Pollsters and public policy experts have long warned that when government is run by ballot questions, those who write the ballot questions will actually run the government. Now we see why.
Facing the likelihood of a humiliating defeat at the polls for an ill-timed proposal to increase the retirement age of state judges from 70 to 75, the GOP leadership of the Pennsylvania Senate last week filed an emergency petition with the State Supreme Court to change the wording of the ballot question.
Critics say that the motivation behind the last-minute word change is simply to confuse voters to approve what would otherwise be an unpopular constitutional change at the April 26 primary.
As it now stands, Ballot Question No. 1 reads:
“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?”
Senate President Pro Tempore Joe Scarnati and Majority Leader Jake Corman, in their emergency filing last week, have asked the Supreme Court to change the ballot question to read:
“Shall the Pennsylvania Constitution be amended to require that justices, judges and justices of the peace be retired on the last day of the calendar year in which they attain the age of 75 years?”
The intent of this proposed change is to confuse voters into thinking the ballot question is a reform, when it’s not, critics say. The hope is that uninformed voters will show up at the polls thinking that there currently is no mandatory retirement age for judges, and that retirement at age 75 is a reform.
This classic piece of deception by GOP Senate leaders goes a long way to explaining what’s wrong with Pennsylvania government and courts.
Rather than acknowledging obvious corruption in our courts, and addressing the issue, legislative and court leaders are intent on confusing voters to conceal corruption, prolong the status quo, and make things worse.
Several months ago a legislative leader explained to me why the ballot initiative to raise the retirement age of judges to 75 faced tough sledding, even in the best of times.
In the last few years a half dozen or so state legislatures have backed similar ballot initiatives to raise the retirement age of judges, only to have them defeated by voters.
Similar ballot initiatives have failed in recent years in Louisiana, Hawaii, New York and Ohio. (Texas voters approved the change in 2007, and Vermont in 2002.)
So even in the best of times for judges and courts, letting old judges stick around isn’t a popular idea.
Unfortunately for those backing the Pennsylvania proposal, it’s taken a lot of work and time — several years and two consecutive legislative sessions — to get the current question on the ballot, only to have it end up before voters at a particularly bad time for state judges.
The best hope for the ballot measure, the legislator offered, is a primary turnout so low that only stalwart Republicans and establishment types would show up to vote.
With the rise of Donald Drumpf and the unsettling news that almost 50,000 Democrats have left the state Democratic Party to presumably vote for Drumpf in the upcoming primary, that calculus has gone out the window.
Faced now with the disarming prospect that tens of thousands of unwashed, uncontrollable and unsophisticated voters may show up at the polls next month, Republican leaders have decided the best course of action is to trick the lower-educated rubes into voting for the ballot change.
How bad is the current environment for state judges hoping to lengthen their tenure?
Pennsylvanians who keep up on current events need no reminding that our state courts and the judges administering them are in desperate need of reform, if not a swift kick in the pants. The last thing state judges deserve is five more years on the bench.
But less-informed voters may need to be reminded.
The state Supreme Court and lower courts have been mired in one outrageous scandal after another:
- Two state Supreme Court justices were caught red-handed in a pornographic email and blackmail scandal and were forced to resign, one just this week. Another justice resigned after she was caught using her state office staff to get elected to the bench. Other state judges have been mired in bribery and influence peddling scandals, including the notorious Kids for Cash scandal.
- Blatant conflicts of interest involving judges seem the norm. Last month state courts were made a laughingstock before the U.S. Supreme Court by former Chief Justice Ron Castille’s insistence on sitting on a death penalty case he himself had prosecuted years before as a DA.
- Last year’s Supreme Court elections were awash in millions of dollars of unsavory campaign contributions, mostly tendered by law firms or interests with business before the courts.
- These same blatant conflicts of interest have also prevented the court’s own Judicial Conduct Board from cleaning up this mess. And there are plenty of other past scandals involving state judges that the Conduct Board has simply swept under the carpet and failed to even examine.
- Turmoil in our judiciary is so bad that just last month every living past or present governor of Pennsylvania called for a constitutional amendment to replace the election of appellate judges with a system of merit selection.
From all this, you would think the state’s judges and their water carriers in the legislature would get the message and clean up their act. No such luck.
Instead, last week, lawyers for GOP senate leaders filed an emergency petition with the state Supreme Court asking the justices to intervene six weeks before the election to change the wording of the ballot question.
The grounds for the proposed change?
Senate leaders told the Supreme Court that the ballot question as prepared by the secretary of state did not match the desire of the legislature.
This prompted a remarkable 60-page response from Gov. Tom Wolf’s administration asking the Supreme Court to leave the ballot question alone.
The administration’s brief points out that the language for the ballot question was properly recorded by the secretary of state and approved by the attorney general’s office from the approved legislation, and that it’s too late to turn back now.
The state has already spent $1.3 million advertising the ballot question this year, the governor’s brief relates, while a third and final round of newspaper advertising is scheduled for this week, as required by the state constitution for a referendum question.
The GOP Senate leaders complain that the ballot question as written is “confusing, distracting and misleading.”
They say Joint Resolution 2015-1, providing for the ballot question, read, in legislative typography, that justices and judges “shall be retired on the last day of the calendar year in which they attain the age of [70] 75 years.” (The brackets show the old language, while the underlined “75” denotes the new language.)
“Because of the way the General Assembly drafted the proposed amendment, bracketing 70 and underlining 75, it is simply not possible to use the language from Joint Resolution 2015-1 as a ballot question,” the governor’s brief reads. “Were the Ballot Question to include that language, the Secretary of the Commonwealth, by necessity, would have to explain what the bracket and underline mean since the general public would not be expected to understand legislative drafting. Besides his authority to do so under the Election Code, the Secretary must change the ballot question as a practical matter.”
“Amending the Ballot Question in the manner suggested by (GOP Senate leaders) would likely leave the voter wondering what the current requirement is—or worse yet, leave the voter with the impression that there is currently no requirement (for retirement) at all,” reads the governor’s brief.
There are indications of a widespread popular and political backlash against the proposed ballot initiative.
On March 12, Gov. Wolf’s former Secretary of Planning and Policy, John Hanger, wrote on facebook, “VOTE NO this April. Please vote against increasing the retirement age for Pennsylvania Supreme Court justices from the current 70 years to 75 years. The Supreme Court has been engulfed by one scandal after another, but 3 justices are near the 70 year retirement age. And now they want to stay longer. Vote NO on the primary ballot in April.”
It remains to be seen how the state Supreme Court will respond to the Senate leaders’ emergency request to change the ballot question.
As I wrote last year, the retirement of judges at age 70 was an important reform designed by the delegates of the state’s 1968 constitutional convention to retire old judges and eliminate their political meddling.
State judges currently draw a salary of up to $195,000 a year. So five more years on the bench means some of these judges will take in about a million dollars more in salary should voters approve the ballot question — and that includes the state Supreme Court justices who now are considering changing the ballot question.
At the 1968 state constitutional convention, which approved the current “70 and out” provision, delegate and former governor Bill Scranton called the changes to the judiciary, including mandatory retirement of judges at age 70, “revolutionary,” “a new modern era for our judicial system,” and among the most progressive in the nation.
Ironies abound
The process to add the question to the 2016 primary ballot began four years ago, in 2012, when a group of six state judges sued in federal court, arguing they were entitled by the “the inherent rights of mankind” to stay on as long as they desire, or until they can no longer drag themselves across the floor to the bench, whichever comes first.
In another court challenge, commonwealth attorneys told the judges that they must convince the legislature to change the state constitution if they want to stay on till 75.
So that’s what they did. The Republican-controlled courts found a sympathetic ear from Republicans controlling the legislature.
The process to change the constitution was a long and arduous process.
To place the question on to the ballot, both legislative houses were required to pass the proposed amendment in two consecutive legislative sessions.
Legislation was passed in October 2013 in both the state House and Senate, and identical legislation was passed again last year.
The irony is that Republicans comfortably controlled the state Supreme Court when this long process began.
But now, four years later, with last week’s resignation of Republican Justice Michael Eakin, there may be only one sitting Republican remaining on the high court.
So if this ballot question prevails, the Republicans may be helping mostly Democrat justices stick around for another five year.
Legislative leaders were also counting on low turnout in the 2016 primary to win the ballot question. They weren’t counting on Donald Drumpf bringing tens of thousands of voters to the polls this April.
So they may have shot themselves in the foot.
In any event, Gov. Tom Wolf is to be congratulated for opposing a change to the ballot question.
The politics and wisdom of the proposed change in the language of the ballot question aside, the current court battle underscores the problem with ballot initiatives and referenda. Referenda are not the panacea that some profess.
Pollsters and public policy experts have long warned that when government is run by ballot questions, those who write the ballot questions will actually run the government.
Now we see why.
So SCOTUS is that much more able to continue beyond age 70 but lowly state Supremes lose their wisdom magically at age 70?
So what impact then does that have on Scotus? Am I to assume, then, that it is that much wiser, and more capable than, lowly state Supremes?
Your site is such official Democratic Party b#$$sh&%. This has been discussed for several years by BOTH parties. Obviously this is a much bigger issue for the lower courts and District Magisterial Justices.
I just don’t get this at all. Judges should be appointed, not elected. If you want to set term limits of their appointments, fine. But, to set age limits is just plain wrong and unconstitutional, more so if they are elected.
This bill received between 75 and 80% of the legislative votes in favor, and was sponsored by many Democrats and Republicans. You call the courts “Republican controlled” yet the Democrats currently hold a 5-2 majority on the PA Supreme Court.
You are attempting to extract political divisiveness from a bi-partisan, non-political issue in an effort to besmirch Republicans, who have overwhelmingly supported this initiative. The fact that a small group of legislators have tried to flex political muscle is unfortunate, but is not representative of Democrats or Republicans as a whole. Your anti-Republican bias comes out terribly in this ill-informed “article.”