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decided: October 28, 1981.


Nos. 4, 30, 31, 32, 33, 34, 35, 36, 37, 44, 45, 46, 47, 48, 49, 50, 51, 52 M.D. Misc. Docket 1981, Petition for Review in the Nature of a Quo Warrantor Action


Michael T. McCarthy, Senate Democratic Caucus, Harrisburg, for petitioners.

Allen C. Warshaw, Harrisburg, for respondents.

Thomas L. Wenger, Harrisburg, for intervenors.

O'Brien, Chief Justice.

Author: O'brien

[ 496 Pa. Page 249]


Petitioners in the instant action are five state senators who voted against the confirmation of Respondent Daniels as a member of the State Tax Equalization Board. Other respondents include 17 other successful nominees. Two state senators who voted to confirm respondents' appointments and the Senate of the Commonwealth of Pennsylvania have been granted leave to intervene. Invoking our original jurisdiction pursuant to 42 Pa.C.S.A. § 721(3) (Purdon 1981), petitioners filed a Petition for Review in the Nature of Quo Warrantor seeking to oust Respondent Daniels from her seat. Similar actions were filed against the other respondent nominees, and our decision in the initial action will be dispositive as to those as well. Having considered the matter presented in the petition, we uphold the validity of the challenged executive appointments and accordingly deny the relief requested by petitioners.

The events giving rise to this action, which are not in dispute, took place on the Senate floor during the 1981 Session of the 165th General Assembly. Governor Thornburgh nominated Respondent Daniels by a letter to the

[ 496 Pa. Page 250]

Senate dated December 24, 1980. Initially, the nomination was tabled, but it was reconsidered on January 27, 1981, when a vote was taken. The affirmative votes of a majority of the members elected to the Senate were required to confirm her appointment under 71 P.S. § 67.1(d)(4) (Purdon Supp. 1981). The nomination received 25 "yeas" and 22 "nays," and the President of the Senate, finding that the requisite vote of a constitutional majority had been obtained, ruled the appointment confirmed.

Respondent's Zemprelli objected to the Chair's ruling, arguing that the constitutional majority should be computed on the basis of the total number of members "elected" to the Senate, 50, rather than on the number then in office, 48,*fn1 and that consequently the affirmative vote of 25 senators was insufficient to seat Respondent Daniels. The President based his ruling on Senate Rule XXII, subparagraph 8, 104 Pa.Code § 11.22(i), which provides "[a] majority of the Senators elected shall mean a majority of the Senators elected, living, sworn, and seated." Since 25 constituted a majority of the 48 senators then in office, the President ruled that Respondent Daniels' nomination had achieved the majority vote mandated by Article IV, section 8(a) of the Pennsylvania Constitution. That section provides:

"The Governor shall appoint a Secretary of Education and such other offices as he shall be authorized to appoint. The appointment of the Secretary of Education and of such other officers as may be specified by law, shall be subject to the consent of two-thirds or a majority of the members elected to the Senate as is specified by law.

Petitioner Zemprelli appealed the Chair's ruling and, after debate, the Senate sustained it by a vote of 25 to 22. Zemprelli's subsequent motion for reconsideration of the nomination was defeated. This quo warrantor action ensued.

It is evident from the foregoing that the entire controversy before us turns on a single question of constitutional

[ 496 Pa. Page 251]

    interpretation, namely the meaning of the phrase "a majority of the members elected to the Senate" in the context of Article IV, section 8. Before we may engage in such interpretation, however, we must first determine whether petitioners have standing to maintain this action. If we answer in the affirmative, we must then decide whether the dispute before this Court presents a "political question" not amenable to judicial review.

I. Standing

Challenges to petitioner's standing to maintain the instant action, while not clearly articulated, have nonetheless been raised. Respondents allege that petitioners failed to plead the "special interest" required of private parties seeking to maintain a quo warrantor action,*fn2 but in fact have an interest in the actions complained of no greater than that of the public at large.

We discussed this special interest requirement in Stroup v. Kapleau, 455 Pa. 171, 174, 313 A.2d 237, 238-239 (1973):

"An action in '[q]uo warrantor can be instituted to determine the title to public office only by the Attorney General, the District Attorney or a private individual who has a special interest as distinguished from the interest of the public generally.' Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 108, 232 A.2d 729, 733 (1967) (emphasis added). In Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933), this Court stated: 'To invoke the issuance of a writ of quo warrantor the relator, therefore, must show in himself an interest in the controversy . . . . He must possess some peculiar, personal interest aside from his general interest as a member of the public.' Id., 311 Pa. at 345, 166 A. at 879 (emphasis added). Article IV, section 8(a), of the Pennsylvania Constitution provides: 'The Governor shall appoint an Attorney General, a Superintendent of Public Instruction

[ 496 Pa. Page 252]

    and such other officers as he shall be authorized 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.' (Emphasis added.)

"Under the above constitutional provision, each member of the Senate has an individual right to confirm or reject certain gubernatorial appointments. Each Senator has an interest in such appointments aside from that Senator's interest as a member of the general public. We, therefore, conclude that the appellants in this case, all members of the Senate of the Commonwealth of Pennsylvania, had standing to commence this action in quo warrantor."

Respondents argue that petitioners were afforded the opportunity to exercise their power as legislators by voting on the nomination, and, having voted, that their "special interest" ceased to exist. Where the voting process itself is not, as here, under attack, this argument might be persuasive. See e. g., Metcalf v. National Petroleum Council, 407 F.Supp. 257 (D.D.C. 1976), aff'd, 553 F.2d 176 (D.C.Cir. 1977); Wilt v. Beal, 26 Pa. Commw. 298, 363 A.2d 876 (1976); cf. Public Citizen v. Sampson, 379 F.Supp. 662 (D.D.C. 1974), aff'd, 515 F.2d 1018 (D.C.Cir. 1975). In Stroup v. Kapleau, supra, the appointments contested had been made without the advice and consent of the Senate. In the instant action, petitioners' argument that their advisory power and thus their effectiveness as legislators has been impaired appears to be grounded on the theory that their votes were in effect "diluted."*fn3 There exists at least a possibility that the

[ 496 Pa. Page 253]

Senate's interpretation of the constitutional majority requirement has resulted in some cognizable injury to petitioners in their legislative capacity.

Moreover, disposition of the substantive issue in the instant action will determine whether or not petitioners' effectiveness as legislators was in fact impaired. See e. g., Kennedy v. Sampson, 511 F.2d 430, 433 (D.C.Cir. 1974). Under general standing requirements, petitioners have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962); accord, Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, 961 (1968).

Respondents also challenge petitioners' standing by asserting that petitioners' interest is sheerly "political" rather than personal; that what is at stake here is not individual rights but political power.*fn4 In response to this assertion we need only reiterate our statement in Stroup v. Kapleau, supra, 455 Pa. at 175, 313, A.2d at 239, that "each member of the Senate has an individual right to confirm or reject certain gubernatorial appointments." Where it is alleged that such a right has been violated, we need not inquire into petitioners' motives for asserting it. See e. g., Vitagraph Co. of America v. Swaab, 248 Pa. 478, 493, 94 A. 126, 132 (1915); Raughley v. West Jersey & S.R. Co., 202 Pa. 43, 47, 51 A. 597, 598 (1902).

Accordingly, we conclude that petitioners have alleged sufficient interest in the outcome of the instant action and have standing to bring it before this Court.

II. Political Question

We now proceed to respondents' contention that the issue raised by petitioners involves a non-justiciable political question. The political question doctrine is generally considered

[ 496 Pa. Page 254]

    to derive from the principle of separation of powers,*fn5 discussed most recently by this Court in Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977):

"A basic precept of our form of government is that the executive, the legislature and the judiciary are independent, co-equal branches of government. Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971) (plurality opinion); Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 (1969) (plurality opinion). The dividing lines among the three branches 'are sometimes indistinct and are probably incapable of any precise definition.' Stander v. Kelley, 433 Pa. at 421-22, 250 A.2d at 482 (plurality opinion). Under the principle of separation of the powers of government, however, no branch should exercise the functions exclusively committed to another branch. See Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90 (1937); Bailey v. Waters, 308 Pa. 309, 162 A. 819 (1932). See generally Stander v. Kelley, supra; Townships of Springdale & Wilkins v. Mowod, 23 Pa. Commw. 298, 352 A.2d 194 (1976), rev'd on other grounds, [474] Pa. [82], 376 A.2d 983 [1977]; Jones v. Packel, 20 Pa. Commw. 606, 342 A.2d 434 (1975)."

Id., 473 Pa. at 507-508, 375 A.2d at 705 (footnote omitted).

While the concept of standing focuses on the litigant and his relationship to the claim asserted, the political question doctrine is concerned instead with the claim itself. An excerpt from a recent attempt at synthesis of the case law in this rather elusive area of constitutional law may shed some light on the appropriateness of invoking the doctrine in the instant action:

"[The political question doctrine] does not mark certain provisions of the Constitution as off-limits to judicial interpretation. But it does require federal courts to determine whether constitutional provisions which litigants would have judges enforce do in fact lend themselves to

[ 496 Pa. Page 255]

    interpretation as guarantees of enforceable rights. To make such a determination, a court must first of all construe the relevant constitutional text, and seek to identify the purposes the particular provision serves within the constitutional scheme as a whole. At this state of the analysis, the court would find particularly relevant the fact that a constitutional provision by its terms grants authority to another branch of government; if the provision recognizes such authority, the court will have to consider the possibility of conflicting conclusions, and the actual necessity for parallel judicial and political remedies. But ultimately, the political question inquiry turns as much on the court's conception of judicial competence as on the constitutional text. Thus the political question doctrine, like other justiciability doctrines, at bottom reflects the mixture of constitutional interpretation and judicial discretion which is an inevitable by-product of the efforts of federal courts to define their own limitations."

L. Tribe, American Constitutional Law (1978) 79.

The decision as to whether a claim presents a non-justiciable political question is the responsibility of this Court as ultimate interpreter of the Constitution. See Powell v. McCormack, 395 U.S. 486, 519-521, 89 S.Ct. 1944, 1962-1964, 23 L.Ed.2d 491, 515-517 (1969); Baker v. Carr, supra, 369 U.S. at 211, 82 S.Ct. at 706, 7 L.Ed.2d at 682; Sweeney v. Tucker, supra, 473 Pa. at 510, 375 A.2d at 706. Although Professor Tribe's treatise provides a useful framework for judicial analysis, the definitive statement of the United States Supreme Court on the application of the political question doctrine, and the case on which respondents' challenge principally relies, is Baker v. Carr, supra. There the Court, having undertaken a survey of the entire line of political question cases, was able to isolate dominant features of claims which triggered political question treatment:

"It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a

[ 496 Pa. Page 256]

    function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Id., 369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 685-686. The presence of any one of these elements will prompt a court to refrain from considering the claim asserted. The Court in Baker went on to add a cautionary note, however, that "[t]he cases . . . show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing." Id. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686.

"Ordinarily, the exercise of the judiciary's power to review the constitutionality of legislative action does not offend the principle of separation of powers. See e. g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)." Sweeney v. Tucker, supra, 473 Pa. at 508, 375 A.2d at 705. Rather, it is the duty of the courts to invalidate legislative action repugnant to the constitution. See e.g., Hertz Drivurself Stations v. Siggins, 359 Pa. 25, 33, 58 A.2d 464, 469 (1948); Commonwealth ex rel. Smith v. Clark, 331 Pa. 405, 414, 200 A. 41, 46 (1938); Respublica v. Duquet, 2 Yeates 493 (1799).

In the instant action respondents argue that the very question at issue here, the proper meaning of "a majority of the members elected to the Senate," is a political question in that Senate Rule XXII, subparagraph 8, supra, defines the phrase, and since Article II, section 11 of the Pennsylvania

[ 496 Pa. Page 257]

Constitution provides that "[e]ach House shall have power to determine the rules of its proceedings," the issue is "textually committed" to the Senate. Unquestionably the Senate has exclusive power over its internal affairs and proceedings. However, this power does not give the Senate the right to usurp the judiciary's function as ultimate interpreter of the Constitution under the guise of rulemaking, or for that matter, to make rules violative of the Constitution. See, e. g., Opinion of the Justices, 56 Del. 118, 190 A.2d 519 (Del.Sup. 1963); 81A C.J.S. "States" § 52.

The definition of a constitutional majority, in addition, is not merely a procedural detail of concern only to the Senate, but rather represents, in the context of the separation of powers principle, a significant "check" upon the appointment power of the Executive whose dimensions must be prescribed by the Constitution itself, not by either the Legislature or the Executive. It is, therefore, not appropriate subject matter for legislative rulemaking.

Insofar as Senate Rule XXII-8 embodies the Senate's interpretation of Article IV, section 8(a) of the Constitution it must be accorded a certain amount of weight. See, e. g., Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 534, 193 A. 46, 49 (1937); Montgomery v. Martin, 294 Pa. 25, 39, 143 A. 505 (1928); Maginnis v. Schlottman, 271 Pa. 305, 308, 114 A. 782, 783 (1921). If it is at variance with the meaning and intent of the provisions it purports to construe, however, it is void. "When the Constitution clearly sets forth the manner in which something shall be done, that procedure must be followed to the exclusion of all others, including a procedure which the legislature may prefer; . . . ." School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 564, 345 A.2d 658, 663 (1975); see Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 117, 232 A.2d 729, 737 (1967); Commonwealth ex rel. Smillie v. McElwee, 327 Pa. 148, 158-159, 193 A. 628, 633 (1937). As stated above, it remains within the province of the courts to interpret the Constitution.

[ 496 Pa. Page 258]

Since the issue here is the meaning of a constitutional provision and not the internal workings of the Senate, we need not address respondents' other contentions under the aegis of the political question doctrine.*fn6 It is clear from the foregoing that the subject matter of the instant action suffers from none of the constitutional infirmities enumerated in Baker v. Carr, supra. Accordingly, we conclude that petitioners' claim is justiciable and we shall proceed to consider its merits.

III. "A Majority of the Members Elected to the Senate"

This Court has announced clear guidelines to aid in the interpretation of constitutional provisions. In Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760 (1979), we stated:

"Constitutional provisions are not to be read in a strained or technical manner. Rather, they must be given the ordinary, natural interpretation the ratifying voter would give them. Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976); Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976).

"Where, as here, we must decide between two interpretations of a constitutional provision, we must favor a natural reading which avoids contradictions and difficulties in implementation, which completely conforms to the intent of the framers and which reflects the views of the ratifying voter."

Id., 483 Pa. at 475, 477, 397 A.2d at 765, 766. We believe the reading petitioners would impose upon Article IV, section 8(a) enjoys none of the characteristics of such an interpretation.

[ 496 Pa. Page 259]

Petitioners contend that the phrase "a majority of the members elected to the Senate" means a majority computed on the basis of the total number of senators elected at a given time, whether or not such senators are, in the words of Senate Rule XXII-8, "living, sworn [or] seated." Hence, in the instant action, they would have us rule that Respondent Daniels was put into office by less than a constitutional majority, and should be ousted, because 50 senators were "elected," and her nomination received only 25 affirmative votes. Petitioners appear to be relying on the common or natural meaning of the word "elected" and the meaning of "member" as it is used elsewhere in the Constitution to arrive at this interpretation, disregarding the phrase as a whole and in the context of Article IV, section 8.

In our view, to compute a majority based on a number greater than the total voting group, even where, as here, the potential for ambiguity may exist, would be irrational. The purpose of Article IV, section 8(a) in requiring a majority of "members elected" would appear to be to ensure that the entire body of the Senate participates in the executive appointment confirmation process, rather than just a quorum. Thus, if in the instant situation the two persons not in office at the time of the vote on Respondent Daniels' nomination were instead merely absent, petitioners' method of computing a majority would have been correct. To include among the number of individuals charged with the responsibility of reviewing the qualifications of the Governor's nominees, senators-elect or former senators, neither entitled to vote in the Senate, would in no way enhance the ability of the Senate to advise and consent. What it would do, however, is cause Article IV, section 8(a) to require greater than a majority vote whenever there was a vacancy in the Senate.*fn7 This would place a proportionately greater burden on the executive branch when a vacancy or vacancies exist in the Senate, which could in turn encourage needless delay in filling appointive positions.

[ 496 Pa. Page 260]

Additionally, under petitioners' interpretation, the number of "members elected" could be greater than the total number of senators provided for in the Constitution.*fn8 For example, both defeated incumbents and the successful candidates who have not yet replaced them in office would be "members elected." The same would presumably be true of senators who die or resign and those elected to fill their seats. Both petitioners and respondents posit "doomsday" hypotheticals in which 25 of 50 senators are killed in a disaster. While under respondents' interpretation of the phrase in question, a lesser number of senators could override the Governor's veto than were originally required to pass the vetoed bill, under the same circumstances, the Senate would be incapable of taking any action requiring the vote of a majority of all members if petitioners' interpretation of Article IV, § 8(a) were followed. The latter consequence is by far the less desirable.

Petitioners' only support in Pennsylvania case law for their position appears to be the Marshall Impeachment Case, 363 Pa. 326, 69 A.2d 619 (1949), wherein petitioners find language of this Court they assert is controlling in the instant action. In Marshall, President Judge Brown of the Philadelphia County Court of Common Pleas, on whose opinion we affirmed the trial court decision per curiam, stated:

"Rule 4 of the Rules of Council, Manual of the City of Philadelphia for 1949, page 14, provides: 'A quorum shall consist of a majority of the members elected to council.' This number is twelve, and it governs even where variance exists in the Council membership of twenty-two. It also constitutes a majority of such membership. Therefore it seems that twelve councilmen must concur in finding the accused guilty . . . ."

[ 496 Pa. Page 261]

    and hold that "a majority of the members elected to the Senate" as employed in that subsection means "a majority of the members elected, living, sworn, and seated." Accordingly, the appointments of Respondent Daniels and of the other nominees confirmed by a vote of 25 senators are upheld as valid under the Constitution of the Commonwealth of Pennsylvania. The relief requested by petitioners is denied and their Petition for Review dismissed.

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