Suit: Politics, porn scandal behind changes in Pa. ballot question

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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.

A court filing Tuesday suggested that political motives and concerns over a Supreme Court pornography scandal were behind efforts to alter the wording of a judicial retirement-age ballot question to extend the tenure of Pennsylvania judges to age 75.

In a suit that seeks to have the GOP-backed rewrite of the ballot question deemed unlawful, plaintiffs argued that lawmakers sought to obscure what voters would read in the election booth just as scandal had sunk the reputation of the high court to new lows.

The Supreme Court was under a cloud of pornography-related resignations - Justice Seamus McCaffery in late 2014 and Justice J. Michael Eakin earlier this year - as Senate leaders pushed for the controversial change. The Republican-controlled legislature sought it eight days before Eakin's much-publicized troubles resulted in a March resignation, according to a brief filed by two former Supreme Court justices and a Philadelphia lawyer who have sued on behalf of voters.

They said the rewording was deliberately "misleading" and "deceptive."

"By the end of 2015, the mass media attention surrounding the Pennsylvania court system cast doubt over the electorate's willingness to extend the tenure of state court jurists," according to the brief in the challenge by former Chief Justices Ronald D. Castille and Stephen Zappala Sr. and Philadelphia lawyer Richard A. Sprague.

It was "against this controversial backdrop," they wrote, that lawmakers yanked the question from the April ballot - though it had already been printed in many counties. Lawmakers also ordered that it be reworded by November so that voters no longer saw any reference to the current retirement age of 70.

If a majority approves it on Nov. 8, the question would amend the state constitution so that judges could serve five years beyond the current mandatory retirement age.

Approval would immediately benefit GOP Supreme Court Chief Justice Thomas G. Saylor, who turns 70 this year. He is one of two Republicans on the court, which flipped last fall to 5-2 Democratic control.

Drew Crompton, the Senate's top Republican lawyer, said Tuesday that the filing contained "wild accusations that are baseless" and that Sprague, Castille, and Zappala "should know better than to pitch arguments to the Pennsylvania Supreme Court that are fundamentally false."

"Dick Sprague and the other plaintiffs' claims that the ballot wording has anything to do with so-called Porngate are untrue and outrageous," Crompton said in a statement.

The changes sought by Senate President Pro Tempore Joe Scarnati (R., Jefferson) and Majority Leader Jake Corman (R., Centre) were pursued in good faith, he added, and based on a "belief that the ballot question should be simplified for the voters."

The legislature approved the ballot measure in November 2015, after which Secretary of State Pedro Cortes had April 26 primary ballots printed that reflected the resolution passed by the Assembly in November.

The ballot question Cortes formulated asked if jurists should be allowed to retire "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."

Both Republican-controlled legislative houses said that wording was unwieldy and confusing. So they passed a measure, with the support of some Democrats, to postpone the referendum and change the wording.

Wile the electorate might have been disposed to approve such a change months before, the winds of public opinion had shifted as the primary neared, the court filing suggested.

A month before the primary, Eakin was under pressure to resign in the pornographic-email scandal, it noted.

On March 6, eight days before Eakin resigned, Senate GOP leaders filed an emergency request with the Supreme Court to reword the ballot question so that it no longer mentioned the current retirement age.

Cortes, a Democratic appointee who is Pennsylvania's top election official, told the court he believed the change "would deny Pennsylvania voters relevant information regarding the proposed constitutional amendment," and asked that the wording change be denied, according to the brief, filed Tuesday. On March 23, the court did that.

Undeterred, Senate leaders pressed forth with a new resolution. The Assembly approved it, instructing Cortes to postpone the ballot question to November and rewrite it to eliminate the reference to age 70.

A legal challenge to that action filed by Democratic lawmakers is pending before the Supreme Court. The brief filed Tuesday is in connection with a separate July 21 lawsuit, filed against Cortes by the former justices and Sprague.

Plaintiffs say the reworded question "is manifestly deceptive and will deprive voters of their right to be adequately informed of what they are being asked to decide."

Cortes, in a previous filing in the case, said he complied with the Assembly's directive to reword the ballot out of a "need for certainty."

Cortes has said deadlines are in place, including one that passed Monday, for publicly advertising the ballot before the election. A spokeswoman for his office, however, could not explain whether there was any cutoff date after which the ballot question would be null and void.

mpanaritis@phillynews.com 610-313-8117 @Panaritism