Pennsylvania voters should revisit whether judges must retire in the year they turn 70, but changing mandatory retirement for the judiciary through court rulings is not something left open by case law, an attorney for the Attorney General’s Office argued in Commonwealth Court on Monday.

The attorney was arguing in favor of preliminary objections being granted in one of several lawsuits challenging the state constitutional provision that forces judges to retire in the year that they turn 70.

“It’s something the people of Pennsylvania should revisit but this is not something that the law of Pennsylvania, in our view, has left open,” said J. Bart DeLone, a senior deputy attorney general, during arguments in front of Commonwealth Court Senior Judge James Gardner Colins.

DeLone was referring to the Pennsylvania Supreme Court’s 1989 decision in Gondelman v. Commonwealth, which rejected a challenge to the state constitutional provision mandating judicial retirement.

Colins said that even if the Pennsylvania Supreme Court upholds the prior Gondelman precedent in two other lawsuits that there are some theories that might survive preliminary objections in the case pending in front of him, including that it is problematic that voters are allowed to select jurists for 10-year terms — either in terms of initial election or retention — even though some of those judges are not always able to serve an entire term due to their age.

The Pennsylvania Supreme Court has directed expedited briefing in the other two state-court lawsuits filed by judges challenging Pennsylvania’s mandatory requirement that they retire in the year in which they turn 70. At issue is whether the mandatory retirement provision for judges in the state constitution violates 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 high court is slated to hear arguments in the case May 8.

The lawsuit in front of Colins is pursuing two different angles from the other two lawsuits: one, that the mandatory retirement of judges curtails voters of their right to vote for judicial candidates of their choice, and, two, that it is irrational that, under a 2001 constitutional amendment that allows judges to serve as commissioned judges until the end of the year in which they turn 70, some judges can serve longer than others as commissioned judges depending upon when their birthdays fall on the calendar.

Plaintiffs’ attorney Richard A. Sprague of Sprague & Sprague said that this case involves the opportunity to develop new case law, including the challenge to the 2001 constitutional amendment.

If an evidentiary hearing is allowed in the lawsuit, Sprague said that his co-counsel, Thomas Groshens of Sprague & Sprague, and he would introduce evidence that the natural rights of Pennsylvanians to life, liberty and property predate the state constitution. Sprague also said his co-counsel and he would introduce evidence of the financial burden imposed on senior judges for doing the same work as commissioned judges but for less benefit. Sprague also said his co-counsel and he would introduce evidence that older age does not equate to senility and decrepitude.

While Colins said he knew two of the plaintiff judges in the lawsuit before him, Commonwealth Court Senior Judge Rochelle S. Friedman and Philadelphia Court of Common Pleas Senior Judge Eugene Edward J. Maier, Colins said that he thinks he is the only judge in Pennsylvania who could decide the case and who is not presently affected by the controversy.

Colins said that he expected to rule shortly after the Supreme Court hears its arguments in the case May 8.

Colins also said he expected the Supreme Court to rule expeditiously in the two lawsuits in which it has exercised jurisdiction, but that if he was wrong about the justices’ speed of action, he would not wait for too long to rule on the preliminary objections.

There is plenty of other action in other venues over the mandatory retirement of judges.

There are two federal lawsuits that also are challenging mandatory judicial retirement under the federal Constitution.

There is also a bill pending in the state Senate that, if passed by the General Assembly in two sessions and then adopted by voters, would get rid of the mandatory retirement entirely.

And there is a bill pending in the House of Representatives, if passed by the General Assembly in two sessions and then adopted by voters, that would raise the mandatory retirement age from 70 to 75.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.