Received 9/26/2016 5:15:06 PM Commonwealth Court of Pennsylvania
`
`Filed 9/26/2016 5:15:00 PM Commonwealth Court of Pennsylvania
`517 MD 2016
`
`IN THE COMMONWEALTH COURT OF PENNSYLVANIA
`__________________________________________________________________
`
`No. 517 M.D. 2016
`__________________________________________________________________
`
`RICHARD A. SPRAGUE, HON. RONALD D. CASTILLE AND
`HON. STEPHEN ZAPPALA, SR.,
`
`Petitioners,
`
`v.
`
`PEDRO A. CORTÉS, SECRETARY OF THE COMMONWEALTH,
`IN HIS OFFICIAL CAPACITY,
`
`Respondent.
`__________________________________________________________________
`
`BRIEF OF SECRETARY OF THE COMMONWEALTH PEDRO A.
`CORTÉS IN SUPPORT OF APPLICATION FOR SUMMARY RELIEF
`__________________________________________________________________
`
`Timothy E. Gates, Chief Counsel
`Kathleen M. Kotula, Deputy Chief Counsel
`
`Pennsylvania Department of State
`Office of Chief Counsel
`306 North Office Building
`Harrisburg, PA 17120
`(717) 783-0736
`
`Date: September 26, 3016
`
`Counsel for Secretary of the Commonwealth
`Pedro A. Cortés
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ....................................................................................iv
`
`STATEMENT OF JURISDICTION ........................................................................1
`
`STATEMENT OF THE SCOPE AND STANDARD OF REVIEW........................2
`
`STATEMENT OF THE QUESTIONS INVOLVED................................................3
`
`STATEMENT OF THE CASE..................................................................................5
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`The Mandatory Judicial Retirement Age ...................................................5
`
`The Joint Resolutions and the Original Ballot Question............................5
`
`The First Emergency Application for Extraordinary Relief ......................7
`
`The General Assembly’s Passage of H.R. 783...........................................8
`
`The Litigation in Response to H.R. 783.....................................................9
`
`The 2016 General Primary Election.........................................................10
`
`VII. The Pre-Election Advertisements and the Revised Ballot Question........11
`
`VIII. The 2016 General Election.......................................................................12
`
`IX.
`
`X.
`
`Petitioners’ Initial Complaint and The Supreme Court’s Exercise
`of Extraordinary Jurisdiction (Sprague I and II)......................................13
`
`The Present Challenge to the Wording of the Ballot Question
`(Sprague III) .............................................................................................15
`
`SUMMARY OF ARGUMENT ...............................................................................16
`
`ARGUMENT ...........................................................................................................19
`
`i
`
`

`

`I.
`
`The Supreme Court Has Already Decided this Matter, thus Res
`Judicata and Collateral Estoppel Bar Further Consideration of
`this Complaint. ........................................................................................20
`
`II.
`
`Petitioners Lack Standing to Challenge the Ballot Question...................23
`
`III. Re-litigating the Supreme Court’s September 2, 2016 Per Curium
`Order would violate Article V, Section 2 of the Pennsylvania
`Constitution. ............................................................................................26
`
`IV.
`
`V.
`
`A.
`
`B.
`
`C.
`
`Petitioners’ Complaint is Barred by the “Law of the Case”
`Doctrine. ..................................................................................................27
`
`The Ballot Question Adopted by the Secretary and Approved by
`OAG is Fair, Accurate, and Clearly Apprises Voters of the
`Question or Issue to be Voted On. ..........................................................29
`
`The Secretary Has the Statutory Authority to Formulate the
`Ballot Question....................................................................................29
`
`The Ballot Question Fairly, Accurately, and Clearly Apprises
`Voters of the Question or Issue to be Voted On. ................................31
`
`The Circumstances and Information Have Evolved From the
`Time of the Original Ballot Question. ................................................35
`
`VI.
`
`The Secretary and the General Assembly Are Entitled to Act Free
`of Interference under the Political Question Doctrine. ............................36
`
`VII. Petitioners’ Request for Relief is Barred by the Doctrine of
`Laches.......................................................................................................39
`
`VIII. Petitioners are not Entitled to Injunctive Relief.......................................43
`
`CONCLUSION........................................................................................................46
`
`CERTIFICATE OF WORD COUNT
`
`CERTIFICATE OF SERVICE
`
`ii
`
`

`

`EXHIBITS
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`H.B. 79, 2013 Reg. Sess. (Pa. 2013)
`
`H.B. 79 Legislative History
`
`H.B. 90, 2015 Reg. Sess. (Pa. 2015)
`
`H.B. 90 Legislative History
`
`September 26, 2016, Affidavit of Jonathan Marks, Commissioner of the
`Bureau of Commissions, Elections and Legislation, with Exhibits A-C
`
`Original Ballot Question and Plain English Statement
`
`Public Notice (Advertisement) by the Secretary of the Commonwealth
`for the 2016 Primary Election
`
`H.B. 783, 2015 Reg. Sess. (Pa. 2015)
`
`H.B. 783 Legislative History
`
`10. Compl., Sprague v. Cortés, No. 409 M.D. 2016 (Sprague I)
`
`11.
`
`Pet’rs’ Emergency Appl., Sprague v. Cortés, No. 75 MAP 2016 (Sprague
`II)
`
`12. Order, Sprague II, No. 75 MAP 2016, (Pa. Sept. 2, 2016) (per curiam)
`
`13. Order, Sprague II, (Pa. Sept. 16, 2016) (per curiam)
`
`iii
`
`

`

`TABLE OF AUTHORITIES
`
`Pages(s)
`
`Cases
`
`Askew v. Firestone,
`421 So.2d 151 (Fla. 1982) ....................................................................................34
`
`Bergdoll v. Com. (Bergdoll II),
`858 A.2d 185 (Pa. Cmwlth. 2004)................................................................. 21, 22
`
`Bergdoll v. Kane (Bergdoll I),
`731 A.2d 1261 (Pa. 1999).............................................................................. 21, 22
`
`Carbo v. Redstone Twp.,
`960 A.2d 899 (Pa. Cmwlth. 2008)..........................................................................2
`
`Com. v. Starr,
`664 A.2d 1326 (Pa. 1995).....................................................................................28
`
`Com., Office of Gov'r v. Donahue,
`98 A.3d 1223 (Pa. 2014).......................................................................................24
`
`Costa v. Cortés,
`No. 251 M.D. 2016 (Pa. Cmwlth. Apr. 20, 2016 (Brobson, J.))......................9, 10
`
`Costa v. Cortés,
`143 A.3d 1004 (Pa. Cmwlth. 2016)......................................................................10
`
`Driscoll v. Corbett,
`69 A.3d 197 (Pa. 2013)...........................................................................................5
`
`First Citizens Nat. Bank v. Sherwood,
`879 A.2d 178 (Pa. 2005)................................................................................ 38, 39
`
`In re: Proposed Constitutional Amendment 1, Ballot Question,
`No. 29 MM 2016 (Pa. Mar. 23, 2016)..............................................................8, 40
`
`Myers v. Com.,
`128 A.3d 846 (Pa. Cmwlth. 2015)..........................................................................2
`
`iv
`
`

`

`Oncken v. Ewing,
`8 A.2d 402 (Pa. 1939)...........................................................................................32
`
`Pa. Medical Soc. v. Dep't of Public Welfare,
`39 A.3d 267 (Pa. 2012).........................................................................................23
`
`Pa. State Ass'n of Jury Comm'rs v. Com.,
`78 A.3d 1020 (Pa. 2013)...................................................................................2, 30
`
`Pap's A.M. v. City of Erie,
`719 A.2d 273 (Pa. 1998).......................................................................................38
`
`Safeguard Mut. Ins. Co. v. Williams,
`345 A.2d 664 (Pa. 1975)................................................................................ 20, 23
`
`SEIU Healthcare Pa. v. Com.,
`104 A.3d 495 (Pa. 2014).......................................................................................43
`
`Sernovitz v. Dershaw,
`127 A.3d 783 (Pa. 2015).......................................................................................39
`
`Sprague v. Cortés,
`No. 409 M.D. 2016 (Sprague I) ................................................................... passim
`
`Sprague v. Cortés,
`No. 75 MAP 2016 (Sprague II).................................................................... passim
`
`Sprague v. Cortés,
`No. 517 M.D. 2016 (Sprague III)................................................................. passim
`
`Stander v. Kelley,
`246 A.2d 649 (Pa. 1968)................................................................................ 40, 41
`
`Stander v. Kelley,
`250 A.2d 474 (Pa. 1969)............................................................................... passim
`
`Stilp v. Hafer,
`718 A.2d 290 (Pa. 1998).......................................................................................40
`
`Sweeney v. Tucker,
`375 A.2d 698 (Pa. 1977)................................................................................ 36, 37
`
`v
`
`

`

`Wadhams v. Bd of Cty. Comm'rs,
`567 So.2d 414 (Fla. 1990) ....................................................................................34
`
`Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co.,
`902 A.2d 366 (Pa. 2006).......................................................................................20
`
`Statutes
`
`25 Pa.C.S. § 3508(a)(1)............................................................................................12
`
`25 Pa.C.S. § 3508(b)(1) ...........................................................................................12
`
`42 Pa.C.S. § 761.........................................................................................................1
`
`25 P.S. § 2621(c)............................................................................................... 30, 38
`
`25 P.S. § 2621.1 .......................................................................................... 34, 35, 42
`
`25 P.S. § 2755 ............................................................................................... 7, 30, 38
`
`25 P.S. § 3010(b)............................................................................................... 30, 31
`
`25 P.S. § 3041 ..........................................................................................................35
`
`25 P.S. § 3146.5(a)...................................................................................................12
`
`Constitutional Provisions
`
`Pa. Const. art. V, § 2 ................................................................................... 16, 19, 26
`
`Pa. Const. art. V, § 4 ................................................................................................26
`
`Pa. Const. art. V, § 16(b) (1968)................................................................................5
`
`Pa. Const. art. V, § 16(b) (2001)................................................................................5
`
`Pa. Const. art. XI, § 1....................................................................................... passim
`
`Rules
`
`Pa.R.A.P. 1532(b) ......................................................................................................2
`
`vi
`
`

`

`Other Authorities
`
`H.B. 79, 2013 Reg. Sess. (Pa. 2013)......................................................................5, 6
`
`H.B. 90, 2015 Reg. Sess. (Pa. 2015)..........................................................................6
`
`H.R. 783, 2015 Reg. Sess. (Pa. 2015).............................................................. passim
`
`Is There A "Political Question" Doctrine?,
`85 Yale L.J. 597 (1976)........................................................................................36
`
`Toward Neutral Principles of Constitutional Law,
`73 Harv. L. Rev. 1 (1959).....................................................................................37
`
`vii
`
`

`

`STATEMENT OF JURISDICTION
`
`This Court has jurisdiction over original actions against the Commonwealth
`
`and its agencies pursuant to Section 761 of the Judicial Code, 42 Pa.C.S. § 761.
`
`However, as explained infra, the Pennsylvania Supreme Court’s final order dated
`
`September 2, 2016 in Sprague v. Cortes (Sprague II) has divested this Court of
`
`jurisdiction to grant Petitioners the relief that they seek. See Order at 1, Sprague v.
`
`Cortés (Sprague II), No. 75 MAP 2016, (Pa. Sept. 2, 2016) (per curiam).
`
`1
`
`

`

`STATEMENT OF THE SCOPE AND STANDARD OF REVIEW
`
`This case concerns the wording of the ballot question related to the
`
`mandatory judicial retirement age. This Court’s standard of review is de novo and
`
`the scope of review is plenary. See Pa. State Ass’n of Jury Comm’rs v. Com., 78
`
`A.3d 1020, 1028 (Pa. 2013).
`
`Pennsylvania Rule of Appellate Procedure 1532(b) provides that “[a]t any
`
`time after the filing of a petition for review in an . . . original jurisdiction matter[,]
`
`the court may on application enter judgment if the right of the applicant thereto is
`
`clear.” Pa. R.A.P. 1532(b). In evaluating a request for summary relief, the Court
`
`applies the same standards that apply on summary judgment. See Myers v. Com.,
`
`128 A.3d 846, 849 (Pa. Cmwlth. 2015). “Summary judgment is appropriate when,
`
`after review of the record in the light most favorable to the non-moving party, it is
`
`determined that no genuine issue of material fact exists and the moving party is
`
`entitled to judgment as a matter of law.” Carbo v. Redstone Twp., 960 A.2d 899,
`
`901 n.4 (Pa. Cmwlth. 2008) (citation omitted).
`
`2
`
`

`

`STATEMENT OF THE QUESTIONS INVOLVED
`
`I.
`
`Whether Petitioners’ request for relief is completely barred by the
`
`doctrines of res judicata and collateral estoppel?
`
`Suggested answer: Yes.
`
`II. Whether Petitioners lack standing to challenge the wording of the ballot
`
`question?
`
`Suggested answer: Yes.
`
`III. Whether Petitioners’ request for relief violates Article V, Section 2 of the
`
`Pennsylvania Constitution?
`
`Suggested answer: Yes.
`
`IV. Whether Petitioners’ request for relief is barred by the “law of the case”
`
`doctrine?
`
`Suggested answer: Yes.
`
`V. Whether Petitioners fail to assert a justiciable controversy where the
`
`Secretary of the Commonwealth drafted, and the Office of Attorney General
`
`approved, a ballot question that is fair, accurate, and clearly apprises voters of the
`
`question or issue to be voted on, in compliance with the Pennsylvania Constitution
`
`and the Election Code, and consistent with the ballot question directed by the
`
`General Assembly?
`
`Suggested answer: Yes.
`
`3
`
`

`

`VI. Whether this Court should decline to exercise its plenary powers to alter
`
`language in the proposed ballot question, and thereby afford deference to the
`
`Secretary of the Commonwealth and the General Assembly, who are not acting
`
`ultra vires, but are acting within the powers allocated to them by the Pennsylvania
`
`Constitution?
`
`Suggested answer: Yes.
`
`VII. Whether Petitioners’ request for relief should be denied because of the
`
`doctrine of laches?
`
`Suggested answer: Yes.
`
`VIII. Whether Petitioners are entitled to injunctive relief?
`
`Suggested Answer: No.
`
`4
`
`

`

`STATEMENT OF THE CASE
`
`I.
`
`The Mandatory Judicial Retirement Age
`
`In its current form, Article V, Section 16(b) of the Pennsylvania Constitution
`
`requires Pennsylvania jurists to retire on the last day of the calendar year in which
`
`the jurist turns 70. See Pa. Const. art. V, § 16(b). As originally adopted in 1968,
`
`however, Article V, Section 16(b) of the Pennsylvania Constitution required jurists
`
`to retire immediately “upon attaining the age of [70] years.” Pa. Const. art. V, §
`
`16(b) (1968). The electorate voted to amend the language in 2001 to “specify [the
`
`existing requirement] that retirement must occur on December 31st of the year the
`
`jurist turns 70.” Driscoll v. Corbett, 69 A.3d 197, 200 (Pa. 2013) (citing Pa. Const.
`
`art. V, § 16(b) (2001)); see also Ex. A to Pet’rs’ Br. at p. 53.
`
`II.
`
`The Joint Resolutions and the Original Ballot Question
`
`On October 22, 2013, the Pennsylvania General Assembly, acting pursuant
`
`to its authority in Article XI of the Pennsylvania Constitution, passed H.B. 79, a
`
`joint resolution seeking to amend Article V, Section 16(b) of the Pennsylvania
`
`Constitution. See Ex. 1 (H.B. 79, 2013 Reg. Sess. (Pa. 2013)) & Ex. 2 (H.B. 79
`
`Legislative History). The amendment proposed raising the mandatory retirement
`
`age of jurists to age 75. See Ex. 1. In accordance with the requirements of Article
`
`XI, Section 1 of
`
`the Pennsylvania Constitution,
`
`the Secretary of
`
`the
`
`Commonwealth published notice of the proposed constitutional amendment in
`
`5
`
`

`

`newspapers throughout the Commonwealth in the months before the General
`
`Election on November 4, 2014. Ex. 5 (Mark Aff.) at ¶ 6, p. 1.
`
`A little more than two years later, on November 17, 2015, the next
`
`consecutive session of the General Assembly passed H.B. 90, a joint resolution
`
`identical to the preceding legislative session’s H.B. 79. See Ex. 3 (H.B. 90, 2015
`
`Reg. Sess. (Pa. 2015)) & Ex. 4 (H.B. 90 Legislative History). Pursuant to the
`
`Secretary’s duties imposed on him by the Election Code, the Secretary and the
`
`Department of State drafted, and the Office of Attorney General (“OAG”)
`
`approved, the language for the ballot question. Ex. 5 (Marks Aff.) at ¶ 8, p. 2. The
`
`ballot question as originally drafted stated as follows:
`
`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?
`
`See Ex. 6 (Ballot Question) & Ex. 7 (Advertisement). OAG composed a “Plain
`
`English Statement” analyzing the purpose, limitations and effects of the proposed
`
`amendment. See Ex. 6 (Plain English Statement) & Ex. 7. In addition to the text
`
`of the proposed amendment, the Secretary published notice of the ballot question
`
`and the Plain English Statement in newspapers across the Commonwealth in
`
`January, February and March 2016. Ex. 5 (Mark Aff.) at ¶ 10, p. 2. This proposed
`
`6
`
`

`

`amendment on judicial retirement age was designated Proposed Constitutional
`
`Amendment 1. See Ex. 7. Pursuant to the explicit text in the authorizing joint
`
`resolutions, the ballot question was scheduled to be placed on the ballot for the
`
`primary election on April 26, 2016.1 See Ex. 1 & Ex. 3.
`
`III. The First Emergency Application for Extraordinary Relief
`
`Certain members of the Republican leadership in the State Senate filed an
`
`Emergency Application for Relief in the Pennsylvania Supreme Court on March 6,
`
`2016, objecting to the ballot question drafted by the Secretary and seeking a
`
`modification. See Ex. G to Pet’rs’ Compl. On March 22, 2016, the parties to that
`
`action2 filed a Joint Application for Emergency Relief and asked the Supreme
`
`Court to approve a stipulated resolution that would have, inter alia, moved the
`
`ballot question to the 2016 general election in November with revised language.3
`
`1 Specifically, the joint resolutions provided that the Secretary “shall submit this proposed
`constitutional amendment to the qualified electors of this Commonwealth at the first primary,
`general or municipal election which meets the requirements of and is in conformance with
`section 1 of Article XI of the Constitutional of Pennsylvania and which occurs at least three
`months after the proposed constitutional amendment is passed by the General Assembly.” See
`Ex. 1 & Ex. 3 (emphasis added). Section 605 of the Election Code, 25 P.S. § 2755, requires
`proposed constitutional amendments to be submitted to the electorate on a November ballot.
`However, that section of the Election Code begins with qualifying language that states “[u]nless
`the General Assembly shall prescribe otherwise with respect to . . . the manner and time of
`submitting to the qualified electors of the State any proposed amendment or amendments to the
`Constitution . . . .” Id.
`2 As of that date, the parties to the action were the Pennsylvania Senate Majority Caucus, the
`President Pro Tempore and the Majority Leader of the Pennsylvania Senate, the Secretary, the
`Pennsylvania Department of State, and the OAG.
`3 The Secretary and the Department of State agreed to participate in the Joint Application for
`Emergency Relief in order to bring certainty to a process that had been rendered uncertain by the
`
`7
`
`

`

`See Ex. I to Pet’rs’ Compl. On March 23, 2016, the Supreme Court denied both
`
`the Joint Application for Emergency Relief and the Emergency Application for
`
`Extraordinary Relief. See Order, In re: Proposed Constitutional Amendment 1,
`
`Ballot Question, No. 29 MM 2016 (Pa. Mar. 23, 2016) (per curiam).
`
`IV. The General Assembly’s Passage of H.R. 783
`
`On April 6, 2016, the House of Representatives passed H.R. 783, labeled a
`
`concurrent resolution. See Ex. 9 (H.R. 783 Legislative History). Among other
`
`things, H.R. 783 directed the Secretary to remove the ballot question from the
`
`primary ballot on April 26, 2016, and place a revised version of the ballot question
`
`on the general election ballot on November 8, 2016, as follows:
`
`Shall the Pennsylvania Constitution be amended to require that
`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?
`
`Ex. 8 (H.R. 783, 2015 Reg. Sess. (Pa. 2015)).
`
`The Senate passed H.R. 783 on April 11, 2016. See Ex. 9. H.R. 783 does
`
`not by its terms call for presentment to the Governor for approval or veto (rather, it
`
`calls for transmission directly to the Secretary); it was not, in fact, presented to the
`
`Governor. See Ex. 8 & Ex. 9.
`
`Application for Extraordinary Relief. Had the Supreme Court approved the stipulated resolution,
`the ballot question would have been moved to the 2016 general election ballot, with new
`language, under the auspices of a court order and in time for the counties to remove the question
`from the April 2016 ballot. As noted in text, the Supreme Court denied the Joint Application.
`
`8
`
`

`

`V.
`
`The Litigation in Response to H.R. 783
`
`On April 14, 2016, less than two weeks prior to the then-pending primary
`
`election on April 26, 2016, the Honorable Jay Costa, the Honorable Daylin Leach,
`
`and the Honorable Christine M. Tartaglione (“Costa Petitioners”), duly-elected
`
`members of the Pennsylvania Senate, filed a Petition for Review in the Nature of a
`
`Complaint for Declaratory and Equitable Relief, which alleged violations of the
`
`state constitution and statutes, and the anticipated violation of certain absentee
`
`voters’ rights to vote, and sought injunctive relief. See Pet., Costa v. Cortés, No.
`
`251 M.D. 2016 (Pa. Cmwlth. Apr. 14, 2016). H.R. 783 was the basis for the Costa
`
`Petitioners’ complaints. The Costa Petitioners also filed an application for special
`
`relief requesting a preliminarily injunction to enjoin the Secretary from
`
`implementing H.R. 783. See Appl., Costa, No. 251 M.D. 2016 (Pa. Cmwlth. Apr.
`
`15, 2016).
`
`This Court held a hearing on the Costa Petitioners’ injunctive request on
`
`April 19, 2016, and issued a decision the following day, on April 20, 2016. See
`
`Slip Op., Costa, No. 251 M.D. 2016 (Pa. Cmwlth. Apr. 20, 2016 (Brobson, J.)) (as
`
`amended).4 The Honorable P. Kevin Brobson of the this Court denied the Costa
`
`4 On April 28, 2016, Judge Brobson amended the Memorandum Opinion, but he did not alter the
`Order of April 20, 2016. On July 7, 2016, this Court issued an Order re-designating the
`Memorandum Opinion as a published Opinion. See Order, Costa, No. 251 M.D. 2016 (Pa.
`Cmwlth. July 7, 2016) (per curiam).
`
`9
`
`

`

`Petitioners’ Application for Summary Relief in the Nature of a Preliminary
`
`Injunction as part of his April 20, 2016 ruling. Id.
`
`Thereafter, the parties in the case briefed the legal issues, and a panel of this
`
`Court heard oral argument on the cross-applications for summary relief on June 9,
`
`2016.
`
`On July 6, 2016, this Court issued an Order and Opinion granting the Senate
`
`Republicans’ application for summary relief, and denying Costa Petitioners’
`
`application. The court held that H.R. 783 is a valid exercise of the General
`
`Assembly’s “time” and “manner” powers under Article XI, Section 1 of the
`
`Pennsylvania Constitution. See Costa v. Cortés, 143 A.3d 1004, 1013 (Pa.
`
`Cmwlth. 2016).
`
`VI. The 2016 General Primary Election
`
`The General Primary election was held on April 26, 2016.
`
`In conformity
`
`with Judge Brobson’s Order of April 20, 2016, the Secretary removed the ballot
`
`question from the official ballot certification, and efforts were made at the polling
`
`places to inform voters of its status. Ex. 5 (Marks Aff.) at ¶ 12, p. 2. However,
`
`Judge Brobson’s ruling came just six days before the primary election on April 26,
`
`2016, and the county boards of election could not physically remove the ballot
`
`question from the ballot. Pet’rs’ Compl. at ¶ 54. Accordingly, voters were
`
`presented with ballot materials containing the original language for the ballot
`
`10
`
`

`

`question. Sec’y’s Answer at ¶ 55. Pursuant to H.R. 783, which Judge Brobson
`
`declined to enjoin, the Secretary did not conduct an official tabulation,
`
`computation, or canvass of the votes for the ballot question. Ex. 5 (Marks Aff.) at
`
`¶ 13, p. 2.
`
`VII. The Pre-Election Advertisements and the Revised Ballot Question
`
`For the ballot question to proceed on the 2016 general election ballot, the
`
`first round of advertisements had to be published no later than August 8, 2016. Ex.
`
`5 (Marks Aff.) at ¶ 19, p. 3.
`
`In order to meet that deadline, the Secretary had to
`
`reserve advertising space
`
`in newspapers, and provide
`
`the
`
`text of
`
`the
`
`advertisements, including the language of the ballot question, no later than July 27,
`
`2016. Ex. 5 (Marks Aff.) at ¶ 20, p. 3. Thus, in late May, given uncertainty
`
`concerning both the nature and timing of future court rulings in the Costa case, and
`
`in order to resolve that uncertainty in time for the pre-election advertising that had
`
`to be arranged in July 2016 and begin in August 2016, the Secretary decided to
`
`voluntarily amend his wording of the ballot question to conform to the text of the
`
`ballot question contained in H.R. 783. Ex. 5 (Marks Aff.) at ¶ 14, p. 2. The
`
`Secretary submitted the revised ballot question to OAG for approval. Ex. 5 (Marks
`
`Aff.) at ¶ 14, p. 2. On June 14, 2016, Solicitor General Bruce L. Castor, Jr., on
`
`behalf of OAG, approved the form of the ballot question, as set forth in H.R. 783,
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`and provided a copy of the Plain English Statement, which he noted was the same
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`as the original Plain English Statement. Ex. 5 (Marks Aff.) at ¶ 16, p. 2.
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`The Secretary published the first round of advertisements in newspapers
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`between August 2, 2016 and August 6, 2016, and the second round of
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`advertisements between September 2, 2016 and September 8, 2016. Ex. 5 (Marks
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`Aff.) at ¶¶ 21-22, p. 3. The third round of advertisements must be accomplished no
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`later than October 8, 2016. See Pa. Const. art. XI, § 1. The final round of
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`advertisements are scheduled to run between October 1, 2016 and October 8, 2016.
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`Ex. 5 (Marks Aff.) at ¶ 23, p. 3. The deadline to provide or alter the text of the
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`October advertisement is September 26, 2016. Ex. 5 (Marks Aff.) at ¶ 23, p. 3.
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`VIII. The 2016 General Election
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`The ballot question will be submitted to the electorate on the ballot for the
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`general election on November 8, 2016. See Ex. 5 (Marks Aff.) at ¶ 25, p. 3 & Ex.
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`8. The county boards of election were required to transmit absentee ballots and
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`balloting materials to all covered uniformed-service and overseas voters in
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`extremely remote and isolated areas who submitted an application no later than
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`August 30, 2016, and to all other covered uniformed-service and overseas voters
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`who submitted an application no later than September 23, 2016. See 25 P.S. §
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`3146.5(a) and 25 Pa.C.S. §§ 3508(a)(1) & (b)(1).
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`A total of 13,209 military-overseas absentee ballots have been transmitted
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`thus far to uniformed-service and overseas voters, and 149 of those voted ballots
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`have been returned. Ex. 5 (Marks Aff.) at ¶¶ 27-28, p. 3. The military-overseas
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`ballots contain the ballot question in its current form. Ex. 5 (Marks Aff.) at ¶ 29, p.
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`4.
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`In terms of civilian absentee ballots, provisional ballots and Election Day
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`ballots, the county boards of election require at least five or six weeks, if not more,
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`prior to Election Day to finalize civilian absentee and Election Day balloting
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`materials to ensure adequate time to prepare, print and proofread the ballots, and to
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`conduct pre-election testing of voting equipment. Ex. 5 (Marks Aff.) at ¶ 30, p. 4.
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`The majority of the county boards of elections will finalize their civilian absentee
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`and Election Day balloting materials during the week of September 26-30, 2016 or
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`the week of October 3-7, 2016. Ex. 5 (Marks Aff.) at ¶ 31, p. 4.
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`IX. Petitioners’ Initial Complaint and The Supreme Court’s Exercise of
`Extraordinary Jurisdiction (Sprague I and II)
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`On July 21, 2016, Petitioners filed a Complaint for Declaratory and
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`Injunctive Relief in this Court’s original jurisdiction captioned Sprague v. Cortés,
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`No. 409 M.D. 2016 (Sprague I). See Ex. 10 (Sprague I Compl.). Petitioners
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`sought one count of declaratory and injunctive relief on the basis that the ballot
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`question relating to the judicial retirement age, as required by H.R. 783, and
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`adopted by the Secretary, is unlawfully misleading because it advises voters only
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`of the proposed amended constitutional language and does not inform voters that
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`the existing mandatory judicial retirement age is 70. Ex. 10. Petitioners requested
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`a declaration that the ballot question violates Pennsylvania law, and sought to
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`enjoin the Secretary from presenting the question on the 2016 general election
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`ballot. Ex. 10.
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`On the same day they filed their complaint, Petitioners also filed an
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`Emergency Application for Extraordinary Relief, asking the Supreme Court to
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`assume plenary jurisdiction over the matter. See Ex. 11 (Sprague II Pet’rs’
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`Emergency Appl.). The Secretary filed an answer to the Emergency Application,
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`and agreed that the Supreme Court should exercise extraordinary jurisdiction so as
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`to finally put the matter to rest. See Ex. P to Pet’rs’ Compl. The Secretary
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`disagreed with the merits of Petitioners’ claims and requested relief. See Ex. P to
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`Pet’rs’ Compl. The Supreme Court granted Petitioners’ Emergency Application
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`for Extraordinary Relief on July 27, 2016. See Ex. Q to Pet’rs’ Compl. Because
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`there were no material issues of fact in dispute, both parties filed applications for
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`summary relief. See Ex. S & Ex. W to Pet’rs’ Compl.
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`Thereafter, on September 2, 2016, the Supreme Court entered a final
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`unanimous Per Curiam order stating that because the Court was evenly divided, it
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`lacked authority to grant Petitioners’ challenge to the ballot question, and held that
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`“the status quo of the matter prior to the filing of the lawsuit is maintained.”
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`Order at 1, Sprague v. Cortés (Sprague II), No. 75 MAP 2016, (Pa. Sept. 2, 2016)
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`(per curiam), attached as Ex. 12. Petitioners filed a motion for reconsideration of
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`the Per Curiam order and requested the Supreme Court to remand the matter to
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`this Court. See Ex. CC to Pet’rs’ Compl. The Supreme Court, however, by Per
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`Curiam order dated September 16, 2016, denied Petitioners’ application for
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`reconsideration, and concluded that “there is no longer an action pending in the
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`lower court that requires further adjudication.” Order at 4, Sprague II, (Pa. Sept.
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`16, 2016) (per curiam), attached as Ex. 13.
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`X.
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`The Present Challenge to the Wording of the Ballot Question
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`Despite their failed request for remand, Petitioners, in an apparent attempt
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`to circumvent the constitutional order of judicial hierarchy, have now filed a new
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`action in this Court captioned Sprague v. Cortés, No. 517 M.D. 2016 (Sprague
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`III). The new action filed on September 19, 2016, is brought by the exact same
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`petitioners as in Sprague I and Sprague II, raises