Cohen v. Rendell

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: Before PELLEGRINI and KELLEY, JJ., and RODGERS; PELLEGRINI; RODGERS
• Citation: Cohen v. Rendell, 684 A.2d 1102 (Pa. Commw. Ct. 1996)
• Decision Date: 06 November 1996
• Parties: David COHEN, Councilman; Thomas Paine Cronin, President (AFSCME); Lance Haver, Education Director; James Shigaki, 12th and Somerville STS Residents Association, Appellants, v. Edward G. RENDELL, Mayor; John F. Street, President of City Council; and City of Philadelphia.

Page 1102

684 A.2d 1102

David COHEN, Councilman; Thomas Paine Cronin, President (AFSCME); Lance Haver, Education Director; James Shigaki, 12th and Somerville STS Residents Association, Appellants, v. Edward G. RENDELL, Mayor; John F. Street, President of City Council; and City of Philadelphia.

Commonwealth Court of Pennsylvania.

Argued Oct. 8, 1996.

Decided Nov. 6, 1996.

Samuel C. Stretton, for Appellants.

Richard G. Feder, for Appellees.

Before PELLEGRINI and KELLEY, JJ., and RODGERS, Senior Judge.

PELLEGRINI, Judge.

Thomas Paine Cronin, Lance Haver, and James Shigaki (collectively, Private Citizens), and Councilman David Cohen, appeal from the November 22, 1995 order of the Court of Common Pleas of Philadelphia County (trial court), which granted the preliminary objections of Edward G. Rendell (Mayor of the City of Philadelphia), John F. Street (Council President), and the City of Philadelphia, (collectively, City) and dismissed the complaint of Private Citizens and Cohen with prejudice.

On July 28, 1995, Private Citizens and Cohen filed a complaint against City, seeking a declaratory judgment that the 28 city ordinances approved during Council's June 22, 1995 session were not properly adopted pursuant to the procedures set forth in the Philadelphia Home Rule Charter (Charter), ¹ specifically § 2-201 ² of the Charter, and were, thus, invalid.

The facts alleged by the complaint of Private Citizens and Cohen are as follows. During the June 22, 1995 session of Philadelphia City Council (Council), Council elected to vote on 28 non-related ordinances collectively rather than individually. All 28 bills were passed by a consent vote without individual consideration or individual votes. Private Citizens and Cohen sought declaratory relief on the basis that those bills, passed by a consent vote, were invalidly passed in violation of the Charter and are ineffective.

The record reflects that Council adopted a consent resolution so that a collective roll call vote could be taken on a number of ordinances at one time. That resolution was not approved by a unanimous vote. Rather, the transcript of the June 22, 1995 Council meeting indicates that a roll call vote on the resolution was adopted by Council vote and recorded as 12 ayes and one nay (with only Cohen voting nay). (R.R. A-45). As to the 28 ordinances, Council's chief clerk read the numbers of each of the 28 bills and, upon question of whether the bills shall finally pass, the votes were recorded at one time as 11 ayes and one nay. (R.R. A-45). Again, with the exception of Cohen, all Council members voted to approve those ordinances. The transcript of the Council proceeding does not indicate how each individual Council member voted, either on each of the 28 ordinances or on the total package, though the Journal of the City of Philadelphia does indicate the individual votes as to the package of 28 ordinances.

Private Citizens and Cohen sought injunctive relief enjoining the City from enforcing any of those ordinances. In response, City filed preliminary objections alleging that Private Citizens and Cohen lacked standing to bring their complaint, and by demurrer, that such complaint failed to state a claim upon which relief could be granted. The trial court granted City's preliminary objections and dismissed the complaint of Private Citizens and Cohen with prejudice. The trial court held Private Citizens were not able to demonstrate standing to bring this lawsuit, because none demonstrated that he was directly or adversely affected by any of the 28 ordinances. As to Cohen, the trial court held that even though Cohen may have had standing, he was never denied his right to vote, so he was not aggrieved by any action of Council.

Though holding that Private Citizens and Cohen lacked standing and were not aggrieved, the trial court went on to address the merits of their complaint, and found that even if they had standing, there was no merit to their contention that the Charter was violated because Council complied with all of its requirements. The trial court affirmed its November 2, 1995 order granting the preliminary objections of City and dismissing the complaint of Private Citizens and Cohen. This appeal followed. ³

As to the standing issue, Private Citizens contend that each have standing to maintain the action since each has an interest in Council following the Charter's procedure for adopting ordinances. In order for Private Citizens to have standing as "aggrieved" citizens, they must assert more than the common interest of all citizens in procuring obedience to the law. See William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). "Standing is the requirement that the person bringing the action be adversely affected by the matter they seek to challenge to assure that they are an appropriate party to bring the matter to a judicial resolution." Drummond v. University of Pennsylvania, 651 A.2d 572, 577 (Pa.Cmwlth.1994). A person who is not adversely affected in any way by the matter he seeks to challenge cannot be "aggrieved" and, thus, has no standing to seek judicial resolution of his case. William Penn, supra. Rather, he or she must allege a "direct" interest by which he or she demonstrates the causation of harm to his or her interest by the matter of which he or she complains. Id.

Private Citizens clearly do not possess the type of interest in the result of the ordinances necessary to obtain standing because they have not asserted anything more than an interest common to all citizens. Though they contend that Cronin and Haver represent citizens of the City of Philadelphia who "would be affected by the various passed Ordinances", they have failed to specifically allege that any interest of either Cronin or Haver has been directly affected here. And, though they contend that Shigaki was directly affected because one of the 28 ordinances affected "streets in the area in which Shigaki lived and encompassed by members of his civic group", Private Citizens have not pled any facts that would show that he is specifically aggrieved.

Councilman Cohen, however, as a Council member, possesses the requisite standing to bring the complaint against the City. In Morris v. Goode, 107 Pa.Cmwlth. 529, 529 A.2d 50 (1987), we considered whether individual members of a city council have standing to seek injunctive relief based on council's failure to comply with the voting procedures mandated by the Charter. In Morris, we held that the plaintiffs, as council members, possessed a legal interest granted by the Charter in having a quorum present to vote on council resolutions. Id. 529 A.2d at 53. In other words, council members individually possess a legal interest in enforcing the voting procedures established by the Charter, and have standing to seek declaratory relief when such procedures are violated.

And, in an analogous situation, in Zemprelli v. Thornburg, 47 Pa.Cmwlth. 43, 407 A.2d 102 (1979), we held that a Pennsylvania State Senator's right to have Governor's nominations to vacant appointed offices submitted within the constitutional period conferred a legal interest upon him by which he possessed standing to seek a judicial remedy against the Governor when he failed to submit such nominations. Because Cohen, as an elected, voting member of Council, has a legal and direct interest in ensuring that Council follows the procedures set forth by the Charter, we hold that he does possess standing to bring his case against the City.

As to the merits, Cohen contends that the voting procedures set forth in the Charter were violated by Council's use of a "consent agenda" adopting the procedure of collective voting which violated Section 2-201 of the Charter which requires that an individual vote be taken on each proposed ordinance. Cohen argues that the adoption of a consent agenda, by which votes are taken collectively, violates that provision for two reasons. First, the ordinances in question contained more than one subject, and second, such vote does not provide each council member with an opportunity to individually vote, thereby preventing or at the least, greatly diminishing the right of each council member to vote on each individual ordinance.

Section 2-201(1) of the Charter provides that "[e]very proposed ordinance ... shall contain not more than one subject which shall be clearly and adequately expressed in its title." Section 2-201(6) provides that "[w]hen any bill is on final passage, votes shall be taken by ayes and nays and the names of the councilmen voting for and against the bill shall be entered on the journal of proceedings." The issue before us then is whether Cohen has set forth a cause of action by alleging that Council's collective vote on multiple bills violates the voting procedures set forth by the Charter. More specifically, when Council (by a vote of 12 to 1), adopted a resolution "suspending the Rule of Council to permit a single roll call vote" on 28 separate bills, and then voted by a single vote (of 11 to 1) to adopt the 28 bills, it violated Section 2-201(1) or (6) of the Charter.

Where a charter contains a provision requiring that an aye and nay vote be taken and the names of individuals so voting be recorded on a council's permanent record, the general rule...