Opinion
No. 364 C.D. 2021 No. 365 C.D. 2021
04-19-2021
IN RE: Nomination Petitions of Jodi Lukens GRIFFIS as Candidate for Office of the Magisterial District Judge, Montgomery County Objection of: Linda Pizzi Appeal of: Linda Pizzi In re: Nomination Petitions of Jodi Lukens Griffis as Candidate for Office of Magisterial District Judge, Montgomery County Objection of: Richard Gleba Appeal of: Richard Gleba
Samuel C. Stretton, West Chester, for Appellants. John A. Marlatt, Norristown, for Intervenor Montgomery County Board of Elections. Timothy J. Ford, Philadelphia, for Appellee Jodi Lukens Griffis.
Samuel C. Stretton, West Chester, for Appellants.
John A. Marlatt, Norristown, for Intervenor Montgomery County Board of Elections.
Timothy J. Ford, Philadelphia, for Appellee Jodi Lukens Griffis.
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK
Linda Pizzi and Richard Gleba (collectively, Objectors) appeal the orders of the Montgomery County Court of Common Pleas (trial court) that denied their petitions to set aside the nomination petitions of Jodi Lukens Griffis (Candidate) to appear on the ballot in the Municipal Primary Election to be held on May 18, 2021, as a Democratic and as a Republican candidate for the office of Magisterial District Judge (MDJ) for Magisterial District 38-1-13. We affirm.
See, e.g. , In re Substitute Nomination Certification of Moran , 739 A.2d 1168, 1169 (Pa. Cmwlth. 1999) ("As distinct from the election of most other public offices, candidates for the office of District [Judge] may file nominating petitions in both major political parties, which is known as cross filing, under Section 910 of the Pennsylvania Election Code ([Election] Code), Act of June 3, 1937, P.L. 1333, as amended , 25 P.S. § 2870.") (footnote omitted).
Magisterial District 38-1-13 is composed of Plymouth Township and Voting Districts 1, 4, and 6 of Conshohocken Borough in Montgomery County. See 124 The Pennsylvania Manual 5-79 (2020). We also note that Montgomery County is a county of the Second Class A. See id. at 6-29. See also Emert v. Larami Corporation , 414 Pa. 396, 200 A.2d 901, 902 n.1 (1964) ("Courts will take judicial notice of geographical facts such as the county in which a town or city is located.") (citations omitted).
On March 16, 2021, Objectors filed their petitions to set aside Candidate's nomination petitions alleging that Candidate violated Section 1104(b)(2) of the Public Official and Employee Ethics Act (Ethics Act) by not filing her Statements of Financial Interests (SOFIs) with the governing authority of Montgomery County (County), which is a fatal defect requiring her removal from the ballot. Objectors also alleged that in the SOFIs that Candidate did file with the Office of Voter Services in the County's Board of Elections (Board), she failed to include rental income that she received from two properties in Norristown, Montgomery County, in which she has an ownership interest.
65 Pa. C.S. § 1104(b)(2). Section 1104(b)(2) of the Ethics Act states:
(2) Any candidate for county-level or local office shall file a statement of financial interests for the preceding calendar year with the governing authority of the political subdivision in which 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 statement of financial interests shall also be appended to such petition.
In turn, Section 1104(b)(3) of the Ethics Act states:
(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 statement of financial interests as set forth in paragraphs (1) and (2). Failure to file the statement 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)(3).
On March 18, 2021, the trial court conducted a hearing on the objections. At the hearing, the Administrator of the Board's Office of Voter Services, Matthew Macekura, testified that his office receives both nomination petitions and SOFIs for MDJ candidates because it was the office in which all county employees file their annual SOFIs by May 1st. N.T. 3/18/21 at 25-27. He stated that his office appended a copy of the SOFI to each nomination petition, and "transported [the SOFI] up to our office where those are housed," thereby delivering the SOFI to the local governing authority for MDJ candidates. Id. at 27-28. Macekura testified that Candidate emailed him for filing instructions, came into his office, and delivered her SOFIs directly to him. Id. at 31-32. He stated that he handed her a "time-stamped, filled-out receipt" for her candidacy dated March 8, 2021. Id. at 30-31. He testified that his office "required one [SOFI] to be filed for each side of the ballot with the petition," and then "one additional copy," "[s]o it would have been three total" copies that were filed. Id. at 35. Macekura stated that he retained the third SOFI copy submitted by MDJ candidates and time-stamped by his office, the one copy that was not appended to the nomination petitions, in a separate folder. Id. at 39, 40, 45. He testified, "So it's in our office where all of the [SOFIs] for the county are deposited. We retain those." Id. at 42.
"N.T. 3/18/21" refers to the transcript of the trial court's March 18, 2021 hearing.
Candidate testified that she emailed Macekura and was instructed by him to file a copy of her SOFI with her nomination petitions and another with his office. N.T. 3/18/21 at 20-21. She stated that she went to his office on March 8, that she "provided him all of the documentation," and that he received all of her filings. Id. She testified that she was not given time-stamped copies "and was told that that was not an option as [to] how they were doing things." Id. at 21.
Regarding her failure to report income from her rental properties on her SOFI, Candidate stated:
Because in reviewing the [SOFI], it was not meant to leave out -- I own rental properties. That's not at issue.
When I looked through the [SOFI] and went line-by-line and reading the key as to what each thing means, thinking that one of them would require rental properties, they both are operating at a loss. And I have, you know, on my tax returns, because [ ] there[are] mortgages on them and they're not properties that are very expensive, there is not in excess of, I believe it was $1,300 is what the number on the key said.
Neither of them are producing income in excess of $1,300, so I didn't put them on there.
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My interpretation of the [SOFI] is that it didn't have a spot for me to be able to disclose them.
I have no problem disclosing the properties. It's not anything that I was trying to keep from anybody.
Reading through this key that explains each and every block that's contained on the [SOFI], I didn't believe that it was appropriate to disclose the[ properties] in any of them.
N.T. 3/18/21 at 24, 54-55.
On March 23, 2021, the trial court issued orders dismissing the objections to Candidate's nomination petitions, rejecting Objectors’ claims that Candidate violated Section 1104(b)(2) of the Ethics Act by failing to file a SOFI with the "governing authority," and rejecting Objectors’ assertions that her nomination petitions should be stricken based on her failure to include the income received from her rental properties that she owned with her husband. Objectors then filed the instant appeals of the trial court orders.
On April 8, 2021, the Montgomery County Board of Elections filed Notices of Intervention in the appeals. By April 15, 2021 order, we granted Objectors’ applications to consolidate these appeals.
Initially we note that in reviewing an order adjudicating challenges to a nomination petition, our standard of review permits reversal only where the findings of fact are unsupported by substantial evidence, where there was an abuse of discretion, or where an error of law was committed. In re Beyer , 631 Pa. 612, 115 A.3d 835, 838 (2015). Moreover, in reviewing election issues, we must consider the longstanding and overriding policy in our Commonwealth to protect the elective franchise. Id. ; In re Driscoll , 577 Pa. 501, 847 A.2d 44, 48 (2004). In promoting that policy, this Court has made clear that the Election Code must "be liberally construed to protect a candidate's right to run for office and the voters’ right to elect the candidate of their choice." In re Beyer , 115 A.3d at 838. Indeed, "the purpose of the Election Code is to protect, not defeat, a citizen's vote." Dayhoff v. Weaver , 808 A.2d 1002, 1006 (Pa. Cmwlth. 2002). Furthermore, "[a] party alleging defects in a nominating petition has the burden of proving such defects, as nomination petitions are presumed to be valid." In re Beyer , 115 A.3d at 838.
Objectors first claim that the trial court erred in determining that Candidate did not violate Section 1104(b)(2) of the Ethics Act by failing to file a SOFI with the relevant "governing authority of the political subdivision," thereby constituting a fatal defect requiring the striking of her nomination petitions pursuant to Section 1104(b)(3). We do not agree.
Although the Ethics Act does not define "governing authority," Section 11.1 of the Ethics Commission's regulations defines "governing authority" as "[t]he body empowered to enact ordinances, appropriations and resolutions or to otherwise govern a subordinate body." 51 Pa. Code § 11.1.
Article 9, Section 4 of the Pennsylvania Constitution provides: "County officers shall consist of commissioners ...," and that "[t]hree county commissioners shall be elected in each county." Pa. Const. art. IX, § 4. In turn, Section 504(a) of The County Code states: "The commissioners shall constitute a board, two members of which shall be a quorum for the transaction of business, and, when convened after notice, shall be competent to perform all the duties appertaining to the office of county commissioners." 16 P.S. § 504(a). Additionally, Section 509(a) provides that "[t]he commissioners may adopt resolutions and ordinances prescribing the manner in which powers of the county shall be carried out and generally regulating the affairs of the county." 16 P.S. § 509(a). Importantly, Section 301(a) of the Election Code provides: "There shall be a county board of elections in and for each county of this Commonwealth, which shall have jurisdiction over the conduct of primaries and elections in such county, in accordance with the provisions of this act." 25 P.S. § 2641(a). Moreover, Section 301(b) states, in relevant part, that "[i]n each county of the Commonwealth, the county board of elections shall consist of the county commissioners of such county ex officio ...." 25 P.S. § 2641(b). See also In re 2003 Election for Jackson Township Supervisor , 840 A.2d 1044, 1046 (Pa. Cmwlth. 2003) ("Ordinarily, the county board of elections consists of the county commissioners. Section 301(b) of the Election Code, 25 P.S. § 2641(b).").
See also Section 401(a)(1) of The County Code, Act of August 9, 1955, P.L. 323, as amended , 16 P.S. § 401(a)(1) ("In each county, there shall be the following officers elected by the qualified electors of the county: (1) Three county commissioners."); Section 401(a) of the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended , 16 P.S. § 3401(a) ("In the county there shall be the following officers elected by the qualified electors of the county: (1) three county commissioners[.]").
See also Section 203 of the Second Class County Code, 16 P.S. § 3203 ("The corporate power of the county shall be vested in a board of county commissioners."); Section 503(a) of the Second Class County Code, 16 P.S. § 3503(a) ("The commissioners shall constitute a board, two members of which shall be a quorum for the transaction of business, and when convened in pursuance of notice or according to adjournment shall be competent to perform all the duties appertaining to the office of county commissioners."); Section 508(a) of the Second Class County Code, 16 P.S. § 3508(a) ("The board of commissioners may adopt resolutions and ordinances prescribing the manner in which powers of the county shall be carried out and generally regulating the affairs of the county.").
As this Court has explained:
[In re Caruso (C.C.P. Westmoreland, No. 2561 of 2009, filed March 31, 2009), aff'd (Pa. Cmwlth., No. 507 C.D. 2009, filed April 9, 2009),] involved Westmoreland County, which is governed by county commissioners. In Westmoreland County, the county commissioners also constituted the county election board. Under these facts, the Court of Common Pleas of Westmoreland County found a latent ambiguity in the directive to file [SOFIs] with the governing authority, in that the election office and its employees are "the actual or ostensible agents of" the county commissioners, and that the use of different offices reflects the division of labor and responsibility within the governing authority. Caruso , slip op. at 4-5. This Court affirmed the trial court, which held that filing candidate's [SOFI] with the county election office constituted the filing of that [SOFI] with the governing authority of the county. Id.
In re Grimaud , 167 A.3d 305 (Pa. Cmwlth., No. 418 C.D. 2017, filed April 25, 2017), slip op. at 10. See also id. , slip op. at 12 ("In the instant matter, like Westmoreland County in Caruso , the three elected Wyoming County Commissioners constitute the County Board of Elections. ... As such, the offices of the Commissioners and the Board of Elections are, in reality, the offices of the same three people. ... There is nothing in the Ethics Act that prohibits the County Commissioners, as the governing authority of the County, from having the [SOFIs] filed with them in their Election Office, rather than in another office that does not have filing procedures in place.").
See Pa. R.A.P. 126(c)(2) ("All other single-judge opinions ... shall be cited only for persuasive value and not as binding precedent."); Section 414(b) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.414(b) ("[A] single-Judge opinion of this Court ... shall be cited only for its persuasive value and not as a binding precedent.").
In the opinions filed in support of its orders rejecting Objectors’ claim that Candidate violated Section 1104(b)(2) of the Ethics Act herein, the trial court observed:
With regard to [Objectors’] challenge to [Candidate's] filing only one [SOFI] with the Montgomery County's Office of Voter Services, the trial court found that [Candidate] satisfied the requirements of 65 Pa. C.S.[ ]§ 1104(b)(2) by filing in accordance with practice and policy in
Montgomery [County]. Further, requiring redundant filings with the same governing authority and striking the nomination petition for that reason does not comport with the interest of allowing liberal construction of the Election Code to protect a candidate's right to run for office and the voters’ right to elect the candidate of their choice. In re Paulmier , 594 Pa. 433, 937 A.2d 364 (2007).
Pizzi v. Griffis (C.C.P. Montgomery, No. 2021-03468, filed April 8, 2021), slip op. at 3-4; Gleba v. Griffis (C.C.P. Montgomery, No. 2021-03470, filed April 8, 2021), slip op. at 3-4.
We discern no error by the trial court in this regard. As outlined above, the County's Commissioners are the County's "governing authority" under the Ethics Act, and are also the County's Board of Elections under the Election Code. Moreover, as outlined above, Macekura's testimony provides substantial evidence to support the trial court's determination that Montgomery County has a practice and policy whereby SOFIs are filed with, and retained by, the Board's Office of Voter Services. His testimony also demonstrates that Candidate filed SOFIs that were appended to each of her nomination petitions, and a separate SOFI that was retained in a folder with the others that were filed in that office. As in Grimaud and Caruso , Candidate's filing of her SOFIs in the Board's Office of Voter Services satisfies the requirements of Section 1104(b)(2) of the Ethics Act, and Objectors’ claim to the contrary is without merit. See, e.g. , In re Bah , 215 A.3d 1029, 1035 n.9 (Pa. Cmwlth. 2019) ("In both Grimaud and [In re Tidball , 167 A.3d 306 (Pa. Cmwlth., No. 417 C.D. 2017, filed May 1, 2017)], substantial evidence supported the finding that Wyoming County's election office was the county's long-standing, designated governing authority; the election office checklist specified that [SOFIs] are to be filed in the election office; and the election office clerks make copies of the [SOFIs] and separately file the copies, thereby satisfying Section 1104(b)(2) of the Ethics Act's two-filing rule.").
Finally, Objectors claim that the trial court erred in failing to strike Candidate's nomination petitions based on her failure to report the income from her rental units in her SOFI and in her failure to file an amended SOFI by the time of hearing on their objections to her nomination petitions. Again, we do not agree. As the Pennsylvania Supreme Court has observed:
Section 1107(5) of the Ethics Act states, in pertinent part:
[T]he commission shall:
* * *
(5) Inspect [SOFIs] which have been filed in order to ascertain whether any reporting person has failed to file such a [SOFI] or has filed a deficient [SOFI]. If, upon inspection, it is determined that a reporting person has failed to file a [SOFI] or that any [SOFI ] which has been filed fails to conform with the requirements of section 1105 (relating to [SOFIs]), then the commission shall in writing notify the person. Such notice shall state in detail the deficiency and the penalties for failure to file or for filing a deficient [SOFI].
65 Pa. C.S. § 1107(5) (emphasis added).
In turn, Section 19.3(a) and (c) of the Ethics Commission's regulations states:
(a) If an audit or inspection determines that a required filing is deficient or that a required filing has not been made, the Commission will provide written notice to the individual required to file, detailing the deficiency and the penalties for deficient filing or failure to file.
* * *
(c) The individual notified in accordance with subsection (a) has 20 days from the mailing date of the notice to correct deficiencies or to file a [SOFI]. If an individual fails to file or to correct his [SOFI] within that time, the Commission will review the matter to determine whether a civil penalty is appropriate under the [Ethics Act].
51 Pa. Code § 19.3(a), (c) (emphasis added).
When the language of the Ethics Act is tempered by the language of the Election Code, it is clear that the intent of the Legislature is to encourage both full financial disclosure and protect voter choice. Read together, the Legislative intent is clearly best served by a rule that allows a timely filer to amend in order to come into full compliance giving the public both the benefit of full financial disclosure and the broadest choice of representatives. Therefore, we now hold that the fatality rule announced in Section 1104 of the Ethics Act was intended by the Legislature to bar only those candidates from the ballot who fail to file [SOFIs] or who file them in an untimely manner. Section 1104 does not bar any candidate from the ballot if he or she files in a timely manner, even if there are defects on the face of the form, so long as that candidate subsequently amends the form to correct the defect and comes into compliance with the Act in a timely manner. In other words, all defects related to the content of disclosures on a timely filed statement of financial interest are subject to timely amendment.
Paulmier , 937 A.2d at 371.
Additionally, as this Court has noted with respect to a deficient SOFI:
[The o]bjectors made no allegation in their petition to set aside of bad faith on [the candidate's] part in failing to report as income the reimbursement of campaign expenses paid by him, and the trial court made no such finding of bad faith in connection with [the candidate's] failure to report the reimbursements as income. Under the Supreme Court's unequivocal holding in Paulmier , a candidate who timely files a [SOFI] is not precluded from amending the form in a timely fashion so as to comply with requirements of the Ethics Act. Thus, the trial court erred in failing to permit [the candidate] to amend his [SOFI], assuming of course that reimbursement of campaign expenses is income to be reported in Box 10, which it is not.
In re Williams , 972 A.2d 32, 41 (Pa. Cmwlth. 2009) (footnote omitted). Likewise, in the instant matter, Objectors do not allege that Candidate acted in bad faith in failing to disclose this income in the SOFIs that she filed in the Board's Office of Voter Services.
In its March 23, 2021 blanket orders denying Objectors’ petitions to set aside, the trial court did not make any determinations regarding Candidate's intent with respect to her failure to report her rental income or any purported deficiencies that were present in the SOFIs that she had filed. Rather, it was not until the April 8, 2021 opinions filed in support of its orders that the trial court made these determinations stating, in relevant part:
[Objectors] posit[ ] that [Candidate] omitted information from her [SOFIs]. In the trial court's estimation, [Candidate] testified credibly[ ] with regard to the omissions of rental income from [the] real estate interest [that] she and her husband own. [N.T. 3/18/21 at 50-51.] The court was impressed with [Candidate's]
"[T]he trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence." Commonwealth v. Harper , 485 Pa. 572, 403 A.2d 536, 539 (1979). "It is within the purview of the fact finder to draw all reasonable inferences from the evidence presented[.]" Ellis v. City of Pittsburgh , 703 A.2d 593, 594 (Pa. Cmwlth. 1997).
candid responses to questions regarding the omissions and the fact that she had no problem disclosing the information in an amended [SOFI].
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As for the challenges based on omissions from the [SOFIs], the trial court believed it was also guided by the Paulmier decision in that the fatal defect rule of the Ethics Act bars only those candidates from the ballot who fail to file [SOFIs] or who file them untimely, and that defects related to the content of the disclosures on a timely filed [SOFIs] are subject to timely amendment. [ ] Paulmier , 937 A.2d at 364. In the instant case, [Candidate] readily expressed a willingness to file such an amendment.
Pizzi , slip op. at 3, 4; Gleba , slip op. at 3, 4.
As outlined above, the trial court's determination with respect to Candidate's lack of bad faith in failing to report this rental income is supported by substantial evidence. As a result, this finding is binding on this Court. Additionally, it was not until the trial court issued its April 8, 2021 opinions that a written notice of a determination, within the meaning of Section 1107(5) of the Ethics Act or Section 19.3 of the Ethics Commission's regulations, was made with respect to any purported deficiencies in the SOFIs that Candidate filed with the Board's Office of Voter Services. As a result, Candidate will be permitted to file amended SOFIs to include this information. See In re Williams-Witherspoon , 596 Pa. 541, 946 A.2d 663, 665 (2008) ("In Paulmier , this Court held that ‘all defects related to the content of disclosures on a timely filed [SOFI] are subject to timely amendment.’ [ 937 A.2d at 371 ]. Here, it is undisputed that [the candidate] timely filed her [SOFI]. Because the decision we have already rendered in this case is in harmony with the now-governing law in Paulmier , we need not say any more in support of affirmance."); Paulmier , 937 A.2d at 368 ("Having given proper notice, [the candidate] argues that if this Court finds that his first disclosure did not fully comply with the [Ethics] Act, then we should accept his timely amendment in which he disclosed the names and addresses of his individual tenants.") (footnote omitted).
As the Pennsylvania Supreme Court has explained:
The Ethics Commission regulation at 51 Pa. Code § 19.3 provides twenty days from notice of a deficiency to amend a [SOFI]. It is also important to note that Section 1105 of the Ethics Act requires that the [SOFI] be provided to the best of the knowledge, information and belief of the person required to file. This means that candidates must still file in good faith even though they do have an opportunity to amend. See 65 Pa. C.S. § 1105(a). See also 65 Pa. C.S. § 1107(5).
Paulmier , 937 A.2d at 371 n.3.
Accordingly, the trial court's orders are affirmed.
ORDER
AND NOW, this 19th day of April, 2021, it is hereby ORDERED:
1. The orders of the Montgomery County Court of Common Pleas dated March 23, 2021, are AFFIRMED.
2. The Montgomery County Board of Elections is directed to certify the name of Jodi Lukens Griffis to appear on the ballot in the Municipal Primary Election to be held on May 18, 2021, as a Candidate for the Democratic and Republican Nomination for the office of Magisterial District Judge for Magisterial District 38-1-13.
3. Jodi Lukens Griffis is directed to file with the Montgomery County Board of Elections Amended Statements of Financial Interests including any rental income from properties in which she has an ownership interest in accordance with the foregoing opinion within seven (7) days of the date of this Order, unless she has already filed these amended forms.
4. The Prothonotary shall notify the parties hereto and their counsel of this Order and shall send a copy of this Order to the Montgomery County Board of Elections.
5. Each party shall bear his or her own costs.
6. The Application for Emergency Relief to Open Record filed by Jodi Lukens Griffis is DISMISSED as moot.