In re the Nomination Petition of Boyle

91 A.3d 260, 2014 WL 2117847, 2014 Pa. Commw. LEXIS 281
Commonwealth Court of Pennsylvania·Decided March 31, 2014·Published

Opinion

OPINION BY

Senior Judge COLINS.

This matter is a petition filed by Michelle Szydlowski (Objector) to set aside the nomination petition of Brendan F. Boyle (Candidate) as a candidate for the position of Representative in the Pennsylvania General Assembly, 170th Legislative District, in the May 20, 2014 Democratic primary. An evidentiary hearing on the petition to set aside was held before this Court on March 27, 2014, following which the Court denied Objector’s challenge to Candidate’s nomination petition and entered an Order dismissing the petition to [262] set aside. This Opinion sets forth the reasons for the Court’s decision.

Candidate’s nomination petition consists of 86 pages containing a total of 1,054 signatures. Section 912.1(14) of the Pennsylvania Election Code1 provides that a nomination petition for the office of Representative in the Pennsylvania General Assembly must contain at least 300 valid signatures. 25 P.S. § 2872.1(14). Candidate, the incumbent Representative for this legislative district, is unopposed in the May 20, 2014 primary. No other candidate has filed any nomination papers for this office. Candidate has also filed nomination papers as a candidate for the United States House of Representatives in the 13th Congressional District in the May 20, 2014 primary.

Objector has not challenged the genuineness of any of the 1,054 individual signatures as signatures of registered Democratic voters residing in the 170th Legislative District and has not alleged any impropriety in the gathering of any of the signatures on Candidate’s nomination petition. Objector, however, has challenged 68 pages of the nomination petition and contends that the 833 signatures on those pages are invalid on the ground that those pages were notarized by a notary public who is a member of Candidate’s legislative staff. Because the unchallenged 18 pages of the nomination petition notarized by other notaries contain only 221 signatures, Objector asserts that Candidate’s nomination petition does not contain the required 300 valid signatures.

Pages 1-22, 24-34, 37-49, 59, 64-80, 82-84, and 87 of Candidate’s nomination petition were notarized by Nicholas Hime-baugh.2 (Stipulation ¶ 4.) Those pages contain 833 signatures. (Stipulation ¶ 2.) Mr. Himebaugh was not a circulator of any of those pages of the nomination petition: (Stipulation ¶ 9.) Mr. Himebaugh is Candidate’s legislative assistant in his local district office. (Stipulation ¶¶ 3,' 5; Exhibit P-14.) Mr. Himebaugh, however, is employed and paid by the Pennsylvania House Democratic Caucus (Caucus), not by Candidate. (Stipulation ¶¶ 5-6; Exhibit P-14; Exhibit R-2.) The Caucus has the authority to hire, fire, transfer or reassign Mr. Himebaugh, and his employment with the Caucus could continue by reassignment if Candidate is not reelected. (Stipulation ¶¶ 6-7.)

The only witness who testified at the hearing in this matter was Nicholas Hime-baugh, whom Objector called to testify on cross-examination. Mr. Himebaugh testified that he notarized pages of Candidate’s 170th Legislative District nomination petition, and that he performed these notariza-tions at Candidate’s campaign office. Mr. Himebaugh did not circulate any pages of Candidate’s 170th Legislative District nomination petition. Mr. Himebaugh testified that he circulated pages of Candidate’s congressional nomination petition and of the nomination petition of State Representative Kevin Boyle, Candidate’s brother, in whose legislative district Mr. Himebaugh resides. Mr. Himebaugh testified that he also notarized pages of both of the congressional and Kevin Boyle petitions that he did not circulate.

[263] Mr. Himebaugh testified that he performed all of his notarizations of campaign petitions outside of working hours. That testimony is corroborated by the documentary evidence and record. All but one of the 68 pages of Candidate’s 170th Legislative District nomination petition that Mr. Himebaugh notarized, and all but three of the pages of the congressional and Kevin Boyle petitions that Objector introduced in evidence, were notarized on March 8 and 9, 2014, a Saturday and Sunday. There is no evidence suggesting that any of those other four petition pages, which were notarized on March 10, 2014, were notarized during the work day. Mr. Himebaugh testified that he volunteered on his own initiative to circulate petitions for Candidate’s congressional candidacy and for his legislative representative, Kevin Boyle, and that he circulated those petitions on evenings and weekends. Mr. Himebaugh testified that he also filed supplemental pages of Candidate’s congressional petition and a few supplemental pages of Candidate’s 170th Legislative District nomination petition in Harrisburg on March 11, 2014. That activity was on his own personal time; the Caucus’s employment records show that Mr. Himebaugh requested leave to take that day off from work. (Exhibit P-18.)

Mr. Himebaugh’s notary commission was originally paid for by the Caucus, but Mr. Himebaugh on March 6, 2014 paid the Caucus the cost of his notary commission to buy his commission back. (Exhibit R-3.) Mr. Himebaugh testified that the Caucus prohibits employees from notarizing campaign documents if the notary commission is paid for by the Caucus, but does not prohibit such notarizations where the notary has bought his commission back from the Caucus, provided that the notarizations are done outside of business hours and are not done at the office. This testimony is likewise corroborated by the documentary evidence. Mr. Himebaugh’s agreement with the Caucus buying back his commission states that “the Caucus requires that the notarization of any political campaign nomination petitions or papers must occur on the notary’s own time and away from the office.” (Exhibit R-3.) All of Mr. Himebaugh’s petition notarizations were after March 6, 2014.

Having heard and considered all of the testimony and other evidence introduced at the hearing, the Court finds that Mr. Himebaugh’s testimony is fully credible in its entirety. The Court finds that Mr. Himebaugh’s notarizations and campaign activities were on his own time and that there was no impropriety in those activities. Indeed, Mr. Himebaugh’s circulation of nomination petitions for Candidate’s congressional campaign and for Kevin Boyle, as a volunteer on his own time, was an exercise of his fundamental First Amendment rights. Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 186, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Meyer v. Grant, 486 U.S. 414, 421-22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988); Morrill v. Weaver, 224 F.Supp.2d 882, 897-99 (E.D.Pa.2002).

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In re the Nomination Petition of Boyle, 91 A.3d 260, 2014 WL 2117847, 2014 Pa. Commw. LEXIS 281 (Pa. Ct. App. 2014).

91 A.3d 260 (In re the Nomination Petition of Boyle) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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