[J-82-2016] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
WILLIAM PENN SCHOOL DISTRICT; : No. 46 MAP 2015
PANTHER VALLEY SCHOOL DISTRICT; :
THE SCHOOL DISTRICT OF : Appeal from the Order of the
LANCASTER; GREATER JOHNSTOWN : Commonwealth Court entered on April
SCHOOL DISTRICT; WILKES-BARRE : 21, 2015 at No. 587 MD 2014.
AREA SCHOOL DISTRICT; :
SHENANDOAH VALLEY SCHOOL : ARGUED: September 13, 2016
DISTRICT; JAMELLA AND BRYANT :
MILLER, PARENTS OF K.M., A MINOR; :
SHEILA ARMSTRONG, PARENT OF :
S.A., MINOR; TYESHA STRICKLAND, :
PARENT OF E.T., MINOR; ANGEL :
MARTINEZ, PARENT OF A.M., MINOR; :
BARBARA NEMETH, PARENT OF C.M., :
MINOR; TRACEY HUGHES, PARENT OF :
P.M.H., MINOR; PENNSYLVANIA :
ASSOCIATION OF RURAL AND SMALL :
SCHOOLS; AND THE NATIONAL :
ASSOCIATION FOR THE :
ADVANCEMENT OF COLORED :
PEOPLE-PENNSYLVANIA STATE :
CONFERENCE, :
:
Appellants :
:
:
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
EDUCATION; JOSEPH B. SCARNATI III, :
IN HIS OFFICIAL CAPACITY AS :
PRESIDENT PRO-TEMPORE OF THE :
PENNSYLVANIA SENATE; MICHAEL C. :
TURZAI, IN HIS OFFICIAL CAPACITY AS :
THE SPEAKER OF THE PENNSYLVANIA :
HOUSE OF REPRESENTATIVES; TOM :
WOLF IN HIS OFFICIAL CAPACITY AS :
THE GOVERNOR OF THE :
COMMONWEALTH OF PENNSYLVANIA; :
PENNSYLVANIA STATE BOARD OF :
EDUCATION; AND PEDRO A. RIVERA, :
IN HIS OFFICIAL CAPACITY AS THE :
SECRETARY OF EDUCATION, :
:
Appellees :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: September 28, 2017
I join the majority opinion in concluding the matter before us is justiciable under
the Baker1 factor analysis. I write separately to express my view that any time a party
raises a colorable claim that a right guaranteed to the citizens of this Commonwealth by
the Pennsylvania Constitution is being violated, such a claim always should be
justiciable and analysis under the Baker factors is irrelevant because judicial restraint
serves no purpose when constitutional rights are threatened or abridged. See Hugo L.
Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 870 (1960) (“[T]he judiciary was made
independent because it has…the primary responsibility and duty of giving force and
effect to constitutional liberties and limitations upon the executive and legislative
branches.”).
The political question doctrine implicates the prudential concerns of judicial
restraint. Robinson Twp. v Commonwealth, 83 A.3d 901, 917 (Pa. 2013) (questions of
justiciability involve “prudential concerns implicating courts’ self-imposed limitations”).
See also L. Tribe, American Constitutional Law 79 (1978) (“Thus the political question
doctrine, like other justiciability doctrines, at bottom reflects the mixture of constitutional
interpretation and judicial discretion….”). The question of justiciability under the political
question doctrine arises from a concern regarding the maintenance of the separation of
1
Baker v. Carr, 369 U.S. 186 (1962).
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powers. Consumer Party of Pa. v. Commonwealth, 507 A.2d 323, 332 (Pa. 1986)
abrogated on other grounds by Pennsylvanians Against Gambling Expansion v.
Commonwealth, 877 A.2d 383 (Pa. 2005) (“To preserve the delicate balance critical to a
proper functioning of a tripartite system of government, this Court has exercised
restraint to avoid an intrusion upon the prerogatives of a sister branch of government.”).
A court should refrain from resolving a dispute where doing so would involve the judicial
branch in carrying out the functions properly delegated to the legislative or executive
branches. Thornburgh v. Lewis, 470 A.2d 952, 956 (Pa. 1983); see also Consumer
Party, 507 A.2d at 333 (“it is appropriate to give due deference to a co-equal branch of
government as long as it is functioning within constitutional constraints…”).
Nevertheless, the resolution of disputes involving the interpretation of law is our
constitutional duty. Robinson Twp., 83 A.3d at 928 (courts must fulfill role of enforcing
constitutional limitations); Thornburgh, 470 A.2d at 956 (it is the courts’ constitutional
duty to resolve disputes involving interpretation of the law). Further, it is the duty of the
judicial branch to ensure that any constitutional right is not “impaired or destroyed by
legislation.” Smyth v. Ames, 169 U.S. 466, 527-28 (1898); Zemprelli v. Daniels, 436
A.2d 1165, 1169 (Pa. 1981) (“[I]t is the duty of the courts to invalidate legislative action
repugnant to the constitution.”). It would undermine our constitutionally mandated
responsibilities to deliberately ignore a clear constitutional violation out of deference to a
co-equal branch of government. Consumer Party, 507 A.2d at 333.
Appellants have challenged the current legislative framework for the financing
and funding of the Commonwealth’s public school system as constitutionally deficient
on the basis that (1) the public school funding system does not meet the constitutionally
mandated requirement to maintain a thorough and efficient system of public education
as expressed in the Education Clause found in Article III, Section 14 of the
[J-82-2016] [MO: Wecht, J.] - 3
Pennsylvania Constitution,2 and (2) the current funding system violates the right to
equal protection guaranteed by Article III, Section 32 of the Pennsylvania Constitution
(Equal Protection Clause).3
We have not been asked to decide whether, as a policy matter, a particular
funding method is better than another. Rather, we have been asked to determine
whether the existing funding method passes constitutional muster. These constitutional
challenges do not involve garden variety political questions. They entail grave social,
economic, and moral implications and consequences. A proper public education is not
a static concept and must change with the evolving world around us. Likewise, the
provision and maintenance of a “thorough and efficient” public education system must
also evolve to ensure the Commonwealth’s citizens are fully capable of competing
socially, economically, scientifically, technologically and politically in today’s society.
See, e.g., Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993)
(education necessary to meet duty to cherish public schools must “be adapted to the
various crises of human affairs”), quoting McCulloch v. Maryland, 17 U.S. 316, 415
(1819).
In my view, because the current challenge to the Commonwealth’s public
education financing system involves uniquely compelling issues which are not only of
2
The Education Clause provides: “The General Assembly shall provide for the
maintenance and support of a thorough and efficient system of public education to
serve the needs of the Commonwealth.” PA. CONST. art. III, §14.
3
In relevant part, Article III, Section 32 of the Pennsylvania Constitution prohibits the
General Assembly from enacting special or local laws regulating the affairs of school
districts that can be provided for by general law. PA. CONST. art. III, §32. Pennsylvania
courts consider Article III, Section 32 and the Equal Protection Clause of the United
States Constitution, U.S. CONST. amend. XIV, § 1, to be equivalent as both command
that like persons in like circumstance be treated similarly. Harrisburg Sch. Dist. v.
Zogby, 828 A.2d 1079, 1088 (Pa. 2003) (citations omitted).
[J-82-2016] [MO: Wecht, J.] - 4
constitutional import for Pennsylvania’s students but also of paramount importance to
the Commonwealth as a whole both now and in the future, this Court would be remiss in
its own constitutional obligations by abstaining from deciding this constitutional
challenge based on any theory of judicial restraint. Consumer Party of Pa., 507 A.2d at
333 (“[W]hatever theory is employed, the legitimacy of the abstention is dependent upon
the situation presented.”). See also Martin Redish, Judicial Review & the Political
Question, 79 Nw. U. L. Rev. 1031, 1059 (1985) (asserting political question doctrine is
problematic because it allows federal government or one of its branches to breach
constitutional boundaries without check of judicial review). Accordingly, I believe the
justiciability of questions related to our government’s compliance with its constitutional
duties in this ever-evolving arena should not be subjected to mere mechanical
application of certain enumerated factors. See, e.g., William J. Brennan, State
Constitutions & the Protection of Individual Rights, 90 Harv. L. Rev. 489, 490-92 (1977)
(“state courts that rest their decisions wholly or even partly on state law need not apply
federal principles of standing and justiciability that deny litigants access to the courts”);
Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial
Function, 114 Harv. L. Rev. 1833, 1940 (2001) (“[S]tate courts, because of their differing
institutional and normative position, should not conform their rules of access to those
that have developed under Article III [of the United States Constitution]. Instead, state
systems should take an independent and pragmatic approach to judicial authority in
order to facilitate and support their integral and vibrant role in state governance.”).
Consequently, appellants should have the opportunity to seek a merits disposition of
their claims.
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