Sprague, R., Aplts v. Cortes, P.

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
RICHARD A. SPRAGUE, HON. RONALD : No. 100 MAP 2016
D. CASTILLE, AND HON. STEPHEN :
ZAPPALA, SR., : Appeal from the Order of the
: Commonwealth Court dated October 5,
Appellants : 2016 at No. 517 MD 2016
:
:
v. :
:
:
PEDRO A. CORTÉS, SECRETARY OF :
THE COMMONWEALTH OF :
PENNSYLVANIA, IN HIS OFFICIAL :
CAPACITY, :
:
Appellee :
OPINION IN SUPPORT OF REVERSAL
JUSTICE TODD DECIDED: October 25, 2016
Underlying the present appeal is the yet-unresolved question of whether the
ballot language — seeking to raise the mandatory retirement age of judges and justices
from 70 to 75 — fairly, completely, and accurately apprises the voters of the
constitutional change they are being asked to approve. When we last faced this
question in Sprague I1, I came to the considered conclusion that, in failing to inform the
voters that they were increasing the mandatory retirement age, not imposing a
mandatory retirement age for the first time, this ballot language was unconstitutionally
misleading.2 3
However, our Court split 3-3 in that case, issuing an order that we were
1
Sprague v. Cortés, 75 MAP 2016, 2016 WL 4595403 (Pa. filed Sept. 2, 2016)
(“Sprague I”).
2
The ballot question states:
(continuedC)
“without authority to grant relief and the status quo of the matter prior to the filing of the
lawsuit is maintained.” Sprague I (per curiam order). As a result, regardless of what
one concludes about the merits of the important constitutional question at issue, we
manifestly did not answer that question. Nevertheless, those Justices in favor of
affirmance would transmogrify our non-decision into a preclusive ruling on the merits,
and affirm the erroneous Commonwealth Court order below. See Opinion in Support of
Affirmance (“OISA”). By stark contrast, and for the following reasons, I would reverse
the Commonwealth Court’s order and remand for further proceedings.
As noted by the OISA, the constitutional challenge to the ballot language was
brought by Appellants in the Commonwealth Court, and this Court assumed
extraordinary jurisdiction in Sprague I, culminating in a per curiam order from this Court.
As the Court was deadlocked — with three Justices concluding Appellants were correct
in their claim that the ballot language was misleading and three Justices concluding
they were not — we could agree on only one thing, the following order:
AND NOW, this 2nd day of September, 2016, the Court
being evenly divided in its determination as to which parties
are entitled to the grant of summary relief, this Court is
without authority to grant relief and the status quo of the
matter prior to the filing of the lawsuit is maintained. See
Creamer v. Twelve Common Pleas Judges, 281 A.2d 57
(Pa. 1971) (holding that where this Court was evenly divided
in a King’s Bench original jurisdiction matter challenging
gubernatorial appointments to judicial vacancies, the
appropriate disposition was to enter a per curiam order
(Ccontinued)
Shall the Pennsylvania Constitution be amended to require
that justices of the Supreme Court, judges and magisterial
district judges be retired on the last day of the calendar year
in which they attain the age of 75 years?
3
See Sprague I (Opinion in Support of Granting Plaintiffs’ Application for Summary
Relief and Denying Defendant’s Application for Summary Relief by Todd, J., joined by
Dougherty, J., and Wecht, J., in part).
[100 MAP 2016] - 2
noting that the requested relief could not be granted, thereby
maintaining the status quo of the matter).
Sprague I (per curiam order). After this Court subsequently declined to remand the
matter to the Commonwealth Court4, Appellants refiled the same constitutional
challenge in that court. The Commonwealth Court rejected this challenge, without
addressing the merits, and the issue presently before us is whether that court erred in
rejecting Appellants’ new filing on the grounds that this Court already decided the matter
in Sprague I.
For reasons of efficiency and fairness, courts rightly preclude the same parties
from re-litigating questions that have already been decided. Here, citing our prior order
in Sprague I, the Commonwealth Court rejected Appellants’ present suit under the
doctrine of res judicata. In doing so, it set forth that doctrine’s basic and well
established governing principles:
[It is] a doctrine by which a former adjudication bars a later
action on all or part of the claim which was the subject of the
first action. Any final, valid judgment on the merits by a court
of competent jurisdiction precludes any future suit between
the parties or their privies on the same cause of action.
Sprague v. Cortés, 517 M.D. 2016 at 5 (Pa. Cmwlth. filed Oct. 5, 2016) (quoting R/S
Fin. Corp. v. Kovalchick, 716 A.2d 1228, 1230 (Pa. 1998)) (emphasis added). Stated
differently, to apply the doctrine of res judicata, “the issue or issues must have been
actually litigated and determined by a valid and final judgment.” County of Berks ex rel.
Baldwin v. Pennsylvania Labor Relations Bd., 678 A.2d 355, 359 (Pa. 1996).
While there is no doubt that our order in Sprague I was final in the sense that it
was this Court’s concluding pronouncement in the matter before us, it was decidedly not
a judgment on the merits, nor did we actually litigate or determine anything. In the prior
4
This author and Justice Wecht dissented.
[100 MAP 2016] - 3
matter — as now — Appellants posed a simple legal question: does the ballot language
satisfy constitutional standards for clarity? This divided Court could not and did not
answer that question. That observation, at its simplest, answers the res judicata
question; and the case cited by the OISA, which I discuss below, does not alter that
analysis. It was thus plainly erroneous, in my view, for the Commonwealth Court to bar
Appellants’ present suit on the grounds that we had answered the constitutional
question.
This straightforward interpretation of our prior disposition is also dictated by the
language of our per curiam order in Sprague I. Critically, we noted therein that, in light
of our 3-3 deadlock, we were “without authority to grant relief.” Appellee, the
Commonwealth Court, and the OISA ignore the import of this explicit qualifying
language. Because of the deadlock in Sprague I, this Court could agree on only one
thing: that we were unable to act. Contrary to the suggestions of the OISA, we did not
“declin[e]” relief, nor did we decide Appellants were “not entitled to relief.” See OISA at
7. Instead, we determined that we lacked authority to grant relief. A court lacking the
authority to act lacks the ability to act. Indeed, this point was explicitly made in Creamer
v. Twelve Common Pleas Judges, 281 A.2d 57 (1971), the sole precedent we cited in
our order in Sprague I. There, analogizing our 3-3 deadlock in that case to a tribunal
containing two members who were likewise deadlocked, we stated:
When a legal or semi-legal tribunal consists of only two
members, neither one of them can perform an affirmative act
changing, or which may change, an existing condition; for it
takes a majority of the whole body to do this, and one is not
a majority of two.
Id. at 58 (quoting In re First Cong. Dist. Election, 144 A. 735, 739 (Pa. 1928)) (internal
quotation marks omitted and emphasis added). Thus, our declaration in Sprague I that
[100 MAP 2016] - 4
we lacked the authority to act, along with our citation to Creamer, demonstrates that we
took no substantive action — we were unable to act on the merits.
Moreover, if there could be any ambiguity — and there is none — about the
effect of our pronouncement that we were “without authority to grant relief,” it was
resolved by our statement immediately following: “the status quo of the matter prior to
the filing of the lawsuit is maintained.” These words can only mean that, because of our
deadlock, we intended to return the parties to the status they occupied at a time prior to
our intervention. Again, our citation to Creamer proves this. Therein, as in Sprague I,
we sat in our original jurisdiction, and stated:
It is a universal rule that when a judicial or semi-judicial body
is equally divided, the subject-matter with which it is dealing
must remain in statu[s] quo.
Id. at 58 (quoting In re First Cong. Dist. Election, 144 A. at 739) (internal quotation
marks omitted). That point bears emphasis: we stated that the subject-matter with
which a deadlocked original jurisdiction court is dealing must remain in the status quo.
Obviously, prior to our intervention in Sprague I — the status quo — the parties were
unconstrained by any court’s pronouncements on the constitutional issue at hand, and
Appellants were unencumbered by any judgment on the merits. Yet, the OISA looks
past these clear declarations of non-action and discovers not just a judgment, but a
judgment on the merits. Gazing through the looking glass, the OISA strains to conclude
that, in Sprague I, we simultaneously issued a judgment on the merits and returned the
parties to the status quo. The illogic of this position is patent. A court can issue a
judgment on the merits. A court can restore the status quo prior to litigation. It cannot
do both at the same time.
Thus, basic principles of res judicata and the explicit text of our order should be
the simple end of this appeal, and indicate summary reversal. However, even were I to
[100 MAP 2016] - 5
accept the characterizations of the OISA that our order in Sprague I was a denial of
extraordinary relief — rather than a simple deadlocked inability to act and restoration of
the status quo — this Court has explicitly held that an order denying extraordinary relief,
without more, has no res judicata effect. In County of Berks, supra, we addressed the
contention that our denial of an application for extraordinary relief precluded a latter suit
by the same parties on the same question in the Commonwealth Court. Finding the
matter to be one of first impression, we surveyed other jurisdictions, and noted:
The general rule is that where the extraordinary jurisdiction
of a court is unsuccessfully invoked and the court does not
expressly adjudicate the matter on the merits, then there is
no preclusive effect and the petitioning party is free to
pursue his claim in any appropriate forum.
Id. at 359 (citing cases). Recognizing that there are reasons beyond the lack of legal
merit for this Court to deny extraordinary relief, we held that an order without opinion
denying such relief had no preclusive effect:
Therefore, we now hold that where this court has issued an
order without opinion denying extraordinary relief, that order
alone is insufficient to establish that there has been a full
and final adjudication of the claims raised. Thus, because
the bar of res judicata is inapplicable to this matter,
Appellees' first claim does not provide a basis for affirming
the decision of the Commonwealth Court.
Id. Thus, even if our order in Sprague I were viewed as a denial of relief, on this
additional precedential authority, the Commonwealth Court erred in rejecting Appellants’
suit on the basis of res judicata.5
5
The OISA attempts to evade the import of County of Berks by noting that, in that case,
we issued an order denying an application for extraordinary relief, whereas, in Sprague
I, we assumed extraordinary jurisdiction, and ultimately issued an order which the OISA
contends had the effect of denying extraordinary relief. OISA at 10. From the point of
view of the parties, and, more critically, for purposes of res judicata, I see no distinction.
In either scenario, relief is denied by simple order. Moreover, I disagree with the OISA’s
superficial contention that the issuance of multiple opinions in Sprague I, which even the
(continuedC)
[100 MAP 2016] - 6
The OISA cites Hartman v. Greenhow, 102 U.S. 672 (1880), in support of its
contention that our per curiam order was a “final judgment on the merits for purposes of
res judicata.” OISA at 8. First, caselaw from the Supreme Court of the United States
does not control our Court’s determination of the preclusive effect of our orders on the
adjudication of state constitutional claims, inasmuch as our Court is the final arbiter of
such pure questions of Pennsylvania law. Moreover, as also observed by Justice
Wecht6, this case does not establish the novel jurisprudential proposition offered by the
OISA.
In Hartman v. Greenhow, the petitioner sought a writ of mandamus from the
Supreme Court of Appeals of Virginia to compel the treasurer of Richmond to accept
petitioner’s tender of state issued bonds as payment of his state tax obligations without
deducting additional state tax from their redemptive proceeds. Petitioner claimed that
the statute under which the treasurer asserted authority to make this deduction violated
the Contract Clause of the United States Constitution. The Virginia Supreme Court
divided 3-3 on the merits of that question, which, under Virginia law, constituted a denial
of the issuance of the writ. The narrow jurisdictional question which the United States
Supreme Court addressed as a threshold matter, from which the OISA’s quotation
derives, was whether the split decision of the Virginia Supreme Court constituted “a final
judgment or decree” under the Judiciary Act of 1787, and the federal high Court
concluded that it did since the effect of the judgment was to deny the writ of mandamus
and to finally conclude that litigation. Importantly, though, the high Court did not purport
to opine on whether the doctrine of res judicata barred the parties from re-litigating the
(Ccontinued)
OISA recognizes are non-precedential, see OISA at 3, makes any difference for
purposes of application of County of Berks. Our order in Sprague I was issued purely
under the authority of Creamer.
6
See Opinion in Support of Reversal (Wecht, J.) at 3 n.2.
[100 MAP 2016] - 7
issue of the propriety of the denial. Indeed, the high Court went on in its opinion to
conclude that the statute was in fact repugnant to the United States Constitution and
granted petitioner relief. The high Court’s ruling, therefore, has no bearing on the
question of the preclusive effect of an order of a state’s highest court on further litigation
in the tribunals of that state, which is the issue we are considering in the present appeal.
Finally, I must respond to the OISA’s waiver and constitutional structure
arguments. The OISA claims that Appellants’ choice to seek extraordinary relief from
our Court at the time they originally commenced their action in the Commonwealth
Court somehow precluded them from further seeking relief in the Commonwealth Court
after our Court could not render a decision on their claims. The OISA deems
Appellants’ effort to seek a final determination from this Court regarding a paramount
question of constitutional interpretation “tactical litigation,” contending:
Appellants were given every opportunity to have the
Commonwealth Court adjudicate the substance of their legal
challenge to the ballot question, but Appellants voluntarily
and purposefully waived such opportunity by seeking this
Court’s extraordinary jurisdiction pursuant to Section 726 of
the Judicial Code . . . thereby forfeiting their right to appellate
review of an original jurisdiction decision.
OISA at 10. Respectfully, what Appellants were seeking from the Commonwealth Court
with their new filing in this matter was not appellate review of our per curiam order, but,
rather, what they have always requested: an adjudication on the merits.
When Appellants asked that our Court assume extraordinary jurisdiction, they did
so with the reasonable expectation our Court would resolve the constitutionality of this
ballot question with a ruling on the merits of their claims; however, our Court proved
unable to act. The OISA’s assertion that Appellants’ right to have this matter now heard
in the Commonwealth Court was forfeited, even though our Court was unable to render
a decision on the merits of their claims, is unsupported by either Article V, Section 2(a)
[100 MAP 2016] - 8
of our Constitution, the plain language of Section 726 of the Judicial Code, prior
precedent from our Court, or the language of our per curiam order in Sprague I. Indeed,
Section 726 affords our Court maximum flexibility after we have exercised our
extraordinary jurisdiction to “otherwise cause right and justice to be done.” 42 Pa.C.S.
§ 726. Here, causing right and justice to be done requires an adjudication of this
important issue on the merits.
Furthermore, while it is certainly true that Article V, Section 2(a) of our
Constitution vests the supreme judicial power of the Commonwealth in this Court, as the
OISA avers, the vesting of such great power in our Court also creates the highest
obligation to exercise that power to achieve fundamental justice, not only for the
individual litigants, but for all of the people of this Commonwealth. Instead, we are
permitting the Commonwealth Court’s erroneous decision on res judicata to stand, and
a constitutional question to go unanswered.
Today, as in Sprague I, this Court is deadlocked, for reasons I again find hard to
fathom. Although the present issue before us is a purely procedural one, by contrast,
the underlying constitutional question could not be more important, as it concerns the
people’s power to amend their Constitution, and specifically the question of whether
they have been fairly, completely, and accurately apprised of a proposed change to our
charter. With today’s inaction by this Court, it appears that the present parties, and
more importantly the public, will go to the polls on November 8 without ever receiving an
answer to that fundamental question.
Justices Dougherty and Wecht join this opinion.
[100 MAP 2016] - 9