The Berks County legal community received some good (and long overdue) news on Monday, when President Barack Obama announced that he has nominated President Judge Jeffrey L. Schmehl of the Berks County Court of Common Pleas to serve as judge of the United States District Court for the Eastern District of Pennsylvania.  United States Senators, Bob Casey Jr. and Pat Toomey, recommended President Judge Schmehl and fellow nominees, United States Magistrate Judge, L. Felipe Restrepo, and Philadelphia Court of Common Pleas Court Judge, Nitza I. Quiñones Alejandro, as part of a joint committee established to address the growing list of Eastern District Court vacancies.  Pending his confirmation by the United States Senate, President Judge Schmehl will be assigned to the federal court facilities in the Madison Building on Washington Street in Reading.  

On Tuesday, Reading Eagle reporter, Mary Young, discussed a few possible consequences of Judge Schmehl’s nomination, suggesting that, unless the United States Senate acts on Judge Schmehl’s confirmation before Saturday, January 5, 2013, it might be over two years before Berks County voters are able to elect President Judge Schmehl’s permanent replacement on the bench.

To explain Ms. Young’s point, Article V, § 13 of the Pennsylvania Constitution provides that judges shall be elected at the municipal election next preceding the commencement of their respective terms of office.  Municipal elections are held in off-years, with the next election scheduled for Tuesday, November 5, 2013.  A regular judicial term for elected/retained judges is ten years.  If, however, a judge resigns during the course of a judicial term, such vacancy shall be filled by appointment by the Governor.  See Pennsylvania Constitution, Article IV, § 8.  The Governor, if he chooses to fill the vacancy, is required to nominate someone within 90 days - the Governor’s nominee will then proceed to the Pennsylvania Senate for confirmation by a two-thirds majority of elected members.  See Pennsylvania Constitution, Article IV, § 13(b).  Thus, if and when President Judge Schmehl resigns to sit on the federal bench, Governor Tom Corbett will likely appoint his successor.  The question is:  for how long will the new appointee sit?

The Constitution requires that the Governor’s appointee shall serve for a term “ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs or for the remainder of the unexpired term, whichever is less.”  See Pennsylvania Constitution, Article IV, § 13(b).  Judge Schmehl’s retention term expires on the first Monday of January 2018.  The lesser period set forth by Section 13(b) would, therefore, necessarily be the first Monday in January following either (a) the November 5, 2013 municipal election, or (b) the November 3, 2015 municipal election, depending on the date of his resignation.   

Although other elected officeholders are free to gather signatures before Pennsylvania’s March 12, 2013 nomination petition deadline, the Pennsylvania Constitution treats judicial vacancies differently.  The Constitution requires a ten-month advance notice period to set the stage for a 2013 judicial race.  If this advance notice period is not met, the Constitution (and the Pennsylvania Supreme Court) treats the vacancy as “unanticipated,” requiring a longer appointment term spanning almost three years.

The Pennsylvania Court recently addressed the so-called “ten-month” rule in Otter v. Cortes, 980 A.2d 1283, 1284 (Pa. 2009).  The Supreme Court set forth the facts of that matter as follows:

On February 11, 2009, then-President Judge David W. Heckler resigned from the Bucks County Court of Common Pleas.  Judge Heckler's term of office was not due to expire until December 31, 2017 and he would not have reached the mandatory retirement age of 70 in 2009.  The vacancy created by Judge Heckler's early resignation was therefore unanticipated.  Pedro A. Cortes, the Secretary of the Commonwealth of Pennsylvania (the "Secretary"), did not identify Judge Heckler's seat as a vacancy that could be filled in the November 3, 2009 municipal election.  Based on Article 5 § 13(b) of the Pennsylvania Constitution, the Secretary ruled that only vacancies created  by January 3, 2009 - ten months prior to the November election--could be filled in that election. The Secretary determined that because Judge Heckler's seat was not vacated until February 11, 2009, it must be filled by appointment of the Governor until the 2011 municipal election.

Id. at 1284

A local attorney, Larry Otter, filed a petition for writ of mandamus in Commonwealth Court arguing that the Secretary should have added Judge Heckler's seat to the ballot for November 2009 municipal election, arguing, among other things, that strict application of the ten month rule “frustrates the Constitution's intention that judges in this Commonwealth be elected and not appointed.”

The Court ruled against Mr. Otter, finding his argument “laudable” but, ultimately, one without merit:

Appellant's populist notion that all vacancies in public office should be resolved by election is a laudable democratic ideal but it is not the procedure codified in our Constitution. Instead, Article 5 § 13(b) provides that vacancies should be filled by election only when they occur more than ten months before the general election. This ten month rule serves its own democratic policy which we may not ignore. Potential candidates need time to decide to run and set up an election organization to effectuate the task of securing a place on the ballot. Undoubtedly, some individuals may be well-equipped to launch a campaign with minimal notice. But advance notice of vacancies equalizes opportunity, while the last-minute placement of an unexpected seat on the ballot tends to negate that equalization. Appellant's argument that courts should apply an ad hoc rebuttable presumption analysis to the question of whether a vacancy should be filled  [*525]  by election or gubernatorial appointment undermines the need for bright-line foreseeability and is therefore untenable.

Id. at 1288.

Accordingly, unless the United States Senate acts on President Judge Schmehl’s nomination on or before Saturday, January 5, 2013, the Governor’s nominee will likely serve out a lengthy term before running for retention in November 2015.  Surely, President Obama’s recent nominations will receive the prompt and undivided attention of the United States Senate.  In any event, Berks County will go to the polls on November 5, 2013 to elect one or more Common Pleas judges. There are currently two vacancies - not counting President Judge Schmehl’s - and, as reported in the Reading Eagle, the field is already crowded.