Sen. J. Costa v. Sen. K. Ward & Sen. J. Coleman

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Senator Jay Costa, Senator : CASES CONSOLIDATED

Anthony H. Williams, Senator :

Vincent J. Hughes, Senator Steven J. :

Santarsiero and Senate Democratic :

Caucus, :

Petitioners :

:

v. : No. 310 M.D. 2021

: Argued: September 12, 2022

Senator Kim Ward and Senator :

Jarrett Coleman, :

Respondents :

Commonwealth of Pennsylvania, :

Pennsylvania Department of State, :

and Leigh M. Chapman, Acting :

Secretary of the Commonwealth :

of Pennsylvania, :

Petitioners :

:

v. : No. 322 M.D. 2021

:

Senator Jarrett Coleman, Senator :

Kim Ward and The Pennsylvania :

State Senate Intergovernmental :

Operations Committee, :

Respondents :

Arthur Haywood :

Julie Haywood, :

Petitioners :

:

v. : No. 323 M.D. 2021

:

Leigh M. Chapman :

Acting Secretary of State :

Commonwealth of Pennsylvania, :

Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY SENIOR JUDGE LEAVITT FILED: February 9, 2023

Before the Court are the consolidated petitions for review filed by the

Commonwealth of Pennsylvania, Department of State, and the Acting Secretary of

the Commonwealth, Leigh M. Chapman1 (collectively, Acting Secretary); Senators

Jay Costa, Anthony H. Williams, Vincent J. Hughes, and Steven J. Santarsiero, and

the Senate Democratic Caucus (collectively, Democratic Senators); and Arthur

Haywood and Julie Haywood (collectively, the Haywoods) (collectively,

Petitioners).2 Intervention was granted to the League of Women Voters of

Pennsylvania, Common Cause Pennsylvania, Make the Road Pennsylvania, and

eight registered voters (collectively, Voter Intervenors). Petitioners and Voter

Intervenors challenge a subpoena duces tecum issued on September 15, 2021, by the

Pennsylvania State Senate Intergovernmental Operations Committee (Senate

Committee or Committee) to the Acting Secretary of the Commonwealth, to produce

copies of certain election-related documents and deliver them to the General Counsel

of the Senate Republican Caucus.3 Petitioners and Voter Intervenors seek to enjoin

the subpoena. For the reasons that follow, we dismiss the petitions for review.

1

At the time this matter was initiated, the Acting Secretary was Veronica Degraffenreid, and she

was followed by Acting Secretary Leigh M. Chapman.

2

The Haywoods filed their petition for review against the Acting Secretary. However, they

essentially seek to restrain enforcement of the legislative subpoena.

3

After the 2023-2024 legislative session was convened, a praecipe to substitute certain senator

parties was filed. No party has requested dismissal of the consolidated petitions for review on

grounds of mootness.

2

Background

The Senate Committee’s subpoena duces tecum seeks the production of

17 categories of election-related documents filed with and maintained by the

Department of State. Included therein is a request for a list of all electors who voted

in the November 2020 general election, by county, and the manner of their vote

whether in person, by mail-in ballot, by absentee ballot, or by provisional ballot.

The subpoena requests the same list, in the same format, for the May 2021 primary

election. This requested information is contained in the Statewide Uniform Registry

of Electors (SURE) system, 25 Pa. C.S. §12224 (as identified in what is known as

the Pennsylvania Voter Registration Act, 25 Pa. C.S. §§701-3302). The subpoena

requests a list of voter registration changes made in the SURE system between May

31, 2020, and May 31, 2021, and copies of the Department of State’s audits of the

SURE system between 2018 and 2021. Finally, the subpoena requests a copy of the

certified results for the two elections.

Petitioners and Voter Intervenors seek to enjoin the subpoena because

they believe it does not have a valid legislative purpose. They assert that the Senate

Committee’s true purpose is to challenge the outcome of the 2020 presidential

election, which is a matter conferred exclusively upon the judiciary and governed by

4

The SURE system is a single, uniform, integrated computer system that includes a database of

all registered electors in the Commonwealth. To ensure the integrity and accuracy of all voter

registration records, the SURE system assigns a unique registration number to each individual

registered to vote in the Commonwealth; provides for the electronic transfer of completed voter

registration applications and changes of address; permits the auditing of each registered elector’s

registration record; identifies the election district to which a qualified elector or registered elector

should be assigned; produces reports as required; identifies duplicate voter registrations on a

countywide and statewide basis; identifies registered electors who have been issued absentee

ballots under the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as

amended, 25 P.S. §§2600-3591; and identifies registered electors who vote in an election and the

method by which their ballots were cast. See 25 Pa. C.S. §1222(c).

3

the Election Code.5 Further, because the requested database includes voters’ names,

addresses, dates of birth, driver’s license numbers, and the last four digits of their

social security numbers, compliance with the subpoena may compromise the

informational privacy rights of registered voters that are protected by the

Pennsylvania Constitution.6

More specifically, the Acting Secretary’s injunction petition asserts that

the subpoena duces tecum is invalid and unenforceable because it:

i. Was not issued for a legitimate legislative purpose;

ii. Concerns matters outside the Committee’s subject matter

area;

iii. Was issued without probable cause to seek information in

which Pennsylvanians have a reasonable expectation of

privacy;

iv. Demands information protected by the deliberative

process privilege; and

v. Is overbroad.

Acting Secretary’s Petition for Review, Prayer for Relief at 74. The Democratic

Senators’ injunction petition also asserts that the Senate Committee issued the

subpoena to contest the 2020 general election or to do an election audit, either of

which violates the separation of powers doctrine.7 Further, the requested voter

5

Section 1758 of the Election Code, 25 P.S. §3458, provides that an election outcome can be

contested by filing a petition with the court having jurisdiction over the matter.

6

Article I, section 1 of the Pennsylvania Constitution states that “[a]ll men are born equally free

and independent, and have certain inherent and indefeasible rights, among which are those of

enjoying and defending life and liberty, of acquiring, possessing and protecting property and

reputation, and of pursuing their own happiness.” PA. CONST. art. I, §1. This provision creates a

right to informational privacy.

7

In regard to the concept of separation of powers, our Supreme Court recently stated:

In our Commonwealth, the roots of the separation of powers doctrine run deep. The

delineation of the three branches of government, each with distinct and independent

powers, has been inherent in the structure of Pennsylvania’s government since its

genesis - the constitutional convention of 1776. Indeed for most of our

4

information is protected from public disclosure by the voter’s constitutional right of

informational privacy. Also asserting a right to informational privacy, the

Haywoods seek to enjoin the Acting Secretary from disclosing their voter

registration information contained in the SURE system. Voter Intervenors support

the above-listed injunction petitions on the theory that the subpoena request is

overbroad, is not for a valid legislative purpose, and implicates the informational

privacy rights of the individual Voter Intervenors and the members of the association

intervenors.

Petitioners and Voter Intervenors filed applications for summary relief

requesting an immediate and permanent injunction.8 The Senate Committee

responded with its own application for summary relief, asserting that the

Pennsylvania Constitution permits the legislature to conduct an investigation that

may aid legislators in determining whether, or in what manner, they should consider

amendments to the Election Code. The Senate Committee asserted that the

informational privacy rights of registered voters are not implicated when information

in the possession of the executive branch is shared with another branch of the

Commonwealth government, whether legislative or judicial.

In a memorandum opinion and order filed on January 10, 2022, this

Court denied all the applications for summary relief because the parties did not

Commonwealth’s history, our Court has vigorously maintained separation of the

powers of the branches[.]

Renner v. Court of Common Pleas of Lehigh County, 234 A.3d 411, 420 (Pa. 2020) (internal

citations omitted).

8

Democratic Senators also filed a request for a preliminary injunction. However, that request was

stayed by an agreement of the Senate Committee not to enforce the subpoena while the Court

considered the injunction petitions and the applications for summary relief.

5

establish a clear right to the relief they sought.9 Costa v. Corman (Pa. Cmwlth., No.

310 M.D. 2021, filed January 10, 2022); Pennsylvania Department of State v. Dush

(Pa. Cmwlth., No. 322 M.D. 2021, filed January 10, 2022); Haywood v. Chapman

(Pa. Cmwlth., No. 323 M.D. 2021, filed January 10, 2022) (cases consolidated).

Subsequent to the denial of summary relief, the Court directed the

parties to address three questions: (1) whether the petitions for review were ripe for

review; (2) whether the availability of an adequate remedy at law precludes the

Court’s exercise of equity jurisdiction over a challenge to a legislative subpoena;

and (3) whether the General Assembly’s constitutional enforcement power or the

criminal contempt statute precludes the Court’s exercise of equity jurisdiction.

Court Order, 1/25/2022. Briefs were filed by all parties.

In her brief, the Acting Secretary argues that the matter is ripe for

review because an actual controversy was created by the mere issuance of the

subpoena duces tecum. The General Assembly’s enforcement power exposes the

Acting Secretary to arrest, detention, and criminal sanctions should this Court not

exercise its equity jurisdiction. Democratic Senators, the Haywoods, and Voter

Intervenors echo these arguments. Applying principles developed under the Right-

to-Know Law,10 they argue that the Acting Secretary cannot disclose the voters’

driver license numbers and last four digits of their social security numbers to a third

party without balancing the private informational interest against the public interest

in disclosure. See Pennsylvania State Education Association v. Commonwealth

Department of Community and Economic Development, 148 A.3d 142, 158 (Pa.

9

However, the Court granted the cross-application for summary relief filed by the Senate

Secretary-Parliamentarian Megan Martin. The Court agreed that the Democratic Senators did not

state a claim against her, and, thus, she was dismissed as a named respondent.

10

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

6

2016) (PSEA) (holding that “[t]he right to informational privacy is guaranteed by

[a]rticle I, [s]ection 1 of the Pennsylvania Constitution, and may not be violated

unless outweighed by a public interest favoring disclosure”). Until the Senate

Committee explains how the voter database information relates to potential

legislation, the Acting Secretary cannot do this balancing of public and private

interests, as she must before disclosing this information to a third party, i.e., the

Senate Committee. Democratic Senators, the Haywoods, and Voter Intervenors

observe that the Senate Committee’s enforcement of the subpoena may provide the

Acting Secretary a proceeding in which to raise her constitutional objections to the

subpoena; however, because they have not been issued a subpoena, they are not

guaranteed the opportunity to challenge the subpoena.

The Senate Committee responds that the legislature is not a third party,

as suggested by the Acting Secretary. The General Assembly is the Commonwealth

of Pennsylvania, as is the Secretary of the Commonwealth.11 The subpoena duces

11

As we have explained, the “Commonwealth is a single entity that has organized itself into

agencies and instrumentalities to perform specific functions.” Gillen v. Workers’ Compensation

Appeal Board (Pennsylvania Turnpike Commission), 253 A.3d 362, 370 (Pa. Cmwlth. 2021). In

Lyness v. State Board of Medicine, 605 A.2d 1204, 1209 (Pa. 1992), the Supreme Court noted that

“each administrative board and judge is ultimately a subdivision of a single entity, the

Commonwealth of Pennsylvania.” The Acting Secretary offers no authority for her position that

the Department of State cannot share records it is required by statute to maintain with the

legislative branch of a single entity, the Commonwealth of Pennsylvania, or that this sharing

constitutes “public” disclosure or implicates informational privacy. See also J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 406 (1928) (noting that “our Federal Constitution and state

Constitutions of this country divide the governmental power into three branches . . . [which are]

coordinate parts of one government . . . .”).

Voter Intervenors observe that in Chester Housing Authority v. Polaha, 173 A.3d 1240 (Pa.

Cmwlth. 2017), informational privacy was implicated where a township requested a list of voucher

recipients from the housing authority. This case is inapposite because it does not address two

branches of one government. Rather, a housing authority and a township are separate entities,

each created by the legislature in a separate enactment.

7

tecum was issued under the express authority of the Pennsylvania Constitution and,

as such, bears no relation to a citizen request for information presented to the

Department of State under authority of a statute, i.e., the Right-to-Know Law. The

Senate Committee also questions the sincerity of the informational privacy claim,

noting that one of the Voter Intervenors, the League of Women Voters, subpoenaed

this very same voter registration information in its challenge to the voter

identification law on grounds that the statute would suppress the exercise of the

franchise. See Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012). In that

litigation, this Court directed the Department of State to provide this voter

information in discovery so that the League of Women Voters’ consultant could

prepare an expert report for use in the litigation. Applewhite v. Commonwealth (Pa.

Cmwlth., No. 330 M.D. 2012, filed April 29, 2013) (Simpson, J., single-judge order)

(directing the Department of State to disclose the names, addresses, partial Social

Security numbers, and driver’s license and non-driver’s identification numbers, of

all voters in the SURE system, along with information from the Pennsylvania

Department of Transportation’s database that included date of birth, current address,

county code, sex, and prior name and address).

Nevertheless, the Senate Committee asserts that this Court need not

address the merits of the constitutional arguments raised by Petitioners and Voter

Intervenors at this juncture. There has been no “confrontation,” which is required

in order to have an actual controversy ripe for judicial review. When, and if, the

Senate Committee takes action to enforce its subpoena in accordance with its

constitutional enforcement power, the Acting Secretary then may raise any and all

of her legal and constitutional claims. The civil and criminal contempt statutes also

provide legal remedies that preclude this Court from exercising equity jurisdiction.

8

On September 12, 2022, Petitioners, Voter Intervenors, and the Senate

Committee presented oral argument on the questions raised by this Court’s January

25, 2022, order. Oral argument was heard seriately with Pennsylvania Senate

Intergovernmental Operations Committee v. Pennsylvania Department of State, __

A.3d __ (Pa. Cmwlth., No. 95 M.D. 2022, filed February 9, 2023).

Legislative Subpoena Power

We begin with a review of the principles that govern a legislative

subpoena. This includes a review of the circumstances where the judiciary has

become involved in the enforcement of a legislative subpoena.

“The legislative power of this Commonwealth shall be vested in a

General Assembly, which shall consist of a Senate and a House of Representatives.”

PA. CONST. art. II, §1. “Each House shall have power to determine the rules of its

proceedings and . . . to enforce obedience to its process . . . and shall have all other

powers necessary for the Legislature of a free State.” Id. §11.12

Among the powers “necessary for the Legislature” is the power to

conduct investigations. PA. CONST. art. II, §11. Our Supreme Court has explained

that the legislature’s “power to investigate is an essential corollary of the power to

legislate” and that “[t]he scope of this power of inquiry extends to every proper

12

It reads, in its entirety:

Each House shall have power to determine the rules of its proceedings and punish

its members or other persons for contempt or disorderly behavior in its presence, to

enforce obedience to its process, to protect its members against violence or offers

of bribes or private solicitation, and, with the concurrence of two-thirds, to expel a

member, but not a second time for the same cause, and shall have all other powers

necessary for the Legislature of a free State. A member expelled for corruption

shall not thereafter be eligible to either House, and punishment for contempt or

disorderly behavior shall not bar an indictment for the same offense.

PA. CONST. art. II, §11.

9

subject of legislative action.” Commonwealth ex rel. Carcaci v. Brandamore, 327

A.2d 1, 3 (Pa. 1974) (Brandamore). “It is well established that a function of

legislative committees is to find facts and to make recommendations to the

legislature for remedial legislation and other appropriate action.” Lunderstadt v.

Pennsylvania House of Representatives Select Committee, 519 A.2d 408, 410 (Pa.

1986) (plurality opinion). As our Supreme Court has explained:

The right to investigate in order to acquire factual knowledge

concerning particular subjects which will, or may, aid the

legislators in their efforts to determine if, or in what manner, they

should exercise their powers, is an inherent right of a legislative

body, ancillary to, but distinct from, such powers.

McGinley v. Scott, 164 A.2d 424, 429 (Pa. 1960). Nevertheless, there are limits to

the legislature’s investigations, lest the legislature impermissibly encroach upon a

citizen’s individual freedoms.

In Brandamore, 327 A.2d 1, our Supreme Court considered the appeal

of Angelo J. Carcaci, a lieutenant in the Pennsylvania State Police who refused to

answer questions put to him by a special committee of the House of Representatives

investigating law enforcement agencies in the Commonwealth. The Supreme Court

upheld Carcaci’s conviction for contempt and his commitment until expiration of

the legislative session unless “he should sooner purge himself by testifying before

the committee.” Id. at 2. Accordingly, it affirmed the dismissal of Carcaci’s petition

for a writ of habeas corpus. Finally, the Court rejected Carcaci’s claim that the

subpoena lacked a legislative purpose. After examining the House resolution

authorizing the investigation, the Supreme Court concluded that “[l]aw enforcement

and the administration of justice are public functions” and “proper subjects for

legislative action.” Id. at 4. It also rejected Carcaci’s challenge to his conviction for

10

contempt of the House of Representatives, concluding that it fully comported with

due process.

In obiter dictum, the Supreme Court acknowledged that the

legislature’s broad investigatory powers are subject to “limitations placed by the

Constitution on governmental encroachments on individual freedom and privacy.”

Brandamore, 327 A.2d at 4. With regard to that limitation, the Supreme Court

explained that there must be a “balance between the protection of the rights of the

individual and the avoiding of unnecessary restraint upon the State in the

performance of its legitimate governmental purposes.” Id. (quoting In re

Pennsylvania Crime Commission, 309 A.2d 401, 407 (Pa. 1973)).

For this balancing test, our Supreme Court drew upon the United States

Supreme Court’s holding in Barenblatt v. United States, 360 U.S. 109 (1959), which

reviewed Barenblatt’s contempt conviction for refusing to answer questions about

his participation in Communist Party activities. The United States Supreme Court

acknowledged that where “First Amendment rights are asserted to bar governmental

interrogation, resolution of the issue always involves a balancing by the courts of the

competing private and public interests at stake in the particular circumstances

shown.” Id. at 126. The United States Supreme Court concluded that because the

investigation related to a valid legislative purpose, the witness could be required to

disclose his political and private relationships. It rejected Barenblatt’s contention

that “the true objective of the [c]ommittee” was “exposure,” not legislation,

explaining that “the [j]udiciary lacks authority to intervene on the basis of the

motives which spurred the exercise of the power.” Id. at 132.13 The remedy for “a

13

See also Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“In

determining the legitimacy of congressional [subpoena], we do not look to the motives alleged to

have prompted it.”); Committee on Ways and Means, United States House of Representatives v.

11

wrong motive or purpose” lies “not in the abuse by the judicial authority of its

functions, but in the people[.]” Id. at 132-33. The United States Supreme Court

upheld Barenblatt’s conviction for contempt of Congress.

To be sure, a subpoena can be restrained where it seeks to “investigate

the personal affairs” of the subpoena’s recipient without advancing a legislative

purpose. Annenberg v. Roberts, 2 A.2d 612, 617 (Pa. 1938). In Annenberg, the

subpoena in question was found to effect a warrantless search and seizure in

violation of the Fourth Amendment.14 As such, the commission had unlawfully set

itself up “as a court or grand jury.” Id.

The controversy had its origins in the governor’s convening of a special

session of the General Assembly to consider “[m]aking illegal the use of devices or

methods of transmission of information or advices in furtherance of gambling.” Id.

at 614. The special session enacted the Act of October 11, 1938, P.L. 77, No. 27

(Act 27), which set up a six-person commission to investigate and make

recommendations for improvements in the criminal gambling laws. The statute gave

the commission the power to issue subpoenas and provided for penalties as

“provided by the laws of this Commonwealth in such cases,” without specifying

those laws. Annenberg, 2 A.2d at 615.

United States Department of Treasury, 45 F.4th 324, 333 (D.C. 2022) (Committee on Ways and

Means) (“The mere fact that individual members of Congress may have political motivations as

well as legislative ones is of no moment.”)

14

The Fourth Amendment to the United States Constitution provides that

the right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

U.S. CONST. amend. IV.

12

The plaintiff, John Annenberg, filed a bill of equity in the Court of

Common Pleas of Dauphin County to challenge the constitutionality of Act 27 and

to restrain the subpoena directing him to produce

“all records, including contracts, stock certificates, agreements

of trust, agreements of partnership, ledgers, journals, check-

books, cancelled checks, bank deposit books, pass books,

accounts, evidence of ownership, and memoranda, including

letters, telegrams, messages and memoranda received from, and

copies of letters, telegrams, messages and memoranda sent to”

thirty-eight named individuals, “showing [his] connection with

or interest in, either directly or indirectly, any or all companies,

holding companies, corporations, partnerships or associations,

directly or indirectly, engaged in or having to do with the

dissemination of sporting news in all forms and by any means,

including horse racing results distributed in the State of

Pennsylvania or elsewhere in the United States [or] Canada,

newspapers, racing sheets, dope sheets, form sheets, racing

records and statistics, and particularly with respect to the

following corporations or companies,” naming fifty-two

corporations.

Annenberg, 2 A.2d at 617 (quoting subpoena) (emphasis added). Annenberg argued

that the commission’s investigation into his personal financial affairs could be done

only pursuant to a court-approved search warrant, after a showing of probable cause,

or by a grand jury. Our Supreme Court agreed:

It would seem scarcely necessary to marshal authorities to

establish, as a proposition of constitutional law, that a witness

cannot be compelled, under the guise of a legislative study of

conditions bearing upon proposed legislation, to reveal his

private and personal affairs, except to the extent to which such

disclosure is reasonably required for the general purpose of the

inquiry. To compel an individual to produce evidence, under

penalties if he refuses, is in effect a search and seizure, and,

unless confined to proper limits, violates his constitutional right

to immunity in that regard.

13

Id. (emphasis added).

The Supreme Court rejected Annenberg’s various challenges to the

constitutionality of Act 27. However, it held that the subpoena’s demands for

production of documents violated Annenberg’s rights under the United States and

Pennsylvania Constitutions. Annenberg, 2 A.2d at 619. Citing precedent from other

state appellate courts and the United States Supreme Court, our Supreme Court

explained that individuals are entitled to protection “in the enjoyment of life, liberty

and property and from inquisitions into private affairs.” Id. at 618 (quoting Attorney

General v. Brissenden, 171 N.E. 82, 86 (Mass. 1930)) (emphasis added). The

information requested of Annenberg was found irrelevant to the “matters properly

being inquired into by the commission.” Annenberg, 2 A.2d at 618. Instead, the

court found that “[t]he subpoenas show on their face that they contemplate an

unreasonable search and seizure.” Id. (emphasis added).15 Because the subpoena

duces tecum sought to do the work of a grand jury, it lacked a valid legislative

purpose. Id.

Annenberg concerned a subpoena authorized by statute. However, in

Lunderstadt, 519 A.2d at 413, our Supreme Court applied the Annenberg principles

to a legislative subpoena issued under authority of the Pennsylvania Constitution

because of the importance of “an individual’s interest in maintaining privacy, under

15

In Commonwealth v. Costello, 21 Pa. D. 232 (1912), the Court of Quarter Sessions of the Peace

of Pennsylvania in Philadelphia County dismissed the criminal indictment against an individual

who refused to testify before a Senate committee. “Although the action of the Senate must be

presumed to have had a legitimate object, if it is capable of being so construed, and the court has

no right to assume that the contrary was intended, . . . its resolution, in our opinion, bears on its

face plain indications that when it was adopted the Senate had no proper legislative purpose in

view.” Id. at 234-35 (citation omitted). The court concluded that the Senate had established itself

as an extraordinary tribunal to exercise a judicial function. Further, the committee could not act

after the legislature had adjourned sine die. Id. at 237.

14

the Fourth Amendment and under article I, section 8 of the Pennsylvania

Constitution[.]”16 The Supreme Court warned:

[T]hat legislative investigations may, through inquisitions into

private affairs, assume a character that is of questionable

relevance to legitimate legislative purposes . . . . Indeed, in their

proper realm, legislative committees are not to set themselves up

as courts or as grand juries rather than as entities intended to

investigate and report on conditions for the information of

members of the legislature.

Lunderstadt, 519 A.2d at 413 (emphasis added). Where the legislature intrudes on

“one’s private affairs,” a subpoena cannot issue “except upon a showing of probable

cause that the particular records sought contain evidence of civil or criminal

wrongdoing.” Id. at 414-15. The Supreme Court reversed this Court’s refusal to

quash the subpoena to Carl Lunderstadt, a consultant for the Capitol addition project,

to produce five years of his checking account and personal financial records and

those of his family members. The concurring opinion of Justice Hutchinson would

have quashed the subpoena on another ground:

This resolution does not contain even a hint that the investigation

seeks to determine whether and what new law is needed to

correct abuses in state construction contracts. The function of

this investigating committee is limited to checking compliance

with existing law. That function is reserved to prosecutors,

police and grand juries.

Id. at 416 (Hutchinson, J., concurring) (emphasis added).

16

Article I, section 8 of the Pennsylvania Constitution provides that “the people shall be secure in

their persons, houses, papers and possessions from unreasonable searches and seizures, and no

warrant to search any place or to seize any person or things shall issue without describing them as

nearly as may be, not, without probable cause, supported by oath or affirmation subscribed to by

the affiant.” PA. CONST. art. I, §8.

15

In sum, neither a legislative committee nor a commission established

by statute may set itself up as a grand jury or assume the function of a prosecutor.

Annenberg, 2 A.2d at 617. Any “inquisition” into private affairs will be presumed

to have a “questionable” legislative purpose. Lunderstadt, 519 A.2d at 413.

With these principles in mind, we turn to the question of whether the

Court should exercise its equity jurisdiction to intervene in the Senate Committee’s

subpoena for documents held by the Department of State at this juncture.

Analysis

I.

The first question raised by this Court’s order of January 25, 2022, was

whether the legislative subpoena is ripe for this Court’s review.

“Ripeness has been defined as the presence of an actual controversy; it

requires a court to evaluate the fitness of the issues for judicial determination, as

well as the hardship to the parties of withholding court consideration.” Borough of

Centralia v. Commonwealth, 658 A.2d 840, 842 (Pa. Cmwlth. 1995). “Court rulings

applying the ripeness doctrine are premised on policies of sound jurisprudence;

courts should not give answers to academic questions, render advisory opinions, or

make decisions based on assertions of hypothetical events that might occur in the

future.” Philips Brothers Electrical Contractors, Inc. v. Pennsylvania Turnpike

Commission, 960 A.2d 941, 945 (Pa. Cmwlth. 2008).17 To determine whether a

matter is ripe, the Supreme Court has instructed as follows:

17

In Philips Brothers, a prospective bidder petitioned for this Court’s review of the Turnpike

Commission’s dismissal of its bid protest, which was filed one year prior to the Commission’s

solicitation of bids on a proposed turnpike facility. This Court affirmed the Turnpike Commission.

We held that the prospective bidder could pursue a bid protest in accordance with the timetable set

forth in the Commonwealth Procurement Code, 62 Pa. C.S. §§101-2311, when and if it chooses to

do so. Philips Brothers, 960 A.2d at 946.

16

The factors we consider under our “adequately developed”

inquiry include: whether the claim involves uncertain and

contingent events that may not occur as anticipated or at all; the

amount of fact finding required to resolve the issue; and whether

the parties to the action are sufficiently adverse.

Township of Derry v. Pennsylvania Department of Labor and Industry, 932 A.2d 56,

58 (Pa. 2007) (internal quotation omitted) (emphasis added).

In Department of Environmental Resources v. Marra, 594 A.2d 646

(Pa. 1991), a landowner sought to restrain enforcement of this Court’s injunction

that required him to disclose the location of certain paint solvents and waste removed

from his property, on grounds that the order violated his Fifth Amendment right

against self-incrimination.18 The Supreme Court held that the matter was not ripe

for review, explaining as follows:

In the present case, the Commonwealth has not sought to enforce

its injunction, the lower court has not yet had an opportunity to

hear appellant’s Fifth Amendment claim, and appellant herein

does not risk the imposition of greater sanctions by awaiting the

enforcement proceeding. It is possible that such proceedings will

never be initiated.

Id. at 648 (emphasis added).

In Camiel v. Select Committee on State Contract Practices of House of

Representatives, 324 A.2d 862 (Pa. Cmwlth. 1974), this Court was presented with a

request to quash a legislative subpoena on constitutional grounds. In an en banc

decision, we held that the mere issuance of a legislative subpoena does not create a

controversy that was ripe for review.

18

The Fifth Amendment to the United States Constitution provides, in part, that “[n]o person . . .

shall be compelled in any criminal case to be a witness against himself[.]” U.S. CONST. amend.

V.

17

In Camiel, the Pennsylvania House of Representatives, by resolution,

formed a select committee to

examine, investigate and make a complete study for the purpose

of informing the House of Representatives in the discharge of its

constitutional legislative functions and duties of any and all

matters pertaining to: (1) the administration, activities, methods

of operations, use of appropriations, use of funds and

expenditures thereof, policies, accomplishments and results,

deficiencies or failures, eff(i)ciency and effectiveness of State

agencies responsible for the purchasing, leasing, contracting, and

disposal of Commonwealth supplies, properties and services;

and (2) individuals, corporations, consultants, advisors,

authorities and entities within or outside the Commonwealth,

related to, involved in, or affecting the purchasing, leasing,

construction and disposal of Commonwealth property, supplies

and services[.]

Id. at 864. The select committee issued a subpoena duces tecum to the custodians of

records for the Republican and Democratic county committees of 12 counties in the

Commonwealth. The subpoena issued to Peter J. Camiel, the Chairman of the

Democratic County Executive Committee of Philadelphia County, sought

books, documents, accounts, records, indices, tapes, logs,

ledgers, and any and all other data pertaining to: (a) all

contributions received on or after January 1, 1966 through May

13, 1974, including but not limited to, any monies, goods,

services, or any other thing or things of value by the Democratic

County Executive Committee of Phila[delphia] County or any

other committee, group, or person operating under the authority

of the aforementioned committee; [and] (b) the name and address

of each of said contributors. The date, amount, and method of

payment (cash, check, money order, etc.)[.]

Id. at 864-65 (emphasis added). Camiel filed a petition for review to restrain the

subpoena.

18

Camiel’s petition asserted that the request was so broad and indefinite

that it violated his constitutional rights. Quoting Barenblatt, 360 U.S. at 111-12, we

acknowledged that “[b]road as it is, the power (to investigate) is not, however,

without limitations . . . more particularly [] the relevant limitations in the Bill of

Rights.” Camiel, 324 A.2d at 868. We further acknowledged that “Camiel has

raised real issues which may some day have to be decided by the courts[;]” however,

we concluded “that this case does not yet present a justiciable issue and therefore is

not ripe for a decision on the merits.” Id. at 865. Accordingly, we dismissed the

petition for review.

In so holding, we began with separation of powers, explaining as

follows:

We view this point to be of a very serious nature. If there is any

one principle of constitutional law which supports and protects

our form of government, including all of our constitutional

rights, it is the separation of powers among the three branches of

government. Every crack in this foundation weakens the entire

structure.

Camiel, 324 A.2d at 866. We distinguished a legislative subpoena from a subpoena

issued by a “commission, i.e., a separate entity,” which acts “under specific statutory

authority.” Id. By contrast, in Camiel:

We are asked here to interfere with the legislative process, and

we believe we must question whether we have the jurisdiction

and the power to interfere at this point in the proceedings.

Id. (emphasis added). The “point in the proceedings” considered in Camiel was the

service of the legislative subpoena. However, notwithstanding the service of a

“subpoena duces tecum upon Camiel, [] there has been no confrontation.” Id.

(emphasis added).

19

We reasoned that a citizen must be able to raise constitutional defenses

at the “point in the proceedings when his or her constitutional rights are affected[.]”

Id. at 870. However, “[c]ourts should not decide a citizen’s constitutional rights in

a vacuum.” Id. This is because

we do not know whether the Select Committee will force an issue,

for that is certainly within its discretion. Absent a confrontation

and a record made showing the factual posture of the matter, it is

our position that it is improper for this Court to dispose of all the

potential constitutional issues which might be raised[.]

Id. at 866 (emphasis added). In short, this Court will not decide issues raised by a

legislative subpoena that are capable of being resolved by negotiation and

compromise or change of heart.

In Trump v. Mazars USA, LLP, __ U.S. __, __, 140 S. Ct. 2019, 2030

(2020), the United States Supreme Court observed that historically “congressional

demands for the President’s information have been resolved by the political branches

without involving this Court.” These disputes are “hashed out in the ‘hurly-burly,

the give-and-take of the political process between the legislative and the executive.’”

Id. at __, 140 S. Ct. at 2029. (citation omitted). For example, when a House

subcommittee of the Congress subpoenaed documents from the Department of the

Interior, President Ronald Reagan directed these documents to be withheld because

they involved confidential presidential communications with subordinates. After the

subcommittee voted to hold the Secretary of the Interior in contempt, “an innovative

compromise soon followed.” Id. at __, 140 S. Ct. at 2030. It is this “tradition of

negotiation and compromise without the involvement of [the] court,” id., that largely

informed our Court’s decision in Camiel, 324 A.2d at 866.

In dismissing Camiel’s petition, our Court acknowledged the holding

in Annenberg, 2 A.2d at 618, noting that “a court sitting in equity may restrain public

20

officers to protect a citizen’s constitutional rights after service of a subpoena and

before a confrontation[.]” Camiel, 324 A.2d at 866 (emphasis added). However,

we found Annenberg distinguishable. First, Annenberg involved a subpoena issued

by a “commission, i.e., a separate entity,” not by the legislature. Camiel, 324 A.2d

at 866. Second, Annenberg raised a search and seizure of a citizen’s private financial

records, which was not raised in Camiel.

Federal case law also favors judicial restraint when faced with a

challenge to a Congressional subpoena before confrontation. In In re Motions to

Quash Subpoenas and Vacate Service, 146 F. Supp. 792 (W.D. Pa. 1956), a

subpoena duces tecum was issued to Bessie Steinberg and Allan McNeil to testify

about their activities to end sedition laws. They filed a motion to quash the

subpoenas, and the District Court denied relief, despite the contention that the

subpoenas violated their right of free speech and association.19 In denying the

requested relief, the District Court stated:

We would be naive indeed if we did not recognize the difference

of opinion regarding the subversive investigations of the last few

years. That Congress has the duty to consider remedial

legislation in order to best effectuate our defenses against

subversion is only to state the obvious. That Congress and the

courts should be ever vigilant to protect our individual rights is

no less clear.

***

Here the petitioners are asking for protection against some

danger as yet unknown. They claim a constitutional impairment

not now clear. They presume a limitation of their constitutional

privileges not yet threatened. For us to presume that the House

19

U.S. CONST. amend. I. It states that “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a redress

of grievances.” Id.

21

of Representatives, the body most susceptible to the will of the

people, will be less sensitive to the constitutional rights of the

citizen than will be this Court would authorize a presumption I

am not prepared to accept. This would not be exercising a

judicial prerogative or a judicial restraint, but would in truth be

judicial arrogance[.]

Id. at 795 (emphasis added). The District Court concluded that this request for relief

was premature.

We conclude that, as in Camiel, this matter is not ripe for this Court’s

review because there has been no confrontation. Likewise, the Annenberg

circumstances do not pertain because that case concerned a subpoena issued under

authority of statute and, thus, did not implicate “interference” with “legislative

process.” Camiel, 324 A.2d at 866.20 The Senate Committee has not taken any steps

to enforce its subpoena duces tecum under article II, section 11 of the Pennsylvania

Constitution or to hold the Acting Secretary in contempt. See Marra, 594 A.2d at

648. As the United States District Court aptly observed in In re Motions to Quash

Subpoenas and Vacate Service, 146 F. Supp. at 795, “the petitioners are asking for

protection against some danger as yet unknown.”

II.

Relying principally on Annenberg, 2 A.2d 612, the Acting Secretary

asserts that this Court should exercise its jurisdiction in equity to restrain the Senate

Committee’s subpoena duces tecum. Democratic Senators, the Haywoods, and

Voter Intervenors agree, noting also that they have no other vehicle for advancing

their informational privacy claims. The Senate Committee rejoins that the existence

20

The Annenberg subpoena was issued under authority of a statute by an entity created by statute,

and the Annenberg subpoena effected an “inquisition” into “the private affairs” of the subpoena’s

recipient. By contrast, the Senate Committee’s subpoena has nothing to do with the Acting

Secretary’s private affairs, and it was issued under authority of the Pennsylvania Constitution.

22

of a remedy at law precludes equity jurisdiction. Further, the “manner in which a

legislative body exercises its inherent power to vindicate its authority and processes

must satisfy the requirements of procedural due process.” Brandamore, 327 A.2d at

5. In short, the existence of a legislative process for the enforcement of the Senate

Committee’s enforcement of its subpoena precludes this Court’s exercise of equity

jurisdiction.21

There is a difference between subject matter jurisdiction and equity

jurisdiction, as this Court has explained:

Jurisdiction is the power of a court to enter into an inquiry on a

certain matter . . . . A careful distinction must be made between

subject matter jurisdiction, which we have just defined, and

equity jurisdiction, which describes the remedies available in

equity . . . .

Hence, if there is an adequate non-statutory remedy at

law, equity may withhold its remedies and the matter will be

transferred to the law side[.]

Lashe v. Northern York County School District, 417 A.2d 260, 262 (Pa. Cmwlth.

1980) (citations omitted) (emphasis added). Equity is discretionary with the court

and should be exercised only “where the facts clearly establish the plaintiff’s right

thereto; where no adequate remedy at law exists; and where the chancellor believes

that justice requires it.” Payne v. Clark, 187 A.2d 769, 771 (Pa. 1963) (emphasis

added). “In other words, such a decree is of grace and not of right.” Id. (emphasis

added).

21

On March 11, 2022, the Senate Committee filed a petition for review in the nature of a complaint

in mandamus, which, alternatively, sought this Court’s enforcement of the Senate Committee’s

subpoena. That petition was argued before us, seriately with the present matter, on September 12,

2022, and is addressed in a separate opinion and order at Pennsylvania Senate Intergovernmental

Operations Committee, __ A.3d at __, slip op. at 1-20.

23

In Brown v. Brancato, 184 A. 89, 91 (Pa. 1936), our Supreme Court

held that there was “no doubt of the jurisdiction in equity to entertain the bill”

brought by the directors of charitable trusts in the City of Philadelphia to challenge

a proposed investigation by a committee of the House of Representatives. The Court

explained that

plaintiffs aver that defendants propose, by subpoena duces tecum

to require production of the records, books, accounts, and other

documents of plaintiff directors, to the general disorganization

of their trust administration. Various prayers for restraint were

made. The order dismissing the bill, made by the learned court

below, cannot be sustained.

Id. (emphasis added). There were two reasons for the Supreme Court’s decision to

grant relief in equity to the directors of the Philadelphia charitable trusts.

First, the subject of the bill in equity was charitable trusts. The Supreme

Court explained that “[f]rom the earliest days chancery has exercised jurisdiction

over charitable trusts . . . . Chancery powers over trusts were exercised in this

[C]ommonwealth ‘as part of our own common law’ prior to the [Act of June 16,

1836,] P.L. 784[, repealed by the Act of April 28, 1978, P.L. 202].” Brown, 184 A.

at 91 (citations omitted). The directors of the Philadelphia charitable trusts had the

fiduciary responsibility to preserve trust property with a value of $93 million. The

records and accounts sought to be delivered to the House Committee would create

“general disorganization of their trust administration.” Id. The Supreme Court held

that the directors were “not to be molested” in the exercise of their fiduciary

responsibilities. Id. at 92.

Second, the House Committee’s power to act ended when the

legislature adjourned sine die on June 21, 1935. The legislative action that triggered

the bill in equity occurred after that date. The Supreme Court observed that it was

24

doubtful that the House Committee could act under a resolution that was never

submitted to the Senate. But even if it could, “after the adjournment, the power of

the House complained of in this suit was done once and for all.” Brown, 184 A. at

93. For that reason, the Supreme Court held that the House Committee was “without

lawful authority in the premises.” Id. at 92. The Supreme Court remitted the matter

to the trial court with instructions to issue the injunction.

The Acting Secretary argues that because the Senate Committee has

“the power to issue a warrant for the [Acting] Secretary’s arrest and detention in

Dauphin County prison,” this Court must exercise equity jurisdiction. Acting

Secretary Brief at 15-16. She argues that “a party need not wait to be subject to

contempt proceedings before seeking judicial review.” Id. at 15, 17. Further, the

Senate Committee has refused to narrow or withdraw its subpoena but, rather, has

noted its authority to enforce a subpoena “without recourse to the judiciary.” Id. at

12. Stated otherwise, the Acting Secretary believes that the Committee’s possible

enforcement of the subpoena warrants judicial intervention in equity and in advance

of confrontation. We are not persuaded.

The Pennsylvania Constitution vests the legislature with the power to

enforce its subpoenas. PA. CONST. art. II, §11. The mere existence of this

constitutional enforcement power does not warrant judicial intervention. Rather,

separation of powers requires that the “legislative process” be respected by the

judiciary. Camiel, 324 A.2d at 865.

Further, due process does not require that a “finding of contempt must

be made in a judicial forum.” Brandamore, 327 A.2d at 4. To the contrary,

[t]he power of the Houses of the General Assembly to vindicate

their authority and processes by punishing acts of contempt

committed in their presence is inherent in the legislative function.

25

Id. (emphasis added). In Brandamore, our Supreme Court concluded that the House

of Representatives had properly followed the procedures in Section 1 of the Act of

June 13, 1842, P.L. 491, 46 P.S. §61, in holding Carcaci in contempt. To be sure,

“the manner in which a legislative body exercises its inherent power to vindicate its

authority and processes must satisfy the requirements of procedural due process.”

Brandamore, 327 A.2d at 5. The Supreme Court concluded Carcaci received the

process he was due from the House of Representatives.

In short, in the event the Acting Secretary chooses not to produce the

voter registration information and in the event the Senate Committee chooses to

exercise its constitutional enforcement powers, the Acting Secretary will be able to

raise constitutional arguments in a proceeding that must provide due process.

Brandamore, 327 A.2d at 5. That proceeding could be brought under the

legislature’s constitutional enforcement powers, in accordance with the contempt

statutes. See 46 P.S. §61; 18 Pa. C.S. §5110.22

The dissent argues that there is an “interbranch conflict” presented in

this case that supports judicial intervention before confrontation. It believes that any

legislative subpoena issued to an executive branch agency should be reviewed by

the judiciary, using the principles announced in Mazars, __ U.S. __, 140 S. Ct. 2019.

Mazars involved four House subpoenas seeking personal financial

information from President Donald J. Trump and his children and affiliated

businesses, including his accounting firm, Mazars USA, LLP. The United States

Supreme Court concluded that this intrusion into the “personal affairs” of a sitting

22

“A person is guilty of a misdemeanor of the third degree if he is disorderly or contemptuous in

the presence of either branch of the General Assembly, or if he neglects or refuses to appear in the

presence of either of such branches after having been duly served with a subpoena to so appear.”

18 Pa. C.S. §5110.

26

President required limits. Cf. Annenberg, 2 A.2d 612; Lunderstadt, 519 A.2d 408.

Under these limits, courts must do a careful assessment of (1) whether the

subpoena’s “legislative purpose warrants the significant step of involving the

President and his papers;” (2) whether the subpoena is “no broader than necessary

to support Congress’ legislative objective;” (3) whether the subpoena for the

President’s information clearly “advances a valid legislative purpose;” and (4) the

extent of “the burdens imposed on the President by a subpoena.” Mazars, __ U.S.

at __, 140 S. Ct. at 2035-36. Mazars is inapposite.

First, “the Mazars test was created with a sitting President in mind.”

Committee on Ways and Means, 45 F.4th at 335 (applying Mazars test to a request

of committee chairman for tax returns of President Donald J. Trump submitted under

authority of a Federal statute and authorizing the release of the tax returns to

Congress). Mazars addressed the potential for an “unnecessary intrusion into the

operation of the Office of the President,” Mazars, __ U.S. at __, 140 S. Ct. at 2036,

caused by subpoenas seeking over a decade of personal financial information from

a period of time that predated his presidency. It was the burden of production that

created the “interbranch conflict,” which was particular to the President, who “is the

only person who alone composes a branch of government.” Id. at __, 140 S. Ct. at

2034 (emphasis added).

Second, Mazars acknowledged, throughout, that the courts “have a duty

of care that we not needlessly disturb the compromises and working arrangements”

of the two political branches. Id. at __, 140 S. Ct. at 2031. The principle of

separation of powers requires the courts to show the “respect due the coordinate

branches of government.” Baker v. Carr, 369 U.S. 186, 217 (1962). It was this

27

same concern that led our Court in Camiel to conclude that it should not become

involved prematurely in the enforcement of a legislative subpoena.

Third, Mazars’ four-part test does not fit the Senate Committee’s

subpoena. This subpoena does not seek personal financial information from the

President (or even the Governor), let alone present a request so broad in scope that

mere compliance interferes with “the operation of the Office of the President.”

Mazars, __ U.S. at __, 140 S. Ct. at 2036.23 Only where such considerations pertain

does Mazars require Congress to explain “why the President’s information will

advance its consideration of possible legislation.” Id.

Here, unlike Mazars, we address a legislative subpoena issued to a state

agency for government records, not a request of Pennsylvania’s chief executive for

his personal papers. Rather than apply Mazars’ holding to the particular

circumstance for which it was devised, the dissent would require judicial review and

approval of every legislative subpoena issued to a state agency before the legislature

can expect compliance with its subpoena. This turns separation of powers on its

head by making the legislative process subordinate to the judiciary. This is contrary

to “the respect due a coordinate branch of government.” Baker, 369 U.S. at 217.

23

Ironically, Annenberg, 2 A.2d 612, and Lunderstadt, 519 A.2d 408, are more protective of

personal financial information than is Mazars, and they protect any citizen, not just the President

or Governor. The dissent in Mazars would limit Congressional subpoenas for personal financial

information to its impeachment powers and not allow such inquiries for the purpose of preparing

and proposing legislation. “I would hold that Congress has no power to issue a legislative

subpoena for private, nonofficial documents – whether they belong to the President or not.”

Mazars, __ U.S. at __, 140 S. Ct. at 2047 (Thomas, J., dissenting).

28

Each branch, including the judiciary, must take care not “to exceed the outer limits

of its power.” I.N.S. v. Chudha, 462 U.S. 919, 951 (1983).24

In Pennsylvania jurisprudence, the circumstances that have authorized

judicial intervention in a legislative subpoena have been exceptional and rare. It

must be apparent from the face of the subpoena, or the authorizing legislative

resolution, that there is not “even a hint that the investigation” has a legislative

purpose. Lunderstadt, 519 A.2d at 416 (Hutchinson, J., concurring). Judicial

intervention may be appropriate where the legislative committee lacks any power to

act because the legislature had adjourned before the committee acted. Brown, 184

A. at 92. Equity can be invoked to restrain legislative subpoenas that show “on their

24

The dissent cites the Montana Supreme Court’s decision in McLaughlin v. Montana State

Legislature, 493 P.3d 980 (Mont. 2021), for its summation of federal law on the role of the

judiciary and interpretation of Mazars. Out-of-state decisions may be cited, at most, for their

persuasive authority. Shedden v. Anadarko E&P Company, L.P., 88 A.3d 228, 233 n.3 (Pa. Super.

2014). However, McLaughlin is inapposite.

In McLaughlin, the Montana Supreme Court quashed legislative subpoenas demanding

four months of all emails between the Court Administrator for the Montana Judicial Branch and

state judges and justices, as well as the production of state-owned computers and telephones used

to communicate with justices on legislation or other matters that could come before Montana

courts for a decision. The Montana Supreme Court held that an in camera review was needed to

“balance competing privacy and security interests” in advance of production. McLaughlin, 493

P.3d at 983. The concurring opinion observed that “separation of powers does not tolerate the

control, interference or intimidation of one branch of government by another.” Id. at 997

(McKinnon, J., concurring). The concurrence argued that the subpoena was issued to investigate

“purported judicial misconduct” and “expose violation by judges, if not the entire judicial branch

of ethical codes, state law and state policy . . . .” Id. at 1002. As such, the legislature’s investigation

was “incongruous to Montana’s Constitution and the constitutionally created method for

addressing the discipline and removal of judges for misconduct.” Id.

By contrast, here, no party asserts that an inference of intimidation can be drawn from the

Senate Committee’s subpoena. Further, to make Pennsylvania’s legislative process subordinate to

the judiciary is incongruous with separation of powers under our Constitution, as construed by our

Supreme Court in Brandamore, 327 A.2d 1. See also Camiel, 324 A.2d at 866.

29

face that they contemplate an unreasonable search and seizure” in violation of the

Fourth Amendment. Annenberg, 2 A.2d at 618. Unlike informational privacy,

which can be waived by the government where that privacy interest is outweighed

by the public interest in disclosure, PSEA, 148 A.3d at 158, the government can

never waive a citizen’s immunity against an unlawful search and seizure. Only the

citizen has that power. This is not a Fourth Amendment case, and neither Petitioners

nor Voter Intervenors so claim.

This Court cannot assume that the Senate Committee will not be

mindful of the informational privacy interests of registered voters:

For us to presume that the House of Representatives, the body

most susceptible to the will of the people, will be less sensitive to

the constitutional rights of the citizen than will be this Court

would authorize a presumption I am not prepared to accept. This

would not be exercising a judicial prerogative or a judicial

restraint, but would in truth be judicial arrogance[.]

In re Motions to Quash Subpoenas and Vacate Service, 146 F. Supp. at 795

(emphasis added). The same may be said here.25 To assume that the Pennsylvania

Senate, a body more susceptible to the will of the people than our appellate courts,

will have less sensitivity to the informational privacy interests of registered voters

“would in truth be judicial arrogance.” Id.

The subpoena issued by the Senate Committee does not inquire into the

Acting Secretary’s private and personal affairs or in any way compromise her Fourth

Amendment right. The subpoena does not interfere with the Acting Secretary’s

duties, as agency head, with respect to the Department’s administration of the SURE

system because the Senate Committee seeks copies, not original documents. In

25

Notably, the Senate Committee’s subpoena directed delivery of the documents to counsel, not

to the entire Committee. This measure demonstrates “sensitivity” to the information privacy rights

of voter information in the SURE system.

30

Brown, 184 A. at 91, by contrast, the House Committee sought the original

accounting ledgers and records from the directors of the charitable trusts thereby

creating “general disorganization of their trust administration.” Finally, the Acting

Secretary does not contend that the Senate Committee issued its subpoena after the

legislature had adjourned sine die, i.e., that it lacked “lawful authority in the

premises.” Id. at 92.

Democratic Senators, the Haywoods, and Voter Intervenors assert that

they lack a remedy to challenge the legislative subpoena.26 However, the private

parties may request intervention in whatever enforcement proceeding is undertaken

by the Senate Committee, should the matter not be “hashed out in the hurly-burly,

the give-and-take of the political process between the legislative and the executive.”

Mazars, __ U.S. at __, 140 S.Ct. at 2029. Democratic Senators will participate in

that “hurly-burly” process and in the enforcement proceeding should one ever take

place.

More to the point, it is the SURE system that has created the risk of

exposure of the voter registration information that they seek to protect. 25 Pa. C.S.

§1222(c)(5) (permitting “each commission and the department to have instant access

to a commission’s registration records maintained in the system”). Further,

“[r]ecords of a registration commission” may “be inspected during ordinary business

hours[.]” 25 Pa. C.S. §1207(a)(1)-(b). Likewise, county election commissions shall

prepare street lists for “all registered electors” in each election district for both

26

The dissent cites Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143 (Pa. 2017), in

support of its opinion. Reese is inapposite. Reese involved a private party’s record request under

authority of statute, i.e., the Right-to-Know Law. This matter concerns the legislature’s request

for records under authority of our Constitution. Notably, public disclosure of records that

implicate informational privacy will be allowed “where the public interest favor[s] disclosure.”

PSEA, 148 A.3d at 158.

31

political bodies and candidates. 25 Pa. C.S. §1403(a)-(c). It is the SURE system

that exposes Democratic Senators, the Haywoods, and Voter Intervenors to

disclosure of their voter registration information.27 The SURE system can be

accessed by any number of county and state employees, as well as the third-party

private consultants engaged by the Department of State and by county commissions

that from time to time use that database of voter information.28 Equity is the vehicle

for challenging the constitutionality of a statute that does not sufficiently protect

informational privacy. See, e.g., Lynch v. Owen J. Roberts School District, 244 A.2d

1, 3 (Pa. 1968); Annenberg, 2 A.2d 617 (challenging constitutionality of Act 27 that

created the commission to study gambling). However, Democratic Senators, the

Haywoods, and Voter Intervenors do not challenge the constitutionality of any

disclosure provision in the Election Code.

The Acting Secretary has been served in her official capacity as

custodian of government records within the Department of State, which is a creature

of the legislature. See Section 801 of The Administrative Code of 1929, Act of April

9, 1929, P.L. 177, as amended, 71 P.S. § 271. The Department has been established

to serve as a repository of documents, from corporate charters to professional

licenses as well as election-related materials, which are the subject of the subpoena.

See also Section 802 of The Administrative Code of 1929, 71 P.S. §272 (establishing

duty in Department of State to furnish records that a legislative committee may

27

Both Democratic Senators and Voter Intervenors had the very same opportunity to make these

arguments and participated in argument before the Court in the Committee’s enforcement attempt,

as addressed in Pennsylvania Senate Intergovernmental Operations Committee, __ A.3d at __, slip

op. at 5.

28

Likewise, the Pennsylvania Department of Transportation, the Social Security Administration,

and the Internal Revenue Service hold this personal information of registered voters, which is

accessed by employees and agents of those government agencies.

32

request from time to time).29 A legislative subpoena for government records is not

measured by Annenberg or Lunderstadt, which address requests for private financial

documents.

The Senate Committee cannot set up itself as a court of law to set aside

certified election results.30 Commonwealth v. Costello, 21 Pa. D. 232, 237 (1912).

Nor can the Senate Committee set up itself as a grand jury or prosecutor. Annenberg,

2 A.2d at 617. However, it cannot be inferred from the face of the Committee’s

subpoena for election-related records that its investigation lacks even a “hint” of a

legislative purpose but only a law enforcement purpose. Lunderstadt, 519 A.2d at

416 (Hutchinson, J., concurring). Indeed, the Committee’s subpoena “must be

presumed to have had a legitimate object, if it is capable of being so construed, and

the court has no right to assume that the contrary was intended[.]” Costello, 21 Pa.

D. at 234-35. Finally, the Senate Committee did not issue the subpoena after the

29

Section 802 of The Administrative Code of 1929 provides, in pertinent part, as follows:

The Department of State shall have the power and its duty shall be:

(a) To permit any committee of either branch of the General Assembly to inspect

and examine the books, papers, records, and accounts, filed in the department, and

to furnish such copies or abstracts therefrom, as may from time to time be required;

(b) To furnish to any person, upon request and the payment of such charges as may

be required and fixed by law, certificates of matters of public record in the

department, or certified copies of public papers or documents on file therein.

71 P.S. §272 (emphasis added).

30

Relying on statements of individual Senators, Petitioners and Voter Intervenors assert that the

true motive of the Senate Committee is a “concerted effort to cast doubt on the results of the 2020

presidential election[.]” Acting Secretary’s Petition for Review, ¶140. However, “the Judiciary

lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”

Barenblatt, 360 U.S. at 132 (cited with approval in Brandamore, 327 A.2d at 4). See also United

States v. O’Brien, 391 U.S. 367, 383 (1968) (inquiries into legislative motives “are a hazardous

matter”).

33

legislature’s adjournment, at a time when it was “without lawful authority in the

premises.” Brown, 184 A. at 92.

The exceptional circumstances that warrant the exercise of equity

jurisdiction to restrain a legislative subpoena before confrontation are not present in

this case. When, and if, the Senate Committee chooses to enforce the subpoena

duces tecum, the Acting Secretary can be heard and her concerns addressed in a

proceeding that must conform to due process. Brandamore, 327 A.2d at 5. If the

Senate Committee’s enforcement proceeding does not provide the Acting Secretary

due process, that is the “point in the proceeding” at which to involve the judiciary.

Camiel, 324 A.2d at 866.

Conclusion

We are asked to interfere with legislative process. As this Court has

explained,

[i]f there is any one principle of constitutional law which

supports and protects our form of government, including all of

our constitutional rights, it is separation of powers among the

three branches of government. Every crack in this foundation

weakens the entire structure.

34

Camiel, 324 A.2d at 866. When it comes to the legislature’s enforcement of its

process, our Supreme Court has directed that “[a] proper respect for the limits of the

judicial function and the doctrine of separation of powers dictates that we leave

matters to the legislature.” Brandamore, 327 A.2d at 4. Consistent with Camiel and

in respect of the separation of powers, we decline to exercise this Court’s equity

jurisdiction to restrain enforcement of the Senate Committee’s subpoena in advance

of confrontation. Judicial intervention at this juncture may only “needlessly disturb

the compromises and working arrangements” of the political branches. Mazars, __

U.S. at __, 140 S.Ct. at 2031. Accordingly, the consolidated petitions for review

challenging the subpoena duces tecum issued by the Senate Committee, and seeking

declaratory and injunctive relief, are dismissed.

____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita

Judge McCullough, Judge Covey, Judge Fizzano Cannon and Judge Wallace did not

participate in the decision in this case.

35

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Senator Jay Costa, Senator : CASES CONSOLIDATED

Anthony H. Williams, Senator :

Vincent J. Hughes, Senator Steven J. :

Santarsiero and Senate Democratic :

Caucus, :

Petitioners :

:

v. : No. 310 M.D. 2021

:

Senator Kim Ward and Senator :

Jarrett Coleman, :

Respondents :

Commonwealth of Pennsylvania, :

Pennsylvania Department of State, :

and Leigh M. Chapman, Acting :

Secretary of the Commonwealth :

of Pennsylvania, :

Petitioners :

:

v. : No. 322 M.D. 2021

:

Senator Jarrett Coleman, Senator :

Kim Ward and The Pennsylvania :

State Senate Intergovernmental :

Operations Committee, :

Respondents :

Arthur Haywood :

Julie Haywood, :

Petitioners :

:

v. : No. 323 M.D. 2021

:

Leigh M. Chapman :

Acting Secretary of State :

Commonwealth of Pennsylvania, :

Respondent :

ORDER

AND NOW, this 9th day of February, 2023, the petitions for review

filed in the above-captioned consolidated matters are DISMISSED.

____________________________________________

MARY HANNAH LEAVITT, President Judge Emerita

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Senator Jay Costa, Senator :

Anthony H. Williams, Senator :

Vincent J. Hughes, Senator :

Steven J. Santarsiero and Senate :

Democratic Caucus, :

Petitioners :

:

v. : No. 310 M.D. 2021

:

Senator Kim Ward and Senator :

Jarrett Coleman, :

Respondents :

Commonwealth of Pennsylvania, :

Pennsylvania Department of State, :

and Leigh M. Chapman, Acting :

Secretary of the Commonwealth :

of Pennsylvania, :

Petitioners :

:

v. : No. 322 M.D. 2021

:

Senator Jarrett Coleman, Senator Kim :

Ward and The Pennsylvania State :

Senate Intergovernmental Operations :

Committee, :

Respondents :

Arthur Haywood :

Julie Haywood, :

Petitioners :

:

v. : No. 323 M.D. 2021

: Argued: September 12, 2022

Leigh M. Chapman :

Acting Secretary of State :

Commonwealth of Pennsylvania, :

Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

DISSENTING OPINION

BY JUDGE WOJCIK FILED: February 9, 2023

I dissent.

As noted by the Majority, subsequent to our denial of the parties’

applications for summary relief in the above-captioned cases, we directed them to

address three questions for disposition herein: (1) whether the petitions for review

(PFRs) are ripe for review; (2) whether the availability of an adequate remedy at law

precludes this Court’s exercise of equity jurisdiction1 over a challenge to the

1

In the PFRs filed in these matters, the parties invoke our authority under the Declaratory

Judgments Act (DJA), 42 Pa. C.S. §§7531-7541. As this Court has explained:

Petitions for declaratory judgments are governed by the

provisions of the [DJA]. Although the [DJA] is to be liberally

construed, one limitation on a court’s ability to issue a declaratory

judgment is that the issues involved must be ripe for judicial

determination, meaning that there must be the presence of an actual

case or controversy. Thus, the [DJA] requires a petition praying for

declaratory relief to state an actual controversy between the

petitioner and the named respondent.

Declaratory judgments are not obtainable as a matter of

right. Rather, whether a court should exercise jurisdiction over a

declaratory judgment proceeding is a matter of sound judicial

discretion. Thus, the granting of a petition for a declaratory

judgment is a matter lying within the sound discretion of a court of

original jurisdiction. As the Pennsylvania Supreme Court has

stated:

The presence of antagonistic claims indicating

imminent and inevitable litigation coupled with a

(Footnote continued on next page…)

MHW-2

legislative subpoena; and (3) whether the General Assembly’s enforcement power

or the criminal contempt statute preclude this Court’s exercise of equity jurisdiction.

See Court Order, 1/25/2022. I firmly believe that the Majority has incorrectly

answered each of the foregoing questions, and the Majority’s attempt to distinguish

precedent establishing a contrary conclusion is unavailing.

clear manifestation that the declaration sought will

be of practical help in ending the controversy are

essential to the granting of relief by way of

declaratory judgment. . . .

Only where there is a real controversy may a

party obtain a declaratory judgment.

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.

Brouillette v. Wolf, 213 A.3d 341, 357-58 (Pa. Cmwlth. 2019) (citations omitted). In addition, “an

action seeking declaratory judgment is not an optional substitute for established or available

remedies and should not be granted where a more appropriate remedy is available.” Pittsburgh

Palisades Park, LLC v. Pennsylvania State Horse Racing Commission, 844 A.2d 62, 67 (Pa.

Cmwlth. 2004) (citation omitted). Nevertheless, as outlined below, this Court’s consideration of

the merits of the instant PFRs in our original jurisdiction is the most appropriate remedy for

consideration of the claims raised herein. See, e.g., Commonwealth ex rel. Carcaci v. Brandamore,

327 A.2d 1, 5 n.4 (Pa. 1974) (“Had [the state trooper] wished to challenge the constitutionality of

the committee’s investigation without risking a contempt citation before the bar of the House,

judicial recourse would have been available to him. Injunctive relief from the activities of the

committee could have been sought in a court of equity. See McGinley v. Scott, [164 A.2d 424 (Pa.

1960)]; Annenberg v. Roberts, [2 A.2d 612 (Pa. 1938)].”); see also Camiel v. Select Committee on

State Contract Practices of House of Representatives, 324 A.2d 862, 866 (Pa. Cmwlth. 1974) (“As

was held in [Annenberg], a court sitting in equity may restrain public officers to protect a citizen’s

constitutional rights after service of a subpoena and before a confrontation; but the action before

us is not in equity.”).

MHW-3

Although not cited by the Majority, the United States Supreme Court

has squarely addressed the role of the judiciary where, as here, there is a challenge

to an interbranch legislative subpoena that is directed to another separate and coequal

branch of government. In McLaughlin v. Montana State Legislature, 493 P.3d 980,

985-86 (Mont. 2021), the Montana Supreme Court2 recently summarized the

relevant United States Supreme Court precedent as follows:

The legislative branch is not a law enforcement

agency; its inquiry “must be related to, and in furtherance

of, a legitimate task of the [Legislature].” Watkins [v.

United States, 354 U.S. 178, 187 (1957)]. To serve a

“valid legislative purpose,” the subpoena “must ‘concern[]

a subject on which legislation “could be had.”’ [Trump v.]

Mazars [USA, LLP, 140 S. Ct. 2019, 2031 (2020)]

(quoting Eastland v. [United States] Servicemen’s Fund,

421 U.S. 491, 506 [(1975)]). “The investigatory power of

a legislative body is limited to obtaining information on

matters that fall within its proper field of legislative

action.” [P. Mason, Manual of Legislative Procedure],

§797.7 at 567 [(2020)]. “Investigations conducted solely

for the personal aggrandizement of the investigators or to

‘punish’ those investigated are indefensible.” Watkins,

2

In McLaughlin, the Court Administrator for the Montana Judicial Branch initiated an

original proceeding in the Montana Supreme Court seeking to quash and permanently enjoin a

series of interbranch legislative subpoenas issued by the Montana Legislature to obtain a number

of items including the Court Administrator’s and another judicial branch employee’s emails, and

a poll of the members of a judicial organization that the Court Administrator had facilitated relating

to a bill that was then pending before the Legislature. See McLaughlin, 493 P.3d at 983-84.

Relevant to our discussion herein is the court’s summary of United States Supreme Court

precedent controlling a court’s consideration in an original action seeking to quash an interbranch

legislative subpoena, as outlined above. See, e.g., Commonwealth v. Stilp, 905 A.2d 918, 940-44

(Pa. 2006) (citing relevant United States Supreme Court and Illinois Supreme Court precedent

while considering the separation of powers doctrine with respect to the constitutional protection

against diminishing judicial compensation); see also Delaware Valley Landscape Stone, Inc. v.

RRQ, LLC, 284 A.3d 459, 463 n.5 (Pa. Super. 2022) (“This Court may rely on the decisions of

other states for persuasive authority. See Hill v. Slippery Rock Univ[ersity], 138 A.3d 673, 679

n.3 (Pa. Super. 2016) (noting that ‘the decisions of other states are not binding authority for this

Court, although they may be persuasive’ (citation omitted))”).

MHW-4

354 U.S. at 178[.] And “‘there is no congressional power

to expose for the sake of exposure.’” Mazars, 140 S. Ct.

at 2032 (quoting Watkins, 354 U.S. at 200[]).

In Mazars, the Court examined Congressional

subpoenas seeking the President’s information under the

lens of separation of powers, announcing a non-exhaustive

series of safeguards—in contrast to the generally

applicable presumption stated in McGrain [v. Daugherty,

273 U.S. 135 (1927)]—when the legislative subpoena

authority is directed at another branch of government.

“First, courts should carefully assess whether the asserted

legislative purpose warrants the significant step” of

issuing the subpoena, because “occasion[s] for

constitutional confrontation between the two branches

should be avoided whenever possible.” Mazars, 140 S. Ct.

at 2035 (citation, internal quotations omitted). In this

regard, the legislative body may not compel information

from a coequal branch of government “if other sources

could reasonably provide” the information necessary for

“its particular legislative objective.” Mazars, 140 S. Ct. at

2035-36.

Second, “to narrow the scope of possible conflict

between the branches,” the subpoena must be “no broader

than reasonably necessary to support [the] legislative

objective.” Mazars, 140 S. Ct. at 2036.

Third, courts must examine the asserted legislative

purpose and the “nature of the evidence offered by

Congress to establish that a subpoena advances a valid

legislative purpose.” Mazars, 140 S. Ct. at 2036. The

legislative body must “adequately identif[y] its aims and

explai[n] why the [requested] information will advance its

consideration of the possible legislation.” Mazars, 140

S. Ct. at 2036. “[D]etailed and substantial . . . evidence of

. . . legislative purpose” is “particularly” important when

the legislative body “contemplates legislation that raises

sensitive constitutional issues, such as legislation

concerning the Presidency” or—in this case—the

Judiciary. Mazars, 140 S. Ct. at 2036.

MHW-5

Finally, in the context of considering the burden an

interbranch subpoena imposes, courts must “carefully

scrutinize[]” such subpoenas, “for they stem from a rival

political branch” with “incentives to use subpoenas for

institutional advantage.” Mazars, 140 S. Ct. at 2036.[3]

The Majority’s attempt to limit the application of a Mazars analysis to

a legislative subpoena directed to obtain the personal papers of an executive branch

official is simply incorrect. As indicated, in McLaughlin, the legislative subpoena

was directed to judicial branch officials to obtain records maintained by that separate

and coequal branch in the furtherance of its governmental function. Likewise, the

records sought herein relate to the private information of the more than 9,000,000

registered electors of this Commonwealth that are maintained by the Acting

Secretary of State as part of her governmental function.

The Majority’s reliance on Camiel v. Select Committee on State

Contract Practices of House of Representatives, 324 A.2d 862 (Pa. Cmwlth. 1974),

is simply misplaced because that case did not involve an interbranch legislative

3

In McLaughlin, after conducting the foregoing analysis, the court ultimately held:

Acknowledging the Legislature’s authority to obtain

information in the exercise of its legislative functions under the

Montana Constitution, we conclude that the subpoenas in question

are impermissibly overbroad and exceed the scope of legislative

authority because they seek information not related to a valid

legislative purpose, information that is confidential by law, and

information in which third parties have a constitutionally protected

individual privacy interest. We hold further that, if the Legislature

subpoenas records from a state officer like the Court Administrator

auxiliary to its legislative function, whether those records be in

electronic or other form, a Montana court—not the Legislature—

must conduct any needed in camera review and balance competing

privacy and security interests to determine whether records should

be redacted prior to disclosure.

McLaughlin, 493 P.3d at 983.

MHW-6

subpoena such as the one at issue in the above-captioned matters.4 Moreover,

Camiel does not support judicial abdication as the Majority suggests because, unlike

this case, Camiel was not an action seeking equitable relief. See Camiel, 324 A.2d

at 866 (“As was held in Annenberg v. Roberts, [2 A.2d 612 (Pa. 1938)], a court

sitting in equity may restrain public officers to protect a citizen’s constitutional rights

after service of a subpoena and before a confrontation; but the action before us is not

in equity.”). Thus, regardless of the standard to be applied herein, i.e., either a

Mazars analysis or the “materiality” analysis set forth in Lunderstadt v.

Pennsylvania House of Representatives Select Committee, 519 A.2d 408 (Pa. 1986),5

judicial intervention is appropriate at this point and we need not wait until a further

“confrontation” occurs.

Furthermore, where, as here, an interbranch legislative subpoena seeks

the Acting Secretary of State’s records containing constitutionally protected private

and confidential information, the legislative necessity for the records’ release must

be weighed against the constitutional right to informational privacy. Indeed, as the

Pennsylvania Supreme Court has observed:

4

Equally troubling is the Majority’s citation to the single-judge order in Applewhite v.

Commonwealth (Pa. Cmwlth., No. 330 M.D. 2012, order filed April 29, 2013), to support the

disclosure of this constitutionally protected private and confidential information that predates the

Pennsylvania Supreme Court’s opinion in Pennsylvania State Education Association v.

Department of Community and Economic Development, 148 A.3d 142 (Pa. 2016).

5

See Lunderstadt, 519 A.2d at 414 (“[W]e believe that the views of Mr. Justice Holmes

[in Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 305-07 (1924),] are

persuasive insofar as they reflect a need to protect individuals from ‘fishing expeditions,’ and,

likewise, to the extent that a requirement as to the ‘materiality’ of subpoenaed records should be

imposed. Such protections for privacy interests can, however, be afforded under the Pennsylvania

Constitution.”); see also Annenberg, 2 A.2d at 617-18 (“[I]t is uniformly held that a legislative

body is not invested with any general power to inquire into private affairs and to compel

disclosures but only with such limited right of inquiry as is pertinent to the obtaining of information

upon which proposed legislation is to be based.”).

MHW-7

In [Pennsylvania State Education Association v.

Department of Community and Economic Development,

148 A.3d 142 (Pa. 2016) (PSEA)], this Court examined

Pennsylvania’s constitutional protections for

informational privacy and the scope of the “personal

security” exception in [S]ection [] 708 of the [Right-to-

Know Law (RTKL).6] Reviewing numerous prior

decisions of both this Court and our intermediate appellate

courts, we reaffirmed that the citizens of this

Commonwealth, pursuant to [a]rticle I, [s]ection 1 of the

Pennsylvania Constitution,[7] have a right to informational

privacy, namely the right of an individual to control access

to, and dissemination of, personal information about

himself or herself. PSEA, 148 A.3d at 150. Accordingly,

we ruled that before the government may release

personal information, it must first conduct a balancing

test to determine whether the right of informational

privacy outweighs the public’s interest in dissemination.

Id. at 144. In so ruling, we were clear that while this

balancing test has typically been located in the “personal

security” exemption of the [predecessor to the RTKL, (and

later in the RTKL)], it is not a statutory, but rather a

constitutional requirement, and it is required even in the

absence of any statutory requirement. Id. at 156. As

such, the PSEA balancing test is applicable to all

government disclosures of personal information,

including those not mandated by the RTKL or another

statute.

Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017)

(emphasis added). Thus, any purported statutory requirement that the Acting

6

Act of February 14, 2008, P.L. 6, 65 P.S. §67.708.

7

Pa. Const. art. I, §1. Article I, section 1 states:

All men are born equally free and independent, and have certain

inherent and indefeasible rights, among which are those of enjoying

and defending life and liberty, of acquiring, possessing and

protecting property and reputation, and of pursuing their own

happiness.

MHW-8

Secretary must release all of the requested records pursuant to Section 1 of the Act

of March 12, 1791,8 or Section 802(a) of The Administrative Code of 19299 must be

balanced against the constitutional privacy rights that the over 9,000,000 electors

have in their personal information contained in the Acting Secretary’s records. Id.10

In light of the foregoing, and contrary to the Majority’s conclusions, I

am convinced that (1) the PFRs are ripe for review because the interbranch conflict

between the executive and legislative branches of our Commonwealth government

precipitated by the Senate Committee’s subpoena remains extant; (2) the availability

of an adequate remedy at law via participation or intervention in an enforcement

proceeding does not preclude this Court’s exercise of equity jurisdiction over a

challenge to the legislative subpoena; and (3) the General Assembly’s enforcement

8

Act of March 12, 1791, 3 Sm.L. 8, 71 P.S. §801. Section 1 states, in relevant part, that

“[t]he books, papers and accounts of the [S]ecretary [of the Commonwealth] shall be open to the

inspection and examination of committees of each branch of the legislature, and [the S]ecretary

shall furnish such copies, or abstracts, therefrom, as may from time to time be required.”

9

Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §272(a). Section 802(a) states, in

pertinent part, that “[t]he Department of State shall . . . permit any committee of either branch of

the General Assembly to inspect and examine the books, papers, records, and accounts, filed in

the [Department of State], and to furnish such copies or abstracts therefrom, as may from time to

time be required[.]”

10

Both the Pennsylvania Supreme Court and the Pennsylvania General Assembly have

recognized that some of the information requested by the interbranch legislative subpoena

constitutes the protected, private, personal information of the Commonwealth’s registered electors.

See, e.g., Pa. R.J.A. 509(b)(2) (“All financial records are accessible to the public except . . . any

part of a record setting forth a person’s social security number, home address, home telephone

number, date of birth, operator’s license number, e-mail address, or other personal

information[.]”); Section 708(b)(6)(i)(A) of the RTKL, 65 P.S. §67.708(b)(6)(i)(A) (“Except as

provided in subsections (c) and (d), the following are exempt from access by a requester under this

act: . . . The following personal identification information: . . . A record containing all or part of a

person’s Social Security number, driver’s license number, personal financial information, home,

cellular or personal telephone numbers, personal e-mail addresses, employee number or other

confidential personal identification number.”).

MHW-9

power or the criminal contempt statute does not preclude this Court’s exercise of

equity jurisdiction. In sum, contrary to the Majority, I would not abdicate this

Court’s constitutional and statutory responsibility11 to review the merits of the

constitutional and statutory claims raised in the instant PFRs as a separate

independent and coequal branch of this Commonwealth’s government.

Finally, and quite importantly, I firmly believe that the instant matter

should be considered, and disposed of, by an en banc panel of the commissioned

judges of this Court. As it has been explained:

11

Indeed, as the McLaughlin Court explained:

The Supreme Court’s decisions on Congressional subpoenas make

clear that the courts have a role regardless of the office or the

government stature of the subject to whom the subpoena pertains.

[See, e.]g., Mazars, 140 S. Ct. at 2035 (“[S]eparation of powers

concerns are no less palpable here simply because the subpoenas

were issued to third parties. Congressional demands for the

President’s information present an interbranch conflict no matter

where the information is held.”). The Mazars Court harkened the

two-century tradition of the political branches “resolv[ing]

information disputes using the wide variety of means that the

Constitution puts at their disposal.” Mazars, 140 S. Ct. at 2035. But

it did so in preface to its prescription of the “balanced approach” the

courts must take when the branches reach impasse, accounting for

“both the significant legislative interests of Congress and the

‘unique position’ of [in that case] the President.” Mazars, 140 S. Ct.

at 2035. The “practice of the government” to avoid such

interbranch confrontation informs the courts’ consideration of the

controversy but does not abrogate their obligation to decide it.

Although the Mazars Court examined Congressional subpoenas to

the Executive, its articulated “balanced approach” extends logically

to subpoenas to the judicial branch, which raise similar “interbranch

confrontation” concerns.

McLaughlin, 493 P.3d at 987-88 (emphasis added).

MHW-10

Cases assigned to an en banc court for argument and

decision will generally involve:

1. Substantial questions of federal or state

constitutional law;

2. Substantial questions of state-wide importance;

3. Substantial questions of first impression involving

statutory or regulatory interpretation; and

4. The possibility of overruling Commonwealth Court

precedent.

G. Darlington, K. McKeon, D. Schuckers, K. Brown, & P. Cawley, Pennsylvania

Appellate Practice §3103:6 (West 2022-2023 ed.) (footnotes omitted); see also

Pa. R.A.P. 2543 (“Reargument before an appellate court is not a matter of right, but

of sound judicial discretion, and reargument will be allowed only when there are

compelling reasons therefor.”); Gajkowski v. International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of America, 548 A.2d 533, 535

(Pa. 1988) (“In Dozer Agency, Inc. v. Rosenberg, [246 A.2d 330, 331 (Pa. 1968)],

the Court filed an opinion on March 22, 1966, and remanded for a re-evaluation of

damages. A petition for reargument was timely filed and denied. ‘Sometime

thereafter, this Court, sua sponte determined that reargument should be held limited

to the question of the adequacy of the damages awarded by the court below and such

reargument was held.’”); Charles v. Giant Eagle Markets, 510 A.2d 350 (Pa. 1986)

(“[T]he Court, sua sponte, orders that the above matter be reargued during the

September 1986 Session in Pittsburgh.”); Farnell v. Winterloch Corporation, 527

A.2d 204, 205 (Pa. Cmwlth. 1987) (“Argument on this case was held before a panel

. . . in December of 1985. We sua sponte ordered reargument before the court en

banc which was held in December of 1986. The matter is now ready for our

disposition.”); Alliston v. City of Allentown, 455 A.2d 239, 240 n.2 (Pa. Cmwlth.

MHW-11

1983) (“This case was originally argued before a panel but was set down for

reargument before the court en banc in September 1982 because of the important

issue presented in this appeal.”); Bern Township Authority v. Hartman, 451 A.2d

567, 568 (Pa. Cmwlth. 1982) (“This case has been reargued before the court en banc

because it poses these two important questions . . . .”). Because the disposition of

these cases involves substantial fundamental constitutional and statutory questions,

they should be resolved by an en banc panel of the commissioned judges of this

Court.

Accordingly, as outlined above, the above-captioned matters should be

reargued before, and disposed of by, an en banc panel of the commissioned judges

of this Court. In the alternative, on the merits, unlike the Majority, I would not deny

and dismiss the PFRs filed in these cases.

MICHAEL H. WOJCIK, Judge

MHW-12