Stilp v. Commonwealth

A.2d 918 STILP, Appellant Gene

v. Casey, Jr., Pennsylvania, Trea Robert P. of COMMONWEALTH Pennsylvania, Jubelir of Robert C. of the Commonwealth surer Tempore Pennsylvania Senate, M. er, John Pro of President Appellees. Representatives, Perzel, Speaker of of the House Herron, Appellant The Honorable John W.

v. Jubelirer, Pennsylvania, C. President Robert of Commonwealth Pennsyl Tempore of Pro of the Commonwealth Senate Perzel, Representatives Speaker vania, of the House of John M. Attorney Corbett, Pennsylvania, Tom of the Commonwealth Pennsylvania, P. Robert General of the Commonwealth Pennsylva Jr., Casey, Treasurer of the Commonwealth State nia, Appellees. Brown, Jr., T. the Honorable Frank Charles C. Honorable Kunselman,

Hazel, K. the Honorable the Honorable Robert Meehan, Benjamin Hon Lerner, the Honorable A. William Joseph A. Timothy O’Reilly, Patrick Honorable orable Smyth, Appellants

v. Pennsylvania, Casey, P. Robert Commonwealth Jr., State Treasurer of Commonwealth Appellees

Pennsylvania, Corbett, Pennsylvania, Thomas W. Commonwealth Jr., Attorney General, Intervenor. Pennsylvania.

Supreme Court of Argued April 2006. Sept. 2006.

Decided Reargument 8 and Denied Nov. in No. 151 2005. Appellant pro se MAP Stilp,

Gene Widoff, PA Inc. and Harrisburg, Sweep, P. for Clean Mark 151 MAP amici curiae No. RocktheCapital.org., appellant 2005. Thom- Keisling, Harrisburg, for Speaker,

Peter Bret James LLP, as, Hafer, curiae in amicus No. appellant Thomas & 2005. MAP Koons, Corbett, Neuhau- Gregory R. Thomas R.

Calvin W. Smith, ser, Knorr, III, L. for the Harrisburg, Amanda John G. PA, 151 MAP 2005 and EAP 2005. appellee Com. Nos. Bloom, Hodg- C. Dymek, F. Thomas Clark Jonathan Walter Perzel, son, Jr., Philadel- Greenspan, M. Leslie Miller John Perzel, MAP 2005 and appellee for M. Nos. 151 phia, John EAP 2005. Krill, Jubelirer, Jr., Shorey, Linda Robert C. John P. J. Jubelirer, M.D., Groff, in Nos. appellee L. for Robert C. Amy EAP 151 MAP 2005 and 48 Jr., Ulrich, Casey, Casey, Robert P.

Sally Ann Robert P. 2005, 48 EAP 9 MAP 2006. in Nos. 151 MAP appellee Kristin Heim, M. Hynd, Miller, Robert C. Nory David Neil Sontag, Jones, Hynd Kristin Benjamin Schireson, D. Philadel- phia, for Herron, Hon. John W. appellee amicus curiae in No. 151 MAP 2005 and appellant in No. EAP 2005. Dalton,

Jane Leslie Soroko, John Jeming Matthew Michael Ryan, for Philadelphia, Brown, Hon. Jr., al., Charles C. et appellee amici curiae in No. 151 MAP 2005 and appellant No. 9 MAP 2006. McBeth,

Anthony T. Robert L. Knupp, Harrisburg, for County PA, Com’rs Ass’n of amicus curiae in No. 48 EAP Corbett,

Thomas W. Gregory Neuhauser, R. Harrisburg, Smith, Amanda L. Corbett, for Tom appellee in No. 48 EAP 2005.

John Patrick Quinn, H. Fiebach, Robert Barthold, Gaele M. Philadelphia, Wilkinson, Jr., Thomas G. Ass’n, for PA Bar appellant amicus curiae No. 9 MAP 2006.

Marc Sonnenfeld, J. Timothy D. Mygatt, Ayala, Thomas V. Philadelphia, for Philadelphia Ass’n, Bar appellant amicus curiae in No. 9 MAP 2006.

Gregory Neuhauser, R. Harrisburg, Smith, Amanda L. for PA, Gen., Com. Atty. intervenor-appellee No. 9 MAP 2006. CASTILLE,

Before: NEWMAN, SAYLOR, EAKIN, BAER BALDWIN, JJ.

OPINION Justice CASTILLE.

I. FACTS AND PROCEDURAL HISTORY

- -A These matters are Court, before this upon exercise of plenary jurisdiction,1 based upon important constitutional 1. § See Pa.C.S. 726. developed of a absence posed by parties.

questions because questions of these no review impediment record is pieces legisla- to two purely legal challenges pose the cases 2005,2 to the provided tied salaries tion: Act which high-ranking certain Assembly, General Judiciary, federal provided branch officials the salaries executive formulas, in increased resulting specific officials means 2005,3 44 in its salaries; Act repealed and Act 72 of litiga- to the giving rise entirety. The factual circumstances Indeed, as- parties. parties tion are undisputed of, with, acceptance certain familiarity the Court’s sume concerning the the two interplay foundational facts between Thus, in the discussion Acts and occasion follows, we will take purposes background, and for concern- of some of the relevant factual circumstances notice itself. process legislation ing legislative floor without passed by was General 7, Act 44 July 2:00 a.m. on 2005. was approximately debate at on same into Edward Rendell signed law Governor G. form, in twenty-two pages In its final Act 44 date. alia, it, compen- the issue official length, and inter removed specific formulas political by adopting sation from the arena Judiciary, for the General determining for officials, certain executive which Assembly, high-ranking structure. governmental salary based on the federal were in compensation of the formulas resulted increases Application all three for branches. legislation, negative public response

There was timing passage its and method focusing particularly upon for an increase unvouchered upon provision providing legislative to the branch.4 expenses, applied exclusively which 7, 201, (hereinafter, 2005, 44"). July "Act The Act of P.L. No. 2. 16, 2005, (hereinafter, No. 72 “Act

3. The Act of November P.L. 72”). may legislators re- provides not The Constitution 4. salary mileage during of office for ceive an term increase during such they passed been under a law term which have elected II, adopted § art. 8. Act a formula that increased office. Pa. Const legislators, higher were not to take effect salaries for but those salaries Governor Rendell legislation, defended the and specifically- defended the expense provision, unvouchered “It’s noting: legal that’s say all I’m about it.”5 going Mr. Chief —and Justice his Cappy, acting Pennsyl role the leader of the vania Judiciary,6 later for legal authored two editorials periodi cals that defended Act 44. J. Ralph See Three Cappy, Branches, Working Together: A collaborative has led to effort a compensation system right that is Pennsylvania, Pa. for 2005; July 25, Cappy, Legislature J. Has Ralph Weekly, Law Pa., Found a Compensation Plan That’s Right Legal The editorials, In July these Chief Intelligencer, Justice posited that Act 44 salary established a structure which good was beneficial for government by attracting and Moreover, retaining qualified public servants. the Chief Jus that, tice by linking noted paid salaries to state officials to governmental structure, the federal Act 44 salary addressed problem political distraction generally with associated the mere of pay consideration raise legislation. The Chief Justice did address the expense unvouchered provision applicable to members of the General Assembly.7 year Thus, was a election municipal year.8 election, November 2005 general no statewide offices were contested in either the or the executive branch. However, V, 13(a) pursuant to Article Pennsyl- Constitution, vania that all requires judges be elected at legislator until each after was either elected or reelected for addi- an however, tional term of expense provision, office. The unvouchered permitted legislators current equivalent obtain the dollar-for-dollar salary immediately through future increase' of an 44, expenses. (amending § increase in unvouchered See 2 Act 1107). § Pa.C.S. Cattabiani, Amy late-night flurry, 5. Worden and F. budget Mario In a the cuts, passed: package $23.9 The billion restores Medicaid adds an raise, pay environmental bond—and included a Inquir- Phila. 7, 2005, er, July at Bl. Pennsylvania 6. The Supreme "highest the Court is court of Com- reposed monwealth and in court supreme judicial shall V, power § of the Commonwealth.” art. 2. Const, Pa. 7. The participating Chief Justice is in these cases. VII,

8. Article Section 3 of Constitution mandates that municipal years. elections be held in odd-number elections, Justices, Mr. Justice of this Court’s municipal two Schultz M. and Madame Justice Sandra New- Nigro Russell Nigro man, election.9 Mr. Justice stood for retention election, in general retention while narrowly defeated for unusually by an nar- Newman was retained Madame Justice margin. row neared, meantime, the Gener- election general

In the as apparent of Act considering repeal Assembly began al Thus, bills that public outcry. competing reaction to the in both eventually become Act 72 introduced would were dispute A between Representatives. and the House Senate legislation before stymied chambers passage two took the November place. Following election general however, election, ap- the House of Representatives 14, 2005; Act on followed suit proved 72 November Senate 2005; Act 72 into signed on and the November Governor on its face Act 44 repealed on that same date. Act 72 law entirety. its -

- B Currently separate the Court are three matters. before Commonwealth, time, Stilp The first matter in order of v. 1, 2005, acting appellant Stilp, pro arose on when Gene August se, in the Equity filed a Mandamus and Bill Complaint jurisdiction, challenging Commonwealth Court’s original prelimi- of Act 44. The filed constitutionality respondents re- nary objections; Complaint; an amended Stilp filed objections. their those spondents preliminary renewed While objections adopted as preliminary pending, were 72 was Nigro Newman were to this Court Justice Justice elected at 9. V, municipal election held November 1995. Under Article Section Constitution, 15(a) of our term office Justices of this Court VII, 15(b), may years. a Justice ten Pursuant to Article seek following ten-year expiration of that term. retention respondents 10. in the Commonwealth Court are the same as here, appellees except was dismissed an for Governor Rendell who February Appellees appellee per order dated via curiam Jr., Commonwealth, Casey, P. consist State Treasurer Robert Jubelirer, Speaker pro tempore C. President of the Senate Robert the House M. John Perzel. 17, 2005, law. November the Court stayed On Commonwealth on the preliminary objections and the briefing parties directed to file memoranda of on the had law issue whether case been repeal rendered moot 72’s of Act 44. On Novem- 23, 2005, ber his simultaneously with Commonwealth Court addressing submissions mootness and a motion to stay an proceedings, Stilp filed Re- Application Extraordinary alia, lief this Court under 3309 requesting, Pa.R.A.P. inter assume jurisdiction we over matter. also re- Stilp a quested stay of the Court proceedings. Commonwealth On 30, 2005, Court, November Commonwealth in an unpub- lished, single-judge opinion by Kelley, the Honorable R. James on Stilp’s challenge dismissed and below basis of mootness denied his for a request stay, noting Stilp could appeal the dismissal to Court this as a matter of On right. December 22, 2005, granted Stilp’s Application Court as- part, jurisdiction matter, sumed plenary over this that the directed case listed at argument be for oral the same session with Commonwealth, v. Herron directed brief five parties issues that will be discussed later this Opinion, and denied stay motion Stilp’s the Commonwealth proceedings Court Commonwealth, as moot. See v. Stilp 585 Pa. A.2d (2005) curiam). (per and Stilp appellees timely legal thereafter filed briefs ad- dressing relevant issues.11 Each appellee submitted but, separate brief exception Casey, with the of Treasurer presented similar arguments Casey, for each issue. Treasurer Attorney General Tom Corbett on submitted briefs behalf of the Brown, Stilp Commonwealth in and on behalf of himself and the brief, brief, Commonwealth in Herron. In his Herron but not his Brown that, Attorney give General contends because Act 72 does not him law, any authority proper party to enforce he not a should be participation Attorney dismissed. We deem the of the General be appropriate, helpful, not to mention he is the Commonwealth official statutorily charged defending constitutionality with of all enact passed by regardless Assembly, ments the General nature of the challenge opinion any constitutional or the other state official con given cerning validity. City Philadelphia statute's v. Common wealth, (2003) (citing 575 Pa. A.2d § 583-84 71 P.S. 732- 204(a)(3) ("It duty Attorney shall uphold General to statutes____”)). constitutionality defend of all that Act Stilp argued instead, with aligned arguments his filed ami- parties interested Several unconstitutional. was single of Stilp, In curiae briefs support in this matter. cus Potts; Russ Dia- curiae brief by Timothy filed amicus was Inc.; Eric Epstein, and mond, Sweep, of PA Clean on behalf appellees, In support of RocktheCapital.org. Coordinator Herron, appel- curiae briefs were Judge filed by amicus Commonwealth, in in Herron v. judges/appellants and lant Additionally, an amicus curiae Brown v. Commonwealth. Thomas, Thomas & firm of submitted law brief was Hafer, LLP, either but addressed support party which did presented. of the issues one Herron v. Common- time, matter in order

The second wealth, 6, the Honor- on December 2005 when was instituted Herron, of Common Pleas of Judge of the Court able John W. for in the Com- County, filed a Petition Review Philadelphia of Act 72 challenging constitutionality monwealth Court Pennsylvania as insofar decreased date, filed an Judge On that same Herron officials. Relief, in Pa. Extraordinary for accordance with Application alia, 3309, inter this Court assume requesting, R.A.P. § over extraordinary jurisdiction, pursuant to 42 Pa.C.S. 22, 2005, the Commonwealth matter. On December Court as- granted Judge Application part, this Court Herron’s plenary that the case be listed for jurisdiction, sumed directed Stilp, and directed argument oral at the same session with discussed fully brief two issues that will parties Opinion.12,13 later Commonwealth, Appellees in President Heiron consist of the Senate

12. Perzel, Jubelirer, tempore Speaker Attorney the House General pro Corbett, Casey. and Treasurer Governor Rendell was dismissed an 14, 2006, per February appellee via and Lieutenant curiam order dated per appellee as an via Governor Catherine Baker Knoll dismissed February order dated 2006. curiam jurisdiction Stilp requests over The for this Court to assume overlapping, apparent to this Court that the were it became Herron posed Accordingly, joining interlocking issues. the matters cases listing argument together complete consid- them for assured a full and legal important case. eration of the issues raised each Judge appellees timely Herron and submitted briefs. As in brief, appellee éach submitted Stilp, an individual each appellee defends Act 72’s constitutionality. An amicus curiae brief was County submitted Commissioners Association (“CCAP”) supporting party. neither CCAP no position takes to the respect constitutionality with of Act 72; rather, CCAP’s concern relates to Judge Herron’s chal- lenge and Act 44’s salary effect on the structure full-time county district attorneys.14 Brown, time, Commonwealth, third matter in order v. on

was initiated December appellants, when are who commissioned judges either the Court of Common Pleas in various counties in the Commonwealth or in Philadelphia Court,15 Municipal filed a Petition for Review in the Common wealth Court also challenging constitutionality the of Act 72. date, On that same the Brown appellants filed an Application Relief, Extraordinary for 3309, in accordance with Pa.R.A.P. alia, requesting, inter that this extraordinary Court assume jurisdiction over the Commonwealth pursuant Court matter 11, 42 2006, § Pa.C.S. 726. On January this granted Court Application in part, jurisdiction, assumed plenary consoli Herron, dated the case with directed that the case be listed argument Herron, oral at the same session Stilp with and further that the parties directed brief the same two issues in posed Herron. Court,

14. We note that the concern raised CCAP is not this before parties did we not order the to discuss' the interaction of Act 44’s provision regarding attorney Judge district salaries and chal- Herron’s lenge, parties nor did the raise Accordingly, this issue themselves. will ho Opinion. there further discussion of this issue in this See Cotto, 217, ("An Commonwealth v. 562 Pa. 753 A.2d 6n. amicus party curiae is not and cannot raise issues that have been not 531(a) (an preserved by parties.”); party may Pa.R.A.P. interested concerning file an appel- amicus curiae brief those questions before an court); (2005) (”[A]n § late accept Am.Jur.2d Amicus amicus must case before the with the parties. court issues made Accord- ingly, ordinarily inject an amicus curiae cannot new issues into a case (footnotes presented by omitted). parties.”) which have not been brief; judges/appellants single The seven have filed a for ease and discussion, clarity of collectively we will refer to them as "the Brown appellants.” timely submitted appellees appellants The Brown Casey Treasurer Attorney Both General Corbett and briefs.16 they to those materially are identical posit arguments that Association and presented Heiron. in The Bar amicus curiae separate Bar Association filed Philadelphia and against in of the Brown arguing support appellants briefs judicial compen- constitutionality insofar as reduced Act 72’s curiae brief amicus an submitted sation. Senator Jubelirer that Act 72 constitutional. appellees, arguing support on April matters before the Court argued The were in- by all presentations forwarded respectful with able volved, of the inter- ripe are for decision. Because they have question, of the to the two Acts we play challenges the most efficient single opinion that a would be determined issues. deciding entirety manner of and sensible the consti- challenges Part II of addresses Opinion and the by Judge of Act raised Herron Brown tutionality challenges III Part appellants, Stilp’s while addresses constitutionality Act 44.

- -C parties has Preliminarily, we note none of of these questioned this Court’s consideration propriety The members of this Court are participating matters. six However, Justices, parties to these actions. and indeed Judiciary Pennsylvania, pecuni member have every these proceedings. pecuni interest the outcome of ary require ordinarily judge interest here ary implicated would from, the option, to himself or herself matter. That disqualify en masse would however, is not available here as recusals these any judicial important whatsoever of prevent review circumstance, Thus, long- under present matters. necessity” requires this Court common law “rule recognized notwithstanding to its discharge duty to constitutional proceed Will, v. United States 449 See interest outcome. any Commonwealth, Rendell, and Appellees of the Governor 16. consist Casey. did brief in this Treasurer Governor Rendell not submit matter. 558 200, 213-16, 471, 480-81, (1980);

U.S. 101 S.Ct. 66 L.Ed.2d 392 Fox, (1870) 169, (“The City v. 64 185 Philadelphia Pa. true rule unquestionably is that it for necessary wherever becomes a judge to an sit even where he has no interest —where in, provision is for or calling made another where no else one can take place decide, his is his to hear and duty however —it be.”). Indeed, disagreeable may this Court previously has considered constitutional challenges legislation affecting See, compensation. e.g., Party Pennsyl- Consumer Commonwealth, 158, (1986). vania v. 510 Pa. 507 A.2d 323 Since there is no for an procedure existence entity proper jurisdiction clothed with consider this matter Court, other than this we shall proceed consider the claims. II. 72 CONSTITUTIONALITY ACT AS IT OF INSOFAR

REDUCES JUDICIAL THE COMPENSATION:

HERRON AND BROWN APPEALS

A. Introduction The title of Act 72 plainly states this Act passed for the purpose of Act 44 in its repealing entirety and reenact- ing the previous compensation provisions contained in Act 1983,17 making and editorial changes.18 Judge Herron and appellants Judges”) Brown “the (collectively, challenge 1983, 160, (hereinafter, 17. The September Act of P.L. No. 39 “Act 39”). Specifically, provides title of Act 72 in full: 7, (P.L. 44), [Repealing July A[n] entitled, the act of A[ct] No. amending (Judiciary "An act Titles 42 and Proce- Judicial dure), (State Government) (Legislature) Pennsylva- and 71 of the Statutes, nia providing compensation; making Consolidated and repeal”; reenacting amending Septem- an inconsistent and the act of (P.L. 39), ber establishing No. “An act entitled salaries public including justices certain officials courts, judges judges judges pleas, of Statewide of courts common Court, Philadelphia Municipal judges of the Philadelphia of the Traf- Court, Governor, Governor, justices fic district and the the Lieutenant Treasurer, General, Attorney the State Auditor General and salary certain expenses other State officers and the and certain Assembly; repealing members of the General certain inconsistent acts,” providing Assembly; and further for members of the General making changes. editorial

559 44 led an in Act which repeals it the formula insofar as The Judiciary. to the provided compensation in the increase 16(a) V, of the on Article challenge focuses Judges’ Constitution, full: provides Pennsylvania magisterial of Justices, justices peace [now judges and compensated by Commonwealth judges] shall be district be dimin- shall not Their provided by as law. office, applying of unless law their terms during ished the Commonwealth. all salaried officers of generally Const, 16(a). V, obviously The Assembly § art. General Pa. constitu- presented serious repeal that its of realized judicial compensa- reduced question to extent tional “Declara- Thus, section Act entitled very first of tion. full, as follows: policy,” provides tion of (a) Assembly declares that reenactment The General 30, 1983 September of the act of provisions the superseded (P.L. 39), Compensa- Public Official No. known act repeal of the Law, to effectuate the necessary tion (P.L. 201, 44), amending “An act No. entitled July Procedure)!,] (Legisla- (Judiciary Titles 42 and Judicial (State ture) Government) Con- Pennsylvania of the and 71 Statutes, making compensation; providing solidated effect on and to salaries in repeal,” adopt an inconsistent 6, 2005. July

(b) Assembly the General exercise of the authority of the justices, judges justices salary to establish 16(a) II and 1 of Article section section peace pursuant is not intended Article of the Constitution V with, on, interfere to diminish or otherwise infringe De- system or the Executive of the independence partment.

(c) restoring this act and implementing For purposes 6, 2005, the General July in effect on salaries to in act that the officials referred finds and declares officers Commonwealth” shall constitute “salaried 16(a) purposes for of section of Article ofV the Constitution Pennsylvania. of 72, §

Act light In of the Judges’ challenge, this Court the directed to the parties following address two issues: (1) V, 16(a) Whether Act 72 violates Article Section of the Pennsylvania Constitution?

(2) 1(b) (c) significance What is the of Sections of Act to the question constitutionality of the of Act 72 in the 16(a) V, of challenge face under Article of the Pennsylvania Constitution? plenary jurisdiction

Because Court assumed over this matter, there no or is lower court decision order under review. The questions thus, involved are our purely legal, scope of is plenary review and our of is de standard review novo. Arguments Support B. of Unconstitutionality Act 72’s identical, Though not arguments the by forwarded are Judges overlapping; similar and for accordingly, ease of exposition, we shall summarize them as one. The Judges formula, argue Act 72’s of the repeal a formula which led to an compensation immediate increase provided judicial the Judiciary, compensation diminished office, during their terms and that the single exceptional recognized circumstance by Constitution which would al- i.e., for such low where compensation for “all reduction — salaried officers the Commonwealth” is also diminished —is not implicated Judges here. The argue the constitutional exception only was intended a circumstance govern- where mental solvency threatened “a period economic stress.” Preparatory 5, See Committee’s Reference Manual No. Thus, contend, (cid:127)Judiciary, at 67.19 the Judges Pennsylva- 16(a) proposed Pennsylvania 19. Section was Bar Association during Pennsylvania the 1967-1968 Constitutional Convention. The proposal provisions on based similar contained in the Constitutions 1790, 1834, 1870, explicitly prohibited each of which diminution compensation paid judges during of the their terms of office. The Pennsylvania Bar Association also recommended that the constitutional exception judicial contain compensation should could judicial compensation sets a bar before high nia Constitution reduced, specific, extraordinary circum- limited to may be unambigu- implicated, If is not stance. that circumstance nec- reducing compensation prohibition against ous Judiciary, one of of the essary independence to ensure See, e.g., equal government. branches three coordinate (1976) 466 Pa. 353 A.2d Firing Kephart, v. (“[T]he prohibition against of the purpose well-established during their Judiciary diminishing 16(a) office, explicitly but in Section terms of contained in the Constitution since implicitly present independence is maintain the Constitution govern- the other branches of Judiciary from encroachment omitted). .”) (footnote ment com- Act Judges’ argument

The 72 diminished operated 44’s formula straightforward. Act pensation Pennsylvania the all immediately compensation paid increase receiving new began the judges; judges actually 8, 2005; Assembly the of July salaries as General reduced the of office four months during judges’ those salaries terms and, 72; 16, Act the 2005 enactment of later with November 16, 2005, in fact Pennsylvania judges’ salaries after November back their previous rolled levels. were the to the the Section Turning question applicability 16(a) first Act 72 not the note that exception, Judges crisis any particular in order to address economic passed Commonwealth, a might the have warranted reduction in the of “all salaried officers of Common- 2005 period July note that the between Judges wealth.” economic by 2005 was marred severe and November Instead, assert threatening they stress Commonwealth. a political facing crisis that Act 72 was motivated only compensation of if all officers of the Common- be reduced salaried diminished, alleviating similarly purpose wealth was during exigent economic circum- Commonwealth's financial burden 5, The Preparatory See Committee's Reference Manual No. stances. generation Depres- Judiciary experienced a the Great at For War, ephemeral an sion World this was not or obscure and the Second prospect. in the of their General wake constituents’ reactions aspects to certain 44. Leaving Act aside whether 16(a) purpose legislation implicates excep- Section tion, Judges then three posit independent reasons why not fall does exception provided within narrow 16(a).

First, diminish, that Act Judges argue 72 does not or address, even compensation many other “salaried offi- cers of the Judges Commonwealth.” The concede that the specific constitutional phrase “salaried officers of the Com- has monwealth” not been addressed or any defined court in Commonwealth, Judges but the cite other precedent from this Court of their that a support assertion reliable is easily definition discernible. See v. Zazyczny, Werner (1996) 1331, Pa. 681 A.2d (determining that Special III in Investigator General’s Inspector Office was not an VI, “officer” under Article of Pennsylvania Section 7 Constitu- tion, explaining person will be deemed a public “[a] person officer if the appointed perform elected to duties character, grave of a and important and which involve some of government, term.”); the functions of for a definite Vega v. Borough Burgettstown, 394 Pa. 147 A.2d (1958) (concluding that chief police was not officer” “public but merely “public under a employee” outlining statute procedure officers, for the of borough police removal noting that “the applied test to be determining public electorate, officer is ... officer is chosen [whether] appointed, or for a and in definite certain the manner tenure provided by law to an office of a grave whose duties are and character, important involving some of the functions of gov- ernment, and are to be for exercised the benefit of the public ....”) compensation for a out of paid fixed the public treasury Lackawanna, 349, Alworth v. (quoting 85 County Pa.Super. of (1925)); 352 Richie v. City 225 Pa. Philadelphia, A. of (1909) 430, that (determining term officer” in “public III, Article Section 13 of then-applicable Pennsylvania Consti- encompassed assessor; tution real appointed estate factors be examined are “the nature be performed by service to him,” incumbent,” whether imposed upon the “duties character, involving grave important are of a and “those duties of the functions performance them some proper term.”).20 Judges The further “a fixed and government,” Constitution provisions that other argue term is make clear the term “officer” containing reason, inclusive; for that to be broad and intended be- submit, “officers” contemplates Constitution Judges Const, VI, § See, e.g., Pa. art. named. yond explicitly those for in (entitled of Officers Not Otherwise Provided “Selection officers, is Constitution,” “All whose selection providing, Constitution, shall be elected or in this provided law”). may be directed appointed 16(a) adds two additionally note Section Judges The for when that must be accounted qualifications important First, definition for the term “officer.” discerning proper “salaried;” second, must they “officers” must be Therefore, the co- Judges officers “of Commonwealth.” V, in Article the term “officer” gently reason that offices, 16(a) salaried holders of state whether “refers all impose offices posts, or to those whose appointed elected of some performance grave important duties and involve 13; at Herron Brief Brief government.” functions of Brown at 7. no definition, Judges argue that

Applying logical branch the executive did positions than seven cabinet less Act compensation by operation not suffer a reduction that, although Judges has that a this Court often stated 20. The note determining whether a relevant factor in defined term office is “officer,” specifically held that this is an the Court has never someone however, note, prerequisite. Judges The further factor an absolute Attorney official Office of the General issued an Secretary concluding Attorney and the opinion that the General himself the Constitution even were “officers” under Commonwealth though position See Pa. at that time carried a definite term. neither (1978), ultimately Judges Att’y 1978 WL Op. Gen. 110 not need to resolve this issue because maintain that this Court does holders of plainly failed or diminish the to address many performing grave important duties who charged offices with terms, enough appointed fact for definite and that are elected challenge. their decide Counsel, including: 732-301; the General see § 71 P.S. the Secretary of Planning Policy; the of Secretary Legislative Affairs; Reform; the Director of Health Care the Director of the Pennsylvania Emergency Management Agency, see 35 7312(e); § Secretary Pa.C.S. the of Budget, see 71 P.S. 229; General, § Inspector § and the see 4 Pa.Code 1.291. The Judges contend that certainly cabinet-level officers must quali- fy as “salaried officers Commonwealth.” In this regard, an example, Judge and as Herron notes that “the General officer by Counsel an established statute to undertake the grave and important serving role as the legal advisor to the advice, Governor and such legal ‘[r'Jender and such representa- action, tion to initiation prior any as are required concern- ing every matter arising and issue in connection with the exercise of powers the official and duties’ of each executive and independent at agency.” Herron Brief 8 (quoting 71 P.S. 732-301(3)). §

. Additionally, Judges contend that Act 72 did not reduce officers, the following salaries of all of whom are appointed Governor, by and with the consent of the Pennsylvania Commission, Turnpike Senate: members of the see 36 P.S. 651.5; § members the Unemployment Compensation Board, 763; § see 43 P.S. Pennsylvania members Commission, 301; Public Utility § see 66 P.S. the members of Commission, 1-601; Securities see § 70 P.S. Commission, members the State Civil Service see 741.201; General, § P.S. the Physician 1401; § see 71 P.S. members of the Board, Environmental Hearing see 35 P.S. 7511-16; §§ the Commissioner of the Bureau of Professional Affairs, Occupational 1401-305; § see 63 P.S. and the Advocate, (West). Consumer see 1976 Pa. Legis. Serv. 423 Other “officers” who did not have their salaries reduced note, Judges include: the State Fire Commission- er; the Deputy Community Secretaries Affairs and Devel- opment, Information Technology, and Human Resources and Management; and the Executive Directors of the Game Com- mission, the Philadelphia Regional Port Authority, the Penn- Commission, Fish and the and Museum sylvania Historical and Boat Commission. point by emphasizing their first Judges

The conclude is not exhaus- they identified above list of “officers” have the the Common- officers of all such unaffected “salaried of tive assert, alone, Act proves that Judges But the list the wealth.” “all” the of not or even address 72 did diminish same manner in the officers of the salaried Commonwealth The Judges directly compensation. diminished alone, that, exception the for this reason Section assert V, 16(a) not and Act therefore Article does 72 violates apply, 16(a). concluding the The second reason independent Judges, is that Act according does not the exception apply, the the salaries of executive 72 does diminish current in Act The enumerated 44. specifically officers who were 44, in Act identified whose increased elected executive officers 44, Act the specifically addressed in include compensation was Governor, Governor, Treasurer, the the the Lieutenant State 44, General, § the Act Attorney General. Auditor 1102-03). §§ (amending appointed Cabinet Pa.C.S. the by Adjutant Act 44 members identified affected were of General, Secretary Agriculture, the of the Secretary Aging, of the Common- Secretary Banking, Secretary of the the wealth, Community Develop- the of Economic Secretary Resources, ment, Secretary the of Conservation and Natural Correction, Education, Secretary of the Secretary of Protection, Secretary of Gen- Secretary Environmental Services, Health, Secretary Commis- eral the Insurance Commonwealth, Secretary Labor and sioner Welfare, Secretary Secretary Public Industry, Revenue, Commissioner, Police Pennsylvania State Id. Secretary Transportation. (amending Pa.C.S. 1102(c)). § 44, note, increases Judges salary applica- Act

Under positions only elected were avail- ble to named executive after the positions to those elected to these able individuals 44, 4(4). See § date of the Act. Act July effective Similarly, salary increases provided for the named ap- pointed Cabinet positions were to apply only to individuals appointed to these positions after December See Act 4(3). 44, § Unlike the compensation increases that the Act 44 (in formulas provided to the legislators the form of unvouch- ered expenses) and the Judiciary, the increases in salaries provided to these named executive officers never took effect because Act 44 repealed by Act 72 before any these officers were either appointed. elected or Because no execu- tive including the ones specifically identified Act officers— 44—had their compensation actually increased Act definition, none their saw salaries decreased when 72 was adopted. For separate this independent reason, the Judges 16(a) argue, the Section “all salaried officers” excep- tion does not apply, and Act 72 must be deemed unconstitu- tional insofar judicial as it reduced compensation.

Third, the Judges argue that the exception inapplicable because the Act 72 salary reduction does not apply “general- so, ly.” note, This is Judges the because the salary reductions in Act 72 do not apply evenly i.e., by the same amount or — proportion affected, the various officers as some officers’ —to amount, salaries are by reduced one by others a different amount, etc. The Judges dismiss appellees’ argument that Act 72 merely reduces by salaries the same amount that they were increased Act 44 as unavailing, reiterating that the constitutional provision addresses reductions alone it that, makes clear once salaries been have at established a amount, certain a reducing law those salaries does not apply “generally” unless it reduces them evenly across-the-board, either directly or proportionately. to

Turning the second order, issue this Court’s briefing the Judges argue that the General Assembly’s policy declara- 1(b) (c) tions contained in Sections of Act may reflect a 16(a) awareness of the dilemma, obvious Section but the declarations themselves do not dissipate the direct and patently unconstitutional effect that the Act has on reducing judicial compensation. l(b)’s Regarding Section declaration that Act 72 “was not on, intended to diminish or infringe with, the independence the interfere otherwise not the relevant assert this is Judges the system,” note, test Judges contrary, To the constitutional test. 16(a) itself, and it looks set forth Section specifically by a law has been diminished judicial compensation whether officers of generally not to “all salaried apply that does exception for does not include an That test Commonwealth.” or- judicial compensation the reduction instances where accompanied by legisla- Assembly dered General it not intend the reduction interfere did tive declaration has Court independence Judiciary; with judicial compensation diminishing held that a statute never Assembly the General scrutiny survives constitutional where to interfere with thereby claims intend did See, v. Common- Judiciary. Catania independence e.g., Bd., wealth, 450 A.2d 1342 Ret. Pa. Employees’ State (1982) opinion). (plurality in Section Assembly’s policy

As for the declaration General 1(c) term of Act to define the constitutional purports solely for purposes officers of the Commonwealth” “salaried levels, Judges rolling this Act and back not bind Court. argue that this declaration likewise does view, not afford Judges’ In the the Constitution does away to define Assembly authority attempt General 16(a). To grant violation General so, contend, do the eliminate the ability Judges to would prohibitions to limitations or authority impose Constitution’s branch, the in clear of fundamen- on contravention Further, Judges the note separation powers principles. tal of Assembly’s that the declaration as to officers General which the officers of the Commonwealth” constitute “salaried prior interpreting inconsistent with: decisions this Court see, Werner, “officer,” e.g., the term the Constitution’s supra; see, “officer,” is an guidance determining considerable who VT, 1; Const, IV, § § the e.g., Pa. art. art. and General tellingly, on issue—most Assembly’s prior positions own itself, plainly the acknowl- Act 39 title which revived it edged every that did establish new salaries Com- officer, as it employed public monwealth the terms “certain Thus, officials” “certain other State officers.” Judges argue, this Court is not bound by Assembly’s General attempted pre-emptive definition.

The amicus briefs Bar Pennsylvania filed Association Philadelphia Bar Association emphasize, Judges do, 16(a) that Act 72 violates Section apply because does not to “all salaried officers of phrase the Commonwealth” as that intended, was many because executive branch officers specifically in Act 44 mentioned itself did not their have all amici existing salaries at diminished Act The also assert that the Assembly’s declarations in Sections General. 1(b) (c) of Act 72 fail to save the Act from its patently Indeed, unconstitutional effect upon salaries. Bar' Philadelphia argues Association that the General Assem- bly, seeking to bind the courts to one-time definition of Commonwealth,” the term “salaried officers of the a definition obviously only hope was in the. designed insulating Act 72 against challenge, usurp constitutional sought function of the as the Judiciary interpreter ultimate Association, Constitution. In the of the Philadelphia view Bar this legislative declaration of policy “highlightfs] danger an overreaching legislature against Compensation which the Clause designed protect.” was Bar Associa- Philadelphia tion’s Brief at 9. Pennsylvania Bar Association adds occa- very

sion for the enactment of Act 72 negates any suggestion its of policy, appellees’ declaration or in arguments, that the Act passes constitutional muster. The Pennsylvania Bar Associa- tion posits the sole reason the Assembly General passed in response the public scorn and discontent However, which followed upon adoption Act 44. Penn- sylvania contends, Bar Association that political reason for rolling back very type retributive action 16(a) prohibits expressly judicial compensa- when tion is involved. The Bar Association percep- that, tively reduce action, may but not impolitic of legislative [it]

tion criticism, as a by public reason of" judicial remuneration action.” legislative with their public reaction to dissatisfaction In of Association Brief at 7. the view Bar Association, misuse Assembly’s Pennsylvania Bar General repeal of Act by its over virtue 72’s appropriations, of control integrity on represents of Act direct encroachment of co-equal as a branch Judiciary of independence government. Constitutionality Support Arguments in of Act 72’s

C. 44’s of Act repeal All maintain that Act 72’s appellees did judicial compensation adoption governing of the formula 16(a). addition, V, In are appellees not violate Article Section 1(b) merely Act that Section of reflects agreement in basic Assembly’s intention not to contravene express the General 16(a)’s preserving indepen- primary purpose Section Judiciary; and that the definition “salaried dence of 1(c) is proper officers of the Commonwealth” found Section however, slightly Each offers diver- controlling. appellee, general arguments. reasons of these gent support that have Attorney Judges General Corbett contends that strong constitutionality not overcome presumption Attorney The is accorded enactments. General dispute judicial compensation, does not that Act 72 reduced but, he argues, comported it did so in a fashion with 16(a). excep- Addressing in Section exception delineated tion, the the Constitu- Attorney argues General neither tion, nor the cited for the definition Judges cases officer,” “salaried offi- “public specifically “officer” or define Therefore, Attorney cers of the Commonwealth.” General filled that void properly the General posits, as a rational and definition adopted legitimate what he views Act term purposes constitutional if other also contends that even Common- Attorney General 44 or explicitly mentioned either Act employees wealth Act “salaried officers of Common- may considered 16(a) wealth,” no because there still is violation applies if generally, only uniformly in the sense that it repeals salary all the increases that resulted from the Act formulas. Casey’s primary

Treasurer argument focuses on Act rather than Act 72. The argues Treasurer that Act 44 was in unconstitutional its entirety inception; salary at its the initio; increases it provided therefore were unlawful ab Act 72 cannot be deemed to impermissibly have reduced judicial where compensation compensation that never was “legally” increased.21 Treasurer Alternatively, argues Casey that constitutionally enacted, even if Act 44 was Act not 72 did 16(a) violate Section because repeal applies the to all of the officers the possess who characteristics attributed to “public officers” jurisprudence as found this Court’s interpreting Richie, See, Moreover, that term. e.g., supra. the Treasurer maintains that Act 72 is egalitarian applies generally each affected officer’s salary by is reduced same very amount as it increased by operation was the Act 44 formu- declarations, las. Concerning policy argues the Treasurer 1(b) (c) Sections of Act do not establish 72; rather, of Act constitutionality merely these Sections acknowledge Assembly that the General understood its consti- 16(a). tutional limitations under Section brief, In his Speaker initially briefly Herron Perzel that, indicates his agreement Casey with Treasurer if Act 44 unconstitutional, were deemed to be it would be void ab initio and, thus, Act 72 would to be deemed to no have have had judicial unconstitutional upon compensation. effect Unlike Treasurer, however, Speaker fact insists Act 44 in and, therefore, Judges’ constitutional Act challenge to 72 must be resolved. The Speaker asserts that the values 16(a) (1) that the prohibition Section are: protects preventing of singling retributive act out (2) reduction; and preserving Judiciary coequal as a branch of government. Speaker asserts that neither argument 21. The argument infra, here his Stilp, Treasurer's tracks that Act 44 was unconstitutional Assembly’s because General man- passing ner of violated Article III of the Constitution. by been implicated be deemed to have these two values must established general repeal salary Act all increases 72’s Assembly’s declaration policy because the General 1(b) maintains much. The further Speaker said as Section Assembly’s of “salaried officers definition General because, 1(c) “where proper the Commonwealth” but constitutionally-created officership position historically Assembly has constitutionally-defined, General Speaker statute.” that constitutional defined asserts, the example, For the Speaker Perzel’s Brief at 37. previously has defined duties General General. offices of State Treasurer and Auditor constitutional Const, 1; IV, v. § art. ex rel. See Pa. Commonwealth Woodruff (1925) Lewis, 828, al- 306, (noting 282 127 A. 829 Pa. are the of Treasurer and Auditor though offices State General Constitution, in their named the duties were Legislature). defined the of

Speaker argues scope Judges’ Perzel also that the the that, if mid-term challenge overbroad. He contends even Judiciary may for the not be reduced compensation increases 16(a), to Act 72 constitutional the extent under Section was judicial salary to eliminate future increases which operated maintains, Thus, if this yet Speaker have not the “vested.” judicial to to Act unconstitutional as Court were find 72 salaries, initially higher we salaries may only reinstate in 44 by Act 44 not those Act provided provisions which compensation. might judicial lead to future increases Cf. Will, (“[A] 229, 101 salary at S.Ct. at 487 increase U.S. Compensation only purposes ‘vests’ for of Clause [Federal] part compensation it takes effect as due when judges.”). to Article III payable that, if addition, Act 72

In asserts even were Speaker compen- to the extent it deemed unconstitutional reduced 2005, Judiciary judges receiving sation were November salary that Act 44 until their only should be deemed entitled to of office at Act 72 would expire, point current terms judicial new-term lawfully operate take effect and to reduce Thus, Speaker’s to in the pre-Act levels. view, judge a term of office after Novem- any began new who 2005,

ber or any sitting retained for a term office judge new 2005, after lawfully November to Act subject would repeal only and would receive the compensation contemplated by Act 39. particular argument

We note that this not suggested But, event, briefing any Court’s order. sum- we will 16(a) reject marily it. For one thing, Section speaks Moreover, “terms” office. the Speaker’s argument would require this Court re-write Act 44 to include distinction draw, he would though legislation even itself not so does provide. This decline do. we Since the does not legislation distinction, Speaker’s pass include the do upon we 16(a) Speaker’s rather per- remarkable assertion that Section mits the General legislation enact that would directly reduce so compensation, long the reduction at made effective beginning new elective terms of office. Jubelirer, Senate,

Senator as President pro tempore initially argues did not in fact the compen- reduce sation any his or judge during her term office.22 The that, 6, 17, on January July Senator notes November 31, 2005, December judges annual salaries for were the same, and that none of judges Act 72 challenging assumed office between 2005 and July November alternative, that, In the Senator Jubelirer argues assuming that Act 72 compensation, reduced the reduction does 16(a) First, not violate Section for several reasons. the Sena- tor maintains the single that Act did not Judiciary out the exclusively diminution, for salary but rather treated all offi- cials the salary by whose was affected Act 44 formulas the Second, same. the Senator argues Judges’ that the contention 16(a) that the exception in Section the requires compensa- that every tion of “salaried officer of the be Commonwealth” reduced the in III, at same time is direct conflict with Article Constitution, 27 of Section the prohibits the salary public reduction the of a officer after his election 22. Senator Jubelirer a brief submitted in Herron and an curiae amicus incorporating by brief in Brown reference his brief. Herron that, under maintains The Senator appointment.23 or in Sec- exception provided limited interpretation, Judges’ 16(a) conflicting with exercised could without tion never Third, III, disputes the Senator Article Section 27. provides a clear definition that case law contention Judges’ to define be utilized officer” which can “public “officer” or In the Senator’s of the “salaried officers Commonwealth.” in the cases or officer” view, “public of “officer” the definitions upon widely, depending varied Judges relied upon at issue. specific constitutional in Act Sena- Concerning policy provided declarations 1(b) merely reflects that Section tor contends that Jubelirer enacting 72 was the intention of General 16(a). As of “salaried for the definition to violate Section 1(c), the found Section officers of the Commonwealth” be- necessary maintains such definition Senator that interpreting decision this Court any cause of the absence of not to create stated need previously phrase, it III, Article The Senator notes conflict Section 27. with branch to or is not uncommon for executive exercising their constitu- constitutional interpret provisions duties, ultimately concedes albeit he tional to inter- Judiciary proper responsibility determine As- that the argues The Senator further General pretation. officers of the 72-specific definition of “salaried sembly’s Act certainty provides reasonable and Commonwealth” Legisla- encompasses as it all members predictability execu- identifies Judiciary, highest ture some compensa- any as the class to which diminution tive officers 16(a). applied satisfy tion must be order Section Analysis D.

- - any challenge faced with constitutional When our task constitution- legislation, proceed by presuming we Salary “Changes in Office or Prohibit- entitled Term of ed,” any provides entirety: in its “No law shall extend the term emoluments, officer, public salary or after or diminish his increase Ill, § appointment.” Pa. his election or art. Const, 574

ality in part judicial because there exists a presumption that our sister branches take seriously their constitutional oaths. 1922(3) (“In 1 § See Pa.C.S. ascertaining the intention of the General the enactment of a statute the ... presumption the General Assembly [is] [t]hat does not intend to violate the Constitution of the United States of this Commonwealth.”); Pennsylvanians Against Gambling Ex Fund, pansion Commonwealth, 275, Inc. v. 583 Pa. 877 A.2d 383, (2005) (hereinafter, “PAGE”). Indeed, 393 enactment not be will deemed unconstitutional unless it clear ly, palpably, PAGE, and plainly violates the Constitution. at A.2d 393. “Any doubts are to be resolved favor of a finding of constitutionality.” Payne Corrections, v. Dept. of 375, 795, (2005). 582 Pa. 871 A.2d Accordingly, a party challenging the constitutionality of a statute very bears a heavy persuasion. Barud, burden of See Commonwealth v. 297, 162, (1996). 545 Pa. 681 A.2d In cases where this Court is asked to construe provisions of the Pennsylvania Constitution, “the fundamental rule of construction which guides [the is that the Court] Constitution’s language controls and must be interpreted sense, its popular understood the people they when voted on its adoption.” v. Ieropoli 138, Corp., (2004). AC&S 577 Pa. 842 A.2d Our ultimate touchstone is the language actual of the Constitution itself. See Firing, 353 A.2d at 835-36.

For purposes deciding the Judges’ to Act challenge we will assume that Act enacted; constitutionally we then will separately consider the challenges to Act and the consequences those challenges would have for the Judges’ appeals, our Stilp, then, discussion of Assuming, infra. that the compensation provisions in Act 44 constitutional, were (1) the controlling questions are: whether Act 72 acted to diminish (2), did, compensation; if it whether the reduction V, 16(a). was constitutional in light of Article follow, For the reasons that we hold that Act 72 did diminish judicial compensation; and the circumstances do not implicate the exception to the constitutional prohibition on

575 clearly, plainly unconsti- palpably, Act 72 is such action. judicial compensation. tutional to the extent that diminishes - 2 - Act to diminish question operates of whether 72 long. adopted not Act judicial compensation need detain us judicial salaries directly increase operated a formula that later, 7, four months on 2005. beginning July Approximately 16, 2005, the of on November with the enactment during judges’ salaries Assembly reduced those General date, salaries have been judicial of terms office. Since ie., levels, to the set forth pre-Act restored their level Indeed, dispute do not that Act appellees Act 39. most sug judicial compensation. Only Jubelirer reduced Senator any compensation diminish the of that Act 72 did not gests office, that on during by arguing his or her term of judge 31, 2005, 6, 17, and December January July November same, and none of the for were the judges annual salaries July 7 and Act 72 assumed office between Judges challenging plain to the argument November 2005. This does violence 16(a). The increased “during” of in Section meaning the word July through to the from Novem compensation paid Judiciary office, of during 2005 occurred their terms ber More reduced their terms of office. compensation during was over, Act 72’s argument “poli if the plausible, Senator’s were V, declarations, refer to Article cy” specifically which Section 16(a), Thus, that Act 72 reduced inexplicable. are we hold during terms of office. judicial compensation judges’

- -3 vigorously ques a. to the more contested Turning 16(a) we exception applicable, tion of to Section whether begin of the constitutional history experience with the judicial compensation. This was protection Pennsylvania new to the 1968 version Constitution. Indeed, prohibiting similar the reduction provisions Pennsylvania in the Constitu compensation were also included 1776, 1790, 1834, to the 1968 tions of What was new exception prohibi- Constitution was limited to this express That exception proposed by tion. Bar Convention, during Association the 1967-1968 Constitutional suggested allowing reducing for the prospect judges’ salaries, with the along salaries “all salaried officers Commonwealth,” if financial dire circumstances arose. See Preparatory Reference Manual No. The Committee’s Judi- ' ciary at 67. V, 16(a)’s

Article against prohibition reduction judges’ during their terms office is modeled III, Constitution, after Article Section 1 of the Federal famil- Clause, iarly known as the Compensation provides: which judicial States, The Power of the United shall in be vested Court, one in supreme such inferior as the Courts from Congress may time time ordain and establish. The Judges, both of the supreme Courts, and inferior shall hold during Behavior, shall, their Offices at good stated Times, for Services, receive their Compensation, a not during shall be diminished their in Continuance Office. Const, Ill, In § U.S. art. reviewing Compensation Clause, the Supreme United States has that it Court noted is in the historic Anglo-American rooted tradition indepen- of an Will, dent See Judiciary. 449 U.S. at 482. “A S.Ct. at Judiciary by free from control Legisla- Executive and the is if a right ture essential there by is to have claims decided judges who are free potential from domination other 217-18, government.” branches of Id. at at 482. S.Ct. in Alexander Hamilton The wrote Federalist No. 79 of the of primacy maintaining judicial independence and protecting

judicial compensation to achieve that salutary end: office,

Next to can permanency in more nothing contribute to the independence judges of than a fixed for nature, In support.... general their of course human a over a man’s power subsistence amounts to a over power his will. can hope practice And we never to see in realized judicial complete separation of from the power, any system which leaves the former dependent on pecuniary grants resource the occasional of the latter. (Clinton Hamilton) (Alexander No. at The Federalist ed., 1961). Rossiter V, 16(a)’s protection judicial

Article fundamental, global protection of a more part is but a doctrine of Judiciary, by the provided role of the coequal of the Commonwealth powers. government separation into divided government, like the federal Pennsylvania, II, 1§ Const, art. branches, legislative, see equal three Pa. (“The of this shall vested legislative power Commonwealth executive, ”); .... see ain General Pa. Const. (“The shall be vested IV, supreme power § 2 executive art. V, Const, ”); art. judicial, .... see Pa. Governor (“The shall be § 1 vested power Commonwealth ”). noted judicial system.... a As United unified Supreme Court: States merely powers] doctrine of separation

[The Its or of mechanism. governmental matter of convenience comming- ... object namely, preclude and vital is basic powers government these different ling essentially the same hands. States, 516, 530, 53 v. 289 U.S. S.Ct.

O’Donoghue United (1933). 743, 77 L.Ed. 1356 of addressed the vul

Recently, Supreme the Court Illinois of Judiciary, importance of the and the concomitant nerability Jorgensen Blago of v. powers. the doctrine See separation (2004). 165, 286, 652 285 Ill.Dec. 811 N.E.2d jevich, Ill.2d Jorgensen suspension The centered on the dispute (“COLAs”) for adjustments Illinois Judiciary’s cost-of-living the Illinois Assem years by the 2003 2004 fiscal General law, salaries, judicial Under Illinois bly and Governor. officials, along government the salaries for other were with (“Board”), by a Board Compensation determined Review a The by in turn created Review Act. Compensation was periodic Board to undertake reevaluations required was factors, salaries, adjust variety them a officials’ based on Assembly. General and then submit a the Illinois report report, Assembly filed its was After the Board General permitted to it in disapprove of whole or reduce it proportion- ately.

In the Board issued a report setting specific salaries for each positions offices and covered under the Com- Act, pensation Review also determined that the salaries were to include annual automatic These COLAs. COLAs were deemed a if component salary fully vested and when report Board’s became law. The report was submit- ted to the General Assembly pursuant the Compensation The Assembly adopted Review Act. General then a resolution that proportionally reduced the amount of set by offices, for Board the various but expressly approved portions the Board’s report establishing automatic offices, annual for COLAs the affected including the Illinois Judiciary.

Thereafter, however, Illinois General suspended the COLAs for state’s fiscal In year. action, light of this the Illinois Judiciary was paid the component of their COLA salaries the 2003 fiscal year. however, For the 2004 year, fiscal the General Assem- funds, bly targeted in an appropriation bill which passed in the spring implement COLAs for Judiciary. portion of the bill for the appropriating funds COLAs, however, was a removed reduction veto via signed by the Governor of Illinois.

Two Illinois trial judges court then filed a class action lawsuit on of all judges. behalf Illinois The complaint sought declaration the Governor’s veto of the 2004 year fiscal unconstitutional, COLA was passed that the act General Assembly fiscal suspending year COLA violated which, of the Illinois Constitution like its Pennsylvania and Federal counterparts, prohibited the reduc- tion of judges’ during salaries their terms of office. The Illinois Supreme Court held that the actions the coordinate government branches of In violated Illinois Constitution. so court holding, the determined that the for the 2003 COLAs years and 2004 fiscal had been fully vested as of component Compensa- the report by the 1990 issued salaries since judicial tion Board. Review court addressed Jorgensen the analysis,

In its undertaking The in detail. powers the of separation of importance at to the matters cogent, and relevant analysis court’s issue, length: at acknowledgement so bears powers of

Avoiding governmental the concentration founding by the political body was seen person same liberty. Preventing to freedom and fathers as essential why branch is by of one authority excessive concentration among of checks balances system mutual thyee into the government incorporated branches of Antieau, Modern Consti- government. of our C. structure (2d 1997). ed. For checks balances tutional Law 376-77 liberty, each of protecting individual properly work free must be from government kept three branches of of Insur- or coercive influence the other branches. control govern- branches of ing independence respective powers thrust doctrine. separation ment is the real enjoy equal of government While the three branches constitution, their ability status under the withstand significant- from their coordinate branches differs incursions no It has ly. branch is most vulnerable. It or collect taxes. treasury. power impose no possesses and to financially It commands no militia. To sustain itself decisions, it is on the implement dependent its and executive branches. As law arbiters presents profound problem.

This liberties, judi- members of the individual guardians at these other branch- ciary often find themselves odds with duties, must fulfilling judges es of In their government. challenge very governmental the actions of the frequently they provide financial and other resources bodies who They Such are unavoidable. operate. challenges need to That their part adjudicatory process. are an inherent mean judges duty constitutional does requires their received the other branches decisions will well government. against unpopular Retribution the courts for decisions ongoing is an threat. judicial

The vulnerability of the is branch exacerbated because, branches, the unlike executive and the judiciary has no true constituency. Although electoral elected, judges in Illinois are do they the represent voters in the same way executive officers or do. legislators alderman,” in community typically Citizens to “their refer “their representative,” senator,” or mayor,” “their “their but no member the can claim public rightly a particular the judiciary member of judge.” Lacking “their an electoral constituency, judges command no alle- popular' That, turn, giance. easy targets renders them for those who would condemn unpopular rulings. Federalist, In the No. Alexander Hamilton touched on some of these issues. He wrote: only honors,

“The executive not dispenses but holds of the community. Legislature sword not only the purse, prescribes commands but the rules rights every duties and are regulated. citizen to be The judiciary, on has no contrary, influence over purse; either the sword or the no direction either strength or society; wealth and can take no active resolution It may truly whatever. be said to have will, neither nor force merely judgment. simple but This view of matter suggests conse- important several the. quences. It proves incontestably judiciary beyond comparison the weakest of the three departments of power; that it can never attack with success either of two; possible other and that all care is requisite enable it against to defend itself their attacks.” (citation omitted). at Id. 660-61 decision, In its rendering Jorgensen court noted its sensitivity to the fact that “substantial budgetary challenges currently confront and the General Assembly,” Governor that, efforts, their despite best budget shortfalls persisted. at Id. 669. The court stressed that it did “not mean to dimmish the seriousness of the or appear situation insensitive govern- coordinate branches faced our difficulties however, court factors, could not deter the Id. ment.” Those so restriction which was enforcing a constitutional plain from separation powers: to the vital undeniable, highly cogni- are are and we

Those difficulties our restraint austerity spending. zant of the need every effort judiciary, As we make administrators thing One we and however we can. economize whenever however, Illinois. do, Constitution of ignore cannot receive, did judges nor This court not set the salaries did The sala- of those salaries. component we make COLAs ries, provided component, COLA were including their in this Now opinion. in the described earlier manner law. the constitution have been implemented, those salaries of law they permits commands be No paid. principle rea- requirements for economic suspend us to constitutional sons, may those reasons seem. compelling no matter how the the ordered Accordingly, Jorgensen Id. at 669-670. court the upon receipt Comptroller, prepared Illinois vouchers Courts, to issue warrants Administrative the Illinois Office Judiciary to the Illinois treasury pay drawn on state 2004 fiscal years. had for the 2003 and COLAs which vested of the Jorgensen recognized, vulnerability As the court duty power to its and judicial impair branch cannot allowed Thus, its for exam- judgment. to decide cases and effectuate of the previously primacy this Court has addressed the ple, to the executive and Judiciary’s power compel to operation to essential branches furnish resources courts. of Republi-

It our Constitutional form precept is a basic Judiciary independent can that the is an and Government Government, along Branch of with Executive co-equal Legislative and the Branches.... powers inherent of the basic functions and

Because Government, inde- co-equal co-equal three Branches co-equal pendent Judiciary possess rights powers must duties, its including with functions right power itself protect against any impairment thereof.... Expressed words, in other the Judiciary possess must inherent power to determine and compel payment of those of money sums are reasonable and necessary carry its responsibilities, out mandated and its powers and duties Justice, to administer if it be in reality is to co-equal, independent Branch of our principle Government. This has long been in this recognized, only Commonwealth but throughout also our Nation.... very genius of our tripartite Government is based

upon proper exercise of respective powers togeth- their er with cooperation harmonious indepen- between the three However, down, dent Branches. if this cooperation breaks Judiciary must exercise inherent power preserve its efficient expeditious administration of Justice and protect being from impaired destroyed.... Tate,

Commonwealth rel. ex Carroll v. Pa. 274 A.2d (1971) (citations omitted). 196-97 and footnote doWe not reproduce precepts these settled as mere plati- exploration tudes. Our of the fundamental reasons underlying constitutional protection against diminishing com- pensation is essential to understanding why it is that legislative reasoning judicial for reducing compensation is to generally irrelevant inquiry, constitutional unless the 16(a) Section The exception applies. deference that this Court typically applies legislative enactments is diminished when judicial the issue compensation, involves branch because of the very same constitutional edict.

Thus, if even the effect of the in judicial reduction compen sation resulting appeared from to be in warranted faith good judgment of the Legislature, legislative motiva Rather, tion not of primary importance. is at stake “[w]hat very independence is the of the judiciary preservation and the 165, of of separation powers.” Jorgensen, 285 Ill.Dec. at N.E.2d If the General the au possessed thority compensation reduce in to a response politi- of a adoption the content manner against cal backlash V, and in of Article Section provision, violation 16(a), pursuing no it from preventing there barrier would Judiciary, of the attacking independence means other concerning in Tate by this Court expressed and the concern very could well Judiciary of the independent the destruction come to fruition. 16(a), Y, discussed Article Section previously

This Court has in the sub specific posed of the issues matters but not terms Firing, In 466 Pa. A.2d Court judice. Administrator addressed the issue whether State Court a salary wrongfully Treasurer diminished State (now his judge) during district justice peace magisterial of the 16(a). justice The of the term of office violation Section birthday, his mandatorily upon was retired seventieth peace V, 16(b), years remain- to Article Section with three pursuant ing justice peace on his term of office. six-year in the petition filed a for review in nature of mandamus salary of his alleging Court that the reduction Commonwealth 16(a). resulting ap- from his retirement Section On violated of the of the justice peace this Court held that the term peal, thus, upon age his retirement at he was expired seventy, retirement, not entitled his the balance of his salary, holding, In of this noted the follow- support elected term. we 16(a): ing Section concerning of the purpose prohibition against well-established

[T]he their judiciary during of the diminishing compensation 16(a) office, ... is to maintain terms contained Section independence of the from encroachment judiciary of government. other branches

Id. at 837. 16(a) in Flack v. Barbi-

This Court next addressed Section (1980). Flack, eri, rejected In Pa. 410 A.2d 1216 we 16(a) justice peace from district challenge who unconstitutionally diminish- alleged his concerning a error salaries by ed the correction of clerical new magisterial of all population based on a recertification of This the 1970 census. Court using districts United States 584

determined that no of salary diminution occurred an because administrative oversight jus- or clerical error in the resulted peace tice of the receiving salary higher than that which to he was entitled. We then added purpose that the of Section 16(a) preserve Judiciary’s is to independence, and that this purpose was not impeded this case. id. See at . Numerous other decisions by this Court have addressed 16(a) benefits, Section of the context judges’ pension have held that pension part benefits are the adequate of compensation 16(a), mandated by Section General Assembly See, may arbitrarily e.g., reduce. Klein v. Com- monwealth, 330, System, State Ret. Employees’ 521 Pa. 555 (1989) A.2d 1216 (plurality opinion); v. Casey, Goodheart (1989) Catania, Pa. (plurality A.2d 1210 opinion); 1342; Pa. 450 A.2d McKenna v. State Ret. Employees’ Bd., (1981) Pa. 433 A.2d 871 (plurality opinion); Wright 75,134 v. Retirement Bd. Allegheny 390 Pa. County, of (1957). A.2d 231

b. Given our cases recognized purpose have protective it is provision, foreseeable that Act 72 would by be defended appellees grounds on its supposedly benign But, purpose. merely Assembly because General salutari ly it claimed did not independence intend interfere with the of the Judiciary, that does not mean that the legislation must be deemed As correctly by constitutional. Judges, noted 16(a) the constitutional test set forth in Section not whether Assembly indepen General intended interfere with Judiciary, dence of the but rather simpler, straightforward question whether diminished apply generally law that does not to “all salaried officers Commonwealth.” Because the policy declaration announced 1(b) by the General Section of Act is not probative question posed plain language 16(a), Indeed, inquiry. cannot control our for this accept Court to the notion legislative pronouncements intent benign can control a concerning constitutional inquiry diminishing judicial compensation would be tantamount

585 to the independence, our duty, and ceding our constitutional branch. Judges by the argument primary forwarded c. single exception not fit Act 72 within why as to does 16(a) not is that the Act did diminish in Section provided of the Commonwealth.” all “salaried officers noted, inter there no case law is agree. previously As We terms, However, similar such defining phrase. or preting officer,” in other are “public found “officer” and in numerous been have addressed provisions constitutional Werner, in this See decisions Commonwealth. appellate court III in (determining Special Investigator A.2d that 681 at 1337 Article an “officer” under was not Inspector General’s Office Constitution, VI, and that Pennsylvania explaining Section 7 if officer public person be deemed a person will “[a] impor grave duties of a and perform or elected to appointed of the character, some functions and which involve tant term.”); at 623 a 147 A.2d Vega, for definite government, but “public chief a officer” (concluding police outlining a a under statute merely employee” “public officers, borough and police for the removal of procedure public a determining noting applied that “the test to electorate, is ... the officer chosen officer [whether] a certain tenure the manner for and appointed, definite of grave duties are and law an office whose provided by character, gov functions involving some important ernment, public for the benefit of the are to be exercised ....”) treasury out of the compensation paid public for a fixed Alworth, 352); ex rel. Pa.Super. at 85 Commonwealth (quoting 369, 467, A.2d 393 Pa. 372-73 Hampson, v. Foreman (1958) “county county solicitor was not a (determining that XIV, Pennsylvania 1 of under Article Section officer” to the tests announced Alworth pursuant Constitution Moore, Richie); 266 Pa. ex rel. v. Goshorn Commonwealth (1920) curiam; adopting opinion (per 109 A. Court) were commissioners Superior (finding registration III, of Article meaning officers” within the “public for Constitution, Richie citing Pennsylvania of the following factors determining “public for officer”: “the duties the officer are to be benefit exercised of the for a public stipulated compensation paid by public”; “the certain”; term is definite and the tenure “the powers, duties, and emoluments become vested a successor when vacant.”); the office becomes Commonwealth ex rel. v.Wolfe (1913) 238 Pa. 86 A. Moffitt, (concluding directors poor County for Washington were officers” “public III, Constitution, Article under Section 13 of the noting and that “wherever an officer important exercises delegated duties and has to him some of the functions of term, government, and his office is for a fixed and the power, duties, and emoluments become vested in a successor when vacant, the office may becomes such official be called properly officer.”); Richie, a 431 public (determining 74 A. at that term III, officer” in “public Article 13 of Section the assessor; Constitution real encompassed appointed estate fac to tors be are examined “the nature of the to service be incumbent,” performed by him,” the “duties upon the imposed character, whether “those duties are of a and grave important involving the proper performance some of the functions term.”); of government,” “a fixed v. and Houseman Common (1882) Tener, ex rel. 100 wealth Pa. 222 that a (finding receiver of delinquent VI, taxes was a officer” “public under Article Alworth, Pennsylvania Constitution); Section of the Pa.Super. at legal the for the (determining counsel Board Registration Commissioners for the City of Scranton was “public III, not meaning a officer” within the of Article Section Constitution, the Pennsylvania 13 of stating following “If electorate, test: the officer is chosen by appointed, or for definite provided a and certain tenure in the by manner to an grave law office whose duties are a important character, some of involving the functions of government, and be are to exercised for the for public benefit a fixed of the compensation paid public treasury, out it is safe to say officer....”). a public the incumbent is here, For purposes of decision it is necessary pronounce precise a comprehensive definition the term in Sec- as provided the Commonwealth” “salaried officers of 16(a). above is that from the cases tion can be distilled What person determining important are whether certain factors (1) officer,” including: “public an “officer” or can be said (2) position; or elected person appointed whether important grave of a person performs duties whether (3) some of involve character; performed the duties whether (4) per- duties whether government; functions of (5) public; whether for the benefit formed are treasury; salary public fixed out of paid receives a person (7) fixed; and (6) term is definite or the person’s whether duties, emoluments become vested powers, whether An evaluation of office becomes vacant. when the successor factors, officers to the numerous applied the above listed conclusion that leads to the unavoidable Judges, cited officers of the of “all salaried pay not diminish the Act 72 did (includ- the executive officers example, For Commonwealth.” members) Judges obviously are named cabinet ing Therefore, reduction of Act 72’s officers. public salaried exception single not fit within the judicial compensation does 16(a); thus, V, is unconstitu- provided Article judicial compensation.24 to the extent decreased tional 16(a) “all salaried qualify 72 the Section Act does second, reason. As independent for a exception officers” the current 72 not diminish by Judges, the Act did noted structure was salary the officers whose salaries of executive noted, the previously in Act 44. As specifically addressed by and affected identified specifically elected executive officers Governor, Governor, the 44 the Lieutenant Act include the General, Gen- Treasurer, Attorney and the the Auditor State 1102-03). The 44, (amending § §§ 3 71 Pa.C.S. eral. Act identified and affected specifically members appointed Cabinet General, Secretary of Adjutant Aging, the by Act 44 the were argument narrower respect the With to Senator Jubelirer’s 24. because, necessary by Assembly was adopted the General definition otherwise, of exception prohibition the on the diminishmeiit the to III, 16(a) with Article compensation in would conflict judicial Section 27, authority any we the Senator does not cite note that event, perceives any position. the conflict the Senator support of his In 16(a). ground ignore the of Section command is an insufficient Secretary the of Secretary the of the Agriculture, Banking, Commonwealth, Secretary of the Secretary Community the of Development, and Economic the Secretary of Conservation Resources, Correction, and Natural of Secretary the the Sec- Education, of retary Protec- Secretary Environmental tion, Services, Secretary Secretary General Health, Commonwealth, the Insurance Commissioner of Secretary Industry, Secretary Labor and of Public Welfare, Revenue, Secretary the Pennsylvania State Commissioner, Police Secretary Transportation. 1102(c)). (amending Id. § Pa.C.S.

The salary increases for the provided named elected execu- officers, formulas, tive pursuant to Act applicable 44’s were only 7, individuals elected to July these offices after the Act, 44, 4(4); § 2005 effective date of the see Act correspond- ingly, salary applicable increases to the named Cabinet officers, formulas, Act under the were not available to individuals appointed 31, these offices until after December 4(3). 44, Thus, § see Act salary formula-based provided officers, increases to these named executive unlike in compensation increases provided Judiciary to the Legislature (through guise expenses), unvouchered never became effective because Act Act 44 repealed before any of these officers executive were either elected or appoint- Therefore, ed. none of officers, because the named executive all, and in fact no executive officers at their had salaries Act increased none had their salaries decreased Act 16(a)’s 72. Accordingly, Section exception does not apply, Act 72’s reduction of compensation cannot withstand scrutiny constitutional for this independent reason.25 addition, 1(c) provided In under the definition in Section of Act pronounced the General specifical- that the executive officers ly named in Act 44 are “salaried officers of the Commonwealth.” Governor, officers named include the the Lieutenant Gover- nor, Treasurer, General, General, the Attorney State the Auditor the the General, Adjutant Secretary Aging, Secretary Agriculture, the of the of Secretary Banking, of Secretary Community the the of and Economic Commonwealth, Development, Secretary Secretary the the of the of Education, Protection, Secretary Secretary the of Environmental the of Services, Health, Commissioner, Secretary General the of the Insurance considering by for our conclusion support find further We 16(a). in Section exception provided of the limited purpose the noted, intended as a failsafe exception the was previously As crisis, aiding thus the Common- economic during a state-wide crisis. As noted during in such a maintaining solvency wealth July November 2005 between and Judges, period the the by fact, Act 72 In was by disruption. not economic marred outrage over lingering in an to assuage public effort passed 44, expressed Act seemed to be of provisions certain Nigro’s Justice narrowly rejected the former electorate when for retention. bid issue, the impact of

Turning concerning to the second 1(b) (c) declarations Sections Assembly’s policy General those declarations Judges Act with the agree we have analysis engaged alter the constitutional we cannot noted, the Assembly’s As General previously above. we have 1(b) contrary plain language is to the declaration Section V, 16(a). forth in the Article Section The test set constitution- Assembly intended to not the General al whether but Judiciary, with the rather independence interfere reduced a law that does compensation was whether to “all of the Common- apply generally salaried officers intention of the General does stated wealth.” the mandate of the constitutional supplant not and cannot provision. l(c)’s definition of “salaried offi

Turning to Section Commonwealth,” is correct that cers of Senator Jubelirer or Executive to inter Legislature it is not uncommon for the exercise of their provisions during constitutional pret However, as the Senator constitutional duties. respective Welfare, Secretary Secretary Industry, of Public of Labor Revenue, Commissioner, Secretary Secretary the State Police Corrections, Secretary Transportation, Secretary of Con- Resources, Penn- and the Commissioners servation Natural (reenacting § sylvania Utility Act Public Commission. 39, 3(a), (b)). amending § Act Similar to the officers named Act these salaries reduced Act 72. none of named officers had their Thus, even definition of "salaried officers of Common- under the Assembly, satisfy provided by 72 fails to wealth” the General V, 16(a). provided exception in Article recognizes, the ultimate power authority to interpret Pennsylvania Constitution rests with the and in Judiciary, Const, Court. See particular with this V, § art. 2.26As Pa. noted, already we have the legislative definition is contrary the plain 16(a), meaning Section as well as substantial case examining Moreover, law the definition of a public officer. we recognize Assembly obviously General crafted its definition of the constitutional term in hope of controlling V, 16(a)’s this Court’s construction of Article Section limited exception. The inclusion of the definition reflects the Gener- Assembly’s al palpable awareness that Act 72 was constitu- tionally suspect, to the extent that it decreased com- pensation. Therefore, respectfully we decline to accept as l(c)’s controlling Section definition of “salaried officers of the V, 16(a). Commonwealth” for purposes of Article Section The issue that remains is whether unconstitution aspects al of Act may be severed from the remaining First, provisions of the Act. we note that Act unlike Act does not contain a nonseverability Second, provision. that, parties do not if argue this Court were find Act 72 unconstitutional applied to the reduction in judicial compen sation, the provisions relevant would be severable. Ac cordingly, our decision is guided by the presumption of sever- ability provided Section 1925 of the Statutory Construction Act, 1 § 1501 seq.: et Pa.C.S. provisions

The of every statute shall be severable. If any provision of any statute or the application thereof to any person invalid, or circumstance is held the remainder of the statute, and the application provision of such per- to other circumstances, sons or shall not be thereby, affected unless the court finds that the valid provisions the statute are so essentially with, and inseparably connected depend and so 26. As stated Alexander Hamilton in The Federalist No. 78: interpretation proper peculiar province laws is the fact, be, the courts. A regarded by constitution is in and must judges as a belongs fundamental law. It therefore to them to ascer- meaning meaning tain its any particular as well as the proceed- act ing legislative body. from the The Federalist No. 78. it cannot application,

upon, void enacted General would have presumed the one; or unless provisions without void remaining valid standing remaining provisions, that the valid the court finds being executed alone, incapable and are incomplete are intent. accordance with the presumption § exceptions 1925. The two Pa.C.S. here applicable 1925 are not severability noted judicial the increase provisions repealing Act because: 72’s connected essentially inseparably and compensation are 72; and, valid remaining of Act provisions the other with capable being executed unquestionably are provisions PAGE, at 877 A.2d with the intent. See accordance 488, Mockaitis, 5, 403; v. 575 Pa. 834 A.2d Commonwealth (2003). 502-03 and sum, Act 72 clearly, palpably, plainly

In we hold that com- judicial to the extent that unconstitutional diminished compensation, directly Act 72 diminished pensation; the narrow implicate and it did so in a fashion which does not However, V, 16(a). provided in Article exception Act, Statutory our under Section 1925 of Construction taint re- of this effect does not finding unconstitutional Thus, remainder of Act of Act 72. we find that the mainder of Act 44 repeal 72’s is valid.

III. OF ACT CONSTITUTIONALITY

44: APPEAL THE STILP

A. Introduction 44, (Judiciary entitled Titles 42 [ajmending Act “A[n] A[ct] (State Procedure), (Legislature) and 71 Gov- Judicial ernment) Statutes, providing Consolidated for an estab- compensation; making repeal,” inconsistent plan tying formulas comprehensive adopted lished which compensation compensation and future increases in Assembly, top execu- Pennsylvania Judiciary, General members of judges, tive officials to salaries of federal example, officials. For Congress, top federal executive paid Act 44 the salaries Court provided that Justices be paid would the same as the base salaries to circuit judges of the Courts of Act Appeals, § see (amending Pa.C.S. 1802(a)); § paid salaries to members of the General Assembly equal to 50% of the salary paid were base to members of Representatives, § United States House of Act see 1102); (amending § 46 Pa.C.S. and the salary paid be equal Governor was to to 85% of base salary paid to the States, President of the § Vice United see Act 3 (amending 1102(a)). § 71 Pa.C.S.

In addition to the provisions adopting new formulas, Act 44 several constitutionally contained problematic provisions. One such provision expense was unvouchered provision, applied exclusively to the Legislature. As noted, previously this provision permitted legislators current to receive the dollar-for-dollar equivalent their salary future increase immediately through the mechanism of unvouchered expenses, payments upon with ending each individual 44, § next See legislator’s election. 2 (amending 46 1107). § Pa.C.S. Another problematic nonsev- (cid:127) clause, erability adopted in apparently anticipation litiga- tion, provided any if provision of Act the were unconstitutional, deemed the entire Act would be void. See 44, § Act 6.

Stilp raised several constitutional to Act 44. In challenges of light challenges, these to parties we directed address following five issues: (1) Stilp Whether has standing bring to an action challeng- ing the of Act 44? constitutionality (2) Whether the General of Act Assembly’s adoption 44 violated:

a) III, Article of Pennsylvania- Constitution; Section 1 b) Section, III, Article 2 of Pennsylvania Constitution; c) III, Article of Pennsylvania Constitution; Section 3 and/or

d) III, Article Section 4 of the Pennsylvania Constitution? (3) Whether the of system unvouchered expenses estab- 44 Constitution, lished Act violated the Pennsylvania

593 reconsider overrule Court should this whether and/or v. Common- Pennsylvania Party decision Consumer (1986)? wealth, 158, Pa. 507 323 A.2d (4) unconstitu- of Act is deemed any portion In the event tional, nonseverability provision enforcement whether 16(a) V, violate Article in the statute would Constitution? (5) are moot? challenges constitutional Stilp’s Whether 889 A.2d 499. Stilp, over jurisdiction plenary this Court assumed

Again, because under matter, or order there is no lower court decision thus, our purely legal; are questions involved review. is de our standard review scope plenary review questions and fifth first first novo. We will address standing or of mootness would finding a either no because chal- the constitutional addressing for necessity obviate Commission, Pa. v. State Ethics lenges. See Ballou (“[Wjhen (1981) both constitu- a case raises 436 A.2d issues, a not reach court should tional and non-constitutional if be decided on properly the case can the constitutional issue grounds.”). non-constitutional Standing

B. matter, of this purposes and for- preliminary As challenge Stilp standing has accept we appeal, has Stilp find that constitutionality Specifically, we necessary taxpayer standing requirements satisfied recognition exception of this traditional consistent with the Biester, in Application announced standing requirements Biester, (1979). taxpayer Pa. 409 A.2d 848 Under (1) governmental challenge an if: standing has act (2) unchallenged; directly those go action would otherwise benefi matter are immediately complained-of affected (3) action; challenge cially affected and inclined (4) through other chan is redress appropriate; relief (5) better unavailable; other are persons is no nels Park, Pittsburgh claim. Palisades LLC to assert the situated (2005) Commonwealth, 655, 196, 662 (citing Pa. 888 A.2d v. 585 594 329).

Consumer 507 If Party, A.2d at not for chal- Stilp’s lenge, go Act 44 unchallenged would because the individ- very uals the legislation ie., who enacted members — General Assembly directly and beneficially affected —were the legislation and thus challenge would not be inclined to its Therefore, constitutionality. first requirements two are satisfied. Judicial relief is appropriate because it is the court’s role to the constitutionality determine of a piece Furthermore, legislation. through redress other is channels unavailable since there are agencies no or tribunals with jurisdiction to grant sought the redress by Stilp. Lastly, there are persons no other better situated to assert the claim because all directly those immediately affected 44 are affected beneficially by the Act and have not brought, are not likely bring, cause of action state court.27 This is especially so because Act repealed 72 has now Act 44. Accordingly, has Stilp taxpayer standing to maintain this action.

C. Mootness Additionally, that, we find Act 72’s notwithstanding repeal 44, of Act Stilp’s challenges constitutional are not moot. Commonwealth, See Jubelirer, Dep’t Envtl. Res. v. Pa. 531 472, (1992) (where 211-12 A.2d challenged statute later repealed, judicial of its constitutionality consideration moot). of our Because above provi determination that sions of Act repealing the Act 44 formula which resulted unconstitutional, Judiciary increases are part of Act at least presumptively, is still operative. Stilp’s challenges regarding procedural Article III there flaws fore Moreover, are not moot. Stilp’s challenge constitutional to Act 44’s unvouchered expense provision and related his challenge to precedent this Court’s Party Consumer are Representative 27. We Greg note that plaintiff Vitali was a federal in a challenged court action constitutionality of Act 44. See Commonwealth, Common Cause v. Civ. No. Action 1:05-CV-2036, (M.D. F.Supp.2d WL June Pa. 12, 2006). however, action, legislator, joined Stilp present No in the any nor challenge. did file court a state

595 purports nonseverability provision Act 44’s because renewable if any of Act 44 individual declaring all void require unconstitutional. were deemed Challenges D. Article III Procedural violated the General Stilp maintains 1- III, in Article Sections provided procedural protections decision recent 4 of the Constitution. Our PAGE, a PAGE, In subject. this controlling on supra, procedure by which challenged petitioners group Development Gaming and Pennsylvania Race Horse enacted, Act”) that the Assem arguing General (“Gaming 3, 4, 6, III, and 10. Prior Article bly violated Sections challenge, constitutional analysis this Court’s of each"discrete III: adoption behind the of Article reasoning discussed the we III as a constellation of constitutional Article can viewed govern various requirements aspects Each of these was born procedure. provisions enactment rapid Pennsylvanians experiencing were time ” “ economically ‘wrenching’ change.... and social growth corporate An form of business growth enormous and concentrations of wealth organization significant led Corruption of numerous took corruption legislators. arbitrary and special legislation, logrolling, form of laws met with a demand for reform. favoritism and was re- convened to Constitutional Convention 1872-73 was end, behavior, result and to corrupt legislative form III. strictures contained in Article was the constitutional Thus, changes originated to the while these Constitution power of fear of tyrannical corporate time during unique their value and these mandates retain legislative corruption, on constitutional limitations today by placing even certain the legislative process. omitted). (citations

PAGE, A.2d at 394 and footnote “to restraints on purpose place Article Ill’s Generally, an encourage open, deliberative legislative process at 838 A.2d government.” City Philadelphia, accountable (quoting Pennsylvania George AFL-CIO ex rel. Com- v. monwealth, (2000)). 563 Pa. A.2d

Following preliminary regarding jurisdiction determinations standing, the PAGE court comprehensively surveyed summarized guiding principles III, in the area of Article ultimately holding majority Gaming Act passed muster; however, constitutional we did strike certain portions of the Gaming III, Act as violative of 3 Article Section pursuant PAGE, to provision.28 the Act’s severability 877 A.2d at 419. with Specifically, regard subject to single III, requirement of Article single Section we found that the subject of the unifying Gaming Act was the of regulation and that of gaming, majority a the Act’s for provisions, except certain provisions,.were germane disbursement to single this subject. Id. at 404. We also determined that the of title Gaming put person a reasonable on notice the general subject Act, matter of the satisfying therefore the clear ex- pression of title requirement provided III, in Article Section 3. III, Id. at 406. Concerning the Article 1 challenge, Section we that process by concluded the Gaming which Act was enacted did not violate the constitutionál provision’s prohibi- tion on alteration or change amendment so as to the original purpose Act. Id. at 409-10. Finally, regard with to the III, challenge raised under Article Section we concluded that because the had petitioners failed to a establish violation III, Article 1 under and because the record demonstrated that the bill ultimately which became the Gam- on ing separate House, Act was read three occasions each a petitioners prove failed Section violation. Id. at 410. When a challenge is concerning forwarded process by enacted, legislation which than rather the sub stance of the legislation, comity concerns of separation Gaming severability 28. The a stating provi- Act contained clause that sions of Act were to be except deemed severable limited two exceptions concerning Pennsylvania Gaming Control Board and the 1902; PAGE, § Slot Machine License fee. See Pa.C.S. 877 A.2d at severability We that general n. 3. note follows the statutory provisions every construction rule statute shall be § deemed severable. Pa.C.S. such necessarily arise. Cases the branches powers between its seriously takes Court demonstrate PAGE government, branch equal coordinate responsibility as.a deference to showing appropriate while measure affecting matters branch it comes to when It worth legislative process.29 of bills and the mechanics that, government, although this Court our noting system constitutionality, on the obligation has the final word decidedly Constitution, the Pennsylvania the mandates of abide the General procedural governing those restraints including branches, III, to all three applies found Article assumption our proceed upon cynical and we do obligations do not take their constitutional sister branches power, arguably duty, It is is the seriously. within Governor, to his of each individual and the consult legislator, the constitutionality proposed or her conscience about own it or it. legislation in endorse deciding support whether that, govern in our form of We also note democratic methods, lawsuits, ment, may there are other besides excesses, legislative primary as a tool for serve corrective This case borne being political process method itself. has legislative out The process. appellees the effectiveness of re very point have this several emphasized themselves overstate, however, that spects. We cannot we would because approve patently legislation merely unconstitutional process correct political could it. constitutionality afforded strong presumption the procedure legisla enactments includes which PAGE, Thus, tion 44 cannot is enacted. 877 A.2d at 393. find that it clearly, deemed unconstitutional unless we and palpably, plainly violates Constitution. See id. deference, Notwithstanding salutary

29. this Court does not avoid reviewing procedural challenges, III its constitutional task of Article striking clearly palpably legislation down and violates the supra, example, City Philadelphia, a Constitution. For we struck III, 3, finding constitutionally statute as infirm under Article legislation proposed subject qualify too broad as a that the was single subject. A logical for a beginning discussion of Article III procedural challenges is the sequence of events surrounding the passage of Act 44. The relevant facts are matters of public record and 3, 2005, (“HB are not in dispute. May On House Bill 1521 1521”), 1865, printer’s no. page document, one was intro- duced in the House of Representatives as “An [Relating A[ct] to compensation for executive branch officials.” HB 1521 contained a provision its short title declaring to be the “Execu- tive Branch Official Act.” Compensation Aside from a defini- section, tional HB 1521 contained a single provision which directed that no executive official could an receive annual salary exceeding the annual salary paid to the Governor. On the same House, date that it was introduced HB 1521 was referred to the and, House State Government Committee thereafter, reported 11, was May committed on 2005. It had its 11, 2005, first consideration the House on May but was then 6, tabled. It was given second consideration on June 2005. HB 1521 was then re-referred to the House Appropria- 6, 2005, tions Committee on June and re-reported as commit- ted on that date. It given 8, was third consideration on June 2005, and 8, received final in the passage House on June by a vote 157-40. 13, 2005,

On June HB 1521 was referred to the Senate State Committee, Government reported as committed on 30, June 2005. HB 1521 30, was first considered on June received second consideration on July It was then re-referred to the Senate Appropriations Committee on July 6, 2005, 2005. On HB July 1521 was slightly amended (No. 2561). given printer’s new number It remained a document, one-page and the amendment merely added a sec- tion providing that the act applied only to executive officials who took office after November 2006. This amended version of HB 1521 was then re-reported to Senate and received third 6, consideration and final passage July on by a vote of 28-22. 6, 2005, July

On the new version of HB 1521 was referred to Committee, the House Rules and reported as on committed that date. The House non-concurred in the Senate amend- ment, on insisting non-concurred in response, and the Senate consisting of three A committee its amendment. conference July On duly organized. from chamber members each was and amended conference by HB 1521 altered was HB committee’s version of The conference new committee. printer’s a new twenty-two pages long, now had was (No. 2570), given and a new title: “A[n] A[ct] number was Procedure), 46 42 (Judiciary Titles and Judicial [ajmending (State Government) (Legislature) and mak- Statutes, and providing compensation; for Consolidated HB This ing repeal.” an inconsistent version 119-79, passed by by the House a vote passed by It into law signed a vote of 27-23. was then Senate July morning Act 44 in the hours of early Rendell as Governor 7, 2005. align necessary it is beginning analysis,

Before our on their stated camps into based parties and amici two III regarding alleged Article violations. positions (3) (1) (2) Casey, Treasurer Stilp, first includes group Potts; Diamond, on amicus of PA Clean Russ behalf Timothy Inc.; RocktheCapi Eric Sweep, Epstein, Coordinator “Potts”). (hereinafter, alleges Collectively, group this tal.org III, 1-4 Article Sections Assembly that the General violated 44.30,31 and Treasurer of Act Both during passage Stilp Casey that 44 sur- one "concedes” Act 30. There is caveat: Treasurer III, noting, scrutiny howev- vives under Article constitutional followed, er, may "although letter Section 3 have been that spirit.” Treasurer did considerable violence its General Casey’s Brief at 13. brief, analysis how as fo In its amicus Potts does offer detailed provision. of each individual constitutional 44 violates the strictures Rather, an- argument its decisions the thrust of Court's analysis subject, particularly Con- nouncing approach our on this PAGE, they led to Party and be reconsidered because have sumer should III, believing Assembly falsely Sections 1-4 are that Article General circumvented, leading thus to “stealth mere technicalities can legislation” exemplified by Act 44. Potts, Stilp Casey for Unlike and Treasurer do not ask reconsidera- Indeed, PAGE, year ago. approximately one tion of case issued agree analysis that must be conducted parties PAGE controls legal evaluating present challenges. principle Article III The basic judicial respect prior generally decisions of stare decisis commands Casey divergent offer in slightly reasons of this support therefore, position; arguments their be sepa- will summarized (1) rately. The second the group includes remainder of the i.e., appellees, Attorney General Corbett on behalf the Commonwealth, (2) Jubelirer, Perzel, Speaker Senator and (3) amicus Herron, amici Judge appellants. and Brown Because this similar group arguments defending offers constitutionality 44’s in the face of challenges, the Article III summarize them as we shall one. for ease Additionally, ..and clarity discussion, III, we will discuss Article challenge first. III, challenge

1. Article Section 3 III, Constitution, Article Section 3 of the Bills,” entitled “Form in provides full: bill No shall be passed subject, more than one containing title, shall be clearly expressed except'a which its general bill or a appropriation bill codifying compiling law or thereof. part Ill, § Const, art. 3. This constitutional provision “sets Pa. forth dual for mandates the General prohibits bill passing of a that contains than subject more one and requires subject expressed clearly its title.” PAGE, at A.2d

Stilp merges arguments his and single-subject clearly expressed title requirements. Regarding single- directive, subject Stilp subject argues of the original of HB version 1521 was to ensure that no executive official legal this Court and rules contained in those decisions. As recently Court, Supreme noted the United States "stare decisis evenhanded, promotes predictable, development and consistent decisions, legal principles, judicial fosters reliance on and contributes perceived integrity actual process.” to the of the Randall Sorrell,-U.S.-, 2479, 2489, (2006) v. 126 S.Ct. 165 L.Ed.2d 482 Court) (citations Announcing (Opinion Judgment and internal omitted). quotations persuasive Potts has articulated no reason to recently approach overrule the we so applied articulated and in PAGE. Court precedent particularly This where, is disinclined to revisit such recent here, challenging party is an to amicus fails acknowl- at-, edge argue principles. generally stare decisis See id. (Alito, J., concurring part at 2500 concurring judgment). S.Ct. main- Stilp salary than the does. higher receive a Governor HB which addressed amendments tains are government, all three branches compensation for clearly to the subject. respect original With germane original that the title argues title requirement, Stilp expressed for execu- [Relating HB A[ct] “A[n] 1521— on notice that anyone place branch officials”—did tive to the changes substantial as enacted involved ultimately 44 of govern- all three branches compensation system governing ment. Assembly did not violate counter that the General

Appellees III, in Act 44. contend enacting Appellees 3 Article Section unifying a single HB 1521 maintained all versions of Appel- for officials. subject i.e., compensation government — during provisions contend all added lees also subject. this single Appellees process germane were 42 [ajmending 44’s Titles that Act argue “A[n] A[ct] title — Procedure), 71 (Legislature) 46 (Judiciary and Judicial Government) (State Stat- Consolidated utes, making an inconsistent providing compensation; for read it a could person clear because reasonable repeal” —is provisions affecting compensa- that it amends the and discover Judiciary, Legislature, govern- and state provided tion ment. PAGE,

In this Court reaffirmed the standard challenge: provisions a “where the reviewing single-subject a legislative process carrying assist out during added objective to the bill’s ‘germane’ main or are otherwise bill’s title,” stricture subject single-subject as reflected its PAGE, (quoting City A.2d at Philadel satisfied. 877 395 587). review, a a court conducting A.2d In such 838 at phia, objective of bill narrowly, not define the main too must defer thus must afford the General considerable ence, III must not become license for Judicia as Article tyranny” Legislature’s over the pedantic “exercise a ry Estate (citing 838 A.2d at 588 City Philadelphia, efforts. 899, (1986)); v. Rochez, Payne A.2d 902 see 511 Pa. 515 Pa. 31 A. Borough, Dist. 168 Coudersport School 602 (1895) (“Few bills are elementary so in character that ”).

they may not be several subdivided under heads.... Con- versely, there also be limits on broadly must how a main objective germaneness, defined well as on or else the strictures announced Section “would be rendered impo- tent to guard against the evils that it designed to curtail.” (“There City Philadelphia, A.2d at 588 must be limits ... as otherwise all virtually legislation, no matter di- how substance, verse in would meet the single-subject require- ment.”); PAGE, (“Article III, see 877 A.2d at 395 Section 3 have, however, on germaneness, must some limits for other- virtually legislation wise all matter how diverse sub- —no stance—would meet the single-subject requirement, rendering the strictures of A. nugatory.”); Payne, at 1074 (“[N]o subjects apart two are so may wide not be they brought focus, into a common point if the view carried ' far back enough.”).

Here, we that HB single conclude 1521 maintains a unifying subject regulating compensation for government officials. — Specifically, the of HB as passed adopts version 1521 formulas which resulted in increased compensation for the Judiciary, Legislature, officials, executive high-ranking pro- a vides tying mechanism future state offi- to cials to compensation provided federal offi- designated All of the provisions cials. contained Act 44 germane are to subject of regulating compensation for offi- government Accordingly, cials. we hold Act 44 that does clearly, III, palpably, plainly violate Article Section 3’s single- subject requirement.

Turning to the clearly expressed challenge, title this Court set forth in PAGE the burden that a party must overcome to sustain such a challenge: seeks who to “[0]ne a declare title unconstitutional under this must (1) demonstrate either that the legislators public and the were actually deceived to the as act’s contents at the time of (2) or passage, that the title on its face is such that no reasonable on person would have been notice to the as act’s PAGE, Rochez, contents.” 877 A.2d at 406 (quoting Estate of

608 “if 902). words, a constitutional In other title is A.2d at subject general on notice of person a reasonable puts Pennsylvania Turn Ewalt v. of the act.” Id. (citing matter (1955)). Commission, 529, 115 A.2d Pa. pike 44’s title with its comparison of Act Based on a simple to an contents, that has failed establish Stilp we conclude III, of title violation. expression 3 clear Article Section gov- provisions 44 amends the indicates that Act clearly title of the three branch- to the members erning compensation paid Indeed, title of erroneously cites the government. Stilp es of HB 1521 the title of Act unamended version as Furthermore, does not by legislators. Stilp on voted Act actually 44’s any legislator deceived as allege aver any legislators nor do passage contents at time of Finally, clearly puts title. the title being deceived subject matter of general notice of the person reasonable on strong presumption recognizing Act. Accordingly, must, passes Act 44 constitutionality, we hold that as we under 3’s clear expression constitutional muster Section requirement. title III, challenge

2. Article Section III, Next, Article Stilp contends violated entitled provision, 1 of Constitution. This Bills,” “Passage of provides: bill,

No shall be and no bill shall be so passed except law House, amended, through on its either passage altered its change original purpose. Const, Ill, PAGE parties § All sets forth agree art. Pa. the relevant for a under Article inquiry challenge legislation III, test PAGE Section 1. Court set forth a new Notably, First, provision. reviewing court under constitutional “in legislation of the rea- original purpose must consider terms,” it to final and sonably compare purpose, broad there been an alteration or amend- then decide whether has Second, original the court changed purpose. ment that in of the bill its must consider whether title and contents legislation passes form are “If the both the deceptive. final purpose comparison deception pass and it con- inquiries, will PAGE, stitutional muster.” 877 A.2d at 409.

Stilp original purpose maintains that of HB 1521 to ensure that the highest was Governor was the execu paid tive official that purpose drastically and was during altered result, process. the amendment argues, he uneonsti- tutional in legislation providing large raises for compensation Judiciary, the General Assembly, high-ranking and execu tive Regarding officials. prong, Stilp argues second original title of HB to com [relating “A[n] A[et] 1521— pensation executive branch officials”—was as deceptive notice, to provide failed of the substantial of the overhaul to officials all paid govern three branches of ment. Casey

Treasurer only addresses the first prong test, arguing original PAGE that the version of HB the enacted version of the bill share the common purpose “compensation.” The Treasurer maintains a pur- that such pose too broad general be constitutional under stricture, Section l’s particularly light state- Court’s ment that the aim of Section is degree continuity “some object or intention.” Id. at 408.

In response, appellees contend that the original purpose 1521, terms, HB in reasonably viewed broad provide was to compensation for government Appellees argue officials. the amendments made to HB 1521 were consistent with this Moreover, purpose. appellees maintain that the title and contents of HB 1521 in its final form were not deceptive, the record does not that any legislators reflect who voted - the bill did so because against they were unclear of its contents. PAGE,

Applying first note that original we version HB in the May introduced House on directed that the paid Governor official in highest the Executive Considering original branch. purpose reasonably broad terms, our consistently with discussion above concerning single subject challenge, we find the original purpose

605 government for regulate compensation to of the bill was signifi- in final form acknowledge that HB 1521 officials. We find, version. We cantly expanded original amended throughout however, object of the bill that the principal regulating inception passage from to was legislative process con- Accordingly, we for officials. government to change altered or clude that the was not amended bill Legislature. passage through original purpose announced in of the construct prong As for the second PAGE, of the the title and contents must consider whether we our In accordance deceptive. in its final form were with bill title concerning clear Stilp’s expression determination above III, title find challenge under Article Section we placed not deceptive form HB 1521 final was subject general on of the matter person reasonable notice Moreover, PAGE, concerning 877 A.2d at 406. the bill. See contents, acknowledge that amend- although the final we end the legislative HB were included at the ments to substantive, we find that the amendments process and were deceptive. not were presump- of the

Accordingly, again being once mindful not constitutionality, conclude that HB was tion we both houses passage through or amended altered of the bill. change original purpose so as to III, challenge 3. Article Section III, Act 44 also violated Article asserts that Stilp This entitled provision, Constitution. Committee; Printing,” states that: “Reference committee, referred to a No bill shall be considered unless of the members and returned therefrom. printed the use Const, Ill, § 2. Pa. art. substantially HB 1521

Stilp that because argues amendments, required the final version was altered asserts that Stilp be re-referred to committee. further HB the final version of clearly indicates that legislative history to all legisla- distributed printed 1521 could have been tors enough fully with time to comprehend review legislation on prior July the vote Casey

Treasurer that proper procedure contends under requires Section 2 bill be reported standing out of a in each committee House before the its three first of consider- ations in each The House. Treasurer maintains that the Assembly General this procedure violated because final the version of HB 1521 reported was out of a conference commit- given tee and then its first and only consideration the same day passed. that it was argument, Treasurer’s like Stilp’s, is based on the premise of HB as version 1521 passed significantly was different from the version of bill that was to legislative referred committee during process.

Appellees cogently that a respond challenge constitutional 2 under can only III, Section be sustained if an Article Section PAGE, (“[A]n 1 or 3 violation is established. at 877 A.2d 410 amended bill need not be referred to committee and consid ered on if separate those days germane amendments are to, bill.”) wholly subject and do not change, general of the (quoting Pennsylvania Commonwealth, AFL-CIO v. A.2d 691 1023, (Pa.Cmwlth.1997), 108, aff'd, 1037 563 Pa. 757 917 A.2d (2000)). that, Appellees argue because Assembly the General 44, did not violate Section 1 or 3 in enacting Act there can be Moreover, no violation under Section 2. appellees maintain that it is clear from the record that HB 1521 to was referred during committee the legislative process and that it was printed legislators and distributed to all prior to the vote.

It is settled that an amended bill does not need to committee, III, 2, referred required by to if Article Section amendments the bill added during legislative pro cess are germane to and not change general subject do Weaver, 364, (Pa. bill. DeWeese v. 824 A.2d 368 n. 7 Cmwlth.2003); AFL-CIO, 691 Pennsylvania A.2d at 1037. Stilp and Treasurer claim Casey 2 Section was violated subject because the purpose version of HB original 1521 were significantly during altered process. above, however, As noted have that they we concluded failed III, a demonstrate violation of Article 1 In Section or 3. HB 1521 addition, record reveals review May on State Committee referred to House Government 6, on 3, 2005, Committee June Appropriations to the House 13, on 2005, Committee June to the Senate State Government 2005, 1, July on Committee Appropriations to the Senate 6, 2005, joint and to a July on the House Rules Committee Accordingly, because on July committee conference failed to establish violation Casey Treasurer have Stilp and III, clearly record and because the Article Section committee the bill was referred to demonstrates that Trea- members, Stilp and for the General printed III, an Article Section failed to establish Casey surer have violation. III, challenge

4. Article Section III, to Article pertains final Stilp’s procedural challenge provision, This Constitution. Bills,” provides full: entitled “Consideration in days considered on three different Every bill shall be be printed All made thereto shall each House. amendments is taken on use of the before the final vote for the members taken, upon final vote is written the bill and before the either House to the officer of request presiding addressed House, any by least of the members elected to that at 25% No shall be at that House. bill length bill shall read is taken law, passage on its final the vote become unless voting of the for and by yeas nays, persons names journal, of the majority it are entered on the and a against thereon as to each House is recorded members elected in its voting favor. Const, Ill, § 4. art.

Pa. the amended and final version

Stilp maintains that Houses, created, both by HB nor considered 1521 was signed 2005, the same that it was July passed until date Therefore, because the according Stilp, to into 44. law amendments, by of HB 1521 had been altered substance on HB considered required final 1521 was to be version in each House. days three different

608 PAGE, Casey

Treasurer concedes that under a violation of 4 cannot III, Section be established unless either Article PAGE, 1 or 3 has Section also been violated. at 877 A.2d 410. violated, Consistent with his assertion that 1 Section however, the Treasurer maintains that final version of HB version, changed purpose original 1521 of the and there- original fore consideration of the bill became nullity. Thus, the argues, Treasurer the General Assembly was re- to quired consider the final on three days version different each House accordance with Section 4. The Treasurer argues that because each house the General considered and on voted the final version HB on only 1521 4 day, one Section was violated.

Appellees’ response is similar to their answer concerning III, the Article Section 2 challenge. appellees Specifically, III, contend that order establish an Article Section 4 violation, III, an Article Section or 3 violation must first be Id. demonstrated the challenger. argue Appellees because Stilp Casey Treasurer failed to have establish a violation, 1 or 3 their challenge Section under Section must Moreover, also fail. appellees maintain that the clearly record demonstrates HB on separate was considered three days in each during House the legislative process. III, an

Similar to Article 2 challenge, Section it is settled that a bill does not have on separate considered three days, III, required as otherwise Article if Section amendments to the bill added during legislative process germane are change and do not the general subject of the Id.; DeWeese, 7; bill. Pennsylvania AFL- 824 A.2d at 368 n. CIO, at analysis claim, therefore, A.2d Our is identical to our analysis Thus, claim. because and Stilp Casey Treasurer claim that 2 Section was violated because HB 1521 was significantly during altered legislative process, they must first establish a violation of III, 3, Article Section 1 or they failed to do. In have .addition, a review of the record reveals that HB 1521 was 11, considered on three separate days the House (May June 6, 8, 2005), and separate June and three days the Senate 2005). (June 30, 6, Stilp because 1, Accordingly, July and July failed establish a violation Casey have to Treasurer 3, read on III, and because bill was or Article Section have occasions, Casey Treasurer Stilp and three different III, 4 violation. an Article to establish failed Expense Legislative Unvouchered E. Party and Consumer

Allowances concerns, not the entire- challenge last constitutional Stilp’s 44, expense allow- legislative unvouchered but ty 1107). § 44, (amending § 2 Pa.C.S. See Act provision. ance reads as follows: This expenses

§ 1107. Additional

(a) Senate.—

(1) of this on the effective subsection Beginning date 2008, a member the Senate shall ending November to lor clerical any addition allocation monthly, receive an ex- expenses, and other actual unvouchered assistance amount of of the difference allocation pense 1/12 between:

(i) in: for a member specified the amount 1102(a) (A) the General (relating members of section as Assembly) (relating living) cost plus section appropriate;

(B) 1103(a) officers and (relating section leaders) plus appropriate; section 1104

(ii) as of the for that member amount calculated to the act of pursuant of this subparagraph effective date (P.L. 160, 39), as the Public No. known September Law. Compensation Official

(2) expire This subsection shall November (b) Representatives.— House of subsection,

(1) on the effective date Beginning receive each Representatives may House of member of the month, for clerical assistance any in addition to allocation alloca- expenses, expense other an unvouchered actual in the amount difference between: tion 1/12 (i) the amount specified for a member in: (A) 1102(b); section

(B) 1103(b) section as appropriate; and (ii) the amount calculated for that member as of the effective date of this subparagraph pursuant to the Public Official Compensation Law.

(2) The Rules Committee of the House of Representatives shall determine the procedure by which a member of the House of Representatives may receive an allocation under this subsection.

(3) This subsection expire shall November 2006. 44, § 1107) (footnote (amending omitted). § Pa.C.S. Specifically, Stilp contends that expense unvouchered allowances provided in Act 44 II, violate Article Section 8 of the Pennsylvania Constitution. provision, This entitled “Com- pensation,” reads as follows:

The members of the General shall receive such salary and mileage for regular special sessions as shall law, be fixed by and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for he may elected, have been receive any increase of salary, or mileage, any under passed law during such term. Const, II, §

Pa. art. Stilp maintains that Act'44’s expense unvouchered allow- ances are an unconstitutional attempt II, circumvent Article Section 8’s express proscription against a mid-term increase in legislative salary by allowing incumbent legislators to secure pay raises immediately without waiting for the next election. Stilp highlights two mechanical aspects that, the allowances view, in his unquestionably prove that the allowances are a de First, salary increase. he notes that the unvouchered facto expenses authorized in Act 44 equaled the exact dollar-for- dollar amount of the increase in legislative salaries provided under the formula adopted Act 44 and which were to take effect after the next election for each individual legislator. Indeed, the amount of the unvouchered expense allowance was terms, only but with reference to in dollar expressed Second, increase. salary of the future percentage equivalent at different expired expenses that the unvouchered Stilp notes Thus, expenses times, upon cycle. the election depending (the 44) date of Act effective July 7, from were available 2005 House, members of the all 2006 for 30, until November general in the 2006 up for election seats would be whose Senators, however, made were expenses election. For 30, 2008, November November until 30, available 2006 Concisely, term of for each on the office Senator. depending permitted § amending 2 of Act Pa.C.S. 1107, Section 44, 46 receive, expenses, immediately as unvouchered legislators to until their salary their increase precise amount of future legislator’s took each salary following increases effect actual Furthermore, Stilp argues that the unvouch next election. not intended as expense ered allowances were regard, he by legislators; this expenses for actual incurred asserts, already provided expenses in vouchered $7,500 actually adequate than to cover year each is more legislators expenses.32,33 incurred Stilp argues find the un- Alternatively, if this Court does not that

32. unconstitutional, portion provi- expense vouchered legislative expenses for sion which for additional unvouchered allows independently leadership be deemed un- and committee service must II, argument premised on Article 8. This is constitutional under provides higher leadership part of 44 which salaries that Act top on of the formula which increased salaries committee service 44, legislators. (amending § 2 46 provided to rank-and-file See that, 1103). Stilp § officers and 499, 697, (2002) J., Pa. 798 (Castille, A.2d 715 concurring) (“Dicta is not converted into binding precedent constitutional repetition.”). through

Stilp alternatively that if Party, Consumer argues even Kennedy, and Stilp are to precedent, deemed be binding they must be overruled they because are incorrect to the extent they that hold mid-term provisions legislative for unvouchered constitutional. See expenses are Stilp’s Brief at 22 (citing Mayle v. Pa. Dept. Highways, Pa. 388 479 A.2d (1978) (“[T]he 720 doctrine stare not a decisis is vehicle for error, perpetuating but a legal rather concept responds justice and, thus, to the demands permits the orderly growth flourish____”)). processes to .law Lastly, Stilp maintains that this Court must specifically direct the General never legislative to include expense unvouchered provision in pay legislation. future raise Casey

Treasurer again aligns himself Stilp with on this issue. he Specifically, agrees with Stilp that Act 44’s unvouch- II, ered expense provision violates Article of 8 Section Pennsylvania Constitution because it is a mid-term salary Party Consumer increase; that overruled; must and that to expenses prior took unvouchered legislators who 44 must repay payments. of Act repeal Act 72’s does, brief, emphasizes, Stilp Potts In its amicus curiae not for paid allowances are expense unvouchered and that the expenses by legislators, incurred business actual exact amount of equaled in this legislation allowances election to effect next upon increases that were take salary Potts, Therefore, according legislator. each for individual salary are expense the unvouchered allowances Potts additionally a different name. merely under disguised clarify that Party and invites this Court overrule Consumer improper are unconstitutional and an expenses unvouchered II, Pennsylvania of Article of the circumvention Section Constitution. include Attor- response, remaining appellees

In —which Commonwealth, behalf of the Senator General Corbett on ney II, Jubelirer, that the Article Speaker Perzel —maintain rejected must be both Consumer challenge under Section Party Specifically, appellees the doctrine of stare decisis. unvouchered argue provisions that mid-term mileage under expense salary allowances do constitute are outside the Party, in Consumer thus holding our II, of Article Constitution. scope argue satisfy also has the neces- Appellees Stilp failed Party. for this Court to overrule Consumer sary burden additional, Perzel then offer Speaker Senator Jubelirer arguments. of these support general substantive reasons acknowledges that there are some initially Jubelirer Senator upheld in between the unvouchered Con- expenses differences notably in Act most Paiiy provided sumer and those in upheld Consumer expense the unvouchered allowances salary an the future Party equal were amount But, the that the are increase. Senator maintains differences and, thus, decisis requires immaterial the doctrine stare expense provision this Court to Act 44’s unvouchered uphold asserts that the Party. reaffirm Consumer Senator enact- Assembly upon precedent General relies Court’s legislation, Party of Consumer ing overruling “would cast uncertainty and confusion regarding a fundamen- tally important legislative function.” Senator Jubelirer’s Brief at 31.

For his part, Speaker Perzel maintains that Act 44’s un- vouchered expense provision complies with Party, Consumer and that the General good acted faith reliance on this precedent in enacting the provision. The Speaker ac- knowledges that this Court appeared has to be “uneasy” with Consumer Party, pointing to: the recent decision in PAGE which overruled the legal standard announced in Consumer PaHy evaluating III, Article Section 1 original purpose challenges; and the phrasing of the portion of our Order of December 2005 concerning the unvouchered expense issue. perceived Given this “uneasiness” with Consumer Party, maintains, Speaker “the Legislature, concern, as a practical requires guidance and clarification from the Court for any future legislation ... a dependable [and] on ruling the re- quirements II, Article and most concern- directly ing continued constitutionality those unvouchered ex- pense allocations the amount of the pay future raise.” Speaker Perzel’s Brief at 26.

This Court reviews constitutional challenges to a statute under the presumption the General Assembly does not intend to Constitution; violate the accordingly, a statute en- joys a strong presumption of constitutionality. See Pa.C.S. 1922(3); PAGE, § 877 A.2d at Any 393. party challenging of a constitutionality statute bears the heavy prov- burden of ing that the act clearly, palpably, and plainly violates the Constitution, and all doubts are to be resolved in of a favor PAGE, finding of constitutionality. 877 A.2d at 393. In construing constitutional provisions, “the fundamental rule of construction guides [the is that Court] Constitu- tion’s language controls and must interpreted in its popular sense, as understood people when they voted on its adoption.” Ieropoli, 842 A.2d at

All parties involved agree II, that Article Section 8 of the Pennsylvania Constitution plainly and unequivocally prohibits legislators from receiving salary mid-term -increases. The

615 legislative the mid-term unvouchered issue then whether salary Act 44 in fact a allowance authorized expense increase, to the Our repugnant and therefore is Constitution. begins Party. Consumer analysis necessarily with (“the Act 1983 Offi- 39 of Public Party Consumer involved that, Law”), similar comprehensive law Compensation cial three 44, of officials all compensation Act addressed 4 of the Act raised government. Section branches $10,000, to a of members the General salaries next annum, following the $35,000 made effective per total of $7,500 ex- 4 also authorized in vouchered election. Section incurred expenses for “clerical and other penses assistance of his term in connection with the duties legislator’s] during [a 39, 4(a); 507 A.2d at 327 Party, § Act see Consumer office.” 5 Act also an unvouchered provided n. 3. 39 Section $5,000, payable in a total amount of but expense allowance mid-term, in time monthly one-year period allotments over 30, 39, 1, 1983 1984. See Act from December until November addition, 4. In 5(a); Party, § 507 A.2d at 327 n. Consumer Representatives both and the House of Officers of the Senate expenses receive additional amounts unvouchered were to 5(b), (c); § time Act Con- one-year period. for the same at n. 4. Party, sumer 507 A.2d Party appeal-

The in Consumer citizen-taxpayer appellants which, summary order on ed from a Commonwealth Court re- constitutionality of Act 39. After judgment, upheld rejecting procedural challenges raised viewing and various III, chal- appellants’ under Article turned Court expense provision. unvouchered lenge to 39’s only in the Court argued had Commonwealth appellants III, Article Section 27 of violated Constitution, “Changes in Term of Of- entitled Prohibited,” that: “No law Salary provides fice or and which officer, or or increase any public the term of shall extend emoluments, ap- or after his election salary his diminish meritless because challenge We held that this pointment.” II, exclusively in Article specific provision the more Legislature. increases for the covers mid-term Party, Barber, v. Consumer at Snyder (citing 507 A.2d 835-36 (1954) (Article Pa. III, 106 A.2d Section 27 “13”) (formerly numbered “does not to the members of apply Legislature, the since their is dealt with in a Constitution, II, 8.”)). part of the separate namely, Art. sec. The Consumer Party Court then that, on to note in went their brief on appeal, appellants attempted the to raise a new claim the alleging unvouchered expense violated II, Article Section 8. We determined that this distinct issue “not the properly before Court” because it was never complaint in the nor the raised below did seek to appellants Id. complaint amend their the raise claim. at 336. Notwithstanding this the Party Consumer holding, waiver reject II, went on to Court address and the Article Section 8 merits, challenge stating on the- if without the discussion was dictum, intended as an holding, merely alternative or' for provide guidance future cases. The Court noted that II, prohibits Article Section 8 legislative mid-term increases in “salary” or “mileage,” but is silent expense about unvouchered (waived) The allowances. Court understood the challenge before to be that “the expense increased during allowance provided'for the term in Compensation the Act is ‘salary.’” additional in Engaging meaning a plain analysis, argument the Court ignored found this the clear differ- ences the terms “salary” expense “unvouchered allow- ances,” as the former entailed “compensation for services the performed,” while latter covered “an amount furnished to for pay expenses performance incurred those ser- expense vices.” The Court also noted that for allowances legislators provided by had been since statute and that statutory there was also precedent for mid-term augmentation Id. at of such allowances. 336-37.

The Court of expense then examined nature allowances. The Court highlighted system of a disadvantages where an required is employee expenses, to submit vouchers for all including: bookkeeping concomitant burden a vouchered requires system employer, time-lag between employee’s expenditure and reimbursement employer, accu- maintaining employee expended by the time an un- further noted that expense records. Court rate allowance, avoids for a fixed system, providing vouchered bookkeep- expense time and involved “[t]he these burdens: his full is able to devote employee ing eliminated and recognized that an his Id. The Court also duties.” attention be more or less expenditures might unvouehered employee’s allowance, such variations but concluded that fixed than “As fixed long expense not allowance problematic: were actual the lack of mathemat- reasonably expenses, related to system present in such a does not precision ical inherent at Id. problem.” appel

Finally, Court considered Party the Consumer allowance was argument expense lants’ that the unvouehered increase” reality salary and “in “unreasonable” veiled II, reject did Article 8. The Court violated hand, following, specific but did so for the claim out of reasons: expense for that the

Appellants offer no basis the conclusion not for pay not and be used allowance is needed will Assem- of the General legitimate expenses of members outlined, the expense use of allow- bly. previously As we in the Instead long legislature. ances has been a tradition bear the appellants argue legislators those should is that the reasonable. proving expense burden of allowance that novel assertion. disagree We with above, As the constitution- party challenging stated a we a heavy act the General bears ality of an legislation will not be declared uncon- proof, burden of and clearly, plainly it and violates palpably stitutional unless any failed to make appellants utterly Constitution. Here This is a sham. addi- showing expense allowance therefore meritless. argument tional is omitted). (citations and at footnote Id. 337-38 decided, years Party In the since Consumer twenty upon has been called assess Court twice Commonwealth II, challenges legislation involv- pieces Article Section 8

ing compensation, legislation official that also authorized legis- instances, lative unvouchered In both expenses. the lower Party Consumer court looked to ultimately guidance rejected that, is challenge. constitutional It notable cases, both further was not before sought review this Court. Stilp, See 1353; Kennedy, A.2d Pa.Cmwlth. A.2d 733.

In Kennedy, challenged legislation, among other sub- jects, $12,000, increased the of legislators by salaries to a total $47,000 annum, per after effective the next election. The legislation also provided for mid-term unvouchered expense interim, to be paid monthly allowance in the and in an amount (i.e., $1,000 month). equal to the future salary increase per Applying Consumer the en Party, banc held panel that the unvouchered not a expenses were hike” and “salary thus did II, not violate Article Kennedy 8. In holding, so Party Consumer court noted that emphasized had: the dis- that, tinction between “salary” “expenses;” taught long as as the expense allowance is related to reasonably actual expenses, unnecessary; mathematical precision placed the burden of proving unreasonableness upon challenger. The en banc panel summarily rejected then claim follows: case,

In this Petitioners’ complaint plead does that the $1,000.00expense increase is unreasonable that a lesser attacks, Instead, amount be reasonable. would on consti- is, tutional grounds, entirety increase its as one which reality, salary hike. We conclude that the above-quoted Party\ [from Consumer language controlling upon and, thus, presented issue here fatal theory to Petitioners’ II, of a constitutional violation of Article 8. section Kennedy, 546 A.2d at rejected

The Commonwealth also a Court similar constitu- in Stilp, challenge tional public 699 A.2d 1353. The official (Act 1995) legislation in at issue that case 51 of again provided for a mid-term expense unvouchered allowance, to paid monthly, and in an amount to the equal legislative salary increase made following effective the next provided further to Senators who The legislation election.34 from expenses in 1994 continued unvouchered elected were 30,1998 1,1996 equal in amount until an December November Party and Kenne Citing increase. Consumer salary to their in that the increase rejected Stilp’s argument dy, panel increase on salary be considered a allowances should expense the same was calculated under that the increase grounds adjustments cost-of-living for the legislators’ formula used [“COLAs”]: are and COLAs

Merely expense because allowances not automatical- by using the same formula does determined salary. into expense allowances additional ly transform are Moreover, and the allowances expense the COLAs Index for Urban Con- the Consumer Price using calculated view, is not In our Law. sumers. allowance augment Legislators’ expense unreasonable cost of salary proportion actual increases price living measured the consumer index. rejected Stilp’s argument also Finally, panel

Id. at 1357. reasonably allowances were expense that the unvouchered by legislators: incurred expenses related to actual the view reading Party support fair of Consumer does A be unconsti- expense an allowance could that unreasonable plain- that a Party Court indicated tutional. Consumer has an allowance is unreasonable asserting expense tiff expense allow- heavy prove challenged a burden to is, pay and not intended to reality, ance not needed that it is a sham Legislators, legitimate expenses however, has not Stilp, increase. designed salary to hide support in his that could any complaint facts averred expense the Act 51 theory of action on the cause allowance is unreasonable. omitted). (footnote

Id. similar to the at issue Consumer legislation challenged provision in that Kennedy Stilp Party, expenses for unvouchered payments for mid-term provides legislators expense provision, rank-and-file 34. Under the unvouchered per $733 month. received (not salary mileage); expense provision the unvouchered contained in a bill establishing an increase legislative sala- to election; ries take effect after the next and the unvouch- expense expires ered allowance once the legislative salary distinctions, increase takes effect. There are notable however. First, Act expense 44’s unvouchered does not state an absolute dollar amount of expenses to be afforded legisla- Instead, tors. the amount of the allowance determined formula precisely that refers to the future increase legisla- i.e., salary, tive the dollar difference pre-Act between legislative salaries and the new salaries that would take effect Second, the next following legislative relevant election. with leaders, respect legislative to raw dollar corresponding amount of the expense unvouchered allowance was substantial- ly more than was at issue in any of the cases. previous Under adopted by formula salary future of rank-and- file $11,000, members the General would rise over just $70,000 year just $81,000 from under per to per year. over Thus, the mid-term “unvouchered expenses” authorized $11,000 Act are excess of for each rank-and-file legislator. The amount of mid-term unvouchered expenses made avail- chairs, however, able leaders and committee to much more dramatic. For Act 44 example, adopted formula that raised the salaries of the Speaker of House $30,000 Senate pro tempore by President per year, well over and made that very same amount immediately available to legislators guise those in the ex- mid-term unvouchered penses.

This Court asked the brief parties question of whether we should reconsider or overrule Consumer Party and Stilp, Casey, Stilp’s Treasurer affirmatively amici request that we do The doctrine of so. stare decisis maintains that for purposes certainty stability law, in the “a conclusion reached case applied one should be to those follow, same, if are substantially the facts even though parties may be different.” Pittsburgh Burke v. (1953). Corp., Limestone Pa. 100 A.2d While stare decisis serves invaluable and salutary principles, it is not an inexorable command blindly followed when such Mayle, error. 388 A.2d See perpetuating leads adherence (“[T]he not a decisis is vehicle doctrine stare at 720 error, responds legal concept but rather a perpetuating thus, and, orderly- the justice permits the demands of to flourish.”). hand, the other of the to On processes law growth jurispru- the of reliance on settled recognize importance we and thus there is precedent, to overturn when asked dence they rely argument force in the leaders’ much precedent the when this Court’s of law and interpretation on not be crafting and that such reliance should legislation, good for reason. except undercut that, it is not clear although we note

Preliminarily, should in discussing and analysis applied articulated whether Party intend- II, challenge in Consumer Article dicta, holding, an we alternative general guidance, ed as it grounds on distinguish not seek to or narrow it would to The Court fit discuss precedential lacked value. saw issue, any participating from objection constitutional without Justice; of why offered as an explanation the discussion was permitting be served” in amendment purpose would “[n]o argument; to issue thus complaint add waived capable of recur- important obviously an one discussed was rence; Thus, consider it has we shall upon. been relied case square-on. assumed an deference Party appropriate

Consumer respect to mid judgment to General with allowances, in in because expense part term increases part because salutary constitutionality, presumption that unvouchered perceived legitimate the Court role relationship to they where bear a reasonable expenses play Indeed, length at the Court addressed expenses. actual ac advantages requiring in not a dollar-for-dollar putative however, counting did not expenses. analysis, Court’s all mid-term any systems covering purport approve contrary, To Court made clear expenses. unvouchered relationship” expenses that such must bear a “reasonable in this infirmity see no constitutional expenses. actual We Party. adopted Expenses in Consumer general standard are is, course, different from salary. There much to be said for transparency government, particularly when it comes to expenditures, and specific accounting procedures promote that transparency even if system such a requires an expenditure time money But, for accounting purposes. absent consti- tutional infirmity, is not this Court’s role to dictate coordinate, coequal branch of government to ap- how best proach the task of for accounting legitimate Thus, expenses. that, we continue to matter, believe as a general unvouchered se expense allowances are not per unconstitutional. Accord- ingly, we reaffirm the core reasonable relationship standard Consumer Party.35 which was adopted this, however, Having said we have no difficulty finding that the unvouchered expense provided allowance Our Party's reaffirmation recognition of Consumer that mid-term unconstitutional, expenses per unvouchered are not se and the reason- relationship able standard legisla- as the constitutional measure of such tion, is not an application endorsement of the Court’s of the test in that Saylor’s case. Mr. Concurring Dissenting Justice Opinion —which emphasizes the sheer amount of the unvouchered allocation at issue in Party Consumer and the Court’s lack of concern with whether the reported allotments expenses were as income or on federal tax re- ably strong argument outlines the that could be made that the turns — Consumer Party application Court’s of the test it announced was exces- deferential, sively perhaps implausible even under the circumstances. add, We points could to the Saylor, offered Justice the circumstance expenses that the expired unvouchered salary once the in- below, however, creases explain took effect. weAs the circumstances thus, this case are not at all the same Party, as Consumer to discharge duty judice our in the case necessary speculate sub it is not as to approve whether we would expense mid-term unvouchered legislation Party, at issue in again. Consumer if faced with it Perhaps importantly, more noting it is any digression also worth Party into whether rightly Consumer propriety was decided that the of a terms, former decision is difficult to measure in absolute and the effects hindsight law, must be considered. aAs matter of the Consumer

Party rejected only Court challenge argument constitutional it it; having identified presented as been purports reject no case all possible arguments. assessing In persuasiveness prior of a deci- sion, a necessarily later court arguments is confined to the and discus- Thus, sion which are identified in the decision. the excessive deference apparent now Party may in Consumer well reflect the narrowness or insufficiency case, argumentation of the forwarded in the or it could represent the appreciate Court’s failure to arguments address or all forwarded. not bear a constitutionally infirm as does in Act 44 is incurred expenses the actual relationship to reasonable begin we inquiry, To better frame legislators. individual Party did not Consumer the Court by emphasizing what fact, expense of the unvouchered In the amount say. point Party same as the issue in Consumer not the was allowance at legislation in that legislative salary provided increase future (the $10,000, ex- while unvouchered increase was salary amount). importantly, More was half pense allowance held, stated, any implied particular never or this Court expenses was for mid-term unvouchered amount authorized stan- relationship reasonable constitutionally valid under the II, of the Constitu- dard and Article contrary present to the important, and Equally tion. as hold, certainly did Speaker, Court argument allowances expense that mid-term unvouchered imply state II, long with Article Section so Legislature comply for the salary increase are in the same amount as future they Thus, Speaker when the legislation. included in same II, on “the “dependable” ruling for a Article Section 8 asks expense allo- constitutionality those unvouchered continued pay raise,” Speaker cations in the amount of the future added), has misperceived Perzel’s Brief at 26 he (emphasis Party Consumer suggested never said or such inquiry. system constitutionally valid. Party, of Consumer Jubelirer, in his summary

Senator therein, but he the reasonable test stated relationship relationship respect to argues that such a exists with never Perzel, hand, 44. on the other never Speaker Act acknowl- Pa-rty, forth in this standard set Consumer instead edges alone, incorrectly facts focusing suggesting the upon for that mid-term the case the thereby proposition stands II, Article are constitutional under expenses unvouchered are in same as the future long they Section so as the amount in legislative salary legislation. Because provided increase leaders overlook or misconstrue actual Party, no of Consumer relevant rebuttal holding they provide to Stilp’s claim.36 that, as recognizes

This Court challenger presump- constitutional tively legislation, Stilp properly bears the bur- Party, here. Consumer den proof at 507 A.2d 337. How- ever, isit notable that the not legislative parties do his dispute claim that the unvouchered expenses authorized are actual, not to reasonably related and otherwise-unreim- bursed, expenses by legislators incurred discharge Moreover, their if public duties. expense unvouchered plausibly explained allowance could as intended to cover expenses, actual rather than to salary, serve as additional we have no doubt that proposition this would be an matter easy legislative parties And, to demonstrate. as the parties in a uniquely position to such provide proof, the failure to so or argue, to forward such a proffer, notwith- significant standing Also, Stilp’s respect ultimate burden. Stilp’s with burden of proof, presented we are arguments with that were Consumer Party, foiwarded discussed including Stilp’s focus on the staggered fact timing expiration expenses prove unvouchered serve as they fact, additional also salary. Stilp properly relies on the was not available to the challengers in Consumer Party, Kennedy intervening legislation, such as was at issue in Stilp, which tied the amount of mid-term un- provisions for vouchered expenses precisely the amount provided as a future increase legislative compensation, provided expenses unvouchered once expire would the new salaries fixed, indeed, took effect. The practice has become so that the case, has misread Consumer Speaker, Party itself as approving amount of any mid-term al- expense unvouchered lowance so long as the amount is the same the future appears Kennedy Stilp, It that in Party, both unlike in Consumer expenses the unvouchered authorized were in the same amount as the Court, however, legislative salary future increase. This not asked appellate review either case and those intermediate do not decisions event, any Kennedy Stilp bind us. In neither nor held that dollar-for- equivalence per dollar relationship se established reasonable between expense expenses. unvouchered allowance and actual

625 thing, the case said no such though in even salary, increase holding.37 not have such supported the facts could and of a between actual event, any congruence claim any In un- legislators and the expenses incurred unreimbursed defray 44 those provided under Act to vouchered allowances belief, particularly respect and with challenge would expenses to available expense to the unvouchered allowances made the rank-and-file The provided leaders. legislative $11,000 of, of, already top and well in excess $7,500 was on represented and indeed provided expenses, vouchered salaries. 16% their then-authorized approximately leaders expenses legislative provided amount unvouchered (the and the pro tempore, President Speaker and Senate leaders), meanwhile, in excess minority was well majority and (three expenses provided times the unvouchered $30,000 rank-and-file), existing and of their represented over 30% salaries. on argument, appellees’ unrebutted silence light Stilp’s

In test, relationship reasonable the reference Party’s Consumer unvouch- salary compute to the new formula mid-term allowance, be- expense congruence the dollar-for-dollar ered salary the new expense unvouchered tween allowance formula, the expense that the allotment once the expires fact effect, salary takes and the sheer amount of author- new allowance, Stilp his burden of ized we hold has carried legislative allowance proving expense unvouchered 44, §' § in Pa.C.S. in fact provided (amending Act 46 1107), salary legislative. a mid-term increase in represented Arti- clearly, palpably, plainly proscription violated II, According- cle Section 8 of the Constitution. ly, requested by part, will the relief grant Stilp, we § 2 amending declare Section Pa.C.S. unconstitutional. obviously disagree, respectfully, Mr. We that we with should note Saylor’s legislative of the at Justice characterization allotments issue Kennedy taking Party "logical its Stilp as extreme.” Consumer text, explained position As we have leaders respecting Party approved premised upon a misread- what Consumer ing of the case. Nonseverability

F. Provision

- - issue, interpretive The final of arising by finding virtue our the expense above that unvouchered in Act 44 is allowance unconstitutional, legal nonseverability is the effect of the provision included in That the Act. the Act contains a nonsev- erability itself, is in the provision remarkable and of because (“Constitutional general set forth in Section rule con- statutes”) Act, struction the of of Statutory Construction § 1501 et seq., Pa.C.S. establishes a presumption severabili- ty: provisions statute shall every any be severable. If or

provision any any statute the application thereof to invalid, person or circumstance is held the remainder of statute, and the of such application provision to other per- circumstances, sons or shall not thereby, be affected unless provisions the court finds that the so valid statute are essentially with, and inseparably connected and so depend upon, the void that provision application, it cannot be presumed the General would have enacted remaining one; valid provisions without the void or unless the court finds that remaining standing provisions, valid alone, are are in incomplete incapable being executed accordance legislative with the intent. § 1925. has in Pa.C.S. This Court deemed the presumption task,

Section 1925 so fundamental our when confronted with invalid, a finding of a statute is we have invoked Section 1925 even where the failed parties argue See, Mockaitis, at severability. e.g., 834 A.2d In addi- tion to statute applying “every” mandatory and employing terms, Section 1925 is because it not merely notable boiler- Thus, plate. Section 1925 does not all mandate severance in instances, only but in those circumstances a statute can where stand absent provision. alone Section 1925 invalid sets standard, forth a specific, cogent one both emphasizes which the logical and essential of the interrelationship void and valid the essential role of Judi- recognizes and also provisions, analysis. in undertaking required ciary command, legislative princi- Though embodied now severability severability, and the standard which ple measured, For example, common has its roots law. (1890), Court 136 Pa. 20 A. 583 Meyerle, Rothermel v. following standard: stated provisions far its are may only

A be void so statute void, provision may to the constitution. One repugnant If provisions not affect other statute. and this will is inde- operation, is unconstitutional its part from, is consti- of, and that which pendent readily separable itself, tutional, as the may stand so latter rule, it proper expression reasonable and but, such; is part be as if the void may sustained whole, dependent are so provisions to the or the other vital it, it, may presumed so connected that it be with upon other, the legislature passed the would not have one without statute is whole void. 1925 Id. at 587-88. The standard contained now merely codified this settled decisional law. striking only

The of unconstitu- practice severing enactment, in instances larger legislative tional a valid, has self-sustaining legislation where otherwise jurisprudential gen- its restraint. See origins principles 203, N.C. L. Rev. erally Copeland Nagle, Severability, John 72 (1993); Inseverability Kameny, 212-18 accord Fred Are (2005). Constitutional?, 997, 68 Alb. L. Rev. 1002 Clauses as has been described fol- The of the doctrine development lows: Champlin ^[38] test has its origins in Chief Justice Supreme for the Judicial Court opinion

Lemuel 1854 Shaw’s Commission, 210, Champlin Refining Corporation v. 286 U.S. Co. 559, 564-65, 234, (1932), by Phillips 52 76 L.Ed. 1062 overruled S.Ct. 190, 221, (1950). Okla., 204 v. 340 71 S.Ct. 95 L.Ed. Petroleum Co. U.S. upon severability factors: Champlin, depends of a two Under statute intent, can function without and whether statute See, offending employed This has the same standard. provision. Court Co., 316, 664, 196 667 e.g., Saulsbury 413 Pa. A.2d v. Bethlehem Steel 628

of Massachusetts v. & Mayor Warren Aldermen of Charlestown, (1854),] Gray Mass. first [68 case that holding statutory an provision. unconstitutional ren- Warren, dered an entire statute invalid. Prior severability statutory provisions usually assumed. In the questioning earliest cases the constitutionality of a statute, federal the United States Supreme gave Court no that unconstitutionality of one provision indication —or its an application render entire statute In invalid. —would Madison, v. Marbury U.S. Cranch 2 L.Ed. [5 (1803),] for example, unconstitutionality section Judiciary not 1789 did render the entire Act wrote, invalid. As Chief any part Justice Marshall later “If unconstitutional, of the act be the provisions of part may disregarded while full effect given will be such are States.... repugnant ” ^[39] As result of this lack of guidance, some to the constitution of the United courts far they invalidated statutes “so as” were unconstitu- tional, courts suggested severability while few de- pended on ability remaining to function provisions absent the unconstitutional provision.

Then came ... Warren. Chief agreed Justice Shaw with those courts had found that a could statute be constitu- tional part in part. unconstitutional But he quickly added: limitation, must be parts,

[T]his taken with this that the unconstitutional, so held respectively constitutional and must wholly independent be of each if they other. But are so mutually dependent connected on with each other, conditions, compensations as considerations or other, each as to warrant a belief that the legislature (1964). 26, 73, Rutenberg v. City Philadelphia, 329 Pa. A. 79 196 Cf. of (1938) ("The severability may simple test of be in stated terms as out, portion follows:- After the invalid act has been stricken self-sustaining whether capable separate that which remains is and is regard portion enforcement without to that of the statute which has been If be cast aside. this true the statute be should sustained to the remains."). extent of that which 492, 526, 492, Dudley, 39. Bank Hamilton v. Lessee 27 2 U.S. Pet. 526, (1829). 7 496 L.Ed.

629 whole, that, if all could not be as intended them a effect, pass legislature carried into would are and some unconstitution- parts residue independently, dependent, condition- al, all are thus provisions connected, fall them. al or must with Warren, (citing 212-13 L. Rev. at Severability, 72 Nagle, N.C. omitted). 99) (footnotes 84, Gray 2 at 68 Mass. roots a its in the severance has principle

No doubt because (and reflects the the standard itself doctrine jurisprudential law), not treated common the courts have of the experience severable, or a is nonsev- declarations that statute legislative commands,” erable, rather have as but viewed “inexorable construction. a rule of providing such statements as severability contain a Nor is the fact that the ordinances in Justice Brandeis controlling. clause As stated Mr. Kansas, 286, 323, 44 S.Ct. 264 U.S. Dorchy v. The State of (1924), a rule of construc L.Ed. the clause “provides 68 686 * * * But it an [legislative] intent. determining tion As ruled merely; aid not an inexorable command.” Schwartz, 619, 391 Pa. R.R. Pennsylvania Co. Court v. (1958), be severability A.2d a clause must 139 525 while as accepted judicially due it is not given weight, legislative scheme is unity general conclusive if the of the of its destroyed by provisions. a severance completely Co., 664, 316, A.2d 413 Pa. 196 Saulsbury v. Bethlehem Steel omitted). (1964) (additional Supreme citations U.S. Court v. Dist. See also Fed’n Teachers School (1984) 751, (holding Pa. Philadelphia, 506 A.2d Act is unconstitu- inapplicable where nonseverability provision were members only applied persons as who tional enactment, time of the constitutional retirement at but system retirement members of the as to those who became applied Act); accord the effective date system subsequent (2005) Cormier, v. 622 S.E.2d Louk W.Va. (“[W]e non-severability provision that a contained now hold merely presumption enactment is construed to be intended the entire enactment Legislature found uncon- legislation if the statutes invalid one of stitutional. a When non-severability appended a legislative enactment and this Court invalidates a statute enactment, apply contained princi we will severability ples construction statutory to determine whether the non effect.”); severability provision will be full given force and Assoc., 180, 184-85 Stiens v. Fire and Police Pension 684 P.2d (Colo.1984) clause, like (nonseverability severability clause “is to legislative “gives only conclusive as intent” but rise to a that, if the presumption parts unconstitutional of an act were eliminated, legislature have been with would not satisfied remained”; what ultimately that “the holding presumption overcome”); been unseverability Legislative has Research Brown, Commission v. 664 S.W.2d 919-20 (Ky.1984) (declining to nonseverability enforce clause because to do so would violate in that it separation powers, would “unconsti tutionally the governor’s with mandat limit[ ] interfere[ ] (1st duties”); ed v. Corp., Biszko RIHT Fin. 758 F.2d Cir.1985) (“Although ... a non-severability clause cannot ulti court, mately bind a a presumption establishes of non severability.”).

The of courts willingness legislative provi- to look behind sions concerning severability appropriate cases apparently derives, at part, least in from a historical uneasiness with notion that legislatures could dictate the what conclusion of long had been judicial inquiry: The severability first clauses late in the nine- appeared teenth much century, they became more common around 1910. These clauses were reaction to courts those that were aggressively holding statutes The nonseverable. earliest legislative statements that statutory provisions should be as being construed severable were taken at face value the courts. soon express But courts soured on concerning severability. statements courts State accept commentators refused to proposition legislatures to the authority appro- had dictate courts the priate decision regarding severability. (footnotes

Nagle, Severability, 72 L. at 222 N.C. omit- Rev. ted). severability adopted standard 1925’s Nagle issue describes pose does not historical presumption Instead, Section boilerplate it is directive. because not a sever- governed the historical standard which adopts Judiciary the mandates ability inquiries, statutorily and then severability. the ultimate determination of to make legislative that unconstitutional We have no doubt from remain provision severable expense unvouchered of Act under repealed) provisions now ing, (although valid In Act forth in Section 1925. the substantive standard set compen new Assembly comprehensive a adopted the General a government, the three branches of system governing sation paid the compensation formulas system employed tying which fed corresponding to provided officials that Pennsylvania officials, fashion. Insofar as stepped-down in eral albeit legislative for the adopted compensation system Act the new effect, violating branch, into system go could without Constitution, II, of with Article legisla next term of office for each the commencement of the system of this perceived A and new benefit major tive seat. that, to salary in the by tying consisted fact compensation of structure, compensation raising the issue of official the federal system compensation, This of de-politicized. new would however, inseparably connected “essentially not much legislative expense provision, unvouchered with” upon” See Pa.C.S. “depend provision. less did (but are remaining repealed) provisions § 1925. The valid the Gen easily being of executed in accordance with capable Assembly’s providing manifest intention of new eral in three structure for officials all permanent contrast, In government. legislative unvouch branches new, to nothing ered had do with expense provision Instead, system. comprehensive compensation only limitation sought particular to avoid a constitutional or branch, salary increase its own which cannot legislative in such a law same term during mileage the motivation behind passed. may Whatever have been provi it is clear that the expense provision, the unvouchered workings comprehensive integral sion was system governmental compensation adopted otherwise Act

But, course, is not simple issue so because the General included Act 44 a boilerplate nonsevera- bility provision, which reads as follows: provisions are any this act nonseverable. If provi- or any

sion this act its or application person circum- invalid, provisions stance is held remaining applica- tions this act are void. 44, § 6. This nonseverability provision is the gener- unlike

al provision ensconced Section 1925 that it sets forth no instead, standard for measuring nonseverability, but simply purports to dictate to the courts they how must decide sever- ability. If nonseverability this is not controlling, clause the noted, expense provision, unvouchered as can be from severed the of If remaining provisions valid Act 44. the nonseverabili- however, clause ty controlling, and validly operates to dictate to Judiciary the the effect of a finding of unconstitu- tionality any as to in Act provision individual then Act 44 necessity of be would invalidated in entirety. its In the latter instance, this proceed Court would have to to the Judges’ claim invalidation of the of entirety Act and the judicial attendant reduction of compensation that action would entail, V, 16(a) would violate Article Section of Pennsylva- the nia Constitution. -

- maintaining While his primary argument that Act 44 vio- the procedural lates of provisions Article III of Pennsylva- the Constitution, therefore, moot, nia the severability issue alternative, the Stilp argues, in nonseverability the provi- sion must be deemed to have no valid effect. legal Stilp submits that the General Assembly obviously included the clause nonseverability sole purpose coercing courts not to Act 44’s strike unconstitutional legislative un- expense provision: vouchered “The General shrewd- ly calculated that the courts would not jeopardize want to their raise, own but instead look the other way....” would Stilp’s Assembly’s attempt argues that the General Stilp Brief at 26. of the constitu- judicial control consideration to influence and violates provisions its individual tionality Act Therefore, Stilp, according doctrine. separation powers expense provision to find the unvouchered if this Court were valid, rest the Act but the unconstitutional be should severed. 16(a) V, under Article Section

Turning question Constitution, if this argues that Court were Stilp (1) of: an its because entirety strike down Act —either (2) violation; striking unvouchered III down Article nonseverability to the giving and then effect expense provision reducing compensation on judicial prohibition provision—the contends, so, because This is Stilp not be would violated. Act 44 as entirety unconstitutional. would striking initio; and, result, ab the increase render Act void already by Judiciary received would addition, that Article nullity. Stilp argues In legal deemed a 16(a) struck Act V, not be if this Court would violated be a result reduction salaries would because the Court, the General of an and not law passed act Assembly. brief, validity address the Casey

In his Treasurer does not Consistently argu- nonseverability with provision. issues, III concerning he Article ments forwards that, 44’s because the manner Treasurer maintains ab initio III, the it is violated Article void passage a must be deemed judicial in it afforded compensation increase lawfully no increase in nullity. Because no argues, to the Treasurer there is Judiciary, the provided V, 16(a).40 of Article Section violation on be- remaining appellees Attorney The General Corbett — Jubelirer, Commonwealth, Speaker

half the Senator nonseverability con- provision that Act 44’s Perzel —counter finding of the a interpretation trols this Court’s effect Act 44 unconstitutional. view any Appellees in is provision arguments by Stilp and Potts brief echoes the forwarded The amicus Casey. Treasurer being implementing this Court’s role as limited to the legisla- tive Appellees nonseverability directive. assert clause merely Assembly’s reflects General intention that all be provisions of Act should as if are they viewed struck, interdependent, provision such that if any were Act in purpose overall for a providing comprehensive all salary government structure for three branches of compromised. Appellees nonseverability further contend that provisions are a not means which the branch legislative to thus, influence and attempts usurp judicial power, such do provisions separation powers. not violate the Each however, appellee, offers in slightly differing support reasons general of these arguments. that,

Attorney initially General Corbett asserts although nonseverability General motives for Assembly’s including the provision Act 44 be may “self-serving,” judicial indeed deference to does not violate the Pennsylvania Thus, view, Attorney Constitution. finding General’s a any provision of Act 44 requires is unconstitutional remaining provisions Court hold that the of the Act are automatically This holding void. result in the compensa- would tion allotted to all of government three branches returning under compensation system levels authorized in effect before of Act 44. passage Attorney The General submits that 16(a) V, this result would not violate Article because Judiciary would be treated the same as other branches of government.

Senator Jubelirer submits that the nonseverability clause constitutional and enforceable reflects the As- General sembly’s policy determination intention and manifest that Act be should considered a piece legislation unified that must enforced or not at whole all. Senator contends that the inclusion of such a clause represents binding and, insists, policy decision he it is a exercise proper legislative discretion that infringe powers does not upon en- Judiciary trusted judicial function itself: “The inclusion nonseverability legislation clause does not with, restrain, interfere coerce or diminish power

635 must make.” Senator the court the decisions or dictate view, Thus, in such a at the Senator’s Brief 39. Jubelirer’s separation powers. not violate the does provision given has effect also that this Court argues The Senator of this in In support clauses cases. nonseverability prior Justice to former Chief cites point, primarily Senator (“OISA”) in of Affirmance Gmer Support in Zappala’s Opinion Commission, Pa. A.2d 812 569 807 ek v. State Ethics (2002). OISA, two represented view Gmerek Justices, of the multiple Lobbying have found provisions would 1303-1311, Act, §§ unconstitutional 65 Pa.C.S. Disclosure Y, 10 of Constitu Pennsylvania of Article violative tion, nonseverability the Act’s given have effect to would thus struck the entire act as invalid.41 See Gmerek, C.J., OISA, joined by A.2d 818-19 (Zappala, 807 at J.). The further notes that his research Senator Gappy, nonseverability Pennsylvania two cases only uncovered where on both grounds, constitutional challenged clauses were Brookins v. upheld provision. instances the courts See Cir.1983) O’Bannon, (3d. clause (nonseverability F.2d 648 699 Welfare Code legislation amending Public rights expression, held not to First Amendment violate Rights association of Or petition, Philadelphia Welfare members); Kennedy, or its ganization Pa.Cmwlth. compensation act (nonseverability A.2d 733 clause upheld). that, if

Senator Jubelirer further maintains this Court were that the expense provision find unvouchered unconstitutional, render Act nonseverability clause would ab the Senator Echoing parties, void initio. other instance, that, argues in such an the increase Act 44 formulas Judiciary operation afforded the void, Act 72 did repeal represented by must be deemed provid- nonseverability provision Lobbying in the The that, Disclosure any any provision chapter person application ed "If or its improper regulation or circumstance held invalid on basis law, remaining provisions applications practice of this 1311(b). chapter § are void.” 65 Pa.C.S. judicial thus, not diminish compensation, and there has been V, 16(a). no violátion Article Section Speaker Perzel argues nonseverability also that Act 44’s provision Speaker constitutional and enforceable. The Assembly notes that General has provi- inserted similar statutes, in sions scores of and has partial included nonsevera- bility clauses in other Speaker several statutes.42 The insists nonseverability that the provision Act 44 not included was an attempt Assembly the General to intrude upon province Judiciary, but merely legisla- reflected a clear tive every intention that Act be viewed as and, being mutually therefore, interdependent the Act was toto, intended to be enforced addition, In or not at all. Speaker suggests that the Assembly General a non- inserted severability provision in Act 44 “as a expression clear that the complete public review and overhaul of officials’ compensation in Pennsylvania not to in any intended be done piecemeal fashion, as an but interrelated Speaker whole.” Perzel’s Brief at 33.

In his amicus curiae brief, Judge Herron submits that nonseverability constitutional, are generally clauses con- but that, if tends to a provision Court were strike of Act down unlawful, 44 as nonseverability enforcement of the provision to judicial invalidate compensation provisions would be un- V, 16(a). constitutional under Article In Section arguing unconstitutionality provision, nonseverability Judge Herron contends that Assembly has no more General power repeal to Act 44’s formula which increased indirect, compensation an through contingent method—inclu- sion of a nonseverability provision directly to reduce —than judicial compensation, attempted as it to regard to do Moreover, rejects 72. Herron Judge Stilp’s suggestion that V, 16(a), Article apply would not to a court’s reduction of compensation pursuant the enforcement of a nonsevera- nonseverability purport permit Partial clauses severability of some statute, provisions require of a but invalidation if entire statute specific provisions other example partial are As an struck. of a nonsev- 1902; PAGE, erability provision, Gaming § see the Act. See 4 Pa.C.S. A.2d at n. 3. prohibition the constitutional contending that bility provision, to any not limited diminishing judicial compensation against Therefore, Herron Judge government. branch of particular asserts, nonseverability be unconstitutional clause would judicial compensa for determining the formula applied constitutionally enforced although may tion Act in Act which increased respect provisions to those with executive for future holders argues, Herron Judge is proper, a distinction Such offices. preclude Constitution does because repealing compensation provisions from General of government.43 those branches respecting

- -3 the of the nonseverabil enforceability The of issue intent; provi not the legislative is a ity provision question that no court itself makes clear the desire sion invalidating the Act without single provision a the invalidate Assem and when the General question The whether whole. a may judicial finding provision the of a bly dictate effect on controlling authority act There no this in an is “invalid.” OISA, legislative appellees, both by The cited point. Gmerek event, and, any merely not in would majority opinion a was applied provision inquiring the without nonseverability have (“Given Gmerek, into its 807 A.2d at the legitimacy. See 1311(b) Act [regarding explicit dictates Section invalid.”). entire Act must be declared nonseverability], Likewise, in Fed’n although Pennsylvania this Court Teachers, nonseverability provi to declined enforce supra, sion, provisions not whether or such we did discuss when Moreover, only Pennsylvania binding. should be deemed has discusses a decision Court found which appellate state nonseverability to a clause is Kenne challenge constitutional present inquiry.44 case is to the dy, supra, unhelpful and that brief, and the amicus brief appellants, Both the Brown in their amici 43. Thomas, arguments to those Thomas and Hafer forward similar filed Judge offered Herron. unhelpful as The in is also Third Circuit's decision Brookins Amendment, challenge in and not there sounded the First constitutional Kennedy involved official comprehensive public compensa- tion which to 44 in that it legislation was similar Act increased of legislators, salaries Judiciary, high-ranking officials, executive and contained a nonseverability provision worded to identically nonseverability later found provision 3, 1987, July Act 44. See The Act of P.L. No. 28. The pro se appellants Kennedy, member of Pennsylvania citizens, private claims, House and two raised several includ- ing a multi-pronged challenge to the nonseverability clause. The appellants challenged provision grounds on that it: gave Judiciary an interest in the statute because it linked judicial an increase expense unvouchered allowances; effectively denied the their appellants right legal representation no attorney likely because would repre- sent a act party challenging judicial an a raise in included compensation for fear alienating Judiciary; violated III, spirit of Article 27 of Constitu- tion; and was contrary public policy, presumes severability. claim, however, did not appellants explicitly that the provision separation powers. violated

The Commonwealth en banc panel Kennedy Court first held that the appellants were denied access to the courts they because had in fact received consideration their claims.45 The en panel banc then dismissed the appel public policy lants’ argument unripe, noting nonsevera bility an issue only if another of the act was unconstitutional, found to be precedent and that condition panel satisfied because the en banc the upheld unvouch provision ered had expense challenged. which been Finally, the panel III, en banc found the Article 27 challenge Section moot. The court did not Kennedy appellants’ address the first argument i.e., that the nonseverability clause tied improperly — the in judicial compensation increase legislative to the un expense provision vouchered claim that is most like the —the addition, course, separation powers. the In decisions of the lower Court, Federal courts do not this particularly bind where the question one of is state law. panel 45. The en banc did appellants' not address the claim that provision operated right deny legal representation. their in case sub powers issue before Court separation A.2d at Kennedy, 546 738-39. judice. concerning definition, severability a legislative provision

By judicial only anticipation review. nonseverability exists clause is case, nonseverability ordinary a standard-less In the a once confronted with Legislature, since the superfluous unconstitutional, of a statute is ruling provision a judicial anew, of whether subject irrespective revisit the may always severable. the unconstitutional the court deemed to assess legislative body it to the a leaves practice Such statute, by judicial interpretation, as affected whether Indeed, for the practical may fact account acceptable. this, said rarity provisions. Having of nonseverability relative that, general a may of this we assume purposes appeal, for matter, proper. are provisions constitutionally nonseverability why provisions particular There be reasons may inter-relate, are not essentially ways but statute of the language from a consideration of bare apparent set settled severance standard governed statute as Act. In Statutory of the forth Construction instance, determine Assembly may such an the General any a taint in necessary part to make clear that Kameny, See Are Insevera- generally statute ruins whole. Constitutional?, (argu- 68 Alb. L. Rev. at 1000 bility Clauses are defini- “guesswork determinations ing severability that the tion, legislators fear and it is understandable Or, politi- there guess wrong.”). may purely courts might directive, from interpretive arising such cal reasons for an pro- compromises which animate concerns Severability, Inseverability, Shumsky, cess. See Michael D. and, (2004) Law, Legis. 41 Harv. 267-68 Rule of J. on (“When an clause in legislature] inseverability includes [a in order to it does so constitutionally questionable legislation, interference.”); from key legislative deal insulate a Comment, Friedman, Inseverability E. Clauses Stat- Israel (1997) utes, (“[Ijnseverability Chi. L. Rev. U. legislative compro- key preserving clauses function of serve mise;” consti- and concessions that they “bind[ benefits ] whole.”).

tute the deal into an In interdependent an instance involving compromise, Assembly may such the General deter- mine, application' logical the court’s of essen- standard of tial interconnection forth in might set Section 1925 undo the a compromise; instance, nonseverability provision, in such an may be essential to securing support to enact necessary the legislation in the first Once place! again, this is a concern not necessarily apparent would be a analyzing court the bare of language the statute. hand, naive,

theOn other this Court is not recognize we that a nonseverability provision that, a legislative practice instances, certain may employed against as a sword Executive, Judiciary or the rather than aas shield to ensure preservation a or compromise.46 scheme Where to be at provision appears securing aimed a coercive effect upon the Judiciary, necessarily implicates separation powers. Although authority there is little or commentary (indeed, nonseverability concerning provisions commen- what tary there notes the lack of authority), those authorities to (and so, consider the matter have distinguished rightfully view) this Court’s appropriate nonseverability between uses uses problematic clauses and are more in light separation powers concerns. Kameny, point whose de- parture was Commonwealth' Court’s opinion Kennedy, described the compensation provi- statute and nonseverability at there sion issue as follows: nonseverability provision conjunction A employed, could also be bill, relatively constitutionally provision with a but suspect minor in a hope in the legislation legisla- that the courts will strike down that the body passed truly support, political tive did not. but for reasons of expediency. generally Kameny, Inseverability See Are Clauses Constitu- tional?, ("The questionable 68 Alb. L. other Rev. at use of insevera- ..., bility, poison-pill attempt sabotage sort device involves an legislators might statute. The assume that the statute contains some ..., provision already they might unconstitutional both an insert inseverability unconstitutionality clause a new whose fairly plain.... purpose: Such a clause can serve a dual it can ensure law, legislators invalidation of the at oppose the same time who it, principle, bill in but whose constituents favor can feel comfortable voting gaining political bill advantage without concern that might judicial scrutiny.”). the bill survive political- are government employees for never

Pay increases although this seemed ly but bill popular, unremarkable — in of increase having question propriety one could immediately, so that take effect expense allowances for themselves. voting in effect an increase legislators were extraordinary of the bill was not truly Yet the feature legisla- in which the self-dealing, way hint but rather the of protective garb. in self-dealing tors clothe the sought to following language: provi- “The For the bill contained the this any provision If of this act are nonseverable. sions circumstance is held any act or its to or application person act invalid, or of this provisions applications the remaining implications inescapable: of this clause are are void.” The constitutionality having as question there some to the was allowances; legis- legislators expense increase their own challenge possible; that a constitutional lature foresaw if clause a court struck inseverability and the ensured allowances, the legislators’ expense down the increase in sacrificed as well. judicial increase in salaries would be Constitutional?, 68 Alb. Inseverability Are Clauses Kameny, use a Kameny describes of nonsevera- L. Rev. at 997-98. this function, as the bility “serving] an térrorem judicial altogeth- to legislature guard against review attempts great.” too Id. at by making price er invalidation continues, troubling” practice, “especially he This sort to legislature an attempt because “represent[s] rightly from judiciary exercising power prevent words, to clauses, in belongs to it.... These other amount Friedman, Inseverability See coercive threats.” Id. also Statutes, (although at 919-20 U. Chi. L. Rev. Clauses be nonseverability generally clauses honored should clauses, severability more deference than should shown claus- plain meaning inseverability “courts’ deference to the If effect to an inseverabili- giving es should be unlimited. ty overstepping clause would result bounds followed.”). then the should not be authority, clause Brown, (declining at 920 enforce nonsev- Accord 664 S.W.2d on the execu- placed because restriction erability “[t]he clause nonseverability tive effectively [the clause] unconstitu- tionally limits and the governor’s interferes with mandated duties.”). above,

we As have noted Court has never deemed nonseverability controlling clauses to be in all circumstances. And, in the judice, case sub given separation powers concerns arise from in a inclusion clause statute such as Act which includes provisions Judiciary, we hold that the clause ineffective cannot be our permitted analysis. dictate confi- Although we have dence that no member of the Judiciary position pass the statute in fact upon would allow the effect of the analysis clause to influence the of any constitutional challenge, clause, effective, the fact remains that the if deemed an acts as incentive to in less engage a constitutional exacting noted, As inquiry. Jorgensen the in discussing Court the importance separation the of powers, against “[r]etribution the courts for is an unpopular decisions threat.” 811 ongoing case, at N.E.2d 660. In this potential the “retribution” is built into the statute itself the effect would-be automatic of the least, nonseverability provision. improper, It is to the say for Legislature the aput coequal government branch of in such a this position. Whether effect is sole or primary purpose of the nonseverability provision, and it is entirely whether deliberate, is of importance less than the fact of its existence in such legislation, and the influence a provision obvious such might to exert designed over independent exercise of judicial In this, conclude, function.47 a such case we enforcement of the clause would intrude upon indepen- (later Justice) Maxey 47. As Justice Chief noted in Com. ex rel. Smillie v. McElwee, (1937): Pa. A. District, Appeal court City This said in Scranton School 113 Pa. 176, 190, modes, "Attempts, 6 A. 160 [1886]: in covert to defeat plain provisions, [the its Constitution’s] must be aside with set certainty open.” same as when the are methods The act now before legislative usurpation is a power. placing us In it on the statute Legislature stepped beyond books the the landmarks established the Constitution and what it did thus when "out of bounds” is of no validity. position depends "There no upon principle which clearer every delegated authority contrary than that act of the tenor of its (Alexander "Federalist”.). commission is void.” Hamilton in the function.48 impair judicial and Judiciary of the dence instead we the clause but will will not enforce Accordingly, we severability.49 judgment concerning independent our effectuate Therefore, severability analysis with our consistently above, expense provision, hold that unvouchered we II, 8 of the violates Article Section plainly palpably Constitution, the otherwise- is severable from 44.50 remainder of Act constitutionally valid AND MANDATE IV. CONCLUSION clearly, palpably, Act 44 repeal A. that Act 72’s We hold 16(a) V, Pennsylva- Article plainly violates judicial compensation as it reduces the nia insofar Constitution 44, compensa- from adopted that resulted the formula July of 2005. We to receive Judiciary began tion which the is severable from provision also find that unconstitutional Act 72 in enjoin Act. Accordingly, we remainder none of support our conclusion in the fact that 48. We find further nonseverability provision enforcing offer arguments in favor of benign legislative explanation any persuasive of how it served some attempt review. purpose other than to influence burden merely Speaker suggests shows example, Perzel For ‘‘complete Assembly sought review and to ensure General compensation” tackle the task in public and not to overhaul of officials’ expense provision obvious- ‘‘piecemeal fashion.” But the unvouchered itself; comprehensive that was ly necessary to the overhaul was not PAGE, here, Moreover, in already that unlike complete. it is notable Assembly global boilerplate a example, included and for the General partial, targeted, specific or one. nonseverability provision, and not a that, expressly Saylor suggests over- unless this Court 49. Mr. Justice Party, apply similar level approach in we should rules the Consumer nonseverability provision as respecting the Consumer of deference the adoption of unvouchered Party applied Act 39’s mid-term Court to noted, But, of the rational expenses. as have reaffirmation we our Party encompass not reaffirmation relationship rule in does Consumer test, application including the of deference shown. of that level of fundamentally, not there an importantly we do believe that is More legislative judgment concerning equivalence between deference accounting legislative expenses, and defer- defraying manner of Judiciary interpreta- attempt to dictate to ence to subject judicial compensation. addressing of a statute tion conclusion, Judges’ contin- light our we need not address In V, Article gent of the clause would violate claim that enforcement 16(a) Constitution. 644 The effect our Act

part. finding repeal 72 is in respect ineffective this limited is that Act provisions 44’s 1801-1809, §§ amending solely Pa.C.S. which relate to the formula to determine paid Judiciary, to the remain in force.

B. Speaker We will not reach Perzel’s argument concerning in Act 44 which establishes a new cost-of-living judicial 44, formula for future compensation. § See Act 1810). § (amending Pa.C.S. make no We determination us, because the issue is not properly before were parties it, asked brief is speculative whether such an ripen. issue will Turning

C. to Act find Stilp’s we Article III' chal- merit, lenges the legislation lack presumption and the constitutionality controls. However,

D. find in Stilp’s we merit claim that Act 44’s provision respecting mid-term expense unvouchered allow- ances to § members the General see Assembly, Act 1107), (amending § Pa.C.S. unconstitutional as violative II, of Article Section 8 of the Pennsylvania Constitution. We agree Stilp also with that the nonseverability provision Act 44 is unenforceable light separation of powers concerns. we hold that this Accordingly, unconstitutional provision from severed the remainder of Act 44. Finally,

E. to remedy. we turn note that We this did Court any not draft play role the enactment of legislation that became Act 44. legislation, passed by That the General duly signed by Governor, compensa- set the receive, tion judges July were to and in of 2005 the Judiciary began receiving compensation, only to have compen- sation unconstitutionally reduced Act 72. of Pennsylvania Constitution mandates that the Judicia- shall

ry compensated provided as To effectuate law. command, that constitutional we order that the Treasurer of (1) the Commonwealth: shall calculate forthwith com- pensation accordance explained with in (2) shall, Opinion; and upon receipt prepared by vouchers Courts, reimburse Pennsylvania Administrative Office for the diminution Judiciary unconstitutional members It Act is so ordered. compensation in effected EAKIN, NEWMAN, BAER and Justice Justices join opinion. BALDWIN this in the participate CAPPY did not

Chief Justice of this matter. decision consideration concurring dissenting opinion. a SAYLOR files Justice dissenting. concurring Justice SAYLOR reasoning Legisla- that the join majority’s holding I 44’s repeal Act Act attempt, ture’s via it relates to salaries of as plan unconstitutional officers, those salaries plainly since the enactment reduces office, therefore, violates Article during judicial terms of 16(a) I also Y, the Pennsylvania Section Constitution. alloca- expense” that Act mid-term “unvouchered agree 44’s II, 8 of the Consti- tions violated Article tution, facially represented in that an unconstitutional they salary legislators. My primary point mid-term increase negate majority concerns the decision difference with the provision 44’s application Act non-severance unfolded, resuscitating thereby as have they circumstances component that are a judicial salary increases otherwise legislation. void agree I also much of the question,

On this severance with slate, Indeed, I majority’s reasoning. able on clean writing join approach discerning great possibility its too would tactically employed that Act 44’s non-severance (to an adverse ruling create a disincentive the issuance of and in upon challenge), invoking separation-of- Act any In clause. powers doctrine to invalidate non-severance that, I 44’s regard, although also non-severance agree presumption constitutionality clause is entitled to a an instance, inexorable regarded first need command.

646 hand, other

On the I believe that this Court’s decision in Commonwealth, Party Consumer v. Pa. 510 (1986), 507 A.2d 323 served a in substantial role unconstitutional, events that led to the insertion mid- term, Act expense” “unvouchered allocation into 44. Certain- I ly, that the unvouchered that appreciate allotment was at Consumer issue in Party distinguishable from Act 44’s formula-based, image salary dollar-for-dollar of a next-term increase. See 618-22, at Majority Opinion, 905 A.2d at 966-67. Nevertheless, $5,000 it is my considered perspective (constitut- in Party Consumer unvouchered allocation at issue ing approximately of legislators’ then-prevailing one-fifth sala- rate, allowances) ry payable ordinary expense over and above represented too great non-transparent conveyance a to pass even the loose reasonable relation test that the applied Court assessing in its validity.1 constitutional the majority As re- lates, the decision has subsequently been taken to its logical mid-term, extreme in enactment and defense further unvouchered allotments couched as expenses were dollar-for-dollar match See salary for next-term increases. Commonwealth, v. Stilp (Pa.Cmwlth.1997); 699 A.2d 1353 Commonwealth, v. Kennedy 119 546 A.2d Pa.Cmwlth. 733 (1988).2 Party’s approach

1. The excessive deference in embodied Consumer reflected, example, expressed regarding in an lack concern expenses report- whether the unvouchered allotments couched as were by legislators expenses ed as income or on federal tax returns. See Party, Consumer 510 Pa. at 185-86 n. A.2d at 507 337 n. 17. majority expressly 2. Party, While the does not disavow Consumer there degree high is discord between the of deference accorded to the legislation authorizing expenses” Party, “unvouchered in Consumer 184-87, 336-38, Pa. at scrutiny A.2d at and the stricter that the applies majority presently looking behind the facial terms of the non- potential underlying impetus. severance Majority to its See 635-38, Opinion, at 905 A.2d at 976-78. Indeed, approach Party to the extent that in Consumer is not here, expressly proper overruled it seems to me that course would apply a be to similar measure deference to Act 44’s non-severance previously clause applied expenses.” to "unvouchered With litmus, Party Consumer as the in which the Court referenced a dearth of improper Legislature actual purposes part evidence on the own, obviously problematic refused look behind legislation on its see 186-87, 337-38, Party, appears Consumer at Pa. A.2d at in the Consumer overly approach employed deferential fostered Stilp to have Party, Kennedy, appears decisions upon the imprimatur of the courts’ appearance the unfortunate II, Article circumventing method of expense” “unvouchered to mid- Party’s approach Consumer Simply put, 8. too an left substantial open “unvouchered expenses” term prohibi- of the constitutional for further erosion opportunity aftermath, which, tion, has unfortunately, continued this, case present recently Compounding most are judiciary members situation involves touching personal a matter on their upon adjudicate called See necessity. Majority the rule financial interests under 556-59, this at 905 A.2d at 928-29. land- Against Opinion, sufficiently it not to me that the Court can scape, does seem all of self-interest involve- guard against appearances and/or ment, an will acting negate expression while clause) any part 44’s non-severance maintain (namely, Act Act 44 legislation.3 of the tainted Party that Consumer I believe summary,

In because decided, I the decision. wrongly expressly would overrule Since, moreover, 44’s I cannot the invalidation of Act support have un- they non-severance clause in the circumstances as folded, I as of its inception. would deem the enactment void reason, I also status salary quo For would hold that judicial by Act 44 maintained at officials affected should be levels, Act pre-Act accomplished as was otherwise 72. readily pass

Act 44's also review. In non-severance would regard, improper purposes no there also actual evidence majority applies here—the inference of an intention to reasonable 635-38, Opinion judicial Majority into See at intrude function. however, Again, part at 976-78. such inferences were no A.2d Party Consumer decision. regard, emphasize my position In this I is not that the would its Act 44's Court should act and of own accord invalidate Rather, compensation plan I relates to officers. believe simply express directive of the Court should disturb any Legislature compensation plan that the entire must fall should provision of 44 be invalid. deemed notes “the free General to reduce [is] compensation in response own to the percep- [its] electorate’s

Notes

Pa.C.S. notes because higher legislators, than rank-and-file leaders receive salaries greater expenses provided to since of unvouchered them also amount salary. expenses legislator's are on each future the unvouchered based matters, disposition we not reach this light In of these do distinct our argument. remedy, Stilp all of the General Respecting maintains that members following expenses elected to take the unvouchered who they payments so passage 44 return those if have done of Act must disagree. Any legislator unvouch- already. who elected receive We presump- good on expense acted in faith reliance ered allowances City Deposit constitutionality. Bank & Trust Co. v. tion of Act 44’s See 379, 361, (1939) (“Acts pursuant done Zoppa, 336 9 A.2d 362 Pa. may though subsequently held sustained it be unconstitution- statute al.”). 612 In connection with contention that his the unvouchered unconstitutional, expense provision argues that Stilp Court’s decision in Consumer Party, 510 Pa. 507 A.2d approved the General use of Assembly’s unvouch ered expenses prior compensation legislation, must be Stilp overruled. also argues disapprove we should two Commonwealth Court cases which relied on Party Consumer to uphold provisions unvouchered in subse expense enacted Commonwealth, legislation. See v. quent compensation Stilp Commonwealth, (Pa.Cmwlth.1997); Kennedy v. A.2d (Cmwlth.1988) (en banc). 546 A.2d Pa.Cmwlth. Stilp initially maintains the portion Party Consumer approving unvouchered expenses was dicta because actually the issue was not properly Stilp before the Court. argues dicta has no precedential value, and that Kennedy's Stilp’s repetition Party Consumer dicta did not elevate that dicta into precedent. See v. Perry, Commonwealth

notes

Case Details

Case Name: Stilp v. Commonwealth

Court Name: Supreme Court of Pennsylvania

Date Published: Sep 14, 2006

Citation: 905 A.2d 918

Docket Number: 151 MAP 2005, 48 EAP 2005, 9 MAP 2006

Court Abbreviation: Pa.