HARRISBURG – A 5-2 majority of the Supreme Court of Pennsylvania recently ruled that a joint resolution from state lawmakers to end the emergency declaration put in place by Gov. Tom Wolf in response to the coronavirus pandemic was null and void, since it had not been reviewed by Wolf for either his approval or veto.
The judiciary issued the ruling on July 1, with Supreme Court justices David N. Wecht, Max Baer, Debra Todd and Christine Donohue constituting the majority opinion, with Justice Kevin M. Dougherty filing a separate concurrence and dissent, and Chief Justice Thomas G. Saylor filing a dissent joined by Justice Sallie Updyke Mundy.
Wecht authored the majority opinion, stating the Pennsylvania Constitution’s provision in Article III, Section 9, that most laws and resolutions be provided to the governor for either approval or veto did in fact apply to House Resolution 836, which called upon Wolf to immediately end the state of emergency declaration and its associated restrictions.
Citing text which he said has been virtually unchanged since 1790, Wecht said only resolutions that deal with strictly legislative matters such as adjournment, the body’s internal affairs or resolutions calling for constitutional amendments, are exempt from the requirement to present to the governor for approval or veto.
“Our Constitution is clear: All concurrent resolutions, except in three narrow circumstances…must be presented to the governor for his approval or veto. To allow a concurrent resolution that does not fit into one of the exceptions to take effect without presentment would be to authorize a legislative veto,” Wecht said.
“Because the General Assembly intended that H.R. 836 terminate the governor’s declaration of disaster emergency without the necessity of presenting that resolution to the governor for his approval or veto, we hold, pursuant to our power under the Declaratory Judgments Act, that H.R. 836 is a legal nullity.”
The bicameral Pennsylvania General Assembly had approved H.R. 836 in June and when Wolf took no action regarding it, Senate President Joseph B. Scarnati III, Senate Majority Leader Jake Corman and the Senate Republican Caucus filed action in the Commonwealth Court of Pennsylvania on June 10, charging Wolf with refusing to comply with the resolution and to compel him to respond.
One week later, the state Supreme Court utilized its King’s Bench provision to assume oversight of the case, as it dealt with a constitutional question of imminent priority.
Wolf had issued a declaration for a state of emergency in the beginning of March, as the first coronavirus cases began to appear in Pennsylvania. The governor then followed the initial order with another that stated all non-life sustaining businesses statewide would close down, in accordance with virus transmission prevention guidelines for social distancing.
Wolf then renewed the state of emergency declaration in early June, as Pennsylvania’s Emergency Management Services Code only provides such orders to last for 90 days at a time.
Republican lawmakers supporting H.R. 836 had argued that 35 Pa. C.S.A. Section 7301(c) in the Emergency Management Services Code pertaining to gubernatorial authority during disaster emergencies authorized the General Assembly to have the power to end such an emergency declaration on its own, but the majority of justices in this matter did not share that viewpoint.
Though calling it “reasonable”, the majority said other interpretations of that rule also existed and in such a circumstance, courts should instead take a stance that would not challenge or find itself in conflict with the Pennsylvania Constitution.
“If the General Assembly intended to give itself the ability to terminate a state of disaster emergency unilaterally, there would have been no need to involve the governor in the equation at all,” Wecht said.
“The requirement in Section 7301(c) that the governor must act to end the disaster emergency is a sign that the General Assembly understood that its concurrent resolution would be presented to the governor.”
In a concurring and dissenting opinion, Dougherty agreed with the Court majority that H.R. 836 should have been presented to Wolf, but added Section 7301(c) was “unconstitutional” and “unsalvageable” for its apparent effort to avoid the process of presentation to the governor.
“To recognize the legislature’s intent in this regard is to effectively answer the question of severability: Because the legislature operated under the assumption it could end a state of disaster emergency without presentment, and the majority of this Court now reaches the opposite conclusion, ‘it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one,” Dougherty said.
“I would hold Section 7301(c) of the Emergency Code violates the Pennsylvania Constitution and the offending portion of the statute may not be severed. We are left with no choice but to declare the statute unsalvageable.”
Writing a dissent for himself and Mundy, Saylor referenced larger issues of checks and balances between Pennsylvania’s branches of government at stake in the matter, pitting Wolf’s ability to declare emergencies and acquire additional powers in contrast to the state legislature’s ability to check, balance and remove those same powers.
“The relevant terms of Section 7301(c) comprise, in effect, a legislative veto relative to a sweeping delegation of legislative power, which in my view does not bear the essential relationship to conventional legislation such as would have been within the framers’ contemplation,” Saylor said.
“In this regard, I simply cannot envision that the framers of the Pennsylvania Constitution contemplated that the governor could be invested with a panoply of exceptional powers – including the delegated power to suspend laws and commandeer private property – but that the Legislature nonetheless would be powerless to implement a counterbalance that was not then subject to the chief executive’s own veto power.”
In response to the ruling, Pennsylvania Senate Republicans said in a statement they were beginning a process to amend the state constitution. Currently, a two-thirds majority in both chambers of the General Assembly would be needed to override a veto from Wolf.
Lawmakers who were parties to the instant matter voiced their disagreement with the Court’s ruling.
“The ruling by the Supreme Court fails to uphold the Constitutional balance of power between the three, co-equal branches of government. We understand the need for a temporary suspension of civil liberties under dire circumstances – something we agreed needed to happen initially as we worked to flatten the curve,” Scarnati said.
“However, while we work to protect lives, we cannot continue to disregard the civil liberties of Pennsylvanians. Our government was established to be of the people, by the people and for the people. With this ruling, the Court has elected not to uphold the foundation of our democracy.”
Corman agreed, calling the ruling a “titanic shift in power” that “essentially granted the governor king status” and “returned an unchecked monarchy to Pennsylvania.”
In contrast, Wolf expressed support of the Court’s ruling and its decision’s assistance to the state to continue to protect businesses, workers and residents of Pennsylvania, according to a spokesperson for the governor.
Supreme Court of Pennsylvania case 104 MM 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com