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April 19, 1969

Kathleen HACKETT et al.

The opinion of the court was delivered by: MASTERSON

 On April 10, 1969 the plaintiffs, all residents and electors of the City of Philadelphia, instituted this action against the President of City Council of the City of Philadelphia, the Honorable Paul D'Ortona. The plaintiffs allege that the defendant's failure to issue writs of special election for purposes of filling vacant City Council seats existing in the First and Seventh Councilmanic Districts of Philadelphia at the primary election to be held on May 20, 1969, deprives the plaintiffs, and the class of Philadelphia citizens and electors whom they claim to represent, of their constitutionally-protected rights to vote. The challenged actions of the defendant allegedly constitute violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, violations of the Ninth and Tenth Amendments of the Constitution, and violations of specified federal, state and municipal laws. The plaintiffs ask this Court to enter a preliminary and permanent injunction requiring the defendants to issue writs for a special election on May 20, 1969 (the scheduled date for the next primary election) for purposes of filling these vacancies, to enter a declaratory judgment that defendant's refusal to issue such writs has deprived the plaintiffs of their constitutional rights, to grant the plaintiffs the costs of prosecuting this action and to grant any further necessary and/or proper relief.

 The defendant has filed a motion to dismiss on the grounds, inter alia, that plaintiffs' complaint fails to state a claim upon which relief may be granted, and that the Court lacks equitable jurisdiction over the matters about which plaintiffs complain, that the complaint fails to raise a substantial federal question or a federal constitutional question, that the plaintiffs are guilty of laches, that the setting of the date for the special election is within the defendant's discretion and not subject to judicial control, and that the addition of a special election to the already complex primary ballot would increase confusion among the voters.

 Although the plaintiffs filed their complaint in the District Court Clerk's Office on April 10, 1969, they requested the scheduling of an evidentiary hearing for Monday, April 14, 1969. A hearing was conducted at that time in order to permit both parties the opportunity to present evidence supportive of their respective positions. Testimony adduced at the hearing indicated that it would be necessary for the Court to personally visit the Warehouse at which the voting machines to be used at the May 20th election are stored and to inspect these machines in order to arrive at a realistic appraisal and meaningful disposition of significant factual defenses advanced by the defendant. Such a visit was conducted on Tuesday, April 15, 1969, by the Court, accompanied by counsel for both parties, by employees of the City who worked at the Warehouse, and by a witness, Robert S. Cooper, who is Assistant Executive Secretary of the Committee of Seventy, a non-partisan civic agency, one of the primary functions of which is to observe and help regulate the conduct of Philadelphia elections. On Thursday, April 17, 1969, further evidence was presented by the defendant, and at the same time the Court entertained legal argument by both parties.

 To the extent that time has permitted, the Court has reviewed the law cited and relied upon by both parties, and considered the complex factual issues involved. It is the Court's conclusion that the plaintiffs' petition is ground upon serious constitutional considerations and that, accordingly, the defendant's motion to dismiss, which essentially challenges the constitutional nature of the plaintiffs' complaints, must be denied. It is the Court's conclusion also, however, that the overwhelming weight of relevant factual evidence indicates that to grant the plaintiffs' prayer for relief insofar as the plaintiffs request a writ of mandamus ordering the President of City Council to conduct a special election on May 20, 1969, would be to order the impossible. Evidence presented by the defendant, which is discussed more thoroughly below, demonstrates that it simply would not be feasible at this time to implement any of the three electoral procedures suggested by the plaintiffs. The evidence suggests, at the least, that alteration of the printing and mechanical plans already made by Philadelphia's Board of Elections would seriously threaten the City's chances of conducting any election at all on May 20, 1969, and that, if any such special election were ordered to be held at the primary election on May 20th, the special election would be so chaotic and confusing as to necessarily negative the opportunity of the electors to exercise an enlightened and dispassionate franchise. Hence, the plaintiffs' prayer for a preliminary injunction must be denied at this time, although, the Court will retain jurisdiction of this case.


 The City of Philadelphia is governed by a seventeen member legislative board known as The City Council, which is composed of seven members, each of whom is denominated councilman-atlarge (and one of whom, the defendant in this case, is chosen as President of the Council) and each of whose constituencies is the entire City of Philadelphia, and ten other members, councilmen, each of whom represents one of the ten councilmanic districts of the City. All councilmen are elected once every four years at municipal elections conducted in oddlynumbered years, by the votes of electors throughout the City, in the case of the councilmen-at-large, and by a vote of the electors residing in any one district, in the case of the other council members. At each election, each qualified and registered elector of the City of Philadelphia has the right to vote for one district councilman and for five councilmen-at-large.

 Vacancies in the office of councilman must be filled in the following fashion:

"Should a vacancy occur in the office of any councilman, the President of the Council shall issue a writ of election to the board of elections having jurisdiction over elections in the City for a special election to fill the vacancy for the balance of the unexpired term, which election shall be held on a date specified in the writ, but not less than thirty days after its issuance. The President of Council may fix as the date of the special election, the date of the next primary, municipal or general election."

 The last sentence of this provision, an understanding of which is critical to a disposition of this case, recently has been interpreted by the Supreme Court of Pennsylvania to mean that the President of City Council has the discretion to fix the date of a special election at any one of the three election dates noted in the provision, and the duty not to fix the special election for any other time. Commonwealth ex rel. Specter v. D'Ortona, 423 Pa. 22, 25, 223 A.2d 100 (1966). It is also true that the President of City Council must exercise the discretion vested in him by Section 2-101 of the Home Rule Charter in accordance with the mandatory provision of the Election Code of the Commonwealth of Pennsylvania:

"In all cases where under any law now or hereafter enacted, a special election is required to fill any vacancy in the office of member of the council or legislative body of any city, borough, town or township, such election shall be held on the day fixed in the writ for the special election or on such day as may be otherwise provided by such law, which day shall be within sixty (60) days after the issuance of the writ or after the happening of the vacancy, as the case may be * * *" Title 25 P.S. § 2778.1.

 And, of course, any special election ordered by the President of City Council must comply with the procedures established in other provisions of Pennsylvania's Election Code, provisions § 1110(h) (establishing the proper arrangement of parties on the election ballot), § 3146 (establishing the procedure for the casting of absentee ballots), and § 629 (relating to the filing of nomination certificates and nomination papers), being particularly relevant here.

 The Honorable Joseph J. Hersch, then the duly elected Councilman for the 7th Councilmanic District of the City of Philadelphia, died on October 16, 1968. The Honorable Benjamin Curcuruto, then the duly elected Councilman for the 1st Councilmanic District of the City of Philadelphia, died on December 25, 1968. On February 19, 1969, the President of City Council, pursuant to the discretion vested in him by § 2-101 of the Home Rule Charter, issued a writ of election to fill these two vacancies. Shortly thereafter, it was determined that the writ was premature in that it had been issued more than sixty days before the date set for the election, in violation of the provisions of Pennsylvania's Election Code. Subsequently, the President of City Council continued to give serious consideration to the possibility and propriety of holding the special election for the councilmanic vacancies on May 20, 1969.

 Ultimately, on March 28, 1969, after consultation with the leaders of the two major political parties in Philadelphia, i.e., the Republican Party and the Democratic Party, and after consultation with leading civic leaders of the community e.g., the President of the Philadelphia Bar Association, the President of City Council concluded that it would be both impracticable and unwise to issue the writs of election for May 20, 1969. Among other considerations which convinced the President of City Council that it would be improper to hold the election were the two following significant factors:

 (1) An extraordinarily large number of candidates had filed for election to other offices involved in the May 20 election, including ninety-five candidates for the position of Common Pleas Judge. Conducting a special election, which was not a primary but rather a general election, would add significantly to voter confusion; and,

 (2) The likelihood was that a significantly smaller number of people would be voting at the primary election than at the next municipal election, scheduled in November, 1969, and hence the winner of a councilmanic contest most probably would be un-representative of the vast majority of residents of ...

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