IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James D. Lewis, Jr. : and James P. Ryan, Jr., : : Appellants : : v. : No. 859 C.D. 2018 : Submitted: August 3, 2018 Philadelphia County Board : of Elections :
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE WOJCIK FILED: August 13, 2018
James D. Lewis, Jr. and James P. Ryan, Jr. (collectively, Objectors), Democratic Committeepersons elected in the City of Philadelphia’s (City) 58th Ward, 41st Division, appeal the order of the Philadelphia County Court of Common Pleas (trial court) dismissing their appeal of the decision of the Philadelphia County Board of Elections (Board) computing and/or certifying 11 other Democratic Committeepersons in the City’s 58th Ward1 following the May 16, 2018 General Primary Election. We affirm.
1 Objectors challenge the election of the following Democratic Committeepersons: (1) Melvine Kriesman in the 58th Ward, 2nd Division; (2) Anna Hickson in the 58th Ward, 3rd Division; (3) James McLaughlin in the 58th Ward, 3rd Division; (4) Lon Weisman in the 58th Ward, 8th Division; (5) Marimama Abraham in the 58th Ward, 13th Division; (6) Katherine Following their election as Democratic Committeepersons for the City’s 58th Ward, 41st Division, Objectors ran for the offices of Ward Leader and Ward Chair at their Ward’s Organizational Meeting, losing by one vote.2 On May 31, 2018, Objectors filed the instant appeal in the trial court pursuant to Section 1407 of the Election Code,3 alleging that each of the challenged Democratic
Montgomery in the 58th Ward, 27th Division; (7) Benji Eisenstein in the 58th Ward, 27th Division; (8) Cynthia German in the 58th Ward, 32nd Division; (9) Marshall Leibovitz in the 58th Ward, 37th Division; (10) Veronica Fossett in the 58th Ward, 43rd Division; and (11) Paul Karetny in the 58th Ward, 18th Division. Objectors later withdrew their challenges to the election of James McLaughlin and Anna Hickson.
2 Section 812 of the Election Code, Act of June 3, 1937, P.L. 1333, added by the Act of June 14, 1947, P.L. 610, 25 P.S. §2842, states:
Whenever two or more members of a political party shall be elected or appointed, as the rules of the party may provide, as members of a political committee to represent the members of such party in the respective election districts, such members shall constitute a political committee of said political party to function within such election district: Provided, that, When acting in the capacity of a political committee, such duly elected or appointed members shall be subject to the control, direction and supervision of the political committee of which they are members.
Additionally, Rule II, Article 2, Section B of the Rules of the Democratic Party of the City and County of Philadelphia provides, “All members of the Ward committee representing certain districts shall during their term of office have the proper qualifications and be resident voters of the district they represent in the said Ward Committee.”
3 Section 1407(a) states, in relevant part:
(a) Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election, . . . may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court specified in this subsection, setting forth why he feels that an injustice has been done, and praying for
2 Committeepersons who were purportedly elected as “write-in” candidates4 did not receive the minimum number of votes at the election to hold that office as required by Section 1405 of the Election Code.5 Following two hearings, the trial court issued an order dismissing the appeal.6 In the opinion filed in support of its order, the trial court determined: (1)
such order as will give him relief. . . . Unless a recount or recanvas is made under section 1404(g), the appeal must be made to the court of common pleas of the proper county.
25 P.S. §3157(a). See also Section 1756 of the Election Code, 25 P.S. §3456 (“The commencement of proceedings in the case of contests of the . . . fifth class[] shall be by petition, which shall be made and filed, as herein required . . . . The petition shall concisely set forth the cause of the complaint, showing where it is claimed that the primary or election is illegal . . . .”).
4 Section 1101(4) of the Election Code defines “irregular ballot” as “the paper or other material on which a vote is cast on a voting machine for persons who do not appear on the ballot labels[.]” 25 P.S. §3001(4).
5 25 P.S. §3155. Section 1405 states, in pertinent part:
The county board, in computing the votes cast at any primary or election, shall compute and certify votes cast on irregular ballots exactly as such names were written, stamped, affixed to the ballot by sticker, or deposited or affixed in or on receptacles for that purpose, and as they have been so returned by the election officers. . . . In the primary, the county board shall not certify the votes cast on irregular ballots for any person for . . . local party office unless the total number of votes cast for said person is equal to or greater than the number of signatures required on a nomination petition for the particular office.
In turn, Section 912.1(35) of the Election Code, added by the Act of December 12, 1984, P.L. 968, as amended, 25 P.S. §2872.1(35), requires a total of 10 votes for the office of party committeeperson.
6 Committeeperson Eisenstein intervened in the appeal, and the City’s Democratic Committee; 1st Ward Republican Executive Committee; 36th Ward Republican Executive
3 Objectors lacked standing to initiate the appeal challenging the election under Section 1407 of the Election Code; (2) Objectors’ appeal under Section 1407 is procedurally improper because they do not challenge the computation of the write- in votes that were cast in the election; and (3) pursuant to Section 810 of the Election Code,7 committeepersons may be properly elected to office by a plurality of 10 or more write-in votes cast in an election. Objectors then filed the instant appeal.8
Committee; 1st Ward Republican Ward Leader; 36th Ward Republican Ward Leader; and the former Republican Ward Leaders participated as amici curiae.
7 Section 810 states, in pertinent part, “Candidates for other party offices, who receive a plurality of the votes of the party electors at a primary, shall be the party officers of their respective parties.” 25 P.S. §2840.
8 With respect to appeals involving Section 1407(a), this Court has explained:
[S]ection 1407(b) of the Election Code, 25 P.S. §3157(b), states that there shall be no appeal from the common pleas court. This section, enacted in 1937, no longer has force since the passage in 1976 of the Judicial Code, which grants this Court jurisdiction over appeals in Election Code cases. In addition, Section 1407(b) existed prior to the passage in 1968 of Article 5, Section 9 of the Pennsylvania Constitution, which provides that there “shall be a right of appeal from . . . an administrative agency to a court of record or to an appellate court . . . .” Further, the Supreme Court noted in In re Petition to Contest the General Election for District Justice in Judicial District 3603-03 Nunc Pro Tunc, [670 A.2d 629 (Pa. 1996)], that this Court obtained jurisdiction over appeals involving elections when it was created in 1970.
Dayhoff v. Weaver, 808 A.2d 1002, 1005 n.5 (Pa. Cmwlth.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James D. Lewis, Jr. : and James P. Ryan, Jr., : : Appellants : : v. : No. 859 C.D. 2018 : Submitted: August 3, 2018 Philadelphia County Board : of Elections :
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE WOJCIK FILED: August 13, 2018
James D. Lewis, Jr. and James P. Ryan, Jr. (collectively, Objectors), Democratic Committeepersons elected in the City of Philadelphia’s (City) 58th Ward, 41st Division, appeal the order of the Philadelphia County Court of Common Pleas (trial court) dismissing their appeal of the decision of the Philadelphia County Board of Elections (Board) computing and/or certifying 11 other Democratic Committeepersons in the City’s 58th Ward1 following the May 16, 2018 General Primary Election. We affirm.
1 Objectors challenge the election of the following Democratic Committeepersons: (1) Melvine Kriesman in the 58th Ward, 2nd Division; (2) Anna Hickson in the 58th Ward, 3rd Division; (3) James McLaughlin in the 58th Ward, 3rd Division; (4) Lon Weisman in the 58th Ward, 8th Division; (5) Marimama Abraham in the 58th Ward, 13th Division; (6) Katherine Following their election as Democratic Committeepersons for the City’s 58th Ward, 41st Division, Objectors ran for the offices of Ward Leader and Ward Chair at their Ward’s Organizational Meeting, losing by one vote.2 On May 31, 2018, Objectors filed the instant appeal in the trial court pursuant to Section 1407 of the Election Code,3 alleging that each of the challenged Democratic
Montgomery in the 58th Ward, 27th Division; (7) Benji Eisenstein in the 58th Ward, 27th Division; (8) Cynthia German in the 58th Ward, 32nd Division; (9) Marshall Leibovitz in the 58th Ward, 37th Division; (10) Veronica Fossett in the 58th Ward, 43rd Division; and (11) Paul Karetny in the 58th Ward, 18th Division. Objectors later withdrew their challenges to the election of James McLaughlin and Anna Hickson.
2 Section 812 of the Election Code, Act of June 3, 1937, P.L. 1333, added by the Act of June 14, 1947, P.L. 610, 25 P.S. §2842, states:
Whenever two or more members of a political party shall be elected or appointed, as the rules of the party may provide, as members of a political committee to represent the members of such party in the respective election districts, such members shall constitute a political committee of said political party to function within such election district: Provided, that, When acting in the capacity of a political committee, such duly elected or appointed members shall be subject to the control, direction and supervision of the political committee of which they are members.
Additionally, Rule II, Article 2, Section B of the Rules of the Democratic Party of the City and County of Philadelphia provides, “All members of the Ward committee representing certain districts shall during their term of office have the proper qualifications and be resident voters of the district they represent in the said Ward Committee.”
3 Section 1407(a) states, in relevant part:
(a) Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election, . . . may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court specified in this subsection, setting forth why he feels that an injustice has been done, and praying for
2 Committeepersons who were purportedly elected as “write-in” candidates4 did not receive the minimum number of votes at the election to hold that office as required by Section 1405 of the Election Code.5 Following two hearings, the trial court issued an order dismissing the appeal.6 In the opinion filed in support of its order, the trial court determined: (1)
such order as will give him relief. . . . Unless a recount or recanvas is made under section 1404(g), the appeal must be made to the court of common pleas of the proper county.
25 P.S. §3157(a). See also Section 1756 of the Election Code, 25 P.S. §3456 (“The commencement of proceedings in the case of contests of the . . . fifth class[] shall be by petition, which shall be made and filed, as herein required . . . . The petition shall concisely set forth the cause of the complaint, showing where it is claimed that the primary or election is illegal . . . .”).
4 Section 1101(4) of the Election Code defines “irregular ballot” as “the paper or other material on which a vote is cast on a voting machine for persons who do not appear on the ballot labels[.]” 25 P.S. §3001(4).
5 25 P.S. §3155. Section 1405 states, in pertinent part:
The county board, in computing the votes cast at any primary or election, shall compute and certify votes cast on irregular ballots exactly as such names were written, stamped, affixed to the ballot by sticker, or deposited or affixed in or on receptacles for that purpose, and as they have been so returned by the election officers. . . . In the primary, the county board shall not certify the votes cast on irregular ballots for any person for . . . local party office unless the total number of votes cast for said person is equal to or greater than the number of signatures required on a nomination petition for the particular office.
In turn, Section 912.1(35) of the Election Code, added by the Act of December 12, 1984, P.L. 968, as amended, 25 P.S. §2872.1(35), requires a total of 10 votes for the office of party committeeperson.
6 Committeeperson Eisenstein intervened in the appeal, and the City’s Democratic Committee; 1st Ward Republican Executive Committee; 36th Ward Republican Executive
3 Objectors lacked standing to initiate the appeal challenging the election under Section 1407 of the Election Code; (2) Objectors’ appeal under Section 1407 is procedurally improper because they do not challenge the computation of the write- in votes that were cast in the election; and (3) pursuant to Section 810 of the Election Code,7 committeepersons may be properly elected to office by a plurality of 10 or more write-in votes cast in an election. Objectors then filed the instant appeal.8
Committee; 1st Ward Republican Ward Leader; 36th Ward Republican Ward Leader; and the former Republican Ward Leaders participated as amici curiae.
7 Section 810 states, in pertinent part, “Candidates for other party offices, who receive a plurality of the votes of the party electors at a primary, shall be the party officers of their respective parties.” 25 P.S. §2840.
8 With respect to appeals involving Section 1407(a), this Court has explained:
[S]ection 1407(b) of the Election Code, 25 P.S. §3157(b), states that there shall be no appeal from the common pleas court. This section, enacted in 1937, no longer has force since the passage in 1976 of the Judicial Code, which grants this Court jurisdiction over appeals in Election Code cases. In addition, Section 1407(b) existed prior to the passage in 1968 of Article 5, Section 9 of the Pennsylvania Constitution, which provides that there “shall be a right of appeal from . . . an administrative agency to a court of record or to an appellate court . . . .” Further, the Supreme Court noted in In re Petition to Contest the General Election for District Justice in Judicial District 3603-03 Nunc Pro Tunc, [670 A.2d 629 (Pa. 1996)], that this Court obtained jurisdiction over appeals involving elections when it was created in 1970.
Dayhoff v. Weaver, 808 A.2d 1002, 1005 n.5 (Pa. Cmwlth. 2002), appeal denied, 819 A.2d 548 (Pa. 2003). On appeal, “[o]ur scope of review in election contest cases is limited to examination of the record to determine whether the trial court committed errors of law and whether the court’s findings were supported by adequate evidence.” Id. at 1005 n.4 (citation omitted).
4 Objectors first argue that the trial court erred in determining that they did not have standing to prosecute the appeal regarding the election of the challenged Democratic Committeepersons under Section 1407 of the Election Code. With regard to the issue of standing, while Objectors may have been aggrieved by the results of the election of the Ward Leader and Ward Chair at the Ward’s Organizational Meeting,9 Objectors were not aggrieved by the Board’s computation and/or certification of the votes cast in the relevant Divisions of the 58th Ward from which the challenged Democratic Committeepersons were elected.10 After
9 Section 807 of the Election Code states, in relevant part:
There may be in each county a county committee for each political party within such county, the members of which shall be elected at the spring primary . . . . The county committee of each party may make such rules for the government of the party in the county, not inconsistent with law or with the State rules of the party, as it may deem expedient, and may also revoke, alter or renew in any manner not inconsistent with law or with such State rules, any present or future county rules of such party.
25 P.S. §2837.
In turn, Rule VI, Article 1, Section B of the Rules of the Democratic Party of the City and County of Philadelphia states, “All contests pertaining to the election of the County Committeeman and ward officers shall be filed with the County Committee. . . . In the case of the election of ward officers, the contest shall be heard by the Committee on Organization.” We have explained that the judiciary “should not and may not interfere in the determinations of an association, including this political party, until the available internal remedies have been exhausted.” Fox v. Tucker, 320 A.2d 919, 921 (Pa. Cmwlth. 1974). 10 As the Supreme Court has explained, with respect to standing in an election matter, “‘[f]or a party to be aggrieved, it must have: 1) a substantial interest in the subject matter of the litigation; 2) the party’s interest must be direct; and 3) the interest must be immediate and not a remote consequence of the action.’” Erfur v. Commonwealth, 794 A.2d 325, 329 (Pa. 2002), abrogated on other grounds, League of Women Voters v. Commonwealth, 178 A.3d 737, 812-13 (Pa. 2018) (citation omitted). See also Section 1404(e) of the Election Code, 25 P.S. §3154(e) (“[U]pon petition of three voters of any district, verified by affidavit, that an error, although not
5 reviewing the record, the parties’ appellate briefs, and the law, we conclude that the trial court properly determined that Objectors did not have standing to prosecute the appeal under Section 1407 of the Election Code and this issue has been ably resolved in the thorough and well-reasoned opinion of the Honorable Daniel J. Anders of the Philadelphia County Court of Common Pleas. Therefore, we affirm the trial court’s order based on its disposition of this issue in its opinion in the matter of James D. Lewis, Jr. and James P. Ryan, Jr. v. Philadelphia County Board of Elections (C.P. Phila., Case No. 180503453, filed July 31, 2018).11
apparent on the face of the returns, had been committed therein, . . . the [Board] shall at any time prior to the completion of the computation of all of the returns for the county, summon the election officers of the district, and said officers . . . shall conduct a recount or recanvas of all ballots cast.”); Section 1701(a) of the Election Code, 25 P.S. §3261(a) (“[T]he court of common pleas, or a judge thereof, of the county in which any election district is located in which ballots were used, shall open the ballot box of such election district used at any . . . primary election held therein, and cause the entire vote thereof to be correctly counted by persons designated by such court or judge, if three qualified electors of the election district shall file . . . a petition duly verified by them, alleging that upon information which they consider reliable they believe that fraud or error . . . was committed in the computation of the votes cast . . . for any particular office or offices in such election district, or in the marking of the ballots, or otherwise in connection with such ballots.”); Section 1702(a)(1) of the Election Code, 25 P.S. §3262(a)(1) (“[T]he court of common pleas, or a judge thereof, of the county in which any election district is located, shall make visible the registering counters of the voting machine or machines used in such election district at any primary or election, and . . . shall recanvas the vote cast therein, if three qualified electors of the election district shall file a petition, duly verified by them, alleging that, upon information which they consider reliable, they believe that fraud or error . . . was committed in the canvassing of the votes cast on such machine or machines.”); Section 1751 of the Election Code, 25 P.S. §3431 (“[Certification challenge c]ases of the fifth class shall be tried and determined upon petition of twenty registered electors, as hereinafter provided, by the court of common pleas of the county in which such contested election was held.”). 11 Based on our disposition of this issue, we will not reach the other claims raised by Objectors in this appeal, and we do not adopt the trial court’s reasoning in any other respect. 6 MICHAEL H. WOJCIK, Judge
7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James D. Lewis, Jr. : and James P. Ryan, Jr., : : Appellants : : v. : No. 859 C.D. 2018 : Philadelphia County Board : of Elections :
ORDER
AND NOW, this 13th day of August, 2018, the order of the Philadelphia County Common Pleas Court dated June 8, 2018, is AFFIRMED.
__________________________________ MICHAEL H. WOJCIK, Judge