On June 9, 2020, the Pennsylvania General Assembly passed a concurrent resolution terminating the disaster emergency declared by Governor Tom Wolf on March 6, 2020. The Governor has vowed to ignore the resolution and refuses to sign it. Does the General Assembly have the power to terminate the disaster emergency without Governor Wolf’s approval? Let’s look at the law.
Pursuant to the Emergency Management Services Code, 35 Pa.C.S. §§ 7101 et seq. (scroll down to Part V) (the “Code”), which is the primary law relied upon by the Governor when passing the disaster declaration and imposing various restrictions, the Governor has broad authority when “a disaster has occurred” or “is imminent.” 35 Pa.C.S. § 7301(c). Such powers include the power to “[d]irect and compel the evacuation of all or part of the population form any stricken or threatened area” and “[c]ontrol ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein.” 35 Pa.C.S. § 7301(f).
However, according to the Code, “The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of disaster emergency.” 35 Pa.C.S. § 7301(c). That is the provision the General Assembly relies upon to purportedly end the disaster emergency declaration. The plan language of Section 7301(c) of the Code does not require the Governor’s approval of the concurrent resolution and, in fact, requires the Governor to terminate the disaster emergency declaration upon passage of a concurrent resolution.
However, it is equally true that a law that does not comport with the Pennsylvania or United States Constitutions is void upon being challenged. Interestingly, the foregoing language, to the extent it purports to provide the General Assembly with the seemingly unilateral power to terminate a disaster emergency declaration, appears to be unconstitutional. Article III, Section 9 of the Pennsylvania Constitution states, “Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.” In other words, the Pennsylvania Constitution requires that any concurrent resolution be approved by the Governor. No statute can override that provision, or so the argument goes. To change it, a constitutional amendment would be required.
However, in Commonwealth v. Kuphal, 347 Pa. Super. 572, 500 A.2d 1205 (1985), a nearly 35-year-old decision, a somewhat analogous statute was held to be constitutional by the Pennsylvania Superior Court (intermediate appellate court). There, a statute was passed creating the Pennsylvania Commission on Sentencing. The law directed the Sentencing Commission to adopt sentencing guidelines and then publish them in the Pennsylvania Bulletin. The law stated that after publication, “[t]he General assembly may by concurrent resolution reject [the guidelines] in their entirety … within 90 days of their publication” but if not so rejected, the guidelines would become effective 180 days after publication. Guidelines were adopted and published, but the General assembly timely rejected them by concurrent resolution. Reading Article III, Section 9 of together with Article II, Section 1, which states that “[t]he legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of representatives),” the Court held that the General Assembly’s rejection of the guidelines was not an “exercise of legislative power” because the guidelines were not already in effect and, therefore, the rejection merely maintained the status quo. The Court explained that “the ‘legislative power’ with respect to the sentencing guidelines was exercised not when the General Assembly rejected the first set of guidelines, but when it passed the Act which created this procedure for adopting the guidelines. The Act itself was passed by both Houses and signed by the Governor. This was the ‘presentment’ required by our Constitution. The rejection of the guidelines was not an ‘exercise of legislative power’ such that it also required presentment to the Governor; hence the sentencing guidelines are not invalid” pursuant to Article III, Section 9 of the Constitution.
Of course, the Kuphal decision was by the Pennsylvania Superior Court, not the Pennsylvania Supreme Court, and the Supreme Court is not bound by Pennsylvania Superior Court decisions. In any event, the same argument may support the General Assembly with regard to its purported termination of the disaster declaration. The “legislative power” was not exercised with respect to passage of the concurrent resolution but instead when the Code was passed. Therefore, pursuant to the reasoning in Kuphal, the General Assembly may terminate the disaster declaration through a concurrent resolution without the Governor’s approval. See also, Costa v. Cortes, 142 A.3d 1004, 1011 n. 5 (Pa. Cmwlth. 2016) (“Traditionally, concurrent resolutions have not required approval of the governor, because they were not considered an exercise of legislative power.”)
But, then there is Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). There, the same issue came before the Pennsylvania Supreme Court after a criminal defendant was sentenced for a crime in accordance with the sentencing guidelines. The first set of guidelines were rejected by the General Assembly through a concurrent resolution in accordance with the applicable statute. The second set of guidelines, which were harsher, were not rejected by the General Assembly. The criminal defendant argued that since the General Assembly’s rejection of the first set of more lenient sentencing guidelines was not approved by the Governor as required by Article III, Section 9 of the Constitution, such rejection was unconstitutional and ineffective. The Supreme Court agreed, holding, “in order to reject guidelines adopted by the Commission, the General Assembly must pass such a resolution to which the concurrence of both Houses is necessary; the conclusion is inescapable that it must thereafter be presented to the Governor and approved by him before it can take effect. Because the rejection resolution here was not presented to the Governor, it should not have taken effect ….” Thus, Sessoms appears to implicitly overrule Kuphal, such that where a statute permits some act by concurrent resolution, that resolution must be approved by the Governor before it is effective. See also, West Shore School District v. Pennsylvania Labor Relations Board, 534 Pa. 164, 626 A.2d 1131 (1993) (Striking down statute reestablishing a state agency upon adoption by theGeneral Assembly of a concurent resolution without requiring the approval of the Governor).
Nonetheless, this issue is destined to go before the Pennsylvania Supreme Court, which has a 5-2 democratic majority. The Governor has vowed to challenge the validity of the concurrent resolution, and the General assembly has vowed to defend it as effective without the need for gubernatorial approval. The Pennsylvania Supreme Court is likely to take up the matter, perhaps using its “King’s Bench” power to immediately hear the case instead of waiting for it to first wind its way through the lower courts.
UPDATE 6/18/2020: As expected, Governor Wolf filed a petition asking the Pennsylvania Supreme Court to immediately take up this issue based upon the Court's “King's Bench” power. On June 17, 2020, the Court granted that petition. Republican state lawmakers had originally filed suit in the Pennsylvania Commonwealth Court and oral argument was scheduled for June 29, 2020. The Supreme Court stayed the Commonwealth Court proceedings and indicated that it would decide the matter on the merits “in due course” based on the filings submitted in both Courts.
UPDATE 7/1/2020: The Pennsylvania Supreme Court today ruled in favor of Governor Wolf, holding that the concurrent resolution must be approved by the Governor for it to be legally effective. Justice Wecht drafted the majority opinion, which was joined by Justices Baer, Todd and Donohue. As expected, the majority Court relied heavily on the Sessoms case mentioned above. Justice Dougherty wrote his own concurring and dissenting opinion, in which he agreed with the majority that the concurrent resolution needed to be approved by the Governor to be effective, but he also believed that the Emergency Management Services Code should be struck down in its entirety. Justice Saylor wrote a dissenting opinion, which was joined by Justice Mundy.