In a highly unusual move Wednesday, the Pennsylvania Supreme Court agreed to hear on an emergency basis a lawsuit filed last week by two retired Supreme Court justices and a prominent Philadelphia lawyer challenging the wording of the ballot question on the state's judicial retirement age.
The three-paragraph order gave Pedro Cortes, Pennsylvania's top election official, until next Wednesday to respond, and it promised to hear expedited arguments.
The suit itself is perhaps unprecedented, since it was filed by two ex-justices, Ronald D. Castile and Stephen Zappala Sr., along with lawyer Richard A. Sprague. They challenged the latest wording of the referendum question, saying it was "deceitful" because it implied that voters would be imposing a term limit on judges instead of extending their possible time on the bench by five years.
The current wording was approved by the legislature and ratified by Cortes in the spring after a last-minute legal challenge by some lawmakers who thought the original wording was cumbersome and confusing.
It read: "Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?"
Two weeks before the April primary, Republican legislators approved a joint resolution - with some Democrats supporting them - to change the language to read: "Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?"
The change was made so near primary day that counties had already printed ballots with the original wording. Thus, the legislature directed Cortes to disregard the results of any votes, and ordered that the question appear with the new wording on the Nov. 8 ballot. Nearly 2.4 million voters cast ballots on it, narrowly defeating it.
This week, two top GOP lawmakers - Senate President Pro Tempore Joseph Scarnati (R., Jefferson) and Senate Majority Leader Jake Corman (R., Centre) - argued in a brief that the suit against the revised wording by the former justices and Sprague was "flawed," saying the challenge was "based on a disappointing, unspoken predicate: The average voter of the commonwealth is uneducated and makes spot decisions in the voting booth."
After the Supreme Court announced it would hear the case, the lawmakers refiled the suit late Wednesday afternoon with the high court.
Supreme Court Chief Justice Thomas G. Saylor, a Republican, who would be affected by the outcome of the ballot measure, recused himself from Thursday's order.
Sen. Daylin Leach (D., Montgomery) has contended the GOP-led revision is a veiled attempt to protect Saylor.
Republicans are in the minority on the seven-member court. Saylor turns 70 at the end of this year, and the next justice in line to lead the court is Max Baer, a Democrat.