Reuther v. Del. Cnty. Bureau of Elections , 205 A.3d 302 ( 2019 )

[J-90-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
CHRISTINE A. REUTHER AND ANI : No. 6 MAP 2018
MARIE DIAKATOS, :
: Appeal from the Order of the
Appellants : Commonwealth Court dated October
: 26, 2017 at No. 1365 CD 2017
: Affirming the Order of the Delaware
v. : County Court of Common Pleas, Civil
: Division, entered September 19, 2017,
: at No. 7902-2017.
DELAWARE COUNTY BUREAU OF :
ELECTIONS AND CHRISTINE ROSSI, : SUBMITTED: November 28, 2018
:
Appellees :
OPINION
JUSTICE WECHT DECIDED: March 26, 2019
This appeal requires us to determine whether a candidate who obtains access to
the ballot by write-in vote must have her name stricken from that ballot if she fails to file
a Statement of Financial Interests (“SOFI”) with the appropriate authorities in the requisite
time frame. Because the Public Official and Employee Ethics Act (“Ethics Act”)1 imposes
this consequence only upon candidates who petition to appear on the ballot, we hold that
it is inapplicable to write-in candidates. Therefore, we affirm the order of the
Commonwealth Court.
1 65 Pa.C.S. §§ 1101-13.
I. Background
On May 16, 2017, by write-in vote, Christine Rossi won the Republican nomination
for Tax Collector of Nether Providence Township (“the Township”). On June 2, 2017, the
Delaware County Bureau of Elections (“the Bureau”) notified Rossi that she was certified
as the Republican nominee. The Bureau instructed Rossi to submit a SOFI to the Bureau
and to the Township by June 30, 2017, in order to have her name appear on the
November 2017 general election ballot. On June 30, 2017, Rossi filed her SOFI with the
Bureau, but failed to file it with the Township.
On September 6, 2017, based upon a Right-to-Know Law2 request submitted to
the Township, Christine A. Reuther and Ani Marie Diakatos (collectively, “Objectors”)
discovered that Rossi had not filed her SOFI with the Township. On September 13, 2017,
Objectors filed an emergency petition for relief with the Delaware County Court of
Common Pleas. Objectors stressed that Subsection 15.3(e) of the State Ethics
Commission’s regulations requires write-in candidates to file their SOFIs with the
appropriate authorities within thirty days of the certification of the election results. 3
Because Rossi failed to file her SOFI with the Township within that period of time,
Objectors asserted that, pursuant to Subsection 1104(b)(3) of the Ethics Act, her failure
constituted a fatal defect to her candidacy, and her name was required to be stricken from
the general election ballot.4 On September 14, 2017, Rossi filed her SOFI with the
Township.
2 65 P.S. §§ 67.101-67.3104.
3 See 51 Pa. Code § 15.3(e).
4 65 Pa.C.S. § 1104(b)(3) states: “Failure to file [a SOFI] 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.”
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On September 18, 2017, the trial court conducted a hearing on Objectors’
emergency petition. On September 19, 2017, the trial court denied the petition. In its
Pa.R.A.P. 1925(a) opinion, the trial court acknowledged that, under Subsection
1104(b)(3), the failure to file a SOFI within the specified time frame is a fatal defect to a
candidate’s petition to appear on the ballot. However, because write-in candidates do not
petition to appear on the ballot, the trial court concluded that this subsection did not apply
to Rossi. Quoting In re Guzzardi, 99 A.3d 381 (Pa. 2014), the trial court noted that it must
“act with restraint, in the election arena, subordinate to express statutory directives.” Id.
at 386. Absent any statutory provision requiring it to treat a write-in candidate’s failure to
file a SOFI as a fatal defect to his or her candidacy, the trial court held that it could not
order Rossi’s name stricken from the ballot.
Objectors appealed to the Commonwealth Court. On October 26, 2017, a divided
panel of that court affirmed. See Reuther v. Delaware Cty. Bureau of Elections, 172 A.3d
738 (Pa. Cmwlth. 2017). The Commonwealth Court first rejected Rossi’s argument that
Objectors’ petition was untimely. The court explained that, although objections to
nomination petitions and papers must be filed within seven days after the last day for filing
such petitions or papers, there is no similar deadline for filing objections to write-in
candidates. Id. at 741. The Commonwealth Court determined that it was prohibited from
imposing a deadline where the General Assembly had failed to do so. Id. at 743.
Turning to the substance of Objectors’ challenge, the Commonwealth Court
pointed out that Subsection 1104(d) of the Ethics Act requires all candidates, including
write-in candidates, to file SOFIs before they may hold public office. Id. The
Commonwealth Court noted that candidates for county-level or local office who petition
to appear on the ballot must file their SOFIs with the governing authority of the political
subdivision in which they are candidates on or before the last day for filing a petition to
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appear on the ballot. Id. at 743-44 (citing 65 Pa.C.S. § 1104(b)(2)). Such candidates
also must attach copies of their SOFIs to their petitions to appear on the ballot. Id. The
Commonwealth Court found that, if a candidate is subject to this requirement and fails to
comply, his or her name must be stricken from the ballot in the event of a timely challenge.
Id. at 744 (citing 65 Pa.C.S. § 1104(b)(3)). However, the court found no similar Ethics
Act provision for write-in candidates. Id. at 744. Notwithstanding the absence of a
statutory command, the Ethics Commission’s regulations require write-in candidates to
file their SOFIs with the Ethics Commission and the governing authority of the political
subdivision where they have been nominated or elected within thirty days of the
certification of the election results. Id. at 744-45 (citing 51 Pa. Code § 15.3(e)). Other
regulations specify the consequences of a write-in candidate’s failure to do so. Critically,
none of these regulations contain “fatal defect” language similar to Subsection 1104(b)(3)
of the Ethics Act. Id. at 745-46 (citing 51 Pa. Code §§ 19.3, 21.1-21.30).5
Because no provision of the Ethics Act or the Ethics Commission’s regulations
renders a write-in candidate’s failure to file a SOFI a defect fatal to his or her name’s
appearance on the general election ballot, the Commonwealth Court concluded that it
could not impose this consequence upon Rossi. The Commonwealth Court reasoned
that it could not add a provision to a statute that the General Assembly had failed to
include. Id. at 747 (citing Hanaway v. Parkersburg Group, LP, 168 A.3d 146, 154 (Pa.
2017)). Accordingly, the court held that Rossi’s name should not be stricken from the
ballot, and it affirmed the trial court’s order denying Objectors’ petition.
5 Consequences for a non-compliant write-in candidate include the prospect that
individuals may file complaints challenging her candidacy and that the Ethics Commission
may conduct its own investigation into any deficiency. See 51 Pa. Code §§ 21.1-21.3.
The regulations also allow the Ethics Commission to impose monetary penalties and to
order candidates to take action to comply with the Ethics Act. See id. §§ 19.3, 21.30.
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In an opinion concurring in part and dissenting in part, Judge Covey agreed that
Objectors timely filed their petition. However, Judge Covey disagreed with the majority’s
determination that a write-in candidate’s failure to file a SOFI in compliance with
Subsection 15.3(e) of the Ethics Commission’s regulations was not a defect fatal to her
candidacy. Judge Covey reasoned that the legislature evidenced its intent to require all
candidates to file SOFIs before becoming nominees or candidates by defining a candidate
as someone who has “taken the action necessary under the laws of this Commonwealth
to qualify [her]self for nomination or election.” Id. at 748 (Covey, J., concurring and
dissenting) (quoting 65 Pa.C.S. § 1102). Because the Ethics Act expressly included
write-in candidates in its definition of “candidate,” Judge Covey concluded that such
candidates must take the actions that the law requires, such as filing SOFIs, in order to
qualify for nomination or election. Id. at 748-49. Judge Covey posited that the failure to
file a SOFI necessarily resulted in the individual’s failure to qualify as a candidate whose
name could appear on the general election ballot. According to Judge Covey, by
concluding otherwise, the majority held write-in candidates to a more lenient standard
than candidates who petitioned to appear on the ballot. Id. at 749. In Judge Covey’s
view, the majority’s holding allowed write-in candidates to disregard the SOFI filing
requirements and to ignore the Ethics Act, which was designed to promote financial
disclosure by requiring all candidates to file SOFIs. Id. at 753-54.
Objectors filed a timely petition for allowance of appeal. On February 8, 2018, this
Court granted review of Objectors’ petition in order to consider the following issue:
Does the failure of a write-in candidate or other candidate who obtains
access to the ballot other than through the filing of a nomination petition to
timely file a [SOFI], as required by 51 Pa. Code § 15.3(e), constitute a “fatal
defect,” precluding the appearance of the candidate’s name on the ballot?
[J-90-2018] - 5
Reuther v. Delaware Cty. Bureau of Elections, 180 A.3d 366 (Pa. 2018) (per curiam).6
II. Analysis
Because the issue before us concerns the interpretation of the Ethics Act, it poses
a question of law. See In re Carroll, 896 A.2d 566, 573 (Pa. 2006). Therefore, our scope
of review is plenary, and our standard of review is de novo. Id. When we interpret a
statute, we must strive “to ascertain and effectuate the intention of the General
Assembly.” 1 Pa.C.S. § 1921(a). As this Court has noted time and again, the plain
language of a statute is the best indicator of its intent. See, e.g., Commonwealth v.
Gilmour Mfg. Co., 822 A.2d 676, 679 (Pa. 2003). When the plain language is ambiguous,
we may utilize various tools of statutory construction in order to discern the legislature’s
will. See 1 Pa.C.S. § 1921(c).
The parties to this appeal agree that write-in candidates must file SOFIs, but they
disagree as to the consequences that attend a write-in candidate’s non-compliance.
Objectors argue that filing a SOFI in compliance with Subsection 15.3(e) of the Ethics
Commission’s regulations is a threshold qualification for a write-in candidate’s name to
appear on the ballot. Accordingly, if a write-in candidate fails to comply, his or her name
must be stricken from the ballot. Objectors opine that this consequence is necessary to
ensure that write-in candidates fulfill their obligations under the Ethics Act.
6 Although the general election is over, and Rossi lost, this Court declines to find the
issue moot inasmuch as it is capable of repetition and likely to evade review in future
cases. This Court has recognized that issues “capable of repetition yet evading review”
fall within a limited exception to the doctrine of mootness. See, e.g., Nutter v. Dougherty,
938 A.2d 401, 405 n.8 (Pa. 2007). Given the abbreviated time frame applicable to
elections and the amount of time that it takes for litigation to reach this Court, this
exception is particularly applicable when the question presented relates to an election
dispute. See id.
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Rossi responds that the “fatal defect” language contained in Subsection 1104(b)(3)
of the Ethics Act applies only to those who petition to appear on the ballot. Because write-
in candidates do not petition to appear on the ballot, Rossi reasons, this subsection
cannot apply to her. Rossi asserts that the courts cannot require her name to be stricken
from the ballot when the General Assembly declined to impose that consequence on
write-in candidates.
As all parties recognize, the statutory process through which individuals obtain
access to the ballot varies depending upon whether they petition to appear on a political
party’s primary ballot (“party candidate”) or are elected to be a party’s nominee by write-
in vote. The Pennsylvania Election Code7 requires a primary candidate to file a
nomination petition prior to the primary election in order to have his or her name appear
on the primary election ballot. See 25 P.S. § 2867. If a party candidate receives a
plurality of votes in the primary election, his or her name will then appear on the general
election ballot. See id. § 2882. By contrast, write-in candidates do not file nomination
petitions, and their names are not printed on the primary election ballot. Instead, a write-
in candidate secures nomination if a plurality of voters write that candidate’s name onto
the primary election ballot. See id. §§ 3056(e), 3031.12(a)(3), (b)(3). When this occurs,
the write-in candidate’s name may appear on the general election ballot.
Subsection 1104(d) of the Ethics Act requires all public officials to file SOFIs before
they take office or receive compensation.8 However, the process for filing a SOFI differs
7 25 P.S. §§ 2601-3591.
8 Specifically, Subsection 1104(d) states: “No public official shall be allowed to take
the oath of office or enter or continue upon his duties, nor shall he receive compensation
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depending upon how the candidate obtained access to the primary ballot. Subsection
1104(b)(2) of the Ethics Act requires a candidate for county-level or local office to file a
SOFI “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.” 65
Pa.C.S. § 1104(b)(2). If a SOFI is not attached to a candidate’s petition to appear on the
ballot, election officials will not accept the petition. Id. § 1104(b)(3). Further, failure to
comply with these requirements is “a fatal defect to a petition to appear on the ballot.” Id.
The Ethics Act defines a “candidate” as follows:
Any individual who seeks nomination or election to public office by vote of
the electorate, other than a judge of elections, inspector of elections or
official of a political party, whether or not such individual is nominated or
elected. An individual shall be deemed to be seeking nomination or election
to such office if he has:
(1) received a contribution or made an expenditure or given his
consent for any other person or committee to receive a contribution
or make an expenditure for the purpose of influencing his nomination
or election to such office, whether or not the individual has
announced the specific office for which he will seek nomination or
election at the time the contribution is received or the expenditure is
made; or
(2) taken the action necessary under the laws of this Commonwealth
to qualify himself for nomination or election to such office.
The term shall include individuals nominated or elected as write-in
candidates unless they resign such nomination or elected office within 30
days of having been nominated or elected.
65 Pa.C.S. § 1102.
Despite the Ethics Act’s inclusion of write-in candidates in its definition of
“candidate,” the requirements of Subsection 1104(b) cannot apply to them. This is
from public funds, unless he has filed a [SOFI] as required by this chapter.” 65 Pa.C.S.
§ 1104(d).
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because write-in candidates do not file nomination petitions. Instead, a write-in candidate
discovers her nomination only upon certification of the primary election results.
Accordingly, Subsection 15.3(e) of the Ethics Commission’s regulations requires write-in
candidates to file their SOFIs with the Ethics Commission and the governing authority of
the political subdivision where they have been nominated within thirty days of the
certification of the election results. 51 Pa. Code § 15.3(e). If a write-in candidate fails to
do so, individuals may file complaints challenging her candidacy, the Ethics Commission
may investigate any deficiency, and the Ethics Commission may impose civil penalties or
require the candidate to take remedial action. Id. §§ 19.3, 21.1-21.30.
Unlike candidates who petition to appear on the primary ballot, write-in candidates
are not subject to any statute or regulation that renders the failure to file a SOFI a fatal
defect to their candidacies. Rather, the unambiguous language of Subsection 1104(b)(3)
states that the “[f]ailure to file [a SOFI] 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) (emphasis added). Indeed, Subsection 1104(b)
relates, in its entirety, to petitions to appear on the ballot. Subsections 1104(b)(1) and (2)
state that candidates must file their SOFIs “on or before the last day for filing a petition to
appear on the ballot” and note that copies of candidates’ SOFIs must be attached to their
petitions to appear on the ballot. Id. §§ 1104(b)(1)-(2). Subsection 1104(b)(3) prohibits
election officials from accepting a petition to appear on the ballot if a SOFI is not attached.
Id. § 1104(b)(3). But write-in candidates file no petition. By its plain language, Subsection
1104(b)(3) applies only to those who petition to appear on the ballot, not to write-in
candidates.
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In re Guzzardi provides additional support for our conclusion that courts cannot
impose the fatal defect consequence upon write-in candidates. In In re Guzzardi, a
candidate petitioned to appear on the ballot, but failed to file a SOFI with the Ethics
Commission within the requisite time frame. In re Guzzardi, 99 A.3d at 382. When
challengers filed a petition to strike the candidate’s name from the ballot, the
Commonwealth Court denied the petition because the candidate offered sufficient, non-
negligent explanations to justify his late submission, and because the court found that the
judiciary was empowered to allow this defect to be cured based upon equitable principles.
Id. at 383. On appeal, this Court reversed, holding that courts may not employ equitable
principles to override express statutory consequences for particular acts or omissions.
Id. at 386. We also noted that “the judiciary should act with restraint, in the election arena,
subordinate to express statutory directives.” Id.
If courts cannot resort to equity to mitigate a legislatively-prescribed removal from
the ballot, they certainly should not resort to equity to force removal from the ballot when
the legislature has not prescribed such a consequence. This Court must honor the
unambiguous statutory directive, which applies the fatal defect rule only to those who
petition to appear on the ballot, not to write-in candidates. Exclusion of a candidate
chosen by a party’s electors is an extreme judicial intervention in the democratic process
that should be imposed only when required by unambiguous legislative mandate.
Because elections “constitute the very warp and woof of democracy,” election laws must
be liberally construed to protect a candidate’s right to run for office and the voters’ right
to elect a candidate of their choice. In re James, 105 A.2d 64, 65-66 (Pa. 1954); see also
In re Paulmier, 937 A.2d 364, 371 (Pa. 2007); In re Cioppa, 626 A.2d 146, 148-49 (Pa.
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1993). The power to strike a candidate’s name from the ballot must be wielded with
humility and restraint, and only in circumstances compelled by the Constitution or
statutes.
As a write-in candidate, Rossi did not seek access to the ballot by filing a
nomination petition. Therefore, the fatal defect consequence contained in Subsection
1104(b)(3) of the Ethics Act cannot apply to Rossi, and her name was not required to be
stricken from the general election ballot.
We affirm the order of the Commonwealth Court.
Chief Justice Saylor and Justices Baer, Todd, Donohue, Dougherty and Mundy
join the opinion.
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