Susan A. YOCUM, Petitioner v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA GAMING CONTROL BOARD, Respondent
No. 74 MM 2015
Supreme Court of Pennsylvania.
May 25, 2017
ARGUED: April 5, 2016; RESUBMITTED: April 26, 2017
161 A.3d 228
some extent, substitute the judicial for the legislative department of the government.
United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875). Because
Justices Todd and Donohue join this concurring and dissenting opinion.
Bruce Richard Beemer, Esq., Kenneth Lawson Joel, Esq., Kemal A. Mericli, Esq., Pennsylvania Office of Attorney General, Sharon K. Rogers, Esq., Pennsylvania Office of Attorney General, 16th Floor, Strawberry Square, Harrisburg, PA 1712, for Office of Attorney General, Appellate Litigation Section and Pennsylvania Gaming Control Board, Respondent.
Joshua D. Shapiro, Esq., for Office of Attorney General, Appellate Litigation Section, Respondent.
Richard Douglas Sherman, Esq., Pennsylvania Gaming Control Board, for Pennsylvania Gaming Control Board, Respondent.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DOUGHERTY
We consider the petition for review filed by Susan A. Yocum, Esquire, in this Court‘s original jurisdiction pursuant to the Pennsylvania Race Horse Development and Gaming Act,
Petitioner is an attorney employed by the Board. At all relevant times, the Gaming Act has set forth various requirements and restrictions applicable to Board members and certain other persons employed by and associated with the Board. When petitioner was first hired in 2008, the Gaming Act prohibited Board employees from soliciting, recommending or accepting employment with a licensed gaming facility for a period of two years after termination of employment with the Board.2 The Gaming Act also restricted Board employees from accepting employment with an applicant, licensed entity, affiliate, intermediary subsidiary or holding company of an applicant or licensed entity for one year after termination, and appearing before the Board in any hearing or proceeding for two years after termination.3 In 2010, the Act was amended to, inter alia, specifically identify the executive director, bureau directors and attorneys as types of employees prohibited from appearing before the Board for two years after termination, and also to extend the general one-year prohibition on accepting employment with a licensed
(h) Qualifications and restrictions.--
* * * *
(8) No member, employee or independent contractor of the board may directly or indirectly solicit, request, suggest or recommend to any applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof or to any principal, employee, independent contractor or agent thereof, the appointment or employment of any person in any capacity by the applicant, licensed entity, or an affiliate, intermediary, subsidiary or holding company thereof for a period of two years from the termination of term of office, employment or contract with the board.
* * * *
(13) The following shall apply to an employee of the board whose duties substantially involve licensing, enforcement, development of law, promulgation of regulations or development of policy, relating to gaming under this part or who has other discretionary authority which may affect or influence the outcome of an action, proceeding or decision under this part, including the executive director, bureau directors and attorneys:
(i) The individual may not, for a period of two years following termination of employment, accept employment with or be retained by an applicant or a licensed entity or by an affiliate, intermediary, subsidiary or holding company of an applicant or a licensed entity.
(ii) The individual may not, for a period of two years following termination of employment, appear before the board in a hearing or proceeding or participate in activity on behalf of any applicant, licensee, permittee or licensed entity or on behalf of an affiliate, intermediary, subsidiary or holding company of any applicant, licensee, permittee or licensed entity.
(iii) An applicant or a licensed entity or an affiliate, intermediary, subsidiary or holding company of an applicant
or a licensed entity may not, until the expiration of two years following termination of employment, employ or retain the individual. Violation of this subparagraph shall result in termination of the individual‘s employment and subject the violator to section 1518(c) (relating to prohibited acts; penalties).
(iv) A prospective employee who, upon employment, would be subject to this paragraph must, as a condition of employment, sign an affidavit that the prospective employee will not violate subparagraph (i) or (ii). If the prospective employee fails to sign the affidavit, the board shall rescind any offer of employment and shall not employ the individual.
Petitioner, who now wishes to seek and accept new employment as an attorney representing gaming clients, filed this petition for review requesting: (1) a declaration the restrictions of Section 1208(h) violate Article V, Section 10 of the Pennsylvania
current Gaming Board attorney, [she] desires to seek and accept employment as an attorney representing gaming clients.” Amended Petition for Review at ¶ 6. She states she is currently “faced with two equally unappealing and untenable options to leave the employ of the Gaming Board.” Id. at ¶ 8.
Option one is to test the Gaming Act‘s employment provisions by violating them, actively seeking a legal position with a licensee, affiliate or law firm that represents licensees or affiliates knowing that if Petitioner accepted a position and left the Gaming Board, the licensee or affiliate could be subject to administrative penalties, Petitioner‘s position, by statute, would be terminated and Petitioner could be subject to sanction for breach of fiduciary duty to clients for placing Petitioner‘s interests before her client‘s interests. Thus, Petitioner would be risking harm to her reputation and her ability to continue practicing law in the Commonwealth and the licensees and affiliates would be risking administrative penalty.
The other option for Petitioner is to forgo the practice of law in her area of expertise, or with any law firm that represents any licensees or their affiliates.
Id. at ¶¶ 9, 12 (citations omitted).
The Board filed preliminary objections to the petition for review, pursuant to
violate the separation of powers as circumscribed in
A preliminary objection to the legal sufficiency of a pleading (a demurrer) raises questions of law, and a court must decide whether it is clear from the well-pleaded facts and reasonable inferences
I. Standing and Ripeness
We first consider the Board‘s objections based on standing and ripeness. We note there is “considerable overlap” between the two doctrines, especially where the objecting party‘s claim that the matter is not justiciable is “focused on arguments that the interest asserted by the petitioner is speculative, not concrete, or would require the court to offer an advisory opinion.” Robinson Twp. v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 917 (2013), citing Rendell v. Pa. State Ethics Comm‘n., 603 Pa. 292, 983 A.2d 708, 718 (2009).
Generally, the doctrine of standing is an inquiry into whether the petitioner filing suit has demonstrated aggrievement, by establishing “a substantial, direct and immediate interest in the outcome of the litigation.” ... In this sense, a challenge that a petitioner‘s interest in the outcome of the litigation is hypothetical may be pled either as determinative of standing or restyled as a ripeness concern although the allegations are essentially the same. Standing and ripeness are distinct concepts insofar as ripeness also reflects
the separate concern that relevant facts are not sufficiently developed to permit judicial resolution of the dispute. Id. (internal citations omitted). However, we have further observed that “pure questions of law,” such as those presented by petitioner in this case, “do not suffer generally from development defects and are particularly well-suited for pre-enforcement review.” Id., citing Rendell, 983 A.2d at 718 n.13.
Taking the Board‘s objections in order, we first consider whether petitioner has standing to bring her action challenging the restrictions of
We have described the requirements for standing as follows:
In seeking judicial resolution of a controversy, a party must establish as a threshold matter that he has standing to maintain the action. In Pennsylvania, the requirement of standing is prudential in nature. ... [T]he core concept of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not aggrieved thereby and has no standing to obtain a judicial resolution of his challenge.
Fumo v. City of Phila., 601 Pa. 322, 972 A.2d 487, 496 (2009) (internal citations and quotation marks omitted). “An individual can demonstrate that he has been aggrieved if he can establish that he has a substantial, direct and immediate interest in the outcome of the litigation.” Id., citing In re Hickson, 573 Pa. 127, 821 A.2d 1238, 1243 (2003). Moreover, one has a substantial interest in the outcome of litigation if her interest surpasses that “of all citizens in procuring obedience to the law.” Id., quoting Hickson, 821 A.2d at 1243. One has a direct interest in litigation “if there is a causal connection between the asserted violation and the harm complained of; it is immediate if that causal connection is not remote or speculative.” Id., quoting City of Phila. v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 577 (2003).
As stated, petitioner is still employed by the Board as an attorney, and it is undisputed she is included among the employees restricted by the terms of the statute. We acknowledge the two-year period of restriction does not begin until after petitioner‘s employment with the Board is terminated, but we also note the rule‘s prohibition of petitioner‘s ability to legally seek employment in the gaming field before she actually leaves her job and becomes a former employee.
law firms who associate and represent gaming entities that the employment restrictions in the Gaming Act will inhibit her ability to seek and obtain employment with those potential employers, and the employment restrictions have a chilling effect on potential employers’ willingness to hire a person in petitioner‘s position. Id. at ¶¶ 31-33.
Petitioner relies on Robinson, where this Court considered a physician‘s challenge to statutory restrictions (Act 13) regarding obtaining and sharing information with other physicians about chemicals used in fracking operations. The physician alleged the restrictions improperly impeded his ability to diagnose and treat his patients by forcing him to choose between complying with the mandatory provisions of the statute and adhering to his ethical and legal duties to report findings in medical records and make those records available to patients and other medical professionals. Robinson, 83 A.3d at 923-24. Although the Commonwealth argued he did not have standing until he actually requested information restricted by the statute and that information was not supplied at all, or was supplied with restrictions
choosing between violating a
Section 3222.1(b) confidentiality agreement and violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care. ... Our existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.
Id. at 924. Petitioner argues she similarly “must choose between equally unappealing options and where the third option
is equally undesirable.” Brief for Petitioner at 17, citing Robinson, 83 A.3d at 924.
Petitioner also relies on Shaulis v. Pennsylvania State Ethics Commission, 574 Pa. 680, 833 A.2d 123, 129 (2003). Shaulis, an attorney with the Pennsylvania Department of Revenue, questioned provisions of the State Ethics Act which ostensibly applied to limit her activities as an attorney after her public employment ended.6 The provision stated: “No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body.”
for Review at ¶¶ 31-33 (averring chilling effect of restrictions upon potential employers).
The Board argues petitioner is in a different position than the plaintiffs in either Robinson or Shaulis, and that those decisions do not confer standing upon her here. The Board avers that the choices the physician in Robinson faced are not “even closely analogous” to the choices petitioner
Considering the facts alleged by petitioner, all taken as true, we conclude she is in the position that if she took the actions proscribed by
We next consider the Board‘s preliminary objection alleging the matter is not yet ripe and petitioner‘s challenge is premature. The Board argues “declaratory relief is only appropriate where there is an actual controversy” and the “hypothetical future occurrence” of petitioner‘s departure from Board employment is speculative and not yet a proper subject for this Court‘s consideration. Brief for Respondent at 13-14. The Board asserts it is unknown how long petitioner will stay in her current job, and by the time she leaves that job the statute might be amended, or the subsequent employment petitioner might secure may not even be as an attorney or within the scope of the statute; the Board claims the matter is therefore not ripe for decision. Id. at 14-15. The Board therefore claims petitioner‘s request for relief is premature.
Petitioner argues the question of the constitutionality of the Gaming Act employment restrictions is ripe for the same reasons stated in her argument on standing. We agree the challenge to petitioner‘s claim based on ripeness is “merely a
restyling of the remoteness concern” addressed in our discussion on standing. Robinson, 83 A.3d at 920 (municipalities challenging Act 13 had standing and matter was ripe even before enforcement; they were aggrieved even by “threatened fundamental changes to esthetic and environmental values“). Thus, as with our consideration of the Board‘s preliminary objections based on standing, we consider the following allegations as true for purposes of determining the preliminary objection challenging ripeness: (1) petitioner wishes to leave her Board position and find another job in her specialty, although she is currently still employed by the Board; and (2) the statutory provisions facially restrict her current ability to seek future employment opportunities in her specialty, even though the details of her potential future departure from Board employment are not yet known. See Bilt-Rite Contractors, 866 A.2d at 272. (standard in determining preliminary objections is taking all petitioner‘s allegations as true).
In any event, additional factual development of petitioner‘s claims that might result from awaiting her actual application to or recruitment by a possible future gaming industry employer “is not likely to shed more light upon the constitutional question of law” she has presented. Robinson, 83 A.3d at 925. The substantive question regarding constitutionality of the employment restrictions in the Gaming Act is clearly a question of law and, as we have stated, such questions are “particularly well-suited for pre-enforcement review.” Id. at 917. Accordingly, the question presented by petitioner is ripe for review and the Board‘s preliminary objections as to standing and ripeness are therefore overruled.
II. Constitutionality
In its preliminary objections based on the merits of petitioner‘s constitutional
pleaded facts as true and determine if those facts are sufficient to permit the cause of action to continue. See Bilt-Rite Contractors, 866 A.2d at 272. The issue of the constitutionality of
Petitioner challenges the employment restrictions set forth in
The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions....
See
Enforcement, Pa.R.D.E, pertaining to the supervision of attorneys who practice in the Commonwealth.
At the outset, we acknowledge petitioner‘s burden in challenging the constitutionality of a statute. “There is a presumption that lawfully enacted legislation is constitutional. Should the constitutionality of legislation be challenged, the challenger must meet the burden of rebutting the presumption of constitutionality by a clear, palpable and plain demonstration that the statute violates a constitutional provision.” Commonwealth v. Stern, 549 Pa. 505, 701 A.2d 568, 571 (1997), quoting Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315 (1992). See also Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383, 393 (2005) (PAGE) (there is “strong presumption in the law that legislative enactments do not violate our Constitution“), citing Pennsylvania Sch. Bds., Ass‘n. v. Commonwealth, Ass‘n. of Sch. Adm‘rs., 569 Pa. 436, 805 A.2d 476, 479 (2002). To be successful in her challenge, petitioner must overcome the presumption of constitutionality with a clear, palpable, and plain demonstration that the employment restrictions in the Gaming Act constitute an infringement on this Court‘s
improperly invade the Supreme Court‘s authority set forth in
Petitioner argues the Gaming Act contains the following unconstitutional restrictions: (1) regulating petitioner‘s practice of law for two years as it relates to her representation of Pennsylvania‘s gaming entities and their affiliates before the Gaming Board, as well as before any tribunal in any jurisdiction; (2) regulating petitioner‘s practice of law for two years as it relates to her ability to obtain employment with any law firm that represents gaming entities, both inside and outside the Commonwealth; and (3) inhibiting the ability of gaming entities to employ the legal talent of their choice. Brief for Petitioner at 26-27. Petitioner further avers these restrictions create an unlawful ban and regulate every aspect of her ability to practice law “as it relates to gaming entities or law firms that represent gaming entities.” See id. at 27.
In making this argument, petitioner relies upon Wajert v. State Ethics Comm‘n, 491 Pa. 255, 420 A.2d 439 (1980), and Shaulis, supra. In Wajert, in a challenge brought by a former common pleas court judge, this Court examined a regulation in the Ethics Act, at
As in her argument on standing and ripeness, petitioner also relies on Shaulis for her position on the merits that
the restriction found to be unconstitutional twenty-three years earlier in Wajert—purporting to restrict former government employees from “represent[ing] a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body.” Shaulis, 833 A.2d at 125 n.1, 132. In striking down the provision, the Court explained “the state legislature is not the body vested with the power to enact such a restriction; that authority lies with this Court through the promulgation
The Board argues the Gaming Act’s employment restrictions do not infringe on this Court’s authority because, unlike in Shaulis, the post-employment regulation here restricts the conduct of all employees and is not specifically targeted at attorneys. The Board relies on P.J.S. v. State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999). In P.J.S., this Court examined whether the State Ethics Commission was barred from investigating alleged ethical violations of an attorney under Sections 403(a) and (f) of the Ethics Act, pursuant to this Court’s jurisdiction to regulate the professional and ethical conduct of attorneys. Sections 403(a) and (f) provided, in pertinent part: “No public official or public employee shall engage in conduct that constitutes a conflict of interest,” and “No public official or public employee ... or any business in which the person ... is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated ...”
Our careful review of the relevant cases reveals employment restrictions do not infringe on this Court’s authority to regulate the practice of law when they regulate the conduct of all employees, rather than attorneys only. See Id. (employment restriction not unconstitutional because it applies to all employees, not just attorneys); Maunus v. Commonwealth, State Ethics Comm’n, 518 Pa. 592, 544 A.2d 1324, 1327 (1988) (upholding provision of Ethics Act requiring financial disclosures of employees as constitutional because it applied to all employees, not only attorneys); see also Shaulis, 833 A.2d at 131 (“an employer, in this case the Commonwealth government, can proscribe conduct of its current employees, including attorneys, provided that the proscription is not targeted specifically at attorneys”). The employment restrictions set forth in Sections 1201(h)(8) and (13) of the Gaming Act clearly apply to all Board employees, including but not limited to attorneys, and thus do not present the constitutional problem identified in Shaulis and Wajert.7 Instead, our holdings in P.J.S. and Maunus apply to support our determination
Moreover, in arguing Sections 1201(h)(8) and (13) of the Gaming Act are unconstitutional as an infringement on this Court’s authority to regulate the practice of law, petitioner does not argue the restrictions apply exclusively to attorneys, nor does she dispute the provisions apply to all employees equally. Instead, petitioner attempts to analogize the employment restrictions in the Gaming Act to those held unconstitu-tional in Wajert and Shaulis by arguing the Gaming Act restrictions are unconstitutional as applied to attorneys. Petitioner essentially seeks an exemption from restrictions designed to apply to all employees based on her status as an attorney. We hold the argument fails. P.J.S., 723 A.2d at 178. In both Wajert and Shaulis, this Court specifically found the prohibitions in the Ethics Act were unconstitutional because they specifically targeted attorneys, noting the provision prevented a former government employee from “representing” individuals before their government employer. See Shaulis, 833 A.2d at 132 (Section 1103(g) of the Ethics Act is unconstitutional because it “targets the practice of law”) (citations omitted); see also Wajert, 420 A.2d at 441 (statute unconstitutional as it applied to restrict practice of law by former judges). However, as stated, the employment
In determining whether the Board’s restrictions in this case are valid, Justice Wecht would focus on whether the restriction applies to current or former employees, some of whom happen to be attorneys. The dissent concludes if a restriction applies to former attorney-employees—regardless of whether it is even aimed at the practice of law—that restriction automatically infringes upon this Court’s constitutional authority. The inevitable result of this interpretation is to create an attorney-only immunity from any regulation imposed by any entity or institution other than this Court, on the basis of our constitutional authority; attorneys thus attain a special privilege to escape otherwise applicable laws protecting against conflicts of interest. See Concurring and Dissenting Op. at 557-58, 161 A.3d at 250 (Wecht, J.) (stating any restriction upon attorneys, even if lawyers represent a small percentage of the larger workforce that is restricted, impermissibly infringes on this Court’s supervisory authority and is thus unconstitutional).
In finding the current/former employee distinction should be the critical inquiry in our analysis, the dissent ignores the clear holdings of this Court’s decisions in P.J.S. and Maunus, which specifically and intentionally declined to find regulations unconstitutional when they were aimed at all persons, some of whom happened to be attorneys. See P.J.S., 723 A.2d at 178 (“jurisdiction of this [C]ourt is not infringed when a regulation aimed at conduct is applied to all persons, and some of those persons happen to be attorneys”); Maunus, 544 A.2d at 1327-28 (finding no basis to conclude employees of state agency are exempt from complying with Ethics Act simply because of status as attorneys). A myopic focus on the current/former employee distinction necessarily relies on the Shaulis Court’s inaccurate description of prior case law, and overlooks the actual holdings in both Shaulis and Wajert that the challenged Ethics Act restrictions were impermissible because they specifically targeted attorneys and the practice of law. Shaulis, 833 A.2d at 131; Wajert, 420 A.2d at 442. The fact the Ethics Act restrictions applied only after the attorney left government employment was not dispositive, but merely highlighted the restrictions’ effect of regulating the practice of law at all times in those instances. Conversely, a careful examination of the restrictions analyzed in P.J.S. and Maunus demonstrates they applied to all individuals subject to the Ethics Act, and were not specifically targeted at attorneys or the practice of law; the restrictions thus passed constitutional muster.
Similarly, in Maunus, the attorney-plaintiffs challenged regulations in the Ethics Act requiring all public employees to disclose financial interests, claiming the regulations violated
Moreover, even in Shaulis and Wajert, which facially involved “former” public employees, the restrictions were actually problematic because they were aimed at individuals who might represent a person before the government body by which they were previously employed; the restrictions were implicitly directed only at attorneys and their practice of law. Shaulis, 833 A.2d at 124 n.1, citing
Nevertheless, the dissent views these cases as directing that only current attorney-employees may be constitutionally restricted in their practice of law. See Concurring and Dissenting Opinion at 558, 161 A.3d at 250 (Wecht, J.) (“I believe the current/former distinction is sufficient to dispose of the instant matter”). It is inexplicable that a regulation could pass constitutional muster when applied to current attorney-employees, yet suddenly become unconstitutional at the moment the attorney leaves that employment and moves on to something else. Such an interpretation would signal an abdication of our constitutional authority over “currently” employed attorneys, while providing immunity to those same attorneys from any applicable restrictions once they are “former employees.” The answer to the query before this Court cannot logically depend on an individual’s status as a current or former employee, but rather on whether the restriction actually infringes on this Court’s power to supervise the practice of law. To the extent language in Shaulis suggests the crux of the matter is this red herring current/former employee distinction, we disavow it, and hold instead the decisive inquiry is whether the restriction invades this Court’s authority by attempting to regulate the practice of law, at any time.10
Moreover, as a practical matter, it was not the employers that sought to direct and control the actions of the attorney-plaintiffs in P.J.S. and Maunus but an independent agency—the Ethics Commission. See Maunus, 544 A.2d at 1324 (Ethics Commission, not employer, Pennsylvania Liquor Control Board, enforced sections of Ethics Act against employee attorneys); P.J.S., 723 A.2d at 175 (Ethics Commission, not employer City of Erie, investigated and enforced sections of Ethics Act against employee attorney). Likewise, the Gaming Board’s restrictions on both current and former employees are meant to be executed at least in part by the Ethics Commission. See
Further, a thorough examination of the caselaw applying
Sections 1201(h)(8) and (13) of the Gaming Act include restrictions applicable to both current and former employees of the Gaming Board. Accordingly, the matter sub judice presents an opportunity for this Court to more closely examine the current/former distinction pronounced for the first time by the Shaulis Court.
Accordingly, in examining Sections 1201(h)(8) and (13) of the Gaming Act, the operative constitutional question is whether the employment restrictions infringe on the practice of law in a manner inconsistent with this Court’s constitutional power. Sections 1201(h)(8) and (13) of the Gaming Act provide restrictions aimed at all employees, including but not limited to attorneys, and restrict future professional activities and employment in the gaming industry, which includes but is not limited to the practice of law. More specifically, Section 1201(h)(8) prohibits any “member, employee or independent contractor of the board” from making solicitations, requests, solicitations or recommendations to any gaming board affiliate or licensed entity for two years after employment.
Moreover, unlike the restrictions in Wajert and Shaulis, which were found to improperly regulate the practice of law because they specifically prohibited a government employee from “represent[ing]” an individual before government entities, the Gaming Board restrictions are broader, prohibiting all former employees from, in part, “appear[ing] before the board in a hearing or proceeding or participat[ing] in activity on behalf of any applicant, licensee, permittee...”
We reject the argument our
In his dissent, Justice Wecht submits any conflicts of interest the General Assembly might seek to regulate have already been addressed by this Court via the Rules of Professional Conduct, specifically Rule 1.11, which applies to avert various conflicts of interest that may arise out of the practice of law by former government attorneys. See Concurring and Dissenting Opinion at 559-60, 161 A.3d at 251-52 (Wecht, J.) (noting this Court has exercised its regulatory authority via the Rules of Professional Conduct which contain affirmative obligations to protect against conflicts of interest). However, Rule 1.11 is narrower in its application than the Gaming Act restrictions and clearly will not apply to protect against a conflict of interest created by the former Gaming Board attorney who goes to work in a non-attorney capacity for a gaming entity. This is precisely the kind of situation the challenged statute captures, and which the Rules of Professional Conduct do not.
Even if we were to assume the Disciplinary Board of the Court has the resources to discover and redress every potential conflict of interest that may arise in this context so as to enforce these Rules,11 the language of Rule 1.11, which describes “Special Conflicts of Interest for Former and Current Government Officers and Employees,” clearly anticipates the need for and existence of statutory provisions which also apply to and control the conflicts of interest addressed in the rule. See
Importantly,
In other words, “[w]hat is contemplated by the exclusivity provision contained in
We conclude there is nothing to prevent attorneys from being subject to both the Rules of Professional Conduct promulgated by this Court under our constitutional authority, and consistent statutory provisions, such as the Gaming Act employment restrictions that apply to all employees of the Gaming Board. A holding that attorneys
Accordingly, although we hold petitioner had standing to bring her challenge, and that challenge was ripe for our review, we hold on the merits that Sections 1201(h)(8) and (13) of the Gaming Act do not improperly regulate the practice of law in violation of
Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion in which Justices Todd and Donohue join.
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT
In determining whether the General Assembly has violated the separation of powers by regulating the practice of law in derogation of
whether the challenged legislation applies generally rather than to lawyers alone. Any law that infringes upon this Court’s supervisory authority over the legal profession violates our Constitution, regardless of whether the provision happens to regulate non-attorneys as well. I would not hold that what the General Assembly cannot do solely to attorneys it can nonetheless do to attorneys, provided it does the same thing to some number of non-attorneys as well. Our precedents require no such rule, and the learned Majority’s forbearance may have unintended but deleterious effects upon the judiciary and the legal profession that will reveal themselves over time.2
Our Shaulis ruling additionally reinforced Wajert’s strong suggestion that the reasoning it employed to strike down practice restrictions invoked against a former judge applied equally to invalidate post-government practice restrictions imposed upon attorneys. See Shaulis, 833 A.2d at 131 (“[T]he issue in Wajert, like the issue in the instant matter, related to the conduct of an attorney who was no longer a public employee. Shaulis and the judge in Wajert have simply asserted their right, absent a prohibition from this Court, to practice their profession.”). It would be difficult to maintain that any real doubt remains as to whether Wajert applies to former public employees who worked as attorneys with the same force that it applies to former judges. To the extent that the issue does remain open, I perceive no material distinction between lawyers and judges that would justify denying former government attorneys the benefit of Wajert. I would hold accordingly.
Although Shaulis determined that Wajert alone was sufficient to compel our ruling in that case, effectively enshrining what we now identify as the current/former employment distinction, we then proceeded to opine that the provision in question also was unconstitutional under a separate test that inquired whether the provision “targeted” those who practice law. See Shaulis, 833 A.2d at 132. It is the latter test alone upon which today’s Majority relies in finding the statutory provisions at issue here constitutional. Because those provisions apply putatively to a broader class of Gaming Board employees, a class that the Majority evidently assumes consists substantially of non-lawyers, they are deemed not to “target” the practice of law. Consequently, the Majority concludes, they do not offend our Constitution.
By applying this “general applicability” criterion, which strikes me as both dubious in origin and vague in scope and contour, the Majority effectively privileges inferred legislative intent over statutory effect. In future cases, this will require us to divine whether the General Assembly intended to usurp our constitutional authority over the practice of law or merely did so incidentally in service of some other purpose. In the first scenario, the restriction would be invalidated as unconstitutional, but in the second, we seemingly would be bound to find no constitutional violation. In practice, this general applicability criterion affords the General Assembly latitude to take upon itself de facto authority to regulate the practice of law provided it does not appear to intend to do so in a targeted
The Majority’s approach grants the General Assembly too much airspace, allowing it to restrict attorneys in ways that we have previously precluded, so long as its legislation is drafted in language that sweeps up a goodly number of non-attorneys as well.3 I would not dwell on whether what amounts to a clear intrusion upon some number of attorneys’ ability to practice their profession in the fashion they choose (to the extent that it is not in violation of this Court’s rules) is an intentional affront to our authority. When we are confronted with a violation of separation of powers principles, legislative intent should be immaterial.
Whether ten percent or 100 percent of the employees restricted by a statute are attorneys, the undeniable fact in either scenario is that some attorneys’ ability to practice law after they depart government employment has been restrict-ed. And that ability will have been restricted in a way that this Court never before has permitted, encroaching upon a prerogative that our Constitution reserves to this body, as recognized in Wajert and Shaulis. It is unclear to me how we can tolerate a statute that does something undeniably impermissible in its restrictive effect upon attorneys simply because the provision hides impermissible restrictions upon the practice of law behind a passel of similarly restricted non-attorneys.
Consistent with Shaulis, I believe that the current/former distinction is sufficient to dispose of the instant matter. Because I find the generally applicable test, as employed by the Majority, to be problematic, I would forego its application here. Under Wajert and Shaulis, it seems clear to me that the General Assembly lacks authority to preclude Attorney Yocum from future employment as a lawyer dealing with the gaming industry. Under our precedents, the statutory provisions here are unconstitutional as applied to former government attorneys.4
And yet, our inquiry does not end there. Neither Wajert nor Shaulis addressed what amount to limitations on attorneys in the form of prohibitions or restrictions upon the solicitation of prospective employment
In this connection, I would consider how this Court has exercised its own regulatory authority with regard to the private practice of former government attorneys in capacities that leverage their prior experiences and expertise on behalf of individuals and entities with business before the attorney’s former public agency. Our Rules of Professional Conduct impose upon attorneys various affirmative obligations designed to protect against the conflicts of interest that can arise when public employees approach (or are approached by) individuals or entities with interests that lie within their agency’s jurisdiction with regard to future employment. To that end,
To the extent that the challenged subsections of Section 1201 purport to bar a former Board employee from practicing law in any desired sector with any desired employer after terminating her employment with the Board, they constitute an unconstitutional intrusion upon this Court’s exclusive authority to regulate the practice of law.7 This result is compelled by Wajert and Shaulis. However, to the extent that the challenged provisions preclude a current government attorney from seeking such employment while she is still employed by the Board, they fall within the ambit of Maunus and P.J.S. and do not exceed the General Assembly’s authority to provide
generally applicable standards for the conduct of current employees.8
Justices Todd and Donohue join this concurring and dissenting opinion.
160 A.3d 253
Joseph George BRIMMEIER, III, Appellant
v.
PENNSYLVANIA TURNPIKE COMMISSION, Appellee
No. 104 MAP 2016
Supreme Court of Pennsylvania.
DECIDED: May 25, 2017
ORDER
PER CURIAM
AND NOW, this 25th day of May, 2017, the order of the Commonwealth Court of Pennsylvania is hereby AFFIRMED.
Justice Wecht did not participate in the consideration or decision of this case.
Notes
The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions. Notwithstanding the provisions of this section, the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television.
(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.....
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(2) shall not
* * * *
* * * *
(ii) negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b) (requiring such a law clerk first to disclose to his employer his intent to negotiate with such a party or lawyer).
See also Pa.R.P.C. 1.11, note 1 (“A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against current conflicts of interest stated in Rule 1.7. In addition, such a lawyer may be subject to statutes and government regulations regarding conflict of interest ...”).
The Majority contends that the Disciplinary Board lacks sufficient information to monitor conflicts of interest. Maj. Op. at 551 n. 11, 161 A.3d at 246 n. 11. True it is that the Board has no obligation to track changes of address in an effort to identify possible conflicts of interest. The practice of law is quintessentially a self-regulating profession. As licensed professionals, attorneys practicing law in this Commonwealth are self-monitoring. They must personally examine their practices to avoid conflicts of interest in representations. Attorneys also have an obligation to report violations of the Rules of Professional Conduct to the Disciplinary Board. Pa.R.P.C. 8.3, Explanatory Comment. Before deciding to change employment or to accept a new representation, attorneys practicing in this Commonwealth have an ethical obligation to consider whether their actions are in compliance with the Rules of Professional Conduct. Of particular significance in the present context, an attorney departing employment with the Gaming Board must determine whether his or her subsequent employment (and representations in connection therewith) complies with Rule 1.11. Law firms in this Commonwealth likewise have a variety of obligations to ensure conflict-free representations. Pa.R.P.C. 1.10.