[J-1-2016] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
WEST PHILADELPHIA ACHIEVEMENT : No. 31 EM 2014
CHARTER ELEMENTARY SCHOOL, :
:
Petitioner :
:
:
v. :
:
:
THE SCHOOL DISTRICT OF :
PHILADELPHIA AND SCHOOL REFORM :
COMMISSION, :
: ARGUED: September 9, 2014
Respondents : RESUBMITTED: January 20, 2016
DISSENTING OPINION
MR. JUSTICE BAER DECIDED: February 16, 2016
I respectfully dissent from the majority’s holding that Section 6-696(i)(3) of the
Distress Law, 24 P.S. § 6-696(i)(3), which grants the School Reform Commission
(“SRC”) the power to suspend provisions of the Public School Code, constitutes an
unlawful delegation of legislative authority in violation of Article II, Section 1 of the
Pennsylvania Constitution.1 In my view, Section 6-696(i)(3) does not delegate
legislative power, but rather delegates the authority to suspend legislation that affects
the economic stability of a school district in financial distress, which is constitutionally
1
This provision, entitled, “Legislative power,” states “[t]he legislative power of this
Commonwealth shall be vested in a General Assembly, which shall consist of a Senate
and a House of Representatives.” PA. CONST. art. II, § 1.
permissible pursuant to Article I, Section 12.2 Accordingly, I would reject the
constitutional challenge raised by the West Philadelphia Achievement Charter School
(“Charter School”) and deny the Charter School’s request for injunctive relief.
Preliminarily, it is relevant that the Distress Law embodies a comprehensive
statutory scheme to preserve school districts that are experiencing a financial crisis by
remediating identified types of economic hardship that have resulted from ordinary
operating procedures under the Public School Code. The statute identifies several
threshold circumstances and levels of fiscal hardship that trigger the Secretary of
Education’s ability to issue a certificate declaring a school district in financial distress.
24 P.S. § 6-691. When a school district of the first class, i.e., the Philadelphia School
District, is deemed to be in financial distress the SRC is established to replace the
school district’s board of directors and assume the latter’s powers and duties. Id. § 6-
696(a). The SRC serves as an instrumentality of the school district to administer the
operation, management and educational program of the school district. Id. § 6-696
(e)(1).
Section 6-696(i) enumerates fourteen specific powers granted to the SRC, which
powers continue until the Secretary of Education issues a declaration to dissolve the
SRC, purportedly when financial stability has been achieved. Id. §6-696(e)(1).3 An
2
Article I, Section 12, entitled, “Power of suspending laws,” states “[n]o power of
suspending laws shall be exercised unless by the Legislature or by its authority.” PA.
CONST. art I, § 12 (emphasis added).
3
These powers permit, inter alia: the appointment of entities needed to conduct
necessary fiscal and performance audits; agreements with for-profit or nonprofit
organizations to operate one or more schools with funds identified in the agreement; the
suspension of requirements governing the establishment of, and facilities for, charter
schools; the suspension or revocation of a charter; employing professional and senior
management employees without state certification upon the committee’s approval of
qualifications and salary; the closing or reconstitution of a school; the suspension of
(Econtinued)
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additional power enumerated in Section 6-696(i) is the power to suspend provisions of
the Public School Code, which is challenged herein. The text of Section 6-696(i)(3)
provides as follows:
In addition to all powers granted to the superintendent by law and a
special board of control under section 693 and notwithstanding any other
law to the contrary, the School Reform Commission shall have the
following powers:
* * *
To suspend the requirements of this act and regulations of the
State Board of Education except that the school district shall remain
subject to those provisions of this act set forth in sections 1073, 1073.1,
1076, 1077, 1078, 1080, 1732-A(a), (b) and (c), 1714-B and 2104 and
regulations under those sections.
24 P.S. § 6-696(i)(3).4
Reduced to its essence, the Charter School’s contention, which the majority
adopts, is that Section 6-696(i)(3)’s suspension power is so broad that it delegates
legislative power to the SRC in violation of the anti-delegation rule.5 This premise is
(continuedE)
professional employees without regard to the section normally governing suspensions;
the appointment of managers, administrators, and others to oversee operations of
schools; the reallocation of resources, amendment of school procedures, development
of achievement plans, and implementation of testing or other evaluation procedures for
educational purposes; the negotiation of new collective bargaining agreements; the
delegation to a person of powers deemed necessary to carry out the purposes of this
article; and the employment of persons to review the financial and educational programs
of school buildings and make recommendations to the SRC regarding improvements
thereto. See 24 P.S. § 6-696(i).
4
As discussed infra, the text of this provision addresses only the power to suspend
legislation, not create new law, and provides guidance in that it enumerates particular
provisions that cannot be suspended and to which the school district shall remain
subject.
5
In presenting its argument to this Court, the Charter School points to specific actions
taken by the SRC, suggesting that its quarrel is not with the constitutionality of the
(Econtinued)
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based upon the purported lack of any restraints or standards contained in the statutory
language of Section 6-696(i)(3) to guide the SRC’s exercise of the suspension power as
well as the alleged lack of any means to protect against the arbitrary or ad hoc exercise
of the SRC’s discretion in choosing which statutory provisions to suspend.
Respectfully, I disagree as I believe that the General Assembly, when enacting
Section 6-696(i)(3) and the comprehensive statutory scheme of which it is a part,
provided adequate standards to guide the SRC’s exercise of discretion in determining
which provisions of the Public School Code should be subject to the suspension power.
I further find there are procedures in the Distress Act that adequately protect against the
SRC’s arbitrary or ad hoc suspension determinations.
My analysis begins with an examination of what constitutes legislative power.
Legislative power has been defined as the power “to make, alter, or repeal laws.”
Blackwell v. State Ethics Comm'n, 567 A.2d 630, 637 (Pa. 1989). Accordingly, “[i]t is
axiomatic that the Legislature cannot constitutionally delegate the power to make law to
any other branch of government or to any other body or authority.” Gilligan v.
Pennsylvania Horse Racing Commission, 422 A.2d 487, 489 (Pa. 1980) (citing State
Bd. of Chiropractic Examiners v. Life Fellowship of Pa., 272 A.2d 478, 480 (Pa.
1971)).
The legislature may, however, constitutionally delegate to another body the
authority to execute and administer a law so long as the General Assembly makes the
basic policy choices and provides adequate standards and guidelines to allow the other
(continuedE)
Legislature’s delegation of authority, but with how the SRC has exercised the authority
granted. In my view, the propriety of the SRC’s actions is not properly before this Court
as it is not within the scope of our original jurisdiction in this matter; the only question we
may decide in this appeal pertains to the constitutionality of Section 6-696(i)(3).
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body to carry out those legislative policies. Blackwell, 567 A.2d at 637. Significantly, in
reviewing the adequacy of guiding standards incorporated in a law, this Court looks to
the law as a whole, considering its purpose and scope, the subject matters covered
therein, the duties prescribed and the broad or narrow powers granted. Dauphin
Deposit Trust Company v. Myers, 130 A.2d 686, 688 (Pa. 1957).6 The General
Assembly is not required “to provide a detailed how-to manual within each and every
legislative act” in order to supply adequate standards, Casino Free Philadelphia v.
Pennsylvania Gaming Control Bd., 934 A.2d 1249, 1252 (Pa. 2007), and all details of
administration need not be precisely or separately enumerated in the statute. Chartiers
Valley Joint Schools v. County Board of School Directors, 211 A.2d 487, 492 (Pa.
1965).
With this jurisprudence in mind, I conclude that Section 6-696(i)(3) is not an
unconstitutional delegation of legislative power under Article II, Section 1 as it does not
authorize the SRC to make, alter or repeal the law. Rather, Section 6-696(i)(3)
constitutes a lawful delegation of the General Assembly’s power to suspend laws
pursuant to Article I, Section 12 of the Pennsylvania Constitution. See PA. CONST. art.
I, § 12 (“No power of suspending laws shall be exercised unless by the Legislature or
its authority.” (emphasis added). While there is superficial appeal to the Charter
School’s contention that the suspension power is so broad that it effectively enables the
SRC to “legislate,” a close examination of the challenged provision and the statutory
6
The standards advanced by the Legislature must be sufficiently clear and definite to
guide the delegee in the performance of its stated function. Holgate Bros. Co. v.
Bashore, 200 A. 672, 674 (Pa. 1938); Bell Tel. Co. of Pennsylvania v. Driscoll, 21 A.2d
912, 915 (Pa. 1941). The standards must also be sufficiently broad to give the delegee
some flexibility to deal with the particular problem that the Legislature has asked it to
address. See Water & Power Res. Bd., Dep't of Forests & Waters v. Green Springs
Co., 145 A.2d 178, 182 (Pa. 1958).
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scheme of which it is a part reveals that the SRC is empowered only to suspend those
provisions of the Public School Code that result in financial distress to the school district
for the limited period during which the economic crisis of the school district continues.7
Because Section 6-696(i)(3) does not authorize the SRC to legislate by making,
altering, or repealing the law, it is not an unconstitutional delegation of legislative power.
By enacting Section 6-696(i)(3) and the Distress Law as a whole, the General
Assembly has made the basic policy determination to preserve the failing school district
by identifying and remediating sources of financial distress “notwithstanding any other
law to the contrary.” 24 P.S. § 6-696(i). The SRC does not hold the power over basic
policy choices inherent in the Public School Code, but may only exercise its discretion
to suspend those provisions that preserve the school district by remediating identified
types of financial distress.
I do not believe the Legislature afforded the SRC carte blanche powers to
suspend any combination of the School Code provisions. The standards guiding the
SRC’s exercise of discretion in determining which provisions of the Public School Code
to suspend appear both in Section 6-696(i)(3) itself, which enumerates several
provisions that may not be suspended, as well as in the Distress Law as a whole, which,
as noted, makes clear that remediation efforts are aimed at resolving the financial
distress of the school district. A suspension of a provision of the Public School Code
that is immaterial to the contemplated advancement of financial stability is simply
unauthorized. Although the suspension power granted to the SRC is somewhat broad,
7
I appreciate that the Philadelphia School District has been in financial distress for well
over a decade, but this fact cannot cloud the constitutional analysis of the challenged
statutory language at issue. Stated differently, the SRC’s continued inability to achieve
economic stability within the school district has no bearing on the constitutionality of the
authority granted to the SRC by Section 6-696(i)(3).
[J-1-2016] [MO: Saylor, C.J.] - 6
it is necessarily so, as the breadth of the standard is driven by the breadth of the
problem, and the problem here is unquestionably great. Accord. Water & Power Res.
Bd., Dep’t of Forests & Waters, 145 A.2d at 182. Because the General Assembly can
neither predict all causes of refractory distress within such a complex system nor
statutorily prescribe precisely how to remedy the effects in all instances, the grant of
broad authority is required to effectuate the purposes of the legislation.
Additionally, the Distress Law contains procedures to protect against arbitrary or
ad hoc decision-making by the SRC. The Distress Law requires the SRC to submit
annually a report to the Governor and the Education Committees of both the House of
Representatives and the Senate regarding progress made toward improvements in
fiscal and academic performance. 24 P.S. § 6-696(n.2). The General Assembly
therefore brings to bear a multi-branch review of both the performance of the SRC in
abating distress and, ultimately, whether financial distress continues to exist at all. By
requiring the SRC to report annually to the Commonwealth’s chief executive and the
legislative committees, the Distress Law holds the SRC accountable to perform in
accordance with the remedial purposes of the Distress Law. Finally, the Distress Law
authorizes the Governor to remove a member of the SRC prior to expiration of the term
of office upon proof by clear and convincing evidence of malfeasance or misfeasance.
Id. § 6-696(b)(2). In my view, the improper exercise of an enumerated power, such as
the suspension power, could constitute grounds for removal of SRC members.
In conclusion, I acknowledge that the General Assembly’s grant of suspension
power to the SRC has vast implications on all charter schools, as well as other
individuals and entities involved in public education in the Philadelphia School District.
The enormity of the power conveyed and the dramatic effects resulting from exercise of
that authority, however, do not render Section 6-696(i)(3) unconstitutional under the
[J-1-2016] [MO: Saylor, C.J.] - 7
anti-delegation clause where the General Assembly made the requisite basic policy
decisions inherent in the legislation and afforded adequate guidance to the SRC in
exercising the suspension authority. It cannot be ignored that a party challenging a
legislative enactment bears the heavy burden of demonstrating that the statute clearly,
palpably, and plainly violates the constitution. Commonwealth v. Payne, 871 A.2d 795,
800 (Pa. 2005). In my opinion, the Charter School has simply failed to satisfy that
burden here.
Madam Justice Donohue joins this dissenting opinion.
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