*1 funding, judgments able due to the limited factors, DISTRICT,
CLS
consider various
includ- HARRISBURG
SCHOOL
ing
“the likelihood of success on the mer-
Harrisburg
Board, Joseph
C.
its,
clients,
prior experience with the same
Brown,
Cammack,
M.
Kenneth
Linda
credibility
assessment of
client’s
and
Leister,
Hill,
R.D.
Judith C.
Wanda
responsibility to adhere to ethical consider- Williams,
individually,
parent
and as
Id.
ations.”
guardian
Rauwshan
and natural
Williams,
Davis,
individu
Ricardo A.
matter,
pre
In this
the evidence
ally
parent
and as
and natural Guard
hearing
sented at the
showed that Adams
Stephenson
ian
and Tiffa
of Jeremiah
already
provided
hearings
had
been
Chambers,
Ford,
ny Davis,
Joy
Clarice
appeals
1986 on his unsuccessful
from the
individually
parent
natural
and as
employment.
termination of his
Adams
guardian
Wilson,
of Samantha
Grace
present any
did not
relevant evidence to
Bryant,
Cobb-Wingfield,
indi
Glenise
support
request
his
hearing
for another
vidually,
parent
and as
and natural
years
made almost fourteen
after his un
guardian
Wingfield
challenges
successful
to the termination.3
Johnathan
After the
investigation
extensive
of Adams’
Wingfield,
Asia
Citizens Con
claim,
professional judg
CLS made the
First, By Dwayne
cerned for Children
request
hearing
ment that his
for another
Carter,
and Dale
Ad
Blount
Trustees
Systems
before the Merit
Protection
Litem, Petitioners,
Board did not
any legal
have
basis.
v.
Where,
here, a lawyer
knows that his or
merit,
her chent’s case
legal
lacks
HICKOK, Secretary
Eugene
of Edu
W.
lawyer
not
only justified
refusing
cation,
Pennsylva
represent
the client but also mandated to
nia,
Reed,
Stephen
R.
of Har
Department
do so. Peace v.
Public
I,
risburg,
Doe
Jane/John
Jane/John
300,
Welfare, 98 Pa.Cmwlth.
ed in and filed in which
Smith, J., joined in part.
Leadbetter, J., dissented and filed
opinion. DOYLE, Judge, President
Before SMITH, McGINLEY, COLINS, PELLEGRINI, KELLEY, and LEADBETTER, Judges. *3 PELLEGRINI, Judge. objec- are
Before this Court by filed of a demurrer in the nature tions ac- above-captioned in respondents Commonwealth) in (collectively, tion in the petition for review response to declar- equity complaint of a nature by petitioners judgment filed atory (collectively, action captioned the above District) challeng- Harrisburg of 2000 constitutionality of Act 91 ing the (the 91), an amendment Amendment/Act Act, Act No. Empowerment Education 2000-16(EEA), §§ 17-1701-B —17- P.S. 1716-B.
I.
A. 10, 2000, May on EEA was enacted Secretary of Education and authorized the in a of a school district place the control the school district where Board Control Pennsylvania System history of low had (PSSA) scores. test of State Assessment history that had a Those school districts placed on an were low test scores Placement Empowerment List. Education process that re- triggered on the List Em- to form an the school district quired develop an that would powerment Team approved by the Improvement Plan. Once Education, Improvement Secretary of affect- implemented by the Plan had to be Katzman, Harrisburg, pe- for M. Ronald Section 1703-B ed school board. titioners. 1949, Act of March Code amended, § 24 P.S. 17- P.L. respon- Doyle, Harrisburg, for Daniel J. did school district If the affected 1703-B. dent, Secretary of Education. plan in the established goals not meet the pursuant years, three respon- within Harrisburg, P. Prugar, Todd 17-1705-B, 1705-B, the school 24 P.S. dents, Harrisburg, Mayor Jane/John Em- an “Education was declared district Doe, et al. powerment Plan, District.” ing Improvement The Board of Con- and while the trol all assumed and duties con- empowerment teams other affected ferred law on the Board of School school districts elected chairperson, their exception Directors with the appointed the team to be 1706-B, levy taxes. Section the Reed Amendment was to be under § 17-1706-B. When an affected school chaired the Mayor designee. or his district had met goals Improve- response, School Dis- ment Plan longer history and no had a alia, complaint trict filed a alleging, inter performance, low test control was restored that the Reed Amendment was unconstitu- to the Board of School Directors. Section 1710-B, tional as legislation and violated 17-1710-B. *4 protection equal rights because it treated process While this was the established that school district different from any oth- by which the General Assembly would er school district in the treat school with historically districts low placing it under the control of a Board of scores, test Harrisburg School District Control that was Mayor controlled differently was treated under the now re- rather than the affected school pealed EEA, district. It Section 1707-B of the (commonly 17-1707-B also filed a motion preliminary referred to as the for a in- “Reed Amendment” after the current Har- junction on it dispa- based what considered Reed). risburg Mayor Stephen Section rate treatment under the Reed Amend- 1707-B defined “certain school districts” 30, 2000, ment. By order dated June we as a “school district of the second class granted preliminary injunction enjoining history with a performance low test the Reed Amendment from taking effect which is city coterminous pending further order of this Court. On permanent third class which contains the appeal order, from that Supreme i.e., government,” seat of the Harrisburg affirmed, agreeing Court the Reed provision, District. Under that the Amendment spe- was unconstitutional as Secretary was directed to waive the Har- legislation. cial Harrisburg School Dis- risburg School District from inclusion on II), trict v. Hickok (Harrisburg 563 Pa. Empowerment the Education List remov- (2000). 761 A.2d peti- As to the ing from that opportuni- school district the itself, tion we dismissed the Common- ty implement to Improvement an Plan but objections wealth’s immediately certify it as an Education Reed proper, concluding Amendment was Empowerment triggering ap- District that the Reed Amendment violated Article pointment aof Board of Control. The III, Section 32 of the Consti- Board of Control would not be a three- special tution as legislation. Before the appointed by member board Secretary resolved, finally likely by case was most but instead the who Harrisburg judgment on pleadings summary or appoint was to a five-member board that judgment, we dismissed the pleasure. served at his Mayor, The rather complaint School District’s as moot be- district, than the affected school also was Assembly, cause the General in direct re- appoint Empowerment an Education decision, sponse Supreme Court’s Team develop Improvement an Plan for enacted Act 91 to language amend the Department transmission to the of Edu- the Reed Amendment which led to the Department cation. required was not petition appoint advisory filing pre- of this and the instant academic team to Empowerment develop- liminary objections. assist the Team in Assembly act- the General contending that
B. enacting the unconstitutionally in ed pro- attempt violating the In an to avoid Specifically, asserted Amendment.2 special legislation, against hibition five counts: petition following the “class” of school Amendment redefined (cid:127) III, of Article I—Violation Count It subject mayoral districts control. Con- 32 of subject provided that a school district now creates a The Amendment stitution. of con- appointment mayoral of a board special districts for sub-class of school population in excess of trol had to have treatment, in vi- including Harrisburg, 45,000: olation of Article District of the Second Class “[A] Assembly from prohibits the General history extraordinarily which has a regulating law passing local performance, low test which is cotermi districts. City nous with a of the Third Class (cid:127) Amend- II —Violation of XIV Count opted “Optional under the Third has Constitu- ment to the United States City Class Charter Law” 53 Pa.C.S. violates the tion. The Amendment Subpt. governed by Pt. III E to be *5 Equal Protection Clause of the Four- mayor-council form of Amendment because it treats population which has a excess of for teenth (45,000).” extraordinarily of low ty-five thousand the sub-class differently performing school districts 91, amending Section 9 of Act Section similarly from all other situated school 1707-B of the of Public School Code districts. 17-1707-B. The Amendment (cid:127) IX, III —Violation of Article Count provided Mayor also that control Pennsylvania of the Con- Section 3 only could be exercised where there was a stitution. The Amendment unconsti- history “extraordinarily perfor- of low test just changes the form of Harris- tutionally mance” rather than low scores.1 test By incorporating burg’s government. Sections 694 and 695 Code, 6-693, §§ 6- (cid:127) P.S. III, of Article Count IV —Violation 6-695, apply 694 and Boards Fiscal Pennsylvania 31 of the Con- Section Control, gave the Amendment further power to the Giving stitution. appointed by the Board of Control III, Article Board of Control violates power compel the School prohibits the General Section 31 which Board to taxes in certain circum- raise any spe- delegating by seeking stances an order from the court levy tax- cial commission the pleas of common for it to do so. The Board of Control is a es. gives commission and the Amendment Harrisburg The School District has filed power the Con- taxing the Board the petition for review to have the Amend- forbids. ment to Act 16 declared unconstitutional stitution Harrisburg request- 2. School District also under Act 16 low test scores were While injunctive or more of students who preliminary defined ed relief but order 50% 15, 2000, below basic level scored in bottom 25% we dated December of this Court performance on the PSSA test in math and injunction finding preliminary denied the 17-1702-B, reading, under the see Harrisburg had failed to School District Amendment, extraordinarily low test scores cjear grant right necessary to to relief show having district a com- are defined as a school injunction, preliminary average bined or more of students 60% group below. score in the bottom 25% (cid:127) VI, Article er the law under consideration is clear and Count V—Violation Pennsylvania Con- from doubt. free
stitution. The Amendment transfers
powers of the
Board to the
II.
Control, thereby removing
Board
I
COUNT
Board members from office
the School
VI, §
of Article
7 of
contravention
SPECIAL LEGISLATION
Constitution.
contends that
The Commonwealth
response
petition
In
to the
for re
Amendment is in accord with Article
view,
prelimi
has filed
Commonwealth
Constitu-
objections
that each of
nary
contending
tion because the class of school districts
counts fails to set forth a constitu
those
one,
that it creates is not a closed class of
tional violation and
and the class bears a reasonable relation-
complaint should be dism
School District’s
object
perfor-
ship
improving
Regarding our standard of re
issed.3
with the most
mance of the school districts
objections, previously,
preliminary
view for
problems.
support
of this
significant
objections
only
were
to be sus
claim,
argues
that the
that were clear and free
tained
cases
is a rational one because
classification
plead,
all
from doubt from of
facts
on test scores of school districts
based
pleader
prove
that the
was unable to
facts
extraordinarily
history
with a
of low versus
legally
right
sufficient to establish his
performance.
It notes that
low PSSA test
v. Labor Relations
relief. Commonwealth
adopted by
urban
(1996);
it follows models
other
Board,
Pa.
227 adop nearly years 70 after in the For bly freely experiment entitled to is against local and proscription Harrisburg tion area of education. The laws, recognized was special population Article argues District this violates for classification ground valid III, sole designed it is Section 326 because However, municipalities. include in the classifica- only Haverford Court, uphold Supreme our Township, and, event, no rational reason tion legislation requiring as constitutional ing Assembly to create exists for the General boroughs and for all police civil service way in the did.7 classification more than townships that had first class III, Pennsylva- Article officers, recognized that police three adopted “[t]he was to end nia Constitution ability Assembly had the to create General legislature evil interference of the [of] something other based on classifications consulting the locali- local affairs without population if it did not establish than special privileges granting ties and the the law closed class. The current state of favored exemptions to individuals or now is that the General Gilligan, localities.” Commonwealth v. violating without establish classifications (1900); 504, 513, A. 126 195 Pa. 46 III, Article Section 32 Siegle, v. 346 Pa. Township Haverford that it is only so far as to see Constitution (1942). people A.2d Although between the founded on real distinctions Pennsylvania purposefully restricted on arti local classified and not Assembly’s ability special to enact General pur used for the ficial or irrelevant ones legislation, and local does Constitution prohibition. pose evading constitutional require applica- not that all legislation be Co., Storage Armstrong Freezer v. Cork. ble to the entire Article Commonwealth. (1978); A.2d 715 Harris 476 Pa. specifically grants Hickok, v. 762 A.2d burg School District counties, legislature classify (Pa.Cmwlth.2000). cities, boroughs, districts and town- ships population provides Under that standard for determin according legislation gener passed relating ing that all laws to such whether *7 al, prelimi the Commonwealth’s general legislation. grant classes shall be deemed count, Where, however, the class of nary objection a to this “the class to which creat extraordinary failing school districts unnecessarily statute is made is restricted closed, selected, must not be improperly spe- by still law is ed the Amendment closed, if be created based on City Philadelphia, cial.” v. and not must Chalmers of (1915). 251, 256, 427, opposed pertinent distinctions as Pa. 95 A. 429 real 250 (1961), explained Legislation 336 what consti- 6. enacted the General Assem A.2d special law: tuted a strong presumption bly carries a of constitu challenging tionality, party and the the consti general opposite a special law is the of [A] tutionality heavy a burden of statute bears through- special not uniform law. A law is clearly, demonstrating that the is of statute gener- applied A state or to a class. out the plainly palpably and unconstitutional. Com Legisla- known that the al law is. It is well Burnsworth, Pa. 669 v. 543 monwealth A cities and counties. ture has classified (1995). A.2d 883 dealing with all cities or all counties law law, special a not a but the same class is law, Appeal of Torbik, application. Supreme Court in uniform in its general Our 230, 241, (1997), county a dealing but one 696 A.2d But a law with Pa. ten, consisting be local or quoting v. Harness Rac would from Heuchert State class Commission, 440, 446-47, special. ing 403 Pa. city particular artificial or irrelevant ones. The dis- that itself is a subclass of a municipality tinctions used in home rule that General is further nar- population rowed a creating a class classification that extraordinary failing population itself is a subclass of justifies classifica- school districts that the distinction tion used to determine city classes of indi- jus- failing other school districts and object that legislation cates was placement tifies immediate of the school down the winnow number of school dis- Control, district under a Board of giving apply very, tricts so that would to a ability the Board of Control the tax seek that, very, very small number. While having increases and the Mayor rather itself, legislation and of does not make the Secretary appoint than the the “at will” prohi- violative Article Section 32’s Board, are: against legislation, bition the ab- (cid:127) the School District involved a must be any apparent “rhyme sence of or reason” Class; District of the Second used that they the factors indicates (cid:127) municipality involved a third is were artificial and irrelevant to remedying city opted class that has under the the situation in districts with “extraordi- Optional City Third Class Law to narily low scores.” PSSA adopt a Mayor govern- Council form of Assuming that ment; the 10% difference low-test scores and PSSA tests are (cid:127) Optional City Third Class must if meaningful, that makes the situation so 45,000; have a population of more than grave that an immediate takeover of the (cid:127) Optional Third City Class must be necessary, school district there is no co-terminus with the Second Class apparent real educational distinction to District; and place only “extraordinarily second class (cid:127) history the School District must have failing immediately school districts” under of extraordinarily test scores. low Board Control and not all such “ex- perti- As to whether these are real and traordinarily failing school districts.” Sim- distinctions, nent we must look to see if ilarly, stage at this proceeding, they justify treating the school districts apparent there is no why reason as to it is fall within other similarly districts pertinent in remedying the situation to situated in the Commonwealth. immediately place under a Board of Con- respect, there must be a rational reason to only trol second districts class school immediately place those school districts Optional are with coterminous Third Class May- under Board of Control and have a Mayor-Council Home Rule Cities appoint the Board of Control rather population forms of or with a than the Secretary of Education. *8 45,000 of over when the situation would be just grave The number and oddness of the distinc- for all in all as students extraor- dinarily tions that mix and match a failing class school districts to warrant an im- particular awith subclass of a third class mediate takeover.8 Law, Optional 8. The Amendment also does not include other ter and Plans 53 Pa.C.S. Mayor-Council Optional §§ May- Home Rule Plan cit- 2901-3171. That Act contains three A, (Plans C) virtually governmental optional plans that have ies identical or-Council B and purposes, nearly City Op- and structures. For all intents identical to Third Class City Optional (Op- Mayor-Council Third Class Charter Law tional Charter Law with the Law), 15, 1957, July government adopted by tional Act Plan A and Charter P.L. form of amended, 41101-41625, process culminating presen- §§ as 53 P.S. the same with supplanted by adoption. has been the Home Rule Char- tation to the electorate for its For
229 compare school rational to whether it is the Board going appoint who is to As to 4 mil- issues, near Control, populations have may be districts that absent other million, to a school municipali- respectively, 2 a whose and rational to have lion 45,000, if dis- population with a school a ty is coterminous both with district justifies a appoint program” the Board of Control “pilot trict a creation of in- control and continuing applied ensure local be class, could any regulation Board of support by just for the creased local district city or school any specific Control; why explain not but that does Arti- making “pilot program” it a labeling class only applies to second that concern of the 32 cle coterminous with districts that are school is The same meaningless. Constitution Mayor- Third Class Cities with Optional that the General the contention true as to that have forms of Council experiment Assembly right has some 45,000 and not all cities population of over of the Penn- Clause under the Education municipalities townships or home rule it to treat allowing sylvania Constitution any with class of that are coterminous differently. districts individual school district. pre- provisions were Both constitutional of the as a result the voters sented to argues
Regardless, of 1873 Convention Constitutional created of school districts that the subclass in the Edu- nothing means that necessarily it is the Amendment is valid because by the General gives cation Clause systems based on model educational legislation to enact dispensation Philadelphia. Ignoring and Chicago § act on behalf of who shall City Optional Char- 53 Pa.C.S. example, the Third Class gov- mayor prevented to Mayor-Council mayor with the form when the ter Law Optional act; Optional Plan A set forth compare ernment Section 414 of the city municipality governed Law, shall be § to 53 Pa.C.S. 53 P.S. 41414 Charter council, mayor, an elect- an elected an elected 3013, maintaining department of adminis- § treasurer, ed an elected controller tration; Optional compare Section 416 appointed. Com- other officers Law, § to 53 Pa.C.S. 53 P.S. Charter Law, Optional Charter pare Section 402 of the approv- budget preparation and § amended, § 41402 to 53 Pa.C.S. as 53 P.S. al; 417 and 418 of compare Sections mayor, They require §§ that the 3002. both amended, Law, 53 P.S. as Optional Charter be elected treasurer controller §§ 3015-3016. §§ to 53 Pa.C.S. 41417-41418 years. Com- to serve a term of four electors Optional B and C are also Plans Home Rule Law, pare Optional Charter Section 403 of the City Class A and the Third to Plan identical amended, § 41403 to 53 Pa.C.S. 53 P.S. exception that with the Optional Charter Law require that the council They § both 3003. head requires a director to Optional APlan to be elected shall consist of five members Optional B mere- Plan department while each Compare Section 404 of the the electors. department of administration ly requires a Law, § Optional 41404 to 53 Charter managing requires director. C and Plan They provide § that the Pa.C.S. 3004. both and C are Optional Plans B aspects, all other by the legislative power be exercised shall and the Third Optional Plan A the same as 407 of municipal Compare Section council. Though vir- Optional Charter Law. City Class Law, Optional Charter optional third class cities tually with identical They provide both 53 Pa.C.S. structure, for governmental having the same municipali- city or executive reason, and school those cities apparent no Compare by mayor. ty shall be exercised been optional plans have these districts Law, *9 Optional Charter Section imme- that allows the the class excluded from Addition- 41411 to 53 Pa.C.S. and the by a Board of Control takeover diate language they identical ally, both have almost by the of Control appointment of the Board approval of dealing with ordi- statutes in their taxing gives the Board of Control mayor and Optional the Compare Section 413 of nances. amended, Law, powers. § 41413 to Charter as an experiment even as for school districts. at first glance ap While it would Consequently, the pear Education Clause does that it is the challenge brought same III, supercede not pro- Article III, Section 32’s under Article Section under an against special hibition legislation. equal protection analysis, analysis not concerned with whether the class of apparent Because no reasons exist at III, municipality is valid under Article Sec stage this of the proceeding to establish tion 32 of the Pennsylvania Constitution that the criteria used in creating puni- but object whether it is valid to treat the tive class are real distinctions between the legislation differently from how that local governments classified and not on object is treated other classes munici artificial or irrelevant ones used for the palities or school districts. v. Defazio purpose III, of evading Article Section Civil Service Allegheny Commission of preliminary objection Commonwealth’s County, Supreme our Court addressed to Count I is overruled. equal protection similar challenge to an act treated the sheriffs of second class
III. counties differently than counties other
classes.
It held that
if
legislation
even the
II
COUNT
general
was
in nature and did not violate
III,
Article
equal protec
under
EQUAL PROTECTION
tion, a distinction could not be made that
any
treated
differently
subclass
that bore
In Count II of its complaint, the
class,
relationship
no
general
to the
stat
Harrisburg School District alleges that it
ing:
has
equal protection
been denied
under the
Here,
Attorney
argues
General
United States Constitution9 because Act
legislative
Allegheny
classification of
singles
it out for treatment different
County as a
county
second class
and the
from other school
similarly
districts
situat
unique function of the
ed in
sheriffs office
that the Amendment treats the Har
upon just
rest
“ground
such a
of differ-
risburg School District differently than it
justifying
ence”
the classification and
similarly
treats other
situated school dis
However,
tricts
different treatment.
removing
people’s
duly elect
legislation in question
ed school
goes beyond
board from
and unilateral
ly
merely singling out
inserting
Allegheny County
his Control
Board
positions.
into their
a class to be
differently
For
treated
and in
the same
reasons that it
essence
argues
effectively
that no
has
created a
claim was
new
brought
sub-classification,
under Article
Section 32 of
that of the
sheriffs
Constitution,
the Pennsylvania
Plainly
second class counties.
Com
such
preliminary objections
monwealth
relationship
sub-classification bears no
contends that Harrisburg School District
Allegheny
either to the distinction of
pled
has not
a claim.
County
county
aas
of the second class
Equal
9. The
any
Protection Clause of the United
state shall make or enforce
law which
States Constitution is found at Section 1 of
abridge
privileges
shall
or immunities provides:
Fourteenth Amendment and
States;
citizens of the United
nor shall
life,
deprive any person
liberty,
State
persons
All
born or naturalized in the Unit-
States,
law;
property,
process
due
subject
jurisdiction
ed
without
nor
thereof,
deny
any person
jurisdiction
are citizens of the United
States
within its
they
and of the
equal protection
State wherein
reside. No
laws.
*10
relationship
a fair and substantial
any unique function of the office of
have
or to
object
legislation.
to the
of
county sheriff.
to the
appellant’s arguments
We find
436,
at
Defazio, 562 Pa. at A.2d at ment Plan and school board members of those districts are divested of their school Kline,
Quoting v. Curtis 542 Pa. 666 duties while other school boards of ex- (1995), Supreme A.2d 267-268 our not. traordinary failing school districts are explain Court then went on to the nature at apparent Because no reason exists this protection equal analysis: of an justify stage proceeding treating extraordinarily failing dis- certain princi- The essence of the constitutional of other differently tricts from members ple equal protection under the law is situated, similarly school districts persons like in like circumstances objection However, preliminary will Commonwealth’s similarly. be treated II is overruled. require persons not Count does that all under enjoy protec- all circumstances identical
tion right equal under the law. The IV.
protection under the law does not abso- III COUNT
lutely prohibit the from Commonwealth classifying purpose for the individuals RULE HOME treatment, receiving different and does contends require equal people not treatment of The School District third prohibition by empowering of a having different needs. The against people differently city appoint un- class Board Control treating Team, the Amend- preclude Empowerment and an der the law does not the Com- IX, legislative ment violates Article resorting monwealth by changing the classifications, clas- Constitution provided those Mayor-Council form of are reasonable rather than sifications Optional Third adopted pursuant rela- arbitrary and bear a reasonable Law, object legislation. City Charter tionship to the Class words, of the electors of approval a classification must without other upon Harrisburg. of difference ground rest some objections contends justifies the classification and *11 232 adopt optional plan, an a Assembly impose powers can on ment.”11 To
General carry local official to out certain state- city third-class elects a charter commission petitioners related actions and have not set a recommendation as to what to make forth a cause of action in this count. The particular form of that third government then is whether question to be answered city adopt. class If the charter should power give the Commonwealth has commission makes a recommendation that city powers of a third class not set optional plan adopted, is to be Optional City forth in the Third Class recommendation must be submitted to the (Charter Law) adopted by Charter Law adoption. adopted, If the inter- voters for issue, city. In it determining this nal are the form governed affairs then history necessary to review the of home government adopted that is as set forth Pennsylvania. rule in the Charter Law. Pennsylvania initially adopted When Partly passage because gave home rule in the General Charter Law and the desire of other Assembly determining sole discretion in municipalities and counties for classes grant whether to even home rule and to rule, hotly home home rule debat- which cities. The 1922Amendment to Art. became XV, 1874 Section Constitution of ed within Commission Woodside provided: Commission, and the 1964 both Scranton particular of any
Cities or cities class appointed study the need for revision of may given right be Constitution. From adopt their local charters and to exercise these Commissions came the call for the powers and authorities of local self- which, 1968 Constitutional Convention however, subject, governments, to such among things, study other was to restrictions, regulations limitations and Pennsylvania’s govern- structure of local imposed by legislature. time, During ments. factors that century In the half the 1922 previously militating against were home effect, only City Amendment was example, changed. rule had For even rule Philadelphia granted was home though there still was a reluctance Assembly municipality where a General rule, grant home General granted was local self under set forth in the Mu- governments forms of municipality charter that the drafted. nicipal Codes were insufficient address mu- though give still reluctant to all problems changes popu- of cities such as rule, nicipalities home the General Assem- lation, growth, urbanization and host a form of home rule for third bly enacted changes.12 social and economic right them “the giving class cities problems, the 1968 To address these adopt plans of power to one of several recommended Constitutional Convention optional and to exercise the charters10 IX, authority adopted local and the voters Article govern- self provides optional the Reference Manuals 10. The Charter Law for two Sources include Mayor-Council government: a Plan prepared forms of Conven- for the 1968 Constitutional A, French, §§ a Council 53 P.S. 41401-41421 and Gary See also E. Home Rule tion. Manager government, form of (1977). Pennsylvania, 81 Dick. L.Rev. §§ 41501-41522. Statutory Notes to Sec- 11. See Historical Law, 53 P.S. 41101. tion 101 of Charter *12 optional forms of provide Assembly shall which Constitution An municipalities. for all government
provides:
be
shall
government
of
optional form
right
have the
and
Municipalities shall
initiative,
by
the electors
presented to
adopt home rule
to frame and
power
municipali-
body of the
by
governing
the
or re-
Adoption, amendment
charters.
Adop-
Assembly.
by the General
by
ty
shall be
or
a home rule charter
peal of
optional form
Assembly
repeal of an
tion or
referendum.
General
by
a
referendum.13
procedure by
the
shall be
provide
government
shall
may be framed and
home rule charter
Constitution,
the
Under this section
pre-
repeal
amendment or
adoption,
its
required
pro-
to
Assembly was
the General
If the General
sented to the electors.
power
the
to
given
and cities were
vide
Assembly
provide,
not so
a home
does
to all mu-
optional plans applicable
adopt
framing
procedure
rule charter or a
then,
In effect
the Charter
nicipalities.
may
charter
presenting
and
a home rule
approved optional
Law became one
by initiative
presented
to the electors
by the Constitution.14
plans required
munici-
body of the
by
governing
the
A
has a home
pality. municipality which
case,
City
In
the
this
any
may
power
rule charter
exercise
charter
home rule
adopted
optional
an
by
function not denied
this
perform any
government.
Mayor-Council
form
Constitution, by its home rule charter or
A, 53
See
Plan
P.S.
Mayor-Council
Assembly
any
by the General
at
time.
the Char
§§ 41401-41421. Section 303 of
Law,
establishing
§
the
ter
53 P.S.
Amendment,
the 1922
the 1968
Unlike
cities,
plans for third class
optional charter
home rule to
guaranteed
Amendment
power
city
third class
the
gives
optional
municipality
“power
and
the
and
removed
its internal af
“organize
regulate
and
to
authority
self-government”
of local
lan-
alter,
fairs,
establish,
abolish
1922 Amendment.
and to
guage contained
the
offices,
and to
employments
positions
Convention also recom-
The Constitutional
IX,
functions,
duties
powers
as Article
adopted
mended what was
define the
term,
the
com
Section 3 of
Constitution
tenure and
thereof and fix their
plans
rule.
regarding optional
for home
Law
Nowhere
the Charter
pensation.”
provides:
section
plan
That
the Common
optional
give
does
authority to
power
delegate
to
wealth
Municipalities
right
shall have the
appoint
to
a Board
mayor
power
power
adopt optional
govern-
forms of
By giving to
provided by
ment as
law. The General Control.15
terms,
defining
Assembly did
those
13. To ensure that the General
Law,
rule,
provides
that:
pro-
Charter
not thwart home
the Constitution
Assembly
did not
vided that if
General
charter and
mayor
enforce the
shall
[t]he
of home rule for all local
authorize
form
city
general laws
and all
ordinances of
governments,
then the local
shall, annually, re-
applicable thereto. He
have.
decide the
that it would
could
public on the
and the
port to the council
passage
the Home Rule and
This led to the
year and on the condi-
previous
work of
Optional
Act.
Plans
govern-
city
requirements of the
tion and
time,
shall,
make
from time to
ment and
supra.
14. See ftnt.
for action
such recommendations
public inter-
deem in the
council as he
depart-
Law,
supervise all of
He shall
est.
the Charter
15. Section 411 of
city government, and shall
power
ments of
provides
"the executive
annual
require
department to make an
mayor.”
each
city
shall be exercised
Control,
appoint
under
Board of
the Amendment does not raise taxes
always
pursuant
because it
is done
to a
Assembly attempted
give
General
pro-
court order. Article
mayors
optional plan
of certain
third class
part:
vides
relevant
something
optional
cities
that is not in the
plan
endorsed
the citizens when it
The General
shall not dele-
commission,
IX,
adopted
optional plan.
gate
any special
private
Article
*13
association,
corporation
any power
to
the
Section of
Constitution
make, supervise
or interfere with
only gives
Assembly
to the General
the
municipal improvement,
proper-
money,
power
provide
optional
to
for
home rule
effects,
ty or
whether held
trust or
plans
governments
adopt
that
local
can
otherwise,
levy
perform
or to
taxes or
through a vote of its
Ignoring
electors.
any municipal
whatsoever.
change
whether the
form would have to
function
added.)
(Emphasis
voters,16
be submitted to the
if the General
Assembly
change
optional
wants to
argues
It
that the Board of Control is
give Mayor
form of
to
special
Act 91 which
commission and that
powers, it
change
council certain
must
1706-B(a),
§ 17-
amended Section
24 P.S.
optional
governs
form so that it
all munici- 1706-B(a),
gives
also
the Board of Control
palities
optional
that have chosen that
and duties conferred
law on
plan.
Board of Control under Sections
Code,
694 and 696 of the Public School
Harrisburg
Because the
District
School
6-693,
6-695,
§§
6-694 and
includ-
relief,
has made out a claim for
the Com-
ing
power
for-
taxing
Constitution
objection
monwealth’s
to
provides
bids. Section 693
that the Board
Count III is overruled.
may require
of Control
the elected school
taxes;
pro-
board to increase
Section 694
V.
levy
may
vides that the Board of Control
beyond
an additional tax above and
COUNT IV
Code;
level authorized
the School
DELEGATION OF THE
provides
Board of
TAXING POWER
may apply
pleas
to the common
Control
court
to mandamus the elected school
In
petition,
its
School
board to enact such tax or taxes or initiate
power
District claims that the shift in
to
proceedings to remove recalcitrant school
Control, appointed by
the Board of
neglect
duty pursu-
board members for
Mayor Harrisburg,
violates Article
Code,
ant to Section 318 of
School
Section 31 of the
Constitu-
3-318.
prohibiting
tion
the General
delegating
any special
contention,
to
commission
support
In
of its
the Harris-
levy
taxes.17 The
burg
Common-
School District directs our attention
preliminary objection
wealth in
addressing
constitutionality
its
con-
to a case
end,
levying
that in
tax-
tends
the Board of Control
of a non-elected school board
reports
previously addressed in our
and such other
of its work as he
17. This issue was
may deem desirable.
December
2000 decision on the Harris-
burg
request
injunctive
School District’s
provides
changes
16. 53 Pa.C.S. 2941
relief.
gov-
optional plan
a home rule charter or
ultimately
presented
be
ernment shall
electors.
delegated
non-elective
Phila
to a
v. School District
es. Wilson
(1937),
Pa.
our board.
delphia, 828
lated the
of our
COUNT V
legislative
by
chosen
giving
body
people
power
tax.
REMOVAL FROM OFFICE
however,
Commonwealth,
argues
The
complaint,
In the last count of their
point
that a case more on
Moore v.
is
Harrisburg School District claims
Pittsburgh,
School District
338 Pa.
VI, Sec
Amendment violates Article
(1940),
taxpayers sought
The school directors distressed offices, except their resign trict not I, joins II Judge SMITH Counts spe- the unanimous consent of majority opinion joins and III of the board of control and shall continue cial Judge and in as to Counts IV V office, office for unless removed from dissenting concurring KELLEY’S duty ... the court of com- neglect opinion. county in which such pleas mon largest part in the area is district or the KELLEY, Judge, Concurring located, unless of such directors Dissenting. position are elected to another not com- by the I concur in the result reached school di- patible position with the respect majority with to the Common- appointed any position or are rector objections to Counts requirement that wealth’s for which there is appointee I, hold not elective II III in the said shall *15 office, However, for the remainder of their terms I petition for review. District’s operated time district is during the the majority’s resolution disagree with the by special the board of control and shall respect pre- Commonwealth’s delegated by to them perform any duties in objections to Counts IV and V liminary assumption of control of dis- it. petition the School District’s special by district the tressed school for review. in way of control shall no interfere board IV, majority the respect With to Count or reelection of regular with the election 91, provisions that the of Act which finds school directors for the district. 1706-B(a), § 24 P.S. 17- amended Section Amendment does not re- Because the 1706-B(a), provisions of do not violate the members of the school board move the III, Article Section 31 office, prelimi- the Commonwealth’s 1706-B(a) provides Constitution.1 Section
nary objection to Count V is sustained. power the part, “[e]xcept in for pertinent foregoing based on the dis- Accordingly, taxes, the of control levy to board cussion, preliminary the Commonwealth’s all and duties con exercise other I, II and III are objections to Counts school di by ferred law on the board of preliminary objections to overruled and its powers and duties con rectors and the Counts IV and V are sustained. control special on a board of by ferred law 693, and 695 the [of under sections 694 ORDER § 24 17- P.S. Code]...” Public School June, 2001, NOW, day 22nd of AND this 1706-B(a). by the objections filed the states, pertinent 693 turn. Section to of Counts part: I, petition III the for review filed II and states, III, any perform mu pertinent power levy ... taxes or to
1. Article Assembly Const. art. shall not nicipal whatever...” Pa. part, that General function “[t]he delegate any special commission ... to §
237 special control upon the board control as- confer the board special When the school power compel control of a distressed school dis- the to board of sumes taxes, trict, power hereby levy they it shall to and remove have and is directors rights, statutory all on tax rates that authorized to exercise limitations provisions, powers, privileges, prerogatives imposed. which may be Such imposed law on duties or conferred with the special the board of control vest tax, of the dis- board school directors impose or increase a discretion district, tressed and the board of school authority compel imposition power no to act III, directors shall have increase, run afoul of Article clearly approval special without the board 31. See v. School District Section Wilson of control... board of con- 225, 241-242, [T]he Philadelphia, Pa. may require trol the board (“[T]he [of (1937) purpose main A. directors]: [31], Article was to correct the Section
recognized taking economic mistake of (2) power regular, legis- from the away fiscal To increase tax levies in such body it in hands of putting lative permit- amounts times and at such as is commission, appointive organized an ted the act to this an amend- is special purposes subject .. and not ment. Here effect of people. control of 6-693. delegation by General 6-694, Finally, in the to vest school board the unlimited pertinent part: provides, expenses, increasing plus operation When the of a distressed levy amount sufficient right tax school district has been assumed expenditures incurred. to cover control, special board of the board of this, this prohibits The Constitution *16 shall, school directors of the district give must effect to the mandate of its court upon the the recommendation and with framers.”) (citing Allegheny Tranter v. control, approval special of the board of 65, Pa. A. 289 County Authority, 316 173 levy an additional tax or taxes sufficient (1934).). Ridge, v. 762 A.2d Warren Cf. liquidate dis- the indebtedness of the (Pa.Cmwlth.2000). 1126 trict. .. limi- [Notwithstanding present law, imposed by tations on tax rates V, respect majority the With to Count such limitations shall not to dis- apply the of 1706- provisions finds that Section tressed school districts. B(a), of incorporating Sections 694 and 695 Thus, Code, provisions Public do the although foregoing the the not violate VI, purport power the taxes of Article levy provisions exclude Section control, they a board also As noted special from of Constitution.2 VI, public provides, pertinent were elected officers 2. Article Section 7 in school directors adopted. In part, that civil officers hold their ... when the Constitution was "[a]ll shall system, they a neces- on condition that behave the absence the existence offices the office, framers, sarily be be in the minds it would themselves well while in and shall they express tenns on in of- held that came within removed conviction misbehavior VI, [7], any that subse- act fice or of infamous crime..Pa. article section Const. 6, conflicting provision quently passed, providing § method applies to the in- art. This removal, legally prohibited. But we elected of the board of school was stant members of must remember See, legislation the earlier e.g., re Recall that directors. Petition to Reese, 123, 1162, 114, procedure in manner of 542 665 A.2d 1166- furnished different Pa. cases, it, (1995) ("[I]t modifying acts of assem- that such 1167 must remembered 238 control,
above,
1706-B(a)
perti-
special
board of
and the mem
provides
Section
part,
“[e]xcept
power
for the
nent
of the board of school directors are
bers
taxes,
levy
the board of control
exer-
prohibited
resigning
their offices.
powers
cise all other
and duties conferred
statutory
transferring
Such a
scheme
board
directors and
law on the
of school
directors,
powers of the board of school
by law on
and duties conferred
except
making
body impotent
to act
at
special
board of control under sections
express
special
direction of the
board
693, 694 and 695
the Public School
[of
control,
imposing upon
the board of
17-1706-B(a).
P.S.
Code]..24
school directors a condition of “involun
”,
an im
tary
clearly
servitude
constitutes
provides,
pertinent part,
permissible
from office”3 under
“removal
special
board of control
“[w]hen
VI,
provisions
of Article
Section 7 of
control of a distressed school dis-
assumes
See,
e.g.,
Constitution.
trict,
power
hereby
it shall have
and is
Marinelli,
v.
Kelly
Commonwealth ex rel.
rights, pow-
authorized to exercise all
(1938);
ers,
and duties im- 330 Pa.
terpretation of the clause should be
guided by principles apply the same interpretation equal protec- of federal
tion.
Id. at 756 A.2d 1105. at principles to case
Applying these hand, Petitioner, equal protec- no Anthony JACKSON, at I find denial of tion, no of Article and thus violation v. beyond dispute 32. It is the Gen- BOARD PENNSYLVANIA eral the Education enacted AND OF PROBATION Empowerment response Act in a sig- PAROLE, Respondent. many nificant pattern among failure public the Commonwealth’s schools. Pennsylvania. Court of EEA, challenged provision of the the Act Amendment, Briefs provides April on 2001. specialized Submitted remedy Dis- June Decided trict specifically which is tailored both problems the educational district particular
and to form City It mod- the district. programs
eled after other states results, promising
have shown and is
frankly designated pilot program. as a I represents
Because believe Act 91 legislative response
rational a serious consistency providing
erosion “a of our public
thorough system and efficient to serve the needs the Com
education *18 Ill,
monwealth,” Const., I Pa Art. preliminary objections
would sustain Further, I I II. agree
Counts that, IX, §
respondents “Pa. art. Const. terms, only requires ref its own voter govern form optional
erendum when pro adopted repealed....
ment is to a speaks only
vision thus wholesale municipal not to
change government,