Commonwealth v. Goodman

SPAETH, President Judge,

concurring and dissenting:

I join in the majority’s conclusion, and in the reasoning supporting it, that in investigating appellee the Attorney General exceeded the authority granted to him by the Commonwealth Attorneys Act, 71 P.S. § 732-101 et seq. But I cannot join in the majority’s conclusion that we have no power to remedy the Attorney General’s violation of law. In Commonwealth v. Mason, 507 Pa. 396 , 490 A.2d 421 (1985), our Supreme Court prescribed the following test to enable a court to determine when suppression of evidence is an appropriate sanction for a violation of law:

It is only where the violation ... implicates fundamental constitutional concerns, is conducted in bad-faith, or has substantially prejudiced the defendant....”

Commonwealth v. Mason, supra, 507 Pa. at 406 , 490 A.2d at 426 .

Here, the Attorney General’s violation of the Commonwealth Attorneys Act not only “implicates fundamental constitutional concerns;” it implicates the “great question” of constitutional law: When the people, either of the United States or of a State, delegate authority to a constitutional officer, whether to the President, an Attorney General, or other, what “practical security” can be provided against a transgression of that authority? Here, except suppression, no practical security can be provided. The order of the trial court should therefore be affirmed.

The classical statement of the fundamental constitutional concern implicated in this case is by Madison in The Federalist Papers:

*432 It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be solved.

The Federalist No. 48, at 308 (J. Madison) (Clinton Rossi-ter, ed. 1961).

The great problem was solved in Marbury v. Madison, 5 U.S. (1 Cranch) 138 , 2 L.Ed. 60 (1803):

That the people have an original right to establish, for their future government such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.

*433 Id. at 176-77 (MARSHALL, C.J.).

The task of determining whether the legislature has transgressed the limited powers delegated to it by the people belongs to the judiciary, for “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id. at 177 . Finding that the legislature had transgressed its limited powers, by enacting an act providing that the Supreme Court should have the power to issue writs of mandamus, the Court declared the act unconstitutional and therefore of no effect.

The principle established by Marbury v. Madison is of course applicable not only to the legislature but equally to the executive. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952), the President of the United States had ordered his Secretary of Commerce, Charles Sawyer, to seize several steel mills. The seizure was not based on any statutory or other Congressional authorization but on asserted necessity: the nation was at war, and the seizure was to avert a strike that threatened to cripple steel production. In these circumstances, the government argued, “presidential power should be implied from the aggregate of his powers under the Constitution.” Id. at 587 , 72 S.Ct. at 866 . The Court nevertheless held the seizure invalid. Justice BLACK, writing for the Court, stated the issue as follows: “We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills.” Id. at 582 , 72 S.Ct. at 864 . In holding that the President was not acting within his constitutional power, Justice BLACK rejected the concept of “implied” or “inherent” powers, and reaffirmed the strictly limited nature of the powers of the executive: “The President’s power ... to issue the order must stem either from an act of Congress or from the Constitution itself.” Id. at 585 , 72 S.Ct. at 866 . Justices FRANKFURTER, DOUGLAS, JACKSON, AND BURTON agreed, and in separate concurring opinions expressed their reasons why they *434 found the President’s act beyond his limited powers. 1 For our purposes, the opinion of Justice JACKSON is especially pertinent.

The exercise of executive authority, Justice JACKSON said, occurs in three cases: (1) where the executive officer acts pursuant to statutory authority; (2) where the officer acts in the absence of statutory authority; and (3) where the officer acts in a sphere in which the legislature has determined that the officer is not to act. In the first case, the constitutional authority of the executive officer is at its fullest, for the officer’s act is authorized by all the power that the people have delegated-to both the legislative and executive branches. In the second case, the authority of the officer depends solely upon the power delegated to the executive. In the third case, which Justice JACKSON believed to be the case in Youngstown, the authority of the officer is at its “lowest ebb”, for in such a case the power delegated by the people to the legislature must be subtracted from that delegated to the executive. Id. at 635-37 , 72 S.Ct. at 870-71 (JACKSON, J., concurring)

The present case falls squarely within Justice JACKSON’S third category. The Attorney General is one of five constitutionally provided statewide elected executive officers. 2 As a constitutional officer, the Attorney General has *435 no inherent or implied powers; his powers are limited to those delegated to him by the people. In creating the office of Attorney General, the people of the Commonwealth provided that the Attorney General “shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.” Pa. Const. Art. 4, § 4.1 (emphasis added). Pursuant to this provision, the legislature has defined the particular powers that may be exercised by the Attorney General. 71 P.S. §§ 732-201 to 208. Those particular powers, therefore, are the powers “imposed by law” on the Attorney General; they are the only powers that the Attorney General may constitutionally exercise. (To be sure, the legislature may from time to time alter those powers. In that event, the only powers the Attorney General will be able to exercise will be as altered.) The majority has concluded, and I agree, that here, in investigating appellee, the Attorney General transgressed the limited powers conferred upon him. He thereby acted unlawfully, precisely to the same degree as the Congress acted unlawfully in providing that the Supreme Court should have the power to issue writs of mandamus, Marbury v. Madison, supra, and as the President acted unlawfully in ordering his Secretary of Commerce to seize the steel mills, Youngstown Sheet & Tube Co. v. Sawyer, supra. Since the Attorney General’s unlawful investigation of appellee thus “implicates fundamental constitutional concerns”, the results of the investigation should be suppressed. Commonwealth v. Mason, supra. For to condemn an act while withholding any remedy is to permit the act. And yet, that is what the majority has done; without suppression of its results, the investigation of appellee, while unlawful, will have achieved its intended result.

With our decision today, one is left to ask, as the Chief Justice asked in Marbury v. Madison: “To what purpose”, then, did the people of the Commonwealth limit the power of the Attorney General? “[I]f th[o]se limits may, at any *436 time, be passed by those intended to be restrained... [t]he distinction between a government with limited and unlimited power is abolished----” Id. at 177. Surely, we have failed to heed Justice JACKSON’s words:

The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. supra at 655, 72 S.Ct. at 880 (JACKSON, J., concurring) (footnote omitted). 3

The order of the trial court suppressing the results of the Attorney General’s illegal investigation should be affirmed.

. Justice CLARK, while holding the President’s act illegal, did not believe that the President lacked "inherent power" under the Constitution to act in emergency situations. In his view, however, if Congress provided procedures to be followed in a given situation, the President was required to follow those procedures. Justice CLARK found that in the case before the Court, Congress had provided such procedures, specifically, in the Selective Service Act of 1948, which authorized the President to seize plants that failed to produce goods required by the armed forces.

. A "constitutional officer” is "the incumbent of an office expressly recognized in the Constitution.” Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 110 , 232 A.2d 729, 734 (1967). The other four constitutionally provided statewide elected executive officers are the Governor, the Lieutenant Governor, the Auditor General, and the State Treasurer. Pa. Const., Art. 4, §§ 1, 2, 4, 4.1, 18. The Constitution also provides that the Superintendent of Public Instruction shall be an officer of the executive branch, id. § 1, but the Superintendent, or Secretary of Education, is an appointed officer, id. § 8(a).

. The authority relied on by the majority is inapposite. In United States v. Harrington, 681 F.2d 612 (9th Cir.1982), the issue was the applicable remedy where officers of the United States Customs Service — not a constitutional officer like the Attorney General — went beyond the authority vested in them by an Executive Reorganization Plan. Similarly, in United States v. Giordano, 416 U.S. 505 , 94 S.Ct. 1820 , 40 L.Ed.2d 341 (1974), the official in question was a subordinate of the Attorney General who had wrongfully arrogated to himself powers vested by the statute in his superior. There was no violation of law by the superior.