IN RE: Nomination Petition of Michael W. BEYER (2015)

OPINION

In response to the pressing time demands of this primary election appeal, we entered a per curiam order on an expedited basis vacating the order of the Commonwealth Court and directing that Appellee Michael W. Beyer's name be stricken from the primary ballot for the Democratic Party nomination for the Office of Representative in the General Assembly for the 131st Legislative District. See In re Nomination Petition of Beyer, 91 A.3d 1231 (Pa.2014). In the per curiam order, we stated that an opinion would follow, and we now augment the brief explanation appearing in our original mandate.

The Election Code, 25 P.S. § 2600 et seq., vests discretion in courts to amend a material defect apparent on the face of nomination petitions unless the defect manifests the candidate's intent to mislead electors. See In re Nomination Petitions of McIntyre, 778 A.2d 746, 751 (Pa.Commw.Ct.2001) aff'd sub nom. In re McIntyre, 564 Pa. 670, 770 A.2d 326 (Pa.2001) (holding wrongful intent precludes amendment). Here, Mr. Beyer circulated nomination petitions listing his present occupation as “lawyer” when he was a law school graduate neither authorized to practice law in any jurisdiction nor working with the law in any capacity. Deeming his description of occupation both materially defective and issued with the knowledge it could mislead electors as to his credentials for the office of lawmaker, we held the defect ineligible for amendment and precluded Mr. Beyer's access to the ballot.

The record reveals that Michael W. Beyer timely filed nomination petitions with the Department of State seeking placement of his name on the ballot for Democratic Nomination for the Office of Representative in the General Assembly for the 131st Legislative District. Appellant Objectors, qualified electors residing in the 131st Legislative District, filed in the Commonwealth Court a petition to set aside the nomination petition on grounds that Mr. Beyer intentionally misrepresented his occupation as “lawyer” on both his Statement of Financial Interests (SOFI) and nomination petitions.¹

Judge Renée Cohn Jubelirer presided over the matter and conducted a hearing on April 11, 2014. At the hearing, Mr. Beyer confirmed he had graduated law school in May of 2013 but had yet to pass or even take any state's bar examination. Consequently, he was not licensed to practice law at the time he circulated his nomination petitions. He listed his occupation as “lawyer,” he said, because he understood the definition of “lawyer” as found in the Oxford English Dictionary to include someone who studied the law. In addition, Mr. Beyer believed “occupation” meant “profession,” and because he understood ‘lawyer’ to mean someone who studies the law, he considers his profession to be that of a lawyer.” In re Nomination of Beyer, (Pa. Commw., 150 M.D.2014, filed April 17, 2014) at 3. He therefore thought it fair comment to describe his profession or occupation as “lawyer” on his nomination petition.²

Mr. Beyer testified that he never meant to imply he was a licensed, practicing lawyer, and he thus denied possessing the intent to deceive the electorate with his statement of occupation. In support of this testimony, Mr. Beyer alluded to a newspaper article that reported he was a law school graduate without suggesting he was licensed or practicing. In no personal dealing did he claim licensure or any other eligibility to practice law or represent clients in Pennsylvania, Mr. Beyer further testified. When electors asked him about his listed occupation, Mr. Beyer elaborated appropriately, he contended.

Drawing extensively from the rationale employed in a single-judge Commonwealth Court decision in In re Nomination Petition of Guzzardi (Pa. Commw., No. 158 M.D.2014, filed April 15, 2014), a decision we subsequently reversed on unrelated grounds, see infra, the Honorable Renée Cohn Jubelirer determined that Mr. Beyer's statement of occupation did not amount to a defect on the face of the petition. The term “lawyer,” she held, fairly includes those learned in the law though not licensed to practice the law, and the term “occupation” includes “one's profession, particularly one that requires extensive training, regardless of whether one is actually active in that profession.” Beyer, 150 M.D.2014 at 3 (quoting Guzzardi, supra at 22).

Judge Cohn Jubelirer further opined that even if the statement of occupation were a misrepresentation, the resultant defect was not material to the nomination process because “[c]andidate credibly testified that he had no intention to deceive the electorate.” Id. at 12.³ Though she found that he likely used the title of “lawyer” to “enhance his stature with the electorate,” she accepted his explanation that he believed his having studied law and graduated law school in the past, alone, entitled him to claim the occupation. Id. Further probative of intent, the opinion continued, was that Mr. Beyer “explained [his use of the title ‘lawyer’] to an elector when the opportunity arose,” and the newspaper article identifying him as a law school graduate without implying he was licensed to practice law. Id. at 12–13. Accordingly, Judge Cohn Jubelirer concluded that the evidence would have dispelled concerns of wrongful intent so as to permit amendment under sections 976 and 977 (described more fully, infra ) of the Election Code had the court found a defect in the first place. This timely appeal to our direct appellate jurisdiction followed.

Appellant Objectors contend the Commonwealth Court erred in failing to find that Mr. Beyer's self-designation as a lawyer-by-occupation represented a material defect borne of the intent to mislead the electorate. In reviewing an order adjudicating challenges to a nomination petition, our standard of review permits reversal only where the findings of fact are unsupported by substantial evidence, where there was an abuse of discretion, or where an error of law was committed. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327, 331 (Pa.2001). Moreover, in reviewing election issues, we must consider the longstanding and overriding policy in our Commonwealth to protect the elective franchise. In re Nomination Petition of Driscoll, 577 Pa. 501, 847 A.2d 44 (Pa.2004). In promoting that policy, this Court has made clear that the Election Code must “be liberally construed to protect a candidate's right to run for office and the voters' right to elect the candidate of their choice.” Id. at 49. Nevertheless, the policy of liberally reading the Code cannot be distorted to emasculate the requirements necessary to assure legitimate nomination papers. In re Farnese, 609 Pa. 573, 17 A.3d 375 (Pa.2011); McIntyre, 778 A.2d at 751.

Provisions of the Election Code relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities, but are necessary measures to prevent fraud and to preserve the integrity of the election process. Farnese, supra. A party alleging defects in a nominating petition has the burden of proving such defects, as nomination petitions are presumed to be valid. In re Nomination Petition of Gales, 618 Pa. 93, 54 A.3d 855 (Pa.2012).

We address first whether Mr. Beyer's statement of occupation/profession represented a defect apparent on the face of his petition.⁴ As the General Assembly did not define either “occupation” or “profession” as those terms appear in the Election Code, we set out to construe them “according to the rules of grammar and according to their common and approved usage[.]” 1 Pa.C.S. § 1903(a).

One way to ascertain the plain meaning and ordinary usage of terms is by reference to a dictionary definition. Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898, 909 (Pa.2011). As noted by the court below, the Oxford English Dictionary defines a “lawyer” as “[a] person who practices or studies law; an attorney or a counselor.” The same dictionary, however, defines a “profession” as “[a] paid occupation, especially one that involves prolonged training and a formal qualification,” and assigns a principal definition to “occupation” as “[a] job or a profession.” A “job,” in turn is defined as “[a] paid position of regular employment.” In accordance with these definitions,⁵ the “occupation or profession of lawyer” for purposes of a nomination petition would comprise not only completion of prolonged training in law school but also acquisition of a formal qualification to practice law, which, in this Commonwealth, entails receiving a license to practice.

Formal reference sources discussing the scope of the occupation or profession of lawyer are scarce, but a survey of Pennsylvania's Rules of Professional Conduct⁶ shows they presuppose a “lawyer,” as that term is used therein, to be one licensed to practice law. This point is perhaps best exemplified in Rule 5.3, “Responsibilities Regarding Nonlawyer Assistance,” which addresses the responsibilities assumed by lawyers who employ or retain “nonlawyer assistance” in their practices. Insightful for our purposes is that Rule 5.3 designates law students as “nonlawyers,” regardless of their learned status and years of intense legal training. Indeed, no rule of professional conduct promulgated by this Court prescribing the conduct, duties, or responsibilities of “lawyers” includes a provision devoted to law school students or graduates who have yet to receive their formal license to practice.

During the hearing below, evidence of informal attitudes or common understandings was likewise scarce, but Mr. Beyer's own testimony describing his interactions with electors lent insight into what he believed electors would expect of one claiming the occupation of lawyer. Specifically, his testimony revealed how electors' mere observation of his stated occupation prompted him in all candor to offer a virtual retreat from the statement.

Q: You said people asked you—some of the people when you were getting signatures asked you about what you listed, lawyer, correct?

A: So, people would say—you know, they would look at the petition, and they would say, “Hey I see you're a lawyer,” and I would say, “Oh, you know, I haven't passed the bar yet, but I plan on taking it sometime in the next year.”

N.T. 4/11/14 at 56. This response indicates Mr. Beyer, himself, readily differentiated a lawyer from a law school graduate yet to take the bar, and suggests he believed electors would likely hold the perception that being engaged in the present “occupation or profession of lawyer” means actually working, or at least being eligible to work, as a lawyer in the ordinary course of one's professional life.⁷

In this respect, former Chief Justice Castille's concurring opinion in In Re: Nomination Petition of Guzzardi, 99 A.3d 381 (Pa.2014) is most salutary in delineating the difference between a lawyer and a prospective lawyer in the context of stating one's present occupation on a nomination petition. In Guzzardi, a gubernatorial candidate described his occupation as a “semi-retired businessman and lawyer” on his nomination petition and SOFI. In fact, though Mr. Guzzardi had practiced law for approximately forty years, he had assumed an inactive status for some period prior to and including the time he completed his petition. Of the five justices voting to strike Mr. Guzzardi's petition as fatally defective under the Public Official and Employee Ethics Act⁸ because it was untimely filed, two amplified that they would have also deemed it disqualifying for a candidate on inactive status with the Pennsylvania Bar to describe himself as a “semi-retired lawyer,” a title that would lead the electorate to believe falsely that he still practiced law part-time.

In authoring his concurring statement, then-Chief Justice Castille incorporated his prior dissent in In re Rankin, 583 Pa. 38, 874 A.2d 1145, 1145–48 (Pa.2005),⁹ a case involving an inactive status candidate who listed her current occupation as “attorney/publisher”:

Words are a lawyer's standard in trade, and lawyers should be held to their meaning. A former occupation is not a current occupation. A conditional or equivocal status is not an unequivocal one ․ What respondent viewed as an “explanation” of her conduct at the hearing below, properly understood, was a confession.

Rankin, Id at 1148 (Castille, J., dissenting) (citations omitted, emphasis added).

Applying this rationale to the “slightly different” facts of Guzzardi, the concurrence stated that “[a]s all Pennsylvania lawyers know, there is no ‘semi-retired lawyer’ status for members of the Pennsylvania Bar; attorneys are either active or inactive.” Guzzardi, supra at 389 (Castille, J. concurring). There was no reason to expect, the concurrence concluded, that electors who signed Guzzardi's petition would have understood the meaning of the ambiguous term “semi-retired” as it related to one's status with the Pennsylvania Bar. Id.

This rationale speaks to the statutory purpose behind the requirement that a candidate supply for the benefit of electors his present occupation or profession, and it dovetails with our reasons cited above for declaring the petitions defective in the case sub judice. Mr. Beyer described himself on the nominating petition as engaged in the present occupation of lawyer when his actual status was that of law school graduate not yet eligible to practice law. While the Oxford Dictionary may include within its definition of “lawyer” one who studies the law, a lawyer's professional or occupational role in society transcends his prior studies in law school. The term “lawyer” as used to describe one's occupation or profession for purposes of the Election Code is not an abstraction, and its scope should not expand so far as to include those who may wish to practice professionally in society but are not yet authorized to do so under our laws; a prospective occupation is not a current occupation. Accordingly, we deemed Mr. Beyer's statement of occupation appearing on his nomination petitions defective.

The defect, moreover, manifested both a material and knowing misrepresentation so as to preclude the possibility of amendment and require that the petitions be set aside. In so deciding, we reversed the order of the Commonwealth Court.

According to section 977 of the Election Code, where a court finds that a nomination petition is defective pursuant to the provisions of section 976, the petition shall be set aside. See id. § 2937. Meanwhile, section 976 of the Election Code provides that “[n]o nomination petition, nomination paper or nomination certificate shall be permitted to be filed if ․ it contains material errors or defects apparent on the face thereof, or on the face of the appended or accompanying affidavits.” Id. § 2936. Notably, section 977 also provides, however, that where “objections relate to material errors or defects apparent on the face of the nomination petition or paper, the court, after hearing, may, in its discretion, permit amendments within such time and upon such terms ․ as the court may specify.” Id. § 2937.

Driscoll, supra at 49. Under its own jurisprudence, the Commonwealth Court has deemed defects “material” when they have the potential to mislead an elector. See In re Ford, 994 A.2d 9 (Pa.Commw.2010); In re Nomination Petition of Delle Donne, 779 A.2d 1 (Pa.Commw.2001), aff'd 565 Pa. 561, 777 A.2d 412 (Pa.2001). Only where a candidate intended to mislead the electorate, however, is such a material misrepresentation grounds to preclude amendment of the nomination petition. See Driscoll, supra at 50–51(citing State Ethics Comm'n v. Baldwin, 498 Pa. 255, 445 A.2d 1208 (Pa.1982)).

During the hearing below, Mr. Beyer asserted he did not intend to deceive the electorate about his occupation, and the Commonwealth Court credited that testimony. Our restrictive standard of review as cited above permits us to revisit this aspect of the court's decision if, inter alia, it is unsupported by substantial evidence. The court predicated its inference of the candidate's intent on two findings of fact: first, that Mr. Beyer sincerely believed he could properly call himself a lawyer, and, second, that he clarified any potentially misleading aspect to his petition when the opportunities to do so arose. We discern the first predicate regarding the candidate's beliefs to be beside the essential point of whether he knew his petition as worded would likely mislead electors, and we discredit the second as belied by the substantial evidence of record.

Even accepting as the Commonwealth Court did that Mr. Beyer sincerely believed there was a place for “one who studies the law” within the definition of a “lawyer,” his own testimony revealed that he nevertheless knew his written statement of occupation held the potential to mislead electors. This is the critical point, as it was in this manner that his conduct met the scienter requirements for petition invalidation as expressed in Baldwin and its progeny. Specifically, responding to electors who observed “[s]o, you're a lawyer?” with “[o]h, you know, I haven't passed the bar yet but I plan on taking it next year” reflected an understanding that his usage of the term did not fit within society's general idea of what a lawyer is. Indeed, his prepared response was the functional equivalent of an admission that he was not yet a lawyer as most electors would understand the term, and would not become one until such time that he passed the bar examination. Apparent in his own testimony, therefore, was his appreciation that electors would likely expect more of a “lawyer by occupation or profession” than having simply graduated law school. The Commonwealth Court seems to have identified this concern when it found the Candidate used the term “lawyer” to “enhance his stature” among electors. In re Beyer, supra at 12. To the extent the candidate knowingly used the term to suggest a professional status he had yet to attain, we agree. Mr. Beyer, through his statement of occupation, implied credentials material to the office of legislator that he simply did not yet possess.¹⁰ Yet, he persisted in circulating a nomination petition that he knew could mislead in this respect.

From the same testimony, however, the Commonwealth Court inferred the absence of wrongful intent because it showed, in the court's opinion, that Mr. Beyer “explained [his use of the title ‘lawyer’] to an elector when the opportunity arose[.]” Id. at 12. Neither relevant authority nor the evidence of record supports the above premise that an opportunity to provide clear information about a candidate arises only when an elector broaches the topic. The court's position on this point contradicts our jurisprudence recognizing the important role that accurate nomination petitions play in achieving the Election Code's goal of an informed electorate freely supporting a candidate of their choice. See Driscoll, supra at 50. Every presentment of a petition for signature, therefore, represented an opportunity for Mr. Beyer to identify clearly his occupation, and the candidate knew his petition would likely promote misinformation on that very point. Yet, he implemented an “explain only if asked” approach. By neglecting this critical aspect of the record, the Commonwealth Court erroneously overlooked the many electors deprived of the benefit of Mr. Beyer's sporadic and strictly reactive clarifications.¹¹

Evidence that a newspaper article identified him correctly as a recent law school graduate was likewise of dubious probity to the issue of intent, moreover, where the record indicates the report failed to address the topic of his occupation any further. That the candidate did not overtly claim or suggest he was a practicing lawyer in the article did not clarify for electors that he was, in fact, ineligible to practice. Consequently, the article left open to readers' speculation the matter of whether the candidate was eligible to practice law, and as such had little if any bearing on the misleading nature of the petitions.¹²

The court's inference of the candidate's intent, therefore, finds support in neither the evidentiary record nor relevant authority. The substantial evidence adduced at the hearing established that Mr. Beyer knew his statement of occupation held the potential to mislead electors about his credentials for the office of lawmaker. While he mitigated that potential in several isolated instances, the necessary implication of the evidence is that many electors remained uninformed by any clarification.

Based on the foregoing, we concluded that Mr. Beyer's nomination petitions bore a facial defect, as he was not yet qualified to claim the present occupational or professional status of “lawyer.” The defect was both material to an elector's decision to nominate a legislator and incurable by amendment because the candidate knew his representation had the potential to mislead signers about his credentials for the legislative office he sought. Having demonstrated as much, Objectors met their burden of disproving the presumptive validity of the contested nomination petition. Striking Mr. Beyer's petition under such circumstances to avoid misleading the electorate was consistent with the Election Code's purpose of protecting, and not defeating, a citizen's vote. See Dayhoff v. Weaver, 808 A.2d 1002, 1006 (Pa.Commw.2002). Accordingly, we issued our above-referenced per curiam order vacating the order entered in the Commonwealth Court and setting aside Mr. Beyer's nomination petitions.

Former Chief Justice Castille and former Justice McCaffery did not participate in the consideration or rendering of this opinion.

DISSENTING OPINION

I respectfully dissent for the reasons set forth in my dissenting statement to the per curiam order striking Michael W. Beyer from the primary ballot for the Democratic Party nomination for the Office of Representative in the General Assembly for the 131st Legislative District. In re Nomination of Michael Beyer, 91 A.3d 1231 (Pa.2014).

To reiterate, I find it reasonable for this Court to rule prospectively that a candidate may only designate his occupation or profession as “lawyer” on nomination papers after he or she has graduated from law school, passed the bar exam, and is in good standing as an active member of the Pennsylvania Bar. However, at the time Candidate Beyer filed his nomination papers, neither a majority of this Court nor the Commonwealth Court had ever made such an express declaration. Notably, the opinions the majority finds persuasive in support of its determination that Candidate Beyer intentionally made a material misrepresentation are concurring opinions of Former Chief Justice Castille in In re Rankin, 583 Pa. 38, 874 A.2d 1145 (Pa.2005), and In re Nomination Petition of Guzzardi, 99 A.3d 381 (Pa.2014). These cases, however, involved election matters where the candidate was not removed from the ballot based on any misrepresentation of the candidate's occupation. Thus, in my view, they cannot serve as affording candidates clear notice of what constitutes the occupation of “lawyer” for purposes of the Election Code.

In the instant case, the Commonwealth Court made a specific factual finding that Candidate Beyer had no intent to deceive the electorate by listing his occupation as “lawyer,” but rather believed that he was a lawyer because he had studied law and graduated from law school. The Commonwealth Court further relied upon Candidate Beyer's candor in a newspaper interview, where he acknowledged readily that he was a recent law school graduate who had not yet taken the bar exam. Absent intent to deceive the electorate or a violation of a clear legal directive prohibiting him from representing his occupation as a “lawyer” upon graduation from law school, I cannot join the majority's holding that Candidate Beyer committed a knowing and material misrepresentation warranting the striking of his name from the ballot.

Justice STEVENS.

Chief Justice SAYLOR, Justice EAKIN and Justice TODD join the opinion. Justice BAER files a dissenting opinion.