Opinion
63 MAP 2024
09-25-2024
DAVID H. ZIMMERMAN AND KATHY L. RAPP, Appellants v. AL SCHMIDT, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, ADAMS COUNTY BOARD OF ELECTIONS, ALLEGHENY COUNTY BOARD OF ELECTIONS, ARMSTRONG COUNTY BOARD OF ELECTIONS, BEAVER COUNTY BOARD OFELECTIONS, BEDFORD COUNTY BOARD OF ELECTIONS, BERKS COUNTY BOARD OF ELECTIONS, BLAIR COUNTY BOARD OF ELECTIONS, BRADFORD COUNTY BOARD OF ELECTIONS, BUCKS COUNTY BOARD OF ELECTIONS, BUTLER COUNTY BOARD OF ELECTIONS, CAMBRIA COUNTY BOARD OF ELECTIONS, CAMERON COUNTY BOARD OF ELECTIONS, CARBON COUNTY BOARD OF ELECTIONS, CENTRE COUNTY BOARD OF ELECTIONS, CHESTER COUNTY BOARD OF ELECTIONS, CLARION COUNTY BOARD OF ELECTIONS, CLEARFIELD COUNTY BOARD OF ELECTIONS, CLINTON COUNTY BOARD OF ELECTIONS, COLUMBIA COUNTY BOARD OF ELECTIONS, CRAWFORD COUNTY BOARD OF ELECTIONS, CUMBERLAND COUNTY BOARD OF ELECTIONS, DAUPHIN COUNTY BOARD OF ELECTIONS, DELAWARE COUNTY BOARD OF ELECTIONS, ELK COUNTY BOARD OF ELECTIONS, ERIE COUNTY BOARD OF ELECTIONS, FAYETTE COUNTY BOARD OF ELECTIONS, FOREST COUNTY BOARD OF ELECTIONS, FRANKLIN COUNTY BOARD OF ELECTIONS, FULTON COUNTY BOARD OF ELECTIONS, GREENE COUNTY BOARD OF ELECTIONS, HUNTINGDON COUNTY BOARD OF ELECTIONS, INDIANA COUNTY BOARD OF ELECTIONS, JEFFERSON COUNTY BOARD OF ELECTIONS, JUNIATA COUNTY BOARD OF ELECTIONS, LYCOMING COUNTY BOARD OF ELECTIONS, LACKAWANNA COUNTY BOARD OF ELECTIONS, LANCASTER COUNTY BOARD OF ELECTIONS, LAWRENCE COUNTY BOARD OF ELECTIONS, LEBANON COUNTY BOARD OF ELECTIONS, LEHIGH COUNTY BOARD OF ELECTIONS, LUZERNE COUNTY BOARD OF ELECTIONS, MCKEAN COUNTY BOARD OF ELECTIONS, MERCER COUNTY BOARD OF ELECTIONS, MIFFLIN COUNTY BOARD OF ELECTIONS, MONROE COUNTY BOARD OF ELECTIONS, MONTGOMERY COUNTY BOARD OF ELECTIONS, MONTOUR COUNTY BOARD OF ELECTIONS, NORTHAMPTON COUNTY BOARD OF ELECTIONS, NORTHUMBERLAND COUNTY BOARD OF ELECTIONS, PERRY COUNTY BOARD OF ELECTIONS, PHILADELPHIA COUNTY BOARD OF ELECTIONS, PIKE COUNTY BOARD OF ELECTIONS, POTTER COUNTY BOARD OF ELECTIONS, SCHUYLKILL COUNTY BOARD OF ELECTIONS, SNYDER COUNTY BOARD OF ELECTIONS, SOMERSET COUNTY BOARD OF ELECTIONS, SULLIVAN COUNTY BOARD OF ELECTIONS, SUSQUEHANNA COUNTY BOARD OF ELECTIONS, TIOGA COUNTY BOARD OF ELECTIONS, UNION COUNTY BOARD OF ELECTIONS, VENANGO COUNTY BOARD OF ELECTIONS, WARREN COUNTY BOARD OF ELECTIONS, WASHINGTON COUNTY BOARD OF ELECTIONS, WAYNE COUNTY BOARD OF ELECTIONS, WESTMORELAND COUNTY BOARD OF ELECTIONS, WYOMING COUNTY BOARD OF ELECTIONS, AND YORK COUNTY BOARD OF ELECTIONS, Appellees
[J-80-2024]
SUBMITTED: September 9, 2024
Appeal from the Order of the Commonwealth Court at No. 33 MD 2024 dated August 23, 2024.
ORDER
PER CURIAM
AND NOW, this 25th day of September, 2024, the Order of the Commonwealth Court is VACATED and this case is REMANDED to the Commonwealth Court with direction to dismiss the suit with prejudice. The Commonwealth Court lacked original subject matter jurisdiction to adjudicate the matter because neither the Secretary of State, Al Schmidt, nor the Department of State is an indispensable party, as required by the Judicial Code. See 42 Pa.C.S. § 761(a)(1); Penn State Educ. Ass'n v. Commonwealth, Dept. of Community & Econ. Dev., 50 A.3d 1263, 1277 (Pa. 2012) ("In determining whether a party is indispensable, the basic inquiry remains whether justice can be done in the absence of a third party." (internal quotation marks omitted)); Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988) ("A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights. . . . In this connection, if the merits of a case can be determined without prejudice to the rights of an absent party, the court may proceed."). The Petition for Review, as further elaborated in the Appellants' brief before this Court, seeks relief that, if warranted, could be granted solely by and through the County Boards of Elections. However, the County Boards of Elections are not Commonwealth parties, and therefore provide no basis for the Commonwealth Court's original jurisdiction. See 42 Pa.C.S. §§ 102 (defining "Commonwealth government" to exclude any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or authority").
The Joinder of Appellee Cambria County Board of Elections to Brief of Appellees Secretary of State Al Schmidt and Department of State is DENIED as moot.
Justice Brobson files a concurring statement.
CONCURRING STATEMENT
BROBSON JUSTICE
I join the majority's disposition in full. I write separately to highlight the importance of participation by an attorney from the Pennsylvania Office of Attorney General (OAG) in all matters challenging the constitutionality of laws of this Commonwealth. As many know, the Commonwealth Attorneys Act imposes a mandatory duty on the Pennsylvania Attorney General "to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction." See Section 204(a)(3) of the Commonwealth Attorneys Act, 71 P.S. § 732-204(a)(3). This unambiguous law ensures that whenever anyone lodges a constitutional challenge in court to a statute of this Commonwealth, which is presumed constitutional until found otherwise by a court, there will always be a party adverse to the plaintiff to defend the statute. See Commonwealth v. Rollins, 292 A.3d 873, 879 (Pa. 2023) ("[L]egislative exactments are presumed constitutional, and the party challenging the constitutionality of a statute bears a heavy burden of persuasion."). As Justice Wecht has observed, "the adversarial process is one in which legal disputes are resolved by having the parties present their conflicting views of fact and law before an impartial and relatively passive decision-maker." Quigley v. Unemployment Comp. Bd. of Rev., 263 A.3d 574, 601 (Pa. 2021) (Wecht, J., concurring) (emphasis added).
So important is this statutory duty to our adversarial process that our Court has enacted rules of procedure requiring that the party challenging the constitutionality of a statute give notice to the Attorney General and authorizing the Attorney General to intervene without the necessity of applying for intervention. See Pa.R.Civ.P. 235; Pa.R.A.P. 521. The duty under our rules to notify the Attorney General of a claim or action that calls into question the constitutionality of a statute and the Attorney General's mandatory duty to appear and defend the statute from constitutional attack go hand-in-hand.
Here, the OAG is participating in this matter as counsel to Respondents Al Schmidt, in his official capacity as Secretary of State for the Commonwealth, and the Department of State. For the above-stated reasons, it is important in proceedings such as these, where the constitutionality of enacted legislation is at issue, that the OAG appears and defends the constitutionality of the challenged statutes. Contrarily, it would, in my view, run afoul of the General Assembly's intent, so clearly stated in the Commonwealth Attorneys Act, for the Attorney General to either side with the challengers in such litigation or to simply not appear at all to defend the laws of this Commonwealth from constitutional attacks. In this case, the Attorney General fulfilled her mandatory statutory duty.