Inquirer Editorial: Lower court should hear Pennsylvania judges' retirement age case

The state Supreme Court's inability to decide whether a ballot question on raising the retirement age for Pennsylvania judges is misleading doesn't mean the issue is settled.

The Supreme Court deadlocked last week in deciding whether a question on November's ballot to amend the state constitution was improperly worded, so the case should go back to a lower court for review. After all, the Commonwealth Court is where the plaintiffs - who include two former state Supreme Court justices - initially filed their complaint.

The high court took over the case before the lower court could rule. But that shouldn't mean the lower court can't hear it now.

At issue is whether voters will be armed with all of the information they need to decide whether to raise the retirement age for state judges.

Initially, the wording on the ballot read: Shall the Pennsylvania Constitution be amended to require that [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?

But the Republican-controlled legislature changed the ballot question's wording 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?

The initial wording made clear to voters that they would be deciding whether to raise the retirement age. But the revised wording may cause some to think they are voting to implement a retirement age for the first time.

GOP legislators have good reason to withhold key information from voters. Chief Justice Thomas Saylor, the lone Republican on the Supreme Court, will turn 70 in December and would be forced to retire if the ballot measure raising the retirement age to 75 is not approved.

To his credit, Saylor recused himself from the court's 3-3 decision last week, but the deadlock effectively keeps misleading wording on the ballot.

Justice Max Baer, who turns 69 in December, took a less honorable path. He performed legal gymnastics in writing an opinion that would keep the misleading wording intact.

Joined by Justices Christine Donohue and Sallie Updyke Mundy, Baer wrote that making it clear that the retirement age for judges would rise from 70 to 75 would "render the particular ballot question more informative." But then Baer reversed course, saying: "We conclude that the ballot question as worded by the Secretary, in conjunction with the Attorney General's Plain English Statement, ensures that voters will receive all the information that they need to make an informed choice."

Translation: Baer believes voters are just fine with less information.

Justice Debra McCloskey Todd's opinion, cut to the chase: "The ballot question, as presently phrased, is inherently misleading and falls well short of meeting the exacting standard which all ballot questions for the adoption of constitutional amendments must meet."

Justice Todd is right. Since the Supreme Court couldn't agree, the case - and voters - deserve a hearing in the lower court.