Frank Shimkus, the ex-TV newsman formerly known as Frank Andrews, had his engagement announcement run in the Times-Tribune on Sunday. He will wed former TV news subordinate Gabrielle Prutisto on May 3. For the record, the announcement says Frank lives in Throop. That man needs to get his story straight.
Thursday, April 10, 2008
Frank Andrews Shimkus sets the date
Frank Shimkus, the ex-TV newsman formerly known as Frank Andrews, had his engagement announcement run in the Times-Tribune on Sunday. He will wed former TV news subordinate Gabrielle Prutisto on May 3. For the record, the announcement says Frank lives in Throop. That man needs to get his story straight.
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that would be prawn on the barbie.
12:25, we don't miss you
12:25
"...differences between you and I"?
I take it grammar doesn't count where you are now.
Hey 12:25, let's at least get the attribution correct.
It was 5:44 that called you overweight.
7:37 told 5:44 he was looking in the mirror.
It'sno wonder the media is in such poor shape, oh and sorry to hear you're unemployed. ;)
I hope Mr. NEPA Media returns soon and posts something new. Frank and Gabby aren't worth 217 posts. Who do they think they are, Gene Padden?
Thanks Gene!
The wedding is this weekend. Who's invited? Will it be a star-studded who's who of NEPA broadcasting past 'n present?
So what happens to the Weekender if the TL is sold? Who's gonna tell the kiddies where to get their drink on?
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in increased salaries; and Act 72 of 2005,3 which repealed Act 44 in its entirety.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,
1 See 42 Pa.C.S. § 726.
2 The Act of July 7, 2005, P.L. 201, No. 44 (hereinafter, “Act 44”).
3 The Act of November 16, 2005, P.L. 385, No. 72 (hereinafter, “Act 72”).
[J-36A-C-2006] - 4
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
4 The Pennsylvania Constitution provides that legislators may not receive an increase in
salary or mileage during the term of office for which they have been elected under a law
passed during such term of office. PA. CONST. art. II, § 8. Act 44 adopted a formula that
increased salaries for legislators, but those higher salaries were not to take effect until after
each legislator was either elected or reelected for an additional term of office. The
unvouchered expense provision, however, permitted current legislators to obtain the dollarfor-
dollar equivalent of that future salary increase immediately through the provision of an
increase in unvouchered expenses. See Act 44, § 2 (amending 46 Pa.C.S. § 1107).
5 Amy Worden and Mario F. Cattabiani, In a late-night flurry, the budget is passed; The
$23.9 billion package restores Medicaid cuts, adds an environmental bond -- and included
a legislative pay raise, PHILA. INQUIRER, July 7, 2005, at B1.
6 The Pennsylvania Supreme Court is the “highest court of the Commonwealth and in this
court shall be reposed the supreme judicial power of the Commonwealth.” PA. CONST. art.
V, § 2.
[J-36A-C-2006] - 5
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
7 The Chief Justice is not participating in these cases.
8 Article VII, Section 3 of the Pennsylvania Constitution mandates that municipal elections
be held in odd-number years.
9 Justice Nigro and Justice Newman were elected to this Court at the municipal election
held in November 1995. Under Article V, Section 15(a) of our Constitution, the term of
office for Justices of this Court is ten years. Pursuant to Article VII, Section 15(b), a Justice
may seek retention following expiration of that ten-year term.
[J-36A-C-2006] - 6
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
10 The respondents in the Commonwealth Court are the same as appellees here, except for
Governor Rendell who was dismissed as an appellee via per curiam order dated February
14, 2006. Appellees consist of the Commonwealth, State Treasurer Robert P. Casey, Jr.,
President pro tempore of the Senate Robert C. Jubelirer, and Speaker of the House John
M. Perzel.
[J-36A-C-2006] - 7
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
11 Attorney General Tom Corbett submitted briefs on behalf of the Commonwealth in Stilp
and Brown, and on behalf of himself and the Commonwealth in Herron. In his Herron brief,
but not his Brown brief, the Attorney General contends that, because Act 72 does not give
him any authority to enforce the law, he is not a proper party and should be dismissed. We
deem the participation of the Attorney General to be appropriate, not to mention helpful, as
he is the Commonwealth official statutorily charged with defending the constitutionality of all
enactments passed by the General Assembly, regardless of the nature of the constitutional
challenge or the opinion of any other state official concerning a given statute’s validity. City
of Philadelphia v. Commonwealth, 838 A.2d 566, 583-84 (Pa. 2003) (citing 71 P.S. § 732-
204(a)(3) (“It shall be the duty of the Attorney General to uphold and defend the
constitutionality of all statutes … .”)).
[J-36A-C-2006] - 8
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 the County Commissioners Association of
Pennsylvania (“CCAP”) supporting neither party. CCAP takes no position with respect to
12 Appellees in Herron consist of the Commonwealth, Senate President pro tempore
Jubelirer, Speaker of the House Perzel, Attorney General Corbett, and Treasurer Casey.
Governor Rendell was dismissed as an appellee via per curiam order dated February 14,
2006, and Lieutenant Governor Catherine Baker Knoll was dismissed as an appellee via
per curiam order dated February 21, 2006.
13 The requests for this Court to assume jurisdiction over Stilp and Herron were
overlapping, and it became apparent to this Court that the cases posed interlocking issues.
Accordingly, joining the matters and listing them for argument together assured a full and
complete consideration of the important legal issues raised in each case.
[J-36A-C-2006] - 9
the constitutionality of Act 72; rather, CCAP’s concern relates to Judge Herron’s challenge
and Act 44’s effect on the salary structure for full-time county district attorneys.14
The third matter in order of time, Brown v. Commonwealth, was initiated on
December 13, 2005 when appellants, who are commissioned judges in either the Court of
Common Pleas in various counties in the Commonwealth or in the Philadelphia Municipal
Court,15 filed a Petition for Review in the Commonwealth Court also challenging the
constitutionality of Act 72. On that same date, the Brown appellants filed an Application for
Extraordinary Relief, in accordance with Pa.R.A.P. 3309, requesting, inter alia, that this
Court assume extraordinary jurisdiction over the Commonwealth Court matter pursuant to
42 Pa.C.S. § 726. On January 11, 2006, this Court granted the Application in part,
assumed plenary jurisdiction, consolidated the case with Herron, directed that the case be
listed for oral argument at the same session with Stilp and Herron, and further directed that
the parties brief the same two issues posed in Herron.
The Brown appellants and appellees timely submitted briefs.16 Both Attorney
General Corbett and Treasurer Casey posit arguments that are materially identical to those
14 We note that the concern raised by CCAP is not before this Court, as we did not order
the parties to discuss the interaction of Act 44’s provision regarding district attorney salaries
and Judge Herron’s challenge, nor did the parties raise this issue themselves. Accordingly,
there will be no further discussion of this issue in this Opinion. See Commonwealth v.
Cotto, 753 A.2d 217, 224 n.6 (“An amicus curiae is not a party and cannot raise issues that
have not been preserved by the parties.”); Pa.R.A.P. 531(a) (an interested party may file an
amicus curiae brief concerning those questions before an appellate court); 4 AM. JUR. 2D
Amicus § 7 (2005) (“[A]n amicus must accept the case before the court with the issues
made by the parties. Accordingly, an amicus curiae ordinarily cannot inject new issues into
a case which have not been presented by the parties.”) (footnotes omitted).
15 The seven judges/appellants have filed a single brief; for ease and clarity of discussion,
we will refer to them collectively as “the Brown appellants.”
16 Appellees consist of the Commonwealth, Governor Rendell, and Treasurer Casey.
Governor Rendell did not submit a brief in this matter.
[J-36A-C-2006] - 10
they presented in Herron. The Pennsylvania Bar Association and the Philadelphia Bar
Association filed separate amicus curiae briefs arguing in support of the Brown appellants
and against Act 72’s constitutionality insofar as it reduced judicial compensation. Senator
Jubelirer submitted an amicus curiae brief in support of appellees, arguing that Act 72 was
constitutional.
The matters were argued before the Court on April 4, 2006, with able and respectful
presentations forwarded by all involved, and they are ripe for decision. Because of the
interplay of the challenges to the two Acts in question, we have determined that a single
opinion would be the most efficient and sensible manner of deciding the entirety of the
issues. Part II of this Opinion addresses the challenges to the constitutionality of Act 72
raised by Judge Herron and the Brown appellants, while Part III addresses Stilp’s
challenges to the constitutionality of Act 44.
- C -
Preliminarily, we note that none of the parties has questioned the propriety of this
Court’s consideration of these matters. The six participating members of this Court are not
parties to these actions. However, the Justices, and indeed every member of the Judiciary
in Pennsylvania, have a pecuniary interest in the outcome of these proceedings. The
pecuniary interest implicated here would ordinarily require a judge to disqualify himself or
herself from the matter. That option, however, is not available here as recusals en masse
would prevent any judicial review whatsoever of these important matters. Thus, under the
present circumstance, the long-recognized common law “rule of necessity” requires this
Court to proceed to discharge its constitutional duty notwithstanding any interest in the
outcome. See United States v. Will, 449 U.S. 200, 213-16, 101 S.Ct. 471, 480-81 (1980);
City of Philadelphia v. Fox, 64 Pa. 169, 185 (1870) (“The true rule unquestionably is that
wherever it becomes necessary for a judge to sit even where he has an interest -- where no
provision is made for calling another in, or where no one else can take his place -- it is his
[J-36A-C-2006] - 11
duty to hear and decide, however disagreeable it may be.”). Indeed, this Court previously
has considered constitutional challenges to legislation affecting judicial compensation.
See, e.g., Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323 (Pa. 1986).
Since there is no provision or procedure in existence for an entity clothed with proper
jurisdiction to consider this matter other than this Court, we shall proceed to consider the
claims.
II. CONSTITUTIONALITY OF ACT 72 INSOFAR AS IT REDUCES JUDICIAL
COMPENSATION: THE HERRON AND BROWN APPEALS
A. Introduction
The title of Act 72 plainly states that this Act was passed for the purpose of repealing
Act 44 in its entirety and reenacting the previous compensation provisions contained in Act
39 of 1983,17 and making editorial changes.18 Judge Herron and the Brown appellants
(collectively, “the Judges”) challenge Act 72 insofar as it repeals the formula in Act 44 which
17 The Act of September 30 1983, P.L. 160, No. 39 (hereinafter, “Act 39”).
18 Specifically, the title of Act 72 provides in full:
A[n] A[ct] [r]epealing the act of July 7, 2005 (P.L. 201, No. 44), entitled, “An
act amending Titles 42 (Judiciary and Judicial Procedure), 46 (Legislature)
and 71 (State Government) of the Pennsylvania Consolidated Statutes,
providing for compensation; and making an inconsistent repeal”; reenacting
and amending the act of September 30, 1983 (P.L. 160, No. 39), entitled “An
act establishing salaries and compensation of certain public officials including
justices and judges of Statewide courts, judges of courts of common pleas,
judges of the Philadelphia Municipal Court, judges of the Philadelphia Traffic
Court, district justices and the Governor, the Lieutenant Governor, the State
Treasurer, the Auditor General, the Attorney General and certain other State
officers and the salary and certain expenses of the members of the General
Assembly; and repealing certain inconsistent acts,” and further providing for
members of the General Assembly; and making editorial changes.
[J-36A-C-2006] - 12
led to an increase in the compensation provided to the Judiciary. The Judges’ challenge
focuses on Article V, Section 16(a) of the Pennsylvania Constitution, which provides in full:
Justices, judges and justices of the peace [now magisterial district judges]
shall be compensated by the Commonwealth as provided by law. Their
compensation shall not be diminished during their terms of office, unless by
law applying generally to all salaried officers of the Commonwealth.
PA. CONST. art. V, § 16(a). The General Assembly obviously realized that its repeal of Act
44 presented a serious constitutional question to the extent that it reduced judicial
compensation. Thus, the very first section of Act 72, entitled “Declaration of policy,”
provides in full, as follows:
(a) The General Assembly declares that the reenactment of the superseded
provisions of the act of September 30, 1983 (P.L. 160, No. 39), known as the
Public Official Compensation Law, is necessary to effectuate the repeal of
the act of July 7, 2005 (P.L. 201, No. 44), entitled “An act amending Titles 42
(Judiciary and Judicial Procedure)[,] 46 (Legislature) and 71 (State
Government) of the Pennsylvania Consolidated Statutes, providing for
compensation; and making an inconsistent repeal,” and to adopt salaries in
effect on July 6, 2005.
(b) The exercise of the authority of the General Assembly to establish salary
of the justices, judges and justices of the peace pursuant to section 1 of
Article II and section 16(a) of Article V of the Constitution of Pennsylvania is
not intended to diminish or infringe on, or otherwise interfere with, the
independence of the judicial system or the Executive Department.
(c) For purposes of implementing this act and restoring salaries in effect on
July 6, 2005, the General Assembly finds and declares that the officials
referred to in this act shall constitute the “salaried officers of the
Commonwealth” for purposes of section 16(a) of Article V of the Constitution
of Pennsylvania.
Act 72, § 1.
In light of the Judges’ challenge, this Court directed the parties to address the
following two issues:
[J-36A-C-2006] - 13
(1) Whether Act 72 violates Article V, Section 16(a) of the Pennsylvania
Constitution?
(2) What is the significance of Sections 1(b) and (c) of Act 72 to the question
of the constitutionality of Act 72 in the face of a challenge under Article V,
Section 16(a) of the Pennsylvania Constitution?
Because this Court assumed plenary jurisdiction over this matter, there is no lower court
decision or order under review. The questions involved are purely legal, and thus, our
scope of review is plenary and our standard of review is de novo.
B. Arguments in Support of Act 72’s Unconstitutionality
Though not identical, the arguments forwarded by the Judges are similar and
overlapping; accordingly, for ease of exposition, we shall summarize them as one. The
Judges argue that Act 72’s repeal of the Act 44 formula, a formula which led to an
immediate increase in the compensation provided to the Judiciary, diminished judicial
compensation during their terms of office, and that the single exceptional circumstance
recognized by the Constitution which would allow for such reduction -- i.e., where the
compensation for “all salaried officers of the Commonwealth” is also diminished -- is not
implicated here. The Judges argue that the constitutional exception was intended only for
a circumstance where governmental solvency is threatened in “a period of economic
stress.” See Preparatory Committee’s Reference Manual No. 5, The Judiciary, at 67.19
19 Section 16(a) was proposed by the Pennsylvania Bar Association during the 1967-1968
Pennsylvania Constitutional Convention. The proposal was based on similar provisions
contained in the Constitutions of 1790, 1834, and 1870, each of which explicitly prohibited
diminution of the compensation paid to judges during their terms of office. The
Pennsylvania Bar Association also recommended that the constitutional provision should
contain the exception that judicial compensation could be reduced only if all compensation
of salaried officers of the Commonwealth was diminished, similarly for the purpose of
alleviating the Commonwealth’s financial burden during exigent economic circumstances.
See Preparatory Committee’s Reference Manual No. 5, The Judiciary at 67. For a
(continued…)
[J-36A-C-2006] - 14
Thus, the Judges contend, the Pennsylvania Constitution sets a high bar before judicial
compensation may be reduced, limited to a specific, extraordinary circumstance. If that
circumstance is not implicated, the unambiguous prohibition against reducing judicial
compensation is necessary to ensure the independence of the Judiciary, one of the three
coordinate and equal branches of government. See, e.g., Firing v. Kephart, 353 A.2d 833,
837 (Pa. 1976) (“[T]he well-established purpose of the prohibition against diminishing the
compensation of the Judiciary during their terms of office, contained in Section 16(a) but
explicitly or implicitly present in the Pennsylvania Constitution since the Constitution of
1790, is to maintain the independence of the Judiciary from encroachment by the other
branches of government.”) (footnote omitted).
The Judges’ argument that Act 72 diminished judicial compensation is
straightforward. Act 44’s formula operated to immediately increase the compensation paid
all Pennsylvania judges; Pennsylvania judges actually began receiving the new salaries as
of July 8, 2005; the General Assembly reduced those salaries during the judges’ terms of
office four months later with the November 16, 2005 enactment of Act 72; and, after
November 16, 2005, Pennsylvania judges’ salaries in fact were rolled back to their previous
levels.
Turning to the question of the applicability of the Section 16(a) exception, the Judges
first note that Act 72 was not passed in order to address any particular economic crisis in
the Commonwealth, which might have warranted a reduction in the compensation of “all
salaried officers of the Commonwealth.” The Judges note that the period between July
2005 and November 2005 was not marred by severe economic stress threatening the
Commonwealth. Instead, they assert that Act 72 was motivated by a political crisis facing
(…continued)
generation that experienced the Great Depression and the Second World War, this was not
an ephemeral or obscure prospect.
[J-36A-C-2006] - 15
the General Assembly in the wake of their constituents’ reactions to certain aspects of Act
44. Leaving aside whether the purpose of the legislation implicates the Section 16(a)
exception, the Judges then posit three independent reasons why Act 72 does not fall within
the narrow exception provided in Section 16(a).
First, the Judges argue that Act 72 does not diminish, or even address, the
compensation of many other “salaried officers of the Commonwealth.” The Judges
concede that the specific constitutional phrase “salaried officers of the Commonwealth” has
not been addressed or defined by any court in this Commonwealth, but the Judges cite to
other precedent from this Court in support of their assertion that a reliable definition is
easily discernible. See Werner v. Zazyczny, 681 A.2d 1331, 1337 (Pa. 1996) (determining
that Special Investigator III in Inspector General’s Office was not an “officer” under Article
VI, Section 7 of Pennsylvania Constitution, and explaining that “[a] person will be deemed a
public officer if the person is appointed or elected to perform duties of a grave and
important character, and which involve some of the functions of government, for a definite
term.”); Vega v. Borough of Burgettstown, 147 A.2d 620, 623 (Pa. 1958) (concluding that
police chief was not “public officer” but merely a “public employee” under a statute outlining
the procedure for the removal of borough police officers, and noting that “the test to be
applied in determining a public officer is … [whether] the officer is chosen by the electorate,
or appointed, for a definite and certain tenure in the manner provided by law to an office
whose duties are of a grave and important character, involving some of the functions of
government, and are to be exercised for the benefit of the public for a fixed compensation
paid out of the public treasury … .”) (quoting Alworth v. County of Lackawanna, 85 Pa.
Super. 349, 352 (1925)); Richie v. City of Philadelphia, 74 A. 430, 431 (Pa. 1909)
(determining that term “public officer” in Article III, Section 13 of then-applicable
Pennsylvania Constitution encompassed appointed real estate assessor; factors to be
examined are “the nature of the service to be performed by the incumbent,” the “duties
[J-36A-C-2006] - 16
imposed upon him,” whether “those duties are of a grave and important character, involving
in the proper performance of them some of the functions of government,” and “a fixed
term.”).20 The Judges further argue that other provisions of the Pennsylvania Constitution
containing the term “officer” make clear that the term is intended to be broad and inclusive;
for that reason, the Judges submit, the Constitution contemplates “officers” beyond those
explicitly named. See, e.g., PA. CONST. art. VI, § 1 (entitled “Selection of Officers Not
Otherwise Provided for in Constitution,” and providing, “All officers, whose selection is not
provided for in this Constitution, shall be elected or appointed as may be directed by law.”).
The Judges additionally note that Section 16(a) adds two important qualifications
that must be accounted for when discerning a proper definition for the term “officer.” First,
the “officers” must be “salaried;” and second, they must be officers “of the Commonwealth.”
Therefore, the Judges cogently reason that the term “officer” in Article V, Section 16(a)
“refers to all salaried holders of state offices, whether elected or appointed to those posts,
whose offices impose grave and important duties and involve performance of some
functions of government.” Brown Brief at 13; Herron Brief at 7.
Applying this logical definition, the Judges argue that no less than seven cabinet
positions in the executive branch did not suffer a reduction in compensation by operation of
Act 72, including: the General Counsel, see 71 P.S. § 732-301; the Secretary of Planning
20 The Judges note that, although this Court has often stated that a defined term of office is
a relevant factor in determining whether someone is an “officer,” the Court has never
specifically held that this factor is an absolute prerequisite. The Judges further note,
however, that in 1978, the Office of the Attorney General issued an official opinion
concluding that the Attorney General himself and the Secretary of the Commonwealth were
“officers” under the Constitution even though neither position at that time carried a definite
term. See Pa. Op. Att’y Gen. 110 (1978), 1978 WL 21499. The Judges ultimately maintain
that this Court does not need to resolve this issue because Act 72 plainly failed to address
or diminish the compensation of holders of many offices charged with performing grave and
important duties who are appointed or elected for definite terms, and that fact is enough to
decide their challenge.
[J-36A-C-2006] - 17
and Policy; the Secretary of Legislative Affairs; the Director of Health Care Reform; the
Director of the Pennsylvania Emergency Management Agency, see 35 Pa.C.S. § 7312(e);
the Secretary of the Budget, see 71 P.S. § 229; and the Inspector General, see 4 Pa. Code
§ 1.291. The Judges contend that cabinet-level officers certainly must qualify as “salaried
officers of the Commonwealth.” In this regard, and as an example, Judge Herron notes
that “the General Counsel is an officer established by statute to undertake the grave and
important role of serving as the legal advisor to the Governor and ‘[r]ender such legal
advice, and such representation prior to initiation of any action, as are required concerning
every matter and issue arising in connection with the exercise of the official powers and
duties’ of each executive and independent agency.” Herron Brief at 8 (quoting 71 P.S. §
732-301(3)).
Additionally, the Judges contend that Act 72 did not reduce the salaries of the
following officers, all of whom are appointed by the Governor, by and with the consent of
the Pennsylvania Senate: the members of the Turnpike Commission, see 36 P.S. § 651.5;
the members of the Unemployment Compensation Board, see 43 P.S. § 763; the members
of the Pennsylvania Public Utility Commission, see 66 P.S. § 301; the members of the
Pennsylvania Securities Commission, see 70 P.S. § 1-601; the members of the State Civil
Service Commission, see 71 P.S. § 741.201; the Physician General, see 71 P.S. § 1401;
the members of the Environmental Hearing Board, see 35 P.S. §§ 7511-16; the
Commissioner of the Bureau of Professional and Occupational Affairs, see 63 P.S. § 1401-
305; and the Consumer Advocate, see 1976 Pa. Legis. Serv. 423 (West). Other “officers”
who did not have their salaries reduced by Act 72, the Judges note, include: the State Fire
Commissioner; the Deputy Secretaries of Community Affairs and Development, Information
Technology, and Human Resources and Management; and the Executive Directors of the
Game Commission, the Philadelphia Regional Port Authority, the Pennsylvania Historical
and Museum Commission, and the Fish and Boat Commission.
[J-36A-C-2006] - 18
The Judges conclude their first point by emphasizing that the list of “officers” they
have identified above is not exhaustive of all such unaffected “salaried officers of the
Commonwealth.” But the list alone, the Judges assert, proves that Act 72 did not diminish
or even address the compensation of “all” salaried officers of the Commonwealth in the
same manner that it directly diminished judicial compensation. The Judges assert that, for
this reason alone, the exception in Section 16(a) does not apply, and Act 72 therefore
violates Article V, Section 16(a).
The second independent reason for concluding that the exception does not apply,
according to the Judges, is that Act 72 does not diminish the current salaries of the
executive officers who were specifically enumerated in Act 44. The elected executive
officers identified in Act 44, whose increased compensation was specifically addressed in
Act 44, include the Governor, the Lieutenant Governor, the State Treasurer, the Auditor
General, and the Attorney General. Act 44, § 3 (amending 71 Pa.C.S. §§ 1102-03). The
appointed Cabinet members identified and affected by Act 44 were the Adjutant General,
the Secretary of Aging, the Secretary of Agriculture, the Secretary of Banking, the
Secretary of the Commonwealth, the Secretary of Community and Economic Development,
the Secretary of Conservation and Natural Resources, the Secretary of Correction, the
Secretary of Education, the Secretary of Environmental Protection, the Secretary of
General Services, the Secretary of Health, the Insurance Commissioner of the
Commonwealth, the Secretary of Labor and Industry, the Secretary of Public Welfare, the
Secretary of Revenue, the Pennsylvania State Police Commissioner, and the Secretary of
Transportation. Id. (amending 71 Pa.C.S. § 1102(c)).
Under Act 44, the Judges note, the salary increases applicable to the named elected
executive positions were only available to those individuals elected to these positions after
the July 7, 2005 effective date of the Act. See Act 44, § 4(4). Similarly, the salary
increases provided for the named appointed Cabinet positions were to apply only to
[J-36A-C-2006] - 19
individuals appointed to these positions after December 31, 2006. See Act 44, § 4(3).
Unlike the compensation increases that the Act 44 formulas provided to the legislators (in
the form of unvouchered expenses) and the Judiciary, the increases in salaries provided to
these named executive officers never took effect because Act 44 was repealed by Act 72
before any of these officers were either elected or appointed. Because no executive
officers -- including the ones specifically identified in Act 44 -- had their compensation
actually increased by Act 44, by definition, none saw their salaries decreased when Act 72
was adopted. For this separate and independent reason, the Judges argue, the Section
16(a) “all salaried officers” exception does not apply, and Act 72 must be deemed
unconstitutional insofar as it reduced judicial compensation.
Third, the Judges argue that the exception is inapplicable because the Act 72 salary
reduction does not apply “generally.” This is so, the Judges note, because the salary
reductions in Act 72 do not apply evenly -- i.e., by the same amount or proportion -- to the
various officers affected, as some officers’ salaries are reduced by one amount, others by a
different amount, etc. The Judges dismiss appellees’ argument that Act 72 merely reduces
salaries by the same amount that they were increased by Act 44 as unavailing, reiterating
that the constitutional provision addresses reductions alone and it makes clear that, once
salaries have been established at a certain amount, a law reducing those salaries does not
apply “generally” unless it reduces them evenly across-the-board, either directly or
proportionately.
Turning to the second issue in this Court’s briefing order, the Judges argue that the
General Assembly’s policy declarations contained in Sections 1(b) and (c) of Act 72 may
reflect a legislative awareness of the obvious Section 16(a) dilemma, but the declarations
themselves do not dissipate the direct and patently unconstitutional effect that the Act has
on reducing judicial compensation. Regarding Section 1(b)’s declaration that Act 72 “was
not intended to diminish or infringe on, or otherwise interfere with, the independence of the
[J-36A-C-2006] - 20
judicial system,” the Judges assert that this is not the relevant constitutional test. To the
contrary, the Judges note, the test is specifically set forth in Section 16(a) itself, and it looks
to whether judicial compensation has been diminished by a law that does not apply
generally to “all salaried officers of the Commonwealth.” That test does not include an
exception for instances where the reduction in judicial compensation ordered by the
General Assembly was accompanied by a legislative declaration that it did not intend the
reduction to interfere with the independence of the Judiciary; and this Court has never held
that a statute diminishing judicial compensation survives constitutional scrutiny where the
General Assembly claims that it did not thereby intend to interfere with the independence of
the Judiciary. See, e.g., Catania v. Commonwealth, State Employees’ Ret. Bd., 450 A.2d
1342 (Pa. 1982) (plurality opinion).
As for the General Assembly’s policy declaration in Section 1(c) of Act 72, which
purports to define the constitutional term “salaried officers of the Commonwealth” solely for
purposes of this Act and rolling back compensation levels, the Judges argue that this
declaration likewise does not bind the Court. In the Judges’ view, the Constitution does not
afford the General Assembly the authority to attempt to define away a violation of Section
16(a). To grant the General Assembly the ability to do so, the Judges contend, would
eliminate the Constitution’s authority to impose limitations or prohibitions on the legislative
branch, in clear contravention of fundamental separation of powers principles. Further, the
Judges note that the General Assembly’s declaration as to which officers constitute the
“salaried officers of the Commonwealth” is inconsistent with: prior decisions of this Court
interpreting the term “officer,” see, e.g., Werner, supra; the Constitution’s considerable
guidance in determining who is an “officer,” see, e.g., PA. CONST. art. IV, § 1, art. VI, § 1;
and the General Assembly’s own prior positions on this issue -- most tellingly, the revived
Act 39 itself, the title of which plainly acknowledged that it did not establish new salaries for
every Commonwealth officer, as it employed the terms “certain public officials” and “certain
[J-36A-C-2006] - 21
other State officers.” Thus, the Judges argue, this Court is not bound by the General
Assembly’s attempted pre-emptive definition.
The amicus briefs filed by the Pennsylvania Bar Association and the Philadelphia
Bar Association emphasize, as the Judges do, that Act 72 violates Section 16(a) because it
does not apply to “all salaried officers of the Commonwealth” as that phrase was intended,
and because many executive branch officers specifically mentioned in Act 44 itself did not
have their existing salaries at all diminished by Act 72. The amici also assert that the
General Assembly’s declarations in Sections 1(b) and (c) of Act 72 fail to save the Act from
its patently unconstitutional effect upon judicial salaries. Indeed, the Philadelphia Bar
Association argues that the General Assembly, in seeking to bind the courts to a one-time
definition of the term “salaried officers of the Commonwealth,” a definition which was
obviously designed only in the hope of insulating Act 72 against a constitutional challenge,
sought to usurp the function of the Judiciary as the ultimate interpreter of the Constitution.
In the view of the Philadelphia Bar Association, this legislative declaration of policy
“highlight[s] the danger of an overreaching legislature against which the Compensation
Clause was designed to protect.” Philadelphia Bar Association’s Brief at 9.
The Pennsylvania Bar Association adds that the very occasion for the enactment of
Act 72 negates any suggestion in its declaration of policy, or in appellees’ arguments, that
the Act passes constitutional muster. The Pennsylvania Bar Association posits that the
sole reason the General Assembly passed Act 72 was in response to the public scorn and
discontent which followed upon adoption of Act 44. However, the Pennsylvania Bar
Association contends, that political reason for rolling back compensation is the very type of
retributive action that Section 16(a) expressly prohibits when judicial compensation is
involved. The Pennsylvania Bar Association perceptively notes that, “the General
Assembly [is] free to reduce [its] own compensation in response to the electorate’s
perception of impolitic legislative action, but [it] may not reduce judicial remuneration by
[J-36A-C-2006] - 22
reason of public criticism, or as a reaction to public dissatisfaction with their legislative
action.” Pennsylvania Bar Association Brief at 7. In the view of the Pennsylvania Bar
Association, the General Assembly’s misuse of its control over appropriations, by virtue of
Act 72’s repeal of Act 44, represents a direct encroachment on the integrity and
independence of the Judiciary as a co-equal branch of government.
C. Arguments in Support of Act 72’s Constitutionality
All appellees maintain that Act 72’s repeal of Act 44’s adoption of the formula
governing judicial compensation did not violate Article V, Section 16(a). In addition,
appellees are in basic agreement that Section 1(b) of Act 72 merely reflects the General
Assembly’s express intention not to contravene Section 16(a)’s primary purpose of
preserving the independence of the Judiciary; and that the definition of “salaried officers of
the Commonwealth” found in Section 1(c) is proper and controlling. Each appellee,
however, offers slightly divergent reasons in support of these general arguments.
Attorney General Corbett contends that the Judges have not overcome the strong
presumption of constitutionality that is accorded legislative enactments. The Attorney
General does not dispute that Act 72 reduced judicial compensation, but, he argues, it did
so in a fashion that comported with the exception delineated in Section 16(a). Addressing
the exception, the Attorney General argues that neither the Constitution, nor the cases
cited by the Judges for the definition of “officer” or “public officer,” specifically define
“salaried officers of the Commonwealth.” Therefore, the Attorney General posits, the
General Assembly properly filled that void and adopted what he views as a rational and
legitimate definition of that constitutional term for purposes of Act 72. The Attorney General
also contends that even if other Commonwealth employees not explicitly mentioned by
either Act 44 or Act 72 may be considered “salaried officers of the Commonwealth,” there
still is no violation of Section 16(a) because Act 72 applies generally, if only in the sense
that it uniformly repeals all the salary increases that resulted from the Act 44 formulas.
[J-36A-C-2006] - 23
Treasurer Casey’s primary argument focuses on Act 44, rather than Act 72. The
Treasurer argues that Act 44 was unconstitutional in its entirety at its inception; the salary
increases it provided therefore were unlawful ab initio; and Act 72 cannot be deemed to
have impermissibly reduced judicial compensation where that compensation was never
“legally” increased.21 Alternatively, Treasurer Casey argues that even if Act 44 was
constitutionally enacted, Act 72 did not violate Section 16(a) because the repeal applies to
all of the officers who possess the characteristics attributed to “public officers” as found in
this Court’s jurisprudence interpreting that term. See, e.g., Richie, supra. Moreover, the
Treasurer maintains that Act 72 is egalitarian and applies generally as each affected
officer’s salary is reduced by the very same amount as it was increased by operation of the
Act 44 formulas. Concerning the policy declarations, the Treasurer argues that Sections
1(b) and (c) of Act 72 do not establish the constitutionality of Act 72; rather, these Sections
merely acknowledge that the General Assembly understood its constitutional limitations
under Section 16(a).
In his Herron brief, Speaker Perzel initially and briefly indicates his agreement with
Treasurer Casey that, if Act 44 were deemed to be unconstitutional, it would be void ab
initio and, thus, Act 72 would have to be deemed to have had no unconstitutional effect
upon judicial compensation. Unlike the Treasurer, however, the Speaker insists that Act 44
in fact was constitutional and, therefore, the Judges’ challenge to Act 72 must be resolved.
The Speaker asserts that the values that the Section 16(a) prohibition protects are: (1)
preventing the retributive act of singling out judicial compensation for reduction; and (2)
preserving the Judiciary as a coequal branch of government. The Speaker asserts that
neither of these two values must be deemed to have been implicated by Act 72’s general
21 The Treasurer’s argument here tracks his argument in Stilp, infra, that Act 44 was
unconstitutional because the General Assembly’s manner of passing it violated Article III of
the Pennsylvania Constitution.
[J-36A-C-2006] - 24
repeal of all salary increases established by Act 44, because the General Assembly’s policy
declaration in Section 1(b) said as much. The Speaker further maintains that the General
Assembly’s definition of “salaried officers of the Commonwealth” in Section 1(c) is proper
because, “where a position or officership is constitutionally-created but not constitutionallydefined,
the General Assembly has historically defined that constitutional provision by
statute.” Speaker Perzel’s Brief at 37. For example, the Speaker asserts, the General
Assembly has previously defined the duties of the constitutional offices of State Treasurer
and Auditor General. See PA. CONST. art. IV, § 1; Commonwealth ex rel. Woodruff v.
Lewis, 127 A. 828, 829 (Pa. 1925) (noting that although the offices of State Treasurer and
Auditor General are named in the Pennsylvania Constitution, their duties were defined by
the Legislature).
Speaker Perzel also argues that the scope of the Judges’ challenge is overbroad.
He contends that, even if mid-term compensation increases for the Judiciary may not be
reduced under Section 16(a), Act 72 was constitutional to the extent it operated to eliminate
future judicial salary increases which have not yet “vested.” Thus, the Speaker maintains, if
this Court were to find Act 72 unconstitutional as to judicial salaries, we may only reinstate
the higher salaries initially provided by Act 44 and not those provisions in Act 44 which
might lead to future increases in judicial compensation. Cf. Will, 449 U.S. at 229, 101 S.Ct.
at 487 (“[A] salary increase ‘vests’ for purposes of the [Federal] Compensation Clause only
when it takes effect as part of the compensation due and payable to Article III judges.”).
In addition, the Speaker asserts that, even if Act 72 were deemed unconstitutional to
the extent it reduced the compensation judges were receiving in November 2005, the
Judiciary should be deemed entitled to that Act 44 salary only until their current terms of
office expire, at which point Act 72 would lawfully take effect and operate to reduce newterm
judicial compensation to pre-Act 44 levels. Thus, in the Speaker’s view, any new
judge who began a term of office after November 2005, or any sitting judge retained for a
[J-36A-C-2006] - 25
new term of office after November 2005, lawfully would be subject to the Act 72 repeal and
would receive only the compensation contemplated by Act 39.
We note that this particular argument was not suggested in this Court’s briefing
order. But, in any event, we will summarily reject it. For one thing, Section 16(a) speaks of
“terms” of office. Moreover, the Speaker’s argument would require this Court to re-write Act
44 to include the distinction he would draw, even though the legislation itself does not so
provide. This we decline to do. Since the legislation does not include the Speaker’s
distinction, we do not pass upon the Speaker’s rather remarkable assertion that Section
16(a) permits the General Assembly to enact legislation that would directly reduce judicial
compensation, so long as the reduction is made effective at the beginning of new elective
terms of office.
Senator Jubelirer, as President pro tempore of the Senate, initially argues that Act
72 did not in fact reduce the compensation of any judge during his or her term of office.22
The Senator notes that, on January 1, July 6, November 17, and December 31, 2005, the
annual salaries for judges were the same, and that none of the judges challenging Act 72
assumed office between July 7, 2005 and November 16, 2005.
In the alternative, Senator Jubelirer argues that, assuming that Act 72 reduced
judicial compensation, the reduction does not violate Section 16(a) for several reasons.
First, the Senator maintains that the Act did not single out the Judiciary exclusively for
salary diminution, but rather treated all officials whose salary was affected by the Act 44
formulas the same. Second, the Senator argues that the Judges’ contention that the
exception in Section 16(a) requires that the compensation of every “salaried officer of the
Commonwealth” be reduced at the same time is in direct conflict with Article III, Section 27
22 Senator Jubelirer submitted a brief in Herron and an amicus curiae brief in Brown
incorporating by reference his Herron brief.
[J-36A-C-2006] - 26
of the Pennsylvania Constitution, which prohibits the reduction of the salary of a public
officer after his election or appointment.23 The Senator maintains that, under the Judges’
interpretation, the limited exception provided in Section 16(a) could never be exercised
without conflicting with Article III, Section 27. Third, the Senator disputes the Judges’
contention that case law provides a clear definition of “officer” or “public officer” which can
be utilized to define “salaried officers of the Commonwealth.” In the Senator’s view, the
definitions of “officer” or “public officer” in the cases relied upon by the Judges varied
widely, depending upon the specific constitutional provision at issue.
Concerning the policy declarations provided in Act 72, Senator Jubelirer contends
that Section 1(b) merely reflects that the intention of the General Assembly in enacting Act
72 was not to violate Section 16(a). As for the definition of “salaried officers of the
Commonwealth” found in Section 1(c), the Senator maintains that such a definition was
necessary because of the absence of any decision by this Court interpreting that phrase,
and the previously stated need not to create a conflict with Article III, Section 27. The
Senator notes that it is not uncommon for the executive or legislative branch to interpret
constitutional provisions in exercising their constitutional duties, albeit he concedes that it is
ultimately the responsibility of the Judiciary to determine the proper interpretation. The
Senator further argues that the General Assembly’s Act 72-specific definition of “salaried
officers of the Commonwealth” is reasonable and provides certainty and predictability as it
encompasses all members of the Legislature and Judiciary, and identifies some of the
highest executive officers as the class to which any diminution of compensation must be
applied in order to satisfy Section 16(a).
23 Section 27, entitled “Changes in Term of Office or Salary Prohibited,” provides in its
entirety: “No law shall extend the term of any public officer, or increase or diminish his
salary or emoluments, after his election or appointment.” PA. CONST. art. III, § 27.
[J-36A-C-2006] - 27
D. Analysis
- 1 -
When faced with any constitutional challenge to legislation, we proceed to our task
by presuming constitutionality in part because there exists a judicial presumption that our
sister branches take seriously their constitutional oaths. See 1 Pa.C.S. § 1922(3) (“In
ascertaining the intention of the General Assembly in the enactment of a statute the …
presumption [is] [t]hat the General Assembly does not intend to violate the Constitution of
the United States or of this Commonwealth.”); Pennsylvanians Against Gambling
Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa. 2005) (hereinafter,
“PAGE”). Indeed, a legislative enactment will not be deemed unconstitutional unless it
clearly, palpably, and plainly violates the Constitution. PAGE, 877 A.2d at 393. “Any
doubts are to be resolved in favor of a finding of constitutionality.” Payne v. Dept. of
Corrections, 871 A.2d 795, 800 (Pa. 2005). Accordingly, a party challenging the
constitutionality of a statute bears a very heavy burden of persuasion. See Commonwealth
v. Barud, 681 A.2d 162, 165 (Pa. 1996). In cases where this Court is asked to construe
provisions of the Pennsylvania Constitution, “the fundamental rule of construction which
guides [the Court] is that the Constitution’s language controls and must be interpreted in its
popular sense, as understood by the people when they voted on its adoption.” Ieropoli v.
AC&S Corp., 842 A.2d 919, 925 (Pa. 2004). Our ultimate touchstone is the actual
language of the Constitution itself. See Firing, 353 A.2d at 835-36.
For purposes of deciding the Judges’ challenge to Act 72, we will assume that Act
44 was constitutionally enacted; we will then separately consider the challenges to Act 44,
and the consequences those challenges would have for the Judges’ appeals, in our
discussion of Stilp, infra. Assuming, then, that the compensation provisions in Act 44 were
constitutional, the controlling questions are: (1) whether Act 72 acted to diminish judicial
compensation; and (2), if it did, whether the reduction was constitutional in light of Article V,
[J-36A-C-2006] - 28
Section 16(a). For the reasons that follow, we hold that Act 72 did diminish judicial
compensation; and that the circumstances do not implicate the exception to the
constitutional prohibition on such action. Act 72 is clearly, palpably, and plainly
unconstitutional to the extent that it diminishes judicial compensation.
- 2 -
The question of whether Act 72 operates to diminish judicial compensation need not
detain us long. Act 44 adopted a formula that operated to directly increase judicial salaries
beginning on July 7, 2005. Approximately four months later, with the enactment of Act 72
on November 16, 2005, the General Assembly reduced those salaries during the judges’
terms of office. Since that date, judicial salaries have been restored to their pre-Act 44
levels, i.e., to the level set forth in Act 39. Indeed, most appellees do not dispute that Act
72 reduced judicial compensation. Only Senator Jubelirer suggests that Act 72 did not
diminish the compensation of any judge during his or her term of office, by arguing that on
January 1, July 6, November 17, and December 31, 2005, the annual salaries for judges
were the same, and that none of the Judges challenging Act 72 assumed office between
July 7 and November 16, 2005. This argument does violence to the plain meaning of the
word “during” in Section 16(a). The increased compensation paid to the Judiciary from July
through November 2005 occurred during their terms of office, and that compensation was
reduced during their terms of office. Moreover, if the Senator’s argument were plausible,
Act 72’s “policy” declarations, which refer specifically to Article V, Section 16(a), are
inexplicable. Thus, we hold that Act 72 reduced judicial compensation during judges’ terms
of office.
- 3 -
a. Turning to the more vigorously contested question of whether the exception to
Section 16(a) is applicable, we begin with the history and experience of the constitutional
protection for judicial compensation. This provision was not new to the 1968 version of the
[J-36A-C-2006] - 29
Pennsylvania Constitution. Indeed, similar provisions prohibiting the reduction of judicial
compensation were also included in the Pennsylvania Constitutions of 1776, 1790, 1834,
and 1870. What was new to the 1968 Constitution was the limited exception to this
express prohibition. That exception was proposed by the Pennsylvania Bar Association
during the 1967-1968 Constitutional Convention, which suggested allowing for the prospect
of reducing judges’ salaries, along with the salaries of “all salaried officers of the
Commonwealth,” if dire financial circumstances arose. See Preparatory Committee’s
Reference Manual No. 5, The Judiciary at 67.
Article V, Section 16(a)’s prohibition against the reduction of judges’ compensation
during their terms of office is modeled after Article III, Section 1 of the Federal Constitution,
familiarly known as the Compensation Clause, which provides:
The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.
U.S. CONST. art. III, § 1. In reviewing the Compensation Clause, the United States
Supreme Court has noted that it is rooted in the historic Anglo-American tradition of an
independent Judiciary. See Will, 449 U.S. at 217, 101 S.Ct. at 482. “A Judiciary free from
control by the Executive and the Legislature is essential if there is a right to have claims
decided by judges who are free from potential domination by other branches of
government.” Id. at 217-18, 101 S.Ct. at 482. Alexander Hamilton wrote in The Federalist
No. 79 of the primacy of maintaining judicial independence and protecting judicial
compensation to achieve that salutary end:
Next to permanency in office, nothing can contribute more to the
independence of the judges than a fixed provision for their support. … In the
general course of human nature, a power over a man’s subsistence amounts
[J-36A-C-2006] - 30
to a power over his will. And we can never hope to see realized in practice
the complete separation of the judicial from the legislative power, in any
system which leaves the former dependent for pecuniary resource on the
occasional grants of the latter.
THE FEDERALIST NO. 79, at 472 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Article V, Section 16(a)’s protection of judicial compensation is but a part of a more
global protection of the fundamental, coequal role of the Judiciary, as provided by the
doctrine of separation of powers. The government of the Commonwealth of Pennsylvania,
like the federal government, is divided into three equal branches, the legislative, see PA.
CONST. art. II, § 1 (“The legislative power of this Commonwealth shall be vested in a
General Assembly … .”); the executive, see PA. CONST. art. IV, § 2 (“The supreme
executive power shall be vested in the Governor ... .”); and the judicial, see PA. CONST. art.
V, § 1 (“The judicial power of the Commonwealth shall be vested in a unified judicial system
… .”). As noted by the United States Supreme Court:
[The doctrine of separation of powers] is not merely a matter of convenience
or of governmental mechanism. Its object is basic and vital … namely, to
preclude a commingling of these essentially different powers of government
in the same hands.
O’Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743 (1933).
Recently, the Supreme Court of Illinois addressed the vulnerability of the Judiciary,
and the concomitant importance of the doctrine of separation of powers. See Jorgensen v.
Blagojevich, 811 N.E.2d 652 (Ill. 2004). The dispute in Jorgensen centered on the
suspension of the Illinois Judiciary’s cost-of-living adjustments (“COLAs”) for the 2003 and
2004 fiscal years by the Illinois General Assembly and the Governor. Under Illinois law,
judicial salaries, along with the salaries for other government officials, were determined by
a Compensation Review Board (“Board”), which in turn was created by a Compensation
Review Act. The Board was required to undertake periodic reevaluations of officials’
[J-36A-C-2006] - 31
salaries, adjust them based on a variety of factors, and then submit a report to the Illinois
General Assembly. After the Board filed its report, the General Assembly was permitted to
disapprove of it in whole or reduce it proportionately.
In 1990, the Board issued a report setting specific salaries for each of the offices and
positions covered under the Compensation Review Act, and also determined that the
salaries were to include automatic annual COLAs. These COLAs were deemed a
component of salary fully vested if and when the Board’s report became law. The 1990
report was submitted to the General Assembly pursuant to the Compensation Review Act.
The General Assembly then adopted a resolution that proportionally reduced the amount of
compensation set by the Board for the various offices, but it expressly approved the
portions of the Board’s report establishing automatic annual COLAs for the affected offices,
including the Illinois Judiciary.
Thereafter, however, in 2002, the Illinois General Assembly suspended the COLAs
for the state’s 2003 fiscal year. In light of this legislative action, the Illinois Judiciary was
not paid the COLA component of their salaries for the 2003 fiscal year. For the 2004 fiscal
year, however, the General Assembly targeted funds, in an appropriation bill which was
passed in the spring of 2003, to implement the COLAs for the Judiciary. The portion of the
bill appropriating funds for the judicial COLAs, however, was removed via a reduction veto
signed by the Governor of Illinois.
Two Illinois trial court judges then filed a class action lawsuit on behalf of all Illinois
judges. The complaint sought a declaration that the Governor’s veto of the 2004 fiscal year
COLA was unconstitutional, and that the act passed by the General Assembly suspending
the 2003 fiscal year COLA violated a provision of the Illinois Constitution which, like its
Pennsylvania and Federal counterparts, prohibited the reduction of judges’ salaries during
their terms of office. The Illinois Supreme Court held that the actions by the coordinate
branches of government violated the Illinois Constitution. In so holding, the court
[J-36A-C-2006] - 32
determined that the COLAs for the 2003 and 2004 fiscal years had been fully vested as a
component of judicial salaries since the 1990 report issued by the Compensation Review
Board.
In undertaking its analysis, the Jorgensen court addressed the importance of the
separation of powers in detail. The court’s analysis is cogent, and is relevant to the matters
at issue, so it bears acknowledgement at length:
Avoiding the concentration of governmental powers in the same
person or political body was seen by the founding fathers as essential to
freedom and liberty. Preventing the excessive concentration of authority by
one branch is why the system of mutual checks and balances by and among
the three branches of government was incorporated into the structure of our
government. 3 C. Antieau, Modern Constitutional Law 376-77 (2d ed.1997).
For checks and balances to work properly in protecting individual liberty,
each of the three branches of government must be kept free from the control
or coercive influence of the other branches. Insuring the independence of
the respective branches of government is the real thrust of the separation of
powers doctrine.
While the three branches of government enjoy equal status under the
constitution, their ability to withstand incursions from their coordinate
branches differs significantly. The judicial branch is the most vulnerable. It
has no treasury. It possesses no power to impose or collect taxes. It
commands no militia. To sustain itself financially and to implement its
decisions, it is dependent on the legislative and executive branches.
This presents a profound problem. As arbiters of the law and
guardians of individual liberties, members of the judiciary often find
themselves at odds with these other branches of government. In fulfilling
their duties, judges must frequently challenge the actions of the very
governmental bodies who provide the financial and other resources they
need to operate. Such challenges are unavoidable. They are an inherent
part of the adjudicatory process. That their constitutional duty requires this of
judges does not mean their decisions will be well received by the other
branches of government. Retribution against the courts for unpopular
decisions is an ongoing threat.
The vulnerability of the judicial branch is exacerbated because, unlike
the executive and legislative branches, the judiciary has no true electoral
[J-36A-C-2006] - 33
constituency. Although judges in Illinois are elected, they do not represent
the voters in the same way executive officers or legislators do. Citizens in a
community typically refer to “their alderman,” “their representative,” “their
senator,” or “their mayor,” but no member of the public can rightly claim a
particular member of the judiciary as “their judge.” Lacking an electoral
constituency, judges command no popular allegiance. That, in turn, renders
them easy targets for those who would condemn unpopular judicial rulings.
In the Federalist, No. 78, Alexander Hamilton touched on some of
these issues. He wrote:
“The executive not only dispenses the honors, but holds the
sword of the community. The Legislature not only commands
the purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated. The judiciary, on the
contrary, has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the
society; and can take no active resolution whatever. It may
truly be said to have neither force nor will, but merely
judgment. This simple view of the matter suggests several
important consequences. It proves incontestably that the
judiciary is beyond comparison the weakest of the three
departments of power; that it can never attack with success
either of the other two; and that all possible care is requisite to
enable it to defend itself against their attacks.”
Id. at 660-61 (citation omitted).
In rendering its decision, the Jorgensen court noted its sensitivity to the fact that
“substantial budgetary challenges currently confront the Governor and the General
Assembly,” and that, despite their best efforts, budget shortfalls persisted. Id. at 669. The
court stressed that it did “not mean to diminish the seriousness of the situation or appear
insensitive to the difficulties faced by our coordinate branches of government.” Id. Those
factors, however, could not deter the court from enforcing a plain constitutional restriction
which was so vital to the separation of powers:
Those difficulties are undeniable, and we are highly cognizant of the need for
austerity and restraint in our spending. As administrators of the judiciary, we
[J-36A-C-2006] - 34
make every effort to economize whenever and however we can. One thing
we cannot do, however, is ignore the Constitution of Illinois.
This court did not set the salaries judges receive, nor did we make
COLAs a component of those salaries. The salaries, including their COLA
component, were provided by law in the manner described earlier in this
opinion. Now that those salaries have been implemented, the constitution
commands that they be paid. No principle of law permits us to suspend
constitutional requirements for economic reasons, no matter how compelling
those reasons may seem.
Id. at 669-670. Accordingly, the Jorgensen court ordered the Illinois Comptroller, upon
receipt of vouchers prepared by the Administrative Office of the Illinois Courts, to issue
warrants drawn on the state treasury to pay the Illinois Judiciary the COLAs which had
vested for the 2003 and 2004 fiscal years.
As the Jorgensen court recognized, the vulnerability of the judicial branch cannot be
allowed to impair its duty and power to decide cases and effectuate its judgment. Thus, for
example, this Court has previously addressed the primacy of the Judiciary’s power to
compel the executive and legislative branches to furnish resources essential to the
operation of the courts.
It is a basic precept of our Constitutional form of Republican
Government that the Judiciary is an independent and co-equal Branch of
Government, along with the Executive and the Legislative Branches. …
Because of the basic functions and inherent powers of the three coequal
Branches of Government, the co-equal independent Judiciary must
possess rights and powers co-equal with its functions and duties, including
the right and power to protect itself against any impairment thereof. …
Expressed in other words, the Judiciary must possess the inherent
power to determine and compel payment of those sums of money which are
reasonable and necessary to carry out its mandated responsibilities, and its
powers and duties to administer Justice, if it is to be in reality a co-equal,
independent Branch of our Government. This principle has long been
recognized, not only in this Commonwealth but also throughout our Nation.
…
[J-36A-C-2006] - 35
The very genius of our tripartite Government is based upon the proper
exercise of their respective powers together with harmonious cooperation
between the three independent Branches. However, if this cooperation
breaks down, the Judiciary must exercise its inherent power to preserve the
efficient and expeditious administration of Justice and protect it from being
impaired or destroyed. …
Commonwealth ex rel. Carroll v. Tate, 274 A.2d 193, 196-97 (Pa. 1971) (citations and
footnote omitted).
We do not reproduce these settled precepts as mere platitudes. Our exploration of
the fundamental reasons underlying the constitutional protection against diminishing judicial
compensation is essential to understanding why it is that the legislative reasoning for
reducing judicial compensation is generally irrelevant to the constitutional inquiry, unless
the Section 16(a) exception applies. The deference that this Court typically applies to
legislative enactments is diminished when the issue involves judicial branch compensation,
because of the very same constitutional edict.
Thus, even if the effect of the reduction in judicial compensation resulting from Act
72 appeared to be warranted in the good faith judgment of the Legislature, the legislative
motivation is not of primary importance. Rather, “[w]hat is at stake is the very
independence of the judiciary and the preservation of separation of powers.” Jorgensen,
811 N.E.2d at 668. If the General Assembly possessed the authority to reduce judicial
compensation in response to a political backlash against the content or manner of adoption
of a legislative provision, and in violation of Article V, Section 16(a), there would be no
barrier preventing it from pursuing other means of attacking the independence of the
Judiciary, and the concern expressed by this Court in Tate concerning the destruction of
the independent Judiciary could very well come to fruition.
This Court has previously discussed Article V, Section 16(a), but not in terms of the
specific issues posed in the matters sub judice. In Firing, 353 A.2d 833, this Court
[J-36A-C-2006] - 36
addressed the issue of whether the State Court Administrator and State Treasurer
wrongfully diminished the salary of a justice of the peace (now magisterial district judge)
during his term of office in violation of Section 16(a). The justice of the peace was
mandatorily retired upon his seventieth birthday, pursuant to Article V, Section 16(b), with
three years remaining on his six-year term of office. The justice of the peace filed a petition
for review in the nature of mandamus in the Commonwealth Court alleging that the
reduction of his salary resulting from his retirement violated Section 16(a). On appeal, this
Court held that the term of the justice of the peace expired upon his retirement at age
seventy, and thus, he was not entitled to his salary, in retirement, for the balance of his
elected term. In support of this holding, we noted the following concerning Section 16(a):
[T]he well-established purpose of the prohibition against diminishing the
compensation of the judiciary during their terms of office, contained in
Section 16(a) … is to maintain the independence of the judiciary from
encroachment by the other branches of government.
Id. at 837.
This Court next addressed Section 16(a) in Flack v. Barbieri, 410 A.2d 1216 (Pa.
1980). In Flack, we rejected a Section 16(a) challenge from a district justice of the peace
who alleged that his compensation was unconstitutionally diminished by the correction of a
clerical error concerning new salaries based on a recertification of the population of all
magisterial districts using the 1970 United States census. This Court determined that no
diminution of salary occurred because an administrative oversight or clerical error resulted
in the justice of the peace receiving a salary higher than that to which he was entitled. We
then added that the purpose of Section 16(a) is to preserve the Judiciary’s independence,
and that this purpose was not impeded in this case. See id. at 1219.
Numerous other decisions by this Court have addressed Section 16(a) in the context
of judges’ pension benefits, and have held that pension benefits are part of the adequate
compensation mandated by Section 16(a), which the General Assembly may not arbitrarily
[J-36A-C-2006] - 37
reduce. See, e.g., Klein v. Commonwealth, State Employees’ Ret. System, 555 A.2d 1216
(Pa. 1989) (plurality opinion); Goodheart v. Casey, 555 A.2d 1210 (Pa. 1989) (plurality
opinion); Catania, 450 A.2d 1342; McKenna v. State Employees’ Ret. Bd., 433 A.2d 871
(Pa. 1981) (plurality opinion); Wright v. Retirement Bd. of Allegheny County, 134 A.2d 231
(Pa. 1957).
b. Given that our cases have recognized the purpose of the protective provision, it is
foreseeable that Act 72 would be defended by appellees on grounds of its supposedly
benign purpose. But, merely because the General Assembly salutarily claimed it did not
intend to interfere with the independence of the Judiciary, that does not mean that the
legislation must be deemed constitutional. As correctly noted by the Judges, the
constitutional test set forth in Section 16(a) is not whether the General Assembly intended
to interfere with the independence of the Judiciary, but rather the simpler, straightforward
question of whether judicial compensation was diminished by a law that does not apply
generally to “all salaried officers of the Commonwealth.” Because the policy declaration
announced by the General Assembly in Section 1(b) of Act 72 is not probative of the
question posed by the plain language of Section 16(a), it cannot control our inquiry.
Indeed, for this Court to accept the notion that legislative pronouncements of benign intent
can control a constitutional inquiry concerning diminishing judicial compensation would be
tantamount to ceding our constitutional duty, and our independence, to the legislative
branch.
c. The primary argument forwarded by the Judges as to why Act 72 does not fit within
the single exception provided in Section 16(a) is that the Act did not diminish the
compensation of all “salaried officers of the Commonwealth.” We agree. As previously
noted, there is no case law interpreting or defining this phrase. However, similar terms,
such as “officer” and “public officer,” which are found in other constitutional provisions have
been addressed in numerous appellate court decisions in this Commonwealth. See
[J-36A-C-2006] - 38
Werner, 681 A.2d at 1337 (determining that Special Investigator III in Inspector General’s
Office was not an “officer” under Article VI, Section 7 of Pennsylvania Constitution, and
explaining that “[a] person will be deemed a public officer if the person is appointed or
elected to perform duties of a grave and important character, and which involve some of
the functions of government, for a definite term.”); Vega, 147 A.2d at 623 (concluding that
police chief was not a “public officer” but merely a “public employee” under a statute
outlining the procedure for the removal of borough police officers, and noting that “the test
to be applied in determining a public officer is … [whether] the officer is chosen by the
electorate, or appointed, for a definite and certain tenure in the manner provided by law to
an office whose duties are of a grave and important character, involving some of the
functions of government, and are to be exercised for the benefit of the public for a fixed
compensation paid out of the public treasury … .”) (quoting Alworth, 85 Pa. Super. at 352);
Commonwealth ex rel. Foreman v. Hampson, 143 A.2d 369, 372-73 (Pa. 1958)
(determining that county solicitor was not a “county officer” under Article XIV, Section 1 of
the Pennsylvania Constitution pursuant to the tests announced in Alworth and Richie);
Commonwealth ex rel. Goshorn v. Moore, 109 A. 611, 612 (Pa. 1920) (per curiam;
adopting opinion of Superior Court) (finding that registration commissioners were “public
officers” within the meaning of Article III, Section 13 of the Pennsylvania Constitution, and
citing Richie for the following factors for determining a “public officer”: “the duties of the
officer are to be exercised for the benefit of the public for a stipulated compensation paid by
the public”; “the term is definite and the tenure certain”; and “the powers, duties, and
emoluments become vested in a successor when the office becomes vacant.”);
Commonwealth ex rel. Wolfe v. Moffitt, 86 A. 75 (Pa. 1913) (concluding that directors of the
poor for Washington County were “public officers” under Article III, Section 13 of the
Pennsylvania Constitution, and noting that “wherever an officer exercises important duties
and has delegated to him some of the functions of government, and his office is for a fixed
[J-36A-C-2006] - 39
term, and the power, duties, and emoluments become vested in a successor when the
office becomes vacant, such official may properly be called a public officer.”); Richie, 74 A.
at 431 (determining that term “public officer” in Article III, Section 13 of the Pennsylvania
Constitution encompassed appointed real estate assessor; factors to be examined are “the
nature of the service to be performed by the incumbent,” the “duties imposed upon him,”
whether “those duties are of a grave and important character, involving in the proper
performance of some of the functions of government,” and “a fixed term.”); Houseman v.
Commonwealth ex rel. Tener, 100 Pa. 222 (1882) (finding that a receiver of delinquent
taxes was a “public officer” under Article VI, Section 4 of the Pennsylvania Constitution);
Alworth, 85 Pa. Super. at 352 (determining the legal counsel for the Board of Registration
Commissioners for the City of Scranton was not a “public officer” within the meaning of
Article III, Section 13 of the Pennsylvania Constitution, and stating the following test: “If the
officer is chosen by the electorate, or appointed, for a definite and certain tenure in the
manner provided by law to an office whose duties are of a grave and important character,
involving some of the functions of government, and are to be exercised for the benefit of
the public for a fixed compensation paid out of the public treasury, it is safe to say that the
incumbent is a public officer … .”).
For purposes of decision here, it is not necessary to pronounce a precise or
comprehensive definition for the term “salaried officers of the Commonwealth” as provided
in Section 16(a). What can be distilled from the cases above is that certain factors are
important in determining whether a person can be said to be an “officer” or “public officer,”
including: (1) whether the person is appointed or elected to the position; (2) whether the
person performs duties of a grave and important character; (3) whether the duties
performed involve some of the functions of government; (4) whether the duties performed
are for the benefit of the public; (5) whether the person receives a fixed salary paid out of
the public treasury; (6) whether the person’s term is definite or fixed; and (7) whether the
[J-36A-C-2006] - 40
powers, duties, and emoluments become vested in a successor when the office becomes
vacant. An evaluation of the above listed factors, as applied to the numerous officers cited
by the Judges, leads to the unavoidable conclusion that Act 72 did not diminish the pay of
“all salaried officers of the Commonwealth.” For example, the executive officers (including
cabinet members) named by the Judges are obviously salaried public officers. Therefore,
Act 72’s reduction of judicial compensation does not fit within the single exception provided
in Article V, Section 16(a); thus, Act 72 is unconstitutional to the extent it decreased judicial
compensation.24
Act 72 does not qualify for the Section 16(a) “all salaried officers” exception for a
second, independent reason. As noted by the Judges, Act 72 did not diminish the current
salaries of the executive officers whose salary structure was specifically addressed in Act
44. As previously noted, the elected executive officers specifically identified and affected
by Act 44 include the Governor, the Lieutenant Governor, the State Treasurer, the Auditor
General, and the Attorney General. Act 44, § 3 (amending 71 Pa.C.S. §§ 1102-03). The
appointed Cabinet members specifically identified and affected by Act 44 were the Adjutant
General, the Secretary of Aging, the Secretary of Agriculture, the Secretary of Banking, the
Secretary of the Commonwealth, the Secretary of Community and Economic Development,
the Secretary of Conservation and Natural Resources, the Secretary of Correction, the
Secretary of Education, the Secretary of Environmental Protection, the Secretary of
General Services, the Secretary of Health, the Insurance Commissioner of the
Commonwealth, the Secretary of Labor and Industry, the Secretary of Public Welfare, the
24 With respect to Senator Jubelirer’s argument that the narrower definition adopted by the
General Assembly was necessary because, otherwise, the exception to the prohibition on
the diminishment of judicial compensation in Section 16(a) would conflict with Article III,
Section 27, we note that the Senator does not cite any authority in support of his position.
In any event, the conflict the Senator perceives is an insufficient ground to ignore the
command of Section 16(a).
[J-36A-C-2006] - 41
Secretary of Revenue, the Pennsylvania State Police Commissioner, and the Secretary of
Transportation. Id. (amending 71 Pa.C.S. § 1102(c)).
The salary increases provided for the named elected executive officers, pursuant to
Act 44’s formulas, were applicable only to individuals elected to these offices after the July
7, 2005 effective date of the Act, see Act 44, § 4(4); correspondingly, the salary increases
applicable to the named Cabinet officers, under the Act 44 formulas, were not available to
individuals appointed to these offices until after December 31, 2006, see Act 44, § 4(3).
Thus, the formula-based salary increases provided to these named executive officers,
unlike the increases in compensation provided to the Judiciary and the Legislature (through
the guise of unvouchered expenses), never became effective because Act 72 repealed Act
44 before any of these executive officers were either elected or appointed. Therefore,
because none of the named executive officers, and in fact no executive officers at all, had
their salaries increased by Act 44, none had their salaries decreased by Act 72.
Accordingly, Section 16(a)’s exception does not apply, and Act 72’s reduction of judicial
compensation cannot withstand constitutional scrutiny for this independent reason.25
25 In addition, under the definition provided in Section 1(c) of Act 72, the General Assembly
pronounced that the executive officers specifically named in Act 44 are “salaried officers of
the Commonwealth.” The officers named in Act 44 include the Governor, the Lieutenant
Governor, the State Treasurer, the Auditor General, the Attorney General, the Adjutant
General, the Secretary of Aging, the Secretary of Agriculture, the Secretary of Banking, the
Secretary of Community and Economic Development, the Secretary of the Commonwealth,
the Secretary of Education, the Secretary of Environmental Protection, the Secretary of
General Services, the Secretary of Health, the Insurance Commissioner, the Secretary of
Labor and Industry, the Secretary of Public Welfare, the Secretary of Revenue, the State
Police Commissioner, the Secretary of Transportation, the Secretary of Corrections, the
Secretary of Conservation and Natural Resources, and the Commissioners of the
Pennsylvania Public Utility Commission. Act 72, § 5 (reenacting and amending Act 39, §
3(a), (b)). Similar to the officers named in Act 44, none of these named officers had their
salaries reduced by Act 72. Thus, even under the definition of “salaried officers of the
Commonwealth” provided by the General Assembly, Act 72 fails to satisfy the exception
provided in Article V, Section 16(a).
[J-36A-C-2006] - 42
We find further support for our conclusion by considering the purpose of the limited
exception provided in Section 16(a). As previously noted, the exception was intended as a
failsafe during a state-wide economic crisis, thus aiding the Commonwealth in maintaining
solvency during such a crisis. As noted by the Judges, the period between July and
November 2005 was not marred by economic disruption. In fact, Act 72 was passed in an
effort to assuage lingering public outrage over certain provisions of Act 44, which seemed
to be expressed when the electorate narrowly rejected former Justice Nigro’s bid for
retention.
Turning to the second issue, concerning the impact of the General Assembly’s policy
declarations in Sections 1(b) and (c) of Act 72, we agree with the Judges that those
declarations cannot alter the constitutional analysis we have engaged in above. As we
have previously noted, the General Assembly’s declaration in Section 1(b) is contrary to the
plain language of Article V, Section 16(a). The test set forth in the constitutional provision
is not whether the General Assembly intended to interfere with the independence of the
Judiciary, but rather is whether judicial compensation was reduced by a law that does not
apply generally to “all salaried officers of the Commonwealth.” The stated intention of the
General Assembly does not and cannot supplant the mandate of the constitutional
provision.
Turning to Section 1(c)’s definition of “salaried officers of the Commonwealth,”
Senator Jubelirer is correct that it is not uncommon for the Legislature or Executive to
interpret constitutional provisions during the exercise of their respective constitutional
duties. However, as the Senator recognizes, the ultimate power and authority to interpret
the Pennsylvania Constitution rests with the Judiciary, and in particular with this Court. See
PA. CONST. art. V, § 2.26 As we have already noted, the legislative definition is contrary to
26 As stated by Alexander Hamilton in The Federalist No. 78:
(continued…)
[J-36A-C-2006] - 43
the plain meaning of Section 16(a), as well as substantial case law examining the definition
of a public officer. Moreover, we recognize that the General Assembly obviously crafted its
definition of the constitutional term in the hope of controlling this Court’s construction of
Article V, Section 16(a)’s limited exception. The inclusion of the definition reflects the
General Assembly’s palpable awareness that Act 72 was constitutionally suspect, to the
extent that it decreased judicial compensation. Therefore, we respectfully decline to accept
as controlling Section 1(c)’s definition of “salaried officers of the Commonwealth” for
purposes of Article V, Section 16(a).
The issue that remains is whether the unconstitutional aspects of Act 72 may be
severed from the remaining provisions of the Act. First, we note that Act 72, unlike Act 44,
does not contain a nonseverability provision. Second, the parties do not argue that, if this
Court were to find Act 72 unconstitutional as applied to the reduction in judicial
compensation, the relevant provisions would not be severable. Accordingly, our decision is
guided by the presumption of severability provided in Section 1925 of the Statutory
Construction Act, 1 Pa.C.S. § 1501 et seq.:
The provisions of every statute shall be severable. If any provision of any
statute or the application thereof to any person or circumstance is held
invalid, the remainder of the statute, and the application of such provision to
other persons or circumstances, shall not be affected thereby, unless the
court finds that the valid provisions of the statute are so essentially and
inseparably connected with, and so depend upon, the void provision or
(…continued)
The interpretation of the laws is the proper and peculiar province of the
courts. A constitution is in fact, and must be, regarded by the judges as a
fundamental law. It therefore belongs to them to ascertain its meaning as
well as the meaning of any particular act proceeding from the legislative
body.
THE FEDERALIST NO. 78.
[J-36A-C-2006] - 44
application, that it cannot be presumed the General Assembly would have
enacted the remaining valid provisions without the void one; or unless the
court finds that the remaining valid provisions, standing alone, are incomplete
and are incapable of being executed in accordance with the legislative intent.
1 Pa.C.S. § 1925. The two exceptions to the presumption of severability noted in Section
1925 are not applicable here because: Act 72’s provisions repealing the increase in judicial
compensation are not essentially and inseparably connected with the other provisions of
Act 72; and, the remaining valid provisions are unquestionably capable of being executed
in accordance with the legislative intent. See PAGE, 877 A.2d at 403; Commonwealth v.
Mockaitis, 834 A.2d 488, 502-03 (Pa. 2003).
In sum, we hold that Act 72 is clearly, palpably, and plainly unconstitutional to the
extent that it diminished judicial compensation; Act 72 directly diminished judicial
compensation, and it did so in a fashion which does not implicate the narrow exception
provided in Article V, Section 16(a). However, under Section 1925 of the Statutory
Construction Act, our finding of this unconstitutional effect does not taint the remainder of
Act 72. Thus, we find that the remainder of Act 72’s repeal of Act 44 is valid.
III. CONSTITUTIONALITY OF ACT 44: THE STILP APPEAL
A. Introduction
Act 44, entitled “A[n] A[ct] [a]mending Titles 42 (Judiciary and Judicial Procedure),
46 (Legislature) and 71 (State Government) of the Pennsylvania Consolidated Statutes,
providing for compensation; and making an inconsistent repeal,” established a
comprehensive plan which adopted formulas tying compensation and future increases in
compensation for the Pennsylvania Judiciary, the General Assembly, and top executive
officials to the salaries of federal judges, members of Congress, and top federal executive
officials. For example, Act 44 provided that the salaries paid to Justices of this Court would
[J-36A-C-2006] - 45
be the same as the base salaries paid to circuit judges of the Courts of Appeals, see Act
44, § 1 (amending 42 Pa.C.S. § 1802(a)); salaries paid to members of the General
Assembly were to be equal to 50% of the base salary paid to members of the United States
House of Representatives, see Act 44, § 2 (amending 46 Pa.C.S. § 1102); and the salary
paid to the Governor was to be equal to 85% of the base salary paid to the Vice President
of the United States, see Act 44, § 3 (amending 71 Pa.C.S. § 1102(a)).
In addition to the provisions adopting new compensation formulas, Act 44 contained
several constitutionally problematic provisions. One such provision was the unvouchered
expense provision, which applied exclusively to the Legislature. As previously noted, this
provision permitted current legislators to receive the dollar-for-dollar equivalent of their
future salary increase immediately through the mechanism of unvouchered expenses, with
the payments ending upon each individual legislator’s next election. See Act 44, § 2
(amending 46 Pa.C.S. § 1107). Another problematic provision was a nonseverability
clause, apparently adopted in anticipation of litigation, which provided that if any provision
of the Act were deemed unconstitutional, the entire Act would be void. See Act 44, § 6.
Stilp raised several constitutional challenges to Act 44. In light of these challenges,
we directed the parties to address the following five issues:
(1) Whether Stilp has standing to bring an action challenging the constitutionality of
Act 44?
(2) Whether the General Assembly’s adoption of Act 44 violated:
a) Article III, Section 1 of the Pennsylvania Constitution;
b) Article III, Section 2 of the Pennsylvania Constitution;
c) Article III, Section 3 of the Pennsylvania Constitution; and/or
d) Article III, Section 4 of the Pennsylvania Constitution?
(3) Whether the system of unvouchered expenses established by Act 44 violated the
Pennsylvania Constitution, and whether this Court should reconsider and/or overrule
the decision in Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323
(Pa. 1986)?
[J-36A-C-2006] - 46
(4) In the event any portion of Act 44 is deemed unconstitutional, whether
enforcement of the nonseverability provision in the statute would violate Article V,
Section 16(a) of the Pennsylvania Constitution?
(5) Whether Stilp’s constitutional challenges are moot?
Stilp, 889 A.2d 499.
Again, because this Court assumed plenary jurisdiction over this matter, there is no
lower court decision or order under review. The questions involved are purely legal; thus,
our scope of review is plenary and our standard of review is de novo. We will address the
first and fifth questions first because a finding either of no standing or of mootness would
obviate the necessity for addressing the constitutional challenges. See Ballou v. State
Ethics Commission, 436 A.2d 186, 187 (Pa. 1981) (“[W]hen a case raises both
constitutional and non-constitutional issues, a court should not reach the constitutional
issue if the case can properly be decided on non-constitutional grounds.”).
B. Standing
As a preliminary matter, and for purposes of this appeal, we accept that Stilp has
standing to challenge the constitutionality of Act 44. Specifically, we find that Stilp has
satisfied the requirements necessary for taxpayer standing consistent with the recognition
of this exception to traditional standing requirements announced in Application of Biester,
409 A.2d 848 (Pa. 1979). Under Biester, a taxpayer has standing to challenge an act if: (1)
the governmental action would otherwise go unchallenged; (2) those directly and
immediately affected by the complained-of matter are beneficially affected and not inclined
to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels
is unavailable; and (5) no other persons are better situated to assert the claim. Pittsburgh
Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 662 (Pa. 2005) (citing Consumer
Party, 507 A.2d at 329). If not for Stilp’s challenge, Act 44 would go unchallenged because
[J-36A-C-2006] - 47
the very individuals who enacted the legislation -- i.e., the members of the General
Assembly -- were directly and beneficially affected by the legislation and thus would not be
inclined to challenge its constitutionality. Therefore, the first two requirements are satisfied.
Judicial relief is appropriate because it is the court’s role to determine the constitutionality
of a piece of legislation. Furthermore, redress through other channels is unavailable since
there are no agencies or tribunals with jurisdiction to grant the redress sought by Stilp.
Lastly, there are no other persons better situated to assert the claim because all those
directly and immediately affected by Act 44 are beneficially affected by the Act and have
not brought, and are not likely to bring, a cause of action in state court.27 This is especially
so because Act 72 has now repealed Act 44. Accordingly, Stilp has taxpayer standing to
maintain this action.
C. Mootness
Additionally, we find that, notwithstanding Act 72’s repeal of Act 44, Stilp’s
constitutional challenges are not moot. See Commonwealth, Dep’t of Envtl. Res. v.
Jubelirer, 614 A.2d 204, 211-12 (Pa. 1992) (where challenged statute is later repealed,
judicial consideration of its constitutionality is moot). Because of our above determination
that the provisions of Act 72 repealing the Act 44 formula which resulted in compensation
increases for the Judiciary are unconstitutional, part of Act 44, at least presumptively, is still
operative. Stilp’s challenges regarding Article III procedural flaws therefore are not moot.
Moreover, Stilp’s constitutional challenge to Act 44’s unvouchered expense provision and
his related challenge to this Court’s precedent in Consumer Party are reviewable because
27 We note that Representative Greg Vitali was a plaintiff in a federal court action which
challenged the constitutionality of Act 44. See Common Cause of Pennsylvania v.
Commonwealth, Civ. Action No. 1:05-CV-2036 (M.D. Pa. June 12, 2006). No legislator,
however, joined Stilp in the present action, nor did any file a state court challenge.
[J-36A-C-2006] - 48
Act 44’s nonseverability provision purports to require declaring all of Act 44 void if any
individual provision were deemed unconstitutional.
D. Article III Procedural Challenges
Stilp maintains that the General Assembly violated the procedural protections
provided in Article III, Sections 1-4 of the Pennsylvania Constitution. Our recent decision in
PAGE, supra, is controlling on this subject. In PAGE, a group of petitioners challenged the
procedure by which the Pennsylvania Race Horse Development and Gaming Act (“Gaming
Act”) was enacted, arguing that the General Assembly violated Article III, Sections 1, 3, 4,
6, and 10. Prior to this Court’s analysis of each discrete constitutional challenge, we
discussed the reasoning behind the adoption of Article III:
Article III can be viewed as a constellation of constitutional requirements that
govern various aspects of the legislative enactment procedure. Each of
these provisions was born in a time in which Pennsylvanians were
experiencing rapid growth economically and “‘wrenching’ social change… .”
An enormous growth in the corporate form of business organization led to
significant concentrations of wealth and the corruption of numerous
legislators. Corruption took the form of special laws legislation, logrolling,
and arbitrary favoritism and was met with a demand for reform. The
Constitutional Convention of 1872-73 was convened to reform corrupt
legislative behavior, and to this end, the result was the constitutional
strictures contained in Article III. Thus, while these changes to the
Constitution originated during a unique time of fear of tyrannical corporate
power and legislative corruption, these mandates retain their value even
today by placing certain constitutional limitations on the legislative process.
PAGE, 877 A.2d at 394 (citations and footnote omitted). Generally, Article III’s purpose is
“to place restraints on the legislative process and encourage an open, deliberative and
accountable government.” City of Philadelphia, 838 A.2d at 585 (quoting Pennsylvania
AFL-CIO ex rel. George v. Commonwealth, 757 A.2d 917, 923 (Pa. 2000)).
Following preliminary determinations regarding jurisdiction and standing, the PAGE
court comprehensively surveyed and summarized guiding principles in the area of Article
[J-36A-C-2006] - 49
III, ultimately holding that the majority of the Gaming Act passed constitutional muster;
however, we did strike certain portions of the Gaming Act as violative of Article III, Section 3
and pursuant to the Act’s severability provision.28 PAGE, 877 A.2d at 419. Specifically,
with regard to the single subject requirement of Article III, Section 3, we found that the
single unifying subject of the Gaming Act was the regulation of gaming, and that a majority
of the Act’s provisions, except for certain disbursement provisions, were germane to this
single subject. Id. at 404. We also determined that the title of the Gaming Act put a
reasonable person on notice of the general subject matter of the Act, therefore satisfying
the clear expression of title requirement provided in Article III, Section 3. Id. at 406.
Concerning the Article III, Section 1 challenge, we concluded that the process by which the
Gaming Act was enacted did not violate the constitutional provision’s prohibition on
alteration or amendment so as to change the original purpose of the Act. Id. at 409-10.
Finally, with regard to the challenge raised under Article III, Section 4, we concluded that
because the petitioners had failed to establish a violation under Article III, Section 1 or 3,
and because the record demonstrated that the bill which ultimately became the Gaming Act
was read on three separate occasions in each House, the petitioners failed to prove a
Section 4 violation. Id. at 410.
When a challenge is forwarded concerning the process by which legislation is
enacted, rather than the substance of the legislation, concerns of comity and separation of
powers between the branches necessarily arise. Cases such as PAGE demonstrate that
28 The Gaming Act contained a severability clause stating that provisions of the Act were to
be deemed severable except for two limited exceptions concerning the Pennsylvania
Gaming Control Board and the Slot Machine License fee. See 4 Pa.C.S. § 1902; PAGE,
877 A.2d at 390 n.3. We note that the severability provision follows the general statutory
construction rule that the provisions of every statute shall be deemed severable. 1 Pa.C.S.
§ 1925.
[J-36A-C-2006] - 50
this Court takes seriously its responsibility as a coordinate and equal branch of
government, while showing a measure of appropriate deference to the legislative branch
when it comes to matters affecting the mechanics of bills and the legislative process.29 It is
worth noting that, in our system of government, although this Court decidedly has the final
word on constitutionality, the obligation to abide by the mandates of the Pennsylvania
Constitution, including those procedural restraints governing the General Assembly found
in Article III, applies to all three branches, and we do not proceed upon a cynical
assumption that our sister branches do not take their constitutional obligations seriously. It
is within the power, and arguably it is the duty, of each individual legislator, and the
Governor, to consult his or her own conscience about the constitutionality of proposed
legislation in deciding whether to support it or endorse it.
We also note that, in our democratic form of government, there are other methods,
besides lawsuits, which may serve as a corrective tool for legislative excesses, the primary
method being the political process itself. This case has borne out the effectiveness of that
process. The legislative appellees themselves have emphasized this very point in several
respects. We cannot overstate, however, that we would not approve patently
unconstitutional legislation merely because the political process could correct it.
The strong presumption of constitutionality afforded legislative enactments includes
the procedure by which legislation is enacted. PAGE, 877 A.2d at 393. Thus, Act 44
cannot be deemed unconstitutional unless we find that it clearly, palpably, and plainly
violates the Constitution. See id.
29 Notwithstanding this salutary deference, this Court does not avoid its constitutional task
of reviewing Article III procedural challenges, and striking down legislation which clearly
and palpably violates the Constitution. For example, in City of Philadelphia, supra, we
struck a statute as constitutionally infirm under Article III, Section 3, finding that the
proposed subject of the legislation was too broad to qualify as a single subject.
[J-36A-C-2006] - 51
A logical beginning for a discussion of Article III procedural challenges is the
sequence of events surrounding the passage of Act 44. The relevant facts are matters of
public record and are not in dispute. On May 3, 2005, House Bill 1521 (“HB 1521”),
printer’s no. 1865, a one page document, was introduced in the House of Representatives
as “An A[ct] [r]elating to compensation for executive branch officials.” HB 1521 contained a
provision declaring its short title to be the “Executive Branch Official Compensation Act.”
Aside from a definitional section, HB 1521 contained a single provision which directed that
no executive official could receive an annual salary exceeding the annual salary paid to the
Governor. On the same date that it was introduced in the House, HB 1521 was referred to
the House State Government Committee and, thereafter, it was reported as committed on
May 11, 2005. It had its first consideration by the House on May 11, 2005, but was then
tabled. It was given second consideration on June 6, 2005. HB 1521 was then re-referred
to the House Appropriations Committee on June 6, 2005, and re-reported as committed on
that date. It was given third consideration on June 8, 2005, and received final passage in
the House on June 8, 2005 by a vote of 157-40.
On June 13, 2005, HB 1521 was referred to the Senate State Government
Committee, and was reported as committed on June 30, 2005. HB 1521 was first
considered on June 30, 2005 and received second consideration on July 1, 2005. It was
then re-referred to the Senate Appropriations Committee on July 1, 2005. On July 6, 2005,
HB 1521 was slightly amended and given a new printer’s number (No. 2561). It remained a
one-page document, and the amendment merely added a section providing that the act
applied only to executive officials who took office after November 1, 2006. This amended
version of HB 1521 was then re-reported to the Senate and received third consideration
and final passage on July 6, 2005 by a vote of 28-22.
On July 6, 2005, the new version of HB 1521 was referred to the House Rules
Committee, and reported as committed on that date. The House non-concurred in the
[J-36A-C-2006] - 52
Senate amendment, and the Senate non-concurred in response, insisting on its
amendment. A conference committee consisting of three members from each chamber
was duly organized. On July 7, 2005, HB 1521 was altered and amended by the
conference committee. The conference committee’s new version of HB 1521 was now
twenty-two pages long, had a new printer’s number (No. 2570), and was given a new title:
“A[n] A[ct] [a]mending Titles 42 (Judiciary and Judicial Procedure), 46 (Legislature) and 71
(State Government) of the Pennsylvania Consolidated Statutes, providing for
compensation; and making an inconsistent repeal.” This version of HB 1521 was passed
by the House by a vote of 119-79, and passed by the Senate by a vote of 27-23. It was
then signed into law by Governor Rendell as Act 44 in the early morning hours of July 7,
2005.
Before beginning our analysis, it is necessary to align the parties and amici into two
camps based on their stated positions regarding the alleged Article III violations. The first
group includes (1) Stilp, (2) Treasurer Casey, and (3) amicus Timothy Potts; Russ
Diamond, on behalf of PA Clean Sweep, Inc.; and Eric Epstein, Coordinator of
RocktheCapital.org (hereinafter, “Potts”). Collectively, this group alleges that the General
Assembly violated Article III, Sections 1-4 during the passage of Act 44.30 31 Both Stilp and
30 There is one caveat: Treasurer Casey “concedes” that Act 44 survives constitutional
scrutiny under Article III, Section 3, noting, however, that “although the letter of Section 3
may have been followed, the General Assembly did considerable violence to its spirit.”
Treasurer Casey’s Brief at 13.
31 In its amicus brief, Potts does not offer a detailed analysis as to how Act 44 violates the
strictures of each individual constitutional provision. Rather, the thrust of its argument is
that this Court’s decisions announcing our approach and analysis on this subject,
particularly Consumer Party and PAGE, should be reconsidered because they have led to
the General Assembly falsely believing that Article III, Sections 1-4 are mere technicalities
that can be circumvented, thus leading to “stealth legislation” as exemplified by Act 44.
(continued…)
[J-36A-C-2006] - 53
Treasurer Casey offer slightly divergent reasons in support of this position; therefore, their
arguments will be summarized separately. The second group includes (1) the remainder of
the appellees, i.e., Attorney General Corbett on behalf of the Commonwealth, Senator
Jubelirer, and Speaker Perzel, (2) amicus Judge Herron, and (3) amici the Brown
appellants. Because this group offers similar arguments defending Act 44’s
constitutionality in the face of the Article III challenges, we shall summarize them as one.
Additionally, for ease and clarity of discussion, we will discuss the Article III, Section 3
challenge first.
1. Article III, Section 3 challenge
Article III, Section 3 of the Pennsylvania Constitution, entitled “Form of Bills,”
provides in full:
No bill shall be passed containing more than one subject, which shall be
clearly expressed in its title, except a general appropriation bill or a bill
codifying or compiling the law or a part thereof.
(…continued)
Unlike Potts, Stilp and Treasurer Casey do not ask for reconsideration of PAGE, a
case issued approximately one year ago. Indeed, the parties agree that PAGEcontrols the
analysis that must be conducted in evaluating the present Article III challenges. The basic
legal principle of stare decisis generally commands judicial respect for prior decisions of
this Court and the legal rules contained in those decisions. As recently noted by the United
States Supreme Court, “stare decisis promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process.” Randall v. Sorrell,
__ U.S. __, 126 S.Ct. 2479, 2489 (2006) (Opinion Announcing the Judgment of the Court)
(citations and internal quotations omitted). Potts has articulated no persuasive reason to
overrule the approach we so recently articulated and applied in PAGE. This Court is
disinclined to revisit such recent precedent particularly where, as here, the challenging
party is an amicus and fails to acknowledge and argue stare decisis principles. See
generally id. at __, 126 S.Ct. at 2500 (Alito, J., concurring in part and concurring in
judgment).
[J-36A-C-2006] - 54
PA. CONST. art. III, § 3. This constitutional provision “sets forth dual mandates for the
General Assembly which prohibits the passing of a bill that contains more than one subject
and requires that the subject be clearly expressed in its title.” PAGE, 877 A.2d at 394.
Stilp merges his arguments for the single-subject and clearly expressed title
requirements. Regarding the single-subject directive, Stilp argues that the subject of the
original version of HB 1521 was to ensure that no executive official receive a higher salary
than the Governor does. Stilp maintains that the amendments to HB 1521, which
addressed compensation for all three branches of government, are not germane to this
original subject. With respect to the clearly expressed title requirement, Stilp argues that
the original title of HB 1521 -- “A[n] A[ct] [r]elating to compensation for executive branch
officials” -- did not place anyone on notice that Act 44 as ultimately enacted involved
substantial changes to the compensation system governing all three branches of
government.
Appellees counter that the General Assembly did not violate Article III, Section 3 in
enacting Act 44. Appellees contend that all versions of HB 1521 maintained a single
unifying subject -- i.e., compensation for government officials. Appellees contend that all
provisions added during the legislative process were germane to this single subject.
Appellees also argue that Act 44’s title -- “A[n] A[ct] [a]mending Titles 42 (Judiciary and
Judicial Procedure), 46 (Legislature) and 71 (State Government) of the Pennsylvania
Consolidated Statutes, providing for compensation; and making an inconsistent repeal” -- is
clear because a reasonable person could read it and discover that it amends the provisions
affecting compensation provided to the Judiciary, Legislature, and state government.
In PAGE, this Court reaffirmed the standard for reviewing a single-subject challenge:
“where the provisions added during the legislative process assist in carrying out a bill’s
main objective or are otherwise ‘germane’ to the bill’s subject as reflected in its title,” the
single-subject stricture is satisfied. PAGE, 877 A.2d at 395 (quoting City of Philadelphia,
[J-36A-C-2006] - 55
838 A.2d at 587). In conducting such a review, a court must not define the main objective
of a bill too narrowly, and thus must afford the General Assembly considerable deference,
as Article III must not become a license for the Judiciary to “exercise a pedantic tyranny”
over the Legislature’s efforts. City of Philadelphia, 838 A.2d at 588 (citing Estate of
Rochez, 515 A.2d 899, 902 (Pa. 1986)); see Payne v. School Dist. of Coudersport
Borough, 31 A. 1072, 1074 (Pa. 1895) (“Few bills are so elementary in character that they
may not be subdivided under several heads … .”). Conversely, there must also be limits on
how broadly a main objective is defined as well as on germaneness, or else the strictures
announced in Section 3 “would be rendered impotent to guard against the evils that it was
designed to curtail.” City of Philadelphia, 838 A.2d at 588 (“There must be limits … as
otherwise virtually all legislation, no matter how diverse in substance, would meet the
single-subject requirement.”); see PAGE, 877 A.2d at 395 (“Article III, Section 3 must have,
however, some limits on germaneness, for otherwise virtually all legislation -- no matter
how diverse in substance -- would meet the single-subject requirement, rendering the
strictures of Section 3 nugatory.”); Payne, 31 A. at 1074 (“[N]o two subjects are so wide
apart that they may not be brought into a common focus, if the point of view be carried back
far enough.”).
Here, we conclude that HB 1521 maintains a single unifying subject -- regulating
compensation for government officials. Specifically, the version of HB 1521 as passed
adopts formulas which resulted in increased compensation for the Judiciary, the
Legislature, and high-ranking executive officials, and provides a mechanism tying future
compensation for state officials to the compensation provided to designated federal
officials. All of the provisions contained in Act 44 are germane to the subject of regulating
compensation for government officials. Accordingly, we hold that Act 44 does not clearly,
palpably, and plainly violate Article III, Section 3’s single-subject requirement.
[J-36A-C-2006] - 56
Turning to the clearly expressed title challenge, this Court set forth in PAGE the
burden that a party must overcome to sustain such a challenge: “[O]ne who seeks to
declare a title unconstitutional under this provision must demonstrate either (1) that the
legislators and the public were actually deceived as to the act’s contents at the time of
passage, or (2) that the title on its face is such that no reasonable person would have been
on notice as to the act’s contents.” PAGE, 877 A.2d at 406 (quoting Estate of Rochez, 515
A.2d at 902). In other words, a title is constitutional “if it puts a reasonable person on notice
of the general subject matter of the act.” Id. (citing Ewalt v. Pennsylvania Turnpike
Commission, 115 A.2d 729 (Pa. 1955)).
Based on a simple comparison of Act 44’s title with its contents, we conclude that
Stilp has failed to establish an Article III, Section 3 clear expression of title violation. The
title clearly indicates that Act 44 amends the provisions governing compensation paid to the
members of the three branches of government. Indeed, Stilp erroneously cites the title of
the unamended version of HB 1521 as the title of the Act voted on by the legislators.
Furthermore, Stilp does not allege that any legislator was actually deceived as to Act 44’s
contents at the time of passage nor do any legislators aver being deceived by the title.
Finally, the title clearly puts a reasonable person on notice of the general subject matter of
the Act. Accordingly, recognizing the strong presumption of constitutionality, as we must,
we hold that Act 44 passes constitutional muster under Section 3’s clear expression of title
requirement.
2. Article III, Section 1 challenge
Next, Stilp contends that Act 44 violated Article III, Section 1 of the Pennsylvania
Constitution. This provision, entitled “Passage of Bills,” provides:
No law shall be passed except by bill, and no bill shall be so altered or
amended, on its passage through either House, as to change its original
purpose.
[J-36A-C-2006] - 57
PA. CONST. art. III, § 1. All parties agree that PAGE sets forth the relevant inquiry for a
challenge to legislation under Article III, Section 1. Notably, the PAGE Court set forth a
new test under this constitutional provision. First, a reviewing court must consider the
original purpose of the legislation “in reasonably broad terms,” compare it to the final
purpose, and then decide whether there has been an alteration or amendment that
changed the original purpose. Second, the court must consider whether the title and
contents of the bill in its final form are deceptive. “If the legislation passes both the purpose
comparison and deception inquiries, it will pass constitutional muster.” PAGE, 877 A.2d at
409.
Stilp maintains that the original purpose of HB 1521 was to ensure that the Governor
was the highest paid executive official and that purpose was drastically altered during the
amendment process. The result, he argues, was unconstitutional legislation providing large
raises in compensation for the Judiciary, the General Assembly, and high-ranking executive
officials. Regarding the second prong, Stilp argues that the original title of HB 1521 -- “A[n]
A[ct] [r]elating to compensation for executive branch officials” -- was deceptive as it failed to
provide notice of the substantial overhaul of the compensation paid to officials in all three
branches of government.
Treasurer Casey addresses only the first prong of the PAGE test, arguing that the
original version of HB 1521 and the enacted version of the bill share the common purpose
of “compensation.” The Treasurer maintains that such a purpose is too broad and general
to be constitutional under Section 1’s stricture, particularly in light of this Court’s statement
that the aim of Section 1 is “some degree of continuity in object or intention.” Id. at 408.
In response, appellees contend that the original purpose of HB 1521, viewed in
reasonably broad terms, was to provide compensation for government officials. Appellees
argue that the amendments made to HB 1521 were consistent with this purpose.
Moreover, appellees maintain that the title and contents of HB 1521 in its final form were
[J-36A-C-2006] - 58
not deceptive, and the record does not reflect that any legislators who voted against the bill
did so because they were unclear of its contents.
Applying PAGE, we first note that the original version of HB 1521, as introduced in
the House on May 3, 2005, directed that the Governor be the highest paid official in the
Executive branch. Considering the original purpose in reasonably broad terms, and
consistently with our discussion above concerning the single subject challenge, we find that
the original purpose of the bill was to regulate compensation for government officials. We
acknowledge that HB 1521 in final form significantly amended and expanded the original
version. We find, however, that the principal object of the bill throughout the legislative
process from inception to passage was regulating compensation for government officials.
Accordingly, we conclude that the bill was not altered or amended to change the original
purpose in passage through the Legislature.
As for the second prong of the construct announced in PAGE, we must consider
whether the title and contents of the bill in its final form were deceptive. In accordance with
our determination above concerning Stilp’s clear expression of title challenge under Article
III, Section 3, we find that the title of HB 1521 in final form was not deceptive as it placed a
reasonable person on notice of the general subject matter of the bill. See PAGE, 877 A.2d
at 406. Moreover, concerning the final contents, although we acknowledge that the
amendments to HB 1521 were included at the end of the legislative process and were
substantive, we find that the amendments were not deceptive.
Accordingly, and once again being mindful of the presumption of constitutionality, we
conclude that HB 1521 was not altered or amended in passage through both legislative
houses so as to change the original purpose of the bill.
3. Article III, Section 2 challenge
Stilp asserts that Act 44 also violated Article III, Section 2 of the Pennsylvania
Constitution. This provision, entitled “Reference to Committee; Printing,” states that:
[J-36A-C-2006] - 59
No bill shall be considered unless referred to a committee, printed for the use
of the members and returned therefrom.
PA. CONST. art. III, § 2.
Stilp argues that because HB 1521 was substantially altered by the amendments,
the final version was required to be re-referred to committee. Stilp further asserts that the
legislative history clearly indicates that the final version of HB 1521 could not have been
printed and distributed to all legislators with enough time to fully review and comprehend
the legislation prior to the vote on July 7, 2005.
Treasurer Casey contends that proper procedure under Section 2 requires that a bill
be reported out of a standing committee in each House before the first of its three
considerations in each House. The Treasurer maintains that the General Assembly
violated this procedure because the final version of HB 1521 was reported out of a
conference committee and then given its first and only consideration the same day that it
was passed. The Treasurer’s argument, like Stilp’s, is based on the premise that the
version of HB 1521 as passed was significantly different from the version of the bill that was
referred to committee during the legislative process.
Appellees cogently respond that a constitutional challenge under Section 2 can only
be sustained if an Article III, Section 1 or 3 violation is established. PAGE, 877 A.2d at 410
(“[A]n amended bill need not be referred to committee and considered on those separate
days if the amendments are germane to, and do not wholly change, the general subject of
the bill.”) (quoting Pennsylvania AFL-CIO v. Commonwealth, 691 A.2d 1023, 1037 (Pa.
Cmwlth. 1997), aff’d, 757 A.2d 917 (Pa. 2000)). Appellees argue that, because the
General Assembly did not violate Section 1 or 3 in enacting Act 44, there can be no
violation under Section 2. Moreover, appellees maintain that it is clear from the record that
[J-36A-C-2006] - 60
HB 1521 was referred to committee during the legislative process and that it was printed
and distributed to all legislators prior to the vote.
It is settled that an amended bill does not need to be referred to committee, as
required by Article III, Section 2, if the amendments to the bill added during the legislative
process are germane to and do not change the general subject of the bill. DeWeese v.
Weaver, 824 A.2d 364, 368 n.7 (Pa. Cmwlth. 2003); Pennsylvania AFL-CIO, 691 A.2d at
1037. Stilp and Treasurer Casey claim that Section 2 was violated because the subject
and purpose of the original version of HB 1521 were significantly altered during the
legislative process. As noted above, however, we have concluded that they failed to
demonstrate a violation of Article III, Section 1 or 3. In addition, a review of the record
reveals that HB 1521 was referred to the House State Government Committee on May 3,
2005, to the House Appropriations Committee on June 6, 2005, to the Senate State
Government Committee on June 13, 2005, to the Senate Appropriations Committee on July
1, 2005, to the House Rules Committee on July 6, 2005, and to a joint conference
committee on July 7, 2005. Accordingly, because Stilp and Treasurer Casey have failed to
establish a violation of Article III, Section 1 or 3, and because the record clearly
demonstrates that the bill was referred to committee and printed for the General Assembly
members, Stilp and Treasurer Casey have failed to establish an Article III, Section 2
violation.
4. Article III, Section 4 challenge
Stilp’s final procedural challenge pertains to Article III, Section 4 of the Pennsylvania
Constitution. This provision, entitled “Consideration of Bills,” provides in full:
Every bill shall be considered on three different days in each House. All
amendments made thereto shall be printed for the use of the members
before the final vote is taken on the bill and before the final vote is taken,
upon written request addressed to the presiding officer of either House by at
least 25% of the members elected to that House, any bill shall be read at
length in that House. No bill shall become a law, unless on its final passage
[J-36A-C-2006] - 61
the vote is taken by yeas and nays, the names of the persons voting for and
against it are entered on the journal, and a majority of the members elected
to each House is recorded thereon as voting in its favor.
PA. CONST. art. III, § 4.
Stilp maintains that the amended and final version of HB 1521 was not created, nor
considered by both Houses, until July 7, 2005, the same date that it was passed and
signed into law as Act 44. Therefore, according to Stilp, because the substance of HB
1521 had been altered by the amendments, the final version of HB 1521 was required to be
considered on three different days in each House.
Treasurer Casey concedes that under PAGE, a violation of Section 4 cannot be
established unless either Article III, Section 1 or 3 has also been violated. PAGE, 877 A.2d
at 410. Consistent with his assertion that Section 1 was violated, however, the Treasurer
maintains that the final version of HB 1521 changed the purpose of the original version, and
therefore the consideration of the original bill became a nullity. Thus, the Treasurer argues,
the General Assembly was required to consider the final version on three different days in
each House in accordance with Section 4. The Treasurer argues that because each house
of the General Assembly considered and voted on the final version of HB 1521 on only one
day, Section 4 was violated.
Appellees’ response is similar to their answer concerning the Article III, Section 2
challenge. Specifically, appellees contend that in order to establish an Article III, Section 4
violation, an Article III, Section 1 or 3 violation must first be demonstrated by the challenger.
Id. Appellees argue that because Stilp and Treasurer Casey have failed to establish a
Section 1 or 3 violation, their challenge under Section 4 must also fail. Moreover, appellees
maintain that the record clearly demonstrates that HB 1521 was considered on three
separate days in each House during the legislative process.
[J-36A-C-2006] - 62
Similar to an Article III, Section 2 challenge, it is settled that a bill does not have to
be considered on three separate days, as otherwise required by Article III, Section 4, if the
amendments to the bill added during the legislative process are germane to and do not
change the general subject of the bill. Id.; DeWeese, 824 A.2d at 368 n.7; Pennsylvania
AFL-CIO, 691 A.2d at 1037. Our analysis for this claim, therefore, is identical to our
analysis of the Section 2 claim. Thus, because Stilp and Treasurer Casey claim that
Section 2 was violated because HB 1521 was significantly altered during the legislative
process, they must first establish a violation of Article III, Section 1 or 3, which they have
failed to do. In addition, a review of the record reveals that HB 1521 was considered on
three separate days in the House (May 11, June 6, and June 8, 2005), and three separate
days in the Senate (June 30, July 1, and July 6, 2005). Accordingly, because Stilp and
Treasurer Casey have failed to establish a violation of Article III, Section 1 or 3, and
because the bill was read on three different occasions, Stilp and Treasurer Casey have
failed to establish an Article III, Section 4 violation.
E. Legislative Unvouchered Expense Allowances and Consumer Party
Stilp’s last constitutional challenge concerns, not the entirety of Act 44, but the
legislative unvouchered expense allowance provision. See Act 44, § 2 (amending 46
Pa.C.S. § 1107). This provision reads as follows:
§ 1107. Additional expenses
(a) Senate.--
(1) Beginning on the effective date of this subsection and ending November
30, 2008, a member of the Senate shall receive monthly, in addition to any
allocation for clerical assistance and other actual expenses, an unvouchered
expense allocation in the amount of 1/12 of the difference between:
(i) the amount specified for a member in:
[J-36A-C-2006] - 63
(A) section 1102(a) (relating to members of the General Assembly) plus
section 1104 (relating to cost of living) as appropriate; or
(B) section 1103(a) (relating to legislative officers and leaders) plus section
1104 as appropriate; and
(ii) the amount calculated for that member as of the effective date of this
subparagraph pursuant to the act of September 30, 1983 (P.L. 160, No. 39),
known as the Public Official Compensation Law.
(2) This subsection shall expire November 30, 2008.
(b) House of Representatives.--
(1) Beginning on the effective date of this subsection, a member of the House
of Representatives may receive each month, in addition to any allocation for
clerical assistance and other actual expenses, an unvouchered expense
allocation in the amount of 1/12 of the difference between:
(i) the amount specified for a member in:
(A) section 1102(b); or
(B) section 1103(b) as appropriate; and
(ii) the amount calculated for that member as of the effective date of this
subparagraph pursuant to the Public Official Compensation Law.
(2) The Rules Committee of the House of Representatives shall determine
the procedure by which a member of the House of Representatives may
receive an allocation under this subsection.
(3) This subsection shall expire November 30, 2006.
Act 44, § 2 (amending 46 Pa.C.S. § 1107) (footnote omitted).
Specifically, Stilp contends that the unvouchered expense allowances provided in
Act 44 violate Article II, Section 8 of the Pennsylvania Constitution. This provision, entitled
“Compensation,” reads as follows:
[J-36A-C-2006] - 64
The members of the General Assembly shall receive such salary and
mileage for regular and special sessions as shall be fixed by law, and no
other compensation whatever, whether for service upon committee or
otherwise. No member of either House shall during the term for which he
may have been elected, receive any increase of salary, or mileage, under
any law passed during such term.
PA. CONST. art. II, § 8.
Stilp maintains that Act 44’s unvouchered expense allowances are an
unconstitutional attempt to circumvent Article II, Section 8’s express proscription against a
mid-term increase in legislative salary by allowing incumbent legislators to secure pay
raises immediately without waiting for the next election. Stilp highlights two mechanical
aspects of the allowances that, in his view, unquestionably prove that the allowances are a
de facto salary increase. First, he notes that the unvouchered expenses authorized in Act
44 equaled the exact dollar-for-dollar amount of the increase in legislative salaries provided
under the formula adopted by Act 44 and which were to take effect after the next election
for each individual legislator. Indeed, the amount of the unvouchered expense allowance
was not expressed in dollar terms, but only with reference to the equivalent percentage of
the future salary increase. Second, Stilp notes that the unvouchered expenses expired at
different times, depending upon the election cycle. Thus, the expenses were available from
July 7, 2005 (the effective date of Act 44) until November 30, 2006 for members of the
House, all of whose seats would be up for election in the 2006 general election. For
Senators, however, the expenses were made available until November 30, 2006 or
November 30, 2008, depending on the term of office for each Senator. Concisely, Section
2 of Act 44, amending 46 Pa.C.S. § 1107, permitted legislators to immediately receive, as
unvouchered expenses, the precise amount of their future salary increase until their actual
salary increases took effect following each legislator’s next election. Furthermore, Stilp
argues that the unvouchered expense allowances were not intended as compensation for
[J-36A-C-2006] - 65
actual expenses incurred by legislators; in this regard, he asserts, the $7,500 in vouchered
expenses already provided to legislators each year is more than adequate to cover actually
incurred expenses.32 33
In connection with his contention that the unvouchered expense provision is
unconstitutional, Stilp argues that this Court’s decision in Consumer Party, 507 A.2d 323,
which approved the General Assembly’s use of unvouchered expenses in prior
compensation legislation, must be overruled. Stilp also argues that we should disapprove
of two Commonwealth Court cases which relied on Consumer Party to uphold unvouchered
expense provisions enacted in subsequent compensation legislation. See Stilp v.
Commonwealth, 699 A.2d 1353 (Pa. Cmwlth. 1997); Kennedy v. Commonwealth, 546 A.2d
733 (Pa. Cmwlth. 1988) (en banc). Stilp initially maintains that the portion of Consumer
Party approving unvouchered expenses was actually dicta because the issue was not
properly before the Court. Stilp argues that dicta has no precedential value, and that
32 Alternatively, Stilp argues that if this Court does not find the unvouchered expense
provision unconstitutional, the portion of the provision which allows for additional
unvouchered expenses for legislative leadership and committee service must
independently be deemed unconstitutional under Article II, Section 8. This argument is
premised on that part of Act 44 which provides higher salaries for leadership and
committee service on top of the formula which increased the salaries provided to rank-andfile
legislators. See Act 44, § 2 (amending 46 Pa.C.S. § 1103). Stilp notes that, because
legislative officers and leaders receive higher salaries than rank-and-file legislators, the
amount of unvouchered expenses provided to them is also greater since the unvouchered
expenses are based on each legislator’s future salary. In light of our disposition of these
matters, we do not reach this distinct argument.
33 Respecting remedy, Stilp maintains that all members of the General Assembly who
elected to take the unvouchered expenses following passage of Act 44 must return those
payments if they have not done so already. We disagree. Any legislator who elected to
receive unvouchered expense allowances acted in good faith reliance on the presumption
of Act 44’s constitutionality. See City Deposit Bank & Trust Co. v. Zoppa, 9 A.2d 361, 362
(Pa. 1939) (“Acts done pursuant to statute may be sustained though it be subsequently
held unconstitutional.”).
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Kennedy’s and Stilp’s repetition of the Consumer Party dicta did not elevate that dicta into
precedent. See Commonwealth v. Perry, 798 A.2d 697, 715 (Pa. 2002) (Castille, J.,
concurring) (“Dicta is not converted into binding constitutional precedent through
repetition.”).
Stilp alternatively argues that even if Consumer Party, Kennedy, and Stilp are
deemed to be binding precedent, they must be overruled because they are incorrect to the
extent they hold that mid-term provisions for legislative unvouchered expenses are
constitutional. See Stilp’s Brief at 22 (citing Mayle v. Pa. Dept. of Highways, 388 A.2d 709,
720 (Pa. 1978) (“[T]he doctrine of stare decisis is not a vehicle for perpetuating error, but
rather a legal concept which responds to the demands of justice and, thus, permits the
orderly growth processes of the law to flourish. …”)). Lastly, Stilp maintains that this Court
must specifically direct the General Assembly never to include a legislative unvouchered
expense provision in future pay raise legislation.
Treasurer Casey again aligns himself with Stilp on this issue. Specifically, he agrees
with Stilp that Act 44’s unvouchered expense provision violates Article II, Section 8 of the
Pennsylvania Constitution because it is a mid-term salary increase; that Consumer Party
must be overruled; and that the legislators who took the unvouchered expenses prior to Act
72’s repeal of Act 44 must repay the payments.
In its amicus curiae brief, Potts emphasizes, as Stilp does, that the unvouchered
expense allowances are not paid for actual business expenses incurred by legislators, and
that the allowances in this legislation equaled the exact amount of salary increases that
were to take effect upon the next election for each individual legislator. Therefore,
according to Potts, the unvouchered expense allowances in Act 44 are salary merely
disguised under a different name. Potts additionally invites this Court to overrule
Consumer Party and clarify that unvouchered expenses are unconstitutional and an
improper circumvention of Article II, Section 8 of the Pennsylvania Constitution.
[J-36A-C-2006] - 67
In response, the remaining appellees -- which include Attorney General Corbett on
behalf of the Commonwealth, Senator Jubelirer, and Speaker Perzel -- maintain that the
Article II, Section 8 challenge must be rejected under both Consumer Party and the
doctrine of stare decisis. Specifically, appellees argue that mid-term provisions for
legislative unvouchered expense allowances do not constitute salary or mileage under our
holding in Consumer Party, and thus are outside the scope of Article II, Section 8 of the
Pennsylvania Constitution. Appellees also argue that Stilp has failed to satisfy the
necessary burden for this Court to overrule Consumer Party. Senator Jubelirer and
Speaker Perzel then offer additional, substantive reasons in support of these general
arguments.
Senator Jubelirer initially acknowledges that there are some differences between the
unvouchered expenses upheld in Consumer Party and those provided in Act 44, most
notably that the unvouchered expense allowances upheld in Consumer Party were not in
an amount equal to the future salary increase. But, the Senator maintains that the
differences are immaterial and, thus, the doctrine of stare decisis requires this Court to
uphold Act 44’s unvouchered expense provision and reaffirm Consumer Party. The
Senator asserts that the General Assembly relies upon this Court’s precedent in enacting
legislation, and that the overruling of Consumer Party “would cast uncertainty and
confusion regarding a fundamentally important legislative function.” Senator Jubelirer’s
Brief at 31.
For his part, Speaker Perzel maintains that Act 44’s unvouchered expense provision
complies with Consumer Party, and that the General Assembly acted in good faith reliance
on this precedent in enacting the provision. The Speaker acknowledges that this Court has
appeared to be “uneasy” with Consumer Party, pointing to: the recent decision in PAGE
which overruled the legal standard announced in Consumer Party for evaluating Article III,
Section 1 original purpose challenges; and the phrasing of the portion of our Order of
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December 22, 2005 concerning the unvouchered expense issue. Given this perceived
“uneasiness” with Consumer Party, the Speaker maintains, “the Legislature, as a practical
concern, requires guidance and clarification from the Court for any future legislation …
[and] a dependable ruling on the requirements of Article II, Section 8, and most directly
concerning the continued constitutionality of those unvouchered expense allocations in the
amount of the future pay raise.” Speaker Perzel’s Brief at 26.
This Court reviews constitutional challenges to a statute under the presumption that
the General Assembly does not intend to violate the Constitution; accordingly, a statute
enjoys a strong presumption of constitutionality. See 1 Pa.C.S. § 1922(3); PAGE, 877 A.2d
at 393. Any party challenging the constitutionality of a statute bears the heavy burden of
proving that the act clearly, palpably, and plainly violates the Constitution, and all doubts
are to be resolved in favor of a finding of constitutionality. PAGE, 877 A.2d at 393. In
construing constitutional provisions, “the fundamental rule of construction which guides [the
Court] is that the Constitution’s language controls and must be interpreted in its popular
sense, as understood by the people when they voted on its adoption.” Ieropoli, 842 A.2d at
925.
All parties involved agree that Article II, Section 8 of the Pennsylvania Constitution
plainly and unequivocally prohibits legislators from receiving mid-term salary increases.
The issue then is whether the mid-term legislative unvouchered expense allowance
authorized by Act 44 is in fact a salary increase, and therefore is repugnant to the
Constitution. Our analysis necessarily begins with Consumer Party.
Consumer Party involved Act 39 of 1983 (“the Public Official Compensation Law”), a
comprehensive law that, similar to Act 44, addressed the compensation of officials in all
three branches of government. Section 4 of the Act raised the salaries of members of the
General Assembly by $10,000, to a total of $35,000 per annum, made effective following
the next election. Section 4 also authorized $7,500 in vouchered expenses for “clerical
[J-36A-C-2006] - 69
assistance and other expenses incurred during [a legislator’s] term in connection with the
duties of his office.” Act 39, § 4(a); see Consumer Party, 507 A.2d at 327 n.3. Section 5 of
Act 39 also provided for an unvouchered expense allowance in a total amount of $5,000,
but payable mid-term, in monthly allotments over a one-year time period from December 1,
1983 until November 30, 1984. See Act 39, § 5(a); Consumer Party, 507 A.2d at 327 n.4.
In addition, Officers of both the Senate and the House of Representatives were to receive
additional amounts of unvouchered expenses for the same one-year time period. Act 39, §
5(b), (c); Consumer Party, 507 A.2d at 327 n.4.
The citizen-taxpayer appellants in Consumer Party appealed from a Commonwealth
Court order which, on summary judgment, upheld the constitutionality of Act 39. After
reviewing and rejecting various procedural challenges raised under Article III, this Court
turned to the appellants’ challenge to Act 39’s legislative unvouchered expense provision.
The appellants had argued in the Commonwealth Court only that the provision violated
Article III, Section 27 of the Pennsylvania Constitution, entitled “Changes in Term of Office
or Salary Prohibited,” and which provides that: “No law shall extend the term of any public
officer, or increase or diminish his salary or emoluments, after his election or appointment.”
We held that this challenge was meritless because the more specific provision in Article II,
Section 8 exclusively covers mid-term compensation increases for the Legislature.
Consumer Party, 507 A.2d at 335-36 (citing Snyder v. Barber, 106 A.2d 410, 411 (Pa.
1954) (Article III, Section 27 (formerly numbered “13”) “does not apply to the members of
the Legislature since their compensation is dealt with in a separate part of the Constitution,
namely, Art. II, sec. 8.”)).
The Consumer Party Court then went on to note that, in their brief on appeal, the
appellants attempted to raise a new claim alleging that the unvouchered expense provision
violated Article II, Section 8. We determined that this distinct issue was “not properly before
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the Court” because it was never raised in the complaint below nor did the appellants seek
to amend their complaint to raise the claim. Id. at 336.
Notwithstanding this waiver holding, the Consumer Party Court went on to address
and reject the Article II, Section 8 challenge on the merits, without stating if the discussion
was intended as dictum, an alternative holding, or merely to provide guidance for future
cases. The Court noted that Article II, Section 8 prohibits mid-term increases in legislative
“salary” or “mileage,” but is silent about unvouchered expense allowances. The Court
understood the (waived) challenge before it to be that “the increased expense allowance
during the legislative term provided for in the Compensation Act is additional ‘salary.’”
Engaging in a plain meaning analysis, the Court found that this argument ignored the clear
differences in the terms “salary” and “unvouchered expense allowances,” as the former
entailed “compensation for services performed,” while the latter covered “an amount
furnished to pay for expenses incurred in the performance of those services.” The Court
also noted that expense allowances for legislators had been provided by statute since
1956, and that there was also statutory precedent for mid-term augmentation of such
allowances. Id. at 336-37.
The Court then examined the nature of expense allowances. The Court highlighted
the disadvantages of a system where an employee is required to submit vouchers for all
expenses, including: the concomitant bookkeeping burden a vouchered system requires for
the employer, the time-lag between the employee’s expenditure and reimbursement by the
employer, and the time expended by the employee in maintaining accurate expense
records. The Court further noted that an unvouchered system, providing for a fixed
allowance, avoids these burdens: “[t]he time and expense involved in bookkeeping is
eliminated and the employee is able to devote his full attention to his duties.” Id. The Court
also recognized that an employee’s unvouchered expenditures might be more or less than
the fixed allowance, but concluded that such variations were not problematic: “As long as
[J-36A-C-2006] - 71
the expense allowance fixed is reasonably related to actual expenses, the lack of
mathematical precision inherent in such a system does not present a problem.” Id. at 337.
Finally, the Consumer Party Court considered the appellants’ argument that the
unvouchered expense allowance was “unreasonable” and “in reality a veiled salary
increase” which violated Article II, Section 8. The Court did not reject this claim out of
hand, but did so for the following, specific reasons:
Appellants offer no basis for the conclusion that the expense allowance is not
needed and will not be used to pay for the legitimate expenses of the
members of the General Assembly. As we previously outlined, the use of
expense allowances has long been a tradition in the legislature. Instead
appellants argue that those legislators should bear the burden of proving that
the expense allowance is reasonable. We disagree with that novel assertion.
As we stated above, a party challenging the constitutionality of an act
of the General Assembly bears a heavy burden of proof, and legislation will
not be declared unconstitutional unless it clearly, palpably and plainly violates
the Constitution. Here appellants utterly failed to make any showing that the
expense allowance is a sham. This additional argument is therefore
meritless.
Id. at 337-38 (citations and footnote omitted).
In the twenty years since Consumer Party was decided, the Commonwealth Court
has twice been called upon to assess Article II, Section 8 challenges to pieces of legislation
involving official compensation, legislation that also authorized legislative unvouchered
expenses. In both instances, the lower court looked to Consumer Party for guidance and
ultimately rejected the constitutional challenge. It is notable that, in both cases, further
review was not sought before this Court. See Stilp, 699 A.2d 1353; Kennedy, 546 A.2d
733.
In Kennedy, the challenged legislation, among other subjects, increased the salaries
of legislators by $12,000, to a total of $47,000 per annum, effective after the next election.
The legislation also provided for a mid-term unvouchered expense allowance to be paid
[J-36A-C-2006] - 72
monthly in the interim, and in an amount equal to the future salary increase (i.e., $1,000 per
month). Applying Consumer Party, the en banc panel held that the unvouchered expenses
were not a “salary hike” and thus did not violate Article II, Section 8. In so holding, the
Kennedy court noted that Consumer Party had: emphasized the distinction between
“salary” and “expenses;” taught that, as long as the expense allowance is reasonably
related to actual expenses, mathematical precision is unnecessary; and placed the burden
of proving unreasonableness upon the challenger. The en banc panel then summarily
rejected the claim as follows:
In this case, Petitioners' complaint does not plead that the $1,000.00
expense increase is unreasonable and that a lesser amount would be
reasonable. Instead, it attacks, on constitutional grounds, the increase in its
entirety as one which is, in reality, a salary hike. We conclude that the
above-quoted language [from Consumer Party] is controlling upon the issue
presented here and, thus, fatal to Petitioners' theory of a constitutional
violation of Article II, section 8.
Kennedy, 546 A.2d at 737.
The Commonwealth Court also rejected a similar constitutional challenge in Stilp,
699 A.2d 1353. The public official compensation legislation at issue in that case (Act 51 of
1995) again provided for a mid-term legislative unvouchered expense allowance, to be paid
monthly, and in an amount equal to the legislative salary increase made effective following
the next election.34 The legislation further provided to Senators who were elected in 1994
continued unvouchered expenses from December 1, 1996 until November 30, 1998 in an
amount equal to their salary increase. Citing Consumer Party and Kennedy, the panel
rejected Stilp’s argument that the increase in expense allowances should be considered a
34 Under the unvouchered expense provision, rank-and-file legislators received $733 per
month.
[J-36A-C-2006] - 73
salary increase on grounds that the increase was calculated under the same formula used
for the legislators’ cost-of-living adjustments [“COLAs”]:
Merely because the expense allowances and COLAs are determined by
using the same formula does not automatically transform the expense
allowances into additional salary. Moreover, the COLAs and the expense
allowances are calculated using the Consumer Price Index for Urban
Consumers. Section 4 of the Law. In our view, it is not unreasonable to
augment the Legislators' expense allowance and salary in proportion to
actual increases in the cost of living measured by the consumer price index.
Id. at 1357. Finally, the panel also rejected Stilp’s argument that the unvouchered expense
allowances were not reasonably related to actual expenses incurred by legislators:
A fair reading of Consumer Party does support the view that an unreasonable
expense allowance could be unconstitutional. The Consumer Party Court
indicated that a plaintiff asserting that an expense allowance is unreasonable
has a heavy burden to prove that the challenged expense allowance is, in
reality, not needed and not intended to pay for the legitimate expenses of
Legislators, and that it is a sham designed to hide a salary increase. Stilp,
however, has not averred any facts in his complaint that could support a
cause of action on the theory that the Act 51 expense allowance is
unreasonable.
Id. (footnote omitted).
Act 44 is similar to the legislation at issue in Consumer Party, Kennedy and Stilp in
that the challenged provision provides for mid-term payments for unvouchered expenses
(not salary or mileage); the unvouchered expense provision is contained in a bill
establishing an increase in legislative salaries to take effect after the next election; and the
unvouchered expense allowance expires once the legislative salary increase takes effect.
There are notable distinctions, however. First, Act 44’s unvouchered expense provision
does not state an absolute dollar amount of expenses to be afforded legislators. Instead,
the amount of the allowance is determined by a formula that refers precisely to the future
increase in legislative salary, i.e., the dollar difference between pre-Act 44 legislative
[J-36A-C-2006] - 74
salaries and the new salaries that would take effect following the next relevant legislative
election. Second, with respect to legislative leaders, the corresponding raw dollar amount
of the unvouchered expense allowance was substantially more than was at issue in any of
the previous cases. Under the formula adopted by Act 44, the future salary of rank-and-file
members of the General Assembly would rise over $11,000, from just under $70,000 per
year to just over $81,000 per year. Thus, the mid-term “unvouchered expenses” authorized
by the Act are in excess of $11,000 for each rank-and-file legislator. The amount of midterm
unvouchered expenses made available to legislative leaders and committee chairs,
however, was much more dramatic. For example, Act 44 adopted a formula that raised the
salaries of the Speaker of the House and the Senate President pro tempore by well over
$30,000 per year, and made that very same amount immediately available to those
legislators in the guise of mid-term unvouchered expenses.
This Court asked the parties to brief the question of whether we should reconsider or
overrule Consumer Party and Stilp, Treasurer Casey, and Stilp’s amici affirmatively request
that we do so. The doctrine of stare decisis maintains that for purposes of certainty and
stability in the law, “a conclusion reached in one case should be applied to those which
follow, if the facts are substantially the same, even though the parties may be different.”
Burke v. Pittsburgh Limestone Corp., 100 A.2d 595, 598 (Pa. 1953). While stare decisis
serves invaluable and salutary principles, it is not an inexorable command to be followed
blindly when such adherence leads to perpetuating error. See Mayle, 388 A.2d at 720
(“[T]he doctrine of stare decisis is not a vehicle for perpetuating error, but rather a legal
concept which responds to the demands of justice and, thus, permits the orderly growth
processes of the law to flourish.”). On the other hand, we recognize the importance of
reliance on settled jurisprudence when asked to overturn precedent, and thus there is much
force in the legislative leaders’ argument that they rely on this Court’s interpretation of the
[J-36A-C-2006] - 75
law and precedent when crafting legislation, and that such reliance should not be undercut
except for good reason.
Preliminarily, we should note that, although it is not clear whether the analysis
articulated and applied in discussing the Article II, Section 8 challenge in Consumer Party
was intended as dicta, general guidance, or an alternative holding, we would not seek to
distinguish or narrow it on grounds that it lacked precedential value. The Court saw fit to
discuss the constitutional issue, without objection from any participating Justice; the
discussion was offered as an explanation of why “[n]o purpose would be served” in
permitting amendment of the complaint to add the waived argument; the issue thus
discussed was an important one obviously capable of recurrence; and it has been relied
upon. Thus, we shall consider the case square-on.
Consumer Party assumed an appropriate deference to the judgment of the General
Assembly with respect to mid-term increases in expense allowances, in part because of the
salutary presumption of constitutionality, and in part because the Court perceived the
legitimate role that unvouchered expenses play where they bear a reasonable relationship
to actual expenses. Indeed, the Court addressed at length the putative advantages in not
requiring a dollar-for-dollar accounting of expenses. The Court’s analysis, however, did not
purport to approve of any and all systems covering mid-term unvouchered expenses. To
the contrary, the Court made clear that such expenses must bear a “reasonable
relationship” to actual expenses. We see no constitutional infirmity in this general standard
as adopted in Consumer Party. Expenses are different from salary. There is, of course,
much to be said for transparency in government, particularly when it comes to
expenditures, and specific accounting procedures promote that transparency even if such a
system requires an expenditure of time and money for accounting purposes. But, absent
constitutional infirmity, it is not this Court’s role to dictate to a coordinate, coequal branch of
government how best to approach the task of accounting for legitimate expenses. Thus,
[J-36A-C-2006] - 76
we continue to believe that, as a general matter, unvouchered expense allowances are not
per se unconstitutional. Accordingly, we reaffirm the core reasonable relationship standard
which was adopted in Consumer Party.35
Having said this, however, we have no difficulty in finding that the unvouchered
expense allowance provided for in Act 44 is constitutionally infirm as it does not bear a
reasonable relationship to the actual expenses incurred by individual legislators. To better
frame the inquiry, we begin by emphasizing what the Court in Consumer Party did not say.
In point of fact, the amount of the unvouchered expense allowance at issue in Consumer
35 Our reaffirmation of Consumer Party’s recognition that mid-term unvouchered expenses
are not per se unconstitutional, and the reasonable relationship standard as the
constitutional measure of such legislation, is not an endorsement of the Court’s application
of the test in that case. Mr. Justice Saylor’s Concurring and Dissenting Opinion -- which
emphasizes the sheer amount of the unvouchered allocation at issue in Consumer Party
and the Court’s lack of concern with whether the allotments were reported as income or
expenses on federal tax returns -- ably outlines the strong argument that could be made
that the Consumer Party Court’s application of the test it announced was excessively
deferential, perhaps even implausible under the circumstances. We could add, to the
points offered by Justice Saylor, the circumstance that the unvouchered expenses expired
once the legislative salary increases took effect. As we explain below, however, the
circumstances in this case are not at all the same as in Consumer Party, and thus, to
discharge our duty in the case sub judice it is not necessary to speculate as to whether we
would approve the mid-term unvouchered expense legislation at issue in Consumer Party,
if faced with it again.
Perhaps more importantly, it is also worth noting in any digression into whether
Consumer Party was rightly decided that the propriety of a former decision is difficult to
measure in absolute terms, and the effects of hindsight must be considered. As a matter of
law, the Consumer Party Court rejected only the constitutional challenge and argument it
identified as having been presented to it; no case purports to reject all possible arguments.
In assessing the persuasiveness of a prior decision, a later court necessarily is confined to
the arguments and discussion which are identified in the decision. Thus, the excessive
deference now apparent in Consumer Party may well reflect the narrowness or insufficiency
of the argumentation forwarded in the case, or it could represent the Court’s failure to
address or appreciate all arguments forwarded.
[J-36A-C-2006] - 77
Party was not the same as the future legislative salary increase provided in that legislation
(the salary increase was $10,000, while the unvouchered expense allowance was half that
amount). More importantly, this Court never held, stated, or implied that any particular
amount authorized for mid-term unvouchered expenses was constitutionally valid under the
reasonable relationship standard and Article II, Section 8 of the Pennsylvania Constitution.
Equally as important, and contrary to the present argument of the Speaker, this Court
certainly did not hold, state or imply that mid-term unvouchered expense allowances for the
Legislature comply with Article II, Section 8 so long as they are in the same amount as a
future salary increase included in the same legislation. Thus, when the Speaker asks for a
“dependable” Article II, Section 8 ruling on “the continued constitutionality of those
unvouchered expense allocations in the amount of the future pay raise,” Speaker
Perzel’s Brief at 26 (emphasis added), he has misperceived the inquiry. Consumer Party
never said or suggested that such a system was constitutionally valid.
Senator Jubelirer, in his summary of Consumer Party, notes the reasonable
relationship test stated therein, but he never argues that such a relationship exists with
respect to Act 44. Speaker Perzel, on the other hand, never acknowledges this standard
set forth in Consumer Party, instead focusing upon the facts alone, and suggesting
incorrectly that the case thereby stands for the proposition that mid-term unvouchered
expenses are constitutional under Article II, Section 8 so long as they are in the same
amount as the future legislative salary increase provided in the legislation. Because the
legislative leaders overlook or misconstrue the actual holding of Consumer Party, they
provide no relevant rebuttal to Stilp’s claim.36
36 It appears that in both Kennedy and Stilp, unlike in Consumer Party, the unvouchered
expenses authorized were in the same amount as the future legislative salary increase.
This Court, however, was not asked to review either case and those intermediate appellate
decisions do not bind us. In any event, neither Kennedy nor Stilp held that dollar-for-dollar
(continued…)
[J-36A-C-2006] - 78
This Court recognizes that, as the challenger of presumptively constitutional
legislation, Stilp properly bears the burden of proof here. Consumer Party, 507 A.2d at
337. However, it is notable that the legislative parties do not dispute his claim that the
unvouchered expenses authorized by Act 44 are not reasonably related to the actual, and
otherwise-unreimbursed, expenses incurred by legislators in the discharge of their public
duties. Moreover, if the unvouchered expense allowance could plausibly be explained as
intended to cover actual expenses, rather than to serve as additional salary, we have no
doubt that this proposition would be an easy matter for the legislative parties to
demonstrate. And, as the parties uniquely in a position to provide such proof, the failure to
so argue, or to forward such a proffer, is significant notwithstanding Stilp’s ultimate burden.
Also, with respect to Stilp’s burden of proof, we are presented with arguments that were not
forwarded or discussed in Consumer Party, including Stilp’s focus on the fact that the
staggered timing of the expiration of the unvouchered expenses prove they serve as
additional salary. Stilp also properly relies on the fact, which was not available to the
challengers in Consumer Party, of intervening legislation, such as was at issue in Kennedy
and Stilp, which tied the amount of mid-term provisions for unvouchered expenses
precisely to the amount provided as a future increase in legislative compensation, and
provided that the unvouchered expenses would expire once the new salaries took effect.
The practice has become so fixed, indeed, that the Speaker, in this case, has misread
Consumer Party itself as approving any amount of mid-term unvouchered expense
(…continued)
equivalence per se established a reasonable relationship between the unvouchered
expense allowance and actual expenses.
[J-36A-C-2006] - 79
allowance so long as the amount is the same as the future increase in salary, even though
the case said no such thing, and the facts could not have supported such a holding.37
In any event, any claim of a congruence between actual unreimbursed expenses
incurred by legislators and the unvouchered allowances provided under Act 44 to defray
those expenses would challenge belief, and particularly with respect to the unvouchered
expense allowances made available to legislative leaders. The $11,000 provided the rankand-
file was on top of, and well in excess of, the $7,500 already provided for vouchered
expenses, and indeed represented approximately 16% of their then-authorized salaries.
The amount of unvouchered expenses provided legislative leaders (the Speaker and
Senate President pro tempore, and the majority and minority leaders), meanwhile, was well
in excess of $30,000 (three times the unvouchered expenses provided to the rank-and-file),
and represented over 30% of their existing salaries.
In light of Stilp’s unrebutted argument, appellees’ silence on Consumer Party’s
reasonable relationship test, the reference to the new salary formula to compute the midterm
unvouchered expense allowance, the dollar-for-dollar congruence between the
unvouchered expense allowance and the new salary formula, the fact that the expense
allotment expires once the new salary takes effect, and the sheer amount of the authorized
allowance, we hold that Stilp has carried his burden of proving that the legislative
unvouchered expense allowance provided in Act 44, § 2 (amending 46 Pa.C.S. § 1107), in
fact represented a mid-term increase in legislative salary which clearly, palpably, and
plainly violated the proscription in Article II, Section 8 of the Pennsylvania Constitution.
37 We should note that we obviously disagree, respectfully, with Mr. Justice Saylor’s
characterization of the legislative allotments at issue in Kennedy and Stilp as taking
Consumer Party to its “logical extreme.” As we have explained in text, the position of the
legislative leaders respecting what Consumer Party approved is premised upon a
misreading of the case.
[J-36A-C-2006] - 80
Accordingly, we will grant the relief requested by Stilp, in part, and declare Section 2 of Act
44 amending 46 Pa.C.S. § 1107 unconstitutional.
F. Nonseverability Provision
- 1 -
The final interpretive issue, arising by virtue of our finding above that the
unvouchered expense allowance in Act 44 is unconstitutional, is the legal effect of the
nonseverability provision included in the Act. That the Act contains a nonseverability
provision is remarkable in and of itself, because the general rule set forth in Section 1925
(“Constitutional construction of statutes”) of the Statutory Construction Act, 1 Pa.C.S. §
1501 et seq., establishes a presumption of severability:
The provisions of every statute shall be severable. If any provision of any
statute or the application thereof to any person or circumstance is held
invalid, the remainder of the statute, and the application of such provision to
other persons or circumstances, shall not be affected thereby, unless the
court finds that the valid provisions of the statute are so essentially and
inseparably connected with, and so depend upon, the void provision or
application, that it cannot be presumed the General Assembly would have
enacted the remaining valid provisions without the void one; or unless the
court finds that the remaining valid provisions, standing alone, are incomplete
and are incapable of being executed in accordance with the legislative intent.
1 Pa.C.S. § 1925. This Court has deemed the presumption in Section 1925 so
fundamental to our task, when confronted with a finding that a provision of a statute is
invalid, that we have invoked Section 1925 even where the parties failed to argue
severability. See, e.g., Mockaitis, 834 A.2d at 502. In addition to applying to “every”
statute and employing mandatory terms, Section 1925 is notable because it is not merely
boilerplate. Thus, Section 1925 does not mandate severance in all instances, but only in
those circumstances where a statute can stand alone absent the invalid provision. Section
1925 sets forth a specific, cogent standard, one which both emphasizes the logical and
[J-36A-C-2006] - 81
essential interrelationship of the void and valid provisions, and also recognizes the
essential role of the Judiciary in undertaking the required analysis.
Though now embodied in a legislative command, the principle of severability, and
the standard by which severability is measured, has its roots in the common law. For
example, in Rothermel v. Meyerle, 20 A. 583 (Pa. 1890), this Court stated the following
standard:
A statute may be void only so far as its provisions are repugnant to the
constitution. One provision may be void, and this will not affect other
provisions of the statute. If the part which is unconstitutional in its operation,
is independent of, and readily separable from, that which is constitutional, so
that the latter may stand by itself, as the reasonable and proper expression of
the legislative rule, it may be sustained as such; but, if the part which is void
is vital to the whole, or the other provisions are so dependent upon it, and so
connected with it, that it may be presumed the legislature would not have
passed one without the other, the whole statute is void.
Id. at 587-88. The standard now contained in Section 1925 merely codified this settled
decisional law.
The practice of severing and striking only the unconstitutional provision of a larger
legislative enactment, in instances where the legislation is otherwise self-sustaining and
valid, has its origins in principles of jurisprudential restraint. See generally John Copeland
Nagle, Severability, 72 N.C. L. REV. 203, 212-18 (1993); accord Fred Kameny, Are
Inseverability Clauses Constitutional?, 68 ALB. L. REV. 997, 1002 (2005). The development
of the doctrine has been described as follows:
The Champlin[38] test has its origins in Chief Justice Lemuel Shaw's
1854 opinion for the Supreme Judicial Court of Massachusetts in Warren v.
38 Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559,
564-65 (1932), overruled by Phillips Petroleum Co. v. Okla., 340 U.S. 190, 71 S.Ct. 221
(1950). Under Champlin, the severability of a statute depends upon two factors: legislative
intent, and whether the statute can function without the offending provision. This Court has
(continued…)
[J-36A-C-2006] - 82
Mayor & Aldermen of Charlestown, [68 Mass. 84, 2 Gray 84 (1854),] the first
case holding that an unconstitutional statutory provision rendered an entire
statute invalid. Prior to Warren, the severability of statutory provisions was
usually assumed. In the earliest cases questioning the constitutionality of a
federal statute, the United States Supreme Court gave no indication that the
unconstitutionality of one provision--or its application--would render an entire
statute invalid. In Marbury v. Madison, [5 U.S. 137, 1 Cranch 137 (1803),] for
example, the unconstitutionality of section 13 of the Judiciary Act of 1789 did
not render the entire Act invalid. As Chief Justice Marshall later wrote, "If any
part of the act be unconstitutional, the provisions of that part may be
disregarded while full effect will be given to such as are not repugnant to the
constitution of the United States . . . . "[39] As a result of this lack of guidance,
some courts invalidated statutes "so far as" they were unconstitutional, while
a few courts suggested that severability depended on the ability of the
remaining provisions to function absent the unconstitutional provision.
Then came Warren. … Chief Justice Shaw agreed with those courts
that had found that a statute could be constitutional in part and
unconstitutional in part. But he quickly added:
[T]his must be taken with this limitation, that the parts, so held
respectively constitutional and unconstitutional, must be wholly
independent of each other. But if they are so mutually
connected with and dependent on each other, as conditions,
considerations or compensations for each other, as to warrant
a belief that the legislature intended them as a whole, and that,
if all could not be carried into effect, the legislature would not
pass the residue independently, and some parts are
unconstitutional, all the provisions which are thus dependent,
conditional or connected, must fall with them.
(…continued)
employed the same standard. See, e.g., Saulsbury v. Bethlehem Steel Co., 196 A.2d 664,
667 (Pa. 1964). Cf. Rutenberg v. City of Philadelphia, 196 A. 73, 79 (Pa. 1938) (“The test
of severability may be stated in simple terms as follows: After the invalid portion of the act
has been stricken out, whether that which remains is self-sustaining and is capable of
separate enforcement without regard to that portion of the statute which has been cast
aside. If this be true the statute should be sustained to the extent of that which remains.”).
39 Bank of Hamilton v. Lessee of Dudley, 27 U.S. 492, 526, 2 Pet. 492, 526 (1829).
[J-36A-C-2006] - 83
Nagle, Severability, 72 N.C. L. REV. at 212-13 (citing Warren, 68 Mass. 84, 2 Gray at 99)
(footnotes omitted).
No doubt because the severance principle has its roots in a jurisprudential doctrine
(and the standard itself reflects the experience of the common law), the courts have not
treated legislative declarations that a statute is severable, or nonseverable, as “inexorable
commands,” but rather have viewed such statements as providing a rule of construction.
Nor is the fact that the ordinances contain a severability clause
controlling. As stated by Mr. Justice Brandeis in Dorchy v. The State of
Kansas, 264 U.S. 286, 68 L.Ed. 686, 44 S.Ct. 323 (1924), the clause
“provides a rule of construction * * * in determining [legislative] intent. But it
is an aid merely; not an inexorable command.” As ruled by this Court in
Pennsylvania R. R. Co. v. Schwartz, 391 Pa. 619, 139 A.2d 525 (1958), while
a severability clause must be given due weight, it is not to be accepted
judicially as conclusive if the unity of the general legislative scheme is
completely destroyed by a severance of its provisions.
Saulsbury v. Bethlehem Steel Co., 196 A.2d 664, 667 (Pa. 1964) (additional U.S. Supreme
Court citations omitted). See also Pennsylvania Fed'n of Teachers v. School Dist. of
Philadelphia, 484 A.2d 751, 754 (Pa. 1984) (holding nonseverability provision inapplicable
where Act is unconstitutional only as applied to persons who were members of retirement
system at time of the enactment, but constitutional as applied to those who became
members of the retirement system subsequent to the effective date of the Act); accord Louk
v. Cormier, 622 S.E.2d 788, 803 (W. Va. 2005) (“[W]e now hold that a non-severability
provision contained in a legislative enactment is construed as merely a presumption that
the Legislature intended the entire enactment to be invalid if one of the statutes in the
legislation is found unconstitutional. When a non-severability provision is appended to a
legislative enactment and this Court invalidates a statute contained in the enactment, we
will apply severability principles of statutory construction to determine whether the nonseverability
provision will be given full force and effect.”); Stiens v. Fire and Police Pension
Assoc., 684 P.2d 180, 184-85 (Colo. 1984) (nonseverability clause, like severability clause
[J-36A-C-2006] - 84
“is not conclusive as to legislative intent” but “gives rise only to a presumption that, if the
unconstitutional parts of an act were eliminated, the legislature would not have been
satisfied with what remained”; ultimately holding that “the presumption of unseverability has
been overcome”); Legislative Research Commission v. Brown, 664 S.W.2d 907, 919-20
(Ky. 1984) (declining to enforce nonseverability clause because to do so would violate
separation of powers, in that it would “unconstitutionally limit[] and interfere[] with the
governor’s mandated duties”); Biszko v. RIHT Fin. Corp., 758 F.2d 769, 773 (1st Cir. 1985)
(“Although … a non-severability clause cannot ultimately bind a court, it establishes a
presumption of non-severability.").
The willingness of courts to look behind legislative provisions concerning severability
in appropriate cases apparently derives, at least in part, from a historical uneasiness with
the notion that legislatures could dictate the conclusion of what had long been a judicial
inquiry:
The first severability clauses appeared late in the nineteenth century, and
they became much more common around 1910. These clauses were a
reaction to those courts that were aggressively holding statutes
nonseverable. The earliest legislative statements that statutory provisions
should be construed as being severable were taken at face value by the
courts. But courts soon soured on express legislative statements concerning
severability. State courts and commentators refused to accept the
proposition that legislatures had authority to dictate to the courts the
appropriate decision regarding severability.
Nagle, Severability, 72 N.C. L. REV. at 222 (footnotes omitted). The severability standard
adopted in Section 1925’s presumption does not pose the historical issue Nagle describes
because it is not a boilerplate directive. Instead, Section 1925 adopts the historical judicial
standard which governed severability inquiries, and then statutorily mandates the Judiciary
to make the ultimate determination of severability.
[J-36A-C-2006] - 85
We have no doubt that the unconstitutional legislative unvouchered expense
provision is severable from the remaining, valid (although now repealed) provisions of Act
44, under the substantive standard set forth in Section 1925. In Act 44, the General
Assembly adopted a comprehensive new compensation system governing the three
branches of government, a system which employed formulas tying the compensation paid
Pennsylvania officials to that provided for corresponding federal officials, albeit in a
stepped-down fashion. Insofar as the Act adopted the new compensation system for the
legislative branch, that system could go into effect, without violating Article II, Section 8 of
the Pennsylvania Constitution, with the commencement of the next term of office for each
legislative seat. A major and new perceived benefit of this system of compensation
consisted in the fact that, by tying salary to the federal structure, the issue of raising official
compensation would be de-politicized. This new system of compensation, however, was
not “essentially and inseparably connected with” the legislative unvouchered expense
provision, much less did it “depend upon” that provision. See 1 Pa.C.S. § 1925. The
remaining valid (but repealed) provisions are easily capable of being executed in
accordance with the General Assembly’s manifest intention of providing a new and
permanent compensation structure for officials in all three branches of government. In
contrast, the legislative unvouchered expense provision had nothing to do with the new,
comprehensive compensation system. Instead, that provision sought to avoid a
constitutional limitation particular only to the legislative branch, which cannot increase its
own salary or mileage during the same legislative term in which such a law is passed.
Whatever may have been the motivation behind the unvouchered expense provision, it is
clear that the provision was not integral to the workings of the comprehensive system of
governmental compensation otherwise adopted in Act 44.
But, of course, the issue is not so simple because the General Assembly included in
Act 44 a boilerplate nonseverability provision, which reads as follows:
[J-36A-C-2006] - 86
The provisions of this act are nonseverable. If any provision of this act or its
application to any person or circumstance is held invalid, the remaining
provisions or applications of this act are void.
Act 44, § 6. This nonseverability provision is unlike the general provision ensconced in
Section 1925 in that it sets forth no standard for measuring nonseverability, but instead,
simply purports to dictate to the courts how they must decide severability. If this
nonseverability clause is not controlling, the unvouchered expense provision, as noted, can
be severed from the remaining valid provisions of Act 44. If the nonseverability clause is
controlling, however, and validly operates to dictate to the Judiciary the effect of a finding of
unconstitutionality as to any individual provision in Act 44, then Act 44 would of necessity
be invalidated in its entirety. In the latter instance, this Court would have to proceed to the
Judges’ claim that invalidation of the entirety of Act 44, and the attendant reduction of
judicial compensation that action would entail, would violate Article V, Section 16(a) of the
Pennsylvania Constitution.
- 2 -
While maintaining his primary argument that Act 44 violates the procedural
provisions of Article III of the Pennsylvania Constitution, and therefore, the severability
issue is moot, Stilp argues, in the alternative, that the nonseverability provision must be
deemed to have no valid legal effect. Stilp submits that the General Assembly obviously
included the nonseverability clause for the sole purpose of coercing the courts not to strike
Act 44’s unconstitutional legislative unvouchered expense provision: “The General
Assembly shrewdly calculated that the courts would not want to jeopardize their own raise,
but would instead look the other way … .” Stilp’s Brief at 26. Stilp argues that the General
Assembly’s attempt to influence and control judicial consideration of the constitutionality of
Act 44 and its individual provisions violates the separation of powers doctrine. Therefore,
[J-36A-C-2006] - 87
according to Stilp, if this Court were to find the unvouchered expense provision
unconstitutional but the rest of the Act valid, the provision should be severed.
Turning to the question under Article V, Section 16(a) of the Pennsylvania
Constitution, Stilp argues that if this Court were to strike down Act 44 in its entirety -- either
because of: (1) an Article III violation; or (2) striking down the unvouchered expense
provision and then giving effect to the nonseverability provision -- the prohibition on
reducing judicial compensation would not be violated. This is so, Stilp contends, because
striking the entirety of Act 44 as unconstitutional would render the Act void ab initio; and, as
a result, the increase in compensation already received by the Judiciary would be deemed
a legal nullity. In addition, Stilp argues that Article V, Section 16(a) would not be violated if
this Court struck Act 44 because the reduction in judicial salaries would be a result of an
act by this Court, and not a law passed by the General Assembly.
In his brief, Treasurer Casey does not address the validity of the nonseverability
provision. Consistently with the arguments he forwards concerning the Article III issues,
the Treasurer maintains that, because the manner of Act 44’s passage violated Article III, it
is void ab initio and the increase in judicial compensation it afforded must be deemed a
nullity. Because no increase in compensation was lawfully provided to the Judiciary, the
Treasurer argues, there is no violation of Article V, Section 16(a).40
The remaining appellees -- Attorney General Corbett on behalf of the
Commonwealth, Senator Jubelirer, and Speaker Perzel -- counter that Act 44’s
nonseverability provision controls this Court’s interpretation of the effect of a finding that
any provision in Act 44 is unconstitutional. Appellees view this Court’s role as being limited
to implementing the legislative directive. Appellees assert that the nonseverability clause
40 The Potts amicus brief echoes the arguments forwarded by Stilp and Treasurer Casey.
[J-36A-C-2006] - 88
merely reflects the General Assembly’s intention that all provisions of Act 44 should be
viewed as if they are interdependent, such that if any provision were struck, the overall
purpose of the Act in providing for a comprehensive salary structure for all three branches
of government is compromised. Appellees further contend that nonseverability provisions
are not a means by which the legislative branch attempts to influence and usurp judicial
power, and thus, such provisions do not violate the separation of powers. Each appellee,
however, offers slightly differing reasons in support of these general arguments.
Attorney General Corbett initially asserts that, although the General Assembly’s
motives for including the nonseverability provision in Act 44 may indeed be “self-serving,”
judicial deference to the provision does not violate the Pennsylvania Constitution. Thus, in
the Attorney General’s view, a finding that any provision of Act 44 is unconstitutional
requires this Court to hold that the remaining provisions of the Act are automatically void.
This holding would result in the compensation allotted to all three branches of government
returning to the levels authorized under the compensation system in effect before passage
of Act 44. The Attorney General submits that this result would not violate Article V, Section
16(a) because the Judiciary would be treated the same as the other branches of
government.
Senator Jubelirer submits that the nonseverability clause is constitutional and
enforceable as it reflects the General Assembly’s policy determination and manifest
intention that Act 44 should be considered a unified piece of legislation that must be
enforced in whole or not at all. The Senator contends that the inclusion of such a clause
represents a binding legislative policy decision and, he insists, it is a proper exercise of
legislative discretion that does not infringe upon powers entrusted to the Judiciary or the
judicial function itself: “The inclusion of a nonseverability clause in legislation does not
interfere with, restrain, coerce or diminish the judicial power or dictate the decisions the
[J-36A-C-2006] - 89
court must make.” Senator Jubelirer’s Brief at 39. Thus, in the Senator’s view, such a
provision does not violate the separation of powers.
The Senator also argues that this Court has given effect to nonseverability clauses
in prior cases. In support of this point, the Senator primarily cites to former Chief Justice
Zappala’s Opinion in Support of Affirmance (“OISA”) in Gmerek v. State Ethics
Commission, 807 A.2d 812 (Pa. 2002). The Gmerek OISA, which represented the view of
two Justices, would have found multiple provisions of the Lobbying Disclosure Act, 65
Pa.C.S. §§ 1303-1311, unconstitutional as violative of Article V, Section 10 of the
Pennsylvania Constitution, and would have given effect to the Act’s nonseverability
provision and thus struck the entire act as invalid.41 See Gmerek, 807 A.2d at 818-19
(Zappala, C.J., OISA, joined by Cappy, J.). The Senator further notes that his research
uncovered only two cases where Pennsylvania nonseverability clauses were challenged on
constitutional grounds, and in both instances the courts upheld the provision. See Brookins
v. O’Bannon, 699 F.2d 648 (3d. Cir. 1983) (nonseverability clause in legislation amending
Pennsylvania Public Welfare Code held not to violate First Amendment rights of
expression, petition, and association of Philadelphia Welfare Rights Organization or its
members); Kennedy, 546 A.2d 733 (nonseverability clause in 1987 compensation act
upheld).
Senator Jubelirer further maintains that, if this Court were to find that the legislative
unvouchered expense provision is unconstitutional, the nonseverability clause would render
Act 44 void ab initio. Echoing the other parties, the Senator argues that, in such an
instance, the increase in compensation afforded the Judiciary by operation of the Act 44
41 The nonseverability provision in the Lobbying Disclosure Act provided that, “If any
provision of this chapter or its application to any person or circumstance is held invalid on
the basis of improper regulation of the practice of law, the remaining provisions or
applications of this chapter are void.” 65 Pa.C.S. § 1311(b).
[J-36A-C-2006] - 90
formulas must be deemed void, the repeal represented by Act 72 did not diminish judicial
compensation, and thus, there has been no violation of Article V, Section 16(a).
Speaker Perzel also argues that Act 44’s nonseverability provision is constitutional
and enforceable. The Speaker notes that the General Assembly has inserted similar
provisions in scores of statutes, and has included partial nonseverability clauses in several
other statutes.42 The Speaker insists that the nonseverability provision included in Act 44
was not an attempt by the General Assembly to intrude upon the province of the Judiciary,
but merely reflected a clear legislative intention that every provision of Act 44 be viewed as
being mutually interdependent and, therefore, the Act was intended to be enforced in toto,
or not at all. In addition, the Speaker suggests that the General Assembly inserted a
nonseverability provision in Act 44 “as a clear expression that the complete review and
overhaul of public officials’ compensation in Pennsylvania was not intended to be done in
any piecemeal fashion, but as an interrelated whole.” Speaker Perzel’s Brief at 33.
In his amicus curiae brief, Judge Herron submits that nonseverability clauses
generally are constitutional, but contends that, if this Court were to strike down a provision
of Act 44 as unlawful, enforcement of the nonseverability provision to invalidate the judicial
compensation provisions would be unconstitutional under Article V, Section 16(a). In
arguing the unconstitutionality of the nonseverability provision, Judge Herron contends that
the General Assembly has no more power to repeal Act 44’s formula which increased
judicial compensation through an indirect, contingent method -- inclusion of a
nonseverability provision -- than to directly reduce judicial compensation, as it attempted to
do in regard to Act 72. Moreover, Judge Herron rejects Stilp’s suggestion that Article V,
42 Partial nonseverability clauses purport to permit severability of some provisions of a
statute, but require invalidation of the entire statute if other specific provisions are struck.
As an example of a partial nonseverability provision, see the Gaming Act. See 4 Pa.C.S. §
1902; PAGE, 877 A.2d at 390 n.3.
[J-36A-C-2006] - 91
Section 16(a), would not apply to a court’s reduction of compensation pursuant to the
enforcement of a nonseverability provision, contending that the constitutional prohibition
against diminishing judicial compensation is not limited to any particular branch of
government. Therefore, Judge Herron asserts, the nonseverability clause would be
unconstitutional as applied to the formula for determining judicial compensation in Act 44,
although it may be constitutionally enforced with respect to those provisions in Act 44 which
increased compensation for future holders of legislative and executive offices. Such a
distinction is proper, Judge Herron argues, because the Pennsylvania Constitution does not
preclude the General Assembly from repealing compensation provisions respecting those
branches of government.43
- 3 -
The issue of the enforceability of the nonseverability provision is not a question of
legislative intent; the provision itself makes clear the legislative desire that no court
invalidate a single provision of the Act without invalidating the whole. The question is
whether and when the General Assembly may dictate the effect of a judicial finding that a
provision in an act is “invalid.” There is no controlling authority on this point. The Gmerek
OISA, cited by both legislative appellees, was not a majority opinion and, in any event,
merely would have applied the nonseverability provision without inquiring into its legitimacy.
See Gmerek, 807 A.2d at 819 (“Given the explicit dictates of Section 1311(b) of the Act
[regarding nonseverability], the entire Act must be declared invalid.”). Likewise, although
this Court in Pennsylvania Fed'n of Teachers, supra, declined to enforce a nonseverability
provision, we did not discuss whether or when such provisions should be deemed binding.
Moreover, the only Pennsylvania state appellate decision this Court has found which
43 Both the Brown appellants, in their amici brief, and the amicus brief filed by Thomas,
Thomas and Hafer forward similar arguments to those offered by Judge Herron.
[J-36A-C-2006] - 92
discusses a constitutional challenge to a nonseverability clause is Kennedy, supra, and that
case is unhelpful to the present inquiry.44
Kennedy involved comprehensive public official compensation legislation which was
similar to Act 44 in that it increased the salaries of legislators, the Judiciary, and highranking
executive officials, and contained a nonseverability provision worded identically to
the nonseverability provision later found in Act 44. See The Act of July 3, 1987, P.L. 193,
No. 28. The pro se appellants in Kennedy, a member of the Pennsylvania House and two
private citizens, raised several claims, including a multi-pronged challenge to the
nonseverability clause. The appellants challenged the provision on grounds that it: gave
the Judiciary an interest in the statute because it linked an increase in judicial
compensation to unvouchered expense allowances; effectively denied the appellants their
right to legal representation because no attorney would likely represent a party challenging
an act that included a raise in judicial compensation for fear of alienating the Judiciary;
violated the spirit of Article III, Section 27 of the Pennsylvania Constitution; and was
contrary to public policy, which presumes severability. The appellants did not explicitly
claim, however, that the provision violated the separation of powers.
The Commonwealth Court en banc panel in Kennedy first held that the appellants
were not denied access to the courts because they had in fact received judicial
consideration of their claims.45 The en banc panel then dismissed the appellants’ public
policy argument as unripe, noting that nonseverability was an issue only if another
44 The Third Circuit’s decision in Brookins is also unhelpful as the constitutional challenge
there sounded in the First Amendment, and not the separation of powers. In addition, of
course, decisions of the lower Federal courts do not bind this Court, and particularly where
the question is one of state law.
45 The en banc panel did not address the appellants’ claim that the provision operated to
deny their right to legal representation.
[J-36A-C-2006] - 93
provision of the act was found to be unconstitutional, and that condition precedent was not
satisfied because the en banc panel upheld the unvouchered expense provision which had
been challenged. Finally, the en banc panel found the Article III, Section 27 challenge
moot. The Kennedy court did not address the appellants’ first argument -- i.e., that the
nonseverability clause improperly tied the increase in judicial compensation to the
legislative unvouchered expense provision -- the claim that is most like the separation of
powers issue before the Court in the case sub judice. Kennedy, 546 A.2d at 738-39.
By definition, a legislative provision concerning severability or nonseverability exists
only in anticipation of judicial review. In the ordinary case, a standard-less nonseverability
clause is superfluous since the Legislature, once confronted with a judicial ruling that a
provision of a statute is unconstitutional, may always revisit the subject anew, irrespective
of whether the court deemed the unconstitutional provision severable. Such a practice
leaves it to the legislative body to assess whether the statute, as affected by the judicial
interpretation, is acceptable. Indeed, this practical fact may account for the relative rarity of
nonseverability provisions. Having said this, for purposes of this appeal, we may assume
that, as a general matter, nonseverability provisions are constitutionally proper. There may
be reasons why the provisions of a particular statute essentially inter-relate, but in ways
which are not apparent from a consideration of the bare language of the statute as
governed by the settled severance standard set forth in Section 1925 of the Statutory
Construction Act. In such an instance, the General Assembly may determine that it is
necessary to make clear that a taint in any part of the statute ruins the whole. See
generally Kameny, Are Inseverability Clauses Constitutional?, 68 ALB. L. REV. at 1000
(arguing that severability determinations are “guesswork by definition, and it is
understandable for legislators to fear that the courts might guess wrong.”). Or, there may
be purely political reasons for such an interpretive directive, arising from the concerns and
compromises which animate the legislative process. See Michael D. Shumsky,
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Severability, Inseverability, and the Rule of Law, 41 HARV. J. ON LEGIS. 227, 267-68 (2004)
("When [a legislature] includes an inseverability clause in constitutionally questionable
legislation, it does so in order to insulate a key legislative deal from judicial interference.");
Israel E. Friedman, Comment, Inseverability Clauses in Statutes, 64 U. CHI. L. REV. 903,
914 (1997) (“[I]nseverability clauses serve a key function of preserving legislative
compromise;” they “bind[] the benefits and concessions that constitute the deal into an
interdependent whole.”). In an instance involving such compromise, the General Assembly
may determine, the court’s application of the logical standard of essential interconnection
set forth in Section 1925 might undo the compromise; a nonseverability provision, in such
an instance, may be essential to securing the support necessary to enact the legislation in
the first place. Once again, this is a concern that would not necessarily be apparent to a
court analyzing the bare language of the statute.
On the other hand, this Court is not naïve, and we recognize that a nonseverability
provision is a legislative practice that, in certain instances, may be employed as a sword
against the Judiciary or the Executive, rather than as a shield to ensure preservation of a
legislative scheme or compromise.46 Where the provision appears to be aimed at securing
a coercive effect upon the Judiciary, it necessarily implicates the separation of powers.
46 A nonseverability provision could also be employed, in conjunction with a relatively minor
but constitutionally suspect provision in a bill, in the hope that the courts will strike down
legislation that the legislative body did not truly support, but passed for reasons of political
expediency. See generally Kameny, Are Inseverability Clauses Constitutional?, 68 ALB. L.
REV. at 1001 (“The other questionable use of inseverability, a sort of poison-pill device …,
involves an attempt to sabotage a statute. The legislators might assume that the statute
contains some unconstitutional provision already …, or they might insert both an
inseverability clause and a new provision whose unconstitutionality was fairly plain … .
Such a clause can serve a dual purpose: it can ensure invalidation of the law, and at the
same time legislators who oppose the bill in principle, but whose constituents favor it, can
feel comfortable voting for the bill and gaining political advantage without concern that the
bill might survive judicial scrutiny.”).
[J-36A-C-2006] - 95
Although there is little authority or commentary concerning nonseverability provisions
(indeed, what commentary there is notes the lack of authority), those authorities to consider
the matter have distinguished (and rightfully so, in this Court’s view) between appropriate
uses of nonseverability clauses and uses which are more problematic in light of separation
of powers concerns. Kameny, whose point of departure was the Commonwealth Court’s
opinion in Kennedy, described the compensation statute and nonseverability provision at
issue there as follows:
Pay increases for government employees are never politically popular, but
this bill seemed unremarkable -- although one could question the propriety of
having the increase in expense allowances take effect immediately, so that
the legislators were in effect voting an increase for themselves. Yet the truly
extraordinary feature of the bill was not the hint of self-dealing, but rather the
way in which the legislators sought to clothe the self-dealing in protective
garb. For the bill contained the following language: "The provisions of this
act are nonseverable. If any provision of this act or its application to any
person or circumstance is held invalid, the remaining provisions or
applications of this act are void." The implications of this clause are
inescapable: there was some question as to the constitutionality of having
legislators increase their own expense allowances; the legislature foresaw
that a constitutional challenge was possible; and the inseverability clause
ensured that if a court struck down the increase in legislators' expense
allowances, the increase in judicial salaries would be sacrificed as well.
Kameny, Are Inseverability Clauses Constitutional?, 68 ALB. L. REV. at 997-98. Kameny
describes this use of a nonseverability provision as “serv[ing] an in terrorem function, as the
legislature attempts to guard against judicial review altogether by making the price of
invalidation too great.” Id. at 1001. This sort of practice, he continues, is “especially
troubling” because it “represent[s] an attempt by the legislature to prevent the judiciary from
exercising a power that rightly belongs to it … . These clauses, in other words, amount to
coercive threats.” Id. See also Friedman, Inseverability Clauses in Statutes, 64 U. CHI. L.
REV. at 919-20 (although nonseverability clauses should generally be honored and should
be shown more deference than severability clauses, “courts’ deference to the plain
[J-36A-C-2006] - 96
meaning of inseverability clauses should not be unlimited. If giving effect to an
inseverability clause would result in overstepping the bounds of legislative or judicial
authority, then the clause should not be followed.”). Accord Brown, 664 S.W.2d at 920
(declining to enforce nonseverability clause because “[t]he restriction placed on the
executive by [the nonseverability clause] effectively and unconstitutionally limits and
interferes with the governor’s mandated duties.”).
As we have noted above, this Court has never deemed nonseverability clauses to be
controlling in all circumstances. And, in the case sub judice, given the separation of
powers concerns that arise from inclusion of the clause in a statute such as Act 44, which
includes compensation provisions for the Judiciary, we hold that the clause is ineffective
and cannot be permitted to dictate our analysis. Although we have confidence that no
member of the Pennsylvania Judiciary in a position to pass upon the statute in fact would
allow the effect of the clause to influence the analysis of any constitutional challenge, the
fact remains that the clause, if deemed effective, acts as an incentive to engage in a less
exacting constitutional inquiry. As the Jorgensen Court noted, in discussing the importance
of the separation of powers, “[r]etribution against the courts for unpopular decisions is an
ongoing threat.” 811 N.E.2d at 660. In this case, the potential “retribution” is built into the
statute itself in the would-be automatic effect of the nonseverability provision. It is
improper, to say the least, for the Legislature to put a coequal branch of government in
such a position. Whether this effect is the sole or primary purpose of the nonseverability
provision, and whether it is entirely deliberate, is of less importance than the fact of its
existence in such legislation, and the obvious influence such a provision might be designed
to exert over the independent exercise of the judicial function.47 In a case such as this, we
47 As Justice (later Chief Justice) Maxey noted in Com. ex rel. Smillie v. McElwee, 193
A. 628, 633 (Pa. 1937):
(continued…)
[J-36A-C-2006] - 97
conclude, enforcement of the clause would intrude upon the independence of the Judiciary
and impair the judicial function.48 Accordingly, we will not enforce the clause but instead
we will effectuate our independent judgment concerning severability.49 Therefore, and
consistently with our severability analysis above, we hold that the unvouchered expense
(…continued)
This court said in Appeal of City of Scranton School District, 113 Pa. 176,
190, 6 A. 158, 160 [1886]: “Attempts, in covert modes, to defeat its [the
Constitution's] plain provisions, must be set aside with the same certainty as
when the methods are open.” The act now before us is a legislative
usurpation of power. In placing it on the statute books the Legislature
stepped beyond the landmarks established by the Constitution and what it
did when thus “out of bounds” is of no validity. “There is no position which
depends upon clearer principle than that every act of a delegated authority
contrary to the tenor of its commission is void.” (Alexander Hamilton in the
“Federalist”.).
48 We find further support for our conclusion in the fact that none of the arguments in favor
of enforcing this nonseverability provision offer any persuasive explanation of how it served
some benign legislative purpose other than to attempt to influence and burden judicial
review. For example, Speaker Perzel suggests that the provision merely shows that the
General Assembly sought to ensure a “complete review and overhaul of public officials’
compensation” and not to tackle the task in “piecemeal fashion.” But the unvouchered
expense provision obviously was not necessary to the comprehensive overhaul itself; that
was already complete. Moreover, it is notable that here, unlike in PAGE, for example, the
General Assembly included a global and boilerplate nonseverability provision, and not a
partial, targeted, or specific one.
49 Mr. Justice Saylor suggests that, unless this Court expressly overrules the approach in
Consumer Party, we should apply a similar level of deference respecting the
nonseverability provision as the Consumer Party Court applied to Act 39’s adoption of midterm
unvouchered expenses. But, as we have noted, our reaffirmation of the rational
relationship rule in Consumer Party does not encompass reaffirmation of the application of
that test, including the level of deference shown. More importantly and fundamentally, we
do not believe that there is an equivalence between deference to legislative judgment
concerning the manner of defraying and accounting for legislative expenses, and deference
to a legislative attempt to dictate to the Judiciary the interpretation of a statute addressing
the subject of judicial compensation.
[J-36A-C-2006] - 98
provision, which plainly and palpably violates Article II, Section 8 of the Pennsylvania
Constitution, is severable from the otherwise-constitutionally valid remainder of Act 44.50
50 In light of our conclusion, we need not address the Judges’ contingent claim that
enforcement of the clause would violate Article V, Section 16(a) of the Pennsylvania
Constitution.
[J-36A-C-2006] - 99
IV. CONCLUSION AND MANDATE
A. Wehold that Act 72’s repeal of Act 44 clearly, palpably, and plainly violates Article V,
Section 16(a) of the Pennsylvania Constitution insofar as it reduces the judicial
compensation that resulted from the formula adopted by Act 44, compensation which the
Judiciary began to receive in July of 2005. We also find that the unconstitutional provision
is severable from the remainder of the Act. Accordingly, we enjoin Act 72 in part. The
effect of our finding that the Act 72 repeal is ineffective in this limited respect is that Act 44’s
provisions amending 42 Pa.C.S. §§ 1801-1809, which relate solely to the formula to
determine compensation paid to the Judiciary, remain in force.
B. We will not reach Speaker Perzel’s argument concerning the provision in Act 44
which establishes a new cost-of-living formula for future judicial compensation. See Act 44,
§ 1 (amending 42 Pa.C.S. § 1810). We make no determination because the issue is not
properly before us, the parties were not asked to brief it, and it is speculative whether such
an issue will ripen.
C. Turning to Act 44, we find that Stilp’s Article III challenges to the legislation lack
merit, and the presumption of constitutionality controls.
D. However, we find merit in Stilp’s claim that Act 44’s provision respecting mid-term
unvouchered expense allowances to members of the General Assembly, see Act 44, § 2
(amending 46 Pa.C.S. § 1107), is unconstitutional as violative of Article II, Section 8 of the
Pennsylvania Constitution. We also agree with Stilp that the nonseverability provision in
Act 44 is unenforceable in light of separation of powers concerns. Accordingly, we hold
that this unconstitutional provision is severed from the remainder of Act 44.
E. Finally, we turn to remedy. We note that this Court did not draft or play any role in
the enactment of the legislation that became Act 44. That legislation, passed by the
General Assembly and duly signed by the Governor, set the compensation judges were to
[J-36A-C-2006] - 100
receive, and in July of 2005 the Judiciary began receiving that compensation, only to have
the compensation unconstitutionally reduced by Act 72.
The Constitution of Pennsylvania mandates that the Judiciary shall be compensated
as provided by law. To effectuate that constitutional command, we order that the Treasurer
of the Commonwealth: (1) shall forthwith calculate judicial compensation in accordance with
Act 44, as explained in this Opinion; and (2) shall, upon receipt of vouchers prepared by the
Administrative Office of Pennsylvania Courts, reimburse members of the Judiciary for the
unconstitutional diminution in compensation effected by Act 72. It is so ordered.
Madame Justice Newman, Messrs. Justice Eakin and Baer, and Madame Justice
Baldwin join in this opinion.
Mr. Chief Justice Cappy did not participate in the consideration or decision of this
matter.
Mr. Justice Saylor files a concurring and dissenting opinion.
Hey looky there folks, 10:29 a.m. learned to copy and paste! yippee!!!! all is not lost. NEPA is on the cutting edge once again!!!!
The Weekender will be closed.
Hey 10:58...I'm not unemployed. I have a decent job in television that most definitely pays more than what you're making from 16 or 50 or one of those crappy newspapers. I am better than any of you fuckwads in Scranton. Always have been...always will be. Asswipes.
And 12:27, who are we to say otherwise, with your advanced vocabulary and all. Your cushy TV job is probably on the shit list too, like everyone else's
Couple of things...10:29 is a horse's ass...also Mr. Northeast PA Media News and Gossip has evidently abandoned this effort, not just because Frank and Gabby is the only thing posted since 4/10 but because he hasn't deleted 10:29. Let's hope the letter carrier has noticed if his mail is piling up on the porch!
Re: 5:35.
10:29 was just what you surmise -- a test to see if this ship of fools still has a captain. I figured the text of a 100-page state Supreme Court opinion oughta knock Mr. NEPA out of his administative coma.
What I can't believe is that our host hasn't been outed yet. How many journos in the Scranton Wilkes-Barre metroplex have been on vacation for the last two weeks?
-Signed, a horse's ass.
Snoochies
NEPA Media has left the building.
Yea, i agree with 4:11 is this site dead?
230 frakkin' comments. I don't see the fascination with Fred and Ethel Mertz.
230 frakkin' comments. I don't see the fascination with Fred and Ethel Mertz.
Has this blog died? No new posts?
I'm out of town, someone fill me (us) in?????
Did this blog die or what.
May 1, 2008 -- Microsoft's board of directors concluded its meeting last night without reaching a decision on the software giant's next move in its $42 billion takeover battle with Internet icon Yahoo!
The range of options open to Microsoft and its CEO Steve Ballmer include raising his current offer for Yahoo!, taking it directly to shareholders or walking away from the deal altogether.
Yahoo! has remained firm that Ballmer's original $31 a share cash and stock offer, which is now valued at $29.06, substantially undervalues the company.
The two sides had made progress on some terms of a merger about 11 days ago at a meeting in Portland, Ore., but the talks did not include negotiations on the price of a transaction, sources familiar with the situation said.
Those talks ended abruptly when the Microsoft camp, including Ballmer, became steamed after one of Yahoo!'s advisers mentioned that the company was worth $40 a share - or about $14 billion more than Microsoft's offer, source said.
Did the TL pay their employees this week??????
Benefit Reductions Are One Possibility, Even for Part-Timers
It is no secret that more Americans are working past retirement age. And as economic pressures mount, the decision to remain in the work force -- or return after retiring -- might be less about choice and more about necessity. Regardless, many professionals don't want to stop working -- they just want to work less.
But what workers with defined-benefit pensions and those who already have tapped Social Security benefits might not realize is that there are significant financial disincentives that make working into retirement age a tricky proposition.
More from WSJ.com:
• The Latest Office Perk: Getting Paid to Volunteer
• Pay Gap Fuels Worker Woes
• How Stay-at-Home Moms Are Filling an Executive Niche
Without understanding where the financial time bombs lie, many older workers could find their Social Security payments reduced and their pension-plan-payout rates at serious risk, says Chantel Sheaks, a principal at Buck Consultants, an employee-benefits and human-resources consulting firm.
"People want to move forward and forge new careers, but they don't want to be penalized," says Jeri Sedlar, an expert on the aging work force and author of "Don't Retire, Rewire."
A company's pension benefits typically are based on a worker's salary at the time of retirement. Say you retire as a full-time employee earning $120,000. Your pension payout is based on that salary. But if you continue working part time at a reduced salary of, say, $60,000 a year, your pension benefit would be based on the lower salary -- and be permanently reduced.
Another pitfall: Those who retire and draw Social Security before 65 years old (or later, depending on your birth year) and then return to work face benefit reductions when taxable earnings top $13,560 a year. Benefits are docked $1 for every $2 of income earned if you are under your full retirement age.
In 2003, the latest year studied, about four million people between the ages of 62 and 65 were drawing Social Security benefits; about 1.6 million were working at least part time, estimates Jae G. Song, an analyst in the division of economic research at the Social Security Administration.
To help make re-entering the work force easier for older workers, a slate of legislation aims to alleviate the disincentives. Sen. Herb Kohl (D., Wis.), chairman of the Senate Special Committee on Aging, is spearheading several bills, one of which will be introduced Tuesday and another later this spring. Among the highlights: rules that would prohibit pension-plan-benefit penalties if an individual chooses to keep working on a reduced schedule, and a revision to Social Security benefits that proposes a reduction of $1 for every $3 earned before the full retirement age.
These bills follow the Older Worker Opportunity Act and Health Care and Training for Older Workers Act that Sen. Kohl introduced in February 2007. The first act offers a tax credit for employing older workers in flexible work programs. The second provides for extended Cobra coverage for older workers and improved access to job-training programs as well as establishes a clearinghouse of best practices for hiring and retaining older workers. It is unclear whether the bills will gain the traction needed to pass.
Other areas of reform, suggests Marc Freedman, founder of San Francisco think tank Civic Ventures, is to allow workers over 65 to opt out of the Social Security payroll tax and allow people between 55 and 65 to buy into Medicare in order to smooth the way for a move to another job.
If you are older and plan to keep working, watch for these pitfalls:
Pension Peril
Scenario: You retire and begin to take a distribution from your defined-benefit plan. A few years later, you return to that company in a similar position and work more than 1,000 hours a year -- or more than 20 hours a week for a year.
The Risk: Your pension benefits are likely to be temporarily suspended, says Anna Rappaport, an actuary and retirement-strategy consultant and senior fellow at the Conference Board.
What You Can Do: Ms. Rappaport suggests you research and understand your benefits and ask whether they will be suspended if you return to work and how your payments will be recalculated when you retire again. Or, ask your former employer whether you can return as a contract worker or consultant, or as a temporary worker through an employment agency.
Social Security Drain
Scenario: You retired early and opted to receive Social Security benefits early. Now, you want to return to work -- and you expect to bring home more than pocket change.
The Risk: Your Social Security payments will be reduced by $1 for every $2 you earn if your taxable income is more than $13,560 a year.
What You Can Do: The only thing to do is abstain from drawing Social Security benefits until full retirement age.
Medical Coverage Gaps
Scenario: You are eligible for Medicare and over 65, but you continue to work for an employer that offers medical insurance.
The Risk: Medicare coverage and supplements won't be available to you since your employer is required to insure you. "This policy is a tremendous disincentive for companies to hire older workers, because they end up paying the full cost of medical bills," says Ms. Rappaport. Continuation of retiree medical benefits that some companies offer could be lost if you go back to work, and you could end up losing this coverage when you retire for good.
What You Can Do: Investigate your company's retiree-benefits policy before you agree to come back to work.
Thursday, February 14, 2008
-30-
I owe you an explanation.
When I started this blog back in 2005, I did so as a way to point out the flaws in my profession, and to let people know what goes on behind the scenes in local news, whether it was WNEP using Wikipedia as an on-air source, the firings of veteran WBRE personnel, or WYOU's Dialing for News. I never set out to make anyone look bad; I've worked alongside many people here, and most are wonderful people who love to do what they do...to tell the stories people want to know, and need to know.
For better or worse, I did that here. Beale's Bites attracted a lot of attention, namely from current and former journalists in the area, who shared their stories and their experiences, both good and bad. Unfortunately, some of that drew in the people who wanted to do nothing more than mindlessly grind axes and call people names. Even the best moderation couldn't keep that away.
The negativity got to me, and I had to back off. So I did. One day, I logged out of the blog and my e-mail account, and stayed away for about three months. I hope you could understand that, even if you wondered why I never responded to any e-mails. Time passed, and I thought about returning, so I checked my e-mail, and found plenty of supportive messages, urging me to keep it up, provided I didn't end up like Jimmy Hoffa.
So I returned, rested, refreshed, and ready to go. All would be well, except for the fact that the negativity returned, perhaps twice as bad as it was. Endless comments to wade through, calling people names, bringing personal matters into the discussion, etc. But that wasn't the spark that made me, once again, log out, and drop out.
One day, I received a phone call from an acquaintence who works in the "business." The message I received from a family member was regarding a matter at the station, and that the person specifically wanted to let me know about it. I took that as a sign. "You're busted, Howard." The fact that the call was placed to my home, and was given to a family member, troubled me. I was not about to lose my friends and my career over a blog, and let that affect my family in any way.
I logged out, and never returned, not even to check e-mails.
I do hope you can understand why I did what I did. Regardless, I felt I owed an explanation to everyone who read Beale's Bites or e-mailed me. You are the people who helped make this site what it was intended to be, an open and honest discussion about the state of journalism in this area. I can't thank you enough; this site was never about me, it was about you (at the risk of sounding like WYOU's promotions department!).
But I will not be able to continue Beale's Bites anymore, for the various reasons listed above. I've retired, turned in my press pass, gone to that great newsroom in the sky (where the water cooler always works), whatever you want to call it. There's still a few blogs around here where you can get your insider fix, such as NEPA Media. A former news director also has a VERY excellent blog about his experiences in journalism. I won't link to it, because I don't know if he'd want the attention, but I'll bet a lot of you already know about it. E-mail me if you'd like the link.
As for the title of this post, it was used to signify when a story ended. One of my former editors told me this was used back in the newspaper era (sometime before computers, but after stone tablets), so a reporter who filed a story had a way to let the editor know when the story was done, as opposed to, "Did I miss the last page of this story? I don't know!" I've used it ever since, as a tribute to the days when journalism was in the interest of the public, and not in the interest of the shareholders. Hopefully those days will return.
Thank you all.
-30-
posted by Howard Beale at 8:02 PM
Sunday, July 29, 2007
Journalism degree costs more
Some colleges across the nation are changing the tuition prices for students who major in certain fields, because of things like "the high salaries commanded by professors in certain fields, the expense of specialized equipment and the difficulties of getting state legislatures to approve general tuition increases." For journalism students at Arizona State University, it means they'll pay an extra $250 per semester (freshmen excluded).
Yet, students who want to go into broadcast journalism will be lucky to earn more than $23,000 per year in their first job. I would say they'd be lucky to earn $21,000 per year, as I've seen job postings for full-time journalism jobs where the salary is far less (in one case, $15,000 per year!).
Many news directors always wonder why it's getting harder to find a good journalism student. Here's a hint: they went into public relations to make more money.
posted by Howard Beale at 12:44 PM 5 comments
Saturday, July 28, 2007
Photographer killed in chopper crash once worked at WNEP
One of the four journalists killed in Friday's crash involving two news helicopters over the skies of Phoenix, Arizona was a former WNEP employee. KNXV photographer Rick Krolak worked for WNEP in the late 1970s and early 1980s, and also spent time in New York at stations in Elmira and Binghamton.
While WNEP is the only station around here with a helicopter, Skycam 16 has seen its share of crowded skies. Andy Palumbo wrote in his blog about one such experience during a NASCAR race at Pocono a few years ago.
"Skycam wasn't the only chopper in the air over the track. State Police were up. A private helicopter was circling, as well as one or two from the television network covering the race. [...] There were four or five helicopters over Long Pond that day and our pilot made sure we stayed out of trouble. Each of us was assigned an altitude. We kept out of each other's way. Still, I was relieved when the noon broadcast was over and we headed to the pad at WNEP."
Those of you who've seen WYOU's old promos on YouTube know that the station had a helicopter for a brief period in the early 1990s. According to one Beale's Bites reader, station management at WYOU and WNEP met to discuss things such as "how close, how far, aerial spacing, right of way" between both helicopters, to prevent what happened in Phoenix.
posted by Howard Beale at 8:25 PM 4 comments
Friday, July 27, 2007
Tragedy in the sky
Four people died in Phoenix, Arizona today when two television news helicopters collided as they followed a car chase. The pilot and photographer aboard each helicopter died.
Part of me wonders why something like this didn't happen sooner. In large markets like Phoenix, every station has a helicopter, and whenever there's a car chase, up they go. Combine that with a police helicopter, and you've got perhaps four or five hovering close to each other, trying to pay attention to the chase, and to each other. It's a recipe for a tragedy, which sadly happened in this case.
For those of you who aren't squeamish, there is video of the last seconds of video of one of the helicopters.
posted by Howard Beale at 7:54 PM 6 comments
Thursday, July 26, 2007
Hazleton's back in the spotlight
A federal judge just decided that Hazleton's immigration ordinance - the law that brought so much national attention to our area - is unconstitutional. At the time I posted this, WBRE and WYOU already had a breaking news update posted on its website. WNEP didn't have anything.
This is sure to be the top story on all three stations tonight, so I'd like to know your thoughts on tonight's coverage. Respond here, or shoot me an e-mail!
EDIT: Typo fixed. L before E!
posted by Howard Beale at 1:35 PM 8 comments
Celebrity news, BEGONE!
A lot of you paid attention and applauded when MSNBC's Mika Brzezinski ripped up a script about Paris Hilton a couple of weeks ago. Now, here's something new to buzz about. CNN anchor Jack Cafferty also expressed his disgust with celebrity news by asking to skip a story about Lindsay Lohan.
I don't know if both Brzezinski and Cafferty's on-air displeasure was real, or scripted, but it's refreshing. I'm fed up with all of the attention paid to spoiled celebrities who get arrested, when there's more than enough local and national/international news to "fill the void" in a newscast. If there's one good thing to be said about the news stations in this area, it's that they're not obsessed with celebrity news.
posted by Howard Beale at 6:22 AM 7 comments
Friday, July 20, 2007
WYOU reporter now writing for newspaper
Former WYOU reporter Phil Yacuboski has been hired as a writer for Scranton's Electric City. He's also done some work for them in the past.
A reader also swears to have heard Yacuboski reading the news on an area radio station this week. Is true, perhaps that non-compete clause from Nexstar is no longer an issue?
posted by Howard Beale at 9:08 AM 20 comments
Thursday, July 19, 2007
Buyer beware
It's pretty bad when you have to do a story about people using your station's website to try to scam people. WBRE reported this week that scammers were trolling classifieds ads on PAHomePage.com to find people to rip off through so-called advance fee fraud. You know how it goes; seller posts ad, scammer sends check for more than the actual price, asks seller to send difference. Good luck getting your money.
(PAHomePage.com's classifieds now sport a warning from WBRE consumer reporter Jeff Chirico on how not to lose your money.)
To be fair, PAHomePage.com isn't the only place where scammers look for suckers. Anyone who's posted a classified ad, in the newspaper or online, has probably gotten a bite from someone hoping to rip them off.
posted by Howard Beale at 10:22 PM 4 comments
We somehow impressed New York City
I spent the past week getting caught up on some off-Internet work, and look at what I missed! Two accused cop killers from New York City pick the Poconos as their hideout, just like the Fort Dix terror suspects, and the area is swarmed by reporters from the Big Apple.
A person with close knowledge of the whole affair writes in to say that WBRE and WNEP did great coverage by teaming up with their respective network affiliates in NYC. "Apparently all of NYC guys left with stellar impressions of the Scranton news market... go figure!"
The folks from WNBC probably didn't leave with good impressions of the State Police. The aformentioned source reports a trooper from PSP Swiftwater ordered the combined Wilkes-Barre/Scranton/NYC press corps off I-80 around 6:15 p.m. last Wednesday, and killed WNBC's live shot after the crew didn't move its satellite truck.
"The bottomline, PSP was awfully difficult to work with during this ordeal. It wasn't until midnight that a dispatcher from Swiftwater informed everyone about the nuts and bolts, and she only did it out of compassion for the lack of repsect all night long."
posted by Howard Beale at 9:36 PM 8 comments
Say what? We're officially confused. Are these recent postings some kind of code? If so, we can't decide if
1) you are trying to signal that you have been laid off at The Times-Leader because they did not meet payroll this week, and now are employed with the Wall Street Journal;
2) You have quit updating this blog because some old newspaper guys told you once you turned -30- you should post a message signaling your retirement from blogging;
3) You are in a basement prison that your father put you in and you have six kids by him and you cannot handle any more negativity.
Which is it going to be, number one, two or three?
WASHINGTON—A recent glut of feature stories on the death of the American newspaper has temporarily made the outmoded form of media appealing enough to stave off its inevitable demise for an additional 21 days, sources reported Monday. "People really seem to identify with these moving, 'end-of-an-era'-type pieces," Washington Post editor-in-chief Leonard Downie, Jr. said. "It's nice to see that the printed word is still, at least for now, the most powerful medium for reporting on the death of the printed word." Downie added that the poignant farewell Op-Ed he recently penned was so well received that he will be able to hold onto his job for up to six more days.
WNEP GOES ONE-MAN BAND!!!! A HUGE STEP BACK FOR THE NEWS STATION!!!
------
WNEP-TV in Scranton/Wilkes-Barre, Pennsylvania has an upcoming opening for a Reporter/Videographer who can enterprise and report compelling local news from our new Pocono Bureau. Can you "One-Man Band"? Do you love beat reporting? Are you skilled at developing stories and contacts? Please send cover letter, resume and non-returnable VHS/DVD resume tape to: Erik Schrader, News Director, WNEP-TV, 16 Montage Mountain Road, Moosic, PA 18507. WNEP is an Equal Opportunity Employer.
PRINCIPLE ACCOUNTABILITY:
1. Responsible for writing and editing fair, accurate, high quality copy. Must be a conversational writer.
2. Must be aggressive and enterprising with a track record of breaking stories.
3. Must be able to deliver a compelling live shot.
4. Other duties as assigned.
SKILLS, KNOWLEDGE AND QUALIFICATIONS:
1. Minimum 2 years as a "One-Man Band".
2. Writing skills.
3. Strong on-camera presence.
4. High journalistic standards.
5. A valid drivers license.
6. Knowledge of newsroom computers systems and the internet, including non-linear editing.
7. Demonstrable typing and computer skills.
8. Must have good communication and telephone skills.
9. Must be able to work under extreme pressure and stress and meet deadlines.
STATEMENT ABOUT OTHER DUTIES:
This is not necessarily an exhaustive list of all responsibilities, skills, duties, requirements, efforts or working conditions associated with the job. While this is intended to be an accurate reflection of the current job, management reserves the right to revise the job or to require that other or different tasks be performed when circumstances change, e.g. emergencies, changes in personnel, work load, rush jobs, special projects, technological developments, etc.
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College tuition
2:19 AM
Cost of higher learning going up
Local colleges and universities have raised tuition, fees for 2008-09 year.
ANDREW M. SEDER aseder@timesleader.com
As gas, health care and food prices continue to climb, the cost of going to college is increasing at a much steadier rate and shows no signs of slowing down.
Wilkes will raise its tuition by 4.5 percent for the 2008-2009 academic year.
Aimee Dilger/the times leader
Times Leader Photo Store
Related headlines
Going to college? Survey the fees
All but one Northeastern Pennsylvania college has announced its tuition, room and board, and mandatory fee schedules for the 2008-09 academic year. Each school’s costs for new students were hiked, ranging from 4 percent at Lackawanna College to 9.7 percent at the University of Scranton.
For Luzerne County schools, Misericordia University and King’s College both approved 5.4 percentage increases for tuition with Wilkes University approving a 4.5 percent hike. Luzerne County Community College changed the way it charges, going from a per-credit rate to a flat semester charge for full-time students.
The annual budgeting process is like walking a tight rope, said Mike Frantz, vice president for enrollment at Wilkes University.
“There’s that balance that we’re trying to strike,” Frantz said. “Keep education affordable while maintaining a degree of quality,” he said. In most years that’s a challenging task for boards of trustees that set the tuition rates.
Dr. Lisa Marie McCauley, King’s College vice president for business affairs and treasurer, said staff salaries and benefits account for 75 percent of the school’s budget. With increases for just those two expenditures usually at about 30 percent each year, the budget committee has a tough job.
“I would like to have a year where you don’t increase but the way costs increase I can’t see how,” McCauley said. “That’s almost impossible in today’s environment.”
According to the College Board, from the 2006-07 to the 2007-08 academic years, tuition costs increased nationally 4.2 percent at community colleges, 6.3 percent for private institutions and 6.6 percent at public four-year colleges.
Thomas P. Leary, president at LCCC, said, “The primary mission of LCCC is to keep education accessible and affordable for students. We are aware of the many financial obligations our students must meet while at the same time trying to finance their education.”
That’s the double-edged sword most colleges face, Frantz said.
Tuition rates have to be attractive to potential students and need to be competitive, but to offer a top-quality education to attract students means paying big bucks for top-rate professors, equipment and facilities, Frantz said.
While half of the local colleges have seen tuition and mandatory fees jump by at least 28 percent over the past six years – with the University of Scranton leading the way with a 46.8 percent jump – the average annual bump is about 5 percent.
“I’d like my health care costs or the price of gas to only go up 5 to 6 percent each year,” Frantz said. According to AAA records, the price of an average gallon of gas has jumped 118 percent since September 2003.
The national inflation rate the first quarter of this year has hovered around 4 percent.
The Rev. Scott J. Pilarz, S.J., president of the University of Scranton, also addressed the predicament colleges are put in by trying to keep tuition increases to a minimum while offering top-notch education.
“Our parents tell us that we need to continue to invest in resources and programs that will add even more value to a Scranton degree. At the same time, they expect that we will do our best to keep costs down, something we take seriously. We are nationally recognized for the value of a Scranton education. Nevertheless, higher education is an expensive enterprise . . . At the same time, we face increases in many costs that are beyond our control, such as energy, health care, and technology.”
Joseph X. Garvey, vice president of business affairs at Marywood University, said local colleges are not only mindful of keeping tuition competitive on a national level, but they’re aware of what other local private schools are charging.
“It is extremely difficult for Marywood University, for that matter, all small to mid-size independent institutions of higher education, to maintain reasonable tuition costs to students. Competition is a significant factor in setting tuition and fees, particularly in NEPA where there is a concentration of similar size colleges and universities vying for the same student,” Garvey said.
Some schools, like Lackawanna College, cater to a certain kind of student and know that to increase costs by more than a certain amount would leave those students with no other educational option.
Lackawanna College spokesman Kevin O’Hara said his school’s goal each year when setting tuition rates is to keep costs down and to keep the school’s tuition “among the lowest, if not the lowest” among the state’s private colleges.
“We serve primarily blue-collar families. You can’t price yourself out of the market,” O’Hara said.
While Lackawanna does have the lowest tuition/mandatory fee costs for private schools in the three-county area at $10,560, the University of Scranton has the steepest tuition/fees. A freshman student enrolling for fall classes will need to shell out $31,576 for the year.
Education costs
School, percentage increase since 2003-04
University of Scranton, 46.8
Marywood University, 30.9
Keystone College, 29.9
King’s College, 29.4
Misericordia University, 29.4
Wilkes University, 28.2
Luzerne County CC, 19.4
Lackawanna College, 17.3
PSU local campuses, 2008-09 tuition not set yet
*
Total reflects tuition and mandatory fees, based on 30 credit hours per year.
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Angels’ Santana shuts out Kansas City 4-0
Preview | Box Score | Recap | MLB.TV Archive
By DOUG TUCKER, AP Sports Writer
7 hours, 46 minutes ago
Buzz Up
Print
Los Angeles Angels' Brandon Wo…
AP - May 5, 11:13 pm EDT
1 of 9MLB Gallery
KANSAS CITY, Mo. (AP)—So was this the best game Ervin Santana ever threw?
“So far,” said the Los Angeles Angels’ unbeaten right-hander, a sly smile spreading across his face.
In his first complete game since the night he got his first major league victory in 2005, Santana (6-0) allowed four hits and no walks and struck out nine in a masterful 4-0 victory Monday night over Kansas City.
Garret Anderson and Brandon Wood hit consecutive homers in a four-run ninth for the Angels, who now have a claim to pitching fame to go along with the 21 wins that tie them with Boston for the most in the AL.
Santana joined teammate Joe Saunders at 6-0, becoming the third and fourth Angels pitchers to open a season 6-0 or better. Since 1920, Saunders and Santana are just the eighth pair of teammates to start 6-0.
It’s a startling difference from last year for Santana, who was just 7-14 in 2007.
Series at a Glance
LA Angels 4
Kansas City 0
Mon, May 5 - Final
LA Angels at
Kansas City
Tue, May 6 - 8:10 pm ET
LA Angels at
Kansas City
Wed, May 7 - 8:10 pm ET
“He got a little frustrated last year because he was going out there at times without the tools he needed to do what he’s doing now,” said Angels manager Mike Scioscia. “He needed to work on his delivery and get back into his game. When he’s out there on the mound and he has his mechanics together, it’s a great combination. He got a little frustrated last year.”
It was the second career complete game for Santana and his first since hurling a five-hitter against the White Sox on May 23, 2005, for his first major league win.
Erick Aybar tripled into the right-center field gap leading off the ninth off Ramon Ramirez (0-1). With one out, left-hander Jimmy Gobble came in to face lefty Casey Kotchman, who hit the first pitch into center for a run-scoring single.
With two out, Anderson homered off Joel Peralta and then Wood followed with his home run.
Royals starter Brett Tomko went seven shutout innings in his best outing of the year. The left-hander, who entered the game 1-3 with a 6.26 ERA, allowed only two hits and two walks and struck out seven before giving way to Ramirez starting the eighth. Tomko allowed only one runner as far as second and struck out the side in the third inning on just 13 pitches.
Kansas City Royals pitcher Joe…
AP - May 5, 11:05 pm EDT
Throughout the cool, windless night, each side kept waiting for the other to make a mistake. Finally, by his own admission, Royals manager Trey Hillman did. He elected to go with relievers Ramirez, Gobble and Peralta instead of closer Joakim Soria, who has not been scored upon in 13 innings and got the saves in victories over Cleveland on Saturday and Sunday.
“I could have made a better decision to put Soria in,” said Hillman. “But I didn’t because it was tied, and he would have worked three days in a row.”
Tomko lowered his ERA to 4.93 while Santana’s dipped to 2.02.
“Santana was good,” said Royals leadoff hitter David DeJesus. “He could throw that fastball anywhere he wanted. He was getting ahead of every guy.”
Both starters benefited from some outstanding defense. The Angels’ Torii Hunter made a diving catch of John Buck’s sinking liner for the third out in the fifth and second baseman Mark Grudzielanek turned in a pair of fielding gems behind Tomko.
Saunders and Santana were already just the second pair of teammates who went 5-0 or better in the month of April, joining Aaron Sele and Rick Helling of the 1998 Texas Rangers.
Santana threw more changeups than he normally does and had terrific command of his fastball and slider
“It’s just trying to keep hitters off balance and throw a first-pitch strike all the time,” he said. “We have a lot more starts to go, so I have to keep it up and keep working hard.”
Notes
The game was the first of a season-longest 10-game homestand for KC. … The Angels hadn’t had back-to-back home runs since Gary Matthews and Kendry Morales did it in the fourth at Seattle last Aug. 28. … It was Ramirez’s first decision in the American League. … The Royals have stolen 16 bases and been caught 13 times.
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Updated 7 hours, 46 minutes ago
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Clemens apologizes for personal mistakes
Angels' Santana 6-0 after 4-hitter
Moyer pitches, hits Phillies by Arizona
McGowan tops Vazquez, Jays sweep ChiSox
Schilling to throw for first time in '08
Dice-K walks 8 in win, BoSox beat Tigers
Pujols hustles home to help Cards win
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just wondering,is this blog gone? dead? If there is a new link, let us know - we are bored in philly and love to read this stuff - BK
“It’s an opportunity to fire a brand-new, state-of-the-art weapon. … The general mood is one of excitement, anticipation. Naturally, you have some concerns in terms of squaring away family responsibilities and all that. But as opposed to several (previous deployments), we have several months notice, and they appreciate that,” Perino said.
After training at Camp Shelby, Bravo Battery will deploy from Fort Dix, N.J. It is expected to return from Iraq by the end of 2009, Perino said.
Perino was unable to provide additional information on the deployment.
“We all just found out about this, so details are very preliminary,” he said.
Perino said the soldiers are honored that the battery was chosen to serve with a Stryker brigade, but it’s not a total surprise, given that Pennsylvania’s National Guard is “considered to be the best National Guard in the country, and our battalion is considered to be the best battalion.”
“We’re dependable, we’re always there. Whenever we’re asked, we answer the call. … These soldiers are highly talented, well-trained, and they always give their very best. The opportunity to actually mobilize as artillerymen is looked at as an honor,” Perino said.
Perino said he wants the public to know that the 109th’s soldiers are dedicated to serving the people of the Wyoming Valley.
“They seem to make everybody proud time and time again,” he said.
Perino also acknowledged the community support the soldiers have received through the years.
“We really appreciate the support of people in the Wyoming Valley and the surrounding area. It’s second to none, and we really appreciate that,” he said.
WHAT’S NEXT
The 109th Field Artillery’s Bravo Battery stationed in Nanticoke, supplemented by members of Plymouth-based Alpha Battery, will mobilize in mid-September for training at Camp Shelby, Miss. The soldiers are expected to deploy to Iraq from Fort Dix, N.J., in mid-February and return home by the end of 2009.
Steve Mocarsky, a Times Leader staff writer, may be reached at 459-2005“It’s an opportunity to fire a brand-new, state-of-the-art weapon. … The general mood is one of excitement, anticipation. Naturally, you have some concerns in terms of squaring away family responsibilities and all that. But as opposed to several (previous deployments), we have several months notice, and they appreciate that,” Perino said.
After training at Camp Shelby, Bravo Battery will deploy from Fort Dix, N.J. It is expected to return from Iraq by the end of 2009, Perino said.
Perino was unable to provide additional information on the deployment.
“We all just found out about this, so details are very preliminary,” he said.
Perino said the soldiers are honored that the battery was chosen to serve with a Stryker brigade, but it’s not a total surprise, given that Pennsylvania’s National Guard is “considered to be the best National Guard in the country, and our battalion is considered to be the best battalion.”
“We’re dependable, we’re always there. Whenever we’re asked, we answer the call. … These soldiers are highly talented, well-trained, and they always give their very best. The opportunity to actually mobilize as artillerymen is looked at as an honor,” Perino said.
Perino said he wants the public to know that the 109th’s soldiers are dedicated to serving the people of the Wyoming Valley.
“They seem to make everybody proud time and time again,” he said.
Perino also acknowledged the community support the soldiers have received through the years.
“We really appreciate the support of people in the Wyoming Valley and the surrounding area. It’s second to none, and we really appreciate that,” he said.
WHAT’S NEXT
The 109th Field Artillery’s Bravo Battery stationed in Nanticoke, supplemented by members of Plymouth-based Alpha Battery, will mobilize in mid-September for training at Camp Shelby, Miss. The soldiers are expected to deploy to Iraq from Fort Dix, N.J., in mid-February and return home by the end of 2009.
Steve Mocarsky, a Times Leader staff writer, may be reached at 459-2005“It’s an opportunity to fire a brand-new, state-of-the-art weapon. … The general mood is one of excitement, anticipation. Naturally, you have some concerns in terms of squaring away family responsibilities and all that. But as opposed to several (previous deployments), we have several months notice, and they appreciate that,” Perino said.
After training at Camp Shelby, Bravo Battery will deploy from Fort Dix, N.J. It is expected to return from Iraq by the end of 2009, Perino said.
Perino was unable to provide additional information on the deployment.
“We all just found out about this, so details are very preliminary,” he said.
Perino said the soldiers are honored that the battery was chosen to serve with a Stryker brigade, but it’s not a total surprise, given that Pennsylvania’s National Guard is “considered to be the best National Guard in the country, and our battalion is considered to be the best battalion.”
“We’re dependable, we’re always there. Whenever we’re asked, we answer the call. … These soldiers are highly talented, well-trained, and they always give their very best. The opportunity to actually mobilize as artillerymen is looked at as an honor,” Perino said.
Perino said he wants the public to know that the 109th’s soldiers are dedicated to serving the people of the Wyoming Valley.
“They seem to make everybody proud time and time again,” he said.
Perino also acknowledged the community support the soldiers have received through the years.
“We really appreciate the support of people in the Wyoming Valley and the surrounding area. It’s second to none, and we really appreciate that,” he said.
WHAT’S NEXT
The 109th Field Artillery’s Bravo Battery stationed in Nanticoke, supplemented by members of Plymouth-based Alpha Battery, will mobilize in mid-September for training at Camp Shelby, Miss. The soldiers are expected to deploy to Iraq from Fort Dix, N.J., in mid-February and return home by the end of 2009.
Steve Mocarsky, a Times Leader staff writer, may be reached at 459-2005“It’s an opportunity to fire a brand-new, state-of-the-art weapon. … The general mood is one of excitement, anticipation. Naturally, you have some concerns in terms of squaring away family responsibilities and all that. But as opposed to several (previous deployments), we have several months notice, and they appreciate that,” Perino said.
After training at Camp Shelby, Bravo Battery will deploy from Fort Dix, N.J. It is expected to return from Iraq by the end of 2009, Perino said.
Perino was unable to provide additional information on the deployment.
“We all just found out about this, so details are very preliminary,” he said.
Perino said the soldiers are honored that the battery was chosen to serve with a Stryker brigade, but it’s not a total surprise, given that Pennsylvania’s National Guard is “considered to be the best National Guard in the country, and our battalion is considered to be the best battalion.”
“We’re dependable, we’re always there. Whenever we’re asked, we answer the call. … These soldiers are highly talented, well-trained, and they always give their very best. The opportunity to actually mobilize as artillerymen is looked at as an honor,” Perino said.
Perino said he wants the public to know that the 109th’s soldiers are dedicated to serving the people of the Wyoming Valley.
“They seem to make everybody proud time and time again,” he said.
Perino also acknowledged the community support the soldiers have received through the years.
“We really appreciate the support of people in the Wyoming Valley and the surrounding area. It’s second to none, and we really appreciate that,” he said.
WHAT’S NEXT
The 109th Field Artillery’s Bravo Battery stationed in Nanticoke, supplemented by members of Plymouth-based Alpha Battery, will mobilize in mid-September for training at Camp Shelby, Miss. The soldiers are expected to deploy to Iraq from Fort Dix, N.J., in mid-February and return home by the end of 2009.
Steve Mocarsky, a Times Leader staff writer, may be reached at 459-2005
NEW YORK (Reuters) - Yahoo Inc chief Jerry Yang was set to meet staff on Tuesday after signaling a more open stance towards a takeover by Microsoft Corp.
ADVERTISEMENT
Yang told Reuters in an interview on Monday that he had "mixed feelings" about events at the weekend, when talks broke down. Investors showed their disappointment over the breakup of negotiations by sending Yahoo shares down 15 percent on Monday.
Asked if Yahoo would still leave a door open for Microsoft to return, Yang said: "If they have anything new to say, we would be open. ... I am more than willing to listen."
Yang said it had been Microsoft that ended the discussions.
"We were negotiating a way to find common ground and then on Saturday they chose to walk away," said the 39-year-old co-founder of the pioneering Internet company. "They started it and they walked away."
Yang, who owns about 4 percent of the company, was expected to meet with employees on Tuesday in an effort to reassure them after the Microsoft talks ended.
Yahoo shares rose 4.7 percent in Frankfurt on Tuesday.
After three months of negotiations, Microsoft CEO Steve Ballmer raised his offer for Yahoo to $33 per share from an initial $31, for a total deal value of about $47.5 billion.
Yang held out for $37 per share, saying that even the sweetened offer did not value Yahoo properly for its Web search advertising technology, its prominence in selling display ads and its lucrative overseas holdings.
But its two largest shareholders independently told The New York Times they would have sold for as little as $34.
"I am extremely angry at Jerry Yang and at the so-called independent board," Gordon Crawford, portfolio manager for Capital Research Global Investors, the largest Yahoo shareholder with some 16 percent of stock, told the newspaper.
Some analysts said Yahoo shares, which dropped $4.30 to end at $24.37 on Monday, could have fallen 30 percent to closer to $19.18, its price before Microsoft made its bid public on February 1. But the descent was cushioned by investors who are betting Microsoft will eventually come back to the table.
"This is going to play out over the next several months and there is still a chance Microsoft will buy the company for somewhere around $33 a share," said Todd Dagres, general partner at venture capital fund Spark Capital.
Late Monday, Yahoo said it will hold its annual stockholder meeting on July 3.
A GOOGLE VICTORY?
Shares of Microsoft rose initially on Monday on investor relief that it was not paying billions more for Yahoo, though the stock ended down slightly amid concerns about how the software maker would develop its Web strategy in the face of a dominant Google Inc.
Microsoft courted Yahoo to capitalize on the rapidly growing market for Internet advertising, one that has long been served by Yahoo's search, e-mail and Web communities.
It is also trying to fend off the expansion of Google, which has made inroads into Microsoft's home turf with a portfolio of Web based-applications, e-mail and messaging.
But now that a deal has fallen apart, Google has emerged as the key beneficiary. Shares in the company rose 2.3 percent on Monday.
"Google has just kept their foot on the accelerator," said Derek Brown, analyst at Cantor Fitzgerald. "Neither Yahoo nor Microsoft in their current state seems to be a material competitive threat."
Yahoo is likely to press alternative strategies in coming weeks, including a search advertising partnership with Google and a deal for Time Warner Inc's AOL Internet unit.
A Google deal would boost Yahoo's operating performance in the near term, but runs the risk of regulatory scrutiny over an alliance between the Internet's top two players.
Google and Yahoo are hammering out the intricacies of a potential deal and also are sharing their plans with antitrust regulators, a person close to Google who was not authorized to speak publicly on the matter said.
In a letter to Yang over the weekend, Ballmer warned that any deal between Yahoo and Google would be difficult to unravel and would preclude an agreement with Microsoft.
Yang told Reuters the company would take care to structure any new efforts to "preserve as much (as possible) long-term flexibility for Yahoo, both operationally and strategically."
SHAREHOLDER PRESSURE
Analysts expect a flurry of shareholder lawsuits against Yahoo, and say it may even face direct pressure on its board.
Already, some Yahoo shareholders have started to question how talks were handled.
Bill Miller, a portfolio manager for Legg Mason, Yahoo's second-largest shareholder, told the New York Times in a Sunday interview that he would have considered selling to Microsoft for $34 or $35 a share.
While that was more than Microsoft's offer, it was less than the $37 per share Yahoo's board had insisted on.
Capital Research's Crawford also said investors generally were looking for Yahoo to sell at $34. He hoped shareholders pushed Yahoo to revisit the issue but was not optimistic, he told the newspaper. The company owns about 16 percent of Yahoo.
Yang said in a post on the company's blog on Sunday night: "No one is celebrating about the outcome of these past three months ... and no one should. We live and work in a competitive world and the Web is only going to get more competitive. Executing on our strategic plan is what matters most."
(Additional reporting by Tiffany Wu in New York, Muralikumar Anantharaman in Boston, Anupreeta Das in San Francisco and Peter Henderson in Los Angeles; Editing by Derek Caney, Braden Reddall, Richard Chang, Rory Channing)
NEW YORK (Reuters) - Yahoo Inc chief Jerry Yang was set to meet staff on Tuesday after signaling a more open stance towards a takeover by Microsoft Corp.
ADVERTISEMENT
Yang told Reuters in an interview on Monday that he had "mixed feelings" about events at the weekend, when talks broke down. Investors showed their disappointment over the breakup of negotiations by sending Yahoo shares down 15 percent on Monday.
Asked if Yahoo would still leave a door open for Microsoft to return, Yang said: "If they have anything new to say, we would be open. ... I am more than willing to listen."
Yang said it had been Microsoft that ended the discussions.
"We were negotiating a way to find common ground and then on Saturday they chose to walk away," said the 39-year-old co-founder of the pioneering Internet company. "They started it and they walked away."
Yang, who owns about 4 percent of the company, was expected to meet with employees on Tuesday in an effort to reassure them after the Microsoft talks ended.
Yahoo shares rose 4.7 percent in Frankfurt on Tuesday.
After three months of negotiations, Microsoft CEO Steve Ballmer raised his offer for Yahoo to $33 per share from an initial $31, for a total deal value of about $47.5 billion.
Yang held out for $37 per share, saying that even the sweetened offer did not value Yahoo properly for its Web search advertising technology, its prominence in selling display ads and its lucrative overseas holdings.
But its two largest shareholders independently told The New York Times they would have sold for as little as $34.
"I am extremely angry at Jerry Yang and at the so-called independent board," Gordon Crawford, portfolio manager for Capital Research Global Investors, the largest Yahoo shareholder with some 16 percent of stock, told the newspaper.
Some analysts said Yahoo shares, which dropped $4.30 to end at $24.37 on Monday, could have fallen 30 percent to closer to $19.18, its price before Microsoft made its bid public on February 1. But the descent was cushioned by investors who are betting Microsoft will eventually come back to the table.
"This is going to play out over the next several months and there is still a chance Microsoft will buy the company for somewhere around $33 a share," said Todd Dagres, general partner at venture capital fund Spark Capital.
Late Monday, Yahoo said it will hold its annual stockholder meeting on July 3.
A GOOGLE VICTORY?
Shares of Microsoft rose initially on Monday on investor relief that it was not paying billions more for Yahoo, though the stock ended down slightly amid concerns about how the software maker would develop its Web strategy in the face of a dominant Google Inc.
Microsoft courted Yahoo to capitalize on the rapidly growing market for Internet advertising, one that has long been served by Yahoo's search, e-mail and Web communities.
It is also trying to fend off the expansion of Google, which has made inroads into Microsoft's home turf with a portfolio of Web based-applications, e-mail and messaging.
But now that a deal has fallen apart, Google has emerged as the key beneficiary. Shares in the company rose 2.3 percent on Monday.
"Google has just kept their foot on the accelerator," said Derek Brown, analyst at Cantor Fitzgerald. "Neither Yahoo nor Microsoft in their current state seems to be a material competitive threat."
Yahoo is likely to press alternative strategies in coming weeks, including a search advertising partnership with Google and a deal for Time Warner Inc's AOL Internet unit.
A Google deal would boost Yahoo's operating performance in the near term, but runs the risk of regulatory scrutiny over an alliance between the Internet's top two players.
Google and Yahoo are hammering out the intricacies of a potential deal and also are sharing their plans with antitrust regulators, a person close to Google who was not authorized to speak publicly on the matter said.
In a letter to Yang over the weekend, Ballmer warned that any deal between Yahoo and Google would be difficult to unravel and would preclude an agreement with Microsoft.
Yang told Reuters the company would take care to structure any new efforts to "preserve as much (as possible) long-term flexibility for Yahoo, both operationally and strategically."
SHAREHOLDER PRESSURE
Analysts expect a flurry of shareholder lawsuits against Yahoo, and say it may even face direct pressure on its board.
Already, some Yahoo shareholders have started to question how talks were handled.
Bill Miller, a portfolio manager for Legg Mason, Yahoo's second-largest shareholder, told the New York Times in a Sunday interview that he would have considered selling to Microsoft for $34 or $35 a share.
While that was more than Microsoft's offer, it was less than the $37 per share Yahoo's board had insisted on.
Capital Research's Crawford also said investors generally were looking for Yahoo to sell at $34. He hoped shareholders pushed Yahoo to revisit the issue but was not optimistic, he told the newspaper. The company owns about 16 percent of Yahoo.
Yang said in a post on the company's blog on Sunday night: "No one is celebrating about the outcome of these past three months ... and no one should. We live and work in a competitive world and the Web is only going to get more competitive. Executing on our strategic plan is what matters most."
(Additional reporting by Tiffany Wu in New York, Muralikumar Anantharaman in Boston, Anupreeta Das in San Francisco and Peter Henderson in Los Angeles; Editing by Derek Caney, Braden Reddall, Richard Chang, Rory Channing)NEW YORK (Reuters) - Yahoo Inc chief Jerry Yang was set to meet staff on Tuesday after signaling a more open stance towards a takeover by Microsoft Corp.
ADVERTISEMENT
Yang told Reuters in an interview on Monday that he had "mixed feelings" about events at the weekend, when talks broke down. Investors showed their disappointment over the breakup of negotiations by sending Yahoo shares down 15 percent on Monday.
Asked if Yahoo would still leave a door open for Microsoft to return, Yang said: "If they have anything new to say, we would be open. ... I am more than willing to listen."
Yang said it had been Microsoft that ended the discussions.
"We were negotiating a way to find common ground and then on Saturday they chose to walk away," said the 39-year-old co-founder of the pioneering Internet company. "They started it and they walked away."
Yang, who owns about 4 percent of the company, was expected to meet with employees on Tuesday in an effort to reassure them after the Microsoft talks ended.
Yahoo shares rose 4.7 percent in Frankfurt on Tuesday.
After three months of negotiations, Microsoft CEO Steve Ballmer raised his offer for Yahoo to $33 per share from an initial $31, for a total deal value of about $47.5 billion.
Yang held out for $37 per share, saying that even the sweetened offer did not value Yahoo properly for its Web search advertising technology, its prominence in selling display ads and its lucrative overseas holdings.
But its two largest shareholders independently told The New York Times they would have sold for as little as $34.
"I am extremely angry at Jerry Yang and at the so-called independent board," Gordon Crawford, portfolio manager for Capital Research Global Investors, the largest Yahoo shareholder with some 16 percent of stock, told the newspaper.
Some analysts said Yahoo shares, which dropped $4.30 to end at $24.37 on Monday, could have fallen 30 percent to closer to $19.18, its price before Microsoft made its bid public on February 1. But the descent was cushioned by investors who are betting Microsoft will eventually come back to the table.
"This is going to play out over the next several months and there is still a chance Microsoft will buy the company for somewhere around $33 a share," said Todd Dagres, general partner at venture capital fund Spark Capital.
Late Monday, Yahoo said it will hold its annual stockholder meeting on July 3.
A GOOGLE VICTORY?
Shares of Microsoft rose initially on Monday on investor relief that it was not paying billions more for Yahoo, though the stock ended down slightly amid concerns about how the software maker would develop its Web strategy in the face of a dominant Google Inc.
Microsoft courted Yahoo to capitalize on the rapidly growing market for Internet advertising, one that has long been served by Yahoo's search, e-mail and Web communities.
It is also trying to fend off the expansion of Google, which has made inroads into Microsoft's home turf with a portfolio of Web based-applications, e-mail and messaging.
But now that a deal has fallen apart, Google has emerged as the key beneficiary. Shares in the company rose 2.3 percent on Monday.
"Google has just kept their foot on the accelerator," said Derek Brown, analyst at Cantor Fitzgerald. "Neither Yahoo nor Microsoft in their current state seems to be a material competitive threat."
Yahoo is likely to press alternative strategies in coming weeks, including a search advertising partnership with Google and a deal for Time Warner Inc's AOL Internet unit.
A Google deal would boost Yahoo's operating performance in the near term, but runs the risk of regulatory scrutiny over an alliance between the Internet's top two players.
Google and Yahoo are hammering out the intricacies of a potential deal and also are sharing their plans with antitrust regulators, a person close to Google who was not authorized to speak publicly on the matter said.
In a letter to Yang over the weekend, Ballmer warned that any deal between Yahoo and Google would be difficult to unravel and would preclude an agreement with Microsoft.
Yang told Reuters the company would take care to structure any new efforts to "preserve as much (as possible) long-term flexibility for Yahoo, both operationally and strategically."
SHAREHOLDER PRESSURE
Analysts expect a flurry of shareholder lawsuits against Yahoo, and say it may even face direct pressure on its board.
Already, some Yahoo shareholders have started to question how talks were handled.
Bill Miller, a portfolio manager for Legg Mason, Yahoo's second-largest shareholder, told the New York Times in a Sunday interview that he would have considered selling to Microsoft for $34 or $35 a share.
While that was more than Microsoft's offer, it was less than the $37 per share Yahoo's board had insisted on.
Capital Research's Crawford also said investors generally were looking for Yahoo to sell at $34. He hoped shareholders pushed Yahoo to revisit the issue but was not optimistic, he told the newspaper. The company owns about 16 percent of Yahoo.
Yang said in a post on the company's blog on Sunday night: "No one is celebrating about the outcome of these past three months ... and no one should. We live and work in a competitive world and the Web is only going to get more competitive. Executing on our strategic plan is what matters most."
(Additional reporting by Tiffany Wu in New York, Muralikumar Anantharaman in Boston, Anupreeta Das in San Francisco and Peter Henderson in Los Angeles; Editing by Derek Caney, Braden Reddall, Richard Chang, Rory Channing)NEW YORK (Reuters) - Yahoo Inc chief Jerry Yang was set to meet staff on Tuesday after signaling a more open stance towards a takeover by Microsoft Corp.
ADVERTISEMENT
Yang told Reuters in an interview on Monday that he had "mixed feelings" about events at the weekend, when talks broke down. Investors showed their disappointment over the breakup of negotiations by sending Yahoo shares down 15 percent on Monday.
Asked if Yahoo would still leave a door open for Microsoft to return, Yang said: "If they have anything new to say, we would be open. ... I am more than willing to listen."
Yang said it had been Microsoft that ended the discussions.
"We were negotiating a way to find common ground and then on Saturday they chose to walk away," said the 39-year-old co-founder of the pioneering Internet company. "They started it and they walked away."
Yang, who owns about 4 percent of the company, was expected to meet with employees on Tuesday in an effort to reassure them after the Microsoft talks ended.
Yahoo shares rose 4.7 percent in Frankfurt on Tuesday.
After three months of negotiations, Microsoft CEO Steve Ballmer raised his offer for Yahoo to $33 per share from an initial $31, for a total deal value of about $47.5 billion.
Yang held out for $37 per share, saying that even the sweetened offer did not value Yahoo properly for its Web search advertising technology, its prominence in selling display ads and its lucrative overseas holdings.
But its two largest shareholders independently told The New York Times they would have sold for as little as $34.
"I am extremely angry at Jerry Yang and at the so-called independent board," Gordon Crawford, portfolio manager for Capital Research Global Investors, the largest Yahoo shareholder with some 16 percent of stock, told the newspaper.
Some analysts said Yahoo shares, which dropped $4.30 to end at $24.37 on Monday, could have fallen 30 percent to closer to $19.18, its price before Microsoft made its bid public on February 1. But the descent was cushioned by investors who are betting Microsoft will eventually come back to the table.
"This is going to play out over the next several months and there is still a chance Microsoft will buy the company for somewhere around $33 a share," said Todd Dagres, general partner at venture capital fund Spark Capital.
Late Monday, Yahoo said it will hold its annual stockholder meeting on July 3.
A GOOGLE VICTORY?
Shares of Microsoft rose initially on Monday on investor relief that it was not paying billions more for Yahoo, though the stock ended down slightly amid concerns about how the software maker would develop its Web strategy in the face of a dominant Google Inc.
Microsoft courted Yahoo to capitalize on the rapidly growing market for Internet advertising, one that has long been served by Yahoo's search, e-mail and Web communities.
It is also trying to fend off the expansion of Google, which has made inroads into Microsoft's home turf with a portfolio of Web based-applications, e-mail and messaging.
But now that a deal has fallen apart, Google has emerged as the key beneficiary. Shares in the company rose 2.3 percent on Monday.
"Google has just kept their foot on the accelerator," said Derek Brown, analyst at Cantor Fitzgerald. "Neither Yahoo nor Microsoft in their current state seems to be a material competitive threat."
Yahoo is likely to press alternative strategies in coming weeks, including a search advertising partnership with Google and a deal for Time Warner Inc's AOL Internet unit.
A Google deal would boost Yahoo's operating performance in the near term, but runs the risk of regulatory scrutiny over an alliance between the Internet's top two players.
Google and Yahoo are hammering out the intricacies of a potential deal and also are sharing their plans with antitrust regulators, a person close to Google who was not authorized to speak publicly on the matter said.
In a letter to Yang over the weekend, Ballmer warned that any deal between Yahoo and Google would be difficult to unravel and would preclude an agreement with Microsoft.
Yang told Reuters the company would take care to structure any new efforts to "preserve as much (as possible) long-term flexibility for Yahoo, both operationally and strategically."
SHAREHOLDER PRESSURE
Analysts expect a flurry of shareholder lawsuits against Yahoo, and say it may even face direct pressure on its board.
Already, some Yahoo shareholders have started to question how talks were handled.
Bill Miller, a portfolio manager for Legg Mason, Yahoo's second-largest shareholder, told the New York Times in a Sunday interview that he would have considered selling to Microsoft for $34 or $35 a share.
While that was more than Microsoft's offer, it was less than the $37 per share Yahoo's board had insisted on.
Capital Research's Crawford also said investors generally were looking for Yahoo to sell at $34. He hoped shareholders pushed Yahoo to revisit the issue but was not optimistic, he told the newspaper. The company owns about 16 percent of Yahoo.
Yang said in a post on the company's blog on Sunday night: "No one is celebrating about the outcome of these past three months ... and no one should. We live and work in a competitive world and the Web is only going to get more competitive. Executing on our strategic plan is what matters most."
(Additional reporting by Tiffany Wu in New York, Muralikumar Anantharaman in Boston, Anupreeta Das in San Francisco and Peter Henderson in Los Angeles; Editing by Derek Caney, Braden Reddall, Richard Chang, Rory Channing)NEW YORK (Reuters) - Yahoo Inc chief Jerry Yang was set to meet staff on Tuesday after signaling a more open stance towards a takeover by Microsoft Corp.
ADVERTISEMENT
Yang told Reuters in an interview on Monday that he had "mixed feelings" about events at the weekend, when talks broke down. Investors showed their disappointment over the breakup of negotiations by sending Yahoo shares down 15 percent on Monday.
Asked if Yahoo would still leave a door open for Microsoft to return, Yang said: "If they have anything new to say, we would be open. ... I am more than willing to listen."
Yang said it had been Microsoft that ended the discussions.
"We were negotiating a way to find common ground and then on Saturday they chose to walk away," said the 39-year-old co-founder of the pioneering Internet company. "They started it and they walked away."
Yang, who owns about 4 percent of the company, was expected to meet with employees on Tuesday in an effort to reassure them after the Microsoft talks ended.
Yahoo shares rose 4.7 percent in Frankfurt on Tuesday.
After three months of negotiations, Microsoft CEO Steve Ballmer raised his offer for Yahoo to $33 per share from an initial $31, for a total deal value of about $47.5 billion.
Yang held out for $37 per share, saying that even the sweetened offer did not value Yahoo properly for its Web search advertising technology, its prominence in selling display ads and its lucrative overseas holdings.
But its two largest shareholders independently told The New York Times they would have sold for as little as $34.
"I am extremely angry at Jerry Yang and at the so-called independent board," Gordon Crawford, portfolio manager for Capital Research Global Investors, the largest Yahoo shareholder with some 16 percent of stock, told the newspaper.
Some analysts said Yahoo shares, which dropped $4.30 to end at $24.37 on Monday, could have fallen 30 percent to closer to $19.18, its price before Microsoft made its bid public on February 1. But the descent was cushioned by investors who are betting Microsoft will eventually come back to the table.
"This is going to play out over the next several months and there is still a chance Microsoft will buy the company for somewhere around $33 a share," said Todd Dagres, general partner at venture capital fund Spark Capital.
Late Monday, Yahoo said it will hold its annual stockholder meeting on July 3.
A GOOGLE VICTORY?
Shares of Microsoft rose initially on Monday on investor relief that it was not paying billions more for Yahoo, though the stock ended down slightly amid concerns about how the software maker would develop its Web strategy in the face of a dominant Google Inc.
Microsoft courted Yahoo to capitalize on the rapidly growing market for Internet advertising, one that has long been served by Yahoo's search, e-mail and Web communities.
It is also trying to fend off the expansion of Google, which has made inroads into Microsoft's home turf with a portfolio of Web based-applications, e-mail and messaging.
But now that a deal has fallen apart, Google has emerged as the key beneficiary. Shares in the company rose 2.3 percent on Monday.
"Google has just kept their foot on the accelerator," said Derek Brown, analyst at Cantor Fitzgerald. "Neither Yahoo nor Microsoft in their current state seems to be a material competitive threat."
Yahoo is likely to press alternative strategies in coming weeks, including a search advertising partnership with Google and a deal for Time Warner Inc's AOL Internet unit.
A Google deal would boost Yahoo's operating performance in the near term, but runs the risk of regulatory scrutiny over an alliance between the Internet's top two players.
Google and Yahoo are hammering out the intricacies of a potential deal and also are sharing their plans with antitrust regulators, a person close to Google who was not authorized to speak publicly on the matter said.
In a letter to Yang over the weekend, Ballmer warned that any deal between Yahoo and Google would be difficult to unravel and would preclude an agreement with Microsoft.
Yang told Reuters the company would take care to structure any new efforts to "preserve as much (as possible) long-term flexibility for Yahoo, both operationally and strategically."
SHAREHOLDER PRESSURE
Analysts expect a flurry of shareholder lawsuits against Yahoo, and say it may even face direct pressure on its board.
Already, some Yahoo shareholders have started to question how talks were handled.
Bill Miller, a portfolio manager for Legg Mason, Yahoo's second-largest shareholder, told the New York Times in a Sunday interview that he would have considered selling to Microsoft for $34 or $35 a share.
While that was more than Microsoft's offer, it was less than the $37 per share Yahoo's board had insisted on.
Capital Research's Crawford also said investors generally were looking for Yahoo to sell at $34. He hoped shareholders pushed Yahoo to revisit the issue but was not optimistic, he told the newspaper. The company owns about 16 percent of Yahoo.
Yang said in a post on the company's blog on Sunday night: "No one is celebrating about the outcome of these past three months ... and no one should. We live and work in a competitive world and the Web is only going to get more competitive. Executing on our strategic plan is what matters most."
(Additional reporting by Tiffany Wu in New York, Muralikumar Anantharaman in Boston, Anupreeta Das in San Francisco and Peter Henderson in Los Angeles; Editing by Derek Caney, Braden Reddall, Richard Chang, Rory Channing)NEW YORK (Reuters) - Yahoo Inc chief Jerry Yang was set to meet staff on Tuesday after signaling a more open stance towards a takeover by Microsoft Corp.
ADVERTISEMENT
Yang told Reuters in an interview on Monday that he had "mixed feelings" about events at the weekend, when talks broke down. Investors showed their disappointment over the breakup of negotiations by sending Yahoo shares down 15 percent on Monday.
Asked if Yahoo would still leave a door open for Microsoft to return, Yang said: "If they have anything new to say, we would be open. ... I am more than willing to listen."
Yang said it had been Microsoft that ended the discussions.
"We were negotiating a way to find common ground and then on Saturday they chose to walk away," said the 39-year-old co-founder of the pioneering Internet company. "They started it and they walked away."
Yang, who owns about 4 percent of the company, was expected to meet with employees on Tuesday in an effort to reassure them after the Microsoft talks ended.
Yahoo shares rose 4.7 percent in Frankfurt on Tuesday.
After three months of negotiations, Microsoft CEO Steve Ballmer raised his offer for Yahoo to $33 per share from an initial $31, for a total deal value of about $47.5 billion.
Yang held out for $37 per share, saying that even the sweetened offer did not value Yahoo properly for its Web search advertising technology, its prominence in selling display ads and its lucrative overseas holdings.
But its two largest shareholders independently told The New York Times they would have sold for as little as $34.
"I am extremely angry at Jerry Yang and at the so-called independent board," Gordon Crawford, portfolio manager for Capital Research Global Investors, the largest Yahoo shareholder with some 16 percent of stock, told the newspaper.
Some analysts said Yahoo shares, which dropped $4.30 to end at $24.37 on Monday, could have fallen 30 percent to closer to $19.18, its price before Microsoft made its bid public on February 1. But the descent was cushioned by investors who are betting Microsoft will eventually come back to the table.
"This is going to play out over the next several months and there is still a chance Microsoft will buy the company for somewhere around $33 a share," said Todd Dagres, general partner at venture capital fund Spark Capital.
Late Monday, Yahoo said it will hold its annual stockholder meeting on July 3.
A GOOGLE VICTORY?
Shares of Microsoft rose initially on Monday on investor relief that it was not paying billions more for Yahoo, though the stock ended down slightly amid concerns about how the software maker would develop its Web strategy in the face of a dominant Google Inc.
Microsoft courted Yahoo to capitalize on the rapidly growing market for Internet advertising, one that has long been served by Yahoo's search, e-mail and Web communities.
It is also trying to fend off the expansion of Google, which has made inroads into Microsoft's home turf with a portfolio of Web based-applications, e-mail and messaging.
But now that a deal has fallen apart, Google has emerged as the key beneficiary. Shares in the company rose 2.3 percent on Monday.
"Google has just kept their foot on the accelerator," said Derek Brown, analyst at Cantor Fitzgerald. "Neither Yahoo nor Microsoft in their current state seems to be a material competitive threat."
Yahoo is likely to press alternative strategies in coming weeks, including a search advertising partnership with Google and a deal for Time Warner Inc's AOL Internet unit.
A Google deal would boost Yahoo's operating performance in the near term, but runs the risk of regulatory scrutiny over an alliance between the Internet's top two players.
Google and Yahoo are hammering out the intricacies of a potential deal and also are sharing their plans with antitrust regulators, a person close to Google who was not authorized to speak publicly on the matter said.
In a letter to Yang over the weekend, Ballmer warned that any deal between Yahoo and Google would be difficult to unravel and would preclude an agreement with Microsoft.
Yang told Reuters the company would take care to structure any new efforts to "preserve as much (as possible) long-term flexibility for Yahoo, both operationally and strategically."
SHAREHOLDER PRESSURE
Analysts expect a flurry of shareholder lawsuits against Yahoo, and say it may even face direct pressure on its board.
Already, some Yahoo shareholders have started to question how talks were handled.
Bill Miller, a portfolio manager for Legg Mason, Yahoo's second-largest shareholder, told the New York Times in a Sunday interview that he would have considered selling to Microsoft for $34 or $35 a share.
While that was more than Microsoft's offer, it was less than the $37 per share Yahoo's board had insisted on.
Capital Research's Crawford also said investors generally were looking for Yahoo to sell at $34. He hoped shareholders pushed Yahoo to revisit the issue but was not optimistic, he told the newspaper. The company owns about 16 percent of Yahoo.
Yang said in a post on the company's blog on Sunday night: "No one is celebrating about the outcome of these past three months ... and no one should. We live and work in a competitive world and the Web is only going to get more competitive. Executing on our strategic plan is what matters most."
(Additional reporting by Tiffany Wu in New York, Muralikumar Anantharaman in Boston, Anupreeta Das in San Francisco and Peter Henderson in Los Angeles; Editing by Derek Caney, Braden Reddall, Richard Chang, Rory Channing)
Is this a photo of a father/daughter dance?
Preliminarily, we should note that, although it is not clear whether the analysis
articulated and applied in discussing the Article II, Section 8 challenge in Consumer Party
was intended as dicta, general guidance, or an alternative holding, we would not seek to
distinguish or narrow it on grounds that it lacked precedential value. The Court saw fit to
discuss the constitutional issue, without objection from any participating Justice; the
discussion was offered as an explanation of why “[n]o purpose would be served” in
permitting amendment of the complaint to add the waived argument; the issue thus
discussed was an important one obviously capable of recurrence; and it has been relied
upon. Thus, we shall consider the case square-on.
Consumer Party assumed an appropriate deference to the judgment of the General
Assembly with respect to mid-term increases in expense allowances, in part because of the
salutary presumption of constitutionality, and in part because the Court perceived the
legitimate role that unvouchered expenses play where they bear a reasonable relationship
to actual expenses. Indeed, the Court addressed at length the putative advantages in not
requiring a dollar-for-dollar accounting of expenses. The Court’s analysis, however, did not
purport to approve of any and all systems covering mid-term unvouchered expenses. To
the contrary, the Court made clear that such expenses must bear a “reasonable
relationship” to actual expenses. We see no constitutional infirmity in this general standard
as adopted in Consumer Party. Expenses are different from salary. There is, of course,
much to be said for transparency in government, particularly when it comes to
expenditures, and specific accounting procedures promote that transparency even if such a
system requires an expenditure of time and money for accounting purposes. But, absent
constitutional infirmity, it is not this Court’s role to dictate to a coordinate, coequal branch of
government how best to approach the task of accounting for legitimate expenses. Thus,
[J-36A-C-2006] - 76
we continue to believe that, as a general matter, unvouchered expense allowances are not
per se unconstitutional. Accordingly, we reaffirm the core reasonable relationship standard
which was adopted in Consumer Party.35
Having said this, however, we have no difficulty in finding that the unvouchered
expense allowance provided for in Act 44 is constitutionally infirm as it does not bear a
reasonable relationship to the actual expenses incurred by individual legislators. To better
frame the inquiry, we begin by emphasizing what the Court in Consumer Party did not say.
In point of fact, the amount of the unvouchered expense allowance at issue in Consumer
35 Our reaffirmation of Consumer Party’s recognition that mid-term unvouchered expenses
are not per se unconstitutional, and the reasonable relationship standard as the
constitutional measure of such legislation, is not an endorsement of the Court’s application
of the test in that case. Mr. Justice Saylor’s Concurring and Dissenting Opinion -- which
emphasizes the sheer amount of the unvouchered allocation at issue in Consumer Party
and the Court’s lack of concern with whether the allotments were reported as income or
expenses on federal tax returns -- ably outlines the strong argument that could be made
that the Consumer Party Court’s application of the test it announced was excessively
deferential, perhaps even implausible under the circumstances. We could add, to the
points offered by Justice Saylor, the circumstance that the unvouchered expenses expired
once the legislative salary increases took effect. As we explain below, however, the
circumstances in this case are not at all the same as in Consumer Party, and thus, to
discharge our duty in the case sub judice it is not necessary to speculate as to whether we
would approve the mid-term unvouchered expense legislation at issue in Consumer Party,
if faced with it again.
Perhaps more importantly, it is also worth noting in any digression into whether
Consumer Party was rightly decided that the propriety of a former decision is difficult to
measure in absolute terms, and the effects of hindsight must be considered. As a matter of
law, the Consumer Party Court rejected only the constitutional challenge and argument it
identified as having been presented to it; no case purports to reject all possible arguments.
In assessing the persuasiveness of a prior decision, a later court necessarily is confined to
the arguments and discussion which are identified in the decision. Thus, the excessive
deference now apparent in Consumer Party may well reflect the narrowness or insufficiency
of the argumentation forwarded in the case, or it could represent the Court’s failure to
address or appreciate all arguments forwarded.
[J-36A-C-2006] - 77
Party was not the same as the future legislative salary increase provided in that legislation
(the salary increase was $10,000, while the unvouchered expense allowance was half that
amount). More importantly, this Court never held, stated, or implied that any particular
amount authorized for mid-term unvouchered expenses was constitutionally valid under the
reasonable relationship standard and Article II, Section 8 of the Pennsylvania Constitution.
Equally as important, and contrary to the present argument of the Speaker, this Court
certainly did not hold, state or imply that mid-term unvouchered expense allowances for the
Legislature comply with Article II, Section 8 so long as they are in the same amount as a
future salary increase included in the same legislation. Thus, when the Speaker asks for a
“dependable” Article II, Section 8 ruling on “the continued constitutionality of those
unvouchered expense allocations in the amount of the future pay raise,” Speaker
Perzel’s Brief at 26 (emphasis added), he has misperceived the inquiry. Consumer Party
never said or suggested that such a system was constitutionally valid.
Senator Jubelirer, in his summary of Consumer Party, notes the reasonable
relationship test stated therein, but he never argues that such a relationship exists with
respect to Act 44. Speaker Perzel, on the other hand, never acknowledges this standard
set forth in Consumer Party, instead focusing upon the facts alone, and suggesting
incorrectly that the case thereby stands for the proposition that mid-term unvouchered
expenses are constitutional under Article II, Section 8 so long as they are in the same
amount as the future legislative salary increase provided in the legislation. Because the
legislative leaders overlook or misconstrue the actual holding of Consumer Party, they
provide no relevant rebuttal to Stilp’s claim.36
36 It appears that in both Kennedy and Stilp, unlike in Consumer Party, the unvouchered
expenses authorized were in the same amount as the future legislative salary increase.
This Court, however, was not asked to review either case and those intermediate appellate
decisions do not bind us. In any event, neither Kennedy nor Stilp held that dollar-for-dollar
(continued…)
[J-36A-C-2006] - 78
This Court recognizes that, as the challenger of presumptively constitutional
legislation, Stilp properly bears the burden of proof here. Consumer Party, 507 A.2d at
337. However, it is notable that the legislative parties do not dispute his claim that the
unvouchered expenses authorized by Act 44 are not reasonably related to the actual, and
otherwise-unreimbursed, expenses incurred by legislators in the discharge of their public
duties. Moreover, if the unvouchered expense allowance could plausibly be explained as
intended to cover actual expenses, rather than to serve as additional salary, we have no
doubt that this proposition would be an easy matter for the legislative parties to
demonstrate. And, as the parties uniquely in a position to provide such proof, the failure to
so argue, or to forward such a proffer, is significant notwithstanding Stilp’s ultimate burden.
Also, with respect to Stilp’s burden of proof, we are presented with arguments that were not
forwarded or discussed in Consumer Party, including Stilp’s focus on the fact that the
staggered timing of the expiration of the unvouchered expenses prove they serve as
additional salary. Stilp also properly relies on the fact, which was not available to the
challengers in Consumer Party, of intervening legislation, such as was at issue in Kennedy
and Stilp, which tied the amount of mid-term provisions for unvouchered expenses
precisely to the amount provided as a future increase in legislative compensation, and
provided that the unvouchered expenses would expire once the new salaries took effect.
The practice has become so fixed, indeed, that the Speaker, in this case, has misread
Consumer Party itself as approving any amount of mid-term unvouchered expense
(…continued)
equivalence per se established a reasonable relationship between the unvouchered
expense allowance and actual expenses.
[J-36A-C-2006] - 79
allowance so long as the amount is the same as the future increase in salary, even though
the case said no such thing, and the facts could not have supported such a holding.37
In any event, any claim of a congruence between actual unreimbursed expenses
incurred by legislators and the unvouchered allowances provided under Act 44 to defray
those expenses would challenge belief, and particularly with respect to the unvouchered
expense allowances made available to legislative leaders. The $11,000 provided the rankand-
file was on top of, and well in excess of, the $7,500 already provided for vouchered
expenses, and indeed represented approximately 16% of their then-authorized salaries.
The amount of unvouchered expenses provided legislative leaders (the Speaker and
Senate President pro tempore, and the majority and minority leaders), meanwhile, was well
in excess of $30,000 (three times the unvouchered expenses provided to the rank-and-file),
and represented over 30% of their existing salaries.
In light of Stilp’s unrebutted argument, appellees’ silence on Consumer Party’s
reasonable relationship test, the reference to the new salary formula to compute the midterm
unvouchered expense allowance, the dollar-for-dollar congruence between the
unvouchered expense allowance and the new salary formula, the fact that the expense
allotment expires once the new salary takes effect, and the sheer amount of the authorized
allowance, we hold that Stilp has carried his burden of proving that the legislative
unvouchered expense allowance provided in Act 44, § 2 (amending 46 Pa.C.S. § 1107), in
fact represented a mid-term increase in legislative salary which clearly, palpably, and
plainly violated the proscription in Article II, Section 8 of the Pennsylvania Constitution.
37 We should note that we obviously disagree, respectfully, with Mr. Justice Saylor’s
characterization of the legislative allotments at issue in Kennedy and Stilp as taking
Consumer Party to its “logical extreme.” As we have explained in text, the position of the
legislative leaders respecting what Consumer Party approved is premised upon a
misreading of the case.
[J-36A-C-2006] - 80
Accordingly, we will grant the relief requested by Stilp, in part, and declare Section 2 of Act
44 amending 46 Pa.C.S. § 1107 unconstitutional.
F. Nonseverability Provision
- 1 -
The final interpretive issue, arising by virtue of our finding above that the
unvouchered expense allowance in Act 44 is unconstitutional, is the legal effect of the
nonseverability provision included in the Act. That the Act contains a nonseverability
provision is remarkable in and of itself, because the general rule set forth in Section 1925
(“Constitutional construction of statutes”) of the Statutory Construction Act, 1 Pa.C.S. §
1501 et seq., establishes a presumption of severability:
The provisions of every statute shall be severable. If any provision of any
statute or the application thereof to any person or circumstance is held
invalid, the remainder of the statute, and the application of such provision to
other persons or circumstances, shall not be affected thereby, unless the
court finds that the valid provisions of the statute are so essentially and
inseparably connected with, and so depend upon, the void provision or
application, that it cannot be presumed the General Assembly would have
enacted the remaining valid provisions without the void one; or unless the
court finds that the remaining valid provisions, standing alone, are incomplete
and are incapable of being executed in accordance with the legislative intent.
1 Pa.C.S. § 1925. This Court has deemed the presumption in Section 1925 so
fundamental to our task, when confronted with a finding that a provision of a statute is
invalid, that we have invoked Section 1925 even where the parties failed to argue
severability. See, e.g., Mockaitis, 834 A.2d at 502. In addition to applying to “every”
statute and employing mandatory terms, Section 1925 is notable because it is not merely
boilerplate. Thus, Section 1925 does not mandate severance in all instances, but only in
those circumstances where a statute can stand alone absent the invalid provision. Section
1925 sets forth a specific, cogent standard, one which both emphasizes the logical and
[J-36A-C-2006] - 81
essential interrelationship of the void and valid provisions, and also recognizes the
essential role of the Judiciary in undertaking the required analysis.
Though now embodied in a legislative command, the principle of severability, and
the standard by which severability is measured, has its roots in the common law. For
example, in Rothermel v. Meyerle, 20 A. 583 (Pa. 1890), this Court stated the following
standard:
A statute may be void only so far as its provisions are repugnant to the
constitution. One provision may be void, and this will not affect other
provisions of the statute. If the part which is unconstitutional in its operation,
is independent of, and readily separable from, that which is constitutional, so
that the latter may stand by itself, as the reasonable and proper expression of
the legislative rule, it may be sustained as such; but, if the part which is void
is vital to the whole, or the other provisions are so dependent upon it, and so
connected with it, that it may be presumed the legislature would not have
passed one without the other, the whole statute is void.
Id. at 587-88. The standard now contained in Section 1925 merely codified this settled
decisional law.
The practice of severing and striking only the unconstitutional provision of a larger
legislative enactment, in instances where the legislation is otherwise self-sustaining and
valid, has its origins in principles of jurisprudential restraint. See generally John Copeland
Nagle, Severability, 72 N.C. L. REV. 203, 212-18 (1993); accord Fred Kameny, Are
Inseverability Clauses Constitutional?, 68 ALB. L. REV. 997, 1002 (2005). The development
of the doctrine has been described as follows:
The Champlin[38] test has its origins in Chief Justice Lemuel Shaw's
1854 opinion for the Supreme Judicial Court of Massachusetts in Warren v.
38 Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559,
564-65 (1932), overruled by Phillips Petroleum Co. v. Okla., 340 U.S. 190, 71 S.Ct. 221
(1950). Under Champlin, the severability of a statute depends upon two factors: legislative
intent, and whether the statute can function without the offending provision. This Court has
(continued…)
[J-36A-C-2006] - 82
Mayor & Aldermen of Charlestown, [68 Mass. 84, 2 Gray 84 (1854),] the first
case holding that an unconstitutional statutory provision rendered an entire
statute invalid. Prior to Warren, the severability of statutory provisions was
usually assumed. In the earliest cases questioning the constitutionality of a
federal statute, the United States Supreme Court gave no indication that the
unconstitutionality of one provision--or its application--would render an entire
statute invalid. In Marbury v. Madison, [5 U.S. 137, 1 Cranch 137 (1803),] for
example, the unconstitutionality of section 13 of the Judiciary Act of 1789 did
not render the entire Act invalid. As Chief Justice Marshall later wrote, "If any
part of the act be unconstitutional, the provisions of that part may be
disregarded while full effect will be given to such as are not repugnant to the
constitution of the United States . . . . "[39] As a result of this lack of guidance,
some courts invalidated statutes "so far as" they were unconstitutional, while
a few courts suggested that severability depended
I wonder if Mr. NEPAMedia will come out of the woodwork once his paper, The Scranton Post, debuts in June.
Must...not...visualize...honeymoon...activities...Unable to avert eyes...GAHHHHHHHHHHHH
wouldya believe.... Mr NEPAMedia and Frank Andrews are one in the same. the same person I tell ya! Mr. and Mrs. Shimkus are on thier honeymoon right? The last post was about the impending wedding, it all makes sense.
Chief, lower the cone of silence!
So why is Gabrielle Prutisto fooling around with Gene Padden?
Speaking of which, I imagine his training will be complete soon and once he gets into the Naval Intelligence service how soon before things start lookin' up for the good ol' U.S. of A. do ya think?
http://www.ecweekend.com/columns/story.asp?id=46904
Alas, poor NEPA media news and gossip...I knew him Horatio.
Another decent info-wise web site killed by the dickheads....
They killed all the decent newspapers so a website like this should've been child's play. And evidently it was
It's too bad this blog is dead. Can we move this party to a different site?
yeah, Healey's pants
Hey everyone. Just found this site. Looks pretty cool.
Hey, i just found a blog spot in the back of my underpants
Times-Shamrock buys Virgin Islands Daily News On May 14 Times-Shamrock Communications announced an agreement in principle to acquire the Virgin Islands Daily News, an 8,500-circulation daily newspaper covering the U.S. Virgin Islands and portions of the British Virgin Islands.
The newspaper, which is based on the Caribbean island of St. Thomas, a major cruise-ship destination, becomes Times-Shamrock's eighth daily newspaper.
http://www.headlinesanddeadlines.org/2008/May_15_08/times-shamrock.htm
Yeah, yeah.
Anybody got an ear to the ground regarding the rumor that TS bigwigs just got off the plane from St. Thomas where they're looking to buy a paper? Talk about a tax-deductible business trip when Times/Shamrock:The Next Generation steps up in January!
3:29 PM, April 15, 2008
OH....GOD MAKE IT STOP!
Oh the irony. Asking God to put a stop to a Frank Andrews thread
when did howard beale take over this site?
Padden's an asshat.
That's Ensign Asshat to you!
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