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 confusing.
“The court has these issues well briefed, and we all can’t wait to hear what it says,” Milone told the Pennsylvania Record.
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 said.