Six plaintiffs challenging the mandatory retirement of judges in the year they turn 70 have asked the Pennsylvania Supreme Court to appoint a special master.

The plaintiffs, who include three judges, want the master to develop a factual record from the testimony of judges, law professors, sociologists and court administrators in their case after the high court exercised plenary jurisdiction over their lawsuit. Among other points, the plaintiffs said they want to present evidence of demographic trends that older Americans remain productive substantially longer than older Americans did in 1968 when the amendment was adopted.

The plaintiffs asked that Commonwealth Court Senior Judge James Gardner Colins, who already was assigned to sit in the case before the high court exercised jurisdiction, be appointed as the special master.

Last Friday, the Supreme Court, which heard oral arguments in two other cases attacking mandatory judicial retirement as unconstitutional, assumed jurisdiction over the third such lawsuit in Commonwealth Court.

But plaintiffs Commonwealth Court Senior Judge Rochelle S. Friedman, Bucks County Court of Common Pleas Judge Alan M. Rubenstein, Philadelphia Court of Common Pleas Senior Judge Eugene Edward J. Maier and three others said in their petition that denying them the "right to introduce evidence to support these claims and to create a fully developed record would abrogate petitioners’ due process rights, guaranteed by both the 14th Amendment to the United States Constitution and by the Pennsylvania Constitution’s Declaration of Rights."

During oral arguments last week in the two cases in which the plaintiffs petitioned before the Supreme Court, Justice J. Michael Eakin asked the attorney for the commonwealth if the three cases could be considered by the high court. Eakin also asked if all three cases could be rejected because of the Gondelman v. Commonwealth precedent rejecting a prior constitutional challenge to mandatory retirement.

J. Bart DeLone, a senior deputy attorney general who argued against overturning the retirement requirement in both the Supreme and Commonwealth courts, said in response to Eakin that Gondelman controls all three cases.

The plaintiffs said in their petition for a special master that Gondelman is not as strong of a precedent as DeLone makes it out to be because Gondelman stated that judges’ challenge to their mandatory retirement would be convincing if directed at legislation, regulation or a judicial decision. So Gondelman "necessarily concluded that mandatory retirement infringed on rights and liberties" of, among other fundamental rights, "enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness," the petition said.

The Supreme Court’s order said it was exercising plenary jurisdiction because of the "substantial overlap" in issues between the three cases.

The plaintiffs, however, argue that their case differs for at least two reasons. One, they argue, Gondelman was decided before the 2001 constitutional amendment that changed mandatory retirement from a judge’s 70th birthday to the end of the year in which judges turn 70, and that amendment "only compounded the irrationality of the 1968 amendment by establishing a classification on the mere contingency of the month and day on which an individual judge was born." Two, their case involves the claims of three voters, which were not claims present in Gondelman.

"Petitioners respectfully contend that despite the overlap of certain issues between this action and the [other two] appeals, the petitioners here raise substantially different issues that should only be decided following an evidentiary hearing and based on a fully developed record," according to the petition.

The presence of the three voters is beside the point, because they "are presenting the same claim that the Supreme Court rejected in Gondelman," wrote DeLone, Attorney General Kathleen G. Kane and John G. Knorr III, chief deputy attorney general, in the Commonwealth Court brief.

While the plaintiffs claim the 2001 amendment "exacerbates the violation of Article I," the state’s brief said, "But this, too, can make no difference: the holding in Gondelman is that in forming or altering their government, the people are not constrained by the provisions of Article I," which spells out the fundamental rights Pennsylvanians have under the state constitution.

The Pennsylvania Declaration of Rights, enshrined in Article I of the state constitution, was not granted by the constitution, but derives from the theories of natural law philosophers, the plaintiffs argued in their brief, citing the 1986 Pennsylvania Supreme Court case of Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance. The rights were preserved by the constitution, not created by the constitution, the plaintiffs further argued in citing the Supreme Court precedent.

The petitioners’ counsel, Tom Groshens of Sprague & Sprague, said that while the attorney general’s position is that while Gondelman said it is a justiciable question whether an amendment to the constitution could be unconstitutional, the answer always must be no because any amendment reflects the will of the people. But that argument ignores the distinction that the Declaration of Rights reflects natural law principles that predate the constitution and that fundamental rights would not mean anything if they could be abrogated by a constitutional amendment adopted by the will of the people.

"If you take a strictly positivist view," then it would be impossible for one provision of the constitution to be unconstitutional, but if you take a natural law perspective, then one provision of the constitution can be unconstitutional if it strips people of those inherent rights that predate Pennsylvania government, Groshens said.

The Attorney General’s Office declined comment on the petition.

The plaintiffs also argued that they need a fully developed record to show that judges forced to retire at the age of 70 face significant barriers to obtaining employment in the legal profession as well as the demographic trends that "Pennsylvania citizens 65 and older are living longer, working longer, and remaining productive substantially longer than their 1968 counterparts." They also argued that would present evidence of the "diminished pay, status and benefits of senior judges," including that per diem payments to senior judges are reduced dollar-for-dollar for any pension distributions.

Colins said, when hearing preliminary objections to the complaint, that he was not sure Gondelman applies to all the theories in the Friedman suit — "indeed, the people elected the individual jurists to a 10-year term."

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