An elected constable is not a governmental or quasi-governmental official under the state’s Vehicle Code, the Commonwealth Court has ruled in an issue of first impression.
The ruling is a loss on appeal for Silver Spring Township Constable J. Michael Ward after a unanimous three-judge panel said he should not be exempt from paying a $36 registration fee for two vehicles on which his municipal license plate was correctly revoked.
The decision, affirming a Cumberland County judge in Silver Spring Township State Constable Office v. PennDOT, is one of a handful of state court rulings over the years outlining the powers of constables in the state of Pennsylvania.
In In re Act 147 of 1990, for example, the Pennsylvania Supreme Court decided in 1990 that a constable is a peace officer and belongs "’analytically to the executive branch of the government,’" Senior Judge James Gardner Colins noted in Silver Spring.
In 1997, the state Superior Court in Commonwealth v. Roose vacated a man’s DUI conviction because he had been pulled over and arrested by a constable who the court held was not authorized to take such an action.
Constables may, however, make arrests if they have a warrant, if there’s been a breach of the peace or for any felony that is not under the state’s Vehicle Code, Ward’s attorney clarified.
In an April 18 decision in Silver Spring, the court made clear that constables are not permitted by law to buy a vehicle on behalf of the political subdivision for which they work.
"We find that a constable is not a governmental or quasi-governmental entity under the Vehicle Code and, consequently, that a constable is not exempt from paying the $36 vehicle registration fee," Colins said. "Constable Ward contends he is exempt from the fee because his office is part of the political subdivision of Silver Spring Township. There is no question that Silver Spring Township, if it were to purchase and register vehicles for official use, would qualify for the fee exemption and municipal license plates. However, a constable, created by statute, has no authority whatsoever under that statute to act on behalf of the government unit in which he works."
Ward had argued the trial court erred by deciding a constable is not part of the Silver Spring Township political subdivision, as the position, in his view, qualifies him for an exemption from the vehicle registration fee and allows for its holder to have a municipal license plate.
According to Colins, a Cumberland County judge appointed Ward as constable to Silver Spring Township in November 2008 and he was later elected to that position in November 2009. He started a six-year term in 2010.
In February 2009, Ward purchased a Ford Crown Victoria, the traditional vehicle used for years by police squads and taxi companies around the country, and represented the township constable’s office as the buyer on registration papers.
On a required form with the Pennsylvania Department of Transportation, Ward identified the purchaser of the vehicle as the "’Silver Spring Township Constables Office,’" Colins said. He further listed his home address and left a line for his office blank, Colins said.
According to Colins, a handwritten note on the form (an MV-4ST, according to Colins) specifies a sales tax exemption under "Code 18" (Municipal Authority) and says "’Municipal Tag Free.’" It was unclear whether Ward or PennDOT staffers made those notations.
According to Colins, the trial court found that based on information provided by Ward, PennDOT incorrectly issued a municipal government plate for Ward’s Crown Victoria.
In November 2010, almost a year into his elected term, Ward purchased a 1997 Chevrolet Tahoe and identified the purchaser as the "’Silverspring Twp. Constables Office,’" Colins said. The trial court again found PennDOT erroneously allowed Ward to transfer his government plate to the SUV.
In September 2011, PennDOT suspended the registration for the Tahoe, saying the government plate was issued in error.
Ward appealed and, testifying for himself before the trial court, said the municipal plates allowed him to acquire various accoutrements to outfit his Tahoe as a service vehicle, like a cage for the backseat, window bars, a computer for the front seat and magnetic stars (signifying law enforcement) for display on the windows.
He said all of the gear came out of his fees, which are paid through the individual cases he works on and not taxpayer dollars.
Ward argued that because he had used the gear, and therefore the plates, in several acts as constable, the court was equitably estopped from revoking the registration.
The trial court rejected that argument.
On appeal, Ward also argued that the PennDOT fee was a constitutionally protected "emolument" of the office and, as he argued before the trial court, that PennDOT was equitably estopped from requesting a registration or revoking his license plate because he had justifiably relied on the department’s issuance of the plate.
But the panel rejected that argument because the trial court had found that, given Ward’s testimony, he would have purchased the equipment for his vehicle either way, as he characterized it as necessary for carrying out his job, municipal government plate or not.
Reached for comment, Ward’s attorney said the case was not about the $36; rather, he took the appeal to clarify where constables fit into their local governments.
For Philip M. Intrieri, of Intrieri & Associates in Harrisburg, who also represents the Capital-Area Constables Association in Pennsylvania, that question was out of the court system’s jurisdiction.
"It’s the people who create government," said Intrieri. "Not our courts, and not PennDOT."
Intrieri, who added he and his client have not yet decided whether to appeal the decision, said the Commonwealth Court did not go as far as the lower court, which he said effectively removed the constable from government altogether.
"I think it’s a well-written opinion and it was not unexpected," Intrieri said. "Our main problem with the lower court’s opinion was the inference that constables were not part of government at all. Clearly, the lower court’s ruling on that point went too far."
He said the Commonwealth Court decision, in contrast, simply barred constables from acting on behalf of the governing structure of their political subdivision for the purposes of the vehicle code.
(Copies of the 12-page opinion in Silver Spring Township State Constable Office v. PennDOT, PICS No. 13-0929, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •