Stilp v. Commonwealth

OPINION BY

Judge SIMPSON.

In this original jurisdiction matter, a resident taxpayer challenges on constitutional grounds an amendment to Article XIV of The County Code,1 known as Act 57 of 2005,2 which in part allowed sitting district attorneys to convert from part-time to full-time status, with an accompanying increase in compensation. The General Assembly and the presiding officer of each house are named as Respondents.

Currently before the Court are Respondents’ preliminary objections to the Petition for Review filed by Gene Stilp, who is representing himself. For reasons more fully discussed below, we sustain the preliminary objection to standing and dismiss the suit.

I. Petition for Review

The Petition for Review was filed November 1, 2006, just before the legislative elections. The basic premise of this suit is that Act 57 allows district attorneys to convert from part-time to full-time status and receive an increase in compensation after election. Stilp avers that since Act 57 became effective, 31 district attorneys converted to full-time status and received an increase in compensation during then-term in office.

Stilp quotes Article III, Section 27 of the Pennsylvania Constitution, entitled *709“Changes in term of office or salary prohibited,” which provides: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” Pa. Const, art. Ill, § 27. He avers that by enabling a mid-term increase in district attorney compensation, Act 57 violates this constitutional provision. He asks for declarations that mid-term compensation increases pursuant to Act 57 are illegal and that repayment of any illegal compensation from affected district attorneys is required.

II. Preliminary Objections

Respondents seek dismissal of the suit on either of two bases: the General Assembly and its members are protected by legislative immunity pursuant to Article II, Section 15 of the Pennsylvania Constitution; 3 or Stilp lacks standing to challenge Act 57 because the amendment did not impact the district attorney in Dauphin County, where Stilp lives.

The rule is well settled that in ruling upon preliminary objections, the courts must accept as true all well-pleaded allegations of material facts as well as all of the inferences reasonably deducible from the facts. Stilp v. Com., 910 A.2d 775 (Pa.Cmwlth.2006) (Stilp 2006 (legislative benefits) ). For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party. Id.

During our review of the Petition we must be mindful of the presumption that the legislature does not intend to violate the Constitution, and the corollary that a party asserting the unconstitutionality of a legislative act bears a heavy burden of proof. Bible v. Dep’t of Labor & Indus., 548 Pa. 247, 696 A.2d 1149 (1997). A statute will only be declared unconstitutional if it clearly, palpably and plainly violates the Constitution. Ieropoli v. AC & S Corp., 577 Pa. 138, 842 A.2d 919 (2004).

III. Standing

A.

Respondents argue that Stilp is not particularly affected by Act 57 and must therefore rely on the doctrine of taxpayer standing. He fails to qualify under that doctrine, however, because he lives in a county with a full-time district attorney, and not in one of the 31 counties where a part-time district attorney chose to convert to full-time status as allowed by Act 57. Thus, Respondents argue, Stilp is not better suited than others to assert a challenge. Respondents go further and contend that granting taxpayer standing in this case would relax the standards to the point of being meaningless and would invite a virtual flood of future litigation.

In response, Stilp asserts that absent this lawsuit, Act 57 will go unchallenged. He contends that he waited for over a year, but no one in government or the private sector noticed or questioned the illegal mid-term pay raise. Further, he declares that his residency in a county with a full-time district attorney is irrelevant because state taxpayer monies are at *710issue: the state must reimburse the counties for a portion of district attorney salaries.

As to the argument that others are better suited to bring the challenge, Stilp reminds us that he challenged the General Assembly before and that he has been granted standing in similar actions. He submits that due to his ideals, his experience and his strong belief in the plain language of the Constitution, he is qualified to represent the common interests of like-minded citizens.

B.

Prior to judicial resolution of a dispute, an individual must as a threshold show that he has standing to bring the action. Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 888 A.2d 655 (2005). The traditional concept of standing focuses on the idea that a person who is not adversely impacted by the matter he seeks to challenge does not have standing to proceed with the court system’s dispute resolution process. Id. Pennsylvania courts do not render decisions in the abstract or offer purely advisory opinions; consistent therewith, the requirement of standing arises from the principle that judicial intervention is appropriate only when the underlying controversy is real and concrete. Id.

The leading Pennsylvania case on standing is Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). Our Supreme Court discussed the core concept, which is that a person who is not adversely affected in any way by the matter he seeks to challenge is not “aggrieved” thereby and has no standing to obtain a judicial resolution of his challenge. To establish an “aggrieved” status, a party must have a substantial interest, that is, there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. Also, an interest must be direct, which means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains. Further, the interest must be immediate and not a remote consequence of the judgment, a requirement addressing the nature of the causal connection.

Here, Stilp does not contend that Act 57 causes any discernible adverse effect to any of his interests other than the abstract interest of all citizens in having others comply with the law. Thus, it is clear Stilp does not enjoy standing under the traditional test.

C.

In Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d 918 (2006) (Stilp 2006 (pay raise)), our Supreme Court was asked whether Stilp enjoyed standing to challenge a statute which granted a pay raise to all state legislators, judges and some members of the executive branch. The Court considered an exception to the traditional standing requirements, taxpayer standing:

Under [Application of] Biester, [487 Pa. 438, 409 A.2d 848 (1979),] a.taxpayer has standing to challenge an act if: (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained-of matter are beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other persons are better suited to assert the claim.

Id. at 593-94, 905 A.2d at 950 (citations omitted). The Court decided Stilp enjoyed standing, stating in part as follows:

*711Lastly, there are no other persons better situated to assert the claim because all those directly and immediately affected by [the act in question] are beneficially affected ... and have not brought, and are not likely to bring, a cause of action in state court. This is especially so because [the act was repealed].

Id. at 594, 905 A.2d at 951 (footnote omitted).

The Supreme Court also discussed taxpayer standing in Pittsburgh Palisades, where potential applicants for slot machine gaming licenses raised constitutional challenges to a provision of a new gaming act. The provision required the Commonwealth to return huge sums of money to applicants if statutory provisions addressing the membership and function of the governing administrative agency were changed. With regard to the fifth factor of taxpayer standing, requiring no other persons be better situated to assert the claim, the Court concluded that others were better situated to assert a challenge. In particular, state legislators who might be dissuaded from amending the gaming act because of the requirement of returning large amounts of money were better situated to assert a challenge. As a result, the Court concluded that the potential applicant petitioners lacked standing.

D.

Similarly, here Stilp is not the best situated to assert a challenge to Act 57, and he therefore lacks taxpayer standing. First, it is uncontested that Stilp lives in a county where the district attorney’s employment status was unaffected by Act 57.

Second, there are others who are better situated than Stilp to assert the challenge. In particular, county commissioners, controllers, auditors or treasurers in any of the 31 counties in which the status of the district attorney changed after Act 57 would be the best suited to challenge the statute. Those county officers with responsibility for county finances would be detrimentally affected by the county’s share of increased compensation to be paid to another county officer, the district attorney. See Com. ex rel. Rubenstein v. Lawler, 48 D. & C.3d 644 (C.P.Bucks, 1988) (mandamus action by district attorney against county controller to require authorization of new salary resulting from change to full-time status).

As in Pittsburgh Palisades, the existence of other parties who do not stand to benefit from Act 57, who have a potential interest in challenging Act 57, and who, as a result of their status as county officers, appear to be better situated to assert a challenge, leads to the conclusion that Stilp fails to establish taxpayer standing.

E.

Stilp invokes his recent success in establishing taxpayer standing in several cases. Those cases, however, do not compel the same result here. Stilp 2006 (pay raise) is discussed above. It involved a pay raise for all state legislators and judges, including the state legislators and judges serving Stilp. Additionally, it involved a statute the repeal of which reduced the likelihood that anyone would raise a constitutional challenge to it. Neither of those circumstances is present in this case.

In Stilp v. Commonwealth, 898 A.2d 36 (Pa.Cmwlth.2006) (en banc) (Stilp 2006 (audit) ), Stilp brought an action to compel an audit of the legislature by the Auditor General. This Court concluded Stilp established taxpayer standing. Id. at 39, n. 7 (citing Consumer Party of Pa. v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986)). The issue in that case, however, *712impacted the entire Commonwealth equally.

Similarly, in Stilp 2006 (legislative benefits), Stilp sought a declaration that all state legislators had access to things that benefit them beyond those items specifically permitted by the Pennsylvania Constitution. The challenge involved all state legislators, including those serving Stilp. Based on Stilp 2006 (audit) and Stilp 2006 (pay raise), we held Stilp established taxpayer standing.

Unlike the issues raised in the recent Stilp cases just reviewed, Act 57 operates in a different manner. Act 57 does not mandate any change in status by any district attorney after his or her election. The only automatic change in status will occur on January 2, 2012, more than a full election cycle in the future, when the district attorneys in all counties shall become full-time. Section 2 of Act 57, 16 P.S. § 1401(m). In the six years between Act 57’s enactment and 2012, part-time district attorneys are permitted to change their status. Thus, Act 57 does not operate on all district attorneys, and it does not operate on the district attorney serving Stilp. Also, Act 57 does not impact the entire Commonwealth equally. Further, the challenged provisions of Act 57 require affirmative action by a party outside state government before they become effective. Because of the substantial differences between the operation of Act 57 and the legislative actions challenged in the other Stilp cases, we conclude that those cases are inapposite on the standing issue here.4

IV. Summary

In summary, Stilp does not attempt to establish traditional standing. We hold that he fails to establish taxpayer standing because he cannot show that no other persons are better situated to bring the challenge. Accordingly, we sustain the preliminary objection raising standing, and we dismiss his Petition for Review. Because of our holding on the standing issue, we need not decide whether absolute legislative immunity bars the suit.

Judge McGINLEY did not participate in the decision in this case. Judge SMITH-RIBNER did not participate in the decision in this case. Judge COHN JUBELIRER did not participate in the decision in this case. Judge LEAVITT did not participate in the decision in this case.

ORDER

AND NOW, this 3rd day of July, 2007, Respondent’s preliminary objection raising standing is SUSTAINED, and the Petition for Review is DISMISSED.

. Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §§ 1401-1441.

. Act of July 14, 2005, P.L. 312.

. Article II, Section 15 of the Pennsylvania Constitution, entitled “Privileges of members,” provides:

The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.

Pa. Const, art. II, § 15.

. We acknowledge another pending matter initiated by Stilp, Stilp v. O’Brien, 8 M.D. 2007, in which a constitutional challenge is raised to a recent amendment to the Liquor Code, Act 155 of 2006, which permits free drinks to be served at gaming locations. Preliminary objections to Ship's suit include a challenge to Ship’s taxpayer standing.

The amending statute in that action operates equally throughout the Commonwealth, including gaming locations in Dauphin County, where Stilp lives. For the reasons discussed above with regard to Ship's other cases, the facts in Stilp v. O’Brien do not compel a conclusion that Stilp deserves taxpayer standing in this case.