Pennsylvania Advisory Opinions October 01, 1975: AGO 75-33 (October 01, 1975)

Advisory Opinion Text

Governor's Office—Governor's Power to Full Judicial Vacancies Occurring Within Ten Months of Next Municipal Election.

1. Article V, § 13(b) of the Pennsylvania Constitution gives the Governor the power to fill judicial vacancies occurring within ten months of the next municipal election.

2. The Governor may exercise this power regardless of whether or not the vacated office has been or would have been ascertained to be an office to be filled at the ensuing municipal election, as long as such municipal election has not taken place.

3. The term of a district justice who has died or resigned ends upon the occurrence of the vacancy, and the term of the successor appointed by the Governor extends to the first Monday of January following the next municipal election more than ten months after the vacancy occurs.

4. Where a judicial office is filled for a regular term prior to the commencement or completion of the appointment process established by Article V, § 13(b), there no longer exists a "vacancy" in said office as contemplated by Article V, § 13(b).

5. Where vacancies have occurred in district justice offices within ten months of the November 1975 election and have been filled pursuant to the power conferred by Article V, § 13(b) of the Pennsylvania Constitution, the first municipal election at which candidates may be elected to fill said offices is the November 1977 election.

Honorable Milton J. Shapp

Governor

Harrisburg, Pennsylvania

Dear Governor Shapp:

You have requested our advice regarding the power of the Governor under Article V, § 13(b) of the Pennsylvania Constitution to fill ia vacancy in a judicial office occurring within ten months of the next municipal election, and his power to fill such a vacancy once the election machinery has begun to operate. It is our opinion, and you are so advised, that Article V, § 13(b) gives the Governor the .power to fill the kind of judicial vacancy described in that section, 'and that where the Governor has exercised this power and the Senate has confirmed his nominee, any election to fill that office prior to the next municipal election more than ten months after the vacancy occurs would be a nullity.

Article V, § 13(b) provides:

"A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. The appointment shall be with the advice and consent of two-thirds of the members elected to the Senate, except in the case of justices of the peace which shall be by a majority. The person so appointed shall serve for an initial term ending on the first Monday .of January following the next municipal election more than ten months after the vacancy occurs."

Pursuant to the constitutional amendment adopted by electorate on May 20, 1975, Article IV, § 8 now requires the Governor to nominate a person to fill a vacancy within ninety days of its occurrence, and requires the Senate to act upon the nomination within twenty-five legislative days of its submission. This procedure applies to appointments to fill judicial vacancies 'as well ias other offices specified in Article IV, § 8.

You have presented us with three factual situations, all involving vacancies in the office of justice of the peace which occurred after January 4,1975, i.e., within ten months of the next municipal election. You filled the vacancy in District 17 of Delaware County with the nomination of Richard Colden, Jr., who was confirmed by 'the Senate and subsequently sworn in on June 24, 1975. A second vacancy in District 3 of Crawford County has been filled in a similar fashion by the nomination and subsequent confirmation on June 10, 1975 of Robert J. Leonhart. A third vacancy recently occurred in District 1 of Cumberland County, and on September 9, 1975 you nominated James W. Spotts to fill that vacancy, which nomination has not yet been confirmed by the Senate.

In each instance, the terms of the former district justices were to expire on the first Monday of January, 1976, and the respective county boards of election determined that these were offices to be filled at the November 1975 election and for which candidates were to be nominated at the May 1975 primary. Nomination petitions for these offices were filed in each county, candidates for nomination appeared on the primary ballots, and nominees were selected at the primary. Your inquiry raises the question of whether the operation of this election machinery in any way precludes your exercise of the appointment power conferred by Article V, § 13 (b).

The decision of the Pennsylvania Supreme Court in Rogers v. Tucker, 443 Pa. 509, 279 A. 2d 9 (1971), is dispositive of this issue. In that case, Governor Raymond P. Shafer appointed the Honorable Theodore 0. Rogers to a vacancy on .the Commonwealth Court which occurred on January 4, 1971, just two days less than ten months prior to the next municipal election, at which time the seat would have been up for election. The Supreme Court affirmed the lower .court decision upholding Judge Roger's actions in mandamus and equity to compel the Secretary of the Commonwealth not to certify his office as subject to election in 1971, and to compel the county commissioners to remove the office from the 1971 municipal election ballot.

"Writing for the Court, Chief Justice Jones framed the question in the Rogers case as follows:

"What is the date of election for the vacancy on the Commonwealth Court which was created by and occurred at the resignation of Judge Alexander F. Barbieri?" 443 Pa. at 510, 279 A. 2d at 10.

The Court, observing that this presented a close constitutional question, nevertheless rejected the Commonwealth's argument that an appointment by the Governor to fill a judicial vacancy cannot extend beyond the existing term of a resigned judge without infringing on the right of the people to elect judicial officers. In meeting this argument, the Court distinguished between the terms for judge and for executive officers, and stated:

"We do not deny the right of the people to elect a judge of their choice, we merely fixed, in accordance with the Constitution, the time of election when the people shall exercise their choice." 443 Pa. at 517, 279 A. 2d at 14.

Concluding that Article V, § 13(b) is .clear and unambiguous, the Court held:

"It follows expressly or by necessary implication that the election to fill the judicial vacancy which occurred on the resignation of Judge Barbieri on January 4,1971, must be held at the municipal election in November 1973." 443 Pa. at 518, 279 A. 2d at 14.

Similarly, in Simmons v. Tucker, 444 Pa. 160, 281 A. 2d 902 (1971), contemporaneously decided with Rogers, supra, the Supreme Court affirmed the dismissal of an action in mandamus brought to compel the acceptance of a judicial candidates's properly executed nomination papers. The Court held that since a vacancy occurred within ten months of the 1971 municipal election, no election was required that year to fill that office, which had been already filled by gubernatorial appointment.

The fact 'that candidates have been nominated to run for the district justice offices in each of these counties does not affect our .conclusion that the Governor may fill the vacancies. The Election Code is the mechanism established by the General Assembly to govern the election process, pursuant to Article VII, § § 4 and 6. However, as the Supreme Court recognized in Buckley v. Holmes, supra, specific provisions control over those of general application, and Article V, § 13(b) specifically empowers the Governor to fill judicial vacancies for a constitutionally specified term.

Precisely this view recently received judicial approval in Ernst v. Lehigh County Board of Elections, (No. 43 June Term 1975; September 17, 1975). In that case, in which the Attorney General intervened on behalf of the Commonwealth, plaintiff was appointed as district justice by the Governor to fill a vacancy which had occurred within ten months of the November 1975 municipal election. He was commissioned for an initial term to expire on the first Monday of January 1978, although his office otherwise would have been up for election in November 1975. Plaintiff was not confirmed by the Senate until June 2,1975, and he ran in the primary on both tickets, winning the nomination of both the Republican and Democratic parties, which, for all practical purposes, assured his election in November.

Subsequent to plaintiffs confirmation, the Secretary of the Commonwealth advised the Lehigh County Board of Elections that his name should be removed from the November ballot, since the office was no longer subject to election until November 1977. The local board of elections complied, and plaintiff brought suit to compel the board to place his name on the ballot. In dismissing plaintiffs suit, the Court held that plaintiffs appointment by the Governor filled the prior vacancy and installed plaintiff for a term to end in January 1978. The Court relied specifically upon Article V, § 13(b), Rogers v. Tucker and Simmons v. Tucker in arriving at this result. It is clear, therefore, that even where the Governor's appointee is also the .candidate of both major parties, as in-the case of Crawford County, the occurrence of the primary election does not preclude the exercise of the appointment power conferred by Article V, § 13 (b).

As long as a judicial vacancy exists, the appointment power may be exercised by the Governor and the Senate. However, we are not unmindful of the fundamental tension which exists between the several competing constitutional provisions discussed above. The closer in time that a judicial vacancy occurs to a municipal election, the greater the possibility that the election will actually take place before the completion of the appointive process under Article V, § 13(b). In order to accommodate the electorate's constitutional right of suffrage, it is our opinion that where a municipal election occurs prior to the completion of the appointment process to fill a judicial vacancy, the election process supersedes the appointment process. At that point, the absence of anyone serving in the judicial office would not constitute a "vacancy" within the contemplation of the language of Article V, § 13(b), since a successor to the incumbent would already have been constitutionally designated.

Nowhere in the language of Article V, § 13(b) is appointment by the Governor, with the advice and consent of the Senate, made the sole and exclusive method for filling a vacant judicial office, although that process may certainly supersede the electoral process as we have discussed above. Unlike the primary election, at which candidates are only selected to run in the November election, the municipal election truly represents the exercise of the popular will, and in our view, must be upheld.

This conclusion is consistent with the Supreme Court decisions in Rogers v. Tucker and Simmons v. Tucker, supra. It is noteworthy that in both of those cases, the Supreme Court ruled upon factual situations in which judicial vacancies occurred during the recess of the Senate. Unlike those appointment, which were immediately effective as interim appointments by then Governor Shafer, the appointments to the vacancies in question all require Senate confirmation. Such confirmation was obtained for District Justices Colden and Leonhart, thereby filling the judicial vacancies in Delaware and Crawford Counties. As a result, these offices are no longer subject to be filled at the municipal election to be held November 4, 1975.

With respect to the vacancy in Cumberland County, on September 9, 1975 you nominated James W. Spotts and forwarded his nomination to the Senate. Pursuant to the amendment to Article IV, § 8 of the Pennsylvania Constitution adopted by the electorate at the May 1975 primary, the Senate is mandated to act upon this nomination within twenty-five legislative days of its submission. Assuming that the Senate confirms your nomination of James W. Spotts prior to the 1975 municipal election, the office of district justice for District I in Cumberland would also be filled until January 1978 and thus would no longer be subject to election in November 1975.

It is therefore our opinion, .and you are hereby advised, that (the Governor has the power to fill the vacancies in the offices of justice of the peace in Delaware, Crawford and Cumberland Counties. It is further our opinion that in Delaware and Crawford Counties, and in Cumberland County as well if your nominee is confirmed, the first municipal election at which candidates may seek these offices will be held in November 1977, which is the first municipal election more than ten months after these vacancies occurred. We are forwarding a copy of this opinion to the Secretary of the Commonwealth for her information and guidance, and so that she may advise all county boards of election in 'accordance with legal conclusions expressed herein.

Sincerely yours,

MELVIN R. SHUSTER Deputy Attorney General

VINCENT X. YAKOWICZ Solicitor General

ROBERT P. KANE Attorney General

---------

Notes:

Editor's note: This opinion was rejected by the Supreme Court of Pennsylvania in Berardocco v. Colden, ___Pa.___, 366 A. 2d 574 (1976), rehearing denied August 17, 1976.

This question was raised before the Supreme Court in Commonwealth ex rel. Berardocco v. Colden (No. 446; Misc. Docket No. 20), an action in quo warranto brough against your appointee to a vacancy in a district justice of the peace office in Delaware County. After oral argument on September 25, 1975, the Supreme Court issued a per curiam order later on the same day dismissing the relator's action in quo warranto. This decision of the Supreme Court is not inconsistent with the conclusions expressed in this opinion, although the Court did not specifically address the merits of the case in its order. Because the question is a recurring one in light of the numerous judicial vacancies which have recently occurred, and given the urgency for a legal opinion due to the nearness in time of the municipal election, we find it necessary to issue this opinion at the present time.

District Magistrate Frank T. Hazel of Delaware County resigned on March 10, 1975, District Magistrate Wesley Sliten of Crawford County died on April 5, 1975, and District Magistrate Donald Endres of Cumberland County died on August 7, 1975.

In Delaware County, Richard Colden, Jr. is the Democratic candidate on the November ballot. In Crawford County, Robert J. Leonhart received the nomination of both the Democratic and Republican nominations for district justice. In Cumberland County Donald Endres not only was the incumbent district justice, but had also received the nomination of both parties to appear on the November 1975 ballot. As the following analysis will demonstrate, none of these factual circumstances alters the fundamental constitutional questions regarding the exercise of the Governor's appointment power and the length of the appointee's term.

Compare Commonwealth ex rel. King v. King , 85 Pa. 103 (1877).

Supreme Court construction of prior constitutional provisions for filling judicial vacancies is in accord with this position. See Buckley v. Holmes , 259 Pa. 176, 102 A. 497 (1917); Commonwealth v. Maxwell, 27 Pa. 444 1856). In Maxwell, the Court referred to an analogous constitutional provision as: ". . . the whole, the only provision which this amended article makes for filling vacancies—and it is by executive appointment, and not by popular election." 27 Pa. At 457.

The occurrence of a vacancy terminates the judicial term in progress. In Firing v. Kephart, 18 Pa. Commonwealth Ct. 578, 336 A. 2d 470 (1975), a justice of the peace who retired at the mandatory retirement age of 70, but before the completion of his full six-year term, sought to be compensated for the balance of that term. The Court sustained the Commonwealth's preliminary objections, holding that the justice's term "expired on the date when he reached the constitutionally mandated retirement age." 336 A. 2d at 473. See also DiNubile v. Kent , 19 Pa. Commonwealth Ct. 438, 338 A. 2d 722 (1975).

Since a vacancy created by resignation or death is filled in the same way as one created by mandatory retirement, i.e., by operation of the provisions of Article V, § 13(b), the term of a resigned or deceased judicial officer must similarly end. Accordingly, the former incumbent's term is not extended by gubernatorial appointment in the situations described above. Rather, the appointee himself enters upon a wholly new term, constitutionally delimited so that it will end on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.

Appointment by the Governor and confirmation by the Senate suffice to fill a judicial vacancy, and the appointee's "initial term" commences upon confirmation, and not upon taking the prescribed constitutional oath. See Article V, § 3; Commonwealth ex rel. Kellev v. Reiser, 340 Pa. 59, 16 A. 2d 307 (1940). The vacancy in Crawford County has thus been filled by the appointment of Robert Leonhart, notwithstanding that he has yet to be sworn in.

---------