*1 ORDER
NOW, 22, 1999, March the order of the
Court of Philadelphia Common Pleas of
County, dated November and dock- May Term,
eted at 1997NO. is vacated. Judge
President did not COLINS
participate in the decision of this case. SOCIETY,
PENNSYLVANIA PRISON al., Petitioners, D.
Julia Hall et Pennsylvania;
COMMONWEALTH of Ridge,
Honorable Tom al., Respondents.
et Pennsylvania.
Commonwealth Court
Argued Nov. 1998.
Decided March
633 IV, 9, which were changes to Article Section Costopoulos, Lemoyne, C. Gerald William comprise Grimaud, Tunkhannock, Gregory Knight, question, H. posed Scranton, Preate, Harrisburg, A. and Robert or several amendments. one amendment closely petitioners. secondary for dispute, which is Their first, whether the At- concerns lated Koons, respon- Harrisburg, R. for Calvin statement,” torney “plain English dents. question, published with the ballot was which COLINS, Judge, and President Before dispute con- An was sufficient.1 additional SMITH, J., PELLEGRINI, McGINLEY, J., implemented, changes, as cerns whether J., J., J., FRIEDMAN, KELLEY, Ex Post Facto Clause violate FLAHERTY, J. Constitution.2 United States COLINS, Judge. President pleadings judgment on the A motion for original jurisdiction in this court’s Presently mo- this Court are cross before demurrer; opposing all of the nature of on allegations are viewed as true and Pennsyl- party’s respectively by petitioners, the specifical- Society, been D. Hall and others facts which have vania Prison Julia those (collectively, Society) may him be considered ly the Prison admitted Pennsyl- respondents, may only the Commonwealth against him. The court consider (col- vania, Ridge, Tom and others any themselves and docu- Commonwealth). lectively, the properly attached thereto. ments legality of parties dispute (Pa. Kane, 1156, 1157 Bergdoll v. 694 A.2d IV, Penn changes to Article Section 9 Cmwlth.1997), 55 M.D. pending, No. appeal Constitution, sylvania changes which were people vote of the Appeal “[A] Docket 1997. 4, approved on November electorate any- cannot and Constitutionalize validate question presented 1997. The ballot provision thing Con- which violates day posed as follows: voters on that was stitution, and ... this or issue Shall the Constitution Constitutionality justiciable after the vot- require a recom- amended to unanimous adopted provision....” such ers have of Pardons mendation of Board before 406, 412-13, 433 250 Kelley, v. Pa. Stander commute the the Governor omitted). (1969) 474, (emphasis A.2d 477 sentence of an individual sentenced dispute is whether primary imprison- criminal to death or life case 9 the Penn- to Article Section of ment, require only majority vote sylvania constitute one amend- ap- approve the the Senate to Governor’s they If consti- Board, amendments. several pointments substitute amendments, the ballot tute several and a cor- crime victim the voters submitting those amendments to expert for a rections XI, 1 of the Constitu- Article Section members? “[wjhen tion, provides two or 1 required by As they submitted shall be more amendments Constitution, separately.” The Prison upon shall be voted by two succes- approved amendments were question, Society asserts Assembly and of the General sive sessions to Article four amendments No- published months before the were three actually contained 9 but which parties’ general election. vember amendments, have been submit- should five primary dispute concerns whether the Com- required by District of Sec- the Middle statement is 1. The Code was Election After the ballot monwealth. (Election Code), 5, 1998, P.L. Act of June Society January proved, the Prison 19, 1986, February P.L. Act of added complaint States in the United filed an amended §P.S. 2621.1. District of Court for the Middle District 15, 1998, court, January remand- vania. That Society complaint Initially, Prison filed a Court. law claims ed the state 1997. That action Court on October this removed District Court for to the United States Griest, questions ted the voters as five Pa. wealth ex rel. contrast, approved separately. In the Com- A. monwealth asserts that the amendment con- is the fundamental law single question despite stituted a the fact Commonwealth, of our and matters re- parts, that it contained several all of because lating provi- *3 to alterations or in its parts pertained provision to one sions, the courts must exercise the most topic, Constitution and addressed one rigid preserve care people Pardons. right assured to them that instrument. No method amendment be tolerated “Where, here, as we must decide provide does not electorate ade- interpretations
between two of a constitu quate fully opportunity to be advised of provision, tional we favor must a natural changes. reading which avoids contradictions and diffi in implementation, culties which completely Commonwealth ex rel. General v. Beamish, 510, 515, 164 615, conforms to the intent of the framers and 309 Pa. A. 616-17 (1932). ratifying fully which reflects the views of vot must Not the electorate be er.” rel. proposed changes Commonwealth ex Paulinski v. advised of the to the Con Isaac, 467, 760, 766, 477, stitution, 483 Pa. A.2d 397 also all of the but Constitution’s denied, 918, 2841, cert. 442 U.S. 99 S.Ct. 61 requirements technical for amendment must (1979). L.Ed.2d 286 “A constitution is not to Amendments be observed.3 Constitu construction, receive a lightly technical or strained tion should not be taken or made XI, easily. but rather interpreted process the words should be described Article popular, ordinary their natural mean simple, straightfor and 1 is Section reserved for Harmon, ing.” Constitution, easily Commonwealth v. Pa. changes 469 ward to the de 490, (1976). 494-95, 895, 366 easily A.2d 897 and under scribed unteehnical, language “[W]here the is process used stood should not the voters. This people construed as the voted who be used to circumvent a constitutional con probably vention, [it] complex it[.]” understood process making O’Connor 390, 396, Constitution, Armstrong, v. 299 changes Pa. 149 A. as we believe (1930). 657 Amendment “an multiple is defined as al was done in this case. When by” process changes teration or important effected for our ramifications amending. Third Interna system justice proposed, Webster’s New are of criminal (1993). Dictionary here, tional 68 adequately Amend de be electorate cannot (as motion, bill, fined as “to changes follows: alter informed of the and effects constitution]) formally by brief, plain [or or law modifi and cation, deletion, addition.” Id. Consider statement. definitions, principles these we have agree Supreme We with the Court of Ore- doubt that no the word amendment in Article gon requirement that that amendments
XI,
single change
Section 1
means
separately
voted on
“serves as a safe-
be
Constitution.
guard
concept
is fundamental to
process
Kitzhaber,
amending
the Constitution
constitution.” Armatta v.
327 Or.
XI,
(1998).
described in Article
1
been
As our
has
959 P.2d
Griest,
Supreme
amending
Supreme
described
Court of
Court stated
i.e.,
all
power
lawmaking,
vania as “a concentration of
not
the Constitution is
people
organic
in establishing
making
changing
for the
legislation.
law
It is
law, i.e.,
lawmaking,
organic
“constitutionmaking.”
commonwealth....
It
our
function,
express
and separate
which is distinct
voters
their will
must
able to
specific
change
it is a
exercise of the
each
constitutional
substantive
people
separately, especially
changes
its constitution.”
if
are
make
Common-
these
Pennsylvania Supreme
existing mandatory
3. The
Court
has said
violations of
Constitutional
provisions
“all the
clear
mandated
permitted.”
will
strictly
obeyed
Constitution must
and
followed and
Kelley,
433 Pa.
lated summary, process that the In we hold unit, they complex to be made then are too amended Section was XI, described Article Sec- require- the Article tion 1. Those should be made ... be “two more amendments ment that convention, they where can be constitutional single ballot upon separately.” The voted adequately and understood. more debated on Novem- presented to the voters four amendments ber 1997 described question presented to the The ballot If these neglected to a fifth. describe 4, 1997, contained four voters on November they interrelated that were so amendments Constitution, *4 unit, they adopted as a should needed to be Society it ne and the Prison asserts a con- have submitted to constitutional been change. The glected to a fifth first describe modification, Otherwise, dele- each vention. change involved the Board of Pardon’s tion, have submitted or addition should been (Board) regarding prison recommendation question. separate to the voters as a er to life or death. For those prisoners, the recommendation to Board’s secondary dispute, parties’ The the Governor or commutation primary dispute, closely related their by changed to a unanimous vote of be Attorney adequacy the Gener involves the by majority the Board rather than vote. English plain statement. Section al’s change of the The second involved the vote Code, 2621.1, re of the Election 25 P.S. Senate to confirm the Governor’s nominees proposed constitutional quires that when required to the vote was Board. it published, accompanied be amendment changed majority vote of the Senate plain English [that “a in statement by majority rather than or two-thirds vote as Attorney prepared and] the General specified change by law. The third involved purpose, the limitations which indicates the substitution of a crime victim for the people of the of the ballot effects Board, and the member of the acknowledge the Commonwealth.” While we change the fourth involved substitution of General do that “the duties expert for the corrections depth providing in illustra include an not change The fifth was the Board. to the tion of how a amendment recog deletion of words “and shall be may public[,]”4 constitution affect fields,” phrase in their nized leaders required comply with Attorney General is appointed described the three members by de the Election Code 201.1 of the Governor. purpose, limitations and effects scribing He not do so question. did argues that the The Commonwealth dele- this case. phrase simply “was editorial tion of an Society that the changes agree with the Prison change other We necessitated purpose Board[,]” plain English statement confuses composition because (Com- description changes with a longer qualifier. made sense as 16.) however, (though it the deletion brief, changes omits agree, actual p. monwealth We recognized lead- Society, ques- phrase “and shall that the ballot Prison fields”). Additionally, the state- adequately ers tion did not describe the cursorily the effects and only describes the United ment to Article Section 9. What attempts limitations. General Supreme wrote about U.S. States Court plain En- requirements satisfy applies equally by restating the “Nothing put glish vania new Constitution: amendments, enough. The is not through but this except into the Constitution the ramifica- informed of Nothing electorate must be process. old can 'terms real life of the amendments Ull- process.” the same taken out without 1996) (Pa.Cmwlth. Assembly, 682 A.2d Party 4. Lincoln v. General why and of the reasons ORDER the General Assem- bly necessary. believes the amendments are NOW, day AND this 22nd of March plain statement’s indication judgment motion on the limitations, purposes, and effects of the Society filed Prison et al following: amendments is the is GRANTED. effect of the ballot
be to make it The motion for more difficult for individu- al sentenced to death or life Commonwealth of obtain et al is DENIED. commutation of sen- tence, to ease for Senate proval of the appointment Governor’s PELLEGRINI, Judge, dissenting. Pardons, the Board of and to ensure that respectfully majority’s dissent from the crime represented victims are holding question passed by voters at the November 1997 election amend- statement, however, This cannot serve to sat- Article Section 9 of the isfy all three En- (Amendment) was unconstitu- glish statement, gives and it the voters no tional because it explanation why as to were 1 of *5 by containing the more than changes might needed as to the how affect single one in question. a ballot Constitution, parts e.g., other of the Article also disagree holding with its (duties governor). Section We is null Amendment and void because the hold that the is inadequate to sat- “plain English statement” isfy of Section required by Section 201.1 of Election Code, 25, § Election P.S. 2621.1. Code,1 2621.1, 25 P.S. was deficient. dispute The additional between the question presented The ballot voters
parties concerns whether the amendments to was: Article Section offend the Ex Post Facto of Clause the United States Constitu Pennsylvania Shall the issue, tion. will not We address this because to require amended a recom- unanimous
jurisdiction over the federal claims was re of mendation the Board of Pardons before by tained the United States District Court Governor commute the for Middle Pennsylvania District of when of in sentence an a individual it remanded the state claims to this Court. criminal ease to or life death Although complaint the amended did contain only majority require a vote of the a claim based on Ex Post Facto Clause of approve appoint- Senate to the Governor’s Constitution, Pennsylvania question Board, ments to the and to substitute party was not briefed either and has been attorney crime victim for an and a correc- 21, Delcamp, waived. Harvilla v. 521 Pa. expert penologist for a Board A.2d members? Accordingly, 4,1997 the November vote on if question, passed, The ballot void, is null and as the TV, amend Article 9 of five contained amend- vania Constitution to read as follows: ments to the Constitution. The Pardoning power; Board of Pardons. on motion filed (a) by petitioners, except impeach- Prison Soci- In all criminal cases ety granted. et al is for judg- motion ment the Governor shall have forfeitures, ment respon- on remit fines and dents, prieves, par- the Commonwealth of et of commutation sentences and dons; al granted, is denied. no shall be nor 1. June P.S.§§ Act of P.L. added the Act 2600-3591. February of P.L. commuted, of victim” rather 3. Substitution a “crime except on the recom-
sentence
of
Board.
majority of the
than
writing
in
mendation
Pafdons,
and in the case
expert
of a corrections
Substitution
imprisonment,
death
sentence
member of
rather
than
in writ-
the unanimous recommendation
Board.
Pardons,
full
after
“and
phrase
shall be
5. Deletion of the
session,
public
in
hearing
open
upon due
in their field” which
recognized leaders
recommendation,
with
notice.
phrase
the three members
described
length, shall
deliv-
reasons therefor at
appointed
the Governor
copy
ered to
Governor and a
thereof
in
kept on file
office of the
shall be
Society,
ma-
Agreeing
the Prison
kept
Lieutenant Governor
a docket
jority
each of
holds that
those
purpose.
they
separate change, were all
because
(b) The Board of Pardons shall consist
question,
the same ballot
submitted
Lieutenant
who shall be
requirement
l’s
that each amend-
chairman,
three
General and
ques-
separate
be submitted
appointed
the Governor with
making
consti-
majority
[two-thirds or]
the consent of
itself unconstitutional.
tutional Amendment
[as
the members elected to the Senate
inexplicably
not relied
While
years.
specified by
law] for terms
six
deciding
majority in
that the ballot
appointed by
The three members
the Gov-
amendment, I
more than one
be
contained
ernor shall be residents of
case
controlled
our decision
lieve this
recognized
[and shall be
leaders
(Pa.Cmwlth.
Kane,
Bergdoll v.
add a the recommen- proval appointments of the Governor’s given by must dation that the Board of Pardons and to ensure that pardon Pardons before the Governor can represented crime victims are or commute of an the sentence individual in a criminal case to death or change provisions and to disagree majority I with the regarding appointing Board adequately explain statement does not composition members and the of the Board proposed changes explains the because it membership. purpose of the effect pro- ability Constitution now have on of an would individual except vides im- pardon all criminal cases ascertain a Under commutation. peachment, majority’s reasoning, the Governor has what would reprieves, grant quired satisfy provision commutation sentences of the Election párdons, on the recommen- Code not be a statement writing majority possible explaining every dation but a treatise con- sequence proposed the Board of Pardons. The amendment. require amendment would agreed majority if Even I with the that the unanimous recommendation deficient, before Governor could com- still would strike down the Amendment. mute the sentence an individual sen- may Assembly While the General be able to imprisonment. tenced to death or life enact laws that aid voters understand- require Constitution would continue to Amendment, those addition- only majority vote the Board to en- validity al cannot effect the able the Governor to passed by the amendment once the voters. commute a in- sentence criminal case proscribes *7 volving a sentence other than death or life in which it is be manner imprisonment. only a failure to follow those constitutional Pennsylvania pro- The Constitution now finding can be the basis for vides that of the Board of members improperly present- an that amendment Pardons are the Lieutenant Governor who Accordingly, ed to the once the voters. Chairman, General, Attorney is made passed, Attorney has amendment Gener- appointed by three members Gov- compliance compliance lack al’s or of with a ernor with the consent of two-thirds or English required by “plain statement” Pennsylvania majority of the as Senate the Election Code becomes a moot issue. provided law. the three Of members respectfully I Accordingly, dissent. Governor, appointed the Constitu- attorney, requires be an tion now that one KELLEY, Judge, dissenting. penologist, a one be a and one be doctor. respectfully dissent. The proposed amendment would eliminate option requiring ap- of On voters in the Governor’s November pointments presented of approved two-thirds Commonwealth were a ballot Senate, requiring appointments question regarding the of thus amendment Article Pennsylvania by only of approved majority be a Section 9 Constitu- replace proposed changes tion. All of contained Senate. The amendment would solely attorney and ex- of the Board with a in the related member ballot change clusively provisions of Sec- crime victim member and would
639 The of the Board of Pardons. As a members 9 and the Board of Pardons. tion require the result, proposed would amendment the amendment to of the Board adopted the voters of Penn unanimous recommendation Constitution pardon or com- 1997 not vio Governor could sylvania on November does before the sen- of Article of an individual provisions late the mute the sentence of Kane, Bergdoll imprisonment. See v. or life that constitution. tenced to death (Pa.Cmwlth.1997) (Dissenting require A.2d 1155 would continue Constitution J.) citing by Pelligrini, Andrews v. Opinion only majority the Board to en- vote of a 285, 449 Maryland, pardon 294 Md. a Governor to able the Meredith, (1982) A.2d 1144 and Hatcher in- in a criminal case commute a sentence Ky. 194, 173 S.W.2d than death or volving a sentence other imprisonment. addition, Pennsylva- it clear that the In is Attorney state- nia pro- now comports of the Board the members vides Pennsylvania Elec- with section 201.1 of the who are Lieutenant Governor Pardons majority, quoting Lincoln Code.1 The General, Chairman, Attorney made Assembly, A.2d 1326 Party v. General by the Gov- appointed members and three (Pa.Cmwlth.1996), correctly observes ernor with the consent two-thirds Attorney required pro- General majority of the Senate in-depth a pro- illustration of how vide provided law. Of the three public. may affect posed amendment Governor, by the the Constitu- appointed Rather, General attorney, requires that one be an tion now briefly purpose, limita- quired to describe the penologist, and one be doctor. one be question. tions and effects of ballot eliminate amendment would 2621.1; Party. Lincoln P.S. ap- requiring the Governor’s option provided by the Attor- The full statement pointments approved two-thirds ney Senate, General reads follows: requiring appointments thus majority of the approved only a Regarding General Statement replace would Senate. The amendment 1997-2 Joint Resolution the Board with member of Voting, Changes in Board of Pardons change member and would crime victim Appointment Composition Process and penologist to a as a the member described purpose is to expert. described as a corrections amend the The effect of provision concerning the recommen- add an individu- to make more difficult for given by that must be dation or life al sentenced to death Pardons before the Governor can of sen- or commutation to obtain commute the sentence an individual tence, for Senate to ease *8 a criminal case to death appointments proval of the Governor’s change provisions and Pardons, ensure regarding appointing process of on the represented victims are crime composition and the of the Board membership. (1997). Contrary major- Pennsylvania pro- 27 Pa.B. 3994 now determination, I except ity’s based on this im- in all criminal cases vides that conclude, Party, in Lincoln as we did has the to would peachment, the Governor fully fairly and Attorney General reprieves, commutation of sentences grant requirements of section complied with the pardons, recommen- on the Pennsylvania Election Code. writing majority of the dation 25 P.S. 2621.1. added 1. Act June P.L. February P.L. Act foregoing, Based on the I would conclude neither the
nor the Election Code vio- adoption
lated of the amendment
Constitution. Pennsyl- Because the voters in properly
vania exercised their inalienable and right
indefeasible to alter the basic form of government, duty it is our to heed their Bergdoll,
instructions.
ment on the filed Society al.,
vania Prison et
motion for et Commonwealth al.
W.H. & NEWBOLDS SON COMPA- SOLIDAY & COM-
NY/HOPPER
PANY, INC., Petitioner, Pennsylvania,
COMMONWEALTH of
Respondent. Pennsylvania.
Commonwealth Court of
Argued Feb. 1999. March
Decided