                         [J-29-2017][M.O. – Wecht, J.]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT


JOSEPH B. SCARNATI, SENATOR AND     :   No. 3 MAP 2016
PRESIDENT PRO TEMPORE OF THE        :
SENATE OF PENNSYLVANIA; JAKE        :   Appeal from the Order of the
CORMAN, SENATOR AND MAJORITY        :   Commonwealth Court at No. 579 MD
LEADER OF THE SENATE OF             :   2014, dated 12/30/15 (finalized on
PENNSYLVANIA; JAY COSTA,            :   1/29/16)
SENATOR AND MINORITY LEADER OF      :
THE SENATE OF PENNSYLVANIA,         :
                                    :
                                    :
                 Appellant          :
                                    :
                                    :   ARGUED: May 9, 2017
                                    :
            v.                      :
                                    :
TOM WOLF, GOVERNOR OF               :
PENNSYLVANIA; RANDY ALBRIGHT,       :
SECRETARY OF THE BUDGET;            :
TIMOTHY A. REESE, STATE             :
TREASURER OF PENNSYLVANIA;          :
DENNIS M. DAVIN, SECRETARY OF       :
COMMUNITY AND ECONOMIC              :
DEVELOPMENT; CINDY ADAMS DUNN,      :
SECRETARY OF CONSERVATION AND       :
NATURAL RESOURCES; JOHN H.          :
QUIGLEY, SECRETARY OF               :
ENVIRONMENTAL PROTECTION;           :
CURTIS M. TOPPER, SECRETARY OF      :
GENERAL SERVICES; KATHY             :
MANDERINO, SECRETARY OF LABOR       :
& INDUSTRY; MAJOR GENERAL JAMES     :
R. JOSEPH, ADJUTANT GENERAL OF      :
PENNSYLVANIA; JOSH SHAPIRO,         :
CHAIRMAN OF THE PENNSYLVANIA        :
COMMISSION ON CRIME AND             :
DELINQUENCY,                        :
                                    :
                 Appellee           :
                               CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                   DECIDED: November 22, 2017

      I agree with the majority that the governor’s veto attempt failed. I also join the

majority opinion except for its conclusion that both chambers of the General Assembly

must be adjourned to prevent return of a bill to the originating house, thereby triggering

the file-and-proclaim procedure.

      Sound logic dictates that it is only the adjournment of the originating chamber

that can prevent the Governor from returning the bill to that chamber. Accord In re ‘An

Act to Amend an Act Entitled ‘An Act Concerning Pub. Utils.’’, 84 A. 706, 710 (N.J.

1912) (noting that “it is the adjournment of the house of origin alone, and not of both

branches of the Legislature, which prevents executive action”); see also Brief for

Appellants at 20 (“[W]hat does it matter if the other House has lingered in session? The

Constitution does not permit the vetoed bills to be returned to that other House,

because the bills did not originate there.”).   For this reason – and as the majority

acknowledges, see Majority Opinion, slip op. at 19 – courts in some other states with

similar constitutional provisions have understood the term “General Assembly” or

“Legislature” in this context to refer to the originating house.    See Opinion of the

Justices, 175 A.2d 405, 406 (Del. 1961) (“Of course, when the Constitution speaks of an

adjournment by ‘the General Assembly’, it necessarily means an adjournment of the

originating house.”); In re ‘An Act to Amend an Act Entitled ‘An Act Concerning Pub.

Utils.’’, 84 A. at 710 (indicating that “the necessary inference is that the words ‘the

Legislature’ are used in this connection as synonymous with ‘the house of origin’”).

      Although reading the text this way is problematic in the sense that it is in tension

with the ordinary meaning of “General Assembly,” requiring both chambers to be

adjourned is equally problematic. As the House Republican and Democratic Caucuses

                            [J-29-2017][M.O. – Wecht, J.] - 2
point out, a literal reading of Section 15 would lead to a conundrum: if the originating

house has adjourned but the other house has not, the Governor (a) cannot return the

bill to the originating house, and (b) cannot use the file-and-proclaim procedure since

there has been no adjournment of the General Assembly as a whole. See Brief for

Amici    Republican   &      Democratic     Caucuses   of   the   Pennsylvania   House   of

Representatives at 14 (referring to this situation as a “Catch 22”).1

        The majority’s interpretation could therefore completely preclude an executive

veto of a particular bill.    This, in turn, would undermine the checks and balances

inherent in our tripartite government as set forth in the state charter. To my mind, it

seems implausible that the framers of Sections 15 and 16, and the electorate which

approved them, intended such a result. See generally Commonwealth v. Novak, 395

Pa. 199, 214, 150 A.2d 102, 109-10 (1959) (suggesting that constitutional provisions

should not be interpreted to lead to impractical or unreasonable results); Jubelirer v. Pa.

Dep’t of State, 859 A.2d 874, 877 n.2 (Pa. Cmwlth. 2004) (en banc) (emphasizing that

the Pennsylvania Constitution should be interpreted “to ensure that its checks and

balances will continue into the future”).

1
 Appellants observe that the Senate may consent to the adjournment of the House
while the Senate stays in session, and vice versa. See Brief for Appellants at 19 n.3.

To the extent the majority opinion may be read to suggest that such an adjournment
would in fact be a “temporary recess,” see Majority Opinion, slip op. at 21, the
Constitution clearly contemplates that one chamber can adjourn for longer than three
days so long as it obtains the consent of the other. See PA. CONST. art. II, §14 (“Neither
House shall, without the consent of the other, adjourn for more than three days . . ..”).
Additionally, simply re-labeling a short adjournment as a “temporary recess” does not
alleviate the underlying problem, as the governor may try to return the bill on the last
day possible while the originating chamber is in temporary recess and the other
chamber is in session. In that circumstance, the governor cannot return the bill to the
originating house (since it is in recess), and he also cannot file-and-proclaim since his
inability to return the bill is not due to the General Assembly’s adjournment.


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       As a final observation, the majority emphasizes that in this case, both chambers

were, in fact, adjourned on the day the governor attempted to return the bill to the

House of Representatives. See Majority Opinion, slip op. at 2 n.3; see also id. at 22

(observing that “the General Assembly had, in fact, adjourned when the Governor

sought to return the bills and his objections on July 10, 2014”). That being the case, it

can reasonably be argued that we need not presently resolve the issue of whether the

General Assembly as a whole, or only the originating House, must be adjourned to

prevent a gubernatorial return for purposes of Article IV, Section 15. Cf. In re Fiori, 543

Pa. 592, 600, 673 A.2d 905, 909 (1996) (referring to the precept that “courts should

avoid constitutional issues when the issue at hand may be decided upon other

grounds”). Such a precept seems particularly salient here, since our interpretation – if it

leads to practical difficulties in governance – cannot be legislatively amended. See

Hunt v. Pa. State Police, 603 Pa. 156, 174, 983 A.2d 627, 638 (2009) (recognizing that

the courts have the final word on matters of constitutional dimension, in contrast to the

statutory arena in which the Legislature can “correct any errant interpretation of its

intentions” (internal quotation marks, citation, and emphasis omitted)). 2




2
  The majority describes this concern as “inapt” and emphasizes that it is presently
“necessary to answer the question” of whether the General Assembly had adjourned on
July 10, 2014, as such adjournment was required for invocation of the governor’s file-
and-proclaim procedure. Majority Opinion, slip op. at 37 n.17. While it is true that we
must ascertain whether the General Assembly had adjourned for Section 15 purposes,
our present disagreement arises because the majority concludes that, in the
hypothetical case that the House of Representatives alone had adjourned, such
condition would not have been satisfied. See id. at 20-21. My point is that, since it is
undisputed that both chambers were not in session on the date in question, we need not
address such a hypothetical scenario in order to conclude that the “General Assembly,”
as that term is used in the last sentence of Section 15, had indeed adjourned, thus
implicating the file-and-proclaim process.


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      Accordingly, barring an interpretation along the lines of the above, I would, in the

alternative, favor deferring any holding as to the meaning of the term “General

Assembly” – as it appears in the last sentence of Article IV, Section 15 – to a future

dispute in which its proper construction is material to the outcome.




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