[J-48-2014] [MO: Saylor, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

IN RE: NOMINATION PETITION OF ROBERT GUZZARDI FOR THE REPUBLICAN NOMINATION FOR GOVERNOR OF PENNSYLVANIA IN THE REPUBLICAN PRIMARY OF MAY 20, 2014

APPEAL OF: RICHARD W. STEWART, ROBERT K. ROBINSON, RICHARD TEMS AND DONNA M. COSMELLO : : : : : : : : : : : No. 29 MAP 2014 Appeal from the order of the Commonwealth Court dated April 15, 2014 at No. 158 MD 2014 SUBMITTED: April 21, 2014

DISSENTING OPINION

MADAME JUSTICE TODD DECIDED: May 1, 2014 OPINION FILED: August 18, 2014 I join Justice Baer’s Dissenting Opinion. I write separately to address two points raised by the majority. First, the majority notes that “[s]ince the present situation is vastly different from the ‘natural disaster, fire, or bomb threat’ scenar ios envisioned by the dissent, we do not address those here.” Majority Opinion at 9 n.5 (ci tation omitted). Admittedly, an appeal

for nunc pro tunc

relief because “I was misinformed” (as herein) is “different” from an appeal for nunc pro tunc relief because, for example, a fire prevented acce ss to the filing office, as the latter claim appears to prese nt a much stronger case for granting nunc pro tunc

relief than the former. But, significantly, from the standpoint of whether equity is available to provide the requested relief , the claims are the same. If, as the majority holds, equity is not available under its c onstruction of the election statute, the particular details underlying the claim — be it off icial misinformation, or disaster — are irrelevant. Cf. Majority Opinion at 10 (conceding that “our enforcement of the governing[J-48-2014] [MO: Saylor, J.] - 2

statutory fatal-defect rule was dispositive of this appeal”). Thus, an appeal to equity such as made in this case and an appeal to equity b ecause of a fire at the filing office are emphatically not “vastly different” — they are, in point of fact, identical legal claims. As a result, the majority’s contention that “we do not address those [claims] here” rings hollow, as I perceive no principled basis — and the majority offers none — for categorically distinguishing between the instant cl aim for nunc pro tunc relief and one based on the “natural disaster, fire, or bomb threa t” scenarios proffered by Justice

Baer. 1 Under the majority’s analysis, all are barred. Relatedly, the majority goes on to state: “We re iterate, however, that judicial enforcement of the fatal-defect rule extends only t o the limits of the federal and state Constitutions and recognize that such enforcement i n impossibility scenarios may test

such boundaries.” Id. at 9 n.5. I take this to me an that the majority recognizes that its interpretation of the statute may be so unfair in i ts application in certain scenarios that it could be unconstitutional. On the majority’s terms , I would agree. However, this constitutional-safety-value tack reveals another pr oblem with the majority’s approach, in addition to those identified by Justice Baer. A cardinal presumption of statutory interpretation is that the legislature does not intend to violate the Constitution. 1 Pa.C.S.A. § 1922(3) (“[T]he General Assembly does

not intend to violate the Constitution of the Unite d States or of this Commonwealth.”); Bricklayers of W. Pennsylvania Combined Funds, Inc. v. Scott's Dev. Co., 90 A.3d 682, 692 (Pa. 2014) (“The Legislature is presumed not to intentionally pass unconstitutional laws, and courts give statutes a constitutional int erpretation if that is reasonably possible.”). In my view, the majority’s interpreta tion of the fatal defect language violates

1 If the majority’s distinction is meant to signal t hat its fatal defect interpretation somehow may not be as absolute as it appears to be — i.e., that it contemplates that some equity claims may be more worthy than others — it should say so explicitly.[J-48-2014] [MO: Saylor, J.] - 3

this precept. In addition to the natural disaster, fire, or bomb threat scenarios suggested by Justice Baer, I would add the much more prosaic power outage, snow storm (filings are due in late winter), or water line break. In b rief, short of negligence, there are any number of highly foreseeable events that could hamp er or prevent the timely filing of a statement of financial interests. Surely, the legi slature must have been aware of such possibilities in crafting the fatal defect language . However, by concluding the legislature intended to preclude equitable relief in toto , the majority nearly guarantees a constitutional contravention, flouting the above pr ecept of statutory construction. In this regard, I do not mean to suggest the majori ty’s interpretation of the fatal defect language is unfounded: such language can re asonably be viewed as disallowing equitable relief. At the same time, I regard Justi ce Baer’s alternative interpretation — that the fatal defect language was added to reverse this Court’s dilution of the filing requirement in State Ethics Comm’n v. Baldwin, 445 A.2d 1208 (Pa. 1982), and thus is unrelated to restricting a court’s ability to grant equitable relief — also to be eminently reasonable. Yet, critically, Justice Baer’s interp retation has the advantage of avoiding the constitutional infirmity to which the majority alludes, and so comports with the presumption against unconstitutional interpretation s. Given the panoply of highly foreseeable scenarios which may result in a non-neg ligent failure to timely file a statement of financial interests, I would interpret the fatal defect language in a manner which avoids, not presumes, constitutional impedime nts.