Jones, In re

• Decision Date: 09 May 1984
• Citation: 476 A.2d 1287,505 Pa. 50
• Parties: In re Nomination Petition of Roxanne H. JONES for the Nomination of the Democratic Party for Senator in the Pennsylvania General Assembly from the Third Senatorial District. Appeal of Roxanne H. JONES.
• Court: Pennsylvania Supreme Court

Page 1287

476 A.2d 1287

505 Pa. 50

In re Nomination Petition of Roxanne H. JONES for the

Nomination of the Democratic Party for Senator in

the Pennsylvania General Assembly from

the Third Senatorial District.

Appeal of Roxanne H. JONES.

Supreme Court of Pennsylvania.

Argued March 8, 1984.

Decided May 9, 1984.

Michael T. McCarthy, Harrisburg, for appellant

Lee C. Swartz, Harrisburg, James J. Binns, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

ORDER

PER CURIAM.

There not having been established a valid challenge under the Election Code as to the candidacy for the nomination of Roxanne H. Jones, the Secretary of the Commonwealth is ordered to certify forthwith to the County Board of Elections of Philadelphia the name and ballot position of Roxanne H. Jones as candidate for nomination for Senator in the General Assembly of the Commonwealth of Pennsylvania from the Third Senatorial District. Opinions to follow.

McDERMOTT and HUTCHINSON, JJ., dissent because the Petition to Set Aside Nomination Paper filed in the Commonwealth Court expressly relied on Section 977 of the Election Code.

LARSEN, J., did not participate in this matter.

OPINION

NIX, Chief Justice.

This opinion is filed in support of the per curiam orders of this Court dated March 15, 1984 and March 28, 1984. The order of March 15, 1984 vacated an order entered by Judge Rogers, of the Commonwealth Court, setting aside the nomination petition that had been filed by Ms. Roxanne H. Jones, (hereinafter referred to as "Candidate"), who was seeking the Democratic Party's nomination for Senator in the General Assembly as the representative of the Third Senatorial District. The order of March 28, 1984 directed the Secretary of the Commonwealth to certify to the County Board of Elections of Philadelphia the name of the Candidate so that it would appear on the Democratic Ballot, within the said district, in the Primary Election to be held on April 10, 1984.

In order to accommodate the need for a prompt disposition, because of the exigencies entailed in the election process, we entered these orders without opinion. This opinion sets forth the reasons supporting those orders.

I.

A.

There are two individuals seeking the Democratic nomination for the office in question. One of the aspirants is the incumbent Senator, T. Milton Street, who was a member of a group of five (5) objectors initiating this matter. ¹ The person seeking the office is the Candidate. The objectors raised two complaints before Judge Rogers. One charged that the affidavit executed and sworn to by the Candidate misrepresented that a Statement of Financial Interest had been filed as required by section 4(b) of the State Ethics Act, Act of October 4, 1978, P.L. 883, No. 170, § 4, 65 P.S. § 404(b) (Supp.1983-84). This objection was dismissed on the authority of our decision in Commonwealth, State Ethics Commission v. Baldwin, 498 Pa. 255, 445 A.2d 1208 (1982). ² The propriety of that ruling has not been raised before this Court. Of crucial importance is there has been no other objection raised specifically attacking the nomination petition in question.

The second argument of the objectors speculates that if the Candidate was successful in the primary election, and if she was also victorious in the general election, the next duly constituted Senate, following the November General Election of 1984 might refuse to seat her, if they concluded that she had not met all of the qualifications set forth in Article 2, section 5 of the Constitution of Pennsylvania. ³ Judge Rogers accepted the invitation to indulge in those conjectural lemmata, and determined, after making his findings that the Candidate was not "domiciled" within the Third Senatorial District on or before November 6, 1983, that the Candidate should not be permitted to run for the office. In response to this order we entered our order of March 15, 1984.

After the entry of our March 15, 1984 order there were no remaining impediments to the certification of the Candidate. Notwithstanding, the Secretary of the Commonwealth by communication dated March 26, 1984 refused to certify the name of the Candidate to be printed on the ballot, relying upon a Senate Resolution (Serial No. 114) dated March 20, 1984. Since this action by the Senate was devoid of legal authority and totally without efficacy, upon the request of the Candidate, ⁴ we entered the order of March 28, 1984 directing the Secretary to place the name of the Candidate upon the ballot for the April 10, 1984 primary election.

B.

At the outset it is necessary to accurately identify the issue raised by Judge Rogers' order. Judge Rogers did not find that the candidate was not a resident of the address appearing in her nomination petition at the time she executed the candidate's affidavit. Further, it is agreed that her listed residence in the petition is within the Third Senatorial District. Most important, Judge Rogers did not find any false statements in the affidavit filed by the Candidate. Thus the issue is not whether a nomination petition may be set aside where it is established that the petition contained a false candidate's affidavit. ⁵ Judge Rogers did not attempt to assign a defect in the petition as the basis for his order requiring that the petition be set aside. Rather, he concluded that in view of his determination that appellant had failed to establish that she was an "inhabitant" within the district on or before November 6, 1983, ⁶ she could not satisfy the provisions of Article 2, section 5 of the Pennsylvania Constitution and for that reason she should not be permitted to run for the office. Thus the question presented to us was whether or not Article 2, section 5 dictates that a court should make an a priori determination of whether a candidate meets the constitutional requirements for the office she seeks to obtain and on the basis of that judgment deny the candidate the right to put her name before the public for their consideration.

II.

A.

The argument presented relies upon the unstated premise that Article 2, section 5 ⁷ is self-executing and authorizes court involvement. An analysis forces the conclusion that neither Article 2 in its entirety, nor section 5 specifically, confers authority in the court to act in this area.

Article 2 is concerned with the composition, powers and duties of the legislature. Nothing in this article even remotely suggests the conferrence of jurisdiction upon the courts to test the qualifications of the members of the General Assembly. ⁸ Indeed, section 9 of Article 2 expressly states that each body of the General Assembly shall be the judge of the qualifications of its members. ⁹ Moreover, Article 2, section 5 by its express terms refers only to the qualifications of the members of the body. There is no reference to persons who file to run for the office.

Aside from the obvious conclusion that Article 2 was not designed to confer judicial power, we would also be restrained from intervening at this juncture by virtue of the doctrine of separation of powers of the three independent branches of government. We note the existence of a body of case law which advocates that the language used in section 9 is properly interpreted as placing the exclusive jurisdiction in the legislative body and divesting the courts of all jurisdiction in the matter. Buskey v. Amos, 294 Ala. 1, 310 So.2d 468 (1975) (Alabama Constitution vests legislature with sole and exclusive power to judge qualifications of members and deprives courts of jurisdiction of such matters.); In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951) (California Constitution confers exclusive jurisdiction upon assembly to judge qualifications of assemblymen and assembly cannot authorize courts to decide contests after primary elections); Mills v. Newell, 30 Colo. 377, 70 P. 405 (1902) (Under Colorado Constitution, senate alone has jurisdiction to determine whether vacancy exists in senate district; the court has no authority to decide the question.); State ex rel. Biggs v. Corley, 36 Del. 135, 172 A. 415 (1934) (Courts have no jurisdiction to consider question of implied resignation or abandonment by senator or representative since Delaware Constitution vests in each house the right, power and authority to judge election and qualifications of its members.); McPherson v. Flynn, 397 So.2d 665 (Fla.1981) (Under Florida Constitution each house is the sole judge of the qualifications of its members; the courts have no jurisdiction to determine constitutional qualifications.); Burge v. Tibor, 88 Idaho 149, 397 P.2d 235 (1964) (Idaho Constitution makes each house sole judge of election and qualifications of its members.); State ex rel. Acker v. Reeves, 229 Ind. 126, 95 N.E.2d 838 (1951) (Indiana Constitution's grant of jurisdiction to the general assembly to judge qualifications of its members excludes jurisdiction from courts.); State ex rel. Turner v. Scott, 269 N.W.2d 828 (Iowa 1978) (Power granted by Iowa Constitution to legislature to judge election and qualifications of its members cannot be exercised by the courts.); State ex rel. Martin v. Gilmore, 20 Kan. 551 (1878) (Kansas Constitution makes each house the ultimate tribunal as to the qualifications of its members; this power is exclusive and cannot be abridged.); Covington v. Buffet, 90 Md. 569, 45 A. 204 (1900) (Under provision of Maryland Constitution vesting senate with power to judge the election and qualifications of its members, the senate has exclusive authority to determine whether a vacancy in the senate exists, and the courts have no jurisdiction to decide such a question.); Dinan v. Swig, 223 Mass. 516, 112 N.E. 91 (1916) (Massachusetts Constitution vests power to determine election and qualifications of members exclusively in each branch; this power is comprehensive, full and complete.); People ex rel. Drake v. Mahaney, 13 Mich. 481 (18...