That means that for 10 months - from March until January 1990 - the state's highest tribunal could have six instead of seven justices, increasing the likelihood of tied votes and unresolved cases.
The forced vacancy is of further significance, say legal and political observers, because a fierce power struggle is being waged within the court. In part, the struggle is for a controlling majority should a certain highly charged case - that of Supreme Court Justice Rolf Larsen - reach the high court.
Larsen is under investigation by the state's Judicial Inquiry and Review Board on charges of improper conduct. He has denied the allegations and is seeking to have them dropped. If the case proceeds, the court could decide whether Larsen remains on the bench.
*
The forced-vacancy issue was one of two key aspects of the election opinion, handed down Tuesday, that intrigued observers last week. The opinion elaborated on the court's one-paragraph order throwing out two elections. The order came Sept. 27, just six weeks before those elections were scheduled to be held - an action that officials said was unprecedented in recent state history.
The opinion, written by Chief Justice Robert N. C. Nix Jr., said the Nov. 8 elections for Superior and Supreme Court violated the state constitution, which requires that judicial elections be held in odd-numbered years. Because Gov. Casey had scheduled the elections for this year, the court threw them out.
"It was a drastic remedy," said Neil T. O'Donnell, the attorney for Kate Ford Elliott, a Democratic Superior Court candidate. "Now, I will analyze any election from all legal avenues. You should always do it, but people don't. Candidates may begin to do it now."
The opinion ordered that all future judicial elections be conducted in odd- numbered years so that voters are not distracted by the presidential and gubernatorial campaigns in even years. (Municipal elections are held in Pennsylvania in odd-numbered years.)
The opinion also extended to January 1990 the terms of the two appointees - Stout on the Supreme Court and James R. Melinson on the Superior Court - who were to be replaced in January by candidates elected Nov. 8.
And in a footnote, the court said that if either appointee could not complete the term, that seat "must remain vacant until the new term commences."
Even Richard A. Sprague, the Philadelphia lawyer who in August initiated the suit that led to the decision, said he was "a little surprised" at the footnote ruling. "My position was that if there was a vacancy, it would be filled (by appointment) until the next election," he said last week. The court sided with Sprague on all other points.
So far, Casey's office has had little response to this apparent undercutting of the governor's power. "We're aware of what was said," said Richard D. Spiegelman, chief deputy general counsel for agency liaison. "And in March we'll have to make a decision. At this point, all you could do is go back to the Supreme Court and ask them to think harder about it."
Some in the legal community see the forced vacancy as paving the way for allowing retired justices to serve as senior justices on the high court - as advocated in a recent law-review article by Justice Nicholas P. Papadakos. Already, judges retiring from lower courts serve as senior judges, filling in on a per-diem basis to help with backlogs.
Thus, the forced vacancy might be an opening for Stout herself to become a senior justice and remain a voting presence.
It is also possible, however, that Stout could stay on the court as a full member. A case now working its way through the lower courts seeks to eliminate the mandatory retirement age, saying it is discriminatory. Sources say that the Supreme Court, citing urgency, is planning to reach down soon and take the case. If the requirement is eliminated before March, Stout could keep her seat.
Aside from the possibility of a forced vacancy, the other issue in last week's opinion that drew considerable comment was the treatment of the 1983 case, Cavanaugh v. Davis, upon which the governor relied when he set the election.
Nix's opinion found Cavanaugh severely flawed but did not expressly overrule it.
Said one Philadelphia lawyer: "I've never seen anything this extreme - criticizing the earlier decision but failing to say 'We're overruling
it.' "
One reason for not overruling it, some lawyers suggested, was that doing so could confuse the status of yet another Supreme Court justice - Stephen A. Zappala. Zappala was the beneficiary of the Cavanaugh ruling, which allowed a judicial election in an even-numbered year. His term expires in January 1993, meaning he must run for re-election in a now-verboten even-numbered year (1992).
Tuesday's opinion warned that to have allowed this year's elections to proceed would have instituted an unconstitutional cycle that would recur to infinity. Zappala's term presents that very problem. But the opinion did not address it.
"It's unclear what happens to Zappala's term," said one Harrisburg lawyer. "The opinion seemed to be leading up to saying that he couldn't run in an even year, but then it got fuzzy."
Another reason for not directly overruling Cavanaugh may have been that three of the justices who in 1983 voted in the majority in favor of Cavanaugh are still sitting on the Supreme Court. Overruling the case might have forced them to explain why they were reversing themselves now. But there were no concurring opinions - or dissents - on Tuesday.
"Not overruling Cavanaugh," said one lawyer, "was a way of saving face."
The opinion also failed to answer another question: What happens to the results of the April 26 primary election? About 1.8 million voters cast ballots and chose four nominees - Democrat Allen E. Ertel and Republican Anita B. Brody for Supreme Court and Republican Walter W. Cohen and Democrat Elliott for Superior.
Elliott, for one, said that since the opinion did not invalidate the primary, "If someone asks me, I'm going to say I'm my party's nominee."
She was on her way last week to the Erie County Democratic dinner. Indeed, she said, she was keeping all of her previously scheduled engagements and still supporting the rest of the Democratic ticket. She said that she was holding on to the money she had raised and that if she didn't run next year, she would return it.
What does she tell her supporters? "I say that the commitment I had in January when I entered this race - to try to go on Superior Court because I knew its problems and its potentials - hasn't changed just because the Supreme Court called off the election."
Sprague's final comment on the case - which obliterated the voters' primary preferences, negated two contests already printed on the Nov. 8 ballot, caused upheaval to the candidates and yielded a court decision that will have ramifications throughout the judicial system - was this:
"That's yesterday's news."
