In a move upsetting to members of the citizen’s group Concord First, Delaware County Common Court Pleas Judge James Proud has again ruled against a referendum that would have asked Concord Township residents whether or not Concord should become a township of the first class.
Proud first denied a petition for the referendum last summer and that opinion was later upheld by Commonwealth Court. However, the Pennsylvania Supreme Court heard an appeal from Concord First, overruled the lower court opinions, and remanded the case to Proud on July 20. Proud issued his second denial on Sept. 15.
After learning of Proud’s recent decision, Dan Levin, a member of Concord First, said, “The Pennsylvania Supreme Court confirmed that Concord First was right on the statute in question before, and that Judge Proud, the Commonwealth Court and all of our opponents, including Delaware County and Concord Township officials, were wrong. This time, Judge Proud has ignored the statutory interpretation, findings of fact, and instructions given by the state Supreme Court with an even more ridiculous interpretation of the law.”
Township Supervisors Dominic Pileggi and Kevin O’Donoghue, along with the Delaware County Board of Elections, challenged the petition last year.
Levin said his group would go back to the state Supreme Court within days and ask for an accelerated review.
He called Proud’s latest decision a “mockery of jurisprudence,” adding: “The efforts of Concord’s sitting supervisors, with help from their friends in Media, to block the will of the voters will not stand and will not be forgotten.”
In his latest opinion, Proud said there were three issues to consider. One — the number of signatures collected — could be dismissed because Concord First did get more than the number needed.
The remaining two issues involved a proper ascertainment of population density and the timing of a petition for a question to be placed on a ballot.
For the ascertainment of population, determining whether the township meets the density requirement to be a township of the first class — 300 people per square mile — Concord First used the 2010 U.S. Census figures that were made official in 2011. According to those figures, Concord exceeds that number.
The 2010 census put Concord’s population at 17,231 — a figure the township notes on its own website. With an area of 13.7 square miles, the density is 1,257 people per square mile.
However, Proud wrote that the Supreme Court’s reference to Concord’s population “is not an indication of compliance” with statute 53 P.S. 55205, 206 and 207.
He also said Concord First has failed to meet the requirement for ascertainment.
“Sections 205 and 206 provide the alternative methods for obtaining an ascertainment of the population of a municipality…As of this moment, petitioner has not provided compliance with either Section 205 or 206.
A third section of the ordinance, section 207, “provides at least 90 days must expire after the ascertainment is obtained and prior to a general or municipal election. Since this Court has determined that no ascertainment has been made a matter of record, the 90-day period of time has not yet begun. Accordingly, this requested ballot question cannot be placed upon the Concord Township ballot for Nov. 3, 2015,” Proud opined.
Proud also said that it’s too late for the question to be placed on this November’s ballot because the Department of Elections needs 90 days to prepare the ballots.
But, Proud said, his opinion does not preclude the question on some future ballot.
In its Application for Extraordinary Relief and request for an accelerated review to the state Supreme Court, Concord First will assert that Judge Proud has acted in a manner “contrary to both the letter and the spirit” of the Supreme Court’s mandate when it remanded the case to him on Aug. 19.
It notes that the Supreme Court determined that Concord First obtained the necessary signatures — needing 553 but gathering 994 — and that the township meets the density requirements for a second-to-first-class ballot question.
In addition, the high court’s majority opinion (the vote was 3-2) was that Concord First’s timing was proper, that the method used — the 2010 U.S. Census — and the timing of the petition were sound.
According to that majority opinion in July: “… [W]e hold that pursuant to 53 P.S. § 55207, second-to-first-class township referendum questions shall be submitted to voters at the first general or municipal election occurring at least ninety days after fulfilling both the population density ascertainment and petition signature filing requirements as set forth in the statute. Accordingly, we reverse the order of the Commonwealth Court and remand to the trial court for further proceedings consistent with this opinion.”
Proud’s initial opinion, the one upheld by Commonwealth Court, said that too much time had passed between the 2010 Census and the election in November 2014. It did not include consideration of the petition.
Rich Schwartzman has been reporting on events in the greater Chadds Ford area since September 2001 when he became the founding editor of The Chadds Ford Post. In April 2009 he became managing editor of ChaddsFordLive. He is also an award-winning photographer.
