Court battle looming on maximum age for judges

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Supreme Court Justice Thomas G. Saylor (left) swearing in Samuel Smith as House speaker in 2011. Saylor, 69, became chief justice of Pa. in 2015 - now the sole Republican on the high court.

HARRISBURG - What began four years ago as a legislative initiative with little controversy - letting voters decide whether to raise the retirement age for judges from 70 to 75 - is now entangled in a heated court battle.

Early in June, legislative Democrats will face off with Republican colleagues in Commonwealth Court over the GOP's eleventh-hour move to delay until the November election the vote on increasing the mandatory judicial retirement age.

That question was supposed to be decided by voters in last month's primary. In fact, it appeared on the ballot and was even voted on by more than two million people - and defeated. Yet the outcome was rendered moot even before the first votes were cast because Republicans, believing the ballot-question language too "confusing," postponed it at the last minute.

Now, Democrats are suing, contending that the process through which the delay was approved was illegal.

They are also crying foul, saying the delay had little to do with policy and everything to do with politics - and, specifically, protecting the chief justice of Pennsylvania, the lone Republican on the high court, who turns 70 this year.

"The entire goal was to change the language so they can get the ballot question passed," said Sen. Daylin Leach (D., Montgomery), one of three Democrats suing Republicans. "They want the proposal to pass - and they want it to pass because they want a Republican chief justice for the next five years."

Changing the mandatory retirement age for judges, which requires a change in the state constitution, needed to be approved by the General Assembly in two consecutive sessions - not an easy task.

But it received bipartisan support in both the House and the Senate in the 2013-14 session and the one that began in January last year, with many legislators openly saying they supported the proposal, as judges were living longer and leading more productive lives.

The initiative was moving smoothly until the Pennsylvania Department of State, which oversees elections, crafted the wording earlier this year for the ballot question.

It read: "Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district 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?"

Republicans balked, saying it was too long, too verbose, and too obscure, and they sued to change it. They were unsuccessful.

Early last month, with less than two weeks to the primary, the GOP-controlled legislature passed a joint resolution to postpone the vote until the Nov. 8 general election - and change the wording to this:

"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?"

Democratic Gov. Wolf's administration decided not to oppose either the delay or the new language. But because the change occurred so close to the primary, many counties had already printed ballots and programmed voting machines to include the question - with the old wording.

Though poll workers were directed to inform voters that their vote on it would not count, more than two million people cast votes - tanking it by a razor-thin margin.

To those who track issues affecting courts nationally, Pennsylvania's results were not a surprise.

Initiatives to increase the mandatory retirement age have fared poorly, said Bill Raftery, a senior analyst with the nonprofit National Center for State Courts, in Virginia.

Raftery said 32 states, as well as the District of Columbia, have imposed a judicial retirement age for appellate and other judges. Yet states that have tried to raise or repeal the retirement age have had little success.

"The long and short of it is, these things fail and keep on failing when it goes to the ballot box," said Raftery. "In many of these instances, the perception among voters is, they are not going to give anyone, any elected official, more years in office."

Given those statistics, some legislative Democrats believe that Republicans moved to change the language because they were afraid of the outcome.

Democrats believe that the new language deliberately omits key information: that voters are being asked to raise the judicial retirement age. The new wording, they said, leaves an inaccurate impression that they are being asked to impose an age limit for the first time.

The stakes are high. If approved by voters, the new retirement age would apply to all of the state's roughly 1,000 judges.

For the state Supreme Court, its impact would be immediate: Chief Justice Thomas G. Saylor, a Republican, will turn 70 at the end of this year. He is the lone Republican on the seven-member court, which now has a vacancy because former Republican Justice J. Michael Eakin resigned earlier this year as he faced judicial ethics charges.

Saylor, through a spokesman, declined to comment.

Republicans balk at the suggestion that they are motivated by politics, saying they are looking after the public interest.

Matt Haverstick, the Philadelphia lawyer representing Senate Republicans in the lawsuit, said in an interview last week that not only would the ballot question be cleaner and clearer on the November ballot, but also more voters would have a chance to speak their mind.

In primaries, only voters with a stated political party affiliation can vote on candidates vying for their party's nomination. State law allows independent voters to cast votes on questions that appear on a primary ballot, but Republicans argue that many residents may not know that.

"This is about having the question be clear and concise for voters to make an informed decision," Haverstick said.

As for the results of May's primary vote, Haverstick said the question was "legally off the ballot." The outcome, he said, is not reliable because there is no telling how many people decided not to vote because of the last-minute change.

"The reliability of that vote," he said, "is forever suspect."

acouloumbis@phillynews.com717-787-5934

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