HARRISBURG – The state Supreme Court will consider on
an emergency basis a lawsuit challenging the language to be used in a ballot
question regarding the mandatory retirement age for judges in the state.
Although deadlines for advertising the ballot question are
quickly approaching, Maida Milone, executive director of Pennsylvanians for
Modern Courts (PMC), said she is not sure what form of relief the court might
grant, including whether it might issue an opinion stating that the wording is
“The court has these issues well briefed, and we all can’t
wait to hear what it says,” Milone told the Pennsylvania
Milone also said that it is not known whether the state’s
high court will take action before the deadlines for ballot question advertising. The
first round of advertisements for questions must have been published by Aug. 8, the
next round by Aug. 29 and the final round by Sept. 26. In addition, election
notices must be placed on at least 20 sites by Aug. 10.
“There is some urgency,” Milone said.
The dispute over wording centers on whether the question
should mention the fact that justices, judges and magisterial district judges
are currently required to retire on the last day of the calendar year in which
they turn 70, or whether it should only include the proposed change, under
which the mandatory retirement age would be the last day of the year in which
the justice or judge turns 75.
The lawsuit was filed by former justices Ronald D. Castile
and Stephen Zappala Sr., along with attorney Richard A. Sprague. They argued in
the complaint that the language, as currently drafted, may lead voters to
believe that they are being asked to impose a term limit on judges, rather than
granting a five-year extension of the current retirement age.
The wording has been mired in controversy for some time. In
the spring, some lawmakers opposed the original wording of the question,
arguing that it was confusing and unwieldy. As a result, the current language
was approved by the Pennsylvania Legislature and by state election official
Pedro Cortes. The current language only refers to the proposed mandatory
retirement age of 75, with no mention of the existing requirement.
However, there was no time before the Pennsylvania primary
election to change the printed ballots, so voters considered the original
wording. Despite the primary vote that saw almost 2.4 million voters defeat the
ballot referendum, the legislature decided the votes cast in the primary would
not count and that the retirement age would be decided, with the amended
wording, at the Nov. 8 general election.
Pennsylvania Senate President Pro Tempore Joseph Scarnati and
Senate Majority Leader Jake Corman, both Republicans, filed a brief supporting the current
language. They said in the brief that the lawsuit is “based on a disappointing,
unspoken predicate: The average voter of the commonwealth is uneducated and
makes spot decisions in the voting booth.”
Milone said PMC – a nonprofit, nonpartisan group that seeks improvements in Pennsylvania's courts – is neutral on the issue. She said good
arguments have been offered for allowing judges who have proven their skills
over the years to continue their service, but that there are also good arguments
for diversity and bringing new judges on board.
“There are really strong arguments on both sides,” Milone