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decided: April 27, 1983.


No. 24 E.D. Miscellaneous Docket 1983, Complaint in Quo Warrantor and for Declaratory Relief.


Robert B. Surrick, Media, pro se, Robert P. Cummins, pro-hoc-vice, Chicago, Ill., for plaintiff.

Stephen M. Feldman, Philadelphia, for defendant.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a dissenting opinion in which McDermott, J., joins.

Author: Per Curiam

[ 500 Pa. Page 533]


No merit having been found in plaintiff's objections to the unanimous order of the full Court dated January 26, 1983, the complaint in quo warrantor is dismissed and judgment entered in favor of defendant.

[ 500 Pa. Page 534]

NIX, Justice, dissenting.

Under Article 5 of the Constitution of this Commonwealth, as amended in 1968, the Chief Justice and Justices of this Court were vested with the awesome responsibility of exercising the "supreme judicial power of the Commonwealth." Pa. Const., Art. 5, § 2. The magnitude of this charge necessarily mandates circumspect exercise of that power. Thus, whenever a legitimate question is appropriately raised regarding the propriety of our discharge of this responsibility, it is incumbent upon this Court to assess the complaint, without rancor, with reflective objectivity and to confess error where appropriate. The arrogant misuse of public trust is the precursor of tyranny. To obstinately refuse to admit error and to perpetually seek justification is to deny the fallibility of human nature and to assume a posture that is indefensible. It is for these reasons that I believe it is incumbent upon me to acknowledge error in my previous vote and explain the basis for that conclusion.

At issue is the legality of this Court's order of January 26, 1983 appointing a retired judge to serve as one of the two members representing the Superior Court on the Judicial Inquiry and Review Board (Board). Pa. Const., Art. 5, § 18. The constitutional question raised is whether a judge who has attained the mandatory retirement age and retires in accordance with constitutional mandate can serve as one of the two representatives of the Superior Court on the Board. I am constrained to conclude that a retired judge is not a judge of the Superior Court within the meaning of section 18(a) and therefore is ineligible to serve.*fn1 This conclusion is not altered, in any respect, by the fact that the judge may have been temporarily assigned to the Superior Court by order of this Court pursuant to section 16(c) of Article 5. As

[ 500 Pa. Page 535]

    reluctant as I am to reach this result because of my affection and respect for Judge Hoffman, the judge appointed in this instance, I must accept the clear mandate of Article 5.


The fatal flaw in any argument seeking to suggest that section 16(b) of Article 5 supports the instant appointment is the refusal to recognize that the mandatory retirement provision of section 16(b)*fn2 extinguishes the status of judge and creates a vacancy which must be filled by the provisions of section 13 of Article 5. This inescapable fact, which is unequivocally established by the plain meaning of the language of the entire Article, forces the conclusion of the constitutional invalidity of the appointment.*fn3 The supporters

[ 500 Pa. Page 536]

    of the appointment can only justify their interpretation of section 16(c) by refusing to read that paragraph in context with the other provisions of the section, particularly 16(b), and by ignoring the obvious scheme of the entire Article. Such an interpretation requires the total disregard of the well-established tenets employed to determine constitutional mandate and frustrates the will of the electorate of this Commonwealth who adopted this Article.*fn4


To sustain the position of the supporters of the appointment we are literally called upon to totally emasculate mandatory judicial retirement. The singular thesis of the constitutional arguments attempting to sustain the appointment's validity requires the unjustified assumption that section 16(c) in some way mysteriously resuscitates and brings new life into the status of a retired judge. Although they begrudgingly concede, as they must, some diminution in the status of the retired judge,*fn5 they ignore the clear constitutional scheme to extinguish the status and create a vacancy when the retirement occurs. See Barbieri v. Shapp, 476 Pa. 513, 523, ...

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