Summary of Pennsylvania (PA) Constitutional Law
By: Bruce Ledewitz
Federal Courts and the Pennsylvania Constitution
Raynor v. D’Annunzio, 2019 PA Super 72 (Mar. 8, 2019), per Elliott, P.J.E., the Court held that seeking adjudication of contempt and requesting sanctions within a post-trial motion constitutes “procurement, initiation, or continuation of proceedings” as contemplated by the Dragonetti Act.
No Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania Constitution. See Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Cmwlth. 2006) (“[N]either Pennsylvania statutory authority nor appellate case law has authorized the award of money damages for violation of the Pennsylvania Constitution.”). The following recent court decisions illustrate how the federal courts view the actionability of violations of the Pennsylvania Constitution.
Sims v. Piazza, Slip Copy, 2011 WL 3664797 (M. D. Pa., August 19, 2011) (NO. 3:09-CV-33): plaintiff’s state law claims, including claims for monetary damages under the Pennsylvania Constitution were dismissed, and the Eighth Amendment cruel and unusual punishment claim was remanded.
The Pennsylvania Supreme Court has often stated that Pennsylvania does not follow the federal rule of Article III case or controversy doctrine in defining standing. Observers may have assumed that Pennsylvania had its own constitutional rule of standing and justiciability.
Kelly v. Commonwealth, 240 A.3d 1255 (Pa. 2020) (Nov. 28, 2020), the Supreme Court of Pennsylvania, per curium, dismissed the petition for review with prejudice based upon Petitioners’ failure to file their facial constitutional challenge within a timely manner. The Court explained that Petitioner’s challenge violated the doctrine of laches, an equitable doctrine that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another. Petitioners sought to invalidate the ballots of millions of Pennsylvania voters who utilized the mail-in voting procedures established by Act 77 of 2019. Petitioners suggested that only those ballots that Petitioners deemed “legal votes” should be counted, or alternatively, all 6.9 million Pennsylvanians who voted in the General Election should be disqualified and the General Assembly should choose Pennsylvania’s electors. Justice Wecht, concurring in the judgment, wrote that because Petitioners waived their opportunity to challenge Act 77’s new, no-excuse mail-in voting system because they delayed the lawsuit until two elections were conducted under the Act. Chief Justice Saylor, concurring in part, wrote that injunctive relief restraining the certification of the votes of Pennsylvanians cast in the 2020 general election should not be granted.
Friends of DeVito v. Wolf, 2020 WL 1847100 (Pa. Apr. 13, 2020), per Donohue, J., the Supreme Court of Pennsylvania utilized its King’s Bench authority to hold that Governor Wolf had statutory authority under the police power to issue an Order requiring all non-life-sustaining businesses to close.
Himchak v. PA, 2020 WL 1151456 (M.D. Pa. Mar. 10, 2020), per Mehalchick, J., the court held the Appellant waived his constitutional claim because the Appellant had only briefly mentioned the Pennsylvania Constitution and failed to develop it into “any meaningful fashion capable of review.”
Williams v. City of Philadelphia, 188 A.3d 421 (Pa. 2018), per Saylor, C.J., the Court held that the Commonwealth’s sales and use tax, and the city’s beverage tax were not preempted by the Sterling Act, governing the city’s imposition of local taxes.
Commonwealth v. Robinson, No. 720 CAP, 2018 WL 6601189 (Pa. Dec. 14, 2018), per Donohue, J., the Court reviewed Robinson’s petition for relief, raising a due process violation, premised upon the receipt and delivery of offensive emails by former Pennsylvania Supreme Court Justice Michael Eakin and possible ex parte communication between Eakin and members of the Office of the Cumberland County District Attorney. The Court concluded that Robinson satisfied the newly discovered fact exception to the PCRA’s one-year time requirement and that the DA was disqualified from further proceedings.
Pennsylvania State Educ. Ass’n ex rel. Wilson v. Commonwealth, 110 A.3d 1076 (Pa. Cmwlth. 2015): per Jubelirer, J., enjoined records maintained by the public school districts, which contain home addresses of public school employees, from being disclosed pursuant to a request under the Right To Know Law (“RTKL”) request, until the affected employees had written notice and a meaningful opportunity to object to the release of the documents. The court explicitly held that this holding was based on “the personal security exception” of the RTKL, with no mention of Article I, Sections 1 or 8 of the Pennsylvania Constitution.
In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624 (Pa. 2015): per Saylor, C.J., held that Pennsylvania Attorney General Kathleen Kane’s quo warranto action, seeking to quash the appointment of a special prosecutor must be denied, as the “supervising judge had statutory authority to appoint a special prosecutor and separation of powers principles were not violated by appointment.” While the principle opinion did not mention the Pennsylvania Constitution, Justice Stevens’ concurrence briefly stated that “[u]ntil the Legislature provides appropriate statutory guidelines for the appointment of special prosecutors, we look to the Pennsylvania Constitution . . . and the former Independent Counsel Authorization Act for such guidance [on such an issue].”
Banfield v. Cortes, 110 A.3d 155, 175 (Pa. 2015): per Stevens, J., held in part that the certification of direct-recording electronic voting systems (“DREs”) did not violate Article I, Sections 5 and 26 and Article VII, Section 6 of the Pennsylvania Constitution for being devices “susceptible to interference.” In so holding, Justice Stevens stated that the Court was “persu[ded] [by] the decisions of federal circuit courts that have held that DREs that register votes electronically without a voter-verified ballot do not severely restrict the right to vote.” Citing the U.S. Court of Appeals for the Ninth Circuit’s opinion in Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir. 2003) for the proposition that “state officials have the power to substantially regulate the election process as it is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems.” (internal quotations omitted)
Commonwealth v. Gillespie, 103 A.3d 115 (Pa. Super. 2014): per Gantman, P.J., upheld the search of a defendant’s bottle, which contained crack cocaine, as he was going through security at a courthouse entrance. The specific holding was that the “bottle constituted a reasonable search conducted in furtherance of the legitimate administrative purpose of ensuring public safety in a courthouse.” The court used a three-prong test announced by the United States Supreme Court in Brown v. Texas, 443 U.S. 47 (1979) for determining the reasonableness of a seizure that is less intrusive than “a traditional arrest.” This test had been used by Pennsylvania courts in the past to uphold searches and seizures at other courthouses and airports.
Berwick Area Landlord Association v. Borough of Berwick, 48 A.3d 524, (Pa. Cmwlth. 2012): per Colins, J., held that an Ordinance enacted by the Borough of Berwick was not preempted by either the Landlord-Tenant Act or the criminal code. See Article I, Section 1 infra.
Commonwealth v. Au, 42 A.3d 1002 (Pa. 2012): per Saylor, J., held that, under the Fourth Amendment, a request by a police officer for identification does not make the encounter an unconstitutional investigatory detention. Justice Saylor stated that litigants seeking to make a departure from the deterrence-based rationale of Fourth Amendment law by invoking the independent search-and-seizure jurisprudence under Article I, Section 8 of the Pennsylvania Constitution “must bring this matter into sharp focus in their advocacy.” (For this reason, any issues that could have been raised under Article I, Section 8 were not reached by the court.) Justice Baer dissented, and was joined by Justice Todd: but agreed in a footnote that the scope of the decision is limited to a Fourth Amendment analysis (under which issues were raised) because it is up to the advocate to raise the privacy based-interests of Article I, Section 8.
In the Matter of Condemnation by Urban Redevelopment Auth. of Pittsburgh, 823 A.2d 1086 (Pa. 2006): per Cappy, C.J., the Court upheld the condemnation of adult movie theater against federal First Amendment and Article I, Section 7 claims. The Court did not reach the standing issue because, unlike treatment in federal courts, standing in courts of Pennsylvania is “nonjurisdictional and waivable.” For substantive analysis, see infra, Article I, Section 7.
Stackhouse v. Commonwealth, 892 A.2d 54 (Pa. Cmwlth. 2006): per Leadbetter, J., the panel distinguished between claims for damages and for affirmative injunctive relief, which was held barred by sovereign immunity, 1 Pa.C.S. section 2310, and claims seeking to restrain state officials from affirmative acts, which were not; the court did not appear to distinguish actions to enforce State constitutional rights at issue in this case from any other kind of claim.
In re Hickson, 821 A.2d 1238 (Pa. 2003): per Cappy, J., the Court held that the standing doctrine in Pennsylvania has no constitutional counterpart to the “case or controversy” requirement under Article III of the U.S. Constitution; standing is merely a “useful tool” in regulating litigation in Pennsylvania (Fn. 5). [Of course, standing requirements do exist and the appellant in Hicksonwas held to lack standing to seek judicial review. Nevertheless, the proclamation of a purely prudential basis for standing is an important step. And, since most federal justiciability doctrine is also grounded in Article III, there may be no constitutional basis for ripeness, mootness, or political question doctrine either.]
Commonwealth v. Hall, 830 A.2d 537 (Pa. 2003): per Castille, J., the Court upheld as constitutional a statutory permissive inference that use of an unlicensed firearm may be regarded as evidence that the defendant intended to commit the offense, here aggravated assault, against due process challenge under the federal standard of County Court of Ulster County v. Allen, 422 U.S. 140 (1979). The Court acknowledged Pennsylvania precedent applying a test for such inferences as more restrictive than the current federal standard, but held that this case law applied federal analysis. The Court declined to treat the Pennsylvania Constitution as more restrictive since counsel did not argue text, history, or policy to apply a more restrictive standard under the Pennsylvania Constitution. Pennsylvania due process analysis, therefore, was treated as coextensive with federal analysis.
Wert v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 821 A.2d 182 (Pa. Cmwlth. 2003): per Leavitt, J., the court held that Pennsylvania constitutional claims presented in conclusory fashion, in a footnote, cannot be addressed because such a presentation does not explain the basis for the legal claim as requested by Pa.R.A.P. 2119(a).
In the Interests of R.H., 791 A.2d 331 (Pa. 2002): plurality opinion holding that school police officers are subject to the requirements of Miranda warnings. Equally important, the plurality held that once a case is decided on federal constitutional grounds, state constitutional grounds need not be discussed.
Commonwealth v. Crawford, 798 A.2d 266 (Pa. Super. 2001): failure of media parties to appeal the denial of intervention waives that issue; media parties otherwise lack standing to challenge “gag” order in juvenile death penalty case.
Kleese v. Pennsylvania State Board of Funeral Directors, 738 A.2d 523 (Pa. Cmwlth. 1999): reference by the party to “freedom of commercial speech” sufficient, even in the absence of citation to either the federal or Pennsylvania constitutions, to raise a constitutional issue.
In re T.J, 739 A.2d 478 (Pa. 1999): per Cappy, J., the Court held that county mental health office has standing to contest the decision not to extend mental patient’s involuntary commitment despite mootness because the matter “raises an issue of an important public interest, and is an issue which is capable of repetition and yet apt to evade review”; the administrative agency has standing to litigate matters that “touch  upon its concerns” (citing Pennsylvania Game Comm’n v. Commonwealth, Dept. of Environmental Resources, 555 A.2d 812, 815 (Pa. 1989)).
Commonwealth v. Kilgore, 719 A.2d 754 (Pa. Super. 1998): counsel ineffective for failing to raise search issue under the State Constitution. [This case may signal a new attitude toward the failure to raise state constitutional issues when federal constitutional issues are raised.]
Article I. Declaration of Rights
Section 1: Reputation
Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 207 A.3d 886 (Pa. Apr. 26, 2019), per Donohue, J., the Court held that Airbnb rentals were not included in Hamilton Township’s zoning ordinance despite Article 1, section 1 of the Pennsylvania Constitution, which protects a citizen’s right to the private enjoyment of his or her property. The Court overruled the lower court, as well as its decisions in Marchenko and Shvekh, by holding that uses not expressly permitted in a zoning ordinance are excluded by implication.
Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002): per Zappala, C.J., the Court held that there is a right grounded in due process and Article I, Section 1 (Reputation) of the Pennsylvania Constitution to petition for expungement of a dismissed protection from abuse proceeding, even in the absence of statutory authority.
Section 1: Due Process
Pennsylvania landowners enjoy protections from zoning that are not recognized under federal due process, nor under the federal law of just compensation. For example, the landowner, under certain circumstances, has the right of the natural expansion of a non-conforming use.
Delaware Riverkeeper Network v. Middlesex Twp. Zoning Hearing Bd., 2019 WL 2605850 (Pa. Commw. Ct. June 26, 2019), per Wojcik, J., the court held that a new Township zoning ordinance that would provide for the use and regulation of oil and gas operations does not violate the Environmental Rights Amendment. The Delaware Riverkeeper Network claimed that the Township did not have power under Article 1, Section 1 to impose these regulations, but the court analyzed Frederick v. Allegheny Township Zoning Hearing Board to determine that the ordinance was proper.
MCT Transportation, Inc. v. Philadelphia Parking Authority, 60 A.3d 899 (Pa. Cmwlth. 2013): per Leavitt, J., the court held that Section 5707(b) of the Parking Authority Law was an unconstitutional delegation of legislative power because the General Assembly failed to establish the standard for the Parking Authority with regard to setting spending limits and fees in violation of the separation of powers. The court also held that the statute violated due process under the Fourteenth Amendment and Article I, Section 1 of the Pennsylvania Constitution because there is no opportunity for taxicab companies to challenge the fee that they must pay to stay in business, which has the effect of condemning property without a hearing.
G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012): per Covey, J., applied the three-part test of Matthews v. Eldridge, 424 U.S. 319 (1976) to appellant’s interest in reputation under due process in Article I, Section 1 of the Pennsylvania Constitution. The court finds that, although substantial evidence is the appropriate standard for a finding that child abuse has occurred, clear and convincing evidence is required in order to maintain a name on the ChildLine & Abuse Registry because of the risk of erroneous deprivation of an interest in reputation. (Simpson, J., & Leadbetter, J., dissented.)
Pocono Mountain Charter School v. Pocono Mountain School District, Slip Copy, 2011 WL 3737443 (Not selected for publication in the Federal Reporter) (3d Cir.), August 25, 2011) (NO. 10-4478): although claims for money damages for violations of the Pennsylvania Constitution are barred, equitable remedies (such as declaratory or injunctive relief) are available.
Doe ex rel. Doe v. North Allegheny School Dist., Slip Copy, 2011 WL 3667270 (W. D. Pa., August 22, 2011) (NO. 2:08CV1383): in a memorandum opinion recognizing that because the Pennsylvania Supreme Court has held that the requirements of Article I, Section 1 of the Pennsylvania Constitution are not distinguishable from the Due Process claim of the 14th Amendment of the United States Constitution, federal courts must apply the same analysis to both claims; because the plaintiff’s substantive due process claim did not prevail under the state-created danger theory, plaintiff’s claim under Article I, Section 1 of the Pennsylvania Constitution must necessarily be dismissed.
Nixon v. Commonwealth of Pennsylvania, Department of Public Welfare, 839 A.2d 277 (Pa. 2003): per Nigro, J., the Pennsylvania Supreme Court held that an amendment to the Older Adults Protective Service Act (disqualifying certain persons with criminal records from employment in facilities catering to older adults) violated the Pennsylvania Constitution’s due process right to pursue a particular occupation.
Pa Northwestern Distributors, Inc. v. Zoning Hearing Board, 584 A.2d 1372 (Pa. 1991): the Court held that amortization of a non-conforming use is a per se taking of private property for which just compensation must be paid.
Section 5: Voting Rights
League of Women Voters v. Commonwealth,178 A.3d 737 (Pa. 2018), per Todd, J., the Court held that claims of violation of state constitution’s free and equal elections clause, and claims of violation of federal equal protection clause, are subject to entirely separate jurisprudential considerations, and the court is not required to utilize the same standard to adjudicate both types of claims; abrogating Erfer v. Commonwealth, 794 A.2d 325 (Pa. 2002). The Court also held that alleged political gerrymandering provides a basis for a claim that a congressional redistricting plan violates the state constitution’s free and equal protection clause, and that the 2011 redistricting plan passed by the General Assembly and signed into law by Gov. Tom Corbett deprived voters of their state constitutional right to free and equal elections under Article I Section 5 of the Pa. Constitution. The Court also held that when the legislature is unable or chooses not to act to remedy an unconstitutional congressional redistricting plan, it becomes the judiciary’s role to determine the appropriate redistricting plan.
Mixon v. Commonwealth, 759 A.2d 442 (Pa. Cmwlth. 2000): the court upheld disenfranchisement of incarcerated felons, rejecting the plaintiff’s claim that “suffrage is an inviolate right” for felons under the Pennsylvania Constitution, but struck down the provision of state law that deprived ex-felons who were incarcerated within the past five years of the right to register to vote under federal rational basis review.
Section 5: Elections
Banfield v. Cortes, 110 A.3d 155, 175 (Pa. 2015): per Stevens, J., held in part that the certification of direct-recording electronic voting systems (“DREs”) did not violate Article I, Sections 5 and 26 and Article VII, Section 6 of the Pennsylvania Constitution for being devices “susceptible to interference.” In so holding, Justice Stevens stated that the Court was “persu[ded] [by] the decisions of federal circuit courts that have held that DREs that register votes electronically without a voter-verified ballot does not severely restrict the right to vote.” Citing the U.S. Court of Appeals for the Ninth Circuit’s opinion in Weber v. Shelley, 347 F.3d 1101, 1106 (C.A. 9 2003) for the proposition that “state officials have the power to substantially regulate the election process as it is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems.” (internal quotations omitted).
Applewhite v. Commonwealth, 2014 WL 184988 (Pa. Cmwlth. January 17, 2014): per McGinley, J., the court held that the Voter ID law, Act 18, unduly burdens the fundamental right to vote afforded by Article 1, Section 5 of the Pennsylvania Constitution, but does not violate the equal protection provided Sections 1 and 26 of the state constitution.
Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012): Per Curiam opinion, vacated the decision by the Commonwealth Court, which had denied a preliminary injunction on the Voter ID Law, and returned the matter to the court for further fact-finding on the new expedited procedures for getting out alternative identification cards for the current election cycle. The court agreed with the Petitioners “that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future.” The Court held that if the lower court finds in its predictive judgment that there will be “no voter disenfranchisement”, then that court will be “obliged to enter a preliminary injunction.” Justice Todd and Justice McCaffery each dissented from sending the case back for more fact-finding rather than for immediate issuance of the preliminary injunction.
Section 6: Right to Trial by Jury
Right to Jury Trial in Criminal Cases:
Commonwealth v. Tharp, 754 A.2d 1251 (Pa. 2000): per Nigro, J., the Court unanimously upheld the 1998 constitutional amendment of Article I, Section 6, providing the Commonwealth in a criminal case the same right to a jury trial as the defendant.
Right to Jury Trial in Civil Cases:
It is well settled that the standard for applying Article I, Section 6 is, in part, whether a jury trial would have been available under such a claim when the Pennsylvania Constitution was adopted. In Wertz v. Chapman Township (1999), infra, the majority acknowledged that this test is narrower than that applied under the 7th Amendment to the United States Constitution.
Fritz v Wight, 907 A.2d 1083 (Pa. 2006): per Baer, J., the Court held that civil jury verdict with special interrogatories will be sustained where different groups of 10 jurors comprise the majority for different questions as long as some groups of 10 jurors agree on each interrogatory and on the final verdict. (Saylor, J. dissented).
Commonwealth v. Downey, 732 A.2d 593 (Pa. 1999): per Cappy,J., the Court held that denial of motion to poll jury made after verdict is recorded but before the jury disperses constitutes reversible error, even without a showing of prejudice by the defendant.
Wertz v. Chapman Township, 741 A.2d 1272 (Pa. 1999): in a matter of first impression, per Cappy, J., the Court held that the civil jury trial provision does not require a jury trial in a damage action for sexual discrimination under the Pennsylvania Human Relations Act.
Blum v. Merrell Dow Pharmaceuticals, Inc., 626 A.2d 537 (Pa. 1993): after a full Edmunds analysis, the Pennsylvania Supreme Court held that Article I, Section 6 of the Pennsylvania Constitution requires a full, twelve-person jury in a civil case if requested.
Commonwealth v. One 1984 Z-28 Camaro Coupe, 610 A.2d 36 (Pa. 1992): per Flaherty, J., the Court held that an owner of property subject to forfeiture pursuant to the Controlled Substances Forfeitures Act is entitled to a jury trial, because “In rem forfeiture actions involving questions of whether the goods seized are contraband were heard in common law courts before juries in 1790.”
Section 7: Free Expression
The Pennsylvania Supreme Court has suggested that under limited circumstances, Article I, Section 7 of the Pennsylvania Constitution may have some application to private conduct. In Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 515 A.2d 1331 (Pa. 1986), the Court held that Section 7 of the Pennsylvania Constitution does not grant individuals a right of access for the exercise of free expression on private property when the owner prohibits all political activities from occurring on the premises.
DePaul v. Commonwealth et al., 969 A.2d 536 (Pa. 2009): per Castille, J., the Court held Section 1513 of the Pennsylvania Race Horse Development and Gaming Act (4 Pa.C.S. § 1513), which attempted to impose an absolute ban on political contributions on persons affiliated with licensed gaming in Pennsylvania, unconstitutional under Article I, Section 7, to the extent that it prohibited contributions of any amount. (McCaffery, J. dissented).
In the Matter of Condemnation by Urban Redevelopment Authority of Pittsburgh, 913 A.2d 178 (Pa. 2006): per Cappy, C.J., the Court upheld a taking in the context of the condemnation of an adult movie theater as part of a 3-block blighted area against a State constitutional free expression claim premised on Pap’s A.M. v. City of Erie, 812 A.2d 591 (2002) because “unlike the Pap’s matter, there is no silent, content-based reason that is ‘inextricably linked’ to the content-neutral reason of urban redevelopment.”
Norton v. Glenn, 860 A.2d 48 (Pa. 2004): after balancing the free expression guaranteed by Article I, Section 7 against the right to reputation protected by Article I, Section 1, the Court, per Chief Justice Cappy, held that there is no “neutral reportage” privilege under the Pennsylvania Constitution, nor is such privilege recognized under federal First Amendment law.
Uniontown Newspapers v. Roberts, 839 A.2d 185 (Pa. 2003): per Eakin, J., the Court held that because Article 1, Section 7 of the Pennsylvania Constitution “provides no more expansive rights of the press to access information than the First Amendment”, neither the Pennsylvania Constitution nor the federal First Amendment grants the press a right of access to legislative phone records.
Piatek v. Pulaski Township, 828 A.2d 1164 (Pa. Super. 2003): the Court upheld restrictions on a sexually oriented business under authority of precedents pre-dating Pap’s A.M., and made no mention to Pap’s.
Pap’s A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002): per Castille, J., the Pennsylvania Supreme Court struck down a City ban on nude erotic dancing under Article I, Section 7 of the Pennsylvania Constitution on remand from The United States Supreme Court, which upheld the ban against a First Amendment challenge. The Pennsylvania Commonwealth Court continues to regard Pap’s A.M. as not changing the basic State constitutional analysis pursuant to Article I, Section 7.
Insurance Adjustment Bureau v. Insurance Commissioner, 542 A.2d 1317 (Pa. 1988): per Flaherty, J., the Court struck down a ban on insurance adjustment solicitation of the public within 24 hours of a fire or other catastrophe on primarily federal commercial speech grounds, but ultimately propounded a state constitutional test prohibiting speech restriction “where the legitimate, important interests of government may be accomplished practicably in another, less intrusive manner.”
Section 8: Search and Seizure
Despite the substantial similarity between the text of Article I, Section 8, and that of the fourth amendment, this is the parallel provision most consistently expanded beyond the protections of the federal Constitution. In a number of cases, the Pennsylvania Supreme Court has gone beyond the requirements of the federal fourth amendment in interpreting Section 8. The following list provides a summary of some of the more noteworthy decisions rendered by Pennsylvania courts, in chronological order:
Commonwealth of Pennsylvania v. Keith Alexander, 243 A.3d 177 (Dec. 22, 2020), the Supreme Court of Pennsylvania, per Donohue J., held that Article 1, Section 8 of the Pennsylvania Constitution affords greater protection to citizens than the Fourth Amendment; therefore, warrantless vehicle searches require both probable cause and exigent circumstances under the state constitution. This decision overruled Commonwealth v. Gary, which had held that, without limitation, the federal automobile exception to the warrant requirement of the Fourth Amendment to the United States Constitution applies in Pennsylvania.
Commonwealth v. Barr, 2020 WL 5742680 (Sept. 25, 2020), per Bender, P.J.E., the Superior Court of Pennsylvania held that, although the smell of marijuana may contribute to a finding of probable cause, the odor by itself does not imply individualized suspicion of criminal activity because marijuana is now sometimes legally possessed. The Superior Court further explained that the odor of marijuana, along with the totality of the circumstances, may contribute to a finding of probable cause that the marijuana detected was illegally possessed.
Commonwealth v. Batista, 219 A.3d 1199 (Sept. 27, 2019), per Kunselman, J., Appellant alleges that because marijuana is now medically available in Pennsylvania, police officers may no longer rely upon its smell as a factor for developing probable cause. The court concluded that the growth, distribution, possession, and use of marijuana without a state-issued permit remains illegal, and thus the smell of marijuana may still indicate criminal activity is afoot under Article I, Section 8 of the Pennsylvania Constitution. The Court affirmed the admission of the evidence.
Commonwealth v. Myers, 164 A.3d. 1162 (Pa. July 2017), per Wecht, J., the Court held that implied consent statutes do not authorize warrantless blood tests of unconscious defendants, abrogating Commonwealth v. Eisenhart, 611 A.2d 681 (Pa. 1992). The Court held that the language of the Commonwealth’s DUI statute, See 75 Pa.C.S. § 1547(a), that a DUI suspect “shall be deemed to have given consent” to a chemical test does not constitute an independent exception to the warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Like any other search premised upon the subject’s consent, a chemical test conducted under the implied consent statute is exempt from the warrant requirement only if consent is given voluntarily under the totality of the circumstances.
Commonwealth v. Shabezz, 166 A.3d. 278, 2017 WL 3044239 (Pa. 2017), per Wecht, J., the Court held that defendants have standing to challenge illegal searches of a vehicle in which they are a driver or passenger where no reasonable expectation of privacy exists. The Court upheld the “automatic standing doctrine” (See Commonwealth v. Enimpah, 106 A.3d 695, at 698-99 (Pa. 2014)) to allow Shabezz to challenge his seizure by police. The Court also held that the illegal seizure itself renders all evidence obtained from an illegal automobile search fruit of the poisonous tree unless the taint is removed, and no further demonstration of a privacy interest in the area from which the evidence is seized is required by Article I Section 8, noting that the Pa. Constitution affords greater protection than the Fourth Amendment.
Commonwealth v. Arter, 151 A.3d 149 (Pa. 2016): per Todd, J., the Court held that the exclusionary rule derived from Article I, Section 8 of the Pa. Constitution, and the 4th Amendment of the U.S. Constitution, applies to parole and probation revocation hearings. While the Supreme Court of the United States has declined to extend the exclusionary rule to proceedings other than criminal trial proceedings, the court here held that Article I Section 8 of the Pa. Constitution offers broader protection than the Fourth Amendment, and that after an Edmonds analysis, the appellant was entitled to relief based exclusively under the Pa. Constitution.
Commonwealth v. Loughnane, 128 A.3d 806 (Pa. Super. 2015): per Ford Elliot, P.J.E., the three-panel court held that the federal automobile exception, as adopted by Com. v. Gary, 91 A.3d 102 (Pa. 2014), applies to vehicles parked in driveways at private residences, “because driveways are not part of a home’s curtilage, and an individual does not have a reasonable expectation of privacy over their driveway.”
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014): per McCaffery, J., the court held that the federal automobile exception will apply to warrantless searches of motor vehicles under Article 1, Section 8 of the Pennsylvania Constitution. Therefore, police need only probable cause when conducting such a search.
Commonwealth v. Bowmaster, 101 A.3d 789 (Pa. Super. 2014): per Strassburger, J., vacated a defendant’s sentence because the court found the side yard next to the defendant’s trailer was curtilage and that police “officers lacked exigent circumstances necessary for warrantless nighttime search of defendant’s curtilage” under Article I, § 8 of the Pennsylvania Constitution. The court found the side yard to be curtilage because it was fenced, gated, and “contained numerous signs which indicated that the area was off-limits to the general public.” The major factor the court considered as it looked for exigent circumstances was the time of the search. Here, the search was at night and the officers could not articulate a reason that the search could not have waited until the morning.
Commonwealth v. Dunnavant, 63 A.3d 1252 (Pa. Super. 2013): per Shogan, J., the court upheld the order granting the suppression motion of the defendant with regard to silent video stills taken when a confidential informant was in the defendant’s home. These video stills of the inside of the home were obtained without a warrant and therefore, were in violation of the right to privacy in the home and in depictions of the home under both the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012): per Saylor, J., the Court held that the independent police team requirement for application of Pennsylvania’s version of the independent source doctrine should be limited to situations where it would prevent the police “from exploiting their own willful misconduct.” Absent such malfeasance, the test of Murray v. United States, 487 U.S. 533 (1988) will strike the best balance between privacy under Article I, Section 8 of the Pennsylvania Constitution and the needs of law enforcement. The independent source doctrine is an exception to the exclusionary rule where evidence seized by police under circumstances that would otherwise violate a constitutional right will be admissible “if the prosecution can demonstrate that the evidence in question was procured from an independent origin[.]” Commonwealth v. Melendez, 676 A.2d 226, 332 (Pa. 1996). Chief Justice Castile wrote a concurring opinion in Henderson praising the majority opinion for reigning in “the broad state constitutional dictum” of Melendez, which had limited the independent source doctrine to situations where the second investigative is “truly independent” of the first investigative team. Justice Todd wrote a concurring opinion in which she concurred in the result, but criticized the majority’s reasoning for restricting privacy protection from unlawful intrusion in a way not contemplated by the framers of Article 1, Section 8.
Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007): the Court, per Castille, J., with Cappy, C.J., Baer and Baldwin, JJ., dissenting, held that the federal open fields doctrine, which generally does not recognize a legitimate expectation of privacy in privately owned property outside the curtilage of habitation under the federal fourth amendment, applies equally to searches and seizures under the Pennsylvania Constitution; the opinions discussed at some length the appropriate use and structure of state constitutional interpretation.
Jones v. City of Philadelphia, 890 A.2d 1188 (Pa. Cmwlth. 2006): per Cohn Jubelirer, the court, using the 4-part Edmunds test, held that where the government uses excessive force to effect a seizure, the Pennsylvania Constitution provides no greater protection than does the federal Fourth Amendment. In light of the adequate remedy under section 1983, the court declined to recognize a cause of action for money damages for violation of Article I, Section 8. On October 25, 2006, the Pennsylvania Supreme Court denied without opinion a petition for allowance of appeal of the Pennsylvania Commonwealth Court decision. PA Supreme Court Docket Number 95 EAL 2006.
Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004): an opinion by Chief Justice Cappy seems to permit canine drug sniffs of the exterior of an automobile based on reasonable suspicion and of the interior of a car based on probable cause.
Commonwealth v. Duncan, 817 A.2d 455 (Pa. 2003): refusing to apply Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979), the Court, per Castille, J., held that there is no reasonable expectation of privacy in name and address that would prevent police from obtaining that information from banking records associated with an ATM card.
Theodore v. The Delaware Valley School District, 836 A.2d 76 (Pa. 2003): per Castille, J., the Court held that policy authorizing random, suspicionless drug and alcohol testing of students seeking parking permits or participating in voluntary extracurricular activities would be constitutional under Article I, Section 8, only if district made some actual showing of specific need for policy and an explanation of basis for believing that policy would address that need.
Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001): under both the Pennsylvania and federal Constitutions, there is no expectation of privacy in an e-mail received by someone else, nor is there an expectation of privacy in chat room conversations.
In the Interest of D.M., 781 A.2d 1161 (Pa. 2001): by adopting Illinois v. Wardlow, 528 U.S. 119 (2000) as the proper standard for evaluation of investigative stops under Article I, Section 8 of the Pennsylvania Constitution, the Court, per Justice Cappy, held that in the future, unprovoked flight at the approach of the police may be considered as a factor in deciding whether reasonable suspicion existed, thus justifying an investigative stop.
Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001): in a 4-3 decision, the Court held that a defendant does not have a reasonable expectation of privacy in a telephone conversation from his home with a confidential police informant and, therefore, the Commonwealth was not required to obtain a determination of probable cause before tape-recording the conversation. The decision does not appear to change the underlying analysis of Article I, Section 8 cases, nor portend a closer following of federal precedent in search cases.
Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001): per Zappala, J., the Court held that a warrant is required for seizure of hospital-administered blood-alcohol content test results under Article I, Section 8 of the Pennsylvania Constitution, but not required under the federal Fourth Amendment.
Commonwealth v. Zhahir, 751 A.2d 1153 (Pa. 2000): per Saylor, J., the Pennsylvania Supreme Court expressly adopted the federal “plain feel” doctrine as a permissible ground for seizure of contraband under Article I, Section 8 of the Pennsylvania Constitution; the majority also rejected a categorical approach to frisks in drug cases, instead requiring an independent justification for each frisk.
Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000): in a matter of first impression, the Pennsylvania Supreme Court, per Castille, J., held that anticipatory search warrants do not per se violate Article I, Section 8 of the Pennsylvania Constitution.
In Re F.B., 726 A.2d 361 (Pa. 1999): the Court upheld a general search of high school students as a pre-condition to entry to the school and set forth the framework for evaluating such searches under the Pennsylvania Constitution.
Commonwealth v. Cook, 735 A.2d 673 (Pa. 1999): per Cappy, J., the Pennsylvania Supreme Court applied the federal Terry stop and frisk to uphold the admission of abandoned property into evidence because reasonable suspicion had justified the original police approach.
Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999): because the Pennsylvania Constitution does not require “knowing and intelligent”, as opposed to “voluntary”, consent to an otherwise unconstitutional search, the Commonwealth need not show that the subject knew there was a right to refuse consent to the search.
Commonwealth v. Hawkins, 718 A.2d 265 (Pa. 1998): although Sell’s “automatic standing” permits a defendant to adjudicate a suppression motion, a legitimate expectation of privacy is still required under Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Alexander, 708 A.2d 1251 (Pa. 1998): the Pennsylvania Supreme Court, in limiting its holding in Commonwealth v. Brion (1994), held that no warrant is required for a one-party body-wire worn by a patient, with consent, in doctor’s office.
Commonwealth v. Cass, 709 A.2d 350 (Pa. 1998): search of all student lockers at high school violates neither Article I, Section 8 of the Pennsylvania Constitution, nor the federal Fourth Amendment.
Commonwealth v. Carlton, 701 A.2d 143 (Pa. 1997): absent exigent circumstances, Article I, Section 8 of the Pennsylvania Constitution requires “knock and announce” execution of warrant by police; the relation to Pa.R.Crim.P. 2007 and the fourth amendment is unclear.
Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996): the Pennsylvania Supreme Court held that the United States Supreme Court decision in California v. Hodari D. (1991) (which held that police officer’s pursuit of an individual was not seizure) did not govern the determination of whether police officers’ pursuits of the defendants were seizures under Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994): without mentioning the contrary Fourth Amendment precedent, United States v. White (1971), the Court held that use of a wired informant in a defendant’s home constitutes a search under Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991): rejecting United States v. Leon (1984), the Pennsylvania Supreme Court held that there is no “good faith” exception to the exclusionary rule.
Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989): rejecting Smith v. Maryland (1979), the Court held that placement of a pen register on an individual’s phone constitutes a search requiring probable cause.
Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983): rejecting United States v. Salvucci (1980), the Court granted “automatic standing” to challenge a search in a possession crime.
Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979): rejecting United States v. Miller (1976) (which held that the federal Constitution does not recognize an expectation of privacy in a person’s bank records), the Court held that a depositor has standing to challenge the seizure of his or her bank records.
Section 9: Rights of the Accused in Criminal Prosecutions
Commonwealth v. Schultz, 133 A.3d 294 (Pa. Super. 2016): per Bowes, J., a three-panel court reversed a trial court’s determination that Schultz was not denied counsel at his grand jury testimony and that no attorney-client privilege existed between Attorney Cynthia Baldwin and him. When Schultz, the retired Senior Vice President of Finance and Business for Penn State University, testified, Attorney Cynthia Baldwin, who was counsel for Penn State at the time, did not explicitly state whether she represented Schultz in his capacity as an agent of the university or personally. After eventually being charged and retaining personal counsel, Schultz notified Baldwin that he understood that she represented him during the grand jury testimony and he invoked the attorney-client privilege. Baldwin then testified before the grand jury, and made statements that incriminated Schultz. The Superior Court found that, because of the ambiguity regarding the status of Schultz’s representation by Baldwin, Schultz was constructively without counsel at the investigative grand jury, violating his constitutional right under Article I, Section 9 of the Pennsylvania Constitution. Applying the Mrozek test for determining whether an attorney-client privilege existed, 657 A.2d 997 (Pa. Super. 1995), the court found an attorney-client privilege existed because Schultz, no longer an employee of Penn State at the time he testified, approached Baldwin for legal advice that pertained to the Sandusky investigation only, not corporate business. The court also cited Baldwin’s acknowledgement that she believed no conflict of interest existed as evidence that she was aware of such a potential, and Schultz’s express request to invoke the doctrine. As such, the court quashed the charges for perjury, obstruction of justice, and conspiracy.
Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016): per Wecht, J., the Court held that a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office, so long as the class action plaintiffs demonstrate the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies of law. This case focused on the standing issue rather than the actual outcome.
Commonwealth v. Bland, 115 A.3d 854 (Pa. 2015): a four person Court, per Saylor, C.J., held that to require a suspension of questioning by law enforcement officials on pain of an exclusionary remedy, an invocation of Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation. After conducting an Edmunds analysis, the Court found that there was no reason to depart from federal law and that Article 1, Section 9 of the Pennsylvania Constitution did not afford greater protection.
Flora v. Luzerne Cnty. of Commonwealth of Pennsylvania, 103 A.3d 125 (Pa. Cmwlth. 2014), re-argument denied (Dec. 2, 2014): per Leavitt, J., held, in part under Article I, Section 9 of the Pennsylvania Constitution, that criminal defendants do not have the right to have counsel at their preliminary arraignment. The court clarified that the right to counsel attaches at the preliminary arraignment, but having counsel is not required for the arraignment, stating “only thereafter [the preliminary arraignment] that the indigent criminal defendant has a right to counsel.”
Section 10: Initiation of Criminal Proceedings; Twice in Jeopardy; Eminent Domain
Commonwealth v. Ball, 2014 WL 3670023 (Pa. Super. 2014): per Musmanno, J., the court held that a retrial on a charge that was dropped against the defendant by a Magisterial District Court judge after hearing evidence at a hearing and dismissing the charges was barred by the prohibition against Double Jeopardy under Art. I, §10 of the Pennsylvania Constitution. In making the ruling, the court observed that under Pennsylvania Double Jeopardy “jeopardy attaches when a defendant stands before a tribunal where guilt or innocence will be determined” and thus, provides more protection than the Federal Double Jeopardy Clause in the Fifth Amendment.
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014): per Mundy, J., held that new registration requirements under Pennsylvania’s SORNA statute are constitutional under Pennsylvania’s and federal government’s ex post facto clauses. When analyzing Pennsylvania’s ex post facto clause under Article I, §10 of the State Constitution, the court found that the appellants did “not include the required Edmunds analysis to consider whether . . . the Pennsylvania Constitution would provide higher ex post facto protections.”
Section 11: Open Courts and Remedies
Section 11 and several other provisions limit the power of the General Assembly to restrict recovery for injuries. The law in this area is complex. It is clear that whole causes of action can be abolished, especially when an administrative mechanism for recovery is supplied. On the other hand, it would probably be unconstitutional for the General Assembly to enact dollar amount limits for classes of damages.
Yanakos v. UPMC, 218 A.3d 1214(Pa. Oct. 31, 2019), per Mundy, J., the Court held that the seven-year statute of repose contained in the Medical Care Availability and Reduction of Error Act was unconstitutional because it violated Article I, Section 11 of the Pennsylvania Constitution. The Court applied intermediate scrutiny, and because the statute was not substantially related to an important government interest, the Supreme Court of Pennsylvania held that the statute was unconstitutional.
Masloff v. P.A.T., 613 A.2d 1186 (Pa. 1992): per Zappala, J., the Court held that if a legal injury is recognized and a remedy provided, special standing restrictions on the remedy’s use violate the public’s right of redress under Article I, Section 11 of the Pennsylvania Constitution.
Section 13: Bails, Fines, and Punishments
Hiko Energy, LLC v. Pennsylvania Pub. Util. Comm’n, 209 A.3d 246 (Pa. June 5, 2019), per Mundy, J., the Court held that the Public Utility Commission did not violate the Excessive Fines Clause of the Pennsylvania Constitution for its approximately $1.8 million civil penalty against HIKO. There were no constitutional issues in this case because HIKO failed to preserve its constitutional challenge.
Commonwealth v. Qu’eed Batts, 163 A.3d. 410 (Pa. 2017), per Donohue, J., the Court held that the standard of review is de novo for determining whether a juvenile was eligible to receive a sentence of life without parole. The Court would also exercise authority to adopt a presumption against sentencing a juvenile to life in prison without the possibility of parole and that the state bore the burden of rebutting presumption by proving that a juvenile is incapable of rehabilitation beyond a reasonable doubt.
Commonwealth v. 1997 Chevrolet & Contents Seized from Young, 160 A.3d 153 (Pa. 2017), per Todd, J., the Court held that some civil in rem forfeitures may violate the Excessive Fines clauses of the United States and Pennsylvania Constitutions (Art. I Sec. 13). Courts must assess whether the property sought to be forfeited is an instrumentality of the underlying offense. If the property is not found to be an instrumentality of the criminal conduct, the inquiry ends and the forfeiture is unconstitutional. If the property is an instrumentality, the inquiry continues to the proportionality prong and an assessment of whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense. If it is grossly disproportional, the forfeiture is unconstitutional.
Miller v. State Employees Retirement System, 137 A.3d 674 (Pa. Commw. Ct. 2016): per Covey, J., the Court held that a provision of the Public Employee Pension Forfeiture Act (Act 140) did not violate Article I, Section 13 of the Pennsylvania Constitution. According to the provision, a public employee forfeits his pension if he is convicted or pleads guilty or no defense to any crime related to public office/employment. Kenneth Miller, an appointed Senior Magisterial District Judge, plead guilty to one count of mail fraud resulting from an incident while on assignment in Delaware County. After pleading guilty, the Pennsylvania state Employees Retirement System notified Miller that his pension was forfeited as a consequence of his plea. The Court found the analysis in Scarantino v. Public School Employees’ Retirement Fund. 68 A.3d 375 (Pa. Commw. Ct. 2013) persuasive and upheld the forfeiture and further held that it was not a punishment, constituting an excessive fine, but rather a breach of contract on behalf of the petitioner. Section 17: Ex Post Facto Laws.
Commonwealth v. Eisenberg, 2014 WL 4079968 (Pa. Aug. 19, 2014): per Castille, C.J., held that the minimum mandatory fines under the Gaming Act was a violation of Article I, Section 13 of the Pennsylvania Constitution. Specifically, the Court held that a mandatory minimum fine of $75,000 for a first offense “misdemeanor theft of $200 under [the] Gaming Act…violated Pennsylvania Constitution’s prohibition against excessive fines.” Chief Justice Castille wrote that when analyzing Article I, Section 13, the “Court has looked to the gross disproportionality standard from [U.S. v. Bajakajian], which includes a threshold comparison between the amount of the fine and the gravity of the offense triggering the fine.”
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013): per Saylor, J., the Court held that, juvenile offenders who had a non-final judgment of sentence for murder as off the issuance of Miller v. Alabama, are subject to the mandatory maximum sentence of life imprisonment under 18 Pa.C.S. § 1102(a) with the minimum sentence to be determined by the common pleas court upon resentencing. Juveniles who were convicted on or after the date when Miller was decided are subject to higher mandatory minimum standards and the possibility of life without parole under 18 Pa.C.S. § 1102.1, upon evaluation by the sentencing court using the guidelines identified in Miller. The Court also held that life without parole for a juvenile offender was not cruel and unusual punishment under Article I, Section 13 of the Pennsylvania Constitution. Justice Bear wrote a concurring opinion in which he expressed his belief that for the purposes of uniformity in sentencing, the trial court should apply the new statue upon resentencing for appellants whose conviction pre-dated Miller.
Commonwealth v. Real Property Known as 5444 Spruce St., 832 A.2d 396 (Pa. 2003): in a unanimous opinion, the Court overruled the Commonwealth Court order, infra, and held that the only standard to apply to challenges to punitive forfeitures under Article I, Section 13 of the Pennsylvania Constitution is the the federal test of gross disproportionality of the punishment to the gravity of the defendant’s offense.
Commonwealth v. Mitchell, 833 A.2d 1220 (Pa. Cmwlth. 2003): the court held that the forfeiture of defendant’s vehicle was not grossly disproportional to defendant’s guilty pleas to four felony counts of possession with intent to deliver a Schedule I substance, and thus the forfeiture did not violate the constitutional prohibition against excessive fines.
Commonwealth v. Real Property and Improvements, 787 A.2d 1117 (Pa. Cmwlth. 2001): the Commonwealth Court concluded that the federal Eighth Amendment and Article I, Section 13 of the Pennsylvania Constitution require separate and different analyses for testing the constitutionality of forfeitures. Under the Eighth Amendment, the test is “gross disproportionality” and under Section 13, the Commonwealth must establish by clear and convincing evidence that the property forfeited was used as part of a pattern of criminal activity and not a onetime occurrence. Since State constitutional provisions may not weaken federal standards, a defendant of necessity will be permitted to make claims of unconstitutional forfeitures under both constitutions. The defendant did so in Real Property and failed under both arguments.
Commonwealth v. Means, 773 A.2d 143 (Pa. 2001): after a full Edmunds analysis, the Court, per Cappy, J., held that the introduction of victim impact testimony does not result in cruel punishment.
Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982): the Court held that Article I, Section 13 is “coextensive” with the “cruel and unusual punishments” provision of the federal Eighth Amendment.
Section 14: Habeas Corpus
Commonwealth v. Chester, 733 A.2d 1242 (Pa. 1999): in the course of affirming the denial of PCRA in a death penalty case, the Court, per Cappy, J., applied PCRA to claims of penalty phase error on the ground, in part, that the prohibition against suspension of the writ of habeas corpus would prevent the legislature from foreclosing any claims that would have been cognizable upon traditional habeas corpus review.
Section 17: Ex Post Facto Laws; Impairment of Contracts
Although never expressly articulated by the Pennsylvania Supreme Court, the standard to apply in challenges to retroactive legislation under Article I, Section 17 of the Pennsylvania Constitution is the federal standard of ex post facto law under Article I, Section 10 of the United States Constitution. Cimaszewski v. Board of Probation and Parole, 868 A.2d 416 (Pa. 2005), infra, lessens, if it does not eliminate, the conflict between the Third Circuit Court of Appeals and the Pennsylvania Supreme Court on this issue. Under Cimaszewski, in order to constitute retroactive legislation, particular facts must be presented to show that the amendment is likely to enhance a specific prisoner’s punishment.
Commonwealth v. Wood, 208 A.3d 131 (Pa. Super. 2019), per Murray, J., the court held that application of SORNA to sexual offenders for offenses committed before its effective date violates the ex post facto clause of the United States Constitution and Pennsylvania Constitution. The court also overruled Commonwealth v. Kizak. Companion case: Commonwealth v. Lippincott, 2019 PA Super 118 (Apr. 15, 2019).
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), per Dougherty, J., The Court held that retroactive application of the Pennsylvania Sex Offender and Notification Act violates the ex post facto clauses of both the U.S. and Pennsylvania Constitutions. The Court also held that SORNA’s registration provisions constitute punishment not withstanding the legislature’s identification of the provisions as non-punitive.
Berkhimer v. State Employees’ Retirement Board, 60 A.3d 873 (Pa. Cmwlth. 2013): per McCullough, J., the court rejected claims made by petitioner, a former judge who had been subject to disciplinary action for using improper language with staff that included sexual connotations, that the forfeiture of his pension was an unconstitutional impairment of his retirement contract under Article I. Section 17 of the Pennsylvania Constitution, and that the forfeiture was a violation of Article V, Section 16(a) prohibiting diminution of judicial salaries during a judge’s term in office. There was no impairment of a contract because, when a public official begins each new term in office, he or she renews the pension contract to include the new term in public service. The renewal of the contract after the 1993 amendments relating to forfeiture put all earnings at risk. Additionally, there was no ex post facto violation of Article I, Section 17 due to the forfeiture. Finally, there was no impermissible diminution of judicial salary, because the forfeiture of a pension takes place after the term in office.
Cimaszewski v. Board of Probation and Parole, 868 A.2d 416 (Pa. 2005): per Baer, J., the Court overruled Finnegan v. Pa. Bd. of Probation and Parole, 838 A.2d 684 (Pa. 2003) and held that that the 1996 amendment to the Parole Act may be shown to violate the ex post facto clause, if retroactive application of change created a significant risk of prolonging the prisoner’s incarceration.
Commonwealth v. Ardestani, 736 A.2d 552 (Pa. 1999): after a full discussion of retroactivity principles under the Pennsylvania Constitution, the Court held Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994) to apply retroactively to cases pending on direct appeal at the time of the decision.
Parsonese v. Midland National Ins. Co., 706 A.2d 814 (Pa. 1998): retroactive application of statute making benefit designation of spouse ineffective after divorce would be a violation of both Article I, Section 17 of the Pennsylvania Constitution and Article I, Section 10 of the United States Constitution.
Hoffman v. Township of Whitehall, 677 A.2d 1200 (Pa. 1996): the Pennsylvania Supreme Court held that adding a ten point credit to veterans’ scores in seeking promotions in public employment violates Article I, Section 17 of the Pennsylvania Constitution.
Section 21: Right to Bear Arms
Firearm Owners Against Crime v. Lower Merion Township, 151 A.3d 1172 (Pa. Commw. Ct. 2016): per McCullough, J., the court held that a local ordinance prohibiting carrying or discharging firearms in a park without a special permit violated Article 1, Section 21 of the Pa. Constitution, (“[the] regulation of firearms is a matter of concern in all of Pennsylvania…and the General Assembly, not city councils, is the proper forum of the imposition of such regulation.” quoting Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996)) and was preempted by the Pennsylvania Uniform Firearms Act (“[n]o county, municipality[,] or township may in any manner regulate the lawful ownership, possession, transfer[,] or transportation of firearms . . .”
Tsokas v. Board of Lic. and Inspect. Rev., 777 A.2d 1197 (Pa. 2001): the Pennsylvania Supreme Court upheld the revocation of appellant’s gun permit under the Pennsylvania Uniform Firearms Act of 1995 as a person “likely to act in a manner dangerous to public safety” and noting in passing that the right to bear arms in Article I, Section 21 “may be restricted in the exercise of the police power… .”
Section 26: No Discrimanation by Commonwealth and Its Political Subdivisions
Pocono Mountain Charter School v. Pocono Mountain School District, 908 F. Supp. 2d 597 (M. D. Pa. 2012): per Caputo, J., allowed the claim for equal protection under Article I, Section 26 to proceed, but denied the claim of interference with the right to worship under Article I, Section 3 because the charter school sought to assert the constitutional rights of individuals who were not plaintiffs in this litigation. In allowing the equal protection claim to proceed, the court said that the analysis is the same as that for claims made under the Fourteenth Amendment and that under the Pennsylvania Constitution, the right to public education and religious freedom are fundamental rights.
Section 27: Environmental Protection
Section 27 provides a right, in very broad terms, to environmental quality and specifies the Commonwealth as “trustee of these resources.” Despite its broad language, Section 27 has not had important effects in litigation. The Governor may not sue a private party for an alleged violation of Section 27 without implementing legislation. Private parties can sue the government for alleged violations of Section 27 without implementing legislation, but Section 27 is satisfied if all statutory protections for the environment have been followed, a reasonable effort has been made to reduce environmental harm to a minimum and the environmental harm does not clearly outweigh the benefits of the action.
Pennsylvania Envtl. Def. Found. v. Commonwealth, 214 A.3d 748 (Pa. Commw. Ct. July 29, 2019), per Wojcik, J., the Defendants did not violate the corpus of the Pennsylvania public trust regarding payments received from the sale of oil and gas leases on State Forest lands. The court held on remand from the Supreme Court of Pennsylvania that the challenged bonus and rental payments for oil and gas leases were not facially unconstitutional under the Environmental Rights Amendment of the Pennsylvania Constitution. These payments were not made for the severance of natural resources. Rather, they were consideration for the exploration of oil and gas on public land. Accordingly, the Commonwealth’s application for summary relief is granted, and the Foundation’s application for summary relief is denied.
Pennsylvania Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017), per Donohue, J., the Court held that laws that unreasonably impair the right to clean air, pure water, and environmental preservation are unconstitutional under Art. I Sec. 27 of the PA constitution, rejecting the test from Payne v. Kassab, 312 A.2d. 86 (Pa. Commw. 1973). The Court also held that under Art. I Sec. 27, the plain language of the section imposes on the Commonwealth with fiduciary duties over natural resources on public lands, and must manage them as a trustee. Additionally, proceeds from the sale of oil and gas from the public trust remain in the corpus of the trust and assets of the natural resources trust are to be used only for conservation and maintenance purposes.
Robinson Twp. v. Commonwealth, 2014 WL 3511722 (Pa. Cmwlth. July 17, 2014): per Pellegrini, J., on remand from the Pennsylvania Supreme Court, held that various sections of Act 13 did not violate the Pennsylvania Constitution as special laws or under the single subject rule, but also held that these sections were not severable from the parts of the act that the State Supreme Court held unconstitutional and thus enjoined their application and enforcement. Those sections included one that required notice to public, but not private water systems in the event of a spill and another that concerned the obligations of the energy companies to disclose contents of their chemicals to physicians when treating people as a result of exposure of those chemicals. The one section that was held to be severable was one which set limitations on local oil and gas ordinances.
Robinson Township, Washington County v. Commonwealth, 83 A.3d 901 (Pa. 2013): per Castille, C.J., held that Act 13, which would regulate oil and gas operations and grant power of eminent domain to natural gas corporations was in violation of the Enivornmental Rights Amendment.
Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012): per Pellegrini, J., in a challenge to the constitutionality of Act 13, which repealed the Oil and Gas Act and replaced it with a codified statutory framework for regulating oil and gas operations, the Court held that 58 Pa.C.S. § 3304, which allows oil and gas operations in all zoning districts, violates substantive due process under Article I, Section 1 of the Pennsylvania Constitution and under the Fourteenth Amendment to the United States Constitution because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods, and makes irrational classifications. The Court also held unanimously that, because 58 Pa.C.S. § 3215(b)(4) does not give guidance on when subsections are waivable by the Department of Environmental Protection (DEP), there was an unconstitutional delegation to the DEP of policy judgments that are reserved to the General Assembly. The court declared 58 Pa.C.S. § 3304 to be null and void, and enjoins all other parts of the law that would enforce 58 Pa.C.S. § 3304. The court also declared 58 Pa.C.S. § 3215(b)(4) to be null and void. (Brobson, J., filed a dissenting opinion on the holding that there is a violation of substantive due process under Article I, Section 1 of the Pennsylvania Constitution and under the Fourteenth Amendment to the United States Constitution.)
Pilchesky v. Rendell, 932 A.2d 287 (Pa. Cmwlth. 2007): in the context of dismissing claims against Commonwealth-related parties, thus ending the court’s jurisdiction, the court, per Colins, J., held that that land dedicated to use as a public park is not a “natural resource” and therefore its transfer for development does not violate the Article I, Section 27 of the Pennsylvania Constitution.
White v. Township of Upper St. Clair, 799 A.2d 188 (Pa. Cmwlth. 2002): per Leavitt, J., the Court held that Article I, Section 27 provides taxpayers and residents standing to enforce terms of dedication of a public park.
Section 28: Prohibition Against Denial or Abridgment of Equality of Rights Because of Sex
Although there is no equal protection provision in the Pennsylvania Constitution, the courts have interpreted several provisions to provide its equivalent. The Pennsylvania Supreme Court has held that interpretation of equal protection is guided by the same principles that are applied in interpretation of the federal equal protection clause. It is not clear however, that outcomes under the State Constitution are always equivalent to federal law.
Beattie v. Line Mountain School Dist., 992 F. Supp. 2d 384 (M. D. Pa. 2014): per Brann, Matthew W., District Judge, the court held that the Pennsylvania Constitution’s Equal Protection clause requires a showing that gender classifications “must not rely on overbroad generalizations about the different talents, capabilities, or preferences of Males and Females.” For that reason, the school board must show genuine justification explaining why prohibiting a girl from competing on boy’s wrestling team is not based purely on gender classifications and substantially related to an important government interest. The court finds that the proposed government interests fail to meet this standard and grants an injunction prohibiting the school board from interfering with the child’s joining of the wrestling team.
Weaver v. Harpster, 885 A.2d 1073 (Pa. Super. 2005): per Montemuro, J., the panel recognized sexual harassment common law cause of action for at will employee who was not covered by Pennsylvania Human Relations Act because employer had less than 4 employees; the court found public policy exception to at-will doctrine based in part on Article I, Section 28 (equal rights amendment) and Article I, Section 11 (open courts and remedies) provisions of the Pennsylvania Constitution.
Defazio v. Civil Services Commission of Allegheny County, 756 A.2d 1103 (Pa. 2000): the Supreme Court of Pennsylvania struck down a statute that provided for the Sheriff of Allegheny County to be the only county official in this Commonwealth without some discretion in hiring, firing or promoting his employees, under the equal protection clause contained in Article III, Section 32 of the Pennsylvania Constitution, on the ground that there was no rational basis for the sub-classification of the Allegheny County Sheriff.
Hartford Accident and Indemnity Co. v. Insurance Commissioner, 482 A.2d 542 (Pa. 1984): the approval of an automobile insurance rate by the Insurance Commissioner is sufficient to implicate Section 28 of the Pennsylvania Constitution.
Article II. The Legislature
The General Assembly is treated by the Pennsylvania courts as a body of general legislative powers except where there are express or implied constitutional limits. This stands in contrast to the approach of the courts with regard to congressional power. There are numerous important ways in which legislative powers under the Pennsylvania Constitution differ from those of Congress; for example, the General Assembly must follow specified and detailed legislative procedures in order for a bill to become law.
Section 2: Elections of Members; Vacancies
Perzel v. Cortes, 870 A.2d 759 (Pa. 2005): the Court held that the Secretary of Commonwealth, as an officer of the executive branch, lacks authority to question validity of a writ of election issued by legislative branch officials pursuant to Article II, Section 2 of the Pennsylvania Constitution.
Section 7: Ineligibility of Office
Bolus v. Fisher, 785 A.2d 174 (Pa. Cmwlth. 2001): relying upon Commonwealth ex rel. Baldwin v. Richard, 751 A.2d 657 (Pa. 2000), the panel holds that all felonies are “infamous crimes” under Article II, Section 7 of the Pennsylvania Constitution.
Section 16: Requirement of Legislative Districts
Holt v. 2011 Legislative Reapportionment Commission, 38 A.3d 711 (Pa. 2013): in an opinion accompanying an order issued 1/25/2012 (see Art. II, Section 17(e) below), the Court, per Castille, C.J., held that the 2011 Final Reapportionment is contrary to law because it contains “numerous political subdivision splits that are not absolutely necessary” and that the Commission could have achieved greater fidelity to the Art. II, Section 16 mandates of compactness, continguity, and integrity of political subdivisions; Saylor, J., filed a concurring and dissenting opinion; Eakin, J., filed a concurring and dissenting opinion; Orie Melvin, J., filed a concurring and dissenting opinion.
Section 32: Special Legislation
Williams v. Corbett, 916 F. Supp. 2d 593 (M. D. Pa. 2013): court, per Jones III, J., invokes abstention pursuant to Burford v. Sun Oil, Co., to refrain from deciding plaintiffs’ “special laws” claim because state law review is available and the challenge to Pennsylvania’s Financially Distressed Municipalities Act involves “difficult questions” of purely state law or policy.
Article III. Legislation
Recently, the Pennsylvania Supreme Court adopted a two-prong test for determining whether legislation violated Article III, Section 1: first, the Court must consider the legislation’s original purpose and compare it to the final purpose to determine whether there has been a change in the original purpose; second, the Court must consider whether the title and contents of the legislation are deceptive in their final form. Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 877 A.2d 383 (Pa. 2005).
Section 1: Passage of Laws
Marcavage v. Rendell, 936 A.2d 188 (Pa. Cmwlth. 2007): the panel, per Colins, J., struck down an amendment to the Ethnic Intimidation Statute, 18 Pa.C.S. §2710, on the ground that the Act amending the section changed its original purpose during the course of legislation, in violation of Article III, Section 1. On July 23, 2008, the Pennsylvania Supreme Court, per curiam order, affirmed the order of the Commonwealth Court in Marcavage and adopted the opinion by Judge Colins in that case as the opinion of the Supreme Court.
Pennsylvanians Against Gambling Expansion Fund v. Commonwealth, 877 A.2d 383 (Pa. 2005): per Chief Justice Cappy, a unanimous Court upheld most of the provisions of the Pennsylvania Gaming Act providing for legalized gambling in Pennsylvania against a variety of constitutional challenges to the process by which the bill became law, including single subject and changes in original purpose challenges. The most important provision invalidated concerned the delegation of authority to the Gaming Control Board to consider local zoning laws but not to be bound by them; the Court held that this provision constituted an unconstitutional delegation of legislative authority because the permitted consideration was standardless.
Section 3: Single Subject Rule
Although there is a strong presumption in the law that legislative enactments do not violate the Constitution, legislation must still comport with the requirements set forth in Article III of the Pennsylvania Constitution. The purpose of the single subject rule is to curb legislative “logrolling”, or attempts to hide unpopular legislation by attaching it to a popular bill that is likely to pass.
Commonwealth v. Neiman, 5 A.3d 353 (Pa. Super. 2010): the court, per Ford Elliott, P.J., held that a bill containing Megan’s Law and Deficiency Judgment Act amendments violated the single subject rule of Article III, Section 3, but that the proper relief is to preserve Megan’s Law by striking provisions of bill not germane to regulation of sexual predators.
**On August 10, 2011, in granting a petition for allowance of appeal, the court rephrased the issue for clarity: whether, if Act 152 violates the single subject rule of Article III, Section 3 of the Pennsylvania Constitution, Meghan’s Law can be sustained by severance of the remaining portions of Act 152 of 2004. Com. v. Neiman, 2011 WL 3484442 (Pa. 2011).
Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009): the Court, per Castille, J., upheld the State legislature’s amendment of the First Class City Home Rule Act (limiting standing in zoning appeals to remove taxpayer standing that had been granted by Philadelphia’s Zoning Ordinance); the Court held that access to the courts is not a an issue of purely local concern, but a matter of statewide concern, and that the amendment did not violate the single subject rule.
DeWeese v. Cortes, 906 A.2d 1193 (Pa. 2006): in a unanimous per curiam order, without opinion, the Pennsylvania Supreme Court affirmed the order of Commonwealth Court, which had held that the bill that codified the DNA Act and amended the Judicial Code section relating to comparative negligence violated the single subject rule of the Pennsylvania Constitution.
City of Philadelphia v. Commonwealth, 838 A.2d 566 (Pa. 2003): per Saylor, J., the Court held that legislation that pertained to a variety of unrelated subjects, involving local government, was enacted in violation of the single subject rule of the Pennsylvania Constitution.
Section 4: Consideration of Bills
Washington v. Department of Public Welfare of Commonwealth, 188 A.3d 1135 (Pa. 2018), per Todd, J., the Court held that the manner in which Act 80 was passed violated Article III, Section 4 of the Pennsylvania Constitution. The House considered the Senate’s version of the bill only once, thus the Pennsylvania Constitution was clearly violated.
Section 9: Action on Concurrent Orders and Resolutions
Wolf v. Scarnati, 2020 WL 3567269 (Pa. July 1, 2020), per Wecht, J., the Pennsylvania Supreme Court found an implied presentment requirement in the statute governing the authority of Governor Wolf. Thus, Senate Republican leaders’ resolution ordering Governor Wolf to terminate his COVID-19 disaster emergency required presentment to the governor for approval or veto to avoid violating Article III, Section 9 of the Pennsylvania Constitution. The Court additionally held that Article I, Section 12 does not grant the General Assembly power to unilaterally suspend laws. All suspensions of law must adhere to the requirements of presentment, an essential component of the checks and balances system of the Constitution.
Section 11: Appropriations Bills
The Hospital & Healthsystem Association of America v. Department of Public Welfare, 888 A.2d 601 (Pa. 2005): per Baer, J., the Court held that under the test enunciated in Biles v. DPW, 403 A.2d 1341 (Pa. Cmwlth. 1979), which the Court formally adopted, an appropriation bill contained invalid substantive language in violation of the Pennsylvania Constitution.
Section 14: Public Education
William Penn Sch. Dist. v. Pennsylvania Dep’t of Educ., No. 587 M.D. 2014, 2018 WL 2090329 (Pa. Commw. Ct. May 7, 2018), per Simpson, J., the Pennsylvania Commonwealth Court ruled that a lawsuit challenging the state’s school funding as a violation of the Pennsylvania Constitution can move forward. The suit alleges that the state’s school funding system violates the Pennsylvania Constitution due to the significant underfunding and gross disparities in allocations that penalize students in low-wealth districts.
Hazelton Area School District v. Zoning Hearing Board, 778 A.2d 1205 (Pa. 2001): the Court held that under Article III, Section 14 of the Pennsylvania Constitution, which provides that “the General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools”, school district power cannot be exercised at the expense of the health, safety and general welfare of the community; the school district’s statutory authority to rent its recreational fields for baseball games and practices has to be exercised consistently with local zoning regulations.
Marrero v. Commonwealth, 739 A.2d 110 (Pa. 2000): per Chief Justice Flaherty, with three Justices concurring in the result, the Court affirmed the dismissal by the Commonwealth Court of a challenge brought under Article III, Section 14, to the Pennsylvania public education funding system. The Court agrees that such a challenge raises a nonjusticiable political question. [The same day, the Court, in a per curiam order, affirmed the Commonwealth Court’s dismissal of another school funding case.]
Section 26: Compensation
Denbow v. Borough of Leetsdale, 729 A.2d 1113 (Pa. 1999): in a matter of first impression, the Court held that Article III, Section 26 (prohibiting “extra compensation” to public employees) applies to municipalities, rather than just to the General Assembly, and prevents the Borough from granting the pay increases at issue in the case.
Section 32: Special Legislation
Marcellus Shale Coal. v. Dep’t of Envtl. Prot., No. 573 M.D. 2016, 2018 WL 4009286 (Pa. Commw. Ct. Aug. 23, 2018), per Wojcik, J., the court upheld the Department of Environmental Protection’s process for considering a shale gas well’s impact on public natural resources before granting a drilling permit, adhering to the Pennsylvania Constitution’s requirement that the court consider the impact of wells on public natural resources. However, the court also limited the definition of “public resource,” finding that extending the definition to include playgrounds and common areas at public schools would result in a definition that is “vague, overly broad, and unpredictable.”
Pennsylvania Turnpike Com. v. Commonwealth, 899 A.2d 1085 (Pa. 2006): per Castille, J., the Court held that Act that mandated the Turnpike Commission to engage in collective bargaining with first-level supervisors, but did not require any other agency to do so with regard to its first-level supervisors, is a special law in violation of Article III, Section 32 of the Pennsylvania Constitution.
Harrisburg School District v. Zogby, 828 A.2d 1079 (Pa. 2003): per Saylor, J., the Court reversed an earlier Commonwealth Court decision, and held that a Pennsylvania statute allowing mayors of medium-sized cities to assume control of failing school districts violated neither Article III, Section 32 (prohibiting special legislation) nor Article IX, Section 3 (right of voters to adopt municipal form of government).
Article IV. The Executive
The Pennsylvania Constitution provides for a Governor to exercise executive power. There are numerous important ways in which Executive powers under the Pennsylvania Constitution differ from the Presidential powers provided by the United States Constitution. For example, under State law, the Governor has a line-item veto, but the President is expressly prohibited from exercising a line-item veto.
Section 2: Duties of Governor; election procedure; tie or contest.
Markham v. Wolf, 147 A.3d 1259 (Pa. Commw. Ct. 2016), per Simpson, J., the court held that Gov. Wolf’s executive order that granted direct care workers limited collective bargaining rights violated the confines of a governor’s authority to issue executive order under Shapp v. Butera, 348 A.2d 910, 914 (Pa. Commw. Ct. 1975). Gov. Wolf claimed the executive order was proper under directing subordinate officials the duties of the executive branch, however the court held that the order alters the employment relationship between direct care workers and their patients in the patients’ home.
Section 4.1: Attorney General
Robinson Twp., Washington Co. v. Commonwealth, 2012 WL 1429454 (Not selected for publication in the Atlantic Reporter) (Pa. Cmwlth. May 21, 2012) (No. 284 M.D.2012): per Quigley, J., the Court denied two petitions to intervene with regard to an action challenging the constitutionality of Act 13 under the Pennsylvania constitution. With regard to the petition by two Pennsylvania legislators, the Court held that they did not have they have no legally enforceable interest as required by Rule 2327(4) because legislative intent will be addressed by the court as necessary as a result of the Statutory Construction Act of 1972 and traditional methods of statutory construction, even if the Attorney General chooses not to defend the Act based on statutory intent. With regard to the petition from members of the oil and gas industry, although they have a legally enforceable interest in the form of land ownership and leaseholds, these interest have no bearing on the Constitutionality of the Act and this interest is adequately represented by the Attorney General, whose duty it is to defend the act.
Section 6: Disqualifications for Office
Lawless v. Jubelirer, 811 A.2d 974 (Pa. 2002): the Pennsylvania Supreme Court per curiam, without opinion and without oral argument, affirmed the order of the Commonwealth Court allowing Robert Jubelirer to serve simultaneously as Lieutenant Governor, State Senator and President Pro Tempore of the Pennsylvania Senate. (Zappala and Nigro, J.J. dissented from both the decision and from the failure to grant oral argument).
Section 9. Pardoning Power, Board of Pardons
Commonwealth v. Michael, 56 A.3d 899 (Pa. 2012): in a Per Curiam decision, the Court held that the Court of Common Pleas and the Commonwealth Court were without authority under Section 9545(c) of the Post Conviction Relief Act to enter a stay of execution in order to allow Applicant more time for evaluation for medical experts and interviews with corrections officials in order to ensure a more complete hearing before the Board of Parsons. There is no Constitutional right to clemency, so procedural due process is very limited. Absent arbitrary and capricious conduct in the way the clemency process is being administered, intervention by the Court would be a violation of the separation of powers doctrine.
Section 16: Partial Disapproval of Appropriation Bills
Jubelirer v. Rendell, 904 A.2d 1030 (Pa. Cmwlth. 2006): per Colins, .J., an unanimous court held that the Governor may use line item veto to remove substantive riders from appropriation bills as opposed to restricting the veto power to amounts of appropriations: “if the General Assembly can put it in, the Governor can take it out.”
Article V. The Judiciary
In re Bruno, 101 A.3d 635 (Pa. 2014): per Castille, C.J., held that the Pennsylvania Supreme Court has supervisory power to order interim suspension without pay of sitting jurists and exclusive jurisdiction at King’s Bench to resolve the instant dispute, which implicated supervisory actions of the court relating to personnel of the Unified Judicial System. The Court also held that both the Pennsylvania Supreme Court and the Court of Judicial Discipline had authority to issue orders of interim suspension and to impose sanctions upon jurists and to the extent that orders of the Pennsylvania Supreme Court and the Court of Judicial Discipline ultimately or necessarily conflicted, the Supreme Court’s orders were supreme and controlling.
Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014): per Donohue, J., upheld the convictions and most of the penalties against former Pennsylvania Supreme Court Justice Joan Orie Melvin. Among many the many issues involved in this opinion of two appeals be the former Justice, the court held that criminal charges against Orie Melvin were not an unconstitutional infringe upon the Judiciary’s exclusive power to supervise the courts under Article V, § 10 of the Pennsylvania Constitution because her conduct was not “that is already the subject of regulation by the Supreme Court.” In addition, the court held that even though the warrant authorizing seizure of defendant’s personal e-mails was overbroad under Article I, , it nonetheless was harmless error because “the emails were not prejudicial to Orie Melvin or the prejudice was de minimis, or because they were cumulative of other properly admitted evidence.” Also, the court held that Article I, § 9 was not violated by requiring Orie Melvin to write apology letters once “her direct appeal has been decided.”
Section 1: Unified Judicial System
Pennsylvania State Association of County Commissioners v. Commonwealth, 52 A.3d 1213 (Pa. 2012): per Castille, C.J., held that increased inter-branch cooperation since the Interim Report and indication of further cooperative efforts on the part of the General Assembly “for further evolution toward a better, administratively unified judicial system” warranted the Courts taking no further action to require any further specific legislative action. The Court denied the motion for mandamus relief to enforce the Court’s order of July 26, 1996 to compel funding of the unified judicial system by the General Assembly and to implement the Report of the Master. The Court relinquished jurisdiction over this issue.
In re Randy Buchanan, 880 A.2d 568 (Pa. 2005): per Justice Castille, a unanimous Court held that courts have an inherent power to seal autopsy reports, which are otherwise required to be disclosed to the public under the Pennsylvania Coroner’s Act, when the Commonwealth demonstrates “that release of the report would substantially hinder an ongoing criminal investigation.”
Section 10: Rule-Making Power
In addition to judicial power similar to that exercised by the federal courts, the Pennsylvania Supreme Court is granted a procedural rulemaking power in Article V, Section 10. All laws inconsistent with judicially prescribed rules are to be suspended. The Court has also asserted the exclusive power to supervise the bar and the employees and officials of the Judicial Branch.
In re Estate of McAleer, 2021 WL 1289675 (Pa. 2021) (April 7, 2021), Under its constitutional authority to determine the scope of common-law privileges, the Pennsylvania Supreme Court, per Wecht, J., held that the trustee had a duty to submit to discovery unredacted invoices from the law firms that the trustee retained. The beneficiaries of a revocable living trust filed an action against the trustee, who was also a beneficiary of the trust, alleging that the trustee paid expenses in administration of the trust that were unreasonable. During discovery, the beneficiaries requested unredacted copies of invoices from law firms retained by the trustee to respond to the claims raised by the beneficiaries, which the trustee did not to provide.
Commonwealth v. Olivo, 127 A.3d 769 (Pa. 2015): per Baer, J., the Court held that a statute allowing expert testimony regarding victims’ responses to sexual violence does not violate the Supreme Court’s exclusive control over judicial procedures because the statute governs a substantive rule of evidence and does not violate the Court’s Article V, Section 10(c) authority over procedure.
City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012): per Pellegrini, J., held that the Office of Open Records (OOR) does not have jurisdiction under the Right-to-Know Law (RTKL) to compel disclosure of documents relating to City of Pittsburgh settlement negotiations because such negotiations are efforts to settle litigation, and litigation falls under the sole jurisdiction of the Supreme Court over the practice of law under Article V, Section 10(c). Any provision of the RTKL that purports to compel disclosure of information related to the representation of a client, which is regulated by the Supreme Court, is an unconstitutional infringement on the Court’s exercise of authority under the State Constitution. Covey, J., filed a concurring and dissenting opinion in which he agrees that the materials were not subject to disclosure, but bases this on the long-standing public policy against disclosing documents relating to settlement agreements rather than holding that the OOR lacks jurisdiction. Simpson, J. and Brobson, J. dissented but did not file opinions.
Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007): in a plurality opinion joined by Castille and Baldwin, JJ., Justice Fitzgerald held that the Unfair Trade Practices and Consumer Protection Law does not apply to an attorney’s conduct in distributing settlement proceeds because to apply consumer protection statutes to attorney misconduct would “encroach upon this Court’s exclusive power to regulate the practice of law” granted by the Pennsylvania Constitution. (Chief Justice Cappy, joined by Baer, J., concur solely on statutory grounds; Justices Saylor and Eakin dissented).
Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006): per Newman, J., the Court held that the Superior Court exceeded its authority by ordering recusal of the trial judge when no party had filed a motion to recuse; such an action interferes with the administrative and supervisory functions of the Supreme Court.
Payne v. Commonwealth Department of Corrections, 871 A.2d 795 (Pa. 2005): in prison condition litigation the Court, per Chief Justice Cappy, held that provision of the Prison Litigation Reform Act (PLRA) providing requirements for dismissal of prison conditions litigation and PLRA provision providing for dismissal based on abusive litigation did not unconstitutionally interfere with Supreme Court’s rulemaking authority; the court held that PLRA provision providing for automatic dissolution of preliminary injunction and PLRA provision requiring prisoner to pay costs when granted in forma pauperis status were unconstitutional as inconsistent with Supreme Court’s rulemaking authority; the court also held that criminal provisions of obscenity law and department regulations banning obscene material were not unconstitutional.
Abdulhay v. Bethlehem Medical Arts, L.P., 425 F. Supp. 2d 646 (E. D. Pa. 2005): per Gardner, J. the court held that a Pennsylvania Rule of Civil Procedure can be procedural for purposes of the Pennsylvania Supreme Court’s constitutional authority to issue only procedural rules, but substantive for purposes of applying the rule in federal court pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938); the contrary argument “confuses two very different issues.”
Shaulis v. Pennsylvania State Ethics Commission, 833 A.2d 123 (Pa. 2003): a closely divided court held the State Ethics Act unconstitutional to the extent that it bars government employees who are also attorneys from representing clients before the employee’s former employer for a period of one year after the employee leaves that employment. (Justice Lamb represented the deciding fourth vote for the majority).
Office of Disciplinary Counsel v. Jepson, 787 A.2d 420 (Pa. 2002): the Pennsylvania Supreme Court has the authority to disbar a district justice for misconduct in the practice of law pursuant to Article V, Section 10(c) of the Pennsylvania Constitution, which grants the Supreme Court the exclusive power to supervise the conduct of attorneys; the Court further held that the fact the Court of Judicial Discipline is also authorized to discipline judicial officers pursuant to Article V, Section 18 of the Pennsylvania Constitution in no way abrogates the constitutionally conferred powers of the Supreme Court in disciplinary cases.
Gmerek& Artz v. State Ethics Com., 807 A.2d 812 (Pa. 2002): an equally divided Court held unconstitutional, the Lobbying Disclosure Act, as violation of the Pennsylvania Supreme Court’s authority to regulate professional conduct of attorneys. (Castille, J., and Zappala, J., joined by Cappy, J., for affirmance; Saylor J., joined by Nigro, J., and Newman, J., for reversal).
L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000): per McGinley, J., the court en banc held that State Ethics Commission lacks authority to investigate a chief adult probation officer of the Court of Common Pleas because the Pennsylvania Supreme Court has exclusive authority to supervise the Judicial Branch under Article V, Section 10 of the Pennsylvania Constitution.
Commonwealth ex rel. Unified Judicial System v. Vartan, 733 A.2d 1258 (Pa. 1999): “deliberative process privilege” held to bar subpoena of former Chief Justice in civil suit for breach of contract arising out of construction and lease of courthouse.
Commonwealth v. Stern, 701 A.2d 568 (Pa. 1997): per Zappala, J., the Court held that criminal statute prohibiting payment for referrals violated separation of powers, as the Pennsylvania Supreme Court has exclusive authority to supervise conduct of attorneys.
Court of Common Pleas v. Pennsylvania Human Relations Commission, 682 A.2d 1246 (Pa. 1996): in a matter of first impression, the Court, per Nigro, J., held that PHRC may not adjudicate race discrimination claim by terminated court employee, under the separation of powers doctrine.
Kremer v. State Ethics Commission, 469 A.2d 593 (Pa. 1983): per Zappala, J., the Court held financial disclosure provisions of the Ethics Act, insofar as they are applied to judges, unconstitutional as an infringement on the Supreme Court’s power to supervise courts under Article III, Section 10 of the Pennsylvania Constitution.
Section 13(b): Vacancies to be Filled
Brady v. Cortes, 873 A.2d 795 (Pa. Cmwlth. 2005): the court held that pursuant to Article V, Section 13(b) of the Pennsylvania Constitutuion, vacancy in the Court of Common Pleas is to be filled by election rather than appointment where primary and election for other open seats on the court are already scheduled to be heard; the court noted that “the ‘ten month’ provision of Article V, Section 13(b) is not absolute. . . .”
Section 16(a): Compensation
Stilp v. Commonwealth, 905 A.2d 918 (Pa. 2006): Castille, J., for five Justices, upheld the July 7, 2005 pay raise and partially upheld the November 16, 2005 repeal of the pay raise, except for the repeal of the judicial increase, which was held to violate Article V, Section 16(a) of the Pennsylvania Constitution.
Section 16(b): Mandatory Retirement Age
Sprague v. Cortes, 145 A.3d 1136 (Pa. 2016): per curiam, the Court deadlocked as to whether the ballot question about the judicial retirement age is misleading. Justice Baer, granting defendant’s application for summary relief, stated that the ballot question is free of legal impediment and that it is not for the Court to alter it or to remove it from the electorate’s consideration. Justice Wecht, writing in support of granting plaintiff’s application for summary relief, stated that the ballot question before the Court cannot survive judicial scrutiny regardless of the standard under which it is assessed.
Section 17: Prohibited Activities
In re Cicchetti, 743 A.2d 431 (Pa. 2000): the Court held that in the future, court-appointed employees may not participate in judicial retention elections campaigns.
Section 18: Judicial Discipline
In re Merlo, 58 A.3d 1 (Pa. 2012): per Todd, J., the Court affirmed the findings and sentence given by the Court of Judicial Discipline in a case where the judge: was habitually tardy or called off late; abusive to counsel and litigants; did not follow proper procedure for landlord tenant cases; and mishandled truancy cases. This brought the judicial office into disrepute under Article V, Section 18(d)(1). The fact that the removal from office and a lifetime ban from holding judicial office in the state was a harsher sentence than those given to judges with similar violations did not make the sentence illegal since each case has different mitigating and aggravating circumstance to be considered. Removal from office is an appropriate sentence under Article V, Section 18(d)(1) for bringing the office into disrepute.
In re Melvin, 57 A.3d 226 (Pa. Ct. Jud. Disc. 2012): per Curran, J., suspended Justice Joan Orie Melvin without pay and held that the rights set out in Article V, Section 18(b)(5) for final orders of sanctions are not available for interim proceedings provided for in Article V, Section 18(d)(2). This constitutional scheme does not offend “any overweening notion of due process” derived from the United States Constitution or the Pennsylvania Constitution. The State Constitution specifically bestows upon the Court of Judicial Discipline the authority to suspend a judge without pay for an interim period. The drafters provided for interim proceedings to take place between the filing of charges against a judicial officer and the final determination of sanctions in order to safeguard the integrity of the judicial system. McGinley, J., dissented and would have left the May 22, 2012 order in place suspending Justice Orie Melvin with pay.
Article VI. Public Officers
Section 7: Removal of Civil Officers
Burger v. School Board of the McGuffey School Dist., 923 A.2d 1155 (Pa. 2007): per Justice Castille, the Court held that Article VI, Section 7 (providing for removal of civil officers) does not confer absolute authority of removal upon appointing bodies and, therefore, state statute governing, and limiting, removal of superintendents of schools is not unconstitutional.
South Newton Township Electors v. South Newton Township Supervisors, 838 A.2d 643 (Pa. 2003): the Court held unconstitutional Section 503 of the Second Class Township Code, 53 P.S., Section 65503 (which provided for the “recall of a township supervisor”), as violation of Article VI, Section 7 of the Pennsylvania Constitution (providing for the “exclusive method of removal of elected officials”).
Article VIII. Taxation and Finance
Section 1: Uniformity of Taxation
Sands Bethworks Gaming, LLC v. Pennsylvania Dep’t of Revenue, 207 A.3d 315 (Pa. Apr. 26, 2019), per Saylor, J., the court held the Pennsylvania Race Horse Development and Gaming Act unconstitutional under the uniformity clause of the Pennsylvania Constitution. The Act required casinos to pay a supplemental assessment fee on slot-revenue machines.
Nextel Communications v. Dept. of Revenue, 171 A.3d 682 (Pa. 2017), per Todd, J., the Court held that the net-loss carryover provision in the revenue code was unconstitutional because it allows some smaller corporations to pay no corporate income tax. Additionally, the Court found that severing the $3,000,000 flat deduction, rather than striking all caps on the deduction or eliminating the deduction entirely, is the proper remedy.
Downingtown Area School District v. Chister County Board of Assessment Appeals, 913 A.2d 194 (Pa. 2006): per Saylor, J., striking down statutory preclusion of tax uniformity challenge if common level ratio is within 15% of estimated predetermined ratio and permitting taxpayer to introduce evidence of assessment-to-value ratio of similar properties. (Chief Justice Cappy, joined by Justice Eakin, dissented).
City of Allentown v. MSG Associates, 747 A.2d 1275 (Pa. Cmwlth. 2000): upholds different tax rate on services than sales against uniformity challenge under Article VIII, section 1. The Court expressly overrules Commonwealth v. Mercadante, 676 A.2d 1307 (Pa. Cmwlth. 1996). The requirement that all taxes upon the same class of subjects shall be uniform is arguably the most important provision in the Pennsylvania Constitution. One of its consequences is that a progressive State income tax is unconstitutional. Another consequence of the requirement of uniformity is that there must be constitutional authority for the government to grant any tax breaks. Thus, the numerous exemptions and deductions with which the student is familiar from federal taxation are at least suspect, if not unconstitutional, under the Pennsylvania Constitution. One particular source of recent litigation has been the scope of the Constitution’s permission to grant tax exemption to “[i]nstitutions of purely public charity.”
Sectionn §2(v): Institutions of Public Charity Exempt from Taxation
Alliance Home of Carlisle, PA v Board of Assessment Appeals, 919 A.2d 206 (Pa. 2007): per Castille, J., the Court reversed the denial of tax exempt status to a parcel of land containing an independent living facility owned by a licensed continuing care retirement community. As the courts below had held that the parcel must independently satisfy the constitutional and statutory standards for a purely public charity, the Court holds instead that the proper test of tax exemption for a parcel of land owned by an institution of purely public charity and closely connected to its charitable purpose, is whether the parcel is actually and regularly used for the purposes of the institution (or the statutory test that is the equivalent) and not whether the parcel would independently satisfy constitutional and statutory standards for tax exemption.
In Re Appeal of Order of St. Paul the First Hermit, 873 A.2d 31, (Pa. Cmwlth. 2005): the Commonwealth Court in holding that only portions of the Visitor’s Center and Retreat House associated with the Shrine of Our Lady of Czestochowa were entitled to tax exemption as “[a]ctual places of regularly stated religious worship” the panel reiterated the holding of St. Aloysius R.C. Church v. Fayette County Board of Assessment Appeals, 849 A.2d 293 (Pa. Cmwlth. 2004) that places of religious worship may not seek tax exemption under more expansively applied “purely public charity” exemption unless facilities operate independently.
Wilson Area School District v. Easton Hospital, 747 A.2d 877 (Pa. 2000): the Court upheld the tax exempt status of the hospital as “entirely free from a private profit motive” because all distributions of surplus revenue were made either with expectation of repayment or in order to increase the efficiency of hospital operations.
Hospital Utilization Project v. Commonwealth, 487 A.2d 1306 (Pa. 1985): the Court held that in order to qualify as an “institution of public charity” under Article VIII, an institution must:
1) advance a charitable purpose;
2) donate or render gratuitously a substantial portion of its services;
3) benefit a substantial and indefinite class of persons who are legitimate subjects of charity;
4) relieve the government of some of its burden; and
5) operate entirely free from private profit motive.
It is still not clear whether most hospitals and universities qualify for tax exemption under this standard. See St. Margaret Seneca Place v. Board of Property Assessment, 640 A.2d 380 (Pa. 1994).
Section 2(a)(i): Exemptions of Places of Worship
Wesley United Methodist Church v. Dauphin County Board of Assessment, 889 A.2d 1180 (Pa. 2005): per Eakin, J., the Court held that a church parking lot may be granted tax exempt status as an “[a]ctual place of regularly stated religious worship…” if ” reasonably necessary to the existence of the church…”; over Chief Justice Cappy’s dissent, the majority rejected the categorical exclusion of church parking lots from tax exemption manifested in Second Church of Christ of Philadelphia v. City of Philadelphia, 157 A.2d 54 (Pa. 1959).
Section 10: Audit
Stilp v. Commonwealth, 898 A.2d 36 (Pa. Cmwlth. 2006): per Pellegrini, J., the court held that the Auditor General lacks authority to audit the spending accounts of the General Assembly for reasons of the separation-of-powers doctrine and that the current legislative auditing system satisfies the requirements of Article VIII, Section 10. [It should be mentioned that in footnote 9 of the opinion, Judge Pellegrini cites this website for the content of the Debates of the 1968 Constitutional Convention and notes that other constitutional source material can be found on this website as well.]
Article IX. Local Government
Section 1: Local Government
Nutter v. Dougherty, 938 A.2d 401 (Pa. 2007): in a thorough discussion of Pennsylvania preemption jurisprudence, the Court, per Baer, J., upheld Philadelphia campaign contribution limits for local races despite State legislation in the area. (Cappy, C.J., joined by Fitzgerald, J., dissented).
Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996): per Flaherty, J., the Court held that attempts to regulate assault weapons in Philadelphia and Pittsburgh were preempted by State law.
Section 2: Home Rule
Hartman v. City of Allentown, 880 A.2d 737 (Pa. Cmwlth. 2005): per Jubelirer, J., the unanimous panel held that amendment to city’s human rights ordinance prohibiting discrimination on the basis of sexual orientation or gender identity was valid in that the ordinance was within the city’s police powers, did not violate the home rule statute and was not preempted by the Pennsylvania Human Relations Act.
Devlin v. City of Philadelphia, 862 A.2d 1234 (Pa. 2004): per Nigro, J., the Court held that Philadelphia’s designation of Life Partnership as a marital status is not preempted by the State Marriage Law nor otherwise beyond the City’s authority under its home rule charter; city could lawfully extend employee benefits to employees’ same-sex life partners; but city could not prohibit discrimination based on life partner status where person who neither lives nor works in the city are eligible to register as life partners; and city’s realty transfer tax exemption for life partners violated the Uniformity Clause of Article VIII, Section 1 of the Pennsylvania Constitution.
Section 12: Philadelphia Debt
Consumers Education and Protective Association, International, Inc. v. City of Philadelphia, 808 A.2d 266 (Pa. Cmwlth. 2001): because financial obligations are limited to currently available revenues, Philadelphia ordinances authorizing City to finance new professional baseball and football stadiums do not represent “debt” and thus do not violate debt limit contained in Article IX, Section 12 of the Pennsylvania Constitution.
Article XI. Constitutional Amendments
Another way in which the Pennsylvania Constitution differs from the federal Constitution is the relative ease of amending the State Constitution; however, Article XI provides detailed procedures for proposing constitutional amendments. Most importantly, Article XI requires “When two or more amendments shall be submitted they shall be voted upon separately.” For the legislative history of the 1968 Amendments, including relevant case decisions interpreting the constitutionality of Amendments to the Pennsylvania Constitution, see the 1968 Amendments.
Article I, § 6: Right to Trial by Jury
Commonwealth v. Tharp, 754 A.2d 1251 (Pa. 2000): per Nigro, J., the Court unanimously upheld the 1998 constitutional amendment of Article I, Section 6, providing the Commonwealth in criminal case the same right to a jury trial as the defendant.
Article I, § 9: Confrontation, Self-incrimination and Due Process
Bergdoll v. Commonwealth, 874 A.2d 1148 (Pa. 2005): the Court upheld the constitutional amendments to Article I, Section 9 (replacing the language “meet the witnesses face-to-face” with “be confronted with the witnesses against him”) and Article V, Section 10 (allowing for legislative authorization of closed circuit television in certain child sex abuse cases).
Bergdoll v. Kane, 731 A.2d 1261 (Pa. 1999): in affirming the opinion of the Commonwealth Court at 694 A.2d 1155 (Pa. Cmwlth. 1997), the Pennsylvania Supreme Court struck down a constitutional amendment to Article 1, Section 9 (which was approved by the voters on November 7, 1995), on the ground that the amendment, in effect, constituted two amendments that should have been voted on separately. The Supreme Court subsequently reversed, by a one sentence order in Bergdoll v. Commonwealth, 874 A.2d 1148 (Pa. 2005), which affirmed the Commonwealth Court’s 2004 decision that the removal of the “face-to-face” language from the Pennsylvania Constitution to facilitate testimony by child witnesses did not per se constitute an infringement of the Sixth Amendment of the United States Constitution.
Article I, § 14: Bailable Prisoners
Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005): per Justice Eakin, the Court upeld amendments to Article I, Section 6 (Commonwealth right to trial by jury) and Article I, Section 14 (bailable prisoners) adopted by the voters at the general election of 1998. In addition to other holdings, a four-Justice majority adopted the “subject matter test” as the proper standard by which to apply the separate vote requirement of Article IX, Section 1. Thus, the proposed addition of two non-bailable categories to Section 14 (authorized life imprisonment and those prisoners for whom imprisonment alone will reasonably assure public safety) could be presented to the voters in one amendment. (Chief Justice Cappy, joined by Justices Nigro and Baer, dissented from this portion of the opinion).
Article II, § 17: Legislative Reapportionment Commission
Mellow v. Pizzingrilli, 800 A.2d 350 (Pa. Cmwlth. 2002): the court upheld the amendment of Article II, Section 17 (providing for election of a new State Senator when reapportionment creates a Senate district without a resident State Senator) against various challenges to amendment process, including holding amendment was not, in and of itself, two separate amendments, and did not violate single amendment rule; Attorney General’s plain English statement regarding constitutional amendment on ballot was proper, even though two joint resolutions of proposed amendments did not contain identical language.
Article IV, § 9: Board of Pardons
Pennsylvania Prison Society v. Commonwealth, 776 A.2d 971 (Pa. 2001): in reversing the Commonwealth Court decision at 727 A.2d 632 (Pa. Cmwlth. 1999), the Pennsylvania Supreme Court upheld the amendment of Article IV, Section 9 (the membership of the Board of Pardons) which was approved by voters on November 7, 1995, against the claim that the amendment violated Article IX, Section 2 separate vote requirement.