Fumo v. Pennsylvania Public Utility Commission

719 A.2d 10

• Court: Commonwealth Court of Pennsylvania
• Decided: September 29, 1998
• Status: Published

Opinions

DOYLE, Judge.

Before this Court in our original jurisdiction are the preliminary objections of the Pennsylvania Public Utility Commission and its Chairman, John M. Quain, (collectively, PUC) to a Petition for Review filed by Senator Vincent J. Fumo, both individually and in his official capacity as a state senator.

On April 27, 1995, House Bill 1509 (Bill), printer’s number 1762 was introduced in the Pennsylvania House of Representatives. The Bill, which at that time consisted of two pages, proposed to amend the Public Utility Code by increasing the maximum number of years that a taxi cab may be operated from six to eight years, and was referred to the House Consumer Affairs Committee.

On May 23,1995, the Bill was reported out of committee as committed in its original form and was immediately referred to the House Appropriations Committee. The Bill was then reported out of that committee, still in its original form on June 5, 1995, for consideration by the entire Pennsylvania House of Representatives. The Bill was passed by the House by a vote of 203-0 and was sent to the Senate.

In the Senate, the Bill was referred to the Senate Consumer Protection and Professional Licensure Committee. After remaining in that committee for approximately seventeen months, the Bill, still in its original form, was reported out of that committee on November 18, 1996, and was referred to the Senate Rules and Executive Nominations Committee. While in that committee, the Bill underwent substantial modification, further amending the Public Utility Code to include the addition of 84 pages of amendments relating to the deregulation of the generation of electricity. On November 20, 1996, the Bill was reported out of the Rules and Executive Nominations Committee and was referred to the Appropriations Committee. On November 25, 1996, the Senate Appropriations Committee reported out the Bill. Following debate, as well as proposed amendments to the Bill, it was passed by the entire body of the Senate by a vote of 40-10¹ and was then sent to the House for concurrence in the Senate amendments. Following discussion and some debate of the Bill in the House, that chamber did concur in the Senate amendments on November 25, 1996, by a vote of 171-40. House Bill 1509, printer’s number 4282, was subsequently signed into law by Governor Ridge on December 3, 1996 and became Act 138 of 1996 (Act 138).

On March 18, 1997, Senator Fumo filed a Petition for Review challenging the enactment of Act 138 on the grounds that it was enacted in violation of Sections 1, 3, and 4 of Article III, of the Pennsylvania Constitution. Those Sections of Article III provide as follows:

§ 1. Passage of laws

No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.

§ 3. Form of bills

No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.

§ 4. Consideration of bills

Every bill shall be considered on three different days in each House. All amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill and before the final vote is taken, upon written request addressed to the presiding officer of either House by at least twenty-five per cent of the members elected to that House, any bill shall be read at length in that House. No bill shall become a law, unless on its final passage the vote is taken by yeas and nays, the names of the persons voting for and against it are entered on the journal,, and a majority of the members elected to each House is recorded thereon as voting in its favor.

Pa. Const, art. III, §§ 1, 3, 4. Based on these averments, Senator Fumo has requested a declaration from this Court that the enactment of Act 138 violated the Pennsylvania Constitution, and was thus void, as well as an order permanently enjoining the Chairman of the PUC from taking any action pursuant to Act 138. On April 17, 1997, the PUC filed Preliminary Objections to the Petition for Review. Specifically, the PUC argued that Senator Fumo lacked standing to bring the claim and that the claims set forth in the Petition for Review involve non-justieiable political questions pursuant to the Enrolled Bill Doctrine.

We will first address the PUC’s objection relating to the justiciability of this claim, finding that dispositive of the litigation.

The starting point of our analysis is the presumption of constitutionality that all legislative enactments enjoy under both the rules of statutory construction and decisions of the courts. See 1 Pa.C.S. § 1922(3); Common Cause of Pennsylvania v. Commonwealth, 668 A.2d 190 (Pa.Cmwlth.1995), aff'd, 544 Pa. 512, 677 A.2d 1206 (1996); Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981). Under the Enrolled Bill Doctrine, a court will not look beyond the certified enactment of the legislation to the process by which the law came to be passed. The rationale of this principle of judicial restraint was explained as follows:

[Wjhen a law has been passed and approved and certified in due form, it is no part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage .... The presumption in favor of regularity is essential to the peace and order of the state.

Common Cause, 668 A.2d at 195 (quoting Kilgore v. Magee, 85 Pa. 401, 412 (1877)).

The deference afforded by the courts under the purview of the Enrolled Bill Doctrine is not mandatory, of course, but rather is discretionary in nature. Therefore, in limited and compelling circumstances, courts of this Commonwealth have not followed the general rule of abstention, but have looked beyond the certified law to the enactment process. See Common Cause; Consumer Party v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986).

In Consumer Party, Senate Bill 270, the bill at issue in that case, began as legislation to fill vacancies in third through eighth class counties. Specifically, the title of that bill read as follows:

An act amending the act of August 9, 1955 (P.L. 323, No. 130), entitled ‘an act relating to counties of the third, fourth, fifth, sixth, seventh, and eight classes; amending, revising, consolidating and changing the laws relating thereto’ fiirther providing for the filling of vacancies in certain circumstances.

Consumer Party, 507 A.2d at 325.

After several considerations, the bill was passed and referred to the House of Representatives for approval. While in the House, the bill was amended, but retained the same title. However, the Senate refused to concur in the amendments made by the House. Therefore, the bill was sent to a Committee of Conference where members of both chambers sought to achieve a compromise of the content of the bill. The version of the bill that was reported out of the Committee of Conference was significantly different than the original bill and was entitled:

An act establishing salaries and compensation of certain public officials including justices and judges of Statewide courts, judges of courts of common pleas, judge of the Philadelphia Municipal Court, judges of the Philadelphia Traffic Court, district justices and the Governor, the Lieutenant Governor, the State Treasurer, the Auditor General, the Attorney General and certain other State officers and the salary and certain expenses of the members of the General Assembly; and repealing certain inconsistent acts.

Id. at 326. On September 28, 1983, both chambers adopted the Committee’s bill, and the bill was signed by then-Govemor Thorn-burgh on September 30, 1983.

Subsequently, the Consumer Party commenced an action in this Court seeking to void Senate Bill 270 on the grounds that it violated Article III of the Pennsylvania Constitution. This Court sustained the Preliminary Objections of the Commonwealth.² This Court noted that “absent a clear violation of the Constitution, this Court will defer to the legislative judgment of the General Assembly.” Consumer Party, 475 A.2d at 854. The Consumer Party appealed to our Supreme Court which affirmed our decision. The Supreme Court, citing its decision in Scudder v. Smith, discussed the purpose behind Article III, Section 1:

“The purpose of the constitutional requirements relating to the enactment of laws was to put the members of the [General] Assembly and others interested on notice ... so they might vote on it with circumspection.”

Consumer Party, 510 Pa. at 179, 507 A.2d at 334 (quoting Scudder v. Smith, 331 Pa. 165, 170-71, 200 A. 601, 604 (1938)). Thus, the principle behind Article III, Section 1, and indeed, Section 3 of that same article, is to ensure that interested parties, and especially members of the General Assembly charged with representing the citizens of the Commonwealth, are on notice of the contents of a bill and are not misled by the title or general contents of a bill. Thus, at bedrock, these two sections of Article III ensure that those charged with representing the citizens of the Commonwealth know the type and content of legislation for which they are voting. In Consumer Party, our Supreme Court noted that, although Senate Bill 270 had been “gutted,” its title still fairly represented the contents of the bill and the legislators knew what was being voted on. The Court noted that

“The Consumer Party does not allege that any members were deceived as to the contents of the bill, making them unable to vote on it with circumspection. There is no submission by the Consumer Party that any part of the measure was secret.”

Consumer Party, 510 Pa. at 181, 507 A.2d at 335 (quoting Consumer Party of Pennsylvania v. Commonwealth, 475 A.2d at 854). Similarly, the Court noted that none “of the members voting against the bill did so because they were denied the opportunity of considering the measure before its passage.” Id. Thus, the clear import of Consumer Party is that, absent confusion or deception as to the content of a bill, there is no clear violation of the Constitution.

In the present case, the title of House Bill 1509, printer’s number 4282 appeared as follows:

AN ACT AMENDING TITLES 15 (CORPORATIONS AND UNINCORPORATED ASSOCIATIONS) AND 66 (PUBLIC UTILITIES) OF THE PENNSYLVANIA CONSOLIDATED STATUTES, PROVIDING FOR GENERATION CHOICE FOR CUSTOMERS OF ELECTRIC COOPERATIVES AND UTILITIES; FURTHER PROVIDING FOR DEFINITIONS; REENACTING PROCEDURAL REQUIREMENTS FOR TAXICAB CERTIFICATES AND MEDALLIONS; PROVIDING FOR RESTRUCTURING OF THE ELECTRIC UTILITY INDUSTRY; AND FURTHER PROVIDING FOR TAXATION.

From its title, the contents of the Bill were absolutely clear. Therefore, as in Consumer Party, we conclude that no clear constitutional violation occurred in the present case because it is clear that the Senators and Representatives were not mislead by the bill’s title and that they were on notice as to the Bill’s content.³

As to. Count II of Senator Fumo’s Petition for Review which alleges that the Bill encompassed more than one subject, we are equally unconvinced that any clear violation of the Constitution occurred. As the Consumer Party Court noted:

The practice of sending legislation to a conference committee is by its nature designed to reach a consensus.... It is therefore to be expected that the legislation that emerges from such a process may materially differ from the bills sent to the Committee for consideration. To unduly restrict this process would inhibit the democratic process in its traditional method of reaching accord and would unnecessarily encumber the heart of the legislative process, which is to obtain a consensus.

Consumer Party, 507 A.2d at 334. Clearly, in the present case, that is what was done. The Senate amended the original bill which proposed to amend the Public Utility Code and added further amendments to that Code to expand different aspects of public utility regulation. It is readily apparent that, if our Supreme Court concluded that a bill that was totally changed in the Committee of Conference does not offend Article III of the Constitution, we must reach a similar conclusion in regard to the present Bill which involves amendments to the Public Utility Code and related subjects dealing with public utility regulation. Accordingly, we conclude that no obvious constitutional violations occurred in the enactment process of House Bill 1509.

The third alleged violation of Article III is that the House of Representatives did not consider the amendments to the Bill on three separate occasions. However, as the Respondents correctly point out, a violation of Article III, Section 4 is directly tied to a violation of Article III, Section 1, which prohibits legislation encompassing more than one subject. See Parker v. Commonwealth, 115 Pa.Cmwlth. 93, 540 A.2d 313 (Pa.Cmwlth. 1988), aff'd per curiam , 521 Pa. 531, 557 A.2d 1061 (1989). Thus, because we have concluded that the Bill did not violate the one subject requirement, we must also conclude that Article III, section 4 was not violated— that is, because House Bill 1509 was initially considered on three different days in the House and on three different days in the Senate, it passed constitutional muster even though the Senate amendments themselves did not receive a separate three days of consideration in the House of Representatives. When either the House or the Senate places amendments to legislation emanating in the other chamber, those amendments do not constitutionally require another separate three days of separate consideration. If it were otherwise, any amendment to any bill which was adopted on third consideration and final passage in either chamber would require at least another two days of consideration even in that chamber alone, and any subsequent amendment would require the same reconsideration. It is obvious, of course, that the amendments which were inserted by the Committee of Conference in Consumer Party were not so encumbered and that those amendments were subsequently considered by each respective chamber only for one additional vote. Again, if it were otherwise and both chambers were constitutionally required to consider the conference amendments on three separate days, the entire legislative process would be bogged down to a snail-paced process.

Accordingly, we sustain the PUC’s Preliminary Objections and dismiss the Petition for Review with prejudice.

ORDER

AND NOW, September 24, 1998, following argument on Respondent’s preliminary objections and Petitioner’s response thereto, Respondent’s preliminary objections in the above-captioned matter are hereby sustained and the Petition for Review is dismissed with prejudice.

COLINS, President Judge, and PELLEGRINI, J., concur in the result only.

1 . The ten senators voting against the Bill were Senators Belan, Bell, Bodack, Fumo, Hughes, Kasunic, Kitchen, La Valle, Tartaglione, and Williams.

2 . See Consumer Party of Pennsylvania v. Commonwealth, 81 Pa.Cmwlth. 609, 475 A.2d 850 (Pa.Cmwlth. 1984), aff'd, 510 Pa. 158, 507 A.2d 323 (1986).

3 . Moreover, although not reaching the merits in this case, we note that several amendments to the bill were offered during debate on the senate floor, including one from Senator Fumo. See Pennsylvania Legislative Journal—Senate, Nov. 25, 1996, 2669, 2674-703.