Spotlight on Supreme Court as battle over judges' retirement age

09.20.16 | Bob Price

By the end of the year, 19 judges statewide could be forced to retire, including the chief justice of Pennsylvania's Supreme Court.

By the end of next year, 28 more would be expected to join their ranks.

Voters could change that in November, with a ballot question asking them to raise the mandatory retirement age for judges.

But the pitched battle over its wording - which resulted in another high-profile Supreme Court ruling Friday and a promise for another challenge - has become testament to how high the stakes are for the bench.

Pitting two former justices against their current bench, it has trained an unlikely spotlight on the high court, raising the specter of an inherent personal interest in the outcome.

"It's hard to escape the conclusion that you have political intrigue and maneuvering in this case," said David Thornburgh, who heads the good-government watchdog group Committee of Seventy.

At issue is whether to allow judges, now required to retire at age 70, to stay until they are 75.

That exact question appeared on last spring's primary ballot. But the results of that vote didn't count because the Republican-controlled legislature - with the support of some Democrats - decided just weeks before the primary to change the wording and postpone it until November. The Democratic Wolf administration, which initially balked, did not stand in the way.

The new wording asks voters only whether they approve requiring judges to retire at age 75 - leaving out that the current retirement age is 70 and that voters are being asked to extend it by five years.

The ensuing legal battle over the new wording - which critics have alleged was intentionally designed to deceive voters and make passage more likely - landed before a Supreme Court whose members potentially were handed a role in influencing their tenures on their $203,000-a-year jobs.

The seven-member Supreme Court took the case on an emergency basis this summer but deadlocked in a 3-3 vote, which had the effect of upholding the legality of the new wording.

On Friday, the same six justices voted 4-2 to reject a request by the plaintiffs - former Supreme Court justices - Ronald D. Castille, a Republican; Stephen Zappala Sr., a Democrat; and Philadelphia lawyer Richard Sprague - to let a lower court, Commonwealth Court, reconsider their challenge.

Both rulings occurred without participation from Chief Justice Thomas Saylor, a Republican. Saylor's decision to recuse himself may be the starkest, but not only, example of the debated twists of the case.

He will turn 70 at the end of the year - and will have to retire unless the ballot question is approved.

Bruce Ledewitz, a law professor at Duquesne University and an expert on the Pennsylvania Supreme Court, said he believed that "it made no sense" for Saylor to recuse himself because that allowed the court to deadlock on an important issue.

Saylor's conflict, said Ledewitz, may be "more direct and immediate . . . but every single justice has exactly the same conflict."

Nonetheless, Saylor has taken the brunt of scrutiny, as critics have groused that the eleventh-hour change in the ballot wording was done to keep a Republican - in this case, Saylor himself - as chief justice on a high court stacked with five Democrats.

"Can you imagine the storm of criticism that would have rained down on him if he hadn't recused himself?" said one lawyer familiar with the case, who asked not to be identified because of the sensitivity of the matter.

But others justices have not been immune from criticism - much of it confined to private grumbling as few want to publicly question the motives of the state's top jurists.

Justice Max Baer, a Democrat, wrote the opinion upholding the legality of the new wording. Baer will turn 70 next year, and will have to retire if the ballot question is not approved. He is also next in line to become chief justice after Saylor retires.

Justice Sallie Updyke Mundy, a Republican, joined Baer in his opinion. Senate Republicans, who have gone to court to defend the wording change, recommended Gov. Wolf nominate her to the high court earlier this year to replace former Justice J. Michael Eakin, who resigned from the bench amid the pornographic-email scandal.

Justice Debra Todd wrote the opinion that agreed with Sprague, Castille, and Zappala that the new wording was deceptive. A Democrat, Todd is next in line to become chief justice after Saylor and Baer - as soon as 2018 if the ballot question fails.

Justice Kevin Dougherty, a Democrat and brother of Philadelphia labor leader John Dougherty, was elected to the court last year after receiving support from Zappala, among others. Zappala even appeared in a campaign commercial for Dougherty, saying it was the first time he had "publicly endorsed anybody." (Though in the last ruling Friday, Dougherty sided against Zappala's side.)

Jim Koval, a spokesman for the Supreme Court, said Friday that the justices do not comment on cases pending before them. But he noted: "It seems to me that people are missing the fact that this affects all judges, not just Supreme Court justices."

If the case does end up in Commonwealth Court - Sprague vowed Friday to file another challenge this week - a new round of scrutiny could emerge for those judges.

Ledewitz, the Supreme Court expert, said criticism aside, when there is a legitimate legal question such as the one in this ballot case, the high court cannot shirk its responsibility to be arbiter.

"You have to be able to go to court," he said. "And this is not a federal question, it's a state question. It's the state courts - or nothing."