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DENNIS E. THIEMANN v. ETHEL D. ALLEN (05/31/79)

decided: May 31, 1979.

DENNIS E. THIEMANN, PETITIONER,
v.
ETHEL D. ALLEN, D. O., SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, AND LOUIS C. METE, COMMISSIONER OF THE BUREAU OF ELECTIONS, COMMISSIONS AND LEGISLATIONS FOR THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS, REPUBLICAN STATE COMMITTEE OF PENNSYLVANIA, AMICUS CURIAE. DAVID W. CRAIG, JUDGE OF THE COMMONWEALTH COURT OF PENNSYLVANIA, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, ETHEL D. ALLEN, D. O., SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, AND LOUIS C. METE, COMMISSIONER OF THE BUREAU OF ELECTIONS, COMMISSIONS AND LEGISLATIONS OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT, REPUBLICAN STATE COMMITTEE OF PENNSYLVANIA, AMICUS CURIAE



COUNSEL

Thomas R. Balaban, Harrisburg, for Thiemann.

Gaylen J. Byker, Philadelphia, for amicus curiae.

Burton D. Morris, Harrisburg, for Craig.

Edward G. Biester, Jr., Atty. Gen., Robert E. Kelly, Norman J. Watkins, Deputy Attys. Gen., for respondents.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., dissents and would hold that 42 Pa. C.s.a. § 3133 (1978) is unconstitutional. Larsen, J., dissents. Nix, J., filed a dissenting opinion in which Larsen, J., joins. Larsen, J., filed a dissenting opinion.

Author: Eagen

[ 485 Pa. Page 433]

ORDER

AND NOW, TO WIT, THIS 3rd day of April, 1979, 42 Pa. C.S.A. § 3133 (1978) is ruled constitutional. The Secretary of the Commonwealth of Pennsylvania and the Commissioner of the Bureau of Elections, Commissions and Legislations of the Commonwealth are directed to notify the County Boards of Election throughout the Commonwealth and every other party entitled to notice that, in the primary election of 1979, each political party may nominate two candidates for the office of judge of the Commonwealth Court and that, in the primary election of 1979 and in the municipal election of 1979, each elector may vote for two persons or candidates for the offices to be filled.

Leave is granted to any person who filed nomination papers for the office of judge of the Commonwealth Court to withdraw said papers by 5:00 p. m. on April 10, 1979, and the Secretary of the Commonwealth is directed to accept any such withdrawals within the stated period.

Opinions to follow.

Opinion OF THE COURT

EAGEN, Chief Justice.

Pursuant to 42 Pa. C.S.A. § 726 (1978), we assumed extraordinary jurisdiction of the above captioned petitions for review filed in the Commonwealth Court. Oral argument was presented by petitioners, respondents and, by leave of Court, Amicus Curiae. The substantive issues presented involve the proper application of 42 Pa. C.S.A. § 3133 (1978)

[ 485 Pa. Page 434]

    to the primary*fn1 and municipal*fn2 elections of 1979 and the constitutionality of that statute.

42 Pa. C.S.A. § 3133 (1978) provides:

"Whenever two or more judges of the Commonwealth Court are to be elected pursuant to 3131(c) (relating to selection of judicial officers for regular terms) at the same election, each qualified elector shall vote for no more than:

(1) one-half of the number of judges to be elected, if the total number to be elected is even; or

(2) the smallest number constituting a majority of the total number of judges to be elected, if the total number to be elected is odd.

"The persons having the highest number of votes, up to the total number of judges to be elected, shall be elected."

The total number of judges to be elected to the Commonwealth Court pursuant to 42 Pa. C.S.A. § 3131(c)(1978) in the 1979 municipal election is three. See Abraham v. Shapp, 484 Pa. 573, 400 A.2d 1249 (1979) and order dated February 8, 1979 in cited case, No. 1 E.D. Misc. Dkt. 1979. Respondent, Secretary of the Commonwealth, following the filing of the cited order and pursuant to 42 Pa. C.S.A. § 3133 (1978), notified the county boards of election that each political party was to nominate two candidates for the three judicial offices of the Commonwealth Court to be filled in the municipal election and that each elector was to vote for two candidates in the municipal election. In response to that notification, petitioner, Dennis E. Thiemann, filed a petition for review challenging the constitutionality of 42 Pa. C.S.A. § 3133 (1978). The Secretary, upon the advice of the Attorney General, then revised her interpretation and notified the

[ 485 Pa. Page 435]

State chairperson of each of the two major political parties in the Commonwealth that her interpretation of 42 Pa. C.S.A. § 3133 (1978) as revised would result in each elector being permitted to vote for three persons in the primary with each political party nominating three candidates. This notification did not alter the Secretary's earlier directive that in the municipal election each elector could vote for no more than two candidates to fill the three offices. The Secretary stands ready to notify the county boards of election of the revised interpretation, but has refrained from doing so pending the outcome of this action. Petitioner, David W. Craig, a judge of the Commonwealth Court who has filed nomination petitions, then filed a petition for review seeking alternative rulings, viz. that each party may nominate three candidates in the primary and each elector may vote for three candidates in the municipal election if the statute is declared unconstitutional or that each party may nominate two candidates and each elector may vote for two candidates in the municipal election if the statute is upheld. Amicus Curiae argues that the statute is constitutional; that each party may nominate two candidates; and, that each elector may vote for two candidates in the municipal election.

At the outset we are required to construe 42 Pa. C.S.A. § 3133 (1978). The clear and unambiguous language thereof mandates an interpretation which allows each elector to vote for two persons in the 1979 primary and each elector to vote for two candidates in the 1979 municipal election.

1 Pa. C.S.A. § 1921(a) (Supp. 1978-79) provides that the "object of interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly," and (b) provides:

"[w]hen the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."

Clearly, 42 Pa. C.S.A. § 3133 (1978) limits an elector to voting for two persons when three ...


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