*1 systеm. Travis v. “hand-out” selves and is not a Department 2 Pa. Commonwealth Welfare, Public (1971) J., con Ct. A.2d 110, 277 (Crumlish, curring). It is therefore essential individuals ability who to their own re to contribute do in order that the limited resources habilitation so public system of the welfare can be channeled less fortunate able individuals who to rehabilitate themselves.
Accordingly, we
Order this 29th the order October, 1979, And Now, Department July of Public dated Welfare discontinuing public 10, 1978, benefits to assistance hereby Louise M. Heschke is affirmed. Zemprelli,
Edward P. State Petitioner Senator, Thornburgh, Respondent. v. Richard L. Governor, *2 President beforе 11, 1979, September Argued Judges Jr., Wilkinson, Rogers, Judge Bowman Craig Judges and MacPhail. Crttm- Blatt, DiSalle, not participate. Mencer did Jr. lish, Majority Cawley, to the James IT. Chief Counsel Pennsylvania, petitioner. for Caucus, Senate Attorney Deputy General, David H. Allshouse, Attorney Deputy Gen- Watlcins, with him Norman J. Litigation, Biester, and Edward G. eral, Chief, Civil Attorney respondent. Jr., General, October 1979: Opinion Judge Craig, *3 capacity of the his a member
Petitioner, Pennsylvania, petition Senate of has addressed this remedy original jurisdiction, judicial seeking to our against the Penn- Governor of the Commonwealth of sylvania §8(b) on the basis Article of the Penn- IY, sylvania part provides: which in Constitution,
(b) The Governor shall fill vacancies in appoints by nominating offices to which he proper person vacancy the Senate a to fill the days within 90 vacancy of the first of the and not thereafter. The Senate shall act on each legislative executive nomination within 25 days of its submission. ... If the Senate for reason fails to act a nomination sub- required mitted to it within legislative days, the nominee shall take office as if the appointment had been consented to Senate.... quoted portion
The terms are a of an amendment to proposed by joint constitution resolution of Bepresentatives Pennsylvania and House Senate May approved by on of the electorate and vote 1975. petition expiration of- of terms
The avers the respect commissions, and fice to state boards with Pennsylvania Turnpike consisting Commission, Pennsylvania Pennsylvania Liquor Control Board, Pennsylvania Game Commis- Commission, Securities hospitals and and sion the boards state state- colleges. petition alleges owned or state-related although constitutionally required that the Governоr, posi- to submit to the his Senate nominees for those despite requests by peti- tions, has not done so to him tioner.
Noting days elapsed that more than 90 since inauguration petition of the Governor, the claims gubernatorial alleged- failure to submit nominees ly deprives petitioner and all other Senators of their right duty to advise and consent respect appointment with pub- of incumbents of pleading petitioner’s lic office, interest matter is distinct general from the interest of the public. remedy, petitioner
As a asks that we order that appointees thе Governor nominate to the various positions, petitioner’s and the Senate’s advice requested also consent; is “such further relief as just appropriate.” Alternatively, in the upon argument, petitioner brief and proposes relief by declaratory judgment holding that the Governor’s *4 power appoint to has been forfeited reason of the expiration of the 90 time limit.
On behalf of the Governor respondent, as we have preliminary objections in the nature of a demurrer alleging that:
I. standing Petitioner lacks bring to this action; non-justiciable a here is
II. The appoint- gubernatorial political one because exclusively to are committed ments branch; executive 90-day provision §8 Article IV, TIT. of directory not manda- and of the constitution tory; and the ab- will lie because No action
IV. any legal duty any or in the sence by petitioner.1 possessed right aspects having proceeding one treat this We declaratory equity, judgment on mandamus, Pennsylvania sought. of the remedies As basis Supreme Corleto, in Francis v. 418 Pa. Court stated (1965): A.2d 417, 421, repre- high prerogative Mandamus is a writ extraordinary remedy senting an which will grantеd in It not be doubtful cases. will issue only specific legal where there is a clear and right plaintiff duty corresponding a in adequate defendant and a want of other appropriate remedy. In man- addition, only compel perform- damus be used purely ance of ministerial or duty. (Citations omitted.) equitable declaratory having
For or binding orders equally stringent. the standards are effect, will consider objec- We the issues raised tions the order above listed.
I. petitioner, capacity Does in his as a member Pennsylvania, legal Senate lack interest the sub- 1 Resрondent against petitioner also included a claim of laches objections. claim, as one of appropriately The laches more presented preliminary as an affirmative defense rather than a according objection, pressed to Pa. R.C.P. No. has not been here.
48 pur- to standing have that he does not matter so
ject action?2 sue this main their place both question, parties
For
this
Beal,
v.
Commonwealth
Wilt
on
26 Pa.
reliance
Ct.
that
court held
in
this
363 A.2d
298,
876
exer
on
matter
been
having
his vote
the
a legislator,
injunctions
to obtain
no
had
longer
standing
cised,
concerning
operation
lеgislatively-authorized
followed the
facility.
principle
mental-health-care
We
Pitts
Ine. v.
Parking Garage,
City
Penn
Wm.
burgh, 464 Pa.
to
[Legislators, legislators, granted standing challenge executive when actions specific powers unique to their under functions the Constitution are diminished or interfered with. ... To but give one familiar example, under the Pennsylvania Constitution, members of the Senate duty to approve or dis- certain approve appointments made by the Governor. Interference with performance of this duty would be an injury to members of the Senate sufficient to give each Senator standing protect the injury to his or her 2 Closely objection concerning related to the standing is a separate petition, respondent submitted on behalf of Governor, disqualification petitioner’s for counsel, ground on the it proper petitioner represented by is not for to be the chief counsel majority employed Senate, caucus of the state, be petitioner standing cause lacks capacity. his official senatorial Beal, Wilt v. 26 306-7, Pa. Commonwealth Ct. 363 A.2d (1976). 881-82 against or right’ to vote
‘constitutional appointee. executive of an confirmation 305-306, atCt. Commonwealth Beal, Pa. Wilt v. omitted.) (Footnotes 881. at A.2d presented (1939) Miller, 307 U.S. Coleman legislators analogy, holding that state a consistent *6 breaking a tie standing vote to the attack in governor, of their interest view a lieutenant maintaining their the effectiveness of vote. dispute
Respondent the Gov- that, does not after appointment, an a a con- made Senator has ernor has appointee seeing that the stitutional interest the advice and consent of the take office without above-quoted noting Senate, dictum from v.Wilt supra, quo Beal, and the decisions in the two warranto of Frame v. 459 Sutherland, 177, cases Pa. A.2d 327 (1974) Stroup Kapleau, 623 v. 455 171, Pa. 313 (1973), relating gubernatorial appoint- A.2d 237 to during ments recess of the Senate. On the other hand, respondent argues, a Senator can have no interest in the matter before the Governor submits thе name of a nominee.3 remembering equity
However, the maxim that ought that deems done question to be done, of each Senator’s standing interest and is here ob- viously dependent on whether or not the legal duty has a to submit nominations to the Senate 90-day period within the or at time.
Granting
power
appointment
that
is in-
trinsically an
Daly
executive function,
Hemphill,
v.
411 Pa. 263,
191
270,
A.2d
(1963),4
840
and that
Inaction
an
standing
executive
confer
Kennedy
as in
Sampson,
v.
(DC
511 F .2d
1974),
concerning
Cir.
a U.S. Sena
challenge
pocket
tor’s
veto.
4 Attempts
provide by
legislative
statute
involvement
power
Governor’s
appointment
have not been
upheld.
Hammond,
Bradner v.
(Alaska, 1976).
II. reaching point, before However, even we poses non-justi- must first determine if this case рolitical question, judi- ciable outside the leen of the cial branch. premise
To
this
governing
articulate the doctrinal
parties
Sweeney
issue, both
cite
Pa.
Tucker, 473
*7
(1977)
493,
As well out, the Baker case, supra, 369 U.S. at comprehensively lists the criteria which make a non-justiciable, as fol- lows : textually
1. A
demonstrable commitment of the issue to a
gov
coordinate
(parallel
ernmental branch
to the criterion in
Sweeney, supra,
2. ques resolving the manageable for standards Baker, (echoing another statement tion duty asserted to whether at U.S. judi judicially breach identified and its can be determined); cially an deciding Impossibility without
3. clearly policy kind of a determination initial nonjudicial discretion; for undertaking Impossibility an court
4. еxpressing independent without resolution respect branches; for the lack of other unquestioning A for adherence 5. need already political made; decision potentiality embarrassment from 6. or pronouncements various multifarious question; on or branches one Impossibility right protection for 7. supra, being judicially (Baker, asserted molded 198); impossibility 369 U.S. at that is, of an appropriate judicial remedy.
Approaching the issue with these criteria as tools analysis, for we find the first i.e., criterion — appointments whether the submission of has been textually cоmmitted to for executive self-monitor- ing great help. of no Our constitutional text here —is both legislative involves executive branches, explicit suggestion it contains no of commitment exclusive sense self-monitoring. Indeed, the amendment’s addition of extrinsic controls, newly imposed terms of time limits both the executive and suggests mainly Senate, *8 nominating consenting appoint- elements the ment function are now wholly not to be left to the un- trammeled participants. discretion of the
As to the second judi- criterion, existence cially manageable provision standards, question generality an abstruse confront us with here does objective provides subjective time but criterion, or a days (and days) which themselves limits of judicially certainly manageable, de- identifiable and complexity the one- In contrast to the terminable. justiciable person-one-vote problems deemed supra, simple it Carr, Baker v. here measure passage of the time limits calendar and as almost day vacancy” simple to mark the “first point.5 starting impossibility
As to the third Baker
criterion,
deciding
making
policy
without
an initial
deter-
non-judicial
type,
mination оf a
it is clear that no
policy question
such
confronts us
either
our initial
recurring
implemen-
consideration or in
contact with
present adjudica-
tation in the future. Neither the
tion
judi-
nor future
enforcement would involve
policymaking.
wording
cial
The
of the constitutional
provision, mandatory, clearly
if
require
does not
only
timely
to act but
to act in a
fashion,
if he does choose to act; its terms do not disturb the
prerogative
executive
to leave an administrative
position unfilled if he chooses. Hence, the court not called
to command a nоmination to this or
position.
At most it would seem that we would
required only
to declare the result of not observ-
ing
point
the 90
time limit —a
to be considered
On the
of whether or
occupied
not an office
on a
vacant,
holdover basis is
resort
statutory
the constitutional or
provisions governing
specific
required.
Illustratively,
office is
statutory provision
where a constitutional or
allows an incumbent
appointed
n;;
to remain until a successor is
qualified,
there is
“vacancy”, e.g., in
borough
the case of
offices,
certain
Commonwealth
e
Lomas,
x rel.
97,
Matthews v.
302 Pа.
53 peti- course, of examining And, remedies. in further any nominees. upon to select us call not tioner does cri- Balter the fourth By as to token, the same appoint- limit on interpret time for us terion, any disre- constitute would not ment as or the spectful the executive either interference with Senate. obviously Balter criteria fifth and sixth political previous decisiоn
not no there is involved; produce our involvement followed, to be nor would pronouncements. conflicting a multitude of feasibility judicial enforce- test, On the final difficulty. special we no There would ment, can see nothing customary be in of such unusual results quo judicial such enforcement, determinations, warranto or that an office filled or nomi- otherwise, nation made is not lawful because of lateness.
Although strictly before us this decision upon preliminary objections, canwe foresee some in- terpretation questions which the constitutional lan- guage рoses application, questions itself having in its bearing some on Frankly the ease of enforcement. noting anticipate some such matters, we can the neces- sity applying provision this constitutional where, example continuing for vacancy bridges the terms governors. of two different previous Unlike the con- language stitutional pertaining appoint- to recess ments Stroup as we where, noted in v. McNair, Pa. Commonwealth (1972), Ct. Stroup sub nom. aff’d Kapleau, 455 Pa. 313 A.2d phrase happening” “vacancies vacancy meant that a “happen” continues to day, each the amendment be- fore us starting point narrows the to “the day first vacancy.” if Thus, the first vacancy occurs near the end of one Governor’s term and the vacancy remains days more than 90 before the new Governor takes consequence office, is upon the neglect to be visited former impossible an read it so would To new Governor? cases, in such interpretation it would, because absurd appointment very the con- power defeat the succeeding clearly Gov- each confers stitution duty In rightful con- or both. or ernоr as construing an struing statutes, constitutions, as *10 impossible See avoided. must be absurd or result very §1922(1). “the first At the least, 1 Pa. C.S.A. ’’ day vacancy, be not earlier be deemed to of the must vacancy might in exist than the as it first new term. each Governor’s interpretation type question,
Another of noted parties, provision is whether or not a found both mandatory reasonably implemented
could re- with spect present where, to the without judicial guidance interpretation, of a than 90 more days passed inauguration since his in and, some inception later-occurring vacancy. cases, since mandatory, imple- Should we find the rule to be retrospective 90-day counting ment it in a manner, periods days from 90 dates or more before the final positions order in being case, this would result in (for left term) by judicial vacant the balance of the gubernatorial mandate instead of discretion, certainly policy would brook sound as well as common sense. accepted it
However, is an rule that courts must retrospective have reasonable control over the effect of their implementation decisions. Even as to the prеcious fundamentals under Rights, the Bill our Supreme Negri, Court, in Commonwealth v. 419 Pa. 117, (1965) 123, 213 A.2d quoting 670, 673 Linkletter Walker, v. 381 (1965) U.S. 618, 629 has said: ‘ [W]e believe that the Constitution neither ’
prohibits requires retrospective nor effect. . . . approach ‘weigh then is to the merits and
55 prior by looking to the in each case demerits purpose question, history its of the rule operation retrospective will and whether effect, (Citation operation.’ its further or retard omitted.) supra, “the ac Linkletter said
Further,
cepted
ease,
appropriate
today
cases the
rule
is that
justice
the rule
Court
makе
the interest
prospective.”
In
473
Schreiber v.
Intermodal
dealing
(1977),
issue
Pa.
A.2d 1285
with an
614, 375
constitutionality,
Pennsylvania
of civil law
Su
preme
concept
“weighing the
Court reiterated the
inequity
retrospective application.”
The same Schreiber also out a stan- guide judicial dard to choice on the as fol- matter, : lows Company
In Chevron Oil Huson, U.S. S.Ct. 2d L.Ed. Supreme United States *11 Court stated that deciding threshold test whether a new deci- might given prospective sion application only is whether the decision establishes a new principle by of overruling law, past either clеar precedent by deciding or an issue of first im- pression clearly whose resolution was not fore- shadowed. 404 U.S. at 106, 92 S.Ct. at 355. Only principle such a new may qualify of law nonretrospective application. for (Footnote omitted.)
Here the arising issue, from a new constitutional clearly amendment, is one of impression, first not foreshadowed at all. logical
Therefore, under that of the courts retrospective to withhold operation, a solution is period 90-day no initially, that, by holding available court’s date the effective than earlier shall start appropri- especially approach A prospective order. concern major that mindful we because ate and Senators of Governors the guidance here is dis- than resolution more even future, incumbents. present involving pute question the overall as to Hence, summary by its terms matter that this we conclude justiciability, re- by self-monitoring committed to not been has If involved. of government branches spective antici- would we mandatory, be found limit is to time identi- in terms of manageable judicially it to be pate breached, and is duty arises appointive when fying in the substance involvement any judicial without made or who is to be are to be appointments what we regard appointed. Accordingly, the courts. to be avoided not justiciable one, III. Is the constitutional come to the issue: pivotal
We directory? or mandatory provision Wel- Public Department In Delaware County 383 A.2d fare, 165, 172, Pa. Ct. Commonwealth manda- out both that, we pointed although fol- are meant to be tory directory provisions non- as to the effect of lowed, a distinction arises a directory pro- because failure follow compliance does not invalidate the action but disobedience vision action clause renders illegal void. noteworthy
It provision says this fill “shall” vacancies with nominating “and 90-day period in the thereafter.” A con to be provision is considered only stitutional directory *12 the lacks insistence that phrasing when the act “shall at time or in the the manner performed be prescribed, ’’ Clark, See Commonwealth v. and no other. 7 W. & S.
57 express the func- (1844). An direction expiration time performed after tion not be requirement. limit characteristic construing Supreme Pennsylvania Court, The respect procedural a matter as time limits with Tausig amending itself, in the constitution solemn as A.2d 408, 413-14, 328 Pa. Lawrence, (1938) held: compliance
To withhold strict with dif- three months’ limitation and substitute a method of ferent advertisement which substan- tially accomplishes the would be desired result provision. rewrite It has specific language in clear, determined what change must be done to or amend funda- Nothing mental law. short a literal com- pliance with this mandate will suffice. position
Constitution has more sacred judicial interpretation than an does act of as- sembly judicial еxploration should never have as its fulcrum the basic law. Otherwise dangerous precedent by would be created substituting pronouncement the court’s own the fundamental law of the State. To hold provisions advertising require do not literal compliance danger would create that other procedural steps required by the article entirely. modified or omitted uncertainty No ‘ compromise suggested or phrase Secretary of the Commonwealth shall cause published.’ the same Any period to be less prescribed than that the section will (Emphasis original.) suffice. in the In opinion, footnote 4 Supreme of that Court quoted Cooley Constitutional (8th Limitations 159 1927), stating: Ed.,
‘But very the courts tread dangerous ground they when apply venture to the rules *13 58 directory distinguish and
which provisions a constitution. to statutes pre- usually to undertake do Constitutions except proceeding, when rules mere scribe to as essential are looked rules such given thing If directions ... done, be proceeding respecting or modes times there exercised, be should people strong presumption that the at least time designed in that be exercised it should by (Emphasis only. the Su- . . .’ mode Court.) preme by Tausig guided Town- in Middle Paxton
wereWe
Dauphin,
Borough
ship
10 Pa. Commonwealth
v.
(1973),
208
458 Pa.
326
396,
A.2d
431,
Ct.
aff’d.
opinion by
in an
President
where,
A.2d 342
quoting
passages,
Judge Bowman
the above
we held
legislature
failure of the
to act on annexa-
that the
a constitutional
within
time
laws,
limit,
tion
abro-
pre-existing
legislation.
gated
annexation
here
offered
Both briefs
for consideration
legislative
of this constitutional
some
amendment’s
history,
which we
consider even where a statute
unambiguous.
Tillery
United States ex rel.,
(3rd
1961).
Cavell, 294 F.2d
Although
Cir.
legislative
reports may
committee and
commission
legislators
considered, the remarks of individual
debate are not relevant for the obvious reason they represent only
person’s
one
view and not that
body
proposing
enacting body.
or an
Martin
Estate, 365 Pa. 280, 283, 74 A.2d
(1950);
National Transit Co. v. Boardman, 328 Pa. 450, 197
(1938);
A. 239
Tarlo’s Estate,
ernor’s by appointments (considered some history of recess problems, re- abоve) other cited of the cases language of port proceeded former to note by accompanied “indefensible §8 had been IV, Article by delay the constitu- circumvention Senate, requirement excessive the Governor tional maneuvering political Senate and the Gov- subjecting to criticism. both branches ernor,” thus *14 report had held nomina- that the Senate The stated subject overlong, being to and limit, no time tions appointments that had made to cir- Governors recess remedy proposed senatorial cumvent consent. provision appoint- was to eliminate the for recess 90-day 25-day ments and to the insert and time limits. As to the latter time we that limit, note it would dispute mandatory be hard to the nature of the 25- day imposed upon time limit the Senate. Because expiration that time limit without Senate action positive has placing the result of the nominee into mandatory inescapable. office, its nature is We find it difficult to believe that the voters who ratified and gave thus provision life to this could have understood it otherwise than to mean that both equally time limits meaningful were equally mandatory. Supreme
Our
repeatedly
Court has
held that con-
language
stitutional
interpreted
to popular
in its
people,
adopted
sense
the
who
govern-
it as their
mental charter, must have
they
understood it when
voted on it. Brereton Estate, 355 Pa. 45, 54, 48 A.2d
(1946)
868, 872
and cases cited therein; Common-
wealth v. Harmon,
Initial problems treating pro- the vision as have been considered above un- der heading judicial the feasibility matters —the vacancy logically provision when applying the ap- administrations, gubernatorial
bridges two present circum- only prospectively in the plying it а fair confront command its that stances, so present succeeding Governor each manner as well. incumbent passage manda- than as other cannot read
We fill following shall tory, terms its days nominating “by .. . within vacancies applicable vacancy” (as each made first administration) thereafter,” “and Governor’s may exercise execu- signifying his that a Governor if prerogative or not, that, to fill vacancies but tive dur- he must exercise so, to do he desires period and not ing hands, it his there- is vested after.
IY. provision the conclusion manda- From petitionеr’s right tory, nomi- it follows that period, within and not the stated nations submitted legal thereby gives interest and thereafter, confers petitioner standing herein. *15 requirement nature of the
The estab- duty, seeking that an a so action such as this, lishes binding proper remedy. declaration or a a order, preliminary objections
The must be dismissed. respondent’s Disqualifi- addition, In for Petition of Petitioner’s cation Counsel will be dismissed a as consequence petitioner of our determination that does standing bring have this action in his official capacity.
Order 29th respon- Now, this of October, 1979 And preliminary objections dent’s spondent’s and re- dismissed, Disqualification Petition for of Peti- tioner’s Counsel is dismissed. by Judge
Concurring Opinion : DiSalle respects. in all opinion majority’s I in the join before have presently that we I do not believe While here of onr decision view controversy a case or (in ns any to fill compelled not be the Governor it is equally instance), vacancies at all first de- finally clear to me that when the Governor does fill a vacancy by cide to a nomination sending Senate, immediately arise; hence, will controversy I no the merits at this hesitancy reaching In point. my view, judicial we should forestall consideration of this pressing matter it longer.1 Indeed, regrettable that, because we are here dealing with preliminary objections, we may not enter a definitive at order this time, finally dispose of this litigation. ago and, took office more than nine months alleges, important public positions
Petitioner hundreds remain vacant.
Dissenting
Opinion
Judge
President
Bowman
:
I perceive
As
no fundamental
private
constitu-
tional right raised in this
which
proceeding
is brought
by one member of the Senate of Pennsylvania
in his
capacity as a Senator
against
the Governor of the
Commonwealth and which I believe to
in-
essentially
political
volve a
question,
I believe it is
one
the judiciary should not interfere.
See Baker v. Carr,
U.S.
(1962); Sweeney v. Tucker,
The majority well analyzes Baker and Sweeney as applied to this case with respect to their articulated standards if determining political should be judicially resolved. However, *16 in my view, before reaching issue one must first determine if person bringing cause asserts a violation politi right. If not,
of a fundamental judicially if even resolved not be should cal judicial interference articulated standards politiсal question be met. otherwise would into a Pennsyl body granted right the Senate appointments, Pa. gubernatorial to confirm vania my opinion, §8(b), a funda not, art. IV, Const. right an Senator. mental individual asserted, cause the relief Consideration sought, argument filed the oral advanced briefs my parties doubt in mind that leaves no political judiciary one is a issue raised someday may proper posture have to resolve one context. case not the to do so. This respectfully peti- I dissent and would dismiss the tion for review. Allen
Jonathan Petitioner Claiborne, v. Common- Pennsylvania, Unemployment Compen- wealth of Respondent. sation Board Review, Judges on briefs, 3, 1979, Submitted October sitting Je. Je., Wilkinson, Ceumlish, Mencee, panel three. as a