Otter v. Cortes

Justice SAYLOR,

Concurring.

The majority opinion suggests a bright-line rule that “vacancies should be filled by election only when they occur more than ten months before the general election.” Majority Opinion, at 1288 (emphasis in original). The majority appears to treat this approach as harmonious with the prior decisions of this Court establishing a governing threshold based on whether a vacancy is “anticipated” or “unanticipated.” See Jackson v. Davis, 507 Pa. 626, 631-32, 493 A.2d 687, 689-90 (1985) (discussing the decisions in Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978), and Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976), applying such threshold). In my view, however, a literal reading of the Constitutional text is in substantial tension with the anticipated/unanticipated threshold.

The majority also does not substantively address this Court’s per curiam affir-mance of the decision in Brady v. Cortes, 873 A.2d 795 (Pa.Cmwlth.), aff'd per curiam, 582 Pa. 423, 872 A.2d 170 (2005), which it disapproves. See Majority Opinion, at 1287. I believe this omission yields additional uncertainty.1

This Court’s treatment of Article 5, Section 13(b) exemplifies a recurrent difficulty *1289facing modern jurists — oftentimes, in implementing the Constitution or a statute, precedent of the Court sets a particular direction with which a jurist may not fully agree. In such circumstances, it is necessary to consider the principle of stare deci-sis, requiring respect for existing precedent, before disturbing an established framework of interpretation. See generally Mayhugh v. Coon, 460 Pa. 128, 135, 331 A.2d 452, 456 (1975) (discussing stare deci-sis and applicable exceptions).

Again, in my view, prior decisions of this Court clearly had taken an approach to Article 5, Section 13(b) which, while advancing sound policy, departed from a literal application of the Constitutional text. It does not seem to me that the uncertainties in this area will be resolved until this Court squarely addresses this tension, determining the degree to which stare deci-sis (and/or the application of sound interpretive principles) requires adherence to the existing precedent, or the exceptions allow for departure in favor of a more literal application.

. In similar circumstances, the Court previously has observed that a per curiam affir-mance does not bind the Court in future cases. This is small comfort, however, for litigants who wish to understand the reasons for the decisions governing their rights and *1289obligations, as well as others seeking to protect their own interests with hopes of avoiding litigation. While there may very well be sound reasons for decisions which appear on their face to be ad hoc, the appearance of ad hoc decision-making does not advance the interests of justice.

It is thus worth noting that, in Brady, the retiring judge had publicly announced his intention to resign more than ten months prior to the November election, as reported at least in a regional legal publication. See Brady, 873 A.2d at 796. The judge then acted in conformity with his announcement by tendering his actual resignation to the Governor soon thereafter, albeit this formal submission occurred shortly after the ten-month window had commenced (and the resignation became effective about 40 days later). See id. There was thus a colorable argument presented that the vacancy was sufficiently "anticipated” under the Barbieri/Berardocco line of cases.