Rendell v. Pennsylvania State Ethics Commission

983A. 2d Pennsylvania, RENDELL, and John Edward Governor G. Pennsylvania Secretary Acting Quigley, of Conservation Resources, Appellees Natural

v. COMMISSION, Appellant STATE ETHICS PENNSYLVANIA Rendell, Pennsylvania, and Edward G. Governor Pennsylvania Secretary Hanger, Acting John Protection, Appellees Environmental Commission, Pennsylvania Appellant. State Ethics Pennsylvania. Supreme Court of Argued May 2009. Decided Nov. Hittie, Commission,

Robin M. PA Esq., State Ethics for (82 Pennsylvania State Ethics Commission MAP 2008). MAP Philip Merenstein,

Bruce Esq., Ralph Esq., G. Wellington, Adams, Lewis, Arlin M. Esq., Harrison Segal Schnader & L.L.P., Philadelphia; Gregory Eugene Dunlap, Esq., PA Gov- Counsel, ernor’s Office General Harrisburg, Governor Rendell, (82 2008). Quigley John MAP Merenstein, Philip

Bruce Esq., Ralph Esq., G. Wellington, Adams, Lewis, Arlin M. Esq., Schnader Segal Harrison & L.L.P., Philadelphia; Gregory Eugene Dunlap, Esq., PA Gov- Counsel, ernor’s Office General Harrisburg, for Governor (83 Rendell, 2008). Hanger MAP John C.J., CASTILLE, SAYLOR, EAKIN, BEFORE: ' BAER, TODD, GREENSPAN, McCAFFERY and JJ.

OPINION Justice SAYLOR.

This appeal concerns the issue of whether a non-profit corporation is a as the “business” term is defined in Pennsyl- vania’s Official Employee Public Act.1

The Ethics other among things, offi- prohibits public cials from engaging conduct that a conflict of constitutes 1103(a). § interest. See a Pa.C.S. Such conflict arises when a official or the public employee authority uses himself, his or her office for the private benefit of pecuniary member, family or a with he or “business which a member of family § his immediate is associated.” 65 Pa.C.S. 1102. The act defines “business” as: amended, (as §

1. Act of October P.L. No. 1101-1113) (the Act”). §§ Pa.C.S. "Ethics firm, en- proprietorship, sole Any partnership, Corporation, franchise, association, organization, self-employed terprise, receiver- stock individual, company, joint company, holding profit. ship, any legal entity organized trust or § 65 Pa.C.S. 1102. an 2007, Pennsylvania’s requested

In General Counsel April Pennsylvania from or advice counsel the advisory opinion Commission, whether, under Section inquiring Ethics State 1103(a) Depart- then-Secretary of the Ethics the (“DEP”) Secretary ment of Environmental Protection and Natural Resources Department of Conservation (“DCNR”) their recuse from required were themselves potential due to grant-making process respective departments’ case, In Secretary’s interest.2 wife conflicts of DCNR’s Society, Pennsylvania was Horticultural employed non-profit grant funding that has received organization case, per- In DEP’s husband Secretary’s DCNR. from the consulting receiving grants formed work projects instances, DEP. In office believed that both Governor’s an unnecessary, opinion recusal but additional sought was advice of counsel from the 65 Pa.C.S. Commission. See 1107(10), § advice (authorizing provide Commission matters). and opinions on such that both advisory opinions, the Commission concluded be in of the Ethics Act’s conflict

Secretaries would violation agencies’ in their provision they participated grant-making if It such entities. recommended processes involving conflict, the should someone appoint avoid such a Governor his or her Secretary’s outside each chain of command to take DiBerardinis, No. 07- See In re Case place process. (Pa. 30, 2007); In McGinty, re Case Apr. Comm’n (Pa. 30, 2007). Apr. No. 07-009 Ethics Comm’n positions, appoint- Both have since left their and new Secretaries By operation Appellate Rule of Procedure ments have occurred. however, 502(c), appeal abated and have has not the successors 502(c). parties. of discus- been See Pa.R.A.P. For ease substituted sion, "Appellees” generally refer to Governor and the term will former Secretaries. Secretaries, Both with the together (collectively, Governor for “Appellees”), petitions filed review addressed to both the appellate jurisdiction Commonwealth Court’s and to its origi- nal jurisdiction. appellate-jurisdiction The petitions sought review advisory opinions, alleging that the Commission had committed errors of law and that would opinions disrupt effective administration of state The government. original-jurisdiction petitions requested relief re- declaratory garding a number of issues in the opinions. raised The filed a motion to quash appeals prelimi- Commission objections. nary petitions The were then consolidated for disposition. 19, 2007, on December

Initially, the unanimous en banc Court, Comm’n, Commonwealth see Rendell v. State Ethics (Pa.Cmwlth.2007), 938 A.2d 554 granted the Commission’s quash motion to the appeal, granted the prelimi- Commission’s objections in nary part and denied them in part, permitted the declaratory action judgment go forward on two substan- (1) tive questions, namely: whether non-profit organizations are included in the definition of businesses under Section 1102 Act; (2) whether, of the Ethics a departmental when head interest, has a conflict of the Governor appoint must someone outside the department head’s chain of command to avoid the conflict. In response, Appellees and the Commission filed summary cross-motions for relief as to these issues.3 On October the en banc Commonwealth Court issued a published order, opinion and see Rendell v. State Comm’n, (Pa.Cmwlth.2008), 961 A.2d 209 concluding “business,” the term as defined in the Ethics ex- cludes non-profit conclusion, entities. In reaching this Carroll, court upon relied In re Nomination Pet. granting quash, the Commission’s motion to the Commonwealth advisory opinions Court concluded appealable that the were orders Agency under Section 702 of the Administrative Law. Pa.C.S. determination, § appeal 702. This Court allowed from that see Rendell Comm'n, (per State Ethics 958 A.2d 1044 curiam), present and consolidated the matter appeal. with the direct discontinued, however, appeal by leaving The allowance later was disposition only declaratory judgment issues from action that preliminary objections, survived as recited above. (2006), suggested 896 A.2d 566 where this Court mat- financial disclosures for election required

the context of ters, as defined is not business non-profit organization rejected In the court the Com- respect, the Ethics Act.4 this controlling that was not because mission’s contention Camll are not definitively non-profits it did not hold that businesses the Ethics Act. the Commonwealth Court Although underlie policies with the Commission that different agreed in connection with candidates’ financial requirements the Act’s conflicts by interest statements and with the avoidance of officials, it that the term “business” is specifically noted in the Act and indicated that it was not free to defined excluding this of that term as disregard interpretation Court’s Thus, in of the court non-profits. precedent, granted view Commission, it to the summary Appellees relief to and denied the would not be under a conflict of declaring that Secretaries Rendell, light interest. 961 A.2d at 216. In of its See the court declined to reach the second substantive disposition, the act requires appoint issue—whether Governor chain department someone outside the head’s of command the event of a conflict. id. at 216 n. 9. See Jubelirer, Leavitt, a

Judge joined by Judge Cohn filed had declared “busi- dissenting opinion, expressing Carroll ness” to be on the issue of whether it included non- ambiguous that, matters, profits. The dissent stated election Code, must with the pan be read materia Election which tempers protect definition of “business” to voter choice. Here, however, the salient rule of construction is that the as remedial should be construed to accom- legislation, liberally its of The plish goal avoiding appearance impropriety. out that pointed employees dissent contractors of non- may receive substantial profit corporations pecuniary gain occasioned a thus the non- governmental grant, rendering a profit for-profit corporation versus status of immaterial present within the framework of the issue. The dissent would Cordaro, ) Pilchesky (per 922 A.2d 877 curiam Cf. disclose, (holding that a candidate's failure to in his statement of interests, position for-profit financial a of a business his as director ballot). warranting entity constituted fatal defect his removal from have declaratory thus denied relief to Appellees ques- scope However, tion Act’s definition of business. the dissent have granted would them relief on the issue of whether Governor must appoint someone outside Secretary’s chain of command perform the grant-making function. latter respect, the dissent opined Secretary’s personal recusal be would sufficient to avoid the interest, conflict of particularly the Act impute as does not conflict based on a in a chain of command. person’s being (Cohn Jubelirer, J., id. at 217-19 dissenting).

The Commission filed a notice appeal from the Common- order, wealth Court’s limited to the issue of whether the court correctly interpreted entities, “business” exclude non-profit probable jurisdiction was noted.

Presently, the Commission argues legisla remedial tion designed promote public to trust in government, Ethics Act be liberally construed. See Maunus v. should 592, 598-600, State Comm’n. (1988).

1327-28 More specifically, Commission empha sizes that the Assembly expressly General in declared Section 1101.1(a) of the enactment that purpose its is to assure the citizens of Pennsylvania that the financial interests of their representatives public and will servants not conflict with their to the See duties Commonwealth.5 Brief for Commission at provision 5. That states: (a) Legislature hereby public Declarations. —The declares that office public any that personal gain trust and effort to realize financial through public compensation provided by office other than law is a strengthen violation of that trust. In order to and faith confi- people dence of the government, of this Commonwealth their Legislature people right further declares that the have a to be assured that the financial interests of of or holders nominees or candidates for public public office not public do conflict with the trust. Because government assuring confidence in can be best sustained officials, people impartiality public honesty chapter this liberally promote complete shall be construed to financial disclosure Furthermore, specified chapter. recognized as in this it is that clear guidelines guide public are in order employees needed to officials and Thus, their Assembly by chapter actions. the General intends clearly possible to define as represent as areas which those conflict with the trust. 1101.1(a). § 65 Pa.C.S face, that, its Section argues also The Commission corpora- any includes expressly of business

1102’s definition It submits qualification. without any organization, tion and (“or entity any legal definition phrase in the final indepen- and the disjunctive, the “or” is profit”), for organized an precludes in this clause “any” word use of the dent to qualification the “for profit” apply that would interpretation Further, av- the Commission organizations. corporations apply not for does “organized profit” qualifier that the ers extend to it not because does “organization,” “corporation” As in the definition. entities listed preceding all of the other are receiverships observes an the Commission example, profit. not organized is two- to Carroll regard with argument

The Commission’s had been First, that the Court Carroll it contends fold. rulings no had that the Commission erroneously misinformed considered businesses entities were non-profit to whether rulings, previous of its Citing act. several under the consistently interpreted it has submits that Commission 1102 to include non- in Section as it is defined term “business” Brief for Commis- organizations. corporations profit attempts the Commission Alternatively, at 29-30. sion holding arguing in Carroll distinguish decide the status definitively decision did the Cairoll respect with particularly the Ethics non-profits relationships. interests or financial involving situations in the Rather, any ambiguity decided that simply this Court favorably most should be construed of “business” definition access, it not be and that would ballot seeking to candidates for the petition a candidate’s nomination a fatal defect to Financial his fail to disclose on Statement candidate to non-profit corporation a involvement with Interests his nothing and that has no compensation he receives which interests. with his financial do removed). avers that The Commission is (emphasis Id. at 34 in- to the inapposite renders Carroll this factual distinction such, maintains that Carroll matter. As Commission stant cases to election as only applying distinguished should be failure to disclose non-financial' associa- involving candidate’s of Financial Interests filed with nomina- tions on Statement tion petitions.

In response, Appellees urge prior this Court to abide its of the In interpretation scope regard, of the Ethics Act. Carroll, view as Appellees rely heavily they holding which definitively non-profit organizations 1102 excludes Section from the In statutory definition “business.” addition to their more stare decisis general argument, Appellees contend that the plain language supports the conclu sion that entities are not non-profit covered statute. Appellees argue when several words are followed aby the natural modifying phrase, construction of the language demands that the modifying phrase be read as applicable all. Brief for at 10 Appellees (citing See Commonwealth v. Corp., Rosenbloom Fin. 325 A.2d (1974)). Further, aver Appellees there could be no legislative purpose excluding only a single catego nebulous businesses, ry non-profit entities,” i.e. non-profit “legal while within the act all including other non-profit corporations. id. at 13.

The issue for resolution is one of statutory interpreta tion; it is question subject therefore a of law to plenary review Court, by this in which our standard of review is de novo. See (Genesis Ventures), Gardner WCAB Health (2005). 372 n. 761 n. 4 Carroll, this Court credited the candidate’s argument core,

that the Ethics at its designed expose possible and, financial thereby, conflicts strengthen the citizens’ faith and confidence in their government by assuring the impartiali Carroll, ty public officials. See 586 Pa. at 896 A.2d at Accordingly, determining whether the candidate’s failure to disclose his unpaid directorship positions on the boards of two non-profit organizations constituted a fatal statement, defect to his financial disclosure the Court focused its closely attention most on the fact that no pecuniary other material gain positions flowed from the candidate’s with footnote, recog in In a the Court organizations question. of the term possible interpretations

nized that there were two in provision “business” as set forth the act’s definitional language stated to the extent the definitional generally favorably it be construed to the candidate ambiguous, should 10, n. office. id. at 638 n. 896 A.2d at 574 seeking See However, question” that the “distinct it highlighted Court to “whether and when a upon pertained was called decide failure to disclose non-financial associations on a Statement of Financial of the fatal trigger operation Interests should 637, in (emphasis original). defect rule.” Id. at 896 A.2d at 573 decision, subsequent dispositional section of the more over, that the crux of the issue repeatedly Camll stressed the candidate’s financial interests —his compensa concerned tion, or lack thereof—in with the in entity question; connection ever, rarely, if returned to the of the significance Court organizations’ non-profit status the context of the case. Thus, a close reveals that reading language Carroll to the of the term “business” was pertaining scope ancillary and, to the ultimately, unnecessary resolution the controver such, As it dicta left sy. open question, constituted for our whether the term present inquiry, “business” includes Alexander, non-profit corporations. See Barnes v. 232 U.S. (1914) 117, 120, 276, 277, 34 S.Ct. 58 L.Ed. 530 (observing certain in a “were prior opinion necessary remarks to the ... decision so that at least we are warranted in treating Edwards, question as at see also v. large”); S.E.C. 540 U.S. 396, 124 389, 892, 898,157 (2004); S.Ct. L.Ed.2d 813 Common (2005) 5, 15, Singley, wealth v. 582 Pa. 868 A.2d Bender, (citing Hunsberger v.

(1962) that a statement in which (finding prior opinion, clearly dicta, us”)). but merely binding upon was not decisional “is not Landsdowne, v. generally Borough Storch (1913) (“Courts only adjudicate 86 A. issues by in a to a directly necessary raised facts case solution involved.”); legal problems Virginia, Cohens U.S. (6 Wheat.) C.J.) 264, 399-400, (Marshall, 5 L.Ed. 257 cases). dicta is not (explaining why binding subsequent that, in recognize We our subsequent per curiam Order stated, fashion, in a Pilchesky, summary Court position Carroll stood for the that a non-profit organization entity does not constitute a business under the Ethics Act. See 1, 592 Pa. at 16 n. at 1. Pilchesky, 922 A.2d 877 n. The critical case, however, brought circumstance forward in that was that ballot individual access had seeking failed disclose his Thus, in a holdings organized financial institution for profit. any question of whether the Ethics Act’s definition of “busi ness” includes was non-profits necessarily non-dispositional. Moreover, characterization of Pilchesky’s Carroll does not reflect in-depth analysis an of the reasoning employed by that Finally, decision. it is worth noting that this Court did have the benefit of the Commission’s in advocacy either Car thus, and, roll or Pilchesky proceeded guidance without the administrative agency charged with overseeing imple mentation of the in question.6 statute agree

We with the suggestion from that the Carroll term “business” as contained in Section 1102 of reasonably can be construed to either include or exclude non Carroll., 10, profit entities. See 586 at Pa. 638 n. 896 A.2d at 574 n. It is 10. therefore ambiguous. generally See Trize Titus, Gateway 637, 652-53, chahn v. LLC 601 Pa. 976 A.2d 483 an (recognizing that ambiguity exists when there are at least two reasonable interpretations of the text review). Because this ambiguity, we must reference principles statutory construction to the legislative discern Commonwealth, 161, 172, intent. O’Rourke v. 1921(a) (2001); A.2d see § also 1 (providing Pa.C.S. object that the of all statutory construction is to ascertain and effectuate intent of the General Assembly). undertak ing analysis, our

we interpret statutory isolation, should not words in but must read them in they with reference to the context which Notably, a presented similar situation was Sackett Nationwide Co., (2007), Mut. Ins. 940 A.2d 329 wherein this Court granted reargument position Depart- to consider the of the Insurance ment. factors, as: the consider other such mayWe also

appear. attained; remedied; object and the to be mischief to be of particular interpretation. consequences O’Rourke, (citing Consulting A.2d 566 Pa. at at Bd., 522 Architects Licensure Eng’rs Pa. v. State Council of (1989), and 1 Pa.C.S. 1921(c)(3),(4), (6)). §§ 1102 of Act was approach Carroll’s Section

Certainly, result harsh would light consequence shaped removal of interpretation, specifically, from an alternative Here, however, no such concern candidate from ballot. exists, reasons to equally compelling and there are several For interpretation advocated the Commission. support one, “organized profit” qualifier when interpreting context, the end of appears it is notable that limitation at the definition, thus, of the and under the last-antecedent principle see, cases, statutory applied e.g., construction as in other 1153, PennDOT, 565, 10, v. 577 n. 769 A.2d McKinley (2001), item, “any legal n. it to the final only applies 1160 10 Inc. Payless Shoesource v. Travelers entity.” generally Inc., (D.Kan.2008) 1189, F.Supp.2d (sug- 1197 Companies, 569 the may applied that the last antecedent rule be where gesting such, to be the ambiguous).7 court finds As language problematic would be be- interpretation urged by Appellees absolute, 7. We are aware that the last-antecedent rule "is not but the Supreme 'quite it a United States Court has noted that is sensible as grammar,’ approach may generally applied in matter of and the be Pennsylvania contrary Dep't purpose.” evidence absence of of some of 651, Delaware, LLC, 638, 752, Banking 596 948 760 v. NCAS A.2d of 26, Thomas, 20, 376, (2008) (quoting Barnhart v. 540 U.S. 124 S.Ct. 381, (2003)). Appellees against argue application of 157 L.Ed.2d 333 interpreted by observing recently phrase, rule that this Court "stock, subsidiary corporations” of to refer to securities indebtedness subsidiary corporations, of as well as to their the stock securities Rosenbloom, 457 325 cited indebtedness. See Pa. at A.2d at different, entirely Appellees in Brief for at 11. That situation is as securities, indebtedness) (stock, aspects were all of the list items view, by corporations preposition, revealed “of.” In the list here, the last each element is a self-contained item with one followed question limiting language. interpretive whether limitation The is such only Accordingly, all there is applies to the last item or to the others. comparison legitimate present case. no between Rosenbloom it apply “organized profit” qualifier cause would for such are not nature receiverships; receiverships organized profit although theoretically they may generate profit, — (as out) at least sense generic Appellees point —but rather, for the of an the ultimate protection entity’s assets and of distribution those assets to creditors. See Commonwealth 549, 559, ex rel. Griffin, Corbett 946 A.2d (rejecting position qualifier ap- an end-of-list list, to all plied items because its to one of application the list’s items be improbable). would addition,

In aligns this construction with the Ethics legislation Act’s status as remedial designed promote public in government, particularly trust with regard to financial dealings public officials. See In re Benninghoff, 578 Pa. (2004) (“The obvious purpose of is to mandate disclosure the financial deal Carroll, officials.”); ings 586 Pa. at 896 A.2d at (“The intent and purpose Ethics Act is not shrouded 1922(5) in mystery.”); § see also Pa.C.S. (providing that the General Assembly presumed to intend to favor the public interest). against interest as any private light such a objective, clear it seems reasonable that a liberal interpreta tion of the term “business” is necessary to assure our citizens that the private financial interests of their public officials will not undermine the honest discharge of those officials’ public 1928(c); Maunus, § duties. 598-600, See Pa.C.S. 518 Pa. at 544 A.2d at 1327-28 (reasoning that the of the purpose Ethics Act is to ensure the “integrity and honesty employees of Commonwealth”). this For as the example, Commonwealth Court dissent developed:

It is inconsistent to allow one official public who earns $90,000 from a corporation employee as its or officer to conduct the Commonwealth’s with business that corporation while a different official public earning a similar salary may not conduct Commonwealth business with a different corpo- ration merely because one corporation non-profit and the other is for-profit. (Cohn

Rendell, Jubelirer, J., A.2d dissenting). at 218 Thus, regardless corporation receiving public of whether the organization funds is as a or a organized non-profit for-profit business, the where a appearance impropriety would exist public official or his member could realize a family pecuniary entity to such an if those stemmed gain grants grants from the official’s of his authority “use[of] [or her] § office.” 65 1102. Pa.C.S. matter,

As a final with interpretation is consistent 1102, which, understanding Commission’s of Section law, is entitled to deference. prevailing Pennsylvania Winslow-Quattlebaum v. Ins. generally Maryland Group, 629, 635, (explaining 752 A.2d when construing statutory language, courts are to afford substantial deference to the interpretation agency rendered administration).8 charged with its when we Accordingly, “organized prof consider the it” limitation in context of the language definitional as a whole objectives and in of the light legislative pertain statute ing to the avoidance of or the impropriety appearance of “business,” impropriety, ultimately we conclude that the term as defined Section 1102 of the Ethics should be interpreted to include entities. non-profit concurrence, Madame Justice Greenspan appears to merits, but, with our agree decision on its although parties considerations, do not raise prudential she would invoke such sponte deny concerns sua review. The set of first these is couched, in the concurring opinion, under the rubric of general Although recently suggested may tills Court that deference less be agency’s argument adopted accorded an administrative for the first pending litigation, generally Huntley & Huntley, time in see Inc. v. Oakmont, Borough Borough Council (2009), emphasizes applied the Commission it has its presently-advocated interpretation adjudications pre-dated (Pa. present litigation. Soltis-Sparano, See In re No. Case 94-054-C2 ("The 1997), unambiguous Comm'n Feb. at 31 clear and statutory language any corporation, including non-profit is that cor "), poration, reproduced is a 'business.' in Brief for Commission at Exh. G.

307 “justiciability.” “case or and controversy” Concurring See and 2, at at 2.9 Opinion, op. 812 & n. 988 A.2d 720 & n. Dissenting discrete including standing, ripe Several doctrines — ness, give and mootness-have evolved to the body general case controversy justiciability. notions of and v. Allen Cf. 750, 104 737, 3315, Wright, 3324, 468 U.S. 82 556 S.Ct. L.Ed.2d (1984) mootness, (identifying standing, ripeness, political question, as “doctrines cluster about Article III” [the] (citation omitted)).10 case or controversy requirement Under law, however, prevailing Pennsylvania standing the matter of is not available to be raised a court sponte. sua re See In 194, 201, Nomination Petition deYoung, 588 Pa. 903 A.2d of (2006) 1164, (“This 1168 Court has consistently held that a court prohibited raising issue of standing sua sponte.”).

Here, mootness, other than the matter of asserted the bulk of the in concerns raised including the allu- concurrence — sions to advisory opinions and hypothetical versus concrete impact within the standing umbrella of the it doctrine as —fall See, is understood in Pennsylvania. e.g., Pittsburgh Palisades Park, LLC, Commonwealth, 655, v. 888 A.2d advancing 9. position prudential her our considerations bar review, Greenspan Justice concerning relies on a number of decisions See, subject jurisdiction. e.g., Concurring courts’ matter Opinion, 2, alia, op. (citing, at 312 n. at Pennsylvania 983 A.2d 720 n. 2 inter R.R. PUC, 38, ("No Co. v. real or emergency, A.2d feared, alleged hardship complaining party, and no to a howev- er, great, justify entertaining passing upon can subject court's jurisdictional matter which is not competence.”)). witliin its There is case, however, no reasonable claim in this that the Commonwealth subject jurisdiction Court or this Court lacks engage matter ‘in straightforward statutory necessary exercise construction to resolve Indeed, present intergovernmental dispute. the concurrence other- appears implicitly acknowledge wise prudential that its focus is on matters, particularly development in its of the distinction between jurisdictional aspects case-or-controversy requirement federal prudential application and the principles Pennsylvania. similar Concurring Thus, Opinion, op. at 311 n. A.2d at 720 n. 1. concerning subject jurisdiction, line of decisions matter referenced concurrence, lacks relevance. Pennsylvania frequently courts have body found the extensive helpful addressing federal decisions standing prudential other See, e.g., City considerations. Fumo Philadelphia, 343-44, (2009). (2005) (“The do not render courts Commonwealth our

659 opinions; purely advisory offer in the abstract or decisions therewith, of arises from standing the requirement consistent only judicial appropriate intervention principle the (in- concrete[.]” is real controversy the and underlying when omitted)). Thus, marks and modifications quotation ternal as it case-or-controversy jurisprudence this under Court’s stands, are not available for consider- concerns simply these time, by any not been raised of at since have they ation this the parties.11 case-or-controversy jurispru

The second strand of dence, overlaps substantially standing. with See ripeness, 1240, F.3d Party Leahy, v. 145 generally Socialist Workers Cir.1998) (11th (“In cases involving pre-enforce 1244 -1245 one, previously ment such as this we have noted challenges tend the among justiciability lines the doctrines blur.”).12 if we were to peculiar Our would be indeed approach the components standing maintain that the of doctrine dis (including advisory-opinion hypothetical- cussed above consid aspects) sponte versus-concrete are unavailable sua courts, by yet may be considered sua eration the nonetheless (or, general more by restyling ripeness them as sponte simply justiciability) ly, case-or-controversy or concerns.13 analysis Parenthetically, standing 11. in terms of the substantive ad- concurrence, although opinion viability the vanced in the discusses statutory regulato- challenge application pre-enforcement of of recognizing ry provisions, line of it does not address the decisions availability challenge regulatory pre-enforcement context. of a See, Commonwealth, 198, 209-10, e.g., Co. v. 477 Arsenal Coal Gardner, 1333, (1984) (citing Labs. 387 U.S. A.2d 1339-40 Abbott v. 136, 1507, (1967)). 87 18 L.Ed.2d S.Ct. 681 standing ripeness Commenting overlap between on the doctrinal meaningful analysis, "Few courts one court has observed: draw dis- doctrines; hence, aspect justiciability the two tinctions between Basham, confused of the law.” Elend v. 471 is one of the most areas 1199, Alcock, (11th Cir.2006) Soc'y (quoting v. F.3d Wilderness (11th Cir.1996)). F.3d 389-90 degree remaining aspect ripeness doctrine 13. The concerns See, dispute. peculiar which the facts are relevant to resolution of the Webb, (5th Cir.2005) (observing e.g., 419 F.3d 413-414 LeClerc generally any remaining pre-enforcement ripe if that a action "is legal development” ... is not questions purely are further factual [and] Contrary Greenspan’s to Justice we do not perspective, overrule the line “implicitly long Pennsylvania Supreme decisions that have denied relief in the form of parties Court advisory opinions Declaratory Act.” Con- Judgment Rather, at 316 n. at n. 8. curring Opinion, op. merely we decide the discrete issue to us legal presented by in this parties appeal existing abide limitations sponte judicial sua review. mootness, Greenspan

Justice also raises the issue of although it also has not parties. been raised Concurring Opinion, op. at 983 A.2d at 722. recognize We past that this Court has in the considered such concerns of its See, Baeher, e.g., own accord. In re Estate (1993) curiam). (per indicated, A.2d 944 The never Court has however, that it is to obliged search outside the record to invoke mootness doctrine sua sponte, and we decline to do so here. case, narrow, focused,

In this we have before us a purely issue in legal sharp controversy between Appellees, including the Chief Executive Pennsylvania, Officer of indepen dent agency administrative with charged enforcement respon sibility relative obligations to ethical of government officials. Gross, 203, 210-11, In re Cf.

(expressing the special Court’s reluctance to consider moot issues). questions which raise constitutional The Governor has asserted that the of scope the issue extends well beyond the immediately affected parties. question The presented has been fully developed Court, the Commonwealth culminating in a published opinion which all agree Justices warrants correction, this via advocacy. Court able The extra- record factual circumstances raised Justice Greenspan have no impact the salient legal analysis, or on the Governor’s more abstract claim of standing, to which any challenge has been subject waived. The is an important provision Ethics which emphasizes maintenance of the public trust review). required judicial for effective It is difficult to envision a more legal inquiry responding focused Appellees' than directed effort to ''business,” question obtain a definitive answer to the whether the term Code, encompasses particular as used in the type entity. to direct officials and guidelines and the need for clear 1101.1(a) (“[T]he § in their actions. 65 Pa.C.S. employees as Assembly by chapter clearly intends define General the public those areas which conflict with possible represent trust.”). clarity, manifest intent for we

Despite Legislature’s (and agrees) Greenspan apparently have determined Justice materially review is that the of the Ethics provision Greenspan The advocated Justice ambiguous. procedure (which the courts are achieving clarity through charged enactments) re- entails interpretation legislative with themselves to ethical quiring public expose officials to investi- fines, gation penalties, civil criminal see 65 possible 1109(a), § and removal from office or termination from C.S. 7.173, meaningful § 4 Pa.Code in order to secure employment, review. circumstances,

In such we decline to reach outside the degree ongoing controversy record to assess the to which the developed out of the clear and well differences between arising Pennsylvania and the State Ethics Commis- Governor Indeed, so, sion is acute. were we to do it presently appears litigants might lay good availability claim to the great-public-importance capable-of-repetition-yet-evading- review exceptions Pap’s mootness doctrine. See A.M. (2002) Erie, 375, 391, 591, City 571 812 A.2d 600-01 of to the (alluding great-public-importance exception, particularly law); in in light clarity governing of material lack of Con- Nolan, 372, 383, sumers Educ. and Protective Ass’n v. 470 Pa. 675, declaratory 368 A.2d to dismiss a (declining the judgment grounds despite expiration action on mootness of the term for which one the status of an administra- claiming commissioner, tive “we conclude that explaining [legal such claimant’s entitlement to surrounding pres- issue office] of question capable repetition ents a sufficient that it to review at this importance ought escape appellate not time”). reversed, Court judgment

The Commonwealth is is for further consistent with proceedings case remanded Opinion.14 CASTILLE, BAER, Justice Justice EAKIN Chief join Justice TODD and Justice McCAFFERY the opinion. a concurring opinion. Justice GREENSPAN files GREENSPAN, Justice concurring.

If issue of whether the term “business” used in as Ethics Act a “non-profit includes had arisen in corporation” the context of an actual investigation by the Ethics Commis- sion and subsequent prosecution former Mi- Secretaries chael DiBerardinis and Kathleen McGinty then I would have wholeheartedly joined However, the majority it opinion. as not, I did must I separately write because believe that this important prudential case an issue implicates regarding judi- restraint, cial or the case controversy doctrine.1 I realize that the parties have not discussed the application of the doctrine Nevertheless, minimum, their briefs. I believe at a it response Greenspan's concerning to Justice comments the above line, 10, Concurring Opinion, op. order see at n. 983 A.2d at 724 n. 10, spell it an appellate this Court's task to out for intermediate original jurisdiction steps court or court of all which must be taken concern, when a case is returned it after our review. Our foremost elsewhere, us, arguments rendering here and is to address before us, scope appeal within decision as it as we reaches have Here, elsewhere, by merely done here. returning we have concluded original jurisdiction accomplish the matter to the court of whatever Presumably, remains be done. the Commonwealth Court will for- mally judgment enter favorable to State Ethics Commission consis- opinion tent with this and close the case. cases, controversy" 1. In federal the "case or doctrine two has sources: judicially self-imposed United States Constitution and limitations grounds. prudential evolved Elk Grove School Dist. v. Unified Newdow, (2004). By U.S. S.Ct. 159 L.Ed.2d 98 comparison, Pennsylvania, state constitution not contain does Hickson, controversy case or clause. In re 821 A.2d Nonetheless, (2003). recognized 1243 n. 5 the doctrine is well Pennsylvania employed and has been to control access to courts. See Gross, (1978) (holding In re that a case controversy stages litigation). exist at all must 312 this Court to address the and for appropriate necessary

is the issues.2 reaching before substantive limitations prudential vacate the I believe that this Court should Respectfully, is, in my decision as decision Court’s Commonwealth Declaratory Neither nor the advisory. the opinion, the Com- jurisprudence permit Act or this Court’s Judgment advisory opinions. to issue monwealth or Court Court Remedy at law advisory for several opinion

The Commonwealth Court’s of the of Secretary Department reasons. To former begin, (DCNR) DiBer- Natural Michael Conservation and Resources ardinis, Secretary Department former of Environmental (DEP) McGinty, Protection Kathleen Edward Governor (collectively any cogniza- Rendell did not Appellees) G. assert injuries provide ble for which Commonwealth Court could legal remedy. judgment by The entered the Commonwealth hypothetical an academic answer to a situation provides Court declaratory that had at the time that yet happen to filed.3 judgment action was justiciability authority

2. This to raise the issue of sua Court has controversy sponte parties. where there is no case or between Comm'n, 34, Pennsylvania R.R. Co. v. Pa. Util. Pub. 422, (1959) (sua sponte vacating Superior 424 an order of Court on regulation ground agency no jurisdiction that court had to review impact upon regulatory "where the rule had been visited of never railroad”); Org. appellant Run Civic Bd. Comm’rs Pheasant of of 1231, (hold A.2d Township, Penn 60 Pa.Cmwlth. 430 1233 controversy ing ripe judicial interven that where there is no case or raise, duty sponte necessary, if tion sua the issue of “[a] court has action, may jurisdiction power parties confer its to hear an and the not subject of over a cause of action or the matter an action consent or Commonwealth, Servs., agreement”); Dept. Rich v. Gen. of (1989) (holding A.2d n. 6 that the existence Cmwlth. jurisdictional controversy may a case is a issue that be raised sua or court); Employees sponte City Mgmt. Ass'n v. Civil Prof'l (Pa.Cmwlth. 1998), appeal City, Serv. Comm’n denied, A.2d (1999) (holding a case 740 A.2d 1149 jurisdictional sponte). controversy inquiry is court could raise it sua so Indeed, happen they likely hypothetical not are events did nor longer McGinty no happen Mr. DiBerardinis and Ms. are because parties DCNR and The notified the Court secretaries of the DEP. herein changed caption this case and as a result the docket have been secretaries, obviously do reflect the of the current who substitution provided the Commonwealth Court with the fol- Appellees lowing hypothetical sought opinion scenario and the they exposed liability. court as to whether would be to In McGinty the of Mr. DiBerardinis and Ms. were spouses associated with entities. Ms. Mr. non-profit Reilly, Joan spouse, Pennsylvania DiBerardinis’s is a of the Hor- manager (PHS), Hausker, Society ticultural while Dr. Karl Ms. McGin- ty’s spouse, was an contractor associated with independent (EESI). Solutions, Enterprising Environmental Inc. In the past, applied grants applied PHS for to the DCNR and EESI for to the DEP. Both grants expected entities but had not to the the applied grants respective departments by time the was in present declaratory judgment commenced the Commonwealth Court. Mr. DiBerardinis and Ms. McGinty were in expected participate grant processes award their respective departments yet participated by but had not the time the in present declaratory judgment was filed Commonwealth Court. an

Appellees filed action the Commonwealth seek- Court that, scenario, ing hypothetical declaration in the Mr. DiBer- ardinis McGinty and Ms. would not have been violating the Ethics Act.4 The depended decision on the interpretation of “business,” the term as used the Ethics Act so the parties asked the Commonwealth to issue an opinion Court on the meaning however, of the term.5 In general, a judgment Yet, alleged personal instigated have the conflicts that this lawsuit. litigants fact that neither the former secretaries nor current could any litigation appear any receive relief from this does not to have effect view, majority's my

on the discussion of the law. this is because the opinion legal any change deals with the issue in the abstract and legal analysis. circumstances does not affect the Appellees sought 4. first the same relief Ethics Commission. Commission, permitted by The Ethics advisory which is statute to issue opinions, opinion McGinty issued an that Mr. DiBerardinis and Ms. exposed liability they hypothetical would be if were to act as in the filing declaratory judgment subject scenario. In addition to to this opinion, Appellees appealed advisory also the Ethics Commission’s opinions. Appellees appeals, only Because withdrew the the declarato- ry judgment action remains before us. actions, declaratory judgment In their Appellees raised a total of ten issues, (10) majority required interpretation of which scenario not a

declaring hypothetical the law based on law. remedy recognized Pennsylvania Philadelphia Partners, L.P. City of Phila., Entm’t and Dev. that courts of the “should (holding Commonwealth or render give questions advisory answers academic or make decisions based on assertions as to

opinions hypothet future”). Indeed, ical occur in the such a might events nothing advisory declaration would amount to more than an counsel, opinion-an like the advice of their own opinion merely Appellees consequences would alert to the legal possible future actions.6

Nor does the Ethics Act open doors to court for §§ to seek such a 65 Appellees remedy. See Pa.C.S. 1101— Act, the Ethics state like Appellees may Under officials obtain an advisory opinion the Ethics Commission. See from (11). 1107(10), However, § 65 Pa.C.S. Act Ethics contains provisions no allowing Appellees to obtain the same in court. Thus, the provides statutory Ethics Act no for recogniz- basis ing remedy sought by Appellees.

Finally, the Act Declaratory Judgment also does not provide Appellees with a remedy this situation. to the According Declaratory Judgment purpose its is “remedial.” 42 7541(a). § Pa.C.S. A provides “remedial law” “means to enforce or Dictionary rights injuries.” redress Black’s Law (8th ed.1999). As remedy, to the the Declaratory Judg- ment Act states that deed, will,

Any person contract, interested under a written contract, or other a writings constituting lights, or whose status, legal statute, or other by relations are a affected eight Act. The Commonwealth Court dismissed issues on ground supported by hypothetical that these were not even facts Comm'n, by Appellees. described Rendell v. Pa. Ethics (Pa.Cmwlth.2007). 561 n. 6 The Commonwealth a Court issued deci issues, remaining subject appeal, sion on the two which are the of this hypothetical based on the facts. majority recognizes opinions 6. The that the Ethics Commission issued 295-98, Appellees advisory. Maj. Op. were at 983 A.2d at 710-11. Appellees procedural posture were in the same before the Common- Commission; therefore, they wealth Court as were before the Ethics ordinance, contract, franchise, or deter- municipal may have mined or any question validity arising construction of statute, ordinance, instrument, contract, fran- under the chise, status, and obtain a declaration or other rights, legal relations thereunder. added). § (emphasis Pa.C.S. statute,

Under the plain language only persons who statute,” here, “are a affected Ethics Act seek a may added). declaratory judgment. § (emphasis Pa.C.S. Declaratory The Act Judgment remedy does not a provide or, be persons remotely, who will even more may be affected by the statute. above,

As noted here Appellees sought declaration the Commonwealth Court that the term “business” as used in the Ethics did not include non-profit corporations. The expressed harm for which Mr. McGinty DiBerardinis Ms. sought “declaration” —the Declaratory Judgment Act reme- dy civil they feared or criminal prosecution for —was engaging in the conduct. described The harm described Governor Rendell was that he was “denied the have right to the official of choosing carry out duties responsi- [his] [the bilities of secretary].” 1; Brief Appellees’ Reply at also see Appellees’ Brief at 17. in my

Respectfully, opinion, expressed harms were future, but present hypothetical harms for which the Declara- tory Judgment does provide relief. See 42 Pa.C.S. all, § 7533. After Mr. DiBerardinis and had not McGinty Ms. engaged hypothetical in the conduct the time the declarato- (nor ry judgment action they was filed ever in would engage conduct) that and Governor Rendell not deprived was their of services. The Declaratory Judgment provide Act does not a remedy only when a potential injury 42 is averred. Pa.C.S. Thus, § 7533.7 because Appellees asserted only potential logic dictates that the Commonwealth opinion equally Court’s adviso- ry. recognize I majority opinion 7. that the is in with line a view that its expressed author past "primary has in the that purpose the and direct Declaratory Judgment grant Act ... was to authorize to courts declaratory objections in relief the face of such represented that relief giving advisory opinions the adjudication of rather than contro- of

316 action, that I would hold declaratory judgment in

injury their that advisory opinion an the Commonwealth Court issued Cnty. v. Butler Sch. be vacated. See Gulnac South should Dist., (1991) 699, 483, (holding “[a] 702 that 587 A.2d employed must not be determine declaratory judgment or for may in of never occur anticipation events which rights a medium for the rendition of moot cases or as consideration aca be may prove purely an which advisory opinion of Co., supra.8 Railroad Pennsylvania demic”); Wickett, 595, Mutual v. Pa. 763 A.2d versies." Nationwide Ins. Co. 563 813, (2000) Pittsburgh (Saylor, dissenting); J. see also Palisades Park, Commonwealth, 196, 655, (2005) Pa. 888 A.2d 663-664 LLC v. Court, however, (Saylor, dissenting). recently specifically This and J. 4; rejected Pittsburgh n. position in Palisades Park. 888 A.2d at 661 that Co., Co. v. Accident and Indem. see also Vale Chem. Hartford (1986) (noting "[a]lthough 516 A.2d 687 n. 2 requirement Declaratory Judgment Act traditional that a relaxes the not, controversy existing dispute, case or must an it does involve not, entry advisory opinion"). permit could of an Further, implicitly should overrule the I do not believe that this Court long Pennsylvania Supreme line Court decisions that have denied of Declaratory parties advisoiy opinions of relief in the form 4; Park, Judgment Pittsburgh Vale Act. 888 A.2d at 661 n. Palisades 702; 2; Gulnac, Co., Pa. State Chem. 516 A.2d at n. A.2d at Commonwealth, Lodge Fraternal Order Police 131 Pa.Cmwlth. (1990), affirmed, 591 A.2d 1054 rights ("[djeclaratory judgment appropriate is not to determine occur; anticipation may appropriate of events which never it is an remedy only presents antagonistic indicating where a case claims First, litigation”). any parties imminent and inevitable do not offer Second, arguments support position. of such a such a decision departure prudential would be a drastic traditional standards that Rather, implicitly. if were to should not be undertaken this Court decisions, put openly decide to do as to overrule these it should so so public suspect notice of this relief. I that there are avenue of persons opportunity an who would welcome to obtain an numerous advisoiy legal opinion from courts of the on various Commonwealth topics. my legislature's limiting opinion, policy relief under the Declaratory Judgment persons presently Act to who are affected is First, legislature sound. it is the role not of the courts set By policy. issuing opinions forth Commonwealth's vacuum, controversy parties, without an actual between the courts Second, interfering legislature's opin- with would be role. broad vacuum, are, advisoiy opinions necessarily ions in a cannot issued exceptions may implications possible consider arise if the true appear only parties before the court. One look at In interested need re Carroll, (2006), by A.2d cited Pet. Nomination Mootness alternative,

In the should dismiss this action as Court are no McGinty moot because Ms. and Mr. DiBerardinis DCNR, reflected secretaries of the DEP and as longer Kallinger, and in the Commonwealth v. caption. docket (1992) (sua sponte dismissing appeal Pa. 615 A.2d 730 moot). Because the was present litigation precipitated secretaries, circumstances to the former their succes- personal in this matter. personal sors cannot claim to have a interest Further, that the secretaries with conflicts of given potential office, interest described in this case are no longer harm —not longer alleged being Governor also no faces his able to use the services of his chosen secretaries certain review grant processes. any why do not raise as to we should

Appellees arguments limitation make an here to the exception prudential against Dixon, review court of moot cases. See Commonwealth v. 472-73 that “an (holding appellate

court decide a case where issues to the may important public involved, question interest are the nature of the under consid- again, eration is such that it will arise and review will be thwarted if strict rules of are repeatedly applied”). mootness Also, subject there is no reason to believe that the issue to this appeal capable repetition and would review if not escape decided here. In the event that this scenario was to occur again, secretary involved could conform to the Ethics in a advisory opinion challenge prosecution Commission’s or it Therefore, for a violation.9 we should at refrain least Majority application depending to see that the of the law differs controversy. Finally, controversy of a context the case or doctrine important preserving judicial ensuring anis tool for resources and brought by persons immediately cases are who affected receive the appropriate attention from courts. By my reading, procedure challenging this is the Ethics Act requirements. persons purview If fall those who (i.e., officials) change public requirements Ethics Act wish to procedure, they apply legislature should to the for such amendments places higher recognize I and not to courts. that the Ethics Act public burden of disclosure and conduct on officials than on other Pennsylvanians. These officials have some relief in the form of declaratory an issuing advisory opinion and dismiss these actions moot. judgment

Conclusion

Because I believe that erroneous- Commonwealth Court reached the merits of the ly Appellants’ declaratory judgment justiciabili- action where it have it for lack of should dismissed Commonwealth Court’s decision. I vacate the ty, would Gulnac, 587 A.2d at 702 lower court (vacating opinion action).10 non-justiciable reached the merits of a improperly 983 A.2d 1199 Pennsylvania, Appellee COMMONWEALTH of VanDIVNER, Appellant. W. James Supreme Pennsylvania. Court of July Commission, duty interpret advice from the Ethics which has a to prior any Act place Ethics to violation. The does not Indeed, duty authority same on courts. courts have no to issue adviso- ry opinions under the prohibited Ethics Act and are otherwise doing prudential grounds. so on There is no reason to make an exception against issuing advisory opinions to the rule public simply positions. officials because of their These knew officials and, obligations arguably, the conduct and disclosure of elected office may position Pennsylvanians change be in a better than other these requirements by appealing legislature. majority opinion 10. The reverses remands to the Commonwealth proceedings. Court for further It is unclear to me what further action the Commonwealth provide Court could take or what relief it could Quigley Hanger, newly appointed the Governor or to John and John acting replaced McGinty secretaries who Ms. and Mr. DiBerardinis at issue, pragmatic the DCNR and DEP. In addition to the a remand highlights justiciability problems Stilp in this matter. See v. Com- monwealth, (Pa.Commw.2006) (dismissing 781-82 action against ground controversy the Governor that no case or existed parties petitioner wrong by between the because did aver a manifest Governor).

Case Details

Case Name: Rendell v. Pennsylvania State Ethics Commission

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 30, 2009

Citation: 983 A.2d 708

Docket Number: 82 MAP 2008, 83 MAP 2008

Court Abbreviation: Pa.