|
Letter to Secretary Cortes
from Caucus General Counsel Regarding Coy's
Former Seat
December 9, 2004
Honorable Pedro A. Cortés
Secretary of the Commonwealth
Room 302, North Office Building
Harrisburg, PA 17120
Dear Secretary Cortés:
I read with interest your December 8th letter to the
Chief Clerk of the House regarding the Writ of Election to fill the vacancy in
the 189th State House district.
Of particular interest is language in the sixth
paragraph of your letter to Mr. Mazia which reads as follows: “Not having been
sworn or seated as a member of the House of Representatives, I do not believe
that either Mr. Perzel or Mr. Smith may exercise the powers and duties of the
office of Representative of the Commonwealth of Pennsylvania or as officers of
the House. See Pa. Const., Art. VI, §3 (requiring administration of the oath of
office to members of the House and Senate and to other public officers).”
If you are correct and neither Mr. Perzel nor Mr.
Smith can exercise the powers and duties of a state representative or as an
officer of the House, query as to whether Mr. DeWeese would not be likewise
constrained. If one presumes that you are correct, a question arises regarding
the legitimacy of the appointment of former Representative Coy to the
Pennsylvania Gaming Control Board on December 1st.
The Pennsylvania Horse Race Development and Gaming
Act empowers the Minority Leader of the House to make an appointment to the
Gaming Control Board. Mr. DeWeese’s initial appointment of Mr. Coy was found to
be invalid under Article II, Section 6 of the State Constitution. That
constitutional disability remained in place through November 30, 2004 when Mr.
DeWeese’s term in the House of Representatives expired.
Under the analysis that you have set forth in your
December 8th letter, it would seem then that Mr. Coy’s second appointment is
invalid because Mr. DeWeese was not in a position to exercise the powers and
duties of the offices of Representative or Minority Leader. Further, under your
theory, it would seem clear that the seat on the Gaming Control Board would
remain vacant until Mr. DeWeese is sworn and seated as a member of the House of
Representatives and he, for a third time, purports to exercise the power of
appointment.
These newly emerging questions about the legitimacy
of Mr. Coy’s service on the Gaming Control Board complicate the organizational
activities of the Board and perhaps make any of its actions in which Mr. Coy
participates susceptible to attack.
As a practical matter, the legitimacy of Mr. Coy’s
appointment should be resolved before proceeding in reliance on its validity.
Sincerely,
Stephen C. MacNett
General Counsel
# # #
|
