Second- to first-class township referendum questions must be submitted to voters at the first general or municipal election occurring at least 90 days after fulfilling both a population density and a petition signature filing requirement in the First Class Township Code, the Pennsylvania Supreme Court held in In Re: Petition to Submit Ballot Question to Concord Township Voters, __ A.3d __ (No. 126 MAP 2014, filed July 20, 2015). In this case, the Supreme Court was called upon to interpret Section 207 of the First Class Township Code, which states, in pertinent part: “At the first … election occurring, at least ninety days after the ascertainment [that the township has the minimum population density], and after a petition signed by [5% of registered voters] has been filed with the … court, the question … shall be submitted to the voters of the township ….” 53 P.S. §55207.
In July 2014, Colette Brown, a Concord Township, Delaware County resident, petitioned the trial court to place the referendum question “Should Concord Township become a Township of the First Class?” on the November 2014 ballot. In accordance with the above statutory requirements, Brown submitted 994 signatures (8.5% of the Township’s registered voters) and claimed the Township’s population density exceeded the minimum as of the 2010 census. The trial court sustained objections filed by other electors, concluding that Brown’s petition was untimely because the first election occurring after the 2010 census would have been in 2012. Brown appealed and the Commonwealth Court affirmed. See In Re: Petition to Submit Ballot Question to Concord Township Voters, 100 A.3d 765 (Pa. Cmwlth. 2014).
On review, the Supreme Court reversed, holding that the population density and petition signature filing requirements must both be fulfilled before the 90-day time limitation triggers with respect to the first upcoming election. Citing the rules of statutory construction, Justice Stevens, writing for the majority, agreed with Brown that Section 207’s two requirements are conjunctive preconditions. The majority rejected appellees’ public policy arguments as unavailing, noting that modern population growth trends dispel any concern that a township’s ascertainment of the required population density will be tenuous. The majority also found no merit to appellees’ suggestion that voters cannot rationally and reasonably consider second-to first-class referendum questions unless they are “rushed onto the ballot.”
Chief Justice Saylor filed a dissenting opinion joined by Justice Todd. Chief Justice Saylor rejected the majority’s characterization of Section 207 as plain and unambiguous, noting that the section is “comprised of five clauses disrupted by abnormal punctuation.” He agreed with the lower courts that Section 207 should be read as “conveying an intention to require that a referendum proceed within a time period which is reasonably contemporaneous with ascertainment.” Thus, Chief Justice Saylor would limit referendum questions to the first election following formal population density ascertainment.