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The city of Philadelphia’s ordinance limiting campaign contributions is unconstitutional, Philadelphia Common Pleas Court Judge Allan L. Tereshko has ruled. Tereshko said the city does not have the power to create a campaign finance law because the state election code pre-empts any city ordinance. Tereshko ruled in favor of defendant and labor leader John Dougherty and U.S. Rep. Chaka Fattah, D-Pa., as intervenor, in their counterclaim that the city’s ordinance regulating contributions was pre-empted by the commonwealth’s election code. The ruling stems from a case, Nutter v. Dougherty, originally brought by mayoral candidate Michael A. Nutter in an effort to get potential mayoral candidates to comply with the contribution limits of $2,500 per individual and $10,000 per business or political action committee. Nutter has since withdrawn the suit, but Tereshko said Dougherty still has a right to have his counterclaim heard. The judge said the Pennsylvania General Assembly enacted a comprehensive legislative scheme under the state election code, which regulates campaign contributions. “The Pennsylvania Legislature did not enact legislation delegating to municipalities the ability to enact its own legislation regulating political campaign contributions,” Tereshko said. “The Philadelphia Campaign Finance Ordinance limits political campaign contributions and is therefore an enlargement of power granted to it by the Pennsylvania Legislature and directly contradictory to a power retained by the Pennsylvania Legislature.” The Committee of Seventy brought, and has since withdrawn, an identical suit, Schimmel v. Dougherty, against potential candidates that was heard before Common Pleas Judge Gary S. Glazer. Glazer had denied Dougherty’s same counterclaim in that suit in regard to the pre-emption issue. Dougherty’s attorney, George Bochetto of Bochetto & Lentz, said Glazer only ruled on procedural issues, not substantive issues. He said Tereshko’s ruling “is the law” unless appealed. Bochetto said with more than 175 municipalities in Pennsylvania, it doesn’t make sense to give each the power to regulate their own campaign laws. Susan Burke of Burke Pyle represents Nutter and said the ruling “clearly creates a conflict between two judges on the same court.” She said she does plan to appeal, and said she believes the city has the power to regulate its municipal campaign finance laws. “We are going to continue our efforts to eradicate the pay-to-play culture in the city of Philadelphia,” she said. The Nutter and Schimmel cases have largely hinged on whether the state election code definition of candidate, in which anyone who raises money is considered a candidate, supersedes the “common sense” definition of candidate as someone who has declared candidacy or filed nomination papers. When first passed, the city ordinance didn’t define “candidate.” Nutter wanted the definition to be anyone who accepts contributions, while some of the defendants wanted the “common sense” definition. Tereshko had moved the case beyond the issue of a definition of “candidate” by ruling on the defendants’ constitutional argument and invited the parties to submit motions on the pleadings. Glazer, in Schimmel, came to the opposite conclusion as Tereshko and sustained the law department’s preliminary objections to the constitutionality argument, dismissing the defendants’ claim. Glazer also dismissed Dougherty’s counterclaim on the resign-to-run issue. The counterclaim served as a yet-unsuccessful effort to knock Nutter out of the 2007 mayoral race for allegedly failing to abide by the city’s resign-to-run rule in which a candidate has to resign from one office within a year of running for another. Bochetto said he plans to continue his pending appeal of the dismissal of that claim. He said the penalty for Nutter, if he is found to have violated the rule, should be a disqualification from running for the 2007 mayoral race. City Solicitor Romulo L. Diaz Jr. had written an opinion supporting a definition of “candidate” that requires someone to either declare candidacy or file papers. The city, however, entered as an intervenor in its duty to support city council’s ability to pass legislation. Diaz wasn’t immediately available for comment at the time of publication. (Copies of the 10-page opinion in Nutter v. Dougherty , PICS No. 06-1801, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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