Opinion

Nutter v. Dougherty

  • 921 A.2d 44
  • 2007 Pa. Commw. LEXIS 132
Court
Commonwealth Court of Pennsylvania
Filed
Apr 2, 2007
Status
Published
Author
Colins
On the bench
Ner, Leadbetter, Colins, Smith-Ribner, Pellegrini, Friedman, Jubelirer, Leavitt
Cited by
9 cases

The opinion

DISSENTING AND CONCURRING OPINION BY

Judge COLINS.

I respectfully dissent to the majority’s thoughtful and thorough analysis regarding preemption. As the majority begins, the City has only such powers that the General Assembly has granted to it and which are necessary to effectuate those powers. Further, as the majority acknowledges, Section 18 of the Home Rule Act 1 provides that the City may not “exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are ... [applicable in every part of the Commonwealth.”

As further explained by the majority, legislative actions of the General Assembly may limit the power of municipalities to adopt certain laws because the statutory provision either explicitly or by implication preempts a municipality’s powers to adopt certain ordinances. The majority clearly sets forth the law regarding the preemption doctrine. However, I disagree with the majority’s application of the doctrine to the City’s campaign contribution ordinance.

The General Assembly made no clear or explicit statement that the Election Code preempted all local regulation of elections or campaigns. Accordingly, the inquiry must focus on the question of whether the comprehensive statutory scheme in the Election Code reflects the intent on the part of the General Assembly to regulate the entire field of elections, including campaign finance activity. There can be no argument that the Election Code is comprehensive with regard to the nomination process and the process of holding elections; however, I also believe that Sections 1621-1642 of the Election Code, 25 P.S. §§ 3241-3260b, which pertain entirely to campaign finance, constitute so comprehensive a regulatory scheme, addressing every aspect of campaign finance, that the scheme itself reflects a legislative intent not to limit campaign financing as the City has attempted to do through its ordinance.

These provisions thoroughly address the entire field of issues pertaining to campaign finance: the organization of political committees, their officers, and committees and candidates’ record-keeping (Section 1622, 25 P.S. § 3242); authorization for committees’ secretaries to accept contributions (Section 1623, 25 P.S. § 3243); the filing of registration statements by political committees receiving more than $250.00 (Section 1624, 25 P.S. § 3244); statements of lobbyists who have contributed regardless of amounts given (Section 3245, 25 P.S. § 3245); reporting by candidates and political committees to the Secretary of the Commonwealth regarding employment, contributions, and expenditures (Section 1626, 25 P.S. § 3246); waiver of reporting by local candidates by affi *68 davit (where the candidate attests that he or she does not intend to receive contributions in excess of $250.00) (Section 1933, 25 P.S. § 3246); completion and submission of annual reports by candidates and political committees (Section 1627, P.S. § 3247); late contributions or expenditures exceeding $500.00 after the filing of the pre-election report (Section 1628, 25 P.S. § 3248); oaths attached to reports and consequences of impropriety of submissions (Section 1629, 25 P.S. § 3249); residual funds of candidate or political committee (Section 1630, 25 P.S. § 3250); place of filing reports and late filing fees (Sections 1631-1632, 25 P.S. §§ 3251- and 3252); contributions by banks, corporations, and unincorporated associations, agents, anonymous contributors, and cash contributions (Section 1633-1634, 25 P.S. § 3253-3254); lawful expenses (Section 1634.1, 25 P.S. § 3254.1); independent audits and audits of expense accounts (Section 1635-1636, 25 P.S. § 3255-3256); proceedings against candidates for violations of contribution and expense provisions (Section 1637, 25 P.S. § 3257); advertising (Section 1638, 25 P.S. § 3258); powers and duties of the county supervisor of elections and the Secretary of the Commonwealth (Sections 1639 — 1640, 25 P.S. §§ 3259 — 3260); reports by business entities (Section 1641, 25 P.S. § 3260a); and enforcement (Section 1642, 25 P.S. § 3260b).

After reviewing these provisions, I believe that the General Assembly intended, without explicitly so saying, that local municipalities should not regulate the manner in and degree to which interested persons may express their support for a candidate in an election. While I agree with the majority that the Election Code does reflect the General Assembly’s intent to establish certain cooperation between state and local entities for the conduct of elections, I disagree with the majority’s conclusion that the General Assembly’s silence on the issue of contribution limits resolves the issue of whether the City may supplement the Election Code by creating limits applicable only in the City of Philadelphia.

In this writer’s opinion these comprehensive provisions provide all the support necessary to conclude that the General Assembly’s decision not to mention limits is a simple, clear, and obvious reflection of its decision not to provide for limitations on campaign contributions.

If we were to follow the majority’s conclusion, the natural consequence of this decision will be that any County or municipality with a home rule charter will adopt its own campaign financing code. This balkanization of the Election Code was clearly not intended by the General Assembly.

While the majority’s opinion is well-intended, I believe its holding constitutes judicial legislation. The mere existence of a laudatory goal cannot empower the City to create its own election code — for ignoring in one instance the Constitution, albeit for a salutary purpose, can lead, in other instances, to ignoring the Constitution for nefarious reasons. Courts simply should not engage in the act of legislating in order to address evils or inequities that must be resolved by the General Assembly. Such action must only be accomplished by our system of bi-cameral legislation with the approval of the Commonwealth’s chief executive.

Although the purpose of the City’s ordinance — to level the playing field so that qualified candidates without equal financial backing might stand a chance to compete with candidates who have greater financial resources or supporters with such resources — may be one that would create an improved election process, I would conclude that the implied intent of the General Assembly in adopting the campaign con *69 tribution and expense provisions in the Election Code was to totally preempt the regulation of campaign contributions.

I concur with the majority’s resolution of the Dougherty challenge to Nutter’s claims.

. First Class City Home Rule Act, Act of April 21, 1949, P.L. 665, as amended, 53 P.S. § 13133.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.