Yocum v. Commonwealth

• Decision Date: 25 May 2017
• Docket Number: No. 74 MM 2015,74 MM 2015
• Citation: 161 A.3d 228
• Parties: Susan A. YOCUM, Petitioner v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA GAMING CONTROL BOARD, Respondent
• Court: Pennsylvania Supreme Court

161 A.3d 228

Susan A. YOCUM, Petitioner

v.COMMONWEALTH of Pennsylvania, PENNSYLVANIA GAMING CONTROL BOARD, Respondent

No. 74 MM 2015

Supreme Court of Pennsylvania.

ARGUED: April 5, 2016

RESUBMITTED: April 26, 2017

DECIDED: May 25, 2017

John J. McNally III, Esq., Scott Thomas Wyland, Esq., Salzmann Hughes, P.C., for Susan A. Yocum, Petitioner.

Bruce Richard Beemer, Esq., Kenneth Lawson Joel, Esq., Kemal A. Mericli, Esq., Pennsylvania Office of Attorney General, Sharon K. Rogers, Esq., Pennsylvania Office of Attorney General, 16th Floor, Strawberry Square, Harrisburg, PA 1712, for Office of Attorney General, Appellate Litigation Section and Pennsylvania Gaming Control Board, Respondent.

Joshua D. Shapiro, Esq., for Office of Attorney General, Appellate Litigation Section, Respondent.

Richard Douglas Sherman, Esq., Pennsylvania Gaming Control Board, for Pennsylvania Gaming Control Board, Respondent.

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

OPINION

JUSTICE DOUGHERTY

We consider the petition for review filed by Susan A. Yocum, Esquire, in this Court's original jurisdiction pursuant to the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101 –1904 (the Gaming Act). Petitioner challenges as unconstitutional certain restrictions imposed upon attorneys who are employed by the Pennsylvania Gaming Control Board (Board), and seeks declaratory and injunctive relief. The Board filed preliminary objections, asserting petitioner lacks standing to pursue her claim, her claim is not yet ripe, and in any event, her claim fails on the merits. We overrule the Board's preliminary objections as to standing and ripeness, but nevertheless conclude petitioner is not entitled to relief on the merits as the restrictions included in the Gaming Act are constitutionally sound.¹

Petitioner is an attorney employed by the Board. At all relevant times, the Gaming Act has set forth various requirements and restrictions applicable to Board members and certain other persons employed by and associated with the Board. When petitioner was first hired in 2008, the Gaming Act prohibited Board employees from soliciting, recommending or accepting employment with a licensed gaming facility for a period of two years after termination of employment with the Board.² The Gaming Act also restricted Board employees from accepting employment with an applicant, licensed entity, affiliate, intermediary subsidiary or holding company of an applicant or licensed entity for one year after termination, and appearing before the Board in any hearing or proceeding for two years after termination.³ In 2010, the Act was amended to, inter alia , specifically identify the executive director, bureau directors and attorneys as types of employees prohibited from appearing before the Board for two years after termination, and also to extend the general one-year prohibition on accepting employment with a licensed gaming entity or an affiliate, intermediary, subsidiary or holding company of an applicant or licensed entity to two years after termination. 4 Pa.C.S. § 1201(h)(13) (as amended 2010). Specifically, Section 1201(h) currently provides in pertinent part as follows:

(h) Qualifications and restrictions.—

* * * *

(8) No member, employee or independent contractor of the board may directly or indirectly solicit, request, suggest or recommend to any applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof or to any principal, employee, independent contractor or agent thereof, the appointment or employment of any person in any capacity by the applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof for a period of two years from the termination of term of office, employment or contract with the board.

* * * *

(13) The following shall apply to an employee of the board whose duties substantially involve licensing, enforcement, development of law, promulgation of regulations or development of policy, relating to gaming under this part or who has other discretionary authority which may affect or influence the outcome of an action, proceeding or decision under this part, including the executive director, bureau directors and attorneys :

(i) The individual may not, for a period of two years following termination of employment, accept employment with or be retained by an applicant or a licensed entity or by an affiliate, intermediary, subsidiary or holding company of an applicant or a licensed entity.

(ii) The individual may not, for a period of two years following termination of employment, appear before the board in a hearing or proceeding or participate in activity on behalf of any applicant, licensee, permittee or licensed entity or on behalf of an affiliate, intermediary, subsidiary or holding company of any applicant, licensee, permittee or licensed entity.

(iii) An applicant or a licensed entity or an affiliate, intermediary, subsidiary or holding company of an applicant or a licensed entity may not, until the expiration of two years following termination of employment, employ or retain the individual. Violation of this subparagraph shall result in termination of the individual's employment and subject the violator to section 1518(c) (relating to prohibited acts; penalties).

(iv) A prospective employee who, upon employment, would be subject to this paragraph must, as a condition of employment, sign an affidavit that the prospective employee will not violate subparagraph (i) or (ii). If the prospective employee fails to sign the affidavit, the board shall rescind any offer of employment and shall not employ the individual.

4 Pa.C.S. § 1201(h)(8) and (13) (emphases added). Petitioner—who holds the position of Assistant Chief Counsel III—is subject to the restrictions identified in Section 1201(h)(8) and (13). See 4 Pa.C.S. § 1201(h)(14.1) ; Petition for Review, Exhibit B.

Petitioner, who now wishes to seek and accept new employment as an attorney representing gaming clients, filed this petition for review requesting: (1) a declaration the restrictions of Section 1208(h) violate Article V, Section 10 of the Pennsylvania Constitution,⁴ which vests in this Court the exclusive authority to govern the practice of law; and (2) a permanent injunction against the enforcement of the challenged restrictions. Specifically, petitioner alleges that, "[a]s a current Gaming Board attorney, [she] desires to seek and accept employment as an attorney representing gaming clients." Amended Petition for Review at ¶ 6. She states she is currently "faced with two equally unappealing and untenable options to leave the employ of the Gaming Board." Id. at ¶ 8.

Option one is to test the Gaming Act's employment provisions by violating them, actively seeking a legal position with a licensee, affiliate or law firm that represents licensees or affiliates knowing that if Petitioner accepted a position and left the Gaming Board, the licensee or affiliate could be subject to administrative penalties, Petitioner's position, by statute, would be terminated and Petitioner could be subject to sanction for breach of fiduciary duty to clients for placing Petitioner's interests before her client's interests. Thus, Petitioner would be risking harm to her reputation and her ability to continue practicing law in the Commonwealth and the licensees and affiliates would be risking administrative penalty.

The other option for Petitioner is to forgo the practice of law in her area of expertise, or with any law firm that represents any licensees or their affiliates.

Id. at ¶¶ 9, 12 (citations omitted).

The Board filed preliminary objections to the petition for review, pursuant to Pa.R.C.P. 1028(a)(4), alleging insufficiency of the pleading in various respects. The Board claims (1) petitioner lacks standing to challenge so-called "post-employment" restrictions of the Act,⁵ as she is still employed by the Board, and has not yet been aggrieved by their enforcement against her; (2) petitioner's claims are not yet ripe because she is still an employee of the Board and enforcement of post-employment restrictions against her is hypothetical and speculative; (3) petitioner's request for pre-enforcement review is premature; (4) the Rules of Professional Conduct allow protections against conflicts of interest as provided in the Act; and (5) the Act's post-employment restrictions do not violate the separation of powers as circumscribed in Article V, Section 10(c).

A preliminary objection to the legal sufficiency of a pleading (a demurrer) raises questions of law, and a court must decide whether it is clear from the well-pleaded facts and reasonable inferences from those facts that the claimant has not established a right to relief. Bilt–Rite Contractors, Inc. v. The Architectural Studio , 581 Pa. 454, 866 A.2d 270, 272 (2005), citing Estate of Witthoeft v. Kiskaddon , 557 Pa. 340, 733 A.2d 623, 624, n.1 (1999) (in determining preliminary objections in nature of demurrer, all material facts set forth in the pleading, and all inferences therefrom, are accepted as true). Preliminary objections in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Id. at 274, quoting MacElree v. Phila. Newspapers, Inc. , 544 Pa. 117, 674 A.2d 1050, 1056 (1996).

I. Standing and Ripeness

We first consider the Board's objections based on standing and ripeness. We note there is "considerable overlap" between the two doctrines, especially where the objecting party's claim that the matter is not justiciable is "focused on arguments that the interest asserted by the petitioner is speculative, not concrete, or would require the court to offer an advisory opinion." Robinson Twp. v. Commonwealth , 623 Pa. 564, 83 A.3d 901, 917 (2013), citing Rendell v. Pa. State Ethics Comm'n. , 603 Pa. 292, 983 A.2d 708, 718 (2009).

Generally, the doctrine of standing is an inquiry into whether the

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