Appeal from the Order of the Commonwealth Court, 83 M.D. 2009, dated 2/27/09.
The opinion of the court was delivered by: Madame Justice Greenspan
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
SUBMITTED: March 17, 2009
On April 9, 2009, we issued a per curiam order affirming the Commonwealth Court's decision to deny Appellant's petition for writ of mandamus. Our reasons follow.
On February 11, 2009, then-President Judge David W. Heckler resigned from the Bucks County Court of Common Pleas.*fn1 Judge Heckler's term of office was not due to expire until December 31, 2017 and he would not have reached the mandatory retirement age of 70 in 2009. The vacancy created by Judge Heckler's early resignation was therefore unanticipated. Pedro A. Cortes, the Secretary of the Commonwealth of Pennsylvania (the "Secretary"), did not identify Judge Heckler's seat as a vacancy that could be filled in the November 3, 2009 municipal election.*fn2 Based on Article 5 § 13(b) of the Pennsylvania Constitution, the Secretary ruled that only vacancies created by January 3, 2009--ten months prior to the November election--could be filled in that election. The Secretary determined that because Judge Heckler's seat was not vacated until February 11, 2009, it must be filled by appointment of the Governor until the 2011 municipal election.
Appellant Lawrence M. Otter, a candidate for the office of Judge of the Bucks County Court of Common Pleas, filed a petition for writ of mandamus in Commonwealth Court arguing that the Secretary should have added Judge Heckler's seat to the ballot for November 3, 2009. Appellant did not dispute the date of the judicial vacancy or that it occurred less than ten months prior to the November election. Instead, Appellant argued that the so called "ten month rule" applied by the Secretary should be treated as a mere presumption that may be rebutted by a litigant who persuades the court that adding vacancies to the ballot less than ten months before the municipal election will not cause prejudice. Appellant asserted that strict application of the ten month rule frustrates the Pennsylvania Constitution's intention that judges in this Commonwealth be elected and not appointed.*fn3
On February 27, 2009, the Commonwealth Court rejected Appellant's arguments and denied the petition for writ of mandamus. On March 5, 2009, the court filed an unpublished memorandum opinion authored by the Honorable Mary Hannah Leavitt ("Memorandum opinion"). Appellant filed a direct appeal to this Court pursuant to 42 Pa.C.S. § 723(a).*fn4
Appellant raises the following issue for our review:
Whether Judge Heckler's early resignation on February 11, 2009 creates a judicial vacancy in the 7th Judicial District which should be filled by an election pursuant to the dictates of Article 5 § 13 (a) of the Pennsylvania Constitution?
Appellant's Brief at 4. In this Court, Appellant repeats his claim that the ten month rule should be viewed as a mere "rebuttable presumption," that he has overcome the presumption in this case and thus the Commonwealth Court should have ruled in his favor and placed Judge Heckler's seat on the ballot for the November 3, 2009 election.
Specifically, Appellant offers a test for determining whether a judicial vacancy should be filled by election or gubernatorial appointment. According to Appellant, the ten month rule should apply unless a petitioner proves the following elements by a preponderance of the evidence:
1. The normal election process for a specific judicial office has already commenced prior to an ...