The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petition of :
Joe Gale, Candidate for :
Lieutenant Governor :
: No. 112 M.D. 2018
Zachary Brillhart, Michael A. Cibik, : Heard: March 16, 2018
Ellen Cox, Joel Sears, and :
Joshua J. Young, Objectors :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
OPINION BY JUDGE BROBSON FILED: March 20, 2018
Before this Court is a petition filed by Zachary Brillhart, Michael A.
Cibik, Ellen Cox, Joel Sears, and Joshua J. Young (Objectors) to set aside the
nomination petitions of Joe Gale (Candidate) as a Republican candidate for the office
of Lieutenant Governor. For the reasons set forth below, the Court will grant the
petition to set aside.
Candidate seeks to appear on the ballot in the Republican Primary
Election scheduled for May 15, 2018 (2018 Republican Primary). Candidate’s
affidavit, filed with Candidate’s nomination petitions, contains a signed and sworn
statement by Candidate that he is eligible for the office of Lieutenant Governor.
Objectors challenge Candidate’s affidavit on the basis that Candidate is not eligible
under Article IV, Section 5 of the Pennsylvania Constitution, which provides:
No person shall be eligible to the office of Governor,
Lieutenant Governor or Attorney General except a citizen
of the United States, who shall have attained the age of 30
years, and have been seven years next preceding his
election an inhabitant of this Commonwealth, unless he
shall have been absent on the public business of the United
States or of this Commonwealth. No person shall be
eligible to the office of Attorney General except a member
of the bar of the Supreme Court of Pennsylvania.
(Emphasis added.) Specifically, Objectors aver that Candidate was born on
March 24, 1989, and is, therefore, currently 28 years old. Objectors correctly aver
that the 2018 Republican Primary is scheduled for May 15, 2018; the General
Election is scheduled for November 6, 2018 (General Election); and the Lieutenant
Governor’s term of office begins on January 15, 2019.1 Objectors further aver that
on each of the above relevant dates Candidate will be 29 years of age, and Candidate
will not attain the age of 30 years until March 24, 2019.2
On March 16, 2018, the Court conducted a hearing on both this matter
and the petition to set aside Candidate’s nomination petitions filed by Sklaroff.
During the hearing, the Court admitted into evidence, without objection, four
exhibits that Objectors offered. One of the exhibits is titled Joint Stipulations and is
executed by counsel for Objectors and Candidate. No additional evidence was
offered or admitted at the hearing. The Joint Stipulation confirms the material facts
alleged by Objectors regarding Candidate’s age and date of birth. There is, therefore,
no dispute that Candidate will not have attained 30 years of age prior to the 2018
Republican Primary Election, the 2018 General Election, or January 15, 2019, the
date on which the next term of the Lieutenant Governor begins under the
Pennsylvania Constitution. Candidate, nevertheless, maintains that he is “eligible”
1
Pursuant to Article IV, Sections 3 and 4 of the Pennsylvania Constitution, the Lieutenant
Governor’s term of office begins on the third Tuesday of January after the General Election. Thus,
the next term of office for the position of Lieutenant Governor begins on January 15, 2019.
2
Robert B. Sklaroff (Sklaroff) similarly filed a petition to set aside Candidate’s nomination
petitions, challenging Candidate’s eligibility on the basis of age, which is docketed before this
Court as In Re: Nomination Petition of Joseph C. Gale, No. 116 M.D. 2018.
2
to run for Lieutenant Governor, but if successful will be “disabled” due to age from
assuming the office until he attains the age of 30 years. He, therefore, urges the
Court to deny the petition to set aside.
Section 910(d) of the Pennsylvania Election Code3 requires that a
candidate for state office must file an affidavit with the candidate’s nomination
petitions, stating, in relevant part, that the candidate “is eligible for such office.”
Article IV, Section 5 of the Pennsylvania Constitution provides, in part, that “[n]o
person shall be eligible to the office of . . . Lieutenant Governor . . . except a citizen
of the United States, who shall have attained the age of 30 years.” (Emphasis added.)
With respect to interpreting provisions of the Pennsylvania Constitution, the
Pennsylvania Supreme Court had directed:
In a case . . . which calls upon the court to construe
an Article of the Pennsylvania Constitution, the
fundamental rule of construction which guides us is that
the Constitution’s language controls and must be
interpreted in its popular sense, as understood by the
people when they voted on its adoption.
Ieropoli v. AC&S Corp., 842 A.2d 919, 925 (Pa. 2004).
In this Court’s assessment, the language of the age requirement in the
Pennsylvania Constitution for Lieutenant Governor could not be clearer. To be
Lieutenant Governor, a person must “have attained the age of 30 years.” This is an
example of the use of the future perfect verb tense. Its use denotes an action that
will be completed before a certain time in the future. The Gregg Reference
Manual ¶ 1033(c), at p. 222 (7th ed. 1993). The Court believes that the “certain time
in the future” is the date on which the next ensuing term for Lieutenant Governor
begins following the General Election. The Court, however, need not definitively
3
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2870(d).
3
rule on whether Candidate must have attained the age of 30 years at the time of the
2018 Republican Primary, the General Election, or January 15, 2019, the beginning
of the next term for Lieutenant Governor under the Pennsylvania Constitution. Here,
the Candidate is not now nor will he “have attained” the age of 30 years at any point
prior to January 15, 2019. Moreover, the Court refuses to accept a construction that
makes the certain time in the future flexible depending on the actual age and
birthdate of the candidate. Such could not have been the intent of the people who
voted in favor of the age threshold, a point Candidate’s counsel conceded at the
hearing. For purposes of this case, it is adequate to hold that in order to be eligible
to hold the office of Lieutenant Governor, the candidate must have attained the age
of 30 years by the third Tuesday of January after the General Election, at the latest.
Our Supreme Court’s decision in Commonwealth ex. rel. Kelley v.
Keiser, 16 A.2d 307 (Pa. 1940) (Keiser), supports this construction of the age
requirement. In the context of a quo warranto action,4 the Supreme Court in Keiser
considered whether a duly-elected magistrate must be removed from office because
he had not reached the prescribed age when his term of office began and did not
attain that age until five days later, when he took the oath and assumed the duties of
the office. With regard to the question of when a person elected or appointed to
office must satisfy a constitutional or statutory requirement relating to qualifications
for that office, the Supreme Court explained:5
The question as to when a person elected or
appointed to office must satisfy a constitutional or
statutory requirement relating to qualifications is quite
4
Quo warranto is an action to oust a person from public office. See Spykerman v. Levy,
421 A.2d 641 (Pa. 1980).
5
On appeal, the Supreme Court in Keiser adopted and republished as its own the opinion
of the President Judge of the Court of Common Pleas of Philadelphia.
4
confused, both in this state and elsewhere. Upon this
subject there seem to be two principal lines of authority:
one holding that the qualification is determined as of the
date of election, and the other, as of the commencement of
the term. There are also a few authorities holding that the
officer need not be qualified prior to taking the oath of
office, while other cases hold that it is sufficient if the
qualification exists at the time the proceeding[s] are
brought to test his title. While these apparently conflicting
cases may not be completely reconcilable, we think that
they can in the main be harmonized by classifying them
according to the nature of the qualification and the
character of the office involved. In the early case of
Commonwealth v. Pyle, 18 Pa. 519 [(1852)], these cases
were classified in the following manner, at page 521:
“Where the constitution or a statute declares that certain
disqualifications shall render a person ineligible to an
office, he must get rid of his disqualification before he is
appointed or elected. . . . But if the law merely forbids him
to hold or enjoy the office, or exercise its duties, it is
sufficient if he qualifies himself before he is sworn.”
Subsequent cases have more precisely defined the
latter class and the test has been declared to be whether
the officer is qualified prior to the commencement of his
term, rather than before he is sworn. Thus it was stated in
Mosby v. Armstrong, . . . 139 A. 151[ (Pa. 1927)], at page
153: “where ‘the law merely forbids’ one ‘to hold or
enjoy’ an office . . . , it is sufficient if the candidate
becomes qualified before the time arrives for him to
assume the post in question.”
In 88 A.L.R. 812, it is noted that great conflict of
opinion exists on this problem, but that, even where
eligibility is not determined as of the date of election,
courts “are inclined to hold that removal of
disqualifications before the time fixed for commencement
of the term of office qualifies the incumbent.” A number
of Pennsylvania decisions are there cited in support of this
proposition.
A few cases in this state hold that the
disqualification may be removed after the commencement
of the term, but these all involve the holding of
incompatible offices under circumstances where the
5
constitution or statute failed to provide a penalty therefor.
In them, the court held that, if the office holder makes a
choice between the incompatible offices and cna [sic] so
answer at the time of quo warranto proceedings, he may
continue in the office he has chosen. De
Turk v. Commonwealth, . . . 18 A. 757[ (Pa. 1889)];
Commonwealth v. Kelly, . . . 100 A. 272[ (Pa. 1917)];
Commonwealth v. Snyder, . . . 144 A. 748[ (Pa. 1929)].
These cases dealing with incompatible offices are clearly
distinguishable from cases involving such fundamental a
priori qualifications as age, citizenship, domicile and the
like. The former involve conditions of holding the office,
the latter prerequisites for assuming it. Thus, in the case
of age and similar qualifications, it was held in Spitzer v.
Martin, 1917, 130 Md. 428, 100 A. 739, that this
qualification must be possessed at the date of election.
Keiser, 16 A.2d at 310-11 (emphasis added). In affirming the judgment of ouster
entered by the court of common pleas, our Supreme Court in Keiser further
explained:
From the standpoint of the public interest in the
continuity of office, it is equally important that an elected
officer shall be eligible to hold the office from the
beginning of its term. Circumstances such as illness,
unavoidable absence at the beginning of the term and the
like, may excuse his entering upon the duties of the office
immediately, so that he may not be removable for failing
to do so. But he cannot require that an office, the public
need for which is sufficiently evidenced by its creation and
existence, shall remain vacant for any length of time while
he is qualifying himself to assume it. This is not the case
of an office with an indefinite term which may begin at
any time, and in which, therefore, it is sufficient if the
disqualification has been removed when the writ issues to
test the incumbent’s right to hold it. The term of a
magistrate is fixed, with a definite beginning and ending;
and we therefore conclude that the respondent, having
lacked the required age of 35 years when his term began,
is ineligible to hold the office to which he was elected, and
into which he is now unlawfully intruding.
Id. at 312 (emphasis added).
6
The Court acknowledges that the Supreme Court in Keiser was not
considering the eligibility requirements for the office of Lieutenant Governor.
Regardless, the Supreme Court made clear that there are two different tests that may
be applied under different circumstances to determine whether a candidate or
candidate-elect is qualified for an office—one requires the candidate or
candidate-elect to be qualified at the time of election and the other at the beginning
of the term of office. Our Supreme Court in Keiser specifically rejected the argument
that a candidate or candidate-elect who has not attained the age of eligibility for an
office may simply wait to assume the office until the non-eligibility has passed.
Here, it is undisputed that Candidate will not have attained the required age as of
any of the relevant dates. Thus, it is clear to this Court, under both the Pennsylvania
Constitution and our Supreme Court’s rationale in Keiser, that Candidate does not
meet the eligibility requirements for Lieutenant Governor, regardless of whether age
is determined at the time of the election or at the time when the Lieutenant Governor
term begins, because Candidate will be 29 years of age on those dates. Nothing in
the Pennsylvania Constitution or Keiser allows a candidate to assume an office at a
date after the start of the term of the office as a result of ineligibility due to age.
Candidate attempts to bolster his eligibility to run for the office of
Lieutenant Governor by directing this Court to Article IV, Section 14 of the
Pennsylvania Constitution. This section, titled “Vacancy in Office of Lieutenant
Governor,” provides, in relevant part:
In case of the death, conviction on impeachment,
failure to qualify or resignation of the Lieutenant
Governor, or in case he should become Governor under
the preceding section, the President pro tempore of the
Senate shall become Lieutenant Governor for the
remainder of the term. In case of the disability of the
Lieutenant Governor, the powers, duties and emoluments
7
of the office shall devolve upon the President pro tempore
of the Senate until the disability is removed. . . .
Pa. Const., art. IV, § 14 (emphasis added). Candidate contends that the second
sentence, relating to “disability of the Lieutenant Governor,” contemplates his
situation and provides for a temporary solution where a successful candidate for the
office is not yet of age to assume the office of Lieutenant Governor. In doing so,
Candidate likens his lack of attaining the constitutionally-required age at the
inception of the term of the Lieutenant Governor to a “disability,” such that the
President pro tempore of the Senate would assume the powers, duties and
emoluments of the office until the disability is removed—i.e., until Candidate attains
the age of 30 years. Candidate further contends that under the second sentence of
the section, once Candidate attains the age of 30 years, his “disability” would be
removed and he would be able to assume the office of Lieutenant Governor.
Candidate’s reliance on the second sentence of Article IV, Section 14 is
misplaced. The word “disability” is generally defined as “lack of physical,
intellectual or emotional capacity or fitness,” whereas the word “qualify” is
generally defined as “to measure up to or meet a set standard or requirement.”
Webster’s Third New International Dictionary 642, 1858 (1993). Here, if Candidate
is allowed to remain on the ballot and wins the election, on January 15, 2019, he will
without question fail to “meet a set standard or requirement” that he “shall have
attained the age of 30 years.” Based on the ordinary definitions of the terms
“disability” and “qualify,”6 as between the two, Candidate will not be qualified to
6
In characterizing his ineligibility due to age as a “disability,” Candidate cherry picks a
single sentence from Keiser, which provides:
To permit an ineligible candidate-elect to delay entering upon the duties of his
office after his term begins, until the disability is removed by time or at his own
8
hold the office of Lieutenant Governor. A lack of qualification of a successful
candidate would trigger the first sentence of Article IV, Section 14 of the
Pennsylvania Constitution, not the second. Under that provision, the President pro
tempore does not merely assume the duties of Lieutenant Governor, he becomes the
Lieutenant Governor for the duration of the term. Accordingly, if Candidate prevails
in the upcoming General Election, the President pro tempore of the Pennsylvania
Senate will be the Commonwealth’s next Lieutenant Governor, and Candidate will
not be able to displace him in that office upon reaching the age of 30 years.
Accordingly, the Court grants Objectors’ petition to set aside
Candidate’s nomination petitions.7
P. KEVIN BROBSON, Judge
caprice, would work a species of fraud upon the electorate, and pro tanto create an
interregnum in office incompatible with that continuity in government which is
essential to its proper and efficient functioning.
Keiser, 16 A.2d at 312 (emphasis added). In addition to this single use of the term “disability,”
the Supreme Court frequently throughout its opinion references age as a “qualification” for
determining eligibility and uses the word “disqualification” as opposed to “disability.” Moreover,
as Candidate points out, Keiser involved a minimum age requirement imposed by statute, not
interpretation and application of a constitutional provision relating to eligibility and qualification
to hold the office of Lieutenant Governor. Thus, Candidate’s reliance on Keiser as establishing
his youth as a “disability” as opposed to a disqualification or issue of eligibility is misplaced.
7
The Court sees nothing in federal case law or the United States Constitution that requires
a different result, despite Candidate’s contention that federal case law supports his position.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petition of :
Joe Gale, Candidate for :
Lieutenant Governor :
: No. 112 M.D. 2018
Zachary Brillhart, Michael A. Cibik, :
Ellen Cox, Joel Sears, and :
Joshua J. Young, Objectors :
ORDER
AND NOW, this 20th day of March, 2018, upon consideration of the
petition filed by Zachary Brillhart, Michael A. Cibik, Ellen Cox, Joel Sears, and
Joshua J. Young (Objectors) to set aside the nomination petitions of Joe Gale
(Candidate) as a Republican candidate for the office of Lieutenant Governor, the
Court having concluded that Candidate does not meet the eligibility requirements
for the office of Lieutenant Governor, it is hereby ordered:
1. The petition to set aside the nomination petitions of Joe Gale as
Republican Candidate for the office of Lieutenant Governor is GRANTED.
2. The Secretary of the Commonwealth is directed to REMOVE the
name of Joe Gale as a Republican candidate for the office of Lieutenant Governor
from the ballot for the Republican Primary to be held on May 15, 2018.
3. The Chief Clerk shall notify the parties hereto and their counsel
of this order and also certify a copy hereof to the Secretary of the Commonwealth.
P. KEVIN BROBSON, Judge