Creamer v. Twelve Common Pleas Judges
| Decision Date | 24 June 1971 |
| Citation | 281 A.2d 57,443 Pa. 484 |
| Parties | J. Shane CREAMER, Attorney General, Commonwealth of Pennsylvania, Petitioner, v. TWELVE COMMON PLEAS JUDGES, a Judge of the Commonwealth Court, and a Justiceof the Supreme Court of Pennsylvania, Respondents. James H. J. TATE, Mayor of City of Philadelphia and a taxpayer of the City ofPhiladelphia, on his behalf and on behalf of all the taxpayers of the saidCity, Petitioner, v. Honorable D. Donald JAMIESON, President Judge, Court of Common Pleas ofPhiladelphia, John E. Walsh, Jr., Herbert W. Salus, Jr., Respondents. William J. C. O'DONNELL, as an individual, as an officer of court of the Courtof Common Pleas of the 15th Judicial District, on his own behalf and on behalfof that class of persons who have matters pending before said court, Petitioner, v. Thomas A. PITT, Jr., an Additional Law Judge of the 15th Judicial District, Respondent, |
| Court | Pennsylvania Supreme Court |
J. Shane Creamer, Atty. Gen., Harrisburg, Isarel Packel, Counsel to the Governor, Department of Justice, Harrisburg, for Creamer.
Levy Anderson, City Sol., Matthew W. Bullock, Jr., 1st Deputy City Sol., Philadelphia, for Tate.
John E. Walsh, Jr., Herbert W. Salus, Jr., I. Raymond Kremer, Kremer, Krimsky & Luterman, Philadelphia, Thomas A. Pitt, Jr., William H. Lamb, Lamb, Windle & McErlane, West Chester, Paul J. Cody, James E. Beasley, Beasley, Albert, Hewson & Casey, Philadelphia, for all respondents except Thos. A. Pitt, Jr. and Paul J. Cody.
Edward Friedman, Dechert, Price & Rhoads, Harrisburg, Robert M. Mountenay, Victor S. Jaczun, Perkasie, Guy G. deFuria, Chester, for Robert A. Wright and Domenic D. Jerome.
I. Raymond Kremer, Kremer, Krimsky & Luterman, Philadelphia, for respondent, Herbert W. Salus, Jr., and John E. Walsh, Jr.
William J. C. O'Donnell, O'Donnell & O'Donnell, Phoenixville, for O'Donnell.
Theodore O. Rogers, Rogers, Gentry, Windle & Lamb, West Chester, for respondent Pitt.
Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
The Court has unanimously determined that the gubernatorial appointments to judicial vacancies of Justice Barbieri, Judge Rogers, Judge Salus, judge Stefan, Judge Jerome, Judge Wright, Judge Cody and Judge Gladen 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 § 1844b (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 No. 223 of July 31, 1970, P.L. ---, art. II, § 205, 17 P.S. § 211.205 (1971), assumed plenary jurisdiction without the previous adjudication of any other court. Accordingly, there is no judgment, order or decree to affirm, modify or reverse.
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, 295 Pa. 1, 144 A. 735 (1928), two election return judges were divided over the question whether certain ballot boxes should be opened. Before this Court on a writ of prohibition, it was pertinently stated:
(Emphasis added.) 295 Pa. at 12--13, 144 A. at 739.
See, also, Summers v. Kramer, 271 Pa. 189, 114 A. 525 (1921); Madlem's Appeal, 103 Pa. (7 Out.) 584 (1883). The rule is not different when this Court, exercising its King's Bench power and the authority vested in it under the Appellate Court Jurisdiction Act, is equally divided. Therefore, the requested relief cannot be granted.
BARBIERI, J., did not participate in the consideration or decision of these cases.
JONES and POMEROY, JJ., filed an opinion in support of the PER CURIAM order in which EAGEN, J., joined.
BELL, C.J., filed an opinion supporting in part and opposing in part the results announced in the PER CURIAM order, in which O'BRIEN and ROBERTS, JJ., joined.
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 sound construction of a fairly similar constitutional provision in the United States Constitution by the federal courts.
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, P.S., 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:
1
In Commonwealth ex rel. Lefean v. Snyder, 261 Pa. 57, 104 A. 494 (1918), this provision was construed to mean that a vacancy in an appointive office which first came into existence during a session of the Senate, but was not filled during the session, continued to exist or to 'happen' after adjournment of the session, and so could be filled by appointment without senatorial confirmation; and this was so even though the appointee's name had been submitted to but specifically rejected by the Senate. 2 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 by the electorate on April 23, 1968. This article, unlike its predecessor, included a section dealing with the filling of judicial vacancies, and a corresponding change was made in Article IV, § 8, to make that section inapplicable to such vacancies. The new section, § 13(b), is as follows:
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 of the power which, since the Constitution of 1838, he had with respect to judicial appointments. This requires an examination of the verbal changes that the appointive provision of the new Article V ( § 13(b)) made in the appointive provision of Article IV ( § 8).
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 substances, for 'occur' and 'happen' are universally recognized as synonymous. 4 Moreover, the use of the present tense implies a continuity or timelessness in...
To continue reading
Request your trial
-
Sprague v. Cortés
...to grant relief and the status quo of the matter prior to the filing of the lawsuit is maintained. See Creamer v. Twelve Common Pleas Judges , 443 Pa. 484, 281 A.2d 57 (Pa. 1971) (holding that where this Court was evenly divided in a King's Bench original jurisdiction matter challenging gub......
-
U.S. v. Griggs
...by an evenly divided court, but it is a principle of long standing and wide application. See Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A.2d 57, 58 (1971) (per curiam). There apparently is no clear Pennsylvania authority as to the precedential value of an opinion issued in thes......
-
In re Bruno
...removed by certiorari out of inferior courts as on those originally commenced here”); see, e.g., Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A.2d 57, 58 (1971) (per curiam ) (Supreme Court exercised King's Bench jurisdiction to review validity of governor's judicial appointments......
-
In re McAleer
...and Justice Donohue each write separately to set forth a basis for reaching the contrary result.3 See Creamer v. Twelve Common Pleas Judges , 443 Pa. 484, 281 A.2d 57, 58 (1971) ("The principle is well established in this Commonwealth as well as many other jurisdictions that, when an appell......