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RICHARD C. FRAME ET AL. v. ROBERT E. SUTHERLAND (10/25/74)

decided: October 25, 1974.

RICHARD C. FRAME ET AL., PLAINTIFFS,
v.
ROBERT E. SUTHERLAND, DEFENDANT. RICHARD C. FRAME ET AL., PLAINTIFFS, V. PETER ELISH, DEFENDANT. RICHARD C. FRAME ET AL., PLAINTIFFS, V. GRACE SHIRLEY HATCH, DEFENDANT. RICHARD C. FRAME ET AL., PLAINTIFFS, V. EGIDIO CERELLI, DEFENDANT



COUNSEL

William E. Woodside, Edward Friedman, Harrisburg, for petitioners.

Israel Packel, Atty. Gen., Dept. of Justice, Lawrence J. Beaser, Counsel to the Governor, Harrisburg, for respondents.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, and Nix, JJ. Manderino, J., took no part in the consideration or decision of this case. Nix, J., filed a dissenting opinion. Pomeroy, J., concurs in the result. Eagen, J., dissents.

Author: Roberts

[ 459 Pa. Page 179]

OPINION

We are presented with challenges to the validity of certain appointments made by the Governor without the consent of the Senate. We hold that, because the appointments were not made "during the recess of the Senate," they are invalid.

At 2:30 p. m. on December 31, 1973, the Pennsylvania Senate voted to adjourn its 1973 session. The adjournment resolution, adopted by a vote of 24-22, purported to adjourn the Senate sine die.*fn1 The resolution did not contemplate, provide for, or receive the consent of the House of Representatives. In fact, the House met and conducted business on December 31 and the morning of January 1, 1974. At noon that day, the one hundred fifty-seventh General Assembly expired and the one hundred fifty-eighth was mandated to begin.*fn2

Several hours after the adjournment of the Senate, the Governor, pursuant to article IV, section 8(b) of the Constitution, made approximately 680 appointments, including defendants Grace Hatch as a member of the Civil Service Commission, Robert E. Sutherland as a member of the Pennsylvania Game Commission, Peter Elish as a member of the Milk Marketing Board, and Egidio Cerelli as a member of the Pennsylvania Turnpike Commission.

[ 459 Pa. Page 180]

In January, 1974, plaintiffs, three members of the Senate, instituted these actions in quo warrantor in the Commonwealth Court to test the rights of the named defendants to hold the offices to which they had been appointed on December 31. Plaintiffs also petitioned this Court to assume plenary jurisdiction of the matter;*fn3 we granted their petition on February 6, 1974, and heard argument on April 22, 1974.*fn4

This controversy depends for its resolution on the construction of article IV, section 8 of our Constitution, which in pertinent part provides:

"(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate.

"(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session . . . . If the vacancy happens during the session of the Senate except as otherwise provided in this Constitution, he shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy."

The procedure established by section 8(a) is the submission of appointments to the Senate for the consent of two-thirds of its members. Section 8(b) creates an exception to that general rule, exempting certain appointments

[ 459 Pa. Page 181]

    from the requirement of senatorial confirmation. The Governor, it is provided, may fill vacancies in offices to which he appoints without submitting the appointments to the Senate by granting temporary*fn5 commissions "during the recess of the Senate." If the Senate is not in recess when the appointments are made, the general requirement of senatorial confirmation is applicable. That requirement is suspended only during "the recess of the Senate." Thus, the validity of an unconfirmed appointment depends on whether the Governor's power to issue temporary commissions was triggered by "the recess of the Senate."

The phrase "recess of the Senate" in this context does not include an interruption or break following a daily meeting. If it did, the Governor would have a choice in the appointment procedure he could utilize. Obviously, unless the Senate undertook 24-hour sittings, there would be a "recess of the Senate" for at least some period of time every day of the year when unconfirmed appointments could be made.

The relationship of the temporary appointment power and the permanent appointment power indicates, however, that the Governor is not to have that option. It is clear that the draftsmen preferred appointments be made by gubernatorial nomination-senatorial consent for traditional checks-and-balances purposes.*fn6 However, public

[ 459 Pa. Page 182]

    necessity might require a position be filled after the Senate had terminated its session, when the constitutionally preferred procedure could not be followed. To provide an appointment process for occasions when the preferred procedure is thus inadequate,*fn7 the Constitution permits the Governor to issue temporary commissions "during the recess of the Senate." The exception was designed for use only when the preferred procedure could not be employed. It follows that "recess of the Senate" must be limited to those periods of time when the Senate is unable to consent to appointments.

Inability to consent does not result from a break between one day's session and the next. Neither does it result

[ 459 Pa. Page 183]

    from a Friday-to-Monday interruption. Indeed, we are unable to say that any interruption during a session of the Senate renders the Senate unable to consent to appointments. Therefore, we conclude that "recess of the Senate" refers only to the final sine die adjournment at the end of the session.

This conclusion is consistent with our cases dealing with recess appointments. In Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237 (1973), the majority referred to the "final adjournment of the Senate" as the trigger which activates the temporary appointment power. In Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 493, 281 A.2d 57, 61 (1971) (Opinion in Support of the Per Curiam Order), three Justices, in comparing article IV, section 8 and article V, section 13, concluded that "recess of the Senate" and "sine die adjournment of the Senate" differed editorially only and not in substance and interpreted both to mean final adjournment. Ritenour v. Peirce, 442 Pa. 1, 10, 272 A.2d 900, 905 (1971), also recognized final adjournment as the circumstance which suspended the senatorial-confirmation requirement.

Therefore, only if the Senate had finally adjourned on the afternoon of December 31, 1973, a "recess of the Senate" existed which activated the Governor's power to issue temporary commissions and the appointments of defendants are valid. If the Senate had not finally adjourned, the requirement of senatorial confirmation was not suspended by a "recess of the Senate" and the appointments are invalid. Thus, the narrow question for decision is whether the Senate's unilateral adjournment on December 31 was a final adjournment.

We hold that the Senate's attempt to adjourn sine die failed because of the absence of consent by the House of Representatives. Our holding rests on a conclusion that the Constitution prohibits either house from ...


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