Commonwealth v. Sessoms

PAPADAKOS, Justice, concurring.

I join with the majority because I understand the majority opinion to say that the Sentencing Guidelines were adopted unconstitutionally because of the lack of presentment to the Governor. I also agree with the mandate of remand for resentencing pursuant to the remaining valid provisions of the Sentencing Code. I do not view the Court's decision today as inviting or requiring a review of all sentences heretofore imposed with consideration of the now-found invalid Sentencing Guidelines. These guidelines have been, after all, mere guides to more appropriate sentences and *381 not mandatory locks on judicial discretion. The Sentencing Code, devoid of the Sentencing Guidelines, forms an adequate foundation to support sentences heretofore imposed by the judiciary.

I write separately to express my disquietude with the apparent approbation accorded to the concept of “legislative agency” in the majority opinion. It is commonly understood that the relationships of the three branches of American government with each other are defined by the principles of separation of powers and checks and balances. The broad purposes of these principles include the dispersal of governmental authority to prevent absolutism and the allocation of each function to the branch best suited to perform it. See, Bruff, Presidential Power and Administrative Rule Making, 88 Yale L.J. 451 (1979). Rigid separation of powers to the extent that effective government becomes impossible is not required:

The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d. 659 (1976).

Modern administrative agencies, on both the state and Federal levels, that have developed since before the New Deal usually combine legislative, executive and judicial functions under one roof. Such agencies are often collectively referred to as the “Fourth Branch” of government. See, Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Columbia L.R. 573 (1984). The relationship of the fourth branch to the other three branches is not spelled out in any detail in the Federal Constitution or in our own Pennsylvania Constitution. As Professor Strauss points out about the Federal Constitution:

*382 The text and structure of the Constitution impose few limits on Congress’s ability to structure administrative government. One scanning the Constitution for a sense of the overall structure of the federal government is immediately struck by its silences. Save for some aspects of the legislative process, it says little about how those it names as necessary elements of government-Congress, President, and Supreme Court-will perform their functions, and it says almost nothing at all about the unelected officials who, even in 1789, would necessarily perform the bulk of the government’s work.

Strauss, supra, at 597.

The same general comments could be made as well about the Pennsylvania Constitution. Nonetheless, because of the inherent concept of separation of powers, and the path of historical development, some bright lines can be established. An administrative agency that carries out public business directly affecting or regulating individual citizens must have some significant official relationship, however tenuous in certain respects, with each of the three constitutional branches. Each of those three branches must have some degree of oversight function in order to pass constitutional muster.

Judicial oversight occurs in the form of judicial review, ranging from limited review to extensive de novo review. The Courts, both state and Federal, will determine whether rules and regulations were adopted in a procedurally proper fashion and in conformity with substantive legislative standards. Moreover, courts must determine whether enforcement activities were carried out correctly. As well, courts regularly review quasi-judicial decisions for errors of law or abuse of discretion.

Executive oversight has occurred most frequently in the forms of appointment and removal. In spite of the growth of a professional bureaucracy and civil service protection, it is clear that a President or a governor can hire, or fire, top level policy making administrators. Even with respect to so-called “independent” agencies or commissions, the execu *383 tive branch has some input and authority because of the right to appoint, which is usually coupled to a limited right of removal. See, Humphrey’s Executor v. United States, 295 U.S. 602 , 55 S.Ct. 869 , 79 L.Ed. 1611 (1935).

In Buckley v. Valeo, supra, the United States Supreme Court held that any “significant governmental duty exercised pursuant to a public law” must be performed by an “Officer of the United States” who is appointed by the President or the head of a department pursuant to Art. II, § 2, cl. 2, 424 U.S. at 140-141 , 96 S.Ct. at 692 . Recent attempts by the President to exercise oversight authority over federal agency rulemaking and the adoption of specific agency regulations and policies, however, has provoked both widespread comment as well as judicial approval. See, e.g., Sierra Club v. Costle, 657 F.2d 298 , (D.C.Cir.1981); Bruff, Legislative Formality, Administrative Rationality, 63 Texas L.R. 207 (1984); Shane, Presidential Regulatory Oversight and the Separation of Powers: The Constitutionality of Executive Order No. 12,291, 23 Arizona L.R. 1235 (1981).

The degree of executive oversight permitted with respect to the Sentencing Commission, at issue here, appears to be perilously close to being non-existent and hence is Constitutionally defective. The governor was permitted to appoint only three of the eleven members of the Sentencing Commission, while the Commission’s final guidelines were not subjected to gubernatorial veto or approval. In my judgment, the role of the Executive branch was too limited in relation to the composition and operation of the Sentencing Commission.

If executive branch oversight was too limited here, that defect in and of itself might not be constitutionally fatal. Concurrently, however, legislative oversight has not been confined within proper channels. Article III, § 17, of our state Constitution expressly permits the legislature to appoint legislative officers and employees. Secretarial assistants, support staffs, and investigating personnel certainly may be hired and employed to carry out distinctly legisla *384 tive functions. If constituting such a staff or hiring such employees is what is meant by constitutionally creating a “legislative agency,” there would be no quarrel with the concept, although such staffs or “agencies” may still operate only with Constitutional limits. See our recent decision in Lunderstadt v. Pennsylvania House of Representatives, 513 Pa. 236 , 519 A.2d 408 (1986). The Sentencing Commission, however, is not such an entity.

This Court has routinely held, contrary to a more liberal approach often permitted on the Federal level, that legislative power cannot be delegated; that legislation must contain adequate standards to guide and restrain the exercise of delegated administrative functions, including rule making; and that to avoid pure delegation of legislative power by creation of an administrative agency, the Legislature must set limits on such an agency’s power and enjoin on it a certain course of procedure and rules of decision in performance of its function. Chartiers Valley Joint Schools v. County Board of School Directors of Allegheny County, 418 Pa. 520 , 211 A.2d 487 (1965); Holgate Brothers Co. v. Bashore, 331 Pa. 255 , 200 A. 672 , 117 A.L.R. 639 (1938). Here the Sentencing Commission has been impermissibly allowed to make law, subject only to a legislative veto, and with no presentment to the governor.

While such a “legislative agency” might be valid if created by the British Parliament, subject only to supervision by the cabinet or the Prime Minister, such a system is not permitted under American law. Legislative oversight of an administrative agency may take place through the enactment of statutory guidelines and standards, establishment of rules of administrative procedure, use of legislative committees and sub-committees both in the annual appropriation process and for the purpose of considering whether further guidance through legislation may be needed, through constituent casework engaged in by individual legislators who informally investigate constituent grievances, or some combination of all of these. See, generally, Robinson, Gellhorn and Bruff, The Administrative Process, 3d. *385 ed (West Publishing Co., 1986), ch. 2. The so-called “legislative agency” which the Legislature attempted to create here, however, improperly delegates legislative power to an agency, subject only to a legislative veto which is not an appropriate form in which to mold legislative oversight, particularly when oversight by the executive branch is negligible. For these reasons, I believe that it is misleading to suggest the possibility of a “legislative agency” as such.