Sweeney v. Tucker
| Decision Date | 08 July 1977 |
| Citation | 375 A.2d 698,473 Pa. 493 |
| Parties | Leonard E. SWEENEY, Vincent S. Mazza and James P. Heffley, Appellants, v. C. Delores TUCKER, Secretary of the Commonwealth, Grace M. Sloan, Treasurer of the Commonwealth, Herbert Fineman, Speaker of the House, K. Leroy Irvis, Majority Leader of the House, Samuel Rappaport, Chairman of the Ethics Committee, and Jean Francis, House Comptroller. |
| Court | Pennsylvania Supreme Court |
Thomas A. Livingston, Dennis J. Clark, Livingston, Miller, O'Malley & Clark, Pittsburgh, for appellants.
Russell A. Davis, Harrisburg, for appellees.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
On August 27, 1975, the Pennsylvania House of Representatives met in special session and, by a vote of 176 to 1, expelled Leonard A. Sweeney from membership in the House. 1 The Speaker of the House then declared Sweeney's office vacant and issued a writ calling for a special election on November 4, 1975. 2
On September 24, 1975, Sweeney and two of his former constituents (appellants) filed a complaint in equity in the Commonwealth Court, alleging that the House's action violated Sweeney's constitutional right to his House seat, his right to payment of salary and his former constituents' right to be represented in the House. Named as defendants were C. Delores Tucker, Secretary of the Commonwealth; Grace M. Sloan, Treasurer of the Commonwealth; Herbert Fineman, Speaker of the House; K. Leroy Irvis, Majority Leader of the House; Samuel Rappaport, Chairman of the House Ethics Committee; and Jean Francis, Comptroller of the House (appellees). Appellants requested injunctive relief ordering Sweeney's reinstatement with back pay and barring the special election called to fill his seat. 3 Appellees filed preliminary objections in the nature of a demurrer, which were argued before the Commonwealth Court on October 29, 1975. 4 On January 14, 1976, the Commonwealth Court sustained appellees' preliminary objections and dismissed the complaint. Sweeney v. Tucker, 22 Pa.Cmwlth. 642, 351 A.2d 308 (1976). We affirm. 5
On November 5, 1974, appellant Sweeney was elected to represent the Seventeenth Legislative District in the Pennsylvania House of Representatives. He took the oath of office and was seated on January 7, 1975. Three days later, he was indicted by a grand jury of the United States District Court for the Western District of Pennsylvania on one count of conspiracy to commit mail fraud and five counts of mail fraud. 6 On July 30, 1975, a jury found Sweeney guilty of three counts of mail fraud. The court imposed concurrent sentences of three years imprisonment on each count and fined Sweeney $3,000.00. On August 5, 1975, Sweeney filed a timely appeal from judgment of sentence in the United States Court of Appeals for the Third Circuit. 7
On August 18, 1975, the House Ethics Committee notified Sweeney by telegram that it would meet on August 25, 1975 to "discuss (his) future status" as a House member and invited him to attend alone or with counsel. Sweeney's counsel responded in a telegram, demanding compliance with the fifteen day notice provision of House Rule 47. 8
The House Ethics Committee met on August 25, 1975 with neither Sweeney nor his counsel in attendance. The Committee concluded that its jurisdiction was limited to violations of the Legislative Code of Ethics and made no recommendation to the House concerning Sweeney's status. 9
On August 27, 1975, the House met in special session to consider the following resolution:
Again, neither Sweeney nor his counsel appeared. Upon the request of Representative Rappaport, Chairman of the House Ethics Committee, 10 the House inserted in the record copies of Sweeney's indictment, judgment of conviction and notes of testimony of his sentencing. After debate, the House adopted the Resolution expelling Sweeney.
At the time of oral argument before this Court, Sweeney's term of office had already expired. 11 Therefore, appellants' prayer for an injunction ordering Sweeney's reinstatement as a member of the House of Representatives is moot. See Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966); Commonwealth ex rel. McCormick v. Swaney, 313 Pa. 565, 169 A. 883 (1934) (per curiam); Commonwealth ex rel. v. Floyd, 274 Pa. 172, 117 A. 778 (1922) (per curiam). In the absence of special circumstances, this Court will not consider such questions. Meyer v. Strouse, supra. See generally Colonial Gardens Nursing Home, Inc. v. Bachman, --- Pa. ---, 373 A.2d 748 (filed June 3, 1977); Commonwealth for and on Behalf of its Citizens and Residents v. Duquesne Light Co., 469 Pa. 415, 366 A.2d 242 (1976); Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974); Excellent Laundry Co. v. Szekeres, 382 Pa. 23, 114 A.2d 176 (1955). Similarly, appellants' requests that the special election of November 4, 1975 be enjoined and declared null and void are moot. Appellants' action against appellees Tucker, Fineman, Irvis and Rappaport is based solely on the claims which are now moot. Therefore, we affirm the Commonwealth Court's order dismissing the complaint as to appellees Tucker, Fineman, Irvis and Rappaport. 12
It does not follow, however, that the entire case is moot. "(A) case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969), citing E. Borchard, Declaratory Judgments 35-37 (2d ed. 1941). Even though some issues in a case have become moot, a court will consider the remaining "live" issues. Powell v. McCormack, supra; Keystone Building Corp. v. Lincoln Savings and Loan Association, 439 Pa. 444, 266 A.2d 648 (1970). Since Sweeney has a continuing interest in back pay for the period he was deprived of office, we conclude that the controversy remains a live one. Powell v. McCormack, supra; Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). Sweeney's back pay claim against House Comptroller Francis is not moot. 13
House Comptroller Francis asserts that the Speech or Debate Clause of the Pennsylvania Constitution, Pa. Const. art. II, § 15, is an absolute bar to this suit. In the alternative, the House Comptroller contends that this action is not justiciable because the Pennsylvania Constitution commits the power to expel a member exclusively to the House of Representatives. We disagree with both contentions and find it necessary to reach the merits of Sweeney's claim that the House deprived him of his rights under the United States Constitution. For convenience, we shall discuss these issues in the above order.
Pa.Const. art. II, § 15 provides:
"The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place." (emphasis added).
This Court recently observed that the text of the Pennsylvania Speech or Debate Clause is essentially the same as its counterpart in the federal Constitution, U.S.Const. art. I, § 6. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977). Accordingly, in order to determine whether Sweeney's action against the House Comptroller is barred by Pa.Const. art. II, § 15, we seek guidance from the federal cases which clarify the policies underlying the federal Speech or Debate Clause. 14
Although the Speech or Debate Clause of the United States Constitution has its roots in English history, 15 "it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government." United States v. Brewster, 408 U.S. 501, 508, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). The Supreme Court has stated that the Clause is designed to protect "the independence and integrity of the legislature." United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 754, 15 L.Ed.2d 681 (1966); accord, Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 2024, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. at 507-08, 92 S.Ct. at 2535; Tenney v. Brandhove, 341 U.S. 367, 373-74, 71 S.Ct. 783, 786-87, 95 L.Ed. 1019 (1951). The legislative immunity created by the Clause "insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation." Powell v. McCormack, 395 U.S. at 503, 89 S.Ct. at 1954. The Speech or Debate Clause has been read broadly in order to effectuate its purposes. See Eastland v. United...
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