Pennsylvania Advisory Opinions August 26, 1913: AGO 66

Advisory Opinion Text

ELECTIONS-JUDGE LUZERNE COUNTY.

The candidates for Judge of the Court of Common Pleas of the 11th District (Luzerne County) are to be nominated by the filing of nomination papers with the Secretary of the Commonwealth, who will certify them to the County Commissioners of Luzerne County for printing on the official ballot.

Office of the Attorney General, Hon. Robert McAfee, Secretary of the Commonwealth, Harrisburg, Pa.

This Department is in receipt of your letter of August 25th, asking, in effect, to be advised whether the names of candidates for. nomination to the office of Judge of the Court of Common Pleas of the 11th Judicial District (Luzerne County) are to be certified by you to the proper county commissioners for printing upon the official nonpartisan primary ballots to be used at the approaching fall primary on September 16th, or whether the names of all candidates filing proper petitions are to be certified by you to the county commissioners prior to the approaching municipal election on November 4, 1913, under the provisions of Section 15 of said non-partisan primary law approved July 24, 1913, to the end that the same may be printed upon the official ballots to be used at said municipal election.

The material facts upon which your inquiry is based are as follows: On July 21, 1913, the Governor approved an act providing for an additional law judge of the several courts of the 11th Judicial District. As this act was approved more than two months before the municipal election of 1913, provision was made for an appointment by the Governor to said office until the first Monday of January, 1914, and for the election at the municipal election which will be held on November 4, 1913, of a person to fill said office for the full term of ten years, beginning on said first Monday in January next succeeding said election.

Your inquiry relates to the manner in which candidates for the full term of ten years are to be nominated under existing legislation. Under the 4th and 5th sections of the non-partisan primary Act of July 24, 1913, the general plan for securing the printing of the names of the candidates for the office of judge, upon the official non-partisan primary ballot is by the filing of a petition with the Secretary of the Commonwealth for the certification of the name of the candidate to the county commissioners of the proper county. This petition in the case of a candidate for the office of judge of a judicial district must be filed with the Secretary of the Commonwealth at least four weeks prior to the primary, or, in the present year, not later than August 19th, and this petition cannot be circulated prior to sixty days before said last day upon which it mar be filed.

In my opinion the approval of the said Act of July 21, 1913, created an original vacancy in the office of additional law judge in the 11th Judicial District. The vacancy thus arising is the only vacancy in a judicial office to be filled at the approaching municipal election in said district. This vacancy arose, happened or occurred on the date of the approval of the act, to wit, July 21, 1913, which date was less than thirty days prior to the last day for filing petitions for the printing of the names of candidates on the official non-partisan primary ballot to be used at the fall primary on September 16th, viz., August 19th. The non-partisan primary ballot law provides for different general classes of vacancies:

1. Where a nomination petition has been filed and the candidate named therein dies before the printing of the non-partisan primary ballot.

2. Where, after the primary, and before the succeeding election, a candidate nominated pursuant to the provisions of the act dies or becomes disentitled to have his name printed on the ballot for the election.

3. "Whenever an office within the provisions of this act is to be filled at a regular or special election because of the prior happening of a vacancy in such office, nominations of candidates for such office for such election shall be made as follows."

The case now under discussion comes, in my opinion, within the third class of vacancies above mentioned. The office in question is to be filled at the regular municipal election to be held on November 4, 1913, because of the approval of said act by the Governor upon July 21, 1913.

We must therefore look into the further provisions of Section 15 to ascertain how the nominations for the office in question are to be made. Said section further provides:

"If such vacancy is to be filled at a regular election, or at a special election to be held at the same time as a regular election, and if such vacancy happened not less than thirty days prior to the last day for filing nomination petitions for the office for the regular primary antecedent to such election, nominations shall be made at the primary preceding such election, in the same manner that candidates for the same office are nominated, under the provisions of this act, when there has been no antecedent vacancy occasioning the election.

In all other cases within the purview of this section, candidates for such office shall be nominated, with the same effect, as though nominated at a primary, by the filing of nomination petitions on behalf of and affidavits by such candidates, in the manner and form and according to the directions herein before provided in sections four and five of this act with respect to getting the name of a candidate for such office printed upon the ballot for the primary, varied in so far as may be necessary to fit the different purpose. Any number of candidates may be so nominated. Such nomination petitions and affidavits shall be filed the same length of time prior to the election as corresponding nomination petitions are required to be filed before a primary, and shall be filed in the same office; and the same proceedings shall be had with respect thereto, with relation to the election, as herein provided with respect to a primary; Provided, however, Said nomination petitions shall not be deemed to be filed too late if filed within ten days after such vacancy happened."

The vacancy in question having happened less than thirty days prior to the last day for filing nomination petitions, nominations cannot be made at the primary in the same manner that candidates are nominated when there has been no antecedent vacancy occassioning the election. This case is, however, a case "within the purview of the section," and candidates must be nominated in accordance with the method provided for in the second paragraph of the above quoted portion of the act. The reason for the distinction is evident. Where the vacancy occurs more than thirty days before the last day for filing petitions, a full opportunity is afforded for the circulation and filing of petitions, but where the vacancy arises less than thirty days before the last day for filing petitions, it was deemed necessary by the Legislature to provide an exceptional method for securing the printing of the names of candidates upon the official ballots for the ensuing November election.

You are accordingly advised that no names should be certified by you for printing upon the official non-partisan primary ballot to be used at the approaching fall primary on September 16, 1913, as the names of candidates for the office in question, and that candidates for this office are to be nominated by the filing of nomination petitions on behalf of and affidavits by each candidates with you, at least four weeks prior to November 4, 1913, which petitions shall not be circulated prior to sixty days before said last day on which they are to be filed, and which are to be varied in so far as may be necessary to fit the purpose. The names of all candidates filing proper petitions with you under the provisions of the third paragraph of Section 15 of said non-partisan ballot law, are to be certified by you to the proper county commissioners for printing upon the official ballot to be used at the municipal election on said 4th day of November, 1913.

Very truly yours,

J. E. B. CUNNINGHAM, First Deputy Attorney General.