[J-29-2017] [MO:Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
JOSEPH B. SCARNATI, SENATOR AND : No. 3 MAP 2016
PRESIDENT PRO TEMPORE OF THE :
SENATE OF PENNSYLVANIA; JAKE : Appeal from the Order of the
CORMAN, SENATOR AND MAJORITY : Commonwealth Court at No. 579 MD
LEADER OF THE SENATE OF : 2014, dated December 30, 2015
PENNSYLVANIA; JAY COSTA, : (finalized on January 29, 2016).
SENATOR AND MINORITY LEADER OF :
THE SENATE OF PENNSYLVANIA, : ARGUED: May 9, 2017
:
Appellants :
:
:
v. :
:
:
TOM WOLF, GOVERNOR OF :
PENNSYLVANIA; RANDY ALBRIGHT, :
SECRETARY OF THE BUDGET; :
TIMOTHY A. REESE, STATE :
TREASURER OF PENNSYLVANIA; :
DENNIS M. DAVIN, SECRETARY OF :
COMMUNITY AND ECONOMIC :
DEVELOPMENT; CINDY ADAMS DUNN, :
SECRETARY OF CONSERVATION AND :
NATURAL RESOURCES; JOHN H. :
QUIGLEY, SECRETARY OF :
ENVIRONMENTAL PROTECTION; :
CURTIS M. TOPPER, SECRETARY OF :
GENERAL SERVICES; KATHY :
MANDERINO, SECRETARY OF LABOR :
& INDUSTRY; MAJOR GENERAL JAMES :
R. JOSEPH, ADJUTANT GENERAL OF :
PENNSYLVANIA; JOSH SHAPIRO, :
CHAIRMAN OF THE PENNSYLVANIA :
COMMISSION ON CRIME AND :
DELINQUENCY, :
:
Appellees :
CONCURRING AND DISSENTING OPINION
JUSTICE BAER DECIDED: November 22, 2017
I join the Majority Opinion in substantial part but dissent from the disposition of
the case. Instead, based in part on issues raised in the Chief Justice’s concurring
opinion, I would remand to the Commonwealth Court for further consideration of
whether the General Assembly was adjourned during the relevant time period for
purposes of Article IV, Section 15 of the Pennsylvania Constitution.
In a great majority of situations, Article IV, Section 15 provides a very simple
framework epitomizing the checks and balances of our bicameral legislature and
tripartite system of government.1 If the Legislature passes a bill and the governor signs
1
In full, Section 15, entitled “Approval of bills; vetoes,” provides:
Every bill which shall have passed both Houses shall be
presented to the Governor; if he approves he shall sign it,
but if he shall not approve he shall return it with his
objections to the House in which it shall have originated,
which House shall enter the objections at large upon their
journal, and proceed to re-consider it. If after such re-
consideration, two-thirds of all the members elected to that
House shall agree to pass the bill, it shall be sent with the
objections to the other House by which likewise it shall be re-
considered, and if approved by two-thirds of all the members
elected to that House it shall be a law; but in such cases the
votes of both Houses shall be determined by yeas and nays,
and the names of the members voting for and against the bill
shall be entered on the journals of each House, respectively.
If any bill shall not be returned by the Governor within ten
days after it shall have been presented to him, the same
shall be a law in like manner as if he had signed it, unless
the General Assembly, by their adjournment, prevent its
return, in which case it shall be a law, unless he shall file the
same, with his objections, in the office of the Secretary of the
Commonwealth, and give notice thereof by public
proclamation within thirty days after such adjournment.
(…continued)
[J-29-2017] [MO: Wecht, J.] - 2
it, the bill becomes law. If the Governor refuses to sign a bill passed by the Legislature,
she is empowered by the Constitution to return the bill with relevant objections to the
house in which it originated to allow the General Assembly to reconsider the bill in light
of the objections. If the Governor neither signs nor returns the bill with objections within
ten days, it becomes law, as if the Governor had signed it. The critical exception to this
framework, relevant to the case at bar, concerns situations where the Governor is
prevented from returning the bill with objections due to the adjournment of the General
Assembly. In this limited circumstance, the Governor can veto the bill through public
proclamation.
While this framework easily applies to most situations, difficulties arise because
the language of Section 15 does not directly address any number of outlier situations, in
part because it does not define “adjournment.” Questions arise in regard to whether
one or both houses must be adjourned, whether a short break constitutes an
adjournment, and whether the adjourning bodies may only adjourn for purposes of
Section 15 with the consent of the other house. In these cases, the Governor may not
know whether a bill may be vetoed by returning it to the originating house or whether
the Governor may utilize the proclamation veto procedure. If the Governor chooses
incorrectly, the veto may be invalid.
In this case, we are faced with one species of questions relating to the
adjournment of the General Assembly for purposes of Section 15. Specifically, while it
is undisputed that both the House and Senate were not meeting, it is unclear whether
they were constitutionally adjourned with the consent of the other house for purposes of
preventing the Governor from returning the General Appropriations Act of 2014 (GAA)
(continued…)
PA. CONST. art. IV, § 15 (emphasis added).
[J-29-2017] [MO: Wecht, J.] - 3
and the Fiscal Code Amendments (FCA) with his objections. Moreover, the office of the
House Parliamentarian was open when the Governor attempted to return the bills with
his objections. I am concerned that the Majority Opinion may engender confusion for
our sister branches of government regarding when the General Assembly is, in fact,
adjourned, which, in turn, raises questions as to whether the Governor may utilize the
proclamation veto power.
I agree with my colleagues in the Majority that the following sentence of Section
15 instructs that an adjournment for purposes of that section (hereinafter “Section 15
Adjournment”) requires both the House of Representatives and the Senate to be
adjourned:
If any bill shall not be returned by the Governor within ten
days after it shall have been presented to him, the same
shall be a law in like manner as if he had signed it, unless
the General Assembly, by their adjournment, prevent its
return, in which case it shall be a law, unless he shall file the
same, with his objections, in the office of the Secretary of the
Commonwealth, and give notice thereof by public
proclamation within thirty days after such adjournment.
PA. CONST. art. IV, § 15. As explained by the Majority, given that the text surrounding
this statement clearly distinguishes between the individual houses and the General
Assembly, the use of the term “General Assembly” in this provision encompasses the
Senate and the House. Maj. Op. at 18-19; see also PA. CONST. art. II, § 1 (defining the
General Assembly as “consist[ing] of a Senate and a House of Representatives”).
I additionally concur with the Majority Opinion that a Section 15 Adjournment is
not limited to an adjournment sine die, defined as adjourning without appointing a day
on which to reconvene and often referencing an adjournment at the end of a legislative
session. See Maj. Op. at 4 n. 4, 20-21. Although I question the Majority’s reliance on
the analysis contained in a two paragraph footnote in Jubelirer v. Pennsylvania Dept. of
[J-29-2017] [MO: Wecht, J.] - 4
State, 859 A.2d 874, 877 n.2 (Pa. Cmwlth. 2004), I conclude, as explained below, that
other sections of the Constitution support the Majority’s holding that a Section 15
Adjournment is not limited to an adjournment sine die.
In contrast to the use of the generic term “adjournment” in Section 15, the
drafters of Article IV demonstrated the ability to apply the more specific and limited term
“adjournment sine die” in Section 8(b), a provision in Article IV addressing the
Governor’s appointment powers.2 In contrast, the absence of limiting language in
Section 15 indicates that the term should be read broadly.
Additionally, Article II of the Constitution, which governs the Legislature,
specifically addresses adjournment in Section 14, entitled “Adjournments,” which
provides, “Neither House shall, without the consent of the other, adjourn for more than
three days, nor to any other place than that in which the two Houses shall be sitting.”
PA. CONST. art. II, § 14. This sentence demonstrates that the drafters utilized the
unadorned term “adjournment” to encompass not only adjournments sine die but all
adjournments, even those lasting as few as three days. Indeed, an adjournment could
arguably last fewer than three days. Thus, I agree with my colleagues that a Section 15
Adjournment is not limited to an adjournment sine die.
However, given that a Section 15 Adjournment encompasses short
adjournments, I do not adopt the Majority Opinion’s use of “temporary recess”
terminology as a category separate from a Section 15 Adjournment. See Maj. Op. at
20. Instead, I conclude that a Section 15 Adjournment encompasses any length of
adjournment so long as both houses are adjourned.
2
In relevant part, Section 8(b) provides, “If the nomination is made during a recess or
after adjournment sine die, the Senate shall act upon it within 25 legislative days after
its return or reconvening.” PA. CONST. art. IV, § 8(b).
[J-29-2017] [MO: Wecht, J.] - 5
I additionally part from my colleagues’ presumption that the House and Senate
were adjourned on the relevant date for purposes of Section 15. See Maj. Op. at 22-23.
As noted, this is a prerequisite determination in this case because if the General
Assembly was not adjourned for purposes of Section 15, then it will not be deemed to
have prevented the Governor from returning the bill with his objections. If he was not
prevented from returning the bill, then his return in this case would have constituted a
valid veto and he would not have been constitutionally authorized to utilize the
proclamation veto procedure. Thus, it is critical for us to consider first whether the
General Assembly was constitutionally adjourned.
In this case, the presumption of adjournment is based solely on unilateral
notations in the Senate and House’s respective legislative journals. Indeed, the
question is further muddied because, while the House indicated that it was “adjourn[ed]”
from July 9 to August 4, 2014, unless recalled sooner, the Senate merely noted on the
legislative record that it was “recess[ed]” from July 8 until September 15, 2014, unless
recalled sooner. 2014 Pa. Legislative Journal—House 1234 (July 9, 2014), 2014 Pa.
Legislative Journal—Senate 2124 (July 8, 2014). In addition to this arguably lax
terminology in the Legislative Journals, I am not convinced that these unilateral
legislative notations comply with Article II, Section 14’s requirement that a house obtain
the consent of the other house to adjourn for more than three days.3
3
While I fully agree with the Majority Opinion’s observation that the focus of Article II,
Section 14 is on the dangers of unilateral adjournment, the plain text applies to all
adjournments of more than three days and is not limited to adjournments of one
chamber without the other chamber. As noted by the Majority Opinion, this Court
explained the purpose of Section 14 in Frame v. Sutherland, 327 A.2d 623 (Pa. 1974)
as follows:
The reason of policy for this requirement is not difficult to
discern. Because each house is powerless to enact
(…continued)
[J-29-2017] [MO: Wecht, J.] - 6
As noted by the Commonwealth Court, a factual question exists as to whether
this was a constitutionally compliant adjournment for purposes of Section 15. Scarnati
v. Wolf, 135 A.3d 200, 214-15 (Pa. Cmwlth. 2015) (observing that the record did not
reflect whether both houses had adjourned with the consent of the other and concluding
that “at this stage of the proceedings, we cannot hold as a matter of law that an
adjournment by the General Assembly required the Governor to give notice of his
actions by public proclamation”). As stated, if the General Assembly was not
constitutionally adjourned, then, seemingly, the Governor properly returned the bill with
(continued…)
legislation alone, each has a strong interest in insuring that
bills passed by it are considered by the other house. The
greatest threat to this interest is the possibility that the other
house might adjourn, thus disabling itself from the
consideration of bills. Protection against this possibility is
provided each house by the Constitution in the form of a
power to refuse to consent to the adjournment of the other
house.
Id. at 626–27 (footnote omitted) (holding that the Senate was not constitutionally
adjourned absent the consent of the House for purposes of triggering the Governor’s
recess appointment power under Article IV, Section 8(b)). The Court in Frame further
explained Section 14’s exception from the consent requirement for adjournments of less
than four days, noting that it allowed “flexibility in the administration of the legislative
calendar” while “present[ing] a minimal threat to each house's interest in the
consideration by the other of its bills.” Id.
While I acknowledge that the threat of unilateral adjournment is not directly at
issue in the case at bar, the text of Article II, Section 14 nevertheless applies to the
adjournment in this case, which exceeded three days, and to all such cases. Moreover,
our holding regarding what is required for an Article IV, Section 15 Adjournment will
apply beyond this case. In deciding this case, we should be vigilant not to run afoul of
our Constitution’s plain language nor to create a situation where the Governor would be
forced to guess whether both houses of the General Assembly have consented to the
adjournment of the other, such that they are constitutionally adjourned.
[J-29-2017] [MO: Wecht, J.] - 7
his objections in accord with Article IV, Section 15.4 Accordingly, I would remand for
legal and factual determinations of whether the General Assembly was constitutionally
adjourned for purposes of Article IV, Section 15, preventing the Governor from
constitutionally returning the bill.
A remand is required under my analysis because I join the Majority Opinion in
rejecting the Commonwealth Court’s ultimate determination that the Governor vetoed
the GAA and FCA by proclamation. I agree that a proclamation must provide the
constitutionally required information regarding the filing of the bill and objections with the
Secretary of the Commonwealth, even if the method of presenting the information is not
specifically dictated by Section 15.
Accordingly, I dissent to Majority Opinion’s disposition in this case, which is
based upon the conclusion that the Governor’s veto by return was constitutionally
deficient. Instead, I would remand to the Commonwealth Court for further proceedings
to determine whether the General Assembly was adjourned for purposes of Article IV,
Section 15. If so, the Majority Opinion is correct that the Appellant Senators should be
granted summary relief because the Governor’s veto by proclamation attempt failed to
4
I recognize that there is a dispute as to whether the Governor’s return of the bills to the
House Parliamentarian constitutes a return for purposes of Section 15. See Maj. Op. at
36 n.16. I observe that the language of Section 15 does not speak to this scenario, and
thus, I conclude it is not forbidden. I acknowledge that an inconsistency exists between
refusing to allow the Governor to return a vetoed bill to an agent when both houses of
the General Assembly are constitutionally adjourned and allowing return to an agent
when only the originating house is adjourned or when the General Assembly has not
met the constitutional requirements for adjournment. However, we are bound by the
language of the Constitution which prevents the Governor’s return only when the
“General Assembly” is adjourned, despite the benefits of immediate public notice
obtained by returning the vetoed bill to a house only when it is in session or via public
proclamation, as ably espoused by the Majority Opinion.
[J-29-2017] [MO: Wecht, J.] - 8
satisfy Article IV, Section 15. In contrast, if the General Assembly was not
constitutionally adjourned, the Governor should prevail.
Justice Dougherty joins this concurring and dissenting opinion.
[J-29-2017] [MO: Wecht, J.] - 9