Delaware County Republican Executive Committee v. Board of Elections ~ Appeal of: G. Stenstrom & L. Hoopes ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delaware County Republican
Executive Committee
v. : No. 125 CD. 2021
: Argued: November 18, 2021
Board of Elections :
Appeal of: Gregory Stenstrom and
Leah Hoopes
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 13, 2021
Gregory Stenstrom and Leah Hoopes (Observers) appeal the Order of
the Delaware County Court of Common Pleas (trial court) denying Observers’
Emergency Petition to Intervene in an action filed by the Delaware County
Republican Executive Committee (Committee), and denying Observers’ Emergency
Petition for Sanctions filed against the Delaware County Board of Elections (Board)
for its purported violation of a trial court order and the provisions of the
Pennsylvania Election Code (Election Code).'! We affirm.
On November 4, 2020, the Committee filed an emergency petition in
the trial court requesting increased access at the Board’s office for its party
representatives designated as ballot observers, including Observers, and for
' Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
designated seating areas for its observers during the pre-canvass and canvassing of
ballots after the November 3, 2020 General Election. Following a hearing, the trial
court issued an order granting the following relief:
1. Four [o]bservers in total (2 observers from _ the
Republican Party, or affiliated candidates, and 2 observers
from the Democratic Party, or affiliated candidates) are
permitted to observe the resolution area [in the Board’s
office] at all hours while ballots are being resolved.
2. Two observers (1 representing the Republican Party, or
affiliated candidates, and 1 representing the Democratic
Party, or affiliated candidates), are permitted to observe
the sorting machine area [in the Board’s office] at all times
while the machine is in use. However, all observers shall
stand back while the machine is in use due to safety
concerns.
3. At two-hour intervals, two observers in total (1
representing the Republican Party, or affiliated candidates,
and 1 representing the Democratic [Plarty, or affiliated
candidates) are permitted to enter the ballot room [in the
Board’s office], to examine the room; however, [they] are
not permitted to examine the physical ballots contained
within the room, individually. They must be escorted by
a member of the [Board] Staff with the time not to exceed
five minutes each visit.
4. Any observer may not interfere[] with the process, nor
may any observer object to individual ballots.
Reproduced Record (R.R.) at 34-35. The Committee did not appeal the trial court’s
order to this Court or seek its modification or sanctions of any kind based on the
purported violation of its provisions. See, e.g., Section 5505 of the Judicial Code,
? Observers filed a reproduced record with this Court, but failed to comply with Pa.R.A.P.
2173, which requires that reproduced record pages be numbered followed by a small “a.”
Accordingly, this Court references the document consistent with the pagination contained in the
Reproduced Record.
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42 Pa. C.S. §5505 (“Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30 days after its entry
...1f no appeal from such order has been taken or allowed.”’); Section 5571(b) of
the Judicial Code, 42 Pa. C.S. §5571(b) (“[A]n appeal ... from a court to an
appellate court must be commenced within 30 days after the entry of the order from
which the appeal is taken, in the case of an interlocutory or final order.’’).
Forty-eight days after the trial court entered its order, on December 22,
2020, Observers and Dasha Pruett (Candidate), a candidate for the United States
House of Representatives (U.S. House),* filed the instant Emergency Petition to
Intervene* and the Emergency Petition for Sanctions.> On January 12, 2021, the trial
court issued an Opinion and Order denying the Emergency Petition to Intervene and
> Candidate is not a party to the instant appeal.
* See Pa.R.Civ.P. 2327 (“At any time during the pendency of an action, a person not a party
thereto shall be permitted to intervene therein, subject to these rules ....”); Pa.R.Civ.P. 2329(2)
and (3) (“[A]n application for intervention may be refused, if . . . the interest of the petitioner is
already adequately represented; or . . . the petitioner has unduly delayed in making application for
intervention... .”).
> See Section 1806 of the Election Code, 25 P.S. §3506 (“Any member of a county board
... who shall refuse to permit any overseer or watcher . . . to be present... at any . . . computation
and canvassing of returns of any ... election, ... shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be sentenced to pay a fine not exceeding [$1,000.00], or to undergo an
imprisonment not exceeding [1] year, or both, in the discretion of the court.”); Section 4133 of the
Judicial Code, 42 Pa. C.S. §4133 (“Except as otherwise provided by statute, the punishment of
commitment for contempt provided in [S]ection 4132 (relating to attachment and summary
punishment for contempts) shall extend only to contempts committed in open court. All other
contempts shall be punished by fine only.”). See also Section 1642(a) and (c) of the Election Code,
added by the Act of October 4, 1978, P.L. 893, as amended, 25 P.S. §3260b(a), (c) (“The Attorney
General shall have prosecutorial jurisdiction over all violations committed under this act . . . [and
t]he district attorney of any county in which a violation occurred has concurrent powers and
responsibilities with the Attorney General over such violations.”); Pa.R.Crim.P. 506(A) (“When
the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the
Commonwealth, who shall approve or disapprove it without unreasonable delay.”).
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the Emergency Petition for Sanctions with prejudice,° and Observers filed the instant
appeal of the trial court’s order.
On appeal,’ Observers claim that the trial court erred in: (1)
determining that they lacked standing to intervene; (2) determining that they acted
with undue delay implicating the doctrine of laches; (3) concluding that their
Petitions are not supported by a “scintilla” or “smidgen” of legal merit or that their
claims are “baseless”; and (4) concluding that the Supreme Court opinion in Jn re
Canvassing Observation is controlling in this matter or that their lack of citation to
that opinion supported denying the requested relief.*
© The trial court dismissed the Petitions on the following bases: (1) there was no active
case or controversy in which Observers may intervene and the Committee adequately represented
their interests in the proceedings in which the trial court issued its November 4, 2020 order; (2)
the trial court lost jurisdiction over the matter 30 days after issuing its November 4, 2020 order
and Observers neither sought to intervene or enforce the order, or appeal the order to this Court,
within that 30-day period; (3) the doctrine of laches precluded the grant of the requested relief; (4)
as part of the requested relief, Observers sought an order, declaration, or injunction precluding the
winning U.S. House candidate from exercising official authority, but Observers failed to join that
candidate as an indispensable party; (5) the matter was moot based on the Pennsylvania Supreme
Court opinion in Jn re Canvassing Observation, 241 A.3d 339, 350-51 (Pa. 2020), upholding the
limitations on observers imposed by the Philadelphia County Board of Elections; and (6)
Observers sought discretionary relief from the trial court, but had unclean hands by failing to
apprise the court of the Supreme Court’s opinion in Jn re Canvassing Observation. See Brief of
Appellants, Exhibit A at 1-11.
’ This Court’s scope of review from the denial of a petition to intervene is limited to
determining whether the trial court abused its discretion or committed an error of law. Wells Fargo
Bank, N.A. v. James, 90 A.3d 813, 815 n.5 (Pa. Cmwith. 2014). Likewise, this Court’s scope of
review when considering an appeal from the denial of a motion for civil contempt is limited to
considering whether the trial court abused its discretion or committed an error of law. American
Federation of State, County, and Municipal Employees, District Council 88 v. Lehigh County, 541
A.2d 46, 47 (Pa. Cmwlth. 1988).
8 On March 10, 2021, the Board filed a Motion to Quash or Dismiss Appeal and for Award
of Fees in which it asserts that this Court lacks subject matter jurisdiction because Observers filed
their Petition to Intervene more than 10 days after the trial court issued its January 12, 2021 order,
(Footnote continued on next page...)
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and because the trial court’s order denying intervention is a non-appealable interlocutory order.
However, because the instant appeal flows from the trial court’s order denying Observers’
Emergency Petition to Intervene and Emergency Petition for Sanctions, and not a proceeding
initiated under the provisions of the Election Code, the instant appeal is timely and we have
jurisdiction over the appeal because Observers’ notice of appeal was filed within 30 days of the
trial court’s final order. See Section 5571(a) of the Judicial Code, 42 Pa. C.S. §5571(a) (“The time
for filing an appeal ... in ... the Commonwealth Court shall be governed by general rules.”);
Pa.R.A.P. 903(a) (“[T]he notice of appeal required by [Pa. R.A.P.] 902 (manner of taking appeal)
shall be filed within 30 days after the entry of the order from which the appeal is taken.”).
Additionally, because the trial court’s order disposes of all claims against all parties, it is an
appealable final order. See Section 5105(a)(1) of the Judicial Code, 42 Pa. C.S. §5105(a) (“There
is aright of appeal . . . from the final order (including an order defined as a final order by general
rule) of every ... [cJourt ... of this Commonwealth to the court having jurisdiction of such
appeals.”); Pa.R.A.P. 341(b)(1) (“A final order . . . disposes of all claims and of all parties[.]’).
Finally, the Board seeks the award of attorneys’ fees under Pa.R.A.P. 2744(1), which states
that “an appellate court may award as further costs damages as may be just, including ... a
reasonable counsel fee . . . if it determines that an appeal is frivolous or taken solely for delay or
that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or
vexatious.” However, as this Court has explained:
The imposition of counsel fees is solely within the discretion of the
court. In determining the propriety of such an award, the court is
“ever guided by the principle that an appeal is not frivolous simply
because it lacks merit. Rather, it must be found that the appeal has
no basis in law or fact.” Such a high standard is imposed “in order
to avoid discouraging litigants from bringing appeals for fear of
being wrongfully sanctioned.”
Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 30 A.3d 568, 576
(Pa. Cmwlth. 2011) (citations omitted).
Upon review of the relevant considerations, we exercise our discretion and decline to award
attorneys’ fees in this case. Ultimately, the instant matter flows from the trial court’s November
4, 2020 order directing how Observers may participate in the pre-canvass and canvassing of ballots
following the contested November 3, 2020 General Election. Clearly, the necessity of such an
order demonstrates the high level of interest and participation by all involved in the electoral
process in that election. Although we have determined that the claims raised in this appeal are
without merit, we do not believe that the instant appeal meets the high standard outlined above to
support an award of attorneys’ fees. Accordingly, based on the foregoing, we deny the Board’s
Motion to Quash or Dismiss Appeal and for Award of Attorneys’ Fees.
However, upon review, we have determined that this matter was ably
disposed of in the comprehensive and well-reasoned Order and Opinion of the
Honorable John F. Capuzzi, Sr., disposing of Observers’ Emergency Petition to
Intervene and the Emergency Petition for Sanctions. Accordingly, we affirm the
trial court’s order on the basis of the Order and Opinion in Delaware County
Republican Executive Committee v. Board of Elections (C.P. Del., No. CV-2020-
007523, filed January 13, 2021).?
MICHAEL H. WOSJCIK, Judge
Judge Covey did not participate in the decision of this case.
Judge Fizzano Cannon did not participate in the decision of this case.
Judge Crompton did not participate in the decision of this case.
? On November 17, 2021, prior to argument, the Board filed an unopposed Application for
Leave to File Exhibit to supplement its appellate brief with an exhibit that is referenced in the brief,
but was inadvertently left off of the brief that was filed in this Court. The Board’s unopposed
Application is granted. See, e.g., Commonwealth v. Gambal, 561 A.2d 710, 714 (Pa. 1989) (“Our
Rules of Appellate Procedure provide that they are to be ‘liberally construed to secure the just,
speedy and inexpensive determination of every matter to which they are applicable.’ Pa.R.A.P.
105(a). Allowing parties to amend their briefs permits review of the discretionary aspects of
sentencing to proceed in an efficient and just manner.”).
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Delaware County Republican
Executive Committee
v. : No. 125 C.D. 2021
Board of Elections
Appeal of: Gregory Stenstrom and
Leah Hoopes
ORDER
AND NOW, this 13" day of December, 2021, the Board of Elections’
unopposed Application for Leave to File Exhibit is GRANTED. The order of the
Delaware County Court of Common Pleas dated January 12, 2021, is AFFIRMED.
The Board of Elections’ Motion to Quash or Dismiss Appeal and for Award of
Attorneys’ Fees is DENIED.
MICHAEL H. WOSJCIK, Judge
ORIGINAL
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL DIVISION
DELAWARE COUNTY REPUBLICAN NO.: CV-2020-007523
EXECUTIVE COMMITTEE
Vv.
BOARD OF ELECTIONS
ORDER
Before the Court are two Petitions. The first is the Emergency Petition to Intervene of
. Candidate for Political Office, Dasha Pruett, and Observers Gregory Stenstrom and Leah Hoopes.
The second is an Emergency Petition Against the Board of Elections for Contempt for Violating
Judge Capuzzi’s 1 1/4/2020 Order and for Violating Election Code Provisions Allowing Observers.
For the reasons set forth in the Opinion below, both Petitions are DENIED WITH PREJUDICE.
OPINION
Without per adventure, the general election of 2020 was the most contentious, most
impassioned and most disputed in modern history. While this Court is not oblivious to this, it is
the duty of the judiciary to apply the rule of Jaw free and clear of outside influences or the clamor
that has arisen. A fair and impartial jurist who adheres to the Constitution of the United States and
the Constitution of the Commonwealth of Pennsylvania in accordance the oath of law that binds
the conscience is. what is mandated and what is expected. It is through this lens that the Court has
addressed the issues presented.
The essence of the Petitions are as follows: First Petitioners seek to intervene in the original
matter as captioned above. Second, Petitioners seek to have the Board held in contempt for
1
=
ae
allegedly violating the Court’s order as follows: Petitioners claim that they were not granted full
access to a rear room where mail-in and absentee ballots were being resolved; observers were not
c
permitted to enter a rear locked area where ballots were stored; and observers were confined to a
“pen” which did not allow meaningful access to observe/view the area where the sorting machine
was in use. As a result, Petitioners seek the USB V cards that when inserted into the computer
tabulated the votes and to enjoin the United States House of Representatives from seating Dasha
Pruett’s opponent. These claims lack a scintilla of legal merit.
At the very outset it is extremely important to highlight that the Delaware County
Republican Executive Committee, which was the party that filed the original petition, has not
raised an issue with the Board of Elections compliance with the Court’s Order of November 4,
2020. Likewise, the Republican Executive Committee has not filed a response to the Petitions
presently before the Court. Furthermore, each alleged factual averment within the petitions was
known weeks before this 11" hour, pre-holiday filing of December 22, 2020 and, thus, did not
constitute such an emergency that the Board of Elections not be given adequate time to research
and respond accordingly.’
In order to place the current controversy in perspective and to appreciate the canvassing of
ballots, it is necessary to set forth the election process of 2020, which, in this Commonwealth, was
substantially different from prior elections. Following the general election of 2016, there was
grave concern that foreign governments had interfered with the election process. There was further
concern that these foreign governments or others could or may have hacked into the computerized
voting systems employed in many jurisdictions. Additionally, some of these computerized
1 The time frame set forth in the Petitions was between November 3, 2020 and November 5, 2020, and whereas
the Petitions were not filed until December 22, 2020, the Court deemed these not to be emergent and did
mandate that the Board of Elections be given adequate time to respond.
2
systems lacked a paper trail that could be subject to audit, if needed or required, in order to validate
the count. Finally, it was crystal clear that the expected voter turnout would far surpass recent
elections. It is with this backdrop.that Governor Wolf and the Legislature changed, altered, and/or
modified the manner in which elections in the Commonwealth are conducted.
In 2018, US. Department of Homeland Security Secretary, Kirstjen Nielsen, called on all
state and local election officials to make certain that by the 2020 presidential election every
American votes on a system that produces a paper record or ballot that can be checked and verified
by the voter and audited by election officials. The Pennsylvania Department of State informed all
67 counties that it must have voting machines that produce voter-verifiable records and meet 21°
century standards of security, auditability and accessibility by December 31, 2019. As of June
2020, all Pennsylvania counties had complied. See, Department of State website.
In addition to absentee ballots, the Legislature significantly modified the election process
by adding a provision which enabled any qualified elector to apply for a mail-in ballot without
restriction or reason. 25 Pa. C.S. §3150,12 (a). See, Section 14 of Act 2019, October 31, P.L. 552,
No. 77.
NO CASE OR CONTROVERSY IN WHICH TO INTERVENE
The original petitioner was the Delaware County Republican Executive Committee. The
original petitioner has not challenged this Court’s original ruling and order, nor has it filed anything
in response to the current petitioners’ request to intervene. Therefore, there is nothing before this
court that would require the intervention of a third-party.
Pennsylvania Rule of Civil Procedure 2327 sets forth who may intervene. The Rule is as
follows: “At any time during the pendency of an action, a person not a party thereto shall be
permitted to intervene therein, subject to these rules if:
(1) The entry of judgment in such action or the satisfaction of such judgment
will impose any liability upon such person to indemnify in whole or in
part the party against whom judgment may be entered; or
(2) Such person is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or an officer
thereof; or
(3) Such person could have joined as an original party in the action or could
have been joined therein; or
(4) The determination of such action may affect any legally enforceable
interest of such person whether or not such person may be bound by a
_ Judgment in the action.
Pursuant to Pa. R.C.P. 2329, the court may refuse an application for intervention where
the interest of the petitioner is adequately represented; or the petitioner has unduly delayed in
making application for intervention. Here, the interests of the observers were more than adequately
represented by the Delaware County Republican Executive Committee at the relevant time.
Furthermore, the alleged violation occurred on November 5", making this post-election
application of December22nd untimely. Thus, the denial.
Ironically, in the very action they wish to be part of, Petitioners’ claim that the Delaware
County Republican Executive Committee does not adequately represent their interest. As the
transcript of the emergency hearing that was held the evening of November 4, 2020 demonstrates,
the resolution of the controversy adequately addressed the claims of the original petitioner who
stood in the shoes of the Republican observers and candidates. Additionally, the ruling by this
court fully comported with the law as it pertained to observers and no appeal was taken of the
order that was issued.
The third-party cannot latch onto the original petition. If the third-party truly believed
there was a violation of this court’s order, then is should have filed a new action under a separate
docket number.
LACK OF JURISDICTION
The Order that Petitioners contend has been violated was issued on November 4, 2020.
That Order specifically addressed the issue of when and where observers were permitted.
Once an order is issued, the Court of Common Pleas retains jurisdiction for thirty (30) days.
During this thirty-day period, the court may modify or rescind the original order. 42 Pa. C.S.
§55085.
In the instant matter, the Petitioners could have challenged the manner in which the Board
of Elections complied with the Order at the time they allege they were denied the opportunity to
observe and requested a modification of the Order. As noted in the Petition, observer Stenstrom
called this judge’s chambers twice on November 5" and was advised by the judge’s staff to obtain
legal representation. This was not done.
It must also be noted that during this thirty-day period, the observers could have filed an
appeal to the Commonwealth Court if they believed this Court’s directive did not comport with
election law. Again, this was not done.
DOCTRINE OF LACHES
Petitioners’ challenge violates the doctrine of laches given their utter failure to act with due
diligence in commencing this action. Laches is an equitable doctrine that bars relief when a
complaining party is guilty of want of due diligence in falling to promptly institute an action in
prejudice of another. Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998).
A plain reading of the Petition for Sanctions sets forth allegations that occurred during the
pre-canvassing and canvassing of election ballots. Assuming arguendo, that the allegations
enjoyed even some smidgen of merit, the remedy rested at the time of the occurrence, not seven
weeks after the canvassing was completed. This is the epitome of lack of due diligence.
INDISPENSIBLE PARTY
An indispensable party is one whose rights are directly connected with and affected by the
litigation that he must be a party of record to protect such rights. Columbia Gas Transmission
Corporation v. Diamond Fuel Company, et al., 464 Pa. 377, 346 A.2d 788 (Pa. 1975). It has long
been established that unless all necessary and indispensable parties are parties to the action, the
Court is powerless to grant relief. Tigue v, Basalyga, 451 Pa. 436, 304 A.2d 119 (Pa. 1973). Under
Pennsylvania law, the failure to join an indispensable party implicates the trial court’s subject
matter jurisdiction. Orvian v. Mortgage IT., 118 A.3d 403 (Pa. Super. 2015).
Petitioners, in the ad damnum clause, seek an order, declaration and/or injunction enjoining
the “winning” U.S. House of Representative canclidate from exercising official authority. The
Court takes judicial notice that the winning candidate was U.S. Representative Mary Gay Scanlon.
Representative Scanlon has a direct interest in this matter, as it seeks to prevent her from exercising
her duties in the House of Representatives. Therefore, Representative Scanlon is an indispensable
party; yet, Petitioners never served her with process, thereby denying her the right to be heard.
Furthermore, failure to do so deprives this court of subject matter jurisdiction.
MOOTNESS
The identical issue before this court has been addressed by our Supreme Court. IN RE:
Canvassing Observation, Appeal of: City of Philadelphia Board of Elections, 241 A.3d 339 (Pa.
2020) decided November 17, 2020. In advance of the election, the Philadelphia Board of Elections
arranged workspace for its employees at the Philadelphia Convention Center for the pre-
canvassing and canvassing of mail-in and absentee ballots.” Discreet sections of a designated area
within the Convention Center were devoted to various aspects of the process.
Pursuant to the election code, designated observers were permitted to physically enter the
Convention Center hall and observe the entirety of the process from behind a waist-high security
fence that separated the observers from the work-space of Board employees. At 7:45 a.m. on the
morning of the election, the Trump Campaign filed a suit challenging the location where observers
could watch the process. A hearing was held at which time the attorney for the Campaign argued
“that Section 3 146.8(b) of the Election Code- which allows designated watchers or observers of
a candidate to be present when the envelopes containing official absentee ballots and mail-in
ballots are opened and when such ballots are counted and recorded, 25 P.S. §3146.8(b) — requires
that the observers have the opportunity to “meaningfully” see the process. In rejecting the
argument, the trial court noted that Section 3146.8 contained no language mandating “meaningful
observation”; rather, the court interpreted the section as requiring only that the observers be
allowed to be “present” at the opening, counting and recording of the absentee or mail-in ballots.”
Id. @ 343. The trial court also noted that Section 4146.8 provides for no further specific activities
for the watchers to do other than to simply be present. The court went onto opine that, under this
2 The Delaware County Board of Elections leased space at the Wharf Office Building in Chester in order to
accommodate the work staff and necessary machines,
section, watchers are not directed to audit ballots or to verify signatures, to verify voter addresses,
or to do anything else that would require a watcher to see the writings or markings on the outside
of either envelope, including challenging the ballot or ballot signatures. Jd.
Later, on election day, the trial court denied the Campaign’s request that the Board modify
the work area to allow for closer observation of the on-going ballot canvassing. The Campaign
immediately appealed to the Commonwealth Court, wherein Judge Fizzano-Cannon held a status
conference on the night of November 4, 2020 and issued an order on the morning of November 5,
2020, which reversed the trial court. Judge Fizzano-Cannon’s order directed the trial court to enter
an order by 10:30 a.m. to require “all candidates, watchers, or candidate representatives to be
permitted to observe all aspects of the canvassing process within 6 feet, while adhering to COVID-
19 protocols.” Id. 343, 344. In her opinion filed later that day, Judge Fizzano-Cannon found
Section 3146.8(b) to be ambiguous and that in order for representatives to fulfill their reporting
duty to their candidate, they are required to “have the opportunity to observe the process upon
which they are to report, and so mere physical presence of the observers was insufficient to
guarantee this “meaningful observation.” Jd. @ 344. The Board then filed an emergency petition
for allowance of appeal with Supreme Court on the morning of November 5, 2020.
By Order dated November 9, 2020, the Supreme Court granted the Petition and set forth
three issues, one of which was whether the Commonwealth Court erred in reversing the trial court.
At the outset, the Court noted that because ballots were still being canvassed by the Board, the
question was not moot and thus, ripe for determination.
The Supreme Court addressed the issue by stating that 3146.8(g)(1.1) requires only that an
authorized representative”
“be permitted to remain in the room in which the absentee ballots and mail-in
ballots are pre-canvassed (emphasis added) and Section 3146.8(g)(2) likewise
mandates merely that an authorized representative “be permitted to remain in the
room in which the absentee ballots and the mail-in ballots are canvassed.
(emphasis added). While the language contemplates an opportunity to broadly
observe the mechanics of the canvassing process, we note that these provisions
do no not set a minimum distance between authorized representatives and
canvassing activities occurring while they “remain in the room.” The General
Assembly, had it so desired, could have easily established such parameters:
however, it did not. It would be improper for this Court to judicially rewrite the
- statute by imposing distance requirements where the legislature has, in the
exercise of its policy judgment, seen fit not to do so. See Sivick v. State Ethics
Commission __Pa.__, 238 A.3d 1250 (2020). Rather we deem the absence of
proximity parameters to reflect the legislature’s deliberate choice to leave such
parameters to the informed discretion of county boards of elections, who are
empowered by Section 2642(f) of the Election Code to make and issue such rules,
regulations and instructions, not inconsistent with law, as they may deem
necessary: for the guidance of ... elections officers.” IN RE: Canvassing
Observation, Appeal of: City of Philadelphia Board of Elections, 349, 350.
In -full accordance with the Supreme Court holding, the Delaware County Board of
Elections was charged with establishing observation areas. Prior to the above Supreme Court
ruling, this court entered an order which required the Board to allow for designated areas and times
for observation activities which deviated from the areas established by the Board. The Board
adhered to this order. Strikingly, at the time of the filing of this frivolous action, the issue now
brought forth by the Petitioners had been adjudicated by the highest court in the Commonwealth,
ie., the Delaware County Board of Elections had full authority to establish observation areas as it
deemed fit. Consequently, there is a total absence of legal merit in the Petitions.
RULE OF PROFESSIONAL CONDUCT
Petitioners, through counsel, pray the court hold the Board or Elections in contempt for
disobeying the Order of November4, 2020; hold the Board of Elections guilty of a misdemeanor
for violation of provisions of the Election Code; require the Board of Elections to pay a $1,000.00
sanction to Dasha Pruett; and sentence members of the Board of Elections to 1 year in prison.
Rule 3.3. requires Candor Toward the Tribunal. Pursuant to Section 2, a lawyer shall not
- knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
The above cited Supreme Court opinion was published on November 17, 2020, No where
in the Petition, the accompanying memorandum of law, or Petitioner’s Reply to Response of the
Board of Elections does counsel for the Petitioners reference, let alone cite, this opinion which
contains the controlling law. As one who obviously has invested significant time in crafting the
legal positions of the client, due diligence mandated that counsel keep abreast of the legal
landscape which was unfolding, and which was published on the Court’s web site, and duly noted
in newspapers of general circulation and The Legal Intelligencer. To neglect to exercise due
diligence, when the claims made seek to alter or change the election canvassing process and the
election results, is unconscionable and inexcusable. Consequently, this dereliction of duty has
caused this court, court staff and the respondent to waste valuable time when the resultant ruling
was preordained. While the Petitioners seek sanctions against the Board of Elections, they come
before this court with unclean hands and they themselves are the ones whose conduct is
contemptable.
CONCLUSION
The Delaware County Board of Elections had the authority to establish observation areas
in the facility where the pre-canvassing and canvassing of the absentee ballots and mail-in ballots
was taking place. In response to a petition by the Delaware County Republican Executive
Committee, this Court ordered the Board to allow for closer observation at specific locations and
specific time intervals, as the case warranted. The Board fully complied with this order.
10
The Petitions herein are untimely and do not comport with the law. As our Supreme Court
stated, it is the responsibility of the legislature to define distance parameters for positioning of
observers and, absent these, the responsibility lies with county board of elections.
BY THE COURT:
Ce: Deborah Silver, Esquire
Manly Parks, Esquire
William Martin, Esquire
11
FILED
01-13-2021 09:15 AM
OFFICE OF JUDICIAL SUPPORT
DELAWARE COUNTY, PA