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LEONARD E. SWEENEY v. C. DELORES TUCKER (07/08/77)

decided: July 8, 1977.

LEONARD E. SWEENEY, VINCENT S. MAZZA AND JAMES P. HEFFLEY, APPELLANTS,
v.
C. DELORES TUCKER, SECRETARY OF THE COMMONWEALTH, GRACE M. SLOAN, TREASURER OF THE COMMONWEALTH, HERBERT FINEMAN, SPEAKER OF THE HOUSE, K. LEROY IRVIS, MAJORITY LEADER OF THE HOUSE, SAMUEL RAPPAPORT, CHAIRMAN OF THE ETHICS COMMITTEE, AND JEAN FRANCIS, HOUSE COMPTROLLER



COUNSEL

Thomas A. Livingston, Dennis J. Clark, Livingston, Miller, O'Malley & Clark, Pittsburgh, for appellants.

Russell A. Davis, Harrisburg, for appellees.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., joins in this opinion and filed a concurring opinion.

Author: Roberts

[ 473 Pa. Page 497]

OPINION OF THE COURT

On August 27, 1975, the Pennsylvania House of Representatives met in special session and, by a vote of 176 to 1, expelled Leonard A. Sweeney from membership in the House.*fn1 The Speaker of the House then declared Sweeney's

[ 473 Pa. Page 498]

    office vacant and issued a writ calling for a special election on November 4, 1975.*fn2

On September 24, 1975, Sweeney and two of his former constituents (appellants) filed a complaint in equity in the Commonwealth Court, alleging that the House's action violated Sweeney's constitutional right to his House seat, his right to payment of salary and his former constituents' right to be represented in the House. Named as defendants were C. Delores Tucker, Secretary of the Commonwealth; Grace M. Sloan, Treasurer of the Commonwealth; Herbert Fineman, Speaker of the House; K. Leroy Irvis, Majority Leader of the House; Samuel Rappaport, Chairman of the House Ethics Committee; and Jean Francis, Comptroller of the House (appellees). Appellants requested injunctive relief ordering Sweeney's reinstatement with back pay and barring the special election called to fill his seat.*fn3 Appellees filed preliminary objections in the nature of a demurrer, which were argued before the Commonwealth Court on October 29, 1975.*fn4 On January 14, 1976, the Commonwealth Court sustained appellees' preliminary objections

[ 473 Pa. Page 499]

    and dismissed the complaint. Sweeney v. Tucker, 22 Pa. Commw. 642, 351 A.2d 308 (1976). We affirm.*fn5

I

On November 5, 1974, appellant Sweeney was elected to represent the Seventeenth Legislative District in the Pennsylvania House of Representatives. He took the oath of office and was seated on January 7, 1975. Three days later, he was indicted by a grand jury of the United States District Court for the Western District of Pennsylvania on one count of conspiracy to commit mail fraud and five counts of mail fraud.*fn6 On July 30, 1975, a jury found Sweeney guilty of three counts of mail fraud. The court imposed concurrent sentences of three years imprisonment on each count and fined Sweeney $3,000.00. On August 5, 1975, Sweeney filed a timely appeal from judgment of sentence in the United States Court of Appeals for the Third Circuit.*fn7

On August 18, 1975, the House Ethics Committee notified Sweeney by telegram that it would meet on August 25, 1975 to "discuss [his] future status" as a House member and invited him to attend alone or with counsel. Sweeney's counsel responded in a telegram, demanding compliance with the fifteen day notice provision of House Rule 47.*fn8

[ 473 Pa. Page 500]

The House Ethics Committee met on August 25, 1975 with neither Sweeney nor his counsel in attendance. The Committee concluded that its jurisdiction was limited to violations of the Legislative Code of Ethics and made no recommendation to the House concerning Sweeney's status.*fn9

[ 473 Pa. Page 501]

On August 27, 1975, the House met in special session to consider the following resolution:

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

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

"WHEREAS, Pursuant to Article II, Section 9 of the Constitution of the Commonwealth of Pennsylvania the House of Representatives has the exclusive power and authority to judge the qualifications of its members; therefore be it

"RESOLVED, That pursuant to the powers granted to the House of Representatives under Article II, Section 9 and Section 11 of the Constitution of the Commonwealth of Pennsylvania, the House of Representatives does hereby expel Leonard E. Sweeney as a member of the House of Representatives of Pennsylvania."

Again, neither Sweeney nor his counsel appeared. Upon the request of Representative Rappaport, Chairman of the House Ethics Committee,*fn10 the House inserted in the

[ 473 Pa. Page 502]

    record copies of Sweeney's indictment, judgment of conviction and notes of testimony of his sentencing. After debate, the House adopted the Resolution expelling Sweeney.

II -- Mootness

At the time of oral argument before this Court, Sweeney's term of office had already expired.*fn11 Therefore, appellants' prayer for an injunction ordering Sweeney's reinstatement as a member of the House of Representatives is moot. See Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966); Commonwealth ex rel. McCormick v. Swaney, 313 Pa. 565, 169 A. 883 (1934) (per curiam); Commonwealth ex rel. v. Floyd, 274 Pa. 172, 117 A. 778 (1922) (per curiam). In the absence of special circumstances, this Court will not consider such questions. Meyer v. Strouse, supra. See generally Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (filed June 3, 1977); Commonwealth for and on Behalf of its Citizens and Residents v. Duquesne Light Co., 469 Pa. 415, 366 A.2d 242 (1976); Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974); Excellent Laundry Co. v. Szekeres, 382 Pa. 23, 114 A.2d 176 (1955). Similarly, appellants' requests that the special election of November 4, 1975 be enjoined and declared null and void are moot. Appellants' action against appellees Tucker, Fineman, Irvis and Rappaport is based solely on the claims which are now moot. Therefore, we affirm the Commonwealth Court's order dismissing the complaint as to appellees Tucker, Fineman, Irvis and Rappaport.*fn12

[ 473 Pa. Page 503]

It does not follow, however, that the entire case is moot. "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969), citing E. Borchard, Declaratory Judgments 35-37 (2d ed. 1941). Even though some issues in a case have become moot, a court will consider the remaining "live" issues. Powell v. McCormack, supra; Keystone Building Corp. v. Lincoln Savings and Loan Association, 439 Pa. 444, 266 A.2d 648 (1970). Since Sweeney has a continuing interest in back pay for the period he was deprived of office, we conclude that the controversy remains a live one. Powell v. McCormack, supra; Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). Sweeney's back pay claim against House Comptroller Francis is not moot.*fn13

III

House Comptroller Francis asserts that the Speech or Debate Clause of the Pennsylvania Constitution, Pa.Const.

[ 473 Pa. Page 504]

    art. II, § 15, is an absolute bar to this suit. In the alternative, the House Comptroller contends that this action is not justiciable because the Pennsylvania Constitution commits the power to expel a member exclusively to the House of Representatives. We disagree with both contentions and find it necessary to reach the merits of Sweeney's claim that the House deprived him of his rights under the United States Constitution. For convenience, we shall discuss these issues in the above order.

A. The Speech or Debate Clause

Pa.Const. art. III, § 15, provides:

"The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place." (emphasis added).

This Court recently observed that the text of the Pennsylvania Speech or Debate Clause is essentially the same as its counterpart in the federal Constitution, U.S.Const. art. I, § 6. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977). Accordingly, in order to determine whether Sweeney's action against the House Comptroller is barred by Pa.Const. art. II, § 15, we seek guidance from the federal cases which clarify the policies underlying the federal Speech or Debate Clause.*fn14

Although the Speech or Debate Clause of the United States Constitution has its roots in English history,*fn15 "it

[ 473 Pa. Page 505]

    must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government." United States v. Brewster, 408 U.S. 501, 508, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). The Supreme Court has stated that the Clause is designed to protect "the independence and integrity of the legislature." United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 754, 15 L.Ed.2d 681 (1966); accord, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 2024, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. at 507-08, 92 S.Ct. at 2535; Tenney v. Brandhove, 341 U.S. 367, 373-74, 71 S.Ct. 783, 786-87, 95 L.Ed. 1019 (1951). The legislative immunity created by the Clause "insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation." Powell v. McCormack, 395 U.S. at 503, 89 S.Ct. at 1954. The Speech or Debate Clause has been read broadly in order to effectuate its purposes. See Eastland v. United States Servicemen's Fund, supra; Gravel v. United States, supra (Clause applies to legislative aide for conduct which would be protected legislative act if performed by the legislator himself); United States v. Johnson, supra; Tenney v. Brandhove, supra; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880). But cf. Doe v. McMillan, supra (conduct determined to be outside the legislative sphere); Gravel v. United States, supra (same); United States v. Brewster, supra (same). The Clause "prohibits inquiry into those things generally said or done in the House or Senate in the performance of official duties and into the motivation for those acts." United States v. Brewster, 408 U.S. at 512, 92 S.Ct. at 2537; accord, Eastland v. United States Servicemen's Fund, 421 U.S. at 501, 95 S.Ct. at

[ 473 Pa. Page 5061820]

; Doe v. McMillan, 412 U.S. at 311, 93 S.Ct. at 2024; Gravel v. United States, 408 U.S. at 624, 92 S.Ct. at 2626; Powell v. McCormack, 395 U.S. at 502, 89 S.Ct. at 1954; United States v. Johnson, 383 U.S. at 179, 86 S.Ct. at 755; Kilbourn v. Thompson, 103 U.S. at 204.

In evaluating the House Comptroller's assertion that the Speech or Debate Clause of the Pennsylvania Constitution is an absolute bar to this suit, we bear in mind the principle that the "[l]egislative immunity [created by the Speech or Debate Clause] does not . . . bar all judicial review of legislative acts." Powell v. McCormack, 395 U.S. at 503, 89 S.Ct. at 1954, citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Even where an action against a legislator is barred by the Speech or Debate Clause, legislative employees who participate in unconstitutional activity are responsible for their actions; that the legislative employees are acting pursuant to express orders of the legislature does not bar judicial review of the underlying legislative decision. Powell v. McCormack, supra; see Kilbourn v. Thompson, supra. As the Supreme Court stated in Powell:

"The purpose of the protection afforded legislators is not to forestall judicial review of the legislative action but to insure that legislators are not distracted or hindered in the performance of their legislative tasks by being called into court to defend their actions."

395 U.S. at 505, 89 S.Ct. at 1955.

In Powell, the petitioners asserted that the resolution passed by the United States House of Representatives excluding Adam Clayton Powell from the House was unconstitutional. The Supreme Court held that the action against those House employees carrying out the resolution which excluded Powell ...


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