In re the Nomination Petitions And Papers of Carl Stevenson As a Candidate For State Representative In the 134th Legislative Dist..Appeal of Carl Stevenson.

• Decision Date: 04 October 2010
• Citation: 12 A.3d 273
• Parties: In re the Nomination Petitions and Papers of Carl STEVENSON as a Candidate for State Representative in the 134th Legislative District.Appeal of Carl Stevenson.
• Court: Pennsylvania Supreme Court

12 A.3d 273

In re the Nomination Petitions and Papers of Carl STEVENSON as a Candidate for State Representative in the 134th Legislative District.Appeal of Carl Stevenson.

Supreme Court of Pennsylvania.

Oct. 4, 2010.

OPINION TEXT STARTS HEREWest CodenotesRecognized as Unconstitutional25 P.S. § 2911(d) Mary Catherine Roper, Witold J. Walczak, American Civil Liberties Foundation of PA, Paige Hennessey Forster, Kim M. Watterson, Reed Smith, L.L.P., Pittsburgh, for Carl Stevenson.Louis Lawrence Boyle, for Bureau of Elections, Pennsylvania Department of State.Lawrence M. Otter, Doylestown, for Michael W. Gibson and Robert W. Mader.Shauna Christine Graves, for Secretary of the Commonwealth, amicus curiae.

ORDER

PER CURIAM.

AND NOW , this 4th day of October, 2010, the order of the Commonwealth Court, which granted objectors-appellees' Petition to Set Aside candidate-appellant Carl Stevenson's Nominating Paper ¹ and ordered the Secretary of the Commonwealth to strike appellant's name from the general election ballot for the office of State Representative in the 134th Legislative District, is hereby VACATED and the case is REMANDED for an immediate hearing to determine the individual signature challenges asserted in the Petition to Set Aside. We will retain limited jurisdiction, as explained below, but the Commonwealth Court is fully authorized to enter necessary orders to implement its ultimate decision.

Appellees petitioned to set aside appellant's Nominating Paper on grounds that appellant did not secure a sufficient number of valid signatures on his Nominating Paper to appear on the ballot. Appellees lodged two distinct objections to the Nominating Paper: (1) a “global” challenge to three pages of signatures because the circulator of those pages was not a resident of the legislative district, in violation of 25 P.S. § 2911(d); and (2) challenges to individual signatures on the Nominating Paper, which appellees alleged were insufficient in number to qualify the Nominating Paper if the challenges proved meritorious. In response, appellant argued that the global challenge failed because Section 2911(d) was unconstitutional under the First Amendment to the U.S. Constitution to the extent it imposed a residency requirement. In support of his argument, appellant cited the decision in Morrill v. Weaver, 224 F.Supp.2d 882 (E.D.Pa.2002), which invalidated Section 2911(d) as unconstitutional to the extent it requires that nominating paper affiants in Pennsylvania must be residents of particular electoral districts, and permanently enjoined the Commonwealth from enforcing the provision. Appellant also argued that the Secretary of the Commonwealth, who did not appeal the decision in Morrill, had altered its Nominating Paper form and instructions to comply with the permanent injunction, and that he had relied upon the forms, and advice from the Department of State, before engaging a non-resident circulator to secure nomination signatures. With respect to the individual signature challenges, the parties did not reach an agreement on whether appellant had sufficient valid signatures, aside from the global challenge; it appears that a very small number of signatures remained in dispute.

At the suggestion of appellees, the lower court deemed the global challenge to be dispositive; sustained the challenge and rejected appellant's First Amendment claim and his claim of reliance upon the Secretary's implementation of Morrill; ordered that appellant's name be stricken from the ballot; and did not pass upon the individual signature challenges. The court thus resolved the challenge in a manner implicating a novel constitutional question, and failed to decide a potentially dispositive non-constitutional challenge. We caution the lower courts that, in election appeals, where there is a severely truncated time-frame afforded for challenge and appeal, it is important, where possible, to decide all issues in one timely proceeding, so as to avoid the prospect of multiple appeals, as will be occasioned by the lower court's decision in this case. See In re Nominating Petitions of Senator Vincent J. Fumo, 577 Pa. 496, 846 A.2d 672, 673–74 (2004) (Castille, J., concurring and dissenting statement) (noting that “unnecessary piecemeal review of election matters ... exhausts much of the little review time afforded under the Election Code.... [W]here time is of the essence, it is preferable to have a single proceeding, followed by a single appeal” and citing In re Petition to Set Aside Nomination Petition of Kathleen M. Fitzpatrick, 573 Pa. 514, 827 A.2d 375, 384 (2003) (Castille, J., dissenting statement, joined by Nigro and Eakin, JJ.)). There appears to be no evident reason why a timely, complete decision could not have been rendered here.

Furthermore, we remind the court below that, as a general matter, it is better to avoid constitutional questions if a non-constitutional ground for decision is available. See, e.g., Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505, 519 (2005) (“[T]his Court seeks to avoid constitutional issues if the claim may be resolved on alternative grounds.”). It is particularly ill-considered to ignore the non-constitutional ground and then reach a constitutional question where, as here, the decision is disruptive of an existing permanent federal injunction which binds Commonwealth election officials.

On appeal, appellant renews his argument that application of the residency requirement is unconstitutional under the First Amendment, emphasizing, as he did below, the Secretary's actions implementing the Morrill decision. Appellant requests that we reverse the decision below, declare the Section 2911(d) residency requirement unconstitutional and unenforceable, and remand the case for full consideration of appellees' signature challenges. Appellees respond that remand for consideration of the individual signature challenges would be appropriate, so as to avoid the First Amendment question raised, but then provide a brief alternative argument to support affirmance.

We find that vacatur and remand to consider the individual signature challenges is appropriate. The decision below on appellees' global challenge is not sustainable on the record before this Court, and thus, the court's order directing that appellant's name be stricken from the ballot must be vacated, and the case remanded for the lower court to decide the individual signature challenges. Neither the lower court nor appellees have forwarded any...