HARRISBURG - With two weeks to the election, it appears voters will get to decide a ballot question on when judges should retire that two former top jurists and a prominent lawyer had sued to block, calling it "misleading" and deceitful.
The state's highest court Tuesday deadlocked on whether to keep alive the lawsuit by former Supreme Court Chief Justices Ronald D. Castille and Stephen Zappala Sr. and Philadelphia attorney Richard A. Sprague.
"It's a shame for the voters of Pennsylvania, regardless of party, that the Pennsylvania courts will not allow a hearing on an obviously misleading ballot question," lawyers for Castille, Zappala, and Sprague said in a statement Tuesday.
It was not immediately clear what further legal recourse they might have.
Castille, Zappala, and Sprague sued during the summer, contending that an eleventh-hour change the Republican-controlled legislature made to the ballot question in the spring was done to hoodwink voters into approving it.
The original question asked whether voters would approve of raising the mandatory retirement age of judges from 70, as it stands now, to 75.
The new wording - which is what will appear on the Nov. 8 ballot - asks only if they would approve mandating that judges retire at 75. It strikes any language explaining that judges currently must retire at the end of the year in which they turn 70.
Legislative Republicans who championed the change said they believed the original language was clunky and confusing.
Castille, Zappala, and Sprague saw it differently. They argued that the legislature purposely tinkered with the wording to make it sound as if voters would be imposing a retirement age on judges for the first time, rather than raising it.
The three said legislators purposely omitted key facts to trick voters who would otherwise oppose it into approving the question.
The state Supreme Court agreed to hear the case on an emergency basis but deadlocked on the question last month. The deadlock effectively upheld the ballot question with the new wording.
When Castille, Sprague, and Zappala were unsuccessful in asking a lower court to take on the case earlier this month, they appealed again to the Supreme Court.
But on Tuesday, the high court again announced a deadlock.
Justice Max Baer, joined by Justices Christine Donohue and Sallie Updyke Mundy, said the high court's original decision in the case, even though it resulted in a deadlock, was final. Baer and Donohue are Democrats. Updyke Mundy is a Republican.
Justice Debra McCloskey Todd, joined by Justices Kevin M. Dougherty and David N. Wecht, sided with Castille, Zappala, and Sprague. The three Democratic justices said voters are not receiving an answer to the "fundamental" question of whether they have been "fairly, completely, and accurately apprised" of what they are actually voting on.
The deadlock again has the effect of upholding the ballot question with the revised language.
Chief Justice Thomas Saylor, a Republican, recused himself from the case. He turns 70 at the end of this year and would be the first on the high court to benefit should voters approve the referendum.