[J-62-2017] [Mo: Todd]

|N THE SUPREME COURT OF PENNSYLVAN|A

MIDDLE D|STR|CT

B|LL|E WASH|NGTON, T|NA SM|TH, : No. 50 MAP 2016

OPAL G|BSON, PENNSYLVAN|A :

l\/|ENTAL HEALTH CONSUMERS' : Appea| from the Order of the
ASSOC|AT|ON, |\/|ENTAL HEALTH : Commonwea|th Court at No. 602 |\/lD
ASSOC|AT|ON |N PENNSYLVANIA, : 2012 dated |V|arch 28, 2016 and
I\/|ENTAL HEALTH ASSOC|AT|ON OF : exited March 29l 2016.

SOUTHEASTERN PENNSYLVAN|A, THE

PH|LA_DELPH|A ALL|ANCE, DRUG AND ARGUED: September13, 2017

ALCOHOL SERV|CE PROV|DERS
ORGAN|ZAT|ON OF PENNSYLVAN|A,
PENNSYLVAN|A COI\/|I\/|UNITY
PROV|DERS ASSOC|AT|ON, SUCCESS
AGA|NST /-\LL ODDS

THE DEPARTl\/|ENT OF PUBL|C
WELFARE OF THE COI\/|N|ONVVEALTH
OF PENNSYLVAN|A

APPEAL OF: B|LL|E WASH|NGTON,
T|NA S|\/llTH, OPAL G|BSON,
PENNSYLVAN|A l\/|ENTAL HEALTH
CONSU|\/|ERS' ASSOC|AT|ON, |V|ENTAL
HEALTH ASSOC|AT|ON |N
PENNSYLVAN|A, IV|ENTAL HEALTH
ASSOC|ATION OF SOUTHEASTERN
PENNSYLVAN|A, THE PH|LADELPH|A
ALL|ANCE, DRUG /-\ND ALCOHOL
SERV|CE PROV|DERS ORGAN|ZAT|ON
OF PENNSYLV/-\N|A, SUCCESS
AGA|NST ALL ODDS

CONCURR|NG OP|N|ON

 

JUST|CE BAER

DEC|DED: Ju|y 18, 2018

l concur in the result of the l\/lajority Opinion holding Act 80 of 2012
unconstitutional Neverthe|ess, l am unable to join the rationale to the extent it is based
solely on a violation of Article |ll, Section 4’s requirement that “[e]very bill shall be
considered on three different days in each House.”1 PA. CONST. ART. ll|, § 4. lnstead, l
Would conclude that the Act violates Section 4 to the extent it also violates Artic|e |ll,
Section 3’s requirement that “[n]o bill shall be passed containing more than one subject.”2
PA. CONST. ART. |ll, § 3. By basing its holding of unconstitutionality solely on a violation
of Section 4’s “three different days” requirementl | am concerned that the l\/lajority
unnecessarily expands this Court’s jurisprudence to infringe upon our General

Assembly’s authority to enact legislation

 

1 ln fu|l, Section 4, entitled “Consideration of bills,” provides as follows:

Every bill shall be considered on three different days in each
House. Al| 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. |l|, § 4.
2 |n full, Section 3, entitled “Form of bills,” provides, “No bill shall be passed containing
more than one subject, Which shall be clearly expressed in its tit|e, except a general

appropriation bill or a bill codifying or compiling the law or a part thereof.” PA. CONST.
ART.-|||, § 3.

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As fully explained by the l\/lajority, Section 4 was amended by the voters of this
Commonwea|th in 1967 to remove the requirement that “[e]very bill shall be read at length
on three different days in each House” and replaced it with the mandate that the bill merely
be “considered on three different days.” PA. CONST. ART. |ll, § 4 (1874), (1968).
l\/loreover, the 1967 revision maintained the prior distinction between bil|s, which must be
considered on three different daysl and amendments, which are addressed in a separate
sentence that requires that amendments “be printed for the use of the members before
the final vote is taken on the bill.” /d. l\/ly colleagues recognize that the import of the 1967
alteration was to ensure that the bill be considered three times but not require the onerous
process of reading the often-lengthy bills in full three times. l\/laj. Slip Op. at 16-17. The
l\/lajority additionally acknowledges that Section 4 allows for the legislative process of
amendments to improve the bill without restarting the “three different days” requirement
l\/laj. Slip Op. at 23.

The difficult question, therefore, is when a court should deem a change in the
legislation to constitute an amendment, which does not require consideration on three
different daysl and when it is new legislation necessitating three separate considerations
This Court has addressed this delicate question in the past by finding violations of Section
4 only in conjunction with violations of either Section 1 , which requires the original purpose
of the bill to be the same throughout its passage through either house,3 or Section 3,
which, as noted, demands that the bill address a single subject See St/'/p v.
Commonwea/th, 905 A.2d 918, 959 (Pa. 2006) (“Accordingly, because [the challengers]
have failed to establish a violation of Article l|l, Section 1 or 3, and because the bill was

read on three different occasions, [the challengers] have failed to establish an Article lll,

 

3 ln ful|, Section 1, entitled “Passage of laws,” provides “No law shall be passed except
by billl and no bill shall be so altered or amended, on its passage through either House,
as to change its original purpose.” PA. CONST. ART. |ll, § 1.

[J-62-2017] [rvio; Todd] - 3

Section 4 violation.”); Pennsylvanians Aga/'nst Gamb/ing Expans/'on Fund, /nc. v.
Commonwea/th, 877 A.2d 383, 410 (Pa. 2005) (requiring that petitioners “must
necessarily establish that Article lll, Section 1 or 3 had been violated" to demonstrate a
violation of Section 4).4

The policy requiring a violation of Section 4 only in conjunction with a violation of
the single subject or original purpose requirements provides logical guidance to both the
courts and the legislature in determining whether a change to a bill is merely an
amendment or whether it is in actuality a new bill addressing a different purpose or subject
from the original bill. Where an amendment is the same subject and the same purpose,
caselaw has delineated it an amendment rather than new legislation /d.

The l\/lajority Opinionl however, does not address this Court’s historical reticence
to strike legislation based solely upon an infringement of Section 4, despite the issue
being directly addressed by Appellees. Appellee Brief at 23 (observing that “a violation
of Section 4 cannot be established without a corresponding violation of Section 1 or
Section 3”). Accordingly, l distance myself from the l\/lajority’s rationale to the extent it is

based on Section 4 alone.

 

4 The Commonwea|th Court has likewise required a violation of Sections 1 or 3 prior to
finding a Section 4 violation. See Christ the K/'ng Manor v. Commonwea/th, Dept. of
Pub//`c We/fare, 911 A.2d 624, 637 (Pa. melth. 2006) (holding “a violation of Article l||,
Section 4 is dependent upon a violation of Article lll, Sections 1 or 3”), aff’d, 951 A.2d 255
(Pa. 2008); Marcavage v. Rende//, 888 A.2d 940, 947 (Pa. melth. 2005) (same);
Common Cause/Pennsy/van/'a v. Commonwea/th, 710 A.2d 108, 121 (Pa. melth. 1998)
(“ln light of our determination that the enactment of Act 3 did not violate either Article |ll,
Section 1 or Article ll|, Section 3 of the Pennsylvania Constitution, we also conclude that
the General Assembly did not violate Article |ll, Sections 2 and 4 of the Pennsylvania
Constitution.”), aff’d, 757 A.2d 367 (Pa. 2000); Pennsylvania AFL-C/O by George v.
Commonwealth, 683 A.2d 691, 694 n.4 (Pa. me|th. 1996) (observing that a violation of
Section 4 is “dependent on a finding of a violation of Article |ll, Section 1 or 3”); but see
Pennsylvania Ass'n of Renta/ Dea/ers v. Commonwea/th, 554 A.2d 998, 1002 n.2 (Pa.
me|th. 1989) (“Because of our resolution of PARD's claims under Section 2 and 4 of
Article l|l, we need not address PARD's argument thatArticle lll, Section 1 was violated.”).

[J~62-2017] [ivio; Todd] - 4

Nevertheless, l fully concur with my colleagues’ analysis of Act 80 as failing the
germaness test, which the l\/lajority observes is imported from and applicable to Section
3’s requirement that the bill contain a single subject. l\/laj. Slip Op. at 23 n.33, 24 n.34.
Accordingly, | would hold that Act 80 violates the single subject requirement of Section 3
for the reasons set forth by l\/lajority Opinion in footnote 36 on page 28 and, thus, that it

necessarily also violates Section 4 s three different days” requirement Thus, l concur in

the result of today’s decision

[J-62-2017] [ivio; Todd] - 5

