This Week at the Pennsylvania Supreme Court

By Matthew Haverstick

This blog is the inaugural post in a series of commentaries about recent decisions from the Pennsylvania Supreme Court. As a regular practitioner in the Court, my experience with it has been uniformly positive. The Court is staffed with smart jurists who each have their own jurisprudence. With the advent of three new justices, it’s a particularly interesting time in the Court’s history.

Perhaps lost in the shuffle of yesterday’s Supreme Court rulings impacting casinos in Philadelphia was a ruling that will have a potential far-reaching impact for state government. In Markham et al. v. Wolf et al. (Appeal of Scarnati), 59 & 60 MAP 2015, Supreme Court dealt a blow to legislative standing by denying the Senate Majority Caucus standing to challenge an executive order promulgated by the Governor.

Markham involves Executive Order 2015-05, which allegedly provided “organizational labor rights” to home health care workers in violation of state labor laws. Several directly-effected parties sued, and the Senate Majority Caucus moved to intervene in support of the petitioners challenging the executive order. Governor Wolf opposed the Senators’ intervention, maintaining the Senators did not have standing.

The issue decided yesterday was limited to the Senators’ right to intervene in the case. Contrary to the argument that legislative standing was satisfied because Executive Order 2015-05 undercut the legislators’ exclusive powers to enact laws, the Court believed that the Senators’ grievance was more in line with a general complaint about the illegality of the Governor’s conduct, and therefore the executive order process did not invade the legislative prerogative such that the Senators had standing to sue.

Given that Executive Order 2015-05, as alleged by the petitioners, looks like an attempt by the executive branch to “legislate” around existing statutory commands, it’s difficult to see how the General Assembly’s unique legislative powers were not directly implicated in this case. Whether the Court will further restrict intervention efforts by the legislative and executive branches, in spite of potential separation of powers concerns, remains to be seen.