Kauffman v. Osser

• Decision Date: 12 November 1970
• Citation: 271 A.2d 236,441 Pa. 150
• Parties: Sylvia KAUFFMAN and Phyllis Gitlin, Appellants, v. Maurice S. OSSER, Thomas P. McHenry, Louis Menna, County Commissioners of Philadelphia County, sitting as County Board of Elections and Vincent Gaitley, Chief Clerk, County Board of Elections, and Joseph J. Kelley, Jr., Secretary of the Commonwealth of Pennsylvania.
• Court: Pennsylvania Supreme Court

271 A.2d 236

441 Pa. 150

Sylvia KAUFFMAN and Phyllis Gitlin, Appellants, v. Maurice S. OSSER, Thomas P. McHenry, Louis Menna, County

Commissioners of Philadelphia County, sitting as County Board of Elections and Vincent Gaitley, Chief Clerk, County Board of Elections, and Joseph J. Kelley, Jr., Secretary of the Commonwealth of Pennsylvania.

Supreme Court of Pennsylvania.

November 12, 1970.

Sheldon W. Farber, Norristown, for appellants.

Levy Anderson, City Sol., Matthew W. Bullock, Jr., First Deputy City Sol., John McNally, Jr., Deputy City Sol., Philadelphia for appellees.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN ROBERTS and POMEROY, JJ.

OPINION

JONES Justice.

On May 15, 1970, Sylvia Kauffman and Phyllis Gitlin, (appellants), instituted an action under the Uniform Declaratory Judgments Act ^[1] in the Court of Common Pleas of Philadelphia City against three named individuals who constitute the County Board of Elections and one individual, its chief clerk, (election officials), in the City of Philadelphia. ^[2]

This action was brought by the appellants who purported to act on their own behalf as registered electors of the Democratic party in Philadelphia who intend to vote In person at the polls in the November 1970 election and the purpose of the action was to enjoin and restrain the election officials from issuing or recognizing a certain class of absentee ballots on the ground that the provisions of the Absentee Ballot Law ^[3] authorizing such class of ballots are invalid under the federal and state constitutions.

Preliminary objections filed by the election officials were sustained by the court below and the appellants' complaint dismissed. From that order, the instant appeal stems.

Appellants urge several reasons why various provisions of the absentee ballot statute are constitutionally infirm: (1) that, insofar as the statute permits qualified electors and their spouses while on 'vacations', on election dates, to vote by absentee ballots, the statute violates Article 7, Section 14, of the Pennsylvania Constitution ^[4] , P.S.; (2) that the provisions of the statute providing for the manner of challenging absentee ballots (i.e. the time when challenges must be made, the paucity of time within which a challenge may be entertained, the grounds for challenge and the lack of an appropriate method of reviewing the propriety of the challenges), violates both the equal protection and due process clauses of the U.S. Constitution and Article 1, Section 5 of the Pa. Constitution; ^[5] (3) Section 8(f) of the statute which requires a $10 deposit to challenge each absentee ballot violates both the 14th Amendment of the U.S. Constitution and Article 1, Section 5 of the Pa. Constitution. ^[6]

The court below, in an opinion supporting its order, stated that: (a) it Adopted the reasoning of two lower court cases (Haakenson v. Parkhouse, C. P. Montgomery County, No. 69--12670 and Pisciotta v. County Commissioners, Common Pleas, Philadelphia City, No. 2313 May Term, 1969) which upheld the validity of the ten collar deposit necessary under the statute, to challenge an absentee ballot; ^[7] (b) 'With regard to the extension of the privilege to vote by absentee ballot to those on vacation and their spouses, (it failed) to see how (appellants) are affected. The possible harm to be suffered by (appellants) is too speculative to give them standing to pursue this action.' To the latter reason initially we address our inquiry.

Do the present appellants have a justiciable interest or standing to maintain the present action? The validity and constitutional conformity of a statute is not subject to attack in Vacuo. Only a person or persons having a justiciable interest may launch such attack. The Uniform Declaratory Judgments Act--under which provisions this action was brought--provides in pertinent part: 'Any person * * * whose rights, status, or other legal relations are affected by a statute, * * * may have determined any question of construction or validity arising under the * * * statute * * * and obtain a declaration of rights, status, or other legal relation thereunder.' (Emphasis supplied). (Act of 1923, supra, § 2, 12 P.S. § 832). See: Schoenbrun v. Nettrour, 360 Pa. 474, 61 A.2d 868 (1948).

Appellants take the position that, if qualified electors and their spouses while on 'vacation' at the time of election are permitted to vote by absentee ballot or if the statutory requirements concerning the manner of exercising challenges to absentee ballots are enforced, the appellants and all other qualified Democratic electors in Philadelphia who intend to vote In person at the polls at the November 1970 election will have their votes diluted by the absentee votes and, thereby, the allegedly invalid provisions of the statute will 'affect' their rights.

Questions of standing and justiciable interest arise not only in connection with the institution of litigation at the nisi prius level but also in connection with the right to challenge, at the appellate level, determinations made by subordinate courts. Although statutes governing such rights vary in language, it is generally well settled that an interest to be justiciable must be more than a general interest and must be a direct, substantial and present, as contrasted with a remote or speculative, interest. See: Beauty Hall v. State Board of Cosmetology, 418 Pa. 225, 231--232, 210 A.2d 495 (1965): 22 Am.Jur.2d § 11, p. 849. See also: Man O'War v. State H.R. Commission, 433 Pa. 432, 250 A.2d 172 (1969); Price v. Phila. Parking Authority, 422 Pa. 317, 325--339, 221 A.2d 138 (1966); Dwyer v. Dilworth, 392 Pa. 123, 127--128, 139 A.2d 653 (1958); White v. Phila., 408 Pa. 397, 402, 184 A.2d 266 (1962).

Many years ago in Smith v. McCarthy, 56 Pa. 359, 362, (1867), we said: 'Even supposing the act to be, as alleged, unconstitutional, private parties cannot interfere by bill to ask it to be so declared, unless on account of some special damage or injury to them in person or property.' Any objection to the validity of a statute must be raised by one having the right to do so. See: Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267 (1963); Knowles Estate, 295 Pa. 571, 580--582, 145 A. 797 (1929); Gentile v. Philadelphia & R.R. Co., 274 Pa. 335, 118 A. 223 (1922); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 16 U. of P.L.Rev., 1033 (1968).

Moreover, it is hornbook law that a person whose interest is common to that of the public generally, in contradistinction to an interest peculiar to himself, lacks standing to attack the validity of a legislative enactment. See: Doremus v. Bd. of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917); Knowles Estate, supra; St. Bartholomew's P.E. Church Charter, 260 Pa. 284, 103 A. 826 (1918); Calvary Bible Presbyterian Church v. Bd. of Regents, 72 Wash.2d 912, 436 P.2d 189, cert. den. 393 U.S. 960, 89 S.Ct. 389, 21 L.Ed.2d 372 (1968). See also: 16 Am.Jur.2d, § 122, p. 318; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265 (1961). In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), while holding there was standing, the United States Supreme Court framed the precise issue to be: 'Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions? This is the gist of the question of standing.' 369 U.S. at 204, 82 S.Ct. at 703.

We have examined with great care appellants' claim to standing and to a justiciable interest to maintain this action. In our opinion, the interest of appellants is not peculiar to them, is not direct, and is too remote and too speculative to afford them, either in their individual capacities or in their claimed class representative capacity, a standing to attack these statutory provisions. Basic in appellants' position is the Assumption that those who obtain absentee ballots, by virtue of statutory provisions which they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and thus will cause a dilution of appellants' votes. This assumption, unsupported factually, is unwarranted and cannot afford a sound basis upon which to afford appellants a standing to maintain this action. While the voter-appellants in Baker v. Carr were able to demonstrate injury distinct from other voters in the state, the interest which appellants claim is nowise peculiar to them but rather it is an interest common to that of all other qualified electors. In the absence of any showing of a legal standing or a justiciable interest to maintain this action, we cannot permit their challenge to the validity of this statute.

In view of the conclusion reached, we do not, nor need we, express any opinion as to the validity of the statutory provisions which this action attacks.

Order affirmed.

BELL, C.J., concurred in the result.

COHEN, J filed a dissenting opinion in which EAGEN and O'BRIEN, JJ., joined.

COHEN, Justice (dissenting).

The legislature may enact laws governing the conduct of elections. Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914). However, 'no legislative enactment may contravene the requirements of the Pennsylvania or United States Constitutions.' Shankey v. Staisey, 436 Pa. 65, 68--69, 257 A.2d 897, 898, cert denied 396 U.S. 1038, 90 S.Ct. 684, 24 L.Ed.2d 682 (1970). Article 7, Section 14 of our Constitution provides that absentee ballots may be cast by those...