IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

 

IN RE: OBJECTION TO NOMINATING    )       CIVIL DIVISION

PETITION OF JOSHUA POLLOCK       )

FOR PRIMARY ELECTION FOR          )       NO.  GD01-004915

MAYOR OF THE CITY OF                 )

PITTSBURGH                              )

                                             )

PETITIONER:  BERNIE SCOTT          )

 

MEMORANDUM IN SUPPORT OF NOMINATING PETITION OF JOSHUA POLLOCK

 

        Joshua Pollock submits the following Memorandum in Support of Nominating Petition of Joshua Pollock as follows:

A.  INTRODUCTION.

        Joshua Pollock was born and raised in the City of Pittsburgh, having attained the age of 18 on October 13, 2000.  Josh Pollock is a senior in the Pittsburgh Public School for the Creative and Performing Arts.  Josh Pollock’s candidacy is a sincere and legitimate expression of his desire for change in Pittsburgh City Hall and his love of the City of Pittsburgh.  His candidacy is a positive reaffirmation to City and regional residents that young people are enthusiastic about living in the City of Pittsburgh.  It is these very young people who represent the future and continuity of the City of Pittsburgh.  And, it is these very young people that the Petitioner “Bernie Scott” wishes to inform by the objection to Josh Pollock’s nominating petition that young people have no place in City government.  “Bernie Scott”, or whomever “Bernie Scott” is acting on behalf, wishes to inform young people that change in how the City operates is not going to happen.  It is this “Bernie Scott” who insists that either the incumbent Mayor or the President of City Council should continue the “same old-same old,” and “you kids can go packing.”  The message is loud and clear that new and creative ideas, youthful energy and spirit, youthful enthusiasm to participate within the system is exactly what the “old boy networks” do not want for our wonderful city.  Rather, keeping things the same, not shaking things up and holding onto one’s job or influence are more important to the future.

        Josh Pollock’s candidacy is not only about the year 2001 – it is about the years 2011, 2021, 2031, 2041, 2051 and thereafter.  Where will Mayor Murphy and City Council President O’Connor be in 2051?  Josh Pollock will be 50 years older than his youthful 18 years and he trusts able to look back at his family, children, grandchildren, friends, neighbors and community who love Pittsburgh as much and more than he does.

        “Bernie Scott,” or whomever is either behind the Objection or for whom the Objection was actually filed does not share that same vision and love.  “Bernie Scott” et al does not want to see newly registered or invigorated electors whose “third party” vote is not only a call for change and vision but also an expression of confidence in their City.

B.  FACTS.

        Josh Pollock was born on October 13, 1982 and has lived his entire life in the 14^th Ward of the City of Pittsburgh.  He is a senior in the Pittsburgh Public School for the Creative and Performing Arts.  Josh is a songwriter, lyrist, manager, organizer and guitar player for his rock band Five8Five and plays bass guitar in another contemporary rock band Joybox.  Josh’s creative expressions and ideas are also demonstrated by his active participation in the Western Pennsylvania Committee to Free Mumia Abu-Jamal, his active opposition to the death penalty, his opposition to racial profiling by police, support of gay rights and involvement in numerous other campaigns and causes.

        Josh Pollock’s energies are not limited to school and activism.  He has been a counselor for young children at the Pittsburgh Jewish Community Center’s overnight camp this past summer.  He is active in the local and regional B’Nai Brith Youth Organization and an officer on the regional level.  And, Josh Pollock has actively volunteered to aid, help and assist youth, the homeless, AIDS families, the underprivileged, the disabled and seniors in our City and region.

        It is Josh’s commitment, despite his youthful years that makes him qualified to lead an effective management team to run the City of Pittsburgh.

        “Bernie Scott” is a completely unknown commodity.  Who is “Bernie Scott”?  Does “Bernie Scott” have a spouse or children?  Does “Bernie Scott” really want to suppress new and youthful energy of our City’s youth?  Is this the lesson to teach our children and grandchildren?  How and when has “Bernie Scott” voted?  On whose behalf is “Bernie Scott” filing the Petition?  Why does “Bernie Scott” et al. want to use a superseded state law to halt the fresh new candidacy of an 18 year-old who has made a commitment to the City of Pittsburgh?

C.  LEGAL ARGUMENTS.

1.           The Petitioner’s Objections were filed pursuant to the Pennsylvania Election Code which is clearly the starting point of the analysis of the Petitioner’s Objections.  The Election Code, 25 P.S. §2811, 2812 and 2867 when read together provides that the age requirement for elected office is eighteen (18) except for the offices of state senator or state representative, since these exceptions to the general age requirements are based on Article 2, Section 5 of the Pennsylvania Constitution.  Art 2, §5.  Further , the Election Code is  to be liberally construed and not to be construed to keep people off the ballot:

“Initially, we note that challenges to nomination petitions must overcome the presumption of validity.  Moreover, the Election Code is to be liberally construed so that candidates running for office are not deprived of that right nor are voters deprived of their right to elect the candidate of their choice.  Smith v. Brown, 139 Pa.Commonwealth Ct. 304, 590 A.2d 816 (1991).

 In Re: Williams, 625 A.2d 1279, 1281 (Pa.Cmwlth. 1993).  See Pa.C.S.A. §2961.  The Election Code that set the minimum age to run for the elected office of Mayor at eighteen (18) years of age.

2.           The Petitioner argues that the pre-Home Rule Charter Pennsylvania law requires certain minimum qualifications for any elected office, including that of Mayor.  Under 53 P.S. § 22182, it was required that a mayor “be at least twenty-five years of age, and have been a citizen and inhabitant of the State five years, and an inhabitant of the city for which he may be elected mayor five years next before his election.” 53 P.S. §22182.  This provision had governed the requirements for Mayor in the City of Pittsburgh until the City of Pittsburgh had adopted a Home Rule Charter effective May 29, 1979, pursuant to the Home Rule Charter Enabling and Optional Plans Law, 53 Pa. C.S. § 2901 et seq. (“Home Rule Charter Enabling Act”).  See, County of Delaware v. Township of Middletown, 511 Pa. 66, 511 A.2d 811 (1986). 

Pursuant to the Home Rule Charter Enabling Act, a municipality has extremely broad powers to determine its own governance:

A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter.  All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.

 

53 Pa. C.S. § 2961 (emphasis added). 

        The only limitations imposed by the Pennsylvania Legislature upon municipalities with regard to the enactment of a Home Rule Charter are that such enactment may not give to the municipality power or authority that is in limitation or enlargement of certain enumerated powers already granted to the municipalities by Pennsylvania statute.  These areas are as follows: 

(1)  The filing and collection of municipal tax claims or liens and the sale of real or personal property in satisfaction of them.

(2)  The procedures in the exercise of the powers of eminent domain and the assessment of damages and benefits for property taken, injured or destroyed.

(3)  Boundary changes.

(4)  Regulation of public schools.

(5)  The registration of electors and the conduct of elections. 

(6)  The fixing of subjects of taxation. 

(7)  The fixing of the rates of nonproperty or personal taxes levied upon nonresidents. 

(8)  The assessment of real or personal property and persons for taxation purposes. 

(9)  Defining or providing for the punishment of any felony or misdemeanor. 

(10)       Municipal planning under the act of July 31, 1968, known as the Pennsylvania Municipalities Planning Code. 

 

53 Pa. C. S. § 2962 (a).   Accordingly, with the exception of these ten (10) subject areas, a municipality may limit or enlarge the powers that the Pennsylvania previously statutory law has already afforded to them.[1] 

        In enacting its Home Rule Charter, the City of Pittsburgh determined that the qualifications for Mayor of the City of Pittsburgh should be as follows:  “The Mayor shall have been a resident of the City for at least three years immediately preceding election, unless absent on the public business of the United States or this Commonwealth, and shall reside in the City while serving as Mayor.”  City of Pittsburgh Home Rule Charter § 202 (emphasis added).  Under this provision, there is no specific age requirement.  In drafting its Home Rule Charter, the City of Pittsburgh had the authority to accept, reject, modify, enlarge or restrict the qualifications for Mayor which had applied pursuant to 53 P.S. § 22182.  In enacting its own provisions, the City of Pittsburgh decided to reject the existing qualifications for Mayor in favor of less stringent requirements.  For example, the five-year residency requirement is reduced to three years.  The Home Rule Charter of the City of Pittsburgh supersedes Pennsylvania statutory law on this subject as it was properly enacted under the terms of the Home Rule Charter Enabling Act.  See Generally, City of Pittsburgh v. Commonwealth of Pennsylvania, 522 Pa. 20, 559 A.2d 513 (1989); County of Delaware v. Township of Middletown, 511 Pa. 66, 511 A.2d 811 (1986).  Therefore, the minimum age for which a candidate must have attained in eighteen (18) years of age as set forth in the Election Code.  25 P.S. §§2811, 2812 and 2867.

        3.      Any argument that the failure of the City of Pittsburgh to require an age limitation in its Home Rule Charter requires reversion to the Pennsylvania statute is without merit.  First, as indicated above, municipalities pursuant to their enacted Home Rule Charters may limit or enlarge their powers as they desire as long as they do not infringe upon one of the ten specified areas.  Certainly, the qualifications for the position of Mayor do not fall within one of those ten specific exceptions.  Second, the Home Rule Charter Enabling Act specifically granted to municipalities the power to make such local governance decisions.  Once these decisions were made, they would supersede statutory law on that subject. County of Delaware v. Township of Middletown, 511 Pa. 66, 511 A.2d 811 (1986).  Third, application of the general canon of statutory construction that the mention of specific matter in a general statute implies exclusion of others not mentioned would hold that in including a residency requirement but excluding mention of any other requirements the drafters implicitly stated that there are no other requirements.   This canon of statutory interpretation is known as expressio unius est exclusio alterius. See, Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962).[2]  

Obviously, the drafters of the Home Rule Charter for the City of Pittsburgh had at their disposal Pennsylvania statutory law regarding the qualifications for the position of Mayor.  In drafting their Home Rule Charter, they chose to specifically deal with a residency requirement but to leave out any mention of an age requirement and bond requirement.  According to the canon of statutory construction of expressio unius est exclusio alterius, the assumption must be that all other requirements for the position are specifically excluded.  Any other interpretation would frustrate the intent of the drafters of the Home Rule Charter.  There is no statutory requirement or indication that it was the intent of the Pennsylvania Legislature or the intent of the drafters of the Home Rule Charter of the City of Pittsburgh to have the mayorial qualifications of the Home Rule Charter read  in pari materia with existing Pennsylvania statutory law on that subject.  Rather, any such Home Rule Charter would supersede Pennsylvania statutes on that same topic.  See, County of Delaware v. Township of Middletown, 511 Pa. 66, 511 A.2d 811 (1986).  

The Pennsylvania Legislature enacted the Home Rule Charter Enabling Act to give the municipalities the option, if they so desired, to determine what their own power and authority should be.  As such, the Legislature set only a floor with regard to the aforementioned ten specific subject areas that it deemed important enough to be applied uniformly throughout this Commonwealth.  Otherwise, each municipality was free to determine its own power and authority. 

        Certainly, the drafters of the Home Rule Charter for the City of Pittsburgh had an intent to use those powers to the full extent permitted by law: 

The City of Pittsburgh has all home rule powers and may perform any function and exercise any power not denied by the Constitution, the laws of Pennsylvania, or this Charter whether such powers or functions are presently available to the City or may in the future become available.  The powers of the City shall be construed liberally in favor of the City, and the specific mention of particular powers in this Charter shall not be construed as limiting in any way the general power stated in this article.  All possible powers of the City, except as limited above, are to be considered as if expressly set forth in this article, whether such powers are presently available to the City, or may in the future become available. 

 

City of Pittsburgh Home Rule Charter § 101 (emphasis added).  Obviously, with this provision, the drafters intended to make it clear that they were assuming the full authority granted to them by the Pennsylvania Legislature through the Home Rule Charter Enabling Act to determine the governance of the City of Pittsburgh at the local level.  This language is not consistent with an intent to adopt generic provisions set forth by the Pennsylvania Legislature, but, rather, to enact their own provisions for governance.  Further, the insertion of the mandate that, “the specific mention of powers in this Charter shall not be construed as limiting in any way the general power stated in this article,” demonstrates the drafters’ intention to avoid the threat that any purposeful exclusion or deletion on their part would be construed in an manner contrary to their intention.  As then President Judge Craig wrote in City Council v. City of PIttsburgh, 625 A.2d 138, 145 (Pa.Cmwlth. 1993):

“However, there is no actual conflict among the applicable statutes governing the city’s powers to administer law enforcement, to supervise the construction of public safety related buildings, and council’s power to approve the location of local government buildings through the conditional use process.  The following statutes and ordinances provide the interpretive framework for our conclusion.

 

Pittsburgh enacted its Home Rule Charter in 1974 under the authority of the Home Rule Charter and Optional Plans Law.  Section 302(b)(ii) of the Home Rule Charter Law, 53 P.S. §1-302(b)(ii), generally limits municipalities from exercising powers “contrary to, or in limitation or enlargement of powers granted by acts of the General Assembly which are applicable in every part of the Commonwealth…”

 

In accord with its enabling legislation, Pittsburgh’s Home Rule Charter states that it shall supersede any existing charter, acts, ordinances, and resolutions of the city ‘to the extent that they are inconsistent or in conflict with this charter.  All existing acts…affecting the organization, government and powers of the city, not inconsistent or in conflict with this charter.  All existing acts…affecting the organization, government and powers of the city, not inconsistent or in conflict with this charter shall remain in full force…’  Section 812 of the Charter.

 

The city contends that because ‘[t]he executive, administrative and law enforcement powers of the City shall be vested in the mayor,’ pursuant to §201 of the Charter, this grant supersedes any power given to council to approve the location of public safety buildings through the conditional use process outlined in §993.01 of the Ordinance.  However, these provisions are not inconsistent or in conflict; thus, there is no need to conclude that the mayor’s general law enforcement power must supersede city council’s power over conditional use approvals.”

 

Likewise, the City Home Rule Charter prevails and the qualifications set forth in the Home Rule Section 202.

Fourth, the qualifications for election are covered by not only the City of Pittsburgh Home Rule Charter, but also the Pennsylvania Election Code.  The asserted “reversion” is not to the Second Class City Code, which has been superseded in this regard, but rather to the Pennsylvania Election Code which is a law of statewide applicability that was enacted years after the Second Class City Code.  Pursuant to 25 P.S. §2867, a candidate must be a registered member of a party which means the Election Code sets the minimum age for every office at eighteen (18) years of age (25 P.S. §§2811 and 2812) unless the Election Code or the Constitution specify another age, which they do not.  The Election Code of 1971 supersedes the Second Class City Code of 1934.  And, thus any reversionary logic would be to the Election Code not the Second Class City Code, the latter of which the City of Pittsburgh Home Rule Charter superseded.

4.      Assuming arguendo that the Objecting Petitioner’s incorrect argument holds water, which it does not, a Court may not make a determination of a candidate’s qualification for office in considering the validity of a nominating petition.  Josh Pollock is a legitimate candidate and he is legally qualified to by Mayor of the City of Pittsburgh.  Additionally, as the Pennsylvania Supreme Court held, per Cappy, J. in a case where a seventeen (17) year old was running for the office of justice of the peace:

“Appellant points out that there is no explicit provision in the Pennsylvania Constitution, the Election Code, or elsewhere in the law that prohibits a minor from running for district justice.  Therefore, argues Appellant, there is no defect apparent on the face of the nominating petitions or the accompanying affidavits.  Appellant contends that, where no such defect appears, the Election Code does not permit the courts to strike a nominating petition by making an a priori determination of the candidate’s qualification to hold the office sought.

 

We agree.  Appellees have cited, and we have found, no provision in the Constitution, statutes or court rules that explicitly prohibits a minor from running for or holding the office of district justice.  Thus, to find Appellant ineligible to run for or hold the office of district justice would require a court to look beyond both the nominating papers and laws concerning elections and qualifications for public office – which is precisely what the trial court did in the case sub judice.  Such an exercise is not permitted by the Election Code.”

 

Egan v. Mele, 634 A.2d at 1076 (Pa. 1993)

 

 

D.  CONCLUSION.

        In sum, the Pennsylvania Home Rule Charter Enabling Act specifically allows for a municipality to enact a Home Rule Charter that will supersede Pennsylvania statutory law with regard to local governance.  The City of Pittsburgh has properly implemented such a Home Rule Charter superseding Pennsylvania statutory law on the subject matters contained therein.  The drafters of the Home Rule Charter detailed the qualifications for Mayor for the City of Pittsburgh and included therein a residency requirement only.  The Pennsylvania Election Code therefore controls the minimum age of a candidate: eighteen (18) years of age.  The only Home Rule Charter requirement that must be met for any candidate for the office of Mayor, City of Pittsburgh, is residency.  Josh Pollock is eighteen (18) years of age and has been a resident of the City of Pittsburgh for his entire life.  He is legally qualified to be Mayor of the City of Pittsburgh.  Therefore, it is respectfully

submitted that this Honorable Court dismiss the Objection to Nominating Petition of Josh Pollock for primary election for Mayor of the City of Pittsburgh.

                                             Respectfully submitted,

 

 

 

                                             By:                                                 

                                                     Marvin A. Fein, Esquire

 

 

 

                                             By:                                                 

                                                     Lisa C. Labriola, Esquire

 

 

Attorneys for Joshua Pollock

Candidate for Mayor of the City of Pittsburgh

 

                                                    

CERTIFICATE OF SERVICE

 

        I hereby certify that I caused to be served a true and correct copy of the within MEMORANDUM IN SUPPORT OF NOMINATING PETITION OF JOSHUA POLLOCK on the 21st day of March, 2001, upon the following individuals by hand delivery

Anthony W. Saveikis, Esquire

7011 Steubenville Pike

Oakdale, PA  15071

 

Hon. John H. McLean

Judge, Civil Division

8^th Floor, City-County Building

Pittsburgh, PA  15219

  

                                                           

                                             Jeanmarie Dreistadt