Abraham v. Shapp

400 A.2d 1249, 484 Pa. 573, 1979 Pa. LEXIS 814

• Court: Supreme Court of Pennsylvania
• Decided: May 3, 1979
• Docket: 1 E.D. Misc. Dkt.
• Status: Published

Opinions

OPINION OF THE COURT

EAGEN, Chief Justice.

The substantive issue presented in this matter involves the constitutionality of Act No. 1978-257, § 1(b)(3), Pennsylvania Legislative Service (Purdon), 1978 No. 6, p. 866 [hereinafter: Act No. 1978-257, § 1(b)(3)], which provides that 42 Pa.C.S.A. § 3131 shall be amended to read:

“(b) Retention election after initial term by transfer or appointment. — Any of the following may file a declaration for candidacy for retention election with the Secretary of the Commonwealth on or before the first Monday of January of the year preceding the year in which his term of office expires:

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(3) A person appointed to the Commonwealth Court who:

(i) shall have held office as an elected judge of a court of common pleas and shall not have been defeated for reelection or retention election;

(ii) shall hold an appointive term on the Commonwealth Court which when added to his other service as a judge of a court of common pleas and/or the Philadelphia Municipal Court (whether or not continuously or on the same court and whether by election or appointment) shall aggregate at least ten years as of the date of expiration of such appointive term on the Commonwealth Court; and

(iii) shall have been appointed to the Commonwealth Court pursuant to any executive order then in effect relating to the selection and screening of qualified nominees for appointment to the court.”

More particularly, the issue may be framed as whether the Legislature may constitutionally authorize the filing for retention, rather than election,¹ by a person appointed to the Commonwealth Court² but never elected by the electors of the Commonwealth to that judicial position.

Our analysis begins with certain firmly established principles. “Every presumption is in favor of the constitutionality of legislative acts, Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(3) (Supp.1977) . . . .” In re William L., 477 Pa. 322, 329, 383 A.2d 1228, 1231 (1978); see also Triumph Hosiery v. Commonwealth, 469 Pa. 92, 364 A.2d 919 (1976). Also, “[c]ourts may not declare a statute unconstitutional ‘unless it clearly, palpably, and plainly violates the Constitution.’ ” [Emphasis in original.] Tosto v. Penn. Nurs. Home Loan Agcy., 460 Pa. 1, 16, 331 A.2d 198, 205 (1975), quoting Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). But, instantly, despite the presumptions, we conclude the constitutional challenge brought by the petitioner must be sustained when the entire constitutional scheme is considered.³

Art. 5, § 13(a) of the Pennsylvania Constitution of 1968 provides:

“Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve.” [Emphasis added.]

Clearly, section 13(a) sets forth a general mandate⁴ that judges are to be elected. Cf. Berardocco v. Colden, supra. Furthermore, the section mandates elections for statewide judgeships by the “electors of the Commonwealth.” As to non-statewide judgeships, the section specifically requires an election “by the electors of . the respective districts in which they are to serve.” The implication is clear, judges who are to serve statewide must be elected to do so by the electors who are to be served, namely, the electors of the Commonwealth. Compare Pa.Const. art. 5, § 15 (1874) (repealed) and Commonwealth ex rel. McCormick v. Reeder, 171 Pa. 505, 33 A. 67 (1895). Hence, Act No. 1978-257, § 1(b)(3), by allowing retention for a person never elected to a statewide judicial position by the electors of the Commonwealth clearly, palpably, and plainly conflicts with section 13(a)’s mandate.⁵ Accordingly, only if such a retention is authorized by another section of the Constitution may Act 1978-257, § 1(b)(3) be held constitutional.

Pa.Const. art. 5, § 15(b) (1968), in relevant part, provides:

“A justice or judge elected (under section thirteen (a) . or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year preceding the year in which his term of office expires.” [Emphasis added.]

Section 15(b) specifically exempts certain persons from the general mandate of section 13(a) and permits those specific persons to file for retention election. As here relevant, those persons must have been elected a justice or judge under section 13(a). But section 15(b)’s exemption and authorization is limited in its application not only to elected persons, its application is further limited to persons elected to the judicial position in which they seek to be retained. The section authorizes a filing for retention on a certain date of the year preceding the year “in which his [that person’s] term of office expires.” [Emphasis added.] If the time requirement for filing for retention is determined by expiration of “his term,” then section 15(b) impliedly authorizes retention only for an elected person seeking to be retained in “his . . . office.”

“[H]is term of office” or “his . . . office” does not include a term of office or office to which a person has been appointed. Just as section 15(b) refers in the possessive to a term of office, i. e. “his term of office,” so too section 13(a), mandating elections, refers to the term of office to which persons may seek election in the possessive, i. e. “their.” The implication is clear, the term of office and office are possessed by a person if and only if he is elected to it and retention is authorized only if the term of office or office is possessed.

Further support can be found for this view in sections 13(b) and (c). Section 13(b), providing for appointments by the Governor to fill judicial vacancies, refers to the period of appointment as an “initial term,” not as the appointee’s initial term or his initial term. So too, section 13(c) refers to a term of office to which a person is appointed under section 13(b) as an “appointive term” in contrast to use of the possessive in referring to the term in sections 13(a) and 15(b).

Previous rulings of this Court and a close study of section 13(c) further demonstrate the correctness of what we have hereinbefore stated.

In Berardocco v. Colden, supra 469 Pa. at 459, 366 A.2d at 577, and in Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978), we said the appointment process was intended to deal with specific situations and implied the electoral process was favored in the Constitution as written. We now note that section 15(b), exempting certain persons from the general mandate of section 13(a), constitutes an exception to mandated elections. The election process, as favored, takes precedence over the retention process, as well as the appointive process. Certainly, the election process would be thwarted if statewide offices could be filled without an election “by the electors of the Commonwealth.” Pa.Const. art. 5, § 13(a) (1968).

Pa.Const. art. 5, § 13(c) provides:

“The provisions of section thirteen (b) [authorizing appointments] shall not apply either in the case of a vacancy to be filled by retention election as provided in section fifteen (b), or in the case of a vacancy created by failure of a justice or judge to file a declaration for retention election as provided in section fifteen (b). In the case of a vacancy occurring at the expiration of an appointive term under section thirteen (b), the vacancy shall be filled by election as provided in section thirteen (a).”

The words “in the case of” in each instance are used to introduce specific situations, namely where a vacancy will occur to be filled by retention, where a retention declaration is not filed, and where a vacancy occurs at the expiration of an appointed term. It is important to note in the third situation that section 13(c) does not say: in the case of a vacancy which might occur or in case of a vacancy occurring “by failure” of a judge to qualify for retention under fifteen (b) as is present in the second situation; it says in case of a vacancy occurring. [Emphasis added.] The vacancy occurs because, following an appointive term, retention is unavailable and a vacancy will exist. Furthermore, section 13(c) specifically mandates an election under section 13(a) for such a vacancy.

We note other considerations.

First, Act No. 1978-257, § 1(b)(3) requires over nine years of judicial service before continuation in the judicial post may be sought by the retention process; yet, were we to rule this is constitutional, there would be no constitutional impediment to additional legislation reducing the judicial service to a less period of time. We are not persuaded the framers of the Constitution intended this or anything equivalent thereto.

Second, were we to uphold the Act, we would create an incongruous result. Upholding the Act would allow an appointee to the Commonwealth Court to avoid a statewide election entirely. If we were to say this is constitutional, then we must necessarily interpret the constitutional scheme as indicating appointment and retention to the Commonwealth Court following election to a court of common pleas are favored over elections. But see Berardocco v. Colden, supra; Barbieri v. Shapp, supra. Yet, if a person elected statewide declines to file for retention to an appellate court, an appointment is prohibited, section 13(c), and an election is mandated, section 15(b). Hence, upholding the Act would grant retention a favored status to appointees to appellate courts in certain circumstances; while, by its express terms, the constitution would preclude appointment and retention in other circumstances. We do not believe this was intended by the framers of the Constitution.

We have conscientiously studied the arguments advanced in favor of upholding the constitutionality of Act No. 1978-257, § 1(b)(3) and find nothing persuasive. We shall refer to one.

It is argued that retention is an election process and satisfies section 13(a)’s mandate. Unlike the term “election,” retention is specifically defined in the Constitution. Pa.Const. art. 5, § 15(b). Furthermore, section 13(c) and 15(b) mandate and allow the election and retention processes under specifically defined circumstances. Such specific delineation would hardly be necessary were it intended to equate the processes.

Also in the context of a discussion of the election process to fill a public office, we have indicated the right of the elector to select between persons is necessary. Wassen v. Woods, 265 Pa. 442, 446, 109 A. 214 (1919); Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914). Since retention precludes this, it cannot in the context of determining who shall fill a public office be equated with an election.

One further issue needs discussion, namely the timeliness of the filing of the petition or challenge to the declarations for candidacy for retention. It is urged that declaratory relief pursuant to the Act of June 18, 1923, P.L. 840, §§ 1-16, as amended, 12 P.S. §§ 831-846 (Supp.1978-79), should be denied because the Election Code, Act of June 3, 1937, P.L. 1333, art. I, §§ 1 et seq., as amended, 25 P.S. §§ 2600 et seq. (Supp.1978-79) [Hereinafter: 25 P.S. § --], provides the exclusive procedure for objecting to the retention papers filed by intervening respondents. The argument is specifically based on 25 P.S. § 2937 (Supp.1978-79), which, in relevant part, provides:

“All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented . . . .”

Since the instant petition was filed two days after the time allowed by 25 P.S. § 2937 (Supp.1978-79), it is said to be untimely. We do not agree.

25 P.S. § 2937 requires objection to “papers filed within the periods limited by this act,” i. e. the Election Code. This is not such a case. The time limit for the filing of the retention papers here involved is fixed by Pa.Const. art. 5, § 15(b) and 42 Pa.C.S.A. § 3153, not the Election Code.

We entertain the petition seeking declaratory relief for the same reasons as in Barbieri v. Shapp, 470 Pa. 463, 368 A.2d 721 (1977), but we do not imply the Election Code, 25 P.S. §§ 1 et seq., was not intended to govern the retention process in other circumstances. Our present decision is limited to the facts here present.

Accordingly, we heretofore entered the following:

AND NOW, TO WIT, this 8th day of February, 1979, upon consideration of the petition for review filed in the above captioned matter over which jurisdiction was accepted January 19, 1979, Act No. 1978-257, § 1(b)(3), Pennsylvania Legislative Service (Purdon), 1978 No. 6, p. 866, is declared unconstitutional insofar as it authorizes a person to file for retention election to the Commonwealth Court following appointment pursuant to executive order. The declarations for candidacy for retention election filed by intervening respondents are declared void.

The judges for the respective terms of office should be determined in an election by the electors of the Commonwealth pursuant to Pa.Const. art. 5, § 13(a); the Act of June 3, 1937, P.L. 1333, art. I, §§ 101 et seq., 25 P.S. §§ 2601 et seq., as amended (1938) (known as the Pennsylvania Election Code); and, 42 Pa.C.S.A. § 3131(c) (1978), and the Secretary of the Commonwealth should designate the respective offices involved herein as offices for which candidates are to be nominated pursuant to the Act of June 3, 1937, P.L. 1333, art. IX, § 905, 25 P.S. § 2865, as amended (Supp.1978-79).

NIX, J., filed a dissenting opinion. MANDERINO, J., filed a dissenting opinion.

1 . Retention and election processes are distinct processes. Retention as used herein refers to the process by which the electors determine whether a judicial officer shall remain in his position as set forth in Pa.Const. art. 5, § 15(b) (1968), or, more commonly, it refers to a “yes-no” determination. Election refers to the process by which the electors determine which person out of the number properly seeking the judicial position shall occupy it.

2 . Our decision is expressly confined to the intervening respondents, and we express no view as to persons appointed who have already been retained, rather than elected.

3 . In examining the Constitutional scheme, we must interpret it “in its popular sense as understood by the voters who adopted it, Breslow v. Baldwin Township School District, 408 Pa. 121, 182 A.2d 501 (1962); Commonwealth ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751 (1947); Brereton’s Estate, 355 Pa. 45, 48 A.2d 868 (1946). Moreover, related provisions of the Constitution must be read in connection with one another so as properly to ascertain their meaning, Weiss v. Ziegler, 327 Pa. 100, 193 A. 642 (1937).” Berardocco v. Colden, 469 Pa. 452, 458-59, 366 A.2d 574, 577 (1976). See also Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976).

4 . The term “shall” has generally been interpreted as being mandatory. See Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 341 A.2d 95 (1975); Amal. Trans. U. Div. 85 v. Port. A. of Alleg., 417 Pa. 299, 208 A.2d 271 (1965).

5 . Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977), and Berardocco v. Colden, supra, unquestionably indicate that section 13(a) is the starting point for an analysis of issues such as presented here and, also, that the election process is favored over the appointment process. Our textual analysis merely shows that the election process is favored and that that process must involve the electors to be served.