Zimmerman, D., Aplts v. Schmidt, A.

• Court: Supreme Court of Pennsylvania
• Decided: September 25, 2024
• Docket: 63 MAP 2024
• Status: Published

Opinion

[J-80-2024] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

DAVID H. ZIMMERMAN AND KATHY L. : No. 63 MAP 2024 RAPP, : : Appeal from the Order of the Appellants : Commonwealth Court at No. 33 MD : 2024 dated August 23, 2024. : v. : SUBMITTED: September 9, 2024 : : 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 OF : ELECTIONS, 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 :

[J-80-2024] - 2 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 :

CONCURRING STATEMENT

JUSTICE BROBSON FILED: September 25, 2024

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

[J-80-2024] - 3 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.

[J-80-2024] - 4