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EDWARD P. ZEMPRELLI ET AL. v. DICK THORNBURGH (03/25/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 25, 1983.

EDWARD P. ZEMPRELLI ET AL., PETITIONERS
v.
DICK THORNBURGH, GOVERNOR ET AL., RESPONDENTS

Original jurisdiction in the case of Edward P. Zemprelli, Eugene F. Scanlon, James E. Ross, and Robert J. Mellow, State Senators v. Dick Thornburgh, Governor, Robert K. Bloom, William E. Andrew, Donald L. Smith, and Syed R. Ali-Saidi.

COUNSEL

William G. Dade, Assistant Counsel to the Senate Democratic Floor Leader, with him Michael T. McCarthy, Chief Counsel to the Senate Democratic Floor Leader, for petitioners.

Robert B. Hoffman, Deputy Attorney General, with him David H. Allhouse, Deputy Attorney General, Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Williams, Jr., Craig, MacPhail and Doyle. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge MacPhail.

Author: Crumlish

[ 73 Pa. Commw. Page 102]

State Senators Edward P. Zemprelli, Eugene F. Scanlon, James E. Ross and Robert J. Mellow (petitioners or senators) seek, by an action in the nature of

[ 73 Pa. Commw. Page 103]

    writ soon lost its criminal character and applied to the mere purpose of trying the civil rights involved, it retained the criminal form.

Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 344, 166 A. 878, 879 (1933). In support of this challenge to respondents' right to hold office, petitioners argue that these nominations and ensuing appointments were made in violation of Article IV, § 8(b) of the Pennsylvania Constitution and are thus unlawful.

The respondents have filed a preliminary objection in the nature of a demurrer, challenging these senators' standing to maintain this action. In arguing that the senators lack standing, the respondents contend that the only alleged injury was to their right to vote on the nominations and that, because the senators have exercised this right, they have suffered no injury. The senators reason that they have both a right and a duty to vote despite their belief that these nominations were constitutionally infirm and that they were injured by this compulsion to vote on these submissions.

In ruling on a preliminary objection in the nature of a demurrer, a court must accept all well-pleaded allegations as fact. Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth, 35 Pa. Commonwealth Ct. 133, 384 A.2d 1367 (1978). A demurrer will be sustained only when it appears, with certainty, that the law permits no recovery under the allegations pleaded, Adamson v. Commonwealth, 49 Pa. Commonwealth Ct. 54, 410 A.2d 392 (1980), and the objection must be overruled if the allegations state a cause of action under any theory of law. Sinwell v. Pennsylvania Board of Probation and Parole, 46 Pa. Commonwealth Ct. 429, 406 A.2d 597 (1979). Thus, a court must decide any question of law which is determinative as to the proper disposition of a demurrer. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976).

[ 73 Pa. Commw. Page 105]

Article IV, § 8(b), upon which petitioners rely for their assertion that these nominations were unconstitutionally submitted, provides in pertinent part:

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. (Emphasis added.)

In Zemprelli v. Thornburgh, 47 Pa. Commonwealth Ct. 43, 407 A.2d 102 (1979) (Zemprelli I), we held that this constitutional provision mandates that the Governor submit nominations within the ninety-day period subsequent to the occurrence of a vacancy. In so holding, this Court wrote:

[A]lthough both mandatory and directory provisions are meant to be followed, a distinction arises as to the effect of non-compliance because failure to follow a directory provision does not invalidate the action but disobedience of a mandatory clause renders the action illegal and void.

Id. at 56, 407 A.2d at 108. In Zemprelli I, this Court further concluded that the requirement that the Senate act within twenty-five days of the nomination also created a mandatory duty in the Senate to vote, writing that, "[b]ecause expiration of that time limit without Senate action has the positive result of placing the nominee into office, its mandatory nature is inescapable." Id. at 59, 407 A.2d at 110. Having concluded that the duty to "advise and consent," i.e., vote, was mandatory, we concluded that the petitioner, an individual senator, had a legal interest in seeing that the Governor submitted nominations within this ninety-day period and thus had standing to maintain the action. Id. at 60, 407 A.2d at 110.

[ 73 Pa. Commw. Page 106]

In Zemprelli v. Thornburgh, 55 Pa. Commonwealth Ct. 330, 423 A.2d 1072 (1980) (Zemprelli II), we further interpreted this constitutional provision to be mandatory only as to time.

Our inability to find in the constitutional provision before us a general mandate that all positions must be assiduously filled does not preclude the possibility that an executive may well be liable to compulsion to execute a program, but upon a legal basis apart from the constitutional provision at issue here. . . .

We therefore read the provision as mandatory only with respect to time.

Id. at 346-47, 423 A.2d at 1080. Thus, this provision itself places no compulsion upon the Governor to appoint but, if he does so, it must be done within this constitutionally-ordained period.

The senators have alleged, and we must accept this allegation as true, Independent Association of Pennsylvania Liquor Control Board Employees, that these nominations were submitted after the constitutionally-mandated ninety-day period. Zemprelli I. Thus, we must now decide whether, having fulfilled their mandatory duty to vote on these nominations, Zemprelli I, these individual senators now have standing to challenge these submissions. Respondents assert that, once having exercised their right and performed their duty to vote, petitioners have suffered no injury, nor do they have a further legal interest since such interest was extinguished upon the exercise of their vote. We disagree.

Standing has been defined by the United States Supreme Court as

     that "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204

[ 73 Pa. Commw. Page 107]

(1962), that insures that "the dispute sought to be adjudicated will be presented in an adversary contest and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972). . . .

Roe v. Wade, 410 U.S. 113, 123 (1973). Our Supreme Court, in determining the issue of standing in quo warrantor actions, has limited the finding of a "personal stake" to legal representatives of the public as a whole, the District Attorney or Attorney General, and to those private individuals who have 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). Here, we conclude that these senators have a grave stake in assuring that nominations submitted to the Senate will pass constitutional muster.

Under Section 8 of Article IV, each state senator has a constitutional duty to vote on executive nominations for appointive offices. Wilt v. Beal, 26 Pa. Commonwealth Ct. 298, 363 A.2d 876 (1976).*fn4 This constitutional duty is implicit in the Article IV, Section 8 mandate that "[t]he Senate shall act on each executive nomination. . . ." A duty to vote on executive nominations is also imposed by the Rules of the Senate of Pennsylvania.*fn5 Senate Rule XXII, § 3, provides as follows:

Every Senator shall be present within the Senate Chamber during the sessions of the Senate,

[ 73 Pa. Commw. Page 108]

    unless duly excused or necessarily prevented, and shall be recorded as voting on each question stated from the Chair which requires a roll call vote unless excused by the Senate. The refusal of any Senator to vote shall be deemed a contempt unless he be excused by the Senate or unless he has a direct personal or pecuniary interest in connection with the pending question. (Emphasis added.)

104 Pa. Code § 11.22(c). This duty is unqualified*fn6 and, hence, must be performed regardless of whether the nominations were, as alleged, unconstitutionally submitted. A refusal to so act, as indicated above, invites a citation for contempt. Thus, a state senator is compelled to participate in roll-call votes on executive nominations, no matter how justifiably he may contest the constitutionality of the submission of the nominations or the vote necessitated thereby. Thus, we disagree with respondents' assertion that the exercise of the vote extinguishes these senators' legal interest in this controversy. A compulsion to vote on executive nominations conveys upon these individual senators an interest greater than,*fn7 and distinguishable from, the general citizenry of this Commonwealth.*fn8 In Zemprelli I, we held, and we now reiterate:

[ 73 Pa. Commw. Page 109]

From the conclusion that the provision is mandatory, [ninety-day submission period] it follows that petitioner's right to have nominations submitted within the stated period, and not thereafter, confers a legal interest and thereby gives petitioner standing herein.

Zemprelli I at 60, 407 A.2d at 110. To hold otherwise would, in this case, allow the Governor to circumvent this provision. As we further noted in Zemprelli I, this provision was amended to avoid just such a result.

The proposing body here was a special committee to study confirmation procedures. . . . From examination of the history of recess appointments . . . and other problems, the report proceeded to note that the former language of Article IV, § 8 had been accompanied by "indefensible delay by the Senate, circumvention of the constitutional requirement by the Governor and excessive political maneuvering by the Senate and the Governor," thus subjecting both branches to criticism. (Emphasis added.)

Id. at 59, 407 A.2d at 109.

The senators have standing; thus, respondents' objection is overruled.

Order

The preliminary objection of the respondents is hereby overruled.

Disposition

Preliminary objection overruled.

Dissenting Opinion by Judge MacPhail:

I respectfully dissent.

While there is much that can and perhaps should be said about the present confirmation process which has interfered with and even endangered the normal functions of our state government, the sole legal issue presented here is whether a state senator who has cast his vote in the confirmation process may now attack

[ 73 Pa. Commw. Page 110]

    the validity of those proceedings to oust those office-holders who have been confirmed on the sole basis that the appointment was untimely made, hence, unconstitutional.

The majority opinion says (slip opinion, page 6) that in determining standing, it must be determined that the complaining party has a special interest as distinguished from the interest of the public generally. Our Supreme Court in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, (1975) said, "[I]t is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law." (Footnote omitted.) Yet, that is precisely the position of the Petitioners here. They may have a "grave stake in assuring that nominations submitted to the Senate will pass constitutional muster" as the majority says (slip opinion, page 6), but that interest is no "graver" or any different from that of all of the citizens of the Commonwealth in procuring obedience to the law.

Nor do I perceive that petitioners have suffered any injury by reason of the confirmation of these office-holders. The Petitioner's sole allegation in that respect is that they have a duty to advise and consent which has been somehow impaired. I submit that that duty was not impaired -- they voted and the appointments were confirmed. The process was complete.

I find the argument that the Petitioners were compelled to vote for if they failed to do so they would be cited for contempt, lacking substantial merit. If the appointments were clearly unconstitutional, the Senate could have refused to vote at all. If the Senate chose to vote, the Petitioners could have refused to vote. I can think of no better defense to a contempt citation than that the subject matter upon which a vote is to be taken, is unconstitutional. A maxim of the law

[ 73 Pa. Commw. Page 111]

    is that one is not ordinarily required to do a futile thing.

Finally, if the instant suit is successful, the very harm predicted in the concurring and dissenting opinion in Zemprelli II, will result. The vacancies cannot be filled and the citizens will be without the services of office-holders who, at least according to the Governor and a majority of the Senate, were found to be qualified. I make no judgment as to who is primarily or even indirectly responsible for such a situation. As I have said, we are to determine here whether the Petitioners have standing to bring this action, nothing more.

I would sustain the preliminary objection.


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