In re Audit of Campaign Expense Statements

639 A.2d 875, 162 Pa. Commw. 430, 1994 Pa. Commw. LEXIS 104
CourtCommonwealth Court of Pennsylvania
DecidedMarch 10, 1994
StatusPublished
Cited by3 cases

This text of 639 A.2d 875 (In re Audit of Campaign Expense Statements) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Audit of Campaign Expense Statements, 639 A.2d 875, 162 Pa. Commw. 430, 1994 Pa. Commw. LEXIS 104 (Pa. Ct. App. 1994).

Opinions

KELLEY, Judge.

Eight registered electors of Upper Mount Bethel Township (Electors) appeal from an order of the Court of Common Pleas of Northampton County (trial court) dismissing their election audit appeal.1

In May 1991, a primary election was held in Upper Mount Bethel Township, Northampton County, Pennsylvania, for the purpose of electing Republican and Democratic candidates for two township supervisor positions. Sections 1625, 1626, 1626.1 and 1627 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333 (Election Code), as amended, 25 P.S. §§ 3245, 3246, 3246.1 and 3247, relate to filing requirements for candidates, political committees and lobbyists of election campaign receipts and/or expenditures. Of the nine candidates, only one campaign committee, representing two candidates, and two individual candidates filed campaign expense statements with the Northampton County Board of Elections. Other campaign expense statements were filed by “lobbyists”.

On September 17, 1991, the Electors filed a petition for audit of campaign expense statements, election reports and affidavits, pursuant to section 1636(a) of the Election Code, 25 P.S. § 3256(a).2 The petition requested that the court audit the campaign [877]*877contributions, election expenses and reports filed by thirteen people involved in the primary election.

At the initial hearing on October 16, 1991, the trial court ordered the expense accounts certified and scheduled an audit hearing for the non-jury trial list during January 1992.

One of the individuals named in the audit petition as having failed to file an expense statement petitioned for the appointment of an auditor and also petitioned that Electors be required to file security for costs pursuant to section 1636(a) of the Election Code. On November 8, 1991, the trial court denied this petition with respect to an appointment of an auditor without prejudice to any party to petition for reconsideration upon a showing of the financial issue. In addition, the trial court denied the petition to require security for costs without prejudice.

However, the trial court sua sponte scheduled another hearing to reconsider its order of November 8, 1991 and, after that hearing, reversed its position. By order dated November 11, 1991, the trial court required the Electors to post security in an amount not less than $15,000.00 and appointed an auditor, Michael P. Shay, Esq., setting his compensation at $800.00 per day ($100.00 an hour for eight hours work per day) for each day that he was actually engaged in the audit. Thereafter, Electors sought reconsideration of the trial court’s decision or, in the alternative, permission to appeal the court’s interlocutory order; both requests were denied.

On January 14, 1992, the trial court heard the appellees’ motion to dismiss the audit appeal. At the hearing on this motion, one Elector presented testimony to the effect that some of the eight Electors could not afford their share of the security. The trial court held that the failure of the Electors to testify as a group, as to why they could not afford to post their shares of the bond with a suitable insurance company, coupled with the fact that the single witness who did testify, Ronald Angle, admitted that he was able to afford his share, but had not posted it, rendered the testimony of the electors incredible. The trial court dismissed the Electors’ petition for reconsideration and dismissed the petition for audit for failure to prosecute. (Trial ct. op. at 5.) Electors appealed to this court.

On appeal,3 Electors raise the following issues:

1. Whether the trial court abused its discretion in requiring Electors to post a bond in the amount of $15,000.00;
2. Whether the trial court abused its discretion in establishing compensation in the amount of $800.00 per day for services of an auditor;
3. Whether the trial court abused its discretion in appointing an auditor to take testimony and to determine issues of credibility pursuant to section 1636(a) of the Election Code; and
4. Whether the trial court order of November 22, 1991 violated Electors right to due process and equal access to the courts as afforded by the United States Constitution and the Pennsylvania Constitution.

This court will address the first three issues raised by Electors in seriatim. Electors argue that the trial court abused its discretion by appointing an auditor in the first place because the expertise of an auditor is not necessary. Even if the appointment of the auditor were to be upheld, they contend that the amount of compensation is too high and that the bond requirement is arbitrary, capricious and confiscatory. Those to be audited counter that the trial court acted within its statutory mandate and did not abuse its discretion.

We begin our analysis by reiterating the principle enunciated by our Supreme Court: The Election Code should be liberally construed to carry out the evident legislative intent that expense accounts of candidates for public office be subject to closest scrutiny. In re Shapp, 476 Pa. 480, 383 A.2d 201 (1978). Rather than liberally interpreting the Election Code in favor of the Electors as [878]*878audit petitioners to carry out this legislative intent, the trial court balanced the interest of the various parties stating:

[W]e have carefully considered the interests of the audit petitioners in access to the Court, and the interest of the public in elections free of fraud.... Further, we have considered the interest of the targets of the audit, including the chilling effect that outstanding litigation may have on the exercise of authority by the individual who received the plebiscite. In addition, we have considered the interest of the public in seeing that those whom they have elected be allowed to serve without undue interference. Having balanced all these interests, we conclude that the mischief arising from the delay of justice outweighs objection to security of costs.4

(Trial ct. op. at 5.)

The trial court erred by concerning itself with the interests of the targets of the audit rather than the paramount interest of the public to an election free of fraud. However, this error was harmless in that it did not infect the trial court’s determination on the specific issues raised by this appeal.

First, section 1636(a) of the Election Code, 25 P.S. § 3256, clearly confers the trial court with discretion to appoint an auditor subject only to the proviso that the fees be reasonable. The trial court explained in its opinion dismissing the Electors audit petition that he appointed an auditor to speedily conduct the requested audit as prior scheduling commitments made it impossible for the trial court to complete hearings on the audit in a timely manner. Clearly such appointment by the trial court was consistent with the letter and spirit of the Election Code. As the trial court pointed out, the language of section 1636(a) requires the trial court to “fix a day as early as may be convenient for the audit.” 25 P.S. § 3256(a). Therefore, the trial court did not abuse its discretion in appointing an auditor in the present case.

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Related

In re Petition to Audit Campaign Finance Reports of Cartwright
900 A.2d 448 (Commonwealth Court of Pennsylvania, 2006)
In re Campaign Expense Reports of Corignani
873 A.2d 790 (Commonwealth Court of Pennsylvania, 2005)

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639 A.2d 875, 162 Pa. Commw. 430, 1994 Pa. Commw. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-audit-of-campaign-expense-statements-pacommwct-1994.