Bergdoll v. Kane

PELLEGRINI, Judge,

dissenting.

I respectfully dissent from the majority’s holding that the ballot question passed by voters at the November 1995 election was unconstitutional as it presented two separate questions and infringed upon the Supreme Court’s procedural powers.

The issue is whether a ballot question to amend Article I, Section 9 of the Pennsylvania Constitution is violative of the Pennsylvania Constitution.1 Article I, Section 9, prior to the ballot question, had read:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or information, a speedy public trial by an impartial jury of this vicinage

Striking down a trial court’s allowance of child testimony via closed circuit television, our Supreme Court interpreted Article I, Section 9 to ensure an accused with the right to meet a witness face to face. Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991). In Ludwig, a child victim was to testify against the man who had allegedly sexually abused her. At the preliminary hearing, she froze and testified that she couldn’t remember what had happened. Therefore, the trial court permitted her to testify via closed circuit television at both a second preliminary hearing and at the trial. The actor was subsequently convicted and appealed, contending that the use of closed circuit television violated his constitutional right to confront his accuser guaranteed by both the Sixth Amendment to the United States Constitution, as well as Article I, Sec*1160tion 9 of our State Constitution. Our Supreme Court recognized that while Article I, Section 9 was based on the Sixth Amendment of the United States Constitution providing that a defendant in a criminal case “shall enjoy the right ... to be confronted with the witnesses against him,” that Article I, Section 9 was more restrictive than its federal counterpart because it required the confrontation to be “face to face”. Id. 527 Pa. at 476, 594 A.2d at 288.

To change the “face to face” requirement of Article I, Section 9, a ballot question was proposed and was put on the November 1995 ballot and presented to the voters. That question read:

Shall the Pennsylvania Constitution be amended to provide (1) that a person accused of a crime has the right to be “confronted with the witnesses against him,” instead of the right to “meet the witnesses face to face,” and (2) that the General Assembly may enact laws regarding the manner by which children may testify in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television?

Because the ballot question was passed by a majority of the electorate, Article I, Section 9 of the Constitution now reads:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or information, a speedy public trial by an impartial jury of this vicinage ... Notwithstanding the provisions of this section, the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed circuit televisions.

Petitioners contend that the ballot question and its subsequent passage violated Article XI, Section 1 of the Constitution which provides that “[w]hen two or more amendments shall be submitted they shall be voted upon separately” because it really constitutes two proposed amendments, one that amended Article I, Section 9, and also one that implicitly amends Article Y, Section 10(c) in that it affected the Supreme Court’s procedural right to control the manner in which children may testify in criminal proceedings. Article Y, Section 10(c) provides:

The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are not consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant...

While I agree that if two or more unrelated propositions are submitted as one amendment, then Article XI, Section 1 would be violated, I believe that only one change was made here. Though Pennsylvania Courts have not yet faced this issue, we have faced the similar issue of whether a bill containing more than a single subject violates Article III, Section 3, which restricts the content of a bill to a single subject. In Pennsylvania AFL-CIO by George v. Commonwealth, 683 A.2d 691 (Pa.Cmwlth.1996), Judge Colins, in single-judge opinion, held that where substantive legislation is involved, a more expansive reading of the single subject clause has generally been applied. “This is so because the ‘purpose’ of substantive legislation is not constitutionally defined, but rather, ... is normally left to the discretion of the legislature to define.” See also, Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986).

While not yet considered in Pennsylvania, other states have held that a single constitutional amendment may cover several propositions if they are not distinct or essentially unrelated. For instance, in Hatcher v. Meredith, 295 Ky. 194, 173 S.W.2d 665 (1943), the Supreme Court of Kentucky held that so long as all parts of the amendment are germane to the accomplishment of a single objective, and all are legitimately connected to one subject, then the proposed amendment is still proper. Id.

And, in Andrews v. Governor of Maryland, 294 Md. 285, 449 A.2d 1144 (1982), the Maryland Court of Appeals considered a separate *1161vote requirement almost identical to Pennsylvania’s. That requirement, embodied in Article XIV, Section 1 of the Maryland Constitution, provides: “[W]hen two or more amendments shall be submitted ... to the voters of this state at the same election, they shall be so submitted as that each amendment shall be voted on separately.” In determining whether the dual amendment of one chapter regarding the restructuring of the court system, and at the same time, another chapter regarding the right of removal, violated the separate vote requirement, the court stated:

[T]he single subject and separate vote provisions of Article XIV, Section 1 are constitutional constraints on the legislature when proposing amendments to the Constitution. The provision, viewed as a whole, is intended to require a single amendment to deal with a single subject which may be ratified or rejected by a single vote. If the proposed changes deal with different or dissimilar subjects and seek to reach different objectives which require amendment, then the legislature must submit these proposals to the electorate so as to allow the electors to vote upon each separately. However, when two or more amendments dealing with the same subject are so functionally interrelated that they may have been submitted as one amendment, but, for purposes of highlighting their significance and to avoid confusion of the electorate, are set out individually, and when the connection and interdependence of such amendments are emphasized by making the passage of one contingent on the passage of the other to the effect that the proposals constitute a consistent and workable whole then, in such ease, we hold that Article XIV, Section 1 requiring a separate vote on each amendment has not been violated. The legislature is entrusted with wide discretion in proposing amendments to the Constitution and when it does so to make obvious possible hidden side effects and to promote public awareness, we think it well within its constitutional prerogative.

Id., 294 Md. 285, 297, 449 A.2d 1144, 1150.

Applying the rationale of the Pennsylvania law relating to the single clause requirement of bills, and of other states considering their analogous single vote requirements, I believe that the question posed to the electorate was proper. Even though the proposition in the instant matter was framed in two parts, both of those parts relate to the accomplishment of a single objective — the amendment of the right to confrontation, in particular, as it relates to child testimony. Though provisions of a constitution regarding its own amendment are to be narrowly construed, I do not believe that construction should be so restrictive as to require that every element to any change in amendment be separately set forth and voted upon. Because the ballot question only amends Article I, Section 9, I would hold that it does not violate Article XI, Section 1 of the Pennsylvania Constitution, prohibiting two amendments in the same question.

KELLEY and LEADBETTER, JJ., join in this dissenting opinion.

. On October 27, 1995, John G. Bergdoll, K. Robin Davis and Gerald C. Grimaud (Petitioners) filed an “Application for Leave to file Complaint in Quo Warranto” in the Pennsylvania Supreme Court, in which they sought to enjoin the Secretary of the Commonwealth from placing a proposed Amendment to Article I, Section 9 of the Pennsylvania Constitution on the November 7, 1995 ballot. The Supreme Court transferred the matter to our Court, and a hearing was held on November 2, 1995, at which the Pennsylvania Bar Association (PBA) was granted its application to intervene. Also at that hearing, we denied Petitioners' request for preliminary injunc-tive relief. The Supreme Court affirmed that determination, and on November 7, 1995, a majority of the electorate voted affirmatively on the amendment question. Petitioners subsequently filed an amended complaint, and the Secretary filed an answer and new matter to which Petitioners responded. Currently before us are the parties' cross motions for judgment on the pleadings or summary judgment.