STROUP v. Kapleau

& Fors- Jr., Jack, T. Forssell, KooKogey George for sell, appellant. Attorney, Assistant District Smith,

Bruce L. Commonwealth, appellee.

Opinion Pm 1978: November Cubiam, the order Court affirming The order Superior affirmed. the Court of Pleas is Common Kapleau. Appellants, Stroup et al., v. Lindsey. Appellants, Stroup et al., v. Appellants, McNair. Stroup et al., v. Appellants,

Stroup Schonek. et al., Argued O. Before Jones, J., 2, 1972. October Eagen, JJ. Nix and Pomeroy, Manderino, Roberts, O’Brien, Cooper, him Wm. A. E. and Kramer, 2d, Bruce with appellants. for Hussie, Edward C. Deputy Attorney J. Beaser,

Lawrence and General, Attorney Kapleau, ap- for Creamer, General, J. Shane pellee. Special Attorney, E. him Law- with Kohn,

Harold Deputy Attorney J. Beaser, rence J. and General, Attorney Lindsey, for Creamer, Mc- General, Shane appellees. Schonek, Nair and & Biddle Drinker, Dusen, Jr., II. Van Lewis Philadelphia curiae. amicus Judicial Council, Beath, December Me. Justice Opinion Manderino, 1973: Assembly of of the General 1.55th

After the Session Pennsylvania adjourned sine die the Commonwealth following appointments to on December 28, 1971, the Commonwealth made the Governor of office were Shapp. Appellee, Pennsylvania, J. Richard Milton appointed Lindsey, a member and chairman W. was Pennsylvania and Parole; Board of Probation appointed Kapleau, appellee, as a mem- Harold E. was Marketing Pennsylvania Milk ber and chairman of appointed appellee, P. as a Earl was Board; McNair, Equalization Tax member of the State Board of Penn- sylvania; appellee, ap- E. Wilbur Schonek, pointed Pennsylvania as a member of Harness Rac- ing Appellees, Kapleau, Lindsey, Commission. and Mc- appointed Appellee, December were on 1971. Nair, 29, appointed January Schonek was 1972. 4, appellants, Stanley Stroup, G. Senators Rich Tilghman, C. and Richard A. ard members Frame, of Pennsylvania, the the Senate of Commonwealth of brought quo in actions warranto the Commonwealth challenging right appellees Court to hold appointed offices their without the advice and consent pursuant 8(b), of the Senate to article section Pennsylvania Preliminary objections Constitution. appellees appellants’ filed were sustained and Stroup complaints were dismissed. v. 5 McNair, (1972); Stroup 244 Ct. Commonwealth v. Schonek, (1972); Stroup Ct. 257 Lindsey, Pa. Commonwealth v. (1972) Stroup Kap Ct. 338 5 Pa. Commonwealth ; v. (1972). Ct. 362 5 Pa. Commonwealth leau, The cases appeals for the consolidated were which followed to this Court.

The first issue raised is whether the had appellants to commence this action standing quo warranto. Court held that they Commonwealth did and we agree. An action warranto can be “[q]uo instituted to de termine the title to public office only by Attorney the District or a private individual General, Attorney who has special a interest as from the distinguished interest of the public generally.” Commonwealth ex rel. Martin, 426 Pa. Specter 232 A. 2d 102, 108, (1967) (emphasis Commonwealth ex added). rel. Schermer v. 311 Pa. A. 878 Franek, 341, 166 (1933), this Court stated: “To invoke issuance aof writ of quo warranto relator, must show in him therefore, self an interest in the . . . controversy. He must possess some personal peculiar, interest aside from his general interest as member of the at public.” Id. 166 A. at 879 (emphasis Article added). IY, 8(a), the Pennsylvania Constitution provides: “The Governor shall appoint Attorney General, Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint. The appoint ment of the Attorney General, Superintendent Public Instruction and of such other officers as may specified shall by law, be subject to the consent of two-thirds the members elected to the Senate.” (Em phasis added.)

Under the above constitutional provision, each mem- ber of the Senate has an individual right to confirm or reject gubernatorial certain appointments. Each has an Senator interest in such appointments aside from that Senator’s interest as a member of the general public. We, therefore, conclude that the appellants all this members of the case, Senate of the Common- wealth had Pennsylvania, standing to commence this in quo action warranto.

The issue before second us concerns the circum- which the stances under Governor may exercise his 8(b), authority section IV, article under constitutional not appointments do temporary reeess make Pennsylvania. the Senate require confirmation not did Governor appellants that since contend of- appointments those permanent attempt make prior to the Senate’s become vacant had fices which tem- thereafter, adjournment, make, not he could final appointments. porary recess adjournment General the 155th final Prior to the the offices three of Assembly December 28, they in the sense case were vacant in this involved ap- permanent gubernatorial occupied not were appellees, pointees. to which the offices were These appointed, and Kapleau, Lindsey, were McNair, part appointments are involved these appointment Appellee was to Schonek’s our discussion. prior to the Senate’s not vacant an office which was any adjournment. final Governor did not submit appointment permanent the three of- nominees adjournment. prior final to the Senate’s fices vacant requires appointment permanent the submission of A under the second sentence of a nominee to the Senate 8(b). After the Senate’s final ad- article section IV, temporary appointments journment, the Governor made offices. Such under the first to these 8(b), require section do IV, sentence of article nominees to the Senate. The submission of relevant 8(b), provides: part “(b) of article Ex- may cept provided or hereafter be now otherwise appellate judges, in this Constitution as to and other during may, Governor] recess of [the the Senate, happening appoints offices fill vacancies to which he expiring by granting commissions at the end of its ses- happening in fill vacancies sion and office of Audi- any General or State Treasurer or in tor other elective to fill. If happens office he is authorized during (except of the Senate session as otherwise 176 nominate Constitution) in this he shall to

provided its final adjournment.” before Senate, The Constitution Pennsylvania above section relating appoint and another section to gubernatorial ments to vacancies have been before Court judicial Commonwealth, ex rel. In prior occasions. Lafean Pa. 104 A. 494 Snyder, 261 decided over 57, (1918), a half it had century was held that the Governor ago, re to make authority temporary constitutional even though cess the office was vacant appointment, prior to the recess of the Senate began at in Rite time final adjournment. its More recently, nour v. 272 Peirce, A. in an 2d 900 (1971), La- alternate the rationale of ground decision, jean See Creamer v. Twelve Common was followed. Pleas 443 Pa. 281 A. Judges, n.2 n.2, 2d 57, 60, Ritenour, In (1971). recess temporary appointment to office upheld which was vacant prior to final Senate’s adjournment. appellants have not questioned rationale or of either holdings Lafean or Ritenour. They point out, that however, both and Ritenour, the Governor had submitted a nominee prior the Senate’s final ad journment. Lafean, the Senate rejected the nominee and Ritenour the Senate failed to act; whereas in the cases before us, Governor did not submit nominees to the Senate prior to its final adjournment. The lack any nominations, according the appellants, should preclude temporary recess after appointments, the Sen ate’s final to offices adjournment, which were vacant final adjournment. to the prior appellants argue the words “shall nomi- nate” the second sentence article IV, section 8(b), mandatory are it therefore follows that the Gover- nor’s failure nominate before final adjournment pre- a temporary appointment cludes under the first of article sentence 8(b). While it is gen- is erally in a constitution the word “shall” true, mandatory provision, follow interpreted it does as a sen- nominee under the second of a that non-submission exercising precludes from the author- the Governor tence granted ity separately sentence which under the first granted authority specific on the no limitation contains ap- temporary except recess limit of the to the time say 8(b), pointment. that does Article section IV, a second sentence is of a nominee under the submission authority granted in prerequisite the exercise the pro- a have to read such We would the first sentence. the into Constitution. vision legislative appellants, of the branch as members judicial government, asked the branch to declare have be in executive branch to violation of the an act challenges face In the of constitutional Constitution. legislative frequently the said acts of have we Assembly, legislative General in the branch, the power supreme legislative (article is vested the II, presumed 1), be are to constitutional section unless judicial clearly be shown to otherwise. The branch apply restraint and that same that same in must test challenges constitutional face of to the the executive the executive branch, acts of in whom Governor, supreme power (article executive is vested IV, sec- 1). presumed Such acts must be tion constitutional clearly to be otherwise. In unless shown Lafean, this to read into article 8(b), any Court refused explicit authority limitation on Governor’s to make appointments. temporary recess The rationale La- applicable to this case. is fean rejected the Governor’s Lafean, nominee by was person given The same the Senate. tempo then appointment. rary argument recess was made that temporary could make a if appoint the Governor recess rejected person already ment of a the Senate, the provision requiring constitutional the consent of meaningless. re Lafean, nonetheless, would any fused to read limitation into constitutional au thority temporary ap of the Governor to make pointments, saying provi “[t]he that: constitutional places express upon sion no limitation the choice of the appointing in Governor to fill vacancies.” 261 at rejected argument 104 A. at 495. that: Lafean people, adopting provision “the the constitutional question [placed] implied upon power limitation of the Governor to fill vacancies reason also hav ing provided regular for terms of unexpired require approval or service, should terms, distinguished of the Senate.” Id. between the authority temporary Governor’s to fill for vacancies period authority permanently and his fill vacancies unexpvred temporary appoint for a or term. The full authority require ment does not the consent of the Sen any ate under because there no circumstances, is such provision authority appoint the Constitution. The permanently a full or the balance of an term, unex pired authority the requiring is executive term, appears Senate consent. said: “It thus the Gov Lefean vacancy temporarily ernor is authorized to fill a . . . but unexpired for a full not or term. . . .” Id. concluded temporary that the Governor’s Lafean

appointment authority separate was and distinct from permanent appointment authority. his The former does require Senate consent. The latter does. Lafean rejection person held that the thus Senate’s of a for permanent appointment any did not have effect on the authority temporary appoint- Governor’s to make a ment. persuasive presented

No reason has been as a basis rejecting the rationale arguments for of The Lafean. presented presented the are same as now those and re jected in 1918. Since that time, article IV, section 8 with changed the wording amended been has (b), author the that Governor’s changes in the no indication the limited was appointments temporary make to ity to permanent subjects provision amendment In the 1967 fact, confirmation. ra the to strengthen appears 8(b), article appoint authority executive tionale of Lafean—the from the separate distinct and is appointees temporary The appointees. permanent appoint authority have the the Governor “shall that Constitution said in offices may happen, all vacancies that power to fill recess the of the Sen during he appoint, may to which added.) . . . .” (Emphasis Commissions ate, by granting comparable the wording 1967 amendment, In the the recess “may, during is that the Governor provision happening the vacancies offices Senate, of fill . . Commissions . .” by granting which he appoints, (Emphasis added.) the 1874 and the provision

The reword wording amendment are almost if the 1967 identical ing under are read the omitting provisions during two words, the Senate. The key change the recess to be appears during the relocation of recess phrase, Senate. provision, phrase arguably all vacancies that phrase, modified may happen. specifically pointed The case out that possibil read phrases together two ity. arguably meant happen had to during recess in order to exercise the Governor his authority to make argument That appointments. has temporary been con if not weakened, siderably destroyed, by the 1967 phrase, amendment. during the Sen and now can only relocated ate, modify the words, The may. phrase cannot read Governor] [the vacancies words, in modifying happening offices. the recess during phrase, The Senate, now only may the Governor us when temporarily tells appoint— change occur. This thus must not when the in the execu Lafean, the conclusion strengthens make is dis temporary appointments authority tive make perma his separate authority tinct and from Senate confirmation. nent requiring appointments raised concerning issue here execu- identical was one is- appointment authority tive’s recess Common this Court in Creamer Twelve sues before al- Pleas 443 Pa. A. 2d 57 (1971), Judges, but related section of the Pennsyl- a different though was involved. vania Constitution In the issue arose under article section Creamer, Y, for the provides recess 13(b), appointments the judicial members of branch of government. Four of the judicial teen members branch had tempo received In rary appointments. four the circum cases, the same as before stances were those us in this appeal. The Governor had not submitted any nominees to the though even vacancies existed while the in session. Senate was Recess appointments were then final following made Senate’s adjournment. These were held to be valid evenly divided Opinion court. justice did not (One participate.) op Support the Per (opinion of Curiam Order Justice now Chief Justice and Justice Jones, Jones, Pomeroy Eagen in which Justice joined) referred to and “current “wisdom” validity” of Lafean, read refusing any implied limitation upon the Gov authority ernor’s after the make, final adjournment Senate, temporary judicial appointments. The Opinion Supporting Opposing Part in Part Announced in the Per Results Curiam Order (opin Justice Bell ion of Chief in which Juctice O’Brien Justice Roberts joined) did consider appli cable to article section Y, 13(b), because, the view to that of the subscribers opinion, wording of article 13(b), materially Y, different from the

181 opinion 8(b). said: That wording section IV, of article important in lan very difference and material “The 13(b)] lan the . . from . guage [section V, Article distinguishes these guage 8, Section IV, in Article upon Pennsylvania prior cases also the Articles provisions they rely, under decided which were which present such Constitution, IV of the to Article similar Snyder, Pa. 57, 261 ex rel. Commonwealth ap providing for the a statute or under 104 A. 494, County, pointment in a second-class a Court clerk 2d 900, 442 272 A. Pa. 1, v. Peirce, as Ritenour such May County P. L. 1929, Act of 2, Code, Class Second 281 A. 2d at 67. 506, 1278.” at years fifty-five in the before this Court, In no case opinion any has there been decided, since Lefean rejecting that the We conclude the rationale of Lafean. ap- temporary power make has the Governor pointments for the not he has submitted, whether or appoint- permanent approval, a nominee for Senate’s appellant argued, the as the Senators have ment. If, appointments authority temporary malte executive people, it is for the not this limited, Court, should Pennsylvania. the Constitution of to amend appel- appellants’ third claim all involves four expiration temporary the time concerns of the lees, appointments. Under the first sentence of article appointments 8(b), temporary expire “at the provision Senate’s] session.” This [the end of must tempo- has not ended which when refer to session appointments rary are made. It must refer to a session temporary appointments end will are which after provision meaningless Otherwise, would be made. n —calling expiration temporary appoint- of a appointment is made. before If, ment therefore, Assembly the General had session ended 155th when temporary were made, these constitu- provision referring could not be read as tional to be read as could provision 155th. session. session would to the end 156th referring in the occur future. not end the 155th session did argue

Appellants final of the Senate on December adjournment with the previously rejected 1971. This has been argument v. Twelve Pleas Court. Creamer Common by this A. the jus- 443 Pa. 2d 57 all (1971), Judges, divided on other unani- although issues, agreed tices, final that the session of the Senate ends with mously of the adjournment. opinions point- As one Creamier ed after final “The Senate was out, adjournment not nor entire physically (as the Court agrees) technically Id. session.” at A. 2d at add- (emphasis ed).

If a session of the Senate not does end with final adjournment rather, continues as but, appellants the the argue until exact moment the that succeeding ses sion there begins, would no time period between two of sessions the General The of Assembly. Constitution for Pennsylvania provides regular and special sessions of the General Assembly. Const. art. II, §4, 8, 9, § art art. III, §12, IV, §12, art. XI, §l(a). Unless a regular session ended with final adjournment, there would have been no need to provide for special sessions. natural only reading of the many references in the Constitution to regular sessions and special sessions re the quires conclusion that a regular session ends with the adjournment final of the General Assembly. We as did this Court conclude, unanimously in Creamer, final adjournment ends a regular session of the When legislature. the Governor made the four (4) temporary appointments involved this appeal, 155th regular session the General Assembly had al ended. ready Therefore, the provision in the first sen article tence of section IY, 8(b), provides that temporary appointments shall expire “at the end of ses to a Senate refer can session,” Senate’s] [tlie appointments Thus, made. were ending after the sion 156th until the end valid were session. Senate argument is that

Appellants’ and last fourth procedure proper Assembly did not follow General attempt- adjournment necessary thus, and, final in- was adjournment 28, 1971, December on final ed according adjournment occurred, final If no effective. appellants, in recess within the Senate was 8(b), Gov- meaning and the article authority to exercise his could not therefore, ernor, Appellants argue appointments. temporary recess make Representatives of the House the concurrence forty-five adjournment resolution in the Senate’s adjournment oc- no final late and, therefore, minutes adopted by adjournment resolution curred. (the Representatives House read: “Resolved, adjourns Regular concurring), that this 155th Session twenty-eighth day December, 1971, Die Sine P.M.” at 10:00 o’clock Representatives upon

The House of acted the ad journment Ap p.m. resolution of the Senate at 10:45 pellants by maintain that the concurrence the House of Representatives had to occur on or before the 10:00 p.m. specified in time the Senate’s resolution. We dis agree expressed by for the reasons the Commonwealth “The Senate Court: resolution did not make time of Obviously, entirely . . . we essence. would have an presented question different to us if the Senate, after p.m., had acted to 10:00 withdraw or recall the resolu expressly if had or it made the tion, Resolution of Ad journment being conditioned on the concurrence af firmatively by Representatives prior voted House of Stroup p.m.” v. to 10:00 5 Pa. McNair, Commonwealth (1972). 248 Ct. 244,

184

We that the 155th conclude Session of the General ended Assembly by effective final adjournment 1971. December 28, temporary

Since the recess appointments in this case did not require confirmation by two-thirds of the Sen- ate, appellees’ challenge to the two-thirds rule as a violation of the one-man-one-vote-rule of the Federal Constitution need decided in this appeal and we, no therefore, express view that concerning question. The temporary recess appointment of the appellees, Kapleau, Lindsey, McNair, were a Schonek, valid exercise of the Governor’s authority and did not expire final until adjournment of the 156th Session of the General Assembly.

Orders affirmed.

Concurring Opinion Eagen Mr. Justice : I unhesitatingly agree with the conclusion of Mr. Justice Manderino the failure of the Governor to seek or obtain the consent of the Senate while the Sen in ate is session does not affect his power to make a temporary appointment after the Senate This adjourns. conclusion is compelled in Com Court’s ruling monwealth ex rel. Snyder, Pa. 104 A. (1918), by the opinion support affirm ance in Creamer v. Twelve Common Pleas Judges, 281 A. 2d 57 (1971).

I also reiterate and subscribe to the view expressed the opinion support of affirmance in Creamer v. Twelve Common Pleas Judges, supra, namely, in a governor-appointed office is continually and that happening the important date, as far as both Art. Section 8(b) and Art. V, Section 13(b) are is the concerned date when the vacancy is sought to be by appointment filled and not when the vacancy arises. first Pleas Common v. Twelve in Creamer is true that

It the with Judges, supra, concerned was the Court 13(b) as however, ; Art. Section V, construction pointed the dif support out, opinion of affirmance 8(b) and Art. Y, Art. Section IY, between ferences changes, basically not 13(b) editorial “are Section 281 A. 2d at changes 443 Pa. at 493, . . .” in substance. 61. by my Mr. reached Justice the result

In Man- view, eminently correct. dekino is I concur. in this joins Justice Jones concurring

Mr. Chief opinion.

Concurring Opinion Mr. Justice Nix: respond Mr. the dissent of I am constrained to suggests reached that the result Justice which Roberts inoperative majority today “effectively renders mandatory provision.” In constitutional view of prior subject, of this Court on this this criti- decisions completely cism is unfounded unwarranted. today’s argue To result vests within Gover power whimsically continually nor “the circum requirement the constitutional of Senate vent advice ignore early and consent” is to as Court appointive power the recess to be allowed used to happening fill while the Senate inwas first Snyder, ex rel. Commonwealth session. Lafean (1918). 104 A. 494 The circumvention of Senate approval complains fully dissent now accomplished when Court rendered the Sen Lafean impotent. power comprehend I of dissent fail ate’s urges accept. the dissent now the distinction that we rejection held that this Court of a preclude appointment nominee would under the very power office which he had been re 186 refusal

jected. That its to clearly opinion expressed find an in of the section of intention 1874 language the dominance of advice and consent appointment tbat a tbe would restriction recess justify upon appoint in an ment More Court by implication. recently this in Ritenour 272 holding Peirce, alternative A. 2d Art. present tbe Sec. (1971), reviewing IV, 8 found tbat was still held tbat and applicable Lafean of tbe tbe to failure Senate act would not restrict make tbe any way power recess appointments. I find it now difficult to understand bow we can be an find limitation urged implied upon tbe exercise of where recess there has been a failure a to submit nominee because tbe of need to preserve Senate What are we confirmation. now being asked tbe of How is preserve? quality government being tbe served charade of by requiring Senate seeking ap yet tbat proval concluding unless there is concur rence tbe deliberations may Senate’s not diminish tbe an iota. The appointive power has eulogy been offered at tbe tbe of wrong funeral; virtues con been firmation should have expounded tbe benefit of tbe Court. Lafean

If faced with we were reconsideration of tbe earlier this judicial interpretation of constitutional pro grave I have difficulty would vision, reaching tbe result of tbe Court and those cases which fol it must be lowed. But remembered tbat our task is reassessment of prior not tbe judicial interpretations of interpretation but rather tbe will of tbe people as expressed this Commonwealth tbe 1967 Amend ment to tbe Constitution this State. In searching for of tbe tbe tbe true intent document Court’s theory of must be subservient to tbe government expressed will Tbe prior of tbe people. interpretation of tbe former tbe adoption of the 1874 section present change, forces tbe without significant conclusion tbat in accordance the section to construe intention was attempt To principles announced with Lafean* judicial public ignore mandate would now over-reaching nature. offensive of the most history the inten light Art. Sec. my powers in separate and distinct two tion to create powers beyond question. of these judgment That one is duty mandatory the con imposes necessitate does non-compliance in a with must result clusion that power. discretionary This not an drawal perform challenge to for failure the Governor to action duty office. to test the title to but rather a mandated alleged failure to I stated the the reasons have For duty, perforin if would established, mandated even the appointment.** power the of recess not affect * changes majority opinion pointed the out the As strengthen provision language former the the from the view. ** reasoning complete the result and I am in accord with standing opinion question majority to the of maintain an action length appointment. quo of the term of the and the warranto by

Dissenting Opinion Mr. Justice Roberts: compelled disagree the I am to with anomalous re- by today’s of affirmance the order of the sult dictated totally result is Court.1 Its inconsistent Commonwealth language express of the Article of IV, with Section 8 Pennsylvania effectively Constitution and the renders mandatory provision.2 inoperative a constitutional This appellant Pennsylvania members of the It is clear to me that standing quo to maintain have this warranto action. my view, makes no sense at all to announce it the Senators challenge constitutionality standing gubernatorial the of have hold, appointments majority does, at the same time to as the and appointments are valid without Senate that such confirmation. provides: IV, Section Article appoint Attorney “(a) Governor shall General, Superintendent Instruction and such of Public other officers as he Gov- of the Article Section IV, 8, grants construction circum- and continually ernor the to whimsically power of Senate advice requirement vent the constitutional and other executive appoint- consent to the contested the majority’s according The Governor may, ments. “tempo- of make a Article Section interpretation the continue until which will rary recess appointment” if Thus, next of the Legislature. the session closing need never submit permanent Governor so inclined, demonstrates history clearly Recent appointment. both have dis- affiliated with political parties governors constitutional mandate. regarded made challenged were Several of 1971—the after the 155th day on December 29, regular Assembly General sine die. adjourned session regular Legislature— then next session of the Since com- adjourned 156th—also virtue of the finally appoint. appointment be authorized law shall Attorney Superintendent General, the of Public Instruction and may specified by law, subject such other officers as shall be consent of two-thirds of members elected to the Senate. Except may “(b) provided or now hereafter be otherwise appellate Judges, may, in this Constitution as to other he during Senate, happening the recess of the fill vacancies in offices by appoints granting expiring to which he commissions at the end happening its session fill of and vacancies in the office of Auditor any or or in General State Treasurer other elective office he is vacancy happens during If authorized to fill. the session of except provided the Senate as otherwise in Constitution, he Senate, shall to the before adjournment, proper nominate its final vacancy. person vacancy In to fill the the case of a in an elective office, person shall be elected to the office on the next election day appropriate to the happens office unless within immediately preceding calendar months day two the election in the election shall which case be held on the succeeding second day appropriate election office. acting “(e) nominations, executive the Senate shall sit open by yeas doors. The votes with shall be taken nays journal.” on the be entered shall

189 2 of the Constitution. Article Section II, mand of to ad- 157th— is soon session—the regular current mandated in is constitutionally any event, journ and, as both Today January terminate at noon on 1,1974. 1978 year and the draw the 156th session legislative ap- December 1971 of the unconfirmed a close, many shortly appointed as well as scores of others pointees in Sen- continue office without thereafter nevertheless ate confirmation. Judge

Because of their analytical soundness, Men- in the Commonwealth Court’s dissenting opinions cer’s consideration of these cases reiteration.3 Ad- warrant dressing anomoly effectively “tempo- permanent rary Judge appointments,” explained: Mencer “Assuming appointment val- question made I idly can read the Governor, language the Constitution provide that appointment at expired the end of the Senate session which the appointment was made.

“I comprehend the session of the Senate to abe full one-year period which may divided into two parts the Senate’s adjournment. That period prior session to adjournment is designated Article Section as The session 8, of the Senate . . . before its final . . adjournment .’ and that period the ses- sion after is adjournment designated as ‘during the recess of the A Senate.’ new session commences at noon of the first Tuesday January of each year and the former session ends at that moment.

“The states majority may very well be that ‘[i]t such was the intention of the people when they adopted 3 Stroup McNair, v. 244, 5 Pa. (1972) ; Commonwealth Ct. 250 Stroup Schonek, v. (1972) ; Stroup Commonwealth Ct. Kapleau, 5 Pa. (1972). Commonwealth Ct. avoid the plaintiffs so as to what Constitution,

the new re the constitutional the circumvention of assert is I it submit was appointments.’ gubernatorial straint on is what they but it people, the intention of the not only clear unequivocal language. and bold, accomplished the 155th during made How can recess appointment its (emphasis session at the end of session’ ‘expiring than it will mean other that end anything supplied) 155th which time was when the Senate’s session ends, 1972? When the words of a at noon on January 4, are from all constitutional clear free provision of it is to be the letter under ambiguity, disregarded its pretext pursuing spirit.” Stroup Schonek, Ct. Pa. Commonwealth 259-61 (1972) (Mencer, J., dissenting). through

This reasonable analysis, effect is to Article IV, attributed Section must em- certainly the intent of body the electorate. Any other result de- nies effect 8. Section It assumes that Consti- tutional Convention and the of this people Common- wealth approved ratified a meaningless provision. This conclusion is more even blatantly apparent interpretation majority’s “shall” as “may”. Like Judge Mencer,

“I read Article IV, Section to8, place Gov- ernor the mandatory duty to submit names to the Sen- ate if the happens during the session of the Senate. ‘he shall words, nominate to the Senate,’ are to plain me and unequivocal. ‘Shall’ not a is word of discretion. To conclude that ‘shall’ is a discretionary word in this context would require the mental addition ‘unless the words, Governor decides otherwise.’

“Article Section 8, provides that the Governor may fill vacancies during the recess of the Senate and, next sentence, Governor shall submit names to the Senate for vacancies happening during the I session. believe it is a fair and sound inference in the Constitution realized people adopting difference ‘shall’ and mandatory discretionary between and intended for them to have their ‘may’ ordinary Pa. Ct. McNair, v. Commonwealth meanings.” Stroup 5 253-54 244, (1972) (Mencer, dissenting). J., The cases Mr. Justice Manderino upon do not affirmance. concurring counsel opinions rely Both Commonwealth ex rel. 261 Pa. Lafean, v. Snyder, 104 Atl. 494 and Ritenour v. 442 Pa. 57, (1918) Peirce, 272 A. 2d 1, 900 involved (1971), gubernatorial appoint ments Senate failure to confirm a following properly submitted Here no proposed permanent appointment. permanent These were ever appointments proposed.4 cases indicate only when the Senate or fails rejects to act on an the Governor make a appointment, may selection. temporary

Creamer v. Twelve Common Pleas Pa. 443 Judges, 281 A. 57 2d was a case 484, (1971), affirmed by divided equally Court. Three Justices concluded that gubernatorial appointments made to positions vacated during a Senate session without submission of the nominees to the Senate were invalid.5 as Furthermore, Creamer majority recognizes, involved Article V, Section 13(b) of our Constitution, section “materially different” from the provision now before us.

Here, Governor failed to with comply his con- stitutional to submit duty nominations to the Senate one approval. present cases did the occur while the Senate was not in session. Even the initial assuming appointments the ma- valid, jority’s nullification of Article IV, Section 8 is a gross misconstruction of a clear constitutional mandate. To 4 Stroup McNair, See 244, 5 Commonwealth Ct. 251-53 (1972) J., dissenting). (Mencer, 5 See Creamer v. Judges, Twelve Common Pleas 443 Pa. 503-04, (1971) (Opinion by A. 2d Mr. Chief Justice Bell Supporting Opposing in Part and in Part the Results Announced Order) (joined by the Per Curiam O’Brien JJ.) Roberts, the con- abrogate chief executive, by fiat, permit under- for executive system stitutional of separation another our yet respect system mines powers. the practice this decision sanctions

Pragmatically, without Sen of the executive’s making appointments decree the confirmation. As a consequence ate well as hundreds others, contested appointees in office. It continue is predictable never confirmed, until the 157th continue their offices will they either sine ends Legislature session regular adjourn or failure to before new die adjournment at noon on the first Tues session convenes 158th regular of 1974.6 day the executive was aggrandizement power For that fear of our forbearers. our persistent reason, divided the carefully sovereign power

Constitution the Commonwealth the three branches of among govern- ment. The wisdom of this division prophetic is, parti- cularly self-evident. today,

I am interpretation unable or result accept so constitutional I wholly lacking accountability. reverse the order of the would Commonwealth Court to dismiss and instruct court defendants’ prelimi- to hear and proceed determine nary objections, constitutional on the important question merits. I dissent. joins

Mr. Justice O’Brien this dissenting opinion. II, See Pa. Const. Art. §4. Estate. Prynn

Case Details

Case Name: STROUP v. Kapleau

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 28, 1973

Citation: 313 A.2d 237

Docket Number: Appeals, 2 to 5

Court Abbreviation: Pa.