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Brian O'Neill: Pennsylvania gets duped by deceitful ballot question

M. Spencer Green/Associated Press

Brian O'Neill: Pennsylvania gets duped by deceitful ballot question

Despite signed affidavits from voters saying they’d been duped by Pennsylvania’s deceitful ballot question on whether to increase state judges’ mandatory retirement age, a federal judge has denied the challenge to its legality.

In an 82-page opinion, U.S. District Judge Robert D. Mariani essentially said the question might have been misleading but it would have to be an outright lie before a federal court would become a “superlegislature’’ and second-guess the wisdom of legislation.

Sprague & Sprague, the Philadelphia law firm that challenged the question on behalf of a couple of former state Supreme Court justices and others, will not appeal. It stated it still believes the question was “unlawfully deceitful,’’ but further challenge would be unfair to judges whose terms would otherwise have expired at the end of 2016.

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Judges may now retire at 75 rather than 70. Had it been worded that way last November, nobody would have taken issue, but it also would have been far less likely to pass. We’ll never know what Pennsylvanians would have decided if we’d been asked a straight question rather than this one:

“Shall the Pennsylvania Constitution be amended to require the justices of the Supreme Court, judges and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?”

Understandably, many voters took that to mean there was no existing age limitation. Among them were John G. Lloyd, 63, of Lower Burrell, and Andrew Luciana, a 32-year-old Springdale voter, who signed affidavits saying they’d been misled by the ballot’s wording.

Mr. Lloyd said that when he read it, “I thought to myself, ‘It’s about time we have a mandatory judicial retirement age because judges are staying in office too long.’’’ He voted “yes” and would definitely have voted “no” had he known he was upping the retirement age by five years. Learning the truth later, he felt “personally offended and intentionally lied to.’’

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Mr. Luciana said he inferred from the question that state judges, like those on the U.S. Supreme Court, could remain in office as long as they wanted. He doesn’t think judges should serve past the age of 70, and when he found out the truth shortly after voting, he felt as if he was deceived “into casting a vote that is the opposite of my beliefs.’’

He was deceived. The leaders of America’s Largest Full-Time State Legislature knew exactly what they were doing. They wanted their buds on the court to get the extra five years, so they fiddled with the ballot wording to get the result they sought.

As the legal challenge correctly noted, this question came in the wake of accusations of misconduct against some state Supreme Court justices. That put in doubt the electorate’s willingness to give these jurists even more time on the bench. So our legislative leaders got to work on a plan even more surefire than Dean Wormer’s scheme to put the Deltas on double-secret probation in “Animal House.”

That question on the spring primary ballot that said that judges must retire at 75 “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”? Forget that.

Fifteen days before the primary, the state House decided in a 110-77 bipartisan vote and the Senate in a largely Republican 32-17 vote to delete that final phrase that the bill’s backers had called “nothing more than superfluous and gratuitous commentary.’’

Bwah-hah-hah. It was too late to get the question off the spring primary ballot, but the bill directed that any vote there be disregarded. Some 51 percent of the nearly 2.4 million Pennsylvanians who voted on that question said “no,’’ but none of the votes counted.

Some of us tried to alert the citizenry. A column I wrote on this slippery ballot question Oct. 23 was the second-most read story on post-gazette.com last year, bouncing around Facebook like a cat video. Nearly 53 percent of 1 million-plus voters in metropolitan Pittsburgh voted “no’’ on this referendum, but it narrowly won statewide with 51 percent of the vote.

Congratulations, septuagenarian judges!

When I suggested to Mr. Lloyd that voters would be wiser and more vigilant henceforth, he wasn’t buying.

“One of the best things we do is forget, and we’ve got two years to forget about this,’’ he said. “Then they can pull the wool over our eyes again.’’

Brian O’Neill: boneill@post-gazette.com or 412-263-1947 or on Twitter @brotheroneill

First Published: January 19, 2017, 7:14 a.m.

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