Martin v. Haggerty

• Decision Date: 29 September 1988
• Citation: 120 Pa.Cmwlth. 134,548 A.2d 371
• Parties: Thomas MARTIN and Edward Bernard Rosenfeld, Petitioners, v. James J. HAGGERTY, Secretary of State of the Commonwealth of Pennsylvania et al., Respondents.
• Court: Pennsylvania Commonwealth Court

Page 371

548 A.2d 371

120 Pa.Cmwlth. 134

Thomas MARTIN and Edward Bernard Rosenfeld, Petitioners, v. James J. HAGGERTY, Secretary of State of the Commonwealth of Pennsylvania et al., Respondents.

Commonwealth Court of Pennsylvania.

Argued June 13, 1988.

Decided Sept. 29, 1988.

Michael R. Dillon, David W. Folts, Joseph A. Torregrossa, Morgan, Lewis & Bockius, Philadelphia, for petitioners.

LeRoy S. Zimmerman, Atty. Gen., Amy Zapp, Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, for respondents.

Before MacPHAIL, J., and BARBIERI and KALISH, Senior Judges.

BARBIERI, Senior Judge.

Before us are the preliminary objections of Respondents ¹ to a class action petition for review addressed to our original jurisdiction and filed by Thomas Martin and Edward Bernard Rosenfeld.

Petitioners are inmates confined in state correctional institutions. They allege that while they have been incarcerated, Respondents have denied them the right to vote by refusing to allow them to register, not allowing them to vote at their place of residence, by failing to provide polling facilities in the various correctional institutions and by denying them the use of absentee ballots.

On February 9, 1988, Petitioners filed a petition for review on behalf of themselves and others "who are confined in state correctional institutions and are denied the right to register and vote." Petitioners seek a declaratory judgment that they have the right to register and vote under the state Constitution and request injunctive relief which would enable them to do so.

Respondents have raised the following preliminary objections: (1) that the petition for review fails to state a claim for which relief may be granted; (2) that Petitioners have misjoined Respondents, Owens, Jeffes, ² and Zimmerman; and (3) that the county boards of elections are indispensable parties to the action and therefore the petition should be dismissed.

We will first address the merits of Respondents' demurrer, keeping in mind that such a preliminary objection admits all well-pleaded facts in the pleading as well as all reasonable inferences deducible therefrom. Further, a demurrer may not be sustained unless it is clear from the face of the pleading that the law will not permit the recovery sought. E.Z. Parks, Inc. v. Larson, 91 Pa.Commonwealth Ct. 600, 604 n. 4, 498 A.2d 1364, 1367 n. 4 (1985), aff'd per curiam, 509 Pa. 496, 503 A.2d 931 (1986).

The petition characterizes the class as all those confined in state correctional institutions who are otherwise qualified electors. Therefore the class, which has not yet been certified pursuant to Pa.R.C.P. No. 1707, ³ could conceivably consist of convicted misdemeanants and pre-trial detainees as well as convicted felons. ⁴ However, it appears that in Pennsylvania, convicted misdemeanants and pre-trial detainees confined in a penal institution are permitted to register and vote. 1974 Op.Atty.Gen. No. 47. ⁵ Further, Petitioners' brief addresses the issue of whether convicted felons have the right to vote under the state Constitution. ⁶ We shall therefore limit our discussion to the rights of convicted felons, as this is what Petitioners have argued.

Art. VII, § 1 of the Pennsylvania Constitution sets forth qualifications of electors. This provision states that every citizen who meets certain age and residency requirements "shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact." (Emphasis added.)

Pennsylvania's Constitution addresses absentee voting in Art. VII, § 14. That section provides that the Legislature may pass laws allowing for absentee balloting, by "qualified electors" who cannot attend their proper polling places on election day because their duties, occupation, or business, require them to be elsewhere or because of illness, physical disability, observance of a religious holiday or election day duties.

The Pennsylvania Election Code (Code) ⁷ does not explicitly disenfranchise incarcerated prisoners. However, Sections 102(w) ⁸ and 1301 of the Code ⁹ define "qualified absentee electors." These sections provide in pertinent part:

That the words "qualified absentee elector" shall in nowise be construed to include persons confined in a penal institution or a mental institution nor shall it in anywise be construed to include a person not otherwise qualified as a qualified elector in accordance with the definition set forth in section 102(t) of this act.

(Emphasis added.)

The aforementioned provisions of the Code have been held not to violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Owens v. Barnes, 711 F.2d 25 (3rd Cir.1983), cert. denied, 464 U.S. 963, 104 S.Ct. 400, 78 L.Ed.2d 341 (1983). The Court in Owens, noted that a state does not violate the Fourteenth Amendment if it chooses to disenfranchise all convicted felons. The Court held that the Code does not violate equal protection by denying incarcerated convicted felons the right to vote while permitting those who are not incarcerated to do so, since the Commonwealth could rationally "decide that one of the losses to which a prisoner who is incarcerated should be subject is that of participation in the democratic process which governs those who are at liberty." Id. at 28.

Although the Code provisions do not violate the federal Constitution, at least in regards to convicted felons, Owens, Petitioners maintain that those sections defining qualified absentee electors do violate the state Constitution. It is true that a state constitution may provide greater protection for individual rights than that provided by the Constitution of the United States, Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co., 512 Pa. 23, 515 A.2d 1331 (1986), and Petitioners seek a declaratory judgment that they may not be denied the right to exercise the franchise under the Pennsylvania Constitution.

Petitioners contend that they are qualified electors pursuant to Art. VII, § 1 of the state Constitution and therefore the provisions of the Code, exempting them from the definition of "qualified absentee elector" are therefore unconstitutional. They maintain that by denying them the right to register and vote, the Legislature is, in effect, redefining the qualifications of an elector set forth in Art. VII, § 1. Petitioners further maintain, that the Legislature lacks the power to add to the qualifications set forth in Art. VII, § 1. However, our Supreme Court has held otherwise. Ray v. Commonwealth, 442 Pa. 606, 276 A.2d 509 (1971). Ray, an incarcerated convicted felon, sought to enjoin enforcement of a provision of the Code ¹⁰ which excepted any prisoner confined in a penal institution from the definition of an absentee elector.

Ray maintained that by denying him an absentee ballot the Legislature violated his constitutional rights pursuant to Art. I, § 5 ¹¹ and Art. VII, § 14 of the Pennsylvania Constitution. The Pennsylvania Supreme Court held that the rights qualified under both provisions were conditioned on the voter being a "qualified elector." The Court went on to state that "just as the Legislature has the power to define 'qualified electors' in terms of age and residency requirements, so it also has power to except persons 'confined in a penal institution' from the class of 'qualified electors'." ¹² Id. at 609, 276 A.2d at 510. Ray is thus controlling in this case.

Art. VII, § 1 conditions the qualifications of electors on those laws which the Legislature may enact requiring and regulating voter registration. Therefore, not only must a voter qualify as an elector under the terms set forth in Art. VII, § 1 but he or she must also qualify under the laws the Legislature passes regulating the electoral process.

In this case, the General Assembly enacted provisions in the Code which exempts those confined in penal institutions from the definition of "qualified absentee elector." Prior to the passage of absentee balloting legislation, an individual who was qualified under the terms of Art. VII, § 1, but who could not attend his regular polling place for a reason such as illness, was effectively disenfranchised. ¹³ The Legislature has chosen to extend the franchise to certain categories of voters who would otherwise not be able to vote through the provisions in the Code allowing for absentee ballots. However, it has not seen fit to extend the privilege of voting by absentee ballots to all citizens otherwise qualified who for some reason other than those listed in Section 1301 of the Code cannot attend their regular place. It is the Legislature's prerogative to regulate registration and thus decide who may receive an absentee ballot.

Petitioner argues that an interpretation of Art. VII, § 1, which permits the Legislature to add to the qualifications of an elector could result in laws which only allow individuals of a certain party or whose name begin with a certain letter to exercise the franchise. Obviously any such ridiculous law would readily fall victim to a challenge on equal protection grounds.

Petitioners claim that Ray is implicitly overruled by the United States Supreme Court decision in O'Brien. In that case, pre-trial detainees and convicted misdemeanants claimed New York's voting scheme violated the Equal Protection Clause ¹⁴ of the Fourteenth Amendment. These classes of inmates were not disenfranchised by either New York's Constitution or its laws. In fact, the absentee voting law, as applied, permitted pre-trial detainees and convicted misdemeanants incarcerated outside the county of their residence to vote by absentee ballot, presumably because such inmates could not appear at their regular polling place. However, these same classes of inmates, incarcerated within the county of their residence, were...