In Re Jones

HUTCHINSON, Justice,

dissenting.

Objections to Roxanne Jones’s candidacy for State Senator from the Third Senatorial District, precisely set forth in terms of Section 977 of our Election Code, were properly before the Court in this matter entrusted to its original *72jurisdiction by the General Assembly. Act of June 3, 1937, P.L. 1333, § 977, as amended, 25 P.S. § 2937 (Supp.1983-84). See 42 Pa.C.S. § 764(2); In re Vidmer, 65 Pa.Cmwlth. 562, 442 A.2d 1203, aff'd per curiam, 497 Pa. 642, 444 A.2d 100 (1982).

Unlike a dispute over whether an elected candidate, i.e. a Senator elect, may take his seat in the Senate, the question of whether a candidate can meet constitutional qualifications for office is justiciable on timely objection to his nomination petition.1 See 25 P.S. § 2937. I, therefore, dissent from the several orders of this Court in this election matter, except for our dismissal of the Senate’s petition to intervene. Moreover, for the reasons which follow, I am deeply concerned about the implications of the reasoning set forth in the opinion supporting the orders of the Court.

I

On January 30, 1984, Roxanne H. Jones filed a nomination petition to have her name printed upon the Democratic party’s official primary ballot for the office of Senator in the General Assembly for the Third Senatorial District. Both her nomination petition and the attached candidate’s affidavit, required by Section 910 of the Pennsylvania Election Code, as amended, 25 P.S. § 2870, (Supp.1983-84) set forth her claim that she resided at 1714 North Bambrey Street. Section 910 provides in pertinent part that the candidate must file an affidavit with his nomination petition stating “(a) his residence, with street and number ...; (b) his election district ...; (d) that he is eligible for such office; ” Emphasis added. Section 977 of the Election Code provides, inter alia:

All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to *73be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside.

Relying on the absence of “valid” objections this Court ordered the Secretary of the Commonwealth to certify Ms. Jones’s candidacy to the local Election Board. However, within the statutory seven day period Milton Street, a rival candidate, and other Objectors had filed a petition in Commonwealth Court asking it to set aside Ms. Jones’s nomination petition. The plurality twice avoided dealing with that petition by finding it did not present a “justiciable” issue.

In their petition below the Objectors said first:

1. This Honorable Court has original jurisdiction of this Petition pursuant to____ 977 of the Pennsylvania Election Code.

After setting forth their identities and the fact that Ms. Jones had filed a nomination petition as a Democratic candidate for State Senator from the Third Senatorial District in the 1984 Primary the Objectors went on to say:

4. Article 2, Section 5 of the Constitution of ... Pennsylvania provides that ‘Senators shall have been ... inhabitants of the [sic] respective districts one year next before their election____’
5. Roxanne H. Jopes does not meet the requirements of Article 2, Section 5 ... in that she has not been nor is a resident of the Third Senatorial District ... and, in fact, resides outside said District.
6. Notwithstanding ... she executed a Candidate’s Affidavit under oath, swearing that she resided ... at 1714 North Bambrey Street, Philadelphia, which address is located within the Third Senatorial District.

The Objectors’ petition concluded:

8. Roxanne H. Jones has violated the Pennsylvania Election Code and the Constitution of Pennsylvania in swearing falsely in her Candidate’s Affidavit ... as to the *74location of her residence at the time she signed the Candidate’s Affidavit____

Section 977, 25 P.S. § 2937, also provides:

If the court shall find that said nomination petition is defective under section 976 [25 P.S. § 2936] ... or was not filed by persons entitled to file the same, it shall be set aside.

Emphasis added.

A person who cannot serve is not entitled to file. This is the obvious reason why Section 910 requires a candidate to state in his affidavit that he is “eligible” for the office he seeks. Moreover, under Election Code Section 910, set forth supra, at 2, the candidate’s affidavit is a necessary part of her nomination petition. As this Court aptly said in affirming an order striking a nomination petition because the candidate falsely swore he was a member of the Democratic party:

The requirements of sworn affidavits are to insure the legitimacy of information crucial to the election process. Thus, the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process. [4] It has not been argued nor could it be successfully maintained that the failure to affix an affidavit of the candidate would not be a fatal defect. Gregg v. Morrison, 59 Dauph. 35 (1948); Howe v. Campbell, 60 [Pa.] D & C 10 (1947). As a corollary it must necessarily follow that a false affidavit must be at least equated with the failure to execute the affidavit. Without inquiring into the intentions of the parties and assuming the absence of any wrongful intent, the fact remains that when the affidavit was taken the facts sworn to were not true. Such a defect cannot be cured by subsequent conduct and the petition was therefore void and invalid.

In re Petition of Cianfrani, 467 Pa. 491, 494, 359 A.2d 383, 384 (1976). See also In re Carlson, 60 Pa.Cmwlth. 170, 430 A.2d 1210, aff'd per curiam 494 Pa. 139, 430 A.2d 1155 (1981).

*75It is apparent from the foregoing that the General Assembly has entrusted to the judiciary a priori determination of the presence of the impediment our Constitution’s Article II, Section 5, places against a non-resident’s representing a Senatorial District. This is done through timely Election Code challenges to such qualifications. It is also apparent that the Objectors plainly raised Ms. Jones’s constitutional disqualification, as our Election Code cases have heretofore permitted, by pleading the falsity of the affidavit required by Election Code Section 910, with respect to residency. In Re Vidmer, supra. In Re Carlson, supra.

Thus, the issue of whether Roxanne Jones met Article II, Section 5’s residency requirements was properly before the court.2 As such Judge Rogers had a duty to decide that issue, unless the General Assembly has improperly granted the judiciary power in the Election Code to act in matters either inappropriate to the exercise of judicial power or plainly reserved to other coordinate branches by constitutional text.

II

The question of whether Ms. Jones met the constitutional requirements of residency within the District she sought to serve for the requisite time prior to election is appropriately justiciable since our Constitution has no plain textual commitment of this Election Code matter to the Senate or any other coordinate body. The numerous citations in the opinion supporting the Court’s orders are not precedent for a conclusion of non-justiciability. Indeed, the precedent in Pennsylvania and elsewhere is all the other way. Our courts have heretofore routinely considered and determined such matters without objection. Lesker Case, 377 Pa. 411, 105 A.2d 376 (1954); In re Carlson, supra, In re Vidmer, supra; In re: Nomination Petition of Miller, 94 Dauph. 186 (1971); Kelly Nomination, 49 [Pa.] D & C.2d 780 *76(1970); In re: Nomination Petition of Silverman, 89 Dauph. 59 (1968); Horton Petition, 11 [Pa.] D & C.2d 706 (1957). See also Chalfin v. Specter, 426 Pa. 464, 233 A.2d 562 (1967). The fact that this Court has not specifically addressed the justiciability issue in its cases involving challenges under the Election Code does not support a finding that such challenges are not justiciable. Indeed, our heretofore uniform practice of dealing with these cases on the merits and the absence of any legislative action in response argues for justiciability. Moreover, the justiciability issue was raised in the Carlson case and disposed of by the Commonwealth Court. We could not have affirmed the Commonwealth Court’s decision if the matter was not justiciable.

The plurality relies on Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) in deciding the justiciability issue.3 In both these cases, the United States Supreme Court explained the considerations involved in determining that a matter is justiciable in its generic sense of appropriate for judicial resolution and specifically, that it is not a “political question” properly left to a coordinate branch of the government under the doctrine of separation of powers. In both cases the Court found the issues involved justiciable and did adjudicate them.

Baker and Powell articulated a practical standard for determining whether a case or controversy involves a nonjusticiable political question. The Supreme Court concluded that a nonjusticiable political question implicates at least one of the following factors:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of *77judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710, quoted in Powell v. McCormack, 395 U.S. at 518-19, 89 S.Ct. at 1962. Analysis of the present case under that standard shows that the challenge to candidate Jones’s nominating petition was not a political question.

Article II, Section 9, of our Constitution is not a textually demonstrable constitutional commitment of the issue of a “candidate’s” constitutional qualifications to the legislature; it is only a textual commitment of authority for the legislature to determine qualifications of its “members.” See In re Carlson, supra.

In Powell v. McCormack, supra, the United States Supreme Court held the exclusion of a person elected to the national House of Representatives by that body was reviewable by the judiciary under Article III of the United States Constitution despite the text of that Constitution’s Article I, Section 5, stating that each house shall “be the Judge of the Elections, Returns and Qualifications of its own members.” Emphasis added. The analogous provision of our Constitution, Article II, Section 9, does not provide a broader commitment of authority to our legislature than Article I, Section 5 of the United States Constitution gives to Congress; in fact it is arguably narrower. It states in pertinent part: “Each House shall choose its other officers and shall judge of the election and qualifications of its members.”

Moreover, in Powell the court specifically reserved the question of whether federal courts might be barred under *78the political question doctrine from reviewing the House’s factual determination that a member did not meet one of the constitutional qualifications. The Powell court did not use language, dicta or otherwise, that would suggest that the political question doctrine bars judicial review of a challenge to a “candidate’s” constitutional qualifications. See also Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed. 211 (1972) (state court’s order of a recount in United States Senatorial race does not interfere with Senate’s power under Article I, Section 5 of United States Constitution).

In Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706, the United States Supreme Court pointed out:

deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

In recognition of that delicate balance, which is equally present under our Constitution, and to avoid any potential conflict between itself and the courts over challenges to qualifications of “members,” our legislature enacted an Election Code which grants the judiciary the power to determine the “candidates’ ”, not “members’ ”, constitutional qualifications. By severely limiting the time, within which the court could exercise its jurisdiction to hear challenges to the constitutional qualifications of candidates for office, to seven days from the filing of a nominating petition or papers, a period well before either the primary or the general election, and by requiring the candidate’s “affidavit,” through which such challenges are made, the legislature has nicely preserved that balance.

The opinion in support of the Court’s order declaring Ms. Jones’s residency qualifications non-justiciable avoided our responsibility. That avoidance led to the “incredible scenario” of the present Senate’s attempt to control the seating of *79a potential future member and the stand-off between the Secretary of the Commonwealth and the Philadelphia Board of Elections. That scenario brought this Court back into the assertedly non-justiciable matter to order Ms. Jones’s certification as a candidate without permitting either the judiciary, the executive or the Senate to determine whether she met the constitutional requirement of one year’s prior residency in her District, a condition precedent to her seating if elected.

When applied to this case the remaining factors in the Baker-Powell standard also support a finding that the question before us is a-justiciable question. There are judicially discoverable and manageable standards to aid in the resolution of a factual challenge to the constitutional qualifications the legislature has required a candidate to state in her affidavit. In fact, the legislature prescribed a complete framework for the judiciary to follow in entertaining such challenges when it enacted the Election Code.

Our courts are quite capable of resolving factual questions such as whether a candidate meets the age and residency requirements of our Constitution without an initial policy determination of any sort. Moreover, our resolution of a challenge to a candidate’s qualifications expresses no lack of respect for a coordinate branch of government. The Election Code sets forth the legislative mandate directing the courts to resolve such questions when properly raised. We are more likely to invite disrespect by refusing to follow its direction, absent a valid constitutional ground. The opinion supporting the Court’s orders itself correctly recognizes that the legislature has no power to consider a candidate’s qualifications before election. This recognition necessarily implies the absence of any potential embarrassment arising out of “multifarious pronouncements by various departments on one question.”

Finally, my reading of the nineteen cases cited in at 58-61 of the opinion supporting the orders of the Court for the proposition that courts do not have “jurisdiction” to intervene “at this juncture”, id. at p. 58, indicates to me *80that eighteen of them deal with post-general election challenges under an election code and only one, Covington v. Buffett, 90 Md. 569, 45 A. 204 (1900) deals with a post-primary, pre-general election. I cannot discern the relevance of these cases to the Election Code matter before us.

Ill

Perhaps the most troubling aspect of the opinion supporting these orders is its unnecessary attempt to deal with jurisdiction and justiciability of issues surrounding the seating or expulsion of an elected candidate. See at 61-63 of the opinion supporting the orders of the Court, and cases cited thereat. The question of whether an elected candidate should be seated is simply not before us. The issue here is whether a candidate’s nominating petition is defective if she falsely states she meets constitutional requirements for holding office. That issue is traditionally justiciable. The question of whether an elected candidate should not be seated for failure to meet constitutional qualifications does implicate an issue for which there is arguably a plain textual commitment of authority to a legislative body. Resolution of the justiciability question is not before us in that context where it unarguably “requires a most delicate exercise in constitutional interpretation.” Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706, quoted with approval in Powell v. McCormack, 395 U.S. at 521, 89 S.Ct. at 1963. We should not engage in any constitutionally delicate exercise on a question not before us.

As stated in Part II of this dissent, Powell v. McCormack carefully noted that the issue there before the Court was only Mr. Powell’s request for a declaratory judgment that the House before seating him could not require him to meet qualifications beyond those specified in the Constitution. After analyzing the historical evidence the Powell court held only that the national House could not refuse to seat an elected member who met the constitutional requirements for seating. It did not hold that the judiciary had any power over a refusal to seat a person if the House deter*81mined he had failed to meet constitutional requirements. The United States Supreme Court also carefully noted that the power to expel a seated member was nowhere involved.

Broad assertions of jurisdiction over the seating of elected members of the legislature by the common law writs of mandamus or quo warranto are unnecessary and inconsistent with this Court’s timid reluctance to involve itself in pre-election issues of a candidate’s right to run for the office of State Senator. See Harrington v. Carroll, 428 Pa. 510, 239 A.2d 437 (1968). They raise issues of both jurisdiction and justiciability that we should be most reluctant to deal with. None of the cases cited in the opinion in support of the Court’s orders holds justiciable the issue of whether an elected candidate, unlike one seeking to run, should be refused his seat for failure to meet constitutional qualifications.

The dictum, implying that the judiciary would be less “directly involved in evaluating constitutional qualifications” if it were to review the Senate’s decision on a post-election seating contest than if it were to vacate an unqualified candidate’s nomination petition under the express provisions of the Election Code, is incomprehensible to me. The consideration of the candidate’s qualifications in the seating case is no more “tangential” to judicial decision than in the Election Code case.

Moreover, the Constitution plainly entrusts the Senate itself with responsibility for preserving its own “integrity as a public institution” by seating elected members who are constitutionally qualified and refusing seats to those who are not. No statute has entrusted this determination to the judiciary. In contrast, the General Assembly, has directed the judiciary in Section 977 of the Election Code to preserve the integrity of elections by vacating nomination petitions filed by candidates who falsely swear they meet constitutional requirements to serve. We should have followed the heretofore unbroken precedent in this jurisdiction, affirmed Judge Rogers’s constitutional assertion of jurisdiction over *82the “merely tangential” constitutional issue and considered Ms. Jones’s appeal on the merits.

IV

In sum, the judiciary has a duty to determine the constitutional qualifications of candidates for the offices they seek; that duty does not conflict with the Senate’s constitutional power to determine the election and qualifications of its members. The legislature not only recognized that duty but expressly requested us to perform it. Its performance is not foreign to our experience and has involved us in no great difficulties. The Objectors properly raised the issue of Ms. Jones’s residence and Judge Rogers properly considered it. We should have reviewed his decision on its merits. As a result of our failure to do so the ■ issue of whether Roxanne Jones can constitutionally serve remains undetermined and its determination is unnecessarily entrusted to a political branch whose decisions are routinely and properly based on the majorities of the moment,4 to whom it is largely responsible. The essence of a constitution is the insulation of its commands from that type of determination wherever possible. The institution which is charged with providing that insulation is the judiciary. Ideally, we proceed on reason to which we are largely responsible and our decisions on the constitution, within the limits of our own constitutional power, thus gain an acceptance which constitutional decisions of the more political branches do not have. I cannot avoid the belief that this Court’s decision not to review Judge Rogers’s determination of Ms. Jones’s constitutionally required residential connec*83tion with her prospective constituents is wrong, and the reasoning the plurality advances to support it is fallacious and internally inconsistent.

McDERMOTT, j., joins in this opinion.

. Both the objectors and candidate Jones understandably took it for granted that the challenge was justiciable. The issue of justiciability was raised sua sponte ignoring the long-standing practice of considering such challenges under the Election Code. See infra, at 75. In this connection we note that the issue the plurality considers is precisely one of justiciability, not of jurisdiction.

. The allegations of the Objectors’ petition are plain and concise as to both fact and theory. They satisfy the requirements of our Rules of Civil Procedure. They also satisfy the statutory requirement that they be specific.

. The opinion in support of the Court’s orders is confusing in its use of these cases. It seems to use them indiscriminately to support: its holding of non-justiciability under the Election Code; its later holding that judicial enforcement of Ms. Jones’s right to be on the ballot is justiciable; and its dictum that matters involving the Senate’s Article II, Section 9 power "to judge of the election and qualifications of its members” is the subject both of concurrent jurisdiction and judicial review. On the last issue see Part III of this dissent.

. Moreover, by leaving the very serious challenge to the qualifications of candidate Jones unresolved until after the general election, the opinion supporting the orders of the court creates an unnecessary likelihood of a special election should Ms. Jones win the general election and the Senate determine that she is not qualified under Article II, Section 5. Such special elections are sometimes necessary but never desirable. They frequently leave the residents of a district unrepresented for substantial periods of time. They require constitutionally qualified candidates to face a second campaign, a costly and demanding process, as a result of a constitutionally unqualified candidate’s participation in the first election.