In re Jordan

Citation277 A.3d 519
Decision Date19 April 2022
Docket Number56 MAP 2022
Parties IN RE: Nomination Petition of Robert JORDAN as Republican Candidate for State Representative from the 165th Legislative District Appeal of: Fred Runge, Objector
CourtUnited States State Supreme Court of Pennsylvania

Kathleen Marie Kotula, Esq., Pennsylvania Department of State, for Participant Kathleen Kotula.

Peter Poggi Elliot, Esq., Kevin Michael Greenberg, Esq., Greenberg Traurig, LLP, Philadelphia, for Appellant Fred Runge.

Leonard Bartholomew Altieri III, Esq., Michael Vincent Puppio Jr., Esq, Raffaele & Puppio, LLP, Media, for Appellee Robert Jordan.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE WECHT

This matter began with a challenge to the nomination petition of Robert Jordan, a candidate for the Republican Party's nomination for the office of State Representative of the 165th Legislative District. Fred Runge ("Objector") sought removal of Jordan's name from the ballot for the May 17, 2022 primary election on the ground that Jordan had moved into the district less than a year before the November 8 general election and therefore could not satisfy the residency requirements set forth in Article II, Section 5 of the Pennsylvania Constitution.1 The Commonwealth Court found Objector's claim non-justiciable and dismissed his challenge for lack of subject matter jurisdiction. Given the need to resolve the appeal expeditiously to provide notice to the parties and election administrators, we reversed the lower court's decision in a per curiam Order dated April 19.2 We also directed the Secretary of the Commonwealth to remove Jordan's name from the ballot, finding by a preponderance of the evidence that Jordan will not have been an inhabitant of the 165th Legislative District for at least one year preceding the general election. This opinion explains our ruling.

I.

The pertinent facts are not in dispute.3 Beginning in April 2020, Jordan resided and was registered to vote in Broomall, a census-designated place in Marple Township, Delaware County. Jordan's Broomall residence was located in what was then House District 165 ("Old HD-165").4 Before November 8, 2021, Jordan signed an agreement for the purchase and construction of a new home in Swarthmore Borough, then situated in Old HD-161. The new home was certified for occupancy on February 7, 2022, and the parties stipulated that Jordan moved into the residence between that date and March 16, the date that this Court resolved all challenges to the 2021 Legislative Reapportionment Commission's Final Plan.5 Both dates are significant because, with the implementation of the Final Plan, Swarthmore's district changed from Old HD-161 to New HD-165, so Jordan was not a resident of either the former or present incarnation of HD-165 for a period of time earlier this year.6

Jordan timely filed a nomination petition seeking the Republican Party's nomination to represent New HD-165, in which he identified his Swarthmore address as his residence. In completing the required form affidavit that he attached to his petition, Jordan placed an asterisk after the portion of the affidavit that requires a candidate to confirm his or her eligibility for office, and added a handwritten citation, without additional explanation, to footnote seven of this Court's decision in In re 1991 Pennsylvania Legislative Reapportionment Commission , 530 Pa. 335, 609 A.2d 132 (1992) (" 1991 LRC "). In that footnote, this Court identified but did not decide the following wholly speculative issue that might arise as a consequence of some future redistricting process:

Appellant [candidate] raises a residency issue as well in his appeal from the final plan, and alleges that it will be impossible for an incumbent senator to have resided in his district for a year before the election, and for all four years of his tenure (as mandated by the Constitution) if the Senatorial Districts are altered by the Reapportionment Commission. This issue is not yet ripe for review because no senator has suffered adverse consequences in the form of losing a seat for failure to satisfy the residency requirement. However, we would note that the constitutional residency requirements may conflict with the constitutional mandate of reapportioning the Commonwealth every ten years. In light of that conflict, it may be necessary that residency requirements be waived when the Commission reapportions the Commonwealth less than one year before an election. These issues and possible resolutions are for the Senate to decide. ... This Court will reserve ruling on this issue until such time that a particular party suffers injury at which point we will address the apparent conflict between the constitutional provisions.

Id. at 139 n.7.

Objector timely challenged Jordan's nomination petition on two grounds. First, Objector asserted that Jordan constitutionally was ineligible to run for State Representative because Jordan will not have resided in New HD-165 for at least one year preceding the November 2022 general election. Second, Objector argued that Jordan improperly rendered his statement of eligibility conditional in nature by adding the asterisk and citation.

For his part, Jordan acknowledged that he moved to Swarthmore less than a year before the November election, but he emphasized that his previous residence in Broomall was within Old HD-165 and that his current residence in Swarthmore is in New HD-165. Because redistricting occurred less than a year before Election Day, he argued, it would be impossible for him or anyone else to have resided in New HD-165 in its present configuration for one year in advance of the election. As for his amendment to the affidavit, Jordan explained that he simply was clarifying the grounds for his eligibility by citing authority that he believed justified a waiver of the one-year residency requirement when the legislative redistricting process becomes final less than a year before a general election.

The Honorable Christine Fizzano Cannon heard the parties’ arguments on April 7, 2022, when they stipulated to the foregoing facts. In a memorandum opinion, Judge Fizzano Cannon concluded that the court lacked jurisdiction to consider Objector's residency challenge because his claim was non-justiciable.

Judge Fizzano Cannon first identified a distinction between this case and "those in which objectors have challenged candidates’ affidavits as stating false addresses." Mem. Op., 4/11/2022, 187 M.D. 2022, slip op. at 4. The court explained that "[s]tating one's current address in a candidate's affidavit is a statutory requirement under Section 910 of the Pennsylvania Election Code, 25 P.S. § 2870(a), not a constitutional mandate. Where objectors challenge as false the statutorily required assertions in candidates’ affidavits, courts have jurisdiction under the Election Code to consider such challenges." Slip Op. at 5 (cleaned up). But Objector did not challenge the veracity of Jordan's stipulated residence. Rather, Objector alleged that Jordan did not satisfy the one-year residency requirement and therefore constitutionally was ineligible to run for the state House. Given that distinction, the court sua sponte considered whether it had jurisdiction to hear Objector's particular challenge.

The court relied heavily upon the expressions of a plurality of Justices7 in Nomination Petition of Jones , 505 Pa. 50, 476 A.2d 1287 (1984), which involved a similar one-year residency challenge brought against a candidate for the Democratic Party's nomination for state Senate from Philadelphia. In Jones , the Court considered "whether or not Article II, Section 5 dictates that a court should make an a priori determination of whether a candidate meets the constitutional requirements for the office she seeks to obtain and on the basis of that judgment deny the candidate the right to put her name before the public for consideration." Id. at 1290. Central to the plurality's analysis was its characterization of the residency challenge at issue as one relying "solely on Article II, Section 5 as the predicate for ... jurisdiction." Id. at 1293. As such, the plurality regarded the "unstated premise" of the challengers’ argument to be that Article II, Section 5 "is self-executing," putatively a precondition to "authoriz[ing] court involvement." Id. at 1290.

Rejecting that premise, the plurality observed that " Article II, Section 5 does not by its terms grant jurisdiction to the courts to inquire into the qualifications of one seeking to run for the office." Id. at 1293.

Article II is concerned with the composition, powers and duties of the legislature. Nothing in this article even remotely suggests the conferrence of jurisdiction upon the courts to test the qualifications of the members of the General Assembly. Indeed, [Article II, Section 9] expressly states that each body of the General Assembly shall be the judge of the qualifications of its members.[8 ] Moreover, Article II, Section 5 by its express terms refers only to the qualifications of the members of the body. There is no reference to persons who file to run for office.

Id. at 1290-91 (emphasis in original). As the general power "to regulate the election process is vested in the legislature," it was up to the legislative branch to "expressly ... confer" the power to adjudicate the constitutional qualifications of candidates to the judicial branch—or, correlatively, to not do so. Id. at 1293 ; see id. ("The courts have been granted limited (not plenary) authority by the legislature over the election process."). The plurality concluded that the absence of an express conferral of such authority was fatal to the challengers’ efforts. See id. at 1293-94 ("Because our jurisdiction in th[is] area flows from statute rather than common law, it cannot be extended by implication beyond the prescription of the act from which it originates. ... Absent an identification of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT