D. Mohn v. Bucks County Republican Committee ~ Appeal of: D. Mohn

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Mohn, Chad Wallace :

and Irene Silvius :

:

v. : No. 24 C.D. 2018

: Argued: December 12, 2019

Bucks County :

Republican Committee :

:

Appeal of: Daniel Mohn :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: March 6, 2020

Daniel Mohn appeals the order of the Bucks County Court of

Common Pleas (trial court)1 overruling his motion for summary judgment and

1

The Superior Court transferred the instant appeal to this Court, concluding that we

possess jurisdiction pursuant to Section 762(a)(4)(i)(C) of the Judicial Code, 42 Pa. C.S.

§762(a)(4)(i)(C). See Mohn v. Bucks County Republican Committee, 218 A.3d 927, 935 (Pa.

Super. 2019) (“These [appellate] issues involve election matters that ‘draw[] into question the

application, interpretation or enforcement of . . . statute[s] relating to elections, . . . or other

election procedures.’ 42 Pa. C.S. [] §762(a)(4)(i)(C). Consequently, the subject matter of this

appeal directly implicates the [Pennsylvania] Election Code[ (Election Code), Act of June 3,

1937, P.L. 1333, as amended, §§2600-3591,] and the Commonwealth Court’s precedents

applying the [Election] Code’s provisions.”). Nevertheless, we have been conferred with

appellate jurisdiction pursuant to Section 762(a)(5)(ii) of the Judicial Code, which states that this

“Court shall have exclusive jurisdiction of appeals from final orders of the courts of common

pleas in . . . [a]ll actions or proceedings otherwise involving the corporate affairs of any

corporation not-for-profit subject to Title 15 or the affairs of the members, . . . directors, officers,

. . . or agents thereof.” 42 Pa. C.S. §762(a)(5)(ii). See also Comment to Section 9112 of the

(Footnote continued on next page…)

granting the Bucks County Republican Committee’s (BCRC)2 cross-motion for

summary judgment. We affirm.

(continued…)

Pennsylvania Uniform Unincorporated Nonprofit Association Law (Nonprofit Association Law),

15 Pa. C.S. §9112 cmt. (“This chapter applies to all nonprofit associations, whether they be

classified as religious, public benefit or mutual benefit or whether they are classified as tax

exempt. Therefore, the chapter covers unincorporated philanthropic, educational, scientific,

social and literary clubs, unions, trade associations, [and] political organizations, such as political

parties . . . .”).

2

Section 807 of the Election Code states, in relevant part:

There may be in each county a county committee for each

political party within such county, the members of which shall be

elected at the spring primary, or appointed, as the rules of the

respective parties within the county may provide. The county

committee of each party may make such rules for the government

of the party in the county, not inconsistent with law or with the

State rules of the party, as it may deem expedient, and may also

revoke, alter or renew in any manner not inconsistent with law or

with such State rules, any present or future county rules of such

party.

25 P.S. §2837. Additionally, Section 812 of the Election Code, added by the Act of June 14,

1947, P.L. 610, 25 P.S. §2842, provides “that, [w]hen acting in the capacity of a political

committee, such duly elected or appointed members shall be subject to the control, direction and

supervision of the political committee of which they are members.” See also Mohn’s Amended

Motion for Preliminary Injunction, Exhibit I at 13, Rule 6.1 of the Rules and Bylaws of the

Republican Party of Pennsylvania (“Each County Republican Committee shall adopt rules and

bylaws, which shall not be inconsistent with the Rules of the State Party or law, to govern the

operation of the party within their respective county.”).

Pursuant to the foregoing, Rule I, Article 3 of the BCRC’s Rules provides, in pertinent

part:

Whenever it shall appear a person holding a Party Office . . . is

neglecting or refusing to attend to the duties of his . . . office . . . he

. . . shall be disqualified and his . . . membership or office shall be

(Footnote continued on next page…)

2

Mohn was elected as a Republican Committeeman in Yardley

Borough, Bucks County, in the May 20, 2014 General Primary Election and the

April 26, 2016 General Primary Election. On August 25, 2014, following his

(continued…)

declared vacant. No such disqualification shall occur nor such

membership be declared vacant until so determined by the

Executive Committee as hereinafter set forth.

***

The Executive Committee shall by majority vote determine

whether or not the Chairman . . . may declare a vacancy provided

however that before such action by the Chairman . . . the Party

Officer shall be given an opportunity for a full hearing before the

Executive Committee after due notice of the nature of the charges,

the time and place of the hearing, and his . . . entitlement generally

to the elements of due process in the conduct of such proceedings.

Reproduced Record (R.R.) at 36a-37a. In turn, Rule I, Article 2 defines “Party Office” as

including “Committeeman or Committeewoman with a duly constituted election district or

precinct.” Id. at 36a. See also Mohn’s Amended Motion for Preliminary Injunction, Exhibit I at

19, Rule 11.1 of the Rules and Bylaws of the Republican Party of Pennsylvania, which states, in

pertinent part:

Whenever it shall appear that any member of the State Party . . .

neglects or refuses to attend the duties of office . . . the State Party

Chairman shall appoint a committee of three (3) qualified

Republican electors to investigate such charges. The committee

shall notify the person so charged of the time and place of hearing,

and if upon investigation it finds such charges to be true and

correct, it shall so report in writing to the State Party Chairman[.]

In the case of a member of State Party, the State Party Chairman

shall declare the office vacant and notify the Chairman of the

County Committee in which the said member resides of the

vacancy.

3

initial election to that office, Mohn signed and dated the following BCRC

Executive Committee Resolution, which states, in relevant part:

BE IT RESOLVED AND IT IS HEREBY RESOLVED

BY THE EXECUTIVE COMMITTEE OF THE [BCRC]

THAT THE DUTIES OF THE INDIVIDUAL

COMMITTEEPEOPLE OF THE COUNTY BE SET

FORTH AS FOLLOWS:

***

► HELP ENDORSED REPUBLICANS RUNNING

FOR OFFICE IN ACCORDANCE WITH THE [BCRC]

BY-LAWS[;]

***

► COVER POLLS ON ELECTION DAYS,

DISTRIBUTE THE SAMPLE BALLOT[.]

R.R. at 260a.3

On May 18, 2016, the BCRC’s Ethics Committee Chairman informed

Mohn that the Ethics Committee had received notification of ethics violations

committed by Mohn during the April 26, 2016 General Primary Election, including

campaigning against the BCRC-endorsed candidates and distributing a non-

endorsed sample ballot, and that a June 2, 2016 hearing was scheduled before the

Ethics Committee “to make a recommendation on the matter to the Executive

3

Section 9112 of the Nonprofit Association Law defines “governing principles,” in

relevant part, as “[t]he agreements . . . in record form . . . that govern the purpose or operation of

a nonprofit association and the rights and obligations of its members[.]” 15 Pa. C.S. §9112. See

also 15 Pa. C.S. §9112 cmt. (“Governing principles are the equivalent of the articles of

incorporation, bylaws and agreements that govern the internal affairs of a nonprofit

association.”); Section 9125(b)(1) of the Nonprofit Association Law, 15 Pa. C.S. §9125(b)(1)

(“A member shall, consistent with the governing principles and the contractual obligation of

good faith and fair dealing . . . discharge duties under the governing principles to the nonprofit

association and the other members[.]”).

4

Committee for [its] consideration.” R.R. at 50a-52a; see also id. at 57a-58a, 69a-

74a, 82a-90a.4 On June 2, 2016, the BCRC’s Ethics Committee conducted a

hearing on the violations, at which Mohn refused to appear to contest the purported

violations or the Ethics Committee’s or the Executive Committee’s authority to

proceed thereon under the BCRC’s Rules. Id. at 16a, 94a-95a.5

On June 7, 2016, Mohn filed a Complaint in the trial court seeking

declaratory and injunctive relief pursuant to the Declaratory Judgments Act, 42

Pa. C.S. §§7531-7541, to prevent his removal as a Committeeman with the BCRC.

R.R. at 6a-29a.6 In Count I, Mohn sought a declaration that: (1) the Code of

Ethics in the BCRC’s Rule VII do not apply to committeepersons; (2) the Ethics

Committee does not have authority to conduct hearings or otherwise address

alleged violations of the Code of Ethics; (3) the BCRC may not remove and/or

disqualify and/or discipline and/or sanction elected committeepersons for

4

The alleged violations of his duties occurred during the course of his first term of office

following the 2014 General Primary Election. See BCRC Rule II, Article 2 (“Members of the

County Committee shall be elected by the Republican electors at the Primary Election in the

even numbered years, and serve for a term of two years, beginning the first Monday of June of

the year elected.”). R.R. at 37a (emphasis added). See also Section 9126(a)(1) of the Nonprofit

Association Law, 15 Pa. C.S. §9126(a)(1) (“A person becomes a member and may be suspended,

dismissed or expelled in accordance with the governing principles.”); Section 9130(b)(2) of the

Nonprofit Association Law, 15 Pa. C.S. §9130(b)(2) (“The governing principles may provide for

the . . . creation and authority of committees of the managers[.]”).

5

Specifically, “Mohn’s counsel emailed a letter to [the Ethics Committee Chairman] on

June 2, 2016, advising that Mohn would not attend the hearing because the Ethics Committee did

not have authority to conduct the hearing.” R.R. at 16a.

6

Initially, the Complaint was filed jointly by two other committeepersons who were also

the subject of complaints with the Executive Committee. However, these other

committeepersons filed a praecipe to discontinue their portion of the Complaint. See R.R. at

108a.

5

purported Code of Ethics violations; and (4) the BCRC may not remove,

disqualify, discipline, or otherwise impose sanctions for alleged violations of the

Code of Ethics. Id. at 26a. In Count III, Mohn sought an injunction to prevent an

Executive Committee meeting that was scheduled for June 9, 2016. Id. at 28a-29a.

On June 30, 2016, the BCRC sent Mohn a letter, which stated, in

relevant part:

As you’re aware, complaints were filed against you . . .

pertaining to your conduct as a committeeman. Upon the

recommendation of the Ethics Committee, the [BCRC]

Executive Committee will be holding a hearing

concerning those complaints pursuant to Rule I, Article 3

of our By-Laws[.]

The hearing will take place immediately following the

Executive Committee Meeting scheduled for 7:00 PM on

Thursday, August 11th[.]

The hearing will be conducted by receiving testimony

from witnesses as well as any documentary evidence.

All witnesses will be subject to cross-examination and a

stenographic record will be made of the proceedings.

After considering all relevant evidence presented, the

Executive Committee shall by majority vote determine

whether or not the Chairman may declare your

committeeman position vacant.

R.R. at 261a.

On August 11, 2016, the Executive Committee conducted a hearing

on the complaints pursuant to its authority conferred by Rule I, Article 3 of the

BCRC’s Rules. R.R. at 168a-319a. Again, neither Mohn nor his counsel appeared

to contest the complaints, or the authority of the Executive Committee to act on the

complaints or remove him as a committeeman, or to participate in the hearing in

any manner; however, a letter sent by Mohn’s counsel to the Executive Committee

6

regarding the hearing was read into the record and entered into evidence. Id. at

177a-183a, 244a.7 The Hearing Master also read into the record and entered into

evidence the BCRC’s Executive Committee Resolution outlining the duties of

committeemen and committeewomen that Mohn signed following his initial

election to that office in 2014. Id. at 184a-185a, 260a.

The Hearing Master explained to the Executive Committee members

that “if you determine that he has conducted himself and engaged in conduct

[regarding] whether he has neglected or refused to attend to his duties of office,

whether he’s violated those duties, you’ll make that determination in making a

determination whether or not he should be disqualified as a Republican

Committeeman.” R.R. at 211a. The Executive Committee heard testimony and

received evidence that Mohn was present at polling places outside his election

district during the April 26, 2016 General Primary Election handing out sample

ballots that were not those endorsed by the BCRC, and that he was the Treasurer

for a political action committee (PAC) that produced the unauthorized sample

ballots. See id. at 193a-195a, 199a-200a, 206a-207a, 217a-222a. As he was absent

from the hearing, Mohn did not present any evidence to impeach or rebut the

evidence presented supporting a determination that he violated the BCRC’s Rules.

In conclusion, the Executive Committee’s counsel explained:

[Mohn] formulated a PAC, he distributed fliers in

our neighborhoods. He sent these things out, and he

directly asked voters not – he directly asked voters not to

look at or follow the sample ballot.

7

In the letter, Mohn’s counsel explained that Mohn would not attend the Executive

Committee’s hearing “because the complaints against him do not allege any conduct, even if

true, that would constitute a basis to disqualify [him] from his position as a committeeman under

the Rules of the [BCRC].” R.R. at 257a.

7

And he left his polling place, because as the

testimony showed you, and I remind you, ladies and

gentlemen, it’s uncontradicted testimony.

***

So I would ask you to find that [] Mohn has

violated his Committeeperson Resolution, that he has not

helped endorse [sic] Republicans running for office, that

he did not cover his polls on Election Day, and he did not

distribute the Sample Ballot; in fact, actively worked

against it.

I mean, it’s one thing if you don’t like the ballot,

you throw it, you don’t pass it out, but he actively told

Republican voters not to follow the Sample Ballot, and

that, I suggest, is a violation of the Code of Ethics.

He did not conduct himself at all times in a manner

which will reflect credibly on the Party; he did not adhere

to the spirit and letter of his oath of office, which is this

(indicating); and he did not faithfully and conscientiously

perform the duties of his office.

R.R. at 242a-244a.

Ultimately, the Executive Committee passed a motion8 that

disqualified Mohn from the office of committeeman and declared that his office is

vacant. R.R. at 253a-254a. By letter dated September 12, 2016, the BCRC

informed Mohn of his disqualification and the vacancy of his office. Id. at 557a.

On December 5, 2016, the BCRC filed an Answer to Mohn’s

Complaint in the trial court denying all of the material allegations raised therein,

and raised in New Matter, inter alia, the affirmative defenses that Mohn’s claims

against the BCRC are “barred and/or limited by the doctrine or waiver,” “barred

8

The members of the Ethics Committee, who had referred the complaints to the

Executive Committee, did not participate in the deliberations or vote regarding Mohn’s removal

as a committeeman. R.R. at 251a-252a.

8

and/or limited by the doctrine of unclean hands,” and “barred by [his] failure to

exhaust other remedies.” R.R. at 123a-124a.

The parties subsequently filed cross-motions for summary judgment

and briefs in support thereof and in opposition thereto. Id. at 153a-319a, 320a-

356a, 357a-574a, 575a-594a. In his motion for summary judgment, Mohn alleged,

inter alia, that the BCRC removed him from office for a violation of its Ethics

Rules “by: (i) disseminating unethical and factually inaccurate statements during

the [2016 General Primary Election], and (ii) actively campaigning against an

endorsed candidate for committeeman and disparaging the importance and value of

the Bucks County [Republican Party] sample ballot.” Id. at 154a. Mohn asserted

that BCRC “may not disqualify a committee person for alleged violations of Ethics

Rules” because “they do not apply to committee persons,” but, rather “to ‘elected

and appointed public officials.’ Rule VII.” Id. at 163a.

Additionally, relying on Bentman v. Seventh Ward Democratic

Executive Committee, 218 A.2d 261, 264-65 (Pa. 1966), Mohn claimed that the

BCRC could not remove him from office under Rule I, Article 3, because it only

“prohibits a committeeman from supporting a candidate for election in opposition

to any nominee of the Republican Party in a general election,” not in a General

Primary Election as herein, and he “cannot be found to have neglected or refused

to attend to the duties of his office because the alleged conduct occurred before

[his] current term of office.” R.R. at 164a (emphasis in original).

In its cross-motion for summary judgment, the BCRC alleged, inter

alia, that “Mohn’s refusal to participate in the hearings before the [BCRC] Ethics

Committee and the [BCRC] Executive Committee and [his] failure to address the

evidence against him and/or to proffer evidence on his behalf constitutes a waiver”

9

of the claims raised in Counts I and III of the Complaint, and his “prayers for

declaratory or injunctive relief” “are estopped” as a result of his non-participation.

R.R. at 375a. The BCRC also asserted that “[b]ecause Mohn’s removal from

office did not implicate a state function under color of statute, his disqualification

is a purely intra-party matter and [the trial court] lack[ed] jurisdiction to adjudicate

his claims with regard to the propriety of the [BCRC]’s application of its Rules to

his conduct in the performance of his Party office. [Bentman].” Id. at 376a.

Following a trial court argument on the cross-motions at which

counsel for both parties appeared, see N.T. 11/27/179 at 2-26, the trial court issued

the instant order granting BCRC’s cross-motion for summary judgment and

denying Mohn’s motion for summary judgment. R.R. at 631a.10 Mohn then filed

this appeal.11

9

“N.T. 11/27/17” refers to the transcript of the trial court argument on the cross-motions

for summary judgment.

10

In the Pa. R.A.P. 1925(a) opinion filed in support of its order, the trial court stated:

The issue on appeal is whether this court has jurisdiction to

intervene in intra[-]party political association matters regarding the

removal of an elected committeeperson. The [BCRC] has a right

to political association free from state interference under the First

and Fourteenth Amendments of the United States Constitution.

Further, [Section 812 of the] Election Code, 25 P.S. §2842,

provides that elected committee people “shall be subject to the

control, direction, and supervision of the political committee of

which they are members.” This includes the right to determine its

membership based on self-generated rules. [Democratic Party of

the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107,

121 (1981)].

A court must intervene when “[]the internal organization of

a political party directly affects its performance of such public

function.” [Bentman, 218 A.2d at 266.] However, this

(Footnote continued on next page…)

10

(continued…)

intervention is qualified. “The invocation of judicial interference

in this area must be restricted or circumscribed; judicial

intervention must be limited to controversies where the issue raised

bears a direct and substantial relationship to the performance of

public functions by the political party.” [Id. (emphasis in

original)].

In Bentman, the issue was whether the political party could

remove newly elected members from their positions before they

were ever able to perform their duties to the party. [Id. at 266].

The Court was concerned with the party’s interference with the

direct and substantial public interest of the democratic system.

[Id.] Importantly, the Court noted that these elected

committeemen were removed “not for anything which they had

done as committeemen or in their representative capacity but by

reason of that which it is alleged they had done prior to their

election and selection.” [Id.] Therefore, the Court in Bentman

held it was appropriate to intervene in the political party’s action

because of the public interest at stake regarding the democratic

process and rendering the “electoral process a nullity . . . .” [Id.]

This case is distinguishable from Bentman. Here, Mohn

was removed for his failure to comply with the BCRC Rules while

acting in his capacity as an elected Committee member. Thus, the

public interest of concern in the Bentman case of a party

disregarding the democratic process and dismissing an elected

official without cause is not present here. This is a purely intra-

party disciplinary matter that the U.S. Constitution has reserved to

the party to address free from government intervention.

Therefore, this court lacks jurisdiction over this issue and

did not err when it granted BCRC’s Cross-Motion for Summary

Judgment.

R.R. at 676a.

11

This Court’s review of the trial court’s order granting the cross-motion for summary

judgment is limited to determining whether there has been an error of law or a manifest abuse of

discretion. Borough of Crafton v. Gaitens, 534 A.2d 1149, 1152 (Pa. Cmwlth. 1987). “An abuse

(Footnote continued on next page…)

11

On appeal, Mohn claims that the trial court erred in determining that it

did not have jurisdiction to grant the requested declaratory and injunctive relief and

in granting the BCRC’s cross-motion for summary judgment, because BCRC did

not have the authority to remove him under the BCRC’s Rules. To the contrary,

the record in this matter demonstrates that the court did not err in granting the

BCRC’s cross-motion for summary judgment and in denying Mohn’s request for

declaratory and injunctive relief.12

As the United States Supreme Court has explained:

The State argues that its law places only a minor

burden on the National Party. The National Party argues

that the burden is substantial, because it prevents the

Party from “screen[ing] out those whose affiliation is . . .

slight, tenuous, or fleeting,” and that such screening is

essential to build a more effective and responsible Party.

But it is not for the courts to mediate the merits of this

dispute. For even if the State was correct, a State, or a

court, may not constitutionally substitute its own

judgment for that of the Party. A political party’s choice

among the various ways of determining the makeup of a

State’s delegation to the party’s national convention is

protected by the Constitution. And as is true of all

expressions of First Amendment freedoms, the courts

(continued…)

of discretion is not merely an error of judgment, but if in reaching a conclusion the law is

overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is

abused.” Paden v. Baker Concrete Construction, Inc., 658 A.2d 341, 343 (Pa. 1995) (citations

omitted).

12

It is beyond cavil that we may affirm the trial court’s order on any basis appearing in

the record. In re Primary Election of May 15, 2018, 192 A.3d 313, 315 n.2 (Pa. Cmwlth. 2018)

(citation omitted).

12

may not interfere on the ground that they view a

particular expression as unwise or irrational.

Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S.

107, 123-24 (1981) (citations omitted).

This Court has specifically recognized the foregoing, stating, in

relevant part:

Section 807 of the Election Code, 25 P.S. §2837 []

provides, in pertinent part:

There may be in each county a county

committee for each political party within

such county, the members of which shall be

elected at the spring primary, or appointed,

as the rules of the respective parties within

the county may provide. (Emphasis added.)

The United States Supreme Court has made clear that

political parties have a right, inherent in the

Constitutional protection of freedom of association under

the First and Fourteenth Amendments, to determine the

qualifications of those eligible for participation in party

politics. See [Democratic Party of the United States].

And the Supreme Court has recognized the

“‘particularized legitimate purpose’ . . . of preventing

inter[-]party raiding, a matter which [bears] on ‘the

integrity of the electoral process.’” Storer v. Brown, 415

U.S. 724, 731 [] (1974) (citation[s] omitted). We read

Section 807 of the Election Code to safeguard this

important constitutional right by providing that

qualifications for local party office may be determined by

reasonable party rules.

In re Nomination Petition of Kielstock, 473 A.2d 713, 715 (Pa. Cmwlth. 1984).

As outlined above, pursuant to the authority conferred by the Election

Code and the Rules and Bylaws of the Republican Party of Pennsylvania, the

BCRC has adopted Rule I, Article 3, which permits its Executive Committee to

disqualify a committeeman for “neglecting or refusing to attend to the duties of his

13

. . . office.” R.R. at 36a.13 Upon his election to the office of committeeman, Mohn

signed the BCRC’s Executive Committee Resolution outlining the duties of that

office to include helping endorsed Republicans running for office in line with the

BCRC’s Bylaws, covering the polls on election days, and distributing the sample

ballot. Id. at 260a. The unrebutted evidence presented at the Executive Committee

hearing clearly establishes that Mohn “neglect[ed] or refus[ed] to attend to the

duties of his . . . office” by being present at polling places during the April 26,

2016 General Primary Election and handing out sample ballots that were not those

endorsed by the BCRC, but were produced by the PAC for which he was the

Treasurer. See id. at 193a-195a, 199a-200a, 206a-207a, 217a-222a. Following the

hearing, the BCRC could properly remove Mohn from office and declare the office

vacant on this basis alone pursuant to Rule I, Article 3. See, e.g., In re Smith, 516

A.2d 797, 799 (Pa. Cmwlth. 1986), wherein we stated:

We also find Rule 25[, precluding committeemen

from serving in that office if they have supported

unendorsed candidates,] to be constitutionally valid as

applied to the facts found by the trial court. Although

Rule 25 does not contain a time limit restricting prior

support of opposing party candidates, we believe that it is

to be given a reasonable interpretation. Because the acts

complained of in this matter took place in the preceding

municipal election, when the candidates were Democratic

Committee office-holders, we find no unreasonable

enforcement.

Accordingly, we find no unreasonable enforcement of Rule I, Article 3 compelling

judicial intervention based on the substantial unrebutted evidence demonstrating

13

As indicated above, BCRC’s Rule I, Article 3 comports with the requirements of

Section 807 of the Election Code in that it is consistent with Rule 11.1 of the Rules and Bylaws

of the Republican Party of Pennsylvania. See supra n.2.

14

Mohn’s violation of the duties of his office as expressed in the BCRC’s Executive

Committee Resolution.14

Moreover, Mohn’s reliance on Bentman, to purportedly preclude

BCRC’s disciplinary action in this regard, is misplaced. As the Superior Court has

stated:

The holding in Bentman was that the court had

jurisdiction to entertain a claim that removal of [the

committeemen] pursuant to the [local party rule] violated

due process to the extent that the removal bore a

relationship to the selection of party nominees for public

office. Hence, the highly significant qualification to the

holding of Bentman places the instant case outside of its

strict application.

14

As our Supreme Court explained long ago:

It is quite clear under the law of Pennsylvania that a Court

of equity will not intervene unless the remedies provided by the

constitution and by-laws of the organization have been exhausted.

The only exceptions to this rule are (1) if the exhaustion of

internal remedies would be futile and illusory; (2) if this would

under the circumstances in effect be a denial of justice; or (3) if the

action taken by the organization violates due process. If any of

these conditions exist, exhaustion of internal remedies is not a

condition precedent to judicial relief. Such, however, is not the

case before us. Plaintiff’s own complaint and exhibits indicate that

far from denying due process the [organization’s] constitution and

by-laws afford an opportunity for a fair hearing to an aggrieved

party.

Durso v. Philadelphia Musical Society, Local No. 77, 139 A.2d 555, 557-58 (Pa. 1958) (citations

omitted). See also Fox v. Tucker, 320 A.2d 919, 921 (Pa. Cmwlth. 1974) (holding that the

judiciary “should not and may not interfere in the determinations of an association, including this

political party, until the available internal remedies have been exhausted”).

15

Gordon v. Philadelphia County Democratic Executive Committee, 80 A.3d 464,

469 (Pa. Super. 2013), overruled on other grounds, Mohn v. Bucks County

Republican Committee, 218 A.3d 927 (Pa. Super. 2019) (emphasis in original).

Likewise, in the instant matter, the record demonstrates that Mohn’s removal from

office is in no way related to the BCRC’s present selection of party nominees for

public office, thereby distinguishing this case from Bentman as well.15

15

Specifically, the transcript of the trial court argument states, in relevant part:

[MOHN’S COUNSEL]: Your Honor, I believe what

you’re getting at is that the officials in Bentman, there actually

were vacancies in a judicial office.

THE COURT: And they were running?

[MOHN’S COUNSEL]: Correct.

THE COURT: Okay. Does that make a difference that one

time we’re talking about an actual election that the public is

involved in and the other time we’re talking about the rules of a

group, a party; does that make an important difference to give me

jurisdiction or not?

[MOHN’S COUNSEL]: No, your Honor, it does not make

a difference. This Court does not have to wait for there to be a

vacancy in a political office and then have Mohn file an action for

mandamus to be replaced as a committeeman so he can participate.

The harm is that . . . the harm, your Honor, is that he is not

in his position to perform this duty if the duty would need to be

performed.

THE COURT: What duty?

[MOHN’S COUNSEL]: To participate in the selection of

candidates for a vacant political office.

(Footnote continued on next page…)

16

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

Judge Brobson did not participate in the decision of this case.

Judge Covey did not participate in the decision of this case.

Judge Fizzano Cannon did not participate in the decision of this case.

(continued…)

THE COURT: Okay. Is there something pending

presently? Is this a hypothetical case? Is this just, like, if

something happens, then he’s not going to be allowed to

participate; therefore tell him he’s allowed to participate now?

It sounds like to me there’s no case here the way you’re

phrasing it. There’s nothing actionable.

R.R. at 652a-653a.

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Mohn, Chad Wallace :

and Irene Silvius :

:

v. : No. 24 C.D. 2018

:

Bucks County :

Republican Committee :

:

Appeal of: Daniel Mohn :

ORDER

AND NOW, this 6th day of March, 2020, the order of the Bucks

County Court of Common Pleas dated December 14, 2017, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Mohn, Chad Wallace :

and Irene Silvius :

: No. 24 C.D. 2018

v. :

: Argued: December 12, 2019

Bucks County :

Republican Committee :

:

Appeal of: Daniel Mohn :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

CONCURRING/DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: March 6, 2020

The independence of political party committees is well established and

has been traditionally recognized by the courts as the basis for not interfering with

intra-party committee matters. While intra-party political matters clearly remain

within the domain of the party committee itself, this case presents the unique factual

situation which gave rise to the Constitutional implications addressed by the

Pennsylvania Supreme Court in Bentman v. Seventh Ward Democratic Executive

Committee, 218 A.2d 261 (Pa. 1966), i.e., whether removal of committee members

for activities undertaken prior to their election constitutes state action.1

1

In the May 2014 primary election, a majority of the public’s voters who belong to the

Republican Party in Daniel Mohn’s election district elected him to serve as a committeeman on

the Bucks County Republican Committee (Committee or County Committee) to a two-year term.

Clearly and foremost, the constitutional precept of freedom of

association has been the bulwark of political committee independence. It is the

parameters of this independence that were examined by the Pennsylvania Supreme

On August 23, 2014, Mohn signed the Committee People Resolution, which outlined the duties of

a committeeperson. “Two relevant duties include (1) helping to endorse Republicans running for

office in accordance with the Committee[’s] [b]y-[l]aws and (2) to cover polls on election days,

and to distribute the sample ballot.” (Trial court op. at 2.) According to Rule I, Article 3 of the

Rules of the Republican Party of Bucks County Pennsylvania (the Committee Rule), “[w]henever

it shall appear a [committee]person . . . is neglecting or refusing to attend to [his] duties . . . he

[] shall be disqualified and his membership or office shall be declared vacant . . . .” (Reproduced

Record (R.R.) at 36a) (emphasis added). Mohn was subsequently elected in the April 2016 primary

for another term as a committeeman on the Committee for a term effective June 6, 2016, until June

4, 2018. (R.R. at 37a.)

“Following the April 26, 2016 election, members of the [Bucks County Republican Party]

filed ethics complaints with the [Committee] regarding Mohn’s actions during the April 2016

election.” (Trial court op. at 2.) On May 18, 2016, a letter was sent to Mohn from the Ethics

Committee and a hearing was held on August 11, 2016, on the charges before the Executive

Committee, which is a special body elected by the members of the County Committee. See R.R.

at 39a. Ultimately, by letter dated September 12, 2016, the Executive Committee notified Mohn

that he was removed from his 2016-2018 position as a committeeperson for activities conducted

during his 2014-2016 term. (R.R. at 36a.) In essence, six months into his 2016-2018 term Mohn

was removed for the 2014-2016 term activities.

Mohn was reelected in the April 26, 2016 primary election to a second two-year term

(2016-2018). Therefore, the decision of the Executive Committee to oust Mohn from his position

as an elected member of the Committee effectively nullified the results of an election, based

upon conduct that Mohn committed in the term prior to his reelection and the commencement

of his second term. In other words, the Executive Committee acted retroactively, disqualifying

Mohn from serving his second term because he committed conduct that could potentially serve as

a sufficient justification to remove him during his first term.

Mohn filed a declaratory judgment action. The Bucks County Court of Common Pleas

(trial court) concluded that it had no authority to “intervene in intra[-]party political association

matters regarding the removal of an elected committeeperson” and granted summary judgment in

favor of the County Committee. (Trial court op. at 1.) On appeal, Mohn argues that the trial

court’s ruling clearly contradicts the underlying tenets, foundational premises, and holding in

Bentman.

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Court in Bentman. The Court recognized the “reluctance of courts in the past to

interfere in and to entertain litigation dealing with the internal organization or

management of any private entity.” Bentman, 218 A.2d at 262. Issued in 1966,

Bentman is a landmark decision wherein our Supreme Court recognized its prior

case law strictly adhering to the belief “that courts will not interfere with the actions

and internal organization of a political party” because “officers of a political party

are private, not public, officers” and “[p]olitical parties . . . must govern themselves

by party law.” Id. at 263-64 (internal citation omitted). Instead, acknowledging the

additions and alterations to the Pennsylvania Election Code (Election Code),2 “the

extension in recent years of the concept of ‘state action’ under the 14th

Amendment,” Bentman, 218 A.2d at 266, and the proverbial “changing of the

times,” the Bentman court explained:

Today, [] the relationship between political parties, the

government and the public has become such that, in many

areas, the public interest is not only directly affected by

political parties but such parties actually perform public

functions imposed upon them by law. Insofar as a

political party performs statutorily[]imposed public

functions and to the extent that its actions constitute

state action, the internal organization of such political

party is a matter of such concern to the public as to

make it subject to constitutional limitations and

judicial restraint. When the internal organization of a

political party directly affects its performance of such

public function then not only may the judiciary

intervene [] it must intervene.

Id. (bold emphasis added.)

On a substantive level, the facts contained in Bentman remarkably

mimic those presented in this case. In Bentman, on April 28, 1964, at a primary

2

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.

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election, two individuals were elected to serve as committeemen on the Democratic

Executive Committee of the 7th Ward in Philadelphia. Subsequently, on August 10,

1964, the committeemen were given written notice that the Executive Committee

would meet two days later to vote upon their removal as committeemen. The basis

for the removal was that the committeemen had “failed to act in harmony with the

Executive Committee,” id. at 263, specifically because they “had supported and

worked for the nomination of a candidate for the Democratic nomination for the

United States Senate who had not been endorsed by the Democratic organization of

Philadelphia.” Id. at n.1. However, as the Supreme Court pointed out, “[t]he alleged

disloyalty took place at a time when [the individuals] were not party

committeemen.” Id.

The committeemen in Bentman commenced a mandamus action,

claiming their removal was without cause and violated constitutional due process.

The court of common pleas granted the Executive Committee’s preliminary

objections, holding that it lacked jurisdiction to interfere with the internal operations

of a political party because the party was a private organization performing private

action. Our Supreme Court reversed. In doing so, the Supreme Court discussed the

nature and statutory role of a political party committee and judicial oversight of that

committee when it removes a member, stating that

[t]he challenge in this action is to the right of a party

committee to refuse recognition of membership on

such committee to persons who have been lawfully

elected to such membership by a majority of the

qualified party electors. Membership on such committee

. . . is an important right and privilege not only to the

person elected but also to the voters who elected such

person to act as their representative on the committee.

Membership on that committee carries with it the right

to participate in selection of the political body which,

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under the legislative direction, in certain instances,

selects the party nominees for public office, an activity

clearly constituting state action under the 14th

Amendment. Deprivation of such membership and the

concomitant right of participation in the selection of

public officers bears such a direct and substantial

relationship to the electoral process as to be a matter

of judicial concern; only by the intervention of the

courts can the constitutional limitations on the exercise

of state action be safeguarded.

Id. at 269 (bold emphasis added).

The Supreme Court continued to explain why an elected

committeeperson engages in state action when he/she has a duty and obligation to

elect others to a political position, saying:

When these [political party] officials participate in what is

a part of the state’s election machinery, they are election

officers of the state de facto if not de jure, and as such must

observe the limitations of the Constitution. Having

undertaken to perform an important function relating to

the exercise of sovereignty by the people, they may not

violate the fundamental principles laid down by the

Constitution for its exercise.

Id. at 269 (quoting Rice v. Elmore, 165 F.2d 387, 391 (4th Cir. 1947)).

In Bentman, our Supreme Court further commented on how the

citizens’ fundamental right to vote and place an individual in office to represent them

is severely jeopardized, if not infringed, in circumstances remarkably similar to

those present here:

The instant controversy, intra-party in nature,

presents a basic and fundamental issue in the

democratic process and government by

representation: whether the electors of a political

party have a right, cognizable in a court of law, to

choose whom they will to represent them in their

party’s organization and councils? [The

committeemen], availing themselves of the electoral

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machinery provided by law for such purpose, received a

plurality of the votes cast by members of their own party,

in their respective districts, for the party offices of party

committeemen to represent such party electors in the party

organization and, specifically, in the Executive

Committee; the Executive Committee removed them

and refused to accord recognition to them as the chosen

representatives of the majority of the party electorate

in their districts . . . . The Executive Committee, by its

action, ha[d] ignored the fact that these two persons[,]

by a majority of the party electors were chosen to

represent them, has rendered the electoral process a

nullity and a farce [and] has denied the majority of the

party electors the right to be represented by persons of

their choice . . . .

Id. at 266.

Against the specific backdrop that committeepersons had been removed

for actions taken prior to their election, the Supreme Court also rejected the argument

of the Executive Committee, which is the same argument relied upon by the trial

court in this case, i.e., that it had the authority under section 812 of the Election

Code3 to remove the committeepersons. In this regard, the Supreme Court stated

that if it “construe[d] the language of [section 812]—‘control, direction and

supervision’—to mean that the Executive Committee thereby is given the authority

to refuse recognition to the choice of the party electors in the selection of party

committeemen and to refuse to allow them to act as party committeemen,” then the

court would “reach a result [that is] patently absurd and unreasonable,” i.e., the

Executive Committee would be allowed “to nullify and ignore, without legal

cause, the results of [the] election and selection of party committeemen.”

Bentman, 218 A.2d at 267 (emphasis added). The Supreme Court then concluded

3

This section states that “[w]hen acting in the capacity of a political committee, such duly

elected or appointed members shall be subject to the control, direction and supervision of the

political committee of which they are members.” 25 P.S. §2842.

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that its reading of the words “control, direction and supervision” in the context of

the Election Code as a whole establishes that

[t]he dominant idea pervading the entire statute is the

absolute assurance to the citizen that his wish as to the

conduct of the affairs of his party may be expressed

through his ballot, and thus given effect, whether it be in

accord with the wishes of the leaders of his party or not,

and that thus shall be put in effective operation, in the

primaries, the underlying principle of democracy, which

makes the will of an unfettered majority controlling. In

other words, the scheme is to permit the voters to

construct the organization from the bottom upwards,

instead of permitting leaders to construct it from the

top downwards.

Id. at 267 (quoting People ex rel. Coffey v. Democratic General Committee, 58 N.E.

124, 126 (N.Y. Ct. App. 1900)).

From this line of reasoning, the Supreme Court in Bentman departed

with the case law from yore in unequivocal words:

Inasmuch as the legislature has seen fit to impose on

political party organization certain duties which bear a

direct and substantial relationship to the selection of

public officials by the electoral process the complete

privacy in nature of party organization recognized by

our courts in the past no longer exists. The assumption

of such obligations by party organizations has marked the

entry by such party organizations into an area of public

activity which renders their activities in such area

amenable to judicial supervision.

Id. at 269 (emphasis added).

Applying Bentman here, to conclude that the trial court in this case did

not possess jurisdiction to entertain Mohn’s declaratory judgment claims would

ignore the Court’s entire discourse regarding Constitutional limitations on state

action. The majority asserts that Bentman is inapplicable because, in that case, the

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committeepersons were removed at a time when the committee was in the process

of selecting an individual to fill a vacancy in a political office, while there was no

such vacancy pending here. (Maj. slip op. at 15 & n.15.) However, such a narrow

reading of Bentman renders its analysis superfluous.

As Bentman stated, committeepersons “are election officers of the state

de facto if not de jure, and as such must observe the limitations of the Constitution.”

Id. at 269 (quoting Rice, 165 F.2d at 391). Indeed, if the applicability of Bentman

depended upon whether there were a vacancy at the time of the removal, as the

majority concludes, then a county committee could skirt the Constitution by simply

removing the committeeperson when the circumstances and timing are just right. If

this is all that it would take to escape the grasp of the Constitution, the result would

not only be a grave injustice to the spirit and intent of Bentman, but a clear

contravention of the Supreme Court’s unconditional statement in that case:

“Membership on [the] committee carries with it the right . . . [to] select[] the party

nominees for public office, an activity clearly constituting state action under the 14th

Amendment.” Id. at 269. Lest there be any doubt, one need only read the sentence

in Bentman that immediately follows: “Deprivation of such membership and the

concomitant right of participation in the selection of public officers bears such a

direct and substantial relationship to the electoral process as to be a matter of judicial

concern” and “only by the intervention of the courts can the constitutional limitations

on the exercise of state action be safeguarded.” Id. (emphasis in original).

The Court’s holding in Bentman was unequivocal that when a

committeeperson is removed by a committee for activity undertaken prior to

their election to the committee, the public’s fundamental right to vote and place an

individual in office is severely jeopardized, if not infringed, and the entire electoral

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process eroded and undermined. This is evidenced, among other ways, by the

Bentman court’s statements that when the committeepersons were removed for

supporting unendorsed candidates before their term of office, the committee’s

action in removing the committeepersons had “ignored the fact that these two

[committee]persons by a majority of the party electorate were chosen to represent

them, ha[d] rendered the electoral process a nullity and a farce, [and] ha[d] denied

the majority of the party electors the right to be represented by persons of their choice

in the party councils.” Id. at 266.

Where, as here, a committee removes a committeeperson for conduct

that occurred before the committeeperson was duly elected (or reelected) to the term

of the political position, Bentman would dictate that this be regarded as state action

because it infringes upon the fundamental right to vote and its corollary rights.

In fact, this interpretation of Bentman has essentially been adopted by

this Court, when we described Bentman as a case where “[o]ur Supreme Court

held that protection of the rights of the electors who had voted the ousted

committeemen into office required that they could not be removed from that

office for activity engaged in prior to assuming office.” In re Nomination

Petitions of Kielstock, 473 A.2d 713, 716 (Pa. Cmwlth. 1984). There does not appear

to be any principled basis upon which to conclude that the Committee did not engage

in state action simply because Mohn committed his alleged offensive conduct while

serving as a committeeperson during the term that preceded the term in which he

was removed. In short, under the precepts of Bentman, when the citizens reelected

Mohn for another term, they reasserted their will and the will of that of the majority

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of Republican voters in Mohn’s district.4 Ultimately, In re Nomination Petitions of

Kielstock actually supports Mohn’s position that Bentman is controlling authority in

this matter for that case’s own discussion of Bentman establishes that Mohn’s

situation is factually and legally indistinguishable from those of the

committeepersons in Bentman, where the court of common pleas was determined to

have jurisdiction.

Nonetheless, relying on the freedom of association inherent in the First

Amendment,5 the majority seemingly concludes that the County Committee’s

removal here is protected by the Constitution and affirms the trial court on this

alternative basis. (Maj. slip op. at 12 and n.12.) For support, the majority relies on

In re Nomination Petition of Smith, 516 A.2d 797 (Pa. Cmwlth. 1986), and In re

Nomination Petitions of Kielstock. However, these cases are readily distinguishable.

In both In re Nomination Petition of Smith and In re Nomination

Petitions of Kielstock, this Court concluded that under the party rules for the

Democratic Party, the candidates were not eligible to run for office for the

Democratic Party because they previously endorsed candidates from the Republican

Party. In striking the candidates’ nomination petitions for office, we upheld the party

rules on the ground that, pursuant to the freedom of association, “the Democratic

Party ha[d] a right . . . to protect its identity as an association by excluding from the

field of choice for party office, nominees who have demonstrated allegiance to

opposition candidates.” In re Nomination Petitions of Kielstock, 473 A.2d at 716.

This Court differentiated the party rules from the rule in Bentman for two reasons.

4

The County Committee rule, (i.e., “. . . is neglecting or refusing . . .”), is noted in this

regard.

5

U.S. Const. amend. 1.

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First, the latter rule, i.e., the Bentman rule, permitted the “ouster of officers already

elected” but the former related “to the eligibility of the candidates to run.” In re

Nomination Petitions of Kielstock, 473 A.2d at 716. Second, the latter rule

disqualified a Democratic officeholder because he “merely [] support[ed] a

Democratic candidate in the primary [who was] not endorsed,” while the former rule

was used to declare Democratic candidates ineligible because they provided “active

support for the election of the opposition party candidates[, i.e., the Republican

Party,] in the general election.” In re Nomination Petitions of Kielstock, 473 A.2d

at 716.

Here, a committeeman was removed from office for conduct that he

committed prior to his reelection, and the Committee Rule, stated in present tense—

“is neglecting or refusing to attend to [his] duties”—was used as the basis to oust

him after he was duly elected as a committeeperson. On its face, the Committee

Rule has nothing to do with the eligibility to run for office, like the rules in the cases

relied upon by the majority, but, rather, pertains to the removal from office, which

is identical to the rule at issue in Bentman. Moreover, just like the committeepersons

in Bentman, Mohn, a member of the Republican Party, supported unendorsed

candidates from the same party. In contrast, the rules in both In re Nomination

Petition of Smith and In re Nomination Petitions of Kielstock involved the

candidates’ endorsement of an opposing party. Consequently, the associational

rights of the Democratic Party in In re Nomination Petition of Smith and In re

Nomination Petitions of Kielstock were exceptionally weighty because they

maintained the line of demarcation that existed between individuals and associations

that were registered with the Democratic Party and those who were not. See In re

Nomination Petitions of Smith, 182 A.3d 12, 22 (Pa. Cmwlth. 2018) (single judge

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op., McCullough, J.) (discussing “the associational rights of the Republican and

Democratic parties to exclude the other party’s members from participating in the

nomination process”).

The line of demarcation noted above does not exist here. Moreover,

the associational rights of the County Committee and its interest in enforcing the

Committee Rule is questionable because the Committee Rule, on its face, does not

appear to apply to the circumstances of this case. Further, “state action” under

Bentman would allow the Court to assess whether the associational rights of the

County Committee, per se, unreservedly, and as a matter of law, trump the

Constitutional restraints placed on state action and the citizens’ right to vote for the

representatives of their choice. See Lynch v. Torquato, 343 F.2d 370, 372 (3d Cir.

1965) (noting that “the citizen’s constitutional right . . . to [] choo[se] . . . who shall

be his elected representatives in the conduct of government” is not a matter or legal

issue that falls within “the internal management of a political party”).6

Thus, there is a genuine issue of material fact as to whether “the right

of the party electors, as individuals, to choose their representatives” under Bentman

6

Further, as a general matter, courts have noted that “[p]rimaries tend to weaken party

cohesiveness, alter a party’s candidate mix, and change a party’s political messages.” Utah

Republican Party v. Cox, 892 F.3d 1066, 1112 (10th Cir. 2018). Thus, when members of a political

party play by and follow their own rules, any internal debate and strife surrounding the support

and selection of its candidates is part and parcel of a healthy Republic form of government. Open

political dialogue is essential to our democracy, and the selection and election process is a time

to“[e]xtend the sphere [and] take in a greater variety of [] interests,” which, in the end, will “make

it less probable that a majority of the whole will have a common motive to invade the rights of

other citizens[.]” Baber v. Dunlap, 376 F. Supp. 3d 125 (D. Me. 2018) (quoting The Federalist

No. 10 (James Madison) (Clinton Rossiter ed., 1961)). As such, in the unique circumstances of

this case, and where, as here, a party political committee assumes the role of a state actor, the

committee generally does not have a compelling interest in “protecting the integrity of the Party

against the Party itself.” Eu v. San Francisco County Democratic Central Committee, 489 U.S.

214, 232 (1989).

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outweighs “the right of the party as an association to identify the people who

constitute the association and to limit the association to those people only.” In re

Nomination Petitions of Kielstock, 473 A.2d at 716. At the very least, the case is not

clear and free from doubt, especially considering that the Committee Rule is not

written in a manner as to impose “prospective” discipline in the future for past

conduct, and the trial court granted summary judgment prematurely. As such, I

cannot subscribe to the majority’s affirmance of the trial court on an alternative

rationale.

In light of the above, I concur with the majority that intra-party

political matters remain within the domain of the political party itself, but I cannot

ignore the extensive analysis in Bentman recognizing the need to observe

Constitutional limitations in a proceeding such as the one that occurred here.7

________________________________

PATRICIA A. McCULLOUGH, Judge

7

As a final matter, I would emphasize that nothing herein is intended to suggest that the

County Committee could not revise its rules and enact and/or enforce a rule containing express

language that would be sufficient to remove a committeeperson in a term succeeding the conduct

committed as in this case—or, in other words, a rule declaring that a committeeperson forfeited a

future term of office for failing to support endorsed candidates in a previous term. I simply note

that there is no such rule at present.

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