In Re Nomination Petition of Farnese

17 A.3d 375, 609 Pa. 573, 2011 Pa. LEXIS 682

Opinions

OPINION IN SUPPORT OF PER CURIAM ORDER

justice McCaffery.

In 2008, Appellee, Lawrence Farnese, Jr., then a candidate for state senator, filed a nomination petition to be on the Democratic Party’s primary election ballot. Pursuant to 25 P.S. § 2872.1(13), a nomination petition for that office must contain at least 500 signatures, and Appellee’s petition contained 1778 signatures. When the validity of the signatures was challenged on a number of grounds in the Commonwealth Court, Appellee withdrew 934 signatures on the advice of counsel, who agreed that the withdrawn signatures were invalid because they had not been procured in the actual presence of the circulators of the signature pages. During the course of litigation, Appellee stipulated that an additional 143 signatures were invalid. Ultimately, the Commonwealth Court denied the petition of objectors, Appellants Keith 01-kowski and Theresa A. Paylor, to set aside Appellee’s nomination petition, and they appealed to this Court.

On April 8, 2008, we entered a per curiam order on an expedited basis permitting Appellee to remain on the primary election ballot. In re Nomination Petition of Farnese, 605 Pa. 375, 989 A.2d 1274 (2008) (Farnese I). We entered the order despite our concerns that Appellee had submitted and then withdrawn or stipulated to the invalidity of the majority of the signatures contained in his nomination petition.¹ In our per curiam order, we stated that an opinion would follow, and this opinion now addresses Appellants’ issues on appeal, and expresses our concern that a candidate for office should not be permitted to submit a nomination petition that contains mostly illegitimate signatures without doubt being cast upon the propriety of the candidate’s entire signature procurement process.

As a matter of election law procedure, each circulator of a signature page contained in a candidate’s nomination petition must attach a separate affidavit declaring, among other things, that the signers thereto actually personally signed the petition with full knowledge of the contents of the petition.² This Court has held that in order to verify this information, the circulator needs to be present when each signer agrees to sign the petition. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327, 336 (2001).

In this matter, Appellants sought to establish pervasive fraud in the circulators’ procurement of signatures on the nomination petition for Appellee. At the hearing on their petition to set aside the nomination petition, Appellants sought to admit into evidence a report prepared by a private detective that contained affidavits from persons whose signatures had been procured or purportedly procured by the persons circulating the signature pages. Some of the signers affirmed that the circulator of the petition had indicated to them that the petition was to upgrade a neighborhood playground. Other signers affirmed that the circulator had indicated to them that the candidate was an African American, and that the circulator had shown them a photo of an African American male who was supposedly that person. Other purported signers affirmed that the signature contained on the signature page was not their signature. Other signers affirmed that the circulator had told them it was permissible to sign the names of others in their household who were not home at the time, and that the signers did, in fact, sign for those absent household members based on that representation. The court ruled that the report of the detective was inadmissible because “allegations of a pattern of fraud are immaterial in a case involving objections to nomination papers and that such allegations will be disregarded.” In re Nomination of Farnese, 945 A.2d 274, 278 n. 10 (Pa.Cmwlth.2008) (Farnese II).3

Additionally, Appellee filed a motion in limine to preclude Appellants from presenting any evidence relating to the twenty-two signature pages that Appellee had withdrawn. Conversely, Appellants sought to present evidence of the withdrawn pages in support of their claims of fraud, because the circulators of many of the withdrawn pages were also the circulators of the non-withdrawn pages to which individual signature challenges were being raised. Indeed, Appellants raised a “global” challenge and asked the court to dismiss all remaining pages of signatures procured by any circulator of a withdrawn page. In support of this request, Appellants sought to call the circulators as witnesses to probe their awareness of, and adherence to, the elements of Section 909 of the Election Code as affirmed in their circulator affidavits attached to the pages of signatures. The court disallowed this proposed area of inquiry, and ultimately ruled that any evidence relating to the withdrawn pages would have been irrelevant to whether the circulator affidavits or signatures on the non-withdrawn pages were valid. Farnese II, supra at 278.

In the end, Appellants conceded they could not prevail if the court rejected their “global” challenge, i.e., Appellants conceded that if the court would not invalidate the remaining non-withdrawn signature pages that had been procured by the same circulators who had procured the withdrawn pages, Appellee would then have had 539 presumptively valid individual signatures. To state it another way, Appellants conceded that even if they won each of their remaining challenges unrelated to the propriety of the circulator affidavits attached to the signature pages, Appellee would still have had a sufficient number of presumptively valid signatures to remain on the ballot.⁴

In this appeal, Appellants raise the following questions that we have paraphrased for the sake of brevity and clarity, and will address together:

1. Did the Commonwealth Court err in ruling that evidence of an alleged pattern of fraud was irrelevant to the proceedings to set aside the nomination petition?

2. Did the Commonwealth Court err in ruling that evidence regarding the circulators’ procurement of the withdrawn signatures could not be used to invalidate the non-withdrawn signatures procured by them?

First, and foremost, we must disagree with the Commonwealth Court’s assessment here that allegations of a pattern of fraud are immaterial in a case involving objections to a nomination petition. Significantly, in In re Nomination Petition of Nader, 865 A.2d 8 (Pa.Cmwlth.2004), on remand from this Court, a number of judges of the Commonwealth Court, sitting as fact-finders, conducted an extraordinary review of more than 50,000 signatures contained in the nomination petition of a candidate for President of the United States who sought to appear on the Pennsylvania ballot. The Commonwealth Court judges not only considered allegations of fraud, but actually found widespread fraud, and set aside the petition upon determining that it contained an insufficient number of legitimate signatures. Id. at 19. In that case, testimonial evidence was presented that showed how the circulators of the signature pages fraudulently procured, falsified, forged, and failed to authenticate signatures. Id. at 16. Among many other things, the court specifically found “that the campaign had knowledge that false signatures were submitted on the nomination papers.” Id. at 14. Given the gross irregularities in the procurement of signatures, the court felt “compelled” to offer the following observation:

... this signature gathering process was the most deceitful and fraudulent exercise ever perpetrated upon this Court. The conduct of the Candidates, through their representatives (not their attorneys), shocks the conscience of the Court. In reviewing signatures, it became apparent that in addition to signing names such as “Mickey Mouse,” “Fred Flintstone,” “John Kerry,” and the ubiquitous “Ralph Nader,” there were thousands of names that were created at random and then randomly assigned either existent or nonexistent addresses by the circulators.

Id. at 19 (aff'd, In re Nomination Paper of Nader, 580 Pa. 134, 860 A.2d 1 (2004), cert. denied, Nader v. Serody, 543 U.S. 1052, 125 S.Ct. 884, 160 L.Ed.2d 773 (2005)).

Where, as here, a candidate for office has agreed that 60.5 % of the signatures contained in his nomination petition are invalid, and the objectors to the petition have asserted fraud in the signature procurement process and are prepared to support those allegations with evidence, we cannot say, in light of Nader, supra, that the evidence would be immaterial to the disposition of the petition. Significantly, there is precedent from this Court to support the proposition that evidence regarding the procurement process is a legitimate factual inquiry, and that the existence of a large number of signature irregularities on a signature page may raise a reasonable inference that the circulator’s affidavit attesting to the legitimacy of the signatures is false. Citizen’s Com. to Recall Rizzo v. Bd. of Elections, et al, 470 Pa. 1, 367 A.2d 232, 241 (1976).⁵ The form of nominating petitions and their accompanying affidavits are not mere technicalities, but are necessary measures to prevent fraud and to preserve the integrity of the election process. In re Nomination Petition of Cianfrani, 467 Pa. 491, 359 A.2d 383, 384 (1976). The policy of liberally reading the Election Code cannot be distorted to emasculate the requirements of providing legitimate sworn affidavits. Id. Any falsity in an affidavit casts doubt on the accuracy of the entire affidavit, and, thus, the authenticity of the petition. Citizen’s Com. to Recall Rizzo, supra at 241.

While prudent candidates for office routinely procure more signatures on their nomination petitions than the number of signatures required by the Election Code, a candidate’s agreement that 60.5 % of the signatures that he or she procured are invalid should raise red flags for any court evaluating the process by which any and all of the signatures were procured. Our observation of this troubling circumstance in the instant matter leads to the truly dispositive question here: whether the Commonwealth Court properly denied Appellants’ request to invalidate the signatures that Appellee had not withdrawn on the basis that the signature petitions on which they appeared had been circulated by the same persons who circulated the petitions that Appellee had withdrawn.

On April 18, 2008, ten days after we entered the per curiam order in this case, we also entered a plurality per curiam order in a case that presented similar facts. In In re Payton, 596 Pa. 469, 945 A.2d 162 (2008), this Court, sitting with six members, entered a per curiam order stating that a court cannot presumptively invalidate nomination signatures based on nothing more than the invalidity of other signatures obtained by the same circulator. Justice Saylor filed a Concurring Statement, joined by Justice Todd and this writer, that began as follows: “The majority appears to interpret Section 976 of the Election Code, 25 P.S. § 2936, as establishing a broad-based principle foreclosing judicial inquiries into allegations of pervasive fraud in the submission of a nomination petition beyond a signature-by-signature review.” Justice Saylor, Justice Todd and this writer disagreed with that interpretation, and observed that this Court has accepted the notion that the inclusion of intentionally false information in a candidate’s affidavit is grounds for invalidating a nomination petition. Id. (Saylor, J. concurring) (citing In re Driscoll, 577 Pa. 501, 847 A.2d 44, 51 (2004)). Justice Saylor further observed that in his opinion, “the collection by the candidate himself of a substantial number of fraudulent signatures, as has been alleged here, including those of deceased individuals, would be strong circumstantial evidence of willful non-compliance with election law and false certification.” Id. Justice Todd and I agreed with Justice Saylor.

Justice Saylor, with whom Justice Todd and this writer agreed, went on to state his disagreement with the utilization of “a brief per curiam Order to signal this Court’s intention to undermine the viability of election challenges entailing allegations of pervasive fraud claimed to have been known to the candidate.” Id. Justices Saylor and Todd and this writer ultimately joined the disposition, but only in light of the fact that a specific challenge to the candidate’s affidavit and allegations of knowledge of fraud on his part, were not initially raised in the objectors’ petition to set aside, and in view of the Commonwealth Court’s credibility determination concerning the candidate’s testimony. Id.

Here, although Appellants’ brief to this Court includes numerous allegations that the tactics of the circulators to procure the allegedly illegitimate signatures were known to the candidate and the campaign manager, Appellants did not make this specific objection in their petition to set aside the nomination petition. Although the candidate himself was the circulator of six separate signature pages, none of those pages was withdrawn, and none of the signatures on those pages was stipulated to as invalid. Additionally, the rationale proposed by Appellants for the striking of signatures contained on the non-withdrawn pages procured by the circulators of the withdrawn pages conceded that a number of valid signatures would be stricken for the sake of punishing the fraud committed by the circulators.⁶ The Commonwealth Court found this proposed remedy troubling, and opined, “Here, if we would have adopted Objectors’ position, we would have stricken admittedly valid signatures on one page based on a defective Circulator Affidavit on another page.” Farnese II, supra at 278 (emphasis omitted).

Significantly, the case law of this Commonwealth that can be read to support the proposition that a false affidavit contained in a nomination petition may be egregious enough to void the petition altogether and remove the candidate from the ballot, applies to intentional and knowing falsehoods affirmed by the candidate personally that are designed to deceive the electorate. See In re Nomination of Driscoll, 577 Pa. 501, 847 A.2d 44, 51 (2004) (stating “before an affidavit may be declared void and invalid because it contains false information, there must be evidence that the candidate knowingly falsified the affidavit with an intent to deceive the electorate.”) (emphasis added). Accordingly, we now hold that allegations and evidence of fraud may be material to the determination of the validity of a nomination petition. Nevertheless, we reject Appellants’ second issue on appeal, as there was no specific allegation made, or evidence proffered, that the candidate himself affirmed in his petition any intentional and knowing falsehoods designed to deceive the electorate. The denial of Appellants’ petition to set aside the nomination petition of Appellee is affirmed.⁷

Justice GREENSPAN did not participate in the decision of this case. Justice TODD joins the Opinion in Support of Per Curiam Order. Chief Justice CASTILLE files a concurring opinion. Justice SAYLOR files a concurring opinion. Justice EAKIN files a concurring opinion in which Justice BAER joins.

1 . Our order affirmed the Commonwealth Court’s denial of Appellants’ petition to set aside Appellee’s nomination petition, without prejudice to Appellants’ right to seek review of any future final order imposing costs. We remanded with directions for the Commonwealth Court to explain its rationale if it chose to impose costs. On remand, the court imposed costs and Appellants filed an appeal from the imposition of costs at No. 13 EAP 2008. We reversed on the basis that the facts did not support a finding that an award of costs was just. In re Nomination Petition of Farnese, 17 A.3d. 357 (Pa.2010) (Farnese III).

2 . Section 909 of the Election Code requires that each signature sheet shall have appended thereto the affidavit of the circulator of each sheet, and this Court has recognized that the language in Section 909, 25 P.S. § 2869, unambiguously requires that the circulator affirming the petition be aware of five criteria about each individual signer: (1) the signer signed the petition with full knowledge of its contents; (2) the signer’s address is correct; (3) the signer resides in the county in the affidavit; (4) the signer signed the petition on the date set forth; and (5) to the best of the circulator's knowledge and belief, the signer was a qualified elector and a member of the party claimed on the petition. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327, 336 (2001).

3 . Although the report was not admitted as substantive evidence, it is of record. The court admitted the report "to make the record ... because we have not had testimony in certain areas, [so] that the Supreme Court knows that [Appellants have] not waived those issues and that they’re preserved for that purpose and that purpose alone.” Notes of Testimony ("N.T.”), Hearing, 3/7/08, at 67-68.

4 . Appellants maintained that 324 of the 701 signatures remaining after Appellee’s stipulations and withdrawals (1778 - 934 - 143 = 701) were invalid, and that 162 of those 324 signatures were invalid for reasons other than that the circulator of the signature page had also circulated a signature page that had been withdrawn. Thus, given the court's ruling, even if Appellants had prevailed on each of those unrelated challenges, Appellee still would have had a requisite number of signatures (701 - 162 = 539). We note that the Commonwealth Court calculated the total number of remaining presumptively valid signatures using a different formula and arrived at the number of 532. The difference is immaterial, as both resulting totals are greater than the amount necessary to support the petition, and Appellants conceded they could not prevail under the circumstances.

5 . Although the main holding in the case, that the recall provisions in the Philadelphia Home Rule Charter are unconstitutional, represented a plurality of the Court, the proposition cited here commanded a majority view.

6 . Counsel for Appellants argued at the hearing "I just want to note that part of our argument [is] the broad public policy ... that this kind of conduct has got to stop, and the only way I know how to stop it is a court ruling penalizing circulators who provide bad affidavits from then being rewarded with other petitions where arguably they are good.” N.T., supra at 33 (emphasis added).

7 . The Chief Justice states in his concurring opinion that we stray significantly from the parties' arguments, and suggests that the objectors here presented a "single narrow theory.” (Castille, C.J., concurring, Op. at 592-93, 17 A.3d at 387). The “narrow" question posed, as we see it, is whether the non-withdrawn pages could be invalidated on a broader "false-in-one-false-in-aH” theory. Appellants had hoped to support their "false-in-one-false-in-all" theory by presenting evidence of a pervasive pattern of fraud on the part of the circulators. On the basis that any and all allegations of fraud are irrelevant in determining the propriety of nomination petitions, the trial court did not permit this evidence, or any evidence regarding the circulators' conduct or knowledge of the Election Code, and one of the central allegations on appeal is that the court erred in this ruling. In our discussion of the issues, we do not make any presumption of fraudulent conduct with respect to the withdrawn signatures. Instead, among other things, we point out that at the time the trial court made its ruling, Pennsylvania law clearly supported the proposition that a candidate's fraudulent conduct may nullify a nomination petition, a proposition reiterated by the concurring Opinion in In Re Payton, which was decided by an evenly divided Court ten days after our per curiam order in the present matter. There were serious allegations in this matter concerning the alleged improper conduct of the circulators in procuring signatures for the candidate's nomination petition. The point we make is that had the allegations been more squarely tied to facts tending to show the candidate’s awareness and acceptance of these irregularities, the evidence would have been relevant to the important question of whether the electorate had been deceived and whether the candidate should be on the ballot.