Can the General Assembly Constitutionally Provide for Retention of a Judge Who Had Not Been Initially Elected ?
In Abraham v. Shapp, 484 Pa. 573, 400 A.2d 1249 (1979), our Supreme Court discussed the difference between a retention election and a contested election.
Chief Justice Eagen, writing for four members of a 6-justice Court, noted that: Retention and election processes are distinct processes.
Retention as used herein refers to the process by which the electors determine whether a judicial officer shall remain in his position as set forth in Pa. Const. art. 5, 15(b)(1968), or, more commonly, it refers to a "yes-no" determination.
Election refers to the process by which the electors determine which person out of the number properly seeking the judicial position shall occupy it. 484 Pa. at 576, n.1, 400 A.2d at 1250, n.1.
At issue in Abraham was whether the General Assembly could constitutionally provide for retention of a judge who had not been elected initially.
Justice Eagen concluded that Section 13(a) of Article V "sets forth a general mandate that judges are to be elected." 484 Pa. at 577, 400 A.2d at 1251. Section 15(b), according to Justice Eagen, specifically exempts certain persons from the general mandate of Section 13(a) and permits those specific persons to file for retention elections.
Justice Eagen dismissed the argument that retention "is an election process," concluding that "unlike the term 'election,' retention is specifically defined in the Constitution. Pa. Const. art. 5, 15(b).
Furthermore, section 13(c) and 15(b) mandate and allow the election and retention processes under specifically defined circumstances.
Such specific delineation would hardly be necessary were it intended to equate the processes." Id. at 581, 400 A.2d at 1253.