MEMORANDUM OPINION BY LEAVITT, President Judge.
Pending before the Court are cross-applications for summary relief. We grant respondents' application in part and deny petitioners' request for relief in mandamus. To the extent petitioners also seek a declaration that multiple provisions of the Pennsylvania Election Code
Petitioners challenge the "anti-fusion" provisions of the Election Code,
Petitioners then filed the pending two-count petition for review addressed to the Court's original jurisdiction. Count I seeks a declaratory judgment that Pennsylvania's anti-fusion ban is unconstitutional. Count II seeks a writ of mandamus directing the Secretary of the Commonwealth to accept the nomination papers proffered by the Working Families Party. The parties stipulated to the facts and filed the pending cross-applications for summary relief.
Mandamus is an extraordinary remedy used to compel official performance of a ministerial act or a mandatory duty. Bronson v. Investigations Division, Bureau of Special Services, Department of Corrections, 650 A.2d 1160 (Pa. Cmwlth. 1994). A petitioner seeking relief in mandamus must demonstrate a clear legal right in the petitioner, a corresponding duty in the respondent, and the absence of an adequate remedy at law. Id. at 1163 (citing County of Allegheny v. Commonwealth, 490 A.2d 402 (Pa. 1985)). This Court has held that "the use of mandamus to compel public officials to act in violation of a statutory duty is not the proper procedure for testing the constitutionality of a statute." Jamieson v. Pennsylvania Board of Probation and Parole, 495 A.2d 623, 625-26 (Pa. Cmwlth. 1985).
Petitioners recognize that Commissioner Marks initially rejected the nomination papers because Candidate had altered the form of the statutory candidate's affidavit. They also acknowledge that Section 951 of the Election Code requires as follows:
25 P.S. §2911(e)(5) (emphasis added). Petitioners acknowledge that Candidate was nominated pursuant to nomination papers filed by the Democratic Party.
Relief in the nature of mandamus is appropriate only when it is clear that respondents owe a legal duty to petitioners and that they have failed to perform that duty. Here, petitioners recognize that they did not offer nomination papers that conform to the statutory requirements. Thus, Commissioner Marks properly rejected the papers. Mandamus is not the proper procedure for testing the constitutionality of Section 951 of the Election Code. Jamieson, 495 A.2d at 625-26.
Declaratory judgment is not similarly defined. Petitioners assert that the various provisions of the Election Code that preclude their nomination of a candidate who shares their position on issues of political importance just because a political party previously nominated that person are unconstitutional. According to petitioners, the Pennsylvania ban on multiple nominations of a single person violates their constitutional rights as established by Article I, Sections 2,
Accordingly, petitioners' application for summary relief is denied, and respondents' cross-application for summary relief is granted as to Count II of the petition for review; Count II (relating to mandamus) is dismissed. The Chief Clerk shall list the parties' cross-applications for summary relief as they relate to Count I (relating to declaratory judgment) for argument before the Court en banc in December in Harrisburg.
AND NOW, this 30
The Chief Clerk shall list for argument the parties' cross-applications for summary relief as they relate to Count I (relating to declaratory judgment) before the Court en banc on the December argument list in Harrisburg.