In re Payton

Decision Date25 March 2008
Docket NumberNo. 99 M.D. 2008,99 M.D. 2008
Citation945 A.2d 279
CourtPennsylvania Commonwealth Court
PartiesIn re Nomination Petition of Tony PAYTON, Jr. for the Office of Representative in the General Assembly District Number 179 Objection of John A. Danford.

James C. Crumlish III, Blue Bell, for petitioner.

Clifford B. Levine and Shawn N. Gallagher, Pittsburgh, for respondent.

OPINION BY Judge SMITH-RIBNER.

On February 21, 2008, John A. Danford (Objector) filed in this Court a petition to set aside the Nomination Petition of Tony Payton, Jr. (Candidate) for the Office of Representative in the General Assembly, 179th Legislative District. Objector averred that he is a duly registered Democratic elector in the 179th District. Candidate, an incumbent State Representative, must submit a nomination petition containing at least 300 valid signatures of registered Democratic electors from that district to appear on the April 22, 2008 primary election ballot. Section 912.1(14) of the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, added by Section 2 of the Act of December 12, 1984, P.L. 968, 25 P.S. § 2872.1(14). On February 12, 2008, Candidate filed his nomination petition containing 41 Pages with 1361 Lines of signatures.

A case management order was issued by Commonwealth Court on February 21, 2008 directing that Objector arrange to meet with Candidate or his representative at the county office responsible for voter registration to review every challenged signature before hearing. It directed the parties to file with the Chief Clerk of the Court by 12:00 Noon on February 28, 2008 a stipulation that identified the total number of signatures submitted in the nomination petition, the total number of uncontested signatures, the total number of signatures challenged and each signature to which there was an objection, identified by Page and Line number, with the basis for the objection. Objector and Candidate also were ordered to identify all witnesses and to submit expert reports and curriculum vitae for expert witnesses intended to testify at hearing. Upon Candidate's application, the Court continued the hearing from February 28 to March 17 with stipulations and lists to be filed by 12:00 Noon on March 13. Objector filed stipulations and a list of witnesses on March 13, and Candidate filed stipulations, a list of witnesses, a list of facial defects subject to rehabilitation and an expert report and curriculum vitae for Michelle Dresbold, who was offered as an expert in handwriting analysis and was allowed to testify as such.

I Candidate's Pre-hearing Motions

On March 14, 2008, Candidate filed three motions for relief. First was a Motion in Limine to Preclude Testimony and Report of Petitioner's Expert. He noted that the case management order required expert reports and curriculum vitae by March 13 and that Objector failed to comply. Nevertheless, Objector's list of witnesses identified Bill Reis as an expert to be called at hearing, and Candidate requested that Mr. Reis be precluded from testifying or filing an expert report. Second was a Motion to Quash Subpoena Duces Tecum Issued to Candidate. It stated that six Pages had been withdrawn from the nomination petition (Pages 2, 8, 13, 33, 35 and 36), that there were "global" challenges (challenges to entire pages) to ten remaining pages (Pages 18, 19, 21, 28, 34, 37, 38, 39, 40 and 41), that the challenges to Pages 18 and 19 were based on "Bad Signature," that those for Pages 21 and 28 were based on claims that the circulator did not reside in the district and that the remaining challenges related to alleged defects in notarization.

Objector had served a wide-ranging subpoena duces tecum directing Candidate to bring four categories of documents to the hearing. They included (1) all documents including e-mails relating to his or the campaign's investigation, review and analysis of the qualifications of electors and circulators and the conduct of the execution, circulation and filing of nomination petitions; (2) all documents including emails relating to the payment of persons involved in the circulation of nomination petitions; (3) all documents including emails relating to Candidate's "compliance with Pennsylvania Campaign Finance Law, Pennsylvania Election Code and Pennsylvania Ethics Act"; and (4) all documents, including e-mails, relating to statements attributed to Candidate in a March 3, 2008 newspaper article.

Third was a Motion in Limine to Preclude Introduction of Evidence and to Limit Questioning of Witnesses Regarding Pages Withdrawn from the Nomination Petition and Pages that are Not the Subject of Global Challenges. Candidate argued that any evidence relating to the withdrawn Pages was wholly irrelevant and pointed out that a court cannot presumptively invalidate nomination signatures based upon nothing more than invalidity of other signatures obtained by a circulator. See In re Pittsburgh Home Rule Charter, 694 A.2d 1128 (Pa.Cmwlth. 1997) (refusing to disqualify remaining signatures obtained by circulator where twenty percent were deemed to be invalid). In In re Nomination Paper of Rogers, 908 A.2d 942 (Pa.Cmwlth.2006) (one-Judge decision), President Judge Colins repeated the rule that an objector bears the burden of proving the invalidity of each individual line challenged and rejected as immaterial allegations by the objectors of patterns of fraud in the collection of signatures. Impeachment of witnesses through evidence of prior misconduct is prohibited under Pa. R.E. 608(b)(1), and questioning of circulators' conduct and their affidavits would be irrelevant where only two global challenges related to circulators' signatures and all others related to the residence of the circulator or the lack of notarization.

At the hearing on March 18, 2008, the Court first granted the Motion to Quash Subpoena Duces Tecum as to items (1), (2) and (3) identified in Schedule A attached to the subpoena. Where only two global challenges were stated to circulators' signatures, Objector's request for all documents including e-mails regarding the campaign's investigation and review of qualifications of circulators and of such documents relating to payment of circulators was well beyond the scope of specific challenges that were alleged. The request for all documentation relating to compliance with the Campaign Finance Law, the Election Code and the Ethics Code, was obviously overly broad, where there were no allegations at all referring to the first and the last, and a response to the second might well include all documents generated by the campaign. The Court denied the motion as to item (4), thereby permitting limited questioning of Candidate in regard to statements attributed to him m the newspaper article.

Next, the Court granted Candidate's Motion to Preclude Introduction of Evidence and to Limit Questioning of Witnesses. The Court recognizes an express provision in Section 976 of the Election Code, 25 P.S. § 2936, that the invalidity of any sheet of a nomination petition shall not affect the validity of the nomination petition if sufficient valid signatures remain. See Pittsburgh Home Rule Charter (refusing to invalidate presumptively valid signatures based simply upon invalidity of other similarly-gathered signatures). Also, Section 909, 25 P.S. § 2869, requires a circulator to attach an affidavit to each sheet, and therefore it would be improper to strike a particular sheet based on invalidity of an affidavit, on another sheet. Pittsburgh Home Rule Charter.

The Court refused to allow any questioning as to the circulation of Pages that were withdrawn from the nomination petition or to permit questioning regarding circulation "other than in regard to Pages 18 and 19, where the circulator's signature had been challenged. See In re Nader, 865 A.2d 8 (Pa.Cmwlth.) (noting many pages that the candidate withdrew upon which no evidence was presented as signatures thereon were no longer at issue), aff'd, 580 Pa. 134, 860 A.2d 1 (2004); also see Black's Law Dictionary 1632 (8th ed.2004) defining "withdraw," inter alia, as "to take back" or "to retract." If pages are withdrawn from a petition, there is nothing for the Court to consider. In this matter, the Court discerned no basis for hearing testimony from signers of withdrawn pages and so excused them all.

Finally, the Court ruled upon the Motion in Limine to Preclude Testimony and Report of Petitioner's Expert. As Candidate argued, he was not the party with the burden of proof but had complied with the case management order and had produced an expert report including a detailed examination of all of the challenged signatures. Despite Objector's assertion to the contrary, there obviously would be prejudice in requiring Candidate to meet expert opinions and analysis of which he became aware for the first time at the hearing. Compare by analogy Petition of Bishop, 525 Pa. 199, 579 A.2d 860 (1990) (reasoning that the Election Code purpose is to provide persons seeking nomination with sufficient information to mount a defense to challenges). In the absence of a valid reason for not doing so, there must be a sanction for failing to produce an expert witness report where a party intends to call an expert at hearing. Hence, the Court granted Candidate's motion and excluded testimony by Objector's proposed expert witness Mr. Reis.

II Applicable Legal Principles

The basic principles applicable to challenges to nomination petitions are familiar or by now should be familiar to any candidate who chooses to circulate nomination petitions in his/her run for elective office. The Election Code shall be liberally construed so as to protect a candidate's right to run for office and a voter's right to elect the candidate of his/her choosing. In re Nader, 580 Pa. 22, 858 A.2d 1167 (2004). The Court, however, may not disregard requirements...

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