Reuther v. Del. Cnty. Bureau of Elections

• Decision Date: 26 October 2017
• Docket Number: No. 1365 C.D. 2017,1365 C.D. 2017
• Parties: Christine A. REUTHER and Ani Marie Diakatos, Appellants v. DELAWARE COUNTY BUREAU OF ELECTIONS and Christine Rossi
• Court: Pennsylvania Commonwealth Court

172 A.3d 738

Christine A. REUTHER and Ani Marie Diakatos, Appellants

v.DELAWARE COUNTY BUREAU OF ELECTIONS and Christine Rossi

No. 1365 C.D. 2017

Commonwealth Court of Pennsylvania.

Submitted on Briefs: October 6, 2017

Decided: October 26, 2017

Publication Ordered November 7, 2017

Benjamin R. Picker, and Dianne G. Moretzsohn, Devon, PA, for Appellants.

Francis J. Catania, Media, PA, for Appellee Delaware County Bureau of Elections.

Robert M. Firkser, Media, PA, for Appellee Christine Rossi.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge¹ , HONORABLE ANNE E. COVEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE BROBSON

Christine A. Reuther and Ani Marie Diakatos (Objectors) appeal from an order of the Court of Common Pleas of Delaware County (trial court), dated September 19, 2017, denying their Emergency Petition for Relief Regarding the November 2017 General Election (Petition), seeking to strike Christine Rossi (Candidate) from the general election ballot. The two issues before this Court are: (1) whether the Petition was timely filed; and (2) whether Candidate's failure to file her Statement of Financial Interests (SOFI) with Nether Providence Township (Township) is a fatal defect. We now affirm.

The facts of this case are not in dispute. Candidate received sufficient votes in the Township's May 17, 2017 primary as a write-in candidate to win the Republican nomination for Township Tax Collector. The Delaware County Bureau of Elections (Bureau) notified Candidate that she was certified as the Republican nominee and instructed her to submit her SOFI to the Bureau and the Township by June 30, 2017, in order to have her name appear on the general election ballot. (See Certified Record (C.R.), Petition at Ex. A (June 2, 2017 Letter).) On June 30, 2017, Candidate timely filed her SOFI with the Bureau but not the Township.

Based upon a Right-to-Know Law² request made to the Township on September 6, 2017, Objectors learned that Candidate had not filed her SOFI with the Township. On September 13, 2017, Objectors filed the Petition with the trial court. On September 14, 2017, Candidate filed her SOFI with the Township. The trial court conducted a hearing on September 18, 2017. On September 18, 2017, Candidate filed an answer with new matter to the Petition. On September 19, 2017, the trial court denied the Petition because there is no "statutory provision making [Candidate's] filing of her [SOFI] either improper or a fatal defect to her candidacy." (Trial Ct. Op. at 3.) Objectors appealed to this Court.³

As a preliminary matter, we must determine whether Objectors' Petition was timely filed.⁴ Candidate and the Bureau argue that Objectors' Petition was untimely because it was filed more than 70 days after Candidate's nomination was certified. They assert that Section 977 of the Pennsylvania Election Code (Election Code)⁵ makes clear that objections to nomination petitions and papers must be filed "within seven days after the last day for filing said nomination petition or paper."⁶ Notably, there is no similar provision in the Election Code⁷ for challenges to write-in candidates.⁸ Under the circumstances, Candidate and the Bureau suggest that because Section 977 of the Election Code makes the objection deadline seven days from the candidate's last date to make public his/her intention to run for office by filing the necessary nomination petitions or papers, in this instance Objectors should similarly have until seven days after Candidate's 30–day deadline to show her intention to be a general election candidate.

First, "[c]itizens of the Commonwealth are free to cast their vote for their candidate of choice, by write-in or otherwise." Working Families Party v. Commonwealth , 169 A.3d 1247, 1259 (Pa. Cmwlth. 2017). Further, Section 922 of the Election Code, as amended, 25 P.S. § 2882, specifies that "[c]andidates ... who receive a plurality of votes of their party electors ... in the political district ... at the primary election ... shall be candidates of their respective parties, and it shall be the duty of the proper county boards to print their names upon the official ballots ... at the succeeding election."

In this case, Candidate did not seek ballot access by filing a nomination petition in advance of the primary that made public an intention to be nominated by the Republican party.⁹ Rather, the Township's qualified Republican electors nominated Candidate by write-in and declared by popular vote that she is the party's candidate for Tax Collector in the general election. Under such circumstances, the primary election is over, and the majority of the Republican electors have spoken. So long as Candidate took the steps necessary to have her name placed on the general election ballot, she would be the Republican candidate for Township Tax Collector.

Moreover, in In re Nomination Petition of Guzzardi , 627 Pa. 1,99 A.3d 381 (2014),¹⁰ the Pennsylvania Supreme Court made abundantly clear:

Elections are appropriately regulated by the political branch precisely because they are inherently political. This essential legislative governance fosters orderly, efficient, and fair proceedings. In this regard, statutory filing requirements and attendant deadlines 'ensure the orderly functioning of the primary-election timetable so that those responsible will have sufficient time to prepare the ballot properly.' Gomes v. Rhode Island State Bd. of Elections , ... 120 R.I. 951, 393 A.2d 1088, 1090 ( [R.I.] 1978).

In re Guzzardi , 99 A.3d at 385. Accordingly,

the judiciary should act with restraint, in the election arena, subordinate to express statutory directives. Subject to constitutional limitations, the Pennsylvania General Assembly may require such practices and procedures as it may deem necessary to the orderly, fair, and efficient administration of public elections in Pennsylvania.... Pennsylvania courts may not mitigate the legislatively[-]prescribed outcome through recourse to equity.

Id. at 386 (emphasis added). The Supreme Court has also admonished:

We note that, 'when interpreting a statute we must listen attentively to what the statute says, but also to what it does not say.' Johnson v. Lansdale Borough , 146 A.3d 696, 711 (Pa. 2016). In other words, 'it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include .' Commonwealth v. Johnson , ... 611 Pa. 381, 26 A.3d 1078, 1090 ( [Pa.] 2011).

Hanaway v. Parkesburg Grp., LP , 168 A.3d 146, 154 (Pa. 2017) (emphasis added). Thus, where the General Assembly did not impose a deadline on when objectors may challenge the validity of a person's write-in candidacy, this Court is prohibited from doing so. As discussed above, an individual seeking to be a party's nominee is different and distinct from a write-in candidate. The Election Code expressly regulates the steps an individual must adhere to in order to have his or her name placed on the primary ballot. The General Assembly has not promulgated similar procedures for write-in candidates. Accordingly, because no statutory deadline exists by which Objectors had to object to Candidate's write-in candidacy, we hold that the Petition was timely (or more accurately not untimely) filed on September 13, 2017.

Relative to the substance of Objectors' challenge that Candidate's failure to file her SOFI with the Township is a fatal defect, there is no question that SOFI filings are mandatory before a candidate may hold public office.¹¹ The General Assembly specifically pronounced in Section 1104(d) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1104(d) : "No public official shall be allowed to take the oath of office or enter or continue upon h[er] duties, nor shall [s]he receive compensation from public funds, unless [s]he has filed a [SOFI] as required by [the Ethics Act]."

With regard to a candidate filing a petition to appear on the ballot, Section 1104(b) of the Ethics Act, 65 Pa. C.S. § 1104(b), requires the filing of a SOFI. It provides, in relevant part:

(2) Any candidate for county-level or local office shall file a [SOFI] for the preceding calendar year with the governing authority of the political subdivision in which [s]he is a candidate on or before the last day for filing a petition to appear on the ballot for election. A copy of the [SOFI] shall also be appended to such petition.

(3) No petition to appear on the ballot for election shall be accepted by the respective State or local election officials unless the petition has appended thereto a [SOFI] as set forth in paragraphs (1) and (2). Failure to file the [SOFI] in accordance with the provisions of this chapter shall, in addition to any other penalties provided, be a fatal defect to a petition to appear on the ballot.

65 Pa. C.S. § 1104(b) (emphasis added). Accordingly, an individual seeking to be placed on the ballot who fails to file his/her SOFI with his/her nomination petitions or papers and with the governing body of the local political subdivision must have his/her name stricken from the ballot when timely challenged.¹² See Guzzardi . Section 1104(b) of the Ethics Act specifically applies to persons who become candidates by filing nomination petitions or papers. The Ethics Act, however, does not contain a similar provision applicable to write-in candidates.

Nevertheless, Section 15.3(e) of the Ethics Commission's regulations, 51 Pa. Code § 15.3(e), addresses the filing of a SOFI by write-in candidates. It mandates:¹³

A write-in[ ]candidate shall file a [SOFI] within 30 days of having been nominated or elected unless the person declines the nomination or office within that period of time.^[14]

(1) The [SOFI] shall be filed with the [Ethics] Commission for State[-]level public office and with the governing authority of the political subdivision wherein the person has been elected or nominated for county or local level office .

(2) For the purposes of calculating the

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