                         [J-82-2016] [MO: Wecht, J.]
                IN THE SUPREME COURT OF PENNSYLVANIA
                             MIDDLE DISTRICT


WILLIAM PENN SCHOOL DISTRICT;         :   No. 46 MAP 2015
PANTHER VALLEY SCHOOL DISTRICT;       :
THE SCHOOL DISTRICT OF                :   Appeal from the Order of the
LANCASTER; GREATER JOHNSTOWN          :   Commonwealth Court entered on April
SCHOOL DISTRICT; WILKES-BARRE         :   21, 2015 at No. 587 MD 2014.
AREA SCHOOL DISTRICT;                 :
SHENANDOAH VALLEY SCHOOL              :   ARGUED: September 13, 2016
DISTRICT; JAMELLA AND BRYANT          :
MILLER, PARENTS OF K.M., A MINOR;     :
SHEILA ARMSTRONG, PARENT OF           :
S.A., MINOR; TYESHA STRICKLAND,       :
PARENT OF E.T., MINOR; ANGEL          :
MARTINEZ, PARENT OF A.M., MINOR;      :
BARBARA NEMETH, PARENT OF C.M.,       :
MINOR; TRACEY HUGHES, PARENT OF       :
P.M.H., MINOR; PENNSYLVANIA           :
ASSOCIATION OF RURAL AND SMALL        :
SCHOOLS; AND THE NATIONAL             :
ASSOCIATION FOR THE                   :
ADVANCEMENT OF COLORED                :
PEOPLE-PENNSYLVANIA STATE             :
CONFERENCE,                           :
                                      :
                Appellants            :
                                      :
                                      :
           v.                         :
                                      :
                                      :
PENNSYLVANIA DEPARTMENT OF            :
EDUCATION; JOSEPH B. SCARNATI III,    :
IN HIS OFFICIAL CAPACITY AS           :
PRESIDENT PRO-TEMPORE OF THE          :
PENNSYLVANIA SENATE; MICHAEL C.       :
TURZAI, IN HIS OFFICIAL CAPACITY AS   :
THE SPEAKER OF THE PENNSYLVANIA       :
HOUSE OF REPRESENTATIVES; TOM         :
WOLF IN HIS OFFICIAL CAPACITY AS      :
THE GOVERNOR OF THE                   :
COMMONWEALTH OF PENNSYLVANIA;         :
PENNSYLVANIA STATE BOARD OF           :
EDUCATION; AND PEDRO A. RIVERA,                 :
IN HIS OFFICIAL CAPACITY AS THE                 :
SECRETARY OF EDUCATION,                         :
                                                :
                     Appellees                  :


                                 CONCURRING OPINION


JUSTICE DOUGHERTY                                         DECIDED: September 28, 2017
        I join the majority opinion in concluding the matter before us is justiciable under

the Baker1 factor analysis. I write separately to express my view that any time a party

raises a colorable claim that a right guaranteed to the citizens of this Commonwealth by

the Pennsylvania Constitution is being violated, such a claim always should be

justiciable and analysis under the Baker factors is irrelevant because judicial restraint

serves no purpose when constitutional rights are threatened or abridged. See Hugo L.

Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 870 (1960) (“[T]he judiciary was made

independent because it has…the primary responsibility and duty of giving force and

effect to constitutional liberties and limitations upon the executive and legislative

branches.”).

        The political question doctrine implicates the prudential concerns of judicial

restraint. Robinson Twp. v Commonwealth, 83 A.3d 901, 917 (Pa. 2013) (questions of

justiciability involve “prudential concerns implicating courts’ self-imposed limitations”).

See also L. Tribe, American Constitutional Law 79 (1978) (“Thus the political question

doctrine, like other justiciability doctrines, at bottom reflects the mixture of constitutional

interpretation and judicial discretion….”). The question of justiciability under the political

question doctrine arises from a concern regarding the maintenance of the separation of


1
    Baker v. Carr, 369 U.S. 186 (1962).



                              [J-82-2016] [MO: Wecht, J.] - 2
powers.   Consumer Party of Pa. v. Commonwealth, 507 A.2d 323, 332 (Pa. 1986)

abrogated on other grounds by Pennsylvanians Against Gambling Expansion v.

Commonwealth, 877 A.2d 383 (Pa. 2005) (“To preserve the delicate balance critical to a

proper functioning of a tripartite system of government, this Court has exercised

restraint to avoid an intrusion upon the prerogatives of a sister branch of government.”).

A court should refrain from resolving a dispute where doing so would involve the judicial

branch in carrying out the functions properly delegated to the legislative or executive

branches. Thornburgh v. Lewis, 470 A.2d 952, 956 (Pa. 1983); see also Consumer

Party, 507 A.2d at 333 (“it is appropriate to give due deference to a co-equal branch of

government as long as it is functioning within constitutional constraints…”).

Nevertheless, the resolution of disputes involving the interpretation of law is our

constitutional duty. Robinson Twp., 83 A.3d at 928 (courts must fulfill role of enforcing

constitutional limitations); Thornburgh, 470 A.2d at 956 (it is the courts’ constitutional

duty to resolve disputes involving interpretation of the law). Further, it is the duty of the

judicial branch to ensure that any constitutional right is not “impaired or destroyed by

legislation.” Smyth v. Ames, 169 U.S. 466, 527-28 (1898); Zemprelli v. Daniels, 436

A.2d 1165, 1169 (Pa. 1981) (“[I]t is the duty of the courts to invalidate legislative action

repugnant to the constitution.”).     It would undermine our constitutionally mandated

responsibilities to deliberately ignore a clear constitutional violation out of deference to a

co-equal branch of government. Consumer Party, 507 A.2d at 333.

       Appellants have challenged the current legislative framework for the financing

and funding of the Commonwealth’s public school system as constitutionally deficient

on the basis that (1) the public school funding system does not meet the constitutionally

mandated requirement to maintain a thorough and efficient system of public education

as expressed in the Education Clause found in Article III, Section 14 of the




                              [J-82-2016] [MO: Wecht, J.] - 3
Pennsylvania Constitution,2 and (2) the current funding system violates the right to

equal protection guaranteed by Article III, Section 32 of the Pennsylvania Constitution

(Equal Protection Clause).3

       We have not been asked to decide whether, as a policy matter, a particular

funding method is better than another.      Rather, we have been asked to determine

whether the existing funding method passes constitutional muster. These constitutional

challenges do not involve garden variety political questions. They entail grave social,

economic, and moral implications and consequences. A proper public education is not

a static concept and must change with the evolving world around us. Likewise, the

provision and maintenance of a “thorough and efficient” public education system must

also evolve to ensure the Commonwealth’s citizens are fully capable of competing

socially, economically, scientifically, technologically and politically in today’s society.

See, e.g., Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993)

(education necessary to meet duty to cherish public schools must “be adapted to the

various crises of human affairs”), quoting McCulloch v. Maryland, 17 U.S. 316, 415

(1819).

       In my view, because the current challenge to the Commonwealth’s public

education financing system involves uniquely compelling issues which are not only of


2
  The Education Clause provides: “The General Assembly shall provide for the
maintenance and support of a thorough and efficient system of public education to
serve the needs of the Commonwealth.” PA. CONST. art. III, §14.
3
   In relevant part, Article III, Section 32 of the Pennsylvania Constitution prohibits the
General Assembly from enacting special or local laws regulating the affairs of school
districts that can be provided for by general law. PA. CONST. art. III, §32. Pennsylvania
courts consider Article III, Section 32 and the Equal Protection Clause of the United
States Constitution, U.S. CONST. amend. XIV, § 1, to be equivalent as both command
that like persons in like circumstance be treated similarly. Harrisburg Sch. Dist. v.
Zogby, 828 A.2d 1079, 1088 (Pa. 2003) (citations omitted).



                              [J-82-2016] [MO: Wecht, J.] - 4
constitutional import for Pennsylvania’s students but also of paramount importance to

the Commonwealth as a whole both now and in the future, this Court would be remiss in

its own constitutional obligations by abstaining from deciding this constitutional

challenge based on any theory of judicial restraint. Consumer Party of Pa., 507 A.2d at

333 (“[W]hatever theory is employed, the legitimacy of the abstention is dependent upon

the situation presented.”).   See also Martin Redish, Judicial Review & the Political

Question, 79 Nw. U. L. Rev. 1031, 1059 (1985) (asserting political question doctrine is

problematic because it allows federal government or one of its branches to breach

constitutional boundaries without check of judicial review). Accordingly, I believe the

justiciability of questions related to our government’s compliance with its constitutional

duties in this ever-evolving arena should not be subjected to mere mechanical

application of certain enumerated factors.        See, e.g., William J. Brennan, State

Constitutions & the Protection of Individual Rights, 90 Harv. L. Rev. 489, 490-92 (1977)

(“state courts that rest their decisions wholly or even partly on state law need not apply

federal principles of standing and justiciability that deny litigants access to the courts”);

Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial

Function, 114 Harv. L. Rev. 1833, 1940 (2001) (“[S]tate courts, because of their differing

institutional and normative position, should not conform their rules of access to those

that have developed under Article III [of the United States Constitution]. Instead, state

systems should take an independent and pragmatic approach to judicial authority in

order to facilitate and support their integral and vibrant role in state governance.”).

Consequently, appellants should have the opportunity to seek a merits disposition of

their claims.




                              [J-82-2016] [MO: Wecht, J.] - 5
