A unanimous Pennsylvania Supreme Court has rejected a constitutional challenge to the mandate that judges retire in the year in which they turn 70.

The court also said in dicta that it may be possible for one part of the state constitution to violate the part of the constitution that enshrines inalienable rights such as those to life, liberty and the pursuit of happiness.

Justice Thomas G. Saylor, writing for the majority, said, "There is colorable merit" to the judicial plaintiffs' argument that a constitutional amendment might impinge on inalienable rights that are also recognized in the state constitution.

But, Saylor continued, "we do not believe that the charter's framers regarded an immutable ability to continue in public service as a commissioned judge beyond 70 years of age as being within the scope of the inherent rights of mankind."

The court applied rational-basis scrutiny to the constitutional challenges on equal protection and due process grounds. By applying rational-basis scrutiny, the court upheld its precedent set by Gondelman v. Commonwealth.

The judges had argued 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 lawsuits have been remanded to Commonwealth Court for that intermediate appellate court to dismiss the complaints with prejudice and enter judgment in favor of the commonwealth.

Justice J. Michael Eakin, who wrote a concurrence in which Justices Debra Todd and Seamus P. McCaffery joined, said that the mandatory retirement has another salutary purpose: establishing a "temporal limit on judicial service, regardless of past or current perceptions of one's ability to perform competently beyond any given age."

Limiting the length of service of individual judges does not limit the power of the judicial branch, it only "creates terminal points at which the power will pass to others," Eakin said.

Due to the fact that the mandatory retirement provision survives constitutional review, Saylor said the recourse for the plaintiffs is "an appeal to the General Assembly and the citizenry based on the factual proofs and policy arguments which they consider relevant."

The attorneys representing the judges seeking to strike down the mandatory retirement provision, Robert C. Heim of Dechert and William T. Hangley of Hangley Aronchick Segal Pudlin & Schiller, said they were disappointed that the justices applied rational-basis review.

But they said they were gratified that the court found some credence in the theory that one part of the state constitution could violate the fundamental rights laid out in another part of the constitution.

"I am grateful the court has acknowledged at least the possibility that a constitutional amendment that goes to the heart of sacred human rights can in fact possibly be unconstitutional," Hangley said.

Hangley also said that he continues to think that age discrimination "can be looked at under a very, very strong light and not just under a mere rational-basis test."

The judicial plaintiffs and the plaintiffs' counsel knew that it would be an uphill climb under the Gondelman precedent, Heim said.

One hurdle was that Gondelman states that a procedurally-correct constitutional amendment could not offend the constitution, Heim said. The second was that the rational-basis standard applies to an equal protection claim regarding age, Heim said.

Acknowledging that a constitutional amendment very well might offend the constitution is some consolation, Heim said, because the inherent rights in the constitution protect "the rights of the few against the possible tyranny of the majority."

Saylor said that a constitutional conundrum could arise if Pennsylvanians decide to alter state government in a way that would violate the rights guaranteed in the Declaration of Rights enshrined in Article I of the state constitution. A state constitutional amendment "will only be deemed to violate the constitution that it amends (if at all) where the challenger has shown — clearly, palpably, and plainly — that the amendment is so unreasonable as to be considered 'irrational,'" Saylor said.

Further, "to the extent that there is a confluence between the rights of mankind under the Pennsylvania Constitution and rights accorded under the federal Constitution, such rights might be vindicated over and against inconsistent majoritarian acts at the state level," Saylor said.

The Attorney General's Office, which defended against the lawsuits, declined comment.

Hangley's and Heim's attention may now turn to their clients' lawsuits pending in federal court.

On Monday, the Supreme Court did not address a third mandatory judicial retirement case over which it exercised jurisdiction and in which the plaintiffs have asked for the appointment of a fact-finding master.

Four of the six justices who are currently sitting are set to reach the age of 70 in the next six years: Pennsylvania Chief Justice Ronald D. Castille and Justices Max Baer, Eakin and Saylor.

Saylor acknowledged "a degree of discomfort in presiding over the present matter, as, obviously, members of this court might benefit from a ruling favorable to petitioners," but the justices needed to resolve the matter under the long-standing rule of necessity that judges must sit even if they have an interest in the matter because there is no one else available to hear the controversy.

The plaintiffs were Montgomery County Court of Common Pleas Judge Arthur Tilson in one lawsuit, and Philadelphia Court of Common Pleas Senior Judge Sandra Mazer Moss, who is team leader of the judicial team handling 2011 cases, 2009 cases and cases older than 2009; Philadelphia Court of Common Pleas Judge Joseph D. O'Keefe, administrative judge of the Orphans' Court; and Westmoreland County Court of Common Pleas Judge John J. Driscoll, administrative judge of the juvenile court, in the other lawsuit.

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

(Copies of the 32-page opinion in Driscoll v. Corbett and Tilson v. Corbett, PICS No. 13-1350, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)