In Re Petition for Agenda Initiative to Place on the Agenda of Council for Consideration , 206 A.3d 617 ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Petition for Agenda Initiative :
to Place on the Agenda of a Regular :
Meeting of County Council for :
Consideration and Vote a Proposed :
Ordinance Amending Part 12, :
Government Review, of the :
Administrative Code of Allegheny :
County to Add Article 1205, Voting :
Process Review Commission :
:
Appeal of: OpenPittsburgh.Org, :
Black Political Empowerment Project, :
Tim Stevens, David M. Brown, :
William Lawrence III, and : No. 451 C.D. 2018
Mirsada Begovic : Argued: October 17, 2018
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: March 26, 2019
OpenPittsburgh.Org, Black Political Empowerment Project, Tim
Stevens, David M. Brown, William Lawrence III and Mirsada Begovic (collectively,
OpenPittsburgh.Org) appeal from the Allegheny County (County) Common Pleas
Court’s (trial court) March 15, 2018 order dismissing their appeal.
OpenPittsburgh.Org presents the following issues for this Court’s review: (1) whether
the County Administrative Code’s (Administrative Code) subject matter restriction
on voter referenda and agenda initiative petitions related to the conduct of elections is
unconstitutional; (2) whether the ordinance (Ordinance) proposed by the Agenda
Initiative Petition (Petition) to establish a Voting Process Review Commission to
conduct periodic review of the County’s voting machine systems is legally proper
under the County Home Rule Charter (CHRC) and Pennsylvania’s Home Rule
Charter and Optional Plans Law (HRC&OPL)1 as it does not involve the conduct of
elections as defined by Pennsylvania law; (3) whether the Ordinance can be read in
conjunction with the Pennsylvania Election Code (Election Code)2 and the
Pennsylvania Constitution because it follows the electors’ constitutional right to
select devices used for recording and computing votes;3 and, (4) whether the
Ordinance’s severability clause enables County Council to enact the Ordinance’s
lawful provisions and sever any individual unlawful, invalid, void or unenforceable
provisions therefrom without rejecting the Ordinance in full. After review, we
affirm.
On July 24, 2017, OpenPittsburgh.Org submitted the Petition to the
County Council’s clerk to place the Ordinance on the County Council’s regular
meeting agenda. Although County Council determined that the Ordinance met all of
the Administrative Code’s formal requirements, it nevertheless issued a Statement of
Clarification dated August 7, 2017 certifying the Petition as insufficient. County
Council relied on the County Solicitor’s conclusion that the Ordinance is not legally
proper for County Council’s consideration. On August 17, 2017, OpenPittsburgh.Org
appealed from County Council’s decision to the trial court, asking the trial court to
reverse the County Solicitor’s conclusion and to compel County Council to place the
1
53 Pa.C.S. §§ 2901-3171.
2
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
3
OpenPittsburgh.Org separated this issue into two arguments. See OpenPittsburgh.Org Br.
at 4-5. We have combined them for ease of discussion.
2
Ordinance on its agenda. The trial court dismissed OpenPittsburgh.Org’s appeal as
meritless. OpenPittsburgh.Org appealed to this Court.4
OpenPittsburgh.Org first argues that Section 5-1101.02(C)(3)(e) of the
Administrative Code is unconstitutional because it improperly prohibits voter
referenda and initiatives simply because they involve elections.5 The Pennsylvania
Supreme Court has reiterated:
[O]rdinances enjoy the presumption that they are
constitutionally valid. Moreover, it is indisputable that the
party challenging the constitutionality of an ordinance
carries the heavy burden of proving that it is
unconstitutional. See Upper Salford Twp. v. Collins, . . .
669 A.2d 335, 336 ([Pa.] 1995) (‘Anyone challenging the
constitutionality of such an ordinance bears a heavy burden
of proof.’). Indeed, the ‘heavy burden resting upon the
person asserting unconstitutionality of legislation is one of
the most firmly[-]established principles of our law[.]’
Bilbar Constr. Co. v. Bd. of Adjustment of Easttown Twp., .
. . 141 A.2d 851, 855 ([Pa.] 1958) (collecting cases). To
meet that heavy burden of proof, a challenger must
demonstrate that the legislative enactment at issue
clearly, palpably, and plainly violates the Constitution,
such that there is no doubt or hesitation in the mind of
the court. See id. (explaining that a ‘legislative enactment
can be declared void only when it violates the fundamental
law clearly, palpably, plainly and in such manner as to leave
no doubt or hesitation in the minds of the court’).
4
“This Court’s review is limited to a determination of whether the trial court committed
legal error and whether the findings were supported by the evidence.” Wecht v. Roddey, 815 A.2d
1146, 1149 (Pa. Cmwlth. 2002). “The question of whether the [trial] court[] erred in preventing the
placement of the [Ordinance], on the [] County ballot is a pure question of law. Accordingly, our
scope of review is plenary and our standard of review is de novo.” In re Voter Referendum Petition
Filed August 5, 2008, 981 A.2d 163, 170 (Pa. 2009).
5
The trial court did not address the constitutionality of Section 5-1101.02(C)(3)(e) of the
Administrative Code; however, because it is a pure question of law, see Fross v. Cty. of Allegheny,
20 A.3d 1193 (Pa. 2011), and this Court’s review is de novo, see In re Voter Referendum Petition
Filed August 5, 2008, we will address the issue herein.
3
Rufo v. Bd. of License & Inspection Review, 192 A.3d 1113, 1120 (Pa. 2018) (citation
omitted; emphasis added).
Section 5-1101.02(C)(3) of the Administrative Code provides, in
relevant part: “As the powers of the [sic] are determined by applicable law, the
following areas cannot be the subjects of agenda initiative or of voter referendum: . . .
[r]egistration of electors and conduct of elections[.]” Appellee Br. Appendix A at 2.
Section 5-1101.01 of the Administrative Code defines agenda initiative as:
The presentation to County Council a petition with at least
500 signatures of registered voters in [the] County
proposing an [o]rdinance for Council’s consideration and
vote within the next 60 days. The proposed [o]rdinance
must be germane to County [g]overnment and limited to
one subject clearly expressed in its title. Pursuant to Article
XII, § 1.12-1201, of the [CHRC], an agenda referendum
petition is defined to be the same as an agenda initiative
petition.
Appellee Br. Appendix A at 1. Voter referendum is defined as:
The filing with the applicable election officials on or before
the 13th Tuesday prior to the next primary or general
election a petition containing a proposed ordinance for
referendum signed by registered voters comprising at least
5% of the number of registered voters in the County voting
for the Office of Governor in the most recent gubernatorial
general election. The applicable election official shall place
the proposal on the ballot for decision by referendum at said
election.
Id.
Our Supreme Court explained:
[U]nlike states such as California, governance by referenda
is a relatively rare occurrence in Pennsylvania, where we
hold strong to the ideals of representative democracy and
have no general constitutional provision for voter
initiative or referenda. See English v. Commonwealth,
845 A.2d 999, 1002 (Pa. Cmwlth. 2004) (‘[N]either Article
I, Section 2 nor any other provision of the Pennsylvania
4
Constitution provides an unlimited right to challenge
laws via initiative and referendum.’); Governor’s Center
for Local Government Service, Pennsylvania Department of
Community and Economic Development, Referendum
Handbook (1999). Instead, referenda are limited to areas of
the law that are specifically identified either in our
Constitution or by act of the General Assembly. . . . An
exception to the general rule against referenda is contained
in many Home Rule Charters, including that of Allegheny
County.
In 2000, Allegheny County adopted the Home Rule Charter,
which in relevant part, provided for the rights of initiative
and referendum. The preamble to the Charter provides[:]
‘We the people of Allegheny County, Pennsylvania, believe
that: . . . [a] home rule government that permits initiative
and referendum will respond to the concerns of its citizens.’
Article XII of the Home Rule Charter sets forth three areas
for voter involvement. First, ‘voters of the County shall
have the power to propose ordinances by petition for
consideration by County Council.’ Home Rule Charter,
Article XII, § 1 (entitled ‘Agenda Initiative’). Section 2,
entitled ‘Voter Referendum,’ provides, ‘voters of the
County shall have the power to propose ordinances by
petition for consideration by the voters of the County.’
Home Rule Charter, Article XII, § 2(a). Voter referendum
questions must be germane to County government and
involve a single subject, clearly expressed in the title.
Moreover, the petition seeking a voter referendum must be
signed by voters of the County comprising five percent of
the number of voters who voted in the most recent
gubernatorial election, which currently requires
approximately 23,000 voters. [CHRC,] Article XII, § 2(b).
If approved by the voters, the ordinance proposed in the
referendum question ‘shall become effective in accordance
with its terms’ and ‘shall not be subject to veto and shall not
be amended or repealed by County Council for two years
following its approval.’ [CHRC,] Article XII, § 2(d).
Finally, the third method of voter involvement is amending
the Home Rule Charter through a referendum initiated by
ordinance of County Council or by petition of voters.
[CHRC], Article XII, § 3 (entitled ‘Amendment of the
[CHRC]’).
5
In re Voter Referendum Petition Filed August 5, 2008, 981 A.2d 163, 171 (Pa. 2009)
(citations and footnotes omitted).
OpenPittsburgh.Org appears to argue that Section 5-1101.02(C)(3)(e) of
the Administrative Code violates Article IX, Section 2 of the Pennsylvania
Constitution because “local referenda on the authorization of voting machines is
expressly authorized under the Pennsylvania Constitution and by acts of the General
Assembly.” OpenPittsburgh.Org Br. at 18. However, this Court has expounded:
[Article IX, Section 2 of the Pennsylvania Constitution]
limits the power of state government to infringe on the
natural rights of citizens and recognizes the right to alter,
reform or abolish government. Nonetheless, there is no
legal authority indicating that the provision has ever
been interpreted to create an inherent right to exercise
initiative and referendum as to every legislated measure.
Nor does the language of Article I, Section 2 [of the
Pennsylvania Constitution] contradict the basic rule of law
that the General Assembly has authority to exclude
certain legislative matters from the initiative and
referendum process. Williams v. Rowe, . . . 283 A.2d 881
([Pa. Cmwlth.] 1971) (in a representative form of
government, the General Assembly possesses legislative
discretion to preclude specific matters from the referendum
process).
English v. Commonwealth, 816 A.2d 382, 387 (Pa. Cmwlth. 2003).
Based on the above, this Court rules that OpenPittsburgh.Org has failed
to “demonstrate that the legislative enactment at issue clearly, palpably, and plainly
violates the Constitution, such that there is no doubt or hesitation in the mind of
the court.” Rufo, 192 A.3d at 1120 (emphasis added). Accordingly, because
OpenPittsburgh.Org has not met its “heavy burden of proving that [Section 5-
1101.02(C)(3)(e) of the Administrative Code] is unconstitutional[,]” this Court
cannot rule that Section 5-1101.02(C)(3)(e) of the Administrative Code is
unconstitutional. Id.
6
OpenPittsburgh.Org next argues that the Ordinance is legally proper
under the CHRC and the HRC&OPL, as it does not involve the conduct of elections
as defined by Pennsylvania law.
Initially, Section 2962(a) of the HRC&OPL provides, in relevant part:
With respect to the following subjects, the home rule
charter shall not give any power or authority to the
municipality contrary to or in limitation or enlargement
of powers granted by statutes which are applicable to a class
or classes of municipalities: . . . [t]he registration of electors
and the conduct of elections.
53 Pa.C.S. § 2962(a) (emphasis added). Section 3107-C(h) of the Second Class
County Code6 states in pertinent part:
With respect to the following subjects, the charter shall
not give any power or authority to the county contrary
to or in limitation or enlargement of powers granted by
acts of the General Assembly which are applicable to
counties of the second class: . . . [t]he registration of
electors and the conduct of elections.
16 P.S. § 6107-C(h) (emphasis added). Correspondingly, the CHRC establishes that
the procedures for agenda referendum petitions shall be established in the
Administrative Code, see CHRC, Art. XII §§ 1.12-1201, which prohibits agenda
initiative or voter referendum involving the conduct of elections. See
Administrative Code, § 5-1101.02(C)(3).
OpenPittsburgh.Org relies upon Bell v. Lehigh County Board of
Elections, 729 A.2d 1259 (Pa. Cmwlth. 1999), wherein this Court adopted and
attached the Lehigh County Common Pleas Court’s (Bell trial court) opinion, to
support its position. The Bell trial court discussed the meaning of the conduct of
elections in the context of whether “the entire initiative process adopted by
6
Act of July 28, 1953, P.L. 723, No. 230, as amended, added by Section 3 of Act of May
20, 1997, P.L. 149, No. 12, 16 P.S. § 6107-C(h). Allegheny County is a second class county.
7
[Allentown] in its home rule charter was beyond the scope of [Allentown’s] legal
authority under the Pennsylvania Home Rule Charter Law.” Id. at 1263. The Bell
trial court concluded, which this Court adopted:
Subchapter D [of the HRC] entitled: Conduct and Result of
Elections] insofar as it deals with ‘the conduct of elections’
covers only the procedures for voting and tabulating the
votes under the Election Code. It does not encompass the
process of determining whether a matter is to be placed
on the ballot. This is strong evidence that the General
Assembly did not intend to include the initiative and
referendum processes in the phrase ‘the conduct of
elections’. . . .
Bell, 729 A.2d at 1266 (emphasis added).
In the instant case, Section 1205.1 of the Ordinance states in relevant
part:
The intent of this article is to establish a Voting Process
Review Commission having technical expertise, election
operating experience, and an awareness of the requirements
for voters with special needs, that will conduct regular
periodic reviews of the equipment and software utilized by
the County for its voting system and related administrative
support and of the policy, practices, processes, and
procedures which may involve or affect the conducting of
elections . . . .
Reproduced Record (R.R.) at 215a (emphasis added). Section 1205.2 of the
Ordinance establishes the Voting Process Review Commission and states:
A[] [] County Voting Process Review Commission shall be
created and empowered as provided herein to conduct
evaluation reviews to assess the viability, efficiency, and
effectiveness of the County’s hardware and accompanying
software used for its voting system and administrative
support, and, of policies, practices, processes, and
procedures that pertain to or may affect conducting of
elections.
8
Id. (emphasis added). As the Ordinance itself expressly states that its purpose is to
create a commission to review the equipment and “policy, practices, processes, and
procedures which may involve or affect the conducting of elections” and that the
Voting Process Review Commission will be empowered to review the County’s
“policies, practices, processes, and procedures that pertain to or may affect
conducting of elections[,]” the Bell analysis is not warranted. Id. The Ordinance
leaves no doubt that it involves the conduct of elections. Notwithstanding, as the
Voting Process Review Commission established by the Ordinance is empowered “to
assess the viability, efficiency, and effectiveness of the County’s hardware and
accompanying software used for its voting system[,]” id., the Ordinance clearly
involves “the procedures for voting and tabulating the votes under the Election Code.
. . .” Bell, 729 A.2d at 1266. Consequently, the Ordinance involves “the conduct of
elections,” as that term was established in Bell. Id. Accordingly, the Ordinance is
not authorized by the CHRC or the HRC&OPL.7
7
This Court notes that the Ordinance would also require County Council to initiate a voter
referendum under the CHRC. See Section 1205.16(A) of the Ordinance (“County Council shall by
resolution cause a referendum question to be placed on the ballot in a special election[.]”). Our
Supreme Court has held that County Council has no authority to initiate a voter referendum on any
subject other than an amendment of the CHRC pursuant to Article XII, §3 thereof. See In re Voter
Referendum. Specifically, the Supreme Court explained:
County Council has no authority to enact a referendum under the
[CHRC]. . . . The [CHRC] has no provision for County Council to
propose voter referendums, outside of an amendment of the [CHRC].
The only method for placing a voter referendum on the ballot is
through the collections of currently 23,000 signatures of registered
voters (five percent of the number who voted in the most recent
gubernatorial election.)
Id. at 178. Our Supreme Court concluded: “[T]o allow a majority of the nine council[]members to
place a referendum on the ballot undermines the protections placed in the [CHRC] and potentially
opens the County to a dramatic change in governance without an amendment to the [CHRC].” Id.
As such, the Ordinance would fail on this point as well.
9
OpenPittsburgh.Org next asserts that the Ordinance can be read in
conjunction with the Election Code and the Pennsylvania Constitution because it
follows the electors’ constitutional right to select devices used for recording and
computing votes.
Pennsylvania Constitution Article VII, Section 6 provides:
All laws regulating the holding of elections by the citizens,
or for the registration of electors, shall be uniform
throughout the [s]tate, except that laws regulating and
requiring the registration of electors may be enacted to
apply to cities only, provided that such laws be uniform for
cities of the same class, and except further, that the
General Assembly shall, by general law, permit the use
of voting machines, or other mechanical devices for
registering or recording and computing the vote, at all
elections or primaries, in any county, city, borough,
incorporated town or township of the Commonwealth, at
the option of the electors of such county, city, borough,
incorporated town or township, without being obliged to
require the use of such voting machines or mechanical
devices in any other county, city, borough, incorporated
town or township, under such regulations with reference
thereto as the General Assembly may from time to time
prescribe. The General Assembly may, from time to time,
prescribe the number and duties of election officers in any
political subdivision of the Commonwealth in which voting
machines or other mechanical devices authorized by this
section may be used.
Pa. Const. art. VII, § 6 (emphasis added). Section 302 of the Election Code states, in
relevant part:
The county boards of elections, within their respective
counties, shall exercise, in the manner provided by [the
Election Code], all powers granted to them by [the Election
Code], and shall perform all the duties imposed upon them
by [the Election Code], which shall include the following: .
..
[t]o purchase, preserve, store and maintain primary and
election equipment of all kinds, including voting booths,
10
ballot boxes and voting machines, and to procure ballots
and all other supplies for elections.
25 P.S. § 2642 (emphasis added). Because the Pennsylvania Constitution reserves
the power to provide, by general law, the use and choice of voting machines to the
General Assembly, and the General Assembly has enacted the Election Code which
delegates said power to the County’s Board of Elections (Elections Board), the
Election Code is the final authority on voting machines in this Commonwealth.
Thus, the Elections Board has the exclusive control over election equipment.
Section 5-1205.16 of the Ordinance establishes:
A. If the [Voting Process Review] Commission’s
preliminary review finds the County’s present voting
system fails to meet all of the mandatory minimum criteria
and that updating, upgrading or modifying it would be
insufficient, or, if at a later point in its continuing review
the Commission deems full replacement of the existing
voting system to be necessary or advisable and the preferred
alternative, then upon the [Voting Process Review]
Commission’s request, County Council shall by
resolution cause a referendum question to be placed on
the ballot in a special election; a yes vote to the question
approving, and a no vote rejecting, replacement as
designated by the [Voting Process Review] Commission;
the question to read: ‘Shall the County of Allegheny
replace its current voting system in accordance with the
designation and recommendations of the Voting Process
Review Commission?’
B. A referendum to approve or reject replacement of the
existing voting system shall be scheduled for no later than
would enable implementation of the [Voting Process
Review] Commission’s findings prior to the municipal
election cycle preceding the next presidential election.
C. In the time before the referendum, under the direction of
the [Voting Process Review] Commission, the County
shall conduct an educational program to adequately
notify the public about the Referendum and the
considerations involved so voters can make an informed
decision.
11
D. Should the referendum question receive a majority vote
approving the replacement, then the County shall
immediately proceed as designated in the [Voting
Process Review] Commission’s Final Report.
Alternatively, should the question receive a majority vote
rejecting the designated replacement, the replacement of the
voting system shall not proceed, except that the
Pennsylvania Secretary of State or a court of competent
jurisdiction may with just cause require the replacement. In
any case, the Final Report’s other designated actions and
recommendations shall be deemed still effective.
R.R. at 223a (emphasis added). Section 5-1205.17 of the Ordinance further provides,
in pertinent part:
A. Upon the public release and presentation of the Final
Report of the Voting Process Review Commission, its
findings shall be presented to the [Elections Board] and
to County Council. In addition, [Voting Process Review]
Commission members shall meet with the [Elections] Board
and Council as needed to provide additional information,
answer questions, and assist implementation of the [Voting
Process Review] Commission’s designated voting system
requirements and recommendations.
B. In order to avoid obstructive issues of timing and to
provide ample funding in adequate time for the potential
implementation of a new voting system designated by
the first Voting Process Review Commission and of its
recommendations, such to be available for the 2019
Municipal election cycle:
(1) Upon enactment of this [O]rdinance, [County] Council
and the Administration shall proceed with the transfer of
all remaining bond proceed appropriations from the
[Help America Vote Act (]HAVA[)8] Compliant Voting
Machines project and all remaining appropriations
from those transferred in 2006 to a project entitled
HAVA Compliant Voting Machines Paper Verification
System Upgrade to a new project established for the
purpose of implementing the designated voting system
8
42 U.S.C. §§ 15301-15545.
12
requirements and recommendations of the Voting Process
Review Commission;
(2) With replacement of the entire voting machine inventory
likely to necessitate capital expenditures which would be
too large to fit into the existing capital budget for a given
year merely by amending it, the Administration and
[County] Council shall, upon enactment of this
[O]rdinance, initiate the necessary budgeting process(es)
for appropriation and allocation of an amount sufficient
to cover the anticipated need with such being assigned to
a project fund that is dedicated to and set aside specifically
for implementation of the [Voting Process] Review
Commission’s designated voting system requirements and
additional recommendations;
(3) Upon release of the Commission’s Final Report, such
appropriation(s) and allocation(s) as necessary shall be
amended and adjusted to make available an amount
sufficient to fully fund implementation of the [Voting
Process Review] Commission’s designated voting system
requirements and additional recommendations, with
such being placed into the project fund designated for such
purpose;
(4) To ensure there will be enough lead time for a budget
cycle to take place and for budget adjustments and/or
amendments to be made upon release of the [Voting
Process Review] Commission’s Final Report, the
necessary budget process shall be expedited as possible
to make the funding available as needed for implementation
of the [Voting Process Review] Commission’s designated
system requirements, which if for a new voting system shall
be upon approval of the electorate by referendum, and for
any additional recommendations;
(5) The project fund for implementation of the [Voting
Process Review] Commission’s designated system and
additional recommendations shall be used by the
Administration for the acquisition of voting system
equipment, hardware, and software, for related
contractual arrangements, and for such other ancillary
purposes as designated by the [Voting Process] Review
Commission in compliance with the provisions of this
ordinance and shall be made available to the [Elections
13
Board] to implement, as it may, recommendations from the
Voting Process Review Commission.
R.R. at 223a-224a (emphasis added).
A review of the above Ordinance provisions reveals that the Voting
Process Review Commission would, in effect be acting as the General Assembly
and/or the Elections Board by mandating that the County Council by resolution cause
a referendum question to be placed on the ballot in a special election and by further
mandating the County Council proceed as designated in the Voting Process Review
Commission’s Final Report. The Ordinance not only usurps the General Assembly’s
authority and the Elections Board’s control over Commonwealth voting machines,
but also the funding thereof. Accordingly, the trial court properly concluded that the
Ordinance arrogates the General Assembly’s power and undermines the Elections
Board’s responsibilities.
Lastly, OpenPittsburgh.Org argues the Ordinance’s severability clause
enables County Council to enact all of the Ordinance’s lawful provisions and sever
any individual unlawful, invalid, void or unenforceable provisions therefrom without
rejecting the Ordinance in full.9
Section 3 of the Ordinance provides: “If any provision of this
Ordinance shall be determined to be unlawful, invalid, void or unenforceable, then
that provision shall be considered severable from the remaining provisions of this
Ordinance which shall be in full force and effect.” R.R. at 225a (italic and bold
emphasis in original).
9
This Court notes that the doctrine of severability applies to duly enacted laws, and
OpenPittsburgh.Org has failed to cite to any precedent which requires the General Assembly, or in
this case County Council, to sever parts of any statute, law or ordinance that are merely proposed
and not already enacted and later challenged. However, in an abundance of caution this Court will
address the issue herein.
14
Section 1925 of the Statutory Construction Act of 1972 (SCA)
establishes:
The provisions of every statute shall be severable. If any
provision of any statute or the application thereof to any
person or circumstance is held invalid, the remainder of the
statute, and the application of such provision to other
persons or circumstances, shall not be affected thereby,
unless the court finds that the valid provisions of the statute
are so essentially and inseparably connected with, and so
depend upon, the void provision or application, that it
cannot be presumed the General Assembly would have
enacted the remaining valid provisions without the void
one; or unless the court finds that the remaining valid
provisions, standing alone, are incomplete and are incapable
of being executed in accordance with the legislative intent.
1 Pa.C.S. § 1925.10 “Thus, we turn to consider whether the statute can survive
without those invalid provisions, with principal focus on the legislature’s intent. 1
Pa.C.S. § 1925; Saulsbury v. Bethlehem Steel Co., . . . 196 A.2d 664, 667 ([Pa.] 1964)
(‘In determining the severability of a statute or ordinance, the legislative intent is of
primary significance.’).” Commonwealth v. Hopkins, 117 A.3d 247, 259 (Pa. 2015)
(emphasis added).
After reviewing the Ordinance and the applicable law, this Court
concludes that the Ordinance is an invalid usurpation of the General Assembly’s
power involving the conduct of elections and undermines the Elections Board’s
responsibilities with respect to elections by establishing a Voting Process Review
Commission which not only reviews the election process, but also determines how
and when new voting machines are funded, and specifies a particular time when
County Council shall issue a referendum involving new voting machines.
10
“Although the [SCA] does not apply expressly to . . . ordinances, the principles contained
in [the SCA] are followed in construing a[n] . . . ordinance.” Trojnacki v. Bd. of Supervisors
Solebury Twp., 842 A.2d 503, 509 (Pa. Cmwlth. 2004) (quoting Tobin v. Radnor Twp. Bd. of
Comm’rs, 597 A.2d 1258, 1264 (Pa. Cmwlth. 1991)).
15
Consequently, “[b]ecause of the significant provisions found to violate the
[Administrative Code and the HRC&OPL], which clearly express the intent of the
[Ordinance] that [it involves the conduct of elections], . . . [this Court] find[s] the
remaining unoffending provisions of [the Ordinance] are incapable of being
severed[.]” Id. at 262.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Petition for Agenda Initiative :
to Place on the Agenda of a Regular :
Meeting of County Council for :
Consideration and Vote a Proposed :
Ordinance Amending Part 12, :
Government Review, of the :
Administrative Code of Allegheny :
County to Add Article 1205, Voting :
Process Review Commission :
:
Appeal of: OpenPittsburgh.Org, :
Black Political Empowerment Project, :
Tim Stevens, David M. Brown, :
William Lawrence III, and : No. 451 C.D. 2018
Mirsada Begovic :
ORDER
AND NOW, this 26th day of March, 2019, the Allegheny County
Common Pleas Court’s March 15, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge