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ALEXANDER F. BARBIERI v. RICHARD L. THORNBURGH (04/12/79)

decided: April 12, 1979.

ALEXANDER F. BARBIERI, COURT ADMINISTRATOR OF PENNSYLVANIA, PETITIONER
v.
RICHARD L. THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; ETHEL D. ALLEN, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA; LOUIS C. METE, COMMISSIONER OF THE BUREAU OF ELECTIONS, COMMISSIONS AND LEGISLATIONS FOR THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Original jurisdiction in case of Alexander Barbieri, Court Administrator of Pennsylvania v. Richard L. Thornburgh, Governor of the Commonwealth of Pennsylvania; Ethel D. Allen, Secretary of the Commonwealth of Pennsylvania; Louis C. Mete, Commissioner of the Bureau of Elections, Commissions and Legislations of the Commonwealth of Pennsylvania.

COUNSEL

Jonathan Vipond, III, with him Kathleen M. Quinn, for petitioner.

Robert E. Kelly, Deputy Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judges DiSalle, Craig and MacPhail did not participate. Opinion by President Judge Bowman. Dissenting Opinion by Judge Crumlish, Jr.

Author: Bowman

[ 42 Pa. Commw. Page 3]

By a petition for declaratory judgment filed February 22, 1979, which we regard and act upon as a petition for review in the nature of declaratory judgment, Pa. R.A.P. 1501, 1503, the Court Administrator of Pennsylvania asserts that a question has been raised as to when vacancies which will occur at the end of the elective terms of office of Chief Justice Michael J. Eagen and Associate Justice Henry X. O'Brien are to be filled, which in turn, depending upon resolution of this issue, brings into issue the appointive power of the Governor.

As our original jurisdiction is being invoked pursuant to Section 761, Judicial Code, 42 Pa.C.S. § 761, in an action or proceedings against Commonwealth officials,*fn1 there must be a governmental determination to support the cause of action asserted, Pa. R.A.P. 102, 1502. We perceive no governmental determination whatsoever either in the form of action or non-action with respect to the vacancy which will occur upon the expiration of the elective term of office of Associate Justice O'Brien on the first Monday of January, 1983. We, therefore, decline to entertain the petition for review insofar as it attempts to invoke our original jurisdiction as to the election of his successor. However, we perceive a governmental determination to have been made as to the election of a successor to the Chief Justice whose elective term of office expires on the first

[ 42 Pa. Commw. Page 4]

Monday of January, 1981, such determination being that of not certifying the election of his successor as one to be conducted during the municipal election year 1979, which is one of the four alternative solutions proffered by the Court Administrator to the issue raised.*fn2

The facts are relatively simple and undisputed but to juxtapose them within the framework of our present Constitution with their origin being embedded in our Constitution of 1874 is, indeed, an elusive task.

In the year 1959, the Chief Justice was elected to the Supreme Court of Pennsylvania and duly commissioned to serve a twenty-one year term of office expiring the first Monday of January, 1981. Article V, Section 2, Constitution of 1874. At that time and until adoption of the Constitution of 1968, the Judiciary Article did not address the question of whether justices and judges elected by the electors of the State at large were to be elected in general election (even-numbered) years or municipal election (odd-numbered) years. Article VII, Section 3, provided that "[a]ll judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances may require" and this same provision continues today in this article. However, substantial changes were made to Article V, The Judiciary, by the Constitution of 1968. Bearing upon the issues raised are the following provisions found in this Article:

§ 13. Election of justices, judges and justices of the peace; vacancies.

[ 42 Pa. Commw. Page 5]

(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. 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. The person so appointed shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.

§ 15. Tenure of justices, judges and justices of the peace.

(a) The regular term of office of justices and judges shall be ten years. . . .

Recognizing that general election years remain constitutionally mandated as the even-numbered years and municipal election years as the odd-numbered years, the Court Administrator citing the mentioned constitutional provisions poses four possible solutions but has declined to take a position as to which possibility constitutes the proper interpretation of the Constitution of 1968.*fn3 In his petition for review, the possibilities are said to be:

[ 42 Pa. Commw. Page 6]

(1) Election in 1979 with the winner to take office in 1981;

(2) Election in 1980 with the winner to take office in 1981;

(3) Election in 1981 with the Chief Justice to hold over for a year;

(4) Election in 1981 with the Governor's appointee filling the gap in ...


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