In re Nomination Petition of Lawrence M. Farnese

Citation17 A.3d 357
PartiesIn re Nomination Petition of Lawrence M. FARNESE, Jr., for the Democratic Nomination for Senator in the General Assembly for the First Senatorial District in the Primary of April 22, 2008Appeal of Keith Olkowski and Theresa A. Paylor.
Decision Date29 March 2011
CourtUnited States State Supreme Court of Pennsylvania

OPINION TEXT STARTS HERE

Samuel C. Stretton, Law Office of Samuel C. Stretton, West Chester, for Keith Olkowski.David J. Montgomery, Clifford B. Levine, Pittsburgh, Thorp Reed & Armstrong, LLP, for Lawrence M. Farnese, Jr.Louis Lawrence Boyle, PA Department of State, for Pennsylvania Department of State.CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Chief Justice CASTILLE.

Appellants are unsuccessful objectors to the nomination petition of a candidate for office, who appeal the Commonwealth Court's decision to award costs of litigation to the candidate pursuant to Section 977 of the Election Code (Section 977 or “cost-allocation provision”).1 For the reasons that follow, we reverse.

On February 11, 2008, Lawrence M. Farnese, Jr., (“candidate”) filed with the Secretary of the Commonwealth a petition for participation in the April 2008 primary election to secure the Democratic Party nomination for the office of Senator in the General Assembly from the First District (“nomination petition”). The nomination petition contained forty-nine signature pages, affidavits from eighteen circulators, and the candidate's affidavit.2 The candidate submitted a total of 1,778 presumptively valid signatures, well over the five hundred signatures required to be placed on the ballot in the Democratic Party primary election pursuant to Section 912.1 of the Election Code.3

On February 21, 2008, appellants Keith Olkowski and Theresa A. Paylor (objectors)—registered Democrats residing in the First District—filed an action in the original jurisdiction of the Commonwealth Court to set aside the nomination petition pursuant to Section 977 of the Election Code (objectors' petition”).4 The objectors alleged that over 1,500 of the signatures from the nomination petition were invalid and, therefore, the candidate submitted “at most 278 [valid] signatures” and failed to meet the statutory requirement for appearing on the ballot. The objectors' main claims were the following:

— Individual signatures should be stricken because: voter's signature was written by another, voter's signature did not conform to signature in voter registration file, voter signed twice, voter was not a registered Democrat, voter's address was invalid/nonexistent, voter did not provide address, voter resided at different address, voter's signature was obtained under false pretenses, or signature line was altered;

— Individual pages should be stricken because: page was not validly notarized or page had a false circulator's affidavit (in light of many false and/or fraudulent individual signatures); and

— Nomination petition should be stricken in its entirety in view of the pervasive fraud in obtaining individual signatures, the false circulators' affidavits, and the invalid notarization.

Objectors' Petition at 2–4. Shortly after the objectors filed their petition, the Commonwealth Court, per the Honorable Rochelle S. Friedman, issued an expedited case management order setting the deadline for filing stipulations, expert reports, and witness lists for March 3, 2008, and scheduling a hearing on March 6, 2008. At the parties' request, Judge Friedman extended the deadline for submitting stipulations to March 5 and rescheduled the hearing for March 7, 2008, which allowed the parties additional time to negotiate stipulations.

In the interim, both parties filed timely witness lists and expert reports. The objectors submitted an expert report prepared by forensic document examiner William J. Ries and a private investigator's report prepared by Russell Kolins, which detailed the candidate's alleged “fraud” and was supported by affidavits from witnesses who stated that their signatures on the nomination petition had been falsified. In support of his effort to rehabilitate individual signatures, the candidate filed an expert report prepared by document examiner Michelle Dresbold.

On March 5, 2008, the objectors filed proposed stipulations and a brief. According to the objectors' stipulations, the candidate was withdrawing twenty-two signature pages (total of 934 signatures) from the nomination petition and the objectors were abandoning two full-page challenges. The objectors also stated that the parties agreed to the validity or invalidity of selected individual signatures on the remaining twenty-seven pages. The objectors stated that they “reserve[d] the right to use” any pages withdrawn by the candidate as evidence to challenge individual pages and the entire nomination petition. Objectors' Proposed Stipulation, 3/5/08, at 2.

In the brief accompanying their proposed stipulations, the objectors explained their purported reservation of right, essentially making a “false-in-one, false-in-all” argument. According to the objectors, all of the circulators' affidavits notarized by Jonathan J. Oriole—and the signature pages to which they were attached—had to be stricken because Mr. Oriole had falsely notarized a page (page 33) of the nomination petition. Page 33 was one of the twenty-two pages withdrawn by the candidate; it had been challenged as falsely notarized because someone other than the circulator signed the circulator's name on the affidavit, indeed misspelling the name. Similarly, the objectors also argued for striking all of the affidavits—and the signature pages to which they were attached—of circulators whose pages were withdrawn by the candidate after being challenged on grounds they contained numerous invalid signatures. The objectors sought to call the circulators of the withdrawn pages as witnesses at the March 7th hearing. According to the objectors, given the pervasive irregularities on some signature pages, the circulators of those pages “lied under oath” and, therefore, all the affidavits they signed and the attached signature pages should be deemed invalid. Objectors' Brief, 3/5/08, at 1–2, 5. The objectors conceded that the outcome of their challenge to the candidate's nomination petition would depend on Judge Friedman's rulings on their “false-in-one, false-in-all” theory. Objectors' Proposed Stipulation, 3/5/08, at 2.

In response, on March 6, 2008, the candidate filed his own proposed stipulations regarding the validity of individual signatures, two motions in limine, and a motion to strike certain challenges in the objectors' petition. In the motion to strike, the candidate objected to two types of challenges the objectors raised to individual signatures: the “invalid signature” category on grounds of specificity, and the “circulator lives out of district” category on constitutional grounds. Candidate's Motion to Strike, 3/6/08, at 2–6. Via the motions in limine, the candidate sought to preclude the objectors from introducing any evidence related to notary Jonathan J. Oriole, from introducing any withdrawn signature pages into evidence, and from calling individual circulators as witnesses. The candidate argued that the withdrawn pages were no longer part of the nomination petition, should not be accepted into evidence, and were irrelevant to show the invalidity of otherwise presumptively valid signatures involving the same notary public or the same circulators. The candidate also sought to prevent individual circulators from testifying, on grounds of relevancy. He claimed that the only reason the objectors sought to introduce the circulators' testimony was to impeach them with prior bad acts (the irregularities on the withdrawn signature pages), which was impermissible under the Pennsylvania rules of evidence. Candidate's Motion in Limine (Notary), 3/6/08, at 1–4; Candidate's Motion in Limine (Circulators), 3/6/08, at 2–5.

At the March 7th hearing, the parties reviewed the competing stipulations and of the original 1,778 signatures, 934 were withdrawn by the candidate. In addition, the parties agreed that another 143 signatures were invalid. The objectors then argued to strike 270 of the remaining 701 signatures—several full pages—on the ground that the attached circulators' affidavits were “incorrect or false.”

In support of their claim vis-à-vis the 270 signatures, the objectors sought to question the circulators of the withdrawn pages “on their understanding of the basic criteria of their oath and obligations as a circulator as defined by [Section] 909 of the Election Code.” 5 According to the objectors, if a circulator stated that s/he did not understand or follow the legal criteria, all of that circulator's signature pages had to be stricken. If a circulator testified that s/he was aware and understood the legal criteria of Section 909, then the objectors wished to impeach his/her credibility with evidence of the allegedly “fraudulent or false affidavits concerning the [signature pages] that were withdrawn.” N.T., 3/7/08, at 9. The objectors argued that the affidavits were false, inter alia, because the nomination petition listed residences that did not exist but were vacant lots, listed group residences/homeless shelters that were not in operation, and listed signatures of persons who filed affidavits stating that they never signed the nomination petition and/or had no reason to provide a particular shelter as his/her residence. Id. at 10–11. The objectors contended that the withdrawn signature pages showed that those circulators were not familiar with their “requirements and obligations;” and if there was fraud or false affidavits with regard to the withdrawn signature pages, then the circulators' other pages “should also be withdrawn, because one should not benefit by fraudulent conduct in the past and then present other [pages] during the same time period.” The objectors argued that the validity of...

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