Upon Further Review

A handful of Pennsylvania state trial court judges have recently filed lawsuits challenging the constitutionality of the commonwealth’s current judicial retirement age of 70. The suits, which argue that the retirement age should be struck down under both the federal and Pennsylvania constitutions, raise interesting issues and could have a significant impact on the composition of Pennsylvania’s highest court if they were to succeed.

As The Philadelphia Inquirer reported, Pennsylvania’s current judicial retirement age is slated to create five vacancies on the Supreme Court of Pennsylvania between now and 2020. The first member of the court to be affected will be Chief Justice Ronald D. Castille, who will turn 70 in 2014.

In New York state, Pennsylvania’s neighbor to the north, the issue of mandatory judicial retirement age is also the subject of discussion. Due to the recent age-related forced retirement of a very highly regarded judge serving on New York state’s Court of Appeals — that state’s highest court — state legislators in New York have introduced a proposed amendment to the constitution of New York that would extend the mandatory judicial retirement age to 80.

Back in Pennsylvania, commonwealth officials who are opposing the lawsuit to invalidate Pennsylvania’s current retirement age recently removed the suit from state court, where it was filed, to federal court. As a result, the suit is no longer pending in the Commonwealth Court, where it was initiated, but rather is now pending in the U.S. District Court for the Middle District of Pennsylvania.

The complaint that the state trial judges have filed to invalidate Pennsylvania’s judicial retirement age candidly concedes that both the U.S. Supreme Court and the Supreme Court of Pennsylvania have previously rejected constitutional challenges to mandatory state judicial retirement ages. The ruling of the Pennsylvania Supreme Court in Gondelman v. Commonwealth, 554 A.2d 896 (Pa. 1989), was issued nearly 24 years ago, while the ruling of the U.S. Supreme Court in Gregory v. Ashcroft, 501 U.S. 452 (1991), was issued nearly 22 years ago.

Regardless of their age, the rulings in Gondelman and Gregory both appear to remain good law, and thus for the Pennsylvania state court trial judges to succeed in their quest to invalidate Pennsylvania’s judicial retirement age, they will need to convince the pertinent court of last resort (the Supreme Court of Pennsylvania with regard to Pennsylvania’s constitution and the U.S. Supreme Court with regard to the U.S. Constitution) that those earlier decisions should be reconsidered and abandoned. Moreover, because reasonable minds even today can disagree over the desirability of Pennsylvania’s current 70-year-old mandatory judicial retirement age, it does not appear particularly likely that the lawsuits to invalidate that mandatory retirement age will ultimately prove successful.

It is interesting to note that all of the judges who are challenging Pennsylvania’s mandatory retirement age as unconstitutional are trial judges, meaning that none of the challengers is an appellate judge. Without meaning to diminish the effort, attention and intellectual firepower required to be a top-notch appellate judge, I cannot help but observe that presiding over a public trial probably takes more of a physical and emotional toll on a judge than sitting through a multi-judge appellate oral argument and working to prepare and finalize appellate judicial opinions. I don’t mean to suggest that Pennsylvania should adopt different retirement ages for trial versus appellate judges, but I am at least tentatively of the view that appellate judges may have an easier time remaining productive as they age because the job of appellate judging exacts less of a physical and emotional toll than the job of being a trial court judge.

Conversely, because an active trial judge’s job can involve much more exposure to the public and attorneys while conducting trials in open court, perhaps the public is more capable of evaluating the continued competency of older trial court judges than the public would be when it comes to appellate judges. In the federal system, where judges serve with life tenure, sometimes senior status appellate judges continue to serve past the point where they seem fully effective compared to how those judges performed during their primes. Moreover, on some federal appellate courts, senior judges no longer participate in oral arguments but rather only work on deciding cases submitted on the briefs without oral argument. It is impossible to know how much input the judge, as opposed to his or her law clerks, is actually having in the decision-making process in such instances.

Because the general public is largely incapable of evaluating the mental acuity of aging appellate judges, some could argue that it might make sense for Pennsylvania to institute contested judicial re-elections in exchange for abolishing the current mandatory retirement age of 70. Although a retention election under Pennsylvania’s current scheme might not provide voters with enough information to evaluate whether an older judge deserved to be retained in office, if a judge had to address the electorate and fend off a challenge from a possibly younger alternative, then at least the public would have some evidence on which to base its decision.

I personally do not favor the idea of implementing contested retention elections in Pennsylvania, but it may present an appropriate compromise to allow for abolition of Pennsylvania’s mandatory judicial retirement age. Of course, youth is only one consideration for the electorate. Some may recall President Ronald Reagan’s famous line in his second debate in 1984 against the much-younger Walter Mondale, when Reagan (at 73 years of age) quipped that, "I will not make age an issue of this campaign. I am not going to exploit, for political purposes, my opponent’s youth and inexperience." Thereafter, Reagan was re-elected by a very large margin.

For the reasons explained above, 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. It would be interesting to see if Pennsylvania voters have a favorable enough view of Pennsylvania’s judiciary to allow that to happen. •

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