In re Petition for Agenda Initiative

Decision Date14 April 2003
Citation821 A.2d 203
PartiesIn re PETITION FOR AGENDA INITIATIVE to Place a Proposed Ordinance on the Agenda of a Regular Meeting of Council for Consideration and Vote as Follows: "An Ordinance of the County of Allegheny, Commonwealth of Pennsylvania, Directing that a Referendum Question Amending Article III, Section 3 of the Allegheny County Home Rule Charter, Pursuant to the Home Rule Charter and Optional Plans Law and Second Class County Charter Law, Be Placed on the May 20, 2003 Municipal Primary Ballot." Objection of Thomas E. FLAHERTY, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County. Appeal of Allegheny County Division of Elections, Department of Administrative Services. In re Petition For Agenda Initiative to Place a Proposed Ordinance on the Agenda of a Regular Meeting of Council for Consideration and Vote as Follows: "An Ordinance of the County of Allegheny, Commonwealth of Pennsylvania, Directing that a Referendum Question Amending Article III, Section 3 of the Allegheny County Home Rule Charter, Pursuant to the Home Rule Charter and Optional Plans Law and Second Class County Charter Law, Be Placed on the May 20, 2003 Municipal Primary Ballot." Objection of Thomas E. Flaherty, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County. Appeal of Sean W. Moran. In re Petition For Agenda Initiative to Place a Proposed Ordinance on the Agenda of a Regular Meeting of Council for Consideration and Vote as Follows: "An Ordinance of the County of Allegheny, Commonwealth of Pennsylvania, Directing that a Referendum Question Amending Article III, Section 3 of the Allegheny County Home Rule Charter, Pursuant to the Home Rule Charter and Optional Plans Law and Second Class County Charter Law, Be Placed on the May 20, 2003 Municipal Primary Ballot." Objection of Thomas E. FLAHERTY, in His Individual Capacity and as Chairman of the Democratic Party of Allegheny County. Appeal of Thomas E. Flaherty.
CourtPennsylvania Commonwealth Court

Charles P. McCullough and Allan J. Opsitnick, Pittsburgh, for appellant Allegheny County Division of Elections. David J. Armstrong, Pittsburgh, for appellee, T. Flaherty.

Robert J. Ridge, Pittsburgh, for appellee, S. Moran

BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, COHN, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge SMITH-RIBNER.

This case involves consolidated appeals by the Allegheny County Division of Elections, Department of Administrative Services (County), Sean Moran (Moran) and Thomas E. Flaherty (Flaherty) from the February 4, 2003 order of the Court of Common Pleas of Allegheny County, which sustained in part Flaherty's appeal and set aside an Agenda Initiative Petition filed by Moran because it lacked the required 500 signatures from registered voters of Allegheny County. The petition sought to have the Allegheny County Council consider and vote on a proposed ordinance directing that a referendum be placed before the voters in the May 2003 municipal primary election to amend the Allegheny County Home Rule Charter (Charter), 302 Pa.Code §§ 1.1-101—1.14-1407, by requiring the replacement of certain elected Row Officers with officials appointed by the County's Chief Executive and confirmed by the County Council.

I

The Charter was approved by the voters of Allegheny County on May 19, 1998 and became effective on January 1, 2000. See the Act commonly known as the Second Class County Charter Law, Article XXXIC of the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, added by Section 3 of the Act of May 20, 1997, P.L. 149, 16 P.S. §§ 6101-C—6113-C, expired in part January 3, 2000. The County's form of government includes an elected County Council and Chief Executive and an appointed professional Manager; its elected officers include fifteen County Council members, the Chief Executive and such other officers as may be required by law. 302 Pa.Code §§ 1.3-301, 1.3-303. The Charter provides for the agenda initiative mechanism whereby voters may propose ordinances germane to county government for consideration and vote by the County Council by filing an Agenda Initiative Petition limited to one subject and signed by at least 500 registered voters of the County. 302 Pa.Code § 1.12-1201.

Pursuant to the Charter, the County Council enacted the Allegheny County Administrative Code (Administrative Code) by Ordinance No. 8 on June 20, 2000, which established procedures, among others, for the agenda initiative petition and voter referendum process. Under Section 1101.01, an agenda referendum petition is the same as an agenda initiative petition, and under Section 1101.02(C) agenda initiatives and voter referendums proposing amendments to the Charter must follow procedures in the Home Rule Charter and Optional Plans Law (Home Rule Charter Law), 53 Pa.C.S. §§ 2901-2984. Under Section 1101.08, upon receipt of an Agenda Initiative Petition the County Council Clerk shall complete a notice of filing to be distributed to the person filing the petition, the County Council President, the Chief Executive, the Manager, the Solicitor and the Division of Elections. Within ten business days the Council Clerk shall conduct a "facial completeness review" of the petition, and the Solicitor shall conduct a legal review and report the results to the Council Clerk within ten days of receipt of the petition. The Council Clerk thereafter shall issue a statement of certification of the sufficiency or insufficiency of the petition, and the decision is subject to appeal to the common pleas court within seven days of the certification.

On November 19, 2002, Moran, representing a group known as the Citizens for Democratic Reform, filed with the County Council Clerk an Agenda Initiative Petition proposing an ordinance for consideration and vote by the County Council establishing a referendum on changing the selection process for Row Officers and consolidating their functions. Moran requested the County Council to submit the following question to the voters in the May 2003 primary election:

Shall Allegheny County's Home Rule Charter, Article III, Section 3, be amended to (a): replace the elected Clerk of Court, Jury Commissioners, Prothonotary, Recorder of Deeds and Register of Wills with a Clerk of Records appointed by the Chief Executive and confirmed by County Council and (b) replace the elected Coroner, Sheriff and Treasurer with a Medical Examiner, Sheriff and Treasurer respectively, appointed by the Chief Executive and confirmed by County Council.[1]

On December 9, 2002, the Council Clerk certified Moran's petition as complete. On December 16, 2002, Flaherty appealed to the Court of Common Pleas requesting that it set aside the petition on the grounds that it lacked at least 500 signatures from registered voters, that the proposed amendment must be submitted to a government study commission before being presented to the voters and that any change in the form of government could not take place before January 1, 2005, or five years from the "effective date" of the Charter.

The County filed preliminary objections in the nature of a demurrer, contending that a government study commission was not required and that under Section 6111-C(c) of the Second Class County Charter Law, 16 P.S. § 6111-C(c), which was saved from expiration by Section 6113-C, 16 P.S. § 6113-C, amendments to the Charter may be considered five years after the "date of its approval" by the voters. The County did not respond to Flaherty's objection that Moran's petition lacked the required 500 signatures. Moran's preliminary objections raised similar claims and also addressed Flaherty's objection that the Agenda Initiative Petition did not contain 500 signatures from registered voters.

On January 27, 2003, the trial court heard testimony relating to voter registration records and voter signatures from Mark Wolosik, an official of the Division of Elections, whom the court found to be a credible witness. The court, in addition, examined sworn affidavits presented by Moran in an attempt to rehabilitate many of the signatures that Flaherty challenged, particularly those involving printed names, and it also reviewed voter registration cards and compared their information and signatures with the petition as well as in some cases with the affidavits. The court heard oral argument on the timing of the referendum and whether a government study commission was required.

In holding that only 464 of the proffered 606 signatures were valid, the trial court noted that the largest group of invalid signatures included printed names and that it also struck signatures because names, addresses or signatures on the petition differed from the respective voter registration cards. Relying on In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001), and In re Nomination Petition of Wesley, 536 Pa. 609, 640 A.2d 1247 (1994), the court sustained Flaherty's challenges to 142 signatures.2 Forty-nine of those challenges were sustained because the voters printed instead of signed their names on the petition, which clearly read "Do Not Print." The trial court relied on Nomination Petition of Flaherty to rule that Moran's affidavits may constitute substantial proof of the affiants' signatures only if they attested that they intended the printed names to be their actual signatures, which they did not do. It was not enough for the affiants to simply attest that the printed names were theirs and that they signed the petition.

As for the government study commission, the trial court noted that the County adopted its Charter pursuant to the Second Class County Charter Law, which provides that the entire Act is to be considered and construed in pari materia with the Home Rule Charter Law. The court determined that any amendment to the Charter through voter referendum must...

To continue reading

Request your trial
12 cases
  • In re Stevenson
    • United States
    • Pennsylvania Supreme Court
    • March 26, 2012
    ...In re Payton, 945 A.2d 279 (Pa.Cmwlth.Ct.2008); 5 In re Nomination Paper of Rogers, 908 A.2d 942 (Pa.Cmwlth.Ct.2006); In re Petition for Agenda Initiative, 821 A.2d 203 (Pa.Cmwlth.Ct.2003)). After finding that Section 2911(d)'s residency requirement was valid, the Commonwealth Court struck ......
  • In re Nader
    • United States
    • Pennsylvania Commonwealth Court
    • October 13, 2004
    ...evidence is the voter registration card with a full name, the signature with initial is invalid. In re Petition for Agenda Initiative, 821 A.2d 203 (Pa.Cmwlth.2003). Because the Candidate offered no rehabilitation or cure for the defects, the signatures were 865 A.2d 176 Signatures were str......
  • In Re: The Nomination Petition Of Sheila Dow Ford For The Office Of Representative In The U.S. Congress Of District Number 17.Objection Of: Yesenia A. Rosado.
    • United States
    • Pennsylvania Commonwealth Court
    • April 12, 2010
    ...name, the signature must be stricken as an improper deviation from elector's signature on voter registration card.); In re Petition for Agenda Initiative, 821 A.2d 203 (Pa.Cmwlth.2003) (Voter signatures on initiative petition that used nicknames or initials that differed from the voter regi......
  • In re Nomination Petition of Sheila Dow Ford, No. 226 M.D. 2010 (Pa. Commw. Ct. 4/12/2010), 226 M.D. 2010.
    • United States
    • Pennsylvania Commonwealth Court
    • April 12, 2010
    ...must be stricken as an improper deviation from elector's signature on voter registration card.); In re Petition for Agenda Initiative, 821 A.2d 203 (Pa. Cmwlth. 2003) (Voter signatures on initiative petition that used nicknames or initials that differed from the voter registration cards wer......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT