1970, and Judge Montgomery filed a "Supplemental Pre-Trial Order" on August 12, 1970. In this Order, Judge Montgomery ruled, inter alia: (1) the Court had the burden of proof to establish the reasonable necessity of its financial requests and none of the parties could take advantage of the usual presumption of reasonableness by virtue of their public office; (2) defendants, as a defense to plaintiff's demand for additional funds in this action of mandamus, could not "reopen❞ the earlier budget figures, which had been approved by the Mayor and for which appropriations had been made by the City Council, in order to prove that the present appropriation was being used inefficiently or that a more efficient use of present appropriations would cover some or all of the additional requested items. . . . The record was closed on August, 21, 1970, after extensive testimony had been taken and exhibits produced. At this time, the Court amended its request for funds by reducing the sum of $5,230,817 it had requested in the complaint to $3,962,532, mainly because of the delay in time from the start of the fiscal year (July 1, 1970).

On September 30, 1970, Judge Montgomery issued a mandamus Order against defendants to appropriate and pay the amount of $2,458,000, and made final his injunctive Order of July 27, 1970. . . .

Court's Inherent Power

It is a basic precept of our Constitutional form of Republican Government that the Judiciary is an independent and co-equal Branch of Government, along with the Executive and Legislative Branches.... The line of separation or demarcation between the Executive, the Legislative and the Judicial, and their respective jurisdiction and powers, has never been definitely and specifically defined, and perhaps no clear line of distinction can ever be drawn. However, we must, of necessity, from time to time examine and define some of the respective powers within these undefined boundaries.

Because of the basic functions and inherent powers of the three coequal Branches of Government, the co-equal independent Judiciary must possess rights and powers co-equal with its functions and duties, including the right and power to protect itself against any impairment thereof. See Commonwealth ex rel. Hepburn v. Mann, 5 Watts & S. 403, supra; Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577, supra; Wilson v. Phila. School Dist., 328 Pa. 225, supra.

Expressed in other words, the Judiciary must possess the inherent power to determine and compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer Justice, if it is to be in reality a co-equal, independent Branch of our Government. This principle has long been recog

nized, not only in this Commonwealth but also throughout our Nation. . . .

The very genius of our tripartite Government is based upon the proper exercise of their respective powers together with harmonious cooperation between the three independent Branches. Leahey v. Farrell, 362 Pa. page 57, 66 A.2d 577, supra. However, if this cooperation breaks down, the Judiciary must exercise its inherent power to preserve the efficient and expeditious administration of Justice and protect it from being impaired or destroyed. Leahey v. Farrell, 362 Pa. pages 57-58, 59-60, supra. . . .

Reasonable Necessity

In the leading case of Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577, supra, the Court of Common Pleas of Cambria County entered a mandamus Order against the County Commissioners and County Controller to compel the payment of funds necessary for salary increases given to the Court stenographers. The Court of Common Pleas had entered the Order without first complying with the provisions of Section 23 of the Act of July 5, 1947, P.L. 1308, 16 P.S. sec. 304, which required submission of salary increases of Court personnel to the County Salary Board. This Court reversed the lower Court Order because there was no attempt to first comply with the statutory provisions of administrative procedure for salary increases. However, in Leahey, we reaffirmed the inherent powers of the Judiciary to mandamus the payment of sufficient funds out of the public treasury for the efficient administration of the Judicial Branch of Government. The Court pertinently said 362 Pa. pages 57-58, 66 A.2d 579-580: "Should Commissioners, however, neglect or refuse to furnish funds, or sufficient funds, for reasonable judicial functions, and in consequence the efficient administration of the judicial branch of the government is thereby impaired or destroyed, the courts possess the inherent power to require such necessities to be furnished and to direct payment therefore out of the public treasury....'

66

"... Should the legislature, or the county salary board, act arbitrarily or capriciously and fail or neglect to provide a sufficient number of court employes or for the payment of adequate salaries to them, whereby the efficient administration of justice is impaired or destroyed, the Court possesses inherent power to supply the deficiency. Should such officials neglect or refuse to comply with the reasonable requirements of the court, they may be required to do so by mandamus."

Leahey correctly holds (by necessary implication) that the burden is on the Court to establish that the money it requests is reasonably necessary for "the efficient administration of justice." If a Court is unable to provide an efficient administration of Justice because of insufficient funds to have adequate personnel, or reasonable salaries for personnel, or for other

necessary Court adminstration services, or for construction and maintenance of essential Court facilities, then our whole system of Justice and its administration will undoubtedly be greatly impaired, if not destroyed.

The confidence, reliance and trust in our Courts and in our Judicial system on the part of the Bench and the Bar, as well as the general public, have been seriously eroded. We cannot permit this to continue. In order to improve and expedite Justice, it is both important and imperative that we re-examine and reevaluate our Courts and their administration, our judicial processes and our entire Judicial system.

The demands upon our Judicial system have increased tremendously in the last decade, especially in the criminal field. Violent crimes have increased 10% or more every year. The increase in criminal and civil trials, and the number of required pre-trial, pre-sentencing and post-trial hearings have virtually swamped the Courts of this Commonwealth, particularly in Philadelphia. New programs, techniques, facilities, and expanded personnel have been and will continue to be necessary to meet the mandate of providing and administering a more efficient Judicial system and making Justice for all speedier and more certain.

Defendants contend, inter alia, that the overall problem of financial difficulties which undoubtedly confront and harass the City of Philadelphia should be considered in determining what is "reasonably necessary" for the "efficient administration of Justice by the Courts." The demand, often amounting to necessity, for additional funds for both the maintenance and the improvement of public services and general public welfare, and the unfortunate rise in costs of nearly every description, is widespread. Nevertheless, the deplorable financial conditions in Philadelphia must yield to the Constitutional mandate that the Judiciary shall be free and independent and able to provide an efficient and effective system of Justice.

Discussion Notes

1. Regarding Tate and its progeny, see Comment, "State Court Assertion of Power to Determine and Demand its Own Budget," University of Pennsylvania Law Review 120 (June 1972): 1187. See generally, Note, “Judicial Financial Autonomy and Inherent Power," Cornell Law Review 57 (July 1972): 975; Geoffrey C. Hazard, Jr., Martin B. McNamara, and Irwin F. Sentilles III, "Court Finance and Unitary Budgeting," Yale Law Journal 81 (June 1972): 1286; Carl Baar, "Judicial Activism in State Courts: The Inherent Powers Doctrine," in State Supreme Courts: Policymakers in the

The Court does not have unlimited power to obtain from the City whatever sums it would like or believes it needs for its proper functioning or adequate adminstration. Its wants and needs must be proved by it to be "reasonably necessary" for its proper functioning and administration, and this is always subject to Court review.

Mr. Chief Justice Marshall said in McCulloch v. Maryland, 17 U.S. 316, 431, 4 Wheat 316, 4 L.Ed. 579, "...the power to tax involves the power to destroy; .. ." A Legislature has the power of life and death over all the Courts and over the entire Judicial system. Unless the Legislature can be compelled by the Courts to provide the money which is reasonably necessary for the proper functioning and adminstration of the Courts, our entire Judicial system could be extirpated, and the Legislature could make a mockery of our form of Government with its three co-equal branches-the Executive, the Legislative and the Judicial.

We have carefully considered all of the defendants' contentions, as well as all of the Court's contentions, but deem further discussion thereof unnecessary.

We agree with Judge Montgomery's conclusion that "the amount recommended by Mayor Tate and approved by Council is inadequate to meet the reasonable needs of the Court [of Common Pleas] for the present fiscal year." We also agree with his Order of September 30, 1970, allowing the Court $2,458,000. This represents his allowance and specific allocation of certain of the amounts requested by the Court and his disallowance of certain items which the Court had requested. Judge Montgomery's award was based upon nine months remaining in the City's fiscal year, July 1, 1970 to July 1, 1971. We accordingly reduce the award to reflect the amount of time remaining in this fiscal year (five months from February 1, 1971) and awarded the Court of Common Pleas the sum of $1,365,555.

Judgment, as modified, is affirmed.

Federal System, eds. Mary Cornelia Porter and G. Alan Tarr (Westport, Conn.: Greenwood Press, 1982), p. 129.

2. In 1981, the New Jersey Supreme Court promulgated a rule establishing a procedure for resolution of budget impasses such as occurred in Tate. Rule 1: 33-9, New Jersey Court Rules of General Application (1988). See In Re Hudson County 1982 Judicial Budget, 91 N.J. 412, 452 A.2d 202 (1982); In re Union County Judicial Budget Impasse, 87 N.J.1, 432 A.2d 807 (1983).

3. Which procedure seems preferable, Pennsylvania's or New Jersey's?

On August 5, 1974, the American Federation of State, County, and Municipal Employees (AFSCME) filed with the Pennsylvania Labor Relations Board a petition for representation, alleging that it represented at least thirty per cent of the court reporters of Philadelphia. The petition named the City and the Court of Common Pleas of Philadelphia as employer. Despite notice, the City did not appear at hearing before the Board concerning the petition. AFSCME amended its petition to exclude the City as a named employer.

Finding that Act 195 applies to the employment relationship between judges and court reporters, the Board ordered an election, following which the Board, on June 19, 1975, certified AFSCME as the exclusive bargaining representative of court reporters. The Board dismissed the judges' continuing objection that Act 195 does not apply to their court reporters, and entered a final order of certification.

Appellants Philadelphia judges appealed the Board's order to the Court of Common Pleas of Philadelphia and petitioned this Court to assume plenary jurisdiction over the controversy. We granted the petition and transferred the proceedings to the Commonwealth Court. The Commonwealth Court affirmed the order of the Board and we granted appellants' petition for allowance of appeal.

III

The Constitutionality of
Applying Act 195 to the Courts

Appellants argue that subjecting "wages, hours and other terms and conditions of employment," see Act 195, sec. 701, 43 P.S. sec. 1101.701, to bargaining will interfere with their ability to administer justice.

Appellants contend that arbitrators called upon whenever bargaining reaches an impasse could render decisions removing judges' control over important considerations such as starting times, overtime work, and appointment of court reporters. They also contend that the Board would be empowered to create too many bargaining units and, through unfair labor charge procedures, see Act 195, sec. 1201, 43 P.S. sec. 1101.1201, decide that courts have discharged or disciplined an employee illegally.

On this record, appellants' fear for the continued independence of the judiciary is unjustified. As we concluded in Ellenbogen v. County of Allegheny, supra, so long as judges retain authority to select, discharge, and supervise court personnel, the independence of the judiciary remains unimpaired. These crucial areas of judicial authority are not infringed by collective bargaining, which here will resolve matters involving wages and other financial terms of employment. See Act 195, secs. 701 and 702, 43 P.S. secs. 1101.701 and 1101.702; see generally Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975). Moreover, should collective bargaining impair the independence of the judicial function, nothing in Act 195 nor our decision in Ellenbogen prohibits courts from taking reasonable, appropriate measures to maintain their independence. See Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971); Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949),6

IV Conclusion

Because no dispute exists here concerning the proper managerial representative for purposes of proceedings under Act 195, we are not called upon to decide whether appellants are to sit as the managerial representative in bargaining and representation proceedings with court reporters. We decide only that the Legislature intended Act 195 to apply to court reporters of Philadelphia and, on the present record, such application is constitutional.

Relying on Passaic County Probation Officers' Ass'n. v. County of Passaic, 73 N.J. 247, 374 A.2d 449 (1977), amicus Court Administrator of Pennsylvania contends that Act 195 constitutes an impermissible attempt by the Legislature to regulate judicial administration, a subject assertedly within the exclusive province of this Court. The Court Administrator further argues that implementation of numerous bargaining agreements throughout the Commonwealth pursuant to Act 195 will thwart this Court's effort to unify the judicial system of Pennsylvania. We do not agree. For all the reasons stated in text, Act 195 does not impose any threat to the unification of the judicial function because collective bargaining involving court personnel does not alter judges' authority to administer justice. See Ellenbogen v. County of Allegheny, Pa. 388 A.2d 730 (1978).

Accordingly, the order of the Commonwealth Court is affirmed and the case is remanded to the

Discussion Notes

1. Would the Pennsylvania courts be required to follow labor arbitrators' awards concerning judicial employees? See Beckert v. American Federation of State, County and Municipal Employees, 56 Pa.

Pennsylvania Labor Relations Board for proceedings consistent with this opinion.

Cmwlth. 572, 425 A.2d 859, aff'd 501 Pa. 69, 459 A.2d 756 (Pa. 1983).

2. See generally David Weinstein, “Collective Bargaining in the Judicial Branch: Current Legal Developments," Justice System Journal 4 (Spring 1979): 304.

Justice Frankfurter warned about the problems caused by courts rendering advisory opinions. "It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay." Felix Frankfurter, "A Note on Advisory Opinions," Harvard Law Review 37 (June 1924): 1008.

Many state constitutions, however, provide for, and under certain circumstances, require, the issuance by the state's highest court of advisory opinions to the other branches of government. See generally Comment, "The State Advisory Opinion in Perspective," Fordham Law Review 44 (October 1975): 81.

In re House Resolution No. 12. 88 Colo. 569, 298 P. 960 (1931)

Per Curiam.

This court is in receipt of House Resolution No. 12 of the House of Representatives of the TwentyEighth General Assembly now in session, adopted and transmitted under that portion of section 3, article 6 of our Constitution which reads: "The supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives."

This resolution sets forth that "there is now pending before the 28th General Assembly a proposed income tax law which has passed the House on 3rd reading"; that the constitutionality of such a law "has been questioned"; and that the House has obtained from the Attorney General an opinion upholding said constitutionality, which opinion is attached. It next recites the reasons for the passage of the act and

states the necessity for an opinion of this tribunal. Then follows the request of "the House of Representatives" that we decide "for the direction and guidance of the General Assembly and the Governor," three questions, i.e.: (1) Has the legislature authority to adopt a flat or graduated income tax? (2) Has it authority to use the proceeds thereof for certain specified purposes? (3) Has it authority to provide certain exemptions therefrom?

We have held that said section 3 authorizes an inquiry by the House or Senate only when a bill involving a constitutional or publici juris question is before the body. In re Senate Bill No. 416, 45 Colo. 394, 101 P. 410. Also that it authorizes an inquiry by the Governor only when such a bill has been passed by both House and Senate, and is before him for signature. In re Proposed Amendments to the Constitution, 50 Colo. 84, 114 P. 298.

Assuming, but not deciding, that these questions are such as are contemplated by the Constitution, the "solemn occasion" has passed, or has not arisen. The bill is no longer before the House, and will never again be if its action be rejected or approved in toto by the Senate. The latter may be unanimously of the opinion that the bill is or is not constitutional. If so, no such "occasion" will confront that body. If otherwise, the Senate may not wish our opinion. If the Senate rejects the bill, no questions in relation thereto can confront the Governor. If it passes the bill, he may not wish our opinion.

Since said constitutional provision is our only authority for answering questions not presented in litigated cases, and since these interrogatories do not fall within that section, we respectfully request that the honorable House of Representatives withdraw them.