constitutional questions should not be reached if not necessary for decision
How later courts described this case
- constitutional questions should not be reached if not necessary for decision
- Commonwealth not required to aid defense counsel’s investigation or sift through evidence on defendant’s behalf
- recognizing that challenge to ballot question regarding amendment to Confrontation Clause was in fact a challenge brought to protect the fundamental right to vote
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
League of Women Voters of :
Pennsylvania and Lorraine Haw, :
Petitioners :
:
v. : No. 578 M.D. 2019
: ARGUED: June 10, 2020
Kathy Boockvar, the Acting Secretary :
of the Commonwealth, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
PER CURIAM
ORDER ANNOUNCING THE JUDGMENT OF THE COURT
AND NOW, this 7th day of January, 2021, the application for summary
relief filed by Petitioners, League of Women Voters of Pennsylvania and Lorraine
Haw, is GRANTED IN PART and DENIED IN PART as follows:
1. The Court hereby declares that the proposed amendment to
Article I of the Pennsylvania Constitution, as set forth in Joint Resolution No. 2019-
1 (Proposed Amendment), violates Article XI, Section 1 of the Pennsylvania
Constitution and, therefore, is unconstitutional.
2. The Court further declares that all votes cast on the Proposed
Amendment in the November 2019 general election are invalid.
1
The decision in this case was reached before January 4, 2021, when Judge Leavitt served as
President Judge.
3. The Secretary of the Commonwealth is ordered not to tabulate or
certify any votes cast on the Proposed Amendment in the November 2019 general
election.
4. All other requests for declaratory relief are denied as moot.
Judge Ceisler files an opinion in support of the order announcing the
judgment of the Court in which Judge Wojcik joins.
Judge McCullough files an opinion in support of the order announcing
the judgment of the Court.
President Judge Leavitt files an opinion in opposition to the order
announcing the judgment of the Court in which Judge Fizzano Cannon joins.
Judges Cohn Jubelirer, Brobson, Covey, and Crompton did not
participate in the decision of this matter.
2
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
League of Women Voters of :
Pennsylvania and Lorraine Haw, :
Petitioners :
:
v. : No. 578 M.D. 2019
: ARGUED: June 10, 2020
Kathy Boockvar, the Acting Secretary :
of the Commonwealth, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION IN SUPPORT OF ORDER ANNOUNCING THE
JUDGMENT OF THE COURT
BY JUDGE CEISLER FILED: January 7, 2021
This Petition for Review (Petition) comes before us in our original
jurisdiction. Petitioners are the League of Women Voters of Pennsylvania2 and
Lorraine Haw,3 a registered Pennsylvania voter (collectively, Voters). Respondent
1
The decision in this case was reached before January 4, 2021, when Judge Leavitt served
as President Judge.
2
The League of Women Voters (League) is a nationwide, nonpartisan grassroots
organization that believes that through informed action, people can make profound changes in their
communities. Pet. for Review, ¶ 5. The goal of the League is to help create an informed,
empowered citizenry and a responsible, responsive government. Id. ¶ 8. One way the League
works to fulfill its mission is through education and awareness of election and voting issues.
3
Ms. Haw alleges her brother was murdered and her son is serving a life sentence without
parole. Id. ¶ 11. She believes both her son and her brother’s murderer should be freed. Id. ¶ 12.
Ms. Haw also has a criminal record, for which she is seeking a pardon. Id. ¶¶ 14, 15. She is
(Footnote continued on next page…)
is Kathy Boockvar, Acting Secretary of the Commonwealth (Secretary).4 Voters
have requested declaratory relief, as well as an injunction to prevent presentation of
a ballot question to the electorate during the November 2019 General Election
(Ballot Question). The Ballot Question asked the electorate to decide whether a
new amendment, Section 9.1 (Proposed Amendment), should be added to Article I
of the Pennsylvania Constitution, PA. CONST. art. I. The Proposed Amendment, also
known as the Victims’ Rights Amendment, would create a number of new
constitutional rights for victims and others directly impacted by crimes.
The parties have filed cross-applications for summary relief. After thorough
review, the Court grants in part and denies in part Voters’ application for summary
relief in the form of declaratory and injunctive relief. The Court denies the
Secretary’s application for summary relief.
I. Background
On June 19, 2019, the Senate passed the Proposed Amendment as House Bill
276, also known as Joint Resolution 2019-1. The impetus of the Proposed
Amendment is protection for the rights of victims and others directly impacted by
crimes. See Appendix at iii-v for the full text of the Proposed Amendment.
Pursuant to the requirements of Section 201.1 of the Pennsylvania Election
Code (Election Code),5 25 P.S. § 2621.1, the Attorney General prepared a Plain
concerned about what will happen to her request for a pardon if a purported victim of her crimes
comes forward to object to her pardon request. Id. The Petition for Review (Petition) alleges that
Ms. Haw agrees with some parts of the proposed constitutional amendment but disagrees with
others, and she cannot separately vote on each right the proposed amendment would establish. Id.
¶ 16.
4
This Court also granted intervention to Shameekah Moore, Martin Vickless, Kristin June
Irwin, and Kelly Williams (collectively, Moore Intervenors), who are aligned with the Secretary,
and Ronald L. Greenblatt, Esquire, who is aligned with Voters.
5
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. Section 201.1 of the
Election Code was added by the Act of February 19, 1986, P.L. 29, 25 P.S. § 2621.1.
2
English Statement6 of the Proposed Amendment’s contents. See Appendix at i-iii
for the full text of the Plain English Statement.
Pursuant to the requirements of Section 1110(b) of the Election Code, 25 P.S.
§ 3010(b), the Secretary prepared the Ballot Question for approval by the General
Assembly. Although the Proposed Amendment contains 749 words excluding its
title, any ballot question presented for voting is statutorily restricted to not more than
75 words. Id. Here, the Ballot Question was 73 words long. See Appendix at i for
the text of the Ballot Question.
The parties agree that the Proposed Amendment, the Plain English Statement,
and the Ballot Question were all properly published and accessible to the electorate
in advance of the November 2019 election, as required by Section 201.1 of the
Election Code.
On October 10, 2019, Voters filed their Petition in this Court’s original
jurisdiction, challenging the constitutionality of the Proposed Amendment and the
Ballot Question.7 Voters also filed an application for a preliminary injunction,
seeking to enjoin presentation of the Ballot Question pending final disposition of the
Petition on the merits. A preliminary injunction hearing was held on October 23,
2019 (PI hearing).8 Following the PI hearing, this Court found Voters sustained their
6
Section 201.1 of the Election Code requires the Attorney General to prepare a Plain
English Statement “which indicates the purpose, limitations and effects of the ballot question on
the people of the Commonwealth.” 25 P.S. § 2621.1. The Secretary was required to include the
Plain English Statement in publication of the Proposed Amendment. Id.
7
The Secretary and Moore Intervenors raised laches as a defense to Voters’ request for an
injunction. Our Supreme Court has declared, however, that “laches cannot be invoked to prevent
the determination of the propriety of the submission of [a constitutional] amendment.” Tausig v.
Lawrence, 197 A. 235, 239 (Pa. 1938).
8
Immediately prior to the hearing, counsel for the parties and Intervenors stipulated to the
following: 1) Ms. Haw and Moore Intervenors are registered voters in the Commonwealth; 2) the
(Footnote continued on next page…)
3
burden of proving they met the criteria for obtaining a preliminary injunction.
Therefore, this Court issued an order preliminarily enjoining tabulation and
certification of the votes on the Proposed Amendment pending a disposition of the
Petition on the merits.9 Our Supreme Court affirmed.10 League of Women Voters v.
Boockvar, 219 A.3d 594 (Pa. 2019).
On December 13, 2019, the parties filed cross-applications for summary relief
pursuant to Pa. R.A.P. 1532(b). The cross-applications for summary relief are now
before this Court for disposition.
II. Issues
In the three counts of the Petition, Voters present three main issues for
disposition by this Court, which we summarize as follows.
In Count I of the Petition, Voters aver that the Proposed Amendment would
effect multiple significant and separate changes to the Pennsylvania Constitution by
mandating a wide range of new, separate, and independent rights to victims and
others directly impacted by a crime. Voters assert that the Proposed Amendment
would impermissibly extend new powers to the General Assembly, infringe the
authority of the Pennsylvania Supreme Court and the Governor, and amend multiple
existing constitutional articles and sections pertaining to multiple subjects. For these
General Assembly and Office of Attorney General properly adhered to the process by which the
General Assembly and the Secretary can place the Proposed Amendment on the November 2019
ballot as the Ballot Question; and 3) the costs incurred by the Department of State for publication
of the Proposed Amendment, the Plain English Statement, and the Ballot Question throughout the
Commonwealth.
9
During the PI hearing, Voters withdrew their initial request for an order enjoining
submission of the Ballot Question to the electorate in the November 2019 General Election. The
Proposed Amendment remained on the ballot, and the votes remain to be tabulated and certified if
Voters do not prevail on the merits. Thus, the Petition is not moot.
10
Chief Justice Saylor filed a dissenting opinion, in which Justices Dougherty and Mundy
joined.
4
reasons, Voters argue that the Proposed Amendment violates Article XI, Section 1
of the Pennsylvania Constitution11 by impermissibly encompassing multiple subjects
and thus preventing the electorate from voting “yes” to the Proposed Amendment
provisions they approve and “no” to the Proposed Amendment provisions they
oppose.
In Count II of the Petition, Voters assert that the Ballot Question further
violates Article XI, Section 1,12 because the Ballot Question does not contain the
actual text of the Proposed Amendment. Voters interpret Article XI, Section 1 to
require publication on the ballot of the entire text of the Proposed Amendment.
In Count III of the Petition, Voters allege that the Proposed Amendment, the
Ballot Question, and the Plain English Statement do not fairly, accurately, and
clearly apprise the electorate of the issues because they fail to inform the electorate
of many changes that the Proposed Amendment would effect on existing
constitutional rights of the accused. See Sprague v. Cortes, 145 A.3d 1136, 1141
(Pa. 2016); Stander v. Kelley, 250 A.2d 474, 480 (Pa. 1969).
III. Discussion
A. Introduction
Article I of the Pennsylvania Constitution is the Commonwealth’s Declaration
of Rights, which delineates the terms of the social contract between government and
the people that are of such “general, great and essential” quality as to be ensconced
11
In pertinent part: “When two or more amendments shall be submitted they shall be voted
upon separately.” PA. CONST. art. XI, § 1.
12
In pertinent part: “[S]uch proposed amendment or amendments shall be submitted to the
qualified electors of the State in such a manner, and at such time at least three months after being
so agreed to by the two Houses, as the General Assembly shall prescribe . . . .” PA. CONST. art.
XI, § 1.
5
as “inviolate.” PA. CONST. art. I, preamble & § 25; see also PA. CONST. art. I, § 2;
Robinson Twp., Wash. Cnty. v. Commonwealth, 83 A.3d 901, 947 (Pa. 2013).
In considering the text of the provisions, we first look to their
placement in the larger charter. The structure of the Pennsylvania
Constitution highlights the primacy of Pennsylvania’s protection of
individual rights: “The very first Article of the Pennsylvania
Constitution consists of the Pennsylvania Declaration of Rights, and the
first section of that Article affirms, among other things, that all citizens
‘have certain inherent and indefeasible rights.’”
Commonwealth v. Molina, 104 A.3d 430, 442 (Pa. 2014) (quoting Pap’s A.M. v. City
of Erie, 812 A.2d 591, 603 (Pa. 2002)).
Moreover, our charter further protects the rights detailed in Article I, Section
25: “To guard against transgressions of the high powers which we have delegated,
we declare that everything in this article is excepted out of the
general powers of government and shall forever remain inviolate.” Id. (quoting PA.
CONST. art. I, § 25). “Unlike the Bill of Rights of the United States Constitution
which emerged as a later addendum in 1791, the Declaration of Rights in the
Pennsylvania Constitution was an organic part of the state’s original constitution of
1776, and appeared (not coincidentally) first in that document.” Id. (quoting
Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa. 1991)).
Under our system, one accused of a crime is presumed innocent
until the prosecuting attorney has demonstrated beyond a reasonable
doubt to an impartial jury of the vicinage that he and the malefactor are
identical, or that his actions match the definition or conform to the
elements of the malefaction of which he stands accused.
Commonwealth v. Raffensberger, 435 A.2d 864, 865 (Pa. Super. 1981). “This
presumption of innocence is but one of the many aspects of the fundamental law of
our land. Like its counterparts, it emanates from the core concept which seeks to
restrain governmental excess and prevent abuse by those exercising state power.”
6
Id. (emphasis added). “As it pursues justice the Commonwealth is thus committed
not only to the principle that one is innocent until proven guilty, but also to the
principle of fairness in criminal prosecutions. Indeed, these principles are
complementary[;] one without the other would frustrate the ends and objectives of
justice.” Id.
“The reasonable-doubt standard plays a vital role in the American scheme of
criminal procedure. It is a prime instrument for reducing the risk of convictions
resting on factual error.” In re Winship, 397 U.S. 358, 363 (1970). The presumption
of innocence is a bedrock, axiomatic and elementary principle, the enforcement of
which lies at the foundation of the administration of our criminal law. Id.; Coffin v.
United States, 156 U.S. 432, 453 (1895).
“Our state Constitution, by various sections of [A]rticle I, provides that all
men ‘have certain inherent and indefeasible rights,’ among others to address by
petition those invested with the powers of government, and that this ‘shall forever
remain inviolate.’” Spayd v. Ringing Rock Lodge No. 665, Bhd. of R.R. Trainmen
of Pottstown, 113 A. 70, 72 (Pa. 1921).
Moreover, “[t]he right in question is a fundamental one, expressly recognized
in the organic law of our state as belonging to ‘citizens.’” Id.
In other words, it is possessed by members of the state, or ‘citizens’ to
work out the public weal, rather than by individuals, to protect their
persons or property or to serve private ends. The Constitution does not
confer the right, but guarantees its free exercise, without let or
hindrance from those in authority, at all times, under any and all
circumstances; and, when this is kept in view, it is apparent that such a
prerogative can neither be denied by others nor surrendered by the
citizen himself.
Id. (citation omitted).
7
Applying these basic precepts of our Constitution, and our democracy to the
matter at hand, it is clear that the Proposed Amendment, by its plain language, will
immediately, profoundly, and irreparably impact individuals who are accused of
crimes, the criminal justice system as a whole, and most likely victims as well.
B. Single Subject Requirement
Article XI, Section 1 of the Pennsylvania Constitution provides, in pertinent
part: “When two or more amendments shall be submitted they shall be voted upon
separately.” PA. CONST. art. XI, § 1. In discussing the importance of this
constitutional provision, this Court has explained:
The process of amending the Constitution described in Article
XI, Section 1 has been described by the Supreme Court of Pennsylvania
as “a concentration of all the power of the people in establishing organic
law for the commonwealth . . . . It is not lawmaking, which is a distinct
and separate function, but it is a specific exercise of the power of a
people to make its constitution.” Commonwealth [] v. Griest, . . . , 46
A. 505, 506 ([Pa.] 1900).
The Constitution is the fundamental law of our
Commonwealth, and in matters relating to alterations or
changes in its provisions, the courts must exercise the most
rigid care to preserve to the people the right assured to
them by that instrument. No method of amendment can
be tolerated which does not provide the electorate
adequate opportunity to be fully advised of proposed
changes.
Commonwealth ex rel. Attorney General v. Beamish, . . . 164 A. 615,
616-17 ([Pa.] 1932). Not only must the electorate be fully advised of
the proposed changes to the Constitution, but also all of the
Constitution’s technical requirements for amendment must be
observed. Amendments to the Constitution should not be taken lightly
or made easily. The process described in Article XI, Section 1 is
reserved for simple, straightforward changes to the Constitution, easily
described in a ballot question and easily understood by the voters. This
process should not be used to circumvent a constitutional convention,
8
the process for making complex changes to the Constitution . . . . When
multiple changes with important ramifications for our system of
criminal justice are proposed, . . . the electorate cannot be adequately
informed of the changes and their effects by a single ballot question and
a brief, plain English statement.
We agree with the Supreme Court of Oregon that the
requirement that amendments be voted on separately “serves as a
safeguard that is fundamental to the concept of a constitution.” Armatta
v. Kitzhaber, . . . 959 P.2d 49, 63 ([Or.] 1998). As our Supreme Court
stated in Griest, amending the Constitution is not lawmaking, i.e., the
making of legislation. It is the changing of our organic law, i.e.,
“constitutionmaking.” The voters must be able to express their will as
to each substantive constitutional change separately, especially if these
changes are not so interrelated that they must be made together. If
multiple changes are so interrelated that they must be made together, as
a unit, then they are too complex to be made by the process described
in Article XI, Section 1. Those changes should be made by
constitutional convention, where they can be more adequately debated
and understood.
Pa. Prison Soc’y v. Commonwealth, 727 A.2d 632, 634-35 (Pa. Cmwlth. 1999)
(Prison Society I), rev’d on other grounds, 776 A.2d 971 (Pa. 2001).
Our Supreme Court has considered the separate vote requirement in a number
of cases, three of which provide guidance in this matter. The Court has held that
ballot questions far less wide-ranging than the Proposed Amendment violated
Article XI, Section 1.
In Bergdoll v. Kane, 731 A.2d 1261 (Pa. 1999), the General Assembly, by
joint resolution, had drafted a proposed amendment that would have deleted the face-
to-face requirement of the Confrontation Clause of the Pennsylvania Constitution,
PA. CONST. art. I, § 9, and would have given the General Assembly the authority to
establish by statute the manner in which child testimony could be taken. The ballot
question asked:
9
Shall the Pennsylvania Constitution be amended to provide (1) that a
person accused of a crime has the right to be “confronted with the
witnesses against him,” instead of the right to “meet the witnesses face
to face,” and (2) that the General Assembly may enact laws regarding
the manner by which children may testify in criminal proceedings,
including the use of videotaped depositions or testimony by closed-
circuit television?
Id. at 1265-66. This Court found the ballot question violated Article XI, Section 1
since the question amended both Article I, Section 9’s Confrontation Clause and
Article V, which grants the Supreme Court the power to prescribe the general rules
governing practice, procedure and the conduct of the courts. Thus, the electorate
had the right to vote on these two amendments separately.
Our Supreme Court affirmed, agreeing the proposed amendment violated
Article XI, Section 1 because it contained two proposals, amendments to Article I,
Section 9 and Article V, but did not permit the electorate to vote separately on each
amendment. Notably, now-Chief Justice Saylor issued a concurrence opining that
the proposed amendment encompassed two separate, non-interdependent changes to
the Constitution. He opined that the changes to the Confrontation Clause “lacked
the interdependence necessary to justify their presentation to voters within the
framework of a single question.” Id. at 1271 (Saylor, J., concurring).
Prison Society I involved a challenge to a proposed constitutional amendment
to Article IV, Section 9, relating to the Governor’s power to remit fines and
forfeitures and to grant reprieves to commutation of sentences and pardons. At the
time, Article IV also mandated that no pardon or commutation be granted except
upon the written recommendation of either two-thirds or a majority of the Board of
Pardons after a full public hearing. Article IV also addressed, in subsection (b),
members of the Board and how their appointments and confirmations were effected.
The proposed amendment would have required the Board’s pardon recommendation
10
to be unanimous, would have changed who could be appointed to the Board, and
would have changed the requirement that Board members be confirmed by two-
thirds or a majority of the Senate to the requirement that a majority of the Senate
confirm the nominees. The ballot question reflected these proposed changes.
This Court denied the Pennsylvania Prison Society’s claim for injunctive
relief, but ultimately determined that the proposed amendment violated Article XI,
Section 1, because it constituted five amendments to the Constitution, and each
amendment required a separate vote. In deciding the issue, this Court observed that
it must “favor a natural reading [of constitutional provisions] which avoids
contradictions and difficulties in implementation, which completely conforms to the
intent of the framers and which reflects the views of the ratifying voter.” Id. at 634.
On appeal, our Supreme Court observed that the Bergdoll Court considered
the content, purpose, and effect of the proposed amendment even though the ballot
question itself did not specifically refer to each constitutional provision that would
have been effectively amended by its adoption. Our Supreme Court observed that
the proposed amendment in Bergdoll would have amended only one section of one
article of the Constitution. The ballot question and the text of the proposed
amendment in Prison Society I, however, encompassed two separate amendments
(as opposed to the five amendments this Court had discerned) to Article IV, Section
9, and did not permit the electorate to vote separately upon each proposed
amendment. In Pennsylvania Prison Society v. Commonwealth, 776 A.2d 971 (Pa.
2001) (Prison Society II), our Supreme Court determined that the proposed
amendment restructured the pardoning power of the Board and altered the
confirmation process for Board members. The Court further determined that the
proposed amendment relating to the Board’s composition and unanimous vote
11
requirement constituted a single question. The change in the process for
confirmation of gubernatorial nominees, however, presented a separate amendment
that required a separate vote.13
In his concurring opinion, Chief Justice Saylor opined that a single-subject
matter focus should be used to determine whether alterations of the Constitution are
sufficiently interrelated to justify their presentation to the electorate in a single
question. Id. at 984 (Saylor, J., concurring, joined by Castille and Newman, JJ.).
In Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005), a majority of the
electorate approved amendments to Article I, Section 6 of the Constitution (relating
13
Even though the question violated Article XI, Section 1’s separate vote requirement, the
Court declined to invalidate the question because the proposed amendment did not actually change
the Senate’s confirmation process. Rather, both Article IV, Section 9 and the proposed amendment
provided that a majority of the Senate must confirm the Governor’s Board nominees. The
proposed amendment only deleted the “two-thirds” language but retained the “majority” language
for confirmation. Pa. Prison Soc’y v. Commonwealth, 776 A.2d 971, 982 (Pa. 2001) (Prison
Society II). The Court determined that because the proposed amendment did not change the
confirmation process, there was really only one issue to be presented to the electorate. Separate
votes were therefore not required. The Court noted, however, that Article XI, Section 1 “will
require that a ballot question be declared null and void, except in the [unusual] circumstances
presented [t]here.” Id. at 982.
12
to trial by jury)14 and Article I, Section 14 (relating to bail and habeas corpus).15
The Grimaud petitioners filed an action in this Court, seeking a declaration that,
among other things, the amendments were invalid because each ballot question
proposed multiple amendments in violation of Article XI, Section 1. In part, this
Court held that the jury trial and bail questions constituted a single amendment
14
Prior to amendment, Article I, Section 6 provided:
Trial by jury shall be as heretofore, and the right thereof remain inviolate. The
General Assembly may provide, however, by law, that a verdict may be rendered
by not less than five-sixths of the jury in a civil case.
Article I, Section 6, as approved by a majority of the electorate, now provides:
Trial by jury shall be as heretofore, and the right thereof remain inviolate. The
General Assembly may provide, however, by law that a verdict may be rendered
by not less than five-sixths of the jury in a civil case. Furthermore, in criminal
cases the Commonwealth shall have the same right to trial by jury as does the
accused.
PA. CONST. art. I, § 6 (emphasis added); see Grimaud v. Commonwealth, 865 A.2d 835, 839-40
(Pa. 2005).
15
Prior to amendment, Article I, Section 14 provided:
All prisoners shall be bailable by sufficient sureties, unless for capital offense when
the proof is evident or presumption great; and the privilege of the writ of habeas
corpus shall not be suspended, unless when in the case of rebellion or invasion the
public safety may require it.
Article I, Section 14, as approved by a majority of the electorate, now provides:
All prisoners shall be bailable by sufficient sureties, unless for capital offense or
for offenses which the maximum sentence is life imprisonment or unless no
condition or combination of conditions other than imprisonment will reasonably
assure the safety of any person and the community when the proof is evident or
presumption great; and the privilege of the writ of habeas corpus shall not be
suspended, unless when in the case of rebellion or invasion the public safety may
require it.
PA. CONST. art. I, § 14 (emphasis added); see Grimaud, 865 A.2d at 839.
13
because they served one core purpose and effectuated one substantive change. Id.
at 840.
On appeal, our Supreme Court addressed the applicable standard used to
determine whether the changes were properly presented as a single question. Noting
that its decision in Prison Society II resulted in no clear majority on the standard to
apply, the Court was persuaded by then-Justice Saylor’s concurring opinion in that
case suggesting the test should have a “subject-matter focus to determine whether
[the] alterations are sufficiently interrelated to justify their presentation to the
electorate in a single question.” Grimaud, 865 A.2d at 841 (quoting Prison Society
II, 776 A.2d at 984 (Saylor, J., concurring, joined by Castille and Newman, JJ.))
(emphasis added).
The Supreme Court also found persuasive several authorities from other
jurisdictions that have utilized a single-subject test and examined the
interdependence of the proposed constitutional changes in determining the necessity
of separate votes. The Supreme Court expressly adopted the “subject-matter test”
for determining whether a ballot question violates Article XI, Section 1 of the
Pennsylvania Constitution. In Grimaud, the Court determined that the ballot
questions related to a single subject to justify inclusion in a single question, bail.
The petitioners in Grimaud advanced similar arguments to those made here.
In Grimaud, the petitioners asserted that the single ballot question amended four
other provisions found in Article I of the Constitution. The Court analyzed the ballot
question’s substantive effect on the Constitution, examining its content, purpose,
and effect. Id. at 842. The Supreme Court in Grimaud agreed with this Court’s
conclusion that “merely because an amendment ‘may possibly impact other
provisions’ does not mean it violates the separate vote requirement.” Id. Rather,
14
the “test to be applied is not merely whether the amendments might touch other
parts of the Constitution when applied, but rather, whether the amendments
facially affect other parts of the Constitution.” Id. (emphasis added).
However, Bergdoll, Prison Society II, and Grimaud are not directly applicable
to this case because they involved amendments to existing constitutional provisions,
not adoption of an entirely new section that may conflict with other provisions of the
Constitution. See Sprague, 145 A.3d at 1145 (Todd, J., dissenting) (“[T]here is a
categorical difference between the act of creating something entirely new and
altering something which already exists. Language which suggests the former
while, in actuality, doing the latter is, at the very least, misleading, and, at its worst,
constitutes a ruse.”) (emphasis added). Nonetheless, Bergdoll, Prison Society II, and
Grimaud still provide some guidance here. These decisions instruct that in deciding
whether a proposed amendment is constitutional, courts must determine whether it
encompasses a single subject that is sufficiently interrelated. Courts also must
consider the proposed amendment’s substantive effect on the Constitution by
examining its content, purpose and effect. “It is the responsibility of [the courts] to
insure that the provisions of the Constitution establishing the procedure for the
proposal and adoption of constitutional amendments are satisfied.” Prison Society
II, 776 A.2d at 977. “The Constitution is the fundamental law of our
Commonwealth, and in matters relating to alterations or changes in its provisions,
the courts must exercise the most rigid care to preserve to the people the right assured
to them by that instrument.” Id. (quoting Beamish, 164 A. at 616-17).
Of critical importance, the process outlined in Article XI, Section 1 “was not
designed to effectuate sweeping, complex changes to the Constitution,” Prison
15
Society II, 776 A.2d at 976 (emphasis added); see also Prison Society I, 727 A.2d at
634-35.
[V]oters should be given free opportunity to modify the fundamental
law as may seem to them fit, but this must be done in the way they
themselves have provided, if stability, in the carrying on of government,
is to be preserved. It is the duty of the courts to follow the rules fixed
by the Constitution. If believed to be unwise, in the provisions
expressed, it should be rewritten, or modified, but as long as plain
words are used, directing what shall be permitted, it is imperative on
the courts to restrain any actions that are forbidden.
Prison Society II, 776 A.2d at 976 (quoting Taylor v. King, 130 A. 407, 409-10 (Pa.
1925), overruled in part on other grounds by Stander).
Applying the Supreme Court’s decisions here, it is the judgment of the Court
that the Proposed Amendment would implement sweeping and complex changes to
the Constitution. Indeed, an exhaustive search of Pennsylvania case law reveals no
other amendment to a section of the Constitution that was as sweeping in scope as
the Proposed Amendment. The Proposed Amendment impermissibly extends new
powers to the General Assembly in violation of the Constitution and facially and
substantially amends multiple existing constitutional articles and sections pertaining
to multiple subject matters that are not sufficiently interrelated to be voted upon as
a single constitutional amendment.
16
1. Proposed Amendment’s Facial and Substantial Effects on
Constitutional Rights of the Accused16
Article I, Section 9 of the Pennsylvania Constitution17 provides an accused
with the right to be confronted with witnesses against him and the right to
compulsory process for obtaining witnesses and other evidence in his favor. A
defendant’s ability to obtain discoverable material is part of the compulsory process
guaranteed under Article I, Section 9. PI Hearing Testimony (H.T.) at 30. However,
the Proposed Amendment would facially allow a victim or any other person directly
impacted by a crime18 to refuse an interview, deposition, or other discovery request
16
Judge Leavitt’s opinion dissenting from the order announcing the Court’s judgment
posits that the judgment improperly relies on subjective and speculative concerns and fails to focus
on the criteria for obtaining injunctive relief, specifically whether greater harm will result from
denying than from granting such relief. However, sufficient evidence was offered at the PI hearing
to render non-speculative the concerns and conclusions regarding the wide-ranging effects that
would flow from the Proposed Amendment, as well as the insufficient interrelation of those effects
to constitute a single subject for constitutional amendment purposes.
17
Article I, Section 9, titled Rights of Accused in Criminal Prosecutions, provides:
In all criminal prosecutions the accused hath a right to be heard by himself and his
counsel, to demand the nature and cause of the accusation against him, to be
confronted with the witnesses against him, to have compulsory process for
obtaining witnesses in his favor, and, in prosecutions by indictment or information,
a speedy public trial by an impartial jury of the vicinage; he cannot be compelled
to give evidence against himself, nor can he be deprived of his life, liberty or
property, unless by the judgment of his peers or the law of the land. The use of a
suppressed voluntary admission or voluntary confession to impeach the credibility
of a person may be permitted and shall not be construed as compelling a person to
give evidence against himself.
PA. CONST. art. I, § 9 (emphasis added).
18
The Proposed Amendment fails to explain what other persons, in addition to the victim,
may be “directly impacted by a crime.” The term could include the victim’s family, friends, and
even strangers who witness a crime and are impacted by what they have seen. Without appropriate
limiting language, the number of persons asserting a direct impact, and an accompanying right to
refuse all discovery requests, could foreseeably expand to encompass virtually everyone with any
information relevant to the defense. The potential damage to an accused’s ability to defend himself
(Footnote continued on next page…)
17
made on behalf of a criminal defendant. Pet. for Review, Ex. A; Pet’rs’ Ex. P-1;
H.T. at 24-25.
In addition to witness testimony, evidence sought in discovery may include
text messages, e-mails, Facebook posts and evidence from other social media
platforms, medical and financial records, cell phone data, and security videos. Such
evidence can be critical to building a defense. H.T. at 27-29, 32, 56-57, 65. If not
obtained as soon as possible, such evidence can easily be lost forever. H.T. at 27.
However, under the Proposed Amendment, victims of crimes, and anyone else who
has been directly impacted by the crimes, will have the right to refuse to produce
requested evidence, citing their absolute constitutional right to privacy, that is, “to
be treated with fairness and respect for the victim’s safety, dignity and privacy.”
Pet. for Review, Ex. A; Pet’rs’ Ex. P-1 (some emphasis deleted).
Presumably, defense attorneys will seek court orders to compel the production
of such evidence; but if a victim of a crime, or anyone else impacted by that crime,
asserts a constitutional right to privacy, even relevant evidence might be
unobtainable, because a court cannot issue an order, including a subpoena, that
violates the Constitution. See H.T. at 59, 66, 70, 81. Because the prosecution has
no obligation to investigate or engage in discovery seeking exculpatory evidence, 19
a provision causing the defendant’s inability to obtain discovery necessary to his
against a criminal charge could be profound. Furthermore, constitutionally mandating that all
persons “directly impacted” by a crime shall have the right to participate in each step of the
criminal justice process, would likely grind the proceedings to a halt, at great detriment to both the
accused and the victims.
19
Defense counsel cannot simply rely upon the good faith efforts of the Commonwealth to
conduct comprehensive investigations on behalf of the accused. Prosecutors have no obligation
to do such investigations. The Commonwealth is only mandated to provide the defense with
evidence that the Commonwealth has obtained. See Commonwealth v. Maldonodo, 173 A.3d 769,
783 (Pa. Super. 2017) (Commonwealth not required to aid defense counsel’s investigation or sift
through evidence on defendant’s behalf).
18
defense would facially and substantially deny his constitutional rights under Article
I, Section 9.
Additionally, defense attorneys will be forced to file pretrial motions and
appeals setting forth the nature of the case, the relevance of the requested discovery,
and the reason why the discovery request was denied in order to protect the accused,
and the record, for future appeals. H.T. at 45-46, 51. This will clog the courts’
dockets, delaying dispositions and trials to the detriment of those accused of crimes
and victims alike. The increase in pretrial discovery motions, the resulting delays in
obtaining discovery (if such discovery is eventually granted at all), and the
uncertainty of determining who is impacted by a crime and how to notify each such
person, will all impede the defendant’s right to a speedy trial, another constitutional
protection. See PA. CONST. art. I, § 9 (providing a criminal defendant “in
prosecutions by indictment or information, a speedy public trial by an impartial jury
of the vicinage”); H.T. at 44-45. Such delays would not only harm the accused; they
would also deny victims their rights to justice if prosecutions had to be dismissed or
withdrawn because the Commonwealth was unable to bring trials within the time
frame of Pennsylvania Rule of Criminal Procedure 600, Pa.R.Crim.P. 600. H.T. at
40-41.
Even negotiated plea agreements would be affected. Without compulsory
discovery as mandated by Article I, Section 9 of the Constitution, the Proposed
Amendment would hamstring defense attorneys’ efforts to negotiate reasonable and
informed plea agreements, because neither defense counsel nor the accused would
have a complete understanding of the case. H.T. at 41-42. A guilty plea is not
19
knowing, intentional, or voluntary if the accused does not know the full extent of the
evidence that would be available at trial.20
The trial process itself would also be adversely affected. Trial judges already
have the power and duty to protect witnesses from badgering and harassment by
counsel. However, defense counsel would be hampered from conducting effective
cross-examination if protection for a witness’s dignity and privacy precluded
necessary inquiry into delicate personal matters that may be completely germane to
the case and critical to the defense. H.T. at 36-37.
Passage of the Proposed Amendment would also disrupt matters within the
Department of Corrections and local county jails. Release of inmates, whether
through parole, probation, or completion of a term of incarceration, could be delayed
because the victim and anyone else directly impacted by the crime would have the
right to be heard in “any proceeding where the right of the victim is implicated,
including, but not limited to, release . . . .” Pet. for Review, Ex. A; Pet’rs’ Ex. P-1
(emphasis deleted). Agencies responsible for the release of inmates would need to
verify that victims, and anyone else directly impacted by the crime, had been
provided notice and, where required, an opportunity to be heard concerning the
inmate’s release. This is particularly harmful to those inmates who have completed
the term of their sentences and are lawfully entitled to be released.
Thus, the Proposed Amendment would facially and substantially affect
multiple constitutional rights of criminal defendants. Moreover, those rights are not
sufficiently interrelated to be the subject of a single constitutional amendment.
20
Fear of the unknown outcome of trials, and the desire to get out of jail are just two well-
known reasons that defendants plead guilty to crimes they may not have committed.
20
2. Facial and Substantial Effects on Multiple Constitutional Provisions
In addition to Article I, Section 9, the Proposed Amendment would facially
and substantially affect multiple separate constitutional provisions and rights. They
include Article I, Section 14 (the general right of the accused to bail), Article IV,
Section 9 (the Governor’s power to commute sentences and grant pardons, among
other things), and Article V (our Supreme Court’s power to prescribe general rules
governing practice, procedure and the conduct of all courts). Thus, the Proposed
Amendment would facially and substantially affect multiple separate constitutional
provisions and rights.
Voters also argue that presentation of the Proposed Amendment to the
electorate will facially and substantially undermine the electorate’s fundamental
right to vote, as provided by Article I, Section 5 of the Constitution: “Elections shall
be free and equal; and no power, civil or military, shall at any time interfere to
prevent the free exercise of the right of suffrage.” PA. CONST. art. I, § 5. The
Constitution is the fundamental law of our Commonwealth. Prison Society II, 776
A.2d 971. Therefore, there is a fundamental right to vote. Bergdoll, 731 A.2d at
1268 (recognizing that challenge to ballot question regarding amendment to
Confrontation Clause was in fact a challenge brought to protect the fundamental
right to vote). To safeguard this fundamental right, Article XI, Section 1 of the
Constitution requires that the electorate must be given the opportunity to vote on
each proposed victims’ right, because each is a separate amendment to the
Constitution. Pursuant to Article XI, Section 1, separate votes are required when
two or more amendments are submitted to the electorate. PA. CONST. art. XI, § 1.21
21
The Secretary suggests that the Department of State advertised the Proposed
Amendment, the Plain English Statement, and the Ballot Question as required by statute in August,
September, and October 2018, as well as in August, September, and October 2019. In addition,
(Footnote continued on next page…)
21
The goal of the courts is to protect the right to vote, not to disenfranchise
voters. In re Luzerne Cnty. Return Bd., 290 A.2d 108 (Pa. 1972). The Constitution
mandates separate votes on each proposed constitutional amendment, and if a
prospective amendment placed on the ballot fails to satisfy this mandate,
disenfranchisement occurs. Voters argue that nearly every right provided in the
Proposed Amendment facially constitutes a separate amendment to the Constitution.
Voters maintain that despite the numerous changes proposed to the Constitution, the
electorate has only one option: to vote either “yes” or “no” to the entirety of the
Proposed Amendment, which is constitutionally prohibited because the resulting
changes to our Constitution are not sufficiently interrelated. Prison Society II, 776
A.2d at 981.22
3. Insufficient Interrelation of Subjects
Contrary to the Secretary’s assertions, the competing rights established in the
Proposed Amendment are not sufficiently interrelated to permit characterization as
a single subject. The Proposed Amendment facially addresses a wide range of
subject matters including bail, discovery, due process, restitution, the right to
privacy, and evidence control, all under the auspices of connecting them to victims’
rights. However, the right to restitution is not related to the right to be notified and
participate in all public hearings or the right to curb the accused’s right to confront
the documents are available on the Department’s website. Thus, the electorate was provided many
opportunities to inform itself of the Proposed Amendment.
Neither Voters nor the Court suggests that the General Assembly, Office of Attorney
General, or the Secretary failed to follow the law in getting the Ballot Question on the ballot. That
is not the issue. The issue is whether the Ballot Question violates the single-subject rule of Article
XI, Section 1, requiring separate votes by the electorate on each proposed right.
22
This problem will be compounded if the full text (or even a fair summary) of the
Proposed Amendment will not be on the ballot.
22
the witnesses against him. The proposed right to participate in bail hearings is not
related to the right to notification of (and participation in) release of the offender or
commutation of his sentence.
The Proposed Amendment (1) contains multiple changes to the Constitution
because it provides a whole series of new, separate, and independent rights to victims
of crimes, and (2) would facially and substantially affect multiple existing
constitutional articles and sections across multiple subject matters. It proposes
changes to multiple enumerated constitutional rights of the accused—including the
right to a speedy trial, the right to confront witnesses, the right against double
jeopardy, the right to pretrial release, the right to post-conviction relief, and the right
to appeal—as well as changes to the public’s right of access to court proceedings.
First, Article I of our Constitution establishes rights that pertain to the
relationship between the Commonwealth and its citizens. The majority of Article I
rights proscribe certain conduct by the Commonwealth. The Proposed Amendment
appears to turn Article I on its head, enabling victims, and possibly witnesses, to
prevent individuals accused of crimes from asserting their fundamental
constitutional rights to defend themselves.
While the Proposed Amendment guarantees rights to victims, the substantive
effect on the Constitution would be to infringe on rights in several provisions of the
Constitution, particularly Article I, Sections 923 and 14, which directly relate to
Commonwealth’s ability to take away an individual’s freedoms.
23
Article I, Section 9 provides:
In all criminal prosecutions the accused hath a right to be heard by himself and his
counsel, to demand the nature and cause of the accusation against him, to be
confronted with the witnesses against him, to have compulsory process for
obtaining witnesses in his favor, and, in prosecutions by indictment or information,
(Footnote continued on next page…)
23
Voters’ brief correctly identifies multiple constitutional rights that would be
facially and substantially impacted by the Proposed Amendment. The affected rights
include those conferred by the Confrontation Clause of Article I, Section 924 (as well
as the right to a speedy trial) and the Right to Open Courts and Full Remedy found
in Article I, Section 11.25
Voters’ claim that the Proposed Amendment facially and substantially
infringes on our Supreme Court’s powers to prescribe rules governing the practice,
procedure and conduct of all courts, is also well taken. In addition to its effect on
discovery rules discussed above, the Proposed Amendment affects the courts in two
further ways. First, a victim asserting the constitutional privacy right could demand
closed proceedings, contrary to Article I, Section 11’s requirement that the courts be
open to all. Second, the Proposed Amendment gives victims the right to participate
a speedy public trial by an impartial jury of the vicinage; he cannot be compelled
to give evidence against himself, nor can he be deprived of his life, liberty or
property, unless by the judgment of his peers or the law of the land. The use of a
suppressed voluntary admission or voluntary confession to impeach the credibility
of a person may be permitted and shall not be construed as compelling a person to
give evidence against himself.
PA. CONST. art. I, § 9.
24
Article I, Section 9 provides several independent and fundamental rights to the criminally
accused, each of which is enforced separately and defined by its own body of law. Despite
amendments over time, Article I, Section 9 “has consistently maintained the same range of rights
and privileges to individuals accused of committing crimes.” Ken Gormley, The Pennsylvania
Constitution: A Treatise on Rights and Liberties 329 (2004) (emphasis added).
25
Article I, Section 11 provides:
All courts shall be open; and every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of law, and right and justice
administered without sale, denial or delay. Suits may be brought against the
Commonwealth in such manner, in such courts and in such cases as the Legislature
may by law direct.
PA. CONST. art. I, § 11.
24
and be heard at all stages of the criminal justice process. As the courts may not
abridge, enlarge or modify the substantive rights of any litigant, the Proposed
Amendment could impose on the courts’ ability to maintain its calendar in an
efficient and expeditious manner. Thus, the Proposed Amendment does not merely
“touch” other parts of the Constitution when applied, but rather, that the Proposed
Amendment facially, patently, and substantially affects other parts of the
Constitution.
It is the judgment of this Court that the Proposed Amendment would facially
and substantially violate Article XI, Section 1’s separate vote and single-subject
requirements and would facially and substantially impact other articles and sections
of the Constitution, as discussed above. Because the Constitution mandates a
separate vote on each proposed constitutional amendment, and the Proposed
Amendment fails to satisfy this mandate, disenfranchisement will occur if the
electorate must vote on the Proposed Amendment as a unitary proposal. The
Proposed Amendment would prevent the electorate from voting “yes” to the
Proposed Amendment provisions they approve and “no” to the Proposed
Amendment provisions they oppose.
C. Criteria for Permanent Injunction
To obtain relief in the form of a permanent injunction, Voters must establish
a clear right to relief and that such relief is necessary to prevent a legal wrong for
which there is no adequate remedy at law.26 Bd. of Revision of Taxes, City of Phila.
26
1 Pa.C.S. § 903 provides that after certification of the results of the ballot question, the
Governor shall issue a proclamation as to whether a majority of the electorate passed the proposed
amendment. This section does not address the date upon which a proposed amendment becomes
part of the Constitution. In the preliminary injunction proceeding, the parties disputed whether the
Proposed Amendment would take effect automatically or whether it would require implementing
legislation. This issue related solely to the question of whether passage of the Proposed
(Footnote continued on next page…)
25
v. City of Philadelphia, 4 A.3d 610, 627 (Pa. 2010). Based on our analysis in Section
B above, it is the judgement of the Court that Voters have sustained their burden of
showing a clear right to relief and the absence of a remedy at law.
Voters must also establish that greater harm will result from denying
injunctive relief than from granting it. Kuznik v. Westmoreland Cnty. Bd. of
Comm’rs, 902 A.2d 476, 504 (Pa. 2006). It is the judgment of the Court that Voters
have satisfied this burden as well and that the harm from denying the injunction they
seek would substantially outweigh any harm that might result from granting the
injunction.
Many of the rights to be afforded under the Proposed Amendment are already
provided by Sections 201, 212-16, 501-02, and 701 of the Crime Victims Act.27 See
18 P.S. §§ 11.201 (rights of victims); 11.212-.214 (responsibilities of state and local
law enforcement agencies and Department of Corrections, local correctional
facilities, and Pennsylvania Parole Board); 11.215 (responsibilities of Department
of Human Services and mental health institutions under basic bill of rights); 11.216
(responsibilities of juvenile probation officers); 11.501 (pre-parole notification to
victim); 11.502 (petitions to deny parole upon expiration of minimum sentence); and
11.701 (persons eligible for compensation from the Crime Victims Fund). Victims
also have access to protections and services offered by other statutes, and the General
Amendment in the absence of a preliminary injunction would result in immediate harm. As
immediacy of harm is not an element required to obtain permanent injunctive relief, we do not
address that issue here.
27
Act of November 24, 1998, P.L. 882, as amended, 18 P.S. §§ 11.101 – 11.5102.
26
Assembly is free to enact additional protections, provided it does so within the
constraints of the Constitution.28
By contrast, as discussed in Section B above, denying the injunction would
impinge on the constitutional rights of criminal defendants, the constitutional
authority of the executive and judicial branches of state government, and the
constitutional rights of the electorate to vote on each proposed change to the
Constitution.
Therefore, Voters have met their burden of demonstrating that they have a
clear right to relief, that such relief is necessary to prevent a legal wrong for which
there is no adequate remedy at law, and that greater harm will result from denying
injunctive relief than from granting it.
D. Sufficiency of Ballot Question
In addition to their single-subject argument in Count I of the Petition, relating
to the Proposed Amendment, Voters also contend the Ballot Question is
constitutionally infirm in two ways. In Count II of the Petition, Voters contend the
language of Article XI, Section 1 mandates that the entire text of the Proposed
Amendment appear verbatim on the ballot, rather than just the Ballot Question,
which is only a short summary.29 Pet. for Review, ¶ 46. In Count III, Voters argue
that even if use of a summary in a ballot question was constitutionally permissible,
the Ballot Question, as prepared by the Secretary, does not “fairly, accurately, and
clearly” apprise the electorate of the question(s) upon which it is asked to vote.
Stander, 250 A.2d at 480. Because it is the judgment of the Court that Voters are
28
In their brief, Moore Intervenors identify certain rights within the Crime Victims Act that
have been upheld as constitutional.
29
As discussed above, the Proposed Amendment is 749 words long, but the Ballot Question
is just 73 words long. Both are set forth in full in the Appendix to this opinion.
27
entitled to relief on their claim regarding the Proposed Amendment’s violation of
the single-subject rule, we need not reach Voters’ constitutional claims in Counts II
and III regarding the Ballot Question at this time. See Klein v. Council of Pittsburgh,
643 A.2d 1107, 1110 (Pa. Cmwlth. 1994) (constitutional questions should not be
reached if not necessary for decision).
IV. Conclusion
Based on the foregoing discussion, it is the judgment of the Court that Voters
have sustained their burden of demonstrating entitlement to declaratory relief and a
permanent injunction on Count I of the Petition. Voters have established a clear
right to relief and that such relief is necessary to prevent a legal wrong for which
there is no adequate remedy at law. Bd. of Revision of Taxes, 4 A.3d at 627. Voters
have also established that greater harm will result from denying injunctive relief than
from granting it. Kuznik, 902 A.2d at 504.
Because the Court need not reach the claims asserted in Counts II and III of
the Petition, those claims are dismissed as moot.
Therefore, as set forth above and in the accompanying order announcing the
judgment of the Court, the Court grants Voters’ application for summary relief in
the form of declaratory and injunctive relief on Count I, and denies as moot the
claims asserted in Counts II and III. The Court dismisses the Secretary’s application
for summary relief.
__________________________________
ELLEN CEISLER, Judge
Judge Wojcik joins in this Memorandum Opinion in Support of the Order
Announcing the Judgment of the Court.
28
Appendix
Ballot Question
Shall the Pennsylvania Constitution be amended to grant certain rights
to crime victims, including to be treated with fairness, respect and
dignity; considering their safety in bail proceedings; timely notice and
opportunity to take part in public proceedings; reasonable protection
from the accused; right to refuse discovery requests made by the
accused; restitution and return of property; proceedings free from
delay; and to be informed of these rights, so they can enforce them?
Proposed Constitutional Amendment: Crime Victim Rights (Marsy’s Law)
https://www.dos.pa.gov/VotingElections/CandidatesCommittees/RunningforOffice
/Pages/Joint-Resolution-2019-1.aspx (last visited January 6, 2021).
Plain English Statement of the Office of Attorney General
The proposed amendment, if approved by the electorate, will add a new
section to Article I of the Pennsylvania Constitution. That amendment
will provide victims of crimes with certain, new constitutional rights
that must be protected in the same way as the rights afforded to
individuals accused of committing a crime.
The proposed amendment defines “victim” as both a person against
whom the criminal act was committed and any person who was directly
harmed by it. The accused or any person a court decides is not acting
in the best interest of a victim cannot be a victim.
Generally, the proposed amendment would grant victims the
constitutional right to receive notice and be present and speak at public
proceedings involving the alleged criminal conduct. It would also grant
victims the constitutional right to receive notice of any escape or release
of the accused and the right to have their safety and the safety of their
family considered in setting the amount of bail and other release
conditions. It would also create several other new constitutional rights,
such as the right to timely restitution and return of property, the right to
refuse to answer questions asked by the accused, and the right to speak
with a government attorney.
Specifically, the proposed amendment would establish the following
new rights for victims:
• To be treated with fairness and respect for the victim’s safety,
dignity and privacy
i
• To have the safety of the victim and the victim’s family
considered in fixing the amount of bail and release conditions for
the accused
• To reasonable and timely notice of and to be present at all public
proceedings involving the criminal or delinquent conduct
• To be notified of any pretrial disposition of the case
• With the exception of grand jury proceedings, to be heard in any
proceeding where a right of the victim is implicated, including,
but not limited to, release, plea, sentencing, disposition, parole
and pardon
• To be notified of all parole procedures, to participate in the parole
process, to provide information to be considered before the
parole of the offender, and to be notified of the parole of the
offender
• To reasonable protection from the accused or any person acting
on behalf of the accused
• To reasonable notice of any release or escape of the accused
• To refuse an interview, deposition or other discovery request
made by the accused or any person acting on behalf of the
accused
• Full and timely restitution from the person or entity convicted for
the unlawful conduct
• Full and timely restitution as determined by the court in a
juvenile delinquency proceeding
• To the prompt return of property when no longer needed as
evidence
• To proceedings free from unreasonable delay and a prompt and
final conclusion of the case and any related post[-]conviction
proceedings
• To confer with the attorney for the government
• To be informed of all rights enumerated in this section
The proposed amendment would allow a victim or prosecutor to ask a
court to enforce these constitutional rights but would not allow a victim
to become a legal party to the criminal proceeding or sue the
Commonwealth or any political subdivision, such as a county or
municipality, for monetary damages.
Once added to the Pennsylvania Constitution, these specific rights of
victims cannot be eliminated, except by a judicial decision finding all
or part of the amendment unconstitutional or the approval of a
subsequent constitutional amendment. If approved, the General
Assembly may pass a law to implement these new, constitutional rights,
ii
but it may not pass a law eliminating them. If approved, State and local
governments will need to create new procedures to ensure that victims
receive the rights provided for by the amendment.
Id.
Joint Resolution No. 2019-1
Proposing an amendment to the Constitution of the Commonwealth of
Pennsylvania, providing for rights of victims of crime.
The General Assembly of the Commonwealth of Pennsylvania hereby
resolves as follows:
Section 1. The following amendment to the Constitution of
Pennsylvania is proposed in accordance with Article XI:
That Article I be amended by adding a section to read:
§ 9.1. Rights of victims of crime.
(a) To secure for victims justice and due process throughout the
criminal and juvenile justice systems, a victim shall have the
following rights, as further provided and as defined by the
General Assembly, which shall be protected in a manner no less
vigorous than the rights afforded to the accused: to be treated
with fairness and respect for the victim’s safety, dignity and
privacy; to have the safety of the victim and the victim’s family
considered in fixing the amount of bail and release conditions for
the accused; to reasonable and timely notice of and to be present
at all public proceedings involving the criminal or delinquent
conduct; to be notified of any pretrial disposition of the case;
with the exception of grand jury proceedings, to be heard in any
proceeding where a right of the victim is implicated, including,
but not limited to, release, plea, sentencing, disposition, parole
and pardon; to be notified of all parole procedures, to participate
in the parole process, to provide information to be considered
before the parole of the offender, and to be notified of the parole
of the offender; to reasonable protection from the accused or any
person acting on behalf of the accused; to reasonable notice of
any release or escape of the accused; to refuse an interview,
deposition or other discovery request made by the accused or any
person acting on behalf of the accused; full and timely restitution
from the person or entity convicted for the unlawful conduct; full
iii
and timely restitution as determined by the court in a juvenile
delinquency proceeding; to the prompt return of property when
no longer needed as evidence; to proceedings free from
unreasonable delay and a prompt and final conclusion of the case
and any related post[-]conviction proceedings; to confer with the
attorney for the government; and to be informed of all rights
enumerated in this section.
(b) The victim or the attorney for the government upon request
of the victim may assert in any trial or appellate court, or before
any other authority, with jurisdiction over the case, and have
enforced, the rights enumerated in this section and any other right
afforded to the victim by law. This section does not grant the
victim party status or create any cause of action for compensation
or damages against the Commonwealth or any political
subdivision, nor any officer, employee or agent of the
Commonwealth or any political subdivision, or any officer or
employee of the court.
(c) As used in this section and as further defined by the General
Assembly, the term “victim” includes any person against whom
the criminal offense or delinquent act is committed or who is
directly harmed by the commission of the offense or act. The
term “victim” does not include the accused or a person whom the
court finds would not act in the best interests of a deceased,
incompetent, minor or incapacitated victim.
Section 2. (a) Upon the first passage by the General Assembly of this
proposed constitutional amendment, the Secretary of the
Commonwealth shall proceed immediately to comply with the
advertising requirements of section 1 of Article XI of the
Constitution of Pennsylvania and shall transmit the required
advertisements to two newspapers in every county in which such
newspapers are published in sufficient time after passage of this
proposed constitutional amendment.
(b) Upon the second passage by the General Assembly of this
proposed constitutional amendment, the Secretary of the
Commonwealth shall proceed immediately to comply with the
advertising requirements of section 1 of Article XI of the
Constitution of Pennsylvania and shall transmit the required
advertisements to two newspapers in every county in which such
newspapers are published in sufficient time after passage of this
iv
proposed constitutional amendment. The Secretary of the
Commonwealth shall submit this proposed constitutional
amendment to the qualified electors of this Commonwealth at the
first primary, general or municipal election which meets the
requirements of and is in conformance with section 1 of Article
XI of the Constitution of Pennsylvania and which occurs at least
three months after the proposed constitutional amendment is
passed by the General Assembly.
Id. (emphasis deleted); H.B. 276, 203d Gen. Assemb., Reg. Sess. (Pa. 2019-2020).
v
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
League of Women Voters of :
Pennsylvania and Lorraine Haw, :
Petitioners :
: No. 578 M.D. 2019
v. :
: Argued: June 10, 2020
Kathy Boockvar, the Acting Secretary :
of the Commonwealth, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION IN SUPPORT OF ORDER ANNOUNCING THE
JUDGMENT OF THE COURT
BY JUDGE McCULLOUGH FILED: January 7, 2021
In the interest of serving justice, it is imperative to recognize certain
rights and interests of crime victims in the criminal justice system. Understandably,
then, many voters may see value in enshrining such rights in our Constitution. When
the citizens of our Commonwealth are asked to decide whether they wish to amend
the fundamental law of the land, however, they are entitled to know not only what
they are voting for, but also whether their decision will affect other constitutional
provisions. Amending the Constitution is a momentous decision, and our citizens
1
The decision in this case was reached before January 4, 2021, when Judge Leavitt served
as President Judge.
have a right to express their will with regard to each provision by which they will be
governed. Our Constitution recognizes this. “When two or more amendments shall
be submitted they shall be voted upon separately.” PA. CONST. art. XI, §1. Voters
must not be given a Hobson’s choice—asked to decide whether to accept disfavored
amendments along with those they find salutary, or instead to vote “nay” in toto.
The ballot question concerning the proposed Victims’ Rights
Amendment (the Proposed Amendment) offered voters a constitutional “package
deal.” On its face, the Proposed Amendment encompasses a broad array of laudable
and salutary provisions. While ostensibly related to a common theme, it seems clear
to me that the Proposed Amendment contemplates not only the addition of new
rights—many arguably distinct in their subject matter—but also the alteration or
diminution of existing, longstanding rights of the accused. I agree with Judge
Ceisler’s opinion that the Proposed Amendment thus included “two or more
amendments,” and that such amendments “shall be voted upon separately,” PA.
CONST. art. XI, §1. I disagree, however, with significant portions of Judge Ceisler’s
analysis of the applicable constitutional standard.
In Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005), our Supreme
Court articulated the governing standard for assessing whether a ballot question
violates the separate vote requirement of Article XI, Section 1. We apply a “subject
matter test” to determine whether the proposed changes are “sufficiently
interrelated,” and further analyze “the ballot question’s substantive [e]ffect on the
Constitution” through an examination of its “content, purpose, and effect.” Id. at
841-42; see also Pennsylvania Prison Society v. Commonwealth, 776 A.2d 971, 980
(Pa. 2001) (plurality) (noting that ballot question in Bergdoll v. Kane, 731 A.2d 1261
(Pa. 1999), was examined by considering “the content, purpose, and effect of the
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proposed amendments”). If a proposed amendment “facially affect[s] other parts of
the Constitution,” then separate votes are required under Article XI, Section 1.
Grimaud, 865 A.2d at 842 (emphasis omitted). “The question is whether the single
ballot question patently affects other constitutional provisions, not whether it
implicitly has such an effect . . . .” Id.
Judge Ceisler summarizes that the “Proposed Amendment facially
addresses a wide range of subject matters including bail, discovery, due process,
restitution, the right to privacy, and evidence control, all under the auspices of
connecting them to victims’ rights.” League of Women Voters v. Boockvar (Pa.
Cmwlth., No. 578 M.D. 2019, filed January 7, 2021), slip op. at 21 (Ceisler, J., mem.
op. in support of order announcing the judgment of the Court). Numerous of the
Proposed Amendment’s terms relate to the rights of victims to be notified of certain
events that occur within the criminal process and to participate in the relevant
proceedings. It is easy to see, for example, how property-related matters such as
restitution and the return of property used as evidence may be viewed as implicating
subject matter that is distinct from the provisions relating to notice and participation.
In my view, these differing matters are lacking sufficient “interdependence,”
Grimaud, 865 A.2d at 841 (quoting Pennsylvania Prison Society, 776 A.2d at 984
(Saylor, J., concurring)), to truly fall within the ambit of a single subject. For
instance, the provisions relating to notice and participation do not depend upon the
provisions relating to restitution, and vice versa. Where our Supreme Court in
Grimaud concluded that the contemplated changes to bail procedure were
“sufficiently interrelated” because “all concerned disallowance of bail to reinforce
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public safety,” id., that same interrelation is not present in the Proposed
Amendment.2
Naturally, one might resort to the suggestion that the disparate
provisions all simply pertain to the subject of “victims’ rights.” Yet, as demonstrated
by the very text of the Proposed Amendment, the concept of victims’ rights can and
does encompass a wide range of specific actions and restrictions throughout the
criminal process. And as our Supreme Court observed over a century ago when
addressing the similar context of the legislative single-subject requirement of Article
III, Section 3, “no two subjects are so wide apart that they may not be brought into
a common focus, if the point of view be carried back far enough.” Payne v. School
District of Borough of Coudersport, 31 A. 1072, 1074 (Pa. 1895) (per curiam); see
also City of Philadelphia v. Commonwealth, 838 A.2d 566, 585-90 (Pa. 2003)
2
President Judge Leavitt asserts that I have not conducted an analysis of the
“interdependence” of the provisions of the Proposed Amendment. See League of Women Voters,
slip op. at 5 (Leavitt, P.J., mem. op. in opposition to order announcing the judgment of the Court).
To the contrary, I have undertaken this analysis here. President Judge Leavitt quotes from
Grimaud to suggest that the applicable standard in this regard involves assessment of whether the
provisions at issue “constitute a consistent and workable whole on the general topic embraced.”
Id. However, that language, taken from then-Justice Saylor’s concurrence in Pennsylvania Prison
Society, was one of several standards used by other state courts, which Grimaud cited for
persuasive value. Pennsylvania Prison Society, 776 A.2d at 984 n.1 (Saylor, J., concurring)
(quoting Korte v. Bayless, 16 P.3d 200, 203-05 (Ariz. 2001)). Other cited standards used the
phrases “rational linchpin” or “germane to the accomplishment of a single objective.” Id. (quoting
Clark v. State Canvassing Board, 888 P.2d 458, 462 (N.M. 1995); Sears v. State, 208 S.E.2d 93,
100 (Ga. 1974)). Although our Supreme Court in Grimaud noted the persuasive value of these
various formulations, the test that the Court expressly adopted was whether proposed changes are
“sufficiently interrelated . . . to justify inclusion in a single question.” Grimaud, 865 A.2d at 841.
The Grimaud Court held that the proposed changes before it satisfied that standard because “all
concerned disallowance of bail to reinforce public safety.” Id. For the reasons explained above,
the Proposed Amendment does not exhibit a similar degree of interrelation. To the extent that
President Judge Leavitt contends otherwise, her opinion does not detail the purported interrelation
of the Proposed Amendment’s disparate provisions.
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(finding proposed subject of “municipalities” too broad to unify numerous disparate
statutory provisions for purposes of Article III single-subject requirement).
Even assuming that the new rights set forth in the Proposed Amendment
may be deemed to fall within a common subject of “victims’ rights,” the Proposed
Amendment still fails the Grimaud test. Article XI, Section 1 is clear that “two or
more” amendments require separate votes. PA. CONST. art. XI, §1. Under Grimaud,
a facially singular amendment may require separate votes if it patently affects other
constitutional provisions. Grimaud, 865 A.2d at 842. In adopting the reasoning of
now-Chief Justice Saylor’s concurrence in Pennsylvania Prison Society, the Court
in Grimaud established an analysis that looks to the amendment’s “substantive affect
on the Constitution, examining the content, purpose, and effect.” Id. (citing
Pennsylvania Prison Society, 776 A.2d at 980 (plurality)). Thus, as I understand
Grimaud and the language of Article XI, Section 1, Petitioners here need only show
one patent effect upon another constitutional provision in order to demonstrate that
the ballot question was constitutionally flawed, and that the provisions of the
Proposed Amendment could not be effectuated with a single vote. Even granting
that “implicit” effects are insufficient, Grimaud, 865 A.2d at 842, one provision of
the Proposed Amendment makes abundantly clear that Petitioners can carry this
burden.
Article I, Section 9 of our Constitution provides that a criminal
defendant has rights “to demand the nature and cause of the accusation against him,”
“to be confronted with the witnesses against him,” and “to have compulsory process
for obtaining witnesses in his favor.” PA. CONST. art. I, §9. Among the provisions
of the Proposed Amendment is one stating that a victim of a crime—defined to
include both “any person against whom the criminal offense or delinquent act is
PAM - 5
committed” and any person “who is directly harmed[3] by the commission of the
offense or act”—shall have the right “to refuse an interview, deposition or other
discovery request made by the accused or any person acting on behalf of the
accused.” See League of Women Voters, Appendix (Ceisler, J., mem. op. in support
of order announcing the judgment of the Court). This language imposes a clear
limitation upon a criminal defendant’s right to obtain potentially favorable
witnesses, testimony, and materials, and, thus, would serve as a direct barrier to the
accused’s ability to gather exculpatory evidence. Because there is manifest tension
between this portion of the Proposed Amendment and the longstanding protections
of Article I, Section 9, I believe this is precisely the sort of “patent” effect upon
another constitutional provision that Grimaud envisioned. Grimaud, 865 A.2d at
842. Clearly, unlike the bail amendments in Grimaud that did “not substantively
affect the right to defend one’s self, the right to be free from excessive bail, or the
reservation that Article I rights remain inviolate,” id., here the longstanding
constitutional rights of Article I, Section 9 are substantively impacted. In fact, the
right to refuse an interview, deposition, or other discovery request is in direct conflict
with the accused’s exercise of Article I, Section 9 rights to be confronted with
witnesses against him and to have compulsory process to obtain witnesses in his
favor. It is in direct conflict with the ability of an accused to know the nature and
cause of the accusation against him. In other words, this portion of the Proposed
3
I note that Judge Ceisler’s opinion states that the definition of “victim” includes
individuals “directly impacted” by a crime. League of Women Voters, slip op. at 17 & n.19
(Ceisler, J., mem. op. in support of order announcing the judgment of the Court) (emphasis in
original). However, the definition uses the term “harmed,” rather than “impacted.” Regardless,
because the scope of such “harm” is not delineated, I agree with Judge Ceisler’s suggestion that it
may be difficult to determine precisely which individuals would be entitled to claim the protections
of the Proposed Amendment in a given case. Id. at 17 n.19.
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Amendment would interfere, hinder, and prevent the accused from exercising his
full Article I, Section 9 rights.
We need not speculate or engage in hypotheticals on this matter, for on
this point, the language is plain. Thus, to the extent that President Judge Leavitt
contends that Petitioners, and by the extension the present opinions in support of the
judgment, have offered only speculation concerning potential effects upon existing
constitutional rights, I must disagree. That said, I agree with President Judge Leavitt
that portions of Petitioners’ arguments appear to rely upon “implicit” effects, rather
than “patent” effects. See League of Women Voters, slip op. at 5 (Leavitt, P.J., mem.
op. in opposition to order announcing the judgment of the Court) (quoting Grimaud,
865 A.2d at 842). Judge Ceisler’s opinion’s reliance upon “implicit” effects is clear
in the portions of its analysis which suggest, for example, that increased litigation
over the scope of the Proposed Amendments will “clog the courts’ dockets, delaying
dispositions and trials,” thus potentially impacting defendants’ constitutional and
rule-based rights to a speedy trial under Article I, Section 9 and Pa.R.Crim.P. 600.
League of Women Voters, slip op. at 18 (Ceisler, J., mem. op. in support of order
announcing the judgment of the Court). Those concerns may be well-founded, but
this is the sort of downstream consequence that, in my view, would be classified as
“implicit,” rather than “patent,” for purposes of the Grimaud standard. Hence, I
must depart from Judge Ceisler’s opinion here as well.
Nonetheless, I cannot agree with President Judge Leavitt’s analysis
either. It appears that President Judge Leavitt would require any potential effect of
the Proposed Amendment to be determined only through real-world application. See
League of Women Voters, slip op. at 6 (Leavitt, P.J, mem. op. in opposition to order
announcing the judgment of the Court) (“[T]he time and place to test the limits of
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the crime victim’s right to ‘privacy and dignity’ is in a real criminal trial, not in an
imagined one that may never happen.”). President Judge Leavitt thus suggests that
all we have before us are “fictional scenarios” that reveal an absence of a “real
controversy” suitable for resolution via a declaratory judgment. Id. at 5. However,
this proposition ignores the fact that we are asked to determine whether the Proposed
Amendment may be added to the Constitution in the first place. By the time that it
could be applied to a “real criminal trial,” it would be too late to answer that question,
because it necessarily would already be part of our Constitution. This theory thus
strikes me as inconsistent with our precedent, in that it would render the Proposed
Amendment effectively immune from challenge.
As discussed above, there is nothing implicit about the effect of the
Proposed Amendment’s right-of-refusal provision upon Article I, Section 9.
Particularly in light of the historical significance of the Article I, Section 9 rights—
first enshrined in Pennsylvania’s original Constitution of 1776—their importance to
the truth-determining process, and their role in protecting individuals from arbitrary
and oppressive government action, I believe that the voters of Pennsylvania were
entitled to separately consider whether they desired to limit these rights alongside
the adoption of the new positive rights contained within the Proposed Amendment.
It may be debatable whether “victims’ rights” is a subject narrow
enough to allow many of the Proposed Amendment’s varying provisions to be
considered in a single vote under Article XI, Section 1.4 Regardless, it is clear to me
4
Given their breadth and the number of different matters that they would touch upon, it
seems to me that the changes sought in the Proposed Amendment would be best effectuated by
calling a constitutional convention—the mechanism through which complex and multi-faceted
changes to the Constitution are to be debated and executed. See Pennsylvania Prison Society v.
Commonwealth, 727 A.2d 632, 634 (Pa. Cmwlth. 1999), rev’d on other grounds, 776 A.2d 971
(Pa. 2001) (plurality) (amendment process “is reserved for simple, straightforward changes to the
(Footnote continued on next page…)
PAM - 8
that, in addition to providing new rights to crime victims, the Proposed Amendment
also would “patently affect” existing rights of the accused under Article I, Section
9. Grimaud, 865 A.2d at 842. This alone means that the Proposed Amendment
encompassed “two or more amendments” that required separate votes. PA. CONST.
art. XI, §1.
Accordingly, I support the judgment of the Court.
PATRICIA A. McCULLOUGH, Judge
Constitution” and “should not be used to circumvent a constitutional convention, the process for
making complex changes to the Constitution”). The Legislature instead chose to pursue the
amendment process, but such amendments must comply with Article XI, Section 1 and its
separate-vote requirement, as expounded in Grimaud.
For many of the same reasons discussed herein, I further agree with Petitioners with regard
to their alternative basis for relief—that the ballot question failed to “fairly, accurately and clearly”
apprise voters of the issue to be voted on. Stander v. Kelley, 250 A.2d 474, 480 (Pa. 1969); see
also Sprague v. Cortes, 145 A.3d 1136, 1142 (Pa. 2016) (Baer, J.) (finding that ballot question
“clearly conveyed the proposed constitutional amendment to the electorate”). Although the ballot
question at issue here summarized numerous features of the Proposed Amendment, Petitioners
highlight that the ballot question made no mention of numerous new rights to be afforded to crime
victims and their families, including the consideration of the safety of a victim’s family in setting
release conditions, the right to be notified of any pretrial disposition of a case, the right to prompt
and final conclusion of cases and post-conviction proceedings, and the right to confer with
attorneys for the government. (Petitioners’ Brief in Support of Application for Summary Relief at
52). Consistent with my discussion of the single-subject inquiry, the difficulty with the Proposed
Amendment is that it simply embraces too many disparate matters to effectively convey its import
to voters within the 75 words mandated by statute. Section 1110(b) of the Pennsylvania Election
Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §3010(b) (“Each question to be voted
on shall appear on the ballot labels, in brief form, of not more than seventy-five words . . . .”). I
thus differ with President Judge Leavitt on this point as well, for I do not believe that “grant[ing]
certain rights to crime victims” is a description sufficient to inform voters of the breadth of
constitutional changes contemplated. League of Women Voters, slip op. at 2-3 n.1 (Leavitt, P.J,
mem. op. in opposition to order announcing the judgment of the Court).
PAM - 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
League of Women Voters of :
Pennsylvania and Lorraine Haw, :
Petitioners :
:
v. : No. 578 M.D. 2019
: Argued: June 10, 2020
Kathy Boockvar, the Acting :
Secretary of the Commonwealth, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION IN OPPOSITION TO ORDER ANNOUNCING
THE JUDGMENT OF THE COURT
BY PRESIDENT JUDGE LEAVITT FILED: January 7, 2021
The League of Women Voters of Pennsylvania and Lorraine Haw
(collectively, League of Women Voters) request a declaratory judgment that the
ballot resolution to expand Article I of the Pennsylvania Constitution to declare a
right in crime victims violates the single amendment requirement of Article XI,
Section 1 of the Pennsylvania Constitution. The League of Women Voters also
requests a permanent injunction to prevent Kathy Boockvar, the Secretary of the
Commonwealth, from tabulating and certifying the votes cast in November 2019
on the proposed amendment. Because the League of Women Voters has proffered
only speculation on how the newly declared right will operate in the future, there is
1
The decision in this case was reached before January 4, 2021, when Judge Leavitt served as
President Judge.
no real controversy before the Court. I would grant summary relief to Secretary
Boockvar and deny summary relief to the League of Women Voters.
With respect to a “Proposal of Amendments by the General Assembly
and their Adoption,” Article XI of the Pennsylvania Constitution states as follows:
Section 1. Amendments to this Constitution may be proposed
in the Senate or House of Representatives; and if the same shall
be agreed to by a majority of the members elected to each
House, such proposed amendment or amendments shall be
entered on their journals with the yeas and nays taken thereon,
and the Secretary of the Commonwealth shall cause the same to
be published three months before the next general election, in at
least two newspapers in every county in which such newspapers
shall be published; and if, in the General Assembly next
afterwards chosen, such proposed amendment or amendments
shall be agreed to by a majority of the members elected to each
House, the Secretary of the Commonwealth shall cause the
same again to be published in the manner aforesaid; and such
proposed amendment or amendments shall be submitted to the
qualified electors of the State in such manner, and at such time
at least three months after being so agreed to by the two
Houses, as the General Assembly shall prescribe; and, if such
amendment or amendments shall be approved by a majority of
those voting thereon, such amendment or amendments shall
become a part of the Constitution; but no amendment or
amendments shall be submitted oftener than once in five years.
When two or more amendments shall be submitted they shall be
voted upon separately.
PA. CONST. art. XI, §1 (emphasis added). The proposed amendment to Article I of
the Pennsylvania Constitution has followed each procedural step set forth above in
Article XI, Section 1 with precision.2 Critical here is the directive that “[w]hen
2
I reject the League of Women Voters’ alternate argument that the ballot question was defective
because it “does not capture all of the components” of the proposed amendment. League of
Women Voters’ Brief in Support of Application for Summary Relief at 52. That is not the
MHL- 2
two or more amendments shall be submitted they shall be voted upon separately.”
Id.
The ballot question voted upon in November of 2019 offered a single
amendment to our Constitution to add a new right to those listed in the
“Declaration of Rights” found in Article I. PA. CONST. art. I. This amendment,
known as “Marsy’s Law,” creates a right in crime victims and does not patently
delete or revise existing provisions in the Pennsylvania Constitution. The League
of Women Voters has not demonstrated otherwise. Instead, it has offered only
hypotheticals on the various ways this newly declared right might impact the rights
of a criminal defendant in some case, in some time and in some place.
In an action under the Declaratory Judgments Act,3 the plaintiff must
present an actual controversy, which is defined as “imminent and inevitable
litigation” initiated by persons with a “direct, substantial and present interest” in
that litigation. Stilp v. Commonwealth, 910 A.2d 775, 782 (Pa. Cmwlth. 2006)
(citing Wagner v. Apollo Gas Company, 582 A.2d 364 (Pa. Super. 1990)). Courts
“resolve conflicts after they arise.” Gibson v. Commonwealth, 415 A.2d 80, 84
(Pa. 1980). It is beyond the jurisdiction of our courts, appellate and original, to
use the Declaratory Judgments Act to issue advisory opinions. See In re
Condemnation by Department of Transportation, 515 A.2d 102, 106 (Pa. Cmwlth.
1986); Sheppard v. Old Heritage Mutual Insurance Company, 414 A.2d 1109,
1114 (Pa. Cmwlth. 1980). Stated otherwise,
standard. Only where the ballot question is so confusing that “voters cannot intelligently express
their intentions” will the court invalidate the ballot question. Oncken v. Ewing, 8 A.2d 402, 404
(Pa. 1939). The ballot question here was clear that the amendment will “grant certain rights to
crime victims ….” Petition for Review, Exhibit A, Ballot Question.
3
42 Pa. C.S. §§7531-7541.
MHL- 3
[a] declaratory judgment must not be employed to determine
rights in anticipation of events which may never occur or for
consideration of moot cases or as a medium for the rendition of
an advisory opinion which may prove to be purely academic.
Gulnac by Gulnac v. South Butler County School District, 587 A.2d 699, 701 (Pa.
1991) (citations omitted) (emphasis added).
Lorraine Haw is “concerned” about how Marsy’s Law will affect her
request for a pardon if, or when, the “victim” of her crime should object to her
request. Petition for Review, ¶¶14, 15. The League of Women Voters repeatedly
posits what “potentially,” “may,” “might,” “could,” or “would” occur to Haw and
others should Secretary Boockvar not be restrained from tabulating and certifying
the votes cast last November. These supposed events may, or may not, take place.
The League of Women Voters states, for example, that an accused’s
right to compulsory process “would be gravely affected” under the proposed
amendment because a victim would have the right to “refuse an interview,
deposition or other discovery request made by the accused or any person acting on
behalf of the accused.” League of Women Voters’ Brief in Support of Application
for Summary Relief at 32-33 (emphasis added) (quotation omitted). This argument
assumes that the defendant will not be able to obtain assistance of the court to
compel discovery needed for a fair criminal trial. In like manner, the League of
Women Voters argues that because the safety of a crime victim may be considered
in fixing the amount of bail and the release conditions for the accused, the
“presumption that a defendant is entitled to pretrial release” is thereby altered. Id.
at 34-35 (emphasis added). Courts have broad discretion “[t]o determine whether
to release a defendant [] and what conditions” to impose on release. PA.R.CRIM.P.
523(A). The Pennsylvania Constitution does not presently prohibit courts from
MHL- 4
considering the safety of a crime victim in making the decision on a criminal
defendant’s pre-trial release.
These examples illustrate why declaratory relief requires “imminent
and inevitable litigation” brought by persons with a “direct, substantial and present
interest” in that litigation. Stilp, 910 A.2d at 782. Instead, the League of Women
Voters offers fictional scenarios that assume how victims will exercise their Article
I right to the disadvantage of criminal defendants and how courts might decide
conflicts between the rights of victims and the rights of criminal defendants.
The League of Women Voters argues that the proposed amendment
“implicitly” amends more than one provision of the Pennsylvania Constitution.
However, our Supreme Court has directed that “merely because an amendment
may possibly impact other provisions does not mean it violates the separate vote
requirement.” Grimaud v. Commonwealth, 865 A.2d 835, 842 (Pa. 2005)
(quotation omitted). Every amendment must have some impact on other provisions
of the Constitution, or it would be surplusage. In Shapp v. National Gettysburg
Battlefield Tower, Inc., 311 A.2d 588 (Pa. 1973), for example, our Supreme Court
observed that the Environmental Rights Amendment, PA. CONST. art. I, §27,
impacted property rights protected by the United States and Pennsylvania
Constitutions. To evaluate a constitutional amendment against Article XI, Section
1,
[t]he test to be applied is not merely whether the amendments
might touch other parts of the Constitution when applied, but
rather, whether the amendments facially affect other parts of the
Constitution. Indeed, it is hard to imagine some amendment
that would not have some arguable effect on another provision;
clearly the framers knew amendments would occur and
provided a means for that to happen. The question is whether a
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single ballot question patently affects other constitutional
provisions, not whether it implicitly has such an effect[.]
Grimaud, 865 A.2d at 842 (emphasis added). Amendments that are “sufficiently
interrelated” may be presented “to the electorate in a single question.” Id. at 841.
The ballot question in Grimaud that proposed to amend the constitutional
requirements on bail did so by amending two provisions of the Constitution that
each related to bail. This ballot question was held valid under Article XI, Section 1
because it was interrelated.
The opinions of Judges Ceisler and McCullough do not undertake an
analysis of the interdependence of the proposed amendment, which is necessary
before it can be concluded that the ballot question required more than a single vote.
In examining the “common-purpose formulation,” we look to whether the parts
“constitute a consistent and workable whole on the general topic embraced.” Id.
Instead of undertaking this analysis, their opinions examine the hypothetical effects
of a crime victim’s right upon a criminal defendant’s right to a fair trial.
Even so, the examples offered by the League of Women Voters to
demonstrate how a crime victim’s rights might impact a criminal defendant’s due
process rights do not withstand close scrutiny. The League of Women Voters
believes, for example, that a victim’s right to “privacy and dignity” may affect the
scope and manner of the criminal defendant’s ability to cross-examine the victim.
First, cross-examination is not presently unbounded but, rather, subject to “the
discretion of the trial court.” Commonwealth v. Skibicki, 586 A.2d 446, 447 (Pa.
Super. 1991). Second, the time and place to test the limits of the crime victim’s
right to “privacy and dignity” is in a real criminal trial, not in an imagined one that
may never happen.
MHL- 6
Because a declaratory judgment should never issue in anticipation of
events that may never occur, I would deny summary relief to the League of
Women Voters. The proposed expansion of Pennsylvania’s Declaration of Rights
to establish a right for crime victims was debated and agreed to “by the two
Houses” before being presented to the electorate for a vote in November of 2019.
PA. CONST. art. XI, §1. The centerpiece of our Declaration of Rights is that “[a]ll
power is inherent in the people.…” PA. CONST. art. I, §2. The judgment the Court
enters today deprives the people of this power on the strength of no more than
speculation. I would allow the process to go forward and grant summary relief to
the Secretary of the Commonwealth.
MARY HANNAH LEAVITT, President Judge
Judge Fizzano Cannon joins in this Memorandum Opinion in Opposition to Order
Announcing the Judgment of the Court.
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