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DETERMINATION PRIORITY COMMISSION AMONG CERTAIN JUDGES SUPERIOR COURT AND COMMONWEALTH COURT (03/24/81)

decided: March 24, 1981.

IN RE DETERMINATION OF PRIORITY OF COMMISSION AMONG CERTAIN JUDGES OF THE SUPERIOR COURT AND COMMONWEALTH COURT


No. 97 W.D.Misc.Dkt. 1980

COUNSEL

Victor R. Delle Donne, Baskin & Sears, Pittsburgh, for Craig, J.

David F. Binder, Narberth, for Cavanaugh, J.

Walter T. McGough, Anthony J. Basinski, Pittsburgh, for Brodsky, J.

Sheldon L. Albert, Philadelphia, for Williams, J.

O'Brien, Chief Justice. Larsen, Justice, dissenting.

Author: O'brien

[ 493 Pa. Page 556]

OPINION OF THE COURT

This action for declaratory judgment was commenced in Commonwealth Court as a Petition for Review. We assumed extraordinary jurisdiction of the matter pursuant to 42 Pa.C.S.A. § 726.

Petitioners, Superior Court Judge James R. Cavanaugh and Commonwealth Court Judge David Craig, seek a judgment declaring that, for the purpose of determining seniority on their respective courts, priority of commission shall be measured from the beginning of service on the court, whether the initial service is by appointment or by election.

Judge Craig and Judge John A. MacPhail were appointed to the Commonwealth Court on June 21, 1978. As a result of the casting of lots between the two appointees, Judge Craig was accorded seniority. Judge Cavanaugh was appointed to the Superior Court on June 28, 1979. Thereafter, all three appointed judges were elected to full terms dating

[ 493 Pa. Page 557]

    from the first Monday of January 1980. Judge John G. Brosky and Judge Richard B. Wickersham were elected to the Superior Court and Judge Robert W. Williams, Jr. was elected to the Commonwealth Court for terms beginning the first Monday of January, 1980. Petitioners seek to establish priority of commission on the Superior Court for Judge Cavanaugh over Judges Brosky and Wickersham and on the Commonwealth Court for Judges Craig and MacPhail over Judge Williams. All five judges were first elected to a term of office on their respective courts at the same time.

The question presented by this case is the proper interpretation of Article 5, § 10(e) of the Pennsylvania Constitution of 1968, which pertains to the casting of lots for priority of commission by two or more justices or judges who assume office at the same time. Petitioners herein assert that § 10(e) authorizes the measurement of judicial seniority from the time a judge or justice assumes office whether by election or appointment.

The primary legal implication which follows from establishing priority of commission or order of seniority among judges is in determining who shall serve as Chief Justice of Pennsylvania and as president judges of those courts composed of seven or less members. Pursuant to Article 5, § 10(d) of the Constitution, the positions of Chief Justice and President Judge are accorded to the justice or judge with the longest continuous service on each of the respective courts.

The Pennsylvania Constitution of 1874, art. V, § 17, provided for the casting of lots to determine seniority as follows:

"Should any two or more judges of the Supreme Court, or any two or more judges of the court of common pleas for the same district, be elected at the same time, they shall, as soon after the election as convenient, cast lots for priority of commission, and certify the result to the Governor, who shall issue their commissions in accordance therewith." (Emphasis supplied.)

[ 493 Pa. Page 558]

The Constitution of 1968, article V, § 10(e), contains a similar provision for determining priority of commission.

"(e) Should any two or more justices or judges of the same court assume office at the same time, they shall cast lots forthwith for priority of commission, and certify the results to the Governor who shall issue their commissions accordingly." (Emphasis supplied.)

Petitioners assert that the change in the language of the two constitutions from "be elected at the same time" to "assume office at the same time" is significant and indicates an intention by the framers of the Constitution of 1968 and the voters who adopted it that judicial seniority be determined on the basis of length of experience on the court. Thus, they contend, seniority must date from the time judges take office, whether by gubernatorial appointment or election, rather than only from the time they are elected, as stated in § 17 of the Constitution of 1874. Therefore, petitioners conclude that a judge who initially assumed office by appointment is not required by § 10(e) of the Constitution of 1968 to cast lots for seniority following his election to office.

Neither the Constitution of 1874 nor the Constitution of 1968 directly addresses the question petitioners raise -- viz., whether appointive judicial service should be considered in determining which member of a court has priority of commission. Nevertheless, this Court has interpreted the Constitution of 1874, article V, § 17, to clearly mean that when two judges are elected to the same court at the same time, the casting of lots is the sole method of determining the order of seniority between them and no prior appointive service in the same court may be considered in determining the priority of their commissions. President Judges Determination Cases, 420 Pa. 243, 216 A.2d 326 (1966).

This Court gave the same interpretation to the Constitution of 1968, article V, § 10(e), when it adopted Rule 705 of the Pennsylvania Rules of Judicial Administration. Rule 705 provides, inter alia, that seniority among judges elected at the same time or appointed at the same time is to be

[ 493 Pa. Page 559]

    determined by a separate casting of lots; that elected judges shall have seniority over appointed judges; and that appointive service shall not be considered in computing seniority among elected judges.*fn1

Petitioners acknowledge that this Court's interpretation of Article V, § 17 of the Constitution of 1874, excluding consideration of appointive service from the computation of judicial seniority, was the correct one. They agree with the conclusion in President Judges Determination Cases, supra, that the phrase, "be elected at the same time", was "absolutely clear and unambiguous" in its intention to compute seniority from the date of election. Thus, petitioners argue that the same clear and unambiguous language would have been retained in the Constitution of 1968 if the intention had been to continue to disregard appointive service. They maintain since the new Constitution employed different words in Article 5, § 10(e), a change in the meaning of this provision was intended, and appointive service was meant to be considered in determining seniority under the Constitution of 1968.

Moreover, petitioners note a significant change from the former constitution in a related provision pertaining to the determination of Chief ...


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