Gingrich Forgery Case: Exhibit G

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

2 In Re: Nomination Papers of :

Mauree Gingrich as :

3 Candidate for :

Representative in the :

4 General Assembly in the :

101st Legislative District : No. 89 MD 2008

5 :

Russ Diamond, Bruce Shannon :

6 and Gale M. Moyer, :

Petitioners :

9 TRANSCRIPT OF PROCEEDINGS

11 BEFORE: THE HONORABLE KEITH B. QUIGLEY, Senior Judge

12 DATE: February 26, 2008, 10:00 a.m.

13 PLACE: Commonwealth Court of Pennsylvania

Irvis Office Building

14 Courtroom No. 2, Fifth Floor

Harrisburg, Pennsylvania

18 APPEARANCES:

19 Lawrence M. Otter, Esquire

For - Petitioner

Marsha A. Sajer, Esquire

21 For - Respondent

22 Anthony R. Holtzman, Esquire

For - Respondent

1 INDEX TO WITNESSES

2 WITNESS EXAMINATION PAGE

3 Mauree Gingrich By Mr. Otter 31,52

4 By Ms. Sajer 46

5 Susan Edris By Mr. Otter 59

6 By Ms. Sajer --

12 INDEX TO EXHIBITS

13 NO. DESCRIPTION MARKED

14 P-1 Page 2 of Petition 31

15 P-2 Complete Petition_ 42

16 R-1 E-mail Invitation 46

1 P R O C E E D I N G S

2 THE COURT: Okay. We had a preliminary matter.

3 Are we ready to go here, ready to start?

4 MR. OTTER: Yes.

5 MS. SAJER: We are, Your Honor.

6 THE COURT: We have -- let me just give you what

7 I think is an overview of the case, and then you can make

8 some additions or corrections. We have a candidate for

9 representative, 101st Legislative District, Ms. Gingrich,

10 who has filed nominating petitions. With respect to one of

11 those petitions, I believe, there is an issue concerning

12 the Affidavit of Circulator.

13 And I think it's alleged that the candidate made

14 affidavit concerning the, an affidavit that would normally

15 be made by a circulator under circumstances where she, in

16 fact, didn't do the circulating for at least some of those

17 names on the petition, and also some of the names perhaps

18 were of people who didn't sign or other areas were filled

19 in that shouldn't have been filled in. Is that basically

20 correct so far --

21 MS. SAJER: Yes, Your Honor.

22 THE COURT: -- in a nutshell? Okay. And we

23 have a motion before me at this point that the gist of

24 which, at least the part that I think we need to discuss in

25 advance here, is the sufficiency of the allegation that

1 would disqualify this woman's candidacy as having been

2 violative of the Election Law of the Commonwealth.

3 And I think, and I don't want to put words in

4 your petition -- now, I haven't had the opportunity to

5 thoroughly analyze all this stuff. It just now came in.

6 That's why I need to go over this to begin with,

7 but I think, Ms. Sajer, you're, in essence, saying that

8 there's not sufficient allegation for us to even proceed at

9 this point because I assume it's sort of like a demurrer to

10 take everything that's said in here is not sufficient to

11 constitute the type of basically prima facie that would go

12 with a violation of the Election Law sufficient to

13 disqualify this candidate.

14 Because there is a provision in the law, of

15 course, as it should be, that if you violate the Election

16 Law, you can forfeit, you do forfeit any right to hold

17 public office or be a candidate, I think, in the context of

18 this case. So you're saying the allegation is

19 insufficient?

20 MS. SAJER: That's in a nutshell, Your Honor.

21 THE COURT: And I think that's -- you say other

22 things too, but I think that that's what I want to talk

23 about to begin with. Now, a couple of things that come to

24 mind would be -- a violation of the Election Law, there are

25 different ways to establish that. One would be the

1 criminal charge for information or something to that effect

2 followed by a guilty plea or a conviction. There would be

3 no issue of that. That's not the case here.

4 So I think that, Mr. Otter, I think what you're

5 asking me is if this constitutes a violation of the

6 Election Code and if that violation is sufficient magnitude

7 that would cause a disqualification of the candidate

8 irrespective of numbers of signatures or validity of

9 signatures. Is that right?

10 MR. OTTER: That's absolutely correct, Your

11 Honor.

12 THE COURT: A year or two ago, I wrote an

13 opinion as a Commonwealth Court, and we sit frequently, as

14 visiting senior judges, we sit as the Appellate Court in

15 election cases; because of the expediency, there's not

16 enough time for panels and so on and so forth.

17 And I wrote an opinion concerning the necessity

18 of filing statements of financial interest with petitions.

19 I don't know if you can hear me back there. Can you hear

20 me back there? Okay. All right. Can you hear me over

21 there?

22 I don't know if what I have to say means

23 anything anyway, but in any event, in this particular case,

24 there was a petition filed and sufficiency was challenged

25 by somebody who is, I guess wished to disqualify a

1 particular candidate. And I held that, you know, the

2 petition, the statement was there. Whether it was adequate

3 or not was for the Ethics Commission or perhaps, more

4 importantly, for that person's opponent to make a lot of

5 political hay of and it was sufficient just to have filed.

6 The Supreme Court reversed that, but I'm -- and

7 I don't follow this, but I'm advised by staff counsel that

8 that position that I took when, I guess, the Supreme Court

9 got around to really reading the opinion that I wrote,

10 found it to be sound and now that's the law of the state.

11 And why do I say that? I say that because the

12 election laws, I think, need to be liberally construed to

13 put as many people on the ballot who seriously want to be

14 on the ballot as possible. Mr. Nader had a lot of

15 complaints about that last year, and he's complaining

16 already about it this year.

17 I heard him this morning; Pennsylvania's the

18 poster child of states to try to keep people off ballots.

19 That's what he said. I don't prescribe to that

20 necessarily. It's not my job. But under the

21 circumstances, I'm impressed by this argument, by this

22 motion.

23 Now, you tell me why I ought to proceed with

24 this hearing based on the allegations that are in front of

25 me at this point because I'll certainly do so if there's a

1 basis for it.

2 MR. OTTER: Your Honor, this strikes the very

3 integrity of the election system. Our allegation is very

4 plain, that Ms. Gingrich filed a false affidavit. That's

5 an election crime. We've alleged that in our complaint.

6 The only persons who could bring a criminal charge would be

7 either the Attorney General or the District Attorney of

8 Lebanon County on this matter.

9 We're bringing this complaint to the Court. We

10 have people here who will testify that Ms. Gingrich did not

11 circulate this petition, and we'll have other people who

12 will testify that they did not sign this petition. That's

13 rather clear and convincing evidence that this circulator's

14 affidavit is false.

15 Now, counsel for Ms. Gingrich has advanced a

16 theory that the candidate's affidavit which was filed is

17 prospective in nature. Well, I'd like to point out to the

18 Court that Ms. Gingrich swore to this on February 9th, and

19 then --

20 THE COURT: I wasn't real impressed with that

21 argument.

22 MR. OTTER: Okay.

23 THE COURT: Okay? I was impressed with the one

24 we're talking about here.

25 MR. OTTER: Your Honor, this, as I said, it goes

1 to the heart and integrity of the election system in

2 Pennsylvania. To get on the ballot, the Legislature has

3 laid out the way to do that; to get a petition with X

4 number of signatures, circulators sign a circulator's

5 affidavit to attest to the veracity of the signatures they

6 collect.

7 And the candidate is held to a higher standard

8 that he or she has to file a candidate's affidavit saying

9 they will not knowingly violate the Election Law. I submit

10 to you that Ms. Gingrich knew she was not the circulator,

11 knew when she signed this on February 9th that was a false

12 affidavit.

13 When she filed it with the Department of State

14 two days later, she committed an election crime, filing a

15 false affidavit. It's that simple, and we have the

16 witnesses here to back up those statements.

17 THE COURT: Okay. Let me just ask this then. I

18 want to be clear.

19 MR. OTTER: Sure.

20 THE COURT: She filed later on. She didn't

21 violate the Election Law. At the time of filing the

22 circulator's affidavit, you're alleging that she knew she

23 was not the circulator?

24 MR. OTTER: She knew that when she signed

25 the -- on February 9th when she signed under oath, I'm the

1 circulator.

2 THE COURT: Right.

3 MR. OTTER: She knew that. She knew she

4 didn't --

5 THE COURT: What else did she know when she

6 filed that other than she wasn't the circulator? You also

7 allege that some of the signatures were not, I

8 guess --

9 MR. OTTER: They're fraud; they're forgeries.

10 THE COURT: Are you alleging she knew that?

11 MR. OTTER: Well, I think -- I don't know who

12 did the forgeries because I think -- we know one of the

13 persons who was circulating the petition, and that person

14 is Sue Edris. She's in court today.

15 And we will have testimony from a number of

16 witnesses, including her next-door neighbor, who will say

17 that she gave us this petition to sign, not Mauree

18 Gingrich. So Ms. Edris may have a problem.

19 THE COURT: So basically what you've told me,

20 the only thing that the candidate allegedly knew was that

21 she was not the circulator and signed as though she was the

22 circulator?

23 MR. OTTER: In essence.

24 THE COURT: So if there's anything fraudulent as

25 to signatures or false or whatever, she would take some

1 responsibility for that, but not necessarily for actually

2 knowing that they were improper signatures, or improperly

3 affixed or whatever.

4 MR. OTTER: Well, she had to know that she

5 wasn't the circulator.

6 THE COURT: Okay. That's your allegation. I

7 understand that.

8 MR. OTTER: Yeah.

9 THE COURT: Well, and you suggest that. Maybe

10 she did or didn't. I don't know.

11 MR. OTTER: Well, the testimony will have to

12 bear that out, and I think that's where the Court is going

13 to have to judge the credibility of the witnesses here. We

14 have --

15 THE COURT: Oh, we can do that.

16 MR. OTTER: Yes. I'm supremely confident that

17 you can, Your Honor. And I think this case begs for you to

18 hear it and test the credibility of all the witnesses in

19 this case. Thank you.

20 THE COURT: Thank you. All right. Go ahead.

21 MS. SAJER: Your Honor, let me very directly

22 address the point that you had raised in referring to your

23 previous opinion that you perceived to have been overruled

24 by the Court. I'm aware of that line of cases starting

25 with the Anastasio case following the Supreme Court's

1 decision on Baldwin that a defective statement of financial

2 interest could be amended.

3 The General Assembly reacted and put into the

4 Public Official and Employees' Ethics Code the stipulation

5 that any error in a filing of statement of financial

6 interest would be a fatal defect. That pertains only to a

7 statement of financial interest, and, Your Honor, that has

8 not been extended to the context in which objectors have

9 raised in allegation.

10 To the contrary, in the Driscoll case recently

11 decided by the Pennsylvania Supreme Court, the Court

12 carefully distinguished that line of cases, made note of

13 the fact that the Baldwin holding, that there needs to be a

14 truly material intentional, intent to deceive the

15 electorate before a candidate's affidavit would be

16 invalidated.

17 The fatal defect rule was not applied to that

18 case. The Court specifically noted in the Driscoll opinion

19 its awareness of the fact that the fatal defect rule had

20 been put into place with respect to the statement of

21 financial interest and made specific note of the fact that

22 fatal defect rule had not been extended to this context.

23 So the fatal defect rule, Your Honor, is simply

24 not at play here. Rather the legal standard set out by the

25 Pennsylvania Supreme Court is whether a candidate's

1 affidavit contains false information, and that is based on

2 evidence that the candidate knowingly falsified the

3 affidavit with an intent to deceive the electorate.

4 THE COURT: Right.

5 MS. SAJER: And I'm quoting from Driscoll. But

6 I did want to be clear, since you had directed our

7 attention to the statement of financial interest, there is

8 a different statutory provision that governs that that does

9 not govern this.

10 THE COURT: I understand that. I used that as

11 an example of the, what I perceive to be the, a liberality

12 toward getting candidates on ballots; in other words,

13 people who are interested in running ought to be able to

14 run. There's a lot of concern about certain areas.

15 The Nader case last year was -- I have to quote

16 him -- a poster child, you know, really problems in getting

17 a third-party candidate on the ballot. Now, I understand

18 perhaps philosophically, I think, that was the whole point.

19 I don't intend to have any decision rise or fall on any

20 parallels.

21 MS. SAJER: But, Your Honor, I would further

22 object to the extent -- now, I know you said that you're

23 not discarding it, but I want to make my record on the

24 point that -- let me just talk about specificity. As Your

25 Honor knows, the Election Code requires, because there is