PA Senate Intergovernmental Operations Committee v. PA DOS ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Senate :
Intergovernmental Operations :
Committee, :
Petitioner :
:
v. : No. 95 M.D. 2022
: Argued: September 12, 2022
Pennsylvania Department of State :
and Leigh Chapman, in her Capacity :
as Acting Secretary of the :
Commonwealth, :
Respondents :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: February 9, 2023
In this original jurisdiction matter, the Pennsylvania Senate
Intergovernmental Operations Committee (Senate Committee or Committee) has
filed a petition for review against the Pennsylvania Department of State
(Department) and Leigh Chapman, Acting Secretary of the Commonwealth
(collectively, Acting Secretary), seeking a writ of mandamus to compel the Acting
Secretary to comply with her statutory duty to produce certain election-related
records in the possession of the Department. Alternatively, the Senate Committee
seeks an order compelling the Acting Secretary to comply with the Committee’s
subpoena duces tecum for these election-related documents.
Intervention was granted to Senator Jay Costa, Senator Anthony H.
Williams, Senator Vincent J. Hughes, Senator Steven J. Santarsiero, and the Senate
Democratic Caucus (collectively, Senator Intervenors) and to Roberta Winters,
Nichita Sandru, Kathy Foster-Sandru, Robin Roberts, Kierstyn Zolfo, Michael
Zolfo, Ben Bowens, the League of Women Voters of Pennsylvania, Common Cause
Pennsylvania, and Make the Road Pennsylvania (collectively, Voter Intervenors).
The Acting Secretary has filed preliminary objections to the petition for
review, seeking its dismissal. Senator Intervenors have filed a preliminary objection
challenging the Senate Committee’s ability to seek a writ of mandamus without a
vote of the Senate Committee. For its part, the Senate Committee has filed an
application for summary relief seeking a writ of peremptory mandamus to compel
the Acting Secretary to produce election-related records in the custody of the
Department.
For the reasons to follow, we dismiss the petition for review. In doing
so, we overrule the preliminary objection challenging the Senate Committee’s
capacity to sue; we sustain the preliminary objection in the nature of a demurrer; and
we deny the Senate Committee’s application for summary relief.
Background
The Senate Committee is a permanent standing committee of the Senate
of Pennsylvania, with the responsibility to review “the work of the Commonwealth
agencies concerned with their subject areas and the performance of the functions of
government within each such subject area[.]” Petition for Review, ¶¶4, 6. The
Senate Committee is made up of nine senators and the Senate President Pro
Tempore, who serves ex officio as a voting member. The Committee is empowered
“to inspect and investigate the books, records, papers, documents, data, operation
and physical plant of any public agency in this Commonwealth” and “may issue
subpoenas, subpoenas duces tecum and other necessary process to compel the
attendance of witnesses and the production of any books, letters or other
documentary evidence desired by the committee.” Id., ¶7.
2
On September 9, 2021, the Committee held a public hearing on
potential election law amendments where it heard testimony from county
commissioners on the information and directives provided by then-Acting Secretary
of the Commonwealth, Veronica Degraffenreid. Id., ¶¶13, 16. The Acting Secretary
provided written testimony.
On September 15, 2021, the Committee voted to issue a subpoena duces
tecum to the Acting Secretary to produce 17 categories of election-related
documents, that included, inter alia, communications from the Department to a
County Election Director or County Election Board between May 1, 2020, and May
31, 2021; all directives, guidances, policies or procedures in effect between August
1, 2020, and June 30, 2021, relating to elections, election systems, mail-in ballot
applications, voting, compliance with election laws, polling places, and/or poll
watchers; all changes to voter records made between May 31, 2020, and May 31,
2021; and a list of all electors who voted in person, by mail-in ballot, and by absentee
ballot in the November 2020 General Election and in the May 2021 Primary
Election. Petition for Review, ¶17, Exhibit A. The subpoena requested the voter
information contained in the Statewide Uniform Registry of Electors (SURE)1
system, i.e., voters’ names, addresses, dates of birth, and last four digits of their
social security numbers. Id., ¶18. The subpoena duces tecum was served upon the
Acting Secretary on that same day, requesting delivery of documents to counsel for
the Senate Republican Caucus on October 1, 2021. Id., ¶21.
In response, the Acting Secretary filed a petition for review against the
Senate Committee Chairman, the Senate President Pro Tempore, and the Senate
1
25 Pa. C.S. §1222. The SURE system allows for electronic searching for registered voters by
name and party and permits a signature to be retrieved for comparison to confirm registration
status. Additionally, the SURE system allows for identification of registered voters who vote in
an election and the method by which their ballots were cast.
3
Committee to enjoin enforcement of the subpoena. See Pennsylvania Department
of State v. Coleman (Pa. Cmwlth., No. 322 M.D. 2021).2 The petition alleged, inter
alia, that the requested documents compromised the informational privacy rights of
registered voters, the deliberative process privilege, and critical infrastructure
information under federal law. Petition for Review, ¶22. Nevertheless, the Acting
Secretary produced some of the subpoenaed documents, in redacted form, on
November 18, 2021, December 24, 2021, and January 27, 2022. Id., ¶26.
On March 11, 2022, the Senate Committee filed its own petition for
review to compel the Acting Secretary by writ of mandamus to allow the
Committee’s inspection of the “books, papers, records, and accounts filed in the
department.” Id., ¶2. In the alternative, the Senate Committee sought to compel the
Acting Secretary to comply with the September 15, 2021, subpoena duces tecum.
In response, the Acting Secretary filed preliminary objections seeking
a dismissal of the petition for review. She asserts that the Senate Committee lacks
capacity to sue; its pleading is legally insufficient; and its pleading failed to join
indispensable parties.3 Senator Intervenors’ preliminary objection asserts that the
Committee lacks enforcement authority.
On May 13, 2022, the Senate Committee filed an application for
summary relief in the nature of a peremptory mandamus. The Committee asserts
that Section 802 of The Administrative Code of 1929, Act of April 9, 1929, P.L.
2
Additionally, Senator Intervenors filed a petition for review in the nature of injunctive and
declaratory relief to prevent enforcement of the subpoena. See Costa v. Ward (Pa. Cmwlth., No.
310 M.D. 2021). Individuals, Arthur Haywood and Julie Haywood, also filed a petition against
Acting Secretary Chapman challenging the subpoena and seeking declaratory and injunctive relief.
Haywood v. Chapman (Pa. Cmwlth., No. 323 M.D. 2021).
3
The Acting Secretary did not brief the issue of failure to join indispensable parties. A party
waives a preliminary objection it does not support in its brief. Phantom Fireworks Showrooms,
LLC v. Wolf, 198 A.3d 1205, 1219 (Pa. Cmwlth. 2018).
4
177, as amended, 71 P.S. §272, and Section 1 of the Act of March 12, 1791 (Act of
1791), 3 Sm.L. 8, 71 P.S. §801, require the Secretary of the Commonwealth to permit
any legislative committee to inspect and examine any books, papers, records, and
accounts filed in the Department or in possession of the Acting Secretary.
Alternatively, the Senate Committee argues that it is entitled to summary relief in
the form of peremptory mandamus to enforce its subpoena duces tecum.
The Acting Secretary, Voter Intervenors, and Senator Intervenors
oppose the Senate Committee’s application for summary relief. The Acting
Secretary argues that the Committee is not entitled to a writ of mandamus because
the law is not clear that she has a mandatory duty to provide access to the materials
requested by the Senate Committee. A request for voter registration information in
the SURE system requires the Secretary of the Commonwealth to exercise discretion
to balance the informational privacy interest of registered voters against the public
interest in disclosure, as required by Article I, Section 1 of the Pennsylvania
Constitution.4 Senator Intervenors argue that because the Senate Committee did not
take a vote to initiate the instant petition for review, its petition for review was not
authorized.
I. Preliminary Objections
A. Scope and Standard of Review of Preliminary Objections
On preliminary objections, our scope of review is limited to the
pleadings. Pennsylvania State Lodge, Fraternal Order of Police v. Department of
4
It states:
All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
PA. CONST. art. I, §1.
5
Conservation and Natural Resources, 909 A.2d 413, 415 (Pa. Cmwlth. 2006). We
must accept as true the well-pled averments set forth in the Senate Committee’s
petition for review and any reasonable inferences deducible therefrom.
Pennsylvania State Troopers Association v. Commonwealth of Pennsylvania, 606
A.2d 586, 587 (Pa. Cmwlth. 1992). This principle does not extend to legal
conclusions asserted in the pleading. Mazur v. Cuthbert, 186 A.3d 490, 502 (Pa.
Cmwlth. 2018).
Pennsylvania Rule of Civil Procedure 1028(a) sets forth the bases upon
which a party may preliminarily object to a pleading. Those grounds are:
(1) lack of jurisdiction over the subject matter of the action or
the person of the defendant, improper venue or improper
form or service of a writ of summons or a complaint;
(2) failure of a pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter;
(3) insufficient specificity in a pleading;
(4) legal insufficiency of a pleading (demurrer);
(5) lack of capacity to sue, nonjoinder of a necessary party or
misjoinder of a cause of action;
(6) pendency of a prior action or agreement for alternative
dispute resolution;
(7) failure to exercise or exhaust a statutory remedy; and
(8) full, complete and adequate non-statutory remedy at law.
PA.R.CIV.P. 1028(a).
B. Senator Intervenors’ Preliminary Objection
Senator Intervenors seek dismissal of the petition for review for the
stated reason that the Senate Committee lacks enforcement authority. They contend
that the Committee chair did not have the authority to initiate a mandamus action in
the name of the Committee.
6
In support, Senator Intervenors direct us to Senate Rule 14(d)(3), which
provides:
In order to carry out its duties, each standing committee or
special committee . . . may issue subpoenas, subpoenas duces
tecum and other necessary process to compel the attendance of
witnesses and the production of any books, letters or other
documentary evidence desired by the committee. The chair may
administer oaths and affirmations in the manner prescribed by
law to witnesses who shall appear before the committee to testify.
RULES OF THE SENATE OF PENNSYLVANIA, Rule 14(d)(3) (2021-2022);
https://www.pasen.gov/rules.cfm (last visited February 9, 2023) (emphasis added).5
Further, Mason’s Manual of Legislative Procedure6 provides that enforcement
power is vested in the committee as a whole. It states, in relevant part, as follows:
The presence of a quorum is required in order for a committee to
act legally and officially. A committee cannot legally transact
business and it is irregular to proceed to the consideration of
business in the absence of a quorum.
MASON’S MANUAL OF LEGISLATIVE PROCEDURE §613(1) (2010). In further support,
Senator Intervenors cite Eastland v. United States Servicemen’s Fund, 421 U.S. 491,
505 (1975) (“It also has been held that the subpoena power may be exercised by a
committee acting, as here, on behalf of one of the Houses.”) (citation omitted).
The Senate Committee responds that “lack of enforcement authority”
is not an enumerated preliminary objection and, thus, this objection is facially
5
On January 3, 2023, the Senate adopted the Rules of the Senate for the governing of the 207th
and 208th Regular Session. See Senate Resolution No. 3, adopted January 3, 2023;
https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=20
23&sessInd=0&billBody=S&billTyp=R&billNbr=0003&pn=0003 (last visited February 9, 2023).
6
Senate Rule 26 provides that Mason’s Manual of Legislative Procedure governs “the Senate in
all cases to which [it is] applicable, and in which [it is] not inconsistent with the Standing Rules,
Prior Decisions and Orders of the Senate.” RULES OF THE SENATE OF PENNSYLVANIA (2021-2022),
Rule 26; see also 101 Pa. Code §7.32.
7
defective. See PA.R.CIV.P. 1028(a)-(b). In any case, the challenge of Senator
Intervenors is non-justiciable because it is predicated on the failure of the General
Assembly to adhere to its own rules. See Jubelirer v. Singel, 638 A.2d 352, 360 (Pa.
Cmwlth. 1994) (alleged deprivation of the right to vote on “how the Senate conducts
its business” involved a non-justiciable controversy). In Dintzis v. Hayden, 606 A.2d
660 (Pa. Cmwlth. 1992), the petitioner brought a claim against several
representatives for their alleged violation of House voting rules. This Court held it
would “not adjudicate the issue because the violations of the House’s own internal
rules do not present a justiciable controversy,” and “if those rules have not been
followed it is up to the House, not this Court, to remedy the situation.” Id. at 662.
The Senate Committee argues that Senator Intervenors’ assertion that the Committee
has not followed Senate rules presents a non-justiciable claim.
We agree that “lack of enforcement authority” is not a specifically
enumerated preliminary objection in PA.R.CIV.P. 1028(a). See also PA.R.CIV.P.
1028(b).7 We construe “lack of enforcement authority” to mean “lack of capacity to
sue” under PA.R.CIV.P. 1028(a)(5), which is an enumerated preliminary objection.
Essentially, Senator Intervenors argue that neither the Senate Committee Chairman
nor the Senate Committee has the “capacity” to bring this action without a vote by
the entire Committee.
A non-justiciable political question is presented where there is a
challenge to legislative action which the Constitution has committed exclusively to
the legislature. Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977). Courts will not
review actions of another branch of government that have been entrusted exclusively
7
It states: “All preliminary objections shall be raised at one time. They shall state specifically the
grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised
in one pleading.” PA.R.CIV.P. 1028(b) (emphasis added).
8
to that branch for self-monitoring. Id. at 706. In deciding whether a dispute concerns
a non-justiciable political question, the Pennsylvania Supreme Court in Sweeney
adopted the standards enunciated in Baker v. Carr, 369 U.S. 186 (1962) (Baker).
Therein, the United States Supreme Court explained the political question doctrine
as follows:
It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may
describe a political question, although each has one or more
elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held
to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question.
Id. at 217 (emphasis added). The presence of any one of these elements will prompt
a court to refrain from considering the claim asserted. Zemprelli v. Daniels, 436
A.2d 1165, 1169 (Pa. 1981).
In sum, Baker established that the legislature’s compliance with its
internal rules and procedures presents a political question and, as such, is non-
justiciable. Courts cannot interfere with the internal workings of the legislature
“without expressing lack of the respect due coordinate branches of government.”
Baker, 369 U.S. at 217.
9
With these principles in mind, we turn to Senator Intervenors’ argument
that the Senate Committee lacked capacity to file the instant petition for review
seeking a writ of mandamus. This argument is based on Senate Rule 14(d)(3) and
Mason’s Manual of Legislative Procedure. Senator Intervenors claim that they do
not ask the Court “to peer behind the curtain of the inner workings of a legislative
body.” Senator Intervenors Reply Brief at 2. We disagree.
Deviation from Senate rules is a matter for the Pennsylvania Senate, not
this Court. See Dintzis, 606 A.2d 660 (claim that a member of the Pennsylvania
House of Representatives violated House rules by manipulating his electronic roll
call device presented a non-justiciable political question); Ritter v. Commonwealth,
548 A.2d 1317 (Pa. Cmwlth. 1988), aff’d per curiam, 557 A.2d 1064 (Pa. 1989)
(Pennsylvania House of Representatives has exclusive power over its internal affairs
and proceedings and courts will not review the legislature’s internal affairs).
Whether the Senate Committee followed the internal operating rules of the Senate
for initiating this instant action is for the Senate, not this Court, to review and to
remedy.
Accordingly, we overrule Senator Intervenors’ preliminary objection
that the Senate Committee lacks enforcement authority.
C. Acting Secretary’s Preliminary Objections
1. Lack of Capacity to Sue
The Acting Secretary argues that this Court should dismiss the Senate
Committee’s petition for review because neither the Senate as a body nor the Senate
Committee has authorized a civil action to enforce the subpoena duces tecum. The
Acting Secretary adds that Pennsylvania Rule of Civil Procedure 2002(a) requires
that “all actions shall be prosecuted by and in the name of the real party in interest[.]”
PA.R.CIV.P. 2002(a). The Senate Committee Chairman is not a real party in interest.
10
Only the Senate Committee can decide whether or how to enforce its subpoena, and
its Chairman has no authority to bring suit in the name of the Committee on his own
initiative.
The Senate Committee responds that the Acting Secretary’s
preliminary objection misapprehends capacity to sue, which requires that “a would-
be plaintiff must have an actual or legal existence.” Senate Committee Brief at 26
(citing Philadelphia Facilities Management Corporation v. Biester, 431 A.2d 1123,
1127 (Pa. Cmwlth. 1981)). “The plaintiff may be a natural or artificial person,” but
as long as it is “an entity which the law recognizes[,]” it has the capacity to sue.
Biester, 431 A.2d at 1127. The Senate Committee observes that the Acting Secretary
does not suggest that the Senate Committee lacks the power to appear in court. See
In re Estate of Sauers, 32 A.3d 1241, 1248 (Pa. 2011) (capacity to sue refers to the
legal ability of a person to come into court). Indeed, Senator Intervenors named the
Senate Committee as a defendant in their equity action. See Costa v. Ward (Pa.
Cmwlth., No. 310 M.D. 2021). The Senate Committee also contends that the Acting
Secretary’s argument that this instant action is not prosecuted by the real party in
interest must be rejected because it was not raised by separate preliminary objection.
In any case, the Senate Committee contends that the argument lacks merit.
As acknowledged by the Acting Secretary, the “real party in interest”
is “a person who has the power to discharge the duties created and to control a cause
of action and the proceedings brought to enforce it.” Acting Secretary Brief at 6
(quoting Lore v. Sobolevitch, 675 A.2d 805, 808 (Pa. Cmwlth. 1996)). The concept
of real party in interest is related to standing, which “is concerned only with the
question of who is entitled to make a legal challenge to the matter involved.”
Pennsylvania Game Commission v. Department of Environmental Resources, 555
11
A.2d 812, 815 (Pa. 1989) (emphasis in original). Our Supreme Court has further
explained:
Although our law of standing is generally articulated in terms of
whether a would-be litigant has a “substantial interest” in the
controverted matter, and whether he has been “aggrieved” or
“adversely affected” by the action in question, we must remain
mindful that the purpose of the “standing” requirement is to
insure that a legal challenge is by a proper party.
Pennsylvania Game Commission, 555 A.2d at 815.
The Senate Committee argues that it is the real party in interest and
entitled to challenge the Acting Secretary’s refusal to comply with the subpoena
duces tecum. We agree. No other person can enforce its subpoena, and the
Committee has a substantial interest in obedience to its subpoena. Although Rule
2002(a) of the Pennsylvania Rules of Civil Procedure, PA.R.CIV.P. 2002(a), does
not define “real party in interest,” it is the person with the power “to control the
prosecution of the action brought to enforce rights arising under the claims.” Clark
v. Cambria County Board of Assessment Appeals, 747 A.2d 1242, 1246 n.9 (Pa.
Cmwlth. 2000). The Senate Committee is the party in command of the action and,
accordingly, the real party in interest.
The Senate Committee has an interest in securing the materials it has
requested from the Department; is the party to determine whether the Acting
Secretary has complied with the subpoena; and is the party that can withdraw this
action. Further, the verification to the petition for review did not make its Chairman
the real party in interest.8 Because a legislative committee is not a natural person, it
8
As noted by the Senate Committee, its Chairman was permitted to verify the petition for review
on the Committee’s behalf. See RULES OF THE SENATE OF PENNSYLVANIA (2021-2022), Rule 15(d)
(“The Chair shall sign all notices, vouchers, subpoenas or reports required or permitted by these
Rules.”).
12
cannot affix a signature and must rely on the verification of a natural person, such
as its Chairman. See generally Lokay v. Lehigh Valley Cooperative Farmers, Inc.,
492 A.2d 405 (Pa. Super. 1985) (fictional legal person such as a corporation must
act through its officers, directors, or other agent).
Finally, the internal decision-making of the Senate Committee on
whether, or how, to enforce its subpoena duces tecum is non-justiciable and beyond
this Court’s review. The legislature may delegate its powers to a committee and
authorize it to issue subpoenas in connection thereto. Annenberg v. Roberts, 2 A.2d
612, 616 (Pa. 1938). The legislature has power to legislate in the area of elections.
Mixon v. Commonwealth, 759 A.2d 442, 449 (Pa. Cmwlth. 2000) (citing Winston v.
Moore, 91 A. 520 (Pa. 1914) (“The power to regulate elections is legislative, and
has always been exercised by the lawmaking branch of the government.”)).
Accordingly, we overrule the Acting Secretary’s preliminary objection
that the Senate Committee lacks capacity to sue.
2. Demurrer to Writ of Mandamus
The Acting Secretary next argues that the Senate Committee is not
entitled to a writ of mandamus because it has no clear right to relief under Section
802 of The Administrative Code of 1929, 71 P.S. §272, or Section 1 of the Act of
1791, 71 P.S. §801. Mandamus does not lie because the duty in question is not
ministerial in nature.
The Acting Secretary observes that neither the Senate Committee nor
its Chairman has requested the Acting Secretary to produce documents pursuant to
Section 802 of The Administrative Code of 1929, 71 P.S. §272, or Section 1 of the
Act of 1791, 71 P.S. §801. The Committee’s subpoena duces tecum did not
reference either statute. In any case, responding to a legislative request for records
is not a ministerial act because the legislature seeks voter registration information
13
that involves an informational privacy interest. The Acting Secretary must do a
balancing of that informational privacy interest with the public interest before
disclosing the information and only after the Senate Committee demonstrates a valid
legislative purpose for its request.
The Senate Committee acknowledges that it did not cite The
Administrative Code of 1929 or the Act of 1791 in its subpoena duces tecum.
However, it argues that the Acting Secretary’s duty under those statutes is not
contingent on the Senate Committee’s written citation thereto and, further, the
absence of precedent on these two statutes does not mean that the right of the Senate
Committee is not clear. As explained by the Pennsylvania Supreme Court,
“mandamus will lie to compel performance by a public official of a legal duty even
if the existence and/or scope of the duty must be found and defined in the mandamus
action itself.” Volunteer Firemen’s Relief Association of City of Reading v.
Minehart, 203 A.2d 476, 479 (Pa. 1964). Here, the statutes are clear that the Senate
Committee has an unqualified right to inspect and examine all records held by the
Department, and the Committee need not demonstrate that its request has a valid
legislative purpose. Agencies must respond to information requested by the
legislature. See Thornburgh v. Lewis, 470 A.2d 952, 957-58 (Pa. 1983) (Governor
required to respond to information demanded by minority chairman of Senate
committee under The Administrative Code of 1929 providing access to information),
affirming Lewis v. Thornburgh, 462 A.2d 310, 318 (Pa. Cmwlth. 1983) (“request by
any of the appropriations committee chairmen, majority or minority, is sufficient to
require the submission of the budgetary data” because “openness of information in
government is to be encouraged, emphasized, and, if necessary, required”).
We begin with a review of the principles of mandamus. A writ of
mandamus is an extraordinary remedy that seeks to compel the performance of a
14
ministerial act or mandatory duty by a public official. Rosario v. Beard, 920 A.2d
931, 934 (Pa. Cmwlth. 2007). Mandamus cannot compel the public official to
exercise discretion in a particular way. Nader v. Hughes, 643 A.2d 747, 752 n.13
(Pa. Cmwlth. 1994). A writ of mandamus requires a clear legal right to relief in the
petitioner, a corresponding duty in the respondent, and a lack of any other
appropriate or adequate remedy. McGill v. Pennsylvania Department of Health,
Office of Drug and Alcohol Programs, 758 A.2d 268, 270 (Pa. Cmwlth. 2000). “A
mandatory duty is one which a public officer is required to perform upon a given
state of facts and in a prescribed manner in obedience to the mandate of legal
authority.” Chester Community Charter School v. Department of Education, 996
A.2d 68, 75 (Pa. Cmwlth. 2010) (quotation omitted).
Section 802(a) of The Administrative Code of 1929 requires the Acting
Secretary to provide a legislative committee with documents filed with the
Department. Section 802(a) states as follows:
The Department of State shall have the power and its duty shall
be:
(a) To permit any committee of either branch of the General
Assembly to inspect and examine the books, papers, records, and
accounts, filed in the department, and to furnish such copies or
abstracts therefrom, as may from time to time be required[.]
71 P.S. §272(a) (emphasis added). Section 1 of the Act of 1791, states, in relevant
part, as follows:
The following duties be enjoined on the secretary of the
commonwealth, in addition to those prescribed in the
constitution: . . . Fourth, The books, papers and accounts of the
secretary shall be open to the inspection and examination of
committees of each branch of the legislature, and secretary shall
furnish such copies, or abstracts, therefrom, as may from time to
time be required.
15
71 P.S. §801 (emphasis added). Both statutes state a mandate. The Department
“shall” permit “any committee” “to inspect and examine the books, papers, records,
and accounts, filed in the department,” 71 P.S. §272(a), and the Secretary of the
Commonwealth “shall” open all accounts and records to committees of the
legislature. 71 P.S. §801. Neither statute requires the legislative committee to
present its request in a particular form as a prerequisite to the document inspection.
The Pennsylvania Election Code9 permits the inspection of all data and
figures within voting machines “by direction of any legislative committee.”
Specifically, Section 1230 of the Election Code states as follows:
As soon as possible after the completion of the count in districts
in which voting machines are used, the county board shall have
the voting machines properly boxed, and removed to the place of
storage provided for in this act. The voting machines shall
remain locked against voting for the period of twenty days next
following each primary and election, and as much longer as may
be necessary or advisable because of any existing or threatened
contest over the result of the primary or election, with due regard
for the date of the next following election or primary, except that
they may be opened and all the data and figures therein
examined under the provisions of this act, by order of any court
of competent jurisdiction, or judge thereof, or by direction of any
legislative committee to investigate and report upon contested
primaries or elections affected by the use of such machines, and
such data and such figures shall be examined by such committee
in the presence of the officer having the custody of such
machines.
25 P.S. §3070 (emphasis added). Section 1230 underscores the power of a
legislative committee to inspect election-related materials, at either the county or
state level, or both.
9
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
16
The Court need not decide whether the Acting Secretary must provide
the subpoenaed records to the Senate Committee pursuant to Section 802 or Section
1. The existence of another legal remedy precludes the issuance of a writ of
mandamus.
Article II, Section 11 of the Pennsylvania Constitution states as follows:
Each House shall have power to determine the rules of its
proceedings and punish its members or other persons for
contempt or disorderly behavior in its presence, to enforce
obedience to its process, to protect its members against violence
or offers of bribes or private solicitation, and, with the
concurrence of two-thirds, to expel a member, but not a second
time for the same cause, and shall have all other powers
necessary for the Legislature of a free State. A member expelled
for corruption shall not thereafter be eligible to either House, and
punishment for contempt or disorderly behavior shall not bar an
indictment for the same offense.
PA. CONST. art. II, §11 (emphasis added). The Pennsylvania Supreme Court has
recognized that “[a]s long ago as 1842 the General Assembly provided that each
branch of the legislature shall have the subpoena power and the power to commit to
prison ‘any witness brought to the bar of either house (who) shall refuse . . . to render
an answer to all legal questions duly propounded.’” Commonwealth ex rel. Carcaci
v. Brandamore, 327 A.2d 1, 5 (Pa. 1974) (citing Section 1 of the Act of June 13,
1842, P.L. 491, 46 P.S. §6110). It held, further, that the legislature’s process provided
the reluctant witness with due process of law.
10
It states:
Each branch of the legislature shall have the power to issue their subpoena, as
heretofore practiced, into any part of the commonwealth, and by attachment to
compel the attendance of all persons summoned as witnesses, and in case any
witness brought to the bar of either house shall refuse to be sworn or affirmed, or
having been sworn or affirmed, shall refuse to render an answer to all legal
questions duly propounded, the speaker of the house before which such refusal shall
be made, shall have full power by the direction of the said house to issue to the
17
An adequate remedy at law can be common law action, such as a tort
action or a statutory remedy. Sewell v. Solomon, 465 A.2d 130, 132 (Pa. Cmwlth.
1983). An appeal on the merits after a final judgment also precludes an action in
mandamus. Hoyt v. Pennsylvania Department of Corrections, 79 A.3d 741, 743 (Pa.
Cmwlth. 2013). In Watters v. Department of Corrections, 509 A.2d 430, 433 (Pa.
Cmwlth. 1986), this Court held that the inmate grievance review system constituted
a legal remedy that barred a writ of mandamus. The Senate Committee argues that
a remedy at law is limited to a quasi-judicial or judicial remedy, not a legislative
remedy provided by the Pennsylvania Constitution. We disagree. An inmate
grievance review system is a remedy that bars mandamus, even though it does not
result in an order than can be appealed to a court.
The Senate Committee has express constitutional authority to enforce
its subpoena duces tecum. PA. CONST. art. II, §11. It may enforce its subpoena in
accordance with the contempt statutes. 18 Pa. C.S. §5110; 46 P.S. §61. These
constitutional and statutory remedies preclude the Senate Committee’s request for a
writ of mandamus. McGill, 758 A.2d at 270.
sergeant-at-arms a warrant of commitment to the prison of Dauphin county, the
inspectors and keepers thereof are hereby authorized and required to receive and
confine such delinquent so committed until discharged in due course; and the
expense of such imprisonment shall be paid out of any money in the state treasury
not otherwise appropriated.
46 P.S. §61 (emphasis added). Further,
[i]f any such person so committed to prison, shall persist in his refusal to swear or
affirm, or being sworn or affirmed shall still, on being brought before such house
from the prison, refuse to testify, such house may make a further order for the
detention of such delinquent in said prison until the next succeeding legislature
shall have met, and until the proper house succeeding the one which ordered the
commitment originally, shall make an order for his further detention, or discharge
as to them shall seem expedient.
Section 2 of the Act of June 13, 1842, 46 P.S. §61a.
18
II. Senate Committee’s Application for Summary Relief
The Senate Committee argues that it is entitled to summary relief in
the form of peremptory mandamus because the Acting Secretary has a mandatory
duty to produce the subpoenaed information under Section 802(a) of The
Administrative Code of 1929 and Section 1 of the Act of 1791.
In evaluating an application for summary relief, the Court applies the
same standards that apply to summary judgment. Flagg v. International Union,
Security, Police, Fire Professionals of America, Local 506, 146 A.3d 300, 305 (Pa.
Cmwlth. 2016). Specifically, summary relief is appropriate where the moving
“party’s right to judgment is clear and no material issues of fact are in dispute.”
Jubelirer v. Rendell, 953 A.2d 514, 521 (Pa. 2008); PA.R.A.P. 1532(b).11
The Senate Committee chose to seek the election-related materials by
issuing a subpoena duces tecum using its constitutional powers. There is an
established route for enforcement of a legislative subpoena. PA. CONST. art. II, §11
(“Each House shall have power . . . to enforce obedience to its process[.]”). Similar
to the exercise of equity jurisdiction, the decision to issue a writ of mandamus is
committed to the sound discretion of the court. The Senate Committee’s
constitutional power precludes the issuance of a common law writ of mandamus to
enforce its subpoena.
Article II, Section 11 of the Pennsylvania Constitution provides, in
relevant part:
11
It states:
At any time after the filing of a petition for review in an appellate or original
jurisdiction matter, the court may on application enter judgment if the right of the
applicant thereto is clear.
PA.R.A.P. 1532(b).
19
Each House shall have power to determine the rules of its
proceedings and punish its members or other persons for
contempt or disorderly behavior in its presence, to enforce
obedience to its process, to protect its members against violence
or offers of bribes or private solicitation . . . and shall have all
other powers necessary for the Legislature of a free State.
PA. CONST. art. II, §11 (emphasis added). “Nothing is more important to the
continued health of our American constitutional system than that each of the three
branches of our Federal and State governments refrain from intermeddling or
interfering in matters committed by the people to other branches.” Sweeney v.
Tucker, 351 A.2d 308, 312 (Pa. Cmwlth. 1976). This Court has held that Article II,
Section 11 is a “textually demonstrable constitutional commitment of the issue [] to
a coordinate political department[.]” Id. at 312. There is no room for the judiciary
in a matter governed by Article II, Section 11 of the Pennsylvania Constitution.
The Senate Committee has chosen to seek the election-related materials
by legislative subpoena, and it is bound by that choice. The subpoena duces tecum
can be enforced by the legislature, and its constitutional power needs no
augmentation in the form of a common law writ of mandamus.
Conclusion
For the above reasons, we deny the Senate Committee’s application for
summary relief. We overrule the preliminary objections asserting lack of capacity
to sue, but we sustain the preliminary objection in the nature of demurrer and dismiss
the petition for review.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge McCullough, Judge Covey, Judge Fizzano Cannon and Judge Wallace did not
participate in the decision in this case.
Judge Wojcik concurs in the result only.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Senate :
Intergovernmental Operations :
Committee, :
Petitioner :
:
v. : No. 95 M.D. 2022
:
Pennsylvania Department of State :
and Leigh Chapman, in her Capacity :
as Acting Secretary of the :
Commonwealth, :
Respondents :
ORDER
AND NOW this 9th day of February, 2023, the application for summary
relief filed by the Pennsylvania Senate Intergovernmental Operations Committee is
DENIED. The preliminary objection filed by Intervenors, Senator Jay Costa,
Senator Anthony H. Williams, Senator Vincent J. Hughes, Senator Steven J.
Santarsiero, and the Senate Democratic Caucus, to Petitioner’s capacity to sue is
OVERRULED. The preliminary objection filed by the Pennsylvania Department of
State and Leigh Chapman, as Acting Secretary of the Commonwealth, to the
Pennsylvania Senate Intergovernmental Operations Committee’s capacity to sue is
OVERRULED, and the preliminary objection in the nature of a demurrer is
SUSTAINED. The petition for review is DISMISSED.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita