[J-50-2022] [MO: Todd, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JASMINE WEEKS, ARNELL HOWARD, : No. 22 EAP 2021
PATRICIA SHALLICK, INDIVIDUALLY AND :
ON BEHALF OF ALL OTHERS SIMILARLY : Appeal from the order of the
SITUATED, : Commonwealth Court dated May 13,
: 2021 at No. 409 MD 2019
Appellants :
: ARGUED: September 14, 2022
:
v. :
:
:
DEPARTMENT OF HUMAN SERVICES OF :
THE COMMONWEALTH OF :
PENNSYLVANIA, :
:
Appellee :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: September 28, 2023
Because I would find that Act 12 violates both the “original purpose” rule and the
“single subject” rule, I respectfully dissent from the Majority’s holding to the contrary.
Appellants have a difficult burden to overcome, as “acts passed by the General
Assembly are strongly presumed to be constitutional, including the manner in which they
were passed.” Commonwealth v. Neiman, 84 A.3d 603, 612 (Pa. 2013). While the
burden is certainly high, it can be overcome, as evidenced by our prior case law. 1 In my
1 See, e.g., City of Phila v. Commonwealth, 838 A.2d 566 (Pa. 2003) (rejecting the
proposed subject of “municipalities” as overly broad in violation of Article III, Section 3);
Neiman, 84 A.3d 603 (Pa. 2013) (rejecting the overly broad proposed subjects of “refining
civil remedies or relief” or “judicial remedies and sanctions”); Pa. State Ass’n of Jury
Comm’rs v. Commonwealth, 64 A.3d 611 (Pa. 2013) (rejecting the proposed subjects
“amendments to the county code” or “powers of county commissioners” as
(continued…)
view, the Majority’s proposed subject 2 and purpose 3 connecting the patently disparate
provisions of Act 12 are unreasonably broad, and thus undermine the purpose of Article
III, Sections 1 and 3. See Washington v. Dep’t of Pub. Welfare, 188 A.3d 1135, 1152
(Pa. 2018) (“[A] hypothetical subject cannot be unduly expansive, lest the purpose of the
constitutional provision be defeated.”). However, even if I accepted the Majority’s
proposed topics, not all of Act 12’s provisions could readily be considered germane under
them. Regardless of whether the topics are unduly expansive or cannot satisfy the
germaneness inquiry, I find that the Majority’s holding condones the logrolling 4 which
Article III, Sections 1 and 3 were intended to prevent.
To mirror the Majority’s discussion, I begin with the single subject rule. Article III,
Section 3, otherwise known as “the single subject rule,” provides: “No bill shall be passed
containing more than one subject, which shall be clearly expressed in its title, except a
general appropriation bill or a bill codifying or compiling the law or a part thereof.” PA.
CONST. art. III, § 3. To test compliance with this standard, we engage in a “germaneness”
inquiry, pertinent to both Section 1 and Section 3 analyses. Washington, 188 A.3d at
1151 n.33. In conducting this inquiry, a court determines whether the subjects of a
legislative enactment are germane, i.e., whether they “have a nexus to a common
unconstitutional under Article III, Section 3); Leach v. Commonwealth, 141 A.3d 426, 433
(Pa. 2016) (rejecting the proposed subject of “regulations of firearms” or “ability to own a
firearm” as unconstitutional).
2 The Majority concludes that the provisions of Act 12 all “fall within the unifying single
subject of ‘the provisions of benefits pertaining to the basic necessities of life for low-
income individuals.’” Majority Op. at 30.
3According to the Majority, the original bill’s purpose was to “eliminate Cash Assistance
while favoring health-specific benefits for low-income individuals.” Majority Op. at 37.
4 “Logrolling is the practice of embracing in one bill several distinct matters, none of which
could singly obtain the assent of the legislature, and procuring its passage by combining
the minorities who favored the individual matters to form a majority that would adopt them
all.” Pennsylvanians Against Gambling Expansion, Inc. v. Commonwealth, 877 A.2d 383,
394 n.7 (Pa. 2005) (“PAGE”) (internal quotation marks omitted).
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purpose.” Neiman, 84 A.3d at 612. In other words, it must be determined whether the
“various components of the enactment are part of a unifying scheme to accomplish a
single purpose.” Id. (internal quotations and citation omitted). In acknowledging the
realities of the legislative process, “a reviewing court may hypothesize a ‘reasonably
broad’ unifying subject; however, such a hypothetical subject cannot be unduly
expansive, lest the purpose of the constitutional provision be defeated.” Washington, 188
A.3d at 1152.
Act 12 contains provisions that achieved the following: eliminated the General
Assistance Cash Assistance program (“Cash Assistance”); maintained the status quo for
the Medical Assistance program (“Medical Assistance”); 5 reauthorized Nursing Facility
Incentive Payments; 6 reauthorized and increased revenue-raising tax for hospitals in
Philadelphia (“Philadelphia Hospital Assessment”), which further allowed municipalities
to use their portion of revenues generated by that assessment on “public health
programs;” and revised the Statewide Quality Care Assessment.
States and the federal government jointly finance Medicaid. GOV’T ACCOUNTABILITY
OFF., Report: CMS Needs More Information of States’ Financing and Payment
Arrangements to Improve Oversight, at 1 (2020). States, including Pennsylvania, finance
their share from general funds and other sources, including taxes on healthcare providers
and funds from local governments. Id. By relying on healthcare provider taxes and local
government funds, the Commonwealth is able to draw down substantial sums in federal
matching funds. Id. at 1-2. Thus, the share of the Medicaid payments for the
5 Act 12 achieved this by removing any reference to Cash Assistance under Medical
Assistance’s eligibility requirements and from the definition of “General Assistance.”
6 These annual incentive payments are paid to nursing facilities that have a certain
percentage of patients on Medical Assistance. DHS, Disproportionate Share Incentive
Payments, https://www.dhs.pa.gov/providers/Providers/Pages/Disproportionate-Share-
Incentive-Payments.aspx (last visited June 30, 2023).
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Commonwealth decreases, thereby theoretically increasing the payments made by the
federal government. 7
The Statewide Quality Care Assessment is one type of tax referenced above that
goes towards financing the Commonwealth’s obligations under the jointly-funded
Medicaid program. 62 P.S. § 803-G(a) (“The assessment authorized under this article …
may be collected only to the extent and for the periods that the secretary determines that
revenues generated by the assessment will qualify as the State share of the program
expenditures eligible for Federal financial participation.”). The Statewide Quality Care
Assessment taxes the net inpatient revenue of “[a]ll inpatient acute general and
freestanding rehabilitation hospitals located within the Commonwealth[.]” DHS,
Statewide Hospital Quality Care Assessment Frequently Asked Questions, at 1 (2016).
The Philadelphia Hospital Assessment permits Philadelphia to levy taxes on
“General Acute Care Hospital[s]” and “High Volume Medicaid Hospital[s].” Act of June
28, 2019, P.L. 43, No. 12, § 6. The city then collects the funds generated by the
assessment and remits a portion of the funds to the Commonwealth for the purpose of
“assuring that medical assistance recipients have access to hospital and healthcare
services,” 62 P.S. § 802-E(a). The city is then authorized to retain funds to recoup the
cost of administration of the assessment and the costs of operating public health clinics
and public health programs. 8
7 Interestingly, the United States Government Accountability Office posits that this type
of arrangement results in some providers receiving a smaller net Medicaid payment
overall once the provider taxes they contributed are taken into account. GOV’T
ACCOUNTABILITY OFF., Report: CMS Needs More Information of States’ Financing and
Payment Arrangements to Improve Oversight, at 25-26 (2020).
8 Specifically, Act 12 provides:
Upon collection of the funds generated by the assessment
authorized under this article, the municipality shall remit a
portion of the funds to the Commonwealth for the purposes
(continued…)
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The provisions discussed above involve revenue generation and spending, not
limited to Medicaid recipients, and they comprise the bulk of Act 12’s content. The
Majority considers the common purpose to be that all of Act 12’s provisions “relate to
benefits pertaining to the basic necessities of life to low-income individuals.” Majority Op.
at 29 (citing Weeks v. Dep’t of Hum. Servs., 222 A.3d 722, 730 (Pa. 2019) (“Weeks II”)).
As previously noted, 9 this Court has found similarly expansive proposed single-subjects
overly broad under Article III, Section 3. For instance, in City of Philadelphia, the
challenged legislation brought about several changes to local governance and related
administrative matters and altered certain aspects of the administration of the
Pennsylvania Convention Center. City of Philadelphia, 838 A.2d at 571. The
Commonwealth proposed that the single subject uniting all of the provisions to be
“municipalities.” Id. at 589. We found such a proposed subject overbroad, noting, inter
alia, that “municipalities” was the subject of an entire Title of the Pennsylvania
Consolidated Statutes. Id. However, this Court also reasoned that even if we had
accepted the broad overarching topic to be “municipalities,” we still could not find that all
of the provisions were germane to that topic; particularly, the provisions that impacted the
Convention Center. Id. at 589-90. Similarly here, the proposed single subject (i.e., “the
provisions of benefits pertaining to the basic necessities of life for low-income individuals”)
is essentially the subject of an entire Title of the Pennsylvania Consolidated Statute, Title
set forth under section 802-E, except that the municipality
may retain funds in an amount necessary to reimburse it for
its reasonable costs in the administration and collection of the
assessment and to fund a portion of its costs of operating
public health clinics and public health programs as set forth in
an agreement to be entered into between the municipality and
the Commonwealth acting through the secretary.
Act of June 28, 2019, P.L. 43, No. 12, § 7.
9 See supra note 1.
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67 – Public Welfare. As in City of Philadelphia, even if the proposed overreaching topic
was not overbroad, not all of Act 12’s provisions are germane to that topic, particularly
the revenue generating assessments that are used broadly for public health programs.
In Neiman, we found a bill that amended sex offender registration provisions,
deficiency judgment procedures, county park police jurisdiction, and the statute of
limitations for asbestos claims violated Section 3’s single subject rule. Neiman, 84 A.3d
at 610. The Commonwealth proposed the single subject to be “refining civil remedies,”
while the General Assembly argued that all provisions related to the “single subject of
judicial remedies and sanctions.” Id. The Neiman Court found both proposals to be “far
too expansive[,]” as such subjects could be virtually boundless as they could encompass
“any civil court proceeding” and “any power of the judiciary” to order payment in any civil
matter. Id. at 613 (emphasis in original). Even in considering the facially disparate
provisions at issue in Neiman, we could find no reasonable focus to connect them. Id.
Here, the Majority’s proposed unifying subject is also virtually boundless since any
enactment by the Legislature benefits the public which necessarily includes low-income
individuals.
In Leach we found that a bill that eliminated municipalities’ right to regulate firearms
and amended certain crimes totally unrelated to firearms was in violation of Section 3. In
that case, the legislators contended that all provisions fit under the topic of “revising the
Crimes Code.” We determined that this proposed subject was too broad as it could
capture anything in the Crimes Code including, inter alia, crimes, defenses, penalties,
victims’ rights, and civil penalties. Leach, 141 A.3d at 434. Moreover, we found that the
legislators’ alternative theory—“Crimes Code amendments involving the regulation of
firearms or the ability to own a firearm”—was similarly in violation of Section 3, as there
was no way to relate regulation of firearms with the other crimes amended by the bill. Id.
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The provisions of Act 12 and the proposed unifying subject suffer from the same defect
because it can capture virtually any topic related to low-income individuals; but even
despite this breadth, the topics are not all germane to the proposed subject.
In an attempt to reconcile its holdings, the Majority asserts that its proposed single
subject—“benefits pertaining to the basic necessities of life to low-income individuals”—
is “far narrower” than those proposed in City of Philadelphia and Neiman. Majority Op. at
30-31. Respectfully, our case law demonstrates otherwise. The Majority suggests that
the challenged legislation in those previous cases all violated Section 3 solely on the basis
that they contained such disparate provisions that they could not possibly be unified under
a single subject. Id. at 31. However, in most of these cases, we reasoned that the
proposed topics themselves could cover all the provisions contained therein by virtue of
an unreasonably broad topic, but we found them defective anyway. 10
Based on the Majority’s rationale, its proposed single subject creates such a
boundless category that it defeats the purpose of Section 3. Take, for instance, the
provision of Act 12 that explicitly permits municipalities to retain taxes to sponsor public
health programs. 11 Neither the parties nor the Majority discount that this portion of the
Act benefits the public-at-large. However, the Majority, with no explanation, credits DHS’s
assertion that these are “ancillary benefits to the populous at large” that “still fall within
10 See, e.g., City of Philadelphia, 838 A.2d at 589 (“[A]s virtually all of local government
is a ‘municipality,’ we find that proposed subject too broad to quality for single-subject
status[.]”); Neiman, 84 A.3d at 613 (finding the proposed subjects “far too expansive …
as such subjects are virtually boundless”).
11 As the Majority recognizes, these public health programs could include “educational
programs to reduce tobacco use and obesity; air pollution monitoring; enforcement of
lead-free rental requirements; programs to promote immunization; water quality
programs; childhood literacy programs; and the provision of care services in
neighborhood health centers[.]” Majority Op. at 30. Such programs, according to
Appellants, could also include “restaurant and retail food inspection, air and water quality,
animal control, [and] inspection of barber and beauty establishments[.]” Appellants’ Brief
at 35.
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the unifying single subject of ‘the provision of benefits pertaining to the basic necessities
of life for low-income individuals.’” 12 Majority Op. at 30; see also DHS’s Brief at 36 (“[T]he
ancillary benefits to the public-at-large do not render Act 12 unconstitutional.”). Based on
this reasoning, virtually any legislative act focused on benefitting the general public could
fit into the subject of “the provision of benefits pertaining to the basic necessities of life for
low-income individuals” so long as low-income individuals are involved in some capacity.
This is no different from City of Philadelphia’s boundless topic of “municipalities” or
Neiman’s subjects of “refining civil remedies” or “judicial remedies and sanctions.” These
subjects, including the Majority’s proposal, all capture far more than is reasonable for one
piece of legislation. As relevant here, the Majority’s subject could capture any public
program whatsoever since by definition, low-income individuals would be involved.13
Neiman, 84 A.3d at 613. To condone such a subject undermines the purpose Section 3.
12 Although Justice Dougherty’s Concurring Opinion offers an explanation as to how the
statute could be construed narrowly so that the “public health programs” funded by the
Philadelphia Hospital Assessment are solely directed to benefitting low-income
individuals, see Concurring Op. at 2-3, I do not believe the statutory language supports
the conclusion. It is true that Section 802-E provides that the assessment generates the
funding “for the purpose of assuring that medical assistance recipients have access to
hospital and other health care services.” 61 P.S. 802-E(a). However, Section 804-E
states that the funds generated by the Philadelphia Hospital Assessment are remitted to
the Commonwealth for “the purpose set forth under [S]ection 802-E, except” the
municipality may retain those funds to reimburse themselves for costs related to
administering and collecting the assessment and a portion of those funds may be used
for the operation of “public health clinics and public health programs as set forth in an
agreement to be entered into between the municipality and the Commonwealth[.]” Id. §
804-E(a). Accordingly, while I agree that some of the funds generated for the hospital
assessment are statutorily prescribed for the purpose of benefiting medical assistance
recipients by funding certain healthcare providers, based on the text of Section 804-E,
the funding of “public health programs” is likewise authorized and there is no requirement
that they exclusively benefit low-income individuals. Indeed, DHS agrees that the benefits
will inure to the pubic-at-large.
13 Under the Majority’s tenuous rationale, public school funding would likewise fit within
its unduly expansive subject because there are children from low-income families that
attend public schools. Likewise, low-income families use highways and benefit from
(continued…)
[J-50-2022] [MO: Todd, C.J.] - 8
Despite the breadth of the Majority’s proposed subject, not all of Act 12’s provisions
could be deemed germane to the subject of “the provisions of benefits pertaining to the
basic necessities of life for low-income individuals.” Even if the Statewide Quality Care
Assessment could be squeezed into the Majority’s proposed definition, 14 the Philadelphia
Hospital Assessment specifically authorizes funding the cost of public health programs
and therefore, it cannot be germane to the Majority’s proposed subject. Even one outlier
provision is sufficient to demonstrate a violation of the single subject rule. See, e.g., City
of Philadelphia, 838 A.2d at 589-90 (reasoning that, in addition to the proposed subject
being too broad, the bill violated Section 3 because its provision relating to the change in
composition of the Pennsylvania Convention Center Authority’s governing board was not
germane to the proposed topic). Again, neither the Majority nor DHS disagree that such
a provision benefits the public-at-large. Majority Op. at 30; DHS’s Brief at 36. If
designating such consequence as “ancillary” circumvents the lack of germaneness to the
Majority’s proposed subject, then we no longer have a germaneness requirement. No
explanation is given as to how the provision of unspecified public health programs
specifically benefits low-income individuals when it indisputably benefits the general
public. It is equally correct to say that low-income individuals are the recipients of ancillary
benefits under this provision. Accordingly, I see no way that Act 12 can survive under the
Majority’s proposed subject.
In a similar vein, the “original purpose” rule, as set forth in Article III, Section 1,
provides: “No law shall be passed except by bill, and no bill shall be altered or amended,
on its passage through either House, as to change its original purpose.” PA. CONST. art.
improvements to water and sewer facilities and air quality to name a few areas within the
Legislature’s purview that would fit within the Majority’s proposed single subject.
14 The funds generated by the Statewide Quality Care Assessment apply to the state’s
share of Medicaid funding that would otherwise be contributed from the general fund,
thereby allowing funding in other areas not uniquely benefitting low-income individuals.
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III, § 1. The constitutionality of a legislative act challenged under Section 1 is evaluated
under a two-prong test:
First, the court will consider the original purpose of the
legislation and compare it to the final purpose and determine
whether there has been an alteration or amendment so as to
change the original purpose. Second, a court will consider,
whether in its final form, the title and contents of the bill are
deceptive.
PAGE, 877 A.2d at 408-09. In making this determination, courts engage in the same
“germaneness” inquiry as conducted under the single subject rule analysis. Courts then
determine whether “the amendments to the bill added during the legislative process are
germane to and do not change the general subject of the bill.” Washington, 188 A.3d at
1151 (citing Stilp, 905 A.2d at 959). “Amendments are germane to the original general
subject matter of a bill if both the subject of the amendments and the subject of the original
contents of the bill ‘have a nexus to a common purpose.’” Id. (citing Neiman, 84 A.3d at
612). In other words, we must engage in a comparison of the original bill and the final bill
to determine whether there has been an “unconstitutional alteration … so as to change
the original purpose of the bill.” PAGE, 877 A.2d at 408. Again, in acknowledging the
realities of the legislative process, this Court views the “original purpose” in “reasonably
broad terms.” Id. at 409.
Here, it is clear from the text of the original three-page bill that its purpose was to
eliminate Cash Assistance. Weeks II, 222 A.3d at 730-31 (“The original subject of the bill
was limited to the cash assistance provision … H.B. 33 originally had only three
provisions, all relating in some way to Cash Assistance.”); see also H.B. 33, Printer’s No.
0047 (2019). The amendments that led to the fifteen-page bill were completely separate
and distinct from the “original purpose,” i.e., to eliminate Cash Assistance. Thus, these
amendments fundamentally transformed the legislation. As detailed above, the
amendments included provisions related to revenue generation, funding for hospitals and
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healthcare providers, and also included the promotion of spending for public health
programs.
The Majority identifies the “original purpose” of Act 12 to be “to eliminate Cash
Assistance while favoring health-specific benefits for low-income individuals[.]” Majority
Op. at 37. It then suggests that in comparing the final bill and its numerous unrelated
amendments to the original bill, that Act 12 satisfies the “original purpose” rule. I cannot
agree. For one, this Court previously identified the “original purpose” of the bill to be
“limited to” Cash Assistance, i.e., its elimination. Weeks II, 222 A.3d at 730. I find it telling
that the Majority found it necessary to broaden the original purpose of the bill for purposes
of merits review in order to uphold the expanded Act 12’s conformance with the Article III,
Section 1. 15 Although we employed the “highly deferential” standard to review the
preliminary injunction in Weeks II, the original purpose of the Act is not a moving target.
It originally said the same thing as it says now on merits review. Then and now, the
purpose was to eliminate Cash Assistance. In my view, to conclude that these revenue
and spending provisions, which comprise the majority of the final bill, serve the original
purpose of eliminating Cash Assistance ignores what actually happened to this bill.
We previously found the original bill’s purpose to be clear: the bill eliminated Cash
Assistance. However, the Majority has departed from our previous finding as to Act 12’s
original purpose, and instead substituted it for one that still cannot survive our review. I
see no reasonable way to read the original bill and determine that it was intended to
eliminate Cash Assistance in favor of anything else, let alone health-specific benefits for
low-income individuals. In the initial bill, the amendments to the Human Services Code
were limited to eliminating any reference to Cash Assistance from the eligibility
requirements or definitional sections, including those that also referenced Medical
15 I note that the Majority adopted our previous articulation of the proposed “single-
subject” from Weeks II, see Majority Op. at 29 & n.24.
[J-50-2022] [MO: Todd, C.J.] - 11
Assistance. H.B. 33, Printer’s No. 0047 (2019). Simply because both Cash Assistance
and Medical Assistance fell under the category of “General Assistance” in the Human
Services Code does not mean that the elimination of Cash Assistance suggests a
preference for Medical Assistance. It means that the General Assembly’s plan was to
eliminate Cash Assistance, and it had to delete any reference to it in order to accomplish
that goal. Accordingly, I cannot agree with the Majority’s proposed original purpose, as it
unreasonably suggests the initial bill did more than it actually did.
Moreover, and critically, accepting the Majority’s proposed subject and
hypothetical purpose condones the type of logrolling which both Sections 1 and 3 of
Article III intended to prevent. It is undisputed that former-Governor Wolf supported the
revenue measures, but he did not support the elimination of Cash Assistance. However,
because of what he considered to be a “Hobson’s Choice,” Governor Wolf signed the bill
into law to ensure that the hospitals would receive necessary funding. Ed Mahon, PA.
POST, “Cash for the poor? Yes. Arming teachers? No. And 4 other highlights from
#AskGovWolf” June 20, 2019, https://www.witf.org/2019/06/20/cash-for-the-poor-yes-
arming-teachers-no-and-4-other-highlights-from-askgovwolf/ (last visited Aug. 29, 2023).
This circumvention of the executive’s veto power is part of what the single subject rule
was intended to eliminate. See Commonwealth ex rel. Att’y Gen. to Use of Sch. Dist. of
Patton v. Barnett, 48 A. 976, 977 (Pa. 1901) (acknowledging the relationship between the
single-subject rule and veto power). “[B]y joining a number of different subjects in one bill
the governor was put under compulsion to accept some enactments that he could not
approve, or to defeat the whole, including others that he thought desirable or even
necessary.” Id. This is precisely what happened with Act 12.
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This Court is duty bound to interpret the Constitution as it is written. 16 Article III,
Sections 1 and 3 were written with the intent of curtailing the very legislative abuses that
have taken place here. To presume the constitutionality of the Legislature’s actions is
one thing, but to condone such overly expansive concepts, as the Majority does today,
gives the Legislature free rein to combine disjointed provisions into a single act.
For the above reasons, I respectfully dissent.
16 My learned colleague has suggested that this Court’s application of the “original
purpose” and “single subject” analyses in prior cases have gone too far afield of what is
required by our constitutional language. See Dissenting Op. at 29 (Wecht, J., dissenting).
While this observation may be apt, I note that no party has asked us to overrule any case
that would allow us to depart from our current application of the “original purpose” and
“single subject” rules. Accordingly, we must adhere to our precedent until a litigant raises
an appropriate challenge.
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