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LYNNE M. ABRAHAM v. MILTON J. SHAPP (02/08/79)

decided: February 8, 1979.

LYNNE M. ABRAHAM, JUDGE OF THE MUNICIPAL COURT OF PHILADELPHIA, PETITIONER,
v.
MILTON J. SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, BARTON A. FIELDS, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, AND LOUIS C. METE, COMMISSIONER OF BUREAU OF ELECTIONS, COMMISSIONS AND LEGISLATIONS FOR THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS, AND THE HONORABLE JOHN A. MACPHAIL AND THE HONORABLE RICHARD DISALLE, INTERVENING RESPONDENTS, PENNSYLVANIA BAR ASSOCIATION, AMICUS CURIAE



No. 1 E. D. Misc. Dkt. 1979, Petition for Review

COUNSEL

Lynne M. Abraham, Philadelphia, pro se.

J. Justin Blewitt, Jr., Acting Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., for respondents.

David B. Fawcett, Jr., Pittsburgh, for Pa. Bar Association, amicus curiae.

Gregory M. Harvey, Philadelphia, for intervenors.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 484 Pa. Page 575]

OPINION OF THE COURT

The substantive issue presented in this matter involves the constitutionality of Act No. 1978-257, § 1(b)(3), Pennsylvania Legislative Service (Purdon), 1978 No. 6, p. 866 [hereinafter: Act No. 1978-257, § 1(b)(3)], which provides that 42 Pa.C.S.A. § 3131 shall be amended to read:

"(b) Retention election after initial term by transfer or appointment. -- Any of the following may file a declaration for candidacy for retention election with the Secretary of the Commonwealth on or before the first Monday of January of the year preceding the year in which his term of office expires:

(3) A person appointed to the Commonwealth Court who:

[ 484 Pa. Page 576]

(i) shall have held office as an elected judge of a court of common pleas and shall not have been defeated for re-election or retention election;

(ii) shall hold an appointive term on the Commonwealth Court which when added to his other service as a judge of a court of common pleas and/or the Philadelphia Municipal Court (whether or not continuously or on the same court and whether by election or appointment) shall aggregate at least ten years as of the date of expiration of such appointive term on the Commonwealth Court; and

(iii) shall have been appointed to the Commonwealth Court pursuant to any executive order then in effect relating to the selection and screening of qualified nominees for appointment to the court."

More particularly, the issue may be framed as whether the Legislature may constitutionally authorize the filing for retention, rather than election,*fn1 by a person appointed to the Commonwealth Court*fn2 but never elected by the electors of the Commonwealth to that judicial position.

Our analysis begins with certain firmly established principles. "Every presumption is in favor of the constitutionality of legislative acts, Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(3) (Supp.1977) . . . ." In re William L., 477 Pa. 322, 329, 383 A.2d 1228, 1231 (1978); see also Triumph Hosiery v. Commonwealth, 469 Pa. 92, 364 A.2d 919 (1976). Also, "[c]courts may not declare a statute unconstitutional 'unless it clearly, palpably, and plainly violates the Constitution.'" [Emphasis in original.] Tosto v. Penn. Nurs. Home Loan Agcy., 460 Pa. 1, 16, 331 A.2d 198, 205

[ 484 Pa. Page 577]

(1975), quoting Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). But, instantly, despite the presumptions, we conclude the constitutional challenge brought by the petitioner must be sustained when the entire constitutional scheme is considered.*fn3

Art. 5, § 13(a) of the Pennsylvania Constitution of 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." [Emphasis added.]

Clearly, section 13(a) sets forth a general mandate*fn4 that judges are to be elected. Cf. Berardocco v. Colden, supra. Furthermore, the section mandates elections for statewide judgeships by the "electors of the Commonwealth." As to non-statewide judgeships, the section specifically requires an election "by the electors of . . . the respective districts in which they are to serve." The implication is clear, judges who are to serve statewide must be elected to do so by the electors who are to be served, namely, the electors of the Commonwealth. Compare Pa.Const. art. 5, § 15 (1874) (repealed) and Commonwealth ex rel. McCormick v. Reeder, 171 Pa. 505, 33 A. 67 (1895). Hence, Act No. 1978-257, § 1(b)(3), by allowing retention for a person never elected to a statewide judicial position by the electors of the Commonwealth

[ 484 Pa. Page 578]

    clearly, palpably, and plainly conflicts with section 13(a)'s mandate.*fn5 Accordingly, only if such a retention is authorized by another section of the Constitution may Act 1978-257, § 1(b)(3) be held constitutional.

Pa.Const. art. 5, § 15(b) (1968), in relevant part, provides:

"A justice or judge elected under section thirteen (a) . . . or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year preceding the year in which his term of office expires." [Emphasis added.]

Section 15(b) specifically exempts certain persons from the general mandate of section 13(a) and permits those specific persons to file for retention election. As here relevant, those persons must have been elected a justice or judge under section 13(a). But section 15(b)'s exemption and authorization is limited in its application not only to elected persons, its application is further limited to persons elected to the judicial position in which they seek to be retained. The section authorizes a filing for retention on a certain date of the year preceding the year "in which his [that person's] term of office expires." [Emphasis added.] If the time requirement for filing for ...


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