Daylin LEACH, Minority Chairman of the Senate Judiciary Committee and Senator Representing the 17th Senatorial District, Vincent J. Hughes, Senator Representing the 7th Senatorial District, Lawrence M. Farnese, Senator Representing the 1st Senatorial District, Cherelle L. Parker, Representative for the 200th House District, Edward C. Gainey, Representative for the 24th House District, The City of Philadelphia, The City of Pittsburgh, and the City of Lancaster v. COMMONWEALTH of Pennsylvania, Mike Turzai, Speaker of the House of Representatives, Joseph B. Scarnati, President Pro Tempore of the Senate, Michaеl J. Stack, III, Lieutenant Governor of the Commonwealth of Pennsylvania, and Tom Wolf, Governor of the Commonwealth of Pennsylvania.
Supreme Court of Pennsylvania
June 20, 2016
141 A.3d 426
David Joseph Falcone, Esq., David R. Moffitt, Esq., Saul Ewing, LLP, Wayne, for Ocirne, Inc., et al.
Kenneth James Fleisher, Esq., Philip Alan Magen, Esq., Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., Philadelphia, for New Tees Co., L.P.
ORDER
PER CURIAM.
AND NOW, this 25th day of May, 2016, the appeal is dismissed as having been improvidently granted.
Justice WECHT dissents.
141 A.3d 426
Daylin LEACH, Minority Chairman of the Senate Judiciary Committee and Senator Representing the 17th Senatorial District, Vincent J. Hughes, Senator Representing the 7th Senatorial District, Lawrence M. Farnese, Senator Representing the 1st Senatorial District, Cherelle L. Parker, Representative for the 200th House District, Edward C. Gainey, Representative for the 24th House District, The City of Philadelphia, The City of Pittsburgh, and the City of Lancaster
v.
COMMONWEALTH of Pennsylvania, Mike Turzai, Speaker of the House of Representatives, Joseph B. Scarnati, President Pro Tempore of the Senate, Michael J. Stack, III, Lieutenant Governor of the Commonwealth of Pennsylvania, and Tom Wolf, Governor of the Commonwealth of Pennsylvania.
Appeal of Mike Turzai, Speaker of the House of Representatives аnd Joseph B. Scarnati, President Pro Tempore of the Senate.
Supreme Court of Pennsylvania.
Argued March 9, 2016.
Decided
Joshua M. Aurty, Esq., for City of Harrisburg, Amicus Curiae.
Paige Hennessey Forster, Esq., Reed Smith, L.L.P., Richard Lee Heppner, Esq., Kim M. Watterson, Esq., Pittsburgh, for Pennsylvania Coalition of Mayors Against Illegal Guns, Amicus Curiae.
Britain Richard Henry, Esq., McNelly and Goldstein LLC, for Firearm Owners Against Crime, Amicus Curiae, and The National Rifle Association of America, Amicus Curiae.
Jonathan Robert King, Esq., Kathy E. Ochroch, Esq., Blank Rome LLP, Philadelphia, for CeaseFirePA, Amicus Curiae.
James Patrick Hickey III, Esq., Michael Vincent Puppio Jr., Esq., Media, Nicholas Michael Orloff, Esq., Raffaele & Puppio, L.L.P., for Mike Turzai and Joseph B. Scarnati.
Martin Jay Black, Esq., Robert Louis Masterson, Esq., Dechert LLP, Philadelphia, for D. Leach, V. Hughes, L. Farnese, C. Parker, E. Gainey, City of PGH, City of Lancaster.
Eleonor N. Ewing, Esq., Richard Gerson Feder, Esq., City of Philadelphia Law Department, Philadelphia, for City of Philadelphia.
SAYLOR, C.J., EAKIN, BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
OPINION
Chief Justice SAYLOR.
This direct appeal involves a challenge to the regularity of the enactment of Act 192 of 2014. Our disposition centers on the challengers’ contention that the legislation violates the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution.
Act 192 began as House Bill 80 (“HB 80”), introduced in January 2013. In its initial form, HB 80 was a two-page bill which added the newly-defined offense of theft of secondary metal—such as copper and aluminum, or wire and cable used
by utilities and transportation agencies—to
The Senate Judiciary Committee added a section amending the existing trespass provision of the Crimes Code, see 18 Pа.C.S. § 3503, to specify that an individual who trespasses in order to steal secondary metal commits a first-degree misdemeanor as a “simple trespasser.” Id. § 3503(b.1)(1)(iv), (b.1)(2). The committee later made an additional revision to Section 3503 defining “secondary metal” by reference to the definition contained in Section 3935 (which, as noted, sets forth the new substantive offense). The bill’s title was updated to reflect these minor revisions. See HB 80, Printer’s No. 4284, at 1.
Meanwhile, in April 2013, a separate House bill, HB 1243, was introduced and began proceeding through the General Assembly. HB 1243 changed vаrious provisions of subchapter 61(A) of the Crimes Code, that is, the Pennsylvania Uniform Firearms Act of 1995. See 18 Pa.C.S. §§ 6101-6127 (“Firearms Act”). As amended on its second consideration in the House, the bill retained some of its original provisions and—important to this dispute—encompassed substantial additions to Section 6120, which generally prohibits counties and other municipalities from regulating the lawful ownership, possession, transfer, or transportation of firearms and ammunition. See 18 Pa.C.S. § 6120(a). These additions gave persons adversely affected by local gun-control laws standing to bring аn action against the municipality. Further, they broadly defined “person adversely affected” to include individuals and membership organizations. See HB 1243, Printer’s No. 4179, at 6-7 (revising 18 Pa.C.S. § 6120(a.2), (b)).1 HB 1243’s title, at this juncture, read as follows:
AN ACT Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in firearms and other dangerous articles, further providing for Pennsylvania State Police and for limitation on the regulation of firearms and ammunition.
HB 1243, Printer’s No. 4179, at 1.2
On October 15, 2014, HB 1243 substantive provisions were folded into HB 80, which now contained four substantive sections addressing: trespass for the purpose of unlawfully taking secondary metal from the premises; theft of secondary metal as an independent offense; state police disclosure of records; and standing for individuals or organizations to challenge local gun regulations. The bill’s title was updated to read:
AN ACT Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in burglary and other criminal intrusion, further providing for the offense of criminal trespass; defining the offense of theft of secondary
HB 80, Printer’s No. 4318, at 1. Shortly after the merger, both Houses of the General Assembly approved HB 80 in its final form. The bill became Act 192 when then-Governor Tom Corbett signed it into law on November 6, 2014.
Appellees—the cities of Philadelphia, Pittsburgh, and Lancaster, as well as several legislators who had voted against HB 80—filed a petition for review in the nature of a complaint in equity in the Commonwealth Court’s original jurisdiction, naming the Commonwealth, the Governor, the Lieutenant
The title mentioned the state police in reference to a sectiоn of the bill requiring the agency to send the federal government certain mental-health records which could affect a person’s ability to possess firearms under federal law. See id. at 5 (altering Section 6111.1 of the Firearms Act, 18 Pa.C.S. § 6111.1); 18 U.S.C. § 922(g)(3), (4).
Governor, and the Speaker of the House as respondents. The President pro tempore of the Senate was permitted to intervene as an additional respondent.3
In their complaint, Appellees asked the court to invalidate Act 192 on the basis that it violates Article III, Sections 1 and 3 of the state chаrter and to enjoin the Commonwealth from enforcing its provisions. See Pa. Const, art. III, §§ 1, 3 (stating, respectively, that “no bill shall be so altered or amended, on its passage through either House, as to change its original purpose[,]” and “[n]o 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”). As to Section 1, Appellees alleged that the act’s original purpose was to create сriminal penalties for the theft of secondary metal, and its purpose was later altered to include topics pertaining to state police reporting requirements and the creation of a new right of action against municipalities by individuals and organizations affected by local gun-control laws. They alleged that they were harmed by the manner in which this change was made late in the legislative process so that they, and the public, did not have adequate time to consider and comment on HB 80 in its final form. With regard to the Section 3 claim, Aрpellees stated that HB 80 contained more than one subject, thus depriving the General Assembly of the ability to vote with circumspection on its separate and unrelated provisions.
The legislative leaders filed preliminary objections in the nature of a demurrer, the Commonwealth filed preliminary objections asserting sovereign immunity, and the Governor filed preliminary objections stating that no cognizable claim had been raised against him. The Commonwealth Court approved the parties’ stipulation to discontinue the matter as to the Commonwеalth and the Governor, and it granted the Lieutenant Governor’s request to be dismissed as a respondent, leaving the legislative leaders as the sole remaining
respondents. Meanwhile, Appellees had moved for summary relief pursuant to appellate rule 1532(b). See Pa.R.A.P. 1532(b) (allowing the court to enter judgment “if the right of the applicant thereto is clear”).
With the parties’ cross-dispositive motions pending, the court granted Appellees’ request for summary relief, dismissed the legislative leaders’ demurrer as moot, and declared Act 192 unconstitutional. See Leach v. Commonwealth, 118 A.3d 1271 (Pa.Cmwlth.2015) (en banc). As to the single-subject requirement, the majority concluded that setting forth criminal penalties
The majority initially discussed the multiple purposes of the single-subject rule, including the curtailment of disfavored legislative practices such as logrolling and the inclusion at the last minute of unrelated provisions, as well as promotion of efficienсy in the legislative process. See id. at 1279. See generally City of Phila. v. Commonwealth, 575 Pa. 542, 573-75, 838 A.2d 566, 585-86 (2003).4 The opinion then moved into the application of the “germaneness” test which has come to characterize the judicial review of single-subject challenges. In doing so, the majority provided an extensive discussion of this Court’s decisions in City of Philadelphia, Pennsylvania State Ass’n of Jury Commissioners v. Commonwealth, 619 Pa.
369, 64 A.3d 611 (2013), and Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (2013), all of which sustained single-subject challenges. See Leach, 118 A.3d at 1280-82.
From these decisions, the Commonwealth Court majority framed the essential inquiry as determining whether the various subjects contained within the enactment under review “have a nexus to a common purpose,” or “are part of ‘a unifying scheme to accomplish a single purpose.’” Id. at 1282 (quoting, indirectly, City of Phila., 575 Pa. at 579, 838 A.2d at 589). Applying this test, the majority found that the primary subjects covered by Act 192—including, on the one hand, criminal penalties for theft of copper and aluminum and, on the other hand, the creation of a civil cause of action to challenge municipal firearms legislation—were so disparate as to lack any clear, common nexus. See id. at 1283. Thus, the majority discerned no single unifying subject to which all of Act 192’s subjects were germane.
The majority also disagreed with the legislative rеspondents that a unifying theme of “amending the Crimes Code” would suffice. In this regard, the majority likened this theme to the overly broad ones which were rejected by this Court in City of Philadelphia, Jury Commissioners, and Neiman. See id. at 1283; Marcavage v. Rendell, 936 A.2d 188, 193 (Pa. Cmwlth.2007) (en banc) (reasoning that “to conclude that the General Assembly could initiate a piece of legislation in the context of the Crimes Code and rely upon that concept as a unifying justification for amendments to bills under the Crimes Code that contain no nexus to the conduct to which the original legislation was directed would stretch the Supreme Court’s meaning of ‘reasonably broad terms’” (quoting Pеnnsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 318, 877 A.2d 383, 409 (2005) (“PAGE”))), aff‘d per curiam,
which an expansive class of parties may seek to invalidate municipal firearms legislation[.]” Leach, 118 A.3d at 1283; accord id. at 1284 (“The distinctions between criminal and civil remedies, between individual and municipal conduct, and between theft and enacting firearms regulation are so pronounced that they confound every effort to focus on a unifying theme.”).5
Judge McCullough filed a concurring and dissenting opinion focusing primarily on precedent. She opined that, under Ritter v. Commonwealth, 120 Pa.Cmwlth. 374, 548 A.2d 1317 (1988), aff‘d per curiam, 521 Pa. 536, 557 A.2d 1064 (1989)—which, she noted, has never been overruled—Act 192 comported with the single-subject requirement.6
However, she concluded that it failed the original-purpose test in light of Marcavage, in which the court found an Article III, Section 1 violation where a bill initially defined the offense of agricultural crop destruction but was later amended to, instead, expand the scope of the crime of ethnic intimidation. See Marcavage, 936 A.2d at 193-94. Overall, Judge McCullough expressed her concern that:
Under the Majority’s analysis, it is unclear how our legislature can amend the Crimes Code to comport with both the single-subject and original purpose rules: just amending one crime at a time; just amending the same type of crimes (e.g., property offenses, offenses against the person, etc.); just amending the penalties and/or the elements of all crimes; just creating new crimes; just amending collateral
measures for certain and/or аll kinds of crimes; or some combination of the above? Obviously, the legislature needs a degree of flexibility to amend the Crimes Code in an efficient and effective manner....
Leach, 118 A.3d at 1291 (McCullough, J., concurring and dissenting).
Presently, the legislative leaders argue that the Commonwealth Court majority erred in finding a single-subject violation because Act 192 is limited to the subject of amending the Crimes Code. They observe that Ritter, which also involved disparate Crimes Code amendments, has never been overruled or otherwise disapproved. Recognizing that Ritter was decided before City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003), the legislative leaders also draw support from two post-City of Philadelphia decisions.
The first is Spahn v. Zoning Board of Adjustment, 602 Pa. 83, 977 A.2d 1132 (2009), in which this Court considered a statute that amended the First Class City
The legislative leaders proffer that the Crimes Code can be described in similar terms (i.e., as a “single machine”), especially those aspects of the Code which were amended by Act
192. See Brief for Appellants at 20. As an example, they contend that the act grades criminal trespass for the purpose of stealing secondary metal as a first-degree misdemeanor, meaning that a person convicted of such offense would lack standing to bring a claim against a municipality under Section 6120(a.2) because he or she would not be allowed to own a firearm under federal law and, as such, would not be affected by local gun laws.7
In this latter respect, the legislative leaders also suggest that, if revising the Crimes Code is too broad a topic, all of the аct’s provisions fit within the narrower subject of amending portions of the Crimes Code “that involve the regulation of firearms or the ability to own a firearm.” Id. at 17.
Finally, the legislative leaders offer that the purpose of Article III, Section 3—to ensure that legislation is voted on with circumspection—was not undermined in the present case as there was an open and lively debate among legislators before the final bill was voted. Therefore, the legislative leaders couch Appellees’ action in challenging the legislation as attempting to attain through the courts what they were unable to achieve legislatively.
The National Rifle Association of America and the Firearm Owners Against Crime, as amici curiae supporting reversal, have filed a joint brief contending that the Commonwealth Court used an overly-superficial analysis by focusing on the mixing of criminal and civil provisions, whereas the theme which unifies all of Act 192’s provisions is the strengthening of penalties within the Crimes Code so as to deter certain conduct. They indicate that individuals who commit the offenses addressed in the act face stiffer penalties upon conviction, and municipalities that violate Pennsylvania’s longstanding firearms preemption law also face enhanced penalties as the result of a successful challenge. Overall, amici maintain that the Commonwealth Court was insufficiently deferential to the legislative prerogatives of the General Assembly.
Appellees initially criticize the legislative leaders to the degree they rely on cases decided before City of Philadelphia, a decision Appellees describe as a “watershed” ruling reasserting the judiciary’s “role in preserving constitutional order.” Brief for
Further, Appellees posit that the process by which Act 192 was passed exemplifies the circumstances that the single-subject rule was intended to curtail, as HB 80 was a non-controversial bill relating to the theft of copper and aluminum for all but the last few hours of its existence; then, for reasons of expediency, it was merged with an unrelated and controversial bill dealing with gun-control regulations in the final hours of a legislative session with a looming change in the Governor’s office. See id. at 24-25.
As to the single-subject inquiry itself, Appellees argue that the fact that Act 192’s provisions all revise aspects of the Crimes Code is a mere formality based on the number assigned by the Legislative Reference Bureau to the codified title. They assert that “crimes” is as broad as other proposed unifying topics rejected by this Court—such as “municipalities” in City of Philadelphia, “powers of county commissioners” in Jury Commissioners, and “judicial remedies and sanctions” or “refining civil remedies or relief” in Neiman—and that Act 192 does not relate solely to crimes in any event. In this respect, Appellees contend it is “fanciful” to suggest that Section 6120(a.2), which authorizes civil actions to challenge municipal legislation, pertains to the topic of crimes. Id. at 29 n.5.
Finally, Appellees take issue with the legislative leaders’ fallback position that the act’s unifying subject is amending aspects of the Crimes Code that involve the regulation of firearms or the ability to own a firearm. They maintain that theft of secondary metal cannot properly be viewed as a firearms offense and that the legislative leaders’ suggestiоn along these lines comprises a post hoc attempt to make an “abstruse connection” between the act’s parts. Id. at 31. Appellees urge this Court not to resolve the single-subject issue on such grounds, particularly as the rule is intended to promote a transparent process whereby the relationship between different portions of a bill are evident to other legislators and the public generally. See id.9
The historical background and purposes of Article III, Section 3 are now well traveled in our cases and will not be repeated here. Thus, we are left simply to apply the prevailing germaneness test. In doing so, we find ourselves in agreement, in all material respects, with the Commonwealth Court.
Like the Commonwealth Court, we respectfully disagree with the legislative leaders to the extent they suggest Act 192
Pa. at 580, 838 A.2d at 589 (rejecting “municipalities” as a unifying topic, since “‘municipalities’ is the subject of an entire Title of the Pennsylvania Consolidated Statutes”). The scope of the Crimes Code is similarly broad. It contains dozens of chapters which, among other things, define crimes and defenses, set penalties, establish victims’ rights and civil remedies, and regulate criminal history records. Insofar as the Commonwealth Court’s Ritter decision may be read to suggest otherwise, see supra note 6, it is disapproved.
We also find that the legislative leaders cannot prevail on their alternative theory that the act encompasses the subject of Crimes Code amendments involving the regulation of firearms or the ability to own a firearm. If this were Act 192’s overall subject, we discern no reasonable basis to include provisions defining the offenses of theft of secondary metal or trespass for the purpose of stealing secondary metal. Even if we accept, arguendo, that a conviction of such offenses may impinge upon the defendant’s ability to own a firearm under federal law, any connection to firearms predicated on that basis is simply too indirect and attenuated to allow the secondary-metal offenses reasonably to fall within the proposed subject.
Indeed, the manner in which the General Assembly fashioned the title of the act illustrates the point. The title begins by stating that the act amends the Crimes Code in regard to criminal trespass and theft of sеcondary metal (and their associated penalties). It continues: “and, in firearms and other dangerous articles, further providing for ... limitation on the regulation of firearms and ammunition.” Thus, the topic of limitations on local gun laws is set off from the offenses encompassed within the act, and it is only these municipal limitations that are stated to be relevant to firearms and other dangerous articles. The title, therefore, does not suggest that theft of secondary metal and criminal trespass to steal secondary metal were understood by the Legislature as relating in any direct way to the regulation of firearms or the ability to own a firearm.
As a final matter, we note that the above analysis is not intended to reflect a judicial evaluation of the wisdom or permissibility of legislative bargaining or deal-making. See generally Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L.Rev. at 829-33 (expressing that logrolling which spans multiple bills can occur and can at times be socially beneficial). Our sole concern is whether Act 192 comports with Article III, Section 3’s mandate that each bill contain but one subject. For thе reasons given, we hold that it does not satisfy that requirement. As the Commonwealth Court suggested, creating a civil cause of action for persons affected by local gun regulations is simply too far afield from the definition of new offenses relating to the theft of secondary metal to be considered part of one subject under Article III, Section 3.10
The order of the Commonwealth Court is affirmed.
Justices BAER, TODD, DONOHUE, DOUGHERTY and WECHT join the opinion.
Former Justice EAKIN did not participate in the consideration or decision of this case.