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PA Bulletin, Doc. No. 01-363



Notice Regarding the Office of Judge of the Court of Common Pleas of Fayette County

[31 Pa.B. 1290]

   Under section 903 of the Pennsylvania Election Code (25 P. S. § 2863), the Secretary of the Commonwealth (Secretary) has designated the office of Judge of the Court of Common Pleas of Fayette County as an office to be filled at the November 2001, Municipal Election, with nominations to be made by the major political parties at the May 15, 2001, Municipal Primary. The Secretary has made this designation in anticipation of the scheduled mandatory retirement of Judge William Franks on January 5, 2002 (the day on which the judge will attain the age of 70 under Commonwealth law), a date 2 days prior to the constitutionally prescribed judicial inauguration day of January 7, 2002. The Secretary's designation of the office is in accord with the opinion of the Supreme Court of Pennsylvania (Court) issued in Barbieri v. Shapp, 476 Pa. 513, 383 A.2d 218 (1978), in which the Court said that ''[w]hen a judge reaches mandatory retirement age less than 10 months before a municipal election, or between Election and Inauguration Days, a regularly conducted election to fill the judge's seat may be held without waiting 2 years for the next municipal election.'' 476 Pa. at 520, 383 A.2d at 222 (italics added). In Barbieri, the Court made clear that when such a mandatory retirement is anticipated, the Secretary must designate the judicial office for election in the municipal election scheduled that year.

   Notwithstanding, the Secretary's current designation of the office for this year's municipal primary and municipal election; however, it should be noted that a constitutional amendment, proposed by the General Assembly and scheduled for referendum vote on May 15, 2001, if adopted, would change the law in a way that might require the Secretary to reconsider her designation of the office of Judge of the Court of Common Pleas of Fayette County as an office to be filled in the November 6, 2001, Municipal Election. Specifically, the voters of this Commonwealth will be asked on May 15, 2001, whether to amend Article V, § 16(b) of the Constitution of Pennsylvania to provide that justices of the Supreme Court, judges and justices of the peace (known as district justices) shall be retired on the last day of the calendar year in which they attain the age of 70 years, rather than on the day they attain the age of 70.

   If the amendment were approved, then Judge Franks would not be required to retire upon attaining the age of 70 on January 5, 2002. Rather, under the amendment, Judge Franks would be legally eligible to continue to serve as judge until December 31, 2002. Thus, if the amendment were adopted on May 15, 2001, and Judge Franks were to continue thereafter to serve as a commissioned judge of the Court of Common Pleas of Fayette County, the Secretary could no longer reasonably anticipate, under the dictates of Barbieri v. Shapp, that a judicial vacancy will exist on the court on Inauguration Day, January 7, 2002. Under such circumstances, therefore, the Secretary likely would be required to rescind her designation of the office of Judge of the Court of Common Pleas of Fayette County as an office to be filled at the November 2001 Municipal Election. The Secretary would make her decision in this regard as soon as the results of the referendum were certified and the amendment proclaimed by the Governor to have been adopted.

Secretary of the Commonwealth

[Pa.B. Doc. No. 01-363. Filed for public inspection March 2, 2001, 9:00 a.m.]

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