Petition for Writ of Certiorari — Fulton County, Pennsylvania, et al., Petitioners v. Secretary of the Commonwealth of Pennsylvania, et al.
Supreme Court briefMay 27, 2023
Ask Donna
What actually matters in this document.
Text
APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion
and
Concurring and
Dissenting Opinions in the Supreme
Court of Pennsylvania, Middle District
(April 19, 2023) . . . . . . . . . . . . . . . App. 1
Appendix B Report Containing Proposed Findings
of Fact and Recommendations
Concerning the Secretary of the
Commonwealth’s Application for an
Order Holding the County of Fulton,
et al, in Contempt and Imposing
Sanctions in the Commonwealth Court
of Pennsylvania
(November 18, 2022) . . . . . . . . . App. 108
App. 1
APPENDIX A
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
No. 3 MAP 2022
[Filed April 19, 2023]
_____________________________________________
COUNTY OF FULTON, FULTON COUNTY
)
BOARD OF ELECTIONS, STUART L.
)
ULSH, IN HIS OFFICIAL CAPACITY AS
)
COUNTY COMMISSIONER OF FULTON
)
COUNTY AND IN HIS CAPACITY AS A
)
RESIDENT, TAXPAYER AND ELECTOR IN )
FULTON COUNTY, AND RANDY H.
)
BUNCH, IN HIS OFFICIAL CAPACITY AS
)
COUNTY COMMISSIONER OF FULTON
)
COUNTY AND IN HIS CAPACITY AS A
)
RESIDENT, TAXPAYER AND ELECTOR
)
OF FULTON COUNTY,
)
Appellees
)
)
v.
)
)
SECRETARY OF THE COMMONWEALTH,
)
Appellant
)
____________________________________________ )
App. 2
No. 3 MAP 2022
Appeal from the Order of the Commonwealth Court
at No. 277 MD 2021 dated January 14, 2022.
SUBMITTED: October 21, 2022
TODD, C.J., DONOHUE, DOUGHERTY, WECHT,
MUNDY, BROBSON, JJ.
OPINION
JUSTICE WECHT
DECIDED: April 19, 2023
This Opinion concerns a party’s defiance of an order
issued by this Court. The underlying litigation began
well over a year ago, prompted by the Secretary of the
Commonwealth’s decertification of certain voting
equipment that Fulton County acquired from Dominion
Voting Systems, Inc. (“Dominion”) in 2019 and used in
the 2020 general election. The Secretary1 decertified
the voting equipment after learning that, following the
2020 election, Fulton County had allowed Wake
Technology Services, Inc. (“Wake TSI”), to perform a
probing inspection of that equipment as well as the
software and data contained therein. The Secretary
maintained that Wake TSI’s inspection had
compromised the integrity of the equipment. Fulton
County and the other named Petitioner-Appellees2 filed
1
Over the course of this litigation, various individuals have served
and/or acted in this capacity. Because the office’s litigation position
has not varied, we refer to “the Secretary” throughout this
Opinion.
2
Throughout this Opinion we primarily use “Fulton County” or
“the County” to refer collectively to Petitioner-Appellees. However,
App. 3
a Petition for Review in the Commonwealth Court’s
original jurisdiction challenging the Secretary’s
decertification authority generally and as applied in
this case.
During the pleading stage, the Secretary learned
that Fulton County intended to allow another entity,
Envoy Sage, LLC, to inspect the allegedly compromised
equipment. The Secretary sought a protective order
from the Commonwealth Court barring that inspection
and any other third-party inspection during the
litigation. The court denied relief. The Secretary
appealed that ruling to this Court, and we entered a
temporary order on January 27, 2022, to prevent the
inspection and to preserve the status quo during our
review of the Secretary’s appeal. Months later—and
with no public consideration, official proceedings, or
notice to the courts or other parties to this
litigation—the County allowed still another party,
Speckin Forensics, LLC (“Speckin”), to inspect the
voting equipment and electronic evidence at issue in
this litigation. Upon learning of this alleged violation
of our temporary order, the Secretary filed an
“Application for an Order Holding [the County] in
Contempt and Imposing Sanctions” (“Sanctions
Application”). That application is the central concern of
this Opinion.
especially later in this Opinion, particularly where we detail our
disposition of this matter, those terms sometimes will refer to
Fulton County strictly in its own right.
App. 4
After our preliminary review of the Secretary’s
application for sanctions, this Court appointed
President Judge Renée Cohn Jubelirer of the
Commonwealth Court as Special Master to make an
evidentiary record and to provide proposed findings of
fact, conclusions of law, and sanctions (if warranted) to
aid in this Court’s resolution of the allegations at issue.
Notwithstanding a convoluted case, an expedited
schedule, and the remarkable obstinacy of Fulton
County and its counsel, the Special Master performed
her task admirably. In her timely, painstaking “Report
Containing Proposed Findings of Fact and
Recommendations” (“Special Master’s Report” or
“SMR”), President Judge Cohn Jubelirer recommended
that this Court impose several sanctions upon Fulton
County, but did not impose sanctions upon the other
Petitioner-Appellees or Thomas Carroll, the attorney
who represented them during the relevant period.
There can be no orderly and effective administration
of justice if parties to litigation do not comply with
court orders. Our close review makes clear that Fulton
County willfully violated an order of this Court. As
well, we find that Fulton County and its various
attorneys have engaged in a sustained, deliberate
pattern of dilatory, obdurate, and vexatious conduct
and have acted in bad faith throughout these sanction
proceedings. Taken as a whole, this behavior prompts
us to sanction both the County and Attorney Carroll.
The details follow.
App. 5
I.
The Original Action and Interlocutory
Appeal to This Court3
A. Wake TSI’s Inspection of Fulton
County’s Dominion Voting
Equipment and the Secretary’s
Consequent Decertification
Fulton County formerly utilized Dominion’s
Democracy Suite 5.5A Election Management System
(“EMS”).4 The County leased the EMS from Dominion
in April 2019. The County used it for the first time in
that year’s municipal elections and used it again in the
2020 primary and general elections.
In December 2020, the County’s Board of
Commissioners, whose members also constituted the
County’s Board of Elections, retained Wake TSI to
3
Much of the account that follows is based upon matters over
which we may take judicial notice, and/or undisputed assertions of
fact substantiated by the parties’ pleadings and attachments in the
underlying litigation, the interlocutory appeal, and these sanction
proceedings. Our recitation finds further support in the Special
Master’s Report. For ease of reference, we attach a copy of the
Special Master’s Report to this decision.
4
“EMS” is a term that covers all devices and software involved in
running an election. Depending on context, we refer to it primarily
as “voting equipment.” The United States Department of
Homeland Security broadly has identified electronic voting
systems as “critical infrastructure.” See U.S. Dep’t of Homeland
Security, Statement by Sec. Jeh Johnson on the Designation of
Election Infrastructure as a Critical Infrastructure Subsector
(Jan. 6, 2017), available at https://www.dhs.gov/news/2017/01/06/
statement-secretary-johnson-designation-election-infrastructurecritical.
App. 6
analyze aspects of the November 2020 election in
Fulton County.5 Wake TSI personnel visited the
County offices containing the voting equipment, where
they “collected electronic copies of EMS application log
files, directory information, digital images of the
scanned ballots, Operating System (OS) directory and
file information, OS log files and pictures of the paper
Mail-In ballots.”6 The company claimed that an “IT
Support Technician, or an Election Commissioner,
remained with the technical team during the
assessment of the voting systems and was the only
person to access, copy or download information from
the EMS.”7
Wake TSI claimed to have identified “five issues of
note,” including a ballot scanning error rate of 0.005%,
which exceeded the error rate set by the federal
government (.0004%),8 and Dominion’s installation on
the EMS server of what Wake TSI described as a
“software toolbox [that] allows any user with access to
change and manipulate the EMS databases without
logging (recording) to the Database, EMS or OS
logfiles.”9 Wake TSI asserted that this software “makes
5
See Fulton Cty. Pa. Election Sys. Analysis, Amended Pet. for
Review, 9/17/2021, Ex. E (“Wake TSI Report”).
6
Wake TSI Report at 8-9.
7
Id. at 9.
8
Id. at 11-12.
9
Id. at 26.
App. 7
the system certification invalid.”10 Wake TSI also
opined “that the [2020] election [in Fulton County] was
well run, was conducted in a diligent and effective
manner[,] and followed the directions of the
Commonwealth.”11
On July 8, 2021, having learned that Fulton County
had provided third-party access to the County’s voting
equipment and that other counties had considered
retaining outside parties to review and digitally copy
their voting systems, the Secretary issued “Directive 1,”
invoking the Secretary’s authority under the
Pennsylvania Election Code.12 The Secretary
determined that third-party access to election-related
electronic infrastructure “undermines chain of custody
requirements and strict access limitations necessary to
prevent both intentional and inadvertent tampering”;
“jeopardizes the security and integrity of those
systems”; and “negate[s] the ability of electronic voting
system vendors to affirmatively state that such
systems continue to meet Commonwealth Security
10
Id.
11
Id. at 5.
12
Pet. for Review, Ex. F (invoking 25 P.S. § 3031.5(a))
(“Directive 1”). The full title of Directive 1 is “Directive Concerning
Access to Electronic Voting Systems, Including but Not Limited to
the Imaging of Software and Memory Files, Access to Related
Internal Components, and the Consequences to County Boards of
Allowing Such Access.” Section 3031.5(a) authorizes the Secretary
to “issue directives or instructions for implementation of electronic
voting procedures and for the operation of electronic voting
systems.” Exhibit F is attached to the County’s original Petition for
Review but missing from its Amended Petition.
App. 8
standards, are validated as not posing security risks,
and are able to be certified to perform as designed by”
the vendor.13
Directive 1 limits third-party access to “Electronic
Voting Systems” as follows:
a. County Boards of Elections shall not provide
physical, electronic, or internal access to third
parties seeking to copy and/or conduct an
examination of state-certified electronic voting
systems, or any components of such systems
....
b. If access described in Paragraph 3.a. occurs,
those pieces of voting equipment will be
considered no longer secure or reliable to use in
subsequent elections. As a result, the
Department of State will withdraw the
certification or use authority for those pieces of
the county voting system. . . .
c. The Commonwealth of Pennsylvania will not
reimburse any cost of replacement voting
equipment for which certification or use
authority has been withdrawn pursuant to this
directive.14
Directive 1 also requires boards of elections to “notify
the Secretary immediately upon receipt of any written
or verbal request for third-party access to an electronic
voting system, or any component thereof,” and directs
13
Directive 1 at 2-3 ¶2.
14
Id. at 2 ¶3.
App. 9
both elections boards and “voting system vendors . . . to
notify the Secretary immediately of any breach or
attempted breach in the chain of custody of its voting
system components.”15
According to the Secretary, Fulton County election
officials “confirmed” that the County had “allowed
Wake TSI . . . access to certain key components,”
including the “election database, results files, and
Windows system logs,” and had also allowed the
company to use a “‘system imaging tool to take
complete hard drive images of [certain election-related]
computers’ and ‘complete images of two USB thumb
drives’ used to transfer results files from their voting
system computers to the computers used to upload
results to the state’s voter registration and election
results reporting system.”16 The Secretary determined
that the County’s system had been “compromised” and
that “neither Fulton County; [Dominion]; nor the
[Secretary] can verify that the impacted components of
Fulton County’s leased voting system are safe to use in
future elections.”17 Accordingly, the Secretary
decertified the voting equipment that Fulton County
used in the November 2020 election.18
15
Id. at 2 ¶4.
16
Petition, Ex. H, Letter from Pa. Dep’t of State to Counsel for the
Fulton Cty. Bd. of Elections, 7/20/2021, at 1-2.
17
Id. at 2.
18
Id.
App. 10
B. Fulton County’s Petition for Review
Challenging the Secretary’s Exercise
of Decertification Authority
On August 18, 2021, Fulton County; the Fulton
County Board of Elections; and Stuart L. Ulsh and
Randy H. Bunch—individually and in their official
capacities as County Commissioners—filed a Petition
for Review against the Secretary in the Commonwealth
Court’s original jurisdiction. The County challenged the
Secretary’s authority to promulgate Directive 1 and
sought vacatur or reversal of the Secretary’s
decertification of the County’s voting equipment and/or
its denial of Fulton County’s access to state funds to
cover the costs of replacing the decertified equipment.
The County asserted in Count I that the
decertification was “arbitrary, capricious, and legally
improper, and an error of law, as [the Secretary] failed
to comply with the mandates of 25 P.S. § 3031.5(b)” by
not conducting a physical reexamination of the
County’s EMS before decertifying it.19 The County
asserted that, if the Secretary “had conducted the
mandated reexamination of” the County’s EMS, it
“would have found that” the EMS “continued to meet”
the Election Code’s security requirements.20
In Count II, the County sought a declaratory
judgment that the County has authority to allow a
19
Amended Pet. at 14 (Count I).
20
Id. at 14 ¶48.
App. 11
third-party vendor to examine and analyze its EMS.21
The County contended that, by “forbid[ding] any use of
third-party vendors to conduct an examination of
various components of” its EMS and doing so six
months after the County “engaged Wake TSI to assist
[the County] in conducting its ‘analysis,’” the Secretary
contradicted the Secretary’s own 2016 and 2020
guidance documents.22 These documents, the County
argued, generally anticipated counties’ use of thirdparty vendors, and the County asserted that the
“analysis and investigation of [the EMS] with the
assistance of Wake TSI was conducted in accordance
with the requirements of the [Code] as well as the
[Secretary’s] then-current Guidance.”23
Count II concluded with the following prayer for
relief:
Petitioners respectfully request that this
Honorable Court enter an Order declaring that
Petitioners . . . complied with the requirements
21
Id. at 15-19.
22
Id. at 15-16. The County argues that the Secretary’s September
2016 “Guidance on Electronic Voting System Preparation and
Security,” id., Ex. C (“2016 Guidance”), “expressly contemplates
the use of third-party vendors for electronic voting system
preparation and security,” 2016 Guidance at 7 ¶24, because the
2016 Guidance recommends procedures to employ “[i]f a county
uses an outside vendor to perform any of the election preparation
tasks.” Id. (quoting 2016 Guidance at 1); cf. Amended Petition,
Ex. D (“2020 Guidance”) (updating the 2016 Guidance but
preserving the reference to third-party vendors).
23
Amended Petition at 18 ¶64.
App. 12
of the Election Code and the Guidance issued by
[the Secretary] in retaining and utilizing [Wake
TSI] to assist [them] in conducting an analysis of
Fulton County’s Election System, and further
declaring that any finding to the contrary by
[the Secretary] should be stricken[,] and further
declaring the July 20, 2021 decertification by the
Secretary null and void and of no effect . . . .24
This aspect of the pleading dovetailed with Fulton
County’s claim that, had the Secretary inspected the
voting equipment before decertifying it, the Secretary
would have found that it continued to meet the Election
Code’s requirements for certification. In both regards,
the County made assertions whose veracity might
ultimately hinge upon disputed factual claims
pertaining to the voting equipment’s condition after
Wake TSI’s inspection.
In Count III, the County sought declaratory
judgment to the effect that, in issuing Directive 1, the
Secretary usurped the County’s Board of Elections’
“power . . . to conduct a systematic and thorough
inspection” of its elections with the assistance of thirdparty entities.25 In Count IV, the County sought a
declaration that the Secretary lacks authority to
withhold funds from the County to purchase
replacement machines.26 In Count V, the County
24
Id. at 19.
25
Id. at 20 ¶73.
26
See id. at 20-22.
App. 13
sought injunctive relief in furtherance of the foregoing
claims.27
The Secretary filed Preliminary Objections
demurring only to Count III. The Secretary emphasized
that the General Assembly delegated to the Secretary
the authority to examine, approve, and reexamine
voting systems and to issue directives or instructions
for electronic voting procedures. The Secretary also
noted that the General Assembly tasked the Secretary
with determining whether a county’s EMS “can be
safely used by voters at elections as provided” in the
Election Code.28
C. The Secretary Seeks to Prevent a
Third-Party Inspection During the
Litigation of the Petition for Review
On November 29, 2021, the Secretary discovered “a
meeting agenda posted online” indicating that the
Fulton County Board of Commissioners would vote on
a motion the next day to allow the Senate
Intergovernmental Operations Committee (“Senate
Committee”) to examine the County’s voting
equipment.29 When contacted by the Secretary’s
counsel, Attorney Michele D. Hangley, counsel for the
27
See id. at 22-25.
28
Preliminary Objections, 10/18/2021, at 6 ¶¶15-16, 7 ¶17 (citing
25 P.S. § 3031.5(a)).
29
Emergency Application for an Order Prohibiting Spoliation of
Key Evidence Scheduled to Occur on Dec. 22, 2021, 12/17/2021, at
5 (“Emergency Application”) (quoting Fulton Cty. 11/30/2021
Meeting Agenda, Ex. A).
App. 14
County, Attorney Thomas W. King, III, explained that
the vote was not going forward and that the County
had not received a request from the Senate
Committee.30 Attorney King indicated that the County
intended to return its voting equipment to Dominion,
but was considering first making it available to another
third-party for additional inspection.31 Attorney
Hangley responded “that such an ‘inspection’
threatened to spoliate evidence central to Petitioners’
claims,” and reminded Attorney King that the
Secretary had “requested that the Department of State
be given plenty of notice of any vote on or scheduling of
any inspection.”32
On December 10, Senator Cris Dush, who had
replaced Senator Doug Mastriano as Chair of the
Senate Committee, wrote the County seeking
“[p]ermission to collect the digital data from the
election computers and hardware used by [the County]
in the November 2020 election” as part of the Senate
Committee’s investigation of the Commonwealth’s
election system.33 On December 14, the Secretary
30
Id. (citing Email from Attorney Thomas W. King, III, to Attorney
Michele D. Hangley, 11/29/2021, Ex. B).
31
Id. (citing Letter from Attorney Hangley to Attorney King,
12/7/2021, Ex. C).
32
Id. at 5-6 (quoting Ex. C, supra) (internal quotation marks
omitted).
33
Id., Ex. D (Letter from Senator Dush to Fulton County,
12/10/2021). Senator Dush is now Vice-Chair of the Committee.
The Democratic Senators who sat on the Senate Committee at the
relevant time in 2021 and 2022—Anthony H. Williams, Jay Costa,
App. 15
learned—again from the County’s website rather than
from direct notice—that Fulton County’s
Commissioners had voted the same day to permit the
inspection to go forward the following week.34 Attorney
Hangley learned from Attorney King that the
inspection was scheduled for December 22 and was to
be conducted by Envoy Sage, which the Secretary
characterized as “a recently formed company with no
election experience, no apparent physical presence,
and, at most, two identifiable employees.”35 Attached to
Attorney King’s letter “was a single page, containing
less than a half-page of text,” that described Envoy
Sage’s “protocol” for the inspection.36 The “so-called
‘protocol’ provide[d] no details” and “conclusorily
assert[ed] that Envoy Sage ‘will follow proper
procedure for collection and chain of custody.’”37
Vincent J. Hughes, and Steven J. Santarsiero—filed a brief as
amici curiae supporting the Secretary. They averred that thenChairman Dush “unilaterally selected Envoy Sage . . . as the
vendor to perform this ‘investigation’” “[t]hrough a no-bid process
that was not made public or . . . shared with the Democratic
Senators.” Democratic Senators’ Br. at 2. The Committee is now
chaired by Senator Jarrett Coleman, and the overall composition
of the Committee has changed significantly during the intervening
months.
34
See Emergency Application at 6.
35
Id. at 9 (citing Letter from Attorney King to Attorney Hangley,
12/16/2021, Ex. F).
36
Id. at 10.
37
Id.
App. 16
On December 17, 2021, concerned that the County
would disregard the Secretary’s request that it refrain
from turning its voting equipment over to Envoy Sage,
the Secretary filed an Application for Emergency
Relief. The Secretary’s Application sought to “enjoin
[the County’s] planned ‘inspection’ and require them to
preserve voting equipment and data.”38 Attached to the
application was the affidavit of the Secretary’s expert,
Ryan Macias. Mr. Macias is a voting technology
consultant with more than sixteen years’ experience in
“election technology, security, and policy,” who
previously served as the Acting Director of the United
States Election Assistance Commission, which assesses
the security, accuracy, and accessibility of voting
systems nationwide.39 There, Mr. Macias “managed
multiple voting system applications and testing
campaigns including the Dominion [system] used in
Fulton County.”40
Mr. Macias attested that he reviewed the County’s
plan to grant Envoy Sage access to its voting
equipment, and “took part in a limited inspection of”
that equipment on October 13, 2021, “as part of a
preliminary effort to determine whether any of the
compromised machines could potentially be ‘sanitized’
in a way that would allow their reuse.”41 Mr. Macias
38
Id. at 11 (capitalization normalized).
39
Emergency App., Ex. L (Affidavit of Ryan Macias, 12/17/2021),
at 2-3 ¶5.
40
Id.
41
Id. at 4 ¶6.
App. 17
observed that “[t]he Envoy Sage Protocol is highly
irregular and does not conform to any type of industry
standard for such a document.”42 He found the absence
of proper protocols “particularly alarming” because “the
equipment in question includes electronic data which
can be easily altered—intentionally or unintentionally
—without ever dismantling any hardware or even
touching a keyboard.”43 “[O]nce such data [are] altered,
it may be difficult, if not impossible, to trace things
back to determine the status quo ante, i.e., to see what
data, if any, was altered, and how.”44 Mr. Macias
concluded that the Envoy Sage inspection “could
irrevocably undermine the ability to review, examine,
or analyze the condition of the equipment and data as
it existed prior to Envoy Sage’s activities.”45
In support of the Emergency Application, the
Secretary cited our decision in Pyeritz v.
Commonwealth,46 wherein this Court observed that
“parties to pending and prospective suits, upon an
appropriate showing, may be able to obtain injunctive
relief to preserve evidence,” and pointed to several
“factors for obtaining such relief” drawn from the
United States District Court’s decision in Capricorn
Power Co. v. Siemens Westinghouse Power Corp:
42
Id. at 6 ¶10.
43
Id. at 6 ¶12.
44
Id.
45
Id.
46
32 A.3d 687, 694 (Pa. 2011).
App. 18
(1) the level of concern the court has for the
continuing existence and maintenance of the
integrity of the evidence in question in the
absence of an order directing preservation of the
evidence;
(2) any irreparable harm likely to result to the
party seeking the preservation of evidence
absent an order directing preservation; and
(3) the capability of an individual, entity, or
party to maintain the evidence sought to be
preserved, not only as to the evidence’s original
form, condition or contents, but also the
physical, spatial and financial burdens created
by ordering evidence preservation.47
After analyzing each factor, the Secretary requested
an order preventing the County “from providing any
third party (other than [Dominion]) with access to the
electronic voting machines in Fulton County’s
possession . . . including but not limited to allowing the
inspection by Envoy Sage currently scheduled for
December 22, 2021,” and requiring Petitioners to “take
all necessary steps . . . to preserve those machines, and
any data stored thereon, in a secured and unaltered
state pending further order of the Court.”48
In its response, Fulton County asserted that “[t]he
electronically stored information at issue is the
47
Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220
F.R.D. 429, 433-34 (W.D. Pa. 2004)
48
Emergency App. at 17.
App. 19
primary evidence in this case” and that the voting
equipment had “already been inspected by third-party
representatives of the [Secretary], who is now trying to
prohibit the Petitioners from conducting their own
inspection of the evidence in this case.”49 Thus,
Petitioners implied that they did not reap sufficient
evidence from Wake TSI’s investigation to pursue this
litigation, but rather required a second inspection
specifically to obtain such evidence.
After the parties presented argument before the
Commonwealth Court, President Judge Emerita Mary
Hannah Leavitt postponed the planned inspection to
January 10, 2022, “by which time,” the court
optimistically suggested, “the parties will have
negotiated protocols for said inspection.”50 The parties
did not meet the court’s expectations, and a continuing
49
Petitioners’ Answer to Respondent’s Emergency Application for
an Order Prohibiting Spoliation of Key Evidence, 12/20/2021, at 17
(“Answer to Emergency App.”).
50
Order, 12/21/2021. In the interim, Dominion moved to intervene
to enforce its contract with the County, specifically insofar as it
“expressly prohibits the County” “from ‘[t]ransfer[ring] or copy[ing]
onto any other storage device or hardware or otherwise copy[ing]
the Software in whole or in part except for purposes of system
backup.’” Emergency App. of Dominion Voting Sys., Inc. for Leave
to Intervene for the Limited Purpose of Seeking a Protective
Order, 1/3/2022, at 2, 3 ¶4 (quoting Software License Terms and
Conditions at 2, § 5.1, Ex. B). The lower court denied Dominion’s
application. Dominion appealed this order at 4 MAP 2022. On
March 21, 2022, this Court reversed. Since then, Dominion has
participated in the Secretary’s appeal and these sanction
proceedings consistently with the limited interest it asserted in
support of intervention.
App. 20
pattern of failed negotiations and court-ordered delays
followed. On January 11, the court issued an order that
deferred the planned inspection until January 14 and
directed the parties to “continue negotiating protocols
that will apply to said inspection.”51 The parties again
failed to reach an agreement, so the Secretary filed
another application to prevent the inspection.52
In the Renewed Application, the Secretary again
sought to bar the Envoy Sage inspection, citing various
irregularities and uncertainties in the inspection
proposed as well as concerns about Envoy Sage itself.
The Secretary noted the Secretary’s own inability to
participate in the inspection sufficiently to protect its
interests and to monitor whether and to what extent
the equipment and data are compromised. The
Secretary observed that it had “no reasonable
assurance that the inspection will not spoliate key
evidence in this case.”53 The Secretary further proposed
that, “[t]o the extent any inspection is allowed to
proceed, it should be required to take place as party
discovery in this case, subject to a strict protective
order prohibiting disclosure to any third parties.”54 The
Secretary’s argument and Mr. Macias’s supporting
affidavit relied upon the global proposition that any
51
Commonwealth Court Order, 1/11/2022.
52
Renewed Emergency App. for an Order to Enjoin the ThirdParty Inspection Currently Scheduled for January 14, 2022, From
Proceeding, 1/13/2022 (“Renewed Application”).
53
Id. at 20.
54
Id.
App. 21
further inspection of the EMS risked irrevocably
compromising the evidentiary value of the voting
equipment to the resolution of any of the County’s
claims that might be affected by questions of fact
informed by measurable aspects of the machines.55
In opposing the Renewed Application, Fulton
County abandoned its former assertion that the Envoy
Sage inspection was critical to developing the factual
record in furtherance of the County’s own Petition for
Review, disclaiming for the first time any interest in
the condition or recertification of its voting equipment
—or, strikingly, any data obtained from the Envoy
Sage search that it was fighting to enable. Now, the
County framed its challenge solely as a question of law
testing the authority that the Election Code confers
upon the Secretary to decertify the County’s voting
equipment, to take other remedial actions, and more
generally to issue Directive 1 or similar orders in the
future.56
55
See, e.g., id. at 4 (“Envoy Sage has failed to provide a set of
specific, step-by-step inspection procedures that conform to
industry standards and provide reasonable assurance that the
inspection will not spoliate the evidence.”), 5 (“[T]he planned
inspection pose[s] an obvious and substantial risk of spoliating
important evidence in this case.”), 12-13 (“[I]maging the entire
electronic voting system . . . creates a significant risk of spoliation
. . . .”); see also id., Ex. A (reproducing numerous draft inspection
protocol agreements that appear to reflect the parties’ failed
negotiation, all drafts focusing substantially upon the general risk
of spoliation and chain of custody concerns arising from the
proposed inspection).
56
Compare Answer to Emergency App. at 17 (“The electronically
stored information at[ ]issue is the primary evidence in this case.”)
App. 22
Shortly after 10:00 a.m. on Friday, January 14
—hours before the scheduled inspection—the
Commonwealth Court denied the Secretary’s Renewed
Application and refused to enjoin the inspection. The
court acknowledged Capricorn Power’s three-factor
balancing test, but found that the Secretary failed “to
demonstrate a critical element of each of the three
factors—that the data or state of the System subject to
inspection constitutes evidence in this matter worthy of
protection.”57 The court found that the Secretary had
failed to establish that it or the County would “use any
data obtained from the System as evidence in this
proceeding.”58 The court accepted at face value the
County’s insistence that it raised only a legal challenge
to the Secretary’s decertification authority. Thus, the
court determined that “[t]he inspection, and the data it
may generate or alter, are not evidence in this
matter.”59
with Answer to Renewed App. at 6 (averring that Envoy Sage was
retained solely by, and at the behest of, the Senate Committee;
stating that the County “will not receive any of the data retrieved
from the investigation,” which will be controlled by the Committee;
and bemoaning the burdens that last-minute delays of inspections
(in which it disclaimed any interest) imposed upon Envoy Sage
“and the Committee itself”).
57
Memo. & Order, 1/14/2022, at 3-4 (Leavitt, P.J.E.) (citing Pyeritz,
32 A.3d at 694) (emphasis in original).
58
Id. at 4.
59
Id.
App. 23
D. The Secretary’s Appeal to this Court
and its Emergency Application for a
Stay
That same day, immediately before the 1:00 p.m.
inspection was to begin, the Secretary filed an appeal
to this Court together with an Emergency Application
for a Stay (“Stay Application”), which this author
granted on a temporary basis in order to preserve the
status quo pending review by the full Court. On
January 27, 2022, the full Court extended that stay
pending final resolution of the Secretary’s appeal—
which does not concern the underlying challenge to the
Secretary’s authority, but only the Secretary’s effort,
denied by the Commonwealth Court, to secure Fulton
County’s voting equipment from further inspections
while that underlying challenge is litigated in full.
It is important to the reasoning that follows to
review critical highlights of the Stay Application. In
providing a brief, pointed account of the foregoing
history of this case, the Secretary expressed
incredulity:
[D]espite the consequences of [the County’s]
earlier decision to allow third-party access to
Fulton County’s electronic voting equipment,
and despite the fact that this equipment—in
particular, its status and condition following
Wake TSI’s “examination”—is essential evidence
in this case, [the County] decided to allow yet
another third party to access that equipment and
manipulate its data. And, once again, [the
County] made this decision without providing
advance notice to the Secretary, who is not only
App. 24
Pennsylvania’s “chief election official,” charged
with the statutory responsibility to protect the
security of electronic voting equipment, . . . but
is also a litigant with discovery rights that [the
County is] obligated to respect, see, e.g.,
[Pennsylvania Rule of Professional Conduct] 3.4
(requiring “[f]airness to [o]pposing [p]arty and
[c]ounsel” and prohibiting the “unlawful[]
alter[ation], destr[uction] or conceal[ment of] a
document or other material having potential
evidentiary value”).60
Because our consequent orders granting the
Secretary temporary relief lie at the heart of the
County’s defense to the Sanctions Application, we
reproduce them in full. First, on January 14, 2022, this
author issued a single-Justice temporary order pending
review by the full Court.
AND NOW, this 14th day of January, 2022, [the
Secretary’s] “Emergency Application to Stay
Third-Party Inspection of Electronic Voting
System Scheduled to Begin at 1:00 p.m. on
January 14, 2022” is GRANTED, on a
temporary basis, pending consideration of the
request by the full Court.
IT IS FURTHER ORDERED that the
inspection of Fulton County’s electronic voting
equipment that is currently scheduled to begin
at 1:00 p.m. on January 14, 2022, is hereby
60
Stay App., 1/14/2022, at 5-6 (emphasis and modifications in
original).
App. 25
STAYED and ENJOINED pending further
Order of the Court.
On January 27, the full Court extended the stay until
we could resolve the Secretary’s appeal:
AND NOW, this 27th day of January, 2022,
Respondent-Appellant’s “Emergency Application
to Stay Third-Party Inspection of Electronic
Voting System Scheduled to Begin at 1:00 p.m.
on January 14, 2022” is GRANTED. The singleJustice Order entered on January 14, 2022,
staying the lower court’s ruling and enjoining
the proposed third-party inspection of Fulton
County’s electronic voting equipment, shall
remain in effect pending the disposition of the
above-captioned appeal.
Thus, our January 27 Order adopted and extended the
effect of the January 14 Order throughout the
pendency of the Secretary’s interlocutory appeal.
The proceedings challenging the Secretary’s
decertification authority continued while the
January 27 Order remained in effect and this Court
considered the pending appeal. Meanwhile, on April 12,
2022, at a public meeting, the Fulton County
Commissioners voted unanimously to terminate the
engagement of the attorneys who had represented the
Commissioners to that date in the instant litigation. As
well, a majority of the Fulton County Commissioners
—Commissioner Paula J. Shives voting “nay”—voted to
appoint Pennsylvania Attorney Thomas Carroll and
Michigan Attorney Stefanie Lambert to represent the
App. 26
County moving forward.61 At noon on that same day,
Commissioner Ulsh signed out a key to the locked room
in which the voting equipment at issue was stored.62
On May 17, 2022, this Court issued an order
scheduling oral argument on the appeal for our
September session in Philadelphia. In addition to
reproducing the Secretary’s issues as stated, we
“further directed [the parties] to provide supplemental
briefing and argument concerning whether this Court
has jurisdiction to entertain the instant interlocutory
appeal under Pa.R.A.P. 311(a)(4) . . . and/or
61
Commissioner Shives is a petitioner in this litigation in her
capacity as a member of the Fulton County Commission and its
Board of Elections, not individually. She testified that she voted to
terminate former counsel’s representation in furtherance of her
belief that the County should drop the instant litigation entirely.
See Notes of Testimony (“N.T.”), 11/9/2022, at 282-84; see also id.
at 284 (“I’m not in favor of these lawsuits and I just think having
a special counsel just keeps them going.”).
62
See Secretary’s Application to Admit into Evidence the Key
Access Log Belatedly Produced by Petitioners, 11/18/2022, Ex. 1.
The Secretary asked the Special Master to admit the access
log—which was the subject of continued, initially unsuccessful
efforts to produce as directed by the Master—into the record in an
Application for Relief filed on November 18, well after the
conclusion of the Master’s proceedings, and the same day the
Special Master filed her Report. The County opposed that
application the same day, asserting, most intelligibly, a claim that
the access log somehow violated someone’s Fifth Amendment
rights. The Special Master granted the application. We find no
merit to the County’s Fifth Amendment argument regarding the
log, which it did not raise at any of the several times during the
evidentiary hearings when the Secretary asked the Master to
direct the County to produce the log. Therefore, we adopt the
Special Master’s order admitting the exhibit.
App. 27
Pa.R.A.P. 313.”63 On the same day, this Court’s
Prothonotary sent correspondence to the attorneys of
record indicating that the Secretary’s supplemental
brief would be due thirty days after the date of the
Order, and that Fulton County’s supplemental brief
would be due thirty days after service of the Secretary’s
brief.64
In the wake of our May 17, 2022 Order, Fulton
County’s (and its attorneys’) pattern of neglect and
non-compliance emerged. The Secretary timely filed
and served a supplemental brief concerning this
Court’s appellate jurisdiction on June 16, 2022, which
established July 18, 2022 as the due date for Fulton
63
Rule 311(a)(4) allows an interlocutory appeal as of right of an
order denying an injunction, and Rule 313 allows an interlocutory
appeal as of right of a collateral order. A collateral order is one
that is “separable from and collateral to the main cause of action
where the right involved is too important to be denied review and
the question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.” Rae
v. Pa. Funeral Dirs. Ass’n, 977 A.2d 1121, 1125 (Pa. 2009) (quoting
Pa.R.A.P. 313). Although this Court previously noted probable
jurisdiction, we nonetheless recognized (a) that the appeal
implicated a nascent question of the nature of the relief that the
Secretary sought (i.e., injunctive versus discovery-related), and
(b) that the distinction might determine our appellate jurisdiction.
We have never decided the jurisdictional question. As explained at
length below we impose a sanction that moots the underlying
appeal and with it the jurisdictional question.
64
As of that date, the attorneys who had been removed during the
April 12 Commission meeting had not withdrawn their
appearances in this Court. Attorney Carroll, who had been
appointed special counsel on April 12, also had yet to enter his
appearance.
App. 28
County’s responsive brief.65 On June 28, 2022, while
the appeal was pending, and while Fulton County to all
reasonable appearances was precluded from permitting
a third-party inspection of the County’s voting
equipment, Attorney Carroll entered his appearance in
the underlying litigation in the Commonwealth Court.
Attorney Carroll did not move for the admission pro
hac vice of Attorney Lambert, who had been appointed
with him.
The Commonwealth Court having denied the
Secretary’s preliminary objection to Count III of the
Petition for Review on May 23, 2022, the Secretary had
filed her Answer and New Matter to Fulton County’s
Petition for Review on June 22, 2022. Consequently, by
rule, Fulton County’s responsive pleading in the
Commonwealth Court was due on or before July 12.
Despite the fact that Attorney Carroll entered his
appearance on June 28, 2022, he waited until 5:27 p.m.
on the date of the July 12 deadline to file a motion
seeking to extend the time for a response until July 18.
Therein, Attorney Carroll noted his June 28 entry of
appearance and cited his status as “a solo practitioner
. . . newly undertaking representation of Petitioners.”66
He did not mention that he had been appointed cospecial counsel for the County in a public meeting over
three months earlier. He also offered no explanation for
failing to seek an extension earlier in the two weeks
65
The thirtieth day after service fell on a Saturday, extending the
County’s deadline to the following Monday.
66
Motion to Extend Time to File Responsive Pleading, 7/12/2022,
at 1.
App. 29
between his entry of appearance and the deadline for
Fulton County’s responsive pleading. The
Commonwealth Court granted the motion, later
extending the deadline until July 26, 2022.
On July 5, 2022, this Court’s Prothonotary sent
correspondence to the most recent counsel of record for
Fulton County, James M. Stein, James M. Stein, Jr.,
and Douglas Joseph Steinhardt, advising them that
oral argument had been scheduled for September 14,
2022, in Philadelphia. The standard notice directed
counsel to return an acknowledgment of receipt and
advised that the return would confirm that the
responding attorney or substitute counsel would appear
as specified. It added that requests for continuances
“are disfavored,” “must be brought at the earliest
opportunity,” shall be verified, and shall “set forth in
detail the unforeseen circumstances necessitating a
continuance.”67 The Secretary promptly returned an
acknowledgment. Fulton County did not.
On July 20, 2022, our Prothonotary sent another
letter to Attorneys Stein68 and Steinhardt. The letter
67
68
Notice of Date and Time of Argument, 7/5/2022.
We continued to transmit communications to Attorneys James
M. Stein and Douglas Steinhardt because, as reflected in the public
dockets and corroborated by our consultation of the relevant public
filings, Attorneys Stein and Steinhardt continued to be listed as
counsel for the County in this case. Attorney Stein remains cocounsel of record as of this writing, both in this Court and in the
Commonwealth Court in the underlying litigation. Attorney
Steinhardt remained counsel of record through the summer, finally
withdrawing his appearance before this Court on October 26, 2022,
about a week after the Secretary filed the Sanctions Application.
App. 30
referred to our May 17, 2022 order scheduling
argument and directing submission of a supplemental
brief, and it noted that Fulton County’s jurisdictional
brief was overdue. The letter directed the County to
“file for an extension of time Nunc Pro Tunc together
with [its] brief on or before July 25, 2022.”
On July 25, this Court sent additional notices to
Attorneys Stein and Steinhardt, again soliciting their
acknowledgment of the argument notice. This was
followed on July 26 by still more correspondence
“remind[ing]” counsel of their obligation to respond to
this Court’s Orders and notices and directing counsel’s
attention to the aforesaid July 5 and July 25 notices.
At 7:10 p.m. on July 26, 2022, Attorney Carroll
belatedly entered his appearance in this Court. At
7:51 p.m. on that date, he filed a “Motion Nunc Pro
Tunc for Leave to File Appellees’ Supplemental Brief.”
Not only was this motion filed after the July 25
deadline we prescribed, but it also did not include the
supplemental brief that this Court directed the County
to include with the motion. By way of an explanation
for Fulton County’s continuing noncompliance,
Attorney Carroll offered only this: “Undersigned
Even if any of these attorneys had withdrawn before a summer’s
worth of non-responsiveness to this Court’s notices, it was
incumbent upon them to forward our communications to the
County or to Attorney Carroll. As well, Attorney Carroll had a
professional obligation to confer with the County’s former counsel
promptly upon his retention to whatever extent was necessary to
ensure his competent representation of the County. The
consequences of any failures in this regard are attributable to both
Fulton County and Attorney Carroll.
App. 31
counsel, having just appeared in this case, for good
cause, hereby moves the Court to allow for an extension
of the filing of [the County’s] supplemental brief to
Monday, August 8, 2022.” August 8 was fourteen days
after our already-extended deadline for the filing.
Attorney Carroll offered nothing to substantiate “good
cause” and did not qualify his “just having appeared”
comment with an acknowledgment of his April 12
appointment as special counsel specifically for this
litigation—or, for that matter, his appearance and
active participation in the underlying litigation in the
Commonwealth Court approximately a month before
entering his appearance in this Court.
On July 27, 2022, this Court sent another argument
notice and request for acknowledgment, this time
directly to Attorney Carroll. On July 29, we entered an
Order granting Attorney Carroll’s request for an
extension until August 8, 2022, to file the County’s
supplemental brief. But August 8 came and went. This
Court received no supplemental brief; the County never
filed one. On August 10, 2022, this Court’s
Prothonotary sent yet another letter to Attorney
Carroll. The letter noted that the Court still had not
received an acknowledgment of the argument notice.
The letter also informed Attorney Carroll that, because
he had failed to file a jurisdictional brief, even after the
additional two-week extension that this Court had
granted, Fulton County would not be permitted to
present oral argument on jurisdiction. Finally, on
August 11, Attorney Carroll returned his
acknowledgment of the oral argument notice.
App. 32
Oral argument was scheduled for Wednesday
September 14, 2022. On the morning of Monday,
September 12, 2022, Attorney Carroll filed a “Motion to
Adjourn Oral Argument,” asserting emergent personal
reasons that allegedly prevented him from “prepar[ing]
for oral argument . . . and/or associat[ing] other counsel
as a substitute this close to the time for the
presentation of oral argument.”69 Attorney Carroll’s
Motion to Adjourn Oral Argument was not verified, as
this Court’s argument notice expressly requires of
those seeking a continuance. Attorney Carroll averred
that the Secretary did not accede to the request,
preferring that this Court decide the collateral appeal
on the parties’ briefs. Failing that, the Secretary asked
that argument be rescheduled for this Court’s
November session in Harrisburg. This Court granted
the extension in a September 13 Order and directed
that the case be heard in Pittsburgh during our
October session. We noted: “Counsel SHALL appear
for that scheduled argument, and no further
69
Attorney Carroll had not yet informed this Court that Attorney
Lambert was his co-counsel, nor had he sought her admission pro
hac vice below or in this Court. Although the rules governing pro
hac vice representation direct that the sponsoring attorney must
be in attendance at all court proceedings in connection with the
representation, that requirement is qualified by a carve-out when
sponsoring counsel is “ e x c u s e d b y court.” See
Pa.R.Civ.P. 1012.1(d)(1). This is not to say that we would have
granted such a request. But, had Attorney Lambert been admitted
pro hac vice, it would have given Attorney Carroll a good-faith
alternative to filing a disfavored, last-minute request for a
continuance reflecting no contingency planning.
App. 33
continuance requests will be entertained.”70 Our
Prothonotary scheduled argument for October 26, 2022.
II.
The Speckin Forensics Inspection of the
Voting Equipment and the Secretary’s
Application for Contempt and Sanctions
Shortly before the rescheduled argument, the
Secretary redirected our focus to a pressing matter. On
October 18, 2022, the Secretary filed the Sanctions
Application before us. The Secretary informed this
Court that, on July 13 and 14, 2022, Fulton County
allowed Speckin to inspect the voting equipment at
issue in this litigation, in alleged defiance of our
pending stay order.
Neither the Commissioners’ intent, nor the fact,
nature, and scope of this inspection, were addressed in
a public proceeding by the Fulton County Commission
or Election Board, nor was the inspection approved by
a formal vote of either body. The County also did not
notify the Secretary or Dominion, both of whom
previously had claimed the right to notice of any
inspection—the Secretary, as a function of her
authority over the administration of elections and
Dominion, based upon the terms of its contract with
Fulton County. Even Commissioner Shives did not
learn until September 2022 that the July inspection
was planned or had occurred.
So closely held was the news of the planned
inspection that it only came to public light (indirectly)
when Fulton County filed a separate breach of contract
70
Emphasis in original.
App. 34
action against Dominion in the Court of Common Pleas
of Fulton County on September 21, 2022, just seven
days after the September 14, 2022 oral argument that
Attorney Carroll averred he could not attend.71 Fulton
County’s complaint relied principally upon Speckin’s
September 15, 2022 report of its findings from the
inspection, which the County attached. The County
explained that the Speckin report was based upon
analyses “performed on six hard drives in Fulton
County” in July of 2022.72 Speckin described a highly
intrusive examination of the County’s voting
equipment, which the County does not dispute.
Two events followed the filing of the Secretary’s
Sanctions Application. First, this Court entered an
order appointing Commonwealth Court President
Judge Cohn Jubelirer as Special Master to conduct the
evidentiary proceedings necessary to develop a record
sufficient to address the Secretary’s allegations and the
71
Dominion removed the contract action to the United States
District Court for the Middle District of Pennsylvania, where it
remains as of this writing. Separately, on September 1, 2022,
Fulton County appealed, also to the Fulton County Court of
Common Pleas, an August 2, 2022 ruling of the Pennsylvania
Office of Open Records (“OOR”) that granted Dominion relief from
Fulton County’s categorical denial of certain requests under
Pennsylvania’s Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101, et
seq. Notably, the OOR decision identified Carroll as attorney of
record. Evidently he actively undertook that matter, like the
underlying litigation, well before he entered his appearance in this
Court.
72
Sanctions App., Ex. A, Complaint at 17 ¶67. It is undisputed
that the specific equipment Speckin inspected is the same
equipment to which this Court’s stay order applied.
App. 35
relief the Secretary sought. We directed the Master to
provide a report proposing findings of fact and
conclusions of law on or before November 18, 2022. In
that October 21, 2022 Order, this Court directed the
Special Master (1) to determine whether the
Secretary’s application sounded in civil or criminal
contempt; (2) to “afford the parties such process as is
due in connection with that determination”; and (3) to
make separate determinations as to each form of relief
the Secretary seeks, including the imposition of
sanctions, the award of counsel fees, and dismissal of
Fulton County’s underlying and ongoing challenge to
the Secretary’s authority to decertify Fulton County’s
voting machines.
In a second Order issued the same day, this Court
directed that this Court would not hear oral argument
on the pending appeal of the Commonwealth Court’s
denial of a protective order as scheduled. Instead, we
would rule on the appeal based upon the parties’ briefs.
III.
The Special Master Proceedings
A. Discovery
On October 24, 2022, the Special Master issued an
initial order (1) directing Fulton County to file an
Answer to the Secretary’s Sanctions Application,
(2) directing the parties to file memoranda of law
concerning the sanctions sought by the Secretary, and
(3) scheduling a status conference for October 27.73 At
73
As a technical matter, inasmuch as the Special Master acts on
this Court’s behalf, all filings are in a sense to this Court.
Nonetheless, the Special Master’s Orders and the parties’ filings
App. 36
the October 27 conference, the Special Master and the
parties agreed as a threshold matter that the
Secretary’s assertion of contempt was civil in nature.
This resolved the first issue that this Court directed
the Special Master to address, and it is a determination
that the parties did not object to then or now.74
directed to the Special Master’s consideration have been docketed
with the underlying litigation at 277 MD 2021, while filings
soliciting the Justices’ direct attention have been filed at this
Court’s appellate docket at 3 MAP 2022, J-46-2022. Accordingly,
a full grasp of these proceedings is best gained through
consultation of both records.
74
Attorney Carroll agreed that the Secretary’s allegations
implicate civil rather than criminal contempt. See Status
Conference Transcript, 10/27/2022, at 3-4 (Special Master: “There
is agreement that to the extent [she] would recommend any relief,
it would not be in the nature of criminal sanctions[?]” Attorney
Wiygul for the Secretary: “[W]e agree that this would be a civil
contempt proceeding.” Attorney Carroll: “I would agree with
that.”). Attorney Carroll nonetheless presented this as an open
question in later filings. See Fulton County’s Emergency
Application for a Preliminary Injunction to Enjoin Discovery in
Special Master Proceedings and to Compel Legal Rulings
Preceding Said Discovery, 11/1/2022, at 18 (insisting that the
“nature of the contempt sought by the Secretary must be decided”
before discovery could proceed); compare Fulton County’s
Emergency Application for a Preliminary Injunction to Enjoin
Depositions Scheduled for November 7, 2022 and to Have Special
Master Rule on Fulton County’s Legal Issues Raised in Its Motion
Objecting to Discovery, 11/7/2022, at 6 (noting that the Special
Master had “concluded” that the Secretary sought civil contempt),
with id. at 24 (indicating that among the “predicate legal issues”
yet to be decided is “whether the contempt proceedings are ‘civil’
or ‘criminal’ in nature”).
App. 37
The Secretary proposed “targeted” discovery
including depositions of County Commissioners Ulsh,
Bunch, and Shives, and the disclosure of
communications and documents in which the parties
discussed the Speckin inspection and this Court’s
protective order. The Secretary explained that it sought
these items so that it could determine who instigated
and decided to conduct the inspection, who engaged
and paid Speckin, and assess the relevant individuals’
understandings of and intentions regarding our order.
The County opposed the Secretary’s proposal
categorically. Attorney Carroll maintained that no
discovery could occur until the Special Master ruled
upon the scope of this Court’s protective order, because
Fulton County contended that its conduct fell entirely
outside our protective order’s scope, rendering
Speckin’s inspection permissible.75 Consequently, the
County asserted, contempt would not lie as a matter of
law. Fulton County also maintained that any discovery
would impair its litigation interests in the County’s
pending breach of contract action against Dominion as
well as its RTKL appeal.
The Special Master rejected Fulton County’s
arguments and ruled that discovery would proceed. In
her October 27, 2022 Order, the Special Master
directed the parties to provide a joint scheduling order
suggesting deadlines for discovery—or, if no agreement
75
See generally Answer to Appellant’s Application for an Order
Holding Appellees in Contempt and Imposing Sanctions,
10/26/2022 (docketed in the Commonwealth Court at 277 MD
2021).
App. 38
could be reached, separate proposed orders—by noon
on October 28, 2022. The Special Master added that no
continuance would be granted and no late submission
would be considered.
The parties failed to reach an agreement. After
receiving the parties’ proposals, the Special Master
issued an order on October 28, 2022, which functioned
both as a rule to show cause under Pa.R.Civ.P. 206.7
why the Secretary’s Sanction Application should not be
granted and as a detailed discovery and scheduling
order for the proceedings. The Master noted that, while
the Secretary submitted a proposed schedule, the
County instead dedicated its submission to arguing
(again) that it could not engage in discovery absent the
aforesaid “predicate legal ruling” concerning this
Court’s stay, and the County further stated “global
objections” to discovery based upon the sweeping
application of various alleged privileges.76 The Special
Master declined to grant relief on either theory, but, in
issuing the rule, invited Fulton County to assert any
defenses to the contempt allegations.
The balance of the order directed the parties to
serve written discovery requests by noon on October 31,
and to respond, produce, or object no later than noon on
November 2. The order further specified that all
privilege-based objections must be accompanied by a
detailed privilege log and cautioned that any untimely
objections would be waived and disregarded.
Accommodating Attorney Carroll’s scheduled vacation
the week beginning on October 30, and without
76
See SMR at 20.
App. 39
objection by the parties, the Special Master scheduled
the evidentiary hearing for November 9 and 10.
Importantly, the Special Master admonished the
parties as follows: “Given the existing time constraints
in this matter, no extensions or continuances shall be
granted and no late submissions will be considered by
the Court. In the event counsel for any party cannot
meet the deadlines set forth above, the Court expects
the parties to retain other counsel.”77
As the hearings approached, the County repeatedly
confounded the Special Master’s efforts to conduct
these proceedings in an orderly and efficient manner
with serial interruptions, delays, and even what can
only be described as defiance. The Secretary timely
served discovery requests on October 31. But at
approximately 10:30 p.m. on November 1—four days
after the Master issued her rule and scheduling order,
and approximately four business hours before
responses and objections were due—Fulton County
filed directly to this Court (rather than the Special
Master) an “Emergency Application for a Preliminary
Injunction to Enjoin Discovery in Special Master
Proceedings and to Compel Legal Rulings Preceding
Said Discovery” (“First Application to Enjoin”).
Therein, Fulton County contended that there was no
genuine dispute of a material fact requiring discovery
because the County conceded that the Speckin
inspection had occurred. This argument wholly
disregarded the fact that the Secretary’s contempt
allegations and other stated bases for the imposition of
77
Order, 10/28/2022, at 4.
App. 40
sanctions entail state-of-mind determinations that are
not informed by concessions of the occurrence or nonoccurrence of events alone. The County has never really
acknowledged, much less offered a discernible defense
regarding, these critical state-of-mind factors.
Second, Fulton County argued at great length that
discovery before resolution of the much-belabored
“predicate legal rulings” would prejudice the County by
forcing it to disclose information that might not serve
its interests in the parallel breach of contract and
RTKL actions against Dominion. Relatedly, the County
vaguely invoked various RTKL protections without
explaining what principle or authority dictated that
RTKL protections may serve as a discovery bar in
substantially unrelated litigation.78 Finally, Fulton
County argued—again, vaguely—that disclosures
which conformed to the Secretary’s request would
“violate the individual constitutional rights of the
proposed deponents and other potential witnesses.”79
Conspicuous by its absence from the First
Application to Enjoin was any developed argument as
to why these various objections could not have been
raised individually to the Secretary’s detailed proposed
deposition questions, interrogatories, and requests for
78
The only overlap of which we are aware lies in the fact that
certain RTKL privileges are materially the same as privileges
generally enjoyed in litigation. This is not a consequence of any
connection, but is rather a coincidence of certain protections that
are applied more or less universally for their own sakes such as the
limited attorney-client and work-product privileges.
79
First Application to Enjoin at 44.
App. 41
admission and production as directed by the Special
Master. This omission has persisted throughout these
proceedings. The County does not maintain that the
time afforded was insufficient. The County does not
argue that the Secretary’s requests contradicted the
Special Master’s order, which bore the hallmarks and
expectations of traditional discovery practice but for
the compressed schedule. Reading the County’s First
Application to Enjoin in isolation, one might think that
the County was afforded no opportunity to protect its
interests. In fact, it was denied none of the protections
enjoyed by any litigant subject to discovery. But rather
than crafting privilege-based objections to specific
requests and questions and providing a privilege log as
directed by the Special Master, the County wagered its
limited time on a long-winded cri de coeur insisting
that this Court excuse it from the fact-finding process
that this Court itself had prescribed.
We denied relief in a November 2, 2022 Order,
referring the question to the Special Master. We
underscored that our order had no prejudicial effect on
“Petitioner-Appellee’s rights to seek discovery-related
relief before the Special Master in due course and in
full conformity with any prior or future orders or
directives issued by the Special Master.”80 The County’s
last-minute application and our consideration of same
inevitably had scuppered the Special Master’s carefully
crafted schedule. But rather than hold Fulton County
to the losing side of its own gamble, we extended the
deadlines for responses and objections by twenty-four
hours—an extension to which the Special Master added
80
Emphasis added.
App. 42
eight hours of grace time in a subsequent order. Still,
the County again declined its renewed opportunity to
engage in good-faith discovery.
On November 3, 2022, the Secretary filed an
“Emergency Application to Compel the Depositions of
Ulsh, Bunch, and Shives on November 4 and 5, 2022.”
The Secretary asserted that, on October 31, it served
upon Attorney Carroll proposed deposition questions
and notices of remote video depositions for Ulsh,
Bunch, and Shives for specific times on November 4
and 5, 2022. The Secretary maintained that its
application was necessary because the County had
engaged in a pattern of obstruction that invited
skepticism about its intent to comply. On November 4,
in an “Application for Discovery Sanctions and
Incorporated Memorandum of Law,” the Secretary
informed the Master that, although the County had
served responses and objections to the Secretary’s
timely served discovery requests, the responses
comprised an eleven-page standard objection asserting
the now-familiar generic privileges and objections
followed by responses to virtually all specific requests
with another form response that asserted that the
requests—all of them, apparently—were “absurdly
onerous,” overbroad, and burdensome, without
explaining why.81 In so many words, the County simply
repeated—despite this Court’s and the Special Master’s
repeated refusal to credit the claim—that no discovery
at all was relevant to sanctions because it conceded
that the Speckin inspection had occurred.
81
App. for Discovery Sanctions, 11/4/2022, at 10 (quoting the
County’s Response to Requests for Production at 9).
App. 43
Rather than compel the depositions, the Special
Master deferred ruling and again extended the
deadline for the County to respond and/or object to the
proposed deposition questions until 8:00 p.m. on
November 3. The Master also scheduled a status
conference for November 4. Again the Master rejected
the County’s contention that it was entitled to a
threshold ruling on the scope of this Court’s stay order
before discovery could proceed. On November 4, before
the time appointed for the status conference, the
Secretary filed a new “Application for Discovery
Sanctions” asserting the same unrectified deficiencies
in the County’s responses. The Secretary proposed that
the court deem admitted any unresponded-to requests
for admission and grant the Secretary certain findings
of fact.82
82
See Pa.R.Civ.P. 4014 (providing that a request for admission is
admitted unless the respondent “serves upon the party requesting
the admission an answer verified by the party or an objection,
signed by the party or by the party’s attorney,” and that, “[i]f the
court determines that an answer does not comply with the
requirements of this rule, it may order . . . that the matter is
admitted”); Pa.R.Civ.P. 4006 (same with respect to written
interrogatories); see also Special Master’s Order, 11/3/2022, at 3 ¶4
(citing prior orders and reiterating that “[f]ailure to timely return
objections to discovery requests to the other parties will result in
waiver of any such objections, and no untimely discovery-related
motions will be considered”); Pa.R.Civ.P. 4019(a)(2) (“Sanctions”)
(specifying that a party who fails to provide sufficient answers or
objections to discovery “may not be excused on the ground that the
discovery sought is objectionable unless the party failing to act has
filed an appropriate objection or has applied for a protective
order”).
App. 44
Meanwhile, the County filed its pre-conference
“Motion for Predicate Legal Rulings and to Exclude
Certain Discovery Requested by the Secretary,” the
title signaling its redundant substance. Undeterred by
the Special Master’s three prior rejections of the
argument as well as this Court’s refusal to consider the
matter, the County again insisted that discovery could
not proceed until the Master determined the scope of
the stay order. And in case the Master again was
unpersuaded, the County asked the Master to allow
discovery subject to her “categorical determination as
to Fulton County’s rights given that there remains
underlying litigation, additional litigation by and
between Fulton County and Dominion, and Fulton
County’s general rights and privileges under law,
including the RTKL.” This “alternative” simply dressed
the same old argument in slightly different garb. Here
again the County insisted upon a “predicate” ruling.83
The November 4 status conference proceeded as
scheduled. Again, the Master denied the County’s
redundant objections for familiar reasons. Reminding
the County that a party objecting to discovery bears the
burden of establishing non-discoverability,84 the Special
83
Attorney Carroll’s temerity was on full display during the
conference that immediately followed, when he asked (again) “for
a motion for a stepped approach,” in which discovery would occur
only after the predicate rulings upon which he insisted, and then
declared that the County “deserve[d] legal rulings before we agree
to this.” N.T., 11/4/2022, at 10-11 (emphasis added).
84
See, e.g., Fisher v. Erie Ins. Exch., 258 A.3d 451, 461 (Pa. Super.
2021) (“The party invoking a privilege must initially set forth facts
showing that the privilege has been properly invoked.” (cleaned
App. 45
Master rejected the County’s objections for want of
particularity as well as the County’s dubious invocation
of unspecified “rights” associated with the effect of
discovery in this proceeding upon its pending contract
suit and RTKL appeal against Dominion.85 The Master
directed that the depositions for Ulsh, Bunch, and
Shives be rescheduled for November 7 or 8, 2022. The
Master also declined to rule on the Secretary’s pending
application(s) for discovery sanctions until after the
evidentiary hearing.
At the November 4 conference, Attorney Carroll
asserted for the first time that Commissioner Ulsh
would be unable to attend the evidentiary hearing on
November 9 and 10 because he had a previously
scheduled (and previously undisclosed) vacation
up)). For the same proposition, the Special Master cited Red Vision
Systems, Inc. v. Nat. Real Estate Info. Servs., L.P., 108 A.3d 54, 62
(Pa. Super. 2015).
85
We stated the operative principle in a case involving the clergy
privilege, and that principle is equally applicable to any invocation
of an evidentiary privilege or other basis for withholding evidence:
Exceptions to the demand for every man’s evidence are not
lightly created nor expansively construed, for they are in
derogation of the search for truth. Thus, courts should
accept testimonial privileges only to the very limited
extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational
means for ascertaining the truth.
Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997) (cleaned
up). This principle will not countenance, and does not allow, the
County’s steadfast refusal to cooperate with discovery requests and
its persistent invocation of inapplicable privileges.
App. 46
requiring him to depart on Election Day, November 8,
2022, immediately after the election ended.86 During
the hearing, the Master reminded Attorney Carroll
that the hearing was scheduled to accommodate his
scheduled vacation per the October 27 hearing, and in
the order that followed, the Master “caution[ed] that
[the Master] expects all Commissioners to comply with
properly served notices to attend.”87
The Secretary again served Attorney Carroll with
the deposition notices, but the effort proved futile. At
7:54 a.m. on November 7, shortly before the first
scheduled deposition at 9:30 a.m., Fulton County filed
directly to the Justices of this Court a sixty-page
“Emergency Application for a Preliminary Injunction to
Enjoin Depositions Scheduled for November 7, 2022
and to Have Special Master Rule on Fulton County’s
Legal Issues Raised in Its Motion Objecting to
Discovery.” With one modest exception, the Application
was materially indistinguishable88 from its November 1
request to this Court to block discovery.
86
See N.T., 11/4/2022, at 26-27.
87
Special Master Order, 11/4/2022, at 5 n.3. As noted, ever since
October 24, 2022, the evidentiary hearing had been scheduled
(without objection) for November 9 and 10, and was extended a
week past the Special Master’s initial preference in order
specifically to accommodate Attorney Carroll’s own scheduled
vacation.
88
While we decline to compare the applications word by word, the
two filings’ tables of contents are word-for-word identical but for
the deletion from the latter application of the former application’s
argument section 2.a.
App. 47
The lone new contention appeared only in the first
paragraph of the Introduction, where the County now
asserted that no Commissioners could appear for their
depositions that day because the preceding Friday
(November 4) the Secretary “ha[d] notified counties
that there ha[d] been a system-wide outage and
additional failures in their election management, and
in the equipment systems databases that the Secretary
uses for elections to occur smoothly”—specifically, the
Statewide Uniform Registry of Electors (“SURE”)
system, which among other things enables counties to
generate poll books to be used during the election.89
The Secretary appended to its response to the
County’s Application a declaration under penalties for
unsworn falsifications90 by Jonathan Marks, the
Deputy Secretary for Elections and Commissions at the
Department of State. Deputy Secretary Marks averred
that the outage occurred at 1:00 p.m. on Friday,
November 4, but that it did not affect the County’s
ability “to record returned ballots and process
applications.”91 He acknowledged that the outage
89
County’s Emergency Application for a Preliminary Injunction,
11/7/2022, at 4; see id., Ex. F. The November 4 correspondence
from the Secretary described an outage “impacting various services
of” the SURE system. It did not direct any action by County
Boards of Election, and Attorney Carroll made no representations
as to whether the problem had been solved during the intervening
weekend, leaving the impression that the problem persisted into
the day he raised it as a basis not to attend depositions.
90
91
See 18 Pa.C.S. § 4904
Answer in Opposition to County’s Emergency Application, Ex. F
at 2 ¶5.
App. 48
impeded the County’s “ability to generate certain
reports and poll books,” but asserted that all issues
were resolved by 7:20 a.m. on Saturday, November 5.92
He also noted that, “[a]fter initial communications as
to when the outage would be resolved, Fulton County
printed its poll books on November 5,” and the
Department received no further communications from
the County.93 Thus, the problem that Attorney Carroll
cited to support extraordinary relief he had previously
sought by other means fully was resolved well within
twenty-four hours of its occurrence—and County
elections officials had utilized the briefly disabled
functionality two days before Attorney Carroll filed a
document citing the issue to relieve his clients of their
obligations to appear.
Later the same day—but after the time the first
deposition was scheduled to begin—this Court denied
the County’s Application per curiam without comment.
At 8:05 a.m., ten minutes after filing the aforesaid
Application with this Court, Attorney Carroll informed
counsel for the Secretary that his clients would not
appear for the noticed depositions or for the evidentiary
hearing scheduled for November 9. The Secretary
immediately requested that the Master hold Fulton
County in contempt and direct the arrest of
Commissioners Ulsh and Bunch to ensure their
appearances at the November 9 hearing. The Special
Master again held the Secretary’s request for sanctions
92
Id.
93
Id., Ex. F at 2 ¶6 (emphasis added).
App. 49
in abeyance but made clear that all parties who had
been noticed must appear.
Attorney Carroll remained undeterred. He
responded by filing a “Motion and/or Reply to
Secretary’s Motion and to Suspend Proceedings Against
County Commissioners During Election Under
Pennsylvania Law and to Stay Pending Application for
Injunction in the Supreme Court.”94 Attorney Carroll
now contended that the Commissioners could not
appear at the November 9 hearing because such
appearance would impede them from executing their
official duties as members of the Election Board the
day after the election.
This position was nothing short of astounding. First,
of course, Attorney Carroll already had agreed to the
November 9 hearing, scheduled then for his benefit,
and presumably when he was well aware that the
election fell on November 8 and was more or less aware
of the Commissioners’ obligations as members of the
Board of Elections. Second, he had informed the Court
on November 4 that Commissioner Ulsh could not
attend the November 9 hearing because he had
scheduled a vacation that would begin on Election Day
immediately after the election was completed. In effect,
Attorney Carroll maintained that the November 9
hearing would interfere with duties on November 9,
but Commissioner Ulsh could discharge those same
duties both on Election Day itself and on the day of the
94
The allusion to an application for injunction evidently referred
to Attorney Carroll’s intention to seek such relief from the United
States Supreme Court. He never filed such an application.
App. 50
hearing from his vacation. Finally, in between these
brackets, Attorney Carroll sought to relieve the
Commissioners from their obligations to appear for
their depositions, citing a problem that no longer
existed.
The Special Master denied relief on November 8 and
(again) directed all noticed parties to appear for the
next day’s hearing. But by then, it was too late to
depose the witnesses. Attorney Carroll had achieved
his clear objective to deny the Secretary the
opportunity to depose his clients by any means, no
matter how spurious.
B. The Hearings and the Parties’
Proposed Findings of Fact and
Conclusions of Law
Around 1:00 a.m. on the morning of the November 9
hearing, Attorney Carroll for the first time filed a
motion seeking pro hac vice admission of Attorney
Lambert, who, like Attorney Carroll, had represented
the County since April 12, 2022. The Special Master
denied the motion, citing Attorney Carroll’s failure to
file it three days before Attorney Lambert’s intended
appearance as required by the Bar Admission Rules,95
and because the motion lacked the mandatory payment
certification from the IOLTA Board.96
While these deficiencies alone supported the Special
Master’s rejection of the motion, the Secretary
95
See Pa.B.A.R. 301(b)(2)(ii).
96
Pa.R.Civ.P. 1012.1(b)(1).
App. 51
identified additional problems that Attorneys Carroll
and Lambert have never disputed or fully rectified. For
example, Attorney Lambert failed to disclose the
pendency of disciplinary proceedings in Michigan
arising from litigation conduct in a Michigan federal
case that also led to a sanctions order making her
jointly and severally liable with co-counsel for over
$170,000 in counsel fees in 2020 election-related
litigation deemed frivolous and vexatious.97 The court
in that case also referred Attorney Lambert and cocounsel to the Michigan Attorney Grievance
Commission and the disciplinary authority for any
other jurisdictions where counsel was admitted “for
investigation and possible suspension or disbarment
and ordered [counsel] to complete at least twelve
(12) hours of continuing legal education in the subjects
of pleading standards . . . and election law.”98 Attorney
Lambert eventually provided proof of good standing in
the Michigan bar, but never denied the pending
disciplinary complaint.99 But neither she nor Attorney
Carroll has ever acknowledged that Rule 1012.1 is not
97
See King v. Whitmer, 2:20-cv-13134, 2021 WL 5711102 (E.D.
Mich. Dec. 2, 2021).
98
99
Id. at *1 n.1.
Attorney Lambert noted that her appeal of the sanctions award
is pending before the United States Court of Appeals for the Sixth
Circuit. As of this writing, the last event in that appeal appears to
have been oral argument, held on December 8, 2022.
App. 52
satisfied by proof of good standing, even when
challenged on it before and by the Special Master.100
The Special Master nonetheless allowed Attorney
Lambert to remain in the courtroom as the County’s
chosen counsel, explaining that, “although [Attorney
Lambert] wouldn’t be able to question witnesses or
speak to the court, [she] could assist Attorney Carroll,
confer with him and assist him.”101 Attorney Lambert
never was, and never has been, admitted pro hac vice
in this proceeding or the underlying litigation.102
The November 9 hearing comprised the testimony
of Commissioners Ulsh and Shives. The entirety of
November 10 was spent on Mr. Macias’ testimony as to
the materially undisputed potentially spoliative effects
of the third-party inspections of the County’s voting
equipment. Commissioner Bunch ultimately testified
100
See Pa.R.Civ.P. 1012.1(c)(1)(ii) (requiring the applicant to
disclose “any disciplinary proceedings” in any jurisdiction and to
detail “the circumstances under which the disciplinary action has
been brought”).
101
N.T., 11/9/2022, at 28-29; see SMR at 38. Later, the Secretary
would challenge the degree of Attorney Lambert’s participation in
the proceedings, indicating on several occasions that Attorney
Lambert was persistently and audibly dictating questions and
arguments directly into Attorney Carroll’s ear. See SMR at 40 n.29
(citing N.T., 11/10/20223, at 22-23).
102
Between the first and second day of the hearing, Attorney
Carroll filed an amended pro hac vice motion, which the Master
once again found materially defective and which the Master
denied. Thus, Attorney Lambert continued in an advisory capacity
on November 10. No corrected motion was filed, and Attorney
Lambert did not participate in the November 14 hearing.
App. 53
remotely on November 14 after an asserted emergency
rendered him unavailable to appear sooner.
The testimony of Commissioners Ulsh and Bunch
need hardly be reviewed. While Attorney Robert A.
Wiygul for the Secretary methodically questioned both
of them regarding every potentially relevant
communication, decision, and event (official and
unofficial) that pertained to their knowledge and
understanding of our stay order and the Speckin
inspection, each of these two commissioners invoked
his Fifth Amendment right against self-incrimination,
sometimes to the point of absurdity.103 The Special
Master repeatedly cautioned that, because these
proceedings were civil in nature, the fact-finder could
draw adverse inferences from these invocations.104
Of necessity, then, Commissioner Shives, who
testified without invoking any privileges, provided
much of the relevant probative evidence that
Commissioners Ulsh and Bunch neither admitted nor
denied. The resulting narrative revealed that her
103
For example, Commissioner Ulsh refused to answer a question
concerning who represented him, N.T., 11/9/2022, at 141-43, and
would not confirm whether he was aware of legal pleadings that
had been issued in his name. Id. at 138 (refusing to respond to
whether he had “a recollection of [he] and [his] Co-Petitioners
fil[ing] this lawsuit against the Secretary in August of 2021”).
104
See Harmon v. Mifflin Cty. Sch. Dist., 713 A.2d 620, 623 (Pa.
1998) (noting that an adverse inference may be drawn from the
invocation of the Fifth Amendment by a witness in civil litigation,
and stating that “the inference to be drawn from a party’s failure
to testify serves to corroborate the evidence produced by the
opposing party”).
App. 54
resistance to the measures undertaken by
Commissioners Ulsh and Bunch in the name of
investigating alleged irregularities in the 2020 general
election resulted in her frequent exclusion from the
discussions that led to, e.g., the Speckin inspection,
which she did not know about until months after it
occurred. Much of what she did learn about the
unofficial proceedings came from her incidental
inclusion in group text conversations revealing the
lengths to which her fellow Commissioners had gone to
withhold information about actions undertaken,
nominally on behalf of the County she had been elected
to represent.
It also emerged that her failure to appear at her
scheduled deposition was not a function of her
deliberate non-compliance, as it evidently was for
Commissioners Ulsh and Bunch, but rather because
Attorney Carroll had failed to forward to her the notice
of her deposition that the Secretary timely served upon
him. Attorney Carroll waved away the omission as an
oversight, but his oversight appears only to have
affected Commissioner Shives, who, it turns out, had
refused to support all or most of the efforts to
interrogate the conduct of the 2020 election that led us
to this pass and who was unlikely to invoke the Fifth
Amendment. Commissioners Ulsh and Bunch,
conversely, evidently were informed of the notices.105
105
See generally N.T., 11/9/2022, at 217-29 (documenting an
extensive, contentious colloquy reflecting suggestions of conflict,
related unequal treatment of Commissioner Shives relative to
Commissioners Ulsh and Bunch, and the degree to which Shives
might be prejudiced as the lone Commissioner willing freely to
App. 55
The Special Master’s findings of fact necessarily
derived from the testimony of Commissioner Shives
and Mr. Macias. But the Master consistently appended
to citations of those witnesses’ testimony instances
when Commissioners Ulsh and Bunch invoked the
Fifth Amendment rather than address the same topic.
This effectively embodied the Master’s decision to draw
adverse inferences as corroborative rather than direct
evidence, as well-established law allows and the
evidence in this case unequivocally justifies.106 Notably,
Commissioner Shives and Mr. Macias testified either
to matters that the County has acknowledged at least
by necessary implication (e.g., the potentially spoliative
testify at the hearing). When Attorneys Carroll and Lambert were
selected by a majority vote of the Commission, Commissioner
Shives had no choice but to accept the representation. But
Attorney Carroll’s failure to notify her of her mandatory obligation
to attend a duly noticed deposition (and, for that matter, to attend
the November 9, 2022 hearing, which she learned about the
preceding evening), exposed her to sanctions and even arrest. See
id. at 214-15 (regarding the lack of notice).
Relatedly, Attorney Carroll’s continuing representation of all
named Petitioners in these sanction proceedings, in which the
Secretary has sought sanctions against the County, Petitioners
Ulsh and Bunch individually, and Attorney Carroll, presents an
obvious risk of a conflict between Attorney Carroll and his clients.
Neither the parties nor Attorney Carroll have defended themselves
at each other’s expense, but that is not to say there were not
defenses available to each that could prejudice another’s interests.
We will not take up this question sua sponte, but Attorney Carroll
would be wise in future endeavors to address potential conflicts
with his client in conformity with his ethical obligations.
106
See Harmon, 713 A.2d at 623-24.
App. 56
effect of Speckin’s inspection107) or that circumstances
all but necessarily imply (e.g., that Commissioners
Ulsh and Bunch were conscious, at least generally, of
our stay order and of the Secretary’s stated basis for
seeking it).
The parties and the Master agreed early in these
proceedings that, after the hearings concluded, the
parties would each submit proposed findings of fact and
conclusions of law. Even though that agreement was
confirmed on the record at the conclusion of the
November 14 hearing—including as to the filing’s form,
i.e., laid out with the customary numbered paragraphs
with references to the record—the County declined to
employ that format, or for that matter to submit any
proposed findings of fact pertinent to the allegations of
contempt. Instead, the County submitted a strikingly
brief, minimally sourced document that rehashed its
principal argument regarding the scope of this Court’s
107
Compare, e.g., Answer to Appellant’s Application for An Order
Holding Appellees in Contempt and Imposing Sanctions at 8
(noting that, per the Speckin report, “there was no way to
determine whether and to what extent [the prior insertion into the
voting equipment of external drives] compromised the data or the
system during past elections); Dominion Complaint at 17 ¶69
(Sanctions Petition, Ex. A) (noting that the Speckin inspection
showed that external USB hard drives had been inserted in the
machines on several occasions, and that there is no known list of
approved external drives that could have been or were used or
inserted into the machines); id. at 2 ¶2 (Speckin concluding that
there was no way to determine whether and to what extent these
unauthorized drives compromised the data or the system) with
Dominion Complaint, Ex. E (Speckin Report) (describing Speckin’s
imaging of voting machine hard drives to “Western Digital 4TB
USB hard drives”).
App. 57
protective order.108 Conversely, the Secretary provided
a nearly ninety-page narrative, painstakingly sourced,
in the prescribed form.
The County also argued that sanctions could not be
imposed because, on its account, “[t]he Pennsylvania
General Assembly has delegated exclusive authority to
county election boards to perform several functions
relating to purchasing, maintenance, inspection and
investigation of voting equipment.”109 Because this
108
An unresolved interlineation suggests that the County intended
to engage Mr. Macias’s testimony. See Fulton County’s Proposed
Findings of Fact and Conclusions of Law at 8 (“[MACIAS /
CLEANING UP REMAINING HEARING TR REFS]”). In any
event, while Mr. Macias’s testimony is relevant to the undisputed
risk of spoliation, it is Commissioner Shives’ testimony that speaks
to what Commissioners Ulsh and Bunch knew and believed and
when. The County makes no effort to propose a counternarrative
on these points.
109
Id. at 12 (citing, in the pages that followed, 25 P.S. §§ 2642-43)
(emphasis added). In characterizing its authority as “exclusive,”
the County writes 25 P.S. § 2621 out of the Election Code. That
section describes the Secretary’s duty “[t]o examine and reexamine
voting machines, and to approve or disapprove them for use in this
state, in accordance with the provisions of this act.” 25 P.S.
§ 2621(b). Notably, the architects of the Election Code believed
that the powers and duties of both the Secretary and the county
boards of elections merited their own entire articles of the Code. So
to cite only the Code’s provisions concerning county election boards
is to disregard a suite of provisions pertaining to the
Secretary—provisions which the County itself has discussed at
length in the underlying litigation. In any event, no provision of
the Election Code suggests that a county may unilaterally
disregard a court order. Where a party believes an order conflicts
with a statute, it may seek relief on that basis. But it may not
decide for itself which of the competing mandates prevails. Cf.
App. 58
obligation required the provision of “functional election
equipment,” the County continued, it “cannot be held in
contempt for its good faith efforts to protect the
constitutionally guaranteed rights of its citizens.”110
Closing with a non sequitur that neither the argument
in which it appears nor the text of our stay order
supports, the County contended that “[t]he Court’s
January [Stay] Orders did not prohibit Fulton County
from conducting inspection [sic] of defunct and
decertified voting machines that had already been
decommissioned and were never going to be used
again.”111
The conclusory nature of the County’s arguments
can best be illustrated by the following excerpt from its
submission:
Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir. 1971) (citing Howat
v. Kansas, 258 U.S. 181, 189-90 (1922)) (“Whether or not the
district court issued the preliminary injunction on the basis of a
correct or incorrect view of the law, the order must unquestionably
be obeyed.”).
110
Fulton County’s Proposed Findings of Fact and Conclusions of
Law at 12.
111
Id. The County has repeatedly returned to its claim that the
machines here at issue will never again be used due to their
decertification and the County’s acquisition of new voting
equipment from one of Dominion’s competitors. Lost in this theory
is that the County’s Petition for Review explicitly seeks
recertification of those machines and asserts bases for relief that
clearly are predicated on disputed claims regarding the condition
of the machines immediately after the Wake TSI inspection. The
County insists that it presents only questions of law, but how the
County chooses to cast its Petition for Review is immaterial to the
Secretary’s right to defend against all claims as pleaded.
App. 59
The issues in the underlying suit are purely
concerning the legal question of who, among the
Secretary and the County Board of Elections had
authority to perform the acts of having the
Dominion machines inspected in the first
place.[112] The actual integrity of the machines,
and the extent to which they were inspected
and/or compromised by the Wake TSI Report is
not at issue in the underlying litigation.[113]
Therefore, in addition to not being within the
scope of the Supreme Court’s January Orders,
and even if it was, the Conty [sic] had a right to
do it, and even if it did not, the act in itself did
ont [sic] violate the spirit of the January Orders,
because no contemptuous act occurred by Fulton
County have [sic] the defunct machines
inspected.114
In sum, Fulton County has raised only one intelligible
defense: the claim that our stay orders barred only the
specified inspection at the specified date and time that
was referred to in those orders.
112
The County raises no such claim in the underlying litigation.
Rather, it challenges the Secretary’s decertification authority, both
facially and as exercised in this particular case.
113
As noted previously, the County’s Petition facially contradicts
this claim. It also made the same claim to this Court in opposition
to the Secretary’s first Emergency Application. When we granted
the Secretary’s application, the County might have suspected that
this Court found its position at best less than clear.
114
Fulton County’s Proposed Findings of Fact and Conclusions of
Law at 18-19.
App. 60
IV.
The Special Master’s Recommendations
and Our Analysis
A. Fulton County’s Alleged Violation of
this Court’s Order and the Special
Master’s Recommendation That We
Hold the County in Contempt
“There can be no question that courts have inherent
power to enforce compliance with their lawful orders
through civil contempt,” which “has long been
recognized as the appropriate means by which a court
may compel compliance with its orders.”115 This
inherent power dates back centuries, and it is
embodied in our Judicial Code.116
Among the matters we directed the Special Master
to determine was whether the Secretary’s allegation of
contempt and the sanctions sought were civil or
criminal in nature. What distinguishes civil from
criminal contempt are the ends to be achieved, and the
classification dictates what process is due the alleged
contemnor. This Court has explained the governing
standard as follows: “it is a several[-]step process that
must take place to hold one in civil contempt—rule to
show cause why an attachment should not issue, . . .
hearing on the contempt citation, [and an] adjudication
115
In re Investigating Grand Jury of Phila. Cty., 433 A.2d 5, 6 (Pa.
1981) (cleaned up).
116
See 42 Pa.C.S. § 4132.
App. 61
of contempt.”117 In contemporary terms, the defendant
in civil contempt must be given notice of its alleged
contempt and the opportunity to respond. Here, Fulton
County was given that much and more, much of it
gratuitous and far more generous than the County’s
conduct deserved.
With regard to the ends to be achieved, the
distinction depends upon whether the sanctions’
“dominant purpose is to punish for the violation of a
court order [criminal contempt] or to coerce into
compliance with the order [civil contempt].”118 Civil
contempt also enables the court to award the
complainant expenses incurred as a consequence of the
contemnor’s violation.119 In imposing sanctions for
coercive purposes, “the court must exercise the least
possible power to the end proposed.”120
As noted above, notwithstanding Fulton County’s
occasional post hoc suggestion to the contrary, the
Special Master and the parties agreed that this
proceeding sounds in civil rather than criminal
117
Commonwealth ex rel. Magaziner v. Magaziner, 253 A.2d 263,
266 (Pa. 1969) (quoting Commonwealth v. Snowden, 1 Brewster
218, 219 (Pa. 1868)). Both Magaziner and Snowden addressed
instances of imprisonment for civil contempt, but, plainly, the
process required for coercive or compensatory relief should be no
more exacting than it is to establish a basis for imprisonment.
118
Barrett v. Barrett, 368 A.2d 616, 619 (Pa. 1977).
119
See East Caln Twp. v. Carter, 269 A.2d 703, 706 (Pa. 1970).
120
Commonwealth, DEP v. Cromwell Twp., Huntingdon Cty., 32
A.3d 639, 657 (Pa. 2011).
App. 62
contempt. The Secretary primarily seeks compliance
with this Court’s temporary stay as well as
compensation for the costs of obtaining and, belatedly,
enforcing that stay when the County subverted that
order in fact. We agree that the sanctions here at issue
are to be resolved according to the rules of civil rather
than criminal contempt.
“[I]n civil contempt proceedings the burden is on the
complaining party to prove noncompliance by a
preponderance of the evidence.”121 “The corollary of this
proposition is that the order which is said to have been
violated must be specific and definite.”122
Mere noncompliance with a court order is not by
itself sufficient to prove contempt; rather, the
complaining party must prove:
(1) That the contemnor had notice of the specific
order or decree which he is alleged to have
disobeyed;
(2) That the act constituting the contemnor’s
violation was volitional; and
(3) That the contemnor acted with wrongful
intent.123
121
Barrett, 368 A.2d at 621.
122
In re Rubin, 378 F.2d 104, 108 (3d Cir. 1967).
123
Waggle v. Woodland Hills Ass’n, Inc., 213 A.3d 397, 403 (Pa.
Cmwlth. 2019).
App. 63
The County lashes its defense entirely to the
question of clarity; it argues that our stay orders
pending appeal refer by their terms only to the thenemergent Envoy Sage inspection that those orders
specified. Consequently, it argues, nothing in our
orders barred the County from inviting or facilitating
another inspection by any different party at any
different time—because the County did not violate an
unambiguous mandate, we are told, the County cannot
be held to have violated the order at all, and therefore
cannot be held in contempt.
There is no shortage in Pennsylvania case law of
boilerplate language to support this general
proposition, but the County cites precious little of it.
Primarily, it relies upon Stahl v. Redcay. There,
consistent with the Third Circuit decision in Rubin, the
Superior Court explained:
Because the order forming the basis for civil
contempt must be strictly construed, any
ambiguities or omissions in the order must be
construed in favor of the defendant. In such
cases, a contradictory order or an order whose
specific terms have not been violated will not
serve as the basis for a finding of contempt. . . .
A person may not be held in contempt of court
for failing to obey an order that is too vague or
that cannot be enforced.124
124
Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006) (quoting In
re Contempt of Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004));
see Fulton County’s Proposed Findings of Fact and Conclusions of
Law at 8-9.
App. 64
But the County offers nothing about Stahl’s context.
In Stahl, the Superior Court reversed sanctions
imposed when counsel made a factual assertion during
his opening argument that the court allegedly had
precluded in a pre-trial ruling. But neither the
opposing party nor the sanctioning trial court had cited
any order imposing precisely the evidentiary constraint
that the defendant allegedly violated, and the record
disclosed none. The Stahl court nowhere suggested that
violating the circumstantially clear intention of a court
as embodied in a duly issued order of record is
immunized simply by virtue of a claim of ambiguity
that depends upon isolating the order from the
circumstances of its issuance, including the stated
reasoning of the party seeking the order and the logical
intent of the Court in awarding it.125
Were the rigid proposition for which Fulton County
cites Stahl consistent with the broader run of
Pennsylvania law, that case’s distinguishing features
would be of little moment. But the law on this subject
is not so doctrinaire. Like other jurisdictions we have
surveyed, Pennsylvania law provides for far more
sensitivity to circumstance than Stahl’s language
suggests or its peculiar facts would require. Common
sense dictates that a more rigid approach inevitably
would tempt those prepared to play fast and loose with
court orders.
125
Beyond Stahl—and by implication the cases cited therein, which
the County does not discuss—the County cites only Rodney v. Wise,
500 A.2d 1187, 1190 (Pa. Super. 1985), a case that involved neither
injunctive relief nor parsing a written order.
App. 65
We find particular guidance in United States v.
Christie Industries,126 which we cited favorably in our
thoroughly sourced decision in Commonwealth v.
Garrison.127 In Christie, the United States Court of
Appeals for the Third Circuit rejected a defense to
contempt that relied upon an excruciatingly literal
reading of an order. The order in question was a
preliminary injunction that barred the defendants
“from preparing, packaging, promoting, selling,
distributing, introducing and causing to be introduced
and delivering and causing to be delivered for
introduction into interstate commerce firecracker
assembly-kits on the ground that they are banned
hazardous substances within the meaning of the Child
Protection Act of 1966.”128 In the order, the court
described the assembly kits in question as containing
“cylinder casings, cup-like end caps, fuse coil, one
plastic bag containing potassium nitrate and one
plastic bag containing aluminum powder and sulfur.”129
The government originally asked the court to enjoin
shipping not only of “assembly-kits” but also of “any
similar article, or any component of said firecracker
assembly-kits.”130 But in its order granting the
injunction, the court excluded the catch-all language.
126
465 F.2d 1002 (3d Cir. 1972).
127
396 A.2d 971, 977 (Pa. 1978).
128
Christie Indus., 465 F.2d at 1005 n.2.
129
Id.
130
Id. at 1006.
App. 66
Citing the necessity of clarity, the defendants raised
several highly technical arguments that parsed the
order so as to exclude the allegedly contemptuous
conduct. The court rejected nearly all of these
arguments, including in particular the claim that the
order was not violated (a) by the shipment in a single
package of components that made up the “kit,” because
the components were sold separately and were not
advertised or sold as a “kit”; or (b) by substituting
components such as non-cylindrical casings
(“cylindrical” casings being the only sort described in
the order); or (c) by shipping all components of an
above-described kit but for the fuse coil.
The court rejected this last argument not because it
was proscribed expressly or even implicitly, but
because the court found that it violated the spirit and
intent of the injunction to protect children during the
pendency of litigation instantiated to do precisely
that.131 The court observed that omitting the coil did
not vitiate the essential non-compliance of the workaround, because a reasonably curious child could be
expected to devise substitute fuses.
Similarly, the court found that the defendant
violated the order when it added a warning in its
catalog that only people of legal age should purchase
the fireworks kits (or their equivalent) and that the
buyer must sign a statement attesting that the buyer
is of legal age. Again engaging common sense rather
than parsing syntax in a vacuum, the court observed
that some children foreseeably would order the kits (or
131
See id. at 1007 n.6.
App. 67
their equivalent) notwithstanding the warning and
would have no scruple about signing the form
dishonestly.132
The Christie court acknowledged “that a person will
not be held in contempt of an order unless the order
has given him fair warning that his acts were
forbidden,” and that “[t]he longstanding, salutary rule
in contempt cases is that ambiguities and omissions in
orders redound to the benefit of the person charged
with contempt.”133 But it added a critical caveat:
[T]his is not to say that where an injunction does
give fair warning of the acts that it forbids, it
can be avoided on merely technical grounds. The
language of an injunction must be read in the
light of the circumstances surrounding its entry:
the relief sought by the moving party, the
evidence produced at the hearing on the
injunction, and the mischief that the injunction
seeks to prevent.134
To similar effect is a long list of cases, including a
Second Circuit case in which the court rejected a
defense based upon a dubiously literal interpretation of
an order: “In deciding whether an injunction has been
132
Id. at 1007. The court also cited circumstantial evidence that
the defendant knew that its warning and signature requirement
were ineffectual and that it intended to market to children,
observing that the defendant had promised all purchasers an entry
in a drawing for a radio-controlled model airplane.
133
Id. at 1006 (citing Kammerer, 450 F.2d at 280).
134
Id. at 1007 (emphasis added).
App. 68
violated it is proper to observe the objects for which the
relief was granted and to find a breach of the decree in
a violation of the spirit of the injunction, even though
its strict letter may not have been disregarded.”135
135
John B. Stetson Co. v. Stephen L. Stetson Co., 128 F.2d 981, 983
(2d Cir. 1942) (citing, inter alia, Ginsberg v. Kentucky Util. Co., 83
S.W.2d 497 (Ky. 1935), in which the court noted “a principle
running through all authorities that injunction orders must be
honestly and fairly obeyed and courts will not tolerate schemes or
subterfuges, however artfully they may be clothed to disguise their
real nature and purpose, if they are in fact designed to thwart the
court’s decrees; and the violation of the spirit of an injunction is a
breach of the court’s mandate even though its strict letter may not
have been disregarded” (id. at 500)); see United States v.
Greyhound Corp., 508 F.2d 529 (7th Cir. 1974) (“To provide a
defense to criminal contempt, the mistaken construction must be
one which was adopted in good faith and which, given the
background and purpose of the order, is plausible. The defendant
may not avoid criminal contempt by twisted interpretations or
tortured constructions of the provisions of the order.” (emphasis
added; internal quotation marks omitted)); Institute of Cetacean
Research v. Sea Shepard Conservation Soc., 774 F.3d 935 (9th Cir.
2014) (holding that an enjoined party may be held in contempt for
providing a non-party with the means to violate the injunction if
it knows the receiving non-party is likely to do so); cf. Mayor of
Vicksburg v. Henson, 231 U.S. 259, 273 (1913) (rejecting a claim
that a decree was overbroad, observing that “[t]he nature and
extent of the . . . decree is not to be determined by seizing upon
isolated parts of it or passages in the opinion considering the rights
of the parties, but upon an examination of the issues made and
intended to be submitted, and what the decree was really designed
to accomplish” (emphasis added)); Salazar v. Buono, 559 U.S. 700,
762 (2010) (Breyer, J., dissenting) (citing Stetson and Mayor of
Vicksburg for the proposition that “[c]ourts long have looked to the
objects for which injunctive relief was granted, as well as the
circumstances attending it, in deciding whether an enjoined party
has complied with an injunction” (cleaned up)).
App. 69
Writing for the Court in McComb v. Jacksonville
Paper Co.,136 Justice Douglas aptly anticipated the
perils of literalist interpretations that exclude
reasonable inferences about what any reasonable party
would have understood was at issue in the run-up to
the issuance of a contested injunctive order. In that
case, Justice Douglas wrote:
It does not lie in their mouths to say that they
have an immunity from civil contempt because
the plan or scheme which they adopted was not
specifically enjoined. Such a rule would give
tremendous impetus to the program of
experimentation with disobedience of the law
which we condemned in Maggio v. Zeitz[137]. The
136
137
336 U.S. 187 (1949).
333 U.S. 56 (1948). Although Maggio used the evocative
“experimentation with disobedience” language, its discussion
aimed at a somewhat different issue that nonetheless finds an echo
in the County’s conduct in this case. In that case, the Court
cautioned that “a contempt proceeding does not open to
reconsideration the legal or factual basis of the order alleged to
have been disobeyed and thus become a retrial of the original
controversy. . . . [W]hen [the order] has become final, disobedience
cannot be justified by re-trying the issues as to whether the order
should have issued in the first place.” Id. Although this does not
bear directly upon the County’s argument regarding the proper
scope of our order, it is relevant to the County’s serial effort to
recast various aspects of this case to suit its purposes during the
course of this contempt proceeding. This captures, for example, the
County’s attempt to relitigate whether its Petition for Review in
fact raises issues of fact, and its frankly incoherent claim that,
because its voting equipment has been decertified and replaced, it
is no longer voting equipment at all such that the County was as
free to order its inspection as it would be to order the inspection of
App. 70
instant case is an excellent illustration of how it
could operate to prevent accountability for
persistent contumacy. Civil contempt is avoided
today by showing that the specific plan adopted
by respondents was not enjoined. Hence a new
decree is entered enjoining that particular plan.
Thereafter the defendants work out a plan that
was not specifically enjoined. Immunity is once
more obtained because the new plan was not
specifically enjoined. And so a whole series of
wrongs is perpetrated and a decree of
enforcement goes for naught.138
The McComb Court also proposed an obvious goodfaith alternative to gambling on a blinkered, selfserving reading of an order and hoping for the best:
“Respondents could have petitioned the District Court
for a modification, clarification or construction of the
order. But [they] did not take that course . . . . They
undertook to make their own determination of what the
decree meant. They knew they acted at their peril.”139
The County might have elected some variation on this
approach out of caution if it felt that the Speckin
inspection could not wait.
a county vehicle. This last, of course, is incoherent primarily
because, if the County succeeds in its underlying legal challenge to
the Secretary’s authority to decertify its machines, then the
decertification would be void. The County cannot seek to benefit
from a decertification that it still hopes to invalidate in the
underlying litigation.
138
McComb, 336 U.S. at 192-93.
139
Id. at 192 (emphasis omitted).
App. 71
In light of the circumstances in which the Secretary
sought the protective order and the substance of the
Petition for Review against which the Secretary sought
to defend, and in the similar light cast by the relief the
Secretary sought, the arguments the Secretary made in
support in its several related applications here and
below, and the arguments the County made in
opposition, it would beggar credulity to accept Fulton
County’s suggestion that its agents were not aware
that the Speckin inspection contravened the concern for
spoliation that alone underlay this Court’s decision to
grant the Secretary the protective order it sought.
To similar effect, the Special Master observed:
Because the applications that elicited the
Injunction Order clearly related to the collateral
discovery issue on appeal, there was no need for
any party to speculate or guess about the
purpose of the Injunction Order . . . . The
Supreme Court obviously intended to preserve
its ability to render an appellate decision that
was meaningful. . . . And any subsequent
inspection of the Dominion Voting Equipment
would moot out that appeal and prevent a
meaningful resolution of the issues on appeal.
Those issues were Dominion’s right to protect its
property and the Secretary’s right to preserve
evidence for her defense, which both depended
entirely upon preventing further inspection of
the Dominion Voting Equipment.140
140
SMR at 63 ¶8 (emphasis in original).
App. 72
Perhaps tellingly, the County does not openly test
our credulity by proclaiming actual ignorance on the
part of its agents. Although the County implies and
surely would welcome that inference, it has never
submitted evidence or clearly averred that any one of
Fulton County’s agents considered or was actually
confused about the intended scope or objective of the
temporary order that this Court issued. Instead, we
have Commissioner Shives’ testimony that the other
two Commissioners understood the broader intention
of our order; the serial invocations by Commissioners
Ulsh and Bunch of the Fifth Amendment in response to
any direct question about what they knew and
believed; and the circumstantial evidence comprising
how these two commissioners went about deciding to
allow and ultimately facilitating the Speckin
inspection, including walling off Commissioner Shives.
They behaved to all appearances like people who knew
that they had something to hide.141
141
See id. at 67 ¶22 & n.38. The Special Master also noted (without
expressly crediting) the Secretary’s argument that, in addition to
bespeaking Commissioners Ulsh and Bunch’s desire to hide their
activities from Commissioner Shives, the citizenry of Fulton
County, the Secretary, and Dominion, the conspicuous secrecy with
which the Commissioners acted also may have violated various
statutes. These include 25 P.S. § 2643 (Election Code) (“All actions
of a county board [of elections] shall be decided by a majority vote
of all the members”) and 65 Pa.C.S. §§ 705, 708 (the “Sunshine
Act”) (requiring public votes and providing that the public must be
notified of any executive sessions held, and their reasons, in the
public meeting immediately preceding or following the session).
Like the Special Master, we find it unnecessary to address these
issues. But we note that, when compared with the Commission’s
generally transparent behavior relative to their other efforts to
inspect the voting equipment, it is suggestive that only the Speckin
App. 73
The Master also explained the patent absurdity of
the County’s reading: (1) that our first order, because
it referred expressly to the Envoy Sage inspection and
referred to the date and time for which it was
scheduled, would have left the County free to
reschedule the very same Envoy Sage inspection by a
day or even an hour; (2) that our second order was
issued, nonsensically, for the exclusive purpose of
barring a particular inspection at a particular moment
that passed nearly two weeks earlier; or, at best,
(3) that we sought to stop only Envoy Sage from
inspecting the machines, leaving literally any other
individual or entity free to do anything to the voting
equipment the County wanted.142 The Special Master
concluded:
Put simply, . . . no reasonable interpretation of
the Injunction Order would render it
inapplicable to the Speckin Inspection. That
inspection directly implicated the ground on
which the Injunction Order was sought—
avoiding spoliation[143] of the evidence. Equally
inspection was arranged so quietly, and that Commissioners Ulsh
and Bunch turned secretive only after our stay order issued.
142
143
SMR at 63-65 ¶¶8-12.
During these hearings, Attorney Carroll in both his questioning
and argument repeatedly made much of the proposition that Mr.
Macias could not testify to a reasonable degree of certainty that
the Speckin inspection in fact compromised the electronic
information on the voting equipment as it was following Wake TSI
inspection. But in so arguing, Attorney Carroll either
misapprehended or sought to distract from the real issue—not the
fact of spoliation but the impossibility of determining whether
App. 74
telling, the interpretation the County now
attempts to give the Injunction Order . . . is
unsupported by any of the grounds offered to the
Supreme Court in support of the Secretary’s
application for the injunction. Indeed, if
anything, these grounds supported prohibition of
the [Speckin] Inspection to an even greater
degree than they supported prohibition of the
Proposed Envoy Sage inspection.144
We agree. A court assessing compliance with its
order may and indeed should view the words of the
order in light of the terms and reasoning of the party
seeking it and the procedural and real-world
circumstances amid which it was issued.145 That we
spoliation occurred. Not only did the County offer no
countervailing evidence, it established through its own various
pleadings and the findings in the Speckin report, itself, the
inescapable uncertainty that followed the Speckin inspection.
144
Id. at 64-65 ¶12. Here, the Special Master alludes to the fact
that, in the run-up to the planned Envoy Sage inspection, the
County at least offered the Secretary a token gesture toward the
imposition of an agreeable protocol. (In this regard, it is worth
noting that at that time, the Secretary was attempting to negotiate
to allow the inspection, provided the County’s agreement to an
acceptable protocol.) Because it was planned and executed in
secret, it follows trivially that the County made no such effort,
token or otherwise, in connection with the Speckin inspection.
145
Pennsylvania appellate courts typically review trial court
contempt orders for an abuse of discretion, “plac[ing] great reliance
on the sound discretion of the trial judge,” and reversing only
where “the trial court’s conclusions are unreasonable as shown by
the evidence of record.” G.A. v. D.L., 72 A.3d 264, 268-69 (Pa.
Super. 2013). Appellate courts in other jurisdictions have deferred
App. 75
require clarity as to the conduct proscribed to ensure
that the contempt sanction is not imposed when the
alleged contemnor in good faith may not have
understood the order’s scope does not warrant
venerating form to a degree that makes a mockery of
substance. That our case law requires us to interpret
ambiguous language in favor of the alleged contemnor
does not require us to treat as reasonable an
interpretation of our order that would render it
incompatible with the clear impetus for its issuance
and, in case of the January 27, 2022 order, without any
discernible effect.
to lower courts’ interpretations of their own orders when
determining whether an alleged contemnor had sufficient notice
and understanding of what conduct was proscribed to sustain a
finding of contempt. See In re Grand Jury Subpoena (T-112), 597
F.3d 189, 195 (4th Cir. 2010) (noting in review of civil contempt
order that “district courts are in the best position to interpret their
own orders”); cf. In re Asbestos Prods. Liab. Litig. (No. VI), 718
F.3d 236, 243 (3d Cir. 2013) (noting that the court reviews with
deference a district court’s interpretation of its own orders); Ala.
Nursing Home Ass’n v. Harris, 617 F.2d 385, 388 (5th Cir. 1980)
(“Great deference is due the interpretation placed on the terms of
an injunctive order by the court who issued and must enforce it.”);
Commercial Union Ins. Co. v. Sepco Corp., 918 F.2d 920, 924 (11th
Cir. 1990) (granting “deference on appeal” to the district court’s
construction of earlier order). This principle does not bear directly
upon a court of last resort assessing compliance with its own order.
But they incline us toward accepting the findings and conclusions
of the Special Master, who assessed witnesses’ credibility based
upon observations of live testimony. The interpretive deference
principle also reinforces a practical approach to interpreting the
thrust of allegedly violated orders: no interpretive deference is
called for if discerning an order’s scope through the eyes of a party
bound by it was merely mechanical.
App. 76
We can reaffirm our authority to proscribe conduct
temporarily in the interests of justice or we can reward
parties who play dumb to circumvent the proscription.
But we cannot do both. We choose the former. We agree
with the Special Master that the County deliberately,
willfully, and wrongfully violated this Court’s
temporary order when it allowed Speckin to inspect the
voting equipment, the condition of which is material to
the underlying litigation. Accordingly, we adopt the
Special Master’s recommendation that this Court hold
Fulton County in contempt of this Court.
B. The Sanctions Proposed by the
Special Master
The Special Master recommends that this Court
impose several sanctions upon Fulton County
specifically for contempt. First, the Special Master
proposes that, as a compensatory sanction, we direct
Fulton County to reimburse the Secretary for counsel
fees and costs incurred from the effective inception of
the underlying protective order litigation that has led
us to this pass. The Special Master identified the
relevant trigger date as December 17, 2021, the date
upon which the Secretary filed the first Emergency
Application to enjoin the County’s proposed Envoy Sage
inspection.146
Because we grant counsel fees to compensate the
aggrieved party whose interests the violated order was
intended to protect, December 17 is the proper trigger
date, because it is then that the Secretary endeavored
146
See SMR at 69-70 ¶¶28-30.
App. 77
—ultimately successfully—to gain a degree of
temporary protection for evidence that it believed
might be relevant to its defense. Given what happened
in the year to come, that is also precisely when the
Secretary began throwing money in a well, for all the
good it ultimately did. When the County violated our
order in July, it necessarily compromised the
evidentiary value of the equipment for assessing its
condition immediately after the Wake TSI inspection,
precisely what the Secretary sought to preserve. The
Secretary’s first filing in furtherance of that goal was
the December 17, 2021 Application. Later, our
temporary order provisionally validated the Secretary’s
concern and preserved the status quo while we
deliberated over whether the protective order should
have been granted by the Commonwealth Court in the
first place. The July inspection not only led to the
instant sanction proceedings, it also rendered nugatory
every dime the Secretary spent to protect those
machines in the preceding eight months. Accordingly,
we agree that Fulton County must reimburse all of the
fees and costs the Secretary incurred in securing the
protections that it has now lost irretrievably due to the
County’s flagrant violation of our stay order.147
The Special Master also proposes to ensure that
Fulton County cannot again compromise the integrity
of the machines. While it appears undisputed that the
horse left the barn as soon as Speckin tapped into the
voting equipment, we know what we do not know, and
147
Like the Special Master, we decline to impose sanctions on
Attorney Carroll for contempt of court specifically. But we do so for
other reasons set forth below.
App. 78
this Court will give the Secretary the benefit of our
uncertainty. We will not assume that there is no
scenario in which the present condition of the voting
equipment may prove relevant to one or more of the
County’s claims, and at this point the County has given
us no reason to trust that it will honor a mere
reiteration of the same order it disregarded before. The
Special Master proposes that we direct the County to
transfer the voting equipment to “the custody and
control of a neutral escrow agent pursuant to an
agreement between the County, Dominion, and the
escrow agent. The escrow agent would hold the
Dominion Voting Equipment in trust until further
order of court.”148 The Special Master further specified
that the County would bear the expense of the
impoundment.
Taking the County at its word, it is unclear what
prejudice impoundment would cause. The County
insists, with increasing volume as this case has
evolved, that it has no interest in the equipment that
it now identifies as “defunct.” Further, it disclaims any
intention to use the equipment again. And the County
provides no specific reason why the equipment would
have any value to assessing the security of future
elections using other companies’ products. Any other
utility would be associated with the County’s other
litigation interests, which can be dealt with as they
arise; they are of no moment to the issue at hand.
Whether or how discovery required by these
sanction proceedings affects the County’s interests in
148
Id. at 73 ¶39.
App. 79
another lawsuit does not affect the Secretary’s
entitlement to a full accounting of non-privileged
evidence that is discoverable under the circumstances
of this proceeding. And even if we were receptive to the
argument, the County has never explained how its
litigation interests in any other case are disserved, nor
has the County availed itself of several opportunities to
do so in appropriate detail. Moreover, any party,
including Fulton County, is free to seek a continuance
or other relief from any court in which it is actively
litigating based upon the unfortunate situation it has
brought upon itself here. But we do observe that the
pending litigation requires us to clarify what court may
release or allow access to the impounded equipment.
We will entrust exclusive authority to end or modify
the impoundment to the judge presiding over the
underlying Petition for Review after the impoundment
is completed under the supervision of the Special
Master. That court shall consider any such requests in
light of our discussion in this Opinion. The
Commonwealth Court’s exclusive authority naturally
will pertain to requests associated with the County’s
Petition for Review. To ensure subsequent continuity in
the chain of custody and the protection of such
evidentiary value as the voting equipment may retain,
the Commonwealth Court’s authority must also
encompass requests associated with any other pending
proceeding, including the County’s contract action
against Dominion. As always, any party that is
aggrieved by an impoundment-related order may seek
emergency relief in this Court.
As noted earlier, the Special Master does not
recommend that this Court grant the Secretary’s
App. 80
requested sanction of directing dismissal of the
County’s underlying Petition for Review.149 We agree.
To grant that sanction would cross the line between a
coercive and punitive sanction, which lies outside the
bounds of a civil contempt proceeding. Moreover,
notwithstanding the presence of potentially factdependent claims, the County’s Petition for Review
includes pure questions of law pertaining to the
Secretary’s authority that may be resolved without
recourse to the compromised evidence. Settling these
legal questions will serve not only the parties but the
Commonwealth generally. While we must hold the
County to account for flouting our order, we will not
deny its day in court on its duly raised, purely legal
claims concerning the complex balance of state and
local power over elections and the equipment used in
election administration.
Instead, the Special Master recommended that this
Court order that, “to the extent any fact relating to the
effect of any inspection on the Dominion Voting
Equipment is or becomes relevant in the underlying
litigation, that fact will be conclusively established in
the Secretary’s favor.”150 The Master elaborated that
this was strictly compensatory in nature, granting the
Secretary the benefit of every potentially favorable
inference that the County’s malfeasance made
impossible for the Secretary to establish by
conventional proof.
149
See id. at 70-72.
150
Id. at 72 ¶35.
App. 81
While we do not disagree with the Special Master’s
reasoning or the essential fairness of the proposal, we
decline to grant this sanction. First, the undisputed
testimony regarding the degree to which the Speckin
inspection compromised the evidentiary benefit of the
machines to resolving the underlying litigation renders
it unlikely that the County will gain much support in
furtherance of its burden as Petitioner of proving any
disputed facts necessary to sustain one or more of its
claims. Second, its ability to do so will be limited by the
impoundment of the equipment. Finally, we are
reluctant to direct the fact-finder in the underlying
litigation to resolve factual disputes in any particular
way for fear of intruding unnecessarily upon that
court’s discretion. Any alleged problems in how the
lower court deals with factual disputes involving the
voting equipment as the underlying litigation
progresses can be raised, if necessary, on appeal.
C. The Special Master’s Alternative
Bases for the Imposition of Monetary
Sanctions and Their Application to
Attorney Carroll
The Special Master finds additional support for the
sanctions she recommends in rules that do not require
a finding of contempt. First, she reviews and relies
upon the Judicial Code, 42 Pa.C.S. § 2503 (“Right of
participants to receive counsel fees”) and
Pa.R.A.P. 2744 (“Further Costs. Counsel Fees.
Damages for Delay”), both of which, she correctly
observes, “target litigation conduct that is ‘dilatory,
App. 82
obdurate, or vexatious.’”151 We find that both the
County and Attorney Carroll are guilty of dilatory,
obdurate, and vexatious conduct, as well as conduct in
bad faith.
151
Id. at 74 ¶41; see 42 Pa.C.S. § 2503 (authorizing the award of
counsel fees for “(7) [a]ny participant who is awarded counsel fees
as a sanction against another participant for dilatory, obdurate or
vexatious conduct during the pendency of a matter” and “(9) [a]ny
participant who is awarded counsel fees because the conduct of
another party in commencing the matter or otherwise was
arbitrary, vexatious or in bad faith”); Pa.R.A.P. 2744 (authorizing
an appellate court to award “a reasonable counsel fee and . . .
damages for delay . . . if it determines . . . that the conduct of the
participant against whom costs are to be imposed is dilatory,
obdurate or vexatious”). This Court has held that there must be an
appeal, as such, before Rule 2744 sanctions may be imposed. South
Strabane v. Piecknick, 686 A.2d 1297, 1300 (Pa. 1996). Here, the
Special Master’s findings focus more or less exclusively on the
County’s actions associated with the Speckin inspection as a
violation of this Court’s temporary order, which, arising out of and
serving to preserve the integrity of a pending appeal, appropriately
is the subject of Rule 2744. However, we do not sanction Attorney
Carroll based upon the inspection itself. We lack the record to
determine his direct culpability for his clients’ behavior in this
regard. Instead, we impose sanctions primarily for his conduct
throughout these sanction proceedings, which is not an appeal, as
well as for his similarly vexatious conduct associated with the
appeal, itself. Whether it is most fair to associate Attorney
Carroll’s persistent misconduct with the underlying appeal, the
instant sanction action, or some combination of the two,
corresponding sanction authority for his “dilatory, obdurate, or
vexatious conduct” will be found in either provision. The Secretary
filed numerous applications for sanctions calling out such
misconduct as it occurred. Because the Special Master held all of
these in abeyance, they remain open for disposition. We award no
relief that has not been sought by the Secretary.
App. 83
Separately, the Special Master found a basis to
sanction the County in Pa.R.Civ.P. 4019, which
authorizes the imposition of sanctions, including
counsel costs and fees, when (among many other
things) a party fails “to obey an order of court
respecting discovery.” Relatedly, as the Commonwealth
Court noted in its opinion denying the Secretary’s
request for a protective order, courts have inherent
authority to sanction parties for spoliation of the
evidence.152
The Special Master offered the following analysis,
which we adopt:
42. The Commonwealth Court recently
described the meaning of [the terms dilatory,
obdurate, and vexatious], for purposes of fee
awards under the Judicial Code, as follows:
“Vexatious conduct is ‘without
reasonable or probable cause or excuse;
harassing; annoying.’” According to the
152
See Memo. & Order, 1/14/2022, at 5 (“Even if the inspection does
affect evidence later used in this case, sanctions discourage
spoliation.”); see also id. at 3 (citing cases and Pa.R.Civ.P. 4009.1
explaining spoliation sanctions generally and specifically
pertaining to the standard that applies to spoliation of
electronically stored evidence). Notably Fulton County agreed on
this point, and, like the Commonwealth Court, cited the
availability of sanctions after the fact as a basis for denying the
protective order and a stay pending appeal. See Answer to
Respondent/Appellant’s Emergency Application (Supreme Court)
at 7-8 (citing Memo & Order at 3 approvingly). In so many words,
the County itself said that if it did precisely what it ultimately did,
we could impose sanctions. We agree.
App. 84
Pennsylvania Superior Court, generally
speaking, ‘obdurate’ conduct may be
defined in this context as ‘stubbornly
persistent in wrongdoing.’ Webster’s
Ninth New Collegiate Dictionary 815
(1987). Conduct is ‘dilatory’ where the
record demonstrates that counsel
displayed a lack of diligence that delayed
proceedings unnecessarily and caused
additional legal work. In re Est. of Burger,
852 A.2d 385, 391 (Pa. Super. 2004)
(emphasis added), aff’d, 898 A.2d 547 (Pa.
2006).
MFW Wine Co., LLC v. Pa. LCB, 276 A.3d 1225,
1240 (Pa. Cmwlth. 2022) (cleaned up).
43. Additionally, Section 2503(9) of the
Judicial Code allows imposition of fees and costs
for conduct that is “otherwise . . . in bad faith.”
“The term ‘bad faith’ used in Section 2503(9) of
the Judicial Code means ‘fraud, dishonesty or
corruption.’” MFW Wine, 276 A.3d at 1240.153
The Special Master found that the County acted
vexatiously in allowing the Speckin inspection because
it had no reasonable excuse and compromised the
Secretary’s interests in preserving the evidence. It
acted obdurately insofar as Commissioners Ulsh and
Bunch acted with wrongful intent in violating the
order. And bad faith was evident in the secrecy
Commissioners Ulsh and Bunch preserved around their
153
SMR at 74-75 (cleaned up, citations modified; emphasis in
original).
App. 85
actions, making every effort to avoid the scrutiny of
anyone who might question or object to their actions,
including their fellow Commissioner Shives.154
Regarding Rule 4019 and the court’s inherent power
to impose sanctions for spoliation of evidence, the
Master reiterated that the manifest purpose of the
order was to preserve the electronic evidence against
spoliation during the pendency of the appeal. Based
upon the facts and intent underlying the recommended
finding of contempt, the Master found as well that
these bases for an award of counsel fees operated to
support the recommended grant of sanctions.155
As a function of its defense strategy, the County
offers no material argument against any of those rules’
application except the above-rejected categorical
defense to the charge that its conduct violated the
protective order at all. With specific regard to the
County, we adopt as our own the Special Master’s
reliance upon the same findings cited in support of
contempt, and we refer the reader to her discussion.
The sanction authority of these rules as applied
specifically to the County is academic; it works
redundantly with the sanctions for contempt.
Although we will not impute the County’s contempt,
as such, to Attorney Carroll directly, we do not overlook
the fact that the County’s violation occurred squarely
during his watch—indeed, months after his
appointment by the County and weeks after he had
154
Id. at 76 ¶46.
155
Id. at 76-77 ¶¶48-50.
App. 86
entered his appearance in the Commonwealth Court in
the underlying litigation. It is difficult to believe that
Attorney Carroll was ignorant of the events preceding
and culminating in the Speckin inspection. Certainly,
the inspection came to his attention by
September 2022, when he filed the County’s contract
claims against Dominion, which relied heavily on the
Speckin report. Aware as Attorney Carroll was (by then
at least) of the underlying appeal in this litigation as
well as the Secretary’s and Dominion’s claims of
entitlement to advance notice of any inspection, we find
notable that he determined that the inspection
warranted no action relative to this appeal, such as the
belated provision of notice to the Secretary, Dominion,
or, for that matter, the courts engaged in aspects of this
litigation. Similarly suggestive is the fact that,
immediately after terminating the representation of
prior counsel and appointing Attorneys Carroll and
Lambert as special counsel in this matter on April 12,
2022, Commissioner Ulsh signed out the key to the
locked room where the voting equipment was stored, a
key which he did not return until shortly after the
Speckin inspection.
Perhaps more importantly, once informed of these
events, the Secretary filed the instant Sanctions
Application, the detail, rigor, and potential merit of
which revealed to Attorney Carroll (if he didn’t know
already) the gravity of the County’s behavior as well as
his own potential exposure. Despite being given every
opportunity to participate in good faith in the
proceeding, Attorney Carroll incessantly transgressed
the bounds of zealous but ethical advocacy. He serially
raised the same arguments before both the Special
App. 87
Master and directly to this Court, long after it was
clear that neither would grant the relief he sought.
We never foreclosed the County’s right to raise
appropriate, particularized objections to the Secretary’s
discovery requests as specified by Special Master. This
Court and the Master granted multiple extensions to
facilitate the County’s exercise of this right. Instead of
adhering to these parameters, Attorney Carroll
repeatedly tied up the Special Master, this Court, and
the parties with prosaic eleventh-hour filings that drew
resources and attention away from these and other
proceedings.
Then there are Attorney Carroll’s transparent
efforts to delay the hearing itself. First, he insisted that
it be delayed until November 9 to make room for his
own vacation. Then, on the eve of that hearing, he
contended that Commissioner Ulsh would be unable to
attend the hearings due to his departure for vacation
on November 8, which was Election Day. Meanwhile,
as the November 7 and 8 depositions of the
Commissioners approached—depositions that,
themselves had already been delayed by Attorney
Carroll’s refusal to honor the Special Master’s orders
on their own terms—Attorney Carroll again attempted
to subvert them. First, early on the morning of
November 7, he filed a lengthy, but by then cookiecutter brief again contending that all discovery was
improper until the Special Master or the full Court
ruled on his categorical defense or his improperly
rendered, categorical objections to the Secretary’s
discovery requests.
App. 88
Even more significantly, Attorney Carroll also
argued that correspondence from the Secretary issued
the preceding Friday, November 4, concerning a
temporary breakdown in the statewide SURE system
required the Commissioners’ attention during the time
scheduled for their depositions. But it quickly emerged
that, not only had the system been restored in full early
on the morning of Saturday, November 5, but also that
Fulton County itself had printed out its poll books
utilizing the system later that same Saturday. By the
time Attorney Carroll claimed that the Secretary’s
letter precluded his clients’ depositions on Monday, the
problem the letter identified had been solved for days.
Attorney Carroll either failed to figure this out for
himself or knowingly used a specious claim as a pretext
to further jam up these proceedings.
The same morning, Attorney Carroll asserted that
Commissioner Ulsh could not appear at the hearing on
November 9 because of his general election duties. But
just three days earlier Attorney Carroll had told the
Special Master that the same commissioner could not
appear on November 9 because he was scheduled to
depart for vacation on Election Day.
Moreover, while Attorney Carroll apparently timely
informed Commissioners Ulsh and Bunch of their
obligations to appear for their depositions and the
hearing per timely deposition notices served by the
Secretary upon Attorney Carroll for his clients, he did
not timely convey notice of these obligations to
Commissioner Shives, who was no less subject to
sanctions for failing to appear than her fellow
commissioners. Attorney Carroll offered no satisfactory
App. 89
answer for the oversight, and we would be naïve to
overlook the fact that what distinguished
Commissioner Shives from her co-commissioners was
her persistent refusal to go along with the County’s
efforts to investigate the 2020 general election as well
as her willingness to testify fully to various matters as
to which Commissioners Ulsh and Bunch ultimately
invoked their Fifth Amendment rights against selfincrimination. Still, Attorney Carroll got what he
wanted. His relentless efforts to delay the proceedings,
his clients’ failures to be available at the time and place
specified in their notices of deposition (Commissioner
Shives for reasons outside her control but within
Attorney Carroll’s), and the time constraints we
imposed upon the Special Master’s proceedings made
it impossible to conduct the depositions in a way that
preserved the Master’s schedule, with the result that
the evidentiary hearings took considerably longer to
complete than they might have taken.
Attorney Carroll’s conduct did not much improve
during the hearings themselves, which proceeded as
scheduled despite his best efforts. Although the Special
Master declined to dwell on this in her Report, our
review of the record reveals that Attorney Carroll
frequently derailed and delayed the proceedings
through a combination of dubious objections, lines of
questioning on irrelevant subjects, and legal
digressions and conspiratorial hypotheses with little
discernible bearing upon the matter at hand.156 To their
156
For example, Attorneys Lambert and Carroll both repeatedly
suggested that their clients would invoke the Fifth Amendment
specifically for want of an immunity agreement regarding, on their
App. 90
credit, the Special Master and counsel for the Secretary
displayed admirable patience by humoring rather than
challenging many of these, not to mention
Commissioners Ulsh and Bunch’s dubious invocations
of the Fifth Amendment in response even to questions
the answers to which either were subject to judicial
notice or could not plausibly implicate them in criminal
behavior.
own account, the legally defensible conduct of inspecting their
voting equipment in furtherance of their statutory duties, because
there were “statements that are coming from [then-Attorney
General] Shapiro’s office they could potentially be charged with a
crime” for such conduct. N.T., 11/9/2022, at 23 (Attorney Lambert);
see id. at 49 (Attorney Carroll: “[Attorney] Wiygul used the term
conspiracy theorist today in court. And we all know that they are
saying that the Department of Justice and also our current
Attorney General are investigating people for criminal—alleged
criminal behavior based on their term election conspirator.”).
Attorney Carroll similarly asserted that “the DOJ has clearly set
up standards for what they are saying is prosecutable under their
investigations that are ongoing. They’ve made these statements
from the Department of Homeland Security and Department of
Justice, that would indicate that there is a high likelihood of a
potential—of criminal charges.” Id. at 50-51. Fulton County has
never provided any evidence that this is the case, or more
importantly that it applies to any of the conduct at issue in the
underlying litigation, even construed least favorably to the
Commissioners. Notably, this last quotation, as Attorney Wiygul
observed, came in defense of Commissioner Ulsh’s invocation of the
Fifth Amendment rather than authenticate the Voting System and
Management Services Agreement between Fulton County and
Dominion, the authentication of which could on no reasonable
account lead to criminal liability, even assuming the truth of
Fulton County’s unsubstantiated accounts regarding the
investigatory intentions and activities of the United States
Department of Justice, the Pennsylvania Office of the Attorney
General, and others.
App. 91
There are credible assertions that Attorney Carroll
was taking dictation from Attorney Lambert for
substantial periods of the hearing. And this appears to
have been an ad hoc work-around to avoid the intended
limiting effect of the Special Master’s denial of pro hac
vice admission to Attorney Lambert because Attorney
Carroll filed motions to admit her that manifestly
failed to conform to the applicable rules—twice. Neither
motion acknowledged the sanctions imposed upon
Attorney Lambert in the Michigan King litigation or
the disciplinary grievance registered by the judge in
that case, despite the fact that the governing rule
arguably requires the first and unequivocally requires
the second. And when repeatedly challenged on these
omissions, Attorneys Carroll and Lambert both
attempted to gloss over the omissions by noting
Attorney Lambert’s present good standing with the
Michigan bar.157
Having said all of the above, it hardly matters that
we could find further sanctionable conduct under
Pa.R.A.P. 4019 in Attorney Carroll’s management of
the underlying appeal. There, too, an unmistakable
pattern emerged. He repeatedly failed to acknowledge
this Court’s rules, orders, and directions in matters
both procedural and substantive. Most notably, he
never filed a supplemental brief on the jurisdictional
question that we deemed important enough to seek
157
Id. at 26 (Attorney Lambert: “I would just like to say that I’m
not disputing that I was grieved. I have not been disbarred or
disciplined by the State Bar of Michigan. In fact, I am in good
standing . . . . I absolutely agree that the [King] Court issued an
order that sanctioned me and a number of attorneys.”).
App. 92
argument on sua sponte—even after this Court, at his
request, forgave his first two failures to do so by
granting him another extension to the date he
requested. Worse still, in invoking his then-recent
formal entry of appearance in this Court as an excuse
for his various failures to satisfy his obligations before
this Court, he led this Court to believe that he had not
had time to come up to speed on the case. In omitting
to mention in late July that he had been special counsel
for the County since mid-April and had actively
engaged in the underlying litigation one month earlier,
he brazenly misled this Court about his ability to have
adhered to this Court’s orders. Alternatively, he had
ample time to recognize his limited capacity and to
associate additional counsel to ensure that none of the
“chainsaws” he was juggling would drop.158
In sum, we find that Attorney Carroll, both in
tandem with and also independently of his clients, is
guilty of relentlessly dilatory, obdurate, vexatious, and
bad-faith conduct before this Court and the Special
Master, especially, but not exclusively, during these
sanction proceedings. Consequently, it would be
inequitable that the County alone should bear the
Secretary’s costs. Attorney Carroll, too, should be
sanctioned in the form of joint and several
responsibility for the Secretary’s counsel fees during
158
Id. at 22 (Attorney Lambert, noting that “we’re juggling
chainsaws here” as an explanation for her failure to file a pro hac
vice petition at least three days before the November 9, 2022
hearing, two weeks after it was scheduled, three months after
Attorney Carroll entered his appearance in this Court, and more
than six months after her appointment by the County).
App. 93
the period for which he shares responsibility for the
misconduct.
We will not mark Attorney Carroll’s liability from
the December 17, 2021 inception of the protective order
litigation before he assumed the mantle of special
counsel. But the County’s contumacious conduct
occurred during Attorney Carroll’s tenure. Accordingly,
we find Attorney Carroll jointly and severally liable
with Fulton County for all costs and fees assessed in
favor of the Secretary and Dominion from April 13,
2022, the first full day after his and Attorney
Lambert’s appointment as special counsel for the
County, through the conclusion of these sanction
proceedings, including proceedings necessary to
determine the reasonable fees to which the Secretary
is entitled.159
159
While we held this matter under advisement, on November 18,
2022, the Secretary filed with the Special Master a petition
seeking counsel fees associated with the depositions that Attorney
Carroll and his client failed to facilitate consistently with the
Special Master’s direction and the Secretary’s notices. The County
did not oppose the petition. On December 29, 2022, the Master
issued an order granting the Secretary’s petition in the amount
specified. We adopt this order as our own, but consistently with
our imposition of joint and several responsibility for all counsel
fees after April 13, 2022, we modify it to make Attorney Carroll
jointly and severally liable for the amounts specified. We further
observe that the Special Master should take care not to incorporate
fees already awarded in calculating the larger award of counsel
fees on the referral associated with this Opinion. As well, this
award should not be held against Dominion, which, as set forth
below, is entitled to its own counsel fees associated with the
depositions.
App. 94
As well, we refer Attorney Carroll to the
Pennsylvania Attorney Disciplinary Board for further
examination of his conduct throughout the litigation of
the appeal of our stay order and throughout these
sanction proceedings. We neither urge nor assume any
particular disciplinary outcome. We opine simply that
Attorney Carroll’s conduct warrants the independent
review of his fellow practitioners.
D. Regarding
Lambert
Attorney
Stefanie
Attorney Lambert may be every bit as culpable as
Attorney Carroll, at least in the pattern of noncompliance that has led us to impose upon him joint
and several responsibility with the County. That said,
perhaps ironically, we must conclude that the failure
by the two lawyers to convince the Special Master that
Attorney Lambert should be admitted pro hac vice
precisely because she failed to satisfy the requirements
for applying for that status protects her from sharing
responsibility with Attorney Carroll and the County.
Had she gained admission, the result might have been
different.
But we are not powerless to call attention to
Attorney Lambert’s own role in the misconduct
highlighted above. In King, the judge referred Attorney
Lambert and co-counsel to disciplinary review both in
Michigan and anywhere else they were licensed.160 We
will do the same, transmitting a copy of this Opinion to
the Michigan Attorney Grievance Commission.
160
2021 WL 5711102, at *1 n.1.
App. 95
V.
Intervenor Dominion’s Application for
Costs and Fees
Shortly after the Special Master submitted her
Report to this Court, Dominion as intervenor filed an
application to recover its own costs associated with the
litigation of the protective order and all that has
followed. Dominion argues that it is entitled to recoup
its costs because the County’s initial retention of Wake
TSI to inspect the Dominion election equipment
violated its contractual rights, and because the
County’s later effort to enable an additional inspection
by Envoy Sage, as well as the ultimate inspection
conducted by Speckin in violation of this Court’s stay
burdened its own interests and necessitated costly
litigation, ultimately for naught. Although Dominion’s
interest lay in proprietary concerns rather than
election integrity, its own objectives somewhat aligned
with the Secretary’s, and so Dominion benefitted
equally from this Court’s protective order.
Consequently it, too, was prejudiced by the County’s
violation of the protective order.161
161
See Dominion’s Application for Costs and Fees at 18-19 (quoting
SMR at 63 ¶8) (“In granting an injunction pending appeal on such
narrow issues, the Supreme Court obviously intended to preserve
its ability to render an appellate decision that was meaningful.
And any subsequent inspection of the Dominion Voting Equipment
would moot out that appeal and prevent a meaningful resolution
of those issues on appeal. Those issues were Dominion’s right
to protect its property and the Secretary’s right to preserve
evidence for her defense, which both depended entirely upon
preventing further inspection of the Dominion Voting
Equipment.” (Dominion’s emphasis)).
App. 96
Fulton County filed a no-answer letter, offering no
rebuttal of Dominion’s claims. It is not our job to make
such arguments in the County’s stead, and we can
think of no distinction between the Secretary’s and
Dominion’s overarching interests in the County’s
compliance with our order.
Accordingly, we find that Dominion’s posture and
entitlement to sanctions is materially identical to the
Secretary’s, so Dominion also is entitled to recover its
counsel fees subject to the terms and limitations
described above. It, too, may recover its reasonable
counsel fees associated with the protection of the voting
equipment incurred since December 17, 2021, through
the conclusion of the instant sanction proceedings. And
it may seek to recover fees from April 13, 2021 forward
from the County and Attorney Carroll jointly and
severally.
VI.
The Effect of This Court’s Sanctions
Ruling Upon the Pending Appeal
Because we direct the impoundment of the voting
equipment implicated by the County’s Petition for
Review, effectuating the same result the Secretary
sought when it first asked the Commonwealth Court
for a protective order, the interlocutory appeal of the
Commonwealth Court’s denial of the protective order is
moot. Thus, neither the jurisdictional question it
presented nor the merits of the Secretary’s appeal
require further consideration. Accordingly, we dismiss
the Secretary’s appeal. We retain jurisdiction just as to
the sanction proceedings while they proceed to their
final resolution.
App. 97
VII.
Conclusion
As an independent and coequal branch of the
Commonwealth’s government, the judiciary is as
entitled to strict adherence to its mandates as the
General Assembly or the executive branch. When an
individual or a private or public entity deliberately
violates a court order, such violation constitutes a clear
and present danger to the effective function of the
judiciary, the orderly administration of justice, and the
rule of law. When such a violation passes without
consequences equal to its gravity, we can anticipate
violations of increasing frequency.
Furthermore, such violations not only threaten the
authority of the court, but also impose hardships and
prejudice upon the party or parties the court intended
to protect. This case illustrates the fact that the risk of
such harm is neither hypothetical nor abstract. The
County’s persistent efforts to surrender its machines to
third parties of dubious qualifications for audits of
unclear scope and intent impair resolution of the very
legal question the County sought to litigate in the first
place—potentially adversely to the Secretary’s ability
to mount a defense against the County’s allegations.
Furthermore, the extensive ancillary litigation these
actions forced the Secretary to undertake—beginning
with the initial efforts to protect the machines against
such incursions and continuing through these sanction
proceedings—were necessitated only by such efforts.
No remedy can undo the harm that the County’s
contempt caused its counterparties, nor can any
sanction un-compromise the ongoing litigation of the
County’s Petition for Review. The sanctions we impose,
App. 98
informed by the thorough, thoughtful, and persuasive
analysis of the Special Master, simply are the next best
thing. They will make the parties and their attorneys
whole for what proved to be time wasted on securing a
protective order that the County ultimately flouted in
categorical derogation of the order’s animating goal.
And we can hope that the sanctions will underscore for
the County, Attorney Carroll, and other observers that
they trifle with judicial orders and time-honored rules
and norms in litigation at their peril.
****
In summary, we dismiss the underlying appeal
because we find that the impoundment of the machines
to follow constructively grants the relief the Secretary
sought in that appeal. Regarding impoundment, we
direct the parties to confer and agree on a neutral
third-party escrow agent to take and retain possession
of the voting equipment until further order of court,
and we direct the Special Master to see that this task
is completed—and to appoint a neutral agent if the
parties cannot agree on one. The County is responsible
for all costs associated with the impoundment. Any
effort to seek access to, or release of, the voting
equipment must be directed to the Commonwealth
Court, specifically whoever is then presiding over the
County’s underlying Petition for Review against the
Secretary.
Finally, Fulton County shall compensate the
Secretary for all protective-order and sanctions-related
counsel fees in the Commonwealth Court and this
Court from December 17, 2021, forward. Attorney
App. 99
Carroll shall be jointly and severally responsible for
those fees from April 13, 2022, forward.
Assessing legal fees and the costs of litigation
requires a fact-intensive inquiry assisted by the
Secretary of State’s and Dominion’s submissions.
Accordingly, we return this case to President Judge
Cohn Jubelirer to collect and review the parties’
submissions, including the County’s disputes, if any, of
the amounts claimed. Once the Special Master has
completed this task, she will return to this Court
findings and recommended fee awards along with an
accounting of all relevant data and calculations
employed in the task, separating the counsel fees
incurred by the Secretary and Dominion between
December 17, 2021, and April 12, 2022, and those
incurred by each party thereafter.
The need for expedition in the calculation of fees is
perhaps not on par with what the sanctions review
itself called for. We trust that the Special Master will
fashion a schedule for all necessary proceedings that is
compatible with the needs of this case and her other
duties.162
Chief Justice Todd and Justices Donohue and
Dougherty join the opinion.
Justice Dougherty files a concurring opinion.
162
Inasmuch as we are calling on her services again, we take this
opportunity to thank President Judge Cohn Jubelirer for assuming
the considerable burdens this proceeding has presented with no
advance warning and on an abbreviated schedule, and for
answering the call vigorously and wit
This text is long and has been trimmed here. Open the source document for the complete record.
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.