Hempfield School Dist. v. Election Bd. of Lancaster County

• Decision Date: 09 May 1990
• Citation: 574 A.2d 1190,133 Pa.Cmwlth. 85
• Parties: , 60 Ed. Law Rep. 827 HEMPFIELD SCHOOL DISTRICT, Appellant, v. ELECTION BOARD OF LANCASTER COUNTY, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1190

574 A.2d 1190

133 Pa.Cmwlth. 85, 60 Ed. Law Rep. 827

HEMPFIELD SCHOOL DISTRICT, Appellant, v. ELECTION BOARD OF LANCASTER COUNTY, Appellee.

Commonwealth Court of Pennsylvania.

Argued May 3, 1990.

Decided May 9, 1990.

Robert A. Longo, Martin, Honaman & Longo, Lancaster, for appellant.

John W. Espenshade, Sol., for appellee.

George T. Brubaker, with him, Robert M. Frankhouser, Jr., Hartman, Underhill & Brubaker, Lancaster, for amici curiae, School Dist. of Penn Manor, and the School Dist. of Lancaster.

Before McGINLEY and SMITH, JJ., and BARRY, Senior Judge.

SMITH, Judge.

Before this Court is the appeal of Hempfield School District (Hempfield) from the April 23, 1990 order of the Court of Common Pleas of Lancaster County dismissing Hempfield's request to enjoin the Election Board of Lancaster County (Election Board) from including a non-binding referendum question on the May 15, 1990 primary ballot pursuant to request of the Council of Concerned Citizens, the Board of Supervisors of Hempfield Township and the Mountville Borough Council.

The Election Board held a special meeting on March 26, 1990 at the conclusion of which a resolution was passed authorizing placement of a non-binding referendum on the May 15, 1990 ballot. The proposed referendum reads as follows: "DO YOU FAVOR THE HEMPFIELD SCHOOL BOARD'S PLAN TO BUILD A NEW HIGH SCHOOL?" On April 5, 1990, Hempfield filed with the trial court a request that the Election Board be enjoined from including the referendum on the ballot which was denied by opinion and order dated April 23, 1990.

The issues presented in this case of first impression include whether the trial court erred in refusing to enjoin the Election Board from including a question on the ballot for the May 15, 1990 primary election in the form of a non-binding referendum; and whether Hempfield may seek review of a decision of the Election Board pursuant to the Local Agency Law, 2 Pa.C.S. §§ 551-555, 751-754. ¹

Hempfield initially asserts that the Election Board does not have the statutory authority to place a non-binding referendum on the ballot on its own initiative. It is a priori that a governmental body such as an election board has only those powers expressly granted to it by the legislature. See, e.g., Deer Creek Drainage v. County Board of Elections, 475 Pa. 491, 381 A.2d 103 (1977); Allegheny County Port Authority v. Pennsylvania Public Utility Commission, 427 Pa. 562, 237 A.2d 602 (1968). The Election Board was created by the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3573. Section 301(a) of the Election Code, 25 P.S. § 2641(a), calls for a county board of elections in and for each county of this Commonwealth which shall have jurisdiction over the conduct of primaries and elections in that county in accordance with the provisions of the Election Code. Section 302 of the Election Code, 25 P.S. § 2642, enumerates the powers and duties of those county boards as follows:

The county boards of elections, within their respective counties, shall exercise, in the manner provided by this act, all powers granted to them by this act, and shall perform all the duties imposed upon them by this act, which shall include the following: ....

Further, Section 305(a)1, 25 P.S. § 2645(a)1, refers to the inclusion of "special questions" on the ballot as follows:

The County shall be liable for the expenses ... on any special question which is required by law to be, or which is, at the discretion of the county board, as hereinafter provided, printed on the regular ballot after the list of the candidates, or on the same voting machine as the list of candidates. (Emphasis added.)

Nowhere is it provided in the Election Code that county election boards have the discretion to authorize non-binding referenda questions on the ballot. The phrase "as hereinafter provided" in Section 2645 makes clear that the election boards only have discretion to place questions on the ballot when the Election Code specifically grants them that discretionary power. Analysis of the succeeding provisions of the Election Code fails to demonstrate any instances in which the Election Board is conferred discretion to place a question on the ballot.

In 1973, the legislature approved the Act of June 27, 1973, P.L. 75, 24 P.S. § 7-701.1 (Act 34), which granted new powers to the Pennsylvania Department of Education for review and approval of the building of school district facilities. More specifically, Act 34 set forth specific procedures to involve the public in decisions related to the construction or leasing of new school buildings or making substantial additions to existing school buildings. Act 34 provides in pertinent part:

[T]he board of school directors of any school district ... shall not construct, enter into a contract to construct or enter into a contract to lease a new school building or substantial addition to an existing school building without the consent of the electors obtained by referendum or without holding a public hearing as hereinafter provided.

24 P.S. § 7-701.1. In addition, Act 34 clearly requires that the board of school directors, not the election board, shall obtain the consent of the electorate by referendum or public hearing prior to the construction or leasing of a new school building or making substantial additions to an existing school building.

Several trial courts of this Commonwealth have confronted the issue of non-binding referendum by ballot. In Northwestern Lehigh School District v. Election Board of Lehigh County, 43 Lehigh Law Journal 99 (1988), the court stated:

The issue of the right to have non-binding referenda on the ballot has been subjected to judicial review in this and other counties a sufficient number of times to have developed a certain amount of consistency with uniform results. Thus, in Upper Saucon Township v. The Election Board of Lehigh County, 83-C-279, following Lansdale v. Election Board of Montgomery, 7 D. & C.3d 220 (1978), this court held that in the absence of any specific legislative authority the court is without authority to compel an election board to place a non-binding advisory question on the ballot.

Id. at 101. In In Re: School Building Referendum, Shanksville Stoney Creek School District, 27 Somerset Legal Journal 10 (1971), the Court of Common Pleas of Somerset County held that there cannot be a non-binding referendum by ballot unless there is a specific constitutional or statutory authorization for it. Moreover, in the matter of Allentown School District Referendum, 13 D. & C.3d 741 (1980), where the Lehigh County Election Board attempted to place a non-binding question on the ballot in the 1980 primary election, the trial court in enjoining the election board action held that questions may not be placed before the electorate without limitations, particularly in...