No. 4 E.D. Misc. Docket 1982, Original Proceeding, by Assumption of Plenary Jurisdiction, of Complaint for Declaratory Judgment and Mandamus from the Commonwealth Court of Pennsylvania at No. 43 C.D. 1982.
David F. Binder, Stephen M. Feldman, Philadelphia, for petitioner.
Mary Ellen Krober, Harrisburg, for respondent.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., files a dissenting opinion.
Petitioner James R. Cavanaugh seeks a declaration and direction to respondent Secretary of the Commonwealth that the successor to the seat on the Supreme Court of Pennsylvania presently held by Chief Justice Henry X. O'Brien, whose elected term of office expires on January 3, 1983, is to
be chosen in November of 1982 at the general election immediately preceding the expiration of the term.*fn1 Respondent has refused to certify the seat for election in 1982, on the basis of his belief that an election for the seat may not be held until the municipal election of 1983. For the reasons that follow, we conclude that the seat occupied by Chief Justice O'Brien is to be filled at the general election of November 1982. Thus we grant the requested relief.
The dispute between the parties has arisen because of the seeming inconsistency of two constitutional provisions, both of which apply to the election of justices of the Supreme Court. Article VII, § 3, of the Pennsylvania Constitution, adopted in 1874, provides:
"All judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances may require. * * *"
Article V, § 13(a), of the Pennsylvania Constitution, adopted in 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."
Respondent argues that, because Article V, the Judiciary Article, was adopted more recently than Article VII, the Election Article, the Judiciary Article's provision for a municipal election should control, superseding the provision of the Election Article which permits "either a general or municipal election, as circumstances may require." Thus, respondent would have the seat filled from January 1983 to January 1984 by gubernatorial appointment and Senate confirmation, if it is to be filled at all.
Respondent's argument disregards established principles of constitutional construction. Because the language of the two constitutional provisions at issue relates to the same subject matter, the election of judges, the two provisions must be construed together. See Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 577 (1976); Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976); Weiss v. Zeigler, 327 Pa. 100, 104, 193 A. 642, 644 (1937). See also Statutory Construction Act of 1972, 1 Pa.C.S. § 1932. Moreover, because the Constitution is an integrated whole, effect must be given to all of its provisions whenever possible. See Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962). See also Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a).
When Article VII, § 3, and Article V, § 13, are read in light of these principles, it is clear that the Constitution treats differently two classes of judges, those judges who are chosen by electors of the State at large and those judges who are elected locally. Locally elected judges are to be chosen at municipal elections, which are defined in Article VII, § 3, as elections held in odd-numbered years. No exception to this rule is provided. By contrast, although judges elected state-wide ordinarily are to be chosen at municipal elections, an explicit constitutional exception is provided for election at a general election "as circumstances may require."
Where, as here, the term for a judicial seat filled by the electors of the State at large is scheduled to expire in an odd-numbered year, "circumstances . . . require" that the succeeding justice be elected at a general election, the election that immediately precedes the expiration of the term. This conclusion is compelled by the constitutional preference for election over appointment of judges, a preference that is demonstrated and implemented by Article VII, § 3, and Article V, § 13.*fn2 As this Court has unanimously stated,
"whenever possible, judicial officers shall be elected by a complete electoral process. The appointive process of section 13(b) [of Article V of the Pennsylvania Constitution] was intended to fill a judicial vacancy only until the office could again be filled by a popularly elected officer."
Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 576 (1976). Accord, Barbieri v. Shapp, 476 Pa. 513, 520, 383 A.2d 218, 222 (1978) (Barbieri II) ("appointment procedure of section 13(b) is a stopgap to fill seats that unexpectedly fall vacant"); Leedom v. Thomas, 473 Pa. 193, 195, 199, 373 A.2d 1329, 1330, 1332 (1977) ("section 13(b) . . . 'was not intended to frustrate the electoral process'"). This constitutionally mandated preference for election would be defeated if a vacancy occurring at the end of a fixed term in a state-wide judicial ...