Jon Campisi Nov. 15, 2012, 11:21am

A handful of Pennsylvania trial court judges, including four Philadelphia Common Pleas

Court jurists, are challenging the state’s mandatory retirement age for judges.

The six judges filed suit in Pennsylvania’s Commonwealth Court on Nov. 14, alleging that the provision in the state’s constitution that mandates all judges retire at the end of the year in which they turn 70 violates their rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution.

The lawsuit was filed by nationally recognized trial lawyer Robert Heim of the firm Dechert LLP.

“Some of our finest and most experienced legal minds are being denied unfairly the opportunity to serve the people of the Commonwealth of Pennsylvania, solely because of their age,” Heim said in a statement. “In today’s world, there is no good reason to think that judges who are 70 are not equally competent as judges who are younger.”

The plaintiffs named in the complaint are Judge John W. Herron, administrative judge of the Philadelphia Common Pleas Court’s trial division; Senior Philadelphia Common Pleas Court Judge Benjamin Lerner; Philadelphia Common Pleas Court Judge Sandra Mazer Moss, who previously oversaw the court’s mass tort program; John Driscoll, the administrative judge of Westmoreland County’s Juvenile Court; and Joseph D. O’Keefe, administrative judge of the First Judicial District’s Orphans’ Court Division.

The FJD is Philadelphia’s court system.

The defendants named in the civil action are Pennsylvania Gov. Tom Corbett, Pennsylvania Secretary of State Carol Aichele, Pennsylvania Treasurer Robert McCord, and state Court Administrator Zygmont Pines.

“Plaintiffs file this action against Defendants because Defendants will or already have prematurely forced Plaintiffs out of their jobs for no reasonable, or even rational, basis, in violation of Plaintiffs’ rights under the Constitution of the United States,” the complaint reads.

The plaintiffs request that Commonwealth Court nullifies and declares invalid Article V, Section 16 of the Pennsylvania Constitution that requires all justices and judges of the commonwealth to retire at the end of the calendar year in which they turn 70 years old.

All judges in Pennsylvania are elected, with trial court and appellate jurists serving 10-year terms, and magisterial district judges, Philadelphia Municipal Court judges and Philadelphia Traffic Court Judges serving six-year terms.

The complaint alleges that in the face of an increasing caseload in Pennsylvania courts, it is “unlikely that civil cases could be adjudicated within a reasonable time period or that the Speedy Trial Act in criminal cases would be complied with, without the services of judges over seventy years of age.”

Judges over 70 are given a special exemption to serve as “senior judges,” the suit states, which is when they are assigned by the state Supreme Court in temporary judicial service roles, although there is no provision for physical or mental examination of judges who apply for senior status.

These “senior judges” are also compensated less than full-time judges under age 70, a point of contention for the plaintiffs in the case.

“There is no reasonable – or even rational – basis for paying senior judges less money for the same work than judges who have not yet been forced to retire,” the complaint states.

The lawsuit goes on to state that the mandatory retirement provision “unfairly and arbitrarily deprives Pennsylvania justices and judges of their employment solely on the basis of age, rather than on the basis of any rational or reasonable test of physical, mental, or professional ability, contrary to federal law as set out in the Fourteenth Amendment to the United States Constitution.”

All six plaintiffs in the case were elected to 10-year terms that extend beyond their forced retirement dates, the suit says, and therefore the electorate “unreasonably is being deprived of their service solely on the basis of an arbitrary age classification without regard to the Plaintiffs’ individual abilities to well and faithfully perform their judicial duties.”

The complaint says that many states and the federal system have no mandatory retirement age for judges, and that the expanding use of technology and increasing utilization of law clerks also enables judges to remain “productive” past age 70.

“There can be no doubt that the United States of America has had a long and unfortunate history of age discrimination,” the lawsuit states. “Many citizens in our country have been subjected to stereotyped distinctions between the young and the old, including that older people are often senile, incompetent, lack productivity, suffer from rigid thinking, are unable to continue to learn, forgetful, and likely to develop dementia.

“The mandatory retirement provision of the Pennsylvania Constitution has the lamentable effect of perpetuating these pernicious stereotypes.”

Aside from seeking to have the courts nullify and declare unenforceable the retirement age provision in the state constitution, the lawsuit also seeks to have Lerner, the senior Philadelphia Common Pleas Court judge, restored to active judge status.

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