Editor’s note: The author represents six of the 11 judges who have sued over the mandatory retirement provision for judges in the Pennsylvania Constitution.
A recent opinion piece by Northampton County District Attorney John M. Morganelli published Tuesday in The Legal, " Pa.’s Constitutional Crisis: Will Judicial Self-Interest Trump the Constitution?" about the case before the Pennsylvania Supreme Court challenging the mandatory retirement provision for judges asked, rhetorically: "What happens when judicial self-interest collides with the Constitution?" Morganelli then proceeded to pronounce that "Pennsylvania may be on the precipice of a constitutional crisis" and suggested that the 11 judges who brought these three lawsuits must somehow be engaged in some grand conspiracy because there is precedent from some 20-plus years ago upholding the constitutional provision now being challenged. Morganelli should know better.
The idea that what Morganelli refers to as "clear precedent" should never be challenged would set us back not quite to the dark ages but certainly a long way in terms of our social policy. The case of Brown v. Board of Education,which was a 9-0 decision of the U.S. Supreme Court, overruled Plessy v. Ferguson in deciding that "separate but equal" was not equal and that state-enforced school discrimination violates the U.S. Constitution. The same court in Loving v. Virginia overruled prior precedent that permitted a ban on interracial marriage, the anti-sodomy laws were struck down in Lawrence v. Texas as violating the U.S. Constitution, also overturning outdated precedent, and the list goes on and on. Why, then, should it "raise eyebrows" when some very fine jurists complain that a Pennsylvania constitutional provision discriminates against them and denies them the opportunity to continue to do what they do well and what they love — to be jurists beyond the age of 70.
Morganelli also argues that the "rule of necessity" should not apply here because there are companion cases in front of a federal court relating to claims under the federal Constitution and a federal judge can hear this claim as well. But once again, he ignores the obvious: that the court that has the final say on the meaning of the Pennsylvania Constitution is the Pennsylvania Supreme Court — not a federal court. The rule of necessity dates back centuries and, as the U.S. Supreme Court put it, it represents "an absolute duty of judges to hear and decide cases within their jurisdiction." In 1870, the Pennsylvania Supreme Court explained that "the true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest — where no provision is made for calling another in — or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be."
There is a suggestion in the Morganelli piece that the public should be concerned that the justices will not carefully consider the law and instead will vote to advance their own personal interests. He alludes to the fact that a number of the justices are within shooting range of mandatory retirement at 70 in the "next few years." But most trial lawyers know that the real concern is the opposite. In Pennsylvania, justices are elected and yet we expect them to do their duty and follow the law despite what the public might think. Lawyers who are arguing for a principle of law that might be unpopular have to worry that judges will tilt toward the popular side and vote in a case contrary to their personal interests in order to assuage any concern that folks like Morganelli may have. One can make arguments on either side of the issue but it is a disservice to argue that the Supreme Court’s action in taking this case somehow tarnishes the reputation of the court. It does not.
It seems that Morganelli may, indeed, favor removing the mandatory retirement provision but thinks it should happen through a constitutional amendment and not by court action. As a district attorney, former candidate for attorney general and maybe a candidate for political office again, Morganelli’s views are worthy of respect and certainly those of us who are counsel for the judges will be very supportive of any constitutional amendment in this regard. However, our clients are not willing to wait for the uncertain political prospects of a constitutional amendment and the two-to-four-year wait that would ensue. They will all be retired before any such amendment, even if one were to take place, becomes law.
As Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr. — who is not a plaintiff in either action — said recently, "There are serious bedrock fundamental issues" as to whether not only federal law, but the Declaration of Rights that forms the basis of the state constitution, are being breached by the mandatory judicial retirement rule. Clark said, "In our nation we do not permit generalizations to be the yardstick by which we measure the merits of any man or woman." Amen to that.
Robert C. Heim is a partner with Dechert in the firm’s Philadelphia office. He is a former chancellor of the Philadelphia Bar Association, former president of the National Conference of Bar Presidents and is currently the Third Circuit representative on the American Bar Association’s Standing Committee on the Federal Judiciary.