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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James D.
Petitioner
v.
Thomas Corbett, Governor of the
Commonwealth of Pennsylvania;
Linda Kelley, Attorney General of the
Commonwealth of Pennsylvania;
Carol Aichele, Pennsylvania Secretary
Of the Commonwealth,
Respondents
OPINION NOT REPORTED
MEMORANDUM OPINION '
PER CURIAM
No. 2,12 M.D. 2012
Submitted: May 14, 2012
FILED: May 25, 2012
Presently before the Court are respondents',preliniinary objections to the
petition for review filed by petitioner, James D. Schneller ,in the Court's original
jurisdiction. In the petition for review, petitioner seeks, inter alia, the following: an order
setting aside the nomination petitions of President Barak Obama and 'U.S.
Congressman Patrick Meehan; an orderforwrit of mandamus requiring respondents to
convene a hearing pursuant to Section 976 of the Pennsylvania Election Code;l and an
order in quo warranto as to PresidentObama and Congressman Meehan., In a
separate c;ount, petitioner seeks appellate review of what he characterizes as a deemed
denial ofa request to convene a hearing pursuant to Section 976.
This matter has its origins in another petition for review filed at 75 M.D.
2012. Therefore, a brief review of that matter will ,be helpful ,at the outset.
... - .. -_. .... -
._- .--- ---_ .. _- ...... __ .. _ .. _.. --.--.---.. ...- - ... _-----_ ......... _ ... -" .. ----.... .
On February 15, 2012, petitioner filed a "petition to set aside nomination
petition of [President] Barak Obama [D] and [U.S. Congressman] Patrick Meehan [R]",
lAct of June 3,1937, P.L 1333, as amended, 25 P.S. 2936 .
.. ;.
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and to test title, with petition to convene [25 P.S. 2936] committee to reject nomination
petitions." As in the current petition for review, petitioner alleged the existence of two
major political parties in the United States, the purpose of one of them being to
overthrow and control the United States and Pennsylvania governments by use of force,
violence, military measures and threats. Ways of overthrowing the governments, it was
alleged, involved the limitation of choices of candidates appearing on the ballot and the
limitation of enumerated constitutional rights. Petitioner alleged a number of actions by
"the current executive branch" said to be in derogation of its duties.
The gist of petitioner's petition for review was that President Obama was
not qualified to sit as President of the United States because (a) he was not a natural
born citizen, (b) he acquired citizenship in other countries, and/or (c) his father was not
a U.S. citizen. As to Congressman Meehan, petitioner alleged that the
Commonwealth's Attorney General investigated Mr. Meehan's nomination petitions in
2010 for allegedly forged Signatures and a false candidate's affidavit.
Petitioner averred that President Obama's and Congressman Meehan's
actions affronted him and caused deep anguish and insult, and instilled real fear by
undercutting America's religious growth, ethics, and morality.
Petitioner sought an order setting aside the nomination petitions of
President Obama and Congressman Meehan, a mandamus order requiring the' Attorney
General to convene a hearing under Section 976 of the Election Code, and an order in
quo warranto to determine their right to hold office. The petition for review further
sought review of the Secretary of the Commonwealth's "deemed denial" of a request for
a hearing under Section 976 of the Election Code.
Because petitioner's petition for review impermissibly commingled types of
actions, the Court permitted petitioner's objections to President Obama's and
Congressman Meehan's nomination petitions to go forward at 75 M.D. 2012, but
granted petitioner leave to file a separate action relating to the other causes of aCtion
set forth in the petition for review. See (Pa. Cmwlth. No. 75 M.D. 2010,filed February
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22, 2012). This was because challenges to nomination petitions statutory in nature
and are governed by the Election Code, In fe McElhatton, 729A.2d 163 (Pa. Cmwlth.
1999), and the Pennsylvania Rules of Civil Procedure do not apply to matters under the
Election Code.
As to the merits of petitioner's challenge to the nomination petitions of
President Obama and Congressman Meehan, the Court dismissed the objections on
the basis that petitioner, a registered Independent, lacked standing to bring a petition to
set aside the nomination petitions of persons of another. party. See In re Williams, 625
A.2d 1279 (Pa.Cmwlth. 1993); In re Pasquay, 525 A.2d 13 (Pa. Cmwlth. 1987).
Petitioner appealed to the Supreme Court. of Pennsylvania, but that appeal was
quashed forJailure to file a brief. See (Pa., No. 24 MAP 2012, filed March 23, 2012),
reconsideration denied, (Pa., No. 24 MAP 2012, filed April 26, 2012).
,Before.d ismissal,of petitioner's objections to the, nomination petitions of
President Obama and Congressman Meehan, petitioner filed this nearly identical
petition for review at 212 M.D. 2012. In addition to the allegations appearing in the
petition for review at 75 M.D. 2012, the current petition for review includes a
constitutional challenge to the Legislature's purported 2006 amendment to Section 910
of the .Election Code, 25 P.S.2870. Petitioner allege$ that the Legislature
impermissibly deleted the requirement that a candidate for president file a candidate's
affidavit.
Cognizant -of the similarities between the petitions for review at 75 M.D.
2012 and 212 M.D. 2012, the Court entered an order limiting the 212 M.D. 2012 action
to those.requestsfor relief not disposed of in the petition for review at 75.M.D. 2012.
The Court further directed respondents to file a response to the petition for, review within
ten days.
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----.-.. __.... _._---... --" .... " .. -._----._--
Respondents thereafter filed the preliminary objections sub judice,
demurring to the petition for review. First, as to Section 910 of the Election Code and
the candidate's affidavit, respondents contend that Article II of the United States
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Constitution sets forth the eligibility requirements for the office of the President and that
Section 910 has no bearing on those requirements. As to Section 976 of the Election
Code, respondents assert that petitioner fails to set forth any factual averments that
would entitle him to the requested relief if true.
Petitioner filed a response to respondents' preliminary objections and
included a "motion to amend to add challenge to reapportionment map." Petitioner
alleges that the Legislative Reapportionment Committee's 2012 redistricting map of
Pennsylvania violates the federal Voting Rights Act, 42 U.S.C. 1973-1973q, because
it failed to consider population shifts, impermissibly bifurcates counties, municipalities,
and wards, misapplies existing majority-minority voting districts, aVoids availability of a
stronger blacl<and/or Latino vote, constitutes political gerrymandering per se, and
violates the Equal Protection Clause. In an April 16, 2012 order, the Court denied
petitioner's request to amend the petition for review because a challenge to the
reapportionment act is unrelated to these proceedings. See (Pa. Cmwlth., No. 212 M.D.
2012, filed April 16, 2012).
Standards of Review
When ruling on preliminary objections in the nature of a demurrer, this
Court must accept as true all well-pleaded allegations of material facts as well as all
inferences reasonably deducible from such facts. Stilp v. Commonwealth, 910 A.2d 775
(Pa. Cmwlth. 2006). For preliminary objections in the nature of a demurrer to be
sustained, it must appear with certainty that the law will permit no recovery, and any
doubt must be resolved in favor. of the non-moving party. Id. In this context, the Court
'must consider whether petitioner has stated a cause of action Which, if proven, would
entitle him to the relief sought. Maute v. Frank, 670A.2d 737 (pa. Cmwlth. 1996). The
Court must regard all relevant and material facts, as well as documents and exhibits, in
petitioner's pleading as true, and sustain the objections only if those facts or
documentary attachments clearly and without a doubt could not support the requested
relief as a matter of law. See Diess v. Dep't of Transp., 935 A.2d 895 (Pa. Cmwlth.
2007).
4
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Discussion
CQuntl
As to Count lof petitioner's petition for review, which seeks an order to set
aside the petitions of PresidentObama and Congressman Meehan,the
Court previously disposed of these objections in its March 22, 2012 order at 75 M.D.
2012, and precluded their cOl)sideration here. See Order of February 15,2012.
. To the extent that. petitioner challenges the "constitutionality of the
Legislature's, purported amendment of Section 910 oUhe Election Code, 25P .S. 2870,
in 2006 to exempt presidential candidates from a requirement that they file candidate's
affidavits, see Pet. to Set Aside. Nomination Petition,' February 27, 2012, the challenge
is untenably premised as a m13tterofiegislative history ..
The Legislature did not amend Section 910 in 2006 to delete the
. requirem:ent that candidates .for office .. of . the -president file. 'a . affidavit,-as
petitioner alleges. A review of the 1937 statute and all amendments thereto, reveals
. that this proVision, "In the case of a candidate for nomination as President of the United
States, it shall not be necessary for such candidate to file the affidavit required in this
section to befileqby candidates, butthe post-:-office address. of such candidate shall be
stated in such ,nomination petition," has existed since initial enactment of the Election
Code. The 2006 amendments. to Section 91 Oaf the Election Code merely inserted
subsection 0) in the list of matters to be included on candidates' nomination petitions.
2
Furthermore, the Court is unable to discern any legal basis to impose
, . "
upon .. t,he Legislature a constitutionally dubious obligation to supplement the
qualifications for president.found inArticle Il of the' United States COnstitution .
. _ ........... __ ..........
Act of Febrl1ary 13, 1998 deleted the provision thr;ri: candidates for president are not requiredto
file an affidavit The Court reviewed the .Laws.of Pennsylvania, starting with the 1937Act..
This sentence has always been present in the legislation. The section. to Which petitioner refers
was aCtually deleted from section 630.1 of the Election Code, added by the Act of April 18,
1985, P.L5, 25 P.S. 2780.1.
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Challenges to the qualifications of a president or mem bers of Congress to
hold office as a general rule involve political questions that can be characterized as non-
justiciable in certain forums. Strunk v. New York Bd. of Elections, (N.Y. Supreme,
6500/11, filed April 11, 2012), 2012 WL 1205117 (N.Y.Supp.). The non-justiciability of a
political question derives, of course, from the separation of powers doctrine. Id. Under
that doctrine, Congress has the power to regulate federal elections. Buckley v. Va/eo,
424 U.S. 1, 13 (1976); cf. Ubetty Legal Found. v. Nat'l Democratic Patty of the USA,
Inc., 2012 WL 1252484 (W.O. Tenn. 2012); see also 3 U.S.C. 121. (setting forth the
procedures for presidential elections). Accordingly, in the context of the present case,
the Court's assumption of subject matter jurisdiction to determine the qualifications and
eligibility of Mr. Obamato be president would be inconsistent with settled principles. Cf.
Hollister v. Soetoro, 601 F.Supp. 2d 179 (D.D.C. 2009); Robinson v. Bowen, 567
F.Supp. 2d 1144 (N.C. Cal. 2008) (dismissing challenges to qualifications of presidential
candidates for lack of standing); Hollander v. McCain, 566 F.Supp. 2d 63 (D.N.H. 2008)
(same); Cohen v. Obama, No. 08-2150, 2008 WL 5191864 (D.D.C. 2008), affd, 2009
WL 2870668 (D.C. Cir. 2009) (same). 3
Count II and IV
Count II seeks to compel a committee to convene a hearing pursuant to
Section 976 of the Election Code, 25 P .S .. 2936, for the purpose of determining
whether President Obama's and Congressman -Meehan's nomination petitions should
3 In Count III, petitioner seeks _ an order declaring that President Obama and
Congressman Meehanareineligible to hold office for the reasons noted above. An action in
quo warranto is the exclusive remedy to test the right or title to office. Bd. of Revision of Taxes,
City of Phi/a. v ~ City ofPhila.,.601. Pa .. 104,4 A.3d 610 (2010); In re $tout, 521 Pa. 571, 559
A.2d 489 (1989). "A complaint in quo warranto is aimed at the righttb exercise the powers of
the office, which is a public injury, rather than the attack on the propriety of the actions
performed while in office, which would be a private injury." Bd. of Revision of Taxes, 601 Pa. at
133,4 A.3d at 627.
Although respondents have not filed preliminary objections specifically addreSSing Count
III of the petition for review, petitioner's claim must fail for the same reasons stated above: Mr.
Obama's and Mr. Meehan's qualifications to hold office are governed by federal law, this issue
is anon-justiCiable political question, and the inatter is not within this Court's sUbje'ct matter
jurisdiction. The Courtmayat anytime raise the issue of subject matter jurisdiction. Bor,ougl1 of
Jenkintown v.Hall,'930A.2d 618 (Pa. Cmwlth: 2007); AccordingIY,we-v,villdismissGountlll of
the petition for review as well. - -
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be refused. Respondents allege petitioner failed to set forth any factual allegations that
would entitle him to the requested relief if proven true.
A writ of mandamus is an extraordinary remedy which seeks to compel
official,performance of a ministerial actor mandatory duty. Bd. ofComm'rs of County of
Schuylkill ex rei. ,Gallagher v.Kanter, 26:A.3d 1245 (Pa. Cmwlth. 2011). A writ of
mandamus may be issued only where there is a clear right to legal relief in the plaintiff,
a corresponding duty in the defendant and alack of ,any other appropriate or adequate
remedy. Id.
In relevant part, Section 976 of the Election Code provides:
Provided further, That no nomination petition ... shall
be permitted to be filed, if the political party or political body
referred to therein shall be composed of a group of electors
,,'whose.purposes or aims; or one of whose purposes or aims,
i ~ th.e established, control, cpnduqt, seizure or overthrow of,
. the Government of the Commonwealth of Pennsylvania or
the United States of America by the use of force, Violence,
military measures orthreats of one or more of the foregOing.
The authority to reject such nomination petition .,. shall,
when filed with the Secretary of the Commonwealth, be
vested 'in a' committee composed of the Governor, the
Attorney General and the Secretaryof the Commonwealth,
and when filed with any county board,of elections shall be
vested in such board. 25 P.S. 2936.
The Court 'agrees with respondents' position for two reasons. First, a
reading of petitioner's petition for review reveals that petitioner takes issue with: the
President's deployment of the Armed Forces for reasons other than national security;
the national debt; the Federal Reserve's alleged control of the economy; the
Department of Education's alleged encouragement of mediocre student achievement
.,., .. candmoralbackwardnessi-thePresident'-sallegedfaiiuretopreserve,-protectanddefend
the U.S. Constitution; the President's alleged violation of the separation of powers
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doctrine (by appointing czars as his Cabinet members) and illegal appointments and
executive orders; a national health care system; and, a whole host of other matters.
Accepting petitioner's allegations as true, as the Court must for purposes
of preliminary objections in .the nature of a demurrer, the petition for review merely sets
forth petitioner's disagreement with the President's policies. There no allegations of
overt activity by a national party, President Obama or Congressman Meehan that would
indicate an attempt to overthrow the government. Petitioner's inclusion of Section 976's
statutory language does not transform his view of the country's direction into factual
averments supporting the proposition that a national party, the President or the
Congressman are in the process of overthrowing the state and federal government by
use of force, violence, military measures or threats.
Second, Section 976, above, is not a mandatory duty of respondents.
Petitioner has identified no language in Section 976 which requires the Governor, the
Attorney General and the Commonwealth Secretary to form a committee and convene a
hearing. It is only when the three individuals collectively determine that a nomination
petition should be reviewed for the enumerated reasons that the duty to convene a
hearing arises. 25 P.S. 2936. Because there is no mandatory duty to convene a
hearing under Section 976, petitioner cannot demonstrate a clear right to relief and
mandamus will not lie. Kanter, 26 A.3d 1245.
Concluding that petitioner cannot obtain relief, the Court will sustain the
the respondents' preliminary objections and dismiss this matter with prejudice.
, i""" .." ." . , .. , .. ,
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IN THE COMMONWEALTH COURT
James D. Schneller,
Petitioner
v.
Thomas Corbett, Governor of the
Commonwealth of Pennsylvania;
Linda Kelley, Attorney General of the
Commonwealth of Pennsylvania;
Carol Aichele, Pennsylvania Secretary
Of the Commonwealth,
Respondents
ORDER
PENNSYLVANIA
No. 212 M.D. 2012
NOW, May 25, 2012, upon consideration of the preliminary objections filed
on behalf of respondents and petitioner's response thereto, the preliminary objections to
Counts I, II, and IV of the petition for review are sustained. Further, Count III is
dismissed for lack of subject matter jurisdiction. Accordingly, this matter is dismissed
with prejudice.
Certified from the Record
9
MAY 2 5 2012