Lead Opinion
We are called upon to consider whether the General Assembly, in enacting and later amending the Election Code,
Before relating the background of this case, it is necessary to establish, in broad strokes, the principle of state preemption of local lawmaking authority and its several forms. In Department of Licenses and Inspections, Board of License and Inspection Review v. Weber,
Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist. It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention, all ordinances touching the topic of exclusive control fade away into the limbo of ‘innocuous desuetude.’
Id. at 327. In addition to those two forms of preemption, respectively “express” and “field preemption,” there is also a third, “conflict preemption,” which acts to preempt any local law that contradicts or contravenes state law. See Mars Emergency Med. Servs. v. Township of Adams,
On December 18, 2003, the Philadelphia City Council passed an ordinance, effective January 1, 2004, establishing a $1000 limit on campaign contributions by “persons” to candidates for Mayor and City Council, and a $5000 limit on contributions by PACs. The Ordinance was amended on June 9, 2005, extending contribution limits to candidates for all other Philadelphia elective offices, and increasing the relevant limits to $2500 for individuals under § 20-1002(1) and $10,000 for non-individuals and PACs.
After disposing of the preliminary matters addressed supra n. 8, the trial court invited the parties to file motions for judgment on the pleadings with respect to the validity of the Ordinance. The parties complied, and on December 13, 2006, the trial court entered an order granting judgment on the pleadings in favor of the named defendants, those mayoral candidates who challenged the Ordinance, based on its determination that the Ordinance contravened the General Assembly’s intention to preempt all local ordinances affecting elections except as expressly provided. Because the Election Code contained no express authorization pursuant to which municipalities might impose local campaign finance limitations, Philadelphia lacked authority to enact the Ordinance. Thus, the court ruled the Ordinance invalid.
On appeal, the Commonwealth Court reversed. The court began by reviewing Philadelphia’s authority as a First Class City under the Home Rule Act. See 53 P.S. §§ 13101, et seq. (granting, and detailing, the self-government authority of cities of the first class); Pa. Const. Art. IX, § 2.
Notwithstanding the Home Rule Act’s grant of authority, the court noted, any enactment pursuant to that act’s authority is subject to the doctrine of preemption, which provides, generally, “that when the legislature has preempted a field the state has retained all regulatory and legislative power for itself and therefore prohibits local legislation in that area.” Id. at 56. Preemption, the court emphasized, is the exception and not the rule. Id. (citing Council of Middletown Township v. Benham,
Appellant Dougherty contends that conflict preemption precludes the Ordinance inasmuch as it contravenes the General Assembly’s intent. To that end, he directs our attention to our decision in Cali v. City of Philadelphia,
Appellant Fattah, who claims that field preemption bars the Ordinance, begins his argument with Article VII, § 6, of the Pennsylvania Constitution, which, he argues, requires “uniformity with respect to the laws that regulate elections.” Brief for Appellant Fattah at 8 (quoting Kuznik v. Westmoreland County Bd. of Comm’rs,
To illustrate the point, Fattah furnishes a lengthy list of election-related matters as to which the General Assembly has enacted broadly applicable guidelines. Turning to the areas of campaign contributions and expenditures, Fattah contends that “the Election Code sets forth a comprehensive regulatory scheme that deals with all aspects of contributions and expenditures,” citing two provisions of the Code. Brief for Appellant Fattah at 9 (citing 25 P.S. §§ 3253 (prohibiting campaign donations to candidates for office from most corporations, state and national banks, and partnerships), 3254
Appellant Fattah finds support for his position in aspects of the reenactment of Article XVI of the Election Code in 1978. See Act of Oct. 4, 1978, Pub.L. 893, No. 171; 25 P.S. §§ 3241-GO. In particular, Fattah contends that the amendatory 1978 enactment adopted the broad definitions of
Turning to this Court’s caselaw, Fattah argues that our holding in Mars EMS,
Appellees reject Dougherty’s “conflict preemption” argument on the basis that nothing in the Ordinance at issue is “contrary to” or “in limitation of” the Election Code. They note that the applicable standard for determining whether “conflict preemption” applies is strict, permitting such a ruling only when “the conflict between the statute and the ordinance is
Appellees consider and reject Appellant Dougherty’s reliance on this Court’s decision in Cali, the only authority he presents in support of his conflict preemption argument. Appellees observe that, in Cali, this Court did not rely on silence in finding that a Philadelphia ordinance governing the timing special mayoral elections conflicted with state law, but rather on express provisions inconsistent with the timing of the special election Philadelphia sought to hold. While the Philadelphia ordinance in question in Cali directed that a special election for a mayoral vacancy occur at the next municipal or general election, the Election Code provided that “all” city offices were to be elected at a municipal election. Reading “all” as “prima facie all-inclusive,” we found Philadelphia’s ordinance permitting the special mayoral election to occur in tandem with a general election patently irreconcilable with governing state law, and held that the ordinance was preempted. Thus, Appellees conclude, Dougherty’s conflict preemption argument must fail.
With respect to Appellants Fattah’s “field preemption” argument, Appellees contend that our caselaw is absolutely clear that we will only find the requisite tacit preemptive intent where that implication is essentially incontrovertible in the structure or subject matter of the state enactment in question.
Appellees also counter the notion that preemption should only be denied where the General Assembly has explicitly delegated some measure of authority to local bodies. Appellees acknowledge that, while our decisions in Mars EMS and Weber declining to find preemption both hinged on such delegations of authority, that is in no way required by law. Rather, those manifestations of legislative intent simply provided the straightest path to the resolution in those cases.
Even to the extent such delegations are necessary, however, Appellees argue that the Public Official and Employee Ethics Act, see Act of Oct. 4, 1978, P.L. 883, No. 170, § 2, as amended, 65 Pa.C.S. §§ 1101, et seq. (Ethics Act), which was enacted on the same day as the 1978 revisions to the Election Code, provides precisely such an express delegation. Appellees observe that the Ethics Act, too, contains a modest campaign contribution provision, see 65 Pa.C.S. § 1103,
We begin our analysis by reviewing the source of authority by which Philadelphia claims the prerogative to establish local campaign contribution limits. In Schweiker, this Court held that, “[u]nder the concept of home rule, ... the locality in question may legislate concerning municipal governance without express statutory warrant for each new ordinance; rather, its ability to exercise municipal functions is limited only by its home rule charter, the Pennsylvania Constitution, and the General Assembly.”
Notwithstanding the legislatures and our concomitant care to protect the authority of home rule municipalities, fundamental principles of preemption also apply to the courts consideration of whether a given municipal exercise of power is in fact limited by an act of the General Assembly. Preemption takes three forms, as noted, supra: express, conflict, and field preemption. See Mars EMS,
Only Appellant Dougherty argues that conflict preemption applies here, but the only regard in which he suggests that it does so depends on his claim that the Election Code manifests an affirmative intent to preclude any sort of campaign contribution limits. Dougherty, however, effectively admits that any such intent must be inferred from the Code, since the Code contains nothing directly on point. To that extent, however, the argument essentially sounds in field preemption rather than conflict preemption. Accordingly, the discussion collapses into that single inquiry.
Appellant Fattah would have us find preemption not in direct conflict but rather in the putatively comprehensive scheme of state regulation of elections that inheres in the combination of Article VII of our constitution and the Election Code. Article VII, § 6, of the Pennsylvania Constitution provides, in relevant part:
All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State, except that laws regulating and requiring the registration of electors may be enacted to apply to cities only: Provided, That such laws be uniform for the cities of the same class....
Pa. Const. art. VII, § 6 (language pertaining to voting machines omitted). In the first instance, therefore, we must address whether campaign contribution limits are “laws regulating the holding of elections by the citizens,” as there is no question that the registration of electors is not at issue in this case.
Appellant Fattah speaks to this question only by cursory reference to our citation of that provision in Kuznik,
Thus, we move to consider the prospect of conflicts with the enactments
The first problem with Fattah’s argument involves his failure to cite any authority to support his claim that the 1978 amendments to Pennsylvania’s Election Code were fashioned with a watchful eye on the corollary federal provisions. While the federal and Pennsylvania definitions of expenditure and contribution are undeniably similar, see supra n, 12, they are not so identical as to compel the conclusion that Pennsylvania’s definitions were adopted from federal law. We find it curious that neither Appellant Fattah, who forwards and argues extensively based upon the claim that the General Assembly expressly adopted the federal definitions at issue, nor the Commonwealth Court, which evidently accepted Fattah’s claim at face value, furnishes an iota of authority to demonstrate that the definitions similarities are reflective of anything more than a coincidence of concern for campaign finance active around the nation in the 1970s. Nothing in the statute itself, or in the historical references to the amendments in question, indicates that the General Assembly imagined itself to be adopting federal law as its own, which is notable because the General Assembly is not shy about acknowledging debts to federal law, where such exist.
The second problem with Fattah’s argument is that, even if Fattah’s eonclusory claims regarding the relationship between the 1978 amendments to our Election Code and the federal election code prevailing at that time have merit, so does the counter-interpretation ventured by Appellees — that the General Assembly’s silence as to campaign contribution limits did not manifest its desire to prevent such
The caselaw Fattah offers in support of his argument for field preemption, moreover, fails to support his position. In Mars EMS, Adams Township and Callery Borough each designated Quality Emergency Medical Services, Inc. (Quality), as its primary provider of emergency medical services. The Pennsylvania Department of Health, responsible for assigning all licensed emergency medical service providers to “primary response areas,” had designated Mars EMS and Quality to primary response areas encompassing both Adams and Callery. Following Adams’ and Callery’s designations, Mars EMS filed a complaint seeking injunctive relief on the basis that the EMS Act preempted Adams’ and Callery’s authority to designate Quality as their primary provider of emergency medical services.
On appeal of the Commonwealth Court’s decision upholding the designation and rejecting Mars EMS’s preemption argument, we first emphasized “that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation ... may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality....” Mars EMS,
Appellant Fattah’s reliance on Weber,
While this ruling to some extent sounded in the peculiar legislative histories of the two parallel acts, this Court nonetheless spoke to the broader issues of preemption implicated in the case. Specifically, the Court noted that:
The Legislature could not be expected to itemize the last towel and drop of antiseptic which, for sanitation and cleanliness, would be required in every barber and beauty shop in the State. The size of the municipality, congestion of population, geography of locale, weather and climate prevailing in the area could have a very decided bearing on the extent of the meticulousness of the sanitary supervision required in any particular group of shops. It would not be unnatural to assume that regulations could be stricter and more rigid in large cities where the turnover in clientele would be comparatively rapid as against a village or small rural center where the customers are known by their first name, occupation and frequency of visit.
Id. at 329. Furthermore, we quoted our Western Pennsylvania Restaurant Association decision to the effect that “[a] municipal corporation ... may make such additional regulations in aid and furtherance of the purposes of the general law.” Id. at 330 (quoting W. Penna. Rest. Ass’n,
Appellant Fattah’s reliance on these cases distils to the idea that, because in
In his argument from the Election Code, Appellant Fattah observes that the Code provides for
administrative supervision of election procedures, location of polling places, creation of precincts, equipment and arrangement of polling places, the dates of elections and primaries and special elections, the nomination of candidates, the filing of nomination papers, the examination of nomination certificates and papers, objections to nomination petitions and papers, the qualification of electors, filling of vacancies in nominations, recount procedures, the preparation for and conduct of primaries and elections, the registration of voters and absentee registration, the use of paper ballots, the arrangement of names on the ballot, the duties of election judges and poll watchers, the closing time of polls, the tabulation of votes, the resolution of contested elections and the use of absentee ballots.
Brief for Appellant Fattah at 9. Thus, he concludes that the Code aimed to comprehensively occupy the field of law pertaining to campaigns and elections.
Far from proving his point, however, this enumeration of statutorily controlled activities conversely suggests that when an Election Code so comprehensively deals with certain subjects yet fails materially to address itself to campaign contribution limits — especially where that omission is not identified as a function of legislative design to leave unfettered all such matters — it all but compels the inference that the legislature, in fact, intended not to foreclose local regulation of campaign contributions for local elections. Although the General Assembly may preempt such legislation, and has done so in enough other cases that its collective awareness of the value of so providing in explicit terms cannot be disputed, as of this writing it has not done so in the Election Code. Absent a clear legislative manifestation of such an intent, Appellants’ preemption arguments must fail.
Accordingly, the Commonwealth Court’s order, which upheld the validity of Philadelphia’s campaign finance ordinance, is affirmed; the case remanded; and our jurisdiction relinquished.
Notes
. See Act of June 3, 1937, Pub.L. 1333, § 1, as amended, 25 P.S. §§ 2600, et seq.
. Our order granting allowance of appeal limited our review to the following issue:
Whether the Philadelphia Code Chapter 20-1000, et seq. ("Campaign Finance Law”), which places limitations on political campaign contributions, is invalid under the Home Rule Act, 53 P.S. § 13133, because it is "contrary to, or in limitation of” the Pennsylvania Election Code where the Election Code already contains comprehensive provisions regulating the permissible size, type and manner of political campaign contributions, but also allows unlimited contributions in most instances?
Nutter v. Dougherty,
. All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State, except that laws regulating and requiring the registration of electors may be enacted to apply to cities only: Provided, That such laws be uniform for the cities of the same class, and except further, that the General Assembly shall, by general law, permit the use of voting machines, or other mechanical devices for registering or recording and computing the vote, at all elections or primaries, in any county, city, borough, incorporated town or township of the Commonwealth, at the option of the electors of such county, city, borough, incorporated town or township, without being obliged to require the use of such voting machines or mechanical devices in any other county, city, borough, incorporated town or township, under such regulations with reference thereto as the General Assembly may from time to time prescribe. The General Assembly may, from time to time, prescribe the number and duties of election officers in any political subdivisions of the Commonwealth in which voting machines or other mechanical devices authorized by this section may be used.
Pa Const Art. VII, § 6.
. Article IX, § 2, of the Pennsylvania Constitution, see infra n. 9, empowered the General Assembly to authorize Pennsylvania municipalities to enact Home Rule Charters entitling them to manage matters pertaining to municipal governance. The General Assembly so authorized Cities of the First Class, i.e., Philadelphia, see Act of April 21, 1949, Pub.L. 665, as amended, 53 P.S. §§ 13101, et seq., and soon thereafter Philadelphia enacted its Home Rule Charter pursuant to that authority. See City of Philadelphia v. Schweiker,
. On December 1, 2005, the Ordinance again was amended, this time to require candidates for local elective office, among others, to file campaign finance reports with the Board of Ethics.
. Because Appellants challenge Philadelphia’s prerogative to enact any meaningful legislation purporting to limit campaign contributions, the particulars of the Ordinance are immaterial to the discussion that follows. The entire Ordinance is reproduced as an Appendix to the Commonwealth Court Opinion. See Nutter,
. Only John Dougherty and Chaka Fattah appealed to this Court.
. What follows is an abbreviated account of the procedural history of the instant litigation. A more detailed rendering is provided in Commonwealth Court opinion from which this appeal arises. See Nutter,
The Commonwealth Court discussed at length numerous questions pertaining to the standing of the complainants to bring the instant suit and assertions that the case was rendered moot by some combination of the outcome of the intervening primaty (and now general) elections and the effect of Appellee Nutter’s failure to resign as a City Councilman prior to announcing his mayoral candidacy. We have dismissed these challenges by per curiam order, see Nutter v. Dougherty, 5-9 EAP 2007 (Pa. Oct. 4, 2007) (per curiam), reflecting our determinations that the parties have standing to litigate the issue in question, and that, given the brevity of election cycles and the amount of time it takes for litigation to reach this Court, the question presented is one capable of repetition and avoiding review, a limited exception to the doctrine of mootness applicable to this case. See Public Defender's Office of Venango County v. Venango County Court of Common Pleas,
. Pa. Const. Art. IX, § 2, provides:
Municipalities shall have the right and power to frame and adopt home rule charters. Adoption, amendment or repeal of a home rule charter shall be by referendum. The General Assembly shall provide the procedure by which a home rule charter may be framed and its adoption, amendment or repeal presented to the electors. If the General Assembly does not so provide, a home rule charter or a procedure for framing and presenting a home rule charter may be presented to the electors by initiative or by the governing body of the municipality. A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.
. Although we recount Appellant Dougherty’s argument on this point, and below consider Appellees’ response to it, upon closer examination, we conclude, infra, that the conflict preemption argument emerges as a field preemption argument in slightly different clothing.
. Section 3254 (Contributions by agents; anonymous contributions; cash contributions) provides;
(a) It shall be unlawful for any person to make any contribution with funds designated or given to him for the purpose by any other person, firm or corporation. Each person making a contribution shall do so only in his own name.
(b) It shall be unlawful for any candidate or political committee to disburse money received from an anonymous source. All such money shall be handed over to the State Treasurer within twenty (20) days of its receipt.
(c) It shall be unlawful for any person to make contributions of currency of the United States or currency of any foreign country to or for the benefit of any candidate which in the aggregate, exceed one hundred dollars ($100), with respect to any candidate for election.
See also id. § 3253 (constraining campaign-related contributions and expenditures by banks, corporations, and unincorporated associations).
. Compare 2 U.S.C. § 431(9)(A)(defining “expenditure” to include, inter alia, “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office”) with 25 P.S. § 3241(d)(defining “expenditure" to include, inter alia, "the payment, distribution, loan or advancement of money or any valuable thing by a candidate, political committee or other person for the purpose of influencing the outcome of an election"). Similarly, Appellant Fattah notes the close parallel between the federal and Pennsylvania definitions of “contribution.” Compare 2 U.S.C. § 431(8)(A)(defining "contribution” to include, inter alia, “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office”) with 25 P.S. § 3241(b) (defining "contribution” to include, inter alia, “any payment, gift, subscription, assessment, contract, payment for services, dues, loan, forbearance, advance or deposit of money or any valuable thing, to a candidate or political committee made for the purpose of influencing any election in this Commonwealth or for paying debts incurred by or for a candidate or committee before or after any election”).
. Fattah also notes that the General Assembly has delegated authority to local jurisdictions in election matters in various provisions of the Election Code, thus further warranting the inference of a contrary intent where, as in this case, the legislature fails to do so. See, e.g., 25 P.S. §§ 2641-42 (granting limited authority to county boards of elections).
. Ultimately, Appellees find this strict standard irrelevant insofar as they argue that there is no conflict between any state statute and the Ordinance to begin with, and thus no cause to analyze the Ordinance under principles of conflict preemption.
. Appellees Philadelphia and Nutter file separate briefs but collectively raise the same issues in response to Appellants' challenges. Accordingly, we refer to their arguments collectively.
. Section 1103 provides, inter alia, that
No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby.
65 Pa.C.S. § 1103(b).
. § 1932. Statutes in pari materia
(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.
(b) Statutes in pari materia shall be construed together, if possible, as one statute.
. Appellees also observe that 65 Pa.C.S. § 1112 asserts the Ethics Act’s preeminence over contrary legislation, providing that, “if the provisions of this chapter conflict with any other statute, ordinance, regulation or rule, the provisions of this chapter shall control."
. In his Reply Brief, Appellant Fattah rejects Appellees' reliance on the Ethics Act. Fattah argues that 65 Pa.C.S. §§ I103(b)-(c) aim to “prevent [] individuals from giving or receiving anything of monetary value with the expectation that the gift will somehow influence the public official. Under the Ethics Act, the size of a gift is relevant only in determining whether the gift must be publicly reported.” Reply Brief for Fattah at 2. Thus, Fattah maintains, the Ethics Act’s local supplementation provision, 65 Pa.C.S. § 111 I, contemplates only supplementary ordinances that directly serve to assure the public that influence is not for sale, which take the form of more stringent disclosure requirements, not contribution limits. As with the rest of Fattah’s arguments, however, this essentially hinges on the proposition that the General Assembly’s failure to enact statewide contribution limits necessarily betrayed its intention that no such limits may be applied by any government body in Pennsylvania.
This line of argument significantly undermines Appellant Fattah's view (and, for that matter, Judge Colins’ view, expressed in dissent in the Commonwealth Court, see Nutter,
. In reviewing this question of law, our standard of review is de novo and our scope of review is plenary. Schwartz v. Rockey,
. Appellant Dougherty’s resort to. Cali does nothing to resist this conclusion. Notwithstanding Dougherty’s attempt to read it otherwise, in Cali the legislature had not been silent on the relevant question. Rather, it had expressly limited the election of all municipal officers to municipal elections occurring in odd-numbered years. The proposed special mayoral election at issue did not satisfy these express, mandatory criteria; were consequently in conflict with state law; and therefore were preempted. See
. See, e.g., 7 P.S. § 703, Cmt.-1965 ("The result of making subsection (a) comparable to the Federal Reserve Act [12 U.S.C.A.] is to make several changes in the prior Code.”); 26 Pa.C.S. § 103, Jt. St. Govt. Comm. Cmt.-1971 ("This term ['Farm Operation'] is taken verbatim from the Federal act, 42 U.S.C. 4601(8).”); cf. 13 Pa.C.S.A. §§ 7301, Uniform Comm. Code Cmt. 1 ("The provision as to misdating in subsection (1) conforms to the policy of the amendment to the Federal Bills of Lading Act ... 49 U.S.C. Section 102____"), 8504, Uniform Commercial Code Cmt. 1 ("The locution 'shall promptly obtain and shall thereafter maintain’ is taken from the corresponding regulation under federal securities law, 17 C.F.R. § 240.15c3-3."); 23 Pa.C.S. § 7205, Uniform Law Cmts., 2001 Main Vol. (“Drawing on the precedent of the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A....”).
. This language is misleading inasmuch as it implies that we found express preemption in Allegheny Valley Bank. That case, in fact, was a field preemption case. See
. While reasonable minds may differ as to the degree to which contemporary electoral politics resemble a beauty pageant, it is difficult to dispute that some of the municipality-specific concerns cited in Weber, or others of that sort, may tend also to bear on the scale and effect of campaign contributions on local elections.
Dissenting Opinion
dissenting.
I respectfully dissent. I have no quibble with the manner in which the majority sets forth the law regarding the preemption doctrine. Like Judge Colins opined in the decision below, however, I disagree with the majority’s application of the law in the circumstances of this case. See Nutter v. Dougherty,
The majority opinion rests much of its conclusion on the silence of the General Assembly with regard to campaign contributions. Nevertheless, I conclude that silence in this case speaks volumes. As Judge Colins pointed out, the Legislature has addressed the field of campaign contributions
Furthermore, I share similar concerns to those raised by Judge Colins that the natural consequence of the majority’s opinion today will be the “balkanization of the Election Code,” since any locality will be free to adopt its own campaign financing regulations. Id. at 68. An inconsistent approach with regard to campaign finance limits among the various local entities would lead to confusion in the campaign rules, and, more importantly, completely undermine the uniformity the Election Code seeks to promote.
For these reasons, I must dissent.