www.PACleanSweep.com

STATEMENT OF AMICI CURIAE

Amici file this brief in support of the position of Petitioner.

Amicus Timothy W. Potts is a resident of Carlisle, Cumberland County, Pennsylvania. He is an elected director of the Carlisle Area School District and a co-founder of Democracy Rising PA, a coalition of organizations seeking to raise the standards of integrity in state government. He is a former member of the board of directors of Common Cause PA and formally served for seven years (1990-97) as press secretary and director of communications for the PA House Democratic Caucus, in addition to other significant positions in the executive branch of state government. Mr. Pott’s interest in this case, is that of a citizen, taxpayer and public official, who is concerned that a ruling in favor of the Defendants will deprive citizens of their constitutional rights of participation in this and future legislative enactments, undermine citizen confidence in the rule of law, and unnecessarily damage public respect for those who serve in public office.

PACleanSweep, Inc. is a non-profit corporation registered with the Pennsylvania Department of State. Operation Clean Sweep, an effort by PACleanSweep, Inc., is a nonpartisan effort to return responsible government to the citizens of Pennsylvania, and to restore honor, dignity and integrity to the halls of our state Capitol. PACleanSweep, Inc., believes that responsible government must begin with restoring compliance with the clear and unambiguous requirements of Article III of the Pennsylvania Constitution, which provide for fundamental due process in the drafting, deliberation and enactment of the laws of the Commonwealth.

Eric Epstein, Coordinator of RocktheCapital.org, has been authorized by the board of directors to join as Amici in support of Petitioner. RocktheCapital.org is a nonprofit, nonpartisan voter education organization that was established in response to what the members considered an improper and illegal compensation package, including, in particular, “unvouchered expenses.” The organization is deeply concerned that, depending on the outcome of the instant matter, improper expenditures like “unvouchered expenses” will continue.

STATEMENT OF THE CASE

The case before this Court was filed below by Petitioner as a Complaint in Mandamus and Bill of Equity in the Commonwealth Court at 404 M.D. 2005 and was subsequently amended. The Complaint challenged the Act of July 7, 2005, P.L. 201, No. 44(“Act 44”).

After the repeal of Act 44, on November 16, 2005 by Act 2005-72, the Commonwealth Court, in a Memorandum Opinion dated November 30, 2005, by Senior Judge James R. Kelley, dismissed Petitioner’s action as moot. However, by Order dated December 22, 2005, this Honorable Court granted in part the Application for Extraordinary Relief and took plenary jurisdiction over this matter. In its order, this Court directed the parties to address five distinct issues for briefs and oral argument and to list this case for argument at the same session with Herron v. Commonwealth of Pennsylvania, et al, No. 163 EM 2005.

H.B. 1521, P.N. 1865 introduced on May 3, 2005, eventually to become Act 44, contained a two-page proposed act to be known as the “Executive Branch Official Compensation Act." This two-page bill dealt with one subject, i.e., forbidding executive branch compensation greater than the Governor (R. 216a). The bill eventually passed the House of Representatives by a vote of 157-40 on June 8, 2005 (R. 181a). H.B. 1521, P.N. 2561, was amended in the Senate to make its provisions apply only to Executive branch officials elected or appointed after November 1, 2006 (R. 217a). In its amended form, it passed the Senate by a vote of 28-22 on July 6, 2005 (R. 181a).

In the very early hours of July 7, 2005, a conference committee report was presented both to the House and to the Senate as H.B. 1521, P.N. 2570. The Conference Committee Report was 22 pages in length and did not deal with reconciling the differences between the House and Senate versions of H.B. 1521 (R.218a – 228a). Instead, the report consisted of entirely new provisions consisting of numerous amendments to Title 42 of the Pennsylvania Consolidated Statutes, all dealing with compensation matters for various public officials in the Judicial, Executive and Legislative branches, providing for increases in such compensation, including a system of unvouchered expenses (R. 218a – 222a). The system of unvouchered expenses, inter alia, does not reduce reimbursement for documented expenses actually incurred by legislators in the course of carrying out their official business, nor does it replace these actually incurred expenses, but simply provides an increase in compensation exactly equal to the salary increases scheduled to take effect upon the expiration of the terms of legislators presently serving in the General Assembly (R. 224a -225a). This Conference Committee Report was adopted in the House, without debate, by a vote of 119-79, and in the Senate, without substantive debate, by a vote of 27-23 (R. 181a).

STATEMENT OF THE QUESTIONS INVOLVED

1. Does Petitioner Stilp have standing to bring an action challenging the constitutionality of the Act of July 7, 2005, P.L. 201, No. 44 (“Act 44”)?

(Not answered below).

(Suggested answer in the affirmative).

2. Did the General Assembly’s adoption of Act 44 violate:

a) Article III, Section 1 of the Pennsylvania Constitution;

b) Article III, Section 2 of the Pennsylvania Constitution;

c) Article III, Section 3 of the Pennsylvania Constitution; and/or

d) Article III, Section 4 of the Pennsylvania Constitution?

(Not answered below).

(Suggested answer in the affirmative).

3. Does the system of unvouchered expenses established by Act 44 violate the Pennsylvania Constitution, and should this Court reconsider and/or overrule the decision in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa. 1986)?

(Not answered below).

(Suggested answer in the affirmative).

4. In the event any portion of Act 44 is deemed unconstitutional, would enforcement of the non-severability provision in the statute violate Article V, section 16(a) of the Pennsylvania Constitution?

(Not answered below).

(Suggested answer in the negative).

5. Are Petitioner’s constitutional challenges moot?

(Answered in the affirmative below).

(Suggested answer in the negative).

SUMMARY OF ARGUMENT

The General Assembly, in its enactment of the Act of July 7, 2005, P.L., 201, No. 44 (“Act 44”), has engaged in an egregious and flagrant violation of what one legal commentator has aptly called a “due process of lawmaking.” The core of this due process is contained in Article III of the Pennsylvania Constitution. Unfortunately, this denial of due process of lawmaking has occurred repeatedly in recent years. Predictably, it has led to a critical loss of confidence by the citizenry of this state in the integrity of the legislative process and, indeed, in the integrity of the Commonwealth's governmental institutions.

The purpose of Article III, as this Court has stated numerous times, is to maintain trust and confidence in the legislative process as open and transparent. The drafting of legislation in secret, with no notice or opportunity for hearings, no review and refinement and no correction after due deliberation by members of the Legislature, is an invitation to distrust and lack of confidence. Indeed, the secret drafting of major legislation behind closed doors and the “unveiling” of such legislation at the last possible moment, prevents legislators from even reading what they are voting on, let alone deliberating in the fashion contemplated by the drafters of the Constitution. Further, such a practice deprives citizens of their inherent right of participation in the lawmaking process that affects every aspect of their lives. When the legislative and the executive branch choose to ignore the fundamental elements of the due process of lawmaking, then the courts should reestablish compliance with these constitutional requirements.

In this case, the conference committee did not, in good faith, reconcile differences in the House and Senate versions of H.B. 1521. On the contrary, in bad faith, it inserted an entirely new bill into H.B. 1521, precisely to avoid the requirements of Article III. The analysis of the Court in Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323 (Pa. 1986), which permitted such a circumvention of the plain requirements of Article III, must be reconsidered and Act 44 should be struck down in its entirety, as enacted in clear violation of Article III, sections 1-4 of the Pennsylvania Constitution. In addition, it is necessary for this Court to declare invalid the system of unvouchered expenses contained in Act 44 (and approved in Consumer Party) as a blatant and deliberate attempt to circumvent the clear words and the unmistakable purpose of Article II, section 8, of the Pennsylvania Constitution.

Finally, the Court should follow its precedents and affirm the standing of Petitioner in this matter, since he meets all of the criteria required in this Court’s previous articulation of the circumstances permitting taxpayer standing. Further, it should not and need not address any issues relating to Article V, section 16(a) of the Pennsylvania Constitution. In light of the unconstitutionality of Act 44 in its entirety, this matter, far from being moot, needs to be resolved in order to properly dispose of Herron v. Commonwealth, et al., No. 163 EM 2005.

ARGUMENT

I. PETITIONER STILP HAS STANDING TO BRING THIS ACTION CHALLENGING THE CONSTITUTIONALITY OF THE ACT OF JULY 7, 2005, P.L. 201, No. 44 (“ACT 44”) UNDER THE ESTABLISHED CRITERIA THAT HAS BEEN DEVELOPED BY THIS COURT.

This Court, in Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979), laid out criteria for permitting taxpayer standing to challenge the constitutionality of legislation, even when the taxpayer could not allege harm distinct from that of the general public. Biester, 487 Pa. at 444, 409 A.2d 852. The Court in Biester noted that such a challenge would be permitted, inter alia, where judicial review of the legislation would otherwise not occur. That possibility of the legislation escaping review is most likely “when those directly and immediately affected by the complained of expenditures are beneficially affected, as opposed to adversely affected.” The Court further stated that "[c]onsideration must be given to other factors such as, for example, the appropriateness of judicial relief, the availability of redress through other channels, or the existence of other persons better situated to assist the claim. Biester, 487 Pa. at 446, 409 A.2d at 852.

In this case, we have a situation that meets these criteria fully. Certainly, it is most unlikely that those beneficially affected by Act 44 will challenge it. Further, given the fact that Act 44 increases compensation for high public officials in all three branches of state government, it is even less likely that those directly and beneficially affected would challenge Act 44. But the constitutional issues raised by Petitioner's action are of the highest importance to our democratic institutions and to the public's confidence in them, as discussed below. Therefore, the Court should follow its established criteria and find that petitioner meets all the requirements for standing in this case:

1. The governmental action would otherwise go unchallenged;

2. Those directly and immediately affected by the complained of expenditures are beneficially affected and are not inclined to challenge the action;

3. Judicial relief is appropriate;

4. Redress through other channels is unavailable; and,

5. No other persons are better situated to assert the claim.

Consumer Party of Pennsylvania v. Commonwealth, 510, Pa. 158, 170, 507 A.2d 323, 329 (Pa.1986). See also, e.g., League of Women Voters of Pennsylvania, __Pa. Cmwlth. Ct. ___, 692 A.2d 263, 268-269, (Pa. Cmwlth. Ct. 1997); Sprague v. Casey, 520 Pa. 38, 44, 520 A.2d 184, 187.

II. THE GENERAL ASSEMBLY'S ADOPTION OF ACT 44 VIOLATED ARTICLE III, SECTIONS 1-4, OF THE PENNSYLVANIA CONSTITUTION AND CONSEQUENTLY ACT 44 MUST BE STRUCK DOWN IN ITS ENTIRETY.

A. Both the language and the purpose of Article III, sections 1-4, of the Pennsylvania Constitution are clear and free from ambiguity. They were enacted specifically to eliminate practices that have undermined the citizens' confidence in the Legislature. These provisions must be given full respect and must be scrupulously adhered to, as they are part of the basic law of this Commonwealth and reflect important policies relating to the proper deliberative process in lawmaking.

The provisions of Article III of the Pennsylvania Constitution “… were added to the Pennsylvania Constitution to stem legislative abuses and should be read together.” Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. Pitt. L. Rev. 797, 812 (1987). Together, these provisions guarantee to our citizens, what has been aptly called by Justice Hans A. Linde of Oregon a “due process of lawmaking.” Linde, Due Process of Lawmaking, 55 Neb. L. Rev.197 (1976), quoted in Williams, supra, 48 U. Pitt. L. Rev. 797, 826.

These guarantees, dating back to the 19th century, have been reenacted in our modern Pennsylvania Constitution of 1968, and, far from reflecting technical or archaic requirements, continue to be deserving of respect and compliance. See Williams, supra, 48 U. Pitt. L. Rev. 797, 800. Ironically, the wisdom and importance of these provisions is being rediscovered and reemphasized as the result of recent major scandals in our country. See, e.g., Norman Ornstein and Thomas E. Mann, If You Give a Congressman a Cookie, New York Times, January 19, 2006. (“Omnibus bills, sometimes thousands of pages long, are brought to the floor with no notice, let alone the 72 hours the rules require.”) The drafters of our Pennsylvania Constitution wisely and presciently laid out clearly and succinctly how to avoid the abuses that were common in their day, and which, unfortunately, have resurfaced in recent years as strict adherence to legislative due process has declined. It is necessary now to rediscover and reemphasize this wisdom and reestablish the central importance of the due process of lawmaking.

Article III, sections 1-4 of the Pennsylvania Constitution provide:

Section 1. No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, ask to change its original purpose.

Section 2. No bill shall be considered unless referred to a committee, printed for the use of the members and returned therefrom.

Section 3. 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 part thereof.

Section 4. 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 percent 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.

This Court has recently exhaustively reviewed the historical development and the purpose of these provisions of Article III (and section 3, in particular) in City of Philadelphia v. Commonwealth, 575 Pa. 542, 572-3, 838 A.2d 566, 585-586 (2003). Summing up its review the Court stated:

Historically, procedural limitations such as those contained in Article III, section 3 did not appear in the first state constitutions. Instead, they were adopted throughout the 19th century in response to perceived state legislative abuses. One observer during that era noted that “[o]ne of the most marked features of all recent State constitutions is the distrust shown of the Legislature.” Last-minute consideration of important measures, log rolling, mixing substantive provisions in omnibus bills, low visibility and hasty enactment of important, and sometimes corrupt, legislation, and the attachment of unrelated provisions to bills in the amendment process – to name a few of these abuses – led to the adoption of constitutional provisions restricting the legislative process. These constitutional provisions seek generally to require a more open and deliberative state legislative process, one that addresses the merits of legislative proposals in an orderly and rational manner.

Williams, State Constitutional Limits on Legislative Procedure, at 798 (quoting Eaton, Recent State Constitutions, 6 Harv. L. Rev. 109, 109 (1892)). Consistent with this background, the Constitution plainly establishes limitations on the Legislature's discretion in this area.

575 Pa. at 578-579, 838 A.2d at 588-589.

Amici assert that this summary is applicable to Article III, sections 1-4 generally, and has been so recognized by this Court. See, e.g., Pennsylvania AFL-CIO, ex rel. George v. Commonwealth, 563 Pa. 108, 119, 757 A.2d 917, 923 (2000) quoted in City of Philadelphia v. Commonwealth, supra, 579 Pa. 542, 573, 838 A.2d 566, 585. “Article III's general purpose is ‘to place restraints on the legislative process and encourage an open, deliberative and accountable government.’” See also, Williams, State Constitutional Limits on Legislative Compliance and Judicial Enforcement, 48 U. Pitt. L. Rev. 797, 810-811:

Legislative abuses led to the specific limitations on legislative procedure inserted into the Pennsylvania Constitution in 1874. [FN. 57]. The call for a Constitutional Convention, carried by almost a five to one popular vote in 1872. R. Branning, Pennsylvania Constitutional Development 56 (1960). The Pennsylvania Constitution of 1874 ...was drafted in an atmosphere of extreme distrust of the legislative body.... It was the product of a convention, whose prevailing mood was one of reform... and, overshadowing all else, reform of legislation to illuminate the evil practices that had crept into the legislative process. Legislative reform was truly the dominant motif of the convention, and that purpose is woven into the very fabric of the Constitution. Id. at 37. See also Russ, The Origin of the Ban on Special Legislation and the Constitution of 1874, 11 Pa. Hist. 260 (1944); Dickson, supra, note 18, at 25-34. The major focus of the 1873 Constitutional Convention was on the legislative branch. R. Woodside, Pennsylvania, Constitutional Law 578 (1985).]

As Justice John Dean observed in 1893 in Perkins v. Philadelphia, "that convention, direct from the people, composed of the ablest and most experienced citizens of the Commonwealth, framed this Article 3 on legislation. Assuming, what was the settled law, that the General Assembly had all legislative power not expressly withheld from it in the organic law, they set about embodying in that law prohibitions which should in the future effectually prevent the evils the people complained of. Article 3 is almost wholly prohibitory….

Amici respectfully represent that the legislative process used in enacting Act 44 violates the express language and clear purpose of Article III, sections 1-4. In order to remedy this violation, however, Amici urge this Court to reconsider its analysis in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa. 1986). The analysis in that case has contributed to the apparent belief in the General Assembly that the provisions of Article III are mere technicalities to be circumvented, rather than core constitutional provisions guaranteeing due process of lawmaking in every instance to all the citizens of the Commonwealth. The instant case presents this Court with the opportunity to correct such misapprehensions and to simplify and clarify its future review of any challenges to legislation based on bad faith violations of Article III.

B. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa. 1986) and the cases following Consumer Party failed to properly apply the provisions of Article III of the Pennsylvania Constitution to a “sham legislative process.” This error must now be rectified.

We have seen above that Article III of the Pennsylvania Constitution represents the drafters' effort to articulate a core “due process of lawmaking” to be followed by the Legislature in our state. The essence of this due process of lawmaking is essentially the same as the requirement of “due process of law” so familiar to lawyers and judges. This essence has been described in the judicial context as adequate notice and an opportunity to be heard in a matter affecting a person's life, liberty or property. See, e.g., Hilkmann v. Hilkmann, 579 Pa. 568, 583, 858 A.2d 58, 71: “...formal notice and an opportunity to be heard provide ‘the central meaning of procedural due process’ in the United States. Furntes v. Shevey, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972).” (Chief Justice Cappy concurring)

Similarly, Article III requires a formal procedure to assure openness and fairness to all concerned and to protect the citizenry from “stealth legislation” as discussed above. See, City of Philadelphia v. Commonwealth, 575 Pa. 542, 555, 838 A.2d 566, 575. Thus, the requirements in section 1 and section 3 of Article III that a formal bill be introduced on one subject with a proper title and that it not be altered or amended to “change its original purpose” essentially goes to the issue of notice. Section 2, referring to an appropriate committee, goes essentially to the issue of proper review and deliberation (similar to hearing in the judicial context) as does section 4 on proper review, consideration and deliberation by the full bodies of the General Assembly.

The critical inquiry for a court, therefore, in reviewing a complaint of violation of Article III, should be whether, in bad faith, this essence of due process of lawmaking has been disregarded by the General Assembly. Professor Bruce Ledewitz of the Duquesne University Law School has suggested such an approach, Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq. L. Rev. 409 (1994). We urge this Court to adopt this approach and overrule the faulty analysis in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (Pa.1986). The Ledewitz approach would protect the General Assembly from undue judicial interference in the process of adoption of legislation, except when an egregious and flagrant violation of Article III, implicating the core of the due process of lawmaking, occurs, as it did in this case and in Consumer Party, supra.

Professor Ledewitz' analysis of Consumer Party, supra, and the passage of the Public Official Compensation Act of 1983, is exactly on point in our analysis of the essentially identical process used in the passage of Act 44. He concluded that the legislative process was a “sham” where, at the last possible moment, an entirely new bill (dealing with compensation) was substituted by a conference committee in “bad faith” for a bill on county vacancies. The original bill on county vacancies was introduced with an appropriate title, referred to committee, reported out and passed by both houses. Professor Ledewitz suggests that in such a situation we must look at the reality of what occurred, rather than creating a fiction, as, unfortunately, Chief Justice Nix did by treating the last-minute substitution of an entirely new bill on compensation as an “amendment” to the original bill on county vacancies. Certainly, in reality, it was no such thing.

This novel procedure of taking a county vacancy bill and transforming it into a pay raise was obviously done to avoid the normal procedures of lawmaking. Committees, readings, voting and so forth take time. For a pay raise, time – during the passage of which the talk-show hosts whip up opposition – can be fatal. Thus, the new bill was injected into the old shell.

******

Chief Justice Nix’ opinion for the Court essentially treated Senate Bill 270 as if it had been a real bill that was sent to conference committee and emerged heavily amended, rather than treating Senate Bill 270 as the new bill that it was. The Court concluded that, since conference committees are designed to hammer out differences, Article III, section 1’s prohibition of material alteration or amendment could not be applied to a bill that emerged from such a consensus building process.

This concern about the conference committees rings pretty hollow in a situation in which a totally new bill is inserted into an old Senate Bill number. In fact, application of Article III, section 1 to the entire lawmaking process, including the conference committee, need not interfere with any effort to hammer out consensus because section 1 only prohibits change in a bill’s “original purpose.” Conference committees do not make changes in the original purpose of a bill. Or, at least, the justices could interpret the phrase “original purpose” with flexibility so as not to interfere with such conferences or with the amendment process. The only context in which Article III, section 1 need block legislative action is a bad faith substitution of the very sort that occurred in Consumer Party. Ledewitz, supra, 32 Duq. L. Rev. 409, 439-441. (Emphasis added) (footnotes omitted)

Amici respectfully submit that Professor Ledewitz has captured the essence of the problem in Consumer Party, supra, which must be remedied in this case by the Court. The compensation legislation enacted as Act 44 was drafted in secret, behind closed doors and never subjected to the notice or deliberation requirements of Article III. The “real” bill, the one unveiled at the last possible moment in the middle of the night, was never subjected to rigorous review and debate in committee nor on three different days in each house. See Ledewitz, supra, 32 Duq. L. Rev. 409, 440. Furthermore, the original bill merely putting a ceiling on executive compensation was certainly “altered” so “as to change its original purpose.” Id. In reality, there were violations of all of the first four sections of Article III of the Constitution. Furthermore, the failure to follow these requirements led eventually to the unprecedented repeal of Act 44 by Act 72.

It is simply inconceivable that this debacle could have or would have occurred had the public been given adequate notice of what became Act 44 and adequate opportunity to weigh in on its merits or demerits. To say that the public was on notice that legislative leaders were considering a compensation bill is entirely beside the point. Under the Constitution, the public has a right to know the precise contents of any piece of legislation and the right to expect that the procedural requirements involving review, consideration, deliberation, revision, debate and thoughtful and considered decision-making will all be followed to honor the letter and the spirit of Article III.[1] Certainly, the temptation to circumvent Article III is always there, but the eventual harm to the integrity of our governmental institutions is substantial.

Therefore, Amici respectfully request this Court to substitute the workable “good faith” analysis suggested by Professor Ledewitz for the analysis employed in Consumer Party, supra, and the cases following Consumer Party, which has proved to be unworkable and in error. Such an analysis must lead to the declaration that Act 44 is unconstitutional in its entirety.[2]

III. THE SYSTEM OF UNVOUCHERED EXPENSES PROVIDED FOR IN ACT 44 VIOLATES THE PENNSYLVANIA CONSTITUTION. ON THIS ISSUE AS WELL, THIS COURT SHOULD RECONSIDER AND OVERRULE ITS DECISION IN CONSUMER PARTY OF PENNSYLVANIA v. COMMONWEALTH, 510 Pa. 158, 507 A.2d 323 (Pa. 1986).

Article III, Section 8 of the Pennsylvania Constitution provides:

The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, received any increase in salary or mileage, under any law passed during such term.

The Court's analysis of the issue of unvouchered expenses in Consumer Party, supra, 510 Pa. at 184-186, 507 A.2d at 336-337, is most unfortunate. The analysis is in error, and it has greatly contributed to the atmosphere of distrust and lack of confidence by the public in reaction to an abuse that flies in the face of the clear meaning and purpose of this constitutional provision.

In the analysis by Chief Justice Nix, there was again a willingness to accept a fiction – i.e., that calling a payment an “expense” allowance makes it such. But in Consumer Party, as here, it was quite clear that the members of the General Assembly are reimbursed for actual incurred expenses in the course of their official business. See R. 234a – 235a and 243a – 244a. Further, the amount of increase in the “unvouchered expenses” did not reduce or replace the amount of actual expenses reimbursed to legislators. In addition, the amount of increase is exactly equal to the amount of the salary increases scheduled to take effect upon the expiration of the terms of legislators presently serving in the General Assembly. R. 224a – 225a. As noted by Professor Ledewitz in discussing Consumer Party:

Although not related to the judicial pay raise, the Court's approval of the $10,000 increase in unvouchered expense allowances that apply to part of the State Senate was even more outlandish than upholding the bill as a whole. Legislators may not receive an increase in salary and mileage during the term in which they were elected. Pa. Const. Art. II, sec.8. Thus, State Senators elected in 1982 should simply have waited until their terms expired before obtaining the $10,000 pay increase. Because these senators were too greedy to wait for the end of their terms, the bill was written so as to give these senators a $10,000 increase in their unvouchered expense allowance until the end of their terms. After the end of the term, the expense account increase was to disappear and become a $10,000 increase in salary. Chief Justice Nix wrote, “[a]ppellants utterly failed to make any showing that the expense allowance is a sham.” Consumer Party, 507 A.2d at 338. No showing should have been necessary. Res ipsa loquitur.

Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq. L. Rev. 409, FN. 200 (1994). Cf. also 26 U.S.C. sec.274, 26 C.F.R. sec. 1.62-2 © (4).

(While Amici strongly agree with the above quoted analysis by Professor Ledewitz that the facts speak for themselves and lead to only one logical conclusion, it should be pointed out that Petitioner should be permitted to prove on the record, if deemed necessary by this Court in exercising its plenary jurisdiction, that the “unvouchered expenses” are, in fact, not paid for actual business expenses, which are fully reimbursed. They are, on the contrary, regular income or “salary,” that has simply been given another name.)

Therefore, Amici respectfully request that this Court correct its error in Consumer Party and clarify that the device of unvouchered expenses is unconstitutionally improper as an obvious circumvention of the Pennsylvania Constitution, Article II, Section 8.

IV. BECAUSE ACT 44 IS UNCONSTITUTIONAL IN ITS ENTIRETY, NO ISSUE ARISES UNDER ARTICLE V, SECTION 16(a) OF THE PENNSYLVANIA CONSTITUTION. FURTHER, THE NON-SEVERABILITY PROVISION IN THE STATUTE IS WITHIN THE LEGISLATURE’S AUTHORITY AND DISCRETION AND MAKES THE ENTIRE ACT UNCONSTITUTIONAL, IF ANY PORTION OF ACT 44 IS DEEMED UNCONSTITUTIONAL. THEREFORE, NO ISSUE ARISES UNDER ARTICLE V OF THE PENNSYLVANIA CONSTITUTION IN THAT CIRCUMSTANCE AS WELL. ONLY IF ACT 44 IS CONSTITUTIONAL IN ALL ITS PROVISIONS, DOES THE ISSUE OF ITS REPEAL AND APPLICABILITY TO THE JUDICIARY ARISE.

Amici have presented the reasons above why Act 44 must be deemed to be unconstitutional in its entirety. Respectfully, we represent that these reasons are compelling. Therefore, no issue under Article V, Section 16 (a) of the Pennsylvania Constitution relating to diminishment of judicial compensation arises, since no lawful increase in compensation was ever effected for any official of the Commonwealth.

Similarly under section 6 of Act 44 “…[i]f any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.” Thus, there simply is no issue under Article V, Section 16 (a) in the event any section of Act 44 is deemed unconstitutional for the same reason: no lawful increase was ever effected for any official of the Commonwealth. (Courts in this jurisdiction have sustained non-severability clauses as an appropriate exercise of discretion by the Legislature, since, without such a clause, the courts will normally favor severability. See Kennedy v. Commonwealth, 119 Pa. Cmwlth. Ct. 24, 546 A.2d 733 (1988). Cf. also, Brookins v. O'Bannon, 550 F. Supp. 30 (E.D. Pa. 1982); Pennsylvania Federation of Teachers v. School District of Philadelphia, 506 Pa. 1961, 484 A.2d 751 (1984). Further, the use of non-severability clauses in this jurisdiction by the Legislature is by no means unique or limited to its use in Act 44.)

Only if Act 44 is constitutional in all its provisions, does an issue under Article V, Section 16(a) arise regarding the constitutionality of its repeal, by Act 72. Such a result we believe would be in error for all the reasons stated above.

V. PETITIONER' S CHALLENGES ARE NOT MOOT.

Petitioner's challenges are not moot for several reasons:

First, this case cannot be deemed moot, since litigation, which litigation assumes the validity of Act 44, is now pending before this Court, namely, Herron v. Commonwealth of Pennsylvania,et al., No.163 EM 2005. As we have seen, only if Act 44 is constitutional in its entirety, is the Herron litigation, relating to the repeal of Act 44, facially viable. Therefore, as long as Herron is on the docket, this case is not moot. Indeed, Herron cannot properly be resolved without a resolution in the instant matter.

Secondly, “...it is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074-75. Certainly, the same principle is valid and should be applicable here.

Finally, this case “... raises an issue of important public interest, an issue which is capable of repetition yet is apt to elude review…” Fiori v. Commonwealth, 543 Pa. 592, 600, 673 A.2d 905, 909, FN. 4 (1995). While Amici do not wish to belabor the obvious, it is critically important that the constitutional issues involved in this case not be deferred. Rather, resolving and clarifying these issues are urgently required.

CONCLUSION

For all the reasons stated above, Amici respectfully request this Court to find Act 44 unconstitutional in its entirety because it is in violation of Article III, sections 1-4 of the Pennsylvania Constitution and to also find the system of unvouchered expenses contained in Act 44 in violation of Article II, section 8 of the Pennsylvania Constitution.

Respectfully submitted,

____________________________________

Mark P. Widoff, Esq.

Attorney I.D. No. 12660

Attorney for Amici Curiae

Timothy W. Potts

Russ Diamond, on Behalf of

PA Clean Sweep, Inc.

Eric Epstein, Coordinator,

on Behalf of RocktheCapital.org

1141 Country Club Rd.

Camp Hill, PA 17110

717-439-6397

717-303-2076 (fax)

Date: January 31, 2006

CERIFICATE OF SERVICE

I hereby certify that this ____ day of January, 2006, a copy of the foregoing Brief of Amici Curiae, Timothy W. Potts, Russ Diamond, on Behalf of PA Clean Sweep, Inc., Eric Epstein, Coordinator, on behalf of RocktheCapital.org was served upon the following via United Stated Mail, First Class, Postage Prepaid:

Gene Stilp

1550 Fishing Creek Valley Road

Middle Paxton Twp., PA 17112

Pro se

Amanda L. Smith, Deputy Attorney General

Susan J. Forney, Chief Deputy Attorney General

Office of Attorney General

Litigation Section

15^th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Commonwealth and Governor

Jonathan F. Bloom

Clark Hodgson, Jr.

Thomas W. Dymek

Stradley, Ronan, Stevens and Young, LLP

2600 One Commerce Square

Philadelphia, PA 19103

Counsel for Speaker Perzel

Sally Ann Ulrich, Chief Counsel

Pennsylvania Treasury Department

127 Finance Building

Harrisburg, PA 17120

Counsel for Treasurer Robert P. Casey, Jr.

Amy Groff

Linda J. Shorey

Kirkpatrick Lockhart Nicholson and Graham, LLP

17 N. 2^nd Street

18^th Floor

Harrisburg, PA 17101-1507

Counsel for President Pro Tempore Jubelirer

Gregory E. Dunlap, Deputy General Counsel

Commonwealth of Pennsylvania

Office of General Counsel

333 Market Street, 17^th Floor

Harrisburg, PA 17101

Counsel for Governor Rendell

____________________________________

Mark P. Widoff, Esq.

Attorney I.D. No. 12660

Attorney for Amici Curiae

Timothy W. Potts

Russ Diamond, on Behalf of

PA Clean Sweep, Inc.

Eric Epstein, Coordinator,

on Behalf of RocktheCapital.org

1141 Country Club Rd.

Camp Hill, PA 17110

717-439-6397

717-303-2076 (fax)

[1] In addition, in a participatory democracy, the people have a right to participate in the lawmaking process. See Article I, section 2, Pennsylvania Constitution.

[2] This Court has recently signaled a willingness to re-examine Consumer Party. See, Pennsylvanians Against Gambling Expansion Fund, Inc., v. Commonwealth, 583 Pa. 275, 316-318, 877 A.2d 383, 408-409 (2005). Further, this Court has, when necessary, previously removed mistaken precedents as an obstacle to proper implementation of the Constitution. See, e.g., Sprague v. Casey, supra, 520 Pa. at 58-59, 550 A.2d at 194-195. Finally, the normal presumption of constitutionality of a statute must yield to the clear language of the Constitution, as discussed above. This is even more so when, as in Consumer Party, “...the court’s very strained interpretation serves the judiciary's immediate financial interests. That's sort of situation is precisely the sort in which the justices should be most circumspect. If a judge is going to stretch the constitutional text, let it be to strike down the judges pay raise rather than to permit it.” Ledewitz, supra, 32 Duq. L. Rev. 409, 441.