Commonwealth v. Wetton

648 A.2d 524, 538 Pa. 319, 1994 Pa. LEXIS 463
Supreme Court of Pennsylvania·Decided September 30, 1994·Published·Cited by 5 cases

Opinion

OPINION

PER CURIAM.

This matter was decided by an Order, entered March 10, 1994, stating, “The Court being equally divided, the Order of the Superior Court is affirmed.” Voting in favor of affirmance were Mr. Chief Justice Nix, Mr. Justice Papadakos, and Mr. Justice Montem-uro; in favor of reversal were Mr. Justice Flaherty, Mr. Justice Zappala, and Mr. Justice Cappy. The Order also contained a notation indicating that “Mr. Justice Mon-temuro, who was an appointed Justice of the Court at the time of argument, participated in the decision of this case in his capacity as a Senior Justice.”

On March 24, 1994, the Appellees filed an Application for Reargument pursuant to Pa. RA.P. 2542. This Application also included at the outset, as an alternative claim for relief, a pleading identified as a “Motion for Disqualification or Recusal of Mr. Justice Montemuro.”1 The essence of the Motion is that Mr. Justice Montemuro was without lawful authority to participate in the decision of the case. The Appellants thus suggest that his vote should be disregarded, and our Order of March 10,1994, should be corrected to indicate that the Order of the Superior Court is reversed, since three Justices voted to reverse and two voted to affirm.

The Appellants make a two-fold attack on Mr. Justice Montemuro’s authority. In addition to challenging the Court’s action in assigning him as a Senior Justice, they make an alternative argument disputing his ability to participate as a Senior Justice in the decision of a matter that was argued when he was serving a term as an appointed Justice and had not been decided before that term expired.

We begin by observing that this Motion for Disqualification or Recusal is extremely unusual. In practically all other situations, a disqualification or recusal motion is properly directed to and decided by the jurist whose participation is challenged, Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989); Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Crawford’s Estate, 307 Pa. 102, 160 A. 585 (1932). Due to the unique nature of the argument, however, this Motion is correctly addressed to the entire Court, because it is based not on questions about Mr. Justice Montemuro’s ability to decide the case in a fair and impartial manner, but on questions about the Court’s authority to assign him as a Senior Justice and the relationship between such an assignment and his previous term by appointment of the Governor to fill the vacancy created upon Mr. Justice McDermott’s death.

The Appellants first argue that since Mr. Justice Larsen has not been removed from office pursuant to either Article V, Section 18 (judicial discipline) or Article VI, Section 6 (impeachment) of the Pennsylvania Constitution, there is no vacancy to which Mr. Justice [526]*526Montemuro could be appointed.2 They characterize his assignment as creating an eighth seat on the Court, contrary to Article V, Section 2(b) of the Pennsylvania Constitution, which specifies that the Court “shall consist of seven justices”. They also argue that even if there were a vacancy, the power to fill vacancies is reserved to the Governor, Article IV, Section 8(b); Article V, Section 13(b).

The Appellants are correct in asserting that only the Governor has authority to fill a vacancy. They have also correctly discerned that Mr. Justice Larsen’s suspension pursuant to the Order entered at No. 127 Judicial Administration Docket No. 1 did not create a vacancy. These points, however, are entirely irrelevant to the question at hand.

Mr. Justice Montemuro is sitting by designation as a Senior Justice. Article V, Section 16(c) of the Pennsylvania Constitution provides that

A former or retired justice or judge may, with his consent, be assigned by the Supreme Court on temporary judicial service as may be prescribed by rule of the Supreme Court.

This is the only reference in the Constitution to the assignment of senior judges.

Statutory provisions relating to senior judges are found in the Judicial Code, Title 42 of the Pennsylvania Consolidated Statutes. In the definitions section, Section 102, the following are specifically defined:

“Judge.” Includes a justice of the Supreme Court. Except with respect to the power to select a president or administrative judge, to appoint and remove the administrative staff of the court and to adopt rules of court and other similar matters, the term includes a senior judge.
“Senior judge.” A former or retired judge who shall not have been defeated for reeleetion and shall have served as a judge (whether or not continuously or on the same court) by election or appointment for an aggregate of at least ten years and any duly elected judge having an aggregate of six years of service as a judge who is required to retire at age 70 and who, with his consent, is assigned on temporary judicial service pursuant to section 4121(b) (relating to assignment of judges).

Section 4121 provides for the temporary assignment of judges in two parts. Subsection (a) deals with the temporary assignment of active judges:

(a) General rule. — Subject to general rules any judge may be temporarily assigned to another court and may there hear and determine any matter with like effect as if duly commissioned to sit in such other court.

Subsection (b) extends this rule to senior judges:

(b) Senior judges. — A senior judge may, with his consent, be assigned on temporary judicial service pursuant to subsection (a).

[Subsection (c) states an exception not relevant to this inquiry.]

The Rules of Judicial Administration treat the subject of Assignment and Transfer of Judges in Chapter 7. Rule 701(a) repeats the definitional requirements as found in 42 Pa.C.S. § 102, and indicates that a former or retired judge shall file with the Administrative Office a statement of the period during which he is willing to be assigned. Other relevant portions of Rule 701 are as follows:

(d) Request for the Assignment of Additional Judges. Whenever the president judge of a court is of the opinion that the assignment of one or more judges to his court on temporary judicial service is necessary and proper for the prompt and proper disposition of the business of the court, he shall transmit a written request for judicial assistance to the Administrative Office.
(e) Recommendation by Administrative Office and Action by the Chief Justice. The Court Administrator shall recommend to the Chief Justice, and the Chief Justice, when he deems it appropriate too so may, by order, effectuate the assignment of any retired or former judge consenting thereto or any active judge to temporary judicial [527]*527service on any court to fulfill a request made by the president judge thereof or when, by reason of case inventories or in the interest of justice, additional judicial assistance is required by any court.
(f) Duration of Order of Assignment.

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Commonwealth v. Wetton, 648 A.2d 524, 538 Pa. 319, 1994 Pa. LEXIS 463 (Pa. 1994).

648 A.2d 524 (Commonwealth v. Wetton) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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