Cheltenham Motion for Emergency Peremptory Judgment

by Community Environmental Legal Defense Fund, CELDF
August 25th, 2009

pdf file version

pdf version of amended complaint

pdf version County's response to motion for peremptory judgment

NOW COMES We the People of Cheltenham, an unincorporated Pennsylvania association, through its undersigned counsel, and files the following emergency motion for peremptory judgment in the above captioned case:


1.    On June 28, 2009, We the People of Cheltenham began circulation of a petition to amend the Cheltenham Township Home Rule Charter to insert a “Bill of Rights” into that Home Rule Charter.

2.    After collecting 3,023 signatures on those petitions, the group submitted the petitions to the Montgomery County Board of Elections on August 3, 2009.
3.    Section C1508 of the Cheltenham Township Home Rule Charter declares that the Charter may be amended in accordance with the process established by the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. §2901 et seq.

4.    Section 2943 of Pennsylvania’s Home Rule Charter and Optional Plans Law establishes the process for petitioning by electors for the amendment of a Home Rule Charter, and requires the filing of a petition containing the signatures of electors comprising 10% of the number of electors voting for the office of Governor in the last gubernatorial election in the municipality. 53 Pa.C.S. §2943.

5.    26,126 Cheltenham Township electors voted for the office of Governor in the last gubernatorial election, held on November 7, 2006, and 10% of that number yields a requirement of gathering 2,613 signatures for placement of the proposed amendment onto the ballot.

6.    No challenges were filed to the petitions or the petition signatures under provisions of the Pennsylvania Elections Code during the challenge period, which extended from August 4, 2009 to August 11, 2009.

7.    On August 19, 2009, the Montgomery County Board of Elections met to frame the question for the ballot, and to draft a plain English summary of the proposed amendment under the Pennsylvania Elections Code, and under the Home Rule Charter and Optional Plans Law.
8.    At that meeting, the Montgomery County Board of Elections voted to stop the proposed charter amendment from appearing on the ballot. Without judicial intervention, the proposed amendment will not appear on the general election ballot for the approval or disapproval of Cheltenham Township electors.

9.    After voting to block the proposed charter amendment from appearing on the ballot, the Montgomery County Board of Elections did not approve a ballot question or a plain English summary of the proposed amendment.

10.    The Montgomery County Board of Elections and the Plaintiff organization stipulate that the petitions contained the necessary signatures of valid electors, and that the petitions met all of the statutory requirements for formatting and content under the Home Rule Charter and Optional Plans Law, and under the Pennsylvania Elections Code.

11.    The Montgomery County Board of Elections asserts that the Board possesses the legal authority to reject a proposed charter amendment if the Board of Elections deems, in its judgment, that the proposed charter amendment is illegal.

12.    We the People of Cheltenham assert that the Board’s authority in placing the proposed charter amendment onto the ballot is ministerial only, and that the Board of Elections lacks the legal authority to both determine the legality of a proposed amendment, and to refuse to place a properly qualified petitioned amendment onto the ballot.

13.    Upon submission of a petition proposing a charter amendment for an existing Home Rule Charter, the Home Rule Charter and Optional Plans Law requires that the election officials “review the initiative petition as to the number and qualifications of signers.” 53 P.S. §2943(b).

14.    If the number and qualifications of signers satisfies the number required by the Home Rule Charter and Optional Plans Law, the election officials are required to “send copies of the initiative process without signature thereon to the governing body and the Department of Community and Economic Development.” Id.

15.    After complying with that section, the elections officials “shall cause the question to be submitted to the electors at the next primary, general or municipal election occurring not less than the 13th Tuesday following the filing of the initiative petition. . . The county board of elections shall frame the question to be placed upon the ballot.”  53 P.S. §2944.

16.    The duties outlined by the Home Rule Charter and Optional Plans Law for the County Boards of Election are ministerial and non-discretionary.

17.    Even though the petition form was deemed sufficient, and contained the required number of valid signatures, the Montgomery County Board of Elections refuses to place the proposed charter amendment onto the ballot.

18.    The Montgomery County Board of Elections lacks the statutory authority to refuse to place the proposed amendment onto the ballot.

19.    Under the Home Rule Charter and Optional Plans Law, the Montgomery County Board of Elections carries out ministerial duties, in this case the validation of sufficient signatures, and is then required to place the proposed amendment onto the next election ballot.

20.    The Montgomery County Board of Elections rests their refusal to place the charter amendment onto the ballot on their assertion that the proposed amendment is “illegal,” and therefore, that the Board of Elections has the authority to stop the proposed amendment from being placed onto the ballot. No basis in law exists for that claimed authority.

21.    The law governing the ministerial duty of the Montgomery County Board of Elections is clear, the Plaintiff is entitled to relief, and the Plaintiff’s right to relief is clear.

22.    Rule 1098 of the Pennsylvania Rules of Civil Procedure declares that “at any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear.” Pa.R.C.P. 1098.

23.    Therefore, The Plaintiff seeks mandamus relief, directing the Montgomery County Board of Elections to place the proposed charter amendment onto the general election ballot, and directing the Montgomery County Board of Elections to draft a ballot title that adequately reflects the content of the charter amendment, and a plain English statement explaining the proposed charter amendment;

WHEREFORE, Plaintiff We the People of Cheltenham respectfully requests that this Court grant mandamus relief to the Plaintiff, and order the Montgomery County Board of Elections to place the Plaintiff’s proposed charter amendment onto the general election ballot.

Dated this August 25, 2009.

                Respectfully submitted,

                __________________________________
                Thomas Alan Linzey, Esq.
                Pa. I.D. No. 76069
                Community Environmental Legal Defense Fund
                675 Mower Road
                Chambersburg, Pennsylvania 17201
                (717) 709-0457 (v)
                (717) 709-0263 (f)
                tal@pa.net