Upon Further Review

The Supreme Court of Pennsylvania surely receives its fair share of criticism, some of which may be well-deserved and some of which may not be. Although sometimes a justice's reaction to such criticism may seem to lack appropriate judicial demeanor, surely the men and woman serving on that court are well aware that important governmental branches, including the judiciary, are appropriate and necessary recipients of public criticism about not only the substance of their work, but also the manner in which that work is performed.

At times it may seem that no one has anything nice to say about Pennsylvania's highest court or its work product. Today, however, is not one of those days, as the Supreme Court of Pennsylvania surely deserves far more praise than it has received for that court's recent ruling rejecting various constitutional challenges to Pennsylvania's mandatory 70-year-old judicial retirement age.

Earlier this year, in the January installment of this column, I offered my opinions regarding the merits of the judicial retirement challenge lawsuit. As some readers may recall, I concluded my January 15 column, "A Look at the Lawsuit Challenging Pa.'s Judicial Retirement Age," by writing, "I do not anticipate that the lawsuit challenging Pennsylvania's current judicial retirement age is likely to succeed. Rather, any change to the current retirement age will likely need to come through the process of amending Pennsylvania's constitution, which will require the approval of the electorate."

When my January column appeared in print, the judicial retirement litigation had just begun, with one lawsuit pending in federal court and another similar lawsuit pending in state court. Thereafter, an important development that surely caught me by surprise occurred when the attorneys representing the judges challenging Pennsylvania's mandatory retirement age asked the Supreme Court of Pennsylvania to immediately accept their legal challenge for review even before the case had been the subject of an evidentiary hearing and ruling on the merits in the trial court. Relatively soon thereafter, Pennsylvania's highest court granted immediate review, meaning that the one and only ruling that the case might receive on the merits in the Pennsylvania state court system would be from the Supreme Court.

The most fervent critics of Pennsylvania's highest court no doubt greeted the news of immediate high court review with trepidation, as five of the justices then serving on the Supreme Court were facing forced mandatory retirement at the age of 70 before the year 2020, beginning with Chief Justice Ronald D. Castille in 2014. In the eyes of the court's most unrelenting critics, surely the same institution that found a way to preserve pay raises for judges even after the legislature had rolled back similar raises for other state employees (in a ruling that I have previously opined was, in fact, correct) would likewise find a way to allow its current justices to remain in office until voluntary retirement, death, or rejection at the hands of Pennsylvania voters.

This time, however, the court's most fervent critics proved wrong, and resoundingly so. On June 17, the justices serving on the state Supreme Court unanimously rejected under both the Pennsylvania Constitution and the federal Constitution all of the many legal challenges that various of their colleagues serving on the state judiciary had raised against the mandatory judicial retirement age. And, because the ruling was unanimous, all five of the six participating justices, who will be affected by the mandatory retirement age between now and 2020, voted against what could be perceived as their narrow personal self-interests to reject the legal challenge.

To be sure, the court's ruling would not be deserving of extensive praise if the judicial retirement age challenge were clearly without legal merit. But that is not the case. The litigation was brought by two of Pennsylvania's most highly regarded and effective litigators, and the Supreme Court — as the final arbiter of the meaning of the Pennsylvania Constitution — unquestionably had the ability to construe the Pennsylvania Constitution in a way that would have caused the court to strike down the mandatory judicial retirement age.

Not only was there no hint whatsoever of self-interest in the Pennsylvania Supreme Court's unanimous rejection of the mandatory judicial retirement age challenge, but the court's ruling treated the challenge with far more skepticism and resistance than I was expecting after the court's unexpected granting of immediate merits review. In a case in which a court might be accused of self-interest, but a decision from the court cannot be avoided, it is praiseworthy for a court to seem as impartial as possible in its legal analysis.

Although at the time it appeared to be a brilliant strategy for the challengers of Pennsylvania's mandatory judicial retirement age to seek and obtain immediate Pennsylvania Supreme Court review, in retrospect it might have been preferable for the challengers to first have created the best possible factual record in the trial court before pursuing appellate review. Now, on the litigation front, the challengers to Pennsylvania's mandatory judicial retirement age are left only with their federal court lawsuit asserting a federal constitutional challenge, which has always had far less of a likelihood of success.

On the legislative front, however, a change to Pennsylvania's mandatory retirement age could still be achieved, although it is far from certain that any such amendment to the state's constitution would be approved by Pennsylvania's legislators in two successive sessions and then by Pennsylvania voters. Moreover, if the Pennsylvania Constitution were amended to raise or eliminate the mandatory judicial retirement age, that change is unlikely to occur before some of the currently serving justices are forced to retire.

One can only imagine how loud and unrelenting the criticism of Pennsylvania's highest court would have been had that court struck down as unconstitutional Pennsylvania's mandatory retirement age, regardless of the merits of any such ruling. The Pennsylvania Supreme Court's actual ruling rejecting that challenge, however, has been met with too little praise and recognition. Although criticism of public servants surely can serve a beneficial purpose, so too can praise of public servants for a job well done.

In its prompt ruling rejecting on the merits all state and federal constitutional challenges to Pennsylvania's mandatory judicial retirement age, the Supreme Court of Pennsylvania surely surprised that court's harshest critics, by ruling in a manner that appeared to be entirely divorced from any self-interest whatsoever. Although such an outcome was not too much to expect, it surely deserves wider recognition and more praise than it has thus far received. 

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.