                       IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


RICHARD A. SPRAGUE, HON. RONALD                  :   No. 100 MAP 2016
D. CASTILLE, AND HON. STEPHEN                    :
ZAPPALA, SR.,                                    :   Appeal from the Order of the
                                                 :   Commonwealth Court dated October 5,
                        Appellants               :   2016 at No. 517 MD 2016
                                                 :
                                                 :
               v.                                :
                                                 :
                                                 :
PEDRO A. CORTÉS, SECRETARY OF                    :
THE COMMONWEALTH OF                              :
PENNSYLVANIA, IN HIS OFFICIAL                    :
CAPACITY,                                        :
                                                 :
                        Appellee                 :


                            OPINION IN SUPPORT OF REVERSAL

JUSTICE TODD                                                  DECIDED: October 25, 2016

      Underlying the present appeal is the yet-unresolved question of whether the

ballot language — seeking to raise the mandatory retirement age of judges and justices

from 70 to 75 — fairly, completely, and accurately apprises the voters of the

constitutional change they are being asked to approve.           When we last faced this

question in Sprague I1, I came to the considered conclusion that, in failing to inform the

voters that they were increasing the mandatory retirement age, not imposing a

mandatory retirement age for the first time, this ballot language was unconstitutionally

misleading.2   3
                    However, our Court split 3-3 in that case, issuing an order that we were

1
  Sprague v. Cortés, 75 MAP 2016, 2016 WL 4595403 (Pa. filed Sept. 2, 2016)
(“Sprague I”).
2
  The ballot question states:
(continuedC)
“without authority to grant relief and the status quo of the matter prior to the filing of the

lawsuit is maintained.” Sprague I (per curiam order). As a result, regardless of what

one concludes about the merits of the important constitutional question at issue, we

manifestly did not answer that question.        Nevertheless, those Justices in favor of

affirmance would transmogrify our non-decision into a preclusive ruling on the merits,

and affirm the erroneous Commonwealth Court order below. See Opinion in Support of

Affirmance (“OISA”). By stark contrast, and for the following reasons, I would reverse

the Commonwealth Court’s order and remand for further proceedings.

       As noted by the OISA, the constitutional challenge to the ballot language was

brought by Appellants in the Commonwealth Court, and this Court assumed

extraordinary jurisdiction in Sprague I, culminating in a per curiam order from this Court.

As the Court was deadlocked — with three Justices concluding Appellants were correct

in their claim that the ballot language was misleading and three Justices concluding

they were not — we could agree on only one thing, the following order:
              AND NOW, this 2nd day of September, 2016, the Court
              being evenly divided in its determination as to which parties
              are entitled to the grant of summary relief, this Court is
              without authority to grant relief and the status quo of the
              matter prior to the filing of the lawsuit is maintained. See
              Creamer v. Twelve Common Pleas Judges, 281 A.2d 57
              (Pa. 1971) (holding that where this Court was evenly divided
              in a King’s Bench original jurisdiction matter challenging
              gubernatorial appointments to judicial vacancies, the
              appropriate disposition was to enter a per curiam order


(Ccontinued)
             Shall the Pennsylvania Constitution be amended to require
             that justices of the Supreme Court, judges and magisterial
             district judges be retired on the last day of the calendar year
             in which they attain the age of 75 years?
3
  See Sprague I (Opinion in Support of Granting Plaintiffs’ Application for Summary
Relief and Denying Defendant’s Application for Summary Relief by Todd, J., joined by
Dougherty, J., and Wecht, J., in part).



                                    [100 MAP 2016] - 2
                noting that the requested relief could not be granted, thereby
                maintaining the status quo of the matter).

Sprague I (per curiam order). After this Court subsequently declined to remand the

matter to the Commonwealth Court4, Appellants refiled the same constitutional

challenge in that court.     The Commonwealth Court rejected this challenge, without

addressing the merits, and the issue presently before us is whether that court erred in

rejecting Appellants’ new filing on the grounds that this Court already decided the matter

in Sprague I.

         For reasons of efficiency and fairness, courts rightly preclude the same parties

from re-litigating questions that have already been decided. Here, citing our prior order

in Sprague I, the Commonwealth Court rejected Appellants’ present suit under the

doctrine of res judicata.      In doing so, it set forth that doctrine’s basic and well

established governing principles:
                [It is] a doctrine by which a former adjudication bars a later
                action on all or part of the claim which was the subject of the
                first action. Any final, valid judgment on the merits by a court
                of competent jurisdiction precludes any future suit between
                the parties or their privies on the same cause of action.

Sprague v. Cortés, 517 M.D. 2016 at 5 (Pa. Cmwlth. filed Oct. 5, 2016) (quoting R/S

Fin. Corp. v. Kovalchick, 716 A.2d 1228, 1230 (Pa. 1998)) (emphasis added). Stated

differently, to apply the doctrine of res judicata, “the issue or issues must have been

actually litigated and determined by a valid and final judgment.” County of Berks ex rel.

Baldwin v. Pennsylvania Labor Relations Bd., 678 A.2d 355, 359 (Pa. 1996).

         While there is no doubt that our order in Sprague I was final in the sense that it

was this Court’s concluding pronouncement in the matter before us, it was decidedly not

a judgment on the merits, nor did we actually litigate or determine anything. In the prior


4
    This author and Justice Wecht dissented.



                                     [100 MAP 2016] - 3
matter — as now — Appellants posed a simple legal question: does the ballot language

satisfy constitutional standards for clarity? This divided Court could not and did not

answer that question.     That observation, at its simplest, answers the res judicata

question; and the case cited by the OISA, which I discuss below, does not alter that

analysis. It was thus plainly erroneous, in my view, for the Commonwealth Court to bar

Appellants’ present suit on the grounds that we had answered the constitutional

question.

       This straightforward interpretation of our prior disposition is also dictated by the

language of our per curiam order in Sprague I. Critically, we noted therein that, in light

of our 3-3 deadlock, we were “without authority to grant relief.”            Appellee, the

Commonwealth Court, and the OISA ignore the import of this explicit qualifying

language. Because of the deadlock in Sprague I, this Court could agree on only one

thing: that we were unable to act. Contrary to the suggestions of the OISA, we did not

“declin[e]” relief, nor did we decide Appellants were “not entitled to relief.” See OISA at

7.   Instead, we determined that we lacked authority to grant relief. A court lacking the

authority to act lacks the ability to act. Indeed, this point was explicitly made in Creamer

v. Twelve Common Pleas Judges, 281 A.2d 57 (1971), the sole precedent we cited in

our order in Sprague I. There, analogizing our 3-3 deadlock in that case to a tribunal

containing two members who were likewise deadlocked, we stated:
              When a legal or semi-legal tribunal consists of only two
              members, neither one of them can perform an affirmative act
              changing, or which may change, an existing condition; for it
              takes a majority of the whole body to do this, and one is not
              a majority of two.

Id. at 58 (quoting In re First Cong. Dist. Election, 144 A. 735, 739 (Pa. 1928)) (internal

quotation marks omitted and emphasis added). Thus, our declaration in Sprague I that




                                   [100 MAP 2016] - 4
we lacked the authority to act, along with our citation to Creamer, demonstrates that we

took no substantive action — we were unable to act on the merits.

       Moreover, if there could be any ambiguity — and there is none — about the

effect of our pronouncement that we were “without authority to grant relief,” it was

resolved by our statement immediately following: “the status quo of the matter prior to

the filing of the lawsuit is maintained.” These words can only mean that, because of our

deadlock, we intended to return the parties to the status they occupied at a time prior to

our intervention. Again, our citation to Creamer proves this. Therein, as in Sprague I,

we sat in our original jurisdiction, and stated:
              It is a universal rule that when a judicial or semi-judicial body
              is equally divided, the subject-matter with which it is dealing
              must remain in statu[s] quo.

Id. at 58 (quoting In re First Cong. Dist. Election, 144 A. at 739) (internal quotation

marks omitted). That point bears emphasis: we stated that the subject-matter with

which a deadlocked original jurisdiction court is dealing must remain in the status quo.

Obviously, prior to our intervention in Sprague I — the status quo — the parties were

unconstrained by any court’s pronouncements on the constitutional issue at hand, and

Appellants were unencumbered by any judgment on the merits. Yet, the OISA looks

past these clear declarations of non-action and discovers not just a judgment, but a

judgment on the merits. Gazing through the looking glass, the OISA strains to conclude

that, in Sprague I, we simultaneously issued a judgment on the merits and returned the

parties to the status quo. The illogic of this position is patent. A court can issue a

judgment on the merits. A court can restore the status quo prior to litigation. It cannot

do both at the same time.

       Thus, basic principles of res judicata and the explicit text of our order should be

the simple end of this appeal, and indicate summary reversal. However, even were I to



                                     [100 MAP 2016] - 5
accept the characterizations of the OISA that our order in Sprague I was a denial of

extraordinary relief — rather than a simple deadlocked inability to act and restoration of

the status quo — this Court has explicitly held that an order denying extraordinary relief,

without more, has no res judicata effect. In County of Berks, supra, we addressed the

contention that our denial of an application for extraordinary relief precluded a latter suit

by the same parties on the same question in the Commonwealth Court. Finding the

matter to be one of first impression, we surveyed other jurisdictions, and noted:
              The general rule is that where the extraordinary jurisdiction
              of a court is unsuccessfully invoked and the court does not
              expressly adjudicate the matter on the merits, then there is
              no preclusive effect and the petitioning party is free to
              pursue his claim in any appropriate forum.

Id. at 359 (citing cases). Recognizing that there are reasons beyond the lack of legal

merit for this Court to deny extraordinary relief, we held that an order without opinion

denying such relief had no preclusive effect:
              Therefore, we now hold that where this court has issued an
              order without opinion denying extraordinary relief, that order
              alone is insufficient to establish that there has been a full
              and final adjudication of the claims raised. Thus, because
              the bar of res judicata is inapplicable to this matter,
              Appellees' first claim does not provide a basis for affirming
              the decision of the Commonwealth Court.

Id. Thus, even if our order in Sprague I were viewed as a denial of relief, on this

additional precedential authority, the Commonwealth Court erred in rejecting Appellants’

suit on the basis of res judicata.5

5
  The OISA attempts to evade the import of County of Berks by noting that, in that case,
we issued an order denying an application for extraordinary relief, whereas, in Sprague
I, we assumed extraordinary jurisdiction, and ultimately issued an order which the OISA
contends had the effect of denying extraordinary relief. OISA at 10. From the point of
view of the parties, and, more critically, for purposes of res judicata, I see no distinction.
In either scenario, relief is denied by simple order. Moreover, I disagree with the OISA’s
superficial contention that the issuance of multiple opinions in Sprague I, which even the
(continuedC)

                                      [100 MAP 2016] - 6
        The OISA cites Hartman v. Greenhow, 102 U.S. 672 (1880), in support of its

contention that our per curiam order was a “final judgment on the merits for purposes of

res judicata.” OISA at 8. First, caselaw from the Supreme Court of the United States

does not control our Court’s determination of the preclusive effect of our orders on the

adjudication of state constitutional claims, inasmuch as our Court is the final arbiter of

such pure questions of Pennsylvania law.        Moreover, as also observed by Justice

Wecht6, this case does not establish the novel jurisprudential proposition offered by the

OISA.

        In Hartman v. Greenhow, the petitioner sought a writ of mandamus from the

Supreme Court of Appeals of Virginia to compel the treasurer of Richmond to accept

petitioner’s tender of state issued bonds as payment of his state tax obligations without

deducting additional state tax from their redemptive proceeds. Petitioner claimed that

the statute under which the treasurer asserted authority to make this deduction violated

the Contract Clause of the United States Constitution. The Virginia Supreme Court

divided 3-3 on the merits of that question, which, under Virginia law, constituted a denial

of the issuance of the writ. The narrow jurisdictional question which the United States

Supreme Court addressed as a threshold matter, from which the OISA’s quotation

derives, was whether the split decision of the Virginia Supreme Court constituted “a final

judgment or decree” under the Judiciary Act of 1787, and the federal high Court

concluded that it did since the effect of the judgment was to deny the writ of mandamus

and to finally conclude that litigation. Importantly, though, the high Court did not purport

to opine on whether the doctrine of res judicata barred the parties from re-litigating the

(Ccontinued)
OISA recognizes are non-precedential, see OISA at 3, makes any difference for
purposes of application of County of Berks. Our order in Sprague I was issued purely
under the authority of Creamer.
6
  See Opinion in Support of Reversal (Wecht, J.) at 3 n.2.



                                   [100 MAP 2016] - 7
issue of the propriety of the denial. Indeed, the high Court went on in its opinion to

conclude that the statute was in fact repugnant to the United States Constitution and

granted petitioner relief. The high Court’s ruling, therefore, has no bearing on the

question of the preclusive effect of an order of a state’s highest court on further litigation

in the tribunals of that state, which is the issue we are considering in the present appeal.

       Finally, I must respond to the OISA’s waiver and constitutional structure

arguments. The OISA claims that Appellants’ choice to seek extraordinary relief from

our Court at the time they originally commenced their action in the Commonwealth

Court somehow precluded them from further seeking relief in the Commonwealth Court

after our Court could not render a decision on their claims.               The OISA deems

Appellants’ effort to seek a final determination from this Court regarding a paramount

question of constitutional interpretation “tactical litigation,” contending:
              Appellants were given every opportunity to have the
              Commonwealth Court adjudicate the substance of their legal
              challenge to the ballot question, but Appellants voluntarily
              and purposefully waived such opportunity by seeking this
              Court’s extraordinary jurisdiction pursuant to Section 726 of
              the Judicial Code . . . thereby forfeiting their right to appellate
              review of an original jurisdiction decision.

OISA at 10. Respectfully, what Appellants were seeking from the Commonwealth Court

with their new filing in this matter was not appellate review of our per curiam order, but,

rather, what they have always requested: an adjudication on the merits.

       When Appellants asked that our Court assume extraordinary jurisdiction, they did

so with the reasonable expectation our Court would resolve the constitutionality of this

ballot question with a ruling on the merits of their claims; however, our Court proved

unable to act. The OISA’s assertion that Appellants’ right to have this matter now heard

in the Commonwealth Court was forfeited, even though our Court was unable to render

a decision on the merits of their claims, is unsupported by either Article V, Section 2(a)



                                     [100 MAP 2016] - 8
of our Constitution, the plain language of Section 726 of the Judicial Code, prior

precedent from our Court, or the language of our per curiam order in Sprague I. Indeed,

Section 726 affords our Court maximum flexibility after we have exercised our

extraordinary jurisdiction to “otherwise cause right and justice to be done.” 42 Pa.C.S.

§ 726.    Here, causing right and justice to be done requires an adjudication of this

important issue on the merits.

         Furthermore, while it is certainly true that Article V, Section 2(a) of our

Constitution vests the supreme judicial power of the Commonwealth in this Court, as the

OISA avers, the vesting of such great power in our Court also creates the highest

obligation to exercise that power to achieve fundamental justice, not only for the

individual litigants, but for all of the people of this Commonwealth. Instead, we are

permitting the Commonwealth Court’s erroneous decision on res judicata to stand, and

a constitutional question to go unanswered.

         Today, as in Sprague I, this Court is deadlocked, for reasons I again find hard to

fathom. Although the present issue before us is a purely procedural one, by contrast,

the underlying constitutional question could not be more important, as it concerns the

people’s power to amend their Constitution, and specifically the question of whether

they have been fairly, completely, and accurately apprised of a proposed change to our

charter. With today’s inaction by this Court, it appears that the present parties, and

more importantly the public, will go to the polls on November 8 without ever receiving an

answer to that fundamental question.

         Justices Dougherty and Wecht join this opinion.




                                    [100 MAP 2016] - 9
