Six judges, including some of the most prominent ones sitting in Philadelphia, filed a lawsuit Wednesday in the Commonwealth Court challenging the constitutionality of the requirement that all Pennsylvania justices and judges retire at the end of the year in which they turn 70.
The plaintiffs include: Philadelphia Court of Common Pleas Judge John W. Herron, administrative judge of the trial division, which includes civil and criminal cases; Philadelphia Court of Common Pleas Judge Sandra Mazer Moss, who until earlier this fall was the coordinating judge of mass torts and other cases in the Complex Litigation Center; Philadelphia Court of Common Pleas Senior Judge Benjamin Lerner, who oversees the homicide program; Philadelphia Court of Common Pleas Judge Joseph D. O’Keefe, administrative judge of the Orphans’ Court; Westmoreland County Court of Common Pleas Judge John J. Driscoll, administrative judge of the juvenile court; and Northampton County Court of Common Pleas Judge Leonard N. Zito.
Herron and O’Keefe will be forced to retire at the start of 2015; Moss and Zito will be forced to retire at the start of next year; Lerner was forced to retire at the start of this year; and Zito will be forced to retire at the start of 2014, according to the complaint.
The judges argue that the state constitutional mandate that all Pennsylvania judges and justices retire at the end of the calendar year in which they turn 70 violates their federal constitutional rights to equal protection and due process and their state constitutional rights for “enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”
The issue could have an impact on the future of the state Supreme Court because four of the six justices who are currently sitting will reach the age of 70 in the next six years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, J. Michael Eakin and Thomas G. Saylor.
The issue also is being portrayed as one of civil rights for older Americans because “age, like race, sex, and national origin, is an immutable characteristic,” according to the complaint.
While Lerner said in an interview he is grateful Philadelphia Court of Common Pleas President Judge Pamela Pryor Dembe and Castille, the liaison justice to the FJD, have allowed him to continue to oversee homicide cases and cases in which juveniles charged as adults seek to have their cases returned to the juvenile system even though he has reached senior status, Lerner said he agreed to be a plaintiff in the case because “it’s become clearer and clearer that people don’t suddenly lose their ability to perform a job because they reach a certain age. … Advances in medicine and an increased knowledge about the aging process demonstrate more and more clearly that there really isn’t any legitimate, rational basis for saying to a judge, ‘Well you turned 70 this year and at the end of this year, even though you were fairly recently retained by the citizens of your judicial district, that you can’t sit any longer except as a senior judge and except as you are given permission to do so by the judicial hierarchy.’”
Robert C. Heim of Dechert is representing the plaintiffs. Alexander R. Bilus, David S. Caroline and William T. McEnroe of Dechert also signed the lawsuit.
The lawsuit “could be a big civil rights issue” since the number of older Americans is increasing drastically, Heim said.
The judges argue in their lawsuit that the mandatory retirement “perpetuates a stereotype and establishes a presumption that has no basis in fact,” and that there is no rational basis to “have an arbitrary step-down provision,” Heim said.
Even though the number of older Americans has increased, “the incidence of cognitive decline has decreased remarkably in recent years” and “it is untenable to rely on stereotypes relating to aging to force Pennsylvania’s judges to retire against their will,” the complaint argues.
Judges are the only state employees who are required to retire at a certain age, and private employers also are not allowed to require their employees to retire because they reach a certain age, Heim said.
The judges argue that they have a fundamental right to work, and that equal protection requires that, if there is a compelling state interest to abridge that right to work, that it is tailored in the narrowest possible way, Heim said. He pointed out that the complaint states that there is another constitutional provision that allows for the removal of judges, such as for failure to perform the duties of the office.
Even if a right to work is not a fundamental right, the judges argue that older Americans should be treated as a class like gender that receives a higher level of constitutional scrutiny, Heim said.
Heim said he would argue against a public-policy argument that age limits for judges ensures that younger blood comes into the judiciary because “younger blood isn’t better blood. Good judging is a function of lots of things: intellectual ability, common-sense experience.”
Heim said that he is not concerned about the public perceiving that the defendants will not have a fair shake when it’ll be judges deciding the claims of their cohorts. Judges may have very different opinions about the merits of making members of the judiciary retire, Heim said.
In any case, the issue in the case is the application of constitutional law to the claims, and Pennsylvania courts must decide the case as a matter of necessity because there is no other court to hear the case, Heim said.
“I expect a judge of the Commonwealth or the Supreme Court will look at this in terms of, ‘How does it square with the law?’” Heim said. “That’s what you expect good judges to do.”
Named as defendants are Governor Tom Corbett, Pennsylvania Secretary of State Carol T. Aichele, state Treasurer Rob McCord and state Court Administrator Zygmont A. Pines.
Corbett was named because he “has the final authority to enforce the mandatory retirement provision”; Aichele was named because she is responsible for certifying to county boards of election the judgeships for which candidates are to be nominated; McCord was named because he “will not pay a salary for judicial service to a justice or judge who attains 70 years of age”; and Pines was named, among other reasons, because Pines authorizes “McCord to discontinue the salary of any justice or judge who attains 70 years of age and thereby causes justices and judges to be barred and removed from commonwealth payroll pursuant to the mandatory retirement provision.”
A spokesman for the Administrative Office of Pennsylvania Courts declined comment.
Corbett’s press office declined comment because counsel at the Office of General Counsel and at the Department of State had not yet seen the complaint.
Thirty-three other states as well as the District of Columbia have mandatory retirement for at least some members of their judiciaries, and the mandatory retirement ages range from 70 to 90, Lynn Marks of Pennsylvanians for Modern Courts said.
The lawsuit filed Wednesday is not the first time that Pennsylvania judges have challenged the mandatory retirement constitutional clause. For example, the state Supreme Court dismissed a holding in the 1989 decision of Gondelman v. Commonwealth that the state constitution could violate the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.