Citizens Committee to Recall Rizzo v. Board of Elections

367 A.2d 232 RIZZO, CITIZENS by Shelly COMMITTEE TO RECALL Yanoff, Litem, D. Trustee ad et al.

The BOARD OF ELECTIONS OF the CITY AND COUNTY al.,

OF PHILADELPHIA et Appellants in No. 90.

Appeal Mayor of the Hon. RIZZO, City Frank L. Philadelphia, in No. 89.

Supreme Pennsylvania. Court

Argued Sept. 1976.

Decided Nov. 1976.

Rehearing Denied Dec. ap- Philadelphia, for Chanin, Gittis, Bernard Howard pellant in 89. No. Silver, Asst. Sol., Albert, City Michael N. L.

Sheldon City Sol., appellant 90. for in No. appellees. Philadelphia, Harvey,

Gregory M. O’BRIEN, ROB- EAGEN, JONES, J., and Before C. MANDERINO, JJ. ERTS, POMEROY, NIX and OPINION JONES, Chief Justice. appel- by appeals

This on matter is before Court County of City and lants, the Board Elections of of the “Board Philadelphia (hereinafter to as referred L. Frank “Board”) the Honorable Elections” or the and re- (hereinafter Philadelphia Rizzo, Mayor City by appeals jurisdiction these possesses to consider This 1. Court Act, Act Appellate Court Jurisdiction virtue of Section of the 31, 1970, § We 211.205. July 17 P.S. P.L. Section jurisdiction of the request plenary granted appellants’ to assume 20,1976. September appeals by in this cause Order dated “Mayor “Mayor”), an ferred to as or the from Rizzo” Philadelphia Order of the Court of Common Pleas County, September order of on entered ini trial court in mandamus was entered an action appellees, tiated to Recall Riz Citizens Committee Shelly zo Yanoff, Henry Reath, F. D. T. Arthur Grant, Joseph Mikuliak, Swygert Alfred Patrick H. Fleming, persons individually behalf classes similarly (hereinafter collectively situated to referred compel Committee”), “Recall the validation petition Mayor Rizzo, which the Committee Recall pursuant had Ar submitted of Elections Board ticle Philadelphia IX Home Rule Charter.2 end result of the Order issued the court below was grant request Recall man Committee’s for a writ of compelling damus accept the Board of Elections to petition recall filing implement requisite for and to the procedures holding for the of the on November recall election 2,19 76.3 chronology case, although of the not fundamental

to the resolution presented appeals, of the issues on these difficulty is of placing assistance in ? perspective the proceedings. enshroud these 15, 1976, On June the Recall Committee submitted to petition Board a Mayor Rizzo, consisting to recall of 20,156 pages paper 210,806 of containing signed lines, accompanied by 5,039 pursuant affidavits, to Section 9.9-101(1) of Philadelphia Home Rule As Charter. provided by Section 9.9-101(3) Charter, the Board of Elections petition commenced an examination of the 351, Code, 2. Pennsylvania Title seq. Section et 9.9-100 Upon 3. validating petition, the recall is re- the Board of Elections quired, pursuant Charter, to Section to 9.9-102 of Home Rule notify the petition. incumbent named in the If the incumbent resign does not days from no- his office the said within ten after given him, tice is pur- arrange the Board a must recall election suant to Section 9.9-103. filing validity purpose determining for for the of its rejection. prior expiration fifteen- 30,

On June 1976, provided day period completion of examination as declaratory by statute, the Board filed an action for fifteen-day judgment, seeking re- an extension of the quirement Pleas, and the of Order Court Common July 7, 1976, granted dated to the Board to an extension midnight Elections-, August 9, on 1976.4 The Board seeking Petition to time, a further extension filed 4, July 7, 1976, August Amend the 1976. Order of permitted trial exam- court to continue its Board petition during pendency ination of the recall proceedings subsequent petition on its for extension ruling by time. Prior to a on the Board’s the trial court Board, Petition time, for further on Au- extension gust 24, 1976, petition ruled that the recall was invalid rejected August 25, it.5 Recall On Com- mittee against initiated an action in mandamus Board, seeking pe- require the recall Board to file August 30, tition and to order election. On Mayor appellant, petitioned Rizzo, to intervene as a de- City 4. Commissioners v. Citizens Committee and the Honorable Rizzo, C.P., (filed July 1976). Frank L. No. 3706 The Court jurisdiction Common Pleas retained in that case such time until petition as action on the was taken Board. August report On its the Board’s staff submitted summarizing Board re- the results of the examination petition. report adopted call by This by was Board a 2-1 report 210,806 vote. The disclosed that en- there was total these, 122,296 petition. tries on the Of the staff found to be de- C.P., Savitt, J., fective (See for Opinion enumerated reasons. 3466, pp. 32-34, September 16, No. filed 1976). Under Section 9.- 9-101(1) Philadelphia Charter, of petition Home Rule a recall signatures equal must contain in number to votes 25% Mayor cast for the office of preceding mayoralty at the last elec- tion in qualify order filing. dispute There is in- no in the stant requisite case signatures number of valid 145,448. report Since the calculation of the staff determined .that 88,894 only signatures valid, petition rejected were the Board on the signatures. basis of insufficient valid petition granted August 31, fendant and that on expeditious trial court determined that resolu- an required tion public of the issues was of the im- because portance question approaching of the recall and the dead- placing line for issue on the November ballot. Accordingly, it set forth an for the accelerated schedule filing responsive pur- pleadings supportive briefs, Pennsylvania suant Rule of Procedure 1003. Civil Upon resolution of the mandamus action favor Committee, appeals Recall these followed. appeals pri-

On these we are confronted three mary (1) propriety issues: in en- trial court tertaining granting the action in mandamus and the writ requested; (2) sufficiency of the evidence and the legal position upon correctness of the which the Board rejected provisions; (3) the recall the constitution- ality provisions of the recall of Article IX Phila- delphia Home Rule Charter.6 These issues will be ad- dressed seriatim.

1. Mandamus Appellant, Elections, pro- Board of has contested priety of the action brought mandamus the Recall Committee theory juris- court the trial lacked diction review by way the decision of the Board mandamus. only Jurisdiction competency relates to the particular court to hear and determine the contro- versy of the disputed class belongs. to which the case Party American Case, Labor Pa. A.2d 48 jurisdiction “The test of is whether the court upon has to enter inquiry, not whether it ultimately decide grant it is unable to the relief 6. The parties additional appeals issues raised on these we ancillary deem be primary determination of the three is- sues, Therefore, as stated. dispose points we will of these lesser within the broader framework of the discussion of the more fun- damental opinion. issues the course of this 6

sought Dyers, in particular case.” Main Cleaners & 71, 74, Super Cleaners, Inc., Inc. 2 v. Columbia 750, (1938). A.2d mandamus 751 writ of Whether properly granted way by in no the trial court below competency affects the court to entertain such an of that jurisdiction action. The trial to con- court have had sider the action for in the instant a writ of mandamus case; yet may erroneously granting the have re- acted quested separate inquiries require These relief. Party Case, individual consideration. American Labor supra. petition

Jurisdiction for writ manda consider a a against mus unquestionably board of lies a elections pleas statutory grant.7 court of common virtue of Bolinger, Oberleitner v. 42 Pa.D. & C.2d 623 Cf. Board, however, Commit contends that the Recall proper perfect

tee’s appeal recourse was from the an determination, pursuant provisions Board’s to the Agency Local Law.8 Even if Board is correct its jurisdiction contention, argument go does not of the lower court to for a writ of entertain an action only properly but mandamus, to whether the writ was granted. seriously argued It cannot be the Local Agency way jurisdiction in some Law removes the pleas court petitions of common for writs to hear against Young mandamus boards of v. elections. See District, Littlestown Area School 24 Pa.Cmwlth. (1976);

A.2d 120 Pittenger, Flinn v. 19 Pa.Cmwlth. (1975); A.2d Township Dis Manheim School trict Educ., State Bd. 1 Pa.Cmwlth. A.2d 561 (1971). We are convinced that below did court jurisdictional have the requisite power to entertain the controversy through petition instant for writ of man- 8, 1893, amended, 7. Act of § seq. June P.L. 1911 et 12 P.S. (This suspended by act has been the Rules of Civil Procedure ex- cept mandamus.) insofar as the act authorizes actions of 2, 1968, 8. Act of December seq. §§ P.L. P.S. et inquiry now turn Being convinced, must so our damus. appellant question Board raised alternative below, Elections, court to whether the order of the ap- granting appellees, was to the the writ of mandamus propriate present here. under the circumstances

Initially, obliged emphasize mandamus that we are to only extraordinary legal remedy issue is an which will (1) seeking petitioner when that: relief establishes appropriate adequate, there is and a want of other legal right specific remedy (2) available; there clear is a (3) corre to there exists a entitled; which he is and sponding duty part Porter v. the defendant. on the Bloomsburg College, 375, A.2d 621 State 301 Pa. 450 (1973); Valley Forge Racing Horse Rac Assoc. v. State ing Commission, (1972); Mel 449 297 A.2d 823 292, Pa. linger Kuhn, (1957); v. 83, 130 A.2d 154 Gar Pa. (1956). ratt Philadelphia, v. A.2d 738 387 Pa. seeking proof clearly upon party burden of legal right this extraordinary remedy to to establish his such relief.9

In considering prerequisite obtaining relief first in mandamus, appellees had we must if the determine adequate remedy by available legal an which alternative to seek relief from the If so, Board’s determination. court below requested should have extraordi- denied nary Mellinger writ. Kuhn, supra; Commonwealth v. v. Mitchell, 82 Pa. 343 In Commonwealth Mitchell, supra, point clearly enunciated:

“It is a well-established rule that sues for the he who mandamus, writ of right must some have well-defined Rowe, 537, 545, Williams v. 3 Pa.Cmwlth. A.2d (1971), the court stated: requesting “In extra-ordinary provided by relief manda- mus by and Pennsylvania No. Rules of Civil Procedure 1098, supra, appellants heavy prove had burden court right their summary judgment and was clear free from Rogoff Company, doubt. See v. Bunche 395 Pa. (1959) Teter, 151 A.2d 83 and A.2d Travis v. (1952).” complete legal, specific, enforce, legal remedy, specific there is no other for which independent that which right must be he claims (em- large.” public at with the he in common holds added) phasis regard, Board, position in this

It is the legal possessed adequate alternative an Recall Committee pro- appeal by way remedy to that mandamus trial Agency Law.10 provided cess under the Local made found, however, the “determination” court pe- validity Elections as to the Board of “adjudication” meaning of tition within the did not fall Agency Law.11 the Local as defined Section 11302 rejected the court Relying conclusion, on that trial provided an Agency ade- proposition Law that the Local remedy mandamus. quate legal to that of alternative agree court follow, with the we For the which reasons respect. in this below in provided “adjudication”

First, in the definition affecting speaks decision Act, of a the Section ad- in the rights parties proceeding which of “the of a added). case judication In the (emphasis is made” (filing) to acceptance being petition for recall submitted “par- provision made for Elections, the no Board part of itself, to be ties,” perhaps other the Board than validity. petition’s “proceeding” the to determine Philadelphia Home Rule Charter Section 9.9-101 tendered provides only petition “shall recall in then, The Board filing elections.” for to the board of disapprove approve obligation brief, to either has contemplates provision petition. is made No 2,1968, § 53 P.S. 11307. P.L. 10. Act of December J., C.P., (filed Sep- Savitt, pp. 17-24 No. Opinion of 11. See 16, 1976). tember any proceeding be- in petitioner participation fore the Board.12 “party” as 11302(3) defines

Second, in the Act Section local before a proceeding person appears in a “any who appel- added). (emphasis Since agency . .” the examination appearance at lees not make an did have (and petition could not “proceeding” the recall by Charter), defini- provision of done so under not fall with- would appellees instant case in the tion provisions. Agency compass Local Law in the Agency in its reading Law addition, the Local intended entirety the Act was to the conclusion that leads parties encompass “adjudications” in which sup- in given opportunity present either an evidence being propositions against undertaken. port or Thus, or determina- we that not all decisions conclude scope agencies” “local are within tions rendered that, particular, de- Agency of the Local Law and rejecting the Board of Elections termination provi- petition subject to review under the recall See, Young Agency Lit- g., sions of the Local e. v. Law. District, tlestown Area School Pa.Cmwlth. Pittenger, (1976); Flinn 19 Pa.Cmwlth.

A.2d Code, Pennsylvania 9.9-101(3), 12. Title Section reads full as follows: petition filing “A shall be tendered to the board of jurisdiction having City. elections over elections in the Such board shall examine it to see whether it contains a sufficient apparently genuine signatures. ques- may number of The board genuineness any signature signatures appearing tion the of or petition any signature the recall signatures ing and if it shall or find that such disregard genuine, are not it shall in them determin- petition signa- whether the contains a number sufficient of disregard any signature It tures. shall also dated more than sixty days petition filing. before the date the was tendered for any petition The board shall eliminate accompanied sheet of the which is not required by petition invalidity affidavit. The of peti- validity remains after elimi- sheet of the shall not affect the signatures tion if a sufficient number of nating complete an such invalid sheet. The board shall its petition days if examination within fifteen and shall there- upon petition reject if file the or valid it invalid.” 10

338 A.2d (1975); Township 735 Manheim Dis School trict Educ., v. State Bd. 1 276 A.2d 627, Pa.Cmwlth. (1971). 561 The Recall Committee had no other ade quate legal remedy therefore, and, satisfies to available prerequisite first for relief in mandamus.13 only

It is to axiomatic that mandamus will issue com pel agency perform purely an officer or to a ministerial duty.14 Racing Valley Forge Racing v. State Assoc. Commission, 292, (1972); 449 Rose Pa. 297 A.2d 823 Dept. Tree Media District Instruc School Public tion, 233, (1968). 244 A.2d set 754 well “[I]t tled compel that mandamus a will never lie to a review of person decision of body an administrative or invested already in discretion, which has acted the matter Pittsburgh, accordance with 243, law.” el v. Pa. 340 Raff 246, 16 392, (1940). A.2d 393 inappropriate

Mandamus is to control the exercise public discretion obliged per- vested a officer iswho particular form duty. duty may discretionary a But a be within may limits and transgress the officer not those does, If remedy. limits. he appropriate mandamus an Work v. United States ex Rives, 175, 177, rel. 267 U.S. 252, (1925). S.Ct. Teter, L.Ed. 561 In Travis v. authority position Persuasive may for this 13. also be found in the analogous provision for remedy rejec- of mandamus to review petitions 1937, tions nomination under the P. Election Code See, § L. g„ Sunday P.S. 2936. e. Petition Set Aside Movies, Schuylkill L.R. Rives, In Work v. United States ex rel. U.S. (1925), S.Ct. 69 L.Ed. 561 Mr. Chief Justice Taft summarized the modern law mandamus: compel perform purely “Mandamus issues to an officer duty. compel ministerial It can not be used or control duty discharge given of which law he is discretion. duty discretionary be within limits. He can limits, transgress so, may those and if he controlled he does injunction keep mandamus to within them. intervene, all, upon depends of the court to if what thus statutory discretion he has.”

11 Court (1952), 326, 330, 179 87 A.2d stated: a proceeding mandamus in a

“It well settled is awith is vested publiс who compel official can a Court discretion; but discretionary power exercise fraudulently ex- arbitrarily or (unless is the discretion law) it upon mistaken view is based a ercised or discre- the official’s control interfere with or cannot way, it is Expressed judgment. another tion or (who is vested judgment the official discretion and prevails and discretionary power) which with a a person aggrieved; and jury or a that of a Court or a his dis- compel to exercise such cannot Court official which produce result which will cretion a manner .” . or desirable deem wise Court (emphasis added) wheth- confronted is The issue with we are now which oper- grant mandamus er the trial of the writ of court’s usurp discre- proper exercise the Board’s ated arbitrary, operated remedy tion or whether an illegal Prior to or fraudulent exercise such discretion. reaching necessary point, to de- a conclusion on this it is scope discre- of the Board’s termine the exact nature and applicable provision of the tionary power under Home Rule Charter. 9.9-101(3) Philadelphia Rule Home

Section re obligations forth the the Board Charter sets spect The lan petition. to the examination of the recall imports duty partially guage of that section minis partially As to ministerial and deliberative. lit appears to be aspect duty, there the Board’s terial “complete exam obliged its tle that the doubt Board days petition and shall fifteen ination of within 375, 301 Bloomsburg College, Pa. 15. See also Porter v. State (1973); A.2d Philadelphia, A.2d 621 Pa. Garratt 12, supra, particular provision. See note for the text of this reject it if invalid.” thereupon petition if file the valid that duty in the sense purely is This ministerial petition validity required is to act on Board g., v. See, e. State prescribed within the time frame. Scott, (1930). 52 Nev. 216, 285 P. 511 accept reaching whether to

However, decision in discre petition, ultimate the Board is accorded the exercising validity petition. In that tion as to the good in faith bound to do so discretion the Board was discretion, other legally in sound manner. The D’Ascenzo, v. words, Tanenbaum was not unrestrained. (1947). Pa. 51 356 A.2d 757 260, court, by The trial concluding that the writ manda issue, mus should obviously tran believed Board parameters scended the rejecting of that discretion in signatures unaccepta which fell into the enumerated categories. ble In holding, so the trial court fell into er by substituting ror its determination as sufficien cy petition of the recall City the Board. See for Pampa Commission Whatley, v. (Tex. 366 S.W.2d 620 Civ.App.1963); Fraser v. Cummings, Cal.App. 504, 192 P. 100

That scope by of review a court in a mandamus proceeding severely limited was made clear this Pittsburgh, Morrison v. Court in 95, 98, 351 Pa. 40 A.2d 406, (1944): “ person ‘Where a body or judicial, clothed de

liberative, discretionary or powers, and he or it has ex powers ercised such according to discretion, his its mandamus will compel not lie to revision or modifi cation of resulting the decision from the exercise of such discretion, though, fact, the decision have wrong.’ been Philadelphia Souder v. al., et 1, Pa. 245; 156 A. el Pittsburgh, v. 340 Pa. Raff A.2d 392.” Slessinger

In Fairley, Pa. 16 A.2d (1940), this Court, considering request for a writ police of- mandamus for the of several reinstatements ficers, that: reasoned position

“. the learned court below took hearsay was not sufficient [admissible evidence] just plaintiffs’ to establish cause dismissals. authority this error, the court fell into since it no had proceeding weigh a mandamus testi admissible mony body and hold that the administrative was not arriving City warranted in at its el v. decision. Raff Pittsburgh al., et 243, 16 A.2d 392.” Although the previ- identical factual situation has not ously been Court, considered question, scope of the discretion vested in a board of elections (or municipal officer) validating in petition, recall a has been considered in jurisdictions. other In the case of Fraser v. Cummings, Cal.App. 508-09, P. (1920), Appeals California Court of was presented with a compel mandamus action to certifica- tion of petition a city concluding In clerk. that mandamus instance, would lie in that the court stated: city

“Where the clerk required by refuses to act as charter, showing or where there is a of such an abuse of discretion as that would indicate no discretion exercised, was may by compel' the courts mandamus perform the clerk to duty his under the charter. But here showing is that perform duty the clerk did his if, duty, the exercise that he a reached of dif- might conclusion what this reach on court ferent from question necessity showing the cross of streets, jurisdiction this court has no its to substitute judgment words, people In other his. of the for city of upon Oakland have their charter conferred city power finally clerk the exclusive determine petition whether requirements a recall conforms to all charter, of the they thereby have to the denied power courts the reviewing such determination in a proceeding of this of the kind. It function interpret it, courts to the law and to leave as find municipal to the duty executing officers the the law people upon as énacted. Where the a have conferred power ministerial an exclusive to determine officer for fact, them a province certain it is not the the courts judgment to substitute their so for officer plain chosen. To do so would be to set dic- aside (emphasis added) tates of the law.” Accord, City Pampa Whatley, Commission v. S. (Tex.Civ.App.1963); Merritt, W.2d 620 Hartsock Cal.App. 365, 269 P. 757

In granting the instant the trial court case, erred reversing writ of mandamus the Board’s determi petition nation that was defective as result its finding 115,818 signatures illegal were void due to 22,159 signatures notarizations and that were invalid be irregularities cause of appended in the affidavits. reaching decision, its we believe the trial court was sub stituting propriety peti its determination of the tion for that of the clearly Board of This Elections. city discretionary erroneous. The charter vested the sufficiency petition as to the for recall in Board and was error for the lower court to substi appropriate finding tute what it believed to be more City Board. In the case of Commission of Pampa 620, (Tex.Civ.App. Whatley, v. 366 S.W.2d 1963), Appeals the Texas Court of Civil stated:

“ ‘Although appropriate remedy mandamus is the to compel performance duty plain, posi- the a is tive, and clearly imposed ministerial in character and by law, it necessarily merely does not follow because duty discretionary the is or that the element of discre- part, tion exists in that mandamus will not lie. correct rule is that mandamus will not lie the where duty clearly discretionary party upon and the whom duty rests reasonably has exercised his discretion upon is, jurisdiction; and within his that suffi- facts ” support cient to his action.’ Quoting Legal 206. Extraordinary Remedies Ferris, § (Tex.Civ. State, 838, also Miller v. See S.W.2d App.1932). its base It that could not is true the Board grounds arbitrary capricious or an determination on Philadelphia, interpretation erroneous v. law: Garratt v. 442, (1956); 387 Pa. Tanenbaum 127 A.2d 738 D’Ascenzo, (1947), 260, 51 but we 356 Pa. A.2d 757 respect to persuaded that was the such case categories. Rather, we believe above mentioned good lawful made within the Board faith determination petition as bounds its that the was defective discretion “illegal signatures no result of which fell into the categories. “irregular tarizations” affidavits”17 stringent adopt criteria Whether this Court would employed by charged de we with the Board if were certify irrele petition liberative to the recall validity discretionary power vant. to determine nor petition in this was vested neither Court long As below, the court in the but Board Elections. body powers such within exercised deliberative authority in granted the Home ambit of the to liberty substi Rule trial court not at to Charter, tute its for that determination of the Board. appellees

It must be in remembered that order mandamus, to be entitled to the issuance of the writ affidavits,” category “irregular appellant, 17. As Rizzo, Mayor erred the appeal on this submits the trial court also refusing permit in him trial that to introduce evidence at opinion were defective. It of the trial affidavits was the court that of an the case action mandamus it is limited or the consideration of that evidence which the defendant officer agency general in the It is is the rule considered. true that this proceeding Pittsburgh, Pa. case of a Crede v. mandamus. (1946). applicable 49 A.2d 700 But this rule where is not hearing opportunity there was no “interested evidence submit parties” proceedings in the below. See 52 Am.Jur.2d 790-91; § § Mandamus 55 C.J.S. Mandamus at Pittston, Detoro (1942); 344 Pa. 25 A.2d 299 Socialist Cf. Case, Labor A.2d 831 they right legal must clear demonstrate that have a remedy. to such The shifted to the burden cannot be therefore, justify We, Board of Elections to its decision. discretionary conclude that not exceed Board did its powers regarding signatures the invalidation of those which fell within the above mentioned classifications and granting court the trial erred in writ of manda- mus in the instant case. Sufficiency

II. the Recall Petition regard sufficiency petition, the court below held that Board Elections had acted arbi- trarily contrary rejected approxi- to law when it mately 67,000 signatures petition.18 Having on vali- these, signatures dated the court that sufficient held had presented been petition for the Board to file the place question the recall ballot.19 reverse the We finding signatures the required number presented below, because court in this mandamus ac- tion, improperly judgment its for that of substituted Board. signatures

The Board found 57,494 accompa- were by irregular affidavits, nied rejected 22,159 only but it for this reason alone.20 The affidavits were found signatures placed by These had been following Board categories rejection: as reasons for their 21,195 initials signatures 2,962 signatures abbreviations signature 3,482 insufficient signatures 11,209 signatures 6,313 signatures incorrect ward forgeries/alterations irregular 22,159 signatures. affidavits category “illegal notarizations” independently was checked 115,818 signatures others and were found to be uncountable for this reason. petition 145,448 required signatures 19. This and the court found a 156,214 signatures total of valid presented were to the Board. 5, supra. See note 18, supra. 35,335 20. See remaining note disregarded were signatures because of defects in the themselves unrelated to the affidavit. gross (1) ir- false for either of were two reasons: there append- regularities petitions the were on to (2) falsеly ; or ad- ed the as to their affiants had sworn registered or dresses their in Philadel- status as voters phia. overturning ruling of the below, The court the signatures 22,159 counted Board that these not be should already affidavits, because of the false the added them to signatures. doing, validated the so court erred. requirements The Charter sets the for the recall out petition as follows:

“(2) petition signing add Each elector a recall shall stating signature occupation, residence, to his his his Signatures signing. ward, on a re- and the of date petition may separate call on sheet but each be sheets appended person, shall have to it the some affidavit of necessarily petition, signer the best that to of knowledge persons of affiant’s belief signatures registered appear whose on the are sheet City, electors or district, as the case of of they signed knowledge be, that with the con- full of petition, tents their cor- residences rectly given.” (emphasis added). pro- 9.9-101(2) Charter, § It then regard any ceeds delineate the Board’s petition filed:

“(3) petition filing A recall shall tendered having jurisdiction board elections elec- over City. tions in the Such board shall examine it to see apparently whether it a sufficient contains number genuine signatures. genu- may question The board any signature signatures appearing ineness of or petition any the recall and if it find such shall signature signatures genuine, or are not disre- shall gard determining petition them in whether con- signatures. tains a sufficient number of It shall also disregard any signature sixty days dated than more petition filing. before the date the was tendered for petition any The board shall eliminate sheet of accompanied by required which is not affidavit. invalidity any petition not af- shall sheet of the validity petition fect number if a sufficient eliminating signatures inval- remains after such an complete id examination board shall its sheet. thereupon petition days within fifteen and shall reject petition if file the it if invalid.” valid added). Charter, (3) (emphasis 9.9-101 § These standards were the authen established ensure ticity petition. Charter, 9.9-101, See An § provisions, notation 4. Pursuant to these the Board un dertook attached to this an examination of the affidavits petition. finding question falsity Its fact was a and which was committed to the determination Board’s subject finding only to if reversal was court unsupported by arbitrary. the evidence or otherwise In authority weigh action, a mandamus the court has no to Slessinger Fairley, the evidence before the Board. See Pittsburgh, (1940); 16 el v. A.2d 710 Pa. Raff (1940). Pa. There sufficient A.2d 392 was finding evidence cannot be before Board so that its arbitrary. labeled gross irregularities group, were the affidavits

challenged they signa because were to sheets of attached tures which one-fourth three- contained between irregular signatures.21 irregularities fourths in These categories challenge signa cluded all the established to tures, among patent irregularities which were such forgeries, nonregistered citizens, duplicative obvious signings, persons gross addresses, non-existent filling spaces by persons petitions in of of the other than figure 21. The record differs as to the used to determine which af- challenge. Board, report Joseph Migatz, fidavits In his Registration Supervisor, Voter figures used the of one-third trial, irregular signatures. three-fourths Mr. Record at 1345a. At Migatz figure testified that the base Record at 462a. 25%. here purported signators.22 are not concerned We led validity particular signatures with the before challenge the Board to these affidavits. The issue properly the affida us is whether the find Board could large of such de upon vits to false based number appeared fects which on these sheets. some

Our courts have affiant must have held that an knowledge of which he the facts the affidavit swearing. Case, 332 Socialist Labor Pa. A.2d (1938) ; Pa.Super. Petition, Frank 98 A.2d 255 (1953) ; Elliott, In re Nomination Petition (1976). Cmwlth. 362 A.2d 438 it to We do not find be an unreasonable inference from the evidence before irregu that the were of these Board affiants aware and, properly larities sworn to could not have therefore, irregularities patent ques these raise a affidavits. Such accuracy tion as to the the affiant’s statement “knowledge persons the best of his and belief the whose signatures appear registered on the sheet are electors City knowledge signed . with full petition, contents of the and that their residences correctly given.” Charter, 9.9-101 §

Additionally, negative from the there arose inference subpoenas failure of the the Board’s affiants to answer petitions. explain discrepancies and to their party having When a control of material evidence fails produce it, an inference arises that the would evidence party. Downey Weston, unfavorable to that 451 See v. (1973); Kasnot, Pa. 301 A.2d 635 Haas 371 Pa. v. among rejected 22. Included the sheets for this reason were the following: (1) containing signatures, a of of set sheets 95 85 which were defective of under Board’s criteria and 55 those were not registered; (2) signatures, containing a set of of sheets criteria, ap- were defective 30 of under the Boаrd’s which were signed person parently by the same and most of which were completed by person; the same (3) containing signatures, a set of sheets 25 which were registered. not Department (1952); 92 A.2d Lutsko Transportation, A.2d 361 Pa.Cmwlth. (1974). permit subpoenas The were issued in order to op irregularities. explain the affiants an Such portunity negates any the Board’s find conclusion weigh these ing arbitrary. It the Board to was for validity findings against of the affidavits. the facial Where, here, upon which the Board there is evidence determination, court, in mandamus could base its weight of judgment as to the cannot its action, substitute el, supra. supra; Slessinger, such evidence. Raff properly rejected The also those affidavits Board ’ which the had to false statements. affiant sworn Charter, Whether statements were mandated material, This will otherwise is not the Court issue. process approach probity take a strict when the of the Cianfrani, involved. In re Nomination Petition See Any falsity in an af- 359 A.2d 383 accuracy fidavit casts on the of the entire doubt affidavit thus, authenticity petition. Board properly could conclude that were false.23 affidavits However, the court if below held that even these affi- signatures davits were false the otherwise valid should not be holding This discounted. was also in error. ap- requires Charter itself that “each sheet shall have necessarily pended person, the affidavit some signer petition, of the affiant’s that to the best ap- persons signatures knowledge and belief the whose pear requirements].” Charter, 9.9- met certain [have § 101(2). The Board shall eliminate sheet which does Charter, required 9.- not have affidavit attached. § address, Examples determining falsity false one criterion for affidavit, provided Migatz: were to the Board Mr. Tukes, couple people and a where there was “Gloria other lot, gentleman boarded-up was a a vacant and one where there months, nobody yet home and was there within six within already signed, thing, the date that he had swore to the it was up.” boarded Record at 1352a-53a. 9-101(3). As for Mr. Justice Nix stated the Court supra: Cianfrani, cases provisions have made

“[0]ur clear that relating nominating election laws form to the petitions accompanying and the not affidavits mere necessary pre- technicalities but are measures to preserve vent integrity and to the election fraud process. See, g., Township Liquor e. Catherine Refer- Case, endum 291, 293, 114 A.2d (1955); Harrisburg Sunday Case, Movie Petition Pa. 635, 638, requirements 44 A.2d The of sworn legitimacy affidavits are to of in- insure the Thus, formation process. crucial election policy of reading the liberal of the Election can- Code not be requirements distorted to emasculate nec- those essary probity process.” to assure (emphasis added). Id. A.2d at Court went on to be at hold that “a false affidavit must equated least with the failure to execute the affidavit.” necessary probity Since Id. affidavits are process, not submission of false affidavits did comply provision required with the Charter affi- appended signatures davits and, be were therefore, rejected properly holding This Board. reaches only catego- 22,159 signatures rejected under this ry, 57,494 signatures accompanied by but these the entire sig- Thus, regardless validity affidavits. of these categories, natures under of the other must be rej accompanied if ected a false affidavit.

The next turn classification which we is that termed “illegal notarizations.” court held that below 115,818 rejection signatures Board’s for this reason because, erroneous even if im- the notaries acted properly, proper sig- this should not invalidate otherwise disagree. properly natures. We The Board when acted illegal these found notarizations and refused signatures count to which the affidavits were at- therefore, in error in court, tached. The substitut- ing judgment its when the Board acted neither arbitrari- ly contrary nor to law. pertinent part: Notary provides Public Law in notary public may

“No in act as such in transaction party directly pecuniarily which he is a interested.” or August 21, Act 19(e), 57 P.S. P.L. § § (1964). en- 165(e) purpose is to of such a statute regard impartiality part notary sure on the of a with policy in the matter a before This was articulated him. provided concerning that no bank case a statute which notary public. officer or stockholder could serve as a notary judicial power. protests, “A His has a sort of acts, his and other certified under attestations, official the facts there- office, hand and seal of are evidence of necessary, therefore, in he should certified. It is parties not be often- interested in favor of the who are invoking est his services.” Pyle,

Commonwealth v. present case, sixteen affidavits notarized people illegally were found the Board to have been people notarized because these had a direct interest attorney for the matter. These sixteen included the Committee, Recall salaried em coordinator and two ployees were Committee who also circulators only persons circulators.24 petition, who were and twelve acting person degree from What of interest would bar public question notary as a to be answered is a Myrick, 111 facts of Vt. each case. See Schirmer (1940); Notaries 6 at 618. On A.2d 125 66 C.J.S. § case, people interest a direct facts of this these had 1,532 signa- Harvey petitions containing Attorney notarized employees, also and the all tures. Coordinator Yanoff salaried 40,000 circulators, signatures. approximately The other notarized some remainder. There was also twelve circulators notarized the evidence, unclear, Attorney been although Harvey have however, was, the Recall Commit- He a member of circulator. attorney. tee as well as its meaning within their of our which would statute bar notarization of these affidavits. persons gen separate apart

These from were public regard petition.25 eral to their in this interest They petition, were dedicated success of this even tually seeking Mayor. removal of All were ac tively yeoman promote the re involved effort call, organization whether of the drive in the signatures necessary actual solicitation of the for its suc steps beyond point When one signing cess. his petition signatures, actually to other name a solicits general he has than the more interest a citizen in a as By notarizing they per outcome. these affidavits were forming an act essential their in to achievement of filing peti since required terests affidavits are of Charter, 9.9-101(3). They advancing tion. their were § by ensuring own interests the success of their efforts political goals. achievement of their This is the type of notary public action a the statute is de which signed prevent impartiality because the which lends authenticity credence to the destroyed. of the affidavit See, g., e. Pyle, supra. Commonwealth v. This rule has applied been where a candidate notarized the affidavits petition. circulators his own nomination ex State Reed Malrick, rel. v. St. Ohio 137 N.E.2d (1956); supra. Myrick, key Schirmer The such de appears cisions impartiality by destruction having candidate’s interest suc his nomination ceed. We see no distinguish reason on the basis of candidacy. Here, people these had an interest in a simi holding 25. We appellees note that standing had in manda- mus, the necessary court below special stated that had “the interest to maintain this action. The Citizens’ is the Committee organized association which obtaining and directed over 210,000 signatures Savitt, J., petition.” Opinion on the recall C.P., 3466, p. (filed No. September 1976). The members of Committee, attorney, such as coordinator and salaried employees, cannot now merely assert their interest a was general one. the ballot— question goal getting political, lar — by their actions.26 was advanced Notary 19(e) that Section therefore hold We acting notaries people from these Law barred Public upon the limitation this section in this Since case. nullities and act, were their acts of notaries to re- properly Board, therefore, were void. affidavits were affidavits signatures these void to which jected the supra. Cianfrani, 101(3). Charter, See appended. § 9.9— is reversed. The court below dispositive of alone is of these issues either

While sufficiency,27 the court below note that we issue of erroneously un- holding acted the Board correct in following striking signatures in the the law in der “abbreviations,” signature;” categories: “insufficient “initials,” ward;” “forgeries/alterations.” “incorrect have rejected reasons should signatures for those properly corrected and the court as valid been counted the Board’s discretion. the abuse of Constitutionality Recall

III. procedural Though below on we reverse court question necessary of grounds, it is still to resolve constitutionality provisions in the Philadel- of the recall many phia understand Home Rule Charter. We persuaded City Gallipolis by v. 26. We are not Commission of Houck, 258, App. (1930). Our State ex rel. 36 Ohio 173 N.E. 36 prohibition in its the one construed statute much broader than apply only litigation. More filed in that case to to affidavits forcefully, Supreme Reed v. Mal the Ohio Court in State ex rel. rick, 483, disagree (1956), to 165 Ohio St. N.E.2d 560 seemed its reading It stated that with that narrow of the Ohio statute. holding for his affidavits that a candidate cannot notarize the imposed petition own was “consistent with the restrictions taking authority upon their statute notaries in the exercise of depositions. The evil this restriction to be avoided ' 490, same in both instances.” Id. at 137 N.E.2d 156,214 signatures, 27. Since the court found a total of valid rever- 57,494 115,818 put clearly sal be- as or the the total would 145,448 necessary signatures. low the Pennsylvania boroughs townships municipalities, and presently considering have or are of the inclusion recall provisions governing charters, in their we would and neglectful duty promptly if on this our we rule did argued great matter. All in this sides contest have learning validity and skill the constitutional recall. convinced, listening reading We are after these and arguments, recall, provided for in the Philadel- phia Charter, Pennsylvania Home Rule is violative of the Constitution, VI, Article than dash- Section 7.28 Rather ing hopes expectatiоns of citizens around find, by may approve proposals only state who ruling Court, later no their actions were to prefer avail, guidelines we to set See the future. (1956). v. Philadelphia, 79, Schultz 385 Pa. 122 A.2d 279 Undoubtedly, the entire Home of Phila Rule Charter delphia has the force and status an enactment legislature. Case, 48, Addison A.2d 272 385 Pa. (1956). such, presumed As it is constitutional and the proving allege burden of rests who violation on those 290, unconstitutionality. Philadelphia, Cali 406 Pa. v. (1962); Statutory 177 A.2d 824 Construction Act No 25, 1970, 6, 1972, vember P.L. added December P.L. 1922(3). presumption Pa.C.S. fa § § constitutionality strong one, vor of the of statutes is a reflecting part judiciary respect “on the due legislature co-equal government.” as a branch of Allegheny Valley School Districts Deer Lakes v. Kane, 554, 562, 463 Pa. A.2d In deed, as we before, have we stated must defend statutes against “clearly, palpa constitutional attack unless bly plainly” Daly Hemp violate the Constitution. hill, 263, 271, (1963). But, 191 A.2d presumption is neither nor irrebuttable conclusive. grounds Since we unconstitutionality reach our decision on of Constitution, not, not, Pennsylvania under the we and need do preemption determine appellants the claim of the constitution- ality of recall under the Federal Constitution.

26 legislature, the is judiciary, no sworn less than uphold Supreme Law, It the Constitution. adopted by government,” “absolute framework of of people Pennsylvania, person no nor “and branch any provided” government power there has more than is 229, 233, A.2d Shapp Butera, 348 in. 22 Pa.Cmwlth. supra; (1975); Philadelphia, Common 912 Cali v. 367, 111 Philadelphia, Pa. wealth ex rel. Truscott v. (1955); Case, Pa. A. A.2d Bowman’s powers (1909). exceeded have been constitutional When obligation of by legislature is the municipality, or a de judiciary preserve law and fundamental contrary clare and without effect. actions null here concerned constitutional we are governs VI, re- contained in Article Section moval of civil officers:

“All on the condi- civil shall hold their officers offices they office, tion while themselves well behave conviction of misbehavior shall be removed on any office . All civil or of infamous crime. Governor, people, except officers elected Governor, members Assem- Lieutenant General bly record, re- judges courts shall cause, due moved the Governor reasonable after for hearing, on the of two-thirds notice and address full (emphasis added) the Senate.” provision This in no establishes uncertain terms for only elected civil officers be removed from office long well,” cause. said “behave themselves So pen- officers hold “Removal is the “shall their offices.” alty supra, Case, Bowman’s misbehavior.” provision Furthermore, at 204. for remov- A. allows al, upon process officer, after due has been accorded conviction of “misbehavior office or infamous crime,” or “on address two-thirds of the Senate.” Commonwealth, See Houseman v. Pa. 222

27 by officers, For or officers created constitutional Constitution, provided in for Ar the methods of removal Case, VI, supra; ticle 7, Section are exclusive. Bowman’s Impeachment 304, Case, Marshall 62 A.2d 30 Pa. 360 (1948). legislature, however, may The differ determine legislatively ent methods of created officers. removal for VI, provides officers, 1, Article Section “All whose that: provided Constitution, selection shall be for in this appointed by The may elected law.” be directed authority necessarily power implies so conferred “establish a Mar method for the removal.” incumbent’s Impeachment 33; Case, supra, 310, shall 62 at A.2d Ziegler, 100, Weiss Milford (1937); v. A. 327 Pa. 193 642 wnship Supervisors’ Removal, 46, 291 Pa. 139 A. To (1927); Reid, Vesneski v. Commonwealth ex rel. 328, power Pa. (1919). A. 829 This to both attaches legislatively officers, created, appointed v. civil Watson Pennsylvania Turnpike Commission, Pa. 125 A. (1956), by 2d 354 officers elected civil created legislature. ‍​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌‌​​‌​​​​‌​​​​​‌​‌​​‌‌‌​‍Township supra; Weiss Ziegler, Milford Supervisors’ Removal, supra. regard limited, however, specific elected civil by officers is requirement VI, Article all such offi Section cers only Thus, legisla be removed for while cause. provide removal, ture for methods of dif different ferent, for example, impeachment, from the method cho always sen premised cause, must aft demonstrated er hearing, sufficient, notice and under Constitu tion, permit requirement removal. Ar The “cause” VI, ticle expressly ap Section requirement, ais broad plicable to all officers, civil whether be created legislature. legislature Constitution or the bound to follow its dictates method when determines a of removal for an elected officer. Richie v. civil See Philadelphia, 74 A. rely solely precise need not

We on the words support Constitution conclusion above stated many deter- there the same cases which have reached Removal, Township Supervisors’ mination. Milford constitutionality supra, upheld town- of a the Court township ship providing statute for the removal legislature, supervisor, officer created an elected sessions, neglect of upon proof, quarter court Id., duty 291 Pa. at or other office. malfeasance creat- A. statute at 624-25. The Court held permissible method, pursuant to Article ed a removal VI, 1), con- XII, (now as it was Section 1 Article Section proof of ditioned on cause: that, . frequently

“It decided . . has been subject the control of where a term of office office, Legislature, abolish tribunal during the thereby constitutionally oust officer running would of his term It omitted]. [citations act, general logically seem ... a follow providing judicial for determination a forfeiture a they a ‘condition that breach the constitutional well while in behave themselves office’ ought permissible also to be . . .” .

Id., 51,139 (emphasis added). at A. at 625 supra, v.

Milford, followed in was Court Weiss provisions Ziegler, involving supra, a case the removal 1911, provided removal School for the Code of which hearing, by a Superintendents of District School “after majority the dis vote of school directors of board trict, neglect incompetency, intemperance, or for duty, immorality, hearing of which notice of at least one week has been sent . .” Id. . . mail accused Lumley v. 327 A. at also Pa. 643. See Hughestown Borough Council, Pa. 66 A. Town Case, Impeachment supra. (1949); 2d 833 Marshall process legislatively need cause and due created means of for elected civil officers removal especially emphasized 567, 88 Appeal, in Foltz Pa. Township Code, A.2d Pursuant Sewickley Township citizens of filed in the lower court a petition complaint, for the removal of the elected township supervisors. below, however, The court found insufficient cause to remove the officers refused to appeal Court, declare the offices vacant. Mr. On to this speaking Musmanno, Court, Justice for the no mal- held feasance or misfeasance been had shown and remov- officers, therefore, al of the possible: elected was not people any municipality, duly “When the con election, stituted select certain to conduct individuals government, representatives their local those people may only upon showing be removed from office perverseness criminality amounts to cul pable Court, indifference to their official duties. This speaking through Simpson, aptly Mr. Justice said the case of Vesneski, Appellant, Commonwealth ex rel. v. Reid, 333, 108 Pa. A. 831:

‘ people . are entitled to the services during of the officer the entire term for which (Lloyd him elected Smith, 35 A. 199), prescribed by unless he be way removed in the Constitution, if the is officer of- constitutional (Bowman’s ficer Case, 203), or Pa. 74 A. Legislature authority or under its in the man- provided by ner statute, Constitution or if the offi- cer is not a constitutional officer.’ There are mandatory certain required functions township supervisors, perform the failure to which subject will them to Appeal, removal. Crane’s 344 Pa. 624, 26 A.2d mean, 457. This however, does not they should be threatened with dismissal for honest er- judgment rors in or for in mistakes administration not by cupidity occasioned pathological People sloth. representatives demand of their government which is efficient keeping and highest meticulous with the standards of devotion to their they interests. But prepared not public to dismiss simply their officials perfection every minute

because do achieve operation. quite obvious It is of bureaucratic detail perform with his duties who must that the officeholder constantly hanging his over the sword Damocles the citizens who have can be little use to head initiative right expect the demonstration him advancing energy orbit their within welfare prescribed their duties trust.” 571-72, (emphasis added). Id. at 88 A.2d at 873 clear, of the foregoing, It is from the that the legislatively legislature shape the tenure of and frame together created civil officeholders must be considered requirement VI, all of Article Section only sufficient cause elected civil officers be removed for process. due The Constitution authorizes established adoption subject to of alternative means of removal express rule A removal that removal be cause. premised something scheme less is unconsti- tutional and void. provisions Philadelphia hold that the

We recall thus, and, Home Rule established such a scheme Charter matter, are unconstitutional. In the the recall of instant Mayor Philadelphia, pursuant provisions, to those attempted. Mayor’s legislatively office is creat- and, so, legislature may ed determine the method of Supervisors’ Township removal for that office. Milford Removal, supra. himself, elected Mayor, But is an officer,” removal, “civil his no matter what method employed, cause, hearing must be for notice and after Milford, supra; have been accorded the officer. See Georges Township Directors, School A. (1926); Reid, Commonwealth rel. ex Vesneski Pa. provisions 108 A. Philadelphia Charter, pursuant Home Rule enacted April 21, Act of seq., 1 et P.L. 53 P.S. § § require 13101 et seq., process neither nor cause due be- fore an elected may civil officer be forced to either re- sign upon or face Recall is “initiated a recall election. petition signed registered every such electors,” and petition di- against “shall name the officer whom it is (1). 351, Pennsylvania Code, rected.” Title 9.9—101 § Yet, presently written, as the is the officer’s Charter name, alone, motivating force serve behind VI, procedure his removal. to Article This antithetical duly Section of7 which ensures that Constitution elected officials from whim are removed office caprice. Thus, provisions fail the constitution- recall test, “clearly, plainly,” al palpably are invalid. and

The order of the court below reversed.

O’BRIEN, J., concurring opinion. filed opinion NIX, J., concurring filed a in which MAN- DERINO, J., joins.

EAGEN, J., opinion. dissenting filed a J., dissenting opinion. filed a ROBERTS, J., POMEROY, dissenting opinion. filed a (concurring). O’BRIEN, Justice opinion agree

I with the of Chief Jones Justice provisions Philadelphia Home Rule however, unable, I Charter are am unconstitutional. opinion agree reasoning Chief Justice opinion. concurring Jones hence this including Philadelphia legislative enactments, All presumed Charter, Home Rule constitutional. presumption provisions This if can be rebutted the recall “clearly, palpably plainly” Charter violate Singer Sheppard, Constitution. A.2d Pa. Pennsylvania deals Constitution Article VI removal. This article has and their “Public officers” “public dealing of- specific with removal two sections follows: ficers” which read as VI,

Article §6: be civil officers shall “The and all other Governor office, impeachment any misbehavior liable judgment not extend further but in such cases' shall disqualification than to from office and removal profit any under this Common- hold office of trust or accused, or ac- person convicted wealth. The whether trial, indictment, quitted, shall nevertheless liable be (Em- punishment according to law.” judgment and phasis supplied.) VI,

Article 7:§ the con- their offices on hold “All civil shall officers office, they while in themselves well dition that behave misbehavior shall be removed on conviction and any Appointed civil offi- crime. office or of infamous judges cers, record, the courts of other than pleasure removed at elected appointed. All civil been

shall have officers Governor, Gover- except the Lieutenant people, judges of Assembly and of the General nor, members by the Governor record, be removed shall the courts of hearing, full cause, notice due for reasonable after (Empha- Senate.” of two-thirds address supplied.) sis only sections of the Constitution

These two of civil officers. speak of removal to the issue ones that any re- opinion believes Jones Chief Justice long removal procedure as can be constitutional moval my opinion that removal is based on cause. It in the procedure specifically mentioned Constitution is invalid. opinion dissenting Chief Justice Jones

opinions Pomeroy Eagen of Mr. Justice Mr. Justice speak of the distinction between constitutional and non- Milford, Township Supervi- constitutional officers. sors’ Removal, (1927), 139 A. 623 court held that nonconstitutional officers could be removed legislatively provided manner, though proce- even dure was not mentioned in the Constitution. I find 1 impossible Township to reconcile with Con- Milford principles stitution and sound of constitutional construc- tion.

It is well constitution, settled opposed that a state as Constitution, limiting Federal is a As instrument. this court in Benn, 421, 432, stated Com. 284 Pa. 131 “ 253, A. (1925), power leg- 256 . . . of a state supreme islature is except in matters, all in so far [sic] may as it be restricted .” . . Constitution . As VI, Article 6 and 7 §§ must be construed as restrict- ing the allowable methods for removal of all civil offi- cers, becomes clear provisions “recall” Philadelphia Home Rule Charter are unconstitutional. court, past,

This 1, in the VI, has used Article § Pennsylvania Constitution, provides: “All offi- cers, provided whose selection is not for in this Constitu- tion, appointed shall be elected or be directed law,” in distinguishing constitutional from nonconstitu- purposes tional for officers of removal from office. Ziegler, Weiss v. 104, A. 644 193 (1937), court, this speaking XI, in 1 of Article Section (the VI, 1), forerunner Article Section stated: authority provide

“. so conferred to appointment the election or other officers neces- decided, My Township research indicates that since Milford only one case has dealt with the removal a nonconstitutional legislatively elected in a official See Marshall created method. Case, Impeachment (1948). All A.2d other cases Pa. appointed in deal removal of the issues officials. Since questions, express opinion on those cases I no involve different them. implies power sarily legislative to annex involves and (Emphasis supplied.) conditions of tenure.” pro- 1, implies VI, While Article Section offi- vide for of tenure for nonconstitutional conditions removal, cers, methods of said conditions cannot include 7, specifically enumer- VI, because Article 6 and Sections civil for removal all ate methods and reasons specif- It is settled that a conflict between officers. well re- general provisions ic and in the will Constitution specific provisions. Lennox v. solved of ddie favor Clark, Pa. A.2d specific language

I in Arti- believe removal VI, therefore, and, cle is not 6 and controls removal §§ permit a “condition of different tenure” that would method of for nonconstitutional officers. removal light, Viewed I believe the distinction between constitutional and nonconstitutional officers irrelevant question. on the removal provisions

The removal to all civil Article VI relate officers. As in- our an Constitution be viewed as must restricting powers strument legislature, the of the inclu- provisions sion of the necessarily removal the restricts legislature providing from for other In methods. Com. ex rel. 158-159, Smillie McElwee, A. Pa. (1937), this court stated:

“ . . principle . No firmly is more imbedded in our law than that when expressly pro- the Constitution single vides a particular method for accomplishing a purpose that method is . aboli- exclusive. legislative tion of function, certain offices is a the but (Citations omitted.) abolition is not.” officers (Emphasis original.) my opinion

It is that the constitutional scheme of re- comprehensive, covering moval reasonable and all civil appointed. officers both elected and Statutes which at- tempt legislate in by areas covered the Constitution rather than the Constitution must meet test of meeting the test the statutes. Constitution by constitutionally allowed I realize that removal legislature method be cumbersome. The proscribed courts, procedures however, cannot allow express opinion on the wisdom I no Constitution. necessity people common- of this of “recall”. If the I believe Con- allowed, wealth desire that “recall” stitution must be amended to allow it.

NIX, (concurring). Justice

Recognizing major importance to- of our decision day, I am those reasons which constrained to set forth I my occasioned decision in The issues as this matter. perceive assuming validity them whether, compliance provision, been sufficient there has accept- require the provision the terms of that as to with im- petitions. Secondly, and most ance of the tendered con- portantly, question validity of a recall is the light this cept language of the Constitution recognize, Mr. Justice Commonwealth. I as noted Eagen, reached that often a constitutional issue where a cause can on non-constitutional be resolved I grounds. salutary principle, generally this is While agree not be that it would Mr. Chief Justice Jones appropriately applied in- view instance. terest of communities in this Commonwealth numerous concerning feasibility provision, 1 believe of a recall responsibility, question has been to be our since thereby raised, issue and address the constitutional prevail. uncertainty avoid otherwise would opinion reasons, For Justice various Mr. Chief petitions appellees by Jones found the that the offered my judgment finding were insufficient. can be that upon solely sustained the no- invalidity of the affidavits by tarized the fifteen I circulators coordinators.1 and/or 114,286 petitions purported signatures. These accounted for in de- reasoning of the accept the Court and concur in of claring petitions the elimination these invalid. Since signatures to a signatures these valid reduces total.of accept the Board to require number insufficient unnecessary me to consider petition, is therefore signatures also remaining categories which were of to be deemed invalid. the con presented that of question

The most serious validity provision. I believe stitutional of a recall Pennsyl yi, of third clause in Article Section vania clear limitation Constitution stands as a power and legislature the sole of the in it establishes any of removing elected exclusive means for from office Commonwealth,2 regardless ficial in the of whether elected office “constitutional” concerned is considered a office, legislative in by or fiat. This an office created terpretation, my plain un view, in a is mandated I reading language provision. technical of that holding therefore concur with the Court provision Philadelphia in Rule Home Charter is unconstitutional. proper analysis meaning import

A con- a provision begin, stitutional with an ex- always, must as Further, language amination are re- itself. we re- minded at the is not to outset that Constitution construction, interpreted ceive a technical but is to be light v. ordinary language, rel. Tate Commonwealth ex (1891), Bell, 374, 22 it is entitled A. 641 and that construction, nearly may be, as accordance Armstrong, with the intent of its makers. O’Connor City (1930); 149 A. 655 Moers v. Read- Pa. officers, course, subject 2. All such also to removal process VI, 4, 5, 6, impeachment, upon §§ see Pa.Const. art. “conviction of misbehavior or of crime.” office infamous VI, See Furthermore, § art. of those Pa.Const. cl. 1. promulgating power in- rule home charter is derived from the legislature, obviously vested in the exceed cannot therefore legislative power. the bounds of

37 ing, (1853). 21 princi 188 With these Pa. fundamental ples mind, VI, construction in turn Article we Sec tion provides which in full follows:3 as

All civil officers shall their offices on the hold condi- they office, tion that behave themselves well while and shall be on conviction removed of misbehavior in Appointed office or of infamous crime. civil offi- cers, judges other record, may than of the courts of be power pleasure by they removed at the which appointed. by shall have been All civil officers elected people, except Governor, Governor, Lieutenant Assembly judges members of the General and record, by courts of shall be removed the Governor cause, hearing, reasonable due after notice and full on address of two-thirds of the Senate. plain reading provision A of this three reveals distinct relating clauses “civil removal of officers”. limitation, The first applies, clause without “all civil officers,” and directs that such officers “shall re- be moved” conviction of crime or misbehavior office. This many provision Court has held times this mandatory, Pennsylvania Bowers v. Labor Relations Board, 402 (1961), Pa. A.2d even self-exe- cuting, Hiltner, Commonwealth v. A. 307 Pa. (1932), applies officers, to all whether they appointed elected, they or and whether are the officers, so-called holding “constitutional” those of- an legislative Pennsylvania fice McSorley created act. Turnpike Commission, 134 A.2d VI, cast, clause second to Article Section how- ever, employs language in different It not man- terms. datory compulsory directory advisory nor rather but clarity, provision 3. For throughout sake I refer to this VI, provision Article Section In the Constitution of 7. VI, 17, 1966, May was found Article Section On Articles VI, VII, and XII of the 1874 Constitution were consolidated renumbered in Article VI. “ stating ppointed . civil officers [a] pleasure power removed at appointed.” (emphasis added). Recog shall been have nizing language, this distinction in the our decisions have permitted appointed removal officials Governor, be vested in ex other than the Commonwealth Attorney Benn, A. 253 rel. General v. 284 Pa. (1925) imposed permitted to be and have also conditions upon power removal, the exercise of the such as See, g., Pennsylvania Rela v. Labor “cause.” e. Bowers Board, Pennsylvania Turnpike supra; tions Watson 117, 125 Commission, A.2d 354 in provision The removal contained third and final for VI, Article “All civil 7 is found in clause three: Section by people removed elected . shall be officers by the Governor for ... on reasonable cause added). (emphasis address of two-thirds of the Senate.” reading language necessary A close is not to ob- this that, VI, in serve like the first clause Article Section admitting exceptions. its terms It mandatory, are of no indisputably officers, sets forth applies elected to all unambiguous language in absent method, the exclusive impeachment, in of- of crime or misbehavior conviction fice, con- removing No other such elected officers.4 language. may imposed reasonably struction be dissenters, however, applies The this clause assert that only officers, contending offices “constitutional” that opera- by legislature created are excluded from the construction, view, provision. my tion of this Such completely position The anomalous and untenable. only requires taken inter- the dissenters not different pretations completely language, but it under- identical symmetry provided by cuts all three of Arti- clauses VI, cle each of the three has a Section 7. While clauses application, they clearly provid- interrelated, distinct are ing comprehensive and exclusive mechanism 2, supra. 4. See note officers, requiring

removal.5 The first clause touches all exception upon without sec- removal “conviction.” comports principle clause ond that with the common law power appoint comprehends to remove. Clearly, appointed upon subject officers to removal subject “conviction” re- officials, well. Elected also upon conviction, by operation moval can be removed grounds. the third clause for reasonable attempt support dissenters their view VI, ignored clause three of Article Section upon this instance relying been a distinction has made some early this be- decisions of Court tween constitutional and non-constitutional Un- offices. til specifically Court had not held VI, third clause of Article other Section 7 was than removing exclusive method elected officers.6 How- ever, in Township Supervisors’ Removal, 291 Pa. Milford 41, opinion, 293, dissenting post p. 5. In his Rob n. Mr. Justice attempts argue erts to that the constitutional methods for remov al should by asserting not be considered exclusive that con such rejected by struction was Mc this Court in Commonwealth v. Combs, however, curious, (1867). 56 Pa. I as he 436 am to how rely can proposition, considering that case for his that the McCombs construing Court was It the Constitution 1838. emphasized should be the that the did not contain 1838 Constitution comprehensive removal scheme added to the Constitution Rather, 1874. provision anal the a former Constitution contained ogous only VI, to Pa. the clause of Article Section 7. See first Const, 1838, VI, view, my § in art. 9. no basis for In there terpreting language by relying constitutional on a case decided language before that existed. Further, question right McCombs addressed the legislature interpret to attach conditions a term of office. To to this provide to right include re- means for to ultimate movаl fails recognize to of- a condition of distinction between removing procedure fice and the to be followed for an incumbent from an may office. While a of a of office violation condition ultimately ground removal, a dis- result in for is nonetheless that tinguishable process may re- from the actual removal Article quired. Thus, VI, 7, under third clause of Section legislature is to free what may determine constitute reasonable grounds process removal, however, provide for is not free to different attaining this, for removal. As to Ar- clause of third VI, ticle Section 7 is exclusive. Comment, Law, 6. Pennsylvania See Current Problems in U.Pa. 99 L.Rev. adopted the rule (1927), A. the Court cre- apply offices to elected VI, Article 7 did Section provision legislature. The notion that by ated offi- constitutionally elected created mandatory only to Case, in Bowman’s expressed in dictum cers was first Court, Milford, (1909).7 225 Pa. 74 A. for this dictum through reasoning, elevated tortuous the di- decision, and established rule of first time to a non-constitutional chotomy between constitutional from the the latter exclude elective offices in order to VI, 7.8 Section provisions of Article of the third clause majority of the decisions It should be noted that constitu- between considered the distinction which have Case, statutory supra, down a In Bowman’s the Court struck 7. justice peace, a procedure removing consti- for an elected office, of Article tutionally clause as of the third created violative pre- VI, unfortunately beyond the ventured Section 7. Court case, however, say “nonconstitutional” cise in that to issue provisions for remov- offices within the constitutional not be unnecessary the Court’s only patently al. This dictum was not authority decision, for citation but was included without validity. its Com dissenting opinion, asserts that In his Justice Roberts Mr. Moir, (1901), Commonwealth monwealth v. 199 Pa. 49 A. 351 Weir, (1895), and Com Braughler 30 A. 835 ex rel. proposi McCombs, support (1867), his monwealth v. Pa. recognized that, dichotomy officials, tion elected noted prior first be It should decision in this Court’s Milford. legislature to power of the that all of dealt these cases dissenting opinion there legislatively abolish a created office. The acknowledge between the abolishment fore fails to the distinction existing of from an of an officer of an office and the removal fice. connection with the only upon, dichotomy was used the cases relied legisla legislature abolish right of the support provide tively no These cases thus created office. dichotomy is the legitimacy the consideration of this where right existing Abolition an from an office. to remove incumbent removal, wholly of an matter distinct from office is a See, g., question presently bar. e. to the therefore irrelevant Altoona, Smith, 541, Lloyd Carey (1940); 1 v. 339 16 A.2d v. Pa. 213, (1896). 176 35 199 Pa. A. rel, Vesneski v. also be noted that Commonwealth ex It should Reid, 328, sup- (1919) provides little 265 108 A. 829 likewise Pa. port position Vesneski While the taken in the dissent. Case, specifi- supra, repeated it from Bowman’s Court cally the dictum burgess was removable elected in that case held that the provided solely by the methods in the Constitution.

41 tional and officers were matters con- non-constitutional cerning appointive officials.9 The of Arti- second clause VI, obviously incorporate cle Section 7 was intended to appoint principle power common law to also encompasses power g., Field See, v. remove. e. Commonwealth, 478, (1859) 32 cit- Pa. 481-82 and cases ed language therein. While of these deci- at times may reading sions rationale, obfuscate their true close a compels simple principle the view that announced is legislature appointing authority fact office, each instance where it has created the even though provided agen- have for another officer cy to actually appointment person make to fill language the office.10 Since the of this is directo- clause ry provide legislature and the an un- is not mandated right removal, fettered not be in such a scheme would violation of Additionally, the terms of this clause. since right upon this clause confers an unfettered of removal the “appointing authority”, this is not exceeded procedure. more restrictive removal provide support

These decisions however no attempt transplant dichotomy Court’s Milford See, Allentown, g., City 597, e. v. 227 424 Pa. A.2d 888 Naef Board, Pennsylvania (1967); Bowers v. Labor Relations 402 Pa. 542, Township School (1961); Buell v. Union Dis 167 480 A.2d trict, Pennsylvania 567, (1959); Watson v. 395 Pa. 150 A.2d 852 Commission, Turnpike 117, (1956); Com 386 Pa. 125 A.2d 354 Randall, 302, monwealth ex rel. Reinhardt 751 v. A.2d 356 Pa. 51 101, Flynn, (1947); Pa. Commonwealth ex rel. Houlahen v. 34 348 30, Philadelphia, (1943); Kraus A.2d 59 A.2d 393 v. 337 Pa. (1939); 190, Hadley, (1937); Suermann et al. v. A. 645 327 Pa. Zeigler, Weiss 100, v. Commonwealth (1937); 327 Pa. 193 A. 642 Hiltner, ex Attorney rel. General v. 307 Pa. 161 A. Madden, (1932); Muir v. Com (1926); 286 Pa. 133 A. 226 Bern, Attorney monwealth ex rel. General v. 284 Pa. 131 A. (1925). concept 10. This expressed by has referring on occasion been empowered legislature officer to fill office as the See, “agent” g., legislature. Pennsylvania e. Watson Turnpike Commission, (1956); Com 125 A.2d Benn, Attorney monwealth ex rel. General v. Pa. 131 A. cases First, of elected officials. it must be reiterated although language is second clause advis- ory, lаnguage mandatory third clause must Further, be phrase followed. the use of the “all by civil people” officers any legiti- elected eliminates mate group basis for the of exclusion within this class.11 fallacy reasoning Court’s becomes Milford apparent

more VI, in view its concession that Article Section 7 “is not frequently limited to what are termed 52, constitutional officers . ”. 291 Pa. at 139 A. attempted 625. That Court then avoid the effect XII, fundamental construing concession Article Section 1 of the (now VI, Constitution Article Sec- l)12 tion express superseding VI, as terms of Article Section interpretation, 7. This refer- reached without ence single authority, ato is abhorrent to the fundamen- principle tal specific constitutional construction that provisions, VI, such Article as unless other- Section clearly wise indicated, against prevail must inconsistent general provisions. Buckley Holmes, v. 259 Pa. (1917).

A. 497 XII, nothing Article 1 has at all Section to do with the removal of civil officers. supported by

11. This view expressly fact the clause specified excludes certain elected civil officials not intended to be provisions. Thus, covered within unius est expressio its doctrine clearly applies. exclusio alterius See Pane Common wealth, Department Highways, 422 Pa. 222 A.2d 913 (1966); Witkin, Commonwealth ex rel. Maurer v. Court, however, A.2d 317 apparently ignored Milford this basic rule of construction. XII, provided 12. Article Section 1 in full as follows: All provided officers whose selection is not for in this Con- stitution, appointed shall may be elected or be directed Provided, law: a held on a That elections of State officers shall be held on general day, election and elections of local shall be officers when, case, municipal day, except election either special required unexpired elections to fill terms. XII, 17, 1966, Article Section 1 May was consolidated on with Arti- VII, VI, cles present VI and renumbered to its Article Section proviso. amended to delete the Constitution, provisions concerning In the all VI, removal of civil officers were contained in Article “Impeachment entitled and Removal from Sec- Office.” through provi- tions one three this Article forth all set concerning impeachment. (now sions Section four Arti- 7) only VI, processes cle set forth the Section available impeachment. for removal other the other than On hand, Officers”;14 XII Article was entitled Sec- “Public Article, provision upon tion one of this in Mil- the relied ford, accomplished give no more than to As- General sembly power provide creation, for the election appointment pro- and of “whose selection is not officers ” in vided for of Constitution . Pa.Const. XII, powers, particularly art. 1. These where § one, wholly the office created is an distinct elective from removal.15 I can find no basis for Milford interpretation provision superseding Court’s of this VI, Article Such a constitutes Section 7. construction only language plain a serious distortion of Constitution, purpose but subverts the fundamental of VI, third clause Article which was un- Section doubtedly provide greater degree security in of- a of provision governing judges A removal of the courts 13. Article, V, Judiciary record was included in the Article Section V, § 15. Pa.Const. of art. 15. XII, with, Article Section 1 was inter consolidated 14. alia, VI, provisions of Article Article VI en- the new was 12, supra. Pom- titled See note In Mr. Justice “Public Officers”. 263-264, 10b, opinion, post pp. eroy’s dissenting tended “adoption” is n. con- legislative should be viewed as a that this consolidation gloss judicial imposed Article former XII, however, clearly If reasoning, strained. Section Such is XII, legislature 1 to Section had intended the former Article VI, operate exception Section did not as an clause of Article to the third express provided by language. This it it could so have interpreted ac- do. The should therefore be 1966 reconsolidation together, in Arti- cording accomplished; grouping to what it “public Constitution, relating offi- provisions cle VI of the all cers”. encompassed traditionally power appointment 15. While the removal, recognized corresponding power was no such of an the case elected official. appointed officials fice to the elected officials than the compelled provided I therefore for clause two. am judicial view the exercise of decision as blatant Milford ignores reaching the clear in- legislation, result which interpreting purpose tent of the document it government. achieving theory Court’s disregard past to This has not hesitated in the Court prior precedent decision was where it believed that a g., premises. See, e. on erroneous based or invalid (1974).16 Sutherland, 177, 327 A.2d 623 Frame v. today duty my It firm conviction Court that.the interpretation Article bound to correct the distorted VI, propounded by the Court Section 7 Milford blindly My. progeny.17 own view is followed its meaning, rather we restore its true should to that section undoubtedly be than exacerbate the confusion which will to majority dissenting opinions occasioned day. implied that

There in have are those the dissent who compliancе meaning of upon insistence clear progress pervert Constitution would thwart people municipality instantly involved. will of the in the I them the wishes remind that the embodies Constitution aspirations people of this of all of the Common- the final ar- wealth and alone must be should be any proposed validity change biters in the as to the of segment population, terms of that document. No of the government no this au- branch of is entitled to assume thority. Charter, illustrious as framers of the they might people Philadelphia, in been, have and the adopting provisions, circum- were those nevertheless Frame, expressing 16. This the view that writer dissented reject- majority’s opinion justified only by could that case my ing longstanding prior therein. The crux cases relevant by majority sim- in Frame was reached its result dissent that the ply ignoring previous those decisions. Case, See, Impeachment g., Marshall A.2d 30 e. legislature. power they received from the scribed people right Thus, of the question of the this not a framers of Philadelphia nor the eminence authority legislature Charter, Home Rule but right this man- upon municipality to act in to confer a determines ner. The source of ultimate people legitimacy delegation legislative is the expressed views have been Commonwealth and their provided through perimeters their Constitution. may without an affirm- the Constitution not be exceeded expression citizens of this ative from all Common- people stated, my As wealth. I have it is view that expressed through intent their Constitution an have carefully offi- by which set defined methods elected forth during office. I can- cials be removed term of their agree ignore these with the dissenters would who accept provisions, I nor the view of Mr. Chief Justice can procedures. Jones, attempt modify who these would If, fact, people Pennsylvania are convinced device, they governmental must is a alone desirable through procedures make that their established decision amending the Constitution. MANDERINO, concurring J., joins opinion. in this (dissenting). EAGEN, Justice general principle of this

It is a well-established Court that we will constitutional issue unless not determine a necessary absolutely and until determination controversy See, g., Lat resolution of the before us. e. Review, Compensation Unemployment tanzio v. Board of Triangle (1975); Binder v. 336 A.2d 595 Pa. (1971); Publications, Inc., 442 Pa. 275 A.2d District, Lynch v. Owen J. Roberts School my view, should In we need not and A.2d 1 constitutionality provision of recall decide Philadelphia this See Home Rule Charter at time. compare Authority, Valley Ashwander and v. Tennessee 346-47, 482-83, U.S. 80 L.Ed. 688 S.Ct. (1935) J.). (concurringopinion,Brandéis,

If, however, juncture we must decide whether at Philadelphia’s Pennsyl- or not recall scheme violates Constitution, vania must not. As I conclude that does opinion correctly observes, of the “the Chief Justice Philadelphia entire Home Rule has the force Charter legislature” and status of an enactment of the and “[a]s presumed such, it is constitutional the burden proving allege a violation rests on those unconstitu- who tionality.” Opinion of the Chief Justice 244. The opinion, however, provision concludes that palpably “clearly, plainly” VI, violates Article Sec- Pennsylvania tion 7 of Constitution it is not because predicated upon “amounting criminality cause or mis- Opinion while in behavior office.” of the Chief Justice agree. at 244. I cannot impeachment provisions addition to the contained VI, 4-6, Pennsylvania

Article Sections Constitution VI, in Article Section contains three additional and dis- provisions pertaining tinct offi- removal civil cers:

“All civil officers shall their on the condi- hold offices office, they tion that behave themselves well while in and shall be removed on conviction of misbehavior Appointed office or of infamous crime. civil offi- cers, judges record, may other than courts of pleasure power by removed at the appointed. have shall been All civil officers elected people, except Governor, the Lieutenant Gover- nor, Assembly judges members of the General the courts of record, shall be removed Governor cause, hearing, for reasonable after notice and full due on the address two-thirds Senate.” recognizes, long however, As the Chief Justice we have provisions pertaining held that the constitutional

47 regard con- of civil are exclusive with removal officers pro- only, stitutional officers and that the constitutional provided officers, vision whose is not that “All selection Constitution, appointed for in this shall or be elected as may VI, (now in Article be directed law” contained 1) implication necessarily Section that contains non-constitutional, legislatively-created of such of- terms provided may ficers or be conditioned terminated as legislature. Thus, Township Supervisors’ in Milford Removal, (1927), A. we held Pa. “providing judicial that forfeiture a statute a on a determination a breach of constitutional ‘condition [township supervisors] well behave themselves ” while in office’ not violative of the Constitution. holding believe, however, I do not enunciated requirement legislatively-sanc- a constitutional that a procedure tioned for the removal of a non-constitutional cause, predicated upon necessarily elected officer must be required procedure pred- more be than it that such a per- upon “judicial I icated a determination.” am so paragraph in in the same suaded because of fact that holding, specifically announced this Court recognized subject that “where a term of office is legislature, control of the abolish tribunal office, thereby constitutionally the officer dur- oust ing running (Quoted in of his term . . .” Id. opinion Clearly 245.) such Chief Justice constitutionally-permitted an elected civil offi- ouster of finding criminality cer or misbe- require would not havior in office. opinion now con- of the Chief Justice nevertheless provisions require VI,

cludes that the of Article Section 7 elected civil that the of even a non-constitutional removal is, Philadelphia officer, Mayor unquestionably criminality upon amounting conditioned cause that, quasi- misbehavior office and contrast judicial procedure elected incumbent for removal an Philadelphia in the

contained Charter of which we upheld Impeachment in Marshall Case, (1948), A.2d procedure the recall in the contained present my Home Rule Charter unconstitutional. view, language the support of the Constitution will not such language I construction. believe that the con- emphasized by tained Article VI, Section 7 and the establishing requirement Chief Justice as the of cause interpreted must appears. be in the context in it which Thus, the statement that “All civil officers hold shall their they offices on the condition that them- behave selves well conjunction while office” must be read in requirement they with the that “shall be removed on com viction of misbehavior any office or of infamous crime,” and it must be limited to that context. If this provision really means that all officers are entitled to re- length tain their long for the offices of their terms as they well, following provision behave “Appoint- that may ed pleas- civil officers . . . be removed at the ure of the by they appoint- which shall have been blatantly contradictory. ed” is provision, The third that dealing only officers, with elected civil require does “rea- sonable cause” by before an officer can be removed Governor on the address of Senate, two-thirds of the but persuaded I am not that proce- alternative removal permitted dures regard with to non-constitutional elected officers inevitably must be conditioned “reasonable cause” they more than inevitably must be condi- upon tioned a two-thirds body. vote a deliberative My greatest accepting obstacle to the Chief Justice’s analysis is fails to address itself distinct particular process. nature of the recall Clearly in system our representative duly democracy an officer by people chosen should not be from office removed by representatives his fellow people they exec- —be utive, legislative, judicial cause; reasonable —without right otherwise people regard to the se- lection of these officers But would be undermined.

concept contemplates term of officer an upon democratically people is elected conditioned remaining subject referen- officer’s to a democratic Thus, people. may dum he wherein removed clearly provision the removal in the most Constitution analogous of- to the recall of elected a non-constitutional provides VI, ficer the one in Article which Section 7 “Appointed civil officers . be removed pleasure power by at the have shall appointed.” been I therefore see no constitutional bar people removing pleasure non- as a whole their appoint- people constitutional officer the themselves have (elected). ed interpretation my Pennsylvania

Because of Con stitution, analysis I Leath find of recall in v. Gordon erman, (5th 1971.) pertinent 450 F.2d 562 Cir.

present case, though even decided on case was basis of the Federal Constitution. A commissioner Florida, County, sought declaratory Dade in there junctive against relief carrying out of elec a recall pursuant tion procedures in the contained Dade Coun ty by expressly permitted Home Rule Charter and Florida in Constitution. He contended absence provision requirement deprived of a of cause office, him of property right, his a valuable without due process, agreed pan and the District Court with him. A el of unanimously reversed, stating the Fifth Circuit in pertinent part: provision

“Where requires a home rule a charter charges proce- statement of in petition, a recall such by dure is not process necessitated notion of a due notice, required command for very but is nature political system permits for only removal provides cause. County, however, Dade the charter whereby a structure commissioners serve at the will such, need made electorate, and no statement as of reasons for recall. be-

“Furthermore, difference there is a fundamental public official expulsion of a or removal tween activity by the voters. the state same governmental body required to act Any as fairly, Insofar is not true to a voter. but that elector concerned, an the United States Constitution reason, no good or for reason, vote for a a bad reason whatsoever.” omitted.] [Footnote supra Leatherman, Petitions Gordon 566-67. rehearing rehearing en were Gordon. banc denied above, same consider- the reasons believe the For stated I Pennsyl- respect applicable here ations are vania Constitution. opinion Musmanno

Nor is the of the late Mr. Justice quoted in (1952), Appeal, Foltz 88 A.2d 871 opinion Justice, authority to the con- Chief trary. Foltz First, it should be noted that the issue complaint seeking of town- whether a the removal judicial ship providing for officers, pursuant to a statute township’s registered removal at the behest of 5% neglected to question if electors the officer in refused Thus, duties, perform necessary his cause. stated providing for only procedure Foltz not did involve a electorate, it was recall after but a democratic vote Hence, the lan- ground. decided on non-constitutional guage quoted opinion in the Chief Justice to of the clearly unconstitutional, suggests is extent it recall analy- only Second, significantly, dictum. more and clearly opinion is in that sis of Mr. Musmanno Justice upon right people to the services based of the retain to elected, of the need officers have and themselves protect people arbitrary their removal of from opinion language provides no of the chosen officers. protected holding people need to be basis from themselves. province legislative

It is not our here to determine the subjecting wisdom of elected officers non-constitutional to petition recall minority elections a my view, however, electorate. constitu- there is no impediment scheme, tional procedure such to a and a whereby by majority such an officer may be removed very people vote of the who have him elected does palpably “clearly, plainly” Pennsylvania violate Constitution.

Although I infirmity no find constitutional in the re- provision call Philadelphia’s Charter, Home I Rule would not validity petition decide the of the recall on the existing record, up point because to this neither side to litigation given has been opportunity an in an ade- quate hearing properly to be litigate heard or to the va- lidity petition. And, say, op- needless to portunity to be heard is system ju- fundamental our risprudence.

In this connection, it should first be noted that neither the Citizens Committee to Mayor Recall nor [Committee] Rizzo, to whom proceedings the recall directed, were was given the opportunity present evidence before the Board of Then, Elections when the issue of [Board]. validity petition came before the Court Common Pleas in an action instituted on behalf of Committee Mayor permitted Rizzo was intervene, Mayor neither Rizzo nor the Committee was permitted to introduce evidence other than that which the Board had In fact, Mayor considered. when permission Rizzo asked for to call as witnesses before the twenty-five court individuals who circulated the sheets of petition the recall through testimony and to show these witnesses large the affidavits attached number of manner, sheets1 were false in a substantive the court request. ruling, my view, denied the This error, was clearly foreign to the fundamental required 1. The affidavit to be executed the circulator each if any legal validity. sheet the sheet is to have principle parties litigation given to a the should opportunity Mayor to be should Rizzo have been heard. given opportunity prove the his offer what indicated. Likewise, given op- the Committee should have the been portunity by Mayor to refute the offered Rizzo evidence present all relevant evidence it deemed the chance to necessary resolving validity to aid the court the petition. ruling denying parties oppor- of the court

tunity above, premised to be on heard, as related was validity pe- court’s conclusion that the issue of properly court action in man- tition was before the in an damus, that, the mandamus action followed since hearing agency, the Board, before the an administrative court’s record.2 review to the administrative was limited circumstances, disagree. Under all the I proper under First, was I am not convinced mandamus remedy adequate existed the circumstances. If an en- not have been law, unquestionably should mandamus remedy at law And, my view, adequate an tertained. opinion provided Law. The Agency the Local under in- Agency Local Law was states the the Chief Justice validity applicable to the as because the Board’s decision petition “adjudication” was not an term is the Act.3 defined under ruling proper, should he 2. As court’s that mandamus was to the ruling support an- upon in of this relied noted that authorities Law, Agency passage Act of December of the Local tedated seq. § As to seq., § et P.L. 1 et 53 P.S. ruling scope adminis- court’s its of review was limited record, was based trative precedent it should be noted that hear- agency a full conducted where the administrative course, ing; instantly, did the Board not. Law, provides: 11302(1) § Agency 3. Section Local 53 P.S. decision, decree, order, ‘Adjudication’ “(1) any means final affecting or personal ruling by agency determination or a local any or obligations property rights, privileges, immunities or adjudication parties proceeding in which the all of the decision, decree, order, made, de- but not mean final shall court, proceeding or ruling upon a before a termination based property, of. or which involves seizure or forfeiture pardons.” paroles or involves opinion gives justify two above reasons Charter, Philadelphia First, Rule Home statement. provide partici- seq., for 9.9-100 does not 351 Pa.Code et any proceeding before the pation in Committee Agency 2(3) Second, the Local Section Board. since any person 11302(3), “party” Law, defines P.S. § appears agency, proceeding in local and who before a a appear in the Board a since not before Committee did proceeding, party. it does not constitute a Mayor appear not Committee and Rizzo did

While given opportunity, Board, before the were not is, hearing, because the Board not conduct a full did parties a in could proceeding, which all the interested appeared Therefore, have heard. second and been given why adju- not reason the Board’s decision was an merit, dication not without because the Court should reasoning determine what from have should occurred did, agree in fact, what As reason, to the first I occur. provide hearing. the Home Rule does not Charter a Rather, requires petition. it the Board examine But, it is now well established that 4 of the Local Section Agency Law, 11304, adversary mandates an P.S. § hearing other- whenever a determination is made that “adjudication” 2(1), wise constitutes an under Section 11302(1).4 53 P.S. in- Since Board’s determination § stantly “adjudica- purview was within the definitional respects except appear- tion” all as to the Committee ing in proceeding, e., hearing, adversary i. an before Board, Agency Law, and since 4 of Section the Local 53 P.S. applicable, required if such § would have hearing before the Board at which the Committee could appeared, have I see no reason to read the Home See, g., Young District, e. Littlestown Area School v. 24 Pa. Dir., Cmwlth. (1976); Kudasik Board 358 A.2d 120 v. Port District, Allegheny School 23 Pa.Cmwlth. A.2d Ed., (1976); Pittenger, Flinn v. Sec. 19 Pa.Cmwlth. 338 A.2d Duquesne District, (1975); Hutnik v. School 8 Pa.Cmwlth. 387, 302 Trinity Dist., (1973). A.2d Nicolella A. Sch. Cf. 281 A.2d 832 Agency conjunction Law the Local

Rule with Charter Agency the exami- Law mandates and rule that Local pursuant Home Rule petition nation of the recall adversary an Charter be in the context of conducted hearing.5 statute and the effect of a The Charter has Agency conjunction the Local should be read Law. instantly, Agency

If the Local Law had been done such hearing prior adversary would have mandated a full making determination, its final Com- Board hearing Mayor appeared mittee at the could have posi- present respective evidence and advocate their regard applied in deter- tions with to the standard to be validity petition application of mining the petition This those to the herein. standards involved procedure injus- would the fundamental have eliminated proceedings. tice which believe in these I occurred assuming proper form of Even mandamus was the ac- tion, hearing, I still remand for novo. would this case a de dissenting opinion, argues In his 5. Justice Mr. Roberts that de novo mination a review court should not follow an administrative deter- regarding petition required a recall as is a nomina- Code, 3, 1937, petition tion under the Election Act of June P.L. IX, amended, § § Art. as of 25 P.S. because signatures petition. vast number of involved in a recall And while suggest Mr. Justice Roberts does not that because of this hearing required factor a level ports fair full and is at the administrative pursuant Law, Agency position sup- to the fully Local his Agency apply the view that the Local Law should such hearing required that an administrative is and review the court following limited the administrative determination. To the express Agency hearing extent that the failure to a view that the Local applicable instantly Law is is otherwise or that a full administrative required implies hearing required that such a is not level, agree at the administrative erts. Whether in the I cannot with Mr. Justice Rob- petition of context a nomination where court, hearing a full is afforded before the or in the context petition hearing arguably required recall where a full is before body, hearing required the administrative a full at some level proceedings, body of the be it before the administrative or the court, petitions because recall confront the decision maker with Indeed, hearing triable issues of and a fact is therefore essential. cleаrly recognizes provides the Election Code this because it hearing fair before full and the court. proof rejected offer above, As noted the trial court an by Mayor filed to show that numerous affidavits Rizzo part court said: petition false.6 The as of the recall were proceeding particular

“[Njone of it to this is relevant limiting re- perceives the court to a which the as court did, ‍​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌‌​​‌​​​​‌​​​​​‌​‌​​‌‌‌​‍legal view actions of what the Board what have taken.” proper form of ruling, if mandamus was

This even action,7 was error. scope of re- ruling limit the was to effect of this the Board that which

view the mandamus action to opportuni- thereby deny Mayor Rizzo considered and invalidity of the ty present to establish evidence limited ruling so also Furthermore, petition. could Committee proceeding that the scope petition, validity evidence introduce relevant, and competent, Thus, rebuttal otherwise. implies Pomeroy dissenting opinion, Justice Mr. his n. signatures were offer, proved, establish the Mayor’s would not if “irregular.” I were genuine only some affidavits not cannot but affidavits offer, proved, would establish agree. if disregarded. false, be have to affidavits would were false. If having an affida- any rejection sheet not requires The Charter vit. offer, proved, be- Thus, if 9.9-101(3). § 351 Pa.Code because allegedly false affidavits cause the number of not then signatures that could thereon of sheets and number numerically in- counted, petition be would have shown the dis- agree a court’s Nor can I a recall. sufficient to warrant presenting evi- Mayor from preclude as to cretion so broad pro- petition level validity dence as to the ceedings. if, suggested ear- as I have ruling 7. The would have been correct was lier, Board applicable and the Agency Local Law the in that hearing adversary because thereby required to an conduct hearing the at introduced have been context the evidence could before Agency Law But, Local it is said the the Board. since right no had inapplicable Mayor and the Committee and thus the present evidence appear and hearing Board to at a before the ruling con- examination, in the the when Board conducted its the opinion as the clearly erroneous text of a of action was mandamus Jus- Chief opinion the of recognizes. the the Chief But Justice effect, denied ruling, in recognize tice fails erroneous to how this litigate the fairly parties fully any opportunity the validity and ever to and in the maker petition same decision before the same forum. perhaps aid in es- which would determinative evidence petition tablishing validity invalidity recall the proceed- these never at time in has been introduced prepared to ings. circumstances, I am not such Under validity petition if manda- on the recall even rule proper mus form of action. was the Mayor been denied Both the and the have Committee opportunity present in order to to evidence relevant before the properly advocate, forum and in the same petition. validity maker, of the recall same decision to right, opportunity, this is fundamental This indeed system prepared rule to law, our I am not thereby finally presented other issues determine parties validity petition have been of the recall where right. denied this sug- applicable Agency as I have

If Local Law gested, parties notified then all should have been com- proceedings present relevant and and allowed petent hearing the Board. before evidence review, then limited Court Pleas would have Common only presented to and consideration of that which was Agency proper. Local the Board If the would have been cases, the man- inapplicable, Law is then as with election ei- proceeding been limited. damus should have should event, ther the Board both the Committee opportunity litigate have been afforded full and fair validity petition before Board either presented this or the court. As the record has been litigate opportunity been af- no fair has Court full and suggest respectfully parties. Thus, I forded the proper procedure to be fol- should determine Court Pleas, lowed, vacate order of the Court Common hearing and remand the for a de novo. record POMEROY, (dissenting). Justice today Court strikes down violative the Con- Pennsylvania provisions stitution of the recall of Phila- ground delphia’s Home As an alternative Rule Charter. hold that decision, of the would three members Court directing pleas erred in the court of common Philadelphia “the Board of Election of [hereinafter filing petition ten- accept recall should Board”] Rizzo” to it to Recall by dered the “Citizen’s Committee relative “The Citizen’s [hereinafter Committee”] L. mayor Frank Philadelphia, incumbent Hon. Rizzo, place question before should recall 1976). (November, regular electors at the next election Being erro- conclusions are that both of these convinced neous, respectfully I must dissent.

I question is that of constitution- The first and basic ality, рrovision invalid for if the were indeed other score, this there be no to consider would need challenges the court of to the correctness of the action of pleas. common premises of approach question,

In its to this the initial opinion announcing are of the Court1 decision correct, conclusion but in the final overlooked acknowledges that is reached. Mr. Chief JONES Justice Philadelphia has the Home Charter of Rule legislative enactment, its force and status of a constitutionality judged light.2 He also be this NIX, separate 1. Mr. Justice concur- O’BRIEN and Mr. Justice ring opinions, Pennsylvania hold recall unconstitutional under by grounds go beyond Constitution on enunciated which those opinion of the announcing Chief Justice in his the decision however, concurring opinions, agree Court. Both the con- with upon premised clusion of the Chief Justice that removal must opinion dissenting any cause. part Thus references of the applying opinion read as Chief Justice should be opin- equal concurring parts separate force to those hold that ions of Mr. Justice O’BRIEN Mr. Justice NIX which upon removal must be based cause. IX, Pennsylvania, Under Article Sec. 2 of the Constitution any municipality adopts “may exercise home rule charter Constitution, by perform any function not denied its time.” Assembly home rule charter or the General principle accepts that statutes the well established presumed to be declared to be constitutional and are plainly” vi “clearly, palpably and unconstitutional unless Singer Sheppard, 464 v. olative of our fundamental law. Daly Hemp 393, 897, (1975); Pa. 387, 346 A.2d 900 (1963). The 835, hill, 263, A.2d 840 271, VI, however, 7 of the Con Court, Article Sec. construes any Pennsylvania prohibit of removal stitution of judg This, my except for in elected civil officer cause. ment, provision. is distortion of the constitutional a stipulates civil officers that

Section of Article VI they themselves that “behave hold office on condition they be provides that, if should well in office” while any in or of infamous convicted “of misbehavior office crime,” respect they offi- shall be removed. With civil elected,3 provides removal cers that who are Section by cause”, the shall be the “for reasonable Governor not, is address of This section two-thirds of Senate.4 17, Act, § April of Home Act P.L. Rule Charter provides city taking advantage § of P.S. that complete powers legislation Act and administration “shall have of functions, including power au- municipal in thority relation to its See prescribe .” city the elective officers Case, Pa. Addison 122A.2d officers, may, Appointed officers, distinguished 3. elected from except Pennsylvania appoints judges, by power them. for be which removed Constitution, VI, Art. Sec. VI, 4. The full text of Art. 7 as Sec. follows: “All offices on the condition civil officers shall hold their office, be they that well in and shall behave themselves while any infa- in of removed on conviction of misbehavior office officers, judges Appointed of crime. other than mous civil record, power may pleasure of removed of courts be by they All officers appointed. civil shall have been Governor, except by people, the Lieutenant elected Governor, judges of the Assembly and members of the General record, reason- courts for by of removed the Governor shall be cause, hearing, able two-thirds on the address after due full notice and the Senate.” by of two provided section Address the Senate as in this is one public meth- removing The other traditional methods of officers. VI, impeachment. od Gover- provides that “The Article Sec. 6 impeachment nor all other shall civil officers be liable impeachment misbehavior in office.” The sole- lies only guarantee however, a be officers removed in the pursuant case a conviction or Senatorial procedure; merely address mandatory it makes shall be removed either of those eventualities. by

idea that a conviction of an crime office-holder court or of Senate, some is a other misbehavior qua sine non of is nowhere to be removal found Constitution; altogether rather a creation it is majority of the Court in this case. kept

It mind, is to majority does not dis and the pute, mayor office is not constitutional position;5 legislative only action, exists virtue of and in the Philadelphia, by case of created the Home is Charter, Rule 1927,6 Section the 1-102. At since least Court repeatedly has is held that an officer whose office by legislature may legisla created the be removed the as may provide. ture 100, v. Ziegler, Weiss 193 A. Pa. 327 642 (1937); 572, Beattie, Commonwealth 364 73 v. Pa. ly in Representatives the (Sec. 4), impeachments House of and all Senate, by tried the mem- concurrence of two-thirds the present being required (Sec. scope bers 5). in The difference address, grounds the by for impeachment removal means of and respectively, is in provisions unclear. See the of these discussion 5, Reference Pennsylvania Manual Con- Judiciary, No. The 1967-1968, V, seq. part stitutional Convention of 157 et public 5. A by officer whose office is the Constitution established Constitution; legisla- be only provided removed the the power ture provide has no Bow- to a method for his removal. Case, 364, man Impeach- 225 (1909). Pa. 74 A. 203 See Marshall Case, Note, 304, ment Removal generally, 360 (1948). Pa. 62 A.2d 30 See Pennsylvania: Public The Constitutional Officers Provisions, (1951). 99 U.Pa.Rev. 829 power 6. The legislature regulate the and inci- to control the dents of by by an forcibly office it the created was enunciated Court century ago: more than a Constitution, having legisla- “Not been mentioned the the ture was left power du- prescribe unrestricted what the to be, tenure, ties of the length office what should what the of its emoluments, its Having power it how should be filled. create, they regulate, de- also even have stroy.” McCombs, 436, (1867). v. Commonwealth Pa. 439 56 also, Weir, See Braughler Commonwealth ex rel. 165 Pa. 289, 30 (1895). A. 835 60 (1950); Township Supervisors’ Re

A.2d 664 Milford moval, Town 291 A. Pa. Milford “although VI, ship squarely article Court ruled that VI, Constitution; section now Sec. Art. [of 7] frequently constitutional limited to what are termed having applicable legislature, officers, it is not where right length office, has made fix the terma contin by judicial other proceedings, on determinable gencies passage time.” 291 at than the mere Pa. “if point 139 A. at held 625. At another Court statute, providing elec a fair construction of [the that, public un officers], tion of in the conclusion results it, conditionally elected der only were intended leg specified term, given to for a must be that effect provisions of intent, notwithstanding article islative Ibid, VI, .” section Sec. [now 7] Impeachment (my emphasis).7 A. at In Marshall involving the Case, (1948) a 62 A.2d case Philadelphia,8 held that Receiver of Taxes of Court one, the office constitutional involved was not a procedures of the subject incumbent to the removal City impeachment creating office, viz., statutes Adhering Council. held to what had been Milford Township, office supra, “if an the Court declared that Legislature, establish creature of the the latter can 310, method for 62 Pa. at the incumbent’s removal.” 360 Ziegler, Township supra, and its 7. In Weiss v. of the rule Milford provisions of legislative antecedents for removal was extended appointed officers. attempt stage surrounding to re- litigation 8. For of the later the Taxes, Impeach- Mr. Case, move Marshall as see Marshall Receiver of 326, (1949). evidence ment Pa. 69 is 363 A.2d 619 There Philadelphia that draftsmen of the had tor- Home Rule through litigation they sought tuous Marshall in mind when provision quicker whereby procedure” to deal “a and better problem public unsatisfactory See Charl- of an servant. Cale, Edgar ton F. Chute and B. “The Commission Charter Work”, 1950). paragraph 1 Shingle (May, Its The also 13 102 See Philadelphia which the Annotation to Sec. Charter 9-100 of the impeachment procedure of June refers 1919, “the under the Act IV, experience P.L. Art. Sec. thereunder.” Kelly A.2d at 33.9 See also rel. v. Commonwealth ex Sanderson, Pa.County (C.P.Lack.1891). Ct. 593 succinctly by on subject law this summarized (later Justice) Jones, Mr. Justice Alvin Chief Charles writing for Court, Pennsylvania Turn Watson v. pike Commission, 117, 125 (1956): Pa. A.2d

“It beyond is therefore re- established this State spectable controversy legislature cre- where the that, ates public impose office, may it lim- such terms and itations with reference to the an tenure or removal of incumbent nothing as sees fit. There is in the Con- stitution prohibiting while, such action on the other hand, XII, Article Constitution], Section ex- [of pressly admits at it.” Pa. at 125 A.2d 356.10 Township, purporting

While not to overrule Milford supra, announcing progeny, opinion and its the deci- sion of attempts explain away the Court cases these stating although they re- different methods allow prescribed moval from those “the Constitution, always premised upon method chosen must be cause” and this notice and cause must be “after established hearing” permit be sufficient under removal (opinion 245). Justice, Constitution Chief ante simply say this; cases has do not Chief Justice chosen to requirements read such into them. separate concurring opinions, Mr. Justice O’BRIEN

and Mr. Justice NIX hold recall unconstitutional grounds go beyond opinion those announc- provision If 9. no for removal an officer in a is made statute office, creating appropriate method re constitutional Pennsylvania Turnpike moval be must followed. Watson Com mission, 117, 123, 125 A.2d 356-57 XII, officers, provided Art. Sec. “All Constitution Constitution, provided whose selection shall appointed provided by elected or law. This VI, Pennsyl- clause now Article Sec. 1 of the Constitution vania. 62 O’BRIEN Mr.

ing the Court. Justice the decision of relating procedure civil that removal would hold specifically in the Constitution mentioned officers not (1) on his belief prohibited. this conclusion He bases specifically enumerate VI, that 6 and 7 Art. Sections of civil of all removal methods for reasons and exclusive no there is purposes of removal ficers, (2) for and non-constitutional constitutional distinction between clause 3 would hold NIX Mr. Justice officials.10a im method, other than the exclusive VI, Art. 7 is Sec. officers, whether peachment, removing elected civil all provided for in the or not the office is Constitution. flatly concurring opinions overrule Thus both would supra, Toivnship, and Mar holdings Court’s in Milford (1948). 30 Impeachment 304, 62 A.2d Case, 360 shall Pa. argued for a result appellants in this case Not even reading justification either so drastic. I can find no opinions over only would both Constitution. Not contrary, holding long-established precedent rule provisions of but construe the relevant both Justices overly re my which, Constitution in a view, fashion unwarranted. strictive and VI, language of Art. nothing or scheme

There is (address) VI, (impeachment) 7 or Art. Sec. 6 Sec. specified any way removal the modes of indicates that concurring others.10b Nor do exclusive all demonstrate, constitu- As between 10a. our cases the distinction pre-dates Constitu- the 1874 and non-constitutional officers tional McCombs, re- tion, (1867), and was 436 Commonwealth v. 56 Pa. See, g., supra. e. Township, peatedly recognized prior to Milford Weir, A. Braughler 835 Pa. ex rel. Commonwealth (1909); A. 829 133 A. A. 430 (1895); Philadelphia, Richie v. Reid, Pa. Commonwealth ex rel. Vesneski v. Directors, (1919); Georges Township Pa. School holding officer an 10b. It is to note that our cases worthwhile as the legislature be removed whose office is created May On legislature may provide before were decided VI, were Constitution XII of the 1874 this date Articles VII and VI, changes were and minor in Art. consolidated and renumbered Constitutional changes made the 1968 made. No were further

63 opinions point provisions anything the relevant exclusivity. I require which While conclusion (ex- agree VI, 6 7 language that the Sections Art. mandatory, cluding 2) I fail VI, Art. is Section clause inexorably to see how this factor to the conclusion leads provided that methods exclusive. of removal merely Section a civil VI, Art. that in event states officer misbehaves “shall liable to while in office he be ” impeachment. clearly . . . This does mean may impeach- only by that civil officer be removed VI, provides Similarly, ment. 3 of Sec. 7 clause Art. respect elected, with civil remov- officers who are al shall be “for Governor reasonable cause” again, address of as dis- two-thirds Once Senate. supra, nothing cussed there section states only pursuant that officers be removed to the Sena- procedure. torial address

If, believe, as I nothing there is in the Constitution specified which states that the modes are ex of removal clusive, argument then the concurring Justices general provisions VI, of Art. must Sec. 1 10c give way specific provisions VI, of Art. Sections inapplicable. specific provisions rule that prevail general over provisions inconsistent applies only when two sections of the same instrument are in conflict. VI, Since Art. exclusive, Sections and 7 are not how it is ever, provisions clear that these way in no conflict VI, interpreted with Art. Sec. 1 as Township, Milford supra.10d delegates If Convention. to the Convention were dissatisfied VI, prior

with this Court’s construction Art. 6 and Sections they easily could require have rewritten those sections to a dif- ferent ceptance result. suggests strongly That did so not do an ac- interpretation of our of those sections. supra. 10c. See note Mr.

10d. Justice NIX’s fallacy statement that “[t]he Milford reasoning apparent Court’s becomes more in view of its conces VI, sion that Article Section ‘is not limited to are fre what quently termed constitutional officers .’” [Concur holding today’s with my part, square

For I cannot legisla today what until has been the law: “Where adop through Philadelphia people ture [here office, it public tion of the Home creates Rule Charter] may impose such terms and limitations reference incumbent it sees tenure or removal an fit.” supra, Turnpike Commission, Pennsylvania Watson v. at 123, 125 Pa. A.2d 360.11 Court, Enough has been said to demonstrate legislative en- paying lip-service that a while to the rule upheld “clearly, palpably actment must unless plainly” Constitution, disre- the nevertheless violates provi- gards striking in down the admonition the Philadelphia’s of of sions Thus discussion charter. challenge point. might well end at constitutional more, think, But the rea- I said. For one of should be has, astray gone sons that the de- the think in Court as I history cision of its this case is to total obliviousness Philadelphia’s of purpose home rule charter and and of part recital provision the recall of A which is a it. brief purpose may to history serve of these of and factors point up wrongness approach to of Court’s ap- question, above, its discussed and also constitutional NIX, misleading. ring opinion at This of Mr. Justice ante is 253] merely recognition prior of law was not a but a “concession” office, does legislature but which stated when the creates an removal, provide specified in not for a method of the methods 134, Georges Township, supra, at constitution control. See rule, subsequent A. Watson 233. For a of this see statement Commission, 117, 123, Pennsylvania Turnpike A.2d 386 Pa. 356-57 Appeal, 11. Mr. Chief on Foltz Justice JONES’S reliance (1952) misplaced. case holding in that A.2d 871 for was that there removal evidence warrant insufficient proceedings. township supervisor by judicial, Recall cause a majority quoted way passage was in no involved and (Opinion Justice, 246) Mus- of the Chief from Mr. Justice ante public opinion may manno’s in Foltz is dictum. It be that public should not hold “a swоrd of over Damocles” the head office less possible holder in the form of for removal from office cause, argument going than constitutional an but that provision legality. question, wisdom of the removal in to its rulings court on specific the trial proach to the petition, dis challenges sufficiency the recall opinion.12 part of this cussed below IV II of the constitution- The touchstone for consideration I, ality legal Article of the Charter is Section effect Pennsylvania 2 of the Constitution: free all people, and

“All is inherent authority insti- governments on their are founded safety happiness. For peace, tuted for their an they times have at all advancement of these ends alter, reform right and indefeasible inalienable government abolish their in such manner as proper.” think the Con- people Pennsylvania amended rule city provide adoption by a home

stitution powers whereby and author- charter could exercise con- ity self-government. This I.13 local Art. Sec. right of for stitutional to home rule remained unavailed Bell, Justice, concurring 12. As was said Mr. Chief later Justice Clark, (1953); Pa. Lennox v. 93 A.2d 834 interpreted be considered and “. the Charter must and of light in the of the of the framers thereof intention enti- legislature are which in this class cases and the voters 389, great 93 A.2d weight; [citing Pa. at tled to cases].” at 850. California, Missouri, states, century By the turn of the four 13. Minnesota, Washington provided home constitutional and had twenty states have rule for then at least other cities. Since constitutional degrees varying adopted provisions granting Kneier, City in the Unit- Government home rule to cities. See C. (3rd 1957). ed States 69-92 ed. 1968, pro- rule is Pennsylvania Under home Constitution IX, municipalities By all vided for in 2. section Article Sec. and right power frame of the and State accorded referendum, enabling legis- adopt, by home Absent rule charters. provides by Assembly, now lation the Constitution General charter, framing present- procedure and home rule or a for municipality by one, ing placed may of a be before the electors municipali- people by governing body of a initiative ty. in Sec. are defined The terms “initiative” and “referendum” 14 of Article IX. Assembly adopted twenty-seven years, until the General 21, April Act, Act of City Home Rule First Class Philadelphia seq. The et P.L. P.S. § enabling act advantage of the City promptly took Council commission by appointing a charter commission. adopted prepared presented to and a charter which was be April 1951, to Philadelphia by the electors of 7,1952.14 generally January effective on Charter, IX, Section Article provision of the recall holding person “[a]ny flatly seq., 9-100 et declares subject City . shall be an . . elective office of the . .” election to removal from office at a statement Charter, The commission’s 9-100.15 Sec. in- is section to this purposes forth in the annotation set margin.16 reproduced in the structive, in full framing the City Commission Charter The work of 14. contemporane- during in several 1950-1951 is described Charter Philadelphia Bar Shingle, publication of the in The ous articles See, April, e. Association, especially No. for volume Stevens, appreciation Lewis M. g., Abraham L. Freedman’s Wolkin, 79-80; Commission, Shingle A. Secretary Paul Shingle Philadelphians,” 14 by Philadelphians “Government for Cole, Commission E. “The Charter 82-85. See C. 13 also Chute Work”, 1950); Raeburn (May, Thomas Shingle 102 and Its White, Voters”, (November, Shingle 180 “More Power for the 1950). members, described composed of 15 The Commission was group of ex- as “a Abraham in his above cited Freedman article con- for Charter tremely drafting able men.” The committee Schnader, of Penn- Attorney-General sisted of William A. former city Freedman, chairman, became sylvania, Abraham L. who Judge United States Philadelphia solicitor of and later McCracken, Circuit, T. Appeals Robert Court of the Third Wolkin, Esq. Esq. legislative draftsman. Paul A. was indicate, provisions of the Char- 15. As the annotations the recall Angeles and City of Los ter were drawn from the charters of the apparently country City of St. The recall in this Louis. Angeles. C. City of Los first introduced in 1903 in the Charter 1957). Kneier, (3rd City ed. Government in the United States Ibid, See also at 387. to recall officials 16. “1. The in the electorate vested responsible directly elected for their behavior in office to the electorate. them so that such officials vests The Charter City responsibilities great magnitude Mayor, Con- the of in the expect the to troller The electorate is entitled and Councilmen. vexatious view, against With however, protecting a of pe- filing of a recall, prohibits use of the the Charter year against any tition the first incumbent within six last six within months of of his office or the term against months after an election him. unsuccessful recall Sec. 9-105.17 long Washington

As ago Supreme as 1909 the of Court challenge provision confronted with a to the recall City contained in the Ever- home of rule charter ett, Washington. Hilzinger Gillman, Wash. (1909).18 105 P. similarity Because of the is- proper discharge responsibilities of those and in accordance with promises sought, barring made when changes office was in cir- justify power cumstances which other courses of action. The to spur electorate recall as a shоuld serve elected officials to to be faithful to this trust. It is also intended to ex- serve an peditious removing and effective means for from office an elected official ment impeach- who has failed to sustain such trust. Cf. procedure under the Act of June Article P.L. IV, experience Section and the thereunder. “2. charges required lodged formally While no to be against election, an subject elected official to it is him to a recall anticipated on the experience jurisdictions basis of in other hav- ing recall, that the will exercise its to recall electorate wisely, good purposes for reasons and in accordance spirit of the recall. “3. subject City Mayor, Elected officials recall are the to Controller, City Treasurer and Councilmen. “4. holding subject Officials an to recall re- elective office are gardless designated to hold of- manner which were fice.” 17. The Commission’s to this Section is as follows: annotation period “1. An elected official be afforded a should reasonable performance of time after election to office establish record. petition year may during Thus no of of- recall be filed the first apply year fice. This of a term limitation does the first person office immedi- to which when the new term reelected ately preceding follows the one. during “2. of a term of A election six months recall the last incumbent, procedure, he wish office is should a fruitless for office, have seek remain in six months or less would within reelection in event. harassing elected “3. The recall is not intended as a means fails, petition if a for recall officials. be no Thus election expired an filed six months since such election.” until have Washington At the time of this decision Constitution adoption cities of rule charters authorized the home class, provision. first contained no recall but at by the case presented

sues there considered to those holdings the of the forth bar I deem it worthwhile to set length. Hilzinger case at some Everett of city councilman the

The claim was made pe- the that filed petition against had been a recall whom the provision of recall the tition was invalid because section (Sec. 281) another conflict with charter inwas removal (Sec. 25) provided for of the charter which the To city causes.19 the enumerated council for through Jus- Mr. Washington speaking Supreme Court, Gose, tice answered: summary of an removal provides for a

“Section causes; whereas, specified elective officer for certain contemplates recall provision] section 281 [the conduct any the official of officer at time that his majority the responsive of a or will wish provides that this section electors . . . . Whilst petition, the the the recall shall stated reason for specific provide any reason that the charter does not controlling. necessary The whole scheme shall be or apparent the system or the charter makes it right the reserved to officers was recall of elective public interest people, to time the be exercised thought require was to it.” 105 P. at 473. urged nei- incumbent officer next that there was legislative authority

ther for the recall constitutional nor provision. enabling authoriz- The court held that the act ing adopt cities of the first class to a charter was broad enough provided “the to include The act recall. mayor city members shall have council manner, powers, times, shall be elected at the prescribed Addressing for the terms in the charter.” duties, “[I]nability properly perform or wilful failure his or turpi- involving or commission of a crime misdemeanor moral tude, consent, open city days absence from the without duties, discharge of in- failure or refusal his the habitual use excess, disability prevent- toxicating liquors any permanent ing discharge proper of his duties.” 105 P. at 473. of office length term question elected, court stated: been had councilman “ Tues- first until office to hold e was elected [¶] re- unless January, 1910, Monday in day first after provided in the manner recalled for cause or moved fixed, term, while in measure His Charter]. [in per cent subsequent to the condition express their by petition . could electorate or more upon one disapproval of official action his sus- he be policy, that local and demand of measures retire. or by confidence a vote of tained recognize general law and Both constitution de- empowered large growing should be that cities way, the themselves, own termine for and in their policy questions local many important complex and arise, only in the execu- some act and it is when general law or policy tion of that with the conflicts ques- can be contravenes the that the act constitution tioned.” Id. at 474. finally bar,

It in the that argued, as case at provi- Everett charter recall constitutional violated sion for removal malfea- “for officers misconduct sance in office.” found to be This contention also was City without people merit. Said the Court: “The framing Everett in the chartеr their intended representatives strictly should to both be held amenable existing changing public sentiment local mea- on all sures, and if any the official conduct of offi- elective cer any respond, subject failed at time so to re- he was majority if call electorate so de- in his district appellant accepted subject termined. the trust constituency, in his his the duration of dependent upon is majority term ex- the wish of the pressed polls. sought at the The removal is not of the provided character in- Constitution. Whether City ready terests of the will better be subserved a public courageous obedience to sentiment than ad- ques- officer the individual to the views of herence legal, ques- not a political public is concern tions of Washington court’s my view, tion.” at 474. In Id. persua- be should reasoning sound and decision and years later, con- sixty-five authority as this Court, sive problem. fronts the same introduced, it is where recall has been the states state petitions contain a provided shall

frequently sought. De removal ment of the reasons for which provisions, rea statutory these particular pending on the specific may relate to purely political or sons by the grounds As stated such as malfeasance office. Supreme Certain In re Recall Wisconsin Court in Of 362, 372, City Delafield, 217 N.W. 63 Wis.2d ficials of in the (1974): grounds for recall 2d “[T]he range reason to malfea jurisdictions from various example Colorado, (where recall sance.” Thus in constitutionally dissatisfaction, what recognized), “the thé reason, to set ever is sufficient electorate procedures City Boulder recall Bernzen v. motion.” Wells, (Colo.1974). 525 P.2d 416 observed Court framers, by requiring in that case that “the that a petition signatures contain of of at least all 25% cast in votes the last election . that a assured response recall election will in to the wishes not be held unrepresentative minority. However, of a small and once expressed at least have their electorate 25% dissatisfaction, power the constitution reserves recall will to in electorate. Courts of law are not expressed by majority.” tercede into the reasons “good P.2d at But where, 419. even in Wisconsin, cause” alleged must petition, in a recall the courts generally will inquire sufficiency. into its As the City court in Delafield, supra stated “Generally, : provisions statutory relating liberally to recall are inter preted in granted favor electorate. The to an electorate to remove through certain elected officials political it is for procedure nature and is in people of the rea merits and not the courts to decide the petition.” 283. See sons in at stated 217 N.W.2d Mayor Beckstrom, In re also Recall Petition Miles Montreal, 63 Wis.2d 217 N.W.2d etc., Pennsylvan

These and other from decisions outside not, course, controlling indicate ia are But here. that, recognized a state whether or been not recall has assert petition must constitution or not a and whether proposed reasons for seek removal, decision to political essentially and obtain recall of an is a officer one, judicial and not As one a matter of intervention. puts it, popular writer “The contradistinction recall [in impeachment] designed even in cases be used got where simply public the officer has line with out of opinion and has taken which citizens official action to object. political It is It is intended to its nature. help keep voters their constantly officers amenable popular control, retaining and ‘to the officeholder in aid ” a candidate’s state of mind.’ Anderson E. W. Weidner, City (Rev.Ed., American Government Ibid, 1950). (Footnote omitted).20 See also What has been said indicates that there is no constitu- tional justify need to the use of recall in terms of cause process hearing. simply a due Recall not within impeachment ambit or address sections of 20. The Philadelphia motivation for City recall in the was Charter in analogous described closely terms one involved the draft- ing of the charter: gravely “In the framers of the Charter were concerned might those chosen office to serve because decline personal expenditures being there were certain involved in City Any official. one who refused to an office sub- take ject heavy penalties. Philadelphians Today’s fines and do not fear Mayor that one chosen will to be Councilman They turn the office down. is in once he concerned prove office he will be difficult to out he be in- turn should to competent unworthy of the office he Char- holds. new Wolkin, problem through ter answers recall.” P. Philadelphians by Philadelphians”, “Government 14 the Shingle (April 1951). at 85

72 speak

Pennsylvania those But if are to Constitution. we terms, in a imagine “cause” it is difficult a better whom, republic people, democratic than will power ; n declares, as and diffi our inheres all constitution election process cult to of more “due” than an conceive a people provided by law. in the manner people recognize right Court’s of failure wisely bestowed, to recall Philadelphia, whether or not grant power to official, their elected was within permitted by the City by Assembly, General Constitution, unhappi 1922 home rule amendment to ly “to chapter 1 the Charter reduces of article IX of portion scrap paper” mere “the makes that grant Philadelphia illu much home rule an heralded 48, 55, nullity.” Case, 385 Pa. sion and Addison See Clark, (1956); Pa. 122 Lennox 372 A.2d 275 v. 834, 845 93 A.2d III Philadelphia’s pro Appellant argues recall Rizzo only Pennsylvania, vision violates not the Constitution of but also the Fourteenth Amendment to the Constitution challenge I This also find United States.21 Judge correctly As in his meritless. observed Savitt “ opinion constitutionality below, [challenges uniformly rejected have been of other the courts states, Topping Houston, see State 94 Neb. ex rel. Tenn.App. (1913); Brown, 143 N.W. Roberts v. (1957); Wyckoff, S.W.2d Stone v. N.J. Super. 26, (1968).” (Opinion Savitt, J., A.2d Record). 126a-7 response provision to a claim that a recall contain- ing requirement no process of cause violated due majority, holding provision 21. The the recall invalid under the Constitution, Pennsylvania appellant’s does not deal with federal claim. Amendment, clause of the a unanimous Fifth Fourteenth Appeals Circuit Court held: provided County provisions is is

“What the Dade political system a commissioners are to serve which people. nothing inherently at the will of the There is system, unconstitutional in such a and no court so has (5th Leatherman, 562, held.” Gordon 450 F.2d 1971). Cir. appellant might it also asserts because recall, reversing preceding majority

result vote at the mayoralty election in which the incumbent was chosen office, impairs right somehow there- vote and fore rights protection equal violates of the voters’ laws. This too is without merit. As the trial court suc- cinctly observed: minority

“Clearly, a cannot oust an incum- voters Philadelphia bent at Home a election under the Charter, 9-103(3). society Rule In Section long recognized right para- for so has to vote as mount, election, it is difficult to see how an additional upon petition scheduled electorate, of the creates an right.” (Opinion unconstitutional burden on that of Savitt, J., at Record). 126a-9 questions Mayor

Constitutional aside, the further con- tends that City recall is in conflict with the First Class Home Enabling Act, April 21, 1949, Rule Act of P.L. 665, 17, 18, 13131, Pennsyl- 13133, 53 P.S. and the §§ §§ vania Code, Election 1333, Act June P.L. P.S. seq., et give way §§ 2600 and therefore must general argument these applicability. statutes of His (1) Enabling runs as follows: the Home Rule § requires Act city that elective officials nominat- “shall be only ed provided and elected in the manner and in ac- by, with, provisions Pennsylvania cordance Elec- tion April 21, ”, Code . Act of P.L. § 13131; (2) Pennsylvania 53 P.S. Election Code § comprehensive preempts statute which the area public officers; (3)

nomination and election of recall is legislation governing process political the exercise of the through machinery; therefore, (4) the electoral recall is invalid.22 reasoning, however, flaw fatal in this

Election way Code does not the removal deal with solely office; elected officials from deals contrast, nomination election such officials. provision Philadelphia the recall Home Rule Char ter, provisions like the removal in the statutes various governance municipalities State, the relative to in this removing is a method of an and has noth elected officer ing nominating electing whatever to do with someone or to office.23

IV Having concluded the that trial court correct in holding provisions Philadelphia that recall Home contrary Rule Charter are to neither the federal nor constitutions, state Assembly, or Acts of it is now necessary to determine whether or not court was also ground on sound issuing a writ of to com- mandamus pel filing petition. of the recall

It extraordinary is well settled that mandamus is an compel writ will performance which issue to of a mandatory duty ministerial act or there exists when a Appellant 22. analogous argument respect Rizzo makes an with 21, § 665, 1949, Enabling April 18 of the Home Rule Act. Act of P.L. 18, § 53 P.S. 13133. Section 18 the Act declares that i act, “Notwithstanding grant powers contained in no city to, powers contrary enlarge- shall exercise or in or limitation of, granted powers ment Assembly acts of the General .’(b) Applicable every part of the Common- (c) Applicable wealth. to all cities of the Commonwealth.” appellant argues (1) is Election Code such statute 18; meaning (2) affecting § within legislation recall is officers; rights political respect exercise of there- with to elective fore, (3) invalid. argument § recall conflicts with the Home Rule 18 Act, Enabling supra, see note 22 fails same reasons. these Case, 48, 55, 272, (1956). See also Addison Pa. 385 122 A.2d 275

75 duty corresponding plaintiff, right legal in the clear appropriate and any other defendant, want and a Racing Association Forge Valley remedy. legal adequate 292, 295, 297 Commission, Racing 449 Pa. Horse v. State Presbytery Philadelphia (1972); 823, 824-25 A.2d Pa. Commissioners, 440 Abington Board Homes v. Hampton Unger (1970) ; v. 303, 871, A.2d 385, 387 263 A.2d Township, 401-02, 437 Pa. an JONES opinion Justice (1970). The of Mr. Chief dispute not nouncing does decision of the Court23a dispute equally well-established does it this. Nor to com issue although principle will mandamus will act, writ discretionary pel performance of a arbitrary, discretion when the exercise of such issue of the law. upon an erroneous view fraudulent, based Caplan, 411 Forge, Valley supra; v. Commonwealth See (1963) ; 563, 568-69, Garratt Pa. A.2d (1956); Philadelphia, 442, 448, A.2d 387 Pa. Casey Ross, 583-85, A.2d Hotel Co. v. 737, 742-43 how

Despite agreement principles, its these basic opinion announcing ever, the the decision of the Court respect categories signatures la- with holds that of “irregular belled the Board of Elections affidavits” improperly “illegal notarizations”, court and the lower judgment and Board, its that of the substituted for issuing thereby error mandamus fell into in the writ of compelling filing petition.24 I of the recall cannot opin- opinion only of one of 23a. The the Chief Justice is the rulings majority length ions of the at of which deals should of trial court relative to whether or not a writ mandamus Thus, compel petition. filing have of the issued part primarily to dissenting opinion necessarily of this directed opinion of the Chief Justice. correct 24. Mr. Chief Justice was JONES holds that the trial court in- ruling erroneously in in Board the law” “acted under validating signatures placed in the other contested which it categories, signatures been have and concludes that these “should Justice, [Opinion counted as valid . .” of the Chief although I quite agree respect, ante at I with him in this 243.] Judge agree my view, Savitt with this conclusion. arbitrarily ruling was correct in the Board acted signa contrary rejected in toto the and to law when it categories. tures the above two

A. report, According affidavits Board’s staff desig- affecting 57,494 signatures placed group were in a “irregular number of nated affidavits”.25 Of the total completely holding find it two with the of error as to variance categories mentioned the text. signatures following of the of a summation number categories are held valid several of claimed defects which Court, opinion announcing a result the decision opinion dissenting with which this is not concerned: 21,208 Initials 2,967 3,460 Abbreviations signatures Insufficient 11,285 Incorrect Ward 6,429 Forgeries/Alterations 45,449 (These figures are taken from the Board’s “refined See totals”. Savitt, Opinion 126a-57). J. at 57,494 35,335 signatures, placed 25. Of these were also deficiencies, categories rejected by Board in other and were Thus, 22,159 sig- only the Board for other those reasons as well. ultimately placed “irregular category natures were in the affi- however, 22,159 reject- signatures, davits”. Not all these were ed irregularity. kinds the same of asserted affidavits”, original category “irregular contained 57,494 affecting signatures comprised of three 905 affidavits sub-categories: falsities”, (1) “patent affida- which included 52,468 (2) signatures; vits “false containing attached to sheets address”, contain- which included 66 affidavits attached sheets 3,216 ing signatures; (3) registered”, which included “not 1,810signatures. containing affidavits attached to sheets sub-category placed “patent The affidavits in the falsities” were deemed to sheets to be false because were attached “gross- signatures large which were found to contain numbers alia, included, ly irregular”, signatures. irregularities inter These non-registered signers, duplicative signings, defective ad- dresses, categories signatures rejected set as other well as under Board, “abbreviations”, “initials”, up by the “insufficient such as ward”, signatures”, “forgeries and alterations”. “incorrect and (Record sub-category 1287a-88a). placed at in the The affidavits ad- the stated “false address” were to false because deemed be placed in dresses of the The affidavits affiants were incorrect. affecting least at “irregular”, those affidavits deemed by to be Board 20,304 signatures determined were irregularities” on “patently “gross of because false” appellant were sheets to which attached.26 Justice opinion Chief contends, of Mr. Board and the reaching this agrees, properly in it acted JONES that sig- irregular large (1) number conclusion because were the affidavits natures created an inference the failure false, (2) negative from arose a inference respond to to questioned affidavits the affiants rea- subpoenaes by that this I submit issued the Board. soning is untenable. af- dispute the affidavits

There no whatever their fecting signatures on 20,304 rejected were valid signa- 20,304 presented that the face. No evidence was any genuine. there Nor was tures themselves were not signatures that, although before the Board some evidence fraudulently in defective, the affiants were acted subpoenaes respect.27 to enforce the No effort was made registered” sub-category to be- the “not were be false deemed affidavits, cause, were contrary in the the affiants to recitals registered voters. 22,159 stipulated signa- parties It was between the affidavits”, ultimately placed category “irregular in the tures 20,304 (1) “patent rejected sub-category falsities.” were under — text, Since, (Record 1289a). I believe the in the as set forth 20,304 signatures, trial of these court was its validation correct suffices, signa- to the number number when added categories, to reach tures validated the trial court other election, required I find mayor votes at the last cast for 25% сor- unnecessary court was to or not trial consider whether 1,855 signatures reversing rect in to the Board as (3) rejected sub-categories (2) above. Board had under supra. 26. See note 25 mayor

27. At trial of the circulators offered to various call irregulari- primarily showing impugn their affidavits ties. The offer some affiant-circulators asserted failure of notaries, knowledge appear person before and insufficient part signers’ and status residences of circulators as to the registered affida- electors to enable the circulators make directly go forgery, attack vits. offers did not to fraud or sought genuineness signatures, the conclusion was but proved defec- drawn to be that the would be affidavits which 78

directed to the affiants, either at the or at Board level fact, In only trial. evidence the Board was before signatures peti that some of the sheets certain of the tion not requirements interpret did meet the Charter as Despite ed the Board. of direct evi total absence dence that the false, however, were in fact affidavits opinion announcing the decision of the declares Court legitimately that the Board reach this conclusion could my on the basis of the two In above stated. inferences conjecture is, mere law, view matter of insuffi as a an rejecting cient facially basis valid affidavits thereby genuine nullifying signatures. otherwise See Bower, (1968); re 41 Ill.2d Petition N.E.2d 252 Smith, N.J.Super. (1971); 421, 276 A.2d 868 Lef Cohen, App.Div. kowitz v. 29 N.Y.S.2d (1941). aff’d. 286 I Thus, N.Y. 36 N.E.2d 680 regarding would that the hold evidence before Board signatures 20,304 affecting was insuffi affidavits falsity. finding support cient its as a matter of law to ruling I that would therefore affirm the lower court’s arbitrarily not in accordance Board acted rejected signatures. the law when these

B. parties stipulated suit It was to this between persons (the lawyer for the Citizens Committee and circulators) affidavits to sheets notarized attached signatures tive indicated were therefore false and that pertained disregarded. they should be Cf. In re Nomina- Cianfrani, tion of 359 A.2d 383 Whether Pa. action, appropriate not in this new evidence was mandamus sitting of an admin- where the court was in review of the action body, See istrative generally, was a matter of discretion with the court. Jaffe, Action 176 L. Judicial Control of Administrative case, Ed., seq., (abridged 1965). esp. et In this 185-87 Student investiga- complete where the Board had made an extensive offers, tion, essence, if even and where the where time was signatures genuine proved, were not would have shown irregular, only be said but it cannot that some affidavits were refusing court the offers. abused its discretion containing 115,818 signatures.28 signatures were These placed by independent cate the Board of Elections in an gory upon in “illegal labeled Based its notarizations.” terpretation Notary Law,29 the Board ruled Public persons that these 16 interest the success had a direct ille the recall had movement and therefore that gally 115,818 appended notarized the affidavits signatures. the af result, As a the Board concluded fidavits so to count notarized were void and refused signatures upholding they pertained. this In determination, opinion announcing of the the decision adopts reasoning Court the Board’s and holds: 19(e) Notary “Section of the Law barred these Public ^[16] people from acting as notaries in this case. Since upon this section is a of the nota- limitation act, ries to their were nullities the affidavits acts and (Opinion Justice, were void.” Chief ante 243). my

In judgment, holding this erroneous. is seriously attorney 1 doubt that for the Citizens persons Committee or circulators “interested” were meaning Notary within the Law.30 See Public lawyer 28. The Board found that for the Citizens Committee 1,532 petitions involving signatures notarized 47 that the 15 and 2,827 114,286 petitions involving signatures. circulators notarized 21, 1953, August 19(e), 165(e) § § 29. Act of P.L. 57 P.S. provides This subsection as follows: “(e) notary public in No act as such in transaction party directly pecuniarily which he is a interested.” opinion announcing cites State the decision the Court 30. Malrick, (1956) ex rel. Reed v. 165 Ohio St. 137 N.E.2d 560 sup- Myrick, (1940) and Schirmer v. 111 20 Vt. A.2d 125 port holding had direct its in a that the circulators this case cited, interest In both cases affidavits notarized them. however, pe- a candidate own nomination for office notarized his danger significant titions. of fraud In such situation there is a acts personally since a his own candidate to benefit stands pecuniarily interest- directly and therefore can be to be said contrast, ed in the circulators instrument notarized. by having nothing gain personally case had question placed on the ballot. American Corp. Bleacher Inc., Gerber, Fried (C.P. Pa.D. & 1965); C.2d 729 Bucks Geiswet v. Mar den, 1 (C.P. Lycoming & C.2d 1954); Pa.D. Educa tors Serosky, Mutual Insurance Co. v. Pa.D. & C. (C.P. 1950); Gallipolis Luzerne App. v. State, 36 Ohio (1930); 173 N.E. 36 Notaries 6 at C.J.S. § showing There pecuniary was no interest, their general undertaking interest as citizens in the recall hardly a “direct” interest a “transaction” such as proscribes. Act equate question Nor do I of “inter est” Notary of the circulator under the Public Law with question of interest of the Citizens Committee purposes standing. assuming But nota even that the question ries in “directly were interested” and so acted improperly,31 I agree with the trial court that the affect signatures ed rejected should not Ex have been in toto. cept for relevant,32 one Notary section-not here Pub prescribes lic Law remedy no its should a violation of provisions occur, provide and does not that an unauthor notary ized act of Furthermore, shall void. kept

be in mind that there the was no evidence before “illegal rejected Board that the all of affidavits in the category falsely notarizations” sworn, were Cian cf. frani, supra, signatures to or that all of the attached improper. these affidavits were invalid or Nor was any there fraudulently that the in evidence affiants acted any respect. circumstances, penalize these Under to merely certain scores of thousands electors because unconscionably improperly notaries have acted Notary If, spite the Public harsh. of the silence of anyone punished Law, delinquency the here is to for mistakenly found, perpetrated the those should be who violation. public question It contended that notaries power general. argued lacked the to administer oaths in It is only wrongfully in exercised the this case. 21, 1953, August 19(a), 165(a) §

32. Act P.L. 57 P.S. i Thus, Judge Savitt, like I would hold under arbitrarily circumstances of this case the Board acted refusing and not in count accordance the law to 115,818 signatures “illegal because of notarizations.” reasons, For all therefore, I would above affirm directing place the trial court’s order to the Board question recall on the ballot.

ROBERTS, (dissenting). Justice September 30, 1976,

On majority struck the recall pursuant vote, twenty-five year to directed be held Philadelphia Charter, old Home Rule from the November reversing ballot.1 de- majority the trial court, the prived Philadelphia right citizens of their Charter to polls decide Mayor. at the whether to retain the

Today, the Justices who from the struck the recall vote attempt explain September ballot their 30 order and proceed Philadelphia completely strip people right their Charter officials.1a elected Charter By abolishing they plunge pre recall, city into the past, leaving procedure Charter the citizens without removing elected officials. Opinion announcing Justice, that the Chief striking September four adhere to their 30 order Justices petition ballot, in- first the recall recall from declares just petition, valid. Not content to invalidate that O’Brien, Justice, 1. The Chief Mr. Justice Mr. Nix and Mr. Justice reverse, Eagen Manderino while Mr. Justice vot- Justice voted dissented, Pomeroy ed to Justice writer remand. Mr. placing noted trial recall vote that the court’s order ballot should be affirmed. 1a. The four who voted to strike the recall vote from the Justices September or opinions support ballot issue three their separate opin der. The Chief and Mr. O’Brien file Justice Justice ions, joined opinion and Mr. Nix he Justice files an in which Thus, by opinion Mr. Justice there is no Manderino. to maintain that Court. The four who voted reverse still Justices held, somehow uncon the recall vote cannot be stitutional, and that recall is Sep justify ground but cannot find a to their common tember 30 order. Opin- Concurring

Opinion of the Chief Justice proceed recall, time institu- ions hold that honored government, tion in is unconstitu- American democratic re- Nothing opinions justifies tional. of the legal properly errors sult. trial court corrected arbitrary ear- of Elections which action the Board rejected petition. order, lier the recall The trial court’s election, the recall which directed Board to hold unconstitutional, holding should recall be affirmed. opinions striking the na- down recall misunderstand Pennsylvania of recall misconstrue the Consti- ture tution. strange

Most shocked the sudden and demise legal civic would the three leaders and Charter recall be Schnader, scholars who drafted Charter: William A. Freedman; L. Robert McCracken and Abraham T. distinguished twelve other members of the Charter Com- approved mission; 259,896 voters the Charter who Pennsylvanians April 1951; and the thousands containing adopted recall who have home rule charters provisions. support law, reason

Today’s fact, is without decision right policy. public Denying the voters pow- reserves elected under a Charter officials judgment people reflects distrust er to compels vigorous dissent. electorate. This

I. local in American traditional institution A. Recall is a government. determine whether a

Recall is a vote citizens prior to the public shall removed from office official procedures expiration similar his ‍​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌‌​​‌​​​​‌​​​​​‌​‌​​‌‌‌​‍term.2 Recall 1976) (4th Adrian, and Local ed. [here- 2. C. State Government Adrian]; Ryan, of Public F. Bird & F. The Recall inafter cited as Ryan]; (1930) as Bird Black’s cited & Officers [hereinafter (4th 1968); Phelps (ed.), Dictionary E. The Re- rev. ed. Law Phelps]. (1913) cited as call 1 [hereinafter in introduced Philadelphia first adopted in were those city Angeles in Los country of the in the Charter were provisions 1930, recall 1903.3 Between 1903 and municipalities in adopted in over one thousand officers By or all state for some nation.4 recall or all for some in had been authorized twelve states Pennsylvania twenty-eight 6In local in states.5 officers adopted twenty-three townships alone, have cities in- provisions, recall has been charters with recall of six counties.® cluded the recommended charters upon power the most fundamen- The recall is founded power system: principle all tal of our constitutional gov- people.7 creating representative stems from change people power reserve the ernment, representatives their will. Thomas Jefferson at As wrote: people society

“I consider who constitute authority [society]; . the source of all in that any free to transact their common concerns Ryan, totally 3. Bird & at 4. Recall was not unknown in this country before 1903. The Articles Confederation contained provision. management general “For the more convenient of the interests States, delegates appointed annually United shall be legislature such manner as the of each state shall direct with a reserved to each state to recall its them, delegates, any year, and to at time within year.” send others in their remainder of the stead Confederation, V, quoted Articles writer in id. n. 2. One art. junc- employed has effectively noted a critical that recall was delegates history Pennsylvania ture country. in the of this to the to Congress Continental were refused recalled because sign Independence replaced by the Declaration of and were delegates willing carry imperative “to out the mandate people.” Schaffner, Recall, Phelps, supra at 37. Ryan, supra 4. Bird & at 4. Adrian, supra at 139. Pennsylvania Department

6. Source: Community Affairs. I, 2; g„ § 7. E. (J. Madison). Pa.Const. art. The Federalist No. 39 agents indi- change these proper; agents they think ”8 they please . .. . vidually . whenever ”8 principle give this fundamental procedures life to

Recall officials are government. representative Elected process af- will; the recall merely agents popular per- upon pass the opportunity to the electorate fords expiration of representatives prior to formance of its designed to maintain Recall is their terms of office.9 to the elected officials responsiveness of continuous system public office people.10 for tenure It establishes a maintain ability upon the officeholder based of confidence of the electorate.11 In impeachment. should not be

Recall confused of recall, not accused impeachment, are unlike officials Dumbauld, 28, 1793, April quoted The Opinion, E. 8. Cabinet Writings Political of Thomas Jefferson 79 (eds.), Ini- 9. C. Beard & B. Shultz On the State-Wide Documents Wilcox, tiative, (1970); Referendum and Government Recall D. By In the People (1912) as Wilcox]. All the 170-71 cited [hereinafter rep- provisions, people their of recall can elect absence only has stat- resentatives at stated intervals. One commentator ed: mayors governors “According theory . . to this . Un- temporary princes jurisdictions. . . are . of [their] self- theory, people regarded incapable of der this are government, opinion on qualified express or have an as not specific upon effi- governmental policies, only pass but ciency government general way. . of their in a govern- accept theory representative Recall does not this servant, agent, not representative an ment. It holds that a a master.” Wilcox, 170-71; supra supra Ryan, at see Bird & at 4. Proponents 10. of recall assert that several benefits flow from its provides availability: upon unresponsive public it offi- a check cials; permits people it when incom- correct their mistakes petent elected; permits re- officials are the concentration sponsibility longer in individual officers and the establishment public. sacrificing accountability terms of office without Adrian, 8-11; generally supra 130; supra Ryan, See Bird at & Wilcox, supra at 169-83. Gilbertson, Significance, in The Recall—Its Provisions and Initiative, 1912) (C. King Referendum and Recall 218 ed. [herein- Gilbertson], after cited as high misdemeanors, crimes nor are removed government. The elab from office another branch procedures cumbersome, impeachment orate, sometimes people their unnecessary when themselves remove give designed to an the voters elected officials. Recall is removing expeditious officials. and effective means process provides popular vote, Like due other recall through process.12 the electoral sum, of de- an instrument established as

mocracy. It role to the electorate a direct reserves government polit- and embodies best in American years seventy ical now, It is has tradition. over been, respected institution thousands of American municipalities. Drawing upon people tradition, Philadelphia adopted part recall as of their Home Rule Charter. objectives

B. Recall Philadelphia is basic to the Home Rule Charter. quarter

A century ago, of Philadelphia a the voters overwhelmingly adopted pre- the Home Rule Charter pared and by Philadelphia submitted to them the Charter Commission. To foster a more efficient economical and city government, the citizens authorized concentrations power in Mayor, the City Councilmen,13 Controller and but expressly power reserved to themselves the to recall their elected officials. power It this reservation of the is to important recall that established the voters’ most government. city check on their is proper

Recall functioning indeed to crucial the the It Charter. per- affords voters dissatisfied with formance of an op- official elected under the Charter the portunity to polls prior call official to account at the expiration to purpose keep his term. to Recall’s is supra 4-5; Gilbertson, Ryan, See Bird & supra at 219. 9.9-100, § 13. See 351 (1974); Report Pa.Code Annot. 1 to the Vot- Philadelphia ers (February Charter Commission 6-7 1951) Report Voters], cited as to [hereinafter the electorate. responsive the will of to elected officials invoked power of the same It is the exercise of Phil- place. The voters first electing official an of other concluded, in thousands adelphia as have voters en- government nation, that municipalities across the continuously account- officials are elected hanced when guar- reasons, the Charter people. to the For these able power to recall. to elect included anteed that intended provisions not, never The and were recall do The require cause for removal. establishment distin- Annotations, prepared the Charter’s Charter specifically state that guished drafting committee,14 “ lodged charges required be . . . no subject against him to . an elected official ,”15 provisions Indeed, the recall recall election . replace ineffective were intended to the cumbersome The impeachment procedures of the 1919 Charter. rejected impeachment and recom- Charter Commission expec- adopted in the mended voters that recall prove satisfactory device tation “a more that would over- removal of an elected official.”16 voters whelmingly agreed Commission Charter performance of rely upon chose to check upon pro- city their the electoral officials. This reliance fully principles. cess conforms with basic democratic among 14. members of the committee were the most ex- three perienced respected profession. legal members of the Robert Pennsylvania Bar T. McCracken was a former President of the Philadelphia Bar As- Association and a former Chancellor of the General, Attorney A. a former sociation. William Schnader was Conference of Commissioners former President National on Uniform State Laws and was then Vice-President First L. a American Law Institute. Abraham Freedman was member Associations, Pennsylvania, Philadelphia, of the and American Bar University Temple faculty School served as a Law and later Appeals Judge for the Circuit. on United States Court of Third Wolkin, outstanding Paul who This committee was aided A. years Legislative many he has as For been served Draftsman. Director of the American Law Institute. Assistant 9.9-100, § Annot. 2 15. 351 Pa.Code Voters, supra Report at 13. to the 16. opinions striking unnecessarily recall and down

unwisely strip provision in- its vital for the Charter of suring government people citizen control of and leave Philadelphia procedure re- without effective moving power Charter officials.17 The concentration city right remains, to recall officers but the voters’ opinions striking has been recall abolished. The down grant power into to distort Charter a one-sided government accompanying without voter control over powers. exercise of those surrounding adoption

The circumstances of the granted Mayor Charter powers indicate city dependent upon other were officials the reservation power. nothing suggest recall There to that the powers voters granted would in the have authorized the upon absence of an voter their effective check use. Rather, power people to recall was reserved comprehensive a alternative other offi- limitations cial imposed. which would otherwise have been Invalidating principal objectives undermines abrogates right people Charter and to con- city government. trol their

II. THE RECALL PETITION IS SUFFICIENT signatures A. Genuine rejected cannot be on the basis imperfections in technical the attached affidavits. The trial court held that the Board of Elections acted contrary rejecting 22,159 signatures the law in be- provisions VI, removal of Article section cl. 3 Pennsylvania Constitution, require vote of two-thirds hearing, unlikely except Senate after a full are to be in the used flagrant procedures most require cases. These would the Senate purely devote considerable time to matters which be of local against concern their use state could breed resentment Schultz, purely intervention into local American affairs. See E. City this, (1949). Despite Government 280 of this three Justices Court provisions would hold exclusive. these removal interpretation Their municipality would citizens of force the rely on state intervention for officials the removal of local governments would powerless leave local to re- and their citizens move their own elected officials. “irregular

cause of what Board determined were af rejected admittedly genuine fidavits.” The Board these signatures because of “defects” in the affidavits found signed. attached to the If sheets on which the voters this action arbitrary, capricious, was on erro or based interpretation properly neous law, or of the trial court accept signatures. dered the Board to Garratt Philadelphia, Yet the A.2d Opinion of the Chief Justice states that the Board acted disenfranchising 22,159 within its discretion in vot signed correctly petition. ers who their names to the

1. largest “irregular group affidavits,” The of which the 20,304 Board relied on to signatures, invalidate suffered “patent from what the Board In the called falsities.” investigation, categories course of its up the Board set signatures. catego- Among “defective” these was ry “initials,” signatures which an included initial appeared where registration none on the card registration omitted an initial included on the card. An- category, other “forgeries,” which the Board in- called cluded instance where someone other the voter than part filled in line, example for the date or the vot- ward, er’s but genuiness signatures of these challenged. The Board then tabulated all the “defective” signatures. having Sheets more than “defective” 25% signatures rejected “patent were falsity,” and all signatures rejected.18 on those sheets were Joseph registration Migatz, A. supervisor, voter testified as to how the Board “patently determined which sheets were false”: “A. I checked all glar- the worksheets and where were there ing pulled defects I them .... Q. you What rules of you thumb did go use? How did doing about this? signatures A. Get petition amount on the and how many petition, great defects were on the if there was a percentage defects, I would— Q. any particular Was there Usually number of defects? percent up. A. from 25 procedure irrationality appar- such a becomes light five ent Chief Justice’s determination allegedly categories, nearly involving half of the signatures, defective erred as were valid. Board categories. setting up matter in If the of law these adoption discretion, categories of these anwas abuse of surely then it was an of discretion to invalidate abuse perfect signatures signatures on the same because other page Justice’s had these so-called “defects.” The Chief reasoning “patent totally on inconsistent falsities” signatures with his the “ini- determination signatures,” tials,” “abbreviations,” “incor- “insufficient ward,” categories rect “forgeries/alterations” are and signa- example, petition containing valid. For if 100 tures perfect signatures which fell included 75 25 and reject into the not category, “initials” Board could signatures the 25 the same for At defective initials. time, however, Opinion would al- Justice of Chief signatures low the as a basis Board use these valid 25 rejecting for signatures, including perfect all 75 signatures, “patent per- Why for the 75 falsities.” are signatures being rejected fect it too are because —is good? governmental possess No body can the kind Opinion discretion the Justice would vest Chief rejection signatures “pat- perfect Board. falsities,” signatures ent when are even “defective” valid, epitome arbitrary capricious is the action. and Q. you How did determine whether there were defects on the is, petition, you what did information use to make that de- termination? right sheet, was, A. I went down whatever it addresses address, address, Philadelphia, outside distinguish bad can’t signatures, categories, double categories.” the whole all the instance, containing In one signatures sheet was thrown out, though perfect. even signatures 74 of Another were

sheet, containing signatures, three invalidated because persons petitions, were registered, signed not two had other registration 25 either omitted on included an initial not card, and seven suffered from defects. similar categories those itself to limited

Even if Board reject- legally its action signatures invalid, which are arbi- page would ing signatures the same other on trary capricious: is that position ... difficulty

“The admittedly signatures persons whose obtained, properly signatures genuine were whose be- theirs and through no are disenfranchised fault con- sheets which happen to be cause their names proof irregular. In the absence tain that are names genuine, signatures were . signatures.” unjust rule out such would be App.Div. 456, 29 N.Y.S.2d Cohen, Lefkowitz 821, aff’d, N.E.2d 286 N.Y. arbi- Board acted properly court held that trial rejecting law, in trarily, with the not in accordance on the same genuine were signatures merely because petition faulty some ones. as reasoning its ac- contorted Board’s somewhat signatures on a sheet are

tion if is a number of that the affiant because invalid, false, must be affidavit sig- petition invalid included must have known that aрproach the af- problem is that natures. One with only requires that “to the best fidavit a statement regis- signers knowledge affiant’s and belief” given addresses. tered voters have their correct who single largest Pa.Code, By 9.9-101(2) far § signatures category by the was invalidated Board persons is registered who not As it unlike- were to vote. ly signer know, apart that the affiant will from what him, signer registered, tells the invalid whether the is signature support cannot inference that the affidavit an is required false. to cer- Furthermore, is not the affiant tify signatures categories that the other do fall into up by incomplete set duplicates the Board, such signatures grounds lines. The invalidation of on such bearing has no on the truth circulator’s affidavit. of a Bower, Supreme As the of Illinois In re Court held 277, (1968) 41 Ill.2d N.E.2d : preponderance proof by absence a fair “[I]n fraudulently in the evidence that circulator has acted signatures obtaining only signatures, false those objectors proved be be should unauthentic Becker, stricken. See Kaesser v. 295 Mo. 243 S.W. Wells, 350. In ex rel. Jensen State S.D. N.W. it considered is said that in order be fraudulent, an affidavit or verification attached petition only for a referendum be false but must not fraudulently also be made the evi- as established dence, (281 is, an intent to deceive. N.W. 103).”

Id. at It be noted that N.E.2d at 257. should Supreme adopted Court of South the stan- Dakota Wells, though dard State supra, ex even Jensen v. rel. person required affiant personally each know signed petition. personal who Here, knowl- no such edge sup- is required. There is insufficient evidence to port a false, conclusion an let affidavit alone fraudulent, signatures simply because some of petition properly court invalid. The trial concluded that the accordance with Board did not act in the law signa- when it twenty invalidated over thousand tures “patent because of falsities” in the affidavits.19 support 19. Chief Justice’s to effort the that the af- conclusion false, by drawing fidavits negative were a from cir- inference the culators’ explain signatures failure imperfect to the on invalid or petition, the totally unpersuasive. asserting is petitioners, claims, first appear amendment failed Board. As to the before hold, the Opinion cases on which the of Justice relies the Chief however, states, Opinion negative and as inference the itself the pro- party having arises “when a fails to control over evidence (emphasis duce it.” added). Justice determines But the Chief parties there were no the Board. before Opinion For the the circula- of Chief Justice to the characterize discrepancies appear tors’ failure is explain to aas failure to the misleading. only appear also before The circulators to were told

2. “irregular rejected group affidavits” The second registered vot- the were not Board involves affiants who gave those different from ers affiants addresses who group such registration This affects their cards.20 if even signatures, small less than number signatures, there rejected properly these Board the re- signatures require enough still would be valid however, trial court again, call vote to be Once held. discre- correctly Board its abused determined tion: provisions of the Char- is

“It noted that under re- ter, 9-101(2), Section circulator/affiant voter, registered nor need petition call need not be a Therefore, given his address be on the affidavit. constitutes rejection signatures the Board of these triumph of form over substance.” Septem- (filed Opinion J., Savitt, No. C.P. actionable, 16, 1976). a statement ber In to be order material, only false, must made must not be it also be Board; opportunity they would have the were told not to demonstrate that their affidavits were valid. Furthermore, as the trial court held: subpoenas nor sought “The Board neither enforcement it must purpose. Therefore a further extension time voluntarily halt be assumed the the Board’s decision that was circumstances, may draw inquiry. Board In these ap- of the circulators unfavorable inferences from the failure pear.” September Opinion Savitt, J., (filed at 46 C.P. No. 1976). short, negative infer giving In rise to circumstances ence, Moreover, in effect have an inference not been established. If there presumption invalidity creates a affidavits. valid, are presumption, affidavits should be that it of signed fraud, who showing voters absence of a so that the Bower, Ill.2d petition See re not disenfranchised. 277, 242 N.E.2d 252 aWhile The reason for the address” unclear. “incorrect addresses, simply gave have few affiants incorrect others registration. moved since their last inducing is Certainly purpose of there reliance. no Board’s any evidence here of intent to deceive. arbitrary action, rejecting affidavits, in these capricious. Opinion Justice insists that the trial Chief adopted

court matters its own standards for within scope of the Board’s This discretion. includes the discre- tion, according Opinion Justice, of Chief to re- ject signatures the has to Board checked determined genuine simply because the attached is false. affidavit falsity Even when to no is immaterial —or amounts collecting signatures more than turn in- out to be or, signatures valid case of the “initials” cat- egory, imperfect Opinion are valid but of the Chief —the give reject peti- Justice would the Board discretion to tion. I cannot is so believe that the Board vested with power. arbitrary a I cannot believe the distin- guished Charter, committee which drafted the Char- Commission, Charter, ter people who voted for the people right would reserve to the to of- elected ficials discretionary powers and then vest such broad nullity. Board Elections as render that a

Indeed, “irregu- condonation use of Board’s lar petition affidavits” invalidate the is inconsistent with the Opinion determination in the Jus- Chief tice categories rejected five other Board Opinion valid. The states that it is an abuse of discre- reject signature tion to merely gave a because voter ward, an though incorrect requires even the Charter signers list Surely their wards. an dis- abuse of reject genuine cretion signatures an entire sheet be- “irregularity” cause of an in the attached affidavit hav- ing to appear do with matters which need not in the affi- Conclusory “falsity ques- davit. statements that awas tion of dispositive. “falsity” fact” are not makes a What question “forgery” fact, question but There law? falsity, any finding the effect

must be a basis question finding of law. such board’s case of an election with a similar Confronted rejection petition inaccuracies because of technical of a Supreme affidavit, in of held: the the Ohio Court by the board the determination made think that “[W]e technical, against validity petition was too the the arbitrary short, an dis- unreasonable and abuse —in upon board] cretion —and that the facts [the legal duty possession in the had its was under clear approve accept petition to the . . ..” County Elec- State ex v. Board rel. Schwarz Hamilton tions, 321, 323, 888, 890 173 Ohio St. 181 N.E.2d reasoning applied here. The same should be Board, powers announcing arbitrary In the held Opinion heavily Fraser relies on Chief Justice (1st Dist. Cummings, Cal.App. P. v. 48 192 100 1920). Accordingly, it is to see how Califor- instructive following out courts, nia set mandamus standard Fraser, involving allegedly defective have treated cases petitions. affidavits In Whittemore attached voters’ Seydel, (3d Dist. Cal.App.2d 109, v. P.2d 212 168 city 1946), against of- the court a writ mandate issued rejected affi- petition ficials who because attached properly davits were court The reasoned: dated. provision regarding the “To construe the . . proceeding void affidavit so as the whole to render wagging the . would be a of the tail’s case dog. petition furnished Here the affidavits evidence ... [to determine] [sufficient] signed. requisite qualified number electors had electors Under such circumstances- the wishes of said should not be omissions of the affida- defeated vits.” 116,168

Id. at 216. P.2d at Royer, Cal.App.2d 240, Truman v. Cal.Rptr. (1st Dist.1961), the affidavits were false a mate- respect required rial law affiant be a city voter of the and several of the not. affiants were Nevertheless, proceeded city clerk signa- check tures the sheets to which the were affidavits attached satisfactory. them and found The re- affidavit quirements mandatory petitioners. were on the however, court stated, that the affidavits: “ . . are for the benefit and convenience clerk, petition reg- and if he checks the voters signers certify ister qualified, and finds the he must petition People City Belmont, as sufficient. Cal.App. defective P. accompanying petition affidavits the referendum are part not petitions of themselves, the failure such petition should not a invalidate fact was signed by the requisite qualified number of who voters complied statutory require- themselves had with all petition ments to make their Whittemore v. effective. Seydel, Cal.App.2d supra, pages 115-116, 74 168 P. at pages 2d at 217-218. Inasmuch refer- as the endum is one people, to reserved in order to protect people power, statu- exercise tory provisions dealing powers and charter such always liberally power. construed in favor Blotter Farrell, 1954, 804, 809, v. 42 270 P.2d Cal.2d 481. The duty certify petition Clerk was to bound as sufficient investigation ample when his an disclosed qualified number signers.”

Id. at Cal.Rptr. Clearly, here, where the alleged defects in the affidavits were not material —the affiants in this registered case were not required to be voters —the duty certify signa- Board was to bound tures which it genuine investigation. found to be after its

Nothing in Nomination Cianfrani, Pa. compels A.2d 383 (1976), contrary a Cian- result. falsely affidavit, swore candidate, frani, in his Party. a false Such the Democratic he a member of importance to might be of considerable statement intends petition. if a candidate signing Even voters his filing petition, it change registration his after his petition signing the voters be a matter of concern so party for their he member will have been a the can- might them that period. concern short It also a who A falsely to an affidavit. voter didate has sworn the truth petition if he knew signed would not have disen- been have about the candidate cannot be said The voter disqualified. is franchised when the candidate hand, does signs the other petition, who a recall registered moved or has care whether the circulator offi- registering. is with concern since The voter’s circulating subject individual recall, cial not with signing petition is dis- recall affidavit. voter ir- because petition if thrown out enfranchised regularities in the circulator’s affidavit. candidate importantly, it was the

More in Cianfrani himself who swore to the With false affidavit. by his

petition, trying where no candidate is to benefit penalize innocent misconduct, there is own no reason to Smith, signed petition. voters who the recall Petition of Similarly, N.J.Super. 421, 276 A.2d 868 Cohen, App.Div. 452, 29 N.Y.S.2d Lefkowitz aff’d, (1941), 286 N.Y. held 36 N.E.2d applicable strict himself has standard when the candidate participated apply in fraud does not the candidate when petition irregularities. involved in the

Finally, supra, in Cianfrani, Court Nomination of Township Liquor based its decision on Catherine Referen- Case, dum (1955). 114 A.2d 145 a com- panion case, decided the same day, this Court that an held affidavit was not invalid because the her circulator used preceded by husband’s name the title “Mrs.” instead of signing appeared registration her name as it on the roles. In an unanimous decision this Court reasoned: objections petitions to the

“[T]he related to no more than innocent irregularities, and immaterial free of fraud, ignored permitted therefore to be and not prevent expression a full and free of the electorate’s respect will questions submitted Township Liquor Blair Case, 382 Pa. Referendum 299, 114 here, sup- A.2d Likewise posed petition defects of the affidavits to the recall were innocent people Philadelphia and immaterial. deprived should not be right their on the vote issue due to such signing petition, By technicalities. over one fifty hundred and thousand have ex- voters pressed their desire that a recall vote be It is a held. tragedy Opinion that the Justice al- Chief would low the Board to disenfranchise these voters because of immaterial technicalities. There can be no doubt that the trial correctly court ruled that the efforts to Board’s prevent irregularities the recall because of claimed the affidavits was an abuse of the Board’s discretion and contrary to the law.21 Opinion

21. The suggests the Chief Justice also the trial accepted court should proof have Mayor offers of made that the irregular. affidavits were theAs authorities cited hold, Chief general Justice rule is that when a ac- mandamus tion follows a hearing, formal administrative review is limited follow, however, administrative record. It does not a hearing court required accept mandamus action is additional evidence in hearing situations where no formal administrative has been conducted. When informal administrative actions re- viewed, the trial reject court has discretion to admit or additional evidence. “Typically . . mandamus is used where the adminis- trator has required acted or entitled to act without formal hearing. . . may There have been an elaborate inves- tigation, examinations, medical objects, op- examination of portunities objections. to meet may administrative There might what ‘quasi’ record, one call a but none of these cases is there a record the strict sense. The court in the exercise of its discretion permit simply the introduc- 98 legal. are The Notarizations

B. 115,818 states that Opinion Justice The of the Chief petition because signatures are invalid to the recall supported re- persons who on sheets notarized were attorney the Recall for include the call. These notaries Committee, in- employees Committee, of the salaried issue; may another on one or tion of additional evidence Whether to .... refuse to receive additional evidence complete- depend fairness will on the feke new evidence investigation.” hearing or ness of administrative (1965). Jaffe, 186-87 Administrative Action L. Control of Judicial “record” before the review to the The court below limited its Board and by Mayor. accept offered declined to the evidence determining if trial court’s appeal, is limited to On our role an abuse of discretion. decision was g., Labor petitions, Socialist involving see e. Cases nomination pro- Case, 78, (1938), applicable to this not Pa. 1 A.2d 831 332 provides specifically Pennsylvania ceeding. Code Election peti- nomination actions on for novo review of the Board’s de amended, 976, IX, 3, 1937, § as Act of June P.L. art. tions. re- requirement made for (Supp.1976). § No such 25 P.S. 2936 peti- appropriate. A nomination petitions, call nor would one requires only signatures, Act municipal a 100 tion for office amended, 3, 1937, IX, P.S. 912(d), 25 § as June P.L. art. required 145,000 for signatures 2872(a) (1953), were over whereas large petition. a number of such this recall of De novo review period, signatures up petition an extended a recall could tie set in the Charter. timetable out would conflict with the days only to re- gives the Board Section 9-101 of the Charter resign and, ten not within petition if incumbent does view the days days. afterwards, requires 9-103 a vote within Section Thus, the Chief Jus- §§ 351 Pa.Code 9.9-101-9.9-103 of review Opinion, tice the usual standard states elsewhere his a expected to make applies. not Since the court is mandamus review, required evi- additional de novo dence a it is not to admit party might offer. had proof the Board into which offers related matters investigated. Charter already Especially given efforts in the City procedures will expedite of the “so that the affairs resolving the longer postponement time for suffer from issue,” 9.9-103, did (1974), § trial court 351 Pa.Code Annot. consuming refusing time to admit this not abuse its discretion petition challenge reviewing a recall As a evidence. court Angeles the Los Home Rule Charter observed: under having re- desirability of “The courts are ever mindful de- presented people without petitions . call expenditure lay of time.” or excessive (2d Wilkerson, Cal.App.2d P.2d Reites v. (citation omitted). 1950) Dist. petitions. in fact nota- All were who circulated dividuals According to ries, his own sheets. none notarized and Justice, “di- Opinion persons were these Chief so as rectly pecuniarily in the transaction or interested” Notary in to render their notarizations violation 19(e), 1323, August 21, Act P.L. Public Law. § ignores the 165(e) (1964). This conclusion 57 P.S. § “general employment or principle well established that gives employment agent in attorney as or a matter [an] notary act a no such interest to invalidate an official as p. 6 at done him . 66 . .” C.J.S. Notaries § 618; Corp. Blau, 558 Commercial Credit v. 393 S.W.2d (Mo. prior 1965). in It also case law conflicts Pennsylvania.22 argument presented

An almost identical Gallipolis State, App. 258, court N.E. v. 36 Ohio 173 (1930), seeking attorney parties 36 refer- where an a petition. endum had found no notarized the court impropriety attorney’s action, upheld and grant compelling City of a writ of to hold mandamus the referendum.23 Representation party disqualify attorney of a does not an from client, notarizing except documents for his when the documents attorney-of-record. are filed in a American lawsuit where he is Gerbert, Inc., Corp. (C. Bleacher v. Fried & 35 & 729 Pa.D. C.2d 1965). disqualified. employee attorney P.Bucks Nor is an of an Serosky, (C.P.Luzerne Educators Mutual Ins. 73 337 Co. v. D. & C. 1950). partner attorney-of-record, Even a an stands to who Marden, earned, any disqualified. share in fees is v. Geisweit Pyle, 1 D. (C.P.Lycoming 1954). & C.2d 18 v. Commonwealth (1852) Pyle Pa. 519 was way is in no inconsistent with these cases. disqualified particular doc not because of his interest in notarized, prohibit ument specifically he but because of a statute ing public. notary bank holding stockholders from the office of Opinion

23. The cases cited ex in the Chief State Justice Malrick, (1956); rel. Reed v. 165 Ohio St. 137 N.E.2d 560 Myrick, Schirmer v. (1941), involve 111 Vt. 20 A.2d both A petitions candidates who notarized for nomination. their own candidate, circulator, opposed petition direct has a to a mere Also, pecuniary interest nomination and election. his procedures relating petition courts enforce more laws much Opinion has stretched That the of the Chief Justice beyond their intend- Notary words of the far Public Law hold application suggestion ed is revealed its “directly pecuniarily petition were not circulators the determination interested” would be inconsistent with The Nota- standing bring this action. have ry standing different serve Public Law the law of necessary con- purposes, of the interest nature different, dis- standing would fer that which from far necessary to confer qualify notary public. The interest standing relatively minor, g., States see e. United SCRAP, L.Ed.2d U.S. S.Ct. disquali- (1973), would interest and to hold that such an fy many no notary public suits, because foreclose would the person validly notarize could found who could be taxpayer pleadings. Indeed, that a have held some states bring in mandamus standing elector has to an action compel to a recall vote: petition alleges plaintiff elector

“The .is an that the it is taxpayer city Richmond, as such and of and subject-mat- directly in the clear interested that he ter of this action.” Cal.App. 705, 710, 121 P. City Richmond,

Conn v. accord, added); 714, (1st 1912) (emphasis 716-17 Dist. P. Cal.Rptr. Miller Greiner, 60 Cal.2d necessary (1964). to confer stand- 2d 129 If the interest ing enough notary, or tax- disqualify no voter a payer petition. would a recall be able notarize Notary provision

It should be clear the notary’s the Public Law is where aimed at situations danger fraud —hence self-interest creates serious emphasis “pecuniary is not the case interest.” Such discovered, here, where, investigation as the Board’s own strictly suggestion when is a that a be bene there candidate wrongdoing. fiting by Compare his own Cian Nomination of Smith, frani, (1976), 359 A.2d 383 with Petition of N.J.Super. 276 A.2d 868 Opinion the Chief Justice petition sheets which valid genuine contain illegally notarized were states signatures. interpret has Opinion Justice if the of the Chief

Even provides no rea correctly, it Notary ed the Public Law interpretation of petition. Its son to invalidate strange novel Notary unquestionably a Public Law is knew, or one, the circulators it cannot said that be such a known, Opinion reach could would have v. Board adopt I the rule Stern conclusion. would (1968), Elections, 175, 237 N.E.2d 313 14 Ohio St.2d that, given pub Supreme where the held Ohio Court petition should policy elections, free lic in favor of comply failure invalidated technical signed 156,214 notary public citizens who statute. simply petition not be disenfranchised should petition was im pronouncement because of a “It properly observed: the court below As notarized. remedy for an would be unconscionable hold that petition. improper is the invalidation notarization subject to perpetrator may be wrong It is the who signed surely penalty, not the concerned elector who petition.” Savitt, J., Opinion at 51-52 No. C.P. (filed September 16, 1976). technicality the affida-

The extreme with which both been treated in this case vits and have notarizations only supposition justified that can be on the of a basis petitions suspect. belief recall a view evinces a Such Philadelphia to that the citizens of cannot be vote trusted yes- responsibly expected, by their be cannot —that distinguish vote, proper no to recall movements from It those situations where an official should be retained. rejects expectations of the of the drafters Charter power wisely “the will exercise its electorate ” Pa.Code, . . Annot. 2 . 351 9.9-100 § ignores interpretation given rule It other home “legislation affording right people charters that given public is to be the same recall officials to election statutes liberal construction as that extended 503, Cal.App.2d 500, generally.” Wilkerson, v. Reites are, (2d 1950). must 222 P.2d Dist. Courts be, protective extremely right vote; the treat- petition Opinion ment of the of the Chief departure Justice is a drastic from this standard.

III. RECALL IS CONSTITUTIONAL Opinions striking The should not have A. down recall reached the issue. properly rejected

If the Board of Elections the recall petition, this case be on nonconstitutional should decided grounds. By proceeding unnecessarily further and ad dressing striking opinions issue, constitutional depart principles judicial down recall from decision basic ing.23a mak It de is well that courts do not settled cide issues where nonconstitutional constitutional ground dispositive. Strickland, is Wood v. 420 U.S. 992, 997, (1975); Hagans 95 S.Ct. 43 L.Ed.2d 214 Levine, 528, 547, 415 U.S. 39 L.Ed. 94 S.Ct. (1974); 2d T.V.A., 288, 347, Ashwander v. 297 U.S. 466, 483, (Brandéis, J., S.Ct. (1936) con L.Ed. curring). This consistently Court has to this adhered 23a. Concurring Opinion accepts of Mr. Justice Nix con- Opinion clusion of the petition of the Chief Justice that the recall is invalid illegally Having because it was notarized. reached this conclusion, it inappropriate for either the Chief Justice proceed Mr. Justice Nix to to address the constitu- issue tionality of recall. Concurring Opinion of Mr. Justice O’Brien does not state petition whether the recall sufficient. It Mr. Jus- sufficient, tice O’Brien has petition decided in which case he must address the constitutional his Con- issue. Because Opinion curring expresses petition, validity no view

however, is not clear whether Justice O’Brien has ad- Mr. dressed only rejecting constitutional issues after the other objections placing the recall vote on the ballot.

103 principle.24 Unemploy recently, Most in Lattzanzio v. Compensation Review, 392, ment Board Pa. 336 461 (1975), A.2d 595 this stated: Court jurisdiction basic law of this that statutes “[T]he [is] presumed constitutional, we will not reach and constitutional issues where the matter can be decided 25 grounds.” on nonconstitutional 395,336 Id. (citations omitted). A.2d at 597 jurisprudential There is no reach the constitu- need to tionality provisions. Opinion recall Chief Opinions Justice Concurring and dash “the hopes expectations” Pennsylvanians and of thousands of by unnecessarily erroneously abolishing and recall with- affording out opportunity them an be heard. opinions attempt justify abrupt departure from precedent by noting many municipalities, boroughs townships Pennsylvania presently have, or are considering provisions governing recall in their 24. Triangle Publications, Inc., 319, Binder v. A.2d 442 Pa. 275 53 (1971); 212, Haugh, Commonwealth v. A.2d 657 439 Pa. 266 (1970); 539, Concessions, Drug Shuman v. Bernie’s 409 Pa. (1963); Houghton, A.2d 660 387 Pa. Township Robinson School District v. 236, (1956); & A.2d 58 Altieri v. Allentown Officers Board, (1951). Retirement 368 Pa. 81 A.2d 884 Here, provisions where the have been submitted Philadelphia presump- approval, voters of and received their constitutionality strengthened. tion in favor of the of recall Pennsylvania Nursing Agency, Tosto Pa. Home Loan 331 A.2d “Courts not declare a statute unconstitutional ‘unless Daly clearly, palpably, plainly Constitution.’ violates the 263, 271, Hemphill, (1963). This v. presumption A.2d constitutionality of a in favor of the statute where, here, strengthened program submitted has been approval. We would to the voters has received their overstepping down our were we to strike constitutional bounds strong presumption of an act bolstered constitution- such ality designed provision to elim- on the basis of a constitutional enlight- goals public inate an of this evil far removed from the legislation.”

ened striking should recall The down charters.25a Justices principle heed the that:

“ system not rov- courts are nder our constitutional [U] commissions, pass on the va- ing assigned judgment lidity of the Nation’s laws.” 601, 602, 93 S.Ct.

Broadrick Oklahoma, 413 U.S. 37 L.Ed.2d 830 Philadelphia’s provisions B. are constitutional. recall constitutionality in the recall of The discussion of the Concurring Opin- Opinion and the of the Chief Justice does inappropriate Recall ions is erroneous. both and Pennsylvania Con- VI, of the not violate Article section 7 provides: stitution. This section the condi- their offices on

“All officers hold civil shall office, they while tion that themselves well behave of misbehavior and on conviction shall be removed Appointed offi- any civil office or of infamous crime. record, judges cers, other the courts than they power by pleasure which at the of the removed appointed. elected shall been All civil officers have people, except Governor, the Lieutenant Gover- nor, Assembly judges and of the members General by the record, the courts removed Governor shall be hearing, cause, for full reasonable after due notice and 25b on the address two-thirds of Senate.” opinions striking 25a. their stated ra- The recall undermine down reaching They consti- tionale for to address the the issue. claim tutionality up uncertainty in the in order to clear recall area, they only but add the confusion have created. opinions why striking agree recall down recall cannot unconstitutional, needlessly Opinions cast Concurring and the two procedures for remov- constitutionality cloud on the of all local ing elected officials. Pennsylvania re- 25b. The several different Constitution contains VI, public pro- moval mechanisms for Article section officials. subject impeachment vides that all for misbe- civil officers are havior in office: im- “The peachment be liable to Governor all other civil officers shall office, judgment such misbehavior in but office cases shall not extend than to removal from further provisions the recall order to invalidate Charter, Opinion Arti rewrites Chief Justice of this VI, cle misconstrues decisions section Concurring Opin interpreted Court which it. have only Mr. Nix ions of Mr. Justice O’Brien and Justice Constitution, the deci but would overrule rewrite distinguished between sions of this have Court which ap in the officers constitutional and non-constitutional provisions. plication More removal constitutional ignore opinions the well over, striking recall down jurisdictions developed body of from other sustain law presented ing against arguments the constitutional Pennsylvania nothing in the Constitu- here.26 There is disqualification any profit this to hold office of trust or under accused, person or ac- Commonwealth. The whether convicted indictment, quitted, judg- be trial shall nevertheless liable to punishment according ment and to law.” VI, text, 7, quoted provides in the for three dis- Article section First, procedures. tinct civil officers shall be re- removal all by moved from of either misbehavior office if convicted court Second, appointed civil officers office infamous crime. may power. pleasure appointing Final- of the removed at the may ly, by for rea- elected be removed the Governor civil officers cause, hearing, the sonable after notice and full on address due Opinion two-thirds Justice inex- The of the Chief the Senate. gives comprehensive tricably procedure it focuses on last and independent significance place beyond in the constitution- its untenability position, oth- Recognizing al scheme. of this follows voting er Justices from Constitution. clusive, their decision to reverse claim in the mechanisms the existence of the various removal procedures ex- are But their conclusion that these power- governments so that local and their citizens officials, unpersuasive. equally less remove their own elected scheme, ignore especially Both views the overall constitutional government. relationship See Penn- between state local Constitution, Moreover, sylvania it- IX. the Constitution article recognizes noncon- self the distinction between constitutional Constitution, VI, Pennsylvania section stitutional article officers. 705, (1st Council, Cal.App. P. 714 City 26. See 121 it violated Conn v. 17 1911) (recall upheld against state Dist. contention that office, provisions removal and regarding constitutional tenure 265, Council, Cal.App. 90 P. impeachment); 5 Good v. Common Johnson, 182 (2nd 1907) (tenure office); Campbell 44 v. Dist. attack); (Fla.1966) (broad DuBose So.2d 244 based constitutional Kelly, (1938) (due process); Eckerson v. 132 Fla. 181 So. prohibits tion or the decisions of this Court which people Philadelphia holding from their elected offi- through cials The accountable the recall mechanism. “ opinions striking down recall ‘wrest have [ed] organic purpose words of the law to does ” Philadelphia, disclose.’ Richie v. Pa. Donohugh Roberts, quoting A. 432 (1909), Wkly.N.C. properly

The trial court determined the recall provisions Pennsylvania were not in conflict Constitution. That decision should be affirmed. Opinion

1. The Justice rewrites the Con- Chief stitution. Opinion VI, Article Chief Justice rewrites justify VI,

section sec- order to his result. Article provides peo- tion that “All civil officials elected ple for rea- . shall be removed Governor cause, hearing, sonable after due notice and full Opinion address of two-thirds Senate.” “only” Chief Justice inserts word before phrase “for civil reasonable cause” and holds that elected interpre- only officials This be removed cause. VI, supported by tation of Article section 7 is not language internally of the section and is inconsistent. Opinion although The states that elected officials civil Moines, 452, City (1908) (tenure v. Des 137 Iowa 115 N.W. 177 of office, impeachment); Supervisоrs, of v. So. Pinder Board 146 Roberts, 152, (La.App.1933) (removal); 715 Graham 200 Mass. v. (1908) (tenure office); Topping 85 N.E. 1009 State ex v. rel. 445, Houston, (1913) (removal, pro 94 Neb. N.W. 796 due 143 Diehl, 525, cess); (1933) (broad Leers v. 11 167 216 N.J.Misc. A. Edmonds, Hackley attack); based constitutional State ex rel. v. 203, (1948) (removal); 150 Ar Ohio St. v. 80 N.E.2d 769 Dunham dery, 619, (1914) (removal); 43 Okl. P. State ex rel. Tim 143 331 Howse, othy (1916) (removal); v. 134 Tenn. 183 S.W. 510 Brown, (1957) (ten Tenn.App. Roberts v. 43 S.W.2d 197 310 office, process); Belsterling, ure of due Tex. Bonner v. 104 ‍​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌‌​​‌​​​​‌​​​​​‌​‌​​‌‌‌​‍office, process); (1911) (removal, 138 S.W. Hil 571 tenure of due zinger Gillman, (1909) (tenure 56 of of Wash. 105 P. 471 fice, Schwarz, removal); but 72 So. see Williams v. 197 Ala. 330 may pro- Legislature cause, only for can be removed Opinion If the methods of removal. vide for different for . interprets phrase “shall be removed only can that elected officials reasonable cause” mean interpret “shall also cause, be removed for then it must ... address be removed the Governor that officials can to mean two-thirds Senate” only by of two- on the address removed the Governor thirds Senate. VI, only interpretation sec- of Article reasonable public

tion is that elected when the Governor removes only on the officials he do so for reasonable cause requirement of address two-thirds of the Senate. removal only “reasonable cause” to the Governor’s refers powers; VI, officials Article section reads that elected “by shall be removed cause the Governor for reasonable right re- . .” It no relation voters’ bears call. interpretation

Implicit in of Article Justice’s Chief holding VI, elected section condition sole well while office is that themselves officers “behave injects Opinion office.” Just of the Chief Justice cause”, modify “only” “for so the word reasonable the word “condition.” has inserted word “sole” before provide the ex VI, Nowhere does Article section 7 holding good office is be clusive condition for elected Opinion Justice, havior. The of the Chief under again guise interpretation, rewrites Ar constitutional VI, comport his ticle section own notions Opinion representative doing, government. so procedures.26a also confuses two distinct removal Since nothing provides VI, there is in Article section which phrase 26a. The “on the behave themselves condition VI, well while in office” modifies that section of Article section provides for in office removal on conviction of misbehavior separate proce- infamous crime. does refer to the It provides by the for reasonable dure which for removal Governor cause. solely on the condition that elected officials hold office preclude “good behavior,” provision this does not public people Philadelphia electing their officials from subject provisions. to the Charter recall

Article IX authorizes the General Constitution Assembly provide governments.27 This arti- for local recog- cle indicates that framers Constitution municipal importance af- nized the local control officials, power municipal have fairs. The to recall who recall, subject providing been elected for charters fully for local consonant with the constitutional scheme self-government. VI, Article section is inter- When preted light IX, of Article it is that the constitu- clear provisions tional framers did for not intend its removal right municipalities state officers to limit the to enact recall for local officials. jurisdictions

Other provisions similar home rule interpreted in their constitutions have their constitution- provisions al municipality’s removal so limit right to providing enact a Charter offi- local cials.

In Bonner Belsterling, (Tex.Civ. 137 S.W. 1154 App.1911), aff’d, (1911), 104 Tex. 138 S.W. 571 elected members of the challenged Board of Education the constitutionality of recall as violative state provisions constitutional removal required which cause by jury. and trial The court held that the constitutional provisions removal inapplicable were municipal offi As provided cers. the constitution self-govern for local ment the court reasoned that the constitutional removal IX, provides: Article section 2 “Municipalities right shall have the to frame and adopt home rule charters. ... municipality A has a home rule charter any power perform exercise any Constitution, by function not denied its home rule charter or Assembly General time.” municipali- provisions for not limit the state officers did ty’s right provisions: to enact recall by the

“The office . . is an office char- . created municipal ter . . is a officer . and such member charter, by . The . office is created the provision, also contains the recall and it under appellant this charter . was elected . . is not the Consti- in conflict with [Recall] recognizes that tution. The Constitution permitted themselves to determine for cities should be important questions of many way and in the their own policy local arise.” S.W. at Ardery, Dunham 143 P. Okl. rejected

(1914), leading recall, the case court argument provisions were constitutional removal municipal exclusive as to officials. equivalent holding

“To to our so hold would opposed diametrically the charter to Constitution was government re- principle form as the known call. If it were not intended under the constitution give government, adopting cities form Charter put practice power power right to re- some ex- officers, been call their then there would have such, press we are inhibition; the absence impli- power by holding that such warranted in cation inhibited.” misapplies Opinion

2. The Justice Chief decisions Court. support of this lend no

Prior decisions Court VI, Article section 7. Chief Justice’s construction provi- interpreting decisions of this Court removal distinguished Constitution, consistently sions have officers, by those between “constitutional” created officers, those Constitution, and “nonconstitutional” provided for in the Constitution.28 whose selection is not for the form the sole basis Sections 6 Article VI and 7 Legisla- of constitutional officers.29 Since removal offi- nor constitutional ture can neither create abolish ces, it of these con- has no to alter the conditions consti- enacting stitutional offices alternatives provisions. Case, 225 Pa. Bowman’s removal tutional 364, 367-68, is not This rationale A. applicable public positions created officials whose Pennsyl- Legislature. VI, Article section 1 of provides: vania Constitution provided officers, for in

“All selection is not whose may Constitution, appointed this or shall be elected by be law.” directed Legislature may ap-

Because the the election or “direct” pointment provided for whose selection is not officers Constitution, may re- in the it “direct” method of also provided for other than those in Constitution.30 moval Commission, 117, Turnpike Pennsylvania 28. Watson v. 386 Pa. 304, Case, (1956); Impeachment 62 125 360 Pa. A.2d 354 Marshall Davis, 299 276, (1948); 149 A.2d 30 A. 176 Commonwealth ex rel. v. Pa. Removal, (1930); Township Supervisors’ Pa. 291 Milford 46, (1927). 139 A. 623 ex rel. Vesneski See also Commonwealth Reid, 328, (1919); Philadelphia, v. Pa. 108 A. 829 Richie v. 511, (1909). 225 Pa. 74 A. 430 Case, 32; Impeachment 29. at A.2d at Marshall 360 Pa. Case, (1909). Bowman’s 225 Pa. 74 A. 203 Current Problems Law, in Pennsylvania 99 U.Pa.L.Rev. 829-30 Removal, Township Supervisors’ supra, this Court Milford rejected argument provides the that the Constitution exclu- procedure sive for the removal of officers. nonconstitutional provisions applica- Court held “not that the Constitutional were pro- Legislature ble” to had nonconstitutional officers where the vided an ex rel. alternate method of removal. In Commonwealth Davis, 177-78, rejected v. A. this Pa. at Court “sweeping language . officers contention that . . ‘all people by by the the Gov- elected . . shall removed ernor,’ people’ . . means that ‘officers elected way.” any Subsequently, shall not be removed in Watson other Commission, supra, Pennsylvania Turnpike Court stated: beyond respectable “It is therefore established in this State office, that, public legislature controversy where the creates impose reference such terms and limitations with

Ill only perti- provisions removal are constitutional Legislature nent for nonconstitutional where officers provided procedures.31 has not removal for alternative Legislature provided methods Where has alternative simply provisions not removal, the constitutional applicable. Mayor Philadelphia enumer-

The office of the is not in the a constitu- ated Constitution and is therefore not Mayor by the tional office. The office is created subject provisions. Charter and is to the Charter’s recall IX, Pennsylvania Constitution Article section 2 un- municipalities rule charters home authorizes enact municipality may exercise function der which power or General Assem- denied Constitution pursuant bly. Act,32 The Home Rule enacted Charter IX, provides: Article section city advantage taking

“The of this act legislation complete powers shall have and adminis- including municipal functions, its tration relation to city authority prescribe the elective added.) (Emphasis . .” officers Court, Case, A.2d 272 This Addison’s Philadelphia Charter (1956), the Home Rule held that legislative enactment. force of a the and status had Therefore, provide a provisions the Charter the recall of legislative removal to the constitutional valid alternative an it sees fit. There of incumbent as tenure removal while, on nothing prohibiting such action the Constitution VI, XII, hand, section 1 Article the other Article Section [now expressly it.” admits 1] 123, added). (emphasis 356 Pa. at 125 at A.2d 52, Milford, 291 139 A. at 625. 31. Pa. Reid, supra, the Court rel. Vesneski v. In Commonwealth ex procedures, a legislatively removal held that absent authorized provisions Constitu- municipality rely the removal in the must for the removal of non-constitutional officers. tion seq., §§ §§ 13101 et April P.L. 53 P.S. Act of et 32. seq. (1949). §Id. 13131. provisions. Mayor Since the office is Charter of- fice, provi- office, and not a constitutional the Charter ap- not provisions sions and the constitutional removal ply- consistently recognized power

This Court has the Legislature provisions to enact for the removal of Today Opinion nonconstitutional elected officials. adopts position long Justice Chief discredited VI, Legislature’s power that Article section limits prescribe the removal of nonconstitutional officers.34 Opinion misapplies Court, the decisions of this ignores underlying for be- rationale the distinction tween constitutional and nonconstitutional officеrs. upon

The Chief Justice’s reliance of this decisions upheld legislative procedures Court which have removal misplaced. for nonconstitutional officers each cases, procedure specifically provided these the removal Therefore, for removal this has never cause. Court question Legislature may faced the whether the enact a procedure require removal does cause.35 Noth- ing suggests upheld in these cases that this these Court legislative procedures they required removal because Opinion cause. The the Chief Justice infers con- time, 34. At one there some confusion as to whether Article VI, Legislature section 7 limited enact alterna- tives for the removal of nonconstitutional A officials. lower opinion, Court, per court affirmed curiam this included in dic- provisions Pennsylvania tum a statement removal exclusive, making Constitution were without be- a distinction tween constitutional and nonconstitutional officers. Common- Hoyt, (1916). wealth ex rel. Lowell v. 98 A. How- ever, Milford, supra, Court clarified matter and reaf- firmed distinction between those Con- offices created Legislature stitution and those which the abolish. can create and then, every statutory Since this Court has “made effort to sustain plans application removal in their to other than ‘constitutional’ Law, Pennsylvania officers.” Current Problems U.Pa.L.Rev. Opinion 35. The appear of the Chief would Justice have that the Mayor issue before is Court well settled. Even the concedes required the issue whether constitutionally cause is for the removal of nonconstitutional elected officials is novel. necessity stitutional for cause from the fact that mere Legislature has heretofore which chosen alternatives required The error in the reason- cause. Chief Justice’s ing assumption legislative lies in his that because provided cause, schemes have for for removal cause constitutionally mandated.

Thus, support these cases do not the conclusion Opinion of in the Chief Justice that cause is essential any means of by removal established statute or home fact, rule charter nonconstitutional offices. bearing constitutionality

decisions have on the no Philadelphia’s provisions. Opinion primarily Chief Justice relies Appeal,

Foltz (1952), 88 A.2d to assert process legisla- any that cause and due in are essential tively created civil means removal for officials. elected This only reliance on Foltz Foltz unfounded. ad- petitioners dressed the issue whether the had established neglect perform or required “refusal to duties” as statutory procedure removal at issue. The com- plaint petition brought pursuant Foltz were Township (1947 section 503 of the Law P. Second Class amended, 19093-503) pro- L. 53 P.S. § vides that: neglects per- township officer or

“[I]f refuses form, sessions, upon duties, quarter his the court of complaint writing regis- percentum of the five township, may upon tered electors issue rule why such officer to show cause office should not be his appointed declared vacant another in his stead. Upon hearing, proof facts al- leged complaint true, may the court declare appoint stead, office vacant and another in his during hold office the term the deposed, officer or to make just such other order as the court seem proper.” insuffi- there was in determined Foltz

The Court supervisors to remove the Court cient evidence for ,case not did The 503. required section for the reasons officials recall elected not could the electorate hold that without cause. Foltz, from quotation extensive

The Chief Justice’s official, an elected judicial removal of which involved the by recall Removal simply to recall. not relevant is by another vastly from removal different election elected offi- of an government. Removal branch of the elec- government nullifies branch cial another of- hold particular shall individual choice that a torate’s gov- danger one branch presents It fice. also power of its may by abusing dominant ernment become undermining system of checks and bal- removal, our thus requiring important for may reasons ances. These gov- branch another that cause be before established right of ernment removes an elected official. Where are people these considerations reserved removal Fifth Appeals Cir- present. As the Court 562, 567 Leatherman, 450 F.2d cuit noted in v. Gordon (5th 1971): Cir. the ex-

“[Tjhere difference between is a fundamental pulsion public the state of a official removal activity by that same the voters.” every official, for the recall of an reasons people: process, properly electoral left to good reason, rea- for a a bad elector vote “[A]n ap- principle son, or for That no reason whatsoever. plies other elections.” to recall elections as does all Leatherman, supra, 450 F.2d at 567.36 Gordon makes clear context of recall the Gordon electoral process process. is the essence due Opinion Justice 3. The confuses Chief impeachment. alleged constitu- Chief Justice’s discussion misapprehension of tional infirmities of recall evinces a purpose he confuses nature and of recall. Because impeachment, ignores cases recall with the Chief Justice jurisdictions from valid- other considered the have ity principle Recall is on the that elected recall. based they ac- officials the be take office on condition that throughout to of of- countable the their term electorate Opinion recall fice. The of the Chief Justice confuses impeachment holding and can by that elected officials only be removed for cause. Opinion implicitly

The the of the Chief Justice views concept entire Pennsylvan- recall as antithetical ia spirit This the the offends letter and Constitution. I, proclaims Constitution. section Article “[A] power people” peo- is inherent in the and reserves ple right “alter, govern- reform or their abolish ment.” The recall of elected ba- officials this effectuates sic declaration of the Constitution.

The very theoretical basis of is found in the sec- tion of Pennsylvania Opinion Constitution which the of the VI, Chief Justice uses strike it down. Article 7, expressly permits section appointed of- removal ficials power.37 at the appointing discretion of the Re- call has been ap- characterized as the dismissal of an pointed step electorate, officer one removed. “appointing” power and ultimate source of in a democra- cy, can remove “appointed” elected officials who are Topping electorate. State Houston, supra; ex rel. v. VI, provides: 37. Article section 7 “Appointed may civil officers be removed at pleasure power by appoint- have been shall ed.” Employees § Public Officers Am.Jur.2d, Topping, reasoned: In the court removing the discretion public officers at “The idea of novel one. power is not a appointing ... in- the direct concept done at electors, ulti- upon the stance motion republic, only back power carries mate in a source step If it is ob- of removal one farther. officer elected noxious to allow an to the Constitution appointed one, how can it be a violation to remove an people them- of that it to be done law allow selves.” 455, 143 Neb. N.W. at 800. purpose of re-

Courts which understand the nature and provi- upheld validity. have Home rule charter call its have been providing sions for recall of elected officials upheld against state contention recall violates provisions impeachment, as to method of constitutional length office, of tenure of method removal.38 Hilzinger supra, upheld re Gillman, court provisions Washington against the con Everett, call re tention that the constitutional violated state’s provisions. moval The noted: court urged finally provision “It is in the the recall that charter the is violative of section art. Constitu- tion, provides to im- ‘All not liable that: officers peachment subject be for misconduct shall to removal in in such malfeasance office manner as provided city by people law.’ . The of the framing rep- Everett in their the charter intended that strictly to both resentatives should be amenable held existing public the changing on all local and sentiment any measures, that, if the conduct of elec- official respond, he any tive officer failed at time to so subject in majority if the his to recall of the electorate 38. See note 26. appellant accepted the

district so determined. constituency, the subject his trust to this in upon dependent term of office is duration his polls. expressed majority at the of the [wish] provided sought for in removal is not of character city of the the interests Constitution. Whether public by ready will be better a obedience subserved courageous the views sentiment than adherence to a public questions concern individual officer on political, question.” legal, is a and not a Wash, Hilzinger, 234, 105 P. at 473-74. validity pred- held is not

Courts have that recall any requirement icated on officials be removed that They recognized elect- cause.39 have recall of an official, place, politi- ed like his in election the first judicial cal and not a decision.40 City Council, upholding supra, Conn v. court validity recall, noted:

“Manifestly purpose providing charter give people for a recall election is to of the munici- pality right every to cut short the term of official any officer whose elected conduct office is for cause Leatherman, supra, provi- upheld In Gordon v. the court recall Philadelphia against similar sions to those of the Charter the con- process tention recall violated due of the four- clause teenth amendment of United because States Constitution provisions require Noting recall did the Charter cause. provided political serve system for a officials in which the elected nothing inher- people, at the will of held “there the court ently system, has held unconstitutional and no court in such a require cause otherwise.” Id. at 566. The decision whether to political before an is a official can be removed the electorate people may without decision. The an elected official statement of reasons. Council, Houston, City supra; Topping 40. State ex rel. Conn v. Recall, Referendum, Initiative, supra. 106 A.L.R. See also inquiry into the contemplate judicial “Recall statutes do not truth of the designed to specific charges but of misconduct miscon- popular official afford relief from dissatisfaction duct an officer.” Am.Jur.2d, § Employees, Public Officers and body commu- of the unsatisfactory to the or distasteful procedure nity. . . owhere in . . [N] impliedly, said, expressly which anything is either designate specific acts petition requires a recall sought. . for removal is aof com- disputed the electors “It will not an whether munity qualified to determine are as well they were to in office . officer shall remain first in- upon qualifications office for decide his city of stance; so as the charter and in far privilege clearly concerned, it Richmond is province people polls, at rather than grounds upon sufficiency pass courts, by the an elected . the removal for officer recall election modern method aof 1911) (em (1st Cal.App. Dist. 121 P. at at added). phasis public

Thus, for conclusion there is no basis only cause, notice and can after officials be removed on a fail- hearing. only be based a conclusion can Such im- comprehend recall and between ure the differences peachment. drafters,

Twenty-five years ago, the Charter Com- Philadelphia recognized the people of mission and the recall, impeachment and over- difference between voters, report whelmingly chose In its recall. Charter Commission stated: process public has criticism

“There been much present prescribed by impeachment Charter. re- sought satisfactory for the a more device We have of an .... have elected official moval [W]e ” it in . . found Report Voters, supra of re- 18. The abolition To The judicial usurpation clearly a decision call is a of what people. for the Opinions the Consti- Concurring misconstrue

4. The tutions. Opinions Opinion Justice,

a. Like the of the Chief compelled Justice of Mr. Mr. Nix are Justice O’Brien and recall. to rewrite order to invalidate Constitution provi- opinions removal Both state that the constitutional procedures removal of sions are the exclusive for the opinions use some- elected civil the two officials. While reasoning, reach their on what different both conclusion analysis Article basis a textual VI. provisions Mr. Nix of Article Justice reasons that VI, 7, mandatory section clauses are and there- Although fore it exclusive. Justice Nix have Mr. would appear “plain exclusivity that from mandated reading” VI, 7, untechnical of Article section a textual analysis support interpreta- of the section does not tion. VI, provides

Article section cl. 1 that all civil offi- upon cers shall be removed conviction of misbehavior office or VI, infamous crime. Article section provides cl. 3 that elected civil officials shall removed be by the Governor for reasonable cause the address of Although language two-thirds of the Senate. provisions may these mandatory in the event of con- viction for misbehavior or office for an infamous crime, upon cause, establishment of reasonable language there is no indicating they that are exclusive.41 argues VI, 41. Mr. Justice Nix that because terms of Article they section mandatory, implies cl. are are He exclusive. provision mandatory, that when a necessarily is exclusive. provisions VI, Even if the removal of Article cl. 3 are section mandatory, compelled and the Governor and the Senate could be powers, concluding exercise their removal is no basis for there are exclusive. Just because an officer be removed must under certain circumstances be re- does not mean he cannot moved under other circumstances. VI, fallacy provisions that the removal section Article are long exclusive because mandatory, some of are been them has rejected by provisions this Court. Mr. Nix Justice states that the VI, of Article mandatory. section cl. 1 in Common- But sev- Mr. concludes that the inclusion Justice O’Brien Pennsylvania in the Constitu- eral removal mechanisms recognizes necessarily tion all others. He excludes government while the dele- Federal is a Government Nevertheless, gated powers, the State is not so limited. he all civil officers determines that the remove in the specifically is limited to those methods enumerated conclusion. There is no for such a Constitution. basis limitation, express language In the does absence of Constitution, provision not follow in the that a State making procedures legisla- the need for without available necessarily Legislature enablement, prevents tive enaсting provisions. from similar solely Concurring Opinions conclude, from the Constitution, provisions words of the that the removal language exclusivity are exclusive. there is no Since however, provisions, in these conclusion language cannot come from of the exclusive Constitu- analysis tion, but must be from an of the consti- derived tutional framework.42 McCombs, (1867) wealth v. 56 Pa. 436 this Court held that VI, provisions (then 9 of of this clause Article section the Consti- 1838) simply tution of created a condition of tenure for noncon- officers, prevent Legislature en- stitutional did from and not acting holding other This Court stated that conditions office. any attempt provision “is a to read as exclusive this removal great put perversion of- meaning. of its was never intended to It regulation legislature beyond fices created control and creating power.” Id. 441.

42. Mr. Justice O’Brien ex rel. Smillie v. relies on Commonwealth McElwee, (1937), 193 A. to conclude that provisions for in Article the removal of civil officers enumerated However, VI is not must be read to all Smillie exclude others. O’Brien’s, analysis, based on a textual but such as Mr. Justice analysis an of the broader scheme. constitutional Legislature replace This case mem- involved an effort county boards, county appointed by bers of the commis- tax sioners, appointees Common- of the Auditor General of the wealth. This Court concluded the statute: rule,’ e., principle “. i. local violates the of ‘home self-government, which, govern- triparte separation of like the powers, part mental and the is a vital of both the foundations general governments.” framework of our State Federal and Contrary approach Concurring in the taken Opinions, interpreted by the Constitution is not to be application rules, give of mechanistic so as to the words meaning appear which on their does face and purposes undermines the basic Constitution. Rather, interpret this Court should re constitutional provisions light moval of the overall constitutional scheme. As this Court stated in rel. Commonwealth ex McElwee, Smillie v. 148, 193 (1937): Pa. A. 628 “ ‘Written constitutions should be construed with ref- light erence to well-recognized and in the fun- principles lying damental constitutions, back of all constituting very warp and woof of these ” 43 fabrics.’ Id. at statute on local was “dissonant Only 193 A. at considering after the effect of the government, concluding legislation concepts,” with American constitutional Id. at VI, 193 A. at did (then the Court read Article section 7 VI, 4) Article section being invalidate the statute. Far from based on a rule of interpreting language construction for face, the Constitution on relationship its Smillie based on the between government state and local under the Constitution. It support cannot be read to interpretation Mr. Justice O’Brien’s of Constitution, the which would restrict the control of localities over their own officials. Moreover, interpretation Smillie involved an of what is now VI, 7, 2, Article section only applies power cl. re- which to appointed move officials. The ex- statement that the clause was only clusive appointed means that removed ex- officials cannot be cept by appointing power: the ap- Legislature “As did not the point incumbents, 159, the it 193 A. cannot remove them.” Id. Thus, at 633. by the application decision has no to an effort the citizens to remove from they office an have official elected. 158, 43. 633, 327 Pa. at quoting 193 A. at ex White v. State rel. Barker, 96, 104, 204, 116 Iowa (1902). 89 N.W. 207 guideline This by of is the constitutional followed construction Supreme United States Court: meaning at, provisions] “[The is to be constitutional arrived themselves, only by not but words the consideration law, well, considering, context, purposes the the the employed.” circumstances under which the words were 602, Carter, 418, 420, District Columbia v. 93 S.Ct. 409 U.S. 604, Co., (1973), quoting 34 L.Ed.2d 613 v. The Puerto Rico Shell Ltd., 253, 258, 167, 169, (1937). 302 U.S. 58 S.Ct. L.Ed. 235 context, Supreme another noted the United States Court has analysis ‘legalistic “constitutional minuet which is not a scheme, there Looking at the constitutional overall provi- deciding the constitutional removal basis for This sions officers. are exclusive as to constitutional principle, however, the between stems from distinction out set constitutional nonconstitutional officers support VI, to It cannot be used Article section l.44 govern.’ precise we ‘examine rules and forms must Instead must relationship light for the sub- it casts on the form ” Nyquist, 413 U.S. Committee Public Education v. stance.’ for 2974, 756, 789-90, quoting (1973), 93 S.Ct. 37 L.Ed.2d 948 Kurtzman, L. Lemon v. U.S. S.Ct. Ed.2d 745 VI, provides: 44. Article section officers, provided Consti- for in this “All whose selection tution, appointed as be directed shall be elected or law.” provided the Con- For for in those whose is not offices selection tenure, stitution, Legislature may conditions determine the Thus, it- procedures including Constitution for removal. it is the officers, those distinguishes self which constitutional between officers, Constitution, those named in the and nonconstitutional VI, coverage within the Article section language nothing of the Constitution Since there is in the supports Concurring interpretation Opinions’ exclusive, provisions con- for their removal are is no basis there VI, in- inapplicable it is clusion that consistent with the more beсause Article section 1 is Article provisions of specific removal VI, together, provisions read section 7. When these Legislature clearly indicate a constitutional scheme in which officers, may at- is tach regulation but limited its of constitutional officers. conditions to tenure nonconstitutional Concurring Opinions significance of Arti- comprehend the fail to VI, cle section and in read out of the Constitution. effect it Legislature Mr. has if Justice O’Brien that even asserts tenure, power have does not determine conditions power provide officers. of nonconstitutional the removal contrary officer This is law. If an illogical both to our case conditions, he shall subject holds office means that to certain words, lose his office In other if he the conditions. violates violated, Jus- when Mr. removed. conditions are he shall be O’Brien, by distinguishing power tice conditions establish power remove, from to establish renders the recognized illusory. that the conditions of tenure Our cases have power power implies the necessarily to create nonconstitutional offices abolish, power regulation removal. the lesser See, Township Case, Impeachment g., supra; e. Marshall Milford McComb, Removal, supra. Supervisors’ supra; v. Commonwealth power to power to Legislature’s Mr. Justice O’Brien also states abolish does not establish nonconstitutional offices may be some remove there nonconstitutional officers. While reasoning Concurring Opinions the constitu- provisions tional removal are exclusive to nonconstitu- as tional officers as well.

When offices, the Constitution created certain rather leaving Legislature, them than to be created it in- tended that independent Legisla- these offices be Legislature ture. Since the power does not have the create office, it cannot it abolish nor alter condi- tions of This power, tenure. balance envisioned the Constitution, destroyed Legislature would be if could tenure, including enact conditions pro- removal visions, for pro- constitutional other officers than those vided for in the Constitution.

None of present, however, these considerations are the case of those specifi- offices which the Constitution cally Legislature allows the to create. The Constitution envisions Legislature that the may provide for the selec- tion and appointed removal of both elected and officers. To hold that provisions pro- the constitutional removal scribe the Legislature’s power to control officers which they have created subverts frame- constitutional work. Opinions’ Concurring interpretation of the Consti-

tution also subverts provisions for lo- constitutional self-government. cal Pennsylvania Article IX of the Constitution authorizes Assembly provide the General government. provides delegation local It for the comprehensive power municipal government. Central to this scheme constitutional of local self-control is the government of local to select remove its own provisions elected officials. When the removal Article Legislature merit to this distinction when the enacts a new re- provision office, moval appli- after an incumbent takes has no where, here, provisions cation the removal are enacted when provisions office created. If removal are in effect elected, when the incumbent of his tenure. condition subject He takes provisions. office to the removal See Suermann Hadley, 190, 200, 193 A. light it that IX is clear of Article VI are construed provi- intend the removal framers not constitutional did proscribe in the to sions Constitution enumerated local power government officials. to remove local McElwee, supra, In ex Commonwealth rel. Smillie rule, and importance of recognized home this Court power be- importance proper distribution government, constitutional tween local our state and framework:

“ rule,’ e., local self- principle i. . ‘home . . gov- government, triparte separation which, like the founda- part powers, of both ernmental is a vital fed- and general tions of our state and the framework governments.” eral

“ primary . . vital . and idea [home [T]he managed local is, local affairs shall rule] authorities . .” 152, 193 Pa. A. at 630. the con- context, it is

When in this clear construed limit provisions stitutional not intended removal were government remove its of local citizens and their own officials. Opin- Concurring recall, order to

b. invalidate compelled long ions are cases line of assert distinguished which have between constitutional This dis- nonconstitutional officers be overruled. should itself,45 tinction articulated and had Constitution VI, 45. Article section 1. establishing Mr. Justice Nix reasons that cases the distinc- tion between constitutional are in and nonconstitutional officers appointed fact offi- based on the difference elected between VI, rely cials. makes But these cases 1 which on Article section appointed no author- distinction between It and elected offiсials. of- Legislature provide appointed” izes the for both “elected or VI, recog- fices. interpreting The case law 1 has Article section appointed nized that not make it does a distinction between recognized by been Yet this Court at least since 1867.46 Concurring Opinions appear that Mil would have Township Supervisors’ supra, Removal, created ford VI, new rule of decision section when it held that Article apply cl. does of nonconstitutional removal Legislature officers if the enacts removal alternative procedures. doctrine; did not announce a new Milford merely applied a well well established doctrine facts contemplation within the established cases which the doctrine. century ago, recognized

Over a this Court distinc- tion between constitutional and officers nonconstitutional unequivocally power Legisla- sanctioned the ture to select and remove elected offi- nonconstitutional cers: having

“Not Constitution, been mentioned legislature power pre- was left with unrestricted scribe what the be, duties of the office should what the length of tenure, its emoluments, what its how it should Having be power filled. create, power have also the regulate, destroy.” and even elected officials applied provision and has appointed to both and elected officials. fact, In the distinction between constitutional and nonconstitu- tional officers was involving first announced in a an elected case McCombs, then, official. supra. Commonwealth v. Since this repeatedly involving Court has reaffirmed the in cases doctrine 304, Case, elected officials. Impeachment See Marshall 360 Pa. 276, Davis, 62 (1948); A.2d 30 Pa. Commonwealth ex 299 rel. v. Removal, 149 (1930); A. 176 291 Township Supervisors’ Milford 46, Pa. Reid, (1927); 139 A. v. 623 rel. Vesneski Commonwealth ex 328, Moir, 265 Pa. 199 (1919); 108 A. 829 v. Commonwealth 534, Pa. Weir, Braughler v. (1901); 49 A. 351 rel. Commonwealth ex 165 (1895). Pa. A. Moreover, nothing in the cases treated constitution- which have differently al supports way nonconstitutional officers applica- Mr. equally Justice interpretation; Nix’s their rationale Compare ble to elected or appointed officers. nonconstitutional Milford, supra, Ziegler, 193 A. with Weiss v. 327 Pa. (1937). McCombs, (1867). 46. Commonwealth v. 56 Pa. 436 McCombs, Commonwealth v. (then provisions

discussing removal the constitutional 1), VI, cl. section Article VI, 9, now Article section this Court noted: by the put created offices intended to

“It was never regulation of beyond the control and legislature an ordain that intended to creating power. It was not made, not years, should once office for a term of unex- abolished, the term remained modified while pired.”

Id. at 441. Weir, Braughler Pa.

In Commonwealth ex rel. involving Court, an case (1895), A. 835 reaffirmed official, McCombs and elected followed nonconstitutional distinction constitutional and between officers:

“ legislative only and . as to offices which constitutional, created them impinging change pleasure them without abolish at right possessor of upon constitutional office, violating any duty legislative and without body.” 288, 30

Id. at A. at 836.47 Court, legislation years later, upholding this Several municipal removing an elected which had effect recog- again expired, his term office official before legislative power nonconstitu- nized the over extensive tional officers: office, right public no

“There is to a unless under constitution, express such protection protection given municipal officers. is nowhere by any Merely positions, unprotected

. official special provisions, subject the ex- constitutional 213, 221, 199, Smith, (1896), Lloyd Pa. v. A. In constitutional, ex- “An office . . noted that Court ists legislature only, may be abolished will any time . . ercise of the legis- repeal by revision and ” lature. . . . Moir, Commonwealth v. 548-49, 199 Pa. 49 A. (1901) (citationsomitted).

In Case, Bowman’s supra, this Court held that the con- stitutional provisions removal were exclusive as to con- stitutional doing, officers. In so this Court noted the distinction between constitutional and nonconstitutional expressly recognized officers and that nonconstitutional might subject officers not be to the constitutional remov- provisions: al

“As a officer, . constitutional . elected people, only by he is to be removed from his office Governor for reasonable cause after due notice and full hearing, on the Senate, address of two-thirds of the for, though filling purely legislative others offices provision removal, be without the constitutional as to clearly he is within it.” (emphasis added). Pa. at 74 A. at 204. Bow-

man recognize was not the first case to the distinction between constitutional and nonconstitutional officers. Rather merely referring Bowman already was to an well principle. year established that Bowman the same decided, this Court stated: “ . recognized by .a clear distinction is our cas- es enjoying exemption between a constitutional office legislative from interference control and one whol- ly legislative, legislative created and abolished at the will.”

Richie Philadelphia, A. 430 (1909). years

Ten Bowman, reemphasized after this Court importance of the distinction between constitutional and nonconstitutional officers in Commonwealth ex rel. Ves- Reid, supra. neski v. Although specifically Reid held legislative the absence of a enactment an elected the constitu- the basis of removed on official had opinion clearly sanctions provisions, removal tional pro- constitutional removal legislative alternatives elected officials.48 visions in the of nonconstitutional case new not Thus, it did announce is clear Milford merely applied Rather, well estab it rule of decision. by Constitution, con doctrine, lished articulated century. sistently for over a this Court adhered adopted Mil uniformly subsequent Moreover, cases have There no reason to overrule rationale.49 is ford’s long They the letter line are of cases.50 consistent give effect to the constitutional Constitution and is, people 48. “As it the services of the officer entitled to during unless he be the entire term for which elected him Constitution, way prescribed by removed by the if the officer is a . . . or constitutional officer Legislature Constitution or authority provided or under its in the manner statute, offi- if a constitutional the officer cer . . .” 333-34, 265 Pa. at 108 A. at 831. [MJunicipalities “. be satisfied of the State must provided, un- with the methods and causes of a motion therein wisdom, legislature, til and shall add thereto.” unless the in its 335, Id. at 108 A. at 832. 542, Board, Pennsylvania 402 Pa. Bowers v. Labor Relations Pennsylvania Turnpike (1961); Commis- A.2d 480 Watson v. sion, 117, ex rel. (1956); 386 Pa. 125 A.2d Commonwealth Beattie, (1950); Im- Bunch v. Marshall 364 Pa. 73 A.2d 664 Case, peachment (1948); 360 Pa. 62 A.2d 30 Commonwealth Davis, ex rel. v. 149 A. 176 distinguishing 50. Our case and non- law between constitutional significant provides the constitutional officers background against also in that pro- present removal which the constitutional adopted. interpreting visions were Constitution Cases both the presently of 1838 and the relied on what is Constitution of 1874 VI, distinguish Article between constitutional section 1 to removal nonconstitutional These hold that officers. cases provisions officers. are not as to nonconstitutional exclusive They readopted. provisions the constitutional removal were form, no there was were renumbered and modified in minor but attempt had and language upon to alter the distinction Thus, section, readoption been in 1874 based. of this again tinguishing support dis- cases lends to the conclusion that the officers between constitutional and nonconstitutional give proper provisions. effect to the constitutional power govern- distribution of between state local ment. Concurring Opinions

c. The the constitu- state provisions no exclusive, tional there is removal but language supports in the their inter- Constitution which pretation. opinions in- employ mechanistic rules of terpretation meaning give provisions the removal appear They which does not on their fail to com- face. prehend VI, provi- Article constitutional section the Legislature sion which re- authorizes the to select and move officers, nonconstitutional assert that the cases interpreting provision this At the should be overruled. time, Concurring Opinions give same the con- the fail to provisions interpretation stitutional removal an consistent If with the overall constitutional framework. majority adopt position were taken this Court Concurring Opinions, government cit- and its local powerless izens would be their of- to remove own elected self-gov- ficials, provision and the constitutional for local ernment would be undermined.

Moreover, Concurring Opinions only obfuscate presented: validity issue recall. As Concur- ring Opinions recognize, position take is con- trary jurisdiction. to the case law in this the Con- Since curring Opinions cases, Legisla- do overrule these power provisions gov- ture still has the to enact removal erning Concurring the offices it creates. While Opinions may question Legislature whether should power, they provide have ‍​​​‌​‌‌​‌​​​​‌‌‌​​​‌‌​​‌‌‌​​‌​​​​‌​​​​​‌​‌​​‌‌‌​‍this conclusion no basis for a power authority provide that this does not include the Thus, provide for recall. Legislature may the re- moval of nonconstitutional officials, and this must ability include to authorize the of nonconstitu- tional elected officials. for the recall of Provisions Mayor Philadelphia adopted pursuant have been authority; provisions Philadelphia the recall Home Rule Charter are constitutional.

IV. adopting Philadelphia, their vote citizens un- Charter, elected officials Home determined Rule subject the elec- accept to recall office der Charter recall reserving to themselves torate. Philadelphia, thou- like officials, the citizens elected in accordance Pennsylvanians, have acted of other sands self-govern- principles American with well established procedure adopt for more di- ment. Their decision classic demon- city “is a government rect control over ” City democracy . stration of ‘devotion to 679, 668, Enterprises, U.S. City Eastlake v. Forest (1976), quoting 2364, L.Ed.2d S.Ct. Valtierra, 91 S.Ct. James v. 402 U.S. 28 L.Ed.2d 678 reasons, Opin- Although they agree on their cannot Concurring Opinions, ion Justice and Chief un- pronounce recall necessity justification, without democracy itself, not be Like constitutional. wis- perfect, question it is but not for this Court fu- adoption. hope in the only dom its can One more come to a ture, setting, another will Court Pennsylvan- enlightened realistic view restore right ia their to recall. di-

I court’s order dissent and affirm trial would recting that the held. recall vote be

Case Details

Case Name: Citizens Committee to Recall Rizzo v. Board of Elections

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 19, 1976

Citation: 367 A.2d 232

Docket Number: 90; 89

Court Abbreviation: Pa.