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OBIE SNIDER v. RICHARD THORNBURGH (09/29/81)

decided: September 29, 1981.

OBIE SNIDER, FRED L. HOFFMAN AND BARBARA V. BARKER, APPELLANTS,
v.
RICHARD THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, ET AL.



No. 51 May Term, 1979, Appeal from the Order of the Commonwealth Court filed August 31, 1979, at 55 C.D. 1979

COUNSEL

Michael I. Levin, Harrisburg, for appellants.

John B. Koontz, Bedford, for appellee Bedford Co. Bd. of Elec.

Gordon Stoup, Bedford, pro se.

Robert Meehan, Leonora M. Smith, Chief Counsel, Timothy J. Holland, Harrisburg, for appellee Auditor General.

Harry C. Elseeser, Jr., Lewis P. Sterling, York, for appellee York Co. Bd. Elections.

David Grine, pro se.

John W. Blasko, Bellefonte, for appellee Centre Co. Bd. Elections.

John C. Uhler, York, pro se.

Robert Hoffman, Harrisburg, for appellee Com. Officials except Atty. Gen.

Bruce A. Rosenfield, Philadelphia, for amicus curiae.

Carol F. Graebner, Edwin L. Klett, Pittsburgh, for Allegheny County Bar -- amicus curiae.

Eagen, C. J., O'Brien, Roberts, Nix, Larsen and Kauffman, JJ. Eagen, former C. J., did not participate in the decision of this case. Kauffman, J., joins in this opinion. Nix, J., joins in this opinion, except to the extent that this opinion removes the exclusion of appointed, non-compensated officials from the definition of "public official." Larsen and Flaherty, JJ., join in this opinion, except to the extent that this opinion refuses to reach the due process claim involving financial disclosure by family members. Roberts, Justice, dissenting.

Author: Per Curiam; O'brien

[ 496 Pa. Page 161]

OPINION OF THE COURT

I.

Mr. Chief Justice O'Brien files an opinion modifying the determination of the Commonwealth Court to the extent that the Commonwealth Court held that 65 P.S. § 402 did not violate the Equal Protection Clause in excluding appointed,

[ 496 Pa. Page 162]

    non-compensated officials from the definition of "Public Official." Mr. Justice Larsen, Mr. Justice Flaherty and Mr. Justice Kauffman join in this portion of the opinion.

Mr. Justice Roberts files an opinion which dissents from the above portion of the opinion of Mr. Chief Justice O'Brien, as well as the portion of that opinion announcing the remedy.

Mr. Justice Nix files an opinion which dissents from the above portion of the opinion of Mr. Chief Justice O'Brien.

II.

The Court being equally divided on whether to reach the due process issue concerning financial disclosure by the family members of a Public Official or a candidate for public office, the remaining portions of the order of the Commonwealth Court are affirmed.

Mr. Chief Justice O'Brien files an opinion supporting affirmance on the issue of financial disclosure by family members which Mr. Justice Nix and Mr. Justice Kauffman join.

Mr. Justice Roberts files an opinion supporting reversal on the issue of financial disclosure by family members which Mr. Justice Larsen and Mr. Justice Flaherty join.

Mr. Justice Flaherty files an opinion supporting reversal on the issue of financial disclosure by family members.

III.

Accordingly, the determination of the Commonwealth Court is modified to the extent it held the statute is not violative of the Equal Protection Clause, and the exclusion of appointed, non-compensated officials from the definition of "public officials" is removed. In all other respects, the determination of the Commonwealth Court is affirmed and the Order of the Commonwealth Court sustaining appellees' preliminary objections and dismissing appellants' Amended Petition for Review is affirmed.

[ 496 Pa. Page 163]

OPINION

O'BRIEN, Chief Justice.

This is an appeal from an order entered in the Commonwealth Court sustaining appellees' preliminary objections and dismissing appellants' Amended Petition for Review. The facts germane to the matters before us now are as follows:

The Act of the Legislature popularly known as the "Public Officials Ethics Law"*fn1 was signed by the Governor on October 4, 1978, to become effective January 1, 1980. The Act, generally, proscribes certain conduct involving conflicts of interest on the part of public officials, and, accordingly, requires that candidates for public office, elected officials and certain appointed officials file financial disclosure statements with a State Ethics Commission. The Commission is created by the Legislature in the Act to implement and administer its provisions.

Subsequent to certain preliminary proceedings not relevant here, appellants, on February 21, 1979, filed an Amended Petition for Review invoking the original jurisdiction of Commonwealth Court. Appellants are elected school directors in three school districts in the Commonwealth, and by their Petition sought relief for themselves individually and for all members of a class to which they belong: elected school directors. Named as respondents were the Governor, the Treasurer, the Auditor General and the Attorney General of the Commonwealth, the State Ethics Commission and its members individually, and the county boards of elections and district attorneys as a class. By their petition appellants alleged the Act is violative of the Constitutions of the Commonwealth and of the United States and sought relief in three counts: declaratory relief, injunctive relief; and, in a count in quo warrantor, the ouster from office of certain members of the Ethics Commission.

[ 496 Pa. Page 164]

Respondents below, appellees herein, filed preliminary objections to the Amended Petition for Review in the form of a petition raising a question of jurisdiction, a demurrer and a motion to strike for lack of conformity to a rule of court. Following a hearing on appellees' preliminary objections an order was entered, on August 31, 1979, sustaining the preliminary objections and dismissing appellants' petition.

Hence this appeal.

I. The Equal Protection Claim

Appellants claim initially that the Act is violative of the Equal Protection Clause of the United States Constitution. Appellants argue an unconstitutional effect is worked by a definitional item in section two of the Act. The statute provides that a "public official" may not take the oath of office or perform any of his official duties until he has filed a "statement of financial interests." The disclosure requirement thus established must be fulfilled by all candidates for elective office as well as by appointed officials who receive compensation for the performance of their duties.

But the Act further provides that "'public official' shall not include any appointed official who receives no compensation other than reimbursement for actual expenses." 65 P.S. § 402. Appellants claim that by this definitional distinction the Legislature has created a constitutionally impermissible classification. The dichotomy perceived and complained of by appellants, is as follows: Alone among the political subdivisions of this Commonwealth, the City of Philadelphia is authorized to,*fn2 and has chosen to,*fn3 appoint rather than elect its school directors. Additionally, vacant, unexpired elective school board positions throughout the Commonwealth are filled, pursuant to the Public School Code, by appointment.*fn4

[ 496 Pa. Page 165]

Since all school board members in Pennsylvania serve without compensation,*fn5 the classification created by the terms of the Act becomes apparent. On the one hand are all the elected school directors in Pennsylvania, to whom the disclosure provisions of the Act apply. And on the other are the school directors of Philadelphia and a certain number of temporarily appointed school directors elsewhere, all of whom are exempt from the strictures of the Act.

The issue for our resolution is whether the classification so drawn violates the constitutional guarantee of equal protection of the laws.

The parties urge upon us distinct standards of review, and we preliminarily address that question. Appellees advocate utilization of a standard we recently invoked in Springfield School District v. Department of Education, 483 Pa. 539, 397 A.2d 1154 (1979). Therein, relying upon the opinion of the Supreme Court in United States v. Maryland Savings Share Insurance Corporation, 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4 (1970), we stated that "legislative classification will not fail under an equal protection analysis 'if any state of facts rationally justifying it is demonstrated to or perceived by the courts.'" Springfield School District, supra, 483 Pa. at 568, 397 A.2d 1154. We thus concluded, again relying upon the Supreme Court, McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), that "the equal protection clause will set aside statutory classifications 'only if no grounds can be conceived to justify them.'" Springfield School District, supra, 483 Pa. at 568, 397 A.2d 1154 (emphasis in original).

Appellants, on the other hand, propound a different test, and direct our attention to Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1971). In Moyer, we held:

[ 496 Pa. Page 166]

"The Equal Protection Clause . . . does not deny the state the power to treat different classes of persons in different ways, but does deny the right to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly Page 166} unrelated to the objective of the particular statute. The classification must be reasonable, not arbitrary, and must rest upon 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." Id., 462 Pa. at 400-401, 341 A.2d 441 (emphasis supplied).

Again, in Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974), we stated that "if a legislative classification bears no reasonable relationship to the purposes of the legislation, the equal protection clause is violated." Id., 458 Pa. 301, 328 A.2d 851.

That the parties before us argue opposing standards of review is not surprising; our prior decisions frequently appear to be inconsistent. On the one hand are cases which speak of a "rational basis" test, see, e. g., Springfield School District, supra; Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975), and on the other are those which require a "fair and substantial relation" between the classification and the legislative objective, see, e. g., Moyer v. Phillips, supra; In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974).

Both lines of cases, notwithstanding their seeming disparity, spring from a common source. This common source is manifested in what is perhaps the most fundamental principle of statutory construction: the presumption that the legislature has acted constitutionally. This presumption "reflects on the part of the judiciary the respect due to the legislature as a co-equal branch of government." School District of Deer Lakes v. Kane, 463 Pa. 554, 562, 345 A.2d 658, 662 (1975). Accordingly, courts properly defer to the legislature in the exercise of its function and may refuse to enforce a statute only if it " clearly, palpably, and plainly violates the constitution." Tosto v. Pennsylvania Nursing Home Loan Agency, supra.

The presumption of constitutionality and the concomitant judicial deference to the legislature applies where the enactment

[ 496 Pa. Page 167]

    in question is challenged on equal protection grounds or otherwise. But in the absence of a claim that the classification is "suspect," or that the statute implicates "fundamental rights," there is no requirement, or, indeed, justification, for utilizing different standards of review in different cases.*fn6

That our prior decisions apparently apply different tests may perhaps be traced to language contained in Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 ...


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