Jon Campisi Jun. 19, 2013, 12:55pm


The Pennsylvania Supreme Court has denied a petition by a handful of judges challenging

the state’s mandatory judicial retirement age.

In a 29-page ruling issued June 17, the justices ruled that the state constitutional provision mandating that jurists retire at the end of the year in which they turn 70 is not, in itself, unconstitutional.

Earlier this spring, the high court agreed to hear the consolidated cases in an expedited fashion.

One case was brought by Montgomery County Common Pleas Court Judge Arthur Tilson while the other involved the combined cases of Senior Westmoreland County Common Pleas Court Judge John Driscoll and Philadelphia Common Pleas Court Judges Sandra Mazer Moss and Joseph D. O’Keefe.

The defendants in the cases were Gov. Tom Corbett, state Secretary of the Commonwealth Carol T. Aichele and state Court Administrator Zygmont A. Pines.

The plaintiffs claimed that the mandatory retirement provision in the commonwealth’s constitution violates Article 1 of the state constitution because it discriminates against jurists by requiring them to retire in their 70th year of life.

In its decision, the high court wrote that while “there is colorable merit to Petitioners’ position that, theoretically at least, there is some possibility that a constitutional amendment might impinge on inherent, inalienable rights otherwise recognized in the Constitution itself,” the court does not believe that “the charter’s framers regarded an immutable ability to continue in public service as a commissioned judge beyond seventy years of age as being within the scope of the inherent rights of mankind.”

The mandatory judicial retirement provision was added during the 1967-68 limited constitutional convention with the approval of voters.

Prior to that, there was no mandatory judicial retirement age.

This latest collective challenge to the provision was not the first time this section of the commonwealth’s constitution was questioned; there was similar litigation in the late 1980s.

Those earlier challenges, however, were unsuccessful, with both state courts and the U.S. Supreme Court rejecting the judges’ arguments, the record shows.

In two of the most recent challenges, the plaintiffs argued that because they were elected, and subsequently retained, to 10-year terms, it’s not right for them to be forced from the bench prior to the expiration of their terms.

The plaintiff judges also argued that the prior cases upholding similar past challenges should no longer apply due to societal and demographic changes that have taken place in recent years, such as an increase in longevity and a decline in cognitive impairment among older adults.

The petitioners sought to have the high court – Chief Justice Ronald Castille is himself approaching the mandated retirement age of 70 – nullify this section of the state constitution and issue a permanent injunction barring the named commonwealth defendants from enforcing the provision.

The defendants had argued that the 1968 constitutional amendments were an example of “altering” or “reforming” the government, contending that the mandatory retirement provision “embraces the right of the people ‘to determine the conditions under which those entrusted with dispensing the judicial power of the Commonwealth shall serve,’ limited only by the United States Constitution.’”

A separate case filed at the federal level that also challenges the state retirement provision has been stayed pending the outcome of the state court actions.

It is unclear when that case would proceed now that the state action has been settled.

As for the recent Pennsylvania Supreme Court decision, the justices, who acknowledged the “degree of discomfort in presiding over the present matter, as, obviously, members of this Court might benefit from a ruling favorable to Petitioners,” nevertheless decided that the mandatory retirement provision passes legal muster.

In its ruling, the high court rejected the petitioners’ contention that the age-related provision deserves a heightened level of judicial scrutiny.

The justices also declined to reconsider the precedent set by the previous case challenging the retirement provision.

The Supreme Court at the time determined in that case, titled Gondelman v. Commonwealth, that Article V, Section 16(b) of the Pennsylvania Constitution is supported by a rational basis.

The justices wrote that while they have no doubt that some judges would be capable of serving “with distinction” beyond their mandatory retirement date, “there are overall systemic goals that are rationally related to valid governmental societal interests.”

“As for any demographic changes that have taken place since the amendment was adopted in 1968, moreover, they are irrelevant,” the court wrote. “Petitioners cite to no authority suggesting that a constitutional amendment that was valid at its inception can become unconstitutional due to societal changes that have occurred with the passage of time.”

“There may be some ambiguity concerning whether legislation that was, at the time of its enactment, rationally related to a legitimate state interest, may subsequently be stricken based on a change in underlying circumstances,” the ruling continued. “Here again, however, the fact that Article V, Section 16(b) was approved by the people pursuant to their inherent right to amend their Constitution, distinguishes this case from matters involving legislative enactments.”

The court also shot down the argument by the plaintiffs that the mandatory retirement provision violates substantive due process, writing that, for one thing, “judges have no property interest conferred by their election or retention in serving as commissioned jurists past the date set by the Constitution for their retirement.”

In the end, the justices determined that a mandated retirement age of 70 for state judges “implemented according to the will of the people is rational and amenable to modification according to their dictates. Petitioners, therefore, are not entitled to relief on their due process claim.”

The ruling states that while certain societal factors may have changed since the mandatory judicial retirement provision was added to the state constitution, “the proper approach of conforming the Constitution more closely with Petitioners’ vision of how experiential changes should be taken into account is to pursue further amendment to the Pennsylvania Constitution.”

The high court determined that the petitioners did not state a claim on which relief may be granted.

The case was remanded to the Commonwealth Court with orders to dismiss the case with prejudice in favor of the commonwealth defendants.

The ruling was unanimous, and signed by all six justices: Chief Justice Castille, along with Justices Max Baer, J. Michael Eakin, Debra Todd, Seamus McCaffery, and Thomas Saylor.

Saylor wrote the decision.

There are currently only six justices on the bench because of the corruption conviction and subsequent resignation of former Justice Joan Orie Melvin.

Justice Eakin filed a concurring opinion, joined by Justices Todd and McCaffery, in which he wrote that while it may be true that individuals, including judges, don’t intellectually deteriorate as rapidly as they did in years past, “this argument is unavailing – as the majority correctly points out, a constitutional provision does not become void or voidable simply because the premise behind its enactment no longer finds the support it once did.”

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