Two more trial judges are challenging the Pennsylvania constitutional provision that mandates members of the judiciary retire at the end of the year in which they turn 70.
Fayette County Court of Common Pleas President Judge Gerald Solomon and Montgomery County Court of Common Pleas Judge Arthur Tilson filed a complaint in Commonwealth Court earlier this week.
Earlier this month, six judges, including some of the most prominent ones sitting in Philadelphia, also filed a lawsuit in the Commonwealth Court challenging the constitutionality of the mandatory retirement provision.
The latest lawsuit directly asks the court to overturn prior precedent that is adverse to their claims.
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. And the U.S. Supreme Court ruled in the 1991 decision of Gregory v. Ashcroft that Missouri’s mandatory retirement requirement for state court judges did not violate the federal Age Discrimination in Employment Act and the 14th Amendment’s equal protection clause.
"Societal and demographic changes demonstrate that this precedent should no longer obtain," the complaint said.
William T. Hangley, one of the lawyers for the two judges from Hangley Aronchick Segal Pudlin & Schiller, said, "We think it’s time for the courts to take a look at the question in light of the way that the world has changed since the last time they looked" at the issue.
Hangley said his firm got involved in representing these two plaintiffs because Dechert has other cases pending before them and Dechert could not represent his clients as it could the other judges in the other lawsuit.
"Times have changed," Hangley said. "People have changed and our appreciation of what people can do has changed. It was only a few years ago, for example, that law firms were slavishly imposing retirement dates on partners in law firms. … It should be noted that if law firms were still imposing those restrictions on lawyers, neither of the lead attorneys of these two cases would be in these cases."
Robert C. Heim of Dechert is the lead attorney for the other judges.
The judges argue in both lawsuits 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."
"There can be no doubt that the United States of America has had a long and unfortunate history of age discrimination," Tilson’s and Solomon’s complaint said. "Many citizens in our country have been subjected to stereotyped distinctions between the young and the old, including that older people are often senile, incompetent, lack productivity, suffer from rigid thinking, are unable to continue to learn, forgetful, and likely to develop dementia."
The plaintiffs in the other lawsuit 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.
The judges also argue in both lawsuits that there are other constitutional provisions or rules in place that allow for the removal of judges, such as for failure to perform the duties of the office.
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.
A spokesman for the Administrative Office of Pennsylvania Courts declined comment.
A spokeswoman for Corbett said in an email: "We have no comment on this pending litigation, but we expect that the Office of the Attorney General will be responding by way of appropriate filings on behalf of the governor and the secretary of the Commonwealth."