Clock ticking, referendum over Pa. judge retirement age lands back in court

HARRISBURG - With just six weeks until the election - and ballots in many counties already printed - Commonwealth Court is expected to swiftly rule on an increasingly ugly and persistent legal challenge to a ballot question about when state judges should retire.

The state Supreme Court already considered the case this month. Its 3-3 deadlock essentially left intact and on pace to go to voters the referendum that was halted and rewritten by the legislature in the spring.

But a flurry of legal briefs filed late this week is asking the lower court to do what the high court could not - rule definitively on the case, and quickly.

The fight is over a last-minute change the Republican-controlled legislature made this year to a ballot question seeking to raise the mandatory retirement age for judges - a change that resulted in delaying the ballot question until November.

The original wording spelled out that voters were being asked to approve whether to raise the retirement age from 70 to 75; the new wording asks voters only whether they would approve mandating judges to leave the bench when they turn 75.

Two former state Supreme Court justices, Ronald D. Castille and Stephen Zappala Sr., together with Philadelphia lawyer Richard A. Sprague, sued the state, saying the new wording was meant to hoodwink voters and influence the outcome of their decision.

"The rights at stake in this action are as fundamental as the issue is clear," they wrote in a filing Friday, calling the new wording "manifestly deceptive," depriving voters of "their right to be adequately informed of the issue they are being asked to decide."

As they have in court filings for months, the three suggested that Republican senators made the change against the backdrop of an email scandal involving pornographic, racist, and offensive messages that had ensnared two former members of the Supreme Court - and at a time when public confidence in the state's judiciary was shaken.

"The mass media attention surrounding the Pennsylvania court system cast doubt over the electorate's willingness to extend the tenure of state court jurists," they wrote.

Drew Crompton, the top lawyer for Senate Republicans, on Friday called that argument offensive, and noted that the case has already been decided by Pennsylvania's Supreme Court.

"On the one hand, they want to accuse us of playing hide-the-ball, all the while they make numerous red herring 'arguments,' " Crompton said.

The state's top election official, Secretary of State Pedro A. Cortes, also countered in court papers this week that the case had already been decided by Supreme Court, and that Castille, Zappala, and Sprague "should not be permitted to waste any additional judicial or governmental resources on matters completely disposed of by the highest court in the Commonwealth of Pennsylvania."

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