The Committee of Seventy, along with a political action committee and three candidates, is suing Common Pleas Court President Judge Sheila Woods-Skipper over her inaction in replacing the three city commissioners this election cycle.
The committee, a Philadelphia government watchdog group, says that state election law calls for Woods-Skipper to appoint three judges, or "electors of the county," to act as the Board of Elections when there is a ballot question asking for a Home Rule Charter amendment. A question regarding changes in the city's procurement practices will be on the May primary ballot.
The plaintiffs believe that the conflict would occur because the city commissioners would be overseeing an election that asks voters to weigh in on a change in procurement practices that would affect the city commissioners.
"Through her lawyers, she indicated she was not going to act as we had requested," said Alison Perelman, executive director of Philadelphia 3.0, a political action committee that along with Committee of Seventy founded the Better Philadelphia Elections Coalition last year.
The group filed a lawsuit Monday asking the state Supreme Court to force Woods-Skipper to comply with the state election code in time for the May election.
Woods-Skipper could not be reached for comment Monday. Art Heinz, spokesman for the Administrative Office of Pennsylvania Courts, which is representing Woods-Skipper in the matter, said the office does not comment on pending litigation.
The section of the code that the plaintiffs cite in the lawsuit says, in part, that "whenever a member of the board of county commissioners is a candidate for nomination or election to any public office, the president judge of the Court of Common Pleas shall appoint a judge or an elector of the county to serve in his stead." The city commissioners serve as Philadelphia's board of elections.
The very next line of the code section says: "Whenever there appears on the ballot a question relating to the adoption of a Home Rule Charter for the county or amendments to an existing county Home Rule Charter, the president judge of the Court of Common Pleas shall appoint judges or electors of the county to serve in the stead of the county commissioners."
The plaintiffs say that Woods-Skipper and her predecessor have replaced city commissioners during their reelection cycles but have not appointed replacements when there has been a charter amendment question on the ballot.
Committee of Seventy and Philadelphia 3.0 looked at every primary and general election since 2002 and determined that the commissioners should have been recused in 23 out of 31 elections.
"Seventy-five percent of the time, they should be legally unable to serve in their positions," said David Thornburgh, president of Committee of Seventy. "This further raises the absurdity of the existence of the office."
Since January 2016, when City Commissioner Anthony Clark was selected to be chairman of the three-member board of commissioners, Thornburgh and fellow members of the newly created Better Philadelphia Elections Coalition have been outspoken critics of the city commissioners. Clark was known for rarely coming into his City Hall office when he was chosen to be chairman and had failed to vote in six recent elections.
The Better Philadelphia Elections Coalition held a news conference last year calling for City Council to replace the three elected commissioners with an election director appointed by the mayor and an appointed, unpaid and bipartisan Board of Elections. To date, no one on Council has introduced such legislation. The change would require voter approval by a charter amendment question on the ballot.
"When that happens — we'll say 'when,' not 'if' — that package of amendments goes through to reform and modernize and replace this function, we want it to be clear that the commissioners need to be recused from that," Thornburgh said.
The three city commissioners have previously pushed back on the notion that the election system would function better with appointed individuals. They say they are accountable to the voters who elected them.
On Monday, Commissioner Al Schmidt declined to comment on the lawsuit. Clark and commissioner Lisa Deeley did not return requests for comment.
The Committee of Seventy and Philadelphia 3.0 have been working to eliminate the elected city commissioners positions. Shortly after the 2016 presidential primary, a Committee of Seventy staffer was reading through the election code and noticed the clause that says commissioners need to be recused when there is a ballot question.
The committee spoke with election lawyers who, Thornbugh said, agreed that the commissioners should be replaced during those election with ballot questions. In January, the committee sent a letter to Woods-Skipper asking her to replace the city commissioners this upcoming election.
Earlier this month, Woods-Skipper, through a lawyer, declined the request.
In addition to the Committee of Seventy and Philadelphia 3.0, Jordan Strauss, Brian Krisch and Katherine Rivera are also listed as the plaintiffs suing Woods-Skipper. Strauss and Krisch are running for judge of election and Rivera is running for inspector of election.
The Public Interest Law Center filed the lawsuit Monday on behalf of the Committee of Seventy and the three candidates. Philadelphia 3.0 is represented by election lawyer Lawrence Otter.