Appellants Reply Brief — Lindsay v. Kelley

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L418 1259 = €-

Supreme Court of the United States =f

October Term, 1968.

No. 1370.

ALEXANDEF H. LINDSAY,

: Appellant,

Vv.

JOSEPH J. KELLEY, JR,

Secretary of the Commonwealth of Pennsylvania,

Appellee.

APPELLANT’S REPLY TO APPELLEE’S MOTION TO

DISMISS AND REPLY TO MOTION OF THE PENN-

SYLVANIA BAR ASSOCIATION FOR LEAVE

_TO FILE A BRIEF AMICUS CURIAE.

James E. Bras.ey,

525 Broad-Locust Building,

Philadelphia, Pa. 19102

Attorney for bections.

International, 711 So. 50th St., Phila., Pa. 19143—Tel. SA‘ 7-8711 Area Code 215 ~°

We Tay ame = staammaniae

INDEX.

; ; s Page

A. Contra Amicus “History of Constitutional Reform in Pa.” 1

B. All Federal Issues Were: Before the Court Below ........ 2

S.C SN Sh on cineca cai netshe cus uawnenne oe 3

D. Judicial v. Legislative Supremacy . ae Per TT eT ere 6

E. Abrogation of Pennsylvania Constitutional Protections .... 11

CORI cn ki inc cue cee eescnatakvanswenen pinnenvenunes 13

Excerpt From Brief of Interested Person in Pennsylvania

NG SIE <6 oi keccccrsaviares en eniiwannees ced we

TABLE OF CITATIONS. .

Page

Cases:

City of Beaumont Independent School District, 164 S. W. 2d

DD Caiscctcuciriene Cakknsnateraeenes eyimiients

Commonwealth v. McHugh, 406 Pa. 566: (1962) .+........- 12

Douglas v. State of Alabama, 380 U. S. 423, 85 S.Ct. 1074... 3.

Harris-Walsh, Inc: v. Borough of Dickson City, 420 Pa. 258

EE ives kanes ee ee ee 12

Kirkpatrick v. Preisler, Henkel v. Prisler, 394 U. S. 526, 89 |

ee iy nccsua uncon ens rer pe rere wiaaws 4

Manhattan Life Ins. Co. of New York v.-Cohen, 234 U. S. 123,

Ss eS eee etre rere Serer cane as 3

Marbury ‘v. Madison, t Cranch 137, 2 L. Ed. 60 (1803) .... 8

McDonald v. Pless, 238 U.S. 264 (1915) ............0... 9

Michaelson v.'U. S., 266 U. S. 42 (1924) .......... ieee . §

Ralery v. State of Ohio, 360 U. S. 423, 79 S. Ct. 1257 ...... 3

U.S. v. Hudson & Goodwin, 7 Cranch 32, 3 L. Ed. 259 (1812) 9

Webb v. Frohmiller, 52 Ariz. 128, 79 P. 2d 510°............ 12

“Wells v. Rockefeller, 394 U. S. 542, 89 S. Ct. 1234 ........ 4

4

Wesberry v. Sanders, 3706 U.S. 1 (1964) ......... 2. eee eee.

°

ts ceed |

POIROT RRR yee ty age

. .

asia ter Renate

TABLE OF CITATIONS (Continued).

Dictionaries: ths - oe, eRe

American College Dictionary, Random House, Inc., p. 16,854

(1966) ...... fe PPLE er oe rm, ee Pen ate’ 12

Black Law Dictionary, West Publishing Co., pp. 65, 1251

IAS x cxcans cb abbnekeed she cccusanaek eke eiakens “12

Webster’s Seventh New Collegiate Dictionary, G & C Merriam ©

Ci SE CUI nai Sinscnccncedac i eres 12

Publication:

_ Jefferson, Works, 3:223 ............. PeKkaaaawerenkweuns 14

Pennsylvania Statute:

Act No. 2 of 1967 ..... SO I en ne NFR 4,11, 13

Pennsylvania Constitution: © S he

Tae ie pe ree en ere ery 12, 13

United States Constitution: .

Pe Se aes awe bean anes pyrene 8

Q

IN THE

Supreme Court of the United States

Ocroper TERM, 1968.

No. 1370.

ALEXANDER H. LINDSAY,

| Appellant,

JOSEPH J. KELLEY,.JR.,

SECRETARY OF THE CoMMON WEALTH OF PENNSYLVANIA,

: Sppenee.

APPELLANT'S REPLY TO APPELLEE'S MOTION TO

DISMISS AND REPLY TO MOTION OF THE PENN-

SYLVANIA BAR ASSOCIATION FOR LEAVE

-TO FILE.A BRIEF AMICUS CURIAE.

A. Contra Amicus “History of Constitutional —

Reform in Pa.”

Characteristic of its position in this case, the Pennsyl-

vania Bar Association has represented to this Court

§‘facts’’ not of record, generalities and conclusions, the au-

thenticity of which are in question. Appellant vigorously

objects to the ‘‘ History of Constitutional Reform in Penn- |

sylvania’’ as simply not relevant to any Federal issue and

largely inaccurate. The need for constitytional revision is

not questioned by appellant. He simply believes wy ied

aE a PS i]

OTN RI al ge “pte

‘ " ears

Pt Po rem yer —

7m we mer tee ne .

. oe 7 Appellant’s Reply

- millions of Pennsylvanians that they were entitled to re-

vision without retardation. Appellant and those interested

in this case belong to no group of special Interests and are

unaffected by this litigation in any way other than as every

_ other person in this Commonwealth. They strongly except

~ to any inference to the contrary.

- To be convinced of the need for deliberation and debate

by an informed electorate one need only read the Bar_Asso-

ciation’s Brief p. 7 for the litany of political and gocial

pressures brought to bear on the public during the cighteen

frantic days. between publication and vote.

Appellants and amicus have made the emotional appeal

that much has been spent in effort and money ‘to implement

the new judiciary article. This may be true. But, it isa |

matter of no import when the loss is weighed against the

value of the basic rights upon which this case pivots.» By

way of answer, we need only look at the segregation decis-

ions of This Court. .When theequal but separate facilities

doctrine was declared unconstitutional; the economic loss ~

to the South was enormous and regrettable but manifestly”

necessary. Certainly it could not be suggested that loss

of money and inconvenience warranted the perpetuation of

injustice. |

. wae . ;

B. All Federal Issues: Were Before the Court Below.

As a hallmark of these inaccuracies, the Pennsylvania

Bar Association categorically claims that ‘‘[t]he complaint

itself made not a single reference to the Constitution of the

United States or any questions arising thereunder ””: and

*Tojnee again, there was not a single reference in the

Amended Complaint to the Constitution of the United

States or any questions arising thereunder.’’ Brief Amicus

Curiae pp. 9,10. This is just not so. Had Bar Association

counsel read the complaint, they would have discovered, as

———

»

Appetent’s Reply . 8s

‘did the Attorney General of Peunsylv ania, that paragraph

9 of Appellant’s Amended Complaint alleges:

‘‘Plaintiffs are informed; believe, and therefore

aver that Proposal No. 7, appearing as Ballot Question

V, proposing an.amendment to Article V of the Con-

‘stitution is contrary to and violative of the constitu- .

tional guarantees of the separation and balance of legis- —

lative and judicial power beyond the scope of the con-

vehtion’s powers by effectively eliminating from the

court of the Commonwealth all constitutional power.’’ |

ba lial ll atte

“Appellees and a choose to ignore Briefs of coun-

sel and the opinions below where it is evident that allissues |

in the jurisdictional statement were: before the Pennsyl- — a

vania Courts.’ They ignore also that ‘‘[t]here can be no

question as to the proper presentation of a federal claim

when the highest staté court passes on it.’ Ralery v. State —

of Ohio, 360 U. S. 423, 436, 79 S. Ct. 1257, 1265.

C. Ex Officio Delegates.

# Appellee and amicus misconstrue appellant’s argu-

ment on the invasion into the convention by the .thirteen

non-elected delegates. They argue that since the conven- j

= * Without detailing all such references in the Court below, the

following amply satisfy this inquiry:

a. Ex-officio delegates violative of equal protection—Majority

Opinion, Bell, C. J. (Jurisdictional Statement pp. 12a-l4a)

and Dissent “ Cohen, J. (Jurisdictional Statement pp. 23a-

27a)

b. Due Resnin~tiehe of Interested Person in Pennsylvania Su-

preme Court, attached hereto at pp. la-6a.

c. Judicial v. Legislative Supremacy—appellants complaint and

amended complaint ibid.

2. See also Douglas v. State of Alabama, 380 U. $s. 423, 85 S.

i” aa and Manhattan Life Ins. Co. of New York v. Cohen, 234

_U. S. 123, 4 S. Ct. 874.

. ‘

POO OL I OL POEL IT LH bi td den cs

4. , ‘A ppellant’s Reply

tion only ‘‘pr oposes”’, the people ‘non. this satisfies

the equal protection requirements. This reasoning ignores

_ the basic concept of equal protection. The wrong protected

against is the “election’’ of disproportioned representa-.

tives. It is beyond argument that if a legislature gllowed |

thirteen non-elected persons to participate as its leaders:

and organizers in its deliberations with full power to debate -

and vote, nothing could vitiate this misconduct. The viola-

tion is in the lack of ‘equal representation . . . for equal

numbers of people. . .”? Wesberry v. tankers, 376 U.S.

1, 14 (1964).* No igerdestain or subsequent conduct can

validate what had to be void at the outset.

- Act No. 2 was the product of the Pennsylvania legisla--

ture and it became the mid- wife i in delivering this. Conven-

tion to the people. The legislature, not the convention,

provided for the ‘‘13 ex officio delegates’’ and it is the . .

constitutionality of Act No. 2 that is here in issue—not

the debates in convention. |

CAT delegates to this convention, except the ex officios,

were elected at the general election in November, 1967 by

the people of the Commonwealth and constituted.an elected

body sanctioned by the Commonwealth supposedly to speak

on behalf of the people, in precisely the same way as the’

legislature. The_convention performed exactly what the

lnetelature could do, and did many times.in the past,—sub-

mit constitutional amendments to the people. The appellee

sees a distinction without a difference. ;

_ Justice Cohen perceived this and noted in 1 his dissent-.

ing Opinion:

‘‘Hven if we ignore appellant’s contention that

Act No. 2 of the 1967 Session did not properly follow

3. Also, “Kirkpatrick v. Preisler, Henkel v. Prisler,’394 U. S.

526, 89'S. Ct. 1225, and Wells v. Rockefeller, 394 U. S. 542, 89 S. Ct.

1234. a el

Appellant’s Reply - 7 ee 5)

Article 18 of the 1874 Constitution, we must, .never-

theless,, determine whether a proper body for revision

of the existing lawful frame of government was con-

stituted by Act No. 2. I am constrained to hold that

because section 2 of the Act provides for 13 ex officio

ae in addition to 150 elected delegates, that the

ex oficio members so dilute the elected body established

for revision of the frame of government that it is not

_ representative of the whole people and hence, unlawful

and void. (Footnotes omitted.)

‘‘The essence of a constitutional convention is- -

} + only maintained if it represents,the people. - It is a

substitute for the gathering of the entire populace.

The presence of: ex officio delegates exercising the full

powers of elected delegates is foreign to the concept

of a convention as a gathering of the people. Thus,

there was no convention and nothing which ‘flowed

from.it is valid even if the product of the convention ©

. is subsequently approved by the ‘majority of the’ vo-

ters.’’? (Supplemental Statement pp. 24a; 25a.)

Not only were these non-elected delegates permitted to

debate and vote but by authority of Act No. 2 they con- —

stituted a Preparatory Committee with subpoena power to

conduct ‘‘. . . broad studies, inquiries, surveys or analyses

[they] may deem relevant.. . .’’*. These stalwarts of

the legislature were therefore not only-delegates without

a mandate but the clicue which determined the subject

matter and procedure for the convention. ;

As was further observed by. Justice Cohen:

”

“T recognize that the leadership of ‘the General .

- Assembly that approved the Act held within their

4.. For text, see Jurisdictional Statement p. 25a, footnote 2.

”

2

Appellant’s lad

political power the‘ yes’ or ‘no’'on whether a constitn-

tional convention should be called. But those in favor

of a convention should not have surrendered the very

essence of government in order to have the General

Assembly pass the call. The cost was too high. It.

permitted the leadership of the General Assembly to

become part of the convention without exposing them--

selves to the will of the people, and to influence, if

' not control, the convention’s deliberations. (Footnote

omitted.) JI see a dangerous threat to government as_

we know it by acquiescing in this unprecedented usur-

pation. (Footnote omitted.) ~

“T cannot accept the contention that all prior im-

proprieties and illegalities are rectified by the ratifying

vote of the electorate. (Footnote omitted.) Proce-

dures «in government instituted -for the protection of

‘the mass of people are designated to protect them

from the rule of the majority. Our concepts of democ-

racy and minority rights have far transcended the

philosophy that ‘might makes right.’ ’’ (J urfsdictional

Statement, pp. 25a to: 27a), |

D. Judicial v. Legislative Supremacy.

Again the Amicus brief incorrectly concluded that

‘¢{njJowhere in the proceedings in the state courts did ap-

pellant ever contend that the asserted shift of power from

the judiciary to the legislature-raised a federal question”’

and ‘‘[t]he argument having not been made by the Appel-

lant in the Pennsylvania courts and having not been ac-

tually: decided by. the Supreme Court of Pennsylvania, it

cannot be entertained here.’’ Brief Amicus Curiae, p. 15.

The complete answer to tliese baseless assertions is para-

' graph 9 of Appellant’s Complaint; Appellant’s brief in the

Appellant’s Reply = —s—«<ST

Supreme Court: of Pennsylvania, p. 20 entitled “The Con-

_ vention Acted Unconstitutionally | by Usurping a Power

Without the Limitations Placed/gpon it by the Enabling

Act and, Further, by the a ia of Power Given to

the Judiciary in Violation of the Separation of Power

Doctrine thus creating a Suzcrainty of the Legislature over |

- the Judiciary”; Appellant’s Brief, p. 84, et seq. and the

opinion of Chief Justice Bell, which states that ‘‘[a]ppel-

lants vigorously urge this Court to declare the new Judici-

ary Article of the Pennsylvania Constitution null and

void:on the ground‘that it violates the traditional and fun- |

damental concepts inherent in the separation of jurisdic-

tion and powers among the three branches of our Republi- |

can Form of Government (Art. IV, See: 4, of the Constitu-

tion of the United States).’’ (Jurisdictional Statement,

p. 14a). - It was in light of this ‘‘vigorous’’ urging by Ap-_

~-pellant that the Supreme Court of Pennsylvania went on

to“. . . discuss specifically the provisions of the new

Judiciary Article which are alleged to violate, obliterate

and destroy the jurisdiction and the powers . . .’’, of

the judiciary in Pennsylvania. (Jurisdictional Statement,

p. 15a). | j

On the substantive issue appellees and amicus con-

tinue to-misconstrue appellant’s position. They talk. of

‘‘Supreme Judicial Power’’ and all its trappings as being

_the complete answer. But nowhere in the arguments or

analyses, including the opinions of the Supreme Court of

Pennsylvania, has anyone answered the question. posed by

Section 10(c) of the amendments, which prohibits the -

Supreme Court.of Pennsylvania from ‘‘. . . affect[ing]

the right of the General Assembly to determine the juris-

diction of any court or justice of the peace . . .’’ (Juris-

dictional Statement, p. 10). |

8 ; - Appellant’s Reply

‘Simply stated, these nineteen words create for the first

time in American Jurisprudence an absolute control by the

_ legislature over the judiciary. Othey constitutions provide

that the jurisdiction of. Supreme Courts can be ‘“provided

by law’’. There is nothing exciting in this phrase. Should ~

a legislature enact a statute detailing jurisdiction of a

Supreme Court which offends either the state pr-federal

constitutions, the court could simply rule it unconstitutional

and void. There is a notable difference between the juris-

~ diction, that is ‘‘provided by-law’? and Section 10(¢) which

prohibits’ the Supreme Court ‘of Pennsylvania from

‘‘affect[ing] the right of the General Assembly -to deter-

mine the jurisdiction of any court . . .’? This clearly-pre-

' vents the Supreme Court.of Pennsylvania from reviewing

any legislation ‘‘determining the jurisdiction of any court”?

(Emphasis ours). Consequently, the Pennsylvania legis-

lature has the absolute, final and uncontestable right to

decree by statute the jurisdiction of the Supreme’ Court of

Pennsylvania and this statute cannot be reviewed by the

: Courts of Pennsylvania. This utterly ‘destroys the

‘‘power’’ of the Supreme Court.of Pennsylvania and the

Republican Form. of Government with its recognized sepa-

ration of power.

By comparison, the broad vision of liberty and inde-

‘dependence of the judiciary is most simply stated in the .

United States Constitution, granting ‘‘power’’ to the United

States Supreme Court. (Article ITI, ¢ 2.) ie

‘‘The Judicial Power shall ‘extend. to all cases in

law and Equity, arising under this Constitution, the

Laws of the United States and Treaties made or which

shall be made, under their authority . on

Chief Justice Marshall described ‘the meaning of

' Article III, Section 2, when he announced in Marbury v

Madison, 1 Cranch 137, 2 L. Kd. 60 epi

Appellant 's Reply eager |

“‘Tf it had been intended to leave it in the discre- |

tion of the legislature to apportion the judicial power

between the supreme and inferior courts. according to

the will of that body, it would certainly have been use-_

less to have proceeded further than to have defined the

judicial power, and the tribunal in: which it should be

vested. The subsequent part of the ‘section is mere

surplusage, is entirely without meaning, if such is to -be ~~

the :construction. If Congress remains at liberty to

give. this court appellate jurisdiction, where the éon-

stitution has declared their jurisdiction to be original; —

_ and original jurisdiction where the constitution has

’ declared it shall be appellate ; the distribution ‘of juris-

diction, made in the constitution, is power without ‘sub-

stance. = e . SS

‘By definition, judicial power alone encompasses all |

' power necessary to éstablish’ control over the orderly. con- \ F

\ duct.of judicial inquiry. McDonald v. Pless, 238 U.S. 264,

265, 266 (1915) ; Michaelson v. U~.S., 266 U.S. 42, 65 (1924). “i E

. ‘ Power without jurisdiction is legal castration—power and.

_, Jurisdiction are inexorably intertwined, infused and in-

grafted with one another and indispensably synonymous.

Does‘ it not become most clear then: no jurisdiction—no

power. : | ‘

Under these so-called proposals, no guarantee i is spelled

out; and, absent such direction there are no guarantees:

- Political discretion is a poor and meaningless substitute

to accept in exchange for what has been taken from the .

people.

, As this Court noted in U. S. v. Hudson & Goodwin, 7

Cranch 32, 33, 3 L. Ed. 259 (1812): Wai

“If all the courts which the United States may, *

under their general powers, constitute, only one, the

~

10 an Appellant’s Reply —

=

Supreme Cou vi possesses jurisdiction derived imme-\. . ~

Constitution, and which the legislative _

» diately from.t

| ‘ power cannot deprive it.’’ .

_ The late Justice Musmanno of the Pennsylvania Su-

preme Court i in his dissenting opinion age. faced this

issue : |

“Tt will re noted by the italicized words [See.

10(c)]. that the Supreme Court becomes the servant of

the Legislature. We have supreme power but it is the

_ Legislature which determines jurisdiction. Why, juris-

diction is the very essence of judicial power! Take

‘ away -jurisdiction and the courthouse becomes brick,

- mortar and form.

‘*Here again we -have the limiting words unless

‘otherwise provided by law,’ that-is, unless the Legis-

lature determines to limit: our jurisdiction. ~If the

Legislature may limit. our jurisdiction it may control

the functions of the Supreme Court. I must repeat my

amazement that the majority of this Court can take so

lightly such a hazard to the independent’ functioning

of the highest Court i in the Commonwealth: »» (Juris- ,

dictipnal Statement, PP. 37a-38a).

There can be no axguenent under the language of the

Judicial Article but that there is no guarantee to the citi-

zens of the Commonwealth of Pennsylvania that there will

- be in extstencé any court in the Commonwealth with any

a jurisdiction. With specific reference to what should be the -

inviolate right of a citizen to a writ of habeas corpus; we see .

that by virtue of the language of the Judicial Article, there

‘ is no court anywhere in the Commonwealth that can be said

ARE me

‘pin at

Appellant’s Reply |

to provide a guarantee that it will be in existence with any .

jurisdiction to entertain a petition for a writ. of habeas

corpus. This is.a fatal defect in the Judiciary Article.

‘This defect affects other freedoms as well. For in-

stance, if there is no court guaranteed to enforce the right,

then there can\be no effective guarantee of ‘‘freedom of

- speech or of the press,’ or any other freedom now guaran-.

teed to the people.

The J udiciary Article has completely subordinated the

judicial branch of government to the legislature. In effect,

it eliminates the judicial branch of government as a sep-

arate and independent branch of government. . If the legis-

lature has the sole determination of what jurisdiction all

the courts of Pennsylvania have, then the judicial branch

of government in effect becomes subservient-to the legis- °

lature and becomes nothing more than:a branch of the legis-

lature. There remains in Pennsylvania only two independ-

_ ent-and separate. branches of government, i.e., the executive

and legislative branches. :

- An independent judiciary is absolutely essential to

our basic system of government. Its origin is in the Magna |

Carta and has enjoyed constitutional protection throughout

our history.

E. Abrogation of Pennsylvania Constitutional Protections.

For a thorough understanding of.the full significance

of Section 10(e) it must be played against a background

which recognizes that Act No. 2 authorized only a limited

- constitutional convention and the warrant from the people

was severely restricted to “fj udicial Administration, Or-

ganization, Selection and Tenure’’ and nothing more.

Any” interpretations of the words, ‘‘Administration’’

and “Organization’’, as used in Act No. 2,.‘‘. . ..shall be

en according to rules of grammar and according to

y :

12 “~ Appellant’s Reply

their common aNd approved usage’. 46 P. S. 533.5" If in

fact an elector were so enterprising as to research the defi- -

nitions of these terms in generally accepted dictionaries, he .

would have found that ‘‘administration’’ means the execu-

tion of public affairs as distinguished from policy making ;

- performance of executive duties, the executiye functions of

government, both general and-local, which are neither legis-

lative nor judicial. ‘‘Organization’’ refers to the adminis-

trative and functional structure, the’ administrative per-

sonnel or apparatus of a-business, Webster’s Seventh New

Collegiate Dictionary, G. & C. Merriam Co., p. 12,594 (1965),

American College Dictionar yk Random House, The., p. 16, 804

(1966).° 3 oe

What elector voting to authorize proposals restricted

by ‘‘Administration’’, ‘‘Organizations’’, ‘‘Selectiofi and

Tenure’’ could possibly imagine that his constitutional

guarantee of tripartite government was on the way out?

Indeed, why did the warrant for the Judiciary Article refer

to the four limited areas for consideration if it intended

that jurisdiction of the judiciary was to be in any way

affected? The only matters in Article V of the prior Con-

stitution, which were not covered by the four specified sub- .

jects, concerned jurisdiction and jury trial. Indeed, unless |

the electorate was specifically intended to except jurisdic- |

tion and jury trial from the consideration of the conven-

"5. See also—Commonwealth v. McHugh, 406 Pa. 566 (1962) ;

Harris-Walsh, Inc. v. Boroiigh of Dickson City, 420 Pa. 258 (1966).

6: See Black Law Dictionary, West Publishing Co.-p. 65 (1951).

The term “Administration” has been defined.as the managing or,con-

duct of an office or employment; the performance of the executive

duties of an institution, business or the like. Webb v. Frohmiller, 52

Ariz. 128, 79 P. 2d 510. “Organize” hasbeen defined (Black Law

Dictionary, supra, p. 1251) “to establish or furnish with organs; to

systeniatize ; to put into working order; to arrange in order for the

normal exercise of its appropriate functions.” Ci ity of Beaumont

Independent School District, 164. S. W. 2d 253, 256.

. _ Appellant's Reply | . - -13

tion, they wquld simply have been asked to give unlimited

authority to consider Article V. This was not done.

‘The leger demain of language which confronted the

electors who voted on Act No. 2 consisted of the following,

entitled ‘ Juprcrary—Ballot Question V’’:

“Shall Proposal 7 an the Jubiciary, adopted . by the

- Constitutional Convention, establishing a unified judi- .

_ cial system, providing directly: or through ‘Supreme

e Court rules,. for the qualifications, selection, tenure,

removal, discipline and retirement of, and prohibiting

certain activities by justices, judges, and justices of the

peace, and related matters, be ngquorest™".

This i innocuous wording revealed no clue that the j juris-

‘diction of the cots! was at’ stake, that the. independence

of the ju judiciary was to be compromised, that the separation

of power would be ended. Nowhere in the ballot question

were ue key: words, ‘‘jurisdiction,’’ ‘‘independent judi-

ciary,’’ or ‘separ ation pf powers,’’ to be found. Delib-

er deception was petrated on the citizens. This

‘epresents a violation of due process under. the federal

‘ constitution.

CONCLUSION.

It was the‘deliberate purpose of the Sealers of the’

- American system to separate the powers of goyernment -

and, so far as possible, to divide authority. This view of

division and ‘lintitation in public power was clearly ex-

pres gpd by Jefferson: _

“All the powers of government—legislative, execu-

tive and judiciary—result i in the legislative body. The

’ concentrating these in the same hands is precisely the

definition of despotic government. It will be no al-

— Jeviation that: these powers will be exercised by a

" er ae bes

.

14

* being effectually checked and restrained by the others.

Appellant’s Reply

plurality of hands,:and not by a single one. One hun-

dred and seventy-three despots would surely be as

oppressive as one. Let those who doubt it turn their

eyes .on the republic of Venice. As little will it avail

*. us that they. are chosen. by ourselves. An ‘elective

despotism was not the government we fought for, but

one which should not gnly be founded on free principles,

but in which the powers of gov ernment be so divided

and balanced among several bodies of magistracy, as _

that no one guld transcend their legal limits, without

7

The tactic of non-representative constitutional conven-

tions organized and conducted at the will of fhe legislators.

with the support of restless majorities, is an enormous

threat to individual freedom at the federal as w ell as the

state level. It must now be put to an end.

It is respectfully requested that this Court return the

people of Pennsylvania to equal status and forever declare

these tactics of expediency anathema.

<

°

Respectfully submitted,

James HK. BeEas.ey, be

Attorney for Appellant. .

7. Works, 3:223.

Q

EXCERPT FROM BRIEF OF INTERESTED PERSON

IN PENNSYLVANIA SUPREME COURT.

HI.

The Referendum on the Convention’s Proposals Was Void

Because It Was Not Authorized by a Valid Statute and

Was Held in Disregard of the Mandates of the Con-

stitution. It Was Also Void Because.Inadequate Notice

of the Precise Content of the Proposals Denied the

People Due Process of Law.

Obviously, the ‘‘consent of the governed’’ cannot be

lawfully or validly obtained if it is sought in a manner

which violates either the State or Federal Constitution.

The only foundation for the referendum at the 1968

Primary is Act No. 2. But the foundation crumbles, and

. with ut the referendum, because the Act.is plainly contrary

to the Constitution.

The Legislature, by Act No. 2, directed only one pub-

lication of pe proposals during the first week in April,

1968, and further directed that the. proposals be submitted

to the’ electorate in.the third week thereafter. But the

Constitution,_ag interpreted by this Court in Com. ex rel.

Attorney General v.. Beamish, 309 Pa. 510, mandates re-

peated publication, once a month fer three months before

the election is held. The conflict between the Act and the

Constitution is clear and irreconcilable.

As was said in this Court in Com. ex rel. Smillie v.

McElwee, 327 Pa. 148, 160:

‘Whenever any act conflicts with any section of

the fundamental law, it is entitled to no further con-

sideration, for whenever the will of the legislature as

Ris

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declared in a statute is opposed to the will of the people

as declared in the Constitution, the former must yield

and the latter prevail.’”? (Emphasis is by the Court)

, The Constitution was completely disr sanoied i the

Legislature. Therefore, the referendum,.at the 1968 Pri- |

mary was held without any valid statutory or constitutional

authority, and the vote at the referendum should be de-

clared to be a constitutional nullity.

Furthermore, the failure to give the electorate adequate

notice of the actual contents of the proposals and adequate

time to study them before casting their votes denied Due

Process of Law to all of the people. In ordingry litigation,

whether it be civil or criminal, Due Process of Law requires

that a party be given full and specific notice of what he is

called upon to meet, and adequate time to prepare to meet ©

the issues. Are the people to be denied that same right, -

, when asked to approve drastic changes in their funda-

mental law? What could affect the liberties and property

of the people more directly? :

ears The fact of the matter is, that the people were given

no adequate knowledge of the matters they were voting

upon. The vacant involved numerous complex and

radical: changes in legislative apportionment, debt limits,

taxation, powers of local government, judiciary, ete. The

full text of the proposals embraced tens of thousands of

words. It was published only once and then, in most news-

papers, in type so fine as-to be almost impossible to read,

even by a person blessed with the best of eyesight. When

the voters went to the polls, only 18 days | later, all that they

had before them were five brief Ballot Questions, eryptic,

laconic and affording little or no information of the true

content of the proposals. The people were asked to vote

blindly and to accept five ‘‘package deals’’ on blind faith,

without any opportunity to separate the good from the bad.

3a, na

)

To ik the matter Sais: the Tope were asked ‘to buy

a pig in a poke.’’ A referendum conducted in such fashion

carinot possibly be reconciled with Due Process of Law.

Furthermore, the Ballot Questions plainly violated that

portion of Article XI, Section 1, of the Pennsylvania Con-

stitution which provides that:

‘‘When two or more amendments shall be. sub-

~ mitted they shall be voted upon separately.”’ :

This language is clearly mandatory. It was not within

the competence of the Legislature to direct or authorize the

lumping of two or more amendments in_a single Ballot

Question. Yet, the Legislature, by Section 9(a) of the Act

- of 1967, No. 2, purported to authorize the .Convention to

- frame one Ballot Question for each Article, regardless of

the number and nature of. the amendments contained in

the Article. . :

- Ballot Question No. 5, on the Judiciary, for example,

flagrantly violated the above quoted constitutional provi-

sion. Ballot Question No. 5 showed upon its face that it

was submitting no less than NINE separate cabeporses of

amendments:

1. Unified Judicial System;

2. Qualifications ‘of Judges and Justices of the Peace ;

3. Selections of Judges and Justices of the Peace;

4. Tenure of Judges and Justices of the Peace;

Removal of Judges afid Justices. of the Peace ;

Discipline of Judges and Justices of the Peace;

-

Retirement of Judges and Justices of the Peace :

a lo a) ace al RIENCE PEAT RT CRE aR,

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8. Prohibited Activities of Judges and Justices of the

Peace ;

9. ‘Related Matters’’ (not specified).

Furthermore, the Ballot Question did not give the

voters even a hint that the Proposal would infringe on the

jurisdiction of the Supreme Court; that it would change the

jurisdiction of the Courts of Common Pleas; that it would

abolish certain existing courts; or that tt. would set up a

new state-wide Commonwealth Court.

é.

No single one of the categories of amendments con-

tained in the proposed Judiciary Article had any necessary

relation to or dependence upon any other category. For

example, a change in the organization or jurisdiction of the

Courts is a matter entirely separate from the manner of

selecting judges or the manner of removing, retiring or

disciplining them. If a’ voter actually knew what he was

voting upon, he might well have approved some of the

changes made by the proposed Judiciary Article but be .

completely opposed to others. Yet, he was given no choice.

He has to take ‘‘all or nothing,’’ without any adequate in-

formation as to what he was voting upon. It is precisely

this type of ‘‘package deal’’ which Article XI, Section 1,

of the Pennsylvania Constitution forbids.

The questions raised by this appeal are still justiciable.

The basic issue is whether the purported consent of the

electorate was validly obtained. In Armstrong v. King, 281

Pa. 207, 217, your Honorable Court recognized that such

an issue will survive the renee

‘*(if) the alleged defects are so serious as to lead

to a belief that the people were not properly advised

-* * * or at the polls a fair vote was not obtained.”’

5a

Furthermore, the case involves Federal issues arising

under the Due Process Clause and Equal Protection Clause

of the 14th Amendment to the U. 8. Constitution. - No judge--

made rule of ““justiciability’’ by a State Court can prevent a

determination of the questions whether the make-up ofthe

Convention and the manner of submitting its proposals

violated the Federal Constitution. This necessarily follows

by reason of the Supremacy Clause of Article VI of van

U. S. Constitution.

* As stated in Lucas v. Colorado General Assembly, 377° a

U. S. 713, 12 L: ed. 2d 632: ae

_ _ ‘TA eitizen’s ition. rights can hardly be

infringed simply because a majority of the people

choose that it be.’’

The appellants’ challenge to the propriety of the pro-

cedure was made before the election was held. The people

should not be denied their constitutional. rights to be fully

advised of the true nature and content of proposed consti-

tutional changes merely because the court below errone-

ously refused to grant a preliminary injunction, or because

this Court postponed review until after-the election was

over. Indeed, the Order of this. Court, of April 18, 1968,

ew immediate review, was expressly stated to be

‘without prejudice.’’ The constitutional rights of the

people can still be vindicated by this Court. Your Honor- .

able Court has not hesitated to set aside a referendum

where there was a material departure from the require-

ments of a valid statute: Kittaning Country Club’s Liquor

License Case, 330 Pa. 311, 318. Y-ou should not hesitate to

set aside a referendum held in flagrant violation of the Con-

stitution, and also-in violation,of the basic right of the peo-

ple to Due Provess of Law. Justice to the people and re-

gard for their constitutional rights demands no less.

LO

POEM LN TOP SAT

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- CONCLUSION.

.

For the foregoing reasons Your Honorable Court is re- -

“quested: > et |

_—-—~(1) To declare the provisions of the Act of March 15,

1967, No. 2, relating to the time and period of publication

and the time for conducting a referendum’ on the -conven-

tion’s proposals to be unconstitutional and void; and

(2) To declare the referendum held at the 1968 Pri-

- mary to be in violation of the Constitution, void and of.

no effect. —

Respectfully submitted,

W. J. Krencewicz, o

Attorney for Interested Person

Under Rule 65.

4,