MAY 8, 2014
The Fayette County, Pennsylvania Prison Referendum Group has met with success for its request to have Court of Common Pleas Judge John F. Wagner recuse himself from hearing arguments to support its contention that a constitutional ballot-access right exists for county voters to have a question placed on the ballot of Fayette County concerning the Board of Commissioners’ action to fund and construct a new county jail.
According to a Tribune-Review report, Fayette’s Judges recuse themselves from prison referendum case, (Liz Zemba) published today, Judge Wagner was not alone in the recusal.
Deemed active Judges, Court of Common Pleas Judge Linda Cordaro previously recused herself, and three others according to the Zemba report, recused themselves this week, leaving Senior Judge Gerald Solomon assigned to hear the PRG’s petition.
Judge Solomon remains slated to hear the case. However, if he would recuse himself, that would leave only two local on-call Senior judges in line to take up the matter.
The next senior judges to be considered are Conrad Capuzzi and Ralph Warman.
Tribune Review, Fayette’s Judges recuse themselves from prison referendum case, Liz Zemba, May 8, 2014
Wagner noted that because he authored a June 17, 2013, letter, in support “of construction of the new prison to replace the more-than-100-year-old existing facility,” he honored their request to recuse himself.
Three of the five other judges — Nancy Vernon, Steve Leskinen and Joseph George Jr. — this week issued orders recusing themselves. The judges referenced Wagner’s recusal and said they were stepping aside “to avoid any conceivable issue of impropriety, as well.”
Judge Linda Cordaro had recused herself on April 9.
The petition was reassigned to one of the county’s three part-time judges, Senior Judge Gerald Solomon, said Karen Kuhn, court administrator.
Should Solomon recuse himself, it will be reassigned to either of the other senior judges, Ralph Warman or Conrad Capuzzi, Kuhn said.
Read more: http://triblive.com/news/fayette/6074947-74/judges-prison-county#ixzz318GCJNKM
Not Enough Said (DAY) would like to propose Judge Capuzzi and Judge Solomon step aside, and enable Judge Ralph Warman to hear the Prison Referendum Group’s arguments, as well as those to be made by county Board and Bureau Solicitor, Sheryl Heid.
Back in August of 2011, Judge Warman ruled upon the Objection Petition of co-bloggers here to Strike and Set Aside the Referendum Petition of Representative Timothy Mahoney.
After reading Judge Warman’s 16-Page Ruling/Decision, readers should be cognizant of its thoroughness and display of support for the areas of decision Judge Warman made as he provides citation for every pronouncement. Additionally, readers should recognize from the Ruling Judge Warman had no option other than to follow the Law of the Land of Pennsylvania.
PRG leaders contend the existence of an inherent right for individuals to petition their government as expressed and declared in the Pennsylvania Constitution, thus, the Prison Referendum Group finds support in the PA Constitution not only for an initiative, i.e. petitioning, but it finds support for a binding referendum based on gathering signatures on petitions to have a question it proposes gain exclusive ballot access for placement on the ballot of Fayette County.
The question is for Fayette County voters to approve (yes/no) to have the county board of commissioners void/rescind all resolutions adopted per the debt-funding and construction of a new county prison (and start anew after the recision to consider other options and to include the public in considerations). The Group contends the PA Constitution trumps the need for a state-legislative local authorizing law.
The best move for Fayette County for now and for the future would be to have the Prison Referendum Group face local Judge Ralph Warman with every argument it has to support its contention it does not need to have the state legislative referendum authorizing law to gain ballot-access and to have “its” question placed on the county ballot for a binding referendum.
Judge Ralph Warman already displayed thoroughness in the his Ruling, also enabling Pro-Se petitioners and seasoned counsel for Rep. Mahoney to make arguments counter to each other on the very point of the necessity to follow the PA Election Code and be subject to its requirements.
Rep. Mahoney’s counsel argued the petitions were subject only to the citation Rep. Mahoney provided in a Letter to the Bureau Director, Larry Blosser, and that the referendum was binding in that the citation alone provided that the measure would be binding if a majority of voters approved the question in the referendum vote. (Title 53 PA C.S.A. Section 2306 Intergovernmental Cooperation)
Judge Warman wrote of the citation (after analysis) …The intergovernmental subchapter contains no provisions that indicate that intergovernmental agreements can supersede the requirements of the School Code Act. Nor has Mahoney provided any authorizing law… (Page 15 of No. 1839 G.D. of 2011 Judge Warman Ruling)
Although county board Solicitor, Sheryl Heid authorized Director Larry Blosser to accept and thus file the Mahoney referendum petitions, and an examination period was not held, indicating the petitions were legitimate (thus, presumed to have basis per Mahoney’s Letter citation) when asked in Court whether the petition was binding, or non-binding Solicitor Heid expressed her legal opinion to be the question was advisory and the referendum non-binding.
Judge Warman’s Ruling provides clear and substantiated reasoning for his determinations.
He clearly indicated the citation Mahoney provided lacked the power to force a binding referendum as it was not referendum authorizing law that enabled an electorate to do what Mahoney (and signers) wanted to be done.
Despite having had the state legislator’s petition formally accepted by the Bureau, and no retreat from a position by Ms. Heid prior to the Hearing on August 22, 2011 (that the authorizing law Rep. Mahoney used enabled the referendum power), Judge Warman demonstrated adherence to the Law in his Ruling No. 1839 G.D. of 2011.
Judge Warman would do no less in considering issues the Prison Referendum Group raises.
If indeed Judge Warman found merit in the Prison Referendum Group’s basic arguments, he would indeed rule for the Prison Referendum Group.
These quarters expect no less of Judge Warman than to follow the Law and abide by the PA Constitution.
As well, it would serve Fayette County best to have each of the three commissioners who sit as the Election Board appear in the county courtroom to give testimony per their rejection votes (Chairman Al Ambrosini and Commissioner Vincent Zapotosky), and abstention/non-vote (Commissioner Angela Zimmerlink).
In addition, it would be beneficial to have the Court of Common Pleas of Fayette County set straight for all time, and as a hoped for precedent, whether or not, the Election Board must first indicate to the public an initiative has been mounted by whomever, and provide the public with names of initiators and the citation initiators intend to provide; provide the public notice of an impending deadline date for filing of so-called petitions for whatever; provide a public notice that petitions called ‘referendum petitions’ for whatever have been submitted; provide a public notice of a so-called deadline date (with citation of authorizing law, or in the absence of authorizing law, from whence a deadline date for filing of so-called petitions is obtained); and so forth and so on.
Also, clarification is needed, and again, best done locally, per the Election Board (faced with filed so-called petitions). Clarification is needed on when that body is to meet once petitions are filed and distinction is needed for the form of the meeting i.e. in a meeting/hearing as opposed to being required to hold a Hearing with persons under oath.
(PA Sunshine Law is applicable no doubt, to both a Hearing and a meeting. However, for the purpose of rendering a decision to accept or to reject referendum petitions, would the board of election be required to hold a Hearing with persons placed under oath, or would the board requirement be to hold a meeting and enable persons to comment on the matter during the public comment period before the vote for rejection, or acceptance.)
Additionally, Fayette County’s Court of Common Pleas should have an opportunity to provide guidance on whether the examination of referendum petitions must take place as well on date certain clarifying the most nebulous “within a reasonable time…” for an examination of petitions called referendum petitions.
There are dozens of other questions surrounding the procedures that the county adopted for inclusion in its County Referendum Guidebook which would be useful to be placed at and answered in the Fayette County Court of Common Pleas.
Having Fayette County’s Judge Warman seated to hear the Prison Referendum Group, and Soliticitor Heid’s legal opinion, would be the most advantageous for Fayette County. Judge Warman should not be neglected, and he should not be dismissed as unable to make a fair and neutral decision.
May 8, 2014 DAY
Additions May 9: A recent find The Daily Item August 29, 2008 Ballot Question Complicated Karen Blackledge shows that back in 2008, the Montour School District was given information regarding an “advisory referendum” and the illegality of an election board placing an advisory/nonbinding referendum on the ballot.
May 14, 2014 rewording edit (DAY)
State Publications including links for Referendum Handbook, Pennsylvania Legislator’s Municipal Deskbook, and Solicitor’s Handbook
Referendum Handbook sections Authorizing Law http://www.newpa.com/webfm_send/1529
Fayette County Outline for Referendum Petition Requirements
Resources Not Enough Said
*(NOTE following links are not in order as to date. Blogger ids for separate posters (vide_post) and (notenoughsaid) (day) are visible at the bottom of the respective pages)
Proposed Fayette jail referendum may be nonstarter Liz Zemba Friday, Feb. 7, 2014
A group opposed to building a jail in Fayette County will circulate petitions this month to try to give voters a say on the project via a ballot referendum, despite indications they may not have the legal footing to do so.
“There are a million legal things that could happen, but we’re just going to move ahead,” said one of the group’s members, Evelyn Hovanec of North Union. “If we get enough signatures, we’re going to present it to the election board.”
Commissioners Al Ambrosini and Vincent Zapotosky in October voted in favor of building a $32 million prison to replace the 125-year-old one adjacent to the county courthouse in Uniontown.
Commissioner Angela Zimmerlink dissented.
The vote called for the prison to be built on county-owned land near the fairgrounds in Dunbar Township, but officials have learned that sewage facilities there are inadequate. They have not voted on a new site. The citizens’ group has been working to try to halt the project by putting it to a vote on the spring primary ballot.
In an email to the election bureau in November, the group said its “intention is to assure that all resolutions pertaining to borrowing, funding, building, relocating the new county prison passed by the two commissioners at the October 2013 or other meetings be repealed, rescinded, declared null and void.”
Sheryl Heid, solicitor for the Election Bureau, told the group in a Jan. 27 letter that “there is no Pennsylvania statute which authorizes a referendum to block the funding of prison construction.”
Heid advised the group to seek a change in state law authorizing referendums, “if you want to continue to pursue this issue.”
Ronald Ruman, spokesman for Pennsylvania’s Department of State, offered a similar opinion when contacted by the Tribune-Review.
“In checking with our attorneys and the Department of Community and Economic Development, there is no provision for a county government to place a referendum on the ballot which would allow a vote by citizens to block funding approved by the commissioners,” Ruman said.
Despite the apparent roadblocks, the group has not given up, Hovanec said.
“This is about people having a voice in government,” Hovanec said. “When this many people disagree and there is no avenue open to them, how can you say we have a government of the people, by the people and for the people?”
Another group member, John Cofchin of North Union, said the group needs at least 1,700 signatures but will attempt to gather at least 2,000. He said even if state laws do not support their efforts, the petition drive will send a message…
Marchers demand a vote on new Fayette jail Tribune-Review Mark Hoffman March 12, 2014
Show said what the group wants is the majority of the three commissioners to explore all possibilities and openly discuss the issue in plain public view.
“We demand the commissioners vote ‘yes’ and allow this referendum question on the ballot,” Show said. “To do otherwise is a slap in the face of those they serve.”
Rally participants then walked to the 911 Public Service Building, which houses the election bureau, where they filed their petitions so a referendum is placed on the ballot for the May 20 primary election.
Tribune-Review Judge to hear Prison Referendum Group’s plea to put new prison on May ballot Liz Zemba Published: Saturday, April 12, 2014
Dates have been set for a Fayette County judge and the county election bureau to hear the concerns of a citizens group that wants a ballot referendum to give voters a say in whether $32 million should be spent to build a new jail.
President Judge John F. Wagner Jr. will hold a hearing at 9:30 a.m. April 15 to hear the Prison Referendum Group’s arguments in favor of a court order directing the bureau to place the binding referendum question on the May 20 primary ballot.
The election board has tentatively set its own hearing for April 22 to approve or reject the group’s request, according to county Commissioner Al Ambrosini, who is a member of the board.
The court hearing is in response to the prison group’s petition seeking a judge’s order directing the election bureau to place their question on the ballot.
The group wants a judge’s order because the election board never held its own hearing on their request, instead notifying them by letter that there is no statutory authority permitting the ballot question, according to their petition.
The group in March held a rally outside the courthouse in support of the referendum. On Friday, members of the United Mine Workers of America held a rally in support of building a new prison.
Wagner has directed the prison referendum group “to provide specific statutory authority to support” their request for the court order…
Group asks State Supreme Court to force Fayette prison referendum
Bob Stiles Friday, April 25, 2014
On Tuesday, the county elections board, consisting of the three county commissioners, rejected a 3,500-signature petition seeking to give voters the say in the construction of the prison via the ballot question.
Citing the advice of the board’s solicitor, Sheryl Heid, Commissioners Al Ambrosini and Vincent Zapotosky rejected the referendum petition, saying there is no state law or constitutional authority to authorize it. Commissioner Angela Zimmerlink did not vote, saying she believes the board did not have the authority to hold the meeting.
Ambrosini and Zapotosky have supported the new prison; Zimmerlink has not…
The referendum group further seeks to void all resolutions involving the new jail and modification to the current jail setup, according to group member Evelyn Hovanec of North Union. The question would require the county to explore other options, with any discussion on site selection, construction or other matters done in public.
On Tuesday, Hovanec called the election panel’s meeting a “farce.”
She said residents have a right to such ballot questions under the state constitution, but laws act as roadblocks.
On Tuesday, Cofchin said the meeting should have been held when the petition was first presented in March.
“This meeting is a month late, and it is designed solely to extricate the majority commissioners to permit another amateur example of poor decision-making,” he said.
Each month a new prison is not built, the county loses money, Ambrosini said Thursday, in part by having to house and transport inmates to other prisons in the state.
Prison designs have improved greatly since the prison was constructed 125 years ago, he added.
The Prison Referendum Group still has a petition pending in county civil court before President Judge John F. Wagner. That petition seeks to force the elections bureau to put the question on the ballot. No new date for a hearing was scheduled as of Thursday.
Wagner proposed waiting until after the elections board ruled on the petition before scheduling his hearing…
Tribune-Review Fayette group won’t abandon referendum Liz Zemba Thursday, May 1, 2014, 12:01 a.m.
Proponents of a ballot referendum on a proposed $32 million prison to be built in Fayette County argued in court filings that the Pennsylvania constitution provides the authority for the referendum.
The Prison Referendum Group has a petition pending in county court in which they are seeking a judge’s order requiring the Election Board to place the question on the May 20 ballot. In lieu of a hearing, the group and the county’s attorney submitted written answers outlining their position on the referendum question.
Sheryl Heid, the solicitor for the Election Board, argued that the referendum should be denied because there is no statute authorizing nonbinding referendums in Pennsylvania.
“In the absence of an authorizing statute, county boards of election have no legal authority to place an advisory question on the ballot,” Heid wrote, “Access to the ballot must be approved by the legislature. Petitioners have failed to cite an authorizing statute, thereby reducing the proposed referendum to a nonbinding question.”
Heid said sections of the Pennsylvania constitution that have been cited by the group “do not legally provide the necessary support for a referendum.”
On Wednesday, two Prison Referendum Group members, North Union residents Evelyn Hovanec and John Cofchin, filed separate answers in support of the referendum. Both argued that the state constitution does give authority for it.
“Our authorizing law resides squarely on those rights given to all citizens of Pennsylvania by the PA state constitution,” wrote Hovanec. “We believe the constitutional law supersedes legislative statute. We also believe there is no specific statute forbidding citizens to have an initiative/referendum question placed on the ballot.”…
The Daily Item August 29, 2008 Ballot Question Complicated Karen Blackledge
DANVILLE — Despite a Danville school director wanting to look further into a referendum on consolidation, the Montour County solicitor says it can’t be done.
Director Dawn Koons-Gill questioned the referendum proposed by SUN Area Career & Technology Center, New Berlin, for expanding and renovating classrooms. The center’s joint operating committee in June voted to delay the $14 million project, saying not enough districts would support it.
Gill also mentioned information she had read about referendums in the Wyomissing district for $37 million and the Unionville-Chaddsford district for $30 million.
The Danville school board voted 5-4 Tuesday night to put a referendum on the November ballot to ask voters if they favored an elementary school consolidation.
“People get confused. If a district is borrowing money for a building project, there is a certain limit and a complicated formula if a district wants to borrow more, then it must go to voters,” said Michael Dennehy, solicitor for the Montour County Board of Elections.
“The rule in Pennsylvania is really clear. You can’t have a question on the ballot unless there is a specific law authorizing it. An advisory referendum is not on that list,” he said.
Three separate cases in 1990, 1991 and 1994 say “you can’t do it,” he said Thursday.
“The Pennsylvania Department of State agrees with this,” he said.
Before the cases in the 1990s, there were situations “where people stuck advisory referendums on but those are old,” he said..
Tribune-Review headline Fayette residents seek to stop school consolidation referendum Liz Zemba August 18, 2011
August 17, 2011 Set Aside Petition
Aug 11, 2010 - Presently, there are twenty-four areas of law in Pennsylvania thatauthorize referenda on the ballot; including fire protection, liquor licenses, … (Google Search Result)
Reports about the outcome of the Set Aside Petition per Rep. Mahoney’s Referendum Petition which sought to have county voters dissolve school district board of directors and administrations and to have voters create a new single school district…
Fayette Judge tosses school consolidation from November ballot By The Tribune-Review Published: Monday, Aug. 29, 2011
A Fayette County judge has thrown out a proposed voter referendum to consolidate the leadership of six Fayette County school districts.
Siding with two residents who argued that state Rep. Tim Mahoney’s petition to put the question before voters had numerous flaws, Judge Ralph Warman issued an order prohibiting its placement on the November ballot.
About 40 people helped Mahoney collect 2,629 names in favor of the referendum question, which would have asked whether voters would “support” dissolving separate school boards and administrations in the county to establish a countywide school board and administration.
Delinda Young of Uniontown and Robert Frasconi of North Union challenged the validity of 42 petitions the South Union Democrat filed earlier this month in support of the referendum.
In a 15-page order handed down Thursday, Warman ordered Mahoney’s referendum petition stricken.
“We conclude that the referendum petition filed by Mahoney seeks to place an advisory question on the ballot,” Warman wrote. “As such, the Election Bureau does not have the authority to place the referendum question on the ballot.”