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.

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 Pa.C.S.A. § 831-12 Pa.C.S.A. § 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" 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). 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.

MANDERINO, Justice, dissenting.

The majority correctly notes that the presumption is in favor of the constitutionality of a legislative act and that this Court may not strike down a statute unless it " 'clearly, palpably and plainly violates the Constitution.' " Yet the majority voids respondents' declaration for candidacy for retention election. This ruling is incorrect because petitioner has not sustained the burden of establishing that the statute is invalid. Tranter v. Allegheny Co. Authority, 316 Pa. 65, 75, 173 A. 289, 294 (1934), Sharpless v. Mayor, 21 Pa. 147, 164 (1853). I, therefore, must dissent.

In the past this Court has recognized the broad power of the General Assembly to control elections, particularly judicial elections. In McCormick v. Reeder, 171 Pa. 505, 33 A. 67 (1895) a procedure for electing judges to the Superior Court was challenged and this Court upheld as constitutional the procedure which permitted each voter to cast a ballot for only six candidates when seven judges were to be elected. In Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914), this Court upheld as constitutional a legislative act which provided that a judicial primary candidate who received a number of votes greater than half of the number of ballots cast in that primary election would be the sole nominee on the November ballot. Likewise, in Wasson v. Woods, 265 Pa. 496, 109 A. 214 (1919) this Court again upheld the sole nominee provision as constitutional. In Wasson, supra, the five candidates receiving the highest number of votes in the primary for the five vacant judgeships on the Court of Common Pleas of Allegheny County were placed as the sole nominees in the November ballot.

Finally, in Thiemann v. Allen (J-123 and J-124, filed April ___, 1979) this same Court upheld the constitutionality of 42 Pa.C.S.A. § 3133 (1918) which provides for each party to nominate only two candidates in the primary election and each voter to cast a ballot for only two candidates in the general election even though a total of three judges are to be elected to the Commonwealth Court.

The legislative enactment which we review today does not "clearly, plainly and palpably" violate the Constitution any more than the statute in the aforementioned cases. The majority opinion concludes without justification that "[E]lection refers to the process by which electors determine which person out of the number properly seeking the judicial position shall occupy it." (At p. 1250 n. 1). Yet, in all of the aforementioned cases this Court has held that the legislature could validly provide for various types of elections in some of which there was no process by which electors chose some persons out of a greater number of persons appearing on the ballot. Likewise, Act No. 1978-257, § 1(b)(3) amending 42 Pa.C.S.A. § 3131 merely provides another type of election in which the electors have the final say.

Act No. 1978-257, § 1(b)(3) authorizes the filing for retention election by a person appointed to the Commonwealth Court who:

"(i) shall have held office as an elected judge of a court of common pleas and shall not have been defeated for reelection or retention election;

"(ii) shall hold an appointive term on the Commonwealth Court which when added to his other service as a judge of a court of common pleas and/or the Philadelphia Municipal Court (whether or not continuously or on the same court and whether by election or appointment) shall aggregate at least ten years as of the date of expiration of such appointive term on the Commonwealth Court; and

"(iii) shall have been appointed to the Commonwealth Court pursuant to any executive order then in effect relating to the selection and screening of qualified nominees for appointment to the court."

The majority states that this clearly, palpably, and plainly conflicts with the Constitution because it permits a person never elected to a statewide judicial position to be "elected" through a retention process. I agree that this is exactly what Act. No. 1978-257 accomplishes; however, I can find no constitutional violation.

The majority rewrites art. 5, § 15(b) of the Pennsylvania Constitution and reads into it requirements that are clearly not there.

"A justice or judge elected under section thirteen (a) . . or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year preceding the year in which his term of office expires."

The majority's reading is not required, necessary or, indeed, desirable. First, the majority refuses to recognize the retention process itself as an election process. That ignores the language of the Constitution which refers to a retention election. Obviously, the voter does express a definite choice when he or she casts a "yes" or "no" ballot. The voter, when he or she casts such a ballot does, in a very real sense, determines "who shall fill a public office." (At p. 1253).

Secondly, the language of Section 15(b) is unambiguous and there is no need to resort to a strained interpretation. Nonetheless, the majority relies upon "implications" and finds that, despite the language of the constitution, being elected to a judicial office under Section 13(a) is not enough, rather one must have been elected in a contested election to the judicial position which he or she now seeks. The majority reasons that since Section 15(b) uses a possessive phrase — "his term of office" then one must possess the office before he or she can be retained in the office. (P. 1252). The majority takes the point one step further and holds that one can possess an office only if elected to that same office. Now, I must disagree. One appointed to office possesses that office as fully and completely for the term of his or her appointment as does one who is elected. One who is appointed to judicial office possesses a "term of office" in the specific language of the Constitution as much as one who is elected. Section 13(b) states:

" The person so appointed shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs."

The powers of an appointed judge are the same as an elected judge. The appointed judge does possess that office and I fail to see any rationale for distinguishing that possession from that of an elected judge. The majority's rationale in this area is not only confusing but it fails woefully short of the type of proof necessary before striking down the presumption of constitutionality.

Thirdly, respondents have already been elected in one contested judicial election under section 13(a) and therefore, respondents do qualify under the Constitutional definition of who may file a declaration of candidacy for retention. Art. 5 § 15(b). Respondent, DiSalle, was elected under Section 13(a) to the Court of Common Pleas of Washington County and was serving this term when appointed to the Commonwealth Court. Although respondent, MacPhail was a retired judge when he received his appointment to the Commonwealth Court, he too had previously been elected under Section 13(a) to the Court of Common Pleas of Adams County. The reasonable interpretation of the retention election section is that one contested election is all that is required in the career of a judge. There is no reference to the fact that one must be elected to a statewide judicial position in order to be so retained. This Court cannot impose such a requirement of its own accord and then find that Act No. 1978-257 "clearly, palpably and plainly" violates such a judicially created requirement. Voters, statewide, do have recourse in the "yes"-"no" retention election, and have a very real, meaningful basis for their vote since the retention candidate is not an unknown quantity as a judge, regardless of whether the judgeship was statewide or not. Respondents fit all the criteria constitutionally required for a retention election and this Court should not invalidate their candidacy for such.

Finally, the legislative enactment before us today is entirely consistent with the prior enactments by the General Assembly concerning the Commonwealth Court.

Act No. 1978-257 is therefore constitutional and respondents should be permitted to file for retention election.