M.P. v. Commonwealth

CRAIG, President Judge. Proceedings In This Court Before this court is a motion of M.P., an undisclosed elected official of Pennsylvania, for summary judgment pursuant to M.P.’s petition for declaratory judgment against the State Ethics Commission (SEC). The history of the proceedings follows. The SEC commenced an investigation against M.P. on May 1, 1986. On December 28, 1987, three days before the date of the Sunset Act’s1 termination of the SEC’s existence, the SEC issued to M.P. a preliminary order outlining its case against M.P. Meanwhile, the Leadership Committee of the House and Senate of the General Assembly, pursuant to § 4(4) of that Act, 71 P.S. § 1795.4(4), granted two six-month extensions to the SEC, extending its termination date to December 31, 1988. The SEC scheduled a due process hearing on the preliminary order for January 25, 1989. The SEC, at M.P.’s request, rescheduled the hearing for February 23, 1989. Before the February 23, 1989 hearing, M.P. filed with this court a petition for declaratory judgment and special injunction and motion to impound court record. On February 28, 1989, the SEC filed preliminary objections to the petition for declaratory judgment and special injunction and also filed an answer in opposition to the motion to impound. M.P. withdrew his petition for special injunction and this court issued an order on March 1, 1989, dismissing the SEC’s preliminary objections to M.P.’s petition for special injunction. On March 15, 1989, this court denied M.P.’s motion to impound. On May 16, 1989, this court overruled the SEC’s preliminary objections to the petition for declaratory judgment and on May 31, 1989, the SEC filed an answer to M.P.’s motion for declaratory judgment. — 431 — On June 26, 1989, the SEC filed a motion for summary judgment. M.P. filed a brief in response to the motion for summary judgment and this court held oral arguments on the matter on October 4, 1989. On December 13, 1989, the Pennsylvania Supreme Court issued its decision in Blackwell v. State Ethics Commission, 523 Pa. 347, 567 A.2d 630 (1989) (Blackwell II). In Blackwell II, the Supreme Court concluded that the Leadership Committee unconstitutionally extended the SEC’s termination date because the postponement was a legislative act requiring a bicameral vote and presentment to the governor. Therefore, the SEC was in its six-month wind-up period beginning December 31, 1987 and was a legal nonentity from June 30, 1988 to June 26, 1989. On January 22, 1990, this court denied the SEC’s motion for summary judgment without prejudice in order to give the parties an opportunity to submit briefs conveying their views as to the impact of the Blackwell II decision. On March 30, 1990, the Supreme Court, in Blackwell v. State Ethics Commission, 524 Pa. 403, 573 A.2d 536 (1990) (Blackwell IV), assumed plenary jurisdiction over the present case and related cases involving the Sunset issue. In Blackwell v. The State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (1991), (Blackwell V), the Supreme Court concluded that its holding in Blackwell II applied to the present case and remanded the case to this court for proceedings consistent with the Blackwell II decision. On August 21, 1991, M.P. filed a motion for summary judgment and this court heard oral argument on the matter on October 11, 1991. Motion for Summary Judgment on the Petition for Declaratory Judgment Summary relief can be granted only where no material fact is in dispute and where the right to relief of the applicant is clear. Gartner v. Pennsylvania Board of — 432 — Probation and Parole, 79 Pa.Commonwealth Ct. 141, 469 A.2d 697 (1983). M.P. argues that this court should grant his motion for summary judgment because of two cases, State Ethics Commission v. Anderson, 130 Pa.Commonwealth Ct. 608, 568 A.2d 1368 (1990), and Blackwell v. State Ethics Commission, 130 Pa.Commonwealth Ct. 646, 569 A.2d 378 (1990) (Blackwell III), both cases affd, Blackwell V. In Anderson, the SEC filed in this court on October 7, 1988, a petition to compel Anderson to file financial disclosure statements. Anderson filed a motion for judgment on the pleadings stating that the commission was without the authority to pursue the action because the SEC was a legal nonentity from June 30, 1988 to June 26, 1989. This court, citing Blackwell II, granted Anderson’s motion for judgment on the pleadings and dismissed the SEC’s petition seeking injunctive relief to compel the respondents to file financial interest statements. In Blackwell III, the SEC issued on October 7, 1988, a subpoena to three Philadelphia City Council members. The three City Council members filed a motion for judgment on the pleadings with this court, and on January 8, 1990, this court granted the motion, stating in the order: 1. The petitioner’s motion for judgment on the pleadings is granted to the extent that the court hereby declares to be unlawful and void the State Ethics Commission’s investigation of the petitioners and proceedings against them conducted after June 30, 1988, including the subpoena issuance of October 7, 1988. M.P. argues that his case is similar to Anderson and Blackwell III because the SEC unlawfully continued its investigation during the SEC’s Sunset period. Therefore, M.P. argues, summary relief is proper. However, the SEC argues that Blackwell III and Anderson are distinguishable from the present case because in this case the SEC took no substantive action during the Sunset period. The SEC argues that it completed its — 433 — investigation of M.P. before Sunset so that during the Sunset period nothing substantial occurred. The SEC states that the due process hearing scheduled for February 28, 1989, was merely a formality and not a significant act. The debate of the parties on this score brings out a key aspect of this case which could possibly distinguish it from the Blackwell cases and the Anderson case. This case presents, for the first time, the particular question of whether the SEC, as now reestablished, may resume and continue proceedings begun by it against named individuals during the earlier period of its lawful existence, before it became a legal nonentity by virtue of the Sunset Act and the ineffectuality of the attempted continuation by the Leadership Committee of the General Assembly; M.P. here seeks a judgment mandating that M.P. shall not be subject to any further proceedings by the SEC. The actual holdings in the preceding cases did not specifically deal with that question. Each of those preceding cases involved the validity or invalidity of particular actions taken by the SEC during its period of existence as a legal nonentity. In Blackwell III the order of this court was to declare unlawful and void the SEC’s “investigation of the petitioners and proceedings against them conducted after June 30, 1988, including the subpoena issuance of October 7, 1988----” In Blackwell II, the Supreme Court declared that [T]he Commission ceased to legally exist as of June 30, 1988 following the automatic wind up period provided by section (f) of the Sunset Act. Although the Commission has now been constitutionally reestablished (presumptively) as of June 26,1989, in the interim the Commission was a legal nonentity and any actions taken by the Commission during that period are also null and void. (Emphasis added.) Blackwell II, 523 Pa. at 362, 567 A.2d at 638. Thus, in literal terms, the mandate of the Supreme Court and this court in the Blackwell cases did not, in so many — 434 — words, forbid any resumption of action by the SEC with respect to the same cases after it had been reestablished. In Anderson, our specific holding was to refuse to award injunctive relief to the SEC to compel the persons being investigated to file financial disclosure statements. Our holding was to refuse such relief on the ground that, in October of 1988, when the commission sought that injunctive relief from us, it had no legal existence and therefore no standing before us, just as the Supreme Court in Blackwell II held that the commission, during the period that it was a legal nonentity, could not be treated as being in existence for the “filing of the appeal in this court.” Blackwell II, 523 Pa. at 362, 567 A.2d at 638. Therefore, in this case, where we are not required to reach a holding as to the validity or invalidity of any action taken by the commission during its period of nonexistence, we must confront squarely the question of whether the investigations begun and actions taken by the commission during its earlier period of lawful existence survived in limbo, so that the SEC can now proceed further in the same matter against the same party upon the authority of its legislative revival accomplished by statutory enactment as of June 26, 1989. Can this court logically conclude that any proceedings or investigations, commenced or even concluded as investigations, before the Sunset date, can be resurrected after the agency, the SEC in this case, was terminated under the Sunset Act? Section 6 of that Act, in subsection (c), 71 P.S. § 1795.6(c), listed the SEC among the agencies named after the following statement: (c) The following agencies together with their corresponding statutory functions and duties shall terminate all activities and shall go out of existence on December 31, 1987____ (Emphasis added.) Section 6(f), 71 P.S. § 1795.6(f), added: (f) Agencies terminated shall be given until June 30 of the year following the one in which they are terminated to wind up their affairs. During that period, the — 435 — Governor may petition the General Assembly for a review of the termination but the agency shall be terminated unless the General Assembly passes a law to the contrary. (Emphasis added.) In the light of that unequivocal language as to termination, with the ineffectuality of commission continuation being settled law, we cannot conclude that any function or proceeding can be revived after such definitive declarations of the agency’s termination and nonexistence. The SEC draws our attention to § 9 of Act 92, 65 P.S. § 409 note, the new law which reconstituted the SEC as of June 26, 1989, providing as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to this act if any elements of the violation occurred prior thereto. That language makes clear that Act 9 has no application to the alleged violations in this case, which allegedly were committed before 1989. However, SEC counsel relies upon the above language which states that “causes of action initiated for such [prior] violations shall be governed by the prior law, which is continued in effect for that purpose____” SEC counsel argues that even if no investigation against M.P. has survived, the SEC could now initiate an investigation anew under the former State Ethics Act, Act 170 of 19783. However, both the SEC’s argument and also the above quoted terms of § 9 of Act 9 fail to reckon with the conclusive effect of the Sunset Act upon the former State Ethics Act, Act 170. Can Act 9 effectively declare that the earlier law, and therefore the earlier existence of the SEC, “is continued in effect” despite the Sunset Act’s unequivocal declaration — 436 — that the existence of the SEC itself ended and did not continue beyond the 1987 termination date and the mid-1988 wind-up date? In one sense, SEC counsel appears to contend that § 9 of Act 9 now has bridged over the period of nonexistence of the agency. The conclusion must be otherwise. Because the agency did not exist during the period from its termination date to June 26, 1989, its power, thus disembodied, did not exist. That legal nonexistence was not, as the SEC would characterize it, merely a procedural irregularity. The SEC also argues that Act 9, acknowledged to be a reenactment, has the effect of relating the present existence of the SEC back to its inception; the SEC quotes 1 Pa.C.S. § 1961, the Statutory Construction Act, which states: Whenever a statute reenacts a former statute, the provisions common to both statutes shall date from their first adoption. Such provisions only of the former statute as are omitted from the reenactment shall be deemed abrogated, and only the new or changed provisions shall be deemed to be the law from the effective date of the reenactment. The SEC relies upon Earned Income Tax Ordinance of Wilkes-Barre, 208 Pa.Superior Ct. 424, 222 A.2d 499 (1966), holding that the reenactment of a tax enabling act operated to validate a local tax ordinance which the municipality had enacted after the original enabling act had been repealed. The Superior Court held that the major provisions of the original act, first enacted in 1947, should be construed as having continued in active operation until the time of reenactment in 1965. However, such statutory resurrection by reenactment is limited to situations not affected by a conclusive declaration such as that found in the Sunset Act here, where its subsection 6(c) stated that the agency “shall terminate all activities,” and subsection 6(f) reiterated that “the agency shall be terminated” (unless a reviving law intervenes, — 437 — which did not happen) and that terminated agencies “shall wind up their affairs.” These words permit no interpretation other than that they pronounce the death knell of the proceedings at Sunset time. They do not say that matters are suspended until revived; they declare termination. Therefore MP is entitled to a grant of the motion for summary judgment and an award of the relief comprehended within that motion. The relief requested, in Counts Two and Three of M.P.’s petition for review, must be granted to the following extent: 1. The investigation of M.P. is, or is deemed to be, dismissed. 2. The SEC shall not disclose or otherwise make public its preliminary order or its findings in the previous proceeding relative to the alleged violations of the State Ethics Act by M.P. ORDER NOW, January 3, 1992, M.P.’s motion for summary judgment incident to its petition for review in the nature of a declaratory judgment (No. 46 M.D.1989), is granted and the investigation of M.P. is dismissed. Furthermore, the SEC is prohibited from disclosing or otherwise making public its preliminary order or its findings in the previous proceeding relative to the alleged violations of M.P. Footnotes [1] Act of December 22, 1981, P.L. 508, as amended, 71 P.S. §§ 1795.1-1795.14. [2] Act of June 26, 1989 P.L. 26, No. 9. [3] Act of 1978, P.L. 883, No. 170, as amended, 65 P.S. §§ 401-413.