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In re Nominating Petition of May

April 1, 2009

IN RE: NOMINATING PETITION OF BARBARA MAY FOR JUDGE OF THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, PENNSYLVANIA
OBJECTION OF: BRIAN MILES



Per curiam.

ORDER

NOW, May 5, 2009, it is ordered that the above-captioned Memorandum Opinion, filed April 1, 2009, shall be designated OPINION and shall be REPORTED.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

OPINION

JUDGE COHN JUBELIRER

Brian Miles (Objector) has filed a Petition to Set Aside the Nomination Petition of Barbara May (Petition to Set Aside), seeking to prevent Barbara May's name from appearing on the primary ballot as a Republican candidate for Judge of the Court of Common Pleas of Montgomery County, Pennsylvania. The Petition to Set Aside alleges that May is disqualified from appearing on the primary ballot because, at the time she filed her Nomination Petition, she held the position of committeewoman in an Election District known as Franconia Northwest in Montgomery County, Pennsylvania. Objector alleges that holding such a position is in violation of Canon 7(A)(1) of the Code of Judicial Conduct, which provides that a candidate for election to a judicial office should not be an officer in a political organization.*fn1

In compliance with our Scheduling and Case Management Order dated March 17, 2009, the parties filed a timely Stipulation with this Court on March 24, 2009. A hearing was held before the undersigned on March 25, 2009. Neither Objector nor May presented any witnesses at the hearing. Counsel for the parties stipulated that May resigned as a committeewoman as of the date of the hearing, March 25, 2009.

In determining whether a candidate is precluded from being placed on the primary election ballot, we turn first to the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600 -- 3591, which sets out the statutory requirements that a candidate must meet in order to be placed on a primary election ballot. Section 907 of the Election Code, 25 P.S. § 2867, provides that nomination petitions must be filed by a candidate in a "form prescribed by the Secretary of the Commonwealth, [and] signed by duly registered and enrolled members of such party who are qualified electors of the State or of the political district, as the case may be, within which the nomination is to be made or election is to be held." A nomination petition must have a circulator's affidavit appended thereto, Section 909 of the Election Code, 25 P.S. § 2869, and each candidate for office must file an affidavit with her nomination petition. Section 910 of the Election Code, 25 P.S. § 2870. Finally, in addition to the requirements set out in the Election Code, Section 1104(b) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1104(b), also requires a candidate to timely file a statement of financial interests and to append the statement to the nomination petition in order to be placed on the primary ballot. We read the requirements relating to nomination petitions in both statutes, the Election Code and the Ethics Act, "in pari materia, as they relate to the same subject matter." In re Nomination Petition of Paulmier, 594 Pa. 433, 442, 937 A.2d 364, 369 (2007). Thus, a candidate is barred from remaining on the ballot if a candidate violates Section 1104 of the Ethics Act or the Election Code. Id. at 445, 937 A.2d at 371; In re Nomination Petition of Shimkus, 946 A.2d 139, 153-54 (Pa. Cmwlth. 2008).

Here, Objector does not allege that May failed to meet the applicable statutory requirements in the Election Code or the Ethics Act for being placed on the primary election ballot for common pleas judge. Rather, Objector contends that May is ineligible to remain on the ballot because she violated Canon 7(A)(1) of the Code of Judicial Conduct, which provides:

Canon 7. Judges should refrain from political activity inappropriate to their judicial office

A. Political conduct in general.

(1) A judge or a candidate for election to judicial office should not:

(a) act as a leader or hold any office in a political organization.

Objector argues that, notwithstanding May's resignation, May was a committeewoman and acted in that capacity at the time she filed and circulated her Nomination Petition. As such, Objector contends that May violated Canon 7(A)(1) of the Code of Judicial Conduct because she held an office in a political organization, and such a defect is fatal to her remaining on the primary ballot. Objector argues that this Court must create a remedy for May's violation of Canon 7(A)(1), just as the courts have done when candidates have violated the Ethics Act ...


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