Jon Campisi Jul. 22, 2013, 6:53am


Pennsylvania’s highest court has once again determined that the state’s mandatory

retirement age for judges doesn’t run afoul of the constitution.

In the case of Friedman v. Corbett et al., over which the Supreme Court took plenary jurisdiction from a case that had been before the Commonwealth Court, the justices ruled that the mandatory judicial retirement age of 70 does not constitute discrimination under Article 1 of the commonwealth’s constitution.

In June, the justices had taken up the consolidated cases of Driscoll v. Corbett and Tilson v. Corbett, which presented similar legal challenges.

While the high court previously conceded that people may be living longer today than in the late 1960s, when the state constitution was amended to include the mandatory judicial retirement age, and a judge’s mental faculties could be in better shape during this day and age, those factors were not enough for the plaintiff judges to win their argument that the retirement age constituted a violation of their constitutional rights.

In those prior two cases, the justices ruled that the mandatory retirement age for judges passes the rational basis test.

“As for any demographic changes that have taken place since the amendment was adopted in 1968, moreover, they are irrelevant,” the court wrote in its Driscoll opinion. “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.”

In Friedman, the plaintiff judges argued that the forced retirement violated their ability to finish out a full elected term.

All judges in Pennsylvania are elected.

The justices cited the precedent established in Driscoll when weighing the Friedman challenge, determining that nothing in the plaintiffs’ application for relief convinces the court that a factual record developed by the plaintiff judges would aid the high court in ruling on the commonwealth’s demurrer.

The only two new substantive issues raised in Friedman that weren’t settled in Driscoll were if citizens who voted for a judge would be deprived of the ability to enjoy the “full service” of the jurist, and whether a 2001 state constitutional amendment changing the judicial retirement date from the day a judge turns 70 to the end of the year in which he or she turns 70 is irrational and unconstitutionally discriminatory because it results in a retirement age based solely on the contingency of the judge’s birthday, according to the Supreme Court opinion.

The plaintiffs had claimed that the second argument “compounds the irrationality of the 1968 amendment” creating the mandatory retirement age.

The justices determined that the Dec. 31 retirement date is not irrational. To the contrary, the high court wrote, “it serves multiple rational purposes related to the public interest.”

First, it improves the “orderly succession of judges or justices by standardizing the retirement date of an outgoing judge so that it occurs at the end of the calendar year,” and secondly delaying retirement until years’ end reduces or eliminates judicial vacancies that previously arose when a jurist was forced to retire in the middle of the year, the opinion states.

“Such reduction or elimination serves to lengthen the term of an elected judge while shortening the term of a judge who is appointed to fill a vacancy,” the high court wrote.

The justices also wrote that the mandatory judicial retirement provision’s discriminatory effect is minimal, “in that the variance in actual retirement ages as between judges is always less than one year.

“That being the case, the standardization to end-of-year retirement readily passes scrutiny under the very lenient standard set forth in Driscoll, applicable to constitutional amendments approved by the electorate of Pennsylvania,” the opinion states.

The plaintiffs’ petition was dismissed with prejudice.

In a concurring opinion, Chief Justice Ronald D. Castille wrote that while he is sensitive to how the “health and mental acuity of mature Americans have improved since 1968, and sensitive as I am to the concerns of the distinguished jurists who have served this Commonwealth well and who have brought these challenges, I do not view the existing provisions subject to challenge, problematically discriminatory as they are, to be unconstitutional under our charter …”

Castille, who will soon have to leave the bench himself since he, too, is turning 70, wrote that the high court was bound by case law in this matter.

In the Driscoll opinion, the Supreme Court wrote that the legislative route would be the proper means in which to change mandatory judicial retirement, as was the case when the state’s constitution was previously amended to include the retirement provision.

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