Chester B. Muroski, Charles P. Gelso, Thomas J. Glenn, Jr., Malcolm M. Limongelli, Wilkes-Barre, for appellant-intervenor.
Stephen Yanoshak, Gilford Cappellini, Herman E. Cardoni, Sr., Wilkes-Barre, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.
This appeal challenges the validity of Section 602(b) of the County Code, Act of August 9, 1955, P.L. 323, § 602(b), 16 P.S. § 602(b). Appellant, Joseph Tirpak, contends that section is an unconstitutional infringement of his First Amendment rights.
Appellant was elected to the office of controller of Luzerne County for a term of four years commencing in January, 1974. From February, 1968, until December, 1973, he served as chief deputy recorder of deeds for Luzerne County, resigning that post when elected controller. On January 7, 1974, Stephen Yanoshak (appellee) refused to relinquish possession of the office to appellant contending appellant was ineligible to hold that position.
Appellant was granted leave to intervene as a party plaintiff in an action of quo warrantor brought against appellee. A hearing was held before Judge Harry M. Montgomery, specially presiding, on April 8, 1974. On May 2, 1974, he held that appellee was lawfully occupying the office of controller and dismissed the complaint. This appeal followed.
Appellant, who served as chief deputy recorder of deeds until December 1973, is ineligible to hold the office of controller until December, 1975, if Section 602(b) is valid. Commonwealth ex rel. Brothers v. McDowell, 359 Pa. 304, 59 A.2d 169 (1948). Section 602(b) states:
"The . . . recorder of deeds . . . and their chief clerks or deputies, shall be ineligible, during their continuance in such office and for two years thereafter, to the office of county controller."
Appellant attacks the constitutional validity of Section 602(b) on several grounds. First, he argues that there is no compelling state interest to justify Section 602(b)'s infringement on his First Amendment rights.
This Court has stated that the First Amendment protects freedom of political expression and activity and that the state must show a compelling interest in legislation restricting the exercise of such First Amendment rights. Commonwealth ex rel. Specter v. Moak, 452 Pa. 482, 307 A.2d 884 (1973). Since running for and holding political office are forms of political expression there must be ...