                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


IN RE: AMENDMENT TO THE         : No. 8 MM 2017
PENNSYLVANIA RACE HORSE         :
DEVELOPMENT AND GAMING ACT      :
                                :
                                :
PETITION OF: PENNSYLVANIA       :
SENATE, SENATOR JOSEPH SCARNATI :
III, SENATOR JAKE CORMAN, AND   :
SENATOR JAY COSTA               :


                               DISSENTING STATEMENT

JUSTICE WECHT                                                  FILED: January 20, 2017

       In Mount Airy # 1, LLC v. Pennsylvania Department of Revenue, 2016 WL

6210519 (Pa. Sept. 28, 2016), this Court struck down a key portion of the Pennsylvania

Race Horse Development and Gaming Act (the “Act”). Specifically, we held that the

Act’s “local share assessment” (a tax imposed upon slot machine revenue) violates the

Uniformity Clause of the Pennsylvania Constitution. Knowing that several counties and

municipalities, which ultimately receive the local share assessment’s proceeds, rely

upon such revenue to fund important public services, we took the unusual step of

staying our decision for 120 days in order to afford the General Assembly an opportunity

to enact remedial legislation. It has failed to do so.

       On January 12, 2017, two weeks before the scheduled expiration of our stay,

Petitioners (collectively, “the Senators”) filed with this Court an application for

extraordinary relief, wherein they assert that our four-month stay was insufficient.

Today, the Court grants the Senators’ application, and extends our stay for an additional

120 days. Respectfully, I must dissent from the Court’s order, which, in casting a lifeline
to the General Assembly, enmeshes this Court in the legislative process and invites

future order-bargaining.

      In their application for relief, the Senators set forth myriad reasons for the

General Assembly’s failure to amend the Act within the 120 days that this Court

allowed.1 For example, the Senators underscore that only twelve legislative “session

days” were scheduled during the relevant 120-day period (omitting the fact that other

days could have been added at the will of the Senate 2). They also note that the Senate

generally disfavors enacting legislation during the so-called “lame duck session”

(although it certainly can do so and presumably continues to go about the people’s

business). In short, the Senators paint a picture of a legislative body that simply could

not find the time to enact a constitutional local share assessment.

      In fact, the General Assembly had ample opportunity to amend the Act; it simply

lacked the political will to do so.3 Indeed, as the Senators acknowledge, the Senate

swiftly passed a temporary “fix” to the Act’s tax scheme in October 2016, only one

month after our decision in Mount Airy. That legislation would have imposed a slot-

machine tax structure different from the one that we struck down in Mount Airy, and

1
       The Senators’ arguments imply that the General Assembly was completely
blindsided by our decision on September 28, 2016. Although the Senators had no way
of knowing the outcome of the litigation, they almost certainly would have known that we
had pending before us multiple challenges (filed by separate casinos) to the Act’s tax
scheme. While perhaps unanticipated, our holding was not unforeseeable.
2
      See 101 Pa. Code § 7.21.
3
      As the Senators recognize in their application for relief, many casinos have
entered into agreements with their host municipalities to continue paying the local share
assessment even in the absence of a legislative mandate to do so. See Senators’
Application for Relief, 1/12/2017, at 3 n.1. The fact that several local governments have
found opportunities to broker such deals since we issued our opinion in Mount Airy
suggests that the General Assembly had adequate time to amend the Gaming Act’s tax
scheme had such amendment been prioritized.
would have expired on May 1, 2017, thereby allowing an interim period for crafting of a

final bill. See H.B. 1887 PN 4140 (2015-2016). That the Senate’s proposed legislation

did not become law has nothing to do with this Court, nor with the number of scheduled

session days. The reason lies elsewhere.

       Instead of passing the Senate’s proposal, the House further amended the bill to

include language that, among other things, would legalize Internet gambling, regulate

fantasy sports betting, and allow gaming in some of Pennsylvania’s airports. See H.B.

1887 PN 4145 (2015-2016). This was not the first time that the House passed such a

measure. In June 2016, approximately three months before we issued our decision in

Mount Airy, the House passed a comprehensive bill that similarly would have expanded

legal gambling within the Commonwealth.          See H.B. 2150 PN 3607 (2015-2016)

(providing for expanded gambling in the Commonwealth, including sports wagering,

“interactive gaming,” and slot machines in qualified airports). The Senate, which has

long disfavored a sweeping gambling expansion, never took up the bill.

       The House could have enacted the Senate’s temporary no-strings-attached

legislation. It did not. Instead, the House added to the proposal a set of reforms that

the Senate already had rebuffed in the past. No conference committee was convened

to attempt reconciliation of the Senate and House measures.             And the problem

apparently languished. Now, with three session days remaining until our stay in Mount

Airy expires, the Senators—having failed to convince their colleagues in the House to

keep slot-machine tax revenue flowing to counties and municipalities until May 2017—

turn to this Court with a request for still more time. Stalled in a political traffic jam of
their own making, the legislators ask this Court to build them a detour. We should

decline to do so.4

       It is important to note that the relief the Court grants today is anything but a

routine extension of time.     Although extending our stay here is nonprecedential in

theory, the message sent to the General Assembly—that the decisions this Court issues

can be negotiated post hoc—doubtless will endure.           Having granted the Senators’

application for relief, in other words, these sorts of requests likely will become the rule

rather than the exception.

       Even more important, staying our decision in Mount Airy effectively allows the

Commonwealth of Pennsylvania to defy the Constitution of Pennsylvania, albeit for a

limited time. Put differently, as long as our stay continues in effect, some entities will be

required to pay a tax that this Court has declared unconstitutional. Mount Airy, 2016

WL 6210519, at *5. That is an extraordinary imposition on taxpayers, as well as a

derogation, however temporary, of this Court’s authority “to say what the law is.”5 A

stay that countenances continued collection of an unconstitutional tax is a tool that the

Court should wield with extreme caution and humility. It bears remembering that the

coercive power of the state stands behind a tax law. Where the law is unconstitutional,


4
       Notably, the General Assembly’s deadline for enacting remedial legislation is
substantially more flexible than the Senators suggest in their application for relief.
Although the provisions that we struck from the Gaming Act required casinos to remit
slot-machine taxes daily, the funds are transferred to municipalities only once per
quarter. 4 Pa.C.S. §§ 1403(c)(2), (c)(3). With our stay in effect, the most recent
quarterly distribution occurred on January 15, 2017. Therefore, so long as the General
Assembly passes remedial legislation on or before April 15, 2017, it can ensure that
local governments do not miss a single payout. Thus understood, the Senators’
requested 120-day extension would actually give the General Assembly until July to
enact a constitutional slot-machine tax.
5
       Marbury v. Madison, 5 U.S. 137, 177 (1803).
the judiciary should be loath to allow the government to perpetuate the imposition of that

power on citizens.

       I do not doubt that the legislative process imposes many difficult and stressful

challenges upon our elected lawmakers.           But this Court should not, and I daresay

properly cannot, ease the burdens of democracy by suspending the Pennsylvania

Constitution at the first sign of political gridlock. I respectfully dissent.
