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KAUFFMAN ET AL. v. OSSER (11/12/70)


decided: November 12, 1970.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 2946, in case of Sylvia Kauffman and Phyllis Gitlin v. Maurice S. Osser, Thomas P. McHenry and Louis Menna et al.


Sheldon W. Farber, for appellants.

John McNally, Jr., with him Levy Anderson and Matthew W. Bullock, Jr., for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen and Mr. Justice O'Brien join in this dissent.

Author: Jones

[ 441 Pa. Page 152]

On May 15, 1970, Sylvia Kauffman and Phyllis Gitlin (appellants), instituted an action under the Uniform Declaratory Judgments Act*fn1 in the Court of Common Pleas of Philadelphia City against three named individuals who constitute the County Board of Elections and one individual, its chief clerk (election officials), in the City of Philadelphia.*fn2

This action was brought by the appellants who purported to act on their own behalf as registered electors of the Democratic party in Philadelphia who intend to vote in person at the polls in the November 1970 election and the purpose of the action was to enjoin and restrain the election officials from issuing or recognizing a certain class of absentee ballots on the ground

[ 441 Pa. Page 153]

    that the provisions of the Absentee Ballot Law*fn3 authorizing such class of ballots are invalid under the federal and state constitutions.

Preliminary objections filed by the election officials were sustained by the court below and the appellants' complaint dismissed. From that order, the instant appeal stems.

Appellants urge several reasons why various provisions of the absentee ballot statute are constitutionally infirm: (1) that, insofar as the statute permits qualified electors and their spouses while on "vacations", on election dates, to vote by absentee ballots, the statute violates Article VII, Section 14, of the Pennsylvania Constitution;*fn4 (2) that the provisions of the statute providing for the manner of challenging absentee ballots (i.e., the time when challenges must be made, the paucity of time within which a challenge may be entertained, the grounds for challenge and the lack of an appropriate method of reviewing the propriety of the challenges), violate both the equal protection and due process clauses of the U. S. Constitution and Article I, Section 5 of the Pa. Constitution;*fn5 (3) Section 8(f)

[ 441 Pa. Page 154]

    of the statute which requires a $10 deposit to challenge each absentee ballot violates both the 14th Amendment to the U. S. Constitution and Article I, Section 5 of the Pa. Constitution.*fn6

The court below, in an opinion supporting its order, stated that: (a) it adopted the reasoning of two lower court cases (Haakenson v. Parkhouse, C. P. Montgomery County, No. 69-12670 and Pisciotta v. County Commissioners, Common Pleas, Philadelphia City, No. 2313 May Term, 1969) which upheld the validity of the ten dollar deposit necessary under the statute, to challenge an absentee ballot;*fn7 (b) "With regard to the extension of the privilege to vote by absentee ballot to those on vacation and their spouses, [it failed] to see how [appellants] are affected. The possible harm to be suffered by [appellants] is too speculative to give them standing to pursue this action." To the latter reason initially we address our inquiry.

Do the present appellants have a justiciable interest or standing to maintain the present action? The validity and constitutional conformity of a statute is not subject to attack in vacuo. Only a person or persons

[ 441 Pa. Page 155]

    having a justiciable interest may launch such attack. The Uniform Declaratory Judgments Act -- under which provisions this action was brought -- provides in pertinent part: " Any person . . . whose rights, status, or other legal relations are affected by a statute, . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relationships thereunder." (Emphasis supplied). (Act of 1923, supra, § 2, 12 P.S. § 832). See: Schoenbrun v. Nettrour, 360 Pa. 474, 61 A.2d 868 (1948).

Appellants take the position that, if qualified electors and their spouses while on "vacation" at the time of election are permitted to vote by absentee ballot or if the statutory requirements concerning the manner of exercising challenges to absentee ballots are enforced, the appellants and all other qualified Democratic electors in Philadelphia who intend to vote in person at the polls at the November 1970 election will have their votes diluted by the absentee votes and, thereby, the allegedly invalid provisions of the statute will "affect" their rights.

Questions of standing and justiciable interest arise not only in connection with the institution of litigation at the nisi prius level but also in connection with the right to challenge, at the appellate level, determinations made by subordinate courts. Although statutes governing such rights vary in language, it is generally well settled that an interest to be justiciable must be more than a general interest and must be a direct, substantial and present interest, as contrasted with a remote or speculative interest. See: Beauty Hall v. State Board of Cosmetology, 418 Pa. 225, 231-232, 210 A.2d 495 (1965); 22 Am. Jur. 2d § 11, p. 849. See also: Man O'War R. Asso. v. State H.R. Commission, 433 Pa. 432, 250 A.2d 172 (1969); Price v. Phila. Parking Authority,

[ 441 Pa. Page 156422]

Pa. 317, 325-329, 221 A.2d 138 (1966); Dwyer v. Dilworth, 392 Pa. 123, 127-128, 139 A.2d 653 (1958); White v. Phila., 408 Pa. 397, 402, 184 A.2d 266 (1962).

Many years ago in Smith v. McCarthy, 56 Pa. 359, 362 (1867), we said: "Even supposing the act to be as alleged, unconstitutional, private parties cannot interfere by bill to ask it to be so declared, unless on account of some special damage or injury to them in person or property." Any objection to the validity of a statute must be raised by one having the right to do so. See: Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267 (1963); Knowles's Estate, 295 Pa. 571, 580-582, 145 A. 797 (1929); Gentile v. Philadelphia & R.R. Co., 274 Pa. 335, 118 A. 223 (1922); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. of P. L. Rev. 1033 (1968).

Moreover, it is hornbook law that a person whose interest is common to that of the public generally, in contradistinction to an interest peculiar to himself, lacks standing to attack the validity of a legislative enactment. See: Doremus v. Bd. of Education, 342 U.S. 429, 434, 72 S. Ct. 394 (1952); Ex parte Levitt, 302 U.S. 633, 58 S. Ct. 1 (1937); Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16 (1917); Knowles's Estate, supra; St. Bartholomew's P.E. Church Charter, 260 Pa. 284, 103 A. 826 (1918); Calvary Bible Presbyterian Church v. Bd. of Regents, 72 Wash. 2d 912, 436 P. 2d 189 (1967), cert. den., 393 U.S. 960, 89 S. Ct. 389 (1968). See also: 16 Am. Jur. 2d § 122, p. 318; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265 (1961). In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), while holding there was standing, the United States Supreme Court framed the precise issue to be: "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the

[ 441 Pa. Page 157]

    presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing." 369 U.S. at 204, 82 S. Ct. at 703.

We have examined with great care appellants' claim to standing and to a justiciable interest to maintain this action. In our opinion, the interest of appellants is not peculiar to them, is not direct, and is too remote and too speculative to afford them, either in their individual capacities or in their claimed class representative capacity, a standing to attack these statutory provisions. Basic in appellants' position is the assumption that those who obtain absentee ballots, by virtue of statutory provisions which they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and thus will cause a dilution of appellants' votes. This assumption, unsupported factually, is unwarranted and cannot afford a sound basis upon which to afford appellants a standing to maintain this action. While the voter-appellants in Baker v. Carr were able to demonstrate injury distinct from other voters in the state, the interest which appellants claim is nowise peculiar to them but rather it is an interest common to that of all other qualified electors. In the absence of any showing of a legal standing or a justiciable interest to maintain this action, we cannot permit their challenge to the validity of this statute.

In view of the conclusion reached, we do not, nor need we, express any opinion as to the validity of the statutory provisions which this action attacks.

Order affirmed.


Order affirmed.

Dissenting Opinion by Mr. Justice Cohen:

The legislature may enact laws governing the conduct of elections. Winston v. Moore, 244 Pa. 447, 91

[ 441 Pa. Page 158]

Atl. 520 (1914). However, "no legislative enactment may contravene the requirements of the Pennsylvania or United States Constitutions." Shankey v. Staisey, 436 Pa. 65, 68-9, 257 A.2d 897, 898, cert. denied, 396 U.S. 1038 (1970). Article VII, Section 14 of our Constitution provides that absentee ballots may be cast by those away from their election districts because "their duties, occupation or business require them to be elsewhere." The Absentee Ballot Law, Act of December 11, 1968, P. L. [ILLEGIBLE WORD], § 3(z-3), 25 P.S. § 2602(z-3) (Supp. 1970), provides that "duties, occupations or business" shall include, inter alia, vacations and thus electors and their spouses on vacation on election day are permitted to vote by absentee ballot. The statute is thus a clear and unconscionable violation of the Pennsylvania Constitution, which the majority condones and I must condemn. Absent a constitutional amendment, such enactment cannot constitutionally stand.

This is such a clear constitutional violation and such an open invitation to fraud that justice and the sanctity of the ballot demand a remedy. In the sensitive area of the electoral process we should recognize, as the United States Supreme Court did in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), and as our Court did in our own reapportionment case, Butcher v. Bloom, 415 Pa. 438, 203 A.2d 556 (1964), that what is justiciable and what is political is a mere fiction not to be applied unless justice so dictates. See, Jaffe, The Citizen As Litigant In Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968);*fn1 Jaffe, Standing To Secure Judicial Review:

[ 441 Pa. Page 159]

Public Actions, 74 Harv. L. Rev. 1265 (1961).*fn2 We should reach the issues here and not retreat behind the facade of standing. If there is to be judicial protection of the sanctity of the ballot from the unconstitutional exercise of legislative authority in establishing voting procedures, standing should be permitted and the issues determined.

I dissent.

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