- Associated Press - Thursday, June 9, 2016

HARRISBURG, Pa. (AP) - A Pennsylvania court panel heard arguments Thursday over whether the General Assembly acted properly when it invalidated a proposed constitutional amendment on the primary ballot that would allow judges to remain on the bench five years beyond the mandatory retirement age of 70.

Three Democratic state senators brought the challenge in Commonwealth Court, and a three-judge panel will determine what to do about a reworded proposal that’s currently scheduled to be voted on in November.

The three lawmakers argue the General Assembly acted illegally when it passed a resolution shortly before the April 26 primary that resulted in invalidating more than 2 million votes cast on the question.

Their lawyer, John O’Connell, told the court the resolution that forced the delay violated the state constitution by directing the Department of State to act in ways that contradicted state election law.

Judge Dan Pellegrini raised questions about a possible conflict between the wide latitude the General Assembly has under the constitution to control how amendments are considered and the specific rules about resolutions that lawmakers have adopted.

“I think the issue is can the General Assembly pass a law that binds itself?” Pellegrini said.

The November ballot question will say the new mandatory retirement age would be 75, but unlike the primary ballot it will not explain that the existing age limit is 70. People who wanted the change said that the original wording was needlessly confusing and that more people would vote in November. But opponents argued that the reworded proposal was designed so that voters would be less inclined to vote against it.

Voters in April rejected the proposal by an unofficial margin of 51 percent to 49 percent, but those results were not certified by elections officials. The amendment drew nearly 2.4 million votes - almost exactly as many as were cast that day for a separate constitutional amendment ballot initiative to abolish Philadelphia’s traffic court.

A substantial amount of money is at stake for Pennsylvania’s roughly 1,000 justices, judges and district judges. The state has more than 400 judges on county courts of common pleas, for example, a job that typically pays $177,000 plus benefits.

Judge Anne Covey asked about the justification for making changes after the process had been underway for some time. The amendment had already passed both chambers in two successive sessions, and the Department of State had taken out advertisements about the proposal, before the legislature voted for the delay and to rewrite the question.

“The General Assembly can just decide midstream that it’s going to change course?” Covey asked.

She said the public has an interest in knowing clearly what the rules are, and added that there was a financial cost to the state in advertising and now litigation expenses because the General Assembly pulled the question at the last minute.

Matt Haverstick, a lawyer for the Senate Republican leaders who were sued along with Secretary of State Pedro Cortes, said the constitution gives the General Assembly nearly unfettered power to determine the time and manner of constitutional amendments.

Cortes has agreed with the General Assembly’s directive on rewording the measure. Department of State chief counsel Timothy Gates said his agency has provided a draft of the language to the attorney general’s office, leading Pellegrini to speculate about what might happen if the language is rejected. The attorney general’s response is due next week. It’s unclear what will happen if the reworded proposal is rejected.

If the measure does not make it onto the November ballot, supporters will have to wait at least five years to try again.

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