Braig v. State Employees' Retirement Board

BYER, Judge,

dissenting.

I respectfully dissent. In addition to the reasons expressed by Judge Palladino in her dissenting opinion, which I join, I dissent for the additional reason that the effect of the majority’s holding will be to insulate those convicted in federal courts from the removal provision of Pa. Const. Art. VI, § 7.1

If the removal provision applies only where the sentencing judge includes removal from office as part of the judgment of sentence, as held by the majority, its operation necessarily will be limited to those convicted in the Pennsylvania courts. To my knowledge, Congress has not authorized federal courts to include removal from state office pursuant to the Pennsylvania Constitution as part of the sentence for a federal conviction. Without such authority, I do not think the federal courts have the power to enforce Pa. Const. Art. VI, § 7 in the manner contemplated by the majority. I cannot believe that the framers of the Pennsyl*141vania Constitution intended that the broad removal provision of Pa. Const. Art. VI, § 7 would be so limited in its operation.

I agree with the majority that it is a self-executing provision. My difference with the majority is that I would construe it as being self-executing here.2

. The same result also would apply in the case of a Pennsylvania civil officer who is convicted of an infamous crime in the courts of another state.

. I also believe that due process requires that a person subject to the removal provision of Pa. Const. Art. VI, § 7 have the opportunity to be heard on the questions of whether he or she is a civil officer or has been convicted of an infamous crime. Where a convicted person does not resign from office, that opportunity to be heard could be in the defense of a quo warranto action filed by the attorney general or other appropriate plaintiff challenging the person’s right to continue in office because of the removal provision. That would not be an option here, because Braig resigned from office. Nevertheless, I believe that due process is satisfied by affording Braig the right to be heard on the applicability of the removal provision in the context of this administrative proceeding, subject to appellate review in this court.