OPINION IN SUPPORT OF REVERSAL

JUSTICE WECHT.

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 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 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

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

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.").

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.