Candidate and Counsel Memorandum in Support of Motion To

In Re: Nomination Papers of Carl Romanelli Docket No 426 MD 2006

CANDIDATE AND COUNSEL MEMORANDUM IN SUPPORT OF MOTION TO

STAY IMPOSITION OF COSTS AND PETITION TO REOPEN THE HEARING

ON THIS MATTER PENDING OUTCOME OF THE ATTORNEY GENERAL’S

CRIMINAL PROSECUTION OF “BONUSGATE SCANDAL” THAT DIRECTLY

ALLEGED CRIMINAL CONSPIRACY AND MISAPPROPRIATION AND

THEFT OF TAXPAYER FUNDS TO ILLEGALLY FUND THE 2006 COURT

CHALLENGE TO UNTED STATES SENATE CANDIDATE CARL

ROMANELLI

FACTS

On or about January 7, 2007, this Court conducted a hearing on Petition

challenger’s motion for costs. The Court subsequently imposed costs upon Mr.

Romanelli and his counsel as the losing party in an election matter in 2006 not under

the Election Code but under the Judicial Code to get around a decision on the same

day as the hearing wherein the Commonwealth Court stated that costs were not

recoverable under the Pennsylvania Election Code. Carl Romanelli and his counsel

appealed the imposition of sanctions to the Pennsylvania Supreme Court.

Subsequently, the Harrisburg Patriot News revealed the existence of

multimillion dollars bonus payments to State Legislative employees. Attorney

General Tom Corbett then commenced an investigation of these “bonus” payments.

On or about July 10, 2008, during the pendency of the Romanelli appeals, the

Attorney General announced the indictment of twelve state employees and in the

investigating grand jury presentment specifically laid out information that the

nominating petition challenges to Ralph Nader in 2004 and Carl Romanelli in 2006

were done with state employees, on state time, in state offices, using state equipment

and paid their normal state salaries to perform political work and those employees

received tax payer money as a bonus payment for this illegal political work. (See

Exhibit A, pages 55-59 of the Grand Jury Presentment, attached hereto.) The

Attorney General Tom Corbett stated: “Two outstanding examples of

misappropriation of taxpayers’ resources on petition challenges were the Ralph

Nader for President of the United States in 2004 and the Carl Romanelli for the

United States Senate in 2006.” (EMPHASIS ADDED)

On July 10, 2008, Sam Stretton, Esquire, appellate counsel for Romanelli and

Otter corresponded with Clifford Levine, Esquire, counsel for the challengers, about

his knowledge of these circumstances and payments received by Levine and his firm

for their work on this case. Levine has declined to answer these queries. In 2006 and

2007, neither Romanelli and his counsel nor the Pennsylvania Commonwealth Court

and the Pennsylvania Supreme Courts were aware of this illegal activity and

misappropriation of tax money which directly impacted upon the case before the

courts.

On October 7 and 8, 2008, preliminary hearings for some of the “Bonusgate”

defendants were held in the Dauphin County Court of Common Please before

President Judge Richard Lewis. At the preliminary hearing a number of state

employees testified in public under oath about illegal campaign work performed by

them in state offices, using state computers, on state time, to challenge the petitions of

Ralph Nader in 2004 and Carl Romanelli in 2006. It is now a matter of record in the

Courts of this Commonwealth that the petition challenges to both Nader and

Romanelli were the fruit of illegal activities and misappropriation of taxpayer

resources conceived, instigated and approved by former State Representative Michael

Veon and State Representative William Deweese among others in the Democratic

Party leadership of the State House and elsewhere.

On October 21, 2008, the Supreme Court affirmed the lower court order,

thereby relinquishing jurisdiction in this matter.

The matter is now properly before the Commonwealth Court in its original

jurisdiction.

Mr. Romanelli and Mr. Otter seek to reopen this record so the full extent of

the criminal acts and misuse of tax payer funds can be discovered and further, to

reopen the record so this evidence placed before this court where a blatant fraud has

occurred.

Mr. Romanelli complied with the election laws of Pennsylvania in a good

faith submission of 94,000 signatures in support of his candidacy. Romanelli filed a

nomination package in good faith in a volume never before accomplished in

Pennsylvania, in conformity with the laws of the Commonwealth, despite the

disproportional requirement on third parties. There was no finding of fraud in this

case. Mr. Romanelli pursued his dream of running because he had issues he wanted to

talk about and was frustrated by the massive use of government funds against him,

which ultimately caused his Petitions to be stricken. Mr. Otter only tried, without

being paid hardly any legal fees, to defend Mr. Romanelli.

II. LEGAL ARGUMENT

A. Equity demands that this Court exercise its inherent power to act

where extraordinary circumstances demand it.

It is well settled that courts of this Commonwealth possess inherent power to act

where equity so demands. Great American Credit Corp. v. Thomas Mini-Markets,

Inc., 230 Pa.Superior Ct. 210, 326 A.2d 517 (1974). In such situations, the power of the

court to open and set aside its judgments may extend beyond the expiration of the appeal

period. Id. The discretionary power of the court over such judgments is, however, very

limited. Simpson v. Allstate Insurance Co., 350 Pa.Superior Ct. 239, 504 A.2d 335

(1986). Generally, judgments regularly entered in adverse proceedings cannot be opened

or vacated after they have become final, unless there has been fraud or some other

circumstances “so grave or compelling as to constitute ‘extraordinary cause’ justifying

intervention by the court.” Id. at 245, 504 A.2d at 337.

Attorney General Tom Corbett stated: “Two outstanding examples of

misappropriation of taxpayers’ resources on petition challenges were the Ralph

Nader for President of the United States in 2004 and the Carl Romanelli for the

United States Senate in 2006.” (EMPHASIS ADDED). (See Exhibit A, pages 55-59

of the Grand Jury Presentment, attached hereto.). If a criminal conspiracy to bring an

action to court and abuse the legal process does not constitute extraordinary cause

nothing does!

Justice maybe blind but it cannot be deaf and dumb in the face of a political

scandal so unimaginable and arrogant which deliberately abused legal process to further

political ends achieved through criminality.

B. The equitable Doctrine of Clean Hands bars the imposition of any

costs against the candidate and his counsel who were the victims of a

fraud upon the court through an illegal tax payer funded Election

Petition challenge.

Equity demands that the Court Order be stayed and that this case be reopened. The

original challenge to Romanelli’s United States Senate Petition was the result of

a criminal conspiracy that misappropriated tax money (See Exhibit A, pages 55-59 of

the Grand Jury Presentment, attached hereto.) to deprive Pennsylvania voters and a

candidate for a Federal office of their right to vote and run for office. The essence of our

democratic society and our government is a fair and free election process. Once the

government becomes involved in funding candidates and challenging candidates, our

democratic system no longer works. Until the Attorney General’s July 10, 2008

indictment of 11 legislative staffers and one former state representative, neither the

candidate, his counsel, the Commonwealth Court or the Supreme Court knew of the tax

payer funded criminal conspiracy that challenged various Green Party candidates for state

and federal office in 2006 or 2004. The “clean hands” doctrine requires that the party

seeking relief from the court have acted fairly and without fraud and deceit in the

litigation at issue. Shapiro v. Shapiro, 415 Pa. 503, 204 A.2d 266 (1964); Fumo v.

Redevelopment Authority, 115 Pa.Cmwlth. 542, 541 A.2d 817 (1988).

The 2006 petition challenge was brought with unclean hands by the petitioners and

their counsel, Clifford Levine, Esquire, who coincidently was the Deputy State Counsel

(Pennsylvania), Kerry-Edwards, Inc. (2004) and Statewide Election Law Co-Coordinator,

Bob Casey for Senate (2006). (See Exhibit B-portion of biography of Clifford Levine

from Thorp Reed website). In that position he had intimate information about the Nader

challenge in 2004.

Levine knew of the involvement of Veon, Manzo and others in the

2004 Nader challenge. Of course, essentially the same “experienced” cast of characters

was involved in the 2006 petition challenge since they had gained plenty of “how to”

knowledge from the 2004 challenge. This court cannot ignore the equities that are now

present in this case. Nor can this court ignore the blatant fraud upon the court by the

petition challengers and their counsel in light of the Grand Jury Presentment (See Exhibit

A, pages 55-59 of the Grand Jury Presentment, attached hereto.). To suggest that the

petition review compiled in anticipation of the 2006 challenge and illegally paid for with

tax money is “wholly extraneous” to the entire matter is disingenuous. Such a

conclusion destroys the moral authority of the Courts and to the average citizen makes

the Courts complicit with the named wrongdoers in the Bonusgate scandal. This Court

cannot rely on the recent decision of Judge Leadbetter in the Nader matter to boot strap

this gross abuse of the legal system by the challengers and their counsel.

Any suggestion that the challengers and their counsel approached this Court with

the 2006 Election Petition challenge with clean hands is belied by the Grand Jury

Presentment. (See Exhibit A, pages 55-59 of the Grand Jury Presentment, attached

hereto.) The whole Election Petition challenge proceeding was absolutely tainted by

criminal acts. “Any willful act concerning the cause of action which rightfully can be said

to transgress equitable standards of conduct is sufficient cause for closing the doors of a

court of equity to one tainted with inequitableness. Precision Instrument

Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 65

S.Ct. 993, 89 L.Ed. 1381 (1945); In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215

(1984). The clean hands doctrine does not bar relief to a party merely because his conduct

in general is blameworthy; the doctrine only applies where the wrongdoing directly

affects the relationship subsisting between the parties and is directly connected to

the matter in controversy. Estate of Pedrick.”. (Emphasis added). Giddings V. State

Board of Psychology, 669 A.2d 431, at 435 (Pa. Commw. 1995). The “successful”

petition challenge is directly connected to the matter in controversy and was corrupt from

its inception. Court approval of corruption destroys the moral authority of this Court.

But for the illegal tax payer funded work orchestrated by indicted former legislative

aides Brian Cott and Mike Manzo and counsel for the petitioners we would not all be

here. The original petition challengers and their counsel are “tainted” with the criminal

acts that allowed this matter to be brought to Court in the first instance.

Had candidate and counsel be aware of the gross criminal activity as outlined in the

Grand Jury Presentment (See Exhibit A, pages 55-59 of the Grand Jury Presentment,

attached hereto.) the candidate and his counsel would have had ample grounds for

contesting the Bill of Costs on the grounds that Levine and his Thorp Reed colleagues

lacked clean hands in this matter. Levine and his colleagues, among others, would be the

focus of additional discovery since they have been evasive on this matter since July 10,

2008.

Based on this new information, including the Grand Jury Presentment, the

indictments in the Bonus Gate Scandal, and the testimony during the preliminary hearing

which outlined the scope of the illegal activity against Mr. Romanelli in 2006 and Nader

in 2004 the record should be opened and discovery allowed so justice can prevail or in

the alternative that the order imposing costs on the candidate and his counsel be reversed.

C. The very integrity of this Court comes into question where there is

now evidence in the public record of a tainted election challenge.

On July 10, 2008, Attorney General Tom Corbett stated: “Two outstanding

examples of misappropriation of taxpayers’ resources on petition challenges

were the Ralph Nader for President of the United States in 2004 and the Carl

Romanelli for the United States Senate in 2006.” (EMPHASIS ADDED). (See

Exhibit A, pages 55-59 of the Grand Jury Presentment, attached hereto.)The

allegations of ciminal acts tht directly relate to the subject matter of the case before

this court. Any suggestion that the work performed and submitted to this court as

exhibits to the original challenge in August 2006 as part of a criminal enterprise is not

part of this matter strains credulity and offends common decency. One of the

principal architects of this scheme, Michael Manzo has already entered into a plea

agreement with the Attorney General.

Two leading Pennsylvania newspapers, The Philadelphia Inquirer and

Harrisburg Patriot News, have already editorialized that this scandal “makes the case

for Nader’s plea to overturn the order that he pay more than $81,000 in legal costs run

up by the Democrats.” (Editorial: Nader’s Payback, Philadelphia Inquirer, August 18,

2008). The Harrisburg Patriot is even more direct: “if the Grand Jury’s “allegations

ultimately are proven true in court, Nader has a right to relief from an $81,102

penalty he was assessed by Commonwealth Court.” (Editorial: If Nader was Kept

Off Ballot by State Democrats, He Deserves Court Cost Relief, July 29, 2008).

Romanelli and his counsel were likewise dunned by the Court for costs. Justice

Maybe blind but it cannot be deaf and dumb in the face of a political scandal that

sought court action to further political ends achieved through criminality.

D. Pennsylvania’s court imposed loser fees on candidates for federal

office are unconstitutional.

Ballot access is recognized as an important aspect of voting rights. See

Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) ("laws

that affect candidates always have at least some theoretical, correlative effect on

voters"). The practices of the other forty-nine states prove that Pennsylvania’s charge

for signature verification is extraordinary. No other state forces unsuccessful

candidates to pay costs or fees to challengers who force them off the ballot. No other

state demands that candidates pay for signature verification. No other state charges

filing fees of any sort that come anywhere near the $80,000+ charged to Romanelli by

the Commonwealth of Pennsylvania.

The court imposed fines in this case are akin to a financial death penalty to the

candidate and his counsel. These financial penalties also beg serious constitutional

questions.

In 1966, the U.S. Supreme Court ruled that Virginia’s $1.50 poll tax was

unconstitutional. Harper v Virginia Bd. of Elections, 383 U.S. 663, (1966). The

Court said, "It is argued that a State may extract fees from citizens for many kinds of

licenses; that if it can demand from all an equal fee for a driver’s license, it can

demand from all an equal poll tax for voting. But we must remember that the interest

of the State, when it comes to voting, is limited to the power to fix qualifications.

Wealth, like race, creed, or color, is not germane to one’s ability to participate

intelligently in the electoral process. Wealth or fee paying has no relation to voting

qualifications; the right to vote is too precious, too fundamental to be so burdened or

conditioned."

In 1972 and again in 1974, the Supreme Court applied that principle to

mandatory candidate fees, and unanimously rejected them, at least for candidates who

cannot afford them. Bullock v Carter, 405 U.S. 134, struck down Texas filing fees

that ranged from $1,424 to $6,300. Lubin v Panish, 415 US 709, struck down a

California fee of $702. In 2003, the 3rd circuit struck down Pennsylvania’s

mandatory filing fee of $200, in Belitskus v Pizzingrilli, 343 F 3d 632.

One may object that poll taxes and filing fees are not directly analogous,

because Pennsylvania candidates whose petitions are sufficient need not pay court

costs. However, when Pennsylvania requires as many signatures as it does (67,070 in

2006), it is impossible for a candidate to know in advance if his or her petition will

pass muster. To make a better analogy, imagine that Virginia had imposed a poll tax

only on voters who vote for a losing candidate instead of a winning candidate, and

that the tax was to be collected after the election was over. A voter would be told,

"Don’t worry; you may vote without paying the poll tax, IF your candidate is a

winner."

Such a hypothetical poll tax would obviously deter potential voters. Similarly,

the challenge-fee system will deter potential candidates. If deterrence is the realworld

consequence of the threatened fee, then the fee might as well have been

mandatory from at the beginning of the process. The effect is the same; candidates

will be afraid to file. This strikes at the very core of a democratic society.

Meanwhile, the only two federal courts to address the constitutionality of

charging for signature verification have either ruled the practice unconstitutional, see

McClaughlin v. North Carolina Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995), or

have demanded a complete waiver for those who cannot afford to pay. See Fulani v.

Krivanek, 973 F.2d 1539 (11th Cir, 1992). Neither candidate nor counsel can afford

to pay the fees imposed in this matter.

Would a law that forces all losing candidates to foot winners’ campaign bills

survive constitutional scrutiny? Would a poll-tax charged only to voters who

supported losing candidates? The answer to both of these questions is ‘of course not’.

Indeed, “loser pays” requirements are the worst of all worlds in the political/electoral

context. They not only discourage voters and candidates from participating, they

encourage “bandwagon” major-party politics. Far from being a free market of ideas,

the electoral arena is reduced to a political duopoly.

Of course, no state has attempted to impose a poll-tax on voters who support

losing candidates. Nor does any state charge candidates for losing. But until now, no

state has billed candidates for unsuccessfully seeking the ballot either.

The Pennsylvania system enforced through the courts raises serious 1st, 14th