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ALEXANDER F. BARBIERI v. MILTON J. SHAPP (02/03/78)

decided: February 3, 1978.

ALEXANDER F. BARBIERI, INDIVIDUALLY AND ACTING IN HIS OFFICIAL CAPACITY AS THE COURT ADMINISTRATOR OF PENNSYLVANIA, PETITIONER-APPELLANT,
v.
MILTON J. SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, C. DELORES TUCKER, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, AND LOUIS C. METE, COMMISSIONER OF THE BUREAU OF ELECTIONS, COMMISSIONS AND LEGISLATION FOR THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS-APPELLEES



COUNSEL

Jonathan Vipond, III, Eve L. Cutler, Philadelphia, for petitioner-appellant.

Melvin R. Shuster, Deputy Atty. Gen., Vincent X. Yakowicz, Sol. Gen., Harrisburg, for respondents-appellees.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion in which Nix, J., joined.

Author: Roberts

[ 476 Pa. Page 517]

OPINION OF THE COURT

Four common pleas judges reached mandatory retirement age in the summer and fall of 1977. Pa.Const. art. V, § 16(b). Appellees, the Governor, the Secretary of the Commonwealth, and the Commissioner of the Bureau of Elections, Commissions, and Legislation, did not list these judgeships for election at the November, 1977, municipal elections. The Election Code requires that all positions to be filled at the municipal election be listed by the thirteenth Tuesday before Primary Day.*fn1 This year the thirteenth Tuesday was February 15, 1977. On March 1, 1977, appellant, the Court Administrator of Pennsylvania, filed a petition for review in the Commonwealth Court, asking that appellees be required to list these judgeships for election.*fn2 Appellees responded that under Pa.Const. art. V, § 13(b), these judgeships should not be listed this year, but should be filled by gubernatorial appointment until the November, 1979, municipal election. The Commonwealth Court granted appellees' motion for judgment on the pleadings and dismissed

[ 476 Pa. Page 518]

    the complaint. This appeal followed.*fn3 On October 26, 1977, this Court reversed the Commonwealth Court and ordered that the judgeships be listed for the November, 1977, municipal election, and noted that opinions would follow.*fn4 Mr. Justice Nix and Mr. Justice Manderino dissented from the order.

I

Appellees initially argue that the Court Administrator has no standing to raise the issue herein. We do not agree.

The Court Administrator is a constitutional officer, Pa.Const. art. V, § 10, whose specific duties are detailed in the Rules of Judicial Administration, Rules 501 et seq. He is responsible for the "prompt and proper disposition of the business of all courts and justices of the peace." Rule 501. This duty gives him an interest in insuring that seats required to be filled by an election are in fact filled in that manner, so that courts and justices of the peace may promptly and properly dispose of litigation.

The Court Administrator disburses funds appropriated for the operation of the judicial system and maintains records of the qualifications and employment status of all persons in the judicial system. Rule 504. He is directly concerned with the constitutional qualification of judges to sit. Because he is responsible for disbursing both salaries and expense money to judges, he is responsible for ensuring that those who claim money as judges are constitutionally entitled to their positions. If appellant is placed in the position of paying funds to judges who have been selected for office improperly, he will suffer in his official capacity

[ 476 Pa. Page 519]

    the most traditional kind of "substantial," "direct" and "immediate" harm, pecuniary loss to the judicial system. See generally William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 191, 221, 346 A.2d 269, 280, 295 (1975) (plurality opinion of Roberts, J., and concurring opinion of Eagen, J.).*fn5

II

The Pennsylvania Constitution establishes a system of elected judges. Pa.Const. art. V, § 13(a) & (b) provides:

"§ 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. If the vacancy occurs during the session of the Senate, 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. If the vacancy occurs during sine die adjournment of the Senate such appointment shall not require the advice and consent of the Senate. The person so appointed shall serve for an initial term ending on the first

[ 476 Pa. Page 520]

Monday of January following the next municipal election more than ten months after the vacancy occurs."

This Court has emphasized that this section reflects a strong "public policy in favor of having the citizens served by . . elected [judges]." Leedom v. Thomas, 473 Pa. 195, 201, n. 5, 373 A.2d 1329, 1333 n. 5 (1977).

Thus, whenever possible, election is the constitutionally prescribed method for filling judgeships in Pennsylvania. The appointment procedure of section 13(b) is a stopgap to fill seats that unexpectedly fall vacant. As this Court said unanimously in Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 577 (1976) (footnote omitted):

"whenever possible, judicial officers shall be elected by a complete electoral process. The appointive process of section 13(b) was intended to fill a judicial vacancy only until the office could again be filled by a popularly elected officer. The 'ten month' provision was designed simply to insure that the electoral process would be complete with a regularly conducted primary election, as well as a municipal election."

We reaffirmed this doctrine in Leedom v. Thomas, supra, emphasizing that "section 13(b) . . . 'was not intended to frustrate the electoral process.'" 473 Pa. at 199, 373 A.2d at 1331-32. Thus, we must construe this constitutional provision so that its effect is consistent with the intent we have found it to express.

When a judge reaches mandatory retirement age less than ten months before a municipal election, or between Election and Inauguration Days, a regularly conducted election to fill the judge's seat may be held without waiting two years for the next municipal election. 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 ...


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