Lead Opinion
OPINION
In this interlocutory appeal, we consider whether state legislators have standing to intervene in a challenge to the issuance of an executive order concerning direct care health workers. For the reasons that follow, we conclude that, in these circumstances, they do not because the legislators’ interests purportedly impacted by the executive order do not involve unique legislative prerogatives, but, rather, are interests common to the general citizenry which only remotely impact the legislators’ right to act as legislators. Thus, we affirm the order of the Commonwealth Court denying the legislators’ request to intervene.
The background to this appeal is uncontested. On February 27, 2015, Governor Tom Wolf issued Executive Order 2015-05, “Participant-Directed Home Care Services” (“Executive Order 2015-05” or “Executive Order”), which focuses on individuals who receive, and workers who provide, in-home medical and personal care. The Executive Order establishes, inter alia, an advisory group to ensure the quality of long-term personal assistance services to seniors and persons with disabilities, and a process by which workers who provide such care, and who are employed by the individuals they serve, may obtain a designated representative for discussions with the Secretary of Human Resources regarding various matters including, inter alia, wages and health and retirement benefits.
On April 6, 2015, Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Home Care Association, and United Cerebral Palsy of Pennsylvania filed a Petition for Review in the Commonwealth Court’s original jurisdiction pursuant to 42 Pa.C.S. § 761(a)(1), naming as respondents Appellees Governor Wolf and the Commonwealth of Pennsylvania, Department of Human Services, and the Office of Long Term Living. These petitioners asserted that Executive Order 2015-05 establishes organizational labor rights for domestic home care workers, but was issued without authorization and conflicts with existing
On April 20, 2015, Senate President Pro Tempore Joseph Scarnati, III, Senate Majority Leader Jake Corman, Senate Majority Whip John Gordner, and Senate Majority Appropriations Chairman Pat Browne, on behalf of the Pennsylvania Senate Majority Caucus (“Appellants”), filed an Application for Relief Seeking to Intervene (“Application to Intervene”) in both actions,
Two days later, the Commonwealth Court conducted a hearing on Petitioners’ request for a preliminary injunction, conducted by President Judge Dante Pellegri-ni. Initially, the court rejected Appellants’ attempt to directly intervene at the preliminary injunction stage. However, the court issued an order enjoining Governor Wolf from entering into any memorandum of understanding pursuant to Executive Order 2015-05 until disposition of the matter on the merits, establishing an expedited schedule for the filing of briefs on preliminary objections and cross-motions for summary relief, and listing the matter for en banc argument before the Commonwealth Court in September 2015.
On May 28, 2015, President Judge Pel-legrini heard oral argument on Appellants’ Application to Intervene, and, by a single judge opinion, he denied Appellants’ application on June 3, 2015. Noting the traditional test for standing — requiring an individual to be aggrieved, i.e., to have a substantial, direct, and immediate interest in the outcome of the litigation — President Judge Pellegrini considered caselaw analyzing standing for legislators. Observing that legislative standing rests upon a concrete injury suffered in the legislator’s official capacity, rather than a mere generalized grievance about the conduct of government that all citizens share, President Judge Pellegrini concluded that the interests impinged by the Governor were not unique, legislative interests, but, rather, were interests common to the general citizenry. In reaching this conclusion, he determined that, at its core, Appellants’ “sole basis for seeking intervention is that the Governor’s Executive Order is illegal and that every time he takes an illegal action, he violates separation-of-
On July 6, 2015, Appellants filed a notice of appeal with our Court, as well as jurisdictional statements and applications seeking expedited consideration of the appeals. On August 10, 2015, our Court noted probable jurisdiction and granted the applications for relief seeking expedited consideration.
The issue before our Court, as stated by Appellants, is “Whether legislative standing exists to challenge an executive order the origin of which has neither been authorized by the Constitution nor promulgated pursuant to statutory authority, thus constituting a violation of the Separation of Powers doctrine?” Appellants’ Brief at 5. As this issue raises a pure question of law, our standard of review is de novo, and our scope of review is plenary. In re Hickson,
Appellants maintain that Executive Order 2015-05 is an “unqualified and improper intrusion upon one branch by another,” and constitutes a “discernable and palpable infringement” on the legislators’ authority as legislators. Appellants’ Brief at 13. Analyzing prior caselaw on legislative standing, Appellants offer that legislators have “standing to challenge executive actions when specific powers unique to their functions under the Constitution are diminished or interfered with.” Appellants’ Brief at 16 (citing Wilt v. Beal, 26 Pa. Cmwlth. 298,
Appellees counter that Appellants’ challenge to Executive Order 2015-05 is merely a generalized complaint that the Governor violated the law; thus, Appellants do not satisfy the requirements for standing. Specifically, Appellees first note that, pursuant to the Pennsylvania Rules of Civil Procedure, in order to intervene, individuals must have standing, Pa.R.C.P. 2827(8), (4), and to establish standing, one must have an interest that is substantial, direct, and immediate. Pointing to Fumo, Appel-lees offer that legislators enjoy standing when “a diseernable and palpable infringement on their authority as legislators” is present, as compared to a general grievance about the correctness of governmental conduct, about which they do not have standing. Appellees’ Brief at 16 (quoting Fumo,
Initially, it is important to clarify the discrete issue which is before us in this appeal. Whether Executive Order 2015-OS is unconstitutional or in conflict with existing labor and health care laws is not before our Court. Rather, the only issue before us is whether Appellants were properly denied intervenor status, which, as discussed below, turns on whether they satisfy our standing requirements. Thus, as there is no question that Appellants otherwise properly sought to intervene,
In Pennsylvania, a party to litigation must establish as a threshold matter that he or she has standing to bring an action. Stilp v. Commonwealth,
In determining whether a party is aggrieved, courts consider whether the litigant has a substantial, direct, and immediate interest in the matter. To have a substantial interest, the concern in the outcome of the challenge must surpass “the common interest of all citizens in procuring obedience to the law.” Id. An interest is direct if it is an interest that mandates demonstration that the matter “caused harm to the party’s interest.” Id. Finally, the concern is immediate “if that causal connection is not remote or speculative.” City of Philadelphia,
Standing for legislators claiming an institutional injury is no different than traditional standing and, in order for legislators to bring a particular challenge, the legislators must satisfy the prudential standing criteria offered above. Indeed, our Court in Pittsburgh Palisades shied away from a special category of standing for legislators. Id. at 662 (“To be clear, by our decision today, we are in no way creating or es
Thus, with these general tenets of standing in hand, we turn to consider our Commonwealth’s caselaw applying these principles as they relate to legislators. Specifically, almost 40 years ago, in its foundational decision in Wilt, the Commonwealth Court addressed what was then an issue of first impression regarding the standing of a legislator. There, William Wilt, a member of the Pennsylvania House of Representatives, sought to enjoin Frank Beal, the Secretary of Public Welfare, and Grace Sloan, the State Treasurer, from operating the recently completed Altoona Geriatric Center as a mental-health-care facility, and to recoup monies expended in the purportedly improper operation of the center. Writing for the court, then-Commonwealth Court judge, later federal district judge, Glenn Mencer first noted federal standing decisions and concluded that they were in general agreement with the principles of standing in Pennsylvania. Reviewing federal decisions involving standing for legislators, the court noted that state senators were entitled to standing to challenge an alleged illegal tie-breaking vote cast by the lieutenant governor because the legislators had a “plain, direct and adequate interest in maintaining the effectiveness of their votes.” Wilt,
After consideration of this caselaw, the Commonwealth Court found what emerged was “the principle that legislators, as legislators, are granted standing to challenge executive actions when specific powers unique to their functions under the Constitution are diminished or interfered with. Once, however, votes which they are entitled to make have been cast and duly counted, their interest as legislators ceases.” Id. The court offered a hypothetical of such a deprivation through the duty of the Senate to approve or disapprove of certain gubernatorial appointments, and opined that interference with the performance of this duty would be an injury to the members sufficient to give standing. Applying this standard to the facts of the case, the court noted that Wilt’s complaint was that “the purpose of the bill for which he had voted has been frustrated, thus, depriving him of the effectiveness of his vote.” Id. The court rejected that argument, holding that once “Wilt’s vote had been duly counted and the bill signed into law, his connection with the transaction as a legislator was at an end.” Id. (emphasis original).
Three years later, in Zemprelli v. Thornburgh,
Thereafter, in another standing decision involving, among others, Senator Zemprel-li, our Court concluded that five senators had standing to challenge the computation of the constitutional majority of Senate members required for the confirmation of LeGree Daniels as a member of the State Tax Equalization Board. Zemprelli v. Daniels,
On appeal, our Court agreed and rejected the argument that the senators’ special interests expired upon their voting on the matter. Indeed, Chief Justice Henry O’Brien, writing for our Court, noted the injury directly related to the voting process itself, and, in rejecting the claim that the senators’ interests end upon casting their votes, quipped, “[w]here the voting process itself is not, as here, under attack, this argument might be persuasive.” Id. We concluded that the Senate President’s interpretation of the constitutional majority requirement effectively diluted the legislators’ votes by impacting the voting process, and, thus, that the action presented a cognizable injury to the objecting senators in their legislative capacity.
Finally, perhaps the clearest articulation of the distinction between a matter impli-
As a threshold matter, our Court considered whether the state legislators had standing to bring the action. After review of state and federal caselaw, we explained that “[ljegislators ... have been permitted to bring actions based upon their special status where there was a discernable and palpable infringement on their authority as legislators.” Fumo,
We then turned to apply these tenets of standing to the state legislators’ two distinct assertions of injury. As to their first claim regarding the construction license authority, the state legislators maintained that they enjoyed standing because only the General Assembly held the licensing authority, and the Department of Commerce usurped that exclusive licensing authority; they asked our Court to uphold their sole right as legislators to cast a vote or otherwise make a decision on licensing the use of the Commonwealth’s submerged lands. Id at 502. Our Court determined that, in light of the alleged exclusive right to vote on this specific licensure, this was the type of claim a legislator, qua legislator, had standing to pursue, as it “reflects the state legislators’ interest in maintaining the effectiveness of their legislative authority and their vote.” Id
The state legislators’ second claim challenged the manner in which the license was issued, and, specifically, the breach of an alleged duty to require that HSP provide evidence of deed or title to the submerged lands. Our Court noted that this claim did not “demonstrate any interference with or diminution in the state legislators’ authority as members of the General Assembly,” and amounted to “nothing more than the state legislators’ disagreement with the way in which the Commerce Director interpreted and executed her duties on behalf of the City.” Id Our Court reasoned that, as such, the legislators’ second claim was in the nature of a generalized grievance regarding the workings of government that all citizens shared, and, thus, the legislators lacked standing to pursue this claim.
Recent federal caselaw in this area, which has rejected the assertion of institutional injury as a basis for legislative standing, is entirely consistent with our Commonwealth’s approach. Indeed, in Fumo, our Court found persuasive the Third Circuit’s decision in Common Cause of Pennsylvania v. Commonwealth,
Even more relevantly, federal courts have denied standing to members of Congress who sought to enjoin executive action, and, specifically, implementation of an executive order which allegedly exceeded the President’s statutory and constitutional authority. See, e.g., Raines,
What emanates from our Commonwealth’s caselaw, and the analogous federal caselaw, is that legislative standing is appropriate only in limited circumstances. Standing exists only when a legislator’s direct and substantial interest in his or her ability to participate in the voting process is negatively impacted, see Wilt, or when he or she has suffered a concrete impairment or deprivation of an official power or authority to act as a legislator, see Fumo (finding standing due to alleged usurpation of legislators’ authority to vote on licensing). These are injuries personal to the legislator, as a legislator. By contrast, a legislator lacks standing where he or she has an indirect and less substantial interest in conduct outside the legislative forum which is unrelated to the voting or approval process, and akin to a general grievance about the correctness of governmental conduct, resulting in the standing requirement being unsatisfied. Id. (rejecting standing where legislators’ interest was merely disagreement with way administrator interpreted or executed her duties, and did not interfere with legislators’ authority as members of the General Assembly).
Upon consideration, we find that Appellants are not aggrieved, as that term is understood in the standing context, because their interests in the underlying challenge to Executive Order 2015-05 are too indirect and insubstantial. Executive Order 2015-05 does not inhibit or in any way impact Appellants’ ability to propose, vote on, or enact legislation. The order does not touch upon the constitutional or legislative prerequisites for the voting upon and enacting of legislation. Nor does the order prevent Appellants from acting as legislators with respect to advising, consenting, issuing, or approving matters within their scope of authority as legislators. Rather, the legislators’ claim of ag-grievement is only that the recently enacted Executive Order 2015-05 is a violation of the separation-of-powers doctrine, in that, they claim, it diminishes the effectiveness of, or is inconsistent with, prior-enacted legislation. Yet, these claims of injury reflect no impact on Appellants’ right to act as legislators, and are more, in our view, in the nature of a generalized grievance about the correctness of governmental conduct. Simply stated, the assertion that another branch of government — here, the executive branch through the Governor’s Executive Order — is diluting the substance of a previously-enacted statutory provision is not an injury which legislators, as legislators, have standing to pursue.
Indeed, taking the unprecedented step of allowing legislators standing to intervene in, or be a party to, any matter in which it is alleged that government action is inconsistent with existing legislation would entitle legislators to challenge virtually every interpretive executive order or action (or inaction). Similarly, it would seemingly permit legislators to join in any litigation in which a court might interpret statutory language in a manner purportedly inconsistent with legislative intent. Critically, Appellants offer no limiting principle which would permit their intervention in the instant matter, but constrain their ability to initiate litigation, seek declaratory relief, or to intervene in any matter which does not, under the principles we express today, impact them in their role of legislators.
Moreover, Appellants recognize there is comprehensive legislation on the topic which was enacted long ago, and, they do not suggest that they are in any way prevented from enacting future legislation in this area. Indeed, like our federal coun
Accordingly, we hold that Appellants’ interests purportedly impinged by Executive Order 2015-05 are not directly or substantially related to unique legislative prerogatives, but, rather, are generalized interests in the conduct of government common to the general citizenry; thus, they do not satisfy the requirements of standing in these circumstances. Accordingly, we affirm the Commonwealth Court’s denial of Appellants’ Application to Intervene.
Justices BAER, DONOHUE, DOUGHERTY and WECHT join the opinion.
Justice DONOHUE files a concurring opinion.
Justice DOUGHERTY files a concurring opinion.
Chief Justice SAYLOR files a dissenting opinion.
Notes
.Act of June 1, §§ 211.1-211.12, §§ 211.1-211.13. p Hrt N) . NO C/3 -H. S H 1 p-i § f'T ro Jo ON <3
. Act of July 23, 1970, P.L. 563, No. 195, §§ 101-2301, . as amended, 43 P.S. §§ 1101.101-1101.2301.
. As explained by Appellants, the Pennsylvania Senate organizes its members according to the two major political parties, Republican and Democratic. The two subordinate organizations which make up the Senate, Majority and Minority, are known as the Senate caucuses.” While the Pennsylvania Constitution does not employ the term "caucuses” to describe the organization of the Senate, the Majority Caucus and Minority Caucus are the two constituencies that comprise the Senate. Of course, the party that holds the most seats in the Senate is considered to be the "Majority Caucus.” Appellants’ Brief at 1-2 n. 1; see Precision Marketing Inc. v. Commonwealth, Republican Caucus of the Senate of Pennsylvania,
. We have jurisdiction over Appellants’ appeal from the Commonwealth’s order pursuant to Pa.R.A.P. 313. See In re The Bames Foundation,
. In the interim, the Commonwealth Court postponed oral argument before the court en banc, which, as noted above, was scheduled to be heard in September 2015.
. Additionally, Petitioners Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Home Care Association, and United Cerebral Palsy of Pennsylvania have filed a brief "to provide the Court with additional background in light of the importance of the matter,” addressing why, in their view, Executive Order 2015-05 is violative of the Pennsylvania Constitution and in conflict with various statutes. Petitioners' Brief at 1. Likewise, Petitioners Smith and Lambrecht filed a brief in support of Appellants, offering that Appellants could have been joined as original parties pursuant to Pa.R.C.P. 2327 or permitted to intervene to preserve the General Assembly’s legislative authority, and, thus, meet the requirements for standing.
. Intervention in a civil action is governed by Pa.R.C.P. 2327. Specifically, Rule 2327(3) and (4), "Who May Intervene,” provides in relevant part:
At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if ... (3) such person could have joined as an original party in the action or could have been joined therein; or (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.
Pa.R.C.P. 2327(3), (4).
. In the federal system, by contrast, standing is both constitutional, implicating Article Ill's case or controversy requirement, and prudential, involving judicial limits on federal jurisdiction. U.S. Const, art. Ill; Elk Grove Unified School District v. Newdow,
Concurrence Opinion
concurring.
I join in the Majority’s decision to affirm the Commonwealth Court’s decision with respect to the present application for intervention. I write separately only to note my disagreement with the Majority’s inclusion in its analysis of this Court’s prior decision in Fumo v. City of Philadelphia,
In my view, the Commonwealth Court’s description in Wilt v. Beal,
. Fumo represents an atypical instance in which this Court acted in contravention of our general proscription against issuing academic or advisory opinions. See, e.g., Philadelphia Entm’t & Dev. Partners, L.P. v. City of Philadelphia,
Concurrence Opinion
concurring.
I join the Majority Opinion in full, writing separately in supplementation out of respect for the Senate Majority Caucus, and to address additional points on the prudential doctrine of standing to sue.
I candidly acknowledge the underlying political pressures attending this matter. A Democratic Governor takes an action and a finite but important group of Republican legislators, representing the Senate Majority Caucus, currently seeks redress in the courts premised upon status as legislators. Of course, a future challenge could arise where the political affiliations are reversed. Legislative challenges to executive actions obviously exist along a continuum. A bipartisan challenge brought by the General Assembly as a whole premised upon a claim of an improper inroad into legislative prerogative, for example, presumably would present a stronger case for recognizing legislative standing than a claim forwarded by a single legislator (regardless of party affiliation).
Notably, the parties are in agreement on the governing law — the relevant principles and instructive application are set forth in Fumo v. City of Philadelphia,
In light of the “requirement of standing under Pennsylvania law [being] prudential in nature,” Pennsylvania de-cisional law is somewhat unclear in distinguishing a plaintiff who has been adversely affected and a plaintiff who is merely asserting interests common to all citizens in procuring obedience to the law. The result is a very flexible, if not amorphous, concept of standing to sue.
G. Ronald Darlington et al., 20 West Pennsylvania Appellate Practice Series, § 501:15, at 803 (2015-16 ed.) (footnotes omitted). The authors illustrate this flexibility by noting various theories employed to recognize standing. Notably, the Fumo decision itself reflects a nuanced approach specific to legislative standing.
Finally, as the Majority Opinion notes, it is significant this intervention dispute does not pose a situation where the lawfulness of the Governor’s Executive Order will proeeed unchallenged, and the Senate Majority Caucus was permitted to participate as amicus curiae. See Majority Opinion, at 145-46.
Under the circumstances, there is some force to this observation by appellees:
The Senators’ argument is particularly precarious, as there are 253 members of the General Assembly, each with his or her own political agendas and constituencies to protect. In this very case, Executive Order 2015-05 was defended by the Democratic caucuses in an amici curiae brief. That is the proper vehicle to show support for a position, not to become a party.
Brief for Appellees (No. 59 MAP 2015) at 25 (footnote omitted).
. Like the Majority Opinion, I recognize legislative standing does not involve a distinct or separate analytical approach to standing, albeit the reality is cases considering the standing of legislators in prior disputes obviously offer the most direct guidance.
. I am in respectful disagreement with Justice Donohue concerning Fumo's precedential value. See Concurring Opinion at 146-47 & n. 1 (Donohue, J.). The parties do not suggest any limitation on the precedent. Moreover, justiciability questions (including political question limitations, standing, ripeness, and mootness) are threshold matters generally to be resolved before proceeding to the merits. Robinson Twp. v. Commonwealth,
Moreover, there is no indication in Fumo that a question of mootness was raised in light of the decision in HSP Gaming L.P. v. City of Phila.,
Dissenting Opinion
dissenting.
I respectfully dissent, as I would recognize standing on the part of legislative leaders, acting on behalf of the Senate Majority Caucus, to intervene in the present proceedings to challenge Executive Order 2015-05 as ultra vires.
In the Pennsylvania Labor Relations Act,
Executive Order 2015-05 extends to the Attendant Care Services Act. See 4 Pa. Code § 7a.lll (defining. “Home care service programs”). It provides that an “employee organization” shall be elected to be the exclusive “representative” of direct care workers to “meet and confer” with the Department of Human Services regarding wages, hours, and other conditions of employment. 4 Pa.Code § 7a.ll3(a), (b)(2), (c); id. § 7a.ll4(b). This process may result in a “memorandum of mutual understanding,” which, “[w]hen appropriate, and with the approval of the Governor, ... will be implemented as the policy of the Department^]” Id. § 7a.ll3(d)(l).
From my point of view, the Majority Caucus has advanced a colorable claim that Executive Order 2015-05 does not reflect an implementation of existing law by the executive branch, but rather, evinces an exercise of lawmaking power reserved to the legislative branch. In such a scenario, I do not agree that the concerns of a majority of the membership of one house of the General Assembly can be aptly characterized as “generalized interests in the conduct of government common to the general citizenry.” Majority Opinion, at 146.
Rather, I subscribe to a more functional approach to legislative standing which would take into account the aggregation of legislative interest in the matter and the character of the claimed intrusion in terms of its impact on the status quo relative to salient public policy. Cf. Jonathan Remy Nash, A Functional Theory of Congressional Standing, 114 Mich. L.Rev. 339, 375-86 (2015). Along these lines, I am of the view that the Court should be sensitive to the concern being advanced, by a majority of the Senate, that alteration, by the Executive, of entitlements and interests impacts power and position both within the General Assembly and between the legislative and executive branches. Accord id.
For example, but for Executive Order 2015-05, there would be no need for the General Assembly to disapprove a “Direct Care Worker Representative.” In the face of this Executive Order and in the absence of judicial review, however, any faction of the Legislature wishing to negate the order will be required to expend the political capital necessary to effectuate the disapproval. Under a functional approach to legislative standing, and taking into account that review is being sought by a majority caucus, I conclude that sufficient injury has been alleged to confer standing.
While I share the majority’s concern with opening the door to a proliferation of challenges by legislators, I believe that taking into account the scale of the legislative interest, the colorability of the claim, and the presence or absence of political questions offers sufficient prudential limitations. While more specific parameters might be ideal, in my view, standing often devolves to an exercise in discernment. The alternative, in my view, is to deny a majority body of representatives of a coordinate branch of government the opportunity to participate directly in a serious constitutional challenge with a substantial functional impact on the General Assembly’s own constitutionally delegated powers.
. Act of June 1, 1937, P.L. 1168, No. 294, §§ 1-14 (as amended 43 P.S. §§ 211.1— 211.13).
. Act of Dec. 10, 1986, P.L. 1477, No. 150, §§ 1-8 (as amended 62 P.S. §§ 3051-3058).