Jon Campisi Jan. 31, 2013, 8:35am

Two Pennsylvania legislators are pushing to change a provision in the state constitution

that governs mandatory judicial retirement.

On Jan. 10, state Rep. Kate Harper, a Montgomery County Republican, introduced House Bill 79, which would raise the mandatory retirement age for judges from 70 to 75.

Currently, the commonwealth’s judges must retire by the end of the year in which they turn 70.

About a week later, on Jan. 18, state Sen. Stewart Greenleaf, a Montgomery County Republican who heads up the Senate Judiciary Committee, unveiled Senate Bill 85, which would scrap the mandatory retirement age for judges entirely.

Both bills would require amending Pennsylvania’s Constitution.

Harper’s proposal has about 13 cosponsors at this point while Greenleaf’s measure appears to have seven cosponsors.

Mandatory judicial retirement age in Pennsylvania has become a touchy subject in recent times, so much so that some state judges are currently challenging the provision in court.

In mid-November of last year, six judges, including five from Philadelphia, filed suit in Commonwealth Court over allegations that the state’s mandatory retirement age for judges as laid out in the Commonwealth Constitution violates their rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution.

Soon after the filing of the complaint, two other judges, one from Fayette County and one from Montgomery County, filed their own lawsuit containing similar allegations.

The plaintiffs seek to have Commonwealth Court nullify and declare invalid Article V, Section 16 of the Constitution of the Commonwealth of Pennsylvania that mandates all justices and judges in the state to retire by the end of the calendar year in which they turn 70 years old.

Trial and appellate court judges serve 10-year terms while Philadelphia Municipal Court judges, Philadelphia Traffic Court judges and state magisterial district judges are elected to six-year terms.

The original lawsuit, the one filed in Commonwealth Court, has since been split up into two separate lawsuits, one being handled at the U.S. District Court in Philadelphia and the other playing out in state court.

Plaintiffs’ attorney Robert Heim, of Dechert LLP, was quoted in the Legal Intelligencer as saying that the move to divide the plaintiffs was done to avoid any arguments about whether or not remand would be appropriate in the case.

Gov. Tom Corbett and Pennsylvania Secretary of State Carol Aichele had removed the original suit to federal court soon after its filing.

The plaintiffs in the suit in federal court are Benjamin Lerner, a senior judge of the Philadelphia Court of Common Pleas; John W. Herron, the administrative judge of Philadelphia Common Pleas Court’s Trial Division; and Leonard N. Zito, the administrative judge for the Criminal Division of the Northampton County Court of Common Pleas.

The plaintiffs in the lawsuit that has remained in Commonwealth Court are John Driscoll, administrative judge of the Westmoreland County Juvenile Court; Sandra Mazer Moss, a judicial team leader in the civil section of the Philadelphia Common Pleas Court’s Trial Division; and Joseph D. O’Keefe, the administrative judge of the Orphans’ Court Division in the Fifth Judicial District, which is Philadelphia’s court system.

As for the measures designed to change the retirement age, or scrap it all together, the advocacy group Pennsylvanians For Modern Courts has quoted Harper and Greenleaf, the two lawmakers behind the respective bills, as saying that the goal is to promote fairness in judicial systems and regulations.

Harper argued that the requirements for mandatory retirement are “not a fair way to judge a person’s fitness for a job,” while Greenleaf has said that forced retirement is a form of discrimination not applied to other public officials and that the state constitution “already alternatively allows for judicial removal based on mental or physical disability,” according to PMC.

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