First Class Townships – By-Ward or At-Large Election of Commissioners and Role of Court of Common Pleas; Statutory Construction Interplay Among Article IX, Section 11 of the Pennsylvania Constitution, the Municipal Reapportionment Act, and the First Class Township Code
Article IX, Section 11 of the Pennsylvania Constitution and the Municipal Reapportionment Act that implements it removed from the courts of common pleas the power to reapportion voting wards under the First Class Township Code in townships in which the governing body is not “entirely elected at large,” placing that duty, in the first instance, with the township commissioners. After a decennial census, if the township commissioners do not reapportion within a year, electors may petition the court to do so. Court-supervised reapportionment under Section 401 of the First Class Township Code, which predates Article IX, Section 11 of the Pennsylvania Constitution and the Municipal Reapportionment Act, and is repealed by them to the extent inconsistent, continues to apply if the governing body is “entirely elected at large.”
Swatara, a first class township in Dauphin County divided into nine wards, failed to reapportion its wards within one year of the last census, and township electors brought an action in the court of common pleas to have the court oversee the reapportionment. While that action was pending in 2015, Swatara enacted an ordinance to switch from the by-ward election of nine commissioners to the at-large election of five commissioners, phased in over two municipal elections. After the 2015 election in which the transition began and five by-ward commissioners with expiring terms were replaced by three members elected at-large, Swatara still had four by-ward commissioners. With that hybrid composition in 2016, Swatara enacted an ordinance to revert back to a by-ward system of selecting commissioners. Township electors sought a declaration that under Section 401 of the First Class Township Code court approval was required before a change could be made from an at-large to a by-ward system of electing commissioners, because the 2015 ordinance put in place a governing body structure that was “entirely elected at large,” even though some by-ward commissioners would remain on the board until the 2017 election, thus calling into play the court approval provisions of Section 401 of the First Class Township Code, not Article IX, Section 11 of the Pennsylvania Constitution and the Municipal Reapportionment Act. The trial court agreed and Commonwealth Court affirmed. As the Commonwealth Court explained:
Finding that Section 401 of the First Class Township Code was not inconsistent with either Article IX, Section 11 or the Municipal Reapportionment Act, the trial court found that [the 2016 ordinance] was void ab in[i]tio. It reasoned that both those provisions dealt with reapportionment to ensure that elected officials selected by districts represent a population as equal as possible to other districts so that each voter can have equal voting weight. Because the Township commissioners were “entirely elected at-large” when it enacted Ordinance 2016-7, it was not to carry out those goals but was attempting to change the form of governance by going from a five member at-large board to a nine member by-ward board. The trial court held because that did not deal with reapportionment, Section 403 of the First Class Township Code is not inconsistent with Article IX, Section 11 or the Municipal Reapportionment Act. We agree.
Granting Swatara’s petition for allowance of appeal, the Supreme Court has accepted the questions as Swatara framed them:
(1) Whether the Commonwealth Court committed an error of law in concluding that the First Class Township Code required Swatara Township to seek judicial approval of its by-ward reapportionment effort despite the applicability of the Municipal Reapportionment Act and Article IX, Section 11 of the Pennsylvania Constitution, and the legislative authority afforded to Pennsylvania municipalities to conduct reapportionment[?]
(2) Whether the Commonwealth Court committed an error of law by interpreting the phrase “not entirely elected at large” contained in the Pennsylvania Constitution and Municipal Reapportionment Act in a manner violating the rules of statutory construction[?]