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Gordon v. Philadelphia County Democratic Executive Committee

Superior Court of Pennsylvania

November 7, 2013

TRACY L. GORDON AND NAN LEE JOHNSON, ON THEIR OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED,
v.
THE PHILADELPHIA COUNTY DEMOCRATIC EXECUTIVE COMMITTEE AND ITS CHAIRMAN, ROBERT A. BRADY, AND THE FORTIETH WARD (40B) DEMOCRATIC EXECUTIVE COMMITTEE AND ITS LEADER, ANNA M. BROWN, APPEAL OF: NAN LEE JOHNSON AND PHILADELPHIA DEMOCRATIC PROGRESSIVE CAUCUS

Appeal from the Orders entered September 13, 2012 and September 17, 2012, in the Court of Common Pleas of Philadelphia County, Civil Division at No(s): December Term, 2011, No. 285

BEFORE: BOWES, OTT, and STRASSBURGER, [*] JJ.

OPINION

STRASSBURGER, J.

Nan Lee Johnson (Johnson) appeals from the order of September 12, 2012 which held that Johnson lacked standing to pursue this action and entered judgment on behalf of the Philadelphia County Democratic Executive Committee (Executive Committee) and its Chairman, Robert A. Brady (Brady), and the Fortieth Ward (40B) Democratic Executive Committee (Ward 40B) and its Leader, Anna M. Brown (Brown), (collectively Appellees). Also, the Philadelphia Democratic Progressive Caucus (PDPC) appeals the order of September 17, 2012, which dismissed as moot its petition to intervene in the action as a party plaintiff. We affirm.

The trial court summarized the facts of the case as follows.

The December 6, 2011 complaint filed as a class action by plaintiffs Tracy L. Gordon (Gordon) and Johnson claims that the following rule of the Democratic Party of the City and County of Philadelphia (The Party) is invalid on its face and as applied to Gordon when she was removed from her elected position as a Member of the 40th Ward Committee:

If at any time in the opinion of the entire Ward Committee, a member is unfaithful to the Democratic party and the best interested [sic] of the party, refuses, fails or neglects to work in harmony with the Ward Committee, the Ward Committee shall be empowered to remove said person from its membership and declare a vacancy in the membership of the Ward Committee from said division.
Rule VII, Article 1, Section E (The Rule) of the City Committee Rules at [¶] 27 of the Complaint.
The governing body of The Party is the [Executive Committee] and [Brady]… is its elected Chairman. The Executive Committee consists of "Ward Committees corresponding to the neighborhood geographic divisions within the City of Philadelphia" and each "Ward Committee consists of up to two committee members for each division within the ward." Where a ward consists of more than 60 election divisions, it may be divided into units designated as "A" and "B." [Ward 40B] represents one such segment in Southwest Philadelphia. [Brown] is the elected leader of Ward 40B and is employed by Executive Committee as … Brady's secretary.
… Brown appointed Gordon to fill a Ward Committee position that became vacant between elections. On May 18, 2010, Gordon ran successfully in the primary election as a candidate to fill the position that she held as an appointee. Johnson voted for Gordon. At the first scheduled meeting of the Ward Committee on June 7, 2010, the committee members passed a resolution pursuant to The Rule quoted above that Gordon be removed from her office as a member. Gordon's appeals to the Executive Committee and to the State Democratic Party were unsuccessful.
Count I of the complaint sought Gordon's reinstatement to her elected office. Count II sought declaratory and injunctive relief against future and similar actions by [Appellees]. On July 5, 2012, [counsel for Gordon and Johnson] filed [(a) a] partial discontinuance as to … Gordon because [Appellees] reinstated her to the office to which she had been elected and (b) a praecipe to withdraw [the pending] motion for class certification. On July 26, counsel also filed a motion to intervene on behalf of PDPC.
On September 13, 2012, the court granted [Appellees'] motion for summary judgment on the ground that Johnson lacked standing to litigate the action; accordingly there remained no named plaintiff to prosecute the action and the action was disposed of. PDPC's motion to intervene as a party-plaintiff was dismissed as moot on September 17, 2012.

Trial Court Opinion, 1/16/2013, at 2-3 (some citations omitted).

On October 1, 2012, Johnson and PDPC filed a notice of appeal from both orders. Johnson and PDPC (collectively Appellants) and the trial court have complied with Pa.R.A.P. 1925.

Appellants state four questions for this Court's review.

1. Whether the Pennsylvania Supreme Court already effectively decided, in Bentman v. Seventh Ward Democratic Executive Committee, [218 A.2d 261 (Pa. 1966)], that the Philadelphia Democratic Party has no power or authority, through rule or otherwise, to nullify the results of state-conducted primary elections for ward committee members and that aggrieved candidates or voters can seek declaratory relief invalidating any rule that says otherwise.
2. Whether … Johnson's independent legal standing, as a voter, to pursue Count II of her Complaint – a claim for declaratory and injunctive relief against the Party [R]ule that allows the Party to override the will of the voters – was dissolved when, as a result of the reinstatement of the candidate she voted for in 2010, Count I was rendered moot.
3. Whether the challenged application of the [R]ule is capable of repetition and therefore evading review, because it is still in place and the Appellees have not disavowed their right to use the [R]ule ...

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