J. Hamilton, et al. v. T. Hennessey, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA J. HANK HAMILTON, DEMOCRATIC : CANDIDATE FOR STATE : REPRESENTATIVE IN THE 26th : LEGISLATIVE DISTRICT and JOHN : BEEMER, CHAIRMAN OF THE : CHESTER COUNTY DEMOCRATIC : PARTY, and THOMAS BOSAK and : THOMAS FULTON and BRENDA B. : TREADWELL, : Petitioners : : v. : : TIM HENNESSEY and FRIENDS OF : TIM HENNESSEY and CAROL : HENNESSEY, TREASURER : FRIENDS OF TIM HENNESSEY, : Respondents : No. 857 M.D. 1998 Argued: December 8, 1999 BEFORE: HONORABLE JOSEPH T. DOYLE, President Judge HONORABLE JAMES GARDNER COLINS, Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge OPINION BY PRESIDENT JUDGE DOYLE FILED: August 28, 2001 Before the Court is the motion of the Pennsylvania House Republican Caucus, intervenor in this case, to quash various subpoenas issued by Petitioners. The original three-count Complaint filed in this Court s original jurisdiction requested preliminary and permanent injunctive relief. Petitioners allege that several newsletters sent on behalf of Representative Timothy Hennessey are political advertisements and, thus, should have been included as campaign expenses. Count I sought declaratory and injunctive relief pursuant to 42 U.S.C. §1983 for violations of the First Amendment 1 by using public funds to finance campaign elections. Count II sought declaratory and injunctive relief for violating the Pennsylvania Election Code2 by using state and public funds to finance Representative Hennessey s election campaign. Count III sought an audit of expenses pursuant to Section 1636 of the Election Code, 25 P.S. §3256 (relating to audits), due to the failure to report the receipt and expenditure of public monies in Representative Hennessey s campaign report. The case was assigned to the Honorable Warren G. Morgan, a Senior Judge of this Court, and a hearing was held on November 2, 1998. By order dated November 6, 1998, Judge Morgan denied Petitioners request for preliminary injunctive relief. Subsequently, Respondents filed preliminary objections to the petition for review, and a second hearing was held on January 11, 1999. By order dated January 12, 1999, Judge Morgan concluded that Section 1636 of the Code provided an adequate remedy at law. Accordingly, Judge Morgan sustained the preliminary objections to Counts I and II and dismissed those counts, and only Count III, requesting an audit of Mr. Hennessey s campaign expenses, remains. A hearing on the audit was set for March 8, 1999. On February 5, 1999, at Petitioners request, this Court issued subpoenas to Representative John M. Perzel, 1 2 U.S. CONST., amend. I. Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591. 2 Majority Leader of the House of Representatives, Stephen Drachler, Press Secretary, Jason Ercole of David Welsh Associates, and the Custodian of Records of Image Tech Associates, the company that designed and prepared the newsletters pursuant to a contract with the House. The subpoenas requested the individuals to bring any information regarding how the House Caucus decided on the number of mailings per candidate, as well as any financial records concerning the mailings. The House Republican Caucus was granted leave to intervene in this matter by order dated March 8, 1999. The House Republican Caucus subsequently filed a motion to quash these subpoenas arguing the relevance of the subpoenas, that the subpoenas were overbroad, and that they ran afoul of the protections under the Speech and Debate Clause of the Pennsylvania Constitution. 3 Judge Morgan continued the audit and ordered briefs in support of and in opposition to the motion to quash the subpoenas. Following briefing of the motion to quash, Judge Morgan concluded that the issues presented in the case were relevant and did not involve a political question, nor was the decision as to the mailings protected by the Speech and Debate Clause. As to the issues of relevance and the political question doctrine, Judge Morgan, concluding that the issues in this case were of first impression in Pennsylvania, relied on, by analogy, federal cases decided under 39 U.S.C. §3210, relating to the franked mailing privilege for official business of members of Congress. Pursuant to the federal statute, a Member or Member-Elect to Congress may not mail as franked mail laudatory and complimentary information about any Member of, or Member-Elect to, Congress on a purely personal or political basis. Instead, the 3 PA. CONST., Art. 2, §15. 3 mailings must be the basis of performance of official duties as a Member or Member-Elect to Congress. See 39 U.S.C. §3210(a)(5)(A). Judge Morgan cited to the 1973 amendments to the franking statute which provide that the frankability of mail matters shall be determined by the type and content of the mail sent, or to be sent. Common Cause v. Bolger, 574 F.Supp. 672 (D.D.C. 1982), aff d, 461 U.S. 911 (1983). As a result, Judge Morgan concluded that, in order to determine if the mailings in this case were campaign literature, relying on the rationale of the federal franking cases, extrinsic evidence sought by Petitioners subpoenas may be relevant to decide this issue. In addition, Judge Morgan pointed out that the Second and Third Circuit Courts of Appeals found that challenges to the franking statute did not involve a political question. See Albanese v. Federal Election Commission, 884 F.Supp. 685 (E.D.N.Y. 1995), aff d, 78 F.3d 66 (2nd Cir. 1996), cert. denied, 519 U.S. 819 (1996); Schiaffo v. Heltoski, 492 F.2d 413 (3rd Cir. 1974). Relying on the rationale of Schiaffo, Judge Morgan concluded that the challenge in this case requires interpretation of a statute enacted by the General Assembly requiring that all campaign expenses be reported. As a result, Judge Morgan determined that the issues presented in this appeal are not barred by the political question doctrine. Judge Morgan further concluded that the mailings were not protected under the Speech and Debate Clause, Article II, §15 of the Pennsylvania Constitution, which protects members of the General Assembly and their aids from all inquiry concerning their official duties as legislators. 4 Judge Morgan reviewed cases interpreting the federal Speech and Debate Clause, 4 which held that the preparation of a newsletter, although related to official business, was not a protected activity. United States v. Brewster, 408 U.S. 501 (1972). Furthermore, the Seventh Circuit in Hoellen v. Annunzio, 468 F.2d 522 (7th Cir. 1972), rejected the Speech and Debate Clause immunity protection in a franking case. Judge Morgan pointed out that the Pennsylvania Election Code provides that expense accounts of candidates for public office be subject to the closest scrutiny. See In re Shapp, 476 Pa. 480, 383 A.2d 201 (1978). Therefore, Judge Morgan concluded that the Speech and Debate Clause of the Pennsylvania Constitution does not bar inquiry into whether the newsletters constituted campaign literature. Judge Morgan, however, did conclude that the subpoenas were overly broad to the extent that they sought the production of information concerning expenditures for candidates other than Representative Hennessey, and to the extent that they sought information relating to Representative Hennessey outside of the time period from June 8, 1998 through October 19, 1998. Accordingly, by order dated May 26, 1999, the motion to quash was granted in part and denied in part. The House Republican Caucus filed an application for reconsideration before the Court en banc which was granted on June 25, 1999. After reviewing this matter, including the briefs submitted on reargument, we conclude that Judge Morgan correctly granted in part and denied in part that motion. Therefore, we adopt the well-reasoned opinion of Judge Morgan, dated 4 U.S. CONST., art. I, §6. 5 May 26, 1999, and, based on the rationale expressed therein, the motion to quash the subpoenas is hereby granted in part and denied in part. 5 JOSEPH T. DOYLE, President Judge 5 The only issue before this Court is whether Judge Morgan s decision to grant in part and deny in part the subpoenas was proper. Therefore, we need not and will not address the substantive issue of whether the mailings constituted campaign literature, as that issue is not before us. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA J. HANK HAMILTON, DEMOCRATIC : CANDIDATE FOR STATE : REPRESENTATIVE IN THE 26th : LEGISLATIVE DISTRICT and JOHN : BEEMER, CHAIRMAN OF THE : CHESTER COUNTY DEMOCRATIC : PARTY, and THOMAS BOSAK and : THOMAS FULTON and BRENDA B. : TREADWELL, : Petitioners : : v. : : TIM HENNESSEY and FRIENDS OF : TIM HENNESSEY and CAROL : HENNESSEY, TREASURER : FRIENDS OF TIM HENNESSEY, : Respondents : No. 857 M.D. 1998 ORDER NOW, August 28, 2001 , following oral argument before the Court sitting en banc, the Pennsylvania House Republican Caucus motion to quash the subpoenas is hereby granted in part and denied in part as follows: 1. The subpoenas directed to Representative John M. Perzel and Stephen Drachler are QUASHED to the extent that they request records of monies expended for Republican incumbent legislators other than Tim Hennessey and to the extent that they request information relating to Tim Hennessey outside of the time period from June 8, 1998 through October 19, 1998. The motion to quash is DENIED as to the remainder of the information requested in the subpoenas directed to Messrs. Perzel and Drachler. 2. The subpoenas directed to Jason Ercole and to the Records Custodian of Image Tech Associates are QUASHED to the extent that they seek financial records, receipts, ledgers and payment records of all monies paid for mailings done for incumbent Republican State House candidates other than Tim Hennessey, and to the extent that they request information relating to Tim Hennessey outside of the time period from June 8, 1998 through October 19, 1998. The subpoena is also QUASHED to the extent it seeks a list of names of other Republican candidates for which mailings were done, identification of the type and number of said mailings, and the number of persons receiving said mailings. The motion to quash is DENIED as to the remainder of the information requested in the subpoenas directed to Mr. Ercole and the Records Custodian of Image Tech Associates. JOSEPH T. DOYLE, President Judge
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