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Michael L. Fagan, Michael Hoffman v. Samuel H. Smith

February 29, 2012


Per curiam.

Petition for Writ of Mandamus or, Alternatively, Application for the Exercise of Original Jurisdiction under King's Bench Power and Emergency Relief


AND NOW, this 29th day of February 2012, upon consideration of the emergency request and the responsive pleadings, we GRANT Petitioners' alternative request that this Court exercise its King's Bench jurisdiction over this matter. It is hereby ORDERED that the request for mandamus relief is GRANTED IN PART. Specifically, the Honorable Samuel H. Smith, Speaker of the Pennsylvania House of Representatives, is hereby ORDERED to issue forthwith writs of election for special elections to fill the vacancies in the House of Representatives, Legislative Districts 22, 134, 153, 169, 186, and 197. The special elections shall be held to fill the enumerated vacancies "for the remainder of the [2010-2012] term," the two-year term for which members were elected at the November 2010 general election. PA. CONST. art II, §§ 2, 3; see PA. CONST. art II, § 4 ("The General Assembly shall be a continuing body during the term for which its Representatives are elected."). The special elections shall be held to coincide with the next ensuing primary election.*fn1

The writ of mandamus exists to compel official performance of a ministerial act or mandatory duty. See Delaware River Port Auth. v. Thornburgh, 493 A.2d 1351, 1355 (Pa. 1985). Mandamus cannot issue "to compel performance of a discretionary act or to govern the manner of performing [the] required act." Volunteer Firemen's Relief Ass'n of City of Reading v. Minehart, 203 A.2d 476, 479 (Pa. 1964). This Court may issue a writ of mandamus where the petitioners have a clear legal right, the responding public official has a corresponding duty, and no other adequate and appropriate remedy at law exists. Id.; see Board of Revision of Taxes v. City of Philadelphia, 4 A.3d 610, 627 (Pa. 2010). Moreover, mandamus is proper to compel the performance of official duties whose scope is defined as a result of the mandamus action litigation. Thornburgh, 493 A.2d at 1355. Thus, "we have held that mandamus will lie to compel action by an official where his refusal to act in the requested way stems from his erroneous interpretation of the law." Minehart, 203 A.2d at 479-80.

We find that petitioners here have met their burden and are entitled to a writ of mandamus ordering Speaker Smith to issue writs of election for special elections to fill the currently vacant seats in the House of Representatives, to wit, Legislative Districts 22, 134, 153, 169, 186, and 197. The right at issue is the fundamental right to representation in these House districts. See Reynolds v. Sims, 377 U.S. 533, 566 (1964) ("the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators."). Petitioners, voters in the enumerated districts, have demonstrated that they have a clear legal right to elected representation, which right must be vindicated at special elections. PA. CONST. art I, § 5 ("Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."). The Speaker of the House of Representatives, as its presiding officer, has a corresponding, non-discretionary duty to issue writs of election for special elections to fill vacancies in the House of Representatives. PA. CONST. art II, § 2 ("Whenever a vacancy shall occur in either House, the presiding officer thereof shall issue a writ of election to fill such vacancy for the remainder of the term.") (emphases added).

The Speaker does not dispute that his duty, as set forth in Section 2 of Article II, is mandatory, ministerial and non-discretionary. Nor does the Speaker dispute that he was fully authorized to issue writs of election as soon as these vacancies arose in January. It is also undisputed that the next regularly scheduled election, following the vacancies, is the primary election currently scheduled for April 24, 2012. And, the Speaker does not dispute that he was empowered to issue writs of election to ensure that these vacancies in the House were filled at that primary election. Accordingly, under the Constitution, the Speaker must issue the writs.

The Speaker's position in opposition depends upon a discretionary power allegedly conferred by Act 105 of 2001, 25 P.S. § 2778a, a recent amendment to the Election Code adopted during the last decennial redistricting process in 2001. (This Court has not yet had an opportunity to address Section 2778a.) Article II, Section 2 of the Constitution does not establish a specific time frame in which the presiding officer must act to discharge his ministerial duty to issue writs of election; albeit, use of the words "whenever" and "shall" convey that alacrity is required. Moreover, and notably, the Constitution does not repose any discretion in the presiding officer of either chamber to permit regularly scheduled elections to go by without issuing writs to fill vacant seats.*fn2

In contrast, the Election Code specifically addresses timing, and corroborates that the Constitution contemplates that writs should issue quickly. Thus, the Code generally requires the presiding officer of the affected legislative branch to act almost immediately to fill vacancies: within ten days of a vacancy, the presiding officer must "issue a writ of election to the proper county board or boards of election and to the Secretary of the Commonwealth, for a special election to fill said vacancy, which election shall be held at the next ensuing primary, municipal or general election scheduled at least sixty (60) days after the issuance of the writ. . . ." 25 P.S. § 2778.

In 2001, however, the General Assembly amended this provision and vested in the presiding officer (whether House or Senate) a discretionary power not to issue such writs whenever vacancies occur during the pendency of the adoption and finalization of a decennial reapportionment plan. Thus, Section 2778a of the Code provides that:

Whenever a vacancy shall occur in either house of the General Assembly on the same day as the filing of a preliminary reapportionment plan by the Legislative Reapportionment Commission or during the period between such filing and the date that a final plan attains the force of law, the presiding officer of the house shall have the authority, notwithstanding any other provisions of law to the contrary, to delay the issuance of a writ of election until ten days after the date the final plan attains the force of law.

25 P.S. § 2778a. The Speaker argues that this provision confers upon him a discretionary power to delay issuing writs of election indefinitely, until a final reapportionment plan has force of law. Under the statute, according to the Speaker, the mandatory and ministerial duty set forth in the Constitution is transformed into a discretionary, and potentially open-ended, duty in years where vacancies arise during the reapportionment process.

To the extent the Speaker reads this broad and open-ended discretionary power into Section 2778a, the provision obviously is in tension with the plain terms of the Constitution, and the statute would have to stand down. See, e.g., Ieropoli v. AC&S Corp., 842 A.2d 919, 925, 928 (Pa. 2004) ("[T]he fundamental rule of construction which guides us is that the Constitution's language controls and must be interpreted in its popular sense, as understood by the people when they voted on its adoption. . . . [a] statute will only be declared unconstitutional if it clearly, palpably and plainly violates the constitution."); In re Subpoena on Judicial Inquiry and Review Bd., 517 A.2d 949, 955 (Pa. 1986) ("In the framework of our governmental system it is clear that the constitutional rule of law is more fundamental and must prevail."). We think that the statute, insofar as it applies to the Pennsylvania House of Representatives, may be, and properly should be, construed in a narrower sense that avoids this obvious constitutional tension. See In re F.C. III, 2 A.3d 1201, 1214 (Pa. 2010) ("[C]courts have the duty to avoid constitutional difficulties, if possible, by construing statutes in a constitutional manner.").

Decennial reapportionment may have obvious and immediate disruptive consequences for the Pennsylvania Senate, since the four-year terms of office in the Senate are staggered. A reapportionment plan may affect existing senatorial districts that are not on the ballot in the year the new plan is adopted. In theory, a vacancy could occur in a district that has been altered, moved, or eliminated. See Donatelli v. Casey, 826 F. Supp. 131, 135-36 (E.D. Pa. 1993), aff'd, Donatelli v. Mitchell, 2 F.3d 508 (3d Cir. 1993) (substantial population shift from western part of state to eastern part of state justified movement of senatorial district 250 miles east under reapportionment plan). There is some salutary value in authorizing the presiding officer of the Senate to await the outcome of the redistricting process before determining to issue writs for election. Indeed, in certain instances (but not all), the Senate's presiding officer may not know the contours of the district in which the election should be held.

Such is simply not the case with the House. Every Pennsylvania House seat is voted upon every two years. A new reapportionment plan, once final, takes effect at the next ensuing primary and general election; it does not operate retroactively to remake the districts of sitting House members for the remainder of their terms; it simply does not disrupt existing terms. Thus, unlike his presiding officer counterpart in the Senate, the Speaker of the House does not need to abide the outcome of a redistricting plan to know where to schedule the special elections the Constitution requires him to call, in order to fill vacancies for the remainder of these two-year terms. In short, there is no apparent reason why ...

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