The O'Hare Ruling

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Petition for Initiative to :
Prevent the Sale and/or Lease of :
Gracedale Filed With Northampton :
County Elections Commission on :
January 18, 2011 :
: No. 269 C.D. 2011
Appeal of: Bernard V. O’Hare III : Submitted: March 18, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE PELLEGRINI Filed: April 1, 2011
Bernard V. O’Hare III (O’Hare) appeals from the order of the Court
of Common Pleas of Northampton County (trial court) denying his objection to the
Gracedale Ballot Initiative Petition because he did not meet his burden of proof
that the Gracedale Initiative Petition Committee (Committee) failed to obtain
signatures from 10% of the qualified voters in Northampton County in the last
election as required by Article XI Section 1103(C) of the Northampton County
Home Rule Charter. Finding no error in the trial court’s opinion, we affirm.
2
This case involves a dispute over the potential sale of the Gracedale
Nursing Home (Gracedale), which is currently owned and operated by
Northampton County (County). Over the past several years, Gracedale has
operated at a loss – specifically incurring losses of $4,743,799 in 2009 and
$2,875,297 in 2010 – with the County making operating transfers to Graceland
each year in order to make up the difference. Given Gracedale’s financial situation
as well as the County’s budgetary shortfalls, the Northampton County Council
(Council) began to consider the possible sale of Gracedale. On August 19, 2010,
Council passed Resolution 71-2010
1
(Resolution) directing County Executive John
Stoffa to pursue a sale of Gracedale to private entities.
1
County Council Resolution 71-2010 states:
WHEREAS, throughout the recent past, the amount
of County contribution required to operate
Gracedale has realized wide and varied fluctuations;
and
WHEREAS, current economic conditions and
budgetary constraints at the Federal, State and
County levels make the continued financial viability
of Gracedale precarious at best, particularly when
combined with changes in Federal legislation that
could affect Gracedale admissions and
reimbursements.
NOW, THEREFORE, BE IT RESOLVED by the
Northampton County Council that it respectfully
directs the Northampton County Executive to
prepare and publish requests for proposals which
would provide for the alternate ownership of
Gracedale through the sale or lease of Gracedale.
3
Northampton County’s Home Rule Charter provides for direct citizen
participation in County government through initiative and referendum.
Specifically, Article XI, Section 1101 states “the registered voters of the county
shall have the power by initiative to enact and repeal ordinances, by referendum to
suspend and repeal ordinances, and by recall to remove officials from office.”
Article XI, Section 1102 of the County’s Home Rule Charter states that any 12
registered voters can commence the initiative procedure by forming a petition
committee. In order to place an initiative or referendum on a ballot, such a petition
committee must obtain signatures “by registered voters of the County equal in
number to at least 10% of the number of voters registered for the last election held
in the county.” Article XI, Section 1103(c).
On October 18, 2010, in response to Resolution 71-2010, 12
registered voters within the County created the Committee and commenced a
petition drive to place the following proposed ordinance on the May 17, 2011
primary ballot: “The county nursing home, known as Gracedale, shall not be sold
and/or leased by the County of Northampton for a period of five years from the
date of the approval of this ordinance.” On January 18, 2011, the Committee
submitted 507 signature petitions to the Northampton County Election
Commission (Commission) purportedly containing the signatures of 23,391
registered voters. The Commission initially rejected the Committee’s petition on
January 25, 2011.
4
That same day,
2
County registered elector O’Hare and Council
Member Ronald Angle (together, Objectors) filed a joint petition contesting certain
signatures and petitions contained in the Committee’s submission, alleging they
violated the Election Code and should, therefore, be invalidated. Objectors argued
that after subtracting the invalid, unverified signatures and petitions, the
Committee failed to meet the 10% threshold required by Article XI, Section
1103(c) of the Home Rule Charter. The Commission later reviewed the petitions
again and on January 31, 2011, it reversed its prior declaration and certified the
Initiative for submission to Council for further action.
Before the trial court, Objectors presented the testimony of Dee
Rumsey (Ms. Rumsey), the Chief Registrar with the Northampton County
Registration Division. Ms. Rumsey testified that the Commission directed her
office to begin verifying the 23,391 total signatures to determine if they were valid.
By the end of the hearing, she had verified 19,963 signatures of registered voters
with 959 signatures yet unexamined. (Hearing Testimony (H.T.) at 132).
Objectors then called the circulators of the Petitions. Maryann
Schmoyer (Ms. Schmoyer) was one of the 12 original signatories to the Initiative
Petition who circulated 48 petitions. (H.T. at 71, 84). Ms. Schmoyer testified that
she went to fire halls, church socials, and senior and community centers to obtain
2
Objectors’ petition may appear to be premature because the Commission had not yet
certified the Committee’s submission. However, Objectors filed their objections preemptively in
order to comply with Section 977 of the Pennsylvania Election Code (Election Code), Act of
June 3, 1937, P.L. 1333, as amended, 25 P.S. §2937, which requires that contests to nominating
petitions must be filed within seven days after the last day for filing nominating petitions.
5
signatures. (H.T. at 88). She would explain why she was there and what the
purpose of the petition was, let people read the petition, ask them if their voter
registration was up to date and if they lived in the County. (H.T. at 84). She then
would put a petition at each table, of which she admitted there could be 10 to 15 at
a time. (H.T. at 84-85). Ms. Schmoyer testified that she would walk around the
room while the petitions were circulating, ask if anyone had any questions, and
watch carefully as each person signed the petition. (H.T. at 85-87). On cross-
examination Ms. Schmoyer denied circulating any petitions at bars or clubs, as
alleged in the objections. (H.T. at 87).
Jack Dalessandro (Mr. Dalessandro) testified that he circulated two or
three petitions at a time at a voting site in Washington Township on Election Day.
(H.T. at 112). According to Mr. Dalessandro, he had a card table and chair set up
and watched as each individual signed the petitions. (H.T. at 112). Mr.
Dalessandro testified that the petitions never left his possession. (H.T. at 113).
William G. Coker, Jr. (Mr. Coker) testified that he saw several
petitions lying unattended in bars and social clubs. (H.T. at 90-91). On cross-
examination, Mr. Coker admitted that he could not specifically identify which
petitions he allegedly saw unattended at these bars and clubs. (H.T. at 92).
Clayton Creamer (Mr. Creamer) testified that signatures numbered 1
through 25 on petition number 242, of which he was the circulator, all came from
one apartment complex. (H.T. at 129-130). Mr. Creamer admitted that the
individual voters did not fill in their own address – they filled in their apartment
6
number and Mr. Creamer’s wife actually wrote in the apartment complex’s address
for all 25 signatures. (H.T. at 129-130).
Circulator Ellen J. Weiss (Ms. Weiss) testified that while she was the
named circulator on a number of petitions, she was not the actual circulator on all
of these petitions; she handed them out to others to actually obtain the signatures.
(H.T. at 144). Ms. Weiss admitted that she did not personally circulate petition
number 33, 35, 38, 41, 42, 56, 60, 61, 106, 179, 180, 206, 221, 265, 266, 298, 299,
302, 494, or 507, and that she only partially circulated petition number 40. (H.T. at
147-48, 150). Ms. Weiss testified that she was never given any real direction as to
how to handle the petitions, and she did not know that what she was doing was
incorrect. (H.T. at 145, 148).
Similarly, Dana Paisley (Mr. Paisley) testified that while he signed
several petitions as the circulator, he gave some of the petitions to others to
actually obtain the signatures. (H.T. at 152). Mr. Paisley testified that of the 1,188
signatures on his petitions, he was the actual circulator for only 399 signatures.
(H.T. at 153). Mr. Paisley personally circulated petitions 44, 51, 90, 95, 401, and
430, but he did not personally circulate petitions 57, 63, 65, 71, 84, 98, 103, 104,
110, 361, 410, 461, 462, or 463. (H.T. at 153-56).
3
3
The parties agreed that because Gerry Green was a resident of Lehigh County, he was
not a valid circulator. (H.T. at 105). Mr. Green was responsible for petitions numbered 478 and
481, which contained 107 and 11 signatures respectively. (H.T. at 104). Similarly, the parties
agreed that because Timothy Rehrig was a resident of Carbon County, he was not a valid
circulator. (H.T. at 107). Mr. Rehrig was responsible for petition number 44 which contained 74
signatures, petition number 480 which contained 3 signatures, and petition number 482 which
contained 105 signatures. (H.T. at 105). The parties agreed that Betty Fenstermacher was not a
(Footnote continued on next page…)
7
Objectors then argued that the trial court should start with 19,963, the
total number of registered voters as found by the Registrar, and subtract the
following: the 300 signatures obtained by Mr. Green and Mr. Rehrig; the 1,439
signatures obtained by Ms. Schmoyer; the 301 signatures obtained by Mr.
Dalessandro; the 53 signatures obtained by Mr. Creamer; the 99 signatures
obtained by Ms. Fenstermacher; and all 2,269 signatures obtained by Ms. Weiss
and all 1,188 signatures obtained by Mr. Paisley because they admitted they did
not follow the requirements of the Election Code. According to Objectors,
subtracting all of these numbers from the starting point of 19,963 would put the
Committee at 14,314 signatures, well under the 10% threshold.
The Committee conceded that the 452 signatures obtained by Mr.
Green, Mr. Creamer, and Ms. Fenstermacher were invalid. However, the
Committee argued that the signatures should be counted on the petitions that Ms.
Weiss and Mr. Paisley personally circulated and that the entirety of their signatures
should not be discounted due to their failure to follow the rules. The Committee
also argued that Objectors failed to reconcile the signatures that they challenged
with Ms. Rumsey’s list of signatures in order to determine whether or not there
was any overlap.
(continued…)
registered voter in the County and, therefore, the signatures she obtained as a circulator were
invalid. (H.T. at 157). In addition, Objectors withdrew objection number 10 relating to Ms.
Guzman and objection number 7 relating to Wendy Haggerty. (H.T. at 157).
8
The trial court found that Objectors failed to meet their burden of
proving that the Committee did not meet the 10% registered voter threshold
established by the Home Rule Charter. To meet their burden, Objectors had to
prove that 3,761 signatures were invalid. Stated another way, the Initiative would
need to have 19,631 valid signatures in order to meet the 10% threshold. The trial
court found that the record only established that 2,469 individual signatures were
invalid because those individuals were not properly registered. It held that 19,963
signatures were verified by the Chief Registrar’s uncontested testimony, and the
959 signatures that she had not examined were deemed valid because Objectors did
not specifically challenge those signatures as required by Section 977 of the
Election Code, 25 P.S. §2937. Therefore, the trial court concluded that the
Committee’s Initiative was supported by 20,922 registered voters, more than
enough to meet the 10% threshold.
As to challenges to the Petition based on improper circulation of the
Petition, the trial court found Ms. Schmoyer and Mr. Dalessandro’s testimony to be
credible; they both fully complied with the requirements set forth in Section 909 of
the Election Code, 25 P.S. §2869, and the Petitions they circulated were valid..
The trial court found Mr. Coker’s testimony to be unreliable because it lacked
certainty. He was not able to specifically identify which petitions he saw
unattended; therefore, none of the petitions were found to be invalid because they
were “languishing in bars,” as alleged in the objections. (Trial Court Opinion at 8).
However, the trial court struck all of the signatures contained on
petitions circulated by Mr. Green, Mr. Rehrig and Ms. Fenstermacher because
9
these three circulators were not residents or registered voters of Northampton
County. These circulators obtained 117, 181, and 95 signatures respectively,
which added up to 393 invalid signatures. The trial court also found that Objectors
met their burden with respect to signatures 1 through 25 on petition number 242
because the petition circulator, Mr. Creamer, admitted that his wife filled out part
of the address requirement instead of the voters themselves. The trial court
rejected Objectors’ argument that all of the signatures collected by Ms. Weiss and
Mr. Paisley should be invalidated because they did not personally circulate some of
their own petitions. Instead, the trial court struck only the signatures to which the
circulators were unable to demonstrate full compliance with Sections 908 and 909
of the Election Code, 25 P.S. §2868 and 2869, which totaled 2,304 signatures.
Given these determinations, the trial court found that Objectors
established that 2,722 signatures
4
had to be stricken because the circulators could
not establish full compliance with Sections 908 and 909 of the Election Code.
However, by subtracting 2,722 from the total number of signatures submitted,
there remained 20,669 valid signatures
5
– again, well above the threshold of 19,631
verified signatures.
While if you added the list of unregistered signatures and lists of
improper circulation, that number would be sufficient to remove the referendum
4
The trial court’s equation would appear to be as follows: 393 + 25 + 2,304 = 2,722
invalid signatures.
5
The trial court’s equation here is as follows: 23,391 – 2,722 = 20,669 verified
signatures.
10
from the ballot, the trial court noted that Objectors made no effort to reconcile the
individual invalid signatures derived from the Registrar’s review with the petitions
found invalid by the court. According to the trial court, it could not simply add the
two totals together in order to determine a total number of invalid signatures, as
suggested by Objectors, because there was no evidence to prove that the signatures
found invalid by the Registrar were not also contained in the list of signatures
found invalid by the court. The trial court noted that Objectors’ argument ignored
the presumption of validity in favor of every signature, a presumption which could
only be overcome by competent, extrinsic evidence. See In re Williams, 625 A.2d
1279, 1281 (Pa. Cmwlth. 1993) (citing Smith v. Brown, 590 A.2d 816 (Pa. Cmwlth.
1991)); In re Minotti, 574 A.2d 119, 123 (Pa. Cmwlth. 1990). Objectors had the
burden of proving each signature was invalid, and they failed to even attempt to
prove there was no duplication. This appeal followed.
6
I.
O’Hare’s main argument on appeal is that the trial court erred by
concluding there was a duplication of efforts between the Registrar and the
Objectors and by failing to add together the total number of invalid signatures
established by the Registrar and the trial court. However, the trial court did not
6
When reviewing the order of a trial court concerning the validity of challenges to an
election petition, our standard of review is whether there was an abuse of discretion or an error of
law, and whether the findings of fact are supported by substantial evidence. In re Flaherty, 564
Pa. 671, 678, 770 A.2d 327, 331 (2001). We also note that the Election Code must be liberally
construed, and the party alleging defects in an election petition bears the burden of proving that
the petition is invalid. Id.
11
specifically find that there was any duplication; it merely stated that the possibility
existed and that “[t]o what extent there is duplication, one will never know.” (Trial
Court Opinion at 16). We agree with the trial court that we cannot possibly know
if some or even all of the invalid signatures were contained in both the Registrar’s
list and the list found invalid by the trial court’s examination of the petitions
because Objectors made absolutely no attempt to reconcile these figures. They
failed to conduct a page and line review of the submitted petitions despite the fact
that they presented the testimony of Ms. Rumsey, the Chief Registrar and the one
person with the requisite knowledge to conduct such a review.
What happens quite frequently in election cases is that a signature can
potentially be invalidated for numerous reasons – for example, the address the
voter provided on the petition did not match his voter registration card and the
circulator was not present when the voter actually signed the petition; or the voter
did not provide a date or street address and the circulator was not a resident of the
county. Absent a page and line examination of all of the invalidated signatures, it
is impossible to know whether or not there was any overlap. Given this fact and
the presumption under election law that a signature is valid, the trial court correctly
determined that it could not simply add the two figures together to determine a
total number of invalidated signatures.
II.
Mr. O’Hare also argues on appeal that the trial court erred in
validating the signatures collected by Ms. Schmoyer because her actions in
12
circulating 10 to 15 petitions at a time proved that she could not make the five-
point determination regarding each signatory to her election petitions as required
by Section 909 of the Election Code. We disagree.
Section 909 of the Election Code provides, in pertinent part, as
follows:
Each sheet shall have appended thereto the
affidavit of the circulator of each sheet,
setting forth--(a) that he or she is a qualified
elector duly registered and enrolled as a
member of the designated party of the State,
or of the political district, as the case may
be, referred to in said petition . . . ; (b) his
residence . . . ; (c) that the signers thereto
signed with full knowledge of the contents
of the petition; (d) that their respective
residences are correctly stated therein; (e)
that they all reside in the county named in
the affidavit; (f) that each signed on the date
set opposite his name; and (g) that, to the
best of affiant's knowledge and belief, the
signers are qualified electors and duly
registered and enrolled members of the
designated party of the State, or of the
political district, as the case may be.
25 P.S. §2869. The Supreme Court of Pennsylvania interpreted this section of the
Election Code in In re Flaherty, 564 Pa. 671, 770 A.2d 327 (2001), stating the
following:
The language in Section 909, therefore,
unambiguously requires that the circulator
13
affirming the petition be aware of five
criteria about each individual signer: (1) the
signer signed the petition with full
knowledge of its contents; (2) the signer’s
address is correct; (3) the signer resides in
the county in the affidavit; (4) the signer
signed the petition on the date set forth; and
(5) to the best of the circulator’s knowledge
and belief, the signer was a qualified elector
and a member of the party claimed on the
petition. In order to know this information,
it seems clear that the circulator needs to be
present when each signer agrees to sign the
petition.
564 Pa. at 686, 770 A.2d at 336. Ms. Schmoyer testified that when she circulated
her petitions, she always addressed the crowd, explained who she was, why she
was there, what the petition contained, and asked if anyone had any questions. She
also testified that she specifically asked each signatory if their voter registration
was up to date and whether they resided in the County. Ms. Schmoyer testified
that she walked around the fire hall or gathering place and watched as each person
signed the petition. This testimony, which the trial court found to be credible,
amounts to substantial evidence to support the trial court’s decision that Ms.
Schmoyer met the five criteria required by Section 909 of the Election Code. In
addition, her credible testimony was that she was physically present when each
person agreed to sign the petition, as required by In re Flaherty.
III.
Finally, Mr. O’Hare argues that the trial court should have invalidated
all of the signatures collected by Ms. Weiss and Mr. Paisley because they admitted
14
they did not personally circulate some of the petitions to which they attested they
were the circulators. However, the trial court found the testimony of Ms. Weiss
and Mr. Paisley to be credible. Both witnesses testified to which petitions they
personally circulated, and Objectors failed to present any evidence that these
circulators did not meet the five criteria outlined above in Section 909 of the
Election Code with respect to the petitions they personally circulated. Given the
presumption of validity and Objectors’ failure to present any evidence to rebut this
presumption, the trial court correctly determined that Objectors failed to meet their
burden regarding the validity of the petitions personally circulated by Ms. Weiss
and Mr. Paisley.
Because Objectors failed to meet their burden of proving that at least
3,761 signatures were invalid, the decision of the trial court is affirmed.
__________________________
DAN PELLEGRINI, JUDGE
Judges Cohn Jubelirer and Simpson did participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Petition for Initiative to :
Prevent the Sale and/or Lease of :
Gracedale Filed With Northampton :
County Elections Commission on :
January 18, 2011 :
:
Appeal of: Bernard V. O’Hare III : No. 269 C.D. 2011
O R D E R
AND NOW, this 1
st
day of April, 2011, the order of the Court of
Common Pleas of Northampton County, dated February 9, 2011, and docketed at
No. C-48-CV-2011-75, is hereby affirmed.
__________________________
DAN PELLEGRINI, JUDGE