In re Nomination Petition of Lawrence Farnese

• Decision Date: 29 March 2011
• Citation: 17 A.3d 375
• Parties: In re Nomination Petition of Lawrence FARNESE, Jr., for the Democratic Nomination for Senator in the General Assembly for the First Senatorial District in the Primary Election to be Held on April 22, 2008.Appeal of Keith Olkowski and Theresa A. Paylor.
• Court: Pennsylvania Supreme Court

17 A.3d 375

In re Nomination Petition of Lawrence FARNESE, Jr., for the Democratic Nomination for Senator in the General Assembly for the First Senatorial District in the Primary Election to be Held on April 22, 2008.Appeal of Keith Olkowski and Theresa A. Paylor.

Supreme Court of Pennsylvania.

March 29, 2011.

Samuel C. Stretton, Law Office of Samuel C. Stretton, West Chester, for appellant.David J. Montgomery, Clifford B. Levine, Thorp Reed & Armstrong, L.L.P., Pittsburgh, for appellee.CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION IN SUPPORT OF PER CURIAM ORDERJustice McCAFFERY.

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of grounds in the Commonwealth Court, Appellee withdrew 934 signatures on the advice of counsel, who agreed that the withdrawn signatures were invalid because they had not been procured in the actual presence of the circulators of the signature pages.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 Olkowski 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, 605 Pa. 375, 989 A.2d 1274 (2008) ( Farnese I ). We entered the order despite our concerns that Appellee had submitted and then withdrawn or stipulated to the invalidity of the majority of the signatures contained in his nomination petition.¹ In our per curiam order, we stated that an opinion would follow, and this opinion now addresses Appellants' issues on appeal, and expresses our concern that a candidate for office should not be permitted to submit a nomination petition that contains mostly illegitimate signatures without doubt being cast upon the propriety of the candidate's entire signature procurement process.

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.² This Court has held that in order to verify this information, the circulator needs to be present when each signer agrees to sign the petition. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327, 336 (2001).

In this matter, Appellants sought to establish pervasive fraud in the circulators' procurement of signatures on the nomination petition for Appellee. At the hearing on their petition to set aside the nomination petition, Appellants sought to admit into evidence a report prepared by a private detective that contained affidavits from persons whose signatures had been procured or purportedly procured by the persons circulating the signature pages. Some of the signers affirmed that the circulator of the petition had indicated to them that the petition was to upgrade a neighborhood playground. Other signers affirmed that the circulator had indicated to them that the candidate was an African American, and that the circulator had shown them a photo of an African American male who was supposedly that person. Other purported signers affirmed that the signature contained on the signature page was not their signature. Other signers affirmed that the circulator had told them it was permissible to sign the names of others in their household who were not home at the time, and that the signers did, in fact, sign for those absent household members based on that representation. The court ruled that the report of the detective was inadmissible because “allegations of a pattern of fraud are immaterial in a case involving objections to nomination papers and that such allegations will be disregarded.” In re Nomination of Farnese, 945 A.2d 274, 278 n. 10 (Pa.Cmwlth.2008) ( Farnese II ).³

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.⁴

In this appeal, Appellants raise the following questions that we have paraphrased for the sake of brevity and clarity, and will address together:

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, 865 A.2d 8 (Pa.Cmwlth.2004), on remand from this Court, a number of judges of the Commonwealth Court, sitting as fact-finders, conducted an extraordinary review of more than 50,000 signatures contained in the nomination petition of a candidate for President of the United States who sought to appear on the Pennsylvania ballot. The Commonwealth Court judges not only considered allegations of fraud, but actually found widespread fraud, and set aside the petition upon determining that it contained an insufficient number of legitimate signatures. Id. at 19. In that case, testimonial evidence was presented that showed how the circulators of the signature pages fraudulently procured, falsified, forged, and failed to authenticate signatures. Id. at 16. Among many other things, the court specifically found “that the campaign had knowledge that false signatures were submitted on the nomination papers.” Id. at 14. Given the gross irregularities in the procurement of signatures, the court felt “compelled” to offer the following observation:

... 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, 580 Pa. 134, 860 A.2d 1 (2004), cert. denied, Nader v. Serody, 543 U.S. 1052, 125 S.Ct. 884, 160 L.Ed.2d 773 (2005)).

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, there is precedent from this Court to support the proposition that evidence regarding the procurement process is a legitimate factual inquiry, and that the existence of a large number of signature irregularities on a signature page may raise a reasonable inference that the circulator's affidavit attesting to the legitimacy of the signatures is false. Citizen's Com. to Recall Rizzo v. Bd. of Elections, et al., 470 Pa. 1, 367 A.2d 232, 241 (1976).⁵ The form of nominating petitions and their accompanying affidavits are not mere technicalities, but are necessary measures to prevent fraud and to preserve the integrity of the election process. In re Nomination Petition of Cianfrani, 467 Pa. 491, 359 A.2d 383, 384 (1976). The policy of liberally reading the Election Code cannot be distorted to emasculate the requirements of providing legitimate sworn...