Frame v. Sutherland

327 A.2d 623, 459 Pa. 177, 1974 Pa. LEXIS 461

• Court: Supreme Court of Pennsylvania
• Decided: October 25, 1974
• Docket: 613 Misc.Docket
• Status: Published

Opinions

OPINION

ROBERTS, Justice.

We are presented with challenges to the validity of certain appointments made by the Governor without the consent of the Senate. We hold that, because the appointments were not made “during the recess of the Senate,” they are invalid.

At 2:30 p. m. on December 31, 1973, the Pennsylvania Senate voted to adjourn its 1973 session. The adjournment resolution, adopted by a vote of 24-22, purported to adjourn the Senate sine die.¹ The resolution did not contemplate, provide for, or receive the consent of the House of Representatives. In fact, the House met and conducted business on December 31 and the morning of January 1, 1974. At noon that day, the one hundred fifty-seventh General Assembly expired and the one hundred fifty-eighth was mandated to begin.²

Several hours after the adjournment of the Senate, the Governor, pursuant to article IV, section 8(b) of the Constitution, made approximately 680 appointments, including defendants Grace Hatch as a member of the Civil Service Commission, Robert E. Sutherland as a member of the Pennsylvania Game Commission, Peter Elish as a member of the Milk Marketing Board, and Egidio Cerelli as a member of the Pennsylvania Turnpike Commission.

In January, 1974, plaintiffs, three members of the Senate, instituted these actions in quo warranto in the Commonwealth Court to test the rights of the named defendants to hold the offices to which they had been appointed on December 31. Plaintiffs also petitioned this Court to assume plenary jurisdiction of the matter; ³ we granted their petition on February 6, 1974, and heard argument on April 22,1974 ⁴

This controversy depends for its resolution on the construction of article IV, section 8 of our Constitution, which in pertinent part provides:

“(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate.

“(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session . . If the vacancy happens during the session of the Senate except as otherwise provided in this Constitution, he shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy.” The procedure established by section 8(a) is the sub-

mission of appointments to the Senate for the consent of two-thirds of its members. Section 8(b) creates an exception to that general rule, exempting certain appointments from the requirement of senatorial confirmation. The Governor, it is provided, may fill vacancies in offices to which he appoints without submitting the appointments to the Senate by granting temporary⁵ commissions “during the recess of the Senate.” If the Senate is not in recess when the appointments are made, the general requirement of senatorial confirmation is applicable. That requirement is suspended only during “the recess of the Senate.” Thus, the validity of an unconfirmed appointment depends on whether the Governor’s power to issue temporary commissions was triggered by “the recess of the Senate.”

The phrase “recess of the Senate” in this context does not include an interruption or break following a daily meeting. If it did, the Governor would have a choice in the appointment procedure he could utilize. Obviously, unless the Senate undertook 24-hour sittings, there would be a “recess of the Senate” for at least some period of time every day of the year when unconfirmed appointments could be made.

The relationship of the temporary appointment power and the permanent appointment power indicates, however, that the Governor is not to have that option. It is clear that the draftsmen preferred appointments be made by gubernatorial nomination-senatorial consent for traditional checks-and-balances purposes.⁶ However, public necessity might require a position be filled after the Senate had terminated its session, when the constitutionally preferred procedure could not be followed. To provide an appointment process for occasions when the preferred procedure is thus inadequate,⁷ the Constitution permits the Governor to issue temporary commissions “during the recess of the Senate.” The exception was designed for use only when the preferred procedure could not be employed. It follows that “recess of the Senate” must be limited to those periods of time when the Senate is unable to consent to appointments.

Inability to consent does not result from a break between one day’s session and the next. Neither does it re-suit from a Friday-to-Monday interruption. Indeed, we are unable to say that any interruption during a session of the Senate renders the Senate unable to consent to appointments. Therefore, we conclude that “recess of the Senate” refers only to the final sine die adjournment at the end of the session.

This conclusion is consistent with our cases dealing with recess appointments. In Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237 (1973), the majority referred to the “final adjournment of the Senate” as the trigger which activates the temporary appointment power. In Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 493, 281 A.2d 57, 61 (1971) (Opinion in Support of the Per Curiam Order), three Justices, in comparing article IV, section 8 and article V, section 13, concluded that “recess of the Senate” and “sine die adjournment of the Senate” differed editorially only and not in substance and interpreted both to mean final adjournment. Ritenour v. Peirce, 442 Pa. 1, 10, 272 A.2d 900, 905 (1971), also recognized final adjournment as the circumstance which suspended the senatorial-confirmation requirement.

Therefore, only if the Senate had finally adjourned on the afternoon of December 31, 1973, a “recess of the Senate” existed which activated the Governor’s power to issue temporary commissions and the appointments of defendants are valid. If the Senate had not finally adjourned, the requirement of senatorial confirmation was not suspended by a “recess of the Senate” and the appointments are invalid. Thus, the narrow question for decision is whether the Senate’s unilateral adjournment on December 31 was a final adjournment.

We hold that the Senate’s attempt to adjourn sine die failed because of the absence of consent by the House of Representatives. Our holding rests on a conclusion that the Constitution prohibits either house from adjourning sine die without the consent of the other.

The entire constitutional scheme is clearly predicated on the assumption that adjournment may not be a unilateral act on the part of one of the houses of the General Assembly. Article III, section 9 provides:

“Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor . . . . ”

Article IV, section 12 states:

“[The Governor] may, on extraordinary occasions, convene the General Assembly, and in case of disagreement between the two Houses, with respect to the time of adjournment, adjourn them to such time as he shall think proper . . . .”

The exclusion of adjournment resolutions from article III, section 9 and the provision for adjournment by the Governor in article IV, section 12 would be utterly superfluous if the Constitution did not contemplate that adjournment of a house of the General Assembly required the consent of the other house.

The reason of policy for this requirement is not difficult to discern. Because each house is powerless to enact legislation alone,⁸ each has a strong interest in insuring that bills passed by it are considered by the other house. The greatest threat to this interest is the possibility that the other house might adjourn, thus disabling itself from the consideration of bills. Protection against this possibility is provided each house by the Constitution in the form of a power to refuse to consent to the adjournment of the other house.

An exception to the consent requirement demonstrates that protection of each house’s interest in the consideration of its bills by the other is its underlying policy. Article II, section 14 states:

“Neither House shall, without the consent of the other; adjourn for more than three days . . . .”

The draftsmen foresaw that protection of the interest of each house in having its bills considered by the other, if unqualified, would be gained at the expense of flexibility in the administration of the legislative calendar. Accordingly, the Constitution provides an exception to the consent requirement for adjournments of less than four days. This exception clearly reflects the perception that adjournments of less than four days present a minimal threat to each house’s interest in the consideration by the other of its bills.

Defendants argue that the Senate’s adjournment in this case was effective despite the absence of the consent of the House of Representatives under article II, section 14 because its duration was not more than three days. We disagree. Sine die adjournments are vastly different from the short recesses envisioned by article II, section 14 in two important respects. First, article II, section 14, as pointed out above, was designed to provide flexibility in the legislative calendar. However, sine die adjournments are unrelated to flexibility in the calendar, representing as they do the end of the legislative calendar for the session. Because the purpose of the exception to the consent requirement would not be served by its application to sine die adjournments, we conclude that the Constitution does not intend its application. Hence, section 14 does not expand the power of the Governor to make unconfirmed appointments.

Second, at the time the consent exception was inserted into the Constitution, a sine die adjournment by one house posed a far more drastic threat to the interests of the other than a short recess contemplated by article II, section 14. Recesses of less than four days pose a minimal danger that one house will so absent itself as to disable it from consideration of legislation. However, at the time the consent requirement and the three-day exception were inserted in the Constitution, a sine die adjournment represented the greatest threat to the interests of the other house. This was so because unenacted bills pending at the end of a session expired,⁹ requiring reintroduction and repassage of the bill in the originating house in order to obtain consideration by the other house. The absence of one house prevented legislation initiated by the other from ever being enacted into law. Accordingly, in contrast to a three-day intra-session recess, a sine die adjournment by one house was the ultimate threat to the interest in having the bills of the other enacted.

It is true that, since the constitutional amendment of 1967, a sine die adjournment at the end of a session does not terminate all then-pending business. Article II, section 4 now provides that “The General Assembly shall be a continuing body during the term for which its Representatives are elected.” But there is no evidence that suggests that the change in article II, section 4 was intended to affect the consent requirement or the inapplicability of the three-day exception.

Nothing in our prior cases dealing with the recess appointment power of the Governor suggests that that power is triggered by a unilateral adjournment of the Senate. In fact, a conclusion that a unilateral adjournment is sufficient would be an unwarranted and constitutionally impermissible extension of our decisions. In those cases, it is clear that the respective recesses of the Senate had been consented to by the House of Representatives ; see Stroup v. Kapleau, 455 Pa. 171, 173, 313 A.2d 237, 238 (1973); Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 500-501 n. *, 281 A.2d 57, 65 n. 4 (1971) (Opinion Supporting in Part and Opposing in Part the Per Curiam Order); Ritenour v. Peirce, 442 Pa. 1, 4 n. 5, 272 A.2d 900, 902 n. 5 (1971). Our discussion in Stroup at 183, 313 A.2d at 243, assumed that House consent was in fact necessary for final adjournment of the Senate.

In summary, we hold that the consent of the House of Representatives is a prerequisite for a valid final adjournment of the Senate. Since it was not obtained in this instance, there was no “recess of the Senate” within the meaning of article IV, section 8. Therefore, the recess appointment power under section 8(b) was not operative. Because defendants’ appointments were not submitted to the Senate for its consent as required by section 8(a), their appointments are invalid.

Judgments of quo warranto are entered, declaring the defendants are unlawfully holding the offices which they occupy and they are accordingly ousted and excluded therefrom.¹⁰

MANDERINO, J., took no part in the consideration or decision of this case. NIX, J., filed a dissenting opinion. POMEROY, J., concurs in the result. EAGEN, J., dissents.

1 . “[W]ithout assigning a day for a further meeting or hearing. Hence, a final adjournment.”

Black’s Law Dictionary 1556 (rev. 4th ed. 1968).

2 . Pa.Const. art. II, § 4:

“The General Assembly . shall meet at twelve o’clock noon on the first Tuesday of January each year.”

3 . See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 205, 17 P.S. § 211.205 (Supp.1974).

4 . This case was assigned to the writer on October 1, 1974, for the purpose of preparing an opinion expressing the views of a majority of this Court.

5 . I. e., “commission expiring at the end of [the Senate’s] session

6 . See The Federalist No. 76, at 494-95 (Modern Library ed. 1937) (A. Hamilton):

“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

“It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion' and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

7 . See id. No. 67, at 439 (A. Hamilton):

“[The President’s recess appointment power under U.S.Const. art. II, § 2, cl. 3 is] nothing more than a supplement to [his permanent appointment power under U.S.Const. art. II, § 2, cl. 2], for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments ‘during the recess of the Senate, by granting' commissions which shall expire at the end of their next session.’ ” (original emphasis removed)

8 . Pa.Const. art. Ill, § 4.

9 . “A motion to adjourn sine die has the effect of closing the session and terminating all unfinished business before the House, and all legislation pending upon adjournment sine die expires with the session, while a motion to adjourn from day to day does not destroy the continuity of a session and unfinished business simply takes its place on the calendar of the succeeding day.”

P. Mason, Manual of Legislative Procedure § 445(3), at 301 (1970); see Rules of the Senate of Pennsylvania, rule XXVIII.

10 . See Act of June 14, 1836, P.L. 621, § 11, 12 P.S. § 2031 (1967).