An Abuse of Power: How the Pennsylvania Courts Use Article V Section 10(C)

Jason Bologna, Esq. Copyright (c) 1998

Introduction

AN ABUSE OF POWER: HOW THE PENNSYLVANIA SUPREME COURT USES ARTICLE V, SECTION 10(C) OF THE PENNSYLVANIA CONSTITUTION TO DOMINATE PROCEDURAL LAWMAKING, AND WHY PENNSYLVANIA SHOULD AMEND THIS CONSTITUTIONAL PROVISION

James Madison once observed that “[t]he essence of government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” [FN1] To alleviate this potential abuse of power, Madison argued that government should be divided into federal and state systems, and that those systems should be separated into executive, legislative, and judicial branches. [FN2] With this arrangement, “a double security arises to protect the rights of the people. The different governments will control each other; at the same time each will be controlled by itself.” [FN3]

Our nation's history demonstrates that James Madison was correct, for federalism and the separation of powers have indeed provided a double security to protect the rights of the people. [FN4] In the course of providing this protection, federalism and the separation of powers have also evolved as legal principles. [FN5] This Comment examines the evolution of the separation of powers in the creation of Pennsylvania's procedural law. The evolution of government power in this area has failed to maintain a system of checks and balances, which is an essential component  of the proper separation of government powers. [FN6] Absent this system of checks and balances, Pennsylvania is now plagued by a procedural lawmaking system that allows its supreme court to blatantly abuse power. The Pennsylvania Supreme Court's abuse of power threatens the rights of all Pennsylvania citizens, and thereby highlights the importance of investigating how the separation of powers should work in Pennsylvania's procedural lawmaking system.

Traditionally, the separation of powers was structured so that the executive enforced the law, the legislature created the law, and the judiciary interpreted the law. [FN7] Now, however, the government branches often perform more than a single distinct function. [FN8] For instance, article V, section 10(c) of the Pennsylvania Constitution gives the state's supreme court and the legislature power to create procedural law. [FN9] The Pennsylvania Supreme Court creates procedural law by making procedural rules. [FN10] The court-made rules are the equivalent of legislation, as they control all cases within their reach. [FN11] By making these rules, the supreme court extends judicial power far beyond its traditional limitation of interpreting the law. Moreover, because article V, section 10(c) allows the supreme court to suspend laws that are “inconsistent” with court-made rules, [FN12] the judiciary has greater power than the legislature in creating procedural law. Finally, while the legislature maintains its traditional role of creating law, it now shares that power with a coordinate government branch, and it cannot prevent the suspension of legislation that is “inconsistent” with court-made rules.

The procedural rules and procedural legislation ultimately create Pennsylvania's procedural law. Procedural law defines the ways in which litigants can assert their substantive rights. [FN13] Because the assertion of substantive rights in the civil and criminal justice systems is fundamentally important to our democracy, the content of procedural law--and the question of who should make procedural law--also is fundamentally important to our democracy. [FN14]  By giving procedural lawmaking power to the supreme court and the legislature, article V, section 10(c) of the Pennsylvania Constitution enables both government branches to create procedural law. This separation of powers seemingly prevents the accumulation of too much power in one government branch and thereby prevents the potential abuse of procedural lawmaking power. [FN15] In reality, however, there is no meaningful separation of procedural lawmaking power in Pennsylvania because the supreme court now dominates the field to the near exclusion of the legislature. [FN16]

This domination is a clear abuse of government power that is wholly inconsistent with James Madison's vision of a proper separation of powers. Specifically, after dividing “the several classes of power, as they may be legislative, executive, or [judicial]; the next and most difficult task, is to provide some practical security for each against invasion of the other.” [FN17] Article V, section 10(c) provides no security for the legislature in relation to the supreme court, and it has thereby fostered a crisis in Pennsylvania government.

This Comment examines three aspects of that crisis. First, the lack of an internal check on the supreme court's rulemaking power allows the court to be unaccountable to other government branches when it makes procedural rules. [FN18] Second, because there is no internal check on the supreme court's rulemaking power, the court is rapidly becoming a separate, super-branch of government. [FN19] And third, because the supreme court uses its rulemaking power to suspend legislation and insert court-made rules, the justices of the supreme court now determine an inordinate amount of Pennsylvania's public policy. [FN20] These three aspects contradict basic principles of democratic government, [FN21] and ultimately  threaten the rights of all Pennsylvania citizens.

This Comment examines the three aspects noted above in the context of Pennsylvania Supreme Court decisions. A current and startling example of the supreme court's rulemaking power is found in its judicial order suspending the entire Capital Unitary Review Act (“CURA”). [FN22] CURA, which was passed by an overwhelming majority vote in both the House of Representatives and the Senate, [FN23] shortened the time in which death row appellants could file their appeals. [FN24] Although the supreme court did not have before it an active case challenging CURA's constitutionality, the court nevertheless used its rulemaking power to issue a sua sponte judicial order suspending CURA in its entirety. [FN25] The supreme court then reinstated the pre-existing death penalty appeals process in CURA's place. [FN26]

Members of the executive and legislative branches of Pennsylvania government publicly questioned the constitutional legitimacy of the judicial order suspending CURA. [FN27] Moreover, despite a petition by the Pennsylvania Attorney General to the supreme court, and three special sessions of the Pennsylvania House Judiciary Committee to discuss rulemaking in Pennsylvania, the supreme court's judicial order suspending CURA still stands. [FN28] Finally, and most importantly, nothing has changed the Pennsylvania Supreme Court's ability to use its rulemaking power to suspend other pieces of legislation.

A second startling example of the supreme court's rulemaking power is found in its response to the legislature's attempt to create a comprehensive evidence code in 1995. Jeffrey Piccola, a former member of the House of Representatives who worked extensively on the code, noted that as the project neared completion the supreme court became “interested . . . and appointed a committee to study it. [T]he threat was held over our head . . . [to] go ahead and pass [the code] but we're going to simply suspend [the code] because this impinges on the rule-making authority of the court.” [FN29] Accordingly, the supreme court has used its rulemaking power to effectively block legislation both before and after its enactment.

This Comment argues that a change in the Pennsylvania Supreme Court's rulemaking power is long overdue. The supreme court's use of article V, section 10(c) to suspend and preempt legislation has negated the legislature's power to create procedural law. Regardless of the merits of CURA or the evidence code, the legislature must have the ability to pass this sort of procedural legislation and, if necessary, to protect this procedural legislation. To achieve this goal, this Comment concludes that article V, section 10(c) should be amended to give the legislature veto power over the supreme court's rulemaking power.

I. Procedural Rulemaking In Pennsylvania

There are four steps to understanding Pennsylvania's procedural rulemaking system. First, it is useful to examine some basic rulemaking principles. Second, it is necessary to investigate the history of rulemaking in Pennsylvania. Third, it is essential to identify the constitutional limitations on rulemaking. Fourth and finally, it is important to review the case law that interprets the meaning of those constitutional limitations.

A. Basic Rulemaking Principles

Judges assume a different role when they make procedural rules than when they adjudicate cases. [FN30] This different role stems from the fact that “[i]n deciding cases, judges apply preestablished rules of law to a particular, preexisting fact situation [whereas] . . . in making procedural rules they survey a variety of different fact situations, determine policy, and prescribe rules of general proscriptive application.” [FN31] The procedural rulemaking process is therefore legislative, [FN32] and the rules function like pieces of legislation. [FN33] Although the rules are designed to cover procedural matters, they often have a direct impact on substantive rights. [FN34] Because of that impact, and because the process of making rules is legislative in nature, legislatures have consistently asserted a strong interest in controlling the creation of procedural law. [FN35]

Despite these legislative assertions, the judiciary's interest in creating procedural law is generally regarded as a stronger one. [FN36] In the public eye, the judiciary is seen as the government branch that is most responsible for an efficient court system. [FN37] The judiciary also has more expertise than the legislature in identifying and resolving procedural problems. [FN38] The themes of responsibility and expertise are therefore repeatedly found in the arguments supporting judicial control of procedural lawmaking. [FN39]

Historically, the question of who should control procedural lawmaking spans decades, [FN40] if not centuries. [FN41] The passage of the Federal Rules Enabling Act of 1934 (“the Act”) was a key moment in that history. [FN42] The Act enabled the creation of the Federal Rules of Civil Procedure, which were “important not only in their own right but [also] for their profound and immediate stimulating influence upon the procedural revision throughout the states.” [FN43] The procedural revision in the states examined whether the judiciary should make procedural rules, and whether the legislature should have any role in the process. [FN44] Among the states, New Jersey has produced two of the most noted cases addressing this procedural revision: Winberry v. Salisbury [FN45] and Busik v. Levine. [FN46] These cases are noteworthy, and ultimately controversial, because they present clear examples of the judiciary asserting significant procedural rulemaking power over the legislature.

Winberry involved a conflict between a court-made rule and a subsequently-enacted statute. [FN47] The court-made rule limited the time to appeal a final judgment of the New Jersey Superior Court to forty-five days whereas the subsequently-enacted

statute extended that time to one year. [FN48] The resolution of this conflict depended on the interpretation of the phrase “subject to law” in the rulemaking provision of the New Jersey Constitution, which read “[t]he Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.” [FN49]

If “subject to law” meant subject to legislation, then the court-made rule limiting appeals to forty-five days was subject to, and thus overruled by, the legislation allowing appeals for one year. [FN50] This interpretation of “subject to law” jeopardized all court-made rules, for the legislature could immediately suspend the rules with new legislation. [FN51] The legislature's proposed power to suspend would drastically reduce the New Jersey Supreme Court's ability to create enduring procedural rules. [FN52] Chief Justice Vanderbilt, who wrote the majority opinion in Winberry, resolved this problem by concluding that:

the phrase “subject to law' cannot be taken to mean subject to legislation. . . . The only interpretation of “subject to law' that will not defeat the objective of the people to establish an integrated judicial system and which will at the same time give rational significance to the phrase is to construe it as the equivalent of substantive law as distinguished from pleading and practice. . . . The phrase “subject to law' . . . thus serves as a continuous reminder that the rule-making power as to practice and procedure must not invade the field of substantive law as such. While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of rule-making power. [FN53] In reaching this conclusion, the New Jersey Supreme Court became the nation's first court to declare its “absolute independence of the legislature in the realm of procedure.” [FN54] The New Jersey Supreme Court's declaration of judicial independence in Winberry prompted immediate scholarly discussion and disagreement. [FN55] Nevertheless, in the twenty-three years between Winberry and Busik, the New Jersey Supreme Court never retreated from its claim that it exclusively controlled New Jersey's procedural law. [FN56] Busik v. Levine [FN57] presented the question of whether a court-made rule authorizing prejudgment interest in tort cases created substantive law. [FN58] If the rule created substantive law, it was therefore beyond the procedural rulemaking power of the New Jersey Supreme Court. [FN59] Writing for the Busik majority, Chief Justice Weintraub answered this question by observing:

[I]t is simplistic to assume that all law is divided neatly between “substance' and “procedure.' A rule of procedure may have an impact upon the substantive result and be no less a rule of procedure on that account. . . . [ [ [I]t surely cannot be said to have been palpably inappropriate to think of prejudgment interest as a matter of procedure in the context of law-making. . . . The sole question is whether the court may treat the subject [ [ [of prejudgment interest] by a rule rather than by a judicial decision despite the substantive aspects of the subject. The issue of exclusivity involves a touchy matter, the relations among the three branches of government. It will be time enough to talk about exclusivity when there is an impasse and no way around it. A coordinate branch should not invite a test of strength by its proclamation. Our form of government works best when all branches avoid staking out boundaries that separate their powers. [FN60]

While the Busik court claimed that it was not “staking out boundaries that separate” government powers, it did acknowledge that procedural rules are not entirely procedural. [FN61] The Busik court thereby identified a middle ground, namely, law that is both substantive and procedural. By identifying this middle ground and asserting its power to act within it, the Busik court effectively set a new boundary for its rulemaking power. Specifically, if it was “not palpably inappropriate” to conceive of an area as procedural, then it was a legitimate area for the court to use its rulemaking power. [FN62] Ultimately, then, the Busik court moved the boundary of rulemaking power into substantive areas. This move highlighted three aspects of the judicial domination of rulemaking that have drawn repeated criticism.

First, rulemaking permits supreme court justices to set public policy while allowing the justices to avoid public control. [FN63] Second, rulemaking validates the ability of the judiciary to determine the limits of its own power, for in areas of law that contain both procedural and substantive components, the court has the final word on whether an issue is appropriate for procedural rulemaking. [FN64] Third, when an appeal challenges a court-made rule, the appeal is often argued before the same justices who created the rule. [FN65] The court's dual function in making and later evaluating its own rule raises concerns regarding that court's impartiality. [FN66]

Notwithstanding the above criticisms, the procedural revision which followed  the enactment of the Federal Rules of Civil Procedure resulted in almost every state supreme court having some form of rulemaking power. [FN67] The following three sections detail the history, source of, and limitations on rulemaking for the Pennsylvania Supreme Court.

B. The History of Rulemaking in Pennsylvania

The modern history of rulemaking in Pennsylvania begins in 1937, when the Pennsylvania Legislature passed a law giving the Pennsylvania Supreme Court power to make rules of civil procedure. [FN68] The Pennsylvania Legislature extended that power in 1957, when it gave the Pennsylvania Supreme Court power to make rules of criminal procedure. [FN69] These laws remained in effect until 1968, when Pennsylvania held its constitutional convention. [FN70]  Prior to the convention, the convention delegates received a preparatory manual discussing the status of Pennsylvania law. [FN71] With respect to rulemaking, the manual warned that because the Pennsylvania Legislature had given rulemaking power to the Pennsylvania Supreme Court by statute, the Pennsylvania Legislature had the authority to take that power away. [FN72] The manual therefore suggested a constitutional grant of rulemaking power for the Pennsylvania Supreme Court. [FN73] The convention delegates ultimately incorporated this suggestion, [FN74] but even more importantly, the citizens of Pennsylvania approved this grant of rulemaking power for the supreme court when they voted to adopt the constitution. [FN75] Exemplifying this important distinction between delegates and citizens, Chief Justice Paxon noted long ago:

[W]e throw out of view the copious citations which have been furnished us from the debates in the convention. They are of value as showing the views of individual members, and as indicating the reasons for their votes; but they give us no light as to the views of the large majority who did not talk; much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental  law. [FN76]

While article V, section 10(c) gives the supreme court rulemaking power, much of the rulemaking process is carried on by the Judicial Administration, Appellate Procedure, Civil, and Criminal Rules committees, as well as a Judicial Council. [FN77] Each of these committees investigates whether rules need to be made, or amended, to improve the efficiency of Pennsylvania's judicial system. [FN78] If a committee proposes a new or amended rule, it must send that rule to the Pennsylvania Bulletin for publication as well as recording that rule in the state administrative office. [FN79] When the Pennsylvania Bulletin publishes the proposed rule, it notes that comments about the rule should be sent to the committee proposing it. [FN80] The committee must review these comments before it can send the proposed rule to the supreme court. [FN81] If the proposed rule is sent to and adopted by the supreme court, it is then filed in the office of the supreme court prothonotary, who must distribute the rule to a variety of different sources. [FN82]

There are some exceptions to the process noted above. [FN83] The exceptions are limited to situations where “exigent circumstances require the immediate adoption of the proposal,” when the “amendment is of a typographical or perfunctory nature,” or when “in the discretion of the Supreme Court such action is otherwise required in the interests of justice or efficient administration.” [FN84]  The committees noted above are staffed with experts in procedural law. [FN85] While the rules proposed by the committees impact “[public] policy issues that affect groups outside the bar,” the committee members are generally judicially-appointed bar members. [FN86] As a result, the citizens of Pennsylvania are faced with a strange dichotomy: they can elect legislators to make substantive law, but cannot elect committee members to make rules of procedure that give meaning to the substantive law. The significance of this dichotomy is magnified in an era where “courts are called upon to regulate a growing sphere of life, [making] the issues of access and accountability . . . more acute to the administration of the courts.” [FN87]

Pennsylvania citizens are nevertheless vital to the rulemaking process. Because the supreme court's rulemaking power comes from the constitution, it comes from the people. [FN88] By giving constitutional rulemaking power to the  supreme court, the people eliminated the legislature's ability to control the court's rulemaking power. Furthermore, by giving the supreme court power to suspend laws that are “inconsistent” with court-made rules, [FN89] the people gave the court the ability to control the legislature's procedural lawmaking. Accordingly, by shifting the source of rulemaking power from legislation to the constitution, the people dramatically, and perhaps unknowingly, shifted the balance of procedural lawmaking power from the legislature to the supreme court.

C. Constitutional Limitations on Rulemaking

Article V, section 10(c) establishes the supreme court's power to make procedural rules, while also defining five limits to that power. First, rules must cover “procedure,” but not substantive law; second, rules must be “consistent with” the constitution; third, rules cannot “abridge, enlarge, [or] modify” a litigant's substantive rights; fourth, rules cannot impact the legislature's right “to determine the jurisdiction of any court”; fifth and finally, rules cannot suspend or alter a “statute of limitation.” [FN90]

Of these five limitations, the first three are raised most frequently in the case law interpreting article V, section 10(c).

D. Case Law Interpreting the Constitutional Limits on Rulemaking

Article V, section 10(c) limits the supreme court to procedural rulemaking. This limitation makes the “ill-defined and at times indefinable” [FN91] distinction between substantive and procedural law fundamentally important to defining the limits of supreme court rulemaking power. The Pennsylvania Supreme Court's opinions in Commonwealth v. Wharton [FN92] and Commonwealth v. Sorrell [FN93] illustrate the court's difficulty in clearly drawing this distinction. Wharton presented the supreme court with a conflict between Rule 1101 of the Pennsylvania Rules of Criminal Procedure [FN94] and  title 42, section 5104(c) of the Pennsylvania Code. [FN95] Rule 1101, enacted by the supreme court, suspended a law giving defendants the right to waive a jury trial provided that it was with the consent of both the court and the prosecution. [FN96] In place of that law, Rule 1101 allowed defendants to waive a jury trial solely with just the consent of the court. [FN97] The legislature responded to Rule 1101 by enacting section 5104(c), which gave the prosecution the right to demand a jury trial. [FN98]

The issue in Wharton was whether section 5104(c) was a substantive or procedural law. [FN99] If section 5104(c) was substantive, then the court did not have power to suspend the law with its procedural rulemaking authority. [FN100] If section 5104(c) was procedural, however, the court could use its procedural rulemaking authority to suspend the law because it was “inconsistent” with Rule 1101. [FN101] The Wharton court ultimately split 3-3 on this issue, thereby affirming the lower court's judgment that section 5104(c) was procedural and “inconsistent” with Rule 1101, and should thus be suspended. [FN102]

Justice Roberts wrote for the Wharton justices supporting affirmance. [FN103] He noted that in criminal law, the substantive law defines which actions are crimes, as well as setting forth the punishment for those crimes. [FN104] In comparison, Justice Roberts emphasized that procedural law establishes the manner in which the substantive law is enforced. [FN105] Justice Roberts then argued that a jury trial is procedural, and cited myriad federal and state court decisions to support his argument. [FN106] Interestingly, however, Justice Roberts also devoted one section of his opinion to arguing the public policy merits that favored Rule 1101 in relation to section 5104(c). [FN107]

Justice Nix wrote one of Wharton's two opinions in support of reversal. [FN108] He disagreed with Justice Roberts's conclusion that the Commonwealth's right to a jury trial is procedural. [FN109] Rather, he argued that the legislature's enactment of section 5104(c) created a substantive right for the Commonwealth to a trial by jury. [FN110] Justice Nix concluded that Rule 1101 could not ignore this substantive right and therefore must fall because it abridged the Commonwealth's right to a jury trial. [FN111]

Justices Larsen and Kauffman authored Wharton's second opinion in support of reversal. [FN112] They argued that laws are presumptively constitutional and that the supreme court's duty--whenever possible--is to interpret laws in a manner consistent with the constitution. [FN113] Justices Larsen and Kauffman cited a number of state and federal cases to support their argument that the Commonwealth's right to a jury trial is substantive. [FN114] In accordance with their duty to interpret laws in a manner consistent with the constitution, the justices therefore concluded that Rule 1101 was a procedural method for defendants to waive their jury trials whereas section 5104(c) gave the Commonwealth a substantive right to a jury trial. [FN115]

Because the constitutionality of Rule 1101 and section 5104(c) had been raised but not decided in Wharton, the supreme court revisited the conflict in Commonwealth v. Sorrell. Here, in a 4-3 decision, the state's high court held that section 5104(c) intruded on the supreme court's rulemaking authority and was therefore unconstitutional. [FN116]  Justice Roberts wrote the majority opinion in Sorrell. [FN117] He reiterated his argument that the right to a jury trial is procedural, and he again cited a number of federal and state cases to support his position. [FN118] Conspicuously, Justice Roberts's Sorrell opinion lacked the public policy argument he made in Wharton about the merits of Rule 1101. [FN119] In addition, Justice Larsen, who had dissented on the exact same issue just one year earlier in Wharton, joined Justice Roberts's opinion in Sorrell. [FN120]

Justice Nix wrote one of Sorrell's two dissenting opinions. [FN121] Joined by Justice Hutchinson, Justice Nix again argued that the right to a jury trial is substantive. [FN122] Justice Nix's opinion in Sorrell was, nevertheless, somewhat different than his opinion in Wharton. [FN123] In Sorrell, Justice Nix conceded that a jury trial falls somewhere between substance and procedure. [FN124] However, because the legislature gave the Commonwealth the right to a jury trial with section 5104(c), Justice Nix concluded that the balance tipped “in favor of finding the right to be substantive.” [FN125] Thus, Rule 1101 could not abridge the Commonwealth's substantive right to a jury trial conferred by section 5104(c). [FN126]

Justice McDermott wrote Sorrell's second dissenting opinion, wherein he flatly rejected the majority's conclusion that the Commonwealth's right to a jury trial is procedural. [FN127] Justice McDermott also criticized as “totally unsupported” the majority's argument that Pennsylvania citizens gave the supreme court the power to decide who has a right to a jury trial when those citizens voted to adopt article V, section 10(c). [FN128]

In summary, then, Wharton and Sorrell demonstrate the challenge of separating substance from procedure. Justice Roberts wrote two opinions arguing the right was procedural, but his opinions varied in their content. [FN129] Justice Nix wrote two opinions arguing the right was substantive, but his opinions varied in their reasoning. [FN130] Justice Larsen actually changed his opinion; first arguing the right was substantive, and later concluding it was procedural. [FN131] Wharton and Sorrell also demonstrate that once a supreme court majority concludes that an area is procedural, and that a law is “inconsistent” with a court-made rule, the legislature has no authority to check this decision. [FN132]

In addition to permitting only procedural rulemaking, article V, section 10(c) also requires the supreme court to make rules “consistent with” the constitution. [FN133] The supreme court expressed its view of the constitutional requirements involved in the rulemaking process with its ruling in In re Pa. C. S. § 1703. [FN134] This “case” was actually an open letter the supreme court wrote to the Governor, President of the Senate, and Speaker of the House. [FN135] In the letter, the supreme court unanimously declared that it was not required to follow title 42, section 1703 of the Pennsylvania Code. [FN136] Section 1703 required the supreme court, while exercising its rulemaking powers, “to give public notice of its meetings . . . and to keep “open to the public at

all times' all of its “meetings or hearings . . . at which formal action is scheduled to be taken.”' [FN137] In announcing that it was not required to follow section 1703, the supreme court reasoned that Pennsylvania's Constitution gave the judiciary exclusive control over procedural rulemaking. [FN138] According to the court, when the legislature enacted section 1703, it attempted to usurp some control of rulemaking. [FN139] In the end, the court concluded that the “arguments justifying that attempt are inadequate in light of the [separation of powers] doctrines developed in this and other jurisdictions.” [FN140]

At a minimum, In re Pa. C. S. § 1703 illustrated the supreme court's view about three constitutional aspects of the procedural rulemaking process. First, there is no requirement that an adversarial proceeding resolve rulemaking disputes. While the supreme court's discussion did consider arguments that could have been lodged in favor of section 1703, [FN141] it would exalt form over substance to conclude that this letter actually reflected an adversarial proceeding. The supreme court merely raised arguments, ex parte, and quickly refuted them. [FN142]

The second rulemaking aspect illustrated by In re Pa. C. S. § 1703 is that rulemaking disputes cannot be resolved by advisory opinions. The supreme court explicitly noted “this direct letter of address in no way suggests any departure from firm precedent against rendering of advisory opinions.” [FN143] There is, however, an obvious tension between this statement and the traditional definition of an advisory opinion. [FN144]

The third and final aspect is that rulemaking power is vested exclusively in the judiciary and the legislature cannot pass laws that usurp that power. [FN145] Curiously, the first assertion of exclusive power did not come from a state court decision, but rather from the Third Circuit Court of Appeals in Garrett v. Bamford. [FN146] Garrett's treatment of the subject is as follows: “[T]he Pennsylvania Constitution gives the state's supreme court exclusive power to establish rules of procedure for state courts; although the legislature makes substantive law, it is without power to control procedure.” [FN147] In adopting Garrett's interpretation, the supreme court apparently  decided the last sentence of article V, section 10(c)--that “[a]ll laws shall be suspended to the extent they are inconsistent with rules prescribed under these provisions”--means that legislation which is consistent with court rules, or legislation that exists in the absence of court rules, also is impermissible.

While article V, section 10(c) requires the supreme court to make rules “consistent with” the constitution, it also forbids the supreme court from abridging, enlarging, or modifying a litigant's substantive rights with court-made rules. [FN148] The supreme court has acknowledged one instance where a court-made rule enlarged the rights of one litigant at the expense of another. This error involved the treatment of Rule 238 of the Pennsylvania Rules of Civil Procedure [FN149] in Laudenberger v. Port Authority of Allegheny County [FN150] and Craig v. Magee Mem'l Rehabilitation Ctr. [FN151]

Rule 238 awarded delay damages to a plaintiff when a defendant made no settlement offer before trial, or when the jury's verdict exceeded the defendant's offer by more than 125 percent. [FN152] In Laudenberger, Rule 238 was challenged on the grounds that it exceeded the supreme court's procedural rulemaking authority. [FN153] Writing for a six person majority in Laudenberger, Justice O'Brien conceded that Rule 238 had both substantive and procedural elements. [FN154] He argued, however, that most procedural rules necessarily affect substantive rights, [FN155] and that prohibiting rulemaking when the rules”“merely affect substantive rights or liabilities, however slight such effect may be, would seriously cripple”' the court's rulemaking authority. [FN156] The supreme court therefore concluded that Rule 238 was a proper area for rulemaking. [FN157]

Justice Roberts wrote Laudenberger's sole dissenting opinion. [FN158] He concluded that in enacting Rule 238, the supreme court exceeded its constitutional rulemaking power. [FN159] This conclusion was premised on Justice Roberts's belief that Rule 238 enlarged the plaintiff's rights while abridging the defendant's rights. [FN160] Specifically, the defendant was responsible for making a settlement offer that came within twenty-six percent of the jury verdict. [FN161] If the defendant failed in this regard, he or she faced a ten percent penalty that was awarded to the plaintiff. [FN162] Justice Roberts ultimately noted that the Laudenberger majority's treatment of Rule 238 “serve[d] well to demonstrate that it is often more difficult to confess error than to fall into error in the first place.” [FN163]

In Craig v. Magee Mem'l Rehabilitation Ctr., the supreme court confessed that it had made an error in its interpretation of Rule 238 in Laudenberger. [FN164] Faced with an intriguing set of facts, [FN165] the Craig court suspended Rule 238 on due process grounds because it had become “an uncontestable presumption that all fault [in pretrial negotiations] lies with a defendant.” [FN166] Justice Hutchinson concurred with the Craig majority, [FN167] but declared that Rule 238 illustrated the need to pay closer attention to the separation of powers in rulemaking. [FN168] Justice Hutchinson also noted that the supreme court “above all, ought not to deal cavalierly with the constitutional authority of a coordinate branch to prospectively determine and generally define substantive rights.” [FN169]

In light of the supreme court's decisions since Craig, however, it seems that many Pennsylvania Supreme Court justices do not share Justice Hutchinson's view about the proper approach to the separation of government powers with article V, section 10(c).

II. The Supreme Court's Abuse of Rulemaking Power

The supreme court has used article V, section 10(c) to dominate the creation of Pennsylvania procedural law. This domination flows primarily from  the failure of article V, section 10(c) to place an internal check on the supreme court's procedural rulemaking power. Absent an internal check, the supreme court has expanded its power to become a separate, super-branch of Pennsylvania government that now determines an inordinate amount of Pennsylvania's public policy. The following three sections analyze the myriad problems caused by these developments.

A. The Lack of an Internal Check on Supreme Court's Rulemaking Power

The lack of an internal check to balance the supreme court's procedural rulemaking power presents four problems for Pennsylvania government. The first problem presented is that article V, section 10(c) has separated procedural lawmaking power into two government branches without imposing a system of checks and balances. This section has therefore created an inherently flawed procedural lawmaking system. As James Madison noted, the separation of powers must be accompanied by a system of checks and balances, for “ambition must be made to counteract ambition.” [FN170] Presently, however, the legislature cannot counteract the supreme court's ambition to control Pennsylvania's procedural law.

Commonwealth v. Wharton [FN171] and Commonwealth v. Sorrell [FN172] highlight the legislature's inability in this regard. [FN173] In 1973, the supreme court created Pennsylvania Rule of Criminal Procedure 1101, which overturned legislation requiring the consent of the judge and the prosecutor before a defendant may waive his right to a jury trial. [FN174] The legislature responded by explicitly giving the prosecution the right to a jury trial with the enactment of title 42, section 5104(c) of the Pennsylvania Code; nonetheless, the legislature failed to counteract Rule 1101 because section 5104(c) was suspended by the supreme court in accordance with article V, section 10(c). [FN175] The legislature's inability to check the supreme court, and the supreme court's ability to check the legislature by suspending “inconsistent” laws, clearly demonstrates a fundamental imbalance of power in Pennsylvania's procedural lawmaking system.

This fundamental imbalance creates a second problem; namely, that the legislative and executive branches cannot respond to the will of the people in the field of procedural law. The enactment and suspension of CURA illustrates this point. [FN176] During the 1994 gubernatorial campaign, Republican candidate Tom  Ridge promised an “orderly process to implement the death penalty” if elected. [FN177] When Governor Ridge entered office, he immediately called a special legislative session on crime. [FN178] Fulfilling his campaign promise, the first subject Governor Ridge listed for consideration at the special legislative session was “a[n] orderly process to implement the death penalty.” [FN179] CURA became that orderly process, passing by a 180-12 vote in the House of Representatives and a 42-5 vote in the Senate. [FN180] Despite this overwhelming support, the supreme court simply cited its rulemaking power under article V, section 10(c), and suspended CURA in its entirety. [FN181] This suspension demonstrates that while the legislative and executive branches can respond to the will of the people by enacting procedural laws on their behalf, neither branch can protect those laws, or the will of the people, from the supreme court.

The inability of the executive and legislative branches to check the supreme court's rulemaking power raises a third problem, which is linked to the notion of judicial review. Today, it is “firmly established and universally accepted” that judicial power necessarily includes the power to review the constitutionality of legislation. [FN182] Although court-made rules are similar to legislation, they are not subject to review by a coordinate government branch. [FN183] The absence of review presents a significant problem, for “if the legislature goes beyond its powers, the courts are available to enforce the constitutional restraints. But if [the] Supreme Court exceeds its powers, who shall impose the check? Therein lies the danger when the court undertakes, not to construe law, but to make it.” [FN184]

In examining this point, one commentator recently noted that because article V, section 10(c) isolates supreme court rulemaking from legislative review, the judiciary is now an unaccountable government branch. [FN185] The commentator logically concluded that an “unaccountable judiciary is . . . not a good thing.” [FN186] The lack of accountability must reduce the degree of restraint the supreme court exercises in using rulemaking power. [FN187] And, with less restraint, the supreme court can use rulemaking power in ways that broadly affect Pennsylvania's public  policy [FN188] and even in ways that violate Pennsylvania's Constitution. [FN189]

A fourth problem stemming from the lack of an internal check on the supreme court is found in the requirement that the court make procedural, but not substantive law. Wharton and Sorrell illustrate the immense difficulties of dividing substance from procedure. [FN190] A strong argument can be made that the supreme court may inadvertently make substantive law when the line between substance and procedure is not entirely clear. [FN191] In these situations, the supreme court should defer to the legislature because only the legislature has the authority to make substantive law. [FN192] The Pennsylvania Supreme Court apparently rejects this restrained approach to rulemaking, for “in the area of institutional relations among the branches of Pennsylvania's government . . . where their powers are greatest, the justices consistently overstep reasonable boundaries of their powers.” [FN193]

In addition to the difficulty of drawing a clear distinction between substance and procedure, the situation is further compounded by the fact that procedural legislation is often closely tied to a larger, substantive area of the law. [FN194] When the supreme court suspends the procedural piece of legislation, it thereby prevents needed changes in the larger, substantive area of the law.

For instance, in 1996 the legislature added section 813-A to the Health Care Services Malpractice Act. [FN195] Section 813-A was designed to deter frivolous lawsuits by requiring the plaintiff's attorney to have a reasonable basis in law and fact before filing a lawsuit. [FN196] Absent such a basis, “the court, upon motion or upon its own initiative, shall impose upon the person who signed the document or a represented party, or both, an appropriate sanction, which may include a civil penalty not to exceed $5,000.” [FN197] The supreme court suspended section 813-A with a judicial order that replaced the “shall impose” language with a discretionary “may impose” standard. [FN198] By changing this language, the supreme court reduced the potential of section 813-A to deter frivolous lawsuits. The supreme court's revision of this and other sections of the Health Care Services Malpractice Act prompted Lee McCormick, the President of the Pennsylvania Medical Society, to comment:

We worked with the Trial Bar this time to come up with tort reform which would eliminate frivolous cases, reduce transaction costs and speed the system. The proposals were agreed upon by everyone . . . [and] the amended bill passed unanimously in both the House and Senate and was quickly signed by the governor. Then . . . [the] supreme court suspended certain provisions . . . instead of imposing a mandatory award of attorneys' fees in frivolous cases, the supreme court left that decision to the [lower] court's discretion. This change diluted the effectiveness of this provision. . . . The legislature made the changes that were agreed upon by all the parties, and some of those changes were suspended and turned back to the court's own authority. Honestly, it's frustrating. . . . [FN199] The supreme court's ability to frustrate legislative intent flows from the court's manipulation of the separation of powers doctrine. Traditionally, the doctrine allowed legislation “to affect the judiciary, as long as these acts did not interfere with the administration of justice.” [FN200] Now, however, the doctrine is “used to strike down laws that affect the judicial branch in any way.” [FN201] This use contradicts supreme court precedent. In Laudenberger, the supreme court reasoned that it had power to make procedural rules which had collateral effects on substantive matters. [FN202] If this reasoning is true, then the opposite should also be true; namely, the legislature should have power to make substantive law which has a collateral effect on procedural matters. [FN203] Pennsylvania Attorney General Mike Fisher addressed the supreme court's failure to accept this argument when he noted:

That a substantive enactment by the General Assembly, when exercising its legislative power, has a collateral effect on procedural questions necessary to its implementation cannot prevent the General Assembly from exercising its constitutional power to make, alter and repeal laws. . . . Presently, however, the Supreme Court always gets the last word. Once the Court concludes that a matter is proper for rulemaking, even if it agrees that a rule has a collateral effect on a substantive right--and virtually all of them do--the Court has the ability . . . to upset the policy established by the legislative branch of our government. [FN204]

The supreme court's ability to upset legislative policy ultimately prevents the legislature from protecting the rights of the people. As Justice Holmes once noted, “legislators are ultimate guardians of the liberties and welfare of the people in quite  as great a degree as the courts.” [FN205] In Pennsylvania, though, the absence of an internal check on the supreme court ultimately prevents the legislature from protecting the liberty and welfare of the people in the Commonwealth's procedural lawmaking system.

B. The Disintegration of Co-Equal Government Branches

The supreme court has used article V, section 10(c) to enlarge its power at the expense of the legislative and executive branches. This use has disintegrated the co-equality of the government branches. The disintegration of equality is demonstrated by the breakdown of two critical democratic processes: the process of creating law, and the process of resolving disputes through adversarial proceedings.

In the process of creating law, “the people in a democracy have not only the right to be heard, but [also] the right to be wrong.” [FN206] The people of Pennsylvania therefore had the right to vote for a gubernatorial candidate who promised that he would restructure the death penalty appeals process. Regardless of whether CURA was the correct approach, the people had the right to support this approach. By suspending CURA, the supreme court usurped what the people wanted and ultimately achieved through the legislative process. [FN207] The crippling of the legislative process in this manner “cuts to the heart of our nation's democratic principles.” [FN208] If the legislative and executive branches cannot account for the will of the people by enacting laws on their behalf, then our government will no longer be a representative democracy.

The supreme court's willingness to suspend procedural laws like CURA stands in sharp contrast to its deferential attitude toward non-procedural laws. For instance, in Parker v. Children's Hosp. of Phila., [FN209] the supreme court stated that “a legislative enactment enjoys a presumption in favor of its constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. All doubts are to be resolved in favor of a finding of constitutionality.” [FN210] This statement from the court in Parker is manifestly different than the supreme court's approach in In re Pa. C. S. § 1703, where the court went out of its way to declare section 1703 unconstitutional. [FN211]

Curiously, the supreme court relied heavily on the Court of Appeals for the Third Circuit's interpretation of article V, section 10(c) in deciding In re Pa. C. S. § 1703. [FN212] In Garrett v. Bamford, [FN213] the Third Circuit concluded that Pennsylvania's legislature did not have power to control procedure. [FN214] Even a cursory reading of article V, section 10(c) suggests, however, that the Garrett court reached the wrong conclusion. The last sentence of article V, section 10(c) implicitly retains procedural lawmaking power for the legislature because if a law is consistent with a court-made rule, or if a law exists in the absence of a court-made rule, then the supreme court has no authority to suspend it. [FN215] Not surprisingly, therefore, justices of Pennsylvania's Supreme [FN216] and Superior Courts, [FN217] and a number of commentators, [FN218] have questioned the supreme court's assertion that the Pennsylvania Legislature has no authority to control procedural law.

Commentators have also questioned the secretive approach to rulemaking used by the state supreme court. [FN219] Specifically, “[w]hen courts assume a legislative role, they should also assume the restraints that accompany that role. Public deliberations are a basic safeguard to insure a legislative process that is fair and informed.” [FN220] The decision in In re Pa. C. S. § 1703 eliminated this basic safeguard by closing the supreme court rulemaking process to the public. [FN221] This retreat from the public eye followed criticism, leveled earlier that same year, that the supreme court was too secretive in its proceedings. [FN222] At a minimum, then, the supreme court's procedural rulemaking process uses a different, more secretive standard than the legislature's process of debating and enacting laws.

The process of resolving disputes through adversarial proceedings is also thwarted by the disintegration of co-equal government powers. For example, In re Pa. C. S. § 1703 was the antithesis of an adversarial proceeding. Rather than hear litigants' arguments, the justices simply wrote a letter to Pennsylvania's executive and legislative leaders declaring section 1703 unconstitutional. [FN223] Although the supreme court stated that the letter was not a departure from Pennsylvania's prohibition against advisory opinions, it is patently obvious that In re Pa. C. S. § 1703 was an advisory opinion. [FN224] Because advisory opinions go beyond the proper scope of judicial power, [FN225] it seems that in issuing an advisory opinion in In re Pa. C. S. § 1703, the supreme court violated article V, section 10(c)'s command that the court act in a manner “consistent” with the constitution. [FN226]

In addition to the potential constitutional violation noted above, when the supreme court notified the legislature that the proposed evidence code was unconstitutional, it also potentially violated the constitutional command that it shall not “abridge” the rights of a litigant. [FN227] Specifically, the Attorney General's right to argue before a fair and impartial supreme court concerning the constitutionality of the proposed code is abridged when the supreme court offers its opinion before a brief has been filed, or a word has been spoken, on the code's behalf. [FN228]

In summary, the supreme court's accumulation of power has eroded the co-equality of the government branches. One commentator has noted that Pennsylvania's Supreme Court now appears “to have greater power than any other state supreme court in the country.” [FN229] Without co-equal powers among the branches of Pennsylvania government, the processes of creating law and resolving disputes through adversarial proceedings are threatened.

C. The Supreme Court's Role in Setting Pennsylvania's Public Policy

Each of the cases analyzed thus far, Commonwealth v. Wharton, Commonwealth v. Sorrell, In re Pa. C. S. § 1703, Laudenberger v. Port Authority of Allegheny County, Craig v. Magee Mem'l Rehabilitation Ctr., and the suspension of CURA, have affected Pennsylvania's public policy. An argument can be made that these cases are the exception because court-made rules “rarely involve matters that excite public controversy.” [FN230] This argument is opposed, however, by two important points.

First, the supreme court has allowed the public policy merits of a court-made rule to explicitly affect at least one of its decisions. In Commonwealth v. Wharton, Justice Roberts used one section of his opinion to argue the public policy merits of Rule 1101 of the Pennsylvania Rules of Criminal Procedure. [FN231] This section was irrelevant to deciding the legal issue in Wharton, but it nonetheless suggested that “this policy determination, as well as the constitutional ideology of Rule-making, underlay [the court's] decision.” [FN232] If the public policy merits of court-made rules are even an unspoken factor in additional supreme court opinions, then the rules should indeed excite public controversy because they diminish the integrity of the court's decision-making.

The second point involves the scope of court-made rules; namely, that they affect all Pennsylvania citizens involved with litigation. [FN233] Suzanne Eng provides a striking example of this effect.

On July 12, 1993, Suzanne Eng's sixteen year-old daughter, Trista, was kidnapped by Hubert Michael (“Michael”) as she walked to her summer job at Hardee's restaurant. [FN234] Michael drove Trista to the York County State Game Lands, where he shot her three times and killed her. [FN235] After his arrest, Michael pled guilty to first degree murder and kidnapping charges. [FN236] Michael then stipulated to two aggravating circumstances at his sentencing hearing, which prompted the court to impose the death penalty on March 20, 1995. [FN237] The supreme court's decision to suspend CURA prolonged the death penalty appeals process for individuals like Michael, and thereby prompted Suzanne Eng to appear before the House Judiciary Committee to express her disapproval of the court's action:

The death of a child by murder is not something you “get over.' The affect [sic] on your life does change as time goes by, as the years pass. You learn to bear the absence of your child because that is what you have to do--either that, or lose sight of the needs of your remaining children . . . .[Hubert Michael] has been in control every step of the way, with little respect for his victim, my family and [sic] Pennsylvania[”s] judicial system . . . ..[Defendants sentenced to death] are entitled to their day in court, to trial by a jury of their peers, and yes, an appeal, but no more. I was glad for the legislative action limiting the number of appeals and appreciate the time and effort it took to enact such a law as the Capital Unitary Review Act. I am fearful and resentful of a judiciary branch of our state government that seems to be assuming the power to take carefully thought out laws--legislation enacted by and for the people of this Commonwealth, in the body of our elected Legislature--and throw them out without just cause. [FN238]

Article V, section 10(c) neither states, nor implies, that the supreme court should determine public policy with its rulemaking power. [FN239] The fact that supreme court justices are forbidden from expressing their public policy views when running for a seat on the state's highest court, or when sitting on the state's highest court [FN240] strongly suggests that the justices should not be the ones setting public policy. Moreover, the fact that supreme court justices are shielded from public control, in the sense that their terms of office last for ten years, [FN241] also strongly suggests that the justices should defer to the legislature in matters of public policy. Finally, when justices exercise procedural rulemaking authority and thereby set public policy, there is nothing the legislature or the people can do to change that policy. [FN242]

D. Amending Article V, Section 10(c) of The Pennsylvania Constitution

If the problems described in the three sections above are accepted as accurate, then this question necessarily follows: what should Pennsylvania do to address the supreme court's unchecked power in making procedural rules? This Comment suggests that Pennsylvania citizens should amend article V, section 10(c) to give the legislature a veto power over the supreme court's procedural rulemaking power. The veto power would place an internal check on the supreme court, thereby  restoring the co-equality of the government branches, as well as allowing the legislature to once again establish Pennsylvania's public policy. There is widespread support for instituting a legislative veto over the judiciary's rulemaking in Pennsylvania specifically, [FN243] and in rulemaking generally. [FN244]

The power of Pennsylvania citizens to amend article V, section 10(c) is found in two sources. First, article I, section 2 proclaims that “[a]ll power is inherent in the people, and . . . they have at all times the inalienable and indefensible right to alter, reform or abolish their government in such a manner as they think proper.” [FN245] As such, the people are the final arbiters in the ongoing dispute between the legislature and the supreme court over who should control procedural lawmaking. [FN246]

The second source of power is found in article XI, section 1, which establishes the means for enacting a constitutional amendment. [FN247] In determining the content of an amendment giving the legislature a veto over the supreme court's rulemaking, two sources provide some insight: the state model and the federal model. With regard to the state model, there is a wide range of control over the judiciary's rulemaking by the various state legislators. [FN248] For instance, Idaho, [FN249] New Jersey, [FN250] and New Mexico, [FN251] provide their respective legislatures with no veto power over their supreme courts. Conversely, Maryland [FN252] and Ohio [FN253] both provide their legislatures with a majority veto power over their supreme courts. Finally, Alaska [FN254] and Florida [FN255] provide their legislatures with a supermajority veto power over their supreme courts.

These state veto powers could work in Pennsylvania in the following manner. When the supreme court suspended CURA with its rulemaking authority, the legislature would have had an opportunity to veto the supreme court with a majority vote (i.e., over one-half) in both Houses, or a supermajority vote (i.e., over two-thirds) in both Houses. Given the overwhelming legislative support for CURA, [FN256] it seems likely that the legislature could have vetoed the supreme court's decision to suspend CURA.

Turning to the federal model, the veto power operates somewhat differently. The United States Supreme Court does not have a constitutional grant of rulemaking power. [FN257] Rather, it is given rulemaking power by statutes. [FN258] When the United States Supreme Court adopts a rule, it sends the rule to Congress, which has the authority to accept or reject the rule. [FN259] The federal rulemaking system is therefore described as “judicial rulemaking pursuant to a legislative delegation and subject to a congressional veto.” [FN260] The ability of Congress to veto the procedural rules adds legitimacy to the rules that are adopted. [FN261] The federal veto power could work in Pennsylvania in the following manner. If the supreme court did not have a constitutional grant of rulemaking power, but rather had a statutory grant of rulemaking power, it would have to send proposed rules to the legislature for approval. As such, when the supreme court proposed Rule 1101 of the Pennsylvania Rules of Criminal Procedure, the legislature would have had an opportunity to accept or reject the rule. Because the legislature did not approve of Rule 1101, [FN262] it could have rejected the rule. Conversely, if the legislature accepted Rule 1101, the rule would have enjoyed legislative and judicial support. With the support of two government branches, Rule 1101 would have been a more legitimate expression of Pennsylvania's public policy.

The application of the federal rulemaking model to Pennsylvania is, ultimately, strained. Unlike the federal model, Pennsylvania has a constitutional grant of rulemaking power for its supreme court. As such, the federal model could only be applied if Pennsylvania citizens voted to repeal article V, section 10(c) in its entirety. [FN263] Moreover, unlike United States Supreme Court justices, Pennsylvania Supreme Court justices are elected. [FN264] These state justices can therefore claim a “high[er] form of [democratic] legitimacy” because, through the election process, they are directly accountable to Pennsylvania's citizens. [FN265] Accordingly, the constitutional source of rulemaking power and the election of supreme court justices suggests that Pennsylvania is ill-suited for the federal rulemaking model.

The democratic legitimacy of Pennsylvania Supreme Court justices warrants further discussion, however. As an initial matter, supreme court justices face election less frequently than members of the House of Representatives, [FN266] the Senate, [FN267] or the Governor. [FN268] Additionally, when campaigning to be a supreme court justice, candidates are forbidden from sharing their policy views with the electorate. [FN269] This prohibition stands in sharp contrast to the election campaigns for legislative and executive offices. Furthermore, former Pennsylvania Supreme Court Justice Kauffman has noted the “evidence overwhelmingly suggests that judges are elected in a climate of nearly total voter ignorance.” [FN270] Because supreme court justices are not in front of the camera advocating new procedural rules, or answering their telephones justifying their procedural rulemaking votes, whatever ignorance that exists during the election most likely continues during the justice's term on the bench. Finally, in the aftermath of In re Pa. C. S. § 1703, supreme court justices have isolated themselves from the public in making procedural rules. [FN271]

Based on the factors detailed above, it is readily apparent that executive and legislative members have a greater degree of democratic accountability than do supreme court justices. Procedural rulemaking that affects public policy therefore warrants a legislative veto power because the legislators are more accountable to the people than are supreme court justices. One member of the supreme court has explicitly recognized this point, noting that the “[l] egislature, with unique fact-finding capacities designed not only to correct but also to anticipate social problems, both broadly declares public policies and minutely provides for details of their implementation.” [FN272]

Notwithstanding the above reasoning, supreme court justices do have some accountability to the people. Specifically, they are elected by the people to ten-year terms. The supreme court justices also possess an unrivaled expertise in the field of procedural law. [FN273] As such, the legislative veto power should be a limited one. If it is unwise to keep the “legislature from areas which are legitimate subjects of its concern, it would be unfortunate in equal, if not greater measure, to stultify the grant of rule-making authority by keeping the court from utilizing it in areas in which it could be of service.” [FN274] The ultimate goal, therefore, is to strike a balance that maintains the supreme court's control over the creation of procedural rules while also allowing the legislature to override that control when it decides the peoples' will must govern. [FN275]

Recent proposals to amend Pennsylvania's rulemaking system have failed to adequately strike this balance. For instance, Senate Bill 779, introduced in 1997, removed the supreme court's ability to suspend “inconsistent” legislation, and declared that “[n]o laws shall be suspended unless found to be in violation of this Constitution.” [FN276] The bill also enabled the legislature to “reject any rules prescribed by the Supreme Court within 90 days of their publication in the Pennsylvania Bulletin.” [FN277] Senate Bill 779 thereby gave the legislature two powerful checks on the supreme court.

First, the legislature would have the authority to reject court-made rules. This approach mirrors Congress' power under the federal rulemaking system. [FN278] Nonetheless, this approach fails to account for the important differences in democratic accountability between justices of the United States Supreme Court, and justices of the Pennsylvania Supreme Court. In addition, this approach leaves the supreme court at the mercy of the legislature when making procedural rules. Because the problems with Pennsylvania's procedural lawmaking system are now caused by the legislature acting at the supreme court's mercy, it is counter-intuitive to try and resolve these problems by placing the supreme court at the legislature's mercy.

The second powerful check that Senate Bill 779 places on the supreme court is that court-made rules cannot suspend “inconsistent” legislation. [FN279] This approach presents an important problem, however, for the supreme court and its various rules committees. Neither the supreme court nor its committees could immediately respond to problems in the judicial system that are caused by ineffective procedural legislation. This inability prolongs inefficiencies in Pennsylvania's judicial system because the problems could not be resolved unless and until the legislature voted to change the ineffective procedural legislation.

A better approach than Senate Bill 779 would be as follows: maintain the current procedural rulemaking system, but add a provision to article V, section 10(c) that allows the legislature, with a two-thirds vote in both Houses, to override the supreme court when it suspends “inconsistent” procedural laws. This approach provides a meaningful check on the supreme court, but it limits the check to situations where the legislature strongly supports a particular piece of legislation. In these situations, the legislature must have the power to establish Pennsylvania's  public policy. Moreover, the advantage of a two-thirds majority vote, as opposed to a simple majority vote, is that it prevents the legislature from easily overriding the supreme court in procedural matters. Consequently, the “place of the legislature in the field of judicial administration and procedure . . . [[[is] that of a reserved ultimate reviewing power, not that of a frequently-intervening supervisory force.” [FN280]

Conclusion

Article V, section 10(c) of the Pennsylvania Constitution places no internal check on the Pennsylvania Supreme Court's procedural rulemaking power, and it thereby allows the court to dominate the creation of procedural law. This domination of procedural law has made the supreme court a separate, super-branch of the Pennsylvania government. This domination of procedural law has also allowed the supreme court to supplant the executive and legislative branches in setting Pennsylvania's public policy. At a minimum, these developments are antithetical to basic principles of democratic government.

Because “power is of an encroaching nature . . . it ought to be effectually restrained from passing the limits assigned to it.” [FN281] In Pennsylvania, the legislature has no effective means of restraining the supreme court's procedural rulemaking power. To protect the legislature, and ultimately to protect themselves, the citizens of Pennsylvania should amend article V, section 10(c) to give the legislature a veto power over the supreme court's procedural rulemaking power.

[FN1]. James Madison, Speech in the Virginia Constitutional Convention (Dec. 2, 1829), quoted in Respectfully Quoted 271 (Suzy Platt ed., 1992).

[FN2]. The Federalist Nos. 48, 51 (James Madison).

[FN3]. The Federalist No. 51, at 357 (James Madison) (Benjamin Fletcher Wright ed., 1961).

[FN4]. The federal government has protected individual rights through the selective incorporation of the Bill of Rights to the states. See Gerald Gunther, Constitutional Law 413-31 (12th ed. 1991) (discussing selective incorporation). The separation of powers has protected individual rights by allowing the judiciary to review the actions of coordinate government branches to determine their constitutionality. See, e.g., Marbury v. Madison, 5 U.S. 137 (1803) (discussing separation of powers).

[FN5]. The Warren, Burger, and Rehnquist Courts have modified the accessibility of a federal forum to protect individual rights by changing federal courts' jurisdictional requirements. See Erwin Chemerinsky, Federal Jurisdiction § 1.5, at 34-36 (1994) (discussing changes in jurisdiction of federal courts). Separation of powers principles have been modified in allowing the judiciary to explicitly create procedural law in making procedural rules. See infra notes 7-12 and accompanying text for a brief discussion of the evolution of the separation of powers.

[FN6]. See Kenneth S. Gallant, Judicial Rule-Making Absent Legislative Review: The Limits of Separation of Powers, 38 Okla. L. Rev. 447, 481 (1985) (noting separation of powers useful institutional arrangement only with system of checks and balances).

[FN7]. See Robert Woodside, Pennsylvania Constitutional Law 6 (1985) (noting traditional division of powers within government).

[FN8]. See, e.g., Winberry v. Salisbury, 74 A.2d 406, 412 (N.J. 1950) (noting legislative and executive branches assume many judicial functions).

[FN9]. The power to make procedural rules is given explicitly to the Pennsylvania Supreme Court, and the power to create procedural law is given implicitly to the Pennsylvania General Assembly (“the legislature”), by article V, section 10(c) of the Pennsylvania Constitution, which reads:

The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.

Pa. Const. art. V, § 10(c).

[FN10]. Jack B. Weinstein, Reform of Court Rule-making Procedures 3-4 (1977).

[FN11]. Id.

[FN12]. See supra note 9 for text of article V, section 10(c).

[FN13]. Charles W. Grau, Who Rules the Courts? The Issue of Access to the Rulemaking Process, 62 Judicature 428, 428 (1979).

[FN14]. See Richard S. Kay, The Rulemaking Authority and Separation of Powers in Connecticut, 8 Conn. L. Rev. 1, 1 (1975) (noting questions of procedure will determine matters of “grave importance”).

[FN15]. See id. at 40 (recognizing James Madison's view that separation of powers designed to prevent tyranny resulting from too much power being accumulated in “one set of hands”).

[FN16]. See infra notes 170-242 and accompanying text for a discussion of how the Pennsylvania Supreme Court dominates procedural lawmaking.

[FN17]. The Federalist No. 48, at 343 (James Madison) (Benjamin Fletcher Wright ed., 1961).

[FN18]. See infra notes 170-205 and accompanying text for a discussion of the lack of an internal check on the Pennsylvania Supreme Court.

[FN19]. See infra notes 206-29 and accompanying text for a discussion of the growing power of the Pennsylvania Supreme Court in relation to the executive and judicial branches.

[FN20]. See infra notes 230-42 and accompanying text for a discussion of the Pennsylvania Supreme Court's role in setting public policy.

[FN21]. The lack of an internal check to balance government powers contradicts the system of checks and balances that James Madison advocated. The Federalist No. 48 (James Madison). The Pennsylvania Supreme Court's accumulation of power erases the co-equality of the government branches, which contradicts James Madison's vision about the proper balance of government power. Id. Finally, the Pennsylvania Supreme Court's suspension of legislation and institution of court-made rules ignores the traditional role of the legislature in setting the state's public policy. Weinstein, supra note 10, at 6-7.

[FN22]. Suspension of the Capital Unitary Review Act and Related Sections of Act No. 1995-32 (SS1); and Amendment of Chapter 1500 of the Rules of Criminal Procedure, 548 Pa. CCXXXV (1997).

[FN23]. On October 30, 1995, the House of Representatives voted 180-12 to pass the Capital Unitary Review Act. H.R. 66, 179th Leg., 1st Spec. Sess. 519 (Pa. 1995) (the “Act”). On October 31, 1995, the Senate voted 42-5 to pass the act. S. 179-59, 1st Spec. Sess. 330-31 (Pa. 1995). Governor Tom Ridge signed the Act into law on November 17, 1995. See 42 Pa. Cons. Stat. Ann. § 9570 (West 1997) (suspended permanently in 1997 by order of Pennsylvania Supreme Court)).

[FN24]. The Act's sponsor, Senator Stewart Greenleaf, noted that CURA:

would address the lengthy and protracted appeals in death penalty cases. We all know how many years an appeal such as that takes, sometimes as many as 8 or 10 years, a decade. Part of the reason is that there are two parts to an appeal. One of them is called a direct appeal, which is handled after the imposition of the death sentence on a defendant and then he has an appeal to the Supreme Court of Pennsylvania. After the supreme court handles that case, and the whole process could take years, then after the supreme court denies the appeal, the defendant may then take what is known as a collateral appeal and raise matters that have not been raised on direct appeal. And that, again, could take years. So the purpose of the bill is to consolidate and expedite the death penalty appeals so that both the direct and collateral appeals are taken at the same time so that it is not as long and it is done in a more expeditious manner.

S. 38, 179th Leg. 1st Spec. Sess. 214 (Pa. 1995).

[FN25]. 548 Pa. CCXXXV (1997).

[FN26]. Id.

[FN27]. “State Attorney General Mike Fisher... said the court overstepped its constitutional authority in suspending the law....” Peter Jackson, Supreme Court Asked to Reconsider Death-Row Appeals Law, Phila. Inquirer, Oct. 2, 1997, at B3. Senator Stewart Greenleaf commented “[m]y hope is that the court will reevaluate its order and restore the law as enacted by the duly elected representatives of the people.” Id.

[FN28]. Petition to Reconsider Sua Sponte Per Curiam Order Suspending the Capital Unitary Review Act and Portions of the Post Conviction Relief Act (on file with Attorney General, Mike Fisher). See also, The Supreme Court's Suspension of The Acts of The General Assembly: Hearings Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997). The House of Representatives Judiciary Committee (Subcommittee on Courts) conducted hearings on October 16, 1997, in York, Pennsylvania; on October 23, 1997, in Altoona, Pennsylvania; and on October 30, 1997, in Harrisburg, Pennsylvania.

[FN29]. Judicial Reform House Bills 10 and 838: Hearing on H. 10 and H. 838 Before the House Judiciary Comm., 179th Leg., 1st Spec. Sess. at 33, 34 (Pa. 1995) (statement of Jeffrey Piccola, Majority Chairman, House Judiciary Comm.).

[FN30]. See Gallant, supra note 6, at 475 (noting differences between adjudicating and rulemaking).

[FN31]. Grau, supra note 13, at 428.

[FN32]. Id.

[FN33]. Weinstein, supra note 10, at 3-4.

[FN34]. See Gallant, supra note 6, at 449 (noting procedural rules concern liberties and other rights of citizens).

[FN35]. See generally A. Leo Levin & Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. Pa. L. Rev. 1 (1958) (detailing legislative and judicial interests in creating procedural law).

[FN36]. Grau, supra note 13, at 428-29.

[FN37]. Levin & Amsterdam, supra note 35, at 10.

[FN38]. Id.

[FN39]. Id.

[FN40]. See Gallant, supra note 6, at 447 (noting history of debate).

[FN41]. Id. at 447 n.2.

[FN42]. Levin & Amsterdam, supra note 35, at 3 n.8.

[FN43]. Id.

[FN44]. Gallant, supra note 6, at 447.

[FN45]. 74 A.2d 406 (N.J. 1950).

[FN46]. 307 A.2d 571 (N.J. 1973).

[FN47]. Winberry, 74 A.2d at 408.

[FN48]. Id.

[FN49]. Id. (quoting N.J. Const. art. IV, § 2, para. 3).

[FN50]. Id. at 408.

[FN51]. Id.

[FN52]. Id.

[FN53]. Id. at 409-10.

[FN54]. Levin & Amsterdam, supra note 35, at 8 n.36.

[FN55]. Compare Kaplan & Greene, The Legislature's Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury, 65 Harv. L. Rev. 234 (1951-52) (criticizing decision) with Roscoe Pound, Procedure Under Rules of Court in New Jersey, 66 Harv. L. Rev. 29 (1952) (praising decision).

[FN56]. Busik v. Levine, 307 A.2d 571, 585 n.2 (N.J. 1973).

[FN57]. 307 A.2d 571 (N.J. 1973).

[FN58]. Id. at 573.

[FN59]. See supra note 53 and accompanying text for statement that New Jersey Supreme Court could not make substantive law with its rulemaking authority.

[FN60]. Busik, 307 A.2d at 578-83.

[FN61]. Id. at 583.

[FN62]. Id. at 581.

[FN63]. Gallant, supra note 6, at 474.

[FN64]. See infra note 204 and accompanying text for an explanation of how the Pennsylvania Supreme Court uses rulemaking power in this manner.

[FN65]. Weinstein, supra note 10, at 8.

[FN66]. Id.

[FN67]. See generally Donna J. Pugh, et al., Judicial Rulemaking: a compendium (1984) (providing state-by-state overview of rulemaking powers of state high courts).

[FN68]. Act of June 21, 1937, P.L. 1982, 17 P.S. § 61 (current version at 42 Pa. Cons. Stat. Ann. § 1722 (West 1981)).

[FN69]. Act of July 11, 1957, P.L. 819, 17 P.S. § 2084 (current version at 42 Pa. Cons. Stat. Ann. § 1722(a)(1) (West 1981)).

[FN70]. Woodside, supra note 7, at 420.

[FN71]. The Preparatory Committee for the Constitutional Convention of the Commonwealth of Pennsylvania, The Judiciary: Reference Manual No. 5 (1967-68).

[FN72]. Id. at 52-53.

[FN73]. Id. at 53.

[FN74]. This suggestion was incorporated in article V, section 10(c) of the Pennsylvania Constitution of 1968. See supra note 9 for the text of this provision.

[FN75]. In Pennsylvania, all constitutional amendments after 1790 “were submitted to the electorate and approved by a majority of those voting before they became effective.” Woodside, supra note 7, at 9. The 1968 convention recommendations were submitted to the electorate in separate parts. Id. at 579-82. The “Constitution of 1968” was actually amended by referenda in 1966, 1967, and 1968. 1 Pa. Cons. Stat. Ann. § 906 (West 1985).

[FN76]. Commonwealth v. Balph, 3 A. 220, 229 (Pa. 1886).

[FN77]. See Commonwealth v. Wharton, 435 A.2d 158, 162 n.2 (Pa. 1981) (acknowledging assistance of rules committees and judicial council).

[FN78]. See Pugh, et al., supra note 67, at 195 (providing overview of rulemaking process in Pennsylvania).

[FN79]. Pa. R.J.A. 103(a)(1) (West 1998).

[FN80]. Id.

[FN81]. Id. at 103(a)(2).

[FN82]. Id. at 103(b)(1)-(2).

[FN83]. Id. at 103(a)(3).

[FN84]. Id.

[FN85]. Grau, supra note 13, at 434-35.

[FN86]. Id. at 435.

[FN87]. Id.

[FN88]. The power of the people is specifically addressed in article I, section 2 of the Pennsylvania Constitution:

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such a manner as they may think proper.

Pa. Const. art. I, § 2.

[FN89]. See supra note 9 for text of article V, section 10(c) of the Pennsylvania Constitution.

[FN90]. See supra note 9 for text of article V, section 10(c) of the Pennsylvania Constitution.

[FN91]. Levin & Amsterdam, supra note 35, at 20.

[FN92]. 435 A.2d 158 (Pa. 1981). The court, being equally divided, affirmed an earlier holding that a statute granting the state the right to a jury trial upon demand was unconstitutional because it conflicted with the authority of the trial court to approve a defendant's motion to waive trial by jury. Id. at 168.

[FN93]. 456 A.2d 1326 (Pa. 1982). The court held that the legislature exceeded its constitutional authority in enacting a statute inconsistent with an existing rule of criminal procedure promulgated by the supreme court. Id. at 1329.

[FN94]. Rule 1101 of the Pennsylvania rules of Criminal Procedure provides:

In all cases, the defendant may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, signed by the defendant, the judge, and the defendant's attorney as a witness.

Pa. R. Crim. P. 1101.

[FN95]. Section 5104(c) of the Pennsylvania Code provides: “[i]n criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.” 42 Pa. Cons. Stat. Ann. § 5104(c) (West 1981).

[FN96]. Gallant, supra note 6, at 463.

[FN97]. Id. & nn. 104-05.

[FN98]. Id. & n.106.

[FN99]. Commonwealth v. Wharton, 435 A.2d 158, 160 (Pa. 1981).

[FN100]. Id.

[FN101]. Id. at 162-63.

[FN102]. Id. at 168.

[FN103]. Id. at 158.

[FN104]. Id. at 160.

[FN105]. Id.

[FN106]. Id. at 160-62.

[FN107]. Id. at 163-64. The public policy arguments supporting Rule 1101 included: (1) section 5104(c) would allow the prosecutor to overrule the court; (2) section 5104(c) unnecessarily burdened the court system with too many jury trials and would be too costly; (3) the court-made rule encouraged bench trials, thereby saving places like Philadelphia from a tremendous backlog of cases. Id.

[FN108]. Id. at 168.

[FN109]. Id. at 169.

[FN110]. Id.

[FN111]. Id.

[FN112]. Id.

[FN113]. Id. at 170.

[FN114]. Id. at 172.

[FN115]. Id. at 173.

[FN116]. Commonwealth v. Sorrell, 456 A.2d 1326, 1327 (Pa. 1987).

[FN117]. Id. at 1327-29.

[FN118]. Id. at 1329.

[FN119]. Compare Wharton, 435 A.2d at 163-64 (making public policy arguments) with Sorrell, 456 A.2d at 1327-29 (omitting public policy arguments).

[FN120]. Compare Wharton, 435 A.2d at 604 (joining opinion in support of reversal) with Sorrell, 456 A.2d at 1326 (joining majority opinion).

[FN121]. Sorrell, 456 A.2d at 1330 (Nix, J., dissenting).

[FN122]. Id. at 1330-31 (Nix, J., dissenting).

[FN123]. Compare Wharton, 435 A.2d at 169 (concluding section 5104(c) as substantive) with Sorrell, 456 A.2d at 1330-31 (concluding section 5104(c) as between substantive and procedural).

[FN124]. Sorrell, 456 A.2d at 1330-31 (Nix, J., dissenting).

[FN125]. Id. at 1331 (Nix, J., dissenting).

[FN126]. Id. (Nix, J., dissenting).

[FN127]. Id. at 1331-33 (McDermott, J., dissenting).

[FN128]. Id. at 1332 (McDermott, J., dissenting).

[FN129]. See supra notes 103-07, 117-20, and accompanying text for a discussion of Justice Roberts' opinions.

[FN130]. See supra notes 108-11, 121-26, and accompanying text for a discussion of Justice Nix's opinions.

[FN131]. See supra notes 112-15, 120, and accompanying text for a discussion of Justice Larsen's opinions.

[FN132]. See supra notes 94-128, and accompanying text for a discussion of these cases.

[FN133]. Pa. Const. art. V, § 10(c). See supra note 9 for text of article V, section 10(c).

[FN134]. 394 A.2d 444 (Pa. 1978).

[FN135]. Id. at 445.

[FN136]. Id. at 447.

[FN137]. Id. at 446.

[FN138]. Id. at 451.

[FN139]. Id.

[FN140]. Id.

[FN141]. Id. at 448-50.

[FN142]. Id.

[FN143]. Id. at 446.

[FN144]. An advisory opinion is “an interpretation of the law without binding effect.” Black's Law Dictionary 35-36 (6th ed. 1991). To avoid issuing an advisory opinion, the court must be satisfied that two factors are present: (1) there are adverse litigants; and (2) there is a substantial likelihood a decision in favor of one litigant will have some effect on the litigants. Chemerinsky, supra note 5, at 48-50. Because In re Pa. C. S. § 1703 lacked any litigants whatsoever, it is readily apparent that the “case” is an advisory opinion.

[FN145]. See In re Pa. C. S. § 1703, 394 A.2d 444, 450 (stating Rule 1703 would compromise independence of judiciary).

[FN146]. 582 F.2d 810 (3d Cir. 1978).

[FN147]. Id. at 814 (citing Pa. Const. art. V, § 10(c)).

[FN148]. Pa. Const. art. V, § 10(c). See supra note 9 for text of article V, section 10(c).

[FN149]. The relevant portions of Rule 238 of the Pennsylvania Rules of Civil Procedure stated:

(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court... shall

(1) Add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or the court's decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict, or decision;

(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff and continues that offer until the commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict, or decision, exclusive of the damages for delay, more than 125 percent of the offer, the court or arbitrators shall not award damages for delay for the period after the date the offer was made.

Pa. R. Civ. P. 238.

[FN150]. 436 A.2d 147 (Pa. 1981).

[FN151]. 515 A.2d 1350 (Pa. 1986).

[FN152]. Pa. R. Civ. P. 238. See supra note 149 for relevant portions of Rule 238.

[FN153]. Laudenberger, 436 A.2d at 149. Rule 238 was also challenged on due process and equal protection grounds. Id.

[FN154]. Id. at 155.

[FN155]. Id.

[FN156]. Id. (quoting State v. Leonardis, 375 A.2d 607, 614 (N.J. 1977)).

[FN157]. Id. at 155-56. The Pennsylvania Supreme Court also found that Rule 238 did not violate the due process or equal protection clauses. Id.

[FN158]. Id. at 157 (Roberts, J., dissenting).

[FN159]. Id. at 161 (Roberts, J., dissenting).

[FN160]. Id. at 158 (Roberts, J., dissenting).

[FN161]. Id. at 160 (Roberts, J., dissenting).

[FN162]. Id. (Roberts, J., dissenting).

[FN163]. Id. at 157 (Roberts, J., dissenting).

[FN164]. Craig v. Magee Mem'l Rehabilitation Ctr., 515 A.2d 1350, 1353 (Pa. 1981).

[FN165]. Plaintiff was injured while being treated in the Magee Memorial Rehabilitation Center (“Magee Memorial”) in May of 1974. Id. at 1352. In April of 1976, plaintiff filed her suit against Magee Memorial. Id. After a mistrial in 1980, the suit was tried to conclusion in January of 1983, and the jury found Magee Memorial liable for plaintiff's injuries. Id. The jury's verdict exceeded Magee Memorial's last settlement offer by more than twenty-five percent; hence, $16,450 in delay damages were imposed against Magee Memorial pursuant to Rule 238. Id. The pre-trial record showed, however, that many of the frequent and lengthy postponements, delays and requests for continuances were attributable to the plaintiff. Id.

[FN166]. Id. at 1353.

[FN167]. Id. at 1354 (Hutchinson, J., concurring).

[FN168]. Id. (Hutchinson, J., concurring).

[FN169]. Id. at 1355 (Hutchinson, J., concurring).

[FN170]. The Federalist No. 51, at 356 (James Madison) (Benjamin Fletcher Wright, ed., 1961).

[FN171]. 435 A.2d 158 (Pa. 1981). See supra notes 99-116 and accompanying text for a discussion of Wharton.

[FN172]. 456 A.2d 1326 (Pa. 1982). See supra notes 117-28 and accompanying text for a discussion of Sorrell.

[FN173]. See supra notes 94-102 and accompanying text for a discussion of the conflict between Rule 1101 and section 5104(c).

[FN174]. See supra notes 94-97 and accompanying text for a discussion of the effect of Rule 1101.

[FN175]. See supra notes 98-102 and accompanying text for a discussion of the legislature's enactment and the Pennsylvania Supreme Court's suspension of section 5104 (c).

[FN176]. See supra notes 22-28 for a discussion of the Capital Unitary Review Act.

[FN177]. Megan O'Matz, Session Results in 24 New Laws So Far, The Morning Call, Nov. 1, 1995, at A1, available in LEXIS, Newslibrary, Arcnws File.

[FN178]. Attorney General's Petition to Reconsider Sua Sponte Per Curiam Order Suspending the Capital Unitary Review Act and Portions of the Post Conviction Relief Act, at 1.

[FN179]. Id.

[FN180]. See supra note 23 for additional information on the voting for CURA.

[FN181]. Suspension of the Capital Unitary Review Act and Related Sections of Act No. 1995-32 (SS1); and Amendment of Chapter 1500 of the Rules of Criminal Procedure, 548 Pa. CCXXXV (1997).

[FN182]. Woodside, supra note 7, at 49.

[FN183]. See Charles G. Geyh, Highlighting a Low Point on a High Court: Some Thoughts on the Removal of Pennsylvania Supreme Court Justice Rolf Larsen and the Limits of Judicial Self-Regulation, 68 Temp. L. Rev. 1041, 1076 (1995) (stating Pennsylvania Constitution renders judiciary operations “immune to legislative oversight”).

[FN184]. Winberry v. Salisbury, 74 A.2d 406, 419 (N.J. 1950) (Case, J., concurring).

[FN185]. Geyh, supra note 183, at 1076.

[FN186]. Id.

[FN187]. See Kay, supra note 14, at 41 (discussing lack of review of supreme court rulemaking).

[FN188]. See infra notes 230-42 and accompanying text for a discussion of how the Pennsylvania Supreme Court uses rulemaking power to establish public policy.

[FN189]. See infra notes 223-28 and accompanying text for a discussion of how the Pennsylvania Supreme Court has potentially violated the Pennsylvania Constitution.

[FN190]. See supra notes 94-132 and accompanying text for a discussion of Commonwealth v. Wharton and Commonwealth v. Sorrell.

[FN191]. See, e.g., Busik v. Levine, 307 A.2d 571, 591 (N.J. 1973) (Mountain, J., dissenting) (discussing areas where court judgments impact substantive law).

[FN192]. See id. at 591-92 (discussing legislative supremacy in making substantive law).

[FN193]. Bruce Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq. L. Rev. 409, 409 (1994).

[FN194]. See infra notes 195-99 and accompanying text for a discussion of this problem.

[FN195]. Act of Nov. 26, 1996, Pub. L. No. 135-76, § 10, 1996 Pa. Laws.

[FN196]. See 40 Pa. Cons. Stat. Ann. § 1301.813-A(a) (West Supp. 1998) (listing items attorney certifies to when filing papers in action).

[FN197]. 40 Pa. Cons. Stat. Ann. § 1301.813-A(c) (West Supp. 1998).

[FN198]. Pa. Order 97-43 (1997).

[FN199]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of House Judiciary Committee, 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of Lee McCormick, President of the Pennsylvania Medical Society).

[FN200]. John Mulcahey, Comment, Separation of Powers in Pennsylvania: The Judiciary's Prevention of Legislative Encroachment, 32 Duq. L. Rev. 539, 549 (1994).

[FN201]. Id.

[FN202]. See supra notes 152-63 and accompanying text for a discussion of Laudenberger v. Port Authority of Allegheny County.

[FN203]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of Attorney General Mike Fisher).

[FN204]. Id.

[FN205]. Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.).

[FN206]. Woodside, supra note 7, at 613.

[FN207]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Legis., 1st Spec. Sess. (Pa. 1997) (statement of Northampton County District Attorney John Morganelli).

[FN208]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of York County District Attorney H. Stanley Reber).

[FN209]. 394 A.2d 932 (Pa. 1978).

[FN210]. Id. at 937.

[FN211]. In re Pa. C. S. § 1703, 394 A.2d 444, 451 (Pa 1978). See supra notes 134-45 for a discussion of In re Pa. C. S. sec. 1703.

[FN212]. Id. at 448.

[FN213]. 582 F.2d 810 (3d Cir. 1978).

[FN214]. Id. at 814. See supra notes 146-47 and accompanying text for a discussion of Garrett v. Bamford.

[FN215]. Pa. Const. art. V, § 10(c). See supra note 9 for text of article V, section 10(c).

[FN216]. See, e.g., Heller v. Frankston, 475 A.2d 1291, 1297 n.2 (Pa. 1984) (Hutchinson, J., dissenting) (noting exclusive power appears nowhere in text of Article V, section 10(c)).

[FN217]. See, e.g., Commonwealth v. Presley, 686 A.2d 1321, 1325 (Pa. Super. Ct. 1996) (noting article V, section 10(c) does not prevent legislature from enacting procedural laws).

[FN218]. One commentator noted:

[T]he text of section 10(c) does not support an exclusive [judicial] power. If the text were interpreted as meaning that all procedural legislation is invalid, why would the text mandate that only “inconsistent' legislation be suspended?

Ledewitz, supra note 193, at 414.This conclusion was joined by another commentator, who proclaimed:

The last clause of article V, section 10(c) clearly implies that the General Assembly retains law-making power over court practice, procedure, and conduct. If “all laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions,' the unavoidable corollary is that legislation consistent with such rules is valid and proper.

Geyh, supra note 183, at 1055 (quoting Bruce Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq. L. Rev. 409, 413-14 (1994)).

[FN219]. Weinstein, supra note 10, at 6-7.

[FN220]. Id. at 87.

[FN221]. See supra notes 134-45 and accompanying text for a discussion of In re Pa. C. S. §1703.

[FN222]. A newspaper editorial observed that:

The court is now a quasi-legislative body as well as a judicial one. Nevertheless, in virtually every task it undertakes, it operates in secrecy. Take, for example, the Court's autonomous power to promulgate rules of criminal procedure. It is done behind closed doors, without any public participation, without any prior public notice of proposed changes, nor any requirement to obtain comments from interested parties.... The failure to provide prior notice of proposed rules deprives the public and officials... adequate opportunity to inform the court of the practical consequences of a proposed change. Moreover, the court, without prior notice or debate, can and does overturn laws enacted by the legislature on the premise that the lawmakers have intruded on the procedural rulemaking authority of the court.

The Supreme disgrace: Secret and unaccountable, Phila. Inquirer, Mar. 3, 1978 at 6-A.

[FN223]. In re Pa. C. S. § 1703, 394 A.2d 444, 445 (Pa. 1978).

[FN224]. See supra note 144 for a discussion of advisory opinions.

[FN225]. See Chemerinsky, supra note 5, at 49 (discussing advisory opinions).

[FN226]. Pa. Const. art. V, § 10(c). See supra note 9 for the text of article V, section 10(c).

[FN227]. See supra note 29 and accompanying text for a discussion of the proposed evidence code.

[FN228]. Under Rule 235 of the Pennsylvania Rules of Civil Procedure, the Attorney General has the right to intervene in a lawsuit to defend the constitutionality of a legislative enactment. The pertinent portion of Rule 235 provides that:

In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be unconstitutional and the Commonwealth is not a party, the party raising the question of constitutionality shall promptly give notice thereof by registered mail to the Attorney General of Pennsylvania together with a copy of the pleading or other portion of the record raising the issue and shall file proof of the giving of the notice. The Attorney General may intervene as a party or may be heard without the necessity of intervention.

Pa. R. Civ. P. 235.

[FN229]. Mulcahey, supra note 200, at 552.

[FN230]. Weinstein, supra note 10, at 6.

[FN231]. Commonwealth v. Wharton, 435 A.2d 158, 163 (Pa. 1981). See supra notes 99-116 and accompanying text for a discussion of Commonwealth v. Wharton.

[FN232]. Gallant, supra note 6, at 464.

[FN233]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of York County District Attorney H. Stanley Reber).

[FN234]. Commonwealth v. Michael, 674 A.2d 1044, 1047 (Pa. 1996).

[FN235]. Id.

[FN236]. Id. at 1045-47.

[FN237]. Id. at 1046.

[FN238]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (comments of Suzanne Eng, mother of murdered child).

[FN239]. See Ledewitz, supra note 193, at 415-18 (discussing misuse of Article V, section 10(c) as basis for constitutional interpretation).

[FN240]. See Code of Judicial Conduct, 207 Pa. Code Canon 7 (1995) (proscribing political activity inappropriate to judicial office).

[FN241]. Pa. Const. art. V, § 15(2); see also The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of Senator Jeffrey Piccola) (noting unaccountability since retention vote only required every ten years).

[FN242]. Kay, supra note 14, at 41.

[FN243]. See The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of Attorney General Mike Fisher) (arguing article V, section 10(c) should be amended to allow legislative oversight); Id. (statement of Senator Jeffrey Piccola) (concluding article V, section 10(c) must be amended); Id. (statement of Northampton County District Attorney John Morganelli) (commenting constitutional legitimacy can only be restored with amendment of article V, section 10(c)); Id. (statement of York County District Attorney H. Stanley Reber) (noting State District Attorney's Association supports amendment of article V, section 10(c)); Geyh, supra note 183, at 1076 (noting Article V, section 10(c) must be amended to restore balance of legislative and judicial power); Ledewitz, supra note 193, at 417 (concluding Pennsylvania should subject rulemaking to legislative oversight).

[FN244]. See Weinstein, supra note 10, at 20 (noting rulemaking system should give legislature power to make changes); Gallant, supra note 6, at 448 (concluding legislative review of rulemaking appropriate on theoretical and practical grounds); Levin & Amsterdam, supra note 35, at 14 (stating power of legislature to assess and evaluate rules best way to develop effective rulemaking system).

[FN245]. Pa. Const. art. I, § 2.

[FN246]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of Pennsylvania State University Assistant Professor of Political Science Daniel DiLeo).

[FN247]. Pa. Const. art. XI, § 1.

[FN248]. See generally Pugh, et al., supra note 67 (surveying state and federal judicial rulemaking).

[FN249]. Idaho Const. art. V, § 13.

[FN250]. N.J. Const. art. VI, § 2.

[FN251]. N.M. Const. art. III, § 1.

[FN252]. Md. Const. art. IV, § 18.

[FN253]. Ohio Const. art. V, § 5(b).

[FN254]. Alaska Const. art IV, § 15.

[FN255]. Fla. Const. art. V, § 2(a).

[FN256]. See supra note 23 for a record of the votes for and against CURA.

[FN257]. U.S. Const. art. III.

[FN258]. See 28 U.S.C. §§ 2071-2072 (giving United States Supreme Court power to make rules of civil and criminal procedure).

[FN259]. Pugh, et al., supra note 67, at 260-61.

[FN260]. 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1101 (2d ed. 1987).

[FN261]. Gallant, supra note 6, at 477.

[FN262]. See supra notes 94-98 and accompanying text for a discussion of the legislature's response to Rule 1101.

[FN263]. Because article V, section 10(c) gives the Pennsylvania Supreme Court constitutional authority to make procedural rules, the authority must be eliminated in order to require the court to send its proposed rules to the legislature. See supra note 9 for text of article V, section 10(c).

[FN264]. Compare U.S. Const. art. III with Pa. Const. art. V, § 13(a).

[FN265]. Harry L. Witte, Judicial Selection in the People's Democratic Republic of Pennsylvania: Here the People Rule?, 68 Temp. L. Rev. 1079, 1148-49 (1995).

[FN266]. House members are elected to two-year terms. Pa. Const. art. II, § 3.

[FN267]. Senators are elected to four-year terms. Pa. Const. art. II, § 3.

[FN268]. Governors are elected to four-year terms. Pa. Const. art. IV, § 3.

[FN269]. The Supreme Court's Suspension of the Acts of the General Assembly: Hearing Before the Subcomm. on Courts of the House Judiciary Comm., 181st Leg., 1st Spec. Sess. (Pa. 1997) (statement of Senator Jeffrey Piccola) (noting same).

[FN270]. Geyh, supra note 183, at 1064 (quoting Bruce Kauffman, Judicial Selection in Pennsylvania: A Proposal, 27 Vill. L. Rev. 1163, 1166-67 (1982)).

[FN271]. See supra notes 134-45 and accompanying text for a discussion of In re Pa. C. S. § 1703.

[FN272]. Laudenberger v. Port Authority of Allegheny County, 436 A.2d 147, 158 (Pa. 1981) (Roberts, J., dissenting).

[FN273]. See supra notes 37-39 and accompanying text for a discussion of the reasons why the judiciary was given authority to make procedural rules.

[FN274]. Levin & Amsterdam, supra note 35, at 24.

[FN275]. Weinstein, supra note 10, at 20.

[FN276]. S. Res. 779, 181st Leg. (Pa. 1997).

[FN277]. Id.

[FN278]. See supra notes 257-61 for a discussion of the federal rulemaking system.

[FN279]. See supra notes 276-77 and accompanying text for discussion of Senate Bill 779.

[FN280]. Levin & Amsterdam, supra note 35, at 39.

[FN281]. The Federalist No. 48, at 343 (James Madison) (Benjamin Fletcher Wright ed., 1961).

END OF DOCUMENT

 71 Temp. L. Rev. 711   Temple Law Review   Fall, 1998

Emerging Issues in State Constitutional Law

Comment

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