Stilp v. Commonwealth, No. 151 MAP 2005 (Pa. 9/14/2006)

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GENE STILP, Appellant v. COMMONWEALTH OF PENNSYLVANIA, ROBERT P. CASEY, JR., TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, ROBERT C. JUBELIRER, PRESIDENT PRO TEMPORE OF THE PENNSYLVANIA SENATE, JOHN M. PERZEL, SPEAKER OF THE HOUSE OF REPRESENTATIVES, Appellees THE HONORABLE JOHN W. HERRON, Appellant v. COMMONWEALTH OF PENNSYLVANIA, ROBERT C. JUBELIRER, PRESIDENT PRO TEMPORE OF THE SENATE OF THE COMMONWEALTH OF

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PENNSYLVANIA, JOHN M. PERZEL, SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE COMMONWEALTH OF PENNSYLVANIA, TOM CORBETT, ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, ROBERT P. CASEY, JR., STATE TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, Appellees THE HONORABLE CHARLES C. BROWN, JR., THE HONORABLE FRANK T. HAZEL, THE HONORABLE ROBERT E. KUNSELMAN, THE HONORABLE BENJAMIN LERNER, THE HONORABLE WILLIAM A. MEEHAN, THE HONORABLE TIMOTHY PATRICK O'REILLY, AND THE HONORABLE JOSEPH A. SMYTH, Appellants v. COMMONWEALTH OF PENNSYLVANIA, ROBERT P. CASEY, JR., STATE TREASURER OF THE COMMONWEALTH OF PENNSYLVANIA, Appellees COMMONWEALTH OF PENNSYLVANIA, THOMAS W. CORBETT, JR., ATTORNEY GENERAL, INTERVENOR

No. 151 MAP 2005

No. 48 EAP 2005

No. 9 MAP 2006

Supreme Court of Pennsylvania, Middle and Eastern Districts

Argued: April 4, 2006

Decided: September 14, 2006.

Order by this Court Assuming Plenary Jurisdiction of the Matter, Dated December 22, 2005.

Order by this Court Assuming Plenary Jurisdiction of the Matter, Dated January 11, 2006.

Before CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, BALDWIN, JJ.

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OPINION

MR. JUSTICE CASTILLE

I. FACTS AND PROCEDURAL HISTORY

- A -

These matters are before this Court, upon exercise of plenary jurisdiction,¹ based upon the important constitutional questions posed by the parties. The absence of a developed record is no impediment to review of these questions because the cases pose purely legal challenges to two pieces of legislation: Act 44 of 2005,² which tied salaries provided to the Judiciary, the General Assembly, and certain high-ranking executive branch officials to the salaries provided to federal officials by means of specific formulas, resulting in increased salaries; and Act 72 of 2005,³ which repealed Act 44 in its entirety. The factual circumstances giving rise to the litigation are undisputed by the parties. Indeed, the parties assume the Court's familiarity with, and acceptance of, certain foundational facts concerning the interplay between the two Acts and the occasion for Act 72. Thus, in the discussion that follows, and for purposes of background, we will take judicial notice of some of the relevant factual circumstances concerning the legislative process and the legislation itself.

Act 44 was passed by the General Assembly without floor debate at approximately 2:00 a.m. on July 7, 2005. Act 44 was signed into law by Governor Edward G. Rendell on that same date. In its final form, Act 44 was twenty-two pages in length, and it, inter alia,

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removed the issue of official compensation from the political arena by adopting specific formulas for determining compensation for the Judiciary, the General Assembly, and certain high-ranking executive officials, which were based on the federal governmental salary structure. Application of the formulas resulted in compensation increases for all three branches.

There was a negative public response to the legislation, focusing particularly upon its timing and method of passage and upon a provision providing for an increase in unvouchered expenses, which applied exclusively to the legislative branch.⁴ Governor Rendell defended the legislation, and specifically defended the unvouchered expense provision, noting: "It's legal — and that's all I'm going to say about it."⁵ Mr. Chief Justice Cappy, acting in his role as the leader of the Pennsylvania Judiciary,⁶ later authored two editorials for legal periodicals that defended Act 44. See Ralph J. Cappy, Three Branches, Working Together: A collaborative effort has led to a compensation system that is right for Pennsylvania, PA. LAW WEEKLY, July 25, 2005; Ralph J. Cappy, Legislature Has Found a

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Compensation Plan That's Right for Pa., THE LEGAL INTELLIGENCER, July 27, 2005. In these editorials, the Chief Justice posited that Act 44 established a salary structure which was beneficial for good government by attracting and retaining qualified public servants. Moreover, the Chief Justice noted that, by linking the salaries paid to state officials to the federal governmental salary structure, Act 44 addressed the problem of political distraction generally associated with the mere consideration of pay raise legislation. The Chief Justice did not address the unvouchered expense provision applicable to the members of the General Assembly.⁷

The year 2005 was a municipal election year.⁸ Thus, in the November 8, 2005 general election, no statewide offices were contested in either the legislative or the executive branch. However, pursuant to Article V, Section 13(a) of the Pennsylvania Constitution, which requires that all judges be elected at municipal elections, two of this Court's Justices, Mr. Justice Russell M. Nigro and Madame Justice Sandra Schultz Newman, stood for retention election.⁹ Mr. Justice Nigro was narrowly defeated for retention in the general election, while Madame Justice Newman was retained by an unusually narrow margin.

In the meantime, as the general election neared, the General Assembly began considering a repeal of Act 44 in apparent reaction to the public outcry. Thus, competing bills that would eventually become Act 72 were introduced in both the Senate and the

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House of Representatives. A dispute between the two chambers stymied passage of the legislation before the general election took place. Following the November 8, 2005 election, however, the House of Representatives approved Act 72 on November 14, 2005; the Senate followed suit on November 16, 2005; and the Governor signed Act 72 into law on that same date. Act 72 on its face repealed Act 44 in its entirety.

- B -

Currently before the Court are three separate matters. The first matter in order of time, Stilp v. Commonwealth, arose on August 1, 2005, when appellant Gene Stilp, acting pro se, filed a Complaint in Mandamus and Bill of Equity in the Commonwealth Court's original jurisdiction, challenging the constitutionality of Act 44. The respondents¹⁰ filed preliminary objections; Stilp filed an amended Complaint; and respondents renewed their preliminary objections. While those preliminary objections were pending, Act 72 was adopted as law. On November 17, 2005, the Commonwealth Court stayed briefing on the preliminary objections and directed the parties to file memoranda of law on the issue of whether the case had been rendered moot by Act 72's repeal of Act 44. On November 23, 2005, simultaneously with his Commonwealth Court submissions addressing mootness and a motion to stay the proceedings, Stilp filed an Application for Extraordinary Relief in this Court under Pa.R.A.P. 3309 requesting, inter alia, that we assume jurisdiction over the matter. Stilp also requested a stay of the Commonwealth Court proceedings. On November 30, 2005, the Commonwealth Court, in an unpublished, single-judge opinion by the Honorable James R. Kelley, dismissed Stilp's challenge below on the basis of

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mootness and denied his request for a stay, noting that Stilp could appeal the dismissal to this Court as a matter of right. On December 22, 2005, this Court granted Stilp's Application in part, assumed plenary jurisdiction over this matter, directed that the case be listed for oral argument at the same session with Herron v. Commonwealth, directed that the parties brief five issues that will be discussed later in this Opinion, and denied Stilp's motion to stay the Commonwealth Court proceedings as moot. See Stilp v. Commonwealth, 889 A.2d 499 (Pa. 2005) (per curiam).

Stilp and appellees thereafter timely filed legal briefs addressing the relevant issues.¹¹ Each appellee submitted a separate brief but, with the exception of Treasurer Casey, presented similar arguments for each issue. Treasurer Casey, instead, aligned his arguments with Stilp and argued that Act 44 was unconstitutional. Several interested parties filed amicus curiae briefs in this matter. In support of Stilp, a single amicus curiae brief was filed by Timothy Potts; Russ Diamond, on behalf of PA Clean Sweep, Inc.; and Eric Epstein, Coordinator of RocktheCapital.org. In support of appellees, amicus curiae briefs were filed by Judge Herron, the appellant in Herron v. Commonwealth, and the judges/appellants in Brown v. Commonwealth. Additionally, an amicus curiae brief was

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submitted by the law firm of Thomas, Thomas & Hafer, LLP, which did not support either party but addressed one of the issues presented.

The second matter in order of time, Herron v. Commonwealth, was instituted on December 6, 2005 when the Honorable John W. Herron, Judge of the Court of Common Pleas of Philadelphia County, filed a Petition for Review in the Commonwealth Court challenging the constitutionality of Act 72 insofar as it decreased the compensation of Pennsylvania judicial officials. On that same date, Judge Herron filed an Application for Extraordinary Relief, in accordance with Pa.R.A.P. 3309, requesting, inter alia, that this Court assume extraordinary jurisdiction, pursuant to 42 Pa.C.S. § 726, over the Commonwealth Court matter. On December 22, 2005, this Court granted Judge Herron's Application in part, assumed plenary jurisdiction, directed that the case be listed for oral argument at the same session with Stilp, and directed that the parties brief two issues that will be fully discussed later in this Opinion.^{12 13}

Judge Herron and appellees timely submitted briefs. As in Stilp, each appellee submitted an individual brief, and each appellee defends Act 72's constitutionality. An amicus curiae brief was submitted by...