HARRISBURG, Pa. — The state’s highest court said Friday that it was deadlocked on whether to let voters consider a constitutional amendment to raise judges’ mandatory retirement age from 70 to 75, meaning the question will appear on the Nov. 8 ballot.
The Supreme Court voted 3-3 on a legal challenge by two of its own retired justices and a lawyer who had argued the reworded ballot would mislead voters into thinking they were imposing the state’s first-ever age limit rather than giving judges five more years before they must step down.
“Neither plaintiffs nor the justices who support their position have cited any authority to conclude that a ballot question is misleading where it does not explain the effect of the proposed amendment, thereby affording this court the right to interfere with the submission of the challenged ballot question to the qualified electors of Pennsylvania,” wrote Justice Max Baer, who along with Justices Christine Donohue and Sallie Updyke Mundy favored throwing out the lawsuit.
Justice Debra Todd, joined by Justices David Wecht and Kevin Dougherty, called the ballot question “inherently misleading and … well short of meeting the exacting standard which all ballot questions for the adoption of constitutional amendments must meet.” They would have issued an injunction against the ballot question.
“The people must be able to evaluate the effect of a proposed change against the constitution’s present design,” Todd wrote.
Because they were tied, the matter reverts to where it was before the lawsuit was filed. A separate challenge to the case by three Democratic state senators had been rejected by the Commonwealth Court, and on Friday the high court upheld that decision with a brief order .
The proposed amendment has passed the Legislature in two consecutive sessions and was on track for a vote during the April primary when state lawmakers hastily passed a measure to invalidate the primary votes.
Voters narrowly defeated the referendum during the spring primary, with unofficial returns indicating it failed 51 percent to 49 percent.
The Legislature also directed the ballot question to be rewritten to remove reference to the current age limit, prompting the lawsuit by retired Justices Ronald Castille, a Republican, and Stephen Zappala Sr., a Democrat, as well as prominent Philadelphia lawyer Dick Sprague.
The three plaintiffs argued that the change would defraud voters into thinking they were putting a new restriction on judicial service rather than loosening the existing age limit. Judges currently must retire at the end of the calendar year in which they turn 70.
The office of Secretary of State Pedro Cortes, the defendant, issued a statement saying the required advertising of the question has begun and will not need to be changed. The question will appear as: “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 years?”
The plaintiffs’ attorney declined to comment on the decision but said late Friday they had filed a motion asking the court to reconsider its decision.
The seventh justice, Thomas Saylor, did not participate in the case. He turns 70 in December and must retire at the end of the year if the ballot question fails.
The change would apply to about 1,000 justices, judges and district judges. Passage could provide them with a significant windfall — the more than 400 county Court of Common Pleas judges are typically paid $177,000 with benefits each year.