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Pennsylvania Constitutional: Commentary and Comments* 2003-2004

The following timeline was prepared by Jeffrey Mansell.

Timeline of Ralph Nader ballot cases, Fall 2004

8/30/04 In re Nader, 856 A.2d 908 (Pa. Cmwlth. 2004):

The Commonwealth Court decided that, under the Pennsylvania Election Code, Ralph Nader was disqualified from Pennsylvania's ballots as an Independent candidate for president for two reasons:

1) He is already affiliated with another party on another state's ballot; and

2) the Secretary of the Commonwealth rejected signatures on the nomination papers for valid reasons.

The court construed the Election Code in order to reach its result, and in so doing relied on one provision in the Pennsylvania Constitution:

"The Election Code [ ] defines 'qualified elector' with reference to the criteria enumerated in the Pennsylvania Constitution pertaining to factors such as age, citizenship, and residency; [but] the definition does not contain an express requirement of voter registration. . . .

"The relevant constitutional provision [Article VII § 1] specifies that 'Every citizen 21 years of age [lowered to 18 years of age by the twenty-sixth amendment to the United States Constitution], possessing the following qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.

1. He or she shall have been a citizen of the United States at least one month.
2. He or she shall have resided in the State 90 days immediately preceding the election.
3. He or she shall have resided in the election district where he or she shall offer to vote at least 60 days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within 60 days preceding the election." (Pa. Const. Article VII § 1)

9/20/04 In re Nomination Papers of Nader, 858 A.2d 58 (Pa. 2004)

The Supreme Court of Pennsylvania issued a per curiam order reversing and vacating the order of the Commonwealth Court, and remanding the case for further consideration.

9/29/04 In re Nomination Papers of Nader, ___ A.2d ___, 2004 WL 2185351 (Pa. 2004) [the opinion companion to the per curiam order]

The Supreme Court of Pennsylvania decided that the "sore loser" statute in the Election Code, which provided that a candidate who is affiliated with one party cannot be listed on the ballot under another party, deprived Ralph Nader of his First Amendment right of association. Since the Commonwealth Court's decision was based, at least in part, on the Election Code, its order was reversed. However, on remand to the Commonwealth Court, Nader would still have to answer challenges to thousands of signatures on his nomination papers.

The sole reference to the Pennsylvania Constitution was in a concurring opinion:

Chief Justice Ralph Cappy's concurrence noted only that "it may be presumed that the General Assembly does not intent to violate the United States of Pennsylvania Constitutions."

10/13/04 In re Nader, ___ A.2d ___, 2004 WL 2339814 (Pa. Cmwlth. 2004)

In Commonwealth Court, several judges counted signatures on different portions of Ralph Nader's nomination papers. After the judges finished deciding the challenges to those signatures, the court issued this opinion, which included all the signature tallies and concluded that there were not enough valid signatures on Nader's nomination papers to allow his name on Pennsylvania's ballot.

The court once again referred to Article VII § 1 of the Pennsylvania Constitution cited every time it referred to the question of whether someone was a "qualified elector," which determined whether a signature was valid.

10/19/04 In re Nomination of Nader, ___ A.2d ___, 2004 WL 2341837 (Pa. 2004)

The Supreme Court of Pennsylvania issued a per curiam order affirming the order of the Commonwealth Court.

10/22/04 In re Nomination of Nader, ___ A.2d ___, 2004 WL 2368056 (Pa. 2004) (Saylor, J., dissenting statement)

[There was no majority opinion accompanying the per curiam order.] Justice Saylor dissented from the per curiam order. He cited Article VII § 1 to highlight the distinction between a qualified elector and a registered voter. The Commonwealth Court required the signatures on the nomination papers to be those of registered voters, when in fact they should have counted the signatures of anyone who was qualified under this constitutional provision.

According to Justice Saylor, the application of this standard would result in Nader's name being on Pennsylvania's ballot.

[The Commonwealth Court purported to recognize the difference between the two categories Justice Saylor described and apply the less stringent requirement. Moreover, it appears that the Commonwealth Court did not believe the result would have been different under either standard; the nomination papers would still come up short.]

An odd comment by Judge Colins, President Judge of the Commonwealth Court, in Rising Sun Entertainment, Inc. v. Pennsylvania Liquor Control Board, ___ A.2d ___, 2004 WL 2481264 (Pa. Cmwlth. 11/5/2004) raises a question about the relationship of Article I, section 7 of the Pennsylvania Constitution and the first amendment. In Rising Sun, a Commonwealth Court panel affirmed a fine for lewd entertainment at an establishment licensed to serve alcoholic beverages. The panel distinguished Pap's A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002) on the ground that the issuance of a liquor license conditioned on the prohibition of lewd entertainment violates neither the first amendment nor Article I, section 7. Judge Colins' opinion, however, also notes that "the Twenty-first Amendment to the United States Constitution gives the states the absolute power over the conditions under which liquor is sold within their borders... ." While the amendment might be relevant to a federal, first amendment discussion, the Twenty-first Amendment presumably does not give to the states any authority prohibited by a state's own constitution.

Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) seems to have clarified, at least in its footnotes, the status of substantive due process review in Pennsylvania and possibly equal protection as well. Justice Nigro's opinion, opposed on these points expressly by Justice Eakin's dissent, states that rights under Article I, section 1, of the Pennsylvania Constitution are to be analyzed as follows. Some rights, apparently those familiar in federal constitutional analysis, are fundamental and are to be reviewed under traditional strict scrutiny review. On the other hand, the remaining rights in section 1 are to be reviewed under a "rational basis" standard unique to Pennsylvania and expressly different from federal rational basis review. Government action in Pennsylvania is unconstitutional if it is "unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained." [Quoting Gambone v. Commonwealth, 101 A.2d 634, 637 (Pa. 1954).] Despite Justice Nigro's assurance that such government action is still to be presumed constitutional, the importance of the Gambone standard is spelled out in Nixon--it is expressly a "more restrictive rational basis test" than that utilized under federal law and the standard is the basis for decision in Nixon itself, in which the court strikes down legislation disqualifying certain persons with criminal records from employment in facilities catering to older adults. It is hard to imagine the United States Supreme Court reaching the same conclusion under federal due process. The Nixon case is all the more significant because the rights guaranteed pursuant to Article I, section 1, are so broad--"men...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."

***Any hope that the Pennsylvania Supreme Court would retain the clarity of review under due process that it achieved in Nixon was set back in Khan v. State Board of Auctioneer Examiners, 842 A.2d 936 (Pa. 2004). Khan upheld the constitutionality of the reciprocal discipline provision of the Auctioneer and Auction Licensing Act against a substantive due process challenge. The Court acknowledged the "real and substantial relationship" test authorized by the Nixon case. But, whereas the court in Nixon specifically held that this due process test is "a more restrictive rational basis test" than is used under federal due process review, the court in Khan stated that the "real and substantial relationship [standard] is a stronger test than the rational basis test employed in an equal protection analysis." The court cited Nixon for this proposition, which was not the holding or reasoning in Nixon. Thus the relationship of State and federal due process is once more muddled in Pennsylvania constitutional jurisprudence.

****The continuing authority of Nixon was illustrated in Warren County Human Services v. State Civil Service Commission, 844 A.2d 70, 2003 WL 23315459 (Pa. Cmwlth., March 8, 2004), in which a three-judge panel of the Commonwealth Court struck down a section of Child Protective Services Law prohibiting the hiring of applicants previously convicted of certain crimes. In Warren County, relief was granted to a county employee who had been removed from a position in the Department of Human Services because of a 20-year old conviction for aggravated assault.

As illustrated in Pennsylvania Turnpike Commission v. Commonwealth, ___ A.2d ___, 2004 WL 1698635 (Pa. Cmwlth July 30 2004), Equal Protection analysis under the Pennsylvania Constitution is no more predictable, nor comprehensible, than is due process review. In the Turnpike Commission case, a panel of Commonwealth Court struck down the First-Level Supervisor Collective Bargaining Act, which had required the Commission, but no other public employer, to engage in collective bargaining with a group of its employees. Judge McGinley found the Act to be a prohibited "special law" under Article III, section 32. The court acknowledged that section 32 includes "principles of equal protection under the law" citing the federal fourteenth amendment. The case illustrated a classic example of rational basis review since neither fundamental rights nor suspect classifications were involved. The court even propounded a test for such legislation that sounded like federal rational basis review-whether the legislation promotes a legitimate state interest and whether the classification is reasonably related to accomplishing that interest.

The problem with applying this standard to strike down this legislation, which the court did, is that the Act was plainly rational as that term is understood under federal equal protection. The court struck down the Act essentially because there was no reason to treat Turnpike Commission employees differently from employees of any other public employer. While that is obviously true, federal equal protection under rational basis review allows just this sort of step by step approach. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ("Legislatures may implement their program step by step…in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.")

The Turnpike Commission case illustrates that, just as in due process review, there is a different application of equal protection principles under the Pennsylvania Constitution than under the federal constitution. While obviously the Pennsylvania courts are free to provide such greater protections, the failure of the courts to confront the differences between state and federal law directly and expressly leaves the extent of the divergence undetermined. All laws differentiate and almost all laws are either under or over inclusive to some extent. Nevertheless, not all laws subject to these objections are going to be held unconstitutional. One of the unanswered questions of Pennsylvania constitutional law is how far the courts are going to go in rational basis review. The Pennsylvania Supreme Court could go far in clarifying this question by allowing review in the Turnpike Commission case.

[The judgment of the Commonwealth Court was affirmed in Pennsylvania Turnpike Com'n v. Com,, 587 Pa. 347, 899 A.2d 1085 (2006).]

The decision by Judge Lisa Rau in the Philadelphia Court of Common Pleas that victims of police brutality may sue local municipalities under the Pennsylvania Constitution despite immunity provisions in the Political Subdivision Tort Claims Act (Jones v. City of Philadelphia) raises fundamental issues of government immunity in Pennsylvania for civil rights claims. Although Judge Rau regarded the issue as one of first impression, there have been a scattering of decisions in various courts over the years concerning civil causes of action under the Pennsylvania Constitution and principles of immunity. Judge Rau's opinion is certain to be reviewed and perhaps these matters will finally receive the judicial attention they deserve.

Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004): Justice Castille, joined by Justices Eakin and Baer, concurs in the majority analysis concerning canine drug sniffs, but argues that the court should abandon prior caselaw in this area and "should return to a traditional totality of the circumstances approach". Chief Justice Cappy's majority opinion does not reject Justice Castille's suggestion but concludes that Rogers is not the proper case to undertake a full analysis of the canine search issue. It appears that there is majority on the court to relax Pennsylvania constitutional requirements for canine drug sniffs.

Commonwealth Court has recently struggled with the contours defining the constitutionally permitted tax exemption for "actual places of regularly stated religious worship". Article VIII, section 2(a)(i). In Reform Congregation Oheb Shalom v. Berks County Board of Assessment Appeals, 839 A.2d 1217 (Pa. Cmwlth. 2004), and Connellsville Street Church of Christ v. Fayette County Board of Assessment Appeals, 838 A.2d 848 (Pa. Cmwlth 2003), the court rejected tax exemption for religious staff housing. [See discussion of Reform Congregation Oheb Shalom below.] In Wesley United Methodist Church v. Dauphin County Board of Assessment Appeals, 844 A.2d 57 (Pa. Cmwlth. 2004), the court allowed tax exemption for church parking based on particular facts of the case, while warning that not all church parking lots are necessarily tax exempt. All this should be contrasted with the much broader tax exemption recognized pursuant to public charities in Article VIII, section 2(a)(v). Not only is housing for staff held exempt under section 2(a)(v), but so are dorms, despite the fact that for upperclass students, living on campus is often an exception and thus not clearly related to education.

***A panel of the Commonwealth Court recently dealt with the distinction between section 2(a)(i) and 2(a)(v) when a Church claimed tax exemption for a parish house as an institution of purely public charity rather than as an actual place of regularly stated religious worship. St. Aloysius R.C. Church v. Fayette County Board of Assessment Appeals, 849 A.2d 293 (Pa. Cmwlth. 2004). The difficulty for the Court was that the test of a charity exemption is becoming easier to meet while that of a place of worship is becoming more difficult to meet. Acknowledging that the Church might have a claim to exemption under the "more liberal" charitable provision, the Panel essentially refused to allow the Church to attempt to qualify as a charity, but had to rely on the more stringent place of worship provision.

What the Court failed to note, however, is that it is not the text of the Pennsylvania Constitution that has made one tax provision "more liberal" than another, but the courts' strained and willful interpretation. There is no reason why the worship provision does not include residences, but the charity provision does. Nor is there any ground for denying a Church the right to qualify for a charitable tax exemption. The idea that a secular charity would have a greater chance of qualifying for tax exempt status than a Church that is also a charity is a serious anti-religious discrimination.

The recent release of Nicholas Yarris from death row in Pennsylvania after more than 20 years imprisonment, based on DNA evidence conclusively demonstrating his innocence, raises the question whether any compensation is available to the wrongly convicted man. Because there was in his case no judicial finding of wrongful conduct by prosecutors or others, there would not seem to be a basis for a damage claim. Some states have compensation statutes for persons in Yarris' situation, but Pennsylvania does not appear to have such a program. One possibility would be an action in court directly upon Article I, section 1 of the Pennsylvania Constitution, which guarantees the right of "enjoying...liberty" and "protecting...reputation". There is Pennsylvania caselaw in the area of search and seizure suggesting that, while the federal constitution provides remedies only in order to deter official misconduct, the Pennsylvania Constitution provides remedies to vindicate rights. Therefore, arguably the Pennsylvania Constitution might provide a compensation remedy to Yarris even in the absence of official misconduct. Such an action by Yarris would have to overcome any immunity the State may enjoy from damage claims.

In concurring in Lehman v. Pa. State Police, ___ A.2d ___, 2003 WL 23095639 (Pa., December 30, 2003) Justice Nigro noted that although a federal prohibition on gun ownership in the case did not constitute unconstitutional ex post fact punishment, it was nevertheless "unfair that an individual who stole a case of beer" in the remote past when the act was a felony, could not purchase a firearm, whereas an individual who committed the same act today, when the act is classified as a misdemeanor, can purchase a firearm. Justice Nigro also wrote the majority opinion in Nixon v. Commonwealth, 2003 WL 23095675 (Pa., December 30, 2003), which struck down a provision of the Older Adults Protective Services Act that had prohibited certain persons with criminal records from employment in facilities catering to older adults. The provision was held by the majority to violate the right to work embodied in Article I, section 1 of the Pennsylvania State Constitution. Clearly, Justice Nigro's view of the rights of ex-convicts is influencing the court. Just as clearly, this aspect of Pennsylvania constitutional jurisprudence is of national significance, though it has not as yet been recognized.

Reform Congregation Oheb Shalom v. Berks County Board of Assessment, 839 A.2d 1217 (Pa.Cmwlth. 2004) expresses an oddity of Pennsylvania constitutional jurisprudence. The court holds that the constitutional tax exemption stated in Article 8, section 2 (a)(i)--permitting legislative exemption from taxation of "Actual places of regularly stated religious worship"--does not reach the property used as a maintenance employee's house half a block from the synagogue. The court acknowledged that a different result obtains for universities and other charitable uses that are exempt from taxation under Article 8, section 2(a)(v), which permits legislative exemption of institutions of purely public charity and "that portion of real property of such institutions which is actually and regularly used for the purposes of the institution." The Pennsylvania Supreme Court has previously justified such divergent treatment as deliberately and clearly drawn by the constitutional texts involved, but the differing interpretations are probably also based on an understanding of the constitutionally permissible limits of tax exemptions for religious institutions. Since recent United States Supreme Court interpretation of the Establishment Clause would appear to permit a very broad tax exemption for religious institutions, it may well be time for the premise of these distinctions to be rethought.

South Newton Township Electors v. South Newton Township Supervisor, ___ A.2d ___, 2003 WL 22964330 (Pa., December 17, 2003) raises issue of validity of legislation that predates adoption of 1874 Pennsylvania Constitution, an issue that does arise under the Federal Constitution.

On Wednesday, December 3, 2003, Tim McNulty reported that the Pittsburgh City Treasurer, Rich Fees, told City Council that certain tax breaks would cost the City millions of dollars in lost revenue next year. For one thing, unreimbursed business expenses must be an allowed deduction from local earned income taxes. Also, several particular industries have been made exempt from the local business privilege tax, including banks, utility companies, financial services companies and manufacturers. The question is why these tax breaks do not violate the tax uniformity principle as enunciated in Amidon v. Kane in 1971. Amidon invalidated the State Income Tax because it allowed for recognition of certain exemptions and deductions. Some of these current tax breaks would appear to be invalid under Amidon. So, where is the Pennsylvania Supreme Court?

In Southeastern Pennsylvania Transportation Authority (SEPTA) v. Board of Revision of Taxes, ___ A.2d ___, 2003 WL 22019307 (Pa., 2003), the court per Cappy, C.J., attempted to distinguish between the immunity of publicly held property from local taxation and the exemption from taxing such property granted in Article VIII, section 2, of the State constitution. In principle, the immunity should be broader since the exemption applied only to "that portion of public property which is actually and regularly used for public purposes". In Southeastern, however, the court held that property leased by SEPTA to private, commercial entities, was not immune from taxation. The court appeared to apply something akin to the "public purposes" test, thus confusing the categories of immunity and exemption.

In its August 14, 2003 issue, Pulp Magazine in Pittsburgh reported on efforts by voters to impeach Pittsburgh Mayor Tom Murphy pursuant to the Pittsburgh Home Rule Charter. The Charter contains a liberal provision for impeachment, requiring only 20 signatures to bring a quasi-judicial action in the Court of Common Pleas. The grounds for impeachment are also expansive, including incompetence and mismanagement.

The impeachment effort, however, is probably unconstitutional. In In re Petition to Recall Reese, 665 A.2d 1162 (Pa. 1995), the Pennsylvania Supreme Court affirmed dismissal of recall proceedings in Kingston, Pennsylvania, on the ground that removal of public officials is governed exclusively by Article VI, section 7 of the Pennsylvania constitution. While the Court's opinion did distinguish impeachment, which is not governed by section 7, the result will probably be the same. Impeachment is set forth in Article VI, sections 4-6, of the State constitution. Under the reasoning of Reese, these sections should be the exclusive impeachment provisions. Assuming that sections 4-6 are the exclusive impeachment procedures, impeachment of Mayor Murphy is very unlikely. Section 4 provides that the Pennsylvania House of Representatives has the sole power of impeachment. Any impeachment is then to be tried in the Pennsylvania Senate and a two-thirds vote is required for conviction.

The consequences of not properly raising a state constitutional issue were never more apparent than in Purple Orchid, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 813 A.2d 801 (Pa. 2003). Just twelve days after the Pennsylvania Supreme Court struck down a municipal ban on nude dancing under Article I, section 7--PAP's A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002)--the Court upheld a liquor code ban on topless dancing under the first amendment in Purple Orchid. The court held that the state constitutional issue was waived because, although mentioned in appellant's brief, the issue was not substantially argued. Furthermore, the state constitutional issue was not raised in the petition for allowance of appeal.

In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), Justice Castille, writing for a unanimous court on this point, cast doubt on whether the express waiver rule announced in Commonwealth v. Bussey, 404 A.2d 1309 (Pa. 1979) (express waiver of Miranda rights required) remains good law under the Pennsylvania Constitution. Although the State Constitutional issue was not properly raised, Justice Castille stated expressly that there was no state constitutional violation in Bomar despite the absence of an express waiver and noted that Bussey was only a plurality decision that has not consistently been followed.

Mishoe v. Erie Insurance Company, 824 A.2d 1153 (Pa. 2003) continues the court's very narrow interpretation of Article I, section 6's right to a civil jury trial. The methodology the court is using asks whether a particular cause of action existed at the time the Constitution was adopted. If a cause of action did not exist at that time, then there is no right to a jury trial no matter how much the cause of action appears to be legal in nature.

The Pennsylvania Supreme Court has often stated that Pennsylvania does not follow the federal rule of Article III case or controversy doctrine in defining standing. Observers may have assumed that Pennsylvania had its own constitutional rule of standing and justiciability. In In re Hickson, 821 A.2d 1238 (Pa., 2003), Chief Justice Cappy stated for an unanimous court that standing doctrine in Pennsylvania has no constitutional basis at all. Standing is merely a "useful tool" (Fn. 5). Of course, standing requirements do exist and the appellant in Hickson was held to lack standing to seek judicial review. Nevertheless, the proclamation of a purely prudential basis for standing is an important step. And, since most federal justiciability doctrine is also grounded in Article III, there may be no constitutional basis for ripeness, mootness or political question doctrine either.

In Commonwealth v. Morris, ___ A.2d ___, 2003 WL 2004249 (Pa., 2003), the Court continues to assert that it has inherent power to issue stays of execution in death penalty P.C.R.A. cases, but that in the case before it, no showing was made that invoked the power to go outside legislative limits on stays of execution.

In light of the current funding crises affecting mass transit in Pennsylvania, the interpretation of Article VIII, section 11 may become very significant. The section limits the use of gasoline taxes and automobile license and registration fees to "construction, reconstruction, maintenance and repair of and safety on public highways...and expenses incident thereto... ." Professor Ken Gormley of Duquesne University School of Law has argued that the narrow language of Section 11 does not necessarily preclude the use of gasoline tax and other revenues as a dedicated revenue source for mass transit, "so long as it is for the purposes set forth in Section 11". If the section does preclude such use, the only method to set aside a portion of gasoline tax revenue for mass transit would be a State constitutional amendment.

Commonwealth v. Elmobdy, 2003 L 1923782 (Pa. Super. 2002) is another case considering whether the person, in this case an employee of a bail bonding company, allegedly violating Article I, section 8, of the Pennsylvania Constitution, is a state actor. This application of the "state action" doctrine ignores caselaw questioning whether other sections of the Pennsylvania Constitution are limited by the federal state action doctrine.

The proposed State constitutional amendment submitted by Senate President Pro Tempore Robert Jubelirer to change the way vacancies in the office of Lieutenant Governor are filled is a surprising next step in the saga of the case of Lawless v. Jubelirer, 789 A.2d 820 (Pa. Cmwlth.), affirmed 811 A.2d 974 (Pa. 2002). Lawless dismissed the challenge to Jubelirer's retaining the office of President of the Senate when he was elevated to Lieutenant Governor. Jubelirer's amendment would reverse the precedent he himself set. It is not clear whether the proposed amendment really would repair all the damage to the separation-of-powers that the opinion created. The Commonwealth Court opinion in Jubelirer's favor, for example, seemed to allow general sharing of legislative and executive offices. The proposed amendment does not resolve that issue. Two further questions arise from these events. First, since Jubelirer apparently thought the sharing of the two offices was bad policy even when he held them both, why did he not resign the Senate Presidency? Second, did the Justices on the Pennsylvania Supreme Court know about Jubelirer's plan to introduce this amendment? Does such knowledge explain the otherwise inexplicable failure of the court to grant oral argument and write an opinion in affirming Lawless v. Jubelirer, which on its face presented the kind of fundamental constitutional question it is the court's role to consider?

In Commonwealth v. Robins, the Court held without a majority opinion, that the admission of inculpatory statements made by a non-testifying coconspirator violated defendant's Sixth Amendment right of confrontation. Robins is another case in which the court, having ruled in favor of a party on federal constitutional grounds, refuses to reach an analogous State constitutional claim. But the Sixth Amendment raised in Robins, like the First Amendment issue raised in PAP's A.M., was a close one. In Pap's A.M., the United States Supreme Court reversed the result, which led the Pennsylvania Supreme Court to reinstatement of the judgment on the State constitutional grounds. The same thing could happen in Robins The court's method invites unnecessary review by the United States Supreme Court, and denigrates the significance of the Pennsylvania Constitution. It would be far better for the court always to reach State constitutional claims, whatever the merits of federal constitutional claims. That approach seems to be implied by Justice Cappy's opinion in Commonwealth v. Edmunds.

National Association of Forensic Counselors v. State Board of Social Workers, Marriage and Family Therapists and Professional Counselors upheld the denial by the Board of a request by the Association to be recognized as national credentialing agency exempt from licensing exam. The case is a good review of Pennsylvania constitutional/administrative law. Commonwealth Court upheld the Board's decision against delegation, due process and equal protection challenges.

On January 28, 2003, the Pittsburgh Tribune Review reported that the Allegheny County District Attorney's Office was investigating the fitness of City Council member Sala Udin to hold office under Article II, section 7. The article raised the question whether a private citizen could bring suit if the District Attorney refused to do so. In In re One Hundred Qualified Electors, 683 A.2d 283 (Pa. 1996), the Pennsylvania Supreme Court, in an opinion by Justice Castille, stated that a party would be permitted to bring an alternative to a quo warranto claim–mandamus or an action in equity--where both the local District Attorney and the Attorney General refuse to file.


*Unless otherwise noted, all interpretations are written by Bruce Ledewitz, Professor of Law at Duquesne University School of Law and reflect his views.