In re Appeal of Alfie COATS.
Superior Court of Pennsylvania.
Submitted Aug. 18, 2003. Filed April 19, 2004.
254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264
¶ 30 Appellant failed to timely move to modify his sentence either in post-sentence motions or in his PCRA petition. Also, appellant failed to include a statement of reasons for allоwance of appeal in his brief to this Court. Accordingly, appellant waived the underlying issue.
¶ 31 Similar to appellant‘s weight of the evidence claim, however, his claim of ineffective assistance of counsel for failing to file a motion to modify his sentence is not waived, but must be deferred until collateral review under the PCRA. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). Accordingly, we dismiss this claim without prejudice.
CONCLUSION
¶ 32 Based upon the above analysis, we affirm appellant‘s judgment of sentence.
¶ 33 Judgment of sentence AFFIRMED.
¶ 1 Alfie Coats appeals pro se from the February 6, 2003 Order denying and dismissing his appeal from the orphans’ court‘s refusal to issue him a marriage license without his personal appearance.1
¶ 2 Appellant is an indigent prisoner at the State Correctional Institution at Mahanoy (SCI Mahanoy) in Schuylkill County. When his fiancée went to the office of the clerk оf the orphans’ court of Schuylkill County to obtain a marriage license, the clerk would not accept an application because appellant was unable to personally appear at the clerk‘s office. Appellant and his fiancée appealed that determination.
¶ 3 The trial court issued a citation to the clerk of the orphans’ court to show cause why appellant should not be allowed to apply for a marriage license other than by his personal appearance in the clerk‘s office. Record No. 101/335. At a February 4, 2003 hearing it was indicated the clerk was acting in compliance with
Wendy Hess, Baltimore, MD., and David L. Glassman, Lewisburg, for Public Justice, Amicus Curiae.
David C. Cleaver, Chambersburg, for Register of Wills, appellee.
Before: FORD ELLIOTT, BOWES & TAMILIA, JJ.
Can a clerk of the orphans’ court division of a court of common pleas refuse to travel to a prison within its jurisdiction to interview a marriage license inmate applicant lacking funds to pay the county sheriff for transport to the county courthouse for the interview?
Appellant‘s brief at 4.
¶ 4 Specifically, appellant (and amici) argues the fundamental constitutional right to marry extends to prisoners. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). He asserts the Schuylkill County Clerk of the Orphans’ Court violated his fundamental right by refusing to issue a marriage license to his fiancée and him absent his personal appearance. He states that neither he nor his fiancée can afford to pay the sheriff to transport him to the clerk‘s office and argues that county officials may not erect economic barriers to such fundamental rights. Further, he contends the county must provide the orphans’ court clerk with all necessary accommodations, goods and services, (see
¶ 5 The trial court agrees that
¶ 6 We are beyond the underlying consideration as to whether prisoners have a fundamental constitutional right to marry—they do. Turner, supra. The facts and legal ramifications in Turner are distinguishable from those involved in this case, however, and the factual situation here is not in anyway comparable to Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) (blood tests for paternity actions), Zablocki, (denial of marriage license if arrears exists on child support). Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (fees for divorces), or Loving, (interracial marriages). The issue not addressed by Turner is whether under the totality of all circumstances involved in opеrating a prison, court offices and law enforcement agencies, that right can be enforced irrespective of the cost to the ancillary services which have no statutory responsibility to assure that the prisoner and his/her partner get to the marriage license bureau door. These functions of the court, administrative, prison and law enforcement entities (i.e. sheriffs) have no legal duty to assure a prisoner obtains a marriage license. For this Court to direct one of those entities to engage in an activity which would entail unknown expenditures of money, manpower and security concerns and which would divert funds and resources beyond their statutory mandate and in all likelihood, beyond their present budgetаry resources at a time when all levels of government are on the verge of bankruptcy is inappropriate. The problem, if there is one, should not be resolved by the courts, as at best we would be called to manage a diverse and desperate number of entities involving different locations, a multiplicity of prisons in a wide array of counties and prisoners of different financial means some of whom could underwrite their own costs while others would be required to proceed in forma pauperis. Any solution we would decree the trial court to apply only could be directed to one case, in one prison, in one county, as to one marriage license office. This matter cannot be resolved properly in such a fashion. The only entity which can mandate a uniform statewide proceeding and remedy is the legislature. If it is to be a court-mandated solution, the remedy must flow from the power of the Pennsylvania Supreme Court as monitor of the Unified Judiciary to make a uniform and binding rule for the implementation of an acceptable procedure in the Orphans’ Courts of Pennsylvania. Of course, the Department of Corrections could likewise, as the custodian of the prisoners, become involved in a resolution of this problem statewide by a change in policy.
¶ 7 We also recognize Pennsylvania statutory law requires parties to obtain a marriage license before marrying,
Mandamus is an extraordinary writ that will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other appropriate and adequate remedy. A decision to deny mandamus is subject
¶ 8 We cannot find the trial court abused its discretion in denying appellant the requested relief since we are unable to find the clerk owes appellant a duty to implement video conferencing technology or to travel to area prisons to conduct examinations. The orphans’ court clerk simply performs its ministerial duty in accordance with the statutory mandate that requires applicants to appear in person. There is nothing express or implied in the marriage license statutes that requires the clerk of the orphans’ сourt to visit prisons for the purpose of issuing marriage licenses. Imposition by this Court of a duty on the county to somehow get a prisoner to the marriage license office if he/she desires to marry could open the door for persons of any disability (real or imagined), including those bedridden, institutionalized and/or unable to travel, to demand similar treatment. Surely, Turner, supra, never intended that its ruling in 1987 was to be extrapolated to provide prisoners to be accommodated regardless of cost or security problems to comply with the ministerial requirements of obtaining a marriage license. As a class action to review the constitutional rights of prisoners to marry, Turner simply declared that prisoners retain the right to marry and can not bе denied that right incident to security concerns due to prison administrative policy. In such a case the court had the power to declare the existence of a constitutional right whereas here, the court lacked the power to declare which of several governmental entities with no legislative mandate, had the duty to perform a service. As such, the trial court in this matter correctly reviewed the evidence against the standard required for mandamus actions and found it had no authority to act.
¶ 9 The office of the clerk of the orphans’ court is not sui juris but is dependent on county and legislative provisions to implement its function. This statutory mandate provides as follows:
42 Pa.C.S.A. § 2774. Office of the clerk of the orphans’ court division (a) General rule.—There shall be an office of the сlerk of the orphans’ court division in each county of this Commonwealth, which shall be supervised by the clerk of the orphans’ court division of the county who shall, either personally, by deputy, or by other duly authorized employees or agents of the office, exercise the powers, and perform the duties by law vested in and imposed upon the clerk of the orphans’ court division or the office of the clerk of the orphans’ court division.
(b) Facilities and services.—The office of the clerk of the orphans’ court division shall be provided with all necessary accommodations, goods and services pursuant to section 3722 (relating to general facilities and services furnished by county).
Id. (emphasis supplied).
¶ 10 The powers and duties of the office of the clerk of the orphans’ court division are detailed in
¶ 11 As a further limitation to the power of the clerk of orphans’ court, indeed to the power of the trial court to provide staff, facilities and services deemed necessary, legislation clearly and specifically delineates the interrelationship and responsibility vis a vis the courts and local government financial responsibility as to expenditures for court facilities and services. See
¶ 12 A careful reading of these empowering statutory provisions clearly leads to the following conclusions:
- Orphans’ court is solely responsible for obtaining the authenticated marriage license and fulfilling the legislation requirement or its equivalent of a personal interview with an applicant for a marriage license (prisoner or otherwise).
Orphans’ court cannot order sheriffs deputy or prison staff to assume the duty and expense of transporting prisoners to the orphans’ court clerk to interview for a marriage license. - Any additional staff or expense incurred by orphans’ court in fulfilling this duty can only be accomplished, in cooperation and by agreement of the political subdivision which would be required to furnish the additional staff or service.
§ 3727, Restriction in compelling local action, § 3726, Manner of expenditure of local funds. - The Administrative office of the Pennsylvania Courts has, the power and authority to provide additional resources to the orphans’ court, which are not supplied by
§ 3722 (relating to general facilities and services furnished by the county) such as video conferencing, which is akin to the computer network recently implemented for the judiciary. - The Administrative Office of the Pennsylvania courts as well as the Administrator of the Common Pleas Courts has the authority to deputize prison personnel for the purpose of conducting onsite
§ 1306 marriage license interviews, alternatively district justices or senior district justices may also be empowered for this purpose by the court administrator of the county. - As a statewide solution and establishing a uniform practice, the orphans’ court rules promulgated by the Supreme Court can create a practice mandated for use in all judicial districts.
- Finally, the legislature should be urged to consider this issue and to amend the statute to facilitate the issuance of marriage licenses under this impediment as well as other disabilities which might exist.
¶ 13 While we acknowledge action should be taken to allow appellant to exercise his fundamental right to marry, we agree with the trial court and conclude we have no basis upon which to compel the clerk of the orphans’ court in Schuylkill County to take the requested action.11 In the absence of special treatment of any other disablеd class who, like appellant, cannot appear personally before the clerk of the orphans’ court to obtain a marriage license, we perceive no due process or equal protection violation under the facts of this case.
¶ 14 The search for a solution requires that we remand this matter to the trial court for an evidentiary hearing to determine the least costly method to achieve the necessary face to face interview. Con-
¶ 15 Order vacated; case remanded for a hearing and entry of an Order in conformity with this Opinion within 60 days of its filing.12
¶ 16 Jurisdiction relinquished.
¶ 17 BOWES, J., files a Dissenting Opinion.
In re Appeal of Alfie COATS.
DISSENTING OPINION BY BOWES, J.:
¶ 1 I respectfully dissent. Observing that we are an error-correcting court, I cannot agree with the majority‘s decision to vacate the trial court‘s order and remand for a second evidentiary hearing while expressly sustaining the trial court‘s legal reasoning.
¶ 2 I would hold that the trial court erred in finding that the Schuylkill County Clerk of the Orphan‘s Court (the “Clerk“) was not required to make an accommodation due to Appellant‘s inability to personally appear in the Clerk‘s office and apply for a marriage license. I believe the Clerk was obliged to provide an alternative method for Appellant to exercise his fundamental, constitutional right to marry, and consequently, the Clerk‘s failure to accommodate Appellant was unconstitutional. I would therefore reverse.
¶ 3 Appellant argues that the Clerk‘s strict application of
tion of the law is incorrect and that office‘s refusal to provide an adequate alternative for prisoners incarcerated in Schuylkill County to secure marriage licenses impermissibly infringes on their constitutional rights.
¶ 4 At the outset, I disagree with the majority‘s conclusion that no constitutional violations arise under the facts of this case.14 It is settled that marriage is a fundamental right under both the United States Constitution and the Pennsylvania Constitution. Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (right to marry is part of fundamental right of privacy implicit in Fourteenth Amendment‘s due process clause); Fabio v. Civil Service Commission of City of Philadelphia, 489 Pa. 309, 414 A.2d 82 (1980) (constitutional right to privacy encompasses activities relating to marriage). It is also clear that the manner in which the Clerk has elected to perform its ministerial duties encroaches upon Appellant‘s right to marry. Cf. Finberg v. Sullivan, 634 F.2d 50 (3d Cir.1980) (recognizing that county officials can be defendants to constitutional challenge although their duties were entirely ministerial). “The inquiry is not on the nature of an official‘s duties but into the effect of the official‘s performance of his duties on the plaintiff‘s rights.” Id. at 54. Unlike the majority, I would not artificially impute the duty to accommodate Appellant upon the Pennsylvania Department of Corrections or the local sheriff. The legislature designated the task of regulating marriage licenses to the Orphans’ Court, see
¶ 5 Furthermore, I do not believe that the deferential standard employed by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), is applicable to the case sub judice. In Turner, the Supreme Cоurt held that a Missouri prison regulation barring prisoners from marriage absent a compelling reason to do so was constitutionally infirm. The Court fashioned the following test to determine the regulation‘s constitutional fitness: “[W]hen
¶ 6 Instead, this matter demands strict scrutiny. Pursuant to the due process guarantees in the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Pennsylvania Constitution, strict scrutiny applies to the denial of the fundamental right to marry. Nixon v. Commonwealth, 576 Pa. 385, 400, 839 A.2d 277, 287 (2003) (“Where laws infringe upon certain rights considered fundamental, such as the right to privacy, the right to marry, and the right to procreate, courts apply a strict scrutiny test.“). This standard, referred to as a substantive due process analysis, utilizes a means-ends test to scrutinize the relationship between the fundamental right and the interest sought to be achieved. Id. When applying strict scrutiny, the courts will uphold an interference with the free exercise of a fundamental right only if it is necessary to promote a compelling or overriding state interest, and if a compelling interest exists, the means necessary to effectuate that interest must be narrowly tailored to achieve the objective. Khan v. State Board of Auctioneer Examiners, 577 Pa. 166, 842 A.2d 936, 942-43 (2004). Laws restricting fundamental rights rarely survive strict scrutiny. See Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992).
¶ 7 Considering section 1306 under the first prong of the standard, it is well established that the state has a compelling interest in regulating marriages and requiring applicants to obtain marriage licenses. See Zablocki, supra at 386, 98 S.Ct. 673 (“reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimatеly be imposed.“). The legislature‘s mandate for a marriage applicant to appear personally for an oath or affirmation is constitutionally fit on its face. However, I believe the Clerk‘s interpretation of the statute is incorrect, and its chosen method of achieving the state‘s objective is not sufficiently narrow to allow prisoners to exercise their fundamental right to marry.
¶ 8 Contrary to the Clerk‘s reading of the statute, section 1306 does not require a marriage license applicant to appear at the courthouse in person nor does it preclude qualified individuals outside of the Clerk‘s office from administering the oath and examination. Consequently, the Clerk‘s strict construction of the persоnal appearance requirement, which demands a personal appearance at the Schuylkill County Courthouse for an oath and examination performed by a representative of the Clerk‘s office, is improper, and in this case, it results in an unconstitutional divestiture of Appellant‘s fundamental right to marry.
¶ 9 In support of its interpretation of the personal appearance requirement, the Clerk contends that it has inadequate staff to send a representative to each of the four prisons within Schuylkill County to conduct the required interviews upon the demand of the prisoner-applicants, and that
¶ 10 As Appellant and amici curiae suggest, there are several low-cost alternatives that would accommodate Appellant‘s rights. First, the Clerk‘s office could schedule periodic trips to prisons within Schuylkill County to conduct examinations and issue marriage licenses two or three times a year. Since the examinations would be performed at predetermined intervals rather than at the prisoners’ request, the cost associated with this service would be minimal. Similarly, the Clerk could deputize a corrections employee at each of the four institutions and have them administer the oath and examination. See Toms v. Taft, 338 F.3d 519 (6th Cir.2003) (county probate court deputized corrections employee to administer oath and issue marriage license). Alternatively, as section 1306 does not limit who may conduct the sworn examination, the Clerk could accept affidavits that were sworn, attested, and notarized at the prison and then mailed to the Clerk‘s office. All of these viable accommodations would allow prisoners within Schuylkill County to exercise their rights without imposing significant costs upon the Clerk or the county and its taxpayers. The existence of these affordable alternatives militates against a finding that the Clerk‘s reading of the law is narrowly tailored to achieve the state‘s objective. Accordingly, I would find that the Schuylkill County Clerk of Orphans’ Court policy is unconstitutional.
¶ 11 The majority posits that the enumerated powers and duties of the Clerk of the Orphans’ Court do not include providing the suggested accommodations,16 and consequently, it оpines that the Clerk cannot be compelled to accommodate Appellant. I believe this argument fails to grasp the nature of the issue. It is not a matter of who is best suited to provide Appellant with access to a marriage license; rather, the question is what entity is precluding Appellant from obtaining a marriage license and exercising his right to marry. Under the facts of this case, that entity is the Clerk of the Orphans’ Court in Schuylkill County.
¶ 12 Although the Clerk does not have a statutory mandate to provide a specific reasonable accommodation to prisoners seeking a marriage license, the legislature‘s omission does not negate the Clerk‘s responsibility as a state actor to perform its ministerial dutiеs without treading upon the fundamental rights of others. See Finberg, supra. Since
¶ 13 Accordingly, I dissent.
Notes
Each of the applicants for a marriage license shall appear in person and shall be examined under oath or affirmation as to:
(1) The legality of the contemplated marriage.
(2) Any prior marriage or marriages and its or their dissolution.
(3) The restrictions set forth in section 1304 (relating to restrictions on issuance of license).
(4) All the information required tо be furnished on the application for license as prepared and approved by the department.
(Emphasis supplied.)§ 1306. Oral examination
(1) The legality of the contemplated marriage.
(2) Any prior marriage or marriages and its or their dissolution.
(3) The restrictions set forth in section 1304 (relating to restrictions on issuance of license).
(4) All the information required to be furnished on the application for license as prepared and approvеd by the department.