Nutter v. Dougherty

• Decision Date: 02 April 2007
• Docket Number: No. 2361 C.D. 2006.,No. 2304 C.D. 2006.,No. 2375 C.D. 2006.,2304 C.D. 2006.,2361 C.D. 2006.,2375 C.D. 2006.
• Citation: 921 A.2d 44
• Parties: Michael A. NUTTER, Appellant v. John DOUGHERTY, Dwight Evans, Chaka Fattah, Jonathan Saidel and City of Philadelphia. Michael A. Nutter v. John Dougherty, Dwight Evans, Chaka Fattah, Jonathan Saidel Appeal of: John Dougherty. Michael A. Nutter v. John Dougherty, Chaka Fattah, and the City of Philadelphia. City of Philadelphia, Appellant.
• Court: Pennsylvania Commonwealth Court

921 A.2d 44

Michael A. NUTTER, Appellant v. John DOUGHERTY, Dwight Evans, Chaka Fattah, Jonathan Saidel and City of Philadelphia.

Michael A. Nutter v. John Dougherty, Dwight Evans, Chaka Fattah, Jonathan Saidel

Appeal of: John Dougherty.

Michael A. Nutter v. John Dougherty, Chaka Fattah, and the City of Philadelphia.

City of Philadelphia, Appellant.

No. 2304 C.D. 2006.

No. 2361 C.D. 2006.

No. 2375 C.D. 2006.

Commonwealth Court of Pennsylvania.

Argued March 7, 2007.

Decided April 2, 2007.

Susan L. Burke, Philadelphia, for designated appellant, Michael A. Nutter.

Richard G. Feder, Philadelphia, for appellant, City of Philadelphia.

George Bochetto, Philadelphia, for appellee, John Dougherty.

Gregory M. Harvey, Philadelphia, for appellee, Chaka Fattah.

BEFORE: LEADBETTER, President Judge, and COLINS, Judge, and SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and FRIEDMAN, Judge, and COHN JUBELIRER, Judge, and LEAVITT, Judge.

OPINION BY Judge SMITH-RIBNER.

This matter involves consolidated appeals stemming from dismissal of the complaint filed April 12, 2006 in the Court of Common Pleas of Philadelphia County by Michael A. Nutter (former Philadelphia City Councilman) against John Dougherty, Chaka Fattah, Dwight Evans and Jonathan Saidel,¹ politicians who Nutter averred were exploring Mayoral candidacies. Nutter sought a declaration from the trial court that the named Defendants were required to abide by campaign contribution dollar limits set forth in Chapter 20-1000 of the Philadelphia Code, also known as the Philadelphia Campaign Finance Ordinance ("Ordinance"). Nutter and Intervenor City of Philadelphia appeal from the trial court's order entered on December 13, 2006 granting judgment on the pleadings in favor of the named Defendants based on the trial court's determination that the Ordinance was "unconstitutional, void and therefore unenforceable."²

The trial court entered its order after Nutter withdrew his complaint on November 6, 2006, leaving outstanding Count II of the counterclaim filed by Dougherty, which had not been withdrawn. Previously, on September 27, 2006, the trial court sustained Nutter's preliminary objections to Count I of Dougherty's counterclaim, and Dougherty has cross-appealed that order to this Court.

I Background

City Council enacted the original Ordinance on December 18, 2003 (Bill No. 030562), effective January 1, 2004, establishing a $1000 limit on the amount of campaign contributions that may be made by "persons" to candidates for Mayor and City Council and a $5000 limit on the contributions that may be made by political action committees. City Council amended the Ordinance on May 26, 2005 (Bill No. 050301-A), which the Mayor signed June 9, 2005, to impose the limit on contributions to candidates for all other City elective offices (District Attorney, City Controller, Register of Wills, Sheriff, Clerk of Quarter Sessions Court and City Commissioner), to increase the limit to $2500 on contributions made by "individuals" and to increase the limit to $10,000 on contributions made by persons other than the individuals covered under Section 20-1002(1) and by political action committees. The Ordinance was amended December 1, 2005 (Bill No. 050014) to require candidates for local elective office, treasurers of political committees and others to file campaign finance reports with the Board of Ethics.

The Ordinance was amended again on October 26, 2006 (Bill No. 060629), inter alia, to define a "candidate" as either "(a) [a]n individual who files nomination papers or petitions for City elective office; [or] (b) [a]n individual who publicly announces his or her candidacy for City elective office." Section 20-1001. The Ordinance also provided that if campaign contributions from a candidate's personal resources total $250,000 or more then the limits on contributions for all other candidates for that office shall double. Section 20-1002. The Mayor signed Bill No. 060629 on November 16, 2006. See full text of the Ordinance attached to this Opinion as "Appendix A."

Nutter averred in his complaint that the Ordinance was enacted in response to the "pay-to-play" culture that permeated City politics to the detriment of the public and the City and that the public campaign reports filed by Dougherty, Evans and Fattah each show campaign contributions of varying amounts that were received by them in violation of the Ordinance contribution limits. Nutter also averred that City Council intended to follow the definition of "candidate" in the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591, and that, although the campaign reports do not state that they relate to the Mayoral campaign, the Defendants filed their reports with the understanding that they are candidates for purposes of campaign finance laws and have formed committees to raise funds.

In Count I Nutter sought a declaration under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, that the Defendants must abide by the campaign contribution limits. Nutter averred that an actual case and controversy existed by virtue of the Defendants' statements and conduct and that declaratory relief is warranted to ensure that Nutter's compliance with the Ordinance does not cause him harm. In Count II he sought an injunction directing the Defendants to cease soliciting and accepting illegal campaign contributions and to return contributions that violated the Ordinance. Count III sought attorney fees. The Defendants filed answers denying, inter alia, that they took illegal campaign contributions or misled anyone with regard to the Ordinance. Each averred that he would comply if the Ordinance were declared constitutional. Dougherty, Fattah and Evans filed New Matter raising the preemption defense and Nutter's failure to aver facts to show that City Council intended to adopt the Election Code's definition of "candidate."

Dougherty filed a counterclaim averring in Count I that Nutter had violated Section 10-107(5) of the Philadelphia Home Rule Charter (Home Rule Charter), prohibiting any city officer or employee from being a candidate for public office unless the city officer or employee has first resigned his or her office or employment and imposing a one-year sanction against holding public office in the City for violating the provision. Dougherty sought an injunction to compel Nutter to resign his Council seat and to enjoin him from being a candidate in any City election for a period of one year. In Count II Dougherty sought a declaration that the Ordinance was unconstitutional and was preempted by the Election Code.

The trial court overruled Nutter's preliminary objections to Count II of the counterclaim, and upon consideration of the parties' supplemental pleadings, the trial court dismissed Count I of the counterclaim on September 27, 2006 as being moot because Nutter had resigned his City Council seat on July 7, 2006. Because the term for the new Mayor would begin in January 2008, the trial court reasoned that any sanction against Nutter for violating Section 10-107 of the Home Rule Charter would end by July 2007, or one year from the date he resigned his seat. The next day, on September 28, 2006, the trial court overruled the City's preliminary objections, which Nutter had joined, concluding that valid issues of law had been raised with regard to preemption; the court then invited the named Defendants to file motions for judgment on the pleadings. Because of the October 2006 amendment to the Ordinance, Nutter discontinued his action, but the matter was not ended because under Pa. R.C.P. No. 232(a) the discontinuance did not affect Dougherty's right to proceed with Count II of his counterclaim.

In its December 2006 opinion, the trial court began its analysis with reference to a fundamental principle stated by the Pennsylvania Supreme Court in Commonwealth ex rel. Truscott v. City of Philadelphia, 380 Pa. 367, 111 A.2d 136 (1955), that municipalities are not sovereigns and have no original or fundamental power of legislation and may enact only those ordinances authorized by the Pennsylvania Constitution or by enabling acts of the legislature. After reviewing Truscott in the context of constitutional and statutory limitations on the powers of City Council, the trial court determined that the Supreme Court's decision to invalidate the ordinance in that case abolishing the board of revision of taxes was premised on a fundamental precept of statutory construction evidenced by the court's reliance upon state legislation authorizing City Council to legislate with respect to abolishing only certain specified local offices. The trial court applied the Latin maxim "expressio unius est exlusio alterius," translated to mean that "the mention of one thing implies the exclusion of another thing[,]" Cali v. City of Philadelphia, 406 Pa. 290, 308, 177 A.2d 824, 833 (1962), to conclude that the Ordinance was unconstitutional. In Cali the Supreme Court affirmed a final decree enjoining the City from filling a vacancy in the office of Mayor in an even-numbered year instead of an odd-numbered year as then required by Article VIII, Section 3 of the Constitution.

The trial court explained that Sections 1621-1642 of the Election Code, 25 P.S. §§ 3241-3260b, regulate campaign contributions and expenses and provide a comprehensive scheme identifying "what are considered contributions, who may or may not make contributions, in what form the contributions shall be made, how the contributions are to be recorded and reported, and sanctions for violating Sections of the Election Code." Trial Court, December 13, 2006, slip op. at 9. It determined that none of the sections granted a municipality the local option of enacting legislation to enlarge or contradict those sections. The trial court summarized its conclusions at page 10 of its opinion as follows:

1. The Pennsylvania Legislature has enacted, through the...