[100 MAP 2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
RICHARD A. SPRAGUE, HON. RONALD : Appeal from the Order of the
D. CASTILLE AND HON. STEPHEN : Commonwealth Court dated October 5,
ZAPPALA, SR., : 2016, at No. 517 M.D. 2016
:
Appellants :
:
:
v. :
:
:
PEDRO A. CORTES, SECRETARY OF :
THE COMMONWEALTH OF :
PENNSYLVANIA, IN HIS OFFICIAL :
CAPACITY, :
:
Appellee :
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE BAER DECIDED: October 25, 2016
Attorney Richard A. Sprague, the Honorable Ronald D. Castille, and the
Honorable Stephen A. Zappala (“Appellants”) appeal from the Commonwealth Court’s
order dated October 5, 2016, which granted summary relief in favor of Secretary Pedro
A. Cortés (“Secretary”) and dismissed Appellants’ petition for review. Appellants’
petition for review challenged the legality of the November 2016 general election ballot
question, as framed by the Secretary, which seeks to amend the mandatory judicial
retirement age set forth in Article V, Section 16(b) of the Pennsylvania Constitution.1
For the reasons that follow, we would affirm the Commonwealth Court.
1
Article V, Section 16(b) currently provides, in relevant part, that “Justices, judges
and justices of the peace shall be retired on the last day of the calendar year in which
they attain the age of 70 years.” PA. CONST. art. V, § 16(b).
The record establishes that on July 21, 2016, Appellants filed a complaint in the
Commonwealth Court challenging the Secretary’s phrasing of the ballot question.
Appellants sought an order declaring the ballot question unlawful, enjoining the
Secretary from placing the question on the November 2016 ballot, and directing the
Secretary to present the question to the electorate in a manner that advises voters that
the compulsory judicial retirement age would be raised from 70 to 75. Later that day,
Appellants filed in this Court an emergency application requesting that we assume
plenary jurisdiction over the action pursuant to 42 Pa.C.S. § 726. See Appellants’
Emergency Application for Extraordinary Relief at 11 (asserting that “[i]t is virtually
certain that any order issued by the Commonwealth Court in this matter would be
appealed to this Court. Consequently, [Appellants] respectfully submit that this Court
should assume immediate plenary jurisdiction over the matter in order to resolve it in
advance of the November 8, 2016 general election.”). This Court granted Appellants’
emergency application on July 27, 2016, and an expedited briefing schedule was
established.
As there were no factual disputes, the parties filed applications for summary
relief. On September 2, 2016, this Court entered a unanimous per curiam order, stating
that, because the Court was evenly divided as to which parties were entitled to
summary relief, we lacked authority to grant the requested relief and, thus, maintained
“the status quo of the matter prior to the filing of the lawsuit.” Sprague v. Cortés, No. 75
MAP 2016, per curiam order dated Sep. 2, 2016 (citing Creamer v. Twelve Common
Pleas Judges, 281 A.2d 57 (Pa. 1971) (holding that where this Court was evenly divided
in an original jurisdiction matter challenging gubernatorial appointments to judicial
vacancies, the appropriate disposition was to enter a per curiam order noting that the
requested relief could not be granted, thereby maintaining the status quo of the matter)).
2
This author filed an opinion in support of granting summary relief to the
Secretary, which was joined by Justices Donohue and Mundy. Additionally, an opinion
in support of granting summary relief to Appellants was filed by Justice Todd, and joined
by Justice Dougherty and, in part, by Justice Wecht. Justice Wecht also filed a
separate opinion in support of granting summary relief to Appellants. The opinions
themselves had no precedential effect, but were issued to explain the various views
regarding whether the ballot question was unlawful. The equal division among the
Court on the question of whether Appellants were entitled to declaratory and injunctive
relief was the basis for the Court’s ultimate judgment, maintaining the status quo, which
judgment was rendered unanimously by the concurrence of all Justices.
Appellants thereafter filed an application for reconsideration, requesting that we
remand the matter to the Commonwealth Court for that court to examine the exact
question that this Court already reviewed. On September 16, 2016, this Court entered a
per curiam order denying Appellants relief on the ground that they did not present a
compelling reason for reargument but, rather, sought a new avenue of relief. We
emphasized that the grant of Appellants’ request for extraordinary jurisdiction pursuant
to Section 726 of the Judicial Code removed the case from the lower court so that this
Court could impose a final order in the matter. See 42 Pa.C.S. § 726 (providing that
“the Supreme Court may, on its own motion or upon the petition of any party, in any
matter pending before any court or magisterial district judge of this Commonwealth
involving an issue of immediate public importance, assume plenary jurisdiction of such
matter at any stage thereof and enter a final order or otherwise cause right and justice
to be done”). This Court’s order denying reconsideration further distinguished the
deadlock on the Court, which related to whether Appellants had a clear right to the
requested relief, from the Court’s unanimous judgment in the matter, which maintained
3
the status quo prior to the filing of the litigation. We concluded that a remand for the
Commonwealth Court to consider the case anew would be unprecedented, unsupported
by legal authority, and outside the scope of Pa.R.A.P. 2543. Justice Todd filed a
dissenting opinion to the per curiam order, which was joined by Justice Wecht, in which
she opined that this Court should remand the matter to the Commonwealth Court for it
to address the legality of the ballot question’s phrasing.
On September 19, 2016, Appellants filed in the Commonwealth Court a second
petition for review in the nature of a complaint for declaratory and injunctive relief
against the Secretary, raising the identical challenge and seeking the identical relief as
they did in the original case before this Court. The Secretary sought dismissal of
Appellants’ petition, contending that: (1) the action was barred by the doctrines of res
judicata, laches, and “law of the case;” (2) relitigation of this Court’s September 2, 2016
order would violate Article V, Section 2 of the Pennsylvania Constitution; (3) the ballot
question is fair, accurate, and clearly apprises voters of the question to be voted on; (4)
the Secretary and Attorney General are entitled to act free of interference under the
political question doctrine; and (5) Appellants are not entitled to injunctive relief. Both
parties again filed applications for summary relief.
On October 5, 2016, in a single judge memorandum opinion authored by
President Judge Mary Hannah Leavitt, the Commonwealth Court granted the
Secretary’s application for summary relief, denied Appellants’ application for summary
relief, and dismissed Appellants’ petition for review, finding that the action was barred
by the doctrine of res judicata. The court did not address the Secretary’s additional
objections to the Commonwealth Court’s reconsideration of the ballot question
challenge. The court reasoned that four conditions must exist for res judicata to apply:
(1) identity of the issues; (2) identity of causes of action; (3) identity of persons and
4
parties to the action; and (4) identity of the quality or capacity of the parties suing or
sued. Commonwealth Court Slip Op. at 6 (citing Safeguard Mutual Insurance Company
v. Williams, 345 A.2d 664, 668 (Pa. 1975)). The Commonwealth Court found all of
these requisites satisfied as the two actions (i.e., the action adjudicated by this Court by
order dated September 2, 2016 and the action filed in Commonwealth Court on
September 19, 2016) shared identity of issues, causes of action, and parties. Finding
that this Court adjudicated the claims raised by the same parties in its September 2,
2016 per curiam order, the Commonwealth Court held that the doctrine of res judicata
precludes that court’s reconsideration of the same matter.
The Commonwealth Court rejected the contention that, because this Court was
divided regarding the legality of the ballot question, Appellants never received a final
adjudication on the merits of their claim, which is necessary for res judicata to apply.
Relying upon this Court’s September 16th order denying reconsideration, the
Commonwealth Court stated that “[t]he Supreme Court has held that [Appellants’]
issues and claim have been finally adjudicated. This [c]ourt may not revisit that
holding.” Commonwealth Court Slip Op. at 9.
On October 11, 2016, Appellants filed a notice of appeal in this Court, as well as
an emergency application seeking an expedited disposition without further briefing.
Ignoring that the Secretary objected to the Commonwealth Court’s consideration of
Appellants’ petition for review for a myriad of discrete reasons not addressed by the
Commonwealth Court due to its finding that the case was precluded by the doctrine of
res judicata, Appellants now request that we reverse the Commonwealth Court’s
dismissal of the petition based on res judicata and direct that court to adjudicate their
challenge to the ballot question, regardless of the validity of the Secretary’s alternative
objections.
5
Appellants’ entire premise on appeal mirrors the position taken by the dissenting
Justices in the reconsideration matter, i.e., because this Court was evenly divided as to
whether the ballot question suffers from a legal impediment, Appellants never received
a final judgment on the merits of their claim, and thus, their current action is not
precluded. Citing language from this Court’s September 2nd order indicating that we
lacked authority to grant the requested relief due to an inability to reach consensus,
Appellants submit that we likewise lacked authority to adjudicate the merits of their
claim, which is a prerequisite to the application of res judicata. They further rely on
distinguishable case law suggesting that the legal effect of a deadlock in a jurisdiction’s
highest appellate court is the same as if no appeal had been taken. From this tenet,
Appellants conclude that this Court’s September 2nd order maintaining the status quo is
a nullity, having no legal effect whatsoever. They argue that the facts presented should
be viewed as though this Court never granted their request for extraordinary jurisdiction,
leaving the matter ripe for adjudication by the Commonwealth Court.
In his answer to Appellants’ emergency application, the Secretary joins
Appellants’ request that this matter be resolved as expeditiously as possible, without
further briefing, and attaches his brief filed in Commonwealth Court. He contends that
we should affirm summarily the well-reasoned decision below, which held that this
Court’s unanimous September 2nd per curiam order maintaining the status quo
effectively denied the relief Appellants sought and constitutes a final adjudication on the
merits for purposes of res judicata, rather than the absence of a decision as Appellants
suggest. The Secretary asserts that the legal effect of an evenly divided judicial body in
Pennsylvania is that the requested relief is denied, both implicitly and as a matter of law.
Accordingly, he submits, the Commonwealth Court may not revisit this Court’s
determination, to which the parties are bound.
6
In addition to claims alleging preclusion of reconsideration of the ballot question
issue based upon the doctrines of laches, “law of the case,” and political question, the
Secretary further contends that Appellants attempt to have the Commonwealth Court
usurp this Court’s “supreme judicial power of the Commonwealth” offends the
constitutionally established structure of the judiciary as the September 2nd order
declined to grant Appellants the very relief they subsequently sought in the
Commonwealth Court. See PA. CONST. art. V, § 2(a). He argues that what Appellants
essentially seek is for the Commonwealth Court to be this Court’s tiebreaker in
contravention of the structure of the unified judicial system. Accordingly, he requests
that we affirm the order of the Commonwealth Court dismissing Appellants’ petition for
review.
We agree with the Secretary that the Commonwealth Court was correct in
holding that this Court’s September 2nd order maintaining the status quo is a final order
effectively declining Appellants’ requested relief and, thus, constitutes a final judgment
on the merits for purposes of res judicata. As Justice Wecht points out in his Opinion in
Support of Reversal, “[i]t is axiomatic that in order for . . . res judicata to apply, the
issue or issues must have been actually litigated and determined by a valid and final
judgment.” Opinion in Support of Reversal, Wecht, J., at 3 (quoting County of Berks ex
rel. Baldwin v. Pennsylvania Labor Relations Bd., 678 A.2d 355, 359 (Pa. 1996)).
Here, the various opinions attached to this Court’s September 2nd unanimous per
curiam order clearly establish that Appellants actually litigated in this Court the issue of
whether the ballot question is legal and whether they are entitled to declaratory and
injunctive relief. Because this Court evenly divided as to the legality of the ballot
question, the Court’s unanimous per curiam order determined that Appellants were not
entitled to relief and that the status quo, prior to the filing of the litigation, must be
7
maintained. Thus, the order constitutes a valid and final judgment, as it disposed of all
claims and of all parties. See Pa.R.A.P. 341(b)(1) (defining a final order as an order
disposing of all claims and of all parties).
Respectfully, Appellants and the Justices in support of reversal are misguided
when they suggest that there was no final judgment on the merits because this Court
did not by majority decision definitively answer whether the ballot question, as submitted
by the Secretary, was illegal.
While factually distinguishable and not dispositive, we find persuasive the United
States Supreme Court’s sentiment, observed more than 100 years ago, that:
[A court’s judgment] is not the less expressive of the decision of the court
upon the merits of the petitioner’s claim in the case because it is rendered
upon an equal division of opinion among the judges. The fact of division
does not impair the conclusive force of the judgment, though it may
prevent the decision from being authority in other cases upon the question
involved. The judgment is that of the entire court, and is as binding in
every respect as if rendered upon the concurrence of all the judges.
Hartman v. Greenhow, 102 U.S. 672, 675-76 (1880) (citations omitted). Stated
succinctly, that the parties to this appeal do not have a definitive answer to the legal
inquiry of whether the ballot question is invalid most certainly does not mean that the
issue was not litigated and finally disposed of by this Court’s September 2nd unanimous
per curiam order.
The following illustrates the point. When this Court evenly divides on a legal
issue presented in an appeal, we enter a final per curiam order affirming the lower
court’s judgment - an action which maintains the status quo of the matter prior to the
filing of the appeal in this Court. See, e.g., Gov’t Employees Ins. Co. v. Ayers, 18 A.3d
1093 (Pa. 2011). Similarly, if the Court accepts extraordinary jurisdiction over a case
where no judgment has been entered by a lower tribunal and we deadlock, then we
8
enter a final per curiam order that maintains the status quo of the matter prior to the
filing of the lawsuit, as occurred in this case. See Creamer, supra. In both situations,
the moving party failed to convince a majority of the Court to take affirmative action.
Because the Court in this circumstance cannot grant relief, relief is denied by operation
of law, and the status quo is maintained, which in this case results in the constitutional
amendment as advertised remaining on the November 8, 2016 general election ballot.
It is indisputable that any opinion attached to these per curiam orders has no
precedential value; it is equally indisputable that the orders are nonetheless binding,
final orders. See Commonwealth v. Bomar, 826 A.2d 831, 843 n.13 (Pa. 2003) (“While
the ultimate order of a plurality opinion, i.e. an affirmance or reversal, is binding on the
parties in that particular case, legal conclusions and/or reasoning employed by a
plurality certainly do not constitute binding authority.”) (quoting Interest of O.A., 717
A.2d 490, 496 n. 4 (Pa. 1998) (opinion announcing judgment of the court)); see also
Pa.R.A.P. 341(b)(1) (defining a final order as “any order that . . . disposes of all claims
and of all parties”). Any purported distinction between the finality of orders entered as a
result of a divided decision of this Court in its appellate jurisdiction versus orders
entered as a result of a deadlock in an original jurisdiction matter constitutes the
proverbial “red herring.” In both scenarios, a final judgment is entered maintaining the
status quo and precluding further litigation among the parties to that action.
Significantly, the Commonwealth Court cogently noted that this conclusion derives from
the express language set forth in this Court’s September 16th order denying
reconsideration, which a majority of this Court joined. See Commonwealth Court Slip
Op. at 9 (“The Supreme Court has held that [Appellants’] issues and claim have been
finally adjudicated. This [c]ourt may not revisit that holding.”).
9
Our proposed disposition is not contrary to County of Berks ex rel. Baldwin v.
Pennsylvania Labor Relations Bd., 678 A.2d 355 (Pa. 1996), upon which the Justices in
support of reversal rely. County of Berks held that an order of this Court,
unaccompanied by an opinion, which denied a party’s request for extraordinary relief did
not constitute an adjudication on the merits for purposes of res judicata. Id. at 359
(stating that “we now hold that where this [C]ourt has issued an order without opinion
denying extraordinary relief, that order alone is insufficient to establish that there has
been a full and final adjudication of the claims raised”). Conversely, here, this Court
issued an order granting Appellants’ emergency application for extraordinary relief, the
parties litigated the issues through briefing, the Court issued multiple opinions on the
legal issue presented, and this Court entered a final order which disposed of all the
claims in the case and resulted in the denial of relief to Appellants. It cannot be ignored
that this Court’s grant of extraordinary relief pursuant to 42 Pa.C.S. § 726 assumes
jurisdiction over the case so that we may enter a final order. An order denying
extraordinary jurisdiction, on the other hand, merely refuses to allow invocation of our
jurisdiction to hear the case at that point in the proceeding. Thus, County of Berks is
not dispositive for we cannot equate our grant of extraordinary jurisdiction in this case
and the extensive litigation that occurred thereafter with a single order denying
extraordinary relief.
Further, contrary to the position of the Justices in support of reversal, Appellants
are not denied any rights by this proposed disposition. Justice Wecht’s assertion that
“today’s reappearing deadlock denies Appellants their right to a merits decision by the
courts of this Commonwealth,” Opinion in Support of Reversal, Wecht, J., at 4,
completely ignores what occurred in this case. Appellants were given every opportunity
to have the Commonwealth Court adjudicate the substance of their legal challenge to
10
the ballot question, but Appellants voluntarily and purposefully waived such opportunity
by seeking this Court’s extraordinary jurisdiction pursuant to Section 726 of the Judicial
Code minutes after their Commonwealth Court action was filed, thereby forfeiting their
right to appellate review of an original jurisdiction decision. The result Appellants
received, i.e., a final judgment from this Court and no substantive review by the
Commonwealth Court, was the direct result of their own tactical litigation plan.
Further, both Appellants and the Justices in support of reversal disregard
cavalierly this Court’s Article V, Section 2(a)’s supremacy power. Indeed, there simply
can be no question that Article V, Section 2(a) vests this Court with the supreme judicial
power of the Commonwealth. Appellants provide no authority, as none exists, that
would allow them to relitigate their claims in a lower tribunal after this Court had granted
the extraordinary relief they sought concerning jurisdiction and then proceeded to enter
a final order in the matter.
In her Opinion in Support of Reversal, Justice Todd opines that “[w]ith today’s
inaction by this Court, it appears that the present parties, and more importantly the
public, will go to the polls on November 8 without receiving an answer to that
fundamental question [as to whether the ballot language satisfies constitutional
standards for clarity].” Opinion in Support of Reversal, Todd, J., at 9. Regardless of the
significance of the underlying challenge to the ballot question at issue, this Court cannot
create remedies where the law does not so provide.
This Court also should not be influenced by newspaper editorials or polls that are
not part of the record before us and are not in any way pertinent to the narrow legal
issue presented regarding the preclusive effect of this Court’s September 2nd order.
See Opinion In Support of Reversal, Wecht, J., at 4-5 (citing a recent poll by Franklin &
Marshall College, and various published editorials). This Court should not be
11
concerned with matters of public opinion, but only matters of legal significance to issues
that are properly presented by the parties. References to commentary regarding
whether the proposed constitutional amendment should, in fact, be passed have no
place in appellate court opinions deciding a discrete legal issue. These practices are
misguided at best and dangerous at worst.
It is for these reasons that we would affirm the order of the Commonwealth
Court.
Chief Justice Saylor did not participate in the consideration or decision of this
matter.
Justices Donohue and Mundy join this opinion.
12
Sprague, R., Aplts v. Cortes, P.
Combined Opinion