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Date: Sat, 24 May 1997 08:19:06 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Quo Warranto in Pennsylvania (fwd)
<snip>
>
> IN THE COMMONWEALTH COURT OF PENNSYLVANIA
>
>
>JOHN G. BERGDOLL, K. ROBIN :
>DAVIS and GERALD C. GRIMAUD, :
> Petitioners :
> :
> v. : No. 516 M.D. 1995
> : Argued: November 20, 1996
>HONORABLE YVETTE KANE, :
>SECRETARY OF THE COMMONWEALTH :
>OF PENNSYLVANIA, :
> Respondent :
>
>
>BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
> HONORABLE BERNARD L. McGINLEY, Judge
> HONORABLE DORIS A. SMITH, Judge
> HONORABLE DAN PELLEGRINI, Judge
> HONORABLE JAMES R. KELLEY, Judge
> HONORABLE JIM FLAHERTY, Judge
> HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
>
>
>OPINION BY JUDGE FLAHERTY FILED: May 19, 1997
>
>
> Before this court in our original jurisdiction are
>
>cross motions for judgment on the pleadings or summary judgement
>
>filed by John G. Bergdoll, K. Robin Davis, Gerald C. Grimaud
>
>(Petitioners), the Pennsylvania Bar Association (PBA), and the
>
>respondent, Yvette Kane, Secretary of the Commonwealth of
>
>Pennsylvania (Secretary).
>
> This case originated on October 27, 1995, when
>
>Petitioners filed an "Application for leave to file Complaint in
>
>Quo Warranto" in the Pennsylvania Supreme Court. Petitioners
>
>sought to enjoin Secretary from placing on the November 7, 1995
>
>ballot, a proposed amendment to Article I, Section 9 of the
>
>Pennsylvania Constitution, changing the rights of persons accused
>
>of crimes to confront witnesses against them and allowing the
>
>General Assembly to enact laws regarding the manner in which
>
>children may testify in criminal proceedings, including the use
>
>of videotaped depositions and testimony by closed-circuit
>
>television. After Secretary filed an answer and Petitioners filed
>
>a reply, the Supreme Court transferred the matter to this court,
>
>under our original jurisdiction, citing 42 Pa.C.S. 761(a)(1).
>
> On November 2, 1995 a hearing was conducted on the
>
>requested preliminary injunctive relief. At the hearing, this
>
>court granted the application filed by the PBA on November 1,
>
>1995, to intervene. This court then denied the requested
>
>preliminary relief, which was affirmed by the Supreme Court on
>
>November 6, 1995. On November 7, 1995, a majority of the
>
>electorate voted affirmatively on the ballot question.
>
> Petitioners then filed an amended complaint on November
>
>20, 1995. Secretary filed an answer with new matter on November
>
>21, 1995, and Petitioners filed a response thereto on December
>
>18, 1995. Thereafter the parties filed cross motions for
>
>judgment on the pleadings or summary judgment, which are
>
>presently before us.
>
> A motion for judgment on the pleadings in this court's
>
>original jurisdiction is in the nature of a demurrer; all of the
>
>opposing party's allegations are viewed as true and only those
>
>facts which have been specifically admitted by him may be
>
>considered against him. The court may only consider the
>
>pleadings themselves and any documents properly attached thereto.
>
>Pennsylvania Association of Life Underwriters v. Foster, 608 A.2d
>
>1099, 1101 (Pa. Cmwlth. 1992). Pursuant to Pa. R.C.P. 1035(b), a
>
>motion for summary judgment shall be rendered if the pleadings,
>
>depositions, answers to interrogatories, and admissions on file,
>
>together with affidavits, if any, show that there is no genuine
>
>issue as to any material fact and that the moving party is
>
>entitled to a judgment as a matter of law. Summary judgment is
>
>appropriate in an action for declaratory or injunctive relief.
>
>Pennsylvania Medical Providers Assoc. v. Foster, 613 A.2d 51, 52
>
>(Pa. Cmwlth. 1992).
>
> The issues before this court are (1) whether
>
>Petitioners have standing to challenge the constitutional
>
>amendment, (2) whether the ballot question contained two
>
>amendments to the Constitution and (3) whether the amendment
>
>abrogates a natural right that may not be taken away.
>
> Initially, Secretary maintains that neither the
>
>individual Petitioners, who are attorneys, taxpayers and electors
>
>in this Commonwealth, nor the PBA, which is a professional
>
>association of attorneys, have standing to challenge the
>
>constitutionality of the amendment to Article I, Section 9 of the
>
>Pennsylvania Constitution. "Generally, in order to have
>
>standing, a party must have an interest in the controversy that
>
>is distinguishable from the interest shared by other citizens."
>
>Sprague v. Casey, 520 Pa. 38, 43, 550 A.2d 184, 187 (1988). The
>
>interest must be substantial, direct and immediate. Id.
>
>Secretary maintains that a challenge to the constitutionality of
>
>the amendment, which modifies the rights of an accused in
>
>criminal proceedings, would have to be challenged by a criminal
>
>defendant who is affected by it. Plaintiffs can only assert the
>
>common interest of all citizens.
>
> The individual Petitioners maintain they have standing
>
>as they were unable to vote on the ballot question as it
>
>contained two questions but permitted only one answer. In
>
>addition, they, as attorneys, along with the PBA, which is
>
>comprised of attorneys, are sworn to defend the Constitution and
>
>the ballot question, as presented, violated Article XI, Section
>
>1, by posing two amendments in one question. We agree that the
>
>Petitioners and PBA have a substantial, direct and immediate
>
>interest in the matter, and thus have standing. In addition, we
>
>note that this case is distinguishable from Lincoln Party v.
>
>General Assembly, 682 A.2d 1326 (Pa. Cmwlth. 1996), wherein this
>
>court held that the Lincoln Party did not have standing to
>
>challenge the amendment at issue. In that case, the Lincoln
>
>Party, an unincorporated association, failed to identify any of
>
>its members, the nature of its membership and neglected to assert
>
>any direct and immediate harm. Here, the individual Petitioners
>
>along with the PBA, an association of attorneys, are sworn to
>
>defend the Pennsylvania Constitution, and they along with their
>
>clients were and will be directly impacted by the amendment.
>
> As we have determined that Petitioners have standing,
>
>our next inquiry is whether the ballot question contained two
>
>amendments to the Constitution contained in one question in
>
>violation of Article XI, Section 1 which provides that "[w]hen
>
>two or more amendments shall be submitted they shall be voted
>
>upon separately." The ballot question read:
>
> Shall the Pennsylvania Constitution be
> amended to provide (1) that a person accused
> of a crime has the right to be "confronted
> with the witnesses against him," instead of
> the right to "meet the witnesses face to
> face," and (2) that the General Assembly may
> enact laws regarding the manner by which
> children may testify in criminal proceedings,
> including the use of videotaped depositions
> or testimony by closed-circuit television?
>
>
> Petitioners argue that this ballot question, and its
>
>subsequent passage, amended both Article I, Section 9, the
>
>"Confrontation Clause," and Article V, Section 10(c), which
>
>grants to the Supreme Court "the power to prescribe general rules
>
>governing practice, procedure and the conduct of all courts
>
>. . ." We agree.
>
> Although Article V, Section 10(c) is not mentioned, the
>
>ballot question, by granting to the General Assembly the
>
>authority to enact laws regarding the manner by which children
>
>testify at criminal proceedings, has effectively amended Article
>
>V, Section 10(c), which vests exclusive authority in the Supreme
>
>Court over practice and procedure in our courts. Article V,
>
>Section 10(c) provides that "the Supreme Court shall have the
>
>power to prescribe general rules governing practice, procedure,
>
>and the conduct of all courts." Although Secretary maintains
>
>that Article V, Section 10(c) provides only a "general, residual
>
>grant of authority to the Supreme Court to exercise general
>
>supervisory and administrative authority over the unified
>
>judicial system" (Secretary's brief at 11), as enunciated by our
>
>Supreme Court, "[t]he Pennsylvania Constitution grants the
>
>judiciary - and the judiciary alone - power over rule-making."
>
>In re 42 Pa. C.S. 1703, 482 Pa. 522, 534, 394 A.2d 444, 451
>
>(1978). "There is simply no substantial support for the
>
>proposition that the grant of authority in Article V, Section
>
>10(c) is anything other than exclusive." Id. at 529, 394 A.2d at
>
>448.
>
> Although Article V, Section 10(c) imposes restrictions
>
>on the Supreme Court's exclusive rule-making authority by stating
>
>it may "neither abridge, enlarge nor modify the substantive
>
>rights of any litigant," we believe that the manner in which
>
>testimony is to be received in court is procedural and thus
>
>within the rule-making authority of the Supreme Court. How the
>
>testimony of witnesses is to be received in a courtroom, and the
>
>choice of the procedures to be employed, i.e., videotaped
>
>depositions, closed-circuit television, is a procedural matter
>
>which is entrusted to the judiciary under Article V, Section
>
>10(c). "[W]e know of no authority which would vest power in the
>
>Legislature to tell the Judiciary how to hear and dispose of a
>
>case . . . ." Appeal of Borough of Churchill, 525 Pa. 80, 88,
>
>575 A.2d 550, 554 (1990) (emphasis added).
>
> By asking the voters of Pennsylvania whether the
>
>Constitution should be amended to provide a person accused of a
>
>crime the right to be confronted with the witness against him, an
>
>amendment to Article I, Section 9 and whether the General
>
>Assembly should be afforded the right to enact laws concerning
>
>the manner in which children testify in criminal proceedings, a
>
>procedural function which is controlled by the Supreme Court in
>
>accordance with Article V, Section 10, the ballot question, in
>
>contravention of Article XI, Section 1, posed two amendments to
>
>the Constitution with a single question.
>
> Therefore, we declare the vote on the ballot question
>
>null and void, as it contained two amendments in one question.1
>
>Accordingly, Petitioner's motion for summary judgment is granted,
>
>and Secretary's motion for summary judgment is denied.
>
>
>
> JIM FLAHERTY, Judge
>
>_______________________________
> 1This opinion does not hold that it is unconstitutional to
>amend Article V, Section 10(c) by the amendment that was
>proposed, but only that any such constitutional amendment must
>conform to Article XI, Section 1 of the Constitution and be
>submitted to the electorate as a separate question, rather than in
>combination with a proposed amendment to another article.
>
>
>
> IN THE COMMONWEALTH COURT OF PENNSYLVANIA
>
>
>JOHN G. BERGDOLL, K. ROBIN :
>DAVIS and GERALD C. GRIMAUD, :
> Petitioners :
> :
> v. : No. 516 M.D. 1995
> :
>HONORABLE YVETTE KANE, :
>SECRETARY OF THE COMMONWEALTH :
>OF PENNSYLVANIA, :
> Respondent :
>
>
> O R D E R
>
>
> NOW, May 19, 1997, the Petitioners motion for summary
>
>judgment is granted, and Secretary's motion for summary judgment
>
>is denied.
>
>
>
> JIM FLAHERTY, Judge
>
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