Lawless v. Jubelirer

789 A.2d 820, 2002 Pa. Commw. LEXIS 4
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 4, 2002
StatusPublished
Cited by14 cases

This text of 789 A.2d 820 (Lawless v. Jubelirer) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawless v. Jubelirer, 789 A.2d 820, 2002 Pa. Commw. LEXIS 4 (Pa. Ct. App. 2002).

Opinions

PER CURIAM.

AND NOW, this 4th day of January 2002, the majority and dissenting opinions filed on Friday, December 28, 2001, in the above-captioned matter are hereby withdrawn and vacated.

In their stead, the attached majority and dissenting opinions and orders are filed as of this date.

DOYLE, President Judge.1

Before this Court2 in our original jurisdiction are preliminary objections filed by Robert C. Jubelirer, the Lieutenant Governor of the Commonwealth of Pennsylvania and a State Senator elected from Pennsylvania’s 30th Senatorial District, who is as well the President pro tempore of the Pennsylvania Senate (Respondent), to a petition for review in the nature of a request for declaratory judgment filed by State Representative John A. Lawless, Charles A. Pascal Jr., and Joseph H. Wiedemer (collectively Petitioners). Petitioners Lawless, Pascal and Wiedemer are residents of Pennsylvania (Wiedemer in Pennsylvania’s 30th Senatorial District) as well as electors, voters and taxpayers.3

In their petition, Petitioners allege that Respondent has been a member of the Senate since 1974 and has been its President pro tempore for approximately fifteen years.4 They further aver that on October 5, 2001, former Governor Tom Ridge resigned his position to assume the federal post of Director of the Office of Homeland Security in Washington, D.C. On that same date, then Lieutenant Governor Mark Schweiker was sworn in as Governor [825]*825of Pennsylvania, thus vacating the office of Lieutenant Governor. Also on that date, Respondent Jubelirer was sworn in as Lieutenant Governor in accordance with Article IV, Section 14 of the Pennsylvania Constitution of 1968 (Constitution), which provides as follows:

§ 14. Vacancy in office of Lieutenant Governor
In case of the death, conviction on impeachment, failure to qualify or resignation of the Lieutenant Governor, or in case he should become Governor under the preceding section, the President pro tempore of the Senate shall become Lieutenant Governor for the remainder of the term. In case of the disability of the Lieutenant Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. Should there be no Lieutenant Governor, the President pro tempore of the Senate shall become Governor if a vacancy shall occur in the office of Governor and in case of the disability of the Governor, the powers, duties and emoluments of the office shall devolve upon the President pro tempore of the Senate until the disability is removed. His seat as Senator shall become vacant whenever he shall become Governor and shall be filled by election as any other vacancy in the Senate.

In count one of the four-count petition, petitioners recognize that Article IV, Section 14 of the Constitution requires the President pro tempore of the Senate to assume the position of Lieutenant Governor at the time the existing Lieutenant Governor becomes Governor. They assert, however, that under Article IV, Section 6 of the Constitution Respondent is prohibited “from maintaining his office in the Senate” while occupying the post of Lieutenant Governor. (Petition for Review ¶ 19). Article IV, Section 6 pertinently states:

No member of Congress or person holding any office ... under the United States or this Commonwealth shall exercise the office of Governor, Lieutenant Governor or Attorney General,

(emphasis added). Petitioners argue, succinctly, that Respondent is prohibited from holding the office of Senator while he is at the same time the Lieutenant Governor. Petitioners assert further that, under Article II, Section 8 of the Constitution, Respondent is also prohibited from collecting an increased salary as Lieutenant Governor and that “the Lt. Governor’s annual salary .. .well exceeds his annual salary as Senator and President pro tempore of the Senate combined.” (Petition for Review ¶21). Article II, Section 8 pertinently states:

The members of the General Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either House shall during the term for which he may have been elected, receive any increase of salary, or mileage, under any law passed during such term.

Finally, Petitioners maintain that the Constitution does not authorize a Lieutenant Governor, who is a member of the Executive branch, to exercise the duties and powers of the President pro tempore of the Senate, who is a member of the Legislative branch. Petitioners contend that the “people of Pennsylvania have a right to a Lt. Governor without loyalties divided between the Executive and Legislative branches.” (Petition for Review ¶ 24).

Petitioners, in a prayer for relief repeated for each count, ask the Court to declare (1) that Respondent may not continue to hold the office of Senator and [826]*826President pro tempore, (2) that the senatorial seat for the 30th Senatorial District is vacant as a matter of law, and (3) that a special election is needed to fill the seat.

Count two of the petition is based on the concept of separation of powers. Petitioners aver that under Article II, Section 6 as well as Article IV, Section 6, it is unconstitutional for Respondent to exercise the duties of Senator, President pro tempore and Lieutenant Governor contemporaneously, and that to permit such an action to occur is against the public interest and creates conflicts of interest, divided loyalties, ethical issues and a co-mingling of duties. Article II, Section 6 provides as follows:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under this Commonwealth to which a salary, fee or perquisite is attached. No member of Congress or other person holding any office (except of attorney-at-law or in the national guard or in a reserve component of the armed forces of the United States) under the United States or this Commonwealth to which a salary, fee or perquisite is attached shall be a member of either House during his continuance in office.

Count three of the petition is based on Article IV, Section 2 of the Constitution, which vests the supreme executive power in the Governor. In this count Petitioners aver that, as a Senator, Respondent has the duty to advise the Governor on judicial appointments, see Article V, Section 13(b) and Article IV, Section 8(b), and to approve or disapprove the Governor’s choices for various cabinet positions and other like offices. Further, the Lieutenant Governor, who chairs the Board of Pardons, authorizes three gubernatorial appointments to that board subject to Senate approval. Petitioners aver that all of the various duties that Respondent now has give him power that “rivals that of the Governor” and that he “now essentially controls Pennsylvania’s Executive branch.” (Petition for Review ¶ 43, 46).

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Lawless v. Jubelirer
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Bluebook (online)
789 A.2d 820, 2002 Pa. Commw. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawless-v-jubelirer-pacommwct-2002.