A. Ioannidis v. T. Wolf, in his official capacity as Gov. of the Com. of PA ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew Ioannidis, :
:
Petitioner :
:
v. : No. 635 M.D. 2020
: Argued: June 7, 2021
Tom Wolf, in his official capacity :
as Governor of the Commonwealth of :
Pennsylvania and Veronica :
Degraffenreid, in her official capacity :
as Acting Secretary of the :
Commonwealth of Pennsylvania, :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 8, 2021
Before the Court is the Application for Summary Relief in the Form of
a Motion to Dismiss Amended Petition for Review as Moot (Application to Dismiss)
and Preliminary Objections to Amended Petition for Review (POs) of Tom Wolf, in
his official capacity as Governor of the Commonwealth of Pennsylvania (Governor),
and Veronica Degraffenreid, in her official capacity as Acting Secretary of the
Commonwealth of Pennsylvania (Secretary) (collectively, Respondents), to the
Amended Petition for Review in the Nature of a Petition and Complaint in Equity
(Petition) filed by Andrew Ioannidis (Petitioner) in our original jurisdiction seeking
declaratory and injunctive relief, and an audit and recount of the results of the
November 3, 2020 General Election (2020 General Election) relating to the election
of electors of President and Vice-President of the United States. We grant the
Application to Dismiss, dismiss the Amended Petition as moot, and overrule the POs
as moot.
On December 6, 2020, Petitioner filed a Petition for Review in the
Nature of a Petition for Preliminary Injunctive Relief, Writ of Mandamus, and
Declaratory Judgment (12/6/20 Petition) in our original jurisdiction, asking this
Court “to immediately enter an Order Declaring the 2020 General Election to be
contested;” to order “an immediate hearing to establish an expedited discovery
schedule;” to issue “a writ of mandamus in his favor and against Respondents
compelling Respondents to decertify the 2020 General Election results and
compelling the Respondents to conduct a full audit and recount whereby only the
legal votes are counted;” and to issue an “injunction that prohibits [] Respondents
from taking official action to tabulate, compute, canvass, certify, or otherwise
finalize the results of the [2020 General] Election as to the federal offices” under the
relevant enumerated provisions of the Pennsylvania Election Code (Election Code).1
12/6/20 Petition at 8-9.
On December 10, 2020, Petitioner filed an Amended Petition for
Review in the Nature of a Petition for a Writ of Mandamus and Request for
Preliminary and Permanent Injunctive Relief (12/10/20 Amended Petition) in our
original jurisdiction, asking this Court to “issue a Writ of Mandamus directing [the
Governor] to withdraw the certification of the 2020 [General Election];” “to
withdraw the certificates of election issued to the Democratic electors as a result
thereof;” to direct[ the Secretary] to satisfy her duties under the Election Code and
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
2
conduct a full audit of the 2020 General Election whereby only the legal votes are
counted;” and to issue preliminary and permanent injunctions “to prevent the
substantial injury and immediate and irreparable harm that Petitioner would suffer
if Respondents are permitted to violate the laws of the Commonwealth of
Pennsylvania and the United States Constitution” based on “their obligation to
enforce and comply with” the Election Code. 12/10/20 Amended Petition at 7-8.
On December 11, 2020, Petitioner filed an Application for Emergency
Writ of Mandamus and for Emergency Preliminary Injunction (12/11/20
Application) asking this Court to “issue an Immediate Emergency Writ of
Mandamus directing [the Governor] to withdraw the certification of the 2020
[General Election];” “to withdraw the certificates of election issued to the
Democratic electors as a result thereof;” to “preliminarily enjoin [the Secretary]
from laying the returns before [the Governor];” to “enjoin[ the Governor] from
enumerating and ascertaining the number of votes given for each person so voted
for;” to “enjoin[ the Governor] from causing any certificate of election to be
delivered to any presidential electors;” and to “immediately schedule a preliminary
hearing.” 12/11/20 Application at 24-25. By December 14, 2020 order,2 this Court
2
On December 14, 2020, the Pennsylvania Electors of President and Vice-President of the
United States, who were elected in the 2020 General Election, executed the Certificate of Votes
for President and Vice-President for Joseph Biden and Kamala Harris, respectively. See
https://www.archives.gov/files/electoral-college/2020/vote-pennsylvania.pdf (last visited May 28,
2021); Amended Petition ¶¶160, 161 (“[The Governor] signed the Certificate of Ascertainment for
the slate of electors for Joseph R. Biden as President and Kamala D. Harris as Vice-President of
the United States[, and] Respondents issued certificates of election to Democrat[ic] Presidential
Electors.”). See also U.S. Const. art. II, §1, cl. 2 (“Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress[.]”; U.S. Const. amend. XII
(“The Electors shall meet in their respective states and vote by ballot for President and Vice-
President [. . .]; they shall name in their ballots the person voted for as President, and in distinct
(Footnote continued on next page…)
3
denied the 12/11/20 Application based on the reasons set forth by this Court in
Metcalfe v. Wolf (Pa. Cmwlth., No. 636 M.D. 2020, filed December 9, 2020), for
denying the petitioners’ emergency motion therein seeking to compel the Governor
to withdraw the certification of the results of the 2020 General Election and to
withdraw the certificates of election issued to the Democratic Presidential and Vice-
Presidential Electors.
Subsequently, Petitioner filed yet another amended petition for review
and three additional emergency applications seeking to decertify the results of the
2020 General Election. By January 8, 2021 and February 11, 2021 orders, this Court
denied the emergency applications, struck the amended petitions for review, and
prohibited Petitioner from filing additional applications for emergency relief or
amended petitions for review without leave of court. Nevertheless, in our February
11, 2021 order, this Court directed Respondents to file responsive pleadings to the
instant Amended Petition, which was filed on January 19, 2021.
In the 12-count Amended Petition, Petitioner alleges the violation of a
number of his constitutional rights with respect to the conduct of the 2020 General
Election. As Petitioner explains, in order to vindicate these rights:
Counts I through X of Petitioner’s [Amended Petition]
pray for preliminary and permanent injunctive relief,
declaratory relief, non-discriminatory investigation and
enforcement of violations, an Order requiring
ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted
for as President, and of all persons voted for as Vice-President, and of the number of votes for
each, which lists they shall sign and certify, and transmit sealed to the seat of the government of
the United States, directed to the President of the Senate[.]”); Electoral Count Act of 1887, 3 U.S.C.
§9 (“The electors shall make and sign six certificates of all the votes given by them, each of which
certificates shall contain two distinct lists, one of the votes for President and the other of the votes
for Vice-President, and shall annex to each of the certificates one of the lists of the electors which
shall have been furnished to them by direction of the executive of the State.”).
4
Respondents to satisfy their duties under the law; an Order
requiring Respondents to effectuate a full audit and
recount of Pennsylvania’s 2020 Presidential Election, and
any other relief provided by law.
Petitioner’s Answer and Brief in Opposition to Respondents’ Application to Dismiss
(Answer) at 12-13. In Count XI, Petitioner asks this Court to “issue a Writ of
Mandamus directing [the Governor] to withdraw the certification of the 2020
Presidential election;” directing him “to withdraw the certificates issued to the
Democratic electors as a result thereof;” and to “direct[ the Secretary] to satisfy her
duties under the law and conduct a full audit and recount of the 2020 General
Election whereby only legal votes are counted.” Amended Petition at 28. Finally,
in Count XII, Petitioner asks this Court to issue “[a]n emergency preliminary
injunction and permanent injunction [because they] are necessary to prevent
immediate and irreparable harm to Petitioner that cannot be compensated by
damages” based on the purported improprieties with respect to the conduct of the
2020 General Election. Id. at 29.
On February 19, 2021, Respondents filed the Application to Dismiss,
asserting, inter alia, that Joseph Biden and Kamala Harris were inaugurated as
President and Vice-President of the United States on January 20, 2021,3 and that
courts have held that election claims, including those
requesting injunctive relief, are moot after an inauguration
is held. See Sablosky v. McConnell [(D.D.C., Civil Action
No. 16–2528, filed April 3, 2017), slip op. at 1 n.1]
(denying request for injunction as moot because electoral
vote was counted and former President Trump’s
inauguration had been held); Conant v. Brown, 248
F. Supp. 3d 1014, 1019 (D. Or. 2017)[, aff’d, 726 F. App’x
611 (9th Cir. 2018)] (holding constitutional claims
regarding state’s processes for voting in presidential
3
See U.S. Const. amend. XX, §1 (“The terms of the President and Vice-President shall end
at noon on the 20th day of January, . . . and the terms of their successors shall then begin.”).
5
elections were moot because 2016 election had been held);
Newdow v. Bush, 391 F. Supp. 2d 95, 107 (D.D.C. 2005)
(holding constitutional claims with respect to inauguration
moot because inauguration had been held).
Application to Dismiss ¶8. Moreover, “Pennsylvania’s election results have long
since been certified, its electors voted and the Inauguration held. See Sibley v.
Alexander, 916 F. Supp. 2d 58, 62 (D.C. Cir. 2013) (holding elections claims
seeking to enjoin electors from casting their ballots moot after ballots were cast).”
Id. ¶10. Finally, Respondents assert that “Petitioner’s claims are moot for the
independent reason that the relief [that he] seeks, even assuming it could be granted,
would not change the results of the election.” Id. ¶11. Specifically, the “final
Electoral College votes count was 306 for Joseph Biden and 232 for Donald Trump[,
see https://www.archives.gov/electoral-college/2020 (last visited May 28, 2021),”]
so that “any change in Pennsylvania’s 20 electoral votes could not alter the election
of President Biden and Vice-President [Harris].” Id. (footnote omitted).
In his Answer, Petitioner contends that the instant matter is not moot
because this matter is not an election contest as he “is not alleging violations of the
Election Code” but, rather, “Petitioner has unequivocally invoked the First and
Fourteenth Amendments to the United States Constitution and alleged violations
thereof,” “and in respect to Petitioner’s Count in Mandamus, whether Respondents’
conduct was arbitrary, fraudulent, or based on a mistaken view of the law.” Answer
at 3, 4. In support, in the Amended Petition, Petitioner set forth specific allegations4
4
As this Court has explained:
Pennsylvania is a fact-pleading state and [Pa. R.C.P. No.] 1019(a)
provides that “[t]he material facts on which a cause of action or
defense is based shall be stated in a concise and summary form.”
Specifically, a plaintiff is required “to plead all the facts that he must
prove in order to achieve recovery on the alleged cause of action.”
(Footnote continued on next page…)
6
relating to the conduct of the 2020 General Election through which his foregoing
constitutional rights were purportedly abridged. See Amended Petition at 4-15, 15-
16, 16-17, 17-18, 19, 20, 21-22, 23, 24, 25, 26-27, 28, 29.5
Pa. R.A.P. 1972(a)(4) states that “[e]xcept as otherwise prescribed by
this rule, subject to Pa. R.A.P. 123 [(relating to filing an application for relief)], any
party may move . . . [t]o dismiss for mootness.” This Court has observed:
As a general rule, courts will not decide moot cases.
“[A] case is moot if there is no actual case or controversy
in existence at all stages of the controversy.” As this Court
explained[:]
Mootness problems arise in cases involving litigants
who clearly had one or more justiciable matters at
the outset of the litigation, but events or changes in
the facts or law occur which allegedly deprive the
litigant of the necessary stake in the outcome after
the suit is underway.
It is well settled that the courts “do not render decisions in
the abstract or offer purely advisory opinions.” Judicial
Legal conclusions and general allegations of wrongdoing, without
the requisite specific factual averments or support, fail to meet the
pleading standard.
McCulligan v. Pennsylvania State Police, 123 A.3d 1136, 1141 (Pa. Cmwlth. 2015) (citations
omitted).
5
Petitioner first raised the issue regarding the constitutionality of the Electoral Count Act
of 1887, 3 U.S.C. §§5 and 15, in his January 8, 2021 Reply and Application for Leave Nunc Pro
Tunc relating to one of his emergency applications; therefore, as it was not originally raised in his
Amended Petition for Review, it is waived. See, e.g., Pennsylvania Medical Providers Association
v. Foster, 613 A.2d 51, 53 n.3 (Pa. Cmwlth. 1992) (“We make no ruling regarding whether the
regulations are themselves vague or inconsistent with the [Motor Vehicle Financial Responsibility
Law, 75 Pa. C.S. §§1701-1799.7,] as petitioners argue in their brief, because petitioners have
waived that issue by not amending their petition for review to allege any problem with the
regulations.”).
7
intervention “is appropriate only where the underlying
controversy is real and concrete, rather than abstract.”
As with most rules of general application, there are
exceptions to the mootness doctrine for circumstances
where “(1) the conduct complained of is capable of
repetition yet evading review, or (2) involves questions
important to the public interest, or (3) will cause one party
to suffer some detriment without the Court’s decision.”
Notwithstanding these exceptions, however, we note that
“‘[c]onstitutional questions are not to be dealt with
abstractly.’” This Court, therefore, should be even more
reluctant to decide moot questions which raise
constitutional issues. Instead, we “prefer to apply the
well-settled principles that [courts] should not decide a
constitutional question unless absolutely required to do
so.”
Costa v. Cortes, 142 A.3d 1004, 1016-17 (Pa. Cmwlth.), aff’d, 145 A.3d 721 (Pa.
2016) (citations omitted). See also Wortex Mills v. Textile Workers of America, 85
A.2d 851, 857 (Pa. 1952) (“It is only in very rare cases where exceptional
circumstances exist or where matters or questions of great public importance are
involved, that this court ever decides moot questions or erects guideposts for future
conduct or actions.”); Mistich v. Pennsylvania Board of Probation and Parole, 863
A.2d 116, 121 (Pa. Cmwlth. 2004) (“‘[M]ootness, however it may have come about
simply deprives us of our power to act; there is nothing for us to remedy, even if we
were disposed to do so. We are not in the business of pronouncing that past actions
which have no demonstrable continuing effect were right or wrong.’”) (citation
omitted).
Assuming that the allegations contained in the Amended Petition are
true, Petitioner may well have asserted a viable claim with respect to the conduct of
the 2020 General Election at the inception of this case. However, the subsequent
certification of the election results and the inauguration of the new President and
8
Vice-President on January 20, 2021, have rendered any claim moot. See generally
Bognet v. Degraffenreid, ___ U.S. ___ (U.S., No. 20-740, filed April 19, 2021)
(“The petition for a writ of certiorari is granted. The judgment is vacated, and the
case is remanded to the United States Court of Appeals for the Third Circuit with
instructions to dismiss the case as moot. See United States v. Munsingwear, Inc.,
340 U.S. 36 (1950).”); Conant, 248 F. Supp. 3d at 1019 (“I agree with Defendants
that the challenges to the 2016 certified election results and ascertainment of electors
are moot because that process is complete, the electors have performed their duties,
and the President has been inaugurated.”).
Because this Court may not grant Petitioner the injunctive or mandamus
relief that he requests, the instant matter is deemed to be moot. See Graziano
Construction Company, Inc. v. Lee, 444 A.2d 1190, 1193 (Pa. Super. 1982)6 (“[W]e
cannot enter judgments or decrees to which effect cannot be given. The rule is that
where . . . pending an appeal, an event occurs which renders it impossible for the
appellate court to grant any relief, the appeal will be dismissed.”) (citations omitted);
18 Standard Pa. Practice 2d §99.7 (2021) (“Mandamus is unavailable where it would
be futile or ineffectual by reason of the respondent’s inability to comply therewith.
Mandamus also will not lie . . . where only a moot question, and no justiciable issue,
is presented.”) (footnotes omitted).
Moreover, we are not inclined to apply any of the foregoing exceptions
to the mootness doctrine in this case because Petitioner failed to avail himself of the
statutory remedies provided in the Election Code prior to filing the instant Amended
Petition for Review. “[A]n action seeking declaratory judgment is not an optional
6
Although the decisions of the Superior Court are not binding upon this Court, they may
serve as persuasive authority. Lerch v. Unemployment Compensation Board of Review, 180 A.3d
545, 550 (Pa. Cmwlth. 2018).
9
substitute for established or available remedies and should not be granted where a
more appropriate remedy is available.” Pittsburgh Palisades Park, LLC v.
Pennsylvania State Horse Racing Commission, 844 A.2d 62, 67 (Pa. Cmwlth. 2004)
(citation omitted).
With regard to any purported impropriety in the conduct of the 2020
General Election, as alleged in the Amended Petition for Review, this Court has
noted:
To begin, the Pennsylvania Supreme Court has
stated that “[o]ur past cases have adhered firmly to the
principle that the proper remedies for violations of the
Election Code are to be found within the comprehensive
legislative framework of the [Election] Code itself.”
Brunwasser v. Fields, 409 A.2d 352, 354 (Pa. 1979). See
also Reese v. County Board of Elections of Lancaster
County, 308 A.2d 154, 158 (Pa. Cmwlth. 1973)
(“‘[E]lection contest’ proceedings are wholly statutory
and jurisdiction over the subject matter of an election
contest petition must be found in the Pennsylvania
Election Code by reference.”). Section 1711 of the
Election Code, 25 P.S. §3291, identifies five “classes of
nominations at primaries and elections of public officers
which may be contested in this Commonwealth.” 25 P.S.
§3291. Relevant here are Class II nominations and
elections of electors of President and Vice-President of the
United States. Id. Significantly, a Class II contest must
be commenced by the filing of a petition “within twenty
days after the day of the primary or election, as the case
may be.” Section 1756 of the Election Code, 25 P.S.
§3456. Thus, the deadline for filing a Class II contest of
the November 3, 2020, General Election was November
23, 2020. Plaintiffs filed their complaint on December 4,
2020, which was 11 days after the statutory deadline. This
Court lacks jurisdiction over the contest and, thus,
Petitioners cannot prevail on the merits.2
***
10
2
The Election Code contains additional specific
procedures and requirements for contesting a Class II
election. Relevant here, Section 1731 of the Election Code
provides that Class II contests “shall be tried and
determined by the court, upon petition of at least one
hundred electors as hereinafter provided.” 25 P.S. §3351
(emphasis added). The petition must be verified by the
affidavit of at least five of the petitioners. Section 1757 of
the Election Code, 25 P.S. §3457. A bond must be filed in
every class of election contest, signed by at least five of
the petitioners. Section 1759 of the Election Code, 25 P.S.
§3459. Petitioners have satisfied none of these
requirements.
Metcalfe, slip op. at 2-3 (footnote omitted).7
Likewise, in the instant matter, Petitioner utterly failed to avail himself
of the foregoing appropriate statutory remedy thereby precluding the grant of the
requested declaratory relief.8 See, e.g., Commonwealth v. Dorler, 588 A.2d 525, 528
7
See Pa. R.A.P. 126(c) (“A reported single-judge opinion in an election law matter filed
after October 1, 2013, may be cited as binding precedent only in an election law matter. All other
single-judge opinions, even if reported, shall be cited only for persuasive value and not as binding
precedent.”).
8
In a similar circumstance, the Pennsylvania Supreme Court observed:
[T]he questions involved are of a character properly belonging to an
election contest, and, had appellants diligently pursued that remedy
instead of the present appeals, they probably would have had ample
time, between the date of the certification of the nominations, in
May, 1924, and the date of the printing of the ballots for the
November election, to obtain any relief to which they might be
entitled; whereas the time remaining after the present appeals came
before us for decision was so short that, even had we returned the
record to the court below to pass upon the evidence offered, it would
have been physically impossible to have determined the matter in
time for the printing of the ballots, and this in itself would warrant
us in dismissing the appeal.
In re Twenty-First Senatorial District Nomination, 126 A. 566, 568 (Pa. 1924) (citations omitted).
11
(Pa. Super. 1991) (“A method to seek review of the instant claim before it became
academic existed, and appellants did not avail themselves of it. Under these
circumstances, we find the instant appeal to be moot and decline to address the issues
belatedly raised herein.”) (citations omitted).
Accordingly, the Application to Dismiss is granted, the Amended
Petition is dismissed as moot, and the POs are overruled as moot.
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew Ioannidis, :
:
Petitioner :
:
v. : No. 635 M.D. 2020
:
Tom Wolf, in his official capacity :
as Governor of the Commonwealth of :
Pennsylvania and Veronica :
Degraffenreid, in her official capacity :
as Acting Secretary of the :
Commonwealth of Pennsylvania, :
:
Respondents :
ORDER
AND NOW, this 8th day of July, 2021, Respondents’ Application for
Summary Relief in the Form of a Motion to Dismiss Amended Petition for Review
as Moot is GRANTED; Petitioner’s Amended Petition for Review in the Nature of
a Petition and Complaint in Equity is DISMISSED as moot; and Respondents’
Preliminary Objections to Amended Petition for Review are OVERRULED as moot.
__________________________________
MICHAEL H. WOJCIK, Judge