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LEMON v. KURTZMAN

February 22, 1972

Alton J. LEMON et al.
v.
David H. KURTZMAN et al.



Per Curiam

Pursuant to the decision of the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), this Court entered summary judgment in favor of plaintiffs and restrained payments to church-related schools under the Non-public Elementary and Secondary Education Act, 24 P.S. ยงยง 5601-5609, for services performed or costs incurred subsequent to June 28, 1971. *fn1" At that time, the issue before the Court was whether church-related schools in Pennsylvania which provided secular educational services to non-public school children during the school year 1970-1971 were entitled to reimbursement for those services rendered, notwithstanding the decision of the Supreme Court in this case. We concluded that the church-related schools were entitled to such reimbursement for the reasons hereinafter stated.

The initial dispute between plaintiffs and defendants concerned the legal standard to be applied in determining this issue. Plaintiffs argued, on the one hand, that once a statute has been declared unconstitutional, it is void ab initio and "contracts" which depend upon it for their consideration are void. On the other hand, defendants argued that no such principle of absolute retroactivity exists and the question whether a determination of the unconstitutionality of a statute be retroactively applied must be governed by certain considerations in order to obviate any hardship and injustice. Defendants further argue that applying this standard to the facts of this case, the non-public schools are entitled to reimbursement for the school year 1970-1971.

 Plaintiffs espouse the "Blackstonian" view, *fn2" which was followed by the Supreme Court in Norton v. Shelby County, 118 U.S. 425, 6 S. Ct. 1121, 30 L. Ed. 178 (1886), wherein the Court held that an unconstitutional statute "confers no rights; it imposes no duty; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed". 118 U.S. at 442, 6 S. Ct. at 1125. The general rule underwent a gradual erosion, culminating in the 1930s with Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360 (1932) and Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S. Ct. 317, 84 L. Ed. 329 (1940). *fn3" In Great Northern, the Court rejected the argument that the Constitution was abridged by the lower court's refusal to apply its ruling retroactively, holding at page 364 of 287 U.S., at page 148 of 53 S. Ct.:

 
"We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly (cf. Tidal Oil Co. v. Flanagan [263 U.S. 444, 44 S. Ct. 197, 68 L. Ed. 382]) that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted." (citations omitted) *fn4"

 Similarly, in Chicot, the Court asserted that broad statements as to the effect of a determination of unconstitutionality, such as that in Norton v. Shelby County, supra, must be taken with qualifications. The Court further stated at page 374 of 308 U.S., at page 318 of 60 S. Ct.:

 
"The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, -- with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from the numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

 Whatever vestige of the "Blackstonian" view of absolute retroactivity remained after Great Northern and Chicot was ultimately laid to rest by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), *fn5" wherein the Court held that "the accepted rule today is that in appropriate cases the Court may, in the interest of justice, make the rule prospective". 381 U.S. at 628, 85 S. Ct. at 1737.

 Plaintiffs, however, argue that the law does not permit the recognition of the validity of any action taken under a statute which was declared unconstitutional on its face. This contention was aptly answered by the Court in Linkletter, which was faced with this identical question at pages 628 and 629 of 381 U.S., at page 1737 of 85 S. Ct.:

 
"Petitioner contends that our method of resolving those prior cases demonstrates that an absolute rule of retroaction prevails in the area of constitutional adjudication. However, we believe that the Constitution neither prohibits nor requires retrospective effect. As Justice Cardozo said, 'We think the federal constitution has no voice upon the subject.'"

 Consequently, no different standard of retrospective application is to be applied in the area of constitutional adjudication than in any other area of law.

 In order to determine whether agreements to reimburse church-related schools made prior to the Court's decision in this case may be performed, we must "weigh the merits and demerits in [this] case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, supra, at 629, 85 S. Ct. at 1738. We must further consider "questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application", Chicot County Drainage District v. Baxter State Bank, supra, 308 U.S. at 374, 60 S. Ct. at 319, in addition to equitable considerations of hardship and injustice. Great Northern R. Co. v. Sunburst Oil & Refining Co., supra, 287 U.S. at 364, 53 S. Ct. 145. Thus, we must examine the decision of the Supreme Court in this case to determine whether prospective application would in any way undermine its underlying basis and its rationale and, if not, then balance the equities between the parties.

 In Lemon, the Supreme Court summarized its three-pronged test applicable where statutes are challenged under the Establishment Clause of the First Amendment:

 
"First, the statute must have a secular legislative purpose; second, its principle and primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 [88 S. Ct. 1923, 1926, 20 L. Ed. 2d 1060] (1968); finally, the statute must not foster 'an excessive government entanglement with ...

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