                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT


RICHARD A. SPRAGUE, HON. RONALD             :   No. 100 MAP 2016
D. CASTILLE, AND HON. STEPHEN               :
ZAPPALA, SR.,                               :   Appeal from the Order of the
                                            :   Commonwealth Court dated October 5,
                    Appellants              :   2016 at No. 517 MD 2016.
                                            :
                                            :
             v.                             :
                                            :
                                            :
PEDRO A. CORTES, SECRETARY OF               :
THE COMMONWEALTH OF                         :
PENNSYLVANIA, IN HIS OFFICIAL               :
CAPACITY,                                   :
                                            :
                    Appellee                :


                       OPINION IN SUPPORT OF REVERSAL

JUSTICE WECHT                                            DECIDED: October 25, 2016

      This Court recently considered—but deadlocked on—a challenge to the wording

of the November 2016 general election ballot question.      That question asks voters

whether the judicial retirement age mandated in our Constitution should be amended.

Appellants alleged that the ballot question as drafted misleads and deceives voters into

believing that they are imposing a mandatory retirement age for the first time, when in

fact a “yes” vote would raise the existing judicial retirement age from 70 to 75.

Appellants sought to enjoin Appellee Cortés from issuing general election ballots that

contain the deceptively worded question.

      Although this Court assumed plenary jurisdiction over Appellants’ action pursuant

to 42 Pa.C.S. § 726, we did not (indeed, we could not) issue a final decision on the

merits.   As explained in our September 2 order, three Justices favored denying
Appellants’ application for relief and dismissing the complaint with prejudice, while the

other three Justices would have granted Appellants’ application for relief and

permanently enjoined Appellee from placing the challenged language on the ballot.1

Being equally divided, we stood deadlocked on the merits of the dispute.               Our

unanimous per curiam order accordingly noted that “this Court is without authority to

grant relief and the status quo of the matter prior to the filing of the lawsuit is

maintained.” Per Curiam Order, 9/2/2016, at 1.

        In view of our deadlock, Appellants pursued merits adjudication by refiling their

complaint for declaratory and injunctive relief in the Commonwealth Court. That court

dismissed the complaint, holding that the doctrine of res judicata bars Appellants from

litigating their still-unadjudicated constitutional challenge. In defending that dismissal,

the Opinion in Support of Affirmance (“OISA”) misconstrues our failure to resolve

Appellants’ challenge on the merits as an adjudication on the merits. It is nothing of the

kind.   I disagree with the OISA’s view, which attempts incorrectly to deploy our

September 2 deadlock as a bootstrap to affirm the Commonwealth Court,

notwithstanding our utter inability to reach a decision on the merits of the parties’

dispute.

        The doctrine of res judicata, also known as claim preclusion, bars a subsequent

action between the same parties on any claim that was the subject of an earlier

adjudication on the merits. Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995)

(“Any final, valid judgment on the merits by a court of competent jurisdiction precludes

1
       See Sprague v. Cortés, 2016 WL 4595403 (Pa. 2016); Opinion In Support Of
Denying Plaintiffs’ Application For Summary Relief And Granting Defendant’s
Application for Summary Relief (Baer, J.); Opinion in Support of Granting Plaintiffs’
Application For Summary Relief and Denying Defendant’s Application for Summary
Relief (Todd, J.); Opinion in Support of Granting Plaintiffs’ Application For Summary
Relief and Denying Defendant’s Application For Summary Relief (Wecht, J.).



                                   [100 MAP 2016] - 2
any future suit between the parties or their privies on the same cause of action.” (citing

Allen v. McCurry, 449 U.S. 90, 94 (1980)). The dispositive question here is whether our

September 2 order constituted a full and final adjudication of Appellants’ constitutional

challenge. It plainly did not.

       I agree with the Commonwealth Court that the claims at issue and the parties

sub judice are identical to those in the prior litigation. See Sprague v. Cortés, 517 M.D.

2016, slip op. at 6. Nevertheless, res judicata does not bar Appellants from litigating

their claims, because neither this Court nor any other court has finally adjudicated

Appellants’ constitutional challenge to the wording of the November ballot question.

See County of Berks ex rel. Baldwin v. Penna. Labor Relations Bd., 678 A.2d 355, 359

(Pa. 1996) (“It is axiomatic that in order for . . . res judicata to apply, the issue or issues

must have been actually litigated and determined by a valid and final judgment.”).2

       Res judicata expresses a jurisprudential principle designed to avoid never-ending

litigation. It embraces the common sense proposition that a claim finally settled by a


2
       In an attempt to obscure our decisional deadlock and expand our September 2
order into a final adjudication on the merits, the OISA invokes a decision of the United
States Supreme Court that does not support the OISA’s position.
        Specifically, the OISA relies upon Hartman v. Greenhow, 102 U.S. 672 (1880), a
case that does not concern, discuss, or even mention the doctrine of res judicata. See
OISA at 8. Although Hartman involved an equally divided state court, it did not address
any preclusive effect of that deadlock. Instead, the issue in Hartman was whether the
United States Supreme Court had jurisdiction over the appeal, i.e., whether it was a
“final judgment or decree” as defined by the Judiciary Act of 1789. Id. at 674. The
portion of Hartman quoted by the OISA (see OISA at 8) simply explains why the state
court’s deadlock was amenable to the U.S. Supreme Court’s jurisdiction.
       Beyond that, the OISA is left with little but its own conclusory assertion that our
opinion “completely ignores” the “final judgment” in this case (Id. at 10), a “final
judgment,” such as it is, which does not adjudicate the lawsuit’s claims. But just in
case, suggests the OISA, Appellants’ inability to obtain an adjudication here is, after all,
somehow their own fault, the “result of their own tactical litigation plan.” Id. at 11.



                                    [100 MAP 2016] - 3
court of competent jurisdiction remains settled. Res judicata addresses the law’s need

for finality and precludes multiplicity of actions upon identical questions.3 What the

doctrine does not do is encroach upon a litigant’s fundamental right to have his or her

case decided on the merits.

       As the debate over the starkly misleading November ballot language intensifies

in the court of public opinion, today’s reappearing deadlock denies Appellants their right

to a merits decision by the courts of this Commonwealth. As written, the ballot question

is patently deceptive (apparently by design), thereby depriving Pennsylvania voters of

their inalienable right to amend our Constitution as they see fit.         Many share my

concerns, including (it seems) half the voting Justices of this Court, Secretary Cortés

himself (at least at one point),4 and numerous commentators.5

3
        The OISA ignores the obvious fact that not all “final” decisions are preclusive for
res judicata purposes. It bears repeating that res judicata applies only when there has
been a final adjudication on the merits. See Balent, 669 A.2d at 313. For example,
this Court has held that our denial of an application for extraordinary relief is not a final
adjudication on the merits, and “the petitioning party is free to pursue his claim in any
appropriate forum.” County of Berks ex rel. Baldwin, 678 A.2d at 359. Similarly, when
we issue an order explaining that “this Court is without authority to grant relief” to either
party (Per Curiam Order, 9/2/2016, at 1), we have not fully and finally adjudicated the
litigants’ claims on the merits.
         The OISA distinguishes County of Berks ex rel. Baldwin from the instant matter
on the basis that we assumed plenary jurisdiction over Appellants’ action and the
parties “litigated the issues through briefing.” OISA at 10. That is irrelevant. The
critical inquiry is whether our September 2 order was a full and final merits adjudication
of Appellants’ constitutional challenge. The OISA concedes that “the Court issued
multiple opinions on the legal issue presented,” none of which gained the support of a
majority of the Justices. Id. at 11. How this Court managed to adjudicate Appellants’
claim on the merits while simultaneously failing to resolve “the legal issue presented” is
beyond my understanding.
4
       In a prior filing of record, Appellee Cortés himself took the position that failing to
inform voters that the current judicial retirement age is 70, “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 at all.” See Answer of Secretary of the
Commonwealth Pedro A. Cortés, 29 MM 2016. For reasons unknown and undisclosed,
(continuedL)

                                    [100 MAP 2016] - 4
       A recent poll conducted by Franklin & Marshall College reveals, as many had

assumed, that the ballot question’s misleading language places a heavy thumb on the

scales of the amendment process.6 The polling indicates that 64% of registered voters

would vote “yes” to the question that will appear on the November ballot. But support

for the amendment nosedives an astounding nineteen points to 45% when voters are

presented with the question as Secretary Cortés himself originally phrased it, i.e., when

voters are informed that in fact a judicial retirement age does currently exist and that it is

70.7


(Lcontinued)
Secretary Cortés seems to have changed his mind quite completely. Nonetheless, the
OISA has exaggerated the Secretary’s role here by asserting that he “framed” the
misleading ballot question. OISA at 1. He did not frame it; indeed, he initially opposed
it, and then later chose to acquiesce in it. The distinction for artful draftsmanship is
owed not to the Secretary but to the General Assembly. See H.R. 783 2015 (directing
the Secretary to remove the previously drafted ballot question from the April 26, 2016
primary election ballot and to place the language now at issue on the November 8, 2016
general election ballot).
5
        See, e.g., Vote ‘No’ on Question to Raise Judges’ Retirement Age, PHILLY,
http://www.philly.com/philly/opinion/editorials/20161011_DN_editorial__Vote__No__on_
question_to_change_judges__retirement_age.html (“We agree with those who filed the
suits challenging the wording of the ballot question. We believe it is deceitful—and
deliberately so, designed to bamboozle voters[.]”) (last visited Oct. 20, 2016); Howard J.
Bashman, Lessons From Pa.’s Judicial Retirement Age Ballot Fiasco, THE LEGAL
INTELLIGENCER, http://www.thelegalintelligencer.com/id=1202769603634/Lessons-From-
Pa-S-Judicial-Retirement-Age-Ballot-Fiasco/?slreturn=20160920113149
(“Pennsylvania’s legislature has devised a masterful strategy to avoid the defeats
experienced in numerous other states when voters are asked whether existing judicial
mandatory retirement ages should be increased—simply don’t tell voters that the
constitutional amendment will have the effect of increasing the mandatory judicial
retirement age.”) (last visited Oct. 20, 2016).
6
       Berwood A. Yost, For the Nov. 8 Ballot Question About Changing Pa. Judges’
Retirement Age, Words Matter, PENNLIVE, http://www.pennlive.com/opinion/2016
/10/for_the_nov_8_ballot_question.html (last visited Oct. 20, 2016).
7
       The OISA criticizes our reference to polling and commentary. OISA at 11-12.
This critique misconstrues our use of these sources. As the OISA itself recognizes (id.
(continuedL)

                                    [100 MAP 2016] - 5
      It is imperative that Pennsylvania’s judiciary decide whether our Constitution

tolerates a demonstrably misleading ballot question.8 The question has been asked. It

has not been answered.       See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is

emphatically the province and duty of the judicial department to say what the law is.”).




(Lcontinued)
at 2), today’s dispute concerns a question of law: to wit, whether our September 2 per
curiam order precludes Appellants’ right to a merits adjudication on res judicata
grounds. The material facts are undisputed. The litigation before us addresses a
matter of substantial public importance and notoriety. In such circumstances, it is not
only proper but indeed expected that jurists will marshal secondary sources (law review
articles, news reports, commentary, etc.) to persuasive effect. There is no evidentiary
record here which Justices of this Court can either refine or improve. There is a
disagreement on a question of law. In this disagreement, jurists will employ the tools
that are appropriate to the persuasive task at hand.

      We see here a perfect illustration of the importance of context. The
      argument is over the facts but not over the record. The opinions are trying
      to persuade us to put the dispute in one context rather than another. Until
      we do that, we don’t know which law applies; we don’t know how to
      construct analogies or make distinctions. . . . Once we leave the domain
      of proof and enter that of persuasion, there is not a great deal that can be
      said in the abstract. What counts as persuasive depends on both the
      speakers and the listeners; it shifts over time and depends on the
      circumstances. It depends as well on the ability to present the case in a
      compelling manner. The court, like the rest of us, must be persuaded.
PAUL W. KAHN, MAKING     THE   CASE: THE ART   OF THE   JUDICIAL OPINION 146 (Yale Univ.
Press 2016).
8
       The point is not that judges are unfit to serve after age 70. The legacies of
Holmes, Brandeis, and countless other stars that shine in the judicial firmament suggest
otherwise. The point is that our Constitution does not permit the General Assembly to
load the dice, to hoodwink or infantilize the voters by crafting a ballot question
calculated to deceive and mislead. See Opinion in Support of Granting Plaintiffs’
Application For Summary Relief And Denying Defendant’s Application For Summary
Relief (Wecht, J.), at 1-5 (September 2, 2016) (discussing requirements of constitutional
amendment process).



                                   [100 MAP 2016] - 6
      Appellants turned to our courts with one straightforward question: Does the

November ballot, as worded, violate Pennsylvania’s Constitution?      Today’s decision

prevents Appellants from receiving an answer to that question. They are entitled to one.

      I would reverse the Commonwealth Court, and I would remand for further

proceedings.



      Justices Todd and Dougherty join this opinion.




                                  [100 MAP 2016] - 7
