Sweeney v. Tucker

ROBERTS, J., O’BRIEN, Before EAGEN, C. POMEROY, NIX MANDERINO, JJ. THE

OPINION OF COURT ROBERTS, Justice. August

On Repre House of special met sentatives and, session a vote of 176 to expelled Sweeney Leonard membership from A. Speaker House.1 The of the House then declared Swee II, provides: art. Pa.Const. power pro- “Each House shall have to determine rules of its ceedings punish persons contempt its members or other disorderly presence, its behavior in to enforce obedience to process, protect against its its members violence or offers of private solicitation, and, bribes or with concurrence two- special calling ney’s for a writ office issued a vacant and 4,1975.2 election on November form- Sweeney of his September On and two equity complaint in er (appellants) a constituents filed House’s alleging Court, the Commonwealth right to his Sweeney’s constitutional action violated salary his form- seat, right payment to his represented er in the House. right constituents’ to be Secretary Tucker, Delores were Named as defendants C. Sloan, Treasurer Commonwealth; M. Grace Fineman, Speaker of Commonwealth; Herbert House; Leroy Irvis, Majority Leader House; K. Ethics Com- of the House Rappaport, Samuel Chairman (ap- Comptroller Francis, the House mittee; and Jean ordering requested injunctive relief pellees). Appellants barring the Sweeney’s pay and with back reinstatement Appellees special filed his to fill seat.3 election called demurrer, preliminary objections of a in the nature argued before the Commonwealth which were January 14, 1976, the October On Common- 1975.4 objections appellees’ preliminary wealth Court sustained member, thirds, for same expel a second time but a Legis- cause, powers necessary for the and shall have all other of expelled corruption for shall free A member a State. lature House, punishment eligible for to either not thereafter contempt disorderly for behavior shall not bar an indictment the same offense.” II, part: vacancy provides “Whenever a art. 2. Pa.Const. House, presiding shall is- either officer thereof shall occur in sue a writ of election to vacancy fill remainder of such the term.” judgment declaring requested declaratory a Appellants also proposed special void. election null and 10, 1975, days special six after a election was 4. On November seat, Sweeney’s preliminary appellants in- held junction fill moved for Allegheny County enjoin the Return Election Board certifying candidate was elected until Common- from that a preliminary objections. On ruled on the November wealth Court 12, 1975, appellants’ judge Commonwealth Court denied motion. complaint. Sweeney Tucker, dismissed the 642, affirm.5 Pa.Cmwlth. 351 A.2d 308 We

I 5, Sweeney On elected appellant November was 1974, represent Legislative District the Seventeenth Representatives. took House of He January oath Three of office and 1975. 7, was seated on days later, by grand jury he was of the United indicted a States District of Penn Court for Western District sylvania conspiracy on one count commit mail fraud of 1975, jury July 30, and five counts of mail fraud.6 On Sweeney The guilty found of three counts of mail fraud. imposed im years court concurrent sentences of three prisonment Sweeney $3,000.00. each on count fined August 5, 1975, Sweeney timely appeal from On filed a judgment Ap in sentence the United States Court peals for the Third Circuit.7 August 18, 1975,

On the House Ethics Committee Sweeney by telegram notified Au it meet on that would gust 25, 1975 to House “discuss future status” as a [his] member and invited him to attend alone or with counsel. Sweeney’s responded demanding telegram, counsel in a compliance day provision with the fifteen notice House Rule 47.8 appeal pursuant Appellate

5. We hear this to the Jurisdic- 1970, II, July tion Act of Act of P.L. art. 17 P.S. (Supp.1977). 211.203 charges Sweeney, attorney, represented 6. The were other an persons compa- payments in a scheme from to obtain insurance injuries nies for fictitious in motor vehicle ac- sustained fictitious cidents. Sweeney’s 7. The Third Circuit affirmed on March conviction Boscia, (3d 1976) (Mem.). 1976. United States v. 532 F.2d 748 Cir. Sweeney 8. apparently relying was on House Rule 47 as it stood during the 1973-74 House session. The text of the 1973-74 ver- complaint sion of the Rule was also as an attached exhibit to the 19, 1975, filed in February the Commonwealth Court. On how- ever, the House amended Rule 47. The amended version Rule was in effect when the House Ethics Committee contacted August 25, 1975

The met House Ethics on Committee Sweeney in counsel attendance. with neither nor his jurisdiction limited was Committee concluded that its no Legislative Ethics and made violations of Code Sweeney’s concerning recommendation to the House status.9 are Sweeney August versions of the Rule The two reproduced Appendices A and B. amended, paragraph six Rule as the Committee Under investigation” “preliminary violations initiate a vi- Only majority decides that a members. of the Committee if question “may notified. olation have occurred” is the member notification, days a written fifteen to file After the member has answer, receipt Committee must either answer. After dismiss charges days proceed formal in- with a within ten thirty days vestigation after notice not less than ten or more than to the member. may telegram Sweeney August have sent to participate been no more than an “preliminary investigation,” in the Committee’s invitation to amended, Rule as Swee- ‘Under the since, per- ney stage, was not the Rule entitled to notice at that parte. mits the Committee act to éx argued telegram notice to It that the constituted insufficient occurred,” Sweeney Sweeney may case violation in which that a have days to file a written answer. was entitled to fifteen notice, Sweeney give days Even if the it does had no failed to fifteen Committee Sweeney’s it not aid cause. The Committee concluded jurisdiction House. and made no recommendation to the Thus, any by of was not related violation Rule 47 the Committee expulsion

to the House action. See notes 9-10 infra. complaint, appellants alleged: In their 9. report “A given of House Committee was to the [the Ethics] days hearing House two of after its committee in violation paragraph not act or says House Rule the committee which [of 47] report days to the House until seven after the inves- tigated findings by registered member receives the committee’s mail.” day provision Both versions of Rule 47 contain the seven notice complaint. Appendices referred to in the How- See A and B. ever, journal proceedings Representa- in the House of tives, complaint, which was attached an demon- as exhibit to the jur- strates that the House Ethics Committee concluded it had no Sweeney’s isdiction over case and made no to recommendation Sweeney’s expulsion House. See note infra. Since was preceded Committee, a recommendation from the Ethics applicability Rule 47 has noncompli- no alleged to this case. The ance support with Rule 47 cannot a claim that il- acted legally expelling Sweeney. August 27, 1975, On special the House in met session to following consider the resolution:

“WHEREAS, Representative Sweeney Leonard E. was jury convicted the court and a in the United States District Court for the District of Penn- Western sylvania for Code, violation of Title 18, United States 1341; Section

“WHEREAS, pursuant finding Sentence to of guilty imposed by was July 30, 1975; the court on

“WHEREAS, Pursuant to Article Section 9 II, Pennsylvan- Constitution of the Commonwealth ia Representatives pow- House of has the exclusive er judge authority qualifications of its members; therefore itbe

“RESOLVED, pursuant powers granted That to the Representatives II, House of under Article Sec- tion 9 and Section 11 of the Constitution of the Com- Pennsylvania, Representa- monwealth of the House of hereby expel tives Sweeney does Leonard E. as a mem- ber Representatives Pennsylvania.” of the House of Again, Sweeney appeared. neither Upon nor his counsel the request Representative Rappaport, Chairman Committee,10 the House Ethics the House inserted Representative Rappaport stated: point deny “It would be facetious at this the Ethics meeting past Committee Monday had a this to discuss the mat- Sweeney. ter of Leonard say jurisdiction “I type can to the House that our that meeting is Legislative limited to violations of the Code Eth- ics or House rules. Sweeney by anyone “Since Mr. has not been accused of vio- lating any specific Ethics, rules of the House or the Code of the Ethics Committee has made no as recommendation to the disposition Sweeney of the so-called case. “However, public certain documents that are matters of rec- Knowing ord came to our attention. that the be House would debating today, resolutions of this nature these documents are presented to House. they part “I ask Copies made be of the House record. have been distributed They to each member. consist of the in- dictment, judgment of conviction and the

503 follow, however, It does that the entire ease moot. “ presented long case is moot when the issues are no [A] parties legally cognizable er ‘live’ or the lack a interest in 486, the outcome.” McCormack, Powell v. U.S. 496, 1951, (1969), citing 89 S.Ct. 23 L.Ed.2d 491 E. 1944, Judgments 1941). Declaratory (2d Borchard, 35-37 ed. though moot, Even some issues a case become have remaining court will consider the “live” issues. Powell McCormack, supra; Keystone Building Corp. v. Lin Savings Association, coln and Loan 266 A.2d Pa. Sweeney continuing Since has interest pay period deprived back for the he office, was we controversy conclude that the remains a live one. Powell supra; McCormack, Floyd, Bond v. U.S. (1966). Sweeney’s pay S.Ct. 17 L.Ed.2d back against Comptroller claim House Francis is not moot.13

Ill Comptroller House Speech Francis asserts that the Debate Clause Constitution, Pa. excluding Clayton sentatives resolution Adam Powell from the House; (2) Speaker refusing of the House from to administer Powell; (3) the oath of office to Clerk of the House from re- fusing perform Representative; (4) the duties due a the Ser- geant refusing pay salary; at Arms from Powell his (5) Doorkeeper refusing from admit to the Powell Supreme Chamber. 395 U.S. at 89 S.Ct. at 1949. The pay ruled that Powell’s back claim was “viable.” The Court unnecessary found it to determine whether other issues in the disposition case pay had become moot because the of the back claim resulted in a remand to the trial court where the mootness of the other claims could be considered. 395 U.S. at 496 & n.8, Here, 89 back Sweeney’s S.Ct. at 1951 & n.8. we have that determined pay IV, claim is viable but Part without merit. infra. Thus, proper there will be no remand and resolution this case requires remaining that rule on we the mootness of the issues. Having pay ruled remaining that the back claim is the sole is- case, sue in the we also affirm the Commonwealth Court order sustaining objections constituents, preliminary Sweeney’s as to legally cognizable who no Sweeney’s pay. have interest in back complaint alleges Sweeney’s right payment also to the salary of his by Secretary Treasury Court, however, was violated Sloan. Appellants conceded before the Commonwealth complaint that the against did not state a of action cause Sloan. 22 Pa.Cmwlth. at 351 A.2d at 309. Const, In the II, 15, to this suit. art. is an absolute bar § this ac- alternative, Comptroller contends that the House justiciable tion Constitu- is not because exclusively expel power tion commits the a member disagree Representatives. with both the House of We necessary merits of contentions and find it to reach Sweeney’s deprived him of his claim that the House For conve- rights under the Constitution. United States nience, in the above order. we these issues shall discuss Speech A. The or Debate Clause provides: Ill, 15, Pa.Const. art. § Assembly in shall all “The members of General cases, except their oath felony, violation treason, privileged surety peace, be office, and breach or sessions of during from arrest their attendance at returning respective going in to and their Houses and in either any speech or debate same; from the and for any place.” in other they questioned shall not be (emphasis added). recently of the Penn the text

This Court observed that essentially sylvania Speech the same or Debate Clause Constitution, counterpart in U.S.Const. as its the federal I, Asso and Protective art. 6. Consumers Education § Ac (1977). Nolan, 372, A.2d ciation 470 368 675 v. Pa. Sweeney’s ac cordingly, whether in order to determine by against Comptroller Pa. tion is barred the House guidance the federal II, 15, from we seek Const. art. § underlying clarify the federal policies cases which Speech Debate or Clause.14

Although Speech the United or Debate Clause history,15 “it English States has its roots Constitution 15, II, are not bound interpreting art. we Pa.Const. 14. (cid:127) I, § interpreting U.S.Const. art. cases Clause, origins Speech Debate 15. For a discussion 544-49, 501, Brewster, 92 S.Ct. 408 U.S. United States v. see Douglas, J., 2531, dissenting, joined (1972) (Brennan, 2553-55 749, 177-84, 169, Johnson, S.Ct. J.); U.S. 86 United States 754-57, (1966). 15 L.Ed.2d 681 interpreted must light experience, of the American and in the context of the American constitutional scheme government.” Brewster, United U.S. States v. 501, 508, 2531, 2535, 33 L.Ed.2d 507 S.Ct. Supreme is de Court has stated Clause

signed protect independence integrity “the legislature.” 169, Johnson, United 383 U.S. States v. 749, 754, 178, (1966) accord, ; S.Ct. L.Ed.2d 681 Fund, Eastland v. United 421 U.S. States Servicemen’s 1813, 491, 501, (1975); 95 S.Ct. 44 L.Ed.2d 324 McMillan, Doe U.S. 93 S.Ct. (1973) States,

36 U.S. ; L.Ed.2d 912 v. Gravel United 408 606, 616, (1972); 92 2614, 2622, S.Ct. 33 583 L.Ed.2d Brewster, 507-08, United States 92 S.Ct. 408 U.S. at v. 2535; 367, 373-74, at Tenney 71 v. 341 Brandhove, U.S. 786-87, 783, (1951). S.Ct. legislative 95 1019 L.Ed. immunity legislators by created the that Clause “insures represent are free to the interests their constituents they without fear that will be later called to task in the representation.” McCormack, courts for that Powell v. 503, 395 U.S. at 89 Speech at Debate S.Ct. 1954. The Clause has broadly been read in order to effectuate its purposes. See Eastland v. United States Servicemen’s Fund, supra; States, (Clause supra ap Gravel United v. plies legislative pro aide for conduct would which legislative performed tected by legislator act if the him self) ; Tenney Johnson, supra; United States v. v. Brand hove, supra; Thompson, 168, 26 Kilbourn v. 103 U.S. L.Ed. (1880). McMillan, supra (conduct 377 But cf. Doe v. de legislative sphere); termined be outside the Gravel v. States, supra (same); United Brewster, United States v. (same). supra “prohibits inquiry The Clause into those things generally said or done in the House or Senate performance of official duties and into motiva Brewster, tion for those acts.” United States v. 408 U.S. 2537; 512, accord, at 92 at S.Ct. Eastland v. United Fund, 501, States Servicemen’s at 95 at U.S. S.Ct. 2024; McMillan, S.Ct. at at U.S. 1820; Doe v. at States, at S.Ct. 408 U.S. v. United Gravel at McCormack, 89 S.Ct. at 2626; v. 395 U.S. Powell Johnson, 179, at S.Ct. 383 U.S. 1954; v. United States Thompson, at 204. 755; 103 U.S. at Kilbourn v. Comptroller’s assertion evaluating Speech of the or Debate Clause that suit, we this bear bar to Constitution is an absolute immunity “[legislative principle that [cre mind . Speech does not or Debate ated Clause] legislative judicial acts.” Powell bar all review 1954, citing McCormack, at 395 U.S. at S.Ct. Marbury Madison, (1 Cranch) 2 L.Ed. 60 5 U.S. legislator against action Even where an legislative Speech Clause, em- barred or Debate activity ployees participate are in unconstitutional who legislative responsible actions; em- for their leg- acting pursuant express ployees are orders underlying judicial islature does not bar review McCormack, supra; Powell v. see decision. Thompson, Supreme supra. Kilbourn v. As the in Powell: stated legislators purpose protection

“The afforded legislative judicial not to ac- is forestall review legislators not distracted or tion but to insure that are legislative performance in hindered the of their tasks by being to their actions.” called into court defend 505, 395 U.S. at 89 S.Ct. at 1955. Powell, petitioners that the reso

In the asserted Representa by passed House of the United States lution Clayton House excluding Powell from the Adam tives Supreme the held that was unconstitutional. employees carrying out the against House action those was Powell from the House which excluded resolution Here, in by Speech as the or Debate Clause.16 barred 2614, States, 606, L. 92 S.Ct. In Gravel v. United 408 U.S. 16. Speech or Debate (1972), Ed.2d 583 the Court held that the Sweeney unconstitu- Powell, claims the House acted that tionally denying sued the House in him his seat.17 He has pay. Comptroller press find to for back We his claim reasoning persuasive and therefore the Court’s Powell Comptrol- Sweeney’s against that action the House hold by Pennsylvania Speech is Debate ler not barred the Clause. Question

B. The Political Doctrine reject Comptroller We also contention Francis’ expulsion pursuant House’s a member Pa. Const, II, art. 11 is been exclusive- a matter which has ly by committed to the House Constitu- subject tion judicial and is not review. precept government

A basic of our form of is that executive, legislature judiciary and the are inde pendent, co-equal government. branches of Common Tate, wealth ex rel. Carroll 442 Pa. 274 A.2d 193 (1971) (plurality opinion) ;18 Kelley, Stander v. 443 Pa. prohibits inquiry Clause would be into of a actions aide which protected by Speech performed or Debate if Clause legislator legislator protected against himself. A in quiry ‘sphere legitimate leg into conduct which “is within the ” activity.’ 2626-27, quoting islative 408 U.S. at 92 S.Ct. at Brandhove, Tenney 367, 376, 341 U.S. 71 S.Ct. 95 L. Gravel, holdings Ed. 1019 In the Court reaffirmed its McCormack, supra,

Powell v. when it stated: prior Congress case has “[N]o held that Members would be they if immune executed an invalid resolution themselves they .. Neither nor their aides should be immune liability from in such circumstances.” 408 U.S. at S.Ct. at 2625. Powell, In taking House excluded Powell from seat 17. Here, which he had Sweeney previously been elected. had taken expelled his seat and was from the House resolution. This purposes difference is Speech immaterial for or Debate Clause. Carroll, opinion Chief announcing Justice Bell filed an judgment Court, joined by Mr. Justice O’Brien and Mr. Justice Pomeroy. Pomeroy Mr. concurring Justice also filed a opinion. (later Justice Justice) concurring Chief Jones filed a opinion in (now which Mr. Justice) joined. Justice Eagen Chief This concurring writer filed opinion. dissenting Justice 508 opinion). The divid (1969) (plurality

406, A.2d 474 250 indis among “are sometimes ing three branches lines any precise defini incapable probably tinct and are A.2d at 421-22, 250 Kelley, Pa. at v. 433 tion.” Stander separa principle of opinion). (plurality Under however, no branch government, powers of tion of the to exclusively committed the functions should exercise Dis Philadelphia School v. See Wilson another branch. Bailey Waters, 308 (1937); v. trict, 225, 195 A. 90 328 Pa. Kel v. generally Stander (1932). 309, 162 See

Pa. A. 819 Mowod, Springdale Townships Wilkins & ley, supra; on other (1976), rev’d A.2d 194 23 Pa.Cmwlth. 1977); (filed June grounds,-Pa.-, 376 A.2d A.2d Packel, 20 Pa.Cmwlth. Jones v. (1975). judiciary’s power

Ordinarily, the exercise constitutionality legislative action does to review powers. e. principle separation of See not offend 137, 2 (1 Cranch) L.Ed. Marbury Madison, g., 5 U.S. powers our Con which certain (1803). There however, branch, upon the stitution confers challenge to subject judicial A review. which are not power which the Constitu Legislature’s of a exercise Legislature presents exclusively tion commits “political justiciable question.”19 non partici- part All the decision of the case. took no Cohen however, co-equal indepen- agreed, pating that as a Justices branch, protect power judiciary possessed the itself dent by compelling payment of against impairment, of its functions necessary carrying monéy reasonably out its those sums of responsibilities. 691, 706, Carr, 186, 210, 7 L.Ed. In Baker v. 82 S.Ct. 369 U.S. nonjusticiability (1962), Supreme 2d “The Court stated: separation political question primarily of a a function of the powers.” disputed un Some commentators have this theoretical Jackson, derpinning political question g., doctrine. E. Doctrine, Question (1973); Political Scharpf, 44 U.Colo.L.Rev. 508-10 Question: Judicial Review and A the Political Functional Analysis, 75 Yale L.J. 538-39 & n.73

509 scholarly There has been considerable over the debate meaning scope political question and doctrine un- Bickel, der the United The g., States Constitution. E. Supreme Virtues, Court —Foreward: Passive 75 (1961); Henkin, There “Political Harv.L.Rev. Is a Question” Doctrine?, Scharpf, (1976); 85 Yale L.J. 597 Question: Judicial and the A Review Political Functional Analysis, (1966); Wechsler, Toward 75 Yale L.J. 517 Principles ConstitutionaLLaw, Neutral 73 Harv.L.Rev. (1959). Professor described the heart Wechsler political political question doctrine when he wrote that a question exists when “the has committed Constitution agency government another determi- the autonomous nation Wechsler, of the issue raised.” Toward Neutral Principles Law, 7-8 Constitutional 73 Harv.L.Rev. (1959). political

A question ordinary stands in contrast to the respect which pay gov- courts to the other branches of ernment. political A question is not involved when court concludes that another branch acted within power upon conferred it the Constitution:

“In such cases . . . the court does not refuse judicial review; it dismissing exercises it. It is an issue as nonjusticiable; adjudicates. it It is not refus- ing pass upon power political branches; passes upon it, it only they pow- to affirm that had the er challenged which had been nothing in prohibited particular Constitution exercise of it.” Henkin, Question” Is There a Doctrine?, “Political Yale L.J. involving political cases questions, however,

courts will not review the actions of another branch be- cause the determination whether the action taken is power granted within the by the Constitution has been exclusively “entrusted finally political to the branch- ” government es of ‘self-monitoring.’ at 599 Id. (footnote omitted). Carr, 369 U. Baker Supreme Court stated

As the (1962), 186, 211, 7 L.Ed.2d 82 S.Ct. S. exclusively has been a matter whether determination to another Constitution committed the United States exercise government delicate “is itself a branch responsibility of interpretation constitutional interpreter of the Constitution.” ultimate this Court as 519-21, McCormack, Accord, Powell 395 U.S. (1969). The same 1944, 1963-64, 23 L.Ed.2d 491 S.Ct. inter ultimate responsibility this the lies Court as with there must preter Pennsylvania We Constitution. by procedures the followed fore decide whether the expel exercising power to Representatives in its House of Pennsylvania subject member to review a process or alleged procedural denial of due courts for an the ex commits whether Constitution Representa pulsion power exclusively to the of House self-monitoring. tives for Carr, supra, stan- the Court articulated

In Baker political evaluating for a case involves a dards whether question: any in- of case held to

“Prominent the surface textually political question demon- a is found a volve co- commitment of the to a strable constitutional issue judicially political department; or of ordinate a lack impossi- manageable resolving it; for or the standards bility deciding policy of without initial determina- an clearly nonjudicial discretion; tion of kind or the a for impossibility undertaking independent res- a court’s respect co- expressing olution due without lack government; need ordinate branches of or an unusual political unquestioning al- adherence a decision made; potentiality ready of embarrassment or pronouncements by depart- various from multifarious question.” ments on one 82 S.Ct. at 710.20 U.S. at passage attempts syn- commentator observes that this

20. One conceptions political question different thesize the doc- Supreme applied in Powell these standards The Court Powell, petitioners McCormack, supra. assert In Rep resolution of the House ed that the United States excluding Clayton from his resentatives Adam Powell it exceeded the House seat was unconstitutional because I, power granted 5 to the House U.S.Const. art. § judge qualifications Petitioners ar its members.21 gued judge only I, that under the House could art. § qualifications The those set forth in the Constitution. Supreme applied Baker outlined in standards petitioners’ v. Carr did and concluded that claim present political question. under held that The Court persons only I, art. the House those could exclude age, residency citizenship whose to meet the failed prescribed Powell standards Since Constitution. met all three ruled that the Court qualifications, majority illegally excluding ex acted him. pressed opinion any no whether exist on limitations Con gress’ power expel punish once seated. member n.27, 395 U.S. at 507 89 S.Ct. at 1956 n.27. concluding power that the no to exclude House has require-

a member-elect who meets the Constitution’s extensively membership, ments for relied English precedents and colonial and debates Con- stitutional Convention. The stated: Court also emerged

“Had the intent of the Framers from these clarity, with materials less we would nevertheless have compelled any ambiguity been to resolve in favor of a scope narrow Congress’ constuction [sic] power prin- to exclude A members-eleet. fundamental ciple representative of our democracy is, in Hamil- words, ton’s people That the they should choose whom Supreme Court, Term, 59, trine. The 1968 83 Harv.L.Rev. 65 (1969). standards, Jackson, For a critical view of the Baker see Question Doctrine, The Political 44 U.Colo.L.Rev. 477 “F,ach I, § 21. provides: U.S.Const. art. 5 Judge House shall be the Elections, Qualifications Returns and of its own Members 512 As 257. Debates 2 Elliot’s govern them.’

please principle Convention, this pointed at the out Madison people limiting by whom much as is undermined itself. . limiting the franchise as can select power] would the exclusion construction broad [A warnings ignore Madison’s power in the dangerous ‘vesting improper & against an 249.” Legislature.’ 2 Farrand Expulsion of a 547-48, S.Ct. at 1977-78. at 89 895 U.S. greatly the determination from member differs seated qualifica- minimum meets the a member-elect whether expel- forth Constitution. for office set tions punish mem- member, Legislature seeks to ling integrity of the protect ber for misconduct and concurrence process. Douglas, in his Justice Powell, in wrote: different well raise

“Expulsion ‘misconduct’ Policing the con- considerations. questions, different from quite different of members ... duct official should whether an elected initial decision seated.” agree Jus with at We 89 S.Ct. 1981.22 U.S.

395 at expulsion pose Douglas legislative exclusion and tice judicial determining propriety problems different rev iew.23 opined: expulsion Douglas case were an Justice also this “[I]f present- justiciable controversy would be I would think that no ed.” cited

23. We do not believe the authorities resolving helpful parties involving legislative exclusion are Harrington today. question us See v. Car- before constitutional roll, Appeal, (1968); Chase 389 Pa. 428 Pa. 239 A.2d Seibert, (1957); 120 Pa. 13 A. A.2d Auchenbach v. McNeill, (1888); Election Pa. 2 A. In re Contested Allen, (1872); (1885); Pa. 465 Common- Commonwealth Leech, McCurdy (1863). ex 44 Pa. 332 An examina- wealth rel. they squarely ques- do of cases that raise the tion the reveals Moreover, judicial legislative of of action. none of the tion review propriety judicial of of of the issue the review cases addresses allegedly powers granted by legislative action which exceeds the present the case involves a question whether The II, 11 of political question close one. Article section is a statute, or or an individual’s constitu- the violates Constitution rights. tional McNeill, constitutionality upheld of a the statute this Court providing elections for House Senate for trial of contested and VIII, § pleas. of Article the seats in the courts of common provided of members contested elections 1874 Constitution that Legislature law, by by of law of or one or more the “Shall be the courts law, thereof; shall, by general judges Assembly the General designate judges by of several classes the courts and whom the election contests shall be tried . . ..” II, provided: § “Each house Article of Constitution the 1874 qualifications judge shall of the election be the constitutionality upholding of of the statute its members.” In the VIII, 17, passed pursuant § reasoned: to article this Court purpose reading is “A of sec. shows that its careful this judge power not and of the election to take from each house the members, qualifications given by sec. 9 cited. Its of its purpose presenting procuring merely provide is for a method respective house evidence and information to the the decision, early necessary intelligent for an and to secure action. “Every every court fact and conclusion of law found house, disregarded may its decision expressed by its as vote to which is entitled to final office and conclusive." 240-42, accord, (emphasis added); 111 Pa. at Chase A. at 342 Appeal, supra (dictum). emphasized quoted portion passage The of above from McNeill, might suggest is dictum which the constitutional judicial Legislature’s scheme does not include review the resolu McCormack, generally tion election contests. See Powell v. n.42, n.42, 395 U.S. 89 S.Ct. 23 L.Ed.2d 491 (1969); (1937). only Annot. 107 A.L.R. 205 issue before McNeill, however, jurisdiction Court in was whether it had before Legislature Even if the resolved the election contest. dictum preclude judicial Legislature’s was meant to review of the deci contests, sion in election unanswered McNeill still leaves several states, questions. Nothing opinion example, whether in members, judging qualifications Legislature of its can add Constitution, qualifications to Pa. those enumerated in the see II, 5, judicial legislative Const. art. exclu rules out review grounds. generally sion based on such extra-constitutional See McCormack, supra. any Powell v. Nor is there indication wheth penalizing er this Court review ex exclusion Caroll, Harrington rights. ercise of federal See constitutional Jones, supra Musmanno, J.); (Opinion (lat (Opinion id. J. J.)). generally er Floyd, C. See Bond v. 385 U.S. 87 S.Ct. ambiguous 17 L.Ed.2d 235 We cannot conclude from the language particular a in case which neither addressed these issues grants Pennsylvania each House the Constitution pro- “power of Legislature to determine the rules its the Legislature’s pow- ceedings.” Specific the limitations on operating im- procedures er to determine its internal are ground reviewability any Legislature nor acted, after the has involved preclude judicial all that the Court meant to review these situations. the relation- cited bodies involved other cases above government ship units. of local to the courts cases, adju- engaging In those was not in constitutional this Court co-equal relationship considering branch- dication or es of or home rule charter. the between Rather, interpreting government. a statute was the Court leg- Moreover, constitutionality of the the islative not action was at issue. McCurdy, interpreting Philadelphia Act In Charter jurisdiction an consider to this held it had no that an individual quo action to oust election in a warranto contest adjudged How- city election winner. had whom the council ever, at issue in reviewability was not action of the council’s presented to the his claim the relator had not the case because Again, quo city requesting warranto. writ council before reviewability al- of council action the case does address the not leged to be unconstitutional. ruling Auchenbach, it that a trial court this Court reversed not jurisdiction who did of a candidate had void an election to requirement to the satisfy statutory residency for election a Reading trial court’s reasoned that the select council. The Court statutory jurisdiction only and that election contests extended to power qualifications solely the munici- judge resided with pal Harrington Phila- under the council. involved identical facts Harrington-, delphia In both Auchenbach and Home Rule Charter. qualifications municipal passed yet the the council had on the not rulings on person whether the councils’ elected. The issue qualifications subject judicial was before the review not were only statute under the relevant Court. The cases establish that charter, offi- home rule council must act before an elected may statutory disqualified or charter cial for failure to meet qualifications. They action the councils’ do establish that not be reviewed Court. Harrington judi preclude are read to Even if Auchenbach and Carroll, review, conclusion, Harrington questionable cial see 526-29, (1968) (concurring and 428 Pa. A.2d 445-46 Roberts, Allen, dissenting opinion J.); Pa. Commonwealth v. they principle (1872), de establish no more than the qualifications of cision fice which have been for failure for whether to exclude to meet statute or charter is a determina set out government legislative body solely tion unit. of the local precludes exceed Neither case review of claim that the council McCormack, power judge qualifications, ed its supra, see Powell v. rights, Bond or violated an individual’s constitutional see Floyd, supra. posed elsewhere in the Constitution. See Pa.Const. art. judicially Ill, 1-13.24 These limitations are en- §§ 24. III “Article LEGISLATION A. Procedure Passage of bills passed bill, by except No law shall be so and no bill shall be amended, House, passage through altered or on its either as to change original purpose. its committee; § printing 2. Reference to committee, No bill shall be considered referred to a unless printed for use the of the members and returned therefrom. § 3. Form of bills passed subject, containing No bill shall be which more than one title, expressed clearly except general appropria- shall be in its a codifying compiling part tion bill or a bill law or a thereof. the § 4. Consideration of bills Every days bill shall be in each considered on three different printed House. All amendments made shall be for the thereto use members before the final is taken on the bill and vote taken, upon request is to before the final vote written addressed presiding per by twenty-five the cent at officer of either House least at House, any of the members elected to that bill shall be read law, length in that House. No shall a its bill become unless on passage yeas nays, by final persons the vote is taken and names of the the against voting journal, and are the and it entered majority a of the members to is elected each House recorded voting as in its thereon favor. Concurring amendments; § 5. in reports conference committee by by No amendment to bills one House be concurred in shall other, except by the ed majority vote of of the the members elect- thereto, by yeas nays, taken and and names the of those vot- ing thereof; against upon journal for and recorded the and re- ports adopted of committees of in conference shall be either only by majority House thereto, of vote of members elected by yeas voting nays, taken and the names of those upon journals, recorded 6. Revival No law shall be i amendment laws revived, amended, provisions or the thereof ex- conferred, by tended or only, to reference its title so but much revived, amended, as thereof reenacted and is extended or conferred shall be published length. at § special 7. Notice of local and bills special passed No local or bill shall be unless in- notice apply tention to published locality therefor shall have been in the situated, thing where the matter or be be to effected thirty days prior which notice shall be at least to the introduction Assembly

into the General of such bill the manner to be provided law; by pub- having evidence of such notice been lished, shall Assembly, exhibited the General before such passed. act shall be g., Smith, Pa. forceable. See e. Scudder pur joint (declaring resolution (1938) 200 A. 601 porting commission unconstitutional as to create a III, (1874)); Stewart art. violative Pa.Const. § (declar (1937) Hadley, A. Pa. Legislature’s failure ing act unconstitutional due (1874)). III, comply with art. Pa.Const. express procedural im limitations light impossible functions, it

posed on certain the ex limitations on such infer from the absence of to leave those pulsion power intended Framers House. exclusively of each procedures to the discretion two-thirds supported well as This inference is Signing § 8. of bills shall, presence of presiding officer of each House joint presides, sign all resolu- he bills and the House tions publicly which over been passed Assembly, after their titles have the General signing immediately signing; and the fact read before journal. shall be entered on the § resolutions 9. Every concurrent orders and resolution Action on vote, order, of concurrence or to which the except question of ad- may necessary, on the both Houses be it shall journment, presented before the Governor and shall be to him, being disapproved, shall be re- approved by or take effect be according the rules and passed by of Houses two-thirds both prescribed in case a bill. limitations § 10. Revenue bills originate House of raising in the All bills revenue shall for propose Representatives, as in amendments but the Senate other bills. Appropriation § 11. bills appro- nothing general but appropriation shall embrace bill executive, judicial departments priations legislative and for the Commonwealth, public public and schools. for the debt for the bills, by separate each appropriations em- All other shall made be bracing subject. but one Legislation special designated at sessions Governor special Assembly ses- When the General shall convened sion, legislation subjects upon than there no other those shall be proclamation calling designated such in the of the Governor ses- sion. personal § 13. Vote denied members with interest any personal private A member or interest in mea- has who Assembly proposed pending the sure or bill or before General member, shall which is a disclose the fact to the House of he shall not vote thereon. requirement expulsion, protects vote which an indi- legislator’s rights. addition, vidual re- this Court’s procedures Legisla- operating view internal arguably is ture an undue intrusion in the affairs coordinate branch.

Nevertheless, persuaded procedures we are employed by expelling the House in a member have not exclusively body by Pennsyl- been committed to that vania Constitution and can be reviewed courts alleged when it is the House a member’s action violated right procedural process. due

First, requirements determination procedural process undeniably judicial due is within power Pennsylvania judiciary by V, vested in the article See, 1 of g., section e. Constitution. Mining Department,

Coal Association Insurance Indeed, Pa. (1977). A.2d the institutional competence expertise developed is courts well process Moreover, political question due field. doctrine is disfavored when claima that individ made ual liberties infringed. Ichord, have been See Davis v. U.S.App.D.C. (1970); 442 F.2d Jackson, Question The Political Doctrine, 44 U.Colo.L. Rev. (1973); Scharpf, 495-98 Review Judicial Question: Analysis, Political A Functional 75 Yale L.J. civil 583-84 Where liberties are con cerned, legislature] does not think of

“[o]ne as func- [the tionally equipped designed interpret the Constitu- review, system, tion without nor under our does one wish legislature] to to leave author- the unbridled [the ity constitutionality to determine own of its acts.” Question Jackson, Doctrine, The Political 44 U.Colo.L. 477, (footnote omitted). Thus, Rev. where text unambigously does commit the Constitution procedures expulsion exclusively finally used to the Constitu- inclined to construe House, we are not pro- of due denial judicial review of a claimed

tion to bar cess. that has held context, this

Second, in similar Court scrutiny. judicial subject to legislative procedures are Brandamore, 459 Pa. ex In Commonwealth rel. Carcaci refused to an (1974), who 48, A.2d 1 an individual Representa House of questions at bar swer pursuant Resolution imprisoned to a House was tives and procedures holding contempt,25 him in asserted satisfy contempt did not the House held him in which writing majori process. Pomeroy, for a due Mr. Justice ty Court, stated: body course, the manner in which a

“Of authority power its to vindicate its exercises inherent proce- processes satisfy requirements of must process.” dural due 56, Barry 5; at 327 A.2d at see v. United States Pa. 455, 452, rel. 597, 614,

ex S.Ct. Cunningham, U.S. (1928) (procedures by 73 L.Ed. which the United subject investigate power States Senate exercises its to imposed implications “to the restraints or found in the 1, Constitution”); Ballin, 144 U.S. United States v. 507, (Congress’ pow- 5, 509, (1892) 12 S.Ct. 36 L.Ed. 321 power er to determine its own rules does not include “ignore to constitutional restraints or violate fundamen- rights”). States, tal See also 354 U.S. Watkins v. United 178, 1173, (1957). This 77 S.Ct. 1 L.Ed.2d 1273 procedures challenged to reviewed in Caread they process. make sure that satisfied due adopted pursuant The House resolution in Carcaci was contempt power to the which is from the derived same provision, II, and, constitutional art. in- Pa.Const. § 11— Legislature interpreted power punish persons 25. The has its contempt, II, power § Pa.Const. art. include the to commit prison. a contemnor § See Act of June P.L. 46 P.S. 61 deed, provision the same sentence within that ex- the—as pulsion power. perceive We no textual reason to con- power exclusively strue one as committed to the House Moreover, punishment and not the other. of a member by expulsion punishment of the House of a non- by contempt member serve both similar functions. legislative body acting preserve situations, its authority protect integrity and to process. process It would be anomalous to hold that one is reviewable while the other is not.26

Finally, ignore we cannot role crucial state courts play enforcing rights. generally constitutional See Aldisert, Expansion Judicial of Federal A Jurisdiction: Judge’s Thoughts 1983, Comity Federal Section Caseload, (19 ). Federal 5 L. In- & Soc. Order 557 — deed, there justification be less need com- mitting exclusively an gov- issue to one branch of state ernment where state by courts can decide an refer- issue ence to the provided external standard federal law. We proper believe that judici- consideration of the state ary’s function in system our government federalist militates toward a construction of the Con- stitution which will minimize the number of federal con- stitutional issues insulated from state court review application political question doctrine in Penn- sylvania.

In Bond v. Floyd, 385 U.S. S.Ct. 17 L.Ed. (1966), Supreme 2d 235 juris Court held that it had diction to determine whether duly the exclusion of a elected Georgia Representatives member of the House of for statements he criticizing made policy United States Comptroller’s attempt 26. The House distinguish Caread is un- persuasive. Comptroller argues deprivation House liberty cry” “is far from loss of a House seat and that “it can- not be said that a member must be [House] accorded the same process rights due citizen, private accorded to a as such Carcaci.” argument This confuses reviewability proce- the issue of of House dures Sweeney’s with the merits of claim. rights under first and four- his Vietnam violated States Constitution. of the United teenth amendments Georgia ruled that the action The Court right expression free under First “violated Bond’s at at 87 S.Ct. Amendment.” U.S. that.legisla Bond that a claim establishes

While legislator depriving of his seat violated tive action a right may legislator’s constitutional redressed federal be federal, state, courts,27 the case involved court may jurisdiction. The federal Constitution not mandate Pennsylvania provide for a forum such courts that deprives Pennsylvania if the Constitution claims jurisdiction.28 conclude, however, that the courts We Bond, argu- responded as Court follows to the State’s disqualification that was based on a constitutional ment Bond’s standard, e., Georgia requirement i. oath Constitution: uti- is this was “. . . Bond’s contention that standard rights, infringe his we cannot lized to First Amendment and jurisdiction, disqualifica- distinguish purposes between a disqualification standard a tion under an unconstitutional which, standard, alleged proper although is to violate under a the First Amendment.” rationale, 131, we believe U.S. at 87 S.Ct. at 347. Under this 385 legisla- jurisdiction over claims that state that federal courts have expelling legislator his federal constitutional tive action a violated Leatherman, 1971); rights. (5th v. 450 562 Cir. See Gordon F.2d Sanders, F.Supp. (three-judge McCarley (M.D.Ala.1970) 309 8 court). Constitution, Supremacy U.S.Const. 28. The Clause of the federal VI, adjudi- plain if state court undertakes art. “Makes a controversy, do so with a it must in accordance whatever cate Hart, applicable.” is The Relations Between State federal law Law, 489, (1954). a 54 507 Whether Federal Colum.L.Rev. simply adjudicate controversy a federal must because state a plain. right so is not asserted Supreme state leading cases establish that a has right obligation if it enforces constitutional an to enforce a federal analogous right adjudicate may a case not decline state against grounds discriminate a federal interest. Mis which 1, 4-5, 1, 3, (1950); Mayfield, 8 71 S.Ct. 95 L.Ed. souri v. U.S. 233-34, 230, Ry., Louis & F. 292 U.S. 54 S.Ct. McKnett St. S. York, 691-92, 690, Douglas (1934); N. & v. New H. 78 L.Ed. 1227 387-88, 355-56, R., 49 S.Ct. 73 L.Ed. 747 H. R. 279 U.S. York, R., N. H. H. U.S. (1929); S.Ct. 117, v. New & R. 223 Pitcairn, Mondou 169, 178, (1912); Herb v. 324 U.S. L.Ed. see 459, 460-61, generally 89 L.Ed. 789 See S.Ct. construed, Constitution should be when legislative possible, permit state court review of action alleged to be unconstitutional. resolving is a interest in federal claim

There state against state action the state forum. Gen- preferable arising erally, it is from the that conflicts government functioning of re- state resolved without judiciary. expertise in sort to the State federal court may quality state law enhance the of the constitutional adjudication. example, litigation, For one Bond judge federal asserted that Bond’s exclusion was unlaw- Georgia F.Supp. ful under the Constitution. See (N.D.Ga.1966) (three-judge court) (dis- 351-57 senting opinion). Moreover, federal court intervention adjudication state affairs be more intrusive than Note, Federally Rights, State Enforcement of Created Harv.L. 73 (1960)

Rev. 1551 “State [hereinafter Enforcement”]. holding accept jurisdiction state courts that must the under Employers’ Act, Liability Federal seq. (1972), 45 U.S.C.A. 51 et Supreme Court stated: any attempt by Congress not here involved en- “[T]here large to regulate jurisdiction of state courts only question duty juris- but such a court when its of diction, prescribed by as appropriate local laws is to the occa- sion, conformity cog- and is invoked with laws those to take right arising nizance of recovery an to action enforce of civil Congress under the act of . . York, R., 56, Mondou v. New N. H. & H. R. 32 at U.S. at S.Ct. 223 (emphasis added). 178 There is authority proposition also some Congress for the that require can federally rights states to enforce no created when analogous rights Katt, state created exist. See v. Testa 330 U.S. Enforcement, (1947); supra 67 S.Ct. L.Ed. State at 1554-56. Congressional mandate, In the absence of a the feder- probably require al adjudicate Constitution does not the states to a federal jurisdiction “appro- claim when the state courts’ the occasion.” Our federal is not priate to system recognizes im- portance “maintaining of political the states as with viable units ability judicial to systems direct the ends for which their Enforcement, supra shall used.” State at 1555. Thus, the probably federal Constitution would not be offended Pennsylvania if judiciary precluded by Constitution all review state legislative expulsion. Henry of 443, 452-53, Mississippi, See also v. 564, 570, 379 U.S. S.Ct. 13 L.Ed.2d 408 Banks, State (Mo.1970). But see 454 S.W.2d developed The federal courts have the state courts. to minimize such federal-

several doctrines restraint Field, generally Abstention Consti- state friction. See Scope Doctrine, tutional The Pullman Cases: paral- (1974). The state courts have a U.Pa.L.Rev. 1071 rights. responsibility lel constitutional enforce federal attempted responsibility in This has meet this Court justice. the administration criminal In Common- Schmidt, Mr. (1978), wealth 299 A.2d 254 Pa. Pomeroy stated: Justice

“By aligning our un State’s ‘waiver’ conception Hearing der the that Conviction with used [Post Act]29 sought in federal this has to insure that courts, would federal courts occasions be few when the necessary . would find it to reach and decide issues which our courts had refused to decide on State the merits.” (Opinion J.,

452 Pa. at 299 A.2d Pomeroy, at 260 joined by (now Eagen, J.), J. C. with three Justices con- curring result). salutary principle expressed Pomeroy present Mr. Justice is no less forceful in the possible, context. When this Court should construe the Pennsylvania permit adjudication Constitution state against po- of those claims, federal raised actions of the cogniza- government, litical branches of state which are ble in federal court.

For the reasons above, discussed we hold judicial Constitution does not review bar of a expelling claim that action a member from rights. his seat violated his federal constitutional

IV—Due Process In order to requirements procedural determine the of due process, we must first determine if the interest as- 25, 1966, 1580, 4, January 29. (1965) § Act of P.L. P.S. 19 1180-4 (Supp.1977).

523 by Sweeney protected by process clause, the due serted Mining amendment Coal U.S.Const. XIV.30 Department, 437, Association v. Insurance 471 Pa. 370 (1977). applicability A.2d 685 “The constitution- guarantee procedural process depends al due legitimate presence ‘property’ first instance on the of a ‘liberty’ meaning or interest within the of the Fifth or Kennedy, Fourteenth Amendment.” Arnett v. 416 U.S. 134, 164, 1633, 1649, (1974) 94 S.Ct. L.Ed.2d 15 40 J., (Powell, concurring joined by Blackmun, accord, J.); Regents Colleges Roth, 564, Board State v. 408 U.S. (1972). 92 2701, Only legiti- S.Ct. 33 L.Ed.2d 548 if a property liberty mate interest exists does court de- process Brewer, termine Morrissey “what is due.” v. 471, 408 481, U.S. 2593, 2600, 92 S.Ct. L.Ed.2d 484 33 (1972).

Sweeney property asserts that he has a interest in his Comptroller House seat.31 Francis, relying heavily Supreme argues several cases,32 older Sweeney property has no interest within the sense guarantee process. constitutional of due Under modern process, property notions of due interests encom- complaint 30. The alleged filed in the Commonwealth Court also that Pennsylvania process the House Sweeney generally Pennsylvania action denied due under Constitution. See Min Coal ing 437, Ass’n Dep’t, v. (1977); Insurance 471 Pa. 370 A.2d 685 Estate, 427, denied, Norvell (1964), 415 Pa. 203 A.2d 538 cert. 913, 900, U.S. (1965). 85 S.Ct. 13 L.Ed.2d 799 This claim was Constitution, appeal. abandoned in this State law or the state however, may interests, property define which are then entitled protection process under the due clause of the federal Consti Brennan, tution. See State Constitutions and the Protection of Rights, 489, Individual (1977). 90 Harv.L.Rev. Sweeney 31. raises deprived no claim that the House action him of liberty Sanders, interest. generally McCarley See F. Supp. (M.D.Ala.1970) (three-judge court). Hughes, 1, 397, Snowden v. 321 U.S. 64 S.Ct. 88 L.Ed. 497 650, (1944); Newell, Cave v. Missouri ex rel. 246 U.S. S.Ct. (1918); Taylor Beckham, 62 L.Ed. 921 178 U.S. 20 S. Ct. Carolina, (1900); 44 L.Ed. 1187 Wilson v. U.S. North S.Ct. 42 L.Ed. 865 person legitimate

pass to a has “a those interests which Regents State of entitlement.” Board Col- claim leges Whether v. Roth 408 at at 2709. U.S. S.Ct. protections depends process an is to interest entitled due governmental activity and the citi- the nature of the activity. dependency justifiable zen’s reliance on that Mining De- Association v. Insurance Coal partment, Pa. at 370 A.2d at 685-86. Sweeney’s in questionable interest

It whether is Sweeney property fails to articu his office is a interest. why should considered late interest in his office his property meaning of the fourteenth amend within though, property inter clear, It if he has ment. est, highly it is a circumscribed one. See Gordon 1971). Leatherman, (5th An elected 450 F.2d 562 Cir. public private office is a not the domain of the of trust, profound Legislature A member has a ficeholder. responsibility represent to in the formu his constituents public policy lation of He holds office for this state. rely justifiably the benefit of his constituents and cannot private expectation holding on a need office. He is periodically through accountable his constituents process. paramount public electoral Due to the interest integrity legislative process, Pennsyl provides expulsion by vania Constitution two-thirds representatives people vote of the of the entire Legislature subject A state. member of the is thus political process generally at all See at 565 times. id. (an “subject imposed elected official is conditions system political the terms and nature of the in which operates”). properly public he This is so for the interest outweighs any private in the office far interest of the of An ficeholder. elected official can never have tenure in ordinary public employee. the same sense as an assuming Sweeney’s Even proce- interest is entitled to protections, rights dural we are convinced that his have procedures of what been violated. “[Consideration process may require begin . . must due . with government precise determination of the nature private function involved as well as the interest by government has been affected action.” & Cafeteria Restaurant Workers v. McElroy, 367 U.S. 1748-49, (1961), quoted

S.Ct. 6 L.Ed.2d 1230 Morrissey Brewer, 408 U.S. at at 2600 S.Ct. Mining Coal Association v. Insurance Department, 471 Pa. at 447-448, 370 A.2d at 691. Given legislator’s the private circumscribed nature interest of a in his overriding Legis elected office and the need for the protect through integrity lature to its the exercise expulsion power, may requirement it the of a be that expel by procedural two-thirds vote to itself due satisfies process. explain process Sweeney why fails to he re alleged ceived was insufficient. His reliance on the vio implies lation of House Rule claim that notice was Assuming notice, insufficient. he is entitled “tim ing and depend content of the notice . . will . appropriate competing accommodation of the inter ests Lopez, 565, 579, Goss v. involved.” U.S. 95 S. 729, 738-39, Ct. 42 L.Ed.2d 725 Consideration competing legislative expul interests at stake in sion convinces Sweeney adequate us that had notice impending House action.

Sweeney’s challenge procedures employed by to the exercising power expel its constitutional without merit.

Decree party pay Each affirmed. own costs. J., joins MANDERINO, opinion in this and filed a concurring opinion. A

APPENDIX HOUSE RULE 1973-74—HOUSE SESSION VERSION eight mem- on Ethics shall consist “The Committee Party ap- Majority bers; members of the four shall be Minority pointed by Speaker four shall be of Speaker Party Minority appointed by Leader. designate shall the Chairman. charges complaints

“The shall receive Committee against employees the House officers and members, upon majority of the members entitled the vote of a Committee, possible may investigate unethi- on the employees to members, cal conduct of officers or as viola- any the tions of Act of or violations of No. 154 pertain Rules of the House which to ethics or In the event that the elects to in- decorum. Committee vestigate member, any em- the conduct of officer or person days’ ployee, such fifteen shall receive at least investigation written notice the matters under present shall entitled to wit- evidence, be cross-examine represented nesses and be counsel before the Commit- may grant tee. The Chairman a continuance for reason- able cause. investigations

“The Committee shall conduct its hearings hold its in closed session and the fact that such investigation being hearings is conducted or that are being held or are to be held be shall confidential informa- person subject tion unless the investigation to advises writing hearings Committee in any that he elects that may publicly. be election, held In the event of such an the Committee person public shall furnish such a hear- ing.

“The Chairman, upon majority the vote of a members of upon request Committee or person subject to investigation, subpoenas shall issue pro- testimony of witnesses and the attendance and documentary relating any matter duction of evidence investigation by under Committee. Committee may affirmations, administer or examine and re- oaths ceive evidence.

“All testimony, documents, records, data, statements or information the course received Committee any investigation private ex- be confidential shall cept hearings report public case of or in a report House. No House unless the shall be made finding illegal Committee has a of unethical or con- made part person investigation. duct on the under No finding illegal or un- unethical conduct shall be valid signed by majority less at a least of the members entitled any to be on the No Committee. action shall be taken on finding illegal nor or unethical conduct shall such finding report containing finding pub- or such made days copy finding lic sooner than seven after a by registered legislator, sent mail to the officer or em- ployee investigation. under may adopt procedure

“The Committee further rules of not inconsistent with this rule.

“The Committee on Ethics meet with committee investigations hearings involving of the Senate to hold or employees jointly of the two Houses officers or em- ployees Legislative Bureau, the Reference the Joint Commission, State Government the Local Government Commission, Legislative Budget the and Finance Com- Legislative Committee; mittee Processing and the Data provided, however, joint may that no action be taken at a meeting approved by majority unless it is of the mem- a bers of the House entitled to be on the House Committee on Ethics. request legislator,

“The Committee the officer at of a employee problem relating or concerned about an ethical conjunction may

to himself in others, alone or with ren- advisory relating opinions regard questions der with pertain- to Act No. 154 of or the of the House Rules ing opin- advisory or decorum. ethics Such changes ions, with such deletions and as shall neces- be sary protect identity persons involved them, seeking may published.” be B

APPENDIX during 47, as HOUSE RULE amended House Session 1975-76 rule, “As used the context of this the word ‘Commit- tee’ mean the on Ethics shall Committee House Representatives, phrase ‘majority and the of the Com- majority mittee:’ shall mean a of the members to which the Committee is entitled: eight

“The Committee shall consist of four members: ap- Majority Party of whom shall be members of the pointed by Speaker, four of shall whom be mem- Party Minority Minority appointed by bers of the Speaker appoint shall from the members a Leader. Secretary Chairman, Vice for the Com- Chairman majori- mittee. The Chairman shall be a member of the ty party Chairman shall a member of Vice party. minority notify

“The shall Chairman all members of the Com- twenty-four date, mittee at least hours in advance place regular meeting. time and Whenever regular major- meeting, Chairman shall refuse to call a ity meeting by giv- vote Committee to call a ing days’ Speaker two written notice to the the House setting place meeting. forth the time and for such Such posted notice shall be read in the House and designee. Chamber the Chief or his Clerk, Thereaf- speci- place time meeting and ter, the shall be held at in fied such notice. investigations, hear- its

“The Committee shall conduct investigation or ings meetings relating specific and to a in specific member, employee a officer or of the investigation is closed session and the that such fact hearings or being that conducted or to be conducted or meetings being such be held shall are held or are to subject in- person confidential information unless vestigation writing he advises the Committee publicly. hearings elects In the that such be held shall event furnish election, of such an shall Committee person public meetings hearing. such of the a All other open public. Committee shall be to the complaints against “The Committee shall receive mem- bers, alleging illegal employees officers and of the House complaint or Any unethical conduct. such must be writing by person complaint filing verified and question must set forth in detail the conduct in ‘Legislative section of the of Ethics’ or House rule Code violated. The preliminary Committee shall in- make a vestigation complaint, if it is determined a majority of the Committee that a or violation the rule law occurred, person against have whom the complaint brought writing has been shall be notified in given copy complaint. days Within fifteen receipt person may after complaint, such file a written Upon answer re- thereto with the Committee. ceipt answer, majority vote of the Commit- tee, the complaint Committee shall either dismiss the days proceed within ten investigation, with a formal hearings, to include days not less ten than nor more than thirty days writing after persons notice in to the so charged. person charged Failure of the to file an an- swer shall not be deemed to be an admission or create an presumption complaint or

inference true, that the is majori- such prohibit failure to file an answer shall not a ty of the proceeding Committee from either with a for- investigation dismissing complaint. mal or the majority may prelimi- “A of the Committee initiate a nary investigation suspected Legisla- of the violation of a by tive Code of Ethics or House rule a officer member, employee or of the it House. If is determined a ma- jority of the Committee that a violation of a rule or law may occurred, person question have the in shall be noti- writing fied question of the conduct in and the section ‘Legislative of the Code of Ethics’ or House rule violated. person days, may Within fifteen such file a written an- Upon receipt swer answer, thereto. of the vote of majority of the Committee, Committee shall either charges dismiss the days proceed within ten or with a formal investigation, hearings, include not less than days ten thirty days nor more than after notice writ- ing person charged. so person Failure of the charged to file an answer shall not be deemed to be an admission or create presumption an inference or that the charge true, and such failure to file an answer shall prohibit majority of the Committee from either proceeding with investigation, a formal dismissing or charge.

“In the event that pro- Committee shall elect to ceed with investigation a formal any conduct of member, officer employee or House, the Commit- employ tee independent shall counsel who shall not be employed by any the House purpose for any other or in capacity other during investigation. such “All rights any constitutional person under inves- tigation preserved, shall person be and such shall enti- present tled to evidence, witnesses, cross-examine face accuser, his represented by and be counsel. hearing any may for rea- continue

“The Chairman majority cause, upon of a vote sonable request person subject to upon Committee subpoenas investigation, issue the Chairman shall produc- testimony of and the attendance and witnesses any documentary relating un- matter tion of evidence investigation by The Com- der formal Committee. exam- mittee oaths or administer affirmations ine and receive evidence. data, records, documents, statements testimony,

“All by in the course or information received the Committee any investigation private ex- shall be and confidential of report the cept public hearings to or in a case of a report No the House unless House. shall be made to finding majority of has of unethi- made a Committee illegal part person in- under cal or conduct on the of the illegal vestigation. finding conduct of or No unethical signed by majority of be valid least a shall unless at minority report re- Any may a Committee. such include finding illegal port. any of No action shall be taken on finding report con- or or unethical conduct nor shall such taining finding public seven such be made sooner than by mail days copy finding certified after a of the is sent investigation. member, employee to the or officer under may meet “The Committee with a Committee investigations hearings involving em- to or Senate hold employees ployees jointly or houses or officers two Legislative Bureau, the Joint Gov- Reference State Commission, Commission, ernment Local Government Leg- Legislative Budget Finance and the and Committee however, Processing provided, Committee; islative Data meeting it may joint unless that no action be taken at a approved majority Committee. shall “In the the Committee event that a member of temporarily investigation, be under such member shall be replaced mem- like manner as said the Committee in a original appointment. ber’s Committee, request of or not at the

“The whether member, employee or concerned an ethical officer about relating conjunction problem to himself with alone may opinions regard others, advisory render with pertaining questions ethics or decorum. changes opinions, advisory with such deletions and Such per- necessary protect identity be as shall seeking published them, and sons involved or be be to all House. shall distributed the members “Any breaching the Committee the confi- member dentiality of set in this rule materials and events as forth immediately from the shall removed Committee replaced like in a man- another member of original appointment. ner as said member’s may adopt procedure “The rules Committee hearings orderly investigations, affairs, of its conduct meetings, rules with this which are inconsistent rule. to exist and have au-

“The Committee shall continue Adjourn- thority power to function sine die after Assembly until ment of the shall so continue General expiration then term of office current members the Committee.” concurring. Justice,

MANDERINO, However, I can- join opinion of the Court. I reliance, pages accept at continued defining scope of due method of the outmoded “property protections in terms interest.” process of a Sweeney’s recognize in- It sufficient is Mr. process protection without hav- to due terest entitled analogize right property. ing it to a notes testimo- ny sentencing.” 502 copies indictment, judgment of Sweeney’s record con- sentencing. testimony viction After notes of of his and debate, adopted expelling the House the Resolution Swee- ney. II—Mootness Court, argument this theAt time of oral before Sweeney’s already expired.11 There term of had office ordering fore, Swee appellants’ prayer injunction for an Repre ney’s House of reinstatement as member 136, Meyer Strouse, 422 Pa. sentatives is moot. v. See 221 rel. McCormick (1966); 191 ex A.2d Commonwealth curiam); (1934) (per Swaney, 565, 313 Pa. 169 A. 883 v. A. 778 Floyd, 172, 117 Commonwealth 274 ex v. Pa. rel. (1922) special circum (per curiam). In the absence of questions. stances, such this will consider Meyer supra. generally Strouse, Colonial Gardens v. See A.2d Nursing 56, Pa. Home, Bachman, Inc. v. (filed on Be 3, 1977); June Commonwealth for Light Co., Duquesne its Citizens and Residents v. half of Lebanon (1976); v. Mt. 415, Wiest 469 Pa. 366 A.2d 242 (1974); Ex District, A.2d School 457 Pa. Szekeres, 114 A.2d 176 Laundry cellent Pa. Co. special requests that Similarly, appellants’ enjoined declared election 1975 be of November ap against Appellants’ null action and void are moot. Rappaport pellees Tucker, is based Fineman, Irvis and Therefore, solely we are now moot. on the claims which dismissing the affirm Court’s order the Commonwealth complaint Tucker, Irvis and appellees Fineman, as to Rappaport.12 II, for 3: “Senators shall elected art. 11. See Pa.Const. Representatives of two years term of four term years.” McCormack, 23 L.Ed. S.Ct. 395 U.S. Powell restraining injunction (1) requested petitioners an (1969), 2d 491 Repre- executing House of respondents States from United

Case Details

Case Name: Sweeney v. Tucker

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 8, 1977

Citation: 375 A.2d 698

Docket Number: 120

Court Abbreviation: Pa.