Barbieri v. THORNBURGH

Dissenting Opinion by

Judge Crumlish, Jr. :

Believing that this dissent disposes of the issues in both the Barbieri and Thiemann petitions, I consider this opinion to control and incorporate both petitions by reference herein.

I view the narrow issue in this case to be: Do the Constitution and Election Code1 prescribe the method and timing of the selection of a successor to the incumbent Chief Justice when the vacancy occurs as a result of the expiration of his elected term on the first Monday of January, 1981?

Article V, Section 13(a), clearly mandates the election of a successor to the incumbent Chief Justice ah *11the Municipal Election, 1979, which next precedes the commencement of the elected Justice’s term in January, 1981.

The judiciary may not, in expounding its individual or collective preference for judicial selection, ignore the clear determination of the electorate that in these unique circumstances election is the only appropriate course.2

The majority, in citing Commonwealth ex rel. Barratt v. McAfee, 232 Pa. 36, 81 A. 85 (1911), proposes the notion that a 14-month hiatus3 between a judge’s election and installation is so undesirable that a gubernatorial appointment is preferable.4

However, as I read our Supreme Court’s recent decisions, public policy as expressed by the electorate is indubitable. The existence of a strong public sentiment favoring the election of the judiciary cannot now he rationally disputed. See Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978); Leedom v. Thomas, 473 Pa. *12193, 373 A.2d 1329 (1977); Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976).

Section 13(b) does confer gubernatorial appointment power in certain circumstances but, unhappily for tbe majority position, they are absent in the case before us.

Gubernatorial appointment power cannot supersede the constitutional dictate which provides that in circumstances such, as here, where the vacancy is anticipated : “election is the prescribed method of filling judgeships in Pennsylvania. The appointment procedure of Section 13(b) is a stopgap to fill seats that unexpectedly fall vacant.” Berardocco v. Colden, 469 Pa. at 459, 366 A.2d at 577. (Emphasis added.)

Public policy which heretofore may have militated against a hiatus, if one exists, between election and installation, must show deference to clear constitutional language just as the common law must subordinate itself to written statutes.5

Our Supreme Court has emphasized the constitutional urgency of judicial elections and has declared that they must be held whenever possible. Barbieri v. *13Shapp, supra; Berardocco v. Colden, supra. But, of course, an election is an empty ritual unless a meaningful opportunity is given to candidates to present themselves to the electorate for nomination and election.

Does the Election Code’s calendar of events preceding the nomination of candidates compel such rigid adherence so as to effectively nullify the mandate I see in Section 13(a)?

The Constitution itself provides little guidance in the manner of conducting elections; the Election Code sets forth a step-by-step process to be followed by candidates seeking nomination by political bodies or parties. The deadline for each event is calculated with reference to the fixed primary date. However, in our case, the Code’s deadline for the filing of nomination petitions and papers by participants in the Municipal Primary scheduled for May, 1979, has been reached.

It is pedantic indeed to observe that the Constitution is the supreme law of this Commonwealth and that provisions of the Election Code are valid only if they insure the constitutional right of suffrage.6

The Election Code and the rule that its provisions must be meticulously observed7 are not abrogated by meshing into our pronounced constitutional framework the designation of special ad hoc nomination proced*14ures. This, in my judgment, is a wholly acceptable pragmatic solution to the facial dilemma posed by the majority when it attempts to substitute judicial appointments to expected vacancies for the constitutionally expressed preference for judicial elections.

Accordingly, I would grant the relief requested by Petitioner Thiemann and order that nomination papers and petitions filed within two weeks hence be deemed timely filed, allow for the withdrawal of candidates within two days of filing and allow four days from the date nomination papers and petitions are received and filed for the allowance of objections thereto. I would require the ballot to clearly set forth which candidates sought nomination for the 10-year term of office on the Supreme Court of Pennsylvania to commence on the first Monday of January, 1981. In all other respects, the procedures for nomination papers and petitions would conform to the stated Election Code requirements.

Should, and so it would appear at this writing, the passage of time prohibit the perfection of this timetable, I would order Respondents to issne a writ of election, setting a date for a special limited primary to be conducted solely for the purpose of selecting candidates, one of whom is to be elected to the Supreme Court in the November Municipal Election to take office upon the expiration of the incumbent Chief Justice’s term. The nomination procedures recited herein would conform to the requirements of Article IX of the Election Code, although calculated to the fixed primary date.

I propose a satisfactory alternative by setting the first Tuesday following the second Monday of September as the special primary election date.8 This would *15allow ample time for an effective campaign for nomination and general election. A brief campaign period has the advantages of ameliorating the uniquely frustrating restraints imposed on judicial campaigns, see Melone, Political Realities and Democratic Ideals: Accession and Competition in a State Judicial System, 54 North Dakota L. Rev. 187 (1977); Spaeth, Reflections on the Judicial Campaign, 60 Judicature 10 (1967), and would familiarize the electorate with the candidates’ qualifications. Candidates and the voters would be spared the heavy toll of time, energy, money and patience exacted by protracted campaigns whose antique origins were born in the early vastness of this continent and the then-existing communication and transportation frailties which obviously are now inapplicable.

The paramountcy is that either of these alternatives would allow candidates of political parties and bodies meaningful access to the ballot and thus fullfill the thoughtful constitutional directive of Article V, Section 13(a).

Any practical difficulties encountered in effecting the constitutional scheme for an elected judiciary are insignificant when one considers the potential violence to our constitutional framework:

We have no right to disregard or (unintentionally) erode or distort any provision of the Constitution, especially where, as here, its plain *16and simple language makes its meaning unmistakably clear; indeed, because of tbe times in which we live we have a higher duty than ever before to zealously protect and safeguard the Constitution.

Commonwealth v. Russo, 388 Pa. 462, 471, 131 A.2d 83, 88 (1957).

See also Breslow v. Baldwin Township School District, 408 Pa. 121, 182 A.2d 501 (1962).

Our Supreme Court instructs that elections be conducted whenever possible to fill expected judicial vacancies. Such an election process is available and workable. Gubernatorial appointment power to fill unexpected vacancies is neither ignored nor destroyed by my views.

I conclude that the election of a successor to the incumbent Chief Justice in the Municipal Election of November, 1979, is constitutionally required and appropriate election machinery is available for that purpose.

The Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2601 et seq.

An alternative method of judicial selection by which members of the judiciary would be appointed by the Governor from a list of qualified persons submitted to him by the Judicial Qualifications Commission was rejected by the electorate at the Primary Election in May, 1969.

The term “hiatus” is defined by Webster’s Third New International Dictionary (1966) as a “lapse” or “interruption” and, as used in the majority opinion and my dissent, refers only to the interim between the Judge’s election and installation. Barring the unforeseen, there will not be a vacancy on the Supreme Court bench occasioned by this hiatus.

The majority also cites Barbieri v. Shapp, 470 Pa. 463, 368 A.2d 721 (1977). However, the Barbieri case, supra, although noting policy considerations contrary to a hiatus between election and commencement of office, is inapposite to the case at bar. The issue was whether a Superior Court Judge’s term should be extended so as to avoid a 14-month hiatus between election and commencement of term. An express provision of the Constitution, Article V, Schedule Section 2, authorized the adjustment of judicial terms of Superior Court Judges and dictated the result reached by our Supreme Court.

The majority appears to me to overlook the obvious benefits to be enjoyed by the Justice-elect and the people of this Commonwealth during the gestation period of election and installation. A few occur to me: the retiring Justice-will continue to provide his wisdom, experience and fidelity as he would be anticipating retirement at age 70; he could, with the other members of the Court, counsel his successor and prepare him to accede more fully equipped to discharge his responsibilities than with a purely academic background.

The Justice-elect would then, with greater assurance than one who has been nominated by the Governor and awaits delayed or controversial confirmation by the Senate, satisfactorily close out his private practice so that clients have received optimum professional attention. At the same time, he would have ample time to prepare for the extraordinary leap from bar to bench.

None of these considerations is novel. It is commonplace in “lame duck” situations involving elected government officials at the federal, state and municipal levels.

Our Supreme Court wrote in In Re: Recount of Ballots, 457 Pa. 279, 287, 325 A.2d 303, 308 (1974) :

At the outset it is important to be reminded that the right of suffrage is the most treasured prerogative of citizenship in this nation and this Commonwealth. It is the right that made the American dream distinctive, where men were to be governed not by the state but by themselves. Unreasonable impairment or unnecessary restrictions upon this right cannot be tolerated whether the contest be for the selection of the President of the United States or the district committeeman.

See In Re: Election of Supervisor in Springfield Township, Mercer County, 399 Pa. 37, 159 A.2d 901 (1960).

Thus, the procedure for the special limited primary would involve the following deadlines, inter alia:

*15(1) sending, no later than June 12, 1979, written notification from the Secretary of the Commonwealth to the County Board of Elections designating the anticipated vacancy on the Supreme Court bench for which candidates are to be nominated at the primary;

(2) publication of the primary election proclamation by the County Board of Elections between the 12th and 11th week before September 11,1979;

(3) filing of nomination petitions by July 3,1979; and
(4) filing of nomination papers by July 25,1979.