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MATTER MADAME JUSTICE JUANITA KIDD STOUT. HONORABLE JUANITA KIDD STOUT AND NANCY M. SOBOLEVITCH v. COMMONWEALTH PENNSYLVANIA EX REL. ERNEST D. PREATE (05/18/89)

decided: May 18, 1989.

IN RE MATTER OF MADAME JUSTICE JUANITA KIDD STOUT. THE HONORABLE JUANITA KIDD STOUT AND NANCY M. SOBOLEVITCH, PETITIONERS AT NO. 61,
v.
COMMONWEALTH OF PENNSYLVANIA EX REL. ERNEST D. PREATE, JR., PETITIONER AT NO. 73



COUNSEL

Charles W. Johns and Howard M. Holmes, Philadelphia, for A.O.P.C.

Samuel E. Klein, Frank L. Corrado, Jr., and Harold E. Kohn, Philadelphia, for Justice Stout as Intervenor.

Scott L. Vernick and Louis W. Fryman, Philadelphia, for amicus-Philadelphia Bar Assoc. in Support of Mme. Justice Stout.

Ernest D. Preate, Jr., Atty. Gen., Calvin R. Koons, Sr. Deputy Atty. Gen. and John G. Knorr, III, Chief Deputy Atty. Gen., for the Com.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. McDermott, J., joins the majority opinion and files a concurring opinion. Nix, C.j., files a dissenting opinion in which Flaherty, J., joins.

Author: Papadakos

[ 521 Pa. Page 573]

OPINION OF THE COURT

The matters before us for disposition are the Quo Warrantor and Mandamus action commenced by the Attorney General of Pennsylvania seeking to remove the Honorable Juanita Kidd Stout from the office of Justice of the Supreme Court of Pennsylvania, as well as the non-adversary "Petition for Declaratory Relief" filed by the Court Administrator of Pennsylvania requesting our assumption of original jurisdiction and a declaration of the rights of Madame Justice Stout and advice as to whether to continue Madame Justice Stout on the payroll. Madame Justice Stout has

[ 521 Pa. Page 574]

    been granted leave to intervene in the matter commenced by the Court Administrator since her rights are at issue and she is deemed to be an indispensable party. All matters were consolidated and ordered brought before this Court for argument on April 12, 1989.

In view of the great public importance attached to the issue suggested by Madame Justice Stout, the Court requested and Madame Justice Stout voluntarily agreed, to remove herself from any participation in and consideration of judicial determinations on and after March 7, 1989, and until her status was determined.

The basic issue before us arises from facts not in dispute. On October 19, 1987, former Justice William D. Hutchinson resigned as Justice to accept an appointment as judge on the Third Circuit Court of Appeals. Thus, a vacancy was created which, pursuant to constitutional mandate, was eventually filled on February 8, 1988 by the appointment of the Honorable Juanita Kidd Stout by the Governor of Pennsylvania and confirmed by the Senate. The commission issued was for a term ending on the first Monday of January, 1989. Such a term was established upon the belief that a valid election to fill the vacancy could be held in 1988.

By our decision in Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988), we set aside the election for appellate courts scheduled for 1988 and directed that any vacancy in any of our courts had to be filled in elections held in a municipal rather than a general election year, i.e., 1989. We also directed in footnote 8 of the Sprague opinion, "The Secretary of the Commonwealth is directed to amend the term of office in the commissions of the two appointed jurists consistent with this opinion." p. 193. In compliance with this directive, the Secretary of the Commonwealth reissued a commission to Madame Justice Stout for a term commencing on February 8, 1988 and ending on the first Monday of January, 1990. In Sprague we took the position that the Constitution dictates the exact length of the term of office for which an appointee to fill a vacancy may serve and that the Governor and Senate cannot alter or vary that term of

[ 521 Pa. Page 575]

    office. Thus we recognized that an appointee might die, resign, be removed or suffer such other impediment as reaching the age of retirement which might prevent the appointee from completing the term of office established in Article V, Section 13(b).

On March 6, 1989, Madame Justice Stout reached the age of seventy years and, armed with a corrected commission from the Governor, questioned whether her age was an impediment which would prevent her from completing the full term of office to which she had been appointed. For various reasons with which we shall hereinafter deal, she believes that appointees to the bench are not subject to the mandatory retirement age expressed in the Constitution at Article V, section 16(b), which reads in pertinent part: "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years."

To bring the issue formally before the Court for a speedy resolution, the Court Administrator of Pennsylvania Courts was directed to file a petition with us invoking our original and plenary jurisdiction, asking that we issue declaratory relief with respect to the continued payment of compensation to Madame Justice Stout and to determine her continued right to sit on this Court. This petition was filed on March 14, 1989, and by separate petition, Madame Justice Stout filed her application requesting leave to intervene in the Court Administrator's declaratory judgment action, alleging that since her rights were to be adjudicated, she was an indispensable party.

On March 27, 1989, the Honorable Ernest D. Preate, Jr., the Attorney General of the Commonwealth, instituted a proceeding in quo warrantor and mandamus before the Commonwealth Court, challenging Madame Justice Stout's right to continue to exercise any duties as a Justice of the Supreme Court and asked that a writ of mandamus be issued to the Court Administrator directing the cessation of payments of compensation to Madame Justice Stout as a Justice of the Supreme Court of Pennsylvania. The Court Administrator and Madame Justice Stout petitioned us asking

[ 521 Pa. Page 576]

    that we assume plenary jurisdiction over the Attorney General's quo warrantor and mandamus action, and that we consolidate this action with the Court Administrator's action and dispose of both actions in one proceeding.

On March 31, 1989, we entered our order granting Madame Justice Stout's petition to intervene and we granted the Court Administrator's petition to consolidate her action with the Attorney General's action filed in the Commonwealth Court. Accordingly, we ordered the Commonwealth Court action transferred to our docket and took jurisdiction over both actions and listed the cases for oral argument at our Philadelphia Session on April 12, 1989.

The facts are not in dispute. The Attorney Generaland Madame Justice Stout have each moved for summary judgment in their favor. The parties have filed their briefs on the legal questions raised and a brief in support of Madame Justice Stout by the Philadelphia Bar Association as Amicus Curiae has been accepted. The matters were argued before the Court on April 12, 1989, and are now ripe for disposition.

Since the fundamental question raised by all parties concerns Madame Justice Stout's right to continue in public office we are obliged to test that right via the quo warrantor proceeding instituted by the Attorney General in which the burden of proving the right to office rests with Madame Justice Stout. Carrol Twp. Sch. Bd. Vacancy, 407 Pa. 156, 180 A.2d 16 (1962); Commonwealth ex rel. Kelley v. Keiser, 340 Pa. 59, 16 A.2d 307 (1940).

[ 521 Pa. Page 577]

As Mr. Justice Nix (now Mr. Chief Justice Nix) reiterated for the majority in Spykerman v. Levy, 491 Pa. 470, 421 A.2d 641 (1980), "Historically, Pennsylvania courts have held that the quo warrantor action is the sole and exclusive method to try title or right to public office." The writ is addressed to preventing a continued exercise of authority unlawfully asserted and can be brought to oust a de jure, as well as a de facto, officer from their public positions. Spykerman; State Dental Council and Examination Board v. Plock, 457 Pa. 264, 318 A.2d 910 (1974); Pleasant Page 577} Hills Boro. v. Jefferson Twp., 359 Pa. 509, 59 A.2d 697 (1948).

We have also held that the burden of proof to show good title to office in quo warrantor proceedings where the action has been instituted by the Commonwealth, is upon the respondent. Commonwealth ex rel. Kelley v. Keiser, 340 Pa. 59, 16 A.2d 307 (1940). The burden is not met by producing a commission from the Governor where the challenge is to some personal qualification of the respondent. Kelley v. Keiser.

The Attorney General challenges Madame Justice Stout's right and title to office by invoking the mandatory retirement section of Article V, Section 16(b) of the Constitution. The pertinent language is short and straightforward, without embellishment, expansion or ambiguity, and provides: "Justices, judges and justices of the peace shall be retired upon attaining the age of seventy years." The Attorney General maintains that all members of the judiciary, whether appointed, elected or retained are required by Section 16(b) to be retired upon reaching the age of seventy years and that Madame Justice Stout was required to be retired on March 6, 1989, upon reaching the age of seventy years.

Madame Justice Stout, as Respondent, seeks to avoid the clear impact of the mandatory language of Section 16(b) on the assertion that gubernatorial appointees are exempt from the mandatory retirement provisions of Section 16(b) by virtue of Section 13(a); that she falls within the ambit of the federal Age Discrimination in Employment Act, 29 U.S.C. ยง 621 et seq., a federal act which overrides our constitutional bar by reason of the Supremacy Clause of the United States Constitution; and on equal protection grounds. We will address each claim separately.

Applicability of Mandatory Retirement Provision of Section 16(b) to Appointed Members of the Pennsylvania Judiciary

Madame Justice Stout first asks us to determine whether there are any limits to the mandatory language of

[ 521 Pa. Page 578]

Section 16(b) requiring retirement upon the attaining of age seventy by members of the judiciary. In support of finding such a limitation, Madame Justice Stout notes that she is an appointed justice, appointed to the Court pursuant to Article V, Section 13(b) of the Constitution to fill the vacancy created on the Court when Mr. Justice William D. Hutchinson resigned his commission.

Although Article V, Section 13(b) requires that "the person so appointed shall serve for a term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs . . ." (which in this case would have been January 1, 1990), the Governor appointed Madame Justice Stout to a term ending on the first Monday of January following a general election (January, 1989) and the Senate confirmed same.

We corrected this misconception in Sprague v. Casey, supra, where we held that the election scheduled for 1988 was not in a municipal election year and that an election for the Supreme Court vacancy could not be held until 1989.

Pursuant to our decision in Sprague, we ordered that the term of the office to which Madame Justice Stout had been appointed be extended to the first Monday in January of 1990 to comply with the provisions of Article V, Section 13(b) of the constitution which sets the end of the term as the "first Monday of January following the next municipal election more than ten months after the vacancy occurs." In compliance therewith, a second commission was issued to Madame Justice Stout by the Governor reflecting the correct termination date of the term. Madame Justice Stout argues that because the termination date listed in her commission exceeds her seventieth birthdate, that an inconsistency exists. Must she retire on her seventieth birthday pursuant to Section 16(b) or may she complete the term as set forth in the commission as provided in Section 13(b)? In support of the claim that the provisions of Section 13(b) should take precedence over the mandatory retirement provisions of Section 16(b), Madame Justice Stout advances several arguments.

[ 521 Pa. Page 579]

It is argued that since the constitutional language of Section 13(b) specifically defines the length of the term of office without regard to the mandatory retirement provision, this lack of reference to the mandatory retirement section should prevail over the provisions of Section 16(b).

Were this but true, then a jurist who was elected at age 69 could serve a full ten years to age 79 since Article 5, Section 15(a) provides: "The regular term of office of justices and judges shall be ten years . . . ." without regard to the mandatory retirement provision, and this lack of reference to the mandatory retirement section should prevail over the provisions of Section 16(b). We have laid this argument to rest in our recent decision in Gondelman v. Pennsylvania, 520 Pa. 451, 554 A.2d 896 (1989), wherein we emphatically held constitutional the mandatory retirement provision at age seventy and held that jurists after attaining said age could serve only in a senior judge capacity.

Furthermore, the issue was met head on in Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976), wherein we held that a district justice must retire upon attainment of age seventy, and that his term of office ended at such age so that he was not entitled to salary for the balance of the unexpired term.

Firing was retained as a district justice, with his retention term beginning in January 1970. He reached the mandatory retirement age on September 29, 1973, and while he voluntarily retired, he maintained that he was entitled to his compensation as a district justice ...


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