W-BCity officials point to 2006 ruling in voting switch

By Matthew Harris (Staff Writer)
Published: July 29, 2010

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Kristen Mullen / The Citizens' Voice
Assistant City Attorney Bill Vinsko Jr. said the city does not expect extended legal action on the move to return to at-large voting.

WILKES-BARRE - In seeking a November referendum to end district-based elections, City Council insists its effort rests on a firm legal foothold, claiming a state-mandated five-year waiting period has elapsed.

Yet several legal precedents determining when the waiting period begins offer opponents an avenue to keep the measure off the ballot, and mark the contours of a challenge to council's move.

"They should think in their own minds they're authorized to do this if it's not going to be challenged," said Brian Jensen, senior vice president of civic policy at the Allegheny Conference on Community Development. "But if they think that, they're being naive."

The council will vote today on a proposed ordinance, which must be submitted by Aug. 3, directing the Luzerne County Board of Elections to put a referendum on the ballot. If voters pass the measure, at-large elections would resume in 2011.

At the heart of the matter is the question of when districts, which voters approved in 2001, actually went into effect. Under state home-rule law, a switch to district-based elections from at-large constitutes a change in city government, triggering the waiting period before a referendum overhauling the move can appear on the ballot.

The council is hanging its hat on a 2006 ruling in Luzerne County Court, which rejected an ill-fated petition by resident Anne Bergold for a similar repeal referendum.

In the case, Judge Thomas F. Burke Jr. found districts went into effect in October 2004, when council approved tweaks to the city charter reflecting the voters' preference for districts, meaning the waiting period ended last year.

"That was the subject on that litigation," Assistant City Attorney Bill Vinsko Jr. said. "The court ruled on that, and nobody challenged it."

But if backers of district elections file a petition challenging the question, they can point to several cases of their own.

In the early 1990s, two Commonwealth Court rulings on cases in AlleghenyCounty held districts became effective when the first council members elected under the change took office.

If applied in Wilkes-Barre, council districts were not in place until the five current members slid into their chairs in January 2008 and aren't up for a vote until 2013.

The fact Burke deviated from the standard in earlier rulings isn't at all surprising, Jensen said. Home-rule law is notorious for its ambiguity and uncharted territory on rulings from case to case, he said.

"We sort of have the benefit of research," said Jensen, an expert in home-rule law. "(Council) can do whatever they want, but if someone presses them in court, they'll probably lose. But to me, that doesn't mean they shouldn't take action."

At state level, an official charged with advising municipalities on home-rule matters said Burke's ruling stands as the final say. Fred Banuelos, deputy director of the Governor's Center for Local Government, said only a decision by a higher court could determine if another of another standard be applied.

"Now, I would think they would up hold what judge deemed as the effective date," Banuelos said. "But there's nothing saying they couldn't say it was later."

But the city isn't steeling itself for a protracted legal fight, Vinsko said.

"The big issue was definitely the five-year look-back period," he said. "It's not a matter of speculation anymore, it's a matter of court order."

For its part, the election board would conduct a legal review, headed by county election board Solicitor Neil T. O'Donnell, to determine if it could be placed on the ballot. O'Donnell declined to comment on whether the conflicting requirements will play a role in the analysis.

Since 2001, council has expressed full-throated opposition to dividing Wilkes-Barre along geographic lines, claiming it would lead to members putting district interests ahead of the city as a whole.

Yet, council Chairman Bill Barrett said the referendum is merely an effort to get clarification on whether they prefer districts or want to return to at-large elections.

"We're operating under the advice of our counsel, who is certain we're on the right path," Barrett said. "Our intent is to get this on the ballot in its purest simplicity."

But filing a petition, which under state law would need to be done by Aug. 10, could prove difficult for district supporters needing to marshal signatures from 10 percent of Wilkes-Barre voters in one week.

Luzerne County Controller Walter L. Griffith Jr., a well-known taxpayer advocate, said concerns would also exist over whether supporters could afford an attorney as part of legal battle.

"I really don't know how many people we can muster up," Griffith said. "It's doable, but can we get enough people to spend the money?"

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