Brady Decision Gives Appellate Courts a Chance to Clarify

Philadelphia politics, while not always productive for the city’s general good, is always entertaining. That was certainly the case the past few weeks regarding the legal battle over whether city Democratic party chief Bob Brady should be bounced from the mayoral race because he failed to disclose a city pension on his statement of financial interests.
Despite the amusing show, the Brady case has the potential to do a real service to the city and the election system in Pennsylvania.

I was amused when I read that Brady’s lawyer, Stephen A. Cozen of Cozen & O’Connor, said the decision by Luzerne County Senior Judge Patrick J. Toole, Jr. – the out-of-town judge who presided over the case – allowing Brady to stay on the ballot didn’t “suck.”

As a matter of fact, Steve, you’re right: it didn’t. It’s actually quite good.

Why? Primarily because of two things: Toole’s acknowledgment that the law in this area is vague and the deference he shows towards voters.

For instance, Toole pointed out the no one – not the legislature, the appellate courts, or the Ethics Commission – has defined what a “governmentally mandated payment” is.

In other sections Toole hints at the fact that courts have been inconsistent when it comes to the issue of candidates getting removed from ballots based on alleged financial statement disclosure irregularities. It’s something reporter Asher Hawkins pointed out in his March 22 story “Brady Case Highlights Confusion That Exists In Election Law Cases.”

More importantly, Toole had this to say about the role the courts play in election cases: “We believe, whenever possible, election contests should be decided by the hand of the voter in the election booth and not by the pen of a judge in a judicial chamber.”

I couldn’t agree more. I don’t think the increased involvement of lawyers and the courts in the electoral process, particularly who gets to remain a candidate and who does not, is a good thing.
One of the negative effects is that it makes the courts appear more political, even if all they are doing are deciding cases assigned to them.

Toole’s comments throughout the opinion – such as in his last footnote in which he suggests the Ethics Act could be amended “as a matter of course” to allow candidates to make amendments to their financial statements – as well as his reasoning, appeared to be setting the stage for either the legislature or an appellate court to provide some concrete guidance on these issues.
In the meantime, Toole seemed to be saying that given the lack of clarity and conflicting opinions, it’s a close call, and when it’s a close call, the courts should lean toward keeping a candidate on the ballot.

“The fatality or fatal error rule which only applies to candidates has been criticized by judges on every level of our judicial system,” Toole wrote in his last footnote. “To strike the candidacy of a person is a harsh and drastic penalty.”

So now the case will go to the Commonwealth Court, or if Brady’s lawyers get their way, the state Supreme Court. Despite some suggestions to the contrary in other media outlets, that’s frankly where this case belongs anyway. Hopefully the appellate courts will use the case to provide some clear-cut rules and guidance in this area.

–Hank Grezlak, Editor-in-Chief

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