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EDWARD P. ZEMPRELLI v. RICHARD L. THORNBURGH (10/29/79)

decided: October 29, 1979.

EDWARD P. ZEMPRELLI, STATE SENATOR, PETITIONER
v.
RICHARD L. THORNBURGH, GOVERNOR, RESPONDENT



Original jurisdiction in case of Edward P. Zemprelli, State Senator v. Richard L. Thornburgh, Governor.

COUNSEL

James H. Cawley, Chief Counsel to the Majority Caucus, Senate of Pennsylvania, for petitioner.

David H. Allshouse, Deputy Attorney General, with him Norman J. Watkins, Deputy Attorney General, Chief, Civil Litigation, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Wilkinson, Jr., Rogers, Blatt, DiSalle, Craig and MacPhail. Judges Crumlish, Jr. and Mencer did not participate. Opinion by Judge Craig. Concurring Opinion by Judge DiSalle. Dissenting Opinion by President Judge Bowman.

Author: Craig

[ 47 Pa. Commw. Page 45]

Petitioner, in his capacity as a member of the Senate of Pennsylvania, has addressed this petition to our original jurisdiction, seeking a judicial remedy against the Governor of the Commonwealth of Pennsylvania on the basis of Article IV, § 8(b) of the Pennsylvania Constitution, which in part provides:

(b) The Governor shall fill vacancies in offices to which he appoints by nominating to the Senate a proper person to fill the vacancy within 90 days of the first day of the vacancy and not thereafter. The Senate shall act on each executive nomination within 25 legislative days of its submission. . . . If the Senate for any reason fails to act upon a nomination submitted to it within the required 25 legislative days, the nominee shall take office as if the appointment had been consented to by the Senate. . . .

The quoted terms are a portion of an amendment to the constitution proposed by joint resolution of the

[ 47 Pa. Commw. Page 46]

Pennsylvania Senate and House of Representatives and approved by vote of the electorate on May 20, 1975.

The petition avers the expiration of terms of office with respect to state boards and commissions, consisting of the Pennsylvania Turnpike Commission, Pennsylvania Liquor Control Board, Pennsylvania Securities Commission, Pennsylvania Game Commission and the boards of state hospitals and state-owned or state-related colleges. The petition alleges that the Governor, although constitutionally required to submit to the Senate his nominees for those positions, has not done so despite requests to him by petitioner.

Noting that more than 90 days have elapsed since the inauguration of the Governor, the petition claims that gubernatorial failure to submit nominees allegedly deprives petitioner and all other Senators of their constitutional right and duty to advise and consent with respect to the appointment of incumbents of public office, pleading that petitioner's interest in the matter is distinct from the interest of the general public.

As a remedy, petitioner asks that we order that the Governor nominate appointees to the various positions, for petitioner's and the Senate's advice and consent; also requested is "such further relief as may be just and appropriate." Alternatively, in the brief and upon argument, petitioner proposes relief by declaratory judgment holding that the Governor's power to appoint has been forfeited by reason of the expiration of the 90 day time limit.

On behalf of the Governor as respondent, we have preliminary objections in the nature of a demurrer alleging that:

I. Petitioner lacks standing to bring this action;

[ 47 Pa. Commw. Page 47]

II. The question here is a non-justiciable political one because gubernatorial appointments are committed exclusively to the power of the executive branch;

III. The 90-day provision of Article IV, § 8 of the constitution is directory and not mandatory; and

IV. No action will lie because of the absence of any duty in the Governor or any legal right possessed by petitioner.*fn1

We treat this proceeding as one having aspects of mandamus, declaratory judgment and equity, on the basis of the remedies sought. As the Pennsylvania Supreme Court stated in Francis v. Corleto, 418 Pa. 417, 421, 211 A.2d 503, 505 (1965):

Mandamus is a high prerogative writ representing an extraordinary remedy which will not be granted in doubtful cases. It will issue only where there is a clear and specific legal right in plaintiff and a corresponding duty in defendant and a want of any other adequate and appropriate remedy. In addition, mandamus may be used only to compel performance of a purely ministerial or mandatory duty. (Citations omitted.)

For equitable or declaratory orders having a binding effect, the standards are equally stringent.

We will consider the issues raised by the objections in the order above listed.

I.

Does petitioner, in his capacity as a member of the Senate of Pennsylvania, lack legal interest in the subject

[ 47 Pa. Commw. Page 48]

    matter so that he does not have standing to pursue this action?*fn2

For this question, both parties place their main reliance on Wilt v. Beal, 26 Pa. Commonwealth Ct. 298, 363 A.2d 876 (1976), in which this court held that a legislator, his vote on the matter having been exercised, no longer had standing to obtain injunctions concerning the operation of a legislatively-authorized mental-health-care facility. We followed the principle of Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), that, to have standing, a litigant must have a direct and substantial interest in the claim, meaning that there must be some discernible adverse effect to his interest beyond the abstract interest of all citizens in obtaining compliance with the law. Judge Mencer's Wilt case opinion added:

[L]egislators, as legislators, are granted standing to challenge executive actions when specific powers unique to their functions under the Constitution are diminished or interfered with. . . . To give but one familiar example, under the Pennsylvania Constitution, members of the Senate have the duty to approve or disapprove certain appointments made by the Governor. Interference with the performance of this duty would be an injury to members of the Senate sufficient to give each Senator standing to protect the injury to his or her

[ 47 Pa. Commw. Page 49]

'constitutional right' to vote for or against confirmation of an executive appointee.

Wilt v. Beal, 26 Pa. Commonwealth Ct. at 305-306, 363 A.2d at 881. (Footnotes omitted.)

Coleman v. Miller, 307 U.S. 433 (1939) presented a consistent analogy, holding that state legislators have standing to attack the breaking of a tie vote by a lieutenant governor, in view of their interest in maintaining the effectiveness of their vote.

Respondent does not dispute that, after the Governor has made an appointment, a Senator has a constitutional interest in seeing that the appointee not take office without the advice and consent of the Senate, noting the above-quoted dictum from Wilt v. Beal, supra, and the decisions in the two quo warrantor cases of Frame v. Sutherland, 459 Pa. 177, 327 A.2d 623 (1974) and Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237 (1973), relating to gubernatorial appointments during recess of the Senate. On the other hand, respondent argues, a Senator can have no interest in the matter before the Governor submits the name of a nominee.*fn3

However, remembering the maxim that equity deems that done which ought to be done, the question of each Senator's interest and standing is here obviously dependent on whether or not the Governor has a legal duty to submit ...


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