54 Pa. Commw. 462 | Pa. Commw. Ct. | 1980
Memorándum and Order by
Todd Alan East, William John Ertel, Jeannette Louise Franco and Peter Mike Laspopoulos, hereinafter called objectors, have filed a petition to set aside the Nomination Petitions of Michael A. O’Pake as candidate for the Democratic Nomination for Attorney General of Pennsylvania, and as that party’s candidate for Senator in the General Assembly from the 11th District representing part of Berks County. No question is raised as to the standing of any of the objectors and at our hearing evidence was adduced affirmatively showing Mr. Laspopoulos to have standing.
Senator O’Pake has indeed filed Nomination Petitions to have his name printed on the ballots and ballot labels assigned to the Democratic Party at the Primary Election of April 22,1980 as a candidate for the office of Attorney General of Pennsylvania and also for the office of Senator from the 11th District. Article II, Section 6 of the Pennsylvania Constitution provides that no person holding any office in the Commonwealth to which a salary is attached shall be a
However, Senator O’Pake has publicly declared that if he is nominated as the Democratic Party candidate for both offices in the Primary and if he is elected to both offices in the General Election to be conducted November 4,1980, he will not qualify for the office of Senator from the 11th District but he will qualify for the office of Attorney General. This course will create a vacancy in the office of Senator for the 11th District, which would be filled by a Special Election to be conducted in the 11th District. The candidate of the Democratic Party in such election would be chosen by the Democratic State Executive Committee.
Although in their petition to set aside Senator O’ Pake’s Nomination Petitions the objectors ask that we set aside both petitions, their counsel at our oral argument suggested that if they should prevail an appropriate remedy would be to afford Senator O’Pake 72 hours in which to decide for which of the two offices he desired to remain the candidate of the Democratic Party. We are not put to a choice of remedies because we have concluded that there is no impediment in Pennsylvania law to a person’s candidacy for nomination to two incompatible offices.
Section 910(d) of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §2870(d), requires each candidate to file with his Nomination Petition his affidavit stating “that he is eligible for such office.” The objectors do not have recourse to the Constitution. Their case is founded on Section 910(d). They say it is impossible for a candidate truthfully to take oath on each of two nominations for two incompatible offices that he is eligible for the
The New York case on which the objectors rely, Burns v. Wiltse, supra, involved the candidacy of Wiltse for the office of District Attorney of Jefferson County, New York, and his intention to run for judge of the same county, formed after the incumbent judge’s death when the petition for District Attorney could not be withdrawn. The Court of Appeals, it is true, held that such dual nominations would be contrary to the general spirit and intent of the New York election law and that they would, in the court’s judgment, cause public expense for a useless purpose. The holding, however, seems finally to be based upon a provision of the New York Constitution guaranteeing the right of every citizen to vote “for all officers that now are or hereafter may be elective by the people. ’ ’ The court stated its belief that the people intended that “officers ... ‘elective by the people’ were those who at the time of election could, if elected, take and hold the office.” The court said the electors would be disenfranchised contrary to the Constitution whenever they vote for a candidate who may not legally qualify, if elected, to take and hold both offices to which he had been nominated. We know of no provision of the Pennsylvania Constitution similar to that of the New York Constitution referred to. Article I, Section 5 of the Pennsylvania Constitution guarantees the free exercise of the right of suffrage, clearly not affected here.
Other cases from other jurisdictions in support of the objectors’ position are not helpful because in each a provision of state law specifically prohibited nomination for dual or multiple offices.
Finally, public policy arguments can be made on both sides of the issue. It is true that dual candidacies may cause some public expense and some inconvenience to the electorate; we doubt that they confuse or mislead the electorate; and they certainly don’t interfere with the free exercise of the right of suffrage. The prohibition of dual candidacies, on the other hand, would discourage persons who by faithful public service have earned the confidence and support of a smaller constituency from seeking to serve in a larger capacity.
Counsel for both parties have provided us with good briefs and arguments.
Order
And Now, this 6th day of March 1980, the objectors’ Petition to Set Aside the Nomination Petitions of Michael A. O’Pake is set aside and the Secretary of the Commonwealth is directed to include the name of Michael A. O’Pake on the ballots and ballot labels of the Democratic Party as a candidate for the office of Attorney General of Pennsylvania and as a candidate for Senator in the General Assembly from the 11th District representing part of Berks County.