Delay in judge retirement ballot question generates lawsuit
HARRISBURG — Three Democrats in the Pennsylvania Senate are asking a court to order the state to proceed later this month with a referendum about whether judges should be able to serve until they turn 75, extending the mandatory judicial retirement age by five years.
The lawsuit, filed late Thursday, targeted a resolution that just passed both legislative chambers, directing the secretary of state to rewrite the ballot question and delay the public vote from April 26 to the Nov. 8 general election.
“This is about changing the language to make it more likely to pass,” said plaintiff Sen. Daylin Leach, D-Montgomery. “Because these referendums, to change the retirement age, usually fail.”
Leach sued along with Senate Minority Leader Jay Costa, D-Allegheny, and Sen. Christine Tartaglione, D-Philadelphia, who said she is among nearly 22,000 state voters who have already cast absentee ballots for the primary.
The defendants are the two highest-ranking Republican senators, Joe Scarnati and Jake Corman, as well as the secretary of state under Democratic Gov. Tom Wolf, Pedro Cortes.
Supporters of rewriting and delaying the ballot question say the referendum’s language, drafted by the attorney general’s office, is needlessly confusing. The replacement language would say judges can serve until 75, but would remove the wording that explains the current retirement age is 70.
They also say more people will vote in November.
“It’s a matter of fundamental fairness,” said Matt Haverstick, the attorney for Corman and Scarnati. Independent and third-party voters, he said, have little reason to show up to vote on primary day.
“They either don’t know these things are on the ballot, so they don’t go, or they don’t know that they’re allowed to vote on the question,” Haverstick said.
Wolf administration spokesman Mark Nicastre said the Department of State would file a response on Monday, and in the meantime was working with counties to “manage the current uncertainty as effectively as possible.”
Leach, who personally supports the retirement age change, said changing the rules would set a bad precedent.
He suspects Republicans of wanting to change the wording so it has a better chance of passing, and therefore giving give more years on the bench to the lone Republican on the state’s highest court, Supreme Court Chief Justice Thomas Saylor. Saylor turns 70 in December.
“They want to make the language more palatable to a population which is expressing anti-incumbent sentiments,” Leach said.
Leach, Tartaglione and Costa asked Commonwealth Court to declare the postponement an unconstitutional infringement of voters’ rights and prevent Cortes from delaying the vote. The court on Friday agreed to take up the matter on an expedited basis and scheduled a hearing for Tuesday.
The referendum has already passed both chambers of the Legislature in two consecutive two-year sessions, leaving only voter approval as the last requirement to change the constitution.
The constitution currently requires the state’s roughly 1,000 judges, district judges and justices to retire by the end of the year in which they turn 70.
The lawsuit said that the resolution, which passed the House 110-77 on April 6 and the Senate 32-17 five days later, has not been “presented” to Wolf, as required in the constitution. They argued the delayed resolution violates the constitutional rights of qualified voters.
It asks the court to direct Cortes to “accept, count and verify” the referendum votes during the primary.