THE PENNSYLVANIA SUPREME COURT GOOFED IN UPHOLDING ACT 71 (The Citizens Lose Again!!)

In an editorial from July 24, 2005, the Lancaster Sunday News called the decision of the Pennsylvania Supreme Court on a constitutional challenge of Act 71 a "partial victory," because they restored local zoning control, with respect to the placing of gambling establishments in the Commonwealth. However there is little or NO cause for the citizens of Pennsylvania to be celebrating.

The problem here is that the State's High Court left the remainder of Act 71 intact--A Law which I believe, save one exception, is wholly unconstitutional. Through a strict application of the Constitution of the Commonwealth of Pennsylvania, this commentary will explain why I believe this is so.

Under Article III §1—“No Law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.” QUESTION #1-- Was House Bill 2330 so amended during its consideration by the General Assembly, in such a way that its original purpose was changed, in violation of Article III §1 of the Pennsylvania Constitution? The answer to me seems quite obvious, because in its original form HB 2330 provided for the duties of the Pennsylvania State Police “regarding criminal history background reports for persons participating in harness or horse racing,” and as such was two pages in length. Article III §1 of the Pennsylvania Constitution was clearly violated, because during its consideration, HB 2330 was extensively amended by the State Senate on July 1, 2004 to provide for casino-style gambling in the Commonwealth of Pennsylvania. The Legislation also established the Pennsylvania Gaming Control Board, providing for its powers and duties, conferred powers and duties on a variety of existing State Agencies, including the Pennsylvania State Police, and made an appropriation for the administration and execution of this Law, should it be passed by the General Assembly and subsequently signed by the Governor. The amended version of HB 2330 was then approximately 145-pages in length.

Article III §3 provides that “No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.”

QUESTION #2—Did House Bill 2330 contain more than one subject, in violation of Article III §3 of the Pennsylvania Constitution? §3 is clearly violated, because there are no less than 7 separate topics contained in the Preamble of HB 2330, which could easily be addressed in individual pieces of legislation. For example:

1. Authorizing certain racetrack and other gaming

2. Providing for regulation of gaming licensees
3. Establishing and providing for powers and duties of the Pennsylvania Gaming Control Board
4. Conferring powers and imposing duties on the Department of Revenue, the Department of Health, the Office of Attorney General, the Pennsylvania State Police and the Liquor Control Board
5. Establishing the State Gaming Fund, the Pennsylvania Race Horse Development Fund, the Pennsylvania Gaming Economic Development and Tourism Fund, the compulsive Problem Gambling Treatment Fund and the Property Tax Relief Fund
6. Repealing inconsistent Acts
7. Appropriation of State Funds for the Administration of the Act

The provisions for enforcement and imposition of penalties for violations of the Act are not considered separate issues.

Article III §4 provides that “Every bill shall be considered on three different days in each House.” Here is where the debate becomes somewhat convoluted, because this is the only area, in my judgment where the legislation passes constitutional muster. In its original form HB 2330 was considered on three separate days in the House, on March 16, 2004, March 17, 2004 and March 22, 2004 when it received final passage by a vote of 138-56, and was considered by the State Senate on March 23, 2004, March 29, 2004 and July 1, 2004, however, prior to receiving final passage by the State Senate, the bill was extensively amended and was subsequently passed by a vote of 30-20. Although the constitutional requirement was met here, it is clear that following the insertion of the “gambling” language public hearings were warranted in order to determine the full range of ramifications and implications such activity would have on the Commonwealth of Pennsylvania, and its citizens.

The final constitutional provision to be explored is Article III §10 which provides “All bills raising revenue shall originate in the House of Representatives, but the Senate may propose amendments as in other bills.” QUESTION #3—Did House Bill 2330 raise revenues for the administration and enforcement of the “Pennsylvania Race Horse Development and Gaming Act,” in violation of Article III §10 of the Pennsylvania Constitution? This is perhaps the most glaring constitutional deficiency contained in the legislation, because the total amount of $31.6 million dollars was appropriated, by the State Senate, in clear violation of §10, under Chapter 19 of the Legislation to the Pennsylvania State Police, the Department of Revenue, and the Pennsylvania Gaming Control Board for the administration and enforcement of the Act subsequent to its enactment by the General Assembly and being signed into Law by the Governor.

With the exception of Article III §4 relating to the consideration of bills, the constitutional deficiencies of House Bill 2330 are clear and convincing, and the failure of the State Supreme Court to recognize them is most disturbing, and I’m afraid that the ramifications of this Legislation will be felt for many years to come. In the final analysis, the only winners in this battle is the gambling industry, because it most certainly is not the citizens of the Commonwealth of Pennsylvania.