Yocum v. Commonwealth, Pennsylvania Gaming Control Board

[J-50-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

SUSAN A. YOCUM, : No. 74 MM 2015
:
Petitioner :
:
:
v. :
:
:
COMMONWEALTH OF PENNSYLVANIA, :
PENNSYLVANIA GAMING CONTROL :
BOARD, : ARGUED: April 5, 2016
: RESUBMITTED: April 26, 2017
Respondent :

OPINION

JUSTICE DOUGHERTY DECIDED: May 25, 2017
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, 4 Pa.C.S. §§1101-1904 (the Gaming Act). Petitioner challenges as

unconstitutional certain restrictions imposed upon attorneys who are employed by the

Pennsylvania Gaming Control Board (Board), and seeks declaratory and injunctive

relief. The Board filed preliminary objections, asserting petitioner lacks standing to

pursue her claim, her claim is not yet ripe, and in any event, her claim fails on the

merits. We overrule the Board’s preliminary objections as to standing and ripeness, but
nevertheless conclude petitioner is not entitled to relief on the merits as the restrictions

included in the Gaming Act are constitutionally sound.1

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 gaming entity or an affiliate, intermediary, subsidiary or holding company of an

1
We note our review of preliminary objections in the first instance is highly unusual, and
derives from the General Assembly’s vesting of exclusive original jurisdiction in this
Court “to hear any challenge to or to render a declaratory judgment concerning the
constitutionality of” the Gaming Act. 4 Pa.C.S. §1904; see also Pennsylvanians Against
Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 392 (Pa. 2005)
(Gaming Act vested Supreme Court with original and exclusive jurisdiction to resolve
any constitutional challenges to Gaming Act).
2
4 Pa.C.S. §1201(h)(8) (amended 2006).
3
4 Pa.C.S. §1201(h)(13) (amended 2006).

[J-50-2017] - 2
applicant or licensed entity to two years after termination. 4 Pa.C.S. §1201(h)(13) (as

amended 2010). Specifically, Section 1201(h) currently provides in pertinent part as

follows:

(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

[J-50-2017] - 3
 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.

4 Pa.C.S. §1201(h)(8) and (13) (emphases added). Petitioner — who holds the position

of Assistant Chief Counsel III — is subject to the restrictions identified in Section

1201(h)(8) and (13). See 4 Pa.C.S. §1201(h)(14.1); Petition for Review, Exhibit B.

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

Constitution,4 which vests in this Court the exclusive authority to govern the practice of

4
In relevant part, Article V, Section 10 provides:

(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. . . . .
(…continued)

[J-50-2017] - 4
law; and (2) a permanent injunction against the enforcement of the challenged

restrictions. Specifically, petitioner alleges that, “[a]s a 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

Pa.R.C.P. 1028(a)(4), alleging insufficiency of the pleading in various respects. The

Board claims (1) petitioner lacks standing to challenge so-called “post-employment”

(continued…)
PA. CONST. art. V, §10(c) (emphasis added).

[J-50-2017] - 5
restrictions of the Act,5 as she is still employed by the Board, and has not yet been

aggrieved by their enforcement against her; (2) petitioner’s claims are not yet ripe

because she is still an employee of the Board and enforcement of post-employment

restrictions against her is hypothetical and speculative; (3) petitioner’s request for pre-

enforcement review is premature; (4) the Rules of Professional Conduct allow

protections against conflicts of interest as provided in the Act; and (5) the Act’s post-

employment restrictions do not violate the separation of powers as circumscribed in

Article V, Section 10(c).

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 from those facts that the claimant has not established a right

to relief. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 272 (Pa.

2005), citing Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 624, n.1 (Pa. 1999) (in

determining preliminary objections in nature of demurrer, all material facts set forth in

the pleading, and all inferences therefrom, are accepted as true). Preliminary

objections in the nature of a demurrer should be sustained only in cases that clearly and

without a doubt fail to state a claim for which relief may be granted. Id. at 274, quoting

MacElree v. Phila. Newspapers, Inc., 674 A.2d 1050, 1056 (Pa. 1996).

5
We note the Board often refers to the challenged restrictions as “post-employment”
restrictions, but as we explain further infra, the provisions apply while individuals are still
employed by the Board.

[J-50-2017] - 6
 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, 83 A.3d 901, 917

(Pa. 2013), citing Rendell v. Pa. State Ethics Comm’n., 983 A.2d 708, 718 (Pa. 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 Section 1201(h), which the

Board argues are post-employment restrictions, and as petitioner is still employed by

the Board, she has not yet been aggrieved by their enforcement against her. The Board

further argues petitioner knew about the post-employment rules when she took the

position and did not challenge them until now; the Board claims this circumstance belies

petitioner’s claim her harm is “immediate.” See Brief for Respondent at 12-13.

[J-50-2017] - 7
Petitioner, however, argues the plain language of Section 1201(h)(8) — stating no

employee of the Board “may directly or indirectly solicit, request, suggest or

recommend” to any gaming entity the employment of any person for a period of two

years from the termination of the person’s employment by the Board — binds current as

well as former employees, and thus presents a direct, immediate and substantial

impediment to her stated objective: to seek and accept employment in the private

sector, in her chosen profession, in her particular area of expertise, i.e., the gaming

industry. See Brief for Petitioner at 10-14. Petitioner claims the restriction prevents her

from looking for a job with a prospective employer, let alone accepting a position for two

years after she leaves the Board. See id. She argues the General Assembly’s

omission of the word “former” from the statute’s description of affected Board

employees means the provision applies to her right now, and she is thus presently

aggrieved, notwithstanding the Board’s reference to the statutes as “post-employment”

restrictions.

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., 972 A.2d 487, 496 (Pa. 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, 821 A.2d 1238, 1243 (Pa. 2003). Moreover, one has

a substantial interest in the outcome of litigation if her interest surpasses that “of all

[J-50-2017] - 8
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, 838 A.2d

566, 577 (Pa. 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. Section 1201(h)(8) specifically

prohibits petitioner, as an “employee of the Board,” from soliciting, requesting,

suggesting, or recommending employment with any applicant, licensed entity or an

affiliate, intermediary, subsidiary or holding company. Petitioner alleges in her petition

her “desire to pursue employment opportunities and to render professional legal

services to clients outside the Gaming Board.” Petition for Review at ¶23. Petitioner

further avers she has been informed by persons and 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

[J-50-2017] - 9
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 interfering with his

ability to provide proper medical care, or indicated the chemicals posed a public health

hazard, this Court nonetheless held the physician’s interest in the outcome of the

litigation regarding constitutionality of the provisions was “neither remote nor

speculative.” Id. The Court recognized “the untenable and objectionable position in

which Act 13” placed him:

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, 833

A.2d 123, 129 (Pa. 2003). Shaulis, an attorney with the Pennsylvania Department of

Revenue, questioned provisions of the State Ethics Act which ostensibly applied to limit

[J-50-2017] - 10
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.” 65 Pa.C.S. §1103(g). After

the State Ethics Commission confirmed Section 1103(g) applied to limit Shaulis’s ability

to practice in the relevant tribunals, this Court determined she was aggrieved because

“if she took the actions therein proscribed, she would expose herself to the exact ethical

investigation that she was attempting to forestall by seeking the advice of the

Commission in the first place.” Shaulis, 833 A.2d at 691. Petitioner claims this matter is

similar to the pre-enforcement review in Shaulis, where the Court recognized as

untenable the attorney’s choices to either “violate the law and risk an ethics

investigation or forgo practicing in Shaulis’[s] area of expertise.” Brief for Petitioner at

18, citing Shaulis, 833 A.2d 130. Petitioner claims she likewise faces objectionable

options to: (1) forego practicing law in her area of expertise; or (2) test the law by

violating it and seeking employment as an attorney directly representing gaming

entities, or with a law firm representing gaming entities as clients, with adverse

consequences to both a potential future employer and petitioner herself. See Brief for

6
Shaulis addressed both the petitioner’s standing to challenge the employment
restrictions, as well as the constitutionality of those provisions. A majority of the Court,
including Chief Justice Cappy and Justices Castille and Eakin, joined the portion of
Justice Newman’s opinion holding Shaulis had standing. Shaulis, 833 A.2d at 132. In
addition, a majority of the Court, comprised of Chief Justice Cappy and Justices Castille
and Lamb, joined the portion of Justice Newman’s opinion holding the Ethics Act
provision unconstitutional. Id.

[J-50-2017] - 11
Petitioner at 18; see also, e.g. Petition 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 claims to be facing. Brief for Respondent at 16.

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 Sections 1201(h)(8) and (13)

and tried to obtain new employment in Pennsylvania’s gaming industry, she would be in

violation of the Act, exposing herself — and her potential employer — to adverse

consequences, including damage to her reputation, and potentially instigating the loss

of her new employer’s gaming license. See 4 Pa.C.S. §1201(h)(13). Under the

circumstances, we conclude petitioner has standing to challenge the constitutionality of

the Gaming Act’s employment restrictions.

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

[J-50-2017] - 12
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

[J-50-2017] - 13
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

challenge, the Board argues petitioner failed to state a claim on which she is legally

entitled to relief, because the employment restrictions at Sections 1201(h)(8) and (13) of

the Gaming Act are constitutionally sound. We reiterate, in ruling on preliminary

objections in the nature of a demurrer, a court’s role is to accept all well-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 Sections 1201(h)(8) and (13) of the Gaming Act is a pure question of law, and no

material factual dispute exists. Accordingly, with objections to standing and ripeness

overruled, we proceed to determine the merits of petitioner’s claim. See Robinson, 83

A.2d at 817.

Petitioner challenges the employment restrictions set forth in Sections 1201(h)(8)

and (13) of the Gaming Act on the basis they conflict with this Court’s authority under

Article V, Section 10(c) of the Pennsylvania Constitution which states, in relevant part:

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

[J-50-2017] - 14
 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 PA. CONST. art. V, §10(c) (emphasis added). Section 10(c) specifically prohibits the

General Assembly from enacting laws that are “inconsistent with” the rules prescribed

by this Court regarding the practice of law. Pursuant to its constitutional authority, this

Court has established, inter alia, Rules of Professional Conduct, Pa.R.P.C., and Rules

of Disciplinary 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, 701 A.2d 568, 571 (Pa. 1997), quoting Commonwealth v.

Kohl, 615 A.2d 308, 315 (Pa. 1992). See also Pennsylvanians Against Gambling

Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa. 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., 805 A.2d 476, 479 (Pa. 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

[J-50-2017] - 15
infringement on this Court’s constitutional power to prescribe rules governing the

practice of law. See PA. CONST. art. V, §10(c). Additionally, in interpreting provisions of

the Pennsylvania Constitution, “[o]ur ultimate touchstone is the actual language of the

constitution itself.” Buckwalter v. Borough of Phoenixville, 985 A.2d 728, 730 (Pa.

2009), quoting Jubelirer v. Rendell, 953 A.2d 514, 528 (Pa. 2008), quoting Stilp v.

Commonwealth, 905 A.2d 918, 939 (Pa. 2006). The constitutional language must be

interpreted as the average person would have understood it when it was adopted. Stilp

905 A.2d at 939. Moreover, “[a]ll doubts are to be resolved in favor of finding that the

legislative enactment passes constitutional muster.” PAGE, 877 A.2d at 393, citing

Commonwealth v. Hendrickson, 724 A.2d 315, 317 (Pa. 1999). As explained below, we

conclude petitioner has failed to overcome this presumption, and Sections 1201(h)(8)

and (13) of the Gaming Act do not improperly invade the Supreme Court’s authority set

forth in Article V, Section 10.

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.

[J-50-2017] - 16
 In making this argument, petitioner relies upon Wajert v. State Ethics Comm’n,

420 A.2d 439 (Pa. 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

65 P.S. §403(e), providing “[n]o former official or public employee shall represent a

person with or without compensation, on any matter before the governmental body with

which he has been associated for one year after he leaves that body.” See Wajert, 420

A.2d at 440, quoting 65 P.S. §403(e). Wajert argued the regulation improperly limited

his ability to practice law after he left the bench. This Court held the provision applied to

judges who had retired or resigned from the bench. Id. at 442. The Wajert Court further

held the prohibition in the Ethics Act against “representing” a person in matters before

the court targeted the practice of law, and thus improperly infringed on this Court’s

constitutional authority to govern the conduct of attorneys. Id. at 441-42.

As in her argument on standing and ripeness, petitioner also relies on Shaulis for

her position on the merits that Sections 1201(h)(8) and (13) are unconstitutional. As

stated, Shaulis challenged an Ethics Act provision — nearly identical to 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 of the Pennsylvania Rules of Professional Conduct.” Id. at

132. Petitioner argues the scope and duration of the employment restrictions in

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Sections 1201(h)(8) and (13) of the Gaming Act exceed the post-employment

restrictions found to be unconstitutional in Wajert and Shaulis, and thus are also

unconstitutional.

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, 723 A.2d 174 (Pa. 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 . . .”

65 P.S. §403(a) and (f). In determining the challenged Ethics Act provisions were not

an unconstitutional violation of the separation of powers, the P.J.S. Court held “the

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.” P.J.S., 723 A.2d at

178.

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

[J-50-2017] - 18
not unconstitutional because it applies to all employees, not just attorneys); Maunus v.

Commonwealth, State Ethics Comm’n, 544 A.2d 1324, 1327 (Pa. 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 that the challenged provisions do not violate Article V, Section 10.

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

7
We recognize the opinions in Shaulis and Wajert focused in part on whether the
restrictions applied to current or former employees. See Shaulis, 833 A.2d at 131-32;
Wajert, 420 A.2d at 442. The Gaming Act’s restrictions at issue here apply to every
“member, employee or independent contractor of the board,” §1201(h)(8), and also to
“an employee of the board,” §1201(h)(13); current employees are affected, as well as
former employees who are within the two-year restriction period. However, as we
explain in further detail infra, although the distinction between current and former
employees is relevant for purposes of our discussion on standing and ripeness, it is not
critical to our determination of the merits of the constitutional question, where the
validity of the restriction depends primarily upon whether it purports to regulate the
practice of law or not. See P.J.S., supra; see also Shaulis, 833 A.2d at 136 n.2 (status
as former employee should not control determination of restriction’s validity) (Saylor, J.,
dissenting).

[J-50-2017] - 19
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

unconstitutional 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 restrictions in the Gaming Act are not directed at

attorneys exclusively, but rather all employees of the Board.8 The impact of the

8
The intended effect of these limited restrictions is obvious, and based on a sound and
salutary public policy: to prevent conflicts of interest, or appearances thereof, in a
historically controversial industry, by restricting current Board employees of all kinds
from using their special contacts and insider expertise as a springboard to other
employment opportunities in the field, at least for a closely circumscribed period of time.
See, e.g., Brief for Respondent at 18, quoting Pennsylvania Senate Journal, 2009 Reg.
Sess. No. 52 at 871 (“[T]he Gaming Industry brings unique difficulties along with its
legalization and operation in Pennsylvania, it appears to be an industry where it is not
out of bounds for the legislature to require all former government employees (attorneys
included) to have restrictions in place to ‘prevent corruption and malfeasance and to
insure public confidence.’”); see also Pennsylvania Senate Journal, 2009 Reg. Sess.
(…continued)

[J-50-2017] - 20
employment restrictions on attorneys is real, as we recognized in our discussion of

standing and ripeness, but regulation of the practice of law is not the goal of the

legislation, unlike the provisions directed at attorneys, and held unconstitutional in

Shaulis and Wajert. As such, this Court’s authority over attorneys is not infringed by the

Gaming Act’s employment restrictions applicable to all employees, only some of whom

(continued…)
No. 52 at 872 (General Assembly noted purpose of 2010 Amendments, which extended
duration of Gaming Act’s employment restrictions, was to address “revolving door”
issues created by comings and goings of Board employees). Cf. Shaulis, 833 A.2d at
136 (Saylor, J., dissenting) (employment restriction intended to “prevent pernicious
practices and the appearance of impropriety, thereby strengthening public confidence in
government by assuring its constituents of the impartiality and honesty of its public
officials”). Such restrictions are not novel and can also be found in other industries
where employees are privy to information and knowledge which could lead to an
appearance of a conflict of interest in their field post-employment. See, e.g., In re
Calder, 135 A.2d 1062, 1072-73 (Pa. Super. 2016) (denying school police officer private
detective license because use of limited police powers for private business constitutes
appearance of impropriety and conflict of interest). The restrictions are thus intended to
prevent the problematic “revolving door” of employees coming and going from the
Gaming Board and do not unconstitutionally regulate the practice of law — either by
intent or application.

In any event, petitioner herself acknowledges the limited nature of the employment
restrictions, which apply only to her ability to practice law “as it relates to gaming entities
or law firms that represent gaming entities.” Brief for Petitioner at 27. Petitioner is not
completely prohibited from practicing law by Sections 1201(h)(8) and (13). Rather, the
restrictions effectuate the legislative intent of avoiding conflicts of interest by preventing
petitioner from working for a distinct subsection of clients within this Commonwealth and
before the Gaming Board, where she has special “insider” knowledge. Although the
perceived severity of the restriction (or lack thereof) does not bear directly upon our
constitutional analysis, we simply note petitioner is not prevented from obtaining new
employment in the gaming industry in another jurisdiction, or remaining in Pennsylvania
to practice law in practice areas other than gaming for two years.

[J-50-2017] - 21
are attorneys. See P.J.S., 723 A.2d at 178 (relying on Maunus and noting this Court

has declined to find its “exclusive jurisdiction over the professional and ethical conduct

of all attorneys was infringed by the imposition of workplace regulations on persons who

also happened to be attorneys”); Maunus, 544 A.2d at 1327 (there is “no basis upon

which to conclude that . . . employees of a state agency are entitled to an exemption

from [statutory] requirements simply because they are attorneys”).

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

Slip Op. at 5 (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

[J-50-2017] - 22
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 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.

In P.J.S., the plaintiff-attorney challenged the jurisdiction of the Ethics

Commission to investigate an alleged conflict of interest arising out of his public

employment as the city solicitor for the City of Erie while simultaneously maintaining a

private practice and, in that private practice, being hired by the City’s insurer to defend

the City in a civil lawsuit. P.J.S., 723 A.2d at 175. In analyzing whether the provisions

of the Ethics Act which prohibited the attorney’s conduct violated Article V, Section 10(c)

of the Pennsylvania Constitution, this Court did not consider or even mention whether

the restrictions applied to him as a current or former public employee; rather, the

analysis turned on whether the regulation was targeted exclusively at attorneys and the

[J-50-2017] - 23
practice of law. This Court specifically held our jurisdiction “is not infringed when a

regulation aimed at conduct is applied to all persons, and some of those persons

happen to be attorneys.” Id. at 178. Thus, the ethics restriction withstood challenge not

because it applied only to current employees, but because it applied to all employees,

and not just lawyers. Moreover, although the restriction arguably did affect the plaintiff’s

practice of law, it was upheld because it applied equally to all public employees of the

City of Erie.

Similarly, in Maunus, the attorney-plaintiffs challenged regulations in the Ethics

Act requiring all public employees to disclose financial interests, claiming the regulations

violated Article V, Section 10(c). In finding the regulations were constitutionally sound

and applicable to the lawyer-employees, the Maunus Court did not consider their status

as current employees (although they unquestionably were), but instead focused on

whether the rule infringed on their practice of law, noting there is “no basis upon which

to conclude . . . employees of a state agency are entitled to an exemption from

[regulations] simply because they are attorneys.” Maunus, 544 A.2d at 1327.

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 65 Pa.C.S. §1103(g); Wajert,

420 A.2d at 440, citing 65 P.S. §403(e). The distinction between current and former

[J-50-2017] - 24
employees was not, as a practical matter, dispositive in those cases, and is not

dispositive here.9

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 5 (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

9
The Shaulis Court explained its use of a current/former employee distinction as
follows: “we refused to overrule Wajert in Maunus, indicating the Maunus-P.J.S. line of
cases presumes the existence of Wajert.” Shaulis, 833 A.2d 132. It appears this
proclamation unnecessarily overstated the Maunus Court’s constitutional analysis with
respect to Wajert; although Maunus did not overrule Wajert, there was no call by the
litigants in Maunus to do so. Instead, the Maunus Court distinguished Wajert on the
facts, noting the issue in Maunus was “not within the category of cases which have
presented the factual predicate for concluding that our jurisdiction over the courts of
Pennsylvania and its officers has been unconstitutionally usurped by the legislature.”
Maunus, 544 A.2d at 1328. The inclusion of Wajert in a string-cite list of distinguishable
cases is the only citation to Wajert in Maunus; in holding the regulations at issue were
constitutional, the Maunus Court simply did not engage in any analysis regarding the
status of the attorney-plaintiffs as current or former employees. Thus, a careful reading
reveals the Shaulis Court’s description of the prior case law was simply inaccurate.

[J-50-2017] - 25
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 4 Pa.C.S. §1201(h)(14) (“The State Ethics Commission shall issue a written

determination of whether a person is subject to paragraph (13) or (13.1) upon the

written request of the person or the persons’ employer or potential employer. . .”).

Regardless of whether or not the affected attorney has left the Board’s employ, it is not

the Board which acts to guard against the attorney’s unethical or unprofessional

conduct.

10
Our holding in this regard does not undermine the validity of Wajert and Shaulis to the
extent they correctly focused on the fact the challenged regulations were specifically
targeted at attorneys only. Shaulis, 833 A.2d at 131; Wajert, 420 A.2d 442.

[J-50-2017] - 26
 Further, a thorough examination of the caselaw applying Article V, Section 10(c)

of the Pennsylvania Constitution reveals that Shaulis was the first — and only — case

to articulate the current/former employee distinction relied upon by our learned

colleagues in dissent. While we recognize and acknowledge the value of Shaulis as

precedent as well as the principle of stare decisis, we also acknowledge that stare

decisis “is not an inexorable command to be followed blindly when such adherence

leads to perpetuating error.” Stilp, 905 A.2d at 967, citing Mayle v. Pennsylvania

Department of Highways, 388 A.2d 709, 720 (Pa. 1978) (“[T]he doctrine of stare decisis

is not a vehicle for perpetuating error, but rather a legal concept which responds to the

demands of justice and, thus, permits the orderly growth processes of the law to

flourish.”).

Sections 1208(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. In effecting that

examination, we come to the unavoidable conclusion that the current/former distinction

cannot be the determinative test in deciding whether a restriction infringes on this

Court’s Constitutional authority to oversee the practice of law. Holding, as the dissent

articulates, that the employment status of an attorney is the seminal factor in deciding

whether a restriction violates Article V, Section 10(c) of our Constitution will perpetuate

the error articulated in Shaulis. It is regulation of the practice of law that Article V,

Section 10(c) expressly places into this Court’s jurisdiction, and only proscriptions which

are inconsistent with this Court’s rules violate that constitutional provision.

[J-50-2017] - 27
 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 1208(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. 4 Pa.C.S. §1201 (h)(8) (emphasis added). In

addition, Section 1201(h)(13) expressly applies to any “employee of the board whose

duties substantially involve licensing, enforcement, development of law, promulgation of

regulations or development of policy . . . including the executive director, bureau

directors and attorneys,” and restricts such “individuals” from, inter alia, accepting

employment from various gaming entities or “appearing” before the Board. 4 Pa.C.S.

§1201(h)(13). As the restrictions expressly include attorneys, among other individuals,

and apply to all employees of the Board engaged in a wide array of activities, it is

without question that the restrictions are not “specifically targeted” at attorneys. But see

Shaulis, 833 A.2d at 131; Wajert, 420 A.2d 442. The Gaming Act restrictions therefore

do not improperly infringe on this Court’s authority to regulate the practice of law.

P.J.S., 723 A.2d at 178; Maunus, 544 A.2d at 1324.

Moreover, unlike the restrictions in Wajert and Shaulis, which were found to

improperly regulate the practice of law because they specifically prohibited a

[J-50-2017] - 28
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. . .” 4 Pa.C.S. §1201(h)(13)(ii). Unlike a

restriction on “representing,” a restriction on making an “appear[ance]” does not

necessarily implicate the acts of an attorney taken on behalf of a client, and therefore

does not specifically target attorneys. In fact, Sections 1201(h)(8) and (13) of the

Gaming Act broadly prohibit all individuals from several activities, which include

appearing before the Board in capacities which do not implicate or involve the practice

of law, for example, applying for licenses or permits from the Board, or appearing as a

lay witness on behalf of an applicant before the Board.

We reject the argument our Article V, Section 10(c) jurisdiction mandates that

attorneys may escape the employment restrictions of the Gaming Act — which are

applicable to all employees in an effort to avoid conflicts of interest — simply because

they are attorneys. P.J.S, 723 A.2d at 178. Cf. Villani v. Seibert, __ A.3d __, 2017 WL

1489048, at *13 (Pa. April 26, 2017) (this Court should not “per se immunize attorneys,

as attorneys” from civil liability under the Dragonetti Act on the basis of Article V,

Section 10(c)). Any other interpretation is ripe for abuse. For example, an attorney (like

petitioner), now employed by the Gaming Board, would have the luxury of circumventing

the restrictions applicable to all other employees and obtaining future employment with

a private gaming entity — whether as an attorney or in some other capacity.

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

[J-50-2017] - 29
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 7-8 (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

11
The most recent annual report from The Disciplinary Board of the Supreme Court of
Pennsylvania states that, as of December 31, 2015, there were 64,509 active paid
attorneys and 10,951 inactive paid attorneys in the Commonwealth. See
http://www.padisciplinaryboard.org/about/pdfs/2015-annual-report.pdf (last visited on
Feb. 13, 2017) (providing Annual Report of Disciplinary Board). Pennsylvania Rule of
Disciplinary Enforcement 219(d)(1)(ii) requires attorneys to provide the Disciplinary
Board with a current office address, but compliance with that Rule does not provide the
Disciplinary Board with an accurate picture of attorneys changing employers in order to
effectively monitor any potential conflicts of interest; the number of attorneys changing
addresses also reflects attorneys who change physical offices yet stay with the same
employer, and attorneys who leave the practice of law altogether. See Pa.R.D.E.
219(d)(1)(ii) (requiring attorneys to pay annual fee and file a form containing “current e-
mail, residence and office addresses of the attorney”).

[J-50-2017] - 30
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 Pa.R.P.C. 1.11(d)

(“Except as law may otherwise expressly permit,” a lawyer currently serving as a public

officer or employee shall not engage in various activities); see also id., note 1 (lawyer

who has served or is currently serving as a public officer or employee subject to Rules

including prohibition of conflicts of interest also “may be subject to statutes and

government regulations regarding conflict of interest . . .”). And, as we have illustrated

above, the reach of Rule 1.11 is narrower than Sections 1201(h)(8) and (13) of the

Gaming Act because the Rules of Professional Conduct will not apply to prohibit an

attorney from appearing before the Board in a non-attorney capacity, e.g., as an

applicant for a license or as a lay witness, and policing of conflicts by this Court as

envisioned by the Rules is undermined if the Gaming Board attorney moves into a non-

attorney position at a gaming entity. In the absence of the challenged statutes, the one-

time lawyer/now-gaming executive may enjoy blanket protection from the consequences

of conflicts because she is no longer practicing law, and therefore beyond the reach of

the Rules.

Importantly, Article V, Section 10(c) itself does not state this Court’s authority

over the practice of law or its “power to prescribe general rules” is exclusive, but that

exclusivity is expressed in case law as well as in the Rules promulgated by this Court in

furtherance of its constitutional authority. See, e.g., Pa.R.D.E. 103 (“The Supreme

Court declares that it has inherent and exclusive power to supervise the conduct of

attorneys who are its officers (which power is reasserted in Section 10(c) of Article V of

[J-50-2017] - 31
the Constitution of Pennsylvania) . . . .”). The “exclusivity” of this Court’s jurisdiction

refers to the fact that no other entity but this Court has power over attorneys qua

attorneys, that is, because of their status as attorneys. See P.J.S., 723 A.2d at 178

(“The jurisdiction of this court is exclusive in the sense that it applies equally to all

members of the Bar of Pennsylvania. The exclusive jurisdiction of this court is infringed

when another branch of government attempts to regulate the conduct of attorneys

merely because of their status as attorneys.”).

In other words, “[w]hat is contemplated by the exclusivity provision contained in

Pa.R.D.E. 103 is that this Court is the only governmental body entitled to regulate and

discipline the professional class of attorneys. No other component of our state

government may impose duties applicable to every attorney admitted to practice in the

Commonwealth, nor may another Commonwealth entity admit to practice or discipline

an attorney. These prerogatives are within this Court’s exclusive jurisdiction.” Maunus,

544 A.2d 1326. There can be no question the authority to supervise the practice of law

in this Commonwealth lies in this Court’s constitutional province, and we affirm the

command in Article V, Section 10(c) that “all laws shall be suspended to the extent” they

are inconsistent with our Rules. But such exclusivity does not have the effect of

preventing attorneys from being subject to other kinds of liability or judicial process.

See P.J.S., 723 A.2d 178 (“Although members of the Bar of Pennsylvania are uniformly

subject to the professional and ethical standards imposed and regulated by this [C]ourt,

they are not, by virtue of that membership exempt from all other professional and ethical

regulations.”). In fact, the operative constitutional provision expressly acknowledges the

General Assembly may enact laws on the subject of attorneys as long as they are not

[J-50-2017] - 32
“inconsistent with rules prescribed” pursuant to this Court’s authority. PA. CONST. art. V,

§10(c) (“All laws shall be suspended to the extent that they are inconsistent with rules

prescribed under these provisions . . .”). Cf. Villani, supra; Maritrans GP Inc. v. Pepper

Hamilton & Scheetz, 602 A.2d 1277, 1285 (Pa. 1992) (“Attorneys have always been

held civilly liable for engaging in conduct violative of their fiduciary duties to clients,

despite the existence of professional rules under which the attorneys could also have

been disciplined.”)

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

are subject to the Rules of Professional Conduct alone, and no other statutes or legal

obligations simply by virtue of their status as attorneys, and without reference to

whether the regulated activity constitutes the practice of law, would place attorneys in a

special class immune to governance by any entity other than this Court. Taken to the

extreme, such a holding would invalidate any number of civil and criminal statutes when

they are applied to individuals who happen to be attorneys, and simply cannot be

correct.

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

Article V, Section 10 of the Pennsylvania Constitution. Therefore, the Board’s

[J-50-2017] - 33
preliminary objections are overruled in part and sustained in part, and the petition for

review is dismissed with prejudice.

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.

[J-50-2017] - 34