Robert C. REED, Appellee, v. Grace M. SLOAN, State Treasurer of the Commonwealth of Pennsylvania, and Alexander F. Barbieri, Court Administrator of Pennsylvania. Appeal of Alexander F. BARBIERI.
Supreme Court of Pennsylvania.
Decided Dec. 1, 1977.
381 A.2d 421
Argued Sept. 29, 1977.
Former Chief Justice JONES did not participate in the decision of this case.
NIX, J., concurs in the result.
Gretchen Sohn Reed, Beaver, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.
OPINION OF THE COURT
NIX, Justice.
The issue raised in this appeal is whether an elected common pleas court judge is entitled to any salary and emoluments of his office for the period between the date the term of the office was to commence and the date when he actually took the oath of office, where his ascension to the bench was delayed because of a dispute over his right to hold that office and where during that interim period he continued in the practice of law and received income therefrom. Alternatively, it is contended that in any event there must be a set-off of the income earned from the practice of law during the period that his right to hold the office was being contested.
Robert C. Reed, appellee herein, sought election to the position of Judge of the Court of Common Pleas of the Thirty-Sixth Judicial District in the Municipal Election of November 6, 1973. After that election a dispute arose which prevented the certification of the vote and ultimately came before this Court for resolution. See, In re Recount of Ballots, 457 Pa. 279, 325 A.2d 303 (1974). On October 12, 1974, after the conclusion of the aforementioned litigation and the certification of Judge Reed‘s election to the office of judge, his commission of office was duly issued by the Governor and recorded on October 21, 1974. On the 21st of October, Judge Reed took his oath of office and commenced the performance of his judicial duties.
Thereafter, being unable to resolve the question of his status between the time that his statutory term began (January 7, 1974) and the time that he took the oath of
The pertinent constitutional and statutory provisions require that the terms of office for an elected judge of the Court of Common Pleas shall commence the first Monday of
The theory upon which these decisions are premised is that the right of the holder of the office to receive the compensation annexed to the office is legislative (or constitutional as in this case) and not contractual. Following this reasoning the salary belongs to the officer, de jure regardless of whether he or a de facto officer discharged the responsibilities of the office during the disputed period. Cooke v. Roberts, supra. See also Commonwealth ex rel Shoemaker v. Thomas, 328 Pa. 19, 195 A. 103 (1937); Jones v. Dusman, supra. Extending this reasoning to the question of whether the de jure office holder is entitled to his salary subject to set-off of earnings from other sources this Court concluded:
“The distinction is based on the theory that no contractual relationship exists between the governmental unit and a public official, and that the compensation, being incidental to the office which the official holds, is governed by the right to the office, and cannot be diminished
by the application of the doctrine of mitigation of damages which is based on the existence of a contractual relationship. See: Seltzer v. Reading, supra; Coble v. Metal Township School District, 178 Pa.Super. 301, 116 A.2d 113; Note, 150 A.L.R. 100.”
Vega v. Burgettstown Boro., 394 Pa. 406, 410, 147 A.2d 620, 622 (1958).
Appellant does not question the foregoing authority4 but argues that Judge Reed waived or forfeited his right to judicial compensation because he engaged in the private practice of law during the period in question. We are urged to distinguish the instant facts from the holding of Vega v. Burgettstown Borough, supra, because of the prohibitions of
“(a) Justices and judges shall devote full time to their judicial duties, and shall not engage in the practice of law,
Further, Canon 5 of the Code of Judicial Conduct implements this constitutional prohibition by providing in Section F that a judge should not practice law. However, in both instances the prohibition is applicable to one who is actually serving as a judicial officer. As noted by this Court as early as 1892, the “right ‘to practice as an attorney and counselor at law’ did not cease until he actually assumed the judicial office by taking the prescribed oath.” Kelly v. Herb et al., 147 Pa. 563, 565, 23 A. 889 (1892) (Emphasis added). See also Simmons v. Tucker, 444 Pa. 160, 281 A.2d 902 (1971). Therefore Judge Reed‘s actions in continuing his practice of law during the period between January 7, 1974 and October 21, 1974 were unquestionably proper and not in any way violative of the incompatibility prohibition. A requirement that an attorney must terminate his practice before a final determination of his right to the judicial office has been made would be an arbitrary rule,5 and insensitive to the practical needs of an individual in such a situation.
“It is our view that one does not hold office as a federal judge until the oath of office is administered and that the date of the issuance or acceptance of the federal commission, while relevant in other contexts, . . . is not relevant to a discussion of this Commonwealth‘s constitutional and statutory incompatibility provisions.” Id., 444 Pa. at 164, 281 A.2d at 904.
Nor are we impressed with appellant‘s argument that an appearance of impropriety is created by allowing Judge Reed to receive his judicial salary for the questioned period without a set-off for the funds he received from private practice during that time frame. The impropriety could only arise from the improper performance of his judicial responsibilities because of a competing interest related to his private practice. Where he did not discharge any judicial duties nor was he vested with the authority to perform such duties no such impropriety could occur. In such a situation any suspicion of impropriety would be groundless. We find no basis for concluding that the public trust in the integrity and independence of our judiciary would be in any way fostered by the position urged by appellant.
The fundamental fallacy in appellant‘s argument is the failure to distinguish between the concurrent holding of two incompatible positions and the right to payment of salary for an office where there has been an involuntary deferred assumption of that position. The evil sought to be avoided by the incompatibility provisions is the improper performance of the duties of the office which might be inspired by the holding of an incompatible position. The fact that the person derives income from the incompatible position is only significant in that it might provide the incentive to improperly discharge the responsibilities of the public office. In
The Order of the Commonwealth Court granting appellant‘s motion for summary judgment is affirmed.
ROBERTS, J., files a dissenting opinion joined by PACKEL, J.
POMEROY, J., files a dissenting opinion.
ROBERTS, Justice, dissenting.
The majority orders appellant Alexander Barbieri, Court Administrator, to authorize payment to appellee Robert Reed of more than $31,000 in judicial salary for a period prior to taking his oath of office in which appellee performed no judicial duties because of a lawful election challenge, and during which he maintained a private practice of law. The payment of this unearned salary to appellee is contrary to the Constitution of Pennsylvania and represents in my view impermissible expenditure of public funds. Moreover, the illogical and inequitable result of the majority‘s decision is that appellee, for the period in which he maintained his private practice and performed no judicial duties, will receive substantially greater compensation than did those judges who actively performed their judicial duties and were therefore required to forego any compensation from the private practice of law. I dissent.
I
In November, 1973, H. Beryl Klein, Joseph S. Walko, and appellee were candidates for two seats on the Court of Common Pleas of Beaver County. Of the three, only H. Beryl Klein emerged as a clear winner. On the first count, Klein received 41,753 votes; Walko, 30,569; and appellee, 30,355.
In January, 1974, Klein filled one of the two seats on the bench. The other seat was not filled until October, 1974,
Appellee continued to practice law throughout the period the election was in dispute, earning from his practice a net income of more than $18,000. Nonetheless, appellee commenced an action in mandamus in the Commonwealth Court against Grace Sloan, Treasurer of the Commonwealth, and appellant Alexander Barbieri, Court Administrator of Pennsylvania, seeking the sum of $31,000 as salary for the nine months between January and October, 1974, when he did not perform judicial duties.
The majority, relying on what it terms the “general proposition” that an elected official assuming office after a contested election is entitled to compensation for the time when he did not serve as a judge, affirms the order of the Commonwealth Court. The majority concludes that, in addition to the $18,000 appellee was able to earn in private practice, he is entitled to the $31,000 he would have earned had he taken his oath of office and begun serving on the bench in January, 1974.
II
The majority‘s decision accords appellee a constitutional right contrary to the language of the Constitution.
“Compensation of justices, judges and justices of the peace
(a) Justices, judges, and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.”
It is fundamental that a court must interpret the Constitution to give effect to the intent of its framers. E. g., Moers v. City of Reading, 21 Pa. 188 (1853). In ascertaining this intent, we should not give the language of the Constitution a strained or technical construction; rather, “the words should be interpreted in their popular, natural and ordinary meaning.” Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 896 (1976). We must not interpret provisions of the Constitution in such a way that unreasonable or absurd consequences result. Commonwealth v. Darcy, 362 Pa. 259, 66 A.2d 663 (1949).
Thus, when the common and popularly understood meaning of compensation is payment for services rendered, the provision of the Constitution directing that judges be “compensated” does not grant appellee a right to a judicial salary for the time when prior to taking the oath of office he did not perform judicial services because he was not entitled to office due to a lawful election dispute.
In Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976), we held that a justice of the peace who retired mandatorily at the age of 70 was not entitled to receive the salary which would have been earned in the remaining years of his term of office. Mr. Justice (now Chief Justice) Eagen, speaking for a unanimous Court, stated:
“We consider it far more likely that the voters would have assumed that appellant‘s mandatory retirement would not only cut short his active service as justice of the peace but his salary based on such active service as well.”
The principle established in Firing is clear: when judicial services cannot be lawfully performed there is no constitutional right to the payment of salary. I can see no material difference between Firing and this case.
If there is no constitutional right to payment for judicial services not performed because of operation of law at the end of a term of office, Firing v. Kephart, supra, there is no constitutional right to payment for judicial services not performed because of operation of law at the beginning of a term of office. In each situation, the claimant lacks such a right because the judiciary article of the Constitution contemplates de jure capacity to perform the duties of office. Cf. Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977) (right to office of appointed judge ends before expiration of term when elected judge takes oath for same office); Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976) (same); Simmons v. Tucker, 444 Pa. 160, 281 A.2d 902 (1971) (term of office of federal judge begins not at time of appointment or of receiving commission but at time nominee takes oath of office).2
For the proposition that an elected official who assumes office following a contested election is entitled to compensation for the time when he cannot lawfully serve as a judge, the majority relies on Rink v. Philadelphia, 15 W.N.C. 345 (Pa.1884), aff‘d, 17 W.N.C. 136, 1 Sadler 390, 2 A. 505
“It plainly would be anomalous to construe the Constitution . . . as permitting two persons filling two separate terms to occupy the same office at the same time.”
466 Pa. at 567, 353 A.2d at 836-37. Consequently, the dated authorities relied upon by the majority are unpersuasive and I would overrule Rink.3
This position is fully consistent with the diminishment clause of Section 16(a) of the judiciary article. That clause,
“[T]he compensation [of justices, judges, and justices of the peace] shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.”
This Court stated in Firing v. Kephart, supra:
“though the ‘regular’ term of office of a justice of the peace is six years, the Constitution clearly indicates that the term of a justice of the peace does not have to be a regular one.”
“[An elected official] holds office for the benefit of his constituents and cannot justifiably rely on a private need or expectation in holding office. . . . [He] is subject to the conditions imposed by the terms and nature of the political system in which he operates.”
473 Pa. at 524, 375 A.2d at 713. Thus, though the regular term of office of a judge of the court of common pleas is ten years,
The majority‘s decision creates an obvious inequity among members of the courts of common pleas. Of all of the common pleas court judges in the Commonwealth, only appellee will receive both a judicial salary and income from the private practice of law for the period during which his election was in dispute. The anomalous result is that appellee will receive substantially greater income from this period than did any of his brethren, even though, unlike the other common pleas court judges, he performed no judicial services. Such a result is not only illogical, but holds considerable potential for impairing the orderly administration of judicial services.
Public confidence in the judicial system is fundamental to the proper administration of justice. Respect for a judicial system often called upon to make controversial and unpopular decisions is more easily maintained if there is public confidence in the impartiality of the decisionmaking process. It is unlikely that this public confidence will be advanced by a decision awarding a judicial officer a sum of money from public funds which admittedly has not been earned.
The majority finds in the Constitution a right which the Constitution does not grant. I dissent.
PACKEL, J., joins in this Dissenting Opinion.
I respectfully dissent. I do not agree that a judge should be able to receive his salary retroactively for a period during which he does not, albeit understandably, comply with the corresponding ethical obligations that attach to judicial office.
I have no quarrel with the general proposition that a judge, like any other holder of elective office whose oathtaking has been delayed because of an election contest, should receive the salary to which he would be entitled had there been no contest. This seems compelled both by considerations of fairness and by the statutes and cases discussed by the majority and which are unchallenged by appellant. Nor do I dispute the majority‘s conclusions that by engaging in the practice of law while the contest concerning his election was pending, Judge Reed did not violate either
What the majority does not take into account, however, is that this action to compel the payment of salary retroactively to the statutory commencement of the term of office is brought by a sitting judge who is subject to the Code of Judicial Conduct. And the Code, in my view, does not permit a judge to receive a judicial salary for a period of time when he performed work that was incompatible with the judicial office from which he now seeks earnings nunc pro tunc. As suggested above, the fact that there was an
Kelly v. Herb, supra, relied upon by the majority, has nothing to do with the ethical question presented by this case. Kelly held only that one who had been commissioned
The reliance of the Court on the decisions which establish the general proposition that an elected public official who assumes office after a disputed election is entitled to compensation as if he had served from the commencement of his elected term is also misplaced. Those cases speak in property law terms of “entitlement” to office, the emoluments which are “annexed” to it, and the “vesting” of rights to those emoluments.3 See cases cited in the opinion of the Court, ante at 573-575. However valid these concepts may be in most public office situations, they are wide of the mark when the office is a judicial one and the candidates are, necessarily, subject to the canons of professional and judicial ethics.4 The application of these canons to the elective process and the supervisory power of this Court over the conduct of judges and lawyers, see
Nor can I agree with appellee‘s implicit argument that a declaration that he has forfeited his right to salary for the contest period by practicing law works a diminution of judicial salary in violation of
Notes
The recount boards’ tally was as follows: Klein, 41,501; appellee, 30,598; and Walko, 30,591. Appellee and Walko appealed.
This Court heard their appeals. In July, 1974, we held that the record showed appellee to have received 30,615 votes, and that the trial court was to count certain additional ballots. In re Recount of Ballots, 457 Pa. 279, 325 A.2d 303 (1974).
After these additional ballots were counted, appellee was declared the winner of the second of the two seats. No appeal from this finding was taken and appellee took his oath of office and commenced the performance of his judicial duties on October 21, 1974.
1. Canon 5(F) of the Code of Judicial Conduct, adopted by this Court effective January 1, 1974, 455 Pa. xxix, xlii (1973), contains the same prohibition.Similarly, Kelly v. Herb, 147 Pa. 563, 23 A. 889 (1892), lends no support to the majority. Kelly holds that the right to continue private legal practice ends only upon taking the oath of judicial office. Whatever appellee‘s right to practice law until he assumed judicial office by taking the prescribed oath, the issue here, on which Kelly sheds no light, is whether appellee is entitled to judicial salary for the time following election when he could not lawfully perform judicial duties.
2. Canon 2(A) of the Code, supra note 1, 455 Pa. at xxx, provides in full:“A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. As the Commentary to this Canon explains: Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
Canon 2 of the Code of Judicial Conduct has its counterpart in Canon 9 of the Code of Professional Responsibility, adopted by this Court effective February 27, 1974, 455 Pa. lvii (1974):
“A lawyer should avoid even the appearance of impropriety.” The ethical considerations which accompany the Canon expand upon this concept. See 438 Pa. xxv, cxiii-cxiv (1970).
While we are of the view that the merits of this issue are not before the Court in this case and, therefore, not properly considered here, we suggest that the dissent‘s reliance on Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1974) is clearly misplaced. Firing involved the question of the right of a justice of the peace to receive a salary from the date that the office holder reached 70 years of age to the date upon which the term would otherwise have terminated. As expressed in Firing, a term of office is considered to have ended upon reaching age 70 or upon the expiration of six years, whichever occurs first.
“Justice, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.”