Barbieri v. Shapp

ROBERTS, Justice

(dissenting).

On November 5, 1968, William F. Cercone was elected to a ten year term as judge of the Pennsylvania Superior Court. Judge Cercone took office on January 6, 1969, for a term ending the first Monday of January 1979. Five days before he assumed office, a new Judiciary Article to the Pennsylvania Constitution took effect.1 The new article created a unified judicial system for the first time in Pennsylvania and established a retention procedure for the reelection of incumbent judges.2 It also *478provided for the election of justices, and justices of the peace at municipal elections,3 which are held in odd-numbered years pursuant to Pa.Const. art. VII, § 3. Since Judge Cercone was elected in an even-numbered year to a ten year term, his retention election will also arise naturally in an even-numbered year, creating a potential conflict with the new constitutional provisions for the election of judges in odd-numbered years. Today, this Court must decide whether Judge Cercone stands for election in 1978, immediately preceding the expiration of his ten year term, or whether his ten year term shall be extended by one year, which would permit him to stand for retention in 1979. This Court should not extend Judge Cercone’s constitutionally fixed ten year term to eleven years and his retention election should be held in 1978. Accordingly, if Judge Cercone chooses to stand for retention, he should file a declaration of his candidacy on or before the first Monday of January 1978. I dissent from the majority’s decision to extend Judge Cercone’s term of office.

Prior to the adoption of the new Judiciary Article, judges of the Pennsylvania Superior Court were elected in even-numbered years.4 To facilitate the transition from the old judicial system to the new one, the voters adopted the Schedule to Article V.5 Section 2 of the Schedule provides that the terms of certain Superior Court judges shall be extended one year. The majority holds that Judge Cercone’s term should be extended pursuant to § 2 of the Schedule in order to eliminate any possible conflict with Article V, § 15(b) which provides *479for retention elections in odd-numbered years. Section 2 of the Schedule provides:

“The present terms of all judges of the Superior Court which would otherwise expire on the first Monday of January in an odd-numbered year shall be extended to expire in the even-numbered year next following.” (emphasis added).

The effective date of the new Judiciary Article and the Schedule was January 1, 1969. However, Judge Cercone did not assume office until January 6, 1969. Therefore, his term is not a “present” term within the meaning of § 2 of the Schedule.

The word “present” is defined in the second paragraph of the Schedule as follows:

“. . . where the word ‘present’ appears to speaks from the effective date hereof.”

The majority seizes upon the word “from” within this definition and concludes that “present terms of all judges of the Superior Court” includes terms which commenced after the effective date of the new Judiciary Article. This interpretation departs from the common usage of the word “present” 6 and ignores the context in which the definitio.n of the word “present” is set forth.

The second paragraph of the Schedule to Article V states in full:

“This article and schedule, unless otherwise stated herein, shall become effective on January 1, 1969. In this schedule where the word ‘now’ appears it speaks from the date of adoption of this schedule; where the word ‘present’ appears it speaks from the effective date hereof.”

*480The context in which the word “present” is defined indicates that the framers’ intent was to distinguish the Schedule’s adoption date (April 23, 1969) from its effective date (January 1, 1969), not to alter the usual meaning of the word “present.” Thus, in extending the “present” terms of all judges of the Superior Court, § 2 refers only to those terms actually in existence on January 1, 1969. Since Judge Cercone had not yet assumed office on that date, § 2 of the Schedule does not apply to his term of office.

Section 2 of the Schedule was the sole vehicle provided by the framers for the transition from the former to the present judicial system. Unfortunately, the framers did not foresee the possibility that the term of a future Superior Court judge would later expire in an odd-numbered year. The failure of the Schedule to cover all contingencies which could arise during the transition between judicial systems places the responsibility upon this Court to effect a solution which best comports with the purposes of Article V. In this case, there are three alternatives :

(1) a retention election in 1977 for a term to begin on the first Monday of January 1979;
(2) a retention election in 1978 for a term to begin on the first Monday of January 1979;
(3) extension of Judge Cercone’s term by one year despite the inapplicability of § 2 of the Schedule to art. V, with a retention election in 1979 for a term to begin on the first Monday of January 1980.

The first alternative would require Judge Cercone to run for retention in 1977 for a term to begin approximately fourteen months later in January 1979. I agree with the majority that such a lengthy period between election and assumption of office is undesirable and contravenes the public policy of this Commonwealth.7

*481The third alternative is also unacceptable. Article V, § 15 of the Constitution provides that the term of office for a Superior Court judge shall be ten years. A constitutional provision which establishes a fixed term of office carries an “implied prohibition” against extending the term.8 In Commonwealth ex rel. Barratt v. McAfee, 232 Pa. 36, 81 A. 85 (1911), this Court struck down a statute which extended the terms of common pleas judges who were unable to run for reelection in the years their terms expired because of an intervening constitutional amendment changing the election years for their offices. In the absence of express constitutional authority for extending their terms, this Court ruled that the Legislature could not do so by statute.9 Here, there is no constitutional authority for extending Judge Cercone’s term of office. The implied prohibition against extending a term of office fixed by the Constitution applies equally to this Court. We have no power to extend Judge Cercone’s term of office absent authorization in the Schedule to Article V.

I conclude that the second alternative best resolves the conflicting policies involved in this case. It would not alter the constitutionally established ten year term of office for Superior Court judges. Moreover, it preserves Judge Cercone’s right to stand for retention, and at the same time ensures that his retention shall be determined at the election immediately preceding the expiration of his term of office.

*482Holding Judge Cercone’s retention election in 1978 would result in an even-numbered year election.10 However, there must inevitably be some deviation from the constitutional scheme due to the framers’ failure to foresee the present situation. An election in an even-numbered year does less violence to the constitutional framework than extending a constitutionally established term of office or holding an election more than a year before a judge’s term expires. Indeed, Article VII, § 3 of the Constitution explicitly recognizes that circumstances may require that an election be held in an even-numbered year:

“All judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances require.”

Article V’s provisions for elections in odd-numbered years may be fairly read as an exercise of the choice provided by Article VII, § 3, rather than as an implied repeal of that section.11 Article VII, § 3 and Article V, §§ 13(a), 15(b), read together, disclose a constitutional policy which favors but does not compel election of judges in odd-numbered years. When “circumstances require,” an election for judge may be held at a general election, i. e., in an even-numbered year.12 I believe that “circum*483stances require” that Judge Cercone’s retention election be held in an even-numbered year.

For these reasons, I conclude that Judge Cercone should have the option of seeking retention in 1978 for a term to begin in January 1979. Article V, § 15(b) provides that an elected judge “. . . may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over election on or before the first Monday of January of the year preceding the year in which his term of office expires.” Accordingly, 1 would hold that Judge Cercone may file a declaration of his candidacy on or before the first Monday of January 1978.

POMEROY, J., joins in this dissenting opinion.

. Pa.Const. art. V.

. Under the retention system, a judge seeking reelection does not run in a competitive election. His name is placed on the ballot *478without party designation and the only question before the voters is whether he shall be retained in office. See Pa.Const. art. V, § 15(b).

. Id. §§ 13(a), 15(b).

. Compare Act of June 24, 1895, P.L. 212, § 1, 17 P.S. § 113 (1962) with Pa.Const. art. VII, § 2 (1874).

. By its terms, the provisions of the Schedule have the same force and effect as the provisions of Article V.

. Cf. 1 Pa.C.S.A. § 1903(a) (Supp.1976) (“Words and phrases shall be construed according to their common and approved usage. . .”). The Random House Dictionary of the English Language (Unabr. ed. 1967) defines the word “present” as follows: “1. being, existing, or occurring at this time or now. . 2. at this time. . . . ”

. See Commonwealth ex rel. Barratt v. McAfee, 232 Pa. 36, 81 A. 85 (1911).

. Id. at 44, 81 A. at 87.

. The constitutional amendment provided for the election of common pleas judges in odd-numbered years. Previously, judges had been elected in even-number years. A Schedule to the amendment extended the terms of judges whose terms ended in 1911 but not those whose terms ended in odd-numbered years after 1911. Thus, a judge whose term expired in 1913, for example, was unable to seek reelection in 1912. The Legislature passed a statute extending by one year the terms of judges whose terms expired in odd-numbered years. In McAfee, this Court held the statute unconstitutional.

. Article V, § 15(b) provides that retention elections should be held “at the municipal election preceding the expiration of the term of the justice or judge.”

. Cf. Parisi v. Philadelphia Zoning Board of Adjustment, 393 Pa. 458, 463, 143 A.2d 360, 363 (1958) (“[An implied repeal] can arise only where the language used in the later statute necessarily discloses an irreconcilable repugnancy between its provisions and those of the earlier statute so inconsistent as not to admit of any fair consonant construction of the two.”); 1 Pa.C.S.A. § 1971 (Supp.1976),

. Commonwealth ex rel. Barratt v. McAfee, supra, does not compel a different result. In McAfee, this Court held (1) that a statute extending the terms of common pleas judges was unconstitutional and (2) it would violate public policy to hold an election in 1911 for a term which would begin fourteen months later in 1913. In effect, the Court ruled that a constitutional amendment had removed the right of certain judges to run for reelection before *483their terms of office expired. Since there could be no election in 1912 for a term ending in 1913, the Court found that a vacancy would occur which would be filled by gubernatorial appointment. However, the Constitution at that time did not include provision for reelection by retention. The Court in McAfee merely removed whatever advantage exists for an incumbent seeking reelection in a competitive election. Today, however, a judge has the right to stand for reelection by retention. The retention system established by the new Judiciary Article supplies a reason to permit an election in an even-numbered year which was not present at the time McAfee was decided.