Robinson v. Shapp

• Decision Date: 30 January 1976
• Citation: 350 A.2d 464,23 Pa.Cmwlth. 153
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1346 Richard ROBINSON, Individually and on behalf of all persons similarly situate, Plaintiff, v. Milton J. SHAPP, Individually and as Governor of the Commonwealth of Pennsylvania, Defendant.
• Court: Pennsylvania Commonwealth Court

Page 464

350 A.2d 464

23 Pa.Cmwlth. 153, 16 Fair Empl.Prac.Cas. (BNA) 1346

Richard ROBINSON, Individually and on behalf of all persons similarly situate, Plaintiff, v. Milton J. SHAPP, Individually and as Governor of the Commonwealth of Pennsylvania, Defendant.

Commonwealth Court of Pennsylvania.

Argued Jan. 5, 1976.

Decided Jan. 30, 1976.

[23 Pa.Cmwlth. 154] Kathleen Herzog Larkin, Dept. of Justice, Harrisburg, for defendant.

Michael Hahalyak, Pittsburgh, for plaintiff.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

WILKINSON, Judge.

This action is before us in our original jurisdiction of preliminary objections filed by the defendant to the plaintiff's complaint in equity. The complaint seeks injunctive relief to set aside the Governor's Executive Order No. 1975--5. The order is entitled 'Expansion of the Commitment Toward Equal Rights' and provides:

'In furtherance of my commitment to provide leadership in the effort to obtain equal rights for all persons in Pennsylvania, I am committing this administration to work towards ending discrimination against persons solely because of their affectional or sexual preference.

'Terry Dellmuth, my Special Assistant for Human Services, and Barry Kohn, Director, Community Advocate Unit, Pennsylvania Department of Justice, are hereby assigned to review and monitor this effort. They will work with state agencies and private groups to further define the problem and make recommendations for further action.

'State departments and agencies are instructed to fully cooperate with them in the effort to end this type of discrimination.'

The prayer for relief in the complaint is:

'A. That the said executive order be set aside;

'B. That the Governor be enjoined from enforcing the said order;

'C. Such other and further relief as will be appropriate under the circumstances.'

The defendant raises a number of preliminary objections. However, we need only consider the objection raising the question of justiciability. The disposition of this question is dispositive of the case. This is stated in the preliminary objections as follows:

'1. This Honorable Court lacks jurisdiction to adjudicate the propriety of an Executive Order which is a broad statement of public or political policy and thus within the sole discretion of the elected Executive.

'2. The doctrines of separation of powers, executive sovereignty and comity with the coordinate branches of government preclude this Honorable Court from exercising its jurisdiction to inquire into the propriety of a discretionary decision of the executive branch of government.

'WHEREFORE, defendant requests that this Honorable Court decline to exercise its jurisdiction and that Plaintiff's Complaint be dismissed.'

We sustain this preliminary objection. Only recently, this Court decided the case of Sweeney v. Tucker, --- Pa.Cmwlth ---, 351 A.2d 308 (filed January 14, 1976), in which we held that the expulsion of a member of the Pennsylvania House of Representatives was within the exclusive power of the House of Representatives, and that its propriety was not justiciable. In that case, Judge Rogers, speaking for the Court, stated:

'Nothing is more important to the continued health of our American constitutional shstem than that each of the three branches of our Federal and State governments refrain from intermeddling or interfering in matters committed by the people to other branches. It would seem that the judiciary, which alone of the branches has claimed the power to declare unlawful and to nullify actions of the other branches, should be particularly circumspect to avoid such interference.

When the desirability of avoiding judicial action in a given matter has preponderated, the courts have professed adherence to a proclaimed principle that the judiciary will not decide political questions--that political questions are not justiciable. The subject is fully and definitively explored by Mr. Justice Brennan in Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).'

The Governor has issued the Executive Order quoted above as the policy of his administration. The complaint does not allege that the issuing of the policy is against the Crimes Code. It is not illegal to have an 'affectional or sexual preference'. If the affectional or sexual preference leads one into deviate sexual intercourse in violation of the criminal laws of this Commonwealth, that individual continues to be subject to the penalties of the law. However, the declaration that that individual, with such a deviate affectional or sexual preference that he or she may have had in the past or may in the future commit a criminal act, shall not be discriminated against by state departments or agencies is merely a statement of policy, wise or otherwise.

This is not to say, nor does the defendant argue, that the Governor is above the law. Indeed, in his brief, the defendant candidly and accurately states:

'The Governor is subject only to very specific and well defined limitations. He is not above the law. He is subject to 'arrest, prosecution and punishment if he violates the criminal statutes'. Dauphin Co. Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 296, 2 A.2d 783, 788 (1938). In 'extreme cases', where the Governor is alleged to have unconstitutionally divested property rights or disposed of public property, he is subject to judicial process. Harding v. Pinchot, 306 Pa. 139, 145, 159 A. 16, 18 (1932). (There is no such allegation here.) Should he co...