Pennsylvania Advisory Opinions February 24, 1971: AGO 2 (February 24, 1971)

Advisory Opinion Text

Elections—Duration of term of judge appointed to fill vacancy.

1. Judge appointed to fill vacancy in Commonwealth Court cannot hold office for a term longer than the unexpired term of his predecessor, who resigned to assume a position of Associate Justice on the Supreme Court.

2. Secretary of the Commonwealth is instructed to certify to the county board of elections that an election shall be held for this office on November 2, 1971.

Honorable C. DeLores Tucker

Secretary of the Commonwealth

Third Floor, South Wing

Main Capitol Building

Harrisburg, Pennsylvania

Dear Secretary Tucker:

We have your request of January 21, 1971, for our opinion as to whether an election should be held on November 2, 1971, for the seat on the Commonwealth Court now held by Judge Theodore O. Rogers.

Judge Rogers was appointed to the Commonwealth Court on January 4, 1971, to fill the vacancy created by the resignation of Judge Alexander F. Barbieri. Judge Barbieri's term would have expired on the first Monday of January, 1972, had he not resigned. In the normal course, Judge Barbieri would have stood for election on November 2, 1971.

Article V, Section 13 (a) of the Constitution of Pennsylvania provides:

"Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve."

Section 13(a) is a general election provision for judicial offices and provides that such elections shall be conducted at the next municipal election day. Since Judge Barbieri's appointive term under the Commonwealth Court Act of 1970 would have expired on the first Monday of January, 1972, the next municipal election day in this case is November 2. 1971.

Section 13(b) provides the appointing mechanism for the Governor in the case of a vacancy in a judicial office. Construing Section 13(a) and (b) together the appointment to fill the vacancy under Section 13 cannot extend beyond the unexpired portion of Judge Barbieri's original appointive term.

It would be unacceptable and in our opinion illegal to allow Judge Rogers to hold office for a term longer than that of Judge Barbieri without being required to stand for election. See Commonwealth ex rel. King v. King, 85 Pa. 103 (1877), cited with approval in O'Neil v . White, 343 Pa. 96, 22 A.2d 204 (1941).

Accordingly, it is our opinion and you are advised that pursuant to the certification mandate of Section 905 of the Election Code, 25 P. S. § 2865, you should certify to the County Boards of Election that an election shall be held for this office on November 2, 1971.

Sincerely,

J. Shane Creamer, Attorney General.

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Notes:

Rev'd—see Rodgers v. Tucker , 443 Pa., 509, 279 A.2d 9 (1971).

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