*1 (Grand Jury IV) and the reversed notice submission is quashed.4
ROBERTS, C.J., concurs in the result. MEZVINSKY, Petitioner,
Edward M. DAVIS, Secretary R. Pennsyl- William Commonwealth of vania, Anderson, and Richard Commissioner of the Bureau of Elections, Legislation Commissions and Pennsylvania, Respondents.
Supreme of Pennsylvania. Court
Argued April 1983. April Decided Subsequent argument Court, to oral before full a Petition for Permission Supplemen- To File Post-Submission Communication and arguments tal Brief was filed the Commonwealth. intended supplemental to be set forth in the brief issues relate to not reached Therefore, disposition in view of our thus mooted. an order denying request simultaneously opinion. is filed with this *2 Balaban, Gerber, A. Penll- Harrisburg, Karen M. Richard Oreland, J. for yn, Nancy Hopkins, petitioner. Zimmerman, Gen., Mollie Atty. McCurdy, Depu- S.
LeRoy Gen., for Atty. ty respondents. ROBERTS, C.J., NIX, LARSEN, FLAHERTY,
Before McDERMOTT, ZAPPALA, JJ. HUTCHINSON
OPINION FLAHERTY, Justice.
Pursuant to 42 extra- (1981), Pa.C.S.A. assumed ordinary jurisdiction petition brought for review Edward M. Peti- Mezvinsky Commonwealth Court. tioner of the challenges 42 Pa.C.S.A. 3133 as in derogation his as an elector right constitutional to elect the Court.1 Commonwealth 3133 (1981) provides: Pa.C.S.A. §
Whenever two or more Court are (relat- to be elected to section pursuant 3131(c) ing regular terms) selection election, same each shall qualified elector vote no more than: *3 elected, one-half the of to be if judges of number even;
the total to is or number be elected (2) the of smallest number the constituting majority elected, total number of to be if the judges total number to be elected odd. is persons
The the of having votes, number to the highest up total number of shall judges elected, to be elected. This provision has been held to in the require voting primary election in the selection of in the munici- pal Allen, election. Thiemann supra. Although there three vacancies on Commonwealth to be Court filled in the of municipal 1983, election operation of Section 3133 each by political party would be limited to only nominations of two candidates, and both voter, each the primary and munici- elections, pal would be limited to two candi- voting only Thus, Nix, dates. as noted Mr. by Justice dissenting, Thiemann, Section 3133 would preclude two-thirds the of voters from participating in selection of the candidate who will fill one 485 Pa. at vacancy. 448, 402 A.2d at provision previously by The was addressed Allen, 431, (1979). this Court Thiemann v. 6, officers, “All whose
Pa. Const. Art. provides: § Constitution, shall be selection is not provided law.” The elected or as be directed appointed by the Constitution of by Commonwealth Court was created its selecting Art. and the manner of Const. Constitution, Art. is membership prescribed by . . . shall be elected ... 13(a), “[Jjudges by as follows: ” .. . The meaning electors the Commonwealth. all judges, including judges this latter is clear: Court, are to be elected the electors by the Commonwealth electors are precluded by who are to be served. Where for candidates to fill 3133 from operation Section electors, of those seats, right suffrage all the vacant is in 13(a), impermissibly in Pa. granted Const. to vote in a elec judicial constitutional right fringed. in the selection participate tion must embrace the right Thus, prescribed system legislatively all offices. Court and to the Commonwealth election of requiring from participating all of the electors precluding on court vacancy the candidates for each that selection of 13(a). mandate of Section contrary dissent, in his Section As noted Mr. Justice Nix further clear constitutional pref- 3133 could to frustrate the operate over appointment erence for election of fill vacancies. two principally major there are
When consider a slate of candidates offering in this state political parties comprise only *4 for that frequently they election and with the fact that we election, coupled candidates seeking that elections, it is possible in permit group filing judicial be nominated on both the same two candidates will Thus, could be tickets. Republican Democratic and could not be where the third seat faced with a situation a possibility process. filled the election Such through in our constitu-. recognized preference would frustrate the through to be selected judicial tional scheme the election process. n. 4.
Id. 485 Pa.
(Citations
at
n.
found in Art. not be 13(a) may permissibly 3133. To the scheme embodied Section legislative that Thiemann v. Allen conflicts with this extent proposi- tion, it is overruled. hereby expressly to
It has been legislature’s attempt argued in selection of Common prescribe that limited juris wealth Court Court’s justified by and the of a need to balance legislature’s perception diction of each on that court. See representation political party Allen, 1355; Thiemann at 402 A.2d at supra, brief at 23. respondent’s that assumption is the
Implicit reasoning candidate, reflect a elected, particu- once will continue to lar of his political discharge philosophy do not share such a responsibilities. jaundice for one While I view of the in this Commonwealth. judiciary reflective of the various that the bench should be agree I do cultural, ethnic and of our religious groups society, fostered man- realistically by not that this accept goal minorities.... dating representation by political Nix, Id. 4,402 (Mr. at A.2d at 1356 n. 4 Justice 446 n. level It is the function of the dissenting). judiciary every to regard political to decide cases and without impartially are chosen in Furthermore, considerations. although forum, participation party a a further political judge’s 17(a), is forbidden Pa. Const. politics expressly by in political parties which office proscribes judge’s holding 17(b), which proscribes or organizations, implicitly conduct, as violative of the canons of Canon activity jurists 7 of the of Judicial Conduct admonishes Code regula- Thus any legislative abstain from political activity. according party tion of on a court membership political a useless purpose. Any affiliation must involve necessarily on matters before them based jurists decide suggestion is an affront politics dignity party
569 officers to encouragement and Judiciary; any activities is condemned. political actively participate is held to be 42 Pa.C.S.A. Accordingly, § R. of William Pennsylvania. violation of the Constitution of of Davis, Pennsylvania, the Commonwealth Secretary Elections, of the Bureau of Anderson, Richard Commissioner of the Commonwealth and Legislations Commissions all Boards of directed to notify County Pennsylvania entitled to notice that each Elections other party and every office three candidates for the nominate political party may Court in the election primary of the Commonwealth judge of 1983 and elector in the election primary and each candi- of 1983 vote for three election municipal Court. dates for of the Commonwealth judge ZAPPALA, J., concurring opinion. files a in which ROBERTS, C.J., dissenting files a opinion JJ., HUTCHINSON, McDERMOTT, join. Justice,
ZAPPALA, concurring. 3133 is I in the determination that Pa.C.S.A. concur § was constitu- The Commonwealth Court unconstitutional. 5, 4, Pa. as a part mandated in Const. tionally The Pa. Const. Art. the unified judicial system, court, Act create the implementing legislation necessary No. 6, 1970, 1969 P.L. provided January seven method of of the initial gubernatorial appointment representa- in a guaranteeing minority party manner Act, The legislative history tion on the Court. however, basis, void of for continued totally any minority provision pre- The constitutional representation. party Art. 5 judges, the manner of election Const. scribing no the statewide courts. 13(a) among makes distinction clear that to the constitu- according think it is abundantly tion of election of the manner of election of differ in no from manner way Court is to Commonwealth, thus of the other courts the members of a unified system. retaining attempt legislature in Section 3133 to carry *6 minority party representation “guarantee” of the initial appointment over to later elections runs to the contrary constitutional 5, mandates of Art. 1, 4, Sections arid is an infririgement on the independence of the judiciary.
Without the merits of disputing the discussion plurality’s of the the judiciary and the irrelevance of party politics to judicial decision making, find such discussion unnecessary decision of this matter.
ROBERTS, Justice, Chief dissenting.
By arbitrarily
recent
discarding
precedent and substitut-
its
ing
for the
judgment
considered judgment of the Legisla-
ture, the majority “bring[s] adjudications of this tribunal
into the same class as a restricted railroad ticket,
good
this day and this train
Smith v.
only.”
321
Allwright,
U.S.
649, 669,
757, 766,
64 S.Ct.
An enactment of the Legislature
not be
declared
unconstitutional “unless it clearly,
vio-
palpably,
plainly
lates the Constitution.” Tosto v. Pennsylvania Nursing
Home Loan
1, 16,
Agency,
Although of Mr. opinion Justice Flaherty perceives statute challenged “erodes” guarantee of “[t]he participation selection of judgeships,” legislative judg- ment embodied in section 3133 in fact furthers the legiti- mate the elector’s exercise of his fran- goal promoting chise. The not encourages statutory only biparti- san participation but also discourages practice “weighted” vote in order voting, casting single only to enhance a candidate’s success, chances of and thus single advances the likelihood that the candidates chosen will have the backing of a substantial portion electorate.
As 42 Pa.C.S. 3133 is as an exercise of the legitimate Legislature’s authority regulate the electoral to- process as it day was four when the ago, years the statute sustained, was section should again sustained, and the for review denied. petition *7 JJ., HUTCHINSON,
McDERMOTT and join dis- senting opinion. Pennsylvania v.
COMMONWEALTH CHACKO, Appellant. David Supreme Court of Pennsylvania.
Argued March April Decided