Markham v. Wolf was scheduled for arguments before the Supreme Court in Pittsburgh after members of the state Senate majority caucus entered an application to intervene in the case, alleging Wolf violated separation of powers. “The governor is legislating instead of executing the law,” said Joel L. Frank of Lamb McErlane, who argued for the senators.

The Senate contended that in issuing an executive order establishing the advisory group to address home care services, Wolf used lawmaking power and contradicted state labor laws. But Sean Kirkpatrick of the Office of Attorney General, who argued for Wolf, said the executive order was not a legislative interpretation, but a direction to a subordinate. He said an individual, such as direct care worker Jessica Markham and the other parties that sued Wolf with her, had standing to challenge the executive order, but not the legislators. “The legislature is not tasked with micro-managing every action by the executive,” he said. “If all the state legislature has to say is this executive order … is new law … that covers virtually everything.” The case was born out of an executive order Wolf entered in February, creating a group to “advise the governor’s office and executive branch agencies and offices of the commonwealth … on ways to improve the quality of care delivered through the home care services programs.”

The Markham parties entered their petition to the Commonwealth Court in April, alleging Wolf’s executive order violates the state constitution and state law. Markham said Wolf’s order “seeks to unionize direct care workers, such as herself, who do not have organizational rights under the Pennsylvania Labor Relations Act.” Later in April, President Judge Dan Pellegrini issued a preliminary injunction preventing Wolf from entering into any memorandum of mutual understanding pursuant to his executive order until the case was considered on its merits. Pellegrini’s order also denied the senators’ application to intervene.

The Pennsylvania Senate majority caucus led an application for relief in July, seeking expedited consideration of an appeal. The Supreme Court granted the application in August, noting probable jurisdiction and scheduling the matter to be heard in Pittsburgh. The caucus’ brief asks “whether legislative standing exists to challenge an executive order the origin of which has neither been authorized by the constitution nor promulgated pursuant to statutory authority, thus constituting a violation of the separation-of-powers doctrine.” It alleges the governor’s order interfered with lawmaking power. Wolf’s brief counters by asking whether the Senate parties possess standing in their official capacities to intervene.

If accepted, the brief said, the senators’ argument would give legislators almost unlimited standing to challenge executive actions. The Markham parties’ brief argued the executive order “grants collective bargaining rights to workers who are excluded from exercising such rights” under state law. It argues participants in programs for elderly and disabled people should have the right to control worker relations, rather than the government. The Markham parties also echoed the senators’ argument that the executive order was unconstitutional. Both the senators and Wolf relied on the same state Supreme Court precedent in Fumo v. City of Philadelphia to support their arguments. Kirkpatrick acknowledged that similarity in his argument, calling it unusual.

The senators pointed to the finding in Fumo that “‘legislators … have been per-mitted to bring actions based upon their special status where there was a discernible and palpable infringement on their authority as legislators.’” But Pellegrini rejected this argument, Wolf’s brief said, because Fumo said legislators’ ability to challenge is limited, and legislative standing has not been recognized in actions seeking redress for a general grievance. “The Commonwealth Court ruled that the senators raise only a generalized grievance shared by all Pennsylvania citizens in the lawful execution of their laws, and do not claim an injury unique to their legislative interests,” the brief said.

David R. Osborne of The Fairness Center, an attorney for two of the petitioners, argued Wednesday that the issue was not just a grievance. “The argument here is not a mere violation of the law … the executive order is new law,” he said. The justices grilled Kirkpatrick on how Wolf’s action differed from lawmaking. “You’re talking labor law. [The legislators] have claimed the field on that,” Justice J. Michael Eakin said. He then asked how a governor has what seems to be the same power the legislature has to make labor law. Kirkpatrick said Wolf’s executive order is not equivalent to law. Justice Max Baer asked Kirkpatrick for the “fact that may be the linchpin” in the case—why the order was a note to a sub-ordinate of Wolf, rather than a labor law. Chief Justice Thomas G. Saylor added to Baer’s question, noting the order says a direct care worker representative should meet with the Department of Human Services to discuss “the typical things in a collective bargaining agreement.” Kirkpatrick responded the order did not have the force of law, and did not create a union.

He said the order does not provide workers with the ability to strike or protections in the case of a termination. If that creates a union, Kirkpatrick said, “that is a poor union indeed.” Markham is not the only case involving gubernatorial powers in which the Senate majority caucus has recently been involved. In Arneson v. Wolf, which was argued before the state Supreme Court last month, the senators _led jointly with Office of Open Records Executive Director Erik Arneson, arguing Wolf did not have the authority to terminate him without cause. Following Wednesday’s arguments, when asked about the connection between Markham and Arneson, Frank said, “I think it’s important for the governor to operate in the constitutional parameters that are established.”

http://www.thelegalintelligencer.com/id=1202739200451/Justices-Consider-Wolfs-ExecutiveOrder-Powers-?mcode=1202615580822

Author: Lizzy McLellan can be contacted at 215- 557-2493 or lmclellan@alm.com. Follow her on Twitter @LizzyMcLellTLI. •