Abraham v. Shapp , 484 Pa. 573 ( 1979 )

NIX, Justice,

dissenting.

Under the scheme of retention elections, the timely filing of the declarations for candidacy for retention not only triggers the right of the judge to have his name placed upon the ballot in the general election, but it also removes that office as an office to be filled by the regular election process. Of particular significance to the present inquiry, the filing of a valid declaration forecloses the right to seek the position by filing nominations petitions or papers to other aspirants for the office. Conversely, if a valid declaration for candidacy is not timely filed, 42 Pa.C.S.A. § 3131(b), the office must then be filled in accordance with the provisions of the Election Code, Act of June 31, 1937, P.L. 1333, art. I, §§ 1 et seq., as amended, 25 P.S. §§ 2600 et seq. (Supp.1978-79). Each step of the election process, including the opportunity to object, is carefully constrained by mandatory time requirements under the Election Code. Although the Judicial Code, 42 Pa.C.S.A. § 101 et seq. provides the time in which the declaration of candidacy for retention election must be filed with the Secretary of the Commonwealth, 42 Pa.C.S.A. § 3131(b), it does not expressly provide for either a procedure whereby the validity of the declaration can be challenged or the time limits within which the objections may be made.¹

We have long recognized that equity should have no jurisdiction in election matters and that it is the responsibility of the legislature by appropriate legislation to provide the procedures for elections to public office. Thompson v. Morrison, 352 Pa. 616, 44 A.2d 55 (1945); Wilson v. Phila., 319 Pa. 47, 179 A. 553 (1935); Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914); Patterson v. Barlow, 60 Pa. 54 (1869). This Court has also recognized that the legislature intended that the Election Code should provide a complete and adequate remedy for any complaints in the election process. Thompson v. Morrison, supra. Although the legislature intended to provide an alternative procedure for the selection of public officers by its enactment of § 3131(b), it did not intend that appropriate provisions of the Election Code should be ignored.

Petitioner in the instant matter sought to raise her objections by requesting declaratory relief pursuant to the Act of June 18, 1923, P.L. 840, §§ 1-16, as amended, 12 P.S. §§ 831-846. I believe that her contentions should have been raised pursuant to § 2937 of the Election Code. I am persuaded to adopt this view not only because I believe the Election Code where applicable was intended to control the retention process, but also because declaratory judgment is not an optional substitute for established and available remedies. State Farm Mut. Auto Insur. Co. v. Semple, 407 Pa. 572, 180 A.2d 925 (1962).

It is argued that this is not an attack on the papers filed by respondent Judges but rather an attempt by the petitioner to assert her right to run for the office. This is a classic illustration of a distinction without a difference. Petitioner has no right to seek the office if there has been a valid filing of the declaration of retention. Section 2937 is not limited to formal defects, substantive objections may also be considered. Thus the fact that petitioner’s contentions are directed to respondent Judges’ rights to seek this method of election would be cognizable under an objection filed pursuant to § 2937. The majority while not disputing that the legislature intended the Election Code to govern “the retention process in other circumstances”² attempts to justify the consideration of the merits for the reason set forth in Barbieri v. Shapp, 470 Pa. 463, 368 A.2d 721 (1977).³ The situation confronted in Barbieri v. Shapp, supra, is inapposite to the present inquiry. In Barbieri v. Shapp, supra, we were faced with the relatively unique situation where an incumbent judge was unable to ascertain when his declaration of candidacy for retention pursuant to Article V, Section 15(b) of the Pennsylvania Constitution should be filed. Because of the transition between the terms of office under the Constitution prior to the 1968 Amendment and after, there was an apparent conflict between the 10-year term limit and the provision for election of judges only during municipal elections to be held in odd-numbered years. Clearly in that case, there was no adequate procedure under the Election Code to resolve this controversy and declaratory judgment was properly entertained. In contrast, under the present facts the respondent Judges have filed their declarations of retention pursuant to the authority of § 3131. If an aspirant for the offices wishes to assert the invalidity of those declarations for either formal or substantive reasons, § 2937 provides the procedure for raising those complaints. Frequently, disputes under § 2937 are between rival candidates for the office in question. The fact that petitioner’s right to become a candidate for the office is conditioned upon the success of her challenge is for this purpose of no legal significance. The crucial difference between this action and the situation presented in Barbieri v. Shapp, supra, is that in the latter appeal there was a legitimate uncertainty as to when the controversy would be justiciable. No such uncertainty exists here. Thus, I cannot conclude that the reasons which moved this Court to provide declaratory relief in Barbieri v. Shapp, supra, justify our consideration of the merits of the instant appeal.

Finally, while I would not have an objection to construe petitioner’s request for declaratory relief as an objection pursuant to § 2937, I cannot ignore the time constraints in which such an objection must be raised. Under this section, the objection must be raised within seven days of the filing of the objectionable paper. We have long recognized the need to narrow time constraints in election matters. In the election procedure, time is of the essence in the resolving of disputes. See, e. g., In re Moore Nomination Petition, 447 Pa. 526, 291 A.2d 531 (1972); Socialist Labor Case, 332 Pa. 78, 1 A.2d 831 (1938).

It is, therefore, my view that this complaint was raised untimely and we should not reach the merits. I, therefore, must register my dissent to the decision of the majority who have concluded otherwise.

1 . The majority’s assertion that the “time limit for the filing of the retention papers here involved is fixed by [the] Pa.Const. art. 5 § 15(b) and 42 Pa.C.S.A. § 3153”, page 1253, is illustrative of their confusion of the issues presented in this appeal. As I understand the argument advanced by respondents, they do not suggest that art. 5 § 15(b) authorizes a retention election in this instance, but rather it is asserted that art. 5 does not preclude the legislature from providing for a retention election to fill the offices in question. If the legislature does have the right as urged by respondents, it is problematical whether it must meet the time schedule provided in section 15. What is controlling is that the statute purporting to confer this authority (§ 3131) expressly provides the time in which the declaration must be filed.

Moreover, § 3153 is clearly inapplicable. This section pertains to judges who have served a regular term, either as a result of election or retention. Thus, § 3153 obviously does not apply to instant respondent judges who have merely served an appointive term and are seeking full term.

2 . See page 1253.

3 . In this case, this writer filed a concurring opinion employing a different analysis than that expressed in the Opinion for the Court. Barbieri v. Shapp, 470 Pa. 463, 470, 368 A.2d 721, 725 (1977) (Nix, J., concurring).