STANDER v. Kelley

¶1*425Concurring Opinion by

¶2I concur in the result reached by the majority in affirming the decree of the court below. However, I deem it appropriate to discuss further appellants’ contentions dealing with the abrogation of the right to habeas corpus, the right to civil jury trial and the King’s Bench powers of this Court.

¶3Appellants urge in their brief that “in the Judiciary Article . . ., for all its verbiage nowhere does it tell us in which court the great writ of habeas corpus is for all time to be found, and protected from the ill winds of political chicanery.” This statement on its face appears correct; however, appellants’ inquiry into the future viability of the writ of habeas corpus should not end with Article V. Certainly the Constitution is an integrated document and clauses in one article must be read in light of the provisions of all the others. It is made quite clear in Article I, Section 14 “that the privilege of the writ of habeas corpus shall not be suspended.” And lest it be thought that while not suspended, the Legislature might choose to withdraw jurisdiction over such writs from the courts of this Commonwealth, §11 of the same Article clearly provides “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Therefore, it is abundantly clear that the “Great Writ” retains its historical character as the ultimate and essential safeguard of individual rights and that the courts of the Commonwealth of Pennsylvania must and will continue to make its protections available.

¶4Appellants also contend that the Constitutional Convention abrogated the right to trial by jury in civil cases. To support this argument they point to §25 of *426Article V: “Section 25. Dispensing with Trial by Jury. — Until otherwise provided by law, the parties, by agreement filed, may in any civil case dispense with trial by jury, and submit the decision of such case to the court having jurisdiction thereof, and such court shall hear and determine the same . . . .” (Emphasis supplied.) While appellants concede that the unitalicized portion merely grants civil litigants the right to Waive a jury trial, their argument is that “Until otherwise provided by law . . .” means that the Legislature can provide another procedure other than mutual waiver which will result in the abrogation of the right to trial by jury.

¶5However, I find that argument particularly unpersuasive. The error in appellants’ reasoning lies in the narrow interpretation they place on the meaning of the word “law.” It is my view that such a narrow interpretation not only was not intended by the framers of this Section, but also would yield an unreasonable result. For if the appellants are correct, what would be the meaning of Article I, §6, which guarantees “Trial by jury shall be as heretofore, and the right thereof remain inviolate”? The better view is that the word “law” includes not only statutory law, but also case law and constitutional law. Thus, so long as Article I, §6 is not repealed or amended by a future constitutional convention or constitutional amendment, any statutory law which attempted to change the right to trial by jury in civil cases would be a nullity.

¶6The third contention of appellants to which I want to address myself is that dealing with the elimination of this Court’s King Bench powers and the failure to provide for separation of powers between the legislative and judicial branches of our government. Appellants’ argument focuses on §2(c) of new Article V, which states “Section 2. Supreme Court. — The Supreme *427Court ... (c) shall have such jurisdiction as shall be provided by law.” (Emphasis supplied.) Once again appellants’ reasoning is based on an erroneous and excessively narrow construction of the word “law.” They would have us interpret “law” to mean only legislatively passed statutory law and then view this Court’s jurisdiction as completely at the whim and caprice of the Legislature.

¶7However, such an interpretation of a broad word like “law” is erroneous in this context. The preferred interpretation of that clause must include not only statutory law, but also case law, Pennsylvania Constitutional law and United States Constitutional law. When viewed in this light, it is obvious that the jurisdiction of the Pennsylvania Supreme Court is still very much intact and that action by the Legislature can in no way restrict our essential judicial functions. First, the new Constitution provides in Article Y, §1 that “The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court . . . .” Further, §2 of the same Article announces “The Supreme Court (a) shall be the highest court of the Commonwealth and in this court shall be reposed the supreme judicial power of the Commonwealth.” Finally §10 of the Constitution explicitly establishes that “The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace” and that it “shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts.”

¶8All of these quoted provisions are constitutional and the guarantees and safeguards inherent in these provisions could never be limited or eliminated simply by legislation. In addition, there are other functions inherent in the Commonwealth’s judicial power which are required by federal constitutional law. It could *428never be validly asserted that these requirements might be amended or restricted by an act of the Pennsylvania Legislature. In short then, and without citing specific examples, it is my view that to read Article Y, §2(c) to mean that the Legislature has complete plenary control over the jurisdiction of this Court is completely incorrect; therefore appellants’ argument that the essential separation of powers has been violated must fail. The Legislature, in attempting to define the jurisdiction of this Court, cannot infringe on the limitations, as judicially interpreted, that are in the Pennsylvania and United States Constitutions.

¶9Appellants in a like manner argue that the King’s Bench powers of this Court as set out in the Act of May 22, 1722, 1 Sm. L. 131, §XIII, have been eliminated. But, even a cursory glance at the judiciary provisions of the Constitution indicates that this argument is without merit. In fact, it appears that some of the original King’s Bench powers of our Court have now been recited in the Constitution. First, the Court has constitutionally enunciated power to remove and discipline judges under Article Y, §18 (h). In addition, the right to transfer judicial manpower in light of the overall needs of the Commonwealth is set out in §10(a) of the same Article. Further, the provisions of §10 quoted above clearly describe the general supervisory and administrative authority of the Supreme Court over all other courts and justices of the peace. Finally, Article Y, §2 provides, in the last analysis, conclusive response to the appellants’ concern. This clause speaks of the “supreme judicial power” reposing in this Court and can mean no less than that this Court possesses every judicial power that the people of the Commonwealth can bestow under the Constitution of the United States. I think that these considerations taken together obviously illustrate that the King’s *429Bench powers of this Court have in no way been restricted. The judicial power reposed in this Court will continue as before, unimpaired by any mistaken notion that the Legislature has the constitutional authority to diminish, curtail or interfere with its functions.

¶10Dissenting Opinion by

¶11In Wells v. Bain, 75 Pa. 39, 47 (1874), Chief Justice Agnew wrote that there are “but three known recognized modes by which the whole people, the state, can give their consent to an alteration of an existing lawful frame of government, viz.:

¶12“1. The mode provided in the existing constitution.

¶13“2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people.

¶14“3. A revolution.

¶15“The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode — revolution.”

¶16Even if we ignore appellants’ contention that Act No. 2 of the 1967 Session did not properly follow Article 18 of the 1874 Constitution, we must, nevertheless, determine whether a proper body for revision of the existing lawful frame of government was constituted by Act No. 2. I am constrained to hold that because §2 of the Act provides for 13 ex officio members in addition to 150 elected delegates, that the ex officio *430members so dilute the elected body established for revision of the frame of government that it is not representative of the whole people and hence, unlawful and void.1

¶17The essence of a constitutional convention is only maintained if it represents the people. It is a substitute for the gathering of the entire populace. The presence of ew officio delegates exercising the full powers of elected delegates is foreign to the concept of a convention as a gathering of the people. Thus, there was no convention and nothing which flowed from it is valid even if the product of the convention is subsequently approved by the majority of the voters.

¶18I recognize that the leadership of the General Assembly that approved the Act held within their political power the “yes” or “no” on whether a constitutional convention should be called. But those in favor of a convention should not have surrendered the very essence of government in order to have the General Assembly pass the call. The cost was too high. It permitted the leadership of the General Assembly to become part of the convention without exposing themselves to the will of the people, and to influence, if not control, the convention’s deliberations.2 I see a *431dangerous threat to government as we know it by acquiescing in this unprecedented usurpation.3

¶19I cannot accept the contention that all prior improprieties and illegalities are rectified by the ratifying vote of the electorate.4 Procedures in government *432instituted for the protection of the mass of people are designed to protect them from the rule of the majority. Our concepts of democracy and minority rights have far transcended the philosophy that “might makes right.”

¶20I dissent.