Lead Opinion
In 2008, Appellee, Lawrence Farnese, Jr., then a candidate for state senator, filed a nomination petition to be on the Democratic Party’s primary election ballot. Pursuant to 25 P.S. § 2872.1(13), a nomination petition for that office must contain at least 500 signatures, and Appellee’s petition contained 1778 signatures. When the validity of the signatures was challenged on a number of grounds in the Commonwealth Court, Appellee withdrew 934 signatures on the advice of counsel, who agreed that the withdrawn signatures were invalid because they had not been procured in the actual presence of the circulators of the signature pages. During the course of litigation, Appellee stipulated that an additional 143 signatures were invalid. Ultimately, the Commonwealth Court denied the petition of objectors, Appellants Keith 01-kowski and Theresa A. Paylor, to set aside Appellee’s nomination petition, and they appealed to this Court.
On April 8, 2008, we entered a per curiam order on an expedited basis permitting Appellee to remain on the primary election ballot. In re Nomination Petition of Farnese,
As a matter of election law procedure, each circulator of a signature page contained in a candidate’s nomination petition must attach a separate affidavit declaring, among other things, that the signers thereto actually personally signed the petition with full knowledge of the contents of the petition.
In this matter, Appellants sought to establish pervasive fraud in the circulators’
Additionally, Appellee filed a motion in limine to preclude Appellants from presenting any evidence relating to the twenty-two signature pages that Appellee had withdrawn. Conversely, Appellants sought to present evidence of the withdrawn pages in support of their claims of fraud, because the circulators of many of the withdrawn pages were also the circulators of the non-withdrawn pages to which individual signature challenges were being raised. Indeed, Appellants raised a “global” challenge and asked the court to dismiss all remaining pages of signatures procured by any circulator of a withdrawn page. In support of this request, Appellants sought to call the circulators as witnesses to probe their awareness of, and adherence to, the elements of Section 909 of the Election Code as affirmed in their circulator affidavits attached to the pages of signatures. The court disallowed this proposed area of inquiry, and ultimately ruled that any evidence relating to the withdrawn pages would have been irrelevant to whether the circulator affidavits or signatures on the non-withdrawn pages were valid. Farnese II, supra at 278.
In the end, Appellants conceded they could not prevail if the court rejected their “global” challenge, i.e., Appellants conceded that if the court would not invalidate the remaining non-withdrawn signature pages that had been procured by the same circulators who had procured the withdrawn pages, Appellee would then have had 539 presumptively valid individual signatures. To state it another way, Appellants conceded that even if they won each of their remaining challenges unrelated to the propriety of the circulator affidavits attached to the signature pages, Appellee would still have had a sufficient number of presumptively valid signatures to remain on the ballot.
1. Did the Commonwealth Court err in ruling that evidence of an alleged pattern of fraud was irrelevant to the proceedings to set aside the nomination petition?
2. Did the Commonwealth Court err in ruling that evidence regarding the circulators’ procurement of the withdrawn signatures could not be used to invalidate the non-withdrawn signatures procured by them?
First, and foremost, we must disagree with the Commonwealth Court’s assessment here that allegations of a pattern of fraud are immaterial in a case involving objections to a nomination petition. Significantly, in In re Nomination Petition of Nader,
... this signature gathering process was the most deceitful and fraudulent exercise ever perpetrated upon this Court. The conduct of the Candidates, through their representatives (not their attorneys), shocks the conscience of the Court. In reviewing signatures, it became apparent that in addition to signing names such as “Mickey Mouse,” “Fred Flintstone,” “John Kerry,” and the ubiquitous “Ralph Nader,” there were thousands of names that were created at random and then randomly assigned either existent or nonexistent addresses by the circulators.
Id. at 19 (aff'd, In re Nomination Paper of Nader,
Where, as here, a candidate for office has agreed that 60.5 % of the signatures contained in his nomination petition are invalid, and the objectors to the petition have asserted fraud in the signature procurement process and are prepared to support those allegations with evidence, we cannot say, in light of Nader, supra, that the evidence would be immaterial to the disposition of the petition. Significantly,
While prudent candidates for office routinely procure more signatures on their nomination petitions than the number of signatures required by the Election Code, a candidate’s agreement that 60.5 % of the signatures that he or she procured are invalid should raise red flags for any court evaluating the process by which any and all of the signatures were procured. Our observation of this troubling circumstance in the instant matter leads to the truly dispositive question here: whether the Commonwealth Court properly denied Appellants’ request to invalidate the signatures that Appellee had not withdrawn on the basis that the signature petitions on which they appeared had been circulated by the same persons who circulated the petitions that Appellee had withdrawn.
On April 18, 2008, ten days after we entered the per curiam order in this case, we also entered a plurality per curiam order in a case that presented similar facts. In In re Payton,
Justice Saylor, with whom Justice Todd and this writer agreed, went on to state his disagreement with the utilization of “a
Here, although Appellants’ brief to this Court includes numerous allegations that the tactics of the circulators to procure the allegedly illegitimate signatures were known to the candidate and the campaign manager, Appellants did not make this specific objection in their petition to set aside the nomination petition. Although the candidate himself was the circulator of six separate signature pages, none of those pages was withdrawn, and none of the signatures on those pages was stipulated to as invalid. Additionally, the rationale proposed by Appellants for the striking of signatures contained on the non-withdrawn pages procured by the circulators of the withdrawn pages conceded that a number of valid signatures would be stricken for the sake of punishing the fraud committed by the circulators.
Significantly, the case law of this Commonwealth that can be read to support the proposition that a false affidavit contained in a nomination petition may be egregious enough to void the petition altogether and remove the candidate from the ballot, applies to intentional and knowing falsehoods affirmed by the candidate personally that are designed to deceive the electorate. See In re Nomination of Driscoll,
Notes
. Our order affirmed the Commonwealth Court’s denial of Appellants’ petition to set aside Appellee’s nomination petition, without prejudice to Appellants’ right to seek review of any future final order imposing costs. We remanded with directions for the Commonwealth Court to explain its rationale if it chose to impose costs. On remand, the court imposed costs and Appellants filed an appeal from the imposition of costs at No. 13 EAP 2008. We reversed on the basis that the facts did not support a finding that an award of costs was just. In re Nomination Petition of Farnese,
. Section 909 of the Election Code requires that each signature sheet shall have appended thereto the affidavit of the circulator of each sheet, and this Court has recognized that the language in Section 909, 25 P.S. § 2869, unambiguously requires that the circulator affirming the petition be aware of five criteria about each individual signer: (1) the signer signed the petition with full knowledge of its contents; (2) the signer’s address is correct; (3) the signer resides in the county in the affidavit; (4) the signer signed the petition on the date set forth; and (5) to the best of the circulator's knowledge and belief, the signer was a qualified elector and a member of the party claimed on the petition. In re Nomination Petition of Flaherty,
. Although the report was not admitted as substantive evidence, it is of record. The court admitted the report "to make the record ... because we have not had testimony in certain areas, [so] that the Supreme Court knows that [Appellants have] not waived those issues and that they’re preserved for that purpose and that purpose alone.” Notes of Testimony ("N.T.”), Hearing, 3/7/08, at 67-68.
. Appellants maintained that 324 of the 701 signatures remaining after Appellee’s stipulations and withdrawals (1778 - 934 - 143 = 701) were invalid, and that 162 of those 324 signatures were invalid for reasons other than that the circulator of the signature page had also circulated a signature page that had been withdrawn. Thus, given the court's ruling, even if Appellants had prevailed on each of those unrelated challenges, Appellee still would have had a requisite number of signatures (701 - 162 = 539). We note that the Commonwealth Court calculated the total number of remaining presumptively valid signatures using a different formula and arrived at the number of 532. The difference is immaterial, as both resulting totals are greater than the amount necessary to support the petition, and Appellants conceded they could not prevail under the circumstances.
. Although the main holding in the case, that the recall provisions in the Philadelphia Home Rule Charter are unconstitutional, represented a plurality of the Court, the proposition cited here commanded a majority view.
. Counsel for Appellants argued at the hearing "I just want to note that part of our argument [is] the broad public policy ... that this kind of conduct has got to stop, and the only way I know how to stop it is a court ruling penalizing circulators who provide bad affidavits from then being rewarded with other petitions where arguably they are good.” N.T., supra at 33 (emphasis added).
. The Chief Justice states in his concurring opinion that we stray significantly from the parties' arguments, and suggests that the objectors here presented a "single narrow theory.” (Castille, C.J., concurring, Op. at 592-93,
Concurrence Opinion
concurring.
This case was decided on April 8, 2008, by per curiam order, with a notation that an opinion would follow. I write separately primarily to explain my own reasons for supporting our prior order because they differ from the expression and focus of the Opinion in Support of Per Curiam Order (“OIS”); and I write because I respectfully disagree with several aspects of Mr. Justice McCaffery’s expression.
I.
We issue “opinion to follow” mandates very rarely, generally in matters where an immediate decision is required, where there is insufficient time to fashion a precedential expression, and where the issue is important enough, or difficult enough, that the Court realizes that an explanation of the original mandate is a wise course. Election appeals, and other emergency filings where swift action is required, are the most common situations where this practice is employed. I have previously addressed some of the difficulties that are unique to the expedited decisions that issue in election appeals, and have encouraged efficiencies in the courts below to ensure a better prospect for reasoned, timely decisions. See In re Fitzpatrick,
There are inherent complications in the “opinion to follow” scenario. First, Justices may agree on the decisional mandate but for different reasons, making it more difficult to fashion a later majority expression in support of the already-rendered order.
With these realities borne of experience in mind, I respectfully cannot join Justice McCaffery’s present explanation of our April 2008 mandate. As noted, I write first to explain the distinct reasons why I supported and continue to support affirmance of the Commonwealth Court’s decision in this case, and second, to address briefly specific concerns regarding the OIS reasoning.
II.
On February 11, 2008, objectors Keith Olkowski and Theresa A. Paylor filed an action in the original jurisdiction of the Commonwealth Court to set aside candidate Lawrence M. Farnese, Jr.’s nomination petition pursuant to Section 977 of the Election Code, 25 P.S. § 2937. The objectors claimed “at most 278” of the 1,778 signatures submitted by the candidate were valid and, as a result, the candidate failed to meet the statutory requirement of 500 valid signatures for appearing on the ballot. 25 P.S. § 2872.1(13). According to the objectors, (1) individual signatures had to be stricken because they were invalid on various grounds; (2) pages of signatures had to be stricken because they contained false or invalid circulator affidavits and notarization; and (3) other pages of signatures not suffering from the first two defects had to be stricken because they were gathered by circulators who had submitted invalid affidavits on other pages, or were notarized by a notary who had falsely notarized other pages. The third argument was premised on the trial court accepting a novel “pattern of fraud” or “false-in-one, false-in-all” theory. Finally, in the alternative, the objectors suggested that the entire nomination petition had to be stricken on the ground of “pervasive fraud.”
After receiving the objectors’ petition, the Commonwealth Court, per the Honorable Rochelle S. Friedman, issued an expedited case management order and set a deadline extended to March 5, 2008, for submitting stipulations, expert reports, and witness lists. On March 5 and 6, 2008, the parties informed the court that the candidate had withdrawn twenty-two signature pages (for a total of 934 signatures) and that the objectors had abandoned two full-page challenges. Via the same filings, the parties stipulated to the validity or
To explain the purported reservation of right, the objectors essentially made a “pattern of fraud” or “false-in-one, false-in-all” argument and asked the court to strike as invalid every signature page submitted by any circulator who had a page voluntarily withdrawn by the candidate. Similarly, the objectors argued that all the signature pages notarized by Jonathan J. Oriole had to be stricken because Mr. Oriole had falsely notarized a withdrawn page (page 33). Finally, the objectors expressed their intention to call circulators of withdrawn pages as witnesses at the March 7, 2008, hearing. According to the objectors, the circulators would be examined to reveal whether they “lied under oath” and also regarding “their understanding of the basic criteria of their oath and obligations as a circulator as defined by [Section] 909 of the Election Code[, 25 P.S. § 2869].” The objectors argued that if the circulator did not understand or follow the legal criteria, s/he lied under oath and all of that circulator’s affidavits (and signature pages) had to be stricken as invalid. In response, the candidate filed motions in limine to preclude the objectors from introducing any withdrawn signature pages into evidence, and from calling individual circulators as witnesses to impeach their credibility regarding the circulator affidavit oaths on non-withdrawn signature pages.
During the hearing, the objectors conceded that the success of their challenge to the candidate’s nomination petition depended solely on a favorable ruling by Judge Friedman regarding the candidate’s motions in limine and, implicitly, her acceptance of the objectors’ “pattern of fraud” or “false-in-one, false-in-all” theory. The objectors relied on their pattern of fraud challenge to strike the candidate’s name from the ballot, as they otherwise lacked sufficient individual signature objections. Judge Friedman entertained argument on the objectors’ theory and then granted the candidate’s motions in limine, thus precluding evidence or questioning relating to the withdrawn pages, whether offered as direct proof or for impeachment purposes. According to the court’s later opinion, the objectors’ evidence relating to the withdrawn pages was “irrelevant to whether the [cjirculator [affidavits or signatures on the non-withdrawn pages were valid” and was, for that reason, inadmissible to prove that the candidate lacked sufficient valid signatures. In re Nomination Petition of Farnese,
The court’s explanation of its ruling was solidly grounded in existing law. The court explained that it rejected the objectors’ evidence proffer because the underlying theory on which it was based — the “pattern of fraud” or “false-in-one, false-in-all” argument — had no support in the Election Code or case-law. Indeed, the court noted that the Election Code required each signature page to be considered individually, while case-law suggested that a circulator affidavit could at the same time be false with respect to one or even a significant percentage (e.g., 20%) of signatures but true with respect to the remaining signatures on the same page. Thus, the court reasoned, “admittedly valid signatures on one page” could not be stricken “based on a defective [circulator [affidavit on another page.” Id. (citing 25 P.S. §§ 2936, 2869, In re Pittsburgh Home Rule Charter,
Further, the court explained that it rejected the objectors’ request to use the withdrawn pages for impeaching the credibility of potential witnesses, i.e., circulators of both withdrawn and non-withdrawn pages, because, inter alia, “it would have been improper for [ojbjectors to use a witness’s alleged bad act with respect to a withdrawn page to prove that the witness acted in the same manner with respect to a non-withdrawn page.” Id. at 278 (citing, inter alia, Pa.R.E. 404(b)(1) (evidence of bad acts is not admissible to prove character of person in order to show action in conformity with those bad acts)). Ultimately, the court denied the petition to set aside the candidate’s nomination petition on the basis of the objectors’ concession that they could not prevail without a favorable ruling by the court on the “false-in-one, false-in-aU” theory and the admissibility of evidence regarding the withdrawn pages in support of that theory. Id. at 278-79.
On appeal to this Court, the objectors posed two questions:
1. Did Judge Friedman err in not dismissing all Nominating Petition [sic] of circulators and striking the Nomination Petition of Mr. Farnese from the primary election ballot when the circulators had submitted many Nominating Petitions with false and fraudulent Circulators’ Affidavits and false signatures, which when challenged were withdrawn? Did Judge Friedman err in not allowing [objectors’ lawyer] to present any evidence demonstrating a serious pattern of fraud and false Affidavits by the same circulators and not strike all the Nominating Petitions? Should all of the Nominating Petitions have been stricken due to the false notary, the extensive pattern of fraud and the false Affidavits, particularly when done with the knowledge and consent of the candidate and campaign manager?
2. Did Judge Friedman err in not allowing [objectors’ lawyer] to present and question all the circulators on the false and withdrawn Nominating Petitions and further question them on their knowledge of the criteria and requirements of a Circulator’s circulation and Affidavit?
Although the questions are argumentative and conflated, they are essentially restatements of the objectors’ position below: ie., the objectors challenge the Commonwealth Court’s specific evidentiary rulings and its rejection of the “pattern of fraud” or “false-in-one, false-in-all” theory upon which their evidentiary proffer was made.
In my view, the objectors’ claims properly failed for several reasons. First, when this appeal was decided, this Court had not embraced any form of the objectors’
Second, adoption and retroactive application of the objectors’ novel “pattern of fraud” or “false-in-one, false-in-all” theory to this case would have been extremely disruptive and unfair. Assuming the objectors could make out their case upon remand, the consequence would have been to strike the candidate from the ballot. But, there was nothing in the governing statute or existing caselaw to put political candidates on notice that otherwise valid signatures, and an otherwise valid nomination petition, could be stricken, and the candidate removed from the ballot, premised on the objectors’ extrapolation theory. Candidates for office in Pennsylvania commonly collect signatures well in excess of the minimum required, recognizing that some signatures may be invalid, precisely in the hope of avoiding challenges. See, e.g., In re Nomination Petition of Morrison-Wesley,
Finally, our time for consideration was constrained, as in all election cases, and the governing presumption is in favor of ballot access. See Flaherty,
III.
The OIS goes much farther than the analysis above, appearing to approve a form of the objectors’ “pattern of fraud” theory, but as described in Mr. Justice Saylor’s Concurring Statement in In re Payton,
The excursion into this area is unnecessary. First, the Payton concurrence did not exist when we decided this case, and we did not affirm because we believed we were operating under, but distinguishing, the future and non-binding Payton concurrence. Second, as I further develop below, the parties did not argue this theory to us. And, third, since the OIS ultimately holds that the objectors waived the theory it outlines sua sponte, its excursion is pure obiter dictum. In short, rather than explaining the grounds for our decision in 2008, the OIS would fashion a prospective new rule.
As a jurisprudential matter, I have no fixed objection to the Court attempting to square this pre-Payton decision with the Payton concurrence, or with a more global view of the relevant issues, as the Court comes to a better understanding of their complexities. The value in such an effort is to provide broader guidance. Also, as I have outlined above, as a general matter a prospective rule can be less disruptive in the election arena. (Unfortunately, because the OIS ignores issues raised by the objectors in favor of drawing on the Payton concurrence, the OIS outlines a proposed prospective rule unrelated to the present appeal and through a waiver finding, which also raises the problem that the entire effort is dicta.) But, I believe our decisional explanation should and can be more closely tied to the arguments that were actually presented by the parties.
IV.
In addition to explaining my own distinct reasons for supporting the Court’s prior mandate, I also write briefly to note my disagreement with several aspects of the OIS expression. In my view, the OIS strays significantly from the parties’ arguments, the factual record, and the law.
First, the objectors here presented a single narrow theory: non-withdrawn pages of a certain circulator or notary must be stricken for fraud based solely on evidence that the candidate had withdrawn a page signed by the circulator or notary. The OIS does not pass in any clear fashion upon the validity of the objectors’ theory. Instead, the OIS ventures into issues of candidate impropriety, which was not a basis for the objectors’ appeal to this Court.
Second, the objectors argued their extrapolation theory on the assumption that the withdrawn pages were part of a “pattern of fraud,” that is, they were fraudulent. The OIS fails to correct this assumption, apparently conflating withdrawn signatures with invalid signatures and then making the leap to fraud. But, withdrawn signatures are not of-record. Deeming merely withdrawn signatures to be invalid, as the OIS does, is contrary to the Election Code’s presumption of signature validity and effectively — and impermissibly — shifts the burden of proof from the objectors to the candidate. See 25 P.S. § 2937. Also, the policy of deeming
But, even assuming that merely withdrawn signatures can be deemed defective, there is no support in the record for concluding that the withdrawn signatures in this case were fraudulent. See OIS at 9 (“we now hold that allegations and evidence of fraud may be material to the determination of the validity of a nomination petition”) (emphasis added).
Finally, I respectfully disagree with the OIS that Nader, Payton, and Citizens Committee to Recall Rizzo v. Bd. of Elections,
. This case, which involved election for a state office, is before the Court on direct appeal from a single-judge order of the Commonwealth Court. 42 Pa.C.S. § 723(a) (Supreme Court has exclusive jurisdiction over appeals from final orders entered by Commonwealth Court in matters commenced in original jurisdiction of that court); 42 Pa.C.S. § 764 (Commonwealth Court has exclusive original jurisdiction of all election matters related to "[s]tatewide office”); In re Vidmer,
. Although the objectors repeatedly suggested striking the entire nomination petition in the interest of maintaining "the probity and integrity” of the electoral process, they failed to develop any relevant issues of law on this point. Instead, the objectors focused primarily on the pattern of fraud claim with respect to the candidate's circulators and notary.
. The objectors also raised a third question concerning an award of costs, which is not relevant to this appeal.
. In a separate concurrence, Mr. Justice Eakin questions the necessity of the exchange between the authors of the different expressions in this case, suggesting that it is for the General Assembly to legitimize the "false-in-one, false-in-all” theory as a ground for striking the nomination petitions of electoral candidates. But, as posed, the objectors’ claim is a theory of evidence fully within this Court’s bailiwick. In my view, a proper explanation for our decision requires close attention to the parties’ actual arguments and the evidentiary theory as posed.
. It is unclear whether this prospective rule fashioned by the OIS means that "allegations and evidence of fraud,” presumably with respect to the withdrawn signatures, alone prove that otherwise unchallenged signatures are fraudulent, as the objectors claim. If, indeed, that is the prospective rule that the OIS would adopt, I note that it deeply discounts the value of those otherwise unchallenged signatures and of those respective "voters' right to elect the candidate of their choice.” In re Nomination Petition of Driscoll,
Concurrence Opinion
concurring.
I agree with the central propositions advanced by the Opinion in Support of Per Curiam Order (“OIS”), that evidence of widespread fraud in the collection of signatures may be relevant in an election challenge, see In re Payton,
First, it should be noted that, in the Nader matter, after the Commonwealth Court completed its review, it determined that the candidate lacked sufficient signatures to obtain ballot access. See Nader,
Additionally, there is no indication in Nader that the candidate agreed that a substantial percentage of signatures were not obtained in accordance with law. Accordingly, I cannot agree that Nader supports the principle that, where a candidate agrees that a large percentage of the signatures are invalid, evidence of fraud in the signature-gathering process is relevant beyond the actual signatures being challenged as fraudulent. See OIS, slip op. at 6 (“Where, as here, a candidate for office has agreed that 60.5% of the signatures contained in his nomination petition are invalid, and the objectors to the petition have asserted fraud in the signature procurement process and are prepared to support those allegations with evidence, we cannot say, in light of Nader, ... that the evidence would be immaterial to the disposition of the petition.”). In short, I believe that Nader has little relevance to the present case.
To me, the primary issue in Nader pertained to whether the term “qualified elector” subsumed a voter registration requirement, because if no such requirement existed, then the candidate would have had enough signatures for ballot access. See Nader,
In the consolidated findings, opinion and order, the Commonwealth Court also indicated that the signatures under review were primarily the result of widespread, systemic fraudulent conduct on the part the individuals gathering them. See [Nader,865 A.2d at 18 ] (stating that “this signature gathering process was the most deceitful and fraudulent exercise ever perpetrated upon this Court”). A review of the tables and exhibits attached to the order, however, suggest that the problem was of a more limited scale (for example, 687 signatures out of 51,273 reviewed— or approximately 1.3% of the signatures — were rejected on the basis of having been forged). Moreover, the Commonwealth Court cited no evidence that the candidates were specifically aware of fraud or misrepresentation at the time of their submissions, and the candidates note — and the objectors do not dispute — that when they became aware of any fraudulent conduct connected with specific signatures, they voluntarily withdrew those signatures from consideration.
Concurrence Opinion
concurring.
My colleagues agree that more than 500 signatures remained unaffected by appellants’ challenge. Farnese, therefore, was properly retained on the ballot. I agree. Beyond that, I refrain from engaging in any discussion concerning the objectors’ extrapolation theory.
The principles on which this matter turns are not unique to election law — the case turns on principles of evidence and not on recitation of electoral law distinctions. Appellants contend there was so much fraud in the withdrawn and disallowed signatures that one must conclude there was fraud in the remaining ones. The court below deemed fraud irrelevant, which is reasonable if one merely counts the signatures not assailed individually, to see if they total 500.
Fraud, however, is relevant, though not in the “global sense” appellants would have. When one circulator is found to have committed significant fraud, this may affect the finder of fact’s assessment of the credibility of other acts or affidavits by the same circulator in the same election. Conversely, there may be reasons not to disregard or reject such other acts or affidavits. It is largely a question of fact, which in the end is not for this Court to second guess, so long as the record and reasoning below support the finding. See In re Nomination of Flaherty,
Furthermore, I continue to agree that a “false in one, false in all” principle should be rejected in these cases, see, e.g., In re Payton,
I therefore concur in the result.