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From: To : CC : Date Received: Subject: John Stoffa MStewart@eckertseamans.com John R. Conklin ; Wednesday, February 02, 2011 6:20 PM RE: Agenda Initiative case

thanks nice job Mark -----Original Message----From: MStewart@eckertseamans.com [mailto:MStewart@eckertseamans.com] Sent: Wednesday, February 02, 2011 5:32 PM To: bohare5948@aol.com; farmerangle@hotmail.com Cc: John R. Conklin; John Stoffa Subject: Fw: Agenda Initiative case Ron and Bernie As you know, Otter filed an Amended Motion to Dismiss in which he argues (1) the Election Code does not apply to initiatives, (2) the Nutter case is somehow applicable and controlling, and (3) the court lacks subject matter jurisdiction because the Election Code does not apply (redundant). As explained below, he's wrong on all points. We've attached the case cited and have previously provided copies of the other cases referenced. 1) In the 2003 Commonwealth Court case, In Re Petition for Agenda Initiative, it clearly holds that the Election Code applies to the same. It is still good law. 2) The Nutter case is inapposite, as it deals with a question of whether state law has preempted an issue such that a county charter cannot apply. Here, Otter's essentially arguing the reverse -- the charter somehow preempts state law -- which does not work. Nor is this a case where the local law imposes a stricter rule than the state law baseline. He's trying to say the baseline does not apply at all. 3) Finally, for all of these reasons, the claim that the Court lacks subject matter jurisdiction because only the Charter governs here is wrong. If the Election Code applies, which it does, then the Court has jurisdiction. Mark Stewart Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 717.237.7191 (direct) 717.237.6019 (fax) mstewart@eckertseamans.com This communication may contain federal tax advice. Recent IRS regulations require us to advise you that any discussion of federal tax issues in this communication was not intended or written to be used and cannot be used to avoid any penalty under federal tax law or to promote, market or recommend any transaction or matter addressed herein. Only formal, written tax opinions meeting these IRS requirements may be relied upon for the purpose of avoiding tax-related penalties. Please contact one of the Firm's Tax partners if you have any questions regarding federal tax advice. ----- Forwarded by Mark S Stewart/ESCM on 02/02/2011 05:10 PM -----

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Elizabeth Kreder McCoy/ESCM 02/02/2011 05:09 PM To Mark S Stewart/ESCM@ESCM cc

Subject Agenda Initiative case

Mark, The Amended Motion states that objections based upon 25 P.S. S. 2937 of the Pa. Election Code are limited to nomination petitions and papers of candidates for public office. This is not correct. Case law clearly indicates that the Election Code is applicable not only to nomination petitions but also to other types of initiatives and referendum. In In re Petition for Agenda Initiative, 821 A.2d 203 (Pa. Cmwlth. 2003) the Commonwealth Court applied Election Code requirements in rejecting defective signatures on a county agenda initiative petition. The Court applied requirements set forth in Section 2868 of the Election Code, governing the signing of nomination petitions. The Court reasoned that "[t]he principles that the Supreme Court articulated in Nomination Petition of Flaherty, [770 A.2d 327 (Pa. 2001)] apply equally here and require that this Court uphold the decision to strike printed signatures from the petition along with those using nicknames or initials which were not shown to be the actual signatures of the voters. Id. at 211(emphasis added). See also In re Harrisburg Sunday Movie Petition Case, 44 A.2d 46 (Pa. 1945) (found Election Code applicable to ballot referendum questions regarding showing movies on Sundays). Similarly, in Petition of Werner, 662 A.2d 35 (Pa. Cmwlth. 1995), the Commonwealth Court upheld challenges to petitions protesting a borough ordinance because they did not meet Election Code requirements regarding circulator affidavits. Petitioners argued that the strict requirements of the Election Code mandating that petitions contain affidavits was inapplicable to Section 2409 of the Borough Code, which neither referenced the Election Code nor specified that protest petitions had to be accompanied by an affidavit. Id. at 37. The Commonwealth Court reiterated the reasoning of the trial court, which stated as follows: Only by applying the provision of the Election Code to this determination [regarding showing movies on Sundays] is an orderly procedure established. Otherwise there is nothing to regulate the form of the petitions or what they should contain." The trial court added that, "[t]he provisions of the election laws relating to the form of nomination petitions, and requiring the person circulating them to swear to certain definite things, are necessary to prevent fraud. It is just as important for the petitions before us to have the names properly signed, with addresses, occupation and date of signature, to be supported by affidavit as any petition filed in accordance with the Election Code... The filing of petitions with agencies of government, which petitions are to be the basis of official actions by those agencies, without appropriate verifications of such petitions by some person who is qualified to certify under oath to the genuineness of those petitions to the best of the affiant's information and belief, would be an anomaly in the administration of our government, and we cannot believe that the legislature intended to either authorize or tolerate such an anomaly in the petitions it provided as the basis of holding a municipal election on the question of permitting motion pictures on Sunday. Id. at 38, (citations omitted). The Commonwealth Court further stated that, "The provisions of the election laws relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities but are necessary measures to prevent fraud and to preserve the integrity of the election process. " Id. (citations omitted). Moreover, "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." Id. The rationale set forth in the above cases in support of the application of the Election Code to not only nominating

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petitions but also initiatives and referendum is also applicable to the present case. All are concerned with the integrity of the election process. Failure to apply Section 2937 of the Election Code to the present Initiative Petition would defy the legislative intent to provide an orderly procedure for such initiatives, open the door to fraud, and result in the emasculation of the requirements set forth under the Election Code to assure the probity of the petition process. The Petition Committee's argument that Nutter v. Dougherty, 921 A.2d 44 Pa. Cmwlth. 2007) is dispositive of the issue that the matter is governed solely by Article XI of the Northampton Country Home Rule Charter is misguided. Nutter upheld a Home Rule Charter ordinance that was more restrictive than the Election Code Requirements regarding campaign finance. First, that is not the issue in the pending case and thus Nutter is irrelevant. Second, the court reasoned that because the Election Code does not contain express language regarding campaign contributions for candidates for local elective office, that there was no evidence of an intent by the legislature to preempt the field. Id. at 60. Unlike the issue involving campaign contributions in Nutter, there is evidence of legislative intent to pre-empt the field regarding nomination petitions. The Election Code contains express language regarding nomination petitions and filing objections to nomination petitions. Nutter acknowledged multiple areas governed by the Election Code, specifically identifying nomination petition provisions, and distinguishing them from campaign contributions to local elections. Id. at 60. The cases cited above, have clearly stated that Election Code provisions regarding nomination provisions cover all petitions and are not limited to only nomination petitions. Elizabeth K. McCoy, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, Pennsylvania 17101 Direct: 717-237-6026 PRIVILEGED AND CONFIDENTIAL This communication may contain federal tax advice. Recent IRS regulations require us to advise you that any discussion of federal tax issues in this communication was not intended or written to be used and cannot be used to avoid any penalty under federal tax law or to promote, market or recommend any transaction or matter addressed herein. Only formal, written tax opinions meeting these IRS requirements may be relied upon for the purpose of avoiding tax-related penalties. Please contact one of the Firm's Tax partners if you have any questions regarding federal tax advice. Fax: 717-237-6019 emccoy@eckertseamans.com (See attached file: Gracedale - Petition for Agenda Initiative.PDF) _____________________________________ Scanned by Symantec Anti-Virus and Content Filtering before delivery. This e-mail message and any files transmitted with it are subject to attorney-client privilege and contain confidential information intended only for the person(s) to whom this email message is addressed. If you have received this e-mail message in error, please notify the sender immediately by telephone or e-mail and destroy the original message without making a copy. Thank you. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message.

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