Markham v. Wolf

136 A.3d 134, 635 Pa. 288
CourtSupreme Court of Pennsylvania
DecidedMarch 29, 2016
StatusPublished
Cited by41 cases

This text of 136 A.3d 134 (Markham v. Wolf) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Markham v. Wolf, 136 A.3d 134, 635 Pa. 288 (Pa. 2016).

Opinions

OPINION

Justice TODD.

In this interlocutory appeal, we consider whether state legislators have standing to intervene in a challenge to the issuance of an executive order concerning direct care health workers. For the reasons that follow, we conclude that, in these circumstances, they do not because the legislators’ interests purportedly impacted by the executive order do not involve unique legislative prerogatives, but, rather, are interests common to the general citizenry which only remotely impact the legislators’ right to act as legislators. Thus, we affirm the order of the Commonwealth Court denying the legislators’ request to intervene.

The background to this appeal is uncontested. On February 27, 2015, Governor Tom Wolf issued Executive Order 2015-05, “Participant-Directed Home Care Services” (“Executive Order 2015-05” or “Executive Order”), which focuses on individuals who receive, and workers who provide, in-home medical and personal care. The Executive Order establishes, inter alia, an advisory group to ensure the quality of long-term personal assistance services to seniors and persons with disabilities, and a process by which workers who provide such care, and who are employed by the individuals they serve, may obtain a designated representative for discussions with the Secretary of Human Resources regarding various matters including, inter alia, wages and health and retirement benefits.

On April 6, 2015, Jessica Markham, Victoria Markham, Jesse Charles, Pennsylvania Home Care Association, and United Cerebral Palsy of Pennsylvania filed a Petition for Review in the Commonwealth Court’s original jurisdiction pursuant to 42 Pa.C.S. § 761(a)(1), naming as respondents Appellees Governor Wolf and the Commonwealth of Pennsylvania, Department of Human Services, and the Office of Long Term Living. These petitioners asserted that Executive Order 2015-05 establishes organizational labor rights for domestic home care workers, but was issued without authorization and conflicts with existing [137]*137Commonwealth labor laws — specifically, the Pennsylvania Labor Relations Act,1 and the Public Employe Relations Act.2 Similarly, on the same date, David Smith and Donald Lambrecht (collectively, with Jessica Markham, Victoria Markham, Jesse .Charles, Pennsylvania Home Care Association, and United Cerebral Palsy of Pennsylvania, “Petitioners”) also filed a Petition for Review in the Commonwealth Court, naming Appellees as respondents. They similarly challenged Executive Order 2015-05.

On April 20, 2015, Senate President Pro Tempore Joseph Scarnati, III, Senate Majority Leader Jake Corman, Senate Majority Whip John Gordner, and Senate Majority Appropriations Chairman Pat Browne, on behalf of the Pennsylvania Senate Majority Caucus (“Appellants”), filed an Application for Relief Seeking to Intervene (“Application to Intervene”) in both actions,3 claiming Executive Order 2015-05 was an unauthorized attempt by the Governor to exercise legislative power in violation of the separation of powers doctrine.

Two days later, the Commonwealth Court conducted a hearing on Petitioners’ request for a preliminary injunction, conducted by President Judge Dante Pellegri-ni. Initially, the court rejected Appellants’ attempt to directly intervene at the preliminary injunction stage. However, the court issued an order enjoining Governor Wolf from entering into any memorandum of understanding pursuant to Executive Order 2015-05 until disposition of the matter on the merits, establishing an expedited schedule for the filing of briefs on preliminary objections and cross-motions for summary relief, and listing the matter for en banc argument before the Commonwealth Court in September 2015.

On May 28, 2015, President Judge Pel-legrini heard oral argument on Appellants’ Application to Intervene, and, by a single judge opinion, he denied Appellants’ application on June 3, 2015. Noting the traditional test for standing — requiring an individual to be aggrieved, i.e., to have a substantial, direct, and immediate interest in the outcome of the litigation — President Judge Pellegrini considered caselaw analyzing standing for legislators. Observing that legislative standing rests upon a concrete injury suffered in the legislator’s official capacity, rather than a mere generalized grievance about the conduct of government that all citizens share, President Judge Pellegrini concluded that the interests impinged by the Governor were not unique, legislative interests, but, rather, were interests common to the general citizenry. In reaching this conclusion, he determined that, at its core, Appellants’ “sole basis for seeking intervention is that the Governor’s Executive Order is illegal and that every time he takes an illegal action, he violates separation-of-[138]*138powers principles because he is not enforcing the laws that the [Appellants] believe are proper.” Markham v. Commonwealth, 176 M.D.2015, at 9 (Pa. Cmwlth. filed June 3, 2015). The judge further explained that legislators do not have standing just because the Governor’s action is purportedly illegal, and the General Assembly may “offer legislation that will preclude or vitiate the Governor’s action.” Id. Nevertheless, Appellants were permitted to participate, and subsequently participated, in the matter as amicus curiae. Id. at 10 n. 8.

On July 6, 2015, Appellants filed a notice of appeal with our Court, as well as jurisdictional statements and applications seeking expedited consideration of the appeals. On August 10, 2015, our Court noted probable jurisdiction and granted the applications for relief seeking expedited consideration.4 Oral argument was held before our Court on October 7, 2015.5

The issue before our Court, as stated by Appellants, is “Whether legislative standing exists to challenge an executive order the origin of which has neither been authorized by the Constitution nor promulgated pursuant to statutory authority, thus constituting a violation of the Separation of Powers doctrine?” Appellants’ Brief at 5. As this issue raises a pure question of law, our standard of review is de novo, and our scope of review is plenary. In re Hickson, 573 Pa. 127, 821 A.2d 1238, 1242 (2003).

Appellants maintain that Executive Order 2015-05 is an “unqualified and improper intrusion upon one branch by another,” and constitutes a “discernable and palpable infringement” on the legislators’ authority as legislators. Appellants’ Brief at 13. Analyzing prior caselaw on legislative standing, Appellants offer that legislators have “standing to challenge executive actions when specific powers unique to their functions under the Constitution are diminished or interfered with.” Appellants’ Brief at 16 (citing Wilt v. Beal, 26 Pa. Cmwlth. 298, 363 A.2d 876, 876 (1976)). Stated another way, they assert that generalized grievances about the conduct of government do not bestow standing, but that claims that assert a legislator’s vote or official authority has been impaired or nullified are sufficient to do so. Fumo v. City of Philadelphia, 601 Pa. 322, 972 A.2d 487, 502 (2009) (recognizing standing to permit a legislator to obtain redress for an injury suffered in his official capacity). According to Appellants, they have standing for the same reasons presented in Fumo,

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Bluebook (online)
136 A.3d 134, 635 Pa. 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markham-v-wolf-pa-2016.