Pa. State Ass'n of Jury Comm'rs v. Commonwealth

• Decision Date: 31 July 2013
• Docket Number: No. 247 M.D. 2013,247 M.D. 2013
• Parties: Pennsylvania State Association of Jury Commissioners, Larry A. Thompson, President, Pennsylvania State Association of Jury Commissioners, Martha S. Smith, Duly Elected Jury Commissioner of Chester County, Mary Jane Dellafiora, Duly Elected Jury Commissioner of Indiana County, George Richard Zimmerman, Duly Elected Jury Commissioner of Washington County, Pamela L. Bisbing, Duly Elected Jury Commissioner of Monroe County, Clinton A. Bonetti, First Vice President of Pennsylvania State Association of Jury Commissioners and Duly Elected Jury Commissioner of Butler County, Richard L. Ward, Jr., Duly Elected Jury Commissioner of Columbia County, Kristen Gensel, Duly Elected Jury Commissioner of Columbia County, Joanne Cisco Olszewski, Duly Elected Jury Commissioner of Montgomery County, Donald Lee Dissinger, Duly Elected Jury Commissioner of Perry County, Judith L. Fisher, Duly Elected Jury Commissioner of Washington County, Sandra Oden Kellner, Duly Elected Jury Commissioner of Venango County, Doretta K. Mellott, Duly Elected Jury Commissioner of Fulton County, Glenn E. Ford, Duly Elected Jury Commissioner of Fulton County, Marjorie A. Wassmer, Duly Elected Jury Commissioner of Pike County, Gertrude Smith, Duly Elected Jury Commissioner of Pike County, Jerry Olson, Duly Elected Jury Commissioner of Elk County, Shelley L. Blythe, Duly Elected Jury Commissioner of Beaver County, Petitioners v. Commonwealth of Pennsylvania c/o Attorney General of Pennsylvania, Honorable Thomas Corbett, Governor of Pennsylvania, Honorable Carol Aichele, Secretary of the Commonwealth of Pennsylvania, Honorable Kathleen Kane, Attorney General of Pennsylvania, Honorable Joseph B. Scarnati, III, Elected President Pro Tempore of the Senate of the Commonwealth of Pennsylvania, Honorable Samuel H. Smith, Speaker of the House of Representatives of the Commonwealth of Pennsylvania, Respondents
• Court: Pennsylvania Commonwealth Court

Pennsylvania State Association of Jury Commissioners, Larry A. Thompson, President,
Pennsylvania State Association of Jury Commissioners, Martha S. Smith, Duly Elected Jury Commissioner
of Chester County, Mary Jane Dellafiora, Duly Elected Jury Commissioner of Indiana County,
George Richard Zimmerman, Duly Elected Jury Commissioner of Washington County,
Pamela L. Bisbing, Duly Elected Jury Commissioner of Monroe County, Clinton A. Bonetti,
First Vice President of Pennsylvania State Association of Jury Commissioners
and Duly Elected Jury Commissioner of Butler County, Richard L. Ward, Jr., Duly Elected Jury Commissioner
of Columbia County, Kristen Gensel, Duly Elected Jury Commissioner of Columbia County,
Joanne Cisco Olszewski, Duly Elected Jury Commissioner of Montgomery County, Donald Lee Dissinger,
Duly Elected Jury Commissioner of Perry County, Judith L. Fisher, Duly Elected Jury Commissioner
of Washington County, Sandra Oden Kellner, Duly Elected Jury Commissioner of Venango County,
Doretta K. Mellott, Duly Elected Jury Commissioner of Fulton County, Glenn E. Ford,
Duly Elected Jury Commissioner of Fulton County, Marjorie A. Wassmer,
Duly Elected Jury Commissioner of Pike County,
Gertrude Smith, Duly Elected Jury Commissioner of Pike County, Jerry Olson,
Duly Elected Jury Commissioner of Elk County, Shelley L. Blythe,
Duly Elected Jury Commissioner of Beaver County, Petitioners
v.
Commonwealth of Pennsylvania c/o Attorney General of Pennsylvania,
Honorable Thomas Corbett, Governor of Pennsylvania, Honorable Carol Aichele,
Secretary of the Commonwealth of Pennsylvania, Honorable Kathleen Kane,
Attorney General of Pennsylvania, Honorable Joseph B. Scarnati, III, Elected President Pro Tempore
of the Senate of the Commonwealth of Pennsylvania, Honorable Samuel H. Smith, Speaker
of the House of Representatives of the Commonwealth of Pennsylvania, Respondents

No. 247 M.D. 2013

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: July 19, 2013
FILED: July 31, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON

In this original jurisdiction matter, the constitutionality of a law authorizing the governing body of certain counties to eliminate the elective office of jury commissioner is again being challenged. In Pennsylvania State Association

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of Jury Commissioners v. Commonwealth, _ Pa. _, 64 A.3d 611 (2013) (Jury Commissioners II), the Pennsylvania Supreme Court held that Act 108 of 2011¹ violated the "single subject rule" of Article III, Section 3 of the Pennsylvania Constitution.

Following Jury Commissioners II, the Governor signed Act 4 of 2013² into law on May 6, 2013, again authorizing the governing bodies of second class A and third through eighth class counties to adopt a resolution abolishing the office of jury commissioner. Act 4 of 2013 amended Section 401 of The County Code,³ by addressing subsection (f), which provides:

(f) After review of the procedures in effect within the county to ensure that lists of potential jurors are a representative cross section of the community, the governing body of a county of the second class A or third through eighth class may adopt, by a majority vote, a resolution abolishing the office of jury commissioner. Upon approval of the resolution, the office of jury commissioner shall expire at the completion of the current jury commissioners' terms of office.

16 P.S. § 401(f).

The Pennsylvania State Association of Jury Commissioners, its president and vice president, and duly elected commissioners from various counties in the Commonwealth (collectively, Jury Commissioners), filed a complaint for declaratory and injunctive relief in our original jurisdiction, alleging

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that Act 4 of 2013 is unconstitutional in the following respects: (1) it usurps the powers of the judiciary conferred under Article V, Sections 1 and 10 of the Pennsylvania Constitution⁴ and, therefore, violates the separation of powers doctrine; (2) it unlawfully delegates to the governing bodies of counties the power to abolish the office of jury commissioner without guidance on how juries should be selected, in derogation of the powers conferred upon the judicial branch in Article V of the Pennsylvania Constitution; and (3) it violates the rights of candidates on the ballot for election to the post of jury commissioner in the 2013 Municipal Election conferred by the First Amendment to the United States Constitution. The named respondents are the Commonwealth of Pennsylvania, acting by and through the Attorney General, the Governor, and the Secretary of the Commonwealth (collectively, Executive Respondents). Also named as respondents are the President Pro Tempore of the Pennsylvania Senate and the Speaker of the Pennsylvania House of Representatives (collectively, Legislative Respondents). In addition, the County Commissioners Association of

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Pennsylvania (County Commissioners) has intervened to oppose the Jury Commissioners' constitutional challenges to Act 4 of 2013.

Whether Act 4 of 2013 can withstand the Jury Commissioners' constitutional challenges turns purely on issues of law.⁵ To expedite consideration of this matter, this Court directed the parties to file dispositive motions for summary relief pursuant to Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure. With briefing concluded, those motions are now before the Court for disposition.⁶

I

The Jury Commissioners, pointing to the statutory provisions in the Judicial Code, 42 Pa. C.S. §§ 101-9909, that provide a framework for the creation, operation, and functions of jury selection commissions, assert that Act 4 of 2013 violates Article V of the Pennsylvania Constitution and the separation of powers

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doctrine.⁷ The office of jury commissioner, they contend, has existed since 1868 and has evolved into a judicial office, as evidenced by its codification in the Judicial Code. They further note how the president judge of each county serves as the chairperson of the county's jury selection commission, though the commission itself operates by majority vote. The Jury Commissioners argue that the office of jury commissioner plays a key role in the judicial system, and that, therefore, Act 4 of 2013 violates the above-noted constitutional provisions and the separation of powers doctrine. Finally, they express concern over the lack of any provision in Act 4 of 2013 for a replacement mechanism for jury selection for counties where the office of jury commissioner is eliminated.

This Court, sitting en banc, considered and rejected these arguments in the context of a constitutional challenge to Act 108 of 2011. Pa. State Ass'n of Jury Comm'rs v. Commonwealth, 53 A.3d 109, 118-20 (Pa. Cmwlth. 2012) (en banc) (Jury Commissioners I), rev'd on other grounds, _ Pa. _, 64 A.3d 611 (2013). Although the Supreme Court in Jury Commissioners II reversed this Court's decision that Act 108 of 2011 was not unconstitutional, it did so without addressing this Court's analysis and rejection of the argument that Act 108 of 2011

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violated Article V of the Pennsylvania Constitution and the separation of powers doctrine. We continue to believe that the en banc Court's analysis of this issue in the prior case is correct. There, the Court opined:

The Jury Commissioners Association relies upon our Supreme Court's decisions in Wajert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980), and Snyder v. Unemployment Compensation Board of Review, 509 Pa. 438, 502 A.2d 1232 (1985). Both of these decisions stand for the proposition that the Pennsylvania Constitution provides the Supreme Court with sole authority for the general supervision of the courts. The Jury Commissioners Association also mentions this Court's decision in Olenginski v. County of Luzerne, 24 A.3d 1103 (Pa. Cmwlth. 2011), appeal denied, _ Pa. _, 42 A.3d 1061 (2012), in which we considered a challenge to legislation that made changes to a home rule ordinance resulting in the abolishment of that municipality's office of prothonotary. We concluded that the prothonotary of a common pleas court is a county officer, not a judicial officer, and that, therefore, a statute that gave county commissioners the authority to abolish that position did not violate Article V, Sections 1 or 10, or the separation of powers doctrine.
In Olenginski, we relied upon our Supreme Court's decision in In re Administrative Order No. 1-MD-2003, 594 Pa. 346, 936 A.2d 1 (2007), which involved the question of whether a prothonotary was a member of the judiciary or simply someone who performed ministerial functions derived from statute or rule of court. The Supreme Court concluded that prothonotaries have no power to act in a judicial capacity or to act as an attorney. On the basis of the Supreme Court's decision in In re Administrative Order, we rejected in Olenginski the appellant's argument that prothonotaries are part of the judiciary: "[N]owhere in the Pennsylvania Constitution is it stated that prothonotaries are part of the judiciary and neither of those sections provides that the judiciary supervises the office of the prothonotary." Olenginski, 24 A.3d at 1106. In summary, we surmised that the county's prothonotary was a county official. Based upon

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our holding in Olenginski, and based upon the similar lack in the Pennsylvania Constitution of any reference to a jury system, we reject the Jury Commissioners Association's argument.
There is no support in the law for the proposition that the elected

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