Attorney Paul Rossi Resents & Rejects Criticisms Of His Legal Competency Regarding The Dismissal Of The Johnson Campaign's Petition For Costs And Attorney Fees Against The Pennsylvania Republican Party

In a letter to the Libertarian Party of Pennsylvania dated June 4, 2013, Paul Rossi, the attorney who helped the party successfully defeat GOP challenges to its submitted nomination papers to get Gary Johnson and its statewide candidates on the ballot in 2012, explained the rationale of Judge Colins in denying the Johnson campaign's petition for costs and attorney fees, and defending the timing of the filed petition.

Mr. Rossi also blasted LPPA party members who questioned his legal competence on social media sites, saying, in part:

I resent and reject any criticism from any member of your party that alleges that the motion should have or could have been filed any sooner than it was actually filed. Those individuals merely demonstrate that they lack the legal training sufficient to understand the legal basis and rationale under which the motion was filed with the Court. Furthermore, I would point out that many of these individuals were largely non-existent in August, September and October, and certainly were of no help to complete the post-petition audit sooner than it was able to be completed. I would also respectfully suggest that the legal success that I was able to secure for your party in both the Commonwealth and Supreme Courts in 2012 ought to have entitled me to a phone call from these party members to discuss Judge Colin's decision before they decided to engage in defamatory speech against my representation of a client in which they had no direct interest, nor were privy to the confidential discussion of legal issues and tactics sufficient for them to form an opinion based on facts.

The entirety of the portion of the letter dealing with "The National Campaign's Motion for Costs and Attorney Fees" is as follows:

"As you are aware, the national campaign decided in late 2012 to seek costs and fees from the Pennsylvania Republican Party based on information developed after an extensive (and time consuming) audit of the available work papers generated during the court-ordered review of your 2012 nomination papers. As you are also aware, Judge Colins denied the national campaign's motion. Subsequent media reporting of Judge Colins' decision was scant and abbreviated. As a result, the precise nature of Judge Colins' decision has not been properly presented to your membership. I want to address and clarify a few of the misconceptions that have, apparently, arisen as a result of the poor quality of the media coverage of Judge Colins' decision.

* The decision to seek costs and fees from the GOP was a decision taken by the national campaign committee. My client was the national campaign, not the state party. Accordingly, no officer, or any other member of the state party bears responsibility for the decision or the time table to file the fee petition against the GOP.

* The legal foundation for the fee petition was based on an extensive audit of the available work papers generated during the signature review process. The audit, begun on October 12, 2012, lasted 2 1/2 months and required over 400 hours to complete. The audit encompassed a review and comparison of over 375,000 different data points and uncovered systemic GOP violation of Judge Colins' own order detailing certain conduct expected of both parties during the signature review process. In short, the audit uncovered conclusive evidence that the GOP intentionally manipulated the daily reporting of signature review totals by improperly depressing the total number of valid and unchallenged signatures on a daily basis.

* The GOP's manipulation of early data was clearly done to impose the maximum amount of pressure on Libertarian candidates to withdraw their nomination papers to avoid the explicit GOP threat to seek the imposition of their costs and attorney fees against your party in the event the Court rejected your 2012 nomination papers.

* I volunteered/donated over 400 hours of my time to complete the audit for the national campaign committee. Due to the large amount of data that had to be reviewed and the complete lack of financial resources to hire an accounting firm to do the audit for the campaign committee, I was not able to complete the audit until mid-December, at which point I immediately (i.e. the very next day) filed our petition for costs and fees with Commonwealth Court.

On this point, given the large number of hours that I donated to your party to help establish if there was a proper basis to file a motion for costs and fees against the GOP, I resent and reject any criticism from any member of your party that alleges that the motion should have or could have been filed any sooner than it was actually filed. Those individuals merely demonstrate that they lack the legal training sufficient to understand the legal basis and rationale under which the motion was filed with the Court. Furthermore, I would point out that many of these individuals were largely non-existent in August, September and October, and certainly were of no help to complete the post-petition audit sooner than it was able to be completed. I would also respectfully suggest that the legal success that I was able to secure for your party in both the Commonwealth and Supreme Courts in 2012 ought to have entitled me to a phone call from these party members to discuss Judge Colin's decision before they decided to engage in defamatory speech against my representation of a client in which they had no direct interest, nor were privy to the confidential discussion of legal issues and tactics sufficient for them to form an opinion based on facts.

* Because the GOP's bad-faith conduct was intentionally hidden from both the Libertarian Party and the Court, the systemic nature of the bad-faith conduct was not, and could not have been, discovered except upon completion of the post-petition audit of the many documents generated during the review of your nomination papers. Accordingly, the national campaign could not have filed the motion for costs and fees until after the national campaign had good-faith evidence of the GOP's vexatious conduct which was established only in late-December, 2012.

* The national campaign's motion for costs and attorney fees was filed pursuant to the "discovery rule" of the "doctrine of equitable tolling" which provides that any deadline to file a claim with a court does not begin to run until after the injured party has discovered the legal basis to file a claim.

For instance, if you discover that your neighbor poisoned your well water 5 years ago, the two year deadline to file a lawsuit against your neighbor does not start to run until after you discover the facts necessary to support a lawsuit against your neighbor. The national campaign properly argued that because the GOP intentionally hid their bad-faith conduct from the Libertarian Party, their systemic conduct could not have been reasonably discovered until December 2012, and, therefore, their motion for costs and fees was timely filed with Commonwealth Court. Accordingly, contrary to the AP story, the national campaign did not file their motion in violation of any established deadline.

Furthermore, Rule 2751 of the Pennsylvania Rules of Appellate Procedure (the Rules that govern litigation procedure in Pennsylvania Commonwealth Court) does not impose a specific deadline to file a motion for costs and/or attorney fees in Commonwealth Court. Instead, the Rules impose a duty on a party seeking the imposition of costs and/or attorney fees against an opposing party to file the motion "before the record is remanded, unless the appellate court, for cause shown, shall otherwise direct." Since the challenge to your nomination papers was filed directly with Commonwealth Court, there was no other court to which the record could be remanded, and therefore, there was no effective deadline imposed by Rile 2751 for the national campaign to file a motion for costs and/or fees in this case.

* Judge Colins also expressly noted in his opinion that Section 5505 of the Pennsylvania Judicial Code (the statutory provision under which we sought attorney fees) does not impose any deadline to file a petition for attorney fees as a sanction for bad-faith conduct. Judge Colins further explained that there is also no case law that imposed any deadline to file a fee petition under Section 5505 of the Judicial Code. Accordingly, the decision by the national campaign committee to file a petition for costs and attorney fees was not made beyond any established statutory deadline.

* In fact, in response to the fee petition, and recognizing the strength of our legal arguments, the GOP made a financial offer to settle the litigation. The decision was made by the national campaign that our legal position was strong enough to reject the GOP's financial offer and to seek the full amount of costs and fees demanded by the petition.

* Instead, Judge Colins denied our fee petition based in large part on his determination that because both sides had worked diligently toward resolving the status of contested signatures, the GOP's conduct did not rise to the level of bad faith sufficient to warrant the imposition of costs and fees (a legal determination with which I do not agree). Specifically, the Court explained:

Objectors (the GOP) did challenge over 10,000 signatures that were in fact valid and not the subject of any legal dispute and erroneously contested over 2,000 valid signatures in the initial round of signature review  and  stipulation. Although  the  large  number  of  erroneous challenges  is  disturbing,  it  does  not  by  itself  show  bad  faith  by Objectors where Objectors also affirmatively cooperated to resolve the validity disputes by stipulation and there was a substantial amount of error on both sides.  Candidates submitted over 24,000 signatures that they  ultimately stipulated  invalid,  and Candidates’  reviewers  in  the initial round of signature review refused to stipulate to the invalidity of over  6,000  signatures  that  their  attorney  later  agreed  could  be stricken.  While the Court recognizes that Candidates had reason to be willing to strike contested signatures to expedite the resolution of the ballot challenge because they did not need those signatures, it cannot be said that Objectors’ initial contentions on signature validity were less accurate than Candidates’ positions or that Objectors’ initial reviewers acted significantly differently from Candidates’ initial reviewers.  Given the closeness of the margin of valid signatures here in comparison to the number of signatures required and submitted, coupled with the professionalism and cooperation by Objectors, as well as Candidates, in resolving tens of thousands of signature disputes by stipulation, neither costs nor attorney fees in defending the Petition to Set Aside as a whole are warranted.

In other words, part of the reason that Judge Colins rejected the national campaign's motion for costs and fees was based, in part, on the fact that the Libertarian candidates submitted so many invalid signatures that the scales of justice balanced out such that the GOP's conduct was no worse than that of the Libertarian Party's conduct.

Judge Colins rejected our "equitable tolling" argument in support of the motion's timeliness based on his analysis that because we were aware of certain instances of GOP errors during the signature review that we were on sufficient notice of the GOP's conduct to have filed a fee petition earlier than late-December. In short, Judge Colins determined, in his mind, that we simply should have filed sooner than we did and that the national campaign had "sat" on their claims for too long - a novel standard that flatly ignores the fact that the GOP intentionally hid their conduct from both the Court and the Libertarian Party, and the 2 1/2 months that it took to uncover their bad faith was necessary for the national campaign to ethically file, in good faith, the petition for costs and fees.

At the outset, the national campaign committee understood that it would be very difficult to secure an award of costs and fees against the GOP because Judge Colins had openly complimented, in written opinions, legal counsel for both the Libertarians and the GOP. We had the difficult hurdle of trying to convince Judge Colins to publicly reverse his prior glowing characterizations of both litigation teams involved in the 2012 challenge to your nomination papers.

While the primary goal of the petition for costs and fees was to financially punish the GOP for its conduct during their challenge to your 2012 nomination papers, a secondary goal was to place the GOP on notice that they too can be threatened with the imposition of costs and attorney fees if and when their challenge to your nomination papers fail in the future. This initial salvo against the GOP will be aggressively reinforced the next time they seek to challenge your nomination papers. In fact, the new First Amendment litigation that the Board has authorized is part of a broader litigation strategy to deprive the GOP of easy challenges to your nomination papers and to make it easier for the Libertarians to establish the GOP's bad faith conduct if they insist on making challenges in the future without a proper good faith basis."