Pittsburgh Palisades Park, LLC v. Commonwealth

Justice SAYLOR

dissenting.

Petitioners assert that the limited liability corporation is a bona fide contender for a license to conduct gaming activities, which requires a $50 million investment on its part, see 4 Pa.C.S. § 1209(a), but that a significant aspect of the regulatory scheme governing the application process and overseeing of gaming enterprises is unconstitutional. In my view, Petitioners’ averments are sufficient to warrant an evidentiary hearing; if Petitioners were able at such a hearing to substantiate an ability on the part of the corporation to meet the requirements to apply for a gaming license, and the likelihood that such application will be forthcoming at such time as applications are entertained, I would find the threshold requirements to pursue declaratory relief satisfied.

In this regard, there seems to me to be a widening tension between the policies underlying the Declaratory Judgment Act, which is to be liberally applied to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, see 42 Pa.C.S. § 7541(a), and a stringent application of the traditional standing criteria that entail dem*210onstration of a substantial, direct, and immediate interest in the outcome of litigation. See Majority Opinion, at 204-05, 888 A.2d at 660 (discussing these traditional requirements). In a seminal decision confirming the constitutionality of the original Declaratory Judgment Act, this Court observed that the enactment was intended to override the courts’ tendency to confine the availability of judicial redress to the adjudication of existing, immediate controversies. See Petition of Kariher, 284 Pa. 455, 463-64, 131 A. 265, 268 (1925). In particular, the Petition of Ranker Court deemphasized the immediacy requirement as applied in the declaratory judgment arena, see, e.g., id. at 463, 131 A. at 268 (“Again, in order to obtain a declaration, it is not required that an actual wrong should have been done, such as would give rise to an action for damages, and no wrong need be immediately threatened[.]”); id. at 465-66, 131 A. at 269 (discussing the established judicial function of declaring the law governing a given condition of facts “even though the action was started before damages were actually inflicted or before danger thereof was imminent”), indicating that the ripening seeds of a controversy may be enough to pursue declaratory relief. See id. at 471, 131 A. at 271.1 Indeed, the majority’s focus on the fact that Petitioners might benefit from the existing law in the event of a structural change relative to the Gaming Control Board, see Majority Opinion, at 207-09, 888 A.2d at 662, seems to me to be more speculative than the interest that Petitioners assert, particularly where the complained-of provisions of the Gaming Act apparently may impede their ability and/or willingness to *211obtain a license in the first instance (as could be developed and confirmed or dispelled upon an evidentiary hearing).

For the above reasons, I would direct the Commonwealth Court to serve as a special master and conduct an evidentiary hearing and issue proposed findings and conclusions relative to the factual underpinnings of Petitioners’ assertion of standing to challenge the Gaming Act, while retaining jurisdiction in this Court.

Finally, to the extent that the majority endorses a category of legislator standing separate and apart from citizen-taxpayer standing, see Majority Opinion, at 207-09, 888 A.2d at 662. I also have reservations concerning the breath of such a category. In this regard, I would note my agreement with the Commonwealth Court that no such special standing should be afforded solely by virtue of the fact that a legislator’s position did not prevail in the political branch. See Wilt v. Beal, 26 Pa.Cmwlth. 298, 305, 363 A.2d 876, 881 (1976).2

. I recognize that Petition of Kariher also contains some more restrictive language, see, e.g., Petition of Kariher, 284 Pa. at 472, 131 A. at 271 (indicating that "in a declaratory judgment proceeding the court will not decide future rights in anticipation of an event which may not happen”), but even this language was subject to qualification by the Court. See id. (clarifying that the restriction based on the assertion of future rights applies "unless special circumstances appear which warrant an immediate decision, as, for instance, where present rights depend on the declaration sought by plaintiff[.]”). Moreover, I acknowledge that subsequent decisions appear to have tightened the standing requirements in the declaratory judgment context since Petition of Kariher; my point here is that the courts have not looked back to reconcile the more restrictive approach with the recognized policies underlying the Declaratory Judgment Act.

. The present situation may qualify as one in which legislators’ voting power has been diluted, and thus, at least arguably may reside within the contemplation of existing case law touching on legislator standing. Cf. Zemprelli v. Daniels, 496 Pa. 247, 436 A.2d 1165, (1981) (discussing the standing of legislators in a quo warranto setting in terms of dilution of voting interests). The present case seems to me to be sufficiently unique, however, that I would withhold the conclusion as to whether future legislators would enjoy special standing to challenge a prior enactment curtailing their options on future legislative action, at least until after a fuller assessment of Petitioners' direct standing.