A unanimous Pennsylvania Supreme Court on Monday 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 that enshrines inalienable rights such as those to life, liberty and the pursuit of happiness.
Justice Thomas Saylor wrote in Driscoll v. Corbett and Tilson v. Corbett that “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.”
Justice J. Michael Eakin, who wrote a concurrence joined by Justices Debra Todd and Seamus McCaffery, said 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.
Saylor said the recourse now 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 Heim of Dechert and William 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.
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.” •