Pennsylvania Cases November 13, 2020: In re LeFever

Case Description

ANSWER TO PETITION FOR RELIEF FOR INTERIM SUSPENSION WITH OR WITHOUT PAY

NOW COMES Magisterial District Judge Andrew T. LeFever, Respondent herein, by and through his counsel, Robert A. Graci and Saxton & Stump, and files this Answer to Petition for Relief for Interim Suspension With or Without Pay pursuant to Rule 703 of the Rules of Procedure of the Court of Judicial Discipline and, in support thereof, avers as follows: endorse

1. It is admitted that Article V, § 18(d)(2) of the Pennsylvania Constitution provides the Court of Judicial Discipline with the authority to impose interim suspension of a magisterial district judge, with or without pay, against whom the Judicial Conduct Board has filed formal charges.

2. Admitted.

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3. Denied as stated. It is admitted that the Board filed a Board Complaint against Judge LeFever alleging violations of the Rules Governing Standards of Conduct of Magisterial District Judges (RGSCMDJ) and the Article V, § 17(b) of the Pennsylvania Constitution on November 9, 2020, and that a copy of the Board Complaint is attached to the Board's Petition for Relief as "Exhibit A." Exhibit A is a writing that speaks for itself. Any attempt to explain or characterize its contents is denied.

4. Denied as conclusions of fact and law and argument requiring no response. It is denied that Judge LeFever was not entitled to file his nominating petitions and to be included on the 2019 Democratic and Republican municipal primary ballots. To the contrary, he was entitled to file his nominating petitions and to be included on the 2019 Democratic and Republican municipal primary ballots as was determined by then-President Judge Dennis Reinaker of the Lancaster County Court of Common Pleas who presided over a challenge to Judge LeFever's nominating petition and denied relief. A copy of the Petition to Set Aside Nominating Petition filed by Judge LeFever's primary election opponent is attached hereto as Appendix A. A copy of President Judge Reinaker's Order denying the petition is attached hereto as Appendix B.

5. Denied as conclusions of fact and law and argument requiring no response. By way of further response, In re Nomination Petition of Denick , 729

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A.2d 168 (Pa. Cmwlth. 1999), and Canon 4, Rule 4.1(A)(1) are written documents which speak for themselves. Any attempt to explain or characterize their contents is denied.

6. Denied as stated. It is admitted that Judge LeFever was a Committee Person in the Lancaster City Democratic Committee (LCDC) when he posted on his Facebook page that he was a candidate for the position of Magisterial District Judge on January 27, 2019, and that the Board's Complaint so alleges. See Exhibit A, p. 4, ¶ 6.

7. Denied as stated. It is admitted that Judge LeFever was a Committee Person in the LCDC when he engaged in various campaign activities from January 27, 2019 through March 11, 2019, when he resigned from the LCDC and that the Board's Complaint so alleges. See Exhibit A, pp. 5-6, ¶¶ 8-21.

8. Admitted.

9. Admitted. See Appendix A.

10. Denied as stated. The Petition to Set Aside Nominating Petition is a writing which speaks for itself. Any attempt to explain or characterize its contents is denied. It is admitted that the petition cited several rules from the RGSCMDJ and Denick .

11. Admitted.

12. Admitted.

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13. Admitted.

14. Denied as stated. It is admitted that President Judge Reinaker denied the Petition to Set Aside Nominating Petition filed by Judge LeFever's opponent, Mr. Kenneff. The Order issued by President Judge Reinaker does not provide his reasons for denying the petition. See Appendix B. It is believed, and therefore averred, that President Judge Reinaker's decision was based on the stipulated facts as well as the applicable law and, based thereon, properly concluded that Judge LeFever became a candidate on March 12, 2019 when he filed his nominating petitions. See Denick , supra . See also In re Nomination Petition of Leonard , 2017 Pa. Commw. Unpub. LEXIS 536 (Pa. Cmwlth. 2017) (refusing to strike name from ballot because person was not a candidate when she circulated nominating petitions for magisterial district judge; resigned as party committee person before filing her nominating petitions; and did not violate Rule 4.1(A)(1) of the RGSCMDJ); Tarpey v . Mosesso , 2015 Pa. Commw. LEXIS 959 (Pa. Cmwlth. 2015) (striking name from ballot because candidate resigned party committee person position only after filing nominating petitions in violation of Rule 4.1(A)(1) of the RGSCMDJ and 25 P.S. § 2937 of the Election Code; following Denick ); and Hanratty v . Litman , 2015 Pa. Comms. LEXIS 958 (Pa. Cmwlth. 2015) (same).

15. Denied as stated. It is admitted that LNP published an article and that the article is attached to the Board's Petition for Relief as "Exhibit B." The article

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is a writing that speaks for itself. Any attempt to explain or characterize its contents is denied. It is admitted that the article purports to quote President Judge Reinaker as stating: "In my opinion, he became a candidate when he filed his nominating petitions." This opinion attributed to President Judge Reinaker is entirely consistent with Denick , Leonard , Mosesso and Hanratty , supra .

16. Denied as stated. It is admitted that LNP published an article and that the article is attached to the Board's Petition for Relief as "Exhibit B." The article is a writing that speaks for itself. Any attempt to explain or characterize its contents is denied. It is admitted that the article purports to quote Judge LeFever and summarize comments he made, including that "he thought the ruling was 'appropriate'" and that "he was aware that he could not be on the committee while a candidate for district judge which was why he resigned when he did." Exhibit B, p. 1. That the article "indicates" anything is denied as improper conclusions of fact and law and argument requiring no response.

17. Denied as stated. It is admitted that LNP published an article and that the article is attached to the Board's Petition for Relief as "Exhibit B." The article is a writing that speaks for itself. Any attempt to explain or characterize its contents is denied. It is admitted that the article purports to quote Judge LeFever and summarize comments he made, including that "he thought the ruling was 'appropriate'" and that "he was aware that he could not be on the committee while

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a candidate for district judge which was why he resigned when he did." Exhibit B, p. 1. That the article "indicates" anything is denied as improper conclusions of fact and law and argument requiring no response.

18. Denied as stated. It is admitted that LNP published an article and that the article is attached to the Board's Petition for Relief as "Exhibit B." The article is a writing that speaks for itself. Any attempt to explain or characterize its contents is denied. It is admitted that the article purports to quote Judge LeFever as saying, "It's important that we have judges who understand the law and what's at stake for people in the community." Exhibit B, p. 1.

19. Admitted.

20. Denied as stated. The definition of "judicial candidate" found in the Terminology section of the RGSCMDJ is a writing which speaks for itself. Any attempt to explain or categorize it is denied as argument requiring no response. The Board's Petition for Relief accurately quotes the definition of "judicial candidate." The remainder of this averment is argument requiring no response. By way of further response, while several Commonwealth Court cases address challenges to nominating petitions based on a person being a candidate for magisterial district judge while serving as an officer of a political party and refer to Rule 4.1(A)(1) of the RGSCMDJ and the definition of "political organization" found in the Terminology section of the RGSCMDJ, none of those cases refer to the definition

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of "judicial candidate" found in the Terminology section. See In re Nomination Petition of Leonard , 2017 Pa. Commw. Unpub. LEXIS 536 at 4 (Pa. Cmwlth. 2017) (Terminology section of RGSCMDJ defines "political organization" to include "political party"); Tarpey v . Mosesso , 2015 Pa. Commw. LEXIS 959 at 8 (Pa. Cmwlth. 2015) (same); and Hanratty v . Litman , 2015 Pa. Comms. LEXIS 958 at 9 (Pa. Cmwlth. 2015) (same).

21. Denied as conclusions of law and argument requiring no response. By way of further response, in Mayer v . Hemphill , the person whose candidacy was in question was determined to be a candidate only after he filed his nominating papers and publicly announcing his candidacy for the office of Mayor of Philadelphia. Id ., 190 A.2d at 451 (emphasis added). The Commonwealth Court in In re Nomination Petition for Leonard , 2017 Pa. Commw. Unpub. LEXIS 536 (Pa. Cmwlth. 2017), addressed a challenge to nominating petitions filed by a person seeking the office of magisterial district judge on the ground that she violated the proscription of Rule 4.1(A)(1) by gathering signatures on her petitions for MDJ before resigning as a member of the local Democratic committee. An identical allegation is leveled against Judge LeFever. See , e . g ., Petition for Relief, p. 2, ¶ 7; and Exhibit A, p. 6, ¶¶ 18 and 19. In Leonard , the Commonwealth Court rejected the objectors' argument that an MDJ candidate was a "'candidate' under applicable law during circulation" of her nominating petitions which occurred before she resigned as a

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committee person. The Court, citing Rule 4.1(A)(1), stated: "Objectors misstate the law when they assert that an individual circulating nomination petitions is a 'judicial candidate' under Rule 4.1(A)(1) who may not also hold an office. To the contrary, an individual becomes a candidate for office upon filing the nomination petitions." Id . at 5. After citing Mayer v . Hemphill and quoting McMenamin v . Tartaglione , 590 A.2d 802, 810 (Pa. Cmwlth. 1991), and its explanation that "the Mayer Court 'opined that one becomes a candidate if he or she has filed nomination papers or announced his [or her] candidacy for office,'" Leonard explained that "[u]ntil nomination petitions are filed, an individual is only a potential candidate, who may or may or may not successfully meet the criteria for nomination." Id ., at 6. The Leonard Court then stated: "Applicable law holds that a judicial candidate violates Rule 4.1(A)(1) if she has not resigned her office as of the time of filing." Id . For this proposition, Leonard cites In re Nomination Petition of Denick , 729 A.2d 168 (Pa. Cmwlth. 1999), and Tarpey v . Mosesso , 2015 Pa. Commw. LEXIS 959 (Pa. Cmwlth. 2015). Leonard , supra , at 6. In both Denick and Mosesso , the magisterial district judge candidates had not resigned their positions as party committee persons when they filed their nominating papers for the judicial positions they sought, and their names were stricken from the ballot. Leonard , at 6. Again referring to Rule 4.1(A)(1), the Leonard Court

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explained: "Stated differently, candidates are not permitted to hold other party offices at the time of filing their nominating petitions." Id .

Instantly, the Board pleads that Judge LeFever resigned from the LCDC on March 11, 2019, the day before he filed his nominating petitions to get on the ballots as a candidate for Magisterial District Judge. See Petition for Relief, p. 3, ¶ 13. See also , Exhibit A, Board Complaint, p. 6, ¶ 22. It is further noted that while Leonard , Mossesso and Litman are single-judge opinions from the Commonwealth Court, under Rule 126 of the Rules of Appellate Procedure, since each of these opinions was reported after October 1, 2013, they were binding precedent in the nominating petition challenge before Judge Reinaker as that was "an election law matter." Pa.R.A.P. 126(c)(1). As to the Court of Judicial Discipline, these opinions are, at best, persuasive but not binding. See Pa.R.A.P. 126(c)(2).

President Judge Reinaker was bound to follow these pronouncements and deny the petition filed by Mr. Kenneff since Judge LeFever had resigned as a committee person before he filed his nominating petitions. It was not unreasonable in light of this precedent for Judge LeFever and anyone else contemplating running for the office of Magisterial District Judge to look to these decisions from the Commonwealth Court which addressed challenges based on Rule 4.1(A)(1) of the RGSCMDJ, rather than Mayer v . Hemphill which addressed when an elected official was a candidate and barred from running for another office under the

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dictates of the Philadelphia Home Rule Charter. As Judge LeFever was properly on the ballot for the position of Magisterial District Judge, was duly elected by a majority of the votes cast for that position, and is accused of no criminal conduct or on-bench or other conduct during his service as Magisterial District Judge, his interim suspension, either with or without pay, during the pendency of the Board Complaint is unwarranted and would be an abuse of this Court's constitutional discretion. See, e . g ., In re Joy , 2 JD 2016 (magisterial district judge suspended without based on filing of felony charges against him); In re Jennings , 4 JD 2014 (magisterial district judge suspended without based on filing of felony charges against him); In re Roca , 14 JD 2015 (judge suspended without pay based on complaint asserting improper ex parte communications); In re Segal , 3 JD 2015 (same judicial duty-related conduct); In re Dougherty , 1 JD 2016 (magisterial district judge suspended without based on filing of felony charges against him); In re Hladio , 3 JD 2017 (magisterial district judge suspended with pay based on allegations of retaliation against co-workers, including constables, and those appearing in court); In re Tranquilli , 4 JD 2020 (judge suspended without pay for use of racial epithets in court proceedings); In re Cabry , 5 JD 2020 (magisterial district judge suspended without based on filing of felony charges against him); and In re Schechterly , 6 JD 2020 (magisterial district judge suspended without based on filing of felony charges against him). Compare In re Maruszczak , 1 JD

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2018 (no suspension of magisterial district judge accused of campaign-related misconduct).

22. Denied as stated. The definition of "candidate" found in the Election Code is a writing which speaks for itself. Any attempt to explain or categorize it is denied. The Board's Petition for Relief accurately quotes the definition of "candidate" as set forth in the Election Code. By way of further response, the definition of "candidate" in the Election Code applies only to matters arising under the Election Code. See 25 P.S. § 2602 ("[t]he following words, when used in this act , shall have the following meanings ...;" emphasis added). The Election Code's definition of "candidate" and has no relevance to proceedings before this Court when applying the proscriptions of the RGSCMDJ.

23. Denied as conclusions of law and argument requiring no response. Moreover, the opinions in Denick , Mayer and Tartaglione are writings which speak for themselves. Any attempts to explain or characterize their contents are denied as argument requiring no response. Furthermore, neither Mayer nor Tartaglione involved ballot challenges to candidates for magisterial district judge or application of the RGSCMDJ, but instead addressed when a public official in Philadelphia was a candidate for another elected position under the Philadelphia Home Rule Charter.

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24. Denied as conclusions of law and argument requiring no response. Moreover, the opinion in Denick is a writing which speaks for itself. Any attempts to explain or characterize its contents are denied as argument requiring no response.

25. Denied as conclusions of fact and law and argument requiring no response. By way of further response, the decisional law of the Commonwealth Court interpreting and applying the proscriptions of Rule 4.1(A)(1) of the RGSCMDJ as recited above was properly applied by then-President Judge Reinaker when deciding and denying a ballot challenge to Judge LeFever's candidacy and Judge LeFever properly relied on those decisions when deciding when he had to resign as a committee person. Assuming, arguendo , that he was mistaken in his interpretation of Rule 4.1(A)(1) and the definition of "judicial candidate" as found in the Terminology section of the RGSCMDJ, that interpretation was nevertheless not unreasonable under the circumstances and his suspension from his judicial duties based on that interpretation would be an abuse of this Court's constitutional discretion when compared to those other cases where the Court of Judicial Discipline has ordered interim suspensions. See ¶ 21, above (listing representative interim suspension cases).

26. Denied as conclusions of fact and law and argument requiring no response. By way of further response, the decisional law of the Commonwealth

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Court interpreting and applying the proscriptions of Rule 4.1(A)(1) of the RGSCMDJ as recited above was properly applied by then-President Judge Reinaker when deciding and denying a ballot challenge to Judge LeFever's candidacy and Judge LeFever properly relied on those decisions when deciding when he had to resign as a committee person. Assuming, arguendo , that he was mistaken in his interpretation of Rule 4.1(A)(1) and the definition of "judicial candidate" as found in the Terminology section of the RGSCMDJ, that interpretation was nevertheless not unreasonable under the circumstances and his suspension from his judicial duties based on that interpretation would be an abuse of this Court's constitutional discretion when compared to those other cases where the Court of Judicial Discipline has ordered interim suspensions. See ¶ 21, above (listing representative interim suspension cases). Moreover, as explained above, in Leonard , supra , the Commonwealth Court rejected the objectors' argument that an MDJ candidate was a "'candidate' under applicable law during circulation" of her nominating petitions which occurred before she resigned as a committee person. The Court, citing Rule 4.1(A)(1), stated: "Objectors misstate the law when they assert that an individual circulating nomination petitions is a 'judicial candidate' under Rule 4.1(A)(1) who may not also hold an office. To the contrary, an individual becomes a candidate for office upon filing the nomination petitions." Id ., 2017 Pa. Commw. Unpub. LEXIS 536 at 5.

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27. Denied as conclusions of fact and law and argument requiring no response. Paragraphs 25 and 26, above, are incorporated herein by reference as though set forth in full.

28. Denied as conclusions of law and argument requiring no response. Paragraphs 25 and 26, above, are incorporated herein by reference as though set forth in full.

29. Denied as conclusions of law and argument requiring no response. Paragraphs 25 and 26, above, are incorporated herein by reference as though set forth in full.

30. Denied as conclusions of law and argument requiring no response. Paragraphs 25 and 26, above, are incorporated herein by reference as though set forth in full.

31. Denied as stated and as conclusions of fact and law and argument requiring no response. Paragraphs 25 and 26, above, are incorporated herein by reference as though set forth in full. By way of further response, it is admitted that discipline of Judge LeFever under the Pennsylvania Constitution for campaign activity in violation of the RGSCMDJ remains available to protect and maintain the legitimacy and integrity of the judiciary if the Board proves its allegations against Judge LeFever to the satisfaction of this Court by clear and convincing evidence. Pa. Const., Art. V, § 18(d)(5). None of the campaign related allegations

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made by the Board have any bearing on the way in which Judge LeFever has comported himself both on and off the bench since being installed on January 2, 2020. He won his election in 2019 after his candidacy was challenged on much the same ground as asserted by the Board and the challenge was rejected by a judge applying settled law. Suspending Judge LeFever will deny the people of his district of his services despite the fact that none of his conduct shows any impropriety in the handling of the business coming before his court and will cause other magisterial district judges to have to cover Judge LeFever's duties. That he may have acted to endorse non-judicial candidates while serving as a committee member of the LCDC before he resigned as a committee member and filed his nominating petitions based on his understanding of the RGSCMDJ and the precedent recited above does not undermine confidence in the independence, integrity or impartiality of the judiciary.

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WHEREFORE, it is respectfully requested that this Honorable Court schedule a hearing or argument on the Petition for Relief for Interim Suspension and, for the reasons stated herein, deny the petition.

Respectfully submitted,

/s/ _________
Robert A. Graci, Esquire
Supreme Court ID No. 26722
Saxton & Stump, LLC
4250 Crums Mill Road
Harrisburg, Pa 17112
Phone: 717-216-5511
Cell: 717-585-3684
Fax: 717-547-1900
rag@saxtonstump.com

Date: November 13, 2020

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