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Otter v. Cortés

March 5, 2009

LAWRENCE M. OTTER, INDIVIDUALLY AND AS CANDIDATE FOR BUCKS COUNTY COURT OF COMMON PLEAS JUDGE, PETITIONER
v.
PEDRO A. CORTÉS, SECRETARY OF THE COMMONWEALTH AND HARRY VAN SICKLE, COMMISSIONER OF ELECTIONS, RESPONDENTS



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

ORDER

AND NOW, this 17th day of March, 2009 it is hereby ORDERED as follows:

(1) The opinion in the above matter, filed March 5, 2009, is hereby AMENDED as shown in the highlighted language of the attached opinion.

(2) The opinion in the above matter shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported as amended by this Order.

Argued: February 27, 2009

AMENDED: March 17, 2009

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

On February 27, 2009, this Court entered an order denying a writ of mandamus to Lawrence M. Otter, a candidate for the office of Judge of the Court of Common Pleas of Bucks County. Candidate Otter filed his action to increase the number of judges to be elected in 2009 in Bucks County. This opinion explains the Court's denial of the requested writ of mandamus.

Background

On February 19, 2009, Candidate Otter filed a petition for review in the nature of an action in mandamus against the Secretary of the Commonwealth, Pedro A. Cortés, and the Commissioner of the Bureau of Commissions, Elections and Legislation, Harry A. Van Sickle (collectively, Secretary Cortés).*fn1 Candidate Otter's petition asserts that with the resignation of the Honorable David W. Heckler, which became effective on February 11, 2009, this Court must order Secretary Cortés to have Judge Heckler's seat filled by election in 2009. This would increase the number of judges to be elected in 2009 to the Bucks County Court of Common Pleas from three to four.

On February 20, 2009, in response to Candidate Otter's petition for review, this Court issued an order holding that his petition was governed by the Pennsylvania Election Code*fn2 and Section 764 of the Judicial Code.*fn3 As such, the Court assigned expedited handling to Candidate Otter's petition for review. In accordance with the Court's directive, the parties filed a joint stipulation of facts on February 23, 2009, and they filed briefs on February 25, 2009. On February 26, 2009, Harry W. Fawkes, Sr., Chairman of the Bucks County Republican Committee, petitioned to intervene. On February 27, 2009, a panel of this Court heard argument on the petition to intervene and on the petition for a writ of mandamus. Intervention was granted to Chairman Fawkes at the hearing, and following the hearing, this Court entered the written order that is the subject of this opinion.

The salient facts, as established in the Stipulation, are as follows. On January 29, 2009, then-President Judge Heckler wrote to Governor Edward G. Rendell and resigned his judicial commission, effective February 11, 2009. The Governor acknowledged Judge Heckler's resignation by letter of February 2, 2009, noting that his resignation would become effective at the close of business February 10, 2009. Judge Heckler's term of office is due to expire on December 31, 2017, and Judge Heckler will not reach the mandatory retirement age of 70 in 2009.

On February 17, 2009, in accordance with the requirements of Section 905 of the Election Code,*fn4 the Secretary gave written notice to the County Boards of Elections designating the offices for which candidates will be nominated in the May 19, 2009, Municipal Primary and elected in the November 3, 2009, Municipal Election. The notice identified all vacancies for judicial offices in each Pennsylvania court of record.

With respect to the Bucks County Court of Common Pleas, the Secretary's notice identified three judicial vacancies. Two vacancies were created by the resignations of Judge Kenneth Biehn, effective July 7, 2007, and Judge Mitchell S. Goldberg, effective October 30, 2008. The third vacancy was created by the fact that Judge John J. Rufe will reach the mandatory retirement age for judges in 2009. Secretary Cortés' notice did not identify the fourth vacancy created by Judge Heckler's resignation. Relying upon Article V, §13(b) of the Pennsylvania Constitution, the Secretary determined that a judicial office vacancy must exist ten months before the November election in order for that vacancy to be filled in the same year. This year's Municipal Election will take place on November 3, 2009, and, therefore, a judicial vacancy had to be created no later than January 3, 2009, in order to be filled in the 2009 Municipal Election cycle. Because Judge ...


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