Fayette judge denies fraudulent campaign materials allegations in 51st District race
A Fayette County judge has denied the petition for a temporary restraining order against a candidate for the state House seat in the 51st District, citing the close proximity of the request to Tuesday’s election.
Last Thursday, attorneys for state Rep. Matthew Dowling, R-Uniontown, argued in court that his opponent, South Union Township Democrat Tim Mahoney, should be court-ordered to correct what Dowling contended were lies in a campaign mailer and on Mahoney’s campaign Facebook page.
“By reason of the filing of this petition on the eve of the election, we are denied the benefit of scheduling a hearing, there is no sworn testimony, and there is no opportunity to judge the credibility of those offering testimony,” Senior Judge Gerald R. Solomon wrote in an opinion issued Monday.
Dowling’s attorney, Lane M. Turturice, said the petition was filed nine days before the election, but the court would not entertain hearing anything regarding the petition until Nov. 3.
When both parties appeared for court on that date, they were told the case was administratively reassigned to Solomon, he said.
“In the end, the court chose not to take any testimony or hold any oral argument, but instead chose to decide the matter based strictly on the filings submitted to the court,” Turturice said. “My client respects the court’s decision and the rule of law, but I think if the court would have been able to devote more time to the matter it might have seen things much differently.”
The men will face off for a two-year house term at the polls, with Dowling looking to retain the seat for a second term and Mahoney looking to regain the seat he held for five terms, until his 2016 loss to Dowling.
Mahoney’s attorney, James T. Davis, called the court action “an attempt at the 11th hour to gain publicity and notoriety.”
“I’m just glad it’s settled,” Mahoney said. “People will realize who’s been telling the truth all along.”
“It’s disappointing that the judge chose to decline our preliminary injunction,” Dowling said Monday. He said he’s also disappointed that his opponent hasn’t been clear about Dowling’s record. “I have knocked on thousands of doors across the district, and I am confident that voters know the truth and will make the right decisions tomorrow when they vote.”
Davis said the petition for the preliminary injunction was a way to silence the Mahoney campaign on what political speech it can make.
“The 1st Amendment protects all speech and particularly grants the greatest protection to political speech,” Davis said. “The court agreed with us that what Dowling sought was to suppress — unconstitutionally — political speech.”
Turturice contended Mahoney incorrectly posted information to a Facebook page claiming Dowling receives a state-paid per diem on top of his legislative salary. Turturice said the legislator takes expenses for actual reimbursements and submitted a letter from the state confirming that.
“Since we do not have any certified records before us, we cannot make a determination as to whether (Dowling) does or does not accept the per diem,” Solomon found. The judge noted, however, that the posting does not explicitly say whether Dowling did or did not accept one.
The second issue involved a campaign mailer in which the Mahoney campaign quoted Dowling as saying all he cared about were his state-paid benefits. Turturice argued Dowling never said that, and challenged Mahoney’s campaign to cite where the quote was from.
Solomon found that other than an attachment of the mailer from Turturice, there’s no mention of who paid for the mailer, who sent the mailer or to where the mailer was sent, and, therefore, the argument has no merit.
Finally, Solomon addressed the argument of Mahoney’s website stating that Dowling was involved in business dealings at the former Kezmarsky Funeral Home. The owner of the former business has been charged with stealing money from clients.
Turturice had argued that Dowling was a paid consultant for a short time, but Solomon said an exhibit submitted by Davis of a 2017 Business Plan in the funeral home’s bankruptcy filings has Dowling listed as a chief operating officer. Among his duties in that role were keeping employee files, verifying that all records are maintained with state and federal mandates, overseeing payroll, accounts payable, accounts receivable, vendor relations and responsible for day-to-day operations and employees.
“This is all available to the public,” Davis said, adding that all the statements that were challenged by Dowling were all facts. “Anyone in the public can look it up and draw their own conclusions.”
Turturice said Solomon seemed to have analyze the case based on the law of defamation, because Solomon states on two occasions that Dowling is a public figure and bears a heavier burden in pursuing his claims than a non-public figure.
“My client sought an injunction to prohibit further violations of the Election Code, not simply to prohibit Mr. Mahoney from telling lies, distorting my client’s record and deliberately misleading voters about the facts,” Turturice said, adding he disagrees that Dowling has a higher burden of proof to prove election code violations. “This is not a defamation case, this is a case of a violation of the Election Code and my client sought court intervention to stop further violations.”
The 51st Legislative District covers Fayette and Somerset counties.