Leach v. Commonwealth

CONCURRING AND DISSENTING OPINION BY

Judge PATRICIA A. McCullough.

Perceiving a dilemma in the case law and constitutional principles, I concur in part and dissent in part. •

Act 192 of 2014 is ' enacted legislation consisting of four sections that amend the Crimes Code: (1) the legislation started out by creating the new crime of theft by secondary metal, listing its eleménts and sentencing grade; (2) this new crime of theft by secondary metal-was then included as a sub-crime (apparently a non-merger offense for double jeopardy purposes) within the already-established crime' of criminal trespass; (3) the legislature also amended the Pennsylvania Uniform Firearms Act (UFA) to insert a provision obligating the state police- to report information that a person does not have the lawful right to possess a firearm; and, (4) the legislature revised the UFA to allow citizens who lawfully possess a firearm to anticipatorily challenge local laws that seek to fine or otherwise punish them— even criminally — for conduct that the state legislature has unambiguously declared to be the lawful possession of a.firearm. See Dillon v. City of Erie, 83 A.3d 467, 476 (Pa.Cmwlth.2014) (en banc) (Brobson, J., dissenting, joined by Leavitt, J., and McCullough, J.); National Rifle Association v. City of Pittsburgh, 999 A.2d 1256, 1260-63 (Pa.Cmwlth.2010) (Brobson, J., dissenting) (concluding that our common law doctrine of standing has served as an “insurmountable obstacle to pre-enforcement review of criminal ordinances” that regulate firearm possession).1

*1290Because there appears to be only one case that clearly addresses whether amending the Crimes Code is a permissible subject under Article III, section 3 of the Pennsylvania Constitution, I respectfully disagree with the Majority that Act 192 violates the single-subject rule. On materially indistinguishable facts, this Court, sitting en banc, held in Ritter v. Commonwealth, 120 Pa.Cmwlth. 374, 548 A.2d 1317 (en banc), aff'd per curiam, 521 Pa. 536, 557 A.2d 1064 (1989), that the single-subject rule was not violated where amendments to the Crimes Code were made: “providing for rights of a district attorney in litigation involving prisoners; providing additional penalties for underage drinking and sale of alcohol to minors; providing additional penalties for drug trafficking to minors; providing penalties for the scattering of rubbish; and regulating matters relating to the performance and funding of abortions.” Id. at 1318. We reasoned: “Despite the disparity in the types of acts described for which sanctions are imposed, we have no problem in concluding that [the law], as enacted, embraces a single subject — ie., amendments to the Penal Code.” Id. at 1321. The Ritter Court further explained that the single-subject rule was not violated “since all of the amendments relate to proscribed acts under the Penal Code. To find otherwise would make unified amendments to codification of the law impossible.” Id.

Here, the legislature created a new criminal offense (and made it a sub-crime) and amended the UFA to further define and effectuate its distinction between the unlawful versus lawful possession of a firearm; as in Ritter, these amendments all relate to proscribed acts under the Crimes Code. I believe the Crimes Code is particular in nature and submit that regulating criminal activity is a legislative topic that encompasses much more than defining the basic elements of a crime and the sentence to be imposed. Indeed, a criminal conviction often carries with it collateral consequences for the convicted, along with administrative tasks and duties for the agencies and affected citizens; e.g., Megan’s Law registration and reporting;2 parental termination; deportation; loss of the right to vote; loss of driving privileges; loss of the right to lawfully possess a firearm; and restoration and preservation of the right to lawfully possess a firearm.

Following our decision in Ritter, I would conclude that Act 192 possesses a unifying subject for constitutional purposes. Notably, our Supreme Court affirmed Ritter in a per curiam order, no intervening precedent has overruled Ritter,3 and that case remains good law.

As to the Article III, section 1 challenge, I agree with the Majority that pursuant to Marcavage v. Rendell, 936 A.2d 188 (Pa.Cmwlth.2007) (en banc), aff'd per curiam with reasoning, 597 Pa. 371, 951 A.2d 345 (2008), Act 192 violates the original purpose rule. In that case, this Court, also sitting en banc, analyzed a legislative *1291amendment to the Crimes Code that marked a shift (and abandonment) from the original purpose of defining the criminal offense of agriculture crop destruction to the sole purpose of re-defining the crime of ethnic intimidation. We held:

The original purpose of [the law], viewed in reasonably broad terms, was to criminalize crop destruction. As ultimately enacted, [the law] expanded the classification of persons protected under the offense of ethnic intimidation.... The original version and final version of [the law] regulate vastly different activities, albeit under the broad heading of crime. However, to conclude that the General Assembly could initiate a piece a [sic] legislation in the context of the Crimes Code and rely upon that concept as a unifying justification for amendments to bills under the Crimes Code that contain no nexus to the conduct to which the original legislation was directed would stretch the Supreme Court’s meaning of ‘reasonably broad terms.’

Marcavage, 936 A.2d at 193.

Our decision in Marcavage, which only addressed the original purpose issue, was affirmed per curiam by the Supreme Court, explicitly adopting this Court’s rationale. However, this Court in Ritter addressed an original purpose challenge in addition to the single-subject challenge and concluded, directly opposite to Marca-vage, that the original purpose of the law, that is, amending the Crimes Code, was constitutionally maintained. See Ritter, 548 A.2d at 1320.

Despite this apparent conflict in the ease law, I believe that Marcavage is entitled to greater precedential weight on the issue of original purpose and is binding because the Supreme Court affirmed on our rationale in that case while Ritter was summarily affirmed per curiam. See Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898, 904 (1996) (discussing the prece-dential effect of per curiam orders issued by the Supreme Court).

There remains, however, the question of whether there is a legally conceptual basis to differentiate between a single-subject and an original purpose constitutional challenge. If an original purpose is lost along the legislative way, then, too, must be its unifying subject, and vice versa. As the scrambled egg is both white and yolk, the purpose and subject of legislation are one and the same, and when one leaves the picture so must the other.

In light of the above, it would appear that the legislature’s ability to amend the Crimes Code in a constitutional manner is unresolved. The concept of “crimes,” once a creature of common law, has been codified in the Crimes Code and probably represents the “bread and butter” of our legislature’s work, constantly necessitating minor revisions and major amendments. Under the Majority’s analysis, it is unclear how our legislature can amend the Crimes Code to comport with both the single-subject and original purpose rules: just amending one crime at a time; just amending the same type of crimes (e.g., property offenses, offenses against the person, etc.); just amending the penalties and/or the elements of all crimes; just creating new crimes; just amending collateral measures for certain and/or all kinds of crimes; or some combination of the above? Obviously, the legislature needs a degree of flexibility to amend the Crimes Code in an efficient and effective manner, especially considering the daily stream of judicial opinions interpreting, applying, and entertaining constitutional challenges toits provisions.

For these reasons, I respectfully concur in part and dissent in part.

. Ostensibly, this last section was also prompted due to clear legislative preemption in the area of firearm possession and the enactment by local bodies of ordinances that penalize what the state legislature and the courts have consistently said is lawful conduct throughout the entire Commonwealth. See, e.g., Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996); Dillon v. City of Erie, 83 A.3d 467 (Pa.Cmwlth.2014) (en banc); National Rifle Association v. City of Philadelphia, 977 A.2d 78, 81-82 (Pa.Cmwlth.2009) (en banc); Clarke v. House of Representatives, 957 A.2d 361 (Pa.Cmwlth.2008); Schneck v. City *1290of Philadelphia, 34 Pa.Cmwlth. 96, 383 A.2d 227 (1978).

In essence, our legislature enacted this provision to preserve the integrity of its own Crimes Code and what it has designated to be the lawful possession of a firearm. In this regard, I disagree with the Majority that this section “creates a civil cause of action,” (Maj. op. at 1283, 1285), and propose instead that the section is inexorably related to the scheme of the UFA and the Crimes Code.

. Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa.C.S. §§ 9799.10-9799.41.

. In City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 587-88 (2003), our Supreme Court criticized certain decisions from this Court dealing with the single-subject rule as being too deferential toward the legislature. Ritter was not one of those cases.