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It’s not just the relative lack of written and/or citable opinions that Pennsylvania election law practitioners tend to bemoan when faced with a candidacy challenge based on alleged financial statement disclosure irregularities. What really leads to bewilderment in that litigation area is the pattern of seemingly inconsistent results – even in the cases that do generate precedential decisions. Nobody appears more cognizant of the problem than Luzerne County Senior Judge Patrick J. Toole Jr., who is presiding over the challenge to U.S. Rep. Bob Brady’s mayoral bid. Toole was brought in to preside over the matter to avoid the appearance of impropriety; Brady, as longtime head of the city’s Democratic Party, has links to a large number of Philadelphia’s sitting judges. The legal challenge to Brady’s candidacy is being underwritten by mayoral race opponent Tom Knox, the self-made millionaire and former city deputy mayor during the administration of now-Gov. Edward G. Rendell. At the heart of the dispute is whether Brady’s omission on financial disclosure forms of his alleged ties to city and carpenters’ union pension funds is enough to warrant kicking him off the ballot. During Tuesday’s hearing in the matter, Toole repeatedly asked the candidates’ lawyers for case citations that would support their various arguments. At one point, when a Brady lawyer reminded Toole that an opinion in a recent and key election law case mentioned moments earlier was not published, Toole quipped that a nonprecedential opinion is “always better than nothing.” Included below is a look at recent candidate financial disclosure cases – many of them unpublished – Toole may very well review in weighing his decision in the Brady case: In 2003, South Philadelphia native Vernon Anastasio was seeking to unseat his local member of City Council, Frank DiCicco. Like candidates for any state or local office across the commonwealth, Anastasio was required to file a financial disclosure statement pursuant to the Public Official and Employee Ethics Act, which is found at Section 1101 of Pennsylvania’s Public Officers Code. On “Block 10″ of the statement – under which the candidate lists any direct or indirect sources of income of $1,300 or more – Anastasio answered “none.” It later emerged that Anastasio did generate income at that level. A unanimous three-judge Commonwealth Court panel ordered Anastasio’s name struck from the ballot. In her April 2003 published opinion on behalf of the court, Judge Rochelle S. Friedman wrote that Anastasio had “ignore[d] the fact that the [Ethics] Act pertains to ethics and is to be liberally construed to promote complete financial disclosure.” In a May 2003 per curiam, the state Supreme Court affirmed 4-3. The justices initially indicated that they would file opinions in the matter, but none were forthcoming. State Rep. Kerry Benninghoff, a Republican from central Pennsylvania, was up for re-election in 2004. Block 10 of Benninghoff’s 2004 statement failed to disclose that he received a direct source of income from the state as a member of the General Assembly, and an objector challenged his candidacy on those grounds. In a published opinion dated March 2004, a 2-1 Commonwealth Court panel concluded that Benninghoff’s omission was fatal to his re-election bid. But the high court unanimously decided to reverse. Justice Max Baer wrote in his June 2004 majority opinion that because Benninghoff had noted in other blocks of his statement that he was employed as a state legislator, he had “substantially complied” with the requirements of the Ethics Act, as his salary was a matter of public record. Benninghoff was allowed to amend his statement and stay in the race. Philadelphia City Controller Alan Butkovitz’s 2005 fight for his current spot prompted financial disclosure statement-related challenges to two opponents’ candidacies. Butkovitz accused one opponent, John Braxton, of failing to disclose on his statement the sources of income on rental properties he owned, as well as the names and addresses of the creditors holding mortgages on those rental properties. In a nonprecedential memorandum filed in April 2005, a two-judge majority of the Commonwealth Court declined to kick Braxton off the ballot, though they did agree that Braxton needed to amend his statement of financial interests. Friedman, the dissenting member of that panel, argued that Braxton’s omissions amounted to “a fatal defect precluding his appearance on the ballot.” The justices ultimately reversed the Commonwealth Court majority in a May 2005 per curiam that did not indicate any dissenters to the holding. The paragraph-long order, which cited to the court’s holding in the Benninghoff case, directed that Braxton’s name be struck from the ballot. Paris Frazier was the second Butkovitz opponent to have his 2005 candidacy challenged on financial statement irregularity grounds. Frazier was called to task for allegedly failing to indicate the existence of a city of Philadelphia pension on the statement he filed in conjunction with his controller’s bid. Frazier noted that the Ethics Act’s definition of “income” provides a specific exception for “governmentally mandated payments or benefits.” Philadelphia’s employee pension system is provided for by state law. In an unpublished memorandum filed in September 2005, Commonwealth Court Senior Judge James J. Flaherty concluded that city employee’s pension income does not amount to a governmentally mandated payment for the purposes of the act – a fact that Knox’s lawyers were quick to point out both in court papers and during Tuesday’s hearing. Frazier was permitted to amend his statement. Regrettably for the Brady case’s participants, the Pennsylvania Supreme Court never got the chance to review Flaherty’s holding in the Frazier matter – Frazier’s candidacy was soon set aside due to nomination petition signature problems. In the spring of 2005, an opponent of then-Philadelphia Traffic Court candidate Albert Littlepage challenged Littlepage’s candidacy on the grounds that Littlepage had incorrectly indicated in his financial statement that he had no creditors and no direct or indirect sources of income. In an unreported April 2005 decision, then-Commonwealth Court President Judge James Gardner Colins concluded that Littlepage’s error was fatal to his candidacy and that he should not be allowed to amend his statement. In an opinion filed the following month, the justices unanimously affirmed Colins. In his majority opinion in the Littlepage matter, Baer cited to the high court’s decisions in both the Anastasio and Braxton cases. Last year, state Rep. Babette Josephs, the veteran Center City politician, sought re-election to the seat she has held since 1984. Josephs’ candidacy was challenged on the grounds that although her financial statement indicated that she derived income from “rentals, investments including equities and businesses,” Josephs did not list the names or addresses of any of those sources. In a nonprecedential decision filed in March 2006, Friedman – who alone presided over the intermediate appellate phase of the Josephs challenge – ruled in favor of Josephs, finding that during a hearing in the matter, Josephs’ objector’s attorney had neither asked that Josephs’ financial statements be marked as exhibits nor moved that they be admitted as evidence. In a 4-3 ruling, a majority of the state Supreme Court affirmed Friedman’s holding in a one-line per curiam order. But in a six-page dissenting statement, Baer argued that Friedman should have addressed the merits of the challenge rather than dismissing it on procedural grounds. Baer noted that the financial statements had been attached as exhibits to pleadings filed by both Josephs and her challenger, and that Josephs’ attorney had stipulated as to their authenticity during the hearing before Friedman. Another important election law case from last year stemmed from a northeastern Pennsylvania mayor’s bid for his local district’s state House of Representatives seat. Dallas Borough Mayor Timothy Carroll’s candidacy was challenged on the grounds that Carroll had failed to indicate in his financial disclosure statement his position on the board of a local municipal authority, as well as his presidency of a philanthropy-minded nonprofit bearing Carroll’s name. In a March 2006 nonprecedential memorandum, Commonwealth Court Senior Judge James R. Kelley ordered Carroll’s candidacy set aside. He cited to the appellate courts’ holdings in the Anastasio case. But in a 5-2 ruling filed that May, a majority of the high court suggested that the Ethics Act does not require Pennsylvania’s candidates to disclose in their financial statements public or nonprofit entity positions from which they do not financially profit. In a 10-page dissenting opinion, Baer argued that Carroll’s failure to disclose his position with the municipal authority amounted to a violation of “the letter and spirit of the [Ethics] Act.”

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