Citizens Committee to Recall Rizzo v. Board of Elections of City and County of Philadelphia

• Decision Date: 19 November 1976
• Docket Number: Philadelphia,in No. 89.
• Citation: 470 Pa. 1,367 A.2d 232
• Parties: CITIZENS COMMITTEE TO RECALL RIZZO, by Shelly D. Yanoff, Trustee ad Litem, et al. v. The BOARD OF ELECTIONS OF the CITY AND COUNTY OF PHILADELPHIA et al., Appellants in No. 90. Appeal of the Hon. Frank L. RIZZO, Mayor of the City of
• Court: Pennsylvania Supreme Court

367 A.2d 232

470 Pa. 1

CITIZENS COMMITTEE TO RECALL RIZZO, by Shelly D. Yanoff,Trustee ad Litem, et al. v. The BOARD OF ELECTIONS OF the CITY AND COUNTY OF

PHILADELPHIA et al., Appellants in No. 90. Appeal of the Hon. Frank L. RIZZO, Mayor of the City of

Philadelphia, in No. 89.

Supreme Court of Pennsylvania.

November 19, 1976

Argued Sept. 29, 1976.

Rehearing Denied Dec. 27, 1976.

Howard Gittis, Bernard Chanin, Philadelphia, for appellant in no. 89.

Sheldon L. Albert, City Sol., Michael N. Silver, Asst. City Sol., for appellant in No. 90.

Gregory M. Harvey, Philadelphia, for appellees.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

This matter is before this Court on appeals ^[1] by appellants, the Board of Elections of the City and County of Philadelphia(hereinafter referred to as the 'Board of Elections' or the 'Board') and the Honorable Frank L. Rizzo Mayor of the City of Philadelphia(hereinafter referred to as 'Mayor Rizzo' or the 'Mayor') from an Order of the Court of Common Pleas of Philadelphia County, entered on September 16, 1976.The order of the trial court was entered in an action in mandamus initiated by the appellees, Citizens Committee to Recall Rizzo and Shelly D Yanoff, Henry T. Reath, Arthur F. Grant, Joseph Mikuliak, H Patrick Swygert and Alfred Fleming, individually and on behalf of classes of persons similarly situated (hereinafter referred to collectively as the 'Recall Committee'), to compel the validation of the petition to recall Mayor Rizzo, which the Recall Committee had submitted to the Board of Elections pursuant to Article IX of the Philadelphia Home Rule Charter.^[2] The end result of the Order issued by the court below was to grant the Recall Committee's request for a writ of mandamus compelling the Board of Elections to accept the recall petition for filing and to implement the requisite procedures for the holding of the recall election on November 2, 1976.^[3]

The chronology of the case, although not fundamental to the resolution of the issues presented on these appeals, is of assistance in placing in perspective the difficulties which enshroud these proceedings.

On June 15, 1976, the Recall Committee submitted to the Board a petition to recall Mayor Rizzo, consisting of 20,156 pages of paper containing 210,806 signed lines, and accompanied by 5,039 affidavits, pursuant to Section 9.9--101(1) of the Philadelphia Home Rule Charter.As provided by Section 9.9--101(3) of the Charter, the Board of Elections commenced an examination of the petition for the purpose of determining its validity for filing or rejection.

On June 30, 1976, prior to expiration of the fifteen-day period for completion of the examination as provided by statute, the Board filed an action for declaratory judgment, seeking an extension of the fifteen-day requirement and the Court of Common Pleas, by Order dated July 7, 1976, granted an extension to the Board to midnight on August 9, 1976.^[4] The Board of Elections, seeking a further extension of time, filed a Petition to Amend the Order of July 7, 1976, on August 4, 1976.The trial court permitted the Board to continue its examination of the recall petition during the pendency of the proceedings on its subsequent petition for extension of time.Prior to a ruling by the trial court on the Board's Petition for further extension of time, the Board, on August 24, 1976, ruled that the recall petition was invalid and rejected it.^[5] On August 25, 1976, the Recall Committee initiated an action in mandamus against the Board, seeking to require the Board to file the recall petition and to order a recall election.On August 30, 1976, appellant, Mayor Rizzo, petitioned to intervene as a defendant and that petition was granted on August 31, 1976.

The trial court determined that an expeditious resolution of the issues was required because of the public importance of the recall question and the approaching deadline for placing the recall issue on the November ballot.Accordingly, it set forth an accelerated schedule for the filing of responsive pleadings and supportive briefs, pursuant to Pennsylvania Rule of Civil Procedure 1003.Upon resolution of the mandamus action in favor of the Recall Committee, these appeals followed.

On these appeals we are confronted with three primary issues: (1) the propriety of the trial court in entertaining the action in mandamus and granting the writ as requested; (2) the sufficiency of the evidence and the correctness of the legal position upon which the Board rejected the recall provisions; and (3) the constitutionality of the recall provisions of Article IX of the Philadelphia Home Rule Charter.^[6] These issues will be addressed seriatum.

I.Mandamus

AppellantBoard of Elections, has contested the propriety of the action in mandamus brought by the Recall Committee on the theory that the trial court lacked Jurisdiction to review the decision of the Board by way of mandamus.Jurisdiction relates only to the competency of the particular court to hear and determine the controversy of the class to which the disputed case belongs.American Labor Party Case, 352 Pa. 576, 44 A.2d 48(1945).'The test of jurisdiction is whether the court has power to enter upon the inquiry, not whether it may ultimately decide that it is unable to grant the relief sought in the particular case.'Main Cleaners & Dyers, Inc. v. Columbia Super Cleaners, Inc.,332 Pa. 71, 74, 2 A.2d 750, 751(1938).Whether the writ of mandamus was properly granted by the trial court below in no way affects the competency of that court to entertain such an action.The trial court may have had jurisdiction to consider the action for a writ of mandamus in the instant case; yet may have acted erroneously in granting the requested relief.There are separate inquiries and require individual consideration.American Labor Party Case, supra.

Jurisdiction to consider a petition for a writ of mandamus against a board of elections unquestionably lies in the court of common pleas by virtue of statutory grant.^[7]Cf.Oberleitner v. Bolinger, 42 Pa.D. & C.2d 623(1967).The Board, however, contends that the Recall Committee's proper recourse was to perfect an appeal from the Board's determination, pursuant to the provisions of the Local Agency Law.^[8] Even if the Board is correct in its contention, this argument does not go to the jurisdiction of the lower court to entertain an action for a writ of mandamus, but only to whether the writ was properly granted.It cannot be seriously argued that the Local Agency Law in some way removes the Jurisdiction of the court of common pleas to Hear petitions for writs of mandamus against boards of elections.SeeYoung v. Littlestown Area School District, 24 Pa.Cmwlth. 621,358 A.2d 120(1976);Flinn v. Pittenger, 19 Pa.Cmwlth. 54,338 A.2d 735(1975);Manheim Township School District v. State Bd. of Educ., 1 Pa.Cmwlth. 627,276 A.2d 561(1971).We are convinced that the court below did have the requisite jurisdictional power to entertain the instant controversy through a petition for a writ of mandamus.Being so convinced, our inquiry must now turn to the alternative question raised by appellantBoard of Elections, as to whether the order of the court below, Granting the writ of mandamus to the appellees, was appropriate under the circumstances present here.

Initially, we are obliged to emphasize that mandamus is an extraordinary legal remedy which will only issue when the petitioner seeking relief establishes that: (1) there is a want of any other adequate, appropriate and specific remedy available; (2) there is a Clear legal right to which he is entitled; and (3) there exists a corresponding duty on the part of the defendant.Porter v. Bloomsburg State College,450 Pa. 375, 301 A.2d 621(1973);Valley Forge Racing Assoc. v. State Horse Racing Commission,449 Pa. 292, 297 A.2d 823(1972);Mellinger v. Kuhn,388 Pa. 83, 130 A.2d 154(1957);Garratt v. Philadelphia,387 Pa. 442, 127 A.2d 738(1956).The burden of proof is clearly upon the party seeking this extraordinary remedy to establish his legal right to such relief.^[9]

In considering the first prerequisite to obtaining relief in mandamus, we must determine if the appellees had available an adequate alternative legal remedy by which to seek relief from the Board's determination.If so, the court below should have denied the requested extraordinary writ.Mellinger v. Kuhn, supra;Commonwealth v. Mitchell,82 Pa. 343(1876).In Commonwealth v. Mitchell, supra, at 350, this point was clearly enunciated:

'It is a well-established rule that he who sues for the writ of mandamus, must have some well-defined right to enforce, which is specific, complete and legal, and for which there is No other specific legal remedy, and the right he claims must be independent of that which he holds in common with the public at large.'(emphasis added)

It is the position of the Board, in this regard, that the Recall Committee possessed an adequate alternative legal remedy to that of mandamus by way of the appeal process provided under the Local Agency Law.^[10]The trial court found, however, that the 'determination' made by the Board of Elections as to the validity of the recall petition did not fall within the meaning of 'adjudication' as defined by Section 11302 of the Local Agency Law.^[11] Relying on that conclusion, the trial court rejected the proposition that the Local Agency Law provided an adequate alternative legal remedy to that of mandamus.For the reasons which follow, we agree with the court below in this respect.

First, in the definition of 'adjudication' provided in the ActSection 11302 speaks of a decision affecting rights...