Senator Jay Costa v. Sec. Pedro A. Cortes

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Pa. 43rd District, :
Senator Daylin Leach, Pa. 17th District, :
in their Official Capacities, and :
Senator Christine M. Tartaglione, Pa. :
2nd District, in her Official Capacity :
and individually on behalf of qualified :
electors in the Commonwealth of :
Pennsylvania, :
Petitioners :
:
v. : No. 251 M.D. 2016
: Argued: June 9, 2016
Secretary Pedro A. Cortes, Senator :
Joseph B. Scarnati, Pa. 25th District, :
and Senator Jacob Corman III, :
Pa. 34th District, each in their :
Official Capacities, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY JUDGE BROBSON FILED: July 6, 2016
Before the Court are cross-applications for summary relief filed by the
Honorable Jay Costa, the Honorable Daylin Leach, and the Honorable Christine M.
Tartaglione,1 duly-elected members of the Pennsylvania Senate (Petitioners), and
by the Honorable Joseph B. Scarnati and the Honorable Jacob Corman III, also
duly-elected members of the Pennsylvania Senate (Respondents). The
1
Senator Tartaglione brings this action not only in her official capacity but also as an
individual.
cross-applications are filed in response to Petitioners’ amended petition for review
in the nature of a complaint for declaratory and equitable relief, challenging House
Resolution 783 of 2016 (H.R. 783).2 This case involves the extent of the General
Assembly’s powers under Article XI, section 1 of the Pennsylvania Constitution,
which provides, in relevant part:
Amendments to this Constitution may be proposed
in the Senate or House of Representatives; and if the
same shall be agreed to by a majority of the members
elected to each House, such proposed amendment or
amendments shall be entered on their journals with the
yeas and nays taken thereon, and the Secretary of the
Commonwealth shall cause the same to be published
three months before the next general election, in at least
two newspapers in every county in which such
newspapers shall be published; and if, in the General
Assembly next afterwards chosen, such proposed
amendment or amendments shall be agreed to by a
majority of the members elected to each House, the
Secretary of the Commonwealth shall cause the same
again to be published in the manner aforesaid; and such
proposed amendment or amendments shall be submitted
to the qualified electors of the State in such manner, and
at such time at least three months after being so agreed to
by the two Houses, as the General Assembly shall
prescribe; and, if such amendment or amendments shall
be approved by a majority of those voting thereon, such
amendment or amendments shall become a part of the
Constitution; but no amendment or amendments shall be
submitted oftener than once in five years. When two or
more amendments shall be submitted they shall be voted
upon separately.
2
Although Petitioners filed the amended petition for review after the filing of the
cross-applications for summary relief, the parties have had the opportunity to address the
amended petition for review in their filings.
2
At issue is whether and, if so, when the General Assembly may, by concurrent
resolution, withdraw a proposed constitutional amendment placed on a primary
election ballot and place the same proposed constitutional amendment on the next
general election ballot. We now deny Petitioners’ application for summary relief,
grant Respondents’ application for summary relief, and enter judgment in favor of
Respondents.
I. BACKGROUND
H.R. 783 is a concurrent resolution adopted by majority votes in both
the Pennsylvania House of Representatives, on April 6, 2016, and the Pennsylvania
Senate, on April 11, 2016. Among other things, H.R. 783 purports to remove
“Proposed Constitutional Amendment 1” from the April 26, 2016 General Primary
Election (2016 Primary Election) ballot (April 2016 Ballot) and place the same on
the November 8, 2016 General Election (2016 General Election) ballot (November
2016 Ballot). Proposed Constitutional Amendment 1, if approved by electors,
would amend section 16(b) of Article V of the Pennsylvania Constitution to
provide that Pennsylvania justices, judges, and magisterial district judges be retired
on the last day of the calendar year in which they attain the age of 75.3
This case does not concern the legal validity of the processes and
procedures followed by the General Assembly, the Secretary, and the Attorney
General of Pennsylvania in securing Proposed Constitutional Amendment 1’s place
on the April 2016 Ballot.4 Instead, Petitioners commenced this action in this
3
Section 16(b) of Article V of the Pennsylvania Constitution currently provides that
Pennsylvania justices, judges, and magisterial district judges be retired on the last day of the
calendar year in which they attain the age of 70.
4
There is no dispute that the constitutional and statutory requirements for placing the
proposed constitutional amendment on the April 2016 Ballot had been met prior to the General
(Footnote continued on next page…)
3
(continued…)
Assembly’s passage of H.R. 783. As required by Article XI, section 1 of the Pennsylvania
Constitution, the House of Representatives, on June 28, 2013, approved a resolution placing a
ballot question before the qualified electors. The ballot question proposed an amendment to
Article V, section 16(b) of the Pennsylvania Constitution, which would raise the mandatory
judicial retirement age to 75. See Pa. House Bill 79 Session of 2013 (H.B. 79). On
October 15, 2013, the Senate approved the joint resolution, and, on October 22, 2013, the joint
resolution was filed with the Secretary as “Pamphlet Law Resolution No. 3.” See Legis. Hist. of
H.B. 79. Thereafter, as directed by H.B. 79 and as mandated by Article XI, section 1, the
Secretary advertised this first passage of the proposed constitutional amendment. On
November 17, 2015, both the House of Representatives and Senate approved a joint resolution
representing the necessary second passage of the proposed constitutional amendment. See Pa.
House Bill 90 Session of 2015 (H.B. 90). Consistent with H.B. 90 and Article XI, section 1, the
Secretary advertised the proposed amendment for the second time. This advertisement included
a “plain English” summary of the proposed amendment, prepared by the Office of Attorney
General (OAG). Thereafter, the Secretary submitted the proposed constitutional amendment to
the Commonwealth’s qualified electors as a ballot question for the 2016 Primary Election, as
mandated by H.B. 90.
Several events occurred following the Secretary’s submission of the proposed
constitutional amendment. On March 6, 2016, Respondent Senators filed an emergency
application requesting that the Pennsylvania Supreme Court act in its King’s Bench jurisdiction
to alter the wording of the proposed constitutional amendment, which at that time read:
Shall the Pennsylvania Constitution be amended to require that justices of the
Supreme Court, judges and justices of the peace (known as magisterial district
judges) be retired on the last day of the calendar year in which they attain the age
of 75 years, instead of the current requirement that they be retired on the last day
of the calendar year in which they attain the age of 70.
Respondent Senators sought to alter the proposed constitutional amendment to read:
Shall the Pennsylvania Constitution be amended to require that judges and
justices of the peace be retired on the last day of the calendar year in which they
attain the age of 75 years.
By per curiam order, dated March 23, 2016, our Supreme Court denied any relief. In apparent
response, on April 6, 2016, the House of Representatives approved H.R. 783, which the Senate
adopted on April 11, 2016. Petitioners then filed the action now before the Court. Petitioners
sought preliminary injunctive relief, which the Court, by the Honorable P. Kevin Brobson,
denied by order dated April 20, 2016, amended April 28, 2016. In its opinion, the Court advised
the Secretary to work with the county boards of elections to notify voters “that Proposed
(Footnote continued on next page…)
4
Court’s original jurisdiction to challenge the legal validity of H.R. 783, the
operative clauses of which provide:
RESOLVED (the Senate concurring), That the
Secretary of the Commonwealth remove the ballot
question for Proposed Constitutional Amendment 1 from
the ballot certification for the primary election on
April 26, 2016; and be it further
RESOLVED, That the county boards of election
remove, to the extent possible, the ballot question for
Proposed Constitutional Amendment 1 from the ballot;
and be it further
RESOLVED, That the [S]ecretary disregard any
vote on Proposed Constitutional Amendment 1 in the
primary election on April 26, 2016, and the [S]ecretary
not make a tally of votes cast on Proposed Constitutional
Amendment 1; and be it further
RESOLVED, That the General Assembly direct
the [S]ecretary to place Proposed Constitutional
Amendment 1 on the ballot for the general election on
November 8, 2016, in the following form:
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?;
and be it further
RESOLVED, That, to ensure compliance with
section 1 of Article XI of the Constitution of
(continued…)
Constitutional Amendment 1 is not on the April 2016 Ballot, regardless of what the actual ballot
may say, and that any votes cast on that question will not be canvassed, counted, or tabulated.”
Costa v. Cortes (Pa. Cmwlth., No. 251 M.D. 2016, filed April 20, 2016), slip op. at 20-21,
amended April 28, 2016.
5
Pennsylvania, the General Assembly direct the
[S]ecretary to publish the ballot question for Proposed
Constitutional Amendment 1 as revised along with the
proposed amendment and the plain English statement
previously prepared by the Office of Attorney General, in
each of the three months prior to the general election on
November 8, 2016; and be it further
RESOLVED, That, upon passage by a majority of
both houses of the General Assembly, this concurrent
resolution be transmitted to the Secretary of the
Commonwealth for implementation.
In Count I of their amended petition for review, Petitioners contend
that H.R. 783 violates Article III, section 9 of the Pennsylvania Constitution,
because it was not presented to the Governor for approval. In Count II, Petitioners
contend that H.R. 783 unconstitutionally infringes on the rights of qualified
electors who have or will cast their votes in the 2016 Primary Election by absentee
ballot. In Count III, Petitioners essentially request preliminary injunctive relief,
which this Court denied by order dated April 20, 2016. In Count IV, Petitioners
seek mandamus relief in the form of an “[o]rder requiring the Secretary to accept,
count and certify the votes on the ballot question proposing the amendment to
[section] 16(b) cast in the April 26, 2016 primary election.” (Amended Petition for
Review, ¶93.) In Count V of the Amended Petition for Review, Petitioners allege
a violation of Article XI, section 1 of the Pennsylvania Constitution, contending
that H.R. 783 violates the mandatory advertising requirements of that section.
Finally, in Count VI, Petitioners contend that H.R. 783 violates Article III,
section 3 of the Pennsylvania Constitution, which requires that any legislative act
of the General Assembly be restricted to a single subject.
6
II. ISSUES PRESENTED
Petitioners and Respondents have filed cross-applications for
summary relief under Pa. R.A.P. 1532(b). Petitioners frame the issues to be
decided, as follows: (1) whether the General Assembly violated Article III,
section 9 of the Pennsylvania Constitution when it used a concurrent resolution to
direct the Secretary of the Commonwealth to remove Proposed Constitutional
Amendment 1 from the April 2016 Ballot (Count I); (2) whether H.R. 783 violates
Article XI, section 1 of the Pennsylvania Constitution by interfering with the
three-month advertising requirement of that section (Count V); (3) whether
H.R. 783 violates the single-subject requirement of Article III, section 3 of the
Pennsylvania Constitution (Count VI); and (4) whether H.R. 783 violates
Article XI of the Pennsylvania Constitution by impermissibly disenfranchising the
voters of this Commonwealth (Count II). Respondents, by contrast, frame the
matter as involving but a single question—i.e., whether the General Assembly
permissibly used a concurrent resolution to move Proposed Constitutional
Amendment 1 to the November 2016 Ballot, “where Article XI, section 1 of the
Pennsylvania Constitution vests the General Assembly with the exclusive authority
to determine the time and manner of submitting constitutional amendments to the
electorate.” (Respondents’ Br. at 2.)
In addition to setting forth arguments in their favor for the issues
framed by Petitioners, Respondents argue that Petitioners are not entitled to
mandamus relief as a matter of law, and, therefore, their count for mandamus relief
(Count IV), in which Petitioners seek to compel the Secretary to certify the results
of the 2016 Primary Election with respect to Proposed Constitutional
Amendment 1, must fail. The Secretary has not filed an application for summary
7
relief. The Secretary has, however, filed a brief in response to Petitioners’
application for summary relief, in which the Secretary asserts the same or similar
arguments as Respondents.
III. DISCUSSION
A. Governing Legal Standards
In evaluating a request for summary relief, the Court applies the same
standards that apply on summary judgment. See Myers v. Commonwealth,
128 A.3d 846, 849 (Pa. Cmwlth. 2015). Summary relief under Pa. R.A.P. 1532(b),
therefore, is appropriate where the moving “party’s right to judgment is clear . . .
and no issues of material fact are in dispute.” McGarry v. Pa. Bd. of Prob. and
Parole, 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003).
“In a case like this one, which calls upon the court to construe an
Article of the Pennsylvania Constitution, the fundamental rule of construction
which guides us is that the Constitution’s language controls and must be
interpreted in its popular sense, as understood by the people when they voted on its
adoption.” Ieropoli v. AC&S Corp., 842 A.2d 919, 925 (Pa. 2004). Thus, a
provision of the Constitution “will be interpreted, not in a strained or technical
manner, but as understood by the people who adopted it.” Blum by Blum v.
Merrell Dow Pharm., Inc., 626 A.2d 537, 546 (Pa. 1993). Furthermore, the
various principles of statutory construction apply with equal force in interpreting
the Pennsylvania Constitution. Booth & Flinn v. Miller, 85 A. 457, 459 (Pa. 1912)
(“The established rules of construction applicable to statutes apply also in the
construction of a Constitution.”). To that end, we observe that pursuant to
Section 1922(3) of the Statutory Construction Act of 1971 (Statutory Construction
Act), 1 Pa. C.S. § 1922(3), there is a presumption that “the General Assembly does
not intend to violate the Constitution . . . of this Commonwealth.” Given the
8
strong presumption of constitutionality under Section 1922(3), “[a] party
challenging an act has a heavy burden of persuasion[,]” and “[l]egislation will not
be invalidated unless it clearly, palpably and plainly violates the Pennsylvania
Constitution.” League of Women Voters of Pa. v. Commonwealth, 692 A.2d 263,
269-70 (Pa. Cmwlth. 1997). “[A]ny doubts are to be resolved in favor of a finding
of constitutionality.” Id. at 270. Although Section 1922(3) applies to the
construction of statutes, as noted above those same principles apply to the
construction of constitutional provisions. See Booth & Flinn, 85 A. at 459.
Notwithstanding the applicability of statutory construction principles
in general,
[o]ur Supreme Court has repeatedly stated that “nothing
short of literal compliance” with this detailed process for
the amendment of the fundamental law of our
Commonwealth will suffice. Also, our Supreme Court
has made clear that the analytical model for deciding a
challenge to the enactment of constitutional amendments
is not based on the substantial deference afforded to the
adoption of legislation.
Bergdoll v. Commonwealth, 858 A.2d 185, 193-94 (Pa. Cmwlth. 2004), aff’d,
874 A.2d 1148 (Pa. 2005) (internal citations omitted).
B. Challenge to the Form of H.R. 783 (Count I)
First, we address Petitioners’ argument that the General Assembly
impermissibly used a concurrent resolution to direct the Secretary of the
Commonwealth to remove Proposed Constitutional Amendment 1 from the
April 2016 Ballot in violation of Article III, section 9 of the Pennsylvania
Constitution. Article III, section 9 provides:
Every order, resolution or vote, to which the concurrence
of both Houses may be necessary, except on the question
of adjournment, shall be presented to the Governor and
9
before it shall take effect be approved by him, or being
disapproved, shall be repassed by two-thirds of both
Houses according to the rules and limitations prescribed
in case of a bill.
Petitioners contend that once the General Assembly passed Proposed
Constitutional Amendment 1 by joint resolution for the second time, the Secretary
was required to publish the proposed amendment and submit it to the qualified
electors of the State pursuant to Article XI, section 1 of the Pennsylvania
Constitution. It is undisputed that the Secretary complied with the publication
requirements of Article XI, section 1 of the Pennsylvania Constitution with respect
to the submission of Proposed Constitutional Amendment 1 to the electors on the
April 2016 Ballot. The passage of H.R. 783, and this Court’s refusal to enjoin its
implementation, removed the question from the April 2016 Ballot.5
Petitioners assert that the General Assembly, through H.R. 783,
created an “entirely different species of legislative action” not contemplated under
the General Assembly’s Article XI, section 1 power, by: (1) directing the
Secretary to remove Proposed Constitutional Amendment 1 from the April 2016
5
As we observed in footnote 4 above, the General Assembly followed the mandates of
Article XI, section 1 of the Pennsylvania Constitution in adopting H.B. 79 and H.B. 90 through
two joint resolutions. Joint resolutions are the proper mechanism for placing proposed
constitutional amendments on a future ballot for the electorate’s consideration. See West Shore
Sch. Dist. v. Pa. Labor Relations Bd., 570 A.2d 1354, 1357 (Pa. Cmwlth. 1990) (“The General
Assembly uses joint resolutions for the sole purpose of proposing constitutional amendments.”),
remanded sub nom. Blackwell v. Commonwealth, State Ethics Comm’n, 589 A.2d 1094
(Pa. 1991). Concurrent resolutions are commonly used “for recalling a bill from the Governor or
the other house, returning a bill to the Governor, adjournments sine die or in excess of three
days, recesses in excess of a week and memorializing Congress.” 101 Pa. Code § 9.43(b).
Traditionally, concurrent resolutions have not required approval of the Governor, because they
were not considered an exercise of legislative power. See, e.g., Commonwealth v. Kuphal,
500 A.2d 1205, 1206-07 (Pa. Super. 1985).
10
Ballot; (2) directing the county boards of elections to remove, to the extent
possible, Proposed Constitutional Amendment 1 from the April 2016 Ballot;
(3) directing the Secretary to disregard any vote on Proposed Constitutional
Amendment 1 in the primary election; (4) prohibiting “the Secretary from making
any ‘tally of votes cast on Proposed Constitutional Amendment 1’” for
the 2016 Primary Election; and (5) directing “the Secretary to alter the ballot
question’s language” from that which he drafted on his own accord and placed on
the April 2016 Ballot.” (Petitioners’ Br. at 24-25.) Petitioners assert that nothing
in Article XI, section 1, provides the General Assembly with the authority to direct
the Secretary to remove ballot questions from the ballot once the Secretary has
placed the question on the ballot, disregard an election return, prohibit the
Secretary from tallying votes, or compel the Secretary to alter the language of a
ballot question on a proposed amendment. Rather, Petitioners contend that
pursuant to Article III, section 9 of the Pennsylvania Constitution the substance of
H.R. 783 should have been presented to the Governor for approval as a legislative
bill. Petitioners contend that fundamental separation of powers concerns require
each branch of government to operate within its own “separate sphere of power.”
Jefferson Cnty. Court Appointed Employees Ass’n v. Pa. Labor Relations Bd.,
985 A.2d 697, 706 (Pa. 2009). Based on that reasoning, Petitioners contend that
the General Assembly could not alter the constitutional amendment process that it
set in motion with respect to Proposed Constitutional Amendment 1 without
proceeding under Article III, section 9, because Article XI, section 1 does not
authorize the actions contained in H.R. 783.
Petitioners next address the “time” and “manner” power in Article XI,
section 1 of the Pennsylvania Constitution, which provides that any proposed
11
constitutional amendment “shall be submitted to the qualified electors of the State
in such manner, and at such time at least three months after being so agreed to by
the two Houses, as the General Assembly shall prescribe.” Petitioners argue that
even if portions of H.R. 783 could be derived from this power, such that it need not
be approved by the Governor, H.R. 783’s directives to the Secretary fall outside of
this power because they are in conflict with what is commonly referred to as the
Election Code.6 Petitioners contend that the Election Code “sets forth the specific
contours of the General Assembly’s authority to issue directives to the Secretary as
an Executive Department official. As that authority derives from the Election
Code, H.R. 783 could not alter it without resort to the legislative procedures
mandated in Article III.” (Petitioners’ Br. at 27.) They note that “[b]ecause a
resolution does not have the force and effect of law, our Supreme Court has always
held that the General Assembly cannot use this legislative device as a substitution
for a law.” West Shore Sch. Dist. v. Pa. Labor Relations Bd., 570 A.2d 1354, 1357
(Pa. Cmwlth. 1990), remanded sub nom. Blackwell v. Commonwealth, State Ethics
Comm’n, 589 A.2d 1094 (Pa. 1991). Petitioners contend that H.R. 783 purports to
prohibit the Secretary from complying with his duties under Section 201(c) of the
Election Code, as amended, 25 P.S. § 2621(c), relating to certification to county
boards of elections of “the form and wording of constitutional amendments and
other questions to be submitted to the electors of the State at large,” and
Section 201(f) of the Election Code, as amended, 25 P.S. § 2621(f), which requires
the Secretary to “canvass and compute the votes cast . . . upon questions as
required by the provisions of this act” and “to proclaim the results of such
6
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
12
primaries and elections.” Finally, Petitioners contend that under Section 605 of the
Election Code, 25 P.S. § 2755, the form of the ballot question is to be determined
by the Secretary and the Attorney General and not by the General Assembly. With
respect to each of these statutory provisions, Petitioners contend that
H.R. 783 affects a change to the law, which can only be accomplished by
legislative bill and through the procedures set forth in Article III of the
Pennsylvania Constitution.
Respondents counter that it is well-established that Article III of the
Pennsylvania Constitution applies only to legislation and is thus inapplicable to the
process for amending the Constitution. Instead Article XI, section 1 of the
Pennsylvania Constitution provides the “complete and detailed process” for
amending the Constitution. Kremer v. Grant, 606 A.2d 433, 436 (Pa. 1992).
Article XI, section 1 exclusively commits to the General Assembly the power to
“prescribe” the “manner” and “time” under which the proposed constitutional
amendments “shall be submitted to the qualified electors” of the Commonwealth.
See Pa. Const. art. XI, § 1. Nothing in Article XI, section 1, however, mandates
how the General Assembly must “prescribe” the time at which and manner by
which a proposed constitutional amendment will be submitted to the electorate—
i.e., whether the General Assembly must do so by joint resolution, concurrent
resolution, or otherwise. Rather, the only requirement under Article XI, section 1
is that “a majority of the members elected to each House” agree to the time and
manner prescription, which Respondents contend occurred through H.R. 783.
Thus, Respondents contend that whether the General Assembly passed a joint
resolution or concurrent resolution is irrelevant to Article XI, section 1, as both
comply with the constitutional requirements set forth therein.
13
Respondents dispute the General Assembly’s characterization of
H.R. 783 as representing “an entirely different species of legislative action.”7 They
emphasize that Article XI, section 1 expressly empowers the General Assembly to
direct the Secretary when (time) and how (manner) to submit a proposed
constitutional amendment to the qualified electors of the Commonwealth, with the
only limit being that it may not be submitted before three months after being
agreed to by both Houses (presumably to allow the Secretary to satisfy the
publication requirements). Moreover, Respondents note that Section 605 of the
Election Code is consistent with Article XI, section 1 of the Pennsylvania
Constitution, in that it too exclusively commits to the General Assembly the power
to “prescribe” the “manner and time of submitting to the qualified electors of the
State any proposed amendment or amendments to the Constitution for the purpose
of ascertaining whether the same shall be approved by a majority of those voting
thereon.” Accordingly, Respondents maintain that the General Assembly has acted
consistent with both the Pennsylvania Constitution and the Election Code by
directing the time at which and manner by which the Secretary is to submit
Proposed Constitutional Amendment 1 to the electors of the Commonwealth, and,
the Secretary has the legal obligation under both to follow the prescriptions.
Because the General Assembly exercised powers committed exclusively to it,
Respondents argue there can be no violation of the separation of powers, and
Article III, section 9 is inapplicable.
We now hold that H.R. 783 was a valid exercise of the General
Assembly’s exclusive power under Article XI, section 1 of the Pennsylvania
7
(Respondents’ Br. at 13 (quoting Petitioners’ Br. at 24).)
14
Constitution to prescribe both the time at which and manner by which the
Secretary is to submit Proposed Constitutional Amendment 1 to the qualified
electors of this Commonwealth for their consideration. The Pennsylvania Supreme
Court has recognized that Article XI, section 1 of the Pennsylvania Constitution
provides the “complete and detailed process for the amendment of that
document.”8 See Kremer, 606 A.2d at 436. In Mellow v. Pizzingrilli,
800 A.2d 350 (Pa. Cmwlth. 2002) (en banc), we explained:
Because a proposed constitutional amendment is
not a “law,” the provisions of Article III relating to the
enactment of legislation are inapplicable. . . . In this
respect, [amendment of the Pennsylvania Constitution] is
not a legislative act at all, but a separate and specific
power granted to the General Assembly, similar to the
impeachment and trial powers granted to the House of
Representatives and Senate, respectively, under
Article VI, Sections 4 and 5. As to the impeachment
power, we have held that the trial procedures are within
the exclusive power of the Senate and are not subject to
invasion by the Courts. Similarly, we believe that
Article XI has vested the power to propose amendments
in the General Assembly. Other than the express
requirements set forth in Article XI, the procedure to be
used in proposing such amendments is exclusively
committed to the legislature.
Mellow, 800 A.2d at 359 (citations omitted); see also Grimaud v. Commonwealth,
806 A.2d 923 (Pa. Cmwlth. 2002) (en banc) (following Mellow), aff’d,
865 A.2d 835 (Pa. 2005).
8
Our reasoning is consistent with the Court’s opinion and order, dated April 20, 2016,
amended April 28, 2016, in which the Court denied Petitioners’ application for special relief in
the nature of a preliminary injunction.
15
Although Mellow addressed challenges regarding only the “manner”
of amendments, it is nevertheless instructive here. In Mellow, we considered
several challenges to two constitutional amendments approved by the electorate
during the May 2001 Primary Election. In one of the challenges, the petitioners in
that case contended that one of the amendments should be set aside because the
joint resolutions passed in 1998 and 2000 by the General Assembly did not contain
identical language. This Court rejected that argument, refusing to curb the General
Assembly’s power under Article XI, section 1 beyond the express limits set forth
in that constitutional provision. “Because Article XI does not require identical
language or content in the resolutions (as opposed to the proposed amendment
itself),” we opined “there is no constitutional violation.” Mellow, 800 A.2d at 359.
By its express terms, H.R. 783 sets both the time at which and manner
by which Proposed Constitutional Amendment 1 is to be submitted to the
electorate in that it removes the question from the April 2016 Ballot and moves the
question to the November 2016 Ballot. Under Mellow, the power of the General
Assembly to set the time at which and manner by which amendments to the
Pennsylvania Constitution are to be submitted to the electorate is an Article XI,
section 1 power. Pursuant to Article XI, section 1 of the Pennsylvania
Constitution, the power granted therein is exclusive to the General Assembly. The
only express constitutional limitation on time is that it must be submitted at least
three months after final agreement by the two houses of the General Assembly,
which is not at issue here.9 Id. We agree with Respondents that nothing in
9
H.R. 783 expressly provides for the re-publication and re-advertising of Proposed
Constitutional Amendment 1, as well as the plain English statement of the OAG, in each of the
three months prior to the 2016 General Election. Thus, even though the Secretary already had
(Footnote continued on next page…)
16
Article XI, section 1 mandates how the General Assembly must “prescribe” the
time at which and manner by which a proposed constitutional amendment will be
presented to the electorate. Thus, it is immaterial whether the General Assembly
did so by joint or concurrent resolution, so long as “a majority of the members
elected to each House” agreed to the time and manner prescription.10 Id.
Even if we were to agree with Petitioners’ general proposition that the
General Assembly could not use H.R. 783 to impose directives on the Secretary
that are inconsistent with the Secretary’s directives set forth in the Election Code,
we conclude that H.R. 783 is not so flawed. First, H.R. 783 does not alter the
duties of the Secretary or prohibit the Secretary from complying with his duties
under Section 201(c) of the Election Code. Section 201(c) of the Election Code
requires the Secretary to do the following:
To certify to county boards of elections for
primaries and elections the names of the candidates for
President and Vice-President of the United States,
presidential electors, United States senators,
representatives in Congress and all State offices,
including senators, representatives, and judges of all
courts of record, and delegates and alternate delegates to
National conventions, and members of State committees,
(continued…)
complied with the publication and advertisement requirements of Article XI, section 1 of the
Pennsylvania Constitution in advance of the 2016 Primary Election, the General Assembly took
this additional step to ensure notice to the electorate by directing the Secretary to re-publish and
re-advertise. In his papers submitted to the Court, the Secretary has indicated his intentions to
re-publish and re-advertise.
10
As this Court in Mellow observed, “[i]ndeed, the General Assembly may properly
choose to consider a proposed constitutional amendment under the title of a ‘bill,’ ‘act,’
‘resolution,’ or a ‘mystery wrapped in an enigma,’ a title that might be more forthright in many
instances.” Mellow, 800 A.2d at 359 n.11.
17
and the form and wording of constitutional amendments
or other questions to be submitted to the electors of the
State at large.
(Emphasis added.) On this issue, H.R. 783 provides that “the Secretary of the
Commonwealth [shall] remove the ballot question for Proposed Constitutional
Amendment 1 from the ballot certification for the primary election on
April 26, 2016.” As a result of H.R. 783, which this Court refused to enjoin
preliminarily, Proposed Constitutional Amendment 1 was not a question submitted
to the electorate on the April 2016 Ballot. Clearly, Section 201(c) of the Election
Code does not empower the Secretary to certify to the county boards of elections
the form and wording of a constitutional amendment that is not to be submitted to
the electors of the State at large. Thus, H.R. 783 appears to do nothing more than
echo existing law with respect to the Secretary’s duties.
Second, H.R. 783 does not alter the duties of the Secretary or prohibit
the Secretary from complying with his duties under Section 201(f) of the Election
Code. Section 201(f) of the Election Code, requires the Secretary to “canvass and
compute the votes cast . . . upon questions as required by the provisions of this act”
and “to proclaim the results of such primaries and elections.” On this subject,
H.R. 783 provides: “RESOLVED, That the [S]ecretary disregard any vote on
Proposed Constitutional Amendment 1 in the primary election on April 26, 2016,
and the [S]ecretary not make a tally of votes cast on Proposed Constitutional
Amendment 1.” (Emphasis added.) Like our analyses above, we look to
Section 201(f) of the Election Code and what it does and does not require of the
Secretary. By its terms, Section 201(f) of the Election Code only requires the
Secretary to canvass and compute the votes cast on questions lawfully placed
before the electorate—i.e., “questions as required by the” Election Code. In light
of H.R. 783, Proposed Constitutional Amendment 1 was not a question submitted
18
to the electorate, regardless of its presence on some ballots. Thus, the Secretary is
under no legal obligation to “canvass and compute” votes cast on Proposed
Constitutional Amendment 1 during the 2016 Primary Election. A corollary to this
legal conclusion is that the Secretary has no authority to canvass and compute
votes cast on a question that is not before the electorate.
Finally, we address Petitioners’ claim that H.R. 783 alters the duties
of the Secretary or prohibits the Secretary from complying with his duties under
Section 605 of the Election Code. Section 605 of the Election Code provides, in its
entirety:
Unless the General Assembly shall prescribe
otherwise with respect to any particular proposed
amendment or amendments and the manner and time of
submitting to the qualified electors of the State any
proposed amendment or amendments to the Constitution
for the purpose of ascertaining whether the same shall be
approved by a majority of those voting thereon, the said
amendment or amendments which have heretofore, or
which may hereafter be proposed, and which have not
been submitted to the qualified electors of the State, shall
be submitted to the qualified electors of the State for the
purpose aforesaid, at the first municipal or general
election at which such amendment or amendments may
be legally submitted to the electors, which election shall
occur at least three months after the date upon which
such proposed amendment or amendments shall have
been agreed to for the second time by a majority of the
members elected to each house of the General Assembly,
as provided in Article Eighteen,[11] section one of the
Constitution. Said election shall be conducted on said
election day in the manner prescribed by the provisions
of this act. Such proposed constitutional amendments
shall be printed on the ballots or ballot labels in brief
11
Renumbered as Pa. Const. art. XI, § 1.
19
form to be determined by the Secretary of the
Commonwealth with the approval of the Attorney
General.
(Emphasis added.) Although not as developed as some of Petitioners’ other
arguments, Petitioners appear to challenge the ability of the General Assembly,
through its Article XI, section 1 “time” and “manner” power, to set the form, or
wording, of the constitutional amendment submitted to the electorate. In other
words, Petitioners appear to raise a conflict between H.R. 783 and Section 605 of
the Election Code.
During oral argument in this matter, the Court expressed concern to
the parties that such a conflict could arise if either the Secretary or the Attorney
General rejected the form of Proposed Constitutional Amendment 1 set forth in
H.R. 783. In his filings with the Court in this matter, however, the Secretary has
indicated that he will follow the form of the question set forth in H.R. 783.
(Secretary’s Br. at 3, 22.) In addition, the Secretary, through his application for
leave to file post-submission communication, which the Court granted, submitted a
letter by Solicitor General Bruce L. Castor, Jr., dated June 14, 2016, wherein the
Solicitor General, on behalf of the OAG, conveyed his approval of the form of
Proposed Constitutional Amendment 1, as set forth in H.R. 783. In light of these
facts, the debate over whether H.R. 783 conflicts with Section 605 of the Election
Code with respect to the form of the ballot question has become academic.
As a general rule, courts will not decide moot cases. “[A] case is
moot if there is no actual case or controversy in existence at all stages of the
controversy.” Phila. Pub. Sch. Notebook v. Sch. Dist. of Phila., 49 A.3d 445, 448
(Pa. Cmwlth. 2012). As this Court explained in Philadelphia Public School
Notebook:
20
Mootness problems arise in cases involving litigants who
clearly had one or more justiciable matters at the outset
of the litigation, but events or changes in the facts or law
occur which allegedly deprive the litigant of the
necessary stake in the outcome after the suit is underway.
Id. It is well settled that the courts “do not render decisions in the abstract or offer
purely advisory opinions.” Pittsburgh Palisades Park, LLC v. Commonwealth,
888 A.2d 655, 659 (Pa. 2005). Judicial intervention “is appropriate only where the
underlying controversy is real and concrete, rather than abstract.” City of
Philadelphia v. Commonwealth, 838 A.2d 566, 577 (Pa. 2003).
As with most rules of general application, there are exceptions to the
mootness doctrine for circumstances where “(1) the conduct complained of is
capable of repetition yet evading review, or (2) involves questions important to the
public interest, or (3) will cause one party to suffer some detriment without the
Court’s decision.” Cytemp Specialty Steel Div., Cyclops Corp. v. Pa. Pub. Util.
Comm’n, 563 A.2d 593, 596 (Pa. Cmwlth. 1989). Notwithstanding these
exceptions, however, we note that “‘[c]onstitutional questions are not to be dealt
with abstractly.’” Wortex Mills v. Textile Workers Union of Am., 85 A.2d 851, 857
(Pa. 1952) (quoting Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 22
(1931); see In re Gross, 382 A.2d 116, 120 (Pa. 1978). This Court, therefore,
should be even more reluctant to decide moot questions which raise constitutional
issues. See id. Instead, we “prefer to apply the well-settled principles that [courts]
should not decide a constitutional question unless absolutely required to do so.”
Krenzelak v. Krenzelak, 469 A.2d 987, 991 (Pa. 1983); see also Atlantic–Inland,
Inc. v. Bd. of Supervisors of West Goshen Twp., 410 A.2d 380, 383 (Pa.
Cmwlth. 1980) (opining that “a court will not consider a constitutional issue unless
it is clearly necessary to do so to dispose of the case before it”).
21
Clearly, there is a prevailing debate over whether the General
Assembly has the power, under Article XI, section 1 of the Pennsylvania
Constitution and Section 605 of the Election Code, to set the form of the ballot
question to the exclusion of the Secretary and the Attorney General. There is,
however, no case or controversy because, in light of an intervening event—i.e.,
approval of the question by the OAG—resolution of that dispute will have no
bearing on the form of the question for Proposed Constitutional Amendment 1 on
the November 2016 Ballot. The issue, therefore, is moot. The Court declines to
consider the dispute under any of the exceptions to the mootness doctrine. The
General Assembly infrequently exercises its Article XI, section 1 power with
respect to constitutional amendments. If, in the context of future proposed
amendments, a dispute arises between the General Assembly, the Secretary, and/or
the Attorney General as to which has the ultimate power to set the form of the
ballot question to be presented to the electorate, we see no reason why such a
dispute could not be resolved at that time.
With respect to the great public importance exception, the
Pennsylvania Supreme Court has opined: “It is only in very rare cases where
exceptional circumstances exist or where matters or questions of great public
importance are involved, that this court ever decides moot questions or erects
guideposts for future conduct or actions.” Wortex Mills, 85 A.2d at 857. Although
the substance of Proposed Constitutional Amendment 1 is of great public
importance, we are not convinced that resolution of an abstract dispute over who
sets the form of the ballot question rises to such a level, particular where, as here,
the two branches of government that stand on opposite sides of this hypothetical
22
power struggle agree on the form of the question. We are not inclined to foment
discord where there is common ground.
As to the third exception to the mootness doctrine, no harm or
detriment will befall Petitioners if we do not resolve this question. As noted
above, the form of the question has been set and agreed to by all parties in
interest—the General Assembly, the Secretary, and the Attorney General.
Petitioners gain nothing and lose nothing by our refusal to decide this moot
question. Finally, resolution of this moot question involves consideration of the
General Assembly’s power under Article XI, section 1 of the Pennsylvania
Constitution. As noted above, we are reluctant to resolve constitutional issues in
the absence of a true case and controversy. Accordingly, Petitioners’ challenge to
H.R. 783 as presenting a conflict over which, as between the General Assembly or
the Secretary with the approval of the Attorney General, sets the form of Proposed
Constitutional Amendment 1 to be submitted to the qualified electors of this
Commonwealth is moot.
C. H.R. 783 and the Three-month Advertising Requirement
(Count V)
As discussed above, Article XI, section 1 of the Pennsylvania
Constitution provides, in relevant part, that following the passage of a proposed
constitutional amendment by a majority of the members of both houses of the
General Assembly in two consecutive sessions,
the Secretary of the Commonwealth shall cause the same
again to be published . . . and such proposed amendment
or amendments shall be submitted to the qualified
electors of the State in such manner, and at such time at
least three months after being so agreed to by the two
Houses, as the General Assembly shall prescribe.
23
With regard to the manner of publication, Article XI, section 1 of the Pennsylvania
Constitution provides that the proposed amendment “be published three months
before the next general election, in at least two newspapers in every county in
which such newspapers shall be published.”
Petitioners contend that H.R. 783 compels the Secretary to act
contrary to his duties under Article XI, section 1 of the Pennsylvania Constitution,
because it prevents him from completing the process to effect the proposed
amendment to the Pennsylvania Constitution in the time-frame initially established
by the General Assembly and as originally advertised. Petitioners disagree with
the Court’s earlier interpretation of Article XI,12 which recognized the General
Assembly’s exclusive authority over the time and manner of placing a proposed
amendment on the ballot as including the authority to move a proposed amendment
from a primary election to the next following general election. They argue that if
the General Assembly were to have unconstrained power over the “time” and
“manner” of the vote on a proposed amendment it could permanently remove a
proposed amendment from the ballot at any time before voting begins. Such
ability, according to Petitioners, would contravene the intentions of the framers of
Article XI.
Petitioners also observe that our Supreme Court has identified two
independent reasons for the requirement that there be statewide advertising of a
proposed amendment, specifically (1) to inform voters that a proposed
constitutional amendment will be placed on the next election ballot and to explain
12
Petitioners refer to the Court’s order dated April 20, 2016, amended April 28, 2016,
denying Petitioners’ application for special relief in the nature of a preliminary injunction.
24
the substance of the proposed amendment, and (2) to provide a three-month
window during which voters may ascertain the attitudes of the candidates with
regard to the proposed amendment. See Kremer, 606 A.2d at 438.13 With regard
to ascertaining attitudes, the three-month window enables the voters to have
sufficient time to determine how Senate and House candidates on that same ballot
voted on the proposed amendment. Under the current scenario, Petitioners contend
that, because H.R. 783 was not advertised, voters were not provided a sufficient
opportunity to determine which candidates voted to remove the proposed
amendment from the April 2016 Ballot. For these reasons, Petitioners urge the
Court to construe Article XI to prohibit any alteration of the vote on a proposed
amendment within three months of the originally prescribed election.
Respondents counter that Petitioners’ argument is based on the faulty
assumption that H.R. 783 is somehow subject to the advertising requirements of
Article XI, section 1 of the Pennsylvania Constitution. Respondents contend that,
by its express terms, Article XI, section 1 requires only publication of the
“proposed amendment or amendments.” Pa. Const. art. XI, § 1. Respondents
observe that Petitioners ignore that H.R. 783 expressly provides for the
re-publication and re-advertising of Proposed Constitutional Amendment 1, as well
as the “plain English” statement of the OAG, in each of the three months prior to
the 2016 General Election. Furthermore, Respondents observe that voters will
13
In Kremer, our Supreme Court wrote:
For if an informed electorate disagrees with the proposed amendments, they will
have an opportunity to indicate their displeasure at the ballot box and elect
individuals to the next General Assembly with different attitudes.
Kremer, 606 A.2d at 438.
25
have more than three additional months to research and perform due diligence as to
Proposed Constitutional Amendment 1 and candidates. Respondents agree that a
permanent removal of a proposed constitutional amendment arguably would be
contrary to Article XI, section 1, but they observe that no such permanent removal
is contemplated by H.R. 783.
We are unswayed by Petitioners’ concern that this Court’s
interpretation of the General Assembly’s “time” and “manner” power under
Article XI, section 1 is so unfettered that it would allow the General Assembly to
thereafter refuse to place a ballot question, passed by both Houses in two
consecutive legislative sessions, before voters in the next following general
election, at the latest. Indeed, such a scenario would not likely survive judicial
scrutiny. H.R. 783, however, provides that Proposed Constitutional Amendment 1
will be before voters for their consideration on the next general election ballot
following second consideration by both Houses of the General Assembly, that
being the November 2016 Ballot.
We are also unpersuaded by Petitioners’ argument that H.R. 783
violated the publications requirements of Article XI, section 1. Nothing in
Article XI, section 1 of the Pennsylvania Constitution requires publication or
advertising of H.R. 783. Two of the Secretary’s constitutional duties under
Article XI, section 1 are related to publication of proposed amendments following
each passage by the General Assembly. There is no contention in this case that the
Secretary failed to comply with those publication mandates. In fact, the record is
clear that Proposed Constitutional Amendment 1 was advertised in accordance
with Article XI, section 1. Moreover, under H.R. 783, Proposed Constitutional
Amendment 1 will be re-published and re-advertised, and voters will have
26
additional time to consider the amendment and the attitudes of candidates with
respect thereto, so the intent behind Article XI, section 1 will be fulfilled.
The Secretary’s third constitutional duty requires the Secretary to
place a proposed constitutional amendment before the electorate “in such manner,
and at such time at least three months after being so agreed to by the two Houses,
as the General Assembly shall prescribe.” Pa. Const. art. XI, § 1 (emphasis
added). It is implicit that the reason why the General Assembly and, by extension,
the Secretary must wait at least three months before putting the question before the
electorate is to provide sufficient time for the Secretary to comply with the
three-month advertising period described above. The General Assembly, through
H.R. 783, has set the 2016 General Election (the latest possible election) as the
time that Proposed Constitutional Amendment 1 should be placed before the
electorate. As of the date of this opinion, there is sufficient time for the Secretary
to re-publish and re-advertise consistent with Article XI, section 1 of the
Pennsylvania Constitution and the goals articulated by the Pennsylvania Supreme
Court in Kremer.
For these reasons, we conclude that H.R. 783 does not itself cause a
violation of the advertising requirements in Article XI, section 1 of the
Pennsylvania Constitution.
D. H.R. 783 and the Single-Subject Rule (Count VI)
Petitioners argue that if H.R. 783 is examined as if it were a bill,
rather than a concurrent resolution, it is facially deficient, as it impermissibly
covers more than one subject in violation of Article III, section 3, of the
Pennsylvania Constitution, relating to the “[f]orm of bills.” (Emphasis added.)
Article III, section 3 of the Pennsylvania Constitution provides:
27
No bill shall be passed containing more than one subject,
which shall be clearly expressed in its title, except a
general appropriation bill or a bill codifying or compiling
the law or a part thereof.
(Emphasis added.) Our Supreme Court has identified what it refers to as the “twin
requirements” of Article III, section 3, as the requirements “that each bill have only
one subject, and that the subject be clearly expressed in the title.” City of
Philadelphia, 838 A.2d at 585. In City of Philadelphia, our Supreme Court
described the reasons why Pennsylvanians incorporated Article III, section 3 into
the Pennsylvania Constitution of 1874, including distrust of corporate influence
upon the General Assembly and a resulting desire to make the deliberative process
of legislative enactment more visible to our citizens. Id. at 585-86. By adopting
Article III, section 3, Pennsylvanians sought to address a number of practices that
members of the General Assembly occasionally employed to obtain passage of
legislation without subjecting the legislation to an open and deliberative process.
In support of their argument that H.R. 783 violates the single-subject
requirement of Article III, section 3 of the Pennsylvania Constitution, Petitioners
contend that H.R. 783 attempts to, in part: (1) effect a change in time for the vote
on an amendment to Article V, section 16(b) of the Pennsylvania
Constitution; (2) direct action by a member of the executive branch—i.e., the
Secretary; and (3) modify portions of the Election Code for the primary and
general elections of 2016. Petitioners contend that H.B. 783 cannot do all three
and still comply with the single-subject requirement of the Pennsylvania
Constitution and, therefore, must be held unconstitutional in toto. In support of
this position, Petitioners rely on Pennsylvania State Association of Jury
Commissioners v. Commonwealth, 64 A.3d 611 (Pa. 2013), for the proposition that
28
the single-subject requirement is violated where dual functions of government are
addressed in the same bill.
Respondents counter that Article III, section 3 of the Pennsylvania
Constitution applies only to legislation and is inapplicable to the process for
amending the Constitution. Respondents further argue that even if H.R. 783 were
governed by Article III, section 3, H.R. 783 is limited to the single-subject matter
of prescribing the time and manner by which Proposed Constitutional
Amendment 1 is to be submitted to the electorate, and those functions
constitutionally rest with the General Assembly.
We agree with Respondents that H.R. 783 is not a legislative bill and,
therefore, is not governed by Article III. Rather, as discussed above, actions by the
General Assembly relating to the “time” and “manner” of amending the
Pennsylvania Constitution are governed exclusively by Article XI, section 1 of the
Pennsylvania Constitution, Mellow, which does not contain a single-subject
requirement.
Assuming, however, Article III, section 3 did apply, H.R. 783 would
pass constitutional muster under a single-subject analysis. The stated subject and
objective for H.R. 783 is “providing for submission to the electorate of a
constitutional amendment on retirement for justices, judges and justices of the
peace.” H.R. 783. All of the provisions of H.R. 783 assist in carrying out this
main objective and are otherwise germane to its stated subject matter. See City of
Philadelphia, 838 A.2d at 587 (“[T]he strictures of Article III, [s]ection 3 are often
satisfied where the provisions added during the legislative process assist in
carrying out a bill’s main objective or are otherwise ‘germane’ to the bill’s subject
as reflected in its title.”). Moreover, as noted above, any portions of H.R. 783 that
29
Petitioners characterize as “directives” to the Secretary merely recognize the
Secretary’s duties under Article XI, section 1 of the Pennsylvania Constitution or
the Election Code and do not change those duties.
For these reasons, we conclude that H.R. 783 does not violate the
single-subject requirement of Article III, section 3 of the Pennsylvania
Constitution.
E. H.R. 783 and Voter Disenfranchisement (Count II)
Petitioners’ argument as to why H.B. 783 disenfranchises voters has
changed over time. Originally, they argued that voters were disenfranchised
because some had cast absentee ballots at the time that H.B. 783 was passed. They
now argue that despite H.R. 783 and this Court’s refusal to enjoin its
implementation, many voters voted on Proposed Constitutional Amendment 1
during the 2016 Primary Election. Failure to count those votes, Petitioners argue,
equates to voter disenfranchisement. Petitioners theorize that the electorate will be
confused if asked again to vote on Proposed Constitutional Amendment 1 in a
revised form, given that voters may not vote on the same amendment within five
years. See Pa. Const. art. XI, § 1. Petitioners contend that election night results
from the 2016 Primary Election show that a majority of voters rejected Proposed
Constitutional Amendment 1 and that H.R. 783 essentially nullifies the will of the
majority.
Respondents’ argument in opposition is succinct and compelling—
there can be no voter disenfranchisement in the absence of a right to vote—and we
30
agree with Respondents.14 In light of H.B. 783, and this Court’s refusal to enjoin
its implementation, Proposed Constitutional Amendment 1 was not before the
electorate on the April 2016 Ballot, regardless of how successful some or even
most counties were at removing the question or informing voters that their votes on
the proposed amendment would not be counted. H.R. 783 in no way
disenfranchised voters who had no right to vote on the Proposed Constitutional
Amendment 1 in the first place and who were only able to vote because of
insufficient measures to fully advise voters that Proposed Constitutional
Amendment 1 was not before the electorate on the April 2016 Ballot.
Moreover, as observed by the Secretary:
Petitioners’ position, if adopted, would work the only
true disenfranchisement, by denying voters who properly
refrained from voting on the questions a say in the
outcome. Whether or not H.R. 783 is a proper exercise
of the General Assembly’s constitutional authority, the
purported “vote” on the proposed amendment during the
[2016 Primary Election] cannot, under any rational view,
be retroactively deemed official.
(Secretary’s Br. at 13.) Furthermore, the prohibition in Article XI, section 1 of the
Pennsylvania Constitution that “no amendment or amendments shall be submitted
oftener than once in five years,” was also set forth in Article XVIII of the
Pennsylvania Constitution of 1874. See Stander v. Kelley, 250 A.2d 474, 480
14
Because we agree with Respondents that there can be no voter disenfranchisement for a
question not before the electorate, we need not discuss the parties’ arguments regarding the
number of voters who did or did not vote on Proposed Constitutional Amendment 1 when some
county boards of elections were unable to remove it from the April 2016 Ballot. We also need
not address Respondents’ arguments that Petitioners relied upon disputed facts (i.e., “unofficial”
and incomplete statewide election returns that are not part of the record) or documents presented
at the preliminary injunction hearing.
31
(Pa. 1969). As to both Pennsylvania Constitutions, our Supreme Court interpreted
that clause as referring to an amendment that had been previously submitted and
rejected and not one that was never before submitted to the electorate. Id. For the
reasons explained above, Proposed Constitutional Amendment 1 was not submitted
to and rejected by the electorate in the 2016 Primary Election. Accordingly, it may
be placed before the electorate during the 2016 General Election without violating
the five-year provision in Article XI, section 1.
Finally, Petitioners appear to seek relief previously denied by this
Court—i.e., consideration of Proposed Constitutional Amendment 1 as part of the
2016 Primary Election and the counting and certification of the votes cast in that
election with respect to that ballot question. The law of the case doctrine provides
additional grounds to refuse this request. The law of the case doctrine provides
that Pennsylvania courts “should not reopen questions decided by another judge of
that same court or by a higher court in the earlier phases of the matter.” Ario v.
Reliance Ins. Co., 980 A.2d 588, 597 (Pa. 2009). The Court’s order dated
April 20, 2016, denied Petitioners’ injunctive relief and, by law, conclusively
removed Proposed Constitutional Amendment 1 from the April 2016 Ballot.
Practicality and the law of the case doctrine dictate that our prior ruling cannot
now be undone. As a result, inclusion of Proposed Constitutional Amendment 1
on the November 2016 Ballot is not only appropriate under the law, but it is also
necessary in order to afford the entire electorate an opportunity to vote on the
amendment.
F. Mandamus Relief (Count IV)
Respondents argue that Petitioners improperly seek mandamus relief
to compel the Secretary to count and certify the votes taken on Proposed
Constitutional Amendment 1 in the 2016 Primary Election in accordance with his
32
constitutional and statutory duties. “A writ of mandamus is ‘an extraordinary
remedy which compels official performance of a ministerial act or mandatory duty,
as opposed to a discretionary act.’” Griffin v. Pa. Dep’t of Corr., 862 A.2d 152,
154 n.1 (Pa. Cmwlth. 2004) (quoting Africa v. Horn, 701 A.2d 273, 275
(Pa. Cmwlth. 1975)). A writ of mandamus may issue only where “the petitioners
have a clear legal right, the responding public official has a corresponding duty,
and no other adequate and appropriate remedy at law exists.” Brown v. Levy,
73 A.3d 514, 516 n.2 (Pa. 2013). Mandamus will not issue where “it is apparent
that the writ will be futile or ineffectual by reason of the inability of the respondent
to comply therewith.” Commonwealth ex rel. McLaughlin v. Erie Cnty.,
100 A.2d 601, 604 (Pa. 1953).
Respondents argue that the duty Petitioners demand the Secretary to
perform—i.e., counting and certifying the 2016 Primary Election votes—is
impossible, because H.R. 783, which this Court declined to enjoin, removed
Proposed Constitutional Amendment 1 from the April 2016 Ballot. As a result, not
all voters were able to vote on the proposed amendment and any election results
were unofficial and incomplete. Also, Respondents argue that Petitioners have not
established either a clear right to relief or a corresponding duty on the part of the
Secretary, as the Secretary’s duty to count and certify votes cast on a ballot
question is only triggered when that question is placed before the electorate, which
did not occur in connection with the April 2016 Ballot. Finally, Respondents argue
that an adequate remedy exists at law, namely that all qualified electors will be
permitted to cast their vote on Proposed Constitutional Amendment 1 during the
2016 General Election.
33
We agree with Respondents that Petitioners, as a matter of law, are
not entitled to mandamus relief for all the reasons enumerated above. Simply put,
the Secretary can have no duty to count and certify votes on a ballot question not
submitted to the electorate, and Proposed Constitutional Amendment 1 was not on
the April 2016 Ballot. Thus, Petitioners’ count for mandamus relief must fail.
IV. Conclusion
Accordingly, we deny Petitioners’ application for summary relief,
grant Respondents’ application for summary relief, and enter judgment in favor of
Respondents.
P. KEVIN BROBSON, Judge
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Pa. 43rd District, :
Senator Daylin Leach, Pa. 17th District, :
in their Official Capacities, and :
Senator Christine M. Tartaglione, Pa. :
2nd District, in her Official Capacity :
and individually on behalf of qualified :
electors in the Commonwealth of :
Pennsylvania, :
Petitioners :
:
v. : No. 251 M.D. 2016
:
Secretary Pedro A. Cortes, Senator :
Joseph B. Scarnati, Pa. 25th District, :
and Senator Jacob Corman III, :
Pa. 34th District, each in their :
Official Capacities, :
Respondents :
ORDER
AND NOW, this 6th day of July, 2016, upon consideration of the
cross-applications for summary relief filed by the Honorable Jay Costa, the
Honorable Daylin Leach, and the Honorable Christine M. Tartaglione (Petitioners)
and by the Honorable Joseph B. Scarnati and the Honorable Jacob Corman III
(Respondents), it is hereby ordered that Petitioners’ application for summary relief
is DENIED and Respondents’ application for summary relief is GRANTED.
Judgment is entered in favor of Respondents.
P. KEVIN BROBSON, Judge