Thiemann v. Allen

• Decision Date: 31 May 1979
• Citation: Thiemann v. Allen, 402 A.2d 1348, 485 Pa. 431 (Pa. 1979)
• Parties: Dennis E. THIEMANN, Petitioner, v. Ethel D. ALLEN, D. O., Secretary of the Commonwealth of Pennsylvania, and Louis C. Mete, Commissioner of the Bureau of Elections, Commissions and Legislations for the Commonwealth of Pennsylvania, Respondents, Republican State Committee of Pennsylvania, Amicus Curiae. David W. CRAIG, Judge of the Commonwealth Court of Pennsylvania, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF STATE, Ethel D. Allen, D. O., Secretary of the Commonwealth of Pennsylvania, and Louis C. Mete, Commissioner of the Bureau of Elections, Commissions and Legislations of the Commonwealth of Pennsylvania, Respondent, Republican State Committee of Pennsylvania, Amicus Curiae.
• Court: Pennsylvania Supreme Court

Page 1348

402 A.2d 1348

485 Pa. 431

Dennis E. THIEMANN, Petitioner, v.Ethel D. ALLEN, D. O., Secretary of the Commonwealth of

Pennsylvania, and Louis C. Mete, Commissioner of the Bureau

of Elections, Commissions and Legislations for the

Commonwealth of Pennsylvania, Respondents,

Republican State Committee of Pennsylvania, Amicus Curiae.

David W. CRAIG, Judge of the Commonwealth Court of

Pennsylvania, Petitioner, v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF STATE, Ethel D.

Allen, D. O., Secretary of the Commonwealth of Pennsylvania,

and Louis C. Mete, Commissioner of the Bureau of Elections,

Commissions and Legislations of the Commonwealth of

Pennsylvania, Respondent,

Republican State Committee of Pennsylvania, Amicus Curiae.

Supreme Court of Pennsylvania.

Argued March 13, 1979.

Decided May 31, 1979.

[485 Pa. 432] Thomas R. Balaban, Harrisburg, for Thiemann.

Gaylen J. Byker, Philadelphia, for amicus curiae.

Burton D. Morris, Harrisburg, for Craig.

Edward G. Biester, Jr., Atty. Gen., Robert E. Kelly, Norman J. Watkins, Deputy Attys.Gen., for respondents.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.

ORDER

PER CURIAM.

AND NOW, TO WIT, THIS 3rd day of April, 1979, 42 Pa. C.S.A. § 3133(1978) is ruled constitutional.The Secretary of the Commonwealth of Pennsylvania and the Commissioner of the Bureau of Elections, Commissions and Legislations of the Commonwealth are directed to notify the County Boards of Election throughout the Commonwealth and every other party entitled to notice that, in the primary election of 1979, each political party may nominate two candidates for the office of judge of the Commonwealth Court and that, in the primary election of 1979 and in the municipal election of 1979, each elector may vote for two persons or candidates for the offices to be filled.

Leave is granted to any person who filed nomination papers for the office of judge of the Commonwealth Court to withdraw said papers by 5:00 p. m. on April 10, 1979, and the Secretary of the Commonwealth is directed to accept any such withdrawals within the stated period.

Opinions to follow.

NIX, J., dissents and would hold that 42 Pa. C.S.A. § 3133(1978) is unconstitutional.

LARSEN, J., dissents.

OPINION OF THE COURT

EAGEN, Chief Justice.

Pursuant to 42 Pa. C.S.A. § 726(1978), we assumed extraordinary jurisdiction of the above captioned petitions for review filed in the Commonwealth Court.Oral argument was presented by petitioners, respondents and, by leave of Court, Amicus Curiae.The substantive issues presented involve the proper application of 42 Pa. C.S.A. § 3133(1978) to the primary ¹ and municipal ² elections of 1979 and the constitutionality of that statute.

42 Pa. C.S.A. § 3133(1978) provides:

"Whenever two or more judges of the Commonwealth Court are to be elected pursuant to 3131(c)(relating to selection of judicial officers for regular terms) at the same election, each qualified elector shall vote for no more than:

(1) one-half of the number of judges to be elected, if the total number to be elected is even; or

(2) the smallest number constituting a majority of the total number of judges to be elected, if the total number to be elected is odd.

"The persons having the highest number of votes, up to the total number of judges to be elected, shall be elected."

The total number of judges to be elected to the Commonwealth Court pursuant to 42 Pa. C.S.A. § 3131(c)(1978) in the 1979 municipal election is three.SeeAbraham v. Shapp, --- Pa. ---, 400 A.2d 1249(1979) and order dated February 8, 1979 in cited case, No. 1 E.D. Misc. Dkt. 1979.Respondent, Secretary of the Commonwealth, following the filing of the cited order and pursuant to 42 Pa. C.S.A. § 3133(1978), notified the county boards of election that each political party was to nominate two candidates for the three judicial offices of the Commonwealth Court to be filled in the municipal election and that each elector was to vote for two candidates in the municipal election.In response to that notification, petitioner, Dennis E. Thiemann, filed a petition for review challenging the constitutionality of 42 Pa. C.S.A. § 3133(1978).The Secretary, upon the advice of the Attorney General, then revised her interpretation and notified the State chairperson of each of the two major political parties in the Commonwealth that her interpretation of 42 Pa. C.S.A. § 3133(1978) as revised would result in each elector being permitted to vote for three persons in the primary with each political party nominating three candidates.This notification did not alter the Secretary's earlier directive that in the municipal election each elector could vote for no more than two candidates to fill the three offices.The Secretary stands ready to notify the county boards of election of the revised interpretation, but has refrained from doing so pending the outcome of this action.Petitioner, David W. Craig, a judge of the Commonwealth Court who has filed nomination petitions, then filed a petition for review seeking alternative rulings, viz. that each party may nominate three candidates in the primary and each elector may vote for three candidates in the municipal election if the statute is declared unconstitutional or that each party may nominate two candidates and each elector may vote for two candidates in the municipal election if the statute is upheld.Amicus Curiae argues that the statute is constitutional; that each party may nominate two candidates; and, that each elector may vote for two candidates in the municipal election.

At the outset we are required to construe 42 Pa. C.S.A. § 3133(1978).The clear and unambiguous language thereof mandates an interpretation which allows each elector to vote for two persons in the 1979 primary and each elector to vote for two candidates in the 1979 municipal election.

1 Pa. C.S.A. § 1921(a)(Supp. 1978-79) provides that the "object of interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly," and (b) provides:

"(w)hen the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."

Clearly, 42 Pa. C.S.A. § 3133(1978) limits an elector to voting for two persons when three judges of the Commonwealth Court are "to be elected pursuant to 42 Pa. C.S.A. § 3131(c) . . . at the same election."

The Secretary's interpretation would confine the term "election" to the municipal election and, hence, result in the statute being inapplicable to the primary.42 Pa. C.S.A. § 3133and§ 3131(c)(1978) must be read in pari materia with the provisions of the Election Code,25 P.S. §§ 2601 Et seq., because each "relate(s) to the same . . . things or to the same class of . . . things."1 Pa. C.S.A. § 1932(a)(Supp. 1978-79);City of York v. Reihart, 475 Pa. 151, 379 A.2d 1328(1977).Furthermore, when statutes are in pari materia, they must "be construed together, if possible, as one statute,"1 Pa. C.S.A. § 1932(b)(Supp. 1978-79);Commonwealth v. Philadelphia Electric Co., 472 Pa. 530, 372 A.2d 815(1977), and "(e)very statute(must) be construed, if possible, to give effect to all its provisions."1 Pa. C.S.A. § 1921(a)(Supp. 1978-79);City of York v. Reihart, supra;Appeal of Neshaminy Auto Villa LTD., 25 Pa.Cmwlth. 129, 358 A.2d 433(1976).

25 P.S. § 2602(f) defines election as "any general, municipal, special or primary election, unless otherwise specified."Hence, "election" under 42 Pa. C.S.A. § 3133(1978) includes a primary election because it does not otherwise specify.

The Secretary argues the statute refers to an election in which judges are "to be elected" and, hence, does not apply to primary elections because in that process judges are not elected, rather persons are nominated as candidates, citing 25 P.S. § 2602(r).The argument is only technically plausible.

First, the term "to be elected" in the first part of 42 Pa. C.S.A. § 3133(1978) does not appear to be used to limit the term "election."Clearly, had the Legislature intended to limit the term election to "municipal election," it could easily have done so since the latter term is already defined at 25 P.S. § 2602(j).This, the Legislature did not do.

Second, the last sentence of 42 Pa. C.S.A. § 3133(1978) indicates those who shall ultimately be elected, but does not limit the first sentence.

Third, were we to accept the Secretary's position, we would, as a practical matter, be compelled to conclude the Legislature has impliedly abolished straight party voting as provided for at 25 P.S. §§ 2963(f)and3007(b).³ There is no indication in 42 Pa. C.S.A. § 3133(1978) that any such result was intended, and we must give effect to all legislative pronouncements if possible, 1 Pa. C.S.A. § 1922(2)(Supp. 1978-79), and find an implied repealer only if the statutes are irreconcilable.1 Pa. C.S.A. §§ 1932 and 1936 (Supp. 1978-79);City of York v. Reihart, supra;Appeal of Yerger, 460 Pa. 537, 333 A.2d 902(1975).Our interpretation reconciles the statutes by allowing for both limited voting and straight party voting.Hence, we give effect to both provisions and do not find an implied repealer.

Thus, we conclude 42 Pa. C.S.A. § 3133(1978) is clear and unambiguous and by its terms applies to the primary, as well as the municipal, election.Our interpretation is fortified by a study of the history of limited voting in the Commonwealth.

The primary election process determines the candidates of each party for the municipal or general election.25 P.S. §§ 2602(k),2602(r);1 Pa. C.S.A. § 1991 (Supp. 1978-79).Historically, when limited voting applied, a party, whether through the primary election process or through some other means, ⁴ nominated only as many candidates as an elector was allowed to vote for in the general or municipal election.Musmanno v. Lawrence, supra at 99-100.The General Assembly...