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Posted by on Oct 19, 2017 in Civil, Constitutional Provisions, Tax Law | 0 comments

Nextel v. Commonwealth: Uniformity Clause Bars Flat Cap for Taxes, but Statute is Severable

When paying corporate income tax in Pennsylvania, a corporation is permitted to carry over a net loss from the previous year to reduce the current tax year’s taxable income. However, the amount of deduction the corporation may receive—the amount of “net loss” it may carry over from the prior year—is capped at the greater of 12.5% of its current tax year income, or a flat cap of $3 million.

Nextel’s 2007 deduction from its 2006 net losses was capped at 12.5% of its 2007 income because this was greater than the $3 million flat fee cap. Nextel then brought a refund claim, and subsequently brought suit arguing that the $3 million cap that they did not use in tax year 2007 violated the Uniformity Clause in Pennsylvania Constitution, Article VIII, § 1, and—here’s where it gets tricky—that both caps on net loss deductions must be stricken because the statute was inseverable. Because the calculation they did not use was unconstitutional, the entire statute had to be stricken.

Majority by Todd: The flat cap on carryover funds violates the Uniformity Clause, but is severable from the rest of the statute

The Court agreed with the first, but not the second of Nextel’s arguments, and so Nextel wins, but really loses. Justice Todd’s majority opinion comprehensively considers the Uniformity Clause, discussing its background as a popularly-demanded addition to the “Reform Constitution” of 1874, a reaction to the abusive political power of railroads which allowed them to maneuver the General Assembly to exempt the railroads and their allies from taxes, and incrementally placing larger taxing burdens on the rest of the population to make up for the shortfall.

The Uniformity Clause, which comes into the modern 1968 Constitution unchanged, requires “substantial uniformity, which means as nearly uniform as practicable in view of the instrumentalities with which and subjects upon which tax laws operate.”

Todd wrote that Nextel’s “as-applied” argument against the flat cap is strong because of the numbers: 98.8% of all companies were exempt under the $3 million flat cap, while Nextel and a small handful of other corporate taxpayers were “required to shoulder the entire corporate net income tax burden” because of their greater income. In this respect, Nextel bears a larger burden of the corporate taxation burden in the Commonwealth than other companies. The Court found, therefore, that the tax statute “has created disparate tax obligations between these two classes of similarly situated taxpayers based solely on the value of the property involved.” This disparate treatment violates the Uniformity Clause, and the flat cap must be stricken.

 However, the Court did not agree that the statute was inseverable. Severability is the doctrine that determines when a statute may be left standing even without a portion of the statute stricken as unconstitutional. In other words, if a statute says you may not drive red, blue or green cars on the highway, and the Court finds that the prohibition of red cars is unconstitutional, must the whole statute be stricken, or are blue and green cars still prohibited?

Noting the general policy of Pennsylvania that all statutes are severable, codified by 1 Pa.C.S. § 1925, the Court explored two statutory exceptions to severability, which can both be phrased simply: where the legislature would not have passed the remaining statute in its remaining form, or where the statute simply doesn’t make sense without the stricken provision, the whole statute must fail.

Here, there was no reason to think the two legislative goals served by the corporate “net loss” taxation construct were completely defeated by striking one version of measure. Because the percentage cap was valid, and would likely have been passed by the legislature even if they had known the “flat cap” would be stricken down.

Concurrence by Baer: Nextel’s Challenge should be viewed as both Facial and As-Applied

 Justice Baer’s concurrence, joined by Justices Donohue and Wecht, argues that Nextel’s challenge should have been considered as both an “as-applied” challenge to the statute (which is how Nextel characterized the lawsuit), and a “facial” challenge to the validity of the statute (which Nextel disavowed). “[Nextel’s] challenge necessarily implicates the facial validity” of the statute, and the Court should have considered these implications in its majority opinion. “I write separately to clarify that, in my view, our holding declares the NLC unconstitutional on its face.”

Justice Baer appears to be correct that the majority opinion treats the statute as stricken as to all parties, not just Nextel.

Conclusion: Assorted Thoughts

A few scattered notes on this case.

First, the majority notes that Pennsylvania was the first state to include a uniform taxation requirement in its constitution. Thus, Pennsylvania’s continued grappling with this provision provides some guidance for other courts on this issue, and for other states considering adopting such a provision.

Second, although the reasons for the delay are not totally clear, this case is being adjudicated ten years after the tax year in question.

Third, the opinion doesn’t discuss Nextel’s standing, or the lack thereof. Nextel sued over a provision that didn’t apply to it in an attempt to strike down the provision that did apply. Another way of dealing with this case might have been to say that Nextel could not prove the whole statute was unconstitutional, and to decline to reach the merits of the issue of flat tax provisions. Alternatively, the Court may have considered that Nextel was burdened by the dichotomy, and that the lighter tax burden of other companies was harming Nextel directly. Regardless, this issue wasn’t discussed.

Finally, Nextel raises an interesting argument that the Court’s refusal to knock down the whole statute disincentivizes others to challenge tax statutes under the constitutional provision. This argument was rejected by the Court—obviously, they can’t just give you a better judgment than the law requires to “incentivize” lawsuits. But the argument offers a practical insight into a major hurdle to Uniformity Clause legislation—who wants to pay to bring these suits? Most individual taxpayers don’t stand to gain enough, and companies under the $3 million threshold certainly wouldn’t bring one. That leaves it to companies like Nextel or major casinos to take up the fight—and if they don’t think it benefits their bottom line, we may be stuck with unconstitutional taxes.

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Posted by on May 3, 2017 in Attorney Discipline, Constitutional Provisions, Rule-Making Powers | 0 comments

Villani v. Seibert: Dragonetti Statute Does Not Violate Separation of Powers; But We’re Leaving the Door Open

 

Civil lawyers know—and may even fear—the threat of a Dragonetti action. The draconian name accurately depicts one of the few times in law that a lawyer can subsequently be called into court for his actions as an advocate. The Act is named for Joseph Dragonetti, a then-retired reporter for the Philadelphia Daily News, who unsuccessfully brought suit after he was frivolously named in a lawsuit against a bank which he had done some marketing for. Dragonetti was unable to recover because of the common law rule—dating back to the 13th century—that required a show of imprisonment or seizure before an abuse of process claim could prevail. Dragonetti persuaded the legislature to pass 42 Pa.C.S. § 8352(1), the Act now commonly called by his name, in 1980, and his name has been bandied about in acrimonious disputes between litigious attorneys ever since.

Villani v. Seibert arose out of a case in Chester County (home of America’s most valuable mushrooms) in which a Dragonetti action was pleaded. Seibert persuaded the trial court to grant preliminary objections on the basis that the Dragonetti statute impermissibly crosses into the exclusive purview of the Supreme Court of Pennsylvania under Article 5, Section 10 of the Pennsylvania Constitution, which grants the Court the exclusive right to regulate the conduct of attorneys and to lay down rules governing the profession.

In a 6-1 decision, (though with only five votes for the majority opinion), the Court ruled that the Dragonetti Act did not violate its prerogatives to regulate the practice of law in the Commonwealth.

Saylor for the Majority: Dragonetti Statute is Primarily Substantive, but Where Punitive to Attorneys, It’s a Problem

Describing the statute as having “a strong substantive, remedial thrust,” Chief Justice Saylor relied on the Court’s voluminous caselaw (which is well summarized in the prior case of Com v. Olivo, 127 A.3d 769 (2015)) establishing that Article V, § 10’s provisions are generally meant to give the Court exclusive power to create procedural rules, while the legislature retains its more traditional power to create substantive rights and remedies for the Commonwealth.

The Court relied on federal caselaw which characterizes tort statutes such as this one as “perform[ing] an important remedial role” to emphasize that the legislature’s actions in passing the Dragonetti statute were substantive, not procedural. Given this fact, the statute falls within the legislature’s prerogative, rather than the Court’s.

“There is no directed challenge to the punitive damages aspect here,” Saylor noted, taking care to leave wide the door to the argument that an attorney is not subject to punitive sanctions under the Dragonetti Act. Such punishment might run afoul of the Court’s prerogative to discipline attorneys, and leaving attorneys open to discipline in civil actions brought by private parties throughout the Commonwealth may be argued to trample the Court’s exclusive powers. But this question is left for another day, and a narrower case. For now, the Court was content to rule that there is no “generalized attorney immunity from the substantive principles of tort law embodied in the Dragonetti Act.

Conclusion: Separation of Powers

This case represents a creative argument and a further refinement on the Court’s separation of powers jurisprudence. Several times, now, the Court has resisted the urge to become overly-aggressive in defense of its prerogatives, and is working to strike a balance between the substantive rights of the legislature and the more restrained procedural rule-making power of the Court. As the Court notes in this opinion, the legislature is better situated for making broad policy, and leaving questions such as the civil remedies available to aggrieved defendants to the legislature.

One final note: somewhat unusually, the Attorney General declined to take up the defense of the statute as called for under Pa.R.C.P. No. 235. The Court notes this oddity with some surprise in footnote 2. It is unclear why the AG’s office declined to intervene here.

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Posted by on Apr 29, 2017 in Constitutional Provisions, Criminal, Probation and Parole | 0 comments

Pittman v. Pa. Bd. of Probation and Parole: Board Abused its Discretion by Failing to Use Discretion

The Parole Violation statute requires the Board of Probation and Parole to use its discretion when considering whether to credit “time at liberty on parole” to a convicted parole violator’s re-sentencing for the underlying crime, the Supreme Court has ruled in Pittman v. Pa. Bd. of Probation and Parole. Furthermore, the Board must explain its decision in order to provide an opportunity for effective appellant review.

Kevin Pittman was sentenced in 2010 for a Possession With Intent to Distribute, and was paroled a year later. While on parole, Pittman committed another crime, which brought him before the Board. The Board checked a “No” box in answer to the question “Credit time spent at liberty on parole” on a form, and when pressed for an explanation by Pittman via letter, the Board argued he had “automatically forfeited credit for all of the time that you spent on parole” by committing a subsequent crime. Pittman appealed to the Commonwealth Court for review, which affirmed en banc.

Baer for the Majority: Parole Board has discretion to award credit for time at liberty on parole, and must at least consider doing so

 The Parole Violation statute provides that the Parole Board “may, in its discretion, award credit . . . for the time spent at liberty on parole.” This provision “clearly and unambiguously grants the Board discretion” to award credit for time at liberty on parole. Thus, the Board erred when it said that Pittman “automatically forfeited” his time spent on parole. “[T]he Board abused its discretion . . . by concluding that it had no discretion,” Justice Baer said for the majority, reversing the Commonwealth Court and remanding to the Board to consider whether, in its discretion, Pittman should be credited with time he spent at liberty on parole.

The Court went further, ruling that the Board must produce more than a “Yes” or “No” checkbox on a form when rendering a discretionary decision. The majority held that this requirement, though not found in the statute, rested on three separate bases. First, Article V, Section 9 of the Pennsylvania Constitution grants citizens the right to an appeal from all administrative agency hearings to courts of record. Failing to provide any written reasoning for the Board’s decision threatened to turn this Constitutional appellate right to a “mere empty formality.” Second, “inherent notions of due process” demand a written explanation when a convicted parole violator is facing re-sentencing. Third, the General Assembly’s intent in passing the Parole Violation statute is best served by requiring a written opinion regarding a decision involving the Board’s discretion.

Saylor: This Decision is In Keeping with our Past Decisions on Parole Board Appeals

 Noting that the Court has previously ruled that parole revocation determinations are subject to the right to appeal, Chief Justice Saylor expressed concern in a brief concurrence that the majority opinion “may be read to diverge from this statutory requirement concerning the timing and/or content of written explanations by the Board.” Saylor offered no further explanation on this point, and was joined by Justice Todd in this opinion.

Mundy: Discretion Must be Exercised by the Board, but No Explanation is Required in the Statute

Arguing that the majority “insert[ed] new language” into the statute, Justice Mundy, joined by Justice Wecht, concurred in the result because the Board abused its discretion, but noted that nothing in the statute requires a written opinion. Noting that the Board is free to defend its decision in the appellate courts—as it did here—she argued that a written decision is not required by the statute or by practice in order for a meaningful appeal to take place.

Conclusion: The Board lost this one, right?

 The Parole Board loses this appeal on paper, but one always wonders what the Appellant wins in a case like this. For his pains, he receives the right to go back before the Parole Board, wounded by a rebuke by the Commonwealth’s highest tribunal, and beg for discretionary mercy. This time, the Board will be free to check “No” again, and will be sure to write an opinion as to why. Perhaps the Board will grant some mercy, now aware that it has broader latitude than it previously thought, but it seems unlikely that Mr. Pittman ends up in a much better situation now than before.

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Posted by on Sep 10, 2016 in Civil, Constitutional Provisions, Family Law | 0 comments

D.P. v. G.J.P.: Mere separation of parents is insufficient grounds to give grandparents standing to force custody dispute

The fourteenth amendment’s due process clause requires “that the custody, care and nurture of the child reside first in the parents,” (quoting Prince v. Mass, 321 U.S. 158, 166 (1944)), and giving third parties–including grandparents–standing to initiate a custody battle before the courts invokes strict scrutiny. 23 Pa.C.S. § 5322 previously purported to give such standing to grandparents and great-grandparents when the parents had been separated for six months or more, presumably on the basis that such separation made the parents less fit and should open their right of custody to court supervision if questioned by close family members. But our Supreme Court ruled yesterday in D.P. v. GJP that such separation alone is an insufficient basis to overcome parental constitutional rights.

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Posted by on Sep 2, 2016 in Civil, Constitutional Provisions, Elections | 0 comments

Cortes v. Sprague: Ambiguous Ballot Question Splits the Court

Pennsylvania’s courts have been the site of an unusual amount of unfolding drama this year, from the sordid tale of Bill Cosby’s fall from grace to the strange fight over taped depositions that turned into a question of SCOPA quorums in Dougherty v. Heller. But Friday’s ruling that an ambiguous ballot question does not violate the Pennsylvania Constitution has been one of the most bitterly lamented of the year.

For the past two years, the General Assembly has been moving through the slow and methodical process of voting and re-voting for a Constitutional amendment to raise the mandatory retirement age of judges from 70 to 75. The question finally qualified to go to the voters of the Commonwealth. But the timing could not be much worse. The vote will come against a partisan backdrop in which Democrats have been winning big in judicial elections of late, and Chief Justice Saylor, the second to last Republican on the Court, turns 70 in December, and will be forced to retire if the amendment is not passed.

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