H.R. 836 null and void under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-41. We now address the merits of the Governor's Application and the Senators' Briefs.8

II. Presentment

This dispute concerns whether the concurrent resolution is subject to the presentment requirement embodied in the Pennsylvania Constitution. In common parlance, the question is whether H.R. 836 is subject to the Governor's veto power. Our Commonwealth's Constitution provides: Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.

Pa. Const. art. III, § 9. That text has remained virtually unchanged since 1790. See Pa. Const. of 1790, art. I, § 23, Pa. Const. of 1838, art. I, § 24, Pa. Const. of 1874, art. III, § 26. Our Constitution is clear: all concurrent resolutions, except in three narrow circumstances identified below, must be presented to the Governor for his approval or veto. To allow a concurrent resolution that does not fit into one of the exceptions to take effect without presentment would be to authorize a legislative veto. In Commonwealth v. Sessoms, 532 A.2d 775 (Pa. 1987), we adopted the reasoning of the Supreme Court of the United States in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), and found that the provisions of Article III, Section 9 "are integral parts of the constitutional design for the separation of powers." Sessoms, 532 A.2d at 778 (quoting Chadha, 462 U.S. at 946). "[U]nder our Constitution[, ] the legislative power, even when exercised by concurrent resolution, must be subject to gubernatorial review." Id. at 782; see also W. Shore Sch. Dist. v. Pa. Labor Relations Bd., 626 A.2d 1131, 1135-36 (Pa. 1993). Because the Senators contend that H.R. 836 fits into one of the three recognized exceptions to presentment, we examine those exceptions in turn.

A. The Exceptions to Presentment

The first exception to presentment is obvious from the plain text of Article III, Section 9. Any concurrent resolution "on the question of adjournment" need not be presented to the Governor. No party avers that H.R. 836 involves adjournment.

The second exception to presentment is a concurrent resolution proposing a constitutional amendment. The Constitution itself, specifically Article XI, Section 1, provides the "complete and detailed...

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