August 19, 2014

A Delaware County Court judge ruled against a Concord Township citizens’ group petition for a question to be placed on the November ballot. Judge James Proud ruled against the petitioners, but gave no reason for the denial.

The petition — signed by almost twice as many people as needed — proposed that citizens be asked in November whether they want Concord Township to be reclassified as a township of the first class.

“The order was issued without any opinion,” said Concord resident Dan Levin.

Levin, who ran for supervisor last year and is a member of the petitioning group Concord First, said his group was expecting to file an appeal. He added that the state court usually acts quickly on these matters so questions can be on the ballot in time for the election.

When the appeal is heard, Levin said, Proud would issue a written opinion.

In a separate e-mail, Levin added, “Our research indicates that no petition for a first class township ballot question has ever been denied by the courts.”

[Concord, along with most townships in the state, is classified as a township of the second class. The designations of class have nothing to do with the quality of a given municipality. There are some functional and tax differences, but the objective distinction is one of size. Townships of the first class have greater density, a minimum of 300 people per square mile. Concord meets that density requirement.]

According to Levin, there were 20 to 30 people actively getting signatures. They needed 583 — representing 5 percent of the registered voters — but got more than 900 signatures.

Another member of Concord First, Colette Brown, said township supervisors and the Delaware County Bureau of Elections challenged the petition.

“The supervisors came out in force, along with three attorneys to object to the wishes of almost 1,000 residents…The residents’ primary motivation for wanting this change is to put an end to the relentless rezoning and building that has taken place in the township. The supervisors clearly don’t want any interference with their plans and they pulled out all the stops to block the petition. As best we can tell, this was the first time in our Commonwealth’s history that people’s request to get a question on a ballot has been denied,” Brown said in an e-mail.

Brown also said she contacted the Bureau of Elections several times with questions about how to file the petition but, “[I] was told that they couldn’t help me because the referendum fell outside of their jurisdiction.  I still can’t understand then why they were permitted to challenge our petition.”

Frank Catania, solicitor for the Bureau of Elections, said the bureau did not challenge the petition, but did file a petition to intervene, asking the court to determine whether Concord First’s petition was in accord with certain points of the state code.

One of the specific suggestions made in the petition to intervene is that supervisors could be removed from office in an unconstitutional manner if the question passed.

Concord Township solicitor Hugh Donaghue, who said he was representing his law firm and not the township, said he challenged the petition for several reasons.

Donaghue said the name on the petition was Concord First, but that entity is not an actual voter.

“Concord First is not a voter. Concord First is not an entity that can go and pull the lever on election day, so it’s an improper petitioner,” Donaghue said.

He added that the question was not framed properly on the petition because it referred to having the question on the ballot during a municipal election. There are no municipal positions up for election this year and, therefore, the November 2014 election is not a municipal election.

Donaghue also said the petitioning group did not ascertain the population figures in a manner consistent with statute.

He added that it appeared people didn’t understand what they were signing.

“The affidavits, as taken by the circulators, were not appropriate because the circulators indicated that the signers of the petition knew what they were signing. However, upon questioning, the person on the stand, the witness, suggested they weren’t quite sure what a first class township was, what it meant, what changes would be brought about. And when questioned on the reasons given for changing to a first class township that they [the circulators of the petition] told the prospective signers, they said zoning issues, population issues, over-building, the number of supervisors and how they’re elected either by district or by ward. When questioned, asking whether they knew they could do all this in a second class township as opposed to a first class township, the answer was ‘We didn’t know that.’ So there was no basis, no reasons in law or fact that were appropriate for the reason to sign the petition. Therefore, how can the affidavit be taken when neither the circulator nor the signer know what they’re entering into.”

James Brose, the attorney representing the petitioners, said an appeal was filed Aug. 18 and he expects Commonwealth Court to expedite the matter so that, if the ruling is overturned, the question can be placed on the ballot in time for the general election.

Brose added that the law allows for the denial without a reason given, but that the judge would respond once the appeal process moves forward.

Judge Proud’s office did not respond to a telephone inquiry asking for a reason for denying the petition.