Barbieri v. Shapp
Barbieri v. Shapp
Opinion of the Court
OPINION
This is a Petition for Review of a governmental determination filed pursuant to the new Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1501 et seq. At issue is the possible extension, for one year, of the judicial term of office of William F. Cercone, Judge of the Superior Court of Pennsylvania. Our resolution of this question will determine the time in which Judge Cercone may file his declaration of candidacy for retention pursuant to Article V, Section 15(b), of the Pennsylvania Constitution and set the date on which he must run, if he should choose to do so, for retention election.
We must decide whether Section 2 of the Schedule to Article V applies to petitioner, Judge Cercone. Judge Cercone believes that it does so apply and wrote to petitioner, Judge Alexander F. Barbieri, Court Administrator of Pennsylvania, on June 9, 1976, asking Judge Barbieri to obtain for him from respondents, Milton J.
When the framers of the revised Article V met in convention they intended that the Schedule to that Article would serve as a bridge between the old and new judicial systems:
“The Convention is empowered to include in its recommendations those provisions which it deems essential to provide against difficulty in moving from one system to another. The transfer from a prevailing judicial order into a new one is quite likely to involve grave problems of compensation, election, tenure, jurisdiction, the transfer of powers etc., and unless provision is made in advance for the elimination of such*467 problems, confusion, uncertainty and inconvenience may result.
The traditional means for disposing of problems of this nature is a provision or series of provisions called the ‘Schedule’ which makes all necessary adjustments in the movement from one condition to another . ” The Pennsylvania Constitutional Convention 1967-68, Reference Manual No. 5, p. 7 (emphasis supplied).
The Schedule, as adopted, was expressly given “the same force and effect” as the provisions of Article V (see Pa. Const, art. 5, Schedule), and it included a section which authorizes the adjustment of judicial terms of Superior Court judges:
“The present terms of all judges of the Superior Court which would otherwise expire on the first Monday of January in an odd-numbered year shall be extended to expire in the even-numbered year next following.” Pa.Const. art. 5, Schedule, § 2 (emphasis supplied)
Because the effective date of the article and schedule was January 1, 1969,
The word “present” is defined by the Schedule: “where the word ‘present’ appears it speaks from the effective date hereof.” Pa.Const. art. 5, Schedule (emphasis supplied). Webster’s Third New International Dictionary gives as the first meaning of the word “from,” “to indicate a starting point.” Thus, when the word “present” is used in the Schedule, it speaks from January 1, 1969, continuing thereafter so long as the Schedule remains in effect. As it is used in Section 2, the word “present” is not confined to terms of Superior Court judges which existed or were in effect on the single day
We believe our construction of the Schedule provisions' is the only fair and reasonable one. It comports with the clear intent of the framers to eliminate the chaos and confusion which would otherwise result in the transition from the old judicial system to a new system requiring all judges to be elected at municipal elections held in odd-numbered years. It would contravene Article V, § 13(a), and Article VII, § 3, of the Pennsylvania Constitution to conduct the retention election in the even-numbered year of 1978.
In Count II of their petition, petitioners request relief in the nature of declaratory judgment. Under the circumstances, such relief is appropriate and will be granted. Petitioner Cercone asserts, herein, a legal right in which he has a concrete interest and which is challenged by respondents, who have felt constrained to deny his request for an extension pending final determination of the controversy in the courts. In addition, the declaration sought will effectively terminate the controversy. See Liberty Mutual Insurance Co. v. S. G. S. Co., 456 Pa. 94, 318 A.2d 906 (1974); Vanderslice Estate, 14 Pa.D. & C.2d 446 (C. P. Columbia County 1957); Act of June 18, 1923, P.L. 840, § 1 et seq., as amended, 12 P.S. § 831 et seq. We therefore, declare that the term of Judge Cercone as a Judge of the Superior Court of Pennsylvania extends, pursuant to Section 2 of the Schedule to Article V of the Pennsylvania Constitution, until the first Monday of January 1980, and that Judge Cercone should not, and need not, run for retention election as a Judge of the Superior Court of Pennsylvania, under Article V, Section 15(b), of the Pennsylvania Constitution, until the municipal election to be held in 1979.
Count II of the Petition for Review is granted.
. Article IV, Section 19, provides in pertinent part:
“All commissions shall be in the name and by authority of the Commonwealth of Pennsylvania, and be sealed with the State seal and signed by the Governor.”
. The Secretary of the Commonwealth has the power and duty, under the law, to “prepare and issue, with the approval of the Governor,” commissions to elected officers of the Commonwealth of Pennsylvania. Act of April 9, 1929, P.L. 177, art. VIII, § 809, 71 P.S. § 279.
. Act of July 31, 1970, P.L. 673, art. IV, § 401(a)(1), 17 P.S. § 211.401(a)(1).
. Act of July 31, 1970, P.L. 673, art. II, § 205, 17 P.S. § 211.205.
. See Pa.Const. art. 5, Schedule.
. Municipal elections are held in odd-numbered years. Pa.Const. art. 7, § 3. The Constitution also provides that:
“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. . . .” Id.
This provision was not amended by the Constitution adopted in 1968. Instead, the new Judiciary Article, Article V, Section 13(a), specifically provides that:
“Justices, judges and justices of the peace shall be elected at the municipal election . . .” (emphasis supplied)
When read and construed together, it is clear that the more recent amendment supersedes and prevails over the older, general provision. Commonwealth ex rel. Specter v. Vignola, 446 Pa. 1, 285 A.2d 869 (1971).
. The Petition for Review filed in this matter combines various causes of action. See Pa.R.A.P. 1502. In Counts I and III of the petition, petitioners request relief in the nature of mandamus and appeal, respectively. Both counts essentially ask for an order directing the respondents to issue a corrected commission to Judge Cercone. Respondents have assured this Court, however, that an amended commission would issue, with or without an order to do so, should we determine that an extension is required. Thus, we do not consider the merits of these counts.
Concurring Opinion
(concurring).
I agree with the conclusion of Mr. Chief Justice JONES, in his Opinion for the Court, that Judge Cercone’s term of office as Judge of the Superior Court has been extended by operation of Section 2 of the Schedule to Article V of the Pennsylvania Constitution,
The pertinent facts of this case may be summarized as follows. On November 5, 1968, William F. Cercone was duly elected by popular vote as Judge of the Superior Court of Pennsylvania. He took his oath of office on January 6, 1969, the first Monday of the year, for a ten year term of office expiring on the first Monday of January 1979. At the time of Judge Cercone’s election to office, Judges of the Superior Court were elected in even-numbered years.
“The present terms of all judges of the Superior Court which would otherwise expire on the first Monday of January in an odd-numbered year shall be extended to expire in the even-numbered year next following.” Pa. Const, art. 5, Schedule, § 2.
The question now before this Court is whether Judge Cercone’s term is subject to extension under this Section. The controversy centers on the interpretation to be accorded the phrase, “the present terms of all judges of the Superior Court.”
According to Mr. Chief Justice JONES, “present terms” are all those in effect or arising after January 1, 1969, the effective date of the Judiciary amendments. Under this rationale, Judge Cercone is therefore included because his “term” commenced when he took his oath of office on January 6, 1969. On the other hand, the dissenting Justice concludes that “present terms” should be restricted to terms that commenced prior to the effective date of the amendments. Judge Cercone therefore would not be included because his oath was administered five days after the amendments became effective. I am unable to accept either of these interpretations.
In my view, it is clear that if we had not embraced within this jurisdiction the concept of the retention elec
Prior to retention a judge who completed the term to which he or she was elected was required to participate in a partisan election if further judicial service was desired. The incumbent had no greater entitlement to the office than any other person interested in seeking it.
Without Section 2 a Superior Court Judge who was elected to office in an even-numbered year would have his term expire on the first Monday of January of the odd-numbered year but could not seek reelection until November of that year.
It is therefore clear that the purpose of Section 2 in the. overall constitutional scheme was to extend by one year the term of office of any Superior Court Judge elected to a term established under the provisions of the prior constitution in order to render the judge’s term of office compatible with the new election provisions established by the amendments. Moreover, it is equally clear that this overall scheme could not be achieved if the Ian
Unlike my brethren, I do not believe that a “sensible and expedient” construction of the language of Section 2 can be ascertained without a clear understanding of its intended effect, particularly in light of this Court’s longstanding adherence to the principle that the constitution is entitled to a construction, as nearly as may be, in accordance with the intent of its makers. Commonwealth ex rel. Attorney General v. Beamish, 309 Pa. 510, 165 A. 615 (1932); Moers v. City of Reading, 21 Pa. 188 (1853). Reference to this principle in the instant case compels the view that the framers, in utilizing the phrase “present terms,” intended to include the terms of any Superior Court Judges which had become fixed under the provisions of the prior constitution. Even though Judge Cercone did not take his oath of office until January 6, 1969, his entitlement to the judgeship in question and his term of office became fixed, pursuant to the 1874 Constitution, on November 5, 1968, the day that he was elected. Accordingly, when the new Judiciary Article and its Schedule took effect on January 1, 1969, his was a present term within the meaning of Section 2 of the Schedule.
In my view, any other construction of this provision would severely distort its intended effect. I therefore cannot accept the view of the dissenting Justice, which
My disagreement with the Opinion of the Court, although I reach the same result, stems from its emphasis upon the science of lexicography rather than a concentration upon the intent of the framers and the understanding of the people in adopting the Article and its Schedule. A literal reading of the language employed in the Court’s opinion would suggest that any term hereinafter commencing subsequent to the effective date of the amendments is subject to modification under Section 2. It is obvious that the framers of the Schedule did not intend for this provision to authorize such sweeping judicial interference with all future terms of the Judges of the Superior Court.
A constitutional provision establishing a fixed term of office, encompasses an implied prohibition against ex
In conclusion, I think it is clear that the Schedule provision in question was intended to be no more than a stop-gap measure. Its purpose was to bring the seven terms of the seven Judges on the Superior Court into alignment with the newly added constitutional requirement that they stand for election in an odd-numbered year and at the same time preserve the right of those judges to seek reelection by retention. Further, I understand that the one-year increase in Judge Cercone’s term sanctioned by our decision today completes this process. Accordingly, Section 2 of the Schedule has served its purpose, and it has no further applicability in the judicial reorganization process.
. The Schedule, by its own terms, has “the same force and effect” as the Constitution. See Pa.Const. art. V, Schedule (1968).
. Compare Act of June 24, 1895, P.L. 212, § 1, 17 P.S. § 113 (1962) with Pa.Const. art. VII, § 2 (1874).
. See Pa.Const. art. V, § 15(b) (1968).
. Id. §§ 13(a), 15(b).
. While many communities ascribed to various concepts of the sitting judge principle, it was not mandated by law and was solely dependent upon the will of the electorate.
. In the instant case although Judge Cercone’s term would expire on the first Monday of January 1979, a municipal election to fill that vacancy would not occur until November of 1979.
. If a jurist is defeated for retention, the vacancy is to be filled by appointment, Article V, § 15(b).
. Under the 1968 Constitutional Amendment, any “justice or judge elected under section thirteen (a) . .’’is entitled to a retention election. See Pa.Const. art. V, § 15(b) (1968).
. While another possibility would be to hold the retention election in the odd-numbered year occurring two years before the odd-numbered year in which the term would expire (i. e., in this instance, the retention election would be held in 1977 for a term to begin in January 1979), I agree with both the Opinion of the Court and the dissent that such an arrangement would be violative of the public policy of this Commonwealth.
. That the Governor might in his discretion appoint the incumbent for the interim period, Pa.Const. art. V, § 13(b) (1968), does not protect the incumbent’s right to seek retention. Under the constitutional scheme, the benefits of retention do not inure to judges who obtain their office by the process of appointment. See Pa.Const. art. V, § 13(c) (1968).
. To further support the view that the retention concept was the critical consideration necessitating Section 2 is the fact that Section 2 is limited to the Superior Court and does not purport to affect the terms of Justices of the Supreme Court. Although Justices of this Court under the former constitutional provisions may have had terms that would expire within an odd-numbered year the problem sought to be remedied by Section 2 was not presented because the Justices were not entitled to seek reelection for that office after the expiration of the 21 year term. Pa.Const. art. V, § 2 (1874).
Additionally, the Commonwealth Court was created under the new Judiciary Article and therefore their terms were made consistent with the new scheme. Pa.Const. art. V, §§ 4, 15(a) (1968). Further, the Common Pleas Judges were formerly required to be elected in odd-numbered years. See Pa.Const. art. VII, § 3 (1874).
. I am also troubled by the language in the opinion of Mr. Chief Justice JONES, ante at 722-723 suggesting that the applicability of Section 2 extends to judges other than those on the Superior Court. While I have no doubt that any such ambiguity in the opinion was unintentional, I wish to clarify that the provision in question, by its express language, affects only the terms of the Judges of the Superior Court. See note 11 supra.
. Article V, Section 15(a) of the 1968 Constitution fixes the term of Judges of the Superior Court at ten years.
Dissenting Opinion
(dissenting).
On November 5, 1968, William F. Cercone was elected to a ten year term as judge of the Pennsylvania Superior Court. Judge Cercone took office on January 6, 1969, for a term ending the first Monday of January 1979. Five days before he assumed office, a new Judiciary Article to the Pennsylvania Constitution took effect.
Prior to the adoption of the new Judiciary Article, judges of the Pennsylvania Superior Court were elected in even-numbered years.
“The present terms of all judges of the Superior Court which would otherwise expire on the first Monday of January in an odd-numbered year shall be extended to expire in the even-numbered year next following.” (emphasis added).
The effective date of the new Judiciary Article and the Schedule was January 1, 1969. However, Judge Cercone did not assume office until January 6, 1969. Therefore, his term is not a “present” term within the meaning of § 2 of the Schedule.
The word “present” is defined in the second paragraph of the Schedule as follows:
“. . . where the word ‘present’ appears to speaks from the effective date hereof.”
The majority seizes upon the word “from” within this definition and concludes that “present terms of all judges of the Superior Court” includes terms which commenced after the effective date of the new Judiciary Article. This interpretation departs from the common usage of the word “present”
The second paragraph of the Schedule to Article V states in full:
“This article and schedule, unless otherwise stated herein, shall become effective on January 1, 1969. In this schedule where the word ‘now’ appears it speaks from the date of adoption of this schedule; where the word ‘present’ appears it speaks from the effective date hereof.”
Section 2 of the Schedule was the sole vehicle provided by the framers for the transition from the former to the present judicial system. Unfortunately, the framers did not foresee the possibility that the term of a future Superior Court judge would later expire in an odd-numbered year. The failure of the Schedule to cover all contingencies which could arise during the transition between judicial systems places the responsibility upon this Court to effect a solution which best comports with the purposes of Article V. In this case, there are three alternatives :
(1) a retention election in 1977 for a term to begin on the first Monday of January 1979;
(2) a retention election in 1978 for a term to begin on the first Monday of January 1979;
(3) extension of Judge Cercone’s term by one year despite the inapplicability of § 2 of the Schedule to art. V, with a retention election in 1979 for a term to begin on the first Monday of January 1980.
The first alternative would require Judge Cercone to run for retention in 1977 for a term to begin approximately fourteen months later in January 1979. I agree with the majority that such a lengthy period between election and assumption of office is undesirable and contravenes the public policy of this Commonwealth.
I conclude that the second alternative best resolves the conflicting policies involved in this case. It would not alter the constitutionally established ten year term of office for Superior Court judges. Moreover, it preserves Judge Cercone’s right to stand for retention, and at the same time ensures that his retention shall be determined at the election immediately preceding the expiration of his term of office.
“All judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances require.”
Article V’s provisions for elections in odd-numbered years may be fairly read as an exercise of the choice provided by Article VII, § 3, rather than as an implied repeal of that section.
For these reasons, I conclude that Judge Cercone should have the option of seeking retention in 1978 for a term to begin in January 1979. Article V, § 15(b) provides that an elected judge “. . . may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over election on or before the first Monday of January of the year preceding the year in which his term of office expires.” Accordingly, 1 would hold that Judge Cercone may file a declaration of his candidacy on or before the first Monday of January 1978.
. Pa.Const. art. V.
. Under the retention system, a judge seeking reelection does not run in a competitive election. His name is placed on the ballot
. Id. §§ 13(a), 15(b).
. Compare Act of June 24, 1895, P.L. 212, § 1, 17 P.S. § 113 (1962) with Pa.Const. art. VII, § 2 (1874).
. By its terms, the provisions of the Schedule have the same force and effect as the provisions of Article V.
. Cf. 1 Pa.C.S.A. § 1903(a) (Supp. 1976) (“Words and phrases shall be construed according to their common and approved usage. . .”). The Random House Dictionary of the English Language (Unabr. ed. 1967) defines the word “present” as follows: “1. being, existing, or occurring at this time or now. . 2. at this time. . . . ”
. See Commonwealth ex rel. Barratt v. McAfee, 232 Pa. 36, 81 A. 85 (1911).
. Id. at 44, 81 A. at 87.
. The constitutional amendment provided for the election of common pleas judges in odd-numbered years. Previously, judges had been elected in even-number years. A Schedule to the amendment extended the terms of judges whose terms ended in 1911 but not those whose terms ended in odd-numbered years after 1911. Thus, a judge whose term expired in 1913, for example, was unable to seek reelection in 1912. The Legislature passed a statute extending by one year the terms of judges whose terms expired in odd-numbered years. In McAfee, this Court held the statute unconstitutional.
. Article V, § 15(b) provides that retention elections should be held “at the municipal election preceding the expiration of the term of the justice or judge.”
. Cf. Parisi v. Philadelphia Zoning Board of Adjustment, 393 Pa. 458, 463, 143 A.2d 360, 363 (1958) (“[An implied repeal] can arise only where the language used in the later statute necessarily discloses an irreconcilable repugnancy between its provisions and those of the earlier statute so inconsistent as not to admit of any fair consonant construction of the two.”); 1 Pa.C.S.A. § 1971 (Supp. 1976),
. Commonwealth ex rel. Barratt v. McAfee, supra, does not compel a different result. In McAfee, this Court held (1) that a statute extending the terms of common pleas judges was unconstitutional and (2) it would violate public policy to hold an election in 1911 for a term which would begin fourteen months later in 1913. In effect, the Court ruled that a constitutional amendment had removed the right of certain judges to run for reelection before
Reference
- Full Case Name
- Alexander F. BARBIERI, Court Administrator of Pennsylvania, and William F. Cercone, Judge of the Superior Court of Pennsylvania, Petitioners, v. Milton J. SHAPP, Governor of the Commonwealth of Pennsylvania, and C. DeLores Tucker, Secretary of the Commonwealth
- Cited By
- 13 cases
- Status
- Published