Order
The Court has unanimously determined that the gubernatorial appointments to judicial vacancies of Justice Barbieri, Judge Rogers, Judge Salus, Judge Stepan, Judge Jerome, Judge Wright, Judge Cody and Judge Gladden were valid.
The Court being equally divided in its determination of the validity of the gubernatorial appointments of Judge Morgan, Judge Mountenay, Judge Pitt, Judge Dowling, Judge Aston and Judge Walsh, the unexpected question presented is what action, if any, is to be taken. The principle is well established in this Commonwealth as well as many other jurisdictions that, when an appellate court is equally divided, the judgment, order or decree of the court below will be affirmed.
See,
5B C.J.S.,
Appeal & Error
§1844(b) (1958). However, in the cases at bar, this Court, by order dated March 11, 1971, with Mr. Justice Roberts dissenting, under its King’s Bench power and under the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, Art. II, §205, 17 P.S. §§211, 205 (1971), assumed plenary jurisdiction without the previous adjudication of any other court. Accordingly,
Mr. Justice Barbieri could not participate in the consideration or decision of these matters as his present position as an Associate Justice of this Court is contested herein.
In
First Congressional Dist. Election,
Opinion by Mr. Justice Jones, Mr. Justice Eagen, and Mr. Justice Pomeroy in Support op per Curiam Order:
As a result of the opinion in opposition to the order, six common pleas judges, who have been performing judicial duties for many months, would be removed from office by reason of a highly technical and restricted reading of the Constitution of our Commonwealth. Such result would ignore both the rationale and wisdom of a prior decision of this Court as well as the
The pivotal issue presented on these appeals is the validity of the gubernatorial appointments of fourteen judges and such validity, in turn, depends on when each vacancy in judicial office occurred in the constitutional sense. By choosing a date suspended in time, those in opposition to the order disserve the judiciary and make the validity of each appointment turn not on the merits of the appointees but on the fortuitous first date of the judicial vacancy. We would hold that the vacancy occurs not only on the first date but continues to occur until the vacancy is filled by gubernatorial appointment. Therefore, we believe all fourteen judges were validly appointed.
In construing the terms of the new Article V, §13 (b), of the Constitution, our starting point should, it seems to us, be the law as it was before the adoption of the new Article by the electorate on April 23, 1968. Prior to 1968, the appointive powers of the Governor were contained exclusively in Article IV, §8, of the Constitution. That Article provided in relevant part: “. . . [The Governor] may, during the recess of the Senate, fill vacancies happening in offices to which he appoints . . . and fill vacancies happening in . . . any . .. elective office he is authorized to fill.. If the vacancy happens during the session of the Senate ... he [the Governor] shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy.” 1
With this the state of the applicable law, the Constitutional Convention of 1967-68 proposed, in accordance with the terms of its call (Act No. 2 of 1967), a new Judiciary Article, and this new article was adopted
During the session of the Senate which commenced on January 5, 1970, and terminated by adjournment on November 17, 1970, six judicial vacancies occurred in courts of common pleas of the Commonwealth, one each in January, February, March and April and two in September. The Governor filled these vacancies in December, when the Senate was not physically nor (as the entire Court agrees) technically in session.
3
As we have seen, under our constitutional law as it existed previous to 1968, these appointments would have been entirely within the Governor’s power. The question, then, is whether the changes effectuated by the Constitutional Convention of 1967-68 deprived the Governor
As reference to the above quoted portions of the relevant sections will show, the new provision substitutes the word “occurs” for the words “happening” and “happens”. (It also substitutes the term “sine die adjournment” for the word “recess”.) As we view them, these are basically editorial changes, not changes in substance, for “occur” and “happen” are universally recognized as synonymous.
4
Moreover, the use of the present tense implies a continuity or timelessness in the event or state of affairs being considered, as distinguished from a single event relating only to a definite moment in time.
5
Had the drafters wished to change the prior law, it would have been easy enough to interpose the word “first” before “occurs”, or to have used a past tense form, such as “shall have occurred”. A reading of the new Article V indicates that the draftsmen were incorporating into it substantially all provisions of the Constitution dealing with the judiciary, in what
Article II, Section 2, of the United States Constitution provides that the President “. . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the Supreme Court and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . . The President shall have Power to fill up
all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session ”
(Emphasis supplied.) In
United States v. Allocco,
Recent history has demonstrated that the Senate may, on occasion, hold up confirmation of judicial appointees. There are twenty-eight one-judge judicial districts in this Commonwealth — eight of which districts include two counties — and the possibility exists that any or all of these counties could be without judicial representation for prolonged periods if the Senate failed to confirm or even to act on the gubernatorial judicial nominations. Instead of recognizing the dire need for more judges, as evidenced by the numerous legislative proposals that have been recently introduced, the opposition view would lop off six judges. In this day and age, when our courts are faced with tremendous backlogs on both the criminal and civil sides of the courts, the prompt and expeditious filling of judicial vacancies is vital to the efficient operation of our judicial system. Those in opposition to the order, by their restricted and narrow interpretation of when a vacancy occurs, would not serve the public need in this respect.
Using a different approach, the Senate’s function is not only to consent but to advise. Adopting the opposition’s position, the Governor could appoint a man while the Senate is in session to fill a vacancy first occurring during the Senate’s adjournment despite any contrary senatorial advice. To forestall any such possibility, the purpose of the Constitution’s time division must be deemed to relate primarily to the availability of the Senate for consultation. When the instant appointments were made, the Senate was not available.
It has been argued that the interpretations we have reached places undue power in the hands of the Executive, which if misused could circumvent the power of
In summary, the continual “vacancy” theory to which we adhere: (1) accords with the prior case law of both this Court and the federal courts; (2) elimi
Opinion by Me. Chief Justice Bell Suppobting in Pabt and Opposing in Pabt the Results Announced in the per Curiam Order :
This Opinion covers all of the above-enumerated appeals. These appeals have been consolidated, but each one was orally argued before this Court with, of course, a separate brief in support of each party. They present a similarity of facts and the same principles of law, and consequently they will be considered together in this Opinion.
The question in these cases arose either by a writ of mandamus or by quo warranto or by petition to this Court to take original and plenary jurisdiction, which we granted. The different status of the parties or the form of relief sought, justified and made appropriate the form of action chosen by each party.
The petitioners, some of whom are taxpayers, raise the very important question of the validity and Constitutionality of fourteen Judicial appointments made by Governor Raymond P. Shafer to fill Judicial vacancies. Eight of these were appointed by Governor Shafer to fill eight Judicial vacancies which occurred "between November 20,1970 and January 5,1971, when the Senate was not in actual session. We shall first consider these eight appointments.
Judge Alexander F. Barbieri, formerly a Judge of the Court of Common Pleas of Philadelphia and subsequently a Judge of the Commonwealth Court of Pennsylvania, was appointed a Justice of the Supreme Court of Pennsylvania by Governor Shafer on
January 4,1971,
and was duly sworn in on that date. This appointment was made
to fill the vacancy which occurred upon the death of
Justice Herbert B. Cohen,
on December 3,
Petitioners contend, inter alia, (1) that the
“vacancy occurs”
on the
date of death or retirement or resignation of the incumbent Judge and does not continue until
We shall consider these contentions in their inverse order.
Constitutionality of Appointments
(a) Vacancies Occurring While the Senate Was Not in Session
The Constitutionality of these appointments to a vacancy in a Judicial office is governed by Article V (the Judiciary Article), Section 13(a) and (b) of the Pennsylvania Constitution of 1968. The Constitution became effective (with a few irrelevant exceptions) on January 1, 1969, and pertinently provides:
“Election of Justices, Judges and Justices of the Peace; Vacancies. **
“Section 13. (a) Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective
“(b) A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. If the vacancy occurs during the session of the Senate, 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. If the vacancy occurs during the sine die adjournment of the Senate such appointment shall not require the advice and consent of the Senate. 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.”
The first question is when did the Judicial vacancy occur — did it occur during a session of the Senate or during a sine die adjournment of the Senate? If the vacancy occurred during a sine die adjournment of the Senate, the Governor’s appointment need not be submitted to the Senate; if the vacancy occurred during a session of the Senate, it would require the advice and consent of two-thirds of the Senate, and the Governor’s appointments to such vacancies would be unconstitutional and invalid.
The Senate of Pennsylvania adjourned on November 19, 1970. The Legislative Journal of the Senate on November 19, 1970 states:
“Mr. Stroup : Mr. President, I move that the Senate do now adjourn to reconvene at the call of the President pro tempore.
“Mr. Kline : Mr. President, I second the motion.
“The motion was agreed to.
“The Senate adjourned * at 5:03 p.m., Eastern Standard Time.”
We therefore hold that the Senate adjourned sine die on November 19,1970, and the fact that the Senate “adjourned to reconvene at the call of the President pro tempore” does not change (as the protestors contend) the nature or finality of the adjournment. It therefore follows that each of the above-mentioned Gubernatorial appointments made to fill Judicial vacancies which occurred between November 20, 1970 and December 1, 1970 were validly and Constitutionally made and needed no Senatorial approval.
The protestors rely upon Article II, Sections 1, 2, 3 and 4, and Article IY, Section 8.
Article II provides:
“Section 1. The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.
“Election of Members; Vacancies.
“Section 2. Members of the General Assembly shall be chosen at the general election every second year. Their term of service shall begin on the first day of December next after their election. Whenever a vacancy shall occur in either House, the presiding officer thereof shall issue a writ of election to fill such vacancy for the remainder of the term.
“Terms of Members
“Section 3. Senators shall be elected for the term of four years and Representatives for the term of two years.
“Sessions
“Section 4. The General Assembly shall be a continuing body during the term for which its Representatives are elected. It shall meet at twelve o’clock noon on the first Tuesday of January each year. . .
We believe Article II is inapplicable because (1) there is a difference between (a) a term of service and (b) a Session of the Legislature, and (2) it has a very different provision for filling a vacancy in the Senate and in the House than is specifically provided for filling a Judicial vacancy in and by the Judiciary Article, Article V, Section 13(b), which is hereinabove quoted at length.
This Court has unanimously decided that the Gubernatorial appointments to Judicial vacancies of Justice
With respect to the other Judicial appointments hereinabove mentioned, the Court is equally divided, as will be more fully hereinafter discussed.
In my judgment, the appointment by the Governor of the following persons to
Judicial vacancies, which occurred while the Senate was undoubtedly in session, were undoubtedly invalid,
because they clearly and unquestionably violated the clear and directly-controlling language of Section 13(b) of our present Constitution. Section 13(b), as above noted and quoted, mandates the Governor to submit his Judicial appointments to the Senate for its approval (advice and consent). Those who were appointed in violation of the clear mandate of the Constitution are: Judge Warren G. Morgan, who was appointed a Judge of the Court of Common Pleas of Dauphin County on December 1, 1970, to fill the
vacancy
caused by the resignation of Judge R. Dixon Herman, on
January 5, 1970;
Judge Robert M. Moentenay, who was appointed a Judge of the Court of Common Pleas of Bucks County on December 1, 1970, to fill the
vacancy
caused by the retirement of Judge Edward G. Biester, on
September 1,1970;
Judge Thomas A. Pitt, Jr., who was appointed a Judge of the Court of Common Pleas of Chester County on December 1, 1970, to fill the
vacancy
caused by the death of Judge Thomas A. Riley on
February 9, 1970;
Judge John C. Dowling, who was appointed a Judge of the Court of Common Pleas of Dauphin County on December 3, 1970, to fill the
vacancy
caused by the resignation of Judge James S. Bowman on
April 15, 1970;
Judge Albert H. Aston, who was appointed a Judge of the Court of Common Pleas of Luzerne County on December 17, 1970, to fill the
vacancy
caused by the
The Judiciary of Pennsylvania and the powers of a Governor and of a Senate with respect thereto are of such tremendous importance that we shall answer and refute at length the positions and contentions taken and made in the Opinion of Justices Jones, Eagen and Pomeroy. The clear language of Section 13 is grossly (although, of course, unintentionally) distorted by their misinterpretation thereof and their unrealistic and totally inapplicable examples which they give. They first attempt to support their interpretation by Article IV, Section 8, of the Constitution, which by its clear and specific language does not apply to Appellate Judges or other Judges, and by the prior Constitution of 1874 and the different language in the Federal Constitution and the practices thereunder.
Section 13(a) and (b) of our present Constitution changes the Constitution of 1874, as the opposing Justices admit, by changing (1) Article IV, Section 8, and (2) making it inapplicable to Judicial appointments. They contend, however, that the very important and very material changes made in and by Section 13 of our present Constitution were merely
“editorial”,
whereas the changes were almost as different as day is from night. They attempt to support their views by a Procrustean stretch of the English language and then attempt to further support their conclusions by unrealistic and totally irrelevant examples. They contend— and this is the most striking difference between our Opinion and theirs — that a vacancy
occurs
when a Judge dies or resigns and (1)
continues
to “occur” until the Governor appoints a person to fill that Judi
The weakness of their position is further evident when they state that if the clear language and meaning of the Constitution is followed (as we do), we would “disserve the Judiciary and make the validity of each appointment turn not on the merits of the appointees but on the fortuitous first date of the Judicial vacancy.” Only the imagination of a Jules Verne could justify such unrealistic reasoning. It is impossible to understand how our interpretation of Section 13, which requires Senate approval of a Judicial appointment in the case of certain vacancies, “works a disservice to the Judiciary” or how their interpretation assures a merit selection of Judicial appointees.
Moreover, their interpretation of Section 13 could be employed, I repeat, to frustrate totally the Constitutional mandate of Senate confirmation. Under their view, a Governor could always circumvent the need for Senate confirmation simply by scheduling his Judicial appointments when the Senate was in recess.
The opposing Justices start, as we have seen, with Article IV, Section 8, of the Constitution of 1874 and then attempt to relate it to the present Constitution of 1968. The present Constitution clearly and specifically provides, in Article IV, Section 8, for the appointment by the Governor to offices other than Judicial offices, and is clearly, obviously and unquestionably inapplicable to Judicial vacancies.
Furthermore, Article IV, Section 8, by its very terms, distinguishes between a
recess
and a
session
of
In determining a Governor’s power to appoint to a
vacancy
in a Judicial office which
occurs during a session
of the Senate, it is a well-settled principle that where words of a Constitution are plain, they should be given their popular or common meaning:
Breslow v. Baldwin Township School
District,
The Constitution of 1968 made, and intentionally and deliberately made, many important changes in many of the provisions of the Constitution of 1874. The opposing Opinion attempts to support their conclusion by an allegedly similar Article in the Constitution of the United States.
In an attempt to bolster their first ignoring and later completely distorting the clear provisions of the Judiciary Article respecting a Governor’s power of appointment to fill a Judicial vacancy during a sine die adjournment of the Senate, they contend that the important changes which the 1968 Constitution makes in
In a further attempt to bolster their Procrustean interpretation, they state that “[r]ecent history has demonstrated that the Senate may, on occasion, hold up confirmation of judicial appointees. . . . [T]he possibility exists that any or all of these [28 one-judge judicial districts in this Commonwealth] could be without judicial representation for prolonged periods if the Senate failed to confirm or even to act on the gubernatorial judicial nominations.” By this boot-strap argument, they close their eyes to the fact which every Judge and every Legislator and nearly every person in Pennsylvania knows — that the Governor of Pennsylvania is equally if not more to blame than the Senate for holding up Judicial appointments, which causes tremendous and often very regrettable delays in the administration of Justice. Many, many examples could be cited to prove this fact, which is a matter of common knowledge, but two recent examples will suffice. In this very case, the Governor of Pennsylvania held up for a period of ten months the appointment of several Judges to fill Judicial vacancies.
Justices Jones, Eagen and Pomeroy compound their errors by relying upon Article II of the Constitution of the United States. This Article is substantially different from Section 13 of the Constitution of Pennsylvania. Article II of the Constitution of the United States provides:
“Of the President; The Executive Power
“Section 2. . . .
“3. The President shall have Power to fill up all vacancies that may happen during the
Recess
of the Senate, by granting Commissions,
which shall expire at the End of their next
Session.” Moreover, the powers
To summarize: We would hold (1) that a vacancy in a Judicial office occurs at the date when the incumbent of a Judicial office actually dies (or resigns, or retires, or is removed, or his term of office ends), and does not continue to “occur” thereafter until the date of the Governor’s appointment of a successor; (2) that the (1970) Senate adjourned sine die on November 19, 1970, at 5:03 p.m., Eastern Standard Time; and (3) that the Governor’s appointments to fill the aforesaid eight Judicial vacancies which occurred after November 19, 1970 and prior to the Senate’s first session on January 5, 1971 did not require the advice and consent of the Senate, and were therefore valid and Constitutional; and (4) that the Judicial appointments which were made by the Governor to positions where a vacancy occurred during a session of the Senate prior to November 19, 1970, without submitting the nominees to the Senate for its advice and consent, were invalid because they violated Section 13(b) of the Constitution of Pennsylvania.
Notes
This is the text in the relevant portions of Article IV, §8, as adopted by the electorate on May 16, 1967. The changes in the text of the 1874 Constitution were editorial only, except that the requirement of consent by two-thirds of the members of the Senate was confined to the Attorney General, the Superintendent of Public Instruction and such other officers as may be specified by law.
The appellants in
Lafean,
as the court there observed, did not contend “that the vacancy in question was one that had not ‘happened’ during the recess of the Senate, though it in fact arose while the Senate was in session. . . .” Though this threshold point was thus not in contention, the opinion makes it clear that a premise of the decision was that a vacancy did, in fact, exist after the Senate had odjourned.
Pritts v. Kuhl,
Our Court followed the
Lafean
rationale in its recent opinion in
Ritenour v. Peirce,
As the opinion in opposition to the order notes, the names of the two appointees to fiU the vacancies which arose in January and February (Warren G. Morgan and Thomas A. Pitt, Jr., respectively) were submitted by the Governor to the Senate while it was in session, but no action was taken. The same persons were then appointed in December to fill the same vacancies.
The Random House Dictionary of the English Language (Unabridged) (1966) thus defines “occur”: “1. To happen; take place; come to pass.” The same dictionary defines “happen” in the same terms, viz., “1. To take place; come to pass; occur.” It also lists “occur” as a synonym of and often interchangeable with “happen”, but as being more formal. To the same effect, see Webster’s New International Dictionary of the English Language, Second Edition, Unabridged; Webster’s New Dictionary of Synonyms (1968); Roget’s International Thesaurus §151.3, p. 81 (1946).
See the discussion of “present tense” in Evans, “A Dictionary of Contemporary American Usage,” 389-90 (1957), where the authors state, inter aMa, “This tense form is used in statements that are essentiaUy timeless. . . .” This usage is accentuated, if anything, in the case of the word “occurs”, which derives from the Latin word “occurrere,” meaning “to run”.
The call of the Constitutional Convention did not include consideration of Article IV, The Executive, wherein the appointive power of the Governor was set forth. It is noted that the Convention did reinstate the requirement that confirmation of judicial appointments be by two-thirds of the members of the Senate, which had been the requirement under Article IV, §8, until 1967.
Judge Rogers’s case will be hereinafter discussed at length in an accompanying Opinion.
With the exception of Judge Sai/us, who was appointed on November 29, 1970, to fill a vacancy which occurred on November 27, 1970.
Italics throughout ours, unless otherwise noted.
The parties recite the following Resolution, which we cannot find in the record, but the difference Is not material: “Resolved