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decided: May 9, 1984.


No. 16 M.D. Appeal Docket 1984, Appeal from the Order of the Commonwealth Court dated Feb. 22, 1984, entered at No. 345 C.D. 1984


Michael T. McCarthy, Harrisburg, for appellant.

Lee C. Swartz, Harrisburg, James J. Binns, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott and Hutchinson, JJ., dissent because the Petition to Set Aside Nomination Paper filed in the Commonwealth Court expressly relied on Section 977 of the Election Code. Larsen, J., did not participate in this matter. Flaherty, J., concurs in the result. McDermott J., filed dissenting opinions. Mr. Justice Hutchinson joins in this Dissenting Opinion. Hutchinson, J., filed dissenting opinions. McDermott, J., joins in this opinion.

Author: Per Curiam

[ 505 Pa. Page 53]


There not having been established a valid challenge under the Election Code as to the candidacy for the nomination of Roxanne H. Jones, the Secretary of the Commonwealth is ordered to certify forthwith to the County Board of Elections of Philadelphia the name and ballot position of Roxanne H. Jones as candidate for nomination for Senator in the General Assembly of the Commonwealth of Pennsylvania from the Third Senatorial District. Opinions to follow.

[ 505 Pa. Page 54]


NIX, Chief Justice.

This opinion is filed in support of the per curiam orders of this Court dated March 15, 1984 and March 28, 1984. The order of March 15, 1984 vacated an order entered by Judge Rogers, of the Commonwealth Court, setting aside the nomination petition that had been filed by Ms. Roxanne H. Jones, (hereinafter referred to as "Candidate"), who was seeking the Democratic Party's nomination for Senator in the General Assembly as the representative of the Third Senatorial District. The order of March 28, 1984 directed the Secretary of the Commonwealth to certify to the County Board of Elections of Philadelphia the name of the Candidate so that it would appear on the Democratic Ballot, within the said district, in the Primary Election to be held on April 10, 1984.

In order to accommodate the need for a prompt disposition, because of the exigencies entailed in the election process, we entered these orders without opinion. This opinion sets forth the reasons supporting those orders.



There are two individuals seeking the Democratic nomination for the office in question. One of the aspirants is the incumbent Senator, T. Milton Street, who was a member of a group of five (5) objectors initiating this matter.*fn1 The person seeking the office is the Candidate. The objectors

[ 505 Pa. Page 55]

    raised two complaints before Judge Rogers. One charged that the affidavit executed and sworn to by the Candidate misrepresented that a Statement of Financial Interest had been filed as required by section 4(b) of the State Ethics Act, Act of October 4, 1978, P.L. 883, No. 170, § 4, 65 P.S. § 404(b) (Supp.1983-84). This objection was dismissed on the authority of our decision in Commonwealth, State Ethics Commission v. Baldwin, 498 Pa. 255, 445 A.2d 1208 (1982).*fn2 The propriety of that ruling has not been raised before this Court. Of crucial importance is there has been no other objection raised specifically attacking the nomination petition in question.

The second argument of the objectors speculates that if the Candidate was successful in the primary election, and if she was also victorious in the general election, the next duly constituted Senate, following the November General Election of 1984 might refuse to seat her, if they concluded that she had not met all of the qualifications set forth in Article 2, section 5 of the Constitution of Pennsylvania.*fn3 Judge Rogers accepted the invitation to indulge in those conjectural lemmata, and determined, after making his findings that the Candidate was not "domiciled" within the Third Senatorial District on or before November 6, 1983, that the Candidate should not be permitted to run for the office. In response to this order we entered our order of March 15, 1984.

After the entry of our March 15, 1984 order there were no remaining impediments to the certification of the Candidate. Notwithstanding, the Secretary of the Commonwealth by communication dated March 26, 1984 refused to certify the name of the Candidate to be printed on the

[ 505 Pa. Page 56]

    ballot, relying upon a Senate Resolution (Serial No. 114) dated March 20, 1984. Since this action by the Senate was devoid of legal authority and totally without efficacy, upon the request of the Candidate,*fn4 we entered the order of March 28, 1984 directing the Secretary to place the name of the Candidate upon the ballot for the April 10, 1984 primary election.


At the outset it is necessary to accurately identify the issue raised by Judge Rogers' order. Judge Rogers did not find that the candidate was not a resident of the address appearing in her nomination petition at the time she executed the candidate's affidavit. Further, it is agreed that her listed residence in the petition is within the Third Senatorial District. Most important, Judge Rogers did not find any false statements in the affidavit filed by the Candidate. Thus the issue is not whether a nomination petition may be set aside where it is established that the petition contained a false candidate's affidavit.*fn5 Judge Rogers did not attempt to assign a defect in the petition as the basis for his order requiring that the petition be set aside. Rather, he concluded that in view of his determination that appellant had failed to establish that she was an

[ 505 Pa. Page 57]

"inhabitant" within the district on or before November 6, 1983,*fn6 she could not satisfy the provisions of Article 2, section 5 of the Pennsylvania Constitution and for that reason she should not be permitted to run for the office. Thus the question presented to us was whether or not Article 2, section 5 dictates that a court should make an a priori determination of whether a candidate meets the constitutional requirements for the office she seeks to obtain and on the basis of that judgment deny the candidate the right to put her name before the public for their consideration.



The argument presented relies upon the unstated premise that Article 2, section 5*fn7 is self-executing and authorizes court involvement. An analysis forces the conclusion that neither Article 2 in its entirety, nor section 5 specifically, confers authority in the court to act in this area.

[ 505 Pa. Page 58]

Article 2 is concerned with the composition, powers and duties of the legislature. Nothing in this article even remotely suggests the conferrence of jurisdiction upon the courts to test the qualifications of the members of the General Assembly.*fn8 Indeed, section 9 of Article 2 expressly states that each body of the General Assembly shall be the judge of the qualifications of its members.*fn9 Moreover, Article 2, section 5 by its express terms refers only to the qualifications of the members of the body. There is no reference to persons who file to run for the office.

Aside from the obvious conclusion that Article 2 was not designed to confer judicial power, we would also be restrained from intervening at this juncture by virtue of the doctrine of separation of powers of the three independent branches of government. We note the existence of a body of case law which advocates that the language used in section 9 is properly interpreted as placing the exclusive jurisdiction in the legislative body and divesting the courts of all jurisdiction in the matter. Buskey v. Amos, 294 Ala. 1, 310 So.2d 468 (1975) (Alabama Constitution vests legislature with sole and exclusive power to judge qualifications of members and deprives courts of jurisdiction of such matters.); In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951) (California Constitution confers exclusive jurisdiction upon assembly to judge qualifications of assemblymen and assembly

[ 505 Pa. Page 59]

    cannot authorize courts to decide contests after primary elections); Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902) (Under Colorado Constitution, senate alone has jurisdiction to determine whether vacancy exists in senate district; the court has no authority to decide the question.); State ex rel. Biggs v. Corley, 36 Del. 135, 172 A. 415 (1934) (Courts have no jurisdiction to consider question of implied resignation or abandonment by senator or representative since Delaware Constitution vests in each house the right, power and authority to judge election and qualifications of its members.); McPherson v. Flynn, 397 So.2d 665 (Fla.1981) (Under Florida Constitution each house is the sole judge of the qualifications of its members; the courts have no jurisdiction to determine constitutional qualifications.); Burge v. Tibor, 88 Idaho 149, 397 P.2d 235 (1964) (Idaho Constitution makes each house sole judge of election and qualifications of its members.); State ex rel. Acker v. Reeves, 229 Ind. 126, 95 N.E.2d 838 (1951) (Indiana Constitution's grant of jurisdiction to the general assembly to judge qualifications of its members excludes jurisdiction from courts.); State ex rel. Turner v. Scott, 269 N.W.2d 828 (Iowa 1978) (Power granted by Iowa Constitution to legislature to judge election and qualifications of its members cannot be exercised by the courts.); State ex rel. Martin v. Gilmore, 20 Kan. 551 (1878) (Kansas Constitution makes each house the ultimate tribunal as to the qualifications of its members; this power is exclusive and cannot be abridged.); Covington v. Buffet, 90 Md. 569, 45 A. 204 (1900) (Under provision of Maryland Constitution vesting senate with power to judge the election and qualifications of its members, the senate has exclusive authority to determine whether a vacancy in the senate exists, and the courts have no jurisdiction to decide such a question.); Dinan v. Swig, 223 Mass. 516, 112 N.E. 91 (1916) (Massachusetts Constitution vests power to determine election and qualifications of members exclusively in each branch; this power is comprehensive, full and complete.); People ex rel. Drake v. Mahaney, 13 Mich. 481 (1865) (Power to judge election and qualifications of members is expressly conferred on the

[ 505 Pa. Page 60]

    legislature and the courts have no power to review the legislature's actions.); State v. Banks, 454 S.W.2d 498 (Mo.1970), cert. denied, 400 U.S. 991, 91 S.Ct. 452, 27 L.Ed.2d 449 (1971) (Power to be sole judge of qualifications of its own members is textually committed by the Missouri Constitution to the House of Representatives; attorney general's challenge to qualifications of representatives thus presents a non-justiciable political question.); State ex rel. Boulware v. Porter, 55 Mont. 471, 178 P. 832 (1919) (Montana Constitution vests plenary and exclusive authority in each house to judge the election and qualifications of its members; the house's decision is conclusive upon the courts.); Bingham v. Jewett, 66 N.H. 382, 29 A. 694 (1891) (Under the New Hampshire Constitution the house is the sole judge of the qualifications of its members and the courts are not authorized to determine the question of membership.); Sherrill v. O'Brien, 188 N.Y. 185, 81 N.E. 124 (1907) (Opinion of Cullen, C.J.) (Each house has not only the exclusive power but the exclusive right to judge the title of any member to a seat therein; the courts have no jurisdiction to make such a determination.); Lessard v. Snell, 155 Or. 293, 63 P.2d 893 (1937) (In view of the senate's power under the Oregon Constitution to judge the qualifications of its members, the courts have no jurisdiction to determine the qualifications of a senator.); Culbertson v. Blatt, 194 S.C. 105, 9 S.E.2d 218 (1940) (Under the South Carolina Constitution the senate and house judge the election and qualifications of their members; this is not a field in which the courts may exercise judicial power.); State ex rel. Schieck v. Hathaway, 493 P.2d 759 (Wyo.1972) (Under the Wyoming Constitution the house is the sole judge of the qualifications of its members; the courts have no jurisdiction to consider a challenge to a representative's qualifications.).

The theory of nonjusticiability in this area flows from the concept of the separation of powers. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). "The vesting of authority to pass upon the qualifications of

[ 505 Pa. Page 61]

[elected] prospective legislators in the legislative body is deemed an essential concomitant of our tripartite form of government affording to the legislative branch an independence requisite to its successful functioning." Harrington v. Carroll, 428 Pa. 510, 522, 239 A.2d 437, 443 (1968) (Jones, former C.J., then Jones, J., concurring). This view of the proper relationship between the various branches of our government was obviously embraced by the people of this Commonwealth and set forth in section 9 in clear and unequivocal terms.

The rule of nonjusticiability in this area is not to be construed as an absolute prohibition against judicial consideration of the constitutional qualifications of one claiming an office. Manifestly, the court has jurisdiction to entertain a claim of an elected prospective office holder that his or her right to sit has been unconstitutionally denied. See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); cf. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). However, a right to intervene in that situation does not flow from the constitutional section setting forth the qualifications, but rather from our well recognized jurisdiction to intervene when there is an allegation of an infringement of constitutional rights. See, e.g., Sweeney v. Tucker, supra; Stander v. Kelley, 433 Pa. 406, 250 A.2d 474 (1969), cert. denied and appeal dismissed sub nom. Lindsay v. Kelly, 395 U.S. 827, 89 S.Ct. 2130, 23 L.Ed.2d 738 (1969). The consideration of the qualifications as set forth by the constitutional mandate is merely tangential to the underlying inquiry. Additionally, the judicial remedy of quo warrantor is available to test an individual's right to hold a public office. Spykerman v. Levy, 491 Pa. 470, 421 A.2d 641 (1980); League of Women Voters of Lower Merion Tp. v. Board of Commissioners of Lower Merion Tp., Montgomery County, 451 Pa. 26, 301 A.2d 797 (1973); DeFranco v. Belardino, 448 Pa. 234, 292 A.2d 299 (1972); City of Philadelphia v. Sacks, 418 Pa. 193, 210 A.2d 279 (1965). Here again the court is not directly involved in

[ 505 Pa. Page 62]

    evaluating constitutional qualifications, but rather in preserving the integrity of our public institutions. See Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933).

Not only is the section 5 argument fatally flawed because of the lack of a jurisdictional predicate and the involvement of a non-justiciable issue, its application under the instant facts would also be premature and speculative. To attempt to justify this premature consideration on the ground that otherwise the Candidate may at some later date be refused membership by the Senate and thereby disenfranchise the voters of her district represents the most blatant sophistry. If someday these events do occur, the situation can be easily remedied by a special election. Act of June 3, 1937 P.L. 1333, art. VI, § 628, 25 P.S. § 2778. In such event, the voters will have the opportunity to select another person of their choice to serve in that capacity. In contrast, to deprive the Candidate of the right to seek the seat at this time would not only disenfranchise her, but would in fact remove the opportunity of a choice for all of the Democratic voters in that particular senatorial district.*fn10

In summary, Article 2, section 5 does not by its terms grant jurisdiction to the courts to inquire into the qualifications of one seeking to run for the office. Moreover, the legislature has not expressly attempted to confer such power. The courts have been granted limited (not plenary) authority by the legislature over the election process. See infra. However, here the objectors and Judge Rogers relied solely on Article 2, section 5 as the predicate for the jurisdiction. Such a position must be rejected.


Any valid analysis of the instant situation must begin with the recognition that we are ...

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