Cavanaugh v. Davis

440 A.2d 1380, 497 Pa. 351, 1982 Pa. LEXIS 379

• Court: Supreme Court of Pennsylvania
• Decided: February 11, 1982
• Docket: 4 E.D.Misc. Docket 1982
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

Petitioner James R. Cavanaugh seeks a declaration and direction to respondent Secretary of the Commonwealth that the successor to the seat on the Supreme Court of Pennsylvania presently held by Chief Justice Henry X. O’Brien, whose elected term of office expires on January 3,1983, is to be chosen in November of 1982 at the general election immediately preceding the expiration of the term.¹ Respondent has refused to certify the seat for election in 1982, on the basis of his belief that an election for the seat may not be held until the municipal election of 1983. For the reasons that follow, we conclude that the seat occupied by Chief Justice O’Brien is to be filled at the general election of November 1982. Thus we grant the requested relief.

The dispute between the parties has arisen because of the seeming inconsistency of two constitutional provisions, both of which apply to the election of justices of the Supreme Court. Article VII, § 3, of the Pennsylvania Constitution, adopted in 1874, provides:

“All judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances may require. * * * ”

Article V, § 13(a), of the Pennsylvania Constitution, adopted in 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.”

Respondent argues that, because Article V, the Judiciary Article, was adopted more recently than Article VII, the Election Article, the Judiciary Article’s provision for a municipal election should control, superseding the provision of the Election Article which permits “either a general or municipal election, as circumstances may require.” Thus, respondent would have the seat filled from January 1983 to January 1984 by gubernatorial appointment and Senate confirmation, if it is to be filled at all.

Respondent’s argument disregards established principles of constitutional construction. Because the language of the two constitutional provisions at issue relates to the same subject matter, the election of judges, the two provisions must be construed together. See Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 577 (1976); Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976); Weiss v. Zeigler, 327 Pa. 100, 104, 193 A. 642, 644 (1937). See also Statutory Construction Act of 1972, 1 Pa.C.S. § 1932. Moreover, because the Constitution is an integrated whole, effect must be given to all of its provisions whenever possible. See Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962). See also Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a).

When Article VII, § 3, and Article V, § 13, are read in light of these principles, it is clear that the Constitution treats differently two classes of judges, those judges who are chosen by electors of the State at large and those judges who are elected locally. Locally elected judges are to be chosen at municipal elections, which are defined in Article VII, § 3, as elections held in odd-numbered years. No exception to this rule is provided. By contrast, although judges elected state-wide ordinarily are to be chosen at municipal elections, an explicit constitutional exception is provided for election at a general election “as circumstances may require.”

Where, as here, the term for a judicial seat filled by the electors of the State at large is scheduled to expire in an odd-numbered year, “circumstances . . . require” that the succeeding justice be elected at a general election, the election that immediately precedes the expiration of the term. This conclusion is compelled by the constitutional preference for election over appointment of judges, a preference that is demonstrated and implemented by Article VII, § 3, and Article V, § 13.² As this Court has unanimously stated,

“whenever possible, judicial officers shall be elected by a complete electoral process. The appointive process of section 13(b) [of Article V of the Pennsylvania Constitution] was intended to fill a judicial vacancy only until the office could again be filled by a popularly elected officer.”

Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 576 (1976). Accord, Barbieri v. Shapp, 476 Pa. 513, 520, 383 A.2d 218, 222 (1978) (Barbieri II) (“appointment procedure of section 13(b) is a stopgap to fill seats that unexpectedly fall vacant”); Leedom v. Thomas, 473 Pa. 193, 195, 199, 373 A.2d 1329, 1330, 1332 (1977) (“section 13(b) . . . ‘was not intended to frustrate the electoral process’ ”). This constitutionally mandated preference for election would be defeated if a vacancy occurring at the end of a fixed term in a state-wide judicial office were to be filled by appointment simply because that vacancy, as here, occurs in an odd-numbered, rather than an even-numbered, year.

Respondent’s belief that the election should be held in 1983 is based upon the opinion announcing the judgment of the Court in Barbieri v. Shapp, 470 Pa. 463, 368 A.2d 721 (1977) (Barbieri I) (plurality). There in a footnote, former Chief Justice Jones, joined by only one other member of the Court, observed with reference to the presently disputed constitutional provisions: “When read and construed together, it is clear that the more recent amendment supersedes and prevails over the older, general provision.” 470 Pa. at 468 n.6, 368 A.2d at 724 n.6. This statement is neither precedential nor persuasive authority. The statement is not germane to the only issue disposed of in that opinion, whether the extension of “present terms” of Superior Court judges provided for by Section 2 of the Schedule to Article V of the Constitution included the term of a Superior Court judge who had been elected prior to the effective date of the Schedule but who had not assumed office as of that date. Moreover, the observation of former Chief Justice Jones overlooks the fact that the two constitutional provisions in dispute can be construed as compatible, and thus must be so construed. As has been shown, Article V, § 13(a), provides a general rule that state-wide judges are to be elected at municipal elections, while Article VII, § 3, provides a specific exception authorizing the election of state-wide judges at general elections “as circumstances may require.”

The decision of the Commonwealth Court in Barbieri v. Thornburgh, 42 Pa.Cmwlth. 1, 400 A.2d 653 (1979), is equally unpersuasive. That decision relied upon the dictum and non-decisional language of Barbieri I to hold that the anticipated vacancy on the Supreme Court at the expiration of the term of then Chief Justice Eagen should be filled by appointment until the next municipal election. That decision, which was never appealed to this Court, is at odds with our holding today and is expressly disapproved.³ .

In Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978) (Barbieri II), this Court rejected arguments that the seats of four common pleas court judges who reached mandatory retirement age prior to an upcoming municipal election should be filled by gubernatorial appointment pursuant to Pa.Const. art. V, § 13(b), “for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs,” and not filled at the upcoming election. Although the Court acknowledged that “a narrow, technical construction” of the appointment clause would permit such appointments, it recognized that a deferred election would frustrate “the intent of the framers and of the People of the Commonwealth, who adopted section 13 intending that whenever possible judges are to be elected.” In holding that “the ‘ten month’ provision of section 13(b) does not apply where the end of a fixed term — expiration of the judge’s elected term or attainment of mandatory retirement age — produces the vacancy,” the Court reasoned:

“The judge’s mandatory retirement date is as easily and as certainly known in advance as the date upon which the regular term of a nonretiring judge will expire. Potential candidates, election officials and the voting public have sufficient notice to prepare for the election, even though the judge has not yet retired at the time the election process begins.”

476 Pa. at 521-22, 383 A.2d at 222.

This reasoning is equally applicable here. The date upon which the twenty-one year term of Chief Justice O’Brien will expire has been known since his assumption of office, and there has been ample notice to prepare for the election of his successor. Thus, given the absence of a constitutional prohibition against the election of a Supreme Court justice in a general election year, the affirmative constitutional preference for election over appointment, and the explicit language of Article VII, § 3, that provides for the election of state-wide judicial officers at a general election “as circumstances may require,” the successor to the seat presently held by Chief Justice O’Brien must be elected at the general election of 1982.

Accordingly, it is ordered that the judicial office of Chief Justice Henry X. O’Brien, which expires on January 3, 1983, be filled by election at the November 2, 1982, general election;

It is further ordered that respondent Secretary of the Commonwealth give notice forthwith to all persons entitled to notice under the Election Code, 25 P.S. § 2865, that the above judicial office will be listed for election on the May 18, 1982, primary ballot and on the November 2, 1982, general election ballot;

It is further ordered that respondent perform all other acts necessary and proper to assure that the above judicial office shall be filled at the November 2, 1982, general election.

NIX, J., files a dissenting opinion.

1 . Petitioner, presently a judge of the Superior Court, has declared his intention to be a candidate for the judicial office held by Chief Justice O’Brien.

The present action for a declaratory judgment and a writ of mandamus was filed in the Commonwealth Court. Upon the application of petitioner, this Court assumed plenary jurisdiction on January 22, 1982. See 42 Pa.C.S. § 726.

2 . This conclusion is also compelled by “the long-established public policy of our state which allows but a short time to intervene between an election and the assumption of office.” Commonwealth ex rel. Barratt v. McAfee, 232 Pa. 36, 45, 81 A. 85, 88 (1911). For this reason, despite disagreement as to the appropriate resolution of the case, all members of the Court in Barbieri v. Shapp, 470 Pa. 463, 368 A.2d 721 (1977) (Barbieri I), expressed agreement that where an office is expected to become vacant in an odd-numbered year, it would be inappropriate to hold an election for that office at the nearest preceding municipal election almost fourteen months earlier. Of course, on this record such an unwise procedure is not even an available option.

3 . Because we hold that Article VII, § 3, and Article V, § 13, are compatible, we do not reach the issue of whether the Constitutional Convention of 1967-1968 was empowered to revise or repeal constitutional provisions other than those enumerated in the referendum that authorized the convening of the Convention. Article VII, the Election Article, was not among the enumerated articles.