May a statute allow for the removal of elected officials for reasons other than those stated in article VI, section 7 of the Pennsylvania Constitution?
Martin v. Donegal Twp. 293 A.3d 765 (Pa. Cmwlth. 2023), allocatur granted Oct. 24, 2023, appeal docket 24 WAP 2023
Section 601 of the Second Class Township Code provides: “Townships shall be governed and supervised by boards of supervisors[,]” which “shall consist of three members or, if approved by the electors under [S]ection 402(b) [of the Code, 53 P.S. § 65402(b)], five members.” 53 P.S. § 65601. Section 402(e) of the Code also allows for referenda to move back from a five member model to a three member model.
In the November 2020 General Election, Donegal Township, Wahington County electors voted to pass a referendum to reduce the Board’s composition from five to three members. The result was that effective on Monday, January 3, 2022, two sitting supervisors whose terms had not yet expired were replaced with three new supervisors who had been elected in the November 2021 general election. The unseated members sued, challenging Section 402(e) of the Code as unconstitutional as applied. Specifically, the unseated members argued that because Section 402(e) allows for the removal of elected officials based on considerations other than those specified in article VI, section 7 of the Pennsylvania Constitution, it is unconstitutional to the extent permitted referenda result in the removal of sitting supervisors. Article VI, section 7 provides:
All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.
The ousted supervisors relied on the Pennsylvania Supreme Court’s decisions in South Newton Township Electors v. South Newton Township Supervisor Bouch, 575 Pa. 670, 838 A.2d 643 (2003), and In re Petition to Recall Reese, 542 Pa. 114, 665 A.2d 1162 (1995), which hold that Article VI, section 7 is the exclusive method by which they could be removed from their Board supervisor positions before their terms ended.
Ruling on preliminary objections filed by the defendants, the trial court rejected the constitutional challenge and dismissed the complaint, reasoning that Bouch and Reese are distinguishable and do not control the outcome because the ousted members’ terms as Board supervisors were not cut short due to their misbehavior or for other cause but, rather, by operation of law. The trial court declared that, although Bouch and Reese “address the constitutional limitations on the Legislature’s authority to direct when and under what circumstances a municipal officer may be removed from office, “th[o]se cases do not broadly hold that the Legislature lacks the authority to direct when and how municipal offices may be abolished.” Slip op. at 15, quoting Trial Ct. Op. at 16. The trial court went on to rely on the Commonwealth Court’s decisions in Varner v. Swatara Township Board of Commissioners (Pa. Cmwlth. No. 153 C.D. 2017, filed Feb. 21, 2017, amended, Mar. 10, 2017), and Lyons v. Pittsburgh, 137 Pa.Cmwlth. 330, 586 A.2d 469 (1991), for the proposition that a change in the number of members of a local governing body is a change in form of government and, therefore, Bouch and Reese do not apply.
On review, the Commonwealth Court rejected the trial court’s reasoning upholding the constitutionality of Section 402(e), and reversed, holding that Bouch and Reese control – that is, that Article VI, section 7 is in fact the exclusive method by which the supervisors could be removed from their positions before their terms ended, and cannot be distinguished on the basis of Varner and Lyons because the referendum in this case did not change the form of government, but only the number of supervisors. As the Commonwealth Court concluded:
Since this Court’s rulings in Varner and Lyons do not support the trial court’s attempt to distinguish Bouch and Reese, we are constrained to hold that Bouch and Reese control the outcome in this case. Under Bouch and Reese, article VI, section 7 of the Pennsylvania Constitution provides the exclusive method to remove elected officials from office.28 Accordingly, Section 402(e) of the Code’s method of terminating Board supervisor positions was unconstitutional as applied to Martin and Fidler. Because it does not appear with certainty that Appellants’ claim that they were unconstitutionally removed from office will not permit them to recover, the trial court erred by sustaining Appellees’ Preliminary Objections and dismissing the Complaint on that basis.
Slip op. at 18-19.
The Supreme Court granted allocatur to address this issue, phrased as stated by the ousted supervisors:
Whether Section 402(e) of the Second Class Township Code, 53 P.S. § 65402(e), is constitutional as applied when, pursuant to its terms, the number of township supervisors is reduced by referendum from five to three, thereby abolishing two supervisor seats?
For more information, contact Kevin McKeon or Dennis Whitaker.