Pennsylvania Prison Society v. Commonwealth

KELLEY, Judge,

dissenting.

I respectfully dissent.

On November 4, 1997, the voters in this Commonwealth were presented with a ballot question regarding the amendment of Article IV, Section 9 of the Pennsylvania Constitution. All of the proposed changes contained in the ballot question related solely and exclusively to the provisions of Article IV, Sec*639tion 9 and the Board of Pardons. As a result, the amendment to the Pennsylvania Constitution adopted by the voters of Pennsylvania on November 4, 1997 does not violate the provisions of Article XI, Section 1 of that constitution. See Bergdoll v. Kane, 694 A.2d 1155 (Pa.Cmwlth.1997) (Dissenting Opinion by Pelligrini, J.) citing Andrews v. Governor of Maryland, 294 Md. 285, 449 A.2d 1144 (1982) and Hatcher v. Meredith, 295 Ky. 194, 173 S.W.2d 665 (1943).

In addition, it is clear that the Pennsylvania Attorney General’s plain English statement of the proposed amendment comports with section 201.1 of the Pennsylvania Election Code.1 The majority, quoting Lincoln Party v. General Assembly, 682 A.2d 1326 (Pa.Cmwlth.1996), correctly observes that the Attorney General is not required to provide an in-depth illustration of how a proposed amendment may affect the public. Rather, the Attorney General is only required to briefly describe the purpose, limitations and effects of the ballot question. 25 P.S. § 2621.1; Lincoln Party.

The full statement provided by the Attorney General reads as follows:

Statement of Attorney General Regarding Joint Resolution 1997-2
Changes in Board of Pardons Voting, Appointment Process and Composition
The purpose of the ballot question is to amend the Pennsylvania Constitution to add a provision concerning the recommendation that must be given by the Board of Pardons before the Governor can pardon or commute the sentence of an individual sentenced in a criminal case to death or life imprisonment and to change provisions regarding the process of appointing Board members and the composition of the Board membership.
The Pennsylvania Constitution now provides that in all criminal cases except impeachment, the Governor has the power to grant reprieves, commutation of sentences and pardons, but only on the recommendation in writing of a majority of the members of the Board of Pardons. The proposed amendment would require the unanimous recommendation of the Board before the Governor could pardon or commute the sentence of an individual sentenced to death or life imprisonment. The Constitution would continue to require only a majority vote of the Board to enable the Governor to grant a pardon or commute a sentence in a criminal case involving a sentence other than death or life imprisonment.
The Pennsylvania Constitution now provides that the members of the Board of Pardons are the Lieutenant Governor who is made Chairman, the Attorney General, and three members appointed by the Governor with the consent of two-thirds or a majority of the Pennsylvania Senate as provided by law. Of the three members appointed by the Governor, the Constitution now requires that one be an attorney, one be a penologist, and one be a doctor. The proposed amendment would eliminate the option of requiring the Governor’s appointments to be approved by two-thirds of the Senate, thus requiring appointments to be approved by only a majority of the Senate. The amendment would replace the attorney member of the Board with a crime victim member and would change the member described as a penologist to a member described as a corrections expert.
The effect of the ballot question would be to make it more difficult for an individual sentenced to death or life imprisonment to obtain a pardon or commutation of sentence, to ease the process for Senate approval of the Governor’s appointments to the Board of Pardons, and to ensure that crime victims are represented on the Board.

27 Pa.B. 3994 (1997). Contrary to the majority’s determination, based on this statement I would conclude, as we did in Lincoln Party, that the Attorney General fairly and fully complied with the requirements of section 201.1 of the Pennsylvania Election Code.

*640Based on the foregoing, I would conclude that neither the Pennsylvania Constitution nor the Pennsylvania Election Code was violated in the adoption of the amendment to Article IV, Section 9 of the Pennsylvania Constitution. Because the voters in Pennsylvania properly exercised their inalienable and indefeasible right to alter the basic form of their government, it is our duty to heed their instructions. Bergdoll, 694 A.2d at 1161-1162 (Dissenting Opinion by Kelley, J.). As a result, I would deny the motion for judgment on the pleadings filed by the Pennsylvania Prison Society et al., and grant the motion for judgment on the pleadings filed by the Commonwealth of Pennsylvania et al.

. Act of June 3, 1937, P.L. 1333, added by the Act of February 19, 1986, P.L. 29, as amended, 25 P.S. § 2621.1.