The opinion
[J-29-2024] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
RICHARD MARTIN, JR., RICHARD : No. 24 WAP 2023
FIDLER AND TAMMI IAMS :
: Appeal from the Order of the
: Commonwealth Court entered April
v. : 13, 2023, at No. 369 CD 2022,
: Affirming in Part and Reversing In
: Part the Order of the Court of
DONEGAL TOWNSHIP, JAMES BAUER, : Common Pleas of Washington
RANDY POLAN, EDWARD SHINGLE, JR., : County entered March 29, 2022, at
KATHLEEN CROFT AND WASHINGTON : No. 2021-7906 and Remanding.
COUNTY BOARD OF ELECTIONS :
: ARGUED: April 10, 2024
:
APPEAL OF: DONEGAL TOWNSHIP, :
JAMES BAUER, RANDY POLAN, :
EDWARD SHINGLE, JR. AND KATHLEEN :
CROFT :
CONCURRING OPINION
JUSTICE McCAFFERY DECIDED: OCTOBER 24, 2024
I agree with the Majority that the Commonwealth Court order must be reversed.
As the Majority states: “Section 402(e) [of the Second Class Township Code] does not
authorize the removal of Fidler from office, or anyone else for that matter. Instead, its
application modified Fidler’s existing term of office and presented him with the opportunity
to win a new term on a three-member board,” and “[a]s such, application of this statute
did not run afoul of Article VI, Section 7 [of the Pennsylvania Constitution].” Majority
Opinion at 13-14. However, to the extent the Majority suggests that Article VI, Section 7
is the exclusive means for removal from office, I disagree. Id. at 14.
Notwithstanding this Court’s view in Reese and South Newton, I do not agree that
Article VI, Section 7, of the Commonwealth’s Constitution provides the exclusive means
by which a civil officer may be removed from office. To this point, law professor Jefferson
B. Fordham may have said it best when he wrote:
The constitution uses the word “shall.” It mandates removal upon conviction
of “misbehavior in office or of any infamous crime” and removal by the
governor on address of two-thirds of the Senate for reasonable cause after
due notice and full hearing. It could be said that these provisions simply
require removal under the stated circumstances and are not limiting
or preemptive language.
Jefferson B. Fordham, Judicial Nullification of a Democratic Political Process – The Rizzo
Recall Case, 126 U. Pa. L. Rev. 1, 11 (1977) (emphasis added).
The present case has nothing to do with removal from office. However, where
removal may be at issue, I do not believe Article VI, Section 7, is limiting or preemptive
of it. At the core of all our decisions relative to modification of an incumbent’s term or
removal from office, we must remember, as this Court has consistently held, there is no
right to a public office. The plain language of Article VI, Section 7, requires bad actors
be removed from office, but it does not limit removal for other reasons, where such
removal may otherwise be authorized by law and approved by the body politic.
Although I disagree with the Majority’s view that Article VI, Section 7, is the
exclusive means for removal from office, I concur in the holding to reverse the order of
the Commonwealth Court.
[J-29-2024] [MO: Dougherty, J.] - 2