COMMONWEALTH of Pennsylvania, Appellee, v. Gershom SESSOMS, Appellant.
Supreme Court of Pennsylvania
Decided Oct. 7, 1987.
532 A.2d 775
Argued Dec. 1, 1986.
AND NOW, this 3rd day of September, 1987, the appeal is hereby transferred to the Court of Common Pleas.
LARSEN and HUTCHINSON, JJ., dissent.
While they agree with the order entered by this Court on July 31, 1987 denying the Application for Stay, they would not transfer the matter from the Commonwealth Court.
Mary M. Killinger, Chief, Appeals Div., Norristown, Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, for amicus curiae—Pa. Dist. Atty.‘s Assoc.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION
ZAPPALA, Justice.
This appeal presents a challenge to the validity of a sentence imposed according to the Sentencing Guidelines,
The Pennsylvania Commission on Sentencing was created in 1978 and given the task, broadly stated, of collecting data regarding sentencing practices throughout the Commonwealth and assimilating a wide range of information and
The Act of November 26, 1978, P.L. 1316, No. 319, originally found at
This enabling legislation contemplates that the Commission will adopt sentencing guidelines after publication in the Pennsylvania Bulletin and opportunity for public comment. It also provides as follows:
(b) Rejection by the General Assembly—The General Assembly may by concurrent resolution reject in their entirety any initial or subsequent guidelines adopted by the commission within 90 days of their publication in the Pennsylvania Bulletin pursuant to subsection (a)(2).
(c) Effective date—Initial and any subsequent guidelines adopted by the commission shall become effective 180 days after publication in the Pennsylvania Bulletin pursuant to subsection (a)(2) unless rejected in their entirety by the General Assembly by a concurrent resolution within 90 days of their publication. If not rejected by the General Assembly the commissioners shall conduct training and orientation for trial judges prior to the effective date of the guidelines.
In accordance with the enabling legislation, the Commission published proposed guidelines, see 10 Pa.Admin.Bull. 4181-96 (Oct. 25, 1980), held public hearings after which revisions were made, adopted the guidelines as revised, and published the adopted guidelines, see 11 Pa. Admin. Bull. 463-76 (Jan. 24, 1981). On April 1, 1981, the House passed resolution No. 24, rejecting the guidelines in their entirety and “urg[ing] and direct[ing]” the Commission to “revise and resubmit” them within six months. This resolution, passed by the Senate on April 8, 1981, suggested as areas for review that the Commission increase the upper limits of guideline sentences generally, that judges’ authority to account for aggravating or mitigating circumstances be broadened, that the discussion as to concurrent and consecutive sentencing practices be removed, and that crimes involving serious bodily injury be treated more severely. This resolution was not presented to the governor for his review. Thereafter the Commission did adopt a second set of guidelines, “rewritten in accordance with the legislative resolution,” and published these in the Pennsylvania Bulletin on January 23, 1982, 12 Pa.Admin. Bull. 431-40. The Senate passed a resolution, No. 227, explicitly stating that it “does not reject” these guidelines. These guidelines became effective July 22, 1982, 180 days after their publication.
The appellant‘s argument is derived from recent decisions of the United States Supreme Court invalidating the “legislative veto” as violative of sections of the federal Constitution instituting the separation of the powers of the several branches of government. In Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) the Court held unconstitutional a provision of the Immigration and Nationality Act under which either House of Congress could, by resolution, disapprove a
The court based its holding of unconstitutionality on the federal Constitution‘s prescription for legislative action by way of bicameral approval,
The Court later entered a summary affirmance in United States Senate v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed. 2d 1403, 77 L.Ed.2d 1413 (1983). There the Court of Appeals for the District of Columbia Circuit had invalidated a provision of an Act allowing Congress a two-house veto by concurrent resolution of regulations adopted by the F.T.C. Consumers Union of U.S., Inc. v. Federal Trade Commission, 691 F.2d 575 (D.C.Cir.1982). The Circuit Court sitting en banc adopted the rationale of a panel of the same court in Consumers Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C.Cir.1982), also summarily affirmed by the Supreme Court at 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed.2d 1403, 77 L.Ed.2d 1413 (1983). Consumers Energy v. F.E.R.C. to a great degree presaged the rationale of Chadha.
Recognizing that Chadha involved only an interpretation of the federal Constitution, the appellant urges this Court to accept the reasoning articulated there as a sound construction of virtually identical language contained in the Constitution of Pennsylvania.
By
The requirement that bills passed by both Houses be presented to the Governor for approval is contained in
Every bill which shall have passed both Houses shall be presented to the Governor; if he approves he shall sign it, but if he shall not approve he shall return it with his objections to the House in which it shall have originated, which House shall enter the objections at large upon their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of all the members elected to that House shall agree to pass the bill, it shall be sent with the objections to the other House by which likewise it shall be re-considered, and if approved by two-thirds of all the members elected to that House it shall be a law; but in such cases the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journals of each House, respectively. If any bill shall not be returned by the Governor within ten days after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which
Section 9.
Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
Compare,
We shall not replicate the scholarship of the Supreme Court in Chadha or the Court of Appeals in Consumer Energy v. F.E.R.C.. As were those courts, we are persuaded that the foregoing provisions “are integral parts of the constitutional design for the separation of powers.” Chadha, 462 U.S. at 946, 103 S.Ct. at 2781. The Supreme Court‘s summary of the purpose of these sections may equally be applied to the design of our Commonwealth government.
[T]he bicameral requirement and the Presentment Clauses ... serve essential constitutional functions. The [Executive‘s] participation in the legislative process was to protect the Executive Branch from [the legislature] and to protect the whole people from improvident laws. The division of [the legislature] into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The [Executive‘s] unilateral veto power, in turn, was limited by the power of two-thirds of both Houses ... to overrule a veto thereby precluding final arbitrary action of one person. .... It emerges clearly
that the prescription for legislative action ... represents the Framers’ decision that the legislative power ... be exercised in accord with a single, finely wrought and exhaustively considered, procedure.
Id. at 951, 103 S.Ct. at 2784.
The Commonwealth argues that various considerations peculiar to the concept of federalism underlay the structure adopted in that Constitution but were lacking in the Pennsylvania experience. It is obvious that the Great Compromise, by which the numerical disadvantage of the smaller states in the House of Representatives was counteracted with equal representation in the Senate, is not precisely duplicated in the General Assembly. It seems equally obvious, however, that the overriding purpose of the bicameral structure—due consideration by separate bodies composed of members representing constituencies of narrower and broader territories—is the same in each. Likewise, although Chadha described the President‘s powers under the Presentment Clauses as “serv[ing] the important purpose of assuring that a ‘national’ perspective is grafted on the legislative process,” 426 U.S. at 948, 103 S.Ct. at 2782 (emphasis added), we might easily describe the Governor‘s role under our presentment clauses as adding a statewide perspective to the local and regional perspectives supplied by the House and the Senate respectively. In short, the distinctions argued by the Commonwealth appear insignificant in relation to the similarities of purpose and do not convince us that our Constitutionally ordained separation of powers should be understood to be less exacting than that prescribed in the federal Constitution.
For the most part, the parties have presented the case as a question of whether the foregoing reasoning does or does not apply to
The primary distinction we perceive between our Commission on Sentencing and the agencies whose functions the Congress tried to retain a veto power over in the federal cases, is that those agencies were all administrative agencies, either independent or within the executive branch. When an agency undertakes the executive function of administering the laws enacted by Congress, which set out policy in varying degrees of detail, it promulgates rules and regulations. Notwithstanding the view that such regulations are adopted under a delegation of the legislative power to the agency, administrative rulemaking may be viewed as entirely executive in nature. Cf., Consumer Energy v. F.E.R.C., 673 F.2d at 473-74. In this view rules may be described as (hopefully) understandable, reasoned, public statements of a method of operation chosen by the executive to ensure fairness in pursuing his responsibility to execute the laws enacted by the legislature.
The Supreme Court in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 3192, 92 L.Ed.2d 583 (1986) (Comptroller General, as officer of legislative branch, may not be assigned executive functions) stated the essence of this entire line of reasoning, and its relation to Chadha as follows: “once [the legislature] makes its choice enacting legislation, its participation ends. [It] can thereafter control the execution of its enactment only indirectly—by passing new legislation.” (Emphasis added). Thus, to the extent that a statute establishes governmental policy, the legislature may not further control the execution of that policy except through legislation. To the extent that a statute establishes only legislative structures, the legislature may further control the actions of such structures through means other than legislation, but the powers assigned to those structures may not exceed the legislative and become executive. The primary flaw in the legislation
A recent amendment to the enabling legislation explicitly establishes the Commission as “an agency of the General Assembly.”
Most significant, however, is the composition of the Commission. The Commission is composed of four judges from the courts of common pleas appointed by the Chief Justice, four members of the General Assembly appointed by the leaders of the respective Houses and representing different political parties, and three appointees of the governor—a district attorney, a defense attorney, and a law professor or criminologist. Amicus curiae Defender Association of Philadelphia rightly observes that the inclusion of legislators and/or judges on an agency administering the laws is itself likely violative of the separation of powers doctrine. No clearer concentration of the executive, legislative, and judicial powers in one body can be imagined, if that body purports to have authority to carry the laws into effect. While amicus makes this point in pursuit of a different line of reasoning, because we are obliged to presume that the General Assembly does not intend to violate the Constitution,
We find little guidance for understanding the nature and functions of a “legislative agency” in prior cases or statutes, such a creature appearing to be unique. We may presume, however, that just as executive branch agencies exist to carry out functions committed to the executive power, that is, executing or administering the law, a “legislative agency” has as its purpose the furtherance of some aspect of the legislative power. A review of
It is readily apparent that the Commission‘s guidelines cannot, without more, be given the effect of law, either as legislation or regulation, so as to by themselves alter the legal rights and duties of the defendant, the prosecutor, and the sentencing court. Such a result can be obtained only by way of enactment of a law or administration of a law duly enacted. However, to the extent that the rights of the defendant and the prosecution, the duties of the sentencing court, and the relations between them have been altered by the requirement that the court consider the guidelines, this has been accomplished by the enabling act—legislative action conforming to constitutional requirements. So long as the judiciary has ultimate control over the application of the guidelines to a particular case, as one factor among the many enumerated in the Sentencing Code as a whole, there has been no substantive change in the judicial prerogative
We may leave for another day an analysis of the full extent of the powers that may be assigned to a “legislative agency“. For present purposes we need examine only the significance of the enabling Act‘s provision for legislative review of this agency‘s work-product and disapproval by concurrent resolution. If the Chadha rationale may be summarized as holding that nothing less than legislation duly enacted may suffice to override the rulemaking power of an administrative agency, the question raised by this case is whether the same necessarily holds true for a legislative agency. Perhaps unfortunately, as it leaves
Returning to Act 1978-319 and Act 1980-142, the Commission‘s enabling legislation, it is clear that if the legislative action necessary to reject1 the work-product of a legislative agency must take the form of a law,
We do not find it fatal to the present legislation that it does not explicitly require presentment of a rejection resolution to the governor. We may imply such a condition to avoid finding the statute unconstitutional on its face. In actual application, however, it is clear that the present guidelines are the direct product of a violation of this constitutional requirement of presentment.
The effect of the foregoing for Gershom Sessoms can be identified from the record, although the parties were of no assistance to the Court in identifying it. It appears that under the guidelines initially approved, Sessoms, with no prior record score, would have qualified for a minimum sentence in the range of 8 to 11½ months for the aggravated assault conviction. Under the rewritten guidelines, although the “base” minimum sentence would have been substantially unchanged (8 to 12 months), a new section, applicable to Sessoms was added. Section 303.4(a) provides that “at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed” for possession of a deadly weapon in the commission of a crime. As the trial court indicated that it was following the guidelines, the sentence of 2½ years (30 months) must have been derived from these two provisions; had the rejection resolution not “prevented” the effectiveness of the initial guidelines, a sentence under them would have been 8 to 11½ months.
PAPADAKOS, J., joined in the majority opinion and filed a concurring opinion.
HUTCHINSON, J., filed a concurring and dissenting opinion.
LARSEN, J., filed a dissenting opinion.
PAPADAKOS, Justice, concurring.
I join with the majority because I understand the majority opinion to say that the Sentencing Guidelines were adopted unconstitutionally because of the lack of presentment to the Governor. I also agree with the mandate of remand for resentencing pursuant to the remaining valid provisions of the Sentencing Code. I do not view the Court‘s decision today as inviting or requiring a review of all sentences heretofore imposed with consideration of the now-found invalid Sentencing Guidelines. These guidelines have been, after all, mere guides to more appropriate sentences and
I write separately to express my disquietude with the apparent approbation accorded to the concept of “legislative agency” in the majority opinion. It is commonly understood that the relationships of the three branches of American government with each other are defined by the principles of separation of powers and checks and balances. The broad purposes of these principles include the dispersal of governmental authority to prevent absolutism and the allocation of each function to the branch best suited to perform it. See, Bruff, Presidential Power and Administrative Rule Making, 88 Yale L.J. 451 (1979). Rigid separation of powers to the extent that effective government becomes impossible is not required:
The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.
Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d. 659 (1976).
Modern administrative agencies, on both the state and Federal levels, that have developed since before the New Deal usually combine legislative, executive and judicial functions under one roof. Such agencies are often collectively referred to as the “Fourth Branch” of government. See, Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Columbia L.R. 573 (1984). The relationship of the fourth branch to the other three branches is not spelled out in any detail in the Federal Constitution or in our own Pennsylvania Constitution. As Professor Strauss points out about the Federal Constitution:
The text and structure of the Constitution impose few limits on Congress‘s ability to structure administrative government. One scanning the Constitution for a sense of the overall structure of the federal government is immediately struck by its silences. Save for some aspects of the legislative process, it says little about how those it names as necessary elements of government—Congress, President, and Supreme Court—will perform their functions, and it says almost nothing at all about the unelected officials who, even in 1789, would necessarily perform the bulk of the government‘s work.
Strauss, supra, at 597.
The same general comments could be made as well about the Pennsylvania Constitution. Nonetheless, because of the inherent concept of separation of powers, and the path of historical development, some bright lines can be established. An administrative agency that carries out public business directly affecting or regulating individual citizens must have some significant official relationship, however tenuous in certain respects, with each of the three constitutional branches. Each of those three branches must have some degree of oversight function in order to pass constitutional muster.
Judicial oversight occurs in the form of judicial review, ranging from limited review to extensive de novo review. The Courts, both state and Federal, will determine whether rules and regulations were adopted in a procedurally proper fashion and in conformity with substantive legislative standards. Moreover, courts must determine whether enforcement activities were carried out correctly. As well, courts regularly review quasi-judicial decisions for errors of law or abuse of discretion.
Executive oversight has occurred most frequently in the forms of appointment and removal. In spite of the growth of a professional bureaucracy and civil service protection, it is clear that a President or a governor can hire, or fire, top level policy making administrators. Even with respect to so-called “independent” agencies or commissions, the execu-
In Buckley v. Valeo, supra, the United States Supreme Court held that any “significant governmental duty exercised pursuant to a public law” must be performed by an “Officer of the United States” who is appointed by the President or the head of a department pursuant to
The degree of executive oversight permitted with respect to the Sentencing Commission, at issue here, appears to be perilously close to being non-existent and hence is Constitutionally defective. The governor was permitted to appoint only three of the eleven members of the Sentencing Commission, while the Commission‘s final guidelines were not subjected to gubernatorial veto or approval. In my judgment, the role of the Executive branch was too limited in relation to the composition and operation of the Sentencing Commission.
If executive branch oversight was too limited here, that defect in and of itself might not be constitutionally fatal. Concurrently, however, legislative oversight has not been confined within proper channels.
This Court has routinely held, contrary to a more liberal approach often permitted on the Federal level, that legislative power cannot be delegated; that legislation must contain adequate standards to guide and restrain the exercise of delegated administrative functions, including rule making; and that to avoid pure delegation of legislative power by creation of an administrative agency, the Legislature must set limits on such an agency‘s power and enjoin on it a certain course of procedure and rules of decision in performance of its function. Chartiers Valley Joint Schools v. County Board of School Directors of Allegheny County, 418 Pa. 520, 211 A.2d 487 (1965); Holgate Brothers Co. v. Bashore, 331 Pa. 255, 200 A. 672, 117 A.L.R. 639 (1938). Here the Sentencing Commission has been impermissibly allowed to make law, subject only to a legislative veto, and with no presentment to the governor.
While such a “legislative agency” might be valid if created by the British Parliament, subject only to supervision by the cabinet or the Prime Minister, such a system is not permitted under American law. Legislative oversight of an administrative agency may take place through the enactment of statutory guidelines and standards, establishment of rules of administrative procedure, use of legislative committees and sub-committees both in the annual appropriation process and for the purpose of considering whether further guidance through legislation may be needed, through constituent casework engaged in by individual legislators who informally investigate constituent grievances, or some combination of all of these. See, generally, Robinson, Gellhorn and Bruff, The Administrative Process, 3d.
HUTCHINSON, Justice, concurring and dissenting.
I concur in the majority‘s analysis distinguishing the provision in Section 244(c)(2) of the federal Immigration and Nationality Act, 66 Stat. 216, as amended,
Beginning with the creation of a Legislative Reference Bureau in 1909, Act of April 27, 1909, P.L. 208,2 the legislature has created about ten “legislative agencies,” most of which provide technical or informational services to that
(a) ....
(7) Establish a research and development program within the commission for the purpose of:
(i) Serving as a clearinghouse and information center for the collection, preparation and dissemination of information on Commonwealth sentencing practices.
(ii) Assisting and serving in a consulting capacity to State courts, departments and agencies in the development, maintenance and coordination of sound sentencing practices.
(8) Collect systematically the data obtained from studies, research and the empirical experience of public and private agencies concerning the sentencing processes.
(9) Publish data concerning the sentencing processes.
(10) Collect systematically and disseminate information concerning sentences actually imposed.
(11) Collect systematically and disseminate information regarding effectiveness of sentences imposed.
(12) Make recommendations to the General Assembly concerning modification or enactment of sentencing and correctional statutes which the commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy.
(b) Annual reports.—The commission shall report annually to the General Assembly, the Administrative Office of Pennsylvania Courts and the Governor on the activities of the commission.
Clearly, these functions could not be fulfilled by the members of the General Assembly in the course of the normal legislative process. The fruits of this broad research were to be recommendations, “Guidelines,” as to the appropriate sentences for felonies and misdemeanors,
I also concur in the majority‘s observation that the Constitution of Pennsylvania mandates that:
Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
The General Assembly may by concurrent resolution reject in their entirety any initial or subsequent guidelines adopted by the commission within 90 days of their publication in the Pennsylvania Bulletin pursuant to subsection (a)(2).
I must, however, respectfully dissent from the majority‘s inferences and conclusions derived from the foregoing premise. A concurrent resolution, other than an adjournment resolution, which has passed both Houses but has not been presented to the Governor, is simply precatory language which lacks the force of law. Such a resolution does not invalidate the first guidelines; a fortiori, it does not invalidate the subsequent guidelines which were properly adopted by the Commission and never rejected by either house.
Senate Concurrent Resolution, Serial No. 227, purporting to adopt the 1982 Sentencing Guidelines, was, like its 1981 predecessor on the subject, of no legal consequence. As a concurrent resolution, it would have required House action and gubernatorial approval to take effect. The majority‘s assumption that the resolution‘s adoption by the Senate somehow forestalled any rejection of the sentencing guidelines by the House misperceives the independence of two legislative chambers, in which identical or contradictory bills are regularly introduced according to the views of the
As a legislative agency, the Commission on Sentencing may have wisely chosen to accept its creator‘s views and, therefore, developed a new set of guidelines in 1982. There was no enforceable legal requirement that it do so. An ineffective rejection, whether by one or both Houses of the General Assembly, activates the language of
Initial and any subsequent guidelines adopted by the commission shall become effective 180 days after publication in the Pennsylvania Bulletin pursuant to subsection (a)(2) unless rejected in their entirety by the General Assembly by a concurrent resolution.
From this legislative history, the majority somehow concludes that a defendant found guilty of aggravated assault and possession of an instrument of crime on March 16, 1983, and sentenced in June of that year, should have been sentenced under guidelines which were effectively superseded on July 22, 1982. The majority and this writer have already concluded that the Sentencing Code is constitutionally sound. Supra at 1-2. Thus, whether or not the first set of guidelines would have been enforceable had they been challenged,5 the second set of guidelines, properly adopted by the Commission in accordance with provisions of the Code, were effective 180 days after their adoption.
These latter guidelines have been properly considered by the Montgomery County Court of Common Pleas in imposing a judgment of sentence on June 20, 1983. I would affirm its judgment and that of Superior Court.
I dissent. I would hold that the appellant, Gershom Sessoms, was lawfully sentenced in accordance with the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing (Commission), and which became effective pursuant to the duly enacted provisions of the enabling legislation,
The Commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant....
Act of 1980, Oct. 5, P.L. 693, No. 142, § 218(a),
§ 2155. Publication of guidelines for sentencing
(a) General rule.—The commission shall:
(1) Prior to adoption, publish in the Pennsylvania Bulletin all proposed initial and subsequent sentencing guidelines and hold public hearings not earlier than 30 days and not later than 60 days thereafter ...
* * *
(2) Publish in the Pennsylvania Bulletin all initial and subsequent sentencing guidelines as adopted by the Commission.
* * *
(b) Rejection by General Assembly.—The General Assembly may by concurrent resolution reject in their entirety any initial or subsequent guidelines adopted by
the commission within 90 days of their publication in the Pennsylvania Bulletin pursuant to subsection (a)(2).
At the time the Commission‘s first adopted guidelines were published, pursuant to
The majority holds that the concurrent resolution of the General Assembly rejecting the Commission‘s guidelines must have been presented to the Governor to be valid. In reaching this conclusion, the majority cites
Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
The constitutional requirement that orders, resolutions or votes which require the concurrence of both Houses of the Legislature,1 and every bill which shall have passed both Houses,2 shall be presented to the Governor applies only to those acts that constitute an “exercise of legislative power” by the General Assembly. I believe that the concurrent resolution rejecting the Commission‘s guidelines as originally published is not such an exercise. “‘An exercise of legislative power’ is an act that is legislative in purpose and effect.” Commonwealth v. Kuphal, 347 Pa.Super 572, 500 A.2d 1205, (1985) (Opinion by Wickersham, J., upholding the validity of the guidelines under which the appellant was sentenced). The act of the General Assembly in adopting a resolution rejecting the guidelines lacks the requisite legis-
After the Commission‘s adopted guidelines are published, no action on the part of either House of the Legislature is required for the guidelines to become effective. Until the specified statutory period of time goes by without rejection, the published guidelines are nothing more than potential guidelines. A resolution of the General Assembly rejecting the guidelines eliminates their potential to become effective and maintains the continued viability of the then existing sentencing criteria.
The General Assembly exercised legislative power when the enabling legislation was adopted. That legislation was sent on to the Governor, thus satisfying the presentment requirement of the Constitution.3 Thus, I would hold that the second guidelines adopted pursuant to the enabling legislation, and under which the appellant was sentenced, were duly adopted and are constitutionally valid.