IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Nomination Petition of : Caroline Turner Candidate for : Judge of Municipal Court, : First Judicial District of Pennsylvania, : Democratic Party :

: No. 138 M.D. 202 3 Objection of: Esther Jones : Heard: March 20 , 202 3

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION

BY JUDGE FIZZANO CANNON FILED : March 21, 2023

Before the Court is the Petition to Set Aside Nominating Petition

( Objection Petition ) of Esther Jones (Objector) seeking to set aside the N ominat ion

Petition of Caroline Turner (Candidate) to appear on the ballot in the General

Primary Election to be held on May 16, 2023, as a candidate for the Democratic

nomination for the office of Judge of Municipal Court, First Judicial District of

Pennsylvania (Office)

. Objector alleges that the Nomina tion Petition is insufficient

because it does not contain a notarized affidavit as required by Section 910 of the

Election Code, 1 25 P.S. § 2870. For the reasons that follow, the Court den ies the

Objection Petition

.

On March 7, 2023, Candidate filed a n omination p etition to be placed

on the ballot for the Office in the General Primary Election (Nomination Petition)

. As part of the N omination P etition, Candidate filed a candidate ’s a ffidavit that

1 Act of June 3, 1937, P.L. 1333, as amended

, 25 P.S. §§ 2600

- 3591.2

included her signature but was not notarized. See Candida te’s Affidavit attached as

Exhibit A to the Objection Petition (Candidate’s Affidavit)

. 2 To comply with the

requirements of the Department of State, Bureau of Elections’ (Department)

nomination petition filing checklist for candidates, 3 Candidate also filed with her

2 The Candidate’s Affidavit includes the following language:

CANDIDATE AFFIDAVIT

– I do swear (or affirm) that my residence, my election district and the title of the office for which I desire to be a candidate are as specified above, that I am eligible for said office, that I will not knowingly violate any election law or any law regulating and limiting nomination and election expenses, and prohibiting corrupt practices in connection therewith; that I am aware of the provisions of Section 1626 of the Pennsylvania Election Code requiring pre

- election and post

- electio n reporting of campaign contributions and expenditures; that unless I am a candidate for Judge of a Court of Common Pleas, the Philadelphia Municipal Court or the office of school board in a district where that office is elective or the office of magisteri al district judge, my name has not been presented as a candidate by nomination petitions of any other party for the same office; that if I am a candidate for any office of a political party I am a registered and enrolled member of such party; that if I am a candidate for Committee Delegate or Alternate Delegate to the National Convention the name of the candidate to whom I am committed is as indicated on my nomination petition and that my signature on the Delegate’s Statement was affixed to each page of my nomination petition prior to circulation of same; that I am not a candidate for an office which I already hold, the term of which is not set to expire on the same year as the office subject to

this affidavit.

Candidate’s Affidavit. Below this language ap pears the statement “I swear (or affirm) to the above part(s) as required by the law(s) applicable to the office I am seeking[,]” with a signature line thereunder and separate lines for the prospective candidate’s telephone number and county of

residence. I

d. Also below the above language is a space and appropriate blanks to be filled out
for the Candidate’s Affidavit to be notarized. See id.

3 The Department’s “‘Things You Will Need’ Checklist” instructs prospective candidates:

You must file with your nomination petition a completed and notarized Candidate’s Affidavit. If you are unable to obtain3

N ominat ion P etition a completed and signed “CANDIDATE DECLARATION to

be attac hed to CANDIDATE’S AFFIDAVIT where notarized statement is not

available

, ” which form she obtained from the Department ’s website. See

Candidate’s Declaration attached as Exhibit B to Objection Petition (Candidate’s

Declaration). 4 The top of the Candidate ’s Declaration form , which the Department

notarization for your Affidavit, an Unsworn De claration must accompany the Affidavit.

Department Candidate Checklist, Hearing Exhibit T

- 1.

4 The Candidate Declaration reads as follows:

CANDIDATE DECLARATION

– I declare that my residence, my

election district and the title of the office for which I desire to be a candidate are as contained in the attached document, that I am eligible for said office, that I will not knowingly violate any election law or any law regulating and limiting nomination and election expenses, and prohibiting corrupt practice s in connection therewith; that I am aware of the provisions of Section 1626 of the Pennsylvania Election Code requiring pre

- election and post

- election reporting of campaign contributions and expenditures; that unless I am a candidate for Judge of a Court of Common Pleas, the Philadelphia Municipal Court or the office of school board in a district where that office is elective or the office of magisterial district judge, my name has not been presented as a candidate by nomination petitions of any other part y for the same office; that if I am a candidate for any office of a political party I am a registered and enrolled member of such party; that if I am a candidate for Committee Delegate or Alternate Delegate to the National

Convention the name of the candid ate to whom I am committed is as indicated on my nomination petition and that my signature on the Delegate’s Statement was affixed to each page of my nomination petition prior to circulation of same; that I am not a candidate for an office which I already hold, the term of which is not set to expire on the same year as the office subject to the accompanying affidavit.

I declare under penalty of perjury under the law of the Commonwealth of Pennsylvania that the foregoing is true and

correct.4

revised in late 2022, 5 bears the Department’s logo and title with “Bureau of

Elections” and the Department’s phone number appearing thereunder

. See

Candidate’s Declaration.

On March 14, 2023, Objector filed the Objection Petition in this Court

alleging that Candidate’s Nomination Petition was insufficient because the

Candidate’s Affidavit was not notarized and that the completed Candidate’s

Declaration could not serve as a re placement for a notarized Candidate’s Affidavit.

See Objection Petition at 1

- 2

. Thereafter, Candidate executed and intended to file a

replacement notarized Candidate ’s Affidavit, but did not do so upon being informed

by another candidate who had already attempted to do so after the filing deadline

that her submission would be rejected as untimely

.

On March 20, 2023, the Court conducted a hearing on the Objection

Petition at which Candidate testified and counsel for both sides offered extensive

argument

. Objector asked this C ourt to set aside Candidate’s Nomination Petition

based on the position that the unnotarized Candidate’s Affidavit is the functional

equivalent of no affidavit at all. Candidate , on the other hand, argued that, pursuant

Signed on the ___ (date) day of _____ (month), ____ (year), at ___________________ (county or other location, and state), _____ (country).

_____________________________________

(printed name)

_____________________________________ (signature)

Candidate Declaration.

5 The lower left

- hand corner of the Candidate’s Declaration bears the notation “(rev. 12/22)”. See Candidate’s Declar ation.5

to the Unifor m Unsworn Declarations Act ( Declarations Act )

, 6 her unsworn

Candidate’s Affidavit and the accompanying Candidate ’s Declaration fulfilled the

requirements of the Election Code. Candidate further argued that she followed the

Department’s direction in compl eting and filing her Candidate’s Declaration

.

O ur Supreme Court has explained that

in considering statutory provisions of the Election Code, we must remember the longstanding and overriding policy in our Commonwealth to protect the elective franchise. To promote this policy, th is Court has consistently held that the provisions of 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.

At the same time, however, we have said that the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process.

In re 2003 Gen. Election for Off. of Prothonotary , 849 A.2d 230, 237 (Pa. 2004)

(internal citations, some brackets, and quotation marks omitted)

.

Our Supreme Court has also observed , however, that the “[p]rovisions

of the Election Code relating to the form of nominating petitions and the

accompanying affidavits ar e not mere technicalities, but are necessary measures to

prevent fraud and to preserve the integrity of the election process.” In re Beyer , 115

A.3d 835, 838 (Pa. 2015); see also In re Shimkus , 946 A.2d 139, 154 (Pa. Cmwlth.

2008). Nonetheless, “ [a] part y alleging defects in a nominating petition has the

burden of proving such defects, as nomination petitions are presumed to be valid.”

Beyer , 115 A.3d at 838.

6 42 Pa.C.S. §§ 6201

- 6208.6 Section 910 of the Election Code outlines the follow ing requirements

for affidavits to be fil ed by candidates seeking office :

Each candidate for any State, county, city, borough, incorporated town, township, ward, school district, poor district, election district, party office, party delegate or alternate, or for the office of United States Senator or Representative in Congress, shall file with his nomination petition his affidavit stating

-- (a) his residence, with street and number, if any, and his post

- office address; (b) his election district, giving city, borough, town or township; (c) the name of the office for which he consents to be a candidate; (d) that he is eligible for such office; (e) that he will not knowingly violate any provision of this act, or of any law regulating and limiting nomination and election expenses and prohibiting c orrupt practices in connection therewith; (f) unless he is a candidate for judge of a court of common pleas, the Philadelphia Municipal Court or for

the office of school director in a district where that office is elective or for the office of justice of t he peace that he is not a candidate for nomination for the same office of any party other than the one designated in such petition; (g) if he is a candidate for a delegate, or alternate delegate, member of State committee, National committee or party

offic er, that he is a registered and enrolled member of the designated party; (h) if he is a candidate for delegate or alternate delegate the presidential candidate to whom he is committed or the term “uncommitted”; (i) that he is aware of the provisions of sec tion 1626 of this act requiring pre

election and post

- election reporting of campaign contributions and expenditures; and (j) that he is not a candidate for an office which he already holds, the term of which is not set to expire in the same year as the off ice subject to the affidavit. In cases of petitions for delegate and alternate delegate to National conventions, the

candidate ’ s affidavit shall state that his signature to the delegate ’ s statement, as hereinafter set forth, if such statement is signed by said candidate, was affixed to the sheet or sheets of said petition prior to the circulation of7 same. In the case of a candidate for nomination as President of the United States, it shal l not be necessary for such candidate to file the affidavit required in this section to be filed by candidates, but the post

- office address of such candidate shall be stated in such nomination petition.

25 P.S. § 2870 (footnotes omitted). Section 910’s l anguage contains no requirement

that a candidate ’s affidavit be notarized. Nonetheless , t his Court had determined in

the past that notarization was required for affidavits related to nomination petitions.

See Bolus v. Saunders , 833 A.2d 266, 269 (Pa. Cmw lth . 2003) (holding that a failure

to sign an affidavit before a notary represents a defect that cannot be characterized

as merely “technical” ).

Then , i n 2013, Pennsylvania’s General Assembly adopted the

Declarations Act , which defines a “sworn declaratio n” as “[a] declaration in a signed

record given under oath .” 42 Pa.C.S. § 6202. The definition of sworn declaration

continues to explain that “[t] he term includes a sworn statement, verification,

certificate and affidavit. ” Id. The Declarations Act lik ewise defines “unsworn

declaration” as “[a] declaration in a signed record not given under oath but given

under penalty of perjury .” Id. When enacted in 2013, the Declarations Act applied

only to unsworn declarations made outside the geographic boundarie s of the United

States. See former 42 Pa.C.S . § 6203. However, in April 2020, the General

Assembly enacted the Act of April 20, 2020, P.L. 82, No. 15, § 1.3 (Act 15), which

amended the Declarations Act to apply to unsworn declarations made either within

or outside the geographic boundaries of the U nited States. See 42 Pa.C.S. § 6203. 7

7 To the extent Act 15 contains a sunset provision relating to the end of the declaration of disaster emergency related to the COVID

- 19 pandemic, the sunset provision related only to the ability of notaries to notarize documents online during the duration o f the declaration of disaster

emergency. See Act 15, § 5731. This provision did not otherwise affect the validity of Act 15’s changes to the text of Section 6202 of the Declarations Act. See id.8 Regarding the validity and use of unsworn declarations, the

Declarations Act states that, “ if a law of this Commonwealth requires or permits use

of a sworn declaration, an unsworn declaration meeting the requirement s of this

chapter has the same effect as a sworn declaration. ” 42 Pa. C.S. § 6204 (a). The

Declarations Act provides express exceptions to this general rule in the following

five cases:

(1 ) a deposition;

(2) an oath of office;

(3) an oath or affirmation required to be given before a specified official other than a notary public;

(4) a declaration relating to real property required or authorized to be recorded; and

(5) an oath or affirmation required by 20 Pa.C.S. § 3132.1 (relating to self

- proved wills ).

42 Pa. C

. S. § 6204 (b). The N ote to Section 6204 of the Declarations Act further

explains that,

[e] xcept as provided in subsection 4(b) of this section, an unsworn declaration meeting the requirements of this act may be used in a state proceeding or tr ansaction whenever

other state law authorizes the use of a sworn declaration. Thus, if other state law permits the use of an affidavit, an unsworn declaration meeting the requirements of this act

would also suffice. Additionally, if other state law

autho rizes other substitutes for a sworn declaration, such as an affirmation, then as provided in subsection (a) of this section, an unsworn declaration meeting the requirements

of this act could serve as a substitute for an affirmation. Nothing in this act af fects the efficacy of sworn9 declarations. An unsworn declaration is an alternative to

a sworn declaration. In perhaps most cases, sworn or notarized declarations may be preferred; unsworn declarations though may be used when necessary or suggested by cir cumstances.

42 Pa.C.S. § 6204, Note. The N ote explain s further that “[t] he use of unsworn

declarations is not limited to litigation [,]” and that ( with the exception of the five

enumerated exceptions of subsection 6204( b ) ) , “[u] nsworn declarations would be

usable in civil, criminal, and regulatory proceedings and settings. ” Id. Thus, where

an unsworn signed declaration is made under penalties of perjury 8 and not subject to

one of the enumerated exceptions, under the Declarations Act , such an unsworn

declaration has the same effect and is the functional equivalent of a sworn

declaration given under oath.

In the instant matter, the Nomination Petition’s unnotarized

Candidate ’s Affidavit is supported by the Candidate ’s Declaration, w hich contains

all the information required by Section 910 of the Election Code, 25 P.S. § 2870, for

a valid candidate ’s affidavit, and is further a signed declaration made under penalty

of perjury. As such, the Candidate ’s Declaration meets the definition of an “unsworn

declaration” under the Declarations Act

. Further, the Nomination Petition does not

fit within any of the five enumerated exceptions for the substitution of an unsworn

declaration to have the same effect and is the functional equivalent of a sworn

affidavit

. See 42 Pa.C.S. § 6204(b). Thus, the Candidate ’s Declaration has the same

8 Section 6206 of the Declarations Act establishes the fo rm of an unsworn declaration and requires that such declaration be made under penalty of perjury. See 42 Pa .C.S. § 6206.10

effect as a sworn affidavit under the Declarations Act

, and the Objection Petition

must fail. 9

Additionally, the Court disagree s with Objector’s suggestion that

Candidate’s Nomination Petition should be set aside because Candidate failed to

provide a reason other than convenience or preference for why she did not obtain

notarization of her Candidate ’s Affidavit. T o the extent the title of the Department

provided candidate ’s declaration form indicates that it is to be attached to a

candidate’s affidavit where a notarized statement is not available, the candidate ’s

declaration form contains no indicat ion that a candidate need provide any

explanation of why a notary was unavailable or why the candidate filed the candidate

declaration in lieu of a notarized candidate affidavit. Likewise, the Declarations Act

contains no requirement that a notary be unavailable before an unsworn declara tion

can have the same effect as a sworn affidavit

.

For the above reasons, the Court den ies the Objection Petition.

___________________________ _______ CHRISTINE FIZZANO CANNON , Judge

9 T his Court issued a single judge unreported opinion in April 2022 that adopted the reasoning of a trial court opinion that similarly relied on the Declarations Act to conclude that an unsworn affidavit was acceptable as a substitute for a sworn candidate’s affidavit

. See In Re:

Nominatio n Petition of Abu V. Edwards (Pa. Cmwlth., No. 316 C.D. 2022, filed April 11, 2022).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Nomination Petition of : Caroline Turner Candidate for : Judge of Municipal Court, : First Judicial District of Pennsylvania, : Democratic Party :

: No. 138 M.D. 202 3 Objection of: Esther Jones :

O R D E R

AND NOW, thi s 21st day of March , 20 2 3

, t he Petition to Set Aside

Nominating Petition of Objector Esther Jones is DENIED.

___________________________ _______ C HRISTINE F IZZANO C ANNON , Judge