Zemprelli v. Daniels

436 A.2d 1165, 496 Pa. 247, 1981 Pa. LEXIS 996
CourtSupreme Court of Pennsylvania
DecidedOctober 28, 1981
Docket4, 30-37, 44-52, M.D. Misc. Docket 1981
StatusPublished
Cited by63 cases

This text of 436 A.2d 1165 (Zemprelli v. Daniels) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zemprelli v. Daniels, 436 A.2d 1165, 496 Pa. 247, 1981 Pa. LEXIS 996 (Pa. 1981).

Opinion

OPINION OF THE COURT

O’BRIEN, Chief Justice.

Petitioners in the instant action are five state senators who voted against the confirmation of Respondent Daniels as a member of the State Tax Equalization Board. Other respondents include 17 other successful nominees. Two state senators who voted to confirm respondents’ appointments and the Senate of the Commonwealth of Pennsylvania have been granted leave to intervene. Invoking our original jurisdiction pursuant to 42 Pa.C.S.A. § 721(3) (Purdon 1981), petitioners filed a Petition for Review in the Nature of Quo Warranto seeking to oust Respondent Daniels from her seat. Similar actions were filed against the other respondent nominees, and our decision in the initial action will be dispositive as to those as well. Having considered the matter presented in the petition, we uphold the validity of the challenged executive appointments and accordingly deny the relief requested by petitioners.

The events giving rise to this action, which are not in dispute, took place on the Senate floor during the 1981 Session of the 165th General Assembly. Governor Thorn-burgh nominated Respondent Daniels by a letter to the *250 Senate dated December 24, 1980. Initially, the nomination was tabled, but it was reconsidered on January 27, 1981, when a vote was taken. The affirmative votes of a majority of the members elected to the Senate were required to confirm her appointment under 71 P.S. § 67.1(d)(4) (Purdon Supp. 1981). The nomination received 25 “yeas” and 22 “nays,” and the President of the Senate, finding that the requisite vote of a constitutional majority had been obtained, ruled the appointment confirmed.

Respondent’s Zemprelli objected to the Chair’s ruling, arguing that the constitutional majority should be computed on the basis of the total number of members “elected” to the Senate, 50, rather than on the number then in office, 48, 1 and that consequently the affirmative vote of 25 senators was insufficient to seat Respondent Daniels. The President based his ruling on Senate Rule XXII, subparagraph 8, 104 Pa.Code § 11.22(i), which provides “[a] majority of the Senators elected shall mean a majority of the Senators elected, living, sworn, and seated.” Since 25 constituted a majority of the 48 senators then in office, the President ruled that Respondent Daniels’ nomination had achieved the majority vote mandated by Article IV, section 8(a) of the Pennsylvania Constitution. That section provides:

“The Governor shall appoint a Secretary of Education and such other offices as he shall be authorized to appoint. The appointment of the Secretary of Education and of such other officers as may be specified by law, shall be subject to the consent of two-thirds or a majority of the members elected to the Senate as is specified by law.

Petitioner Zemprelli appealed the Chair’s ruling and, after debate, the Senate sustained it by a vote of 25 to 22. Zemprelli’s subsequent motion for reconsideration of the nomination was defeated. This quo warranto action ensued.

It is evident from the foregoing that the entire controversy before us turns on a singlé question of constitutional *251 interpretation, namely the meaning of the phrase “a majority of the members elected to the Senate” in the context of Article IV, section 8. Before we may engage in such interpretation, however, we must first determine whether petitioners have standing to maintain this action. If we answer in the affirmative, we must then decide whether the dispute before this Court presents a “political question” not amenable to judicial review.

I. Standing

Challenges to petitioner’s standing to maintain the instant action, while not clearly articulated, have nonetheless been raised. Respondents allege that petitioners failed to plead the “special interest” required of private parties seeking to maintain a quo warranto action, 2 but in fact have an interest in the actions complained of no greater than that of the public at large.

We discussed this special interest requirement in Stroup v. Kapleau, 455 Pa. 171, 174, 313 A.2d 237, 238-239 (1973):

“An action in ‘[q]uo warranto can be instituted to determine the title to public office only by the Attorney General, the District Attorney or a private individual who has a special interest as distinguished from the interest of the public generally.’ Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 108, 232 A.2d 729, 733 (1967) (emphasis added). In Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933), this Court stated: ‘To invoke the issuance of a writ of quo warranto the relator, therefore, must show in himself an interest in the controversy. ... He must possess some peculiar, personal interest aside from his general interest as a member of the public.’ Id., 311 Pa. at 345, 166 A. at 879 (emphasis added). Article IV, section 8(a), of the Pennsylvania Constitution provides: ‘The Governor shall appoint an Attorney General, a Superintendent of Public Instruction *252 and such other officers as he shall be authorized 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.’ (Emphasis added.)
“Under the above constitutional provision, each member of the Senate has an individual right to confirm or reject certain gubernatorial appointments. Each Senator has an interest in such appointments aside from that Senator’s interest as a member of the general public. We, therefore, conclude that the appellants in this case, all members of the Senate of the Commonwealth of Pennsylvania, had standing to commence this action in quo warranto.”

Respondents argue that petitioners were afforded the opportunity to exercise their power as legislators by voting on the nomination, and, having voted, that their “special interest” ceased to exist. Where the voting process itself is not, as here, under attack, this argument might be persuasive. See e. g., Metcalf v. National Petroleum Council, 407 P.Supp. 257 (D.D.C.1976), aff’d, 553 F.2d 176 (D.C.Cir. 1977); Wilt v. Beal, 26 Pa.Cmwlth. 298, 363 A.2d 876 (1976); cf. Public Citizen v. Sampson, 379 F.Supp. 662 (D.D.C.1974), aff’d, 515 F.2d 1018 (D.C.Cir.1975). In Stroup v. Kapleau, supra, the appointments contested had been made without the advice and consent of the Senate.

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Bluebook (online)
436 A.2d 1165, 496 Pa. 247, 1981 Pa. LEXIS 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zemprelli-v-daniels-pa-1981.