Apr 17, 2024 By Karen Mansfield 6 min read

Pennsylvania’s Supreme Court last week heard oral arguments in a Donegal Township case aimed at determining whether the terms of two township supervisors were unconstitutionally cut short after the township voted in the November 2020 general election to approve a referendum to reduce the board of supervisors from five to three members.

On April 10, the high court heard arguments on whether a section of the Second Class Township code was incorrectly used to prematurely end the term of township supervisors Richard Martin Jr. and Richard Fidler.

The court’s six justices were asked to consider if Section 402(e) of the Second Class Township Code was unconstitutional as applied to the referendum, which reduced the board from five to three.

Alex Brown, an attorney for Meyer Darragh Bebeneck and Eck PLLC, who represented the township, said the court should reverse the Commonwealth Court’s October 2023 decision that ruled the state’s Second Class Township Code – which provides second class townships with the ability to permit voters to alter the number of township supervisors by way of a referendum vote – is unconstitutional in the case.

“First of all, public officials in legislative offices can be lawfully ousted from their positions before their term concludes if their offices are abolished by referendum,” said Brown, citing case law dating back to the 1860s.

At issue in the case is a five-member board of supervisors that was made up of two supervisors who were elected in the fall of 2017 to terms that expired in January 2022. Two others were elected in the fall of 2019, with terms originally set to expire in January 2024. The fifth township supervisor was elected in the fall of 2019, with a term that was set to expire in January 2026.

In November 2020 Donegal Township residents voted to pass a referendum to reduce the five-member township board of supervisors to three.

On May 18, 2021, five township residents who were running for the township supervisor positions received the most votes in the primary election. Of those five, two new supervisors and one current (at the time) supervisors were elected in November’s general election.

Based on the 2020 referendum, three members of the previous five-member board were to be removed and have their terms cut short effective Jan. 3, 2022.

Martin and Fidler, the supervisors who were ousted because of the referendum, sued Donegal Township, the elected officials serving at that time and the Washington County Board of Elections.

In their lawsuit, those supervisors argued their ouster violates Article IV, Section 7, of the Pennsylvania Constitution and is unenforceable.

Trial court granted, among other things, a preliminary objection – dismissing the complaint – that Martin and Fidler failed to state a valid claim that the Second Class Township Code violates the constitutional provision because a change in the form of government resulted in the expiration of their terms, not removal.

On appeal, Commonwealth Court rejected that the referendum reducing the number of members of the board of supervisors constitutes a change of government, such as the adoption of home rule charters. As a result, it ruled the Second Class Township provision was unconstitutional as it related to Martin and Fidler, and the trial court decision was reversed. That decision led to the Oct. 24, 2023, Pennsylvania Supreme Court’s granting of an appeal that dealt specifically with the issue of whether 402(e) is constitutional regarding the elimination of the supervisors’ seats.

Thomas King, an attorney representing Martin and Fidler, said, “They were supervisors one day and the next day they weren’t. They were making supervisors’ decisions, they were signing checks, they were buying equipment, they were overseeing the operation of the township. One day they were, the next day they weren’t.”

King said while Martin’s term of office expired in January 2024 (he was elected to the board in fall of 2019), Fidler’s term was not set to expire until January 2026.

King said his clients were “asking several things,” including that Fidler be reinstated as supervisor.

“We ask the court to declare that the election that took place is invalid because the section it took place under is unconstitutional, so we would ask that Mr. Fidler be reinstated as supervisor.

During the nearly 50 minute-long hearing, justices asked several questions.

Asked one, “Why didn’t your clients file suit to prevent the referendum? Because obviously they went from a five to a three (member board), the referendum reduced the government from five to three. If your clients knew that going in, why did they stand for the elections as opposed to seeking a stay and then challenging the constitutionality? In other words, why wait until they lose the election and then complain about it?”

King said he speculated the supervisors were “willing to engage in the process and try and see if they won the election.”

King cautioned that the case has implications for second class townships across the commonwealth who could view a referendum reducing the size of a board of supervisors as a means to oust supervisors whom residents do not want to be in office, and could lead to recall elections in Pennsylvania, where citizens can attempt to remove an elected official from office at any time.

“It’s my opinion this will create recall in the commonwealth of Pennsylvania for the first time ever … we don’t have it, I don’t think we want it,” said King, noting he believes it will enable municipalities “to get rid of whoever you want to get rid of.”

“How do you know the voters wanted to remove these people? How do you know the voters didn’t want to just go from five to three?” asked one judge. “You’re conflating the referendum option of going from five to three, which had nothing to do with individual people, to the election that your clients willingly participated in and lost.”

Brown argued that case law holds that “no one has a right to a public office.”

“Anyone who’s elected into a public office can have that office’s terms change,” said Brown. “That’s why for the five supervisors who were present on Donegal Township’s board in 2021 and prior to that, that is why their offices can be cut off in the harsh manner that it was. But the beautiful saving grace is that there was still a political opportunity for all of them to seek elected office on the new three-member board, or anyone else in Donegal Township who was eligible.”

The state Supreme Court has no deadline to issue a decision. The parties are awaiting a ruling.