Even though the Pennsylvania Constitution requires judges to retire in the year that they turn 70, the provision violates judges’ fundamental rights, an attorney argued before the state Supreme Court on Wednesday.

Robert C. Heim, one of the attorneys representing judges seeking to strike down the mandatory retirement provision, told the high court that mandatory judicial retirement is an example of the will of the majority unconstitutionally infringing the rights of a minority.

Heim also argued that even if a majority of Pennsylvania voters adopts a constitutional provision, it could still be invalid if it violates another part of the constitution.

“Even though it’s a majoritarian government, it also protects the few against the many,” said Heim, of Dechert.

No court, including those in Pennsylvania, has ever held that one provision of a constitution could violate another provision of the constitution, argued J. Bart DeLone, a senior deputy attorney general.

“Such a holding would upend the most basic principles of democracy,” DeLone said.

The court directed expedited briefing on whether the mandatory retirement provision for judges in the state constitution violates their state constitutional rights under Article I for “enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

The issue could have an impact on the future of the Supreme Court because 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, J. Michael Eakin and Thomas G. Saylor.

The plaintiffs are seeking to overturn precedent including Gondelman v. Commonwealth, in which challenges to mandatory retirement for judges were rejected.

Ken Gormley, dean of Duquesne University School of Law, wrote in a treatise that Gondelman was wrongly decided and that a provision of the state constitution may itself be unconstitutional because of a conflict with another provision, Heim said.

When Heim said that voters could change some rights except for the pre-existing fundamental rights enshrined in Article I, Eakin said that would mean there were constitutional rights that are really meant but there are constitutional rights that are not really meant. But Heim countered that Article I, Section 25, which states that power is reserved to the people, means that rights are forever inviolate against action by both the government and the action of the people.

However, some of the justices questioned taking away the decision from Pennsylvanians on how long judges should serve.

“That’s a pretty dramatic step from the court to take that away from the people,” Justice Debra Todd said.

Separately, Justice Seamus P. McCaffery said that because all power emanates from the people under the state constitution that Heim asking six justices to overrule “the people” disconcerts him.

But Heim argued that “this court is the final arbiter” if what the voters want violates indefeasible rights. The judicial branch plays that role in order to protect the minority, he said.

Castille, however, said that all power is not with the people, taking as an example a situation in which a majority declared that blacks are second-class citizens.

But DeLone said that such a constitutional provision would violate the federal Constitution, not the state constitution.

If the two constitutional provisions are found to be “at war with each other,” as Castille put it, DeLone said that the specific provision of mandatory retirement for judges should prevail over the general provision of indefeasible rights.

When Eakin raised in another part of the argument about why the issue should not just be left to the General Assembly to pass two rounds of legislation followed by putting a constitutional amendment to the voters, another attorney for a judicial plaintiff, William T. Hangley, of Hangley Aronchick Segal Pudlin & Schiller, said that what “the constitution will bear, what it will accept and not accept, is left to the courts.”

During another part of the argument, Eakin said that when judges run for office, they know that they will be treated differently from other elected officials because they are purposefully insulated from political pressures because their terms are longer, they will not have to face public, partisan elections for their re-elections and that their compensation cannot be changed during their terms of office. But state-court judges also know that they will have to eventually leave office and move on, Eakin said.

McCaffery also argued “when we run for office we understand we cannot serve past the age of 70.”

When McCaffery pointed out that judges could seek a change in mandatory retirement through the legislative process, Heim said that does not change the circumstance that the current constitution already violates the rights of current members of the judiciary and that the framers of the state constitution set it up so that if inalienable rights in the constitution are infringed that those infringing constitutional provisions have to be stricken.

Baer asked if additional fundamental rights can be created under Heim’s theory that there are inviolate rights, now enshrined in the constitution, that make other constitutional provisions potentially unconstitutional. Heim said that indefeasible, inalienable rights can be added but that they cannot be diminished in any way.

Hangley argued that when judging the constitutionality of public policies on a rational basis, that “even for the least suspect of classes” there must be a fair and substantial relationship between the classification of a group of people and the object of the legislation.

There is not a fair and substantial relationship between classifying judges on the basis of age and the stated policies of the 1968 constitution, which included that: judges tend to become more senile over the age of 70; that it would put more judges on the bench because senior judges would join commissioned judges in the ranks of the judiciary; that other states had mandatory retirement for judges; and that mandatory retirement would spare the unpleasantness of determining whether particular judges are disabled, Hangley said.

Eakin mused that the court might not be precluded from finding a salutary purpose for mandatory retirement other than those articulated by the constitution framers.

Todd also said there might be a rational basis for having judges retire in the year in which they turn 70, especially in the high court itself because of the small number of justices.

Todd also said that a rational basis for mandatory judicial retirement could exist in small judicial districts in which one would not want to “see one or two people retain the power of that county’s judiciary endlessly.”

But Hangley said there is no rational relationship between the desire for new judges in the Pennsylvania judiciary and the dividing line that allows judges to serve up to the age of 70 but keep their elected commissions over the age of 70.

Hangley said that the basis for the 1968 constitutional provision mandating that the judiciary retire in their 70th year implicates the “sensitive classification” of age for which even more scrutiny by the six sitting justices is necessary. Public policies regarding age is a sensitive area that must be looked at by the judiciary to see if there is a “closer relationship between the classification you make and the policy that you’re trying to accomplish,” Hangley said. Hangley argued that there was not such a “closer relationship” between classifying judges on the basis of age and the public policy rationales behind the constitutional amendment.

McCaffery argued there is a growing incidence of dementia, that it is unfair to president judges, especially in smaller counties, to have to say to judges with deteriorating mental conditions that it is time for them to step down, and that it is unfair to litigants whose cases are heard by impaired judges.

When Baer asked if the state constitution was coterminous with the federal Constitution, Hangley said the state constitution provides greater protection than the federal Constitution but DeLone said they are coterminous.

There also were moments of levity in the arguments. When Hangley stated that one of the objects of mandatory retirement was that judges tend to become more senile over the age of 70, Todd piped up, saying that it’s people, not just judges, that become senile. Then Eakin quipped that judges, however, do tend to become a lot more senile than ordinary folks.

The Supreme Court heard the claims of 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 case.

There also are lawsuits in federal court as well as one in Commonwealth Court challenging the mandatory retirement provision.

There also is legislation pending in the Senate that would put forth a constitutional amendment to eliminate mandatory retirement entirely, and there is legislation pending in the House of Representatives that would lift the mandatory retirement age up to 75.

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