Barbieri v. THORNBURGH

400 A.2d 653, 42 Pa. Commw. 1, 1979 Pa. Commw. LEXIS 1439

• Court: Commonwealth Court of Pennsylvania
• Decided: April 12, 1979
• Docket: 394 C.D. 1979
• Status: Published

Opinions

Opinion by

President Judge Bowman,

By a petition for declaratory judgment filed February 22, 1979, which we regard and act upon as a petition for review in the nature of declaratory judgment, Pa. R.A.P. 1501, 1503, the Court Administrator of Pennsylvania asserts that a question has been raised as to when vacancies which will occur at the end of the elective terms of office of Chief Justice Michael J. Eagen and Associate Justice Henry X. O’Brien are to be filled, which in turn, depending upon resolution of this issue, brings into issue the appointive power of the Governor.

As our original jurisdiction is being invoked pursuant to Section 761, Judicial Code, 42 Pa.C.S. §761, in an action or proceedings against Commonwealth officials,¹ there must be a governmental determination to support the cause of action asserted, Pa. R.A.P. 102, 1502. We perceive no governmental determination whatsoever either in the form of action or nonaction with respect to the vacancy which will occur upon the expiration of the elective term of office of Associate Justice O’Brien on the first Monday of January, 1983. We, therefore, decline to entertain the petition for review insofar as it attempts to invoke our original jurisdiction as to the election of his successor. However, we perceive a governmental determination to have been made as to the election of a successor to the Chief Justice whose elective term of office expires on the first Monday of January, 1981, such determination being that of not certifying the election of his successor as one to be conducted during the municipal election year 1979, which is one of the four alternative solutions proffered by the Court Administrator to the issue raised.²

The facts are relatively simple and undisputed but to juxtapose them within the framework of our present Constitution with their origin being embedded in our Constitution of 1874 is, indeed, an elusive task.

In the year 1959, the Chief Justice was elected to the Supreme Court of Pennsylvania and duly commissioned to serve a twenty-one year term of office expiring the first Monday of January, 1981. Article V, Section 2, Constitution of 1874. At that time and until adoption of the Constitution of 1968, the Judiciary Article did not address the question of whether justices and judges elected by the electors of the State at large were to be elected in general election (even-numbered) years or municipal election (odd-numbered) years. Article VII, Section 3, provided that “[a] 11 judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances may require ’ ’ and this same provision continues today in this article. However, substantial changes were made to Article V, The Judiciary, by the Constitution of 1968. Bearing upon the issues raised are the following provisions found in this Article :

§13. Election of justices, judges and justices of the peace; vacancies.

(a) 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.

(b) A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. The appointment shall be with the advice and consent of two-thirds of the members elected to the Senate, except in the case of justices of the peace which shall be by a majority. The person so appointed shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.

§15. Tenure of justices, judges and justices of the peace.

(a) The regular term of office of justices and judges shall be ten years....

Recognizing that general election years remain constitutionally mandated as the even-numbered years and municipal election years as the odd-numbered years, the Court Administrator citing the mentioned constitutional provisions poses four possible solutions but has declined to take a position as to which possibility constitutes the proper interpretation of the Constitution of 1968.³ In his petition for review, the possibilities are said to be:

(1) Election in 1979 with, the winner to take office in 1981;

(2) Election in 1980 with the winner to take office in 1981;

(3) Election in 1981 with the Chief Justice to hold over for a year;

(4) Election in 1981 with the Governor’s appointee filling the gap in that election year.

We have no difficulty in rejecting possibilities (2) and (3) as posed by the Court Administrator as being contrary to prior case law addressing these constitutional provisions, albeit in other contexts.

Alternate 2

To elect a successor to the Chief Justice in the general election year 1980 with the successful candidate assuming office on the first Monday of January, 1981 —the date of the expiration of the elective term of office of the Chief Justice — -not only seems counter to the clear and specific provision of Section 13(a), Article V, that judges shall be elected in municipal election years, but would also perpetuate a disavowal of this provision into the future as Justices now are elected to ten year terms. Section 15(a), Article Y. It must also be noted that in Barbieri v. Shapp, 470 Pa. 463, 368 A.2d 721 (1977), former Chief Justice Jones (plurality opinion) concluded that Section 13(a), Article Y, providing that justices and judges shall be elected in municipal election years supersedes and prevails over the provisions of Section 3, Article VII, authorizing such elections in municipal or general election years as the circumstances may require.

Alternate 3

Similarly, to elect a successor to the Chief Justice in the municipal election year 1981 with the successful candidate assuming office on the first Monday of January, 1982, but with the Chief Justice holding over until that latter date is equally unsupportable. It is contrary to a long-standing principle that a court is without power to extend constitutionally fixed terms of judicial office, however appealing the power to do so might appear under extenuating circumstances. Barbieri v. Shapp, supra.

The present Chief Justice when elected under the provisions of the Constitution of 1874, was afforded a single twenty-one year term. Such terms of office are now fixed at ten years. To extend his term of office to one. of twenty-two years simply to solve a problem would be judicial usurpation of power without constitutional support such as was found in Barbieri v. Shapp, supra, with respect to transitional problems created as to Superior Court judges and at least recognized and addressed in the Schedule to the Judiciary Article of the 1968 Constitution. See also Commonwealth ex rel. Barratt v. McAfee, 232 Pa. 36, 81 A. 85 (1911).

Alternates 1 c& 4

The remaining two alternatives each find some support in the competitory concerns expressed in our decisional law and in literal application of at least some of the cited constitutional provisions to their respective factual matrices. We are persuaded that the fourth alternative proposed by the Court Administrator represents the favorable balance of these concerns and does not do violence to the Constitution and is a pragmatic solution to a problem which the drafters of the Constitution of 1968 neither addressed nor contemplated and which makes a search for their intent and that of the electorate in adopting the 1968 Constitution not only elusive but futile.

Both remaining alternative solutions meet the explicit constitutional mandate that the election of justices shall be held in municipal election (odd-numbered) years.

The first alternative — that of electing in 1979 a successor to the Chief Justice who would assume office on the first Monday of January, 1981 — would also appear to meet the requirement that such election be held in the municipal election year “next preceding the commencement” of his term of office. It necessarily produces however, an interval of more than a year between his election and the assumption of office, which runs contrary to a public policy concern that such long intervals should be avoided. In Barbieri v. Shapp, supra, the issue was when Judge Cercone of the Superior Court should run for reelection. Judge Cercone ’s original ten year term was to expire in January, 1979. However, the 1968 amendments to the Constitution specified that judges are to be elected in municipal elections (odd-numbered years). In that case, the election could have been in 1977 or in 1979.

The Court rejected as untenable the argument that Judge Cercone should run in the 1977 municipal election. The Court stated that such a timetable would result in a fourteen month interval between the election and the assumption of office. This, the Court ruled, was against public policy. Moreover, the Court noted such a situation would result in a perpetual fourteen month interval between election and the assumption of office.

The same policy concern applies here and should be avoided where an alternative solution exists. On the other hand, the fourth alternative — that of electing in 1981 a successor to the Chief Justice who would assume office on the first Monday of January, 1982, literally meets the mandate of Section 13(a), Article Y, would solve the problem for the future, would normalize the time span between one’s election and the assumption of office, and would synchronize such election within the general framework of the election of all judges as set forth in Article Y.

The only expressed constitutional or policy concern contrary to this alternative is that of favoring the election of judges over their appointment. Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978). This fourth alternative necessarily invokes the application of the appointive power of the Governor, whereas the first alternative does not. However, the Constitution of 1968 recognizes that vacancies in judicial office will occur under circumstances in which the election process must necessarily be conducted at some future time. In such cases, it cannot be said that the Constitution is any less expressive of the Governor’s appointive power or that it expresses a preference of the election process over the appointive power. To the contrary, its intent, under such circumstances, is as express as is its intent to utilize the election process. We are of the opinion that the Governor’s appointive power is operative and properly applied in solution of the issue before us in that the term of office of the Chief Justice will expire on the first Monday of January, 1981, creating a vacancy at that time with the election process operative in that year to elect his successor. See Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976).

Considering the conflicting public policy concerns confronting us in these two alternatives as expressed in case law and the relevant constitutional provisions, we concluded the fourth alternative should prevail. It avoids a long interval between the election of a successor and his assumption of office, it provides a permanent solution to the unique problem posed, it synchronizes the election of all justices, and while recognizing and allowing for exercise of the appointive power of the Governor, does so without frustration of the election process which will occur in the same year in which the appointive power would come into play. .

Accordingly, we issued our Order of March 26, 1979, with Judge Crumlish, Jr. dissenting.

Per Curiam

Order

Now, March 26,1979, it is hereby declared to be and it is the judgment of the Court that the vacancy which will occur on the first Monday of January, 1981, resulting from the expiration of the term of office of Chief Justice Michael J. Eagen, shall be filled by the election process in the municipal election year 1981 with his elected successor in office to commence his term of office on the first Monday of January, 1982; the interim vacancy to be filled by appointment by the Governor for an appointive term ending the first Monday of January, 1982.

1 The Governor, the Secretary of the Commonwealth and the Commissioner of the Burean of Elections, Department of State, are the named respondents. Collectively they are responsible for the certification of public offices to be filled by the election process.

2 In Thiemann v. Thornburgh, No. 592 C.D. 1979, a companion case, the same issue is raised as to the election of a successor to the Chief Justice upon expiration of his elected term of office, in which petitioner contends the Constitution requires this result and seeks appropriate relief consistent with the conduct of an election in this municipal election year 1979.

3 This posture should and normally would compel us to conclude the want of a ease or controversy in declaratory judgment producing rather an advisory opinion notwithstanding the recent liberal view as to declaratory judgment actions expressed in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (1973). See also Section 7531 et seq., Judicial Code 42 Pa.C.S. §7531 et seq., incorporating the Declaratory Judgments Act into the Judicial Code. However, the companion case of Thiemann v. Thornburgh, supra note 2, does posture a controversy which affords at least a tenuous reason to resolve the issues posed in this proceedings.