Costa v. Ward
| Decision Date | 09 February 2023 |
| Docket Number | 310 M.D. 2021,322 M.D. 2021,323 M.D. 2021 |
| Parties | Senator Jay Costa, Senator Anthony H. Williams, Senator Vincent J. Hughes, Senator Steven J. Santarsiero and Senate Democratic Caucus, Petitioners v. Senator Kim Ward and Senator Jarrett Coleman, Respondents Commonwealth of Pennsylvania, Pennsylvania Department of State, and Leigh M. Chapman, Acting Secretary of the Commonwealth of Pennsylvania, Petitioners v. Senator Jarrett Coleman, Senator Kim Ward and The Pennsylvania State Senate Intergovernmental Operations Committee, Respondents Arthur Haywood Julie Haywood, Petitioners v. Leigh M. Chapman Acting Secretary of State Commonwealth of Pennsylvania, Respondent |
| Court | Pennsylvania Commonwealth Court |
MARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA
Before the Court are the consolidated petitions for review filed by the Commonwealth of Pennsylvania, Department of State, and the Acting Secretary of the Commonwealth, Leigh M Chapman[1] (collectively, Acting Secretary); Senators Jay Costa, Anthony H. Williams, Vincent J. Hughes, and Steven J. Santarsiero, and the Senate Democratic Caucus (collectively, Democratic Senators); and Arthur Haywood and Julie Haywood (collectively, the Haywoods) (collectively, Petitioners).[2] Intervention was granted to the League of Women Voters of Pennsylvania, Common Cause Pennsylvania, Make the Road Pennsylvania, and eight registered voters (collectively, Voter Intervenors). Petitioners and Voter Intervenors challenge a subpoena duces tecum issued on September 15, 2021, by the Pennsylvania State Senate Intergovernmental Operations Committee (Senate Committee or Committee) to the Acting Secretary of the Commonwealth, to produce copies of certain election-related documents and deliver them to the General Counsel of the Senate Republican Caucus.[3] Petitioners and Voter Intervenors seek to enjoin the subpoena. For the reasons that follow, we dismiss the petitions for review.
Background
The Senate Committee's subpoena duces tecum seeks the production of 17 categories of election-related documents filed with and maintained by the Department of State. Included therein is a request for a list of all electors who voted in the November 2020 general election, by county, and the manner of their vote whether in person, by mail-in ballot, by absentee ballot, or by provisional ballot. The subpoena requests the same list, in the same format, for the May 2021 primary election. This requested information is contained in the Statewide Uniform Registry of Electors (SURE) system, 25 Pa. C.S. §1222[4] (as identified in what is known as the Pennsylvania Voter Registration Act, 25 Pa. C.S. §§701-3302). The subpoena requests a list of voter registration changes made in the SURE system between May 31, 2020, and May 31, 2021, and copies of the Department of State's audits of the SURE system between 2018 and 2021. Finally, the subpoena requests a copy of the certified results for the two elections.
Petitioners and Voter Intervenors seek to enjoin the subpoena because they believe it does not have a valid legislative purpose. They assert that the Senate Committee's true purpose is to challenge the outcome of the 2020 presidential election, which is a matter conferred exclusively upon the judiciary and governed by the Election Code.[5] Further, because the requested database includes voters' names, addresses, dates of birth, driver's license numbers, and the last four digits of their social security numbers, compliance with the subpoena may compromise the informational privacy rights of registered voters that are protected by the Pennsylvania Constitution.[6]
More specifically, the Acting Secretary's injunction petition asserts that the subpoena duces tecum is invalid and unenforceable because it:
Acting Secretary's Petition for Review, Prayer for Relief at 74. The Democratic Senators' injunction petition also asserts that the Senate Committee issued the subpoena to contest the 2020 general election or to do an election audit, either of which violates the separation of powers doctrine.[7] Further, the requested voter information is protected from public disclosure by the voter's constitutional right of informational privacy. Also asserting a right to informational privacy, the Haywoods seek to enjoin the Acting Secretary from disclosing their voter registration information contained in the SURE system. Voter Intervenors support the above-listed injunction petitions on the theory that the subpoena request is overbroad, is not for a valid legislative purpose, and implicates the informational privacy rights of the individual Voter Intervenors and the members of the association intervenors.
Petitioners and Voter Intervenors filed applications for summary relief requesting an immediate and permanent injunction.[8] The Senate Committee responded with its own application for summary relief, asserting that the Pennsylvania Constitution permits the legislature to conduct an investigation that may aid legislators in determining whether, or in what manner, they should consider amendments to the Election Code. The Senate Committee asserted that the informational privacy rights of registered voters are not implicated when information in the possession of the executive branch is shared with another branch of the Commonwealth government, whether legislative or judicial.
In a memorandum opinion and order filed on January 10, 2022, this Court denied all the applications for summary relief because the parties did not establish a clear right to the relief they sought.[9] Costa v. Corman (Pa. Cmwlth., No. 310 M.D. 2021, filed January 10, 2022); Pennsylvania Department of State v. Dush (Pa. Cmwlth., No. 322 M.D. 2021, filed January 10, 2022); Haywood v. Chapman (Pa. Cmwlth., No. 323 M.D. 2021, filed January 10, 2022) (cases consolidated).
Subsequent to the denial of summary relief, the Court directed the parties to address three questions: (1) whether the petitions for review were ripe for review; (2) whether the availability of an adequate remedy at law precludes the Court's exercise of equity jurisdiction over a challenge to a legislative subpoena; and (3) whether the General Assembly's constitutional enforcement power or the criminal contempt statute precludes the Court's exercise of equity jurisdiction. Court Order, 1/25/2022. Briefs were filed by all parties.
In her brief, the Acting Secretary argues that the matter is ripe for review because an actual controversy was created by the mere issuance of the subpoena duces tecum. The General Assembly's enforcement power exposes the Acting Secretary to arrest, detention, and criminal sanctions should this Court not exercise its equity jurisdiction. Democratic Senators, the Haywoods, and Voter Intervenors echo these arguments. Applying principles developed under the Right-to-Know Law,[10] they argue that the Acting Secretary cannot disclose the voters' driver license numbers and last four digits of their social security numbers to a third party without balancing the private informational interest against the public interest in disclosure. See Pennsylvania State Education Association v. Commonwealth Department of Community and Economic Development, 148 A.3d 142, 158 (Pa. 2016) (PSEA) (). Until the Senate Committee explains how the voter database information relates to potential legislation, the Acting Secretary cannot do this balancing of public and private interests, as she must before disclosing this information to a third party, i.e., the Senate Committee. Democratic Senators, the Haywoods, and Voter Intervenors observe that the Senate Committee's enforcement of the subpoena may provide the Acting Secretary a proceeding in which to raise her constitutional objections to the subpoena; however, because they have not been issued a subpoena, they are not guaranteed the opportunity to challenge the subpoena.
The Senate Committee responds that the legislature is not a third party, as suggested by the Acting Secretary. The General Assembly is the Commonwealth of Pennsylvania, as is the Secretary of the Commonwealth.[11] The subpoena duces tecum was issued under the express authority of the Pennsylvania Constitution and, as such, bears no relation to a citizen request for information presented to the Department of State under authority of a statute, i.e., the Right-to-Know Law. The Senate Committee also questions the sincerity of the informational privacy claim, noting that one of the Voter Intervenors, the League of Women Voters, subpoenaed this very same voter registration information in its challenge to the voter identification law on grounds that the statute would suppress the exercise of the franchise. See Applewhite v. Commonwealth, 54 A.3d 1 (Pa. 2012). In that litigation, this Court directed the Department of State to provide this voter information in discovery so that the League of Women Voters' consultant could prepare an expert report for use in the litigation. Applewhite v. Commonwealth (Pa. Cmwlth., No. 330 M.D. 2012, filed April 29, 2013) (Simpson, J., single-judge ...
To continue reading
Request your trial