A three-judge panel held a Monday hearing on the effort to stop Luzerne County’s anti-discrimination ordinance repeal referendum, but it did not rule on the matter.
Instead, the County Court of Common Pleas panel — Judges Tina Polachek Gartley, Lesa S. Gelb, and Mark Bufalino — issued an order requiring additional filings within 60 days, indicating the information presented to date is not “sufficient for meaningful judicial review.”
”This order does not constitute a determination by this court concerning the merits of any objection to the referendum petition or whether the referendum petition is ultimately sufficient or insufficient,” it said. “The court retains jurisdiction for further judicial review following compliance with this court’s foregoing directives.”
Judicial panels are used in the adjudication of election matters.
Citizens submitted 15,405 signatures to place the repeal referendum on the 2027 primary election ballot, and more than 3,790 signatures would have to be thrown out to stop the ballot question.
Six county residents filed an action seeking a court review of the petition, claiming more than 4,000 signatures are deficient. It also raised issues with the petition format and asserted signature collectors intentionally misled voters who signed it.
Attorneys Sarah L. Borland and Joseph Borland of Borland & Borland in Wilkes-Barre appeared in court Monday representing the six residents challenging the petition: Beth Gilbert, Olivia Butkiewicz, Kathlyn-Lopez-Hiraldo, Melissa Rivers, Samantha Troyan, and Yesenia Rodriguez.
Attorney J. Chadwick Schnee, of Schnee Legal Services in Lititz, represented the referendum petition signers and sat with two citizens actively involved in the petition initiative — Walter Griffith and Ben Herring.
Monday’s order requires the petition challengers to submit an amended filing within 30 days detailing each alleged defect of the referendum petition, including every signature they are contesting, the reason, and associated legal or factual arguments.
Petition signers will then have 30 days to file a response to this amended filing, the order said.
Judge Gartley asked during Monday’s hearing why the contested signatures and associated alleged deficiencies were not attached to the court filing.
Attorney Joseph Borland said he believed submission of that information was premature and that he intended to present it for the trial. Borland said Monday afternoon he will comply with the order to supply it.
He told the court the list of alleged deficient signatures was prepared by a consultant.
In ordering an amended filing, Monday’s order said the challengers “failed to plead with the requisite specificity the alleged defect or insufficiencies in the referendum petition, thereby depriving the court of adequate notice of the grounds upon which the relief is sought and failing to provide all interested parties with sufficient notice of the specific deficiencies alleged.”
Judge Gartley indicated she and her judicial colleagues have presided over past election-related evidentiary hearings that are typically lengthy and not an “easy process,” citing an example of complex analysis over voter residency.
Due process must be afforded to petition signers facing removal of their signature from a petition, Judge Gartley said.
She also questioned the court’s ability to review the requested removal of names from the petition on the argument that voters believe they were misinformed. Gartley said most voters have encountered elections in which they regret a selection, but they cannot change their mind and take back a vote after the fact.
Bufalino asked why the county Election Board did not issue a decision on whether the petition was sufficient or insufficient.
County Assistant Solicitor Gene Molino said the volunteer board chose not to issue a determination on the challenge based on charter wording that references situations of the board failing to or not exercising its “opportunity” to make such a decision. In those instances, he said, challenges can advance to county court.
The election board publicly discussed its reasoning, and Molino also detailed his legal position on claims made in the petition challenge at that meeting.
Monday’s order directed the election board to transmit documents related to the matter to the court, including a transcript or recording of the board meeting in which the petition challenge was discussed.
The order deadlines address a timing concern raised by Molino.
Molino cautioned that any court proceeding requiring extensive information from the county’s Statewide Uniform Registry of Electors, or SURE, voter registration database would have to be held at the county election bureau in the downtown Wilkes-Barre Penn Place Building because that’s where the system’s terminal is located.
Molino also noted it would be a burden for the election bureau and board to be extensively involved in petition challenge issues at this time due to their duties with the Nov. 3 general election. However, he emphasized they would abide by any court requirements.
Before contested signatures can be evaluated, an underlying question that must be resolved is whether state election code requirements for candidate nomination petitions also apply to the referendum petition.
This is the first time citizens exercised the county home rule charter option to seek voter repeal of an ordinance adopted by County Council.
Borland and Borland argue the state code must provide direction on referendum petition requirements when the charter is silent. Taking the opposite stance, Schnee asserts state law has no bearing because the power to seek a referendum comes solely from the county charter, which requires only that petition signers must be county residents.
Schnee told the judges Monday that the court must first determine whether the state code applies, so it would not be putting the “cart before the horse” by adjudicating signatures.
If the court agrees with Schnee’s argument that the only requirement is for signers to be registered county voters, the other claims made in the challenge would be “irrelevant,” Schnee said.
Any county court ruling on this matter can be appealed to the Commonwealth Court.
Approved by a council majority, the anti-discrimination ordinance would require local adjudication of complaints that extend beyond county government and involve employment, housing, healthcare, education, and establishments that sell goods or services to the general public.
Supporters said the ordinance will protect classes not already covered in state and federal laws and speed up processing of complaints due to a state backlog. Critics argued the county should not get involved in such matters and raised concerns about potential liability, litigation, and added expenses.