Capitol Notebook
Could two lines of text in the Pa. Constitution be the magic bullet that kills that shady NRA gun law? Maybe: Analysis by John L. Micek
John L. Micek | jmicek@pennlive.com
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Could two lines of text in the Pennsylvania constitution be ... and forgive me the pun here ... the magic bullet that topples a controversial new law giving the National Rifle Association and others broad powers to sue municipal governments with gun ordinances that are tougher than state law?
That's the hope of a coalition of local and state officials who filed suit in Commonwealth Court this week.
And according to legal analysts, they might actually be onto something by employing what's known as the "single-subject rule" in the Constitution in their court challenge.
Here it is, straight from Article III, Section 3 of the document: "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 of compiling the law or a part thereof."
Seems pretty straightforward, right? It only stands to reason that a bill dealing with guns should actually, y'know, deal with guns, right?
If only it were that simple.
That's because the bill that lawmakers passed in the waning hours of last month's legislative session, and then kicked over to Gov. Tom Corbett for his signature, at first didn't have anything to do with guns at all.
The language was, in fact, amended into a bill sponsored by Rep. Daryl Metcalfe, R-Butler (whose head must be spinning at the dissonance here) that was originally intended to crack down on people who steal ... copper wire and other "secondary metals."
Metcalfe introduced his legislation, which created a penalty for the theft of secondary metals, in 2012.
By the time it hit Corbett's desk two years later, lawmakers had shoehorned in the NRA language, as well as language requiring the Pennsylvania State Police to "send existing mental health data to the National Instant Criminal Background Check System (NICS), which is utilized to check the backgrounds of individuals attempting to acquire a firearm nationwide."
Noble stuff? Maybe.
But by my count, that's at least three subjects sandwiched into a single bill. And while that kind of stuff happens all the time, and the law generally provides some broad latitude when it comes to the interrelatedness of topics included in legislation, this one probably doesn't pass muster, said Michael R. Dimino Sr., a professor at Widener University Law School in Susquehanna Twp., who's written about the single-subject rule.
Michael R. Dimino Sr. (Widener Law School)
"Think of any statute, it has a Section A, B and C because they all do slightly different things," he said. "You can find two statutes, widely disparate in subjects, but because they do something like protect the safety of the Commonwealth ... there's no neutral way of identifying what definition is too broad or too narrow."
And the Supreme Court hasn't tried because there's no tidy way of giving lawmakers "enough notice that this is how closely related," subjects in a bill have to be without running afoul of the Constitution, Dimino said.
But, as a matter of realpolitik, the court has stepped in when there's a "gut sense of whether [the Legislature] is trying to pull a fast one ... [by] trying to bury a controversial measure behind something else."
"It's basically a distrust of the Legslature," and when that happens, it's the court saying "'We'll use this one tool to make you play fair.' And this sounds like that kind of thing, a copper wire/gun bill," he concluded.
He's got a point. The only thing the original bill and the final product have in common is that copper is a metal and guns are made from metal. Apart from that, it seems like a stretch.
But it's also a principle deeply embedded law, tracing its roots back to the Constitutional Convention of 1872-73, which was convened to "reform corrupt legislative behavior," and act as a hedge against legislative logrolling, or the packaging together of proposals that might never have enough votes to pass on their own, Dimino wrote in an April 2012 paper published by Temple University.
Corruption ... logrolling. Plus la change, eh?
Anyway, without that kind of protection, "those legislators (and the factions they represent) would receive their pet projects, but the general interests of the Commonwealth would be harmed," he wrote.
In addition, the single-subject rule gives the public "clear notice" about a bill's contents and what it does, preventing "a legislator from burying a measure in a bill that is believed to focus on a different issue."
And according to both Dimino and state Sen. Daylin Leach, D-Montgomery, who's one of the plaintiffs in the legal action, the state's highest court has taken something of activist role when it comes to slapping the Legislature for violating the single-subject rule, notably in a case involving Pennsylvania's Megan's Law.
In 2013, the high court tossed part of the state's Megan's Law statute, ruling that changes made in 2004 were unconstitutional, The Associated Press reported.
The legislation at the time also included "such measures as a two-year statute of limitations on asbestos actions, the jurisdictional parameters of park police, and revisions to real estate law," The Associated Press reported.
"If you're standing here on Planet Earth, the moon looks really far away," Leach said Tuesday. "If you're standing in Andromeda, the Milky Way is just a tiny dot. If you get far away enough, anything will be related to anything else. If you have a real single-subject rule, there has to be a reasonable perspective But a civil action on gun legislation has nothing to do with criminal legislation for stealing copper wire."
As recently as 25 years ago, the high court probably wouldn't have batted an eye at packing a bill with multiple topics, said one veteran observer.
And so-called "Code Bills" that amend the state's Crime Code or School Code, are particularly inviting targets because they can contain a broad range of topics.
The high court seemingly reaffirmed the practice when it tossed a single-subject challenge to the 2004 law that legalized slot machine gaming in the state. And that may have been emboldened some lawmakers to get clever with amending code bills, that same legal observer said.
But with the Megan's Law decision, and another dealing with jury commissioners, the high court has been cracking down on single-subject violations, analysts said.
And all this stuff matters because there's a provision in the bill requiring municipal governments, which are having trouble enough making ends meet, to pick up the NRA's check for legal fees.
In response, city leaders from Allentown to Pittsburgh, which have such ordinances, are considering dropping them to dodge a costly court fight.
As we noted in an editorial when the bill passed last month, there's a word for that kind of behavior — "blackmail."
And there's a whole column waiting to be written about the dubious way the law grants the NRA legal standing to sue without having to find a local plaintiff — as is the case with the ACLU or Planned Parenthood when those groups file court actions. But we'd run out of Internet before that argument is finished.
And I'm deliberately staying away from the topic of gun control today because there's a deeper issue at stake.
And that's legislative transparency and fairness. The single-subject rule, as Dimino notes, is there for a reason: So the public can tell what the Legislature is up to and to keep lawmakers from burying controversial measures inside otherwise innocuous looking bills.
And don't say it's OK because the other team's ox is getting gored here.
If we ever live in an Earth-Two Pennsylvania where Democrats reclaim control of the General Assembly and they try to tuck language inside a bill declaring Wednesday "Slap a Republican Day," you won't like it when the legislative process and the law is used against you.
And that's what this comes down to: Either everyone is treated fairly in the eyes of the law and have the same access to the courts or they don't. And lawmakers pass stuff that's easily understandable in a process that's transparent to the taxpayers, or they don't.
Republican or Democrat, gun owner or gun opponent, that one seems pretty easy to understand.
John L. Micek is PennLive's Opinion Editor. Readers may email him at jmicek@pennlive.com or follow him on Twitter @ByJohnLMicek