Last week, the York County, PA solicitor announced her resignation. Two days later she served the President Commissioner Julie Wheeler with a cease-and-desist letter for defamatory comments allegedly made in her private capacity, the details of which have not been released to the public.
The RINO commissioner, Ron Smith, then spoke to the press in his role as commissioner, who speaks for the people of York County, not in his personal capacity, castigating Julie’s alleged words and called for a full investigation into a private citizen using taxpayer dollars.
In case you find the following details so disturbing, feel free to let John O’Neill, GOP Chairman, know of your consternation. ([email protected]). This email chain sets up the following below:
“No John, this is not reminiscent of the call to censure Mike Jones. Not even close. What Mike did was in his personal capacity, which he had a right to do. Telling others who you support in your personal capacity is not wrong. What Ron did had nothing to do with supporting candidates in his personal capacity. What Ron did was in his capacity as a commissioner, and it was wrong. Again, if he will not assume some humility and publicly apologize, then he needs to be admonished for it, unless of course, you think it is acceptable to tarnish reputations as a public official in this manner? It’s quite simple. Why are you defending Ron’s actions, John? Why has a public statement denouncing his actions not been made yet, John? I think it is important for the people of the committee to see what conversations are being had by the “executive board” apart from them. The executive board does not get to make all of the calls, especially when it comes to censuring. You have a political body in the committee people that has a very large voice as well.
JW
From: Eric F. Haywood <[email protected]>
Date: Wed, Mar 22, 2023 at 8:31 PM
Subject: Re: York County Republican Committee – Action Required – Fwd: call to action: 94th district committeepersons
To: JOHN O’NEILL <[email protected]>
CC: GOP Holly Kelley <[email protected]>
Mr. Chairman,
Thank you very much for your response. I am glad to know you were able to speak with both parties and will follow the situation. I will pass that you are aware to others who may have concerns. I agree that the censure button should be only in rare cases and for good reason. In matters such as this, the endorsement and the recommended/ not recommended process becomes all the more important. We should fully support an individual right to free speech, while at the same time defending what we know is right against what we know to be wrong.
Eric
On Wed, Mar 22, 2023 at 6:39 PM JOHN O’NEILL <[email protected]> wrote:
This is reminiscent of the calls to censure Mike Jones for his comments and actions in the last primary. I was vocally opposed to censure then and am opposed to censure in this case for the same reasons. I have spoken to both parties (Julie and Ron) on this matter and am following the situation very closely. The censure button is used in very rare cases for good reason, it is the nuclear option. In this case the inflammatory and accusatory comments have not triggered an investigation and appear to be of a civil and political nature. As such it is not prudent at this time for the party to censure. Depending on how this evolves the party may or may not take action in the future. I caution all not to take kneejerk reactions as they tend to only add fuel to the fire.
From: Eric F. Haywood Sent: Wednesday, March 22, 2023 4:16 PM To: John O’Neill; GOP Holly Kelley; Tim Barker; Maureen Bereznak; Greg Blymire; David Brinton; [email protected]; Richard Hill; Tom Kearney; Kyle King; Jeff Kissling; George Margetas; Legal Counsel Jared Mellott; Tom Metz; Linda Myers Drei; Carmine Pantano; John Popovich; 169 Scott Roland; Nicholas Shields; Bryan Tate; Jake Taylor; Caroll Tignall Jr.; Paula Vitz; Eric White; Therese Laucks Subject: York County Republican Committee – Action Required – Fwd: call to action: 94th district committeepersons
Attention Executive Committee Members,
Please be advised of the following. I believe there needs to be an immediate response.
Sincerely,
Eric F. Haywood, Sr
——- Original Message ——-
On Wednesday, March 22nd, 2023 at 1:40 PM, <[email protected]> wrote:
Dear Fellow York County Committeepersons:
Last week, the York County Solicitor, Michelle Pokrifka, publicly announced her resignation. In the days after, Ms. Pokrifka sent President Commissioner Julie Wheeler a cease-and-desist letter accusing her of disparaging remarks purportedly made after Ms. Pokrifka had turned in her resignation. Following the letter sent to Ms. Wheeler, Commissioner Ron Smith spoke with the press, voicing his support for Ms. Pokrifka and called for a full investigation into the matter. In his statement, Ron described the allegations as “very disconcerting” and that he and his fellow Democratic colleague “have the responsibility to our employees and to the York County taxpayers to fully investigate what has transpired and take the appropriate actions so that everyone can be reassured these types of actions will not be tolerated.”
Ron is using his position as a county commissioner to weaponize the county government against his political opponent and colleague on the Board of Commissioners before the primary election in a concerted attempt to use taxpayer dollars to conduct a full investigation into remarks allegedly made by Ms. Wheeler in her personal capacity, not in her role as a commissioner. This move is irresponsible and entirely politically motivated, as all private citizens have a right, backed by overwhelming support of case law precedent, to criticize their government officials. The county has no authority to investigate the alleged words of a private citizen. The taxpayers of York County will not stand by and watch their elected officials abuse their position and waste their hard-earned money by engaging in a publicity stunt. Ms. Pokrifka has not called for an investigation into the matter, nor any further action of any kind, and has stated that the issue has been resolved, as quoted by her in the York Dispatch.
“Any potential claims”, Pokrifka said, “would be against Wheeler in her capacity as an individual — not against the county nor in Wheeler’s capacity as a commissioner.”w
While Ms. Pokrifka has not released any details of her accusations of Ms. Wheeler to the public, Ron wasted no time seizing the opportunity to smear his colleague by publicly rushing to Pokrifka’s defense. Ron is working to divide the Republican party by attacking his fellow Republican colleague at a time where the party must remain united. It appears that Ron is colluding with Democrats and faux Republicans in order to secure his re-election while inflicting damage to the Republican party. In 2020, Ms. Pokrifka donated to ActBlue, a left-leaning organization, for the purpose of supporting the chairman of the Democratic National Committee, Jaime Harrison. Why is the solicitor, a registered Republican, contributing to the campaign of the Democratic party’s chairman?
Ms. Pokrifka’s credibility has largely deteriorated over the course of her role as York County Solicitor. Last year, Pokrifka entered York County into a Supreme Court lawsuit over the counting of undated or incorrectly dated ballot envelopes against the Republican Party. During a meeting with the commissioners at which several other county officials were present, including the solicitor and solicitor’s assistant, several legislators, and myself, Ms. Pokrifka lied about the county’s role in the lawsuit, along with several other items of interest. When evidence of her dishonesty was presented, Ron remained silent. Why did Ron not speak up to defend the unethical interjection that acted in opposition to his party? Why is Ron instead aligning himself with a prevaricator with a tainted reputation instead of defending his fellow Republican colleague with good standing in the community?
A clear message must be sent to the voters of York County that the Republican party stands united as a party of character and values, law and order, and that actions such as these are not a reflection of the party as a whole and will not be tolerated. I am calling on each one of you to contact York County GOP leadership, John O’Neil ([email protected]) and Holly Kelly ([email protected]), to request that they issue a public statement/press release denouncing Ron’s actions and request an immediate retraction statement and apology to Ms. Wheeler and his constituents. Whether or not we choose to collectively endorse the county commissioner race this weekend, should Ron choose not to proceed with integrity and humility, I would ask that each of you consider an affirmative vote to censure him for this cause. Both Pat Toomey and Liz Cheney were recently censured by the party for their negative actions, have been removed from a position of power within the party, and the Republican party is far better off for it. Liz Cheney lost her re-election in a landslide defeat to a constitutional attorney better suited to represent the party, who went on the win the US House seat for the Republicans. The party owes no allegiance to incumbents that do not embody our values. Now is not the time for the county GOP to waiver over division. Ron’s response to Ms. Pokrifka’s public statement was divisive. We must remain united against assaults like these to our members.
I welcome Ron Smith and Michelle Pokrifka to challenge any of my well-documented claims, and I look forward to hearing your concerns voiced at Saturday’s county-wide meeting. I apologize if I’ve forgotten anyone in this communication. If it appears that, during your conversations with others, I have left anyone out in your district, please feel free to forward this email to them.
He tried to make it appear to the public that he was taking a stance based on ethics, but……
One of Ron’s best buds, who also works very hard on his campaign, owns and runs a sex toy/porno site. TALK ABOUT ETHICS. What a hypocrite. Eric J. White is known in the community to be very close with Ron. Almost half of Eric’s Facebook page is full of pictures of him and Ron. https://www.facebook.com/EmporerEJ
He also openly discloses his sex toy business on his page.
The website is www.virtualsexmachine.com. Be prepared, if you choose to look at it, because it is very gross. It appears that he may have gotten tipped off that maybe, people were looking into his sick predilections. Why do I say this? at Because this dreadful website was working around 8pm March 23, 2023, but then down by 11:30pm. And since the internet is forever (Thanks to Al Gore!) It has been archived a thousand times over on wayback machine here, https://web.archive.org/web/20220801000000*/WWW.VIRTUALSEXMACHINE.COM.
The “Meet the Girls” tab is utterly disgusting. Be prepared, there is not enough bleach to burn your eyes…
Eric also has other disgusting posts on his main FB page, like a video of a girl doing dirty things to a corn cob. Who in their right mind thinks up this stuff?
A simple internet search of Eric J. White and Virtual Sex Machine reveals much, including this video where Eric was apparently on Glenn Beck back when Glenn Beck was doing CNN.
This picture of Ron and Eric is the best photo op because Ron is wearing his candidate badge and a shirt with the county badge and Eric has his full name embroidered on his shirt with the York County GOP badge (dirty bird wears this shirt all the time). There are photos upon photos of those two on his FB page.
Let’s take stock, shall we? What do we really have here?
We have a commissioner pretending to be holier than thou who frequently runs around with a pervy porno man.
DRUM ROLL PLEASE ……..
And now here is the sticking point…Eric J. White sits on the Executive Board of the York County GOP AND is helping to run Ron’s campaign. The GOP chairman is refusing to make a public statement or even write a letter to Ron’s campaign denouncing his actions and call for a public retraction and apology. His excuse is that the media will spin it and give the Dems the win in November, when in reality he’s been playing both sides and riding the middle.
Several members of the Executive GOP board are working on Ron’s campaign. About 10 days ago he appointed Claire Weigel to the board, who is helping to run Ron’s campaign, along with Rebecca Ream-Weigle, his wife, who also sits on the board.
Sunlight is the best disinfectant…. what’s really going on? It would seem the chairman is really supporting Ron behind the scenes, thus keeping him from doing the honorable and right thing.
Ron has acted unethically and the GOP is refusing to hold him accountable because the majority of the Executive Board is helping to run his campaign. Eric needs to be revealed for what he is and removed from the board and Ron needs to be revealed for the giant hypocrite he is.
FYI: PA Supreme Court case number is 102 MM 2022. York County joiner below:
Filed 10/19/2022 10:11:00 AM Supreme Court Middle District 102 MM 2022
IN THE SUPREME COURT OF PENNSYLVANIA
DAVID BALL, et. al., : :
Petitioners,
: No. 102 MM 2022
: v. : : LEIGH M. CHAPMAN, et al., : : Respondents. : :
JOINT RESPONSE OF RESPONDENTS BEDFORD COUNTY, CARBON COUNTY, CENTRE COUNTY, COLUMBIA COUNTY, DAUPHIN COUNTY, FAYETTE COUNTY, HUNTINGDON COUNTY, INDIANA COUNTY, JEFFERSON COUNTY, LAWRENCE COUNTY, LEBANON COUNTY, NORTHUMBERLAND COUNTY, VENANGO COUNTY AND YORK COUNTY BOARDS OF ELECTIONS IN OPPOSITION TO PETITIONERS’ APPLICATION FOR THE EXERCISE OF KING’S BENCH POWER OR EXTRAORDINARY JURISDICTION
Respondents Bedford County Board of Elections, Carbon County Board of Elections, Centre County Board of Elections, Columbia County Board of Elections, Dauphin County Board of Elections, Fayette County Board of Elections, Huntingdon County Board of Elections, Indiana County Board of Elections, Jefferson County Board of Elections, Lawrence County Board of Elections, Lebanon County Board of Elections, Northumberland County Board of Elections, Venango County Board of Elections and York County Board of Elections, (collectively “Respondent Counties”), by and through their undersigned counsel, Babst, Calland, Clements & Zomnir, P.C., file this Answer in Opposition to Petitioners’ Application for the
Exercise of King’s Bench Jurisdiction or Extraordinary Jurisdiction. 1
RESPONSE
Preliminarily, while the Republican National Committee and the other Petitioners (collectively the “RNC”) use the terms “King’s Bench power” and “extraordinary jurisdiction” interchangeably, (see, e.g., Application at 11), “the two are not identical.” In re Avellino, 690 A.2d 1138, 1140 (Pa. 1997). While King’s Bench power can be invoked where no matter is pending before a lower court, the same is not true for an exercise of extraordinary jurisdiction. Extraordinary jurisdiction can only be invoked if—and only if—the matter is pending before a lower court. See, e.g., Avellino, 690 A.2d at 1140. Therefore, to the extent that the Application requests the exercise of extraordinary jurisdiction, it must be denied.
The Application fares no better with respect to the RNC’s request for King’s Bench jurisdiction. King’s Bench power must be employed “with extreme caution,” Commonwealth v. Balph, 3 A. 220, 230 (Pa. 1886), and justiciability concerns militate against the exercise of such jurisdiction here.1 This case centers around the Acting Secretary of the Commonwealth’s guidance regarding the date requirement for an absentee or mail-in ballot in Pennsylvania. (Application at 1-5). However,
1 See, e.g., Bayada Nurses, Inc. v. Dep’t of Labor & Indus., 8 A.3d 866, 874 (Pa. 2010) (“While
the right to relief under the Declaratory Judgments Act is broad, there are certain limitations upon a court’s ability to make a declaration of rights. Generally, our judicial system requires a real or actual controversy before it will embrace a matter for review and disposition. Our Court has noted, however, that, while we do not have a constitutional case or controversy requirement, as found in our federal system, [s]everal discrete doctrines—including standing, ripeness, and mootness— have evolved to give body to the general notions of case or controversy and justiciability.”
(alteration in original; citation and quotation marks omitted)).
2
and as conceded by the RNC, the Acting Secretary’s guidance “[is] not binding on the county boards of elections.” (Id. at 23).
Equally important, the RNC has not identified a single county board of elections that intends to follow the Acting Secretary’s guidance and count an undated or incorrectly dated absentee or mail-in ballot. (Id. at 4 (alleging, without any factual support, that some unnamed county boards “may” count an undated or incorrectly dated ballot)). To the contrary, the RNC asserts that “[c]ounty boards of elections have . . . informed their voters that their ballots will not be counted if they do not comply with the date requirement.” (Id. at 2). Because this matter involves an abstract disagreement between the RNC and Acting Secretary, it is not ripe for adjudication. See, e.g., Phila. Entm’t. & Dev. Partners, L.P. v. City of Phila., 937 A.2d 385, 392 (Pa. 2007) (“The basic rationale underlying the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”)
Indeed, for this same reason, RNC lacks standing to even file this action. See,
arises from the principle that judicial intervention is appropriate only when the underlying controversy is real and concrete” (citation and quotation marks omitted)). To conclude otherwise would require this Court to issue an advisory opinion about hypothetical conduct, in violation of a fundamental principle of Pennsylvania law.
See, e.g., Pittsburgh Palisades Park, LLC, v. Commonwealth, 888 A.2d 655, 659 3
e.g., Rendell v. Pa. State Ethics Comm’n, 983 A.2d 708, 717 (Pa. 2009) (“
standing
(Pa. 2005) (“The courts in our Commonwealth do not render decisions in the abstract or offer purely advisory opinions[.]”).
Even assuming, arguendo, that a case or controversy exists, the Application should still be denied. First, the timing of the Application is questionable, if not suspect. Although the RNC tries to give the appearance that it filed the Application in response to last week’s ruling in Ritter v. Miliori, No. 22-30, 2022 WL 6571686 (U.S. Oct. 11, 2022), the RNC has known since at least September 26, 2022, that the Acting Secretary advised county boards of elections to include in the canvass and pre-canvass “[a]ny ballot-return envelope that is undated or dated with an incorrect date but has been timely received.” (Application, Ex. A).
Yet, the RNC — who, among other parties, has filed countless challenges to how Pennsylvania counties administer elections since the 2020 General Election2 — inexcusably waited until October 16, 2022, to file the Application, well after when most counties mailed-out ballots to lawfully registered voters who requested the same. Thus, while King’s Bench jurisdiction is designed to remedy deficiencies in the “ordinary processes of law,” In re Bruno, 101 A.3d 635, 671 (Pa. 2014), this
2 This includes the following inexhaustive list matters which involved the Respondent Counties herein: Republican Party of Pennsylvania v. Kathy Boockvar, Secretary of Pennsylvania, No. 20A54 (2020); Donald J. Trump for President, Inc. et al. v. Boockvar et al., No. 2:20-cv-00966- NR (W.D. Pa. 2020); Donald J. Trump for President, Inc. et al. v. Boockvar et al., 4:20-cv-02078- MWB (M.D. Pa. 2020);Pennsylvania Voters Alliance et al. v. Centre County et al., 4:20-cv-01761- MWB (W.D. Pa. 2020); Bognet, et al. v. Boockvar, et al., No. 3:20-cv-215-KRG (W.D. Pa. 2020); McCormick for U.S. Senate et al. v. Leigh M. Chapment, et al., No. 286 MD 2022 (Pa. Cmwlth. 2022); McCormick et al., v. Chapman et al., No. 46 MM 2022 (Pa. 2022); RNC et al. v. Leigh M. Chapman., et al., No. 100 MAP 2022 (Pa. 2022) (currently pending before this Court on appeal from No. 447 MD 2022 (Pa. Cmwlth. 2022)).
4
Court has never suggested, much less held, that a party who manufacturers an alleged deficiency is entitled to that relief.
Moreover, the Application involves issues of disputed fact—specifically, which of Pennsylvania’s 67 Counties, if any, intend to count an undated or incorrectly dated absentee or mail-in ballot. (Application at 4 (“[S]ome county boards of elections may follow the plain statutory text, the Acting Secretary’s website, and their own instructions to voters and decline to count an undated or incorrectly dated absentee or mail-in ballot. . . . On the other hand, other county boards may choose to follow the Acting Secretary’s guidance and to count any undated or incorrectly dated ballot.”)). Because the Commonwealth Court often sits as a trial court as part of its original jurisdiction, the Commonwealth Court, unlike this Court, is “organized to support orderly fact-finding.” Friends of Danny DeVito v. Wolf, 227 A.3d 872, 904 (Pa. 2002) (Saylor, C.J., joined by Dougherty, J. and Mundy, J.). It thus stands to reason that the Commonwealth Court “can more appropriately administer the necessary judicial consideration in the first instance, subject to appellate review by this Court if necessary.” Id.
Further, the Application is motivated, at least in part, upon the RNC’s belief that the Commonwealth Court will continue to, in the RNC’s words, “depart[] from the General Assembly’s date requirement” even though the U.S. Supreme Court vacated the Third Circuit’s ruling in Ritter. (Application at 10 (“[T]he
Commonwealth Court twice has departed from the General Assembly’s date
5
requirement and the majority’s construction in unpublished, non-precedential cases arising out of the 2022 Republican primary election or U.S. Senate.”); accord id. at 16). The RNC, though, offers no support for this contention.3 Regardless, the purpose of King’s Bench jurisdiction is “not to permit or encourage parties to bypass an existing constitutional or statutory adjudicate process.” Bruno, 101 A.3d at 670.
Finally, granting the Application could set a dangerous precedent. If an issue that the RNC claims has been settled law since October of 2020 (Application at 13- 14) is a sufficient basis to invoke King’s Bench power two years later, then virtually any issue — election or otherwise — will satisfy the criteria to exercise such jurisdiction. Therefore, instead of confining King’s Bench authority to reviewing “an issue of public importance that requires timely intervention by the court of last resort to avoid the deleterious effects arising from delays incident to the ordinary process of law,” Commonwealth v. Williams, 129 A.3d 1199, 1206 (Pa. 2015), the exercise of King’s Bench jurisdiction will become the norm. Were that to occur, the consequences for the Pennsylvania judicial system would be dire.
For the foregoing reasons and any additional reasons offered by the other Respondents, this Court should deny the Application. See, e.g., In re Domitrovich, 257 A.3d 702, 715 (Pa. 2021) (“Keeping in mind that we should exercise our King’s
3 That said, it should not be lost on this Court that the RNC filed this Application shortly after the Commonwealth Court rejected a different challenge from the RNC regarding mail-in ballots. Memorandum Opinion in Republican National Committee, et al. v. Chapman, et al., No. 447 MD 2022 (Sept. 29, 2022) (per Ceisler, J.).
6
Bench authority with extreme caution, we decline to exercise it here[.]” (citation omitted)).
WHEREFORE, Respondents Bedford County Board of Elections, Carbon County Board of Elections, Centre County Board of Elections, Columbia County Board of Elections, Dauphin County Board of Elections, Fayette County Board of Elections, Huntingdon County Board of Elections, Indiana County Board of Elections, Jefferson County Board of Elections, Lawrence County Board of Elections, Lebanon County Board of Elections, Northumberland County Board of Elections, Venango County Board of Elections and York County Board of Elections respectfully request that this Honorable Court deny Petitioners’ Application for the Exercise of King’s Bench Power or Extraordinary Jurisdiction and enter the form of Order submitted herewith.
Respectfully submitted,
BABST, CALLAND, CLEMENTS and ZOMNIR, P.C.
/s/ Elizabeth A. Dupuis
Elizabeth A. Dupuis, Esquire PA I.D. No. 80149
Casey Alan Coyle, Esquire PA I.D. No. 307712
Anna S. Jewart, Esquire
PA I.D. No. 328008
330 Innovation Boulevard, Suite 302 State College, PA 16803
(814) 867-8055 [email protected][email protected]
Counsel for Respondents Bedford County, Carbon County, Centre County, Columbia County, Dauphin County, Fayette County, Huntingdon County, Indiana County, Jefferson County, Lawrence County, Lebanon County, Northumberland County, Venango County, and York County Boards of Elections
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
/s/ Elizabeth A. Dupuis Date: October 19, 2022 Elizabeth A. Dupuis, Esquire
IN THE SUPREME COURT OF PENNSYLVANIA
DAVID BALL, et. al., Petitioners,
v.
LEIGH M. CHAPMAN, et al.,
Respondents.
:
:
: No. 102 MM 2022 :
:
:
:
:
:
:
ORDER
day of
, 2022,
having
Received 10/19/2022 10:11:24 AM Supreme Court Middle District
AND NOW, this
considered Petitioners’ Application for the Exercise of King’s Bench Power or Extraordinary Jurisdiction and all answers submitted in opposition thereto, it is hereby ORDERED, ADJUDGED and DECREED that Petitioners’ Application for the Exercise of King’s Bench Power or Extraordinary Jurisdiction is DENIED.
PER CURIAM:
J.
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