IN THE SUPREME COURT OF PENNSYLVANIA MICHAEL L. FAGAN, et al. Petitioners, v. SAMUEL H.

SMITH, in his capacity as Speaker of the Pennsylvania House of Representatives, and CAROL AICHELE, in her capacity as Secretary of the Commonwealth of Pennsylvania, Respondents. : : : : : : : : : : : : : : :

No. 41 MM 2012

RESPONSE OF SAMUEL H. SMITH IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS OR, ALTERNATIVELY, APPLICATION FOR THE EXERCISE OF ORIGINAL JURISDICTION UNDER KINGS BENCH POWER AND EMERGENCY RELIEF

James J. Rohn (No. 21636) jrohn@conradobrien.com Matthew H. Haverstick (No. 85072) mhaverstick@conradobrien.com Robert N. Feltoon (No. 58197) rfeltoon@conradobrien.com Francesco P. Trapani (No. 209123) ftrapani@conradobrien.com CONRAD OBRIEN PC 1500 Market Street Centre Square West Tower, Suite 3900 Philadelphia, PA 19102 Tel: (215) 864-9600 Fax: (215) 864-9620 Attorneys for Respondent Samuel H. Smith

I.

PRELIMINARY STATEMENT Respondent Samuel H. Smith, in his capacity as Speaker of the Pennsylvania House of

Representatives, respectfully requests that the Petition in this matter be dismissed for the following reasons. First, the Court lacks jurisdiction to hear this matter, on the basis that the Court did not retain jurisdiction over this specific dispute the scheduling of special elections in its recent reapportionment decision, Holt v. 2011 Legislative Reapportionment Commn, -- Pa. --, 2012 WL 375298 (Feb. 3, 2012) (Holt Opinion), and this case does not justify invoking the Courts King Bench powers. Second, Petitioners substantive claim centers upon the contention that the Speakers authority under 25 P.S. 2778a to delay calling special elections was eliminated once this Court remanded the 2011 reapportionment plan by Order dated January 25, 2012. That argument is not supported by the facts or the law, so that the Speaker remains entitled to exercise his authority to decide when, and under what circumstances, to call for special elections. Third, this Court lacks the power under its own long-standing precedent to review the Speakers exercise of his statutory authority on an abuse of discretion standard. Fourth, even if the Court may review the Speakers exercise of his statutory authority, the uncertainty that presently exists regarding how the election process will proceed in 2012, on what schedule, and under what plan of reapportionment, supports the conclusion that the Speaker has not abused his discretion. For all of these reasons, which are discussed below in more detail, the Petition should respectfully be dismissed. II. STATEMENT OF FACTS Most of the facts relevant to this matter that is, those facts relating to the constitutionally-required reapportionment process are already familiar to the Court and therefore will be presented in summary fashion.

Following every federal decennial census, a Legislative Reapportionment Commission (LRC) is created. The LRC is tasked with creating a plan to reapportion the Pennsylvania state legislative districts. The LRC, created after the 2010 census, approved a preliminary reapportionment plan on October 31, 2011. (Smith Compl. 26, Ex. A to Petition). Currently there are six vacancies in the Pennsylvania House of Representatives in the 22nd, 134th, 153rd, 169th, 186th and 197th districts, respectively that opened after the preliminary reapportionment plan was approved on October 31, 2011. (Smith Compl. 37). The October 31 preliminary plan (and later the final plan) called for moving the 22nd legislative district from Allegheny County to Lehigh County and moving the 169th legislative district from Philadelphia County to York County. The other four districts, while not changed as drastically under the preliminary and final plans, nonetheless were modified by the LRC. Article II, Section 2 of the Pennsylvania Constitution directs the Speaker, as presiding officer of the House of Representatives, to issue a writ of election to fill any vacancy that occurs in the House for the remainder of the legislative term. By state statute, the Speaker generally is required to issue a writ of election within ten days after a vacancy occurs in the House. 25 P.S. 2778. This general rule does not apply, however, during periods associated with the legislative reapportionment of the Commonwealth. 25 P.S. 2778a. The time frame during which Section 2778as statutorily-mandated alternate special election process is in effect runs from the approval of a preliminary reapportionment plan by the LRC (i.e., October 31, 2011) until a final reapportionment plan attains the force of law (either following approval of the final plan on appeal to this Court or when the time for appeal of the final plan has passed, if there is no appeal). See 25 P.S. 2778a; Holt Opinion at *18.

On December 12, 2011, the LRC adopted the 2011 Final Reapportionment Plan (2011 Final Plan). (Smith Compl. 27). On January 25, 2012, this Court entered an Order declaring the 2011 Final Plan contrary to law and remanding the Plan to the LRC for modification consistent with the Courts explanatory opinion (filed on February 3, 2012). See Holt v. 2011 Legislative Reapportionment Commn, -- Pa. --, 2012 WL 360584, *1 (Jan. 25, 2012) (Holt Order). In the Opinion, the Court took issue with the manner in which the 2011 Final Plan divided political subdivisions and with the compactness of some electoral districts as drawn. See, e.g., Holt Opinion at *35-*38. The Court did not identify, however, any constitutional defect concerning the proposed reapportionment of the six districts listed above in which there are vacancies, nor did the Court disapprove of moving either the 22nd or 169th districts to geographically different parts of the Commonwealth. The Courts Opinion concluded by noting that [a]ny issues respecting deferring the state legislative primary, or scheduling special elections, etc., are, in the first instance, the concern and province of the political branches. Such questions have not been briefed and presented to this Court. Id. at *42. III. ARGUMENT A. The Court Lacks Jurisdiction To Hear This Case

Before addressing Petitioners substantive argument, Respondent addresses whether this Court has jurisdiction to hear this case. Petitioners assert jurisdiction pursuant to Article II, Section 17(d) of the Pennsylvania Constitution and 42 Pa. C.S. 725(1)1 because this matter

Article II, Section 17(d) of the Pennsylvania Constitution and 42 Pa. C.S. 725(1) relate to this Courts authority to hear appeals regarding the constitutionality of a final redistricting plan submitted by the LRC. See Article II, Section 17(d) (Any aggrieved person may file an appeal from the final plan directly to the Supreme Court within thirty days after the filing thereof. If the appellant establishes that the final plan is contrary to law, the Supreme Court shall issue an order remanding the plan to the commission and directing the commission to reapportion the Commonwealth in a manner not inconsistent with such order); 42 Pa. C.S. (footnote continued) 3

relates to Holt et. al. v. Legislative Reapportionment Commission . . . [and] [b]y order dated February 3, 2012, this Court retained jurisdiction in redistricting matters. Petition 6, 7. In the alternative, Petitioners request that the Court exercise its Kings Bench powers pursuant to Article II, Section 2(c) and 42 Pa. C.S. 3309.2 Petition 7. Neither basis is sufficient to grant the Court jurisdiction to hear this case. The Court in Holt did not expressly retain jurisdiction over the matter raised by Petitioners the scheduling of special elections. In fact, the Court stated that matters involving scheduling special elections were not before the Court at all: We are not in a position to predict when the LRC will complete its task of developing a new final redistricting plan that complies with law, nor when such a plan can become final and attain the force of law. Any issues respecting deferring the state legislative primary, or scheduling special elections, etc., are, in the first instance, the concern and province of the political branches. Such questions have not been briefed and presented to this Court. Holt Opinion at *42 (emphasis added). Alternatively, a Kings Bench petition is an extraordinary measure which has been invoked only in the rarest of circumstances, which do not exist here.3 Vacone v. Syken, 587 Pa. 380, 387 (2006) (our extraordinary jurisdiction should be invoked sparingly, and only in cases 725(1) (the Supreme Court shall have exclusive jurisdiction of appeals from final orders of . . . constitutional and judicial agencies [including] the Legislative Reapportionment Commission). Neither Article II, Section 2(c) nor 42 Pa. C.S. 3309 actually relates to this Courts Kings Bench powers, which derive from the Pennsylvania Constitution, Article V and 42 Pa. C.S. 502. See In re Avellino, 547 Pa. 385, 389-91 (1997).
2

The Kings Bench power is similar to the Courts power to exercise extraordinary jurisdiction pursuant to 42 Pa. C.S. 726. The Court applies the same standard in determining whether to exercise its extraordinary jurisdictional powers under Kings Bench or 42 Pa. C.S. 726, the primary difference being that Kings Bench jurisdiction allows the Court to exercise jurisdiction when no matter is pending before a lower court. Board of Revision of Taxes v. City of Philadelphia, 4 A.3d 610, 620 (Pa. 2010); In re Dauphin County Fourth Investigating Grand Jury, 943 A.2d 929, 933 n.3 (Pa. 2007).
3

involving an issue of immediate public importance, and where the record clearly demonstrates the petitioners right to relief) (internal quotations and citing reference omitted); Washington County Commrs v. Pennsylvania Labor Relations Bd., 490 Pa. 526, 532 (1980) (we will not invoke extraordinary jurisdiction unless the record clearly demonstrates a petitioners rights. Even a clear showing that a petitioner is aggrieved does not assure that the Court will exercise its jurisdiction to grant the requested relief). Petitioners in these circumstances may seek a writ of mandamus in the Commonwealth Court. Commonwealth Court Internal Operating Procedures 67.45 (Commonwealth Court has jurisdiction over [p]roceedings under the Pennsylvania Election Code, including petitions in the nature of mandamus). On the same day that Petitioners filed their writ of mandamus in this Court, unrelated parties filed a nearly identical action in the Pennsylvania Commonwealth Court seeking the same relief with respect to one district. Wagner v. Smith, No. 89 MD 2012 (Pa. Commw. Ct. Feb. 17, 2012). The Wagner action was withdrawn after the Petition in this Court was filed. For these reasons, the Court lacks jurisdiction to hear and decide this matter. B. The Speakers Statutory Discretion Under Section 2778a Remains In Place Notwithstanding This Courts Remand To The LRC

Petitioners claim essentially revolves around a single core contention: that this Courts decision to remand the 2011 Final Plan to the LRC effectively eliminated the Speakers statutory authority under Section 2778a to delay the issuance of a writ of election until ten days after the date the final plan attains the force of law. Petitioners claim that [a]s a consequence of the Courts January 25, 2012 order, the 2011 reapportionment plan that was approved by the LRC no longer exists, and [t]he LRC has not yet filed (or even developed ) a preliminary plan to replace the plan that this Court rejected as being unconstitutional. (Petition 45; emphasis 5

added). As a result, according to Petitioners, the events necessary to trigger application of Section 2778a, i.e., a vacancy during the period between filing a preliminary reapportionment plan by the LRC and the date a final plan attains the force of law, no longer exist. (Id. 45-46). Petitioners argument is not supported by the language of the Pennsylvania Constitution, by this Courts Order and Opinion remanding the 2011 Final Plan to the LRC, by the language of Section 2778a, or by plain logic and common sense: The LRC adopted a preliminary reapportionment plan on October 31, 2011. (Smith Compl. 26, Ex. A to Petition). The six vacancies at issue in the Petition all arose after the LRC preliminary reapportionment plan was adopted on October 31, 2011. (Smith Compl. 37). After the preliminary reapportionment plan was adopted by the LRC on October 31, 2011, no final reapportionment plan has attained the force of law because the Final Plan adopted by the LRC on December 12, 2011 was found contrary to law by this Court and remanded to the LRC, by Order dated January 25, 2012. (Smith Compl. 27-29; Petition 12-14). Article II, Section 17(d) of the Pennsylvania Constitution provides that, if this Court finds any final plan contrary to law, the Court shall issue an order remanding the plan to the commission and directing the commission to reapportion the Commonwealth in a manner not inconsistent with such order. The Constitution does not say the plan approved by the LRC no longer exists, or that the Court should direct the LRC to start from scratch as if there had been no final plan. Instead, the Court simply remands the final plan to the LRC with directions how to improve it.

This Courts January 25th Order is consistent with the Constitutional mandate. As the Court directed, the final 2011 Legislative Reapportionment Plan is REMANDED to the 2011 Legislative Reapportionment Commission with a directive to reapportion the Commonwealth in a manner consistent with this Courts Opinion, which will follow. See Holt Order at *1. Again, there is no language in that Order, or in the Courts February 3, 2012 Opinion, stating or suggesting the 2011 Final Plan no longer exists or the legislative reapportionment process (which includes the LRC adoption of a preliminary plan in October 2011) starts over for all purposes, including the triggering events for application of Section 2778a. To the contrary, and as Petitioners take pains to point out, this Court concluded its Opinion in Holt by retaining jurisdiction. See Holt Opinion at *42. If the Court had treated the 2011 Final Plan as if it no longer exists, there would then be no reason to retain jurisdiction; instead, the Court would treat any new plan as an entirely new and separate event, unrelated to its consideration of any previous version. By retaining jurisdiction, the Court plainly recognized that the apportionment process is continuous and ongoing, which further supports the Speakers understanding that the exception for the timing of special elections provided for in Section 2778a remains in effect. Section 2778a provides that the Speakers discretion to delay the issuance of a writ of election exists during the entire period between the filing of a preliminary reapportionment plan . . . and the date that a final plan attains the force of law. Section 2778a contains no language stating or suggesting that, in the event this Court remands a final plan to the LRC for improvement, the triggering event of the LRCs

adoption of a preliminary reapportionment plan in October 2011 no longer exists within the meaning of Section 2778a. The only logical reading of Section 2778a is the one evidenced by the foregoing points and ascribed to it by the federal court in Pileggi v. Aichele: the Speakers discretion to delay the issuance of a writ of election under Section 2778a remains effective during periods associated with the legislative reapportionment of the Commonwealth. Pileggi v. Aichele, 2012 WL 398784, *3 n.5 (E.D. Pa. Feb. 8, 2012). Petitioners do not even attempt to suggest the Commonwealth is outside such a period. Nor do Petitioners attempt to offer any logical rationale for a contrary understanding.4 C. The Speakers Discretionary Authority Under Section 2778a Is Not Reviewable By This Court For Abuse of Discretion

Petitioners next argument is that, assuming Section 2778a still applies, this Court should rule that the Speaker has abused his discretion by failing to issue writs of election to fill the vacant seats. (Petition 62-75). The Petition cites no authority permitting the Court to review the Speakers actions under Section 2778a for abuse of discretion. In fact, this Court has stated repeatedly for more than a century that courts of the Commonwealth, including this Court, lack that power. As the Court stated succinctly in 1881, [w]here a person or body is clothed with judicial, deliberative or discretionary powers, and he or it has exercised such powers according to his or its discretion,

As Petitioners acknowledge, Section 2778a is an exception to Section 2778 (which otherwise requires the Speaker to issue a writ of election within ten (10) days after the happening of the vacancy. . . .). Petition 43. If, for the reasons set forth above, Respondent is correct that Section 2778a applies during the current reapportionment process, then by definition Section 2778 is not applicable, and Petitioners request for relief in Count I under Section 2778 fails. 8

mandamus will not lie to compel a revision or modification of the decision resulting from the exercise of such discretion, though, in fact, the decision may have been wrong. Runkle v. Com. ex rel. Keppelman, 97 Pa. 328, 332 (1881); accord, Martz v. Deitrick, 372 Pa. 102, 110 (1952) (Since it is the province of a county salary board at its annual meeting to fix the number of clerks to the employed in a county office, its action in such regard necessarily entails an exercise of official discretion which is not to be judicially dictated or modified by way of mandamus. The rule has been long established and calls for little citation of authority; citing Runkle and other cases). Accordingly, the Speakers actions under Section 2778a are not reviewable for abuse of discretion. But even assuming arguendo such review power exists, the Speaker has not abused his discretionary authority for the reasons discussed below. D. Even If The Speakers Discretionary Authority Is Subject To Judicial Review, The Speaker Has Not Abused His Discretion

Even if the Court could review the Speakers discretionary authority under Section 2778a for abuse of discretion, the Court should conclude he has not abused his discretion in declining to date to issue writs calling for special elections. To the contrary, and given the unprecedented circumstances of this reapportionment cycle, the Speakers approach has been and remains consistent with the caution and prudence necessary to balance multiple competing state interests. The Court in Holt remanded the 2011 Final Plan for revision and resubmission for consideration of such factors as greater geographic compactness and minimizing the splitting of political subdivisions. But, the Court did not comment upon or otherwise criticize the planned movement of various House districts from one part of the state to another. Therefore, it is likely that a revised plan will still contain significant changes in the location of at least two of the districts for which special elections are demanded namely the 22nd and the 169th. As noted in 9

the Statement of Facts, the preliminary and final reapportionment plans called for moving the 22nd legislative district from Allegheny County to Lehigh County and for moving the 169th legislative district from Philadelphia County to York County. Given the significant cost of holding any election, including a special election, it is prudent for the Speaker to determine whether he would be calling a special election for a district that would, only a handful of months later, materialize in a completely different part of the Commonwealth (and therefore serve a different set of voters). Given the timing of the adoption of a revised reapportionment plan, Petitioners demand that special elections occur on April 24, 2012 (the as-of-now scheduled primary date) creates an artificial deadline with attendant consequences that counsel in favor of delaying the issuance of writs calling for special elections at this point in time. It is possible that the April 24 primary date will be moved legislatively, meaning the Speaker should be required to hold special elections on April 24 (according to Petitioners) even though primary elections may take place on another date. Given the possibility of a legislated change in the primary date, the Speakers caution in scheduling a special election until true dates, and district lines, crystallize, is anything but abusive. More problematic, however, is a scenario Holt appears to recognize at least implicitly: that a primary election is held under the 2001 plan, but a new final plan then attains the force of law after the primary election and before the general election. In that event, it would appear the general election (or any election after a new final plan attains the force of law) must proceed under the new final plan and not under the 2001 plan. As Petitioners note in paragraph 14 of their filing, the Court in Holt ordered that the 2001 plan remain in effect until a final plan attains the force of law. If the primary elections occur on April 24 under the 2001 plan, and a final plan

10

then attains the force of law after April 24 but before the general election, both federal and state law suggest the general election must proceed under the newly-approved final plan. The Pennsylvania Constitution, Art. II, 17(e), requires that a final plan, once it attains the force of law, shall be used thereafter in elections to the General Assembly. Under the Election Code, 25 P.S. 2602, the word election means any general, municipal, Special or primary election, unless otherwise specified. Applying these provisions on their face, any election taking place after a final plan attains the force of law must proceed under that new plan. See Marston v. Kline, 301 A.2d 393, 396-98 (Pa. Cmwlth. Ct. 1973) (concluding, based on the cited sections of the Pennsylvania Constitution and the Election Code, that a special election occurring after a new reapportionment plan attains the force of law must take place under the new plan). This Court recognized and applied the controlling principle in In re 1991 Pennsylvania Legislative Reapportionment Commn, 530 Pa. 335, 349-350 (1992), where the Court rejected a request to delay the effective date of a new reapportionment plan until after the general election slated for that year. As the Court explained, we have no power to grant that relief as our Constitution sets the effective date of the plan as above. The effective date of this plan was February 14, 1992, the day that this Court issued an order dismissing the above appeals. Id. (citing Art. II, 17(e) of the Pennsylvania Constitution). The Courts decision in Holt does not expressly address this issue, but recognizes nonetheless that the Courts actions are likely to disrupt the primary process. See Holt Opinion at *2 (this Courts discharge of its constitutional duty to review citizen appeals has resulted in disruption of the election primary season); id. at *4 (the lateness of the adoption of the Final Plan virtually ensured that no remand could be accomplished without disrupting the primary process); id. at *42 (we recognize that our constitutional duty to remand a plan found contrary

11

to law has disrupted the 2012 primary election landscape, and [a]ny issues respecting deferring the state legislative primary, or scheduling special elections, etc., are, in the first instance, the concern and province of the political branches). Thus, there appears a realistic prospect that the Commonwealth could be required to hold a second primary if the April 24 primary proceeds under the 2001 plan, but a final plan attains the force of law between April 24 and the date of the general election. This is precisely the relief the United States Supreme Court sanctioned in Reynolds v. Sims, 377 U.S. 533 (1964). In Reynolds, once the federal district court declared that both of the new reapportionment plans submitted for its review failed to meet Constitutional standards, that court developed its own plan for interim use at upcoming elections by using the best parts of the two proposed plans which it had found, as a whole, to be invalid. Reynolds, 377 U.S. at 586-87. After the trial court issued its own plan, a new primary election had to be conducted, replacing the results of a primary election conducted a few months earlier under the outdated plan. Id. at 552-53. Under essentially this same scenario here, any presently-vacant district for which a special election is held on April 24 would have to elect a new representative, in a district potentially geographically distant from the one in which a special election would be held on April 24, no later than the general election. The complete lack of certainty about when this years primary elections will occur, and which reapportionment plan will be in effect when any election occurs this year, all support the Speakers prudent approach to the calling of special elections, consistent with his authority under Section 2778a. A special election forced to be held on April 24 may be for a district that no longer is in existence (at least in its present location) by the end of the year, or sooner. The date of the primary could move, meaning a judicially-mandated April 24 special election date would

12

be a standalone election and thereby vitiate the supposed efficiency and cost-effectiveness of holding special elections and primaries on the same day. It is even possible that, assuming judicial acceleration of the approval process, a new plan could attain the force of law before April 24, meaning a special election forced to occur on that date would be in a newly-drawn legislative district in which the candidates are not eligible to be elected. In short, there is more than considerable flux and uncertainty at present concerning how this years electoral process will proceed, and given that substantial uncertainty the Speakers exercise of discretion in the timing of calling special elections can fairly said to be prudent and appropriate, and certainly not an abuse of discretion. E. Petitioners Mischaracterize The Speakers Federal Court Complaint

Petitioners mischaracterize Respondent Speaker Smiths allegations in the Smith v. Aichele case filed in federal court and the effect of the federal court ruling.5 Speaker Smith sought a ruling concerning the constitutionality of using the 2001 legislative map in the event a writ of mandamus was sought to force him to call a special election using that map. He did not acknowledge in his complaint that he was obligated to call special elections for April 24, 2012, or that Section 2778a would be inapplicable, if the federal court found that continued use of the 2001 map was constitutional. Petition 19, 25, 53. Nor did he seek a ruling concerning when he was required to call special elections to fill the six vacant House seats, and the federal court made no such ruling.6

While the Speaker fully supports the allegations in his federal complaint, he notes that among Petitioners mischaracterizations of that complaint are the repeated statements that it was verified.
6

Petitioners also claim that Speaker Smith never responded to Representative Frank Dermodys letter, dated February 15th, before the filing of their petition. See Petition 23-25. The Petition was filed two days after the date on the letter, and two of Petitioners verifications (footnote continued) 13

IV.

CONCLUSION For the reasons set forth above, Respondent Samuel H. Smith respectfully requests that

the Court dismiss the Petition for Writ of Mandamus or, Alternatively, Application For The Exercise Of Original Jurisdiction Under Kings Bench Power And Emergency Relief.

Respectfully submitted, CONRAD OBRIEN PC

Dated: February 22, 2012

____________________________ James J. Rohn (No. 21636) jrohn@conradobrien.com Matthew H. Haverstick (No. 85072) mhaverstick@conradobrien.com Robert N. Feltoon (No. 58197) rfeltoon@conradobrien.com Francesco P. Trapani (No. 209123) ftrapani@conradobrien.com 1500 Market Street Centre Square West Tower, Suite 3900 Philadelphia, PA 19102 Tel: (215) 864-9600 Fax: (215) 864-9620 Attorneys for Respondent

are dated February 16th. See Verifications of Susan R. Kerr and Robert S. Smith, attached to Petition. These facts suggest that the Petition was in the process of being drafted before the Speakers receipt of the Dermody letter, and that Petitioners did not provide Speaker Smith with reasonable time to respond before filing the Petition. 14

CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, I caused a true and correct copy of the foregoing Response of Samuel H. Smith in Opposition to Petition of Writ of Mandamus or, Alternatively, Application for Exercising Original Jurisdiction Under Kings Bench Power and Emergency Relief via electronic mail and first mail on the parties listed below, consistent with Pennsylvania Rule of Appellate Procedure 121(b). Kevin Greenberg, Esq. Counsel for Petitioners Flaster / Greenberg, P.C. 1600 John F. Kennedy Boulevard, Suite 200 Philadelphia, PA 19103 Email: kevin.greenberg@flastergreenberg.com Jarad W. Handelman, Esq. Deputy General Counsel Governor's Office of General Counsel Commonwealth of Pennsylvania 333 Market Street, 17th Floor Harrisburg, PA 17101 Email: jhandelman@pa.gov

Dated: February 22, 2012

____________________________ Matthew H. Haverstick, Esq.