*1 compensation benefits award- workers’ BERGDOLL, Gerald C. G. John Instead, not of for some reason
ed. R. and Matthew Grimaud record, for, and re- applied Ferrero Battersby, Petitioners ceived, compensation unemployment during period same for benefits totally he
which he now asserts was Pennsylvania, COMMONWEALTH perform his disabled and unable to even Cortes, Secretary Pedro A. Honorable The 1996 amendment light-duty work. Commonwealth, Pennsylvania 204(a) of Act aimed at to Section was Assembly, Mike Honorable this of double recov- preventing just sort General, Respon- Fisher, ery. dents. (footnote omitted). Id. at 1279 Pennsylvania. Commonwealth Court directly in this case is The situation 3, 2004. Argued March Here, one in analogous Ferrero. Sept. Decided which Claimant re severance benefits gross ceived was the amount. As with benefits,
unemployment compensation Sec 204(a) Act provision
tion makes no amount of sever the offset of net Rather, it
ance benefits received.
provides for an offset for amount re Claimant,
ceived and he received the Therefore,
gross pursuant amount. 204(a)
plain language of Section and Ferre
ro, Employer correctly took an offset for amount of benefits gross severance such,
received Claimant. As the Board
did by affirming not err the decision
WCJ.
Accordingly, the of the Board is order
affirmed.
ORDER NOW, the or- September
AND Appeal Compensation
der of the Workers’ dated
Board docketed A03-2299 and hereby AFFIRMED.
March
See also Pa. A.2d *5 Grimaud, Tunkhannock, John
Gerald C. York, and R. Bat Bergdoll, G. Matthew Fairfield, petitioners. tersby, for Jr., Philadelphia, for Hodgson, C. Clark Assembly of the The Genеral respondent, Comm, of PA. Koons, Harrisburg, re- R. for
Calvin Comm, General, spondents, Attorney Secretary of the Commonwealth. PA and COLINS, Judge, President BEFORE: SMITH-RIBNER, Judge, PELLEGRINI, Judge, and LEADBETTER, Judge and COHN JUBELIRER, Judge. Judge BY LEADBETTER.
OPINION C. Grimaud Bergdoll, G. Gerald John all Battersby (petitioners), R. and Matthew attorneys practicing residents for present petition Pennsylvania, filed They jurisdiction. original in our review voiding amendments a declaration seek (Face I, Face Amend- Section ment) 10(c) (Judicial V, favor, and, and Article Section obtaining witnesses his Amendment) Administration by prosecutions Penn- indictment or informa- sylvania tion, passed by a speedy public trial an impar- electorate at the November jury vicinage; Munic- tial he cannot be ipal Assembly Election. The General compelled give against filed him- evidence objections self, life, preliminary challenging jus- deprived nor can he be his merit, ticiability and liberty property judg- substantive unless separate claims. filing, Attorney peers ment of his or the law the land. and the of the Common- a suppressed voluntary use of ad- single wealth also filed a preliminary voluntary ob- mission or confession to im- jection generally demurring. In denying peach credibility person may of a petitioners’ request permitted October of 2003 and shall not be construed preliminary injunction against compelling person give count- evidence on ing questions votes the ballot sub- himself. electorate,
mitted to the Judge Pellegrini, (Underlined inserted; language bracketed in his supporting opinion, well-described deleted). language Accompanying the bal- facts as follows. lot was requisite “Plain En- By 2003-1, Joint Resolutions 2002-1 and glish Statement of (Face Pennsylvania” the General directed Secre- Plain to Face State- ment). tary to submit two ballot questions That statement reads: Pennsylvania’s qualified electors the No- *6 to question proposes This ballot Municipal seeking vember Election provision Pennsylvania amend of the the provisions to -amend of Pennsylva- two the gives persons Constitution that accused nia Constitution. Both the House and the right of crime the to the “meet wit- amendment, approve Senate voted to each to nesses face face.” The States United XI, required by аnd as Article the gives person Constitution an the accused Secretary published the same in two news- right to “be confronted with the wit- papers county. of each against nesses him.” This ques- ballot tion language would make the question,
The first ballot which relates Pennsylvania Constitution the same as rights of the accused criminal language of the United States Con- I, § prosecutions 9 of the .under (Face stitution. Constitution, Pennsylvania to Face Amendment) reads, Pennsylva- “Shall the Pennsylvania Supreme The Court has provide nia Constitution be amended to permitting ruled that laws children to person accused of a crime has the testify in proceedings criminal outside right to be ‘confronted with the witnesses accused, physical presence him,’ against of to right instead ‘meet videotaped means deposition such face’?” proposed, the witnesses face to As television, closed-circuit violate provision provide would as follows: Pennsylvania they Constitution because deny In all criminal prosecutions persons the accused to right accused con- hath a to right against be heard himself and front the to witnesses them “face counsel, contrast, his to demand the nature and face.” In the United States him, to against Supreme upheld cause of the accusation such Court has laws Constitution, [meet face] the witnesses face to under the United' States against guarantees confronted with the persons witnesses accused him, to have compulsory process right against for to confront the witnesses or-
them, right serving enforcing or necessarily process to officers but ders, any decrees of court judgments to face.” or confront witnesses “face including of justice peace, or question of is The this ballot assignment and power provide to Pennsylvania to from the Con- remove of or of classes actions reassignment right persons stitution the of accused to among several appeals of classes against confront the witnesses them justice of re- as the needs shall courts face,” Pennsylvania to “face so that the bar and quire, and for admission Assembly may enact laws or the law, the administration practice Pennsylvania adopt Court offi- supervision of courts and of all all permit testify rules that children to branch, if rules judicial such cers of the physi- criminal proceedings outside consistent with this Constitution are presence cal the accused. modify the abridge, enlarge nor neither Pennsylvania The Constitution would rights any litigant, nor substantive guarantee persons continue to accused Assembly right the General affect right the witnesses confront any jurisdiction determine the against question them. This ballot justice peace, nor sus- court or limited in that it from the would remove pend of limitation any nor alter statute Pennsylvania right suspended All shall be repose. laws face.” confront witnesses “face to they are inconsistent the extent that effect this ballot prescribed provi- under with rules these Pennsylva- would be to remove from the Notwithstanding provisions sions. nia right Constitution the accused section, of this the General persons to confront the witnesses may by provide for manner statute “face to and to them face” make testimony child of child victims or language Con- in criminal material witnesses persons stitution accused guaranteeing ceedings, including the video- use of right confront witnesses *7 taped deposition testimony by or against them the the language same as television. closed-circuit of the United States Constitution. (Underlined inserted). ac- text Also to be The question, second ballot which re- question this was companying ballot judicial lates to under Ar- administration Attorney English Statement of the “Plain 10(c) V, § Pennsylvania ticle of the Con- (Judicial Pennsylvania” Admin- General (Judicial stitution, Administration Statement). state- istration Plain That Amendment) reads, Pennsyl- “Shall ment reads: pro- vania Constitution be amended to question proposes ballot This Assembly that may vide the General en- Pennsylvania Constitution amend regarding act laws the manner Pennsylvania Assembly give the General may testify proceed- children in criminal regarding the authority to enact laws videotaped ings, including the use of de- testify may in criminal way that children testimony by or closed-circuit positions of video- proceedings, including use provision that proposed, television?” As testimony closed- deposition or taped provide would as follows: circuit television. (c) The shall have the Supreme Court Pennsylvania gives govern- general rules The power prescribe Court, and Pennsylvania Supreme the conduct ing practice, procedure and Court, courts, Pennsylvania justices peace all and all authority governing prac- Question to make rules to Face Ballot fails to accurate- procedure tice and the Pennsylvania ly purpose, inform of its voters limita- Pennsylvania Supreme courts. The tions, and effects. Court has ruled that General Assem- Count 3: General’s Plain En- bly regarding cannot enact way laws glish Statement accompanying the Judi- testify may children criminal cial Question Administration Ballot fails ceedings Pennsylvania in the courts. accurately pur- inform voters of its purpose question The of this ballot is limitations, pose, and effects. give Assembly the General authority Question Count 4: The Ballot combines to make regarding way laws two or more amendments as to the Judi- may testify proceed- children in criminal cial Administration Amendment in viola-
ings, including
of videotaped
the use
de-
XI, §
tion
Pennsylva-
of Article
positions
closed-circuit
televisions.
nia Constitution.
permitting
The
children to
Question
Count 5:
Ballot
The
combines
testify by such
is
means
to allow them to
two or more amendments as to the Face
testify
physical presence
outside the
to Face
Amendment
violation of Arti-
the accused.
XI,
Pennsylvania
cle
1 of the
Constitu-
This ballot
question
limited in that
tion.
it would
change
authority
make
regard-
laws
Count 6:
are multiple proposed
There
ing practice
procedure
the Penn-
amendments in Judicial Administration
sylvania
than
give
courts other
XI,
Question
Ballot
in violation of Article
Assembly authority
to make
§ 1
Pennsylvania
Constitution:.
regarding
way
laws
that children
Count
multiple
7: There are
proposed
may testify in
proceedings.
criminal
amendments in the Face to Face Ballot
effect of this ballot
Question
XI, §
violation Article
1 of
be to
would
enable the General Assem-
Constitution.
bly to make
regarding
way
laws
Count 8: The Judicial Administration
children
in criminal
testify
proceed-
Question
judicial
Ballot
violates
indepen-
ings.
dence
sеparation
powers.
15, 2003, petitioners
On October
filed a
publication
Count 9: The
of the Ballot
jurisdic-
original
Petition
Review in our
Questions
amendments
proposed
alleging
tion1
violations
State law
*8
XI,
were
in
untimely
violation of Article
2
and violations of federal law. The State
§ 1
Pennsylvania
Constitution.
violations,
summary,
law
in
are:
I, §
Count 10:
25
Article
forbids
Composition
1:
Count
the Ballot
amending
to
provision,
the Face
Face
Question is unconstitutional because the
because
provision
such
“remains invio-
Assembly
ques-
General
must draft the
late.”
tion, not
Secretary.
Attorney
2:
Plain En-
yeas
nays
Count
General’s
Count 11: The
were not
glish
accompanying
Statement
in
appropriately
the Face
counted
violation of Ar-
761(a)
Code,
ceptions
applicable
1. Section
42
Judicial
Pa.
here. The exclusive
761(a),
gives
original juris-
procedure
commencing
by
court
C.S.
this
such actions is
proceedings
pursuant
"petition
Chapter
diction of all civil actions or
for review”
to
government,
Pennsylvania
Appellate
Commonwealth
in-
Rules of
Proce-
thereof,
cluding any officer
with certain ex-
dure.
to this Constitution
XI,
Pennsylvania
§ 1 of
Consti-
Amendments
tide
or
proposed in
House
be
Senate
tution.
if the
shall
Representatives;
same
are
follows:
The federal law violations
as
agreed
by majority
to
a
of the mem-
be
1: The
to Face amendment
Count
Face
House,
pro-
to each
such
bers elected
person’s
an
federal
violates
accused
or amendments shall
posed amendment
rights
guaranteed under
14th
as
journals
their
with the
entered on
be
to the
States Con-
Amendment
United
thereon,
taken
and the
yeas
nays
stitution
shall
Secretary of the Commonwealth
proposed
Count 2 The
amendments vio-
published
cause
same
be
three
guarantee
government
late the
that our
election,
general
months
the next
before
government.
a
form of
republican
be
every
in
newspapers
in
least
two
county
newspapers
such
shall
Based
these
defects in enact-
alleged
on
if,
published; and
in the General
be
ment
conflicts
exist-
and substantive
with
chosen,
Assembly next afterwards
such
ing
provisions, petitioners
constitutional
amendment or amendments
proposed
ask us
declare
Amendments void.
majority
agreed
be
a
shall
Secretary
of the Common
House,
each
members elected to
General filed a
wealth and
of the Commonwealth shall
preliminary objection in
nature
single
again
published
cause
to be
the same
general
of a
to all Counts. The
demurrer
aforesaid;
and such
the manner
Assembly
preliminary
four
filed
shall
posed amendment or amendments
objections
specifying
asserting, without
electors of
qualified
be submitted
(1)
Counts,
non-justi
are
claims:
manner,
in such
and at such
the State
procedures;
ciable
on legislative
attacks
being
time at
three months after
least
(2) fail
state a
flaw
the General
Houses,
agreed
so
two
(S)
Assembly’s procedures;
fail to aver
and,
prescribe;
shall
existing provi
substantive conflict with
if
or amendments shall
such amendment
(4)
Constitution; and,
ei
sions in the
are
by a
vot-
approved
majority
those
ther
for failure to raise them
waived
thereon,
or
ing
such amendment
I),
Bergdoll
(Bergdoll
v. Kane
Pa.
part
amendments shall become
(1999),
Grant, 602, 433, 611, 529 Pa. 606 parties A.2d 436 action were in the first action. (1992)].Also, Moreover, our Court has made the multiple amendment asser- analytical action, clear that tion in deciding present the model for the pressed rather challenge being to the than at odds the enactment of constitu- with assertions in I, Bergdoll expands upon argument tional amendments is not on the the based single that a ballot is improper substantial afforded adop- deference to the argues that legislation. reason, proposed tion of amendments Id. For this must submitted to the there is electorate in no merit Assem- General questions. more than two ballot bly’s For these preliminary objection, first asserting reasons, judicial estoppel waiver and are generally non-justiciability of the chal- inapplicable and Assembly’s the General lenge to procedural com- legislatures’ preliminary fourth objection is overruled. pliance with Article XI. The As- Accordingly, respondents’ we turn to de- sembly’s is, preliminary objection first murrer. therefore, overruled.2 Questions Drafting the Ballot Estoppel
Waiver/Judicial I, that, petitioners Count assert objec fourth preliminary its pursuant the amendment procedure tion, Assembly the General contends that prescribed XI, of the Consti petitioners’ judi or claims are waived tution, only Assembly, the General cially estopped. Neither assertion has Secretary General, is au waiver, merit. respect With we note Questions. thorized draft Ballot the present action is on an based Therefore, inasmuch there is no dispute as entirely attempt different to amend the Assembly the General did not draft Therefore, prin Constitution. the general Questions, petitioners contend that the ciple that arising claims from the same proposed submission amendments joined transaction or occurrence must be fatally the electorate was flawed. This or, not, waived, if are has application. no contention is without merit. respect judicial estoppel, With we note that, “as a general proposition, a party Section of Article XI directs an action estopped assuming from Assembly prescribe shall man- position with inconsistent his assertion ner in which proposed amendments action, previous if his suc assertion was are to be qualified submitted cessfully maintained.” Assoc. Serv. Hosp. authority, аp- electors. Pursuant to this Pustilnik, 221, Philadelphia v. pearing 497 Pa. our early Constitution as as 227, 1149, (1981). However, 1874, directed, 439 A.2d Assembly the General has applies if doctrine and in part issues the relevant 605 of Section parties subsequent Code,3 are the same in the Election that “proposed constitu- action, Phila. Co. v. printed Suburban Water tional amendments shall be on the Comm’n, Pennsylvania Pub. Util. or ballot ballots labels in brief form to be (Pa.Cmwlth.2002). Only A.2d determined of the Com- petitioners two present three monwealth with the of the Attor- approval note, juncture, We justiciability at this that the General ion our consideration of prelimi- assert in these claims. does not its first nary objection any challenge justiciabil- 3. Act of June ity petitioners' challenges. amended, substantive P.L. *10 Therefore, opin- §§ we reserve until later in this 25 P.S. 2600-3591. the quired by § In Article XI of Constitution addi- ney General.” 25 P.S. 1110(b) tion, Pennsylvania. of specifies of Section the Code question and directs its length the of the Code, the added 201.1 of the Section states, Secretary. the It preparation by 19, 1986, P.L. 25 P.S. February Act of to be part, question “[e]aeh relеvant that im- requirement § does not 2621.1. This labels, on appear voted on shall the ballot duty to Attorney pose upon the General form, seventy- of not than brief more how a depth an in illustration of provide words, by the be determined Secre- five to the Constitution proposed amendment to tary of the in the case of Commonwealth Party Lincoln may public. the See affect ques- amendments or other constitutional A.2d Assembly, General of the tions to be voted on the electors (Pa.Cmwlth.1996). 1110(b), Section as large....” State case, Attorney In the Gener- present the amended, 3010(b). light 25 P.S. of the Face to purpose al that the stated grant authority the Constitution’s to the to “remove from Face Amendment is manner in the
prescribe the which amend- Pennsylvania ac- right Constitution the electorate, presented shall the ments the cused to confront witnesses persons Assembly quite properly the General di- face,’ the against them ‘face to so that proposed rected in Election that the Code may enact laws or General shall amendments Constitution be Pennsylvania Supreme may adopt Court presented questions composed by ballot as testify permit rules that children Therefore, Secretary. fails to Count the physical criminal outside proceedings aver a cause of action. stating presence of accused.” amendment, of the the Attor- limitations English Plain Statements “face ney General reiterated that the petition challenge Counts and 3 of deleted and language to face” would be adequacy accuracy plain of the continue to the Constitution “would English regarding statements both ballot guarantee right accused persons questions. Petitioners contend Fi- against confront the them.” witnesses misleadingly that the imply po- statements Attorney nally, announced tential effect amendments is limited effects as: “to remove amendment changing manner in which child Pennsylvania from. Constitution may testify. Petitioners further assert persons to confront the right of accused fail adequately that the statements de- against ‘faceto witnesses them face’ a variety alleged implicit scribe collater- language make the changes provisions al in other of the State guaranteeing persons accused Constitution. right to confront the witnesses language them the same 201.1 of Section the Election Code United Constitution.” States directs, pertinent part, that: Attorney prepare a General stated [T]he General shall purpose of the Judicial Administration plain English statement indi- As- “give and effects Amendment purpose, cates limitations sembly authority regarding laws people to make of the ballot on testify way that children in crimi- the Commonwealth. The video- proceedings, including nal the use of shall include such the Commonwealth closed-circuit televi- publication taped depositions in his of a statement permitting children as re- sions. The posed constitutional amendment *11 196
to testify separately. particular, petitioners such means is to them on In allow presence judicial to testify physical outside the of assert that administration bal- limitations, question expressly In lot stating proposes sepa- accused.” three Attorney amendments, rate General stated wit: change amendment “would not the authori- Assembly given One—The General is ty General make laws (The judicial authority through Article V regarding practice and in procedure rather Judiciary) legisla- than additional than give courts other (The II power through Leg- tive Article Assembly authority to make laws islature) (Legislation) III or Article of way regarding may that children testi- Pennsylvania’s Constitution. fy in criminal proceedings.” Attorney The Assembly may by Two—“The General General announced the effects of the provide statute for the manner of testi- as “to amendment enable General As- mony child material witnesses in sembly make regarding way laws proceedings.” criminal may testify children in criminal Assembly may by Three —The General ceedings.” provide testify statute for children to presence outside the in accused do not We find these statements proceedings, “including criminal the use flawed. The statements provide relevant videotaped or depositions testimony past information about unsuccessful by closed-circuit television.” adjust attempts regarding the law how 59, Review, paragraph p. Petition for at 24. and, in testify light children of this Petitioners further assert that the face to historical perspective, each statement ac question “implicitly face ballot amends Ar- curately principle purpose, describes the (Inherent I, mankind), § rights ticle 1 amendment; limitations and effect of the (Trial (Reservation § by jury), § and 25 XI, § 1 require Article does not more. rights in the people). Petition for Re- no duty is under view, paragraph p. speculate every possi about and describe up ble unintended effect. It I, Bergdoll present two of peti- proposed electorate to determine if the Grimaud, tioners, and Bergdoll and third change is to achieve appropriate the stated person party action, in present not sufficiently and limited in its ef challenged question ballot submitted to open fect so as not to a door to unwanted the electorate of 1995. November At reasons, collateral For effects. these time, single question ballot incor- plain meet English statements constitu porated both the amendments at issue tional requirements and Counts and 3 reason, present action. For this our fail to cause aver a of action. court, banc, en sitting granted summary judgment challengers in favor of the
Multiple Amendments question declared the vote on the ballot Question Single Kane, Bergdoll null and void. A.2d 4, 5, (Pa.Cmwlth.1997). petitioners appeal, Counts On affirmed, questions stating, assert that our Court each the ballot “We correspondingly proposed agree petitioners] each that the ballot with [the actually encompassed amendments contains within it two amendments I, V, 10(c), § both 9 and more amendments violation Article Article XI, § requirement that two or but did to vote permit electorate separately each of upon more amendments be submitted and voted the amendments
197
I,
XI,
Moreover,
in
v.
Bergdoll
§
Grimaud
Common-
of Article
1.”
in violation
wealth,
(Pa.Cmwlth.2002), an
87,
A.2d
Pa. at
731 A.2d
1270.
806
923
557
of our court confronted
panel
en banc
Supreme
Our
Court’s decision
similarly as-
“implicit change” argument
Bergdoll
any
inquiry
I
further
in
in
ends
present case. The court
serted in the
many
into
ballot
present
case
how
rejectеd
argument that a constitutional
questions
pres
should be teased out
14,
I,
adopted
to Article
amendment
I,
Bergdoll
proposals.
ent amendment
1998, implicitly
in
amended
electorate
actually litigated and essen
this issue was
rights in Article
guarantees
of certain
rendered, which di
judgment
tial to the
I,
25,
1, 9,13,
stating:
§§
and
ques
of
rected the submission
two ballot
exactly
present
was done in the
tions
as
reject
argument
petitioners’
We further
reason,
case. For this
under
doctrine
that
as to Article
single-ballot question
and
estoppel, Bergdoll
of collateral
Gri
I,
separate
14
vote
violated
Section
maud,
action,
in the
parties
both
are
prior
requirement because other constitutional
in
relitigating
from
the issue
precluded
provisions
“implicitly”
were
amended.
Jury
action.
Roman v.
Selec
present
See
The fact that an amendment to one
County,
Lebanon
780 A.2d
tion Comm’n
may
possibly
vision of
(Pa.Cmwlth.2001).
n.
As
809
3
for
impact
provisions does not violate
other
Battersby,
in
participated
Berg-
he neither
separate
requirement.
vote
privity
petition
doll I nor
was
with
dynamic
is
Pennsylvania Constitution
there, so
does not
estoppel
ers
collateral
rights
powers
in which
and
document
his
bar
contention
each
two
inextricably
Any time
are
intertwined.
questions propose
ballot
more than one
provi-
amend
the electorate votes to
one
However,
I
Bergdoll
amendment.4
consti
sion,
provisions may
other constitutional
controlling precedent.
tutes
way.
It
affected
some
implicitly
be
I,
subject every
to
Bergdoll
impractical
our
Court found
would be
amend-
single
question proposed
conseqüence
ballot
an
conceivable
changes
separate
ment to a
vote. Petitioners’
two substantive
Constitu-
As-
purposes;
approach
require
tion that
two distinct
would
served
wit,
require-
sembly
pose multiple
face
amendments
elimination
face to
re-
thing, “potentially
the same
stating
ment of
confrontation clause
au-
chaos,”
an
or
sulting
thorization for
confusion
hypothetically
establish the manner in
elector would
be able
which children
favor of
amendment
may testify
proceedings.
in criminal
Ac-
vote in
one
notwithstanding the
cordingly,
others,
the Court directed
each of
all of the amend-
changes
passage
to the elector-
fact that
these
be submitted
required
ments would be
order
separate
questions.
ate in two
ballot
Pa.Super,
464
"Privity
broadly
Aktiengesellschaft,
as "mutual or
defined
(1983).
recognizing
right
While
relationships
A.2d
to the same
successive
is-
estoppel or
that the doctrine of collateral
property, or such an identification
interest
concept
res
preclusion is
than
person
represent
sue
broader
one
with another as
that an
legal
judicata
preclusion,
claim
right.”
v.
or
same
Montella
Berkheimer
Assoc.,
(Pa.Cmwlth. 1997).
strictly required in
identity
parties is not
A.2d
bar, it remains
"Privity
judicata
order to invoke the former
purposes of res
is not
party against
the bar is
whom
persons
true that
established
the mere fact that
prior suit
as in the
prov
asserted must
the same
the same
be interested in
Day Volkswagenwerk
privity
Id. at 1319.
or in
ing the same facts.”
therewith.
change.
publication
effectuate
a single
Logic,
the months when
should have
therefore,
occurred,
that our inquiry
apparently
dictates
can-
believe that
use
*13
not be
“immediately” obliged
whether an amendment in
the term
some
the Secre
way
tary
implicitly impacts
publication
February,
another
to
in
constitu-
cause
Rather,
2002,
provision.
tional
March
inquiry
April
July,
our
in
August
must be
September
whether an amendment has one
of 2003. Petition
core
ers
point specifically
publication
and effectuates one sub-
also
8,
change
stantive
the
in
Dispatch
to
Constitution.
the Blairsville
on August
2003
being
satisfy
too late to
the consti
Id. at 930.
The
Court’s decision
tutional
In
requirement.
support of their
in Bergdoll
conclusively
I
answered this
regarding
timing
publi
contentions
the
inquiry.
Secretary
as the
Inasmuch
com-
cation, petitioners rely on
in
statements
plied with the Court’s direction and sub-
Lawrence,
408,
Tausig v.
328 Pa.
A.
197
mitted two ballot questions to the elector-
(1938)
King,
235
and Commonwealth v.
ate, there
present
exists no basis for the
280,
(1923), indicating
278 Pa.
months or more before election. Timely Publication Beamish, rely also on Commonwealth v. (1932) 510, 309 Pa. 615 support 164 A. to 9, In petitioners challenge Count Secretary contention that was publication timeliness obliged publish to in each of three months. posed particular, amendments. peti- petitioners From these cases assert tioners complain Secretary that the erred calling rule for three consecutive months causing publication during in late publication the last in occurring with July/early early August, September and August. language Our review of the in the early just October prior respective Constitution and the cases does not estab November in elections 2002 and 2003. Secretary lish that the was under such petitioners The' that the Secretary assert duty. in publication While each of three obligated 2002, was publication to cause in for, months is publication called in the immediately following passage joint of the preceding three months the election is suf 23, resolution on January Similarly, ficient slight and the variation as to the 2003, they that, publication assert in day in each thаt the month different news immediately should have followed after papers actually published the amendments 23, passage joint resolution on June adoption. fatal to present resulting 2003 in “at publication least once per month for the three preceding months XI, § requires, pertinent Article (sic) (3) prior to three months before the part, Assembly after municipal November election.” votes on on proposed amendments occasions, petitioners point
The
each of
language
Secretary
two
joint
that,
in each
directing
resolution
Commonwealth
cause
“shall
the same to be
“Upon ... passage by
published
the General Assem
three months before the next
bly
general election,
these proposed
constitutional
in at least
newspa-
two
amendments,
pers
every county
in which
Com
such news-
monwealth
proceed immediately
papers
shall
shall
published.”
King,
be
our
comply
advertising requirements
with the
that a
Supreme Court held
constitutional
”
Petitioners,
XI....
of section Article
amendment
submitted to the
although not
specifying
petition
municipal
their
electorate in an odd numbered
Court,
opportuni-
year.
considering
give
the electors an abundant
election
concerning
proposed
section
advised
publication requirement
ty
then
to be
appear
policy
now
identical
and to ascertain
amendment
XI,
appear
Assembly
said
‘next
ing Article
for the General
candidates
“in the
ance of the advertised amendment
they
because
would
afterwards chosen’
publications three months before
proper
proposed
amend-
pass upon
have
day
pass
on
set for the electorate
it
when
came before the
ment
proposed
Beamish,
amendment
is sufficient.”
time.”
second
283, 122
Id. at
A. at 280.
*14
514,
King,
[quoting
at
All the
is that
section commands
the
is not sufficient
beforе
election
secretary
the
of
transmit
advertisements
fully
the
to be
advised
enable
electorate
proposed
proper
the
to the
amendments
the
importance
the
and nature of
of
newspapers
to en-
within sufficient time
At
the same
proposed amendments.
a
published
able them to be
at
date
time,
believing
ground
there
no
for
is
in
three months or more
advance
is neces-
publication for thirteen weeks
election,
they
directions that
be so
with
in
sary;
certainly
nothing
and
there
published.
requiring
18
such continued
article
itself
the
suggested by
be
publicity.
It
415,
at
Id.
Finally,
monthly publications
require
three
publication,
“was did
noted
Pennsylvania’s
each
than
Represen
more
three months before the
used
House of
election,
petitioners
tatives,
assert
satisfy
should have
does not
the constitutional
present
occurred in the
action.
requirement
that the vote “be entered on
journals
yeas
their
nays
with the
tak
case,
present
parties
have
rejected
en thereon....” We
a similar
stipulated
authenticity
accuracy
challenge to the constitutional
propriety
publication
the invoices submitted for
voting
electronic
in Grimaud v. Common
newspapers.
the various
These reveal
wealth,
(Pa.Cmwlth.2002),
ther
2003 purpose
previously
requiring
identified
publication in the
Dispatch,
Blairsville
publication
Assembly’s
after the General
weekly newspaper,
which is a
effected a
first vote. That is to afford the electorate
incomplete publication
correction of the
opportunity
repre
to ascertain their
August
made on
1. The
of actual
dates
position
pri-
sentative’s
on the amendment
publication leave no room for doubt that
election,
general
or to the next
at which a
Secretary
required
submitted the
ad-
change might
represen
be made as to the
vertisements to the
in
newspapers
ample
who
tative
would next vote on the amend
timely publication.
time to achieve
It is
413,
Tausig,
ments. See
General
Vote
Assembly
to occur in the General
“next
11,
case,
present
In the
petitioners
Count
con
afterward chosen.”
voting
that the
procedure,
tend
electronic
Senate first voted
favor
11,
protected
rights
with the
under
during
on
conflicted
amendments
June
I. The
said:
Article
Court
session,
in favor
185th
the House voted
in this
theory recognizes that we
This
January
during
on
thereof
reser
dispensing
Commonwealth
occurred
186th session and
second vote
states
power consigned
voir
February
2003 in the
on
Senate
federalism, have
system
our
under
House,
during
2003 in the
June
both
rights
articulated
determined that
premise
the 187th session. Petitioners
being
recognized
I
are to be
numbering
their contention on the
this
right
of a resident of
inherent
on
legislative sessions rather than whether
and insulated
Commonwealth
amend-
Assembly passed
General
this Com
governmental power of
after
ments
votes taken before and then
this Court
explained
monwealth. As
Socialist
in Western
general
requires
election. Article XI
Campaign v.
Connecticut
Workers
by the
passage
second
of the amendment
Co., 512 Pa.
Insurancе
General Life
general
chosen
(1986):
1331, 1334
28-29, 515 A.2d
passage.
the initial
That
following
election
constitu-
primary purposes
The
of a
present
occurred
precisely
what
in the
a government,
tion are to establish
membership of the
As-
case—the
powers
divide
define
limit its
initially
sembly
agreed to the amendments
among its
powers
parts.
those
general
prior to the
election in 2002 and
States Constitution establishes
United
following
in 2002
general
then
election
limited
enumer-
government
*16
Therefore,
for
time.
agreed
the second
powers. Consequently, the na-
ated
government possesses
11 fails
a
tional
Count
to aver
cause of action.
powers delegated to it. State
those
hand,
constitutions,
typi-
on the other
Challenges
Substantive
cally
governments
general
of
establish
possess
powers
all the
powers, which
10,
In Count
contend that the
petitioners
by the
not denied
State constitution.
Face
impermissibly
Face to
Amendment
functions this
Our State constitution
from
of
right
removes
the Constitution the
pow-
way
general
and restrains these
a criminal
accus-
defendant
confront his
Rights
a
[in
ers
Declaration of
face,
er face
which is
under
inviolate
Article I].
I,
1,
peti-
Article
25. In Federal Count
general
agree
proposition
with
We
change
in a
tioners assert that this
results
in the Dec-
rights
that those
enumerated
of
federal
violation
both the State and
are
to be
Rights
laration of
deemed
transgressed
not be
inviolate
as it
Constitutions insofar
discriminates
government....
likely
a class
and will
of defendants
[petitioners’] argument would
Thus
wrongful
in more
convictions.
result
at a
convincing if its focus was directed
enactment,
reg-
an
legislative
executive
Court addressed
Supreme
Our
Here
judicial
or a
decision.
ulation
rights
that the articulation of
premise,
first
challenge
to a
relates
however the
power
Article I
to amend the
in
limits the
people-It
is ab-
nouncement of the
Constitution, in Gondelman v. Common
enu-
rights
that
suggest
surd
(1989).
wealth,
Pa.
A.2d 896
I
in
were intended
merated
Article
to the
challenge
Gondelman involved
them-
power
people
restrain the
mandatory
in
re
provision Article Y
sight
proposition
loses
selves. Such
of
overriding principle
it
“the
ground
of
on the
of
basic
judges
tirement
government
premature
American
power
any
all
lative concerns are
de-
—that
people.”
is
cision respecting these concerns must
controversy.
await a ripe
(citations
466-67,
Id.
Amendment of the United States Constitut present assignment powers ion.5 among duties the three branches does not people exercising power bar the from their Maryland Craig, 497 U.S. adjust assignment. 110 S.Ct. Our Constitu L.Ed.2d 666 (1990), upheld political as con tion reserves power Court the ultimate Maryland’s statutory procedure I, 2,§ stitutional people in Article pro *17 permitting a child of crime testify victim vides: outside view of the defendant and ob power All people, is inherent and that, “[although served face-to-face con all governments free are founded on frontation forms ‘the core the values their authority and instituted for their by Clause,’ furthered the Confrontation we peace, safety happiness. For the that it recognized
nevertheless
is not the
advancement
they
of these ends
have at
qua
right.”
sine
non of the confrontation
all times an inalienable and indefeasible
847,
Hence,
Id.
110
S.Ct.
right
alter,
or abolish their
reform
removal of
to face” language
the “face
government
they may
manner
such
our
per
from
State
se
Constitution
does
proper.
think
infringement
not result in an
of federally
Insofar as the
protected rights.
people
Inasmuch as our
amend their
State
and,
legislature
thereby, may adjust
gov
has not established rules
erning
petitioners’
branch,
testimony,
specu- particular authority
child
of each
government
republican
govern-
5. The Sixth
of the United
6. A
Amendment
States
form
is
Constitution,
part, provides:
by
in relevant
"In
people
representatives
ment of the
cho-
prosecutions,
all criminal
Duncan,
accused shall
by
people.
sen
In re
139 U.S.
enjoy
right
...
to be confronted with the
449,
573,
(1891).
11 S.Ct.
203 their form of republican Peti- petitioners’ simply contention fails. tution threaten speculate point sep- government. that at a tioners some problem aration of could arise as powers reasons, For these Counts 10 au- assigning rulemaking result some 2 aver Counts 1 and fail to causes Federal thority legislature leaving while of action. authority judiciary bulk such but petition fails as a mat- Inasmuch as the possibility will confront such a until
we any aver viable cause ter of law to controversy is us. ripe before action, Assembly’s we the General sustain objections in' preliminary and third second petitioners’ for As contention and, we sustain the nature of demurrers Pennsyl amendment undermines Attorney General’s Secretary’s government form of republican vania’s objection generally de- single preliminary clause, guarantee violation of the federal murring to all Counts. First, find premise untenable. we guarantee claims under the clause general, ORDER See, justiciable. e.g., are not Baker NOW, day September, 16th AND this Carr, 186, 217-27, U.S. S.Ct. Assembly’s first and (1962); L.Ed.2d Tel. & States Pacific objections in the preliminary fourth above Oregon, Tel. Co. v. 223 U.S. 32 S.Ct. hereby are captioned matter OVER- (1912). 224, 56 L.Ed. States Pacific remaining preliminary RULED and Telephone, explained: Court objections nature of a demurrer in the with Congress [I]t rests decide what Respondents hereby are SUSTAINED government is the in a established one is petition and the review DIS- For, state. as the guar- United States MISSED. antee state republican to each form government, Congress necessarily must AND DISSENTING CONCURRING government Judge decide what BY PELLEGRINI. established OPINION in the it can state before determine portion I dissent from that respectfully republican whether it is or not. And majority’s opinion sustaining the representatives when the senators and objections filed the General preliminary of a are into councils state admitted Assembly, and the Union, authority gov- of (Secre- Commonwealth they under are appoint- ernment petition response to Count 2 of the tary) *18 ed, character, as as its is republican well jurisdiction original in our for review filed recognized by proper the constitutional C. Grimaud by Bergdoll, G. Gerald John its on authority. binding And decision is (Petitioners) Battersby R. and Matthew evеry department of govern- other the ac- English the statement plain because ment, questioned could in a not be question on confron- companying ballot the judicial tribunal. misleading is as to the tation of witnesses question. of the ballot content Thus, en- 223 U.S. at S.Ct. Assembly directed guarantee clause In the General
forcement of the federal question a the to submit ballot province legislature. is the of the federal the Second, not, Pennsylvania’s qualified electors in nor see petitioners do do we to re- could, election municipal aver they possibly case November how this I, Sec- exercising the amendment of explain people garding how Pennsylvania Constitution. alter their tion 9 power their ultimate to Consti- That question, ballot which related to the language of the United States Constitu- rights of prosecu- the accused a criminal tion. I, tion under Article Section 9 of the Penn- Pennsylvania Supreme The Court has sylvania Constitution, read: “Shall ruled that permitting laws children to Pennsylvania Constitution be to amended testify in criminal proceedings outside providе that person accused of a crime physical accused, presence by has right to be ‘confronted with the means such videotaped deposition him,’ against
witnesses instead of right television, closed-circuit violate to ‘meet the witnesses to face face’?” The Pennsylvania they Constitution because proposed provision read as follows: deny persons right accused to con- prosecutions all criminal the accused front against the witnesses them “face to right hath a to by be heard himself and contrast, face.” the United States counsel, his to demand the nature and Supreme upheld has Court such laws him, cause of the against accusation to Constitution, under the United States [meet face] face witnesses be guarantees which persons accused against confronted with the witnesses right to against confront the witnesses him, compulsory process have them, necessarily right but not obtaining favor, and, witnesses his confront witnesses “face to face.” prosecutions by indictment or informa- The this question ballot is to tion, speedy public impar- trial an Pennsylvania remove Consti- from jury tial vicinage; he cannot be right tution the persons accused compelled give against him- evidence against witnesses them confront self; life, nor deprived can he be of his ” face, so that Pennsylvania “face liberty or property unless judg- Assembly may enact laws or ment of his peers or the law of the land. Pennsylvania Court The suppressed voluntary use of a ad- adopt permit rules that children to tes- or voluntary mission im- confession to tify in criminal proceedings outside the peach credibility person may of a physical presence the accused. permitted and shall not be construed as compelling person give evidence Pennsylvania Constitution would (Underlined against language himself. guarantee persons continue to accused inserts; deleted.) language bracketed right to confront the witnesses question them. This ballot Accompanying question the ballot was the limited in that it would remove from the required English “Plain Statement of the Pennsylvania right Pennsylvania” General of to confront witnеsses “face to face.” stated: This ballot question proposes to amend The effect of this ballot would provision Pennsylvania Con be to remove from gives stitution that persons accused of a right per- Constitution the of accused *19 crime right the to “meet the against witnesses sons to confront the witnesses face to face.” The United States Consti them “face to face” and to make the gives person right tution an accused language Pennsylvania the of the Constitu- to “be confronted the guaranteeing persons with witnesses tion accused the against question right him.” This ballot to confront the witnesses language would make the of language the Penn them the same as the sylvania Constitution the same as the United States Constitution. statement, added.)1 reading the From Among things, question. lot (Emphasis other the determine what should be able to peti- in Count of their one allege Petitioners its effects. question ballot asks Attorney the General’s tion for review that failed English to accurate- plain statement case, making than it clear In this rather purpose, limitations ly inform vоters of its from all away takes that the amendment the mislead- and effects because statement con- testify have to persons who ingly implied that the effect of the amend- face,” Attorney “face to front witnesses changing was manner ment limited gives plain English statement General’s testify. a child could The Secre- which question the ballot impression that Attorney the Gener- tary, General and acting as only with children deals whether objections preliminary al filed being ac- have confront those witnesses that claim to aver arguing failed chil- or whether the cused “face face” conflict substantive with Constitution. their testify presence. can outside dren Sustaining Secretary’s preliminary itself Because the amendment does objection to 2 of the for petition Count mention the word “children” and even review, majority holds that the state- from question removes our Constitu- ballot plain language require- ment meets the per- right confront witnesses tion that ment because it states everyone, state- plain English from son the amendment was remove from only impression ment that it removes of ac- right Constitution children mislead- requirement protect persons cused to confront the witnesses 201.1 of ing and is violation Section against them to face chil- face and allow the Election Code. testify proceedings dren to in criminal out- I overrule Accordingly, because would physical presence side the accused. Secretary’s objection to preliminary portion I dissent the deci- from review, petition 2 of Petitioner’s Count disagree Attorney I sion because portion I from that dissent plain complies English General’s statement majority opinion. with Section 201.1 of Election Code.2 201.1 pro- Section of the Election Code joins in this Judge SMITH-RIBNER vides, part: in relevant concurring dissenting opinion. prepare General shall [T]he English indi- plain statement purpose,
cates the and effects limitations on people ballot Commonwealth. such
the Commonwealth shall include publication in his of a
statement re-
posed constitutional amendment as by Article XI of the
quired Pennsylvania.
All that is in the statement is required and effects of the bal-
purpose, limitations Code, added passed by 201.1 of the Election was the elector- 2. Section 1. The amendment February 25 P.S. P.L. the Act ate the November election. *20 § 2621.1.