Weiner v. Secretary of the Commonwealth

558 A.2d 185, 126 Pa. Commw. 11, 1989 Pa. Commw. LEXIS 314
CourtCommonwealth Court of Pennsylvania
DecidedMay 11, 1989
DocketNo. 128 Mis. Dkt. 1989
StatusPublished

This text of 558 A.2d 185 (Weiner v. Secretary of the Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiner v. Secretary of the Commonwealth, 558 A.2d 185, 126 Pa. Commw. 11, 1989 Pa. Commw. LEXIS 314 (Pa. Ct. App. 1989).

Opinion

OPINION

CRUMLISH, Jr., President Judge.

The Chancellor, having entered an Order denying the petitioners’ application for special relief in the nature of a special injunction, files this Opinion in support thereof.

On May 16, 1989, the electors of this Commonwealth will be asked to approve or reject a constitutional amendment which would authorize the legislature to require or permit local government units to restructure revenue raising measures. The proposed amendment would' provide an excep[13]*13tion to the "tax uniformity clause,” Article VIII of the Pennsylvania Constitution, as stated:

§ 2. Exemptions and special provisions.
(b) The General Assembly may, by law:
(VI) MAKE SPECIAL TAX PROVISIONS AUTHORIZING OR REQUIRING CLASSES OF LOCAL TAXING AUTHORITIES TO REDUCE TAX RATES ON RESIDENTIAL REAL PROPERTY TO THE EXTENT OF ADDITIONAL REVENUES OBTAINED FROM PERSONAL INCOME TAXES; ALL OTHER CHANGES IN REAL PROPERTY TAX RATES SHALL BE UNIFORM AS PROVIDED IN SECTION 1.

Joint Resolution No. 1, H.B. No. 14.

The official ballot, as certified by the Secretary of the Commonwealth, poses the following question:

SHALL ARTICLE VIII, SECTION 2(B) OF THE PENNSYLVANIA CONSTITUTION BE AMENDED TO ALLOW FOR LEGISLATION WHICH WOULD REQUIRE OR PERMIT LOCAL GOVERNMENT UNITS TO REDUCE RESIDENTIAL REAL ESTATE TAX RATES TO THE EXTENT OF ADDITIONAL REVENUES OBTAINED FROM PERSONAL INCOME TAXES, WHILE KEEPING ALL OTHER CHANGES IN REAL ESTATE TAX RATES UNIFORM?

Max Weiner, a registered voter of the Commonwealth, and the Consumer Party of Pennsylvania (petitioners) filed a petition for review and an application for special relief in this Court’s equity jurisdiction, asking this Court to strike from the May 16, 1989 primary ballot this proposed constitutional amendment question asking voters whether to amend the Pennsylvania Constitution to permit what is colloquially designated local tax reform. In addition, petitioners request that this Chancellor order the Secretary of the Commonwealth to rephrase the official ballot question so that it is neither ambiguous nor deliberately misleading. [14]*14Before the Chancellor is the application for special relief seeking a special injunction.

In his answer, the Secretary of the Commonwealth denies that the ballot question is ambiguous or in any way misleading and prays that this Chancellor deny the relief sought and dismiss the application.

A hearing was held on May 10, 1989, at which both parties presented testimony. Petitioners offered the testimony of Max Weiner, who testified generally that he commenced this action after having read the ballot question and compared it with the actual amendment to the Constitution. According to Weiner, the ballot question misled voters because, as phrased, it suggested that all local government units would receive equal treatment under ancillary enactment legislation known as “The Local Tax Reform Act” or Act 145,1 when, in fact, the legislation actually differentiates the methods by which the various local governments structure their taxation needs under legislative enactment.

The Secretary called William Boehm, Commissioner, Bureau of Commissions, Elections and Legislation, who testified in detail, delineating the practical problems involved should the Chancellor grant the petitioners’ relief at this time in the election process. Commissioner Boehm testified that he did not believe the ballot could or should be changed or the question stricken from the ballot prior to the primary election day.

RELIEF REQUESTED

By requesting special relief, petitioners in effect seek an affirmative or mandatory preliminary injunction. Thus, they carry an onerous burden.

[F]irst, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly [15]*15restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded.

New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978) (citations omitted). The failure to prove but one of these prerequisites must result in the denial of injunctive relief. Leonard v. Thornburgh, 75 Pa.Commonwealth Ct. 553, 463 A.2d 77 (1983).

Initially, we note that we do not decide the propriety of Act 145 or the constitutional amendment permitting Act 145’s implementation. The narrow issue petitioners present is whether the omission from the ballot question of the phrase “classes of” modifying “local government units” is demonstratively deceptive or manifestly misleading to voters when compared with the actual constitutional amendment. Petitioners argue that by failing to include that particular term on the ballot question, the electorate will be misled into believing that all local government units receive equal treatment under Act 145, when in fact, divergent “classes of” government units may be permitted or required to reduce real estate taxes depending upon the government unit’s classification. Thus, petitioners contend, voters in government units not required to reduce real estate taxes might mistakenly believe that their real estate taxes will be decreased and would vote “yes” to the question. It is to this contention that the standard for a preliminary injunction will be applied.

IRREPARABLE HARM

Petitioners argue first that voters will be irreparably harmed if the official question remains as certified on the ballot, suggesting that the electorate is voting without having a clear understanding of the effect of their votes, in [16]*16that they would believe that certain tax benefits would inure in all instances.

In contrast, the Secretary argues that Commissioner Boehm’s testimony demonstrated an insurmountable obstacle in deleting the question from the ballot at this late stage on the “eve” of the election. This Chancellor finds Commissioner Boehm’s testimony to be not compelling. Regardless of the Commissioner’s concern for the difficulties of the task at hand in deleting ballot questions, where executive branch and local government election officials are at issue, the only equities which overwhelmingly warrant this Chancellor’s concern are the obstacles to the electors’ free and deliberative choice. He must be convinced that the voters will have before them a fair and reasonable restatement of the proposed amendment.

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Related

STANDER v. Kelley
250 A.2d 474 (Supreme Court of Pennsylvania, 1969)
New Castle Orthopedic Associates v. Burns
392 A.2d 1383 (Supreme Court of Pennsylvania, 1978)
Leonard v. Thornburgh
463 A.2d 77 (Commonwealth Court of Pennsylvania, 1983)
Oncken v. Ewing
8 A.2d 402 (Supreme Court of Pennsylvania, 1939)
Committee of Seventy v. Albert
381 A.2d 188 (Commonwealth Court of Pennsylvania, 1977)

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Bluebook (online)
558 A.2d 185, 126 Pa. Commw. 11, 1989 Pa. Commw. LEXIS 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiner-v-secretary-of-the-commonwealth-pacommwct-1989.