             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Working Families Party,                :
Christopher M. Rabb,                   :
Douglas B. Buchholz, and               :
Kenneth G. Beiser,                     :
                   Petitioners         :
                                       :
             v.                        :             No. 435 M.D. 2016
                                       :             Argued: September 13, 2016
Commonwealth of Pennsylvania,          :
Pedro A. Cortes, in his Official       :
Capacity as Secretary of the           :
Commonwealth of Pennsylvania           :
and Jonathan M. Marks, in his Official :
Capacity as Commissioner, Bureau       :
of Commissions, Elections and          :
Legislation, Department of State,      :
Commonwealth of Pennsylvania,          :
                   Respondents         :


Before:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE P. KEVIN BROBSON, Judge (P)
                 HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION                                              FILED: September 30, 2016
BY PRESIDENT JUDGE LEAVITT

                 Pending before the Court are cross-applications for summary relief.
We grant respondents’ application in part and deny petitioners’ request for relief in
mandamus.          To the extent petitioners also seek a declaration that multiple
provisions of the Pennsylvania Election Code1 are unconstitutional, we direct the
Chief Clerk to list the cross-applications for summary relief for oral argument
before the Court sitting en banc in Harrisburg in December 2016.




1
    Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600 – 3591.
               Petitioners challenge the “anti-fusion” provisions of the Election
Code,2 which prohibit a candidate nominated by a political party from running for
the same office as a candidate of a political body. See Sections 102 and 801 of the
Election Code, 25 P.S. §§2602, 2831.3 Petitioners are the Working Families Party,
Christopher M. Rabb, Douglas B. Buchholz, and Kenneth G. Beiser.                                The
Democratic Party nominated petitioner Rabb (Candidate) at the April 2016 primary
as its candidate for Representative in the General Assembly for the 200th
Legislative District.       The Working Families Party attempted in July to file
nomination papers also nominating petitioner Rabb as its candidate for the same
office. The Department of State, by respondent Commissioner Marks, rejected
Candidate’s nomination papers as the Working Families Party candidate because
Candidate had deleted language in the statutory candidate’s affidavit regarding the
absence of any prior nomination and non-membership in a political party.
               Petitioners then filed the pending two-count petition for review
addressed to the Court’s original jurisdiction.                Count I seeks a declaratory
judgment that Pennsylvania’s anti-fusion ban is unconstitutional. Count II seeks a
writ of mandamus directing the Secretary of the Commonwealth to accept the
nomination papers proffered by the Working Families Party. The parties stipulated
to the facts and filed the pending cross-applications for summary relief.


2
  Petitioners cite as the anti-fusion provisions sections 634 (substituted nominations for special
elections); 910 (affidavits of candidates); 951 (nominations by political bodies); 976
(examination of nomination petitions, certificates and papers; return of rejected nomination
petitions, certificates and papers); 979 (substituted nominations by parties); 980 (substituted
nominations by political bodies); and 1406 (petition to establish identity by candidate nominated
under different names; culmination prohibited) of the Election Code, 25 P.S. §§ 2784, 2870,
2911, 2936, 2939, 2940, 3156, respectively.
3
  A “political body” is an independent body of electors or political group that is smaller than a
political party and did not receive sufficient votes in prior elections to be able to use the primary
process to choose its candidate. As a consequence, the nomination papers of a candidate of a
political body must meet higher signature requirements. 25 P.S. §2831.
                                                 2
            Mandamus is an extraordinary remedy used to compel official
performance of a ministerial act or a mandatory duty. Bronson v. Investigations
Division, Bureau of Special Services, Department of Corrections, 650 A.2d 1160
(Pa. Cmwlth. 1994). A petitioner seeking relief in mandamus must demonstrate a
clear legal right in the petitioner, a corresponding duty in the respondent, and the
absence of an adequate remedy at law. Id. at 1163 (citing County of Allegheny v.
Commonwealth, 490 A.2d 402 (Pa. 1985)). This Court has held that “the use of
mandamus to compel public officials to act in violation of a statutory duty is not
the proper procedure for testing the constitutionality of a statute.” Jamieson v.
Pennsylvania Board of Probation and Parole, 495 A.2d 623, 625-26 (Pa. Cmwlth.
1985).
            Petitioners recognize that Commissioner Marks initially rejected the
nomination papers because Candidate had altered the form of the statutory
candidate’s affidavit. They also acknowledge that Section 951 of the Election
Code requires as follows:

            There shall be appended to each nomination paper offered for
            filing an affidavit of each candidate nominated therein, stating
            … (5) that his name has not been presented as a candidate by
            nomination petitions for any public office to be voted for at the
            ensuing primary election, nor has he been nominated by any
            other nomination papers filed for any such office.

25 P.S. §2911(e)(5) (emphasis added). Petitioners acknowledge that Candidate
was nominated pursuant to nomination papers filed by the Democratic Party.
            Relief in the nature of mandamus is appropriate only when it is clear
that respondents owe a legal duty to petitioners and that they have failed to
perform that duty. Here, petitioners recognize that they did not offer nomination
papers that conform to the statutory requirements. Thus, Commissioner Marks
properly rejected the papers. Mandamus is not the proper procedure for testing the
                                         3
constitutionality of Section 951 of the Election Code. Jamieson, 495 A.2d at 625-
26.4
              Declaratory judgment is not similarly defined. Petitioners assert that
the various provisions of the Election Code that preclude their nomination of a
candidate who shares their position on issues of political importance just because a
political party previously nominated that person are unconstitutional. According to
petitioners, the Pennsylvania ban on multiple nominations of a single person
violates their constitutional rights as established by Article I, Sections 2,5 5,6 7,7
and 208 of the Pennsylvania Constitution and their right to equal protection
guaranteed by the Fourteenth Amendment to the United States Constitution. These
constitutional issues merit a more considered determination by this Court sitting en
banc.
              Accordingly, petitioners’ application for summary relief is denied, and
respondents’ cross-application for summary relief is granted as to Count II of the
petition for review; Count II (relating to mandamus) is dismissed. The Chief Clerk

4
  Because Candidate is on the ballot as the candidate of the Democratic Party, voters may choose
him in the general election in November. His name is on the ballots that local boards of election
have mailed to military and others who will vote while residing overseas.
5
  Article I, Section 2 states: “All power is inherent in the people, and all free governments are
founded on their authority and instituted for their peace, safety and happiness. For the
advancement of these ends they have at all times an inalienable and indefeasible right to alter,
reform or abolish their government in such manner as they may think proper.” Pa. Const. art. I,
§2.
6
  Article I, Section 5 declares that “[e]lections shall be free and equal; and no power, civil or
military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Pa.
Const. art. I, §5.
7
  Article I, Section 7 provides in relevant part that “[t]he free communication of thoughts and
opinions is one of the invaluable rights of man, and every citizen may freely speak, write and
print on any subject, being responsible for the abuse of that liberty.” Pa. Const. art. I, §7.
8
  Article I, Section 20 recognizes that “[t]he citizens have right in a peaceable manner to
assemble together for their common good, and to apply to those invested with the powers of
government for redress of grievances or other proper purposes, by petition, address or
remonstrance.” Pa. Const. art. I, §20.
                                               4
shall list the parties’ cross-applications for summary relief as they relate to Count I
(relating to declaratory judgment) for argument before the Court en banc in
December in Harrisburg.
                                    ______________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Working Families Party,                :
Christopher M. Rabb,                   :
Douglas B. Buchholz, and               :
Kenneth G. Beiser,                     :
                   Petitioners         :
                                       :
             v.                        :    No. 435 M.D. 2016
                                       :
Commonwealth of Pennsylvania,          :
Pedro A. Cortes, in his Official       :
Capacity as Secretary of the           :
Commonwealth of Pennsylvania           :
and Jonathan M. Marks, in his Official :
Capacity as Commissioner, Bureau       :
of Commissions, Elections and          :
Legislation, Department of State,      :
Commonwealth of Pennsylvania,          :
                   Respondents         :


                                    ORDER

            AND NOW, this 30th day of September, 2016, petitioners’ application
for summary relief is DENIED and respondents’ cross-application for summary
relief is GRANTED as to Count II of the petition for review. Count II (relating to
mandamus) is DISMISSED.
            The Chief Clerk shall list for argument the parties’ cross-applications
for summary relief as they relate to Count I (relating to declaratory judgment)
before the Court en banc on the December argument list in Harrisburg.

                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
