Senator Jay Costa v. Sec. Pedro A. Cortes

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Senator Jay Costa, Pa. 43rd District, :

Senator Daylin Leach, Pa. 17th District, :

in their Official Capacities, and :

Senator Christine M. Tartaglione, Pa. :

2nd District, in her Official Capacity :

and individually on behalf of qualified :

electors in the Commonwealth of :

Pennsylvania, :

Petitioners :

:

v. : No. 251 M.D. 2016

: Argued: June 9, 2016

Secretary Pedro A. Cortes, Senator :

Joseph B. Scarnati, Pa. 25th District, :

and Senator Jacob Corman III, :

Pa. 34th District, each in their :

Official Capacities, :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: July 6, 2016

Before the Court are cross-applications for summary relief filed by the

Honorable Jay Costa, the Honorable Daylin Leach, and the Honorable Christine M.

Tartaglione,1 duly-elected members of the Pennsylvania Senate (Petitioners), and

by the Honorable Joseph B. Scarnati and the Honorable Jacob Corman III, also

duly-elected members of the Pennsylvania Senate (Respondents). The

1

Senator Tartaglione brings this action not only in her official capacity but also as an

individual.

cross-applications are filed in response to Petitioners’ amended petition for review

in the nature of a complaint for declaratory and equitable relief, challenging House

Resolution 783 of 2016 (H.R. 783).2 This case involves the extent of the General

Assembly’s powers under Article XI, section 1 of the Pennsylvania Constitution,

which provides, in relevant part:

Amendments to this Constitution may be proposed

in the Senate or House of Representatives; and if the

same shall be agreed to by a majority of the members

elected to each House, such proposed amendment or

amendments shall be entered on their journals with the

yeas and nays taken thereon, and the Secretary of the

Commonwealth shall cause the same to be published

three months before the next general election, in at least

two newspapers in every county in which such

newspapers shall be published; and if, in the General

Assembly next afterwards chosen, such proposed

amendment or amendments shall be agreed to by a

majority of the members elected to each House, the

Secretary of the Commonwealth shall cause the same

again to be published in the manner aforesaid; and such

proposed amendment or amendments shall be submitted

to the qualified electors of the State in such manner, and

at such time at least three months after being so agreed to

by the two Houses, as the General Assembly shall

prescribe; and, if such amendment or amendments shall

be approved by a majority of those voting thereon, such

amendment or amendments shall become a part of the

Constitution; but no amendment or amendments shall be

submitted oftener than once in five years. When two or

more amendments shall be submitted they shall be voted

upon separately.

2

Although Petitioners filed the amended petition for review after the filing of the

cross-applications for summary relief, the parties have had the opportunity to address the

amended petition for review in their filings.

2

At issue is whether and, if so, when the General Assembly may, by concurrent

resolution, withdraw a proposed constitutional amendment placed on a primary

election ballot and place the same proposed constitutional amendment on the next

general election ballot. We now deny Petitioners’ application for summary relief,

grant Respondents’ application for summary relief, and enter judgment in favor of

Respondents.

I. BACKGROUND

H.R. 783 is a concurrent resolution adopted by majority votes in both

the Pennsylvania House of Representatives, on April 6, 2016, and the Pennsylvania

Senate, on April 11, 2016. Among other things, H.R. 783 purports to remove

“Proposed Constitutional Amendment 1” from the April 26, 2016 General Primary

Election (2016 Primary Election) ballot (April 2016 Ballot) and place the same on

the November 8, 2016 General Election (2016 General Election) ballot (November

2016 Ballot). Proposed Constitutional Amendment 1, if approved by electors,

would amend section 16(b) of Article V of the Pennsylvania Constitution to

provide that Pennsylvania justices, judges, and magisterial district judges be retired

on the last day of the calendar year in which they attain the age of 75.3

This case does not concern the legal validity of the processes and

procedures followed by the General Assembly, the Secretary, and the Attorney

General of Pennsylvania in securing Proposed Constitutional Amendment 1’s place

on the April 2016 Ballot.4 Instead, Petitioners commenced this action in this

3

Section 16(b) of Article V of the Pennsylvania Constitution currently provides that

Pennsylvania justices, judges, and magisterial district judges be retired on the last day of the

calendar year in which they attain the age of 70.

4

There is no dispute that the constitutional and statutory requirements for placing the

proposed constitutional amendment on the April 2016 Ballot had been met prior to the General

(Footnote continued on next page…)

3

(continued…)

Assembly’s passage of H.R. 783. As required by Article XI, section 1 of the Pennsylvania

Constitution, the House of Representatives, on June 28, 2013, approved a resolution placing a

ballot question before the qualified electors. The ballot question proposed an amendment to

Article V, section 16(b) of the Pennsylvania Constitution, which would raise the mandatory

judicial retirement age to 75. See Pa. House Bill 79 Session of 2013 (H.B. 79). On

October 15, 2013, the Senate approved the joint resolution, and, on October 22, 2013, the joint

resolution was filed with the Secretary as “Pamphlet Law Resolution No. 3.” See Legis. Hist. of

H.B. 79. Thereafter, as directed by H.B. 79 and as mandated by Article XI, section 1, the

Secretary advertised this first passage of the proposed constitutional amendment. On

November 17, 2015, both the House of Representatives and Senate approved a joint resolution

representing the necessary second passage of the proposed constitutional amendment. See Pa.

House Bill 90 Session of 2015 (H.B. 90). Consistent with H.B. 90 and Article XI, section 1, the

Secretary advertised the proposed amendment for the second time. This advertisement included

a “plain English” summary of the proposed amendment, prepared by the Office of Attorney

General (OAG). Thereafter, the Secretary submitted the proposed constitutional amendment to

the Commonwealth’s qualified electors as a ballot question for the 2016 Primary Election, as

mandated by H.B. 90.

Several events occurred following the Secretary’s submission of the proposed

constitutional amendment. On March 6, 2016, Respondent Senators filed an emergency

application requesting that the Pennsylvania Supreme Court act in its King’s Bench jurisdiction

to alter the wording of the proposed constitutional amendment, which at that time read:

Shall the Pennsylvania Constitution be amended to require that justices of the

Supreme Court, judges and justices of the peace (known as magisterial district

judges) be retired on the last day of the calendar year in which they attain the age

of 75 years, instead of the current requirement that they be retired on the last day

of the calendar year in which they attain the age of 70.

Respondent Senators sought to alter the proposed constitutional amendment to read:

Shall the Pennsylvania Constitution be amended to require that judges and

justices of the peace be retired on the last day of the calendar year in which they

attain the age of 75 years.

By per curiam order, dated March 23, 2016, our Supreme Court denied any relief. In apparent

response, on April 6, 2016, the House of Representatives approved H.R. 783, which the Senate

adopted on April 11, 2016. Petitioners then filed the action now before the Court. Petitioners

sought preliminary injunctive relief, which the Court, by the Honorable P. Kevin Brobson,

denied by order dated April 20, 2016, amended April 28, 2016. In its opinion, the Court advised

the Secretary to work with the county boards of elections to notify voters “that Proposed

(Footnote continued on next page…)

4

Court’s original jurisdiction to challenge the legal validity of H.R. 783, the

operative clauses of which provide:

RESOLVED (the Senate concurring), That the

Secretary of the Commonwealth remove the ballot

question for Proposed Constitutional Amendment 1 from

the ballot certification for the primary election on

April 26, 2016; and be it further

RESOLVED, That the county boards of election

remove, to the extent possible, the ballot question for

Proposed Constitutional Amendment 1 from the ballot;

and be it further

RESOLVED, That the [S]ecretary disregard any

vote on Proposed Constitutional Amendment 1 in the

primary election on April 26, 2016, and the [S]ecretary

not make a tally of votes cast on Proposed Constitutional

Amendment 1; and be it further

RESOLVED, That the General Assembly direct

the [S]ecretary to place Proposed Constitutional

Amendment 1 on the ballot for the general election on

November 8, 2016, in the following form:

Shall the Pennsylvania Constitution be

amended to require that justices of the

Supreme Court, judges, and magisterial

district judges be retired on the last day of

the calendar year in which they attain the

age of 75 years?;

and be it further

RESOLVED, That, to ensure compliance with

section 1 of Article XI of the Constitution of

(continued…)

Constitutional Amendment 1 is not on the April 2016 Ballot, regardless of what the actual ballot

may say, and that any votes cast on that question will not be canvassed, counted, or tabulated.”

Costa v. Cortes (Pa. Cmwlth., No. 251 M.D. 2016, filed April 20, 2016), slip op. at 20-21,

amended April 28, 2016.

5

Pennsylvania, the General Assembly direct the

[S]ecretary to publish the ballot question for Proposed

Constitutional Amendment 1 as revised along with the

proposed amendment and the plain English statement

previously prepared by the Office of Attorney General, in

each of the three months prior to the general election on

November 8, 2016; and be it further

RESOLVED, That, upon passage by a majority of

both houses of the General Assembly, this concurrent

resolution be transmitted to the Secretary of the

Commonwealth for implementation.

In Count I of their amended petition for review, Petitioners contend

that H.R. 783 violates Article III, section 9 of the Pennsylvania Constitution,

because it was not presented to the Governor for approval. In Count II, Petitioners

contend that H.R. 783 unconstitutionally infringes on the rights of qualified

electors who have or will cast their votes in the 2016 Primary Election by absentee

ballot. In Count III, Petitioners essentially request preliminary injunctive relief,

which this Court denied by order dated April 20, 2016. In Count IV, Petitioners

seek mandamus relief in the form of an “[o]rder requiring the Secretary to accept,

count and certify the votes on the ballot question proposing the amendment to

[section] 16(b) cast in the April 26, 2016 primary election.” (Amended Petition for

Review, ¶93.) In Count V of the Amended Petition for Review, Petitioners allege

a violation of Article XI, section 1 of the Pennsylvania Constitution, contending

that H.R. 783 violates the mandatory advertising requirements of that section.

Finally, in Count VI, Petitioners contend that H.R. 783 violates Article III,

section 3 of the Pennsylvania Constitution, which requires that any legislative act

of the General Assembly be restricted to a single subject.

6

II. ISSUES PRESENTED

Petitioners and Respondents have filed cross-applications for

summary relief under Pa. R.A.P. 1532(b). Petitioners frame the issues to be

decided, as follows: (1) whether the General Assembly violated Article III,

section 9 of the Pennsylvania Constitution when it used a concurrent resolution to

direct the Secretary of the Commonwealth to remove Proposed Constitutional

Amendment 1 from the April 2016 Ballot (Count I); (2) whether H.R. 783 violates

Article XI, section 1 of the Pennsylvania Constitution by interfering with the

three-month advertising requirement of that section (Count V); (3) whether

H.R. 783 violates the single-subject requirement of Article III, section 3 of the

Pennsylvania Constitution (Count VI); and (4) whether H.R. 783 violates

Article XI of the Pennsylvania Constitution by impermissibly disenfranchising the

voters of this Commonwealth (Count II). Respondents, by contrast, frame the

matter as involving but a single question—i.e., whether the General Assembly

permissibly used a concurrent resolution to move Proposed Constitutional

Amendment 1 to the November 2016 Ballot, “where Article XI, section 1 of the

Pennsylvania Constitution vests the General Assembly with the exclusive authority

to determine the time and manner of submitting constitutional amendments to the

electorate.” (Respondents’ Br. at 2.)

In addition to setting forth arguments in their favor for the issues

framed by Petitioners, Respondents argue that Petitioners are not entitled to

mandamus relief as a matter of law, and, therefore, their count for mandamus relief

(Count IV), in which Petitioners seek to compel the Secretary to certify the results

of the 2016 Primary Election with respect to Proposed Constitutional

Amendment 1, must fail. The Secretary has not filed an application for summary

7

relief. The Secretary has, however, filed a brief in response to Petitioners’

application for summary relief, in which the Secretary asserts the same or similar

arguments as Respondents.

III. DISCUSSION

A. Governing Legal Standards

In evaluating a request for summary relief, the Court applies the same

standards that apply on summary judgment. See Myers v. Commonwealth,

128 A.3d 846, 849 (Pa. Cmwlth. 2015). Summary relief under Pa. R.A.P. 1532(b),

therefore, is appropriate where the moving “party’s right to judgment is clear . . .

and no issues of material fact are in dispute.” McGarry v. Pa. Bd. of Prob. and

Parole, 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003).

“In a case like this one, which calls upon the court to construe an

Article of the Pennsylvania Constitution, the 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.” Ieropoli v. AC&S Corp., 842 A.2d 919, 925 (Pa. 2004). Thus, a

provision of the Constitution “will be interpreted, not in a strained or technical

manner, but as understood by the people who adopted it.” Blum by Blum v.

Merrell Dow Pharm., Inc., 626 A.2d 537, 546 (Pa. 1993). Furthermore, the

various principles of statutory construction apply with equal force in interpreting

the Pennsylvania Constitution. Booth & Flinn v. Miller, 85 A. 457, 459 (Pa. 1912)

(“The established rules of construction applicable to statutes apply also in the

construction of a Constitution.”). To that end, we observe that pursuant to

Section 1922(3) of the Statutory Construction Act of 1971 (Statutory Construction

Act), 1 Pa. C.S. § 1922(3), there is a presumption that “the General Assembly does

not intend to violate the Constitution . . . of this Commonwealth.” Given the

8

strong presumption of constitutionality under Section 1922(3), “[a] party

challenging an act has a heavy burden of persuasion[,]” and “[l]egislation will not

be invalidated unless it clearly, palpably and plainly violates the Pennsylvania

Constitution.” League of Women Voters of Pa. v. Commonwealth, 692 A.2d 263,

269-70 (Pa. Cmwlth. 1997). “[A]ny doubts are to be resolved in favor of a finding

of constitutionality.” Id. at 270. Although Section 1922(3) applies to the

construction of statutes, as noted above those same principles apply to the

construction of constitutional provisions. See Booth & Flinn, 85 A. at 459.

Notwithstanding the applicability of statutory construction principles

in general,

[o]ur Supreme Court has repeatedly stated that “nothing

short of literal compliance” with this detailed process for

the amendment of the fundamental law of our

Commonwealth will suffice. Also, our Supreme Court

has made clear that the analytical model for deciding a

challenge to the enactment of constitutional amendments

is not based on the substantial deference afforded to the

adoption of legislation.

Bergdoll v. Commonwealth, 858 A.2d 185, 193-94 (Pa. Cmwlth. 2004), aff’d,

874 A.2d 1148 (Pa. 2005) (internal citations omitted).

B. Challenge to the Form of H.R. 783 (Count I)

First, we address Petitioners’ argument that the General Assembly

impermissibly used a concurrent resolution to direct the Secretary of the

Commonwealth to remove Proposed Constitutional Amendment 1 from the

April 2016 Ballot in violation of Article III, section 9 of the Pennsylvania

Constitution. Article III, section 9 provides:

Every order, resolution or vote, to which the concurrence

of both Houses may be necessary, except on the question

of adjournment, shall be presented to the Governor and

9

before it shall take effect be approved by him, or being

disapproved, shall be repassed by two-thirds of both

Houses according to the rules and limitations prescribed

in case of a bill.

Petitioners contend that once the General Assembly passed Proposed

Constitutional Amendment 1 by joint resolution for the second time, the Secretary

was required to publish the proposed amendment and submit it to the qualified

electors of the State pursuant to Article XI, section 1 of the Pennsylvania

Constitution. It is undisputed that the Secretary complied with the publication

requirements of Article XI, section 1 of the Pennsylvania Constitution with respect

to the submission of Proposed Constitutional Amendment 1 to the electors on the

April 2016 Ballot. The passage of H.R. 783, and this Court’s refusal to enjoin its

implementation, removed the question from the April 2016 Ballot.5

Petitioners assert that the General Assembly, through H.R. 783,

created an “entirely different species of legislative action” not contemplated under

the General Assembly’s Article XI, section 1 power, by: (1) directing the

Secretary to remove Proposed Constitutional Amendment 1 from the April 2016

5

As we observed in footnote 4 above, the General Assembly followed the mandates of

Article XI, section 1 of the Pennsylvania Constitution in adopting H.B. 79 and H.B. 90 through

two joint resolutions. Joint resolutions are the proper mechanism for placing proposed

constitutional amendments on a future ballot for the electorate’s consideration. See West Shore

Sch. Dist. v. Pa. Labor Relations Bd., 570 A.2d 1354, 1357 (Pa. Cmwlth. 1990) (“The General

Assembly uses joint resolutions for the sole purpose of proposing constitutional amendments.”),

remanded sub nom. Blackwell v. Commonwealth, State Ethics Comm’n, 589 A.2d 1094

(Pa. 1991). Concurrent resolutions are commonly used “for recalling a bill from the Governor or

the other house, returning a bill to the Governor, adjournments sine die or in excess of three

days, recesses in excess of a week and memorializing Congress.” 101 Pa. Code § 9.43(b).

Traditionally, concurrent resolutions have not required approval of the Governor, because they

were not considered an exercise of legislative power. See, e.g., Commonwealth v. Kuphal,

500 A.2d 1205, 1206-07 (Pa. Super. 1985).

10

Ballot; (2) directing the county boards of elections to remove, to the extent

possible, Proposed Constitutional Amendment 1 from the April 2016 Ballot;

(3) directing the Secretary to disregard any vote on Proposed Constitutional

Amendment 1 in the primary election; (4) prohibiting “the Secretary from making

any ‘tally of votes cast on Proposed Constitutional Amendment 1’” for

the 2016 Primary Election; and (5) directing “the Secretary to alter the ballot

question’s language” from that which he drafted on his own accord and placed on

the April 2016 Ballot.” (Petitioners’ Br. at 24-25.) Petitioners assert that nothing

in Article XI, section 1, provides the General Assembly with the authority to direct

the Secretary to remove ballot questions from the ballot once the Secretary has

placed the question on the ballot, disregard an election return, prohibit the

Secretary from tallying votes, or compel the Secretary to alter the language of a

ballot question on a proposed amendment. Rather, Petitioners contend that

pursuant to Article III, section 9 of the Pennsylvania Constitution the substance of

H.R. 783 should have been presented to the Governor for approval as a legislative

bill. Petitioners contend that fundamental separation of powers concerns require

each branch of government to operate within its own “separate sphere of power.”

Jefferson Cnty. Court Appointed Employees Ass’n v. Pa. Labor Relations Bd.,

985 A.2d 697, 706 (Pa. 2009). Based on that reasoning, Petitioners contend that

the General Assembly could not alter the constitutional amendment process that it

set in motion with respect to Proposed Constitutional Amendment 1 without

proceeding under Article III, section 9, because Article XI, section 1 does not

authorize the actions contained in H.R. 783.

Petitioners next address the “time” and “manner” power in Article XI,

section 1 of the Pennsylvania Constitution, which provides that any proposed

11

constitutional amendment “shall be submitted to the qualified electors of the State

in such manner, and at such time at least three months after being so agreed to by

the two Houses, as the General Assembly shall prescribe.” Petitioners argue that

even if portions of H.R. 783 could be derived from this power, such that it need not

be approved by the Governor, H.R. 783’s directives to the Secretary fall outside of

this power because they are in conflict with what is commonly referred to as the

Election Code.6 Petitioners contend that the Election Code “sets forth the specific

contours of the General Assembly’s authority to issue directives to the Secretary as

an Executive Department official. As that authority derives from the Election

Code, H.R. 783 could not alter it without resort to the legislative procedures

mandated in Article III.” (Petitioners’ Br. at 27.) They note that “[b]ecause a

resolution does not have the force and effect of law, our Supreme Court has always

held that the General Assembly cannot use this legislative device as a substitution

for a law.” West Shore Sch. Dist. v. Pa. Labor Relations Bd., 570 A.2d 1354, 1357

(Pa. Cmwlth. 1990), remanded sub nom. Blackwell v. Commonwealth, State Ethics

Comm’n, 589 A.2d 1094 (Pa. 1991). Petitioners contend that H.R. 783 purports to

prohibit the Secretary from complying with his duties under Section 201(c) of the

Election Code, as amended, 25 P.S. § 2621(c), relating to certification to county

boards of elections of “the form and wording of constitutional amendments and

other questions to be submitted to the electors of the State at large,” and

Section 201(f) of the Election Code, as amended, 25 P.S. § 2621(f), which requires

the Secretary to “canvass and compute the votes cast . . . upon questions as

required by the provisions of this act” and “to proclaim the results of such

6

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.

12

primaries and elections.” Finally, Petitioners contend that under Section 605 of the

Election Code, 25 P.S. § 2755, the form of the ballot question is to be determined

by the Secretary and the Attorney General and not by the General Assembly. With

respect to each of these statutory provisions, Petitioners contend that

H.R. 783 affects a change to the law, which can only be accomplished by

legislative bill and through the procedures set forth in Article III of the

Pennsylvania Constitution.

Respondents counter that it is well-established that Article III of the

Pennsylvania Constitution applies only to legislation and is thus inapplicable to the

process for amending the Constitution. Instead Article XI, section 1 of the

Pennsylvania Constitution provides the “complete and detailed process” for

amending the Constitution. Kremer v. Grant, 606 A.2d 433, 436 (Pa. 1992).

Article XI, section 1 exclusively commits to the General Assembly the power to

“prescribe” the “manner” and “time” under which the proposed constitutional

amendments “shall be submitted to the qualified electors” of the Commonwealth.

See Pa. Const. art. XI, § 1. Nothing in Article XI, section 1, however, mandates

how the General Assembly must “prescribe” the time at which and manner by

which a proposed constitutional amendment will be submitted to the electorate—

i.e., whether the General Assembly must do so by joint resolution, concurrent

resolution, or otherwise. Rather, the only requirement under Article XI, section 1

is that “a majority of the members elected to each House” agree to the time and

manner prescription, which Respondents contend occurred through H.R. 783.

Thus, Respondents contend that whether the General Assembly passed a joint

resolution or concurrent resolution is irrelevant to Article XI, section 1, as both

comply with the constitutional requirements set forth therein.

13

Respondents dispute the General Assembly’s characterization of

H.R. 783 as representing “an entirely different species of legislative action.”7 They

emphasize that Article XI, section 1 expressly empowers the General Assembly to

direct the Secretary when (time) and how (manner) to submit a proposed

constitutional amendment to the qualified electors of the Commonwealth, with the

only limit being that it may not be submitted before three months after being

agreed to by both Houses (presumably to allow the Secretary to satisfy the

publication requirements). Moreover, Respondents note that Section 605 of the

Election Code is consistent with Article XI, section 1 of the Pennsylvania

Constitution, in that it too exclusively commits to the General Assembly the power

to “prescribe” the “manner and time of submitting to the qualified electors of the

State any proposed amendment or amendments to the Constitution for the purpose

of ascertaining whether the same shall be approved by a majority of those voting

thereon.” Accordingly, Respondents maintain that the General Assembly has acted

consistent with both the Pennsylvania Constitution and the Election Code by

directing the time at which and manner by which the Secretary is to submit

Proposed Constitutional Amendment 1 to the electors of the Commonwealth, and,

the Secretary has the legal obligation under both to follow the prescriptions.

Because the General Assembly exercised powers committed exclusively to it,

Respondents argue there can be no violation of the separation of powers, and

Article III, section 9 is inapplicable.

We now hold that H.R. 783 was a valid exercise of the General

Assembly’s exclusive power under Article XI, section 1 of the Pennsylvania

7

(Respondents’ Br. at 13 (quoting Petitioners’ Br. at 24).)

14

Constitution to prescribe both the time at which and manner by which the

Secretary is to submit Proposed Constitutional Amendment 1 to the qualified

electors of this Commonwealth for their consideration. The Pennsylvania Supreme

Court has recognized that Article XI, section 1 of the Pennsylvania Constitution

provides the “complete and detailed process for the amendment of that

document.”8 See Kremer, 606 A.2d at 436. In Mellow v. Pizzingrilli,

800 A.2d 350 (Pa. Cmwlth. 2002) (en banc), we explained:

Because a proposed constitutional amendment is

not a “law,” the provisions of Article III relating to the

enactment of legislation are inapplicable. . . . In this

respect, [amendment of the Pennsylvania Constitution] is

not a legislative act at all, but a separate and specific

power granted to the General Assembly, similar to the

impeachment and trial powers granted to the House of

Representatives and Senate, respectively, under

Article VI, Sections 4 and 5. As to the impeachment

power, we have held that the trial procedures are within

the exclusive power of the Senate and are not subject to

invasion by the Courts. Similarly, we believe that

Article XI has vested the power to propose amendments

in the General Assembly. Other than the express

requirements set forth in Article XI, the procedure to be

used in proposing such amendments is exclusively

committed to the legislature.

Mellow, 800 A.2d at 359 (citations omitted); see also Grimaud v. Commonwealth,

806 A.2d 923 (Pa. Cmwlth. 2002) (en banc) (following Mellow), aff’d,

865 A.2d 835 (Pa. 2005).

8

Our reasoning is consistent with the Court’s opinion and order, dated April 20, 2016,

amended April 28, 2016, in which the Court denied Petitioners’ application for special relief in

the nature of a preliminary injunction.

15

Although Mellow addressed challenges regarding only the “manner”

of amendments, it is nevertheless instructive here. In Mellow, we considered

several challenges to two constitutional amendments approved by the electorate

during the May 2001 Primary Election. In one of the challenges, the petitioners in

that case contended that one of the amendments should be set aside because the

joint resolutions passed in 1998 and 2000 by the General Assembly did not contain

identical language. This Court rejected that argument, refusing to curb the General

Assembly’s power under Article XI, section 1 beyond the express limits set forth

in that constitutional provision. “Because Article XI does not require identical

language or content in the resolutions (as opposed to the proposed amendment

itself),” we opined “there is no constitutional violation.” Mellow, 800 A.2d at 359.

By its express terms, H.R. 783 sets both the time at which and manner

by which Proposed Constitutional Amendment 1 is to be submitted to the

electorate in that it removes the question from the April 2016 Ballot and moves the

question to the November 2016 Ballot. Under Mellow, the power of the General

Assembly to set the time at which and manner by which amendments to the

Pennsylvania Constitution are to be submitted to the electorate is an Article XI,

section 1 power. Pursuant to Article XI, section 1 of the Pennsylvania

Constitution, the power granted therein is exclusive to the General Assembly. The

only express constitutional limitation on time is that it must be submitted at least

three months after final agreement by the two houses of the General Assembly,

which is not at issue here.9 Id. We agree with Respondents that nothing in

9

H.R. 783 expressly provides for the re-publication and re-advertising of Proposed

Constitutional Amendment 1, as well as the plain English statement of the OAG, in each of the

three months prior to the 2016 General Election. Thus, even though the Secretary already had

(Footnote continued on next page…)

16

Article XI, section 1 mandates how the General Assembly must “prescribe” the

time at which and manner by which a proposed constitutional amendment will be

presented to the electorate. Thus, it is immaterial whether the General Assembly

did so by joint or concurrent resolution, so long as “a majority of the members

elected to each House” agreed to the time and manner prescription.10 Id.

Even if we were to agree with Petitioners’ general proposition that the

General Assembly could not use H.R. 783 to impose directives on the Secretary

that are inconsistent with the Secretary’s directives set forth in the Election Code,

we conclude that H.R. 783 is not so flawed. First, H.R. 783 does not alter the

duties of the Secretary or prohibit the Secretary from complying with his duties

under Section 201(c) of the Election Code. Section 201(c) of the Election Code

requires the Secretary to do the following:

To certify to county boards of elections for

primaries and elections the names of the candidates for

President and Vice-President of the United States,

presidential electors, United States senators,

representatives in Congress and all State offices,

including senators, representatives, and judges of all

courts of record, and delegates and alternate delegates to

National conventions, and members of State committees,

(continued…)

complied with the publication and advertisement requirements of Article XI, section 1 of the

Pennsylvania Constitution in advance of the 2016 Primary Election, the General Assembly took

this additional step to ensure notice to the electorate by directing the Secretary to re-publish and

re-advertise. In his papers submitted to the Court, the Secretary has indicated his intentions to

re-publish and re-advertise.

10

As this Court in Mellow observed, “[i]ndeed, the General Assembly may properly

choose to consider a proposed constitutional amendment under the title of a ‘bill,’ ‘act,’

‘resolution,’ or a ‘mystery wrapped in an enigma,’ a title that might be more forthright in many

instances.” Mellow, 800 A.2d at 359 n.11.

17

and the form and wording of constitutional amendments

or other questions to be submitted to the electors of the

State at large.

(Emphasis added.) On this issue, H.R. 783 provides that “the Secretary of the

Commonwealth [shall] remove the ballot question for Proposed Constitutional

Amendment 1 from the ballot certification for the primary election on

April 26, 2016.” As a result of H.R. 783, which this Court refused to enjoin

preliminarily, Proposed Constitutional Amendment 1 was not a question submitted

to the electorate on the April 2016 Ballot. Clearly, Section 201(c) of the Election

Code does not empower the Secretary to certify to the county boards of elections

the form and wording of a constitutional amendment that is not to be submitted to

the electors of the State at large. Thus, H.R. 783 appears to do nothing more than

echo existing law with respect to the Secretary’s duties.

Second, H.R. 783 does not alter the duties of the Secretary or prohibit

the Secretary from complying with his duties under Section 201(f) of the Election

Code. Section 201(f) of the Election Code, requires the Secretary to “canvass and

compute the votes cast . . . upon questions as required by the provisions of this act”

and “to proclaim the results of such primaries and elections.” On this subject,

H.R. 783 provides: “RESOLVED, That the [S]ecretary disregard any vote on

Proposed Constitutional Amendment 1 in the primary election on April 26, 2016,

and the [S]ecretary not make a tally of votes cast on Proposed Constitutional

Amendment 1.” (Emphasis added.) Like our analyses above, we look to

Section 201(f) of the Election Code and what it does and does not require of the

Secretary. By its terms, Section 201(f) of the Election Code only requires the

Secretary to canvass and compute the votes cast on questions lawfully placed

before the electorate—i.e., “questions as required by the” Election Code. In light

of H.R. 783, Proposed Constitutional Amendment 1 was not a question submitted

18

to the electorate, regardless of its presence on some ballots. Thus, the Secretary is

under no legal obligation to “canvass and compute” votes cast on Proposed

Constitutional Amendment 1 during the 2016 Primary Election. A corollary to this

legal conclusion is that the Secretary has no authority to canvass and compute

votes cast on a question that is not before the electorate.

Finally, we address Petitioners’ claim that H.R. 783 alters the duties

of the Secretary or prohibits the Secretary from complying with his duties under

Section 605 of the Election Code. Section 605 of the Election Code provides, in its

entirety:

Unless the General Assembly shall prescribe

otherwise with respect to any particular proposed

amendment or amendments and the manner and time of

submitting to the qualified electors of the State any

proposed amendment or amendments to the Constitution

for the purpose of ascertaining whether the same shall be

approved by a majority of those voting thereon, the said

amendment or amendments which have heretofore, or

which may hereafter be proposed, and which have not

been submitted to the qualified electors of the State, shall

be submitted to the qualified electors of the State for the

purpose aforesaid, at the first municipal or general

election at which such amendment or amendments may

be legally submitted to the electors, which election shall

occur at least three months after the date upon which

such proposed amendment or amendments shall have

been agreed to for the second time by a majority of the

members elected to each house of the General Assembly,

as provided in Article Eighteen,[11] section one of the

Constitution. Said election shall be conducted on said

election day in the manner prescribed by the provisions

of this act. Such proposed constitutional amendments

shall be printed on the ballots or ballot labels in brief

11

Renumbered as Pa. Const. art. XI, § 1.

19

form to be determined by the Secretary of the

Commonwealth with the approval of the Attorney

General.

(Emphasis added.) Although not as developed as some of Petitioners’ other

arguments, Petitioners appear to challenge the ability of the General Assembly,

through its Article XI, section 1 “time” and “manner” power, to set the form, or

wording, of the constitutional amendment submitted to the electorate. In other

words, Petitioners appear to raise a conflict between H.R. 783 and Section 605 of

the Election Code.

During oral argument in this matter, the Court expressed concern to

the parties that such a conflict could arise if either the Secretary or the Attorney

General rejected the form of Proposed Constitutional Amendment 1 set forth in

H.R. 783. In his filings with the Court in this matter, however, the Secretary has

indicated that he will follow the form of the question set forth in H.R. 783.

(Secretary’s Br. at 3, 22.) In addition, the Secretary, through his application for

leave to file post-submission communication, which the Court granted, submitted a

letter by Solicitor General Bruce L. Castor, Jr., dated June 14, 2016, wherein the

Solicitor General, on behalf of the OAG, conveyed his approval of the form of

Proposed Constitutional Amendment 1, as set forth in H.R. 783. In light of these

facts, the debate over whether H.R. 783 conflicts with Section 605 of the Election

Code with respect to the form of the ballot question has become academic.

As a general rule, courts will not decide moot cases. “[A] case is

moot if there is no actual case or controversy in existence at all stages of the

controversy.” Phila. Pub. Sch. Notebook v. Sch. Dist. of Phila., 49 A.3d 445, 448

(Pa. Cmwlth. 2012). As this Court explained in Philadelphia Public School

Notebook:

20

Mootness problems arise in cases involving litigants who

clearly had one or more justiciable matters at the outset

of the litigation, but events or changes in the facts or law

occur which allegedly deprive the litigant of the

necessary stake in the outcome after the suit is underway.

Id. It is well settled that the courts “do not render decisions in the abstract or offer

purely advisory opinions.” Pittsburgh Palisades Park, LLC v. Commonwealth,

888 A.2d 655, 659 (Pa. 2005). Judicial intervention “is appropriate only where the

underlying controversy is real and concrete, rather than abstract.” City of

Philadelphia v. Commonwealth, 838 A.2d 566, 577 (Pa. 2003).

As with most rules of general application, there are exceptions to the

mootness doctrine for circumstances where “(1) the conduct complained of is

capable of repetition yet evading review, or (2) involves questions important to the

public interest, or (3) will cause one party to suffer some detriment without the

Court’s decision.” Cytemp Specialty Steel Div., Cyclops Corp. v. Pa. Pub. Util.

Comm’n, 563 A.2d 593, 596 (Pa. Cmwlth. 1989). Notwithstanding these

exceptions, however, we note that “‘[c]onstitutional questions are not to be dealt

with abstractly.’” Wortex Mills v. Textile Workers Union of Am., 85 A.2d 851, 857

(Pa. 1952) (quoting Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 22

(1931); see In re Gross, 382 A.2d 116, 120 (Pa. 1978). This Court, therefore,

should be even more reluctant to decide moot questions which raise constitutional

issues. See id. Instead, we “prefer to apply the well-settled principles that [courts]

should not decide a constitutional question unless absolutely required to do so.”

Krenzelak v. Krenzelak, 469 A.2d 987, 991 (Pa. 1983); see also Atlantic–Inland,

Inc. v. Bd. of Supervisors of West Goshen Twp., 410 A.2d 380, 383 (Pa.

Cmwlth. 1980) (opining that “a court will not consider a constitutional issue unless

it is clearly necessary to do so to dispose of the case before it”).

21

Clearly, there is a prevailing debate over whether the General

Assembly has the power, under Article XI, section 1 of the Pennsylvania

Constitution and Section 605 of the Election Code, to set the form of the ballot

question to the exclusion of the Secretary and the Attorney General. There is,

however, no case or controversy because, in light of an intervening event—i.e.,

approval of the question by the OAG—resolution of that dispute will have no

bearing on the form of the question for Proposed Constitutional Amendment 1 on

the November 2016 Ballot. The issue, therefore, is moot. The Court declines to

consider the dispute under any of the exceptions to the mootness doctrine. The

General Assembly infrequently exercises its Article XI, section 1 power with

respect to constitutional amendments. If, in the context of future proposed

amendments, a dispute arises between the General Assembly, the Secretary, and/or

the Attorney General as to which has the ultimate power to set the form of the

ballot question to be presented to the electorate, we see no reason why such a

dispute could not be resolved at that time.

With respect to the great public importance exception, the

Pennsylvania Supreme Court has opined: “It is only in very rare cases where

exceptional circumstances exist or where matters or questions of great public

importance are involved, that this court ever decides moot questions or erects

guideposts for future conduct or actions.” Wortex Mills, 85 A.2d at 857. Although

the substance of Proposed Constitutional Amendment 1 is of great public

importance, we are not convinced that resolution of an abstract dispute over who

sets the form of the ballot question rises to such a level, particular where, as here,

the two branches of government that stand on opposite sides of this hypothetical

22

power struggle agree on the form of the question. We are not inclined to foment

discord where there is common ground.

As to the third exception to the mootness doctrine, no harm or

detriment will befall Petitioners if we do not resolve this question. As noted

above, the form of the question has been set and agreed to by all parties in

interest—the General Assembly, the Secretary, and the Attorney General.

Petitioners gain nothing and lose nothing by our refusal to decide this moot

question. Finally, resolution of this moot question involves consideration of the

General Assembly’s power under Article XI, section 1 of the Pennsylvania

Constitution. As noted above, we are reluctant to resolve constitutional issues in

the absence of a true case and controversy. Accordingly, Petitioners’ challenge to

H.R. 783 as presenting a conflict over which, as between the General Assembly or

the Secretary with the approval of the Attorney General, sets the form of Proposed

Constitutional Amendment 1 to be submitted to the qualified electors of this

Commonwealth is moot.

C. H.R. 783 and the Three-month Advertising Requirement

(Count V)

As discussed above, Article XI, section 1 of the Pennsylvania

Constitution provides, in relevant part, that following the passage of a proposed

constitutional amendment by a majority of the members of both houses of the

General Assembly in two consecutive sessions,

the Secretary of the Commonwealth shall cause the same

again to be published . . . and such proposed amendment

or amendments shall be submitted to the qualified

electors of the State in such manner, and at such time at

least three months after being so agreed to by the two

Houses, as the General Assembly shall prescribe.

23

With regard to the manner of publication, Article XI, section 1 of the Pennsylvania

Constitution provides that the proposed amendment “be published three months

before the next general election, in at least two newspapers in every county in

which such newspapers shall be published.”

Petitioners contend that H.R. 783 compels the Secretary to act

contrary to his duties under Article XI, section 1 of the Pennsylvania Constitution,

because it prevents him from completing the process to effect the proposed

amendment to the Pennsylvania Constitution in the time-frame initially established

by the General Assembly and as originally advertised. Petitioners disagree with

the Court’s earlier interpretation of Article XI,12 which recognized the General

Assembly’s exclusive authority over the time and manner of placing a proposed

amendment on the ballot as including the authority to move a proposed amendment

from a primary election to the next following general election. They argue that if

the General Assembly were to have unconstrained power over the “time” and

“manner” of the vote on a proposed amendment it could permanently remove a

proposed amendment from the ballot at any time before voting begins. Such

ability, according to Petitioners, would contravene the intentions of the framers of

Article XI.

Petitioners also observe that our Supreme Court has identified two

independent reasons for the requirement that there be statewide advertising of a

proposed amendment, specifically (1) to inform voters that a proposed

constitutional amendment will be placed on the next election ballot and to explain

12

Petitioners refer to the Court’s order dated April 20, 2016, amended April 28, 2016,

denying Petitioners’ application for special relief in the nature of a preliminary injunction.

24

the substance of the proposed amendment, and (2) to provide a three-month

window during which voters may ascertain the attitudes of the candidates with

regard to the proposed amendment. See Kremer, 606 A.2d at 438.13 With regard

to ascertaining attitudes, the three-month window enables the voters to have

sufficient time to determine how Senate and House candidates on that same ballot

voted on the proposed amendment. Under the current scenario, Petitioners contend

that, because H.R. 783 was not advertised, voters were not provided a sufficient

opportunity to determine which candidates voted to remove the proposed

amendment from the April 2016 Ballot. For these reasons, Petitioners urge the

Court to construe Article XI to prohibit any alteration of the vote on a proposed

amendment within three months of the originally prescribed election.

Respondents counter that Petitioners’ argument is based on the faulty

assumption that H.R. 783 is somehow subject to the advertising requirements of

Article XI, section 1 of the Pennsylvania Constitution. Respondents contend that,

by its express terms, Article XI, section 1 requires only publication of the

“proposed amendment or amendments.” Pa. Const. art. XI, § 1. Respondents

observe that Petitioners ignore that H.R. 783 expressly provides for the

re-publication and re-advertising of Proposed Constitutional Amendment 1, as well

as the “plain English” statement of the OAG, in each of the three months prior to

the 2016 General Election. Furthermore, Respondents observe that voters will

13

In Kremer, our Supreme Court wrote:

For if an informed electorate disagrees with the proposed amendments, they will

have an opportunity to indicate their displeasure at the ballot box and elect

individuals to the next General Assembly with different attitudes.

Kremer, 606 A.2d at 438.

25

have more than three additional months to research and perform due diligence as to

Proposed Constitutional Amendment 1 and candidates. Respondents agree that a

permanent removal of a proposed constitutional amendment arguably would be

contrary to Article XI, section 1, but they observe that no such permanent removal

is contemplated by H.R. 783.

We are unswayed by Petitioners’ concern that this Court’s

interpretation of the General Assembly’s “time” and “manner” power under

Article XI, section 1 is so unfettered that it would allow the General Assembly to

thereafter refuse to place a ballot question, passed by both Houses in two

consecutive legislative sessions, before voters in the next following general

election, at the latest. Indeed, such a scenario would not likely survive judicial

scrutiny. H.R. 783, however, provides that Proposed Constitutional Amendment 1

will be before voters for their consideration on the next general election ballot

following second consideration by both Houses of the General Assembly, that

being the November 2016 Ballot.

We are also unpersuaded by Petitioners’ argument that H.R. 783

violated the publications requirements of Article XI, section 1. Nothing in

Article XI, section 1 of the Pennsylvania Constitution requires publication or

advertising of H.R. 783. Two of the Secretary’s constitutional duties under

Article XI, section 1 are related to publication of proposed amendments following

each passage by the General Assembly. There is no contention in this case that the

Secretary failed to comply with those publication mandates. In fact, the record is

clear that Proposed Constitutional Amendment 1 was advertised in accordance

with Article XI, section 1. Moreover, under H.R. 783, Proposed Constitutional

Amendment 1 will be re-published and re-advertised, and voters will have

26

additional time to consider the amendment and the attitudes of candidates with

respect thereto, so the intent behind Article XI, section 1 will be fulfilled.

The Secretary’s third constitutional duty requires the Secretary to

place a proposed constitutional amendment before the electorate “in such manner,

and at such time at least three months after being so agreed to by the two Houses,

as the General Assembly shall prescribe.” Pa. Const. art. XI, § 1 (emphasis

added). It is implicit that the reason why the General Assembly and, by extension,

the Secretary must wait at least three months before putting the question before the

electorate is to provide sufficient time for the Secretary to comply with the

three-month advertising period described above. The General Assembly, through

H.R. 783, has set the 2016 General Election (the latest possible election) as the

time that Proposed Constitutional Amendment 1 should be placed before the

electorate. As of the date of this opinion, there is sufficient time for the Secretary

to re-publish and re-advertise consistent with Article XI, section 1 of the

Pennsylvania Constitution and the goals articulated by the Pennsylvania Supreme

Court in Kremer.

For these reasons, we conclude that H.R. 783 does not itself cause a

violation of the advertising requirements in Article XI, section 1 of the

Pennsylvania Constitution.

D. H.R. 783 and the Single-Subject Rule (Count VI)

Petitioners argue that if H.R. 783 is examined as if it were a bill,

rather than a concurrent resolution, it is facially deficient, as it impermissibly

covers more than one subject in violation of Article III, section 3, of the

Pennsylvania Constitution, relating to the “[f]orm of bills.” (Emphasis added.)

Article III, section 3 of the Pennsylvania Constitution provides:

27

No bill shall be passed containing more than one subject,

which shall be clearly expressed in its title, except a

general appropriation bill or a bill codifying or compiling

the law or a part thereof.

(Emphasis added.) Our Supreme Court has identified what it refers to as the “twin

requirements” of Article III, section 3, as the requirements “that each bill have only

one subject, and that the subject be clearly expressed in the title.” City of

Philadelphia, 838 A.2d at 585. In City of Philadelphia, our Supreme Court

described the reasons why Pennsylvanians incorporated Article III, section 3 into

the Pennsylvania Constitution of 1874, including distrust of corporate influence

upon the General Assembly and a resulting desire to make the deliberative process

of legislative enactment more visible to our citizens. Id. at 585-86. By adopting

Article III, section 3, Pennsylvanians sought to address a number of practices that

members of the General Assembly occasionally employed to obtain passage of

legislation without subjecting the legislation to an open and deliberative process.

In support of their argument that H.R. 783 violates the single-subject

requirement of Article III, section 3 of the Pennsylvania Constitution, Petitioners

contend that H.R. 783 attempts to, in part: (1) effect a change in time for the vote

on an amendment to Article V, section 16(b) of the Pennsylvania

Constitution; (2) direct action by a member of the executive branch—i.e., the

Secretary; and (3) modify portions of the Election Code for the primary and

general elections of 2016. Petitioners contend that H.B. 783 cannot do all three

and still comply with the single-subject requirement of the Pennsylvania

Constitution and, therefore, must be held unconstitutional in toto. In support of

this position, Petitioners rely on Pennsylvania State Association of Jury

Commissioners v. Commonwealth, 64 A.3d 611 (Pa. 2013), for the proposition that

28

the single-subject requirement is violated where dual functions of government are

addressed in the same bill.

Respondents counter that Article III, section 3 of the Pennsylvania

Constitution applies only to legislation and is inapplicable to the process for

amending the Constitution. Respondents further argue that even if H.R. 783 were

governed by Article III, section 3, H.R. 783 is limited to the single-subject matter

of prescribing the time and manner by which Proposed Constitutional

Amendment 1 is to be submitted to the electorate, and those functions

constitutionally rest with the General Assembly.

We agree with Respondents that H.R. 783 is not a legislative bill and,

therefore, is not governed by Article III. Rather, as discussed above, actions by the

General Assembly relating to the “time” and “manner” of amending the

Pennsylvania Constitution are governed exclusively by Article XI, section 1 of the

Pennsylvania Constitution, Mellow, which does not contain a single-subject

requirement.

Assuming, however, Article III, section 3 did apply, H.R. 783 would

pass constitutional muster under a single-subject analysis. The stated subject and

objective for H.R. 783 is “providing for submission to the electorate of a

constitutional amendment on retirement for justices, judges and justices of the

peace.” H.R. 783. All of the provisions of H.R. 783 assist in carrying out this

main objective and are otherwise germane to its stated subject matter. See City of

Philadelphia, 838 A.2d at 587 (“[T]he strictures of Article III, [s]ection 3 are often

satisfied where the provisions added during the legislative process assist in

carrying out a bill’s main objective or are otherwise ‘germane’ to the bill’s subject

as reflected in its title.”). Moreover, as noted above, any portions of H.R. 783 that

29

Petitioners characterize as “directives” to the Secretary merely recognize the

Secretary’s duties under Article XI, section 1 of the Pennsylvania Constitution or

the Election Code and do not change those duties.

For these reasons, we conclude that H.R. 783 does not violate the

single-subject requirement of Article III, section 3 of the Pennsylvania

Constitution.

E. H.R. 783 and Voter Disenfranchisement (Count II)

Petitioners’ argument as to why H.B. 783 disenfranchises voters has

changed over time. Originally, they argued that voters were disenfranchised

because some had cast absentee ballots at the time that H.B. 783 was passed. They

now argue that despite H.R. 783 and this Court’s refusal to enjoin its

implementation, many voters voted on Proposed Constitutional Amendment 1

during the 2016 Primary Election. Failure to count those votes, Petitioners argue,

equates to voter disenfranchisement. Petitioners theorize that the electorate will be

confused if asked again to vote on Proposed Constitutional Amendment 1 in a

revised form, given that voters may not vote on the same amendment within five

years. See Pa. Const. art. XI, § 1. Petitioners contend that election night results

from the 2016 Primary Election show that a majority of voters rejected Proposed

Constitutional Amendment 1 and that H.R. 783 essentially nullifies the will of the

majority.

Respondents’ argument in opposition is succinct and compelling—

there can be no voter disenfranchisement in the absence of a right to vote—and we

30

agree with Respondents.14 In light of H.B. 783, and this Court’s refusal to enjoin

its implementation, Proposed Constitutional Amendment 1 was not before the

electorate on the April 2016 Ballot, regardless of how successful some or even

most counties were at removing the question or informing voters that their votes on

the proposed amendment would not be counted. H.R. 783 in no way

disenfranchised voters who had no right to vote on the Proposed Constitutional

Amendment 1 in the first place and who were only able to vote because of

insufficient measures to fully advise voters that Proposed Constitutional

Amendment 1 was not before the electorate on the April 2016 Ballot.

Moreover, as observed by the Secretary:

Petitioners’ position, if adopted, would work the only

true disenfranchisement, by denying voters who properly

refrained from voting on the questions a say in the

outcome. Whether or not H.R. 783 is a proper exercise

of the General Assembly’s constitutional authority, the

purported “vote” on the proposed amendment during the

[2016 Primary Election] cannot, under any rational view,

be retroactively deemed official.

(Secretary’s Br. at 13.) Furthermore, the prohibition in Article XI, section 1 of the

Pennsylvania Constitution that “no amendment or amendments shall be submitted

oftener than once in five years,” was also set forth in Article XVIII of the

Pennsylvania Constitution of 1874. See Stander v. Kelley, 250 A.2d 474, 480

14

Because we agree with Respondents that there can be no voter disenfranchisement for a

question not before the electorate, we need not discuss the parties’ arguments regarding the

number of voters who did or did not vote on Proposed Constitutional Amendment 1 when some

county boards of elections were unable to remove it from the April 2016 Ballot. We also need

not address Respondents’ arguments that Petitioners relied upon disputed facts (i.e., “unofficial”

and incomplete statewide election returns that are not part of the record) or documents presented

at the preliminary injunction hearing.

31

(Pa. 1969). As to both Pennsylvania Constitutions, our Supreme Court interpreted

that clause as referring to an amendment that had been previously submitted and

rejected and not one that was never before submitted to the electorate. Id. For the

reasons explained above, Proposed Constitutional Amendment 1 was not submitted

to and rejected by the electorate in the 2016 Primary Election. Accordingly, it may

be placed before the electorate during the 2016 General Election without violating

the five-year provision in Article XI, section 1.

Finally, Petitioners appear to seek relief previously denied by this

Court—i.e., consideration of Proposed Constitutional Amendment 1 as part of the

2016 Primary Election and the counting and certification of the votes cast in that

election with respect to that ballot question. The law of the case doctrine provides

additional grounds to refuse this request. The law of the case doctrine provides

that Pennsylvania courts “should not reopen questions decided by another judge of

that same court or by a higher court in the earlier phases of the matter.” Ario v.

Reliance Ins. Co., 980 A.2d 588, 597 (Pa. 2009). The Court’s order dated

April 20, 2016, denied Petitioners’ injunctive relief and, by law, conclusively

removed Proposed Constitutional Amendment 1 from the April 2016 Ballot.

Practicality and the law of the case doctrine dictate that our prior ruling cannot

now be undone. As a result, inclusion of Proposed Constitutional Amendment 1

on the November 2016 Ballot is not only appropriate under the law, but it is also

necessary in order to afford the entire electorate an opportunity to vote on the

amendment.

F. Mandamus Relief (Count IV)

Respondents argue that Petitioners improperly seek mandamus relief

to compel the Secretary to count and certify the votes taken on Proposed

Constitutional Amendment 1 in the 2016 Primary Election in accordance with his

32

constitutional and statutory duties. “A writ of mandamus is ‘an extraordinary

remedy which compels official performance of a ministerial act or mandatory duty,

as opposed to a discretionary act.’” Griffin v. Pa. Dep’t of Corr., 862 A.2d 152,

154 n.1 (Pa. Cmwlth. 2004) (quoting Africa v. Horn, 701 A.2d 273, 275

(Pa. Cmwlth. 1975)). A writ of mandamus may issue only 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.” Brown v. Levy,

73 A.3d 514, 516 n.2 (Pa. 2013). Mandamus will not issue where “it is apparent

that the writ will be futile or ineffectual by reason of the inability of the respondent

to comply therewith.” Commonwealth ex rel. McLaughlin v. Erie Cnty.,

100 A.2d 601, 604 (Pa. 1953).

Respondents argue that the duty Petitioners demand the Secretary to

perform—i.e., counting and certifying the 2016 Primary Election votes—is

impossible, because H.R. 783, which this Court declined to enjoin, removed

Proposed Constitutional Amendment 1 from the April 2016 Ballot. As a result, not

all voters were able to vote on the proposed amendment and any election results

were unofficial and incomplete. Also, Respondents argue that Petitioners have not

established either a clear right to relief or a corresponding duty on the part of the

Secretary, as the Secretary’s duty to count and certify votes cast on a ballot

question is only triggered when that question is placed before the electorate, which

did not occur in connection with the April 2016 Ballot. Finally, Respondents argue

that an adequate remedy exists at law, namely that all qualified electors will be

permitted to cast their vote on Proposed Constitutional Amendment 1 during the

2016 General Election.

33

We agree with Respondents that Petitioners, as a matter of law, are

not entitled to mandamus relief for all the reasons enumerated above. Simply put,

the Secretary can have no duty to count and certify votes on a ballot question not

submitted to the electorate, and Proposed Constitutional Amendment 1 was not on

the April 2016 Ballot. Thus, Petitioners’ count for mandamus relief must fail.

IV. Conclusion

Accordingly, we deny Petitioners’ application for summary relief,

grant Respondents’ application for summary relief, and enter judgment in favor of

Respondents.

P. KEVIN BROBSON, Judge

34

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Senator Jay Costa, Pa. 43rd District, :

Senator Daylin Leach, Pa. 17th District, :

in their Official Capacities, and :

Senator Christine M. Tartaglione, Pa. :

2nd District, in her Official Capacity :

and individually on behalf of qualified :

electors in the Commonwealth of :

Pennsylvania, :

Petitioners :

:

v. : No. 251 M.D. 2016

:

Secretary Pedro A. Cortes, Senator :

Joseph B. Scarnati, Pa. 25th District, :

and Senator Jacob Corman III, :

Pa. 34th District, each in their :

Official Capacities, :

Respondents :

ORDER

AND NOW, this 6th day of July, 2016, upon consideration of the

cross-applications for summary relief filed by the Honorable Jay Costa, the

Honorable Daylin Leach, and the Honorable Christine M. Tartaglione (Petitioners)

and by the Honorable Joseph B. Scarnati and the Honorable Jacob Corman III

(Respondents), it is hereby ordered that Petitioners’ application for summary relief

is DENIED and Respondents’ application for summary relief is GRANTED.

Judgment is entered in favor of Respondents.

P. KEVIN BROBSON, Judge