Supreme Court deadlock ends challenge to referendum on Pa. judge retirement age

HARRISBURG - A deadlock Friday by the Pennsylvania Supreme Court left intact a last-minute legislative change in the wording of a ballot question about when state judges must retire, setting the stage for the referendum to appear as planned on the November ballot.

The high court's 3-3 vote seemed to end the high-profile - and high-stakes - challenge to the measure launched by two former Supreme Court justices and one of the region's prominent lawyers.

"It's the correct outcome," said Philadelphia lawyer Matt Haverstick, who represents Senate Republicans. "The court recognized what we've always maintained - the general assembly has the ability to write ballot question language, and the language the general assembly wrote for this particular ballot question was simple and correct."

But shortly after the high court vote was announced, former Justices Ronald D. Castille and Stephen Zappala Sr. and Philadelphia lawyer Richard A. Sprague took another shot at keeping alive their challenge.

They filed motions to have the case kicked back down and considered by Commonwealth Court, where they initially filed the complaint this summer. The Supreme Court, which took over the matter on an emergency basis, did not immediately rule on the request.

The lawsuit contended the GOP-controlled legislature's 11th-hour bid to rewrite and delay the referendum this spring was an attempt to hoodwink voters and influence the outcome.

The initial language - which had been approved and printed on April primary ballots - asked voters if they would approve raising the mandatory retirement age for judges from 70 to 75.

But weeks before the primary, the legislature approved changing the question language and moving it to November's ballot.

The new wording asks voters only if they approve requiring judges to retire at age 75, leaving out the fact that the mandatory retirement age under current law is 70 - and that what they are actually being asked to do is increase that ceiling by five years.

Castille, Zappala and Sprague called the new language "deceitful." They argued that it was designed to garner approval from voters "who are actually in favor of restricting the terms of judges and justices, but are unaware that the proposed amendment will have the opposite effect," according to the lawsuit.

With a recusal by Chief Justice Thomas Saylor, who turns 70 later this year and most stands to benefit from the change in the ballot question, the remaining justices split 3-3, which means that the challenge fails. (In a separate but related decision Friday, the Supreme Court rejected another challenge to the ballot question.)

In an opinion, Justice Max Baer, a Democrat who will turn 70 next year and is next in line to become the chief justice, disagreed the reworked ballot question was misleading. He was joined by Justices Sallie Updyke Mundy, a Republican, and Christine Donohue, a Democrat.

Baer noted the legislature has the power to decide "the manner and time" in which votes on such ballot questions occur; and that the Secretary of State, who oversees elections, writes the referenda language.

The only requirement is that a ballot question be phrased in a way that conveys "clearly and accurately" what voters are being asked to do - and that "judicial interference" is only warranted when the wording is clearly misleading.

The justices did not find that to be the case with the revised question on retirement.

They noted that state law requires a so-called "plain English statement" to be posted at polling stations (though not in voting booths) - and that the plain language statement in this case spells out that voters are being asked to increase judge's mandatory retirement age by five years.

"We conclude that the ballot question as worded by the Secretary, in conjunction with the . . . Plain English Statement, ensures that voters will receive all the information that they need to make an informed choice," Baer wrote, adding: "We find nothing in this construct to be unfair or misleading.

Justice Debra McCloskey Todd, a Democrat, was among the three who disagreed. She wrote that the language is "inherently misleading," and could have "deleterious consequences," namely, that voters will be misled into approving it. She was joined by Justices Kevin M. Dougherty and David N. Wecht, both Democrats.

"When the people amend our founding charter," Todd wrote, "they should do so with clear and keen eyes . . . In our view, the proposed ballot question does not afford the people that opportunity."

Because changing the mandatory retirement age for judges requires a change to the state constitution, legislators had to approve the measure in consecutive two-year sessions - no easy task.

They finally did, and the question was slated for the April ballot.

Many counties had already printed ballots with the original wording on it and nearly 2.4 million voters ended up voting on the measure, despite public messages that the vote wouldn't be valid.

Among those that voted, the measure lost.

The results were in keeping with a national trend: voters in other states have overwhelmingly tanked similar measures to raise or repeal the mandatory retirement age for judges.

Drew Crompton, the top lawyer for Senate Republicans, said Friday the new language was ratified by both the state Attorney General's office and the Department of State. He also said the new language was "a mirror image" of the measures the legislature approved in two consecutive sessions.

"There is always additional information you can utilize for ballot questions," he said, adding: "There is always some subjectivity inside every proposed question. But we believe that the question, as we proposed it, met the requirements of the underlying legislation we passed."

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