Sprague v. Cortés

• Decision Date: 09 December 2016
• Docket Number: 1:16–CV–02169
• Citation: 223 F.Supp.3d 248
• Parties: Richard A. SPRAGUE, et al., Plaintiffs, v. Pedro A. CORTES, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

223 F.Supp.3d 248

Richard A. SPRAGUE, et al., Plaintiffs,

v.Pedro A. CORTES, Defendant.

1:16–CV–02169

United States District Court, M.D. Pennsylvania.

Signed December 9, 2016

Jordann R. Conaboy, Brooke S. Cohen, William H. Trask, Richard A. Sprague, Sprague and Sprague, Philadelphia, PA, for Plaintiffs.

Richard A. Sprague, Philadelphia, PA, pro se.

Linda Cadden Barrett, Sean Martin Concannon, Timothy E. Gates, Office of General Counsel, Department of State, Harrisburg, PA, for Defendant.

MEMORANDUM OPINION

Robert D. Mariani, United States District Court Judge

I. INTRODUCTION AND PROCEDURAL HISTORY

Presently before the Court is a Motion to Dismiss (Doc. 19) filed by Defendant Pedro A. Cortés, Secretary of the Commonwealth of Pennsylvania. The Motion to Dismiss seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or in the alternative, dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or Rule 12(b)(7) for failure to name indispensable parties. (Doc. 20, at 3).

On October 27, 2016, Plaintiffs Richard Sprague, Hon. Ronald Castille, and Hon. Stephen Zappala, Sr. filed a complaint in the above-captioned matter naming as Defendant Pedro Cortés, the Secretary of the Commonwealth of Pennsylvania. (Doc. 1). Plaintiffs subsequently filed an Amended Complaint (Doc. 9) and Second Amended Complaint (Doc. 17) which, added as an exhibit the Affidavit of Berwood A. Yost and modified a corresponding paragraph in the complaint (Doc. 9), added Hillel S. Levinson and the Hon. John W. Herron as Plaintiffs, and included an allegation that the Court also has jurisdiction pursuant to 28 U.S.C. § 1343 (Doc. 17). The Second Amended Complaint requests Declaratory Judgment and Injunctive Relief pursuant to 42 U.S.C. § 1983 (Counts I, II) and Declaratory and Injunctive Relief pursuant to Pennsylvania Law (Count III).

Defendant moved to dismiss the Second Amended Complaint on November 10, 2016, (Doc. 19), to which Plaintiffs filed a brief in opposition (Doc. 31), Defendant filed a reply brief (Doc. 32), and Plaintiffs led a sur-reply brief (Doc. 37). Jeffrey A. Manning, Donna J. McDaniel, Michael J. Delia Vecchia, David R. Cashman, John P. Garhart and John M. Cascio filed an amicus curiae brief in support of Defendant's Motion to Dismiss. (Doc. 25).¹

The issues have been fully briefed and Defendant's Motion is ripe for disposition. For the reasons set forth below, the Court will grant Defendant Cortés Motion to Dismiss.

II. FACTUAL ALLEGATIONS

Plaintiffs' Second Amended Complaint alleges the following facts² :

Plaintiffs in this action are Richard A. Sprague, a member of the Pennsylvania Bar, the Honorable Ronald D. Castille and Honorable Stephen Zappala, Sr., both former Chief Justices of the Pennsylvania Supreme Court, the Honorable John W. Herron, a current senior judge of the Pennsylvania Court of Common Pleas, Philadelphia County, and Hillel S. Levinson, an inactive member of the Pennsylvania Bar. Each Plaintiff is a resident and citizen of the Commonwealth of Pennsylvania, a registered voter, a taxpayer of the Commonwealth of Pennsylvania, and is eligible and intended to vote in the November 2016 general election in the Commonwealth of Pennsylvania. (Doc. 17, ¶¶ 1–5).

Defendant Pedro A. Cortés, Esq. is the Secretary of the Commonwealth of Pennsylvania.

In that capacity, Defendant is responsible for determining and publishing the language that appears on statewide ballots concerning any proposed amendment to the Pennsylvania Constitution, including the proposed constitutional amendment at issue in the present action. (Id. at ¶ 6).

Currently, the operative Pennsylvania Constitution is the fifth Constitution that has governed the Commonwealth since the United States declared its independence in 1776. (Id. at ¶ 9). Following a Constitutional Convention held in 1967 and 1968, Pennsylvania voters adopted the presently-controlling Pennsylvania Constitution, which revised the judiciary article of the previous Constitution and set a mandatory retirement age for justices of the Pennsylvania Supreme Court, lower court judges, and magisterial district judges. (Id. at ¶ 11).

Article V, Section 16(b) of the original 1968 Pennsylvania Constitution required all judicial officers of the Commonwealth to retire immediately upon attaining the age of 70. (Id. at ¶ 12). In 2001, primary ballots across the Commonwealth of Pennsylvania contained the following question asking Pennsylvania voters if they wished to amend Article V, Section 16(b) of the original 1968 Pennsylvania Constitution: "Shall the Constitution of Pennsylvania be amended to provide that justices of the Supreme Court, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years, rather than on the day they attain the age of 70?" (Doc. 17, ¶ 13). Over 67% of the voters who answered this ballot question voted "yes." As a result, Article V, Section 16(b) of the Pennsylvania Constitution was amended to require that the Commonwealth's judicial officers must retire on the last day of the calendar year in which they reach the age of 70. (Id. at ¶ 14).

Following the 2001 amendment to Article V, Section 16(b), various members of the legislature introduced several unsuccessful bills proposing to amend the Pennsylvania Constitution to either raise the mandatory judicial retirement age beyond 70 or to abolish the constitutional requirement that the Commonwealth's judicial officers retire upon reaching a certain age. (Id. at ¶ 15).

In 2013, several groups of Pennsylvania jurists "sought to renew the attack on Article V, Section 16(b) via multiple legal actions commenced in both federal and state courts." (Id. at ¶ 16) (quoting Driscoll v. Corbett , 620 Pa. 494, 69 A.3d 197, 200 (2013) ). The Pennsylvania Supreme Court joined the federal courts in rejecting these legal challenges, noting that the only way to increase or eliminate Pennsylvania's constitutionally-mandated judicial retirement age "is to pursue further amendment to the Pennsylvania Constitution." (Doc. 17, ¶ 17) (quoting Driscoll , 69 A.3d at 215 ).

After the Pennsylvania Supreme Court confirmed the legality of Article V, Section 16(b)'s requirement, the State House of Representatives considered a resolution proposing to present the state electorate with a ballot question regarding whether the constitutionally-mandated judicial retirement age should be raised from 70 to 75. (Doc. 17, ¶ 18).

Pursuant to Article XI, Section 1 of the Pennsylvania Constitution, in order for a resolution to result in a Constitutional amendment, it must be approved by a majority vote of both houses of the Pennsylvania General Assembly in two consecutive sessions, as well as "submitted to the qualified electors of the State" and "approved by a majority of those voting thereon." (Id. at ¶ 19).

The first affirmative vote by the Pennsylvania General Assembly came on October 22, 2013, when the General Assembly passed H.B. 79, a joint resolution proposing to amend Article V, Section 16(b) to require that the Commonwealth's jurists retire on the last day of the year in which they attain 75, rather than 70. (Id. at 20). Following the affirmative vote, the Secretary of the Commonwealth published notice of the proposed amendment through advertisements in newspapers throughout the Commonwealth. (Id. at ¶ 21).

During the next legislative session, on November 16, 2015, the General Assembly passed H.B. 90, a joint resolution identical to the preceding session's H.B. 79. (Doc. 17, ¶ 22). Consistent with the requirements of the Election Code, 25 P.S. § 2621(c), H.B. 90 also directed the Secretary of the Commonwealth to develop a ballot question concerning the Pennsylvania General Assembly's proposal to amend Article V, Section 16(b) and to submit that ballot question "to the qualified electors of this Commonwealth at the first primary, general or municipal election ... which occurs at least three months after the proposed constitutional amendment is passed by the General Assembly." (Id. at ¶ 23).

As required by Article XI, Section 1 of the Pennsylvania Constitution and H.B. 90, the Secretary of the Commonwealth published notice of the proposed amendment in newspapers across the commonwealth along with a "plain English" statement prepared by the Attorney General explaining "the purpose, limitations and effects of the ballot question on the people of the Commonwealth." (Id. at ¶ 24) (citing 25 Pa.C.S. § 2621.1). The Secretary's public notice explained that Pennsylvania voters would be asked to approve or deny the proposed amendment to Article V, Section 16(b) of the Pennsylvania Constitution by answering "yes" or "no" to the following ballot question developed by the Secretary:

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?

(Doc. 17, ¶ 25).

Thereafter, Pennsylvania election officials created ballots for the April 26, 2016 primary election containing the above-quoted question regarding the proposed amendment to the Pennsylvania Constitution. (Id. at ¶ 26).

The Secretary developed the language of this April 2016 primary election ballot question in accordance with Section 201 of the Pennsylvania Election Code, 25 P.S. § 2621(c), which vests the Secretary of the Commonwealth with authority over "the form and wording of constitutional amendments or other questions to be submitted to the State at large." (Id. at ¶ 27). Consistent with the Pennsylvania Election Code's delegation of authority over ballot questions to the Secretary of the Commonwealth, neither H.B. 79 nor H.B. 90 suggested or set forth language...