decided: August 31, 1979.
OBIE SNIDER ET AL., PETITIONERS
MILTON J. SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS
Original jurisdiction in case of Obie Snider, Fred L. Hoffman, and Barbara V. Barker v. Milton J. Shapp, Governor of the Commonwealth of Pennsylvania; Robert E. Casey, Treasurer of the Commonwealth of Pennsylvania; Al Benedict, Auditor General of the Commonwealth of Pennsylvania; Barton A. Fields, Secretary of the Commonwealth of Pennsylvania, Centre County Board of Elections, the Bedford County Board of Elections, York County Board of Elections; and John Glatz, John T. Saylor, Grover Spearley, Alva Hostetler, Stanley Bollman, I. Stanley Claycomb and Carroll H. Leppo, Robert L. Bowers and William C. McKinley, Jr., as members of the Centre, Bedford and York County Boards of Elections.
Michael I. Levin, with him William Fearen, and Cleckner & Fearen, for petitioners.
Robert B. Hoffman, Deputy Attorney General, with him Norman J. Watkins, Deputy Attorney General, for respondents.
Bruce A. Rosenfield, with him, of counsel, Schnader, Harrison, Segal & Lewis, for amicus curiae, Common Cause.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Craig and MacPhail. Judges Blatt and DiSalle did not participate. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge MacPhail. Dissenting Opinion by Judge Mencer.
[ 45 Pa. Commw. Page 340]
On October 4, 1978, the Governor signed into law what is popularly known as the "Public Officials Ethics Law" (herein simply the Ethics Law or Act)*fn1 proscribing certain conduct involving conflicts of interest and to that end requiring that candidates for public office, elected officials and certain appointed officials file financial disclosure statements with a State Ethics Commission (hereafter the Commission) created to implement and administer the Act.
Petitioners, elected members of three school districts in the Commonwealth, have filed a class action
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in this Court's original jurisdiction against the Governor, Treasurer, Auditor General, Attorney General, the Commission and its members individually, and the county boards of election and district attorneys as a class seeking injunctive and declaratory relief against implementation of the Act alleging the Act violates various provisions of the Pennsylvania and United States Constitutions. Following the filing of an amended petition for review,*fn2 respondents have filed preliminary objections presently before this Court. The Governor, Treasurer, Attorney General and the Commission have lodged a petition raising the question of this Court's jurisdiction and preliminary objections in the nature of a demurrer. The Auditor General has filed separate preliminary objections relating to petitioners' claims against him.*fn3 For the reasons set forth we will sustain the preliminary objections of the Governor, Treasurer, Attorney General and the Commission.
[ 45 Pa. Commw. Page 342]
Petitioners Snider and Hoffman aver that each is an elected public official subject to the provisions of the Act, either as a candidate seeking re-election in the general election or as an incumbent school director and each avers that he will resign rather than comply with the disclosure provisions of the Act. Petitioner Barker avers that compliance with the financial disclosure provisions of the Act is against her husband's wishes and will cause severe harm to her marriage. Petitioners allege the Act on its face violates Article I, Sections 5 and 8, Article III, Section 28 and Article IV, Section 8 of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution. Petitioners also allege the implementation of various provisions of the Ethics Law will cause irreparable damage and injury to them in that it will cause an expenditure of tax money for an unlawful purpose and will cause an improper and unwarranted interference with petitioners' "right to run and serve as school directors." The amended petition for review further includes a count in quo warrantor requesting that the three individual members of the Commission appointed by the Governor be removed from office.
The stated purpose of the Ethics Law is to "strengthen the faith and confidence of the people of the State in their government" and to assure the people that "the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust."*fn4 The Act then prohibits eight categories of conduct,*fn5
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requires the filing of annual financial statements by public officials, candidates and certain public employees,*fn6
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establishes an independent, nonpartisan Ethics
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Commission*fn7 and provides for civil and criminal penalties for violations of the restricted activities provision and the disclosure requirements.*fn8
We will consider the respondents' preliminary objections to the constitutional challenges posed regarding these provisions of the Act seriatim.
I. The Vagueness Challenge
Petitioners have sought injunctive and declaratory relief alleging that the Act is so vague and indefinite in the terms it employs to define a crime that enforcement would constitute a violation of the due process
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clause of the Fourteenth Amendment of the United States Constitution.
Respondents initially question whether an action for declaratory judgment is appropriate in this case and secondly whether petitioners have standing to challenge these provisions. In particular, respondents argue that no justiciable controversy and no antagonistic claims indicating imminent and inevitable litigation are present in this case.
The stated purpose of the Declaratory Judgments Act, 42 Pa. C.S. § 7531 et seq. is to settle and afford relief to any person from uncertainty and insecurity with respect to right, status and legal relations affected by a statute. We believe sufficient uncertainty exists with respect to the facial validity of these provisions of the Ethics Law to meet the threshold jurisdictional requirements of the Declaratory Judgments Act. Further, we find that petitioners and the class of school directors they represent are sufficiently affected by the provisions of the Act to provide standing to challenge its validity on vagueness grounds. See Singer v. Sheppard, 33 Pa. Commonwealth Ct. 276, 381 A.2d 1007 (1978).
In this context, however, we must note that a statute challenged on vagueness grounds is presumed to be constitutional and will not be declared otherwise unless it clearly, palpably and plainly violates the Constitutions of this Commonwealth or the United States. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). The allegations of petitioners in this regard are necessarily limited to the facial invalidity of the Act, since petitioners' averments contain no facts indicating enforcement of the provisions against petitioners or that any of the petitioners are engaged in conduct arguably within the proscription of the Act. In this posture, we must conclude that petitioners have failed to sustain their burden in this regard.
[ 45 Pa. Commw. Page 347]
The sole support underpinning petitioners' vagueness challenge is a reference to an opinion of the Attorney General which attempted to interpret various provisions of the Act. To find this Act unconstitutional on such a thin reed would in our judgment amount to construing a statute in a vacuum. Further, an examination of Section 3 of the Act, 65 P.S. § 403 containing activities restricted by the Ethics Law leads us to conclude that the section is neither so vague nor inconsistent on its face as to deny due process. While the applicability of Section 3 to particular factual situations must necessarily await regulations and opinions of the Commission, the conduct proscribed by Section 3 is in our view, clearly and plainly set forth. We believe, therefore that judicial interpretation of these sections must await cases which properly present concrete questions for resolution.
II. Validity of Disclosure Requirements
Petitioners contend the disclosure requirements of Sections 4 and 5 of the Ethics Law, infringe on their right of privacy as guaranteed by the Bill of Rights made applicable to the states by the Fourteenth Amendment of the United States Constitution and the right to be free from unreasonable searches guaranteed by Article I, Section 8 of the Pennsylvania Constitution. Petitioners argue that the constitutional guarantees require that the legislature relate those areas of disclosure to sources of income of public officials which might be expected to give rise to a conflict of interest. Respondents have demurred to these allegations for failure to state a claim for which relief may be granted.
The right of privacy asserted here by petitioners has been defined by the United States Supreme Court as "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599
[ 45 Pa. Commw. Page 348]
(1977). The Court has recognized that this right of privacy can be implicated in required disclosure of information concerning financial matters, see Buckley v. Valeo, 424 U.S. 1 (1976), and further, extends to those matters of a personal nature of public officials which are not related to any acts done by them in their personal capacity, see Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Further, our Supreme Court in Annenberg v. Roberts, 333 Pa. 203, 2 A.2d 612 (1938) recognized that the right of privacy possessed by private individuals as guaranteed by the Pennsylvania and United States Constitutions extends to financial records so that a subpoena of such records issued by a legislative committee must be limited to such disclosure as is reasonably required to meet the general purpose of the legislative inquiry.
While many state courts in considering the validity of similar state statutes and plans have devised various means of analyzing these constitutional claims,*fn9
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we believe the Court in Annenberg, supra, provides the appropriate vehicle to test petitioners' claims in this area. The rule is simply: Where it is alleged that legislation impinges on the right of privacy, the question in each instance depends upon the relevancy of the information sought to the purpose of the legislature in enacting the statute. A determination of relevancy in this regard requires that this Court measure the interest to be served by the disclosure requirement against the interest it infringes upon. See Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978).
The right of privacy, simply expressed as "the right to be let alone," is essentially an interest which exists independent of any concrete or harmful damage flowing from public disclosure of private matters. But, it is a right that is protected by degrees and in kind. Thus, personal finances and the right to be free from regulation or disclosure have been accorded less protection on the value scale of privacy than purely personal interests involving marriage or the family. Compare Buckley v. Valeo, supra, with Roe v. Wade, 410 U.S. 113 (1972).
Conversely, the interest of the public in knowledge of their government runs to the core of our political system. It is the right to be informed concerning matters bearing upon the fitness of an individual to serve in a public office and hold a public trust that is being
[ 45 Pa. Commw. Page 350]
vindicated by the requirement that private interests be disclosed. As the Court stated in Fritz v. Gorton, supra at 296, 517 P.2d at 924:
The crux of evaluating the capabilities and motivations of any candidate for public office or incumbent public official is information bearing upon fitness for office. We need not fear that any candidate or official may not apprise the electorate of his capabilities. Opponents, of course, will emphasize any lack of ability. (Emphasis in original.)
On this point, we think it plain that to limit disclosure to financial interests that relate only to government activities or to the functions and duties of a particular officeholder would not guarantee the absence of a conflict or enhance the confidence of the people in an honest and impartial government. See Section 1 of the Act, 65 P.S. § 401.
The language of the Supreme Court of Illinois in Stein v. Howlett, supra at 577, 289 N.E. 2d at 413, on the question of relevancy is particularly persuasive:
[T]he plaintiff questions how the disclosure of a business connection, unrelated to any activity of the State serves to avoid the conflicts of interest hoped to be disclosed and obviated by the statute. We acknowledge that the disclosure of a business connection which is truly unrelated to any State activity cannot help to achieve the desired purpose. But who is to say whether or not there is a business connection or relation with the State? Who is to say that the business within the State which does not do business directly with the State, but which supplies another company which does, has no connection with the State? Who is to say that a capital gain from the sale of an asset to a stockholder of a company doing business with the State has
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no connection with the position of a public official?
Similarly, given the myriad of public posts in the Commonwealth which involve positions of public trust, we think it clear beyond serious argument that the legislature would face an insurmountable task of tailoring each disclosure requirement to each particular post. Further, it would be anomalous to suggest that individuals determine for themselves what financial matters are relevant to a public position. See Fritz v. Gorton, supra.
It is true, as petitioners argue, that the disclosure provisions impose a substantial burden on those who would hold public office and requires that these individuals forego a large measure of privacy regarding their personal and family finances in so doing. It may be that some dedicated public officials of unimpeachable integrity and honesty will resign and others forego public service rather than comply with the statute. It is plain, however, that these observations reflect upon the wisdom of the legislature in so acting, rather than upon their power to act.
Having concluded that Sections 4 and 5 of the Act are reasonably aimed at the legislative purpose of the statute, we must sustain respondents' preliminary objection to petitioners' claim.
III. Validity of Gubernatorial Appointments
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Respondents next attack petitioners' claims for injunctive and declaratory relief and the count in quo warrantor against the implementation of Section 6(a) of the Ethics Law, contending that petitioners lack standing to assert a violation of Article IV, Section 8 of the Pennsylvania Constitution, or alternatively, that no constitutional violation is present. While we have determined that petitioners have alleged sufficient grounds to establish standing, see Wm. Penn Page 352} Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), we perceive no constitutional violation present in the authority granted the Governor under Section 6(a) of the Act.
The law regarding whether or not senatorial confirmation is required of permanent gubernatorial appointments to administrative boards and commissions has been fully set forth by this Court in Crisconi v. Shapp, 5 Pa. Commonwealth Ct. 275, 280 (1972). There, this Court stated:
It is clear to us that the adoption of Article IV, Section 8, as it presently reads, was for the purpose of eliminating the previously required senatorial approval of appointments by the Governor to all appointive offices to which the Governor could appoint under the Constitution or by statute. Senatorial approval is now necessary only in those instances where senatorial approval is specifically mandated by the Constitution or by statute. (Emphasis in original.)
Since Section 6(a) of the Ethics Law expressly provides that gubernatorial appointments to the Commission shall be made without Senate approval, we find no apparent conflict with Article IV, Section 8 of the Pennsylvania Constitution.
We find petitioners' argument that Crisconi, supra, is no longer viable in light of the intervening amendment to Article IV, Section 8*fn10 and Frame v. Sutherland, 459 Pa. 177, 327 A.2d 623 (1974) and Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237 (1973) is without merit. Both the amended portion of Section 8 and the above cited cases deal with the problem of temporary gubernatorial appointments. See Section 8(b) of Article IV. The gubernatorial appointments made here were made pursuant to Section 8(a)
[ 45 Pa. Commw. Page 353]
and are fully in accord with the constitutional commands of that section.
IV. Article I, Section 28 claim
Under Article I, Section 28 of the Pennsylvania Constitution a statute may not impose unequal benefits or burdens upon members of society based upon their sex. Petitioner Barker contends that because her husband is opposed to the disclosure of financial information concerning their family, she will suffer irreparable harm to her marriage if forced to comply with Sections 4 and 5 of the Act. Further, petitioners argue that because husbands are generally in control of the family finances and generally the "breadwinners" of the household, the statute has the practical effect of deterring women from participating fully in political activity by reason of the disclosure requirements of Sections 4 and 5.
The equal rights clause of the Pennsylvania Constitution is offended only when sex is used as a classifying tool. Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974). The provisions of the Ethics Law place equal burdens on both sexes. Wives as well as husbands might object to public disclosure of the family's finances and wives as well as husbands might deter their spouses from public office rather than agree to public disclosure. The burdens upon the family unit as well as the individual might be great, but these burdens place no more weight upon one sex than the other.
We conclude, therefore, that petitioners' averments are insufficient to support a claim under Article I, Section 28.
V. Equal Protection-Due Process
Petitioners also allege that because elected school directors are subject to the Act and appointed school directors are not, the Ethics Law violates the equal
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protection and due process clauses of the Fourteenth Amendment of the United States Constitution. Petitioners argue that members of the Philadelphia School District and appointed members of other school districts in the Commonwealth are not "public officials" as defined by the Act in that these school directors are expressly excluded under Section 2 of the Ethics Law, 65 P.S. § 402 since they are appointed officials who receive no compensation other than reimbursement for actual expenses.*fn11
The equal protection clause of the Fourteenth Amendment does not deny the state the power to treat different classes of persons different ways; it merely requires that where a classification is made it must be reasonable and not arbitrary in that the classification must be based on some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced will be treated alike. Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975). President Judge Bowman, speaking for this Court in Danson v. Casey, 33 Pa. Commonwealth Ct. 614, 628, 382 A.2d 1238, 1244-45 (1978), aff'd, 484 Pa. 415, 399 A.2d 360 (1979) noted:
The application of this standard has resulted in a test, whereby a legislative classification will be given judicial sanction if some reasonable basis can be deduced to support it. The test being not wisdom, but good faith in the classification. Seabolt v. Commissioners of
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Northumberland County, [187 Pa. 318 at 323, 41 A.2d 22 at 23 (1898)]. As a corollary, a rule has arisen that an act of the General Assembly cannot be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. Longwood Villa Nursing and Convalescent Home Appeal, 26 Pa. Commonwealth Ct. 620, 364 A.2d 976 (1976). (Emphasis in original.)
Further, where a statutory classification is attacked for under-inclusiveness, as here, the equal protection clause does not require that the state must choose between attacking every aspect of the problem or not attacking the problem at all. Dandridge v. Williams, 397 U.S. 471 (1970). "Legislatures may implement their program step by step . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations." New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (citations omitted).
Within this constitutional framework, we turn to an examination of the statute. The challenged portion of Section 2 of the Act defines "Public Official" as:
Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense, or to otherwise exercise the power of the State or any political subdivision thereof. 'Public official' shall not include any appointed official who receives no compensation other than reimbursement for actual expenses.
It is apparent, at least to this Court, that this classification of "public official" subject to the Act is related
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to the declaration of Section 1 of the Act that "any effort to realize personal financial gain through public office other than compensation provided by the law is a violation of [the public] trust" and the stated purpose of the Act to assure the people that all holders of public office and candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. In this vein, we note that the Act essentially creates four classes of "officials." Thus, all candidates for any elective office and all elected officials, whether compensated or not, are subject to the Act, while only certain appointed officials who receive compensation must comply with the Act. The distinction has been neatly, but not irrationally, drawn. Candidates for elective office, by choice, place their qualifications and credentials before the voters in a free and open contest with other candidates; information concerning their qualifications is certainly relevant to and bears a rational relationship with the purpose of the statute. Similarly, appointed officials subject to the Act, i.e., officials who are compensated and have authority to disburse public funds are in a clear position to realize personal financial gain through public office. While petitioners rightly point out that with respect to certain appointed school directors this results in some practical inequality and inconsistency, such an effect will not result in a denial of equal protection where, as here, there is some reasonable basis to justify the legislative classification.*fn12 See Dandridge, supra.
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We conclude, therefore, that respondents' preliminary objections to petitioners' equal protection claim must be sustained.
VI. The Right To Hold Public Office
Petitioners' alleged constitutional infirmity in regard to the right to hold public office is based on the contention that the Ethics Law violates Article I, Section 5 and Article III, Section 27 of the Pennsylvania Constitution and the right to a republican form of government. We must agree with respondents that petitioners have failed to state a cause of action premised on any of these constitutional guarantees.
Article I, Section 5 prohibits the interference with the "free exercise of the right of suffrage." Petitioners argue that the Act limits the field from which voters may choose school directors and hence, the constitutional right is implicated. However, a variety of statutes validly establish qualifications for elective office and hence limit the field of candidates. The inapplicability of this section to laws establishing such criteria for holding office was clearly enunciated by our Supreme Court in Winston v. Moore, 244 Pa. 447, 458, 91 A. 520, 523 (1914) where the Court stated:
This duty is enjoined upon the candidate and not upon the elector. The rights of the voter are only incidentally involved. . . . No man need be a candidate for office unless he chooses to be, and if he desires to become a candidate, it is difficult to see what constitutional right of the individual elector has been subverted by requiring a candidate to make affidavit of facts pertinent to his candidacy.
Similarly, the guarantees of Section 27 of Article III of the Constitution are likewise inapplicable to the Ethics Law since this provision merely prohibits extending the term or altering the salary or emoluments of public office.
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Finally, petitioners argue that Section 3(b) of the Act, 65 P.S. § 403(b) infringes upon the right to a republican form of government in that this section can be construed to prohibit any campaign contributions made to a candidate. Petitioners' argument in this regard is similar to the claims made earlier with regard to allegations of vagueness in Section 3 as a whole. While stretching the imagination of the creative mind might lead to the conclusion that Section 3(b) would prohibit campaign contributions, an equally reasonable conclusion is that this section merely prohibits the buying and selling of votes and influence. We conclude petitioners' allegations in this regard must await concrete cases for review.
Accordingly, we will enter the following
And Now, August 31, 1979, the preliminary objections are hereby sustained and petitioners' Amended Petition for Review is hereby dismissed.
Preliminary objections sustained. Petition dismissed.
Dissenting Opinion by Judge MacPhail:
I respectfully dissent. I can find no rational basis for the distinction between elected and compensated appointed officials on the one hand and uncompensated appointed officials on the other which is drawn by Section 2 of the Act of October 4, 1978 (Act), P.L. 883, as amended, 65 P.S. § 402. Therefore, I would hold that the Act violates Petitioners' equal protection rights*fn1 and is unconstitutional.
The praiseworthy purposes of the Act, as set forth in Section 1, 65 P.S. § 401, are twofold: (1) to assure that public officials do not realize personal financial gain through their offices and (2) to strengthen public faith and confidence in government by assuring that an official's financial interests will present neither a conflict nor the appearance of a conflict of interest
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with the public trust. The purposes of the Act are so important to the integrity of our governmental process and to the public's support of that process that I can see no rational basis for excluding appointed officials merely because they receive no direct compensation from the State or political subdivision they serve.
If the purposes of the Act are to be served it must apply to all public officials, elected or appointed, compensated or uncompensated, who exercise the power of the State or of any political subdivision.*fn2
Dissenting Opinion by Judge Mencer:
I respectfully dissent. I agree with nearly all that Judge Wilkinson, Jr., has so well written for the majority, but I cannot agree that the Ethics Law*fn1a does not violate the equal protection clause of the Fourteenth Amendment of the United States Constitution.
The imposition of the burden of financial disclosure is placed upon elected school directors but not upon appointed school directors. Thus, an appointed school director possessing the same power as an elected school director, beside whom he sits at the school
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board meeting, and subject to the same temptations to abuse that power, need not make the financial disclosure required of the elected school director. In view of the objectives of the Ethics Law,*fn2a there does not seem to me to be any rationale to including the elected school director and excluding the appointed school director from the requirements of the Ethics Law.*fn3 The majority views this distinction as being "neatly, but not irrationally drawn." I would view it as being too neatly drawn to pass constitutional standards.
Likewise, although I recognize the justification for the classification of cities, I consider those reasons to have no relevancy here. The Ethics Law is intended to "strengthen the faith and confidence of the people of the state in their government." It is simply not a reasonable or rational classification, to my mind, that that purpose is intended to stop at the boundaries of the City of Philadelphia, where all school directors are appointed. The stated purpose of the Ethics Law
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is no less compelling, depending upon the size of the school district, and I cannot perceive the rationale of requiring school directors throughout the Commonwealth to be subject to the Ethics Law but exempting those in Philadelphia from its provisions.