Thursday, August 24, 2006

PA Supreme Court Convolutes Law to Punish Nader

Presenting yet another reason why the Pennsylvania Supreme Court is generally held in low regard in legal circles, "Justice" Sandra Newman has rewritten the law to fit the decision she wanted to render. The Court issued an opinion upholding a Commonwealth Court order that Nader and others pay over $80,000 in court costs in connection with the successful challenge to the third-party nominating petitions in 2004.

At the outset, let us understand that it is unusual in the American system of jurisprudence for a litigant to be forced to bear the expenses of the winning side. This is known as the "American Rule" and it grew from the colonist's strong aversion to the British system (judicial and otherwise) which favored the strong, wealthy and powerful. From the start, American jurisprudence advocated a system under which access to the courts by the weak and poor would not be chilled by the prospects of having to pay the fees and expenses of the other side. Think about that a moment. We live in a capitalist society where access to the best legal representation is a matter of affordability. The poor generally have fewer choices than the wealthy and the better advocates are usually available only to the wealthy. Believe it or not, even a just cause can fail to prevail in our system largely because of the quality of the advocacy. (Can you say "OJ"?)

That bit 'o legal instruction out of the way, understand, then, that such costs can be assessed only pursuant to legal authority. There are a number of statutes which permit of "fee-shifting" to require the loser to pay (civil rights laws, consumer protection statutes, are examples). In the case of the Nader petitions, that statute is Section 977 of the Election Code, which states:
Objections to nomination petitions and papers:

nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objection thereto, and praying that the said petition or paper be set aside. A copy of said petition shall, within the said period, be served on the officer of board with whom said nomination petition or paper was filed. Upon the presentation of such a petition, the court shall make an order fixing a time for hearing . . .

If the court shall find that said
nomination petition or paper is defective. . . it shall be set aside. . . .

In case any
such petition is dismissed, the court shall make such order as to the payment of the costs of the proceedings, including witness fees, as it shall deem just. . . .
Typically, this Pennsylvania law is not terribly well-written (Pennsylvania has one of the fewest percentages of legislators trained in the law of the fifty states, and it shows). However, it is clear that the references to the "petition" which I have boldfaced are references to the objecting petition and the "nomination petition or paper" refers to the minor-party candidate's nominating petitions.

If that is correct, and I think it is clear that it is, then the legislative scheme provided for the dismissal, simpliciter, of a defective nominating petition. However, the statute provides that the objector could be ordered to pay the costs of the minor-party candidate who successfully defends against an objection.

This reading fits hand-in-glove with the tradition of the American Rule. Think about it, minor party candidates are generally the weaker outsiders, struggling against a system designed to make them irrelevant and against well-financed "major" parties. The objections are financed by whichever political party sees a danger in the upstart third party candidate. So it makes sense for the legislature to have decided that if the big, rich, powerful major political party tries to bully a minor candidate out of the race with an expensive challenge (which, even if unsuccessful, could leave the minor party's available funds too depleted to finance any kind of effective campaign), then the bully would have to pay the little guy back -- but not visa versa.

But, Justice Newman and her cohorts decided that, with the final reference to "such petition", the legislature was referring to BOTH nominating and objecting petitions. This despite the fact that nowhere else in 977 did the legislature refer to nominating and objecting petitions simultaneously. Justice Saylor's dissenting opinion neatly eliminates any pretense of logic to the majority opinion and demonstrates that their reasoning was not in the least reasonable:
The majority'’s holding, however, is apparently that the last of these encompasses not only objection petitions, but additionally serves as a generic reference also subsuming both nomination petitions and papers filed by candidates. I find such reading to be implausible for several reasons.
First, the two prior references back in the statute clearly could not serve such an enlarged function, since their context (discussing the service of objections and the requirement of a hearing triggered by the filing of objections) makes plain that they refer exclusively to objectors'’ petitions to set aside. I therefore have difficulty with the conclusion that a third and parallel reference was intended by the Legislature to serve a much more expansive purpose.
Second, nowhere else in the statute (and, at least to my knowledge, in the Election Code) did the General Assembly use the word "“petition"” to generically include both nomination petitions and papers, let alone nomination petitions, nomination papers, and objections to nomination petitions and papers. Indeed, the General Assembly was otherwise very careful in Section 977 to specify both nomination "petitions and papers"” in every proviso in which the candidates'’ filings are addressed.
Further, a broad, generic use of the word "“petition" to address three discrete forms of documents under the Election Code spanning both candidate and objector submissions is not only uncharacteristic, but also seems to me to be unnatural. Moreover, the more natural construction of the statute is consistent with the precept that the Election Code should be construed liberally, in favor of candidates' ballot access. See In re Nomination Petition of Driscoll, 577 Pa. 501, 507, 847 A.2d 44, 48 (2004).
Fourth, in delineating the consequences of the filing of defective nomination petitions and papers, Section 977 indicates that these documents should be "“set aside"” upon appropriate and meritorious challenge, whereas the assessment of costs is authorized by the statute only when a petition is "“dismissed.
The phraseology of "setting aside"” attaching to the treatment of nomination petitions and papers comports with their filing with the Secretary of the Commonwealth or county boards of elections as opposed to in courts of law, whereas, the use of the term "“dismissal"” in the cost-assessment provision more properly aligns with the disposition of documents submitted to the courts, here, objection petitions.
What we must always guard against in our judicial matters is not to let the identities of the parties, or our personal feelings about the parties, interfere with a fair and just reading of the law and application to the facts of the case. It is difficult here because there remain many open wounds from Nader's ego-run in 2004 (including in your correspondent's heart). Ralph Nader was a hero to me in the 1970s and today I find him every bit the irrelevant egotist that he was unfairly labeled by Spiro and Ford Motor Company back then.

Nevertheless, even someone as low as Nader deserves a just court and a fair hearing. Sandra Newman, whether because of faulty intellect or ethics, gave him neither.

(h/t to Dave Ralis for alerting me of the decision)

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