SO. NEWTON ELECTORS v. SO. NEWTON SUP'R

• Decision Date: 17 December 2003
• Citation: 838 A.2d 643,575 Pa. 670
• Parties: SOUTH NEWTON TOWNSHIP ELECTORS, Appellants v. SOUTH NEWTON TOWNSHIP SUPERVISOR, Ronald BOUCH, Appellee.
• Court: Pennsylvania Supreme Court

838 A.2d 643

575 Pa. 670

SOUTH NEWTON TOWNSHIP ELECTORS, Appellants v. SOUTH NEWTON TOWNSHIP SUPERVISOR, Ronald BOUCH, Appellee.

Supreme Court of Pennsylvania.

Argued September 8, 2003.

Decided December 17, 2003.

Jason Kutulakis, for South Newton Tp. Electors, Appellants.

Patrick F. Lauer, Matthew J. Eshelman, Marlin L. Markley, Jr., Camp Hill, for South Newton Tp. Supervisor, Ronald Bouch, Appellee.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR and LAMB, JJ.

OPINION

Chief Justice CAPPY.

In this matter, we are asked to address the constitutionality of Section 503 of the Second Class Township Code, 53 P.S. § 65503 ("Section 503"), which provides for the recall of a township supervisor. The trial court determined that this statute is unconstitutional as it conflicts with Article VI, § 7 of the Pennsylvania Constitution, which provides the exclusive method of removal for elected officials. For the reasons herein, we affirm the order of the trial court.

Appellants are residents of South Newton Township in Cumberland County, a Second Class Township. On April 19, 2002, Appellants filed a pro se complaint seeking to remove Appellee Ronald Bouch from his position as Township Supervisor for the alleged dereliction of his duties, pursuant to Section 503:

§ 65503. Removal for failure to perform duties

If any township officer fails to perform the duties of the office, the court of common pleas upon complaint in writing by five percent of the electors of the township may issue a rule upon the officer to show cause why the office should not be declared vacant. The officer shall respond to the rule within thirty days from its date of issue. Upon hearing, the court may declare the office vacant and require the vacancy to be filled under section 407 [53 P.S. § 65407].

53 P.S. § 65503.

A rule was issued and Appellee responded in the form of preliminary objections. Counsel entered an appearance for Appellants and filed an amended complaint.¹ The trial court again issued a rule, and Appellee filed preliminary objections in the nature of a demurrer. Appellee argued that Article VI, § 7 of the Pennsylvania Constitution set forth the exclusive methods of removing an elected official such as himself from office; pursuant to that provision, removal could occur only upon the vote of two-thirds of the Senate, or upon conviction of misbehavior in office or of any infamous crimes.² Appellants failed to allege that any of these events had occurred.

A three-judge panel of the Court of Common Pleas of Cumberland County sustained Appellee's preliminary objections and dismissed the action. The trial court agreed with Appellee that Section 503 conflicted with Article VI, § 7, and thus the Township Code provision was unconstitutional. The trial court relied on this court's decision in In re Petition to Recall Reese, 542 Pa. 114, 665 A.2d 1162 (1995), wherein this court held that Article VI, § 7 "indisputably applies to all elected officers, and sets forth in unambiguous language the exclusive method ... of removing such elected officers." 665 A.2d at 1167 (citations omitted) (original emphasis). A direct appeal to this court followed. 42 Pa. C.S. § 722(7).

The question presented is one of constitutionality of a legislative enactment, specifically, the extent to which the removal provision in Article VI, § 7 is exclusive and invalidates statutory pronouncements governing the removal of elected civil officers. The standards governing our review are clear. Legislative enactments are presumed to be constitutional, and this presumption can be rebutted only if the statute clearly, plainly and palpably violates the Pennsylvania Constitution. Reese, 665 A.2d at 1164 (citations omitted). Because this question involves a question of law, our review is de novo. Buffalo Township v. Jones 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002).

In the instant case, the trial court relied on Reese, and we too begin our discussion with that case. In Reese, the petitioners sought to remove the mayor of Kingston under the recall provisions of the Kingston Home Rule Charter, which allowed for the removal of an elected municipal officer via a petition for recall. The trial court held that the recall provisions were unconstitutional, as they were contrary to Article VI, § 7. This court affirmed.

In so doing, we addressed prior rationales espoused by this court for upholding statutory removal provisions. One of the seminal cases was In re Supervisors of Milford Township, Somerset County, 291 Pa. 46, 139 A. 623 (1927), which involved a petition to the court of quarter sessions to have certain township supervisors' offices declared vacant due to alleged dereliction of duty by the office holders. The petitioners sought removal pursuant to section 192 of the General Township Act of July 14, 1917, P.L. 840, § 192 (a predecessor to the removal provision at issue, 53 P.S. § 65503). This court construed the statute as creating the office of township supervisor with a "conditional" six-year term of office, the condition being that the supervisor could not refuse or neglect to perform his duties. We determined that the authority to make the term of office a conditional one was implied in a constitutional provision (former Art. XII, § 1, presently Art. VI, § 1), which indicated that officers who were not provided for in the constitution "shall be elected or appointed as may be directed by law". Recognizing that when a term of office was subject to the legislature's control, it could abolish the office and oust officers during their term, we reasoned that an act providing for removal following a judicial determination of a breach of the constitutional "condition that they behave themselves well while in office" (Art. VI, § 4) should also be permissible. We thus concluded that Article VI, § 4 (present Art. VI, § 7)³ did not apply "where the Legislature, having the right to fix the length of a term of office, has made it determinable by judicial proceedings, on other contingencies other than the mere passage of time." 139 A. at 625. Accordingly, we held that the statutory removal provision was constitutionally permissible.

After having reviewed Milford Township, this court in Reese rejected its rationale relating to "conditional officers" and overruled that case. Instead, we reasoned that Article VI, § 7 applied "to all elected officers" (emphasis in original). Accordingly, we held that the method of removal provided for in the Kingston Home Rule Charter was specifically denied by the Pennsylvania Constitution.

Appellants advance several arguments as to why Reese is not controlling. Appellants contend that Reese is distinguishable since it involved the recall provisions in the Kingston Home Rule Charter, which did not provide for due process in the removal of municipal officers. Appellants argue that Section 503 was enacted to complement then-Article VI, § 4 (now Art. VI, § 7), to afford a township supervisor the same due process rights afforded to all civil officers under Article VI, § 7.⁴ Appellants point out that Section 503 provides more due process rights that a township supervisor would be entitled to under Article VI, § 7. We do not agree with Appellants' focus. The level of due process afforded to a civil officer under the statute or the statute's purpose is not the pertinent concern. The issue is whether the provisions of Section 503 conflict with the Pennsylvania Constitution.

Appellants further maintain that Article VI, § 7 does not grant township officers a constitutional right to only be removed by the Governor and Senate; rather, the only right afforded is a right to due process before removal. Again, we cannot agree. Article VI, § 7 confirms both that officers are entitled to "due notice and full hearing", and sets forth the permissible process of removing such officers.

Appellants next claim that the General Assembly has not indicated its interest in repealing Section 503. Appellants note that twenty-three days after this court's decision in Reese (holding that Art. VI, § 7 provided the exclusive method of removing elected officers), the General Assembly deleted and reenacted several provisions of the Second Class Township Code; Section 503 was not deleted, but was reenacted and amended. Nor did the Legislature repeal Section 503 when Article VI, § 4 was amended and renumbered as Article VI, § 7. Even assuming that the General Assembly wanted to provide for an alternative means to remove township supervisors, those alternative means cannot conflict with the provisions of Article VI, § 7. The General Assembly's failure to repeal an unconstitutional statute does not make that statute constitutionally permissible.⁵

Appellants further assert that the General Assembly, having created the office of township supervisor (53 P.S. § 65601), may also provide for the manner in which that officer is to be removed. Yet this rationale, which was adopted in Milford Township, was rejected by the later decision in Reese.

Finally, Appellants argue that public policy supports a finding of constitutionality. They contend that a contrary result will allow township electors to burden the Governor and Senate with affairs that are not of statewide importance, which would waste government resources. Moreover, they assert that deeming Section 503 to be unconstitutional will leave township electors without a remedy—apart from the four-year election cycle—because Article VI, § 7 is impractical, does not provide an unambiguous procedure for removing civil officers, and essentially is not accessible to township electors. We disagree. The fact that Article VI, § 7 does not explicitly spell out the manner in which Article VI, § 7 is to be invoked does not make the method of removal unclear. Moreover, even if we agreed that the constitutional removal method is not as practical as the one provided for in Section 503, we cannot disregard a controlling constitutional...