State legislators lack standing to intervene in a challenge to an executive order concerning workers who provide in-home medical and personal care, the Pennsylvania Supreme Court held in Markham v. Wolf, __ A.3d __ (No. 59 MAP 2015, 60 MAP 2015, filed Mar. 29, 2016). Governor Wolf issued Executive Order 2015-05 on February 27, 2015. Inter alia, it establishes a process by which health care workers who are employed by the individuals they serve can obtain a designated representative to discuss wages and other benefits with the Secretary of Human Services. A group of patients, workers and institutional health care providers challenged Executive Order 2015-05 in the Commonwealth Court’s original jurisdiction, asserting that it establishes organizational labor rights for domestic home care workers without authorization and in conflict with Pennsylvania labor laws. Members of the Senate Majority Caucus (Appellants) sought to intervene, claiming the Executive Order was an unauthorized attempt by the Governor to exercise legislative power in violation of the separation of powers doctrine. Then-President Judge Pellegrini denied intervention in a single-judge opinion, and Appellants filed an interlocutory appeal.
On review, the Supreme Court affirmed in a 5-1 decision authored by Justice Todd. The majority surveyed case law analyzing legislative standing, observing that it is appropriate only in limited circumstances, such as when a legislator’s “direct and substantial interest in his or her ability to participate in the voting process is negatively impacted,” or when his or her official power or authority to act as a legislator is impaired. By contrast, the majority noted, a legislator lacks standing where he or she has an “indirect and less substantial interest in conduct outside the legislative forum which is unrelated to the voting or approval process, and akin to a general grievance about the correctness of governmental conduct.” The Court held that Appellants’ challenge fell into the latter category because Executive Order 2015-05 does not inhibit Appellants’ ability to propose, vote on, or enact legislation, nor does it prevent Appellants from acting as legislators with respect to advising, consenting, issuing, or approving matters. The Court further noted that Appellants can still enact future legislation in this area. The case now returns to the Commonwealth Court for disposition of the underlying petition for review, in which Appellants will participate as amicus curiae.
Justice Donohue issued a concurring opinion disagreeing with the majority’s statement that Fumo v. City of Phila., 972 A.2d 487 (Pa. 2009), is “the clearest articulation of the distinction between a matter implicating a legislator’s direct and substantial interest in the voting process or power to act and one that does not.” Justice Donohue opined that Wilt v. Beal, 363 A.2d 876 (Pa. Cmwlth. 1976), best articulates the issue of legislative standing. Justice Dougherty also wrote a concurring opinion. He opined that a bipartisan challenge to an executive order would present a stronger case for legislator standing. Justice Dougherty also posited that, given the Court’s flexible approach to the concept of standing generally, it would be open to a “developed and persuasive challenge to the existing approach” to legislative standing.
Chief Justice Saylor dissented. He opined that Appellants have standing because Executive Order 2015-05 does not reflect implementation of existing law but, rather, is an exercise of legislative power reserved to the General Assembly.